02-1472 +++$+++ 2 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We will now hear argument in the Cherokee Nation against Thompson and Thompson against the Cherokee Nation. Mr. Miller.
02-1472 +++$+++ 4 +++$+++ FALSE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: These two contract cases concern whether the Government is liable in money damages under the Contract Disputes Act and section 110 of the Indian Self-Determination Act when the Secretary fails to fully pay a contract price for the --
02-1472 +++$+++ 5 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you mind explaining to us how these two cases relate? The Court of Appeals for the Federal Circuit decision went one way and the Tenth Circuit went another. And are the claims at all overlapping? How are they differentiated?
02-1472 +++$+++ 6 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice O'Connor. They're -- they're not overlapping. The claims in the Federal Circuit case involved three contracts covering fiscal years 1994, 1995, and 1996. And the Cherokee contract at issue in the case that went through the Tenth Circuit is fiscal year 1997 contract and funding agreement. The section -- remedial section of the act, section 110 --
02-1472 +++$+++ 7 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But they're certainly at odds on the legal theory.
02-1472 +++$+++ 8 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, they are, Your Honor. The Federal Circuit applied standard, bedrock Government contracting law, primarily the rule that when a contract payment is conditioned on there being an appropriation, the payment right vests in full once the appropriation is enacted by Congress. And secondly, the court ruled that the Indian Self-Determination Act does not bar the payment of the contracts in this case under the circumstances presented. And to the contrary. We submit that the Secretary's construction of that clause would undo the act, would undo section 106(b) of the act --
02-1472 +++$+++ 9 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are the circumstances any different in the two situations, the Cherokee Nation case and the one in the Federal Circuit? Are -- are the circumstances, giving rise to the claim, different in any respect that could account for a difference in outcome?
02-1472 +++$+++ 10 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice O'Connor. There -- there is no difference in that respect, and there is an overlap in -- in this sense. The Shoshone-Paiute contract that arose through the Tenth Circuit case did involve fiscal year 1996, the same fiscal year as the Cherokee contract that covered fiscal year 1996. So in that sense, both cases involved the -- the same relevant issues. The -- the key, we think, to the resolution of the act is found in the act on page 12a of the appendix to our opening blue brief. The act was amended in this section twice, in 1988 and in 1994, for three reasons: to secure contract funding, to reduce the Federal bureaucracy, and to eliminate secretarial funding discretion over contract funding issues. In section 12a, 450j-1(a), the bottom half of the page, it is stated in subparagraph (1) that the amount of funds provided under the terms of self-determination contracts entered into pursuant to this subchapter shall not be less than the appropriate Secretary would have otherwise provided. And then directly pertinent to this case is subparagraph (2), which directs -- which addresses contract support costs. There shall be added to the amount required by paragraph (1) contract support costs which shall consist of certain items. Incidentally, these items typically cover the cost of insurance, audit costs, procurement costs that might otherwise be administered for the Government by the Office of Personnel Management or personnel costs that might otherwise be administered by the Office of Personnel Management.
02-1472 +++$+++ 11 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does the -- do the actual contracts reduce the -- the CSC's to a dollar amount or --
02-1472 +++$+++ 12 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, they do.
02-1472 +++$+++ 13 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so we know -- they -- they knew at the moment the contract was signed what it was going to cost.
02-1472 +++$+++ 14 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Justice Souter. In the case of the Shoshone-Paiute contract, when the parties decided to renegotiate the contract amount, they entered into an amendment to specify the new, updated contract amount.
02-1472 +++$+++ 15 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't want to get ahead of you in taking us through the statute, so you can defer the question if -- if you choose. But it seems to me relevant to (a). Does -- is -- is part of the submission that the Government used some of the funds that otherwise would have gone to you for its own monitoring and -- of -- of health contracts and that that's what's in dispute? Or was it just general overhead for other programs it used?
02-1472 +++$+++ 16 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it is precisely, Justice Kennedy, what -- what you stated. In fact, we can turn directly to page 14a --
02-1472 +++$+++ 17 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I stated an or. I -- what I -- I stated at the outset?
02-1472 +++$+++ 18 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the Government took money for its own Federal functions instead of -- including contract monitoring --
02-1472 +++$+++ 19 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Including contract monitoring.
02-1472 +++$+++ 20 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Including contract monitoring. Including contract monitoring. In fact, they say so in their brief and -- and defend that action. The -- the sections on page 12a and 13a articulate in quite a lot of detail the nature of the contract support costs that must be added.
02-1472 +++$+++ 21 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ These are strange contracts, of course, aren't they? I mean, are there any other contracts that the Government has to enter into? I mean, the Secretary has to give these tribes the authority to take over, in effect, implementation of the -- of a Federal health program, doesn't he?
02-1472 +++$+++ 22 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Justice Scalia.
02-1472 +++$+++ 23 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I -- why would you expect that this strange kind of contract should -- should, prima facie, be governed by the same rules as to appropriations as other contracts --
02-1472 +++$+++ 24 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because --
02-1472 +++$+++ 25 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- where -- where an agency, having due regard to how much money is appropriated, will limit the number of contracts it enters into? But -- but here you're creating a situation where the agency has to contract and yet has no control over having enough money to -- to meet the contractual obligations. It seems to me a -- a strange way to run a railroad.
02-1472 +++$+++ 26 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it is a unique contractual situation, Justice Scalia, but one that Congress fully anticipated. And -- and I would explain it this way. First of all, there is the Contract Disputes Act which Congress said applies to these contracts. The contracts were so unique that prior to 1988, the Interior Board of Contract Appeals, in a decision called the Busby case, had ruled that these contracts could not be enforced under the Contract Disputes Act precisely for the reason Justice Scalia articulated. Congress changed that. In 1988, Congress amended section 110 of the act, reproduced at the bottom of page 26a, and gave the Court of Claims, then the Court of Claims, and the district courts concurrent jurisdiction over money damages claims under the Contract Disputes Act. And the legislative history explains that Congress did this precisely to overcome the Busby decision and to make these contracts enforceable for the stated contract price.
02-1472 +++$+++ 27 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But further to Justice Scalia's point, don't the contracts in question themselves contain clauses that say this is not a procurement contract?
02-1472 +++$+++ 28 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the procurement contract -- that is correct. Not the contracts themselves, Your Honor. The -- the act says that --
02-1472 +++$+++ 29 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, the act says that they're not procurement contracts.
02-1472 +++$+++ 30 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the contracts are not procurement contracts, Justice Kennedy. That's correct. These contracts began as procurement contracts. They had been procurement contracts, and even still, they were not enforced under the Court of -- the Interior Board of Contract Appeals decision in the Busby decision. Congress relieved the contractors of the procurement system because they felt that the agency had built up an enormous contract monitoring bureaucracy which it wanted to eliminate. And for that reason, it eliminated the procurement rules in the hopes that the contract monitoring bureaucracy would be eliminated along with it.
02-1472 +++$+++ 31 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Miller, do --
02-1472 +++$+++ 32 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg.
02-1472 +++$+++ 33 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- on -- on the interpretation you've just explained to us, does that mean that the Secretary has no authority under this statute or generally to reserve some portion of this for what you call Federal functions, that it -- every penny of the appropriation could go to the costs of this contract and nothing left in the till for the so-called Federal functions?
02-1472 +++$+++ 34 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, I -- I would put my answer in this context. There are many sources from which the Government could have reprogrammed to pay these contracts. It could have been, yes, as we submit, from the funds spent on Federal functions and secretarial administration. It could have been from the up to $88 million increases Congress was making every year. It could have been from the up to $98 million in leftover appropriations the agencies had every year, and it could have been from the regional and headquarters offices that the agencies had where they don't administer services.
02-1472 +++$+++ 35 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But your -- your answer is, yes, if it came to that, they --
02-1472 +++$+++ 36 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's the duty Congress imposed upon the Secretary. The Secretary was free not to reprogram. That's -- that's a choice the Secretary had and the Secretary made it. The question is what are the ramifications of that choice and we submit --
02-1472 +++$+++ 37 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, let me ask you another question related. Suppose -- this is an individual action. These are individual actions. They're not class actions.
02-1472 +++$+++ 38 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct, Your Honor.
02-1472 +++$+++ 39 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do the ones who come to court to sue get paid in full even though there may be many other self-determination contracts out there, and that if you gave them all their fair share, none of them would be paid in full? Does it just depend on first come to court, first served, and the less litigious are just out of luck?
02-1472 +++$+++ 40 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we -- we do not believe that that -- that should be the outcome. That would advantage the contractors that came forward and not take account of the entire situation. We think the global situation has to be looked at. The total amount of the contracts that were not paid in fiscal year 1994 --
02-1472 +++$+++ 41 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, you can't get blood out of a turnip. I mean, Justice Ginsburg is asking the question, what if there is not enough money to go around?
02-1472 +++$+++ 42 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If there were only sufficient money to pay half of the contract shortfalls --
02-1472 +++$+++ 43 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
02-1472 +++$+++ 44 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- without violating the clause and the Secretary had the discretion not to reduce appropriations, or he could, for programs serving other tribes, and then the tribes would only be entitled to half of the shortfall, if there was only a sufficient amount of money.
02-1472 +++$+++ 45 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Didn't the tribes get notice they might not get the full amount of the -- the CSC, and so they had ample opportunity to cut back on their spending?
02-1472 +++$+++ 46 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Kennedy, and -- and to the contrary. In fiscal year 1994, the Indian Health Service was telling everybody they were paying them in full. They told the General Accounting Office they paid everybody in full on page 32 of the GAO report cited in the Government's brief. But --
02-1472 +++$+++ 47 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So these -- these are reliance damages in a sense.
02-1472 +++$+++ 48 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the tribes expected to be paid. The Shoshone-Paiute tribes were told they would be paid in full in the first year.
02-1472 +++$+++ 49 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, they -- they were out of pocket for money they spent before they knew, other than the statutory notice they had, that they wouldn't get the full amount?
02-1472 +++$+++ 50 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. That is correct.
02-1472 +++$+++ 51 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, when do the tribal contractors know how much money the Government actually will have available to spend?
02-1472 +++$+++ 52 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The contractors don't know until the year is over because throughout the year, the Government reserves the power, although not exercised, but stated in a circular, to reprogram. And the appropriations --
02-1472 +++$+++ 53 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what do you mean by that? You said a second ago the Secretary had the option to reprogram. What do you mean by reprogram?
02-1472 +++$+++ 54 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ When the Secretary prepares a budget to the Congress, it states usually a lump sum amount of, say, $1.8 billion. We -- we take $400 million off the top or $300 million off the top because that was specified by Congress for certain purposes. But the balance is a lump sum. The Secretary crafts a budget. The budget is not adopted by Congress, just a dollar amount is adopted by Congress. Now, Congress can step in and take a particular item and earmark that item and cap it if it chooses, but it didn't do that in these years.
02-1472 +++$+++ 55 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but the -- the tribes have to enter contracts not knowing how much money is going to be there at the end of the day?
02-1472 +++$+++ 56 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The tribes enter into contracts, as most Government contractors do when they enter into contracts before an appropriation is made, not knowing if the agency will have the money to pay them. That's okay. The problem is when the statute says it's subject to the availability of appropriations and Congress enacts the appropriations. It's been the law for 120 years that at that point, the right to payment vests and the tribe is entitled to be paid.
02-1472 +++$+++ 57 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. So how was that appropriation money in fact used by the Federal Government, do you say?
02-1472 +++$+++ 58 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Federal Government --
02-1472 +++$+++ 59 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There was the appropriation.
02-1472 +++$+++ 60 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
02-1472 +++$+++ 61 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the tribes had already entered into contracts. Now, how was that lump sum used?
02-1472 +++$+++ 62 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The agency then, under this Court's teaching in Lincoln v. Vigil, has complete discretion over how it spends its appropriation except insofar as --
02-1472 +++$+++ 63 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that what you mean by programming?
02-1472 +++$+++ 64 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, thank you, Justice Souter, for taking me back to your question. What we mean is that the Secretary submits a budget, but the budget is not binding on the Secretary. It's not binding as a matter of law because Congress didn't adopt it. And as conditions change over the course of the year, the agency readjusts its budget, which we call reprogramming.
02-1472 +++$+++ 65 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So programming is allocating various segments of the lump sum to various purposes.
02-1472 +++$+++ 66 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
02-1472 +++$+++ 67 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
02-1472 +++$+++ 68 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the Secretary retains complete discretion as this Court taught --
02-1472 +++$+++ 69 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And is that done without regard to the contract amounts that the tribes have entered into?
02-1472 +++$+++ 70 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it should not be done without regard to the contract amounts --
02-1472 +++$+++ 71 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that in fact how it was done?
02-1472 +++$+++ 72 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is in fact how it was done.
02-1472 +++$+++ 73 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And is it still done that way?
02-1472 +++$+++ 74 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the times have changed. Since 1998, fiscal year 1998, Congress has imposed caps on the contracts and court costs that the agency has. So there's no question the agency cannot pay more than Congress gives it. When Congress only gives it $100 million or $200 million for contract support costs, that's it. The Secretary cannot be sued for failing to pay more.
02-1472 +++$+++ 75 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But didn't -- didn't Congress, even before that, impose a significant limitation on how much the Secretary could pay? What do you with the provision in -- in (b) of -- of the section that you were reading from? Notwithstanding any other provision in this subchapter, the provision of funds under this subchapter is subject to the availability of appropriations and the Secretary is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe or tribal organization under this chapter. I mean, what -- what money that the Secretary expends is -- is not expended for programs, projects, or activities that serve a tribe?
02-1472 +++$+++ 76 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, we read this -- this clause with -- keeping in mind the first sentence first of the sentence. The first sentence, which begins on the preceding page, page 14a, says that the amount of funds required by subsection (a), (1) shall not be reduced to make funding available for contract monitoring or administration by the Secretary. And the subparagraph (3) in the middle of page 15a, shall not be reduced by the Secretary to pay for Federal functions.
02-1472 +++$+++ 77 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's all very good, but --
02-1472 +++$+++ 78 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But then there's an exception.
02-1472 +++$+++ 79 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- then the last paragraph begins with the word notwithstanding any other provision of this subchapter. So this --
02-1472 +++$+++ 80 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We --
02-1472 +++$+++ 81 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- it seems to me, overrides everything else. Unless -- unless you can persuade me that that -- that that provision doesn't give the Secretary the authority to -- to allocate the available funds among other activities that serve tribes, I -- I think it trumps whatever else you appeal to.
02-1472 +++$+++ 82 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, for -- for two reasons we think it cannot. First of all, if that exception swallowed up the rule set forth in the first sentence, it would defeat the whole purpose of the act. And more, in the statute on page 21, there is a mandatory rule of construction that Congress has articulated which, interestingly enough, the Government never cites in the statutory interpretation case. And this rule says on page 21, 1(a)(2), each provision of the act --
02-1472 +++$+++ 83 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wait.
02-1472 +++$+++ 84 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Page -- sorry --
02-1472 +++$+++ 85 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ 21 of --
02-1472 +++$+++ 86 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ 21a of our opening blue brief.
02-1472 +++$+++ 87 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, 21a, good.
02-1472 +++$+++ 88 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ 21a, correct. Each provision of the Indian Self-Determination and Education Assistance Act and each provision of this contract shall be liberally construed for the benefit of the contractor. That statement is repeated as well in every --
02-1472 +++$+++ 89 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, fine, but you still have to look at that last sentence in subsection (b) and grapple with what it means. The Secretary is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe.
02-1472 +++$+++ 90 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So what could it mean? That's our challenge.
02-1472 +++$+++ 91 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, what does it mean?
02-1472 +++$+++ 92 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We have to give it meaning. We believe it means the -- as the Secretary always said when -- and -- and said at the time these amendments were adopted in 1988, that's services on the ground, the hospitals and clinics. If I walked into the office of the headquarters of the Indian Health Service in Rockville, Maryland, I'm not going to see doctors and nurses in white jackets. I'm not going to see patients and counselors. There aren't programs serving tribes in these headquarters offices, and in these area offices, large portions of what they do are administrative functions.
02-1472 +++$+++ 93 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. May -- may I interrupt you there? And tell me if I understand the -- the position in your brief correctly. I thought the position that you took there was ultimately regardless of what the notwithstanding clause means, there's enough money to pay all the contracts in the appropriation that is actually made. And if any money is going to be squeezed, the person who's going to be squeezed or the -- is the -- is the agency itself. Its bureaucracy is going to have less money. And I understood your argument to be that given the provisions you read earlier in this section, Congress has made a positive decision that if there's a choice between paying the contract amounts and squeezing the bureaucracy, the bureaucracy gets squeezed. Is that your position?
02-1472 +++$+++ 94 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is our position.
02-1472 +++$+++ 95 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If that is your position, do you have to even grapple with difficulties about the notwithstanding clause?
02-1472 +++$+++ 96 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we still need to provide some meaning to the -- to the provision that says the Secretary may not -- does not have to reduce funding for programs serving other tribes. I guess, I think we do need to grapple with the clause in order not to --
02-1472 +++$+++ 97 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- but I thought you were saying you could -- you could -- the -- the Secretary doesn't have to reduce funding for other tribes. The Secretary can pay the full contract costs, and if anybody is going to get the short end, it's going to be the bureaucracy.
02-1472 +++$+++ 98 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's going to be the bureaucracy.
02-1472 +++$+++ 99 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Just give them the -- just give them the money.
02-1472 +++$+++ 100 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's not going to be the programs on the ground serving the tribes. It's going to be the bureaucracy.
02-1472 +++$+++ 101 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
02-1472 +++$+++ 102 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Now, it may be felt --
02-1472 +++$+++ 103 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ To put it -- this is a competition between two bureaucracies, the tribal bureaucracy that is administering the program and the Secretary's bureaucracy which is administering the program of programs. I mean, it's -- it's not as though it's a bureaucracy against the people. The whole purpose of this was to turn over the bureaucratic management of these programs from Government bureaucrats to tribal bureaucrats. I mean, it --
02-1472 +++$+++ 104 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would -- I would --
02-1472 +++$+++ 105 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you -- you paint it as though the -- you know, who cares about the bureaucrats. The -- the Government just wasn't interested in the bureaucrats. That may well be, but there -- there are bureaucrats at both ends of this thing.
02-1472 +++$+++ 106 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I say that for two reasons. First of all, the -- the Congress, in our opinion, clearly privileged the tribal contracts over the Secretary's Federal functions. But more practically, let's look at the Shoshone-Paiute Tribes. They took over a hospital that had a $5 million budget in round numbers, and the contract support costs requirement was $2 million. So the contract was in round numbers $7 million. So they get the hospital, $5 million to run it. They don't get the $2 million. Now, they have $3 million to run the hospital. It's not that they didn't get their bureaucracy. They didn't get the full hospital operational budget because they had to pay the fixed costs of carrying insurance, undertaking the audits required by Federal law. There were actual reductions in services so severe, in fact, that the Shoshone-Paiute Tribe nearly lost accreditation.
02-1472 +++$+++ 107 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can I ask you a basic question --
02-1472 +++$+++ 108 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Breyer.
02-1472 +++$+++ 109 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- which maybe others understand, but I'm confused. Imagine that this has nothing to do with Indians. It is simply an ordinary contract. Now, my understanding is that ordinary contracts say subject to appropriations. So we have to decide was there an appropriation. In our imaginary department of Government, the appropriation is $1 billion. Nothing is earmarked for anything. They enter into contracts that amount to $999 million. Now, they pay out $990 million, and their -- what the department says is, look, everybody knows we need at least $10 million to run our central bureaucracy. So there's no valid contract here. The appropriation wasn't made. Now, my understanding of ordinary Government contract law is to decide whether that $10 million was in principle available for the contracts. You look to something called the purpose-time-amount test. So was it during the same time? Yes. Is it in an appropriate amount? Yes. But is it available for this purpose? Ah, I'm not sure. All right. Now, I want -- if I have the -- the theory of it right, I want you to tell me what the money was in your case that is the equivalent of the $10 million in my example that you believe in principle was available to pay these -- for this Indian expenditure. Just pretend it's a regular contract. What is the equivalent of that $10 million?
02-1472 +++$+++ 110 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The equivalent of the $10 million would be sums not spent on anything --
02-1472 +++$+++ 111 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
02-1472 +++$+++ 112 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in this case, up to $100 million.
02-1472 +++$+++ 113 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, okay. And anything else?
02-1472 +++$+++ 114 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Any of the increases, any of the sums. And then we move to this statute --
02-1472 +++$+++ 115 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, forget this statute for a second because I'll stop you there. I want you to tell me why those sums -- I get the time. I get the amount.
02-1472 +++$+++ 116 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Why the purpose.
02-1472 +++$+++ 117 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Explain to me why it is one of the purposes for which those appropriations were made, i.e., the equivalent of the $10 million, to go pay for this.
02-1472 +++$+++ 118 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's one of the things the -- the Government and we agree upon.
02-1472 +++$+++ 119 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It was one of the purposes.
02-1472 +++$+++ 120 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ One of the purposes was paying contracts, and that's because in this act, the appropriation says here's $1.4 billion or $1.8 billion to carry out the Indian Self-Determination Act. So that satisfies the purpose test.
02-1472 +++$+++ 121 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. So you think -- you and the Government agree then that were this an ordinary contract case, there is no doubt that a legally binding contract would have been entered into and the clause, subject to appropriations, would not work for the Government.
02-1472 +++$+++ 122 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Your Honor.
02-1472 +++$+++ 123 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
02-1472 +++$+++ 124 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you can't say that the Government agrees to that. You certainly agree to it.
02-1472 +++$+++ 125 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, no. Were it an ordinary --
02-1472 +++$+++ 126 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Government --
02-1472 +++$+++ 127 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- were it an ordinary contract.
02-1472 +++$+++ 128 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In -- in the hypothetical. No. I think the Government would agree that the rule of Ferris and Blackhawk, the Dougherty rule from the Court of Claims, 1983, all stand for the proposition when you sign a contract with the Government and a lump sum appropriation comes, it's not your job to start monitoring Government operations and figuring out how much do they want to boost their functions for this or that or the other, and the --
02-1472 +++$+++ 129 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So our issue as far as you're concerned -- and I'll ask the Government the same question -- is, is this contract different from an ordinary contract because of A, B, C, D Indian reservations, et cetera? And your claim is, I can't find any difference. And their claim is there will be some difference. Is that right?
02-1472 +++$+++ 130 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. They claim these aren't contracts -- Justice Kennedy.
02-1472 +++$+++ 131 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you did say the -- these contracts were unique.
02-1472 +++$+++ 132 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ These contracts are unique. The contracts in Winstar were unique. The contracts in the United States v. New Mexico advance costs -- advance funded cost reimbursable contracts. Many contracts are unique. The question is whether the distinction makes a difference in the law. The distinction here that these are not procurement contracts, that can't be decisive.
02-1472 +++$+++ 133 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the Government says it's unique because the tribes are providing governmental services. It doesn't really cite us a case where, say, a city or a subdivision has sued under a contract.
02-1472 +++$+++ 134 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But that's not unique either because the -- the Government, the Department of Defense in Iraq contracts out governmental services, the provision of food to our troops in Iraq. That's a quintessential governmental services, feeding the military. But they contract it out. No one would suggest there that just because it's a governmental service, it qualifies that contract as a lesser contract than any other contract.
02-1472 +++$+++ 135 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, they didn't contract it out to the government of Iraq. They contracted it out to a private contractor. I mean, what -- what makes this unique is that the whole purpose of it was to give these -- these tribes more governmental power, more self-determination. The whole purpose was to enable the tribes to act as governments.
02-1472 +++$+++ 136 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. And even Congress considered --
02-1472 +++$+++ 137 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's -- that's what makes it different from private contracts --
02-1472 +++$+++ 138 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We --
02-1472 +++$+++ 139 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- even -- even with Halliburton.
02-1472 +++$+++ 140 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We --
02-1472 +++$+++ 141 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, Halliburton is not an Indian tribe and doesn't purport to be governing anybody.
02-1472 +++$+++ 142 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We submit that that difference was considered by Congress. In the 1988 amendments, there's even language that says, we're thinking about maybe calling this an intergovernmental agreement, but we've decided to call it a contract because we want it to be enforceable as a contract, just as other Government contracts for goods and services are enforced. And that was the language of the -- of the Senate report. They then imposed the Contract Disputes Act and provided a remedy in money damages. In those respects, along with the canon of construction, we believe that these contracts are fully enforceable for the stated contract amount. I'd like to reserve the balance of my time, Justice Stevens.
02-1472 +++$+++ 143 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you. Mr. Srinivasan.
02-1472 +++$+++ 145 +++$+++ FALSE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Stevens, and may it please the Court: Apart from the roughly 2 percent of the annual lump sum appropriation that the Secretary withheld for performance of those core agency functions that the agency itself was required to perform, the Secretary allocated the entire remaining 98 percent of its lump sum appropriation among tribes. Now, the tribes have to point to some source of funding within that lump sum appropriation.
02-1472 +++$+++ 146 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, they just did, the 2 percent. So my question to you is the same. I asked, let's imagine this had nothing to do with tribes, nothing to do with it. It was a typical, ordinary Government contract for pencils. All right? Or for soda water. Now, and everything were the same. Under those circumstances, just an ordinary contract -- and they point to that 2 percent and they say that is legally speaking -- we didn't expect you to pay it. We just won a lawsuit in the Court of Claims. But -- but we have -- we have a contract here. Okay? That's what we're just saying. The -- the subject to appropriation clause doesn't nix the contract because that 2 percent is available, legally speaking, time, purpose, and -- and amount. Okay? Classic. Now, what's the Government's view there?
02-1472 +++$+++ 147 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
02-1472 +++$+++ 148 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it available or not were this an ordinary contract?
02-1472 +++$+++ 149 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. With respect to the 2 percent that's reserved for inherent Federal functions, that's not available.
02-1472 +++$+++ 150 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm asking -- all right. Are -- is the Government's view then let's treat this just as an ordinary contract? Still it -- there was no money available.
02-1472 +++$+++ 151 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect to --
02-1472 +++$+++ 152 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Legally speaking under the time-purpose-amount test.
02-1472 +++$+++ 153 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Breyer, I'm drawing a distinction between the 2 percent that's reserved for core agency functions and --
02-1472 +++$+++ 154 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No.
02-1472 +++$+++ 155 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- it's been a background principle of Government contracting law that there are certain core agency functions that -- that the Government is required to perform for itself and that it can't contract out. So I think that informs the interpretation of the subject to availability clause.
02-1472 +++$+++ 156 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, I would like an answer to my question, yes or no. If this were an ordinary contract with a subject to appropriations clause, is -- would the Government be saying this is invalid because the appropriations were not there?
02-1472 +++$+++ 157 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you have to look at the particular context.
02-1472 +++$+++ 158 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There must be a yes or no answer to that.
02-1472 +++$+++ 159 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would be no if this statutory regime governed, Justice Breyer.
02-1472 +++$+++ 160 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. What it is is a contract for pencils. Can you not -- is it impossible --
02-1472 +++$+++ 161 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If -- if all --
02-1472 +++$+++ 162 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- to make -- you see what I'm driving --
02-1472 +++$+++ 163 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If -- if all that's at issue is a standard subject to availability clause in a contract and there were no reduction clause, as there is in this statute, and you're dealing with the standard procurement context, then there is a Court of Claims decision, the Blackhawk decision, that suggests, albeit in a footnote, that in that situation, there are funds available in the sense that they're legally unrestricted.
02-1472 +++$+++ 164 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Correct, and which are the funds that are -- that would be available here? Which are they?
02-1472 +++$+++ 165 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There aren't any funds that are available here in our view because --
02-1472 +++$+++ 166 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If this were under Blackhawk.
02-1472 +++$+++ 167 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under Blackhawk, it would be -- it would -- it would essentially affect the entire lump sum appropriation because there's no legal requirement that the lump sum appropriation be -- be directed in any particular manner. Now, there are some provisions in the --
02-1472 +++$+++ 168 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That includes the 2 percent that you keep referring to.
02-1472 +++$+++ 169 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that would include in the -- that would include the 2 percent. But there are provisions, I should note parenthetically, in the appropriations act that say specifically, for example, that not to exceed a certain amount is to be used for a particular function or at least a certain amount is to be used, for example, for contract health services. So you'd have to take into account --
02-1472 +++$+++ 170 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Then let me do this then.
02-1472 +++$+++ 171 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- those particular provisos.
02-1472 +++$+++ 172 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You say if this were a classic, ordinary contract, the money would have been available legally speaking. Nobody says practically speaking, and they could have brought their lawsuit. Now, tell me specifically, if you can -- and this may take you the whole time. You want to make whatever argument you want. What is it that's special about this contract that brings it out of ordinary contracting principles?
02-1472 +++$+++ 173 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, first and foremost, the text of the statute. If you look at page 15a of the appendix to -- to the tribes' briefs, this isn't your standard, garden variety subject to availability clause. You have to look at the particular context in which this statute --
02-1472 +++$+++ 174 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the language is the same.
02-1472 +++$+++ 175 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not, Justice O'Connor, with respect. It says, notwithstanding any other provision -- and I'm reading at the bottom of page 15a -- the provision of funds under this subchapter is subject to the availability of appropriations and -- and this is --
02-1472 +++$+++ 176 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That phrase is the same, subject to the availability of appropriations.
02-1472 +++$+++ 177 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That particular phrase resembles the one that Justice Breyer posited in his hypothetical.
02-1472 +++$+++ 178 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Exactly.
02-1472 +++$+++ 179 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the term available -- and I think this is critical. The term available is repeated in what's been referred to as the reduction clause, and I don't think one can understand what the term available means unless it considers the meaning of that term throughout that entire sentence.
02-1472 +++$+++ 180 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but the other -- the other side says you don't have to get to that because you could have paid the contract amounts here without reducing funds available for other tribes. It's simply that it would have squeezed you in your budget, your -- your headquarters operating budget for IHS. So they say, if I understand them, that the -- that the nonreduction clause doesn't save you here because you could have paid it without reducing things for other tribes.
02-1472 +++$+++ 181 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think that argument is incorrect. First of all, it's an incorrect interpretation of the terms of the reduction clause. But second of all, the notion that funds for inherent Federal functions, the 2 percent that the agency reserved to perform its core agency functions, were available for contracting is contrary to -- to the terms of the ISDA itself. And if you'll look at page 12a -- and I'm quoting from 450j-1(a)(1) -- what provision says is the amount of funds provided under the terms of self-determination contracts include the amount that the Secretary, quote, would have otherwise provided. And then later on down in the paragraph --
02-1472 +++$+++ 182 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't see that. Where?
02-1472 +++$+++ 183 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. It's --
02-1472 +++$+++ 184 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Not less. Right?
02-1472 +++$+++ 185 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Shall not -- shall be not less than the amount that the appropriate Secretary would have otherwise provided. And then further down in the paragraph in the last -- in the last clause, including support of administrative functions that are otherwise contractable. And what otherwise contractable denotes is that there are certain functions that are not otherwise contractable, namely those core, inherent Federal functions that the agency itself is required to provide. And so what 450j-1(a) implements is the background understanding that funds for core agency functions don't have to be turned over to the contracting tribes because the agency requires those funds in order to continue essentially to exist as a Federal agency.
02-1472 +++$+++ 186 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but I thought the submission of the petitioners' counsel was that some of these funds were used to monitor the contracts which are functions the tribes could have performed. So is there a factual disagreement here?
02-1472 +++$+++ 187 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so, Justice Kennedy. I think it's more of a characterization disagreement. There -- it's true that in a descriptive sense, one might refer to some of these funds as used for contract monitoring, but what 450j-1(a) says is that whatever you might call it, the funds that are used for core agency functions are outside the funds to be -- to be turned over.
02-1472 +++$+++ 188 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It doesn't say that. It doesn't say that. What it says is otherwise contractable. And they could certainly -- for a lay person like me in this, you'd think, well, we could have a provision that says $180,000 is hereby authorized to be spent only for the Secretary of Veterans Affairs or Secretary of Interior. Well, if it said that, then that's not otherwise contractable because there's a statutory limit.
02-1472 +++$+++ 189 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but --
02-1472 +++$+++ 190 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So otherwise contractable sounds like a -- a statutory question.
02-1472 +++$+++ 191 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it -- it's not talking about money that's otherwise contractable. It says, including supportive administrative functions that are otherwise contractable. It's talking about a limitation upon the contractability of functions --
02-1472 +++$+++ 192 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
02-1472 +++$+++ 193 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- not the use of funds.
02-1472 +++$+++ 194 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's talking about both because the -- the first part of subparagraph (1) is the amount of funds. It's relating to the amount of funds that are required to be transferred, and what it stands for is that funds for supportive administrative functions that are not otherwise contractable, i.e., those core agency functions that the agency is required to perform itself, those funds aren't required to be turned over to contracting tribes. And that just reflects the common sense principle that the agency has to continue to exist to perform some core functions.
02-1472 +++$+++ 195 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But how do you -- how do you square that with the -- on page 14a -- reductions and, as Mr. Miller read to us, shall not be reduced to make funding available for contract managing -- monitoring or administration by the Secretary, shall not be reduced by the Secretary to pay for Federal functions, including but not limited to, and then a string of what I assume falls under the heading Federal functions.
02-1472 +++$+++ 196 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, the way we square that under the statute is that the leading -- the initial sentence in subsection (b) says the amount of funds required by subsection (a) of this section. And our view of the statute is that funds for inherent Federal functions were never required to be transferred under subsection (a) to begin with. And so what (b) deals with is the funds that are left over after the funds for inherent Federal functions are taken off the top.
02-1472 +++$+++ 197 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So are these noninherent Federal functions shall not be reduced to pay for Federal functions? So there's inherent Federal functions and noninherent?
02-1472 +++$+++ 198 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, absolutely there are. The Federal functions is the broader set of -- it could essentially encompass everything the Federal Government does. Inherent Federal functions refers to that core set of functions that the agency itself is required to perform. And the distinction between inherent Federal functions and Federal functions, although it might seem trivial as a semantic matter, is reflected in fact in the definitions in title V of the ISDA where it specifically defines inherent Federal functions as a subset of Federal functions.
02-1472 +++$+++ 199 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does it ever define them as noncontractable? I mean, I -- I -- your answer, I suppose, is well, what -- what do you think they're talking about, but does it ever expressly get to --
02-1472 +++$+++ 200 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it does.
02-1472 +++$+++ 201 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the point of contractability?
02-1472 +++$+++ 202 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does, Justice Scalia -- Justice Souter. Excuse me.
02-1472 +++$+++ 203 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, but apologize to him. (Laughter.)
02-1472 +++$+++ 204 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And we describe the -- the relevant provision in our brief, if you'll bear with me for just one second, on page 31. When Congress enacted the title IV self-governance provisions that relate to the BIA -- and this is at the beginning of the first partial paragraph that begins with of particular significance. There's a provision there, 25 U.S.C. 458cc(k). And the provision reads that nothing in this section is intended or shall be construed to expand or alter existing statutory authorities so as to authorize the Secretary to enter into any agreement with respect to functions that are inherently Federal. And I think what that signifies is that there are some functions that are not contractable and can't be turned over to the tribes.
02-1472 +++$+++ 205 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That -- that all may be true, of course. They're talking about don't contract out to the Indians something that should be done in Washington. But what has that got to do with the issue? We're talking, I thought, about -- about Government contracts. People who enter into Government contracts need certainty. They have to know whether that word, subject to appropriations, invalidates the contract or whether they have a valid contract. And a set of principles have come up that are used to decide that. And under that set of principles, money is available to pay for the contract if it's time, purpose, and amount. Okay? That's the principle. And --
02-1472 +++$+++ 206 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't think --
02-1472 +++$+++ 207 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and I don't see anything contrary to that.
02-1472 +++$+++ 208 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, one background principle -- and it's reflected, by the way, in the terms of the contracts themselves. One background principle is that funds for inherent Federal functions are not required to be transferred to tribes. And the contracts --
02-1472 +++$+++ 209 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, Mr. Srinivasan, do you say that the contracts that were entered into by IHS and the tribes did somehow contract away Federal -- inherent Federal functions?
02-1472 +++$+++ 210 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. They specifically --
02-1472 +++$+++ 211 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They didn't violate that section, did they? The contracts that we're talking about.
02-1472 +++$+++ 212 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They specifically did not transfer --
02-1472 +++$+++ 213 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. So we're not dealing with that. We're dealing with contracts that didn't violate that section. And you're just saying that some of the lump sum appropriation was diverted by the Government to pay for some kind of core Federal function, not that the contracts violated that provision.
02-1472 +++$+++ 214 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. The -- that's correct, Justice O'Connor. What I'm responding to is the suggestion that funds that were allocated by the Secretary to pay for inherent Federal functions were required to be diverted to pay for the indirect costs --
02-1472 +++$+++ 215 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're not saying -- you're addressing not what was contracted out, but what funds are available.
02-1472 +++$+++ 216 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
02-1472 +++$+++ 217 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's where your argument is going.
02-1472 +++$+++ 218 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. It relates to the funds that are available. And the tribes' position --
02-1472 +++$+++ 219 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you rely on the statement in (a) that the -- the only funds that are available are funds that include funds to -- to pay for supportive administrative functions that are otherwise contractable.
02-1472 +++$+++ 220 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. Not funds --
02-1472 +++$+++ 221 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And not funds that are used to pay for administrative functions that are not contractable.
02-1472 +++$+++ 222 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. We think that funds for inherent Federal functions were taken off -- off the --
02-1472 +++$+++ 223 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can I --
02-1472 +++$+++ 224 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You said that --
02-1472 +++$+++ 225 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can I ask you sort of a basic question that I'm having trouble following? As I understand, you're saying 98 percent of the appropriation have been allocated to programs, projects, activities, and so forth that can't be reduced. Now, is there anything in the statute that would have prevented the Secretary from allocating only 96 percent of the budget to those funds?
02-1472 +++$+++ 226 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there is, Justice Stevens, in the following sense. It's not at all the case that the Secretary had unfettered discretion in composing the allocation scheme in any fiscal year.
02-1472 +++$+++ 227 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But his budget that he actually worked out with the 98 percent was not mandated by the statute, as I understand.
02-1472 +++$+++ 228 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In -- in part it was mandated by the statute.
02-1472 +++$+++ 229 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In part but not in whole.
02-1472 +++$+++ 230 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Perhaps not in whole --
02-1472 +++$+++ 231 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's the point.
02-1472 +++$+++ 232 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but at least in significant part. And let me -- but I think this is significant, and if I can just walk the Court through the process by which the budget is developed and any appropriation ultimately is allocated. The Secretary has always, both before the ISDA and after the ISDA, taken the current year's allocation across programs as a given, as a baseline from which the next year's allocation will be built. And that's reflected in the terms of the statute on pages 14a to 15a of the appendix to the blue brief. There's a provision, 450j-1(b)(2), that says that the amount that's transferred to contractors shall not be reduced by the Secretary in subsequent years except pursuant to certain limited criteria and one of which, the principal one of which, is the reduction in appropriations. But we're not dealing with that in the relevant fiscal years. There was always an increase. And so the Secretary, pursuant to the statute, kept the funding for across programs at least at the level that it was at the previous fiscal year. Now, in addition to that, the Secretary builds two -- two considerations on top. The first is mandatory across-the-board increases for things such as salary COLA's and inflationary adjustments. And that's a standard feature of budgeting, and it's reflected again in the terms of the statute. And that -- I'd point the Court to page 9 of the Government's brief, the gray brief, where we cite a provision, 25 U.S.C. 1680a.
02-1472 +++$+++ 233 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is the -- is the nub of what you're trying to tell me is that the 98 percent was, in fact, mandated by a statute?
02-1472 +++$+++ 234 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was -- I -- I think in principal part it was mandated by the -- by --
02-1472 +++$+++ 235 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Principal part, but --
02-1472 +++$+++ 236 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, let --
02-1472 +++$+++ 237 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does that mean that there was not enough?
02-1472 +++$+++ 238 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At least as far --
02-1472 +++$+++ 239 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They could have made it 97 percent --
02-1472 +++$+++ 240 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- insofar as what I've said with respect --
02-1472 +++$+++ 241 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and had enough money --
02-1472 +++$+++ 242 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sorry.
02-1472 +++$+++ 243 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- to pay these contract obligations.
02-1472 +++$+++ 244 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Stevens.
02-1472 +++$+++ 245 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ See, the thing that troubles me is it seems to me your reading of the statute makes the contractual problem -- provision illusory because they can always allocate funds to all these other projects and say, well, we've already used up the money.
02-1472 +++$+++ 246 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't think that they have discretion to do that. And that's what I'm trying to explain. At least with respect to the existing baseline and a mandatory across-the-board increases, it's mandated by the statute that the -- that the Secretary conduct his budgeting allocation process in the way that he's done. With respect to the mandatory across-the-board increases, on page 9 of the Government's brief, 25 U.S.C. 1680a, a provision that relates specifically to the administration of the Self-Determination Act, it requires the Secretary to provide funds to contracting tribes for, quote, cost-of-living increases, closed quote, and, quote, other expenses relating to the provision of health services, closed quote, on the, quote, same basis as such funds are provided to programs and services operated directly. In other words, with respect to mandatory across-the-board increases, the Secretary has to allocate those proportionately amongst contracting tribes and non-contracting tribes. And that leaves the additional set of an increase from one year to the next year that deals with specific targeted items, and principally that would include, for example, staffing of new facilities that come on board during the course of a particular fiscal year. And with respect to those specific targeted items, the critical point is that the contracting tribes often benefit from the addition of those and from the enforcement by the Secretary of those sorts of earmarks. For example, in this particular case, the -- one of the facilities that's at issue is the Stillwell clinic in Oklahoma. That was a new facility that came on board in the early 1990s and for which the -- for which the Cherokee Nation assumed administration of it through a self-determination agreement. Now, the staffing for that facility was specifically earmarked in the Secretary's budget submissions and in -- in Congress' appropriation committee reports. And it, of course, is in the Cherokee Nation's interest to ensure that those earmarks are honored.
02-1472 +++$+++ 247 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you telling me that the committee reports are -- are binding law?
02-1472 +++$+++ 248 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They're not binding law, Justice Stevens. We fully recognize that. But at the same time, I don't think that what Congress intended to do was to require the Secretary to completely ignore the committee reports.
02-1472 +++$+++ 249 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. But you got a conflict apparently between the committee reports and what seems to be pretty clear law, which says we're going to treat these contracts as contracts, not as intergovernmental agreements. And in -- in that conflict, I don't see why contracting principles don't trump the committee reports.
02-1472 +++$+++ 250 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not just the committee reports, Justice Souter. It's the reduction clause. The reduction clause is a part of the statute and no one has ever suggested the reduction clause doesn't inform the proper interpretation of the contract.
02-1472 +++$+++ 251 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and their -- their argument is that you can pay the contract amount without robbing other tribes of the amounts that the -- that the nonreduction clause refers to. They are saying -- I think they're saying, look, you, the governmental bureaucracy, get squeezed. Yes. And if so, the contract comes first and you have to live with the squeeze and go back to Congress and say, we're doing what you told us and we're getting squeezed out of existence. I think that's what they're saying.
02-1472 +++$+++ 252 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is what they're saying, Justice Souter, but with respect to, I think it's incorrect. The Government bureaucracy consists of two separate types of bureaucracy. There's that core bureaucracy that is the inherent Federal functions. And one of their arguments is that the Secretary was required to divest himself of the funds that were necessary to perform those functions.
02-1472 +++$+++ 253 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, he's not. But if -- if -- where I'm really coming from, to be honest -- and I'd like -- you might as well reply to what I'm actually -- is why I'm asking these slightly hostile questions. (Laughter.)
02-1472 +++$+++ 254 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I read here -- look, the question really is was this money like the bureaucracy money. Is it legally speaking an appropriation available, not practically speaking but legally? And here it seems to me, in looking through this somewhat quickly, that you say no, but the Board of Contract Appeals say yes. And so I think in my mind, you know, one group of people who really know about this is the Board of Contract Appeals. So if they're saying that money from a contract point -- a point of normal contract law is legally available, I promise you I'm predisposed to think they're right. So I might as well expose that to you so you can tell me now why I'm wrong or they're wrong or whatever.
02-1472 +++$+++ 255 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because, Justice Breyer, I think the core of it is that even if you think that they're right, that these funds are legally available, that's not enough under the ISDA because the ISDA specifically reserves to the Secretary the discretion that he not be required to reduce funding for programs, projects, or activities serving a tribe in order to make funds available to another tribe under this subchapter.
02-1472 +++$+++ 256 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, there is -- is -- the kind -- the money that's available to one tribe can't be taken for the other. But I thought the Board of Contract Appeals was saying taking that into account, there's still enough money left over. Am I wrong about that? I thought you should take money from one tribe to give it to another. What did they think?
02-1472 +++$+++ 257 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. They thought -- the -- the board -- the Federal Circuit at least, which echoed the Board of Contract Appeals, thought --
02-1472 +++$+++ 258 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I'm thinking the Board of Contract Appeals and the Federal Circuit.
02-1472 +++$+++ 259 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think the Board of -- of Contract Appeals really wrestled directly with where the funds were coming from. They just thought that legal availability would be sufficient. Now, what the Federal Circuit said was that funds for inherent Federal functions are available. And we think that's wrong for the reasons I've said. I don't think those funds ever came into the group of funds that were subject to be transferred to begin with. But even if you thought that they did, I think it's clear that funds for inherent Federal functions are funds for programs, projects, or activities serving a tribe in the sense that one example of a core Federal function --
02-1472 +++$+++ 260 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but if that's true, then everything -- then every penny in the -- in the IHS bureaucracy qualifies. I mean, that swallows the -- that swallows the entire budget.
02-1472 +++$+++ 261 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, let's -- Justice Souter, if I -- if I could, let's look at the particular sources --
02-1472 +++$+++ 262 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. But I mean, just conceptually isn't that -- isn't that the -- the implication of what you're saying?
02-1472 +++$+++ 263 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You -- you can't limit it to inherent Government functions. Both the inherent and the noninherent Government functions would fall within this provision --
02-1472 +++$+++ 264 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
02-1472 +++$+++ 265 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- if you read it as broadly as you've just read it.
02-1472 +++$+++ 266 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I guess the way I'd like to make the point is to say that the sources of funds that they point to, which include inherent Federal functions and the -- the noninherent Federal function bureaucracy that supports the administration of programs that serve tribes that are directly served by the Federal Government, those two are in fact programs, projects, or activities serving a tribe. With respect to the administrative support --
02-1472 +++$+++ 267 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On -- on that point -- on that point, in the Federal Circuit Judge Dyke expressed considerable displeasure with the Government because he said three times I said, tell me what existing programs with other tribes would have been reduced if these contract support costs are paid in full. And he said, I asked them again and again and again, and they were unresponsive. So since the Government declined to tell the court what programs -- existing programs with other tribes would have been reduced, mustn't we assume, as I think the Federal Circuit did, that the proof is unavailable and no existing program with other tribes would have been diminished?
02-1472 +++$+++ 268 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't -- I don't think so, Justice Ginsburg. I mean, one straightforward reason why you don't have to take that assumption is that it's not only the Federal Circuit case that's before the Court, it's also the Tenth Circuit case. And there's -- there are declarations in the Tenth Circuit case that specifically assert that diverting funding for -- to pay for the contract support costs of these tribes would have required reducing funds for programs, projects, or activities serving a tribe.
02-1472 +++$+++ 269 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, what does that mean?
02-1472 +++$+++ 270 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So --
02-1472 +++$+++ 271 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, one thing is existing contracts, things that are already ongoing, and then another thing is, well, we think that there's a new program that could be good for some tribe. So we're going to put that new program in and say that that steps in front of these contract support costs. Are we talking just about existing programs that -- that the Government has made a commitment to, or are we saying the Government is at liberty to benefit tribes? And so what if the contract support costs are, as a result, diminished? We're still doing good for tribes.
02-1472 +++$+++ 272 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We're talking about both existing programs and new programs, and with respect to new programs, there's -- it's every bit as likely that those new programs would benefit contracting tribes as noncontracting tribes. And again, one of the new facilities --
02-1472 +++$+++ 273 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's strange to talk of reducing -- is -- is not required to reduce funding for a new program. I mean, for a new program, there isn't any funding. How can you reduce the funding for a new program?
02-1472 +++$+++ 274 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because --
02-1472 +++$+++ 275 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That provision makes sense with regard to existing programs, but it doesn't make any sense with regard to proposed programs.
02-1472 +++$+++ 276 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think that reduce necessarily takes the existing year's appropriation as the baseline. We think that what it takes as the baseline is the current year's appropriation allocation which takes into account increases. And one way to see that is 25 U.S.C. 1680a, which is the provision that I cited earlier that requires the Secretary to apportion mandatory across-the-board increases on a proportionate basis as between contracted programs and noncontracted programs. And what that provision means is that the reduction takes into account those mandatory across-the-board increases from year to year. So in some sense, I think reduce does mean this year's allocation of appropriations as opposed to last year's spending amount.
02-1472 +++$+++ 277 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Srinivasan, you -- you alluded a moment ago in -- in answering Justice Ginsburg, I guess, to declarations on file on the Tenth Circuit case that -- that specifically said we would have to reduce funds available for other programs. Did those declarations get specific in the way that her original question was -- was asking about? Did it say -- did the declarations say we will have to reduce the X program for the Navajo Tribe and the Y program for the Apache Tribe and so on, or was it -- did the declarations simply say, as a general matter, we would have to reduce allocations for other tribes?
02-1472 +++$+++ 278 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they -- they make the point as a general matter, and they also give an example. I think the one example that they give -- and maybe there are more -- is -- is a diabetes program. But I think it's more the general principle --
02-1472 +++$+++ 279 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was that a new program or an existing program?
02-1472 +++$+++ 280 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's an -- the -- the particular example is an existing program. But I think it's more --
02-1472 +++$+++ 281 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems to me you can interpret those comments as saying we don't -- they did not leave enough room in the budget for the programs we now want to support and our prior contractual obligations.
02-1472 +++$+++ 282 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You're -- you're speaking with particular respect to the new programs, Justice Stevens?
02-1472 +++$+++ 283 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. It seems to me that you can interpret what you're saying as the -- as the -- the Government adopting a budget in which there's not enough room for all the programs it wants to support in the current year and continuing to honor the obligations under the existing contracts.
02-1472 +++$+++ 284 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think that even with respect to the current year there wouldn't be enough money to pay for the complete shortfall in contract support costs. If you look at the figures, the shortfall in contract support costs, for example, in 1997 cumulatively was $82 million, and that's -- that is more than the amount of the appropriation increase from FY 1996 to FY 1997. It's more than the amount that was reserved by the Government for inherent Federal functions. And so even if you accepted that interpretation, it wouldn't be sufficient to fully fund the contract support costs.
02-1472 +++$+++ 285 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there some way to avoid these problems now? Has anything changed?
02-1472 +++$+++ 286 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice O'Connor, Congress changed things by imposing a statutory cap, explicit statutory cap, on contract support cost funding beginning with 1998. It had done so since 1994 for the BIA and it did so beginning in 1998 with respect to IHS.
02-1472 +++$+++ 287 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why was there that difference between the BIA that got the statutory caps earlier and not till, was it, 4 years later for the IHS?
02-1472 +++$+++ 288 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the difference lies in the extent to which there was perceived to be a shortfall. My understanding is that there was a shortfall already in BIA programs whereas the shortfall didn't really become evident with respect to the IHS until 1994 and beyond. And that's why you might see the discrepancy between the two. But Congress also acted, by the way, in 1998 in the 1999 Appropriations Act in enacting section 314 of the 1999 Appropriations Act. And I think, if nothing else, section 314 at list -- at least expresses the view of a subsequent Congress that the Secretary's allocation scheme from 1994 to 1997 was legitimate and was fully within his discretion under the ISDA. And under this Court's decisions in Red Lion and its progeny, that determination by a subsequent Congress is at least entitled to great weight in determining what the Secretary appropriately exercised discretion in 1994 through 1997. So even if you thought that there was some doubt on whether the Secretary had carried out his functions consistently with the ISDA, I think Congress' saying later in the 1999 Appropriation Act that its view was that Secretary had done so legitimately should push the Court towards ruling in our favor on the initial interpretation of the ISDA. I want to address really quickly, if I could, the notion that the funds for administrative support for programs that are administered directly by the Federal Government are available. And that would have significant consequences because one of the policies underlying the act is not only to protect the interests of tribes that are currently entered into self-determination contracts, but it's to protect the amounts that are available to tribes that might some day choose to enter into self-determination contracts. And if, under the tribes' view, the Secretary was required to divert the entire amount of the increase in any particular year to contracting tribes or to -- to divert the entire amount of administrative support for -- for noncontracted programs to contracting tribes, the effect of that would be to freeze in place the amounts that were available for potentially contracting tribes in future years. Thank you.
02-1472 +++$+++ 289 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Miller, you have about 4 minutes left.
02-1472 +++$+++ 291 +++$+++ FALSE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, thank you. First, I'd like to address the availability of appropriations clause briefly. That is a term of art with a well-established meaning. This Court in Morissette said that if -- unless there's a contrary direction from Congress that the term of art should not be given its well-established meaning, it controls. And that is the meaning, purpose, time, and amount, that the appropriation is available for the purpose during the time and in the amounts necessary to fully --
02-1472 +++$+++ 292 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think they disagree with you about the purpose in respect to the core Government function.
02-1472 +++$+++ 293 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Secondly, with regard to the core governmental functions, in Blackhawk, the contractor had a settlement with the Veterans Administration. The Veterans Administration had to reprogram. From where? We don't know, but the Veterans Administration had to reprogram and wanted to get approval from the Congress for that reprogramming action. Congress then stepped in but after the payment was due and forbade any reprogramming, and the Court then held when the payment was due, money was legally available and it doesn't matter where it comes from. There is no protection for inherent Federal functions. It may have come from some other hospital budget. It may have come from some other activity of the Veterans Administration. No doubt everything the VA does is important, but it doesn't mean it didn't have a legal obligation to pay the contract. There is no rule that has an IFF exception to the governmental duty to pay, and if there was, it would upset Government contract law deeply as the amicus brief from the National Chamber explains. Secondly, when funds are not available, we know what happens. This Court's decision, Justice Brandeis' decision for the Court, in Sutton explains what happens when funds are not available. There was a line item appropriation of $20,000 for a construction project. We understand that the contractor was on notice. Everything is square. Here, the entire lump sum appropriation was available, and I'd like to give the Court a sense of where the money could have come from, not that the Government had to do it. Just as in Blackhawk, if they chose not to reprogram, that's their right. But then there's a remedy. Where could the money have come from? In 1994, there was slightly under $2 million in a shortfall, just to the Cherokee contractor. No other contractor was apparently shorted. There was up to $98 million in leftover appropriations that year. There was 55 -- $88 million in an increase, up to $88 million in increase every year from $36 million to $88 million. There was $25 million in inherent Federal functions. They couldn't have shaved that by 10 percent to pay this contractor? Not that they had to. They could have taken some of it from there, some of it from the leftover, some of it from the increase, some of it from the offices at headquarters and area offices. That was their decision. But the contractor didn't take the risk that the Secretary would say, at the end of the day, I've decided to allocate 100 percent of my money this way, and by golly, there's nothing left for you. No contractor takes that risk in dealing with the Government, and surely, a tribal contractor with a mandatory contract set forth in the statute doesn't take that risk either. There is no limitation to the Secretary's theory in this case. The Secretary's theory means that we come, the contractors come, after the allocation of the Secretary. Well, the Secretary could, in a reduction year, decide to allocate the entire reduction to the contracts and enhance even his own Federal bureaucracy and programs serving other tribes and say, now I've made my decision and I've made my judgment. I don't have enough money to pay you. There's no limit here on contract support costs. It could be the secretarial amount. They could zero out these contracts and say it's practical availability. And we've decided there isn't enough money to deal with all of the health care needs in the country, so we're going to deal with the ones we operate and you come last. Now, that's not what the -- that's not what the statute permits. That sort of interpretation would lead to an absurdity. With regard to the Tenth Circuit decision, Justice, you asked a question about the declarations in the Tenth Circuit. There was a declaration in the Tenth Circuit, but all it had was a conclusory statement, to have reprogrammed anything would have caused reductions in programs serving other tribes. Now, that is not sufficient proof to withstand summary judgment, and it's certainly not sufficient proof to establish summary judgment. So for all these reasons, we believe the Tenth Circuit decision should be reversed and the Federal Circuit decision affirmed. Unless the Court has more questions.
02-1472 +++$+++ 294 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Miller.
02-1472 +++$+++ 295 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens.
02-1672 +++$+++ 299 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument in Jackson against the Birmingham Board of Education. Mr. Dellinger.
02-1672 +++$+++ 301 +++$+++ FALSE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: Under the decision below, title IX stands alone as the only major civil rights statute that would permit retaliation against those who complain that the law is being violated. There are at least a half a dozen anti-discrimination laws that do not contain a separate retaliation provision, and every one of them has been found to prohibit retaliation as one kind of discrimination. There's a reason for that. Anti-discrimination laws simply can't be effective if threats of retaliation are allowed to chill those who would seek to bring their institutions into compliance.
02-1672 +++$+++ 302 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Of course, the question is whether -- that -- that may be true, but there would be an administrative remedy. The question here is a private cause of action for damages.
02-1672 +++$+++ 303 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is true, Justice Kennedy.
02-1672 +++$+++ 304 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even -- even assuming the -- the validity of your premise, you still have another step.
02-1672 +++$+++ 305 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I understand that other step, and I think that was largely resolved in Cannon v. the City of Chicago, a decision which this Court upheld a right of action to enforce title IX, even though there was also administrative remedies available and which was validated by Congress, as this Court -- every member of this Court recognized in -- in Sandoval.
02-1672 +++$+++ 306 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought -- I thought that Cannon -- we've -- we've allowed Cannon to stay on the books, but I thought we have sworn off the kind of creation of -- of implied remedies that Cannon exemplifies.
02-1672 +++$+++ 307 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this case, there is no doubt that the two established principles together that are settled support this cause of action. The first is that there is a cause of action to enforce title IX. That's Cannon through Congress, through Sandoval, through -- your opinion in Sandoval acknowledges that Cannon is solid law and, the second point, that the statute itself is violated. Title IX is violated by retaliatory action against Coach Jackson. He's -- and -- and this is an important part of title IX because, particularly here, people like Coach Jackson need to come forward because students are often minors. They're not in the best position to know the budgets. It is people like Coach Jackson who make it work, and indeed, I think what is recognized about the -- about the cause of action for retaliation is that it is very important to enable people to bring their institutions into compliance without resorting to litigation.
02-1672 +++$+++ 308 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's very -- it's very useful, I'm sure, but it -- it could be very disruptive also, I am sure. If I were -- if I were a coach, one of the first things -- especially a coach of a women's team in high school, one of the first things I would do would be to complain about not -- not getting enough facilities. This would make it a lot more difficult to fire me whether -- whether I'm a lousy coach or not. You -- you would have to think twice before you fire me because I would have a retaliation claim.
02-1672 +++$+++ 309 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, the burden, of course, is on the plaintiff to demonstrate causation. And you should take great comfort from the fact, the Court can take great comfort from the fact that retaliation has been established as a violation of all of the major civil rights statutes, going back to 30 years to title VI --
02-1672 +++$+++ 310 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Some of them specifically provide for retaliation, don't they?
02-1672 +++$+++ 311 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
02-1672 +++$+++ 312 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why do they do that if, as you assert, the mere word discrimination embraces it?
02-1672 +++$+++ 313 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Congress has taken a different approach. In some cases, there would be a textual problem. Title VII, for example, speaks of discrimination based on such individual's race or national origin. Title -- and -- and therefore, it might need a specific retaliation provision. Title IX speaks upon -- about discrimination on the basis of sex. And here I think to -- to allay your concern about the coach, we have had -- title IX's retaliation provision has been the established law. It was the law at the time Congress -- it was understood, at the time Congress enacted title IX, that the identical wording of title VI had been construed by the administrative agency to include a cause of action for retaliation. Congress enacted title IX against the background of the Sullivan decision, which had recognized that discrimination can include retaliation. So that it comes as no surprise that every court of appeals that has addressed this issue has found that there's retaliation under title IX. In over 30 years, there -- at most we can find 140 reported cases in the Federal system where there is a claim for retaliation under title IX, and under title IX and all of the other discrimination provisions, courts have found it perfectly satisfactory to work out the causation requirements and -- in -- in dealing with retaliation cases. Now, here, what the respondent did is they discharged the coach who was seeking equal treatment for girls. When it singled Coach Jackson out for adverse treatment, it was discriminating, and when it did so, because he was seeking equal treatment for girls, it was discriminating on the basis of sex.
02-1672 +++$+++ 314 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think that it -- it is a reasonable description of what happened -- he was fired for complaining about his girls' team not getting enough facilities -- that he was, on the basis of sex, excluded from participation in, denied benefits of, or subjected to discrimination under an education program?
02-1672 +++$+++ 315 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
02-1672 +++$+++ 316 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think that -- that remotely describes what happened to this coach?
02-1672 +++$+++ 317 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. First of all, the -- the court of appeals correctly says -- in the petition appendix at 3a, the court of appeals says we assume for the purposes of this appeal that the board retaliated against Jackson for complaining about perceived title IX violations. But for the discrimination on the basis of sex, he would not have complained, and he not -- had he not made a complaint about sex discrimination, he wouldn't have lost his position. He is denied the benefit of coaching in the program. He's denied the ability to participate in this federally funded program as a coach, and he is discriminated against by being singled out for retaliation. And this is not a case in which -- that has concern -- I mean, Justice Kennedy raised the question about this being a funding case, and I understand the special sensitivity that the Court has about rules that are based upon spending requirements where you want to be sure that States understand what they're agreeing to when they accept the Federal funds. This is not a case in which it could not have been anticipated when those funds were accepted. At that time, at the time these funds were accepted, which would have been about 1999 or 2000, title IX's ban on sex discrimination was itself, of course, universally known. Retaliation was understood to be part and parcel of that. We had had 30 years where both the Department of Education and --
02-1672 +++$+++ 318 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- but that's again the question of the substantive scope of the provision, and that's different from whether there was a congressional intent to create a private cause of action for this sort of violation. And was it -- Virginia Bankshares and so forth tells us that this is not the heyday of prior cause of actions anymore. You have to show that there's a congressional intent in the Spending Clause to create a private cause of action for damages.
02-1672 +++$+++ 319 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the Court --
02-1672 +++$+++ 320 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that's -- that's quite separate from --
02-1672 +++$+++ 321 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. I -- I --
02-1672 +++$+++ 322 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- from this -- from the question of substantive liability.
02-1672 +++$+++ 323 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I understand that. Here, first of all, when Congress acted, unlike the earlier time when it passed title VI, when Congress passed title IX, it was a background in the law from Sullivan v. Little Hunting Park that -- that retaliation was considered a part of discrimination. The title VI regulations were themselves well known based on identical language, virtually verbatim language. It provided for retaliation. And moreover, this Court as recently as the Davis case, Franklin and Davis, and in the North Haven case has found that employment discrimination, sexual harassment by teachers and peer-on-peer sexual harassment all come within title IX and have, therefore, agreed that Cannon v. the City of -- v. the University of Chicago creates that cause of action. Now, this case is actually a lot easier than Davis, even taking into account the concerns that -- that you and other Justices expressed there, because this is not a case where liability is being imposed, you know, for the acts of third parties like students over whom you may have limited control. This is deliberately undertaken actions by the responsible officials acting intentionally. It's not a novel concept the way one could argue that peer-on-peer sexual harassment was as a part of discrimination. But it's been accepted for more than 30 years by the responsible Federal agency.
02-1672 +++$+++ 324 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but it's separate enough from discrimination that in other statutes, although Congress does create a cause of action for discrimination, it goes out of its way to create a separate cause of action for retaliation. It's sufficiently separate, and if it is that sufficiently separate, it doesn't seem to me that you could clearly say that -- that when the State signed on to receiving Federal funds under title IX, they should have known that this door to litigation was being opened to them. Yes, litigation for -- for discrimination against -- against female athletes, but not -- not discrimination suits alleging retaliation. That's a whole, new area.
02-1672 +++$+++ 325 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, with -- with all due respect, I don't think there's any way, when the district accepted these funds, that they could have reasonably relied on the assumption that they would be free to retaliate against people who tried to comply --
02-1672 +++$+++ 326 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but there was -- there was -- let's go back to this for just a moment -- an administrative remedy available for retaliation expressly under the regs?
02-1672 +++$+++ 327 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
02-1672 +++$+++ 328 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And did this petitioner seek an administrative remedy at all?
02-1672 +++$+++ 329 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He did not seek an administrative remedy. He went through the school system itself at every level. He went through five different levels, following the chain of command.
02-1672 +++$+++ 330 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What would the administrative remedy have allowed here --
02-1672 +++$+++ 331 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
02-1672 +++$+++ 332 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- had it been sought?
02-1672 +++$+++ 333 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Here, as in Franklin, as in Davis, as in Cannon v. the University of Chicago, as in every one of this Court's title IX cases, indeed, as in all of its title VI cases involving Federal funds with race, you can call this to attention to the office of civil rights of the relevant agency and they can begin an inquiry. Ultimately they have the authority of the draconian sanction of cutting off the funds to the --
02-1672 +++$+++ 334 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do they have any other sanction? Because the notion of an administrative remedy ordinarily would be a remedy for the individual who's complaining. But as I understand it, this administrative process, this detailed administrative process, leads only to one sanction, the one you have described as draconian.
02-1672 +++$+++ 335 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
02-1672 +++$+++ 336 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that's it. It would not have permitted a restoration of the job to the --
02-1672 +++$+++ 337 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
02-1672 +++$+++ 338 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- petitioner.
02-1672 +++$+++ 339 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is not part of the -- the administrative process is only about institutional funding, which is why the Court has consistently upheld the right to bring these actions for what are violations of the statute itself.
02-1672 +++$+++ 340 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if we don't accept -- let's assume, just for the sake of argument, that -- that we're having trouble accepting the -- the analysis that it is a violation of the statute in the statute's own terms. You then made the argument that, in fact, you should recognize retaliation as a claim because in the context of -- of school students and so on, if you don't allow retaliation, the teachers are not going to blow the whistle, and if the teachers blow the whistle, the statute is going to be a dead letter.
02-1672 +++$+++ 341 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is --
02-1672 +++$+++ 342 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so the -- the argument is you -- you should recognize this as a necessity. That, it seems to me, still goes back to Justice O'Connor's question. Why do we have to recognize a private cause of action as opposed to the government allowing an administrative remedy? And I thought you were leading up to saying the administrative remedy simply isn't effective because it's so draconian that, in fact, they don't impose it, or for some other reason. So my question is, is there an argument to say that the administrative remedy simply is not good enough to preclude -- to -- to deter retaliation and that's why you've got to have a private cause of action?
02-1672 +++$+++ 343 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that is absolutely right.
02-1672 +++$+++ 344 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's -- what are the facts? What's the empirical evidence for that?
02-1672 +++$+++ 345 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
02-1672 +++$+++ 346 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you know if administrative sanctions have been imposed under title IX against schools?
02-1672 +++$+++ 347 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'm sure there have been some instances in which there have been administrative sanctions under title IX. And I don't -- I do not have figures on those, Justice O'Connor. But let me --
02-1672 +++$+++ 348 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Have funds --
02-1672 +++$+++ 349 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- let me suggest --
02-1672 +++$+++ 350 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- have funds -- Mr. Dellinger, have funds ever been withdrawn from any school because of a violation of --
02-1672 +++$+++ 351 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not to my knowledge.
02-1672 +++$+++ 352 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- title IX?
02-1672 +++$+++ 353 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I think --
02-1672 +++$+++ 354 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That could be because --
02-1672 +++$+++ 355 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I actually have --
02-1672 +++$+++ 356 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the sanction is so draconian that nobody in his right mind is not going to rehire the coach. Of course, they're going to rehire. I -- I find it hard to believe why a draconian sanction is ineffective.
02-1672 +++$+++ 357 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if it's never -- I -- I --
02-1672 +++$+++ 358 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It seems to me it's -- it's overwhelmingly effective. You tell the school you either rehire the coach or we're cutting off your money.
02-1672 +++$+++ 359 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice --
02-1672 +++$+++ 360 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is it hard to decide what they're going to do?
02-1672 +++$+++ 361 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do have an answer, first, for Justice Ginsburg's question from Ms. Greensberger. The sanction has never been imposed under title IX of cutting off funds. And it --
02-1672 +++$+++ 362 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I can't imagine anyone who would want such a sanction. Which doesn't help --
02-1672 +++$+++ 363 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is certainly not what --
02-1672 +++$+++ 364 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the girls on the team.
02-1672 +++$+++ 365 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Coach -- Coach Jackson would have sought, and -- and because that process is not one that's responsive to the individual case -- if you're down in Birmingham, Alabama, the idea that there is some office that has control over Federal funds that's never imposed a sanction, the fact of the matter is -- and it's the reason --
02-1672 +++$+++ 366 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you're saying the coach cares more about it than the Government does?
02-1672 +++$+++ 367 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That may well be the case, absolutely. And Coach Jackson --
02-1672 +++$+++ 368 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if -- if the Government is charged with -- with just spending the funds and doesn't think that this is worth its time, why should there be a private cause of action --
02-1672 +++$+++ 369 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because --
02-1672 +++$+++ 370 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- when -- when a private cause of action is harder for us to imply than it -- than it is to an administrative remedy?
02-1672 +++$+++ 371 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because in this case people like Coach Jackson -- it's hard enough for Coach Jackson to come forward. If he's not able to -- if he's not protected and able to come forward, if retaliation is possible, then you can't expect the -- the teenagers themselves to carry this burden. And in fact, it's the reason this Court recognizes a private cause of action in Franklin and in Davis and in Cannon itself, that you're not going to protect the whistle blower and they're not going to be able to come forward. And it's not just whistle blowers, Justice Kennedy. It's people that want to make their institutions comply and when those efforts at compliance result in penalties against them. It has not led to an excessive amount of litigation, but it has been very effective in giving people comfort to know that they can't be retaliated against. And -- and I -- I understand the -- going to the necessity, but I do think I'm very comfortable with the statute because it is a form of discrimination on the basis of sex. It is part and parcel. The history of discrimination, on which title VI drew, was that firing people from their jobs is what you did when they complained about discrimination, when they tried to vote, when they tried to enroll their students in schools, and it is part and parcel of that discrimination. And it is discrimination against Coach Jackson for his actions on behalf of sex. Thank you.
02-1672 +++$+++ 372 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. --
02-1672 +++$+++ 373 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'll reserve the balance of my time.
02-1672 +++$+++ 374 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Gornstein, do you have any light to shed on the extent to which administrative sanctions have ever been imposed against schools and -- and the feasibility of going that route?
02-1672 +++$+++ 376 +++$+++ FALSE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Administrative sanction has never been imposed under title IX.
02-1672 +++$+++ 377 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They have been under title VI?
02-1672 +++$+++ 378 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There has been one case in which an administrative sanction was imposed under title VI, Justice Kennedy. It -- the agency does have some flexibility to attempt to get voluntary resolutions that are short of the sanction, the final sanction, but --
02-1672 +++$+++ 379 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you take the position that what occurred here can amount to a direct violation of the statute as discrimination?
02-1672 +++$+++ 380 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We do, Justice -- Justice O'Connor. I'm sorry. Retaliation against a person because that person has complained about sex discrimination under title IX is itself discrimination within the meaning of title IX. And that conclusion flows from four considerations, beginning with the Court's decision critically in Sullivan because in that case, the Court held that a person subjected to retaliation because he complained about racial discrimination against his lessee could sue under section 1982's prohibition, which only prohibits racial discrimination. Against the backdrop of that decision in Sullivan, Congress would have understood its prohibition against sex discrimination to afford comparable protection against retaliation. So a person who is subjected --
02-1672 +++$+++ 381 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why would Congress then in some statutes expressly cover retaliation and in others not? I mean, that's a little odd, isn't it?
02-1672 +++$+++ 382 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is, Justice O'Connor, but the explanation for that for -- in title VII, for example, is that the core prohibitions in title VII refer to discrimination based on such individual's race, sex, or national origin, and that such individual's language rules out the kind of retaliation claim we are talking about here.
02-1672 +++$+++ 383 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It rules out this one, but it doesn't rule out the main -- look it, this is a weird kind of retaliation claim. Usually the retaliation claim is the person who has been discriminated against complains about the discrimination, and for that complaint, the person who was discriminated against is demoted or not promoted, or whatever. That's -- that's the classic retaliation claim. And that classic claim is surely covered by -- on the basis of that person's sex. If --
02-1672 +++$+++ 384 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it's based on the fact that the -- that the person is complaining about sex discrimination and not on the sex of the complainer, it's exactly the same theory of discrimination that we have here, Justice Scalia. And that theory of discrimination was recognized in the Sullivan decision. Discrimination occurs when there is retaliation against a person because he's complaining about racial discrimination.
02-1672 +++$+++ 385 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What was the date of the Sullivan case?
02-1672 +++$+++ 386 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was 3 years before Congress enacted section -- I think it was '68 -- '69. I'm sorry. '69.
02-1672 +++$+++ 387 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ '69.
02-1672 +++$+++ 388 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was '69, Justice Scalia.
02-1672 +++$+++ 389 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And -- and you think that we take the same approach to implied causes of action today that we took in 1969?
02-1672 +++$+++ 390 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You do not, Justice Scalia, when you are starting afresh, but --
02-1672 +++$+++ 391 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And we certainly did not with a Spending Clause case.
02-1672 +++$+++ 392 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, Justice Kennedy. But to answer Justice Scalia's question, first, you operate in the legal context in which Congress was operating at the time, and Congress would have understood -- and this Court has twice relied on the Sullivan decision in interpreting title IX, once in deciding that there was a private right of action and once in deciding that the private right of action included a claim for damages.
02-1672 +++$+++ 393 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't know what case it is, but one of our cases, the argument was precisely made that the statute before us had been enacted by Congress before we had set our face against implied causes of action, and therefore, we should interpret that statute the way we used to in 1969, and we rejected that argument. We said that our new rule, as to when you find implied causes of action, will be applied to all statutes, whether they were enacted by a Congress that -- that thought we would go skipping along forever as we did in 1969 or -- or not. And -- and that's what you're asking us to do here.
02-1672 +++$+++ 394 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice --
02-1672 +++$+++ 395 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Just because Congress in -- in the -- at the time this statute was enacted believed in the existence of a Supreme Court that would readily find implied causes of action, we -- we have to do that for all these old statutes.
02-1672 +++$+++ 396 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Let -- let me talk about the cases that I think the principle that you're talking about emerges from. One is the Central Bank case, and what you were asked to do there was to add the words, aiders and abetters, to the statute. We're not asking you to add words to this statute. We're asking you to interpret the words that are there --
02-1672 +++$+++ 397 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But what about Virginia --
02-1672 +++$+++ 398 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in light of the relevant context.
02-1672 +++$+++ 399 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about Virginia Bankshares?
02-1672 +++$+++ 400 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm -- I'm not sure about Virginia Bankshares, but I don't think it -- it states a principle. The other case that I was thinking about, Justice Kennedy, is the -- is the Sandoval case. And again, there somebody was asking you to afford a private right of action for something that the statute did not itself prohibit. And what we are saying here is, interpret this statute in light of the legal context that Congress had it, which is --
02-1672 +++$+++ 401 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it -- it's arguable except that Mr. Jackson was not discriminated against because of his gender.
02-1672 +++$+++ 402 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. But this statute does not require discrimination because of such individual's sex. It require --
02-1672 +++$+++ 403 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- exactly like title VII, but --
02-1672 +++$+++ 404 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's -- it's written exactly not like title VII, Justice O'Connor, and it's written far more like section 1982, which was at issue at Sullivan, which doesn't have a such individual's limitation. And in -- and section 1982 was interpreted to mean discrimination on the basis of race in depriving people of interests of property violates that statute and affords a private right of action to the victim of retaliation. And so too here. And a person who is victimized by retaliation because that person has been subjected before -- because he complained about sex discrimination is a victim of discrimination within the meaning of this statute.
02-1672 +++$+++ 405 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that's where you hang. You -- you really think Congress, when it enacted title IX, paid close attention and said -- instead of saying no person in the United States shall on the basis of that person's sex be excluded from participation, you think somebody had -- had suggested that language, and they said, oh, no, no, no, that would make it too narrow. We have to take out that person's. I -- I don't -- it doesn't strike me as a -- as an obvious import of not including the word that person's sex. It's a very natural way to write it: no person in the United States shall on the basis of sex.
02-1672 +++$+++ 406 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But this is -- it opens it up to this interpretation, and then you have to look at all the relevant considerations. Inserting the words, such individual's, would foreclose that kind of retaliation claim, and it's not here. And so it's -- then you have to look at all the other relevant considerations, including Sullivan, including the fact that this is of vital importance to promoting the purposes of the act, including the fact that the agencies responsible for enforcing this provision have both interpreted -- the key agencies have interpreted it to encompass protection against retaliation, and including the fact that there's absolutely no legitimate interest that a -- a recipient has in retaliating against somebody simply because he's filed a title IX sex discrimination complaint.
02-1672 +++$+++ 407 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Gornstein, what implication would there be, if we took the view of the circuit here, for Federal employment? Title VII does have a discrete retaliation provision, but it doesn't with respect to Federal employees, if I understand.
02-1672 +++$+++ 408 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. In -- it -- we -- we have taken the position that there is, based on a textual argument within the Federal sector provision, a basis for finding a retaliation prohibition over and above the use of discrimination. We have not taken that position with respect to the -- to some other statutes. So we do think this is a statute-by-statute analysis and that you just can't adopt an automatic principle that because there's an anti-discrimination provision, it automatically always picks up retaliation protection. You have to look at it on a statute-by-statute basis. And here, though, all the relevant considerations, including Sullivan, including the need for this kind of protection to further the purposes of the statute, including the agencies' interpretation of this statute which, by the way, does provide fair notice that this was prohibited, included in -- I think I wanted to get back to Justice Kennedy's question about the Spending Clause. What the Spending Clause does not require is that it specifically refer to retaliation any more than it required that it specifically refer to peer-on-peer harassment. What it does require, though, is fair notice, and that fair notice is supplied by the Sullivan decision, this Court's cases saying that Sullivan is an important backdrop principle against which title IX was enacted, and finally the regulations themselves, which specifically forbid retaliation.
02-1672 +++$+++ 409 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are punitive damages available under title IX?
02-1672 +++$+++ 410 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry. Punitive damages would not be available against a municipality or against a -- but it could be available against some other private recipients.
02-1672 +++$+++ 411 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Gornstein. Mr. Thomas.
02-1672 +++$+++ 413 +++$+++ FALSE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, may it please the Court: Justice O'Connor, I would like to respond to the question that you raised immediately. I can't think of any school board lawyer who is called by his superintendent and told that I had a letter from OCR and they want to know why you aren't doing this and that who would not be in that superintendent's office that moment because when OCR comes in, they canvas everything. I mean, and as a part of negotiating and their investigative teams, they're lay people. They're not lawyers. They come in demanding, and what they prepare for compliance, I can't even begin to articulate how overreaching it is. And so I say I wanted you to --
02-1672 +++$+++ 414 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How often has OCR come to the school district in question under title IX? There are many statutes that --
02-1672 +++$+++ 415 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I would want to suggest --
02-1672 +++$+++ 416 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- OCR administers.
02-1672 +++$+++ 417 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In 1996, we had a conclusion of an OCR title IX investigation because it dealt with boys' football as it related to related sports offered for girls. So we -- we know about OCR, and they're in Atlanta. They are about 167 miles away and when -- and when they come, they come, Your Honors. If I may, I'd like to get right now to what I had raised as the issue here, and that's whether or not an implied private right of action under title IX for retaliation for petitioner who himself says that he's not a victim of discrimination, but merely an advocate. He's an advocate of gender equity, and we say no.
02-1672 +++$+++ 418 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How does he differ -- how does he differ from the renter in Sullivan who was complaining about the refusal to sell or lease property to African Americans? He wanted to lease his property, and as a result, he was thrown out of the club. And this Court said he could maintain that suit.
02-1672 +++$+++ 419 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, I offer this one observation. Under 1982, there is not a corollary administrative remedy. So in the Sullivan situation, the only advocate available at that time was the owner of the home. And -- but I would comment that as he continued in his litigation, he continued to advocate. Under title IX, as we have discussed, for the advocate is the phone call, the toll-free call to OCR and express your concerns and your issues about what's happening. And we find significance in that because the ultimate benefit is for the designated class, which would be the basketball team. In a private lawsuit filed by Mr. Jackson, the damage award goes directly to him. If he's successful in getting injunctive relief, it goes only to him. In other words, school board, you can't retaliate or you're enjoined from retaliating against him in the future, but nothing from that Federal court would go to benefit the girls' basketball team.
02-1672 +++$+++ 420 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what -- what do you make of the -- the point that Mr. Dellinger stressed and others have stressed that, in fact, there is no administrative remedy in the real world? It's -- it's -- there -- there have never -- there has never been an instance in which funds have been withheld.
02-1672 +++$+++ 421 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again, Justice Souter, no, the funds have not been terminated. But I can only share with you my experiences with dealing with these people.
02-1672 +++$+++ 422 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you with respect to that, is OCR so different from other agencies that have to pick and choose because they simply don't have the resources to enforce? Now, how often does OCR, in fact, go in and investigate? How many times do they say, well, that's low priority for us, girls' soccer or girls' basketball, and we have bigger fish to fry?
02-1672 +++$+++ 423 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, the only thing that I can say is that on my watch, the number one priority is to keep OCR out. So -- so therefore --
02-1672 +++$+++ 424 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that wasn't my question. My question is of the universe of complaints that are made under title IX, how many does OCR actually follow up, or isn't it strapped for resources so that it can't, however much it may want to, come in the way you described?
02-1672 +++$+++ 425 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, that was something that was recognized in Cannon. I -- I think that was cited in several of the footnotes.
02-1672 +++$+++ 426 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that was the very reason for recognizing a private right of action because the -- the requirement, the anti-discrimination requirement, would be a dead letter if you didn't have people who could enforce it.
02-1672 +++$+++ 427 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but again, stay mindful. Geraldine Cannon, though, she said, I did not get admission to the -- the med school because of my sex, and she is clearly within the proviso of no discrimination on the basis of sex. So --
02-1672 +++$+++ 428 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but the -- the argument that's being raised is whether we're talking about the person who is listed in the statute as the primary beneficiary of the anti-discrimination statute or whether we're talking about the teacher who blows the whistle and so on -- the -- the argument is unless you allow this teacher or this whistle blower to -- to bring the private action, your statute is a dead letter, that the -- that if -- if -- once you recognize a private action, you've either got to recognize this kind of private action or you can forget the whole thing. That's the argument, and -- and so simply to say, well, they're not within the -- the primary ambit of benefit of the statute is -- is not to the point of the argument.
02-1672 +++$+++ 429 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, let me offer this in two ways. One, it's not realistic. In -- in other words, when -- when you have a scenario about the private cause of action, teachers aren't -- I mean, these parents and -- and the -- and especially in Birmingham, we have an athletic director at the school. We have a director of athletics for the whole school system. And so that -- that's not realistic, I mean, because at the end of the day, the administration is very conscientious about all of its programs.
02-1672 +++$+++ 430 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's -- to say trust me is -- is not an answer. Cannon is one thing, a woman in her 30's. A sixth-grader who is told she can't play on a team because there's none for girls is hardly similarly situated and the law won't be enforced as to her unless you have someone who is best positioned to know what is going on, who is the coach.
02-1672 +++$+++ 431 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Justice Ginsburg, we get back to the point who really benefits because -- and especially in this scenario, if the advocate sues and receives the monetary damages, that goes to the advocate.
02-1672 +++$+++ 432 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The -- the point is if you say to the school, you cannot retaliate against someone because a complaint has been made, that's a powerful incentive for the school not to retaliate against someone and to do something about the discrimination.
02-1672 +++$+++ 433 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but again, though, Justice Ginsburg, the other side of that would be when under the spending legislation, the school board had a right to know what the terms and conditions of the financial assistance would be, and I respectfully submit to you that there was nowhere on the landscape that --
02-1672 +++$+++ 434 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why wasn't it in the regulations of the agency spelled out rather clearly -- the -- the agency that says, Congress has told us to implement this statute, here are our regulations and our regulations are you don't retaliate?
02-1672 +++$+++ 435 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that's a part of the complaint and investigatory process. Now, Justice Ginsburg --
02-1672 +++$+++ 436 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The regulations didn't say anything about a private cause of action, did it?
02-1672 +++$+++ 437 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it did not.
02-1672 +++$+++ 438 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And the statute didn't say anything about a private cause of action.
02-1672 +++$+++ 439 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not on the face.
02-1672 +++$+++ 440 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the regulation did tell the school not to retaliate in effect. Tell me, does the record disclose what happened to the petitioner, Jackson? What -- what has been the result of all this? Does the record tell us that?
02-1672 +++$+++ 441 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it does not, Justice O'Connor. And -- and again, it's on a motion to dismiss, and obviously, once it was --
02-1672 +++$+++ 442 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does it tell us that he was removed as coach?
02-1672 +++$+++ 443 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
02-1672 +++$+++ 444 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does the record tell us that?
02-1672 +++$+++ 445 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it does say that he was relieved.
02-1672 +++$+++ 446 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can I ask you a legal question, nothing to do with, you know, practicalities?
02-1672 +++$+++ 447 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
02-1672 +++$+++ 448 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But suppose you go back to the very old, bad days of the 1950's in the South, the '60's. They pass some civil rights legislation. A lot of legislation was passed in the '60's. Now, under that civil rights legislation, imagine an individual had been kept out of a restaurant or he'd been treated physically badly, not because of his race. He was white, but he was associating with people who were black. And they both go into the restaurant and they both are refused service. Maybe they're beaten up. I mean, both of them. Now, can the white individual bring a lawsuit under the -- the civil rights statute? I've always thought the answer to that question is, of course, he can. Would you -- do you think it's the contrary answer?
02-1672 +++$+++ 449 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, in that context --
02-1672 +++$+++ 450 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
02-1672 +++$+++ 451 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I -- I would say yes.
02-1672 +++$+++ 452 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, of course.
02-1672 +++$+++ 453 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But again --
02-1672 +++$+++ 454 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So therefore --
02-1672 +++$+++ 455 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is this a civil rights statute that provides for a private cause of action? I -- I want to know what the hypothetical is.
02-1672 +++$+++ 456 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'd -- I'd like to -- I'm thinking of various civil rights statutes which make it unlawful to describe -- to -- to discriminate. And now, I agree with you on that answer. The white person could bring a lawsuit on the basis of someone else's race because he's being discriminated against not because of his own race, but because he's being -- he's associated with people who are being discriminated against. I agree with your answer. And so my question is if that's so and if we have a long history here of the words, on the basis of sex, including retaliation not on the basis of my sex, but retaliation on the basis of someone else's sex -- that's what I've complained of -- why isn't this the same thing And to get out my whole question -- there are two parts -- why isn't this the same thing? And the second part is, because I think it is the same thing -- the second part is once it is included in 1981 -- in -- is it 1681(a)?
02-1672 +++$+++ 457 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
02-1672 +++$+++ 458 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Once we include this in 1681(a), that's the end of this case because Sandoval then supports the other side. It doesn't support you. All right. That's my question.
02-1672 +++$+++ 459 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, don't we have to consider at some point in time what the congressional intent was?
02-1672 +++$+++ 460 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, yes.
02-1672 +++$+++ 461 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And again -- and I submit to you --
02-1672 +++$+++ 462 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you -- you go ahead. I'm doing it purely as a matter of logic. I'm saying the old civil rights cases make clear it doesn't have to be on the basis of your own race. History makes clear that retaliation on the basis of someone else's race does fit within -- or gender does fit within 1681, and then that's the end of the case. So I would like your response to that logic.
02-1672 +++$+++ 463 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I would want to submit to you interveningly you have had the passing of the Voting Rights Act of 1965. So everybody now has access to Congress. The whole spectrum of American society is in Congress. So if Congress is being well represented, when it passes the law in 1972, as it did here, it had a different perspective on it. Going back to 1969, some things were foreclosed to some of the citizens of the United States. So, obviously, the scenario of someone advocating, like in Sullivan, would make sense. But I submit to you respectfully, that's not the case now. Over there in Congress is where this debate needs to be, and on the face of this statute, it's not there. Retaliation is not there. If I may, though, Justice Breyer, let me also add as a practical consideration --
02-1672 +++$+++ 464 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, you say it's not there, but the agencies interpreting the statute thought it was there. Isn't that correct?
02-1672 +++$+++ 465 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but that's an -- an investigatory -- the administrative enforcement scenario.
02-1672 +++$+++ 466 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's the --
02-1672 +++$+++ 467 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but their reading of the statute was that the word discrimination included a retaliation claim. That's the kind of regulations they drafted on the basis of their understanding of what Congress intended by using the word -- the words in this statute.
02-1672 +++$+++ 468 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But don't we go -- Justice Stevens, don't we go back to Sandoval? Can you in a regulation do more than what the statute requires?
02-1672 +++$+++ 469 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You cannot use the regulation that goes beyond the meaning of the statute. That's what that holds. But a regulation interpreting what the statute itself provides is in a different ball park. And that's what I understand these regulations to have done, to say what the agencies thought the statute itself meant.
02-1672 +++$+++ 470 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but again, that's retaliation after someone has filed a complaint with the appropriate office.
02-1672 +++$+++ 471 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well -- I mean, Sandoval is very clear. It's a very clear opinion in my view. Very clear. And the key language I thought is, the language statutes that focus on the person regulated rather than individuals protected create no implication of an intent to confer the private right. So they're looking at disparate impact and disparate impact, according to the majority -- I was in the dissent -- did not intend to protect the person discriminated against, but was a way of regulating people so they wouldn't intentionally discriminate. I can understand that. But I apply the same -- I didn't agree with it, but I can understand it. The -- the -- I apply the same reasoning here. The reasoning here is that this retaliation thing is not trying to protect university behavior one whit more than the whole underlying thing is trying to protect university behavior. This is about victims. Retaliation and being fired is about victims. And so given Sandoval, then we have the history, we have the language, and we have that sentence from Sandoval. And all that suggests -- it goes into 1681(a), in which case Sandoval says, a private right of action, given Cannon, would be inferred. Now, what's -- what's -- that's how -- I'm tracing out the logic of the thing. So I want to see what you say.
02-1672 +++$+++ 472 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Breyer, on the face of the statute, I just can't get there. I apologize for that, respectfully, but -- but I can't. And Justice O'Connor, as a follow-up, interestingly enough, in a case on all fours in 1995, Holt v. Lewis, the United States District Dourt for the Northern District of Birmingham -- for the Northern District of Alabama made very clear that an implied private right of action was not cognizable under title IX, and that the regulation was not a basis to follow it. And -- and I submit to you on that basis, that in Birmingham, at very least, because the case was affirmed by the Eleventh Circuit and this Court denied cert in 1997, so anyone who would go --
02-1672 +++$+++ 473 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We -- we can't -- you don't base your argument on giving some legal effect to denial of certiorari --
02-1672 +++$+++ 474 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no, I don't, Justice O'Connor.
02-1672 +++$+++ 475 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you.
02-1672 +++$+++ 476 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but to say -- I was trying to emphasize was the notice and the mind set of the board when it accepted these Federal funds. It had no way of anticipating that retaliation --
02-1672 +++$+++ 477 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It had never anticipated a private right of action, even though it read the Cannon opinion, which was written some 20 years ago? Maybe more than that. I don't remember.
02-1672 +++$+++ 478 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Cannon, your opinion there is going to be around for a long time. The scholars are going to have to debate it for years.
02-1672 +++$+++ 479 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There were some later cases that cast a good deal of doubt on whether we would apply Cannon anymore.
02-1672 +++$+++ 480 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But Congress itself has adopted the rule set forth in Cannon.
02-1672 +++$+++ 481 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but if I may, but then Justice Rehnquist cautioned very clearly that the Court -- in his concurring opinion, that the Court in the future should be extremely reluctant to imply a cause of action absent such specificity on the part of the legislative branch. And that just speaks volumes to me.
02-1672 +++$+++ 482 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It said in this statute we do, having in mind that title VI would be interpreted in the identical way --
02-1672 +++$+++ 483 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, ma'am.
02-1672 +++$+++ 484 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- title VII -- VI proscribing race discrimination in all Federal programs. So it said these statutes aimed at race discrimination, sex discrimination do have a -- a private right of action, and that was the holding of this Court.
02-1672 +++$+++ 485 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, ma'am. Well, but -- but again, it goes -- goes back to -- but would that include retaliation? And -- and --
02-1672 +++$+++ 486 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it seems to me that if you're talking about the sixth grade soccer team, realistically the only one who is going to know anything -- enough and be brave enough to complain will be the teacher. And if you cut the teacher out, then forget it. You have nice words on paper and they'll never be enforced.
02-1672 +++$+++ 487 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Justice Ginsburg, that teacher could easily, if they don't get a positive response from the administration, they can call OCR.
02-1672 +++$+++ 488 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And OCR says, as it usually does, we're too busy. Sorry.
02-1672 +++$+++ 489 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. They -- no --
02-1672 +++$+++ 490 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Congress didn't give us enough money to do the job.
02-1672 +++$+++ 491 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do we know that? I mean, do we have any idea how effective the enforcement of OCR is? Just because they haven't cut off funds --
02-1672 +++$+++ 492 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I --
02-1672 +++$+++ 493 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- they may well not have cut off funds because anybody who gets a directive from them will hop to it.
02-1672 +++$+++ 494 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, that's exactly it. I mean, I have firsthand knowledge that when they call, we're supposed to jump. It's no doubt about it.
02-1672 +++$+++ 495 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And do they call more than infrequently?
02-1672 +++$+++ 496 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All the time. And -- and the other side of that coin --
02-1672 +++$+++ 497 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is your personal testimony.
02-1672 +++$+++ 498 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, ma'am. Yes, it is. (Laughter.)
02-1672 +++$+++ 499 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and Justice --
02-1672 +++$+++ 500 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There is -- there is much testimony on the other side that says we call and call and they don't come.
02-1672 +++$+++ 501 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I've been in educational law now almost 27 years, representing both teachers and school boards. So I have firsthand knowledge. I mean -- and I've experienced it both at the secondary level and higher ed. I mean, when they come in, they come in.
02-1672 +++$+++ 502 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How many title IX complaints in your -- in your experience? You mentioned one. Is there any other?
02-1672 +++$+++ 503 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Two.
02-1672 +++$+++ 504 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Two? In how many years?
02-1672 +++$+++ 505 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In 26.
02-1672 +++$+++ 506 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Two in 20-something years.
02-1672 +++$+++ 507 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, ma'am. But they're all memorable. (Laughter.)
02-1672 +++$+++ 508 +++$+++ TRUE +++$+++ MR. THOMAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They're all -- thank you.
02-1672 +++$+++ 509 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Thomas. Mr. Newsom.
02-1672 +++$+++ 511 +++$+++ FALSE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Stevens, and may it please the Court: I'd like to address, if I may, several concerns that have been raised during the -- the preceding arguments. One is to clarify some things about the scope of the administrative remedy. The other side, with respect, wants you to think that without the implied right of action for damages and fees, whistle blowers are left out in the cold. That is not true. The administrative remedy -- it's not just about funding termination. 34 C.F.R. 106.3 says that the OCR may use any remedy that it deems necessary. The OCR, as we say in our brief, has itself touted its flexible approach to enforcement which includes, among other things, as this Court noted in Gebser, citing back to its earlier -- pardon me -- decision in North Haven, individualized relief in appropriate circumstances. So the point, as Senator Bayh himself noted on the floor of the Senate, is that it is the threat of -- of funding termination. So while the OCR is wielding the club of funding termination, they can extract or leverage individualized relief in appropriate cases.
02-1672 +++$+++ 512 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do we -- do we have any -- any empirical evidence as to -- as to what they have thus leveraged?
02-1672 +++$+++ 513 +++$+++ TRUE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ None that I am aware of, Your -- Your Honor, but --
02-1672 +++$+++ 514 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The -- the other side says, look, dead letter. What do we know about such life as there may be in the letter?
02-1672 +++$+++ 515 +++$+++ TRUE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well -- well, I will, I assume, perhaps foolishly, defer to the Solicitor General's office to tell you what -- what the DOJ has and hasn't done. What I can tell you is that -- that the DOJ manual that the other side cites throughout its briefs expressly encourages agencies, when enforcing these -- these things, to leverage even damage awards on behalf of individual claimants. So I can tell you that, as a matter of policy, this is far from a dead letter.
02-1672 +++$+++ 516 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You -- you don't concede the point that it is the role of this Court to determine whether agencies are inefficient or not --
02-1672 +++$+++ 517 +++$+++ TRUE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course not.
02-1672 +++$+++ 518 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- and if they are inefficient to -- to raise up private attorneys general to -- to fill the void?
02-1672 +++$+++ 519 +++$+++ TRUE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course not, Justice Scalia, and -- and the Court knows very well from my brief that our position is that when you're talking about implied rights of action, this Court has made clear, in the cases leading up to Sandoval, culminating in Sandoval, that these sorts of policy considerations really are not relevant.
02-1672 +++$+++ 520 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. If they're not relevant, do you think that the regulation which provides -- do you think it's unlawful?
02-1672 +++$+++ 521 +++$+++ TRUE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do not contest the validity of the regulation.
02-1672 +++$+++ 522 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. If you don't contest the validity of it and you think it's lawful, do you think it's doing something other than interpreting 1681(a)?
02-1672 +++$+++ 523 +++$+++ TRUE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Your Honor.
02-1672 +++$+++ 524 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what is it doing?
02-1672 +++$+++ 525 +++$+++ TRUE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- section 100.7(e), the regulation upon which Jackson chiefly relies, we readily concede is a valid, effectuating 902 regulation, but all -- all it does by its text -- and its structure makes clear all it does -- is to govern the internal processes of official OCR investigations. It does not go further than that. This Court in Sandoval was very clear that it was -- that it was only authoritative interpretations of a statute's terms that can be enforced pursuant to that statute's implied right of action. Another point I want to make about the administrative remedy. Justice Ginsburg asked whether funds had ever been withdrawn, and even there, again, if the answer is no, the point is not whether funds have been withdrawn, but that as Senator Bayh himself noted, that the threat of funds is where the heavy lifting is done in administrative enforcement. Another point about administrative enforcement is whether or not there are sufficient resources. That, obviously, was a valid concern in Cannon, given presumably the inordinate number of complaints about core, traditional discrimination. But as the other side has made clear in its briefing in this case, at page 26 of the petitioner's brief -- and then there's a brief filed on behalf of the Southern Poverty Law Center that spins this out in some detail -- there just aren't many of these retaliation claims out there, either in the -- either -- either in the judicial system or at OCR.
02-1672 +++$+++ 526 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is that, do you think?
02-1672 +++$+++ 527 +++$+++ TRUE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, my -- I'm sorry.
02-1672 +++$+++ 528 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it because no remedy is available, or is it because there are just very few instances giving rise to such?
02-1672 +++$+++ 529 +++$+++ TRUE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think in all likelihood, it is the latter. Certainly I would think that the Court would presume -- would not presume ill of local school districts and -- and even State universities, but would presume that they are complying with, if not clearly articulated law, certainly good public policy. The second point is that what the -- the absence of private actions for retaliation shows is that title IX's remedial apparatus is kicking along just fine without the implied right of action.
02-1672 +++$+++ 530 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do we decide this case on the assumption that there was retaliation here by virtue of a complaint of violation of title IX?
02-1672 +++$+++ 531 +++$+++ TRUE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly, Your Honor --
02-1672 +++$+++ 532 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We should decide it on that assumption?
02-1672 +++$+++ 533 +++$+++ TRUE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You have to take as true, of course, the facts as pledged in the -- as pleaded in the complaint. Another point I'd like to make briefly is about the comparison to title VII. The other side wants you to look very closely at title VII when you're -- whether it's on the basis of sex or on the basis of such individual's sex, but they want you to ignore title VII and the fact that it very clearly and expressly deals with retaliation in a separate subsection, a separate provision. And I didn't -- I'll have to confess I didn't hear much during the first argument. I had my head in my own book, but what I did hear is Justice Souter referring to the -- the -- an instance in which Congress has a choice of two models for -- for constructing a statute, and it chooses one over the other, and isn't it a reasonable inference to allow Congress to make that choice. That's what happened here.
02-1672 +++$+++ 534 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Like the choice it made in 1982, very spare statute. When Congress got to title IX, it knew about Sullivan and so it -- this -- this statute in its breadth and its simplicity bears a striking resemblance to the old pattern in 1981 and 1982 and 1983. So if you say to me, look at the closest model, it would be that and not the more detailed civil rights legislation that came in '64 and '65.
02-1672 +++$+++ 535 +++$+++ TRUE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if -- if I could answer in two parts. First, to say that I think what was going on in 1964 in the Civil Rights Act, obviously, you have Congress in title VII addressing itself both to discrimination and to retaliation separately; in title VI, passed as part of the same piece of legislation, addressing itself solely to discrimination. And to use Justice Souter's analogy, in '72 Congress takes the title VI model and not the title VII model. Now, to get to your question specifically, I think, about Sullivan is at the heart of your question, Sullivan -- I think there are a number of problems with the other side's reliance on Sullivan. First, with all due respect to this Court, Sullivan itself is pretty opaque. It certainly does not announce with flashing lights a principle that every anti-discrimination provision necessarily entails a subsidiary or corollary --
02-1672 +++$+++ 536 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It says if you're thrown out of the club because you champion the rights of a black man, you have a right to sue under this statute.
02-1672 +++$+++ 537 +++$+++ TRUE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Even if I were to grant your assumption of clarity in Sullivan, which Justice Harlan, I presume, would not agree with -- he was left sort of scratching his head trying to figure out what the Court was trying to do. But even granting your assumption, if 1982 can be construed that way, that -- that construction does not necessarily carry over to every anti-discrimination provision. 1982, of course, uses different language to begin with and, more importantly, is -- is passed under Congress's power under the Thirteenth Amendment, which is the broadest conceivable --
02-1672 +++$+++ 538 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but it did construe the word discrimination, didn't it?
02-1672 +++$+++ 539 +++$+++ TRUE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, sir. Discrimination is not even in -- is not even in title -- rather, in 1982. So the language is very different --
02-1672 +++$+++ 540 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On account of race is in it. Right?
02-1672 +++$+++ 541 +++$+++ TRUE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'll have to confess I don't -- it does say something like every person shall have the same right as -- dot, dot, dot, as white persons. But so the -- the language frankly is pretty different, and the more fundamental point I'm trying to make is that even if that's true for -- for that statute passed under that constitutional power, here we are talking, as Justice Kennedy made clear at the very outset of the argument about a Spending Clause statute, where it is required that conditions on the acceptance of Federal funds be express, and it is not clear to me where the Birmingham Board would have gotten its clear notice in this case. If you can imagine --
02-1672 +++$+++ 542 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems to me they would get it when Congress says, and here's the statute, very spare, and agency, you get up guidelines, that any responsible school board would say, well, we've got only one sentence in the statute. We better look at the regulations to find out what's required.
02-1672 +++$+++ 543 +++$+++ TRUE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree, and -- and if -- and if the Birmingham Board, which I trust it did, looked to the regulation here, what it would have found is a regulation not that clarifies the substantive scope of title IX, but instead that -- that manages the internal operating procedures for official agency investigations. So to be sure, the Birmingham Board was on notice that it could not retaliate in -- in the business of an official OCR investigation, and if it did, it would be subject to administrative enforcement, but it was -- it was not on notice either of the fact that there was a generic anti-retaliation prohibition, much less the fact that if it violated any such nonexistent --
02-1672 +++$+++ 544 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's -- we're not talking about the procedure, I mean, what procedural moves. What must you do to comply? And it has in there you don't retaliate. So you mean that a board could responsibly take the position, well, the -- the regulations tell us we don't retaliate, but when we're not faced with any agency breathing down our neck, all we have is a teacher in front of us, then we can retaliate? I mean, they must have known the statute meant don't retaliate.
02-1672 +++$+++ 545 +++$+++ TRUE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and with respect, I think there is a difference, particularly given the clear notice requirements that this Court has -- has used in Spending Clause cases between retaliation in the context of an OCR investigation and retaliation generally, but -- I'm sorry.
02-1672 +++$+++ 546 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I really don't get that. If the rule is don't retaliate and if we investigate, that's one of the things we're going -- that's going to be on our checklist. But the substantive rule is don't retaliate.
02-1672 +++$+++ 547 +++$+++ TRUE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, may I respond?
02-1672 +++$+++ 548 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
02-1672 +++$+++ 549 +++$+++ TRUE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Even granting your assumption, Justice Ginsburg, what is painfully not clear is that the -- is that the Birmingham Board would be subject to -- to a private right of action for damages and fees even in -- in the event that there were some generally applicable anti-retaliation provision.
02-1672 +++$+++ 550 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Newsom.
02-1672 +++$+++ 551 +++$+++ TRUE +++$+++ MR. NEWSOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Stevens.
02-1672 +++$+++ 552 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Dellinger, you have about 3 and a half minutes.
02-1672 +++$+++ 554 +++$+++ FALSE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I should make it clear that we're not asking this Court to create or infer a new cause of action. We're asking the Court to interpret the cause of action that the Court itself recognized in Cannon v. the University of Chicago, that was validated by Congress. It was reaffirmed in the Court's opinion in Sandoval. And when you look at the scope of that -- of that prohibition, that cause of action, why would it not extend to retaliation? The idea that you --
02-1672 +++$+++ 555 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Other statutes do it separately.
02-1672 +++$+++ 556 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I understand.
02-1672 +++$+++ 557 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Other statutes don't view the one as -- as being incorporated in the other.
02-1672 +++$+++ 558 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The practice of Congress has not been consistent on incorporating express provisions sometimes because of language differences, but there are half a dozen major statutes that the courts of appeal have consistently assumed included retaliation as part of discrimination. Section 1981, section 1982, title VI, 1982 as determined by this Court, parts of the Rehabilitation Act have all been construed that way. And why would they not? The notion that you have to admit Geraldine Cannon to the University of Chicago Medical School, you can't discriminate against her on the basis of sex, but then you could turn around and expel her for complaining about your admissions policy makes no sense. In this case, relying upon the vagaries of what any administration might do about enforcement is not necessarily what Congress wanted, and that was this Court's decision in Cannon. And it's reaffirmed it frankly --
02-1672 +++$+++ 559 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There are no vagaries in private enforcement. Private attorneys general always act in the interest of the whole polity. There are no vagaries there.
02-1672 +++$+++ 560 +++$+++ TRUE +++$+++ MR. DELLINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in this case, it has been known to effectuate anti-discrimination laws in order to bring them about by allowing people to step forward. The last point they make is that even if there's a cause of action, and even if the cause of action covers retaliation, it cannot be brought by Coach Jackson because he's not also the victim of the underlying discrimination. That makes no sense in law or in logic. If the captain of the boys' basketball team joins with the captain of the girls' basketball team in a supportive way to say, they're just not treating girls' basketball equally and fairly, and they're both suspended from their teams or dropped from the honor society in retaliation, it makes no sense. Either they both have -- they've both been discriminated against on the basis of sex because they're trying to rectify sex discrimination or neither is. And in this case, it's going to be critically important that this valuable statute, which has meant so much for athletic and academic opportunities for women, to have people like Coach Jackson able to be confident that they've got a right that they can enforce that will allow them to come forward within the school itself and try to rectify these anomalies in and under title IX. Thank you.
02-1672 +++$+++ 561 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Dellinger. The case is submitted.
03-10198 +++$+++ 565 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument now in Antonio Dwayne Halbert v. Michigan. Mr. Moran.
03-10198 +++$+++ 567 +++$+++ FALSE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The issue in this case is whether, 42 years after this Court decided in Douglas v. California that indigent defendants have the right to the assistance of counsel for a first-tier direct felony appeal --
03-10198 +++$+++ 568 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, now, Douglas didn't involve a guilty plea, I guess.
03-10198 +++$+++ 569 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It did not, Your Honor. It was a trial case.
03-10198 +++$+++ 570 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And did the Court say anything about the effect of having it be a guilty plea? I guess it didn't.
03-10198 +++$+++ 571 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It did not. None of this Court's cases in the Douglas line have turned on whether the conviction was by trial or by plea.
03-10198 +++$+++ 572 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does that make a difference or could it?
03-10198 +++$+++ 573 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe it does, Your Honor, because as Mr. Halbert's case demonstrates, all sorts of difficult, technical issues can arise in a guilty plea. Of course, certain issues are waived. Trial issues are waived by the effect of a guilty plea, but many other issues remain. And as Mr. Halbert's case demonstrates, especially in the guilty plea cases -- this Court well knows the effect of the Federal sentencing guidelines -- very complicated issues of sentencing law arise. And now Michigan has a sentencing guideline system that is perhaps more complicated than the Federal system that's been in effect since the 1980's.
03-10198 +++$+++ 574 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did -- did your client waive any right to appeal here in connection with the proceedings of the plea?
03-10198 +++$+++ 575 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He did not waive a right to file an application for leave to appeal. Because of the --
03-10198 +++$+++ 576 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What did he waive?
03-10198 +++$+++ 577 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He waived the right to have a -- to have what is called in Michigan an automatic appeal, in other words, the right to automatically have full briefing and oral argument. So what he agreed to by pleading was to go through the application for leave to appeal procedure which involves a preliminary determination of merit as to whether the appeal should proceed.
03-10198 +++$+++ 578 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why didn't he waive the right to have counsel for that -- for that purpose since that was the law in Michigan?
03-10198 +++$+++ 579 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, he did not -- first of all, as a matter of fact, he did not. He was never told at any point during the plea proceedings that he would be giving up his right to counsel.
03-10198 +++$+++ 580 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, he was told what -- what right to counsel he would have and it didn't include this.
03-10198 +++$+++ 581 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He was told that under certain circumstances the judge would appoint counsel.
03-10198 +++$+++ 582 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right.
03-10198 +++$+++ 583 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the judge never said, under any other circumstances, I will not appoint counsel.
03-10198 +++$+++ 584 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, isn't that a perfectly natural inference if you're told you get A and B, that C and D might have been -- that C and D will not be given?
03-10198 +++$+++ 585 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It might be a natural inference for somebody with a level of sophistication, but Mr. Halbert is a special education student, functionally illiterate. And nobody explained to him that he wouldn't be given his right to counsel.
03-10198 +++$+++ 586 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, did we take this case on the ground that he wasn't adequately advised or did we take the case on the ground that even if he were advised, he'd still have his right?
03-10198 +++$+++ 587 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I hope the latter, Justice Kennedy, because this is a case in which the State is making a waiver argument. And, of course, the waiver argument is not part of -- is not the intent of the statute. What the statute does is it tacks on and, by the way, the defendant should be advised at the time of the plea that they won't be getting counsel.
03-10198 +++$+++ 588 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I -- I take it you would challenge the validity of the waiver even if he were advised?
03-10198 +++$+++ 589 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
03-10198 +++$+++ 590 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And even if he said, I hereby waive?
03-10198 +++$+++ 591 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, we would because that is a waiver that is designed to extract only from the poor. That waiver has no effect whatsoever on those with money because, in fact, a money defendant is not even eligible for appointed counsel on appeal. So that waiver has no effect whatsoever on --
03-10198 +++$+++ 592 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, wouldn't -- I'm -- I'm sorry.
03-10198 +++$+++ 593 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would have no effect whatsoever on money defendants I'm saying.
03-10198 +++$+++ 594 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wouldn't your position be different if he had been advised that he had exactly the right that you claim he has, and the court said, however, in Michigan you may not enter the -- the plea unless you waive that right? If -- if you don't want to waive that right, which I've just explained to you, we'll -- we'll have a trial. Would -- would your answer still be that -- that waiver would be as a matter of law impossible?
03-10198 +++$+++ 595 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The waiver would be unconstitutional under those conditions because it is a discriminatory waiver. To show how breathtaking the State's argument --
03-10198 +++$+++ 596 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How -- why is that prejudicial to him? He says, okay, I can't plead guilty. I really did it but I can't plead guilty. Go ahead.
03-10198 +++$+++ 597 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry.
03-10198 +++$+++ 598 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why doesn't he just have a trial? He says, I'm not going to contest the trial.
03-10198 +++$+++ 599 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, as this Court has long recognized, a trial provides very substantial benefit. I mean, excuse me. A guilty plea provides very substantial benefits. And so the effect of the Michigan statute then would be only the money defendant can receive the benefits of a guilty plea and then have sentencing errors corrected.
03-10198 +++$+++ 600 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, is that what you were going to say to Justice Souter, before I interrupted, that it's -- that it's far-reaching.
03-10198 +++$+++ 601 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Well, not only that, if the State's waiver argument is correct, then presumably the State could extract a waiver saying you can't have free transcripts. You can't have the waiver of the filing fees. In fact, the State could extract a waiver saying you can't have counsel at sentencing.
03-10198 +++$+++ 602 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ These are all disparate impact arguments. There's -- there's -- you're not making any argument that the State intentionally discriminates against the poor. You're just saying the effect of this is harder on the poor than it is on the rich. But I thought our -- our equal protection cases have -- have said that disparate impact doesn't -- doesn't hack it as far as equal protection is concerned.
03-10198 +++$+++ 603 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia, I actually have two responses to that. First, this is intentionally aimed at the poor. Looking at 770.3a, the statute under -- in question here, it is clearly aimed at the indigent. It refers to the indigent. So this is a statute that on its face is -- is taking away the right of the indigent and only the indigent to have -- have an attorney. So I don't agree that is is a -- simply a disparate impact case. But in the context of appellate counsel for a first-tier felony appeal, this Court's cases have -- have not applied the same line of analysis that this Court has applied in other contexts, and I think that's quite clear most recently in the MLB case --
03-10198 +++$+++ 604 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In any event, you pointed out that on the face there is the distinction on the face of it --
03-10198 +++$+++ 605 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-10198 +++$+++ 606 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- it is not a disparate impact case at all --
03-10198 +++$+++ 607 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-10198 +++$+++ 608 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- because it affects only indigents.
03-10198 +++$+++ 609 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. There is no question that this statute was enacted for and specifically applies only to the indigent. It has -- it has no impact whatsoever on the wealthy, and it's aimed at the -- at the indigent only. So I do -- I do not agree that this --
03-10198 +++$+++ 610 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Whenever a State has -- has initially given a broad benefit to the poor, whenever it cuts back on poor -- on part of that benefit, it is denying equal protection to the poor? That -- that seems to be an extraordinary proposition. The State isn't picking on the poor. It's just saying that -- that the -- the free counsel we have agreed to provide in the past we're no longer going to provide in this -- in this one instance of guilty pleas. And -- and you say that -- that is intentional discrimination against the poor?
03-10198 +++$+++ 611 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's not a -- a disparate impact claim I say, because it is intentionally aimed at the poor. The statute was designed to take away counsel from the poor and only from the poor.
03-10198 +++$+++ 612 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So any cutback on benefits that is given -- on benefits that are given to the poor is intentional discrimination against the poor.
03-10198 +++$+++ 613 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not saying any, Justice Scalia.
03-10198 +++$+++ 614 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Just this one because that's your case.
03-10198 +++$+++ 615 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This case certainly is.
03-10198 +++$+++ 616 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're saying this is case like Douglas which was equal protection, like a free transcript, like a filing fee for an appeal.
03-10198 +++$+++ 617 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-10198 +++$+++ 618 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're bracketing --
03-10198 +++$+++ 619 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This case -- in many ways the restrictions that are placed on the indigent's ability to appeal in Michigan, as a result of this statute, are worse than those that were struck down in Douglas because at least in Douglas the court, the appellate court, would review the entire transcript, looking for arguable issues. We don't even have that here. All we have here is the indigent forced to shift for himself, forced to try and determine whether there are any issues, forced to order his own transcript. Under the Michigan statute, the indigent has to figure out how to obtain his or her docket entries, his or her transcripts, his or her prisoner account statements, all the documents necessary for filing a first appeal that would ordinarily be done by counsel. And so --
03-10198 +++$+++ 620 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I just understand one point that Justice Scalia's question raises for me? In your view, is the provision of counsel for the indigent for appellate purposes purely a matter of grace, or was there some underlying obligation to provide counsel?
03-10198 +++$+++ 621 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, it's my -- it's certainly my contention, Justice Stevens, that Michigan is required to afford appellate counsel in this situation for a first-tier direct felony appeal on the merits.
03-10198 +++$+++ 622 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that ultimately your case rests not on equal protection but due process.
03-10198 +++$+++ 623 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's a merger of both principles, as this Court said --
03-10198 +++$+++ 624 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it's one as much as the other, isn't it?
03-10198 +++$+++ 625 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-10198 +++$+++ 626 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, you're -- we're saying if you're going to provide a first appeal of right, one incident of that is, as a matter of due process, you've got to provide counsel.
03-10198 +++$+++ 627 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Souter.
03-10198 +++$+++ 628 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you're -- you're retracting the pure equal protection claim? I don't think you want to do that. I mean, you would say that even if there were not a due process right, you would still regard this as -- as directed against the poor.
03-10198 +++$+++ 629 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is directed --
03-10198 +++$+++ 630 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Or not?
03-10198 +++$+++ 631 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is directed against the poor, which is why there is an equal protection component to this argument, but this Court's cases --
03-10198 +++$+++ 632 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you say that component wouldn't exist unless you begin with a due process right to have counsel on appeal.
03-10198 +++$+++ 633 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that's right. It's -- it's difficult -- I have to confess, Your Honor, it's difficult sometimes to separate out the due process and equal protection strands from the Griffin and Douglas line, and this Court most recently in MLB said that there is a certain merger. Also, I believe in Smith v. Robbins this Court reiterated that there is a certain merger of the lines in these cases. But --
03-10198 +++$+++ 634 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're -- you're saying that the due process is what gets you beyond the stage of merely providing counsel as a matter of grace. That's what due process does for you. Because they have to provide counsel not merely as a matter of grace, you have a very clear equal protection case which you would not otherwise have. Isn't -- isn't that the way the two work together?
03-10198 +++$+++ 635 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's right, Justice Souter. I think I agree with that.
03-10198 +++$+++ 636 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can -- in your view, can the State require a waiver of the right to appeal for everyone?
03-10198 +++$+++ 637 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's a question this Court hasn't decided, and I don't have a position on that. But that's far different from this case because that would not be discriminatory.
03-10198 +++$+++ 638 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I'm not so sure. It certainly goes to the importance or the significance of the underlying right. My understanding is -- correct me if I'm wrong -- that in the Federal system, we require waivers of the right to appeal frequently, even waiver of the right to appeal the sentence even before the sentence is calculated, as I understand it.
03-10198 +++$+++ 639 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-10198 +++$+++ 640 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And do you question the lawfulness of that?
03-10198 +++$+++ 641 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't. And that -- that case has not come before this Court yet, and so I don't know how this Court would decide that case if it comes. I know some of the Federal circuits have upheld such appellate waivers as a part of a negotiated guilty plea. One thing the Michigan statute is -- does is it takes away the right to appeal effectively for indigents without negotiation. It's -- it's the baseline.
03-10198 +++$+++ 642 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, Mr. Moran, if -- if you're -- if you're tying your equal protection claim to a due process claim and if it is not a violation of due process to require people to waive their -- I mean, you can waive entirely the right to appeal. Surely you can waive the right to counsel on appeal. If that's not a violation of due process, then your equal protection claim dissolves.
03-10198 +++$+++ 643 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Your Honor, the problem is -- is that the statute requires only the poor, imposes a forced waiver on only the poor.
03-10198 +++$+++ 644 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's an equal protection claim.
03-10198 +++$+++ 645 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's an equal protection claim.
03-10198 +++$+++ 646 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you've -- you've said your equal protection claim hinges on the due process claim. If the due process claim, in turn, hinges upon waiver, then apart from the -- from the dispute in this case as to whether waiver occurred or not, if waiver does occur, there's no due process claim, and then there's no equal protection claim.
03-10198 +++$+++ 647 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm really not sure that you can separate out the two strands of the Fourteenth Amendment again, and I know this Court didn't try in MLB, and I know this Court didn't try in Smith v. Robbins, so that there is -- there is a component of both. And it's precisely because of these sorts of questions that I think you have to view them as an integrated whole for purposes of the Griffin/Douglas line.
03-10198 +++$+++ 648 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In any case --
03-10198 +++$+++ 649 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where -- where do we find the waiver here? Is it in the joint appendix?
03-10198 +++$+++ 650 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's my position there was no waiver, but the --
03-10198 +++$+++ 651 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you referred to something that was waived.
03-10198 +++$+++ 652 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-10198 +++$+++ 653 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where would we find that?
03-10198 +++$+++ 654 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the plea proceeding. It's the plea proceeding. And it's --
03-10198 +++$+++ 655 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, don't take your time to look it up. Maybe counsel for respondent can find it for us.
03-10198 +++$+++ 656 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's -- it's in the joint appendix --
03-10198 +++$+++ 657 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right.
03-10198 +++$+++ 658 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- beginning on page 19.
03-10198 +++$+++ 659 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's their argument anyway. Let them --
03-10198 +++$+++ 660 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm missing something on waiver, but I would have thought a person can waive a -- a right to have a counsel on appeal. He can waive a trial. He can waive a jury trial. But before he has to -- before he decides, he has to know that he has the constitutional right to a jury trial.
03-10198 +++$+++ 661 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
03-10198 +++$+++ 662 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And why wouldn't he also have to have the -- to know that he has the constitutional right to a lawyer to represent him?
03-10198 +++$+++ 663 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's my position Justice
03-10198 +++$+++ 664 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. That has nothing to do with equal protection. It has to do simply with a very common sense rule that we apply in every case, jury trial, et cetera. So all we'd have to say is, of course, he has a right to a lawyer. Now, if he wants to go back and waive that right, fine.
03-10198 +++$+++ 665 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
03-10198 +++$+++ 666 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's all. That's the end of it.
03-10198 +++$+++ 667 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
03-10198 +++$+++ 668 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So what's all this complicated thing about?
03-10198 +++$+++ 669 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If an indigent, after being sentenced, decided for whatever reason I would prefer to go on appeal by myself, which is actually a -- a right this Court rejected in Martinez, that you have a right to represent yourself on appeal, but in Michigan an indigent is allowed to -- would be allowed to represent himself or herself on appeal if they chose to do so. The problem here is that the statute purports to take away the right, and it's our position that this is a --
03-10198 +++$+++ 670 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, no. You'd have to say the statute is wrong in taking away the right.
03-10198 +++$+++ 671 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-10198 +++$+++ 672 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But he can waive it if he wants to, knowing that he has the right.
03-10198 +++$+++ 673 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. We have no problem with a voluntary waiver. We certainly have a problem with a forced waiver saying that you cannot enter a plea which produces tremendous benefits in Michigan, as everywhere else, unless -- unless you agree to waiver --
03-10198 +++$+++ 674 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, but -- but that happens all the time. I mean, the waiver -- waiver of appeal in -- in guilty -- in guilty pleas. That's -- that's not permissible either?
03-10198 +++$+++ 675 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I take no position on that. It may or may not permissible.
03-10198 +++$+++ 676 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you have to if you're going to make the argument you just made.
03-10198 +++$+++ 677 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it's far different because that's something that can be obtained in negotiation. But what we would have --
03-10198 +++$+++ 678 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, Mr. Moran, here on page 22 of the joint appendix, the court is speaking to the defendant and says, you understand if I accept your plea, you are giving up or waiving any claim of an appeal as of right.
03-10198 +++$+++ 679 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-10198 +++$+++ 680 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you think that was not effective?
03-10198 +++$+++ 681 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. That was effective. That -- that's referring to the automatic appeal that he would have if he went to trial where he would have full briefing and oral argument. The Michigan --
03-10198 +++$+++ 682 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I -- it doesn't say that.
03-10198 +++$+++ 683 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it doesn't. This was a -- this was a pretty poor waiver proceeding in a number of -- of respects, but it --
03-10198 +++$+++ 684 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, he does --
03-10198 +++$+++ 685 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm --
03-10198 +++$+++ 686 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- he does go on to say that -- that he can appoint a lawyer for -- in certain instances. He doesn't complete the explanation by saying there are other instances and when I will not appoint one. That he leaves out, although this a represented defendant.
03-10198 +++$+++ 687 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, he was.
03-10198 +++$+++ 688 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He had a counsel at the plea hearing.
03-10198 +++$+++ 689 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He did.
03-10198 +++$+++ 690 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm mixed up again. What is the answer to this? I -- I would have thought that even if those words that Justice O'Connor read referred directly to the kind of appeal that we have in front of us -- in other words, the one that's at issue -- that still he'd have to know he has a right to a lawyer on that appeal before he could waive it.
03-10198 +++$+++ 691 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Breyer, I agree.
03-10198 +++$+++ 692 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And does anybody dispute that?
03-10198 +++$+++ 693 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe --
03-10198 +++$+++ 694 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that at issue here?
03-10198 +++$+++ 695 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I believe the State might dispute that. I'm not sure. What the Michigan constitution does, Justice O'Connor, if I may come back to your question, is it says that for somebody who pleads guilty or nolo contendere, they are giving up the right to the automatic appeal, and they have -- they then have to proceed by the application for leave to appeal. And so the Michigan constitution explicitly still provides a right to appeal, but it changes the method. And so Michigan's appeal, after a guilty plea now, is like the first appeal in several other States, Virginia, West Virginia, and -- and several other States have guilty plea appeals.
03-10198 +++$+++ 696 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's a strange terminology. It doesn't provide a right to appeal. It -- it provides a right to apply for an appeal, a right to ask for an appeal. A right to ask for an appeal is not a right to get an appeal.
03-10198 +++$+++ 697 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's framed in terms of a -- of a right. Page 2 of the brief --
03-10198 +++$+++ 698 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you have an absolute right to ask for an appeal.
03-10198 +++$+++ 699 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-10198 +++$+++ 700 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that's not a right to appeal. It's a right to request an appeal, which can be granted or denied.
03-10198 +++$+++ 701 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-10198 +++$+++ 702 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
03-10198 +++$+++ 703 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it's a -- it's -- what Michigan has done is it has changed the method of the appeal. And so Virginia, for example, has first-tier appeals by petition. West Virginia has a first-tier by petition and --
03-10198 +++$+++ 704 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it's done more than change the method. It's changed the entitlement. The court can simply say we're not interested in your appeal. It doesn't raise a significant legal issue.
03-10198 +++$+++ 705 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Scalia, but that's not how the -- the Michigan Court of Appeals works. The Michigan Court of Appeals is an error-correcting court. And so in Mr. Halbert's case, the Michigan Court of Appeals denied his appeal, after his futile attempt to -- to identify his issues, with an order saying that there was a lack of merit in the grounds presented. That is a preclusive decision on the merits of his case. That --
03-10198 +++$+++ 706 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's just -- but that's just boiler plate, isn't it? That's what they say in all these cases.
03-10198 +++$+++ 707 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-10198 +++$+++ 708 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I think Michigan cites a Michigan Supreme Court decision that says it's not on the merits.
03-10198 +++$+++ 709 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That --
03-10198 +++$+++ 710 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's People v. Berry?
03-10198 +++$+++ 711 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. That was a decision of the Michigan Supreme Court referring to its own orders denying applications for leave to appeal which are not on the merits. The Michigan Supreme Court denies the applications for saying -- by saying, we are not persuaded that we should hear the questions presented.
03-10198 +++$+++ 712 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why wouldn't it be the same if the -- if it's a discretionary appeal at the intermediate appellate level?
03-10198 +++$+++ 713 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the Michigan Court of Appeals, unlike the Michigan Supreme Court, is an error-correcting court. And so it issues orders saying denied for lack of merit. And the Michigan Court of Appeals dozens and dozens of times in the last 25 years has said, without exception, that is a decision on the merits that precludes relitigation under the law of the case doctrine.
03-10198 +++$+++ 714 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Didn't -- didn't the supreme court in the Bulger case -- was that the name of it?
03-10198 +++$+++ 715 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-10198 +++$+++ 716 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Didn't it say that the -- that the intermediate court's denial of -- of appeals was a discretionary judgment?
03-10198 +++$+++ 717 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It called it a discretionary appeal, Justice Scalia, without ever explaining why, and the -- the dissent in Bulger pointed out the Michigan Court of Appeals is an error-correcting court. And in fact, the very author of the --
03-10198 +++$+++ 718 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That was a dissent, though.
03-10198 +++$+++ 719 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, but the very author of the opinion in Bulger, Chief Justice Corrigan, just 1 year later or 2 years later describes the effect of -- of an order denying leave to appeal in the Michigan Court of Appeals, and says it clearly shows they considered and rejected the merits.
03-10198 +++$+++ 720 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, in effect, it's discretionary in the sense that it's discretionary as to whether to give it full-dress treatment, but the bottom line, whether they give it full dress or -- or merely discretionary denial is -- is an implication on the merits.
03-10198 +++$+++ 721 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, exactly as in Virginia. In Jackson v. Virginia, the Court recognized that the -- the Virginia situation is exactly the same, that there is a petition to appeal to the Virginia Court of Appeals, and that each petition is considered on the merits, and a denial of the petition is seen as a decision on the merits that precludes relitigation under the law of the case doctrine. And so Michigan's appeal after a guilt plea now is exactly like the one in Virginia.
03-10198 +++$+++ 722 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that something the intermediate appellate court has said? Have they said that, that -- we have a -- a discretionary appeal, but every -- in every case it's a merits decision? We don't have any decisions that say we are exercising our discretion not to review.
03-10198 +++$+++ 723 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If a -- if a appeal or an application to the Michigan Court of Appeals is filed in the wrong form or is untimely or has some other defect, then the court will occasionally issue an order denying the application for that reason. But for any properly filed application for leave to appeal, the longstanding practice of the Michigan Court of Appeals is to say it is denied for lack of merit in the grounds presented.
03-10198 +++$+++ 724 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ This means, I would presume, that -- that we would -- we would have to give -- our Federal courts on habeas would have to give deference to all decisions of the intermediate court since they're all on the merits.
03-10198 +++$+++ 725 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And they do.
03-10198 +++$+++ 726 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Federal courts do?
03-10198 +++$+++ 727 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-10198 +++$+++ 728 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They assume that all factual and legal arguments have been decided against the -- the person applying for a discretionary appeal?
03-10198 +++$+++ 729 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. After Abela v. Martin in the Sixth Circuit. And there is a -- a whole host of Federal district court decisions in the Eastern and Western District of Michigan all saying that when an order is denied for lack of merit in the grounds presented, the AEDPA standard of review applies. And so the State obtains tremendous benefits from this procedure. They obtain deference on habeas corpus review. They prevent the indigent, if the indigent were to ever get a lawyer at some later stage, from beginning relitigation on State collateral review. And so the State very happily argues for all of those purposes that this is a decision on the merits, but then they come before this Court and they say, oh, no, it's not a decision on the merits. It's really discretionary despite what it says because they are hoping that this Court will conclude that it is a discretionary appeal. In fact, the State --
03-10198 +++$+++ 730 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Moran.
03-10198 +++$+++ 731 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- has made an even more radical argument in its brief. The State maintains that the appeal to the Michigan Court of Appeals is a second-tier appeal, and that is plainly contrary to the -- to the actual function of that court because there is a provision that if trial counsel suddenly realizes in a plea case, after sentencing, that there are issues that she should have raised, it allows her to do that. And so the State now argues that that's really the first-tier appeal, and then the application that follows after that to the Michigan Court of Appeals is a second-tier appeal. I'll just point out that even the State's amicus doesn't agree with that, and -- and rightfully so in light of Swenson v. Bosler, which has rejected an attempt to reorganize by labeling how one's appeals go.
03-10198 +++$+++ 732 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Moran, before your -- your time is up, I did want to know what is your position on -- let's say that there is -- you prevail and there is a right to counsel for these applications to appeal. And if counsel looks at the case and determines that there is no tenable ground for an appeal, could counsel file the equivalent of an Anders brief?
03-10198 +++$+++ 733 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes, Justice Ginsburg, and in fact, I have done that personally. Before I became an academic, I worked at the State Appellate Defender Office in Detroit and was appointed to represent indigents on plea appeals. And in a significant percentage of the cases -- I can't quote you the numbers off the top of my head -- after reviewing the case, the appellate counsel then concludes that there is no merit, that there are no grounds to proceed, that the defendant in fact got whatever it was she bargained for in the plea bargaining, at which point then either a motion to withdraw may be filed or -- or the equivalent, the Michigan equivalent, of an Anders brief. And so that is done in a number of cases. It is our position that that procedure actually helps improve the appellate process in Michigan because without that process, all you have are indigents like Mr. Halbert, a special education student with mental disabilities, trying to identify his own issues and fall -- and filing, in -- in his case, with the help of a fellow prisoner because he could not have done it himself -- the help of a fellow prisoner, an application that is completely incoherent, misses several issues that are right on the face of the record, correctly asserts that his sentencing guidelines were misscored but -- but without explaining why, without even identifying which sentencing guidelines were misscored. And in fact, he received a minimum sentence that was approximately three times too high under the sentencing guidelines. The State concedes that one of the sentencing guidelines was scored in the State's favor erroneously. We concede one of the -- one of the sentencing guidelines was scored in Mr. Halbert's favor erroneously. But then there were two others, and the most important ones, the OV, Offense Variable, 13. That was scored for 25 points in both cases. And so Mr. -- Mr. Halbert, in fact, received a sentence that was much too high. Michigan requires -- Michigan is one of the few States that requires that ineffective assistance of counsel claims be raised on direct appeal or they're lost. And so at that point, Mr. Halbert had to figure out a way to raise an ineffective assistance of counsel hearing, which requires an evidentiary hearing at which trial counsel must be called, assuming trial counsel is still available to be called, all from prison, and there was no possible way he could do that. So it's not very surprising that even with the help of a fellow inmate, that his application for leave to appeal was completely incoherent. The fellow inmate actually did write the -- the trial judge and say we need to have an evidentiary hearing on ineffective assistance of counsel. But under the statute, the judge had no discretion to grant that motion. Under the statute, only if there was already an upward departure from the sentencing guidelines, only then would the judge be required to appoint counsel, and of course, the guidelines, as misscored without objection from defense counsel -- there was no upward departure at that point. If the Court has no further questions, I'd like to reserve the balance of my time.
03-10198 +++$+++ 734 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Very well, Mr. Moran. Mr. Restuccia.
03-10198 +++$+++ 736 +++$+++ FALSE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: I want to start with the factual claim regarding the waiver that the Court identified, pages 22 and 23 from the joint appendix, being the point at which Mr. Halbert, in fact, waived his right to the appointment of appellate counsel. I think Justice Scalia is right in noting that he was told specifically it's under these conditions you'll be appointed a counsel; under these conditions, you might be appointed counsel. From context it's unambiguous that he would otherwise not receive counsel. And what's important is at the joint appendix on page 45, the trial court, in fact, made a factual finding on this point. So in order for this Court to conclude that Mr. Halbert did not waive his right to appellate counsel under the particular circumstances, you would have -- you would have to conclude that the trial court was clearly erroneous in its factual finding.
03-10198 +++$+++ 737 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I mean, wouldn't we have to conclude that if we're going to apply the same standards here that we usually do in -- in the plea waiver situation? I mean, we -- the -- the classic point of it all is the knowing -- the -- the intelligent, voluntary waiver of a known right. And leaving aside the equal protection problem here, even if we didn't have that, I don't see that there would be -- have been an adequate waiver here because he was never told that he had the right that he now claims as a matter of due process. You indeed, dispute it.
03-10198 +++$+++ 738 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-10198 +++$+++ 739 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But unless he were told that, the -- the waiver that -- that depends upon parsing the difference between must and may in the two paragraphs of explanation certainly wouldn't be taken as the predicate for a waiver of a known right.
03-10198 +++$+++ 740 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think that the colloquy makes clear that he does not -- he's not going to have an appeal as of right, and then when told that --
03-10198 +++$+++ 741 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the -- the appeal of his right -- the appeal as of right point, as I understand it, is a different point. What they're getting at there is it will be discretionary with the reviewing court whether your case is reviewed on the merits on some point if you ask for it. We're here dealing with the right to counsel, and it seems to me unless he were told that he had the right to counsel that he claims and he then waived it, that there wouldn't be a -- an -- an adequate waiver under Boykin.
03-10198 +++$+++ 742 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think in -- in context when told that only under these circumstances you're going to receive counsel in bringing discretionary application, that it's clear that he is waiving in his decision to go forward with the -- his plea --
03-10198 +++$+++ 743 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Look, the -- imagine -- I'm just repeating what Justice Souter said. There must be -- it's so obvious that there must be an obvious answer, but I haven't heard the answer. He knows Michigan law or his lawyer does. The Michigan lawyer looks at the statute. It says a defendant who pleads guilty shall not have appellate counsel appointed for review with some exceptions, which they claim are inadequate. So he thinks the law is shall not. I have no right. So he doesn't not only -- not only is he not waiving a known right, there's nothing for him to waive. He has no such right. Now, obviously, when there's nothing for him to waive, how could he waive anything? And obviously, a person who's told, hey, you don't have a right to appeal no matter what and then he says, okay, I waive my right to appeal, I mean, really.
03-10198 +++$+++ 744 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that the -- the -- for the two questions that are asked, he explains -- the court explained to him he didn't have appeal as of right but then said --
03-10198 +++$+++ 745 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay, that's the end of it. Right?
03-10198 +++$+++ 746 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But then -- and then the -- the --
03-10198 +++$+++ 747 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But he had an appeal of right until he pleaded guilty.
03-10198 +++$+++ 748 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
03-10198 +++$+++ 749 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And that's where -- that's what the waiver consists of. To say he didn't have an appeal of right, no. That's -- he had an appeal of right up until the point where he pleads guilty, and that's what -- and that's what the judge is asking.
03-10198 +++$+++ 750 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Precisely.
03-10198 +++$+++ 751 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you want to -- do you want to plead guilty, even though if you plead guilty, you'll get -- you'll get a lawyer only under these circumstances.
03-10198 +++$+++ 752 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Precisely.
03-10198 +++$+++ 753 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The court didn't say only --
03-10198 +++$+++ 754 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that's what we're deciding is --
03-10198 +++$+++ 755 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's the problem.
03-10198 +++$+++ 756 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's exactly the issue in front of us. Is it constitutional or not constitutional? And waiver has nothing to do with it.
03-10198 +++$+++ 757 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that -- I also want to make the point, of course, that there was a factual finding, so if this Court did conclude, it would have to find the trial court was clearly erroneous. The --
03-10198 +++$+++ 758 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Restuccia, the -- we are dealing here, as is not uncommon, with someone who is learning disabled, mentally impaired, and the trial court did not say if you plead, you relinquish your right to counsel in seeking leave to appeal. It said only when -- if this exists, I must, and if that exists, I must, but did not say if you plead, you relinquish your right to counsel in seeking leave to appeal. And I was curious as a matter of what is going on in Michigan trial courts now. Do judges routinely tell defendants who plead guilty -- tell them not only when the court must give them counsel, but if you plead, you relinquish your right to counsel in seeking leave to appeal? Because that --
03-10198 +++$+++ 759 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-10198 +++$+++ 760 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that was never imparted in this case.
03-10198 +++$+++ 761 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The advice concerning right to appeal, the one that was used in the trial court here, was a form from 2000. The -- the 2004 form is available from the Michigan Supreme Court web site, and it has been modified now that -- because the trial court -- it seems apparent that he was reading from the advice concerning right of -- to appeal. The way it reads now is it will say you are not entitled to have a lawyer appointed at public expense to assist you in filing an application for leave to appeal. So this -- this -- the colloquy now would happen differently, but I think that --
03-10198 +++$+++ 762 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Of course, your case is a little stronger than -- than the court just asked -- just saying I must appoint counsel in this circumstance and I must appoint counsel in another circumstance. That might have left open the implication that you could appoint counsel in other circumstances, but the court went on and to say I might appoint counsel in this circumstance and I might appoint counsel in the other circumstance. So if there's any implication from it, the implication is not just that I have -- I have listed all the areas in which I must, but it's also I have listed all the areas in which I either must or even may, if there's an implication.
03-10198 +++$+++ 763 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think -- I think that's right.
03-10198 +++$+++ 764 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, apparently the people who -- who redid the model instructions thought that this would be a clearer one, to tell him up front you don't get counsel if you don't fit under these exceptions.
03-10198 +++$+++ 765 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. And they -- they did -- they did modify the form. So on the question of the underlying constitutionality, I want to -- I want to make a few points, that the -- the threshold question really is whether there's an appeal as of right in Michigan for a plea-based conviction. Michigan law is clear that there is no appeal by right. It's an application process and it's a discretionary review. The Michigan Court of Appeals has no obligation to correct errors in these cases, has no obligation to review the merits.
03-10198 +++$+++ 766 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you agree with your opponent that for AEDPA purposes, they treat the intermediate decision as a decision on the merits?
03-10198 +++$+++ 767 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. The law in the Sixth Circuit is in fact in conflict with a case -- an earlier case, McKenzie v. Smith -- had determined that the -- a decision with that language, that virtually identical language, is not -- is not entitled to deference.
03-10198 +++$+++ 768 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So your opponent has misrepresented Michigan law.
03-10198 +++$+++ 769 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I didn't say -- I wasn't suggesting that. Abela is one case stating one position. McKenzie, an earlier case, stated another position.
03-10198 +++$+++ 770 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But he says there are dozens of cases at the district court level that apply AEDPA in the way he described. Is that wrong?
03-10198 +++$+++ 771 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, he didn't cite those cases. I --
03-10198 +++$+++ 772 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, he didn't, but do you think he's wrong?
03-10198 +++$+++ 773 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I know that our office handles all the habeas -- habeas corpus --
03-10198 +++$+++ 774 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think he's wrong?
03-10198 +++$+++ 775 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think he is wrong. The --
03-10198 +++$+++ 776 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you going on -- on record as saying that Michigan does not and will not, in the United States courts, claim any AEDPA deference as a result of one of these determinations?
03-10198 +++$+++ 777 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Solicitor General made that position clear before the argument -- before this Court in Tesmer v. Kowalski. So we have not been advancing that claim. In fact, we've been advancing a claim --
03-10198 +++$+++ 778 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you have not been -- and -- and Michigan lawyers have not been advancing that claim in the district courts?
03-10198 +++$+++ 779 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- all the habeas petitions are run through the office of the Attorney General, so that the -- when the Solicitor General from the State of Michigan instructed our staff not to advance that claim, that means all habeas cases in Michigan essentially there will be -- that argument will not be advanced.
03-10198 +++$+++ 780 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, so far as you can tell, that's the way it's been.
03-10198 +++$+++ 781 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. That's right. And because there is no appeal as of right under Michigan law, this -- the Douglas case doesn't govern the disposition. Ultimately the -- the controlling is Ross. And the issue then is whether Michigan provides a meaningful access to an indigent defendant who wants to bring an application for leave. That's really the -- I think the heart of the constitutional issue. There are three distinct characteristics of the Michigan system. The -- the nature of the review is discretionary, and I think comparable to the kind of review in Ross that was described by this Court for the North Carolina Supreme Court. Mr. Moran makes a claim that the Michigan Court of Appeals is an error-correcting court. With regard to applications for leave where there is no right to have the merits reviewed, it is not an error-correcting court. In fact, one of the reasons for the legislation in Michigan, the reason the Michigan constitution was changed was because of the heavy volume that the Michigan Court of Appeals was facing. There are 28 judges in the Michigan Court of Appeals, and they produce --
03-10198 +++$+++ 782 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do they all sit together?
03-10198 +++$+++ 783 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. They're panels of three. They issue about 4,000 opinions each year. So each judge is responsible for authoring --
03-10198 +++$+++ 784 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's just one court.
03-10198 +++$+++ 785 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ One court. That's right. So each judge is responsible for authoring between 130-140 opinions, having to join in another 280. So resource allocation is one of the pressing concerns in the Michigan Court of Appeals. The situations in which the court of appeals will grant leave on application are rare. It's -- it's reluctant to grant leave in these cases in part because of the --
03-10198 +++$+++ 786 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then why -- if it's just denying -- or not granting appeal, why does it use the boiler plate, for lack of merit in the grounds presented?
03-10198 +++$+++ 787 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's used that standard order for the last 20 years or longer. The only Michigan Court of Appeals case in -- only published case in an application for leave setting is the Bobenal case cited by the people in our -- the State of Michigan in its brief, in which the Michigan Court of Appeals said there is no -- this is not a determination on the merits. The only published case for Michigan in which there was an application for leave from a plea-based conviction is People v. Berry in which the Michigan Court of Appeals, after initially having denied leave, then in a collateral attack granted leave on the very same issue and said that its original --
03-10198 +++$+++ 788 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why -- sorry. Finish. I just had a -- I wanted to go back to something you said, but I want you to be finished.
03-10198 +++$+++ 789 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Could I ask about grounds presented before we get off this? Is it conceivable that the lack of merit in the grounds presented means lack of merit in the -- in the grounds of application? Is -- is the applicant required to state why this particular appeal is worthy of being entertained?
03-10198 +++$+++ 790 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They're supposed to raise those arguments. I think that's exactly right, that merits can have different meanings, and it can -- it can relate to whether it would justify the resources of the court to examine the underlying merits of the claim. I think that's right. That's one understanding of the -- of the order that's consistent with the way it's been treated by the court of appeals and also, most importantly, by the Michigan constitution, when the people of the State of Michigan said trial-based convictions, there's an appeal as of right. For all other convictions, for plea-based convictions, it would be by leave. The Michigan's Supreme Court, in examining this very question about the nature of review, said that it was discretionary.
03-10198 +++$+++ 791 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What of Mr. -- Mr. Moran's point that this -- whatever the merits are, it counts as law of the case and it's -- it conclusively determines the issues presented?
03-10198 +++$+++ 792 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's not what happened in -- in People -- in the Bobenal case, which was a court of appeals published decision where the order read virtually identical -- identically to this one, and the court of appeals said it could -- would not be bound by its original denial of leave for the lack of merits on the grounds presented and reached the merits of the claim. The same thing happened in -- in the Berry case in which --
03-10198 +++$+++ 793 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that was the same court, though, wasn't it?
03-10198 +++$+++ 794 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-10198 +++$+++ 795 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what -- what about preclusion on other courts?
03-10198 +++$+++ 796 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The --
03-10198 +++$+++ 797 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In litigation in other courts. They -- did -- did they ever say there is no claim or issue preclusion in other courts as a result of -- of our denials?
03-10198 +++$+++ 798 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The court of appeals was only examining its effect on itself, and wasn't examining on subsequent courts.
03-10198 +++$+++ 799 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And any -- any court, I mean, in -- in theory, can -- can revise its own -- its own opinions. But the -- I mean, we look to preclusion really on -- on the effect of the judgment in another court, and I take it they have not ruled on that.
03-10198 +++$+++ 800 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but both -- both opinions, in Bobenal and Berry, the court said it was not a ruling on the merits. In other words, if a subsequent court then said it was a merits determination, it would be inconsistent with the holding from Bobenal and it would be inconsistent with Berry with saying the merits have not been reached.
03-10198 +++$+++ 801 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And they have said the same, you tell us, as to Federal courts.
03-10198 +++$+++ 802 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. The Federal courts have --
03-10198 +++$+++ 803 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I mean, that's another court, and -- and they are not asserting that they've decided on the merits in Federal court.
03-10198 +++$+++ 804 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Federal courts have been ambiguous. In other words, the Abela case -- they said --
03-10198 +++$+++ 805 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm not talking about what the Federal courts have said. I'm talking about what -- what Michigan has said and -- and what the court of -- has the court of appeals spoken on that subject?
03-10198 +++$+++ 806 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. The court of appeals in the Bobenal case said, in fact, examining virtually the identical language of the issue raised here, that this was not a decision on the merits and that it was not itself bound as law of the case because the merits had not been resolved. I think the Bulger case is kind of the paramount case because it is the Michigan Supreme Court conferring the proper legal understanding of the applications for leave, and it said that the nature of the leave is discretionary. I think that fits with common sense understanding because there is no right to have the merits reviewed. Otherwise, it wouldn't make sense to say the application were discretionary if a defendant would have a claim to have any error corrected. Otherwise, he would have a claim on the court of appeals. The court of appeals has full authority to make the determination that even if everything alleged is true, it's not going to correct the error.
03-10198 +++$+++ 807 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Look, this is what I'm -- I'm interested in. It seems like Michigan is unique here. Why not do, if you're worried about resources, what other States have done? You just say, okay, of course, you have a right to an appeal and, of course, you have a lawyer. We'll give it to you if you're poor. But, by the way, if you want to plead guilty, we're not entering into that deal unless you waive it.
03-10198 +++$+++ 808 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that, in a way, Michigan provides a -- a greater protection by enabling itself. What the court of appeals is essentially doing with its review is for the -- for a case where there's a -- an -- an egregious set of facts, it can reach in and grant an application and review it on the merits. It's a -- it's -- it's a kind of a determination about resource allocation, making kind of the hard choices about policy decisions that States have to make.
03-10198 +++$+++ 809 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is this a case where it would meet the standard for granting leave to appeal?
03-10198 +++$+++ 810 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. This -- for -- for Mr. Halbert --
03-10198 +++$+++ 811 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because of the error in scoring?
03-10198 +++$+++ 812 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In fact, anyone who's very familiar with the Michigan guideline system would recognize that Mr. Halbert, if anything, received a break in the scoring of the guidelines. That -- that ultimately the Offense Variable 13 is a very easy answer to why it was properly scored.
03-10198 +++$+++ 813 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You take the position that in fact there was no error in scoring.
03-10198 +++$+++ 814 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. The -- there was no error in scoring. The Offense Variable 13 claim relates to three -- whether the defendant had committed three -- three offenses against a person within the -- within 5 years. Michigan allows a determination based on preponderance even if there was no conviction entered. Mr. Halbert was a serial child molester who admitted to having sexually assaulted his 14-year-old stepdaughter, a 10-year-old girl, a 6-year-old girl. All that information was in the presentence investigation report. There was no objection to the scoring of Offense Variable 13 because he admitted to the sexual assaults. There was -- it was never raised --
03-10198 +++$+++ 815 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought at page 36 of your brief that you agreed that he made a correct -- that there was an error in -- of application.
03-10198 +++$+++ 816 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. The Offense Variable 9 was -- there was an error with respect to that, but it wouldn't affect the ultimate position he would be placed in the -- in the brackets. In fact, the only error that did occur that would have affected the scoring was one in his favor, which would have put him -- put him in a higher bracket. So he in fact --
03-10198 +++$+++ 817 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So there were at least two errors. How they balance out I guess is your view they didn't hurt him at all.
03-10198 +++$+++ 818 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in fact, if anything, helped him. But on a more basic level --
03-10198 +++$+++ 819 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that correct? There were two errors in the --
03-10198 +++$+++ 820 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-10198 +++$+++ 821 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- at least.
03-10198 +++$+++ 822 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-10198 +++$+++ 823 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And he contends there were two more, and that hasn't been resolved.
03-10198 +++$+++ 824 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- that's right, but I -- I think those claims are --
03-10198 +++$+++ 825 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So at -- at least we have to assume that it was not an error-free sentencing proceeding.
03-10198 +++$+++ 826 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Well, more importantly, the kinds of issues at play for the sentencing cases are all like this. They -- they relate to the minimum sentencing. Michigan systems then determine from a maximum -- from a minimum to a maximum which will get a -- a range of time. All the -- these sentencing guideline cases relate to the minimum sentence. For Mr. Halbert as a sex offender, this is really a question about when he will be eligible for release from the Department of Corrections. He's going to be facing 30 years because all the sentences in Michigan are set by the statute. So these oral arguments relating lesser liberty --
03-10198 +++$+++ 827 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask another question? Am I correct in assuming from the order entered on page 43 of the joint appendix that even though there were lots of errors there, the fact that they were not raised until after December 11th would have precluded review at the trial court level?
03-10198 +++$+++ 828 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. His -- the point of the trial court there was that the defendant, if he wanted to withdraw his plea, should have raised that before the sentencing itself because the court has discretion before sentencing to let him out of his plea. After sentencing, he has to show that the plea was invalid. So his time -- he was untimely trying to withdraw his plea because he was concerned about consecutive as against concurrent sentences. In -- in summary, the -- the Michigan system -- the -- with the limited date to the review and the kinds of issues from plea-based convictions that are at issue are not -- are lesser liberty interest questions because they have to do with amount of punishment. The Michigan system extends the relationship of trial counsel to the defendant and asks the trial counsel to raise the motions regarding post-conviction motions which will enable him to have a factual record from which to advance his claims. He's not left to shift for himself, that there is a counsel appointed to identify those meritorious claims --
03-10198 +++$+++ 829 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if the counsel happens to be incompetent, that's the end of the ball game.
03-10198 +++$+++ 830 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that's always the circumstance for a defendant who's bringing a discretionary application where his prior counsel was ineffective, that he can be left to identify the meritorious claims on his own and to make the argument of ineffective assistance of counsel. That's true in Ross as well where your first -- where your first appeal as of right, your -- your appellate counsel is incompetent. You're going to be left to identify those meritorious claims, raise the issue of ineffective assistance of counsel, and to try to avoid procedural bars that you'll be facing. Every system is going to have to draw that line and to say that at some point you're not going to get appointed another attorney. Just because there's access to the system doesn't mean there always has to be another attorney appointed. Otherwise, the point is that you would have to have two attorneys make a review on your case, whereas there is no right to an appeal here that this Court has recognized that ultimately where there -- since there is no right to appeal, that he had an opportunity to have a trial counsel --
03-10198 +++$+++ 831 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, of course, if he had had paid counsel, he would not have had these handicaps.
03-10198 +++$+++ 832 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, that the -- there is some advantage, but that's not the ultimate answer.
03-10198 +++$+++ 833 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Competent paid counsel.
03-10198 +++$+++ 834 +++$+++ TRUE +++$+++ MR. RESTUCCIA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
03-10198 +++$+++ 835 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Restuccia. Mr. Schaerr, we'll hear from you.
03-10198 +++$+++ 837 +++$+++ FALSE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Like the Sixth Circuit's invalidation of this Michigan statute in the Tesmer case, petitioner's attempt to invalidate that statute here runs counter to this Court's longstanding tradition of deference to the people of the individual States and to their legislatures in the design and implementation of their criminal justice systems. As the Court said in Coleman v. Thompson, a case like this is a case about federalism because it involves the respect that Federal courts must pay to States and the States' procedural rules. Respect for the State's choices is especially important here because, as the Court put it in Medina v. California, preventing and dealing with crime is much more the business of the States than it is of the Federal Government. And therefore, the Court said we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. And -- and as to the question of -- of when to provide State-paid counsel, as Justice O'Connor reminded us in Murray v. Giarratano, that's a choice that should be one of legislative choice, especially since it involves difficult policy considerations and the allocation of scarce legal resources.
03-10198 +++$+++ 838 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, I take it that the basic rule that we've followed -- and this is what people are arguing about -- could be a criminal trial or proceeding, plea, something in a trial court.
03-10198 +++$+++ 839 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-10198 +++$+++ 840 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It emerges with a judgment, and then there is going to be the first review. Call it a leave to appeal, call it an appeal, call it whatever you want, but it is the first review. And in those two instances, State, if the defendant is poor, give him a lawyer. That's simple. That's clear. Everybody could understand it. They may not even have a lot of legal arguments. Now, what significant -- what does that prevent a State from doing that it's reasonably important for a State to want to do?
03-10198 +++$+++ 841 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again, Justice Breyer, it's a question of allocating scarce legal resources. If you -- and this case is a perfect example of that. This case is not -- does not involve an appeal as of right. It involves a discretionary appeal, and -- and that's the vast bulk of -- of appeals that are addressed by the -- by the Michigan Court of Appeals. So if you impose here on the State of Michigan an obligation to provide counsel in all of those cases, you are, in essence, forcing the people of Michigan to reallocate their legal resources away from other cases or you're requiring the legislature to increase taxes to pay for that -- to pay for that --
03-10198 +++$+++ 842 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there any other State that's done it the way Michigan has?
03-10198 +++$+++ 843 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe there's another State that's done it exactly the same way. But I -- but I would point out -- and I think this is important, Justice Breyer -- that -- that at least according to the Michigan Supreme Court in the Bulger case, the majority of States don't allow any appeal at all from a plea-based conviction. 21 of them rule it out entirely and expressly, and another 17 effectively rule out appeals from plea-based convictions by -- by allowing prosecutors to impose that -- impose a waiver as a condition of entering into a plea. So -- so the relevant universe for comparison is quite small here. It's really 12 States at most, and -- and Michigan sort of fits within the middle of those States in terms of the amount of resources that it provides and opportunities that it provides.
03-10198 +++$+++ 844 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you saying -- I just want to be clear -- that even if this defendant had had paid counsel, he would not have had any right to appeal to the intermediate court?
03-10198 +++$+++ 845 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. It -- it's discretionary, and that's clear not just -- not just from analysis of the -- of the Michigan courts' opinions, but from the provision of the -- of -- but from the constitutional provision that -- that created this entire controversy, which was added in 1994. It's article I, section 20. And that constitutional provision itself draws a sharp distinction between appeals of right and appeals by leave of court. So even if the Michigan courts wanted to have a system of -- of mandatory appeals, they're now precluded by the Michigan constitution from doing that. And so -- and so clearly, if this Court adheres to the sharp distinction and -- which I think is equally sharp and clear, that this Court has made between -- between appeals of right and discretionary appeals --
03-10198 +++$+++ 846 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's not that -- it's not that sharp because it was -- in Ross, it was the second appeal. So here we have one factor that is like Douglas, Griffin, and one factor that's like Ross. You can't say that it falls in one camp more than the other. This is the first-tier appeal.
03-10198 +++$+++ 847 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I understand, Justice Ginsburg, but -- but that's not the distinction that I understand this Court's decisions draw. Several times since Douglas and Ross, this Court has said that the right to paid counsel addressed in Douglas extends only to the first appeal of right and no further. And that's -- that's Coleman and -- and Finley, among others.
03-10198 +++$+++ 848 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, the question is whether the words, of right, were essential to that statement.
03-10198 +++$+++ 849 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I'm assuming that the Court was being careful in its -- in its choice of words, and I believe it was because that -- that --
03-10198 +++$+++ 850 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because then it wouldn't have needed to include the word first.
03-10198 +++$+++ 851 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry?
03-10198 +++$+++ 852 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But then the word first was redundant, not the words, of right.
03-10198 +++$+++ 853 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't --
03-10198 +++$+++ 854 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You can have two appeals of right --
03-10198 +++$+++ 855 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
03-10198 +++$+++ 856 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- I suppose if you wanted to.
03-10198 +++$+++ 857 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. Now, so -- so the real question here, with regard to the right to paid counsel, is does it make sense to extend what the Court did in Douglas to this new situation. We think it does not. This Court's decisions, Ross and Justice Kennedy's concurrence in -- in Murray, as I recall, draw -- draw a distinction between the removal of barriers that the State imposes to the exercise of litigation rights on the one hand and, on the other hand, subsidizing, affirmatively subsidizing litigation rights And -- and I think this Court's care in distinguishing between appeals of right and discretionary appeals reflects a desire to cabin Douglas and -- and to avoid any further excursions into the area of subsidies. And we think that's a -- we think that's -- we think that's good as a matter of policy for the Court to do that, for one thing --
03-10198 +++$+++ 858 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May -- may I ask you one thing lest we forget it? Is -- is your argument premised on the assumption that a refusal to hear an appeal is -- is not regarded as a determination on the merits and thus preclusive?
03-10198 +++$+++ 859 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't think so. I -- I think that helps the argument. But in fact, there are lots of discretionary appeals or discretionary appellate proceedings that -- that do result in decisions on the merits. This Court, for example, sometimes summarily affirms or reverses on cert, and the fact that the Court does that doesn't create --
03-10198 +++$+++ 860 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, we accept cert before we do that. I thought the question was that the denial of an application for appeal does not have any merits consequence. Wasn't that the question?
03-10198 +++$+++ 861 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, yes.
03-10198 +++$+++ 862 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Does the denial of an application for appeal have any merits consequence?
03-10198 +++$+++ 863 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, as -- if -- if that's the question, I -- I would defer to -- to Michigan counsel --
03-10198 +++$+++ 864 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. But I'm asking whether that's a premise of your argument because the consequences of your argument are going to be very different depending on whether that is the premise or whether it isn't, whether that premise is true or whether it isn't.
03-10198 +++$+++ 865 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think the distinction is -- is not necessarily whether the decisions are on the merits or not. I think the distinction is between appeals of right and -- and appeals that are discretionary.
03-10198 +++$+++ 866 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If it's always on the merits, it's an -- it's an appeal of right, it seems to me. How can you have a -- a discretionary appeal which always decides the merits of the case?
03-10198 +++$+++ 867 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- in -- in fact, I don't think that's what happens in Michigan, and -- and I think the --
03-10198 +++$+++ 868 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So your -- the assumption of your argument is that it is not on the merits. I.e., it is not a merits determination if there's a denial and hence there is no preclusion.
03-10198 +++$+++ 869 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think that's true. Whether it's an assumption of the argument, I'm not -- I'm not so sure.
03-10198 +++$+++ 870 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're talking about a piece of paper, that first piece of paper saying to the appeals court, appeals court, please hear my appeal.
03-10198 +++$+++ 871 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-10198 +++$+++ 872 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And then it lists a whole lot of reasons like a cert petition.
03-10198 +++$+++ 873 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-10198 +++$+++ 874 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And those are likely to do with the merits of the case. I mean, they'll tell all the horrible things that went on. And the question is, is he going to have a lawyer to help him with that piece of paper or not?
03-10198 +++$+++ 875 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
03-10198 +++$+++ 876 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Now -- now, it sounds to me just the kind of thing you'd write if you had an appeal on the merits too. No. It's even harder. Even harder. You've got to convince them to take it.
03-10198 +++$+++ 877 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it is more difficult, but -- but the disparity between --
03-10198 +++$+++ 878 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So why draw that distinction? The piece of paper is the same, even harder to write, needs the lawyer as much, first chance he gets after the trial court. Why draw that distinction?
03-10198 +++$+++ 879 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again, because -- because if you -- if you broaden the right to State-paid counsel, as -- as in Douglas, you're going to require States to -- to reallocate resources to that priority and away from other priorities. Also, if you -- if you subsidize litigation in the name of providing adequate access to courts or meaningful access to courts, then there's going to be a lot of litigation in the lower Federal courts about exactly how much of a subsidy is necessary to reach that standard. And also, if -- and this is particularly important here I think. If you require States to subsidize the exercise of a right that they're not required to provide in the first place, like the right to seek review of a -- of a plea-based conviction, then you give the States a strong incentive to cut back on or eliminate that right altogether. And -- and, you know, who knows? But perhaps that's what's going on in the -- in the trend in the States away from providing this right. Thank you.
03-10198 +++$+++ 880 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Schaerr. Mr. Moran, you have 3 minutes remaining.
03-10198 +++$+++ 882 +++$+++ FALSE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. I have to begin by correcting several misstatements of fact and of Michigan law. First of all, Mr. Schaerr just said that only a dozen States, I believe, allow for appeals from guilty pleas. That's not correct. Every State in the United States currently allows for appeals from guilty plea -- pleas. The Bulger case did say that. They cited a --
03-10198 +++$+++ 883 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Appeals as of right?
03-10198 +++$+++ 884 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not necessarily. As I cited in my brief, a number of States allow for applications or petitions from guilty pleas, but every State has a first- tier direct appeal from guilty pleas. The Bulger -- the Michigan Supreme Court in Bulger cited a -- an article from an Arizona Attorney magazine that was simply incorrect on that. Secondly, on the issue of what is the effect of a order denying leave to appeal for lack of merit on the grounds presented, the State continues to rely on McKenzie v. Smith, an earlier Sixth Circuit opinion, People v. Berry, and Bobenal v. Saginaw Investment. None of those cases uses the phrase, lack of merit on the grounds presented. That phrase does not appear in any of those three cases. The Berry and the Bobenal cases, those are Michigan Court of Appeals cases before 1981. Beginning in 1981, in a series of three cases, People v. Douglas, People v. Hayden, and People v. Wiley, the Michigan Court of Appeals held unambiguously that our orders denying applications or remand orders, in that case, for lack of merit on the grounds presented, was law of the case.
03-10198 +++$+++ 885 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What's the effect of the constitutional provision then?
03-10198 +++$+++ 886 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry? I -- I don't --
03-10198 +++$+++ 887 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If that's so, what is the effect of the constitutional provision that Mr. Schaerr read?
03-10198 +++$+++ 888 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Michigan constitutional provision? It changes the way in which guilty plea appeals proceed. Before 1994, there were other types of appeals that had to proceed by application for leave to appeal, primarily late appeals. If the appeal was filed too late, it had to proceed by application for leave to appeal. In 1994, as a result of the constitutional amendment, guilt plea appeals now have to proceed by application for leave to appeal. That's constitutional. We have no problem with that, and that is the method by which the caseload management problems have been solved. They have been solved.
03-10198 +++$+++ 889 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I -- I -- you -- you have the wrong one. I meant the one that said that applications to the court of appeals are -- are -- require leave to appeal. What's the effect of that?
03-10198 +++$+++ 890 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- I assume you're still referring to article I, section 20 of the Michigan constitution.
03-10198 +++$+++ 891 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. It says that for the court of appeals, you need leave to appeal. I thought they were doing something there. What were they doing?
03-10198 +++$+++ 892 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They were saying that first-tier felony appeals in Michigan following pleas require leave of the court, require an application for leave to appeal, like late appeals from trial cases do. But all of those appeals are still decided on the merits with preclusive effect for law of the case purposes. And the Sixth Circuit specifically dealt with that in -- in the Abela case. McKenzie v. Smith never -- never mentions anything about the lack of merit in the grounds presented. The resource allocations point is simply that not all of these guilty plea appeals are -- lead to full argument and full briefing, and that's fine. Michigan can do that. But what Michigan cannot do, as a result of Ellis and Douglas, is for that first gatekeeping part of the appeal, which is where the court has to decide is there merit in this case, to make the indigent shift for himself. And so in -- in Smith v. Robbins, this Court, specifically referring back to the Ellis case, said that the problem that the Court identified in Ellis and that became part of the constitutional minimum in Douglas, was that the old California procedure did not require -- I see my time is up. Thank you, Mr. Chief Justice.
03-10198 +++$+++ 893 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Moran. The case is submitted.
03-1039 +++$+++ 897 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We will now hear argument in Brown against Payton. Ms. Cortina.
03-1039 +++$+++ 899 +++$+++ FALSE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: In this case, the Ninth Circuit violated AEDPA by reversing the California Supreme Court's decision affirming Payton's 1982 death sentence. The California Supreme Court applied the exact right case, namely Boyde v. California, in the very manner contemplated that -- by that decision when assessing Payton's claim that his jury misunderstood the court's instructions and, in particular, factor (k) so as to unconstitutionally preclude consideration of his mitigating evidence. The California Supreme Court's application of Boyde is precisely the type of good faith application of Federal constitutional law to which AEDPA demands deference. It is manifestly not objectively unreasonable, and this can be demonstrated in three aspects of the decision. The first is that the California Supreme Court recognized Boyde's specific holding that factor (k) facially comported with the Eighth Amendment. The second is --
03-1039 +++$+++ 900 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I thought the holding was that factor (k), standing alone, does -- does not raise a -- does -- does not, standing alone, raise a question of reasonable probability of -- of misunderstanding or misapplication of the law. And that's not what they're claiming here. They're claiming here that there was something much more than (k) standing alone. As I understand it, they're claiming that the difference between this and Boyde and why this is not a standalone kind of case is that the prosecutor deliberately argued or argued law that was in fact wrong and -- and continued to do so even after the court interrupted the argument and that the court never gave an instruction that corrected the erroneous statements of law that the prosecutor had made. So that's -- that's why they're -- they're saying this is not a Boyde situation.
03-1039 +++$+++ 901 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, Boyde has two specific components to its decision, which is, first, what factor (k) means standing alone, and you need to resolve that issue, which California did, in deciding the impact of the prosecutor's misstatements concerning factor (k). So that, first, you start from the premise, as the California Supreme Court did, in following Boyde, that factor (k) facially directed for consideration of Payton's mitigating evidence.
03-1039 +++$+++ 902 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, no, no. The -- the mitigating evidence that Boyde held could be considered without a -- (k) being a bar, was mitigating evidence about the -- the character of the individual prior to or at least up to the moment of the crime. So this is -- this is different kind of evidence, and I -- I mean, this is post-crime evidence. And -- and I don't see that -- that Boyde's holding is so broad as obviously to cover this at all. It might be a -- it would be a -- a closer question if it hadn't been for the prosecutor's argument and the judge's failure to correct it. But even -- even without those elements, there would be a serious question whether Boyde covered this at all.
03-1039 +++$+++ 903 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the -- respectfully I disagree. I believe that the California Supreme Court correctly and -- and reasonably determined that Boyde's holding encompassed Payton's character mitigating -- Payton's mitigating character evidence because the holding in Boyde -- or the issue directly presented by Boyde was whether factor (k) limited consideration to circumstances related to the crime or allowed for non-crime related mitigating evidence in deciding the appropriate penalty.
03-1039 +++$+++ 904 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What do we make of the Chief Justice's clear statement, not once but twice, in Boyde? The prosecutor never suggested that background and character evidence could not be considered. So mustn't we take Boyde with that qualification when we have a case where the prosecutor, indeed, suggested that this information could not be taken into consideration as a mitigating factor?
03-1039 +++$+++ 905 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Ginsburg. First, you must assess factor (k) facially and that's what Boyde did. Then the next question is did the prosecutor's misstatements concerning factor (k) mislead the jury to believe that they could no longer consider Payton's mitigating character evidence. And that would be the second component of Boyde which is a general test for assessing the reasonable likelihood a jury misunderstood the instructions in the context of the proceedings. And the particularly relevant and important inquiry in this case is the California Supreme Court's application of Boyde's reasonable likelihood test in the context of the proceedings.
03-1039 +++$+++ 906 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, do we take -- do we take the case on the assumption that the trial court erred in not giving a curative instruction and in saying, well, this is a matter for the attorneys to argue? You -- you don't argue about what a statute means. That's a question of law. You don't argue that. You can argue the facts, that it's mitigating or not mitigating or that it's extenuating or not extenuating, which is I think how you can interpret a lot of this. But it -- it seems to me that the trial judge does make a mistake when he says, well, well, this is for the -- this is for them to argue when the -- the point of the objection was that there was a misinterpretation of the instruction. That's a legal point.
03-1039 +++$+++ 907 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that is a fact that was expressly considered by the California Supreme Court in appropriately applying Boyde's general test for whether the jury misunderstood the court's instructions and an instruction that facially called for consideration --
03-1039 +++$+++ 908 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not that -- that the jury misunderstood the judge's instruction, that there was no instruction. I mean, the -- the picture that's given here is the defense attorney says, I can use this to mitigate. The prosecutor says this is not legitimate mitigating evidence, and he said that several times. And the judge said, well, you can both argue it, and the judge never instructed the jury. He left it to the prosecutors to argue the law to the jury and for the jury to make that legal determination. It -- it seems to me that that -- that is surely an error. Now, you could still say, well, even so, it was harmless. But -- but I don't think -- can there be any doubt when the judge tells the attorneys, you argue the law to the jury and let the jury decide what the law is?
03-1039 +++$+++ 909 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. There -- there is a reasonable likelihood that the jury did not take the prosecutor's statements so as to preclude consideration of Payton's mitigating evidence because the prosecutor's statements cannot --
03-1039 +++$+++ 910 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, even -- even if -- even if that's argument is -- is on point, just taking your -- your response on its own terms, where do you get a reasonable likelihood?
03-1039 +++$+++ 911 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the prosecutor's statements cannot be construed in a vacuum. You have to look, as Boyde required and as California did, at the context of the entire proceedings. What we're here -- what the jury was doing in Payton was deciding whether Payton should live or die, the sentencing determination.
03-1039 +++$+++ 912 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but let's get specific. You -- you said there isn't a reasonable possibility. Why? Get -- get down to facts. Why isn't there a reasonable possibility?
03-1039 +++$+++ 913 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Why there is not a reasonable likelihood the jury misunderstood?
03-1039 +++$+++ 914 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. The prosecutor stands there and twice says, before the judge interrupts him and after the judge interrupts him -- says, you cannot legally consider this evidence. It does not fall within (k), and the judge never corrects it. Why is there not a -- a reasonable likelihood of -- of jury mistake?
03-1039 +++$+++ 915 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ One, Your Honor, the judge admonished the jury that the prosecutor's statements were that of an advocate, and that --
03-1039 +++$+++ 916 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. Precisely, if I recall -- and you correct me if I'm wrong, but I thought what the judge said was that the prosecutor's statements were -- were not evidence. Of course, they're not evidence. The issue isn't whether they were evidence. They were statements of the law. The judge didn't say anything about whether they were correct or incorrect statements of the law. It seems to me that the judge's response to the objection was totally beside the point.
03-1039 +++$+++ 917 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- nevertheless, the judge's response relegated the prosecutor's statements as to his personal opinion as to that of a -- some -- as -- as -- of -- of -- to argument, which is a statement of an advocate. And the jury, from the time it was empanelled, guilt phase, and through the penalty phase, and at the concluding instructions was repeatedly instructed that they would be getting the instruction on the law from the court. And here --
03-1039 +++$+++ 918 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the court didn't give them an instruction on this contested point.
03-1039 +++$+++ 919 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I respectfully disagree.
03-1039 +++$+++ 920 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ He didn't come out and say, yes, you can consider this under (k). He never said that.
03-1039 +++$+++ 921 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, but (k) says you can consider it under (k).
03-1039 +++$+++ 922 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ (k) says you can consider evidence that -- that goes to the gravity of the crime. I will be candid to say I think you're stretching things about as far as you can stretch, as Boyde held, that -- that character evidence pre and up to the time of the crime can be considered reasonably under that factor. But certainly evidence of what an individual did after the crime is committed does not naturally follow within (k) at all, and I don't know why any juror would consider it unless a judge came out and said flatly you can.
03-1039 +++$+++ 923 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the California Supreme Court reasonably applied Boyde's holding, that factor (k) did call for consideration of character evidence, and that's precisely what Payton presented --
03-1039 +++$+++ 924 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what if we conclude that there was an error here? Is there a harmless error argument that you fall back on?
03-1039 +++$+++ 925 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, there is a harmless error, but before we even get to harmless error, the fact that you disagree with the ultimate conclusion of the California Supreme Court under AEDPA is not sufficient.
03-1039 +++$+++ 926 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask --
03-1039 +++$+++ 927 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The California Supreme Court's decision --
03-1039 +++$+++ 928 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask a question that goes sort of to the beginning? What is your position on whether or not the prosecutor correctly stated the law?
03-1039 +++$+++ 929 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The State concedes, and as the California Supreme Court recognized, the prosecutor misstated the law, but the jury would not --
03-1039 +++$+++ 930 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you also concede he did so deliberately? Do you concede there was prosecutorial misconduct is what I'm really asking.
03-1039 +++$+++ 931 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely not, Your Honor. The prosecutor did not commit misconduct. The prosecutor made a mistake, and the misconduct analysis, which is similar to what Boyde contemplated when they set forth the general standard for assessing whether a jury would misunderstood -- misunderstand an instruction is -- is almost the same when -- when you're analyzing whether the question is prosecutorial misconduct. Boyde sets forth the test for how to assess a misstatement by the prosecutor, and Boyde said that at the first instance, a statement of the prosecutor is not to be considered as having the same force as instructions from the court. And that principle was recognized by the California Supreme Court and reinforced --
03-1039 +++$+++ 932 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That -- that statement went to whether the jury was apt to accept it, not to the question of whether the prosecutor acted improperly.
03-1039 +++$+++ 933 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, Your Honor. The -- in this case, the prosecutor made a mistake. I don't think that there's any evidence to support the conclusion that the prosecutor committed misconduct in this case, particularly --
03-1039 +++$+++ 934 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I -- I can see that a -- a prosecutor could say, you know, this isn't factor (k) evidence, as a way of saying that this evidence is of little weight. He did say at -- at one -- at one time, you have not heard any legal evidence of mitigation, and -- and that -- that's the troublesome part.
03-1039 +++$+++ 935 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the -- the State concedes that the -- the prosecutor did make misstatements, but I think that the bulk -- as you pointed out, the bulk of the prosecutor's argument went to the weight to be attributed to Payton's mitigating evidence, and actually most of the argument by the prosecutor indicating that Payton's evidence didn't mitigate the seriousness of his rape and murder is -- there were similar arguments that were made by the prosecutor in Boyde and which Boyde found were not objectionable. But again, the important scrutiny is that the California Supreme Court evaluated the prosecutor's statements within the correct analytical framework matrix established by Boyde. They considered all the correct principles, the -- the effect of argument of counsel. They considered the instructions, and like Boyde, they found that factor (k) facially directed the consideration --
03-1039 +++$+++ 936 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose -- suppose I were to take the view that it is a violation of clearly established law for a court to allow a prosecutor repeatedly to misstate the law, misinform the jury about what the law is on a life or death question without correcting that misstatement, without saying to the jury, jury, it's not for the prosecutor to argue what the law is. I tell you what the law. If the judge doesn't do that, then that meets any standard of violating clearly established law about which there should be no doubt that when the prosecutor makes a misstatement on a life or death question, it is the judge's obligation to say, jury, he is wrong. You take your instruction from me and here's my instruction. Suppose that's my view of this case. I don't -- Boyde and all these other cases -- it just strikes me that that's clearly wrong. What do I do with that?
03-1039 +++$+++ 937 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you can find that the court was wrong and not like what you did -- what the court did, but the inquiry is whether the jury misunderstood the instructions as a result of the court's conduct. And that requires an analysis of the context of the proceedings, and that is precisely what the California Supreme Court did. They --
03-1039 +++$+++ 938 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, now you're getting to the question I think that Justice O'Connor raised a few minutes ago about are you urging, yes, this is error, but it was harmless?
03-1039 +++$+++ 939 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I am not agreeing that this was error at all. I agree that the prosecutor made a misstatement and that the California Supreme Court thoroughly and properly evaluated that statement --
03-1039 +++$+++ 940 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but just on that point, if the prosecutor makes a misstatement, doesn't the trial judge have an obligation to correct it if it's significant?
03-1039 +++$+++ 941 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- in this case --
03-1039 +++$+++ 942 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or am I wrong? Or am I wrong about that? The judge just kind of watches the ship sail over the waterfall?
03-1039 +++$+++ 943 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- I mean, the -- the trial court did correct it. It may not be the sufficient correction in this Court's eye, but the court did give an admonition that relegated the prosecutor's statements to that of the advocate and not to the instructions of the court.
03-1039 +++$+++ 944 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what if the prosecutor had said several times to the jury during the course of his arguments that the burden of proof by the State is by a preponderance, not beyond a reasonable doubt? And the judge just says the prosecutor's arguments are just that, they're not the law. I'll instruct you. But he never says anything. Is that okay?
03-1039 +++$+++ 945 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's not what we'd optimally want the court to do, but that's not the inquiry that's presented and answered by Boyde. The question is as a result of what happened. Trials are not error-free. We wish that they were, but they're not. The question is how do you respond to when a -- when a prosecutor makes a misstatement of law. And Boyde addresses that question. Boyde --
03-1039 +++$+++ 946 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, normally we would think the trial judge would correct a misstatement of the law by counsel. We would normally think that, wouldn't we?
03-1039 +++$+++ 947 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-1039 +++$+++ 948 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it wasn't clearly done here. I mean, the -- the jury was reminded that arguments of counsel are just that. But there was no attempt to correct what appeared to be a misstatement.
03-1039 +++$+++ 949 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The court's admonition was sufficient. But we're -- we -- we have to respond to the case that's before you.
03-1039 +++$+++ 950 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What -- what admonition was sufficient? The court said something about evidence and everybody -- I mean, there's no question what the prosecutor said isn't evidence. But he didn't tell them he has misstated the law. We're not talking about -- evidence is not at issue at all. Neither side suggests that it is. It's a question is what is the law that governs this controversy, what is the law that the jury must apply to make a life or death decision.
03-1039 +++$+++ 951 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, and what was --
03-1039 +++$+++ 952 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And -- and you --
03-1039 +++$+++ 953 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sorry.
03-1039 +++$+++ 954 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- you said the judge corrected it, and I read this joint appendix. I could not find any correction.
03-1039 +++$+++ 955 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The court's admonition that the prosecutor's argument was not evidence but argument of counsel relegated the statements of the prosecutor to that of an advocate and did not take the prosecutor's arguments and elevate it in place of the instructions given --
03-1039 +++$+++ 956 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then -- then it -- then it has another problem with it because then the judge is saying that's an argument. Jury, you've heard arguments on both sides. You decide. But it isn't for the jury to decide what the law is.
03-1039 +++$+++ 957 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the analysis is whether there was a reasonable likelihood the jury misunderstood the court's instructions so as to preclude consideration of Payton's mitigating evidence, and that --
03-1039 +++$+++ 958 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did the judge instruct the jury that you are to consider all of the evidence which has been received during any part of the trial?
03-1039 +++$+++ 959 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, and actually that's one of the inquiries that Boyde required, is that you look at the instruction itself, the other instructions, and that's an inquiry the California Supreme Court did, in fact, conduct. And that is, the jury was presented with -- with a instruction that said, you shall consider all the evidence unless otherwise instructed, and nothing out of any of the factors (a) through (k) limited the jury's consideration of Payton's mitigating evidence or precluded -- pardon me --
03-1039 +++$+++ 960 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, are you taking the position that as a matter of California procedure, the jury was entitled to consider matters that -- matter that was not within (a) through (k)?
03-1039 +++$+++ 961 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that the instructions encompass the jury considering something not specifically in (a) through (k) for purposes of mitigating evidence because the instructions say, you shall consider the evidence presented, and that was Payton's evidence --
03-1039 +++$+++ 962 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Have the California courts said that?
03-1039 +++$+++ 963 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That?
03-1039 +++$+++ 964 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Have the California courts said that (a) through (k) are -- is not intended to be exhaustive at the pre-Payton -- pardon me. Yes. Have they said that pre-Payton?
03-1039 +++$+++ 965 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that that issue has been presented and decided by the California Supreme Court specifically --
03-1039 +++$+++ 966 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I thought the case was being argued to us -- correct me if I'm wrong -- on -- on the theory that this was factor (k) evidence.
03-1039 +++$+++ 967 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is our position that it -- it does fall within factor (k) evidence, but in deciding whether the -- whether Payton's jury was unconstitutionally precluded from considering the evidence, you look to the -- all the instructions. And when you consider the direction to consider all -- that you shall consider all the evidence and then the concluding instruction --
03-1039 +++$+++ 968 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But Ms. Cortina, the -- the red brief -- maybe it's not accurate. They say the instruction was all the evidence received during any part of the trial in this case, except as you may hereafter be instructed, and then that followed what -- the factor (k) discussion came after that. So would it not have been possible that the jury would have thought except for the following things? Or is there something more that I missed?
03-1039 +++$+++ 969 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The written instruction followed the arguments of counsels. And what -- and so no, there was no instruction after that.
03-1039 +++$+++ 970 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So if they misunderstood the factor (k) instruction, they would have thought they could not consider all the evidence.
03-1039 +++$+++ 971 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There was no reasonable likelihood that they felt that they could not consider Payton's evidence under factor (k), and the California Supreme Court --
03-1039 +++$+++ 972 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if they believed the prosecutor, they would have thought they couldn't.
03-1039 +++$+++ 973 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But there -- but as analyzed by the California Supreme Court, it is not reasonably likely that the jury would have accepted the prosecutor's first few misstatements. And as I was saying, to do so, the jury would have had to --
03-1039 +++$+++ 974 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But all -- all I'm directing my inquiry to is to the significance of the instruction to consider all the evidence. I think it's they could consider all the evidence, except that which may not be admissible, as I now -- or may not be relevant as I shall hereafter instruct you.
03-1039 +++$+++ 975 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ However, nothing in the following instruction says you shall not consider Payton's mitigating evidence.
03-1039 +++$+++ 976 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but the prosecutor said that if you interpret the last instruction properly, you shall not do so.
03-1039 +++$+++ 977 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He said that it didn't fall within factor (k). However, the -- the jury would -- there is no reasonable likelihood and the California Supreme Court was not objectively unreasonable, including -- in concluding that the -- that the jury would have accepted the prosecutor's first few misstatements and chosen to disregard Payton's mitigating evidence because the jury just sat through eight witnesses testifying to Payton's post-crime remorse and rehabilitation. They sat through that without any misstatements by the prosecutor. So they recognized that they had heard this evidence and that it was relevant and that it was subject to consideration. Then they heard the arguments of counsel concerning the weight to be attributed to Payton's mitigating evidence. And although the prosecutor did make the misstatements, his statements were relegated to that of an advocate. And to conclude that the jury would disregard the repeated instructions to follow the -- to take the law from the court and their inevitable, long-held societal beliefs that remorse and rehabilitation are relevant to making an appropriate moral reasoned response in deciding the life or death sentence is not a reasonable conclusion. And we know that the fact -- in fact, that the jury did consider Payton's mitigating evidence by virtue of the questions that the juries -- the jury asked the court during deliberations. The jury asked whether Payton would be eligible for parole and whether any change in the law could retroactively make him eligible for parole. You only get to a consideration of whether -- what the effect is of saving Payton's life, under the California sentencing scheme that was -- existed at that time, if you believe that there's mitigation evidence to consider because California, at the time of Payton's sentencing, instructed the jury that if the aggravating circumstances outweigh the mitigating circumstances, you shall impose death. Their --
03-1039 +++$+++ 978 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They -- they might not have thought that the aggravating circumstances were entitled to -- to great weight. I mean, we don't know how they evaluated the aggravating circumstances.
03-1039 +++$+++ 979 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That might be one reasonable conclusion, but the other reasonable conclusion --
03-1039 +++$+++ 980 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I mean, that -- that is a possible conclusion, and therefore, it doesn't follow from the fact that they raised the question about life without parole that they necessarily had found -- that they were necessarily considering the mitigating evidence.
03-1039 +++$+++ 981 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's a reasonable inference to be made from the questions asked, and that's what you're looking at.
03-1039 +++$+++ 982 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's -- it's one possibility. Isn't that all?
03-1039 +++$+++ 983 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's one reasonable inference, and that's what's the important inquiry, is that the trial -- the California Supreme Court reasonably considered the relevant, pertinent facts and all the applicable law in reaching a decision that Payton's jury was not unconstitutionally precluded from considering his mitigating character evidence. And I think that -- that the California Supreme Court's decision demonstrates that it applied Boyde to the letter faithfully and methodically, and that it -- it considered all the relevant facts and that its decision under these circumstances is manifestly not objectively unreasonable. And that is the requirement, and that is the inquiry that we're here today to resolve. The -- the Ninth Circuit failed to give the appropriate deference to the California Supreme Court's decision in deciding that the penalty should be -- Payton's penalty should be reversed. And the Ninth Circuit instead conflated objectively unreasonable with a determination that it personally felt that there was constitutional error and doesn't respect the distinction recognized in AEDPA between a incorrect decision -- or a correct decision, incorrect decision, unreasonable decision, and the higher threshold of objectively unreasonable. And unless this Court has any further questions, Justice Stevens, I would like to reserve the remainder of my time.
03-1039 +++$+++ 984 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How long did the penalty phase take?
03-1039 +++$+++ 985 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The penalty phase took about a day with eight witnesses.
03-1039 +++$+++ 986 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you. Mr. Gits.
03-1039 +++$+++ 988 +++$+++ FALSE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Stevens, and may it please the Court: I'd like to start off, if I may, by addressing some of the points that were brought up just earlier, and I'd like to indicate to this Court that the California Supreme Court has held that factors (a) through (k) are the exclusive considerations that the jury must encompass in deciding whether or not to impose death or life.
03-1039 +++$+++ 989 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Has factor (k) been supplemented with a CALJIC instruction since Payton?
03-1039 +++$+++ 990 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It has. In 1983, 2 years after Payton's trial, it was supplemented to include all of the mitigating evidence that this Court has indicated the jury is entitled to consider. But what is important --
03-1039 +++$+++ 991 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Excuse me. Do they still call it factor (k) or do they just have a supplemental instruction that follows factor (k)?
03-1039 +++$+++ 992 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's been a couple of years since I've done a death penalty trial, but I think it's still called factor (k). It's just supplemented and changed that way. The second thing is that this Court has indicated some concern over the jury question that was raised first in -- in the State's reply argument. And I need to put the Court, I think, in -- in proper context as to what occurred in -- in that jury question. The case was given to the jury at 11:55 on the date of -- of the determination, and the jury was told to select a foreman. 5 minutes -- they went into the deliberations room. 5 minutes later they came out and went to lunch. They didn't commence their deliberations thereafter until 1 o'clock. At 1:10, they came out with a -- the question that is now before the Court. And I want to suggest to this Court that it is not reasonable to believe that during that 10-minute span of time the jury considered the -- whether or not factor (k) applied.
03-1039 +++$+++ 993 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what was the question?
03-1039 +++$+++ 994 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The question -- there were really two questions. One -- and I'm paraphrasing -- is there any possibility Mr. Payton could be released on parole if we give him life, and the second one is if the law is amended, could that be construed to be retroactively applicable to Mr. Payton. Those were the two questions.
03-1039 +++$+++ 995 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Those don't sound as if they thought his conversion to Christianity made a difference.
03-1039 +++$+++ 996 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think, Your Honor, what the jury articulated is what this Court has seen on many occasions, the jury's concern about does life without possibility mean life without.
03-1039 +++$+++ 997 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
03-1039 +++$+++ 998 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They never went beyond that at this point in time. So what I'm suggesting to this Court is that the short span that they had to write that question, which I agree, given enough time, might permit an inference that they did consider factor (k), isn't applicable in this case.
03-1039 +++$+++ 999 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, an equal inference is they just felt that it was entitled to no weight at all given the horrific nature of this -- of this crime.
03-1039 +++$+++ 1000 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I agree. And my position isn't that -- that the short span of -- you know, assists our position. Our position is that this won't assist this Court in arriving at a decision about whether the jury considered it.
03-1039 +++$+++ 1001 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you have to show there's a reasonable likelihood that the jury might have come to an opposite conclusion.
03-1039 +++$+++ 1002 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. And Boyde teaches that the way to do that is to look at the context of the entire case in conjunction with the -- the instruction that was given in this case. And I want to start out that I -- I agree with the State that the first thing this Court should do is look at the instruction standing alone. And I want to indicate that without reference to the context of the case, the instruction standing alone does not support the inference that Payton's post-crime evidence could be considered. Now, I agree that in the context of the case, the context of the case could change that consideration. For instance, if the court, as this -- some member of this Court already indicated, told the jury that factor (k) is to encompass Payton's evidence, or even if the prosecutor may have said to the jury during his argument, ladies and gentlemen, although it might not seem like Payton's evidence could be considered by you under factor (k), in fact it can, then we would be left with a situation very similar to Boyde where there really is no argument among counsel as to whether or not the evidence could be subsumed under (k). And that, in the context of that case, would permit it.
03-1039 +++$+++ 1003 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, on -- on that point -- and I -- I recognize it's -- it's not nearly as clean as the hypothetical you present -- he did say -- this is the prosecutor. The law in its simplicity is that if the aggravating factors outweigh the mitigating factors, the sentence should be death, and so let's just line these up, and then he talks about the -- the conversion. So there were other parts of his argument that indicated by one interpretation this is not mitigating under special (k) -- under factor (k). But here he does say that you line that up and you weigh one against the other.
03-1039 +++$+++ 1004 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I would respond to that by saying two things. He does say that, but after he says, ladies and gentlemen, I want to address some of -- of Payton's evidence. I'm not suggesting and I'm -- and I don't believe that it applies under factor (k). But then he went on to discuss that evidence. And I agree he did. I certainly can't say he didn't. But -- but the real issue here is what effect likely did that have on the jury, and I -- I'm indicating that -- that given the preliminary -- his preliminary part about it still doesn't apply but I will address it, that is unlikely to give the jury any confidence that that evidence could be considered. So it's not at all a concession that occurred in this case whatsoever.
03-1039 +++$+++ 1005 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, why wouldn't the jury conclude -- why isn't it the most logical conclusion that, gee, the judge had us sit here through eight witnesses and listen to all that and he didn't exclude any part of it, so of course we must consider it because otherwise we wouldn't have been exposed to all of it?
03-1039 +++$+++ 1006 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was a relevant consideration in Boyde and I think a powerful consideration in Boyde and in California v. Brown. Because of the context of this case, it's not relevant here. Once the judge permits both counsel -- one counsel to argue one way and the other counsel to argue the other way, the jury is now being relegated as the -- the finder of the law. In order to evaluate whether or not they could consider that evidence, they had to look at the evidence that was presented.
03-1039 +++$+++ 1007 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, they -- they always have to say whether or not we're going to really weigh this or is it just too tangential, and that's one way of saying, well, this really isn't mitigating. And we know as lawyers that it is mitigating in a sense that is -- that is relevant and that it's there for the jury to give it the weight that it chooses. But jurors say, well, you know, this -- this just is not important is what they're saying.
03-1039 +++$+++ 1008 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, when the prosecutor says this doesn't fall under (k) and the defense attorney says it does fall under (k), all I'm indicating is that the argument that this would be viewed as a charade no longer has any effect. It is now a preliminary thing that the court -- that the jury must look to.
03-1039 +++$+++ 1009 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's a shorthand for saying it doesn't fall under (k) because it just is of so little weight. Now, that's I think how the jury might have interpreted it.
03-1039 +++$+++ 1010 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, they might. But the issue here is whether or not there's a reasonable likelihood that the jury did not consider that, and -- and that's --
03-1039 +++$+++ 1011 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Actually that isn't really the issue. I think -- I find that easy. The harder issue is -- is whether the -- a person who thought about it differently than me, a judge, would have -- be objectively unreasonable. At least for me, that's the hard question. The question you're arguing is not hard.
03-1039 +++$+++ 1012 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I don't think I understand Your Honor.
03-1039 +++$+++ 1013 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, I would perhaps have come to a different conclusion than California Supreme Court on that question, but we can overturn them only if they're objectively unreasonable. And that's -- that's the hard thing because -- for me.
03-1039 +++$+++ 1014 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I -- there is very -- relatively little guidance that we have so far on the AEDPA. I think the -- the cases that do have some relevance are both Wiggins v. Smith and Taylor v. Williams. Wiggins v. Smith dealt with the failure of the State court to actually evaluate evidence that occurred in this case. The California Supreme Court opinion on the issue of whether or not the -- the court properly conducted itself has one sentence, and the sentence says -- and I'm paraphrasing -- something to the effect of the fact that the court refused to adorn factor (k) is not in itself a -- an error. Well, we all, I think, would -- would concur that that's true, but that doesn't address what happened here. It's a complete failure to address an all-encompassing event that happened, something close -- and I have to be careful here -- something close to structural error where the judge gives over the obligation to decide what the law is to the jury. The California Supreme Court not once ever considered that, and there is no reference to them doing anything other than making that one --
03-1039 +++$+++ 1015 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, no, but I mean, that's -- that's really wrong what the judge did. But -- but the -- that -- that's tangential to the question. The question is, is it reasonably likely, if that hadn't occurred, that the jury would have considered the evidence that he was converted? But since it did occur, you know, they -- they didn't consider it. Is it reasonably likely they never considered it? That's -- that's the question. And then I can imagine, for what reason that Justice Ginsburg said, myself sitting in the California Supreme Court and saying, well, they heard the evidence for 2 days or a day, six witnesses, eight witnesses. They're not technicians, the jury. And -- and of course, they considered it. I can imagine that and that's why I'm having -- even though I don't agree with it.
03-1039 +++$+++ 1016 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Considered I agree. They certainly considered the evidence, but they also, if they were following their obligation under the law, they considered whether or not they were entitled to give that any weight under factor (k). That was the primary function that was given to them. So certainly they discussed the evidence, but then did they arrive -- did they go in that room and arrive at a decision that maybe we can't by law consider this evidence? And I think that's the focal point here and that's the thing this Court doesn't know what happened in that jury room.
03-1039 +++$+++ 1017 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Except if they heard so much of the evidence, isn't it unlikely that the jury thought they couldn't consider what they heard?
03-1039 +++$+++ 1018 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The more evidence they hear, the more likely it is I think that human beings are going to consider the evidence. The evidence -- the -- the penalty evidence took place over a 2-day period of time, but I want to indicate that it took place over two half-day periods of time, and that if you put the time together, I think it comes to around 70 pages, which should be substantially less than a half-day altogether. Now, it encompassed eight witnesses, and there was a lot of evidence brought out about post-crime conduct. But it -- it wasn't a massive amount such as there was in Boyde, 400 pages and weeks of testimony. So I think that that's a -- a -- an important consideration too. The -- the Court's concern about whether or not the jury would likely consider that, it seems to me, starts with the -- an examination of -- of factor (k) itself. And -- and I want to indicate that Mr. Payton really didn't start out at the same mark as -- as the State did in its case. The language of factor (k) just doesn't on its face appear to permit consideration of that evidence. And -- and so, therefore, something had to have happened in the trial, we assert, to change that, to make the ambiguous, at least as applied to Payton, evidence of factor (k) applicable so that the jury would reasonably likely consider it. The events that could have happened during the context of that trial didn't happen. In fact, everything happened against the defendant. He starts off with an instruction that's against him that supports, under any natural reading, the prosecutor's language, and then he's buttressed with a prosecutor that given the plain and natural meaning of the language, is going to have a far more compelling position with the jury about whether or not it could be considered. And the -- and the defense attorney's position is really nothing more than an assertion, when he looks at the language itself -- an assertion that it was awkwardly worded. Now -- now, the defense attorney made reference to if this was the kind of evidence -- if I was a juror and I was considering this, I would think this would be important evidence. And the answer to that is of course, it is important evidence, but that's not the question. The question is whether or not it could be considered under (k). He gives -- he, the defense attorney, gives his position that -- that (k) was meant to be a catchall factor and it was meant to consume and take into effect Payton's evidence, but he had nothing to support that. He had no legal position to support it. He was faced with the plain language of the statute that didn't permit him to do that.
03-1039 +++$+++ 1019 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Doesn't it? I mean, it -- it says that -- what's -- what's the exact language of that statute? I just had it here. It's -- it's gravity. It's the --
03-1039 +++$+++ 1020 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is any other circumstance which extenuates the gravity of the crime.
03-1039 +++$+++ 1021 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of the crime. You could say it. Yes, his -- his later conversion extenuated the gravity of the crime, not the -- not the -- when I try to think of this person, who is not me, thinking of that, I say, well, plausible. Plausible, not perhaps the best, but plausible, isn't it?
03-1039 +++$+++ 1022 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, as we pointed out in our brief, this Court in -- in Skipper -- some Justices in -- in that decision indicated that -- well, in fact, the majority indicated that the post-crime evidence of rehabilitation in prison is, in fact, not anything that relates to culpability. Factor (k), however way you look at it -- and I agree that it's sufficiently ambiguous to where, given the right context, the right events happening at trial, a jury would reasonably likely look at it as covering that. But not under this case, though, because there wasn't anything that happened in Payton's trial which permitted a reasonable inference that in fact that evidence should be considered. And as to harmless error, I -- as we pointed out in our brief, it -- under the California statute, which in effect requires that if the aggravating evidence outweighs the mitigating evidence, the jury shall return a verdict of death, if there's no reasonable likelihood that the jury considered factor (k), then in effect Bill Payton was left without any mitigating evidence to be considered by the jury at all. And that means that the jury had to come back with a verdict of death. Now, that brings this Court, once the Court -- if the Court becomes satisfied as to constitutional error, that brings the Court, I think, very closely to -- to this case -- this Court's case in Penry v. Johnson because there the jury will not have had a vehicle in order to give effect to Payton's mitigating evidence. In Penry v. Johnson, in fact, in discussing at least the Eighth Amendment issue, this Court never really even discussed harmless error. It was reversed without any discussion. Now, I don't want to suggest the Court didn't engage in a harmless error --
03-1039 +++$+++ 1023 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I see where you're going, and I -- I see that there's some parallel. The problem in Penry was that the jury -- the jurors had to actually violate their instructions, and you have to escalate your argument a bit before you get to that point.
03-1039 +++$+++ 1024 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I -- I agree. It's not exactly identical, but we're very close to -- to that point in Penry. Beyond that, the prosecutor did argue vociferously that the jury should -- in its determination, should be concerned about whether or not Bill Payton is going to stab the prison guards in the back, in effect, argued dangerousness, which was appropriate. But if the jury -- he also argued that the jury couldn't consider evidence which plainly pointed to his lack of dangerousness, his good adjustment in prison, his conversion to Christianity. So, in effect, the prosecutor was able to argue its side and -- and the jury wasn't able, when you get to the harmless error analysis, to argue its side. And that's what makes this, it seems to me, a very strong showing that -- that harmless error -- that the error in this case is not harmless. It had a clearly important effect.
03-1039 +++$+++ 1025 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it relevant at all? This happened 24 years ago. We're sitting here trying to think of what a jury would have been thinking in a state of the law that's a quarter of a century old and facts -- I don't know what to think. I guess that's just irrelevant?
03-1039 +++$+++ 1026 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's certainly relevant to Bill Payton, and -- and I don't demean the position of the Court. It's not relevant in terms of its impact as to future cases. There are some cases left that are still dealing -- out there, dealing with factor (k). The best our knowledge, we've -- we've done a search and we believe there is about 70 cases dealing with the old, unadorned factor (k), but of those 70 cases, none of them from -- and we haven't reviewed all of them, but of the ones we've reviewed, none of them deal both with Payton's pure post-crime evidence, coupled with the prosecutor's unrelenting position to the Government that they cannot consider that evidence.
03-1039 +++$+++ 1027 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So all this was at a time before Penry was decided.
03-1039 +++$+++ 1028 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is the time before Penry v. Johnson was decided.
03-1039 +++$+++ 1029 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
03-1039 +++$+++ 1030 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is not the time before Penry v. Lynaugh was decided. And when I say --
03-1039 +++$+++ 1031 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which is the Texas -- the Texas -- you know, the ones --
03-1039 +++$+++ 1032 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Both are the Texas case. Both deal with Mr. Penry.
03-1039 +++$+++ 1033 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, one and two.
03-1039 +++$+++ 1034 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1039 +++$+++ 1035 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that --
03-1039 +++$+++ 1036 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. And when I say it was not before that, I'm talking about on the date of the California Supreme Court's decision. At the time of the jury determination, this Court only had -- or that court only had Lockett to make a determination as to whether the evidence could be -- could be considered. And the court made the decision that he thought the -- it could be considered, but then refused to make any adjustments once it became clear that both counsel were going to argue their respective positions on the law. The -- the Court earlier talked about other instructions as impacting upon the -- the context of the case, and those were important considerations in Boyde, especially the observation that the jury was to consider any other evidence presented at either time in the trial. But in the context of this case, Your Honor, it means nothing. As I've indicated, the jury was required to ignore any evidence it heard at either phase of the trial unless it fit within factors (a) through (k). If it didn't fit within there, even though they heard that evidence, they were instructed to ignore it. Beyond that, they were also instructed that the -- that they were to consider the arguments of counsel. Now, being that there was no clear instruction to the jury that they had to consider factor (k) as being relevant evidence, the jury then likely put greater weight on counsel's argument, and that's why it becomes important. So the other instructions, when you put them all together, rather than putting in proper context what did occur in this case, in effect make it even harder for Bill Payton's position that the jury should consider factor (k) to be relevant.
03-1039 +++$+++ 1037 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The -- the prosecutor, at the very end of his closing to the jury, did seem, even if grudgingly with it, to recognize that -- that this evidence was mitigating. I'm looking at page 76 of the joint appendix at the top of the page. He makes the statement, the law is simple. It says aggravating factors outweigh mitigating, and then how do those factors line up? Well, the facts of the case showing the violence, et cetera -- that's on the aggravating side. And then against that, defendant really has nothing except newborn Christianity and the fact that he's 28 years old. So that -- in that final word to the jury, the prosecutor seems to be saying, yes, they have mitigating factors, but they're insubstantial, 28 years old and the claim that he's a newborn Christian.
03-1039 +++$+++ 1038 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It'll be up to this Court to make a determination as to where the prosecutor was going and whether or not this constitutes a concession that -- that the jury could consider the evidence. I -- our position is that viewed as a whole, he did not go to that. Certainly he permitted the jury, and he did address the issue of if the jury does consider that. He premised it by saying, I don't think this is relevant, but if -- and I'm paraphrasing here. But if you think it's relevant, it's still not entitled to weight. If the issue before this Court is whether or not there's a reasonable likelihood that the jury considered that evidence, then given the context of that statement, I don't think the jury can hardly be satisfied that the prosecutor in fact gave in and agreed that Payton's evidence --
03-1039 +++$+++ 1039 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do -- do we have a transcript of that hearing here?
03-1039 +++$+++ 1040 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of what hearing, Your Honor?
03-1039 +++$+++ 1041 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the penalty phase. I mean --
03-1039 +++$+++ 1042 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1039 +++$+++ 1043 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- one way -- if I'm having trouble, I'll just read it.
03-1039 +++$+++ 1044 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is in the -- in the joint appendix, the entire --
03-1039 +++$+++ 1045 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The whole thing.
03-1039 +++$+++ 1046 +++$+++ TRUE +++$+++ MR. GITS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, the entire penalty evidence and all argument and the instructions is in there. And that's -- unless the Court has any additional questions, I have nothing further. Thank you.
03-1039 +++$+++ 1047 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Gits. Ms. Cortina, you have a little over 5 minutes left.
03-1039 +++$+++ 1049 +++$+++ FALSE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, the real inquiry is whether the California Supreme Court's decision was objectively unreasonable. It is not whether there was a reasonable likelihood. And Payton, like the Ninth Circuit -- Payton's counsel --
03-1039 +++$+++ 1050 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Could you help me on that? I thought it was two steps. I thought the question is whether there's a reasonable likelihood that the jury was misled, and then you have to ask whether it was unreasonable for the State supreme court to conclude that there was that reasonable likelihood. Or correct me if I'm wrong.
03-1039 +++$+++ 1051 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is one way of approaching the case, but I think under AEDPA, what you'd look at, which would be the more appropriate way, is how the California Supreme Court analyzed the claim and not first conduct a de novo review about whether there was a reasonable likelihood. I don't think that in the end that there's much difference --
03-1039 +++$+++ 1052 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you can't overturn it on habeas unless there's a reasonable likelihood.
03-1039 +++$+++ 1053 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. That would be -- right. You would have to find that the -- you would have to find an error and one that was objectively -- and then the California Supreme Court objectively unreasonable in not finding the error. This is true. So obviously the reasonable likelihood test is a -- is a relevant inquiry, but it is not the inquiry. And I think that -- that that's what Payton's argument demonstrates and the Ninth Circuit's analysis demonstrates, is that they are effectively equating a decision that the California Supreme Court's conclusion was incorrect with their personal -- in their subjective opinion with a -- with the standard that the decision must be objectively unreasonable. And in this case, the California Supreme Court's decision was manifesting not objectively unreasonable. We know -- we -- we know that objectively unreasonable doesn't have a clear definition. We do have an example of what is objectively unreasonable, and that was cited in Payton's brief and that is a failure to consider particular facts or relevant law. And we know that that didn't occur in this case. The very argument and facts that Payton insists were not considered by the California Supreme Court in applying Boyde -- if not in the majority opinion -- are found within Justice Kennard's dissent. So we have no question that the California Supreme Court identified the correct case and the correct principles within the case and considered all the necessary facts. And that should make this decision subject to deference under AEDPA. This Court last term provided additional guidance on how to assess the range of reasonable judgment through the lens of AEDPA in Yarborough v. Alvarado. And one of the things that the Ninth Circuit and Payton's analysis keeps overlooking is the -- Boyde's specific holding concerning factor (k). And when you analyze the -- the range of reasonable judgment of the California Supreme Court concerning factor (k), the specific rule of factor (k), the -- the range of reasonable judgment was less. The California Supreme Court had little to no leeway to conclude otherwise. Boyde's holding is broad. Boyde held that factor (k) was a broad, catchall mitigation instruction that allowed for any other circumstance that counseled a sentence less than death and specifically found that background and character fell within the ambit of factor (k). And no decision of this Court or the California Supreme Court in analyzing character has ever drawn a distinction between post-crime and pre-crime character evidence --
03-1039 +++$+++ 1054 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There's a footnote in Boyde that seems to draw that distinction.
03-1039 +++$+++ 1055 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The footnote in Boyde actually supports more California's position that factor (k) encompasses any other circumstance that would counsel a sentence less than death as opposed to the Ninth Circuit and Payton's interpretation that factor (k) is limited to the crime. In both the first part of footnote 5, the -- the -- Chief Justice Rehnquist rejects the dissent's argument that the gravity of the crime focused the consideration to the circumstances of the crime. Rather, it allowed the jury to assess the seriousness of what the defendant has done in light of what's the appropriate punishment, and that involves a consideration of the defendant's background and character. And then the last part of footnote 5 expressly recognizes that factor (k) allows for consideration of good character evidence, and good character evidence is only relevant to a decision about whether the person should live or die, not to circumstances related to the crime. And good character evidence under Payton and the Ninth Circuit's interpretation of factor (k) would not and could not, whether it existed pre or post-crime, fall under the meaning of factor (k). So the footnote 5 actually bolsters the ultimate broad interpretation that the California Supreme Court adopted when it applied Boyde -- Boyde's specific holding concerning factor (k) to the analysis of Payton's claim. And although they did, in footnote 5, distinguish the fact that it did not involve post-crime evidence in mitigation, it didn't decide the question. It was simply noting a fact that distinguished the case from Skipper. And -- and AEDPA requires that we follow the holdings of the Court and not dicta. So when we start --
03-1039 +++$+++ 1056 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Ms. -- go ahead and make one more sentence.
03-1039 +++$+++ 1057 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The California Supreme Court's decision was a reasonable application of Boyde and the Ninth Circuit's reversal of it is -- and this Court should --
03-1039 +++$+++ 1058 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I think we understand you.
03-1039 +++$+++ 1059 +++$+++ TRUE +++$+++ MS. CORTINA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly. Thank you. (Laughter.)
03-1039 +++$+++ 1060 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you. The case is submitted.
03-1116 +++$+++ 1064 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We will now hear argument in Granholm against Heald and two related cases. Mr. Bolick.
03-1116 +++$+++ 1066 +++$+++ FALSE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: For 124 years, as state power over alcohol has ebbed and flowed, one principle has remained virtually constant, that states may regulate alcohol by one set of rules, not by two. New York and Michigan consigned out of-state wine, and only out-of-state wine, to the three tier system for closing the market to thousands of small family-run wineries and their customers for the benefit of a liquor distributor oligopoly. Discrimination is the core concern of the Commerce Clause, and it sends a powerful signal that the state is engaged, not in legitimate regulation, but in economic protectionism. The states and the liquor distributors make a sweeping argument that this Court has consistently rejected, that the Twenty-First Amendment creates plenary state authority.
03-1116 +++$+++ 1067 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, under your view, could the three-tier system, itself, be challenged by a New Jersey wholesaler wanting to sell in New York, or a New York wholesaler wanting to sell in New Jersey?
03-1116 +++$+++ 1068 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Kennedy.
03-1116 +++$+++ 1069 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, under your view, the whole three-tier system has to go down?
03-1116 +++$+++ 1070 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Kennedy. So long as the state does not discriminate against out-of-state entities, it is free to, as this Court --
03-1116 +++$+++ 1071 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, under my hypothetical. I don't know exactly how -- the way it works, you have to be a New York wholesaler to sell to a New York retailer. Under your view, a New Jersey wholesaler could sell to a New York retailer.
03-1116 +++$+++ 1072 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is -- or a challenge, as you ask the question, Justice Kennedy, could be mounted to that, under the same theory that we're advocating here. The state may have a different set of defenses that it doesn't have here. But --
03-1116 +++$+++ 1073 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But so far as -- the rationale is the same.
03-1116 +++$+++ 1074 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
03-1116 +++$+++ 1075 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It seems to me that, under your rationale, that that in-state licensing system has to fall if there's a New Jersey wholesaler.
03-1116 +++$+++ 1076 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It has to pass constitutional muster.
03-1116 +++$+++ 1077 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And when you say there is no precedent -- I mean, I think a much more modest claim than you're making, the claim simply that a state cannot discriminate against out-of-state liquor -- i.e., the physical liquid -- which is really more modest and keeps the three-tier effect -- now, your -- that claim, that they couldn't do that, was really what was advanced in Young's Market. I read the briefs in that case. The briefs presented that Court -- you could have written those briefs. And the difficulty for you is, it articulated that more modest version very clearly, made a tremendously strong case, that was not forbidden by Section 2 of the Twenty-First Amendment. And this Court squarely rejected it.
03-1116 +++$+++ 1078 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, Young's Market -- the result in Young's Market was correct --
03-1116 +++$+++ 1079 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The result, I understand, you could put on the basis of there being no discrimination.
03-1116 +++$+++ 1080 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly.
03-1116 +++$+++ 1081 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Reading Justice Brandeis' opinion, I can't believe that that was the basis for his result.
03-1116 +++$+++ 1082 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the cases that followed Young's Market and purported to apply its reasoning took a very sweeping view of the Twenty-First Amendment. The Court began trenching on that very broad view immediately in 1939.
03-1116 +++$+++ 1083 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But why wasn't that broad view appropriate, given the difference between the language of the Wilson Act, which has had the words "to the same extent and in the same manner," and the Webb Kenyon Act, which became the second section of the Twenty First Amendment, leaves out "to the same extent and the same manner." It just says that "alcoholic beverage so that the state can bar importation for delivery of, or use therein, in violation of laws thereof." It doesn't say "nondiscriminatory laws."
03-1116 +++$+++ 1084 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Ginsburg, the -- there was no need for the Webb-Kenyon Act to repeat the language of the Wilson Act. The Wilson Act dealt with the question of discrimination. The Webb-Kenyon Act dealt with questions that arose subsequent to the enactment of the Wilson Act. And as this Court has held in Craig versus --
03-1116 +++$+++ 1085 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, maybe that's the Act, but when they put it in the Constitution, why didn't they adopt the language, "to the same extent and in the same manner"?
03-1116 +++$+++ 1086 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the reason for that is because it was so obvious that the state could not, prior to prohibition, discriminate. It was not only embodied in the Wilson Act, but it was embodied in at least three cases of this Court.
03-1116 +++$+++ 1087 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it was not obvious to the person who at least drafted the Webb-Kenyon in the first instance, because as I -- as I understand it, there was an anti-discrimination provision, and that was then dropped. And do we know why it was dropped?
03-1116 +++$+++ 1088 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was dropped essentially because it was redundant.
03-1116 +++$+++ 1089 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but is that a -- is that on a legislative history record somewhere? Do we know that?
03-1116 +++$+++ 1090 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Souter, that is not expressly on the record. What is on the record, however, is that the Court was aiming -- or, excuse me, the Congress was aiming at specific Supreme Court decisions. There -- and it -- and the one case that was clearest on point on discrimination was Scott versus Donald, applying both the Commerce Clause and the Wilson Act to forbid discrimination. And there was -- there is nothing in the legislative history to indicate that Congress intended to overturn that decision. And as this Court has held in Craig versus Boren, and elsewhere, by enacting the Twenty First Amendment, Congress clearly intended to incorporate both the Wilson Act and the Webb-Kenyon Act and to restore to the states the police power that they had before prohibition. Emphatically, discrimination was not a part of that police power. It was a very accepted context. So, too, is it today. When the -- when the liquor distributors in the states asked this Court to overturn the Bacchus decision and to adopt a plenary view of the Twenty-First Amendment, it is not just asking you to overturn the Bacchus decision; it is asking you to overturn cases starting with the Midcal decision in 1980, the more recent Healy decision, and others, that have held that the core purposes of the Commerce Clause and the Twenty-First Amendment must be harmonized, that the Commerce Clause was never intended to be obliterated. And when you look at the core values of the two clauses, they do not clash. The core purpose of the Commerce Clause is nondiscrimination. The core purpose of the Twenty-First Amendment is temperance. And if you have a discriminatory statute, it sends a very strong signal that, in fact --
03-1116 +++$+++ 1091 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it's not only temperance, but it's control over revenues. Can you tell me, is the -- is there a New York State excise tax on alcohol?
03-1116 +++$+++ 1092 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-1116 +++$+++ 1093 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And is it collected by the wholesaler?
03-1116 +++$+++ 1094 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it is.
03-1116 +++$+++ 1095 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. What is it, ten dollars a gallon, or what?
03-1116 +++$+++ 1096 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's -- it turns out to --
03-1116 +++$+++ 1097 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is it on one --
03-1116 +++$+++ 1098 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a few cents a bottle, yes.
03-1116 +++$+++ 1099 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It is on one --
03-1116 +++$+++ 1100 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's on -- it's -- and all alcohol.
03-1116 +++$+++ 1101 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Under our cases, can the California winery be required to remit the tax to the New York State revenue authorities?
03-1116 +++$+++ 1102 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We believe so, Your Honor.
03-1116 +++$+++ 1103 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is that consistent with Quill?
03-1116 +++$+++ 1104 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is consistent with Quill. The way that the states -- there are 26 states that allow direct interstate shipment of wine, and the FTC has examined their record to see if they are doing okay. And one of the things that they do -- are able to do is tax collection. New Hampshire, Louisiana, and Nevada do collect taxes. The way they do it is by requiring a permit in order to ship wine into the state. That takes care of a number of problems, including all sorts of accountability concerns that the state may raise.
03-1116 +++$+++ 1105 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What --
03-1116 +++$+++ 1106 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under --
03-1116 +++$+++ 1107 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- what do you make of the argument that there's no practical way, except at great expense, to audit compliance if they're out of state?
03-1116 +++$+++ 1108 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, this is one of the most regulated industries in America, of course, and the model legislation that has been adopted by a number of states includes record-keeping provisions, it requires that wineries --
03-1116 +++$+++ 1109 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I will grant that's required, but the argument, as I understand it, is, to find out whether they're doing what they are required to do, you've got to drop in unexpectedly and make an audit. And that's one thing in the state; it's another thing across the country.
03-1116 +++$+++ 1110 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it's important to recognize, Justice Souter, that under the three-tier system, which is -- which is where the states of New York and Michigan are saying that the other state wineries have to go -- the three-tier system does not do that. The states already rely on the Federal Government and the other states to police the wineries.
03-1116 +++$+++ 1111 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you're --
03-1116 +++$+++ 1112 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Should they --
03-1116 +++$+++ 1113 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- saying they are not dropping in to local wineries to do audits, in fact?
03-1116 +++$+++ 1114 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They may, in some instances. It is primarily a federal -- a federal activity.
03-1116 +++$+++ 1115 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What do we have in the record on that?
03-1116 +++$+++ 1116 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is not -- there is not a great deal on the record, either way, on that, Your Honor.
03-1116 +++$+++ 1117 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't know what you mean by "it's primarily a federal activity," that the Federal Government polices compliance with the state tax laws?
03-1116 +++$+++ 1118 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. Under the --
03-1116 +++$+++ 1119 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How does that occur?
03-1116 +++$+++ 1120 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- under the Federal Alcohol Administration Act, any violation of a state law is a federal offense and it is a violation -- so basically, whether it's under-age access, whether it's taxation, whatever --
03-1116 +++$+++ 1121 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But does the federal authority make a routine audit to see that the state tax has been paid?
03-1116 +++$+++ 1122 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Basically, every single time that there is a transaction, it is recorded by the U.S. Trade and Tax Bureau. And if it may please the Court, I'd like to reserve the rest of my time --
03-1116 +++$+++ 1123 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
03-1116 +++$+++ 1124 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- for rebuttal.
03-1116 +++$+++ 1125 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I have just one further question. Justice Kennedy asked you, "What about the wholesaler? What about the retailer?" What about alcoholic beverages other than wine?
03-1116 +++$+++ 1126 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, very important question. We are here today because a majority of states have chosen to regulate wine distinctively. And a handful of them, including Michigan and New York, have chosen to do so in a discriminatory manner. So long as states do not discriminate, in terms of direct shipping with regard to other alcohol -- and they don't; there's a flat prohibition across the United States, in terms of beer and other types of spirits -- we will not be here, because there would be no discrimination; there would be a single rule, and that rule would be, no one gets to do it.
03-1116 +++$+++ 1127 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you.
03-1116 +++$+++ 1128 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Sullivan?
03-1116 +++$+++ 1130 +++$+++ FALSE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: Nothing in today's case, Justice Kennedy, requires you to take on the three-tier system, for the issue that is presented here is a very narrow one.
03-1116 +++$+++ 1131 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it's very narrow, but the rationale is sweeping, and that's why I asked. I just don't know if the in-state licensure system, which is the cornerstone of the three-tier distribution system, can survive under your rationale, assuming the hypothetical where a New Jersey wholesaler has all of the -- you know, the physical facilities and so forth that the New York wholesaler does.
03-1116 +++$+++ 1132 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All that we ask in this case, Justice Kennedy, is that you strike down Michigan and New York's decision to apply the three-tier system to everyone except their own in-state --
03-1116 +++$+++ 1133 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I know, but what --
03-1116 +++$+++ 1134 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- producers of wine --
03-1116 +++$+++ 1135 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- but you're -- all you're asking is for a rationale that's sweeping.
03-1116 +++$+++ 1136 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, in our case, we want to suggest that it is -- just as in Healy and Bacchus -- that a law that discriminates in favor of in-state producers and against out-of-state producers loses its immunity afforded by the Twenty-First Amendment. As Justice Scalia said in concurrence in Healy, a liquor law's discriminatory character eliminates the immunity afforded by the Twenty-First Amendment. It's really the state's position, aided by their wholesaler allies, that it is the sweeping one. Their position is that every state law that regulates the importation of liquor is, per se, valid if it has any conceivable rational connection to a state purpose. So, for example, if Michigan wanted to simply bar all California wines, facially exclude California wines, saying, "There are too many of them, it interferes with"
03-1116 +++$+++ 1137 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Your answer to Justice Kennedy, I glean from what you said, that if New York took away the direct-sale privilege that in-state wineries get, then out-of-state wineries wouldn't be any better off, but they'd have nothing to complain about.
03-1116 +++$+++ 1138 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's exactly correct, Justice Ginsburg. As you've said in the context of gender discrimination, you can cure an equal-protection problem by leveling up or leveling down. In this case, we would suggest that the principle of free trade that was the reason, the principal reason, for the framing of the Constitution and has been reflected in over a century of dormant Commerce Clause jurisprudence, suggests that you should -- the remedy should be to open the markets to out of-state producers --
03-1116 +++$+++ 1139 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But that's a decision for the state to make. I mean, the -- what --
03-1116 +++$+++ 1140 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, Your Honor.
03-1116 +++$+++ 1141 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Not for this Court.
03-1116 +++$+++ 1142 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
03-1116 +++$+++ 1143 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't deny that a state -- that Michigan could bar all out-of-state wine -- not just -- not just California, but they could bar all out-of-state wines?
03-1116 +++$+++ 1144 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Justice Stevens, if it were in aid, and only if it were in aid, of the states -- and necessary to serve the state's internal purposes.
03-1116 +++$+++ 1145 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The only reason being given to give a monopoly to local producers, that's their --
03-1116 +++$+++ 1146 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
03-1116 +++$+++ 1147 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- whole purpose. But could they do that?
03-1116 +++$+++ 1148 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The state can have a monopoly if it's, itself, a market participant. What the state may --
03-1116 +++$+++ 1149 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I'm saying just to look at the -- just limit to the market to -- the only market participants would be Michigan wine --
03-1116 +++$+++ 1150 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Private --
03-1116 +++$+++ 1151 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- wineries.
03-1116 +++$+++ 1152 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, a state may not discriminate against out-of-staters for the sole purpose of economic protectionism.
03-1116 +++$+++ 1153 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I'm trying to think of what Brandeis could have been thinking.
03-1116 +++$+++ 1154 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In Young's Market.
03-1116 +++$+++ 1155 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, that's right. And this is a reconstruction, because I have no doubt, and you have no doubt, that Section 2 was meant to end that part of the dormant Commerce Clause that would come under the name of original package doctrine --
03-1116 +++$+++ 1156 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
03-1116 +++$+++ 1157 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- which meant that the foreign liquor has to be treated better than domestic liquor. Now, he's thinking, "Why is that? What is that package doctrine?" And the answer is, the dormant Commerce Clause -- it's part of the dormant Commerce Clause -- the dormant Commerce Clause is the implication from the existence of the commerce power in the Constitution. So if we have an amendment that says "that aspect of the dormant Commerce Clause doesn't apply," that means the dormant Commerce Clause doesn't apply, because you can't divide the dormant Commerce Clause into six different parts, or even two.
03-1116 +++$+++ 1158 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But Justice --
03-1116 +++$+++ 1159 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now, maybe -- I think that's how he's reasoning.
03-1116 +++$+++ 1160 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
03-1116 +++$+++ 1161 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And if he is, and even if he isn't, why isn't that right?
03-1116 +++$+++ 1162 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, the Young's Market language permitting state discrimination is, indeed, broad, but it's been superceded by 40 years of this Court's jurisprudence harmonizing the Twenty-First Amendment with the rest of the Constitution. Remember, Justice Brandeis, in Young's Market, didn't even think the Equal Protection Clause applied to liquor imports, a position that's inconsistent with Craig against Boren. And nobody would suggest today that equal protection permits a state to import only from male-owned wineries or only import wine from white-owned wineries. So there -- the 40 years of jurisprudence --
03-1116 +++$+++ 1163 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But Craig against Boren was --
03-1116 +++$+++ 1164 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- has been --
03-1116 +++$+++ 1165 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- had nothing to do with the Commerce Clause.
03-1116 +++$+++ 1166 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, Your Honor, but if -- if there were a law -- the states are claiming that any law governing --
03-1116 +++$+++ 1167 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Nothing to do with importation, either.
03-1116 +++$+++ 1168 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the dormant Commerce Clause reflects a fundamental structural principle that is every bit as much a part of the Constitution as the Equal Protection Clause upheld in Craig v. Boren. Indeed this Court, in cases from McCulloch to the Eleventh Amendment cases and state sovereignty cases, has recognized that a principle of the Constitution is no less fundamental because it is a structural implication of the text. So the dormant Commerce Clause stands on the same footing as the affirmative power of Congress and on -- it's the same footing as the Equal Protection Clause at issue --
03-1116 +++$+++ 1169 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think Congress --
03-1116 +++$+++ 1170 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in Craig v. Boren --
03-1116 +++$+++ 1171 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- could enact a statute authorizing the states to do just what they've done here?
03-1116 +++$+++ 1172 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, but it has not. And the Wilson Act -- to go back to Justice Souter's question and Justice Ginsburg's question -- Congress could authorize it as it has done, for example, in the McCarran Ferguson Act, allowing the states to discriminate against out-of-state industry with respect to the industry of insurance. It has not done so here. Webb-Kenyon did not authorize discrimination, and the Wilson Act forbade discrimination for just -- reasons Justice Ginsburg described. It said you may regulate imports of liquor in the same manner as local liquor laws. And, of course, the purpose of Section 2 was to allow to the dry states to keep dry by preventing all those original packages from piling up in the railway stations and being open to bootleggers throughout the state, undermining the dry policies of the state. Wilson forbade discrimination. Web Kenyan didn't authorize it. And in Congress' most recent articulation of its view of the harmony between the Twenty-First Amendment and the rest of the Constitution, the Twenty-First Amendment Enforcement Act, passed in 2000, enacted in 2000, Congress has a rules-of-construction section that says, "We view any state plea to the federal courts to enforce their laws as reflecting the jurisprudence of this court." And, in fact, floor debate on that rules-of-construction section reflected allusions to Bacchus, Healy, and the other cases that said dormant commerce -- the negative implications of the Commerce Clause, no less than the Equal Protection Clause or the Due Process Clause or the Establishment Clause, constrain the states in their regulation of importation of liquor. So with all respect to Justice Brandeis, Justice Breyer, the Young's Market statements about discrimination have been superceded. What New York and Michigan have done here is say that one set of exceptions apply only to in-state producers, just as Connecticut, in Healy, said, "If you just sell beer within our state, you don't have to face price ceilings that you have to face if you do business over in Massachusetts or Rhode Island." Just as in Bacchus, the -- you struck down a decision -- an excise tax exemption that said, "If you're an importer of liquor, you have to pay an excise tax, but if you're a local producer of locally produced wine and spirits, you get out of that restriction."
03-1116 +++$+++ 1173 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay, we've got one difference from Bacchus, because the claim that's being made here, which I gather was not made, or made seriously, in Bacchus, is there really is a need for differential treatment for purposes of enforcement. Go back to the enforcement of the tax law.
03-1116 +++$+++ 1174 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice --
03-1116 +++$+++ 1175 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How are we supposed -- what standard are we supposed to use to judge that argument? And, by that standard, how good is the argument?
03-1116 +++$+++ 1176 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, we believe the standard should be strict scrutiny, though there must be a necessity to serve --
03-1116 +++$+++ 1177 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Because --
03-1116 +++$+++ 1178 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- a legitimate --
03-1116 +++$+++ 1179 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- it's facial discrimination.
03-1116 +++$+++ 1180 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because it's facial discrimination. It's absolutely undisputed. Michigan -- in fact, Michigan state concedes that they have flatly banned out-of-state wineries from shipping directly to consumers. There's no question that this is facially discriminatory. But even if the standard were a more deferential one in which all the state needed to show was a reasonable need for discrimination, it can't come close to doing that here. Neither Michigan nor New York has shown that the facial discrimination here is necessary to protect minors or to protect the collection of taxes. Let's start with minors. The Michigan claim that it's protecting against under-18 sales is belied by the fact that Michigan is allowing 40 Michigan wineries and, at last count, 7500 Michigan retailers to deliver directly to consumers. The way to protect my -- so just as in Craig v. Boren, the exception for young women to drink 3.2 beer, as opposed to young men, belied the state's interest in temperance. So the pattern of exceptions here that Michigan has created belies any notion that it's protecting under-18-year-olds from drinking. And, of course --
03-1116 +++$+++ 1181 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But what about audits for revenue --
03-1116 +++$+++ 1182 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ On revenue, the nondiscriminatory means that's available to the state that Michigan and New York have not shown any reason to reject -- 26 states have adopted some version of this -- is to require an out-of-state winery to get a permit. And that's a -- Justice Breyer, one thing that's still left of Brandeis. You can require a permit from an out-of-state winery, which would be unusual to acquire from widgets or milk. But you can require a permit, and, as a condition of the permit, Justice Souter. The out-of-state winery has to agree to submit to the state's jurisdiction, to submit to the state's tax jurisdiction. And, Justice Kennedy, whether or not Quill would permit taxation if you were simply sending by common carrier, our clients want to -- want to pay taxes, want to sign up for permits, want to play on a --
03-1116 +++$+++ 1183 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well --
03-1116 +++$+++ 1184 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- level playing field --
03-1116 +++$+++ 1185 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- well, they do today, I'm sure, but -- [Laughter.]
03-1116 +++$+++ 1186 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Justice Souter, to -- look at the experience --
03-1116 +++$+++ 1187 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ They -- you say they don't want to go to California to do an audit.
03-1116 +++$+++ 1188 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They certainly don't, Justice Souter, but New Hampshire is a state that has actually -- your own state is a state that has on its Web site a set of out-of-state wineries. It requires that they keep and supply sales records on a monthly basis, that they keep those records for three years --
03-1116 +++$+++ 1189 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Maybe we're getting ripped off.
03-1116 +++$+++ 1190 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- [Laughter.]
03-1116 +++$+++ 1191 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- think New Hampshire's done very well collecting taxes from out-of-state producers, Justice Souter. It's a leader --
03-1116 +++$+++ 1192 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Ms. Sullivan --
03-1116 +++$+++ 1193 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in the field.
03-1116 +++$+++ 1194 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- may I -- may I -- I just want to clarify one point. It was just -- the question Justice Stevens asked. It's your position that if Michigan allows Michigan wines to be sold and possessed and consumed, that it must also allow out-of-state wine to be sold, possessed, and consumed. Would --
03-1116 +++$+++ 1195 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
03-1116 +++$+++ 1196 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That is your --
03-1116 +++$+++ 1197 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Justice Kennedy. But to go back to the physical-presence question, Justice Souter, Michigan is not now -- Michigan officials are not now traipsing up to the upper peninsula and all around the state to inspect wineries. The record is clear on that. What Michigan does is require that wineries in Michigan send samples and records to their offices. And the Internet actually, if anything -- the states say that the Internet increases the danger, but the Internet also increases, in parallel, the power of the states to police out-of-state wineries without an in-state presence. Just as, Justice Stevens, the Internet may make every speaker with a PC a town crier, as you said --
03-1116 +++$+++ 1198 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Could --
03-1116 +++$+++ 1199 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in Reno versus ACLU --
03-1116 +++$+++ 1200 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- could a state --
03-1116 +++$+++ 1201 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- so it makes every interstate --
03-1116 +++$+++ 1202 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- could a state require an out-of-state winery to keep its books online, subject to a password, so that, with a password, they could go in and audit the books across the country, by wire?
03-1116 +++$+++ 1203 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Souter, if it were part of a -- an agreement to a permit that the -- that the out-of-state winery is willing to make, then there's no extraterritorial regulation there, that would be just fine. So, yes, the state can, through Internet, so to speak, -- Internet monitoring, through virtual monitoring -- do all the work it needs to do to make sure that the out-of-state winery is paying taxes. And, by the way, Michigan does not collect taxes, Justice Kennedy, through the distributors. Michigan collects taxes from the wineries, whether they're in-state or whether they're out-of-state wine shippers. So Michigan can give no justification for why out-of-state wineries have to go through the distributors for tax purposes. They're not using the distributors as their tax-collection agents now.
03-1116 +++$+++ 1204 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Commerce Clause, in effect, protects consumers in states from entrenched business interests that want to have protectionism, and you're -- you object to that and invoke the Commerce Clause to do it. Under that rationale, aren't all the California reciprocity laws invalid, as well?
03-1116 +++$+++ 1205 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, reciprocity laws -- yet -- possibly. They may be a necessary requirement now that so many states are closed to states. They may be a necessary mechanism for some states trying to get wines to market in the way that the framers envisaged. It may be a necessary, for now, to get into closed states. In a world that we hope that you create, in which discrimination is not allowed, they would be completely unnecessary and possibly unconstitutional. But to return to the key point here, Michigan and New York may not facially discriminate in favor of their own producers unless they can show that reasonable nondiscriminatory alternatives are unavailable. And here, Justice Souter, on any standard of heightened scrutiny, they have not come close to making that kind of showing, because there are all these other means -- means that have been recognized by the 26 states that don't discriminate, means that have been proven in states from New Hampshire to Virginia, means that are not based on facial discrimination. It's the discrimination that has to be shown to --
03-1116 +++$+++ 1206 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me just --
03-1116 +++$+++ 1207 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- be necessary here.
03-1116 +++$+++ 1208 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- be sure I heard your answer to Justice Kennedy correctly. You'd concede that the reciprocity laws are all unconstitutional?
03-1116 +++$+++ 1209 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not -- they are subject to heightened scrutiny because they discriminate against out of-staters in a way that you could not -- for example, in New Energy, you said that you can't have a preference for -- you can't have a discrimination in Ohio in reciprocity for Indiana. Reciprocity laws normally do violate the principle of dormant Commerce Clause invalidation.
03-1116 +++$+++ 1210 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you contend that they do -- the liquor reciprocity laws, all of them are unconstitutional.
03-1116 +++$+++ 1211 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not -- we contend that they would be subject to strict scrutiny, and they could be upheld if the state could show that they are closely tailored in a --
03-1116 +++$+++ 1212 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They can -- that they can be --
03-1116 +++$+++ 1213 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- way that these laws are not.
03-1116 +++$+++ 1214 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- upheld by making a showing that you say is virtually impossible to make.
03-1116 +++$+++ 1215 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that's not before, and if there were other reasons --
03-1116 +++$+++ 1216 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but I think it is --
03-1116 +++$+++ 1217 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the state could -- [Laughter.]
03-1116 +++$+++ 1218 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- it is an interesting question as to whether that's a -- that's a -- you know, that's a necessary consequence of this decision, in your view. you to reach the question of whether there are other state defenses in other cases. The justifications the states have given here are so terribly weak in relation to their discriminatory laws that you should strike down these laws, you should invalidate them, you should affirm the judgement of the Sixth Circuit and reverse the judgements of the Second Circuit. Thank you very much.
03-1116 +++$+++ 1219 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Sullivan. Mr. Casey.
03-1116 +++$+++ 1221 +++$+++ FALSE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: For more than 70 years, the Twenty-First Amendment has permitted states to restrict the importation and delivery of alcohol by out-of-state vendors. There are substantial differences between licensed in-state vendors of alcohol and out-of-state vendors that are not subject to the full extent of state regulatory and taxing powers. Because of those differences, Michigan requires that sales, including direct shipment of alcohol, be performed only by licensed, strictly regulated, in-state vendors. This importation regulation is a power expressly conferred by the text of the Twenty-First Amendment. It's consistent with the entire history of alcohol regulation in this country, and it's consistent with this Court's jurisprudence interpreting the Twenty-First Amendment --
03-1116 +++$+++ 1222 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now the Bacchus case cuts against you, to some extent.
03-1116 +++$+++ 1223 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Bacchus case was a very unique situation that we believe is not in any way controlling in the present case. It was not an importation case; it was an exemption from a state excise tax on wholesalers for alcohol that was already within the state's stream of commerce.
03-1116 +++$+++ 1224 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but I think what's fairly implied in Justice O'Connor's question, you have to look at the language of Bacchus, and the language of Bacchus, in effect, restored the anti-discrimination component of the Commerce Clause to liquor control. I think that's a fair and necessary reading of the case. Now --
03-1116 +++$+++ 1225 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I disagree that that is a necessary reading --
03-1116 +++$+++ 1226 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And I know it --
03-1116 +++$+++ 1227 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of the case.
03-1116 +++$+++ 1228 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- involved pineapple wine and all that. I know that, but -- [Laughter.]
03-1116 +++$+++ 1229 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- what we're talking about is the language of the Court in that case.
03-1116 +++$+++ 1230 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct, but you're -- you have to understand that language in light of the actual context. There, the state did not even assert a Twenty-First Amendment defense.
03-1116 +++$+++ 1231 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, then you have to understand Young in the light of its context, where there was no discrimination --
03-1116 +++$+++ 1232 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There was discrimination in Young, Your Honor, and I'd like to get to that. But to focus on Bacchus for a moment, the state never asserted the Twenty First amendment, and it was undisputed --
03-1116 +++$+++ 1233 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but the question was before the Court, because the dissent certainly raised the question.
03-1116 +++$+++ 1234 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct. And we have suggested, in our brief, that the Bacchus case is distinguishable and not controlling here. We have also suggested that Bacchus was incorrectly decided. We can prevail in this case without overruling Bacchus, but we have suggested that --
03-1116 +++$+++ 1235 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why don't you focus on that? Because it's a little hard to plan on overruling that case. [Laughter.]
03-1116 +++$+++ 1236 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
03-1116 +++$+++ 1237 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So why don't you at least address how you would distinguish Bacchus? Because there is a lot of language in there that cuts against your position.
03-1116 +++$+++ 1238 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The only justification for the statute in Bacchus was what the Court characterized as "mere protectionism." That's not the situation with the Michigan statute. Again, the Michigan statute involves the paradigm -- or the quintessential Twenty-First Amendment power of regulating importation; it's not an -- attacks on alcohol that's already an exemption from a tax for two particular products.
03-1116 +++$+++ 1239 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, no -- I mean, that --
03-1116 +++$+++ 1240 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Do you --
03-1116 +++$+++ 1241 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that rather lengthy statement you made earlier, that the Bacchus case didn't involve the importation of alcohol. But it did. I mean, the only reason that the in-state exemption was held to be unconstitutional was because you were treating out-of-state sellers differently. How can you possibly say that --
03-1116 +++$+++ 1242 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was treating --
03-1116 +++$+++ 1243 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the case didn't involve it?
03-1116 +++$+++ 1244 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- it was treating two particular items of in-state production differently than all other in-state items and out-of-state items; but it was a taxation issue, not an importation issue. And as the Court said in Bacchus and in Capital Cities, the correct analysis in the -- in evaluating this kind of case is to determine, first, whether the activity of the regulation at issue is an exercise of a power conferred by the Twenty-First Amendment --
03-1116 +++$+++ 1245 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, why don't we focus on the Court's rationale, which was stated very concisely by Justice White. He said, "Hawaii's discriminatory tax cannot stand." And then he said, "Whatever you can say about the Twenty-First Amendment, one thing is certain, the central purpose was not to empower the states to favor local liquor industries by erecting barriers to competition." That was this Court's explanation for ruling the way it did, even though there was this infant industry of pineapple whatever.
03-1116 +++$+++ 1246 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That was the first stage of the Court's analysis. The Court went on to say it was not supported by any clear concern of the Twenty-First Amendment in combating the evils of an unrestricted traffic in liquor --
03-1116 +++$+++ 1247 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, your opponents have said that there isn't any clear countervailing interest here. They're saying you can't claim you're protecting kids, because you're selling to the kids at home; there's no serious audit-collection problem; and the other regulatory interests -- they didn't say this, but are, sort of, gauzy the way they're stated. I mean, they're saying that, by a process of elimination, what you get down to is nothing but discrimination and protectionism. What is -- what is your answer to that? Where is --
03-1116 +++$+++ 1248 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We --
03-1116 +++$+++ 1249 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the substantial interest?
03-1116 +++$+++ 1250 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- we disagree wholeheartedly with that. The Michigan --
03-1116 +++$+++ 1251 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I know, but --
03-1116 +++$+++ 1252 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the Michigan regulations do promote the state's interest in temperance. They do give the state a better --
03-1116 +++$+++ 1253 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you -- I mean, you say that, but how? The very activity that you don't want them to engage in, you're engaging in, or your local wineries are engaging in, for example.
03-1116 +++$+++ 1254 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the key is, with an in-state licensee, the state has the ability to enforce against that licensee, to inspect, to punish the licensee --
03-1116 +++$+++ 1255 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do we --
03-1116 +++$+++ 1256 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to hold them accountable.
03-1116 +++$+++ 1257 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- do we have a record of what the state is doing with respect to its in-state licensees, indicating what it could not do effectively to out-of- staters? What do we have in the record?
03-1116 +++$+++ 1258 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The record in this case consisted of a small number of affidavits, answers to interrogatories, some surveys that were submitted as exhibits to motions for summary judgement. Both sides submitted that type of evidence. The District Court decided this was a question of law, and specifically said that he did not consider any of the factual evidence. So the record --
03-1116 +++$+++ 1259 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, should --
03-1116 +++$+++ 1260 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- was not fully developed.
03-1116 +++$+++ 1261 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- should we send it back for -- if we disagree with the rationale, should one or the other of these cases go back for evidence on what, in fact, the state is doing in relation to its in-state licensees and evidence that it could not effectively do the same with respect to out-of-staters?
03-1116 +++$+++ 1262 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, if --
03-1116 +++$+++ 1263 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And what would you show? What do you, in effect -- make an offer of proof.
03-1116 +++$+++ 1264 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would show that the Michigan requirement limiting sales and direct shipping to in-state licensees is required because the state only has effective enforcement authority over in-state licensees. But --
03-1116 +++$+++ 1265 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but wait a minute. You -- it was suggested that the state could require a license of an out-of-state supplier, and that that license could be conditioned upon submission to Michigan's jurisdiction in all respects. Is that not feasible?
03-1116 +++$+++ 1266 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Michigan does have a current license for out-state seller of wine. You know, these players --
03-1116 +++$+++ 1267 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But could you not require submission to --
03-1116 +++$+++ 1268 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We --
03-1116 +++$+++ 1269 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- Michigan's jurisdiction for all purposes of enforcement?
03-1116 +++$+++ 1270 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly, we could pass a law to that effect. The problem is --
03-1116 +++$+++ 1271 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And if you -- if you did that, could you require, as I suggested of Counsel on the other side, that you -- that, as a condition of the licensing, that the business records of these companies be placed in some secure online fashion, that, with a password, you could get into and do an audit across the continent just as readily as you could do an audit next door? Could Michigan not do that?
03-1116 +++$+++ 1272 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But there is no guarantee that such an audit would be just the same as an audit of an in-state --
03-1116 +++$+++ 1273 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, let me ask, once we accept the proposition -- I think this is the necessary reading of Bacchus -- that the Commerce Clause applies to liquor and prevents discrimination, it seems to me it's just like any other commodity -- food, milk, et cetera -- and, in this case, you have a very substantial burden to show that this discriminatory treatment is justified -- maybe strict scrutiny, maybe heightened scrutiny. And this trial has occurred. You have had that opportunity. I don't see why you have a right to go back.
03-1116 +++$+++ 1274 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Despite the lack of evidence in the record and the fact that District Court did not consider that evidence, the Sixth Circuit dismissed all of those claims of the state and remanded for entry of judgement on the Plaintiffs without giving us an opportunity to develop that record. I also want to say --
03-1116 +++$+++ 1275 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ See, I don't -- I don't understand. Didn't you have an opportunity to develop the record? I mean, this was --
03-1116 +++$+++ 1276 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There was --
03-1116 +++$+++ 1277 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- a discriminatory matter. It was your burden to show that whatever discrimination existed -- assuming that we find the law the way Bacchus seemed to say it is -- it was your burden to show that there was some justification for that discrimination.
03-1116 +++$+++ 1278 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There --
03-1116 +++$+++ 1279 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You had your chance to show it.
03-1116 +++$+++ 1280 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- there was evidence in the record. There were affidavits from Michigan enforcement officials about stings, about problem with enforcing --
03-1116 +++$+++ 1281 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right, well --
03-1116 +++$+++ 1282 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- against Internet --
03-1116 +++$+++ 1283 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- tell us what those -- what that material is, and if we find that material sustains your burden, that's fine, you win; and if it doesn't, you lose. I don't know why we have to let you go back and -- [Laughter.]
03-1116 +++$+++ 1284 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- and retry the case.
03-1116 +++$+++ 1285 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our key position is that before you get to that kind of evidentiary burden, the legal question --
03-1116 +++$+++ 1286 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's what I'm interested in. You win, either way. If it -- maybe if the Commerce Clause -- dormant Commerce Clause discrimination principle applies, you win, if we scrutinize strictly and say you have a good justification. Whether you do or not, I guess I'll find out from reading the record, but I'm more interested in the first half, which is -- doesn't apply at all. Now, your opponent said, in response to my pointing to Brandeis on this, that to support you, as to precedent, Bacchus. Young's Market isn't any good anymore. As to concept, you can divide the dormant Commerce Clause into a -- you have to favor out-of-state principle, which was the original package doctrine, which has long since disappeared, and the anti-discrimination principle, which hasn't disappeared. And her third part, implicit, is, historically, this whole Section 2 was aimed at the original package part; there is not a word in any brief I saw that suggests any motive in Section 2 to get rid of the anti-discrimination principle. I haven't found a word in support on your side on that. So she says, "Put those three things together, and we win." That's her point. Now, what's your response?
03-1116 +++$+++ 1287 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We disagree with that entire position. The text --
03-1116 +++$+++ 1288 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I know you do. [Laughter.]
03-1116 +++$+++ 1289 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the text of the Twenty-First Amendment -- the text of the Twenty-First Amendment gives states the right to control imports. The history of the Twenty-First Amendment in the Webb-Kenyon Act clearly demonstrate -- the purpose of the Webb-Kenyon Act was to eliminate alcohol shipments from --
03-1116 +++$+++ 1290 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think --
03-1116 +++$+++ 1291 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the Commerce Clause.
03-1116 +++$+++ 1292 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that Michigan can prohibit the importation of any wine, but still allow its own wine to be produced, sold, and consumed?
03-1116 +++$+++ 1293 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. That's precisely what situation was with --
03-1116 +++$+++ 1294 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I know you do, but the principle of Webb-Kenyon, which was enacted when the Wilson Act was already there -- very clear -- is to stop the original package doctrine, stop favoritism of the out of-state liquor shipment, which meant, in a dry state, you had to sell less. I mean, that's what it's there for. I didn't find a word, in other words, contrary to what I've just said; and if there are such words, now is the time to point them to me -- to point them out.
03-1116 +++$+++ 1295 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The title of the Webb-Kenyon Act is, "It is in -- an act divesting intoxicating liquors of their interstate character in certain cases. The clear intent of the Webb-Kenyon Act was to remove alcohol from the Commerce Clause. The Constitution -- the Twenty-First Amendment constitutionalized that Commerce Clause framework." That's what this Court said in Craig v. Boren. Craig v. Boren also said, "The Twenty-First Amendment creates an exception to the operation of -- the normal operation of the dormant Commerce Clause."
03-1116 +++$+++ 1296 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, then you are asking us, I guess, not only to reject Bacchus, but who was the first one that said that the Commerce Clause remains alive and well? Was it Justice Stewart? And I forgot which case it was. It was --
03-1116 +++$+++ 1297 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That may be. The Commerce Clause remains alive and well, but the Commerce Clause --
03-1116 +++$+++ 1298 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In the context of alcoholic beverages.
03-1116 +++$+++ 1299 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the context of powers expressly conferred upon the states by the Twenty-First Amendment, that's an exception to the operation -- the normal operation of the dormant Commerce Clause. Commerce Clause has to be read in light of the Twenty-First Amendment, just as the Twenty-First Amendment has to be read in light of the Commerce Clause and other provisions of the Constitution.
03-1116 +++$+++ 1300 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that's a different argument than the one you made before, which seems to be saying the Twenty-First Amendment trumps, not that the two have to be harmonized.
03-1116 +++$+++ 1301 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ When you read the two in light of each other, the purposes of each, it is clear that the purpose of the Twenty-First Amendment was to remove alcohol from interstate commerce as a constitutional matter, to prevent Congress from tampering with it in the future, to give the judgement to the states as to --
03-1116 +++$+++ 1302 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you --
03-1116 +++$+++ 1303 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the necessity for --
03-1116 +++$+++ 1304 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- you say further than that; you say the purpose was to allow that the states discriminate in favor of home industry, if it chooses.
03-1116 +++$+++ 1305 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is one of the purposes, yes. In that -- in the case that was decided immediately after the Young's Market, Mahoney, and Indianapolis Brewing, the Court said, "Discrimination is permissible in this narrow context, where the state is acting pursuant to its Twenty First Amendment powers and regulating importation of alcohol."
03-1116 +++$+++ 1306 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that gets us back to Bacchus and what to make of that.
03-1116 +++$+++ 1307 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- as I indicated, I don't believe Bacchus overrules those cases; it didn't even cite most of those cases. But --
03-1116 +++$+++ 1308 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the dissent seemed to think so -- [Laughter.]
03-1116 +++$+++ 1309 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- didn't it?
03-1116 +++$+++ 1310 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. But, as I said, we believe Bacchus is distinguishable, because that was mere protectionism, the state does have other justifications here --
03-1116 +++$+++ 1311 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, we've also said that mere protectionism is permitted.
03-1116 +++$+++ 1312 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mere protectionism is permitted. In this case, if we have to present other justifications, we have, and there are other justifications, unlike the situation in Bacchus. So even if the Bacchus rationale is good law, we still prevail on that. Thank you, Your Honor.
03-1116 +++$+++ 1313 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Halligan?
03-1116 +++$+++ 1315 +++$+++ FALSE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: In answer to your question first, Justice Breyer, the Twenty-First Amendment does not propose a nondiscriminatory ban. The Court rejected that position, not just in Young's Market and Mahoney in Indianapolis, but also in Clark Distilling, the case in which the Court upheld the constitutionality of the Webb-Kenyon Act, itself. It held that the Webb-Kenyon Act operated to remove any immunity that had been conferred by the dormant Commerce Clause. Bacchus is not to the contrary. In North Dakota, which follows Bacchus, the Court relied again on Young's Market to say that the states could impose different rules on out-of-state vendors where they were necessary to protect the integrity --
03-1116 +++$+++ 1316 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you -- do you take the position that your colleague on your same side takes, that a state can permit only the sale, consumption, and -- of its own wines, and bar all out-of-state wines?
03-1116 +++$+++ 1317 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The express terms of the Twenty First Amendment would allow that if -- particularly if it were necessary to advance the concerns of the Twenty-First Amendment. For example --
03-1116 +++$+++ 1318 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, no, don't --
03-1116 +++$+++ 1319 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No --
03-1116 +++$+++ 1320 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- don't put in the qualifications.
03-1116 +++$+++ 1321 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- just for local protectionism.
03-1116 +++$+++ 1322 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Simply for mere protectionism?
03-1116 +++$+++ 1323 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's just for local protectionism. We want to promote our wines, and not anybody else's.
03-1116 +++$+++ 1324 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The terms of the amendment would allow that, but I don't think the Court needs to explore the outer parameters of the Twenty-First --
03-1116 +++$+++ 1325 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I'm trying to understand what your --
03-1116 +++$+++ 1326 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the Twenty-First --
03-1116 +++$+++ 1327 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- what your theory is. And so you are in agreement with your colleague that this could be done, if New York chose. You can only drink New York-grown wines in -- sell and consume -- in the state of New York.
03-1116 +++$+++ 1328 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could be done, but that question really isn't presented here, because --
03-1116 +++$+++ 1329 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But could Congress pass a law forbidding it?
03-1116 +++$+++ 1330 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's a difficult question, because --
03-1116 +++$+++ 1331 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yeah. All right. But I need an answer to it. [Laughter.]
03-1116 +++$+++ 1332 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Because, you see, what's going to come next is, if you say yes, I'm going to say, "Well, didn't it pass that law with the Wilson Act?"
03-1116 +++$+++ 1333 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me answer both of those questions, if I can, Your Honor. Certainly, this Court has held, repeatedly, that the Twenty-First Amendment did not, in any substantial way, completely repeal Congress' affirmative power under the Commerce Clause. It said that in Midcal and Capital Cities. But we would argue that if Congress acted in a way which completely removed state authority to determine whether or not alcohol could be sold and the terms under which it could be sold -- for example, if Congress said all states must be dry -- then we would argue that the Twenty-First Amendment wouldn't allow that, because that would completely eviscerate any state authority.
03-1116 +++$+++ 1334 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How can that be? I mean, if this is a constitutional elimination of the Commerce Clause, how can Congress bring it back in simply by enacting a statute?
03-1116 +++$+++ 1335 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The legislative history makes clear that the Twenty-First Amendment was intended to eliminate the impediments posed by the dormant Commerce Clause and authorize states to regulate it.
03-1116 +++$+++ 1336 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you -- you want us to read it by its terms. It doesn't say anything about the dormant Commerce Clause. If we read it absolutely the way one of your arguments wants us to do, surely it excludes Congress.
03-1116 +++$+++ 1337 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ By terms of our --
03-1116 +++$+++ 1338 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So you don't want us to read it absolutely.
03-1116 +++$+++ 1339 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I don't think that -- again, I don't think that you need to decide those questions in this case. This case goes to what's at the very core of the Twenty-First Amendment, whether states can decide who can sell liquor to their citizens and whether or not states --
03-1116 +++$+++ 1340 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But it also goes to the very core of the Commerce Clause. And there are really two classifications of dormant Commerce Clause cases. One is -- and I think it's an improper use of the term "dormant clause" -- is where there's discrimination. Only the Congress can allow discrimination against out-of-state products. That's one whole classification. And that's what's -- and that's what's involved here.
03-1116 +++$+++ 1341 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ North Dakota indicates otherwise, I believe, Your Honor. In North Dakota, this Court said that, because, when alcohol flows across the border, it poses unique risks to the regulatory regime, because the state can't bring the alcohol within the full extent of its regulatory and supervisory powers, that it may be appropriate and necessary for states to impose unique rules on out-of-state vendors. In North Dakota, the Court did not say --
03-1116 +++$+++ 1342 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, but that's fine. And the other side isn't denying that here, that if, you know, they're -- discrimination means treating out-of-state people differently without good reason.
03-1116 +++$+++ 1343 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But there is good reason --
03-1116 +++$+++ 1344 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now, if you're willing to -- okay, if you're willing to acknowledge that, then we're halfway there and we're just arguing about whether there is good reason here or not.
03-1116 +++$+++ 1345 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is good reason here, Your Honor. What's critical about New York's law, as well as Michigan's law, is that it requires that any alcohol vendor have a physical presence in the state. And that's important for a couple of reasons. The state can't meaningfully oversee traffic in alcohol with an out-of-state entity. Petitioner suggested --
03-1116 +++$+++ 1346 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What is it doing with the in state entities? I mean, one of the claims is that nobody is posting officers outside the in-state wineries, no one's making substantial physical audits of in-state wineries. Is that wrong?
03-1116 +++$+++ 1347 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is wrong, Your Honor. It's certainly not the case that we have an SLA inspector outside every entity that sells liquor. That would not be possible. But it is true that the state liquor authority can, and does, physically inspect the premises. They do so to determine whether --
03-1116 +++$+++ 1348 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What do they inspect them for? Their books, I suppose.
03-1116 +++$+++ 1349 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, more than that, and this is why the physical presence is important and why the Internet hypothetical that Your Honor raised would not -- would not satisfy the state's concerns. What the state can do is, it can go onto a premises, and it can count whether the bottles on the shelves of that premises match the records. That's the best way to detect whether or not there is evasion. Because if you have --
03-1116 +++$+++ 1350 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And is there a record that the state is doing that?
03-1116 +++$+++ 1351 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is not clear evidence in the record with respect to that -- to that level of detail, but that --
03-1116 +++$+++ 1352 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, isn't that the end of that issue, then? I mean, it is your burden, isn't it?
03-1116 +++$+++ 1353 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, there is material in the McKeon affidavit, which is in the Joint Appendix -- Mr. McKeon is the Chair of the state liquor authority -- but it's also the case that to suggest that because there is some option out there -- and there's no firm evidence that a less prescriptive rule would, in fact, satisfy the state's concerns in preventing diversion and tax evasion -- but the possibility that's there's some rule out there, because other states have adopted more lax rules, is to treat alcohol like any other product. And the Twenty First Amendment reflects a consensus by this nation that alcohol is unique, that it should not be open to --
03-1116 +++$+++ 1354 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, the Twenty-First Amendment at least recognizes that alcohol can be treated as unique, and the issue here is whether you're really doing that in a way that supports your claim of interest.
03-1116 +++$+++ 1355 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes --
03-1116 +++$+++ 1356 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And, so far, the one specific thing I've heard from you is that state inspectors do go on winery premises, and they count bottles, and they see if they match what's on the written record.
03-1116 +++$+++ 1357 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They also draw on the assistance of local law enforcement. And this is also --
03-1116 +++$+++ 1358 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But if that's --
03-1116 +++$+++ 1359 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- set forth --
03-1116 +++$+++ 1360 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- if that's really what New York's concern is, then why does New York say, "Ah, but out-of-staters, if only you establish an office here -- not a winery; an office -- you can operate, and you can make the direct sales from that office, and even in" -- I think your brief told us that, well, these small wineries, out-of-state wineries, haven't got all that much to worry about, because, after all, they could join together -- a group of them could open an office. Now, that office, owned by a group of out-of-state vintners is not going to have bottles on the shelf, is it?
03-1116 +++$+++ 1361 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, it would. That's -- the state laws requires that any licensed winery have a government-bonded storehouse or ware-room -- storehouse -- storeroom or warehouse, pardon me --
03-1116 +++$+++ 1362 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, isn't the --
03-1116 +++$+++ 1363 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The reason for that is because physical products --
03-1116 +++$+++ 1364 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How do you envision this combination of small wineries? You said that in-state establishments might be jointly maintained by out-of-state wineries.
03-1116 +++$+++ 1365 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. The state liquor authority has not issued any regulations on this, but presumably what they would say is, you could share a space, provided that the physical property of each winery, the bottles, is segregated so that the states can come in and check whether or not each winery's products conform with their records. There are other reasons why a physical presence is important, as well. First of all, the state draws on local law enforcement extensively to identify illegal activities, and that would not be possible with any entity located out-of-state. Additionally --
03-1116 +++$+++ 1366 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What illegal -- I'm sorry -- you've got to be specific. What illegal activities? Selling to minors?
03-1116 +++$+++ 1367 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could be selling to minors, but it could also simply be sale out of an unlicensed premises, where you are selling outside the proper hours of sale, or sale outside of the three-tier system --
03-1116 +++$+++ 1368 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yeah, but if licensed premises don't serve a state interest, then you can't require a licensed premises, so that argument doesn't get too far.
03-1116 +++$+++ 1369 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Your Honor, the principle that having entities that sell liquor be licensed, is one that is at the heart, not just at the --
03-1116 +++$+++ 1370 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How does -- how does requiring them to have an in-state office somehow prevent them from shipping to minors from out of state --
03-1116 +++$+++ 1371 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It --
03-1116 +++$+++ 1372 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- or from shipping to consumers from out of state without paying you their tax?
03-1116 +++$+++ 1373 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It --
03-1116 +++$+++ 1374 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How does the opening of an --
03-1116 +++$+++ 1375 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-1116 +++$+++ 1376 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- an office in New York State at all prevent that?
03-1116 +++$+++ 1377 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It can't prevent it a hundred percent, but no --
03-1116 +++$+++ 1378 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It can't prevent it at all.
03-1116 +++$+++ 1379 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, it can deter it, and it can deter it significantly, because, first of all, there is a much more significant opportunity to identify the illegal activities; and, secondly, if a retailer or a wholesaler or a manufacturer knows that, that operates as a powerful deterrent --
03-1116 +++$+++ 1380 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What did --
03-1116 +++$+++ 1381 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ We seem to be talking -- may I just ask one -- we seem to be talking about two different things. Justice Scalia was assuming that, if you have the license and some in-state warehouse, you can ship from outside. And I -- is that the assumption? Or is your argument that New York can require -- does require the in state warehouse, and you can ship into -- in New York, you can ship only from that warehouse?
03-1116 +++$+++ 1382 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To be clear, the state has not issued regulations that specifically address that point, because --
03-1116 +++$+++ 1383 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So the -- we don't know yet.
03-1116 +++$+++ 1384 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't know. But in talking with the state liquor authority, they have made it clear that their intent would be to require that the liquor come first to the in-state premises --
03-1116 +++$+++ 1385 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, even if -- I'm willing to assume that. How does that guarantee that the out-of-state winery will not, in violation of New York State law, ship directly to minors or ship directly to consumers, just simply bypassing its cache of wine in New York?
03-1116 +++$+++ 1386 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is no guarantee, Your Honor, but there is never any guarantee --
03-1116 +++$+++ 1387 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There's no guarantee.
03-1116 +++$+++ 1388 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that people won't --
03-1116 +++$+++ 1389 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It doesn't -- it doesn't enable you to enforce your law any more rigorously than without having a requirement for a local office.
03-1116 +++$+++ 1390 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That, I would respectfully disagree with. It does operate as a powerful deterrent and --
03-1116 +++$+++ 1391 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, your argument there is that --
03-1116 +++$+++ 1392 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- as an investigative aid.
03-1116 +++$+++ 1393 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- if they break the law, you can shut down the warehouse; whereas, you can't effectively do that if the warehouse is in California. Isn't that your point?
03-1116 +++$+++ 1394 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's one of the points, but also that we're much more likely to be able to identify the illegal activities in the first place. The suggestion that we would send inspectors to California or any other place to look at books and count bottles is completely infeasible. And the Twenty-First Amendment was intended to allow states to deal with the regulatory challenges that are posed when liquor comes across the border. If we had to demonstrate that there was a hundred-percent compliance, then we couldn't have any regulation at all. That's not, I would submit, a --
03-1116 +++$+++ 1395 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, to what --
03-1116 +++$+++ 1396 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- reasonable measure.
03-1116 +++$+++ 1397 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- to what extent does New York take account of, say, the rigorous regulation in the states from which this wine is coming? You say we must do this to police for all kinds of things. But don't other states -- California, Virginia -- don't they have laws that their local wineries must meet?
03-1116 +++$+++ 1398 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They --
03-1116 +++$+++ 1399 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And is New York just saying, "We're going to treat this thing as though it's totally unregulated, anyway"?
03-1116 +++$+++ 1400 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We're not suggesting that, Your Honor. What we are suggesting is that relying on other states to enforce law violations in New York State is not a very feasible alternative. Additionally, there are 33 states that have agreed with New York, a number of whom are states that have either reciprocal or unrestricted shipping statutes, and said to this Court, "Please do not prohibit the kinds of laws that are at issue in New York and Michigan." So it's obviously important to the regulators in those states, as well.
03-1116 +++$+++ 1401 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What about the states that do a allow shipment from out of state? They don't care about their --
03-1116 +++$+++ 1402 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I can't --
03-1116 +++$+++ 1403 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How many are there that allow shipment from out-of-state wineries?
03-1116 +++$+++ 1404 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that the current number is 26 states. I certainly can't speak to the regulatory motivations of each of those states, or the reasons why those laws might have been passed.
03-1116 +++$+++ 1405 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It certainly suggests that what -- that what you're arguing is not essential to the state's enforcement of its alcohol laws.
03-1116 +++$+++ 1406 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, a number of those states have, in fact, joined New York and Michigan in asking the Court not to --
03-1116 +++$+++ 1407 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ States don't like federal regulation --
03-1116 +++$+++ 1408 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- restrict that.
03-1116 +++$+++ 1409 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- of any sort, of course. I know that. [Laughter.]
03-1116 +++$+++ 1410 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think that all the Twenty-First Amendment requires the states to demonstrate is that the regulatory regime that they have chosen has some relationship to their goals of protecting the integrity of the state's system. And that's certainly what the Court suggested in North Dakota.
03-1116 +++$+++ 1411 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I'm not sure. When you have facial discrimination against out-of-state products, I think you're -- the bar is a little higher than that.
03-1116 +++$+++ 1412 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that was the case in North Dakota, as well. In North Dakota, the state imposed regulations on out-of-state vendors that were extremely onerous, so onerous that some vendors said they wouldn't ship products at all. That was alcohol that was not even destined for consumption within the state; but on a federal enclave. And the mere risk of diversion into unregulated and unlawful channels was enough to allow the state to impose those discriminatory rules. The same is true here. Justice O'Connor, you also asked about Bacchus, as well, and I would like to take a moment to address that. Bacchus is distinguishable in several ways. First of all, Bacchus was a tax. And while we would argue that taxes could be used to further states' interest in suppressing consumption, for example, it is certainly not at the heart of the -- of the Twenty-First Amendment in the way that the direct regulation of alcohol across the border is.
03-1116 +++$+++ 1413 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but if you can't grant a tax exemption -- and it seems to me, a fortiori -- you can't grant a prohibition about importing at all.
03-1116 +++$+++ 1414 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I, respectfully, would disagree with that, Your Honor. If you can't address the alcohol that flows across the border, which was precisely why the Twenty-First Amendment was enacted, as well as Webb Kenyon, because the --
03-1116 +++$+++ 1415 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I'm suggesting a tax on imports is less restrictive than a prohibition on imports.
03-1116 +++$+++ 1416 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we would certainly, you know, welcome the authority to do both, but importation is what is at the heart of the Twenty-First Amendment. Bacchus is also different, because, there, the state made no effort whatsoever to defend the statute with reference to any concerns related to the Twenty-First Amendment. And Bacchus --
03-1116 +++$+++ 1417 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And according to the District Court, in this very case, the State Attorney General conceded that New York's measure allowing direct sales by in-state wineries was designed to benefit local farmers.
03-1116 +++$+++ 1418 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was an off-the-cuff remark by a single attorney, Your Honor, and that can't be taken as dispositive, given the state's vigorous defense of this statute. It also was regarding a provision that is not even directly before the Court right now which confers no different shipment privileges than are conferred on any winery, whether in-state or out-of-state, that would obtain a license to sell in New York.
03-1116 +++$+++ 1419 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Halligan.
03-1116 +++$+++ 1420 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Your Honor.
03-1116 +++$+++ 1421 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Bolick, you have, let's see, about four minutes left.
03-1116 +++$+++ 1423 +++$+++ FALSE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens. Three very brief points. There his a panoply of tools available to states to police out-of-state wineries in direct shipping, as the Federal Trade Commission has recognized. They can, if they issue a permit, revoke that permit. And New York has authority to issue such permits under Section 105-9. The Twenty-First Amendment Enforcement Act, for which the liquor distributors and states lobbied very hard, gives injunction authority in the home federal courts. And, of course, the federal agency, the Tax and Trade Bureau, can revoke a permit if state law is violated. In the --
03-1116 +++$+++ 1424 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Who's going to count the bottles? [Laughter.]
03-1116 +++$+++ 1425 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the state -- the Federal Government is able to count those, but the evidence is that they don't. And that goes back to a question, I believe, Justice Souter asked. In the Michigan case, a question was posed in an interrogatory, "What enforcement by -- is done of in-state wineries." In that regard, the answer was, "None."
03-1116 +++$+++ 1426 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How do you count bottles? I would have thought the consumers have all the bottles. [Laughter.]
03-1116 +++$+++ 1427 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right. And, certainly in the directly shipping context in-state, that is emphatically the case.
03-1116 +++$+++ 1428 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I think they were referring to full bottles. I guess -- [Laughter.]
03-1116 +++$+++ 1429 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With direct shipping --
03-1116 +++$+++ 1430 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They've all been drinking -- [Laughter.]
03-1116 +++$+++ 1431 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- to arbitrators.
03-1116 +++$+++ 1432 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With direct shipping, Justice Scalia, we can personalize things. In terms of the Bacchus case, as Justice Ginsburg pointed out, New York, like Hawaii, conceded protectionism. It is very rife in the legislative record in 1970, when the direct shipping was extinguished. In 1995, when Governor Pataki vetoed a bill that would have solved this problem, he said, and I quote -- and this is in the record, the Joint -- the Second Circuit Joint Appendix, at 442 -- he said, and I quote, "Since the vast majority of this country's wines are produced in California, I believe that this bill would inevitably lead to a significant increase in mail-order wines from that state into New York. This increase could, in turn, lead to a decrease in sales for New York liquor stores and their distributors, and shrink New York wineries' market share. That is protectionism." And, finally, the notion that small winemakers could go to all 50 states and open offices in order to do this -- if you could drive out to Middleburg and visit Juanita Swedenburg's winery -- and she invites you to do so -- [Laughter.]
03-1116 +++$+++ 1433 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- you will find Mrs. Swedenburg selling wine, harvesting grapes, and bottling. This is a ban on -- this is market foreclosure, sure and simple -- fewer than 600 wineries are represented on the stores of New York's shelves, out of over 3,000 wineries --
03-1116 +++$+++ 1434 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The question --
03-1116 +++$+++ 1435 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in the United States.
03-1116 +++$+++ 1436 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- really is whether the plain language of the Twenty-First Amendment allows that very protectionism.
03-1116 +++$+++ 1437 +++$+++ TRUE +++$+++ MR. BOLICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I would refer you, in my brief time remaining, to the brief, the Carter-Phillips brief for the Napa Valley Vintners Association, the DKT Liberty brief, which go into the history of the Twenty-First Amendment, which was intended to restore the police power, which did not include the power to discriminate. Our clients cannot compete with the liquor distributors in the political marketplace in their -- in their -- in their home states. They can, however, compete in the economic marketplace. The Commerce Clause protects that right, that level playing field. The Twenty-First Amendment was never intended to take it away. We ask this Court, respectfully, to honor 124 years of precedent in the National Economic Union. If there are no further questions, thank you.
03-1116 +++$+++ 1438 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Bolick. The case is submitted.
03-1160 +++$+++ 1442 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ Argument in Smith against the City of Jackson. Mr. Goldstein.
03-1160 +++$+++ 1444 +++$+++ FALSE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: Petitioners submit that the Age Discrimination in Employment Act prohibits an employment practice that has a significant disparate impact on older workers if that practice lacks any reasonable business justification. The ADEA embodies Congress' determination that age discrimination seriously impedes older Americans' ability to participate fairly in the American work force.
03-1160 +++$+++ 1445 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Goldstein, let me just interrupt a minute. You say if it lacks the -- the business justification. But is it not a part of -- that is not a part of the plaintiffs' primary submission, is it, that it does not show? That's an affirmative defense.
03-1160 +++$+++ 1446 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, there is not a clear answer to that question in all candor. It is not before the Court. I will tell you that the lower courts uniformly in the ADEA disparate impact context apply Justice O'Connor's plurality opinion in Watson and the Wards Cove rule rather than the post-1991 Civil Rights Act rule. That is a debatable proposition because, as your question suggests, in subsection (f)(1) of the statute where this provision comes from -- and let me just take us to the language. It would probably be most useful. In the blue book, the -- the blue petitioners' brief at page 1 are the relevant provisions. (a)(2) we'll come back to. That's the parallel language to Griggs. The reasonable factor other than age provision is (f)(1), and it says: it shall not be unlawful for an -- this is at the bottom of the page. It shall not be unlawful for an employer to take any action otherwise prohibited -- and I'm going to come back and focus on that -- under subsection (a) where the differentiation is based on reasonable factors other than age. The fact that it says otherwise prohibited seems to suggest that this is setting up an employer defense, as your question indicates. And the Court in the -- the Western Air Lines case in 1986 said that the BFOQ provision, which is in (f)(1) as well, is an affirmative defense. So I --
03-1160 +++$+++ 1447 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You put your finger on exactly what's the part of this case that's bothering me. Read through the language. As you read through the language, disparate impact does seem to be called for, and this particular provision, reasonable factors other than age, seems a defense to that, just as BFOQ is the defense to disparate treatment. And that all seems to work. But you read the definition of reasonable factor other than age to mean business necessity or even Justice O'Connor's opinion, which is pretty tough. It's hard for an employer to make that defense. And while making it hard to make that defense in the case of gender or race discrimination, in fact works in my opinion perfectly well. You start making it hard to make that defense here and you're going to have a nightmare because every effort by any employer to equalize to any degree pay or treatment of his or her employees is going to have a disparate impact in respect to age because the correlation with age runs into all kinds of things that it doesn't in the other cases. So I can't believe that Congress really would have wanted that, but the reason I can't believe it is because I can't believe the business necessity part of it. And so here I'm faced with a reg which, at one and the same time, pulls in disparate impact and business necessity, and now I don't know what to do.
03-1160 +++$+++ 1448 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I can tell you. (Laughter.)
03-1160 +++$+++ 1449 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The answer is that you should recognize, as does the commission, which has delegated rulemaking authority under the act, that business necessity, which is the term of art that they used in the regulation -- and we'll come back to it. It's at page 2 of the blue brief -- means different things in different contexts. And so I want to take you to the specific citations where the EEOC has recognized the common sense principle. We know that more things that are legitimate employer practices correlate with age than they do with race and gender. It is --
03-1160 +++$+++ 1450 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Goldstein, before you do that, before you deal with the EEOC regulation, this statute doesn't -- at least on -- on the page 1 part you called our attention to, doesn't refer to business necessity. That's in the EEOC regulation. If I were just reading this statute cold, I'd say, yes, that looks like an affirmative defense to me, but reasonable factor seems like something quite different than necessity. It isn't necessary for the business to do this, but it's reasonable. And if that's -- then the business necessity -- it seems to me, at least arguably, an improper construction of this act, that the EEOC got it wrong when it referred to business necessity. They were thinking of Griggs and -- and title VII, but this statute says reasonable factors.
03-1160 +++$+++ 1451 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Our position relies only on the statute. We embrace the text of the statute. (f)(1) says that the employer's conduct merely has to be reasonable. We agree with that. The point I would then take you to is that in -- if the Court were interested in the regulation -- we don't think it's necessary to get to the regulation, but if it were, the EEOC has said that it too recognizes that the phrase, business necessity, in the context of the Age Act does not mean essential to the business. Let me tell you why it used the language it did, business necessity, in the regulation just to clear it up. And that is when this Court first used the words, business necessity, in Griggs and then subsequently in Wards Cove, it didn't have all the connotations that it does now as being quite a high employer burden. If I could just read to you two things from Griggs. Griggs said, the touchstone is business necessity. If the employment practice cannot be shown to be related to job performance, the practice is prohibited. It simply required related to job performance. That's the backdrop on which the EEOC used the word.
03-1160 +++$+++ 1452 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I'm not sure you're right about that, Mr. Goldstein, because if you think of what it was, it was a pen and paper test and it was a high school diploma. Now, an employer might well think I want to upgrade my work force. I want this to be a real classy work force. So I'm going to require a high school diploma. It isn't necessary, but why is it unreasonable for me to do that? So I -- I don't -- I think Griggs spoke about rules that were built in headwinds because a large part of the population didn't have the opportunity to get high school diplomas. That doesn't exist in the age discrimination area. So I -- I don't think that Griggs is an example of something that was a loose business necessity rule.
03-1160 +++$+++ 1453 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My point is only terminological, and that is, when the EEOC used those words, it did not do so against a backdrop in which they carried a connotation that was necessarily very strict, and it has said several times -- and they are quoted in our brief -- that the standard -- and this is just the bottom line. I think it's a very important bottom line.
03-1160 +++$+++ 1454 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You don't care about those regs anyway. Right?
03-1160 +++$+++ 1455 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We do care about the regulations.
03-1160 +++$+++ 1456 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, you do. I thought you were saying you could make your case just on the --
03-1160 +++$+++ 1457 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we have --
03-1160 +++$+++ 1458 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- text of the statute.
03-1160 +++$+++ 1459 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We can and will.
03-1160 +++$+++ 1460 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, maybe you should because I'm not so sure that the EEOC interpretation is entitled to Chevron deference.
03-1160 +++$+++ 1461 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We do believe that it is entitled to Chevron deference because they have delegated rulemaking authority and there is some suggestion that the because of language in subsection --
03-1160 +++$+++ 1462 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But was this an actual rule after notice and comment, or is it a -- an interpretation?
03-1160 +++$+++ 1463 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is a post-notice and comment rule.
03-1160 +++$+++ 1464 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- but it interprets -- doesn't interpret the prohibitory section. I mean, it -- it might be understood as simply making an assumption that, say, the Griggs rule would be applied in -- in this Court.
03-1160 +++$+++ 1465 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's conceivable you could read it that way, although the EEOC has specified many times, in the quarter century since it enacted the regulation, that no, when we -- and let me take us to the text to explain why, and that again is at page 2 of the blue brief. They said -- and this is the block quote. When an employment practice, including a test, is claimed as a basis for different treatment of employees or applicants for employment on the grounds that it is a factor other than age, and such practice has an adverse impact on individuals. That's the reference to disparate impact. The regulatory materials cite to Griggs. But in all events, I do want to come back to the bottom line, and that is the EEOC recognizes, we recognize that it's easier to prove either a defense or to put the burden on the plaintiff's case. It's a -- you have a higher hurdle --
03-1160 +++$+++ 1466 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Easier -- easier is a matter of degree.
03-1160 +++$+++ 1467 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-1160 +++$+++ 1468 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And reasonable factor could be interpreted to say what the employer -- but the employer just doesn't like paying these executives so much money when these new younger janitors make so little. And so he says, I want to pay the new younger janitors more. Okay? There we've got it. Disparate impact.
03-1160 +++$+++ 1469 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
03-1160 +++$+++ 1470 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And now you say, what's the business necessity? And frankly, there wasn't one. It's just that I found it sort of bad. All right? So there we are. I've lost my case. Now, that's what is worrying me, and I thought perhaps this reg that seems to say -- and lower courts have accepted that I would lose my case -- that this reg is outside Congress' -- the agency's authority for that reason because Congress couldn't have intended that result.
03-1160 +++$+++ 1471 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, let me take you to the lines of cases that I think might concern you. There were a set of cases before this Court's decision in Hazen Paper that involved two rules, Justice Breyer, and I will tell you that you referred to in the Adams oral argument when this case -- this issue came to you before. And so I want to refer to a very specific set of cases. There were a set of cases before 1993 in which there was some correlation. High salary correlated with age. And the courts of appeals, the Third -- the Second Circuit in the Geller case and the Eighth Circuit in the Leftwich case treated that as effectively a disparate treatment -- disparate treatment case because of the high level of correlation. The more recent cases reject that result and we embrace the more recent cases. And I want to cite them to you so you could look them up if you wanted. The Evers case, which is 241 F.3d 948; the Williams case, which is 112 F.Supp.2d 267; and the last one is Newport Mesa, 893 F.Supp 927. These cases recognized that cost is a perfectly legitimate business justification, and they put a single burden on the employer. Now, let me just -- just to say, most impact cases aren't cost cases, but I know it's a concern. They say, look, if you want to cut your costs and get rid of your more expensive work force, we're only going to ask you to do one thing, and that is allow your more senior workers to take a pay cut. They do not say, as did the older cases, that it causes disparate impact and you lose your case. And so we don't --
03-1160 +++$+++ 1472 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Goldstein, you -- this is -- this case arises out of a compensation program of the employer, and why is it brought under 4(a)(2) instead of 4(a)(1) which addresses discrimination in compensation?
03-1160 +++$+++ 1473 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice O'Connor, the lower courts unanimously conclude, as does the commission, that (a)(2), although it does not have the word compensation in it, does apply to compensation and --
03-1160 +++$+++ 1474 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But why in light of 4(a)(1)?
03-1160 +++$+++ 1475 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because they understand 4(a) -- and let me take you -- everyone to the text just so we can all be literally on the same page, and that is going to be in the red brief at page 17a. It is 623(a), and it's the first block quote at the top of page 17a of the red brief. They understand that 623(a)(1) refers to actions against individuals, whereas 623(a)(2) refers to actions against groups, group policy versus individual action, and they do that because of the introductory language to (a)(1) and (a)(2), to fail or refuse to hire or to discharge any individual; whereas, (a)(2) refers to limit, segregate, or classify his employees.
03-1160 +++$+++ 1476 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask a question at this point going really back to the question I asked you at the outset of the argument? If I thought seniority or years of service was a reasonable factor other than age and if I thought this particular compensation program was based on years of service rather than age, can I look at the reasonable factor other than age in deciding whether your complaint states a cause of action?
03-1160 +++$+++ 1477 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Hazen Paper established that that is not --
03-1160 +++$+++ 1478 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And if I do look at it and if I do come to the conclusion I've suggested, would I not have to dismiss your complaint?
03-1160 +++$+++ 1479 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I may misunderstand the hypothetical, Justice Stevens.
03-1160 +++$+++ 1480 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The hypothetical -- and I think it may be the case -- that you have a compensation program which uses years of service as a basis for classifying employees which has a disparate impact on older workers, but it does -- also it relies squarely on a reasonable factor other than age if you will call years of service such a factor.
03-1160 +++$+++ 1481 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. That's perfectly legitimate. That -- as I understand the hypothetical --
03-1160 +++$+++ 1482 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- suppose I want --
03-1160 +++$+++ 1483 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I understand that to be this case.
03-1160 +++$+++ 1484 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it would not because the rationale given by the employer here for -- let -- let me take us to the facts and then the explanation that's given by the employer. What happened here is they gave all of the line police officers much bigger raises than they gave to the more senior officers. That -- and the difference in pay between protected persons under the ADEA and non-protected persons was 4 standard deviations, a 1 in 10,000 chance, statisticians will tell you. And they said --
03-1160 +++$+++ 1485 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but the basis for differentiation was years of service, was it not?
03-1160 +++$+++ 1486 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The basis for differentiation was years of service, but the question is in -- is it a reasonable choice by the employer in this context. And the reason is it's a --
03-1160 +++$+++ 1487 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I'm just asking in the abstract. Why wouldn't that always be a -- a reasonable factor other than age?
03-1160 +++$+++ 1488 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I apologize. That -- and so I think I answered your hypothetical too broadly. And that is, it depends. In the great majority of cases, employers certainly can say I want to give a class of employees more money. Perfectly sensible. Congress didn't intend to block that. But the question is, is this outside the usual set of cases? And the city's explanation what -- for this policy, which was to give the line cops more money but not the rest of the cops who happen to all be over 40, was that they wanted to bring the salary up to a -- a regional average. And so we asked the question, does this accomplish that in a reasonable way, and it does not because they left out huge categories of employees.
03-1160 +++$+++ 1489 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the factor -- if I understand it, it wasn't because they were line officers, it was rather because they had lesser years of service than the more senior officers.
03-1160 +++$+++ 1490 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
03-1160 +++$+++ 1491 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No.
03-1160 +++$+++ 1492 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is not the facts here. That's right. They -- they did not say we are going to give pay raises to the people who have lesser years of service because we're concerned about their pay. To the contrary. Let me take you to one piece of the record that I think will be helpful. Although again the cases presents the legal question, the lower court on remand can resolve the case. But at page 15 of the joint appendix, there is the pay plan itself, and the first sentence is that -- they -- explains the purpose. The -- the city wanted to provide a compensation plan that will attract and retain qualified people, and then it says, to all employees regardless of age. They purported to be giving the same treatment to everyone regardless --
03-1160 +++$+++ 1493 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't think the statement of purpose tells me what the -- what the criterion for the different treatment was. I still think it was years of service.
03-1160 +++$+++ 1494 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, I -- I just think that -- it misunderstands the facts as I know them in this particular case.
03-1160 +++$+++ 1495 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What was the criterion?
03-1160 +++$+++ 1496 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The criterion was that they took the -- they had different kinds of officers. They had police -- line police officers, master sergeants, all the way on up through the system.
03-1160 +++$+++ 1497 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So in other words, the criterion was the kind of rank they had before.
03-1160 +++$+++ 1498 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and then --
03-1160 +++$+++ 1499 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why isn't that a reasonable factor other than age?
03-1160 +++$+++ 1500 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The question is not whether that because that's not -- having those criterion is perfectly reasonable. The question is, is it reasonable -- and this would be resolved on remand -- to give raises to only one of those categories when your explanation is that you were trying to give raises to bring everyone up to a regional average? And so, Justice Stevens, I think --
03-1160 +++$+++ 1501 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In other words, you say the -- the question isn't whether they used a reasonable factor other than age. Your question is whether the use of those factors was overall reasonable.
03-1160 +++$+++ 1502 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. There are two things.
03-1160 +++$+++ 1503 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's a rewriting of the statute.
03-1160 +++$+++ 1504 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, I -- I don't think so, Justice Stevens. It's the same question that we ask in title VII, and that is, was it a -- a -- there's a higher bar there, but were you pursuing a -- a legitimate goal and did you -- did you pursue it in a reasonable way? That's why a title VII plaintiff -- and this has -- and I do want to come back --
03-1160 +++$+++ 1505 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Title VII doesn't have this language in it.
03-1160 +++$+++ 1506 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely right, but it's not language here that would detract from that structure of the -- of the title VII inquiry. All the lower courts, for example, agree that it -- as I said, follows the pre --
03-1160 +++$+++ 1507 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Here you're saying you're not attacking reasonable factor other than age. It has to be based on reasonable factor other than age. And I take it here you're saying it's not based on what they advance as reasonable factors.
03-1160 +++$+++ 1508 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. They give --
03-1160 +++$+++ 1509 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is that right?
03-1160 +++$+++ 1510 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. They give an explanation.
03-1160 +++$+++ 1511 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if I -- I say my explanation for why I pay the newer people more is really I like to have that atmosphere. You make less money in my business, but it's more democratic and people are happier even though no one will invest in my company. (Laughter.)
03-1160 +++$+++ 1512 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But still, I'd like a commune. All right? That's how I want to do it. Now, that's not totally idiotic. It's plausible. So I just win. Right?
03-1160 +++$+++ 1513 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. You would lose a treatment case.
03-1160 +++$+++ 1514 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Ah, I lose a treatment case. No, no. I'm not -- I'm just -- it's I'm not paying the younger workers more. I'm paying the newer workers more. All right? They happen to be much the same category, but I -- I don't want it. It's not age. Or, you know, I pay the lower paid workers more. How's that? Do I win?
03-1160 +++$+++ 1515 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You paid the lower paid workers more?
03-1160 +++$+++ 1516 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. I paid the lower paid workers more? I want to bring them up to the executives. I -- I like it. It's more democratic and it makes a happier group. And -- and so, now, do I win or lose?
03-1160 +++$+++ 1517 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You, in all likelihood, win in that hypothetical. You --
03-1160 +++$+++ 1518 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I win. And I don't have to say any more than that.
03-1160 +++$+++ 1519 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. But let me tell you, it's still a very important statute because -- for the reason that I framed before, and that is, most cases that are ADEA disparate impact cases are not cost cases. There are other tests: applications procedures, strength tests, and the like. That's what the EEOC believes is still very essential. So while we don't impose a big burden on employers in the cost context for the reasons that you and Justice Stevens have been exploring, that doesn't mean our position is somehow worthless. The EEOC has said that the disparate impact plays a, quote/unquote, vital role under the ADEA and that the respondents' position would greatly weaken the statute because --
03-1160 +++$+++ 1520 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There haven't been a whole lot of cases under the impact theory as applied to age, and you just said you're not talking about the cost category but that -- you mentioned physical fitness. And there was a case. Smith against Des Moines involved that, but it was found the -- the physical fitness test was job-related. Have there been mutual rules with a disparate impact that you can give us as examples? When you're talking about race and sex, the examples come to mind much more readily than in the age category.
03-1160 +++$+++ 1521 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I can. I'll give you two sets of examples. The first is the examples identified by the Solicitor General in his cert petition defending the EEOC's position in the Francis W. Parker case in 1994. The EEOC pursued cases -- and they're cited in the cert petition -- involving rules that prohibit -- that require recent college graduates to get a job that forbid hiring someone who worked previously for a higher salary than they would be getting in the new -- in the new job and that laid off people who would be eligible to retire soon. So those are the examples the Solicitor General gave. I'll give you two other examples. One is a -- a case called --
03-1160 +++$+++ 1522 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ These are examples of -- violations or things that are okay?
03-1160 +++$+++ 1523 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Violations. I apologize. The EEOC filed suit because of these violations of the act.
03-1160 +++$+++ 1524 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why isn't it a reasonable factor other than age that I don't want to hire somebody who's going to retire a year after I hire him?
03-1160 +++$+++ 1525 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because it's not --
03-1160 +++$+++ 1526 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Gee, that seems to me terribly reasonable.
03-1160 +++$+++ 1527 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
03-1160 +++$+++ 1528 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't care how old he is. I don't want anybody who's going to retire the year after I hire him. I don't want to have to go through this -- this whole process again.
03-1160 +++$+++ 1529 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The view of the commission -- it's one I share, but a particular court might not -- is that that is not a good -- a reasonable work place judgment. One could disagree with it. But the -- those employees will be very valuable. And it's not that they will retire, I should make clear. It's that they're eligible to retire. It -- it may well be a different case if you could say, I asked the person. They said they're leaving in a year. The rule challenged there was mere eligibility to retire, and they did give the other examples. I didn't finish with the court cases. They are Klein, which is 807 F.Supp. 1517, which is a hiring test I think by the FAA in that case that -- that happened to exclude all of the people, I think, over the age of 55. And there are other cases that are, in the line of cases that I was discussing with Justice Breyer, in which the employer doesn't say -- doesn't give the person who gets the higher pay the option of taking a pay cut before being fired. So the statute, both in the non-cost context and the cost context, has very important applications. I did want to return to your correct premise, however, Justice Ginsburg. You said there aren't many cases. I think it's important to recognize that the -- the important, legitimate cases, by and large, are conciliated by the EEOC. Remember, it goes through an administrative process first. The EEOC found a violation here, gave us a right to sue letter. The -- the city just declined to settle with us. There have been -- and I have checked. There have been 74 disparate impact cases in the history of the statute that are reported in the Federal courts, and I think that is a good answer to the idea of the respondents that this will impose a huge burden on employers, the idea that there will be a massive amount of litigation. Remember --
03-1160 +++$+++ 1530 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, once we -- if we were to say it's covered, don't you think that number would expand?
03-1160 +++$+++ 1531 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's possible it would expand some, but I do think we're right to say not much because --
03-1160 +++$+++ 1532 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it's not the number of cases either. I mean, you could have -- it wouldn't take much to have a single case that has a rule in it, say, that makes it very difficult for an employer to do things of type X or type Y, and that would have enormous impact even though you'd say, well, it was just one case.
03-1160 +++$+++ 1533 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there are two fears I think the respondents have articulated, neither of which are borne out by actual experience because, Justice O'Connor, the EEOC has recognized these claims for a quarter century. Until 1993, every single circuit agreed with us, and right now three circuits agree with us. So I -- there is a large body of experience that suggests -- and that's where those 74 cases come from. So, Justice Breyer, they have two concerns. One is the mere notion of the possibility of liability will -- and the prospect of how expensive litigation would be -- would be deterring valuable employment practices. That's not borne out by experience. Your point is, well, what if the liability threshold is too high? And experience suggests and the rules endorsed by the commission and the lower courts are that the liability threshold is not too high. I did also want to say that it is the liability threshold that is the key for deciding how to accommodate the respondents' concerns. Justice O'Connor's Watson plurality opinion explains that the evidentiary standards that apply in these disparate impact cases should serve as adequate safeguards. The precise, same argument was made by the business community in Watson, saying, look, we're going to have to adopt quotas. This will be entirely unmanageable. Before I sit down and reserve the remainder of my time, I did want to say we have a really good case, to refer back to my last argument, and that's Griggs, which is about the exact same statutory text. And then we have a line, a wall that is uninterrupted of this Court's authority. Six straight decisions say when the statute -- title VII says something and the ADEA says the same thing, they have the parallel construction. And in our view the respondents' arguments aren't good enough to overcome the double hurdle of stare decisis and Chevron deference. If I could reserve the remainder of my time.
03-1160 +++$+++ 1534 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Nager.
03-1160 +++$+++ 1536 +++$+++ FALSE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Stevens, and may it please the Court: If I may, I'd like to go straight to the question as to why mere statistical correlations with age don't create a prima facie case of discrimination because of age. This Court in its title VII cases has said that a mere statistical correlation with race or sex can create a prima facie case of discrimination because of race or sex because it's advanced a proposition that there's no inherent correlation between race and sex and ability to perform a job or do a job. And as a consequence, the Court has said that a statistical disparity is a departure from the expected norm. Thus, the statistical disparity creates a suspect situation which could be treated as a prima facie case of discrimination because of age, to use the Court's term in Watson, the functional equivalent of intentional discrimination. In the age context, the premise doesn't apply. In the age context, as Justice Breyer pointed out in the Florida Power argument, as he's pointed out again today, age is inherently correlated with myriad selection practices. It's painful to say, particularly to a Court that's a little bit older than I am, but our mental and physical capacities are not constant over our lifetimes. They're different for each one of us, but statistically they change over time and they deteriorate over time, and progress doesn't treat the skills and abilities that we have with -- the same way to people who are at different stages in life. Our education and our technological --
03-1160 +++$+++ 1537 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Verdi wrote Falstaff when he was 70 -- late -- in his late 70's. It was his greatest creation. Something.
03-1160 +++$+++ 1538 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is no doubt, particularly in occupations like judging -- (Laughter.)
03-1160 +++$+++ 1539 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that experience and wisdom may be something that grow over a lifetime. But as we know --
03-1160 +++$+++ 1540 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Wunsler died at about 28, didn't he?
03-1160 +++$+++ 1541 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. 34.
03-1160 +++$+++ 1542 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ 34, well --
03-1160 +++$+++ 1543 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Let me -- let me ask you this. If -- if your argument has force, why haven't we been having horrible example piled upon horrible example since 1981 when the EEOC took the position that it takes?
03-1160 +++$+++ 1544 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The answer to that is as follows, is that Justice -- Chief -- then Justice Rehnquist, now Chief Justice Rehnquist, wrote a dissent from denial at the time of Geller v. Markham. And in my practical experience -- and I do defend these cases for a living -- that put a tremendous chill on the plaintiffs bar, and there were very few of these cases brought. But contrary to Mr. Goldstein, who doesn't represent employers and help them plan their selection practices, employers made huge changes in the '80's and the early '90's until this Court's decision in Hazen Paper because employers were scared of these cases, and so employers started managing the numbers. There were a lot of reductions in force in the late '80's, as I'm sure this Court remembers, as our Nation went through a -- a industrial restructuring. And every one of those reductions in force, I had to sit down with my clients and break up the age of the work force into bands and see how people were going to be affected and move numbers. And the irony, of course, is -- is in doing that, employers adversely impact the very people who are benefited by the disparate impact doctrine under title VII because the Age Discrimination Act principally favors more senior, older white males, and when you try to manage your numbers so that you don't adversely impact older white males, what happens is -- is you adversely impact the new entrants to the work force who in the last 25 years have been much greater numbers of racial minorities and females.
03-1160 +++$+++ 1545 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What do you do about the EEOC's regulation? Why isn't that -- why isn't that entitled to Chevron deference?
03-1160 +++$+++ 1546 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me answer that. First of all, the -- the answer is, is you only get to Chevron deference if this statute is not subject to construction by this Court in phase one of Chevron. The first question is can this Court, looking at the language of the statute and the other legal materials, interpret the statute to have a single, reasonably clear meaning.
03-1160 +++$+++ 1547 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How can we possibly say that it's not ambiguous when we have, in another context, interpreted the identical language to permit --
03-1160 +++$+++ 1548 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Just the way this Court did last term in the General Dynamics case, which I realize you dissented on this point, Justice Scalia. But just last term in the General Dynamics case, this Court held that the phrase, because of age, is idiomatically and contextually different than the phrase, because of race or sex. And my point to Justice Breyer is -- is that the phrase, because of age, cannot properly be construed to be satisfied by a mere statistical correlation with age.
03-1160 +++$+++ 1549 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In that -- in that case, we were construing the word age and age definitely has a different meaning from sex or -- or race.
03-1160 +++$+++ 1550 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not saying that the -- the General Dynamics case disposes of this case, Justice Stevens. I'm simply pointing out that, as Justice Souter's opinion for the Court last term held, that similar language in similar statutes can have different meaning and not be ambiguous.
03-1160 +++$+++ 1551 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but not whole texts, not -- I don't remember whether it was (1)-(1) and (2) or (a) and (b), but this is not a word, age. It's -- it's lines and lines, and to -- and to say, oh, in Griggs we held that the title VII language -- this language means you can have a disparate impact theory, but in age, we're going to read those very same words to prohibit. In one sense -- one you read to say, these words permit disparate impact, and then you read the same words to say these words prohibit --
03-1160 +++$+++ 1552 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
03-1160 +++$+++ 1553 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- disparate impact.
03-1160 +++$+++ 1554 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is not quite right, Justice Ginsburg. What we're saying is -- is that the natural meaning of the phrase, because of, either in title VII or in the Age Act, is a natural, more conventional reference to intent. Nonetheless, the Court, because of the objectives of title VII and because statistical correlations could equal a functional equivalent of intentional discrimination, construed title VII to go beyond intent-based claims to encompass disparate impact claims. Our point to the Court today is -- is that neither of those two critical premises apply, that a mere correlation with age does not, in the context of age, equal a prima facie case of --
03-1160 +++$+++ 1555 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If that's so, Congress shouldn't have copied the language of title VII. It isn't a matter of it just accidentally comes out to -- to be sounding the same, as though, you know, two monkeys did it on a typewriter or something. They copied -- they copied title VII.
03-1160 +++$+++ 1556 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they copied it before Griggs was decided, indeed, before any agency of Government, before any court in this country, and before any academic in this country had floated the concept --
03-1160 +++$+++ 1557 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I think it's a fair conclusion that they meant the two to mean the same thing, whether it was before Griggs or after Griggs. They copied the language. It seems to me they wanted the two to mean the same.
03-1160 +++$+++ 1558 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think that that's wrong, Justice Scalia.
03-1160 +++$+++ 1559 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Or -- or at least it is arguably so, in which case you come back to my question. Why isn't the -- the EEOC's resolution of that ambiguity conclusive?
03-1160 +++$+++ 1560 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, let me answer that question directly and then come back and argue with you about your premise. If you turn to the appendix and on the red brief, page 56a is the regulation. And it is -- as Justice Kennedy pointed out, it is not an interpretation of the prohibition of the statute. It is an interpretation of the reasonable factor other than age provision. And as an initial point, I'd submit to you, Justice Scalia, that it's one thing to defer to an agency's interpretation of the provision that you're being asked to construe in resolving what the meaning of the provision you're being asked to construe is. It's another thing to defer to their interpretation of a distinct provision which isn't a prohibition at all. Let me move on and let's read what it says, though. What it says is -- is the following. It's interpreting a phrase that says is based on a reasonable factor other than age, which Mr. Goldstein has conceded in his brief and the petitioners in the Florida Power case also conceded is necessarily a reference to intentionality. But there's not a word in this regulation about employer intentions. Quite the contrary. And the reason why I -- I asked you to turn to page 56a of our brief rather than the quotation of the regulation in Mr. Goldstein's brief is because there's an additional sentence in the regulation that Mr. Goldstein didn't print in his brief, and that is that the EEOC said where tests are involved --
03-1160 +++$+++ 1561 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Where -- where are you reading from?
03-1160 +++$+++ 1562 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Page 56a of the red brief. I'm sorry, Justice. It's section (d).
03-1160 +++$+++ 1563 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ (e)?
03-1160 +++$+++ 1564 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ (d) as in David. What the EEOC said is that the reasonable factors other than age provision is not an intent-based provision. It's a business necessity provision. They did it, saying it means the same thing as it's -- as it means in title VII because their whole purpose here was to conform the Age Act to title VII, and they said you have to comply, where tests are involved, with the Uniform Guidelines on Employee Selection that they jointly promulgated with the Department of Labor, the Justice Department, and the Civil Service branch, whose name has escaped me right now.
03-1160 +++$+++ 1565 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Nager, I'm lost. What -- what part of 56a are you referring to? (d)?
03-1160 +++$+++ 1566 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ (d) on page 56a. I'm sorry?
03-1160 +++$+++ 1567 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Does it say what you just said?
03-1160 +++$+++ 1568 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Tests which are asserted -- the last sentence. Tests which are asserted as reasonable factors other than age will be scrutinized in accordance with the standards set forth at part 1607 of this title. Part 1607 of this title is the Uniform Guidelines on Employee Selection.
03-1160 +++$+++ 1569 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All that's true, but they -- they did promulgate this guideline, as far as -- I looked it up. At that time, they said, look, it's going to be disparate impact, and they cited Griggs. And people have put comments, which I haven't read yet, but I imagine the comments went to disparate impact. And then when they rewrote it in this form, they have a little paragraph of explanation which makes pretty clear it's meant to be disparate impact.
03-1160 +++$+++ 1570 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I have no doubt that they were assuming that this Court's decision in Griggs -- because this is what they said in their comments -- this Court's decision in Griggs required disparate impact analysis --
03-1160 +++$+++ 1571 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, all right. But I mean, they -- everybody knew what they were driving at at the time they promulgated this. So it seemed to me that if -- if we're not governed by the reg, it must be because the reg is outside the statutory authority. And it might be outside the statutory authority if in fact it embodies too tough a test.
03-1160 +++$+++ 1572 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's -- it's outside the -- the statutory authority for two reasons.
03-1160 +++$+++ 1573 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But now we've heard it doesn't embody that much of a tough test, and you know, the EEOC isn't here to tell us --
03-1160 +++$+++ 1574 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1160 +++$+++ 1575 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- what in fact it thinks.
03-1160 +++$+++ 1576 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Goldstein cited a bunch of EEOC briefs in his brief, and you'll notice he didn't quote a single part of -- of those EEOC briefs which say that the standard under the Age Act is less than the standard under the Age Act. What he cites to is a footnote in his opening brief where he quotes one sentence from an EEOC brief where an EEOC appellate lawyer said it is -- is likely that an employer will be able to prevail more often. The EEOC never said -- and -- and I litigate against them. I can tell you the only thing that they would hate less but hate a lot than your ruling in our favor that there's no disparate impact claims at all is that Mr. Goldstein has represented what their version of the defense is because that's not the Government's position.
03-1160 +++$+++ 1577 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. So we don't know what the Government's position is. They're not here. So suppose I think, one, the language is against you, the language of the statute. I do think it's against you. Two, the EEOC reg does foresee a disparate impact test. Three, the practicalities are absolutely with you, and that has to go with the scope of the statute. And four, it might be possible for the EEOC to write a reg that deals with the problems you're worried about while advancing a disparate impact test. Suppose I think all those things --
03-1160 +++$+++ 1578 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Which one --
03-1160 +++$+++ 1579 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- which are at least consistent. What would I do with this case? That's my problem.
03-1160 +++$+++ 1580 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. I -- I would submit that you should --
03-1160 +++$+++ 1581 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Where the Government hasn't appeared and told us what they want to do or what they think should be done, et cetera.
03-1160 +++$+++ 1582 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I should -- I would submit, Justice Breyer, that you should reexamine your premise that the language of the Age Act, both in section 4(a) by itself and construed in light of 4(f) and the legislative history and purposes of the statute encompass disparate impact claims.
03-1160 +++$+++ 1583 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Maybe the EEOC regulation was not so much an interpretation of the statute as an interpretation of Griggs.
03-1160 +++$+++ 1584 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, I think that's --
03-1160 +++$+++ 1585 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I mean, maybe this provision represents the judgment of the agency that Griggs applies to this other statute, and -- and I'm not sure that we owe Chevron deference to that determination.
03-1160 +++$+++ 1586 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I don't think you did, although I don't even think, frankly, from what I've read is they made the judgment. They made the assumption.
03-1160 +++$+++ 1587 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, well.
03-1160 +++$+++ 1588 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Nager, will you go to another one of Justice Breyer's premises? He says following the practicalities are with you, which you're certainly going to accept. He says I think the EEOC can deal with some of these practical problems. Do you think so? Why not?
03-1160 +++$+++ 1589 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Great question and the answer is no, they can't. And the reason is --
03-1160 +++$+++ 1590 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Give me some examples.
03-1160 +++$+++ 1591 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The reason is -- is because if you -- if you lower the prima facie case so that it's meaningless, so that it means that all a plaintiff has to do is find a selection practice -- because it's always going to correlate with age -- it means you shifted the burden to an employer in every case to establish that its -- its practice meets whatever standard your hypothesizing the EEOC might come up with later, Justice Breyer. Meanwhile, the world has to go on, and what my clients will do is as follows. They will say, well, you know, we're not going to wait to see if -- if this new practice we're going to consider is going to stand the test of time in court and under the EEOC's yet-to-be-articulated regulation. We're going to stick with the tried and true. We are not going to innovate at all, and if we're going to innovate, we're going to massage the numbers while we do it. The employers --
03-1160 +++$+++ 1592 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That would be a fairly easy burden -- a fairly easy burden to meet. And -- and to give you a fairly easy burden is consistent with the idea of trying to get employers to think about the problem. An employer who uses a different factor which is correlated with age but it's -- it's an unreasonable thing to do or it isn't the real basis hasn't thought about the harm that he's working.
03-1160 +++$+++ 1593 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, as --
03-1160 +++$+++ 1594 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So we could give you an easy burden and still accomplish the objective.
03-1160 +++$+++ 1595 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I don't want to resist the easy burden, but I do want to tell you, as Justice Scalia pointed out in the Florida Power argument, my clients do think about these things because if -- you know, if they adopt an unreasonable practice that has an adverse statistical effect and they think they're likely to get sued about it, they actually do have to worry about it because these cases are tried to juries and they have to have a reasonable explanation for what their practice because they get tried to juries as disparate treatment cases. Our point is not that statistics are not admissible. They are. Our point is -- is that they're not sufficient by themselves to create a prima facie case of -- because of age, as it would be in a title VII case where we wouldn't expect to see the statistical disparity. So it's fair to say that there's a reasonable adverse inference to be drawn from the existence of the disparity itself. That is the premise articulated by this Court as to why the disparate impact doctrine can -- can at -- the prima facie case aspect of it equals a prima facie case of discrimination because of race or sex. That is not true here. Now, it is also the case that when this Court adopted the disparate impact doctrine, it said it placed an enormous weight on the objectives of title VII's prohibitions, which it construed to be, as Justice Ginsburg pointed out, eliminating these built-in headwinds. Well, when -- when the Secretary of Labor proposed the Age Discrimination Act, he gave a report to Congress and he said age discrimination is different than race and sex discrimination. It is not based on animus. It is -- it is not dealing with a group of individuals who have suffered cumulative disabilities over their lifetime because of historic discrimination. He said it's -- the problem of age discrimination is the problem of over-generalization by an employer.
03-1160 +++$+++ 1596 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But he gave the very same example that was Griggs. He gave the example of the high school diploma because he thought that people of a certain age, when there wasn't such general education as there is today, might not have a high school diploma to a much higher extent than the people who came -- the generation who came after.
03-1160 +++$+++ 1597 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But his solution was not a disparate impact doctrine. His solution was --
03-1160 +++$+++ 1598 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it's a little, and you said his solution was we're going to have training and manuals and all. But that's not altogether clear.
03-1160 +++$+++ 1599 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, take a look at the statute, Justice Ginsburg. Please look at page 15a and 16a in the red brief. And if you look at section 621(b) -- it's at the bottom of page 15a of the red brief -- Congress said what the purposes of the Age Discrimination Act were, and it had three, but it's only addressed one through the prohibition. The second one was to prohibit arbitrary age discrimination in employment. The other two were to promote employment of older persons based on ability and to help employers and workers find ways of meeting problems arising from the impact of age on employment. And if you turn the page and look at section 622(a)(1), the very first thing Congress mandates that the Secretary shall do to address its other two purposes, to undertake research and promote research with a view to reducing barriers to the employment of older persons and the promotion of measures for using their skills. What the Secretary of Labor's report goes on at length about is it identifies all kinds of factors, neutral and non-neutral --
03-1160 +++$+++ 1600 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But it doesn't say there that that is to implement the first -- that -- that only the second one, to prohibit arbitrary age discrimination.
03-1160 +++$+++ 1601 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does -- what it -- you're right it doesn't say the following. It doesn't say, and we don't want disparate impact, because in 1967 the -- the concept of disparate impact as a legal theory was unknown to Congress, to the courts, and to the administrative agencies. But what the Secretary of Labor did do in his report is, after identifying all of the problems that adversely affect older workers, he says, I recommend a two-pronged approach. One prong is prohibitory. It's coercive. You shall not -- we'll prohibit arbitrary age discrimination in employment, which the Secretary explained to Congress, and this Court last term said itself, means a -- is a -- is -- is the use of age as the decision-making criteria. He said, separately we should have a series of programs that seek to enlarge the abilities of older workers, that seek to educate employers about the abilities of older workers through non-coercive programs. And so what this statute does -- and this Court has said it in several of its cases -- this statute was based upon the Secretary of Labor's report. The Secretary wrote the bill, and although Congress amended it in other ways, it didn't amend any of these provisions. That this statute took a more nuanced approach to deal with a distinctly different problem, and the problem --
03-1160 +++$+++ 1602 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Nager, at the end of his report, Secretary Wirtz said the -- a purpose, to eliminate discrimination in the employment of older workers, it would necessary not only to deal with overt acts of discrimination, but also to adjust those present employment practices which quite unintentionally lead to age limits in hiring. And your point, as I understand it, yes, that was one of his purposes, but he meant that one to be accomplished with ERISA and other things like that.
03-1160 +++$+++ 1603 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the quote that you just gave says that there are express uses of age and there are non-age reasons that lead to the use of express limits of age, for example, the hypothetical that Justice Scalia gave with Mr. Goldstein, saying, well, I wouldn't want to hire someone who's going -- who tells me they're going to retire a year from now. But if he said I'm not going to hire you because you're 64 because I know you're going to -- people retire at 65 mostly, that would be the same kind of non-age-based motive that nevertheless used age as a decision-making criteria. That's what that quote is referring to. If you -- if you -- the second half --
03-1160 +++$+++ 1604 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The quote -- the reference to employment practices which quite unintentionally lead to age limits in hiring. I see what you're saying.
03-1160 +++$+++ 1605 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. And then -- and -- and the point here is this was thought out. It wasn't thought out as disparate treatment versus disparate impact because the concepts didn't exist at the time, but it was thought out as arbitrary age discrimination versus other factors that adversely bear on older workers. The prohibitions went to arbitrary age discrimination and didn't go to the adverse impacts. It was the -- the non-coercive measures that went to the adverse impacts. Let me go also --
03-1160 +++$+++ 1606 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No how does that work? Because the -- the particular language, it shall be unlawful for an employer to classify his employees in any way that would adversely affect an individual's status -- his status, it says -- as an employee because of such individual's age. Now, that sounds as if it's driving right at disparate impact. It's -- it's unlawful to classify an employee in any way that would adversely affect him because of his age. That's what it says. And then you turn to the defense and it says, but there's the defense with a differentiation, i.e., the classification is based on reasonable factors other than age. And therefore it would sound as if it says, look at the factor and ask is the factor reasonable. If so, the employer wins if it's really based on that factor.
03-1160 +++$+++ 1607 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Two points?
03-1160 +++$+++ 1608 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
03-1160 +++$+++ 1609 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ One is -- is --
03-1160 +++$+++ 1610 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How do we get out of that language?
03-1160 +++$+++ 1611 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we love the language. We don't have to get out of it. It says because of age. That's a reference, a traditional, conventional reference --
03-1160 +++$+++ 1612 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, no, but it says -- it says that would adversely affect him because of his age.
03-1160 +++$+++ 1613 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the first -- before the comma is the statement both of the action of the employer and the injury that it has to cause in order for a claim to exist, and then there's another requirement. The requirement is -- is that the action and the -- the effect of -- the injury that's affected by it be -- because of age. That is a conventional reference to intent. And the confirmation that it's a reference --
03-1160 +++$+++ 1614 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Oh, no. It's not intent because to read it as part of classifying, which you'd have to do to get it because of intent, you'd have to say to classify his employees because of such individual's age. Now, that's a little tough because you're talking about employees, and then you go to such individual.
03-1160 +++$+++ 1615 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it -- the phrase, because of age, modifies all of the words that precede the comma that separates the two.
03-1160 +++$+++ 1616 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Segregate or classify. You want to read it all the way up back to segregate or classify.
03-1160 +++$+++ 1617 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I think it does modify the verb, but --
03-1160 +++$+++ 1618 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It would be good if you had a comma after employees. I -- I might go along with you if there was a comma after -- to limit, segregate, or classify his employees, comma, in any way which would deprive or tend to deprive any individual of opportunities or otherwise affect his status as an employee, comma, because of such individual's age -- go way back to before the comma. I can see that, but without the comma, that's -- that's an awful travel back to limit, segregate, or classify.
03-1160 +++$+++ 1619 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I think that's the grammatically correct way to read it. But even -- even if it was just modifying the adversely affect --
03-1160 +++$+++ 1620 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It would be the natural way.
03-1160 +++$+++ 1621 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- it would still be because of age.
03-1160 +++$+++ 1622 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The natural way -- wait. The natural way is to read it as modifying to deprive --
03-1160 +++$+++ 1623 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right.
03-1160 +++$+++ 1624 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- or otherwise adversely affect.
03-1160 +++$+++ 1625 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Exactly.
03-1160 +++$+++ 1626 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's the natural way to read it.
03-1160 +++$+++ 1627 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It is.
03-1160 +++$+++ 1628 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now --
03-1160 +++$+++ 1629 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ One still --
03-1160 +++$+++ 1630 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- suppose we read it that way. Then what do you say?
03-1160 +++$+++ 1631 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You -- even if you read it that way, it still says, comma, because of age, and the because of age is a reference to intent, and the confirmation of that, Justice Breyer, is the defense that you keep pointing to because as Mr. Goldstein conceded in his brief and as you pointed out in your questioning, it says, is based on. That is also a reference to intent. This statute is preoccupied with intent. What section 4(f) was about was identifying the situations in which age would be used but it, nonetheless, wouldn't even be arbitrary --
03-1160 +++$+++ 1632 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Indeed, and I guess what supports that reading is that intent -- intent to discriminate in hiring -- the intentional discrimination because of age in hiring is covered by (2) rather than (1) isn't it?
03-1160 +++$+++ 1633 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no, no.
03-1160 +++$+++ 1634 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You think -- I mean, if -- if you have a rule -- if you have a rule that you won't hire any employee -- I mean, we -- we were talking earlier about the -- the reason -- (2) reads employees in the plural, and (1) reads refuse to hire or discharge any individual. So if you have any intentional discrimination that is against a class, it comes under (2) rather than (1).
03-1160 +++$+++ 1635 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I had never thought of construing the --
03-1160 +++$+++ 1636 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that wrong? Well, I thought -- I thought that's what -- what counsel for the petitioner was telling us.
03-1160 +++$+++ 1637 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if -- if he did, he's only strengthened our case. What I want to say to the Court is -- is that both of those provisions are modified by the phrase, because of age. This Court in Hazen Paper construed the because of language in 4(a)(1) as a reference to intent and said statistical correlations with age are not sufficient to establish because of age within the meaning of section 4(a)(1). And the presumption of uniform usage -- we're entitled to point to it as well that the presumption of uniform usage which would be that the phrase, because of age, in section 4(a)(2) is also not satisfied by a mere statistical correlation with age. And the reason why title VII is different than the Age Act -- I keep coming back to this because this is so critical, Justice Breyer -- is that the premise of the Court's statistical cases under title VII is that it's -- it presumes that there's no inherent difference in ability between the races and the genders, whereas you know and I know that there is a difference in an -- an inherent correlation between abilities and skills, between people of different ages statistically. And so that whereas in the -- in the race and sex context, a statistical disparity by itself points out that there's something suspect and so would justify putting the employer to the burden on those occasions which would happen. And by definition, I think you and I both think, Justice Breyer, that it's not all that often that you're going to have these statistical disparities in the race and sex context. In the age context, they happen all the time. So it's -- it -- there's no basis for suggesting that a statistical correlation by itself creates something suspect, and it would rob the notion of a prima facie case of any meaning to say that -- that a statistical correlation with age, which we expect to see all the time, would establish a prima facie wrong. And, of course, the Secretary of Labor wrote a report telling Congress that race and sex were different than age for this very reason.
03-1160 +++$+++ 1638 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But in your view, is based on reasonable factors other than age strictly an affirmative defense?
03-1160 +++$+++ 1639 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think that it is -- it was intended to address mixed motive cases. That's why it was added. I think it is a indicia of the fact that this statute is concerned with intent in its prohibitions only. I'm not saying it's conclusive of that, but I'm saying it's another indicia, that if you look at all of section 4(f), it's about the instances in which age is being used --
03-1160 +++$+++ 1640 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But is it an affirmative defense?
03-1160 +++$+++ 1641 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I don't think that it is, and I -- I --
03-1160 +++$+++ 1642 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, did you challenge the sufficiency of this complaint on the ground that it did not allege that the -- the program was not based on -- was based on factors that were unreasonable?
03-1160 +++$+++ 1643 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I didn't handle the case in the trial court, but I believe that the -- our -- our client denied all of the allegations in the complaint and affirmatively said this was -- its salary program was a reasonable factor other than age, yes. And certainly in the courts below, the reasonable --
03-1160 +++$+++ 1644 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What I'm trying to think through is whether that issue is one that can be resolved on the pleadings, or does it always require a trial.
03-1160 +++$+++ 1645 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the question of whether or not the reasonable factor other than age provision, when read in conjunction with section (a)(4) -- 4(a) shows that this is an intent-based statute, as a pure legal question, can be judged on the pleadings. The -- the question of whether or not a -- in a particular fact situation something is a reasonable factor other than age or not I think would be subject to what the proof is. It might be undisputed.
03-1160 +++$+++ 1646 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ On your reading, I just don't see that there's any function. I mean, if disparate impact is out of it, then -- then what work is there for the reasonable factor other than age to do?
03-1160 +++$+++ 1647 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was added in as a safe harbor to address mixed motive cases. There was a concern at the time that since employers had been using age as the decision-making factor, that they would continue to think about it, and the question was raised, well, would that mean that the very fact they thought of it, even though they had a nondiscriminatory reason, mean that they still violated the act? And the Secretary said, no, we've put in this reasonable factor other than age provision to make it clear. It -- it was simply a safe harbor.
03-1160 +++$+++ 1648 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Nager. I think you've answered the question. Mr. Goldstein, you have 4 minutes, and let's make it 4 and a half.
03-1160 +++$+++ 1650 +++$+++ FALSE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens. I want to start with our affirmative case which is one of stare decisis and then go to what I think is the thing that might concern the Court and that's the practicalities of implementing our rule. Our stare decisis case I think is fairly decisive. The language of title VII was the model for the ADEA. It runs all the way through the same in subsection (a)(2). This Court construed the text of the statute to give rise to disparate impact liability, and there are six cases of this Court that say when the language is the same, because one was derived from the other, we give them the same meaning. Now, I take it that the respondents have three answers to that. The first is they attempt to rewrite the rationale of Griggs and say Griggs really isn't so much about the text of the statute. It's what Congress was getting after, and this Court in Griggs was principally concerned with the fact that, look, in the context of age and sex discrimination, there's no legitimate correlation between an -- a disparate impact and a legitimate employer policy. That is not, in fact, what the rationale of Griggs is. The rationale of Griggs is that it doesn't matter to the employee if you are purposefully discriminated against or accidentally discriminated against. Congress was concerned with the effects of discrimination. And this Court reached that conclusion based on the text of the statute. If I could read from Griggs, quote, the objective of Congress in the enactment of title VII is plain from the language of the statute. That's the same language as in our statute. The thrust of section 703(a)(2) was to address, quote, the consequences of employment practices, not simply the motivation. This Court subsequently reiterated twice that disparate impact comes from the text of the statute, not from the air. Those two cases are quoted at page 9 of our reply brief and they resolve all doubts about commas and because of or anything like that. The Court in both Connecticut v. Teal and Justice O'Connor's opinion for the Court in Watson tied it directly to the statute. If I could just read the Watson example. Again, they're quoted in full. In disparate impact cases, quote, the employer's practices may be said to, quote, adversely affect an individual's status as an employee because of such individual's race, color, religion, sex, or national origin. Now, the second argument they have -- and this was the Fifth Circuit's argument -- is the RFOA provision exists in the ADEA, not in title VII. I do not understand how the RFOA provision -- if it means anything, it doesn't help us. Again, let me take you back to the text. It's on page 1 of the blue brief. It's in a few other places, but it's there. It shall not be unlawful for an employer to take any action otherwise prohibited under subsection (a) where the differentiation is based on reasonable factors other than age. The necessary premise of that provision is that something will be otherwise unlawful when it's based on something other than age. It can't be talking about disparate treatment. The only kind of liability that involves factors other than age is impact. And then on top of that, Congress required that the employer's conduct be reasonable.
03-1160 +++$+++ 1651 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What of dual motive?
03-1160 +++$+++ 1652 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the statute refers to something otherwise unlawful, it can't be talking about Price Waterhouse mixed motive. Price Waterhouse mixed motive cases establish liability; i.e., you're not liable if you had another reason for doing it. But the premise of (f)(1) is that it's already otherwise unlawful, this is a defense to that. The third thing that they say is that in Hazen Paper this Court construed the because of language in (a)(1) not to refer to impact. The critical difference is that the (a)(1) language does not include the -- the clause that refers to the impact on the employee that Justice Stevens and Justice Breyer talked about with Mr. Nager. They're structured very differently. As to the practicalities, let me just say this has been the rule for a quarter century of the EEOC. It was the rule in every circuit until 1993. It is still the rule in three circuits. The notion that there is a big problem with administering it and that the EEOC can't recognize the -- as it has in all the examples we cite, that it's easier for an employer to prevail in the ADEA context is not accurate. I also want to just agree with Justice Breyer, that an important part of impact liability is just making employers think about it. And that comes from Justice Kennedy's opinion in McKennon where he said that disparate impact, quote, acts as a spur or catalyst to cause employers to self-examine and self-evaluate their employment practices to endeavor to eliminate, so far as possible, the last vestiges of discrimination.
03-1160 +++$+++ 1653 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Goldstein. The case is submitted.
03-1164 +++$+++ 1657 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We will now hear argument in Veneman against the Livestock Marketing Association. Mr. Kneedler.
03-1164 +++$+++ 1659 +++$+++ FALSE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: Congress enacted the Beef Promotion and Research Act in 1985 in the midst of a serious depression in the beef industry. The beef industry found itself unable to respond to that situation through the promotion of its products. Congress responded to that situation by establishing a government program of promotion, research, and consumer information. In the Beef Act, Congress prescribed the central message for advertising under the Act, Congress established a government body, the Beef Board, to administer and implement the program, and it placed the program under the control of a Cabinet officer, the Secretary of Agriculture.
03-1164 +++$+++ 1660 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Kneedler, will you tell us how this case differs, if it does, from what was before the Court in United Foods? What meaningful distinctions do you find?
03-1164 +++$+++ 1661 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the important distinction is that the two grounds that -- on which we are defending the statute here were not addressed in United Foods. In particular, the government speech argument, that what I've just said goes to, that the Court specifically did not address because it had not --
03-1164 +++$+++ 1662 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We've never addressed that in --
03-1164 +++$+++ 1663 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In none of these cases, and --
03-1164 +++$+++ 1664 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in these cases --
03-1164 +++$+++ 1665 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
03-1164 +++$+++ 1666 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- have we?
03-1164 +++$+++ 1667 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Court has not. And we think that that is -- the critical point about this -- about this case and these programs, these are government -- these are programs of government speech. As I said, Congress, itself, prescribed the central message. Congress established the government board, all of whose members are appointed by the Secretary, to administer it.
03-1164 +++$+++ 1668 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does it remain government speech even if you don't say, "This is your government speaking"?
03-1164 +++$+++ 1669 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It --
03-1164 +++$+++ 1670 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If you say, you know, "America's cattlemen are speaking," is it government speech?
03-1164 +++$+++ 1671 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does -- for purposes of this Court's government speech doctrine, it does. And I think --
03-1164 +++$+++ 1672 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why is that? I mean --
03-1164 +++$+++ 1673 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the Court -- the Court's decision in Rust, I think, is the best illustration of that.
03-1164 +++$+++ 1674 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but Rust did not -- Rust was not a case in which the doctor was saying, "This is my personal opinion, not the government's." And here, as Justice Scalia pointed out, there is an affirmative effort to say, "This is -- this is paid for by" whatever it's called, the cattlemen's group or the beef group, which affirmatively indicates that it's not government speech.
03-1164 +++$+++ 1675 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it -- all those statements say -- and there are advertisements in the record that say that the advertising is funded by America's beef producers, which is, of course, accurate, because they --
03-1164 +++$+++ 1676 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it's accurate --
03-1164 +++$+++ 1677 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- they pay for it.
03-1164 +++$+++ 1678 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- but it also contains the implication that who -- he who pays is the person whose speech is being broadcasted.
03-1164 +++$+++ 1679 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but, again, in Rust, the doctor who spoke -- I think the patient who went to see the doctor for counseling would have -- would have assumed or believed that the doctor was -- in the immediate encounter, that the doctor was speaking, and yet the Court, in its subsequent cases, has regarded Rust as a situation of government speech. But the important point about what you've just asked is that any concerns about the tag line in the advertising does not go to the constitutionality of the statute or the beef order. Neither the Act nor the order requires that in the advertising. And if the Court was to perceive that as a problem, the right remedy would not be to invalidate the Act, but to, instead, provide that there should be some different identification --
03-1164 +++$+++ 1680 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but some people --
03-1164 +++$+++ 1681 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- on the advertising, itself.
03-1164 +++$+++ 1682 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- may be more resistant to an -- to an ad that says, "Your government wants to eat -- wants you to eat more meat," than they are to an ad which say, "The meat producers would like you to eat more meat."
03-1164 +++$+++ 1683 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- and I think in Rust, some people would have been resistant to the idea that your government wants you to engage in family planning, but what the -- what the Court said about Rust was that the government had established a program with a central message about counseling. That was then carried out by private individuals. Here, this case is much stronger than Rust.
03-1164 +++$+++ 1684 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but if you -- if you say the Act can be -- say, because this is just an as-applied challenge, you're asking us to assume that we can put on a label that's not true, "This message is brought to you by your friendly Department of Agriculture." That isn't accurate.
03-1164 +++$+++ 1685 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it would be accurate --
03-1164 +++$+++ 1686 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you're having us save the statute by just putting a label on it that isn't accurate.
03-1164 +++$+++ 1687 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they're -- I'm sure that a label could be devised that would -- that would be accurate. The -- first of all, they are approved -- specifically approved by the Department of Agriculture. The -- certainly, the Act and regulations provide that the Secretary must approve every contract, every project for advertising. And, beyond that, the USDA approves all advertising, all copy --
03-1164 +++$+++ 1688 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, Mr. Kneedler --
03-1164 +++$+++ 1689 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that is actually to be used, so there is specific approval by the Secretary.
03-1164 +++$+++ 1690 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there is -- there's another tape put out by the government, on meat, and that -- what is the government speech? Usually, the government has a position, and is presenting it. Here, we have America beef producers has a label on -- "Eat meat." But if you went to the Surgeon General, probably that message would be "Eat meat moderately." So what is the government speech? I don't know another case involving a claim of government speech where the message that you are saying is the government's is not the message that the government is putting out when it's dealing with its concern for public health.
03-1164 +++$+++ 1691 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the government, in the concern -- in situations where it may be concerned about public health, doesn't say, "Don't eat meat." It -- there may be nutritional standards. And USDA does have nutritional standards that it advises people to adhere to. But what the government is doing here is facilitating a situation, facilitating promotion of a commodity. There is a structural defect in a market like -- a market for a fungible commodity, and I think it's important to understand what Congress was responding to here. When you have a fungible commodity, when you have a lot of small producers, no one of those producers has an incentive to advertise --
03-1164 +++$+++ 1692 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Kneedler, is meat fungible? Or -- I think there are some steak houses that might disagree with that.
03-1164 +++$+++ 1693 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there are -- there are -- there are, to be sure, different cuts of meat, but the -- but the basic --
03-1164 +++$+++ 1694 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, even quality of meat within the -- some is tougher than others.
03-1164 +++$+++ 1695 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
03-1164 +++$+++ 1696 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's not like milk or wheat.
03-1164 +++$+++ 1697 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But Congress could reasonably determine, under this statute, that there are -- that there are -- that beef has many things in common, that it is a generic problem -- or generic food or generic commodity, and the industry --
03-1164 +++$+++ 1698 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ At some level, it certainly is, I suppose. But, just as in wheat or corn, there are different brands and different qualities. But I suppose it's still fungible, in a broad sense.
03-1164 +++$+++ 1699 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is fungible in --
03-1164 +++$+++ 1700 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask you whether, in deciding the government's speech doctrine, is it the Secretary's formal right to control, as set out in the statute, that we look to, or do we look to the Secretary's actual record of oversight and participation?
03-1164 +++$+++ 1701 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We think the -- we think the formal legal control is sufficient. And it -- the Secretary has the responsibility to approve -- under the statute -- to approve budgets, to approve contracts, and to approve projects. And USDA does, in fact, go beyond that and determine whether particular advertisements will be -- will be issued. But we think it's only necessary to look what the statute requires. But the testimony in this case shows that, in any event, USDA is extensively involved in the development of the advertising under this statute, by extensive consultations with the Operating Committee and the Beef Board in the development of the project. So there -- this is an integrated effort within the Department of Agriculture.
03-1164 +++$+++ 1702 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it at all possible to do here what has been done in the union cases, where -- I mean, it's pretty hard for me to believe that there aren't -- that meat -- that cattle growers don't, by and large, like beef. I mean, maybe they have a ideological objection to people eating beef, but I doubt it. They probably object to some content. So can you segregate that? I mean, in the union cases, the bar cases, they try to segregate where there really is an ideological objection from the cases where really all that the objector wants is not to pay the money. And so they work out a system. You know, you pay so much for your dues anyway, you just don't pay that pro rata amount, where you really have an ideological objection.
03-1164 +++$+++ 1703 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that --
03-1164 +++$+++ 1704 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it possible to work that out?
03-1164 +++$+++ 1705 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What has -- what has been proposed by the -- by the Respondents in this case, of course, is to make it voluntary, so that people --
03-1164 +++$+++ 1706 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but, I mean, if you make it --
03-1164 +++$+++ 1707 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- can opt out.
03-1164 +++$+++ 1708 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- totally voluntary, what you're going to discover is, all of a sudden, the beef people, rather than write a check, will say, "Oh, you know, I make -- I raise cattle, but I don't think people should eat beef."
03-1164 +++$+++ 1709 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
03-1164 +++$+++ 1710 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That saves them the money.
03-1164 +++$+++ 1711 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, and I --
03-1164 +++$+++ 1712 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I tend to doubt that that's their view.
03-1164 +++$+++ 1713 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, and --
03-1164 +++$+++ 1714 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Some may view -- object to certain content. So I'm asking if it's feasible to work out --
03-1164 +++$+++ 1715 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it -- I think it would not be feasible. It would -- it would enmesh the Department in difficult judgments and time-consuming --
03-1164 +++$+++ 1716 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It would be -- in the union cases, it's hard enough. It's a -- the good-of-the-order exception is the way it works in the union. And in the bar thing, I think it would be hard to --
03-1164 +++$+++ 1717 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. And the Court made a similar point in Southworth, where it specifically declined to impose, on the university, a requirement to make judgments that would enable people to opt out in particular cases. And we think that the problem here would be even greater. But they would be particularly great under Respondents' proposal that individuals who don't want to pay, without even having to express an objection, because the whole system would collapse. This is a classic collective-action, free-rider problem.
03-1164 +++$+++ 1718 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Kneedler --
03-1164 +++$+++ 1719 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What the numbers --
03-1164 +++$+++ 1720 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- can I come back to Rust versus Sullivan? You say that that was a government speech case? I had not recollected it as a government speech case.
03-1164 +++$+++ 1721 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court --
03-1164 +++$+++ 1722 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This is government subsidizing speech by private organizations, and it chose to subsidize one type of speech, but not another.
03-1164 +++$+++ 1723 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes --
03-1164 +++$+++ 1724 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did we say, in the opinion, that this was --
03-1164 +++$+++ 1725 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not in Rust, but in the Court's subsequent cases, Rosenberger, Southworth -- in particular, in Velazquez -- this Court said that Rust has come to be understood by the Court as a government speech case, because the government prescribed the message, and it's government speech whether or not the government speaks for itself or enlists others to transmit the message.
03-1164 +++$+++ 1726 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, for the precise purpose at issue here, I think it makes a lot of difference. You can fund private people for some things, and not fund them for others, and it doesn't make whatever they say government speech. I think that's a --
03-1164 +++$+++ 1727 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
03-1164 +++$+++ 1728 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I think that's a really --
03-1164 +++$+++ 1729 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but there's really no --
03-1164 +++$+++ 1730 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- strong proposition, that whenever you're subsidizing any private enterprise, the speech of that private enterprise becomes public speech.
03-1164 +++$+++ 1731 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's really no need to get to that point here, because the Beef Board, which is the entity that does the speaking, is, I think, unquestionably a government body. It's established by special statute under the Lebron test. All of its members are appointed by the --
03-1164 +++$+++ 1732 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's fine. But what you were using Rust for was to establish the proposition that in order to be government speech, it -- you don't have to -- you don't have to say, "This is the government speaking."
03-1164 +++$+++ 1733 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think --
03-1164 +++$+++ 1734 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And Rust doesn't stand for that.
03-1164 +++$+++ 1735 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Right -- I think, as this Court has come to explain Rust, as being a species of government speech -- but, as I say, there is no need -- there is no need for the Court to get to that situation. And the fact that the government is the one in control of the speech here critically distinguished -- distinguishes this case from cases like Keller and Abood.
03-1164 +++$+++ 1736 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ This is a question perhaps more for the Respondent than for you, but I would like your comment on it. Suppose the statute were changed and there was a dollar-a-head assessment on beef, and it just went into the general funds of the United States Treasury, and then they used part of that money -- they had more money for beef advertising, and the government did the advertising. What would the Respondents say about that?
03-1164 +++$+++ 1737 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think -- I think they would say that that -- that there's something different about general taxes and excise taxes or focus taxes. But I don't think there's any basis in this --
03-1164 +++$+++ 1738 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But why can't --
03-1164 +++$+++ 1739 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in history or --
03-1164 +++$+++ 1740 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- why can't you just do that? Or is your answer to me, "Well, then, it's just formalism, and you might as well rule for me now?"
03-1164 +++$+++ 1741 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, do -- maybe I misunderstood your question.
03-1164 +++$+++ 1742 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why can't the government --
03-1164 +++$+++ 1743 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Were you asking why focus --
03-1164 +++$+++ 1744 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- why can't the government adopt my solution?
03-1164 +++$+++ 1745 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- and maybe I misunderstood. Was it -- was it paying for it out of general taxes or taking this money and putting into the focus --
03-1164 +++$+++ 1746 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's put into the general fund of the -- of the Treasury.
03-1164 +++$+++ 1747 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- they may say that that's the same thing, but I -- they were drawing a distinction between paying for it out of general funds -- income tax or something -- that we all would pay for. They say that's the solution, rather than having the industry, that benefits from the advertising, pay for it. Not only does the industry benefit --
03-1164 +++$+++ 1748 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But then you'd come within the protections of Frothingham versus Mellon, and Massachusetts versus Mellon, if you did it that way.
03-1164 +++$+++ 1749 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, there would be standing objection -- objections at that point, but we think, in terms of the merits of the argument, the notion that a person would have a First Amendment objection to paying an excise tax because of the uses to which the excise taxes are being put is really extraordinary and finds no basis in cases like Abood and Keller, which have to do with private association -- an association with private speech --
03-1164 +++$+++ 1750 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But then you could --
03-1164 +++$+++ 1751 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- no government speech.
03-1164 +++$+++ 1752 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- simply restructure this Act to get to the result you want.
03-1164 +++$+++ 1753 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. If that -- but the funds that are raised are public monies. They don't go in -- they're not deposited in the Treasury. But in the Joint Appendix, there is a reproduced -- an AMS, Agricultural Marketing Service, circular that explains how these public monies -- and calls them "public monies" -- are to be disposed of. And it describes the Beef Board, this governmental body that receives the money, as being the custodian for the Agricultural Marketing Service and handling these monies. And Congress and the Secretary have imposed strict limitations on how those funds can be deposited. So whether they go into the general Treasury or whether they're handled in this way is really a matter of fiscal and revenue and internal governmental policy that I don't think that --
03-1164 +++$+++ 1754 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Kneedler, this theory is one that wasn't brought up at all in Wileman, if I remember correctly. And in United Foods, it was brought up too late, so the government -- so the Court didn't entertain it. The argument that you're making today, I take it, would necessarily displace United Foods as having any kind of a continuing --
03-1164 +++$+++ 1755 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, because the government did not reach the government speech -- or the Court did not reach the government speech argument in United Foods. And, in fact, United Foods is back, on remand. That was a reversal of summary judgment for the government. It's back, on remand, and is being stayed, pending the outcome of this case on government speech. So there would not be an inconsistent result in --
03-1164 +++$+++ 1756 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You wouldn't want to treat beef and mushrooms inconsistently. [Laughter.]
03-1164 +++$+++ 1757 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
03-1164 +++$+++ 1758 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there is --
03-1164 +++$+++ 1759 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I think --
03-1164 +++$+++ 1760 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the public perception of these ads -- it says, "Eat meat" -- it's quite different from saying, "Your government wants you to buy meat." And the United States isn't saying that. So --
03-1164 +++$+++ 1761 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But what the -- what the United States is doing is responding to this classic collective-action problem by establishing a government program to meet the situation where the industry, itself, will -- is unable to conduct the advertising because of -- because of, what I said, the fungibility of the product --
03-1164 +++$+++ 1762 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But then --
03-1164 +++$+++ 1763 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and all.
03-1164 +++$+++ 1764 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- isn't it more realistic to describe this as the government facilitating the private speech of the many people in this industry who don't have a big budget to advertise on --
03-1164 +++$+++ 1765 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think --
03-1164 +++$+++ 1766 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- on their own?
03-1164 +++$+++ 1767 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- doctrinally, it is government speech. It has the -- it has the benefit of enabling the promotion that would have happened in the industry, but for the collective-action problem to occur. But it is government speech under this Court's decision. If I may --
03-1164 +++$+++ 1768 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you want to save your time?
03-1164 +++$+++ 1769 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Please.
03-1164 +++$+++ 1770 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Garre.
03-1164 +++$+++ 1772 +++$+++ FALSE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens, and may it please the Court: The First Amendment does not prevent the government from speaking out in order to revive and expand the market for the nation's most important agricultural product.
03-1164 +++$+++ 1773 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If we can just continue on government speech, because that's where --
03-1164 +++$+++ 1774 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-1164 +++$+++ 1775 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- where we left off. It seems to me there is something offensive about making a particular portion of the public pay for something that the government says.
03-1164 +++$+++ 1776 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy --
03-1164 +++$+++ 1777 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It ought to be out of the general fund.
03-1164 +++$+++ 1778 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, the assessments in this case are imposed on a class of people who sell particular commodity -- cattle. In that respect, they're no different than the types of assessments the Federal Government has been imposing for centuries on the same of commodities, from the first tax the Federal Government imposed on whiskey to the excise taxes on gasoline producers today. And Respondents concede you could do this out of general tax revenues. They concede that you could have a government speech program funded by excises on certain commodities, like cigarettes or alcohol. There is no basis under the First Amendment to carve out a different rule in the case of beef.
03-1164 +++$+++ 1779 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What I'm saying, it seems to me that the government speech doesn't seem to me to advance your argument very much, because it has problems of its own.
03-1164 +++$+++ 1780 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we agree with the government speech doctrine, although we also think that the Court can uphold the statute under the intermediate-scrutiny analysis. It makes perfect sense for the government to be speaking out in order to correct the market problem that Congress identified in the midst of a two-decades-long depression in the beef industry. Take the BSE incident last year. BSE imposes a potentially catastrophic and overnight impact on the beef industry. In response to that threat, because of the beef checkoff program, the government was able to respond immediately with the funds necessary to respond on a national scale, not only through promotion -- and this is an important part in which this case is different from United Food -- only about half of every checkoff dollar goes to promoting beef through commercial advertising, like the "Beef, it's what's for dinner" campaign. The rest of that dollar goes to things like producing information to consumers about the safety of U.S. meat, the -- addressing the health concerns imposed by BSE and other potential diseases, like E. coli; going to open up foreign markets so that we can export beef -- beef exports have risen dramatically under this program -- and going for things like research in order to identify an early-detection system for BSE. In United Foods, this Court emphasized, at least three times throughout its opinion, that the only aspect of the program that was -- the dollar was being collected for was commercial advertising. And, Justice Stevens, I think you emphasized that in your concurrence, as well. And this program is much more holistic --
03-1164 +++$+++ 1781 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but, I mean, that -- the part that's good can't save the whole thing, any more than in the -- in the union case, the fact that some -- the union dues could be used for some permissible purposes, saved the dues that were being used for impermissible purposes. You --
03-1164 +++$+++ 1782 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the union --
03-1164 +++$+++ 1783 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You don't want to just save half of this program, do you?
03-1164 +++$+++ 1784 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, certainly saving half is better than scuttling the whole --
03-1164 +++$+++ 1785 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, all right.
03-1164 +++$+++ 1786 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- thing, Justice Scalia. But the union case is -- the speech that was -- that this Court held could not be funded -- and, after all, in those cases, the message was controlled by a non-government entity, the union or the state bar. But there, you're talking about political and ideological speech. Here, we're talking about beef production -- producing --
03-1164 +++$+++ 1787 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what's the objection to, whenever you have an ad, you put a little thing in the corner, and it says, "This advertisement is paid for by the beef industry under a regulation, X-23, of the Department of Agriculture"?
03-1164 +++$+++ 1788 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, the program would do that if this Court held it was necessary --
03-1164 +++$+++ 1789 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it wouldn't --
03-1164 +++$+++ 1790 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- under the First Amendment.
03-1164 +++$+++ 1791 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- tough, would it?
03-1164 +++$+++ 1792 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
03-1164 +++$+++ 1793 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All you'd have to do is have a little thing -- and it would just say, "USDA requires this, under the program," and then the whole problem goes away.
03-1164 +++$+++ 1794 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. But let me make a few additional --
03-1164 +++$+++ 1795 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right.
03-1164 +++$+++ 1796 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- points. First, as Mr. Kneedler emphasized, nothing in the statute, the regulation, requires the ad to say that they're funded by America's beef --
03-1164 +++$+++ 1797 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I -- we realize that. I mean, we're getting into it because there's at least a potential constitutional problem here.
03-1164 +++$+++ 1798 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And let me make another --
03-1164 +++$+++ 1799 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ As you respond to Justice Breyer's question, would you go the step further and say, Why isn't one possible solution to this difficulty we're having about government speech a requirement that if you want to justify it as government speech, you put in the advertisement, "This is the government's position, paid for by the beef producers"?
03-1164 +++$+++ 1800 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The government isn't hiding from --
03-1164 +++$+++ 1801 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No --
03-1164 +++$+++ 1802 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the messages in its pro-beef ads. It -- Justice Souter, the government could do that, but it's not hiding from this message. We think that if the Court --
03-1164 +++$+++ 1803 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It seems to be. In fact, there was an indication in the brief that the government had taken the position that if the government came out front and said, "Hey, we're urging you to eat more meat," that, in fact, it would be very unsuccessful in doing it. It seems to want to hide the ball here.
03-1164 +++$+++ 1804 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the government does do that, Justice Souter. Last year, during the height of BSE crisis, the President, from his ranch in Texas, urged Americans to eat more beef and told Americans that beef was safe. That's the same message that went out, supervised by the United States Department of Agriculture, through the Beef Board, to communicate --
03-1164 +++$+++ 1805 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Did he --
03-1164 +++$+++ 1806 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- message.
03-1164 +++$+++ 1807 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And who paid for that? Did these people pay for that?
03-1164 +++$+++ 1808 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The President's message was paid through general tax dollars. The message under this program is paid through the assessment. It's the same message. The message under the Beef Board is carefully controlled and supervised by the United States Department of Agriculture. If I could make a point --
03-1164 +++$+++ 1809 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, let's be honest about it. Let's be totally accurate. It's not going to say, "The government believes this." The government may not believe it. What it says is, "This message is brought to you by the Beef Association under the -- under a program requiring contributions to advertising of the Department of Agriculture."
03-1164 +++$+++ 1810 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
03-1164 +++$+++ 1811 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Nobody will even know what that means, but it has the -- [Laughter.]
03-1164 +++$+++ 1812 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- it has --
03-1164 +++$+++ 1813 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's good.
03-1164 +++$+++ 1814 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- it has the virtue of being totally accurate.
03-1164 +++$+++ 1815 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. Every single ad that we're aware of, has the beef check, which is the sign that the beef -- or the reasonable observer would know that this is a statute passed by Congress containing a message that Americans should eat more beef, that beef is nutritious, that's disseminated under a program that's carefully supervised and controlled by the Secretary of Agriculture.
03-1164 +++$+++ 1816 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The important thing is, you have no objection to doing that.
03-1164 +++$+++ 1817 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would not, but we also think -- and if the Court made that clear in this case, it wouldn't be a basis for invalidating the statute; it might be a basis for sending it back or an as-applied challenge. Importantly, we --
03-1164 +++$+++ 1818 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But what it -- what it would -- what it would be a basis for, at least within the confines of this argument, would be a basis for your government speech claim in the sense that you wouldn't be basing a government speech claim on what is really a misrepresentation.
03-1164 +++$+++ 1819 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- we don't think it's a misrepresentation. The speech is funded by America's beef producers. The Respondents in this case, the centerpiece of their First Amendment argument --
03-1164 +++$+++ 1820 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, including those who don't want to fund it and who don't agree with the message. I mean, the problem here is that by making that representation, you indicate that this is the message of the people who are paying for it. And some of the people who are paying for it do not wish to convey that message.
03-1164 +++$+++ 1821 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We --
03-1164 +++$+++ 1822 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's the misrepresentation.
03-1164 +++$+++ 1823 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect, we would disagree. There's no reason to believe that a reasonable observer would think that just because an ad says it's funded by the nation's beef producers, every single one of the 850,000 individual cattle producers in this country agrees with every single statement --
03-1164 +++$+++ 1824 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But what they would --
03-1164 +++$+++ 1825 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of the message.
03-1164 +++$+++ 1826 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- what they would, I think, assume is that, in the name, the beef producers do, in fact, agree with this, and this is their message. What they would not assume from it is that it is what you and Mr. Kneedler are claiming, the speech of the Government of the United States. They certainly wouldn't infer that.
03-1164 +++$+++ 1827 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We think it's fair to assume, as the Court would under the establishment clause, that they're familiar with the act of Congress that makes it its message as well as a program. A critical point on this attribution argument is that it's not supported by any single piece of evidence that Respondents, themselves, have put into the record in this case. Their First Amendment objection is to the content of the ads. There's not a single piece of evidence in the record purporting to make this attribution argument that the public would attribute to the ads to them. It's not in the complaint in this case, it's not in their own affidavits, it's not in the --
03-1164 +++$+++ 1828 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, maybe --
03-1164 +++$+++ 1829 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in the --
03-1164 +++$+++ 1830 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- maybe it's not because they didn't know you were going to be defending on the basis of government speech. That's what's getting us into this.
03-1164 +++$+++ 1831 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I highly doubt that, Justice Souter, because the First Amendment claim was added in response to the United Foods case, and this case was developed, from the outset, on a government speech theory.
03-1164 +++$+++ 1832 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which wasn't a government speech case.
03-1164 +++$+++ 1833 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it -- the case was tried under the First Amendment, under a government speech argument. But -- so the fact that Respondents didn't put --
03-1164 +++$+++ 1834 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This case, not United Foods. Because United Foods, the Court said it -- it was not legitimately before us.
03-1164 +++$+++ 1835 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. But my point is that the First Amendment case proceeded after United Foods. The government's central argument in the trial was government speech. The one time attribution came up -- and this is at pages 46 and 47 of the trial record -- Respondents' own witness testified that the public was not likely to attribute the message of the pro-beef ad to its organization of beef producers. So if the Court finds that attribution is a constitutional concern, it's no basis to bring down the act of Congress on the record in this case. The -- I want to emphasize, if I could, that the program in this case has been effective. The record establishes that the beef checkoff has had a statistically significant impact on increasing consumer demand for beef and an increase in prices. That's contained in the expert testimony of Professor Ward, at pages 100 and 173. The record also shows that for every checkoff dollar spent on the program, there's more than a 5.67 rate of return back to the beef producers in the form of increased prices for cattle. The Beef Board's 2003 report suggests -- finds that the price of a fed steer increased by more than $200 in the past few years. This program has worked. Thank you very much.
03-1164 +++$+++ 1836 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you. Mr. Tribe.
03-1164 +++$+++ 1838 +++$+++ FALSE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: As I was listening to some of the questions about whether it would solve the problem to be more candid and say, "This is your government speaking," I thought I would begin with that question, rather than with an overview of government speech. You'll recall Wooley v. Maynard, of course, in which the State of New Hampshire, without sensing the irony of its position, said, "We'll put you in jail if you do not say, 'Live Free or Die' on" --
03-1164 +++$+++ 1839 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But that was --
03-1164 +++$+++ 1840 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- "your license plates."
03-1164 +++$+++ 1841 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- that was an individual attribution. You, yourself, had --
03-1164 +++$+++ 1842 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1164 +++$+++ 1843 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- had to carry this message. Now, here you want us to think of some cowboy --
03-1164 +++$+++ 1844 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1164 +++$+++ 1845 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- going into the bar, and he gets jeered by all his friends because he likes beef.
03-1164 +++$+++ 1846 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Kennedy, my -- [Laughter.]
03-1164 +++$+++ 1847 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- my point -- my point was going to be that a footnote on the license plate saying, "This is New Hampshire speaking," would not have helped. But one of the central holdings, as I understood it, of United Foods, independent of government speech, was that although there is a difference between having to say something yourself, having to put it on your car, and having to pay for it, that difference does not go to the existence of a First Amendment speech objection -- not an association objection, but a speech objection.
03-1164 +++$+++ 1848 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's first address the question you said -- you said you were going to address, whether in order to be government speech, within the meaning of our cases, it has to be identified as such. Is that really true? I mean, you know, in World War II, Bob Hope would appear in movie theaters and say, you know, "Buy war bonds?"
03-1164 +++$+++ 1849 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I don't --
03-1164 +++$+++ 1850 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ "This is Bob Hope. You people ought to go out now" --
03-1164 +++$+++ 1851 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, I think, although it's an interesting digression about whether the government is being candid, the objection here has nothing to do with that.
03-1164 +++$+++ 1852 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay, so it is --
03-1164 +++$+++ 1853 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But being the government --
03-1164 +++$+++ 1854 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- it is not essential --
03-1164 +++$+++ 1855 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It may be.
03-1164 +++$+++ 1856 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that government might -- in order to be government speech, the government does not have to identify itself as the speaker.
03-1164 +++$+++ 1857 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
03-1164 +++$+++ 1858 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes or no? Yes or no?
03-1164 +++$+++ 1859 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the answer is yes, it must identify itself, but it doesn't help, because --
03-1164 +++$+++ 1860 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it doesn't --
03-1164 +++$+++ 1861 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the government --
03-1164 +++$+++ 1862 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- we understand that you have a First Amendment claim, which you're going to have even if we say, "This is not government speech." I think the whole point here is to decide whether this is even --
03-1164 +++$+++ 1863 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no, Justice --
03-1164 +++$+++ 1864 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- an issue that should be disposed of on any grounds other than candor.
03-1164 +++$+++ 1865 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, I think that we're getting off track by assuming that it helps for it to be government speech. My point is that a central theme of this --
03-1164 +++$+++ 1866 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, just indulge us. I mean, some of us think it makes --
03-1164 +++$+++ 1867 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me --
03-1164 +++$+++ 1868 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- a difference --
03-1164 +++$+++ 1869 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but --
03-1164 +++$+++ 1870 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and I would --
03-1164 +++$+++ 1871 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but let me ask you whether --
03-1164 +++$+++ 1872 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I would like to know whether it is essential to its character as government speech that the government's say, "This your government speaking."
03-1164 +++$+++ 1873 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It depends on the purpose for which you are acting whether it's government speech. In Rust v. Sullivan, even though I think you're certainly right, Justice Scalia, that in that opinion it wasn't called government speech, in order to rationalize it, in Rosenberger and Velazquez, it was so described. But the question there wasn't, "Can people be made to support it?" The question, rather, was, "Can the government insist on staying within the terms of its grants and saying you can't talk about abortion?" When the question is, "Can the government force you to support it," the "it," if it's government speech, doesn't help. The First Amendment makes it a harder case for them, not easier.
03-1164 +++$+++ 1874 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It does it all the time in general taxes. Every --
03-1164 +++$+++ 1875 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1164 +++$+++ 1876 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- time we pay general taxes, we're supporting government speech --
03-1164 +++$+++ 1877 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course.
03-1164 +++$+++ 1878 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- we may not agree with.
03-1164 +++$+++ 1879 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the Court has said there is a fundamental difference between being singled out, as in Wooley, to have a license plate, as in Pruneyard, to have someone on your premises. In Pruneyard, the Court said that one of the reasons it's okay to require someone to allow a private speaker onto the premises is that he was not required to support a government slogan. When it is --
03-1164 +++$+++ 1880 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but there it --
03-1164 +++$+++ 1881 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- government speech --
03-1164 +++$+++ 1882 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- there it is your car, your property. That's not this. This is a generic ad on behalf of beef.
03-1164 +++$+++ 1883 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was true of --
03-1164 +++$+++ 1884 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think there is --
03-1164 +++$+++ 1885 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that was true of United Foods.
03-1164 +++$+++ 1886 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- there's a world of difference between this and having something put on your license plate or in your --
03-1164 +++$+++ 1887 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice O'Connor, I would be much more offended by having to put it in my license plate. But if I were raising cattle, and I were told, as they were told in this case, "cattle equals beef; that's all it's worth, and that's why we won't let you, in these ads -- we won't let the ads, that you have to pay for, increase the demands for cattle; only beef" --
03-1164 +++$+++ 1888 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I don't even understand your argument. Would you still be if the --
03-1164 +++$+++ 1889 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I haven't made it.
03-1164 +++$+++ 1890 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you're trying. [Laughter.]
03-1164 +++$+++ 1891 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would you still be here if there were distinctions made on behalf of free-range beef or, you know, "Our cattle" --
03-1164 +++$+++ 1892 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, yes.
03-1164 +++$+++ 1893 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "never had a" --
03-1164 +++$+++ 1894 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The most important distinction --
03-1164 +++$+++ 1895 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "medicine" or something like that? Would you still be here if those distinctions --
03-1164 +++$+++ 1896 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if it --
03-1164 +++$+++ 1897 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- had been made?
03-1164 +++$+++ 1898 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- wasn't generic -- there's no way for them to have an ad for every imaginable different kind of cattle in one set of advertisements. I just think --
03-1164 +++$+++ 1899 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I'm just --
03-1164 +++$+++ 1900 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- it's a --
03-1164 +++$+++ 1901 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- asking you if, theoretically, some attention had been paid to the different kinds of producers --
03-1164 +++$+++ 1902 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-1164 +++$+++ 1903 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- would you still be objecting?
03-1164 +++$+++ 1904 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We would object, fundamentally, if they did not emphasize American beef. That was our first objection. They said that they don't want to emphasize American beef, because, in cross-examination, the officer of the Beef Board said, "Consumers might actually have a preference for American beef. That would be irrational. We don't want that." And so all of those cattle ranchers can say that, "We're proud of it being American." They can't get that in there. And the other principal thing is that they don't think of themselves as selling sides of beef. Some of them are selling dairy cattle, some of them are selling -- even if it's going to, in the end, be in the slaughterhouse -- we all die someday -- their fundamental belief is that these are animals, and they're to be cared for. And the reason that that makes a difference -- the reason that it makes a difference that they can't even advertise -- try to make live cattle more attractive to buy -- is that the collective-action problem, if that were relevant here -- I think that was really resolved by United Foods -- but the collective-action problem is really created, not solved, by what they're doing. Because the structure of the market is that there are a few concentrated meat-packers. Something like four slaughter 80 percent of the -- of the cattle in the United States. They have the bargaining power. And in the record, their support for the findings of the District Court, that when the demand for beef goes up through these generic ads saying, "Eat beef" -- although they certainly don't say, "Your government says you should eat beef, beef, beef" -- but when the demand for beef goes up, the profit is pocketed by the meat processor, the meat packer, the restaurant, the supermarket. And these guys still end up taking their cattle to market, and often having to pay a dollar checkoff, even though they can't even get the price of the -- of the cattle back. So --
03-1164 +++$+++ 1905 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But would it --
03-1164 +++$+++ 1906 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the free rides are now taken by the people who don't pay --
03-1164 +++$+++ 1907 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- seems to --
03-1164 +++$+++ 1908 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the processors don't pay anything.
03-1164 +++$+++ 1909 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I understand that a person could have an ideological objection to the content of the ad. But the ad, itself, is an effort by government, in this area, to regulate a commercial matter, not a license plate that says, "Free Speech, or Die," or "Freedom" --
03-1164 +++$+++ 1910 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But it regulates speech, Justice Breyer.
03-1164 +++$+++ 1911 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, I know. Right now I'm asking --
03-1164 +++$+++ 1912 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They don't --
03-1164 +++$+++ 1913 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, my question is, does it make a difference for the point of distinguishing, or not distinguishing, "Live Free, or Die," and similar ideological matters -- does it make a difference that the fundamental aim of the program, and 99 percent of the way it's carried out, has to do with simple advertising, commercial advertising, the regulation of a commercial matter, commerce --
03-1164 +++$+++ 1914 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-1164 +++$+++ 1915 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- does that make a difference?
03-1164 +++$+++ 1916 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it makes an emotional difference.
03-1164 +++$+++ 1917 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But no legal difference.
03-1164 +++$+++ 1918 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not in the context of forcing people to pay.
03-1164 +++$+++ 1919 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, in other words --
03-1164 +++$+++ 1920 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It makes a difference --
03-1164 +++$+++ 1921 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- in other words, a program that is a regulatory program regulating commerce, we should no longer think of that, though we tend to think of it as quite different in the way we approach the First Amendment -- we no longer, in your view, should?
03-1164 +++$+++ 1922 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no. I think, certainly if we are regulating economic transactions and only dealing with speech in a purely ancillary way -- that is, we're regulating sale, transactions --
03-1164 +++$+++ 1923 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We regulate advertising. We regulate commercial advertising.
03-1164 +++$+++ 1924 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, but the --
03-1164 +++$+++ 1925 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The Federal Trade Commission --
03-1164 +++$+++ 1926 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- network --
03-1164 +++$+++ 1927 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
03-1164 +++$+++ 1928 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- didn't you say that just the fact that you call it commercial speech only means that when you are regulating problems of a transactional kind -- deception, overbearing -- then the fact that it's commercial speech makes a big difference. But you can't just generically say that because something doesn't fit your idea of what's ideological -- I mean, to these ranchers, the ideology --
03-1164 +++$+++ 1929 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I didn't say --
03-1164 +++$+++ 1930 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- is different --
03-1164 +++$+++ 1931 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I didn't say they had a --
03-1164 +++$+++ 1932 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But whose --
03-1164 +++$+++ 1933 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- commercial objection.
03-1164 +++$+++ 1934 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- whose line -- whose line between ideology and commerce will --
03-1164 +++$+++ 1935 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I am asking. In analyzing the program, there are some things for it, and there are some things against it. And in trying to make that weighing, I do think it's different, because the basis of the program is commercial regulation. And so I want to be certain, in your view, that's either correct or incorrect.
03-1164 +++$+++ 1936 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it's --
03-1164 +++$+++ 1937 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If it's incorrect, I want to know why.
03-1164 +++$+++ 1938 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think it's -- if one were just weighing and didn't have a structured set of principles on the balance in favor of it, I think, you're right, we can't -- they're not trying to induce ideological conformity. This is not a case where they're trying to enforce what Justice Jackson calls "the unanimity of the graveyard." It is a case where the spirit of the government is in the right place. The government is trying to facilitate collective speech when --
03-1164 +++$+++ 1939 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if it makes a difference, then the lens that I look at this through is called our -- whatever the second-tier commercial speech lends.
03-1164 +++$+++ 1940 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think --
03-1164 +++$+++ 1941 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Have you looked at --
03-1164 +++$+++ 1942 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That doesn't follow. I don't think that follows. It follows that if you were -- if you were writing on a clean slate and were trying to create a wholly new doctrine, one of the things you would look at, I suppose, is that this is not a program designed to create ideological conformity in America. At least the spirit of the program is not that. But the road to hell is often paved with good intentions, and the means, in this case, that was chosen, was not to have the government spend some more money telling people, "Beef isn't all as bad for you as you think." The remedy that they are choosing is to pick a group of ranchers and say to them, "You are the ones who are going to pay, and you are going to pay for" --
03-1164 +++$+++ 1943 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Tribe, would --
03-1164 +++$+++ 1944 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- "ads that are in your name."
03-1164 +++$+++ 1945 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- would you comment on the argument that -- what will this do to compelling cigarette manufacturers to finance the advertisements against smoking?
03-1164 +++$+++ 1946 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, by "advertisements against smoking," Justice Stevens, if you mean, "Here are the things that will kill you in cigarettes," the kind of thing that's on the package now, it seems to me that it is constitutional, under even cases like Zauderer, to say that whoever sells a product or a service --
03-1164 +++$+++ 1947 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ They have to give warning. But why is the -- why is the cigarette analogy different from this case? What is your answer to that?
03-1164 +++$+++ 1948 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it seems to me that no one suggests that the cigarette companies are supporting the ads in California. California is doing exactly what the Surgeon General does.
03-1164 +++$+++ 1949 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it's odd that you can be compelled to --
03-1164 +++$+++ 1950 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Say negative things --
03-1164 +++$+++ 1951 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- engage in speech that you don't agree with. Now you're saying that the more --
03-1164 +++$+++ 1952 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-1164 +++$+++ 1953 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- disagreeable it is to you --
03-1164 +++$+++ 1954 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1164 +++$+++ 1955 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- the more legitimate it is. That's --
03-1164 +++$+++ 1956 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think if you're --
03-1164 +++$+++ 1957 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- a very strange argument.
03-1164 +++$+++ 1958 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it may be strange, but I think that there have been stranger things. The reason that it's true is that if you go around doing things that might endanger people, it's entirely justifiable for the state, as part of its non-speech effort to protect people --
03-1164 +++$+++ 1959 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, do you --
03-1164 +++$+++ 1960 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- from harm, to make you give warnings --
03-1164 +++$+++ 1961 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- do you accept the fact that the government can charge taxes on the sale of cigarettes and compel -- and use that money to tell people that they're dangerous?
03-1164 +++$+++ 1962 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that's a much harder case than this, to be honest with you. I think --
03-1164 +++$+++ 1963 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We do, however.
03-1164 +++$+++ 1964 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, California does that.
03-1164 +++$+++ 1965 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that part of what's going on?
03-1164 +++$+++ 1966 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In California, it does.
03-1164 +++$+++ 1967 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So what you're arguing here --
03-1164 +++$+++ 1968 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1164 +++$+++ 1969 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- is going to have rather a drastic effect on --
03-1164 +++$+++ 1970 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the --
03-1164 +++$+++ 1971 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- what's going on.
03-1164 +++$+++ 1972 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- drastic effect would be the other way, wouldn't it? If this Court were to hold, despite United Foods, that it is permissible to force people to support speech they don't agree with, as long as that speech doesn't fit our sense of what's ideological, that cuts to roll back Keller and Lehnert and Abood. It's not a small part of the constitutional landscape that would be unearthed. Whereas, think about what is the marginal effect of saying --
03-1164 +++$+++ 1973 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wait, I don't -- I had not understood you to be arguing, Professor Tribe, that this would be unlawful, even if the money were raised in the fashion that it is, just from the -- just from the cattlemen. And the government's own program used that money to say, "Your government thinks it's -- wants you to know that beef is thoroughly safe. We've done studies. Beef is good for you. You should eat more beef." I thought you --
03-1164 +++$+++ 1974 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I do think that would be permissible.
03-1164 +++$+++ 1975 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That would be permissible?
03-1164 +++$+++ 1976 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because, I mean, technically, it would solve only the association problem. They're not associated with the message. They're still forced to support it, but not in any sense different from general taxpayers. And because that's the case, and because it would be an odd formalism to say that it makes a difference whether we segregate that money or not, seems to me it would follow that if the government is willing to pay the political cost of having the speech be perhaps less persuasive because of -- people's discount for what the government says and of having to get an appropriation from the taxpayers -- I mean, taxpayers are smart enough to know --
03-1164 +++$+++ 1977 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, not that. The same program, but you just have a little tag on the ad.
03-1164 +++$+++ 1978 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Like the lockbox? I mean, every -- I think the taxpayers know that money is fungible. Well, in this case, you mean if you had the program, not from general revenue, but you simply said, on the ad, "This is actually part of a government program"? I don't think that solves any problem, other than deception.
03-1164 +++$+++ 1979 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What's the --
03-1164 +++$+++ 1980 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Deception is the -- my constitutional argument.
03-1164 +++$+++ 1981 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- what's the difference between the checkoff and the excise tax?
03-1164 +++$+++ 1982 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the checkoff in this case is money that goes to a group, which, though it is organized by the government, purports to represent --
03-1164 +++$+++ 1983 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So the answer is --
03-1164 +++$+++ 1984 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the way it structured --
03-1164 +++$+++ 1985 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- where --
03-1164 +++$+++ 1986 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- these people.
03-1164 +++$+++ 1987 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- where the money goes and who pays out the money for the ad, that's the difference.
03-1164 +++$+++ 1988 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the difference is the whole structure. Keep in mind --
03-1164 +++$+++ 1989 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, isn't that the -- isn't that the essential difference between the structure in this case and the structure in the case in which the government comes out, saying, "This is your government, saying, 'Don't smoke.'"
03-1164 +++$+++ 1990 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, one -- the difference is that in one case, we've got Congress, we've got the executive, we have one --
03-1164 +++$+++ 1991 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right.
03-1164 +++$+++ 1992 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- person, one vote. Here, we have a million --
03-1164 +++$+++ 1993 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I know, but take all that out of it -- take all that out of it, and what is your answer to Justice Stevens and Justice Souter? That is, look, like this, you have an organization, the Federal Trade Commission, say, or that the FDA says, on the one hand, (a) broccoli industry, "Fruits and vegetables are good for you; crib death device, "Buy anti-crib-death devices; "Buy car seats for your children"; or, "Don't smoke"; or --
03-1164 +++$+++ 1994 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I mean --
03-1164 +++$+++ 1995 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "Don't buy a crib without a crib-death device" --
03-1164 +++$+++ 1996 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I mean, I think it's --
03-1164 +++$+++ 1997 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "or a car without a car seat."
03-1164 +++$+++ 1998 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-1164 +++$+++ 1999 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ See? One's negative and one's positive. And everything else is the same. Then how do you --
03-1164 +++$+++ 2000 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Whether it's --
03-1164 +++$+++ 2001 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- what's the difference?
03-1164 +++$+++ 2002 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- negative --
03-1164 +++$+++ 2003 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
03-1164 +++$+++ 2004 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- or positive, it's the government --
03-1164 +++$+++ 2005 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay, maybe it doesn't matter.
03-1164 +++$+++ 2006 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, no, it matters, in this sense. When the government puts out a message and puts its credibility behind the message, likely to have to balance -- it's going to say, "A little broccoli, but a little steak." "Don't risk crib death" --
03-1164 +++$+++ 2007 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I'm not interested -- I got that point.
03-1164 +++$+++ 2008 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-1164 +++$+++ 2009 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not dismissing it. I understand it.
03-1164 +++$+++ 2010 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right.
03-1164 +++$+++ 2011 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I'm not sure --
03-1164 +++$+++ 2012 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So I'm not understanding what your question is.
03-1164 +++$+++ 2013 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, my question is, is it implied in what you're argued that it would be equally unconstitutional, in the same way, to tell the cigarette industry to advertise, "Don't smoke," or to tell the automobile industry to advertise, "Buy car seats for your children," or to tell the crib industry to advertise, "Be sure you have an anti-crib-death device"?
03-1164 +++$+++ 2014 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think --
03-1164 +++$+++ 2015 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And all that, assuming the financing is the same as here, everything else the same, is it implicit in your argument that they're all equally unlawful?
03-1164 +++$+++ 2016 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. My argument is that you can require the seller of any commodity to include warnings. It does not necessarily follow that you can say to an industry, "You're bad guys. We want you to put on an advertising campaign, and the campaign has to have these characteristics." Forcing them to advocate that people not buy their products, I think, is not the same thing --
03-1164 +++$+++ 2017 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Tribe --
03-1164 +++$+++ 2018 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- as forcing them to say --
03-1164 +++$+++ 2019 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I thought --
03-1164 +++$+++ 2020 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that it will be addictive or that it will cause cancer.
03-1164 +++$+++ 2021 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you're saying --
03-1164 +++$+++ 2022 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I thought --
03-1164 +++$+++ 2023 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I want to be sure I -- that I understood your answer. You can compel them to make warnings. Can you compel them to pay for warnings that are just industry-specific, in saying, "This is dangerous" --
03-1164 +++$+++ 2024 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think so, because I can't see any difference between saying that -- you put on the package, "The Surgeon General has determined that smoking will cause cancer," and saying, "We're going to put on television" --
03-1164 +++$+++ 2025 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But it seems --
03-1164 +++$+++ 2026 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- "the Surgeon General" --
03-1164 +++$+++ 2027 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- almost ironic, to me, to say that you have a greater power to tell the whole industry to publish something they don't want to publish than you do to let them --
03-1164 +++$+++ 2028 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that -- Justice Stevens, what --
03-1164 +++$+++ 2029 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- pay for what --
03-1164 +++$+++ 2030 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- what is --
03-1164 +++$+++ 2031 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- 90 percent of them want to say.
03-1164 +++$+++ 2032 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- what is the difference between telling them that -- I mean, there may be a critical difference between the point of sale and a generic ad -- that is, the power to regulate the transaction to make sure it's safe, includes the power to include on the package certain warnings. The moment you step back from that and say that, "Because you're in a dangerous business, you have to publish general warnings to the public," maybe that's where the line has to be drawn, because I agree that it would be rather bizarre --
03-1164 +++$+++ 2033 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are you limiting your point to putting information on the package, or are you saying they could -- could California compel a cigarette -- companies to contribute to a large fund which is just used to by newspaper advertising describing the dangers of smoking? Could they do that?
03-1164 +++$+++ 2034 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that the rationale for that would be far stronger than this. The state's power to protect people, in terms of life and health, includes the power to compel --
03-1164 +++$+++ 2035 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but supposing there are disagreements. We were -- you were talking about cigarettes. But supposing there's a legitimate disagreement between the industry position and the government position --
03-1164 +++$+++ 2036 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
03-1164 +++$+++ 2037 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- could the government, nevertheless, insist on the industry financing advertising advocating the government's position?
03-1164 +++$+++ 2038 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, not advocating; reporting what the government position is. I mean, the -- when the cigarette company says on the package, "The Surgeon General has found this stuff is deadly," they're not quite saying, "We agree with the Surgeon General." They've -- making them fund or support statements that do not reflect their own beliefs, as though it were --
03-1164 +++$+++ 2039 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, in this case --
03-1164 +++$+++ 2040 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- is impermissible.
03-1164 +++$+++ 2041 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- I take it, it would be okay if the beef producers had to use a dollar a head to put, "Eating too much beef is dangerous to your health."
03-1164 +++$+++ 2042 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if they had -- well, they're not beef producers. I mean, I am troubled by -- they're -- these are cattle.
03-1164 +++$+++ 2043 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right, cattle, then --
03-1164 +++$+++ 2044 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right? And then -- and then they're trying, ultimately, to brand us as though we are slicing these things up and selling them.
03-1164 +++$+++ 2045 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But what's the answer to my question?
03-1164 +++$+++ 2046 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the question is, can retail grocers be required to put on the beef packages they sell, "The government has determined that the cholesterol content is dangerous if you have more than X," I see no reason why that would be harder --
03-1164 +++$+++ 2047 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In other words --
03-1164 +++$+++ 2048 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to defend than the cigarette package.
03-1164 +++$+++ 2049 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think the question, or at least the version I have of it --
03-1164 +++$+++ 2050 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1164 +++$+++ 2051 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- is, we have this case, exactly, and the only difference is, instead of getting these people to eat -- say, "Eat beef," what they say do is, they get people together and say, "Don't eat too much beef." I put --
03-1164 +++$+++ 2052 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1164 +++$+++ 2053 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "too much," because that --
03-1164 +++$+++ 2054 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1164 +++$+++ 2055 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- makes it more realistic. All right, now, does it suddenly become constitutional?
03-1164 +++$+++ 2056 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The program is facially unconstitutional. It is the structure that says to all these people, "You've got to put money into this elaborate structure, which purports to represent you" -- that is, the -- they have all this stuff saying that the Beef Board is related to the industry as board of directors, the shareholders -- "These people, who purport to represent you, will, under the aegis of the government, put out statements at various times." That's facially unconstitutional.
03-1164 +++$+++ 2057 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. Consider this theory. The Congress passes an excise tax. It happens to be a dollar head, on the cattle, just like this so-called "checkoff." And the government uses the excise tax revenue to finance advertising, saying -- maybe saying, "Eat more beef," maybe advertising, saying, "Don't eat quite so much."
03-1164 +++$+++ 2058 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Or maybe --
03-1164 +++$+++ 2059 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ First Amendment problem --
03-1164 +++$+++ 2060 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- talking about the war in Iraq. No, I think that once your taxes enter the general fund, a pretense that it's --
03-1164 +++$+++ 2061 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Including excise?
03-1164 +++$+++ 2062 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think excise taxes are segregated in any way that makes -- that makes it harder --
03-1164 +++$+++ 2063 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, I just want to know what --
03-1164 +++$+++ 2064 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- than Social Security.
03-1164 +++$+++ 2065 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- your position is. I just want to know what your position is.
03-1164 +++$+++ 2066 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My position is that once the revenue is part of the government's general fund, the government's subject to doctrines that I don't think are First Amendment doctrines about government propaganda -- there may be limits on the government's ability --
03-1164 +++$+++ 2067 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay, then --
03-1164 +++$+++ 2068 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to defend it.
03-1164 +++$+++ 2069 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He's just going back to --
03-1164 +++$+++ 2070 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Subject to that --
03-1164 +++$+++ 2071 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay, then it does not have --
03-1164 +++$+++ 2072 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- it's not a First Amendment problem.
03-1164 +++$+++ 2073 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- it's not a First Amendment problem. It does not have the objection that you're raising.
03-1164 +++$+++ 2074 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
03-1164 +++$+++ 2075 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
03-1164 +++$+++ 2076 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that -- is that an answer to the question that Justice Kennedy urged in the opening argument? That is, it's the same dollar a head, except you call it an excise tax instead of a -- whatever this is called. The same thing, but to say it's a tax. And you're not -- this is not general revenues that you collect from everybody and spend --
03-1164 +++$+++ 2077 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the structure is they take the money from you and put it in this elaborate machinery which comes out with statements you're forced to support, the statements that don't have behind them the accountability checks of the Federal Government, which has to answer to taxpayers and answer to the public for the stuff it puts out -- that is -- if that's what it is, it doesn't matter what you call it, it remains unconstitutional. It remains unconstitutional because these individuals are forced in a way that taxpayers are not -- forced to be part of a system in which, even if you have footnotes saying, "This is pursuant to the government," a system in which they will be generally understood in just the way Justice Breyer said, "Well, you know, we assume" --
03-1164 +++$+++ 2078 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But suppose --
03-1164 +++$+++ 2079 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that these people --
03-1164 +++$+++ 2080 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- we don't have that? I mean, could then -- could the government fix this problem this way, saying, "We're going to get the same bucks, but we are going -- and we're going to have the same kinds of ads, but they're going to be labeled, 'U.S. Department of Agriculture."
03-1164 +++$+++ 2081 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And we're going to eliminate the cattlemen's Beef Board and all of these things --
03-1164 +++$+++ 2082 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
03-1164 +++$+++ 2083 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that are supposed to represent you --
03-1164 +++$+++ 2084 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But we are -- but where this money is coming from to pay this is --
03-1164 +++$+++ 2085 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would be happy to represent the cattlemen in that circumstance, saying, "You still have not an associational right, but a right not to be singled out to support government speech." But it would be a different and more difficult claim. One. Two, this Court doesn't have before it the possibility of rewriting all of this. Three, there was a severability provision in an earlier version of the law suggesting that maybe if you could lop something off, it would be okay. But that was eliminated in the current law. And, finally, any attempts to analogize this to the cases like Lehnert and Keller, in terms of remedy, that maybe we can create some scheme where only the objectionable part is returned, is fundamentally incoherent, because what is objectionable here is homogenizing all of these people into some one message, and putting it out through this elaborate structure that purports to represent them.
03-1164 +++$+++ 2086 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I go back to one of your reasons, which was that they are being singled out to pay for this? They're being singled out to pay for it in the excise tax situation. Do you come to different answers, depending whether it's excise tax or singled out without excise tax, based, essentially, on the ground that there is a point beyond which we simply cannot look behind the expenditure of tax revenue? Is that it?
03-1164 +++$+++ 2087 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that there's a point beyond which, for institutional reasons, it would be very problematic for a courts to say that you could trace the dollars into the treasury and those institutional reasons would be, I think, an instance of under-enforcement of a constitutional norm, because the underlying constitutional principle that you ought not to be able, by some gimmick, to get some people to support speech they don't believe in, that would be there. But the difficulty of having this Court enforce that principle, I think, would be very real. But no such difficulty, I think, is presented in a case like this one, because if this case came out their way because of government speech, of course, United Foods would be obliterated, but a good deal more would be obliterated, because the theory would have to be that because it's not on your license plate, because you don't have to carry it, you're only supporting it, then that's all the difference in the world. Because, otherwise, its being government speech would make it worse. But if it's all the difference in the world whether you have to carry or utter it, or merely support it, then all of the decisions of this Court carefully protecting the rights of dissenters in every imaginable kind of organization, from the powerful overriding theory that collective-action problems mean that we've really got to get more speech over here than you are willing, yourselves, to engage in --
03-1164 +++$+++ 2088 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but on the other hand --
03-1164 +++$+++ 2089 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- you'd be --
03-1164 +++$+++ 2090 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- you're running into the problem that the taxpayer can be compelled to pay taxes to support activities that he doesn't support at all. That's the other --
03-1164 +++$+++ 2091 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we do that all the time.
03-1164 +++$+++ 2092 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- the other extreme. I know we --
03-1164 +++$+++ 2093 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do that all --
03-1164 +++$+++ 2094 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- do it all the time.
03-1164 +++$+++ 2095 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the time.
03-1164 +++$+++ 2096 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And when are we crossing --
03-1164 +++$+++ 2097 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's the --
03-1164 +++$+++ 2098 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- the line?
03-1164 +++$+++ 2099 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that's why we have elections, in part.
03-1164 +++$+++ 2100 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Pardon me?
03-1164 +++$+++ 2101 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right? We have elections, in part, because the only way -- there's no way to protect every individual's right to have the government's collective policy suit his or her fancy. I mean, that way --
03-1164 +++$+++ 2102 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But it is --
03-1164 +++$+++ 2103 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- would allow complete chaos.
03-1164 +++$+++ 2104 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- inconsistent with the basic principle on which you rely, that the individual should not be compelled to support speech --
03-1164 +++$+++ 2105 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1164 +++$+++ 2106 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- with which he disagrees.
03-1164 +++$+++ 2107 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to support -- supporting speech is somewhat different from supporting activities that you don't agree with. I mean, the First Amendment makes a fundamental difference in that respect.
03-1164 +++$+++ 2108 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But isn't --
03-1164 +++$+++ 2109 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If there were --
03-1164 +++$+++ 2110 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- isn't that --
03-1164 +++$+++ 2111 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry.
03-1164 +++$+++ 2112 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Don't you go back to the answer you gave me? Sure, when taxes are involved, there may be an under-inclusive enforcement of certain individual rights, but they have to be under-enforced, because, otherwise, you simply cannot administer a tax structure.
03-1164 +++$+++ 2113 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Or any structure. I mean, Bowen v. Roy -- I mean, there's a sympathetic case of the man who did not want Little Bird of the Snow to be given a Social Security number. But we could, when we, interactive with the government, say to him, "You -- we can't make you give the number to get the food for your little daughter," but if one person says, "I don't want numbers in your computers," and the other says, "I don't want letters, I want only numbers," the fact that every individual who has a potential claim on a collective choice could pull in a different direction means we can't run a system that way. But no such problem is presented in cases like this.
03-1164 +++$+++ 2114 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Tribe.
03-1164 +++$+++ 2115 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
03-1164 +++$+++ 2116 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I think we understand your position. Thank you. Mr. Kneedler, you have about three -- three or four minutes.
03-1164 +++$+++ 2118 +++$+++ FALSE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens. Mr. Tribe has conceded that if this program were financed by a system of excise taxes that went into the general Treasury, and Congress then paid -- provided the exact same amount of money to produce the exact same ads, that there would be no constitutional problem. And, in our view, the First Amendment simply does not regulate the details of government fundraising, the details of government accounting, and the details of government bookkeeping in that manner. The First Amendment is --
03-1164 +++$+++ 2119 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that goes back to Frothingham and Mellon, and Massachusetts versus Mellon, and United States versus Butler, where we could trace the amount.
03-1164 +++$+++ 2120 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, and --
03-1164 +++$+++ 2121 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's old stuff.
03-1164 +++$+++ 2122 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, and the Court -- the Court superceded those decisions in cases like Carmichael Coal and Storaasli Company and cases like that, where the Court said excise taxes can be imposed. As long as there is a public welfare justification, they can be spent. And it would be an odd result to have the First Amendment drive the way the government arranges a system like this. After all -- and Professor Tribe said it would be different if the cattlemen's Beef Board were gotten rid of. It actually -- the principal point here is the Secretary controls the speech. Whatever the cattlemen's Beef Board does -- and that is a government entity -- the Secretary controls the speech. So that -- this is not some jury-rigged system; this is a system of governmental control. Congress has prescribed the message, and the Secretary carries it out. It's important to recall that many federal excise taxes go into dedicated trust funds -- for highways, for other functions like that. And out of that dedicated trust fund, there may be money expended on highway safety. So the fact that it's dedicated really should not matter. And this case is completely different from cases like Keller. In Keller, the state bar was not appointed by the -- by the government, there was no governmental supervision of what it did, and the government certainly did not approve the messages in favor of nuclear freezes, et cetera. This is different in all the critical ways that make this a program of government speech. And, as Justice O'Connor pointed out, to strike down this program would have drastic consequences. There are many, many agricultural promotion programs like this. There are 13 at the national level. This program has been in existence since 1988. One billion dollars has been collected, and promotions have been conducted under it. These promotional programs go back to the '50s, and even -- and even earlier. And there are many programs on the state levels, as the amicus brief filed by the states in this case shows. This Court would be striking down a lot to hold that this commonsense way of approaching things is unconstitutional. It's also important to recognize that the ultimate beneficiary of the advertising is the consumer. Yes, it affects the industry, but it's the consumer. And the very first finding that Congress made in the Beef Act is, beef and beef products are basic foods that are a valuable part of the human diet. When the -- when the -- because of the collective-action problem in this industry, that it cannot organize to advertise, that basic message is not getting to consumers. So this -- the justifications for this, to the extent one thinks of it in terms of the commercial speech, it is squarely within the ultimate purposes of the commerce speech doctrine, which is to correctly market failure with respect to advertising in order to get information to consumers.
03-1164 +++$+++ 2123 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Kneedler. The case is submitted.
03-1230 +++$+++ 2127 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument now in American Trucking Associations v. Michigan Public Service Commission and a companion case. Mr. Digges.
03-1230 +++$+++ 2129 +++$+++ FALSE +++$+++ MR. DIGGES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: This case is a challenge to Michigan's $100 per truck flat annual fee that is imposed on all trucks that are registered to do point-to-point operations in the State of Michigan. We submit that this fee, this flat per truck fee, has the same impermissible effects on interstate commerce as the two flat truck fees that were struck down by this Court in American Trucking Associations v. Scheiner. In the American Trucking Associations v. Scheiner case, this Court looked at the practical effect of these fees and found that because of their unapportioned structure, that the fees had four interrelated types of impermissible effects on interstate commerce. First, the Court found that these kinds of flat fees were a financial barrier against out-of-state motor carriers even coming into the State that imposed the -- the fee. There's no question in this case that the Michigan flat fee has the same kind of protectionist quality.
03-1230 +++$+++ 2130 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it -- it does for trucks that want to deliver things within the State of Michigan. It doesn't for anybody else.
03-1230 +++$+++ 2131 +++$+++ TRUE +++$+++ MR. DIGGES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it -- it discriminates and it -- it has an exclusory effect on trucks -- out-of-state carriers that want to compete in the -- and bring their trucks across the -- the border of Michigan and compete against local carriers for intrastate hauls.
03-1230 +++$+++ 2132 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It would have that -- it certainly has that tendency. Do we have -- do we know in fact what the effect is? Is it deterring anybody? How many trucks does it affect?
03-1230 +++$+++ 2133 +++$+++ TRUE +++$+++ MR. DIGGES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There was not a trial below. So we don't have that fact. We believe that as in the Scheiner case, these -- these tendencies are inherent there. Because of the structure of the fee, it not only has this effect, it has what this Court called a hydraulic pressure effect, and that is to -- for carriers, once they have paid this fee as an entrance fee, to pull their trucks out of interstate commerce and to concentrate them into -- in the State of Michigan in the local activities. And that -- in fact, the State acknowledges that. Below, the State said that motor carriers should allocate or dedicate their trucks to the State of Michigan in order to avoid these consequences. And even the Michigan Court of Appeals recognized that, saying a local carrier would be discouraged from operating in interstate commerce.
03-1230 +++$+++ 2134 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Of course, it also -- I mean, you say it -- it favors the in-state -- intrastate carrier because if you're doing nothing but intrastate carriage, you -- you amortize the $100 over many more miles, whereas the interstate carrier, much of whose business is out-of-state, doesn't do that. On the other hand, you can certainly argue that -- that this tax discriminates against intrastate carriers in -- in another respect, that is to say, interstate carriers who -- who do nothing within the State do not pay it, whereas the -- the Michigan carrier that does a lot of interstate business but if he does one piece of intrastate business -- interstate business, he still pays it. Isn't that right?
03-1230 +++$+++ 2135 +++$+++ TRUE +++$+++ MR. DIGGES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I think what -- what that's saying -- and I know that was the argument made in the Solicitor General's brief -- is that you can discriminate against one component of interstate commerce, those carriers that want to actually compete and do intrastate business in the State, as long as you give a benefit to another component of interstate commerce, those who just wish to operate in the -- in the State of Michigan in interstate commerce.
03-1230 +++$+++ 2136 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it's not so much that you necessarily can do it, but it -- it sort of interrupts the -- the kind of the a priori reasoning and you're thrown back on a -- on -- on a practical effects analysis under Pike.
03-1230 +++$+++ 2137 +++$+++ TRUE +++$+++ MR. DIGGES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. I think what happens is that -- that there are the segment of carriers that would like to compete against intrastate carriers. The fact that other carriers may be getting a break in terms of regulatory fees -- and we don't know that to be the truth, getting the other interstate carriers. It's the Boston Stock Exchange, and I think it was said again in the Scheiner case that -- that you can't discriminate among interstate carriers. And as we pointed out in our brief, you could set up a situation in which a -- a State discriminated in favor of interstate carriers in situations or industries where their locals had no interest in competing, but where their -- their locals were interested in competing, they could set up a discriminatory system. So you can protect timber industry in -- in Oregon and --
03-1230 +++$+++ 2138 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But may I ask this question? Suppose you have an interstate carrier that does 100,000 miles of business in Michigan and you have an intrastate carrier that does a 100,000 miles of business in Michigan. They both say the -- pay the same tax, don't they?
03-1230 +++$+++ 2139 +++$+++ TRUE +++$+++ MR. DIGGES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If they each do 100,000 miles of intrastate business in Michigan --
03-1230 +++$+++ 2140 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
03-1230 +++$+++ 2141 +++$+++ TRUE +++$+++ MR. DIGGES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- they would pay the same flat fee.
03-1230 +++$+++ 2142 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They would both pay the same tax, both the intra and the interstate. Now, that doesn't sound to me like discrimination against either one.
03-1230 +++$+++ 2143 +++$+++ TRUE +++$+++ MR. DIGGES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If -- if this -- if this tax was apportioned based on mileage, it would not be discrimination, but unfortunately, it is not and --
03-1230 +++$+++ 2144 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but I'm just saying if the intrastate and interstate carriers both have the same intrastate mileage, they both pay the same tax.
03-1230 +++$+++ 2145 +++$+++ TRUE +++$+++ MR. DIGGES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And we -- we would -- and again, if this was a mileage-apportioned fee, it would be -- it would be fine. But the fact is as in Scheiner, the out-of-state carriers, because the interstate carrier is -- is operating --
03-1230 +++$+++ 2146 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but you might have an intrastate carrier that does a smaller amount of mileage, only 50,000 miles, and an interstate carrier that pays -- does 100,000 miles. They both pay the same tax too. And everybody is treated alike on their intrastate business.
03-1230 +++$+++ 2147 +++$+++ TRUE +++$+++ MR. DIGGES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be true but that --
03-1230 +++$+++ 2148 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the tax only operates on intrastate business.
03-1230 +++$+++ 2149 +++$+++ TRUE +++$+++ MR. DIGGES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The factual situation is going to be that the interstate carrier is just not going to have the opportunity to do as much business in Michigan as the intrastate carrier.
03-1230 +++$+++ 2150 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it seems to me you should have introduced some evidence on that point. I mean, it -- it really is an assumption of your unfairness argument that purely intrastate carriers do significantly more intrastate business than interstate carriers who choose to do some interstate business. Now, does that strike you as self-evident? It does not need any --
03-1230 +++$+++ 2151 +++$+++ TRUE +++$+++ MR. DIGGES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes, Your Honor.
03-1230 +++$+++ 2152 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- demonstration?
03-1230 +++$+++ 2153 +++$+++ TRUE +++$+++ MR. DIGGES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does strike me as self-evident. In fact, to courts below -- we have -- we've made this argument. We've seen this argument now. The cases have called it intuitively obvious. And from the discussion of -- in the Scheiner case and from the discussion in the Nippert case, the very difference between interstate and intrastate commerce means that on average the interstate carrier is just not going to use the State's facilities as much as the in-state carrier.
03-1230 +++$+++ 2154 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Wouldn't we be better able to decide this question after a trial rather than speculation on both sides?
03-1230 +++$+++ 2155 +++$+++ TRUE +++$+++ MR. DIGGES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think a trial is necessary because, as I say, this -- this Court quoted Justice Frankfurter clearly, and I think the Solicitor General in his brief says that on average the out-of-state carrier is not going to get as much benefit from this fee. This is a variable cost fee. In effect, the out-of-state carrier is having to pay more than its fair share of the cost of the -- of the State's regulatory system. And again, that's something that was accepted in the Scheiner case, accepted in -- in the Nippert case. And the intrastate carrier -- every time that it operates in the State, it is using that privilege.
03-1230 +++$+++ 2156 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, Nippert was over 100 years ago, wasn't it?
03-1230 +++$+++ 2157 +++$+++ TRUE +++$+++ MR. DIGGES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the Nippert case was from the 1940's I believe. In any event, as we've been discussing --
03-1230 +++$+++ 2158 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It seems like 100 years ago. (Laughter.)
03-1230 +++$+++ 2159 +++$+++ TRUE +++$+++ MR. DIGGES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's --
03-1230 +++$+++ 2160 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Digges, this -- the -- the -- there was a question about the ramifications of the position that you're presenting. That is, there are many situations in which there is some kind of licensing fee that is imposed on everyone, the same dollar amount, although some people who are licensed will be doing business in other States and have to get licenses there as well. The example that was featured in the -- in the briefs on the other side of the lawyer who is licensed, say, in Massachusetts and also in D.C. does not get any break on his D.C. Bar admission because he is also admitted in Massachusetts, and in fact, does most of his practice out-of-state, out of the District.
03-1230 +++$+++ 2161 +++$+++ TRUE +++$+++ MR. DIGGES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. I know that -- that example was given. I think there are a variety of flat fees that would be unaffected by this. There are fees that would be administrative charges and -- and if all the State is doing is charging, for example, the cost of a background investigation or the cost of a truck inspection, a fixed cost, then it's fair to ask the carrier to pay a fixed fee or to ask the taxpayer to pay a fixed fee. With respect to the bar fees, they are obviously different than the trucking industry and -- and the taxation of an instrumentality in interstate commerce. But we think that there may be impracticalities in apportioning a bar fee. You could have an attorney in his office in Virginia that is working for a California customer or California client that is being -- for a case that is being tried in the court system of Oregon, and then for transaction work, he could be working for a customer or a client in -- in Missouri for -- a multi-state. So it may be difficult to apportion fees. We haven't really examined that. But we know from this Court's decisions that -- that is easy and can be apportioned for truck fees, and truck fees -- this Court said in Scheiner that the technology is now available to look at the extent of the activity and the taxpayer in -- in -- of the truck in the State, and later on in a subsequent decision said that you can easily track large physical objects over States. So you can apportion these fees on trucks to their mileage in the State, to their loads, to the gross revenue associated with the --
03-1230 +++$+++ 2162 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The Scheiner case didn't make a distinction based on in-state activity. I thought that that -- that flat fee was applicable to every motor carrier that went on the roads in Pennsylvania.
03-1230 +++$+++ 2163 +++$+++ TRUE +++$+++ MR. DIGGES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is accurate, Your Honor, but -- but nominally Scheiner -- for instance, the Pennsylvania Supreme Court in the Scheiner case did say that -- did uphold the fee because they said only Pennsylvania could charge for the privilege of using Pennsylvania's highways. So like a lot of -- like all interstate commerce, you can always -- as -- as the Court said in Nippert, you can always find -- carve out a local activity to say that this is going to be the focus of the tax. I think a problem here is with the -- the approach taken by the State and the Solicitor General is they suggest that you go back to the days in which you're trying to draw a line between interstate and intrastate activity, this time not because the intrastate activity is going to be immune from the tax, but this time because you're going to have some separate, different kind of test applicable to something that clearly is subject to Commerce Clause protections, but is -- is, in their view, subject to a more lenient Commerce Clause protection. And I don't think this Court wants to retreat back to the days of having to draw a line between interstate and intrastate commerce and -- and then having separate tests. If there are no more questions, I'd like to reserve the rest of my time for rebuttal. Thank you.
03-1230 +++$+++ 2164 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Very well, Mr. Digges. Mr. Hanson.
03-1230 +++$+++ 2166 +++$+++ FALSE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: In contrast to the ATA case, the question before the Court today in the Mid-Con case is whether the fee on vehicles operating solely in interstate commerce is preempted by 49 U.S.C., section 14504.
03-1230 +++$+++ 2167 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's the same fee we're talking about.
03-1230 +++$+++ 2168 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is --
03-1230 +++$+++ 2169 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But a different theory of invalidity.
03-1230 +++$+++ 2170 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is not the same fee. The -- the fee under subsection (1) that ATA is arguing about is an intrastate fee charged only to --
03-1230 +++$+++ 2171 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Intrastate.
03-1230 +++$+++ 2172 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- carriers that engage in intrastate activities.
03-1230 +++$+++ 2173 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay, and yours is the interstate fee.
03-1230 +++$+++ 2174 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The subsection (2) fee under 478.1 --
03-1230 +++$+++ 2175 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And your fee applies to all Michigan-plated vehicles. Am I correct about that?
03-1230 +++$+++ 2176 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That are operating solely in interstate commerce.
03-1230 +++$+++ 2177 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
03-1230 +++$+++ 2178 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do -- do I understand that the two distinctions in what is done with the -- or the way the fee is collected and what's done with it is that the -- the fee is charged against the -- is it the operator as opposed to the owner, if there is a distinction? Is -- is that correct?
03-1230 +++$+++ 2179 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ All of the fees under subsections (1) and (2) are charged against the motor carrier --
03-1230 +++$+++ 2180 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The carrier.
03-1230 +++$+++ 2181 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- or --
03-1230 +++$+++ 2182 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's the term I should use.
03-1230 +++$+++ 2183 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- motor carrier, not to the owner.
03-1230 +++$+++ 2184 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which may not be the owner. And number two, as I understand it, as distinct from the registration fee, this fee goes to a different State department. Is that right?
03-1230 +++$+++ 2185 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
03-1230 +++$+++ 2186 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now, let -- that's -- that's a premise for a question I want to ask you, and the question is in economic effect, is there any difference really between charging this $100 fee with those differences from the registration fee and simply jacking up the registration fee by $100? Would there -- would there be any economic difference to the -- to the public or -- or indeed even to the carriers if they simply jacked up the -- the registration fee by $100? Because the -- the registration fee is passed on to the carrier, if it's not the owner, and the carrier -- it doesn't make any difference to the carrier whether the -- whether the State diverts the $100 up front or -- or divides the -- the registration fee after it's paid. So is there any economic difference?
03-1230 +++$+++ 2187 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, there is and the reason why there is a difference is that the -- the fees that are paid for plating are under the -- under the International Reciprocity Plan, the registration plan, the IRP. And that is an apportioned fee. It is charged to all vehicles, all commercial motor vehicles, regardless of whether it's for-hire or private, regardless of it's in-state or -- of interstate. So everybody pays their apportioned amount based on mileage.
03-1230 +++$+++ 2188 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but that shows -- that -- maybe I don't understand. That -- that tells us what happens to the money after it's paid, but it doesn't make any difference to the person who is paying the money, does it?
03-1230 +++$+++ 2189 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it does.
03-1230 +++$+++ 2190 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Except that he only has to pay in one place, and -- and if they --
03-1230 +++$+++ 2191 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He pays --
03-1230 +++$+++ 2192 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- increase the registration fee, he'd only have to pay in one place, once.
03-1230 +++$+++ 2193 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But he would only pay the fee based on his mileage in the State. It is not a flat fee if it is put onto the IRP fees. Those --
03-1230 +++$+++ 2194 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Who -- who sets the fee for the plating?
03-1230 +++$+++ 2195 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the State does. It is administered by the Michigan Secretary of State --
03-1230 +++$+++ 2196 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So --
03-1230 +++$+++ 2197 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but I believe all of those are statutory fees.
03-1230 +++$+++ 2198 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- you could have -- unlike the -- the fee, the $10 fee, that --
03-1230 +++$+++ 2199 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The SSRS.
03-1230 +++$+++ 2200 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the Federal cap, this would -- for plating it could be anything each individual State chooses it to be?
03-1230 +++$+++ 2201 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In terms of the plating fee?
03-1230 +++$+++ 2202 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
03-1230 +++$+++ 2203 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Each State is free to charge its -- its own amount as the plating fee.
03-1230 +++$+++ 2204 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Sure, but it -- so -- so regardless of what Michigan does with the apportioned amounts, the amount it charges to the -- to the owner, in the case of the -- the plating fee, is -- is simply set by the State of Michigan.
03-1230 +++$+++ 2205 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is --
03-1230 +++$+++ 2206 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
03-1230 +++$+++ 2207 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that is correct.
03-1230 +++$+++ 2208 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So what -- and -- and the -- the virtue of the apportionment is that the -- that the owner or the -- or the owner, I guess in this case, does not have to pay fees in 49 other States.
03-1230 +++$+++ 2209 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
03-1230 +++$+++ 2210 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But he doesn't -- it doesn't matter to -- that's the value to him. It doesn't matter to him how they apportion whatever that fee is that Michigan charges.
03-1230 +++$+++ 2211 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If they apportion it, however, it is -- it is not -- it does not -- if they put it into the IRP, it is not part of the registration process. The thing that the --
03-1230 +++$+++ 2212 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But who -- I mean, is -- that's -- that's fine as a matter of administration, but in terms of the -- the end effect on the person who has to pay it and on the consumers to whom it is ultimately passed on, what difference does it make?
03-1230 +++$+++ 2213 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- the difference for the person who is paying it under IRP is that if only 20 percent of their interstate miles as a solely interstate operating carrier, if only 20 percent are in the State, they would, in fact, only pay $20 per vehicle.
03-1230 +++$+++ 2214 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can I ask a quick question? The -- there are three things. Were -- were you finished?
03-1230 +++$+++ 2215 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, I don't think he -- I didn't --
03-1230 +++$+++ 2216 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Sorry.
03-1230 +++$+++ 2217 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't understand your answer. If you were finished, I don't understand.
03-1230 +++$+++ 2218 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
03-1230 +++$+++ 2219 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it's -- if it is put into a plating charge as opposed to a registration -- part of the registration of a carrier for the privilege or the opportunity to carry on interstate trucking activities in the State of Michigan, that is the flat fee that we're talking about. Under the SSRS we believe that $100 charge exceeds the $10 maximum and is therefore preempted. If they put it into the IRP, that -- IRP is charged against the owner of the vehicle, paid against the Secretary of -- paid to the Secretary of State. It is not a qualification under -- for the privilege of engaging in interstate trucking in the State of Michigan. The SSRS sets up the standards by which a carrier becomes qualified to operate in the State. Michigan exceeds those standards. If you put those fees into the IRP fees, then the carrier -- or then the owner of the vehicle pays only the proportionate amount based on his mileage in the State.
03-1230 +++$+++ 2220 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask this question? Supposing the -- Michigan changed its system and said we're going to charge you $90 for -- as a plating fee. We're only talking about vehicles that are plated in Michigan. We're going to charge you $90 for a plating fee and now we're going to take 10 -- what used to part of the $100 and another $10 registration fee. Would that be permissible?
03-1230 +++$+++ 2221 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be permissible because the -- if the $10 is charged to the carrier as part of the registration process, in order to be qualified to engage in interstate trucking. The $90 would be charged to the owner of the vehicle and would be paid on an apportioned basis under IRP.
03-1230 +++$+++ 2222 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay. What if he said $20 instead of $10?
03-1230 +++$+++ 2223 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If he said $20 was going to be put towards the -- the State instead of -- instead of $100?
03-1230 +++$+++ 2224 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
03-1230 +++$+++ 2225 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And $80 towards IRP?
03-1230 +++$+++ 2226 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
03-1230 +++$+++ 2227 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In that case, that would still violate the -- the SSRS, if it is done as part of the registration process, which is what Michigan does. Michigan -- even though you're properly SSRS registered, Michigan still requires, under its SSRS form -- it directs the carrier to specifically identify vehicles by make, model, and serial number to obtain a decal by paying $100 for that fee. If they pay $20, that exceeds the $10 maximum that Congress set up in the SSRS in order to be qualified to operate in interstate trucking in the State of Michigan, as an interstate carrier in -- in Michigan.
03-1230 +++$+++ 2228 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that -- that assumes it's an SSRS charge, and the State denies that it -- it has anything to do with SSRS. Don't you have to establish that it's part of the SSRS program?
03-1230 +++$+++ 2229 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think what you have to do is you have to look at what the -- the standards do. The -- the registration standards in the SSRS are set up as the process by which a carrier has the privilege to enter into interstate trucking activities in Michigan. When you look at the statute --
03-1230 +++$+++ 2230 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay, but what -- what if the State says, you can enter -- enter into interstate activities for nothing? We're simply going to increase the registration fee by $100. Couldn't the State do that?
03-1230 +++$+++ 2231 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The State could do that and that would be perfectly permissible.
03-1230 +++$+++ 2232 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So this is pure formalism.
03-1230 +++$+++ 2233 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is not pure form. Any -- what -- what Congress did was say that in order to qualify a carrier -- they were concerned about the burdens. When ISTEA was enacted in 1991, they were concerned about the burdens on carriers of individual State registration requirements. And they sought to -- to alleviate that by making it so that carriers could only -- would only have to register in one State so they could do business in all States on an interstate basis.
03-1230 +++$+++ 2234 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Maybe they sought to but maybe they didn't succeed. As I read the statute, it -- it really applies to the -- the limitation of $10 only to those fees that are SSRS fees, and these are not. So maybe there's -- there's a hole in the Federal statute.
03-1230 +++$+++ 2235 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I don't believe that's the case, Justice Scalia.
03-1230 +++$+++ 2236 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're trying to make the Federal statute work sensibly, but --
03-1230 +++$+++ 2237 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
03-1230 +++$+++ 2238 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- I hate to tell you, but not all statutes work sensibly.
03-1230 +++$+++ 2239 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. I think what you have to do, though, is go back and look at what Michigan does. Michigan has a -- a State statute, 478.7(1), that says in order to operate to carry property on an interstate basis in Michigan, you must register with the PSC and you must pay the required vehicle fees. The registration standards are what they do as in accordance with SSRS: insurance, service of process, and operating authority. Then you have to pay a fee, and the fee is limited to $10 per vehicle. In the case of Michigan, those vehicle fees are set forth in two different sections of the statutes. One is .7(4), which is the $10 SSRS fee. The other one is subsection -- it's 2(2). That fee is $100 --
03-1230 +++$+++ 2240 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Hanson.
03-1230 +++$+++ 2241 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in order for a Michigan-plated vehicle to engage in interstate commerce.
03-1230 +++$+++ 2242 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Your time is expired.
03-1230 +++$+++ 2243 +++$+++ TRUE +++$+++ MR. HANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
03-1230 +++$+++ 2244 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Boynton, we'll hear from you.
03-1230 +++$+++ 2246 +++$+++ FALSE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The petitioner, American Trucking, began its reply brief with the claim that the central reality in this case is that the Michigan intrastate fee places significant burdens on interstate commerce. The Michigan Court of Appeals rejected this claim squarely, saying that as a matter of -- that that was a matter of pure speculation. There's no evidence in the record before this Court that the trucking companies' route choices are affected by the intrastate fee. Furthermore, there is no evidence in the record that the intrastate fee keeps anyone out from engaging in intrastate trucking in Michigan.
03-1230 +++$+++ 2247 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It sure does make sense to me, though. Surely it's the case that a company that does nothing but intrastate Michigan business will, by and large, log in many more miles intrastate than a company which does interstate business but part of its business is intrastate Michigan business. I -- I just -- it seems to me obvious that --
03-1230 +++$+++ 2248 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the Michigan Court of Appeals said that that very well may be the case, but they pointed to the fact that there were no facts to support that finding. And this is completely different than in Scheiner. In Scheiner you had a -- a trial, you had evidence before the court. This Court noted that the -- the cost to an interstate trucker in that situation was five times greater than the cost to a trucker that was in Pennsylvania. You just simply don't have those facts here. What you have is a discrete or a distinct local activity that is something that doesn't affect the interstate commerce.
03-1230 +++$+++ 2249 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It -- it's the case that a company that does only intrastate Michigan business logs all of its miles on -- in Michigan. Right? No miles outside of Michigan.
03-1230 +++$+++ 2250 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
03-1230 +++$+++ 2251 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And it seems to me it's obvious that a -- a company that does interstate business does not log all of its miles in -- in Michigan, and likely -- likely -- very likely does -- does less miles in Michigan than -- than a purely intrastate Michigan trucker.
03-1230 +++$+++ 2252 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Scalia, that very well may be true, but we don't have any way of -- of qualifying or quantifying the burden here because we don't have those facts.
03-1230 +++$+++ 2253 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is it difficult to apportion the intrastate fee based on the number of miles traveled intrastate?
03-1230 +++$+++ 2254 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I -- I think it is very difficult to do that. As the United States noted in its brief, they didn't think that mileage would be appropriate because this -- this fee doesn't support the maintenance of the highways. What this fee does is allows trucking companies or allows that truck to operate that truck in intrastate business. So mileage isn't appropriate. Our position is that mileage isn't appropriate because it's next to impossible to try and figure out. What do you compare it to? Do you -- do you compare it to interstate miles? Do you compare it to a ratio of interstate -- intrastate to interstate? And if you do that, how -- how can you come up with a accurate picture of, you know, what the value of that license is in Michigan? It may be --
03-1230 +++$+++ 2255 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Does it make any difference how high the -- the fee is set? If it were $10,000 a truck, does that raise any concerns that are different?
03-1230 +++$+++ 2256 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, the Michigan Court of Appeals had taken the position that this was a fee, not a tax, and under a fee -- if -- if a fee was $10,000, if the expenses matched the -- the revenue from it, well, then it -- it would be a -- could be sustained as a fee. Now, if were a tax --
03-1230 +++$+++ 2257 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You -- you defend that position, that -- that it doesn't violate the Commerce Clause so long as it's a fee not a tax?
03-1230 +++$+++ 2258 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we think that the -- if it's a fee and not a tax, the Michigan Court of Appeals applied the correct standard, and that was the standard of Pike v. Bruce Church. And you would look to the -- whether the statute regulated even-handedly, whether it affected a legitimate local --
03-1230 +++$+++ 2259 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Whenever it's a fee, not a tax, you immediately go to Pike Church.
03-1230 +++$+++ 2260 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that -- that that was what the Michigan Court of Appeals --
03-1230 +++$+++ 2261 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I know. I know that's what they said.
03-1230 +++$+++ 2262 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, and I -- I think that's a --
03-1230 +++$+++ 2263 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I found it very strange.
03-1230 +++$+++ 2264 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's an appropriate manner in dealing with it. But if you -- if you look at the Michigan Court of Appeals opinion --
03-1230 +++$+++ 2265 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What makes it a fee instead of a tax other than the court saying so?
03-1230 +++$+++ 2266 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, first of all, it provided a direct benefit to the intrastate truckers. They were able to operate in the State of Michigan. Second of all, they pointed out that it was in relation to the services granted, being able to do that, and then the third component would be the voluntariness, whether they could agree to -- they didn't have to engage in intrastate trucking --
03-1230 +++$+++ 2267 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You could say the same about a tax. You could say, you know, you only have to pay this tax if you operate in Michigan. You don't want to operate; you don't have to pay it. And you could also say unless you pay the tax, you cannot operate in Michigan. Does that make it a tax or a fee?
03-1230 +++$+++ 2268 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think in the Michigan Court of Appeals opinion, it -- it was a fee, and I think -- I think what we come back to, Your Honor, is the idea is there a specific class of individuals or businesses that are benefitted. And I think that that's the distinction between a fee and tax. Also, a tax is a general revenue-raising measure, whereas a fee is not. And that's another distinction of -- of a tax. And indeed, this Court -- in National Cable Industry v. the United States, which we cited in our brief, this Court said as whether an exaction is a tax or a fee depends on whether its purpose is to raise revenue or regulate an industry or services. One of the things --
03-1230 +++$+++ 2269 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'd like to get back just for a moment --
03-1230 +++$+++ 2270 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
03-1230 +++$+++ 2271 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- to the answer you gave about apportionment because I wasn't quite sure I understood the answer. You said, well, apportionment is very difficult. What are you supposed to do? What are you -- what's the base? Well, and you said, should we apportion against -- between in-state and out-of-state, and I would think the answer is yes. That's the whole point.
03-1230 +++$+++ 2272 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1230 +++$+++ 2273 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And if we're talking about mileage here, maybe this is something that's eminently susceptible of apportionment. Now, it may be that administratively this is just too expensive. That may be -- that may be a very valid argument. But so far as saying that there's no basis for apportionment, I didn't understand your answer.
03-1230 +++$+++ 2274 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I -- maybe I misspoke myself. What I really meant to say was it would be very difficult to do. And in our joint appendix -- in the joint appendix --
03-1230 +++$+++ 2275 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It would be difficult to do administratively. But -- just because of the cost of collecting all the --
03-1230 +++$+++ 2276 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think that you got to look at what's the total cost here. The cost is not only to the administrative aspect by the State, but this imposes another cost on the truckers.
03-1230 +++$+++ 2277 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That -- that -- I agree that that is expensive. However, it seems to me that it would be easier to do it with trucks which have miles than with --
03-1230 +++$+++ 2278 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Your Honor, the problem is --
03-1230 +++$+++ 2279 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- than with, say, attorneys or accountants or whatever.
03-1230 +++$+++ 2280 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the problem with that is that this fee, this intrastate fee, does not go to maintain the highways as it was in Scheiner. They make the argument that it's very easy that the mechanism -- they, being American Trucking, makes the argument that it's very easy to just start logging up the miles and -- and you have the mechanism there. But the difference between Scheiner and this case is that in Scheiner you were measuring all intrastate miles, any miles traveled within that State. And there's a mechanism available administratively to do that. The IRP requires that. But here you're not logging all intrastate miles. You're only logging those miles in the State that involve a point-to-point delivery, from one intrastate point to another. So you don't -- you'd have to get a whole new record keeping or you'd have to keep track of a while different set of miles than you would with respect to the IRP. And that's the thing that I find striking about this, that the American Trucking Association is basically saying to its members that they want to have them do more record keeping on their part.
03-1230 +++$+++ 2281 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But the American Trucking Association is -- is willing to be thrown into the -- into the briar bush apparently. It certainly involves no -- no difficulty for your Michigan intrastate truckers. All of their miles are intrastate. And the plaintiffs here say we're -- we're willing to -- you know, to provide figures showing how much of our carriage was -- was exclusively intrastate if you want to apportion.
03-1230 +++$+++ 2282 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that may be, Your Honor, but the -- the point is -- what we're dealing with is a -- a fee that has revenues of about $3 million. And if you have additional record keeping, how much of that $3 million is going to have to be devoted to paying for the administrative costs that are involved?
03-1230 +++$+++ 2283 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask this question? Is the fee payable before the -- a carrier may engage in business or is it after the carrier has paid? Is it -- is it like a tax that's paid after the year is out?
03-1230 +++$+++ 2284 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's paid before. They -- they have to have --
03-1230 +++$+++ 2285 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If you had to pay it before, there would be no way to calculate it ahead of time because nobody would have had any mileage. Isn't that correct?
03-1230 +++$+++ 2286 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry.
03-1230 +++$+++ 2287 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If you have to pay it before the year begins and before you're allowed to engage in the business, you would have no way of measuring the number of miles you're going to travel during the -- the ensuing year.
03-1230 +++$+++ 2288 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. You would have to have --
03-1230 +++$+++ 2289 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I suppose that's the same thing for the $10 fee for the whatever the acronym is there. That's paid at the beginning of the year, isn't it? And it has to be apportioned among the States. And you don't know how to apportion it at the beginning of the year.
03-1230 +++$+++ 2290 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Now, you're talking about the interstate fee, Your Honor.
03-1230 +++$+++ 2291 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right, right. But I'm saying the same problem arises when you do any apportioning.
03-1230 +++$+++ 2292 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it -- let me back up. The reason I asked with you -- when you were referring to the $10 fee is because the intrastate fee -- we have a $10 component in that as well. You can obtain a temporary fee for $10 for 72 hours to conduct an intrastate operation. So the statute in -- structurally has some apportionment factor in it. So you don't have to necessarily buy the $100 intrastate fee decal to conduct intrastate operations.
03-1230 +++$+++ 2293 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's like a 3-day fishing license.
03-1230 +++$+++ 2294 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I suppose that would be one way --
03-1230 +++$+++ 2295 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How -- how does that work in -- in practice? Is it easily accessible? Suppose the company --
03-1230 +++$+++ 2296 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1230 +++$+++ 2297 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- wants to fill up its truck and -- and it said, well, this is going to be -- the only haul this season for me, so I want the 3-day permit.
03-1230 +++$+++ 2298 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, you can obtain the permits in advance. You don't have to have trucks lined up at the border waiting to get a decal or get a permit. You can purchase them in advance. So that -- that's available to the truckers. The one thing I should mention, though, is you have to have one -- you already have to have one vehicle licensed intrastate. You already have to have paid the fee on one vehicle, and then you would be eligible to purchase additional temporary permits as the need arose based on seasonal needs or an emergency situation. So that -- that allows the -- the statute -- I -- I would submit to Your Honor, allows some apportioning in and of itself.
03-1230 +++$+++ 2299 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ This -- this applies only to operations that are both licensed and registered in Michigan. Is that so?
03-1230 +++$+++ 2300 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Your Honor I think is referring to the interstate fee --
03-1230 +++$+++ 2301 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right, right, yes.
03-1230 +++$+++ 2302 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- which is a different fee, which is in the Mid-Con case. Our position --
03-1230 +++$+++ 2303 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are you going to address the Mid-Con question?
03-1230 +++$+++ 2304 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry?
03-1230 +++$+++ 2305 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are you going to address the Mid-Con question?
03-1230 +++$+++ 2306 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I was going to do that right now, Your Honor. The position that the State of Michigan and the Michigan Public Service Commission has is the SSRS does not preempt the interstate fee. And the reason for that is --
03-1230 +++$+++ 2307 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, what's the point of the limitation in SSRS to $10 if the State can impose any additional fee it wants just by calling it a different name?
03-1230 +++$+++ 2308 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think what you have to realize is you have -- when you look at the text of the statute, I think what is very clear from reading the text is that the SSRS does not preempt all State fees and charges on motor carriers. It only preempts those fees and charges that are specifically related to the registration of that motor carrier's interstate authority. The interstate fee, or the Michigan-plated vehicle fee here, is not preempted because it's a regulatory fee that does not relate to the registration of the motor carrier's SSRS interstate authority.
03-1230 +++$+++ 2309 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Of course, it -- it does. Number one, it's somewhat suspect at the outset because it applies only to interstate travel.
03-1230 +++$+++ 2310 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1230 +++$+++ 2311 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And -- and then the -- the other vehicles pay $100 for the -- for the in-state fees, and so this seems to me that -- that on -- on its face shows that it's like a registration fee.
03-1230 +++$+++ 2312 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think a couple things. Number one, I think that -- I believe that if you look at the structure of the Michigan statute, you'll see that under section 2, which contains both the interstate fee and the intrastate fee, virtually all Michigan vehicles that are plated in Michigan -- the effect of it is that all vehicles that are plated in Michigan will have paid this $100 fee. And furthermore, if you look at section 7 of the Michigan statute, which is 478.7, that involves the registration procedure. That's specifically applicable to the registration of interstate authority. And within that section 7, subsection (4) deals with the payment of the $10 fee for -- and -- and it's to be made by vehicles that are not plated in the State of Michigan.
03-1230 +++$+++ 2313 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's -- that's the problem.
03-1230 +++$+++ 2314 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's the argument.
03-1230 +++$+++ 2315 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's the problem because here we're dealing with the fee to be paid by the people who are plated in Michigan, and it looks like that $100 is the fee for them. Well, let me -- I have a question. I'm trying to test this. Suppose that I have a company in Maine. All right? And I have -- I decide all my -- I -- I have all Maine plates, by the way. And I decide I want my -- now, let's -- one word is license plates. I'm going to talk about plating. Another word is the ICC insurance. Let's call it a decal. And the third kind of a concept is whatever you refer to in your statute by a fee. All right? The $100.
03-1230 +++$+++ 2316 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-1230 +++$+++ 2317 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. Now, suppose in Maine what I do with my trucks is I say I want Michigan to be my home State for purposes of -- what do you call it? The SS?
03-1230 +++$+++ 2318 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ SSRS.
03-1230 +++$+++ 2319 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes. And so I go to Michigan, and now I pay all the registration fees here. Do I get a -- a certificate of some kind, a decal or something to show I did it?
03-1230 +++$+++ 2320 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Your Honor, I -- I -- you say that you're a Maine company --
03-1230 +++$+++ 2321 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
03-1230 +++$+++ 2322 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but your principal place of business is in Michigan?
03-1230 +++$+++ 2323 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, yes. So -- that's right.
03-1230 +++$+++ 2324 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. And your question is?
03-1230 +++$+++ 2325 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do I get a decal after I go through all this procedure? You have a whole form. I pay $6 for Alabama. I pay $2 for Idaho, and -- but -- but I do it all in one shopping place which happens to be Michigan.
03-1230 +++$+++ 2326 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
03-1230 +++$+++ 2327 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Then do I get a little certificate to put on the truck to say I did it. I -- I registered my ICC decal everywhere.
03-1230 +++$+++ 2328 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If that vehicle -- if the vehicle you're registering is plated in Michigan --
03-1230 +++$+++ 2329 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, it's not.
03-1230 +++$+++ 2330 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. You will pay nothing.
03-1230 +++$+++ 2331 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I know for Michigan. But I have to pay. But Michigan is my -- I can't ask the question until I get clear on this.
03-1230 +++$+++ 2332 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry.
03-1230 +++$+++ 2333 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Don't -- when I -- when I go under this -- this 49 U.S.C. 14504 and I choose a home State --
03-1230 +++$+++ 2334 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
03-1230 +++$+++ 2335 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- and I make all the relevant payments to that State, but they distribute, don't I get a piece of paper saying I did it?
03-1230 +++$+++ 2336 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe so, Your Honor.
03-1230 +++$+++ 2337 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Fine. Now, I'm now plated in Michigan, and I make Michigan my home State for this. And I go and I make -- I say, Michigan, I'm going to give you this big check to distribute, but the amount I'm putting here for Michigan, by the way, is zero. And you say pay me $100. No. I'm not going to do it. So I haven't paid them the $100. I haven't paid Michigan everything, but I paid $2 for Idaho. Do I get the decal or don't I?
03-1230 +++$+++ 2338 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To get a decal from Michigan, you have to be Michigan-plated and you have to pay the $100.
03-1230 +++$+++ 2339 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Excellent. Now, if I don't get the decal, because I didn't pay the $100, then that $100 is a charge that falls within the SSI. It is a charge for a decal which shows that I registered the ICC and my insurance because otherwise, if it weren't, you'd give me the decal.
03-1230 +++$+++ 2340 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we believe that under the -- the section 7 of the Michigan law, there is no fee charged for your SSRS.
03-1230 +++$+++ 2341 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm talking about a fee. I'm trying to -- oh, fine. If there's no fee charged and I didn't pay the $100 and I didn't pay anything else, you'd give me the decal. But you said you wouldn't.
03-1230 +++$+++ 2342 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, you have to -- you have to -- if it's Michigan-plated, that's the triggering mechanism. It's not the -- that's -- that's what triggers the $100 fee.
03-1230 +++$+++ 2343 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Boynton, may I just -- may I just ask this question? Is part of your position that the Federal statute does not prevent Michigan from waiving the $10 fee on -- for this particular purpose?
03-1230 +++$+++ 2344 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our position, with respect to that, Your Honor, is the fact that under section 7 of the Michigan Motor Carrier Act, 478.7, Michigan has no authority to charge a Michigan-plated vehicle any fee at all.
03-1230 +++$+++ 2345 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right. So that -- but you're saying to Justice Breyer then is they have waived the $10 and they do it to a narrow class, those vehicles who are plated in Michigan because they've already charged them $100, a very heavy charge for the privilege of being plated.
03-1230 +++$+++ 2346 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't know if I'm saying that, Your Honor. I'm saying that the -- there's a zero charge, and then there's -- there's another charge with respect to a vehicle fee. The one thing that I need to point out here is that the SSRS is not vehicle-specific. It talks about numbers of vehicles, but the Michigan decal fee for -- or the interstate fee is vehicle-specific. You have to identify the particular --
03-1230 +++$+++ 2347 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that right? Let me -- let me -- I wanted to ask this question to see whether it's vehicle-specific. Suppose I have nine trucks. They're Michigan-plated, so I have to pay $100 for each of the nine.
03-1230 +++$+++ 2348 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Interstate commerce.
03-1230 +++$+++ 2349 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now, suppose I -- suppose I only pay the fee for eight of them. What happens?
03-1230 +++$+++ 2350 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And how do you want to use the truck? Do you want to use it in interstate commerce?
03-1230 +++$+++ 2351 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. I've paid for eight, but I haven't paid for the ninth. As I read the Michigan law, it says shall not operate any motor vehicle upon or over the highways of this State while any of the fees imposed by this act remain unpaid. Now, if -- if I can't operate the other eight because I haven't paid for the nine, that sounds to me like a vehicle-specific tax.
03-1230 +++$+++ 2352 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, it is.
03-1230 +++$+++ 2353 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I mean -- I mean the opposite. It's -- it's not vehicle-specific.
03-1230 +++$+++ 2354 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh.
03-1230 +++$+++ 2355 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I've paid for the eight, and I can't operate at all because I haven't paid for the ninth.
03-1230 +++$+++ 2356 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think administratively that -- that wouldn't happen. I -- I think once you go --
03-1230 +++$+++ 2357 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It seems to me how it reads. Am I reading the law wrong? It says, shall not operate any motor vehicle while any of the fees imposed by this act remain unpaid.
03-1230 +++$+++ 2358 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I suppose that if the -- for -- for nonpayment of fees, a motor carrier risks its authority to operate in the State.
03-1230 +++$+++ 2359 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ At all. So it's not really vehicle-specific.
03-1230 +++$+++ 2360 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I think it is. I would disagree with Your Honor.
03-1230 +++$+++ 2361 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, the computation is vehicle-specific, but you're using all the vehicles as hostage for the payment of -- of any shortfall. That's what you're doing, isn't it?
03-1230 +++$+++ 2362 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So it's carrier-based.
03-1230 +++$+++ 2363 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I would have to disagree with Your Honor respectfully. I think that the -- that it is vehicle-specific because it identifies the particular vehicle that's involved here. And I -- I think you have to read the statute, the preemption statute, the scope of what preemption has sought to do here, and not all State fees and charges on motor carrier vehicles are preempted.
03-1230 +++$+++ 2364 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you place any reliance in this scheme on the fact that the only people subject to it are people who have their principal place of business in Michigan?
03-1230 +++$+++ 2365 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. The triggering event for the interstate fee is the plating of the vehicle in Michigan.
03-1230 +++$+++ 2366 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And -- and anyone can choose to do that? I mean, going back to Justice Breyer's example, anybody can say, well, I think I'd like to be plated in Michigan even though I operate in -- in other States. My principal place of business is in another State.
03-1230 +++$+++ 2367 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. I think all parties have noted, Your Honor, that the -- under the SSRS it's much more stringent, more rigorous --
03-1230 +++$+++ 2368 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. I'm just asking about what you do in Michigan.
03-1230 +++$+++ 2369 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Yes, you can.
03-1230 +++$+++ 2370 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You really can do that?
03-1230 +++$+++ 2371 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You can plate wherever you have contacts with the State. If your principal place of business is in Ohio but you have trucks going to and from Michigan, that -- that would allow you to plate in State of Michigan.
03-1230 +++$+++ 2372 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You -- you can plate your whole fleet in Michigan under those circumstances.
03-1230 +++$+++ 2373 +++$+++ TRUE +++$+++ MR. BOYNTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You could -- you can choose where to plate your feet -- plate your trucks, and a number of considerations go into that. It's not just the license plating fees. It has everything to do -- as we noted in our brief, it could have to do with no fault insurance, the weight limits on trucks. It's an economic decision and there's a number of different factors that go into that decision of where to plate a vehicle. In conclusion, I would say that the Michigan Court of Appeals correctly decided this case. And they -- they found that the challenged fees in these cases are regulatory fees, that they serve the critical function of protecting the people of Michigan that use the highways. And the Michigan Court of Appeals should be affirmed.
03-1230 +++$+++ 2374 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Boynton. Mr. Stewart, we'll hear from you.
03-1230 +++$+++ 2376 +++$+++ FALSE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The United States as amicus curiae supports the State in American Trucking and the petitioner in Mid-Con. With respect to American Trucking, in our view the central question in resolving the constitutional issue is not whether it would be possible to apportion the intrastate fee on a more precise basis. The question is whether the Constitution requires it. And in the prior cases that we've cited in our brief, both the older cases dealing specifically with intrastate transportation and the more recent cases dealing with authority to engage in other intrastate businesses, this Court has repeatedly upheld the authority of States and municipalities to charge flat fees for the privilege of engaging in the local business within the jurisdiction during the -- the relevant period of time. And that practice --
03-1230 +++$+++ 2377 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That seems to me really to go back on -- on Scheiner. And I thought we tried to get away from deciding Commerce Clause questions on the basis of whether it is interstate commerce or local commerce, you know, the original package doctrine and things that succeeded it. And you're -- you're just dragging back in this -- this inquiry into whether it's really interstate or -- or rather local.
03-1230 +++$+++ 2378 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, with -- with respect, Your Honor, I think the Court has certainly abandoned the notion that there is a bright, absolute line between intrastate activities which are subject to plenary regulation by the States without any Commerce Clause inquiry and interstate commerce which is wholly immune from State regulation. The Court has recognized that the question is more complicated than that. But in cases like Jefferson Lines, for instance, the Court held that the sales price of a ticket for an interstate bus trip could be taxed in -- in its entirety by the State in which the ticket was purchased because the sale of the ticket was regarded as a separate, discrete event properly severable from the underlying interstate transaction. And the case for severance is all the more powerful here. That is, here we're dealing not with a -- an aspect of an interstate transaction, we're dealing with point-to-point hauls within the State of Michigan. It's true that those may be undertaken by trucks that also do interstate business, and it's even true that in some instances the intrastate load may be carried on the same truck at the same time that it's also carrying goods between the States. But the intrastate haul is itself a discrete commercial transaction. To the shipper it's wholly irrelevant, in most instances, that the -- the truck is also doing an interstate business. And to differentiate this case from Scheiner, one of the things that the Court has looked at in the dormant Commerce Clause inquiry is the risk of multiple taxation. And the Court doesn't just mean multiple taxation in -- in the abstract because it's necessarily going to be the case that an entity that does business in many States will be taxed in many States. Rather the question is whether there's an undue risk of multiple taxation on the same transaction or the same conduct or the same activity. And that was at real risk in Scheiner because if you imagine a truck that's delivering cargo from Maine to Florida and passing through several States on the way, and it's required to pay a fee that is, in essence, a fee for entering the State, has nothing to do with the mileage traveled within the jurisdiction, it's entirely reasonable to say that the imposition of those cumulative trips -- cumulative taxes for a single haul of goods from Maine to Florida is an instance of multiple taxation of the same event. Here we don't have a problem with that. The tax is being levied solely on point-to-point hauls within the State of Michigan. If a particular truck also makes point-to-point hauls in some other State within the calendar year, it may be subject to two taxes, but they can't be characterized as two taxes on the same conduct or the same transaction. The second aspect of -- of Scheiner --
03-1230 +++$+++ 2379 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, it could. I mean, if -- if this -- this truck is making one -- one haul, it's carrying some goods from Texas to -- to Maine, but some other goods it picks up along the way within Tennessee and just carries it to another place within Tennessee, and then it picks some other goods in New Jersey, carries it elsewhere to New Jersey, you're going to be taxed. It seems to me it's -- it's one trip. We never used to -- used to divide railroads on the basis of well, the ICC has jurisdiction over just the interstate portions and -- and the two stops within a State can be regulated by the State.
03-1230 +++$+++ 2380 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I mean, I think you're right that it wouldn't be reasonable to regard the within-Texas segment or the within-Oklahoma segment of a transfer of goods between States as a discrete, separable event. But if the truck is picking up goods at one point in Texas and depositing them at another point in Texas, again from the shipper's point of view, that's clearly a discrete transaction. The shipper is unlikely to have any interest in whether the same truck is simultaneously carrying goods among the States. And it's reasonable to regard that as a discrete event that is taxable by the State in which it occurs. The other point to make about Scheiner is that even if we assume, as the petitioner argues, that the average interstate truck that makes some point-to-point hauls within Michigan will do so less frequently than the average truck that does business solely within that State, there's still a whole different class of interstate truckers that makes substantial use of Michigan's roads that could be charged taxes on the basis of mileage traveled and they're being let off the hook because the State has chosen to focus this tax on intrastate activity. Petitioners' response to this is that you can't discriminate against one class and then make up for it by -- by discriminating in favor of a different class. And if this were, to use title VII terminology, a disparate treatment case, we would agree. That is, if a State overtly discriminates against one class of interstate or out-of-state activities and on the face of the law those people are treated less favorably, then we would entirely agree that the State couldn't make up for it by giving more favorable treatment to a different class of out-of-state entities. But here the petitioner is making what amounts to a disparate impact claim, and the essence of a disparate impact claim is not that any particular individual has suffered unfair treatment. The way you prove a disparate impact claim is to show the effect cumulatively upon the class, upon interstate truckers in this case in the aggregate. And there's really no way to feel any kind of confidence that interstate truckers won't do better as a group by virtue of Michigan's decision to focus this tax on intrastate activity rather than on the basis of mileage, which would sweep in a lot of out-of-state truckers that are not currently covered. I'd like to speak briefly at least about the -- the Mid-Con case. And in our view the best way of understanding -- to -- to return to the historical antecedents of the current SSRS provision, in its original form, as enacted in 1965, the statute said it's not an unreasonable burden of -- on interstate commerce to require an interstate carrier to register its Federal certificate so along as you do so in accordance with the standards of the ICC. If you go beyond those standards, it's an unreasonable burden on commerce.
03-1230 +++$+++ 2381 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'd like to know the text you rely on.
03-1230 +++$+++ 2382 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That was --
03-1230 +++$+++ 2383 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ For -- for preemption, the text of the current statute that you rely on.
03-1230 +++$+++ 2384 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The text of the current statute is set forth at page 82 of the appendix to the certiorari petition in Mid-Con, and it's now 49 U.S.C. 14504(b). And the statute says, the first sentence, the requirement of a State that a motor carrier providing transportation subject to jurisdiction under subchapter 1 of chapter 135 -- and that refers to interstate transportation -- providing interstate transportation and providing transportation in that State must register with the State is not an unreasonable burden on transportation referred to in section 13501.
03-1230 +++$+++ 2385 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ 13501 deals just with SSRS.
03-1230 +++$+++ 2386 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. 13501 is the provision that -- that defines the general regulatory jurisdiction of the Department of Transportation and the Surface Transportation Board. And it basically says these agencies have general regulatory jurisdiction over transportation between points in one State and points in another State and -- or between points in the same State passing through another State. So in -- in using that shorthand reference, the Congress just means interstate transportation.
03-1230 +++$+++ 2387 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask this question? Because I know your time is short. Supposing Michigan imposed a new $10 fee per -- and it identified it precisely as in order to comply with that statute and then reduced its present plating fee from $100 to $90, would that be permissible?
03-1230 +++$+++ 2388 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, as long as the -- again, to -- in our view the distinctive and disqualifying feature of the current statute is that subsection (2) is imposed specifically on vehicles that operate entirely in interstate commerce. And if Michigan reduced to $90 the extra --
03-1230 +++$+++ 2389 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm not saying -- they reduced to $90 the plating fee, but then they enacted a new $10 fee specifically designed to comply with the statute.
03-1230 +++$+++ 2390 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As long as --
03-1230 +++$+++ 2391 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Could they do that?
03-1230 +++$+++ 2392 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As long as they were still imposing that additional -- again --
03-1230 +++$+++ 2393 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The $90 is for plating. It said only -- only Michigan-plated vehicles pay the $90. Everybody else -- everybody -- and everybody also pays the $10.
03-1230 +++$+++ 2394 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As long as that $90 fee was imposed not just on Michigan-plated vehicles generally, but specifically on Michigan-plated vehicles that operate entirely in interstate commerce, we would say that's preempted because our reading of the statute is that basically Congress has said there's a severe limit on what you can do to interstate carriers that you don't do to intrastate carriers.
03-1230 +++$+++ 2395 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where does it say that? Let -- let me come back to the -- to the section of the statute you're quoting. You didn't finish the sentence. It says that it's not an unreasonable burden when the State registration is completed under standards of the Secretary under subsection (c). Subsection (c) is entitled SSRS, Single State Registration System.
03-1230 +++$+++ 2396 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ May I answer, Mr. Chief Justice?
03-1230 +++$+++ 2397 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Briefly.
03-1230 +++$+++ 2398 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The State doesn't argue that this registration was completed in accordance with this standard. It argues that the provision doesn't apply at all because this is not the sort of registration requirement that the statute speaks of. We think it is because it's imposed strictly on interstate carriers.
03-1230 +++$+++ 2399 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Stewart. Mr. Digges, you have 4 minutes remaining.
03-1230 +++$+++ 2401 +++$+++ FALSE +++$+++ MR. DIGGES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. I'd like to just briefly cover three points. First, I believe that -- that is accurate to say that the Solicitor General's position is returning us to the pre-Complete Auto days of line-drawing, but more than that, the Solicitor General's position is ignoring the practical effect of these fees on taxpayers. I think the -- the citation to the Peddler v. Drummer line of cases illustrates that. The only difference between the Peddler cases and the Drummer cases was that in the -- in the Nippert case and -- and the Drummer case, they looked at the practical effect on an out-of-state salesman and whether that salesman would be discouraged by the $50 fee that was being imposed from coming into the State. In the Wagner case, they simply said that the fee fell on an essentially local event, didn't look at the form of the fee, didn't look at the form of the fee on the out-of-state salesman. I don't think it can be disputed that to out-of-state -- that out-of-state salesmen would be equally discouraged from coming into a State because a $50 fee or a $100 fee, whether or not they're carrying the goods with them in at that time or whether the goods are later mailed in. So, again, I think it is returning to the line-drawing issues, and really there is no test that is made as to, after you -- you draw these lines, what the appropriate test should be. The second point is it -- with respect to the administrative practicality of apportioning these fees. The purpose of apportionment would not be, as in a highway tax, to -- to show the amount of highway damage that was done by a truck. The purpose of apportionment here is simply to show the extent of the taxpayer's level of activity in the State. It would be like a general revenue tax in which we're trying to allocate the taxpayer's activity to particular States, make sure that that taxpayer is paying its fair share of the State's costs with respect -- of the State's generic costs, in this case, generic regulatory costs. So, again, I think that apportionment would be very easy. As Justice Scalia said, the trucking industry is willing to take the onus of this. We bill by the mile. You could do it on number of loads. You could do it in a lot -- a lot of ways. And by apportioning the fee, you eliminate the burden and you make the out-of-state carrier, who would be otherwise prohibited from only hauling a load or two -- he would then have the ability to haul that load and -- and not be discriminated against. The final area I'd like to talk about a little bit is the need for additional -- the need for evidence in this case. Again, in the Nippert and the Scheiner cases, there -- they -- they -- it was expressly said that there was no need for evidence in the cases because in the general average of instances, the out-of-state trucker will always pay more than the in-state trucker. And in answer to your question, Justice Stevens, I think it was recognized in those cases that there would be some exceptions to that rule. There would be a few out-of-state carriers that would operate more heavily in the State than in-state carriers. But that exception wasn't -- wasn't what was going to happen and the most often, and that the average of instances, it would always work to the disadvantage of the out-of-state carriers. And -- and the final point is that with respect to evidence, you have here also a failure of internal consistency test, and this Court has said a number of times that failure internal -- of internal consistency is not a test related -- it doesn't rely on specific facts but it relies on hypotheticals. And in this instance, I think there's a very clear failure of internal consistency. Like in Scheiner, there's a cumulative burden on an out-of-state trucker. If a trucker wants to operate in intrastate commerce around the country, it has to -- and just haul one load in every State, it has to pay 48 times a $100 fee or pay $4,800 in eligible -- in order to be eligible to haul in all of those States. So that illustrates how that's going to balkanize commerce, that that carrier is not going to be able to pay that kind of entrance fee nationwide. So that carrier will operate in less intrastate activities in -- in only a few States or maybe none. And again, we think that that defeats the purpose. When Congress passed economic deregulation of the trucking industry, that they wanted to open it up to out-of-state carriers to be able to augment their interstate loads.
03-1230 +++$+++ 2402 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Digges.
03-1230 +++$+++ 2403 +++$+++ TRUE +++$+++ MR. DIGGES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
03-1230 +++$+++ 2404 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The case is submitted.
03-1237 +++$+++ 2408 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument now in the Merck KGaA v. Integra Lifesciences. Mr. Rosenkranz.
03-1237 +++$+++ 2410 +++$+++ FALSE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your -- Mr. Chief Justice, and may it please the Court: Your Honors, there is no dispute among the parties, nor among the 19 amicus briefs presented before the Court today. As to the answer to the threshold legal question, everyone agrees that the FDA exemption does, indeed, apply, with full force, to the sorts of experiments that are conducted and that would be relevant to the FDA in consideration of an Investigational New Drug application, a so-called IND. So the battleground now shifts to Integra's alternative arguments in support of the judgment --
03-1237 +++$+++ 2411 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, would you just clarify something for me as we start to consider the case? I guess this thing went to the jury under an instruction that tried to come to grips with the definition under the statute in some way. Was that instruction one to which Merck preserved an objection?
03-1237 +++$+++ 2412 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. We did not object to the core of the jury's instructions stating the legal standard. And we --
03-1237 +++$+++ 2413 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you think it was properly stated in that instruction?
03-1237 +++$+++ 2414 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The core of the instruction, yes, Your Honor, was --
03-1237 +++$+++ 2415 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's as good as we could do.
03-1237 +++$+++ 2416 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I believe -- the answer is, the core was as good as this Court can do, and
03-1237 +++$+++ 2417 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. And, under that, you think that Merck was entitled to a directed verdict --
03-1237 +++$+++ 2418 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-1237 +++$+++ 2419 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- from the evidence?
03-1237 +++$+++ 2420 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was entitled to a verdict as a matter of law, but let me just --
03-1237 +++$+++ 2421 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, but the Court of Appeals for the Federal Circuit did not address the case in -- by looking at the evidence and whether a directed verdict should have been given --
03-1237 +++$+++ 2422 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the --
03-1237 +++$+++ 2423 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- or not?
03-1237 +++$+++ 2424 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the Federal Circuit did understand that this was a JMOL case --
03-1237 +++$+++ 2425 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know, but it seemed to decide the case based on its view of the statute as just applying to generic drugs or something like that.
03-1237 +++$+++ 2426 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is absolutely correct, Your Honor.
03-1237 +++$+++ 2427 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it didn't, in fact, come to grips with the evidence.
03-1237 +++$+++ 2428 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It absolutely did not come to grips with the evidence, nor did it grapple with the alternative arguments that Integra was presenting --
03-1237 +++$+++ 2429 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, so --
03-1237 +++$+++ 2430 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- so they --
03-1237 +++$+++ 2431 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- maybe all we have to do is deal with whether that court should have addressed the evidence.
03-1237 +++$+++ 2432 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be one answer, Your Honor, reverse and not addressing the alternative legal grounds, but I would urge this Court to address the alternative grounds, because they raise --
03-1237 +++$+++ 2433 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All of them? You mean, like the research tools problem?
03-1237 +++$+++ 2434 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, because the research tools problem was never presented --
03-1237 +++$+++ 2435 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No.
03-1237 +++$+++ 2436 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- as an issue before the jury or before the District Court. And --
03-1237 +++$+++ 2437 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or the Tripps Treaty?
03-1237 +++$+++ 2438 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
03-1237 +++$+++ 2439 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No.
03-1237 +++$+++ 2440 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In fact, that's not even raised by Respondents. It's raised by amici's --
03-1237 +++$+++ 2441 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. And how about the common-law research example --
03-1237 +++$+++ 2442 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would -- I would urge the Court not broach the subject of any of the questions that are not properly presented --
03-1237 +++$+++ 2443 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, so --
03-1237 +++$+++ 2444 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to this Court.
03-1237 +++$+++ 2445 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- all we're doing is looking at the statute.
03-1237 +++$+++ 2446 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We're --
03-1237 +++$+++ 2447 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you.
03-1237 +++$+++ 2448 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, we're looking at the statute --
03-1237 +++$+++ 2449 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
03-1237 +++$+++ 2450 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but it is an -- it is important, in answer to the very first question, to embellish a bit, because the lower courts need this Court's guidance, because every one of the theories on which Integra defends the judgment below raise exactly the same problems that the Federal Circuit's opinion raises. They defy the plain language of the statute Congress passed. They are equally at odds with the purpose that Congress had in mind when it passed the FDA exemption.
03-1237 +++$+++ 2451 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What are the alternative grounds that you're discussing now passed on by the Federal Circuit?
03-1237 +++$+++ 2452 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, they were not passed on by the Federal Circuit, except perhaps to the extent that the Federal Circuit may have concluded that all -- or that, excuse me -- that safety is the only issue before the FDA when it is considering an Investigational New Drug application, or that a drug innovator may not harbor additional purposes in an experiment beyond the FDA exemption, or that the -- excuse me -- beyond FDA regulatory purposes -- or, third, that the exemption does not cover efforts to optimize the drug candidate after it's identified and that drug candidate is, in fact, the lead candidate. Those are the three legal theories, Your Honors, on which Integra is resting its defense of the judgment below. And every single one of them is either incorrect as a matter of law or immaterial as a matter of law. If this Court were to ask Integra to come up with a single genuine issue of fact that does not relate to one or another of those three propositions, it will not be able to do so, save a footnote to be addressed later about the credibility of witnesses on a topic on which Integra never argued the witnesses were not credible. Just beginning with the safety question, and I'll defer to the Government on that, because the Government can speak better than anyone else as to what it is that is relevant to the FDA in consideration of an IND, suffice it to say that the regulations say, as a matter of law, that safety is not the only consideration before the FDA as it considers an IND. The FDA cares very much about whether a drug will work: efficacy. The FDA cares very much about how it works: mechanism of action. It cares about what the body does to that drug: pharmacokinetics. And it cares very much about what that drug does to the body: pharmacology. And Integra's position before the jury, and before this Court, depends upon the proposition that it can bring in a witness to argue that the law is other than what the law clearly is. And the same thing goes for the so-called GLP studies that the FDA considers in connection with safety data, but need not limit itself to GLP studies when it's considering those other IND-relevant topics.
03-1237 +++$+++ 2453 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Rosenkranz, just one piece of information. Because the IND is so important at this point, is it in the record -- do we have a copy of the IND?
03-1237 +++$+++ 2454 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The IND, Your Honor, is not in the record, because it was excluded from evidence, which may be why the jury reached the wrong conclusion. But, I hasten to add, that will not be uncommon in these sorts of cases, because there are many circumstances in which a preclinical study begins and fails, and the IND will never materialize. There are circumstances in which a preliminary injunction is brought and won, and the research stops cold, so an IND never materializes. And, again, it's important to understand, as one assesses the FDA exemption, that the inquiry is always ex ante, it is always, "What is a reasonable drug innovator? What does that drug innovator or scientist know at the point in time at which it is about to perform the next set of experiments?" So you always reflect back to a point in time before the IND materializes.
03-1237 +++$+++ 2455 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Rosenkranz, the items you listed earlier seemed to me to more narrow than what I took to be the point of your opening brief, which was that the decision below was wrong because the Federal Circuit simply excluded all consideration of materials prepared for purposes of the IND, as opposed to materials prepared for the -- for the drug application, later on. Are you abandoning that more expansive position?
03-1237 +++$+++ 2456 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
03-1237 +++$+++ 2457 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because I don't read the opinion that way. I don't think that opinion has to be read to say that they're not going to allow in anything that goes to the IND.
03-1237 +++$+++ 2458 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, there is certainly a way to read the Federal Circuit's opinion -- and this is also in response to Justice O'Connor's earlier question -- in which it did grapple with the very questions we're talking about now, and did answer the questions about whether it's just safety -- and I believe the Federal Circuit believed that only safety data were relevant; that is certainly what it indicated in oral argument -- and also that dual purposes are not permissible. So let me now turn to the dual-purpose question, because it's another major theme of --
03-1237 +++$+++ 2459 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Have you answered my question? You're abandoning the assertion that the Federal Circuit did not consider anything that didn't go to the IND -- that didn't go to the --
03-1237 +++$+++ 2460 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
03-1237 +++$+++ 2461 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- drug application.
03-1237 +++$+++ 2462 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. I believe that there are two ways to read the Federal Circuit's opinion. To the extent that the Federal Circuit said nothing before the clinical stage is relevant to the FDA exemption -- if that is what the Federal Circuit held, we are -- we are not abandoning the position that that is wrong. I understand that there is another way to read the Federal Circuit's opinion that grapples with the subsidiary questions that we're discussing here, which are all fairly presented in our question presented. And that's what I'm addressing myself to now.
03-1237 +++$+++ 2463 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ For your first answer, are you relying what the Federal Circuit said in its opinion -- and it's in 10a of our cert petition appendix -- that is, the Federal Circuit's statement of the question presented, whether the preclinical research conducted under Scripps-Merck agreement is exempt from liability for infringement of Integra's patents.
03-1237 +++$+++ 2464 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. And then, two pages later, on 12a, the Federal Circuit states its conclusion, and I quote, "Thus, the Scripps work sponsored by Merck was not solely for use as reasonably related to clinical testing for the FDA."
03-1237 +++$+++ 2465 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but it -- it's not at all clear in the opinion that the Court was using preclinical and clinical in the very technical sense that you were -- that you use it, which means "clinical" is stuff submitted for the drug application, and "preclinical" is for the earlier application. That is not at all --
03-1237 +++$+++ 2466 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it's not at all clear. And, just as in Boyle, when this Court faced a situation where it wasn't clear what the Federal -- or, excuse me -- what the Court of Appeals held, the Court --, "The best thing for this Court to do is to address what appears to be the threshold question that the Court of Appeals decided," but then also to address the subsidiary questions on the basis of which Integra is defending the judgment below.
03-1237 +++$+++ 2467 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, Mr. Rosenkranz --
03-1237 +++$+++ 2468 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ A moment ago -- a moment ago, you were reading from 12(a). Was it the first sentence you were reading from?
03-1237 +++$+++ 2469 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was the first paragraph, and I was reading from the end of that paragraph, Your Honor, the -- which begins, "Thus," three lines -- really two -- the word "thus" is at the end of the third line from the bottom of that paragraph, Your Honor.
03-1237 +++$+++ 2470 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you.
03-1237 +++$+++ 2471 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And so, I was saying earlier that a critical component of Integra's case revolves around the notion that the use may not have more than one purpose, and that purpose can only be FDA directed. That argument is also incorrect as a matter of law. And one way we can tell that is that there is no such thing as a preclinical course of study that has only one purpose. When one is studying mechanism of action, a scientist is deeply interested, not just in how this drug works, but in how the disease works. And the language of the statute is, of course, the touchstone here. The statute is triggered by uses. The use, in this context, is an experiment. And the statute covers, provides a safe harbor for, experiments that develop the sorts of information that are relevant to the FDA. If that --
03-1237 +++$+++ 2472 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would that -- would that -- would that be explained by the research-tool doctrine, or not?
03-1237 +++$+++ 2473 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, absolutely not, Your Honor. The research-tool question -- let me begin by saying, these were not research tools; these RGD peptides were the objects of study.
03-1237 +++$+++ 2474 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I guess what I was asking, Would you ever use the peptide as a research tool, was my -- was my question.
03-1237 +++$+++ 2475 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, yes, Your Honor. There are circumstances in which these peptides could be used as research tools to stunt the growth of blood vessels and study what happens next with other compounds, but they were emphatically not used as research tools in this case. In this case, they were the objects of study, and Integra won a jury verdict based upon that presentation. And, in fact, never argued to any court or to the jury that there is a resource tool carve out. So, I was just talking about the subjective purpose earlier, and it is -- again, it's important to note that the information can be used for other purposes. There's nothing in the statute that prohibits that. Now, let me turn, just briefly then, to what is often one of the most important questions in these FDA exemption cases, which is the timeline question. At what point in the arc of drug development is it unreasonable for a jury to conclude that the FDA is an inappropriate audience for the next set of experiments? Our position -- and people may differ, as a matter of law, as to whether it is earlier -- but our argument is, at a bare minimum, at the point in time at which a drug developer has a known structure and cures a disease in an animal with that known structure, all eyes turn to drug development; which is to say, all eyes turn to the FDA. As a matter of law, everything after that, so long as it's relevant to the FDA, is FDA -- is appropriate to view as FDA directed.
03-1237 +++$+++ 2476 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you agree then that at whatever period, however you want to describe the period, at which the researcher is basically trying to figure out what drug to concentrate on, that that period is too far back in time to come within the exception?
03-1237 +++$+++ 2477 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. That's exactly the trigger moment. If it has a structure, and it's investigating analogs of that structure to figure out which of these various structures are the best ones to move forward, everything from that point on is FDA directed.
03-1237 +++$+++ 2478 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, here's what -- here's the problem I have with your argument. I can understand that argument more easily under the statute, under the text of the statute as it is written, than I can understand it under the instruction that you agreed to, because the instruction that you agreed to had a limitation, a textual limitation which is not in the statute itself, that refers to "relatively directly" as describing the relationship between this information and its object. And if we decide this case on the basis of the statute, and we read the statute more broadly than the instruction, then you're getting something that you're not entitled to, because you agreed to the instruction. If we decide this issue by construing the statute as if your instruction is correct, then we're making an assumption about the proper construction of the statute that has not been argued here.
03-1237 +++$+++ 2479 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor --
03-1237 +++$+++ 2480 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It seems to me that the law of the case, as to what the statute means for your case, is set by the instruction, and that is why I am reluctant to get into the issue that you raise here, because I think we're rather -- you are limited, and we are tied in what we can do as a result of your agreement with the instruction.
03-1237 +++$+++ 2481 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor -- and I see my time is running out; I'd like to reserve a bit for rebuttal, so let me answer, just briefly. Under Praprotnik, of course, this Court is not bound by law of the case by the instruction. But the instruction, as I understand it, says exactly what the statute says. "Reasonably directly" is simply another way of saying, "Are these activities reasonably related to the FDA purposes?" And every one of the comparative experiments is relevant to the FDA's inquiry, whether this drug or that is the optimum drug. Every experiment that is involved here -- and there were only 10 percent that were comparative in nature -- develops information about the lead drug candidate, including understanding why this one works, rather than that one. So, if it's all right, Your Honors, I'd like to reserve the remainder of my time for rebuttal.
03-1237 +++$+++ 2482 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Very well, Mr. Rosenkranz. Mr. Joseffer.
03-1237 +++$+++ 2484 +++$+++ FALSE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: I believe the question before the Court is the proper construction of the statute, and we believe the lower courts committed three important legal errors that should be corrected. The first is in drawing the clinical/preclinical distinction. And, understanding that, Justice Scalia, I think the important thing to understand is that clinical studies refer to studies conducted on humans, and at the IND stage, the whole question is to decide whether studies should be conducted on humans. So at that point in time the only information that's available is the preclinical studies on animals and in test tubes. So when the Court distinguished between preclinical and clinical, it was essentially saying, you cannot do the information that's necessary to submit an IND, necessary to do clinical trials, necessary to get your drug approved. And that's why we -- it seems to us that that's clearly wrong.
03-1237 +++$+++ 2485 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you have to have the FDA's permission to start clinical testing?
03-1237 +++$+++ 2486 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that's the purpose of an IND application, is -- the whole -- the only thing that FDA is looking at, at that point, is whether to permit human clinical trials to proceed. The second important legal error committed by the Federal Circuit was in apparently concluding that only tests regarding the compounds ultimately submitted to FDA in an IND are subject to the protection. Now, the problem with that is that a company can decide which specific compound to submit only by first comparing -- doing studies on that compound and on others in order to determine which would be the best compound to submit, which would strike the best balance between obtaining health effects or avoiding safety concerns. So, if the exemption only --
03-1237 +++$+++ 2487 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you state again what you say the second error was?
03-1237 +++$+++ 2488 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The second error, we believe, is that the Federal Circuit indicated that only studies undertaken on the single compound ultimately submitted in an IND are protected by the exception. And the problem with that is that I can't figure out what that one compound is until I've done studies on it and on other compounds to determine --
03-1237 +++$+++ 2489 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That --
03-1237 +++$+++ 2490 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- which is the best to submit.
03-1237 +++$+++ 2491 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that might well determine whether the research was relatively directly related. I mean, if I were a juror, I would -- I would say it's relatively directly related if it relates to that particular compound which is ultimately submitted, and not relatively directly related if it was preliminary, trying to found out which compound to submit.
03-1237 +++$+++ 2492 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would -- we would look at it this way. If I'm -- say I have 12 compounds that I'm going to test and decide which is best and go forward with. At the time I'm doing a test on any one of those compounds, if those tests succeed, it's reasonably foreseeable I'll submit an IND for that compound.
03-1237 +++$+++ 2493 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, I understand all that. But --
03-1237 +++$+++ 2494 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the --
03-1237 +++$+++ 2495 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I'm just saying that that is certainly one interpretation of "reasonably directly." And if that is so, then you are erroneous in your assumption that the question before this Court is the meaning of the statute. It might not be. It might be -- it might be the meaning of the instruction.
03-1237 +++$+++ 2496 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think we would disagree with that, for two reasons. The first is that the Federal Circuit, as Justice O'Connor noted, reserved -- resolved these questions entirely as a matter of law, based on a de novo interpretation of the statute, without regard to the jury instruction. And that's the holding that's now before this Court.
03-1237 +++$+++ 2497 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's your position on the jury instruction? Does it correctly state the law?
03-1237 +++$+++ 2498 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We think that it's -- if it's construed correctly, we think that it's correct, but just too general to be of assistance to the courts in addressing the more specific questions of the issue here. And this is -- remember, Merck has sought judgment as a matter of law. And when a party seeks judgment as a matter of law, the courts are not constrained to only applying the law that's found in the jury instruction; they can also articulate and apply -- and do all the time -- other legal principles that are relevant. Praprotnik v. St. Louis is a great example of a case where this Court did that. Now, there would be a problem if the jury instruction was inconsistent with the correct rule of law, because then there could be a waiver concern. But we don't see that at issue here, because the jury instruction, we think, was just too general to speak to these issues. But getting back to my point about why it can't be limited to that single compound --
03-1237 +++$+++ 2499 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But who's fault is that that the jury instruction is too general. I mean, if both parties agreed to it, aren't they, in a sense, bound by it?
03-1237 +++$+++ 2500 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We think that the Petitioner should not, and is not, arguing inconsistently with the jury instruction. The point is just that juries, being lay people, tend to be instructed --
03-1237 +++$+++ 2501 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The Petitioner said he agreed with the core of the instruction, whatever that is.
03-1237 +++$+++ 2502 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's just with the general principles. Take, for example, a negligence case. Jurors are instructed all the time that the Defendant has a duty of ordinary care. And then courts, on appeal, will determine more specific legal questions, whether entire classes of conduct do or do not comply with the ordinary care, in much greater detailed instructions to the jury. And example of a case where this Court did that would be Shenker v. B&O Railroad, at 374 U.S. 1. And we think that in a -- in determining whether a Petitioner is entitled to judgment as a matter of law, this Court should just articulate and apply the specific legal principles here; they're not inconsistent with the jury --
03-1237 +++$+++ 2503 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was the court below wrong in saying that the statute was enacted only to help generic-drug development?
03-1237 +++$+++ 2504 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. In fact, this Court already held in Eli Lilly v. Medtronic that the statute is not limited to generic drugs. In fact, it's not even limited to drugs, but also applies to things like medical devices, food additives, color additives. And it's a very important point, because the Federal Circuit thought the statute to be construed in an artificially narrow manner in light of a supposed focus on generic drugs, which is just inconsistent with this Court's authoritative construction of the statute.
03-1237 +++$+++ 2505 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that going to be your third point, the third error that the court supposedly committed?
03-1237 +++$+++ 2506 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, the third is the error committed by the District Court and relied on by Respondents here, which is the statement that FDA only considers safety, and not efficacy, in determining whether to permit human clinical trials to proceed. It's a very important point, because at the IND stage the question for FDA is whether a drug should be given to human beings. And because there's no such thing as an absolutely safe drug, because all drugs entail at least some safety risks, FDA will not let human clinical trials proceed unless there's some reason to believe that the study could be useful. It's a -- it's a benefit-risk analysis. The Court looks to whether the potential benefits of the test would outweigh the risks of the test; and if not, the Court will not let a test proceed. Now, Congress charged FDA with doing that by instructing FDA to determine whether the drug would pose an unreasonable risk to the health and safety of humans. And FDA has construed that, as I said, to mean the benefit-risk. The most express articulation of that comes in the guidance document that FDA has put out regarding the preparation of the investigators brochure, which is a required part of the 9d submission. And the investigators -- and the guidance document explains that the investigators brochure must provide sufficient information for the -- for the reader to, quote, "make his/her own unbiased risk-benefit assessment of the proposed clinical." That's set forth on the bottom of page 10 of our brief. And --
03-1237 +++$+++ 2507 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What are the consequences if someone goes ahead and conducts a clinical trial without the approval of the FDA?
03-1237 +++$+++ 2508 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's contrary to federal law. I -- certainly would be severe civil consequences. And my guess is there are criminal consequences for doing that, too.
03-1237 +++$+++ 2509 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Your time is short, so could you tell us how far back you think, under the statute, you can go and not -- and be within the safe harbor?
03-1237 +++$+++ 2510 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. We think that the proper test looks to whether a company is trying to develop a particular drug, by which we mean a substance with particular characteristics designed to achieve particular objectives. To explain that, we recognize that basic scientific research into human biology and disease processes is not protected. That's just too far down the stream of causation. But once I get a particular concept for a drug, this says I'm going to treat the disease in a particular way by targeting a particular part of the disease process. Then we think that the work done, going forward, with includes comparing different substances to figure out which would be the best active ingredient, is protected. To provide a concrete example --
03-1237 +++$+++ 2511 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why isn't that basic research? I mean, I want to -- I want to treat this disease by stifling the development of blood cells around it, or something like that, and then you ask yourself, "Gee, what would stifle the production of blood cells?" And let's assume there hasn't been any research done in that field before. You wouldn't consider that basic research, so long as the idea I have in my -- in my head is, I want to create a drug to treat this disease that will stifle blood cells?
03-1237 +++$+++ 2512 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. And here's why. The basic insight, and then I'll explain it, is that the first time a study -- a study is run on a particular substance, if that's -- first study is not protected, then the exemption is worthless, because I'd have to commit that infringing study before I gained the protection of the exemption. So, we would say that the -- in this case, for example -- I think it's easier on particulars -- the basic research was figuring out that the key to cancer is -- the key to the growth of tumors is angiogenesis, and the key to blocking angiogenesis is blocking the alpha v beta 3 receptors. That's the basic research into how the body works. But once I then start trying to figure out which substance would best block an alpha v beta 3 receptor, it's very specific, because I know what that receptor is, I know what it's like, I know what characteristics I'm going to need in a drug to block that. And when I try different things out to block that, that first experiment, at that point, has to be protected, because, otherwise, I'd have to commit the infringement before I could get --
03-1237 +++$+++ 2513 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did the earlier process that you described, the basic research, is that within the common law research exemption?
03-1237 +++$+++ 2514 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- it would be if it was noncommercial.
03-1237 +++$+++ 2515 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How does the common law research exemption figure into this case, if at all?
03-1237 +++$+++ 2516 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's not directly before here because Petitioner has not relied on it at all, and for good reason, which is that the courts have consistently held that the common law research exception applies only to noncommercial activity. The most obvious example would be kids in their basements. But when a drug company, that its entire business is developing and manufacturing drugs, undertakes the activity, that's commercial, and that's never been considered protected by the common law exception.
03-1237 +++$+++ 2517 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does Scripps -- is Scripps in the business, too?
03-1237 +++$+++ 2518 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I see my red light is on, if I could answer the question. Some of Scripps' work, when it's working directly for Merck, certainly is, we would think, you know, tied closely to Merck's commercial activities. Scripps may also do some other bioresearch --
03-1237 +++$+++ 2519 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Joseffer. Mr. Flores.
03-1237 +++$+++ 2521 +++$+++ FALSE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: This Court stated, in Black versus Cutter Laboratories, which is cited on page 27 of our brief, as follows, "At times, the atmosphere in which an opinion is written may become so surcharged that unnecessarily broad statements are made. In such a case, it is our duty to look beyond the broad sweep of the language and determine for ourselves precisely the ground on which the judgment rests." This is such a case. The judgment of the Federal Circuit was its order affirming the District Court's denial of Merck's motion for judgment as a matter of law. The precise grounds for the Federal Circuit's opinion is set forth in page 14a in the appendix attached to Merck's petition for certiorari. And there the Federal Circuit said that it upheld the denial of Merck's motion for judgment as a matter of law because the Federal Circuit discerned no error in the District Court's interpretation of section 271(e)(1), which raises the question --
03-1237 +++$+++ 2522 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where is this? Page 14a --
03-1237 +++$+++ 2523 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your --
03-1237 +++$+++ 2524 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What are you quoting from?
03-1237 +++$+++ 2525 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it just before the letter "b" on 14a?
03-1237 +++$+++ 2526 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-1237 +++$+++ 2527 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What are the first few words of the sentence there that you quoted?
03-1237 +++$+++ 2528 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ "Because the language and context of the safe harbor do not embrace the Scripps-Merck general biomedical experimentation, this Court discerns no error" --
03-1237 +++$+++ 2529 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Exactly. And so, they are saying that they're wrong on their ground for thinking that the language and context don't embrace it. Since they used the wrong standard, they never got to the question of whether the evidence warranted a directed verdict. So I don't see how we avoid looking at all of what you'd call the atmospherics.
03-1237 +++$+++ 2530 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The precise holding and the reasoning of the Federal Circuit was, they found no error in what the District Court's --
03-1237 +++$+++ 2531 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because they interpreted the statute in a particular way. Isn't that right? I'm asking. I'm not --
03-1237 +++$+++ 2532 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
03-1237 +++$+++ 2533 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No?
03-1237 +++$+++ 2534 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The only interpretation of the statute that can be found in the District Court's order denying Merck's motion for judgment as a matter of law is the standard articulated in the jury instruction.
03-1237 +++$+++ 2535 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but I think -- I think the Justice was asking whether it was the Court of Appeals that --
03-1237 +++$+++ 2536 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
03-1237 +++$+++ 2537 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- applied a particular standard. And certainly it had to have been. Didn't the Court of Appeals have a particular standard as to what constituted general biomedical experimentation, as opposed to the kind of experimentation that's covered by the -- by the safe harbor exemption? It must have had. I mean, how could you -- how could you rule on the question before you unless you have, in your head, a notion of what the safe harbor consists of and what is beyond it?
03-1237 +++$+++ 2538 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The question before the Federal Circuit was whether the District Court erred by not applying the rational predicate interpretation of section 271(e), which was the sole focus of Merck's appeal to the Federal Circuit.
03-1237 +++$+++ 2539 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why should we say that's the question, when the Federal Circuit, itself, said what I read before from 10a?
03-1237 +++$+++ 2540 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, on page 10a, the Federal Circuit said, "Thus" -- and this is in the -- the last sentence in the middle paragraph of the page -- "Thus, this Court must determine whether section -- the section 271(e) safe harbor reaches back down the chain of experimentation to embrace development and identification of new drugs that will, in turn, be subject to FDA approval."
03-1237 +++$+++ 2541 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That would answer that question?
03-1237 +++$+++ 2542 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does not. The Federal Circuit answered that in the negative. The Federal Circuit rejected the interpretation advanced by Merck, which was the rational predicate standard, which was basically a causal test, and held that the District Court's interpretation, under the Intermedics standard that's given in the jury instruction, that Merck now concedes is the correct standard.
03-1237 +++$+++ 2543 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So they say that it does not -- the safe harbor does not reach, among other things, back down the chain of experimentation to embrace the development of new drugs that will be subject to FDA approval. In your opinion, is that statement, as I read it -- I left out the word "identification" -- as I read it, is that statement a correct statement of the law, or incorrect statement?
03-1237 +++$+++ 2544 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is a correct statement of the law.
03-1237 +++$+++ 2545 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That is a correct statement of the law. So then, I take it, the other thinks that it isn't, because, for example, you could have a situation where you are developing drugs, and, in developing drugs, you do some experiments and you get some information that would be useful to the FDA and the IND process, and, therefore, they are within the safe harbor.
03-1237 +++$+++ 2546 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. I believe the Solicitor General agrees with this aspect of the Federal Circuit's opinion and makes that clear at the bottom of page 15 and onto page 16 of the Solicitor General's brief. Merck no longer challenges this aspect of the Federal Circuit's opinion. Merck concedes that there are experiments in the basic research phase, that, although they're necessary in the chain of causation, are not exempt. The rational -- Merck has abandoned the rational predicate standard that the Federal Circuit rejected here.
03-1237 +++$+++ 2547 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Flores, when I asked you about the sentence on page 10, I intended, not the one that you read, but an earlier one that precedes it, and that is, "The questioning arising in this case is whether the preclinical research" -- that is, the research on animals, as distinguished from humans -- "conducted under the Scripps-Merck agreement is exempt from liability for infringement of Integra's patents." Now, if you just took that as the question, then you would say it -- this Circuit is drawing the line between clinical and preclinical. It's not a crystal-clear opinion, by any means, but that is one question presented that they've identified. And how do they answer that question?
03-1237 +++$+++ 2548 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I disagree. I think the operative language in this sentence is the reference to "the Scripps-Merck" -- is to "research conducted under the Scripps-Merck agreement."
03-1237 +++$+++ 2549 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's the way I read it. It -- the -- and this is why I was disagreeing with counsel from the other side. It -- well, counsel ultimately conceded, you could read it not to draw the line between clinical and preclinical. And the way you read this sentence is -- the question, they say, is not whether preclinical research falls under 271(e)(1); it's whether the "preclinical research conducted under the Scripps- Merck agreement." And then the next sentence explains what that means. The experiments did not supply information for submission to the United States Food and Drug Administration, but, instead, identified the best drug candidate. So, I think what they're describing as the question presented is whether preclinical research that is -- that is not directed to supplying information for submission to the Food and Drug Administration, but, instead, to selecting the drug candidate, whether that type of preclinical research is within the safe harbor.
03-1237 +++$+++ 2550 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. In fact, Justice Scalia, if this opinion by the Federal Circuit were interpreted to hold that preclinical experiments are categorically excluded from the scope of the exemption, that holding would be inconsistent with the District Court's interpretation of the law, because the District Court's interpretation of the law was that preclinical experiments are potentially eligible, and the District Court submitted the question to the jury. So the Federal Circuit would be completely inconsistent, if, on the one hand, it categorically excluded preclinical experiments, and, on the other hand, it approved the District Court's reasoning.
03-1237 +++$+++ 2551 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This very dialogue makes me able to ask a question that I think will reveal better to you what I need an answer to. Reading this, and listening to the discussion, and your use of the word "atmospherics," suggests that the opinion below is pretty foggy. We have Merck, the Food and Drug Administration, the Government, the entire biotechnology industry, the drug industry of the United States, and everybody else telling us that they are wrong in the way they stated the standard. And you, yourself, urge us to look beyond the way they stated it. So, what's the harm, and why wouldn't we, given this and the unclarity, just try to do a better job at stating the standard, say, "That's the standard," and then send it back, and then you can make all your arguments there about how it applies.
03-1237 +++$+++ 2552 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The reason it would not be appropriate for the Court to do so is because no standard, other than the Intermedics standard that was applied by the District Court, was ever suggested to the District Court. There was only one standard ever considered.
03-1237 +++$+++ 2553 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We're not reviewing the District Court's opinion. We granted certiorari as to the particular question which will deal with what was the Court of Appeals opinion. We don't ordinarily simply compare the Court of Appeals' opinion with the District Court's opinion to see if they parse.
03-1237 +++$+++ 2554 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. But in this case the issue before the District Court was whether the District Court erred in denying a motion for judgment as a matter of law.
03-1237 +++$+++ 2555 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, don't you think that the Federal Circuit may have focused too much on generic drug applications? Do you think it was right about that?
03-1237 +++$+++ 2556 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the Federal Circuit was right, as a factual matter, in describing the impetus for Congress adopting section 271(e).
03-1237 +++$+++ 2557 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it seemed to be driven by its very narrow focus on generic drug development. Do you -- do you think that the efficacy of the drug being suggested plays a role in the IND application?
03-1237 +++$+++ 2558 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, it does not.
03-1237 +++$+++ 2559 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ See, I think there may be a difference there, because I think the other side thinks that how the drug is expected to work, in practice, and whether it, in fact, will attack a certain disease, is part of what the FDA looks at. Apparently, the Government takes that position, as narrowly as I could determine. But you reject that, as well.
03-1237 +++$+++ 2560 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. I think the answer to that is in the statute. It's a -- it's section -- it's 21 United States Code 355(i)(3)(B)(i). And in that --
03-1237 +++$+++ 2561 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can you repeat that 355 what?
03-1237 +++$+++ 2562 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ (i) --
03-1237 +++$+++ 2563 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- (i) --
03-1237 +++$+++ 2564 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- (3) -- -- (B)(i) again. And, in this section, Congress is telling the FDA what are the considerations that the FDA has to weigh in making the safety decision, the decision whether to allow clinical trials in humans --
03-1237 +++$+++ 2565 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is this text that you're referring to, is it someplace -- is the text someplace where we can look at it while you're explaining this to us?
03-1237 +++$+++ 2566 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, it's not in the appendix, unfortunately. Let me read that statute, because it's instructive about what Congress told FDA to weigh for the --
03-1237 +++$+++ 2567 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But does the -- does the statute -- is that the only place we would look to decide whether safety is the only consideration for the FDA?
03-1237 +++$+++ 2568 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. The regulations, I believe, address that. And the regulations are 312.22(a), which is in the appendix attached to Integra's brief on the merits. And I'll read that. It says --
03-1237 +++$+++ 2569 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you do --
03-1237 +++$+++ 2570 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What are you --
03-1237 +++$+++ 2571 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you do agree, do you not, that the Government does not agree with you on this point?
03-1237 +++$+++ 2572 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Government disagrees, Your Honor.
03-1237 +++$+++ 2573 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
03-1237 +++$+++ 2574 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What are you reading from?
03-1237 +++$+++ 2575 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Page 3a in the addendum to Integra's brief.
03-1237 +++$+++ 2576 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
03-1237 +++$+++ 2577 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's 21 C.F.R. Section 312.22(a). It states that, "The FDA's primary objectives in reviewing an IND are, in all phases of the investigation, to assure the safety and rights of subjects, and, in phase two and three, to help assure that the quality of the scientific investigation of the drugs is adequate to permit an evaluation of the drug's effectiveness and safety."
03-1237 +++$+++ 2578 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, that talks about the primary concern. There is certainly going to be concern with efficacy to this extent. They are going to want to know, before they allow clinical trials, whether the drug that it is proposed to give cancer patients has some relationship to cancer, as opposed to the common cold. Admittedly, at the clinical trial they're trying to find out how effective it is on human beings, but there's got to be some threshold showing of effectiveness. They can't simply ignore effectiveness and look at safety entirely prior to that point.
03-1237 +++$+++ 2579 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In fact, that paragraph refers to effectiveness, as I read it.
03-1237 +++$+++ 2580 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it does, Your Honor. But it does -- it refers to it in the context of phases two and three. And the simple fact is that until there's clinical trials in humans, there's no way tell whether this drug is going to be effective.
03-1237 +++$+++ 2581 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there is at least -- there's got to be some way to tell whether it even addresses the disease. That is essentially a threshold effectiveness question.
03-1237 +++$+++ 2582 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The FDA statutes and regulations do not use the term "efficacy" to describe that. In section 355(i)(3)(B)(i), when Congress listed the factors to consider, what it listed was not efficacy. Efficacy is not to be found where its listed --
03-1237 +++$+++ 2583 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Congress described the need that there be some relationship between the consequences of taking the given drug and the disease which is supposed to be addressed by taking the drug. If they didn't use the word "efficacy," what word did they use?
03-1237 +++$+++ 2584 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They --
03-1237 +++$+++ 2585 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They used the word "effectiveness," which is pretty close. [Laughter.]
03-1237 +++$+++ 2586 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, they used the word, in the statute, "the condition for which the drug is to be investigated."
03-1237 +++$+++ 2587 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's important. They say they want to know the pharmacological action of the drug in relation to its proposed therapeutic indication. The reason, I take it, the word "efficacy" is not there directly is because that word has a history, the Kefauver hearings, and it was involving drugs that don't do anything. Safety is a different matter. But of course when you consider whether something is safe, you must know, since, for example, cancer drugs poison people, the extent to which that poisoning is outbalanced by its effect in curing people. So how could you possibly, particularly where cancer is at issue, know whether this is an appropriately safe drug, without knowing how effective it is, as well as knowing the side effects that are -- that are harmful? If I knew that there was any answer to that question at all, I might be tempted to agree with you, because it doesn't use the word. But what's the answer?
03-1237 +++$+++ 2588 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The answer is that the FDA considers what information is available to it. It does not have information about the effectiveness of the drug, because clinical trials have not taken place; and, therefore, the regulations and the statutes say you do the -- what you can. You look at the condition for which the drug --
03-1237 +++$+++ 2589 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But why wouldn't it have information about effectiveness on animals? I mean, if the -- you show that the -- all the FDA's interested in is that it didn't kill the animal, never mind whether it was effective to cure the tumor?
03-1237 +++$+++ 2590 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The FDA is concerned with safety in animals. And there may be some cases in which there is a known safety risk to a drug, and there will be a heightened look at potential benefits in order to balance that out. But the regulations focus on safety. And in this particular case --
03-1237 +++$+++ 2591 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but it's absolutely clear, I thought, that the FDA, at the end of the day in some of these drug applications, ends up looking at not only safety, but how effective it is. And sometimes if the safety risk is minimal but the effectiveness is great, I understood at least, that could affect the decisions. So, I would think that you would want to encourage the exemption to cover those matters.
03-1237 +++$+++ 2592 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, of course FDA is very concerned about efficacy, and it -- but concerned about that after it gets data from human clinical trials. That's the -- that is the basis of --
03-1237 +++$+++ 2593 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I'm not sure. If there's data earlier, at the IND stage, as a result of the lab tests and the animal tests, I would think that would be part of the exemption.
03-1237 +++$+++ 2594 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If efficacy -- or some information about what benefits the drug might have, is probably a better way to phrase it -- is considered at the safety stage as part of the safety balancing, then it's got to be done under good laboratory practices, because --
03-1237 +++$+++ 2595 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose that we concluded -- well, I don't want to cut you off. Go ahead, please. If I cut you off.
03-1237 +++$+++ 2596 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. If -- I believe the Solicitor General's point is that the safety decision is a practical one, and you've got to look at both sides of the ledger -- potential harm, potential benefit -- I don't believe it's proper to call that "efficacy." But whatever you call it, if it's part of the safety balancing it has to be done under good laboratory procedures. That, I think, is clear from the FDA regulations. And, as a matter of policy, it wouldn't make any sense for the FDA to say that half of the safety equation need not be done under good laboratory practices. Both parts of the safety equation have to be done under that.
03-1237 +++$+++ 2597 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't -- so what? I don't understand what conclusion that leads to.
03-1237 +++$+++ 2598 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia, let me say that I think that this whole discussion about the interpretation of the FDA law is really somewhat off the point here.
03-1237 +++$+++ 2599 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I was beginning to think that, too. [Laughter.]
03-1237 +++$+++ 2600 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the reason I say that is because we're not here to judge the legality of an FDA action in its discretion, saying we want to consider preclinical --
03-1237 +++$+++ 2601 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but the reason you brought it up is because the particular certificate that is for a safety-certified lab is not applicable to the lab that used this stuff. That's why you brought it up, I think.
03-1237 +++$+++ 2602 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
03-1237 +++$+++ 2603 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I understand that. And you'd have to conclude, for them to win -- but suppose I did conclude -- suppose, for hypothetical -- the sake of -- for -- as a hypothetical, suppose I thought, yes, this does include the safety part, looking at how effective drugs are, too. Suppose I concluded that the statute meant sometimes you could do that, in an ordinary laboratory that didn't have the special certificate? Suppose I concluded that, indeed, you could look well in advance of the clinical test period to get the information for the IND? And suppose I concluded that sometimes, where it was reasonably related, you could, in fact, look at other drugs, too, that are related to the ones you do. If I concluded that -- and I'm not saying I would -- then would you concede that a directed verdict would have been appropriate against you?
03-1237 +++$+++ 2604 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
03-1237 +++$+++ 2605 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because? And what's your strongest argument that it wouldn't?
03-1237 +++$+++ 2606 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, there's numerous admissions in the record that Merck made which would indicate that they've -- that the program carried out at Scripps was not reasonably related to the FDA, that the real FDA work was being done in Germany, that the majority of these experiments conducted by Scripps were conducted on chicken embryos, which Merck's own scientists agree have nothing to do with safety, and, by logical extension, they can't tell you much about efficacy, either. Merck agreed that a significant portion of these experiments in which Merck was looking for non-peptide compounds as possible drug candidates, is something that --
03-1237 +++$+++ 2607 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, we don't -- I hope we don't have to, at this Court, look at all the evidence and try to sort it out that way. What we have to focus on is whether the Court of Appeals for the Federal Circuit was in error in articulating the scope of the exemption.
03-1237 +++$+++ 2608 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, this Court does not have to get into Rule 50 review of the evidence here --
03-1237 +++$+++ 2609 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No.
03-1237 +++$+++ 2610 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- because there's no dispute about the legal standard. We've all heard that this morning. The only other possible issue is Rule 50 review. But Merck has failed --
03-1237 +++$+++ 2611 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I thought the issue was whether the Court of Appeals for the Federal Circuit correctly determined the scope of the exemption. If they were wrong about it, then it is open to us to correct that and send it back.
03-1237 +++$+++ 2612 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the Federal Circuit didn't determine the scope of the invention. There's -- it's --
03-1237 +++$+++ 2613 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Exemption. The statutory exemption. I thought that was what we were looking at.
03-1237 +++$+++ 2614 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that's what I was referring to. The Federal Circuit didn't articulate a standard for that. The Federal Circuit approved the District Court's use of the Intermedics standard, under which preclinical experiments are potentially --
03-1237 +++$+++ 2615 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but it certainly thought that the FDA considers only safety, and nothing else, that it was directed at generic drugs, not others, and that there was a cutoff point earlier than that argued by the Government and the Petitioner for what is exempt preclinical trial information.
03-1237 +++$+++ 2616 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Federal Circuit's opinion, I believe -- the Federal Circuit's opinion rejects the rational predicate theory. It does not articulate an alternative standard to that. It merely --
03-1237 +++$+++ 2617 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They spent about ten pages in the appendix trying to do that.
03-1237 +++$+++ 2618 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But Federal Circuit didn't do that. That was discussion in there. It gave a lot of background about the statute, which may not have been necessary for its ultimate holding. But the Federal Circuit, when it comes down to it, didn't do anything other than approve the District Court's interpretation. Now, if the Federal Circuit did something different than that, which we just -- which is -- Integra does not believe is the case, its judgment should be upheld on the grounds articulated, that it could discern no error in the District Court's judgment -- in the District Court's denial of Merck's motion for judgment as a matter of law. To respond to one of Justice O'Connor's earlier questions, "Does this Court have to get into a Rule 50 review," the answer is no, because Merck failed to preserve its right to Rule 50 review. In the District Court, in the Federal Circuit, the -- Merck argued the rational predicate standard as a matter of law. That was rejected. Rule 50 review, under the Intermedics standard, is an entirely different argument, and Merck never raised that argument in -- before the Federal Circuit. In its brief, Merck relies, on pages 50 and 51 of its brief to the Federal Circuit, saying there it argued substantial evidence. But what it argued there was, the experiments are rational predicates. Merck never argued, before the Federal Circuit, that the verdict can't be sustained under Rule 50, under the Intermedics standard, as opposed to the rational predicate standard, so it's not entitled to that review here.
03-1237 +++$+++ 2619 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The dissenting judge did not -- the dissenting judge, Judge Newman, did not read the Court's opinion the way you do. Is that correct?
03-1237 +++$+++ 2620 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Your Honor.
03-1237 +++$+++ 2621 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Maybe we should take that into account, to some extent, that someone who participated on the bench had a different take on what her colleagues were saying?
03-1237 +++$+++ 2622 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is certainly a consideration, but we disagree with Judge Newman on that point.
03-1237 +++$+++ 2623 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is there a difference between you and Merck concerning the scope and extent of the common law research exemption? And if there is, does that even enter into our case?
03-1237 +++$+++ 2624 +++$+++ TRUE +++$+++ MR. FLORES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That issue hasn't entered into the case, so there's been no differences articulated, Your Honor. And to get back to the point that Merck did not preserve its right to Rule 50 review under the Intermedics standard, even if it had raised that issue before the Federal Circuit, clearly the Federal Circuit didn't reach that issue. And if the Federal Circuit didn't reach an issue that was properly presented before it, that was error, and Merck would have had to seek relief from that error. And it did not do so in its petition for certiorari. So, I do not believe this Court even needs to address the issue of Rule 50 review. There is no dispute in this case as to the substantive standard that governs the scope of Section 271(e)(1), and Merck, having failed to preserve its rights to Rule 50 review under the Intermedics standard, there his no controversy for this Court to decide. If the Court does reach the issue of Rule 50 review under Intermedics, it is -- the case should be decided under the basic principles that it is the exclusive province of the jury to weigh the evidence and to determine the credibility of the witnesses. And my time is up, but -- almost -- but I'll say one thing. After 25 days of trial, the District Judge, in his denial of Merck's motion for judgment as a matter of law, expressly said that the jury had reasonable cause to disregard the testimony of Merck's main witness, Dr. Cheresh. And, on that ground alone, the judgment of the Federal Circuit should be sustained. Merck can't be rescued from the jury's verdict unless this Court determines, as a matter of law, that the jury was required to believe the testimony of Dr. Cheresh. And Merck can't show that, and hasn't even attempted to show that. Unless there are any questions --
03-1237 +++$+++ 2625 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Flores. Mr. Rosenkranz, you have two minutes remaining.
03-1237 +++$+++ 2627 +++$+++ FALSE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. With my two minutes, I want to make one overarching important point, and it's really in response to a question Justice Scalia asked. The emphasis in the statute is about the use, so let's get past labels about, Is this drug discovery or basic research, or is it, as Merck says, optimization on the lead drug candidate, and look at exactly what was occurring here. Here, this was not a, "Gee, we'd like to see what affects angiogenesis." Merck knew what affected angiogenesis. It had a structure. And if you look at page 42 of the supplemental appendix, you will see that structure. It knew exactly what that structure did and how it did it. It then tweaked it by changing, literally, three atoms to compare that activity with other activity, exactly the sorts of research that any drug innovator would do to verify that they have the best and most effective candidate. Then, with -- and with every single one of its experiments, it was examining information that was relevant to mechanism of action, pharmacology, pharmacokinetics, and efficacy. With 10 percent of the experiments, it was also running them in parallel with a series of analogs that were designed to look exactly like the RGD peptides, and to work exactly like the RGD peptides. And no rational drug innovator ever proceeds to clinical trials, nor does the FDA want it to, without conducting that research, because you don't spend millions of dollars for expensive toxicology studies until you know you've got the safest and most effective drug candidate. The FDA reviews that evidence, because it wants to know why you're proceeding with that candidate. And if you shift midstream to another lead, as Merck, in fact, did in this very case, the FDA wants to understand why. So each of those experiments, even in comparison, developed information that is relevant to the FDA. Thank you, Your Honors.
03-1237 +++$+++ 2628 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Rosenkranz. The case is submitted.
03-1238 +++$+++ 2633 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ The Court will now hear argument in IBP, Inc. vs. Alvarez and Tum vs. Barber Foods, Inc. Mr. Phillips.
03-1238 +++$+++ 2635 +++$+++ FALSE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: There are two issues in this case. One concerns walking time, and the other concerns waiting time. And unless the Court has a different order, I'd propose to start with the walking time. Section 4(a)(1)'s language, which comes from the Portal-to-Portal Act, which was enacted in 1947, by its plain terms clearly covers the walking that's involved in these two cases. The statute, which is reproduced at the appendix of the petition, at 88(a), says that there is no mandatory compensation for, quote, "walking to and from the actual place of performance of the principal activity or activities which such employee is employed to perform." It's difficult for me to imagine language that could more directly cover what we're dealing with in this particular case, because the Plaintiffs here are -- for IBP -- are employed to slaughter and to process beef. The employees at Barber Foods are employed to process chicken. And thus, the actual place where they perform those services are obviously on the lines where the processing takes place.
03-1238 +++$+++ 2636 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I would have thought that, but we've held otherwise.
03-1238 +++$+++ 2637 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't know that we've -- I don't know of any case where this Court has held otherwise.
03-1238 +++$+++ 2638 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, we've held that they're -- that the principal activity consists of doffing -- donning and doffing the clothes required, haven't we?
03-1238 +++$+++ 2639 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this Court said that donning and doffing was a principal activity in contradistinction to a preliminary or postliminary activity for purposes of section 4(a)(2), but the Court specifically said, in Steiner, that that holding does not apply to matters that are specifically excluded under section 4(a)(1), which deals with walking time, Justice Scalia.
03-1238 +++$+++ 2640 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, you think Steiner is irrelevant?
03-1238 +++$+++ 2641 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For -- no, I don't think it's irrelevant to the workplace. I think it is irrelevant to the proper disposition of this case, yes.
03-1238 +++$+++ 2642 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it is if we don't accept the continuous workday rule. If we do accept the continuous workday rule, why isn't it, in effect, the premise from which the conclusion for the other side falls?
03-1238 +++$+++ 2643 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we don't have any quarrel with the continuous workday rule. The question is, When does the workday begin? And our assessment of the workday, as defined in section 4(a)(1), which controls, specifically, the walking time in this particular case, begins when you arrive at the actual place where you're going to perform the services --
03-1238 +++$+++ 2644 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but your argument --
03-1238 +++$+++ 2645 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- or primary activities.
03-1238 +++$+++ 2646 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- assumes that there is only one actual place. And their argument, which is consistent with the text of the statute, is that there may be more than one principal activity, and hence, more than one place. And if the -- if the place of donning and doffing is such a place, then wouldn't it be at least administratively odd to apply the continuous workday rule immediately to exclude some walking time that follows that?
03-1238 +++$+++ 2647 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't think so. I think it is perfectly sensible and a clear bright-line rule, Justice Souter, to say that when you arrive at the actual place where you perform, not just any activities, and not just the activities that are integral and indispensable to your working activities, but to the principal activities for which you're hired -- and, admittedly, there can be more than one of those, but that doesn't -- you know, donning and doffing is not a principal activity --
03-1238 +++$+++ 2648 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, you're saying that --
03-1238 +++$+++ 2649 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of anyone who's cutting beef.
03-1238 +++$+++ 2650 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- so-called "integral activities" are not principal activities.
03-1238 +++$+++ 2651 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. They don't have to principal activities. They're better understood as --
03-1238 +++$+++ 2652 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They felt otherwise.
03-1238 +++$+++ 2653 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Phillips, I -- the Steiner opinion explicitly agreed with the lower court in that case, which said that the term "principal activity or activities" embraces all activities that are integral and indispensable.
03-1238 +++$+++ 2654 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
03-1238 +++$+++ 2655 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And if -- if you think that putting on the clothes fall within that, then that covers walking, too --
03-1238 +++$+++ 2656 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It --
03-1238 +++$+++ 2657 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- after that.
03-1238 +++$+++ 2658 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The problem with that analysis is that the court was only analyzing section 4(a)(2) for these purposes. And what it was saying is, "We are prepared to accept that there are certain activities that are either preliminary or postliminary, and then there are others that are primary activities. And if you are integral and indispensable to a primary activity, it is a compensable event." Recognizing that Steiner is probably the most extraordinarily extreme facts that you could imagine, because we're talking about clothings that had -- clothing that had to be changed in order to protect the public --
03-1238 +++$+++ 2659 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, Mr. Phillips --
03-1238 +++$+++ 2660 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- health and safety.
03-1238 +++$+++ 2661 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- you're asking us to interpret the same words, "principal activity or activities," differently in sub (2) that was at issue in Steiner, and in sub (1), and then the clause that follows both of those. The same phrase is used. So if "principal activity" includes donning or doffing, under sub (2), why wouldn't the same follow for sub (1) and the following clauses?
03-1238 +++$+++ 2662 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because you have to read the language "principal activity or activities" in (a)(1) within the context of what Congress was trying to achieve by the Portal-to-Portal Act, which was to absolutely and categorically exclude walking time from being part of mandatorily compensated activities of a particular employee.
03-1238 +++$+++ 2663 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it is included if it's -- once the workday begins, if there's a rotation, you walk from one station to the other. That walking time, I think it's conceded, would be included.
03-1238 +++$+++ 2664 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. But that --
03-1238 +++$+++ 2665 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, if your date -- if the principal activity is donning and doffing, then the walking time thereafter would also be included.
03-1238 +++$+++ 2666 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Justice Ginsburg, if you step back and think about this language in the context of the words that are written here, it says, "walking to and from the actual place of performance of the principal activity." No one would think that that --
03-1238 +++$+++ 2667 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ "Or activities."
03-1238 +++$+++ 2668 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Or activities. But, again, Justice Souter, all that suggests is that there are times when somebody who's working in a clothing operation may -- you know, may spend time distributing the cloth or may spend time actually sewing the cloth. Those are two separate activities. They're different activities. But it doesn't mean -- and it certainly doesn't convert anything that had -- can be described as "integral and indispensable" into a primary activity which such employee is employed to perform. No employee, in these cases, was employed to perform the act of putting on clothes or the act of picking up equipment.
03-1238 +++$+++ 2669 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What do you think about the possibility, "it depends on the clothes and depends on the equipment," so that, in Steiner and here, it's a lot of protective gear, it's really quite part of the job and special and unusual. In Mt. Clemens, it's a kind of uniform. It's just washing your hands up, putting on an apron. So, where it's minor putting on clothes, as someone might in his house, doesn't come in substantial, doesn't come in integral and indispensable; but where it's quite a big deal, it does. And who decides? The agency.
03-1238 +++$+++ 2670 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there are two parts about that that are worth focusing on. One is, I don't think you can lump the two cases together, because the clothing or the equipment that has to be put on with respect to the Barber Foods company is barely -- is quite minimal and, indeed, was deemed to be diminimus. So, I'm not -- I'm not sure you can lump the two cases together in that way. But also, in terms of where the Secretary comes out on this, let's not forget 79.7(g), footnote 49, which is, candidly, the clearest statement from the Secretary with respect to, What do you do when you have donning and doffing that is followed by walking time? And what does the -- and what does the regulation specifically say? And that's on, I think, 92 and 93 of the appendix to our petition. It specifically says that that walking time is not excluded, not necessarily --
03-1238 +++$+++ 2671 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not necessarily excluded. It's really noncommittal on the point.
03-1238 +++$+++ 2672 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, except that, under their theory of this case, it is always excluded. Always. So that whatever else you can say about the meaning of that particular language, the interpretation the Secretary offers to you today flatly rejects --
03-1238 +++$+++ 2673 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But "in certain" --
03-1238 +++$+++ 2674 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that language.
03-1238 +++$+++ 2675 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that footnote -- that's where I actually got the idea -- it says, "We reserve, in certain situations." To me, that meant sometimes it can be a major big deal to don clothing -- protective gear; sometimes it isn't -- an apron. And whose job is it? Now I'm repeating myself.
03-1238 +++$+++ 2676 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
03-1238 +++$+++ 2677 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The Secretary's.
03-1238 +++$+++ 2678 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, but -- and if we were talking about that in the context of other kinds of activities -- if you're back in the (a)(2) world of looking at whether something's preliminary or postliminary, I have less of a problem with dealing with that. The problem is, here we're talking about (a)(1) activities, the core of what Congress enacted the Portal-to-Portal Act to protect employers for. The Portal-to-Portal Act is not a statute that remotely provides protections for the employees. This is a statute that was designed to protect employers from billions of dollars of liability. And so, when you're talking about, "Under what circumstances can you ignore the flat prohibition on requiring walking time to be regarded as a mandatory subject of compensation?" then it seems to me the distinction you're proposing doesn't work. And it's also, Justice Breyer, again, flatly inconsistent. Their -- that's not their theory of the case. Their theory of the case is, "If we can describe it as in any way integral and indispensable to some other activity, that makes it a primary activity, that starts the workday, and everything after that then becomes compensable."
03-1238 +++$+++ 2679 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Phillips, can I call your attention to the text of Section 254(a)? It's in the red brief in the Alvarez case, at App. 1. What it -- what it says is that you don't have to pay overtime compensation or minimum wages for and on account of any of the following activities: (1) "walking, riding," blah, blah, blah. This is (1).
03-1238 +++$+++ 2680 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-1238 +++$+++ 2681 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- for the "place of performance of the principal activity or activities which such employee is employed to perform."
03-1238 +++$+++ 2682 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Now you skipped over "actual place," there --
03-1238 +++$+++ 2683 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right. Okay.
03-1238 +++$+++ 2684 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Justice Scalia, but -- which I think is an important --
03-1238 +++$+++ 2685 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
03-1238 +++$+++ 2686 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- word.
03-1238 +++$+++ 2687 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ (2) "activities which are preliminary to or postliminary to said principal activity or activities." You're trying to sever (1) and (2), when the text itself joins them. The activities referred to in (2) are "said principal activity or activities." The "said" refers to the ones that are in (1).
03-1238 +++$+++ 2688 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. But that --
03-1238 +++$+++ 2689 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How can we possibly sever (1) and (2) and say that for purposes of one, it means one thing; for purposes of two, it means something else?
03-1238 +++$+++ 2690 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because when the court was interpreting (a)(2) in Steiner, it wasn't interpreting (a)(2) to determine whether something was a postliminary activity in connection with "said preliminary -- primary activities." What it was saying is, these are not preliminary and postliminary activities, that they are excluded from that. And so, the court's really coming up with what is a third category of cases, which deals with integral and indispensable activities to a primary activity. They didn't have to analyze it as a primary activity. All they had to say was, it's not -- that the preliminary and postliminary activities are not simply temporal, that there is a substantive component to it. And that is essentially the holding of the court in Steiner. It says there's a substantive component; and, therefore, we're not going to just simply look in -- time-wise, whether it comes before or after principal activities. We're going to decide that there are some -- there are some situations that are so important that they need to be compensated under (a)(2), because they don't fall within preliminary or postliminary language.
03-1238 +++$+++ 2691 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, Mr. Phillips, it says it -- either something is before, preliminary; or after, postliminary. And if it's neither of those, then, it seems to me, it fits -- it's not before the principal activity, and it's not after the principal activity, so what else is it, other than the --
03-1238 +++$+++ 2692 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's work --
03-1238 +++$+++ 2693 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- principal activity?
03-1238 +++$+++ 2694 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's mandatorily compensable under the Fair Labor Standards Act. Remember, the Fair Labor Standards Act, under this Court's interpretations from Mt. Clemens Pottery and the cases that preceded it, I mean, it -- you know, it had a very sweeping definition of what is work within the meaning -- within the meaning of what is compensable as minimum wages and as overtime. And that's in place. And now Congress has stepped in and said, "Well, wait a second. When we did it -- when that got interpreted that broadly, we're talking about $6 billion in liability." So, it's very important, given that we're talking about fairly minimal activities on the -- on the -- that are involved here, triggering potentially massive liabilities. And so, what we've done is, we've excluded from those massive liabilities the walking, riding, and traveling time, because that's the basis on which you end up with big numbers.
03-1238 +++$+++ 2695 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, your approach introduces, really, a third concept. You have the principal activities and you have -- either preliminary or postliminary -- and now you've got a third concept: integral. But the statute -- that's nowhere in the statute.
03-1238 +++$+++ 2696 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Well, I mean, that -- but that's -- this Court's decision in Steiner was the one that reached out to decide that "integral and indispensable" was a category of activities that were going to be compensable, even though, on the face of them, they may have appeared to be --
03-1238 +++$+++ 2697 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, unless they were saying those activities were, in fact, principal activities. If it's integral, if it's embraced by the principal activity, it is a principal activity, and that at least is more consistent with the statute in keeping it in two categories rather than inventing a third.
03-1238 +++$+++ 2698 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think that creates any particular problem, but what you end up doing, Mr. Chief Justice, under those circumstances, is, you completely eliminate the protection that Congress meant to provide here for walking, riding, and traveling time, which is -- which is a vital consideration --
03-1238 +++$+++ 2699 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, how does -- how does your analysis apply? Let's say these employees had to change their equipment several times during the course of the day.
03-1238 +++$+++ 2700 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You mean after they've --
03-1238 +++$+++ 2701 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, I mean, the --
03-1238 +++$+++ 2702 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- arrived at the actual place --
03-1238 +++$+++ 2703 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the equipment is only good for, you know, an hour, two hours, then they have to get new ones. They have to walk back to the place --
03-1238 +++$+++ 2704 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
03-1238 +++$+++ 2705 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- they have to doff the other equipment, don new equipment, and walk back. Wouldn't your analysis say that that walking time is excluded?
03-1238 +++$+++ 2706 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. No. Once you --
03-1238 +++$+++ 2707 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why not?
03-1238 +++$+++ 2708 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't have any quarrel with the argument that once you, for the first time, arrive at your actual place of performing the principal activity for which you were hired, which is cutting beef or whatever it happens to be in your hypothetical -- once you arrive there, that does begin the workday. That's the definition of what starts the workday, which is why I -- to our mind, this is a much clearer and brighter-line rule. We can tell you precisely when you start the workday. It's when you get to the place where you got hired to work, and start to do that work.
03-1238 +++$+++ 2709 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But do you have compensated activities that do not begin the workday?
03-1238 +++$+++ 2710 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, you do have compensated -- and that's true for lots of different situations, Justice Kennedy. You could have a situation where you go home, and you get called back in on an emergency, and nobody disputes that that's clearly compensable time, and nobody has ever seriously argued that you ought to extend the workday --
03-1238 +++$+++ 2711 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What happens with the microchip or a laboratory with highly contagious viruses where there's got to be two hours of scrubbing and then there's a walk? What do you do with that?
03-1238 +++$+++ 2712 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the --
03-1238 +++$+++ 2713 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Two hours of scrubbing --
03-1238 +++$+++ 2714 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You know, it's -- it's very possible that the scrubbing will be regarded as an integral and indispensable part of the -- of the -- of the employment, and --
03-1238 +++$+++ 2715 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But then there's -- but then there's --
03-1238 +++$+++ 2716 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- therefore, it's compensable.
03-1238 +++$+++ 2717 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- but then there's a walk. What about the walk?
03-1238 +++$+++ 2718 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The walk is not compensable, because Congress didn't want you to have walking until you got to the actual place where you would perform the services. And nobody's principal activity as an employee is to go take a shower or to go and pick up certain types of clothing. That's not --
03-1238 +++$+++ 2719 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the problem --
03-1238 +++$+++ 2720 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the understanding of "principal activity."
03-1238 +++$+++ 2721 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Phillips, the problem I continue to have is that I thought Steiner embraced, explicitly, the notion that principal activity embraces all activities that are integral and indispensable. You take issue with that, but do you want us to overrule Steiner --
03-1238 +++$+++ 2722 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
03-1238 +++$+++ 2723 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- or make some changes in it? I just don't understand.
03-1238 +++$+++ 2724 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I want you to limit Steiner to the very unusual facts that arose in that particular context. I -- we don't have any quarrel with the "indispensable and integral" test as a reason for beginning -- as a reason for compensating certain activities.
03-1238 +++$+++ 2725 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What was --
03-1238 +++$+++ 2726 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What we do --
03-1238 +++$+++ 2727 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- so unusual about the facts --
03-1238 +++$+++ 2728 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry?
03-1238 +++$+++ 2729 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What was so unusual about the facts in Steiner? They're pretty common.
03-1238 +++$+++ 2730 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, no, I -- the notion that if you didn't shower and change, you would expose not only yourself, but your family and everybody else to the risks of lead poisoning is a pretty extraordinary --
03-1238 +++$+++ 2731 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but the --
03-1238 +++$+++ 2732 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- circumstance.
03-1238 +++$+++ 2733 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the routine where you have to don, you know, safety equipment, and you have to shower when you're done, whether it's being -- the meatpacking or the stuff at Steiner -- that's a pretty common occurrence.
03-1238 +++$+++ 2734 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, well, I would -- I would argue that you could make a -- you could make a claim that none of that donning and doffing ought to be compensable. And, candidly, we've made that argument. But, unfortunately, the court didn't grant the petition on that particular -- on that particular question. So, we have to take it as a given. But I don't -- I don't -- I -- for exactly the reason you identify, Mr. Chief Justice, that does create a problem. I mean, part of this problem is a bit contrived. I don't think that the ordinary donning and doffing ought to trigger the beginning of the workday. But, assuming that it does --
03-1238 +++$+++ 2735 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you're saying --
03-1238 +++$+++ 2736 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I still don't think -- I'm sorry, Justice Souter.
03-1238 +++$+++ 2737 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, no, I didn't mean -- finish.
03-1238 +++$+++ 2738 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I still don't think that, even if you accept that that is compensable conduct within the meaning of Steiner, which I -- that's what it's talking about -- but Steiner, Justice O'Connor, doesn't say anything about the fact that there was going to have to be walking or traveling, or the workday. The court, in Steiner, clearly had in mind the workplace, where you're producing batteries. There's a lot of language in that opinion that says, "This is where you really do the work. That's your battery, and here's where you're going to get -- engage in activities that we think you need to be compensated." But the court never remotely suggested that you were entitled to the walking time between those two. And, if you go back to 790.7(g), that language specifically told every employer that simply because you have to pay for certain kinds of activities at the outset, because they're integral and indispensable, as decided by a court, that doesn't necessarily mean you have to pay for all the walking time. And so, you've got to come up with --
03-1238 +++$+++ 2739 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You would say that's --
03-1238 +++$+++ 2740 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a theory that supports that.
03-1238 +++$+++ 2741 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- so for all activities that are -- that are integral and indispensable? What about sharpening tools?
03-1238 +++$+++ 2742 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, sharpening tools is the easiest one, because you do that right on your workplace. I mean, that's exactly what Congress had in mind in its legislative history --
03-1238 +++$+++ 2743 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, no, no.
03-1238 +++$+++ 2744 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But your --
03-1238 +++$+++ 2745 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that's -- but suppose --
03-1238 +++$+++ 2746 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- but your time shouldn't start from then.
03-1238 +++$+++ 2747 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that's not the hypothetical. Suppose you sharpen the tools outside, by your locker, and then you -- then you go for a 10-minute walk to get to the -- and you carry the sharpened tool?
03-1238 +++$+++ 2748 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, again, if the Court decided that sharpening the tools, even though it's done not at the same time, which is what Congress had in mind when it -- when it identified that hypothetical -- but, even if you assume that, that that's integral and indispensable, it still isn't what triggers the time for starting the actual employment.
03-1238 +++$+++ 2749 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but isn't your -- in the answer that you just gave, and an answer which you have, in fact, consistently repeated, inconsistent with Steiner -- Steiner didn't say there is a separate category of integral activities. Steiner said that activities which are integral are part of the principal activity. And isn't your argument premised on denying that identity?
03-1238 +++$+++ 2750 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I can accept that identity for purposes of distinguishing between what's preliminary and postliminary activity. What I cannot do is to -- is embrace that for purposes of deciding when walking time/traveling time ought to be included. Congress was as plain as it could humanly be in saying that, "We're not going to allow walking and traveling time to be included in an unexpected fashion." And that is precisely -- as the Chamber of Commerce brief says, that is precisely what we're talking about here. And, candidly, as Judge Boudin said in his concurring opinion, the circumstances arising in this context bear a very eery resemblance to the situation that gave rise to the Portal-to-Portal Act in the first place. And so -- and I think it's important to put this into context. You know, the language of the statute, as I read it, clearly is in our favor. The purpose of the statute is clearly in our favor. And then the question is, Did this Court, in a decision that dealt solely with 4(a)(2), mean to vastly change the scope of 4(a)(1) in a way that would dramatically expose employers to liability --
03-1238 +++$+++ 2751 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why is it --
03-1238 +++$+++ 2752 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and --
03-1238 +++$+++ 2753 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- why is it so dramatic, if we recognize that nothing begins until the donning and doffing -- that is, the travel to wherever you don and doff?
03-1238 +++$+++ 2754 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
03-1238 +++$+++ 2755 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ None of that is included, even from the plant gate to the place where you don and doff.
03-1238 +++$+++ 2756 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the -- well, in part, because plants are not -- have never been designed -- remember, we've got 79.6 -- the Secretary of Labor told employers for 50 years, "You can set up your plant without fearing that you're going to suddenly be hit with walking time after somebody engages in donning and doffing, even if it turns out to be integral and indispensable." For 50 years, they followed that advice. They set up all of their plants with that expectation. And now this Court, if it follows the ninth circuit's lead, will suddenly say, "Okay, what you need to go out and find is all of the integral and indispensable activities" -- not just donning and doffing -- any integral and indispensable activity that you can get a court to buy into, that will start this ever-expanding workday, such that any walking that goes on after that and before you get done with all of these ever-expanding post-doffing activities. Then you have the -- that's -- you know, so you have this broad -- and that's why you're going to have these -- substantially greater and totally unexpected liabilities on the workplace.
03-1238 +++$+++ 2757 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where is that advice contained, that you say was given to --
03-1238 +++$+++ 2758 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ 790.7(g), footnote 49, and it says, as --
03-1238 +++$+++ 2759 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not --
03-1238 +++$+++ 2760 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- plain as day --
03-1238 +++$+++ 2761 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- not necessarily.
03-1238 +++$+++ 2762 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, but -- there -- there, it means always. Always.
03-1238 +++$+++ 2763 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you say that they operated on the assumption that it meant never.
03-1238 +++$+++ 2764 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I'm prepared to --
03-1238 +++$+++ 2765 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It seems to me they were on notice that, although it did not, necessarily, it might. I think you're --
03-1238 +++$+++ 2766 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It might, and -- but --
03-1238 +++$+++ 2767 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- you're exaggerating the effect of that statement.
03-1238 +++$+++ 2768 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Justice Scalia --
03-1238 +++$+++ 2769 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's right, they don't say -- I mean, they exclude, for example, the canine cases, where you have to walk and feed the dog in the morning before you show up at work. So --
03-1238 +++$+++ 2770 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the --
03-1238 +++$+++ 2771 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- they're not saying only --
03-1238 +++$+++ 2772 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the Secretary does. I don't know whether the plaintiffs necessarily do. And certainly the plaintiffs in those cases didn't. They took the position that the workday started as soon as you engaged in protecting the canines, just as in -- insurance industry, they -- the insurance adjusters are all taking the position that as soon as they have to get on the computer, that's an integral and indispensable part of their day, and everything after that, including traveling and movement, are all part and parcel of what gets added in there. What I'm suggesting to you is that once you go down this path and you say, "Okay, we're going to define the workday by reference to whatever somebody determines is integral and indispensable," you are going to have an expandable workday, and that if you are really looking for a fairly clear rule, you sit -- you stick with what the language of the statute says, which is, the actual place of the performance of the activity for which you were hired. Once you've got that in place -- that's not to say that's the full length of when you get compensated. You can be compensated for activities outside of that workday. Happens every day, when you have to come in for an emergency or if you have to come in --
03-1238 +++$+++ 2773 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ My problem with your argument is Steiner.
03-1238 +++$+++ 2774 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I understand the problem with Steiner, Justice Kennedy, but I think it is inappropriate to read Steiner, which says, point-blank, "Our holding does not deal with conduct that is specifically excluded by 4(a)(1)," and then -- and ignore that. That whole -- that statement of the holding of the court seems to me to say, "All we're telling you the answer to" --
03-1238 +++$+++ 2775 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, it doesn't.
03-1238 +++$+++ 2776 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- "is 4(a)(2)."
03-1238 +++$+++ 2777 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The only thing specifically included in (a)(1) is walking, riding, or traveling to and from the actual place of performance of the principal activity or activities. And once you assume that "principal activity or activities" includes everything that's integral and essential to principal activities, (a)(1) doesn't cover it.
03-1238 +++$+++ 2778 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, you can get to the logic of that. The question is, Is it appropriate to apply the "integral and indispensable" test, which is an atextual standard, in a way that essentially guts 4(a)(1) and the fundamentally important values that it was designed to serve? And what I'm suggesting to you is, that's a mistake. And we know that, because the regs protected us against this precise event. It is exactly what the Portal-to-Portal Act was designed to accomplish, and it's the better interpretation of this particular statute.
03-1238 +++$+++ 2779 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Phillips, may I just ask you a preliminary question about the IBM case -- IP -- IBP --
03-1238 +++$+++ 2780 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ IBP.
03-1238 +++$+++ 2781 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- IBP case? As I understand it, whatever we do here is irrelevant to what the bottom line is going to be in that case, because the determination is going to be made only under State law. The court below said that's what it was going to do. And the employees are not objecting. So, it seems that that case, as distinguished from Tum, is really not anything that this Court should decide, because it would be academic.
03-1238 +++$+++ 2782 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they don't argue that it's moot. And it's not purely academic. There are collateral consequences to deciding what the Federal law issue is in this particular context. We briefed this issue at the cert stage at some length, and the court granted cert, so I'm assuming that, in some respects, you, sort of, pass by that particular problem. There are collateral consequences. And the other side, again, doesn't say it's -- that it has mooted this case; it simply says that there's this serious issue on remand as to precisely how it'll all play out.
03-1238 +++$+++ 2783 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Could you give us a collateral consequence? I mean that is --
03-1238 +++$+++ 2784 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, because it -- reas judicata collateral estoppel effects from the ruling that we've -- that we have violated federal law, both that might be available to the Secretary of Labor and otherwise. If there are no further questions, I'll reserve the --
03-1238 +++$+++ 2785 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Phillips.
03-1238 +++$+++ 2786 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- balance of my minutes.
03-1238 +++$+++ 2787 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Goldstein.
03-1238 +++$+++ 2789 +++$+++ FALSE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: As the previous questioning suggests, the outcome of this case follows directly from Steiner. The Portal Act, by its terms, applies only to activities that occur before the commencement of -- before the commencement of, or after the conclusion of, the employees' principal activities. Steiner holds that donning and doffing, such as in this case, is "part of" -- that's a quote -- the employees' principal activities, and it, therefore, follows that the Portal Act applies only to activities either prior to, or after, that donning and doffing.
03-1238 +++$+++ 2790 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But why isn't walking from the gate of the -- of the factory to the -- to the place where you're on the assembly line, why isn't that integral and essential to the performing of the activities?
03-1238 +++$+++ 2791 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because -- and this is the language that Mr. Phillips is referring to in Steiner -- 4(a)(1) itself makes clear that a walk will not be the first principal activity, including on the theory that it's integral and indispensable. The first principal activity has to be something other than a walk, and that's what happens in this case. As in Steiner, there is donning at the beginning of the day. That's part of the principal activities --
03-1238 +++$+++ 2792 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, no, but if -- once you accept the theory that the principal activity includes those things that are integral, you can say walking from the gate of the plant to the assembly line is part of the principal activity. Now, walking to the gate may not be part of the -- may not be part of the principal activity, but -- I --
03-1238 +++$+++ 2793 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Two reasons, Justice Scalia. The first is the one that I gave, and that is, the Steiner Court concluded that -- and that was the end of the sentence, where it said, "except as excluded by 4(a)(1)," that Congress made clear in 4(a)(1) -- that the initial walk wouldn't be the first principal activity. Second, the walk won't be integral and indispensable. The test for whether or not something is integral and indispensable is whether it's work that's required and closely related to the productive activities. And simply walking to the donning station is not. That's in contradistinction to putting on the clothes that are required here, required as a matter of law in order to do your job. That's the line that the statute draws.
03-1238 +++$+++ 2794 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, what about the dog grooming cases?
03-1238 +++$+++ 2795 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The dog cases, Justice Kennedy -- and I -- let me make sure we're -- I have your hypothetical, and that is, the police officer at home grooms the dog --
03-1238 +++$+++ 2796 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
03-1238 +++$+++ 2797 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- then comes into the office. That is part of their principal activities. The subsequent commute is not compensable, on the ground that it is a break and a commute. That's covered by the Fair Labor Standards Act. The Portal Act is concerned with something else -- that is, before the beginning and after the end of your day. The dog cases are, of course, also entirely different from this one. You have -- you have arrived at the place of the performance of your principal activity. Steiner said that occurred, quote/unquote, "on or off the production floor." And so, you're at the plant, and your workday has started. Justice Scalia, you made the point, and I simply want to reinforce it, that the reference in -- to "principal activities" in 4(a)(2) is the same as the reference to "principal activities" in 4(a)(1), but it's also the reference to principal activities in the concluding clause of section 4. If I could just take the Court to that. The statute is obviously reproduced in a variety of places, but it's also at page 3 of our brief. And so, after 4(a)(1) and 4(a)(2), there's this concluding clause, and the text frames the workday. And it says that the Portal Act, 4(a)(1) and (2), will apply to activities which occur -- I'm quoting now -- "which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities." And it simply follows, as a matter of the plain text, that when Steiner held that those activities, "such principal activities," include the donning and the doffing, that everything that happens between those two events is not encompassed by the Portal Act.
03-1238 +++$+++ 2798 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Your --
03-1238 +++$+++ 2799 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What if -- what if --
03-1238 +++$+++ 2800 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- answer to Justice Kennedy said that the dog cases were distinguishable because there was a break in the principal activity. So, if we were to rule in your favor, all the employer has to do is make sure that the donning and doffing station's far enough away from the production line so that there will be a sufficient break between the two activities.
03-1238 +++$+++ 2801 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- both the donning and the doffing and the walking in between and the wait for the equipment, which is the bulk of the time in all these cases, would be compensable. The Department of Labor has regulations --
03-1238 +++$+++ 2802 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What do you mean "it would be" -- that's my question.
03-1238 +++$+++ 2803 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I'm sorry, Mr. Chief Justice. There -- the donning and doffing in the Alvarez case, by and large, happens in one place: in a locker room. In the Tum case, by contrast, the employees show up at a cage, they wait for things, they walk, they pick up something else, they wait, they pick up something else. And so, there's a body of time that I refer to as the donning and doffing process. All of that would clearly be compensable, even in your hypothetical. Your hypothetical would address the final piece of time, and that is, you get your last piece of clothing on, and you have to go to the floor, and the employer could say, "Take a 15 minute break," in there. I suppose that's hypothetically possible. I think the reason it doesn't happen in these cases and in the other cases I've studied is that the employer has an incentive, when they're forced to compensate, to do things efficiently. What happens is, the employer will say, "All right, your shift is going to start at 6:30 in the morning; therefore, you can clock in and start donning at 6:23." That's a 7-minute window, and that forces the employees to do everything efficiently. They don't insert artificial breaks.
03-1238 +++$+++ 2804 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but why -- if you're talking about efficiency, it may well be that the employees, instead of imposing upon the employer the costs of moving the donning and doffing location closer to the -- to the place where the real work is being done, they might prefer, instead, to get a slight salary increase per hour. But -- and that is -- that is possible, under the petitioner's scheme, because it is left to private negotiation; whereas, what you say is that they must pay for that. They must pay for that walk from the donning and doffing. They cannot negotiate out of it, because if it's in the Fair Labor Standards Act, it is mandatory. So I -- don't talk to us about efficiency. It seems to me that the efficiency arguments are on the other side. Leave it to the private sector. The employers -- the employees can decide what they care more about.
03-1238 +++$+++ 2805 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Scalia, I -- all I have in -- before me that I can rely on is the statute that Congress enacted. Your point would cover, of course, equally, the donning and doffing in Steiner itself. Congress made some choices about things that were going to be compensable. It's worth noting that Congress drew a line about whether -- in terms of whether there was a collective bargaining agreement involved, because under section 203(o) of the statute, in workplaces covered by a collective bargaining agreement, you can negotiate out of at least clothes changing. But I think within the framework of the statute that we do have, I am actually quite correct, and that is, right now, today, the employers have no incentive to adopt an efficient scheme for arranging donning and doffing. They can put things in different buildings if they like. The employees here are required to spend 10 or 20 minutes waiting for different clothing at different times, depending on how long the lines are. It is a workable scheme that Congress designed that said, "We're going to have a workday." And the employer is in charge of deciding when the workday begins or ends, but, during that workday, they're going to have to pay. I did want to --
03-1238 +++$+++ 2806 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Goldstein, I just wanted to have a clear answer to the question Justice Scalia asked you. Is it so that collective bargaining could not trade off the compensation for the walking and the donning and doffing for some other benefit that the employees might prefer?
03-1238 +++$+++ 2807 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, it is an unsettled question, is the answer. I will give you the best answer I can. 203(o) allows for the negotiation away of clothes changing time. The question whether clothes-changing time includes safety equipment is a matter in dispute. The ninth circuit held that it didn't. This Court denied certiorari on that question. The further question, if you did negotiate away the clothes changing time, whether that would negotiate away the walking and waiting time has not been confronted by a court, so far as I am aware. It might be said to logically follow, but it hasn't been decided. It's not presented by this case, because cert was denied. And so, I haven't thought very much --
03-1238 +++$+++ 2808 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, you say it's an open question.
03-1238 +++$+++ 2809 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is. I'm confident it's an open question.
03-1238 +++$+++ 2810 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What --
03-1238 +++$+++ 2811 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Could --
03-1238 +++$+++ 2812 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- about what gear qualifies? That is, here we have no dispute that this is protective gear. But it's not any changing that counts. So, how do we know whether this is the kind of donning and doffing that's compensated in -- or the kind that isn't?
03-1238 +++$+++ 2813 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The line that has been drawn by the Department of Labor, is where I will start, and the Department of Labor -- and let me give you some citations -- says that the line is between whether the employer requires you to do the donning and doffing on the plant or not. The citations for that are section 785.24(c) of the regulations, 790, note 65. And then it contrasts clothes-changing that's by your own choice, in 790.7(g). I think that's a sensible line, but it's not presented by this case. Justice Breyer, it goes to your characterization of the final sentence of footnote 49, and that is: sometimes. The reason I think it's sensible to draw the line that the Department has in required clothes changing is that the employer will only require you to do it onsite if it is truly integral and indispensable to your job; otherwise, it'll be optional, or they'll let you do it at --
03-1238 +++$+++ 2814 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can I ask you about a -- the other part of the case? I mean, I think, as I've suggested, most of these things are up to the agency. They're minor things in law, so -- but it seems well established in the agency reg, as well as in Skidmore, the famous line about waiting being, "Are you waiting to be engaged, or are you engaged to wait?" So, assuming that this is just putting on and off clothes that are essential -- so, assume you win on that part -- when they wait to put on the clothes, you would think -- if it's like an airport, sometimes you wait; if you're lucky, you don't. Well, under those circumstances, you wouldn't be engaged to wait. You're waiting to put on the clothes, not -- you know, etcetera -- so, why would you win on that part?
03-1238 +++$+++ 2815 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Can I, again, make sure I have the hypothetical in terms -- we are, in a sense, talking about the first wait. You show up at the first --
03-1238 +++$+++ 2816 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The -- what happens -- you win on the --
03-1238 +++$+++ 2817 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1238 +++$+++ 2818 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- clothes. They're protected gear. That's the assumption. That's part of the job. The workday begins. But you have to get there, and you wait to get the clothes. On that --
03-1238 +++$+++ 2819 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
03-1238 +++$+++ 2820 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- one, why not Skidmore? Why not the reg? And, if so, why don't you lose on that one?
03-1238 +++$+++ 2821 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You are -- in that situation, you're waiting for the very first piece of equipment. In the Tum case, you show up at the cage at the beginning of the day. You are engaged to wait. The regulatory citations are two: 790.6(b) and 790.7(h). There's also a case that's confronted this, which is the Metzler case, 127 F.3d 959. All those authorities make clear that if the employer tells you, "Show up to do something, show up here to put on your clothes," and, because of the way the employer has designed the system, you have to wait, through no fault of your own --
03-1238 +++$+++ 2822 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But suppose sometimes you have to wait? Sometimes it's a minute, sometimes it's nothing. Is it like an airport? Or does the employer here say, "You must show up seven minutes early, because there'll be a wait"?
03-1238 +++$+++ 2823 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's the -- it would be the same result whether the employer puts a time on it or not. The employer says -- I'll give you an example we could agree on, when it's a time --
03-1238 +++$+++ 2824 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that what the reg says?
03-1238 +++$+++ 2825 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The reg doesn't --
03-1238 +++$+++ 2826 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's surprising I didn't see that in the reg, if it says that.
03-1238 +++$+++ 2827 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The regulation gives this example, which I think is on point, and that is, if you are told to show up for when the production begins -- the meat's going to come across -- and the machine breaks down or they simply don't start sending the meat until five minutes later, the fact is that you get compensated, because you're supposed to be there. The fact that they tell you, "Be there for the" --
03-1238 +++$+++ 2828 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Where it's first in the day.
03-1238 +++$+++ 2829 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1238 +++$+++ 2830 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ First thing --
03-1238 +++$+++ 2831 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1238 +++$+++ 2832 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- in the day.
03-1238 +++$+++ 2833 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Unquestionably.
03-1238 +++$+++ 2834 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought you would say that the whole principle of, you know, "Are you engaged to wait, or waiting to be engaged?" just contradicts the principle that was adopted in Steiner. I mean, are you putting -- are you employed to put on your -- to put on your clothes, or are you putting on your clothes to do your work? And Steiner essentially repudiates that. So, you know, let's forget about Skidmore.
03-1238 +++$+++ 2835 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Scalia, I think Justice Breyer is testing a very particular piece of time.
03-1238 +++$+++ 2836 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, I understand.
03-1238 +++$+++ 2837 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He's trying to say, What is -- let me take you to the text of the statute --
03-1238 +++$+++ 2838 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, I --
03-1238 +++$+++ 2839 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- he's trying to figure out when the -- the final clause of 4(a) talks about commencement -- he want to know when it commences. Does it commence when you get in line or when you --
03-1238 +++$+++ 2840 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right.
03-1238 +++$+++ 2841 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- first get the piece of clothes? It's a fair question. The other side hasn't made any argument that it doesn't include the first wait, I think, because you're told that you have to don, it's part of your principal activity. Let me also say, this, I think, is a somewhat academic question when it comes to -- and nothing against academics, but the -- it's a somewhat academic question when it comes to actual workplaces, because what happens is what I described before, the employers, under employers that are following our rule, do set up a time clock, and they say, "Show up at 6:23, and that's when you can clock in." They have computerized swipe cards, and the computer won't recognize them until 6:23. And it's the time after that that will be compensable. So, if the Court were to say the donning and doffing process starts and ends the workday for purposes of the Portal Act, everyone will understand what the --
03-1238 +++$+++ 2842 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That wasn't decided below, was it? It was just a question of walking and waiting, and they weren't specific about whether that included waiting or walking, predonning.
03-1238 +++$+++ 2843 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. The reason for that is, there isn't a predonning wait in the Alvarez case, where the plaintiffs won, and the Tum plaintiffs lost on an unrelated theory that the actual donning and doffing couldn't start the workday.
03-1238 +++$+++ 2844 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, perhaps we shouldn't reach a question that hasn't been aired and decided below.
03-1238 +++$+++ 2845 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And my formulation, which is simply the donning and doffing process, would, in fact, leave the -- to the lower courts the question of precisely when donning begins and doffing ends. That's a fair point.
03-1238 +++$+++ 2846 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Goldstein, since you display such respect for the agency here -- [Laughter.]
03-1238 +++$+++ 2847 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- what do you do about the agency's footnote that flatly contradicts your theory of the case, and which says that the mere fact that donning and doffing may require compensation does not necessarily mean that travel between the clothes changing place and the actual place of performance would be excluded?
03-1238 +++$+++ 2848 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, my answer, I think, is that -- you had it right in the first half hour, and that is, that phrase -- [Laughter.]
03-1238 +++$+++ 2849 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- "not necessarily," can mean one of two things; i.e., we're denying that it follows a fortiori, or we're simply not deciding the question. The agency itself, which -- the Secretary wrote this guidance -- the agency explains that it meant that we're simply not deciding it. That's actually perfectly intelligible and a correct understanding of the history. Remember, the Portal Act gets enacted, and, right afterwards, the Secretary issues this guidance that then gets put in the CFR. This was their first reaction to the Act. Subsequently, after several years, these are -- what you're referring to is something in the -- what are known as the Part 790 guidance. Later on, the Secretary issued what's called the Part 785 guidance. And, in 785.3, it said, anything that, in 785, contradicts 790, controls. And 785.38 is the relevant citation. And there they say, "If you show up at the beginning of the day and you're given instructions, or you show up at the beginning of the day and you get a set of tools, what follows after that, in terms of travel time, is compensable." Can I answer two -- make two other very quick points? Justice Ginsburg, you asked about mootness. I would refer you to the Deposit Guarantee case, 445 U.S. 326, which talks about collateral estoppel effects. There is ongoing litigation against this defendant on this question, a case called Chavez, in the district court. The citation for the proposition that it will collaterally estop them is the restatement section of judgments, section --
03-1238 +++$+++ 2850 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I wasn't questioning that, so much as it is -- it is extraordinary for this Court to take a case when the bottom line is going to be the same. And, since we have the identical issues, with no such preliminary question in Tum, if we decide in your favor in the Tum case, then the other case is taken care of.
03-1238 +++$+++ 2851 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's true, you could dig the case. My only point is that it is not moot. And perhaps the variety of workplaces shown in the two cases would illustrate things for the lower courts. I suspect that may have been why the Court granted cert. I also wanted to respond to the suggestion that this is a surprise to industry, with just a couple of citations. Walking and waiting time has been held compensable since at least 1961. The Mitchell case, 286 F.2d 721, the Barrentine case, 750 F.2d 47. There was a meatpacking plant at least seven years ago, 127 F.3d 959. And this has been the agency's enforcement position at least since the late 1980s. It's sufficiently settled that the court of appeals here held that IBP's failure to pay for this time was a willful violation of the statute. If there are no further questions.
03-1238 +++$+++ 2852 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Goldstein. Mr. Gornstein.
03-1238 +++$+++ 2854 +++$+++ FALSE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Mr. Chief Justice, and may it please the Court: The Portal Act excludes walking time from compensation only when it occurs outside the workday, before an employee commences, or after he ceases, his principal activities. And Steiner held that the term "principal activities" includes activities that are an integral and indispensable part of the principal activities. It follows that when donning and doffing are integral and indispensable parts of the principal activities of the employees, then walking that occurs after donning, and before doffing, occurs within the workday, and it is not excluded from compensation by the Portal Act. Now, the employers in these cases have argued that the term "principal activities" does not encompass activities that are integral and indispensable parts thereof, and that Steiner did not so hold. But, at the very outset of its opinion, the Court, in Steiner, posed the question presented as whether changing clothes and showering are compensable as part of the employee's principal activities, and had answered that question several pages later by stating that it agreed with the conclusion of the court of appeals in that case that the term "principal activities" includes activities that are an integral and indispensable part of the principal activities, and that the activities in question in that case fit within that description. Now, that was the only textual basis on which the Court could have reached the conclusion that it did, because, if the only principal activities in that case had occurred on the production floor, then the changing of clothes at the beginning of the day, and the showering at the end of the day, necessarily would have been preliminary to and postliminary to said principal activities, and thereby expressly excluded from compensation.
03-1238 +++$+++ 2855 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ What if I think that opinion was just flatly wrong, that Congress, when it referred to the "principal activity or activities," was talking about the cutting of the meat or whatever the employer hired the person to do? He didn't hire him to put on clothes. What if I think that? Why do I have to extend what I think to be an erroneous decision beyond its narrow holding?
03-1238 +++$+++ 2856 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Justice Scalia, we are not asking for an extension of what you would regard as an erroneous holding. All we're saying is that you read the term "principal activities" as the Court interpreted it in Steiner. Once you do that, and you plug it into the statute, the plain language of the statute takes over, because it says that walking is only excluded when it comes before the employee commences, or after he ceases, the principal activities. Once you plug "integral and indispensable" into that sentence, as Steiner requires, then you are -- the plain language of the statute tells you that that time is not -- is compensable when it occurs after donning and before doffing.
03-1238 +++$+++ 2857 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Why can't I say that Steiner requires that interpretation of what constitutes a "principal activity" only for purposes of determining what is compensable, and that when we -- when we come to examine the separate question, of when the workday begins, we can -- we can apply, as far as precedent is concerned, a different interpretation of what is a "principal activity"?
03-1238 +++$+++ 2858 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Because the term "principal activity," I believe, as, you yourself, pointed out, is listed in the first -- at (a)(1). That's the first place it appears. Everywhere else it appears, including in (a)(2) and in the concluding sentence, it says "said principal activities." So, the statute itself tells you that the term "principal activities" has to mean the same thing everywhere it appears. And since you have already interpreted that term, in Steiner, to include "integral and indispensable activities," that terminology has to appear everywhere in the statute.
03-1238 +++$+++ 2859 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Mr. Gornstein, do you agree that just because it's a compensable activity doesn't necessarily mean that there isn't going to be a break in the workday? People have talked about the dog example, and there are others. I mean, and -- so, all you're talking about is the determination that this is a principal activity. It seems that there's a separate -- second question, which is, How do we tell if the space in time between two different principal activities, and they're two very different types of activities, is a break or part of the continuous workday?
03-1238 +++$+++ 2860 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Well, first of all, that question arises not under the Portal Act, which only applies before the principal activities begin and after they end, but under the Fair Labor Standards Act, itself. And that question would be governed by the Court's prior decisions on what constitutes hours worked, together with the Department of Labor's regulations that address what constitute hours worked. And -- within the workday -- and what the Department of Labor has said is, generally, everything within the workday is compensable, except for a meal period and except for a time period where there is a break that is so substantial that the employees can effectively use that time for their own purposes. And so, it says things like 5- to 20-minute breaks are not periods where the employee is not working, but they are resting for the further work. That is common in the industry. And so, that would be an issue that would arise when you had a break that was much longer than that, probably at least a half hour, where you can actually effectively use that time for your own purposes and are not required, essentially, to stay around on the employer's premises and to wait or rest to begin your work anew. So --
03-1238 +++$+++ 2861 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ I take it you then agree that the answer for which you argue here follows not merely from the text of 4(a), but the text of 4(a) plus a continuous -- some variety of a continuous workday rule.
03-1238 +++$+++ 2862 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ That's correct.
03-1238 +++$+++ 2863 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ You've got to have both.
03-1238 +++$+++ 2864 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ That you -- that you have to have a work under the Fair Labor Standards Act, and then you have to have the exclusion from that not apply.
03-1238 +++$+++ 2865 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Yes.
03-1238 +++$+++ 2866 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ The issue here, the exclusion doesn't apply, and nobody has raised the question about whether this is hours worked under the Fair Labor Standards Act. But clearly it is, under the Court's decisions.
03-1238 +++$+++ 2867 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ But you don't -- but you don't get the answer from simply the text itself.
03-1238 +++$+++ 2868 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ That's correct.
03-1238 +++$+++ 2869 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Did you say --
03-1238 +++$+++ 2870 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Mr. Gornstein, what about in the Tum case, the walking and waiting before the donning of the clothes?
03-1238 +++$+++ 2871 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Yes. On the -- on the waiting before the clothes, there's -- there are two series of waits: the first wait and then later waits. As to the later waits, once you decide that the donning begins the process of principal activities --
03-1238 +++$+++ 2872 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ I'm talking about the --
03-1238 +++$+++ 2873 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ The initial wait.
03-1238 +++$+++ 2874 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- these. The initial.
03-1238 +++$+++ 2875 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ The initial wait --
03-1238 +++$+++ 2876 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ You don't think that's covered.
03-1238 +++$+++ 2877 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ We do think that's covered. And under -- the Department of Labor's approach is to treat a required wait for an activity as an integral part of that activity. So, if that activity is, itself, compensable as a principal activity, then the required wait for that would also be --
03-1238 +++$+++ 2878 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ But the word --
03-1238 +++$+++ 2879 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- compensable as part of that.
03-1238 +++$+++ 2880 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- "required" is what I didn't understand in that. My airline example, what's required?
03-1238 +++$+++ 2881 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ What the -- the Department distinguishes --
03-1238 +++$+++ 2882 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ "Required" is -- sometimes there's a wait, sometimes there's not a wait. Is that required?
03-1238 +++$+++ 2883 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Well, if the employee is simply voluntarily arriving earlier than --
03-1238 +++$+++ 2884 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ He has to --
03-1238 +++$+++ 2885 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- he has to and wait --
03-1238 +++$+++ 2886 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- put on his uniform. And sometimes there's a wait, sometimes there's --
03-1238 +++$+++ 2887 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ When --
03-1238 +++$+++ 2888 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- not a wait.
03-1238 +++$+++ 2889 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ If --
03-1238 +++$+++ 2890 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Is that a required -- or not? And, if it is, where does it say that in the regs?
03-1238 +++$+++ 2891 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ It's a required wait anytime, in order to get to the production floor on time, the employee has to be at the donning station in a sufficient period of time to get there, and if there's a wait at that time, then he's being required to wait.
03-1238 +++$+++ 2892 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Mr. Goldstein acknowledged that that issue, the predonning wait, was not decided below.
03-1238 +++$+++ 2893 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ I'm not sure I view that the -- the question as not having been decided below. And the Court also did grant certiorari on waiting time.
03-1238 +++$+++ 2894 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ But it wasn't, obviously, decided in the first circuit, because they ruled against the employee's position.
03-1238 +++$+++ 2895 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ But they said "a reasonable period of time for waiting" is non-compensable. And that, at least as a general rule, is not --
03-1238 +++$+++ 2896 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ But the -- but the question of when -- what waiting are we talking about? Before the principal activity or only after? That specific issue, as I understand it, was not aired below.
03-1238 +++$+++ 2897 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Well, I'm -- my memory, at least, of the court of appeals opinion, is that it was saying that the wait before the donning was not compensable, because it was a preliminary activity. But I -- if you've read it differently, then that may be --
03-1238 +++$+++ 2898 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Do we have to decide the second question? I think it's actually quite difficult. I can find a lot of authority that seems to me just --
03-1238 +++$+++ 2899 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ The Court always has discretion not to decide --
03-1238 +++$+++ 2900 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ No, no, no.
03-1238 +++$+++ 2901 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- the question.
03-1238 +++$+++ 2902 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ I don't mean that.
03-1238 +++$+++ 2903 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ It's --
03-1238 +++$+++ 2904 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ I mean, is there -- is there a basis in this record -- will it make a difference? It's not really well briefed, I don't think.
03-1238 +++$+++ 2905 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ I -- the --
03-1238 +++$+++ 2906 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ It's not thoroughly briefed.
03-1238 +++$+++ 2907 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Justice Breyer, if you do not want to decide that question, you don't have to decide it.
03-1238 +++$+++ 2908 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ I don't do things on the ground --
03-1238 +++$+++ 2909 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ The Court granted --
03-1238 +++$+++ 2910 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- I'd like it or not.
03-1238 +++$+++ 2911 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- certiorari as an issue that can be, and should be, resolved, in our view. But if the Court doesn't want to resolve that issue, that's fine.
03-1238 +++$+++ 2912 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Mr. Gornstein, one thing I'm curious about. With all the trouble of various interpretations and famous footnote 49 --
03-1238 +++$+++ 2913 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ 49.
03-1238 +++$+++ 2914 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- why, in all these years, hasn't the Department of Labor gotten rid of it? [Laughter.]
03-1238 +++$+++ 2915 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ It should have. Because even at the time it was written, that reservation was in tension or not in conflict with the plain language of the regulations. And certainly by the time of Steiner, it was clear that this kind of time was compensable.
03-1238 +++$+++ 2916 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Thank you, Mr. Gornstein. Mr. Phillips, you have four minutes remaining.
03-1238 +++$+++ 2918 +++$+++ FALSE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. I just have a couple of points I'd like to make. First, Justice Breyer, I want to start with the waiting times. I didn't actually have an opportunity to spend much time talking about them. But I think the answer that the Solicitor General's Office has offered with respect to the waiting time simply illustrates the expandable nature of the workday. Their position -- Justice Ginsburg -- or, no Justice O'Connor specifically asked that question, "You're not saying that waiting time prior to engaging in a primary activity, in fact, starts the workday." And the answer is, absolutely, it does, because they find that everything that is integral and indispensable triggers the start of the workday. So, to put it into fairly graphic terms. If you have to show up in order to put on a coat in order to go onto the floor in order to do your services, then the waiting time for that coat counts. If, however, you also have to put in earplugs in order to get to the place where you have to get the coat, not only do putting in the earplugs count, under that theory, but, if you have to wait, you have that, and that extends the workday, and all of the walking in between there. So, if you're asking, "Is this going to become a significant liability?" the answer is clearly yes. For very significant compensable acts -- and, indeed, in this context, some of those compensable acts were found by the jury to be utterly diminimus -- you're going to end up with significant waiting time, and you're going to end up with significant walking time.
03-1238 +++$+++ 2919 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was the predonning waiting issue decided below?
03-1238 +++$+++ 2920 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice O'Connor, they specifically held that all of the waiting time is not -- it is to be excluded. And they did that on the basis of 790.7(g), before you get to the footnote -- because that's the tag to the footnote -- as to what is -- what is the ordinary meaning of wait -- of preliminary and postliminary for waiting time? And the expectation is that if you're waiting to get your check, and if you're waiting to check in, the recognition is that those -- those are completely fortuitous, just as it is here. There's nobody who structured this arrangement so that you will end up spending time waiting. Indeed, the scheme is designed to get people in as efficiently --
03-1238 +++$+++ 2921 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They decided --
03-1238 +++$+++ 2922 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- as possible.
03-1238 +++$+++ 2923 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- no waiting time. They didn't decide "if" waiting time -- "which" waiting time. But they said no -- it's irrelevant whether it's before or after, because waiting time isn't covered. So, I don't see how they specifically decided, yes, waiting time is covered, but not --.
03-1238 +++$+++ 2924 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think, Justice Ginsburg, if they specifically decide that there is no waiting time that's covered here, and the plaintiffs have sought compensation for both pre- and post-waiting time, then the issue is squarely posed, and they've certainly posed it in their petition, and the Court granted it. So, again, obviously, you're free to decline to decide issues, but it seems to me that one is posed. I want to --
03-1238 +++$+++ 2925 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it seems the court below said waiting time isn't covered, so we're not going to engage in any debate about what -- if waiting time is -- - were covered, which waiting time?
03-1238 +++$+++ 2926 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, but that just goes to the question -- I think it disposes of the issue of, if you have waiting time that otherwise looks to be fairly ordinary preliminary/postliminary activity, it, nevertheless, can be converted into primary activity under their interpretation of the statute. And they clearly suggest that the answer is yes. Our suggestion is, that's inconsistent with the way waiting time is handled under the regulations; and, therefore, the answer clearly should be no. And, at a minimum, the Court ought to affirm that part of the Tum decision. With respect to the holding of Steiner -- I mean, it's important to put in mind, Steiner -- one of the things -- two things that Steiner focused on -- it focused on section 3.0, and it recognized that there are going to be situations where you're going to be able to bargain away clothes changing. And so, now you're in a situation where, for some -- for -- in some circumstances, because you've bargained away compensation for clothes changing, walking that takes place before or after that will never be compensable; in other situations, it will be compensable. That's an absurd outcome in a situation where Congress clearly had one thing in mind that it absolutely wanted to accomplish, and that was to ensure that walking, riding, traveling to the place where you actually perform the services for which you've been hired, has been -- has -- is excluded from being mandatorily compensated -- Steiner doesn't deal with 4(a)(1); the language is as plain as it can be -- are not -- you know, unless specifically excluded by section 4(a)(1). Thank you, Your Honors.
03-1238 +++$+++ 2927 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Phillips. The case is submitted.
03-1293 +++$+++ 2931 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll now hear argument in Whitfield against the United States and Hall against the United States. Ms. Samek.
03-1293 +++$+++ 2933 +++$+++ FALSE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: Congress enacted 18 U.S.C. 1956(h) for the sole purpose of increasing the penalties for money laundering conspiracies. Congress did not intend to abandon the overt act requirement from money laundering conspiracies and for good reason. The list of specified unlawful activities under 1956 is vast. Anytime two or more people conspire or reach an agreement to commit a crime that generates economic proceeds, invariably the discussion will lead to what they're going to do with the money get -- that gets generated, how they're going to spend the money, which is a potential 1957 offense, or how they're going to hide the money, a potential 1956 offense. The Government would charge these agreements as money laundering conspiracies without there even being a single overt act to demonstrate that criminal intent had crystallized, that a money laundering conspiracy was really afoot, and that steps were being taken to launder money, oftentimes triggering substantially higher penalties for the underlying offense, and subverting -- subverting the overt act requirement for conspiracy to commit the underlying offense.
03-1293 +++$+++ 2934 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would you just clarify one thing for me? Did they have to prove an overt act in order to establish venue?
03-1293 +++$+++ 2935 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Excuse me?
03-1293 +++$+++ 2936 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does the Government have to prove an overt act in order to establish venue?
03-1293 +++$+++ 2937 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our position is that the venue provision in 1956(h) for a money laundering conspiracies requires that they establish an overt act and that venue would lie --
03-1293 +++$+++ 2938 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, your -- you say the -- the statute requires. I'm just asking if it independently of the conspiracy statute -- of the -- the substantive statute itself, how do they establish venue. Do they have to prove an overt act just for the purpose of getting a venue established --
03-1293 +++$+++ 2939 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-1293 +++$+++ 2940 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- as they do --
03-1293 +++$+++ 2941 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is that the only basis for venue? I mean, I thought the statute provides that's just one of the bases for venue.
03-1293 +++$+++ 2942 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our position is that the venue provision in 1956, 1956(i), is the exclusive venue provision for money laundering.
03-1293 +++$+++ 2943 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- but read it. What does it say?
03-1293 +++$+++ 2944 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are we talking about section 1956(i)?
03-1293 +++$+++ 2945 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Section 1956(i) is the venue provision.
03-1293 +++$+++ 2946 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And doesn't it allow it to be brought where venue would lie if the completed money laundering offense that's the object of the conspiracy has been accomplished or anywhere an overt act was committed? Isn't it an either/or?
03-1293 +++$+++ 2947 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Our position is that when you read the venue --
03-1293 +++$+++ 2948 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you don't have to read it as requiring venue. It's just requiring an overt act. If there is an overt act, then venue will lie, but it also will lie where the completed offense would have occurred.
03-1293 +++$+++ 2949 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly, but where the completed offense occurs, there certainly would be overt acts. You know, it's inherent in completing the money laundering transaction that there would be overt acts as part of the financial transaction.
03-1293 +++$+++ 2950 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But why would they state it in the alternative if -- why would they state it in the alternative if the overt act were always required? That's the --
03-1293 +++$+++ 2951 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree that it's -- it's somewhat confusing, Your Honor, but we would submit that the Government's interpretation of subclause (2) is that if two people conspired in -- if two people in Florida conspired to commit a money laundering offense in California, absent any overt act whatsoever, conspiracy would lay in California.
03-1293 +++$+++ 2952 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that doesn't respond to the venue question. Venue, as written in this statute and in most statutes, is permissive. It gives you a choice of forum. It doesn't limit. In -- in the times when venue is exclusive, Congress is explicit in telling you that, but ordinarily a venue provision, as this one, either/or, is permissive. It would be extraordinary to make a venue provision exclusive.
03-1293 +++$+++ 2953 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this Court has made venue provisions exclusive in the patent infringement context and in the Banking Act precisely using the --
03-1293 +++$+++ 2954 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, this Court has no authority to make a venue provision either exclusive or permissive. Congress decides that.
03-1293 +++$+++ 2955 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And our position is that Congress made this venue provision the exclusive venue provision --
03-1293 +++$+++ 2956 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I -- I mean, one can understand that if the venue provision just read, a prosecution may be brought in any -- in -- let's see -- may be brought in the district where venue would lie for the completed -- if it just read, venue will lie in any district where an act in furtherance of the attempt or conspiracy took place, then we could argue about whether that is the exclusive venue or not. But I don't see how there is even an argument that it's the exclusive venue when you're dealing with a provision which says that a prosecution may be brought in the district where the -- where venue would lie for the completed offense or in any other district where an act in furtherance took place. How can you possibly read that to say that the exclusive venue is a place where an act in furtherance took place?
03-1293 +++$+++ 2957 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our position is that those are the two alternatives for where venue would lie for a conspiracy case.
03-1293 +++$+++ 2958 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, okay, but -- but then -- then you acknowledge that the place where an overt act took place is not the exclusive venue.
03-1293 +++$+++ 2959 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our argument is that the first clause of that provision contemplates the existence of an overt act.
03-1293 +++$+++ 2960 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about the rule provision for venue, which has not been excluded by the statute? The ordinary provision for venue.
03-1293 +++$+++ 2961 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The ordinary provision for venue would be that venue lies in the district where the crime occurs.
03-1293 +++$+++ 2962 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
03-1293 +++$+++ 2963 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be -- in the money laundering context, under our interpretation of 1956(h), that would be where the overt act occurs. So it would be consistent with it. Our --
03-1293 +++$+++ 2964 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought the crime is the conspiracy. The overt act may be an additional requirement.
03-1293 +++$+++ 2965 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The overt act is part of -- it's our position that the overt act is required, and there needs to be an agreement --
03-1293 +++$+++ 2966 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you will -- you will concede that there are many Federal crimes, conspiracy crimes, in which an overt act is not required. The Shabani case requires you to recognize that.
03-1293 +++$+++ 2967 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct. And in those cases where all that's required is an agreement, then venue would lie where the agreement occurs, but in this case, because the -- the offense requires an agreement plus an overt act, it's our position that that's where venue would lie. As a practical matter, if there is -- if -- if this Court construes 1956(h) as requiring overt act, as a practical matter, anytime two people agree to commit a money laundering conspiracy in one district and commit overt acts in another district in furtherance of that, it would be highly unlikely that there would not be some overt act in the district where they agreed to commit the offense.
03-1293 +++$+++ 2968 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you're saying that it doesn't mean very much because an overt act wouldn't be hard to prove.
03-1293 +++$+++ 2969 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As a --
03-1293 +++$+++ 2970 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But there are -- I mean, the difference between statutes that say overt act is required and those that just say conspiracy -- there are many, many such statutes, and we dealt with one in Shabani. But of all the statutes that include no express overt act requirement, have any of them been read to implicitly include one, which is the argument you're making that we should adopt here?
03-1293 +++$+++ 2971 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. And no. There -- we have not found any cases where the Court has heretofore read an overt act requirement into a conspiracy provision. But this statute is unique. The money laundering statute is unique. If you look at the statute and we lay it out -- the statute in total -- in our reply brief, starting at 1a -- the structure of 1956 strongly supports our position that all Congress was doing, when they enacted 1956(h), was increasing the penalty for money laundering conspiracies. As this Court is well aware, when Congress typically writes a complex statute, the statute begins by setting forth all of the offense elements. Here, that would be set forth in (a)(1), (a)(2), and (a)(3). The statute then goes on in subsection (b) to set forth the civil penalty provisions. Subsection (c) then defines the various terms used in the act. Subsection (d) then talks about relationships with other laws. Subsection (e) identifies those Federal agencies that can investigate money laundering offenses. Subsection (f) talks about circumstances under which there would be extraterritorial jurisdiction. Subsection (g) then talks about recording -- reporting requirements, and then you get to subsection (h), which we say, when you read the statute as a whole, clearly intends simply that the penalty for money laundering conspiracies would be increased to the same penalties as those prescribed for the offense provision.
03-1293 +++$+++ 2972 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Except that there are other statutes that -- that read this way, which we have held to -- to create the conspiracy offense, as well as impose the penalty for it.
03-1293 +++$+++ 2973 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor --
03-1293 +++$+++ 2974 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, it -- it could do that. Any person who conspires to commit any offense defined in this section shall be subject to the same penalties as those prescribed for the offense. And that could be deemed to create the conspiracy offense and prescribe the penalty for it.
03-1293 +++$+++ 2975 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It could be construed as a freestanding offense provision --
03-1293 +++$+++ 2976 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And there are other such provisions, aren't there?
03-1293 +++$+++ 2977 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are not any other offense -- conspiracy provisions that this Court has interpreted that had the same structural ambiguity as 1956(h).
03-1293 +++$+++ 2978 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, Shabani comes pretty close, doesn't it?
03-1293 +++$+++ 2979 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Shabani is a separate, distinct statute. 846 was a separate, distinct, discrete offense statute.
03-1293 +++$+++ 2980 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- like this it seems to me contains no express requirement of an overt act, and we've said, indeed, none is required and that at common law it wasn't required.
03-1293 +++$+++ 2981 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true.
03-1293 +++$+++ 2982 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So why would we read it in here?
03-1293 +++$+++ 2983 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because text -- as this Court has said on multiple occasions, in order to understand what the words mean in a statute, you have to look at context. So you have to look at where the provision is placed and what Congress meant by that provision and look at the statute as a whole. If anyone -- if we look --
03-1293 +++$+++ 2984 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If you look at this statute as a whole, you don't find the overt act requirement in it anywhere, do you?
03-1293 +++$+++ 2985 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You don't find the overt act explicitly in the statute.
03-1293 +++$+++ 2986 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the fact that you described it as a long, detailed statute it seems to me cuts against you.
03-1293 +++$+++ 2987 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, because our position is that placing it in subsection (h) evidences that Congress' intent and sole focus when they enacted this was the purpose of increasing the penalty for money laundering. The --
03-1293 +++$+++ 2988 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let's get --
03-1293 +++$+++ 2989 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And they were making it unnecessary to rely on the general conspiracy statute in 18-371 or whatever it was.
03-1293 +++$+++ 2990 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's our position that they're incorporating the overt act requirement, the act in furtherance requirement, from 371 as evidenced by the legislative history.
03-1293 +++$+++ 2991 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If that's so -- if that's so, then why does the venue provision which you were just alluding to earlier read, except as provided in paragraph (2), a prosecution for an offense under this section. An offense under this section or section 1957 may be brought in -- and then it says -- (2) a prosecution for an attempt or a conspiracy offense under this section. Not under section 371, but a prosecution for an attempt or a conspiracy offense under this section.
03-1293 +++$+++ 2992 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And it would be an offense under this section because certainly the jury would need to find that the object of the conspiracy was money laundering. So it would be an offense in that respect.
03-1293 +++$+++ 2993 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I -- I think that language really cuts very hard against you. A conspiracy offense under this section. It -- it is reading as though that's the section that defines the offense, not just the section that provides the penalty.
03-1293 +++$+++ 2994 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I can see how you would read it that way, Your Honor, but the offense --
03-1293 +++$+++ 2995 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Only because I'm a reasonable man. (Laughter.)
03-1293 +++$+++ 2996 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The offense provisions set forth in 1956 are clearly set out and enumerated in subsection (a)(1), (a)(2), and (a)(3). In 1988 -- when the statute was originally enacted, (a)(1) and (a)(2) set forth the offense provisions. When the statute was amended in 1988 and Congress intended to create another offense provision, they set forth (a)(1) -- the third sting provision which is (a)(1)(iii). If Congress intended to create an offense provision when they enacted 1956(h), they would have set it forth as (a)(1)(iv), or alternatively, they would have added or conspires to each of the predecessor offenses. Notably, the offense provision at issue here does not include attempts, which 846 did, and which the overwhelming majority of conspiracy subsections include -- attempts are included with offenses. The fact that Congress did not include attempts in this provision again reflects the fact that they were solely focused on 371, a conspiracy offense, and all they were trying to do was increase the penalty. The placement of the --
03-1293 +++$+++ 2997 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then you would expect at least a cross reference to 371 for defining the conspiracy, but there's nothing here.
03-1293 +++$+++ 2998 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, and it clearly would -- it certainly would be clearer had they done so. But if you take the language originally, this provision was proposed by Representative Annunzio to be an amendment to 371, and we lay out in our -- in the blue brief at page 12 what that amendment would have looked like, virtually identical language to 1956(h). Certainly if you read it in subsection 371 -- if you take the identical language and put it in section 371, there wouldn't be much of an argument, we would submit, that Congress surely intended to include the overt act, act in furtherance language and they were just talking about increasing the penalty for money laundering. That makes our point that you look at the language, and depending on where it's placed in a statute, it can have different meanings.
03-1293 +++$+++ 2999 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You have given a few examples of a word may mean different things in different contexts, but you haven't given any example -- and I don't know that there is one -- where the entire string of words is identical in two statutes, both dealing with conspiracies, and you read an overt act requirement into one and not the other. I mean, you have a much harder argument to make when you're talking about an entire provision where the wording is almost identical than when you're talking about one word used in different contexts.
03-1293 +++$+++ 3000 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, Your Honor, but as this Court said in Shabani, absent contrary indications, the Court will presume that Congress intends to incorporate the common law concept of the terms that it uses. In Shabani, the defendant did not argue any contrary indications. They argued that at common law conspiracy required the commission of an overt act. That is not our position. But our position is that here there are contrary indications, and because the statute is ambiguous based on the placement and structure of 1956(h), you have to look to see if there are other indications. And clearly in the legislative history --
03-1293 +++$+++ 3001 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but there's nothing in the text of the statute that's ambiguous, is there?
03-1293 +++$+++ 3002 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, but that is not dispositive because the placement the Congress has said -- I mean, this Court has said on multiple occasions that you need to read a statute as a whole, and when you look at the --
03-1293 +++$+++ 3003 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if you read it as a whole, you can't find any ambiguity.
03-1293 +++$+++ 3004 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think you can find ambiguity, Your Honor.
03-1293 +++$+++ 3005 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In the text of the statute?
03-1293 +++$+++ 3006 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the --
03-1293 +++$+++ 3007 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Reading the whole text.
03-1293 +++$+++ 3008 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Reading the whole text of the statute, it looks to me it reads that the offenses are set off -- set forth at the beginning, followed by the civil penalties, then procedural aspects, including this penalty provision for increasing conspiracies.
03-1293 +++$+++ 3009 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ None of which mentions an overt act.
03-1293 +++$+++ 3010 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it doesn't mention an overt act, but --
03-1293 +++$+++ 3011 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So I don't find anything ambiguous in what you describe.
03-1293 +++$+++ 3012 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we believe that 1956(h) clearly reflects Congress' intent to solely increase the penalty.
03-1293 +++$+++ 3013 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Perhaps that's all they thought of, but maybe they did a little more than they thought they were doing.
03-1293 +++$+++ 3014 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if Congress inadvertently omitted the overt act requirement, this Court has on prior occasions read into congressional silence terms, definitions that Congress may have inadvertently left out. So in United States v. Taylor, for example, the question was whether or not Congress intended to revert back to the common law definition of burglary in the Career Criminals Amendment Act, and in 1984, the Career Criminals Amendment Act had language that talked about a generic burglary, breaking and entering into a dwelling. In 1986, when they amended the act, they removed that language. The question before the Court then came up what does -- you know, what does burglary mean. Congress had omitted those words, but the Court found that that wasn't Congress' intent. They clearly didn't intend to revert back to the common law, and it was probably an error of drafting and this Court found that generic burglary was the standard. So this Court has done that before. In the -- in the Perrin case, United States v. Perrin, the same thing. There -- words were missing from the statute and the Court did not find that in Perrin -- it was a bribery case, and what was at issue was whether or not the -- the statute covered bribery of private persons or only the common law definition where it would only incorporate bribery of public -- public persons, public officials. And the Court said even though there are other statutes that have private person language in it, similar to this case, even though there are other statutes that have overt act requirements in it, we are not going to assume that Congress intended to revert back to the common law and interpret bribery as only applying to public officials. So this Court can look at the legislative history. The purpose is clear. The Government admits that the purpose of the act was to increase the penalty. Prior to 1956(h), money laundering conspiracies were prosecuted pursuant to 371, which required the commission of an overt act. Congress clearly intended to increase the penalty from 5 years to a potential 10 or 20 years, based on what the object of the conspiracy was. The legislative history all reflects that fact, and the Government admits that. The -- as contrasted with 846, which -- in which the public law described 846 in a section labeled offenses and provision in the money laundering context, the public law described 1956(h) as a penalty to increase the -- as a money laundering conspiracy for increasing the penalty.
03-1293 +++$+++ 3015 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can I -- can I ask what you make of subsection (d) of -- of this provision which says that violations of this section may be investigated by such components of the Department of Justice as the Attorney General may direct and by such components of the Department of the Treasury as the Secretary of the Treasury may direct, as appropriate, and with respect to offenses over which the Postal Service has jurisdiction, by the Postal Service? Apparently there was some turf war going on as to who had jurisdiction over these offenses and -- and this was meant to -- to solve the turf war, but it reads violations of this section. Now, does that allocation of authority among Justice and Treasury and the Postal Service not apply to the conspiracy offenses under section 371? Because that's not a violation of this section.
03-1293 +++$+++ 3016 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure I understand your point. I would think that if it's a conspiracy to commit -- if the specified unlawful activity is one of the postal offenses or one of the customs offenses, both of which carry --
03-1293 +++$+++ 3017 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The offense is never completed. there's nothing -- nothing occurs except a conspiracy, and you're telling us a conspiracy is not a violation of this section. This section sets forth the penalty -- that's your argument -- but it does not establish the offense. The offense is established by 371. If that's the case, this allocation of responsibility among the various divisions of the Government doesn't apply to conspiracy prosecutions, which would make no sense at all.
03-1293 +++$+++ 3018 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's our position that when Congress enacted this, they were trying to enact a penalty-enhancing statute. 1956(h) then incorporates or impliedly recognizes the overt act requirement from 371. Congress was not intending to change the way money laundering conspiracies were prosecuted. They would have done so under 371, requiring the act in furtherance, and a jury or a judge would find that money laundering was the object of the conspiracy. That's how Congress envisioned this act as -- as being applied, and so I would assume Congress would envision that if it was a conspiracy to violate one of the postal offenses, that the postal authority would have had authority to investigate that offense. Interesting --
03-1293 +++$+++ 3019 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What do you -- excuse me. What -- what do you make of -- of this argument? Let's start with the premise that Congress wasn't thinking about overt acts at all. Start with the premise that you argue from that what Congress was concerned with here was primarily penalty. However, Congress did this in a context in which there are two recognized kinds of statutes, two recognized kinds of -- of conspiracy formulations. And if one has the magic words in it referring to an overt act, you got to prove an overt act. In the other variety, there's no reference to overt acts, and as a general rule, you don't have to prove overt acts. Why isn't it a sensible interpretive rule to say, look, when there are recognized models and Congress, in fact, chooses one rather than another, we're not going to get into the question of did Congress really mean to make a change when it picked one model rather than the other? It simply picked one model, and the -- the clearest way to have a coherent system of conspiracy law is to apply the model. If it didn't talk about overt act, there's no overt act requirement. Why isn't that a sensible way to -- to work our way through these thickets?
03-1293 +++$+++ 3020 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I think that would be a sensible way to work your way through thickets of statutes that were enacted after Shabani when this Court created that formulary.
03-1293 +++$+++ 3021 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But Shabani rested on -- on the existence of these prior models. Shabani didn't create them.
03-1293 +++$+++ 3022 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, but there is nothing in the legislative history to suggest that Nash and Singer, the cases that Shabani relied on, were ever discussed or contemplated by Congress. If Congress was going to make such a fundamental change in how they were going to prosecute money laundering conspiracies, they would have said so. We're not talking about a backdrop of not requiring an overt act and should Congress read an overt act into Congress' silence.
03-1293 +++$+++ 3023 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There are about -- there are over 50, I think, in title 18 alone conspiracy provisions with no overt act requirement, no explicit overt act requirement. The -- the argument you're making, I suppose, would require this Court to go by -- one by one through those 50-odd statutes, and there would be contests of every one because the absence of those words is not dispositive, as you see it. So you would be generating a controversy about 50-odd statutes that would be gone, that just wouldn't be there if you agreed with Justice Souter's approach.
03-1293 +++$+++ 3024 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we don't -- we don't believe that's the case because if you look at all of those subsections in title 18, none of them have the structural ambiguity that 1956(h) has, combined with a venue provision --
03-1293 +++$+++ 3025 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Have you looked at all 59, I think --
03-1293 +++$+++ 3026 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
03-1293 +++$+++ 3027 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- and assured yourself on that?
03-1293 +++$+++ 3028 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I've -- I've looked through the entire statute, and I have not found -- title 18. I have not found any that have both an anomaly, a structural anomaly, and a venue provision that turns on the existence of an overt act.
03-1293 +++$+++ 3029 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, we've already dealt with venue where I think your argument is exceedingly weak since the statute phrases it as a permissive not a requirement.
03-1293 +++$+++ 3030 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first of all, we would submit, just briefly on -- on the venue point, if Congress wanted this to be a permissive venue provision, they could have said venue would lie where and in the circumstances or as otherwise required by statute, in which case they could have shown that they were applying to other statutory bases for venue, as well as what Congress was establishing here. They didn't do that. The venue provision was enacted in response to this Court's decision in Cabrales, which dealt with the money laundering -- the substantive offense of money laundering, and this Court's suggestion that money laundering could be considered a continuing violation for purposes of 18 U.S.C. 3237, the continuing offense venue provision. If all Congress was doing was codifying that principle and trying to address the issue in Cabrales, they would have just dealt with substantive money laundering in the venue provision. They would not have also included a provision in the venue section dealing with conspiracy. The fact that they did and the fact that they used language that this Court has previously found to --
03-1293 +++$+++ 3031 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It gave -- it gave the prosecutor more choices of where to bring suit.
03-1293 +++$+++ 3032 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We say those are the only choices on where to bring suit. But --
03-1293 +++$+++ 3033 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you want to reserve any time?
03-1293 +++$+++ 3034 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, yes. I'm sorry.
03-1293 +++$+++ 3035 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Marcus.
03-1293 +++$+++ 3037 +++$+++ FALSE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: The money laundering conspiracy statute does not require proof of an overt act for three reasons. First, the text of the statute contains no such requirement. Second, the statute is modeled on the drug conspiracy statute which this Court unanimously held in the Shabani case does not require proof of an overt act. Third, the statute was enacted against the background rule of statutory construction that -- that a conspiracy provision, whose text conditions liability on the act of conspiring only, will be construed to follow the common law, where proof of an overt act was not required for conviction. This Court should adhere to its bright line rule in this case because it provides clear guidance to Congress and to the lower courts. Petitioners seek to avoid application of the bright line rule on a variety of grounds, none of which has -- none of which has merit. I will address a few of those grounds here. First, the money laundering conspiracy statute, section 1956(h), is not a penalty provision for the general conspiracy statute, section 371. Section 1956(h) does not contain any reference to section 371, and petitioners are unable to cite any provision in the United States Code that provides a penalty for an offense defined elsewhere, without also referencing where that offense is defined. Under petitioners' theory, if section 371 were repealed tomorrow, section 1956(h) would also no longer be valid. But there is --
03-1293 +++$+++ 3038 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If -- if 371 were repealed, would it affect the actual practice in the Justice Department? I -- I think I recall reading in the briefs for the other side that -- that the -- the United States has continued to charge conspiracies in money laundering cases under 371. Is that correct?
03-1293 +++$+++ 3039 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, my understanding is on -- on occasion that is done in a multi-object conspiracy case. Where there are several objects to the conspiracy sometimes for purpose of simplification, the Government will just -- will charge a 371 --
03-1293 +++$+++ 3040 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But not in exclusively laundering cases.
03-1293 +++$+++ 3041 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Generally, no. There might be -- there might be an occasional example where it may have been an oversight where a prosecutor may have overlooked section 1956(h), maybe soon after 1956(h) was enacted, but generally speaking no. The money laundering conspiracy prosecutions were done under 1956(h).
03-1293 +++$+++ 3042 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ When -- when you say when there are multiple objects, you're not getting the money -- money laundering just under 371. You'd surely charge both under 371 and under -- under -- what is it? 1956.
03-1293 +++$+++ 3043 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Justice Scalia. You could. You could prosecute -- you could prosecute them as -- as separate offenses, but sometimes the Government for -- just for purpose of simplification will just charge one -- one agreement with multiple objects, and one of those objects might be a money laundering object.
03-1293 +++$+++ 3044 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If it were just money laundering, could you charge under 371?
03-1293 +++$+++ 3045 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, you could charge under 371. There's nothing that prevents the Government from doing so. This Court has -- has held before, for example, in the Batchelder case that there can be multiple provisions that essentially cover the same conduct, and the Government has discretion to choose which one to use. Generally speaking, the money laundering conspiracy statute contains higher penalties. So the practice today is -- is to prosecute those offenses under section 1956(h). Another -- another reading there -- another reason they're reading that it's a penalty provision should be rejected is that Congress modeled section 1956(h) on the drug conspiracy statute that's virtually identically worded to section 1956(h), and no one disputes that the drug conspiracy statute establishes a freestanding criminal offense.
03-1293 +++$+++ 3046 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ This is 846.
03-1293 +++$+++ 3047 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 846, yes, in title 21. Petitioners also argue that because prior to enactment of section 1956(h), the Government had to prosecute money laundering conspiracies for 6 years under section 371, that this Court should presume that Congress intended to perpetuate the overt act requirement of section 371 into the money laundering conspiracy offense. But this Court looks, first, to the text of the statute to discern Congress' intent, and had Congress wanted to perpetuate section 371's overt act requirement, it could have easily modeled the text of section 1956(h) on the language from 371 or on the language from any of the other numerous conspiracy provisions in the code that contained express overt act requirements. Congress chose a different model, the drug conspiracy statute, which as I said before, this Court held in Shabani does not contain an overt act requirement. By choosing that model, Congress manifested its intent not to require proof of an overt act because at the time it -- because at the time it acted, the background rule of statutory construction provided that a conspiracy statute that conditions liability solely on the act of conspiring would be construed to follow the common law. Petitioners point to silence in the legislative history, but the silence in the legislative history on the overt act requirement is not the kind of compelling evidence of -- of contrary intent that would justify departing from the text of the statute and this Court's bright line rule. Finally, petitioners rely on a venue provision for money laundering cases, section 1956(i), which was enacted 9 years after the money laundering conspiracy statute at issue here. That venue provision reflects Congress' intent to identify a variety of districts in which money laundering cases can be brought. It does not reflect an intent to redefine the -- the elements of the substantive money laundering conspiracy offense.
03-1293 +++$+++ 3048 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What do you make of the -- the argument that I think occurs in the yellow brief, that -- the reference to any other district where an act in furtherance, et cetera, took place implies that in the clause preceding, they were referring to a district in which an act in furtherance took place?
03-1293 +++$+++ 3049 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, I think what -- what that terminology was -- was referring to was district. The other is meant to modify district. In other words, the first -- the first clause there provides a venue where the case can be brought. And if it's not brought in that -- if it doesn't fall within that venue, then you can bring it in -- in a different district, an other district. I think that's the -- the best way to read the -- the statute. I mean, otherwise, it could have -- as it was pointed out during petitioners' argument, otherwise they could have just had one. They wouldn't need separate clauses. They could have just had one clause that said, and the case -- the conspiracy case can be brought in any district where an overt act was committed. Petitioners seize on the fact that the venue provision permits venue to be laid in any district in which an overt act was committed. But the rule in conspiracy cases has always been that an overt -- that venue can be laid where an overt act was committed regardless of whether an overt act was an element of the offense. At common law, as I said before, conspiracies -- a conspiracy conviction did not rely -- depend on proof of an overt act, and yet venue could always be laid at common law where an overt act was committed. The common law venue rule has been applied consistently to modern Federal conspiracy statutes, such as the drug conspiracy statute, which likewise does not require proof of an overt act as an element of the offense. Congress' codification in the money laundering statute of -- of this -- of this venue principle cannot be read to presuppose an overt act element when the very venue rule it was codifying did not presuppose one. If this Court -- if this Court has no further questions --
03-1293 +++$+++ 3050 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I had just one other question, just out of curiosity, about how important this case is. How many prosecutions under this statute does the Government bring without proving an overt act?
03-1293 +++$+++ 3051 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm -- I'm not aware of -- I'm not aware of a number, Justice Stevens.
03-1293 +++$+++ 3052 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are there any?
03-1293 +++$+++ 3053 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I don't know. I mean, it's --
03-1293 +++$+++ 3054 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It seems to me quite unlikely.
03-1293 +++$+++ 3055 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1293 +++$+++ 3056 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm just wondering. It seems to me sort of a tempest in a teapot, this whole case to me.
03-1293 +++$+++ 3057 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I think it's true in the vast majority of cases, the Government does have proof of an overt act. And, of course, overt acts help establish the -- establish the agreement and -- and to convince the jury beyond a reasonable doubt there was an agreement. If the Court has no further questions --
03-1293 +++$+++ 3058 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I -- I do have one and it's not on the money laundering conspiracy issue, but in this particular case, would it be consistent with the position that the Solicitor General has been taking for us to hold the final disposition of this case pending Booker and Fanfan? Wasn't there a sentencing question?
03-1293 +++$+++ 3059 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's our position that it wasn't -- they didn't raise that issue in -- in the court of appeals. They didn't raise the Sixth Amendment issue in the court of appeals. They didn't raise that issue in their cert petition here, and so it's -- it's not covered by the -- by the question presented. So it is the position that we've -- that we've set out in the brief that it should not be -- it should not be held pending that -- that disposition in Booker and Fanfan.
03-1293 +++$+++ 3060 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And that's consistent with the position that the Government has been taking routinely in cases where Booker -- where the sentencing guidelines are an issue?
03-1293 +++$+++ 3061 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think in the -- I think that that position is based on petitions that have raised the question, I believe. If -- if the Court has no further questions, it should reaffirm the conspiracy statutes that do not contain an overt act requirement should not be read to include one. Thank you.
03-1293 +++$+++ 3062 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Marcus. Ms. Samek, you have about 3 and a half minutes left.
03-1293 +++$+++ 3064 +++$+++ FALSE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Justice Ginsburg, you had inquired about the number of subsection -- conspiracy subsections, and I didn't get a chance to answer your question. Even if you don't find the statute is unique because of the venue provision, as my review of the conspiracy subsections in title 18, there were only about two others out of the 50-some-odd cases that have the same structural anomaly that 1956(h) does. So this would not be opening up a can of worms to say that in this case an overt act clearly was intended by Congress and that we need to look at congressional intent. So it wouldn't be -- require -- a holding in this case consistent with congressional purpose would not require the Court to then have to review every single title 18 conspiracy subsection. As the Government pointed out, money laundering cases are not typically prosecuted without the commission of an overt act because overt acts are relatively simple to prove. There's no reason why Congress would have intentionally eliminated the overt act requirement from money laundering conspiracies when, on the one hand, it's easy to prove, but on the other hand, it placed such a critical value in money laundering conspiracies because it's not just that it shows that criminal intent has crystallized and that money laundering is actually afoot, but you're talking about taking offenses, like we say in our brief, where someone pledges a -- a cow for collateral for a loan and then they talk with a friend about whether or not they should sell the cow, and they decide not to sell the cow. Under the Government's theory, they couldn't be prosecuted for defrauding the Government because, in fact, they never sold the cow. They couldn't be prosecuted for conspiracy to defraud the Government because they didn't commit an overt act in furtherance of defrauding the Government. They couldn't be convicted or prosecuted for money laundering because they never sold the cow, so there were never any proceeds to generate. But they could be convicted, under the Government's theory, of conspiracy to commit money laundering based on the sale of a cow and their sentence would increase from a potential 5 years to a potential 20 years. There's absolutely no indication in the Congressional Record that Congress ever intended such dramatic triggering of substantially higher penalties without the commission of an overt act, which is not difficult to prove.
03-1293 +++$+++ 3065 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The Government has said that -- that you have essentially waived their sentencing guidelines issue that you asked us in footnote 6 of your brief to consider.
03-1293 +++$+++ 3066 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the district court, there were issues raised as to all defendants as far as various sentencing enhancements. In front of the Eleventh Circuit, one of those enhancements was argued and it was rejected. As to Mr. Hall, one of the sentencing enhancements were argued and was reversed on that sentencing enhancement. But there is still a sentencing enhancement that was raised in the Eleventh Circuit, but it was not raised in this petition. It was not the issue that this Court granted cert on, but we would argue that it's still a valid -- a valid claim and that this Court should hold this decision in abeyance until its decision in Booker and Fanfan.
03-1293 +++$+++ 3067 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was the argument below that -- -- that imposing the sentencing enhancement was unconstitutional, or was the argument just that the facts didn't support it?
03-1293 +++$+++ 3068 +++$+++ TRUE +++$+++ MS. SAMEK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The argument was that the facts didn't support it. Finally, Your Honor, we would -- Your Honors, we would just again say that Congress did not intend to cause a dramatic change in the way money laundering conspiracies were prosecuted. This Court has said in other cases that when Congress intends dramatic changes, that you would expect to find something in the legislative history. The Court has said that in the Lewis case having to do with interstate gambling and -- I see my time is up. Thank you.
03-1293 +++$+++ 3069 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you very much. The case is submitted.
03-1388 +++$+++ 3073 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll now hear argument in Spector against the Norwegian Cruise Line. Mr. Goldstein.
03-1388 +++$+++ 3075 +++$+++ FALSE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: The petitioners in this case are American citizens who took cruises to and from this country on tickets bought here that call for the application of U.S. law. They were subject to discrimination by respondent, a U.S.-based company on the land, in the ports, and in the waters of the United States. The question presented is whether the Americans With Disabilities Act applies or instead whether respondent's conduct is lawful because the case is controlled by Bahamian law, which freely permits cruise lines to discriminate against persons with disabilities.
03-1388 +++$+++ 3076 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Goldstein, may I inquire of you whether other countries, for instance, in the EU area, have applied their own disability laws to some of the cruise ships that touch base in their courts?
03-1388 +++$+++ 3077 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice O'Connor, our research does not reveal that the question has arisen in the EU. I can, however, provide you some information, and that is that -- two points I think. The first is they subscribe -- the members of the EU subscribe to the same conventions and to UNCLOS just the way we do, which gives the port state plenary authority within its ports and internal waters. And I have a couple of case citations for you on this issue. In the ECJ, the Diva Navigation case, 1992, ECR I-6019, and the Mateo Peralta case, 1994, ECR I-3453. It has not arisen in the EU, but it has arisen in Australia. Australia has a disability law. It applies that law to cruise ships, and the rule in Australia is that the port state law applies rather than the flag state law. And the citation for that is the Union Shipping case, 2002, NSWCA 124 CA 40379/01. I don't know what those numbers mean.
03-1388 +++$+++ 3078 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you. And would you also address at some point how the treaty on Safety of Life at Sea would affect the resolution here? For example, it has, as I understand it, requirements that there be watertight doors and those doors have to be set above the level of the floor so you couldn't roll a handicapped wheelchair or something over it. Now, do you anticipate that there would have to be structural changes if you were to prevail that would conflict with the treaty on Safety of Life at Sea?
03-1388 +++$+++ 3079 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, and you have put your finger on the point, and that is that there are no conflicts. We know that for a couple of reasons. The first is that there has been a detailed rulemaking underway in which the regulatory authorities charged by Congress with implementing the ADA have spent quite some time. They have produced this single-spaced, half-inch thick document that is dedicated to making --
03-1388 +++$+++ 3080 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are they in effect yet?
03-1388 +++$+++ 3081 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They are not, but in terms of whether or not the statute, when it's applied, would conflict, you would look to this document and they took as their regulatory mission to make sure there were no such conflicts. What they did -- let me take your example specifically and then put -- place it within the statutory framework. Within the ADA and a question of the combings, what they said is, that's right. In certain cases SOLAS requires that the coamings be a certain height. If the coamings are below the bulkhead level, where you would be worried about water coming in below, that is not an accessible route, and so you don't have to worry about it at all. Above there, you ramp up to the coaming and ramp down, unless that's structurally infeasible. So they -- what they did is they -- and this is the broader point. they applied the rule of the ADA that a change to the structure of the vessel only has to be implemented if it's readily achievable. And what the regulatory authorities determined is that if there is any conflict with SOLAS at all, that change need not be made. Now, you -- Justice O'Connor, you also focused on the fact that there are some of our claims that implicate the structure of the ship. They are, however, a distinct minority, and we ought not lose sight of this because I don't think the other side has any good argument at all, under international law or anything else, that would explain why they can charge a person with a disability double.
03-1388 +++$+++ 3082 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can you tell me just a little bit about that, how it works? Suppose that you prevail in this case -- and it does seem to me that the -- the charging the double doesn't involve modification of the ship, obviously. How does it work if you have, oh, say, an English passenger who buys an English ticket and is charged double -- I don't know if that's the English law, but let's assume -- then he comes on a cruise ship and he goes to New York and Miami and -- and New Orleans? Can he -- does he -- could he then sue, if -- if we rule for you in this case?
03-1388 +++$+++ 3083 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would think on the question of the charging double, the answer to that question would be no because it would present a traditional, not unique to the ADA, choice-of-law question, and that is, if you're in England and you buy a ticket in England, your ticket is going to be subject to English common -- in that case, the English disability law. There is an English disability law. It doesn't discuss cruise ships. It's -- but it's broadly written. But with respect to the structure of the ship, I think that English passenger with a disability -- say that you come across to the United States and you want to get off in New York. I think that Congress clearly intended that that person would be able to come off a -- off the dock in a wheelchair, back onto the dock on the wheelchair; while you were in U.S. ports and you're staying in your cabin, that you would be able to, in your accessible -- your accessible rest room, have grab bars. We are -- and -- and let me not pass too quickly by the fact that even when we talk about some structural changes in the ship, by and large we're talking about things that have nothing to do with -- Justice O'Connor, you focused the name of the treaty is the Safety of Life at Sea. Whether the bathroom doors swing in and out has nothing to do with that. Whether there is --
03-1388 +++$+++ 3084 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Goldstein, may -- may I take it from your answer that it doesn't make any difference in your view, your answer to the question about the -- the ship leaving from a port in England and going many places and touching base in New York, that kind of a voyage, or what this case seems to be where the vast majority of the passengers are from the United States, the port of departure is in the United States, the port of return is in the United States. You don't seem to distinguish those cases because you say in the New York port, it doesn't matter if it's really a U.S.-centered cruise or a cruise centered in Italy or any place else. Is that correct?
03-1388 +++$+++ 3085 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think your formulation is exactly right, Justice Ginsburg. It doesn't matter to us where the cruise is centered. We do, however, and this Court's precedents do, however, leave room for a highly unusual cruise that I'm not aware exists. Take, for example, a situation in which a cruise comes from England to the United States. It doesn't pick up any passengers here. They just visit. They stop in 15 other countries. They stop here. The same passengers get up on the ship and leave. This Court's precedents involving maritime choice of law leave room for the conclusion that says, look, we just don't think --
03-1388 +++$+++ 3086 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if we go back to what is the more usual situation --
03-1388 +++$+++ 3087 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-1388 +++$+++ 3088 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then you are, in effect, saying that the U.S. rules the world. Even if the home port, the place where this vessel is usually berthed, says we -- we don't require our ships to take care of the handicapped, you are, in effect, saying no matter what the other ports say, what the U.S. law is is going to govern because practically if you're going to design the ship to meet the U.S. requirements, you're not going to rip those out when the ship goes elsewhere.
03-1388 +++$+++ 3089 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, we disagree with the characterization that the U.S. rules the world, of course. We're talking about the fact that Congress exercised its sovereign authority to control vessels in its ports and internal waters, just as in -- take the Cunard example. In the Cunard case, there were countries -- and I understand it didn't involve the structure of the ship, but the principle is the same. There were countries that required alcoholic beverages to be on those vessels, and --
03-1388 +++$+++ 3090 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We -- we could -- we could require ships that are docked in the United States to pay their crews according to United States Jones Act requirements or United States minimum wage laws and so forth. We don't do that. We could do it, but we don't because it conflicts with -- with the law of the flag and -- and that's the usual -- it's not a matter of our power to do it. We could do it, of course, but it's just not something we ordinarily do.
03-1388 +++$+++ 3091 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia, I actually disagree with your characterization and would like to point you to a couple of precedents. The Benz and McCulloch cases, which are very important to the respondents, were very important to the Fifth Circuit, embody the principle that you just described, to some extent, and that is that when you have a foreign ship in our waters, we will not apply the NLRA to the labor contract between the foreign crew and the foreign vessel. But when Americans are involved, we do apply the NLRA, and that's the Ariadne precedent that the -- and -- and in fact, Ariadne is the most on-point case because it --
03-1388 +++$+++ 3092 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was -- was that the ship or was it longshoremen?
03-1388 +++$+++ 3093 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was longshoremen working on the ship complaining about safety conditions on the ship.
03-1388 +++$+++ 3094 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Longshoremen. Longshoremen based -- based on shore. Right?
03-1388 +++$+++ 3095 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Based on shore, but so are the passengers.
03-1388 +++$+++ 3096 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's a different --
03-1388 +++$+++ 3097 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it is a different situation, but I think it's more analogous. Not only were the -- the protests in Ariadne directed at the safety conditions on the foreign-flagged vessel, but they were directed at the passengers. If I could --
03-1388 +++$+++ 3098 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's -- what's the scope of what you're talking about here? I mean, are -- it says cruise ships. So I had assumed those are those big ships that carry people mostly around the Mediterranean from Florida. But based on what you're saying, now I think you're talking about something more. Are you talking, for example, about a merchant vessel that comes from, say, Saudi Arabia and has a few passengers? What's the -- what's the scope of the definition?
03-1388 +++$+++ 3099 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- well, that -- the definition -- we would have to return to the ADA. If a merchant ship has a few passengers, it would not be a specified form of public transportation or a public accommodation.
03-1388 +++$+++ 3100 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because? It -- what it does is it carries oil, but a certain number of people like to be on a ship with oil, I guess. And so every -- every month they take 12 people and they put them in a cabin somewhere and they love it.
03-1388 +++$+++ 3101 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's cheaper. It's cheaper too. (Laughter.)
03-1388 +++$+++ 3102 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not aware of -- of --
03-1388 +++$+++ 3103 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, no. I -- but all right. Now, I'm -- I'm being facetious.
03-1388 +++$+++ 3104 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-1388 +++$+++ 3105 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I am aware of -- of people who have certainly gone on cruises on what is a primarily merchant ship. Now that -- that I think is a common thing.
03-1388 +++$+++ 3106 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If -- let me --
03-1388 +++$+++ 3107 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you talking -- because I think that makes a difference for the reason that once you talk about those, you're talking about primarily foreign-flagged vessels that are rarely but sometimes in the United States where the costs would be very high probably to change the ship and the benefit to Americans would be tiny. All right. So I -- I want to know what you're talking about.
03-1388 +++$+++ 3108 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay. Let me first say -- and just to -- to lock the point down in that cost is accounted for in the definition of what is readily achievable. But let's go to the definition of specified public transportation because this will tell us what's going to be covered by the ADA. And just for the transcript, the citation is -- this is section 12181(110). It's -- it's very short, but it's at the middle of page 12 of the blue brief. Specified public transportation means transportation by bus, rail, or any other conveyance other than by aircraft, which has its own statute, that provides the general public with general or special service on a regular and continuing basis. That too would be covered. And only the public places on the ship would be covered by it. Can I just return briefly to my Ariadne point? Because I just wanted -- that's a case where the -- the NLRA was applied. And let me just read to you what the protest was that the NLRA was applied to because it fits perfectly with this case. And again, for the transcript, this is in the lower court opinion at 215 So.2d 53. This was the handbill. Warning. Is your cruise ship a floating death trap? Can a substandard foreign-flagged cruise ship turn your holiday into a Holocaust? They were very illiterate. If thousands of unsuspecting Americans continue to place their lives in jeopardy every day on cruises aboard foreign-flagged floating fire traps. And that -- that was a foreign-flagged ship. They we're concerned about the passengers. Justice Scalia, you also gave the example of the Jones Act, but remember that the Rhoditis case and the Uravic case, which involved injuries in the United States, then the Jones Act did apply. And that was -- and Rhoditis was a case in which someone was on the ship and a chain broke and they were injured as a result of it, and U.S. law applied. This is a situation in which millions of people in the United States are spending billions of dollars on cruises, and it seems --
03-1388 +++$+++ 3109 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but I -- if I understand you correctly, your case really isn't limited to cruise ships. It's limited to ships that come into -- passenger ships, which would include the Queen Mary and Queen Elizabeth, all the rest of them. Wouldn't it?
03-1388 +++$+++ 3110 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but I -- I take it that the -- you know --
03-1388 +++$+++ 3111 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the fact that it's based in Miami or it had mostly American customers really is not relevant to the legal issue. Is it?
03-1388 +++$+++ 3112 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it is in the sense that it makes this the recurring scenario that Congress would have been aware of when it enacted the ADA in --
03-1388 +++$+++ 3113 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, of course, they would have been aware of those that are also less American in their patronage and so forth.
03-1388 +++$+++ 3114 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true. In the very rare case, which I am not aware of, in which a cruise ship comes to the United States, doesn't pick up passengers, then it's possible that the -- that the ADA would not apply.
03-1388 +++$+++ 3115 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but we're not necessarily thinking of a cruise ship, just the transatlantic liner that goes from Liverpool to Miami or something. That would be covered.
03-1388 +++$+++ 3116 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would in -- in U.S. territory. That's right.
03-1388 +++$+++ 3117 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there's no way they can change the ship structurally when it's in New York and not have it changed structurally when it's in Europe. So the mystery to me at this moment is what is the universe of ships that I would not say fit the ordinary word cruise. What they are are ships that go between Asia and San Francisco, Los Angeles, or New York and Europe, or maybe through the Suez Canal. They're only here a little bit of the time. Their passengers are mostly not American. Now, is that something I should worry about? If that were your case, I would be very worried. If that's just a little bit of -- of added significance, then I want to know what to do about it.
03-1388 +++$+++ 3118 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Let me tell you what I know, and that is that the other side has not identified any problems of this -- this type. My research has not revealed some situation where we have a lot of these ships. I did carefully study the -- the itineraries of the major cruise lines, and 95 percent-plus of all of their trips go out from the United States and come back to the United States.
03-1388 +++$+++ 3119 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you told me -- and I want to make sure this is your answer -- that it doesn't matter, that as long as the ship comes to a U.S. port as part of this overall journey, you -- you answered that question and I thought that was your candid answer, that it doesn't matter that these -- these particular cruise ships ply mostly U.S. waters and U.S. trade and are centered, even have their principal place of business in the United States. You're not concentrating on that category. You are saying that the ADA applies so long as the ship puts in at -- at a U.S. port, picks up passengers. It applies not only while it's in the port, but practically for every other place the ship goes. That's why I asked isn't this the United States rules the world on what -- your argument you made.
03-1388 +++$+++ 3120 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, here I think is the difference, and that is, that while U.S. law may have an extraterritorial consequence, just like our maritime tort law and the like, you cannot in Europe enforce the ADA. The fact that the structural changes --
03-1388 +++$+++ 3121 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you can enforce the -- the discrimination provisions, but the structural provisions don't have to be enforced. Once the step is changed, they're not going to change it when they get 3 miles out.
03-1388 +++$+++ 3122 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. But Justice -- Justice Ginsburg's point -- I take it to be a more particular one. It's true that our law will have consequences abroad, but it is not the case that the U.S. rules the world.
03-1388 +++$+++ 3123 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it rules the world unless the world does not want to use the United States ports as ports of call.
03-1388 +++$+++ 3124 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice -- Justice Souter, I -- I simply disagree, and that is, when you talk about the U.S. ruling the world, in a -- in the context, say, of ARAMCO, we talked about the enforceability of U.S. law abroad. When the United States has tort standards or vehicle manufacturing standards and the like, all of those have consequences abroad for how devices are made and brought into the country. But that doesn't mean that -- what's going on is the plenary authority of the United States to enforce its laws in its ports and in its internal waters. That very rule always will have extraterritorial consequences.
03-1388 +++$+++ 3125 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We're not questioning the authority. We're questioning whether Congress intended that to be the case. We have a rule that -- that requires a clear statement when it has effects of this sort.
03-1388 +++$+++ 3126 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, we disagree, and let me just take you to your cases. I did that, I think, in the Jones Act and the NLRA context. But let's just state the rule, and that is, from the Wildenhus's Case and that's at page 12. Foreign law governs matters of discipline and all things done on board which affected only the vessel and those belonging to her and did not involve the peace or dignity of the country or the tranquility of the port. And what we're talking --
03-1388 +++$+++ 3127 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, Mr. Goldstein, there's another aspect that troubles me. Your view, as I understand, only applies while the ship is in American waters so that if, for example, you complain about the training for a safety drill, if they conducted those after they'd gone out 20 miles to sea, there would be -- there would be no violation of the -- the statue. Would there?
03-1388 +++$+++ 3128 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is -- that is a difficult question. We have not -- we have not pleaded such a claim.
03-1388 +++$+++ 3129 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In other words, I'm trying to understand. You don't know what your position is --
03-1388 +++$+++ 3130 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
03-1388 +++$+++ 3131 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- with respect to what would otherwise be violations of the statute that occur on the high seas.
03-1388 +++$+++ 3132 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We do believe it would be covered because the accommodation was purchased here, although we haven't raised the claim in this Court. If I could reserve the remainder --
03-1388 +++$+++ 3133 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but I think we should -- the cruise ships are entitled to know whether they may freely discriminate against people in the casinos and so forth when they're on the high seas.
03-1388 +++$+++ 3134 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We --
03-1388 +++$+++ 3135 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You don't know the answer to that.
03-1388 +++$+++ 3136 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, our position is that because of the definition of commerce in the ADA, when you purchase a public accommodation in the United States, that is an agreement to provide a public accommodation and it doesn't --
03-1388 +++$+++ 3137 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So your view is not limited to what happens in the territorial waters.
03-1388 +++$+++ 3138 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is right, although we have -- we would win the case on the internal waters and the territorial waters, and we haven't asserted in this Court a claim relating to the high seas. If I could reserve the remainder of my time.
03-1388 +++$+++ 3139 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Salmons, may I ask before you begin whether the United States agrees that the statute would apply to the activities of these ships when they're on the high seas?
03-1388 +++$+++ 3141 +++$+++ FALSE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: We do not think that title III of the ADA was intended to apply extraterritorially. That said, we think there is a question that would need to be resolved as to whether applying the ADA to a public accommodation that was entered into in the United States, that began in the United States, a necessary term of which we believe would be nondiscrimination, would in fact be an extraterritorial application of U.S. law.
03-1388 +++$+++ 3142 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ When -- when the ship is out on the high seas?
03-1388 +++$+++ 3143 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Justice Scalia.
03-1388 +++$+++ 3144 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You think that's a hard question --
03-1388 +++$+++ 3145 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. We think the better view --
03-1388 +++$+++ 3146 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- whether that's an extraterritorial application of U.S. law?
03-1388 +++$+++ 3147 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. We think the better view, in fact, Justice Scalia, is that that would not be an extraterritorial application of U.S. law. But if the Court were to disagree, then we would say title III does not apply at that time.
03-1388 +++$+++ 3148 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you --
03-1388 +++$+++ 3149 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't know what extraterritorial application means if it doesn't mean that, that a ship that is not in the United States is bound by United States law. What -- why isn't that extraterritorial application?
03-1388 +++$+++ 3150 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The reason, Justice Scalia, would be because the accommodation that was offered, that was entered into, and that began in the United States -- and -- and I would point out -- I think this is important to keep in mind --
03-1388 +++$+++ 3151 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What you're saying is it would -- I thought you were saying that it would be the enforcement of the domestic contract of which the -- the statutory provisions would be an implied term. Isn't that it?
03-1388 +++$+++ 3152 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes, that's correct.
03-1388 +++$+++ 3153 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It does not apply of its own force. It applies because two parties in the United States contracted that it would apply. Is that it?
03-1388 +++$+++ 3154 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. Now -- now, I -- I would just add that I think it -- you could characterize a public accommodation, you know, five nights lodging, for example. If that's entered into in the United States and -- and that begins in the United States, that a necessary term of that is nondiscrimination, and --
03-1388 +++$+++ 3155 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, then if you --
03-1388 +++$+++ 3156 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- if you have an ADA claim that governs that even if the discrimination occurred abroad, that would only relate to those things tied into the accommodation.
03-1388 +++$+++ 3157 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if you're on a round trip ticket from Liverpool to Miami and back, it would depend on where you bought the ticket.
03-1388 +++$+++ 3158 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, again, we -- we think that if accommodation begins here in the United States, that -- that a necessary term of that is nondiscrimination. Now, whether you characterize that as a contract claim or as a substantive application of the ADA, I'm not sure there's much of a difference.
03-1388 +++$+++ 3159 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but Justice Stevens' question is you buy the ticket in Liverpool. Is the ADA -- an -- an American buys the ticket in Liverpool to come to the United States.
03-1388 +++$+++ 3160 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To come to the United States.
03-1388 +++$+++ 3161 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is the ADA an applied term of that contract?
03-1388 +++$+++ 3162 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would -- I would assume not, although the question then would be whether or not it's a public accommodation that's been offered in the United States.
03-1388 +++$+++ 3163 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Don't -- don't all --
03-1388 +++$+++ 3164 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Even in U.S. waters? That wouldn't make sense. An American buys a ticket in -- in Liverpool. He's disabled. He goes to New York, Miami, New Orleans, and he's discriminated at -- at each step. No -- no coverage just because of where he bought the ticket?
03-1388 +++$+++ 3165 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, no, Justice Kennedy, that's not our position. Let me -- let me try and be clear. We think that any vessel that comes into the internal waters and ports of the United States and offers a public accommodation or a specified public transportation service to our residents is subject to the ADA.
03-1388 +++$+++ 3166 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you --
03-1388 +++$+++ 3167 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that means --
03-1388 +++$+++ 3168 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If -- if you had a situation -- I'm sorry.
03-1388 +++$+++ 3169 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, go ahead.
03-1388 +++$+++ 3170 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If you had a situation where you had a ship that -- let's say, that began in -- in Great Britain and came here, it didn't pick up passengers here in the United States, I think that the better view would be, sure, United States law could apply to it because it's in our internal waters, but that as a substantive matter, with regard to the ADA, I don't know why that would be a public accommodation within the meaning of the ADA because it's not an accommodation that's offered --
03-1388 +++$+++ 3171 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But do you --
03-1388 +++$+++ 3172 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- or available to United States residents.
03-1388 +++$+++ 3173 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you agree with Mr. Goldstein that nothing turns on -- one might characterize this kind of cruise as U.S.-centered, but his answer was as long as they put in, a regular cruise stop, they pick up, they unload passengers, they take them back again on the ship, so long as they touch base at a U.S. port, letting off and picking up passengers, the ADA applies? Do you agree with that interpretation?
03-1388 +++$+++ 3174 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As I understand what Your Honor just said, I think that I would. Let me just clarify, though. We think the relevant question is whether that ship would -- has offered a public accommodation or a specified public transportation service --
03-1388 +++$+++ 3175 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This is my --
03-1388 +++$+++ 3176 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in the United States, and if the answer is yes --
03-1388 +++$+++ 3177 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let -- let me ask you the same question that I asked Mr. Goldstein. Even in the Cunard case, the prohibition case, they couldn't have liquor in the U.S. port, but when they leave and they go to Jamaica, they could pick up rum there. They could have liquor all the rest of the time so long as, when they enter and leave the U.S. port, they didn't have the liquor aboard. Here what you're saying is what goes in the -- for the New York port goes for every other place where this ship puts in.
03-1388 +++$+++ 3178 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, again, I -- not as a matter of -- not as a matter of extraterritorial application of U.S. law, but that is our position with regard to a public accommodation that begins in the United States. I -- I think the -- the important --
03-1388 +++$+++ 3179 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose it doesn't begin in the United States in that it -- it starts in, say, The Bahamas, and stops at --
03-1388 +++$+++ 3180 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I should probably should not have said begin, Your Honor. What I mean is if it -- if the public accommodation is provided for in the United States, that would be covered by the terms of the ADA, we think the ADA applies.
03-1388 +++$+++ 3181 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then you're saying exactly what everybody is worried about. I take it there is no way really for a ship to -- they either have the right door or they don't have the right door. And we're interested in the set of cases in which they're going to have to change their doors. And what I came in here thinking was we're talking about ships that pick up people and sail in Florida and sail around the Caribbean. That's the -- now, I've heard nothing but we're not talking just about those. We are talking about ships like I'm the last human being alive that went on a Swiss ship to Europe. Okay? (Laughter.)
03-1388 +++$+++ 3182 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ 50 years ago. And -- and we're talking about those ships, or we're talking about merchant ships that also say to the public, come as a passenger. Now, I would like to -- not what you're arguing. You're going to say, yes, we are arguing it. I want to know -- say something to relieve my concern about that set, which was Justice Ginsburg's concern. We are trying to rule the world in respect to those ships that only come here occasionally or it isn't a big part of their business, but they want to come to pick up American passengers.
03-1388 +++$+++ 3183 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure. Sure. And what I would say with regard to that is that you're right that our broad view is that the ADA applies if that -- if they're offering public accommodation here in the United States. But if you reject that, I think there are several ways you could approach that. One would be to apply traditional choice-of-law factors that are -- that are applicable in maritime, and you could conclude, you know, based on sort of whether or not there are sufficient contacts here and whether or not --
03-1388 +++$+++ 3184 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you're saying that this is your position, but don't worry about it because we'll reject your position?
03-1388 +++$+++ 3185 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, no. He asked me to say something that -- that would -- would help his concerns. What I'm trying to say --
03-1388 +++$+++ 3186 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ One thing might be true, what you're not saying, is there really aren't very many of those ships, or another thing you might say, which you're not saying because maybe isn't true, is almost all of those ships that there are are already subject to tougher -- tougher rules, say, in Europe. But you don't say either of those.
03-1388 +++$+++ 3187 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. No --
03-1388 +++$+++ 3188 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Since you don't you say either of those, I think neither may be true.
03-1388 +++$+++ 3189 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't know the specific number. I would think that there are not many that the -- that this -- what you're concerned with primarily here are cruise ships that are in the business of providing public accommodations. But I would add as well -- and I think this is very important that the Court keep in mind -- that the clear statement rule, as it's -- as it's posited by respondent here, would not just apply to the ADA. It would apply to all U.S. laws, and that would include title II of the Civil Rights Act of 1964 in its prohibition of racial discrimination, and I would find that that would be a remarkable construction.
03-1388 +++$+++ 3190 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It depends on what -- what kind of laws you're talking about. Laws that require the crew to be treated differently are -- are quite different from law -- laws that -- that require a passenger to be treated a certain way in the United States.
03-1388 +++$+++ 3191 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, you're correct, and that's precisely why they have --
03-1388 +++$+++ 3192 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And laws -- laws that require structural alteration of a ship are quite different from laws that say while you're in United States waters, you won't discriminate on the basis of race.
03-1388 +++$+++ 3193 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If -- two -- two responses, if I may, Your Honor. And that is, if you -- if that is the conclusion you reach, then you still need to remand this case because there are an awful number of claims that are precisely those kinds of claims that the Fifth Circuit would not allow. Secondly, I think you're wrong with regard to the scope of the clear statement requirement. There is no requirement that you have to have a clear statement to apply a U.S. law to a foreign vessel. There is only a requirement that you need a clear statement if the conduct at issue would relate only to the internal matters of that vessel. And here you're dealing with public accommodation --
03-1388 +++$+++ 3194 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If we haven't expressed it yet, we ought to express it then.
03-1388 +++$+++ 3195 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I disagree, Your Honor. And what I would point you to is -- is that the long -- every time this Court has spoken with regard to the clear statement requirement relating to foreign-flagged ships, it has referred to the internal order doctrine. And that is embodied in a number of bilateral agreements that go back for centuries. The -- the treaty that was at issue in the Wildenhus's Case expressly said that if the -- if the conduct did not relate to members of the crew but to passengers or other members of the port state or otherwise affected the interests of the port state, that the port state law would apply. And that is the general rule. The international regime that governs this area by its terms provide minimum standards and leaves it available to port states and to flag states to add additional requirements. That would mean --
03-1388 +++$+++ 3196 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Salmons, one of the alternatives you threw out, not as a response to clear statement, but as a -- a response to the issue that was being raised by it, was the provision of the statute that it was intended to exercise the -- the fullest extent of the -- of the commerce power. And The -- The Bahamas respond to that by saying you could have said exactly -- or argued exactly the same thing in McCulloch. What is your response to that?
03-1388 +++$+++ 3197 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I would disagree with that on -- on a couple of respects. The first is that the definition of commerce here is broader than it was and specifically refers to travel between the United States and foreign countries. The only other statute we're aware of that says that is title II of the Civil Rights Act of 1964. In addition --
03-1388 +++$+++ 3198 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, may I just ask you a -- a factual question? I didn't go back to the text to check this. Does the text of this statute say in these words basically we are exercising the fullest possible extent of the commerce power?
03-1388 +++$+++ 3199 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Justice Souter. What -- what the text of the statute says --
03-1388 +++$+++ 3200 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it's not in McCulloch.
03-1388 +++$+++ 3201 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. What the text of this statute says is that -- in fact, this is the definition of commerce that relates only to title III of ADA. And it says precisely that it includes travel between foreign countries and the United States and that Congress was intending to -- to reach the full sweep of its -- its constitutional authority.
03-1388 +++$+++ 3202 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Salmons. Mr. Frederick.
03-1388 +++$+++ 3204 +++$+++ FALSE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Stevens, and may it please the Court: This case is about congressional intent not congressional power. Congress undoubtedly has the power --
03-1388 +++$+++ 3205 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Could you address the last point?
03-1388 +++$+++ 3206 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. It was not the fullest extent of the commerce power. That statute was at issue in this Court's case concerning the Lanham Act where the Court said that a violation of the Lanham Act that occurred in Mexico but had an effect in the United States was intended to be covered by Congress because that commerce clause, Justice Souter, did state to the fullest extent of Congress' power under the Commerce Clause of the Constitution. This statute does not say that. This statute talks about commerce in and between States and territories, and it is much closer to the statute language that this Court addressed in the ARAMCO case where --
03-1388 +++$+++ 3207 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it -- it doesn't have the fullest extent language then.
03-1388 +++$+++ 3208 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. That's correct.
03-1388 +++$+++ 3209 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How does it compare to title II of the Civil Rights Act of 1964?
03-1388 +++$+++ 3210 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there are slight differences in the language, but I don't think that's dispositive because title VII of the Civil Rights Act, which this Court addressed in the ARAMCO case, the Court -- the Chief Justice's opinion there said that that language was not enough to express the intent.
03-1388 +++$+++ 3211 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So that would be the same for title II, which is the public accommodations part of the Civil Rights Act of 1964. So I take it that you are saying that on these foreign-flagged vessels, just as the ADA would be inapplicable, so title II, the public accommodations part of the Civil Rights Act of 1964, would be inapplicable.
03-1388 +++$+++ 3212 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's all a question of congressional intent, Justice Ginsburg, and there's no indication of an intent that Congress needed to address any problem that arose with respect to that form of discrimination.
03-1388 +++$+++ 3213 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So your -- but your answer is, there being no such indication, that a ship putting in at a U.S. port was free to discriminate among its passengers on the basis of race.
03-1388 +++$+++ 3214 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there would be no U.S. congressional statute that would address that, Justice Ginsburg. There would be a violation of the Bahamian constitution which prohibits --
03-1388 +++$+++ 3215 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm asking about the U.S. law and policy which says no segregation, no discrimination in places of public accommodation.
03-1388 +++$+++ 3216 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As I said, I'm not aware that there has ever been an instance of that in the cruise industry. Congress has not addressed that. We're talking about foreign ships here. And I want to get back to the structural features of the ship because the ADA fundamentally --
03-1388 +++$+++ 3217 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, but this is a good question, and what is your position? That the ship could engage in racial discrimination while in U.S. ports on the selling of tickets and the provision of accommodations while in U.S. ports and within the 3 --
03-1388 +++$+++ 3218 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice O'Connor, our position is that Congress has not spoken to the question, and so there is no congressional statute that is on point.
03-1388 +++$+++ 3219 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then your answer, I take it, is yes, it can discriminate and it can discriminate because Congress has not told it not to. Is that it?
03-1388 +++$+++ 3220 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. No. Our position is that it can't discriminate because a different law proscribes that --
03-1388 +++$+++ 3221 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So far as United States law is concerned, it could.
03-1388 +++$+++ 3222 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1388 +++$+++ 3223 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the same answer for 1981?
03-1388 +++$+++ 3224 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, as I said, Congress has not extended its laws to the full reach of U.S. territorial power, and this Court has maintained that position ever since the Charming Betsy case 200 years ago, The Schooner Exchange case, and Brown v. Duchesne.
03-1388 +++$+++ 3225 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let's put it this way. So my understanding of your answer is that we could write an opinion ruling for you but leaving these other questions open? I don't see how we can do that.
03-1388 +++$+++ 3226 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What you say, Justice Kennedy, is that the clear statement canon requires Congress to say when it intends to apply a law to a foreign vessel. Congress didn't do that.
03-1388 +++$+++ 3227 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if I'm writing the opinion and I put that down and rule for you, it seems to me that I then answered necessarily Justice Ginsburg's question in the negative.
03-1388 +++$+++ 3228 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You do, Justice Kennedy. And just as this Court in the ARAMCO case said that title VII doesn't apply to the foreign -- work in a foreign land by an American company of an American --
03-1388 +++$+++ 3229 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But these --
03-1388 +++$+++ 3230 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, Congress hasn't extended criminal laws of the United States to the full reach of U.S. power. It is only proscribed 15 offenses that will apply in the special maritime jurisdiction.
03-1388 +++$+++ 3231 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Frederick, this is -- this is what concerns me about your answer. I know that Mr. Goldstein took the position that it doesn't matter what kind of operation this is, but the operation that we're dealing with, it sells tickets mainly to -- what percentage of its passengers are from the USA?
03-1388 +++$+++ 3232 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Approximately two-thirds to three-quarters in any given year.
03-1388 +++$+++ 3233 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And does it normally start the voyage and end it in U.S. ports?
03-1388 +++$+++ 3234 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The majority of them do.
03-1388 +++$+++ 3235 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And how much of its advertising budget is pitched at U.S. customers?
03-1388 +++$+++ 3236 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, there -- all of those questions are going to be answered as a predominant marketing effort, et cetera is directed to the U.S. market.
03-1388 +++$+++ 3237 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, this is the anomaly. You're asking us to buy an interpretation. An enterprise is U.S.-centered in terms of where it gets its business and that enterprise, nonetheless, is not bound by what is our bedrock anti-discrimination law both with regard to customers, passengers, and employment.
03-1388 +++$+++ 3238 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And the reason, Justice Ginsburg, is that that law imposes structural changes on vessels that go to other ports.
03-1388 +++$+++ 3239 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why don't you -- why don't you try to draw that line? Why don't you say that just as the applicability or not may depend upon whether you're dealing with a crew of a foreign ship or whether you're dealing with an American who happens to be injured on board that ship, so also it may depend upon whether the anti-discrimination law in question is one that at least in some of its applications requires structural changes or not? That would enable you to say the ADA doesn't apply, but would not compel you to say that title II doesn't apply.
03-1388 +++$+++ 3240 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We are talking --
03-1388 +++$+++ 3241 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You're not willing to take such a limited position.
03-1388 +++$+++ 3242 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Scalia, I think the Court could certainly carve out in its clear -- articulation of the clear statement principle some of these lines. It becomes very --
03-1388 +++$+++ 3243 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, the ADA itself makes an exception for things that aren't readily achievable. I mean, you could certainly lean on that because a structural change probably isn't readily achievable.
03-1388 +++$+++ 3244 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice O'Connor, Congress, when it talked about readily achievable, did so in terms of cost. It didn't do so in terms of conflict with the laws of other nations or --
03-1388 +++$+++ 3245 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there -- is there -- I mean, you're giving me the answer I thought the other side would give me. All right? And I appreciate it actually. (Laughter.)
03-1388 +++$+++ 3246 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You say that two-thirds of these people, the customers, are American. So we're dealing with a business that is primarily American, not a business like the Swiss ship except with the exceptional cases. Then you say, all right, still it's a problem because of structural changes we'll have to make. What changes? That is to say, I would have thought I could have read, but I haven't, that other countries like Europe also have discrimination laws against disabled people, and therefore, given that fact and given the document that Mr. Goldstein produced, it is highly unlikely that your clients will have to make any significant structural change that they wouldn't have had to make anyway.
03-1388 +++$+++ 3247 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
03-1388 +++$+++ 3248 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, what's the response to that?
03-1388 +++$+++ 3249 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's completely false. In -- in the year 2000, the United States Government issued a report that contained an extensive appendix, which we've cited in our brief, that details in laborious detail the conflicts between land-based ADA standards and SOLAS. Now, I can give you some specifics, if you would -- that are fairly practical, such as the ADA requires under the interpretation advanced by the petitioners that there be a disabled access cabin on every level of the ship, but SOLAS requires that passengers with disabilities be placed near evacuation points.
03-1388 +++$+++ 3250 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why -- why can't you just fight that battle by battle on what's reasonably achievable? Because in order to avoid that problem, what you're telling us is that a cruise line can charge a -- a disabled person double the price --
03-1388 +++$+++ 3251 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As a matter of fact --
03-1388 +++$+++ 3252 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- because they're a nuisance. And that's your position.
03-1388 +++$+++ 3253 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, as a matter of fact, we categorically deny the claims of discrimination here. We're having to fight this on the basis of assuming the -- the allegations are true, but they are categorically false. And --
03-1388 +++$+++ 3254 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it doesn't matter what you want to do as a matter of good will. The question is what the law requires you to do, and you're saying it's up to us, we govern. You're not governed by U.S. anti-discrimination law.
03-1388 +++$+++ 3255 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, what the other side wants is a case-by-case method of decision-making in which a district judge becomes the special master of the cruise industry so that each claim of discrimination that would require some modification to the ship --
03-1388 +++$+++ 3256 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That happens to every employer under -- in the United States under the reasonably achievable standard.
03-1388 +++$+++ 3257 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that's why, Justice Kennedy, it's a question of congressional intent. The very same Congress debated extensively about whether to impose design requirements on foreign ships in the Oil Pollution Act of 1990, and it decided to buck the international system knowingly by imposing a design requirement that double hulls be imposed on oil tankers, foreign oil tankers.
03-1388 +++$+++ 3258 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Frederick, that brings up a question I've been meaning to ask you. To what extent was this whole problem of the application of this statute to the foreign vessels discussed in the legislative history of these statutes?
03-1388 +++$+++ 3259 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Zero. There is not one word about vessel --
03-1388 +++$+++ 3260 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. If -- if that's so and if you look at the earlier cases -- but all I could get out it is that those earlier cases -- the Court tries to do what it really would have thought Congress would have intended in the circumstances. And if that's so, why wouldn't Congress really have intended that a business that's two-thirds American has to abide by American law?
03-1388 +++$+++ 3261 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because it was encroaching on an area of foreign sovereignty. Foreign ships are governed by foreign laws.
03-1388 +++$+++ 3262 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does -- does Britain -- or does Britain or does the European Union, for example, forbid you to charge this double price?
03-1388 +++$+++ 3263 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't --
03-1388 +++$+++ 3264 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does European law -- I'd be surprised if it doesn't forbid it, but do you know?
03-1388 +++$+++ 3265 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I don't know the answer to European law on charging of an additional price, but I would point out that pricing, like evacuation procedures, do go to the structure of the vessel. And we're talking here fundamentally in the ADA about structural changes that they want to impose that go -- when ships travel, they can't dismantle those structural changes when they leave U.S. waters.
03-1388 +++$+++ 3266 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. -- may I ask this question to you? What about a -- an American-flagged ship? Does the statute apply or not?
03-1388 +++$+++ 3267 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the Fifth Circuit reserved that question.
03-1388 +++$+++ 3268 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is your view?
03-1388 +++$+++ 3269 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our view is that there are arguments that can be made that it does not because Congress didn't --
03-1388 +++$+++ 3270 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is your view? Not what arguments can be made. What is your view?
03-1388 +++$+++ 3271 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think -- (Laughter.)
03-1388 +++$+++ 3272 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I think our view is that it doesn't.
03-1388 +++$+++ 3273 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It does not apply.
03-1388 +++$+++ 3274 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does not apply because Congress didn't express the intent.
03-1388 +++$+++ 3275 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So really, we're not concerned with the fact this is a foreign-flagged ship. You're concerned with the fact it's a ship.
03-1388 +++$+++ 3276 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- there's a difference and -- and there are about 1,000 U.S.-flagged ships that carry passengers, so that if Congress had given any thought to the question, it is reasonable to suppose it might have distinguished between U.S. ships for which U.S. law directly governs and foreign ships that are governed by a different law. The fact --
03-1388 +++$+++ 3277 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do we need -- do we need a clear statement for United States ships? I thought your case rested on a clear statement requirement. Is there any clear statement requirement for U.S. ships?
03-1388 +++$+++ 3278 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no, Justice Scalia.
03-1388 +++$+++ 3279 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So why -- why isn't there a clear difference between the two?
03-1388 +++$+++ 3280 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because there aren't any words in the statute that go to ships. The best they can do is a catchall phrase at the end of bus, rail, and any other means of conveyance.
03-1388 +++$+++ 3281 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, that's pretty good, isn't it?
03-1388 +++$+++ 3282 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's not -- (Laughter.)
03-1388 +++$+++ 3283 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If you don't require a clear statement, that's -- that's good enough, it seems to me.
03-1388 +++$+++ 3284 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1388 +++$+++ 3285 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Your -- your case hangs on the fact that, you know, when Congress wants to -- to rule the world and say all ships in the -- in the world that touch at our ports have to have this kind of a thing, it says so clearly. It doesn't have to say so with perfect clarity with respect to American ships.
03-1388 +++$+++ 3286 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect to foreign ships, there is a clear statement rule and that clear statement rule is embodied in the fact that a foreign ship is governed by the law of the flag state where it is registered. That's been the rule for 200 years. And the other side's position --
03-1388 +++$+++ 3287 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, is that limited, though, just to things that affect the internal order of the ship? Is that the context in which we've articulated that rule?
03-1388 +++$+++ 3288 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's been articulated in several different contexts. In the Brown v. Duchesne case, the Court 150 years ago articulated in a patent case where the Court said that a patented device on the ship, which was the French ship in Boston Harbor infringing an American patent-holder, would not apply U.S. patent law. And the Court said, because we can't conceive that Congress would have imagined this general language to encroach on the sovereignty of a foreign ship. Now, the other side has exactly two sentences to say about that case, but that is the case that is directly on point because that case says that when you are dealing with American laws that are generally written, you would not ordinarily apply them to a foreign ship unless Congress said so specifically.
03-1388 +++$+++ 3289 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but in that case, there was -- as I understand it, there was no legal relationship of any sort between the supplier of the patent-infringing object and the ship in the United States. So it at least made sense to classify that with internal order as opposed to external relationships arguably involving -- or implicating American law. You've got exactly the opposite situation here. You've got contracts made in the United States with the foreign cruise line. You didn't have that in your patent case.
03-1388 +++$+++ 3290 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Souter, you have a foreign ship owned by a foreign corporation built in a foreign country under foreign engineering standards --
03-1388 +++$+++ 3291 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ With its principal place of business in the United States.
03-1388 +++$+++ 3292 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For a time before that ship moves into another market.
03-1388 +++$+++ 3293 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But --
03-1388 +++$+++ 3294 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But its significant external -- its significant commercial relationships are in the United States with people in the United States performed partially in the United States.
03-1388 +++$+++ 3295 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In just the same way that McCulloch the Court said that labor standards for a course of business that is regular between Honduras and the United States is not going to be sufficient to apply --
03-1388 +++$+++ 3296 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The crew members were Honduran in that case.
03-1388 +++$+++ 3297 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They were.
03-1388 +++$+++ 3298 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This -- if you just look at it, suppose you were not a lawyer and you look at this operation. You'd say that's got USA written all over it. The passengers are from the USA. The company is centered in Florida. And then you have this flag of convenience that it flies which can legitimately govern the relationship with its crew. But to say that it governs the relationship with passengers, it seems to me very strange. And also the ticket says, passenger, if you're going to sue us, it's got to be in the United States and under U.S. law to boot.
03-1388 +++$+++ 3299 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But a choice-of-law clause, Justice Ginsburg, has never been held to incorporate law in the sense that laws that don't apply are going to be incorporated. I'm not aware of any choice-of-law clause that -- that simply takes in every domestic statute.
03-1388 +++$+++ 3300 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Just -- it's just one other indicia that one looks at this operation and says this belongs to the USA. A practical judgment, I think, would come down there.
03-1388 +++$+++ 3301 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and you would have -- under their theory, you would have the Consumer Products Safety Act, the Food and Drug Act, OSHA, all sorts of other statutes of general application that are now going to be imposed on foreign vessels simply because they do a lot of business in the United States. The problem here, as a matter of congressional intent, is we don't know what Congress thought about this, and because Congress --
03-1388 +++$+++ 3302 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, we -- we do -- we do have the rule if it -- if it applies to the internal operations of the ship, and so far as the crew is concerned, the Jones Act and OSHA, it seems to me, may well be governed by the law of the flag.
03-1388 +++$+++ 3303 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And the internal operations of the ship, Justice Kennedy, is part and parcel of how it is designed, what are the evacuation points, how are the cabins laid out, what ramps are placed where, how -- everything about the ship's design --
03-1388 +++$+++ 3304 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's a part of the case I'm not sure about, and it seems to me, again, it can be fought out under the reasonably achievable --
03-1388 +++$+++ 3305 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It doesn't -- Justice Kennedy, the problem with that theory is it just doesn't comport with the language of -- of the statute. Congress didn't think in terms of -- as it did in the Oil Pollution Act, it said, if there's a conflict with international law, work it out. Get the Coast Guard with the foreign nations and work out the conflict. It didn't put anything like that in this statute, which is a further indication that if Congress wants to extend this kind of disability protection, it can do that, but it ought to do so willingly. And the Government has had 13 years to come up with rules that would govern cruise ships, and the best they've done, a few days before the top-side briefs in this case were filed, is to issue proposed draft guidelines for ferries, not cruise ships. Most of the regulations that they are pointing to wouldn't have an application to a large passenger cruise ship. If Congress wants to change this, it certainly has the power, but this Court need not open up a Pandora's box of domestic legislation to apply to foreign ships where Congress has not expressed the intent to do that.
03-1388 +++$+++ 3306 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could you go back to Justice Breyer's question about the number of foreign ships? Once we get beyond cruise lines, does it -- would -- would the -- the application on your view cover the -- the dozen passengers who decide they want to take a trip on a -- on a cargo boat?
03-1388 +++$+++ 3307 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I don't perceive a limiting principle to the other side's position. In fact, there's an amicus brief written where there's only one or two stops in the United States a year, and under their view, that ship would be governed by the ADA as well. If -- if Congress wants to enact these limits, it's certainly free to do so, but this is a highly complex area and ships are different from land-based accommodations because you have to be able to evacuate people within 30 minutes. And so when we train people, we have --
03-1388 +++$+++ 3308 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But doesn't it -- on the other -- on the other side of the coin, apart from the structural problem -- and I understand the arguments on both sides there. With respect to things like safety drills and access to gambling tables and all that, it seems to me that your answer to that would be, well, we'll just do that once we're on the high seas so there's no conflict with the statute when we're out there.
03-1388 +++$+++ 3309 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As a matter of fact, Justice Stevens, we give evacuation drills to the disabled in a different way. We have special access and assistance squads that go to persons with physical challenges to get them off the vessel in an event of a -- a need for evacuation. That's a different procedure than most passengers, but it's -- it is one that is in place.
03-1388 +++$+++ 3310 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Frederick. Mr. Garre.
03-1388 +++$+++ 3312 +++$+++ FALSE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Stevens, and may it please the Court: Applying title III of the Americans With Disabilities Act to foreign-flagged vessels would invite precisely the sort of international discord, conflict, and confusion that Congress presumably seeks to avoid when it writes American laws.
03-1388 +++$+++ 3313 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you agree with Mr. Frederick's answer about title II of the Civil Rights Act of 1964? I mean, a lot of countries don't prohibit discrimination.
03-1388 +++$+++ 3314 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, first let me make clear that the Bahamian Government does and all of its cruise vessels are governed by that prohibition.
03-1388 +++$+++ 3315 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm asking about the application of U.S. law.
03-1388 +++$+++ 3316 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We think that that question can be resolved along the lines that Justice Scalia suggested, which is that when you're dealing with a matter that goes to the internal affairs of the ship -- and there -- we would suggest that there is more central to the internal affairs of the ship than its construction and design. Under international law, article 94 of the Law of -- Law of the Sea Convention, which the Bahamian Government has ratified -- and by the way, the United States has not, and that's an important principle for this Court to keep in mind -- foreign-flagged states may be bound by different international treaties than the United States. So simply trying to draw some conflict resolution device that would deal with treaties that the United States has entered into, international nations have not will not address that problem.
03-1388 +++$+++ 3317 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So before you go on to that, I want to be clear on your answer to title II of the Civil Rights Act of '64. There's -- you say, well, that's easier to comply with. But that's not the principle under which you're operating.
03-1388 +++$+++ 3318 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. With respect, Justice Ginsburg, our principle is that when it comes to the matters that under international law have been traditionally governed by the flag state, then when Congress writes its laws, we presume that unless Congress clearly indicates an affirmative intention to address those matters, it did not intend to. When Congress wrote the ADA, not a word of the statute indicates that it considered the international repercussions of applying that law to foreign-flagged vessels. Not a word --
03-1388 +++$+++ 3319 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about the -- what about the full sweep argument? Let's sort of come full circle on that. You -- you say the full sweep argument is no good because the same thing could have been made in McCulloch. The response was there is a textual difference --
03-1388 +++$+++ 3320 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What's -- what's the full sweep argument? I don't --
03-1388 +++$+++ 3321 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Full sweep of the commerce power.
03-1388 +++$+++ 3322 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, first of all, it's -- it -- the statute doesn't say full sweep. It says sweep, and that's in the findings of the ADA. It's reprinted on page 32 of petitioners' brief. And second of all, the definition of Congress, which doesn't contain that sweep language, is almost identical to the definition of commerce in McCulloch, which is on page 15, note 3 of that decision, and that definition, the United States argued in the McCulloch case, was not sufficient to extend U.S. labor laws to foreign-flagged vessels. It's important to understand the -- the potential international conflicts that extending the ADA to foreign-flagged vessels could create. There are more than 40 nations that have adopted anti-discrimination laws for the disabled. Three nations have -- have adopted laws for domestic vessels: Britain, Canada, and Australia. If a country like the United States extended its laws to foreign vessels that entered its ports, then other nations may well follow suit. And if you take a simple hypothetical example, the Queen Mary II traveling from South Hampton to New York, if you look at the guidelines that Britain has adopted for domestic vessels, those guidelines contain different structural and design requirements than the draft guidelines that the United States have promulgated. There are different requirements for door widths. There are different requirements for sloping. There's different requirements for the watertight compartments. There are different requirements about whether vessels have to be -- have accessible cabins all throughout the ship.
03-1388 +++$+++ 3323 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ When you say different, you mean you cannot comply with both.
03-1388 +++$+++ 3324 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1388 +++$+++ 3325 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that what you mean? Or -- or are those just minimums and -- and the United States would -- would comply with those minimums?
03-1388 +++$+++ 3326 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, I think in some you could and in others you couldn't. And -- and that's an important -- important point.
03-1388 +++$+++ 3327 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And incidentally just for the -- are -- this ship has -- these are regulations that help the disabled?
03-1388 +++$+++ 3328 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your -- yes, Your Honor. And -- and in many cases, it's not going to be clear which regulation is going to be more accommodating to the disabled and which is not.
03-1388 +++$+++ 3329 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could they work that out? That is, if two-thirds of our universe really is American-based, in terms of customers, and we're now only talking about conflicts in -- real conflicts that -- that affect, say, one-third of the universe, that's also true in areas like antitrust or others where the enforcement authorities get together and they try to write memoranda that -- that work this out in a reasonable way. Could -- could the same thing happen here if such real conflicts did emerge?
03-1388 +++$+++ 3330 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't think so, Justice Breyer.
03-1388 +++$+++ 3331 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because?
03-1388 +++$+++ 3332 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We would take the same approach that this Court emphasized in -- in the McCulloch case, which is that kind of ad hoc balancing analysis would wreak havoc for the question whether a significant regulation like the ADA would apply to a vessel. How would foreign vessels know, when they enter U.S. ports, whether they have to undertake the extraordinary changes --
03-1388 +++$+++ 3333 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The answer would be yes, you do. You do have to, and then if there's some other authority that wants to get involved in this, the two authorities would work it out.
03-1388 +++$+++ 3334 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, the way that those issues are worked out in the international shipping context is through the International Maritime Organization. This organization has been responsible for crafting scores of conventions, hundreds of shipping codes, and it's already begun to address the issue of accessibility on ships for the disabled and the elderly. We cite the 1996 guidelines in our brief. Those guidelines right now are -- are not binding guidelines, but they could well become binding guidelines. And when an organization like the IMO addresses this question, it resolves --
03-1388 +++$+++ 3335 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's perfect because then the Government says that once it becomes a matter of binding international rule, anything that conflicts with that will be viewed as not reasonably achievable. So all you have to do is that and then there's no longer a problem with American law, according to them.
03-1388 +++$+++ 3336 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we don't think the readily achievable language in the first case in any way contemplates conflicts with international law. This Court has a separate canon that's almost as old as the country that it presumes Congress doesn't intend to interfere with international obligations or international laws, including customary international law, as you wrote for the Court last term in -- in the Empagran case. We presume that American legislatures give respect to the interests of sovereign nations when they write their laws, and we don't assume that Congress intends to intrude on the sovereign interests of other nations. And that's what extending the ADA to foreign-flagged ships would do. The Bahamian Government has a solemn responsibility under international law and under its own law to govern the construction and design of all flags of all ships that fly -- fly its flags. Article 10 of the Geneva Convention on the High Seas recognizes that flag states have responsibility for the construction and design of ships. Article 94 of the Law of the Sea Conventions specifies that flag states have responsibility over administrative, technical, and labor matters, including construction and design matters. These are precisely the sorts of matters that for centuries the flag state has been responsible for. And in the Brown v. Duchesne case, this Court recognized that, a case that dealt with the application of patent laws to the construction and design of a foreign-flagged vessels. There are going to be conflicts within -- between international law and the requirements of the ADA, but first of all, there's going to be confusion. It's been more than a decade since the ADA was passed, and we don't even have final regulations as to what rules apply. And in the meantime, foreign-flagged vessels are going to have to be reviewing the case law in the United States courts, determining on a vessel-by-vessel, design specification-by-design specification as to what standards apply. That's only going to create additional international discord and confusion. Petitioners proposed solution to this problem we think is telling. They urge this Court in their reply brief if there is a problem after the ADA is extended to foreign-flagged ships and other nations begin to follow suit and you have a crazy made -- maze of different regulations applying to construction and design, then at that point, the United States can go to the IMO and ask it to clean up the mess. With respect, we think they have it backwards. The purpose of the IMO and the international framework that exists for governing regulation of shipping is to establish a uniform set of rules in the first instance. The IMO has already begun to address the problem at issue in this case, accessibility for the disabled. They are available to address that in a multilateral fashion. And Congress, in enacting the ADA, gave no indication that it weighed any of the international repercussions of the action that petitioners urges the case -- petitioners urge the Court to take in this case. And we would urge this Court to return this matter to Congress. Congress is in the position to weigh the risk of international confusion, to weigh the potential for international discord and to address those matters as it sees -- sees fit. If there are no further questions.
03-1388 +++$+++ 3337 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Garre. Mr. Goldstein, you have about 40 seconds.
03-1388 +++$+++ 3339 +++$+++ FALSE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer and Justice Ginsburg, our position is the one that can accommodate your concerns. Theirs cannot. Just like in Empagran, where this Court built in comity considerations, relying on cases like Lauritzen that involved foreign-flagged ships, it said, look, even if the text of the Sherman Act or the FTAIA could literally reach it, in these cases that we don't think Congress could have conceived of, we're not going to apply the statute. But here, we have a situation in which this company has 95 percent of its cruises going in and out from the United States. Millions of people, and billions of dollars in commerce are affected by this statute and Americans that Congress had to have in mind.
03-1388 +++$+++ 3340 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Goldstein. The case is submitted.
03-1395 +++$+++ 3344 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll now hear argument in the case of Tenet against John Doe. Mr. Clement.
03-1395 +++$+++ 3346 +++$+++ FALSE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: This case, like the Totten case almost 130 years ago, is at bottom an effort by alleged spies to obtain additional compensation for services rendered.
03-1395 +++$+++ 3347 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, do you take the position that the Federal Government couldn't enforce any provision of such an agreement either?
03-1395 +++$+++ 3348 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. That's correct, Justice O'Connor, with respect to the kind of espionage arrangements and contracts we're talking about.
03-1395 +++$+++ 3349 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, suppose -- suppose somebody, allegedly a former spy, is alleged to -- by the Government to have breached the agreement by writing and publishing a tell-all book about it.
03-1395 +++$+++ 3350 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice O'Connor, I think that actually points up the important differences between the way that the CIA deals with its employees and the way that it deals with its espionage agents like respondents are alleged to be.
03-1395 +++$+++ 3351 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, okay.
03-1395 +++$+++ 3352 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect to espionage agents --
03-1395 +++$+++ 3353 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would the Government be without any recourse if it was an alleged espionage agent?
03-1395 +++$+++ 3354 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that's true, Justice O'Connor, because the espionage agents do not sign prepublication review agreements. They do not receive formal security clearances the way that an employee does. And unlike an employee, they do not have access to a broad swath of classified information that raises attendant counterintelligence concerns. And so if you think about the course of dealing that the agency has with its employees, the employees are able to sue the agency in court under, for example, title VII, and the agency can turn around and sue their employees to enforce things like the prepublication review agreement that was issue -- at issue in this Court's Snepp decision. So in the employment context, I think it's very difficult to say that there's an implied term of the employment contract that either side will not have judicial recourse.
03-1395 +++$+++ 3355 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what if the employment contract is with an American citizen to act as an espionage agent and nobody else knew about it. Would -- would that -- would he be treated as an espionage agent or as an employee?
03-1395 +++$+++ 3356 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If I understand your hypothetical, Justice Stevens, I think that individual would be treated as an espionage agent if it's just somebody for sort of a one-off assignment. And I think that -- that is illustrated by this Court's decision in Totten. I mean, William Lloyd, for example, was a U.S. citizen. He agreed with President Lincoln to engage in espionage activities in the south. And this Court held that when the estate of -- of Mr. Lloyd came to seek compensation from a court, that there was no judicial remedy to enforce that alleged agreement, and the remedy, if any, lay with the President's contingent fund.
03-1395 +++$+++ 3357 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I'd like your help on this. Your interpretation of Totten -- does it say that there is just no actionable contract, or does it say there's no jurisdictions like political question? I mean, you win under any of those theories, if we accept them. But which is it?
03-1395 +++$+++ 3358 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Kennedy, it's a difficult question to answer because I think there are a lot of different strains underlying the Totten decision, and I think there is --
03-1395 +++$+++ 3359 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but you need to get to whether there is -- do you urge dismissal for lack of jurisdiction in the district court or a dismissal on the merits? It's not clear to me at all.
03-1395 +++$+++ 3360 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice O'Connor, I think it's better understood as simply a rule of dismissal, that it's not really a pure jurisdictional defect. It's been referred alternatively as a jurisdictional bar or as a rule of dismissal, and of course, as this Court reminded us recently in the Kontrick decision, people tend to use terms like jurisdiction loosely in these contexts.
03-1395 +++$+++ 3361 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I'm -- I'm not going away with a clear idea of your position.
03-1395 +++$+++ 3362 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
03-1395 +++$+++ 3363 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do I -- do I -- does the Government file under 12(b)(1) like a jurisdiction, 12(b)(6), no cause of action? Of course, you'd probably do both, but I -- I want to know --
03-1395 +++$+++ 3364 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
03-1395 +++$+++ 3365 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- what your best thinking is of what Totten means. It seems to me that this just means that there can be no contract formed under these circumstances.
03-1395 +++$+++ 3366 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, I think the general practice of the Government is to file under both. I believe that's what happened here. I think the fact that we file under both suggests that there is a little bit of confusion about it. I would tend to agree with you it's better understood as a rule of dismissal under 12(b)(6) because if you think about the Totten decision, there's really two strains to the decision. One is a recognition that the claim to relief necessarily depends on a fact that the law has always regarded as secret, and in a sense that case simply can't proceed. And that's very analogous to this Court's holding in Weinberger against Catholic Action. There's a second strain to the case, though, and that is that the very idea of walking into court and filing the action is inconsistent with an implied term of the contract or, indeed, the whole nature of the espionage relationship. And I think particularly if you emphasize that second strain of the Totten decision, I think it's better understood as a 12(b)(6) dismissal because what you're really saying is somebody is walking into court and they are effectively pleading themselves out of court because as -- if you look at this complaint here, it starts out with a recitation of the fact that these individuals allegedly engaged in espionage activities and that they were denied certain promises that were made to them after they carried out, quote, their end of the bargain.
03-1395 +++$+++ 3367 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If there's no cause of action, there's nothing to -- to claim on, what's -- what's the closest analogy? Is it like a promise to make a gift, which is unenforceable? Is there kind of a contract analogy that we can use?
03-1395 +++$+++ 3368 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I mean, I -- you know, one -- one way of thinking about it, but I think it's a very rough analogy, is it's almost like an unlawful contract. It's a contract that the law just doesn't recognize. And I think that -- that reflects the underlying reality of these cases, which is there is something inherent in an espionage relationship that when you enter an espionage relationship, you understand that you have no protected status under the law. I think that has, with respect, been clear in the -- not just in the Totten decision but from the very beginning of the republic. I mean, ever since Nathan Hale agreed to cross British lines as a spy, it was understood that he had no legal recourse, that he had a status that was not recognized at the law. And I think that is -- it has always been thus, and I think there is no reason to revisit the --
03-1395 +++$+++ 3369 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does -- does that mean -- the no legal recourse at all mean that you could torture an agent if you were dissatisfied with his work performance?
03-1395 +++$+++ 3370 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I don't believe that's true, Justice Stevens, and what I would distinguish is between a constitutional claim that an -- an agent -- an alleged agent might have that doesn't depend on the espionage relationship. As I would understand your question, I mean, it would -- there would be a -- a substantive due process claim that anybody could bring if the Government tortured them. They wouldn't have to allege that I had a secret espionage relationship with the Government and then they tortured me. That would be irrelevant to their claim.
03-1395 +++$+++ 3371 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Could I -- could I bring you back to your -- your earlier discussion of a spy who is also a -- a Government employee? Are you telling me that he -- he cannot sue for his regular salary simply because the work he was doing was -- was espionage? I mean, he's -- he's a GS-whatever, GS-16, and the Government just doesn't send him his monthly check.
03-1395 +++$+++ 3372 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice --
03-1395 +++$+++ 3373 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He has no recourse for that check just because he's been doing spy work?
03-1395 +++$+++ 3374 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, that's not the position, and -- and I -- and I apologize if I gave that impression in answering Justice Stevens' hypothetical. I understood to be the hypothetical that you had a Government employee who engaged in a separate spy endeavor, if you will, and then tried to sue to collect on the damages owed under that -- for that particular endeavor.
03-1395 +++$+++ 3375 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, not -- not for his regular GS salary.
03-1395 +++$+++ 3376 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. My -- my hypothetical was an individual who's not a Government employee but is hired by the Government to engage in espionage activities.
03-1395 +++$+++ 3377 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly. And as I indicated to you earlier, Justice Stevens -- that in a sense that's not a hypothetical. That's the Totten decision itself. William Lloyd was -- or at least alleged that he was employed by President Lincoln to engage in those services. And in answer to Justice Scalia's question, if William Lloyd happened to be an employee of the -- of the Comptroller of Currency or something, he could still sue to get whatever remedies he had --
03-1395 +++$+++ 3378 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He couldn't get the 5,000 bonus for being a spy. Right?
03-1395 +++$+++ 3379 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right. No bonus dollars for being a spy under those circumstances.
03-1395 +++$+++ 3380 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Could you clarify on the employment question something else? It's -- it's in your reply brief and you say you're contrasting this type of claim with a title VII claim which -- in which you say that the Court in Webster relied on the CIA's historical practice of litigating employment disputes. The CIA's historical practice, not the Court's rulings. Are you suggesting that even with respect to employment litigation, it's up to the CIA to decide what its practice will be?
03-1395 +++$+++ 3381 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Justice Ginsburg, but the point is that the reason that -- that I think that the Government would have had almost no ability to invoke a Totten-type defense in Webster or in a title VII case is because of its course of dealing with its employees. And I suppose that if the agency completely changed its course of dealing with respect to its employees or entered a very different course of dealing with certain select employees, then a Totten defense might become available in those circumstances. But as I indicated earlier, I think if you look at the overall nature of the agency's relationship and rights vis-a-vis its employees, even its covert ones, that's a very different relationship than the agency has with respect to espionage agents. And again, that's because they enter contracts with them. Each side has certain litigation rights, and I think it would be a bit of a stretch for the Government to come in and say that there's an implied term of that employment agreement that forecloses a judicial remedy.
03-1395 +++$+++ 3382 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I --
03-1395 +++$+++ 3383 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I guess the Government can't enforce -- cannot enforce these contracts either. Right? I mean, you take the good with the -- the bad with the good?
03-1395 +++$+++ 3384 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right, Justice Scalia.
03-1395 +++$+++ 3385 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You've never sued a spy to -- who hasn't carried out his mission?
03-1395 +++$+++ 3386 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly not -- I'm not aware of such a suit, and I've been told by the agency that it's impossible. And I think it just reflects the nature of these agreements, and it does -- it --
03-1395 +++$+++ 3387 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can -- can we go back to the -- another threshold question? You did press below and Judge Tallman urged that the reason this case can't be in the district court in California, or wherever, is it has to be in the Federal Circuit. This is a contract claim against the Government. Are you abandoning that position?
03-1395 +++$+++ 3388 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Ginsburg, in fact we have abandoned it. We abandoned that position at the cert stage. We made that clear to the Court in our certiorari papers, and we don't renew any type of jurisdictional objection at this stage.
03-1395 +++$+++ 3389 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you free -- are you free to abandon it? Is the -- is the Government's surrender of its immunity from suit for contracts, provided that the suit is brought in the Federal Circuit -- is that something that you are free -- Congress having said that, that the executive is free to say, well, we could take advantage of that, but we don't want to?
03-1395 +++$+++ 3390 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, I think the answer to that is that it probably is jurisdictional in the pure sense and so if this Court disagreed with our view that there wasn't a Tucker Act problem, this Court could reach that issue and send the case back on the Tucker Act grounds. So maybe I could explain to you why it is that we think that there's not a Tucker Act problem, at least at this stage of the litigation. The Ninth Circuit's reasoning on this was a little bit oblique, but as I understand it, there were two parts to it. First of all, that there might be some kind of substantive due process claim here that did not depend on the contract but rather somehow stemmed from the fact that there was some endangerment of these individuals and that gave rise to some substantive due process right. And even if that claim, as the Ninth Circuit recognized, is not one that is formed on the contract or an implied contract, it seems to me that that's a claim that's clearly within the coverage of the Totten doctrine because it is inherent in the espionage relationship that the individual will be engaged in a -- in a situation where they will be endangered. And I think that was certainly true of William Lloyd in the Totten case. When he crossed southern lines, he was very much endangered, and that's something that wasn't lost on President Lincoln. In footnote 3 of our opening brief, we have a quotation from President Lincoln about the inherent dangers of spies crossing lines and the need for secrecy to protect that. So that's why I think that claim is properly understood as not being covered by the Tucker Act and not being required to be brought in the Court of Claims, but nonetheless a claim that is barred by the Totten doctrine. The other point they made was with respect to the specific regulations that the agency has internally, and they suggest that there might be a claim here that was based on the regulations independent of the contract. But in order for that claim to go forward, the Court would have to examine the unredacted version of the regulations. And even if the Court is right that there's a need for further proceedings on that question, it makes no sense to interpret the doctrine in a way that requires the Government to wait to assert a Totten defense until there is a jurisdictional question cleared up that actually requires discovery because I think what Totten recognized is -- is there is a need to dismiss the claim at the outset before any discovery because of the nature of the suit. So for those two reasons, we thought that the -- that the better view was that the Tucker Act problem was either not presented because of the substantive due process claim or not ripe and that we would pursue the Totten act.
03-1395 +++$+++ 3391 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That -- that would make a lot of sense if you really felt that what Totten is is -- is a dismissal on the merits, just saying there's -- there's no contractual claim. I -- I mean, if you didn't believe that, if -- if you believed that what Totten says is we have no jurisdiction, then we'd have no problem and we could resolve all of the questions. But it seems to me if you believe that Totten is based mainly -- you know, it's a contract case and said the contract is just totally invalid, we shouldn't be reaching the contract issue. We should simply say that if -- if we agree with you, that there's no substantive due process claim here and -- and no claim based on the regulations. How do we get the authority to decide the -- the contract question?
03-1395 +++$+++ 3392 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think whatever the status the contract question has, whether it's 12(b)(1) or 12(b)(6), I think it's a -- it's a threshold issue and I think this Court under the Rohrgas authority can reach that issue at the outset. And I think it would be particularly perplexing to have a doctrine that said that when we have a suit that we know on the face of the complaint cannot be brought in any court, that we are going to not reach that issue in favor of trying to determine first which court it properly belongs in, when that inquiry in fact will get us into the exact classified information that we know at the outset the suit should not involve in the first place. And I think there is enough flexibility in this Court's Rohrgas decision to allow the Court to reach that threshold question first.
03-1395 +++$+++ 3393 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you're saying that if there's no contract, then there's no substantive liberty to protect under the -- under due process procedures.
03-1395 +++$+++ 3394 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I think that follows, Justice Kennedy. I think one of the difficulties with the constitutional theory that's advanced on the other side is it gives -- it seeks a right to enforce internal procedural handling mechanisms for claims that we know there's no legitimate expectation for their enforcement at all. And it seems odd that this would develop in a way where the procedural rights somehow trump the substantive rights, and we know from Totten that there is no substance here that can be brought forward in the courts. I think in this respect it is also important to recognize that, as a practical matter, an agent who's negotiating in the shadow of the Totten decision and the broader understanding that Totten reflects is likely to seek assurances not just about compensation but about how -- how their claims would be heard by the CIA and how they're going to get their compensation. And I think there's no particular reason to think procedural assurances should be judicially enforceable when the substantive assurances are not. Now, one other point to make about the nature of these agreements. Not only because of the nature of these agreements does the agency end up in a position where it cannot enforce these contracts itself through judicial actions, but it also ends up in a situation where it may have to give up-front payments that it otherwise wouldn't have to give and the like. So there are consequences to both sides of dealing in this way with these espionage relationships as effectively outside the law. But again, it has always been thus, and I think there is no principle in -- in any recent development that requires this Court to revisit the rule of Totten which, as I said, suggests an -- it reflects an understanding that date backs -- dates back much further. If I can make one other point, which is I think even though the Totten decision reflects something more than the state secrets privilege, because there's a more fundamental defect with a suit that's premised on an espionage agreement than just the fact that it tends to compromise secret information, it is true that applying the Totten rule of dismissal does provide a clear mechanism that protects confidential information. And I would analogize it to this Court's decision in Snepp where the Court adopted a constructive trust arrangement. The Court adopted that arrangement where -- where an employee who violated a -- a prepublication review agreement had to turn over all the proceeds to the Government. And -- and the Court adopted that remedy in favor of a damages remedy, and the Court did so to send a clear signal to the employees that there is no incentive whatsoever to violate the terms of these agreements. In the same way, having a clear rule of dismissal sends a clear message to espionage agents that there's no point in even bothering to file the suit in the first place. It will simply be dismissed.
03-1395 +++$+++ 3395 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Clement, the --
03-1395 +++$+++ 3396 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. --
03-1395 +++$+++ 3397 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Go ahead. I'm sorry.
03-1395 +++$+++ 3398 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I just wanted to ask one. I don't remember whether the briefs discuss it or not, but is there a statute that prohibits the disclosure of secret agents like this and does that -- if so, does that have any relevance to this case?
03-1395 +++$+++ 3399 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, there is such a statute. There's a statutory provision that gives the authority. It had been with the -- with the Director of Central Intelligence. The recent Intelligence Reform Act has transferred it to the Director of National Intelligence. But it gives a requirement that the -- that -- that the director protect sources and methods. I think that that -- that statutory provision is consistent with the general notion behind the Totten doctrine, but I don't think it's --
03-1395 +++$+++ 3400 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And does the statute impose a penalty on anyone for revealing the name of a secret agent?
03-1395 +++$+++ 3401 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think it -- it certainly doesn't impose any kind of monetary penalty. There are, under certain circumstances, criminal penalties for the disclosure of classified information, but I think that the --
03-1395 +++$+++ 3402 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But is the identity of an agent a -- a type of classified information protected by the statute?
03-1395 +++$+++ 3403 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it is. It's protected both by the sources and method provision, and I think revelation of a source could implicate the -- the criminal prohibitions in the statute as well. And I think that this statute -- I think you can see the extent to which this -- this case implicates the core of the secrets that the agency has. This Court in the Sims case described the sources and methods protected by the statute as the heart of the intelligence community.
03-1395 +++$+++ 3404 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Clement --
03-1395 +++$+++ 3405 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And this case involves both.
03-1395 +++$+++ 3406 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the -- the argument made by the other side, which seems to me has some plausibility to it, is that Totten was decided in an age when courts were not as flexible as they are today. We -- we have procedures for matters being kept confidential by courts. We -- we allow hearings that are closed in matters that never would have been done before. And since, the argument goes, the -- the only purpose of Totten was to preserve the secrets, why can't we preserve the secrets that way? If and when it turns out that the prosecution of this -- of this suit would require a secret to be disclosed, we will terminate it or -- but -- but up until then, why -- why decide in advance? Why not take a -- take a run at it and see?
03-1395 +++$+++ 3407 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia, there's a couple of points to be made about that. One, as this Court recognized in Reynolds -- in the Reynolds state secrets context itself, even the provisions of going forward, no matter what innovations have been made, the -- the provisions of going forward and handling classified information necessarily involve risks that the information will be disclosed. In the first place, both Totten and the state secrets privilege itself are premised on the notion that the information, if it is in fact privileged, is withheld from the case. It's an absolute privilege. So the idea is not that you have some sort of limited disclosure to the court personnel and to the ultimate fact-finder in the case and that's somehow all consistent with the state secrets privilege. To the contrary. Once a determination is made that a matter is state secrets, there's no further disclosure of the information. You -- the whole premise of state secrets is not that you try to prevent ultimate disclosure to the general public. It's that once something is privileged, you -- you treat the matter as privileged and you take it out of the case.
03-1395 +++$+++ 3408 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you're not making that statement with respect to anything that's classified. There was something in your brief, reply brief, at 18 and 19 in which you -- you cite Reynolds and you say the proper response to classified information in civil litigation is to disregard the classified information, not to order partial disclosure to court personnel. Are -- are you saying then in all of civil litigation if information is classified, then it's just out of the case?
03-1395 +++$+++ 3409 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, I think there can be certain arrangements in certain civil litigation where the Government can agree with a party to proceed -- as part of their overall agreement, to proceed on the basis of classified information, but that would involve a very different way of -- of proceeding than the normal default rules. And I think absent some kind of agreement for the Government to proceed in that way, the default rule in civil litigation has always been that the privilege is just that. It's -- the matter is -- the matter is privileged and it's taken out of the case.
03-1395 +++$+++ 3410 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. But you lose. I mean, if -- if that matter is necessary for your case, don't -- don't you lose?
03-1395 +++$+++ 3411 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely not, Justice Scalia, not in civil litigation. And that's why the state secrets privilege is, I mean, quite a remarkable doctrine in the civil side of the case.
03-1395 +++$+++ 3412 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're talking about civil only.
03-1395 +++$+++ 3413 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Only civil.
03-1395 +++$+++ 3414 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm thinking of gray mail. Certainly in the criminal -- criminal area, that isn't the case.
03-1395 +++$+++ 3415 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right, Justice Scalia.
03-1395 +++$+++ 3416 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You either cough it up or you lose.
03-1395 +++$+++ 3417 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, and a different bargain has been reached in the criminal context, and in that context to ameliorate the consequence of the sometimes difficult choice of revealing classified information or proceeding, the Congress has come through with the Classified Information Procedures Act. That only applies in the criminal side, though.
03-1395 +++$+++ 3418 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I just want to ask one question. Don't they have a claim interpreted favorably to them that this has nothing to do with a contract, totally nothing? Okay? But there happen to be some rules over there in the CIA in their books somewhere, which we've never read, and they say when we use a foreign person as a spy, we'll pay him some money or we give him something. We have some procedures. Now, we don't have to do that as a matter of contract. We don't have to do it at all, but we do it. And so there's a claim here that we want to see that they're following their own rules. They say Totten doesn't apply to that because Totten is about contracts. Our claim isn't about contracts.
03-1395 +++$+++ 3419 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, I have two responses to that. The first is I think the -- that the Totten doctrine extends more broadly than just the narrow confines of the contract.
03-1395 +++$+++ 3420 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it doesn't extend to torts, does it?
03-1395 +++$+++ 3421 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would -- I mean, I would need a specific hypothetical. I can't imagine a tort that by its nature --
03-1395 +++$+++ 3422 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, you go --
03-1395 +++$+++ 3423 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- depends on the relationship.
03-1395 +++$+++ 3424 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You go ahead. You go ahead.
03-1395 +++$+++ 3425 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I can't imagine a tort that depends on its very nature on the relationship. But we're talking about regulations that, as I understand the other side's allegations, are regulations for handling secret contracts. So unless one can allege that they were a party to a secret contract or at least a secret relationship, there's no point in that individual even being in a position -- they wouldn't even have standing to challenge the regulation.
03-1395 +++$+++ 3426 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so you're saying if in fact, when you look at those allegations, they're about regulations for handling secret contracts, it's about a contract, but if there were to be an allegation that it has nothing to do with the contract at all, it's just a way we handle retired foreign spies, Smiley for example, or someone like that. It has nothing to do with it, you see. Then could they -- what would be the rules then?
03-1395 +++$+++ 3427 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I still think the answer would be that there would be no relief under that circumstance because their -- their -- still their claim to having any entitlement under those rules at all would -- I mean, you know, total strangers don't have rights under those regulations. Alleged spies would have rights under those regulations, and the very idea of walking into court and asserting your rights as an alleged spy is inconsistent with the entire relationship and the contract that gave rise to it. I would also point you to the Weinberger decision, Weinberger against Catholic Action, because there this Court applied Totten to not force the Navy to produce an environmental impact statement even though there were regulations on the book -- and the concurring Justices focused on those regulations -- where the Department of Defense said we do produce an environmental impact statement even if it's classified. So I think on the authority of Weinberger as well, the very fact that there are internal regulations on a subject, the entire subject matter of which is secret, doesn't give rise to judicially enforceable rights. If there are no further questions, I'd like to reserve the time for rebuttal.
03-1395 +++$+++ 3428 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Burman.
03-1395 +++$+++ 3430 +++$+++ FALSE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: First, with respect to the question about the due process rights below, I would note that the Government does not challenge, and specifically said so in footnote 2 of the petition for cert and footnote 1 in their brief on the merits, whether there is a due process claim here. I would encourage you -- and I will come back to the due process question if you're interested. I'd encourage you to look at the respondents' appendix, pages 72 to 74, where the CIA employee described the fact that there are, in fact, regulations that are not limited to enforcing a secret contract. That is not our claim.
03-1395 +++$+++ 3431 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they are regulations that the -- that depend upon the existence of a spy-principal relationship --
03-1395 +++$+++ 3432 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Actually we don't believe that's correct, Your Honor. We believe that --
03-1395 +++$+++ 3433 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, are you claiming that your -- your people are -- were not spies?
03-1395 +++$+++ 3434 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We allege that they were coerced into that relationship, but we do --
03-1395 +++$+++ 3435 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, however got there --
03-1395 +++$+++ 3436 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
03-1395 +++$+++ 3437 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- they -- they -- your claim is that they're spies and that, therefore, whatever your procedural claims may be, whatever your substantive due process rights may be, as I understand it, depends upon the assumption of a spy-principal relationship.
03-1395 +++$+++ 3438 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do not agree with that, Your Honor.
03-1395 +++$+++ 3439 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why?
03-1395 +++$+++ 3440 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We believe that PL-110 allowed the admission of people essential to the United States without any comment on whether they had formerly been spies and that these regulations do not require us to prove as an essential element even to the CIA, much less to the district court --
03-1395 +++$+++ 3441 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You --
03-1395 +++$+++ 3442 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that they were spies for the CIA.
03-1395 +++$+++ 3443 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you don't have to prove that they were spies, but you have to prove that -- that they had a contractual relationship with the United States. And the only contractual relationship you're asserting is the relationship of a spy.
03-1395 +++$+++ 3444 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We disagree with that, Your Honor.
03-1395 +++$+++ 3445 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh --
03-1395 +++$+++ 3446 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do not believe -- and in fact, the Ninth Circuit went out of its way to make very clear to the district court that if we try to plead around and base a claim on a contract, the district court should dismiss that.
03-1395 +++$+++ 3447 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, wait. What -- what is the basis on which you assert these regulations are applicable to you --
03-1395 +++$+++ 3448 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We --
03-1395 +++$+++ 3449 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- to your client?
03-1395 +++$+++ 3450 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- we say that the -- we believe we can show, once we are allowed to proceed -- and it's premature at this time to decide whether we'll be successful in this or not. We believe we can show that the CIA has internal regulations that say as to PL-110 resettlees, we will provide continued financial and security support in these circumstances, a need-based standard.
03-1395 +++$+++ 3451 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and the agency comes in and says, prove that you're a PL-110 resettlee.
03-1395 +++$+++ 3452 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The agency --
03-1395 +++$+++ 3453 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and what is your response to that?
03-1395 +++$+++ 3454 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The agency has never --
03-1395 +++$+++ 3455 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your response is I was resettled because I was a spy.
03-1395 +++$+++ 3456 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. We don't have to say that. We can say we were resettled under PL-110, which they have to inform at the time the INS Commissioner that they were bringing in people as PL-110 resettlees. They're not required to tell the INS Commissioner that they were spies, just that they're essential.
03-1395 +++$+++ 3457 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What if -- what if the Government takes a slightly different tack and -- and you bring your essentially PL-110 neutral claim, and the Government says, the only relationship upon which this claim can be based by these particular Does is a spy relationship? We claim privilege, and on the basis of that privilege, we -- we claim dismissal. What is your response to that?
03-1395 +++$+++ 3458 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If that were an essential element of our claim, which we believe it is not --
03-1395 +++$+++ 3459 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, they're not saying it's an essential element in the sense that only a spy can make a 110 claim. They're saying that the only basis upon which you can make a 110 claim is the spy relationship. You have no other. How do you respond to that?
03-1395 +++$+++ 3460 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Hence the reason we brought the case as Does. A procedure that was not known for that purpose at the time of Totten, that their own information officer and their brief and their position in Webster admits preserves the identity, preserves the secret. They acknowledge --
03-1395 +++$+++ 3461 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, look, you're talking about procedural means. I want to know what your immediate response to their claim of privilege is. Are you going to say we weren't spies?
03-1395 +++$+++ 3462 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The advantage of the Reynolds procedure is if they had made the claim of privilege, we would know what they were claiming was privileged.
03-1395 +++$+++ 3463 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They are making the claim of privilege on the ground that the only basis for your 110 claim is or can be, on facts known to them, that your clients were spies. Do you respond by saying, yes, we were spies, or do you respond by saying, we weren't spies?
03-1395 +++$+++ 3464 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We respond by saying we have an entitlement to a fair process within the agency, a confidential process --
03-1395 +++$+++ 3465 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's assume that you have a really obnoxious court -- (Laughter.)
03-1395 +++$+++ 3466 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that wants a substantive response, do you respond by saying they're right, we're spies, or they're wrong, we weren't spies?
03-1395 +++$+++ 3467 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If their position is that they can't confirm or deny to the district court whether we were spies --
03-1395 +++$+++ 3468 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They are claiming a privilege on the grounds that the only basis for your claim can possibly be the spy relationship based on facts known to them. In order to defeat that privilege, you've got at least to start by saying, no, we weren't spies and we don't claim to be. Are you going to say that or aren't you?
03-1395 +++$+++ 3469 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We are not going to say we were not spies. We are going to --
03-1395 +++$+++ 3470 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then I don't know why you're not out of court on Totten.
03-1395 +++$+++ 3471 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because we are not claiming the benefit of a bargain to be a spy. We are not seeking compensation --
03-1395 +++$+++ 3472 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is a PL --
03-1395 +++$+++ 3473 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You are -- you are --
03-1395 +++$+++ 3474 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is a PL-110 settlee?
03-1395 +++$+++ 3475 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A PL-110 resettlee allowed the CIA and the FBI to bring in up to 100 people per year that were deemed essential to the U.S. They could have been simply very important scientists who wished to defect.
03-1395 +++$+++ 3476 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. So you would say this --
03-1395 +++$+++ 3477 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They could have been any --
03-1395 +++$+++ 3478 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are -- are you claiming that your answer to Justice Souter's question is we will assume for purposes of this case -- we're not admitting whether it's true or not, but we're going to assume we're not spies --
03-1395 +++$+++ 3479 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We believe --
03-1395 +++$+++ 3480 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- because we win even if we're not spies because we are essential persons?
03-1395 +++$+++ 3481 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If we had made the Totten mistake of suing in our own name, we would be out of court, but we have sued as Does and we have said we are satisfied with the CIA concluding internally whether we are entitled to PL-110 status.
03-1395 +++$+++ 3482 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right, but my guess is -- well, he's pushed you and it sounds like it to me -- that the only basis on which you could say you were an essential person is that you're a spy.
03-1395 +++$+++ 3483 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't --
03-1395 +++$+++ 3484 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He's -- he's not a scientist. He's not a --
03-1395 +++$+++ 3485 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Since they have not contested our PL-110 status until a somewhat desperate comment in the reply brief, we have never had to face this question because there has been no question that we are PL-110 resettlees, and that as long as we do not disclose our identity, which we've been careful not to do, unlike Totten, there is no state secret that is -- is at risk.
03-1395 +++$+++ 3486 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if the question comes up, you're going to have to disclose the identity. I mean, if -- if it is controverted whether indeed you're -- you're a spy or not, then what do you do? Do you say, well, we'll -- we'll do it in camera? That's right? I mean, you -- you think that -- that a United States district court has all of these security facilities available as Langley? I mean --
03-1395 +++$+++ 3487 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We --
03-1395 +++$+++ 3488 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- trust me, it doesn't.
03-1395 +++$+++ 3489 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do not believe that we have to have -- that we have to disclose anything to the district court to have standing as Does to seek a fair procedure within the CIA. At the time of Totten, the idea of having a Doe being able to sue was not recognized for a plaintiff who wanted to protect his identity. We have that now as of the last --
03-1395 +++$+++ 3490 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do we have to change Totten? Because, look, what I'm now thinking is, A, if you're suing on a contract, you win because you're a spy, if you win. If you're suing on promissory estoppel, you win because you're a spy, if you win. If you're suing on PL-110, you win because you're a spy, and if you're suing on due process, you win because you're a spy. So no matter what, you can't win unless you're a spy. Now, they -- they have Totten, and it -- it -- that sounds to me as if you're there. And do we have to overturn Totten for you to win?
03-1395 +++$+++ 3491 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do not believe so, but you should not expand Totten in the dramatic way the Government asks. And it does not counsel for you to expand Totten when they cannot define a clear line as to where this jurisdictional, which they use in the brief but abandon here -- they cannot explain to you why in Webster -- they argued on pages 37 to 40 of their brief for exactly the same interpretation of Totten that they are arguing now. They specifically said that it should not be up to the courts to look behind the scene of the privilege in Reynolds, and yet the Court rejected that position. In Hamdi, they said there cannot be a secret proceeding with due process and the courts cannot review whether we've made that available, and the Court rejected that. Things have changed since the time of Totten. That does not require overruling Totten, but it certainly does not counsel expanding Totten in the dramatic way that the executive asserts, a way that basically says to the Court you have absolutely no role in determining whether our assertion that the state secret is an essential element here is in fact the case and whether it truly is a state secret. We -- if there's anything we ought to be able to decide it's what our case is about. We may have loosely used bargain in the complaint, but the district court and the Ninth Circuit have now made it very clear that we cannot have a contract claim, we cannot have a due process, whether substantive or procedural, based upon a contract, we cannot have a promissory estoppel claim. The Ninth Circuit has decided all of that against us. What we still have, though, is a claim to a fair, internal agency procedure.
03-1395 +++$+++ 3492 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Attached to what? I mean, you can -- a fair procedure leading nowhere is not a claim. You have a right to a fair procedure because it's attached to some substantive right.
03-1395 +++$+++ 3493 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's what we haven't yet had the opportunity to prove as to what it is in these regulations. But if you would look at -- again, at the respondents' appendix 72 to 74, the agency's witness that they voluntarily made available, did not make any assertion of privilege, did not make any assertion that this was confidential asked, are there agency regulations that you know of that relate to the resettlement of these PL-110 people who are resettlees from foreign countries? Yes. Are there regulations that deal with the determination of the level and extent of benefits to be given resettlees? Yes. And are there agency regulations that deal with grievances by resettlees? Yes. We think no minimal due process allows them to tell us the wrong standard and not to give us notice and an opportunity to be heard in a confidential proceeding --
03-1395 +++$+++ 3494 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's --
03-1395 +++$+++ 3495 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You still have --
03-1395 +++$+++ 3496 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- what's your best case for that? What's your best case for that proposition?
03-1395 +++$+++ 3497 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, certainly Matthews v. Eldridge.
03-1395 +++$+++ 3498 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because it sounds to me like due process in -- in the air.
03-1395 +++$+++ 3499 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't believe it is, Your Honor. We -- we don't know for sure until we are entitled to litigate the regulation.
03-1395 +++$+++ 3500 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. We know enough at the summary judgment stage for us to -- to decide whether the case can go forward or the dismissal stage.
03-1395 +++$+++ 3501 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there has been no summary judgment --
03-1395 +++$+++ 3502 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or dismissal stage.
03-1395 +++$+++ 3503 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At -- at the dismissal stage, our pleadings have to be accepted as true, and we believe that the pleadings sufficiently assert that there are regulations there that create a -- a property interest and that --
03-1395 +++$+++ 3504 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That create a property right?
03-1395 +++$+++ 3505 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1395 +++$+++ 3506 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the property right is the contract with the United States. I mean, you can't get away from the contract by calling it a property right.
03-1395 +++$+++ 3507 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do not believe there is a contract and we do not believe we have to rely on it. We were -- the Does were coerced into what they did. They do not seek compensation.
03-1395 +++$+++ 3508 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is your strongest case? I don't think Matthews addresses it. What is your strongest case for the notion that you have a property interest even though you don't have a contract?
03-1395 +++$+++ 3509 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Probably Perry v. Sindermann in the sense that there was clear that the contract was over but the Court indicated that --
03-1395 +++$+++ 3510 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that was the firing of a school teacher. There was --
03-1395 +++$+++ 3511 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was a nonrenewal.
03-1395 +++$+++ 3512 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- there was -- there was an interest in having your job, contract property, and interest in getting back salary, contract property. Not this case.
03-1395 +++$+++ 3513 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- what the Court actually, I believe, focused on there and in Goldberg v. Kelly was the question of whether there were regulations --
03-1395 +++$+++ 3514 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Goldberg v. Kelly, welfare benefits, money.
03-1395 +++$+++ 3515 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We believe this is in a sense the equivalent of a welfare benefit.
03-1395 +++$+++ 3516 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Perry v. Sindermann. Is that -- that's the nontenured teacher?
03-1395 +++$+++ 3517 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1395 +++$+++ 3518 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There's no property right there, I don't think. I've always taught that as a ground that it wasn't compared to Roth where there was. All right. So -- so -- but there was a First Amendment interest of some kind.
03-1395 +++$+++ 3519 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I believe the Court indicated that it would be possible if there were practices and policies that had been established that set substantive standards for continuing that there would be a property right in a fair procedure for determining that internally at the school.
03-1395 +++$+++ 3520 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're probably right if they have -- I see what you're saying.
03-1395 +++$+++ 3521 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We also believe there is a liberty interest. These people came to the U.S. in danger. The mere fact of labeling them essential to the United States and bringing them in in the PL-110 status, taking away their identity, giving them a false identity, false references, changing their occupations, all of those things we believe -- we have an argument -- created a liberty interest in continuation of the protection. It's the special relationship, the Dushane-type argument that the -- that the Ninth Circuit relied on. But I would hasten to add it is premature to determine whether we win on the merits, and the Government is absolutely wrong in their brief in suggesting that unless we can prove at this point that we can win on the merits, that we don't have standing. We have standing to make a claim for fair procedures. Those procedures may include confirming internally to the CIA our identity and they may include confirming whether we satisfy whatever the need-based standard is that the CIA has identified. We have made every possible effort to comply with the covenant that Totten imposed in a contract, a contract that we don't believe we have. We sued as Does. We have sought preapproval of every single filing. We had -- counsel that learned any confidential information were precleared by the agency. That is not what happened in Totten. Those are procedures, as Justice Scalia has suggested, that did not -- were not recognized at the time of Totten just like the due process claim was not recognized at the time of Totten. And it is a claim that can be done internally to the CIA.
03-1395 +++$+++ 3522 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You think that Totten would be decided differently today because of the -- our due process jurisprudence?
03-1395 +++$+++ 3523 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We believe that Totten didn't know to make a claim other than contract.
03-1395 +++$+++ 3524 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- that's not my question.
03-1395 +++$+++ 3525 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, we do.
03-1395 +++$+++ 3526 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose Mr. Totten is here today.
03-1395 +++$+++ 3527 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And if there were regulations in the Totten situation that created some sort of meaningful standard that would be applied by an internal procedure, which the record shows here the CIA has an internal procedure, not just regulations setting out the standard, but a review process. We simply want to have a fair, internal procedure. This case really is not about the protection of state secrets, but the limits of the executive authority to unilaterally assert without any review by the court --
03-1395 +++$+++ 3528 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How would the court -- a court go about monitoring this fair procedure --
03-1395 +++$+++ 3529 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We -- we don't believe the court would have a role in monitoring the fair procedure. It would simply determine whether the procedure that the CIA has described in the court record already satisfied minimum standards of -- of due process. If the court found that it did not --
03-1395 +++$+++ 3530 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And then you -- you said that -- suppose you knew what it was on paper and then you wanted to complain to a court, that's not what they gave us. They said that in their regulations, but they gave us something much less.
03-1395 +++$+++ 3531 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's possible that the CIA would assert that there is some reason that it gave less than its regulations that would be a state secret. It's hard for us to imagine what that would be, but in fact that is open on remand for the -- for the CIA to argue that.
03-1395 +++$+++ 3532 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do these regulations just set forth a procedure or do they set forth some substantive entitlement?
03-1395 +++$+++ 3533 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They seem to do both. They -- we haven't, of course, seen them in full yet, but they set forth a procedure and then they also say that there is some sort of need, age, indigency, and health-based standard for continuing the support. And if you'll notice --
03-1395 +++$+++ 3534 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then it will be worse for them. I mean, they say, look, frankly we'd rather reveal the names of one or two spies than we would like to reveal our procedures for dealing with the spies we bring into the United States. It will take someone who reads those about 15 minutes with a computer to locate 400 resettled spies. That will be a terrible disaster.
03-1395 +++$+++ 3535 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If that was an external process, but we agree it should be internal to the CIA, that the process for applying that standard must remain internal to the CIA. The Does share the interest in protecting their identity and the identities of others like them. We -- we believe that the Government --
03-1395 +++$+++ 3536 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's your answer? What is your response?
03-1395 +++$+++ 3537 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That there's no external -- there -- there will be no public knowledge of that information, that they can explain their -- they can apply their process internally, apply the need-based process internally, and that will not be litigated in the courts if they assert executive -- or state secret privilege as to that, and we assume that they would at that point. But we -- we agree --
03-1395 +++$+++ 3538 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the court would say you don't have a cause of action unless it knows what -- what these regulations say. Surely the regulations have to be disclosed to the court at least.
03-1395 +++$+++ 3539 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We -- we believe that's the case and they have not yet said that it would hinder the state secrets at all to disclose them, and they have disclosed quite a bit and said that the remainder they are holding back only a need-to-know basis. They have not asserted any state secret privilege with the remaining regulations. And we know, in fact, from the letter that is in the record from -- between the CIA and the Justice Department in which the -- there was basically an understanding that there would be regulations like this in order to make sure that these PL-110 resettlees did not effectively become wards otherwise on -- on the Government and that the CIA would continue some responsibility for them. The -- we are not aware of any case in which this Court has suggested that there is an obligation of the district court to look behind the use of Doe and determine in a public manner the identity of the person. That -- the Government seems to assume that they have some entitlement to have a self-inflicted harm that they would demand that the identity of the Does be disclosed publicly and that they're entitled to do that. We do not believe that that's a required part of the use of Does. And in any event, we think it is somewhat similar to the criminal context where, if the Government is going to insist on moving forward in some way that is an affirmative defense like that, they may well have a responsibility for not being able to defend their position if they, at the same time, say that the state secret privilege applies. But at this point, anyway, that has not been presented to the district court. We -- we find it strange that the Government so quickly now says, unlike what it argued in Webster, that there is this type of contract which is not subject to the jurisdictional bar, and that is a contract with their own employees when they tell us that those same employees are going to know a much broader swath, as Mr. Clement said, of secrets. If their rationale made sense as something that was so compelling that the Court should create a jurisdictional bar for what the courts would otherwise have the capacity and the competence to do, you would think it would apply in that situation as well. But the fact is they lost Webster, and so they have to try to say that there is something still very broad about Totten but explain away Webster, and they simply cannot convincingly do that. Webster was the same argument by them. Reynolds was the same argument by them, and they lost.
03-1395 +++$+++ 3540 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May -- may I ask you what is probably a stupid question? Why isn't the contract barred by the statute of frauds?
03-1395 +++$+++ 3541 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we haven't thought about that because we haven't proceeded on -- on the contract. There may well -- we -- it probably is.
03-1395 +++$+++ 3542 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
03-1395 +++$+++ 3543 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And there -- we -- we -- but we do not proceed on the contract. The Does, in fact, do not underestimate the risks of disclosure of their identities and of their relationship with the CIA. Perhaps they put too much into the complaint describing at some length what they did, but the reason for that, I suggest, is understandable. It was subject to preapproval by the agency. Why not put the equities in there even though they're not essential elements of your claim and see if the agency approves them? The agency approved them. We should not be thrown out of court because we put into the complaint allegations which the agency admits using the Doe, do not threaten any secrets, and which are not part of the essential elements of our claim.
03-1395 +++$+++ 3544 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are all of these what you call 110 resettlees -- are they all CIA resettlees?
03-1395 +++$+++ 3545 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does not appear that they are.
03-1395 +++$+++ 3546 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Some of them State Department and --
03-1395 +++$+++ 3547 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At -- at least -- my understanding is at least the FBI and perhaps the Commissioner of INS at the time for -- perhaps at the request of other agencies. It appears that all three agencies had the ability to create this exception to the normal immigration procedure. If the Does can show on remand that the CIA's regulations are as they allege and that PL-110 status generally, which is what the CIA witness McNair basically said, that many PL-110 resettlees are in continued danger because of the nature of which we brought them in, regardless of what they did before we decided to bring them in, or if they can show that in their particular situation there is a -- a special relationship of danger created, we believe we would have a substantive due process argument and a procedural due process argument. That is not today's question. The Government has agreed that for purposes of today's question, it should be assumed that we can make out a due process claim. That claim is --
03-1395 +++$+++ 3548 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not quite sure where the Government has said that. You talk about footnote 2. All it said was that they're not appealing the point that you have to go to the Court of Claims.
03-1395 +++$+++ 3549 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And also in footnote 1 in the -- in their brief on the merits to this Court. I think it's on page 7. My reading of that is that they are not challenging the due process analysis, and it would be premature to challenge the due process analysis at this time, which is what the Court said in Webster. We believe that our due process argument is stronger than the due process argument that was made in Webster, but the Court in any event said that's not what is -- what is before us at this time. And -- and we believe that that's the same situation now.
03-1395 +++$+++ 3550 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you agree --
03-1395 +++$+++ 3551 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm just wondering what --
03-1395 +++$+++ 3552 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Excuse me. Do you agree your due process argument does depend on having either a property interest or a liberty interest?
03-1395 +++$+++ 3553 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1395 +++$+++ 3554 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm just wondering what's, you know, some foreign -- I don't know who -- who the Does spied on, but let's assume -- you say they're in danger. Somebody may be interested in -- in the subject. What kind of security provisions do you have in your law office that would -- that would make them immune from the kind of intrusion that foreign espionage services --
03-1395 +++$+++ 3555 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In -- in general, we have not been allowed to take information outside of the agency. Even when we're in the clear --
03-1395 +++$+++ 3556 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not talking about the agency. Just about the name of your clients. I think it's -- there are countries interested in -- in, you know, who was spying on them.
03-1395 +++$+++ 3557 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was their decision to trust us with that, and ironically under the Government's theory of this case, the Does --
03-1395 +++$+++ 3558 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but it may lead -- it may lead to other agents and -- and one of the problems about allowing suits like this is that this information about who the agents are will be brought to a lawyer, kept in his law office, and much more readily accessible to -- to foreign powers than -- than it would be at Langley.
03-1395 +++$+++ 3559 +++$+++ TRUE +++$+++ MR. BURMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And under the agency's theory of this case, there is nothing that stops the Does from making their identities public because there is no enforceable contract that the agency can enforce. The agency wants to keep Snepp. It wants to live with Webster, and the only thing it has left is to somehow carve out a rule that applies to these people who have done everything they possibly could, including not telling me who they are. Our files within our office do not identify them in writing, is my understanding, by name. I certainly am not aware of who they are. I know what's alleged in the complaint and nothing more than that. But certainly the risk of gray mail, the risk of the Does -- people in the Does' position disclosing something is totally irrelevant to the question of whether Totten creates some sort of bar that applies not just to a contract claim but to a claim where there is no contract, where it is not alleged that it is based upon a contract, and where the parties have done everything possible -- the Does, the plaintiffs, have done everything possible to honor the confidences that the Government wants to keep. Thank you, Your Honors.
03-1395 +++$+++ 3560 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Burman. Mr. Clement, you have about 4 and a half minutes if you need them.
03-1395 +++$+++ 3562 +++$+++ FALSE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, just a few points. And may it please the Court, just a few points in rebuttal. First of all, as I think Justice Kennedy's question indicated, there was no waiver of any due process argument. If you look at those footnotes, the only thing that's waived is the Tucker Act concern that we talked about earlier. Second of all, I think in thinking about this PL-110 claim, it's important to acknowledge, as I think Justice Scalia was suggesting, that it is the PL-110 claim to the CIA. And as I understand their argument, it depends on their being a significant difference between coming into court and saying I'm an unacknowledged spy and I'd like to sue the CIA and coming into court and saying I am an unacknowledged PL-110 resettlee with a claim against the CIA, please hear my claim. I would say there's no material difference in terms of all of the policies that undergird the Totten doctrine between those two. And I would note that even the Ninth Circuit recognized at 35a and 37a of the petition appendix that the respondents would have to establish a relationship with the agency. The final two points I would make is, first of all, they would like to make some benefit of the fact that they are suing as Does as opposed to the Totten case. I would make two points about that. First of all, presumably the reason that William Lloyd could use his name in the Totten case is because it was a suit by his estate and he was deceased, so he didn't have a concern about retaliation. (Laughter.)
03-1395 +++$+++ 3563 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would also say that the difference between suing under Doe and suing under your name just makes clear that both sides to this litigation start with the premise that the fundamental fact of this litigation turns on a secret. They don't want their name revealed any more than we want the name revealed, and that just underscores how this is all about a secret, just as in Totten. The last point I would make is they asked you to take their pleadings as a given at this stage in the litigation, and I would ask you to look at those pleadings. The complaint is replete with references to the espionage relationship, and the complaint itself cites Totten or the Totten doctrine no less than seven times. I would suggest that if this claim is not Totten-barred, then no claim is. With that, I'd ask the court below be reversed.
03-1395 +++$+++ 3564 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you. The case is submitted.
03-1407 +++$+++ 3568 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument in the case of Rousey against Jacoway. Ms. Karlan.
03-1407 +++$+++ 3570 +++$+++ FALSE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens, and may it please the Court: Yesterday in Koons Buick against Nigh, this Court emphasized once again that statutory interpretation is a holistic process based on common sense, that the reading of the statute should look at all the words to avoid a passing strange or an anomalous result when the text does not dictate it and the statutory history suggests otherwise.
03-1407 +++$+++ 3571 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That was a case I dissented in, wasn't it?
03-1407 +++$+++ 3572 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but actually, Justice Scalia, I think even you will find our case more appealing.
03-1407 +++$+++ 3573 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but -- but it is true you have a strong textual --
03-1407 +++$+++ 3574 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We have an excellent textual argument.
03-1407 +++$+++ 3575 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I was a little bit surprised at your opening because it seems to me you have a strong textual argument you're now defending.
03-1407 +++$+++ 3576 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We do. A holistic reading of the text shows that section 522(d)(10)(e) of the Bankruptcy Code --
03-1407 +++$+++ 3577 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What does a holistic reading mean? Can you stay within the --
03-1407 +++$+++ 3578 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
03-1407 +++$+++ 3579 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- text and still be holistic?
03-1407 +++$+++ 3580 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not going to look outside the text at all. A holistic reading of section 522(d)(10)(e) of the Bankruptcy Code, which is on -- in the petitioners' brief at pages 1 through 2 --
03-1407 +++$+++ 3581 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What does the word holistic mean? (Laughter.)
03-1407 +++$+++ 3582 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it means read all the words in the sense that makes the most sense to you rather than plucking words at random or rather than looking at a word artificially. For example, when you look at a phrase like on account of in the Bankruptcy Code, as the Court did in North LaSalle, account means a lot of different things, but there it clearly meant because of, as it does in this statute.
03-1407 +++$+++ 3583 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So the antonym would be parsimonious or something like that?
03-1407 +++$+++ 3584 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it'd be partial, but I'm not sure.
03-1407 +++$+++ 3585 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, let -- let me ask --
03-1407 +++$+++ 3586 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure.
03-1407 +++$+++ 3587 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- ask you this. The -- the statute does say that the right to receive a payment is on account of age, and that seems to me to be an argument somewhat in respondent's favor because the -- the payment has to be triggered by the age, if you read it that way, and it seems to me that's a fair way to read it.
03-1407 +++$+++ 3588 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and I think payments are triggered by age because section 522(d)(10)(e) is a statute eminently about the protection in bankruptcy of retirement payments. For individuals --
03-1407 +++$+++ 3589 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the problem for the court below was that the person covered can ask for it in a lump sum and pay a penalty.
03-1407 +++$+++ 3590 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right, and that's not --
03-1407 +++$+++ 3591 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and that isn't then on the basis of age. Am I right? Is that -- that was the problem the court had below.
03-1407 +++$+++ 3592 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that's the problem the court had below. I think it's an illusory problem for the following reason. It's clear that the right to receive full enjoyment of payments under an IRA does not attach until one of the triggering events occurs. The trigger events are age 59 and a half, disability, illness, or for the estate, death. And that's the right that we're talking about here, and that's why --
03-1407 +++$+++ 3593 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, when you say full enjoyment, you -- you think when -- when I'm taxed on something, I -- I don't have full enjoyment of it? The only thing triggered by age, as far as I can tell -- the only thing triggered by age -- is your obtaining of a tax benefit. That's all. Once you reach a certain age, you can withdraw it without -- without paying the 10 percent tax.
03-1407 +++$+++ 3594 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, but the 10 percent tax here is designed and does, in fact, operate as a deterrent and a penalty.
03-1407 +++$+++ 3595 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I'm sure it does, but -- but it's -- it's hard to accept the notion that simply because after a certain age I get a tax benefit, I'm receiving the money on account of my age. That doesn't make any sense to me.
03-1407 +++$+++ 3596 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia, the way that I would view that is prior to age 59 and a half, you pay a penalty. And Congress put that penalty in there because the holistic sense, the full reading of section 522(d)(10)(e) is it is designed to protect retirement savings, replacement income of the elderly, the disabled, or ill people, once they get to the point where those triggering events, which are in 522(d)(10)(e), occur. Those are the same triggering events --
03-1407 +++$+++ 3597 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Karlan, the -- as long as this money was in the plan, it was shielded from bankruptcy, and there are -- there was not unlimited access even with the penalty when it was in the plan. One thing that I don't know and may be of some significance, did the Rouseys have a chance, even though they lost their employment, to keep their money in the plan where it would be shielded from bankruptcy or did they have to roll it over?
03-1407 +++$+++ 3598 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Northrop Grumman's policy is to require individuals who leave the company's employment to roll their pension plans into an IRA. The Rouseys tried to get work in Arkansas when they moved there. Had they gotten a job there that they were able to keep, which they were unable to do because of their health, they could have rolled that money back into an undeniably, completely exemptible.
03-1407 +++$+++ 3599 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Another employer's plan.
03-1407 +++$+++ 3600 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
03-1407 +++$+++ 3601 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But they could not have kept it in this employer's plan?
03-1407 +++$+++ 3602 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. This employer did not permit individuals to keep the money in the plan. They were told they had to remove the money when they lost their jobs.
03-1407 +++$+++ 3603 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That was a term of the plan that it -- you can remain in it only so long as you're employed?
03-1407 +++$+++ 3604 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Apparently so.
03-1407 +++$+++ 3605 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are there any other plans that are -- are entities clearly covered by the statute in which the only effect of age is to enable you to avoid a tax?
03-1407 +++$+++ 3606 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-1407 +++$+++ 3607 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Well, then --
03-1407 +++$+++ 3608 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Let me give you a couple --
03-1407 +++$+++ 3609 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- then you might persuade me.
03-1407 +++$+++ 3610 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Let me give you a couple of examples --
03-1407 +++$+++ 3611 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
03-1407 +++$+++ 3612 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that I think will be quite familiar. A 401(k) plan allows you to get access to money before you turn 59 and a half on account of hardship, and you pay a 10 percent tax penalty if you do so. The Federal Government's thrift savings plan for Federal employees allows you to take a loan out of the plan and to pay the interest back into your own account before you turn 59 and a half, thereby essentially giving you free use of the money. If you don't pay the loan back, it's then treated as a -- as a distribution, and you pay the 10 percent tax penalty on it. So that if you read this statute to -- not to include IRA's, to deny exemption to IRA's, you read this statute to deny exemption to virtually all of the modern forms of defined contribution pension plans or savings plans.
03-1407 +++$+++ 3613 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. That was what I was going -- aren't most of the pension profit-sharing, stock bonus plans, and annuities similar to the IRA's in terms of allowing withdrawal on the payment of a penalty?
03-1407 +++$+++ 3614 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Your Honor.
03-1407 +++$+++ 3615 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought they were all in the same boat. So what the effect of this rule is -- of the Ninth Circuit is that they would all fail to qualify --
03-1407 +++$+++ 3616 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that's correct. You would render section 522(d)(10)(e) essentially a nullity.
03-1407 +++$+++ 3617 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, it's the Eighth Circuit. Excuse me.
03-1407 +++$+++ 3618 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. I -- I can see why you might have thought it was the Ninth Circuit. (Laughter.)
03-1407 +++$+++ 3619 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It -- it might be wrong anyway. (Laughter.)
03-1407 +++$+++ 3620 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, yes.
03-1407 +++$+++ 3621 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is the percentage amount of the payments that are taken out of all IRA plans before people are 59 and a half?
03-1407 +++$+++ 3622 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in the Cilek case from the Seventh Circuit, which is cited in our brief, the court there cited statistics that suggested it was between 1.2 and 1.7 percent of funds in IRA's were removed early under the penalty process.
03-1407 +++$+++ 3623 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the -- the payment here -- it says -- the statute uses the word payment. So suppose you simply have an IRA plan but you don't take money out of it. Then is it exempt from bankruptcy?
03-1407 +++$+++ 3624 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be because it's the right to the future payments and not just the present payments, Justice Breyer.
03-1407 +++$+++ 3625 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so -- but I'm trying -- what I'm trying to figure out is if a person were to take -- just reading it in English, it sounds as if a person were to take the plan out before he's 59 and a half and pay the penalty, that that amount that he took out would not be a -- a payment because of age, but one that he took out after he's 59 and a half and didn't pay the penalty would be.
03-1407 +++$+++ 3626 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Justice Breyer. But in order to protect the ability to take money out after someone turns 59, you have to protect the corpus of the IRA now because otherwise, when he turns 59 and a half, there won't be any money there for him to take out. And that's why the exemption extends not just to present payments, as the Third Circuit erroneously held, but also to the corpus when it is necessary for the support of the debtor. And I can't emphasize --
03-1407 +++$+++ 3627 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Karlan, let me ask something about that very point because the statute says that to the extent reasonably necessary for the support of the debtor it's allowable.
03-1407 +++$+++ 3628 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice O'Connor.
03-1407 +++$+++ 3629 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you aware of cases where the bankruptcy court has said, well, you don't need all that money? That's a big plan. You don't need all that. We'll just let you deduct X amount.
03-1407 +++$+++ 3630 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Justice O'Connor. We cite a number of them in both the opening brief and in the yellow brief on pages 19 through -- to 20, I think is where we -- where we talk about --
03-1407 +++$+++ 3631 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can we take this concrete case? Hers was something over $12,000; his, something over $42,000.
03-1407 +++$+++ 3632 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-1407 +++$+++ 3633 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What was the claim here as to -- was part or all of that -- it would be some $54,000.
03-1407 +++$+++ 3634 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The claim was all that all of that was necessary. If I could give an example that I think Justice O'Connor might find instructive here. When a debtor, for example, is 40 years old, they generally require turnover of the entire IRA because people have time to earn the money back again. When the debtor has other retirement savings, for example, in a case from Virginia called Abate, because the person also had a 401(k) plan, they were required to turn over the entire IRA. When a debtor is able to work, even if the debtor is in his or her 50's, courts will often require exclusion of at -- will also require turnover of at least part of the IRA. In this case --
03-1407 +++$+++ 3635 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what do the courts do if they say, well, my client might be ill or something like that? It seems to me --
03-1407 +++$+++ 3636 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if the client is ill now, they get to keep it --
03-1407 +++$+++ 3637 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, no. They -- they say my client is able-bodied now, but we -- we need something because -- I don't know -- there's a history of family illness or something.
03-1407 +++$+++ 3638 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There isn't a reported case that talks about the possibility of future illness as a reason of exempting the money.
03-1407 +++$+++ 3639 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's -- I'm trying to figure out how -- how -- what the theory is. Is -- you say I have a right to receive payments because of age. And you say, well, here I have a body of money and 99 percent comes out of it after you're 60. 1 percent comes out before. So it's very tempting to say that that corpus there, of course, is a body of money that you're going to have a right to receive because of age because the practical effect of the 10 percent is -- is -- stops the -- the younger person getting the money. So does the case then turn on that? I mean, suppose -- suppose it were a 3 percent penalty and 40 percent of the people took out the money before they were 60 or a 1 percent penalty and 80 percent did it. Then should I reach the other result? I'm just trying to think of how does this analysis work. What's the right analysis?
03-1407 +++$+++ 3640 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would say at the 1 percent and 80 percent of the people are taking the money out, it wouldn't operate really as a retirement plan anymore. But if I can give another statistic that might be helpful in thinking about this. 18 percent of the participants in large 401(k) plans who are under the age of 50 are taking loans out against those plans today.
03-1407 +++$+++ 3641 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What percent?
03-1407 +++$+++ 3642 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ 18 percent in one of the surveys. And yet, those plans are undeniably, absolutely exempt under the bankruptcy --
03-1407 +++$+++ 3643 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, they're taking out loans against it. They're -- they're not withdrawing the money.
03-1407 +++$+++ 3644 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but the loans because -- for example, in the Federal thrift savings plan, the interest is being paid back into your own account, it's essentially as close to taking out the money as you can get.
03-1407 +++$+++ 3645 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I still don't have your answer to the problem that bothered me at the first. How -- how do you reconcile your positions with on account of language? If the -- if your clients can take the money -- just take the money out of the IRA at any time, then why is it on account of age?
03-1407 +++$+++ 3646 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it's not the -- if you look at the statute -- and let me just work my way through it with you. It's the right to a payment under a stock bonus, profit-sharing, annuity, or similar plan on account of illness. And the question is what does on account of modify there. I think the most natural and sensible reading of the statute is a plan that is because of age, a plan that is because of disability, and the like.
03-1407 +++$+++ 3647 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you say that payment doesn't -- on account of doesn't modify payment.
03-1407 +++$+++ 3648 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't -- I don't think you need to read it that way, and I think the most sensible reading here, especially given that the statute --
03-1407 +++$+++ 3649 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I -- I think the logical reading is that it -- it modifies payment.
03-1407 +++$+++ 3650 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I'm not sure that it does, but even if it did, Your Honor --
03-1407 +++$+++ 3651 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Holistic for me. What -- what does it -- what does it modify? I mean, if you had to diagram it, on account of goes to what noun?
03-1407 +++$+++ 3652 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this is again -- I know you dissented yesterday, but this is a less than meticulously crafted statute.
03-1407 +++$+++ 3653 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. I thought I was being holistic yesterday, to tell you the truth. (Laughter.)
03-1407 +++$+++ 3654 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay. Okay.
03-1407 +++$+++ 3655 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But --
03-1407 +++$+++ 3656 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
03-1407 +++$+++ 3657 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- but what does on account of modify?
03-1407 +++$+++ 3658 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think what on account of modifies here is the kind of plan out of which the payment is coming.
03-1407 +++$+++ 3659 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where -- where is that noun?
03-1407 +++$+++ 3660 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are a variety of plans, stock bonus, pension --
03-1407 +++$+++ 3661 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The right to receive a payment under a stock bonus, pension --
03-1407 +++$+++ 3662 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-1407 +++$+++ 3663 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- profit sharing, annuity, or similar plan or -- or contract. It's a plan on account of illness, an annuity?
03-1407 +++$+++ 3664 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Plans --
03-1407 +++$+++ 3665 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why -- why isn't it a right on account of?
03-1407 +++$+++ 3666 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's the right on account of.
03-1407 +++$+++ 3667 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think you can read it either way and you'll get to exactly the same result. So let me read it the way that you've been reading it, which is if you want to protect the ability of people who have IRA's to withdraw money on account of age, you have to protect the IRA now or there will be no money in it for them to exercise their right to withdraw on account of age.
03-1407 +++$+++ 3668 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but -- but there still is a right to take payments at any time.
03-1407 +++$+++ 3669 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice -- Justice Kennedy, we don't believe --
03-1407 +++$+++ 3670 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so then you're -- you're --
03-1407 +++$+++ 3671 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that that's actually a right.
03-1407 +++$+++ 3672 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Under that, you're giving the -- the language that follows it no meaning.
03-1407 +++$+++ 3673 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Kennedy, I don't think that's what I'm doing here, and the reason I don't think that's what I'm doing is because this statute clearly refers to IRA's by name as one of the plans that's entitled to exemption.
03-1407 +++$+++ 3674 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But as purely English -- as purely English, I read it as saying it's a right. What is that right? The right is a right to receive a payment on account of age. That's the -- a plan. That's the right. Now, your argument, I take it, was -- is that yes, it's true you also have a right under certain conditions to take it without respect to age. So what we have here is a plan that gives you both kind of rights.
03-1407 +++$+++ 3675 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
03-1407 +++$+++ 3676 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's a kind that gives you a right to take it with a penalty and a right to take it because of age without a penalty. And thus, the question is, is that kind of plan which gives you both kind of rights covered? And the language doesn't answer it. So --
03-1407 +++$+++ 3677 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But under Justice Breyer's hypothetical, that's just like a savings account.
03-1407 +++$+++ 3678 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
03-1407 +++$+++ 3679 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
03-1407 +++$+++ 3680 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, because the savings account doesn't have -- I mean, the savings account doesn't have the -- the penalty. Isn't your argument that you've got to read the right as meaning a right without penalty, because if you don't read it that way, then every one of these other retirement instruments is likewise going to fail? Isn't that your -- your strong point?
03-1407 +++$+++ 3681 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's your strong point.
03-1407 +++$+++ 3682 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. That's -- that's our strong point and we're sticking with it. (Laughter.)
03-1407 +++$+++ 3683 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right. Right -- it's not a right if you have to pay a penalty for it.
03-1407 +++$+++ 3684 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. It's not a right, as we say in the reply brief, to park on the sidewalk because if you pay the parking ticket, you can park there.
03-1407 +++$+++ 3685 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
03-1407 +++$+++ 3686 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I think no matter how --
03-1407 +++$+++ 3687 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's a good argument. I like that.
03-1407 +++$+++ 3688 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. (Laughter.)
03-1407 +++$+++ 3689 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No matter how you read the statute, it's designed to cover IRA's, and any reading of the statute that ends up not covering IRA's will also not cover many of the other --
03-1407 +++$+++ 3690 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why didn't Congress just put in IRA's along with the other things?
03-1407 +++$+++ 3691 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They did, Justice Ginsburg. They did in the last line of the statute.
03-1407 +++$+++ 3692 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but that's sort of an oblique way to get it there. I mean, why didn't they put it together with the other string of plans?
03-1407 +++$+++ 3693 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, my best guess as to why they didn't do that is they started drafting the exemptions statute in 1973 and they enacted IRA's in 1974, so they stuck it in at the end of the list. That's my best guess.
03-1407 +++$+++ 3694 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What --
03-1407 +++$+++ 3695 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What your -- what your opponents say is that the -- the thing at the end doesn't prove anything because they're willing to acknowledge that some IRA's can be so structured that you cannot withdraw until -- until you reach a certain age. And if they're structured that way, they would be covered. So you had to mention 408 in the -- in the exceptions. What's wrong with that argument?
03-1407 +++$+++ 3696 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what's wrong with that, Justice Scalia, is that all IRA's are designed and they're administered on forms that the Internal Revenue Service sets out and you buy the forms to allow for early withdrawal. So under their theory, there has -- there is not now and there has never been a single IRA anywhere in the United States --
03-1407 +++$+++ 3697 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well --
03-1407 +++$+++ 3698 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that had that inability to take the money out subject to penalty prior to the age 59 and a half.
03-1407 +++$+++ 3699 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do -- do we know that? I mean, couldn't someone -- I -- I don't think this is a very plausible basis for construing the statute, but just as a technical matter, couldn't someone go to the bank or brokerage firm and say I want to set up an IRA, but I want the IRA to be, in -- in effect, like an irrevocable trust in which withdrawals can only be made on certain, specific conditions? And couldn't someone, using both the IRA mechanism and a State irrevocable trust document, create an IRA that would be as restricted as -- as the circuit suggested it might be?
03-1407 +++$+++ 3700 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't necessarily think so for the following reason. IRA's are off-the-rack products. They're a basic consumer product that 40 million people buy. People don't usually negotiate the terms. If you did negotiate the terms, though, here's the second problem. Anytime you deviate from the form that the Internal Revenue Service gives you, which also gives you these rights to withdraw early subject to penalty, you run the risk that your plan will then be held to be a nonqualifying plan under section 408 of the tax code. You then lose the ability to deduct the contributions going in. You then lose the ability to defer the payments on the income as it accrues in the account. Now, to answer the last part of your question, one of the things that has occurred over the last, say, 5 to 10 years is more and more States are passing laws that essentially protect IRA's in bankruptcy and out, as a matter of State law, from any attachment by creditors. Why do they do that? Because they recognize that IRA's are a fundamental piece of the retirement system today.
03-1407 +++$+++ 3701 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And some don't. And the -- and the State systems vary.
03-1407 +++$+++ 3702 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, but only four States offer no protection to IRA's from creditors as opposed to --
03-1407 +++$+++ 3703 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ As opposed to how many who do?
03-1407 +++$+++ 3704 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ 46 States offer some kind of protection. 23 States protect them without limit in bankruptcy and out. 6 of them protect them inside of bankruptcy using the State exemptions as long as the amount is reasonable and necessary for the debtor's support.
03-1407 +++$+++ 3705 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's what -- with the purpose that we're talking about now --
03-1407 +++$+++ 3706 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
03-1407 +++$+++ 3707 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- if it's only 6 that, faced with a bankruptcy, would shelter the IRA.
03-1407 +++$+++ 3708 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. No. 23 of them would protect all IRA's. 6 would protect all IRA's if the money in them is necessary to the debtor's support, an additional 6. 6 more would protect all the money in an IRA as long as it was deposited 120 days or a year or 3 years before the debtor filed for bankruptcy. 3 of them will protect all IRA's up to a dollar amount. In Nevada, the dollar amount is $500,000. 8 States use, as their State exemption law, an IRA that -- a statute that has exactly the same language as the Federal statute. 6 of those State statutes have been interpreted by Federal courts to protect IRA's.
03-1407 +++$+++ 3709 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But here there was no choice of picking up on the State?
03-1407 +++$+++ 3710 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's a -- there's a weird anomaly in Arkansas, Your Honor, which is Arkansas law does, in fact, protect IRA's, but the Federal bankruptcy courts in Arkansas have interpreted that law only to protect the IRA up to $500 because of a provision in the Arkansas constitution, article 9, section 2, that means that you can only save up to $500. So any bankrupt person in Arkansas who wants to keep any money in his -- in his IRA has to elect the Federal exemptions rather than electing the State exemptions.
03-1407 +++$+++ 3711 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And one train that we didn't finish before. You were explaining that in this case the entire $55,000 -- that entire sum would be needed -- would be necessary for the support of the debtors.
03-1407 +++$+++ 3712 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. The bankruptcy court did not rule on our claim that it was all reasonably necessary because they decided first that IRA's didn't come within the meaning of section 522.
03-1407 +++$+++ 3713 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you -- that was your claim, and I --
03-1407 +++$+++ 3714 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-1407 +++$+++ 3715 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How did you come to that conclusion, that the entire amount?
03-1407 +++$+++ 3716 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if you take, say, $55,000 and you ask what sort of annuity could you purchase when you hit age 59 and a half with that money, it will be an annuity that, I would guess -- you know, I -- I hate to do math in my head like this. I'd guess it would throw off a couple of hundred dollars a month in additional income. And so if you ask will the Rouseys need that money for their support, I think the answer is yes because their only other support --
03-1407 +++$+++ 3717 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well. Oh, yes.
03-1407 +++$+++ 3718 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- is Social Security and a $2,000 a month defined benefit plan that will never go up and against which their Social Security will be offset. So when they start becoming eligible, as Mr. Rousey is about to be, for Social Security, that defined benefit plan reduces their benefits. So if the Rouseys are to have an old age in which they can afford to live in any kind of reasonable circumstance at all, they need this money.
03-1407 +++$+++ 3719 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I go back and just nail down one lose end in -- in an answer that you -- you gave to my question, can you set up a kind of irrevocable? I assume clearly from what you say is that there is not only no statute, but no IRS reg or ruling to the effect that you can make your IRA terms more restrictive without jeopardizing your qualification.
03-1407 +++$+++ 3720 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I was unable to find one, Your Honor.
03-1407 +++$+++ 3721 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
03-1407 +++$+++ 3722 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd like to reserve the remainder of my time.
03-1407 +++$+++ 3723 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why didn't the Government come in here, just as a matter of curiosity? We don't have an amicus brief here from the Government, do we?
03-1407 +++$+++ 3724 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- no, we do not have one, and I don't --
03-1407 +++$+++ 3725 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The Government has no position on the matter.
03-1407 +++$+++ 3726 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I don't think they've taken a position here. I will say that in Patterson against Shumate, they referred to IRA's in a footnote in their brief, I believe, as pension plans under section 408.
03-1407 +++$+++ 3727 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There -- they never go bankrupt, so the position they usually take is against any exemption from the -- (Laughter.)
03-1407 +++$+++ 3728 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well -- well, that's correct. The United States trustee may have wanted them to -- I'd like to reserve the remainder of my time.
03-1407 +++$+++ 3729 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. McKiever.
03-1407 +++$+++ 3731 +++$+++ FALSE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, may it please the Court: Pursuant to section 522(d)(10)(e) of the Bankruptcy Code, a debtor's right to receive a payment is not exempt unless two requirements are met. First, the right to receive the payment must be on account of illness, disability, death, age or length of service, and the right must come from a specified similar plan or contract. Because neither of those elements is satisfied in this case, the petitioners' IRA's are not exempt.
03-1407 +++$+++ 3732 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it -- is it the case that other plans that are clearly covered by the text of this statute also permit early withdrawal for certain reasons?
03-1407 +++$+++ 3733 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes and no, and let me explain that. Yes, they do permit withdrawals based upon certain factors. Those are enumerated based -- based upon each individual plan. However, they do not permit withdrawals for any reason at any time for any purpose.
03-1407 +++$+++ 3734 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Not a single one of them.
03-1407 +++$+++ 3735 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not a single one of them. Now, of course, I've not read every plan ever created, but none of the plans that I have ever seen, as the specified plans, the pension plans, the profit-sharing plans, any of those, allow withdrawal for any reason at any time.
03-1407 +++$+++ 3736 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you'd say that if one of them did, it would also not be covered.
03-1407 +++$+++ 3737 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. It -- it is thought --
03-1407 +++$+++ 3738 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what --
03-1407 +++$+++ 3739 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I take it -- in -- in answering Justice Scalia, I take it from what you didn't say that none of the -- we'll call them kind of the paradigm example plans are, however, as -- as restricted as the language in this -- this statute would suggest that it had to be if you read it in a -- in a very literal way.
03-1407 +++$+++ 3740 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are --
03-1407 +++$+++ 3741 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In other words, they're all a little bit sinful, at least, even if they're not as sinful as -- as you say the -- the 401 -- the -- the IRA is.
03-1407 +++$+++ 3742 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that is correct. The -- there probably are plans out there -- once again, there are so many plans. And those are created by financial institutions, by employers, by different entities. So therefore there are thousands of variations of those.
03-1407 +++$+++ 3743 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, why? Okay. Once you're down that road, you have conceded, as you must, that a plan that says you get the money because of age but you also can get the money without respect to age in certain circumstances can be a plan covered by the act. Now, that's the kind of a plan that's right in front of you. So, therefore, literally it falls just as much within the language as the other that you want to say even though that is literally true, this plan is very different from the others in terms of the purposes of the act. That's what I would like to hear because to me, I'm not so moved by holistic as I am by purposes, which is part of holistic. So -- so the -- the point that I would like to know is why, since ordinary people think of IRA's as pensions -- I do. I think of it that way. I don't know much about it. It's designed to help in the future, help when you're old and sick. But there is this extra thing in it which you point to. So why, in terms of purposes is this different from the others?
03-1407 +++$+++ 3744 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This is different because this is the only kind of plan where you can access the funds at any time for any purpose. It is also --
03-1407 +++$+++ 3745 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I know that, but -- but -- and you do it with a penalty. We agree about the facts.
03-1407 +++$+++ 3746 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
03-1407 +++$+++ 3747 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I want to know why that difference makes a difference in a world where only 1 or less 2 percent of the people do access it before they're 60, 59 and a half.
03-1407 +++$+++ 3748 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the right to -- to receive the payment, the right to access the money at any time exists no matter if it is exercised or not, and it does not meet the language of the statute. The statute very specifically --
03-1407 +++$+++ 3749 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. I -- you've missed my point and I'm sorry. I put you on the wrong track with my following up. I shouldn't have.
03-1407 +++$+++ 3750 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. Yes.
03-1407 +++$+++ 3751 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ My question is we all agree that there can be plans where you can get the money not having to do with age, and they fall within the language of the act, and indeed, you say some are covered. But this one you say is worse than the others in terms of the purposes of the act, and that's what I want to hear why.
03-1407 +++$+++ 3752 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because there is no causal connection between any of the factors that are enumerated in the statute and the right to receive the money. And that is --
03-1407 +++$+++ 3753 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I --
03-1407 +++$+++ 3754 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask this question? Supposing instead of a 10 percent penalty, there was an absolute prohibition, would you agree -- on getting the money before you're 59 and a half, would then that qualify?
03-1407 +++$+++ 3755 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, yes, it would.
03-1407 +++$+++ 3756 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, what if there were a 50 percent penalty?
03-1407 +++$+++ 3757 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Clearly, there's a point at which it would qualify as a prohibition more than just --
03-1407 +++$+++ 3758 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what is it that makes it a prohibition? Is it -- is it because the purpose is to deter withdrawals, or it is that it becomes economically unacceptable? What -- what is the reason for drawing the line somewhere above 10 percent?
03-1407 +++$+++ 3759 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The reason for drawing the line is because at 10 percent, as the Eighth Circuit has stated in -- in the Huebner case, it -- it said that it's a minimal penalty. However, there is still the unfettered access that's available.
03-1407 +++$+++ 3760 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what is the purpose of imposing any penalty at all?
03-1407 +++$+++ 3761 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would assume as a disincentive to -- to withdraw, but it's clearly not a prohibition, such as the -- the parking --
03-1407 +++$+++ 3762 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But 50 percent would not be a prohibition and neither would 90 percent.
03-1407 +++$+++ 3763 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would not be a prohibition, but it would operate more as a prohibition than 10 percent.
03-1407 +++$+++ 3764 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it's a matter of degree rather than a difference in kind.
03-1407 +++$+++ 3765 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Clearly that -- it's a very difficult line to draw. I -- I can't make that call at this moment, but --
03-1407 +++$+++ 3766 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems to me the easiest black letter rule is no tax or some tax. I mean, if it was totally free like an ordinary bank account, then you'd be dead right. But the fact that for a -- an important purpose there is a 10 percent penalty put in seems to me puts it into the category of things that are -- you're not supposed to have an absolute right to get.
03-1407 +++$+++ 3767 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the -- the hallmark difference here is that it -- it is the only type of account that you can access paying the penalty for any reason --
03-1407 +++$+++ 3768 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I assume --
03-1407 +++$+++ 3769 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- regardless of the specified reason.
03-1407 +++$+++ 3770 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that -- that your answer to Justice Breyer as to why that makes a difference with regard to the purpose of the statute is that the purpose of the statute is to make sure that people have money for their retirement, and that if you can withdraw it for any reason whatever, there is no security that that money will be there for their retirement; whereas if you limit the reasons to sickness and -- and a certain other number of emergency reasons, the chances the money will be there for the retirement are much higher.
03-1407 +++$+++ 3771 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that -- that's --
03-1407 +++$+++ 3772 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't that the answer?
03-1407 +++$+++ 3773 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if that's the answer, excellent. So now we have -- (Laughter.)
03-1407 +++$+++ 3774 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- let's say --
03-1407 +++$+++ 3775 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Scalia.
03-1407 +++$+++ 3776 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's try -- let's try a million percent tax and nobody in history has ever withdrawn the money. Now, would -- that you would say would fall within this.
03-1407 +++$+++ 3777 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1407 +++$+++ 3778 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Fine, yes.
03-1407 +++$+++ 3779 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1407 +++$+++ 3780 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Now, if that would fall within this, going back to Justice Stevens, because that operates as a bar to prevent the bad world that Justice Scalia mentioned, why doesn't a tax that operates as a bar that's good enough to stop 98.5 percent of the people from withdrawing their money and having nothing left for old age -- why isn't that just as good as the million percent tax in a world that is imperfect?
03-1407 +++$+++ 3781 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because clearly the -- the access of money and the ability to use it prior to retirement, just as -- as Justice Scalia just stated, that allows the -- the debtors to -- to access freely for any purpose, clearly not showing that -- that it would be for retirement purposes.
03-1407 +++$+++ 3782 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But attachment of the --
03-1407 +++$+++ 3783 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right, but it's acquired. Say -- say retirement, not old age. I mean, you know, 60 -- it's not that bad -- (Laughter.)
03-1407 +++$+++ 3784 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ 93.
03-1407 +++$+++ 3785 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If -- if that is going to be your criterion, the -- the total freedom for any purpose, then why, if we accept your argument, why -- why don't we face sort of a daunting run or the courts face sort of daunting future? Because the -- the question then is going to be, well, what purposes are sufficiently close to old age to -- to allow for a continued exemption and how free may the purposes be before a plan falls into the IRA category. You told us a few moments ago -- and I'm sure you -- you were right -- that the kind of the paradigm example plans vary enormously depending on the terms in which employers set them up. So if -- if we say that the -- the dividing line is going to be between plans under which withdrawal can be for any purpose versus plans in which withdrawal is going to be somehow limited, then we're going to have to litigate an awful lot of plans. Aren't we?
03-1407 +++$+++ 3786 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not necessarily. The -- the line that we're really looking to is that there has to be a direct causation factor between one of the five specified factors such as on -- on account of factors, age, disability, death, length of service, and the right to receive the payment.
03-1407 +++$+++ 3787 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but typically these plans like 401(k) plans permit hardship withdrawals, and other plans that are mentioned in the act allow withdrawals for medical reasons or to buy housing or something like that. I mean, you -- we would just have endless cases trying to figure out what qualifies and what doesn't. It seems like such a hard line for you to try to draw here.
03-1407 +++$+++ 3788 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1407 +++$+++ 3789 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And every plan that I know of allows withdrawal if you terminate employment.
03-1407 +++$+++ 3790 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that's typically --
03-1407 +++$+++ 3791 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In fact, that's what happened to these people. So I just don't see how your argument is going to --
03-1407 +++$+++ 3792 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- the ability to access the funds, oftentimes with termination, has to do with the length of service, the years in service because they accumulate and oftentimes are not payable at the full percentage. They're not fully vested until that time. Also, with the -- when there are multiple factors existing in the right to receive the payments, each multiple factor can be a cause of the -- of the ability to reach the money. When there are no meaningful factors imposed, though --
03-1407 +++$+++ 3793 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't it simpler to just recognize that these plans are covered despite the right to withdraw and then rely on the provision in the statute that only permits the deduction to the extent reasonably necessary for the support? I mean, that -- that seems to me a fall-back position that's provided for in the statute.
03-1407 +++$+++ 3794 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand that -- that may appear to be correct, but the problem with that is that as -- taxpayer status is not the hallmark in this case of if it is or is not exempt. Therefore, all types of accounts, whether they are truly retirement accounts or -- or if they're just savings accounts, could potentially qualify under this statute. If -- if you want to open it up and -- and allow all kinds of accounts to be exemptible under 522(d)(10)(e), the problem is that there is no limit on what can be potentially exempt under that statute.
03-1407 +++$+++ 3795 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. Well, obviously, it's -- it's governed by the statutory provision that it has to be a stock bonus, pension, profit-sharing, annuity, or similar plan or contract on account of, and so on.
03-1407 +++$+++ 3796 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
03-1407 +++$+++ 3797 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it includes IRA's apparently because of the last provision in the statute referring back to individual retirement acts under section 408 of the Internal Revenue Code.
03-1407 +++$+++ 3798 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The section 408 reference is -- does not in any way expand the exemption. In fact, it is a further condition to place on the -- the exemption. First of all, section 408 sets out only the minimum requirements for an IRA to qualify as a -- as a tax-favored plan. That --
03-1407 +++$+++ 3799 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. -- Ms. Karlan says she doesn't know of any -- of any IRA that did place a -- a restriction which would bring it within that exemption even though the ordinary IRA wouldn't be within the exemption. Do you know of any IRA, a single IRA that -- that has a provision in it restricting withdrawal?
03-1407 +++$+++ 3800 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely. Those are customizable plans. Any person can go into --
03-1407 +++$+++ 3801 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They can, but do -- do you know that there's -- there's one out there? I don't know --
03-1407 +++$+++ 3802 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I do know of several out there.
03-1407 +++$+++ 3803 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You didn't just draw one up for this case, did you? (Laughter.)
03-1407 +++$+++ 3804 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I did not create one for this case. No, I did not. But they -- they definitely exist. In fact, in the Andersen case out of the Eighth Circuit Bankruptcy Appellate Panel, the debtor had an annuity and prior to the filing of the bankruptcy petition, she elected that she would only receive periodic payments based upon her age, and that was found to be exempt by the Bankruptcy Appellate Panel because that qualified. The payments were based upon her age, and it was then a similar plan because she could not access the funds at any time but only for the specified reason such as age.
03-1407 +++$+++ 3805 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was that -- was that an IRA that she had? It was an IRA?
03-1407 +++$+++ 3806 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My understanding is, yes, it was under section 408(b) was -- that's my understanding based upon that case.
03-1407 +++$+++ 3807 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me -- let me ask you. Maybe this is irrelevant, but were -- were these restrictive IRA's that you're aware of set up under those terms in contemplation of bankruptcy? If the answer is no, why would anyone so restrict his -- his IRA?
03-1407 +++$+++ 3808 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I do not know if that one specifically was, but no. These have not been set up through --
03-1407 +++$+++ 3809 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But why -- why would anyone do that? They're -- they're qualified without these restrictions. Why would anyone want to cut off his -- his rights to -- to withdraw?
03-1407 +++$+++ 3810 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Clearly to protect the money potentially for retirement and -- and just as --
03-1407 +++$+++ 3811 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In other words, like setting up a personal spendthrift trust?
03-1407 +++$+++ 3812 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
03-1407 +++$+++ 3813 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I want to make it tough so that I -- I will not be tempted to withdraw. Is that the motivation?
03-1407 +++$+++ 3814 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that would potentially be a motivation because clearly the money is there readily accessible at any time to -- to buy anything that the debtor chooses throughout their life. So someone who's 30 or 40 years old can liquidate their -- their IRA account, whereas with a pension or profit-sharing plan, they don't have that kind of access --
03-1407 +++$+++ 3815 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Should we put any weight on the title, on the name? I mean, I -- I can't but thinking it's an individual retirement account. Was Congress trying to fool people? (Laughter.)
03-1407 +++$+++ 3816 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was the Federal Trade Commission? Should they investigate? What -- I mean, the -- the -- I think of it as an account that's basically aimed, at least Congress thought it was aimed, at retirement, which has usually to do with age.
03-1407 +++$+++ 3817 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- the name is clearly not determinative. Also, Congress in the -- in the --
03-1407 +++$+++ 3818 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm reading the statute and if I were voting on it and put in the 408 reference and think of the word individual retirement account, is there any -- I would have thought, knowing not that much about it, that of course, they'd be included. Now, is there any indication, when people passed this, that they didn't think they would be? Any -- any reference in the terrible words, legislative history, that might shed light on it?
03-1407 +++$+++ 3819 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. First of all, Congress did historically reject, first of all, just tax-favored status overall, such as what an IRA account is. An IRA account is set up just for tax-favored status. Congress set forth, instead, the (d)(10)(e) -- 522(d)(10)(e) requirements that -- that are much more stringent in the requirements of the traditional IRA.
03-1407 +++$+++ 3820 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, are they? Because there was one statement -- I think it was in Ms. Karlan's brief -- that the Fifth Circuit said profit-sharing plans permit participants to withdraw up to the entire amount on payment of the penalty. So a profit-sharing plan, which was one of the ones on the list, seems to be substantially identical if you can also take out, whenever you like, as long as you're willing to pay the penalty.
03-1407 +++$+++ 3821 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's a misnomer that that's a -- a right to payment. That is rather the right to borrow as a loan. And a loan is very different than a right to payment. They have the right to borrow the funds. However -- for example, in the New York Police Department pension plan, which she referenced in the reply brief, the police officers can borrow up to 90 percent of their pension plan funds. However, they -- as long as they're employed there, they have to continue to repay that.
03-1407 +++$+++ 3822 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what if they don't repay it? What's the sanction?
03-1407 +++$+++ 3823 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is a 10 percent penalty. However, as the bankruptcy --
03-1407 +++$+++ 3824 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what -- where -- where would the -- where would the principal repayment come from? I assume it would come from deducting whatever the balance was from the -- the person's account.
03-1407 +++$+++ 3825 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would be correct.
03-1407 +++$+++ 3826 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, we call it -- the -- the loan feature then boils down to a -- a withdrawal subject to a periodic repayment obligation, but if that obligation is not satisfied, the bottom line will be exactly like a withdrawal because they will simply deduct whatever the balance is from the person's rights under the plan.
03-1407 +++$+++ 3827 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Plus 10 percent you say.
03-1407 +++$+++ 3828 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. However --
03-1407 +++$+++ 3829 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it's just -- just like an IRA.
03-1407 +++$+++ 3830 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but this is in the bankruptcy context, which makes it completely different. The bankruptcy filing of a chapter VII bankruptcy is a picture in time. At the time that the debtor files the bankruptcy petition, you look to the assets that the debtor has possession of and the interest that the debtor has at that moment. There's also, for some things, a 1-year look-back period. But because it's a picture in time, it's what the -- the debtor can reach is what the -- the bankruptcy trustee looks to, the types of assets that -- that the debtor owns. This is very different than the pension plan which, of course, the debtor could not have -- have exhausted to pay the creditors prior to filing the bankruptcy, but any other type of account would be there, would be present at the retirement. But because they could have liquidated their IRA's to pay off their creditors prior to filing the bankruptcy, the bankruptcy trustee steps into the shoes of that debtor and has the ability to reach the funds that the debtor can potentially reach. There are other exemptions, of course, set forth in -- in section 522(d), you know, for a home or jewelry, but the assets that are not exempt are readily available to repay creditors, for -- for the benefit of the creditors. Therefore, that -- that makes it significantly --
03-1407 +++$+++ 3831 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Subject to the 10 percent if the bankruptcy trustee does that?
03-1407 +++$+++ 3832 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. That's correct.
03-1407 +++$+++ 3833 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The -- the penalty still has to be paid even if it's the trustee who takes money out to pay the creditors, on your view.
03-1407 +++$+++ 3834 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. Yes, they do. They do. Additionally, the petitioners' IRA's are -- by allowing unfettered access, are unlike any of the other plans because the petitioners' standard IRA is much more like a savings account. It's not any form of deferred compensation. They can't look to that to fill a salary void after they retire because the money may not be there. Unlike in the pension plans or a profit-sharing plan, they could have liquidated those funds prior to their reaching any age or any illness that -- that may befall them.
03-1407 +++$+++ 3835 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there -- there is no penalty attached to withdrawing from a savings account, and there's also no limit on the annual contribution.
03-1407 +++$+++ 3836 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. That is correct. That is correct. But the -- the key here --
03-1407 +++$+++ 3837 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me just get -- get straight what -- what the -- what the universe of plans we have in front of us here. Do you assert that there are no other plans, clearly covered by this statute, that permit withdrawal for any reason but with a penalty?
03-1407 +++$+++ 3838 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. None of the specified plans listed, the -- the ones enumerated.
03-1407 +++$+++ 3839 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would permit withdrawal for any reason whatever provided that a penalty is paid.
03-1407 +++$+++ 3840 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
03-1407 +++$+++ 3841 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ None of them is like that.
03-1407 +++$+++ 3842 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ None of them is like that. They all have specific factors. There has to be a causal connection between the ability to access the money. Additionally, it's very important that -- that an account or plan that qualifies under the statute -- it has to be determined on a case-by-case basis. And there's no question that there are definitely IRA's that -- that could and do qualify for this exemption. It is, instead, that --
03-1407 +++$+++ 3843 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do -- do you disagree with Ms. Karlan that this is -- this is a standardized product so the people, the Rouseys of this world, really couldn't get a tailor-made IRA? They would have to take the standard product.
03-1407 +++$+++ 3844 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's not -- that's not correct. There are many customizable products that are -- are out there. In fact, for example, when employers set up different kinds of plans for their employees, they go and they can choose from many different options. For example, they can choose if they even have a -- a loan provision built into a -- a 401(k) or a pension plan, just like the IRA. They -- they can be customized because section 408 only sets forth the minimum requirements for it to qualify for tax-favored status. That -- that is an Internal Revenue Code section, and it does not in any way prohibit additional factors being placed into the plan. Rather, it allows the -- the individual or the employer because some -- there are two different types of IRA's that can be set up by an employer -- to go and customize those so that they could potentially meet the statutory requirements.
03-1407 +++$+++ 3845 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ These -- these other plans that allow you to withdraw for certain reasons but not for any reason -- what happens if you withdraw for any reason?
03-1407 +++$+++ 3846 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That --
03-1407 +++$+++ 3847 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is the sanction against -- I mean, you just go in. You withdraw the money for -- for a reason that is not allowed by the employer plan. What -- what is the sanction?
03-1407 +++$+++ 3848 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My understanding is that -- is that you cannot access the funds for a reason not allowed by those plans, that that is prohibited. And that -- that is similar to Ms. Andersen's IRA in the Bankruptcy Appellate Panel case. She could no longer reach the funds in the -- she could no longer reach the corpus of the account. The -- the lump sum of money was there for her retirement years. Whereas, in the IRA situation, the money is not protected at any time. There's no prohibition at all whatsoever on withdrawing the funds from the account other than the payment of the penalty. But whether an account or plan qualifies under the statute, it -- it -- you look at the language of the plan on a plan-by-plan basis. The petitioners' argument renders the terms of the statute superfluous because, first of all, it is dissimilar from the enumerated plans, and secondly, it is not on account of any factors that the money can be reached. The right to receive the payment is not based upon any factor other than the -- the account holder wanting to withdraw the funds.
03-1407 +++$+++ 3849 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The right to receive 100 percent is -- is dependent on a factor, isn't it?
03-1407 +++$+++ 3850 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, it is.
03-1407 +++$+++ 3851 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. At least as to the 10 percent that would be penalty, there's no right to get that money unless you have a certain age.
03-1407 +++$+++ 3852 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. Unless you have -- or another factor such as for education or for a home loan, something like that. There are several different reasons that you can -- you can reach the money and not pay a penalty. However, the penalty is not -- is not the deciding factor. It's their ability to access the funds at any time that -- that makes that a right of payment. It's not a right of payment without a penalty. It's just that the right to payment exists at all times.
03-1407 +++$+++ 3853 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't dispute that -- that it's a very small percentage of people who have IRA's, in fact, exercise the right to withdraw, given the penalty.
03-1407 +++$+++ 3854 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that -- that is -- appears to be correct. I don't have those exact statistics, but yes, that -- that appears to be correct, that they have -- that they may not exercise that at -- in great numbers. First of all, going back to the causation factor about the -- the ability of the debtors to withdraw the funds for any reason or no reason, this Court in the 203 North LaSalle case determined that on account of must mean because of, and that -- that is a key point here because if the debtors can reach the funds for any reason, it is not because of any other factor. And in the LaSalle case, this Court found that that reading, the because of reading, absolutely applies to this section of the -- the Bankruptcy Code, that means that the result is that a direct causal connection is required between the right to receive the payment in the on account of requirements. In -- in this case there is no causal connection whatsoever between the right to receive the payments and -- and any of the factors enumerated in the statute.
03-1407 +++$+++ 3855 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The words, on account of, in this -- this statute are sort of unusual, no matter how you construe them, because really the payment is on account of the years of service or it's on account of a lot of things. You may become eligible at a certain time. It would be better if it said a payment for which you became eligible for one of these reasons because the payment isn't really on account of all of these things. You may get the same amount whether you're disabled or not depending on what the terms of the plan are.
03-1407 +++$+++ 3856 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. There are, of course, always some other factors, such as you have to first deposit the money, you have to become eligible. But once those barriers are passed, then -- then the right to receive the payment has to be at least -- one of the causes must be one of these factors. And it has to be enumerated in the plan. It cannot be for any reason, but must be an enumerated reason in the plan. And the -- with the penalty, only the avoidance of a penalty is based upon the -- the age of the debtor or the -- or any of the factors. It's -- section 522(d)(10)(e) is void of any reference to the tax status or to the right to receive the payment without penalty. It's only the right to receive the payment overall.
03-1407 +++$+++ 3857 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does your argument draw a ring around IRA's? It was suggested that if your argument prevails, then these other plans would be affected as well.
03-1407 +++$+++ 3858 +++$+++ TRUE +++$+++ MS. McKIEVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Only to the extent that -- that they are not payable for any of the reasons enumerated in the statute. If -- if they are available for payment at any time for any reason, then -- then they would not qualify. But the specified accounts, so long as they're payable for -- for one of the factors and that there's a direct nexus between the right to receive the payment and -- and the factors, then -- then they would qualify for the exemption. It is not, by any stretch, all IRA's. It is just the types that -- currently that the petitioners would have or that people would have that would allow the access at any time for any purpose. So it's not that the trustee is looking to have IRA's not be eligible for exemption. It's just the types of accounts from which all the funds can be withdrawn at any time for any purpose. There are many qualifying IRA's that do exist, that can exist. It's just that people have set these up from standard plans allowing them access. Whether they access the funds or not is not the key, but the ability to access the money because it doesn't meet the statutory requirements. There are several IRA's, though, that can and do meet the statutory requirements. It's just that the petitioners' don't. The case law in the Eighth Circuit was well settled, prior to the filing of this bankruptcy, that for approximately 12 years, that the definition of similar plan or contract did not include IRA's such as this, and that the on account of factors had to be satisfied to claim this exemption. The -- the debtors knew or -- or potentially should have known that -- that their IRA's were likely not exempt out of Eighth Circuit at the time that they filed because of the way that -- that these had been construed for a long period of time. So that they could have set up accounts that did qualify for such exemption, but -- but they did not restrict their access in that way. Thank you.
03-1407 +++$+++ 3859 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. McKiever. Ms. Karlan, you have about 7 minutes. You're not required to use it all.
03-1407 +++$+++ 3861 +++$+++ FALSE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm going to retire early. (Laughter.)
03-1407 +++$+++ 3862 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the first point is that there are two rights under IRA's: the right after age 59 and a half or upon death or disability or illness to withdraw the money without any kind of penalty; and there's a second little exercise, an entirely subsidiary right, which is the ability to withdraw money subject to a penalty earlier. The existence of that second entirely subsidiary, almost never used right -- and the statistic on this is in the green brief at page 23 -- means that the real essence of an IRA is it is a plan on account of age. The second point. As this Court said last year --
03-1407 +++$+++ 3863 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You don't really have a right to receive it on account of age. You have a right to receive it without a penalty on account of age.
03-1407 +++$+++ 3864 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, at the age of --
03-1407 +++$+++ 3865 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It isn't the right to receive the money that depends on your age. It's the right to receive the money without paying a tax.
03-1407 +++$+++ 3866 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's a right that's very important because let me give you just a mathematical example of the difference.
03-1407 +++$+++ 3867 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It is a right that's important, but it's not what the statute says. The statute says --
03-1407 +++$+++ 3868 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The statute gives that right.
03-1407 +++$+++ 3869 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the right to receive a payment on account of, among other things, age.
03-1407 +++$+++ 3870 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And you do have that right. You also have another right. But the existence of that second right doesn't negate the first right. The statute doesn't here, for example, as section 522 or section 365 of the Bankruptcy Code does, use the word solely to say you -- a plan is eligible only if you have solely the right to receive on this --
03-1407 +++$+++ 3871 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but it lists the other reasons: on account of illness, disability, death, age, or length of service. And -- and, you know, when you have a list like that, you would think that the right to receive the money for some other reason doesn't -- doesn't qualify. I mean, I would think that that's --
03-1407 +++$+++ 3872 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That might be your first thought, but then --
03-1407 +++$+++ 3873 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or -- or at least -- at least some other reason that isn't closely related to those.
03-1407 +++$+++ 3874 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, but I think even if that were your first thought, you would then get to the implication that many of the Justices have been pressing today, which is the implication of that for all plans is tremendous because all plans give -- well, I shouldn't say all plans, but I should say the vast majority of other plans, 401(k) plans, profit-sharing plans, and the like, do give you early access to your money, and that's valuable to you. That's why in section --
03-1407 +++$+++ 3875 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it true that none of them give unfettered access? They're all qualified in some fashion. Do you agree with that?
03-1407 +++$+++ 3876 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the qualification of hardship has been interpreted by many employers to say, you want to buy a house and you can't otherwise? That's a hardship. You want to sent your kid to school and you can't otherwise? That's a hardship. You have huge, you know, consumer loans and you could consolidate that? That's a hardship. So it's not as if IRA's operate differently from everything else in the system. That's why --
03-1407 +++$+++ 3877 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, yes. You -- you don't have to make up a hardship. You just say I want the money. Okay, you want the money? Here's the money.
03-1407 +++$+++ 3878 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's --
03-1407 +++$+++ 3879 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't even have to lie about the hardship. I mean -- (Laughter.)
03-1407 +++$+++ 3880 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I need the money. I don't have the money. That's a hardship. If you -- if all you have to say is the magic word hardship, I think that's why we would say IRA's are similar plans or contracts because this Court has made it clear similar is not the same thing as identical. So if similar reasons allow you to withdraw, that's enough. And that's why in section --
03-1407 +++$+++ 3881 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In any of these other plans, can you get the money so long as you're willing to pay a penalty?
03-1407 +++$+++ 3882 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As I read the New York City --
03-1407 +++$+++ 3883 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Without any qualification for disability, illness. No. I just want the money. Give me the money and I'll pay you 10 percent. Is there any plan that works like that?
03-1407 +++$+++ 3884 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know, but the New York City Police Department plan appears to work like that. You can take the money out if you pay the 10 percent penalty.
03-1407 +++$+++ 3885 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Has any judge ever taken the view that -- adopting Justice Scalia's approach, that while you can't put the whole IRA -- exempt the whole IRA, but you can exempt 10 percent of it?
03-1407 +++$+++ 3886 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not to my knowledge.
03-1407 +++$+++ 3887 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ At least you ought to get that much, it seems to me, under his -- his analysis.
03-1407 +++$+++ 3888 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We'd be happier with 10 percent than nothing, but no judge has ever read the statute that way. The second point is a point that comes out of this Court's decision last year in the Till case where the Court said, look, you want to pick a manageable line, a line that's straightforward and familiar. And here's one that I'll give you that comes directly from the text of section 522(d)(10)(e), which is you should hold that section 522(d)(10)(e) permits the exemption of all plans or contracts that qualify under section 401(a), section 403(a), section 403(b), or section 408 of the Internal Revenue Code, which IRA's do. And this may have led to some of the confusion, I think, between counsel in this case, which is in the Andersen case, although Ms. Andersen was receiving money under section 408, it was not a 408 individual retirement account. It was, instead, under section 403(b), an individual retirement annuity. So there are, as far as we know, no individual retirement accounts, the things you put money into while the money accumulates before you're ready to retire and you transfer it into an annuity that are customizable. And indeed, for the kinds of debtors who need the protections of section 522(d)(10)(e) the most, the unsophisticated people who are putting their money away in an IRA because their pension plan either doesn't exist at all or isn't adequate for their retirement, the idea that they would understand to go in and negotiate at a bank for a customizable IRA strikes me as quite implausible. That's why we think the most sensible reading of the statute here is to exempt IRA's when the money in them is necessary for the support of the debtor. Thank you.
03-1407 +++$+++ 3889 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you. The case is submitted.
03-1423 +++$+++ 3893 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll now hear argument in the case of Muehler against Mena. Mr. Phillips.
03-1423 +++$+++ 3895 +++$+++ FALSE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens, and may it please the Court: At issue in this case is the safety of police officers when they attempt to execute a search warrant in an inherently unsafe situation.
03-1423 +++$+++ 3896 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask one preliminary question, Mr. Phillips? Do we have before us here any question at all about qualified immunity?
03-1423 +++$+++ 3897 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we do believe that a qualified immunity issue is bound up with the underlying merits. It was addressed that way by the Ninth Circuit because --
03-1423 +++$+++ 3898 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it wasn't -- it wasn't in the questions --
03-1423 +++$+++ 3899 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court --
03-1423 +++$+++ 3900 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- on which we granted cert?
03-1423 +++$+++ 3901 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court in Procunier treated the qualified immunity issue as part and parcel of the underlying merits of the case and -- and, in fact, skipped over the question of what 1983 meant in order to address the qualified immunity issue. And presumably --
03-1423 +++$+++ 3902 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How -- how --
03-1423 +++$+++ 3903 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the Court could do the same thing here.
03-1423 +++$+++ 3904 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How do we do it? It goes right to the heart of this from you, the qualified immunity thing, for the reason that if you look at the facts and circumstances, it sounds to me like a somewhat close question as to whether the police did or did not exceed the reasonable bounds -- reasonable bounds. Now, if it's a close question, you have a jury verdict against you, and -- and then I think, well, yes, but I begin to come -- become disturbed if I think of qualified immunity. I mean, it isn't that clear. So -- so having read through the thing, I -- I preliminarily start by thinking, well, it could have been excessive force, I mean, given -- you know, I'm using that in quotes.
03-1423 +++$+++ 3905 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
03-1423 +++$+++ 3906 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The jury said it was. Who am I to say it wasn't --
03-1423 +++$+++ 3907 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I mean, this -- this --
03-1423 +++$+++ 3908 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in that situation? But qualified immunity. So now, what do I do?
03-1423 +++$+++ 3909 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in the first instance, it's reasonably clear to me that you're not bound by the jury's determination here. This Court has already --
03-1423 +++$+++ 3910 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We -- don't we have to give any weight at all to the jury finding there or --
03-1423 +++$+++ 3911 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect to the historical facts of the case, who did what to whom, of course, you have -- that -- that's subject to clearly erroneous review. On the issue of whether or not the conduct at issue here is reasonable, that's an issue of law or at least a mixed issue of fact --
03-1423 +++$+++ 3912 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, a lot of it may depend on the --
03-1423 +++$+++ 3913 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and law that this Court has decided as de novo.
03-1423 +++$+++ 3914 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- on the music as to handcuffing and what did they say and what was the atmosphere and what was the garage really like and how risky was it that there be gang members in the outhouses and -- and all kinds of stuff that you might sense from the testimony.
03-1423 +++$+++ 3915 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it seems to me that -- Justice Breyer, that the answer to all of those questions go to the core of what it means to exercise unquestioned command of the situation, which is a pure legal standard that this Court adopted a quarter of a century ago in Michigan v. Summers. And that's a question of law. To be sure, there are lots of elements of it, but what my position would be -- and obviously the officers' position in this case -- is that in exercising unquestioned command, you can accept all of the facts as you've just described them and none of that is excessive because it doesn't expose anyone to anything other than what is necessary in order to achieve complete control under the circumstances in order to ensure the protection of the individual officers and -- and candidly of the other individuals who were being -- being detained, all four of them, under these circumstances.
03-1423 +++$+++ 3916 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Have you responded to my initial question? Have you said all you want to say about qualified immunity?
03-1423 +++$+++ 3917 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice O'Connor. My -- my basic answer to that is that this Court already addressed that issue in Procunier. It considered that the qualified immunity issue was part and parcel of the issue, even though it hadn't been presented in the question presented, and indeed, I think in this case it's actually a -- a stronger argument that qualified immunity is in this case because that is the way that the Ninth Circuit specifically addressed the issue. It looked at under Saucier. It evaluated whether or not qualified immunity was appropriate and -- and did the two-part test, the first part being whether it was a constitutional violation and the second part whether or not it was reasonable under these particular circumstances. So if I -- if I cannot persuade you that this is constitutional, which obviously I -- I hope I can do, it seems to me absolutely unquestioned that there -- that what the officers did here under these circumstances were perfectly reasonable.
03-1423 +++$+++ 3918 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what is the -- what is the function of a jury in this case? What does the jury verdict stand for? And the jury doesn't return a special verdict and says we find X, Y, and Z. It finds whether the police exercised excessive force, and that's all we know from the jury verdict. Other -- I think what you're saying is that these cases should go off on summary judgment or even a demurrer. You assume all the facts as the plaintiff alleges them and then the Court decides whether that adds up to unreasonable within the meaning of the Fourth Amendment.
03-1423 +++$+++ 3919 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I'm not saying that that would be true in all cases. I do think in this particular case you did not need to have a jury verdict. We would have been prepared to stipulate to the facts as they were found ultimately and -- and giving the benefit of all of the inferences to the --
03-1423 +++$+++ 3920 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We don't know the fact -- what facts were found because all we have is in the jury verdict that this was excessive force. Period. That's all.
03-1423 +++$+++ 3921 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But that's just a conclusion of law, Justice Ginsburg. So the -- the facts that you know are the facts as they're described --
03-1423 +++$+++ 3922 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it's like was --
03-1423 +++$+++ 3923 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- by the respondent's brief.
03-1423 +++$+++ 3924 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the defendant negligent. Is that more or less a conclusion of law? We don't know in what respect from the jury verdict. And here, were these police officers acting -- did they use excessive force.
03-1423 +++$+++ 3925 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we know precisely what they did. They kept her in handcuffs throughout the duration of the -- of the search. We know that. There's no -- there are no additional claims as to having mistreated her physically.
03-1423 +++$+++ 3926 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wasn't there a fact issue as to whether she was handcuffed for -- even for a short period after the search had been completed?
03-1423 +++$+++ 3927 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think there is a factual question like that because I don't think that question was presented to the jury, and it was certainly not the basis on which the Ninth Circuit affirmed the jury's verdict in this case. There -- there was never an argument made to the jury that this -- that this extended beyond the -- the period of the end of the search. The argument that was made to the jury was that the search should have -- should have been limited to the room where the suspect was -- was a resident or that the police should have made a decision somewhere in the -- before the end of the 2-hour search that she was no longer a threat to them. And then they were arguing that -- that it even went a little further in terms of the timing of it. But they never asked the jury to find that that 15 minutes was the basis for a Fourth Amendment violation in its own right.
03-1423 +++$+++ 3928 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if -- but if it made a difference as a matter of law, what -- what should we assume about that extra 15 minutes? Do we assume that they found the facts in the way that the -- a plaintiff argues them or that you think they are?
03-1423 +++$+++ 3929 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think if the jury had been asked to make that finding, that you -- and -- and the jury determined that there -- that it was unreasonable, then I think you'd have to conclude that the 15 minutes were, in fact -- that it did, in fact, go beyond 15 minutes. I do think there is still a legal issue as to whether that's de minimis under the circumstances. But -- but I agree. I mean, obviously there is a role for the jury's findings, and you have to give them a certain amount of respect. But on the core questions of reasonableness and suspicion and whether or not the police exercised unquestioned command and what those terms mean, this Court has already decided that in the Fourth Amendment context it has to decide those issues as a matter of law to regulate the conduct of all police officers and not simply do it on the basis of whatever a particular jury would say in a particular circumstance.
03-1423 +++$+++ 3930 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, in doing it as a matter of law here, should we give consideration to the fact that in this case, if -- if I remember correctly, one of the officers testified that had they followed normal protocol, once they had, I think his phrase was, secured the building, the -- the main building --
03-1423 +++$+++ 3931 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- all of the grounds actually.
03-1423 +++$+++ 3932 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that the whole compound?
03-1423 +++$+++ 3933 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-1423 +++$+++ 3934 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That -- that they would have -- they would have taken off the immediate restraints, and he wasn't sure why they didn't. We -- do we -- do we consider that when we're crafting our statement of law as -- as to what is or is not excessive?
03-1423 +++$+++ 3935 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think if this Court could determine that, as a matter of course, the -- the standard operating procedures in a particular way, that might certainly inform the Court's Fourth Amendment analysis. That -- I think what's important to keep in mind in this context, though, Justice Souter, is we're talking about four individuals who are being detained under these circumstances, and each of them poses a distinct issue for the police officers under the -- under -- when trying to decide how best to proceed. One of them had been found with marijuana in his possession. One of them had been determined to be an illegal alien, and the other two were individuals about whom the police knew virtually nothing. So, you know, is it possible that police procedure, generally speaking, when you're talking about a single occupant of the residence, oftentimes concludes that he can take away -- you can remove the handcuffs? That may be, although I don't think there's much in the record here to -- to reflect that. But what the police said here -- and I think it's extraordinarily important. Officer Muehler testified that if something had gone wrong, if either a police officer had been injured or one of the occupants of that house had been shot or otherwise harmed as a -- in the context of executing the search warrant, the first question that would have been asked is what was the least that could have been done to prevent those injuries from occurring. And he said to himself and he said it quite rightly -- and it's a rule this Court ought to embrace under the unquestioned command theory of -- of law -- is that if we keep them in handcuffs through the duration of a reasonable search, we will make our way through the search much more rapidly, much more efficiently in order to minimize the detention and we will eliminate -- and I mean, literally eliminate -- the entirety of the risk either to the individuals themselves, the occupants, the detainees, or to the police under these circumstances.
03-1423 +++$+++ 3936 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. I take it you obviously don't want us to -- to come down with a kind of a finicky version of -- of excessive force as the touchstone, and I take it you don't want us to come down with simply a blanket rule saying that essentially the police can do anything in -- in restraining occupants so long as it is not wantonly cruel. Somewhere in between. Do you have a -- a statement that would be the kernel of the holding that you want?
03-1423 +++$+++ 3937 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm -- I'm quite comfortable with the way the Court analyzed it in Michigan v. Summers, that the officer is not required to evaluate the extent of the intrusion to be imposed by the seizure. That is, you -- you have a categorical rule that allows you, in the ordinary course, to do whatever is reasonably necessary in order to --
03-1423 +++$+++ 3938 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But in the facts there, there were no handcuffs. He -- he was just detained. So --
03-1423 +++$+++ 3939 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I understand that, and -- but my -- my position is that handcuffs don't materially affect the detention under these circumstances other than to assure what the Court said, which is unquestioned command of the situation.
03-1423 +++$+++ 3940 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- I mean, I don't -- would -- would you say handcuffs are per se lawful for -- for purposes of applying Summers?
03-1423 +++$+++ 3941 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but it's important to put that in context because Summers is a narrow exception to the -- not an exception. It's a narrow circumstance under the Fourth Amendment. You have to have a search warrant. It has to be a validly issued search warrant so that we know that there has either been a crime that's likely to be taking place in the premises. It only -- it only extends to the residents, occupants of the house, and it's only when the search is for contraband, not just for any evidence. So, for instance, when the police go the 60th time to Michael Jackson's estate to go try to find evidence of whatever is going on there, I don't think it's reasonable to go in and handcuff Michael Jackson and anybody else who happens to be on site.
03-1423 +++$+++ 3942 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it doesn't -- why is contraband magical? Wouldn't -- wouldn't your point be when -- when the reason they're investigating gives cause to believe that there may be physical danger --
03-1423 +++$+++ 3943 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia --
03-1423 +++$+++ 3944 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- from letting people wander around?
03-1423 +++$+++ 3945 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- absolutely.
03-1423 +++$+++ 3946 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which is the case with contraband, but would be the case for many other reasons as well.
03-1423 +++$+++ 3947 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the important point here is that we're talking about guns. These are gangs. These are guns. This is a circumstance that is inherently more dangerous than any other circumstance the police are likely to confront.
03-1423 +++$+++ 3948 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But would you be happy then with a holding that says just what you said? We reaffirm Summers and -- but Summers said special circumstances or possibly a prolonged detention might lead to a different conclusion in an unusual case. And the only verdict part that I think we're concerned with here -- it was not about four people. It was one person, Iris Mena, and in respect to Iris Mena, the jury found that there was a violation of her -- of her Fourth Amendment rights. And as to her, you could have found -- you said -- I don't know if you misspoke. You said it could be more than 15 minutes. In looking at it, I was certain whether they kept her for 15 minutes more or more than 15 minutes more, maybe up to an hour more beyond the time that the search ended and kept her in handcuffs, both after the time they had secured the place and also after the time the search ended. Well, that would seem a basis for the jury's verdict and consistent with Summers.
03-1423 +++$+++ 3949 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it -- it could have been a basis for the jury's verdict if they had, in fact, put the issue of whether or not they were detained --
03-1423 +++$+++ 3950 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, Mr. -- Mr. -- but may I point out that the judge's instructions did put that issue to the jury at page 203. A police officer is required to release an individual detained in connection with a lawful search as soon as the officer's right to conduct the search ends or the search itself is concluded, whichever is sooner.
03-1423 +++$+++ 3951 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. That -- I understand that, Justice Stevens, but the point we made in our reply brief is there's not a shred of evidence in this record and it was never argued to the jury that this search -- that -- that her detention lasted beyond the period of the search in this case. Indeed, counsel for the police officers specifically said in his closing argument, there is no issue but that she was released at the time of the -- that when -- as soon as the search was -- was ended, the -- the warrant was executed.
03-1423 +++$+++ 3952 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I wonder why the judge gave this instruction then.
03-1423 +++$+++ 3953 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because -- because what he's -- well, you know, it's a reasonable instruction.
03-1423 +++$+++ 3954 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And why -- why there was -- there was a special verdict of sorts, not a detailed one. But the two questions, question 5 and question 6, on page 255 of the joint appendix --
03-1423 +++$+++ 3955 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-1423 +++$+++ 3956 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ One question concerns whether the force was excessive, and the other one is, do you find that she was detained for a longer period than reasonable? Those two questions -- my first is a procedural question. Did counsel for the defendants object to the jury getting -- those two questions being submitted to the jury?
03-1423 +++$+++ 3957 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Ginsburg. We didn't. And -- and --
03-1423 +++$+++ 3958 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it seems to me that the judge is asking the jury in these questions, one is whether there was a -- a detention, was force greater than was reasonable under the circumstances, and whether the duration was longer than reasonable under the circumstances.
03-1423 +++$+++ 3959 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Justice Ginsburg, you have to put that in context. The argument of the plaintiff in this case was that the detention should have ended at either of two points: after they had completely cleared the area and made it safe, or alternatively, at some point after that when they had asked her questions and determined that she had no particular involvement with Mr. Romero. Their argument was anything after that was unreasonable, and that's what the jury certainly found, was that that was the reasonable break point. Our argument is that's not consistent with the notion of unquestioned command and -- and is wrong as a matter of law. And there is no evidence -- no evidence. There was no testimony that she was kept for a period beyond the execution of that search warrant. It's very important to understand that.
03-1423 +++$+++ 3960 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you're saying that the -- the mere fact that it -- it went to the jury, even went to the jury without your objecting to it, does not mean we have to listen to what the jury said. Is that -- is that --
03-1423 +++$+++ 3961 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. If it's wrong as a matter of law, that's -- then that's absolutely right. But there was no evidence in this case that they kept going. The only thing he said was, he -- he didn't remember. That was -- the question was put to the police officer. Was she kept beyond there? He said he didn't remember. He wasn't even the police officer who was involved in it. There's not a shred of evidence of that. It's totally made up. It wasn't their theory of the case in front of the jury. I'd like to reserve the balance of my time.
03-1423 +++$+++ 3962 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You might save your time. Yes. Mr. Shanmugam.
03-1423 +++$+++ 3964 +++$+++ FALSE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens, and may it please the Court: When executing a search warrant to investigate a violent crime, officers may routinely use reasonable restraints on detained occupants in order to exercise unquestioned command over the situation and to facilitate the orderly completion of the search. The Ninth Circuit erred in holding that the officers' use of handcuffs in this case violated the Fourth Amendment. Under the standard for excessive force claims first articulated by this Court in Graham v. Connor, as informed by this Court's decision in Michigan v. Summers, the degree of force used here was not excessive. The same considerations that justified the detention of the occupants in Summers, most notably, the paramount concern of ensuring the safety of the officers and the occupants themselves, will ordinarily justify the precautionary use of handcuffs during the detention.
03-1423 +++$+++ 3965 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then this case should not have gone to the jury on the basis of what you said --
03-1423 +++$+++ 3966 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We --
03-1423 +++$+++ 3967 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- because you -- you just said that this -- the handcuffs -- the circumstances -- the circumstances here were reasonable as a matter of law.
03-1423 +++$+++ 3968 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, that's correct. It is our view that as a matter of law, the officers would have been entitled to prevail on the constitutional issue with regard to excessive force. And it's worth noting, I think, that the officers did move for summary judgment. They also orally moved for judgment as a matter of law at the close of the evidence, and that motion was denied. Now, we also believe that the jury, quite frankly, was given insufficient guidance on the excessive force issue, and to turn to the jury instruction cited by Justice Stevens at page 203, it's quite clear that the jury only received one very general instruction on Summers detentions.
03-1423 +++$+++ 3969 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well -- well, has the -- the objection to the instruction been preserved here?
03-1423 +++$+++ 3970 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Perhaps an argument could be made that it's fairly included within the questions presented. There was an objection made at trial and an objection made before the Ninth Circuit as well, but our fundamental position is that the jury was simply given insufficient guidance on the excessive force issue. This instruction --
03-1423 +++$+++ 3971 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But on the -- on the question whether they preserved the issue, I -- I took it, implicit in what you said a minute ago, that yes, they did not object to the submission of the question. They did not object, in effect, to an instruction or giving of an instruction as such.
03-1423 +++$+++ 3972 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
03-1423 +++$+++ 3973 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But they -- they had moved for judgment as a matter of law at the close of all the evidence, and that's enough to preserve the issue?
03-1423 +++$+++ 3974 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's true. It is true that they didn't object to the specific special verdict set of questions. I think they proposed slightly different language. But ultimately I think our primary submission is that as a matter of law on these facts, no constitutional violation occurred.
03-1423 +++$+++ 3975 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ When you -- is your objection that the jury wasn't given enough guidance on excessive force, or is it that the -- that the ultimate issue of excessive force is not a jury issue?
03-1423 +++$+++ 3976 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would concede, I think, Justice Scalia, that the issue should go to the jury where there are disputed issues of historical fact. We would submit that there are no relevant --
03-1423 +++$+++ 3977 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but is -- is excessive force an issue of historical fact any more than -- than unreasonable search or unreasonable seizure is an issue of historical fact?
03-1423 +++$+++ 3978 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there are certain --
03-1423 +++$+++ 3979 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's historical fact how long you held the person, whether the person was in handcuffs, but the ultimate question was, you know, is this force excessive. Is that any different from the question as -- of was this seizure unreasonable? If you submit the one to the jury, you may as well submit the other.
03-1423 +++$+++ 3980 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, those facts may be disputed in a particular case. We would submit that they really weren't disputed here, but there may actually be a dispute where the officers would say, yes, we used handcuffs and the --
03-1423 +++$+++ 3981 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So when --
03-1423 +++$+++ 3982 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- or no we didn't use handcuffs.
03-1423 +++$+++ 3983 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- when you know all those facts, you're willing to send it to the jury to say, given all of these facts, it's up to you to decide whether unreasonable force was used or not.
03-1423 +++$+++ 3984 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We believe that it is --
03-1423 +++$+++ 3985 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's not a matter of law.
03-1423 +++$+++ 3986 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a mixed question of fact and law, and once the historical facts are established, it is essentially --
03-1423 +++$+++ 3987 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why -- why any more so -- why any -- any more so than -- than whether it's an unreasonable seizure?
03-1423 +++$+++ 3988 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we would submit that it is no different from the question whether officers had probable cause or reasonable suspicion on any given set of historical facts which this Court held in Ornelas was a question subject to de novo review, over your dissent, admittedly. And we believe that the primary rationale for the rule in Ornelas also applies here, namely that officers do need to have a consistent set of substantive guidelines by which they can judge the validity of their conduct.
03-1423 +++$+++ 3989 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are -- are you saying that the only basis on -- on which the jury could have ruled for the homeowner here, the -- the respondent, is that she was handcuffed for too long?
03-1423 +++$+++ 3990 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We believe that that certainly is the primary issue that was at stake. And in fact --
03-1423 +++$+++ 3991 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I think you have to say that. Otherwise, we have to uphold the jury verdict, if we can assume that the jury might have thought, well, you know, the handcuffs -- the police had a right to do that, but she was held too long, she was -- they -- they yelled at her, she was taken into a -- a place that was uncomfortable. If -- if that's true, then we have to sustain the jury verdict.
03-1423 +++$+++ 3992 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that the handcuffing was the key factor at trial, and I think that the best evidence of that, quite frankly, is that respondent in her proposed instructions referred only to handcuffing in her excessive force instruction. Unfortunately, that's not part of the joint appendix. It is part of the record.
03-1423 +++$+++ 3993 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, no. But the instruction that was given -- and one was read that's in the briefs -- it seems to me a -- a perfectly good instruction.
03-1423 +++$+++ 3994 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that that's true, but I think that the instruction didn't really provide any guidance on excessive force specifically. It was really an instruction with regard to the reasonableness of the detention more generally, rather than with regard to excessive force specifically. It was not a Graham v. Connor type instruction.
03-1423 +++$+++ 3995 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, then it seems to me it was the plaintiff's obligation to submit a clarifying instruction and to bring this -- the denial of that instruction here.
03-1423 +++$+++ 3996 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there were objections to the instruction below, and all I can say is that perhaps an argument could be made -- and perhaps Mr. Phillips will make the argument on rebuttal -- that it is fairly included within the questions presented.
03-1423 +++$+++ 3997 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't know how you can -- you can say that the only thing that was before the jury was the handcuff when the -- there was evidence that she was treated very roughly in -- in the first instance, she was woken from her sleep, she wasn't told that they were police, she thought they were robbers, and she feared for her life. That doesn't drop out of the case and what the jury was asked to determine.
03-1423 +++$+++ 3998 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, it was the primary issue before the jury, and to be sure, there were other issues. I think that the other relevant use of force was the initial detention at gunpoint, but -- and those -- and I would add that those are the two factors on which the Ninth Circuit relied in affirming the jury's verdict. Our submission is that both with regard to the initial use of force and with regard to the continued use of force, the justifications of Graham v. Connor support the officers' use of force in both instances.
03-1423 +++$+++ 3999 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- but may I just ask a sort of very basic question? One of the instructions reads, a detention may be unreasonable if it -- if it is unnecessarily painful, degrading, prolonged, or if it involves an undue invasion of privacy. Now, are you telling us that you think the answer to that question is a question of law that the judge should provide rather than the jury?
03-1423 +++$+++ 4000 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Assuming that that instruction is correct -- and that might very well be a valid instruction --
03-1423 +++$+++ 4001 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it was correct.
03-1423 +++$+++ 4002 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It may very well be a correct instruction --
03-1423 +++$+++ 4003 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right.
03-1423 +++$+++ 4004 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- with regard to a challenge to the manner of the detention itself. In that instance, then the jury does have a certain amount of leeway, but I think even then the teaching of Ornelas --
03-1423 +++$+++ 4005 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then it's not a question of law. The answer to whether it was unnecessarily painful, degrading, prolonged, or involved undue invasion of privacy, is that a question of law or a question of fact to the jury?
03-1423 +++$+++ 4006 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is a mixed question of law and fact, and the jury's job is --
03-1423 +++$+++ 4007 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's a mixed question?
03-1423 +++$+++ 4008 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The jury's job is to -- to resolve the underlying factual issues and then --
03-1423 +++$+++ 4009 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I understand the historical fact, but I'm -- I'm questioning you about the conclusions that you draw from the unreasonableness, degrading, and so forth. Is that partly to be decided by the jury or entirely by the judge?
03-1423 +++$+++ 4010 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We believe that that actually is ultimately a judge issue in the same way that the issue of whether or not probable --
03-1423 +++$+++ 4011 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So this instruction should not have been given.
03-1423 +++$+++ 4012 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct --
03-1423 +++$+++ 4013 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought your position was that it -- it may be submitted to the jury, but that it may be reviewed as a question of law simply because that's the way we are able to set standards for later cases.
03-1423 +++$+++ 4014 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's exactly right, and I think that that is the teaching of Ornelas. And it may very well be that a more specific instruction should have been given so as to make clear that the jury had specific issues of historical fact to resolve. But ultimately we do believe that it's a question of law in the sense that it should be reviewed de novo for precisely the reasons given in Ornelas. And if I could just say a couple words on the substantive issue of excessive force. We believe that in cases involving violent crimes, officers should routinely be allowed to use handcuffs. In this case, I would just add that there were several additional case-specific factors that justified the use of handcuffs. In addition to the fact that this was a violent crime, the officers had reason to believe that at least one and possibly two members of a violent gang were living at the house. In addition, the officers had previously visited the house on two occasions to investigate other violent crimes and had encountered resistance on at least one of those occasions. And our fundamental problem with the Ninth Circuit's rule is that it seems to suggest that officers in the course of a detention should really stop and investigate whether or not each -- each individual that they encounter poses a safety threat. And we believe that that rule is as unworkable as it is unwise. It would effectively divert officers from the primary task at hand and could perversely have the effect of prolonging rather than expediting the completion of the search. And for that reason, we believe that the Ninth Circuit's rule, its substantive constitutional rule, was erroneous.
03-1423 +++$+++ 4015 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How long did it take them to find out whether the -- these other dangerous people were there?
03-1423 +++$+++ 4016 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To find out whether?
03-1423 +++$+++ 4017 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Whether the people they were afraid of were -- were on the premises?
03-1423 +++$+++ 4018 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you know, I don't know that they ever actually made a -- a determination other than that Mr. Romero was not on the premises. I think they figured that out once they had actually identified each of the individuals, which was fairly early on in the detention.
03-1423 +++$+++ 4019 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you. Mr. Hoffman.
03-1423 +++$+++ 4021 +++$+++ FALSE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: Let me start on the issue of -- that Mr. Phillips said we made up. Actually we didn't make it up. The claim that Ms. Mena was detained past the time of the search was made throughout the case. If you look at footnote 3 in the Ninth Circuit opinion in 2000, the issue of the length of the detention was a factual issue that precluded summary judgment. Ms. Mena claimed that the detention lasted for 2 to 3 hours. The officers claimed that it lasted 90 minutes. But more than that, the -- the jury -- the -- the special verdict asked the jury to find whether Ms. Mena had been kept for a longer time than reasonable, and in fact, in the closing argument, it was argued that Ms. Mena had been kept beyond the time that the search ended. And not only is there not any -- not only is there evidence in the record, there is overwhelming evidence in the record that Ms. Mena was kept for a period of time, at least 30 minutes, give or take, and possibly as long as an hour. And this is not based on Ms. Mena's testimony.
03-1423 +++$+++ 4022 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you find that the -- that the -- do you define the end of the search as before they started videotaping everything they had done?
03-1423 +++$+++ 4023 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they were videotaping during the course of the search. But if I can go through the facts which might clarify things. Officer Muehler, who was the officer in overall charge of the -- of the search, testified at trial that the search ended at 8:40 a.m. Officer Brill said a little bit later than that. He tied -- but there's a second video. There are two videos. The second video is from 8:50 to 8:57. At the time that the second -- the second video started at 8:50, Officer Brill testified that the search was over. The -- the evidence log -- the last entry on the evidence log is 8:45 in terms of evidence being logged into the -- into the case. Officer Brill testified that Ms. Mena was kept for at least 10 or 15 minutes after the end of the second video and her handcuffs were not released until she was brought back around from the -- the separate converted garage back into the house and --
03-1423 +++$+++ 4024 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where -- where is that testimony?
03-1423 +++$+++ 4025 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The testimony -- Officer Brill's testimony? Is actually -- they cite joint appendix number -- on 75 where he says he doesn't recall. On the next page, in joint appendix number 76, he's asked -- they continue to ask the question. And isn't it your memory that about 10 or 15 minutes after that, Iris Mena was released? That would sound consistent. And that's 10 or 15 minutes after 8:57. In addition, Ms. Mena testified that she was kept between 2 or 3 hours, and that was actually consistent with prior testimony by the videographer herself, who testified in deposition and was impeached at trial, that it was 2 or 3 hours that the search lasted. The -- the point being -- and if you take the distance between Officer Muehler's testimony and Officer Brill's testimony, Ms. Mena was -- was kept in handcuffs at the end of a very long detention in handcuffs, for a period of approximately 27 to 33 minutes, if you don't even take Ms. Mena's testimony into account. And one of the ironies of the case is that there's testimony that Mr. Romero, the actual target of the case, was released at 8:45 at the time the search ended. And so while this --
03-1423 +++$+++ 4026 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But not from these premises.
03-1423 +++$+++ 4027 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. But in fact, this was a -- the search warrant was for two premises. He was picked up at his mother's house. And in fact, Officer Muehler had -- was -- was to radio the start of both searches, and so there was --
03-1423 +++$+++ 4028 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the -- the -- I thought that this poorhouse, or whatever it was called -- that the warrant covered weapons that were there.
03-1423 +++$+++ 4029 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1423 +++$+++ 4030 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That they were looking for weapons.
03-1423 +++$+++ 4031 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They were looking for a gun.
03-1423 +++$+++ 4032 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They were not looking for a gun at Romero's mother's house, were they?
03-1423 +++$+++ 4033 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the --
03-1423 +++$+++ 4034 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did they have a warrant, a search warrant?
03-1423 +++$+++ 4035 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the warrant covered -- I think they were looking for the gun wherever it was found, and -- and the -- I believe the warrant --
03-1423 +++$+++ 4036 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, this was a -- this was a pretty extensive search warrant that they had.
03-1423 +++$+++ 4037 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1423 +++$+++ 4038 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did they have something like that, the same kind of warrant for the --
03-1423 +++$+++ 4039 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's the same warrant I believe, Your Honor, in terms of -- we don't have -- there's not a lot of information in the record about --
03-1423 +++$+++ 4040 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, wasn't -- I thought that this warrant referred to a particular address, a particular house, not -- not any house where one might find Romero.
03-1423 +++$+++ 4041 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no, no. It -- it referred to the two houses, one on Cimmaron.
03-1423 +++$+++ 4042 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, was the other house his mother's house?
03-1423 +++$+++ 4043 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. The location number one is his mother's house, 2646 Cimmaron, and that's -- and Officer Muehler and this team was in charge of both of these searches pursuant to the same warrant. They had information that -- the reason they did that is that they had information that -- that he lived in this poorhouse, that he rented a room from the Menas at the poorhouse, and that he also visited his -- his mother from time to time.
03-1423 +++$+++ 4044 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then that would make it even more curious if the place where the dangerous man was wasn't searched extensively and -- and the mother -- nobody was put in handcuffs, and yet for this -- they knew pretty soon that Romero wasn't on the premises.
03-1423 +++$+++ 4045 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they knew right away.
03-1423 +++$+++ 4046 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. And that's, I guess, your -- your point, that the place where the dangerous man was is not --
03-1423 +++$+++ 4047 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that that explains one of the reasons why the jury imposed punitive damages here because they -- they knew that at 8:45, at the time that Officer Muehler said that the search was over and all the officers were out of the house and -- and everything was done, that Mr. Romero was cited and released for marijuana possession. And at the same time, from 8:45 until sometime after 9 o'clock, probably as long as 30, maybe longer, Iris Mena was sitting in a cold, damp, converted garage with her hands behind her back.
03-1423 +++$+++ 4048 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You might be able to keep your verdict, I -- I think. But I think the problem here is the Ninth Circuit -- you go to the Ninth Circuit and you say, you know, there was excessive force here on anybody's definition for reasons that you say. And -- and the Ninth Circuit says, oh, it was a clear violation of the Constitution and we'll tell you why, and then they give some reasons. And two of those reasons are, A, four and a half pages written the reason that this was unconstitutional is because they asked her questions about her immigration status, which you -- I don't think you even raised. Maybe you did. But anyway, that's -- that's the bulk of the -- of -- of -- that's the bulk of the analysis. And -- and these are the words that I think they're objecting to. And by any standard of reasonableness, Mena was -- the -- the officers should have released her from the handcuffs when it became clear that she posed no immediate threat. And that was long before the -- the -- because she wasn't a threat. And that was long before the end of the search. And what their point is on that is, you know, if that's the rule, that's going to interfere with our SWAT teams because they can't operate that way. They -- they can't evaluate the individual. They put the individual -- if there are guns and gangs and danger that she'll grab a gun, they put her in handcuffs, and they hold her there for the search for a couple of hours, then they release her. Now, that's their argument. So they're objecting not so much to -- to the fact they have to pay $30,000 -- or they may object to that. But they're -- they're objecting to the holding of the Ninth Circuit, and if they're right on that, then I guess we have to send it back and say, do this over again, though I'll be sorry about that and maybe there is a way not to do it. But -- but I want to know your view of what I see as those two issues here, that the Ninth Circuit's analysis was wrong.
03-1423 +++$+++ 4049 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I mean, first of all, I'd -- I'd say that the -- the Court could affirm the judgment in this case and the verdict in this case on the ground that we --
03-1423 +++$+++ 4050 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but then we can't really reach the issue. That's a possibility. I see that.
03-1423 +++$+++ 4051 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And in fact -- and I -- I think that would be the appropriate thing to do.
03-1423 +++$+++ 4052 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but then suppose that the reason that this case is here is because of the implications --
03-1423 +++$+++ 4053 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-1423 +++$+++ 4054 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- of the Ninth Circuit's analysis --
03-1423 +++$+++ 4055 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-1423 +++$+++ 4056 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- not necessarily the extra 30 minutes because I see your point on the extra 30 minutes.
03-1423 +++$+++ 4057 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think -- I think that there -- I would divide my response to that, Justice Breyer, into two parts really. On the questioning issue, I would just say that that -- that was not an issue that was presented to the jury for its verdict as a separate Fourth Amendment violation. It wasn't. And we didn't argue it in the Ninth Circuit. What we did -- we did say in our -- in our brief to the Ninth Circuit that she was questioned about her immigration status about an issue that was unrelated to -- to Summers detention. We did say that.
03-1423 +++$+++ 4058 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, we could say is their opinion -- that's their opinion. It's beside the point, et cetera.
03-1423 +++$+++ 4059 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. So, I mean, I -- I think on questioning, you know, we -- we haven't been pushing that issue.
03-1423 +++$+++ 4060 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If -- if two of the reasons that the Ninth Circuit gave are in our view incorrect, why wouldn't we reverse and remand for them to do it without -- to make the judgment without taking those two factors into account?
03-1423 +++$+++ 4061 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think what -- first of all, it's a separate alternative holding. What they said is that there was a separate Fourth Amendment violation while they affirmed on the basis that we actually won on. The jury found that she had been detained longer than was reasonable and with more force than was reasonable. This is a jury verdict. The Ninth Circuit affirmed that. And we've argued in our brief that if the Court did something on questioning, it would really be issuing an advisory opinion in this -- in this situation. And, you know, we've -- we've argued the point and we're prepared certainly to argue about the merits of that question because it's obviously an important question. In our view, the questioning issue should be governed by the more traditional Terry kind of idea that you can't question when it goes beyond the scope of the limited purposes of the intrusion, but we also understand that that's contested.
03-1423 +++$+++ 4062 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
03-1423 +++$+++ 4063 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't --
03-1423 +++$+++ 4064 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- well, it does seem to me that --
03-1423 +++$+++ 4065 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Excuse me.
03-1423 +++$+++ 4066 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It -- it does seem -- seem to me that the Ninth Circuit's opinion is questionable on -- on this key point of when she had to be released. The officers should have released her when it became clear she posed no immediate threat and did not resist arrest.
03-1423 +++$+++ 4067 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1423 +++$+++ 4068 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think that is critical to its holding.
03-1423 +++$+++ 4069 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1423 +++$+++ 4070 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that implies that they have a -- a duty at the outset to determine whether -- what her status is rather than to go around looking for guns and -- and to secure the premises. That's -- that's one of my concerns with that.
03-1423 +++$+++ 4071 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I would have a different position on that. First of all, I think that the judgment can actually be affirmed on the first ground regardless of this issue because it was a -- a jury verdict and -- and the damages were asked for either/or in terms of question 5 or 6.
03-1423 +++$+++ 4072 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The -- the first ground being? Just an unreasonably long --
03-1423 +++$+++ 4073 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Detained beyond the -- the length of the search. And so I think technically the judgment can be affirmed on that ground. But with respect to the handcuffing, the position that we would say is that, first of all, you -- you would have to view the facts in the light most favorable to the verdict. Now, it's been -- there's been a lot of questioning about what that means and what the jury's role is. As we understand it, if Ornelas applies to this decision, which we assume the Court would do -- and that is, that you would first have to take the light -- all the facts in the light most favorable to the verdict, including the possibility that the -- the jury rejected as being incredible the statements that the officers made in terms of justification, if there was evidence in the record to show that there was contradicting evidence, which there is in this record. And so the facts that -- that the other side has tried to argue are the facts on which you would make that constitutional decision are not the facts in the light most favorable to the verdict. In the light most favorable to the verdict, there was -- there was lots of planning. There was a tactical plan in writing that the jury got to see, which said that the -- the plan here was to go in and make the SWAT entry, to see if there were non-suspects there. They would be patted down, identified, and released. The jury was entitled not to believe the other side's claim that they didn't say when they were going to be released and believed that the plan was to release them as soon as it was ascertained that they did not have the connection in -- in the situation. And in fact, there's testimony from the officers that they knew that they weren't gang members and they knew that they weren't connected to the crime. And they were completely cooperative, and they didn't resist arrest and they didn't flee. And Iris Mena is 5 foot 1 -- 5 foot 2 inches, and the jury had a videotape of exactly how they looked. The officers had a total plan. They -- they exercised their command of the situation from the beginning. They cleared it. They made sure it was safe. They took people outside through the pouring rain, which actually they say there wasn't evidence about that.
03-1423 +++$+++ 4074 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Medium -- medium rain.
03-1423 +++$+++ 4075 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, actually at -- at joint appendix number 183, Officer Allegra, who was one of the entry team, said it was pouring. So -- and in fact, the stipulation of facts said it was heavy. So Iris Mena was being -- was being demure when she talked about that. You can even see the rain on the videotape. And so they took her outside. They took all of them outside. They put them in this little room, which is not connected to the house. They had one or two armed officers outside. There was no place for them to go. They couldn't interfere with the facilitation of the search because they were in this room. They couldn't flee because there's only one way out, a door. There were two armed guards there. And -- and if all they had to do was sit these four people, who were not connected to any gang activity, as to which they had no suspicion ever developed that they had any connection to Mr. Romero, who had already been arrested at his mom's house --
03-1423 +++$+++ 4076 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They can't have a flat rule that while you're conducting a search, you -- you can restrain anybody that you find assuming the search is for a crime that -- that involves violence.
03-1423 +++$+++ 4077 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that the --
03-1423 +++$+++ 4078 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't want to have to make that call all the time, you know.
03-1423 +++$+++ 4079 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but -- but officers do make that call all the time. They make it in the context of Terry stops. They make it in the context of lots of Fourth Amendment issues. In Summers -- in Summers, the man was detained. In many of the post-Summers cases, including many cited by the other side and the Government, handcuffing is not viewed as routine. Handcuffing is viewed as something that substantially aggravates the nature of the seizure --
03-1423 +++$+++ 4080 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If that's true, is it routine in -- I mean, here what sort of pushes the other way on this is this is a dangerous gang. They have lots of weapons and they have previously gone to this house, which I gather -- sometimes when I read it, I think it's like a warren of little rooms. On the other hand, maybe it isn't. I haven't seen the house. There are a lot of buildings around, and they think a lot of people here -- we don't know who's what, and we make a mistake in this and we're dead. You know, I mean, so that's painting it the other way. But where you have guns and -- and houses and gangs and so forth, now that's why they say that it's reasonable in those circumstances to say, when we find someone in the house, we handcuff them through the search. We might let them go earlier, but that's up to us and we don't want the courts second guessing us on that. Now, what's -- what's painting it their way, and I'd like you to respond.
03-1423 +++$+++ 4081 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I understand that. I guess the -- the problem with that is that that means that no matter who they find -- and in this case is a good example of it. They were worried that they might find the gang member who had a gun there, and that's what they were looking for. Okay. And so they used the SWAT team. That seems perfectly reasonable that they would use a SWAT team the way they did. And they went in and within literally 4 or 5 minutes, they had -- this is a tiny, little house. They had cleared the house. They had figured out all the occupants. They put them in a room completely under their control where they couldn't get away from anything. They knew there were two 40-year-old people, a young hippie, and -- and an 18-year-old girl that was 5 foot --
03-1423 +++$+++ 4082 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did they search that room?
03-1423 +++$+++ 4083 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. They searched that room. So the room was searched before they went there. They searched all the rooms. They searched Ms. Mena's room and found absolutely nothing there. And -- and the testimony -- and this goes to Justice Souter's question.
03-1423 +++$+++ 4084 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did they -- did they search the individuals too to make sure --
03-1423 +++$+++ 4085 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1423 +++$+++ 4086 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I assume they did.
03-1423 +++$+++ 4087 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, yes. They -- they searched the individuals. They -- they -- you know, they completely made sure that -- that when they put them in that back room, there was nothing in the room. There was nothing on the individuals. There was nothing that -- that could cause them danger. And -- and the jury, I think, was entitled to -- to look at those facts and -- and to hear the facts and to see the facts --
03-1423 +++$+++ 4088 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How did the qualified immunity question get resolved here?
03-1423 +++$+++ 4089 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the --
03-1423 +++$+++ 4090 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what -- what role did that play in all of this?
03-1423 +++$+++ 4091 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, at the -- at the district court level, the -- the district court heard a rule 59. But one of the things about this case is it was tried right around the time that Saucier v. Katz came out, and in the Ninth Circuit, there was a question about who got to decide qualified immunity. This was June 2001 actually. And so there was a rule 59 motion about whether the proper standard of qualified immunity had been applied. The district judge, looking at the facts, found that there were facts to sustain the verdict, including evidence that Ms. Mena had been kept after the end of the search. The district judge found that. And then in -- in the Ninth Circuit, of course, the Ninth Circuit's published opinion deals with qualified immunity on both of these issues. And basically the -- the qualified immunity -- on the -- on the over-detention claim, I think they've conceded that there just isn't any justification for -- I mean, a de minimis exception doesn't extend to 30 minutes. I mean, that -- this Court has debated whether 15 or 20 is too long on a -- on a Terry stop when there's actually reasonable suspicion. Here, there's nothing to hold her. With respect to the handcuffing issue --
03-1423 +++$+++ 4092 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it clear that it was 30?
03-1423 +++$+++ 4093 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think in viewing the light most favorable to the verdict, I think the Court has to assume that -- that the jury could have found an hour. But what I'm saying is based on the officer's own testimony alone, viewed in the light most favorable to the verdict, it's at least 27 to 32. And so you've got something that just could not possibly be considered de minimis under any kind of exception. And -- and that's why they fought it on the facts. They haven't even made an argument on the law at any point in this. And with respect to handcuffing, I think our position on the handcuffing is that Summers, first of all, doesn't deal with handcuffing. And the other side has consistently tried to equate detention with restraint. And I think what -- what Summers indicated was that this Court was willing to allow people to be detained during the course of a search for three specific reasons. And when balancing the nature of the intrusion against the justifications, this Court specifically said it was endorsing a limited intrusion, and that it wouldn't be very much different asking someone to sit around --
03-1423 +++$+++ 4094 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Doesn't that just go to the point that it's not clearly established at least?
03-1423 +++$+++ 4095 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, no. I -- I don't think that is the case, Justice Kennedy, because in -- in -- Summers doesn't authorize what they did. Graham certainly talks about having to justify force based on a -- on a Fourth Amendment analysis. And Franklin v. Foxworth, which is a Ninth Circuit case that happened before this case, the Court, first of all, used the -- the analysis that we have argued is appropriate based on Summers and Graham to decide that a particular Summers detention was carried out in an unreasonable manner.
03-1423 +++$+++ 4096 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but that was ill individual, a single individual --
03-1423 +++$+++ 4097 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1423 +++$+++ 4098 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- unclothed, et cetera --
03-1423 +++$+++ 4099 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I -- I understand that the facts were more egregious, but the -- the Court's analysis for a reasonable officer from a qualified immunity standpoint -- for a reasonable officer reading that opinion, you draw at least three conclusions I think. One is that the proper analysis to determine whether handcuffing or some additional form of restraint is -- is allowed has to be decided under the kinds of justifications that Summers provides and under a Graham analysis when it comes to force. And there's lots of cases that -- that allow officers to do that. Lots of lower court cases. In fact, our view is all the lower court cases follow that kind of analysis and just come out differently depending on the facts and circumstances confronted. The second thing, the -- the point about the disabled person and the particular facts made that case particularly egregious, and the Ninth Circuit said those were additional factors, not the line. The Ninth Circuit didn't say that the constitutional standard was particularly abusive or egregious. It -- it applied traditional Fourth Amendment analysis. And finally and I think very important and not dealt with maybe in the briefs as much as it should be is that the Ninth Circuit in -- in Franklin rejected a blanket handcuffing policy. That's what the policy was in Portland. The Portland police department had a policy that said you are to handcuff everybody until the search is over. And the Ninth Circuit said you can't have that kind of policy because Summers and -- and Graham require it to be individualized justification for that -- for an additional intrusion beyond the limited intrusion that's allowed in Summers. And in fact, in Summers, the Court went out of its way to say to compare with what the Court was allowing to what it -- to -- to the circumstances in Dunaway, to -- to circumstances that start to look like an arrest. And I don't know how much more intrusive you could be than what these officers did to Iris Mena, and I think that's one of the -- the issues here. If -- if the --
03-1423 +++$+++ 4100 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what do we do if we think the Ninth Circuit was off base in -- in whether Mena could be questioned about her immigration status?
03-1423 +++$+++ 4101 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I think that --
03-1423 +++$+++ 4102 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That seemed to be an important part of the Ninth Circuit's rule.
03-1423 +++$+++ 4103 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's certainly -- it's certainly an alternative ground. It's not -- it doesn't affect, I think, our verdict. And so I think what -- I mean, I suppose the Court could dismiss that question as improvidently granted, could say to the court that it -- that it should reverse that part of the ruling.
03-1423 +++$+++ 4104 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It might be useful to say they were wrong in --
03-1423 +++$+++ 4105 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that -- you -- you could say that. I mean, I would -- on the merits of the question, I -- I would like to -- if we were reaching that, I would argue that the Ninth Circuit -- that -- that there is -- there should be a limit on questioning in a -- in a Summers detention, and the Court should apply the kind of Terry analysis that the majority of the -- the circuits apply.
03-1423 +++$+++ 4106 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what will do if we thought the Ninth Circuit was egregiously wrong on that and that its opinion was, to use the most polite word, disingenuous when it talked about a garage? That -- that was somewhat off-putting to me when it was a converted garage with a bed.
03-1423 +++$+++ 4107 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I mean --
03-1423 +++$+++ 4108 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, I -- I thought this woman was standing in -- by some grease rack or something and she was --
03-1423 +++$+++ 4109 +++$+++ TRUE +++$+++ MR. HOFFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ She wasn't standing by a grease rack, but she was made to sit initially by an open door because the door had basically been obliterated on a very cold, rainy February morning where she was very cold, and after -- and had been taken through the -- the pouring rain in bare feet and with only a T-shirt and was left there for at least 20 or so minutes without being given a coat or shoes. And she was made to sit by there and she was very cold and uncomfortable. And she did complain that the handcuffs were too tight and she complained that they were uncomfortable and could they be removed. It's not a garage in -- in the way that the vision of it, but also if you look at it, it's -- and the -- the jury did look at it because it had a videotape of this. You could see that the -- the occupants were made to be in a very uncomfortable situation that was unnecessary. And that -- that was clearly established law in the Ninth Circuit certainly under Franklin that the manner of a search that was unnecessarily prolonged or painful or an unnecessary invasion of privacy was clearly established law in the Ninth Circuit as of 1994. I think in the Heitschmidt case, which is very similar in a lot of ways to our case, that came out after the search, but applied the same reasoning to a 1994 search. You had the same kind of handcuffing of a non-suspect as to whom the -- the officers didn't have that -- that kind of -- of suspicion. And the Fifth Circuit found that that was a violation and denied qualified immunity to the officers. So from our standpoint, on the issue of being detained past the time, I think it's just a clear case. I think the other side has conceded that if -- if there's this evidence in the record, which there is, the judgment has to be affirmed on that basis. On -- on the handcuffing issue, we believe the same principle has to apply because the facts have to be viewed in the light most favorable to the verdict, and when you view those facts, I -- it -- it is -- no reasonable officer would believe you could do those things to Ms. Mena in these circumstances based on the law at the time. And I think that it would be -- what the -- what the United States and -- and what petitioners' counsel is asking for is really for a radical change of law themselves. We're happy with Summers and Graham and the way that applies, and the -- the jury instruction was based on -- on Summers and Graham and on Franklin. The language is taken directly from those cases. And -- and the -- the jury in a case like this -- qualified immunity obviously provides some protection for -- for officers that when -- when a reasonable officer wouldn't know these things. But jury verdicts also play a crucial role in a civil rights case. In this case, a jury of our community found that Iris Mena had been subjected to an abuse of -- a specific abuse of authority in being held beyond the time of -- of the search, even at a time when the prime target was -- was free to go about his business with a citation, and was held in these painful handcuffs for a period of over 2 hours in circumstances where, in the totality of the circumstances, she was treated much more harshly than anything this Court, I think, contemplated in the Summers case. And I think that officers know how to -- officers know how to handle the Fourth Amendment issues involved in this case. They don't need a special rule because that rule would end up meaning that when you go in and you don't find what you're afraid of, that everybody is still going to be subjected to this kind of serious intrusion on their individual liberty. And so we would urge the Court not to go down this new path that the United States and the petitioners are asking and to affirm the judgment because it was based on clearly established principles that this Court and other courts around the country have -- have established. Thank you very much.
03-1423 +++$+++ 4110 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Hoffman. Mr. Phillips, you have about 3 and a half minutes.
03-1423 +++$+++ 4112 +++$+++ FALSE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens. I want to start with essentially the question that Justices Breyer and Kennedy raised, which is what do you do when you know that the Ninth Circuit is wrong, that the questioning here violated the Fourth Amendment, and what do you do when you know that the Ninth Circuit was wrong in saying that the officers have an affirmative duty in the middle of a Summers detention to make an assessment on an individualized basis as to the risks posed by any individual detainee. Those are rulings that I submit to you are plainly erroneous and warrant reversal on that basis alone. At that stage, if the respondent wants to argue to the Ninth Circuit that that 15 minutes is, in fact, proved by the facts of this case, that's fine, but understand, those issues were put to the Ninth Circuit, and the Ninth Circuit did not affirm on the alternative ground that there were 15 minutes here. The Ninth Circuit expressly never -- or didn't expressly but never said one word about a period of time after the search ended in this particular case, and that's not an accident because there is no testimony. The officer said he didn't remember and when asked, well, would 10 to 15 minutes be consistent with your memory, well, of course, it would. He didn't remember anything. So there's nothing in that evidence, and there's no way -- I have looked at that tape. I ask you to look at that tape. I guarantee you there's no way you can draw any inference as to at what point in this process she was released vis-a-vis the end of this particular -- this particular search being executed.
03-1423 +++$+++ 4113 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so do we have the tape here?
03-1423 +++$+++ 4114 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I assume you have the tape. It's part of the record. It should be in the clerk's office. If you don't have it, I'd be more than happy to send you a copy. The --
03-1423 +++$+++ 4115 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there was no -- there was no objection to that question going to the jury, was the duration unreasonable.
03-1423 +++$+++ 4116 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of course not, Justice Ginsburg, because the issue before the jury was whether or not the -- we had an affirmative duty to make an evaluation in the middle of the search as to whether or not she posed a -- a threat. That was --
03-1423 +++$+++ 4117 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the jury --
03-1423 +++$+++ 4118 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- their theory of the case, and that's what the Ninth Circuit said, is yes, we do have that affirmative obligation.
03-1423 +++$+++ 4119 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the jury answered the -- just the general question, was the duration unreasonable, and the jury said yes.
03-1423 +++$+++ 4120 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not of the search. Of her detention.
03-1423 +++$+++ 4121 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
03-1423 +++$+++ 4122 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, of her detention. And that was based on the jury's determination that we had detained her beyond the period we had done the sweep.
03-1423 +++$+++ 4123 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So if the district court got it right and the Ninth Circuit wrote a poor opinion, why should we upset the judgment in the case? In other words, if what we had here was a trial that was okay, a district judge that behaved -- gave a proper charge, then the Ninth Circuit writes an opinion that doesn't seem to deal with what the district court and the jury decided.
03-1423 +++$+++ 4124 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- the court of appeals' obligation here was to evaluate our argument that we should -- we were entitled to judgment as a matter of law. The court of appeals put forth what it regarded as the most legitimate bases on which to affirm the judgment in this case. The fact that neither of those withstand serious scrutiny, Justice Ginsburg, seems to me to be a basis for reversing the Ninth Circuit and allowing the matter to go back at this point. And -- and that is exactly what this Court does in -- you know, said it will do in Ornelas, that it is a de novo review. Punitive damages, exactly like a punitive damages cases. Juries make punitive damages determinations every day and every day courts of appeals and trial judges review those damages awards de novo because they -- because the question is not just what are the historical facts -- that you give deference to the jury on -- but on the fundamental question of what is the rule of law that will govern the police officers in the execution of search warrants in circumstances like this. They need protection, Your Honor. Thank you.
03-1423 +++$+++ 4125 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Phillips. The case is submitted.
03-1454 +++$+++ 4129 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We will now hear argument in Gonzales, et al. against Raich. General Clement.
03-1454 +++$+++ 4131 +++$+++ FALSE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: Through the Controlled Substances Act, Congress has comprehensively regulated the national market in drugs with the potential for abuse. And with respect to Schedule I substances, like marijuana, that have both a high potential for abuse and no currently accepted medical use in treatment, Congress categorically prohibits interstate trafficking outside the narrow and carefully controlled confines of federally approved research programs.
03-1454 +++$+++ 4132 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, Mr. Clement, the -- I think it is reasonably clear that Congress spoke very broadly in the Act, and the question, for me, turns on whether Lopez and Morrison dictate some concerns with its application in this context.
03-1454 +++$+++ 4133 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, with respect, Justice O'Connor, I don't think either Lopez or Morrison casts any doubt on the constitutionality of the Controlled Substances Act, and I think, in particular, that's because the decisions in Lopez and Morrison cited, with approval, cases like Darby and Wickard, and preserved those cases. And, of course, the concurring opinion of Justice Kennedy did so, as well.
03-1454 +++$+++ 4134 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but in Wickard, of course, you had a wheat grower, a small farmer, and his wheat did, in part, go in the national market. You don't have that here. As I understand it, if California's law applies, then none of this home-grown for medical-use marijuana will be on any interstate market. And it is in the area of something traditionally regulated by states. So how do you distinguish Morrison? And how do you distinguish Lopez?
03-1454 +++$+++ 4135 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice O'Connor, let me first say that I think it might be a bit optimistic to think that none of the marijuana that's produced consistent with California law would be diverted into the national market for marijuana. And, of course, the Controlled Substances Act is concerned, at almost every step of the Act, with a concern about diversion, both of lawful substances from medical to non-medical uses and from controlled substances under Schedule I into the national market.
03-1454 +++$+++ 4136 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, in looking at this broad challenge, do we have to assume that the State of California will enforce its law? I mean, if it turns out that it isn't and that marijuana is getting in the interstate market, that might be a different thing.
03-1454 +++$+++ 4137 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, with respect, Justice O'Connor, on this record, I don't think that there's any reason to assume that California is going to have some sort of almost unnatural ability to keep one part of a fungible national drug market separate. And I think Congress, here, made important findings that you've alluded to, not just that there's a national market, not just that the intrastate and the interstate markets are linked, but that drugs are fungible, and that because drugs are fungible, it's simply not feasible, in Congress' words, to regulate and separately focus on only drugs that have traveled on interstate commerce.
03-1454 +++$+++ 4138 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, General Clement, what if we were to assume -- I'm not saying this is -- that the District Court could find that there is a narrow segment of the market in which they could prevent diversions, and they had -- say they made such findings. Would we have to disregard them, or say they were irrelevant?
03-1454 +++$+++ 4139 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think you would say they were irrelevant, Justice Stevens, and that's because --
03-1454 +++$+++ 4140 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But then why do you need to rely on the possibility of diversion?
03-1454 +++$+++ 4141 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because I think it is a reality, in responding to Justice O'Connor's question -- I think that in -- obviously, in all of these commerce --
03-1454 +++$+++ 4142 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yeah, but in my hypothesis, it's a nonexistent reality.
03-1454 +++$+++ 4143 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in your hypothetical -- and if I could turn to that -- I still think the analysis would not turn on whether or not the truth of the supposition that diversion could be prevented, because this Court, in a series of cases, including Darby, Wickard, Wirtz, and Perez, has made clear that the relevant focal point for analysis is not the individual plaintiff's activities and whether they have a substantial effect on interstate commerce, but whether the class of activities that Congress has decided to regulate has such a substantial effect. And, in this case, there's no question that the overall production, distribution, and possession of marijuana and other Schedule I substances has a profound effect on interstate commerce.
03-1454 +++$+++ 4144 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it's not an interstate commerce that you want to foster. I mean, in these other -- in these other cases, Congress presumably wanted to foster interstate commerce in wheat, in Wickard v. Filburn. Congress doesn't want interstate commerce in marijuana. And it seems rather ironic to appeal to the fact that home-grown marijuana would reduce the interstate commerce that you don't want to occur in order to regulate it. I mean, you know, doesn't that strike you as strange?
03-1454 +++$+++ 4145 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, no, it doesn't, Justice Scalia, but let me respond in two ways. First of all, I think it's been clear, at least since the lottery case, that Congress' authority to regulate interstate commerce includes the authority to prohibit items traveling in interstate commerce and to declare something contraband in interstate commerce.
03-1454 +++$+++ 4146 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Absolutely.
03-1454 +++$+++ 4147 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I would suggest that it is a perfectly rational exercise of Congress' judgement to treat marijuana and other Schedule I substances not just as contraband in interstate commerce, but as contraband simpliciter, as contraband for all purposes.
03-1454 +++$+++ 4148 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that's quite a different rational than from Wickard v. Filburn. I mean, it seems to me you're not -- you're not appealing to the fact that it has a substantial impact on interstate commerce. You're appealing to the fact that the power which Congress has to prohibit the use of goods carried in interstate commerce cannot effectively be implemented without this law.
03-1454 +++$+++ 4149 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think there's some truth to that, Justice Scalia, but let me say this. I think what I'm saying is, I'm taking the rational that this Court accepted in Wickard, and I'm applying it to a different regulatory regime. Here, Congress --
03-1454 +++$+++ 4150 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you're applying it to the opposite kind of regulatory -- you're applying it to a regulatory regime in which the government wants to prohibit this subject -- substance from being sold or -- in interstate commerce. And if you just follow the litter -- letter of this law, this marijuana won't get into interstate commerce. In fact, it would reduce the demand for marijuana, because it would supply these local users and they wouldn't have to go into the interstate market.
03-1454 +++$+++ 4151 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, with respect, Justice Stevens, if you took a look at the Controlled Substances Act, itself, and read it literally, you'd assume that there was absolutely no market, period, in Schedule I substances. But the reality is, there's a $10.5 billion market -- illegal market, albeit -- but market in marijuana in the United States, on an annual basis. So --
03-1454 +++$+++ 4152 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But to the extent that this statute has any impact, it will reduce the purchase in the interstate market and confine these to locally grown marijuana.
03-1454 +++$+++ 4153 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first of all, Justice Stevens, that's only true if there will be no diversion, to get back to --
03-1454 +++$+++ 4154 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then I'm assuming -- my hypothetical is that California could pass a law that would prevent diversions from occurring.
03-1454 +++$+++ 4155 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in the same way that the Federal Government has had trouble stamping out the marijuana market entirely, I think California is going to have parallel problems in absolutely preventing diversion.
03-1454 +++$+++ 4156 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But just --
03-1454 +++$+++ 4157 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I suppose some -- one answer to that case is the Perez case, with loan sharking.
03-1454 +++$+++ 4158 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, absolutely, Justice Kennedy. And, in that context, what this Court said is, even though it was focused on what was going to be an -- both in that case and generally, an interstate activity, Congress did not have to just look at the particular plaintiff's effect on interstate commerce, but, rather, the effect of the entire class of activities. And if I could --
03-1454 +++$+++ 4159 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, as Justice O'Connor brought out earlier, all those cases -- Wickard, Perez -- they all involve a commercial enterprise. And, here, we're told this is different, because nobody is buying anything, nobody is selling anything.
03-1454 +++$+++ 4160 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, with respect, Justice Ginsburg, I think the whole point of the Wickard case was to extend rationales that it applied previously to commerce to activity that the Court described as economic, but not commercial. And I think the production and distribution and possession of marijuana is economic in the same way that the production of wheat was in the Wickard case.
03-1454 +++$+++ 4161 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you're -- no, I was going to -- your whole point, I take it, is that the two particular patients in this case are simply -- simply cannot be taken, for our purposes, as representative in the fact that they are getting the marijuana by, I think, growing it themselves or being given it. You're saying, you cannot take that fact as a fact from which to generalize in deciding this case.
03-1454 +++$+++ 4162 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right, Justice Souter, and that is the logic, not just of me, but of this Court's cases, in cases like Darby and Wickard and Wirtz and Perez. And I point to the Wickard case, in particular, only because it, too, involves a non-commercial enterprise or a non-commercial production of --
03-1454 +++$+++ 4163 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I do take issue with that. As I read the record in Wickard, it involved a small farmer. A portion of his wheat went on the interstate market. It also was fed to cattle, which, in turn, went on the interstate market. He used some of it himself, but part of it was commercial. I think Wickard can be distinguished on the facts.
03-1454 +++$+++ 4164 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice O'Connor, it could be -- I mean, any case can be distinguished on the facts, of course, but I think what's important is, this Court, in Wickard, itself, recognized that the case was -- it was only interesting because a portion of the regulated wheat involved wheat that was going to be consumed on the farm. And --
03-1454 +++$+++ 4165 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The other portion is a matter of [inaudible] interstate commerce.
03-1454 +++$+++ 4166 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's true, Justice O'Connor, but this Court, basically, in its opinion, Justice Jackson, for the Court, put aside -- to one side all of the grain that was going to go in interstate commerce, since that's easy under our existing precedents. This case is only interesting, he said, because it involves wheat that's going to be consumed on the farm. And he specifically talked about both the wheat that would be fed to the animals, but also the wheat that would be consumed by the family. And what he said is, the intended disposition of the particular wheat wasn't clear from the record of the case. And, by that, I take him to mean that it wasn't relevant to the Court's analysis in upholding the Agricultural Adjustment Act to the wheat at issue there. And it's important to recognize that the way the Agricultural Adjustment Act worked is, it applied to all the wheat that was grown in excess of the quota, and so it applied to the wheat that was used by the family for consumption of their own bread. And, nonetheless, this Court upheld that as a valid Commerce Clause regulation. And so I think, by parity of reasoning, all of the marijuana that's at issue and covered by the Controlled Substances Act, whether it's lawful under state law, whether it's involved in a market transaction or not, is fairly within the Congress' Commerce Clause --
03-1454 +++$+++ 4167 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And is --
03-1454 +++$+++ 4168 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- authority.
03-1454 +++$+++ 4169 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- this a harder or easier case than Wickard when we know that, in Wickard, it was lawful to buy and sell wheat, and, here, it is unlawful to buy and sell marijuana?
03-1454 +++$+++ 4170 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Kennedy --
03-1454 +++$+++ 4171 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does this make your case easier, in a sense, or --
03-1454 +++$+++ 4172 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it does, Justice Kennedy, because, as I said earlier, in responding to a question from Justice Scalia, I think if you're talking about a context where Congress has the undoubted power to prohibit something in interstate commerce entirely, and has exercised that power, so it treats something as effectively contraband in interstate commerce, and then takes the complementary step, especially in light of the fungibility of the product, and says, "We're just going to treat this as contraband simpliciter." I think that judgement by Congress has a very definite link to interstate commerce and its unquestioned authority to regulate interstate commerce. And I do think there's a sense in which when Congress is regulating the price of something, there's certainly a temptation to excise out relatively small producers and for Congress to say, "Well, we can still have effective regulation if we regulate the vast majority of production." But with respect to something that's unlawful to have and is -- and has very significant risks precisely because it's unlawful, any little island of lawful possession of non-contraband marijuana, for example, poses a real challenge to the statutory regime. It would also, I think, frustrate Congress' goal in promoting health. And I think the clearest example of that is the fact that, to the extent there is anything beneficial, health-wise, in marijuana, it's THC, which has been isolated and provided in a pill form, and has been available as a Schedule III substance, called --
03-1454 +++$+++ 4173 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there's --
03-1454 +++$+++ 4174 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Marinol.
03-1454 +++$+++ 4175 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- but there is, in this record, a showing that, for at least one of the two plaintiffs, there were some 30-odd drugs taken, none of them worked. This was the only one that would. And it -- Justice Souter asked you about these two plaintiffs. The law can't be made on the basis of those two plaintiffs. But let's suppose that you're right, generally. If there were to be a prosecution of any of the plaintiffs in this case, would there be any defense, if there were to be a federal prosecution?
03-1454 +++$+++ 4176 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Ginsburg, I think we would take the position, based on our reading of the Oakland Cannabis case -- and, obviously, different justices on this Court read the opinion differently and had different views on the extent to which the medical-necessity defense was foreclosed by that opinion -- I would imagine the Federal Government, in that case, if it took the unlikely step of bringing the prosecution in the first place, would be arguing that, on the authority of Oakland Cannabis, the medical-necessity defense was not available. But I think, in any event, what is important, at this point, is that we don't have a prosecution; we have an affirmative effort to strike down the Controlled Substances Act in an injunctive action. And I think, in that context, certainly Justice Souter is right, that this Court's precedents make clear that one doesn't consider only the individual's conduct, but the entire class of activities that's at issue. I think, in this regard, it's also worth emphasizing that a deeper flaw in the Respondent's argument, that California law is somehow relevant here or the fact that their conduct is lawful under California law, is that there's a mismatch between what California law makes lawful and what might be considered relevant for arguing that there's an attenuated effect on interstate commerce. Because the California law makes the possession of marijuana for medical use lawful under state law, without regard to whether that marijuana has been involved in a cash transaction or has crossed state lines. And so, if Respondents are right on their Commerce Clause theory, I don't see how they can be right because their conduct is lawful under state law or because their -- that marijuana use is medical. If they're right, then I think their analysis would extend to recreational use of marijuana, as well as medical use of marijuana, and would extend to every state in the nation, not just --
03-1454 +++$+++ 4177 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I think --
03-1454 +++$+++ 4178 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- those states that made it lawful.
03-1454 +++$+++ 4179 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Doesn't it depend on how you define the "relevant class of activities"? Is it the entire class that Congress ought to regulate, or is it a narrower class, in which the Plaintiffs contend that the statute cannot constitutionally be applied to a particular very narrowly defined class? And is it ever permissible to define the class narrowly to escape a -- the broad argument that you make?
03-1454 +++$+++ 4180 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think that is permissible, Justice Stevens. I think that's what this Court's cases in Wirtz, in Darby, in Wickard --
03-1454 +++$+++ 4181 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you're saying that this statute could never have an unconstitutional application.
03-1454 +++$+++ 4182 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under the Commerce Clause, I -- that's exactly right, that would be our position. It is constitutional on its face, and it -- and because of that line of authority, an as-applied challenge can be brought, but the legal test that's applied in the as-applied challenge is one that considers the constitutionality of the statute as a whole --
03-1454 +++$+++ 4183 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, in Morrison, did the Court's opinion not say that Congress cannot justify Commerce Cause -- Clause legislation by using a long but- for causal chain from the activity in question to an impact on interstate commerce? I mean, the Court certainly made that statement.
03-1454 +++$+++ 4184 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, absolutely, Justice O'Connor, but --
03-1454 +++$+++ 4185 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which cuts against what you're saying.
03-1454 +++$+++ 4186 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, with respect, I don't think so. And I'd say two things about it. One, this Court, in Morrison and Lopez, was very important to emphasize -- thought it very important to emphasize two things: one, that the activity there was non-economic in a way that differentiated it, even from Wickard; and, second, the Court also made it clear that the regulation that there -- there was not essential to the effectiveness of an overall regulatory scheme. And I think, on both points, this case is on the constitutional side of the line that separates the Lopez and the Morrison case.
03-1454 +++$+++ 4187 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The argument on the other side is that this limited exception is a non-economic use -- growing for personal use, under prescription --
03-1454 +++$+++ 4188 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I understand that -- I understand that's their argument, Justice O'Connor, but I don't understand how this Court, in Lopez, could have said that Wickard involved non-economic activity if this activity is not also covered. You're talking about --
03-1454 +++$+++ 4189 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Involved economic activity.
03-1454 +++$+++ 4190 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry if I misspoke. Economic activity. Because what you're talking about here is the possession, the manufacture, the distribution of a valuable commodity for which there is a ready -- unfortunately, a ready market, albeit an illicit market.
03-1454 +++$+++ 4191 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If we rule for the Respondents in this case, do you think the street price of marijuana would go up or down in California?
03-1454 +++$+++ 4192 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would be speculating, Justice Kennedy, but I think the price would go down. And I think that what -- and that, in a sense, is consistent with the government's position, which is to say, when the government thinks that something is dangerous, it tries to prohibit it. Part of the effort of prohibiting it is going to lead to a black market, where the prohibition actually would force the price up. And there is a sense in which this regulation, although not primarily designed as a price regulation -- the Controlled Substance Act, I think, does have the effect of increasing the price for marijuana in a way that stamps down demand and limits the -- and in a way that reduces demand. And I think that's all consistent with Congress' judgement here. And if I could return for a second to the point about Marinol, what's important there is that the process of manufacturing of Marinol, and isolating the one helpful component, does two things. One, the manufacturing process allows there to be a safe use for one of the components in marijuana. But it also provides an unambiguous hook for Congress to exercise its Commerce Clause authority. And yet the overall regime of trying to get people to use more healthful substances, and not use things like crude marijuana that have harmful effects, is undermined if Congress can't also address that which is more harmful, but is distinct only because it is capable of being locally produced. And that's exactly what crude marijuana is.
03-1454 +++$+++ 4193 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In other words, the statute is -- it trumps the independent judgement of the physicians who prescribe it for the patients at issue in this case.
03-1454 +++$+++ 4194 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think, in responding to that, Justice Stevens, I would say, obviously, for purposes of federal law, the idea of medical marijuana is something of an oxymoron, because the Federal Government treats it as a Schedule I substance. Now, notwithstanding that, some doctors may make a different judgement about a particular patient; but that's something that this Court, I think, has previously understood, that the federal regulatory regime does not allow individual patients or doctors to exempt themselves out of that regime.
03-1454 +++$+++ 4195 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
03-1454 +++$+++ 4196 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's the import of the Rutherford decision with Laetrile.
03-1454 +++$+++ 4197 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you think there could be any state of facts on which a judicial tribunal could disagree with the finding of Congress that there's no acceptable medical use? Say they had a -- say there was a judicial hearing on which they made a contrary finding. Would we have to ignore that? Would we have to follow the congressional finding or the judicial finding if that happened?
03-1454 +++$+++ 4198 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it depends on the exact hypothetical you have in mind. I think the -- the judicial finding that I think would be appropriate, and this Court would not have to ignore in any way, is a finding by the D.C. Circuit that, in a particular case where there's a rescheduling effort before the FDA, that the underlying judgement of the FDA refusing to reschedule is invalid, arbitrary, capricious. That's the way to go after the finding that marijuana is a Schedule I substance without a valid medical use in treatment. This is not a situation in -- and your hypothetical might respond to a different statute that raised a harder question, where Congress made such a medical finding, and then just left it there without any mechanism to adjust the finding for changing realities. But, here, Congress made it clear that a process remains open to reschedule marijuana in a way that gets it onto Schedule II or Schedule III. And I think it's wrong to assume that there's any inherent hostility to the substances at issue here. I mean, the FDA, for example, rescheduled Marinol from Schedule II to Schedule III in a way that had the effect of making it easier to prescribe and more available. But I think what's going on with the FDA is an effort to try to counterbalance the risk for abuse, the risk for diversion, with these other considerations of getting safe medicine --
03-1454 +++$+++ 4199 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Have there --
03-1454 +++$+++ 4200 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- available to patients --
03-1454 +++$+++ 4201 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- have there been any applications to change the schedule for marijuana to the FDA?
03-1454 +++$+++ 4202 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There have been a number of those petitions that have been filed. There was one recently rejected, I think as recently as 2001; it may be 1999. There was also a series of, kind of, a four- or five-iteration effort to change the rescheduling that culminated in a D.C. Circuit opinion in the early '90s. So there's definitely been these efforts. But on the current state of the -- of the record, there just is not a justification for changing the schedule. And I think both of the briefs talked a little bit about the Institute of Medicine's study about the medical efficacy of marijuana. And I think one thing that's important to keep in mind that that study comes to a conclusion about is, whatever benefits there may be for the individual components in marijuana, that smoked -- smoked marijuana itself really doesn't have any future as medicine, because -- and that's true, I think, for two reasons. One, there's something like 400 different chemical components in crude marijuana that one would smoke, and it's -- it just, sort of, belies any logic that all 400 of those would be helpful. And a big part of the process of medicine, generally, is to take raw, crude material that somebody could grow in their garden, and actually have people who do this for a living get involved in a process of synthesizing and isolating the beneficial components, and then manufacturing and making that available. The second reason that smoked marijuana doesn't have much of a future as medicine is, as I think people understand, smoking is harmful; and that's true of tobacco, but it's also true of marijuana. And so the idea that smoked marijuana would be an effective delivery device for medicine, I think, is also something that really doesn't have any future as medicine. What does have a future for medicine, of course, is an effort to synthesize and isolate the beneficial component. That's been done with Marinol. It is true that some people have difficulty tolerating the pill form that Marinol is available in. And there's ongoing research to try to figure out different ways to deliver that substance. But there is, in a sense, a little bit of a -- and the Institute of Medicine's study has about five pages discussing Marinol, and it makes the point that there's something of a tradeoff. Because one of the downsides of Marinol, as opposed to marijuana, is that it takes longer to get into the bloodstream. But that's also one of the reasons why the FDA has made a judgement that Marinol is less subject to abuse, because it takes longer to get into the drug-stream, and so it doesn't have the characteristic of street drugs that tend to be abused, which is a very quick delivery time between the taking of the substance and the time that it has an effect on the system.
03-1454 +++$+++ 4203 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I go back to your point a few minutes ago about -- it was, sort of, a categoric point -- you, in effect, said, "If this argument succeeds with respect to medical use of marijuana, the next argument is going to be recreational use, and there's no real way to distinguish between them." Wouldn't this be a way to distinguish between them? That in deciding what class you are going to -- or what subclass you're going to consider from which to generalize, you simply ask the question, "What good reasons are there to define a subclass this way?" In this particular case, the good reasons to define a subclass of medical usage are the benefits -- whether you accept the evidence is another thing -- but the benefits which the doctors say that, under present circumstances, you can get from smoking it, as opposed to taking the synthesized drug. There's no such argument, I would guess, in favor of recreational marijuana usage as a separate category. And, for that reason, isn't there a -- isn't there a good reason to categorize this as narrowly as the Respondents are doing here, just medical usage, without any risk of generalizing to recreational usage?
03-1454 +++$+++ 4204 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect, Justice Souter, I don't think that it would be a good idea for this Court to get on a path of starting to second-guess Congress' judgement about defining a class of activities --
03-1454 +++$+++ 4205 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That may -- oh, that may be, but it seems to me that that's a separate argument, because you're -- you were arguing before that if you recognize medical usage, you don't have any way of drawing the line against private recreational usage. And I'm suggesting that you do have a reason for drawing that line, and it's the benefit for medical usage, if you accept the evidence; whereas, there is no reason to categorize recreational usage separately, and that seems to me a category argument, rather than a respect-for-Congress argument.
03-1454 +++$+++ 4206 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Souter, I have no doubt that this Court could draw a line. I think it would find it very difficult to police that line over the broad variety of cases. I think it would find it every bit as frustrating as policing the line in Hammer against Dagenhart that this Court abandoned in Darby. With that, I'd like to reserve my time for rebuttal.
03-1454 +++$+++ 4207 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Barnett.
03-1454 +++$+++ 4209 +++$+++ FALSE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: I have two points to make. First, the class of activities involved in this case are non-economic and wholly intrastate. Second, the federal prohibition of this class of activities it not essential -- is not an essential part of a larger regulatory scheme that would be undercut unless the intrastate activity were regulated. If you accept the government's contrary contentions on either of these two points, Ashcroft v. Raich will replace Wickard v. Filburn as the most far-reaching example of Commerce Clause authority over intrastate activity.
03-1454 +++$+++ 4210 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, on your first point, can't we infer from the fact that there's an enormous market, commercial market, for any given commodity, that simple possession of that commodity is a form of participation in the market?
03-1454 +++$+++ 4211 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It can be, or it might not be. If you possess an item that came from the market or is going to the market, simple possession could easily be a part of the marketplace. But if you're in possession of an item that you've made, yourself, that is disconnected from the market -- it didn't come from the market and it's not going to the market --
03-1454 +++$+++ 4212 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but it's fungible.
03-1454 +++$+++ 4213 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- the fungibility issue is in this case, but the -- but a -- the fact that a good is fungible does not make it a market good, and it does not make the possession of that good an economic activity. Or --
03-1454 +++$+++ 4214 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you know, Congress has applied this theory in other contexts. One is the protection of endangered species. Congress has made it unlawful to possess ivory, for example. It doesn't matter whether you got it lawfully, or not; or eagle feathers, the mere possession of it, whether you got it through interstate commerce or not. And Congress' reasoning is, "We can't tell whether it came through interstate commerce or not, and to try to prove that is just beyond our ability; and, therefore, it is unlawful to possess it, period." Now, are those -- are those laws, likewise, unconstitutional, as going beyond Congress' commerce power?
03-1454 +++$+++ 4215 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not if they're an essential part of a larger regulatory scheme that would be undercut, unless those activities are reached.
03-1454 +++$+++ 4216 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why is that different from this?
03-1454 +++$+++ 4217 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because this class of activities -- because it's been isolated by the State of California, and is policed by the State of California, so that it's entirely separated from the market --
03-1454 +++$+++ 4218 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isolated and -- I understand that there are some communes that grow marijuana for the medical use of all of the members of the communes.
03-1454 +++$+++ 4219 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That class of activities is not before the Court. That is actually before --
03-1454 +++$+++ 4220 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but it's before the Court when you -- when you raise the policing of the problem by California, and saying it's not a -- it's not a real problem, you brought it before the Court.
03-1454 +++$+++ 4221 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that class of activities could be -- could be -- if this Court limits its ruling to the class of activities that is before the Court, that class --
03-1454 +++$+++ 4222 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which is -- which is what?
03-1454 +++$+++ 4223 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Which is --
03-1454 +++$+++ 4224 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ An individual grower?
03-1454 +++$+++ 4225 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ An individual who is growing it for her -- him- or herself, who has -- or has a caregiver growing it for her --
03-1454 +++$+++ 4226 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Gee, what basis --
03-1454 +++$+++ 4227 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- for --
03-1454 +++$+++ 4228 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- what basis is there to draw it that narrowly? I mean, I guess if we -- we could say people whose last name begins with a Z. You know, that would narrow the category, too. But why does -- why does that make any sense?
03-1454 +++$+++ 4229 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, we believe it makes sense because we are talking about a classification of activities that has been identified by the State of California, and which is rational to distinguish from --
03-1454 +++$+++ 4230 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, but California hasn't identified individual growers. Communes are okay, as far as California law is concerned.
03-1454 +++$+++ 4231 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's not entirely clear whether communes are okay, as far as the California laws are concerned.
03-1454 +++$+++ 4232 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why wouldn't it be?
03-1454 +++$+++ 4233 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because if, in fact, commercial activity is taking place, if buying and selling is taking place --
03-1454 +++$+++ 4234 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no, they're not buying and selling. I mean, you can't prove they're buying and selling. There are just a whole lot of people there, with alleged medical needs.
03-1454 +++$+++ 4235 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, I don't understand. Is there any authority in the commerce cases for -- an X, which is there in the middle of a state, and it doesn't move one way or the other -- now, Congress' power does extend to the X if the state doesn't say something about the X. But if the state says something about the X, then Congress' power does not extend to it. That's hard for me to accept, because I don't see -- whether it's commerce or not commerce, whether it affects something or doesn't affect something, doesn't seem to me to have much to do with whether the state separately regulates it, and I can't find any support at all for that in any case.
03-1454 +++$+++ 4236 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The support would come from the exception to Lopez and Morrison that the government is urging that the Court adopt, that the Congress can reach non-economic activity that's intrastate, that's wholly intrastate, if doing so is essential to a larger regulatory scheme that would be undercut if they can't reach it.
03-1454 +++$+++ 4237 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, here, they say -- look, I take it you're using this because I was going to ask you. You know, he grows heroin, cocaine, tomatoes that are going to have genomes in them that could, at some point, lead to tomato children that will eventually affect Boston. You know, we can -- oil that's never, in fact, being used, but we want an inventory of it, federally. You know, I can multiply the examples --
03-1454 +++$+++ 4238 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1454 +++$+++ 4239 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and you can, too. So you're going to get around all those examples by saying what?
03-1454 +++$+++ 4240 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ By saying that it's all going to depend on the regulatory scheme, what the --
03-1454 +++$+++ 4241 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah.
03-1454 +++$+++ 4242 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- purpose of the --
03-1454 +++$+++ 4243 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So now what you're saying is, in a Commerce Clause case, what we're supposed to do is to start to look at the federal scheme and the state scheme and see, comparing the federal scheme and the state scheme, whether, given the state scheme, the federal scheme is really necessary to include this. That's a task, and I'm trying to make it as complicated as I can in my question. [Laughter.]
03-1454 +++$+++ 4244 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I see it very well. Here is what they say. They say that, "By the way, a hundred-thousand people using medical marijuana in California will lead to lower marijuana prices in the nation. Bad. And, second, when we see medical marijuana in California, we won't know what it is. Everybody'll say, 'Mine is medical.' Certificates will circulate on the black market. We face a mess. For both those reasons, it does have an impact," they say. Now, what's your response?
03-1454 +++$+++ 4245 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you've raised at least two different practical issues. One is the fact -- the number of people who are in the class, and the second is the ability to identify whether they properly belong in the class. As for the number of people, we are talking about a very small number of people. They say a hundred-thousand. They get their figures from the National Organization from Reform of Marijuana Laws. Our figures in our brief come from the government. The figures show it's a very small fraction of persons that would be involved. And their argument is basically -- and the logic of your hypothetical is premised on -- the more people that go into the illicit market, the better for federal drug policy, because that will drive the price up. You have to -- what we're take -- we're doing is, we're taking people out of the illicit drug market, which then, under your hypothetical, would lead to a reduction -- and Justice Kennedy's suggestion -- would lead to a reduction in the price of the illegal market, which, the opposite would be, they're -- it's good for federal policy to have more people in the illicit drug market, because that's going to drive the price up.
03-1454 +++$+++ 4246 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no, we don't want more people --
03-1454 +++$+++ 4247 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course not.
03-1454 +++$+++ 4248 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- in the illicit drug market. [Laughter.]
03-1454 +++$+++ 4249 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course not.
03-1454 +++$+++ 4250 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And we don't want low prices, either. [Laughter.]
03-1454 +++$+++ 4251 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the -- but the -- but the scheme of -- but the class of activities that have been authorized by the State of California will take people out of --
03-1454 +++$+++ 4252 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, normally I would have said, it's up to Congress to figure out how to -- the way that -- you have one going one way, one going the other way, and balancing those factors would be for Congress. That's what we'd normally say.
03-1454 +++$+++ 4253 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1454 +++$+++ 4254 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you say all that stuff is not for Congress; that's for us.
03-1454 +++$+++ 4255 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, within this exception -- the threshold issue -- I do want to make sure that I focus on this -- the threshold issue, which is the issue that has occupied most of our time so far, is whether the activity here is economic or non-economic. The government claims it's economic, we claim it's non-economic.
03-1454 +++$+++ 4256 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what it is, is, it's non-economic, and it affects the economic.
03-1454 +++$+++ 4257 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. So the threshold issue that is -- that -- upon which Lopez and Morrison terms -- turns is whether it's economic or non-economic.
03-1454 +++$+++ 4258 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I should have thought that regular household chores of -- say, performed in an earlier time mostly by women, was classically economic -- washing dishes, making bread. And now you say growing marijuana isn't?
03-1454 +++$+++ 4259 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you accept the government's definition of economic, then every -- then washing dishes, today, would be economic, and that --
03-1454 +++$+++ 4260 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but even --
03-1454 +++$+++ 4261 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- would be within the -- within the power of Congress to reach.
03-1454 +++$+++ 4262 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But even if we accept your definition of economic, I don't see that it is a basis upon which we ought to make a category decision. You say it's non-economic because one of these people is a -- is a self-grower, another one is getting it from a friend for nothing. But I don't see what reason that you have given, or any reason that you haven't given, for us to believe that, out of -- now I'm going to assume, for the sake of argument, a hundred-thousand potential users -- everybody is going to get it from a friend or from plants in the backyard. Seems to me the sensible assumption is, they're going to get it on the street. And once they get it, under California law, it's not a crime for them to have it and use it. But they're going to get it in the street. Why isn't that the sensible assumption?
03-1454 +++$+++ 4263 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they have an -- they have a very strong incentive not to get it on the street, because getting it on the street is going to subject them to criminal prosecution, under both California and federal law, as well as the --
03-1454 +++$+++ 4264 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, but the -- it's also the case that approximately 10 percent of the American population is doing that every day, if I accept the figures in the government's brief, and they're not getting prosecuted.
03-1454 +++$+++ 4265 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But we're talking -- in that case, we're talking about people who are using it for sport, for recreation. We are talking about a class of people here who are sick people, who don't necessarily want to violate the law.
03-1454 +++$+++ 4266 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if I am a sick person, I'm going to say, "Look, if they're not prosecuting every kid who buys, what, a nickel bag or whatever you call a small quantity today, they're not going to prosecute me, either." I mean, there's not going to be any incentive, it seems to me, to avoid the street market.
03-1454 +++$+++ 4267 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The government, in their brief, asserts that the -- that the possession statute that currently exists provides a deterrent effect, which is why they -- which is their explanation for why they failed to enforce the possession statute that they say is so essential to the --
03-1454 +++$+++ 4268 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If one --
03-1454 +++$+++ 4269 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- regulatory scheme.
03-1454 +++$+++ 4270 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- if one takes your view, that this is non-economic activity, so it's outside Congress' commerce power, then explain to me why, if you have someone similarly situated in a neighboring state, somebody whose doctor says, "This person needs marijuana to live," but that state doesn't have a Compassionate-Use Act -- it's just as isolated -- no purchase, no sale, grown at home, good friend grows it -- and yet you say Congress could regulate that, if I understand your brief properly.
03-1454 +++$+++ 4271 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your -- yes, Your Honor, because there's the -- that's the second step of the analysis. The first step of the analysis is the economic/non-economic. If you don't -- if the Court stops there, then they could also apply in these other states. But then if the Court adopts --
03-1454 +++$+++ 4272 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if you -- if you buy that -- so your first answer is, yes, on your first argument, it would be equally impermissible for the feds to regulate medical use anywhere.
03-1454 +++$+++ 4273 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
03-1454 +++$+++ 4274 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Now you're going to have some limiting --
03-1454 +++$+++ 4275 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But a limiting principle is the one that I -- was identified by the Court in Lopez in which the government is asserting that if it's an essential part of a broader regulation of economic activity to reach this activity, then it may be reached. And the difference between states in which there is a state law enforcement that's confining the class, and that there is a discrimination between legal and non-legal use, is completely different from a practical enforcement standpoint than a state in which there is no differentiation. Just think of the existence, for example, of identification cards, which the State of California is going to be issuing, like driver's license cards.
03-1454 +++$+++ 4276 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, but it doesn't right now, and that doesn't make the scheme less valid, in your view.
03-1454 +++$+++ 4277 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, because -- but this is the sort of regulation -- the sort of effectiveness of the regulation that will be at issue and which is, in fact -- I believe the Court should be in the position of trusting the State of California to be able to administer its regime. There is no regime in other states to trust, and, therefore, the argument that it is necessary to reach that activity, and a lot of other activity in states in which the states are not attempting to pursue the health of their citizens -- the goal of preserving the health of their citizens this way, that would fall under the exception which this Court suggested in Lopez --
03-1454 +++$+++ 4278 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is a new framework, I take it, and it's very interesting. And one of the things that interests me -- I guess, on your framework, Lopez should have come out my way. [Laughter.]
03-1454 +++$+++ 4279 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1454 +++$+++ 4280 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's essential to regulate guns in schools as part of a national gun-control regulatory scheme.
03-1454 +++$+++ 4281 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, that's the reason why that exception has to be narrowly treated, so it doesn't reach your result. [Laughter.]
03-1454 +++$+++ 4282 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If that exception were treated as broadly as you suggested that it should be in your dissent in Morrison, then the game is up, the exception will swallow the rule, and Lopez and Morrison will be limited to their facts.
03-1454 +++$+++ 4283 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought we didn't need to reach all that here, for the reason that the connection here, which is an enforcement-related connection and a market-related connection, is actually, I have to confess, a little more obvious and a little more close than what I had to -- what I had to say in Lopez to -- was the connection between guns, education, communities, and business. So I would have thought, given the -- and I believe that, you know -- but, I mean -- but that was far further than this, which is just direct.
03-1454 +++$+++ 4284 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But this case is completely unlike those cases. This case is completely isolated. In Lopez, that gun probably did come through interstate commerce, not that I believe it should have made any difference, but it probably did. Here, we're talking about substances that don't. So there's just no literal connection between this class of activities and this interstate market.
03-1454 +++$+++ 4285 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, we didn't decide that, in Lopez, on the basis of whether the gun had come in interstate commerce. If the statute in question had applied only to guns that had been transported in interstate commerce, the case might have come out differently.
03-1454 +++$+++ 4286 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- no doubt, Your -- I -- and I wasn't suggesting otherwise, Justice Scalia. I'm just suggesting that, here, we have -- exactly, that if there had been that interstate connection in Lopez, the case might have come out different. There is no interstate connection whatsoever in this class of cases. None. The only way to make it an interstate connection is through some sort of hypothetical economic substitution effect in which somebody who's doing something over here is going to have an affect on somebody else who's doing something over there. There is no connection.
03-1454 +++$+++ 4287 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Sounds like Wickard to me.
03-1454 +++$+++ 4288 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Wickard, Your Honor --
03-1454 +++$+++ 4289 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I always used to laugh at Wickard, but that's -- that's what Wickard said.
03-1454 +++$+++ 4290 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Wickard --
03-1454 +++$+++ 4291 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Had he not eaten the wheat, it would have been in interstate commerce.
03-1454 +++$+++ 4292 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Had that case been about eating wheat, that case would never have arisen.
03-1454 +++$+++ 4293 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's what it was about, as far as the Court's analysis was concerned. To be sure, there were a lot of -- there was a lot more use of the wheat on his farm, other than just human consumption, but it seems to me the analysis of the case said, "You take it -- you take it out of the stream of commerce by growing it yourself, you make it unnecessary for your -- to buy it in interstate commerce."
03-1454 +++$+++ 4294 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's -- the entire analysis -- the entire proof that the court relied upon in Wickard was proof of the economic impact of home-consumed wheat on the farms. And by "home-consumed," it did not mean eating at the family -- at the family table; it meant feeding to your livestock and then putting it -- your livestock --
03-1454 +++$+++ 4295 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Strange phrase, to mean "feeding to livestock"?
03-1454 +++$+++ 4296 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the --
03-1454 +++$+++ 4297 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ "Home-consumed" is feed it to your pig?
03-1454 +++$+++ 4298 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, yes, that's exactly what --
03-1454 +++$+++ 4299 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't think so.
03-1454 +++$+++ 4300 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that's exactly what that general term -- how that general term was used in this case.
03-1454 +++$+++ 4301 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what the Court said, I take it -- and I have quoted a lot of the language there -- it says that the wheat farmer's consumption of home-grown wheat, not the part that went in -- quote, "though it may not be regarded as commerce" --
03-1454 +++$+++ 4302 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
03-1454 +++$+++ 4303 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- end quote, still can be regulated, quote, "whatever its nature," so long as, quote, "it exerts a substantial economic effect on interstate commerce." Now, that's the language, and I take it that Justice Scalia is exactly right, I thought, from that language, it's about the analysis, home-grown wheat, which is not economic, having an effect on something that is.
03-1454 +++$+++ 4304 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With all respect --
03-1454 +++$+++ 4305 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which is not commerce. Sorry, not commerce.
03-1454 +++$+++ 4306 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With all respect, what -- that's -- I was about to make that --
03-1454 +++$+++ 4307 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the Commerce Clause speaks in terms of commerce.
03-1454 +++$+++ 4308 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. Right. What the Court was using here was the narrower -- the traditional definition of "commerce" that Justice Thomas has been urging this Court to adopt. And they were saying that, "We are not going to limit ourselves to that narrow definition of 'commerce.'" It would include, for example, agriculture and production. That's all going to be reachable, even though it's not commerce, in the traditional sense. But what we would call it today, and I believe what the Court correctly called it, in Lopez, was "economic activity." Production is economic activity. Manufacturing is economic activity. But -- it's not commerce, but it's economic activity that can be reached. And that is the activity -- that's not only the activity that Farmer Filburn was engaged in; that was the activity that the statute was aimed at. The statute --
03-1454 +++$+++ 4309 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why is this not economic activity, if you use the term in that broad sense? This marijuana that is grown, just like the wheat that was grown, in Wickard, since it's grown on the farm, doesn't have to be bought elsewhere, and that makes it an economic activity.
03-1454 +++$+++ 4310 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What made it an economic activity in Wickard was the fact that it was part of commercial enterprise, that it was being used on the farm -- not in interstate commerce, but part of the commercial enterprise of the farm.
03-1454 +++$+++ 4311 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Again, I don't think that's -- that faithfully represents what the opinion said. I think the opinion covered -- including the amount that he consumed himself, and his family consumed.
03-1454 +++$+++ 4312 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- look, I -- for whatever it's worth, it's worth remembering that the statute exempted small commercial farms. People who had backyard gardens weren't even included within the regulatory regime. The regulatory regime was about regulating or stopping or restricting the supply of wheat that got into the market, or that could have --
03-1454 +++$+++ 4313 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did the opinion make a point of that?
03-1454 +++$+++ 4314 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Pardon me?
03-1454 +++$+++ 4315 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did the opinion make a point of that?
03-1454 +++$+++ 4316 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it was mentioned in the opinion. It was not -- it was not a major point of this opinion. But --
03-1454 +++$+++ 4317 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't think it was a point of the Court's analysis at all.
03-1454 +++$+++ 4318 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This --
03-1454 +++$+++ 4319 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could I -- could I --
03-1454 +++$+++ 4320 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could I ask this question. What is your view with respect to the impact of the activities concerned in this case on the interstate market for marijuana? Is it your view that it will have no impact, that it will increase the interstate demand, or decrease the interstate demand? So there are three alternatives. Which is the one we should follow?
03-1454 +++$+++ 4321 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Can I pick "trivial impact"? [Laughter.]
03-1454 +++$+++ 4322 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but if it -- "trivial impact," is it a trivial impact that enhances the price of marijuana or decreases the price of marijuana, in your view?
03-1454 +++$+++ 4323 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The only effect it could have on the price would be a slight trivial reduction, if it has any effect at all, because it's going to withdraw users from the illicit drug market. And to the extent that they are now in the illicit drug market -- and we don't know whether they are or not --
03-1454 +++$+++ 4324 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that would reduce demand and increase price, it seems to me. It's the other way around.
03-1454 +++$+++ 4325 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it would reduce demand and reduce prices, I think. But --
03-1454 +++$+++ 4326 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you reduce demand, you reduce prices? Are you sure?
03-1454 +++$+++ 4327 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. [Laughter.]
03-1454 +++$+++ 4328 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, you're right. You're right. Okay. Yeah. Yeah.
03-1454 +++$+++ 4329 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your whole argument for triviality, though, goes -- your whole argument for triviality, though, goes back to your disagreement with the government about how many people are involved, because I take it you accept the assumption that the more people who are involved -- if there are millions and millions, it is unlikely that this licensed activity is going to be without an effect on the market. So the whole argument boils down to how many people are going to be involved. You don't accept the government's 100,000-dollar figure. Let me ask you a question that would -- that would get to, maybe, a different number, and that is, do you know how many people there are in California who are undergoing chemotherapy at any given time?
03-1454 +++$+++ 4330 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do not know the answer to that.
03-1454 +++$+++ 4331 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't that number going to be indicative of the demand for marijuana?
03-1454 +++$+++ 4332 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could be, Your Honor, but that also illustrates --
03-1454 +++$+++ 4333 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if you -- if you accept that, then there's nothing implausible about the government's hundred-thousand number, is there?
03-1454 +++$+++ 4334 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But whatever -- I don't know, because I don't know the number of people using chemotherapy. But whatever the number --
03-1454 +++$+++ 4335 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How many people are there in California? What's the population?
03-1454 +++$+++ 4336 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thirty-four million.
03-1454 +++$+++ 4337 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Kennedy.
03-1454 +++$+++ 4338 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Lots -- lots -- [Laughter.]
03-1454 +++$+++ 4339 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- lots and lots. They -- a hundred-thousand cancer patients undergoing chemotherapy does not seem like an implausible number. And, in fact, if that number is a plausible one today, its plausibility reflects, among other things, the fact that there is a controversy as to whether California's law, in fact, is enforceable, or not. And the reason -- there is reason to assume that -- if we ruled your way, that that number would go up. So, if you accept that line of argument, then your argument, that the effect, whatever it may be, is going to be trivial, seems to me unsupportable. Am I missing something?
03-1454 +++$+++ 4340 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, two things. First of all, whatever number it is, it's going to be confined to people who are sick, who are sick enough to use this. That is not an infinitely expandable number, the way, for example, recreational activity is, where lots of people could just decide to do it. We're talking about people who qualify, on a physician's recommendation, for this particular activity. That will limit the number. But the amount of the people -- the effect on commerce only matters if the Wickard v. Filburn aggregation principle applies to the class of activities in this case, and it does not apply to the class of activities in this case if they are non-economic, as we assert that they are.
03-1454 +++$+++ 4341 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well -- but that is circular reasoning, because the whole -- your whole argument that it's non-economic is based on the claim that there are -- the numbers are so few -- the number of people involved, from what you could generalize, are so few that it would not be reasonable to infer an effect on the market. If there would be a large market effect, it makes no more sense to call this non-economic than Filburn's use, non-economic.
03-1454 +++$+++ 4342 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Lopez and Morrison stand for the proposition that activities that simply have an effect on the market are not necessary -- that does not make them economic. This Court rejected that proposition, that just because an activity has an effect -- an economic effect makes the activity, itself, economic. It adopted a principle that's less than --
03-1454 +++$+++ 4343 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Remote, remote, remote economic effect.
03-1454 +++$+++ 4344 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It was inference upon inference upon inference. That's not what we're talking about here.
03-1454 +++$+++ 4345 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But just -- just have it -- just -- whether an activity is economic, you have to look to the activity, itself, and an economic activity is one that's associated with sale, exchange, barter, the production of things for sale and exchange, barter. This whole Court's jurisprudence since The New Deal has been premised on the ability to tell the difference between economic activity, on the one hand, and personal liberty, on the other.
03-1454 +++$+++ 4346 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But your whole jurisprudence in this case is premised on the assumption that we have got to identify the entire range of potential effect based on the particular character of two individuals in their -- in their supply of marijuana. And the whole point of this argument is that that does not seem to be a realistic premise on which to base constitutional law.
03-1454 +++$+++ 4347 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The premise of our -- the premise of our economic claim is the nature of the activity involved, not necessarily its effect, but the kind of activity it is. The idea -- for example, you -- prostitution is an economic activity. Marital relations is not an economic activity. We could be talking about virtually the same act. And there is a market overhang for -- from private sexual relations to prostitution, but we don't say that because there is a market for prostitution, that, therefore, everything that is not in that market is economic. We look at the activities, and we --
03-1454 +++$+++ 4348 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'd like to ask you one question about the activity --
03-1454 +++$+++ 4349 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1454 +++$+++ 4350 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- which was brought up before, and I just -- I've never understood this. I'm not an expert. I don't honestly know, if I really think about it, despite all the papers and so forth, whether it's true that medical marijuana is helpful to people in ways that pills are not. I really don't know. So I would have thought that the people, like your clients, who have a strong view about it, would go to the FDA, and they would say to the FDA, "FDA, take this off the list. You must take it off the list if it has an accepted medical use and it isn't lacking in safety." The FDA will say yes or it will say no. If it says yes, they win. If they say no, they can come right into court and say, "That's an abuse of discretion." The Court says yes or no. If it says yes, they win. If it says no, it must be because it wasn't an abuse of discretion, in which case, I, as a judge, and probably as a person, would think it isn't true that marijuana has some kind of special use. So that would seem to me to be the obvious way to get what they want. That seems to me to be relevant to the correct characterization. And while the FDA can make mistakes, I guess medicine by regulation is better than medicine by referendum.
03-1454 +++$+++ 4351 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1454 +++$+++ 4352 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So that's -- I just want to know why.
03-1454 +++$+++ 4353 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, first of all, that whole process wouldn't dictate what the power of Congress is to reach this activity --
03-1454 +++$+++ 4354 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's all true, but as long as that hasn't been done, don't I have to take this case on the assumption that there is no such thing as medical marijuana that's special and necessary?
03-1454 +++$+++ 4355 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would --
03-1454 +++$+++ 4356 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If has been done, maybe I shouldn't make it.
03-1454 +++$+++ 4357 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I would simply ask Your Honor to read the amicus brief by Rick Doblin, in which it describes the government's obstruction of scientific research that would establish the safety and efficacy of cannabis by denying supplies of cannabis -- of medical -- of cannabis for medical experimentation. And then I'd ask Your Honor to read the Institute for Medicine's report, that both the government and I -- and we have relied upon in our briefs. There has been no impeachment of this report by the National Academy of Sciences on the medical effect. And what they say is that the -- that what information we have is that cannabis does have a substantial medical effect. Smoked cannabis does carry with it harms associated with it, as the -- as General Clement correctly pointed out. It does carry with it these ancillary harms. But when people are sick and people are suffering and people are dying, they may be willing to run the risk of these long-term harms in order to get the immediate relief, the life-saving relief that cannabis has demonstrably been able to provide. I'd just ask Your Honor to look at that, which is in the record.
03-1454 +++$+++ 4358 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are prescriptions, under California law, limited only to those people with life-threatening illnesses?
03-1454 +++$+++ 4359 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They are limited to a list of illnesses that are in the statute.
03-1454 +++$+++ 4360 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Some of the illnesses --
03-1454 +++$+++ 4361 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Some of which are life-threatening and some of which are not, Your Honor.
03-1454 +++$+++ 4362 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In one -- in one plaintiff's case, I think, there isn't a life-threatening --
03-1454 +++$+++ 4363 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. She has -- she has severe back spasms and pain that cannot be controlled by conventional medicines. She's a law-abiding citizen. This goes back to the issue of what the -- incentives there are that are created by this. This is a law-abiding woman, who has never been interested in the illicit-drugs market.
03-1454 +++$+++ 4364 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I just ask you one procedural question?
03-1454 +++$+++ 4365 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1454 +++$+++ 4366 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And this is -- this is a suit for an injunction. And it -- basically an injunction against a criminal prosecution.
03-1454 +++$+++ 4367 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And seizure --
03-1454 +++$+++ 4368 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And --
03-1454 +++$+++ 4369 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of these plants.
03-1454 +++$+++ 4370 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and there's an old saying, in equity, that courts don't enjoin criminal prosecutions. So how is your injunction suit appropriate, given that old saying meant that you have to make your defense in the criminal proceeding and not enjoin this operation?
03-1454 +++$+++ 4371 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it is -- it is an -- we're seeking an injunction to prevent the enforcement of the statute against these two persons, which includes forfeiture, which has already happened in this case. We've already had Diane Monson's plants seized by the Drug Enforcement Authority. That is not something that we -- that we -- that has anything to do with criminal prosecution, and yet that puts at risk her supply of medicine, the supply of medicine she needs to get by, to relieve her suffering. I see my time is up. Thank you.
03-1454 +++$+++ 4372 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Barnett. General Clement, you have four minutes.
03-1454 +++$+++ 4374 +++$+++ FALSE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens, and may it please the Court: As I understand Respondents' position, it's effectively that their clients, and clients like them, in their use of medical marijuana, is somehow so hermetically sealed from the rest of the market on marijuana that it has no effect on that market on marijuana and no effect on the government's overall regulatory regime. And I understand that to be true largely because of state law. And one of the many problems with that mode of analysis is that the state law is not designed only to carve out those transactions that have no effect on interstate commerce or no effect on the federal regulatory regime. Proposition 215 was not passed as an exercise in cooperative federalism; it was passed as an effort to make medical marijuana lawful to possess, whether you bought it in interstate commerce, whether you bought it with the marijuana having traveled in interstate commerce, whether you bought it, whether you grew it yourself. There's a fundamental mismatch with their theory that really, I think, undermines their theory. Now, there's the question now about what kind of impact this would have on the federal enforcement scheme. Now, we, in our reply brief, try to use the numbers from one of Respondents' own amici, and we suggest that there's a hundred-thousand people that might be lawful medical users, if their position prevails. Now, obviously, this is all an effort in, sort of, counter-factual speculation, so the numbers may be a bit off. But they suggest that our own government numbers are somehow better, and they cite them on page 18 of the red brief. But the only numbers on the red brief for California suggest that, in the four counties for which there are data, there was -- .5 percent of the people use marijuana. Now, if you extend that out statewide to the 34 million people in California, that gives you 170,000 people. So their numbers -- using the government numbers actually give you more potentially affected people. I think in trying to figure out how many people would be affected, it's worth considering what medical conditions are covered. And this responds to Justice Kennedy's last question, Is this just limited to AIDS or people with terminal cancer? And it's not. And if you want to look at what is covered as a serious medical condition under the statute, you can turn to page 7(a) of the red brief, in the appendix to the red brief, and it suggests that a serious medical condition -- there's a catchall at the end that includes subsection 12 -- "Any other chronic or persistent medical system that, if not alleviated, may cause serious harm to the patient's safety or physical or mental health." Now, I think that is an exceedingly broad definition of a serious medical condition for which somebody could be -- get a recommendation for marijuana for medical uses. Another point worth considering, in considering the impact on the federal regulatory regime or the effectiveness of California in preventing any diversion, is to take a look at two cases we cite in our reply brief. One is the People against Wright. There's somebody who's arrested with 19 ounces, over a pound, of marijuana. They're packaged such that he has one small bag in his pocket, six other small bags wrapped with a scale in his backpack, two other larger bags in that backpack, and then a pound wrapped in a shirt in the back of his truck. And yet the Appellate Court in California said that he was entitled to go to the jury with the theory that that was for medical use. The fact that he had a scale, and the fact that it was packaged the way it was, could be explained to the jury because he had just boughten it, and that he used the scale to make sure he wasn't ripped-off. I think that shows that it's going to be very hard to enforce the regulatory regime. The other case in the reply brief worth mentioning is the Santa Cruz case, because that's a case where a Federal District Court, after Raich came out, said that it could not enforce the DA and the Controlled Substances Act against a 250-person cooperative. And that just shows that this is not something that will be limited to one or two users at a time, but will have a substantial impact on the government's ability to enforce the Controlled Substances Act. Thank you.
03-1454 +++$+++ 4375 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General Clement. The case is submitted.
03-1488 +++$+++ 4380 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument now in No. 03-1488, Ulysses Tory v. Johnnie L. Cochran. Mr. Chemerinsky.
03-1488 +++$+++ 4382 +++$+++ FALSE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Good morning. Mr. Chief Justice, and may it please the Court: The injunction in this case violates the most basic principles of the First Amendment. It's a prior restraint. It's a content-based restriction on speech. It's vastly overbroad. It even restricts the speech of those who are not a party to the lawsuit, such as Petitioner Ruth Craft. The injunction in this case is inconsistent with this country's unique and profound commitment that speech by public officials and public figures be open, robust, and uninhibited. One way in which the injunction is clearly unconstitutional is in restricting the speech of those who are not a party to the lawsuit. For example, Ruth Craft is expressly restrained from ever speaking again about Johnnie Cochran even though she was never named as a party to the lawsuit. And, in fact, Cochran's attorney admitted at the beginning of trial, she wasn't a part of the lawsuit.
03-1488 +++$+++ 4383 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How about you? You're in trouble too, aren't you? (Laughter.)
03-1488 +++$+++ 4384 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I am, Your Honor. This injunction is so broad that if I talk about Johnnie Cochran or this case on the sidewalk in front of this Court or pass out copies of the brief or speak to any reporter, I am violating the terms of the injunction and I could be held in contempt of court.
03-1488 +++$+++ 4385 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Chemerinsky, you speak about the injunction, and the injunction has three parts. I thought that you were not challenging -- at least the question presented doesn't suggest you're challenging -- the first one that concerns distance, the 300 yard from Cochran or his place of business, and the third one, which is an anti-harassment provision. Do I understand correctly that it is only the second one that you're challenging?
03-1488 +++$+++ 4386 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. The question presented is that the injunction is unconstitutional. One of the reasons why the injunction is unconstitutional is that it's based on speech that's protected by the First Amendment. All of the statements that were uttered by Mr. Tory are opinion protected by the First Amendment. There is not the requisite actual malice. And so it's our position that the injunction itself is unconstitutional.
03-1488 +++$+++ 4387 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But your question is preventing all future speech about an admitted public figure, and the first and third provisions of this injunction do not prohibit all future speech.
03-1488 +++$+++ 4388 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, that's correct. It's our position, though, that the injunction is based on speech that's protected by the First Amendment, and we believe that the question presented is that the injunction is impermissible in its restriction of speech.
03-1488 +++$+++ 4389 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that isn't what you've said in the question presented. Why shouldn't we be limited to answering the question presented? And that would leave the other parts there.
03-1488 +++$+++ 4390 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, of course, you're limited to the question presented. Our position, though, is that the injunction in its restriction of speech is unconstitutional. And one of the reasons why the injunction is unconstitutional is that all of the speech that occurred in this case is speech that's protected by the First Amendment.
03-1488 +++$+++ 4391 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but you understand Justice Ginsburg's question surely, and I would imagine that even if you prevail, nothing we would order would affect the first and third parts.
03-1488 +++$+++ 4392 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, certainly we believe that the injunction is most clearly unconstitutional in its overbreadth. We believe also and separately the injunction is unconstitutional because injunctions are not a permissible remedy in a defamation case, especially concerning public officials and public figures. But it's also our position that the injunction is based on speech that's protected by the First Amendment, and thus, the injunction violates the First Amendment.
03-1488 +++$+++ 4393 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but that doesn't --
03-1488 +++$+++ 4394 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Chemerinsky, is it true that your client intends to go on defaming Mr. Cochran?
03-1488 +++$+++ 4395 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. We don't believe our client has ever defamed Mr. Cochran. We believe that all of his speech is just opinion.
03-1488 +++$+++ 4396 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does he intend to continue making the same comments that he made before?
03-1488 +++$+++ 4397 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ His exact words were that perhaps he would continue to express his view that Mr. Cochran owes him money.
03-1488 +++$+++ 4398 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Now, let me ask you this. Under your theory, if -- if the defendant is judgment-proof, does respondent have any remedy at all if the statements are defamatory?
03-1488 +++$+++ 4399 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-1488 +++$+++ 4400 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is it?
03-1488 +++$+++ 4401 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is, of course, a remedy. Since we're dealing here with a public figure, there is the remedy of expressing views which this Court has said in Gertz v. Welch is available to a public figure. There is a damage judgment that's available. Certainly, Your Honor, there can't be a different rule --
03-1488 +++$+++ 4402 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if -- if the defendant is judgment-proof, what good does that do?
03-1488 +++$+++ 4403 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, there is a damage judgment that forever would be available against the person. And it cannot be, Your Honor, that those who are poor will have injunctions --
03-1488 +++$+++ 4404 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well -- well, your -- your answer should be to Justice O'Connor there is no effective legal remedy under your theory of the case.
03-1488 +++$+++ 4405 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, I disagree with that.
03-1488 +++$+++ 4406 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, you -- you say he has the remedy of -- of counter-speech. We're talking -- that's really that doesn't answer the question. The question is, is there anything he can get from the courts other than a damage remedy, and your answer I think is no.
03-1488 +++$+++ 4407 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. From the courts, he can get a damage remedy but I don't accept that a damage remedy is inadequate just because a person may be poor. The damage remedy will be that they'd be collected for the person who gets assets in the future. Also, as I was saying to Justice O'Connor, it can't be --
03-1488 +++$+++ 4408 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it -- it seems to me that that really avoids the problem -- the problem. So suppose we disagree with you about that. Then it's true that there is no -- there is no legal remedy that he can get.
03-1488 +++$+++ 4409 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But then, Justice Kennedy, it can't be the rule that poor people have their speech enjoined, but those with assets can continue to speak in the future.
03-1488 +++$+++ 4410 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it also can't be the rule that poor people can defame ad libitum and -- and people who have money cannot. I mean, that's -- that's not a fair rule either.
03-1488 +++$+++ 4411 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, but that's why there would be, of course, the ability of a court to issue a damage judgment. There are many instances in which damage judgments can't be collected.
03-1488 +++$+++ 4412 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's worthless against a -- against a person who has no assets.
03-1488 +++$+++ 4413 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But that's true everywhere in the legal system, Your Honor. And I would also argue here that none of Mr. Tory's statements were defamatory. I would point --
03-1488 +++$+++ 4414 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now that's another one that is in your brief. You say that these were statements of opinion not fact. But that surely is not presented in your question. You -- you don't -- there were findings made that these statements were defamatory, and your question presented does not seem to me to encompass at all the question whether these statements were defamatory.
03-1488 +++$+++ 4415 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would disagree, Your Honor. The question presented is whether this injunction, that forever stops speech, violates the First Amendment. One reason why --
03-1488 +++$+++ 4416 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not -- not this injunction. The question presented is whether a permanent injunction as a remedy in a defamation -- in a defamation action, preventing all future speech about an admitted public figure, violates the First Amendment. There's no suggestion in that that you claim that in this particular case there was no defamation. I -- I just don't think it's fairly included within the question.
03-1488 +++$+++ 4417 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, what I am saying is that the question presented does ask whether this injunction, which permanently restricts speech --
03-1488 +++$+++ 4418 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, it doesn't. It says whether a permanent injunction as a remedy in a defamation action preventing all future speech about an admitted public figure violates the First Amendment.
03-1488 +++$+++ 4419 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would argue --
03-1488 +++$+++ 4420 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There's nothing about this particular injunction which is based upon speech that is not defamation. There's nothing in there about that.
03-1488 +++$+++ 4421 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, our position is that question asks whether an injunction violates the First Amendment, and certainly it is about this case. And our position is that all of the speech that was expressed in this case is opinion. And it's important --
03-1488 +++$+++ 4422 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Now, if that's so --
03-1488 +++$+++ 4423 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well -- well, there really -- there are findings against you, and to say that a lawyer is a crook, a liar, and a thief and you're trying to tell us that that's not defamatory, I mean, I -- I think we should just proceed on -- on some other basis for this argument. We have other questions to discuss.
03-1488 +++$+++ 4424 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure. But, Your Honor, I want to just respond to that. The exact statement there was -- and I'll quote it for you and it is on page 54 of the joint appendix. Johnnie is a crook, a liar, and a thief. Can a lawyer go to heaven? Luke 11:46. Your Honor, this Court has said, for example, in Greenbelt Cooperative that charging somebody with blackmail is expressing opinion. In Letter Carriers v. Austin this Court said calling somebody a traitor is opinion.
03-1488 +++$+++ 4425 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. That -- that -- what you've quoted many -- much of this I wouldn't repeat in polite company. You've reported one of the most mild, and in fact there are two findings. One, this is not just defamation. It was an action for defamation, as well as a tort of invasion of privacy. And there is a finding, first, that this was done intentionally to create a negatively charged and ominous environment, and this is not a matter of speech-related issues. It is simply the use of false and defamatory and privacy-invading communications, or worse, or attempt to improperly coerce payment of money in tribute for -- for desisting from that type of activity. All right. Now, those are the findings against you. So suppose I agreed with you hypothetically that that, with all these findings, is nonetheless protected by the First Amendment. All right? Now, suppose, in other words, you convince me of that. Now, I want to know how to write my opinion on that assumption to protect what I was worried about yesterday, that a woman who has a boyfriend or a husband is being continuously harassed in -- with methods similar to this one. See, it's easy to transpose those two cases which are both on my mind. And I want to know if in your opinion that these restraining orders, which try to prevent this kind of thing, among others, are unconstitutional, if there's a way of distinguishing them, if you could possibly win on what theory. And what I'm trying to get you to do is to say is it absolute. Are there limits? If so, what?
03-1488 +++$+++ 4426 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would suggest three different ways in which you could write the opinion that distinguished the case. The first is that this injunction is vastly overbroad, that even if there can be an injunction to say that Ulysses Tory and Ruth Craft can never again say anything about Johnnie Cochran in any public forum, that I can never speak about Johnnie Cochran would violate the First Amendment. A second way of distinguishing is that defamation is different, that when the First Amendment was adopted, the clear history was that above all it was to prevent prior restraints, and that injunctions were not permitted in defamation actions. That's quite different than a harassment action. And third, as I've argued, what makes this different is the basis for this injunction is speech protected by the First Amendment. With regard to the findings that you referred to, you mentioned two. The first is invasion of privacy. Your Honor, the only privacy claim in this case was false light invasion of privacy. California law is clear. When there is a defamation action and a false light claim, the false light claim is automatically dismissed as duplicative when it's based on the same fact. The second basis you pointed --
03-1488 +++$+++ 4427 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Chemerinsky, this case comes up to us from a California appellate court. Surely they know California law better than we do.
03-1488 +++$+++ 4428 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, but they did not base their decision on the privacy claim because California law is clear that when it's false light invasion of privacy brought together with a defamation action, the false light claim is dismissed. That's a California case, Couch v. San Jose Unified School District.
03-1488 +++$+++ 4429 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, we're not going to debate among ourselves over what California law is.
03-1488 +++$+++ 4430 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. All I'm saying is it's important to be clear about what the privacy claim is. As I was saying to Justice Breyer, there may be privacy claims that give rise to injunctions. Harassment claims may give rise to injunctions, but not the privacy claim in this case which was just about false light, which even the California Court of Appeal admitted is treated together with defamation.
03-1488 +++$+++ 4431 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose this picketing had taken place in front of his house, every day in front of his house.
03-1488 +++$+++ 4432 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, under Frisby v. Schultz, that would be a different situation. Under Frisby v. Schultz, this Court said --
03-1488 +++$+++ 4433 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Well -- well, then this -- this argument you're making, oh, never, never, the sky is falling and so forth, I -- I think we have to be more precise here. I think if it were in front of his house, it would be different. If he had alleged $10 worth of monetary damages, it would be disparaging the quality of his services, which would be a trade libel, and the Restatement at least -- I don't know California law -- says that you -- would you agree that you can enjoin a trade libel --
03-1488 +++$+++ 4434 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor --
03-1488 +++$+++ 4435 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that disparages quality of goods to the serious injury of a -- of a business?
03-1488 +++$+++ 4436 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Actually, Your Honor, the vast majority of cases have held that you cannot have an injunction for product defamation. And so I think while that's a different and more difficult question, most courts have said no even there. And Your Honor, I'm not saying there can never be injunctions. But I am saying that this Court has said there's a very strong and heavy presumption against injunctions, and that never, not once in the 214-year history of the First Amendment, has this Court ever upheld an injunction as a remedy in a defamation action. And, Your Honor --
03-1488 +++$+++ 4437 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if -- if this under -- the underlying claim seems to be that Mr. Cochran is essentially being blackmailed; that is, this -- this -- your client wants tribute to go away. And you say, yes, but it's defamation. It's a defamation action. Therefore, damages is the only remedy. Is there nothing that one can do to stop another from engaging in blackmail?
03-1488 +++$+++ 4438 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, there is. If this was blackmail or extortion, Johnnie Cochran could have filed a criminal complaint with the police. He could have civilly sued for blackmail or extortion. But, Your Honor, this wasn't extortion.
03-1488 +++$+++ 4439 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What kind of a jurisprudence is it that a person can go to jail but that he's freed from an injunction? I mean, why -- why do we do this?
03-1488 +++$+++ 4440 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But Your Honor, that's because this Court has said that injunctions of speech are even worse than criminal penalties. I would refer this Court --
03-1488 +++$+++ 4441 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- but why -- is that true in every case? I mean, take the timid person who's not sure -- I know the law doesn't protect the timid person in the first area, but let's -- let's assume the timid person is not sure. So he wants -- he wants to get an equitable ruling first, declaratory judgment. He -- and he would take an injunction. That's certainly much easier than going to jail.
03-1488 +++$+++ 4442 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Your Honor, I'd remind you of this Court's language in the Vance v. Universal Amusement where the Court said presumption against prior restraints is heavier and the degree of protection broader than against limits on criminal penalties.
03-1488 +++$+++ 4443 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know, but I'm asking you why that -- why that should be. If -- if you asked a person not familiar with our jurisprudence, which is worse, having an injunction that you can argue about or going to jail, I -- I think they would say that going to jail is worse.
03-1488 +++$+++ 4444 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Your Honor, in terms of the First Amendment, there are reasons why an injunction has always been regarded as worse.
03-1488 +++$+++ 4445 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Always? Do you want to apply that to an harassment action too against a woman who has the restraining order? No restraining orders in divorce cases in case they're against speech because even if violence is threatened, even if -- et cetera. I mean, how -- how far do you want to push that principle?
03-1488 +++$+++ 4446 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I don't want to push the principle at all to harassment. I believe that injunctions are completely appropriate in harassment actions. I think it is quite important to note that the California harassment statute expressly excludes speech which is protected by the First Amendment as being a basis for harassment. The history of the First Amendment is different. To go back to Justice Kennedy's question, it's always been thought that an injunction strikes at the very heart of the First Amendment because, as Justice Scalia pointed out --
03-1488 +++$+++ 4447 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why can't we say that speech that is -- is being used for extortion is different, just as speech which is being used for harassment is different? And just as you can get an injunction for the latter, you ought to be able to get an injunction for the former. Not all speech, but only when speech is being used to -- to extort money.
03-1488 +++$+++ 4448 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, there can be an injunction for extortion, but this was not extortion. There was never the criminal complaint. There was never the civil action. And it didn't meet the requirements for extortion. Your Honor, California law, Penal Code section 518, defines extortion as, quote, the obtaining of property from another with his consent induced by a wrongful use of force or fear. There wasn't the wrongful use of force or fear. Now, it may be that Ulysses Tory was speaking --
03-1488 +++$+++ 4449 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Here I think there was -- why isn't there a use of fear when, you know, you're afraid of this person destroying your business by calling you a liar and a cheat? Wasn't Mr. Cochran afraid of that -- of that happening?
03-1488 +++$+++ 4450 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, this Court is required to do an independent review of the record under Bose v. Consumers Union. There's no indication that Mr. Cochran suffered that fear from Mr. Tory being outside. It's true that Mr. Tory may have believed that he was owed money by Johnnie Cochran and was also trying to encourage Mr. Cochran to pay. But this Court has said in cases like NAACP v. Claiborne Hardware speech does not lose its protective character simply because it may embarrass others or coerce them into action.
03-1488 +++$+++ 4451 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Chemerinsky, the district -- I mean, the trial court made certain findings and I'm looking at page 42 of the joint appendix. The first is that these statements were actually made for the purpose of inducing Cochran to pay Tory amounts of money which Tory was not entitled. That's one finding. And then finding 24, despite repeated requests, Tory has refused to cease picketing unless he was paid money -- a monetary settlement by Cochran. And then 27 that says this is simply use of false and privacy-invading communications to coerce or attempt to improperly coerce payment of money in tribute for desisting from that type of activity. And those sound like findings. It's true that the label of extortion has been put on it, but it certainly does sound like the -- that the purpose of the speech was to extract money not owed.
03-1488 +++$+++ 4452 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Your Honor, since this is a defamation action, not an extortion action, the rules under the First Amendment for defamation have to apply. Under the rules of the First Amendment for defamation, injunctions are not available to public officials or public figures.
03-1488 +++$+++ 4453 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, so this finding -- the court shouldn't have made these findings? It was irrelevant?
03-1488 +++$+++ 4454 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I believe that the --
03-1488 +++$+++ 4455 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was there an objection to the testimony that established this?
03-1488 +++$+++ 4456 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. Mr. Tory, who was appearing pro se in the trial court, from the very outset objected that he was being held liable for speech protected by the First Amendment.
03-1488 +++$+++ 4457 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but it seems to me -- and I think what bothers me is -- is what bothers Justice Kennedy. It seems to me that the argument you just made is an argument that given the pleadings in this case, the findings that Justice Ginsburg just quoted really were irrelevant findings, that they should not have gotten -- that the court should not have gotten into extortion and so on and should not have provided a remedy for extortion, quite apart from the fact of whether it's an appropriate remedy, constitutional or otherwise. And that, it seems to me, is -- is something that we -- we are not here to touch. That's a question of California law. What we are here to touch is, number one, whether the injunction is overbroad with respect to pure speech, and maybe we are here -- that we have a question about the -- the breadth of the case we took. But maybe we are here to determine whether there can be an injunction against blackmail or harassing activities. But I -- I think we're not here to decide whether California could have gotten to the question of blackmail, harassment, and injunction for that. Do you agree with that?
03-1488 +++$+++ 4458 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. I certainly agree with the first point. One issue before this Court is whether this injunction is overbroad, and it clearly is in terms of the breadth of speech that's regulated and whose regulated. But as to the second point that you make, this is a defamation action, and thus the issue before this Court, clearly presented in the question presented, is whether a permanent injunction can be issued in a defamation case remedy when the plaintiff is a public figure.
03-1488 +++$+++ 4459 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it can certainly -- the -- the issue is certainly before us as to whether such an injunction can be issued with respect to defamation pure and simple. But the findings that Justice Ginsburg has -- has read and part of the order in question here seems to go beyond pure defamation. It goes to the kind of demonstrative activity which plausibly is found to have been in aid of extortion. And that, it seems to me, is an entirely different question. We may -- I'm not saying we will, but we may agree with you that it's overbroad. We may agree with you that as to pure speech, you can't enjoin it. But that doesn't necessarily mean that every part of this injunction is wrong, and it seems to me it is irrelevant as to whether the -- the State of -- the courts of California should have reached extortion.
03-1488 +++$+++ 4460 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would disagree in this way, Your Honor. Bose v. Consumers Union makes clear that when it is a defamation action, this Court and every appellate court has to do an independent review of the record.
03-1488 +++$+++ 4461 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ With respect to the defamation, pure and simple. I agree with you. We -- there is a heightened standard of review, but I don't think that addresses one way or the other what the standard should be when an action in the State courts has been treated as an action both for defamation and for extortion or harassment.
03-1488 +++$+++ 4462 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Your Honor, it was not treated here as an action for extortion or harassment --
03-1488 +++$+++ 4463 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I understand. Mr. Chemerinsky, let me put the question this way. Suppose a State does not have a civil action for extortion. It provides criminal remedies but no civil action for extortion. Why does the Constitution not permit us to treat, in that State at least, a civil action for defamation which has within it elements of distortion differently from pure defamation?
03-1488 +++$+++ 4464 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I would say the history of the First Amendment is different. A State can create a civil action then for extortion at the urging of this Court, but if you open the door to injunctions in defamation cases, then there's the possibility that in any defamation case, somebody might plead something about extortion, and injunctions will not be rare but will be the norm.
03-1488 +++$+++ 4465 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask this -- may I ask this question? Supposing the only thing he did was to carry a sign that said Johnnie is a crook, a liar, and a thief, and the trial judge finds that is false, and he's carrying it in a sign, could the trial judge enjoin him from carrying that sign in front of Johnnie Cochran's office?
03-1488 +++$+++ 4466 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, because the law is clear that injunctions are not a permissible remedy in defamation cases.
03-1488 +++$+++ 4467 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's the best authority you have for that proposition?
03-1488 +++$+++ 4468 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Near v. Minnesota would be the best authority where this Court said clearly that injunctive relief should not be awarded in a defamation case.
03-1488 +++$+++ 4469 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Add to Justice Stevens' -- add to Justice Stevens' hypothetical that he shows that he's losing some clients.
03-1488 +++$+++ 4470 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Your Honor, even -- yes, Your Honor. But I don't think that changes the hypothetical in terms of enjoining the defamatory speech.
03-1488 +++$+++ 4471 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you add too that he's judgment-proof?
03-1488 +++$+++ 4472 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, again, as I said to Justice O'Connor, I don't think it can matter whether he's judgment-proof because we can't have a different rule that we allow poor people's speech to enjoin and not wealthy people.
03-1488 +++$+++ 4473 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're saying -- you're saying that a State cannot constitutionally prohibit someone from making false statements in front of the business that causes the business to lose money.
03-1488 +++$+++ 4474 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, there are other causes of action that may allow that. If it could be --
03-1488 +++$+++ 4475 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So I'm -- my question is, is this constitutional to prohibit this conduct?
03-1488 +++$+++ 4476 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not in a defamation action, Your Honor.
03-1488 +++$+++ 4477 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's --
03-1488 +++$+++ 4478 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I --
03-1488 +++$+++ 4479 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that's not the question.
03-1488 +++$+++ 4480 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what is your authority for that proposition?
03-1488 +++$+++ 4481 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would say that the authority comes from the fact that never in 214 years has this Court ever upheld an injunction in a defamation case.
03-1488 +++$+++ 4482 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Have we ever set aside an injunction that did that?
03-1488 +++$+++ 4483 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, not under those facts.
03-1488 +++$+++ 4484 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Have we done it either way?
03-1488 +++$+++ 4485 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. That's correct, Your Honor.
03-1488 +++$+++ 4486 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Have we ever -- have we ever considered a case where there's a strong element of extortion involved?
03-1488 +++$+++ 4487 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would say yes, extortion for Austin v. Keith. There was speech to pressure, and yet this Court said even though the speech was to pressure, it's still protected by the First Amendment. I'd like to save the rest of the time for rebuttal, if that's permissible.
03-1488 +++$+++ 4488 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Very well, Mr. Chemerinsky.
03-1488 +++$+++ 4489 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
03-1488 +++$+++ 4490 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Cole, we'll hear from you.
03-1488 +++$+++ 4492 +++$+++ FALSE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice Rehnquist, and may it please the Court: For years, Mr. Tory has relentlessly targeted Johnnie Cochran with a pattern of defamatory speech in a public forum for purpose of causing Mr. Cochran to pay Mr. Tory money in tribute for ceasing from this unprotected activity. He admitted at trial he intended to engage in this conduct. He was doing it just so he could be paid money, and when asked if he would continue to do so, he stated he would.
03-1488 +++$+++ 4493 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, do you -- do you defend the injunction in its entirety?
03-1488 +++$+++ 4494 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes --
03-1488 +++$+++ 4495 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In other words, the -- the -- Mr. Chemerinsky didn't have too much chance to -- to get very far into it, but one of his points was that there was -- quite apart from any injunction against picketing, harassment, et cetera, there was an injunction simply against speech on a given subject directed to a lot of people with no limit of time. With respect to that last aspect, do you defend the injunction?
03-1488 +++$+++ 4496 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. First of all, I don't believe it was directed to a lot of people. As this --
03-1488 +++$+++ 4497 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it was directed, number one, to a named person who was not a party to the case, and it was directed to agents and employees of -- of the named party. So, I -- I assume that Mr. Cochran probably has a fair number of agents and employees, so it does seem like a large number of people.
03-1488 +++$+++ 4498 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe this Court said in Madsen that that would raise an abstract controversy that Mr. Tory doesn't have standing to attack the injunction for other persons who are not before the court. No aider or abetter has ever been served with this injunction. Ms. Craft has never been served with this injunction. Only Mr. Tory. So I don't believe --
03-1488 +++$+++ 4499 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let me ask you a law school question. In -- given the injunction on its face, with that breadth, is that injunction defensible with respect not to picketing, not to harassment, simply to speech in a public place?
03-1488 +++$+++ 4500 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I defend the injunction, and respondent defends the injunction on the ground that it is conduct that was being enjoined --
03-1488 +++$+++ 4501 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I asked you --
03-1488 +++$+++ 4502 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- from the use of unprotected speech.
03-1488 +++$+++ 4503 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- to exclude the -- the issue of conduct. I said forget the injunction for a moment with respect to picketing, with respect to harassment, and we'll say with respect to blackmail, since that has come up. Forget that. Simply take the portion of the injunction that enjoins speech by these people, associates, agents, et cetera. On the subject matter of the injunction for all time, do you defend that injunction?
03-1488 +++$+++ 4504 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, we defend the injunction.
03-1488 +++$+++ 4505 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's take specifically the words of the injunction. It's against orally uttering statements about Cochran, just orally uttering statements about Cochran.
03-1488 +++$+++ 4506 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1488 +++$+++ 4507 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You say that someone can be enjoined --
03-1488 +++$+++ 4508 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Based upon the unique facts of this case, Justice Ginsburg, I say somebody can be enjoined. I don't say that in the abstract.
03-1488 +++$+++ 4509 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you can't square that with the Near case at all. I -- I mean, the -- the injunction on its face in part 2 has the appearance of being overly broad.
03-1488 +++$+++ 4510 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But in Near, they set forth certain factors, and those factors included that it was not a private redress of private wrongs. The information was of legitimate public concern. Neither of those elements are present in this action.
03-1488 +++$+++ 4511 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You don't know that.
03-1488 +++$+++ 4512 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't --
03-1488 +++$+++ 4513 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You don't know what future speech is going to be. His future thing may be, you know, Johnnie Cochran shouldn't be elected mayor of San Francisco. That would be a -- a question of public concern.
03-1488 +++$+++ 4514 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Justice Scalia, what I'm relying on is the fact that he has engaged in 3 years in a pattern of continuing, repetitive conduct.
03-1488 +++$+++ 4515 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what -- what you're saying is that an -- an injunction can be overbroad based on past wrongful conduct. And there is simply no authority for that proposition.
03-1488 +++$+++ 4516 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not suggesting that this injunction is necessarily overboard based upon that proposition because I believe there are --
03-1488 +++$+++ 4517 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But we have just pointed out that it -- that it -- it prohibits lawful, harmless, truthful speech.
03-1488 +++$+++ 4518 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I disagree with that, Justice Kennedy.
03-1488 +++$+++ 4519 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it does on its face. I mean, it is clearly overbroad. Now, what should we do about that?
03-1488 +++$+++ 4520 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if you're asking me, based upon the breadth of the injunction, what I -- if -- if there was -- are you asking me what I would do to modify the injunction? You could merely strike -- you could leave intact paragraph 2 and you could strike simply subsections (ii) and (iii) as being unconstitutionally overbroad.
03-1488 +++$+++ 4521 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, let -- let me ask you about that. Let's -- let's assume, for the moment, that a majority of the Court would find that some of these provisions are overly broad. Is there any authority that tells us what to do next? This is not like a statute where we have to save the statute. Do we have any obligation to save the injunction? Send it back and let it be done. Let it be done all over again. I mean, why -- why should we rewrite it up here? Do you have any authority that requires us or permits us to do that?
03-1488 +++$+++ 4522 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. In -- in Madsen, Justice Kennedy, you struck -- the Court struck certain provisions as being unconstitutionally overbroad and left certain intact. So there's no reason why you can't look at this injunction, which clearly does not attack paragraph 1. The -- they do not attack paragraph 1. They do not attack paragraph 3. They only level their attack at paragraph 2, and paragraph 2, by striking subsections (ii) and (iii), would then be limited to the exact conduct in issue, which is picketing.
03-1488 +++$+++ 4523 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So -- so if -- before leaving that point, what the injunction prohibits is that Tory and those acting in concert, cooperation, or participation with him from, in a public forum, orally uttering statements about Cochran. All right. That's what it says. Now, do you think that if Tory or someone acting in cooperation with him says, I've had a change of heart, Johnnie Cochran is a marvelous person, and he says that on television -- do you think that individual at that time has violated this injunction?
03-1488 +++$+++ 4524 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely not.
03-1488 +++$+++ 4525 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Absolutely not. Because? Because?
03-1488 +++$+++ 4526 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ First of all, that's --
03-1488 +++$+++ 4527 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It said the words. They violated the words. It was a statement, but he has not violated the injunction because?
03-1488 +++$+++ 4528 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because I don't believe that's a public forum.
03-1488 +++$+++ 4529 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, no, no. He does it in a public forum. In fact, he hires Disney Hall. (Laughter.)
03-1488 +++$+++ 4530 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And moreover, he gets on stage and announces it. Okay? There's no problem about a public forum. So, now, why doesn't it violate the injunction?
03-1488 +++$+++ 4531 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your -- Your Honor, I believe there are alternative channels of communication here.
03-1488 +++$+++ 4532 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. I thought what you were going to say -- but you're not. So I'm very interested in that, and I'm glad I asked. I thought you were going to say when it says uttering statements, it means statements of the kind or identical to those we have identified earlier in this opinion.
03-1488 +++$+++ 4533 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I was --
03-1488 +++$+++ 4534 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, now, you haven't said that. I said it, and I think it's too late for you to say it. (Laughter.)
03-1488 +++$+++ 4535 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think I said it when I said there was a continuing pattern of repetitive conduct under Pittsburgh Press, over 3 years that that was the conduct that he has engaged in. And that was clearly the purpose of this injunction, Justice Breyer. We know that. And the purpose of the injunction is to enjoin conduct that's designed to extort money from Mr. Cochran.
03-1488 +++$+++ 4536 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In more than one case, we've said that an injunction has to be precise and clear and not leaving things to the imagination.
03-1488 +++$+++ 4537 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think this is precise and clear. Based upon the breadth of the injunction, it's very clear. Based upon this man's prior repetitive conduct of defaming Mr. Cochran with unprotected speech for the purpose of attempting to extort money from him --
03-1488 +++$+++ 4538 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it's -- it's --
03-1488 +++$+++ 4539 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But nothing in the injunction refers to prior conduct.
03-1488 +++$+++ 4540 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's right. It's --
03-1488 +++$+++ 4541 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The injunction just speaks for itself. It doesn't say what -- doing what you used to do or anything like that.
03-1488 +++$+++ 4542 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The injunction --
03-1488 +++$+++ 4543 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You cannot picket Cochran or Cochran's law firm. Period.
03-1488 +++$+++ 4544 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If we restricted the injunction to specific words used such as you cannot picket Johnnie Cochran's law firm and say he's a crook, liar, and thief, the response will be that he'll come up with five new words to defame Mr. Cochran for purposes of extorting --
03-1488 +++$+++ 4545 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, maybe there are different grades of specificity. Maybe it doesn't meet precisely the same words, but I think there are other ways to draft it that say no picketing. Period.
03-1488 +++$+++ 4546 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there could be no picketing for purposes of -- no -- which contains defamatory speech for purposes of extorting Mr. Cochran. But --
03-1488 +++$+++ 4547 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All I'm suggesting is just draft it -- just excising (ii) and (iii) from paragraph 2 would not necessarily solve the problem completely. Because subparagraph (i) says picketing Cochran or Cochran's law firm, which is a pretty broad prohibition.
03-1488 +++$+++ 4548 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I would disagree based upon the prior -- continuing course of -- of repetitive conduct and the fact that this -- over a period 3 years, once a week, this man spent 3 to 4 hours a day of his time defaming Mr. Cochran at his law office. When we enjoined him from doing so at his law office, he moved it to the Los Angeles Superior Court. And I think the fact that Mr. Cochran is a public figure actually favors the breadth of this injunction. If this was not a public figure, then the public forum issue would not be as effective. But because Mr. Cochran is a public figure, the only way he gets protection is in the public forum because this gentleman could move his picketing down to west L.A., Santa Monica Boulevard, nowhere near a courthouse, and to a public figure he can inflict the same damage to reputation. And that is the problem we were contending with in attempting to draft an injunction that was not overbroad and yet could control Mr. Tory --
03-1488 +++$+++ 4549 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You -- you did draft this injunction. It wasn't the -- an inspiration from the judge unaided by your advocacy. Is that so?
03-1488 +++$+++ 4550 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It --
03-1488 +++$+++ 4551 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This -- the terms of this injunction.
03-1488 +++$+++ 4552 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Were aided -- were aided by my advocacy, Your Honor.
03-1488 +++$+++ 4553 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Aided and abetted.
03-1488 +++$+++ 4554 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well said, Justice Rehnquist. What I'm suggesting here is Mr. Cochran would have been faced with -- he has no remedy. Injunctive relief is the only remedy. And he would be faced with a multiplicity of actions --
03-1488 +++$+++ 4555 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why? Why couldn't he just be enjoined from -- from similar defamation? I mean, this -- this enjoins him from -- from true speech. At least he could -- he could have been enjoined from in the future defaming Cochran in the same manner. And if he did that, then -- then he could be punished.
03-1488 +++$+++ 4556 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think we would be -- that injunction then would be attacked on being vague or ambiguous, that Mr. Tory wouldn't have sufficient notice as to what he was allowed to say and not allowed to say. I guarantee you that was --
03-1488 +++$+++ 4557 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if -- if that's so, then maybe Mr. Chemerinsky is right. We -- we shouldn't have injunctions. If you're saying that injunctions can't be narrowly tailored, it seems to me that you're playing right into the argument that the petitioner is making.
03-1488 +++$+++ 4558 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I think they can be tailored. I just don't think they can be that narrowly tailored. And I don't think in this case, which I believe that the test we should be applying if we're going to balance, is this -- there's no need for this injunction to be drafted in the least restrictive means. I also continue to advance the argument that this -- the facts of this case are unique. It's the use of speech to engage in unprotected conduct. This -- this conduct is not protected by the First Amendment. The conduct of attempting to extort money from Mr. Cochran is not protected. If that is not protected, then I believe we can craft --
03-1488 +++$+++ 4559 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You can -- you can certainly have, you know, some unprotected speech in connection with extortion, like give me $5 million or I'll shoot you. But that -- this was a far cry from that. In other words, it isn't just addressing the victim and saying give me something. It's denouncing the victim, which gets into free speech here.
03-1488 +++$+++ 4560 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It certainly does, Justice Rehnquist. But what I am suggesting is there was no remedy for Mr. Cochran that would have avoided a multiplicity of actions other than to draft the injunction in a form that would preclude Mr. Tory from engaging in the same conduct without regard to whether it was -- and to let him know clearly -- give him a safe harbor as to what he could and could not say.
03-1488 +++$+++ 4561 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the injunction isn't limited to the same conduct.
03-1488 +++$+++ 4562 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I don't think it needs to be because of the pattern and practice that this man has engaged in over 3 years. And if we take the example, which is so he has a change of heart and suddenly he now wants to praise Mr. Cochran and that's become his -- and he's going to promote him as mayor of San Francisco, he can certainly go into the court and modify the injunction.
03-1488 +++$+++ 4563 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought he lived in L.A. (Laughter.)
03-1488 +++$+++ 4564 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I think he'd like to get him up to San Francisco. (Laughter.)
03-1488 +++$+++ 4565 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He can certainly seek to modify the injunction, and that, as I pointed out in a subsequent letter brief, there's -- California doesn't adopt the collateral bar rule. And therefore, he has a check and balance in this case. Under People v. Gonzales, 12 Cal.4th 805, the collateral bar rule has no application in the State of California. So in the unlikely event that Mr. Tory was engaged in speech praising Mr. Cochran, one, and two, in the -- in the more unlikely event that someone was going to attempt to cite him for contempt for engaging in protected speech, he could contest, under First Amendment grounds, the enforcement of this injunction in the State of California because the collateral bar rule has no impact.
03-1488 +++$+++ 4566 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I'm -- I'm baffled by that. What you're saying is that the injunction -- we're just all wasting our time? The injunction doesn't mean anything?
03-1488 +++$+++ 4567 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no, no, no. Justice Kennedy, all I'm saying is --
03-1488 +++$+++ 4568 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I fell off the track here.
03-1488 +++$+++ 4569 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All I'm -- all I'm saying is that if the collateral bar rule was in effect, you would waive your right to contest. You don't have a right to contest the constitutionality of the injunction on First Amendment grounds or constitutional grounds when it's seek to be enforced against you. That's not a defense in a contempt proceeding. California does not adopt that rule. Therefore, Mr. Tory can always -- if he is engaged in protected speech, he can easily contend --
03-1488 +++$+++ 4570 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, yes, but he's different from other citizens because he's at -- he's at risk of a contempt citation.
03-1488 +++$+++ 4571 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't dispute that.
03-1488 +++$+++ 4572 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, his speech is being chilled with -- with respect to protected speech.
03-1488 +++$+++ 4573 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But there's nothing unusual --
03-1488 +++$+++ 4574 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So the collateral bar rule doesn't help you at all because he's subject to a contempt citation.
03-1488 +++$+++ 4575 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He's subject to it, but there's a check and balance there in terms of when you balance, the potential remedy for Mr. Cochran -- what -- what is going to give Mr. Cochran the remedy he needs? And if we balance that against the -- the breadth of this injunction, I think we have to look at -- one of the biggest concerns about prior restraints, when analyzed in terms of injunctions, is the collateral bar rule.
03-1488 +++$+++ 4576 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it would be so easy. I mean, it's virtually no burden. I take it what you're saying is that this injunction in paragraph 2 at its heart is aimed at in public forums, keeping insults suggesting he was a crook against Johnnie Cochran unless you pay me $10,000. Then I'll stop. Okay? Now, at its heart, that's what it's aimed at.
03-1488 +++$+++ 4577 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's exactly --
03-1488 +++$+++ 4578 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you are saying if in fact it's ever enforced outside that heartland, you can have a defense. It would violate the First Amendment. But since it's so easy just to write those words we just said right in paragraph 2, why shouldn't the judge have to do it? It's so easy. Say this is aimed at the heartland just as I said it and you said it, and it doesn't apply outside of it.
03-1488 +++$+++ 4579 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I have no dispute with that, Justice Breyer. I agree that was the whole purpose for the injunction. That's the basis of the injunction. And you could always remand for further proceedings, consistent with any opinion you would write, that the injunction has to be tailored to -- to deal with defamatory conduct, which is designed to extort or with the intent to extort. And I --
03-1488 +++$+++ 4580 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's what he's arguing. You're -- you're conceding that it's overbroad.
03-1488 +++$+++ 4581 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm saying if this Court -- well, I'm gleaning the impression that this Court thinks it's overbroad.
03-1488 +++$+++ 4582 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Ah, you're very perceptive. (Laughter.)
03-1488 +++$+++ 4583 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And having gleaned that perception, I'm trying to suggest that, number one, there was no attack on paragraphs 1 and 3, and now we're focused on paragraph 2. And paragraph 2 can be tailored, as you have indicated, Justice Scalia, I think consistent with First Amendment issues. And I think it's important to point out that if we take away injunctive relief in a defamation action in this day -- modern age --
03-1488 +++$+++ 4584 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're sort of saying the opposite of what your opponent said. If we take it away, has it ever been there?
03-1488 +++$+++ 4585 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's never been there.
03-1488 +++$+++ 4586 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What are we taking away?
03-1488 +++$+++ 4587 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I agree it's never -- you've never found it there and you've never said it can't be there.
03-1488 +++$+++ 4588 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How does California work in that respect? Because what I've been thinking of in my mind is that maybe we shouldn't decide this in terms of State law boxes, that California seems to have an action. Let's call it a buzz action to get away from words. And what that action is it's a defamation but a certain kind. It's defamation accompanied by extortion. And when you have defamation accompanied by extortion -- call it whatever you want -- an injunction is proper in these circumstances. Now, can we decide it in such a way that we're not talking about all defamation actions? We are talking about this beast in California which uses the word defamation but also finds injunction and therefore issues -- also finds extortion and therefore issues an injunction.
03-1488 +++$+++ 4589 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I think that you could limit the injunction to defamatory speech of a similar nature designed to extort.
03-1488 +++$+++ 4590 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would -- would that make Mr. Cochran happy? What -- what's the big deal about extortion? I mean, suppose this same conduct occurs in the future, but he doesn't say I'll stop if you give me a lot of money. He just pickets every day and says Cochran is a shyster, don't do any business with Cochran. Do you think Mr. Cochran would be any -- any happier simply because the guy says I'll -- hasn't said I'll stop if you pay me $10,000?
03-1488 +++$+++ 4591 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, and I think that would be subject to the same injunctive relief. I think this case is unique with the extortion element, but I don't disagree, Justice Scalia, that that is why any decision that says injunctions in defamation actions would be improper. I think people would start defaming with impunity.
03-1488 +++$+++ 4592 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You've got to give us some line. I mean, the only reason we're grabbing onto extortion is that -- that there's reluctance to say you can issue injunctions in all defamation actions. Now, what -- what limitation do you want to place upon the ability to issue an injunction if it is not defamation combined with extortion?
03-1488 +++$+++ 4593 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think you need to place a limitation other than you can enjoin the defamatory conduct. Take, for example, the Internet. A posting goes on of a -- of a business that -- a startup company. It can't -- damages of -- for a startup company -- they're very difficult to prove.
03-1488 +++$+++ 4594 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But then you run into the public figure. I mean, that's a much more dangerous kind of rule of law, isn't it? I mean, a pure defamation action against a public figure, which they want to say this is. You can write all kinds of things about public figures. People can and do, for better or for worse. Do -- is there any authority for issuing in a pure defamation action an injunction?
03-1488 +++$+++ 4595 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's no authority, but there's no authority that says you can't do it. But what I am suggesting is in -- is in a pure defamation action that's not tied to any specific wrongful conduct, there's no reason why you couldn't enjoin. For example, if you found that a specific item was defamatory on its face, such as a posting on the Internet, the only way to get that posting off the Internet would be to enjoin it because damages aren't going to solve the problem. And if it's -- even if it's purely defamatory, you could restrict it to that purely defamatory posting, similar to -- to the obscenity cases where you've reviewed a film, you found it to be obscene, and then you preclude it. There are procedural safeguards and you preclude it in the future.
03-1488 +++$+++ 4596 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you've just said something that I think that's inconsistent with your earlier presentation. You said you could enjoin that posting. Here you said it wouldn't be effective just to enjoin the particular placards that were used, the particular words because then there would be other words. So the same question could come up with an Internet posting if you had an injunction not simply on what was posted but anything about this particular individual that might be posted in the future.
03-1488 +++$+++ 4597 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Ginsburg, I think where that leaves us is you'd have to engage in some sort of balancing about the -- how narrowly tailored the injunction is and does it provide a sufficient remedy and, you know -- and -- and in this -- and what test we would analyze it under, strict scrutiny, intermediate scrutiny, or the Ward test. And -- and I think that in applying those tests, you'd have to come to a balance, and if the balance is that you're going to limit it to a specific type of speech or -- then that -- that would be a -- a reasonable limit, and if it creates a multiplicity of actions, well, so be it. But at least there's a remedy for that posting or postings of a similar nature. So --
03-1488 +++$+++ 4598 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, you -- you -- to the extent that you're complaining about extortion-like conduct, something else that you drafted -- I'm looking at the complaint on page 7 of the joint appendix. You have identified all defamatory, including with the false light invasion of privacy, but you don't have any claim that looks like blackmail.
03-1488 +++$+++ 4599 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you'd -- if I could direct you, Justice Ginsburg, to page 12 of the joint appendix at paragraphs (j) and (k) of the verified complaint, you will see that we alleged in a verified complaint that he'd engaged in three previous efforts of this same type of conduct, one. And two, paragraph (k), that Tory is in the business of professionally extorting monies from innocent persons and business --
03-1488 +++$+++ 4600 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I was going to ask you about that. Were there findings to substantiate the allegations?
03-1488 +++$+++ 4601 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Findings to substantiate --
03-1488 +++$+++ 4602 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Specifically about the extorting money from the bank and the oil company.
03-1488 +++$+++ 4603 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Kennedy, there were not.
03-1488 +++$+++ 4604 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No findings.
03-1488 +++$+++ 4605 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was some testimony only on one of those issues, which was the oil company. There was no findings on this issue. But then I would refer you to paragraph (k) which specifically refers to extorting of monies. And also in my opening statement, as is reflected in the trial's transcript, the -- the first thing I said is this is speech designed for an improper purpose. It's unprotected speech designed to extort money from Mr. Cochran. That was the whole theme --
03-1488 +++$+++ 4606 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what -- what I mean is could you have -- without using the label defamation, have stated a claim for extortion or blackmail? I'm not looking at your particular allegations but how you described on page 1 of the complaint what you were suing for: libel, libel per se, slander, slander per se, and invasion of privacy.
03-1488 +++$+++ 4607 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think we could have pled extortion had we chose to. We could have pled inference with advantageous business relations. We probably could have pled California's --
03-1488 +++$+++ 4608 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does California law require you to label the type of the cause of action or is it notice pleading based on facts?
03-1488 +++$+++ 4609 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Notice pleading based on facts, but we do label the causes of action. The -- the point I'm trying to make is whether every cause of action was pled, if the conduct is extortion, which is what the judge implicitly found by findings 20 and 27, that conduct is not protected. And whether we named the cause of action correct in the complaint or we sued for that specified cause of action, doesn't change what it is that we were seeking relief for, which is stopping this man from defaming Mr. Cochran until he was paid money. We attempted to achieve that. We thought we did a fair job in paragraphs 1 and 3, which they don't attack and I agree is not fairly included within the question which has been certified here, nor is an attack on the underlying finding. But we attempted in paragraph 2, broadly I agree, to avoid a multiplicity of actions and to give Mr. Tory other channels of communication other than the public forum where he is engaged in a continuing course of repetitive conduct to defame Mr. Cochran. He -- and -- and this is -- one point that I want to stress. We don't view this injunction as being violated if he went on TV, he went on the radio, he went in the newspapers. We don't view those as public forums under the definition that this Court has provided. Those are not public forums. We are not concerned about that. We do not believe that those events will occur. We did not seek to protect them. So we have given Mr. Tory an unlimited venue to speak, but we said you can't do this in the public forum because of your continuing course of repetitive conduct, 3 years, once a week, 52 times a year, over 150 times, 4 hours a day. And with that, I would submit that while the injunction is broad, I don't believe it's a unconstitutional prior restraint, and to the extent this Court believes it is overbroad, I believe striking subparagraphs (ii) and (iii) of paragraph 2 would solve the problem, or alternatively, that in conjunction with a suggestion that it needs to be narrowed to deal with the speech and conduct in issue. Thank you.
03-1488 +++$+++ 4610 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Cole. Mr. Chemerinsky, you have 4 minutes remaining.
03-1488 +++$+++ 4612 +++$+++ FALSE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. Justice Breyer kindly invited my thoughts about how an opinion might be written, and there are three different ways not mutually exclusive. One is that this injunction is vastly overbroad for all the reasons that have been identified. Mr. Cole said a couple of things. One, he said that Mr. Tory can go to court and ask for modification of the injunction, but that's what makes this a prior restraint, that Mr. Tory can only speak again if he goes to court and gets permission. Also, he said at the end that Mr. Tory can go before the media. However, under California law, under Damon v. Ocean Hill, the media is defined as a public forum. A second way the opinion could be written is that this for speech protected by the First Amendment. Justice Ginsburg, you asked me at the outset whether that's in the scope of the question presented. Well, it is directly relevant to what Mr. Cole was saying. Because it's all opinion, all hyperbole it is protected by the First Amendment and can't be the basis for an extortion claim.
03-1488 +++$+++ 4613 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but you're asking us now to -- the -- the trial court found there was defamation, and now you want to argue, no, it wasn't defamation. It was mere opinion. I really don't see how that's included in the question presented.
03-1488 +++$+++ 4614 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it is because it goes to the question whether the injunction is permissible. But I go on to the third way that the opinion could be written, and that's that injunctions are not permissible as a remedy in a defamation case. We agree that if there is a cause of action for extortion, it can have an injunction as a remedy. We agree if the cause of action is for harassment, there can be an injunction as a remedy. But those have specific elements that have to be met. Those elements weren't met in this case. History is clear that injunctions aren't allowed in defamation cases, and also, Your Honor, it's quite important that Mr. Cole even said you can't craft a narrow injunction in a defamation case. Any injunction is either too narrow or too broad. In Near v. Minnesota, this Court said that it was telling that in 150 years of the history of the First Amendment, there had never been an injunction approved by this Court in a defamation case. We're now 70 years later than that. To approve an injunction in a case like this, even though it's called defamation plus extortion, will open the door to injunctions as a routine matter in defamation cases across the country. No --
03-1488 +++$+++ 4615 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There have been -- there have been injunctions against harassing conduct, threatening, stalking.
03-1488 +++$+++ 4616 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, and we have no objection to injunctions of that sort. What we object to is an injunction as a remedy in a defamation case and an injunction that is directed at speech. That's what the First Amendment prohibits. Thank you.
03-1488 +++$+++ 4617 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Chemerinsky. The case is submitted.
03-1500 +++$+++ 4621 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll now hear argument in Van Orden against Perry. Mr. Chemerinsky.
03-1500 +++$+++ 4623 +++$+++ FALSE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Good morning, Justice Stevens, and may it please the Court: On the grounds of the Texas State Capitol, there is one evident religious symbol that conveys a powerful religious message that there is a theistic God and that God has committed rules for behavior. Of course, the government may put religious symbols on its property, including the Ten Commandments, but must do so in a way that does not endorse religion or a particular religion, but does not have the purpose of advancing religion, but does not favor any particular religion.
03-1500 +++$+++ 4624 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Chemerinsky, I suppose that opening statement suggests that you think that Thanksgiving proclamations are also unconstitutional, which were recommended by the very first Congress, the same Congress that proposed the First Amendment.
03-1500 +++$+++ 4625 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, I would - I'm sorry.
03-1500 +++$+++ 4626 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They also refer to one God, to a theistic ruler of the universe.
03-1500 +++$+++ 4627 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, I think the Thanksgiving proclamations would be constitutional. I think it's analogous to the legislative prayers that this Court upheld in Chambers v. Marsh. I think it's very different than this Ten Commandments monument.
03-1500 +++$+++ 4628 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. But then you have to narrow your opening statement and say that certainly the State can acknowledge the existence of a unitary God without offending the Establishment Clause.
03-1500 +++$+++ 4629 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, but it all depends on how it is done. Here the way in which it is done is the most powerful and profound religious message that this Court has ever considered on government property. Here you have a monument that proclaims not only there is a God, but God has dictated rules for behavior for those who follow him or her.
03-1500 +++$+++ 4630 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't know whether that's any more profound or ultra-religious, super-religious than the prayer that the chaplain gives every day in the House.
03-1500 +++$+++ 4631 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, there is a difference between a prayer that a chaplain gives -- in Chambers v. Marsh, this Court emphasized that the prayer by the chaplain was a nonsectarian prayer. This is very much sectarian. This proclaims that there is a God. It proclaims --
03-1500 +++$+++ 4632 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I mean, I haven't read the prayer. So I would be surprised if I went through all the prayers and there was no mention, direct or indirect, of the Ten Commandments or a couple of them.
03-1500 +++$+++ 4633 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I would be surprised because here, if you look at these commandments, it's that God has claimed that he is the only God, prohibiting idolatry, prohibiting graven images, prohibiting taking the name of the Lord and God in vain. Requiring observing of the sabbath. This is God dictating to God's followers rules for behavior.
03-1500 +++$+++ 4634 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is there any other -- I mean, you can continue if you want, but one difference which I've written down is you say that the difference between this and the prayer is that this is more profoundly religious. Is there any other difference, in your opinion?
03-1500 +++$+++ 4635 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I think the key difference is --
03-1500 +++$+++ 4636 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's the difference? So if I happen to read these prayers in the Congress and I came to the conclusion that in terms of a religious message, I actually thought the prayers had the more religious message, then I should vote against you.
03-1500 +++$+++ 4637 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. There are, of course, other differences. As I said to Justice Scalia earlier, with regard to legislative prayer in Chambers versus Marsh, this Court said that there was a history going back to the very first Congress that allowed there to be those kinds of religious invocations. Ten Commandments monuments standing by themselves, as they do here, certainly are not of that historic origin.
03-1500 +++$+++ 4638 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How about if they're packaged in a museum-like setting and there is some interest on the part of the State in preserving something.
03-1500 +++$+++ 4639 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-1500 +++$+++ 4640 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And displaying a whole variety of things?
03-1500 +++$+++ 4641 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of course, there can be Ten Commandments or any religious works as part of a museum setting. This isn't a museum setting, Your Honor. Every monument on the Texas --
03-1500 +++$+++ 4642 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is this a kind of a park? What do we regard this space as? What is it? Is it a park-like setting?
03-1500 +++$+++ 4643 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is a park-like setting. It is the acres of the State Capitol grounds. Every monument on the State Capitol grounds is there because the State legislature wanted to convey a particular message. It is a felony in Texas, an impeachable offense to put anything on the Capitol grounds without the approval of the legislature. Most of the monuments are there to honor war veterans. This is the only religious message anywhere on the Capitol grounds. And by itself --
03-1500 +++$+++ 4644 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, would it be all right, in your view, if they put several others up for different religions? Then is it going to be okay?
03-1500 +++$+++ 4645 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the clear purpose and message was to honor the diversity of religions in Texas, it would then be permissible. If it were a series of displays like that frieze, the fifteen different --
03-1500 +++$+++ 4646 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You don't object to that?
03-1500 +++$+++ 4647 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Quite the contrary, I think it's a --
03-1500 +++$+++ 4648 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or the depiction on the door of the Court?
03-1500 +++$+++ 4649 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Quite the contrary. This is exactly how the State may display the Ten Commandments.
03-1500 +++$+++ 4650 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the prayers in Congress don't do that and our Thanksgiving proclamations don't do that. They invoke a God, a unitary God, and that's contrary to the dictates of some religions that believe that there are a lot of gods.
03-1500 +++$+++ 4651 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, there is --
03-1500 +++$+++ 4652 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We don't pray to gods, the prayers are always to God. You know, I don't see why the one is good and the other is bad. It's no answer to say, well, you know, the former has been around for a long time. Well, it has but it suggests what the framers and what our society for several hundred years has believed the Establishment Clause means. And it does not -- it is not too sectarian if it invokes a unitary God. Now, you're saying it becomes too sectarian when it invokes the Ten Commandments.
03-1500 +++$+++ 4653 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. I'm saying several things. As I said earlier, first, this Court in Chambers v. Marsh said that there was a unique history to legislative prayers. There isn't a similar history here.
03-1500 +++$+++ 4654 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Chemerinsky, too, doesn't the venue count? After all, we have had the question of prayer in schools, and the Court has said that that was not all right. Prayer in the legislature was distinguished. So it's not just prayer anywhere that the government wants to have it is okay.
03-1500 +++$+++ 4655 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of course, Justice Ginsburg, the venue counts. And here the venue is very important. It is the corner between the Texas State Capitol and the Texas Supreme Court. And in that way, this monument standing alone does convey the government's endorsement for religion.
03-1500 +++$+++ 4656 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. But if the legislature itself can have its sessions opened with a prayer, can the legislature itself want to have the Ten Commandments posted within the legislative halls?
03-1500 +++$+++ 4657 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think there is a very different message that's conveyed.
03-1500 +++$+++ 4658 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can it do that?
03-1500 +++$+++ 4659 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, it can't post the Ten Commandments by itself in its legislative halls because that would then be the government endorsing expression for support for that message. It cannot be, Your Honor, that just because there is a legislative prayer, that any religious message anywhere on government property would then be permissible. As Justice Kennedy has said in his opinion for --
03-1500 +++$+++ 4660 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it's so hard to draw that line. If the legislature can open its own sessions attended by the public with a prayer, you say it cannot, in the same building, display the Ten Commandments.
03-1500 +++$+++ 4661 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, because the message from the government is quite different. The message with legislative prayers, as this Court found in Chambers v. Marsh, is a recognition of a long historical practice. But when it comes to the Ten Commandments, it really is different than even a legislative prayer. This declares not only there is a God, but that God has proclaimed rules for behavior. The Ten Commandments come from sacred texts. As Justice Kennedy said in his opinion of County of Allegheny, certainly a city council could not put atop the city hall building a large Latin cross, even if that city council begins every day with a prayer. It cannot be there just because some religious messages are allowed, like a prayer, that everything then becomes permissible.
03-1500 +++$+++ 4662 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you know, in the First Amendment speech area, we're very, very strict. A moment's delay in publication is a constitutional crisis. And I'm not sure that we should carry that over to this area, where there is this obsessive concern with any mention of religion. That seems to me to show a hostility to religion. I just don't see a balanced dialogue in our cases or in these kinds of arguments.
03-1500 +++$+++ 4663 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I don't believe there should be an obsessive concern with religion. If the Ten Commandments are displayed as part of an overall display of law givers, like that frieze, it's permissible. But when you put sacred texts somewhere on government property, then the message is that the government is endorsing --
03-1500 +++$+++ 4664 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ This is a classic avert your eyes. If an atheist walked by, he can avert his eyes, he can think about something else.
03-1500 +++$+++ 4665 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Your Honor. This Court has said the key is that the government can't endorse religion, in a way that makes some feel like insiders and some like outsiders. Imagine somebody who is Muslim or Buddhist or Hindu --
03-1500 +++$+++ 4666 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask you this question. Supposing -- I recently read a case from the Seventh Circuit on what they did in Lacrosse, Wisconsin. And as we all know, this organization has donated Ten Commandments monuments all over the country. And what they did there is they sold the parcel back to the Eagles, their name, and put up a sign which read, this property is not owned or maintained by the City of Lacrosse, nor does the city endorse the religious expression thereon. Now, my question to you is, if there were a similar disclaimer on this monument, would that be an adequate remedy, in your view?
03-1500 +++$+++ 4667 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be a harder case, but I don't think it would be an adequate remedy. And the reason is the city cannot put a religious symbol standing alone on government property just through disclaimer. That's exactly what County of Allegheny was. There the nativity scene in the courthouse had a plaque saying it was donated by others, but that can't excuse it because otherwise the city could put the large Latin cross just with a disclaimer.
03-1500 +++$+++ 4668 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if the test is whether the reasonable observer would think that the government is endorsing the religious message, wouldn't the disclaimer make it clear to the reasonable observer the government was not endorsing the message?
03-1500 +++$+++ 4669 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the disclaimer would make it a harder case, but I think when you're dealing with the ground in a Texas State Capitol and the Texas Supreme Court, that placement, when you're dealing with the Ten Commandments, sacred texts, I still think that the message the reasonable observer would be that this is the government endorsing religion.
03-1500 +++$+++ 4670 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ At some point, would the State's interest in preserving old objects overcome the objection constitutionally?
03-1500 +++$+++ 4671 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, at some point, it could where it was clear to the reasonable observer that it was there because it was an old object.
03-1500 +++$+++ 4672 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How did this monument get there? Was it in -- is it true that it was put in as a result of promoting a movie about the Ten Commandments?
03-1500 +++$+++ 4673 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The record is unclear as to that. There are certainly many indications in the popular press that Cecil B. DeMille together with his movie, The Ten Commandments, worked with the Friends of Eagles to have these monuments put around the country. But there is nothing in the legislative history that links this particular monument to that.
03-1500 +++$+++ 4674 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't the display on the tablets on the top before you get to the text, before you get to, I am the Lord, thy God. I thought that those were replicas of what was in the film.
03-1500 +++$+++ 4675 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know that, Your Honor. I've tried to find out what that text is. It is not in Hebrew. It is not in a script that anyone was able to recognize. But it is important to notice that if you look at the entire monument, in addition to the Ten Commandments, there is also a Latin symbol of Christ, there is also Jewish Stars of David. And as I was saying in response to Justice Kennedy's question, imagine the Muslim or the Buddhist who walks into the State Supreme Court to have his or her case heard. That person will see this monument and realize it's not his or her government.
03-1500 +++$+++ 4676 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought Muslims accept the Ten Commandments.
03-1500 +++$+++ 4677 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, the Muslims do not accept the sacred nature of the Ten Commandments, nor do Hindus, or those who believe in many gods, nor of course, do atheists. And for that matter, Your Honor, if a Jewish individual would walk by this Ten Commandments, and see that the first commandment isn't the Jewish version, I am the Lord, thy God, took you out of Egypt, out of slavery, would realize it's not his or her government either.
03-1500 +++$+++ 4678 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You know, I think probably 90 percent of the American people believe in the Ten Commandments, and I'll bet you that 85 percent of them couldn't tell you what the ten are. (Laughter.)
03-1500 +++$+++ 4679 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And when somebody goes by that monument, I don't think they're studying each one of the commandments. It's a symbol of the fact that government comes -- derives its authority from God. And that is, it seems to me, an appropriate symbol to be on State grounds.
03-1500 +++$+++ 4680 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I disagree, Your Honor. For the State to put that symbol between its State Capitol and the State Supreme Court is to convey a profound religious message. If you're just saying, now, this isn't there for its secular reason. If someone were to read this monument, one sees that it emphasizes its religious content.
03-1500 +++$+++ 4681 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It is a profound religious message, but it's a profound religious message believed in by the vast majority of the American people, just as belief in monotheism is shared by a vast majority of the American people. And our traditions show that there is nothing wrong with the government reflecting that. I mean, we're a tolerant society religiously, but just as the majority has to be tolerant of minority views in matters of religion, it seems to me the minority has to be tolerant of the majority's ability to express its belief that government comes from God, which is what this is about. As Justice Kennedy said, turn your eyes away if it's such a big deal to you.
03-1500 +++$+++ 4682 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I disagree, Your Honor. Because this Court has said that above all, the government can't make some feel like they're insiders and some like outsiders. Even if they're the majority religion --
03-1500 +++$+++ 4683 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, suppose a non-Christian, say a Muslim, comes before a judge who has very strong Christian beliefs, a very religious person. Does he feel like an outsider? And to require that we pretend that there is no religious motivation, no deep religious conviction on the part of many of our public officials seems to me to be a hostility toward religion.
03-1500 +++$+++ 4684 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. Imagine that judge put the Ten Commandments right above his or her bench. That would make some individuals feel like outsiders. Of course, many judges have religious beliefs, but they can't have the religious beliefs above them. And Your Honor, that's not hostility to religion. As this Court said in County of Allegheny, excluding religious symbols like the nativity scene, when displayed by itself, is not hostility to religion. Last year in Locke v. Davie, this Court said that to deny funding through the State of Washington for scholarships was not hostility to religion. Enforcing the Establishment Clause is not about hostility to religion. It is about making sure that every person who walks into that courtroom can feel that it's his or her government.
03-1500 +++$+++ 4685 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's an important point to me, but I don't see any way to get there in these difficult cases without making a practical judgment about whether that's really so. And the reason I say that, I start with Goldberg's opinion with Harlan in Schempp. And I know there are a lot of others, but I don't know if we've found a satisfactory test. And the point that they make is the government should be noninvolved with the religious, and it can't favor one over the other. But at the same time, we are a religious nation, where most people do believe in God and most of our institutions flow from the religious nature of our people. The City on the Hill, proclaim liberty throughout the land. All of those are religious. So how can the government, without what they call the pervasive and brooding commitment to secularism, which they think would be wrong, become necessarily involved because of our traditions, but not go too far? Now, I come to the conclusion very tentatively, there is no way to do it other than look at the divisive quality of the individual display case by case. And when I do that, I don't find much divisiveness here. Now, I'm exposing the whole thing not because I'm accepting it, but I would love to hear what you think.
03-1500 +++$+++ 4686 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, I think that the test that this Court has formulated do draw those lines. With regard to your point about divisiveness, the Ten Commandments is enormously divisive right now. I don't think we can ignore the social reality. The chief justice of the Alabama Supreme Court resigned, there are crowds outside today. I got hate messages this week, not because people care about the Ten Commandments as a secular document, but people care about the Ten Commandments because it's a profound religious message. And many want that religious message on government property. And I'm saying the government can put the Ten Commandments there as part of an overall display of law givers, because, Justice O'Connor, it's an overall display about diversity of religion. But when the Ten Commandments sits by itself it is, to use your word right now, enormously divisive. And that's why, from that criteria, it does violate the Establishment Clause.
03-1500 +++$+++ 4687 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about the opening of this Court's session today, in a manner that has been used since John Marshall, is that divisive because there are a lot of people who don't believe in God.
03-1500 +++$+++ 4688 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But You Honor, I think that you have to distinguish between minimal religious content and maximum religious content.
03-1500 +++$+++ 4689 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Chemerinsky, on that point, how much of the Ten Commandments -- I mean, once we get to thou shalt not kill or murder, then there are tenets to govern a society, but how much are strictly about the obligation that man owes to God?
03-1500 +++$+++ 4690 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The first of the two tablets, the first five commandments, Your Honor, and of course religions belief this was written in God's own hand and given to Moses. It's believed that the first five commandments that you were referring to are God's prescriptions for religious behavior. The latter five, the others that you're referring to, were God's commands for secular behavior. All of these are God's commands to God's people. And that's what makes it different than the minimal religious content of God save this Honorable Court that Justice Scalia was referring to. The core of Texas's argument seems to be that it's there for secular purposes. But of course, if one looks at this monument, one sees that it's emphasizing the religious content and there is nothing that would lend the reasonable observer to see the secular content. It says in large letters, I am the Lord, thy God.
03-1500 +++$+++ 4691 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, suppose, Mr. Chemerinsky, it was like Moses on that frieze where there are commandments showing, but there are only the sixth through tenth commandment. Would that be all right?
03-1500 +++$+++ 4692 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, if it was like Moses on that frieze together with fourteen other symbols, absolutely okay, because it would clear to the reasonable observer --
03-1500 +++$+++ 4693 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if we just had the Moses with the tablet that has the instructions for how people will conduct themselves in a civilized society versus worshiping the Lord.
03-1500 +++$+++ 4694 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that would still be unconstitutional between the Texas State Capitol and the Texas Supreme Court because it would still be the State of Texas expressing the message that there is a God and that God has dictated these rules for behavior.
03-1500 +++$+++ 4695 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, what if you go one step further and there was simply a tablet without any embellishment about source saying, you know, thou shalt not kill, thou shalt not covet, et cetera, basically just the last five commandments, pure and simple. Would you have any objection on Establishment Clause grounds?
03-1500 +++$+++ 4696 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the tablets were by themselves in that way, between the Texas Supreme Court and the Texas State Capitol, it would be a harder case, but I believe it would still be unconstitutional because those tablets do convey a message that God --
03-1500 +++$+++ 4697 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, I'm just talking about when I -- I don't know if I used the word tablet. I'm just talking about a piece of stone or a 10 poster that says thou shalt not kill, thou shalt not 11 covet, thou shalt not bear false witness, et cetera. Would there be any Establishment Clause 13 objection simply because though it does not say so, those 14 were quotations from the last six commandments - last five commandments.
03-1500 +++$+++ 4698 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. If all 16 it said was thou shalt not kill and thou shalt not 17 steal, I don't think that that would be a problem 18 because, of course, those are a reflection of law.
03-1500 +++$+++ 4699 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Who are you kidding? I 20 mean, everybody knows that comes from the Ten 21 Commandments. And what that message says is that 22 these commands that are engraved on the human heart 23 come from God. Why put it that way? You know, 24 instead of that, just quote the State statute against 25 murder. That's not what they're doing. They're saying these basic principles of human behavior that we're governed by come from God. And that message would be conveyed so long as you use the terminology of the Ten Commandments. That's what the Ten Commandments stand for.
03-1500 +++$+++ 4700 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But Your Honor, this Court has emphasized that content and context matter enormously. And what I'm trying to do is to distinguish the situation where in Texas, it was clearly tablets with the words, I am the Lord, thy God, with five commandments for religious behavior and five for secular behavior. From Justice Souter's question, there are five others and especially those that are reflected in State law, like thou shalt not kill and thou shalt not steal. I think that the message is different there. It is the words, I am the Lord, thy God.
03-1500 +++$+++ 4701 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I think you're telling us that the State cannot accommodate religion. The only way they can do it is to put the Ten Commandments up and insist that it's always secular, whether it's predominantly for a secular purpose. It seems to me that's hypocritical and it's asking religious people to surrender their beliefs and that is not accommodation.
03-1500 +++$+++ 4702 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. I do think that it degrades religion to have to have the Ten Commandments defended for their secular purpose. I do think, though, that what's required of the government, when it puts religious symbols on government property, is to not be endorsing religion. That's why a nativity scene by itself in the County of Allegheny case was unconstitutional. On the other hand, that's why the nativity scene as part of a unified display in Lynch v. Donnelly was permissible. That's why, if the Ten Commandments are part of an overall display like this frieze, it's permissible. If it's part of an overall display about religious tolerance, and that's what the reasonable observer would see, it is permissible. But where it is the Ten Commandments themselves, placed as they are here, then it really is about the government endorsing religion, then it is the purpose of advancing religion and then it does violate the Establishment Clause.
03-1500 +++$+++ 4703 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So the word accommodate should not be within our jurisprudence?
03-1500 +++$+++ 4704 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Accommodate should very much be in the jurisprudence. And any time there is a Free Exercise Clause claim, then there has to be careful attention to accommodating religion. But there is no Free Exercise Clause claim in this case, Your Honor, so this isn't a case about accommodating anybody's religious beliefs. This is about the State expressing support for religion with sacred and solemn religious texts on government property. And my position is --
03-1500 +++$+++ 4705 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can the State express its support for religion generally?
03-1500 +++$+++ 4706 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it would all depend
03-1500 +++$+++ 4707 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose it didn't have the Ten Commandments, it just had a big thing that says religion is good. It said religion is the foundation of our institutions. Suppose there were something like that. Would that be bad?
03-1500 +++$+++ 4708 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that would be a problem under the Establishment Clause because it's minimal --
03-1500 +++$+++ 4709 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But there are atheists who disagree with that intensely.
03-1500 +++$+++ 4710 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But Your Honor, I'm not arguing for a heckler's veto by atheists. What I am saying is that when the government puts sacred and solemn texts taken directly from the Bible at the core of its State government, it has to then do something to convey the message that it's not there for religious purposes, that it's there for secular purposes.
03-1500 +++$+++ 4711 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Doesn't it matter whether that text has acquired an independent meaning of its own? As I say, I don't think most people know what the text of the Ten Commandments are, but they do know that it stands for the fact that our laws are derived from God. That's what it stands for. Why isn't that symbolism sufficient to enable the State of Texas to use it?
03-1500 +++$+++ 4712 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Ten Commandments monument by itself conveys the message that the Ten Commandments are the source of law and it's that message the State can't convey. May I save the rest of the time for rebuttal?
03-1500 +++$+++ 4713 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, you may save your time.
03-1500 +++$+++ 4714 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
03-1500 +++$+++ 4715 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ General Abbott, we'll hear for you, please.
03-1500 +++$+++ 4717 +++$+++ FALSE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: Every court that has reviewed the specific facts of this case has agreed that the Texas monument is constitutional under this Court's well settled precedents in Lynch and Allegheny. This Court should agree that the Texas monument should not be torn down from its historical place for three reasons. First, the Ten Commandments is an historically recognized symbol of law. Second, this monument is one of the smallest of the 17 monuments on the Capitol grounds, and like most of the other monuments, was a gift to the State of Texas and is clearly recognized as such on the monument itself. And third, this monument has stood for more than 40 years without controversy on a national historic landmark. In fact, even the --
03-1500 +++$+++ 4718 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you this question? Under your analysis of the reason this is justifiable, would it equally be permissible to have a crucifix of the same size in the same location on the Capitol grounds?
03-1500 +++$+++ 4719 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, I think that would pose a much greater problem.
03-1500 +++$+++ 4720 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's not my question. Do you think it would be permissible -- it seems to me your reasoning that you've given us would support that result. And maybe that's the correct result. I'm wondering what your view is.
03-1500 +++$+++ 4721 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I seriously question whether or not a crucifix would be constitutionally acceptable in that same location, and for the very same reasons which I'm articulating why the Ten Commandments would be acceptable in this location. The crucifix is not like the Ten Commandments in that it's not an historically recognized symbol of law. It doesn't send a secular message to all the people, regardless of whether or not they are believers or not believers of the important role the Ten Commandments have played in the development of law.
03-1500 +++$+++ 4722 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's not a secular message. I mean, if you're watering it down to say that the only reason it's okay is it sends nothing but a secular message, I can't agree with you. I think the message it sends is that law is -- and our institutions come from God. And if you don't think it conveys that message, I just think you're kidding yourself.
03-1500 +++$+++ 4723 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Scalia, the Ten Commandments send both a religious message and a secular message. When people --
03-1500 +++$+++ 4724 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the district court, I think in this very case, found that commemorating the Ten Commandments' role in the development of secular law was not one of the State's purposes in accepting the monument. Now, will you accept that finding as the case comes to us? That hasn't been challenged. We don't have any cross appeal. I assume we accept that finding of the district court.
03-1500 +++$+++ 4725 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Court obviously is correct to accept that finding. As you know, from the district court's finding, the secular purpose that was accepted by the district court was to honor the Fraternal Order of Eagles. But also there was an ongoing --
03-1500 +++$+++ 4726 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you're arguing for something contrary to the district court's finding.
03-1500 +++$+++ 4727 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm actually, Justice O'Connor, arguing for purposes that are in addition to that district court's finding because there was an ongoing purpose to retain this now historical monument that has stood for more than 40 years without controversy on a national and historic landmark.
03-1500 +++$+++ 4728 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So in another case, if a government official feels that the Ten Commandments have been very, very important in his or her life as a spiritual or religious matter and wants other people to know how important the Ten Commandments are, he cannot accept on behalf of the city the Ten Commandments. And so you can have no Ten Commandments in city A, but the Ten Commandments in city B. General, that doesn't make a lot of sense to me. And again, you're just doing with purpose what you did in response to Justice Scalia's question. You're asking us to ignore the religious purpose that is the most manifest value of these symbols.
03-1500 +++$+++ 4729 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, with regard to both purpose and effect in this particular setting, I don't think that religion was the driving force. I know that all of the evidence shows that religion was not a driving force in any respect.
03-1500 +++$+++ 4730 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I suppose that every monument that's on the State Capitol grounds in Texas in a sense conveys a message of State endorsement, State endorsement of the role of servicemen in fighting earlier wars or in support of the Boy Scouts or whatever it might be, doesn't it? I mean, by placing them there with the legislative approval, is that not really some kind of a message of endorsement for each one?
03-1500 +++$+++ 4731 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If I may clarify an important fact and that is clearly the State of Texas, by displaying 17 monuments in a museum-like setting on the Capitol grounds, is trying to acknowledge and commemorate certain events. It's important for the Court to remember, though, that the State of Texas has specifically endorsed nine of those monuments by putting the State seal or the Lone Star seal for the State of Texas on those nine monuments. This monument does not have that kind of endorsement on there.
03-1500 +++$+++ 4732 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't it all the case, as has been pointed out, that no monument is going to be on the grounds of the Texas State Capitol without the approval of the legislature? You don't dispute that, do you?
03-1500 +++$+++ 4733 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not at all. That is very true.
03-1500 +++$+++ 4734 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you don't dispute that anyone going on those grounds would assume that the State government approved it or it wouldn't be there?
03-1500 +++$+++ 4735 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, of course the presumption would be that people on the Capitol grounds would assume the State of Texas wanted those monuments on the Capitol grounds.
03-1500 +++$+++ 4736 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I'm not sure that that endorsement -- in England, there is a square where they have King Charles on one hand -- on one end and he's looking at Oliver Cromwell, who beheaded him, on the other. I don't know if you have to endorse one or the other.
03-1500 +++$+++ 4737 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Kennedy, I believe that there is a very meaningful difference between this Court's standards of an endorsement and what a State or the nation may do with regard to commemoration. As an easy example, on the National Mall, there is, of course, the Lincoln Memorial and in the Lincoln Memorial, there is text from the King James version of the Bible. The nation commemorates and acknowledges Lincoln and what he has said. But by that display, the United States is not trying to endorse the King James version of the Bible or a particular religious message in that. Instead what the state
03-1500 +++$+++ 4738 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you have to contend with the fact that the district court found that this sort of commemoration of the Commandments involved was not the objective in placing the monument there, so you're left basically with a religious text. And if anybody has any doubt about that, the religious text is surrounded by some religious symbols, the Chi Rho, the Star of David. So it seems to me that it's hard to find, if we accept the district court findings, that there's anything here but an expression of approval by the State of Texas for a religious expression, and only for the religious expression.
03-1500 +++$+++ 4739 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sir, all other factors, though, Justice Souter, as a person who stands in front of that monument clearly recognizes, centered in a specialized scroll is an indication that this was a monument that was dedicated and presented to the people and the youth of the State of Texas by the Fraternal Order of Eagles. There is no stamp of approval on this by the State of Texas on that monument.
03-1500 +++$+++ 4740 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you're not trying to withdraw the -- I took it to be the concession that of course anyone would reasonably assume that the State of Texas approved this message, and thought it was appropriate to devote state property to its promulgation.
03-1500 +++$+++ 4741 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Clearly the State of Texas approved of the monument being on the grounds --
03-1500 +++$+++ 4742 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But then the fact that the Eagles also approve it doesn't really get us very far, does it?
03-1500 +++$+++ 4743 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, where I believe it gets you, as this Court has recognized, there is a very meaningful difference between acknowledging something and endorsing something. For example, the creche in Lynch or the menorah in Allegheny.
03-1500 +++$+++ 4744 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me ask you this. If the Eagles' presentation statement weren't on there, would that make a difference to Establishment Clause analysis?
03-1500 +++$+++ 4745 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that the Eagles' disclaimer on there helps our case, but if it were not on there, I think the monument could still stand just as the creche did in Lynch or the menorah in Allegheny. The city of Pawtucket was not endorsing the creche in the display, it was acknowledged as part of the overall holiday celebration.
03-1500 +++$+++ 4746 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is the -- that's one of the problems with the argument, it seems to me, that by putting the Ten Commandments monument on grounds that have lots of other monuments, that the religious message is somehow either diluted or changed. Contrast the situation in Texas with what we've got here. You've got Moses up there with at least the last five commandments showing. But Moses is in the company of a group of individuals who are nothing but law givers. You've got Menes and Hammurabi and John Marshall and the rest of them. There is an obvious theme. Anybody who looks at the identity -- or knows the identity of these figures is saying they're getting at law givers. But if you look at the grounds of the Texas State Capitol, you see wars, pioneer women, children and so on. There is no one common theme. The only theme seems to be these are objects or symbols that are worthy of some kind of respect. And one of them is religious. Being mixed into a group that has no common theme does not eliminate the religious -- the obvious religious message from this monument. Isn't that correct?
03-1500 +++$+++ 4747 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, just as this Court may display in the courtroom itself, Moses with the Ten Commandments amongst law givers, doesn't mean that that is the only way the Ten Commandments --
03-1500 +++$+++ 4748 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Maybe it doesn't, but I'm trying to find a rationale for the argument that's being made, and that I thought you were alluding to. The argument is that by mixing this in with a grab bag of other symbols, you have somehow diluted or changed the focus from a religious message to something else. And I can understand that in the Moses case in the frieze because there is a clear common theme. On the Texas grounds, at least insofar as I can tell, there is no common theme. There are a series of objects that say, these are worthy of veneration. One of them is religious. There is nothing that removes the religious message from its prominence in the display the way the religious message is removed from prominence in the Moses display, isn't that correct?
03-1500 +++$+++ 4749 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if I may explain with two points. One, there is a common theme on the Texas Capitol grounds, just as there are on most Capitol grounds and on the National Mall. And the common theme is to recognize historical influences in our country and in our State.
03-1500 +++$+++ 4750 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what do you do with the district court finding?
03-1500 +++$+++ 4751 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the district court finding obviously chose to decide that the secular purpose for the display was to honor the Fraternal Order of Eagles for their commitment to combating juvenile delinquency. But that is different -- the purpose why the district court found why the display was constitutional is different than the message that is being sent to the reasonable observer.
03-1500 +++$+++ 4752 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You had a second point and I don't want to miss your second point.
03-1500 +++$+++ 4753 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The second point is that there are other displays in this Court. As a person walks into this courtroom or exits the courtroom, they don't see the Ten Commandments in a display with a bunch of law givers. Instead, they see the Ten Commandments alone with an eagle above it.
03-1500 +++$+++ 4754 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They see blank tablets. They don't see any writing. This is the only one that has script on it. It has numbers and in fact that's confusing because one of them, the people think is the Ten Commandments is the Bill of Rights. (Laughter.)
03-1500 +++$+++ 4755 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, clearly the Ten Commandments that are reflected on the doorway into and out of this courtroom don't have words on them like the tablets do in the State of Texas.
03-1500 +++$+++ 4756 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But we know what they are, don't we?
03-1500 +++$+++ 4757 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do and that's the point. Even more importantly, the reasonable observer knows what --
03-1500 +++$+++ 4758 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But do we know which version of the Ten Commandments it stands for? There are three different versions at least.
03-1500 +++$+++ 4759 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I happen to agree with the Petitioner. There is more than three versions of the Ten Commandments. And the purpose, if you go back to what the Eagles were trying to achieve here, was to come up with a version of the Ten Commandments that wasn't reflective of any particular religion.
03-1500 +++$+++ 4760 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And it doesn't matter what the version is, does it? If it just stands for the fact that laws -- the foundation of our laws is God. If that's all it stands for, who cares what the text is.
03-1500 +++$+++ 4761 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ General Abbott, would the Texas purpose be equally served if the monument had on it the kind of disclaimer that the city in Wisconsin put on its monument?
03-1500 +++$+++ 4762 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, I apologize, I'm not familiar with that disclaimer.
03-1500 +++$+++ 4763 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It reads this way. What they did is they sold the parcel of land that had the Eagles' donation on it back to the Eagles and then they put a fence around it and then they put this sign up, "This property is not owned or maintained by the City of Lacrosse, nor does the City endorse the religious expression thereon." Maybe as long as it's still on the property, it couldn't be the same. But suppose you had a comparable disclaimer. Would that defeat any of the purposes on which you relied to justify having the statue there?
03-1500 +++$+++ 4764 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A disclaimer like that would surely ensure that this display is constitutional. However, it's our contention --
03-1500 +++$+++ 4765 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And would it undermine the message that you legitimately seek to convey?
03-1500 +++$+++ 4766 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe it would.
03-1500 +++$+++ 4767 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, why don't you do it and we wouldn't have this case? I really would consider it something of a Pyrrhic victory if you win on the ground that you're arguing. So that in all future cases, we're going to have to examine displays of the Ten Commandments to see whether there was ever any intent to say that our laws are ultimately dependent upon God. Is that what you want us to do case by case?
03-1500 +++$+++ 4768 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, this Court obviously has decided Establishment Clause cases on a case-by-case basis, but in this particular instance, the Ten Commandments displayed in a museum-like setting on the Capitol grounds arrayed among 17 other monuments, the message that is received by the viewer who is trekking through the Capitol grounds looking at monuments is clearly one not of the State of Texas.
03-1500 +++$+++ 4769 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I've got to get one question before you leave because you're the one who knows the record. And what I've had a hard time finding in the record is what I think there must be some material that the State or somebody in a tourist office or a guide or somebody tells people what the 17 different monuments are. And all I've found is the general brochure which doesn't tell them what they are. And I found something on the Internet. Well, which is in the record. But aside from this page from the Internet in the record and that, is there anything else in this record that if somebody wanders around, they're on the State grounds, they say, what is this, what are these things anyway? There must be something that tells them. And where is it?
03-1500 +++$+++ 4770 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The state provides a walking tour guide.
03-1500 +++$+++ 4771 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And the brochure doesn't tell what they are. This thing, it says grounds?
03-1500 +++$+++ 4772 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, Justice Breyer, if I could refer you to page 205 of the Joint Appendix, it provides a description of each of the monuments on the walking tour. And if I could also refer the Court to page 117 of the Joint Appendix, it shows the actual walking tour where a person would go along the process of seeing the monuments. But clearly as they walk through the Capitol grounds, what any observer, not just the reasonable observer, what any observer would notice is that before they could even get to this particular monument, they will have passed in full view of countless other monuments and historical markers clearly indicating to them that they are not there for the purpose of seeing just the Ten Commandments but they are in a museum-like setting cast among many different kinds of monuments. And so they appreciate the setting before they even arrive at the Ten Commandments monument. Also when they arrive at the Ten Commandments monument, they will notice it is one of the smallest of the monuments on the Texas Capitol grounds. It does have the disclaimer on it indicating that it was donated by the Fraternal Order of Eagles. It does not have the State seal on it like many of the other monuments, so it's not --
03-1500 +++$+++ 4773 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it like how many other monuments? This is not peculiar to Texas. The Order of the Eagles have given how many monuments just like this one, identical to this one?
03-1500 +++$+++ 4774 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, it is actually not clear from the record. There have been some accounts of hundreds, maybe even into the thousands that the Fraternal Order of Eagles have given out. And I cannot tell you for a fact that they are all identical.
03-1500 +++$+++ 4775 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When you said that every court that has considered this case has said it's compatible with the Establishment Clause, did you mean just this Texas case or other cases involving an Eagles Ten Commandments?
03-1500 +++$+++ 4776 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, my reference was to the fact that every case that has considered the specific -- every court that has considered the specific facts of this case, meaning the Texas case --
03-1500 +++$+++ 4777 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you didn't mean this particular depiction of the Ten Commandments?
03-1500 +++$+++ 4778 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. What I meant is that both the district court and the Fifth Circuit Court of Appeals specifically reviewed the facts of this case and were all in complete agreement that the facts of this case render this monument constitutional under this Court's well settled precedents in Lynch and Allegheny. One other thing I would like to draw the Court's attention to that will give you a very well understanding of what the monument looks like and its setting is the videotape that is Exhibit 44, it's obviously not part of the Joint Appendix, but it demonstrates how this particular monument is set in a museum-like setting amongst many other monuments and gives you the perspective of what the typical viewer would appreciate as they walk around the Capitol grounds.
03-1500 +++$+++ 4779 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Kind of an eclectic museum. One message that you get is that the State is honoring the donor of the various --
03-1500 +++$+++ 4780 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ General Abbott, I want to thank you for your argument and also for demonstrating that it's not necessary to stand at the lectern in order to a fine job. Thank you.
03-1500 +++$+++ 4781 +++$+++ TRUE +++$+++ GEN. ABBOTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Your Honor.
03-1500 +++$+++ 4782 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Clement.
03-1500 +++$+++ 4784 +++$+++ FALSE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: The Ten Commandments have undeniable religious significance, but they also have secular significance as a code of law and as a well-recognized historical symbol of the law. When a State decides to display a Ten Commandments display along with more than a dozen other monuments on its Capitol grounds in order to honor the donor, it is not endorsing the religious text of the Ten Commandments. And in the same way, when a state has that monument as part of such a collection, the Establishment Clause should not be interpreted to force them to send a message of hostility to religion by singling out that one monument for removal solely because of its religious content.
03-1500 +++$+++ 4785 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Clement, can I ask you to address one thing that troubles me about the case? As I understand it, it's the Protestant version basically of the Ten Commandments we have before us, which has significant differences from the Catholic version and the Jewish version. And I understand it was the result of consultation and so forth. But I noticed in your brief, you list the States in which the Ten Commandments displays are listed, there is none for Rhode Island, which I often think of as primarily a Catholic state, and the only one from Massachusetts is a frieze on the north wall of the public library which apparently didn't have the text of the commandments in it. Is there any significance to the fact that this kind of display may be more popular in areas of the country where the Protestant religion is dominant as opposed to other versions of Christian religions?
03-1500 +++$+++ 4786 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, I don't think so. I mean, we didn't purport to do an exhaustive survey, but I think there is a well-represented group of displays throughout the country including, I think, in States that probably have relatively high Catholic populations. But I think we would steer this Court away from attributing too much significance to the fact that if a State is going to display the Ten Commandments at all, it will necessarily have to display a version that reflects one or another sect's preferences. I mean, in the Marsh case, for example, this Court upheld legislative prayer. It understood that they would necessarily have to choose a chaplain and that chaplain would necessarily be of one denomination or another. And this Court didn't doom the whole practice of legislative prayer because of the necessity of picking a chaplain of one denomination or another. In fact, in the Marsh case itself, this court upheld Nebraska's practice, even though they had chosen the same Presbyterian minister for 16 straight years. And so I don't think this Court in other Establishment Clause contexts has steered away from putting the States and municipalities in a catch-22. And given that this Court has suggested even in Stone against Graham that the Ten Commandments can be displayed, can be used in certain settings, it can't be that once the State in practice picks a particular version, it's all of a sudden guilty of a sectarian preference.
03-1500 +++$+++ 4787 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, the other thing that was notable about your listing is most of the examples are examples of displays of the event itself rather than the text. And there is an argument made I think by Professor Laycock that when you display the entire text, it's kind of a different sort of symbol than when you just have a symbolic presentation.
03-1500 +++$+++ 4788 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Stevens, I think there are quite a few of both types of displays and I think the very fact that the Fraternal Order of Eagles put a lot of these displays out suggests that a bunch of them are textual displays. I'm not sure, though, that a display that actually has Moses receiving the Ten Commandments from God is any less religious. I would suggest that's actually more religious than one that just displays the monument standing alone. If the monuments are standing alone, you can I think appreciate the fact that maybe they're being displayed for their secular significance as well as their religious significance. When Moses is there, it's hard to avoid the implication that they are the revealed law of God, as opposed to also a secular code. So in that sense, I'm not sure that the variations in the display --
03-1500 +++$+++ 4789 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You think just a symbolic display is less objectionable than quoting the text as this monument does?
03-1500 +++$+++ 4790 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Stevens, I would say -- my point is not that there are not other ways to display it. I mean, certainly I think, as we point out in our brief, blank tablets or tablets with Roman numerals are less objectionable -- certainly, I don't think they're beyond objection -- than a textual display. My point was that I'm not quite sure how one would balance sort of four Commandments and Moses versus all Ten Commandments in text. I think it's a close call.
03-1500 +++$+++ 4791 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, except the four Commandments and Moses would avoid the differences between the three different versions of the Ten Commandments, whereas when you quote one, you must select one over the other two.
03-1500 +++$+++ 4792 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I guess I'm not sure that's true. I mean, some of the displays that are out there in courthouses have Moses receiving the Commandments and have text. And I guess, my point, though, would be, again --
03-1500 +++$+++ 4793 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Most of them don't.
03-1500 +++$+++ 4794 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To be sure, to be sure. But I would hope the constitutional line wouldn't be that you can't have text. I mean, the Ten Commandments have a role in our society and had an influence on the development of the law as text. I mean, you know, they weren't influential with ten Roman numbers. They were influential as text.
03-1500 +++$+++ 4795 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ General Clement, there is a question I have about the government's position. And does place matter at all? I mean, here we're talking about the grounds surrounding a State Capitol. What about every school room, if that's the choice of the school board? Is it the same or do you make -- or every courtroom up to the court to decide for itself?
03-1500 +++$+++ 4796 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Ginsburg, I certainly think location and context matters. I think in almost every Establishment Clause context, the setting and context matters a great deal. The school case, for example, as you suggest, I mean, unless this Court is going to revisit Stone against Graham, it's certainly true that the school context at least raises much more difficult questions. In terms of where it can be displayed in a courthouse, I think there are certainly permissible displays in the courthouse, but it may be something all together different to have a display in a way that it actually looks like a religious sanctuary within the walls of the courthouse.
03-1500 +++$+++ 4797 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It looks just like this monument. Let's take this monument and put it in the rotunda of the court because the judges of that court choose to have it there. Is that all right?
03-1500 +++$+++ 4798 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, I think putting it in the rotunda of the court as a stand-alone monument, giving it sort of pride of place, if you will, raises a much more difficult question, to be sure, and may well cross the constitutional line. As I was alluding to, the one case I'm familiar with, which is the case of the Alabama Supreme Court, there it was displayed in a way that the district court literally found it was like a religious sanctuary within the walls of the courthouse.
03-1500 +++$+++ 4799 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And do you think that it should cross the constitutional line under the interpretational theory of the First Amendment you wish us to adopt?
03-1500 +++$+++ 4800 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the display that I have in mind in the Alabama Supreme Court probably does cross the constitutional line even under our view. I think that a display of the Ten Commandments in some appropriate way in the courthouse certainly wouldn't cross the line that this Court -- that we would have this Court draw. I mean, we think, for example, it cannot be that the very fact that moving it closer to the courthouse itself is a constitutional problem because as you yourself have pointed out, Justice Kennedy, the legislative prayers that were approved in Marsh v. Chambers were at the absolute epicenter of the government. And still those were a permissible acknowledgment of religion. So I think while context matters, I don't think solely the fact that it's moved closer to the seat of government does have a dispositive impact. And again, I would say in response to Justice Stevens' question, I do think it is important to remember that there is going to have to be a choice among the various documents if they are going to be displayed at all. And I don't think that the Constitution puts the municipalities and the States in the bind of being able to display the Ten Commandments in theory, but in fact, not being able to pick any one version --
03-1500 +++$+++ 4801 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What would your comment be on requiring a disclaimer of some kind?
03-1500 +++$+++ 4802 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Stevens, two points to make about that. One is certainly a disclaimer would make this an easier case. And I would point out that there is a disclaimer of sorts on the monument already because it clearly states that it was a gift from the Fraternal Order of Eagles.
03-1500 +++$+++ 4803 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It is kind of ambiguous.
03-1500 +++$+++ 4804 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is, Justice Stevens, and I'm troubled frankly by the suggestion that they would have to go as far as you suggested they would go under the City of Lacrosse case. The idea that in order to have the Ten Commandments monument on the Capitol grounds, the State of Texas has to cordon that monument off, unlike any other of the 17 monuments, suggests a hostility to religion. I think the idea that there has to be a fence away from the Ten Commandments to make clear that the State has nothing to do with the Ten Commandments is bending over too far in the other direction. The State can have, as this Court has acknowledged many times, permissible acknowledgments of religion. And I don't think in this case that the State of Texas has gone too far. One other point I think that is important to put on the table, and it is consistent with the analysis of both the district court and the Fifth Circuit, is that whatever the original purpose is for Texas accepting the monument and displaying it in the first instance, they now have an additional secular purpose in retaining the monument. And I would point this Court to Judge Becker's analysis in the Chester County case for the Third Circuit. In that case, he had a display that was admittedly smaller, but it was actually a much more overtly sectarian version of the Ten Commandments. It had the Ten Commandments plus the summary of the Ten Commandments from the New Testament. And nonetheless, Judge Becker said that in that case, the monument had been there since 1920 and Chester County had a legitimate secular purpose in maintaining that document and maintaining the plaque on the courthouse. And I think he correctly understood that in these cases of displays that have stood for 40 years or longer, that the State is in something of a dilemma. Thank you, Your Honor.
03-1500 +++$+++ 4805 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Chemerinsky, you have four minutes left.
03-1500 +++$+++ 4807 +++$+++ FALSE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. This case comes down to two questions. First, is the Ten Commandments a highly religious message. And second, can the government place a single religious message on government property at the seat of its government. As to the first question, Stone v. Graham resolves this because this Court said that the Ten Commandments is an inherently religious message no matter what disclaimer accompanies it. The Ten Commandments is not on the Texas State Capitol grounds simply to recognize the role of religion in government. It is not simply an acknowledgment. It is sacred text taken directly from the Bible. It's not there about the history of religion in Texas. There is nothing that would tell the reasonable observer that it is there for historical purposes. It isn't there for history. What about all the other religions that have played a role in Texas history? The Muhammad religion, even Madeleine Murray O'Hare. Is Texas saying they would accept statues for all of these individuals there as part of the history of Texas? The second question is, can the government place a single religious message by itself on government property, especially at the seat of government. The County of Allegheny case resolves that. This is much like the nativity scene at the seat of the county government. What's important and hasn't gotten enough emphasis this morning, this is the sole religious message anywhere on the Texas State Capitol grounds. This isn't a museum. Every item that's there is there because the Texas legislature chose to put it there. Most of them honor veterans of particular wars. Texas put this there precisely to express the religious message. Your Honors, what's left of the Establishment Clause if any item can be displayed with the most profound religious contents? Do we then say the observer can just avert his or her eyes? The observer could have averted his or her eyes in the County of Allegheny case. But this Court was clear in saying that a single religious message, a single religious symbol on government property is inherently an establishment of religion. For this reason, the Texas monument violates the Establishment Clause. Thank you.
03-1500 +++$+++ 4808 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Chemerinsky. The case is submitted.
03-1566 +++$+++ 4812 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We will now hear argument in Orff against the United States. Mr. Smiland.
03-1566 +++$+++ 4814 +++$+++ FALSE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: The relevant language of the 1963 contract, as illuminated in the surrounding circumstances, was confirmed in the express terms of the 1986 stipulated judgment which commanded the district and the United States to perform the contract. In particular, the first sentence of paragraph 4.2, which is at joint appendix page 111, states -- and I quote -- the district acknowledges that it entered into the 1963 contract for the benefit of Areas 1A and 1B. That's the premerger --
03-1566 +++$+++ 4815 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Smiland, do you mind telling us why the petitioners never filed suit in the Court of Federal Claims?
03-1566 +++$+++ 4816 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. There's a long history of litigation here. It began with the first suit in 1979. We were in the district court there. There were administrative and constitutional and equitable issues as well, and we were able in that initial case to combine all those forms of relief in the district court. And then, of course, we got this judgment that I began to read from. And from then on, we had four or five other cases all in the district court. We do acknowledge that on the breach of contract, there is concurrent jurisdiction under the Tucker Act.
03-1566 +++$+++ 4817 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is it concurrent? I mean, the -- the statute I'm reading, the one you brought is consent is given to join the United States as a necessary party defendant. Is that what happened here? They were joined as a necessary party defendant?
03-1566 +++$+++ 4818 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we think so, Your Honor.
03-1566 +++$+++ 4819 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They were? I -- I think that's -- isn't that -- what rule of -- I thought there's a -- a Rule of Federal Procedure. I can't remember what -- what's the --
03-1566 +++$+++ 4820 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Rule 19(s)?
03-1566 +++$+++ 4821 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. Is that what they were joined under?
03-1566 +++$+++ 4822 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that procedure was not invoked here.
03-1566 +++$+++ 4823 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. Well, all right. Were they -- there's technical phrase well known in the law to be joined as a necessary party defendant. Given the normal meaning in the law of that technical phrase, is that what happened here?
03-1566 +++$+++ 4824 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. What happened -- what happened --
03-1566 +++$+++ 4825 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, okay. If it did not happen, then how could you possibly sue in that court rather than the Court of Claims where the statute says you can sue on any implied, as well as express, contract?
03-1566 +++$+++ 4826 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the waiver of sovereign immunity statute says in any suit.
03-1566 +++$+++ 4827 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It doesn't mean in any suit in sentence 2 of the kind referred to in sentence 1? Does it mean any suit in the universe? Any suit in the world? Any tort suit? I would have thought that sentence 2 refers to sentence 1.
03-1566 +++$+++ 4828 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it -- it does and that case was litigated against the United States by my clients and -- and we won in the Peck case. And we think that should have ended the matter.
03-1566 +++$+++ 4829 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But don't -- how can we, if we have -- if -- if I read this -- this as meaning technically what it says and it's a jurisdictional matter, how could I do anything other than say, go to the Court of Claims, you're in the wrong court?
03-1566 +++$+++ 4830 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Any suit is also in the first sentence, Your Honor.
03-1566 +++$+++ 4831 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. It says --
03-1566 +++$+++ 4832 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and --
03-1566 +++$+++ 4833 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- in any suit you can join the United States as a necessary party.
03-1566 +++$+++ 4834 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the -- in the sue and be sued cases, this Court construes that very broadly, and this is the same root word and --
03-1566 +++$+++ 4835 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but we don't give broad construction to waivers of sovereign immunity.
03-1566 +++$+++ 4836 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
03-1566 +++$+++ 4837 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Quite the reverse. And it says to join the U.S. as a necessary party defendant in a suit to adjudicate, confirm, validate, or decree the contractual rights of a contracting entity in the United States regarding any contract executed pursuant. Now, I guess the farmers were not technically the contracting entity.
03-1566 +++$+++ 4838 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They were not the signing --
03-1566 +++$+++ 4839 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No.
03-1566 +++$+++ 4840 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- party.
03-1566 +++$+++ 4841 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you've got more problems.
03-1566 +++$+++ 4842 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our -- our argument -- and again, this has been resolved in the lower courts against the Government. But our -- our view is that by the nature of the intended beneficiary doctrine, the duty is owed to the third party, as well as to the promisee, and it's enforceable by the third party, as well as the promisee.
03-1566 +++$+++ 4843 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If you -- if the lower courts were of this view, why did the district court in this case give you three opportunities to have your contract claim transferred to the Claims Court?
03-1566 +++$+++ 4844 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Once the determination was made that we were not intended third party beneficiaries, that was the law of the case, and had it been transferred to the Claims Court, we -- we would have been bound by that determination. We felt we had to bring to a final resolution the -- the intended beneficiary issue before we could proceed in the Claims Court either.
03-1566 +++$+++ 4845 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it does suggest that the district court had at least some concern whether the case -- your claim had been lodged in the right court.
03-1566 +++$+++ 4846 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, although again that -- that court had been hearing these matters for many years in -- in numerous cases without this issue ever having come up.
03-1566 +++$+++ 4847 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but it's a -- see, I want to know what I'm supposed to do. As I read the language, you're out. As I understand the purpose of the statute, it makes sense to me if you're out, and it doesn't make sense to me if you're in. And maybe there's some lower court precedent to the contrary, which I'd certainly read, but is there any Supreme Court precedent to the contrary that supports you?
03-1566 +++$+++ 4848 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Just the -- the language of in any suit definitely is --
03-1566 +++$+++ 4849 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, no. But that isn't the limiting part. The limiting part is in any suit of a certain kind.
03-1566 +++$+++ 4850 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-1566 +++$+++ 4851 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What they give consent to is joinder as a necessary party. And that is not what happened here.
03-1566 +++$+++ 4852 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Only the -- the general principle that language should be read in its ordinary meaning --
03-1566 +++$+++ 4853 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's ordinary meaning, you're out because the ordinary meaning of joinder as a necessary party is you weren't joined as a --
03-1566 +++$+++ 4854 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There -- there at least is no evidence that Congress had rule 19 in mind when it enacted either the '52 statute or the '82 statute that we -- we stand on.
03-1566 +++$+++ 4855 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it's something that I hadn't concentrated on before now, but your position that, well, if you're transferred to the Court -- to the Court of Claims, that you bring with you all of the previous rulings of the United States district court in California and that those are somehow binding because of the law of the case -- what is the authority for that? The -- the court that's transferred has to accept all the rulings that have been made previous to the transfer?
03-1566 +++$+++ 4856 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- our understanding is if, obviously --
03-1566 +++$+++ 4857 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, what's the authority for that?
03-1566 +++$+++ 4858 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I can't cite you authority, Your Honor, but I -- we were very concerned about that. If there was no waiver of sovereign immunity in the first instance, then the lower court's ruling on intended third party beneficiary I would think should be vacated.
03-1566 +++$+++ 4859 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Could I -- I -- I guess I'm not following this. I don't know why, Mr. Smiland, you -- you have not referred to the last sentence of -- of what you assert was the waiver of sovereign immunity, which says any suit pursuant to this section may be brought in any United States district court in the State in which the land involved is situated. Why isn't that what you're relying on?
03-1566 +++$+++ 4860 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is and -- and when I was talking about in any suit --
03-1566 +++$+++ 4861 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How does that help you? Because it says any suit pursuant to this section, and of course, this section starts off by talking about addition of a person as a necessary party. So how does the last sentence help you?
03-1566 +++$+++ 4862 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I -- I --
03-1566 +++$+++ 4863 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it -- it -- if the words, join necessary, limit any suit and the language that Justice Scalia referred to, then -- then maybe we're in trouble. But otherwise --
03-1566 +++$+++ 4864 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I -- I take that to mean that when you sue one defendant and you also sue the United States as a necessary party defendant, that suit -- any -- that would be a suit pursuant to this section. I -- I don't know what other meaning that -- that sentence could have. When you sue two parties, one of whom is the United States, by reason of the fact that it's a necessary party defendant, that suit is a suit pursuant this section and it can be brought in any United States district court in the State in which the land involved is situated. I -- I don't know what -- what other suit that -- that sentence could refer to.
03-1566 +++$+++ 4865 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You -- you agree with that. I -- you're caught in between us here, and I understand. (Laughter.)
03-1566 +++$+++ 4866 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And I guess we have to figure out what is the right meaning of that initial phrase.
03-1566 +++$+++ 4867 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Perhaps you can explain. This was not your suit originally. You intervened. Right? This was started out by the water district.
03-1566 +++$+++ 4868 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The district sued the United States. We intervened.
03-1566 +++$+++ 4869 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And then after some, I think, 2 years --
03-1566 +++$+++ 4870 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-1566 +++$+++ 4871 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the water district bows out. It has settled its case. It's a mystery what it settled for. At least, I didn't see it in any of the briefs. Why did the water district, having brought this case, then say, we're satisfied, we're out?
03-1566 +++$+++ 4872 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The record is very sparse, Your Honor. There is the district's motion which says pretty much what it said in its brief, that there was a -- a thing called the principles between it and the United States and various parties. And as a result of those principles, which are not in the record, although they are a matter of public record, the -- the district in its discretion elected to dismiss the case. We opposed that. We would have hoped the district would have kept going. We lost that opposition. The district was dismissed, and we were allowed to proceed on our own.
03-1566 +++$+++ 4873 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Smiland, can I ask this question? If Justice Breyer is -- the thrust of his question is right, I -- I think the district itself could not have brought the suit under his reading of the sovereign immunity. And I'm just wondering, has the United States ever taken the position that the district could not have initiated this litigation?
03-1566 +++$+++ 4874 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not to my knowledge, Your Honor.
03-1566 +++$+++ 4875 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Could -- could we hear your argument on -- on the sovereign immunity point as opposed to the venue point? What -- on what ground do you say the United States has waived its -- its immunity from suit in this case?
03-1566 +++$+++ 4876 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are two statutes.
03-1566 +++$+++ 4877 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May -- may we just back up to the question -- your answer to Justice Stevens? I thought that this wasn't a suit initially on the part of the water district for money damages. I thought they were seeking declaratory relief against the United States.
03-1566 +++$+++ 4878 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They pled both, Your Honor. Although at that time the water still was available for delivery, it hadn't flowed to the ocean. And the money had not yet been collected and spent. So the focus initially was on equitable relief to stop --
03-1566 +++$+++ 4879 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Because one could -- one could read the words, suit to adjudicate, confirm, validate, or decree the contractual rights, as a suit for declaratory relief but not encompassing damages.
03-1566 +++$+++ 4880 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Both statutes we cite say that judgments can be entered in the same manner, to the same extent as a private individual under like circumstances, language I believe from the Federal Tort Claims Act. Again, both in the 491 F.Supp. decision under the McCarran Act and in the Peck case, the district court held that money damages were encompassed by that. So both statute -- statutes on which we rely have language in it taken from other sources of law, with which this Court is very familiar and has opined on several times. The -- the only unique parts of -- of either of the two statutes that we stand on are -- are the rights. One refers to administering a previously adjudicated right to the use of water, and the other is the contract language we've discussed.
03-1566 +++$+++ 4881 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can you turn to sovereign immunity now?
03-1566 +++$+++ 4882 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-1566 +++$+++ 4883 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And -- and let me make -- make it easy for you. Do you know of any case, other than cases decided by this friendly district judge, in which a suit has been allowed against the United States based on nothing more than the status as a third party beneficiary of a contract to which the United States has -- on which the United States has agreed to be sued? Is -- is there any such case?
03-1566 +++$+++ 4884 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
03-1566 +++$+++ 4885 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And -- and you think it's clear that -- as our sovereign immunity law requires, that such a third party beneficiary can sue the United States?
03-1566 +++$+++ 4886 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For example, in the U.S. v. District Court case decided by this Court in 1971, under the McCarran Act, that fact situation was not before you, but the Court did say that the rights to which the statute referred were all inclusive. It read it broadly.
03-1566 +++$+++ 4887 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I -- I don't understand that. The rights were all inclusive. As -- as I understand the law of third party beneficiaries, it -- it used to be -- and -- and perhaps at the time this statute was enacted still was -- quite -- quite restrictive. It's only in more recent -- I don't agree with the Government's argument that -- that you have to, in an ordinary contract, explicitly refer to the third party beneficiary's rights. But when sovereign immunity is at issue, it's -- it's a different question, it seems to me.
03-1566 +++$+++ 4888 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we have explicit rights here and -- and it would seem to me that if -- if -- and this was certainly the legislative history behind section 221, not -- not behind McCarran. But if -- if the same duty is owed by the promisor to the third party that it owes to the promisee, and if the third party has the same rights of enforcement as it does under 304 of the Restatement that the promisee would have, why should it be any different? Why would Congress have intended to exclude that? And it used the word contract.
03-1566 +++$+++ 4889 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Because -- because we have a rule that says when Congress wants the United States to be sued, it -- it must say so clearly.
03-1566 +++$+++ 4890 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You also have the rule that the word contract means the law of contract and not parts of it.
03-1566 +++$+++ 4891 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But yes, isn't it arguable, though, that in this case the Government probably thought that it would be efficient to have the district represent all the farmers for whatever their -- to the extent their interests were shared with one another, rather than having every individual have the same right to bring -- bring a lawsuit?
03-1566 +++$+++ 4892 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Efficient in -- in collecting land assessments and water charges, but there's no evidence in the -- either the language of the statute, I submit, or the --
03-1566 +++$+++ 4893 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Except for the fact that the district is the party to the contract, though.
03-1566 +++$+++ 4894 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Nothing was said about litigation, let alone intended third party beneficiary --
03-1566 +++$+++ 4895 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but the -- the whole point of the district -- correct if I'm wrong. This is your area. The whole point of the district was to make it easier for the United States to know with whom it was dealing to have an efficient system, and if you say, well, that doesn't include lawsuits for damages, it seems to me that destroys much of the purpose of the formation of the district.
03-1566 +++$+++ 4896 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's a lot of legislative history there, and it talks a great deal, as you say, Your Honor, about efficiency and -- and the convenience. But it's not talking at all about litigation, about remedies, about rights once there's a breach.
03-1566 +++$+++ 4897 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you haven't really achieved very much efficiency if you simply get the United States out of the business of collecting the payments and of keeping track of the payments but leave the United States subject to suit when the person who has authority to do -- do these things goofs. I mean, what -- what trouble has the United States saved itself? It would still have to ride herd over -- over the person with -- with whom it's dealing.
03-1566 +++$+++ 4898 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it -- this is a transaction between a water seller and many water buyers. Yes, in 1926 districts were put in the middle, but it's also true in 1939 in -- in the section 9(e), Congress authorized the particular type of contracts we have here, so-called water service contracts, and it doesn't mention district. And as a matter of fact, the Ninth Circuit has held that the bureau had the discretion administratively to deal with individuals. So throughout the history of the reclamation program, you -- you have the -- the core transaction is -- is a water sale from the Government to -- to farmers. And that's was the case on day one in 1902 and it still is. And I'd just like to remind the Court that paragraph 3 of the stipulated judgment at page 110 of the joint appendix is in our view dispositive here. This was a -- an agreement by the United States and the district, approved by a court after formal settlement notice was dispatched to two formal classes, and it says, any appropriate relief may be obtained against the Federal parties by the filing of a new action for violation of any contract arising independently of this judgment.
03-1566 +++$+++ 4899 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the -- the Justice Department has no authority to -- to consent to suit which -- which Congress has not consented to. I don't see how this strengthens your case.
03-1566 +++$+++ 4900 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Again, if -- if this Court should hold that neither of the two statutes on -- on which we stand waive sovereign immunity, and --
03-1566 +++$+++ 4901 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And this alone wouldn't -- wouldn't remedy the --
03-1566 +++$+++ 4902 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Then -- then --
03-1566 +++$+++ 4903 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the absence --
03-1566 +++$+++ 4904 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the decision that we're not intended beneficiaries should be vacated and we should have a chance to go to the court -- Claims Court. I'd like to reserve, Your Honor, 3 minutes, if I may.
03-1566 +++$+++ 4905 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You may, indeed, Mr. Smiland. Mr. Minear, I think you're up next.
03-1566 +++$+++ 4907 +++$+++ FALSE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: Petitioners cannot maintain this suit for breach of the Westlands contract because the Westlands contract is itself subject to the rules of sovereign immunity. And section 390uu authorizes only a limited waiver of sovereign immunity. It does not authorize suits by incidental beneficiaries for money damages. For many of the points that have already been raised by Justice Breyer, Justice Kennedy --
03-1566 +++$+++ 4908 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Minear, do you think it does waive sovereign immunity for suits brought by the district?
03-1566 +++$+++ 4909 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In one circumstance, Your Honor. This suit allows a district that has been sued by individual water users to join the United States in the ongoing suit and, in fact, remove the case to Federal court if necessary, so there can be a determination of all the rights in those --
03-1566 +++$+++ 4910 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Did this suit begin as a suit by a water user against the district and then you were joined later? Is that --
03-1566 +++$+++ 4911 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it did not, but that did occur in the Barcellos & Wolfsen litigation that ran between 1978 and 1980.
03-1566 +++$+++ 4912 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, in this suit, did not the district bring it against the United States?
03-1566 +++$+++ 4913 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
03-1566 +++$+++ 4914 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And was that a -- was that jurisdiction proper at that time?
03-1566 +++$+++ 4915 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That suit was brought under the APA, and the district brought the suit on that basis.
03-1566 +++$+++ 4916 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But was it properly brought is what I'm asking you.
03-1566 +++$+++ 4917 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That suit was properly brought.
03-1566 +++$+++ 4918 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
03-1566 +++$+++ 4919 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But it was not brought under 390uu. Instead, there was an allegation that the United States had acted unlawfully and the Westlands relied on the Administrative Procedure Act.
03-1566 +++$+++ 4920 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And no money damages.
03-1566 +++$+++ 4921 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And no money damages as well, and that's what distinguishes this case.
03-1566 +++$+++ 4922 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So that -- so your view -- I mean, what -- what makes sense to me is that the section means what it says, that consent is given to join the United States. That means join them in an ongoing suit. And it makes sense because what the United States wants is anyone who sues them for money damages goes to the Court of Claims. But of course, where you have an ongoing suit between two other people, we'll make an exception because there it's already in another district and we'll let you bring the United States in as a necessary party. The other exception is when you don't sue for money damages. That's in section 702 of the APA. Now, that to me makes a lot of sense and it's consistent with the language. Is that your view or do you have a different view?
03-1566 +++$+++ 4923 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, that is our view, and let me supplement your comments in this regard. Section --
03-1566 +++$+++ 4924 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I -- may I -- has that always been your view throughout? (Laughter.)
03-1566 +++$+++ 4925 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It has been our view under 390uu when section 390uu has been -- has been raised.
03-1566 +++$+++ 4926 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But throughout the litigation?
03-1566 +++$+++ 4927 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Throughout this litigation? I can't -- I can't be sure that we've maintained a consistent position, but ultimately this is a question of sovereign immunity. So the importance is that we get the issue right here.
03-1566 +++$+++ 4928 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There has to be an ongoing suit. You think this section does -- does not permit somebody to initiate suit against one party and at the same time against the United States as a necessary party.
03-1566 +++$+++ 4929 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, let me explain why that's the case, and there was an answer --
03-1566 +++$+++ 4930 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why what is the case?
03-1566 +++$+++ 4931 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Why there's a necessity for an ongoing suit.
03-1566 +++$+++ 4932 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You -- that is to say, there's a suit between only two individuals and then the United States is brought in.
03-1566 +++$+++ 4933 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, this -- this provision was enacted in response to a specific problem that's illustrated by the Barcellos & Wolfsen litigation. Individual farmers sued an irrigation district. The irrigation district was concerned that it might be subject to inconsistent liability to the farmers on the one hand and the Federal Government on the other, and it sought to join the United States. There was no mechanism in 1978 for that type of suit. Congress acted --
03-1566 +++$+++ 4934 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I understand that. That's one situation that this provision could cover, but there are other situations that this provision could -- could cover. Let's say a farmer wants to bring suit against the district, but it doesn't really know whether the fault is with the district or whether the district was -- was compelled to do what it did by the United States. So it sues the district and just in case the United States was -- was responsible, it joins the United States. Why doesn't the language entirely permit that kind of a suit?
03-1566 +++$+++ 4935 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The language could be construed to allow that, but -- but waivers of sovereign immunity are construed narrowly, and the language I think is more properly construed, as Justice Breyer has suggested, to allow joinder as a necessary party. And in fact, it was enacted in specific reaction to that problem in the Barcellos & Wolfsen litigation where we did have ongoing litigation and there was a sense by the irrigation district they needed to join the United States so they would not be subject to inconsistent suits. So although I think that the language can bear the -- the interpretation that you're suggesting, Justice Scalia, nevertheless, I think the better interpretation is the more narrow one that is --
03-1566 +++$+++ 4936 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Then -- then how do you explain the last -- the last sentence of that provision, which is any suit pursuant to this section? The only suit that the section refers to is a suit in which the United States is joined as a necessary party defendant. That's the subject of the section.
03-1566 +++$+++ 4937 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, and --
03-1566 +++$+++ 4938 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And -- and the last sentence says, any suit pursuant to this section may be brought in any United States district court. And I read that to mean if you want to sue the United States as a necessary party initiating a suit, you can bring it in -- in any district court in which the land involved is.
03-1566 +++$+++ 4939 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we read that as allowing removal in those circumstances when the United States is joined later. In any event, I have to say that with regard to -- to this disagreement, it does -- it's not dispositive or even affect the case here. The fact is that this waiver of sovereign immunity under no circumstances would allow this suit to go forward. Apart from the money damages aspect, which itself is -- is -- would preclude this type of suit, these parties are not intended beneficiaries, and without being intended beneficiaries, there's -- in no circumstances could they ever evoke these provisions.
03-1566 +++$+++ 4940 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Minear, when you say -- when you say not money damages, do you read the words that I read to Mr. Smiland restrictively or do you think they accommodate money damages, that is, suit to adjudicate, confirm, validate, or decree the contractual rights of a contracting entity?
03-1566 +++$+++ 4941 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We think that under your cases, such as Pena v. Lane, there needs to be a specific reference to money damages. This simply is referencing declaratory relief, and so we do not believe it would allow an award of money damages. Rather, the party must go to the Claims Court if they're seeking money damages. And in fact, the waiver of sovereign immunity there is somewhat broader. It does, as mentioned before, allow implied or express contracts. So this suit is simply in the wrong court. But I would like to --
03-1566 +++$+++ 4942 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So money damages -- waiver always used the word money damages. When it says adjudicate the rights under the contract, that doesn't include money damages?
03-1566 +++$+++ 4943 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I do not think in this context it would. I think there needs to be something more specific. We're really talking about declaring rights here and not providing a specific remedy. And this Court has always taken the view that the Claims Court jurisdiction is the appropriate forum for deciding money damages.
03-1566 +++$+++ 4944 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What about the second sentence?The United States, when a party, shall be deemed to have waived any right to plead that it is not amenable thereto by reason of its sovereignty and shall be subject to judgments, orders, and decrees of the court having jurisdiction and may obtain review thereof in the same manner and to the same extent? It's subject to the judgments, orders, and decrees of the court to the same extent as a private individual under like circumstances. Why isn't that enough to -- to say that the court can -- can award damages?
03-1566 +++$+++ 4945 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think that simply refers back to the previous sentence, which refers to adjudicate, confirm, validate, or decree. Now, if you interpret that to include money damages, then the second sentence would follow, but I -- I think the two have to be construed together. And in our view simply allowing a party to adjudicate, confirm, validate, or decree in these circumstances would not allow award of money damages. Certainly I think Congress would be much clearer.
03-1566 +++$+++ 4946 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but if contractual rights include a right to be paid for something, why wouldn't you get a money judgment in a case like that? That first sentence certainly covers the possibility of a contractual right to be paid something.
03-1566 +++$+++ 4947 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, again, waivers of sovereign immunity are construed narrowly. Now, let's --
03-1566 +++$+++ 4948 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's pretty clear language.
03-1566 +++$+++ 4949 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I have to say that the language -- you're saying that the language -- yes, could it conceivably be -- be interpreted in -- on -- that broadly. But that's not --
03-1566 +++$+++ 4950 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Certainly if it were not a -- a United States and were a private individual, it would include money damages.
03-1566 +++$+++ 4951 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That might well be, but this is --
03-1566 +++$+++ 4952 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And -- and the next sentence, as Justice Scalia points out, says the United States shall be treated just like a private party.
03-1566 +++$+++ 4953 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. But Your Honor, ultimately I think that we have to focus on that this is a waiver of sovereign immunity. And -- and so far we have not touched on the question of whether these parties --
03-1566 +++$+++ 4954 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I think you've got a very strong argument when you talk about an incidental third party beneficiary not being a contracting party, but now you're asking for a much broader holding than really necessary to dispose of this case, it seems to me.
03-1566 +++$+++ 4955 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think I started with that point, that an incidental beneficiary cannot invoke this -- this provision. And I'd like to -- to continue with that point because the party here is merely an incidental beneficiary and not an intended beneficiary. Under any of the -- the tests that have been applied for third party beneficiaries, the party here would not qualify as an intended beneficiary. Most importantly, the contracting parties here, the United States and Westlands, expressed no intent to give this party enforcement rights. What's more, the contract does not provide that performance would be rendered to -- to the petitioners in this case. The contract is quite clear that performance is rendered to Westlands. This is a contract in which the United States furnishes a specified amount of water to Westlands and Westlands pays money for it. Westlands then has a separate obligation with regard to the farmers.
03-1566 +++$+++ 4956 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Separate from -- where does that -- that obligation come from?
03-1566 +++$+++ 4957 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That arises from the regulations that the Westlands Water District has enacted that provides for the delivery of water from Westlands to the individual farmers. The United States' obligation --
03-1566 +++$+++ 4958 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's a State -- a State created obligation?
03-1566 +++$+++ 4959 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. That is -- and Westlands has the -- has the option of either engaging in contracts with the individual farmers or distributing the water through regulation, and it has opted for regulations. Now, Westlands itself is a governmental unit. It is comprised of the -- of the very farmers here, among others, who have brought this suit. And it has the authority to act in a representative capacity on behalf of all its members. And that is why the United States enters into contracts with irrigation districts precisely because it allows them to reach accord and agreement and to resolve their disputes. Now, the fact is that the United States and Westlands agree on a great many things. Sometimes they disagree, but when we disagree, we're able to -- to speak to one another as two governments representing constituencies and hammer out our differences. And that would be impossible if these types of third party beneficiary suits were allowed. And I think that goes to the crux of what the United States' real concern here is. When there are contracts between one government and another, just as in the context of treaties or compacts among the States, it's vital that the two governmental units be able to deal with one another as governments and to be assured that if they can reach accord on behalf of their representatives -- on behalf of the parties they represent, that that will resolve the issue. If it were otherwise, this type of distribution of water --
03-1566 +++$+++ 4960 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, you don't take the position, do you, that Westlands could have agreed with the United States that it wouldn't enforce its new laws that deprived the farmers of water? You don't take that position.
03-1566 +++$+++ 4961 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But let's look at what would happen, Your Honor, if that did happen. The individual farmers would sue Westlands, claiming that Westlands was not living up to its contract obligations. Westlands would invoke 390uu and join the United States in that suit. And the question of the legal rights would be determined on that basis. So the mechanism that -- that we've specified and the way that we interpret it deals precisely with the problem that you've -- you've addressed.
03-1566 +++$+++ 4962 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but you can't -- the -- presumably the Federal Government can't negotiate away the Endangered Species Act or something. The fact is that new laws were passed after these contracts were entered into with Westlands. Isn't that right?
03-1566 +++$+++ 4963 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. And again, I think it's instructive to see what happened in this case. When those laws were enacted, the United States reacted to those. Westlands brought a suit under the APA challenging the interpretation of the statutes. Westlands was entitled to do that under the APA. The United States and Westlands reached an accord, together with the environmental intervenors in this group, that was satisfactory to those parties. And it simply would be very disruptive of the system if a minority of farmers in the Westlands District could then bring a suit and upset that agreement and that accord that had been reached. Finally, I'd like to make a brief --
03-1566 +++$+++ 4964 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can the district get damages from the Government?
03-1566 +++$+++ 4965 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Technically yes, but their damages are limited by the terms of the contract. Westlands could sue the United States in Claims Court for a breach of the contract, but the contract itself says that any damages that are -- that the sole liability of the United States in these circumstances would be an adjustment of the account. In other words, there are not consequential damages. Rather, if we do not provide Westlands with the water that Westlands believes it's entitled to, then we stand liable for an adjustment in the payments that Westlands would make to us. The suit that is being brought here is asking for consequential damages, and we believe that the contract here does not allow consequential damages. That, of course, is a merits question that there's no need for the Court to reach, but that is the way it would be resolved in Claims Court in -- in our view. I'd like to also raise the question of property rights since that has -- has come up, that one of the arguments that has been made by Westlands is that they're entitled to status of a third party beneficiary because they claim they have water rights in these circumstances. The fact is that the United States, the State of California, and Westlands, as well as the California Water Resources Board and the first tier of California courts, have all concluded they do not have the -- the water rights that they claim. But in any event, our view is that that issue is irrelevant to the inquiry here. Rather, the question of third party beneficiary status turns on the intent of the contracting parties. Did they or did they not intend to give enforceable rights to the third party? Here there's not a shred of evidence that that was an intent -- there was an intent to create enforceable rights in that third party. Quite to the contrary. The only reference of third parties, the farmers, in the contract here is directed to limitations on what the district can do once it receives its water. It doesn't create rights in them -- the individual farmers. Quite to the contrary. What it does it restricts the ability of the district in order to protect the United States' interests, to make sure the United States will be paid for the water that it ultimately provides to the district. The central point that I would like to leave you with, though, here at the end is the importance of protecting the relationship between the United States and Westlands. But although we disagree on some matters, we are able to reach accommodation and agreement, and when we're able to do that, it's to the good of all concerned. The contracts and the laws here are structured to allow those types of agreements to be reached, and we think that allowing third party beneficiary suits would be very disruptive of that -- that operation.
03-1566 +++$+++ 4966 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Minear. Mr. Somach, will you tell us what the district's views on this whole matter are?
03-1566 +++$+++ 4968 +++$+++ FALSE +++$+++ MR. SOMACH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. Justice Stevens, and may it please the Court: Westlands Water District has argued in its brief that petitioners are not intended third party beneficiaries with enforceable rights under the 1963 contract. I want to make two points from the perspective of the district why this must be so. First, allowing a direct right of action by petitioners is not practical or consistent with the district's need and ability to function as a governmental entity and to allocate all of the water that it receives under contract to all of the landowners within the -- the district. This is a scarce and valuable resource, and these types of third party lawsuits jeopardize the district's ability to be able to provide water pursuant to California Water Code provisions to all of the landowners within the district. Second, the laws of the State of California and reclamation law, working in harmony one with the other --
03-1566 +++$+++ 4969 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Excuse me. Could you expand on the first point a little bit? I mean, you say you don't want to be bothered with lawsuits. Is -- is that -- is that all that it amounts to?
03-1566 +++$+++ 4970 +++$+++ TRUE +++$+++ MR. SOMACH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I -- I think quite on the contrary. You know, and unfortunately, the -- the history of this contract and these -- these issues has been anything other than the district avoiding litigation. The -- the whole concept of a water district is not to individualize or incrementalize the water and interests in water in any one group of landowners or any one landowner. The idea is that the rights of all of the landowners to all of the water under the contract are to be treated as a whole and allow the district to provide protection to all of the landowners within the district as a whole, the point there being that the water doesn't belong to any one landowner or a group of landowners. It belongs to the whole. And in fact, the way the district operates, the way it has to operate is in the context of the whole. Bonds are issued. Encumbrances on lands are -- are incurred, all based upon not individual rights to water but rather broad rights of water throughout the district. To allow a small group of landowners to decide how to administer the contract, how to enforce the contract in any one given situation leaves decisions that are critical to all of the landowners solely in the hands of an unaccountable small group of -- of landowners.
03-1566 +++$+++ 4971 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can't -- can't such a suit be brought in State court? I can't believe that this district can do whatever it wants with the water.
03-1566 +++$+++ 4972 +++$+++ TRUE +++$+++ MR. SOMACH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, absolutely not. Yes, it -- yes, it can.
03-1566 +++$+++ 4973 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Really?
03-1566 +++$+++ 4974 +++$+++ TRUE +++$+++ MR. SOMACH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. What I meant to say was yes, you are right.
03-1566 +++$+++ 4975 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
03-1566 +++$+++ 4976 +++$+++ TRUE +++$+++ MR. SOMACH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And absolutely not. It can't do just anything it wants to do. It is subject, as a governmental entity, to all the strict requirements of California water law and governmental law, for that matter. If, for example, these petitioners decide for whatever reason they don't like a decision of the -- of the board -- and in fact, that is an example that exists emanating out of the facts of this case. When the district decided that it was better to settle the litigation, these landowners first petitioned the -- the governing of the -- of the district and sought to -- to have them not proceed in that manner, the way any other group of citizens or constituents with any other governmental entity would have proceeded. The district decided, however, that it was in the best interests of all of the landowners within the district to settle the litigation. Now, at that point in time certainly, these petitioners had the normal and ordinary rights that any -- any constituent within the district has to be able to challenge a decision that has been made by the district. That includes, for example, writ proceedings, to argue that the decision of the board was arbitrary, capricious, otherwise unlawful, and that it should -- should be mandated to -- to proceed in some other fashion. If the issue were damages, this district is subject, like any other governmental entity within the State of California, to the government Tort Claims Act if -- if they're tortious type damages. And if we have arguable impairment of property rights, this district is subject to the California constitution, the United States Constitution, and the government code provisions that provide for litigation with respect to those broader types of -- of damages. And quite frankly, this is a governmental body and it is very susceptible to the political process. It is not an easy thing for -- for the district to be standing up here and telling you that its landowners aren't entitled to receive what they want. That's a very difficult for the district to -- to do. But in dealing with the rights of the entire district, it's an absolute essential thing to do. If these landowners had exercised their prerogatives under California law, they could have, assuming they were the majority, controlled the decisions of the board of directors in the way that any majority constituency controls the director -- the -- the direction and the decisions of a -- of a governing board. You know, this -- this lawsuit is instructive in -- in a number of ways in terms of these practical concerns that we have in terms of how in the world are we going to be able to administer a contract like this one. How are we going to do all of the things that the Water Code has told us that we have to do if, at any given time, a landowner, a small group of landowners is able to go into Federal district court and independently decide that it wants to administer the contract that the district has with the United States or to enforce terms of the contract that it has with the United States in a manner that's inconsistent or different than the way --
03-1566 +++$+++ 4977 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't really understand why that's any greater burden than the fact they can sue you in State court anyway. They -- they can always bring litigation.
03-1566 +++$+++ 4978 +++$+++ TRUE +++$+++ MR. SOMACH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it -- it really requires the district to, in a sense, race to the courthouse with the -- with the petitioners in order to be there first in order to have its views of the contract --
03-1566 +++$+++ 4979 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, the suit in State court, I assume, would -- would only be -- the claim would be that you were acting arbitrarily, and so long as your interpretation of the contract was a reasonable one, the suit would fail.
03-1566 +++$+++ 4980 +++$+++ TRUE +++$+++ MR. SOMACH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1566 +++$+++ 4981 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Whereas, this suit here -- it doesn't matter how reasonable it is. If it's wrong, it's wrong. I mean, it's quite a different --
03-1566 +++$+++ 4982 +++$+++ TRUE +++$+++ MR. SOMACH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I think it is a different situation, and I agree with what you -- what you have said, Your Honor. I do, however, want to -- to not avoid the concern that may be expressed here, and -- and that is, that -- that what it does is it -- it forces the district into a situation of chasing its landowners, in essence, around from one litigation forum to another in order to ensure that its means of controlling and -- and administering the contract is not jeopardized. The fact that the landowners -- if the landowners can move forward independently with litigation with respect to the contract, what it really does is create in a sense a -- the contract becomes this very interesting moving target where the district has its views about what the contract is and how it should be administered, how it should be enforced, and then it proceeds in one direction as, for example, it did with the settlement in this litigation, deciding that that was the best way to protect the interests of the district. Had these petitioners on the merits in a hypothetical situation prevailed with a totally different result, that would have substantially affected and impacted the district's ability to be able to maintain the obligations and the commitments that it made to the other settling parties. That destabilizes the ability of the district to actually act in other governmental forums, in forums with the United States, with the State of California, with other districts in the context of attempting to say we control the contract, we enforce its terms, and we can make commitments. And when we make those commitments, we can abide by and we can live up to those commitments in a way that -- that governments ought to be able to do when they're -- when they're making those types of commitments. Having the landowners being able to come or -- and here, I want to make certain. When I use the word landowners, I'm not saying that the landowners are not beneficiaries of the contract. They certainly are.
03-1566 +++$+++ 4983 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What about the provision in the judgment at page 110 that was -- that was cited to us, that -- that the parties may obtain other appropriate relief by the filing of a new action?
03-1566 +++$+++ 4984 +++$+++ TRUE +++$+++ MR. SOMACH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I -- I think that that -- that phrase is actually begun as a proviso, and I view it as not limiting the ability of the area I landowners in the Barcellos & Wolfsen judgment that you're -- that you're quoting from from being able to act in any other way. It was a non-limiting provision. The -- the first part of the -- the part that you read deals with what their rights to enforce were. The second part was a proviso that simply said notwithstanding this, whatever else you're able to do, you may do. Thank you for your time.
03-1566 +++$+++ 4985 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Somach. Mr. Smiland, you have 9 minutes remaining, but you do not have to use it all.
03-1566 +++$+++ 4987 +++$+++ FALSE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. What happened here is that the United States sold half the water it was obligated to sell under the contract. It doubled the price it was permitted to charge on the other half. It was a massive harm to the farmers. I'm sure you understand.
03-1566 +++$+++ 4988 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you say under the contract. I thought there was a provision in the contract that said that the United States will not be responsible for under-deliveries, and I think it listed the drought and the last thing was any other cause.
03-1566 +++$+++ 4989 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's what we were about to go to trial on, Your Honor. That's a merits issue. The Ninth Circuit has abstained on whether there was a mandatory statutory duty to cut off this water, and I urge the Court not to -- to dive into that pool. We're trying to get in the courthouse doors.
03-1566 +++$+++ 4990 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you were saying there's -- there's a right under this contract to recover from the United States for an under-delivery.
03-1566 +++$+++ 4991 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We have massive cross summary judgment motions on that issue and we were entitled to go to trial on that -- on our claim of liability.
03-1566 +++$+++ 4992 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What --
03-1566 +++$+++ 4993 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If --
03-1566 +++$+++ 4994 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, please.
03-1566 +++$+++ 4995 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. I've asked a lot of questions. Go on.
03-1566 +++$+++ 4996 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What do you make -- excuse me. What do you make of the argument for reasonable construction of the contract that in fact you just simply cannot have a system that would promise the chaos that -- that you are promising?
03-1566 +++$+++ 4997 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I don't make much of it. The parties here and -- and the parties in the West fully understood for 20 years, after Allen Orchards, that the farmers were intended third party beneficiaries. That's -- we settled in 1986 with that understanding, and this parade of horribles just has not come to pass.
03-1566 +++$+++ 4998 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is -- is it correct, as Justice Scalia suggested earlier, that so far as State litigation is concerned, it would be limited simply to arbitrary, unreasonable behavior?
03-1566 +++$+++ 4999 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true. And even more fundamentally, the United States breached the contract. The district didn't do anything wrong. Why would we sue the district when the United States cut off the water and doubled the charge?
03-1566 +++$+++ 5000 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I think it's arbitrary not to -- not to -- for an agency, of which you're -- you're in some sense at least the beneficiary, not to insist upon its contract rights, just as a shareholder can insist that the -- that a corporation enforce its contracts.
03-1566 +++$+++ 5001 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We had a little mini-trial on that in front of the -- in front of the district court, and -- and I made that argument, Your Honor, and the district court rejected it.
03-1566 +++$+++ 5002 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, he was wrong. That was -- (Laughter.)
03-1566 +++$+++ 5003 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree.
03-1566 +++$+++ 5004 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I guess the reason that you would sue the district would be if you didn't have any enforceable promise from the United States that they didn't -- wouldn't do it.
03-1566 +++$+++ 5005 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we -- we --
03-1566 +++$+++ 5006 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now, you think you do. That's the issue in the case.
03-1566 +++$+++ 5007 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We had a stipulated judgment.
03-1566 +++$+++ 5008 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And so therefore -- therefore, I'm looking for where that promise is. And you started out by citing a page, which wasn't a page of the contract. It was a page of some kind of settlement, and that page said that the district agrees that they entered into the contract with helping the farmers in mind. I'm sure they did. So what. I mean, I might buy a house with the idea of helping of my child. I'm going to give it to him. That doesn't mean he can enforce the contract.
03-1566 +++$+++ 5009 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ German Alliance, Your Honor.
03-1566 +++$+++ 5010 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You mean my child can enforce a contract I enter into with another -- I buy a house and I say I intend to give it to my daughter.
03-1566 +++$+++ 5011 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the contract --
03-1566 +++$+++ 5012 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And then she can enforce the contract?
03-1566 +++$+++ 5013 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the contract says --
03-1566 +++$+++ 5014 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. If the contract says. Now, that's why I was interested that you didn't cite language in the contract.
03-1566 +++$+++ 5015 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, yes, we did, Your Honor.
03-1566 +++$+++ 5016 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You -- well, I mean, you started out by referring me to page 110 or 111 --
03-1566 +++$+++ 5017 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true.
03-1566 +++$+++ 5018 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- which doesn't. Now, what is the language in the contract --
03-1566 +++$+++ 5019 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Articles --
03-1566 +++$+++ 5020 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that helps you the most?
03-1566 +++$+++ 5021 +++$+++ TRUE +++$+++ MR. SMILAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- 15 and 29(b) of the '63 contract and also the 1965 contract explicitly refers to benefit, and probably most dramatically, the recordable contracts that were signed actually with my clients and the United States said that they were made in consideration of the direct and indirect benefits that those farmers would gain from the 1963 contract. Now, paragraph 4.2 in the judgment, which came some years later, reconfirmed that. What was new and different about the judgment is that for the first time it made explicit -- we think it was implied earlier, but explicit that there was enforceable rights in the farmers, and we've argued it under your German Alliance test that's not required, but if it was required, we bargained for, we got it. The -- the court approved that and the Congress approved that. And I -- I -- personally I've looked at all of these cases in recent months. It's very rare for an intended beneficiary to have language like that. In any case, as I was saying, my clients have suffered massive losses. They've been litigating these claims for 25 years. Everyone has assumed there was waiver of sovereign landowner. Everyone assumed they're intended beneficiaries. And we think we should have a forum and a remedy and a right to our day in court.
03-1566 +++$+++ 5022 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Smiland. The case is taken under advisement.
03-1601 +++$+++ 5026 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll now hear argument in the City of Rancho Palos Verdes against Abrams. Mr. Lamken.
03-1601 +++$+++ 5028 +++$+++ FALSE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens. May it please the Court: This case concerns whether Congress, in enacting section 332(c)(7) of the Communications Act, intended to expose local governments and State and local officials to expansive section 1983 liability with the tens of thousands of wireless antenna zoning decisions they must make each year. Entitled preservation of local zoning authority, section 332 provides for State and local agencies in the first instance to implement specific Federal substantive and procedural requirements, together with preserved State zoning laws, in passing on applications to build or modify wireless towers. It then provides a highly distinctive, independent cause of action for accelerated judicial review of the decisions, including a short limitations period and mandatory expedition. That tailored process is sufficiently comprehensive to evidence Congress' intent for enforcement to occur --
03-1601 +++$+++ 5029 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, Mr. Lamken, it's not as comprehensive as other schemes where the Court said, on that basis, we would not find a section 1983 cause of action, is it? I mean, it's -- it's more spare.
03-1601 +++$+++ 5030 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it is unusual in its unique focus on private enforcement, but there was a reason for the focus on private enforcement. In other provisions of the Communications Act, the Congress chose -- for example, section 253, Congress chose to eliminate enforcement at -- at the FCC level because it was concerned that State and local governments often wouldn't have enough -- excuse me -- local governments in particular --
03-1601 +++$+++ 5031 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what -- what --
03-1601 +++$+++ 5032 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- wouldn't be able to -- I'm sorry.
03-1601 +++$+++ 5033 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What would you think of a case where the plaintiff alleges that the antenna zoning was the -- was caused by racial discrimination against the applicant? Would there be a 1983 cause of action, do you suppose?
03-1601 +++$+++ 5034 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. That would still be available because the -- the section 332(c)(7)(B)(v) only provides for a cause of action for violations of the Communications Act. Violations of the Constitution continue to be enforceable directly under section 1983. Section -- section 332(c)(7)(B)(v) is comprehensive in the relevant sense in that for every violation of section 332(c)(7), for every person adversely aggrieved, it provides a mechanism for private judicial enforcement. In addition --
03-1601 +++$+++ 5035 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what about -- it -- it -- section 332 speaks of an award of all appropriate relief. What does that include? Could it include punitive damages? Could it include attorney's fees, do you think?
03-1601 +++$+++ 5036 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In that respect, it is indistinguishable -- for example, the statute that was at issue in Smith v. Robinson, and it doesn't specify the precise forms of relief available. In our view in this case, appropriate relief would mean specific relief, the type of relief that is traditionally given on review of zoning decisions and on review of judicial review of agency action. That's supported by a number of considerations. I should point out, in the first instance, that in this case respondent never did seek damages, or punitive damages for that matter, under section 332(c)(7)(B)(v) itself. But that's supported by a number of considerations. First is the structure of the act, which presents it as a form of judicial review of agency action. The act is structured much as you have -- much as you would when a Federal agency enforces or implements Federal requirements and are subject to judicial review. The only difference is that Congress swapped in, effectively, State and local agencies with the initial implementers in place of the Federal Government. In that respect, it shares some of the characteristics of sections 251 and 252 of the Communications Act which are also implemented by local -- by -- excuse me -- by State governments as opposed to the FCC.
03-1601 +++$+++ 5037 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. -- Mr. Lamken, the argument has been made that 4 years before the telecommunications act we're talking about was adopted, Congress adopted the Cable TV Consumer Protection Act. And in that act, it specifically limited the remedies to declaratory and injunctive relief. Here we face silence. Isn't that an indication that when Congress wants to limit relief to declaratory and injunctive, it will say so in the -- in the measure?
03-1601 +++$+++ 5038 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, that -- that's an example where Congress, for a broad range of statutes that could be potentially used to enforce the Cable Act, chose to restrict the forms of relief available. And it is an example, in the words of Sea Clammers, where Congress has made its intent explicit in the text of the statute. Congress can also by implication limit the forms of -- excuse me -- limit the mechanism for relief that's available, and that's our position here, that Congress by providing --
03-1601 +++$+++ 5039 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's the -- what's the source of the implication?
03-1601 +++$+++ 5040 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Pardon?
03-1601 +++$+++ 5041 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You say by implication.
03-1601 +++$+++ 5042 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The implication -- Congress has provided a specific mechanism for judicial relief here, section 332(c)(7)(B)(v) itself, and that is a highly adapted mechanism which includes unique characteristics such as a very short limitations period.
03-1601 +++$+++ 5043 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so the -- the implication, I -- I guess, is that unless it specifically provides for damages, it implicitly does not.
03-1601 +++$+++ 5044 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry. In terms of Congress making damages available under 332(c)(7)(B)(v), our view of the damage -- mind you damages are only one of the differences we think that exists here, but our view is supported by a number of considerations, in addition to the structure of the statute. For example, appropriate relief is often -- is the traditional form of relief available. In this context traditional relief was always specific relief. Congress also included a specific savings clause that extends not merely to Federal statutes, but prohibits the impairment --
03-1601 +++$+++ 5045 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Excuse me. Where -- where are you getting the term, appropriate relief, from?
03-1601 +++$+++ 5046 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This -- that comes from this Court's decision in Franklin, that where Congress doesn't specifically identify the specific forms of relief available --
03-1601 +++$+++ 5047 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. But that's -- that's not in the -- that's not in the text of this statute, is it?
03-1601 +++$+++ 5048 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it isn't. It is an inference the Court draws from silence. When the Court -- when Congress provides an express cause of action and does not identify the specific forms of relief available, the Court will infer that Congress intended to provide all appropriate relief. But the term, appropriate relief, is that relief which Congress would have intended, and when the Court is determining that, it takes a look at what the traditional forms of relief are and it will look at things such as the savings clause in 601(c), which expressly says that the statute should not be read, unless it expressly provides, to supersede, impair, or otherwise modify State and local law, as well as Federal law. And in order to put damages into the statute, if it doesn't provide damages expressly, one would have to impair myriad municipal immunity laws that otherwise protect municipalities and State and local officers implementing zoning requirements from liability. Finally, the FCC has --
03-1601 +++$+++ 5049 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and 1983 is not subject to that limitation.
03-1601 +++$+++ 5050 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, 1983 is expressly preemptive under this Court's decisions, and it is -- it would preempt the State laws by its own force. But we believe that that also supports Congress' decision not to provide -- or supports the conclusion that Congress did not intend to provide section 1983 relief here because the effect of making the Communications Act enforceable under section 1983 would be to expand the categories of claims for which -- that -- those immunities are unavailable, and it would thereby impair those immunities.
03-1601 +++$+++ 5051 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But are they only immune from damages action or are they immune from suit?
03-1601 +++$+++ 5052 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. They're generally immunities -- immune from damages actions, not from suits.
03-1601 +++$+++ 5053 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, I mean, that proves too much because they -- the statute obviously intends to eliminate that immunity. The immunity from suit is -- is clearly --
03-1601 +++$+++ 5054 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, I think -- I think you may have misunderstood. The immunity is not from suit. It's an immunity from damages and the impairment would be the immunity from damages. Section 332 is not designed to impair the municipal immunity statutes, and they are not immunities from suit. They are generally from damage liability. The officers are subject to suit because these are subject --
03-1601 +++$+++ 5055 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it allows suit against either municipalities or States, State or local governments. Right?
03-1601 +++$+++ 5056 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-1601 +++$+++ 5057 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the States have immunity not just from damages but from suit.
03-1601 +++$+++ 5058 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As a constitutional matter, they have an immunity from suit, but --
03-1601 +++$+++ 5059 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Unless they have chosen to waive it, which --
03-1601 +++$+++ 5060 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
03-1601 +++$+++ 5061 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- one must assume in this area they haven't.
03-1601 +++$+++ 5062 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
03-1601 +++$+++ 5063 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you have to regard this provision as intentionally overriding some provisions of State law in -- inasmuch as they apply to -- to immunity.
03-1601 +++$+++ 5064 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first of all, I don't think it would be read to -- to override the State's constitutional immunity to suit.
03-1601 +++$+++ 5065 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. That's --
03-1601 +++$+++ 5066 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it would be read to -- it would be read to override immunities to suit that exist under State law because otherwise it couldn't be affected.
03-1601 +++$+++ 5067 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In for a penny, in for a pound.
03-1601 +++$+++ 5068 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
03-1601 +++$+++ 5069 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If they've -- if they've waived --
03-1601 +++$+++ 5070 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I'm not --
03-1601 +++$+++ 5071 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If -- if you acknowledge that it was intended to affect their immunity from suit, why -- why would we suspect that it was not intended to affect their immunity from damages?
03-1601 +++$+++ 5072 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because it would be -- it would be a provision with no effect whatsoever if it didn't override immunities to suit. But I'm not sure there are provisions that are providing for -- I mean, that there are myriad damages immunity laws that provide municipalities absolute immunity from suit. It's fairly common, at least under California and other State law, for municipalities to be subject to suit for review of their -- of the actions that they make. And that is the typical fashion that this -- this statute simply incorporated that typical fashion of providing judicial review of agency action. Another consideration that supports the view that section 1983 has been displaced is that the act provides an entire process for the implementation of the Federal statutes. It establishes Federal substantive requirements that identifies the agencies to implement them. It provides Federal procedural guarantees, APA-like guarantees, like the requirement of substantial evidence, like the requirement of a written decision, like the requirement of a decision with a reasonable period of time. It then follows up with a mechanism, an adapted mechanism for judicial review. In that sense, it is very much like the statute at issue in Smith v. Robinson. That elaborate process is particularly significant given the pattern of the Communications Act as a whole. The Communications Act repeatedly matches specific regulatory requirements such as, for example, the common carrier requirements in 202 and 203, with corresponding mechanisms for private enforcement, such as an action for suit -- I mean, an action for damages in court or an enforcement action in the commission in sections 206 and 207.
03-1601 +++$+++ 5073 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does this action have to be brought in Federal court? It says any court of competent jurisdiction. Could --
03-1601 +++$+++ 5074 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The action can be brought in State court and often is. There are about 50 reported decisions that we have found where the suit has been brought in State court. I haven't seen a particular pattern between the choice, but Congress gave the option.
03-1601 +++$+++ 5075 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would a State court be free to award damages or would that be preempted under the view you take of the statute?
03-1601 +++$+++ 5076 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The State -- because there's an express preservation of State law in this context, I think that State -- States would be free to award damages under their own laws. They wouldn't -- whatever relief is available under the Federal statute would be available under the available under the Federal statute, and State courts wouldn't be free to second-guess Congress' judgment as to what relief should be provided under Federal statute.
03-1601 +++$+++ 5077 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If the State court allowed damages -- if -- if the State system allowed -- State law allowed damages, would the Federal court, in an action under this section, be allowed to award damages under that -- under the State statute?
03-1601 +++$+++ 5078 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think since the -- the provision, the savings clause, says that the statute should not be construed to impair State law -- and there are so many municipal immunity statutes and you would only have one construction of the statute -- I believe that the construction would be an across-the-boards construction, that this act does not provide damages and you would not vary from State to State.
03-1601 +++$+++ 5079 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What if the State law authorized the recovery of attorney's fees? Would they be recoverable?
03-1601 +++$+++ 5080 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Pardon?
03-1601 +++$+++ 5081 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What if the State law authorized the recovery of attorney's fees?
03-1601 +++$+++ 5082 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
03-1601 +++$+++ 5083 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What would you do then?
03-1601 +++$+++ 5084 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the State law provides for recovery of attorney's fees for State violations, then that would control for State violations. For violations of Federal law, the -- the remedies that Congress chose to provide would control and the States would not be permitted to second-guess the -- the remedies --
03-1601 +++$+++ 5085 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm not sure why that would be if you, in fact, see the statute as trying to impose an APA-like structure, saying to the States, you decide the substance, we'll give you minimum elements of form, which helps your position. Then if the minimum elements of form are not specifically stated in the statute, there's no reason to interfere with the States. Let them do what they want. Only those minimum elements are what you can't do. That works perfectly for you.
03-1601 +++$+++ 5086 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer --
03-1601 +++$+++ 5087 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's strongly supported in the history. It may lose your client the money. I don't know.
03-1601 +++$+++ 5088 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in fact, California provides a municipal immunity for permitting decisions, and so my client --
03-1601 +++$+++ 5089 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So then you're only --
03-1601 +++$+++ 5090 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- would be fine with your position. But that is a potential inference. My -- the normal view would be that where Congress provides a -- a statute, one would normally presume that Congress intended a particular set of remedies to accompany it. You could say that the silence is meant to -- meant to reflect the fact that Congress knew that these would be enforced in State courts, as well as Federal, and it would allow State courts --
03-1601 +++$+++ 5091 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Congress didn't care.
03-1601 +++$+++ 5092 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to use whatever --
03-1601 +++$+++ 5093 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Congress wanted to substitute a Federal judgment for the judgment of the States where it said so. And the reason you know that is because that is what is consistent with the purpose of the act and other things are either neutral or negative. Don't interfere with the State unless you have to.
03-1601 +++$+++ 5094 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is one of our principal contentions, Justice Breyer, which is --
03-1601 +++$+++ 5095 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what, Mr. Lamken, would be the normal procedure in the State? You make an application for a permit to a zoning board. What is the standard operating procedure under State law? Suppose we don't have any telecommunications act in the picture.
03-1601 +++$+++ 5096 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The normal procedure is either under a uniform State law or California law. If you have a -- an entity which is -- excuse me. If you have either a planning commission or sometimes there's another entity that does the initial review and makes a determination whether to grant the permit. It is then appealable either to a zoning board of adjustment -- that's the -- the model act -- or in California, States -- localities have the option of having the appeal go to the local legislature. That appeal is then reviewed -- is then determined. And finally, once you've gone through that process, under California law it's generally reviewable by a writ of mandate, although other -- other States provide review by writ of certiorari, by mandamus, or by various other procedures, almost always subject to a short limitations period, almost always short -- requiring finality, a final decision, exhaustion through the State process.
03-1601 +++$+++ 5097 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the remedies being injunctive and declaratory.
03-1601 +++$+++ 5098 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ A -- a form of specific relief. Generally they have the authority to effectively go in and revise the decision below, but the remedies ordinarily do not include monetary or compensatory relief I should say.
03-1601 +++$+++ 5099 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you saying that it's parallel to what APA review of an agency decision would be?
03-1601 +++$+++ 5100 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's very much like that. The remand rule that this Court normally requires in the APA context is not so strictly observed in the context of -- of review of -- judicial review of zoning decisions, but it is very much like APA review. That is what prevails.
03-1601 +++$+++ 5101 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It -- it seems to me that the 30-day provision is inconsistent with the award of damages, but after I say that, I can't tell you why. (Laughter.)
03-1601 +++$+++ 5102 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, actually this Court's decision in Burnett v. Grattan actually tells you why, and that is that 30-day provisions, which are typical for on-the-record review of decisions below, are often insufficient to allow somebody to develop a whole new record such as their proof of damages, to make important decisions if they're going to have, for example, a jury trial, or to prepare for discovery. And that's why 30-day provisions are not entirely uncommon in the area of judicial review of agency action, but they're wholly unprecedented, for the most part that I know of, in the area of tort-like remedies like section 1983. If I -- if there are no further questions, I would like to reserve the remainder of my time for rebuttal.
03-1601 +++$+++ 5103 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, you may. Mr. Feldman.
03-1601 +++$+++ 5105 +++$+++ FALSE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: Where Congress creates a special cause of action for -- for a violation of a Federal law that necessarily carries with it its own features and incidents, Congress' decisions about the appropriate mechanisms for dealing with that violation of Federal law should not be frustrated or overridden by allowing a 1983 action in addition. In this case, section 332(c)(7)(B)(v), which creates a cause of action for violation of the specific standards in (i) through (iv) is an independent, standalone cause of action. If 1983 didn't exist, 332(c)(7)(B)(v) would, undoubtedly, still provide plaintiffs with a mechanism to get into court and attain redress for the legal wrongs that they claim. Where Congress has taken that step and has thought about what the appropriate remedy should be for a violation of a particular Federal statute and has created a judicial remedy, then it would only frustrate --
03-1601 +++$+++ 5106 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it -- the statute, though, is silent on the question of damages or attorney's fees, isn't it?
03-1601 +++$+++ 5107 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is. It doesn't say anything expressly about either of those things, but I think it has long been --
03-1601 +++$+++ 5108 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can we infer all appropriate relief? Do we?
03-1601 +++$+++ 5109 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As a matter of damages, I think all appropriate relief would be the standard. But as a matter of attorney's fees, I think is a good example of why there shouldn't be a 1983 action here because the law is 100 percent clear, from this Court's decision in Alyeska and other cases, that where Congress hasn't provided for fee-shifting, there simply is no fee-shifting authorized. That's what they intended.
03-1601 +++$+++ 5110 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Attorney's fees are never appropriate, in other words.
03-1601 +++$+++ 5111 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Are never appropriate unless Congress specifically provides for them.
03-1601 +++$+++ 5112 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it has provided for them for a 1983 action, and if it's a 1983 action, it takes care of it.
03-1601 +++$+++ 5113 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
03-1601 +++$+++ 5114 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And this is kind of circular.
03-1601 +++$+++ 5115 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think it's circular because I think when Congress created the specific cause of action here in (B)(v), it didn't provide for attorney's fees and therefore intended that attorney's fees not be provided. If respondent's view in this case were accepted, the -- the presumption would be exactly flipped, and Congress would have had --
03-1601 +++$+++ 5116 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Feldman --
03-1601 +++$+++ 5117 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose Congress said specifically 1983 applies. That's all it says. Would that carry with it attorney's fees in your view?
03-1601 +++$+++ 5118 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I -- yes, I think it -- I think it would. The question here, though, is where Congress has thought about what kind of remedy it wants for violation of a Federal statute and created a judicial cause of action for every wrong that's -- that -- that can exist under that statute, then the incidents and features of that cause of action should govern, not the incidents and features of 1983 which almost inevitably and in this case are different. And attorney's fees is just the best example of that. If -- under respondent's view -- when Congress was fashioning this statute, it certainly was aware of this Court's decisions that have repeatedly said that attorney's fees are not available unless they're expressly provided for. And indeed, elsewhere in the Communications Act --
03-1601 +++$+++ 5119 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I take -- you -- you take the position that 1983 doesn't apply at all. It's not just attorney's fees. It's damages.
03-1601 +++$+++ 5120 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. But it's just an illustration. There's other differences between the provision here and 1983, but I think the basic point is that where Congress has given thought to the remedy for a particular violation -- type of violation of Federal law and has provided for a judicial cause of action, with whatever features and incidents it -- it wants, 1983 shouldn't be allowed in. It should be assumed that Congress didn't want to have its decisions frustrated by also allowing a 1983 action.
03-1601 +++$+++ 5121 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about damages?
03-1601 +++$+++ 5122 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you -- do you think that any other provisions of the Communications Act are enforceable under 1983? I mean, we're talking about 332, but it's a big, complicated act. Are any of the other provisions enforceable?
03-1601 +++$+++ 5123 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think -- I think the same rule would apply to any of the provisions where Congress has specifically provided for a cause of action for the same reason, otherwise Congress when -- here, for example, just to return to attorney's fees for a second. When Congress was framing this legislation, they knew that they weren't giving attorney's fees and this 332(c)(7)(B)(v) would be construed not to give attorney's fees, but not --
03-1601 +++$+++ 5124 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, this is really a more general proposition you're urging upon us then, that whenever Congress creates a cause of action that is -- what -- in any respect more limited than section 1983, the background action of section 1983 is not available.
03-1601 +++$+++ 5125 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- I -- I think that's correct.
03-1601 +++$+++ 5126 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. How could that be? Wouldn't it depend on whether -- when you look at the particular statute, the particular set of remedies that Congress has included in that statute could be absolutely independent of 1983 or dependent upon 1983 or leaning in favor or leaning against. It would depend on the particular statute. Why in general?
03-1601 +++$+++ 5127 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think in -- I think the rule would be in general because, first of all, it's not just remedies. There's other incidents of a cause of action such as statute of limitations, the provision here for expedition, and other things. And really when Congress has given thought to what remedy it wants for a violation here of (i) through (iv), for a violation elsewhere in the Communications Act of other Federal standards, it shouldn't be assumed that they all -- that -- to allow a 1983 action would just frustrate Congress' intent in fashioning that particular remedy.
03-1601 +++$+++ 5128 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then how would you ever have a statute that -- 1983 provides for relief when there's a violation of Federal law, statutory or constitutional. One of the briefs in this very case says that your broad reading means that you were doing away with statute as a basis for 1983.
03-1601 +++$+++ 5129 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I think that that's completely wrong. When Congress has created -- has recognized a right, as this Court has found is essential for a 1983 action, and it hasn't done anything about providing a remedy for that right, hasn't created a cause of action in court in particular, then that's the function of 1983, is to serve -- it provides a cause of action for people who suffer a violation of that wrong, a statutory violation. But where Congress has given thought to what kind of a relief it wanted and it said we want a cause of action with these such-and-such incidents, no attorney's fees, 30-day statute of limitations, expedition, whatever the other ones are here, then it would just frustrate Congress' intent to say, oh, and also you get a 1983 action to undo all of the things that Congress provided for.
03-1601 +++$+++ 5130 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, there -- there are two situations. I mean, one can supplement without frustrating. I mean, you -- you could say that in, you know -- in some respects the 1983 will contradict the action that was provided, but one can conceive of a provided action that -- that grants relief which 1983 would not grant.
03-1601 +++$+++ 5131 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. And -- and I -- whatever -- I guess the general point would be whatever remedial decisions Congress made, those should be respected, but I would add in this case it's not just -- it's a question of attorney's fees, which they would have had to -- Congress would have had to do something very unusual here, which is particularly put in this statute no -- there shall be no fee-shifting because otherwise you can always go to 1983 and get it. In fact, even if they had done that in 332(c)(7)(B)(v), respondents would still argue, well, we still have our 1983 action.
03-1601 +++$+++ 5132 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what about damages? Do -- do you take any position on whether the Communications Act provision enables damages to be collected?
03-1601 +++$+++ 5133 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't have a position on whether it does. I think there's arguments both ways. I would point out --
03-1601 +++$+++ 5134 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You think it's unnecessary to decide this case.
03-1601 +++$+++ 5135 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it is unnecessary, and in fact, I think it shows a problem with -- a reason why our view, which is if Congress creates a cause of action, that should be respected -- why that should be respected. Under other views, you have to look at the 1983 action and figure out all of its incidents. You have to look at the 332 action and figure out all of its incidents in the abstract as here, not where -- in connection with a particular claim for damages, and then see whether they're consistent with each other. I think the much better rule would be to say where Congress has created a specific cause of action, that's what it wanted, and whatever you get under that, you get. Whatever you don't get under that, you don't get. But 1983 shouldn't be used to -- to frustrate Congress' intent and give you things that that cause of action wouldn't to give you a longer statute of limitations, which would be, I think, the case here, to give you -- eliminate the provision for mandatory expedition, to have any differences in damages. Another way to put it would be under the Court's decision in Franklin, this statute gives you any appropriate relief. All that 1983 could do here -- it maybe gives you the same thing in which, as far as that goes, it doesn't matter. But all it could do otherwise would be give you inappropriate relief, i.e., relief that Congress didn't want. And instead of construing the two statutes in that way, they should be construed harmoniously and in accord with this Court's decisions which have set forth the line of cases where you have a right to get into court in Wilder -- I'm sorry -- in -- in Sea Clammers and Smith against Robinson and said there we want to take Congress' remedy, however simple or complex it is. It gives you a complete right to get into court and gives you whatever it gives you. And that should govern. And then the other line of cases, which is Wilder where -- and -- where it says -- and the Wright against Roanoke where Congress didn't give you a right to get to court -- get into court. In those cases, that's the function of 1983. The same thing would be true in -- in a number of other this Court's cases that have recognized you have a 1983 action when Congress gave you a right and didn't think at all about the remedy because that's the function that 1983 was supposed to serve. If there's no further questions.
03-1601 +++$+++ 5136 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Feldman. Mr. Waxman.
03-1601 +++$+++ 5138 +++$+++ FALSE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Justice Stevens, and may it please the Court: In -- by its clear text, section 1983 promises redress for the depravation of any Federal right in any, quote, proper proceeding. And that expansive language, this Court has recognized, dictates a heavy presumption that its remedies apply to all violations of Federal rights, a presumption which this Court has said is rebutted only in the, quote, exceptional case in which the statute that creates the right is accompanied by an enforcement scheme that is, quote, incompatible with or inconsistent with 1983's remedies. That's --
03-1601 +++$+++ 5139 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Waxman.
03-1601 +++$+++ 5140 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the background principle.
03-1601 +++$+++ 5141 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Waxman, it seems to me that the -- the best argument we've heard about incompatibility is the one -- or at least I think the best -- is the one that Mr. Lamken touched on at the tail end of his argument, and that is, he said there's -- there's a 30-day provision in there, which in effect says Congress wants this litigation conducted fast and over with fast. And that is incompatible with a damage action because if you get into a damage action, you are going to get into the panoply of -- of damages litigation, including depositions, and -- and the one thing you can guarantee is that it is not going to be over expeditiously. What is your argument? What is your response to that incompatibility argument?
03-1601 +++$+++ 5142 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that the way this Court has interpreted incompatibility before -- in the two instances in 25 years since Maine v. Thiboutot was decided, the only instances in which this Court has found incompatibility has been where use of 1983 would create an end run around limitations in the statute. That is, in the -- in Sea Clammers and in Smith v. Robinson, you had statutes that forestalled an individual's access to court via an administrative regime and then expressly limited the judicial remedies that would be available once they got there by requiring, for example, only injunctive relief.
03-1601 +++$+++ 5143 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the other word is inconsistent, and is it -- sorry. Were you -- is it inconsistent if Congress didn't want it? And if that's insufficient to be inconsistent, then here, as I look at the statute, to get out my thinking, I think that it sounds like an administrative law statute. If I saw the maintenance and cure words, I'd think it was an admiralty statute.
03-1601 +++$+++ 5144 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. I --
03-1601 +++$+++ 5145 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I see an administrative law statute. It sounds like that's the system they're imposing and therefore a system that is not consistent with the administrative law system fails and 1983 seems to fail.
03-1601 +++$+++ 5146 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. Now I have two points. I -- I don't want to forget these. I have to deal with the -- the question of whether a 30-day requirement is inconsistent and whether damages would be inconsistent with what -- with what my colleagues posit as an APA-like administrative review model. A 30-day requirement is simply a reflection of Congress' -- Congress confirming expressly that somebody who -- who is aggrieved under the rights provided to him under 332(c)(7) and wants any judicial remedy, whether it's from 1983 or otherwise, has to go to court promptly. It's precisely what 1983, this Court said in Patsy and Felder, guarantees and requires. It does not require --
03-1601 +++$+++ 5147 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it also requires expeditiousness on the part of the court.
03-1601 +++$+++ 5148 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It requires that the court proceed expeditiously and courts can proceed expeditiously where damages are sought or are not sought. One of the interesting things about damages --
03-1601 +++$+++ 5149 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But do you -- do you agree with this much, that if -- if damages, in fact, are going to be allowed, what is going to count as expeditious is going to be a lot slower than what is going to count as expeditious if damages are not allowed.
03-1601 +++$+++ 5150 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that's true. In fact, I think this case is a pretty good example. The court separated it -- I mean, acting under a requirement of expedition at the request of the city. This -- the court didn't even begin to address this case until 18 months after it had been filed. But what it said was --
03-1601 +++$+++ 5151 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. And -- and that --
03-1601 +++$+++ 5152 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the first issue --
03-1601 +++$+++ 5153 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that was a violation of the statute, wasn't it?
03-1601 +++$+++ 5154 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it first issued an order saying, okay, I've construed the statute and I've determined that the statute is violated. Now we will have a separate proceeding. Then the city will conduct itself accordingly. Now we'll have a separate proceeding in order to determine whether damages or attorney's fees are available. And that is available in any of these cases. What --
03-1601 +++$+++ 5155 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So they turned the damage issue basically just into a separate remedial hearing at the end of the case.
03-1601 +++$+++ 5156 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could or could not be, and there may -- may be many cases when damages aren't appropriate but --
03-1601 +++$+++ 5157 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought that was just to decide in -- in the -- in the court of first instance -- that tail end was not to decide whether in this specific case damages or attorney's fees were due. But the district court was deciding a question of law, that is, whether in this kind of review proceeding anyone could have damages, anyone could have attorney's fees.
03-1601 +++$+++ 5158 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What he said, Justice Ginsburg, was we'll deal with what other remedies, if any, are available and to what extent in a separate proceeding. As it turns out, he concluded in an --
03-1601 +++$+++ 5159 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But was not making a rule for this case only. He was making a ruling of law.
03-1601 +++$+++ 5160 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For sure. He said that I don't think you're entitled to this because I think that the statute doesn't allow it. And therefore, he didn't get to this question. But the point about damages -- I think there are two points that are very important that not be obscured. First of all, the Government -- the fact that the Government and the petitioner can't agree on whether the statute itself provides damages relief under the principle of Bell v. Hood and Franklin v. Gwinnett County certainly shows that Congress did not speak expressly on this subject.
03-1601 +++$+++ 5161 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They -- they don't necessarily disagree. The Government just says the -- the issue doesn't have to be reached in this case.
03-1601 +++$+++ 5162 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think -- I think that -- what the Government says in its papers is they may well be available and what Mr. Feldman -- I don't want to misquote him, but he said that under Franklin -- he agreed, I think, with what Judge Posner wrote for the Seventh Circuit, which is where no remedies -- where no specific remedies are specified -- and that's the case here -- you apply a rule of judicial implication, announced in Bell v. Hood and applied to an implied right of action in Franklin, to apply that all appropriate relief is available. And damages are the paradigm.
03-1601 +++$+++ 5163 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Waxman.
03-1601 +++$+++ 5164 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And the irony here --
03-1601 +++$+++ 5165 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Waxman, how do you -- how do you get a reading of the 30-day limitation, which is applicable to the cause of action under the Communications Act, sucked into the cause of action under section 1983? I mean, if the suit is under 1983, it's under 1983. There's no 30-day limit there.
03-1601 +++$+++ 5166 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I have -- I have two different ways to get to that. First of all, section 1983, by its terms, provides redress in any appropriate cause of action. It also supplies a cause of action where no other cause of action is available, but by its express terms, it doesn't exclusively limit its remedies to causes of action that are brought under 1983.
03-1601 +++$+++ 5167 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, it doesn't.
03-1601 +++$+++ 5168 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But more broadly --
03-1601 +++$+++ 5169 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It doesn't require you to -- to establish a cause of action under some other statute either.
03-1601 +++$+++ 5170 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. It provides a --
03-1601 +++$+++ 5171 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It does not at all. It's -- it's self-contained. And do you know any case where we have read into, or indeed, it's even been urged upon us to read into, section 1983 limitations that somehow come from the statute that was violated and which forms the basis for the 1983 action?
03-1601 +++$+++ 5172 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't, but I do know that this Court -- first of all, Congress has now enacted section 1658 which provides a -- a 4-year Federal default statute of limitations, where -- where a statute like 1983 doesn't provide it, but includes an -- an introduction that says, except where otherwise provided by Federal law. And there's certainly nothing in that language that says when you're looking at whether a statute of limitations is otherwise provided by Federal law, you look to the very statute that creates the substantive right that 1983 is enforcing. And even before that, when your -- your decision in Wilson v. Garcia made the point that when you try to figure out what statute of limitations applies to a freestanding 1983 action, there are -- there is a tripartite rule of construction that section 1988 requires you to engage in. And the first part is to see whether there is any, quote, suitable Federal statute of limitations. Now, in constitutional cases, like the one that was at issue in Wilson v. Garcia or under the Social Security Act, which is what was addressed in Maine v. Thiboutot, there were no express causes of action, much less any express statute of limitations. And so this Court said you then go to the second rule, which is what's the most appropriate State limitations, as 1988 requires. But the anomaly of the argument here is we have a background principle that 1983 is available and there is a heavy presumption that it will be available unless it is explicitly incompatible or inconsistent with --
03-1601 +++$+++ 5173 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's --
03-1601 +++$+++ 5174 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and --
03-1601 +++$+++ 5175 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that's why I'm approaching it differently, and I -- I want to get your view on it. I'm taking the word inconsistent and I'm using that as a guide back into the purpose of the statute. And once I do that, I find Congress here anxious, I think, to engage in what I'd call cooperative federalism. They could have run the whole show, but they said we don't want the FCC. We want each city and town to do what they want, subject to a few minimal procedural requirements. If that's right, that means all these damages questions are open. All kinds of things are open, but -- and we'll decide them in a variety of ways, maybe deferring to the State, but one thing is true: 1983 doesn't apply because that is a different set of remedies.
03-1601 +++$+++ 5176 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, this is not the APA model. This is not a model of administrative review for a number of reasons. Number one, it is a background -- there -- there -- it is established, for purposes of this case, that this statute creates individual Federal rights and those rights were violated. And the background rule is uniformly -- and this Court has -- has -- in Owens v. City of Indianapolis and many other cases has reinforced the principle that damages are available and 1983 is available where Federal rights are violated by municipalities, whether it's under the Takings Clause or the Due Process Clause or the Equal Protection Clause or in statutory cases. What is more --
03-1601 +++$+++ 5177 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Waxman -- Mr. Waxman, one of these provisions gives you an option to go to the FCC, the one having to do with emissions. Now, if you sought review from the local decision to the FCC, you petition for FCC relief, would the FCC have authority to give you attorney's fees?
03-1601 +++$+++ 5178 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The FCC has said that it does not if you do that. In -- in 2000, when the FCC last reported, one person had chosen to go that route rather than go to Federal court. It --
03-1601 +++$+++ 5179 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, isn't that an incongruity that Congress would say you have your choice? Complainant, you can go to the Federal agency, the FCC, or you can go to court.
03-1601 +++$+++ 5180 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You can't go to the -- excuse me. I didn't --
03-1601 +++$+++ 5181 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So if -- if you have that choice, when you're dealing with the radio emissions, to go the -- why would any litigant ever do that? Why would any attorney ever do that if you don't get fees at the FCC and you do get fees in court? Wouldn't the presumption be that it would work the same way whether you go to the agency, Federal agency, or Federal or State court, that you're in the same situation as respect to fees?
03-1601 +++$+++ 5182 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the FCC alternative for a declaration by the FCC applies to only one of the five rights that are provided here, and even if it applied to all of them, I don't think you could possibly infer that --
03-1601 +++$+++ 5183 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let's take the one, that -- that one. Are you saying no attorney's fees there because you couldn't get them at the FCC, therefore you shouldn't get them in court?
03-1601 +++$+++ 5184 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely not. If -- if there were an instance in which a local zoning official said, you know, I know I'm not supposed to take radio frequencies emissions into account, but I'm going to, it's denied, I would have the right either to go to the FCC and say, tell them no, or to file an action under 332 and/or 1983 and say that violates my rights. And actually your example --
03-1601 +++$+++ 5185 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But isn't --
03-1601 +++$+++ 5186 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If I just may finish. Your example, I think -- the example of this particular provision points out that what -- the balance of what I was going to explain to Justice Breyer, which is that another reason why this isn't the APA model is that this statute includes in little (i) and little (ii) substantive provisions, not just procedural provisions. You can't discriminate, to give Justice O'Connor's first example, among providers. The -- that was a complaint in this case. There is de novo review, it is clear, on those claims. It's not administrative APA review in any respect. And in fact, the district judge in this very case, Judge Wilson, says it looks like, in fact, you were discriminated against, but I don't need to reach that because it's clear that there was no substantial evidence.
03-1601 +++$+++ 5187 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They -- they didn't provide for the normal administrative review because they were quite aware that under the State zoning systems, there would always be State administrative review before the issue even comes up.
03-1601 +++$+++ 5188 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And this --
03-1601 +++$+++ 5189 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so what this provides is what kind of judicial review there will be after the anticipated administrative review before the zoning board and whatever appeal from the zoning board exists.
03-1601 +++$+++ 5190 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I have to respectfully disagree. This Court, in -- in Williamson County and Darby and many other cases, has distinguished carefully between final -- final action and exhaustion of administrative review or judicial review. And all this statute requires is that if you are aggrieved by an action or inaction of a State or local government or an instrumentality thereof --
03-1601 +++$+++ 5191 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Final. Final action or failure to act is what --
03-1601 +++$+++ 5192 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
03-1601 +++$+++ 5193 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Final action or failure to.
03-1601 +++$+++ 5194 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And final action, this Court has explained, does not import into it exhaustion of either a State administrative or judicial remedies. What it means is that once you have been injured, it's a -- it's a ripeness requirement that's familiar under --
03-1601 +++$+++ 5195 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You haven't been injured until you've exhausted your --
03-1601 +++$+++ 5196 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is --
03-1601 +++$+++ 5197 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You -- you really think that when there is a State provision available for review of the zoning board, you can commence an action under 1983 without even going through the administrative appeals?
03-1601 +++$+++ 5198 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I am entirely certain of that, and in fact, the -- the local ordinance -- I mean, the question of what is final agency action is surely a Federal question, but --
03-1601 +++$+++ 5199 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is really respecting the States, which is what the -- the purpose of this -- of this whole provision was.
03-1601 +++$+++ 5200 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, when Congress addressed this problem in 1996, as the Government points out in the very first page of its brief and as the legislative history reflects, it was confronting a situation in which intransigent, entrenched zoning authorities were acting arbitrarily to frustrate the creation of a national wireless network. And it was so concerned about this that the House actually passed a provision that removed this paradigmatic local authority to the FCC. The FCC was --
03-1601 +++$+++ 5201 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which would be more burdensome? That enactment or subjecting municipalities nationwide to damages? Which would be more intrusive and burdensome on federalism --
03-1601 +++$+++ 5202 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think --
03-1601 +++$+++ 5203 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and the abilities of local governments to function?
03-1601 +++$+++ 5204 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, I think the former, for sure. I mean, the notion that zoning decisions, siting decisions would be removed entirely from localities is unbelievably intrusive. And what happened in the conference committee was a compromise was reached whereby Congress' objective was going to be achieved by creating -- by leaving it, in the first instance, Justice Kennedy, to local --
03-1601 +++$+++ 5205 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I'm -- I'm not so sure because you're arguing that even the smallest municipality can be liable for hundreds of thousands of dollars of attorney's fees.
03-1601 +++$+++ 5206 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1601 +++$+++ 5207 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I --
03-1601 +++$+++ 5208 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- let me just say this, with respect to the --
03-1601 +++$+++ 5209 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Plus other -- plus other damages.
03-1601 +++$+++ 5210 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think this case, Justice Kennedy -- I have three things to say about this. Just this case is every bit as -- as paradigmatic as the parade of horribles that they suggest. And here's my proof. It has been since 1997 that courts have been ruling that 1983 and damages are available under this statute. There is no evidence in any of the briefs on the other side or any of their amici that there has either been a flood of litigation or inappropriately large awards. And if that happened, Congress would do -- would be attentive to it in the way that Justice Ginsburg pointed out when the local cable authorities came to -- came to the very same committees 4 years before and said, we're being hit -- there's an express right of action in 555 of the -- the Communications Act. We're being hit with very large 1983 awards. Please do something about it. And the very same committees 4 years before enacted a provision that said you may get only injunctive and declaratory relief, thereby creating an incompatibility with 1983, as the legislative history expressly provides.
03-1601 +++$+++ 5211 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, cable -- cable media companies may -- may have Congress' ear more readily than -- than -- you know, than the municipality of whatever this is or any --
03-1601 +++$+++ 5212 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ State and -- than State and local governments? I hope not. But here's -- here's the additional --
03-1601 +++$+++ 5213 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I -- I wouldn't put a lot of money on it. (Laughter.)
03-1601 +++$+++ 5214 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The point is that Congress -- Justice Kennedy, the point is not that Congress was being inattentive to State and local budgets. What it wanted to do what was this -- the point this Court the addressed in -- in Stakura and -- and Owens v. City of Indianapolis, which is to enforce a Federal statute through privately enforceable Federal rights, which would include a damages remedy that both provides a deterrent against conduct that had provided entrenched resistance to a Federal program and provide compensation where reasonable and appropriate. Now, this Court has made clear, with respect to damages, in -- in Carey v. Piphus and other cases, that there may be very many cases in which there's a violation of a procedural right but only nominal damages are available. And in Buckhannon --
03-1601 +++$+++ 5215 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But with respect to --
03-1601 +++$+++ 5216 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If I may just finish this sentence. And in Buckhannon and Farrar v. Hobby, this Court has -- has recognized that in order to get attorney's fees, you have to have substantially prevailed and a court, under 1988(b), may award attorney's fees in its -- may award -- in its discretion insofar as they are reasonable. And --
03-1601 +++$+++ 5217 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. -- Mr. Waxman.
03-1601 +++$+++ 5218 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Ginsburg.
03-1601 +++$+++ 5219 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There is in this legislative record a concern expressed by a Senator from California when there was a proposal on the table to make the FCC the Federal review forum. And that was rejected, if I understand correctly, because there was a concern that municipalities would have to travel all the way to Washington, D.C. to defend in the FCC's forum. And Congress did not want to saddle municipalities with the cost of transporting their representative to D.C. Well, that cost would pale compared to attorney's fees that would be awarded.
03-1601 +++$+++ 5220 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ First of all, Justice Ginsburg, I -- the reference to those two Senators -- what those two Senators were talking about is not, as my colleague's brief suggests, this provision. They were talking about another provision of the Telecom Act. I think it was section 253, but I may be wrong. But even if that's the case, the fact of the matter is that whether it was going to cost them -- I agree. It would cost -- look, a regime in -- which left all of these siting decisions to the FCC is breathtaking, and it certainly would impose lots of costs not only on local municipalities to have to come to Washington to justify these decisions, but certainly on the FCC, which would have to send an army out to example -- I mean, it would sort of like be the -- the television commercial, you know, where the guy is walking around saying, you know, can you hear me now, can you hear me now? The fact is it made great sense to continue to leave the initial decisions with local authorities. But Congress had -- was frustrated, expressly frustrated with the fact that the prior regime, in which they had let local authorities do it under their normal routines and applying the normal remedies, was not getting the job done. That was the imperative of this statute. And in the -- in the absence of any evidence, even now 11 years later -- or I guess it's 10 years -- 9 years later. In the absence of any evidence of a flood of litigation or inappropriate awards, I think given the very heavy presumption that this Court has recognized over and over and over again, that 1983 is there.
03-1601 +++$+++ 5221 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That isn't the only --
03-1601 +++$+++ 5222 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 1983 is the background principle against which Congress legislates. And this statute either -- neither provides nor excludes any remedies, and all it does is confirm that when you go -- when you are injured, you can go to court. And --
03-1601 +++$+++ 5223 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The other -- the other harm is there any evidence of because it's -- it would also be harmful if local zoning boards, when faced with quite difficult decisions, because the -- the antenna -- they bristle up and you put them in the wrong place. They're environmentally harmful. They -- there are a lot of bad things, as well as good things about them. And of course, it would be a bad impact if we discovered that the zoning boards were erring too much on the side of granting everybody's application, as well as too much on the side of not granting them.
03-1601 +++$+++ 5224 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To be sure.
03-1601 +++$+++ 5225 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so I -- I don't know how -- what the -- there won't be evidence. How can we get evidence on such a thing?
03-1601 +++$+++ 5226 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the -- you -- the evidence will be either in the decided cases or by local municipal governments coming to Congress and saying, this is too heavy a thumb on the scale. But what we know is that if you afford only prospective relief, which is the -- the ancien regime that Congress was -- that Congress felt wasn't doing the job, it provides no deterrent, no incentive to accomplish what Congress said was --
03-1601 +++$+++ 5227 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I -- I don't think we --
03-1601 +++$+++ 5228 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- a compelling national objective.
03-1601 +++$+++ 5229 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't think we usually think of -- of judicial review of agency decisions in the ordinary course as being a deterrent.
03-1601 +++$+++ 5230 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We --
03-1601 +++$+++ 5231 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's an opportunity to elaborate reasons. It's a safeguard. It's not a deterrent. And you're saying it has to be a deterrent. And as Justice Breyer indicates, it -- it means that there's -- there's another voice in that -- in that administrative hearing room. They're terrified of damages.
03-1601 +++$+++ 5232 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy --
03-1601 +++$+++ 5233 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it's going to skew the decisions.
03-1601 +++$+++ 5234 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, it -- under their -- under the regulations of this municipality, which is -- is perfectly representative, it is final agency action when the city planning commissioner says no, unless you choose to appeal it to the city council. And there is -- not only is there nothing peculiar about applying 1983 damages awards to the violation by a State and local government of an express Federal right, assuming you can prove not only that the right was violated but also that you were really damaged. It's -- I'm not suggesting that -- that Congress had damages in mind specifically and only to deter conduct. You have said in a variety of instances -- I mentioned Stacura in particular -- that 1983 damages do serve as a deterrent to violation of Federal rights by municipal local officials. But what Congress had -- Congress had to come up with some way to confront this problem in which there were sort of local parochial --
03-1601 +++$+++ 5235 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask this question, Mr. Waxman? I don't know if it's really a legal question exactly, but I have the impression that most of the plaintiffs in this type of litigation are well-financed, large companies rather than the typical 1983 plaintiff. And therefore, you don't need the attorney's fee incentive to be sure these rights are protected. Is that a correct impression or is it incorrect?
03-1601 +++$+++ 5236 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I don't know whether it's a correct impression or not. Our brief points the Court to an authority that at least 9,500 of the entities that have -- have created antennas or tower facilities have 10 or fewer facilities. And one thing we know for sure is that when Congress enacted the Telecom Act of 1996, it specifically wanted to encourage small operations, start-up companies. It had specific provisions in the law to give special treatment to small entrepreneurs in order to foster diversity and competition. But in the event that you --
03-1601 +++$+++ 5237 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I can't imagine -- I can't imagine, Mr. Waxman, that Congress wanted to impose damages plus attorney's fees upon municipalities without even giving the municipalities the chance to correct their mistakes, which is what you're saying.
03-1601 +++$+++ 5238 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1601 +++$+++ 5239 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're saying the municipalities' appeal system, which is there for people to take advantage of, is just washed out. One mistake at the lowest level and you get damages and you get attorney's fees. That -- that is extraordinary.
03-1601 +++$+++ 5240 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, the -- the -- 1983 -- and your jurisprudence shouts this as clearly as it does any other principle -- stands for the proposition that it's there unless, in the explicit language of the statute that creates the right, there is a demonstrated incompatibility. And that's the background rule. There are many instances in the Telecom Act and elsewhere in which Congress has said you can only get injunctive relief. You may not get 1983 damages. I mean, go back to Adickes v. Kress where this Court said in title II of the Public Accommodations Act, Congress expressly -- expressly precluded damages in order to avoid invocation of 1983. And I'm not saying that Congress had in mind my client, who is an individual, a sole entrepreneur, who was subject to, I think what the record shows is, prolonged and entrenched intransigence by this particular municipality, any more than it had Judge Posner's example in the Seventh Circuit where it was, you know, Verizon v. the Village of Mequon. But this Court has recognized, as have the lower courts, that you only get damages if you prove that you really have been damaged. And in an instance where there's some procedural violation and a remand to correct it, this may very well be the instance of Carey v. Piphus, where the damages are purely nominal. The agency is given the opportunity. In this case, the city never said, give us the opportunity to go back and correct it. And Judge Wilson, a very level-headed district judge, said there's nothing to go back and correct because the only thing -- the only reason that the city gave was it didn't like this antenna and tower in the first place. It -- we concede that it makes no difference to anybody which frequencies are being broadcast from this tower that we approved 10 years ago and have no right to modify. And therefore, there was a substantive violation, not just, you know, you -- you may have had substantial evidence but you didn't lay it all out or you gave your reasons at length and orally but not in writing, I'll give you the opportunity to go back. There's a line of cases this Court has decided under the Social Security Act where there have been remands to correct procedural errors or small errors, and in those instances, Carey v. Piphus says you don't get damages. And under Buckhannon and Farrar v. Hobby, you probably don't get attorney's fees either. If there ever is the sort of parade of horribles that they protest about, even a small parade of horribles, Congress will be as attentive as it was in 1992 when the cable --
03-1601 +++$+++ 5241 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Waxman.
03-1601 +++$+++ 5242 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
03-1601 +++$+++ 5243 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Lamken, you have about 4 minutes left.
03-1601 +++$+++ 5245 +++$+++ FALSE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd like to make only two brief points. First, that the imposition of the -- of damages and fees under section 1983 from a decision in this Court for even good faith mistakes in the implementation of the antenna siting rules, which are often complex and uncertain, would be a welcome mat for extensive and aggressive litigation and the imposition of extensive fees on municipalities which simply cannot afford to enforce their zoning rules, the rules that Congress expressly attempted to preserve in the statute itself. It is -- in this case alone, for example, respondent's most recent estimate of his damages and fees -- and this was before he retained Mr. Waxman, I might add -- is -- is $15 million, essentially the city's entire budget for a year. And respondent claims to be a relatively small operator. That sort of -- with that sort of liability in an uncertain area of law, very few municipalities could ever afford to stand on their rights to enforce local zoning even when they're relatively certain that they are right. Section 332(c)(7) is entitled and has one of its purposes as the preservation of local authority. It should not be construed to provide for that authority's evisceration. The second point I wanted to hit is that when Congress established the mechanism for review in 332, it provided a very adapted mechanism with an unusual pair of characteristics: a very short limitations period and mandatory expedition. This Court's decisions in Novotny makes it clear that neither of those requirements can be simply transferred over to section 1983. Novotny had very similar language, a 90-day limitations period. The Court did not transfer that over to section 1983. Instead it understood that the general rule, the general Federal principle of law, that in the absence of an express limitations period, that State law would control. Wilson then confirms that rule, as an interpretation of section 1988, that the governing Federal principle is that State law controls unless there's an express Federal cause of -- statute that addresses that particular cause of action. If there are no further questions, we ask only that the judgment of the Ninth Circuit be reversed. Thank you.
03-1601 +++$+++ 5246 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Lamken. The case is submitted.
03-1693 +++$+++ 5250 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ And we will now hear argument in McCreary County against the ACLU. Mr. Staver?
03-1693 +++$+++ 5252 +++$+++ FALSE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens and may it please the Court. Before this Court is a setting of law in a courthouse and a display on law that contains the universally recognized symbol of law. Despite the fact that the deck law occupies only one tenth of this otherwise secular display, the Sixth Circuit struck it down. The Court focused solely on the religious aspect of the Ten Commandments and that's aired by ignoring the overall context. The Ten Commandments is unlike most any other acknowledgment. It is in a category essentially all by itself. It is thematic in common places in courthouses while Nativity scenes and menorahs occur occasionally and often gratuitously on public property. The Ten Commandments occurs quite frequently and has for more than a century in courthouses all over this nation. It is associated with courthouses for a clear historic reason, because the Ten Commandments has played an influential role in American law and government and our system of law in this country. The context in this case is clearly important. Yet the Sixth Circuit --
03-1693 +++$+++ 5253 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask you there basically to comment on the point that Justice Scalia made in the course of the last argument? The context, as we know, has changed pretty radically in the course of litigation over this and it started out with just the Ten Commandments alone and then version 2, the Ten Commandments had certain -- were surrounded by certain quotations of religious content from other texts. And finally, as I guess literally is true with a new lawyer and more litigation, we've gotten to the present context. Isn't the problem that you have to face, as I've said before, what Justice Scalia raised before, everybody knows what's going on. Everybody knows that the present context is simply litigation dressing and that the object for what is going on is the object that was revealed in the first place. What is your response to that?
03-1693 +++$+++ 5254 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Several. The display in this case has three different phases. First it was the stand-alone Ten Commandments. They were sued. They could have defended that but they chose instead to switch rather than fight because they wanted to try to comply with this Court's establishment clause jurisprudence, to try to figure out how to be able to display this particular document. They stepped, however, on a land mine admittedly with this second display.
03-1693 +++$+++ 5255 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, they created the land mine basically. I mean --
03-1693 +++$+++ 5256 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They were trying to do the best that they could, trying to follow this ever bending establishment clause jurisprudence especially in the area of displays. Remember this was back in 1999. At that time, there were less than a handful of reported decisions ever in this country on the Ten Commandments. The first was in 1973, Stone was in 1980 and there were a couple of others. There are only 30 reported cases in the country or so and 23 of those happened from 1999 to the present so they didn't have really any guidance. They were trying to follow Lynch and Allegheny as best as they could but these are governmental officials. They're not jurists schooled in the law. And admittedly they made a mistake. But what they have now is the foundation is display and as the District Court recognized, it is fundamentally different than any previous display. Like this Court's decision in the Sunday law cases, even though it may have started off for a religious purpose, the Sunday laws were continued to be retained for secular reasons. In this case --
03-1693 +++$+++ 5257 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you saying that the purpose is neutral or that the purpose doesn't matter?
03-1693 +++$+++ 5258 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We're saying that in this case, the purpose is about the display of law. We also have an argument later on that this Court should reconsider the purpose in generally as it relates to the Lemon test.
03-1693 +++$+++ 5259 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay, but if we still have a purpose inquiry, what you say of course is true. The current display includes the display of a lot of legal documents. But is there any reason for anyone to believe that that display of legal documents or anything else would be there for any other purpose than the display of the Ten Commandments, including the religious, the overtly theistic part of the text?
03-1693 +++$+++ 5260 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. The District Court actually recognized that one of the omni intended effects of the history is to educate everyone of the difference between an acknowledgment and an establishment. And even if they had a religious purpose under the second display, that religious purpose has been buried and has been abandoned. They voluntarily accepted the --
03-1693 +++$+++ 5261 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're not abandoning the position that you have a right to make this kind of religious display, are you?
03-1693 +++$+++ 5262 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, we're not.
03-1693 +++$+++ 5263 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
03-1693 +++$+++ 5264 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that's why we said that they could have defended the individual first display which was the Ten Commandments alone, in part because it is the uniquely recognized historic symbol of law and is commonplace and thematic in the courthouse. They could have defended when they were originally sued on that basis alone but instead they chose to modify the display. And when they modified the display, it had excerpted sections around it.
03-1693 +++$+++ 5265 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But is there -- I guess -- I don't want to tie you up too long but I mean given the history, isn't it still the case that there is no serious reason to believe that there is any object here other than the display of the Ten Commandments including the overtly theistic text and the rest of this is basically enabling context which does not affect the objective, the objective being the Ten Commandments and the religious text?
03-1693 +++$+++ 5266 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, they must be able to change their misstep, if it was a misstep, that they had. Otherwise, that past case would be superimposed on the foundation's display forever and the question would be --
03-1693 +++$+++ 5267 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, not forever but for now. This isn't a case in which they came up with the Ten Commandments display, it got enjoined and 10 years later somebody comes along and says, let's have a display of important documents in the history of law. This in fact is a continuous process and it is a continuous process within the context of litigation about the constitutionality of the display. It's not a -- the implication is not that you can never have a different display but that there is no reason to believe that the intent of this display has changed as the context has changed. What is your response to that?
03-1693 +++$+++ 5268 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The intent has certainly broadened in this case and there is clearly no evidence in this record that this foundations display is solely purposed or intended to be a religious display. In fact, even the respondents of amici that wrote against us said that on the face of this display, it appears secular in nature. It does. In fact, the foundations display not only has numerous other documents of which the Ten Commandments is only one tenth of these many other document but it also has a foundations document that says what the purpose is about. There is only two places that talk about the purpose on the foundations display. On the document itself, which says it's a display about some documents that influenced American law and government, and the undisputed testimony that these are documents that reflect documents that have influenced American law and government. That's the record before this Court on the foundations display and that is fundamentally different --
03-1693 +++$+++ 5269 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose we go back to the first display. If all that was there was the Ten Commandments, now, in your opinion, was that constitutional?
03-1693 +++$+++ 5270 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is arguably constitutional --
03-1693 +++$+++ 5271 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do we take it along with the resolution of the counties? Do we look at everything?
03-1693 +++$+++ 5272 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, there was no resolution, Justice O'Connor, for the first display. It just went up.
03-1693 +++$+++ 5273 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So just that first display, what was the purpose of that first one?
03-1693 +++$+++ 5274 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The purpose of that first one is like it is in many courthouses around the country. Both courthouses have numerous documents of his historical nature along the walls,284 just in the curia alone. And in Pulaski, many, many documents, when they celebrated their 200th anniversary in 1999. So that was one of many documents that's there and that was a document of the Ten Commandments that was meant to show the historic nature of the Ten Commandments, how it has in fact influenced American law and government in the appropriate setting of a courthouse.
03-1693 +++$+++ 5275 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The original one?
03-1693 +++$+++ 5276 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The original one.
03-1693 +++$+++ 5277 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was there anything there that said we're interested in history and what we're not interested in is having this on the wall as -- to encourage people to study the Bible and to encourage them to study religion and to understand that in their lives, religion should be important and this very solemn secular setting. Nonetheless, religion is important. Is there anything like that on the document itself?
03-1693 +++$+++ 5278 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it was just the document itself in a frame on a wall amongst almost 300 other documents.
03-1693 +++$+++ 5279 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What if its purpose were to demonstrate -- and I quote from one of our earlier opinions -- that we are a religious people whose institutions presuppose a Supreme Being. What if that were its purpose? Would that have made it bad?
03-1693 +++$+++ 5280 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe so, Justice Scalia, because that in fact is an acknowledgement that is part of our history; like in Marsh versus Chambers. That's why this Court has authorized prayers before legislative sessions or suggested that the national motto is constitutional because indeed we are a religious people as this Court has said more than five times. We are a religious people. Our institutions do presuppose the existence of a Supreme Being.
03-1693 +++$+++ 5281 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And is it your position that no real harm is inflicted on people who do not agree with that message?
03-1693 +++$+++ 5282 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. Justice Kennedy, it would not inflict any harm because in this case, it's a passive display in a courthouse in a hallway and you could simply walk past that and avert your eyes once you see this. It inflicts no harm, it does not --
03-1693 +++$+++ 5283 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Staver, what about all the distinctions that have been made between messages that are brief or I think the expression has been minimal or minimum in some of our cases, like in God we Trust, like God save the United States and this Honorable Court, like under God, and a document that is about worshipping the Lord, at least as many words devoted to that topic. So it's not a brief reference. It's a powerful statement of the covenants that the Lord is making with his people.
03-1693 +++$+++ 5284 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, the Ten Commandments is a unique symbol in the area of acknowledgment because of its historic role in influencing our law and government. It is displayed in this context for that unique role. It does have some statements in there about God but, frankly, very few when you look at the overall context.
03-1693 +++$+++ 5285 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Have you read the first four commandments and could you say that?
03-1693 +++$+++ 5286 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure. And those are definitely and decidedly religious. There is no question that the Ten Commandments is a religious document. There is also no question that it has influenced our American law.
03-1693 +++$+++ 5287 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you think the Ten Commandments are longer than the legislative prayers you've heard at the beginning of congressional sessions?
03-1693 +++$+++ 5288 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Scalia. I think they're quite shorter.
03-1693 +++$+++ 5289 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't know how much help I can get or not but I was thinking in terms of the involvement of the government, is the government involved in religion when it posts the Ten Commandments alone? Yes, of course it is. Now, there could be a purpose to it, that they want to just show the history of law but it's all by itself and there is a lot more history than that and context may matter a lot. Not everybody will go with the Ten Commandments just by itself there and say, well, gee, this seems to go too far. This is going too far. Why? Because it isn't really related to history, it's the only thing up there, it's involvement in religion, so forth. Now, suppose I go down that track because what I'm really looking for is a key as to what's too far and what's not. But for present purposes, let's assume it's too far. Now, once they've gone too far there, the next thing that happens is they keep changing it but they change it pursuant to the resolution and it seems as if in context, all they've tried to do is to surround what went too far with a number of other things that would somehow make it legal. Now, if it was wrong to begin with, is it wrong to end with?
03-1693 +++$+++ 5290 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Breyer, it is not wrong to end with any more than it would be wrong to begin with the Sunday laws based upon the Sabbath commandment which was a commandment about worship and the end with the secular reason for keeping those particular laws as this Court has recognized in McGowan. And in this case, even if they started off with a decidedly and only religious purpose, which we contend they did not, they did not end with one and they've got to, as governmental officials, be able to adjust their missteps whenever they step on a constitutional land mine that is sometimes blurry and confusing to them. That's what they tried to do in this case, the best efforts to try to follow this Court's decision when there was really no specific guidelines for them to be guiding their direction. The Ten Commandments that Justice Stevens, you had mentioned about the versions, the versions I don't believe, with all due respect, are relevant in this case or any other case regarding the Ten Commandments because if that were the case, you wouldn't be able to teach the Bible in an appropriate context because there are so many different versions and yet Stone and Schempp has indicated that you indeed can teach even the Biblical text with all of its multiple versions.
03-1693 +++$+++ 5291 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I assume if you were running a course in a school about the biblical text, you would explain the differences. You would indicate the difference between the Jewish, the Roman, the Protestant, the Lutheran and so on and you're not doing that here. I would have thought your answer might be, well, if that really made a difference, we could have separate versions. But it's not comparable to school teaching.
03-1693 +++$+++ 5292 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Justice Souter, it would in fact be somewhat comparable because if you're teaching general biblical text, you wouldn't have all the versions lined out.
03-1693 +++$+++ 5293 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would you think it was appropriate in a public school course that was otherwise a bona fide course to teach the day on exodus, to teach about simply the Protestant version of the Ten Commandments?
03-1693 +++$+++ 5294 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would believe that, in fact, in this case, I don't even think they thought about whether there were different versions but we certainly believe that they could have the text there and talk about the Ten Commandments.
03-1693 +++$+++ 5295 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In a public school, wouldn't it be required, at least for intellectual reasons if not the reasons of the establishment clause to say, well, graven images are dealt with differently in the standard Roman translation and the preamble sections of what may and may not be regarded as commandment number 1 are different in the Christian versus Jewish and so on. Wouldn't that be an intellectually responsible requirement?
03-1693 +++$+++ 5296 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's in a school context which this is a courthouse context.
03-1693 +++$+++ 5297 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Exactly. I thought you were equating the two together.
03-1693 +++$+++ 5298 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not one to one but I think the version issue, if there is a version that flunks the test, it would be this Court's south frieze. It's actually in Hebrew and it speaks only to Jewish people. But yet that's not sectarian such that it violates the establishment clause. That's the acknowledgment as opposed to an establishment. Justice Stevens, if you would like, I would like to reserve the remaining of my time.
03-1693 +++$+++ 5299 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, you may do so. Mr. Clement, you're welcome to stand up for a second time.
03-1693 +++$+++ 5301 +++$+++ FALSE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens, and may it please the Court. The display of historical documents here, like the display in the Lynch against Donnelly case of the creche, may include a religious item without running afoul of the establishment clause. As in the --
03-1693 +++$+++ 5302 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do we have to consider the history of the display at all?
03-1693 +++$+++ 5303 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice O'Connor, we would urge you not to consider the history of the display. You in your concurring opinion in the Pinette case made the point that in the context of accommodations, the inquiry into religious purpose doesn't make a lot of sense and you urged the Court to drop it in that context. I think so too in the acknowledgment context. Certainly if you have a situation where you don't have -- I think in the acknowledgment context as well, a focus on purpose may not be that productive. But I would like to talk about the purpose --
03-1693 +++$+++ 5304 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't know what you mean by the acknowledgment context.
03-1693 +++$+++ 5305 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think this Court has said that you can accommodate religions. They've also said that you can acknowledge the role that religion has played in our society and I think in both contexts, a focus on purpose is probably not a prudent exercise of judicial resources. But I would like to talk about the purpose here because I think what you have here is a display of a document alone in the first instance that certainly was at least defensible and probably constitutional, yet the courts below got off on the wrong foot by saying that the first display was open defiance of this Court's decision in Stone against Graham and I think this Court's cases themselves suggest that the contextual differences between the school and the courtroom are enough to at least make the display not in open defiance. Now there was the second display and we are not here to defend the second display but that was the display that was in reaction to the lawsuit filed against the first display. Now, I don't know if that second display was the product of bad legal advice or simply frustration at the first lawsuit being filed but I don't think it should make a constitutional difference. In the Lynch against Donnelly case, Mayor Lynch, after the ACLU filed a lawsuit against him, had a rally at the site of the creche, a press conference, where he publicly vowed to fight to keep Christ in Christmas and then he led city workers in carols and said they should sing another one that apparently bothers people. Yet despite that adverse reaction to the litigation being filed against the city of Pawtucket, this Court upheld the display and although the dissent did focus on the mayor's crusade to keep Christ in Christmas, the majority and the concurring opinions did not. And I think that is the proper mode of analysis. Now, the second point I think is should these counties be faulted for trying to bring their practices in compliance with the Constitution? And I think the answer there is clearly not. And I was going to point this Court to the Marsh case that's been talked about quite a bit. One of the things that as Professor Chemerinsky said about the Marsh case that this Court emphasized in that case itself and in subsequent cases is the fact that the prayers there were non-sectarian in the sense that they did not directly invoke, say, Christ. But that actually is something of a change that took place after the litigation began. Prior to the litigation, there were explicit references to Christ as Justice Stevens pointed out in footnote 2 of his dissent in that case. But the state of Nebraska, after they had a lawsuit, decided let's make this an easier case for the Court, not a harder case, and they modified their conduct.
03-1693 +++$+++ 5306 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay, but at the end of the day in Marsh, there wasn't any question that what they were doing was praying. And here it seems to me that the change that you're arguing for as significant is only significant unless it is a change in the essential activity because there is no law and it would be crazy law from this Court that said you can engage in religious endorsement, promotions, et cetera, so long as you hide the ball well enough. What this Court basically has said is you can engage in secular objectives that incidentally involve religious figures or references, e.g., Moses up there. What you started with in this case or what the county started with was a pretty religious-looking exercise and the question is, did they go from a totally religious exercise to a secular exercise or did they go from an obviously religious exercise to an obscured religious exercise? And therefore, you can't make context a mere change in physical context dispositive because it ignores that distinction. And that distinction I think is what is driving or what is going to drive possibly in my mind the resolution of this case. What do you say to that?
03-1693 +++$+++ 5307 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, I have two points in response. First of all, what I think would be a crazy way of having a jurisprudence is for the Court to say that this display is a foundation to the law document, it's perfectly constitutional in every other county courthouse in Kentucky except for McCreary County and Pulaski County because of their prior conduct. The second point that I think is important in this context is that I think this Court's establishment clause jurisprudence is already difficult enough to apply without creating the First Amendment equivalent of covered jurisdictions under section 5 of the Voting Rights Act.
03-1693 +++$+++ 5308 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Basically, and I think I understand you, you're saying, and I think you said it earlier, drop the intent clause and basically have a -- try to move toward an objective criterion saying there are some ways you can display religious things and some ways perhaps that you can't and try to develop that kind of objective jurisprudence as distinct from an intent jurisprudence. That's your point, isn't it?
03-1693 +++$+++ 5309 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be my point, Justice Souter, but I also think independent of that point, it is also not a particular productive jurisprudence to really treat different municipalities differently because the mayor in one case may have started with the creche and decided to add the wishing well or in the other case started the wishing well and added the creche. I don't think it makes any sense that if they end up in the same place, the constitutional rules could be the same.
03-1693 +++$+++ 5310 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Clement, you placed heavy reliance on Marsh, which was prayer and it was undisguised and it was permitted to have since the beginning of our nation. Would it be equally compatible with the establishment clause if this Court opened its daily sessions with prayer?
03-1693 +++$+++ 5311 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, I'm not sure that I could the jurisprudence that said this Court could not open its sessions with a prayer but the Capitol can. Now, if there was any difference drawn at all, I would assume it would be a difference based on history.
03-1693 +++$+++ 5312 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm not sure we don't deal with it. I don't know who we're addressing when we say God save the United States and this Honorable Court.
03-1693 +++$+++ 5313 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The kind of prayer that is used to open the legislative sessions which this Court has distinguished from in God we trust, God save the United States and this Honorable Court.
03-1693 +++$+++ 5314 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And as I said, Justice Ginsburg, I think if there were a difference in principle, it would have to be a difference based on history. But I don't think there is -- in this context, I think it is fair to say --
03-1693 +++$+++ 5315 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm asking you what your view is of the compatibility of every federal Court in the country having over the bench a replica of the Ten Commandments and opening each session with prayer.
03-1693 +++$+++ 5316 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, I suppose if the federal courts decided to do that, we would probably try to defend them on establishment clause grounds. I don't think, though, that -- I think that would obviously be a much tougher case than the posting of the Ten Commandments in the outer hallway along with a variety of other documents which I take it to be the first case here. And then the final display that the Court has before it is actually the Ten Commandments in the context of the other secular historical documents. And I think that kind of display clearly is constitutional for the reasons that the display was constitutional in the Lynch case.
03-1693 +++$+++ 5317 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think we have to amend the Lemon test to reach your approach?
03-1693 +++$+++ 5318 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice O'Connor, this Court on a variety of occasions has chosen to simply put Lemon to one side as opposed to overtly amending it.
03-1693 +++$+++ 5319 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think, then, we have to either put it aside or amend it?
03-1693 +++$+++ 5320 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't, Justice O'Connor.
03-1693 +++$+++ 5321 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ To decide this case?
03-1693 +++$+++ 5322 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't. I think it would be prudent, as I suggested at the outset, to make not necessarily a full amendment and eliminate the first purpose prong of Lemon but at least in the acknowledgment context as in the accommodation context we're not going to focus on that. But independent of that, I think many of these Court's cases that were decided even under Lemon acknowledge the principles that municipalities should be rewarded, not punished, nor trying to change their conduct to try to get things right. In Abbington against Schempp, which I think in many respects is a precursor to Lemon because it talked at least about the purpose and effects test and I gather that's about all that's left of Lemon. In that case, this Court held out the promise that it might be permissible for the government to have some use of the Bible in school. Now, when it did that, it didn't except out Abbington township and said, but not for you, Abbington township, because you violated the purpose prong. The Sixth Circuit here has adopted a rule that once mistaken, always condemned and we don't think that has any proper place in this Court's establishment of jurisprudence.
03-1693 +++$+++ 5323 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Clement. Mr. Friedman?
03-1693 +++$+++ 5325 +++$+++ FALSE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens and may it please the Court, three times in the course of a year, McCreary and Pulaski county posted Ten Commandments displays. They variously describe the Ten Commandments as the precedent legal code of Kentucky, the central historic legal document of the State and, finally, as the moral background of the Declaration of Independence and the foundation of our legal system. In the course of the litigation, they announced that under current law, they announced to the curt that uncurrent law, America is a Christian nation and they acknowledge that the purpose of their second display was to demonstrate America's Christian heritage. In this context, it is our position that the current courthouse display reveals both a purpose and an effect to endorse religion. This Court has repeatedly and most recently in the Santa Fe case made clear that it is necessary to look at the content, the context and the history of a display in order to gauge whether or not there is a true secular purpose or whether or not an asserted secular purpose is a sham. We submit here that on this record, the District Court and particularly in the context of an appeal from a preliminary injunction, which we have here, that the District Court had ample evidence from which it could conclude that the asserted secular purpose of McCreary and Pulaski counties was indeed a sham. The counties announced their purpose not only in the content of the display itself but in the resolution that the counties enacted, the identical resolutions that the counties enacted within weeks after the filing of this lawsuit. And in that resolution, the counties make clear that they relied on and cited approvingly the Kentucky legislature's reference to Jesus Christ as the prince of ethics. They made clear that they supported the fight of Alabama Supreme Court justice Roy Moore against the ACLU. They made absolutely clear in their legal papers that they deemed this to be a Christian nation under current law and they made clear that they absolutely intended and believed they had the right to display the Ten Commandments. They did so not in a display of history. They asserted and they intended to do so because of the religious nature of the Ten Commandments. There can be no doubt that the Ten Commandments portrays a religious point of view and is profoundly religious. The Court said so in Stone. There is no serious question about that. The question then here is whether or not the counties, in their current display, have done anything to sufficiently neutralize the endorsing message that is contained in this record. And we submit it has not done so. It now announces that the Ten Commandments are the foundation of our legal system, not just that religion is but that the Ten Commandments, a particular religious code, the word of God, it asserts is the foundation of our legal system. It asserts that the Ten Commandments, the revealed Word of God, provides the moral background of the Declaration of Independence. We think it's clear that the content of the Ten Commandments and the content of the Declaration of Independence deal with substantially different topics.
03-1693 +++$+++ 5326 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose you had a county 100 miles away or a state, a different state, and the same display was put on and the recitation was -- and it was a sincere recitation, that the government simply wanted to recognize that the 10 Commandments has played an important role in the civic lives of our people. Then you have -- they're each up for five years and five years later, some school kids wander by one and they wander by the other. In your view, from what you're telling me, the Commandments are permitted in one location and not the other? I mean, that's the necessary purport of your argument. You may not think that either of them are valid but on this prong of the argument, it seems to me that to differentiate, I just don't understand that.
03-1693 +++$+++ 5327 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think to an extent there is a differentiation because this Court has made clear that any assessment must depend on context. There is no fixed per se rule but rather, the context one must both look at the purpose and the effect. In gauging the purpose, one looks at both the litigation history, the social facts, the content and any changes. Here the District Court had not only the display itself but it had the announced purpose of the county. It therefore was in a unique position to gauge the purpose of the -- the true purpose of these counties. Moreover, it was in a unique position to gauge the effects that the reasonable observer in these small rural Kentucky counties, the reasonable observer assessment of this particular display. And the Court -- McCreary County is a county with only 17,000 people. Whitley City, the county seat, which is not even incorporated, has 1,100 people. The District Court from its chambers in London, Kentucky was well situated to gauge whether or not the reasonable observer, knowing the litigation history of this case and knowing the changes in the forum and the context of this display, would perceive this to be a neutral recitation of history or simply the third in a series of efforts by this county government to post the Ten Commandments because that is what it wanted to post.
03-1693 +++$+++ 5328 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Does that mean forever? What I'm thinking -- let me spell it out. The key words in Stone would be that this was posted, the Ten Commandments, because it would lead to, in the circumstances, the students remeditate, venerate, perhaps, and obey. In other words, their reaction to it would likely be a religious reaction. Now, here if you saw it just by itself, perhaps one would be concerned with the intent or the effect of calling to the viewer's mind the sacred character of the law, which is fine for religious people to do but not necessarily fine for the State to do; and that leads them to venerate, perhaps to meditate, perhaps to consider the relationship in a religious way. If that's the problem, that would exist here only because of the history or most likely because of the history. And if that is the problem, that would dissipate over time because it is the smallness of the audience and their familiarity with the history that would likely produce the similar religious reaction to the display. Now, what's your reaction?
03-1693 +++$+++ 5329 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it's a question of degree and while over time the importance of the purpose may diminish, the purpose does not fully diminish and the effect does not change substantially. It is a question of degree, it is a question of line drawing. Here there is not an effort to incorporate the Ten Commandments into a neutral display or a neutral course of study such as a compare and contrast of ancient moral codes or a comparative religion course such as many of us have taken and schools clearly can offer. It is not a neutral display of law givers like the frieze in this Court. It asserts the primacy of the Ten Commandments. It says the Ten Commandments are the moral background of the Declaration of Independence. It doesn't say there is some commonality between the Ten Commandments and some American laws. It talks not only about law. It talks about our system of government. It says the Ten Commandments, the revealed Word of God is the moral foundation of the Declaration of Independence. That in itself is an endorsement of religion in this context and I don't think that can dissipate over time.
03-1693 +++$+++ 5330 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why is it? It may be true. These pilgrims came for religious reasons. If all you have is a display of the origin of the law in the United States, what would be wrong with saying, this is a historical account? It's like teaching religion in the schools. Of course it stemmed from the religious beliefs of those who came to the United States. You don't mean it religiously. You mean it historically.
03-1693 +++$+++ 5331 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's the difference between acknowledgment and endorsement. Of course counties and other governments can acknowledge the role that religion played in history. That is very different from acknowledging religion as a general matter and asserting that a specific code that is central to specific religions is the one -- not only the one religious source but the one source, religious or moral, that provide -- religious or secular that provides the moral background of the Declaration of Independence.
03-1693 +++$+++ 5332 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't care it stands for that. As you heard, the code takes various forms for various religions. And I think all it stands for is the proposition that the moral order is ordained by God. That's all it stands for. And to say that that's the basis of the Declaration of Independence and of our institutions is entirely realistic.
03-1693 +++$+++ 5333 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What this display says --
03-1693 +++$+++ 5334 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't think they're really saying that the particular commandments of the Ten Commandments are the basis of the Declaration of Independence. That's idiotic. What the commandments stand for is the direction of human affairs by God. That's what it stands for.
03-1693 +++$+++ 5335 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Whatever the merit of that statement, that is not what these counties have said. What these counties have said in their resolutions is that the Ten Commandments are the precedent legal code of Kentucky and the central historic legal document of the state. What they have said in this display itself, in the explanation of the display, that they are the moral background of the Declaration of Independence, to the exclusion of all others, in effect. When you say the, it doesn't say one of. It says it is the foundation of our legal system. It doesn't say it had an influence on some of our laws. It asserts the primacy, the actual text of this display asserts the primacy of the Ten Commandments.
03-1693 +++$+++ 5336 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If that's what it means, it's idiotic. I don't think anybody is going to interpret it that way. You can't get the Declaration of Independence out of the Ten Commandments.
03-1693 +++$+++ 5337 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would agree with that, Your Honor.
03-1693 +++$+++ 5338 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I don't think that's how somebody would normally read it. I think what they're saying is the principle of laws being ordained by God is the foundation of the laws of this state and the foundation of our legal system.
03-1693 +++$+++ 5339 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How long is that resolution going to guide our view of the future displays or even the present one? What about the membership of the board of supervisors is changed? How long do we look to that particular resolution?
03-1693 +++$+++ 5340 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think, Your Honor, it's an element that the District Court in the first instance must accept and gauge in determining whether or not the announced secular purpose is indeed a true purpose or is a sham. Where we're talking about a close time period, here three displays in less than a year by the same officials of the same county trying to post the same document, this case becomes very close to the Santa Fe independent school district case where it's a moving target in direct response to pending litigation as an effort to try to get the same end result and changing the operative facts just slightly in the hope that eventually it will be right.
03-1693 +++$+++ 5341 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask you a question on that point? And I should know the answer. It must be in the briefs but I don't remember. I assume that they rescinded the resolution before version 3 of the display was put up, is that correct?
03-1693 +++$+++ 5342 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is not correct, Your Honor. The resolution was enacted in early December 1999, a couple of weeks after the display. It has never been rescinded.
03-1693 +++$+++ 5343 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It is still on the books?
03-1693 +++$+++ 5344 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is still on the books. A point is made in the reply brief, it is not a binding resolution, it encourages the county judge executive to post the Ten Commandments as part of a historic display. It doesn't say post a display of documents and have a county judge choose to post the Ten Commandments. The initial paragraph of the resolution makes clear that it encourages the county judge to post the Ten Commandments and then as part of a historic display. The county judge did that. The District Court enjoined that display. The county appealed that injunction and then, after getting new lawyers, dropped its appeal. Soon after that, the county posted a third display, again, the Ten Commandments with what it called historic documents, leaving aside how the Stars Spangled Banner or the national motto as a historic document. What it did is wrap the Ten Commandments in the three or four secular documents that we all clearly acknowledge as the root of the American system of government. It did so pursuant to the same resolution. There has never been another resolution, it has not been rescinded. The resolution is there. It cites Jesus Christ as the prince of ethics, it cites legislative allusions to Jesus Christ. I think the resolution, which is cited in the joint appendix of the docket number, makes it clear that the purpose of this county was to post the Ten Commandments and to do so because of the religious nature of the Ten Commandments because of the primacy in its view of the Ten Commandments. That's what it focused on. That's what this litigation history has revealed throughout and that's what the District Court found at least at the preliminary injunction stage, which is where we still are. There has been no evidence taken in the case, no discovery taken in the case to suggest anything other than what the District Court found. And on this record, I submit that there can be no conclusion other than that the purpose of the county in posting the series of displays was to post the Ten Commandments because of their religious nature and the effect on the reasonable observer who knew what was going on, who was there to see what was transpiring in this small county was clear to the District Court. The District Court doesn't operate in a vacuum. And this Court has made clear that courts cannot turn a blind eye to a sham secular purpose. The District Court not only saw the displays, heard the arguments of counsel, saw the resolutions of the District Court, of the fiscal Court. The fiscal Court is the legislative branch of government in Kentucky. The District Court also was there in the community and could see both the public reaction, the letters to the editor, the keep the Ten Commandments signs on yards throughout the county.
03-1693 +++$+++ 5345 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is all of that in the record?
03-1693 +++$+++ 5346 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is not in the record.
03-1693 +++$+++ 5347 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Then I don't think we should talk about it.
03-1693 +++$+++ 5348 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The District Court was well situated to understand the social fact, historical record and arguments of both the lawyers and the parties and the statements of the parties.
03-1693 +++$+++ 5349 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Friedman, can you tell me where in the joint appendix the resolution appears?
03-1693 +++$+++ 5350 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Joint Appendix page 1, number 5, and it's Exhibit 1 attached to it. And that's the one of the counties. The other one is -- and these are the docket entries. The document itself is not in the joint appendix. And the other county is joint appendix page 28, number 6. They're both Exhibit 1s attached to those documents. Those documents are the county's motions to dismiss in the District Court.
03-1693 +++$+++ 5351 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's not printed?
03-1693 +++$+++ 5352 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is not in the appendix itself, no. The resolution is not in there. The citation to it from the index is there.
03-1693 +++$+++ 5353 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It is in the record which we have?
03-1693 +++$+++ 5354 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is in the record. It was submitted in fact by the petitioners in this case. They submitted the resolution in support of their arguments defending the second display, the display that surrounded the Ten Commandments with the religious text. They made clear in that brief that they were asserting their right to display the Ten Commandments as part of their argument that the purpose was to demonstrate America's Christian heritage. I submit that in that brief, in that resolution, in the repeated statements of the county officials and of their counsel, the District Court was well within its discretion to determine that the purpose here was religious, was not secular and that the effect, as viewed by the reasonable observer, was religious -- was to endorse religion, not secular. If there are additional questions, I would be happy to answer it.
03-1693 +++$+++ 5355 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The other question I have is assuming you didn't have any of this history and they started off with plan 3, would that have violated the establishment clause?
03-1693 +++$+++ 5356 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, I think it would. It would be a closer question but in this context, what we have is the assertion that the Ten Commandments are the source, the moral background of the Declaration of Independence, the foundation of our legal system. It is not incorporating the Ten Commandments as part of a neutral course of study. It is not like having Moses along with 15 other or 15 law givers. It is the assertion of the primacy of the Ten Commandments.
03-1693 +++$+++ 5357 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't understand the difference. I mean it seems to me it would violate the establishment clause, it would equally do so if you said it's a major part of or even a part of. Now, maybe it makes it wrong to say it's the exclusive one. It may make it more wrong but we're not grading papers here. It seems to me that whether it violates the establishment clause depends upon whether you're endorsing -- whether you're proselytizing religion.
03-1693 +++$+++ 5358 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's correct, Your Honor.
03-1693 +++$+++ 5359 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What does primacy have to do with it?
03-1693 +++$+++ 5360 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it makes it an easier case when it asserts this is the one rather than one of several or one of many.
03-1693 +++$+++ 5361 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But your real position is they wouldn't have to have done that as long as they had the Ten Commandments in the display, that would be enough?
03-1693 +++$+++ 5362 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it depends on the content and context of the display.
03-1693 +++$+++ 5363 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Exactly what we've got in Exhibit 3 or whatever it is, that we don't have the statement of purposes, we don't have them saying it's the sole source of the primacy. They say it's a source. Does that still violate the establishment clause?
03-1693 +++$+++ 5364 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it does, Your Honor.
03-1693 +++$+++ 5365 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Since you have a minute, give me your opinion to the right standard if hypothetically you start with the Goldberg-Schempp idea, that the government is not absolutely forbidden by the establishment clause to recognize the religious nature of the people nor the religious origins of much of our law and so forth but it's easy to go too far and it's easy in this area you are trading on eggs to become far more divisive than you hoped and really end up with something worse than if you stayed out in the first place. In other words, it's a very delicate matter and it's very easy to offend people. Now, suppose you start with that. You're trying to define what is too far constitutionally speaking. What's your test? Of the many that have been in our opinions, which do you think works the best for that purpose or some other?
03-1693 +++$+++ 5366 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the Court's endorsement test has stood the test of time and has worked well. It allows the District Courts that are most familiar with what is actually happening to look at both the purpose and the effect of a particular display. I don't think there can be an ironclad rule. There can be presumptions. There can be brighter line tests perhaps. But I think ultimately --
03-1693 +++$+++ 5367 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Within reason outline an approach that would say a religious display is presumptively for -- is a presumptive endorsement. I think with the Baptist brief. Would you endorse that test?
03-1693 +++$+++ 5368 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We think that test can work very well in a context like this where we're talking about the display of religious texts rather than just symbols. And the point I think is well worth considering, that we assume that when people post signs or displays, bumper stickers, buttons, that they endorse the content of that text and that the presumption then would place a burden on government to make sure that it is neutralizing the endorsing effect of displaying text. I think that is a very workable text in a context like this where we're talking about the posting of core religious texts.
03-1693 +++$+++ 5369 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would you explain why you distinguish text and symbolize them? You distinguish text from the crucifix and so on. Why?
03-1693 +++$+++ 5370 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does depend entirely on context, to be sure, but symbols are subject to alternative interpretation. Text is not. Or text rarely is. And text such as this, religious text, cannot be seen as anything other than the revealed Word of God. I mean, here we have 120 words in the first four Commandments, 142 in the first five Commandments of this display that is a profound, detailed explication of core religious content, core religious meaning.
03-1693 +++$+++ 5371 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I understand the text part but why not adopt the same test for the symbols? For example, why not adopt it for the Moses? The burden would be on the government to show that it was not approving, endorsing, et cetera, and in this context, that would be pretty easy. Why not have the same test?
03-1693 +++$+++ 5372 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is no reason why it couldn't be applied just as well. My point was simply that it's even easier to do it when there is text. The Court doesn't need to go so far as to decide whether to apply it to both text and symbol, though it certainly could. It need only go so far as say when government posts religious texts, it must be presumed to endorse the content of that text. It's a little more difficult when you're talking about symbols, depending on what the symbols are. Some symbols are far more sectarian such as the Cross, such as the Star of David, than other symbols. At least when there is text involved, one presumes that the display of text is an endorsement of the content of that text unless the content and the context make clear that it is neutralizing. The examples are obvious. The display of religious art in a government owned art museum, the playing of religious music by a government symphony orchestra, the context of the orchestra, the context of the museum are sufficient to neutralize the religious message that is contained in the display itself. Here -- and the same thing I think would be said of a comparative religion course or a compare and contrast ancient moral code course. There there is not an endorsement of a particular code, a particular text but rather a neutral educational display about several alternative ones. That is different from taking one religious code, one revealed Word of God, placing it next to the revered documents that frame the American Republic and saying, these are all alike, these are worthy of equal reverence. That is simply wrapping the Ten Commandments in the flag and, with all due respect, that constitutes endorsement. Thank you.
03-1693 +++$+++ 5373 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Friedman. Mr. Staver, you have about three minutes left.
03-1693 +++$+++ 5375 +++$+++ FALSE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, the argument before this Court was unlike anything that went down in the District Court or the Circuit Court of Appeals because never was a resolution ever mentioned. Never did the District Court or the Sixth Circuit ever discuss the resolution. It was not mentioned in this Court until this answer brief by respondents was filed. It is not part of the District Court's decision, it was not part of the Circuit Court of Appeals. The District Court said that what imprinted every action thereafter with defiance in a taint is the mere posting of the first display. There was no resolution for that display, none is needed. There is no resolution for the foundations display.
03-1693 +++$+++ 5376 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was there a resolution, Counsel?
03-1693 +++$+++ 5377 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For the second display, yes, Your Honor, there was.
03-1693 +++$+++ 5378 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And whatever is in the record is that resolution?
03-1693 +++$+++ 5379 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is that resolution but it is specific to the second display because it specifically mentions what kind of documents are in that display. It is not a general display regarding posting of documents. In this case, when of the Court --
03-1693 +++$+++ 5380 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But is it correct that it was not amended when the third display was created?
03-1693 +++$+++ 5381 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was not amended because it was not -- it was relevant and fact-specific in the display itself.
03-1693 +++$+++ 5382 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It is the last expression of the governing body's intent?
03-1693 +++$+++ 5383 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. What's the last expression is the foundations display which clearly a reasonable observer would see. And if there is any doubt regarding --
03-1693 +++$+++ 5384 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But there hasn't been a new resolution.
03-1693 +++$+++ 5385 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is not a new resolution.
03-1693 +++$+++ 5386 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that one wasn't rescinded?
03-1693 +++$+++ 5387 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That one died, Your Honor, with the Court's ruling.
03-1693 +++$+++ 5388 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It was adopted and it still is there, presumably?
03-1693 +++$+++ 5389 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Presumably. There is nothing in the record that suggests what happened to it. Whether it was repealed or not. But it was specific factually only to that second display, not to the foundations display which the District Court found was fundamentally different. And if there is any doubt regarding the history of purpose, we would suggest, Justice O'Connor, your suggestion in the Wallace, that if there is any doubt regarding purpose, to look to the effects prong. And I think when you look to the effects prong, a reasonable observer will see that this is a constitutional display. This case is one in which the Sixth Circuit drew the most difficult hate, it imposed it in a subsequent action in the most difficult area of the establishment clause and clearly the public officials have substantially and fundamentally changed. They can't live under this taint forever. They tried but they could to correct their way. They tried what they could to display this in a constitutional manner so that anyone passing by would see this as one document among many others. In addition to the display itself, with all the other hundreds of documents that are on the wall, this display has a specific stated purpose.
03-1693 +++$+++ 5390 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So presumably these things are open if it goes on to the final hearing? The preliminary injunction stage?
03-1693 +++$+++ 5391 +++$+++ TRUE +++$+++ MR. STAVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, the preliminary injunction. And the fact that the resolution is technically latent on the books, they are will repeal that, they repudiate that resolution. Thank you.
03-1693 +++$+++ 5392 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you. The case is submitted.
03-1693 +++$+++ 5393 +++$+++ TRUE +++$+++ CLERK OF COURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The honorable Court is now adjourned until Monday next at 10 o'clock.
03-1696 +++$+++ 5397 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We will now hear argument in Exxon Mobil against Saudi Basic Industries. Mr. Coleman, I trust you will soon tell us why the case is not moot or whether you think it's moot, and if -- if not, why not.
03-1696 +++$+++ 5399 +++$+++ FALSE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Good morning, Justice Stevens. May it please the Court: I will begin with that, if you would like. This case is not moot because there is an ongoing case or controversy between the parties. There is a judgment, it is true, from the Delaware State court, which has now been affirmed by the Delaware Supreme Court. But preclusion doctrines not Rooker-Feldman and not mootness govern the resolution of the claims that we asserted first --
03-1696 +++$+++ 5400 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what financial interests do your clients have to keep litigating today in another court?
03-1696 +++$+++ 5401 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know the --
03-1696 +++$+++ 5402 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's going on? I mean, it's very confusing.
03-1696 +++$+++ 5403 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, certainly, Justice O'Connor, we've not yet recovered on our judgment and that judgment is still there. It is still in existence. We've not yet collected on it. But I don't believe that mootness turns on whether you have, in fact, collected on a judgment. There are very few cases out there in which a party has, in fact, obtained two judgments, one from a State court and one from a Federal court, usually because a party waived the application of preclusion doctrines. And -- and we have conceded previously that that's not our interest. What is our interest here is that we have asserted Federal jurisdiction. This case was brought in Federal court by SABIC. During the course of discovery, we found some things out that they had been overcharging us and we indicated that we were going to bring claims against them in Federal court. They ran down to Delaware court by forum shopping in order to try to obtain a shorter statute of limitations, which turned out for them to be a strategic blunder of monumental proportions. But the Federal case, when we filed it, those claims had original jurisdiction in Federal court. They have not yet been resolved in a proper way. We --
03-1696 +++$+++ 5404 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But do you have a continuing case or controversy? That was -- that -- that's a bedrock Article III requirement, and if you've got all the relief that you were seeking -- let's put it this way. Suppose your opponent SABIC says, here's the check for the $417 million and we undertake that we're not going to pursue any further relief. Would you have a case or controversy left?
03-1696 +++$+++ 5405 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. We might not have an interest in pursuing the case, but we have a legal interest in terms of Article III case or controversy. It is well established that the -- the fact of taking a judgment does not make a case moot. In fact, if there were a holding that we think that the Federal case were moot --
03-1696 +++$+++ 5406 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if you've got all the relief to which you are entitled, that does make a case moot.
03-1696 +++$+++ 5407 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In terms of cases that involve injunctive relief where it is impossible for a court to give you the relief that you have -- that you are seeking, that is true. But when you are seeking money damage, it is at least theoretically possible -- we're not saying that we're going to ask for that, but at least theoretically possible that the Federal district court could still give us relief. And therefore, what we are asking for is --
03-1696 +++$+++ 5408 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What relief could it give you?
03-1696 +++$+++ 5409 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what for?
03-1696 +++$+++ 5410 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What relief? If you're paid in full, what -- what relief are you entitled to?
03-1696 +++$+++ 5411 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we think the relief that we're entitled to, in terms of this, is for the case to be remanded for the district court to resolve these issues under preclusion doctrines.
03-1696 +++$+++ 5412 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what issues would -- would the district court resolve?
03-1696 +++$+++ 5413 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Preclusion.
03-1696 +++$+++ 5414 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if you win on the preclusion --
03-1696 +++$+++ 5415 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Who cares?
03-1696 +++$+++ 5416 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- what do you get then in substance?
03-1696 +++$+++ 5417 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't necessarily intend to take a -- another judgment in Federal court.
03-1696 +++$+++ 5418 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then what do you intend to do? If you win on preclusion, what do you do then?
03-1696 +++$+++ 5419 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, hopefully we'll win on preclusion with respect not only to this suit, the New Jersey II suit, but also the New Jersey I suit, which we say the district -- or the Delaware judgment precludes.
03-1696 +++$+++ 5420 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I think we'd like an answer. Justice Ginsburg gives us -- gives you a hypothetical case. You've got the money. The judgment has been discharged in the State courts. What is left to do in the Federal court?
03-1696 +++$+++ 5421 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is likely --
03-1696 +++$+++ 5422 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, the one answer I heard you give, well, we're interested in preclusion to say -- well, that's all historical at that point. Who cares?
03-1696 +++$+++ 5423 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it is likely, Your Honor -- and we have previously said -- that we may very well dismiss the case of our own accord. But that doesn't mean --
03-1696 +++$+++ 5424 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We're looking for -- we're looking for something that makes the case live.
03-1696 +++$+++ 5425 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our claims are alive. There are claims there that seek relief --
03-1696 +++$+++ 5426 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But we're -- we're questioning why that is and we're asking you what relief you need to get that you wouldn't get in the hypothetical that Justice Ginsburg posed.
03-1696 +++$+++ 5427 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We thought we would not seek further monetary relief.
03-1696 +++$+++ 5428 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So what --
03-1696 +++$+++ 5429 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you know how many claims in this case that -- that were not in the Delaware case?
03-1696 +++$+++ 5430 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We have affirmative defenses to the New Jersey I, but -- but the claims in New Jersey II and Delaware are the same, Your Honor.
03-1696 +++$+++ 5431 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is your answer that you might want equitable relief, an injunction to continue making payments in the future, or something like that?
03-1696 +++$+++ 5432 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. We're not seeking additional monetary or equitable relief.
03-1696 +++$+++ 5433 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You -- you would be stuck anyway because you made a counterclaim and -- and it would be -- on which you prevailed. And in that counterclaim you would be precluded if you didn't ask for everything that you could get. But -- but at this stage at least, the -- the door -- there -- there is still conceivably an avenue of further litigation because, SABIC hasn't yet said that it's not going to do anything more, that it isn't going to petition for cert, for example.
03-1696 +++$+++ 5434 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And, indeed, Your Honor. I mean, SABIC has represented to the Court that it likely intends to seek certiorari relief from this Court in the Delaware suit.
03-1696 +++$+++ 5435 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it has --
03-1696 +++$+++ 5436 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So if they do, it's not finished.
03-1696 +++$+++ 5437 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is not finished --
03-1696 +++$+++ 5438 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, all right. I'll ask them that.
03-1696 +++$+++ 5439 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Getting back to the Rooker-Feldman issue, which is the issue on which the Court granted cert, Rooker-Feldman is a narrow, limited doctrine, but it bars only appellate review not parallel litigation in Federal district courts. Rooker-Feldman is not a theory of vanishing original jurisdiction, nor is it a jurisdictional substitute for the preclusion analysis mandated by Congress in the Full Faith and Credit Act. The expansive interpretation asserted by SABIC misperceives the fundamental nature of appellate review. It's untethered to any natural negative implication in 28 U.S.C. 1257. It illegitimately displaces the application of section 1738, the Full Faith and Credit Act, in most cases to which it is traditionally applied, and it serves absolutely no useful purpose.
03-1696 +++$+++ 5440 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the problem that bothers me -- and I don't know that there's an answer to it -- is you have plaintiff. Plaintiff goes into State court. He brings a lawsuit, a tort suit, a contract suit. And then he decides he'd also like to go to Federal court. He brings exactly the same suit. And here we have two suits and exactly the same thing running along at the same time. Now, I know there are principles from this Court's case law that says, well, that's what's supposed to happen. They've always bothered me. But now let's take a special instance. The special instance is that in court one in the State, the plaintiff loses. Now, what he decides to do is to say to the Federal court, we want you to review what they did in the State court. Can't do that. Right?
03-1696 +++$+++ 5441 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-1696 +++$+++ 5442 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. So he brilliantly figures out I will omit the word review from my -- from my motion. I will ask for precisely the same thing just not use that word review. I will ask them to go and make their decision which happens to be -- in my opinion should be -- 100 percent the opposite of what the State court did showing they're wrong. But I won't use the word review. Now, you say because he cut the word review out, he can do it.
03-1696 +++$+++ 5443 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Breyer. It's not because he cut the review out. Rooker-Feldman is an issue of appellate -- the exercise of appellate jurisdiction. So what does appellate jurisdiction mean? Well, appellate --
03-1696 +++$+++ 5444 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Coleman, would you clarify, I think, in response to Justice Breyer's inquiry? Rooker-Feldman both involved State court litigation that was over and done with. Then you come to the Federal court. You have two parallel cases would be -- brought within a month of each other?
03-1696 +++$+++ 5445 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Within 2 months of each other. Within a month of each other, Your Honor.
03-1696 +++$+++ 5446 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And isn't the standard defense of the person who has started the other suit first, well, Your Honor, prior action pending, please hold the case that started second in abeyance till we get done? And if we win in the first case, then it will be precluded. Then the second case -- the parallel case will be precluded. That's not Rooker-Feldman territory.
03-1696 +++$+++ 5447 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's -- that's -- Your Honor, that's our position that -- concurrent jurisdiction is a separate issue from the appellate review issue that Rooker-Feldman raises. Justice Breyer, the answer to your hypothetical is that appellate review is something different from having a parallel action. Appellate review is probably best defined by two characteristics that I'll try to flesh out for you. The first is that the proponent alleges some sort of injury-causing error by the trial court and not by the adversary and then seeks an order reversing, vacating, or otherwise nullifying that lower court order. When a party alleges an injury by his adversary rather than the trial court, the most that can really be said is that you are continuing on a parallel litigation but not that you are seeking appellate review. You do not have what looks like appellate review. You're not alleging errors by the lower court. You're not seeking an order that directly nullifies or otherwise undoes the State court judgment.
03-1696 +++$+++ 5448 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but the argument -- it seems to me the argument is that in a de facto sense, when you try to litigate the Federal case, after losing the State case, you in effect are asking the Federal court in some sense to review what happened in the State court. Justice Ginsburg's answer to that is preclusion is the answer. Is that your answer?
03-1696 +++$+++ 5449 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
03-1696 +++$+++ 5450 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because if that -- if that is -- if we accept that as the answer, then there's no argument for saying you should expand Rooker-Feldman to include the de facto review as opposed to the -- the very strict sense of review that you're talking about.
03-1696 +++$+++ 5451 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is absolutely our position, Justice Souter, that preclusion addresses all of these issues.
03-1696 +++$+++ 5452 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but can you -- can you expand on this a little? I'm not taking a view on it. I'm trying to clear up what's a confusion in my mind. I see how you could do this on the parallel business with -- with delaying it on the docket and using the doctrine of preclusion. I understand that. But we've still got this doctrine called Rooker Feldman out there, and as long as you have that doctrine, it strikes me as odd if -- say, it weren't a plaintiff. Say it was the losing party, you know, that was asking the Federal judge, Judge, you have this case on your docket. Let's move it up. Let's decide it now. He doesn't use the word review, but everything else is the same. He wants a decision out of that court that is going to be the opposite of what the State court did. And what's concerning me -- maybe I shouldn't be concerned, but what's concerning me is whether he can get it or not seems to turn completely on whether he uses the word review in the petition.
03-1696 +++$+++ 5453 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't -- I don't think that that is true. It should not and does not turn on the words that you use in your petition. What it turns on is the fundamental nature of the injury that you claim and of the relief that you seek. One reason why you don't need to be necessarily concerned about this is that in all of these cases in which one case has gone to judgment and there is a -- either a continuation or a new case, preclusion is going to cover these. The only extension of Rooker-Feldman that SABIC is asking for is what they call the actually litigated test. That is the heart of the Full Faith and Credit Act.
03-1696 +++$+++ 5454 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Rooker-Feldman, if I understand it correctly, is a subject matter jurisdiction bar. Is that --
03-1696 +++$+++ 5455 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. It --
03-1696 +++$+++ 5456 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. And --
03-1696 +++$+++ 5457 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- it arises from a negative implication taken from section 1257 and a second negative implication from 1331.
03-1696 +++$+++ 5458 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, to -- so if the two lawsuits, the State court suit and the Federal suit -- they're proceeding concurrently or one is held in abeyance waiting the other, there is certainly subject matter jurisdiction in the Federal court of the Federal action.
03-1696 +++$+++ 5459 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-1696 +++$+++ 5460 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ To apply Rooker-Feldman in that context would say you had subject matter jurisdiction at the outset, but then you lost it somewhere down the line.
03-1696 +++$+++ 5461 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and -- yes, Justice Ginsburg. And that's a distinction between your hypothetical and Justice Breyer's. Justice Breyer's, as I -- if I understand it correctly, is that the Federal suit starts after the State court is done. Yours is where you have parallel actions at the same time. And where the Federal claims are parallel or even filed first, as in our case, you can't say that the moment you file those that you're seeking review of some nonexistent State court judgment. You're simply asking for relief from something that your adversary did to you. And the argument that SABIC makes that the court relinquishes jurisdiction has no basis or justification in anything this Court has ever said. It is a theory of vanishing jurisdiction that I cannot understand.
03-1696 +++$+++ 5462 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose --
03-1696 +++$+++ 5463 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Coleman, can I interrupt with a question?
03-1696 +++$+++ 5464 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of course.
03-1696 +++$+++ 5465 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it your position that what should have been done in this case, not in the hypothetical case, is the trial court should have just stayed the action pending the outcome of the Delaware case?
03-1696 +++$+++ 5466 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And, in fact, that's what the Federal district court had done, Your Honor.
03-1696 +++$+++ 5467 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And that's what -- he did -- that was correct.
03-1696 +++$+++ 5468 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-1696 +++$+++ 5469 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And then when the Delaware case was over, then what should he have done?
03-1696 +++$+++ 5470 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we could either ultimately dismiss it or the Federal district court could say, looks like your Delaware case is over. SABIC brings a motion --
03-1696 +++$+++ 5471 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and he has given you all the relief your entitled to. Therefore, you go ahead and dismiss the case.
03-1696 +++$+++ 5472 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, or SABIC brings a motion --
03-1696 +++$+++ 5473 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And therefore, my next question is why shouldn't we do exactly that now.
03-1696 +++$+++ 5474 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the question before the Court today is a question of jurisdiction, not of practical consequences other than the mootness question that SABIC has raised. But practical consequences are that what we may --
03-1696 +++$+++ 5475 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, maybe we could vacate the judgment of the court of appeals, say that was wrong, but still, order it dismissed after we vacate the judgment.
03-1696 +++$+++ 5476 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think, as in Feldman, that's a question that should be first addressed by the district court. Certainly we hope that you will vacate or reverse the Third Circuit's judgment and allow the district court to address those issues. Perhaps we dismiss it.
03-1696 +++$+++ 5477 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if you don't tell us what issue remains, I don't know why we shouldn't just direct the suit to be dismissed.
03-1696 +++$+++ 5478 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There -- there is a live -- in -- in the terms of Article III, there are live claims that remain pending before the district court. And while it is true --
03-1696 +++$+++ 5479 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I take it that's because you don't have the cert period expired yet in the first action and you don't have the check.
03-1696 +++$+++ 5480 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At the very minimum --
03-1696 +++$+++ 5481 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. It's -- if the 3 months is expired and the check is in your hand and it's certified, what's left?
03-1696 +++$+++ 5482 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As a practical matter, we have no intention. As a jurisdictional matter, there's still --
03-1696 +++$+++ 5483 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm not asking about your intention. Let's assume you do intend to litigate further. What for?
03-1696 +++$+++ 5484 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If we did intend to litigate further, SABIC would be entitled to go to the district court and say they can't. They are precluded.
03-1696 +++$+++ 5485 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I want -- I want an answer to my question. What are you going to litigate for? What's left?
03-1696 +++$+++ 5486 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, again, setting aside our intentions and hypothetically, there are cases in which --
03-1696 +++$+++ 5487 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm talking about your case. What's left?
03-1696 +++$+++ 5488 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We -- we do not seek -- will not seek any further review from the district court.
03-1696 +++$+++ 5489 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Nothing is left.
03-1696 +++$+++ 5490 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-1696 +++$+++ 5491 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, suppose you don't have the check. What's left?
03-1696 +++$+++ 5492 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the case is still up in the air.
03-1696 +++$+++ 5493 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why?
03-1696 +++$+++ 5494 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because --
03-1696 +++$+++ 5495 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You have a judgment.
03-1696 +++$+++ 5496 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the case -- the case is not over. Indeed, because the State --
03-1696 +++$+++ 5497 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I never heard of a case that isn't over until you get the check. I thought the case is over when you have the judgment. (Laughter.)
03-1696 +++$+++ 5498 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And then if they don't give you the check, you have a different matter. We have to get it enforced.
03-1696 +++$+++ 5499 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is a different matter. But as a matter of Article III jurisdiction, Your Honor, the -- the mootness doctrine does not apply to a situation where you have a judgment and it doesn't necessarily apply the moment you get paid.
03-1696 +++$+++ 5500 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose that you lost in the State court and the judgment is final. You then go to Federal court. Are -- is there a context in which Rooker Feldman might then be applicable? This is all hypothetical.
03-1696 +++$+++ 5501 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our argument is that it would be applicable only if the injury that we claimed in our Federal suit was an injury caused by the State court -- the court itself or the judge rather than our adversary and we sought relief from that judgment. That would obtain the nature of appellate jurisdiction rather than we say, well, SABIC did us wrong, we'd like a judgment. And then SABIC can come in and say, well, they're precluded. They already tried that.
03-1696 +++$+++ 5502 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In other words, if you had some ongoing relation and, in this hypothetical, the State court ruled against you and you went in to try to reverse that ruling, that would be -- that would Rooker-Feldman.
03-1696 +++$+++ 5503 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. If we alleged harm from the court and sought relief from the court's judgment.
03-1696 +++$+++ 5504 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There were only the two cases, Rooker and Feldman, that established this.
03-1696 +++$+++ 5505 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-1696 +++$+++ 5506 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Has this Court ever said anything to suggest that Rooker-Feldman, as apart from preclusion doctrine, applies to parallel litigation instead of you go into Federal court after the State court is over and you're trying to undo what the State court did?
03-1696 +++$+++ 5507 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think this Court has ever held any such thing, and I think it would be inconsistent with at least Feldman itself. The idea of -- of appellate jurisdiction over the constitutional claims in Feldman that were held not to be barred comes down in the end -- SABIC says, well, those claims weren't actually litigated. But the opinion itself on page 467 points out that the Mr. Feldman had raised his constitutional claims in front of the D.C. Court of Appeals in terms of asking for his waiver. And when I checked the oral argument transcript from the Feldman case, it was mentioned specifically in terms of Mr. Feldman had raised the constitutional claims in front of the D.C. Court. And that's on pages 9, 14, and 16 of the LEXIS version of the oral argument transcript.
03-1696 +++$+++ 5508 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there's no preclusion unless they're also decided.
03-1696 +++$+++ 5509 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Well, yes. The district court could then decide whether in fact they were precluded, and -- and it's likely that they were. I didn't follow up on what happened when the case went back down on remand. But the Court said, we're not going to decide that. We will allow the district court to address that in the first instance. And so we think that the actually litigated revision of Rooker-Feldman is simply inconsistent with Feldman itself, that it improperly displaces full faith and credit that is not true to the negative implication from section 1257 which has to be a very narrow implication, indeed, because 1257 gives this Court jurisdiction, and it's only appellate jurisdiction, to suggest that another court doesn't have that appellate jurisdiction must be -- must be narrowly limited to the context, the type of lawsuits that this Court would seek, which is not simply they did me wrong, please -- please give me money, but rather, that lower court erred. It violated my rights. It is structurally or in some -- in violation of Federal rights or something that the court did and that you have been asked to fix. That, we think, is consistent with the proper negative implication from 1257, but overrunning most of preclusion law simply is not. For these reasons, we would ask the Court to reverse. And, Justice Stevens, I would like to reserve the remainder of my time.
03-1696 +++$+++ 5510 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You may do so. Mr. Castanias. I hope you'll tell us also whether you think the case is moot before you're through.
03-1696 +++$+++ 5512 +++$+++ FALSE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: This case is moot. There is nothing for Exxon Mobil to get at this --
03-1696 +++$+++ 5513 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you're still asking for cert.
03-1696 +++$+++ 5514 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, and that's --
03-1696 +++$+++ 5515 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, then why is it moot? Because something could happen. We might get this case in theory, take it on cert, and discover a jurisdictional problem that somehow destroys the case without a decision, and should that happen, there luckily for them they have this other case going. So as long as -- you're prepared, I take it, to say you're going to ask for cert. If that's what you're going to say, I don't see how the case is over. It's up to you.
03-1696 +++$+++ 5516 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. Well, I'm -- I'm not going to take the Hobson's choice, Your Honor, but I am going to tell you, first of all, that SABIC is going to apply for cert. At least that's my current understanding. And second of all, that shows why this case is not justiciable at this point because if the most likely event in the -- in the event of this Court's review of the Delaware determination, is a reversal on a statute of limitations problem. That's the reason this suit was brought as the, quote, insurance policy that the Third Circuit identified, which was if the Delaware Supreme Court or the Delaware Superior Court had kicked this suit on the ground of the 3-year statute of limitations -- and if you look at page 20a of the supplemental brief, the corrected supplemental brief that we filed with the Court, including the Delaware Supreme Court's opinion, you'll see that they had a whale of a time getting over the plain language of their own statute.
03-1696 +++$+++ 5517 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. If for -- somehow you won on that, even though it sounds a little like a State law issue, but nonetheless, if you won on that and they reversed it as a statute of limitations, then what they're saying is, well, that's just why we filed in Federal court. We didn't want the Federal court to review the State court. We wanted our Federal court suit as an insurance policy in case something goes wrong with the State court suit. It has nothing whatsoever to do with Rooker-Feldman. It is parallel adjudication, just what he said. Now, what's your response?
03-1696 +++$+++ 5518 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My response, Justice Breyer, is twofold. First of all, with regard to the mootness question, if that eventuality occurs, that's the time when there may be a justiciable issue for a Federal district court. Not now. We've been talking about ifs and hypotheticals and what may happen in the future.
03-1696 +++$+++ 5519 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Castanias, was there a proper case in the district court when the complaint was initially filed there some 2 months after you filed in Delaware?
03-1696 +++$+++ 5520 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We've never disputed that, Justice Ginsburg.
03-1696 +++$+++ 5521 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. So you can bring two cases, identical cases, in two different courts, and that's an everyday thing, and the defense is prior action pending.
03-1696 +++$+++ 5522 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-1696 +++$+++ 5523 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, you are urging that Rooker-Feldman which this Court never applied when you had parallel litigation be extended into a domain which is ordinarily taken care of by preclusion doctrine. Why would you want to mix those two things up that now seem to me rather clear, that if you have Rooker-Feldman, when you rush into a Federal court and say, Federal court, undo that State court judgment, I don't like it? Rooker was just a paradigm case of that. Why would you want to spread that doctrine? What is -- what is there that preclusion doctrine doesn't accomplish?
03-1696 +++$+++ 5524 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Ginsburg, preclusion doctrine may accomplish this in a certain number of cases, but I think it's important -- and I think I have to correct my colleague on the other side here with regard to the state of the record. Yes, there was a stay of the New Jersey II trial court litigation, but it wasn't because of the Colorado River application that we made. In fact, if you'll look in the appendix to the petition --
03-1696 +++$+++ 5525 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I'm not talking about anything fancy like Colorado River. Prior action pending is a familiar defense. You've got two actions. They could even be in different districts of the same State and one says, Your Honor, this case started second, the other one is going forward, hold it abeyance because there's a prior action pending. That's not Colorado River abstention or anything like that.
03-1696 +++$+++ 5526 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I think, Your Honor, you will see that that is a component of Colorado River, and that was part of the application that we made to the district court in this case under Colorado River. And my only answer -- the only reason that I'm bringing this up, Justice Ginsburg, is that if you'll look in the appendix to the petition for certiorari, you will see that SABIC, my client, made an application for Colorado River abstention, and the district court denied that. The district court denied that in this case.
03-1696 +++$+++ 5527 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, sometimes district judges rule incorrectly, but -- but what happened here is the district court case did not go on because the two of you, both sides, said, okay, the district court -- they're all bollixed up with this Foreign Sovereign Immunity Act, so we're going to agree. You agreed that the case would go forward in Delaware, the trial in Delaware. Is that not so?
03-1696 +++$+++ 5528 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it was -- it was -- if you'll look at -- I believe this is at page 8a of the addendum to the red brief. You'll see that it was Exxon Mobil that pushed in Delaware, but that actually happened before the ruling on sovereign immunity, that -- that they elected to go forward in Delaware.
03-1696 +++$+++ 5529 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, when you say they pushed in Delaware, you brought them into Delaware and a -- in a reverse suit. You wanted a declaration of non liability.
03-1696 +++$+++ 5530 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-1696 +++$+++ 5531 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They brought their case for liability in the Federal forum. They were forced by you into the Delaware forum, and now you're saying you were pushed, that Exxon pushed. You brought the case in Delaware. They didn't.
03-1696 +++$+++ 5532 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We -- that is true that we brought the initial case, but the case was eventually tried on their counterclaims. The case was inverted to make them the party plaintiff. They went first at trial and is it -- at the page I cited to you, that was where they decided to go forward with the Delaware case.
03-1696 +++$+++ 5533 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it was your preferred forum, not theirs. When they filed their complaint, they filed it in New Jersey where they had a related case pending. So you chose the forum.
03-1696 +++$+++ 5534 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that is absolutely the case with regard to the Delaware matter. But I think what your question is getting at -- and I think I have to go back a couple of minutes in our colloquy here to talk about why abstention won't do the work in this case. In the lion's share of cases, it probably will, Your Honor, but in this case it didn't. And this brings me back to Justice Breyer's question which said -- in which he said that -- that concurrent jurisdiction has always bothered him because what you're ending up with is a race to judgment. But it's important again, Justice Breyer. It's a race to judgment.
03-1696 +++$+++ 5535 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's -- you see, Justice Ginsburg answered that. I -- I mean, she wasn't answering my question, but she did say what was a perfectly satisfactory approach, that -- that the second person says, you know, Judge, there's another one pending and the judge says, okay, we'll let that go first except in some unusual instance.
03-1696 +++$+++ 5536 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which happens thousands of times in -- in all of the courts. It's very common and I don't know why we're over-designing this vehicle. It's simply other action pending. End of case.
03-1696 +++$+++ 5537 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy --
03-1696 +++$+++ 5538 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or end of argument, not end of case. (Laughter.)
03-1696 +++$+++ 5539 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So why isn't it that the end? I mean, here it's not moot. They filed the other action. You point out that you not only think something could wreck the State claim, you would love it to wreck the State claim. And -- and therefore, they have this insurance policy in Federal court which they'll gear up if and when the State claim does get wrecked as you hope.
03-1696 +++$+++ 5540 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, I think this is the point in the argument where I want to turn to the definition of review as this Court has -- has put it forth in cases like ASARCO. This is a case that Exxon Mobil dismisses in their reply brief as mere dictum. I don't think that this -- the discussion of Rooker-Feldman and the ASARCO case can be dismissed as dictum in that it was a specific response to a specific proposal by the United States appearing as amicus to dismiss the case for lack of standing and instead remit plaintiffs to pursuing a second suit. In that case, the Court wrote that to re adjudicate -- and I'm quoting here from the opinion, and I don't have the particular page here -- to re-adjudicate the very same issues that were determined in the State court proceedings would be -- again quoting -- in essence, an attempt to obtain direct review of the Arizona Supreme Court's decision in the lower Federal courts. In ASARCO, there was no reference to what the intent of the plaintiffs was. There was no reference to what the timing of the lawsuits was. It was simply that identical issues actually litigated.
03-1696 +++$+++ 5541 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So perhaps the Court, if it had been more cautious, would have spoken not in terms of Rooker-Feldman or review, but in terms of this matter has been decided. It is claim-precluded. That's what preclusion doctrine is supposed to do. So in that context, maybe this Court used the wrong word. Maybe it should have said, you litigated it, it's over and done with, now it's precluded. Why do you need to interject the word review? Isn't that -- unless you're going to say every time court A decides a case and then you're in court B and someone is raising the same claim, that is a review of court number one rather than you're precluded in court two because of what is -- has been litigated and decided in court one.
03-1696 +++$+++ 5542 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, first of all, Justice Ginsburg, I'm hesitant to say that this Court was incautious in its use of words. This was --
03-1696 +++$+++ 5543 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It is sometimes.
03-1696 +++$+++ 5544 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- understandably, but -- but with regard to -- with regard to Rooker-Feldman, it was not just -- it was not just an accidental -- incidental invocation of it. It was the reason for the rejection of the argument. The reason was not res judicata. The reason was respect for the dignity of the State court's work in the case, and that's ultimately --
03-1696 +++$+++ 5545 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's why one has preclusion because you are giving respect, full faith and credit, to a decision elsewhere. That's what preclusion doctrine is all about. We respect the judgment of the court that rendered it. We, therefore, give it full faith and credit. That's what preclusion doctrine is about, is about respect and credit. Isn't that so?
03-1696 +++$+++ 5546 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- that's -- that is -- that is generally right, Justice Ginsburg, but at the same time, there -- we all agree -- Exxon Mobil, SABIC, and the decisions of this Court -- that there has to be some overlap with regard to Rooker-Feldman and SABIC -- and -- excuse me -- and -- and preclusion doctrine. The -- the argument made by Exxon Mobil, which is, in essence, the same question you're asking me, would have destroyed any reason whatsoever for the Rooker and the Feldman cases, as well as the ASARCO case. There's also a significant body of law that's body of law that's been built up over the last 85 years in the lower courts in -- in this regard. And --
03-1696 +++$+++ 5547 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you --
03-1696 +++$+++ 5548 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So some of the lower courts have given a broad interpretation to Rooker-Feldman and have turned it into something other than the narrower view of it. And I think that's why we granted cert in this case, to decide whether to give it a broad or a narrow interpretation. The Third Circuit applies a rather broad interpretation of it.
03-1696 +++$+++ 5549 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I guess in that respect, Justice O'Connor, I disagree because the Third Circuit, admitted by its own words, applies a very narrow version of Rooker-Feldman. And, in fact, using this case as the vehicle to decide this, the -- the definition of Rooker-Feldman in this instance amounts to no more than barring jurisdiction in a second Federal suit over the identical claims. This is not a case where you have to worry about claims that might have been brought, the sort of things that footnote 16 in Feldman dealt with.
03-1696 +++$+++ 5550 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But maybe that isn't a proper application of Rooker-Feldman where the complaint is not about something the State court has improperly done.
03-1696 +++$+++ 5551 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-1696 +++$+++ 5552 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It isn't. And so in that sense, the Third Circuit has a rather broader view of it I'd say.
03-1696 +++$+++ 5553 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, to be sure, Justice O'Connor, the Third Circuit's view is broader than that which appears to be adopted by the Ninth Circuit, as well as the Seventh Circuit. And I think this brings me back to the definition of review. The -- the Ninth and Seventh Circuits' views in our estimation are wrong because they strictly look to the subjective intent of the plaintiff and as to whether the plaintiff is, in fact, seeking reversal. That -- that's the term that's used in these cases. Noel says seeking to set aside. But section 1257 --
03-1696 +++$+++ 5554 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, that's the language that was used in both Rooker and Feldman too I think.
03-1696 +++$+++ 5555 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that's because, Justice Stevens, that's -- that was the particular fact pattern of this -- of that case.
03-1696 +++$+++ 5556 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that's the only fact pattern any of our cases have dealt with.
03-1696 +++$+++ 5557 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- in the Supreme Court, that's right.
03-1696 +++$+++ 5558 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the -- and the concern is I think -- at least as I understand the -- the concern with it, it -- it boils down to something like this. Somebody comes along and says, don't apply claim preclusion. Don't apply it because, for whatever reason, there's this -- there's something wrong here, and -- and Federal court should determine the -- in fact, the -- the claim preclusion of the State judgment should not apply. The answer to that is, look, that's an issue to be raised by way of appeal of your State judgment. You don't appeal State judgments in Federal court. Out. There's no such claim being made here. The only claim that's being made here or the only conceivable claim, I guess, that can be made here is that we might want to do some litigating in the Federal case after the State case is over. There's no claim here that claim preclusion should not apply in that instance, and because there's no such argument that claim preclusion does not apply, the answer to the problem that you're worried about is simply claim preclusion doctrine. There's no reason to add a perihelion or something onto Rooker-Feldman to deal with what is really a very simple problem and that is, if they try to relitigate anew in Federal court, as Justice Ginsburg says, you -- you plead claim preclusion. Simple. Why do we need to complicate it beyond that simplicity?
03-1696 +++$+++ 5559 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Souter, I -- I don't have any qualms with the application of claim preclusion here. The -- the Third Circuit, though, was being -- was being sensitive to the interests of the State courts, as well as sensitive to the fact that it had another jurisdictional issue in front of it, which was subject matter jurisdiction under the FSIA. And I'm -- I'm certain, as certain can be, that that court would have reached the same result if res judicata had been before it. But the -- the fact is that Rooker-Feldman is there and, again, as -- as with my response to Justice Ginsburg earlier, your -- your question would effectively rub out any need for even Rooker and Feldman themselves.
03-1696 +++$+++ 5560 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, no, because the -- it -- it would not rule out the need to have some answer when someone in a Federal court comes along and says, don't apply claim preclusion, whatever the reason may be. Don't apply the claim preclusion rules. There's something unfair about doing it here. The answer to that is, look, what you're really asking us to do, when you say don't apply claim preclusion, is to review what happened in the State court, and we don't sit as an appellate court on State courts. So there's still something for Rooker Feldman to do on, as it were, Justice -- Justice Ginsburg's claim preclusion argument.
03-1696 +++$+++ 5561 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Souter, I think again, with respect to the hypothetical that you've put to me, the claim preclusion is appropriately --
03-1696 +++$+++ 5562 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It'll get the -- it'll get the job done that you say will need to be done if you get to that point.
03-1696 +++$+++ 5563 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it should get the job done.
03-1696 +++$+++ 5564 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why won't it?
03-1696 +++$+++ 5565 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there -- there are -- first of all, there are no guarantees. The -- the preclusion doctrines are -- are riddled with exceptions.
03-1696 +++$+++ 5566 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then -- then you --
03-1696 +++$+++ 5567 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The preclusion doctrine --
03-1696 +++$+++ 5568 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then -- then you appeal. Don't ask for a new body of law. Just say, look, you got the application of claim preclusion wrong in this case. We're going to appeal.
03-1696 +++$+++ 5569 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I disagree, Justice Souter, that -- that we're asking for anything like a huge, new body of law or that the Third Circuit was making a huge, new body of law.
03-1696 +++$+++ 5570 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you're asking us to extend Rooker-Feldman beyond where this Court has taken it, and if I recall correctly, you really didn't ask for this. The Third Circuit injected Rooker-Feldman into the case. Is that not true?
03-1696 +++$+++ 5571 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's true, Justice Ginsburg, but it's true because of the briefing cycle. When we briefed the case, there was no Delaware judgment. And it was only on the eve of oral argument --
03-1696 +++$+++ 5572 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Castanias --
03-1696 +++$+++ 5573 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-1696 +++$+++ 5574 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- could -- could I come back to mootness? One -- one could say that not only is claim preclusion the answer to Rooker-Feldman, it's also the answer to the asserted mootness here. I mean, you -- you don't have to move to dismiss it as moot. All you have to do is move to dismiss because of a prior adjudication that has resolved this question. Do you know of any case in which the existence of a prior judgment in another court has been held to render a suit that someone wants to press to get a second judgment moot? I mean, you'd think there would be a case on that, and I suppose the reason there isn't is that because the other side is always going to plead res judicata.
03-1696 +++$+++ 5575 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, or the other side is going to give up.
03-1696 +++$+++ 5576 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or give up. But is there any case in which mootness is established by the fact that there is a prior judgment of another court giving you what you are asking for from this Court?
03-1696 +++$+++ 5577 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Scalia, in the -- in the realm that we're talking about here, the Fourth Circuit's decision in the Friedman's case came to a mootness conclusion. We've also cited in our brief -- and I don't recall the names of them off the top of my head -- two cases in which the Court either -- either dismissed or remanded for consideration of mootness in light of another State court judgment. So I think there is -- there is a body of law, but I also know that it is -- as recently as yesterday looking at Wright and Miller on this issue, that when complete relief has been accorded by another tribunal, that is the classic case of mootness.
03-1696 +++$+++ 5578 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I -- I don't know why -- well, if it's -- if it were so classic, there would be a lot of cases, and I don't -- I'm not sure that any of yours are right on point. And -- and I think the reason is that you don't need it, that claim preclusion is -- is the remedy for the party who wants to get out of it.
03-1696 +++$+++ 5579 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, and again, I'm -- I'm certainly not going to fight claim preclusion because this is a suit that should not be here. This is -- this has had moving parts since we -- since the petition was granted with the Delaware Supreme Court ruling and now with yesterday's denial of reargument in the Delaware Supreme Court. What --
03-1696 +++$+++ 5580 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is it moot? Or even on -- why does claim preclusion apply? I mean, if you win, from what you've said -- somehow convince us that this refusal to apply the State statute of limitations properly violated some Federal law, let's say -- then that would show that the State statute of limitations applied and barred their claim. Would that be sufficient to knock out the Federal suit too?
03-1696 +++$+++ 5581 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure I understand the question, Justice Breyer.
03-1696 +++$+++ 5582 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, is -- does the State statute of limitations, if -- if it applied to the State's case, does it also apply in the Federal cases, the identical ground that everybody agrees that the State statute governs?
03-1696 +++$+++ 5583 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the -- there could be -- there could be issue-preclusive grounds on such a ruling, Justice Breyer, but -- but --
03-1696 +++$+++ 5584 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, if you -- if you win, then -- then -- if you win your State case, because of the argument you made, do you also automatically win the Federal case? Is it the same issue?
03-1696 +++$+++ 5585 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I don't think I could say that at this point because --
03-1696 +++$+++ 5586 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it may not be the same issue. Then -- then they say, okay, it's not going to be claim preclusion, and you'd have to say insofar as it's not the same issue, it's not claim preclusion. And therefore, they could proceed with their Federal case, which is what they want to do I guess.
03-1696 +++$+++ 5587 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and that is a future event.
03-1696 +++$+++ 5588 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. So we can't say it's moot in any -- and we can't say there's an alternative basis where they'd win, can we? I mean, I'm saying -- I'm thinking if we get into conference, we're discussing this case, and I say, well, I have to think this through, is it the case that if you're right and you end up winning in this Court, that their case in Federal court is over? I think no, it may not be. The answer is it may not be. Then this is not moot at all. This is not claim-precluded at all. They then might proceed with their Federal claim.
03-1696 +++$+++ 5589 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I guess, Justice Breyer --
03-1696 +++$+++ 5590 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that right or not?
03-1696 +++$+++ 5591 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think it's right.
03-1696 +++$+++ 5592 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because?
03-1696 +++$+++ 5593 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and I think the reason it's not right is because that just shows that there's no live controversy right now. That's a controversy that might happen in the future.
03-1696 +++$+++ 5594 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, well, but that -- that isn't fair to them because, for all I know, they filed the Federal case because there's a different statute of limitations, say, that governs it that will have expired if you don't let them file it by the time -- until this whole thing is over. They just wanted it as protection.
03-1696 +++$+++ 5595 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, two answers to that, Justice Breyer. First of all, that seems to be a -- a place for State doctrines of tolling to apply, not Federal law. Second of all, this Court in -- in Heck against Humphrey, which we cited in our brief, solves this --
03-1696 +++$+++ 5596 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's explaining the unclear by the incredibly hard to understand.
03-1696 +++$+++ 5597 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. I'm sorry, Justice Breyer.
03-1696 +++$+++ 5598 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's explaining the unclear by reference to the incomprehensible. But go ahead. (Laughter.)
03-1696 +++$+++ 5599 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think I wrote that opinion. (Laughter.)
03-1696 +++$+++ 5600 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And indeed, you did, Justice Scalia.
03-1696 +++$+++ 5601 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I never did like it. (Laughter.)
03-1696 +++$+++ 5602 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I've also gotten that impression. But -- but Heck I think teaches an important -- Heck teaches an important lesson for this case as well, which is that Heck was just a suit for money damages, just like this suit. And -- and yet, this Court said that there's going to be no cause of action under section 1983 because of the intersection of 1983 and habeas. Well, we have the same result here. There should be no Federal court case here because of the intersection of section 1257 --
03-1696 +++$+++ 5603 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no, because it's where you walk in the door. And you started out by saying this case, I think as you must, was a proper Federal case. It was properly filed in -- and it was properly filed in Delaware. So you can't talk about a case that says, if you've got this kind of case, you go in this door. If that kind of case, you go in that door. You have a case here that could go in either door, the Federal, the State. The usual rule is, is it not, that if Federal jurisdiction attaches, it doesn't get lost because of subsequent events. For example, if a defendant moves into the plaintiff's State and the only basis for Federal jurisdiction is diversity, subject matter jurisdiction isn't lost, is it?
03-1696 +++$+++ 5604 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, and in fact, the case that's cited against us for that proposition, the Freeport McMoran case, makes clear, in the portion of it not cited by Exxon Mobil, that that rule is limited to the diversity context. And it's not -- it -- it does not have its genesis in statute, but it's in policy. We don't want to keep people from moving across State lines. We don't want to -- want to impede their -- their free movement. So we're going to look at it at the time of filing. But what we have here is a case where maybe it was original jurisdiction when the case was filed, but it's not original anymore.
03-1696 +++$+++ 5605 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Maybe. It's not -- it's not maybe --
03-1696 +++$+++ 5606 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in this case, yes. In this case, yes. But original jurisdiction when the case was filed but not anymore because there's nothing original about it.
03-1696 +++$+++ 5607 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ A case can become moot, but we've already expressed considerable doubt whether that is the fate of this case. The notion -- you used it derisively -- the insurance policy. Lawyers bring protective actions all the time, don't they? There's nothing wrong with doing that.
03-1696 +++$+++ 5608 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I guess I come back to -- to where I started with Justice Breyer on the -- on the merits of the Rooker-Feldman issue this morning, which is that the concurrent jurisdiction is something to be dealt with. This Court has an uneasy body of law in the abstention area dealing with the issue of concurrent jurisdiction, but what it doesn't have is anything that deals with judgments, once you get to a judgment.
03-1696 +++$+++ 5609 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you? It's perhaps an unfair question. The Chief Justice generally likes to confine our attention to cases of this Court rather than the courts of appeals for our primary guidance, and most of the Rooker-Feldman law is court of appeals law, as we -- we both know. Going back just to Rooker and to Feldman, those two cases, and putting aside ASARCO for a minute, which of those two cases do you think provides you the stronger support, if indeed any support, between Rooker and Feldman?
03-1696 +++$+++ 5610 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I would have to say that Feldman, of the two of them, is probably stronger support.
03-1696 +++$+++ 5611 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that is the case in which the court of appeals was itself a party to the litigation.
03-1696 +++$+++ 5612 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. But at the same time, the -- the Rooker case also dealt with relitigation of the identical issues. And if I could just sum up here, seeing that the light is on here, the issue in this case is limited to identical lawsuits, identical claims. The Third Circuit's decision in this case, if it constitutes an extension of Rooker-Feldman at all, is only a modest extension because it recognizes, consistent with ASARCO, consistent with Heck, and consistent with the very notion, Justice Souter, of de facto appeals, not actual appeals, but de facto appeals being prohibited by the doctrine -- it recognizes that claims actually litigated in a State suit to a judgment, if they are litigated anew in the Federal court, that is de facto appellate review. The judgment of the Third Circuit should be affirmed.
03-1696 +++$+++ 5613 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Castanias. Mr. Coleman, you have 8 and a half minutes left.
03-1696 +++$+++ 5615 +++$+++ FALSE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I'll take just a few of them, Your Honor. I believe the concession that the Federal court exercised original jurisdiction at the time our case was filed is an important concession because I simply do not see yet still any rationale for this idea of vanishing original jurisdiction. I also see the concession made in response to -- to your question, Justice Breyer, about what happens if they win on the statute of limitations issue. Well, one of the cases they cite on page 12, footnote 5 of their brief, the Northern Natural Gas case itself makes clear -- and there are other cases. They went to Delaware to apply the Delaware statute of limitations. They conceded in front of the Delaware Supreme Court that even if they had won that, it wouldn't bar another lawsuit in a different forum applying a different statute of limitations. The only way they could even hope to get the shorter statute was in Delaware. The Delaware statute would never apply to our Federal claims, so that if somehow it went back on that procedural ground, it would not bar a trial in Federal court. We don't think that that's likely to happen, but that is another explanation yet of why it's moot. We also cited to the Court the Male case. It is an old case, but it does make clear that when there is the question of jurisdiction before the court and some other court rules on the merits, that does not make the case moot. In fact, you really wouldn't have a need for claim preclusion if that were the rule in -- in mootness, because once the case is final over there, they'd all be moot, and you wouldn't need to apply --
03-1696 +++$+++ 5616 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that depends on who wins.
03-1696 +++$+++ 5617 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You're right.
03-1696 +++$+++ 5618 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, if you lost in the other suit, your claim here wouldn't be moot. I mean, it -- it would be precluded, but it's certainly not moot.
03-1696 +++$+++ 5619 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I think that's right. I'd also like to address, just very briefly, the ASARCO question. The language that the Court used in there we don't necessarily think was loose or inappropriate, Justice Ginsburg, and the reason was the Court cites at that point an amicus brief by the United States and it cites a particular footnote. And what that footnote says is it's a recommendation that the mining company in that case could file a Federal lawsuit seeking a judgment that the invalidation of the statute was not necessary. But by challenging the invalidation itself, that -- that looks more like a direct challenge to the State court judgment. It's not simply a relitigation. So that behind the Court's language there -- and of course, it was really just addressing standing. It was not directly addressing Rooker-Feldman. But the U.S.'s suggestion in that case was a suit challenging the State court judgment, and in that situation, it looks more like appellate review, more likely to infringe upon Rooker Feldman-type interests. In the end, we believe that preclusion doctrines adequately cover all of this, that it is not true --
03-1696 +++$+++ 5620 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Coleman, I don't mean to take your time, but in the ASARCO case, was the State court judgment final at the time in dispute?
03-1696 +++$+++ 5621 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, there's a question about that. I mean, the Court kept jurisdiction, but there was a determination that the statute was invalidate -- was invalid and then a remand back to the district court for further proceedings.
03-1696 +++$+++ 5622 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because if the judgment were final, then that would fit right into your -- your analysis, if the judgment of the State court were final.
03-1696 +++$+++ 5623 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, it would.
03-1696 +++$+++ 5624 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
03-1696 +++$+++ 5625 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the -- at the end of the day, we believe that this Court's preclusion jurisprudence is not riddled with vagaries, that it's not difficult to understand, and that it's certainly not more vague or difficult than the borrowing that they are attempting to do to bring existing preclusion doctrines into -- in order to expand Rooker-Feldman. Preclusion is the answer in this case. We believe that the district court should be permitted to address that in the first instance, and we would ask the Court to reverse the judgment of the Third Circuit. Thank you.
03-1696 +++$+++ 5626 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Coleman. The case is submitted.
03-184 +++$+++ 5630 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ The Court will now hear argument in Ballard against the Commissioner of Internal Revenue. Mr. Shapiro.
03-184 +++$+++ 5632 +++$+++ FALSE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens, and may it please the Court: Judge Cudahy stated in his dissent in the Seventh Circuit that disclosure of the rule 183 report in this case should be required on both statutory and constitutional grounds. As Judge Cudahy put it, there is no item of more significance in evaluating a Tax Court's decision on fraud than the unfiltered findings of the STJ.
03-184 +++$+++ 5633 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Shapiro, can this case, in your view, be decided solely on the statutory question?
03-184 +++$+++ 5634 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, yes, Your Honor. We believe it can.
03-184 +++$+++ 5635 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There also are due process allegations, and I'm not sure I even quite understand what the precise due process violation is that's alleged. But I would like you to address both and to tell us, first of all, how it would be resolved solely on a statutory basis from your perspective.
03-184 +++$+++ 5636 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The readiest ground for decision is the statutory basis, and we believe that the statute is a good means to avoid a complex due process question. There are two statutes that are key here. One is the appellate review statute. The other is the public record statute. The public record statute says all reports of the Tax Court are public records, and we're talking about a report of the Tax Court in this case. The legislative history of that provision shows Congress had the broadest possible intent to make all practices in the Tax Court completely transparent. All steps in the adjudication were supposed to be --
03-184 +++$+++ 5637 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, would that include -- if a Tax Court judge had a law clerk, would it include law clerk memos to the judge?
03-184 +++$+++ 5638 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We -- we don't take that position. It refers to reports of judges, and this is a report of a trial judge who heard the witnesses. The report is presumed correct under rule 183. It's the only independent evaluation of witness credibility --
03-184 +++$+++ 5639 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, why -- why do you say that?
03-184 +++$+++ 5640 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and the only judge --
03-184 +++$+++ 5641 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you elaborate for this reason? Because the briefs and you again today keep talking about that first document. You use the word report.
03-184 +++$+++ 5642 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-184 +++$+++ 5643 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, to me that's the whole conclusion of the case. I'm prepared to assume, at least for the moment, if you can convince me that that's the report they're talking about, you'd win. But that isn't what the Government says. The Government says that's a piece of paper, preliminary. We -- like my draft. I write drafts all the time. So -- so do trial judges. And he goes and brings the draft to the other two judges and says, let's sit down and talk about it. And they sit down and talk about it, and he changes his mind and writes a different document. And that different document, of course, is totally public. The whole opinion of the Tax Court. There is that document.
03-184 +++$+++ 5644 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is only one rule 183 report. Under the rule, it's the report the trial judge prepares and submits to the chief judge at the completion of the trial, which contains his independent credibility findings.
03-184 +++$+++ 5645 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How do we know that? Now -- now, what is the answer specifically in the statute? Let's call it document 1 and document 2. And it really didn't help me that much in the briefs to see document 1 continuously labeled with the word report when I thought that's the key question. Is it? Is it that report they're referring to? So now, go ahead.
03-184 +++$+++ 5646 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under rule 183(b) there is a report denominated as such. There's no question here it was submitted to the court. If you look at page 114a of the Kanter appendix, it says that the special trial judge submitted a report, as required by rule 183(b). And this case was then referred to Judge Dawson. He had no involvement with the case until this report was given to him.
03-184 +++$+++ 5647 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which --
03-184 +++$+++ 5648 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry.
03-184 +++$+++ 5649 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which -- which brief --
03-184 +++$+++ 5650 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh. It's the petition for cert. The Kanter petition.
03-184 +++$+++ 5651 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ At least --
03-184 +++$+++ 5652 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what page did you say?
03-184 +++$+++ 5653 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what page?
03-184 +++$+++ 5654 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ 114a, 114a. And throughout --
03-184 +++$+++ 5655 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Shapiro, why don't you simply read the text of 183(b) --
03-184 +++$+++ 5656 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-184 +++$+++ 5657 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- which is in the Government's brief at 4a? It says, special trial judge's report. It is the only report to which the Tax Court rules refer.
03-184 +++$+++ 5658 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. And it's --
03-184 +++$+++ 5659 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and if in fact --
03-184 +++$+++ 5660 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- it is presumed correct.
03-184 +++$+++ 5661 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you rely on the rule, do we even have to resolve the issue of meaning of report in the statute? Can't we simply, from your position, rely on the rule and say you've got to follow your own rules?
03-184 +++$+++ 5662 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. This is a report that must be submitted. It is presumed correct under this rule. It's an independent evaluation of credibility from the only judge who heard the witnesses, and of course, it's part of the record. And it doesn't --
03-184 +++$+++ 5663 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you've really got three arguments. You've got the rule. You've got the statute, and you have due process.
03-184 +++$+++ 5664 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And it doesn't make the slightest difference that the superior judge caused the subordinate judge to say, I have changed my mind at a later stage in the proceeding, because it is the original report that is presumed correct under the rules.
03-184 +++$+++ 5665 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Now, what -- what was the page? Please. You're going quite -- and I want to -- because Justice Ginsburg referred to a statement in the Government's brief that you said yes --
03-184 +++$+++ 5666 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, not the Government's brief. The Tax Court rules.
03-184 +++$+++ 5667 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's -- that's appendix 4a.
03-184 +++$+++ 5668 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ 4a of the Government's brief.
03-184 +++$+++ 5669 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's the rule.
03-184 +++$+++ 5670 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it's the rule itself, 183(b). And it makes it clear that there must be a report filed with the chief judge. The docket here says that that was done.
03-184 +++$+++ 5671 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can you make the argument that -- maybe you can't -- that the special trial judge can go to the Tax Court judge, with the permission of the chief judge, and say, now, here's what -- kind of what I'm thinking? It's not my report, but here's what I'm thinking. And then the -- the Tax Court judge says, well, why don't you have some more findings on X and Y and Z? He says, okay, and then he goes back. Can you make the argument that that first document is not the report?
03-184 +++$+++ 5672 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The first -- there is only one --
03-184 +++$+++ 5673 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I guess another way of saying it is, do the rules permit any consultation before the report is submitted? I -- I guess that's my question.
03-184 +++$+++ 5674 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The rules are silent on that, but Judge Dawson has no involvement in the case until the report is submitted. Then the case is assigned to Judge Dawson, and then he is supposed to review it under a presumptive correctness standard. So it would be surprising if there were consultation of that sort. But what we contend is if there is consultation behind the scenes about credibility determinations, then it is critically important that the report be submitted and made part of the record and not concealed, and that the deferential standard of review be --
03-184 +++$+++ 5675 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would -- would that problem be overcome if the special trial judge simply -- if his -- the proceedings before him were simply videotaped and then the reviewing judge, Judge Dawson in this case, could look at the trial proceedings and would have as much of a notion of the credibility of the witnesses as the special tax judge?
03-184 +++$+++ 5676 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I suppose that's a possibility, but in Anderson, the Court said absent some procedure like that, the trial judge is uniquely situated to evaluate demeanor and tone of voice, and because of that, great deference has to be given to the independent evaluation of the trial judge. Maybe in a -- in the future the Tax Court would want to use a procedure like that to mitigate the Raddatz problem that they now have.
03-184 +++$+++ 5677 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In which case, they -- they might well revise the language of their rule.
03-184 +++$+++ 5678 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, they -- they might, and --
03-184 +++$+++ 5679 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which currently requires that the finding of facts of the trial judge be presumed to be correct.
03-184 +++$+++ 5680 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, and after all, we should remember that the Government was supposed to present clear and convincing evidence of fraud in this case, and if there was a flip-flop of this sort going on behind the scenes, leaving no trace in the record, what could be more important to the reviewing court than to know what had occurred at the first stage and the second stage here? If the trial judge found no underpayment and no fraud, which we have reason to believe he did -- three Tax Court judges stated that to us -- if that was -- that was his finding and he found our witnesses to be credible, then an unexplained overturning of that credibility determination with no trace in the record would surely be a candidate for reversal on appeal.
03-184 +++$+++ 5681 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let -- let me ask this question, if I may. Suppose the -- a special trial judge hears the witnesses, makes a report. It's assigned by the chief judge to a Tax Court judge, and the Tax Court judge looks it over it and says, you know, before I -- before I really spend a lot of time on this, you really didn't explore these three problems. Would you please do it over again? Is he permitted to do that or is that a violation of the rule that he shall presume the report to be correct?
03-184 +++$+++ 5682 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we haven't challenged the conversations as such. We think it is -- it is suspect, however. Under Raddatz, if somebody who has not heard the witnesses is telling somebody who has heard the witnesses, I don't agree or I think you may be wrong in your credibility determination, I'd like you to reconsider that, that's a serious Raddatz problem. And the only cure for that is to make the first report part of the record.
03-184 +++$+++ 5683 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm asking if it's a violation of -- of the rule.
03-184 +++$+++ 5684 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
03-184 +++$+++ 5685 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because the -- the rule says a special report shall be presumed to be correct.
03-184 +++$+++ 5686 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-184 +++$+++ 5687 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if there's this initial review, he says, you know, I think it's really pretty incomplete until you do X, Y, Z, please do it over again, is that a violation of the rule?
03-184 +++$+++ 5688 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think the rule is silent on that, but the spirit of the rule, frankly, is that the STJ does his job. He completes his report. He submits it, and the reviewing judge examines it under a presumed-correct standard in -- in the same orderly fashion that ordinarily occurs when there is an initial judgment from a -- from a trial judge about credibility with deferential review that comes later. But the rule doesn't tell us much about these consultations, and we do submit that if -- if they do take place, as the Government suggests, there's importuning and changing of minds going on through consultations, do this on record. Turn square corners because it would be quite important to the appellate court to know if there was a good reason for the overturning of these credibility determinations. And we -- we've seen that kind of review in the Stone case in the D.C. Circuit, which is very similar to this case. Factually the cases are quite similar. And the reviewing court, Judge Williams, found clear error based on what the rule 183 report stated about witness credibility. There was an elaborate explanation why particular witnesses were credible and incredible, and the court could use that to evaluate the judgment of the Tax Court.
03-184 +++$+++ 5689 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course, what you're asking us to do would -- would just solve your problem in this case, and -- and in the future, I suppose they could revise rule 183 as simply not to require a report. There -- there's nothing in the statute that requires this report, is there?
03-184 +++$+++ 5690 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's true. They could cease using the STJ's, but --
03-184 +++$+++ 5691 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, they could -- they could use them, but just say, instead of filing a report, he'll consult with the -- with the deciding judge.
03-184 +++$+++ 5692 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I suppose that could happen. If there is -- if there is no report written, we couldn't contend it has to be disclosed under these statutes, and that -- that might be. But it -- there could be a Raddatz issue in that scenario that you present, Justice Scalia. If one judge heard the witnesses and the other judge didn't hear the witnesses and -- and the -- the superior judge --
03-184 +++$+++ 5693 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, they confer with each other. Maybe, maybe.
03-184 +++$+++ 5694 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it -- it would be -- it would be quite strange to have credibility determinations made by a judge who had never heard from any of the witnesses.
03-184 +++$+++ 5695 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What happens in cases in agencies, you know, where -- where -- suppose the agency itself or a member thereof is going to make a decision, and there might be other members who would hear the witnesses. And I was thinking of that analogy. It's possible. It happens in the Federal Communications Commission where the staff, you know, consults back and forth in ratemaking cases.
03-184 +++$+++ 5696 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, yes.
03-184 +++$+++ 5697 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's hard to find precisely the analogy, but it seems likely.
03-184 +++$+++ 5698 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the closest analogy in this Court's decisions is the Morgan II decision.
03-184 +++$+++ 5699 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, which gives and takes away.
03-184 +++$+++ 5700 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Now, Morgan II is really on point because there, a subordinate official drafted up findings, proposed findings, didn't serve them on the parties, but did give them to the decision-maker, the agency. And this Court held that was a violation of due process.
03-184 +++$+++ 5701 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You have to have an opportunity to refute the information that's going to --
03-184 +++$+++ 5702 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
03-184 +++$+++ 5703 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
03-184 +++$+++ 5704 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and every administrative body that we know of in the Federal courts and in the State system too -- Chief Judge Vanderbilt pointed that out in the Mazza case. Every State in the Union requires disclosure of these administrative law decisions to the parties.
03-184 +++$+++ 5705 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If you analogize the STJ to the administrative ALJ. But you might also analogize him to a member of the agency itself, and if you make that analogy, it doesn't become so far-fetched, particularly when you look at Morgan as also not allowing you to probe at what's going on.
03-184 +++$+++ 5706 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Well, we -- we've avoided suggesting that any depositions should be taken of -- of judicial personnel here. That's not our view. Our view is simply that the report that was prepared -- it was prepared -- should be made part of the record by virtue of two statutes. There is an appellate review statute, Justice O'Connor, that states quite expressly that Congress expected review to take place here just as it does in the district court, to the same degree, to the same extent, and in the same manner. And in the district court, if an adjunct judge makes a finding of fact, whether it's a master or a magistrate or bankruptcy judge, that is always disclosed to the parties.
03-184 +++$+++ 5707 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Shapiro, is there any evidence in this record that the special trial judge in fact changed his report beyond the hearsay affidavit?
03-184 +++$+++ 5708 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't know what is contained in that first report. We have heard from three of the judges, including the chief judge of the STJ's, that -- that what happened was that Judge Dawson rewrote the credibility findings. Now, we won't know until we see this. That could be wrong. But -- but it should be part of the record for the court of appeals.
03-184 +++$+++ 5709 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Shapiro, on credibility, which you have been emphasizing, are you overstating the case for it? Because credibility is more than just observing the witnesses' demeanor. I mean, Judge Dawson could have said, yes, they -- these witnesses might have looked honest to the special trial judge, but considering this documentary evidence in the record, it's clear to me that what the witness said on the stand was a lie.
03-184 +++$+++ 5710 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you'll see in perhaps a dozen situations, he says, I simply don't believe that witness, none of whom he heard. And this is a case where credibility was key. Was there a bribery scheme of the kind that the IRS claimed? Every witness who testified said no, it didn't exist. These are simple investments with the proceeds being paid to the corporations, and yet, the Government's theory was there is some nefarious bribery scheme that every witness denied. And there is no documentary evidence of that. The evidence of the proceeds flowing to these corporations was simply the result of their investing money in real estate deals. And so credibility was the key to this whole case. And the -- the Government, I don't think, can be serious when it tells this Court that this first report is some confidential document, that it's privileged internal deliberative material. For 40 years, the -- the Tax Court made these reports available to the public. It -- they were routinely served on the parties. For 40 years there was no suggestion --
03-184 +++$+++ 5711 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would -- would you comment on that? I -- I understood from the brief there was a suggestion that if you prevail, we're going to have a huge volume of -- of printed material that we're not troubled with now.
03-184 +++$+++ 5712 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, yes. That's a post hoc rationale. There was no such explanation when this rule was changed, and there's not a bit of work or a bit of expense resulting from our position. We simply ask for a copy of a report that exists. They can serve it on us electronically. It won't cost them a cent. We're making a very modest request under these statutes and under the Due Process Clause. And there was no explanation --
03-184 +++$+++ 5713 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, now, wait. Under the Due Process Clause, I assume you would be asking for more than just access to the report. You -- if -- if you're really relying on Morgan II, he who hears must decide, I think you would be saying that after reading the report, you should have the opportunity to argue to the -- to Dawson here, to -- to the Tax Court judge that the report should not be adopted.
03-184 +++$+++ 5714 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we defer to --
03-184 +++$+++ 5715 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't that part of your due process case?
03-184 +++$+++ 5716 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it really is not. We're asking --
03-184 +++$+++ 5717 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You think it satisfies due process just to show you the report, and then --
03-184 +++$+++ 5718 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To give -- and make it part of the appellate record. We're not asking for any remand to the Tax Court. If the Tax Court doesn't --
03-184 +++$+++ 5719 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, then -- then you're not relying on Morgan II.
03-184 +++$+++ 5720 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we -- we just rely on that as an example of the need to disclose this at an appropriate juncture.
03-184 +++$+++ 5721 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There wasn't a need to disclose the point that Morgan II made. It was he who hears must decide.
03-184 +++$+++ 5722 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in Morgan II, the -- the point was that any -- any proposed findings that are drafted up have to be shared with the parties. Now, there they had to be shared with the parties at the administrative level. We're not going that far. If the Tax Court tells us that they don't want to have that layer of review within the Tax Court, they don't want to receive our comments on the initial report, that's fine with us. We want it to be made part of the appellate record so that the judges who are interested in this and believe it will shed a strong light on the issue of clear and convincing evidence can have this be part of the record. And already the Fifth Circuit has overturned the finding of fraud in this very same case.
03-184 +++$+++ 5723 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do -- do I understand that you would be satisfied if the Court simply looked to -- what is it -- 7482(a)(1), the appellate review section, which says that the Tax Court decisions shall be reviewed in the same manner and to the same extent as district court decisions? And that --
03-184 +++$+++ 5724 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. We'd be satisfied because that is a sufficient basis to say the record has to include the rule 183 report. And it is not up to the trial court to tell the appellate court what's in the record on appeal. It's up to the appellate court to -- to determine what goes into that -- that record. This -- the case in the Second Circuit on that is IBM v. United States where the Second Circuit analyzed rule 10(a) and said it is not the province of the trial court to dictate to the reviewing court what is in that record. And this Court in --
03-184 +++$+++ 5725 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And where is it? It's -- it is specified someplace, but when you review a district court decision in -- in a court of appeals, the -- certainly the magistrate's report would be included, but there's someplace where it lists the contents, some rule that lists --
03-184 +++$+++ 5726 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, yes. It's rule 10(a) and it's -- it's very general. It says that all the original papers in the trial court come before the appellate court, and an original report is an original document submitted in the trial court. And this Court confronted that question in Universal Camera 50 years ago, and the Government made the same arguments then that it's making now and it lost 7 to 2 in that case. It -- it said that the report --
03-184 +++$+++ 5727 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Institutional memory. Isn't that -- that's a good institutional memory --
03-184 +++$+++ 5728 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It goes back. (Laughter.)
03-184 +++$+++ 5729 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The same argument was made that the report is an irrelevance. It's just an aid to the decision-maker, and the decision-maker can do what it wants and has ultimate judgmental power. So there's no need to include that report in the record, and no weight should be given to it. This Court said, we will not adopt an exclusionary rule for the administrative law judge's report. And this is an a fortiori case because this report is presumed correct. In Universal Camera, there was no presumption of correctness at all. So that -- that case, you know, goes further than -- than what the Court has to do here. And the Government's argument that -- that somehow this is --
03-184 +++$+++ 5730 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That -- that was decided under the APA, wasn't it? I mean, that was an APA case, which this isn't.
03-184 +++$+++ 5731 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, yes, that's true. But, you know, the Court reached out to the APA for guidance in construing the labor laws. The labor laws were silent on this issue, but under the APA, the Court said the general policy is to disclose these reports and we are going to say that that is applicable to the NLRB. Now, the Government says all of this changes the course because the judge changed his mind, but you know, there are so many opinions and orders and reports in the Federal judicial system where a mind is changed and an opinion is suppressed or -- or vacated or replaced and that first opinion is still part of the record. It's a fallacy to say it's not part of the record just because it's been abandoned. For example, if I seek summary judgment in the district court and it's denied and then I ask for reconsideration and it's granted, the opinion has been abandoned, but it's still part of the record. And if I -- if an appeal is taken, it's going to be exhibit A in any appeal, and it may result in a reversal. Same thing when a case goes en banc. The panel opinion is vacated, but then when -- when cert is granted, the argument before this Court may convince this Court that the panel was right. Even though it's been abandoned, it's still very important. Or if a jury verdict is set aside -- the -- the district court says, judgment as a matter of law -- on appeal, the jury -- jury verdict may get sustained. So it's just a logical fallacy to say that because somebody has changed his mind, if that's what happened here, that -- that the first report drops out of the record.
03-184 +++$+++ 5732 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would the -- the Tax Court rule -- now, this 183(c) -- says -- it describes the special trial judge's report, which is submitted to the chief judge, and then the chief judge assigns a Tax Court judge, and then it says that -- that the Tax Court judge may modify it, modify the special trial judge's report, or may reject it in whole or in part. Does the Tax Court ever modify a special trial judge's report? Does it ever reject it in whole or in part?
03-184 +++$+++ 5733 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, yes, and -- and the remarkable thing is that every time it does that, it recites, we hereby adopt the findings and opinions of the trial judge. Now, in the old days, that was not a problem.
03-184 +++$+++ 5734 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that's one thing that they can do. They can adopt it, but my question is, do they always adopt and never use -- never use the term modify or reject?
03-184 +++$+++ 5735 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, no. They -- they do modify and reject. It's just it's hard to determine, when they are doing that. In the old days --
03-184 +++$+++ 5736 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They -- they never say so in their opinion.
03-184 +++$+++ 5737 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They don't --
03-184 +++$+++ 5738 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They always say that they adopt the trial judge's report. Don't they?
03-184 +++$+++ 5739 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. That's entirely correct. And now, in the old days, before they amended the rule, you could compare the two and see what was changed, but now you can't. You can't tell what has been changed. And in this instance, we believe there's been a complete rewrite of that first report, and the appellate courts can't tell what's going on. Was there a reason for doing this? Was deference given? Was some other agenda at work in this decision? No one can tell because it is all off the record.
03-184 +++$+++ 5740 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what is -- can I ask you a really esoteric administrative law question, which I have never been able to figure out? It's probably relevant, but I -- this is an agency. That's what -- my great tax professor, Ernie Brown, used to say there is no Tax Court. He says, the Board of Tax Appeals shall be known as the Tax Court. What he meant by that is it's not -- it isn't the Tax Court, just known as. So -- so this is an agency, an administrative agency. So I look to the APA for guidance, and the APA, when you look at the section, says this initial decision can be made by a 556-qualified person. Now, a 556-qualified person can include the agency itself or a member of the agency or an ALJ. Then when you to look at what happens in 557, after that presiding employee makes an initial decision, it says you have to give a chance to the party to respond to the initial decision, which you like, in the case where the presiding employee -- presiding person is a subordinate employee. And so, that's what I was just checking here. And so -- so what's supposed to happen where the presiding person under 556 for that initial or tentative decision is not a subordinate employee, but rather, quote, one or more members of the body which comprise the agency? I've never run into that before. Maybe you haven't. Maybe they didn't mean anything by it, but maybe they did.
03-184 +++$+++ 5741 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I haven't either. But the judge here certainly was subordinate and --
03-184 +++$+++ 5742 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He was a subordinate employee?
03-184 +++$+++ 5743 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, he was.
03-184 +++$+++ 5744 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Rather than a member -- is -- is -- if he's a subordinate employee, that's easy. Then the case is easy I think.
03-184 +++$+++ 5745 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He -- he is a subordinate because as the Government keeps telling us, the Tax Court judge is the only official spokesman for the court. They get to make the final judgment. And the Tax Court judge reviews what the STJ has done.
03-184 +++$+++ 5746 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ These -- these --
03-184 +++$+++ 5747 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you're -- you're not asserting that the APA governs this.
03-184 +++$+++ 5748 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh --
03-184 +++$+++ 5749 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. I'm just looking --
03-184 +++$+++ 5750 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't there an express exception for -- for --
03-184 +++$+++ 5751 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and this a court. This is an Article I court, this Court has held. And Congress has created very specific appellate review procedures for this court.
03-184 +++$+++ 5752 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The -- the special trial judge has no tenure, does she?
03-184 +++$+++ 5753 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. He -- those judges could be terminated at will, including because there is not sufficient work for the judge. They can be terminated on that basis. And that, we think, colors the analysis here for the reasons Judge Cudahy gave. This is not an independent judge. When he is persuaded by his superior to change his mind, it's obvious that he -- in our view, that he's going to be heavily influenced by that. It's a serious Raddatz problem. The only cure is to make this part of the record and to enforce the rule 183 presumption of correctness, which creates a clear error standard of review. I see my time has run out. May I reserve the rest for --
03-184 +++$+++ 5754 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, you may, of course. Mr. Hungar.
03-184 +++$+++ 5756 +++$+++ FALSE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: The central flaw in petitioners' case is that both of the trial court judges responsible for evaluating the evidence in the record reached the same conclusion regarding all of the factual issues.
03-184 +++$+++ 5757 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Hungar, before you proceed to your legal argument, I was very curious why the Government is defending this practice because the Government, after all, is on the other side of every case. And aren't there situations where it might be that the special trial judge would call a credibility question in the Government's favor and then the Government loses the case before the Tax Court judge and might like to know, before it goes to the court of appeals, how solid the credibility findings were? I mean, I -- I -- the Government being a party to all these proceedings, why is it satisfied with not knowing what the report of the special tax judge -- special trial judge was?
03-184 +++$+++ 5758 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, we do know what the report of the special trial judge was. It is in the record. Judge Couvillion's name is on his report.
03-184 +++$+++ 5759 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, it is not the report. It is called an opinion. It isn't even called the report, and if you will read 183(b), that describes the report. Does anything else describe the report? And what is this report? There is a report. It is submitted to the chief judge. What would you call that?
03-184 +++$+++ 5760 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The report is the -- contains the recommended findings of fact and opinion, analysis of the law and application of the law to the fact, of the special trial judge. The report is the findings of fact plus, quote, the opinion.
03-184 +++$+++ 5761 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, what is the 183(b) report?
03-184 +++$+++ 5762 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-184 +++$+++ 5763 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There --
03-184 +++$+++ 5764 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- under rule 183(b), the -- the special trial judge submits his report to the chief judge. It is then referred to a Tax Court judge.
03-184 +++$+++ 5765 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So that report, the special trial judge's report, is a document prepared by the special trial judge which he gives to the chief judge.
03-184 +++$+++ 5766 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. But the important thing to understand, Your Honor, is that nothing in the rule precludes, during the course of the deliberative process that then follows, the special trial judge from concluding that he has made a mistake, that he no longer agrees with the -- the stated findings of fact in that -- in that original report, from withdrawing and submitting a corrected report.
03-184 +++$+++ 5767 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's not the way the rule reads. The rule reads, as I understand it, under (c) that the court itself may accept, reject, or modify. It doesn't say anything about the special trial judge reconsidering and rewriting his report.
03-184 +++$+++ 5768 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It doesn't preclude it either, Your Honor. There's a longstanding practice --
03-184 +++$+++ 5769 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, it does because it -- it goes on to say that due regard shall be given to the circumstance that the special trial judge had the opportunity to evaluate and the findings of fact recommended by the special trial judge shall be presumed to be correct. But if those findings of fact are simply the same findings of fact that he agrees with the rest of the -- the panel on, it just makes no sense at all.
03-184 +++$+++ 5770 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Tax Court judge cannot report in -- in the opinion that is issued by the Tax Court, he cannot say I'm adopting the opinion and findings of the special trial judge if the -- if the Tax Court judge does not agree with those and the -- and the special trial judge adheres to his original decision. The only way it is possible for there to be a change is for the special trial judge himself to determine, in the exercise of his responsibility as a judicial officer, that he made a mistake.
03-184 +++$+++ 5771 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What report goes to the chief judge?
03-184 +++$+++ 5772 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Originally the original report goes to the chief judge.
03-184 +++$+++ 5773 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's a report. Is that not a report?
03-184 +++$+++ 5774 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is a report, Your Honor.
03-184 +++$+++ 5775 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why doesn't that -- why isn't that required to be -- to be made public?
03-184 +++$+++ 5776 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because if -- because the -- because the Tax Court has determined that it will not be made public, that it is part of internal deliberation.
03-184 +++$+++ 5777 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's a report. The statute says that the reports have to be made public.
03-184 +++$+++ 5778 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor.
03-184 +++$+++ 5779 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That is a report.
03-184 +++$+++ 5780 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor.
03-184 +++$+++ 5781 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it goes to the --
03-184 +++$+++ 5782 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor.
03-184 +++$+++ 5783 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No?
03-184 +++$+++ 5784 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect, the tax -- the -- the statute says a report of the Tax Court must be made public. A -- a report --
03-184 +++$+++ 5785 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but the rule -- the rule says that the first report, the document 1, has to be given deference. Whether it's presumed to be correct.
03-184 +++$+++ 5786 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Kennedy, if I may, I'd like first to finish my response to Justice Scalia.
03-184 +++$+++ 5787 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Sure.
03-184 +++$+++ 5788 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The statutes -- the -- the disclosure requirement applies only to reports of the Tax Court. It is perfectly clear that a report, the original report, or any report of a special trial judge is not and cannot be the report of the Tax Court unless it is first adopted and approved by a Tax Court judge, and then goes through the next step of -- of being submitted --
03-184 +++$+++ 5789 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's -- it's very hard to understand how appellate review can function if that first report of the special trial judge is never disclosed. I just don't see how the appellate review can function properly.
03-184 +++$+++ 5790 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And how do we know that it was -- that it was presumed to be correct under the rule?
03-184 +++$+++ 5791 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. How does the appellate court know whether deference, as required by the rules, was given unless the appellate court can see it? It's such a strange procedure. Why, in answer to Justice Ginsburg, does the government take the view it does? Wouldn't you like to see it if it went against you?
03-184 +++$+++ 5792 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We submit, Your Honor, that there is no evidentiary or probative value in an initial conclusion that the -- that the person who reached that conclusion has abandoned, has concluded was wrong. Special Trial Judge --
03-184 +++$+++ 5793 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the rule --
03-184 +++$+++ 5794 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Couvillion rejected --
03-184 +++$+++ 5795 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the rule -- the rule 183 does provide for a certain degree of deference to be given to those findings of the special trial judge.
03-184 +++$+++ 5796 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To the recommended findings of the special trial judge. And I submit that if the special trial judge has concluded that his initial recommendations were mistaken because, based upon further consideration as a judicial officer in the exercise of his obligations, he has realized he made a mistake, I submit it would be bizarre to require a Tax Court judge to give some sort of -- of deference to --
03-184 +++$+++ 5797 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Hungar, do you --
03-184 +++$+++ 5798 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- abandoned findings.
03-184 +++$+++ 5799 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you see somewhat of a problem, that we are not dealing here with the relationship between peers? Judge Dawson is appointed, what, for a 15-year term. The special trial judge is appointed by the Tax Court and his job is at the Tax Court's grace. And if you have compared in your brief that relationship to, say, a discussion among colleagues, I think it's worlds different.
03-184 +++$+++ 5800 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, Judge Dawson actually is a senior judge who was recalled. So he doesn't have the 15-year term protection. But it's true that special trial judges are -- are appointed by the chief judge, not by the Tax Court judges, but by the chief judge, so that Judge Dawson wasn't, in a sense, his -- his appointing, employing official. But more to the point, special --
03-184 +++$+++ 5801 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He has had a special -- a -- a long term and he is well-known and respected as a Tax Court judge who was appointed, as all other members of the court were appointed.
03-184 +++$+++ 5802 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Judge Couvillion has been a special trial judge, I think, for nearly 20 years. But the point is special trial judges are bound by the code of conduct. The Tax Court has adopted for both Tax Court judges and special trial judges the same code of conduct that applies to Federal judges under Article III, which --
03-184 +++$+++ 5803 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems to me --
03-184 +++$+++ 5804 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- obligates independent decision-making.
03-184 +++$+++ 5805 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems to me that it's very much like, if you have to compare it with something, the relationship between a magistrate and a Federal district court judge. The magistrate also hears testimony, makes a report, findings, and a recommendation. What's the difference between those two?
03-184 +++$+++ 5806 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, one difference is that the district court judges, as I understand it, appoint the magistrate, not the chief judge. But a more significant difference is that the statute and rules applicable to magistrates require disclosure of their reports and do not treat them as part of the internal deliberative process. The Tax Court has determined that it is inefficient to have disclosure of the original report, then have exceptions and have that whole process followed that they used to follow. They have determined that they will treat the Tax Court -- excuse me -- the special trial judge's report --
03-184 +++$+++ 5807 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So where does it say that? Where does it say that?
03-184 +++$+++ 5808 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They're not requiring the -- this case doesn't involve the question of whether they can make objections to the finding in -- in the special report. It's just whether it's disclosed.
03-184 +++$+++ 5809 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. But the -- but the Tax Court has determined not to disclose it.
03-184 +++$+++ 5810 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I understand. But your argument about how it would make the proceeding more cumbersome, it seems to me, is -- is misplaced.
03-184 +++$+++ 5811 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it certainly would be more cumbersome if they followed the procedure that they used to follow, which we submit, although the record is -- they did not specifically state --
03-184 +++$+++ 5812 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they're not asking for that. Am -- am I wrong on --
03-184 +++$+++ 5813 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, that's true, Your Honor. What they're asking for here, what they say they want is merely disclosure of the original report.
03-184 +++$+++ 5814 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it's a particularly strong argument in a case -- in several of the issues. I remember Judge Fromm's opinion turned on the credibility of oral testimony, and in one case, Judge Fromm found the -- the judge here made an erroneous ruling on credibility on one issue, if I remember correctly. And it seems to me that's a case in which it would be particularly relevant to know the reasons pro and con on why credibility determinations were made by the person who heard the witnesses.
03-184 +++$+++ 5815 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the person who heard the witnesses is Special Trial Judge Couvillion.
03-184 +++$+++ 5816 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Has been convinced that he was wrong.
03-184 +++$+++ 5817 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-184 +++$+++ 5818 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the question is, well, what was his -- what was the basis for his original position when you're evaluating whether you've got a valid argument to make on appeal?
03-184 +++$+++ 5819 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under that rationale, Justice Stevens, every time a district court judge changes his mind, after giving further thought to a case --
03-184 +++$+++ 5820 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no, no.
03-184 +++$+++ 5821 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- before he issues his final opinion --
03-184 +++$+++ 5822 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Only if he is required by a rule to make certain findings and to deliver a completed report to someone else.
03-184 +++$+++ 5823 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again, the -- the rule does not preclude the practice. It is a common practice --
03-184 +++$+++ 5824 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It doesn't forbid it. You're right. It doesn't forbid it in so many words. But I just wonder, does it comport with your normal notions of a fair way to conduct a fair hearing, letting the parties know what the basis for decision was and who thought what about the witnesses and so forth?
03-184 +++$+++ 5825 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Your Honor. If the -- in a -- when a -- when a court has a collegial deliberative process involving more than one person that is involved in the decision-making -- certainly this is an unusual process in that -- and there is no identical analog, but we see no due process problem.
03-184 +++$+++ 5826 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. But I don't see what is consistent with your notion of a deliberative process as producing the report and the presumption of correctness in the rule. The rule presumes that some original document, which you are treating as provisional, enjoys a presumption of correctness, and I don't see the consistency between provisionality and deliberate character on the one hand and presumption on the other.
03-184 +++$+++ 5827 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If I may, Your Honor, the rule does not state that the, quote, original report shall receive a presumption of correctness. It doesn't even say that -- that any report shall receive a presumption of correctness. It says the findings of fact recommended by the special trial judge.
03-184 +++$+++ 5828 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And aren't those findings of fact the findings of fact that are delivered to the chief judge in the report that is made to the chief judge before it is even assigned to a Tax Court judge?
03-184 +++$+++ 5829 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not if -- not if the tax -- if the special trial judge has abandoned those recommendations, withdrawn those recommendations, and replaced them.
03-184 +++$+++ 5830 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But he hasn't abandoned them at the point that he delivers them to the chief judge, and if that's what this is referring to, then the presumption of the -- of -- of correctness necessarily has to apply to whatever the document is that's delivered to the chief judge.
03-184 +++$+++ 5831 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it applies to the report, but I submit that if the special trial judge withdraws in order to correct an error in the report, what he submits as the corrected report is then the, quote, report.
03-184 +++$+++ 5832 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're -- you're --
03-184 +++$+++ 5833 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why isn't that explained in the rules, if that's the process?
03-184 +++$+++ 5834 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- have a condition subsequent. It seems to me that you're saying, Mr. Hungar, that the last sentence of 183 is unenforceable.
03-184 +++$+++ 5835 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the credibility -- the due regard and presumption of --
03-184 +++$+++ 5836 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The presumption.
03-184 +++$+++ 5837 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's important to understand also that, in fact, it would violate the Internal Revenue Code. This rule must be construed to be consistent with the Internal Revenue Code. The Internal Revenue Code makes very clear, and this Court held in Freytag, that the Tax Court judge, not the special trial judge, is the decision-maker, the only finder of fact in these kinds of cases under subsection (b)(4) of the statute. This Court so held in Freytag and the -- and the statute makes that very clear. So it would violate the statute to construe this, as petitioners do, to require some sort of deferential clear error review.
03-184 +++$+++ 5838 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you're saying the rule itself in that respect is invalid?
03-184 +++$+++ 5839 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If construed as petitioners would have it, yes.
03-184 +++$+++ 5840 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, how else could you possibly construe it? There's no presumption operating at all on your reading.
03-184 +++$+++ 5841 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the tax context, Your Honor, the -- there is a presumption of correctness that attaches to assessments and deficiency notices issued by --
03-184 +++$+++ 5842 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but you're saying there is -- there is no presumption of correctness that can operate with respect to the report that goes first to the chief judge because, I understood you to say, to do that would violate the Internal Revenue Code provision that the fact-finder and the only fact-finder is the Tax Court judge. And therefore, I think the implication of what you're saying is that the rule on its face is invalid.
03-184 +++$+++ 5843 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, presumption of correctness does not necessarily equate with clear error, deferential review. That's my point.
03-184 +++$+++ 5844 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm -- I'm not even getting to whatever the standard of review may be. I presume the word presumption means something other than it's there unless you want to change it later after the person who employs you objects to it. It's got to mean something more than that.
03-184 +++$+++ 5845 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What the presumption of correctness means in the tax context, with respect to deficiency determinations and the like, is that the burden of going forward is on the party seeking to change what -- what -- the determination that is presumed correct.
03-184 +++$+++ 5846 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there's no party who is seeking to change at this point because the parties don't know what's in it. They're not going forward. This is, as you point out, an internal process that is going on here. So that definition can't apply.
03-184 +++$+++ 5847 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. If -- there -- there are two processes that go on. The Tax Court judge, quite appropriately, we -- we assume and have -- have no reason to disagree, confers with, discusses with the special trial judge. If -- if in the course of that discussion, one or both of them come to the conclusion that something is wrong in the original report and if the special trial judge agrees, the special trial judge has the option of withdrawing his original report, submitting a corrected report, and having the presumption of correctness, whatever it means, apply to his corrected report. If -- if --
03-184 +++$+++ 5848 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In -- in that discussion, does the Tax Court judge have to give great weight to the findings of fact of the -- of the special judge?
03-184 +++$+++ 5849 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, not great weight because, again, that would violate the statute.
03-184 +++$+++ 5850 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Any weight?
03-184 +++$+++ 5851 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He is to give due -- the due regard provision we think is essentially precatory, as the -- as the Seventh Circuit said. It reminds the -- the Tax Court judge that he should not lightly set aside the credibility determinations. But again, that's not what happened here.
03-184 +++$+++ 5852 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So I -- I think your -- I think your answer then is not that this is invalid. It is simply unenforceable. It is precatory language, looks okay, but there's no way to police it.
03-184 +++$+++ 5853 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's certainly not enforceable in an appellate court. That's correct.
03-184 +++$+++ 5854 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Judicially it cannot be enforced.
03-184 +++$+++ 5855 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, because otherwise it would violate the statute if it imposed some meaningful limitation. But again, it's important to understand here the Tax Court judge did not exercise his authority in this case to reverse or set aside the special trial judge's findings. He could have done so --
03-184 +++$+++ 5856 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do they -- do they ever? I mean, this -- this says, this decision -- it's labeled -- the -- the court agrees with and adopts the opinion of the special trial judge. Are there Tax Court cases where the Tax Court says, instead of that, the court modifies the decision of the special trial judge or the court rejects, in whole or in part, the report of the special trial judge?
03-184 +++$+++ 5857 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We cite --
03-184 +++$+++ 5858 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do Tax Court opinions come out that way?
03-184 +++$+++ 5859 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We cite in footnote 4 a small number of cases from prior to the last rule change in which that occurred. In addition, there are at least a couple of cases since the rule change in which the Tax Court judge rejected parts of the opinion, but not the findings. We're not aware of any cases in which the Tax Court judge has rejected the findings, but there are other cases -- Little against Commissioner, 103 T.C. 285; Walker against Commissioner, 101 T.C. 537 -- in which the Tax Court judge expressed a disagreement with a portion of the opinion of the special trial judge and then proceeded to decide the case in the manner he or she thought --
03-184 +++$+++ 5860 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because if one were just to rule this -- read this rule straight: first, the report that goes to the chief judge, and then it says that the Tax Court judge may modify it, reject it in whole -- adopt, modify, or reject in whole or in part. You would expect, if we were having truth in labeling, that whenever, with consultation, without, there's a difference between the two documents, the Tax Court judge, in combination with the special trial judge or without, would say, action on the report -- action on the report, which is the special trial judge's report, is it is modified or it is rejected or it is rejected in part. I mean --
03-184 +++$+++ 5861 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again, that assumes that the -- that the -- the rule compels the interpretation that the special trial judge is prohibited from withdrawing, correcting, and resubmitting his report. I submit it does not compel that interpretation, and the Tax Court --
03-184 +++$+++ 5862 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The rule -- the rule doesn't say anything about this consultation that you've described. And if that's the Tax Court's procedure, why isn't it laid out in the rules so everyone can see it instead of being deceived by reading here is the special trial judge's report, and now what the Tax Court will do is either adopt, modify, or reject in whole or in part?
03-184 +++$+++ 5863 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think it -- I mean, I don't think it's -- it's deceitful, the -- the possibility that a court --
03-184 +++$+++ 5864 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Misleading. Because when I just read this rule cold, that's what I assumed, that we have the initial report and then it goes to the Tax Court judge, and that judge does something with it, and that something may be adopt, it may be modify, it may be reject in whole or in part.
03-184 +++$+++ 5865 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, when the Tax Court adopted its present procedures in 1984, it -- it certainly did not do so in as artful a manner as it could have. But the question is whether it violates the statute or due process for it to do what it has done. Let me just -- we've been spending most of our time talking about this issue of whether the Tax Court -- the special trial judge is permitted to change his report under rule 183. That's not even one of the questions in the questions presented. The only rule 183 question in the questions presented is whether the rule requires clear error review. We submit the answer to that is no because it would violate the Internal Revenue Code. So this -- this question about whether the report permits -- whether the rule permits the report to be changed isn't even one of the questions presented. The courts of appeals upheld the judgment on the premise that it was permissible for the Tax Court judge and the trial -- the special trial judge to engage in the deliberative process and for the special trial judge to revise his findings as he did --
03-184 +++$+++ 5866 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't think there's any -- any question they can change the report, but the one -- the one -- I'd like to ask you a question as a matter of information. The first sentence of 183(c) refers to the possibility that the judge to whom the case is assigned may direct the filing of additional briefs to receive further evidence and oral argument. Does it ever happen that before the judge to whom it's assigned decides whether or not to go along with the recommended findings, that he will direct oral argument? Does that ever happen?
03-184 +++$+++ 5867 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know the answer to that, Your Honor. I'm not aware of that, but --
03-184 +++$+++ 5868 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because if he did, it would seem almost necessary for him to disclose to the parties what the report they're arguing about would say.
03-184 +++$+++ 5869 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, I -- this is a holdover from the prior version of the rule in which the exceptions process was followed, and again, it may be that had the Tax Court given it further consideration, they might have viewed that unnecessary. But we're not aware of that happening.
03-184 +++$+++ 5870 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it certainly seems to contemplate deliberation by the judge to whom the case is assigned about whether or not to accept the report and deliberation which might be informed from input -- input from the parties. That's a fair reading of the rule, I think.
03-184 +++$+++ 5871 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If --
03-184 +++$+++ 5872 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Maybe it's not practiced.
03-184 +++$+++ 5873 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- if the Tax Court judge so determines, yes. The rule certainly allows that, but it doesn't obviously require that.
03-184 +++$+++ 5874 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if he did then ask for further briefings, do you think that there would then have been a requirement to disclose the report?
03-184 +++$+++ 5875 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, presumably it would be a waste of everyone's time unless he -- I don't know that he would have to disclose the report, but he would need to direct their attention to the issue he would like them to brief.
03-184 +++$+++ 5876 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems to me that the author of this subsection (c) must have contemplated the possibility of disclosure of the report.
03-184 +++$+++ 5877 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again, Your Honor, this language was adopted at a time when they followed the exception --
03-184 +++$+++ 5878 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When they followed a different procedure, and the question is to how much -- how much did they intend the -- to change that prior procedure.
03-184 +++$+++ 5879 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we know that the Tax Court has interpreted its rule to permit precisely the practice it followed here because it said so. And it would be quite extraordinary, we submit, for this Court to reverse the Tax Court, which is surely entitled to considerable deference in interpreting its own rules, since, after all, the Tax Court has exclusive statutory authority to promulgate its own rules, and particularly with respect to this issue about whether the special trial judge can change his report, since that was not even one of the questions presented. If I may turn to -- back to the statutory question. Section 7461 requires disclosure of reports of the Tax Court. The special trial judge report is not the report of the Tax Court. Indeed, even a Tax Court judge's opinion and report does not become the report of the Tax Court.
03-184 +++$+++ 5880 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does the statute you just quoted prohibit the disclosure of other reports if we call this first draft something other than a report?
03-184 +++$+++ 5881 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The statute doesn't --
03-184 +++$+++ 5882 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In other words, would -- would the rule go further than the statute?
03-184 +++$+++ 5883 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The statute does not prohibit the disclosure of other reports, but the rule clearly does not require the disclosure of reports. The Tax Court in 1984 amended the rule to make perfectly clear that -- that initial reports of special trial judges are not to be disclosed. The Tax Court said in its orders in this case the reason for that is that those are now internal deliberative processes. The Tax Court has made clear that its rules permit exactly what it's doing here.
03-184 +++$+++ 5884 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Hungar, you started to say that -- that even the opinion of a -- of a Tax Court judge is not a report of the Tax Court.
03-184 +++$+++ 5885 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
03-184 +++$+++ 5886 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How does that work?
03-184 +++$+++ 5887 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Page 2a of the appendix to the gray brief, at the bottom of the page, section 7460(b) provides that the report of the division -- and the Tax Court is now and has for many years been divided into one-judge divisions. They used to sit en banc or --
03-184 +++$+++ 5888 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I was -- I was going to ask you what -- what 7461 referred to when it says the Tax Court and its divisions.
03-184 +++$+++ 5889 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-184 +++$+++ 5890 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It also is referred to there.
03-184 +++$+++ 5891 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For a brief period of time, they sat in -- in panels.
03-184 +++$+++ 5892 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I see.
03-184 +++$+++ 5893 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But they -- the -- the press of work force them to -- to divide into one-judge divisions.
03-184 +++$+++ 5894 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it's a single judge is a division of the Tax Court.
03-184 +++$+++ 5895 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, that's correct.
03-184 +++$+++ 5896 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the publicity of proceedings does say -- it does say that all reports of the Tax Court --
03-184 +++$+++ 5897 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
03-184 +++$+++ 5898 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And all evidence received by the Tax Court and its divisions, meaning its single judges. Well, what happens with -- with a single judge's opinion?
03-184 +++$+++ 5899 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He -- he prepares it and submits it to the chief judge under rule -- under statute -- under the statute 7460(b) where it says the report of the division shall become the report of the Tax Court within 30 days after such report by the division, unless the chief judge directs it to be reviewed by the full court. So -- so even a Tax Court judge's opinion is not the report of the Tax Court. Surely the report of the special trial judge is not either.
03-184 +++$+++ 5900 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's like an en banc. I -- I have written decisions for a panel in my years on the court of appeals, and there's been an en banc and my opinion gets vacated. It's no longer counts for anything. And isn't that exactly what the Tax Court is? They have the --
03-184 +++$+++ 5901 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. The -- the opinion is not made public. In fact, the statute precludes it from being made -- made a part of the record. The last sentence of that same section 7460(b) at the top of page 3a, it says the report of a division shall not be a part of the record in any case in which the chief judge directs that such report shall be reviewed by the Tax Court. And that's a very important point. Congress has mandated by statute essentially the same procedure that the Tax Court follows here.
03-184 +++$+++ 5902 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, no. No, no, no. How often, when there is a decision reviewed by the court, so that the initial judge's decision is changed, does that judge dissent, so all the world knows what that judge's initial position was?
03-184 +++$+++ 5903 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the Tax Court judge certainly has the authority to dissent, just as a special trial judge has the authority and, indeed, the obligation under the code of conduct to refuse to put his name on a -- on a report if he doesn't agree with it. If he doesn't agree with the Tax Court judge's view, he has the obligation, the ethical obligation -- and we presume he follows it -- to say I don't agree. This is my report. If you --
03-184 +++$+++ 5904 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then he -- then he can publish his -- he can publish his dissent, just as a Tax Court judge can?
03-184 +++$+++ 5905 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but he can preclude the Tax Court judge from doing what the Tax Court judge did in this case, which is simply adopting his report. If the -- if the special trial judge refuses to change his report --
03-184 +++$+++ 5906 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But then we still won't know what his report is. Yes, he can say, I won't sign this. Tax Court says, fine. This rule says I can reject your findings in whole or in part. I don't need your name on this decision of the Tax Court.
03-184 +++$+++ 5907 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, if -- if that were the case here, obviously our arguments would be more difficult. But that is not what happened here. If -- if --
03-184 +++$+++ 5908 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm asking you just as the -- the judge who disagrees with the -- the full court can publish his dissent, can the special trial judge who disagrees with the Tax Court judge publish his dissent?
03-184 +++$+++ 5909 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the -- the one case involving a change in the opinion, where the Tax Court judge said, I don't adopt a portion of the opinion of the special trial judge, there was no published opinion of the special trial judge. So I don't believe there's a procedure for the dissent. But the point is the court of appeals --
03-184 +++$+++ 5910 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Has there ever been? Has there ever been?
03-184 +++$+++ 5911 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A published dissent by a special trial judge? Not that I'm aware of. But the point is the court of --
03-184 +++$+++ 5912 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And how -- how often does the -- is there a dissent when there's -- when there's a full court review decision?
03-184 +++$+++ 5913 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there's often a dissent. It's -- it's hard to know from the standpoint of a researcher when -- when it is that the judge who heard the evidence and tried the case is the one who's dissenting, unless they happen to say it in their opinion, because again, there's no original opinion issued by the Tax Court judge who first heard the case. That's kept confidential by statute, which again is an important point. Congress has mandated confidentiality of the initial reports prepared even by Tax Court judges, and it has given the Tax Court plenary authority to promulgate rules governing special trial judges. It is hardly surprising, let alone impermissible under the statute or Due Process Clause, for the Tax Court to follow a similar process for special trial judges.
03-184 +++$+++ 5914 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Except that the -- the relationship between the -- the one judge and the full Tax Court is a relationship basically of people who are in the same boat with respect to what they know about or can know about law and what they can know about the evidence and the facts of the case; whereas the relationship between the special trial judge and the judge to whom it is assigned is -- is quite different because only one of them has heard evidence and only one of them is the source of conclusion about fact.
03-184 +++$+++ 5915 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. It's identical. The -- the full Tax Court --
03-184 +++$+++ 5916 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It certainly is not identical in -- in the sense that the -- the Tax Court judge then goes and listens to evidence. He doesn't. That's the whole point.
03-184 +++$+++ 5917 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, neither does the full Tax Court when it --
03-184 +++$+++ 5918 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Neither does the full Tax Court, but if the full Tax Court is disagreeing with one judge, the one judge and the full Tax Court are in the same boat. They have access to the same material. Their limits are exactly the same in each case. That is not true in the relationship between the single Tax Court judge and the special Tax Court judge. The special Tax Court judge is the only one who has heard evidence and can find facts based upon the evidence that he heard.
03-184 +++$+++ 5919 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. The -- the tax -- the full Tax Court doesn't go back and -- and hold a new trial, just like the individual Tax Court judges --
03-184 +++$+++ 5920 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I am quite aware of that. That's not -- that's not the point. I'm -- I'm saying that you cannot draw an analogy between one judge and full Tax Court and use that as an analogy to legitimize the relationship between one judge and a trial master. They are in different positions. They are not in parallel positions.
03-184 +++$+++ 5921 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, then if -- if I understand the point you're making, it's a point of the -- the -- it's the hierarchy issue, if that's -- if that's the point you're making.
03-184 +++$+++ 5922 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's the knowledge issue. The special Tax Court judge heard somebody.
03-184 +++$+++ 5923 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So did the Tax Court judge --
03-184 +++$+++ 5924 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Nobody on the Tax Court did.
03-184 +++$+++ 5925 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. That's incorrect.
03-184 +++$+++ 5926 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In other words, they're -- they're sitting hearing witnesses? They are -- they are redoing the trial? Surely not.
03-184 +++$+++ 5927 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, in a review -- if a Tax Court judge -- most Tax Court cases are tried by Tax Court judges. Tax Court judges are trial judges, and if a Tax Court judge tries a case --
03-184 +++$+++ 5928 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But we are talking about situations in which the trial judge is the special judge.
03-184 +++$+++ 5929 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm talking about the full Tax Court, Your Honor. If the full Tax Court reviews an individual Tax Court judge's decision, the Tax Court judge has presided over the trial, heard the evidence, just like the special trial judge here, and then the full Tax Court judge reviews it. That's exactly what happened in the Estate of Varian case, which is in our briefs, out of the Ninth Circuit. The parties complained that they wanted access to the original judge's report because he had been reversed -- been reversed by the full court after trial on an -- on an evidentiary issue, and the Ninth Circuit said no.
03-184 +++$+++ 5930 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Hungar, I think we understand your answer.
03-184 +++$+++ 5931 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
03-184 +++$+++ 5932 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Shapiro, you have about 4 minutes left.
03-184 +++$+++ 5934 +++$+++ FALSE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The question came up whether rule 183 forbids disclosure of this report. The answer is it does not forbid disclosure of the report. It is silent on the point. But the press release the Tax Court issued in 1983, coming from the chief judge of the court, said that this simply meant that it would not automatically be disclosed.
03-184 +++$+++ 5935 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why does 7461 require its -- its disclosure? Because it does say that the -- it's only the decision of the Tax Court.
03-184 +++$+++ 5936 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
03-184 +++$+++ 5937 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That reports of the Tax Court that have to be disclosed.
03-184 +++$+++ 5938 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our view is that of -- of the Tax Court means any report emanating from the Tax Court. That's the literal meaning of that language. It doesn't mean final.
03-184 +++$+++ 5939 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that -- that would mean that -- that you would have to make public the -- the reports of a regular Tax Court judge in cases that then go on to the full court. And that's not done, is it?
03-184 +++$+++ 5940 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's an exception for the en banc situation because legal issues are addressed en banc, not the factual issues. And there's an opportunity to dissent.
03-184 +++$+++ 5941 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but it doesn't matter. It would still be a report of the Tax Court if you don't take that language literally. If you say any report coming out of the institution is a report of the Tax Court, you would have to make public the reports of the individual Tax Court judges, which is not done.
03-184 +++$+++ 5942 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, we say there's a special statute dealing with the en banc situation that -- that governs in that situation. And that the publicity --
03-184 +++$+++ 5943 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why is that? What -- what statute is that?
03-184 +++$+++ 5944 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that's the en banc provision that counsel referred to that said that when the case is heard en banc, the trial -- the -- the single judge's report is not made part of the record. Congress' assumption there was that there would be a new -- new report issued. People would be able to dissent if they disagreed. And this process focuses on legal issues. There is no presumption of correctness.
03-184 +++$+++ 5945 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's not a -- that's not a de novo -- they can rehear matters de novo on the en banc Tax Court, can they not? That's a de novo hearing.
03-184 +++$+++ 5946 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but it addresses legal issues. It's not a device to second guess factual determinations, and there's a special statute that deals with that, which does not apply to this STJ situation, where there's a presumption of correctness applicable to what the trial judge does. And there is the general disclosure statute that applies there.
03-184 +++$+++ 5947 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't know if I'm getting -- so that's his basic point. The rule doesn't require the disclosure because they've interpreted it differently within their -- within their discretion. Statute doesn't require it and the Constitution doesn't require it. We have to go to the Constitution, I don't see exactly the implications. So I'm nervous. And now, the reports -- he says, go read 7460(b). That's what they're talking about. And then -- and again, I don't know what I'm getting into once I read it more broadly than that. And what about all evidence received by the Tax Court, including a transcript. Of course, this isn't evidence but neither is a transcript. And -- and so maybe that word evidence can be read more broadly, given the fact that it's to include a transcript of the stenographic report.
03-184 +++$+++ 5948 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think you're right, and --
03-184 +++$+++ 5949 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You think I'm right just suddenly for the for the first time? You have thought of this?
03-184 +++$+++ 5950 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I think that the intent of this provision -- and I know Your Honor consults the legislative history. The intent was to make all of the steps in the adjudicative process transparent, including the evidence, including the -- the stenographer's report, and all reports from the Tax Court.
03-184 +++$+++ 5951 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There's -- there's a very careful use of language. It says all reports of the Tax Court and all evidence received by the Tax Court and its divisions. So it's only the evidence that -- that's received by the individual judges has to be made public, not the reports.
03-184 +++$+++ 5952 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we believe that the word all is a broad, generic inclusive term that should be applied, as Judge Cudahy stated, to an STJ report that actually has to be submitted to the chief judge and that has legal effect. It's not just a casual document like a law clerk memorandum. It has legally operative effect. Congress' purpose here was very broad, to have transparency, applicable to all the steps along the way in the Tax Court. It was quite clear on that, that there are arbitrary actions at each step of the way. If you look at the Senate report and Congressman LaGuardia's statements, they said secrecy is a vicious practice in this context, and it -- it should be avoided.
03-184 +++$+++ 5953 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But we -- we don't have to get into any of that if we accept your argument about 7482(a)(1), that is, the record will be in the same manner and to the same extent as decisions of the district court.
03-184 +++$+++ 5954 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Your Honor. There -- there are three separate bases for ruling in our favor. One is the appellate review statute. The other is the disclosure statute. The third is due process. And due process should inform the construction of these statutes. This Court tries to avoid serious due process issues through its interpretation of legislation. Judge Cudahy suggested that was the right way to decide this case and we agree that it is. We thank the Court.
03-184 +++$+++ 5955 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Shapiro. The case is submitted.
03-287 +++$+++ 5959 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll now hear argument in Wilkinson against Dotson. Solicitor Cole.
03-287 +++$+++ 5961 +++$+++ FALSE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: Prisoners typically want two things: first, to improve their conditions while in prison; and second, to get out of prison as quickly as possible. Respondents' claims here are not conditions claims. They do not seek a larger cell or better food while in prison. Rather, their claims are about getting out of prison. Traditional understandings of habeas would suggest that these release-driven claims lie there, not in section 1983, and this Court's decision in Heck confirms that this common sense answer is also the correct answer. In fact, Heck establishes two bars, each of which independently prevent respondents from using section 1983 to pursue their claims here. First, Heck establishes that civil actions under section 1983 cannot be used to collaterally attack State criminal judgments. Before a prisoner can advance a claim under section 1983 that would necessarily imply the invalidity of such a judgment, he must first show that it has been favorably terminated. And Edwards v. Balisok confirms that quasi-judicial administrative decisions regarding the duration of confinement count as criminal judgments for this purpose.
03-287 +++$+++ 5962 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it isn't just duration of -- of confinement. I mean, in -- in Balisok, what you had was a determination that the confinement would be definitely less as a result of the -- the good time scheme. The -- the gut notion behind Balisok was that what you were attacking would imply that the sentence itself was invalid because the conviction was and so on. We don't have that here. What we have here is a scheme that makes a -- a sentence that is imposed a more definite sentence. We know where in the range it's going to be reconsidered. And however that may be classified, it's not simply a Balisok situation.
03-287 +++$+++ 5963 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's arguably different than the good-time credits at issue in Balisok, as -- as Your Honor notes. However, I -- I would suggest that even with respect to good-time credits, often under many State systems, good-time credits have the dual effect of moving up the parole eligibility date, as well as potentially -- and in some States, it doesn't even have an effect on the --
03-287 +++$+++ 5964 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right, but that had --
03-287 +++$+++ 5965 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of the sentence.
03-287 +++$+++ 5966 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that had nothing to do with the rationale in Balisok, as I recall it. Isn't that correct?
03-287 +++$+++ 5967 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the -- the Court -- that's -- that's correct, yes. And I guess what I'd -- I'd say is that what seemed to be driving the Court, though, was still the durational aspect of the sentence; that is, as the Court said in Muhammad, if a claim threatens no consequence for the duration of confinement, then that isn't a -- or that isn't a claim that should be brought in 1983.
03-287 +++$+++ 5968 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No -- no question. But the durational consequence in those cases was a definite consequence of longer duration, i.e., a sentence in the first place, a sentence not reduced by good time in -- in the second example. Here, there -- there is no such clear consequence. Here, the consequence is that there will simply be a period of time before a sentence already imposed will be reviewed to determine whether, in fact, it will be shortened or allowed to run. And that's different.
03-287 +++$+++ 5969 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure it is, Your Honor. Both of them are going to have definite durational consequences for confinement.
03-287 +++$+++ 5970 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No -- no question about that. At -- at the level of whether there is a durational consequence, they -- they both have it. I -- I grant you that.
03-287 +++$+++ 5971 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And, Your Honor, as far back as Preiser, this Court has noted that challenges to duration go to the very heart of habeas corpus. That's --
03-287 +++$+++ 5972 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The duration of -- of the sentence. And here, there's no implication at all that this sentence is in any way invalid, that the sentence itself or any portion of it is invalid because the parole would be a matter of administrative grace, but it doesn't -- the determination of parole eligibility or parole suitability does not go to the validity of the sentence in any way, shape, or manner. Does it?
03-287 +++$+++ 5973 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, a decision from a Federal court -- and I guess -- I think the answer to Your -- Your Honor's question is yes, it does. And the reason I say that is I think we need to look to the consequences of the Federal court decision that would follow from the claims that -- that the plaintiffs -- or I'm sorry -- the prisoners here are advancing. The State of Ohio has made individualized decisions with respect to each of these respondents that they should not again be considered for release from prison until 2005. The request -- the relief that they're requesting and the claims that they're bringing, if successful, would result in the Federal court undermining that State decision with regard to the length that they should be incarcerated. It goes directly to the -- the --
03-287 +++$+++ 5974 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It doesn't -- it doesn't shorten the length that they're going to be incarcerated. There -- there is no certainty that -- that if they win this action, they will be incarcerated for a lesser period, is there?
03-287 +++$+++ 5975 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely no certainty of that, Your Honor. But there is certainty --
03-287 +++$+++ 5976 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And -- and there was in the other cases, wasn't there? In Balisok.
03-287 +++$+++ 5977 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I don't think so. I mean, prisoners could be released in the State of Washington before the terminus of their sentence. They might not -- it isn't as though they had to serve all the way till the end, less whatever good-time credits they had. They could easily be --
03-287 +++$+++ 5978 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but --
03-287 +++$+++ 5979 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- released prior to that time.
03-287 +++$+++ 5980 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, indeed, but the -- but -- but getting the good-time credits entitled them to be -- be released earlier. They might have been released even earlier still, but their entitlement to be released earlier was a consequence, wasn't it?
03-287 +++$+++ 5981 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was, Your Honor.
03-287 +++$+++ 5982 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And there is no entitlement to be released earlier as a consequence of this.
03-287 +++$+++ 5983 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We --
03-287 +++$+++ 5984 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You just get another hearing and maybe you will, maybe you won't.
03-287 +++$+++ 5985 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. You'll -- you'll just get another hearing. But an important note on that: you'll get another hearing, and you'll get another hearing sooner than the State has decided that you should get a hearing.
03-287 +++$+++ 5986 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's true. So it makes it possible that you'll get released earlier, but -- but there's no assurance you'll -- really, the crucial question for me, I think, is whether -- whether this could have been brought as a habeas action. Could this have been brought as a habeas action?
03-287 +++$+++ 5987 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, it could have been brought as a habeas action. If you look at the nature of their complaints, they're -- they're clearly in custody. Habeas would require custody and violation of the Constitution of the United States.
03-287 +++$+++ 5988 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But they're just asking for a new hearing. They're not asking for an earlier release. What's your closest case that -- that would allow a habeas action which does not seek an earlier release but just -- just a hearing?
03-287 +++$+++ 5989 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think probably the Garlotte case, Your Honor, in which the Court allowed a habeas challenge where the only result was going to be to advance the date of eligibility for release from prison incarceration.
03-287 +++$+++ 5990 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. But it -- No, go on.
03-287 +++$+++ 5991 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it -- it doesn't advance the date of eligibility. It advances the date at which the parole board will take another look. The only eligibility is an eligibility to take -- to have another look taken and not an eligibility for release.
03-287 +++$+++ 5992 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, Your Honor, but these -- under that understanding of eligibility, where eligibility means the first possible release date. But these prisoners are not eligible for release in the sense of it's not going to happen for them unless and until the next release hearing.
03-287 +++$+++ 5993 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if they are subject to another look, they are not necessarily then eligible for release. And I think that's the point that we're getting -- let me -- let me ask a -- a sort of complementary question. Is there any reason that these --
03-287 +++$+++ 5994 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is this with an I or an E?
03-287 +++$+++ 5995 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I was hoping for an I, yes.
03-287 +++$+++ 5996 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ With an I or an E?
03-287 +++$+++ 5997 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ With an E. With an E. But if -- if you take my questioning as a compliment with an I, that's perfectly okay too. (Laughter.)
03-287 +++$+++ 5998 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'll -- I'll wait and see what the question is --
03-287 +++$+++ 5999 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let's see what it is. The -- the question is, could these claims not have been brought in advance of any application to these particular prisoners of the revised -- whatever they were -- the 1998 guidelines? And if the answer is yes, then they could be brought at a time when, I suppose, habeas would -- would not have been a possible remedy. Is -- is -- am I correct on those two points?
03-287 +++$+++ 6000 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The State concedes that if they had brought this case before a parole hearing at which the guidelines were applied, that it would be a different case, and that 1983 would be a remedy in that -- in that situation.
03-287 +++$+++ 6001 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Here's -- here's the difficulty that I -- that I have. When I read your brief, I thought, well, he must be right because this is really about custody. It's really about custody. They want to get out eventually. But then when I -- I -- when I went back to Balisok, I thought, oh, here's the problem. The problem is that it's a damage remedy in Balisok. And normally you want the person to go into 1983 to get damages. But he's going to get mixed up. When do you send him to habeas? Well, we don't want to send him to habeas unless it's clear that habeas should have been brought. And so if he's just challenging, for example, introduction of Fourth Amendment violation evidence or something like that, don't got to habeas. Don't go to habeas. You didn't have to go to habeas unless you had to, unless you had -- unless it was necessary to upset the conviction. You see? That's why that language is there. Now, I got that far. Then I said, oh, I see what you do. We should have one rule for damages. Well, that makes sense. But there's no reason not to have a different rule when you have the injunctive action, and there maybe we could follow your rule. But the next thing I come across is a statement that says, no, no, the rule is the same whether you bring a damage action or whether you bring an injunctive or declaratory relief action. And I said, well, why did we write that? You know, we're the ones who caused all this trouble. But the -- the -- well, because we didn't want to make it too complicated and -- and not have all the questions coming, well, what kind of an action is it really, et cetera. Okay. So once I got that far, I said, oh, well, I'm going to have to change something for you to win. Either I have to change the thing that says the damages should be the same as the injunctive, or I have to change something else somewhere along the line, the word necessary. I don't want to change the word necessary. Maybe I could change the other, but why bother really? Because all that's important here is people know which way they should go. Now, that's where I am at the moment, thinking give him his 1983 action. It's simpler. It follows from Balisok. Why not?
03-287 +++$+++ 6002 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, there would be some real consequences that would follow from that.
03-287 +++$+++ 6003 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's what I thought.
03-287 +++$+++ 6004 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The reason that it's important that these cases go to habeas rather than 1983 is because of the State court exhaustion requirement that's attendant with habeas. Parole claims like those advanced here are often, if not always, intricately bound up with State law issues, and the State law is often going to provide much more meaningful relief than the Federal law claims that the prisoners advance.
03-287 +++$+++ 6005 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Doesn't the Prison Litigation Reform Act require exhaustion even in a 1983 action?
03-287 +++$+++ 6006 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but as Your Honor is aware, that's an administrative exhaustion requirement which this Court referred to in Nelson, I believe, as a substantially lower gate than the exhaustion requirement imposed by habeas. Moreover, it's telling --
03-287 +++$+++ 6007 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is -- may -- may I just follow up on that question? At the administrative level, cannot these State law policies perfectly well be taken into consideration? In other words, your argument was these things are bound up with State law issues and the best place to have them resolved is -- is in a State forum. They can be resolved in a State administrative forum, can't they?
03-287 +++$+++ 6008 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They could, Your Honor, but I -- I think the types of legal determinations with respect to legal entitlements and also the court -- we would assume a State court would also consider Federal claims that might be made by the prisoners when they bring their State court claim. Those types of legal claims are better resolved by State courts. They have the expertise to make the -- the determination. And in fact, in Ohio --
03-287 +++$+++ 6009 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, couldn't one say the same thing of prison conditions that you can bring in as a 1983 action? The States know better about how their prisons are operating and what changes would have to be made. So I -- I think that you -- you may be right that the State knows more about how its parole system operates, but so does it know more about how its prison system operates. And that doesn't -- that's not what determines whether you have 1983 or habeas.
03-287 +++$+++ 6010 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but Congress, with respect to conditions claims -- and if you look at the language of the administrative exhaustion requirement in the PLRA at 42 U.S.C. 1997(e)(a), it says no action shall be brought with respect to prison conditions under 1983 without administrative exhaustion. So even Congress, in thinking about the PLRA and in thinking about requiring administrative exhaustion, understood that 1983 is really about conditions of confinement. 1983 isn't about -- it never has been about -- release. Habeas has traditionally been the relief that people -- or the cause of action that people bring when what they're interested in is relief -- or release from prison. And these claims, no one can dispute, are release-driven claims. They may not ultimately be successful in securing release, but the prisoners here --
03-287 +++$+++ 6011 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, no, I've got that part. But the -- and -- and you're right about that part. But that -- you know, that doesn't get over the -- the hump here I think because of the -- what we've written. The -- I mean, where I'm coming out now, what you've just said, is well, you know, there's going to be exhaustion in both cases. And prison conditions, if we say that habeas doesn't -- that 1983 applies here I think probably -- I can't guarantee it -- but those where prison conditions would then cover it, and then there would be exhaustion, and there -- where it doesn't seem to make difference there. And now I'm back to asking the other half of this, which is, well, all right, suppose I say I see your point, I think you're right. Now, what -- what is your recommendation? What do we change? Do we change the word necessary in Balisok, which I'd be pretty reluctant to do? Or do we drive a wedge between the damage cases and the injunctive/declaratory relief cases?
03-287 +++$+++ 6012 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think you need to do either, Your Honor. I think if we go back to Heck and look at the language there that talks about necessarily implying the invalidity of a criminal judgment, which is something --
03-287 +++$+++ 6013 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, well.
03-287 +++$+++ 6014 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- respondents concede in their brief, the only question then is does a parole decision count as a, quote, criminal --
03-287 +++$+++ 6015 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. No, but then what you're doing is taking the first half because what you're reading is you're reading that word necessary, whatever those words were in Balisok that we were just talking about, as your case satisfying that condition. And if your case satisfies that condition, then so does the case where a person wants to bring a damage action because of illegally seized evidence at his trial. Doesn't it? I mean, because all -- I mean -- and then we've swept -- then we've done -- we've really moved Balisok from what it was trying to do.
03-287 +++$+++ 6016 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that's necessarily right, Your Honor, because the illegally seized evidence at the trial -- I don't know that that would necessarily imply the invalidity of the conviction that resulted from that trial.
03-287 +++$+++ 6017 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why is he bringing his damage action? He thinks he's bringing it because what they did at that trial hurt me. Now, how did it hurt me? It hurt me because I went right to prison.
03-287 +++$+++ 6018 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, Your Honor, and that -- that's absolutely correct, but I'm not arguing for, and I want to make it very clear that I'm not arguing for any rule that would turn on the subjective intent of the prisoner in bringing their claim. It turns on the necessary implication of success on that claim, and that's a -- a distinction that the Court made both in Heck and in Balisok. They looked to what's the necessary implication. So we look to the claims here, not why they brought them, but what are the claims. And the claims here, and the particular ones that I would focus on, are the ex post facto claims. If the -- if they have success on their ex post facto claims -- and we don't believe their claims are meritorious, but if they're successful on those claims, there's no way the State's decision can stand. They are entitled to a new hearing at which they would again be considered for parole --
03-287 +++$+++ 6019 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but does that mean the -- the judgment -- the order denying release on parole is invalid? There are really two parts to it. One, you -- we're not going to release you. Secondly, your next hearing will be at a later date than you want. Insofar as you challenge the date of the hearing -- the date of the next hearing, does that necessarily imply the invalidity of the entire order denying parole?
03-287 +++$+++ 6020 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We -- we concede that if there's an ex post facto violation here, these prisoners are entitled to a new parole hearing. And I guess the --
03-287 +++$+++ 6021 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But they're not entitled to parole.
03-287 +++$+++ 6022 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Your Honor. Absolutely.
03-287 +++$+++ 6023 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So that it doesn't totally invalidate the order that is at issue.
03-287 +++$+++ 6024 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the way that -- that I've been thinking about it is if you put the State parole decision up on the wall and you put the Federal decision up on the wall, one of them has to come down. The Federal decision trumps the State decision. It can --
03-287 +++$+++ 6025 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it doesn't entirely come down. It just -- half of it comes down.
03-287 +++$+++ 6026 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The whole thing comes down, Your Honor. They're entitled both to an immediate new release hearing and --
03-287 +++$+++ 6027 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But not for release.
03-287 +++$+++ 6028 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- if they're successful on their claims, they're entitled to more frequent release hearings in the future. So the decision, the State's --
03-287 +++$+++ 6029 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- but isn't it true that one aspect of your order that's under attack is they had refused to grant them parole?
03-287 +++$+++ 6030 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
03-287 +++$+++ 6031 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that remains.
03-287 +++$+++ 6032 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It doesn't, Your Honor. They have to decide that again. That -- that order is void ab initio. It's as though it were never entered. They have to make a new decision about whether or not this person should -- should have parole and that they cannot in any way -- the State cannot rely on the prior decision that they reached on that issue.
03-287 +++$+++ 6033 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought the only relief they were seeking was a more prompt next hearing.
03-287 +++$+++ 6034 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, they -- Dotson's complaint, I believe at page 20 of the joint appendix -- he wants to, quote, proceed toward a prompt and immediate parole hearing in accordance with the statutory laws and administrative rules in place when the plaintiff committed his crimes. They want an --
03-287 +++$+++ 6035 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But aren't -- aren't those claims moot or academic now? Because, as I understand it, he has had another parole hearing. So he's -- with the hearing that he was seeking, he's already had another. So he's not complaining about the absence of a hearing or -- or flaws in the procedure at the hearing. I thought that this case now reduces to a clean question about the retroactive application of the new guidelines.
03-287 +++$+++ 6036 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it isn't a clean question, Your Honor, because exactly the same error that he alleges infected his first hearing was present at his second hearing. If -- if you look at the materials that they added to their brief at lines 3, 7, and 8 where they have the new parole decision, it's clear that Dotson's 2002 parole decision was predicated on exactly the same guidelines, exactly the same 1998 guidelines that he says violated his rights under the Ex Post Facto Clause. So, in fact, if anything, it's made his situation worse because a Federal decision on his claims now would both necessarily imply the invalidity of his previous hearing and the 2002 hearing, and the 2002 hearing was a release hearing. Unlike the halfway review that occurred earlier, it was a full-fledged release hearing in 2002, at which the parole board decided both that he should not get parole then and that he should not again be considered for parole until 2005.
03-287 +++$+++ 6037 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was there -- maybe I'm wrong about this, but I thought there no challenge being made to the 2002 hearing.
03-287 +++$+++ 6038 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But what Heck makes clear is it doesn't matter what you say you're challenging. What we need to look to is what's the necessary implication of securing success on your claims in Federal court for a State decision. Here, the necessary implication, if they're successful on their ex post facto claims, is going to be that the 2002 decision can't stand, the 1999 decision --
03-287 +++$+++ 6039 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why can't it simply be that prospectively for this class of prisoner, the old guidelines will apply, prospectively without undoing anything that's happened in the past?
03-287 +++$+++ 6040 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think for the same reason that in Balisok I don't think there could have been a prospective order that said -- said something like the method you have for choosing decision-makers creates fraud, bias, and deceit, on a going-forward basis you must change that method for selecting decision-makers. Saying that you have to change it on a going-forward basis would mean, necessarily imply, that there had been fraud, bias, and deceit by the decision-maker that would mean that --
03-287 +++$+++ 6041 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I think twice you started something and our questions impeded you. But I think you were equating the parole board's decision to a criminal sentence, and so you -- you were saying just as the -- the Federal authority can't come in and nullify the State criminal sentence, neither can it nullify the parole board determination. And -- and I thought that the comparison between a -- a sentence -- a criminal conviction and sentence and a parole board's discretionary determination -- you seemed to be putting those on the same plane.
03-287 +++$+++ 6042 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not exactly on the same plane, Your Honor, but recognizing that this Court in Balisok said that post-judgment administrative decisions regarding the duration of confinement also count as criminal judgments that are protected for purposes of -- of the Heck doctrine. And in Greenholtz, this Court --
03-287 +++$+++ 6043 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- but the -- the generality at which you keep referring to it, with respect to conditions of confinement, is a -- is a higher level of generality than anything that Balisok decided. In Balisok, the particular decision was a decision to revoke an entitlement to be released at whatever the date the good time would give, and -- and that is a much more specific -- I mean, that literally affects an entitlement to be released. It is not merely a decision with respect to length of confinement.
03-287 +++$+++ 6044 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, if this turns on whether or not it's an entitlement, I would agree with you that it seems good-time credits might be different from an entitlement sense than parole. But -- but all the way back, in tracing the cases from Preiser forward, the Court has talked about duration of confinement, and certainly no one can argue that the decision here is going to have dramatic consequences for the duration of these prisoners' confinement.
03-287 +++$+++ 6045 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We -- we don't know what consequence it will have for the duration of his confinement. All we know is that it will have a consequence in determining the date at which the next look will be taken by the parole board to see whether he then is in a condition to be released. That's all we can tell.
03-287 +++$+++ 6046 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor, but they're -- they're pressing ex post facto claims. And as this point -- Court pointed out in Garner in 2000, they can maybe bring those claims based on changes in frequency of parole hearings, but they're going to have to show a definite impact on the quantum of punishment that they receive as a result of that change. So if they're going to be successful on their ex post facto claims, they're going to have to show an impact on the duration of their confinement. Either they have no ex post facto claim because there's no durational impact on their --
03-287 +++$+++ 6047 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay. But you're -- you're assuming -- your argument now is assuming that they are going to be successful on this element, that you say they've got to satisfy later.
03-287 +++$+++ 6048 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, but that's the Heck --
03-287 +++$+++ 6049 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And -- and whether they are or not has nothing to do with -- with Balisok and Heck.
03-287 +++$+++ 6050 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I disagree, Your Honor, because in Heck and Balisok, the Court said look to what happens if they're successful on their claims. So I'm -- we're -- the State is supposed to hypothesize that somehow they're going to be successful on these claims. We don't agree it's going to happen, but once we hypothesize that they're going to be successful on an ex post facto claim, it means they're going to have to show, have to demonstrate a durational impact on their sentence.
03-287 +++$+++ 6051 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Sure. It also -- it also means that if -- if -- assuming your argument is sound, if you lose this case, you win the war. (Laughter.)
03-287 +++$+++ 6052 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At -- at some level, I think there's an -- an inherent and fundamental tension in their position, and -- and the coin could flipped and conversely there's that same tension in ours.
03-287 +++$+++ 6053 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are -- are you sure that that's what they have to prove, that -- a durational impact? Wouldn't it be enough to show that they were deprived of an opportunity to have the sentence shorter? Wouldn't -- wouldn't it -- assuming there was an ex post facto violation, wouldn't that be enough of an injury, that they lost an opportunity to have their sentence shortened?
03-287 +++$+++ 6054 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Your Honor, I believe what makes out the ex post facto claim is an increase in the quantum of punishment after they've committed their crimes. So they need to show that as an element. I -- I see -- I'd like to reserve the remainder of my time for rebuttal, if I could.
03-287 +++$+++ 6055 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You may do so. Mr. Lewis.
03-287 +++$+++ 6057 +++$+++ FALSE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: This case presents a straightforward opportunity to apply the Heck rule. Respondent Johnson's section --
03-287 +++$+++ 6058 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can you tell us why -- why is it still live when they -- when they already received a second hearing? Or why is not moot?
03-287 +++$+++ 6059 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Johnson still has remaining claims for prospective injunctive relief in this case and, as well, declaratory relief. What may be mooted is his claim for retroactive injunctive relief, in other words, a new parole hearing. I think in order for him to pursue that type of a claim, he'd have to go back down to the district court.
03-287 +++$+++ 6060 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What -- what is --
03-287 +++$+++ 6061 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, put in plain language what it is Johnson is claiming he's entitled to. I don't understand.
03-287 +++$+++ 6062 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, he -- really three different things. He's requesting prospective injunctive relief, fix the due process violations that are going on in Ohio parole proceedings.
03-287 +++$+++ 6063 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Which is a new -- a new parole hearing. Isn't -- I mean, it -- I --
03-287 +++$+++ 6064 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How could that be fixed?
03-287 +++$+++ 6065 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes. How -- how can it be fixed except by giving him a new parole hearing?
03-287 +++$+++ 6066 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, he does have a class action. He filed a class action and he's trying to fix the proceeding prospectively. It doesn't necessarily require him to have a new parole hearing. He's still in confinement and will very likely have a new parole hearing, a new parole hearing that he wants the proceedings to be different in. He's not necessarily asking for a new parole hearing. He's saying --
03-287 +++$+++ 6067 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why isn't he? If -- if -- what he's saying is the past proceedings were invalid, I want you to do it right in the future.
03-287 +++$+++ 6068 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure. I think that was part of his claim, which might be mooted, but he's also saying in any future --
03-287 +++$+++ 6069 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. It -- it isn't mooted because he still got it done wrong. The second hearing was still wrong.
03-287 +++$+++ 6070 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we don't --
03-287 +++$+++ 6071 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ His claims here -- if his claims here are correct.
03-287 +++$+++ 6072 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't know that for sure, but part of his claim as well is to say in future parole hearings that I'm going to be subjected to, even if you don't give me a new one, in future parole hearings that I'm going to be subjected to, I want these processes fixed to -- to come into compliance with due process. And I think that's separate and apart from --
03-287 +++$+++ 6073 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You -- you say we don't know whether the -- the new parole hearing he got was still invalid?
03-287 +++$+++ 6074 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think there's enough in the record to determine that.
03-287 +++$+++ 6075 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Oh, so we can assume that that was valid. You're -- you're willing to assume that for purposes of this case?
03-287 +++$+++ 6076 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I am not willing to assume that. I -- I don't think we can say one way or the other.
03-287 +++$+++ 6077 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well,
03-287 +++$+++ 6078 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We can't yet.
03-287 +++$+++ 6079 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay, fine.
03-287 +++$+++ 6080 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We may intend to.
03-287 +++$+++ 6081 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Then we take it as valid. Then we take it as valid. That's not a claim you're challenging. But I take it your claim is in the year 2009 he will have another hearing.
03-287 +++$+++ 6082 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Actually 2005.
03-287 +++$+++ 6083 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ 2005? Okay, 2005 he'll have another hearing.
03-287 +++$+++ 6084 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely.
03-287 +++$+++ 6085 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And in the year 2005, I want not to have the -- what are they called? The 1998 guidelines. I don't want my 1998 guidelines applied in the 2005 hearing because you have some theory, maybe good, maybe bad, but it's a theory that that would violate the Constitution of the United States.
03-287 +++$+++ 6086 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
03-287 +++$+++ 6087 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So you're saying he's going to have this. I want an injunction or declaratory relief they can't do it.
03-287 +++$+++ 6088 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, and as well, he says I want to be heard at this next parole hearing. Now, that was -- part of his due process allegations in this case were that he -- he wasn't even allowed to meaningfully participate in --
03-287 +++$+++ 6089 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And he's saying it violates the Constitution in two respects: one, they won't listen to me; and two, they apply the 1998 guidelines.
03-287 +++$+++ 6090 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's essentially it.
03-287 +++$+++ 6091 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's it. Okay. We're talking now about this 2005 hearing and he wants new procedures, and the question is, is this 1983 or is it habeas?
03-287 +++$+++ 6092 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- that's correct.
03-287 +++$+++ 6093 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
03-287 +++$+++ 6094 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and it is section 1983 because it doesn't violate the Heck rule. This --
03-287 +++$+++ 6095 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And what -- what is your -- what is Johnson's mootness argument?
03-287 +++$+++ 6096 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, to the extent in his complaint he was seeking a new parole hearing as a result of the challenge to the '99 decision, that's probably mooted because he has received this 2001 hearing and we just don't know enough about it to know whether he's going to challenge it or not. He'd have to amend his complaint in the district court.
03-287 +++$+++ 6097 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Could -- is it possible that both Dotson and Johnson could get new hearings by -- filing habeas --
03-287 +++$+++ 6098 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so.
03-287 +++$+++ 6099 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- petition?
03-287 +++$+++ 6100 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so. I don't think that Johnson has a Federal habeas remedy here because the Federal habeas statute is a challenge to the legality of custody, the legality of confinement, and that's not anything that he's challenging in this case.
03-287 +++$+++ 6101 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What would you do if there was an allegation of a serious procedural flaw in a past hearing? The parole commission was -- was drunk or they read the wrong file or something, and it was just a challenge to the invalidity of the past hearing. Would that be 1983 or habeas?
03-287 +++$+++ 6102 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's a closer call, but I think it --
03-287 +++$+++ 6103 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's why asked you. Why isn't it -- (Laughter.)
03-287 +++$+++ 6104 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. And -- and I -- I think it is still section 1983 if certain things are present. That is, is he going to necessarily imply the invalidity of the duration of his sentence by winning his case? And if that's meets the Heck rule and if he isn't, then I think he can proceed in section 1983.
03-287 +++$+++ 6105 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do we have any case in which what was being -- what was sought to be challenged in a habeas action was not the duration of the sentence, but the procedure by which the duration of the sentence was determined?
03-287 +++$+++ 6106 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't --
03-287 +++$+++ 6107 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is there any -- why -- why shouldn't that be a habeas action? Why shouldn't 1983 be limited to prison conditions, which is what we've always -- and referred to it as -- as that in the past?
03-287 +++$+++ 6108 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think in the hypothetical that you've presented, Justice Scalia, if the prisoner wins the case in that particular case, then his sentence is invalidated, and I think that's the important critical factor here.
03-287 +++$+++ 6109 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, no, no, not necessarily. He -- he's just saying the parole hearing I got lacked due process safeguards. Had I had those safeguards, I might -- I might -- have been given a shorter sentence. I can't prove I would have. I'm not challenging the sentence really, but I want a new hearing. I didn't get due process. Give me a proper hearing because I might get out earlier. Why shouldn't that come under habeas?
03-287 +++$+++ 6110 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because it's not a challenge to the legality of the confinement.
03-287 +++$+++ 6111 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ My law clerk found two cases which we've just looked at briefly. One is called Wilwerding v. Swenson and the other Johnson v. Avery where she says that in those two cases people were using habeas to challenge prison conditions even. Now, so there are -- there are two cases that, if she's right -- and she's usually right -- that -- that -- where habeas was used to challenge prison conditions. So I've thought, well, if they can use it, they certainly could use it here.
03-287 +++$+++ 6112 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, and I -- I think point with -- with both of those decisions is that the Heck rule did not come into play because the prisoners must have gone through and exhausted their State court remedies, and so there wasn't an issue as to whether they must bring their claim in habeas.
03-287 +++$+++ 6113 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. It was a different issue, but it said habeas could be brought.
03-287 +++$+++ 6114 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure. I think the Court in -- in that particular case --
03-287 +++$+++ 6115 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So habeas could be brought here?
03-287 +++$+++ 6116 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so.
03-287 +++$+++ 6117 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why not?
03-287 +++$+++ 6118 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think there's a remedy in habeas for the respondent Johnson in this case because the first thing that's going to be asked when he goes to the Federal district court to seek habeas relief is, well, are you challenging the legality of your custody?
03-287 +++$+++ 6119 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, and they say sure -- sure I am. I'm saying I had terms. You know, I was going to be here under conditions A, B, C, and A, B, C in my opinion mean I will be released sooner, and instead, they gave me D, E, F, and D, E, F means I'm likely to be released later. I can't guarantee it. That's what he'll say. He says I can't guarantee it, but I wouldn't be bringing this case if I didn't think at least it was a shot.
03-287 +++$+++ 6120 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. And -- and -- but he's not necessarily challenging the legality of his custody.
03-287 +++$+++ 6121 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but -- but that's part of the conclusion that we're going to have to reach to -- to resolve the case. Why isn't he? How is that that much different than if a judge -- let's assume, under a proper sentencing guideline scheme, the judge just uses the wrong guideline. The man is going to go to jail for either 5 or 10 years. We don't know which. But that's -- that's a classic habeas case. Here, he's going to stay in a prison for 5 or 10 years. We don't know which. Why isn't this a classic habeas case?
03-287 +++$+++ 6122 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because I think in -- in the first hypothetical, Your Honor, that -- that you gave, the challenge, if successful, would -- would completely invalidate the sentence that he received. They'd have to redo the -- the sentence. And -- and I think that's the critical distinction in this case, is that when Johnson files his complaint, he has a 10- to 30-year sentence by the -- by the State court. If he wins, he still has a 10- to 30-year sentence.
03-287 +++$+++ 6123 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it wouldn't completely invalidate the sentence. We know that he's still going to be held and he's going to be held in custody. It's a question of how long, which is exactly what this case is.
03-287 +++$+++ 6124 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But in the hypothetical you propose, Justice Kennedy, the -- the prisoner was actually -- would be actually challenging the sentence he received, and by winning the case, he's going to undo the State court sentence.
03-287 +++$+++ 6125 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, well, those cases happen to involve -- happen to involve sentences. This case doesn't involve a sentence. It involves an opportunity to have his sentence shortened. And if habeas can be brought for that, we would phrase it differently. We wouldn't say it would have to invalidate the sentence. We would say it would have to invalidate the proceeding that could have shortened his sentence. I grant you we can't use the same language we did in the earlier cases, but if this is properly a habeas action, then we -- we can get some language to make it fit.
03-287 +++$+++ 6126 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't -- I don't think it is properly a habeas action. I think even in the decisions where courts may have heard similar claims in habeas, I think it was a matter of just saying, well, the prisoner is already here. He's already exhausted all of his State court remedies. It doesn't really matter whether it's section 1983 or habeas.
03-287 +++$+++ 6127 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Suppose we wrote an opinion that said, whatever the reasoning -- I don't know what it would be right now -- that said in the future your client should go ahead in 1983. I'm putting you in a slightly awkward position, so don't answer if you don't want to. But I mean, for the future all these cases will be brought in habeas. Now, suppose that's what the opinion said. We're absolutely making it clear just what the -- would there be any harm done?
03-287 +++$+++ 6128 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think there would be.
03-287 +++$+++ 6129 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now, what would that harm be?
03-287 +++$+++ 6130 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that by -- by having a rule of that sort, that it would be expanding the jurisdiction of habeas and it would start to swallow up otherwise cognizable section 1983 claims.
03-287 +++$+++ 6131 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And why would that be bad?
03-287 +++$+++ 6132 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And why --
03-287 +++$+++ 6133 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry?
03-287 +++$+++ 6134 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why would that be bad?
03-287 +++$+++ 6135 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, because the Congress has enacted a statute --
03-287 +++$+++ 6136 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, no. But I mean, is -- I'm asking you a practical question as a practicing lawyer. Would it be bad?
03-287 +++$+++ 6137 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely it would.
03-287 +++$+++ 6138 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Because?
03-287 +++$+++ 6139 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because there's a statute that allows --
03-287 +++$+++ 6140 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I mean, leaving aside -- Congress changed the statute. It says absolutely it's going to be habeas. Is there any bad consequence in the law?
03-287 +++$+++ 6141 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's going to give States a license to violate civil rights that will otherwise not be protected under the statute.
03-287 +++$+++ 6142 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ We'll catch them in habeas.
03-287 +++$+++ 6143 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but the -- the State exhaustion requirements in habeas are much tougher. Of course, the State wants them to have to go through State exhaustion.
03-287 +++$+++ 6144 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Ah, so it comes down to that.
03-287 +++$+++ 6145 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's really the critical --
03-287 +++$+++ 6146 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You said -- you said a moment ago that it would be expanding habeas, and I'd like you to expand on that. It would be expanding habeas, I am assuming, because in every successful habeas case, the ultimate remedy that the court can order, if the State does not snap to it, is the immediate release of the prisoner. And I take it when you said it would expand habeas, it would expand it because this would not be an immediate release case no matter what. Is that correct?
03-287 +++$+++ 6147 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
03-287 +++$+++ 6148 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
03-287 +++$+++ 6149 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You would basically end up going to a Federal district court seeking habeas relief asking for processes to be changed prospectively.
03-287 +++$+++ 6150 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And that's why they could not bring habeas in this case because if they won, they still would not have shown anything that entitled to them to get out now or get out now unless the State within 30 days does something. Is -- is that the nub of it?
03-287 +++$+++ 6151 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- that's really it, Justice Souter.
03-287 +++$+++ 6152 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I'm -- I'm not sure. It depends how you formulate the order. The -- the judge says, I'm going to order this prisoner released unless, within 6 months, he has a parole hearing under the guidelines I set. That's the way the habeas statute works.
03-287 +++$+++ 6153 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if that's the relief that the -- the prisoner was seeking, I think that is clearly a habeas claim. But that's not what Johnson is claiming in this case. He's not asking for entitlement to release at all. He's asking for the processes to be changed prospectively for future parole hearings, and he's asking for declaratory relief.
03-287 +++$+++ 6154 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Regardless of what he's asking for, if he got what he wanted, he still would not be entitled to any immediate release.
03-287 +++$+++ 6155 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's absolutely correct.
03-287 +++$+++ 6156 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ He would still have a sentence of X years, and the question is, how often are we going to look at him to decide when, within X years, we may let him out. Is that --
03-287 +++$+++ 6157 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- that's absolutely it. He cannot -- by winning his case, he's not going to shorten his sentence in any way. And that's -- that's a big distinction from the Balisok case where there was an automatic entitlement to a shorter sentence --
03-287 +++$+++ 6158 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, he might --
03-287 +++$+++ 6159 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- for Balisok in that case.
03-287 +++$+++ 6160 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- he might shorten the term of his confinement.
03-287 +++$+++ 6161 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Might but not necessarily. And this Court made very clear most recently in the Nelson decision --
03-287 +++$+++ 6162 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you could say the same thing when you're challenging the sentence. He might but he might not. We're just -- we're just hearing the case.
03-287 +++$+++ 6163 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think a challenge to the sentence necessarily invalidates that sentence if you win. But a challenge to parole is much different because you're not affecting the sentence if you win your case. And the term necessary is completely necessary to the Heck analysis, as this Court made clear most recently in the Nelson case from last term.
03-287 +++$+++ 6164 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's the nub of it I guess. The fact that he may be granted parole has no implication for the validity of the sentence.
03-287 +++$+++ 6165 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's absolutely right.
03-287 +++$+++ 6166 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In fact, it assumes the sentence is valid, but that he will probably stay clean if he gets out. That's all it means, isn't it?
03-287 +++$+++ 6167 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's really all it means. And this Court last term in Muhammad in -- in footnote 1 made clear that the incarceration that matters for this analysis is the -- in the incarceration of the sentence from the State court. And I think that's -- that's what the Court needs to look at, is what is Johnson's effect on the State court judgment or sentence. What's the necessary implications? Not in this case at all. And really, this case I think has already been decided by Wolff. It's something that the petitioners sort of don't mention too much in their briefs. In Wolff, the prisoners in -- in that case were trying to get their good-time credits back. I think this is an easier case than the Wolff decision. And what the Court did was parse out, okay, you can't get your good-time credits back, but you can seek prospective injunctive relief to fix the processes that are used in connection with depriving prisoners of good-time credits. And that's precisely what Johnson is seeking here. Your Honor, the other thing I wanted to mention was the notion -- Your Honors, the other thing I want to mention was the notion that there's no State review of these decisions. The Prison Litigation Reform Act clearly provides for State administrative review of even challenges to the process. So the -- the State of Ohio could easily set up an appeal process administratively to -- to correct that problem.
03-287 +++$+++ 6168 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Lewis.
03-287 +++$+++ 6169 +++$+++ TRUE +++$+++ MR. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
03-287 +++$+++ 6170 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Untereiner, is it?
03-287 +++$+++ 6172 +++$+++ FALSE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Stevens. Justice Stevens, and may it please the Court: I'd like to, first of all, go to the point that Justice Ginsburg raised about the allegations in Mr. Dotson's complaint. This case has -- has become much simpler with respect to Dotson because any claim that he might have had about this 2000 scheduling decision has been mooted. What's really left are claims for future injunctive relief, for prospective relief. These are classic 1983 type cases. Prisoners have been bringing lawsuits since Wolff against McDonnell alleging that parole procedures and other kinds of procedures, disciplinary procedures ought to be reformed and seeking future injunctive relief with respect to those kinds of -- of procedures. In Edwards against Balisok, this Court indicated that ordinarily claims for prospective injunctive relief will not be barred by the Heck doctrine because ordinarily they will not call into question or necessarily imply the invalidity of any previous decision. So to Justice Breyer's question, this would require a change in the law, and it would, I think, fairly substantially cut back on the kinds of suits that have been brought for 30 years under Wolff because in all kinds of suits like this, the State would argue, as the petitioners are arguing today, that there's some prior administrative decision that's called into question by a future claim for injunctive relief with respect to some aspect of the procedures relating to good-time credit revocation or parole or the revocation of probation. So I think this would be a fairly substantial change in the law. A lot of these claims would be barred by Heck. The -- Justice Scalia, you asked a question about the habeas, the scope of habeas relief. And I think it's important to understand that the lower courts have generally held that habeas is not available for these kinds of claims that are prospective only, seeking changes in future procedures. There are some lower court cases that say that where a prisoner seeks release on parole and demands a right or claims a right to release on parole, that might be cognizable in habeas, but the vast weight of authority in the lower courts is that claims that only seek an -- the right to a new parole hearing, the outcome of which is completely discretionary --
03-287 +++$+++ 6173 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You want a 1983 hearing in which a United States district judge tells the parole commission, now, here are your marching orders for future cases. You have to comply with this rule, that rule, this rule. What is an analog that you can give us where United States courts have done this under 1983? Using an administrative case, if the -- if the agency does it the wrong way, we reverse that decision. It would be like a review of a conviction that's not final. Have we had cases where under 1983 litigants come in and say, now, these agencies are doing it the wrong way? You have to -- can you give me an analog?
03-287 +++$+++ 6174 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think there -- there are a fair number of cases in the lower court where -- lower courts where these types of claims for injunctive relief have been brought and the Federal courts have ordered, on a prospective basis, that the States conform to all kinds of -- I mean, Wolff is a case like that I think where the -- the State was required to do certain things in the future. So I think these are ordinary 1983 claims for injunctive relief.
03-287 +++$+++ 6175 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is there any significant difference between this case and Wolff? I mean, Wolff was a case of procedural fault supposedly, and if those faults were cured, someone would have a better chance at getting good-time credit. Wasn't that what --
03-287 +++$+++ 6176 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-287 +++$+++ 6177 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So it seems to me it's very -- very close to your situation.
03-287 +++$+++ 6178 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is very close, Justice Ginsburg. Dotson is essentially making two claims for prospective relief. He is saying that these 1998 parole guidelines effectively rescind his eligibility for parole. At the time of his conviction, he was entitled to parole after serving 15 years. Under these guidelines, he'll have to wait till -- until 32 and a half years have passed before he's eligible for parole. And he's claiming that in -- in his next parole release hearing, which is in June 2005 and beyond, the State is required to apply the old rules to him so that he'll be eligible. So this is very much like what was at issue in Wolff. The second claim he has is that he's entitled to annual parole release hearings in the future. Again, it's a future -- it's a prospective claim only. In the future, he will be entitled to annual parole release hearings, and the new rules say that the State can postpone those hearings for up until 10 years. So on both of those claims, he is seeking changes in the future, and these are classic 1983 type cases that have been brought, as I say, for the last 30 years in the lower courts. Now, the Heck test requires a showing that if he prevails on his section 1983 claims, he would -- that would necessarily imply the invalidity of his underlying conviction or sentence. And I think this case is very different from the Balisok case. There -- there was a colloquy about that earlier. I think that Balisok is clearly distinguishable because the administrative decision there would have had an immediate and direct impact on the duration of the prisoner's sentence by -- by revoking the good-time credits. Whereas, here, the impact is very, very speculative. Justice Souter, you referred earlier to a durational consequence. The durational consequence here is really quite hypothetical and remote. If he prevails on his 1983 claims, all he will be entitled to are future hearings, and since parole is entirely discretionary in Ohio, we can't predict the outcome of those proceedings. He'll also be entitled to -- merely to be considered eligible for parole in the future. So I think that the -- the consequences -- any impact on -- on the duration of his confinement is -- is really quite hypothetical here and it would require an expansion not only of the Heck rule but also of habeas jurisdiction to resolve this case in the State's favor. Unless there are any further questions, we would ask that the Court affirm the Sixth Circuit's unanimous decision in favor of Dotson. All 11 members of that court found that Dotson's claims were not barred by Heck, and this Court should affirm.
03-287 +++$+++ 6179 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Cole, you have about 4 and a half minutes left.
03-287 +++$+++ 6181 +++$+++ FALSE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. A number of points. I wanted to start by responding to Justice Souter's question, which was again asking about this need for entitlement to early release as part of habeas, and would ask the Court to consider the In re Braden case where a prisoner in Alabama was seeking to challenge a detainer that had been issued by Kentucky. And the basis for the challenge to the detainer in habeas was the fact that it was having implications for his parole eligibility in Alabama. So there, there was not going to be necessarily an entitlement to earlier release, but simply a difference in the parole considerations. Second, Justice O'Connor, with respect to your questions about mootness, the only point that I would add is that if this case is moot now, it was moot when the Sixth Circuit decided it as well. So if mootness is the direction we're going, I think there need to be a decision vacating the judgment below --
03-287 +++$+++ 6182 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what's your position as to whether or not it's moot?
03-287 +++$+++ 6183 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we don't believe it's moot either, and in -- in fact, for two reasons. First, once again, it's threatening consequences for an existing decision, albeit it not the one that was originally threatened or where invalidity would be implied below, but there is a new one where that would have that consequence. In terms of bad consequences, I think the single biggest bad consequence of directing these prisoners to 1983 rather than habeas is it's going to deprive them of the opportunity for meaningful relief in Ohio's courts. The Layne decision in the last -- decided just 2 years ago, three prisoners brought a declaratory judgment action about the way parole works in Ohio. They were successful and their case resulted in 3,000 prisoners receiving --
03-287 +++$+++ 6184 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- but you raise deprivation of the benefit they would get from the Ohio courts. If they wanted that benefit, they could have brought a 1983 action in State courts. State courts have jurisdiction. So it's a little odd for you to say, oh, they're being deprived of a benefit when they're telling you by this very lawsuit they don't want it.
03-287 +++$+++ 6185 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, Your Honor. At the same time, this -- bringing this -- this case in 1983 in Federal court means that they're not going to be able to get injunctive relief on State grounds under the Pennhurst doctrine. So they are depriving themselves of a chance to get that type of meaningful relief that Ohio courts are offering and that courts in other States are offering. The other -- the other point I wanted to make is that with respect to Petitioner Johnson's argument, his understanding of sentence, that if it doesn't impact the sentence, it can't be in habeas, would mean that parole revocations can't be in habeas either. A parole -- parole -- when you're on parole, you're still serving part of your sentence, as he understands it, part of the initial term that the court has imposed upon you. Granted, you're not doing it in prison, but a parole revocation wouldn't impact your sentence. It would merely bring you back into prison to serve the remainder of your sentence rather than having you serve it on the street. So I think that understanding of sentence can't make sense for -- for habeas purposes.
03-287 +++$+++ 6186 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I think sentence means custody. Don't you think it means custody?
03-287 +++$+++ 6187 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but to the extent we're talking --
03-287 +++$+++ 6188 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The custody you've been sentenced to?
03-287 +++$+++ 6189 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But to the extent we're talking about duration of custody or duration of confinement, again, the claims here do have a -- success on the claims here would have a meaningful impact on the duration of confinement. This Court in Muhammad said -- I think this is probably the -- the closest quote on point -- challenges to particulars affecting the duration of confinement are the province of habeas corpus. This is a challenge to a particular, the parole procedures, that's affecting the duration of their confinement. Or at least that's their allegations, and that's what success on their claims is going to mean. And because of those durational consequences, as well as because of the consequences of success on the merits for previous State parole decisions, we believe that those claims are better routed to habeas than to 1983. If there are no further questions.
03-287 +++$+++ 6190 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I had one further question. Are you asking us to change anything in Wolff against McDonnell, or can we follow that case?
03-287 +++$+++ 6191 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think we can follow that case as it's been reinterpreted in Heck. Wolff said that -- well, Heck said that Wolff was about challenges that would not -- and I believe the language is -- necessarily vitiate the underlying decision. So the way Heck understood Wolff was that the procedural challenges there, with regard to the prospective relief they were seeking, were not the type of relief that would necessarily vitiate any decision that had already been made. Here, by contrast, the claims that they're bringing, the ex post facto claims, if they're successful on the merits, would necessarily vitiate the decisions that have gone before. Thank you, Your Honors.
03-287 +++$+++ 6192 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Cole. The case is submitted.
03-388 +++$+++ 6196 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument in Bates against Dow AgroSciences. Mr. Frederick.
03-388 +++$+++ 6198 +++$+++ FALSE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens, and may it please the Court: Pesticides are economic poisons designed to kill living things. Sometimes they do not work as designed. For more than a century until the 1990's, courts routinely permitted farmers to bring claims against pesticide manufacturers for crop damage caused by pesticides. In enacting amendments to FIFRA in 1972, Congress did not intend to displace those preexisting State law remedies. The farmers here allege claims for defective design, defective manufacturing, fraud, breach of warranty, and failure to warn for a brand new product that severely damaged their peanut crops. I'd like to start with our narrowest theories for reversal and demonstrate for three reasons why those claims survive preemption. The defective design and manufacturing claims challenge the product's composition, not its label. The fraud, warranty, and negligence claims involve general legal duties, not pesticide-specific requirements, and the failure to warn and fraud claims are not different from or in addition to FIFRA requirements. Now, with respect to the first point, Dow concedes at pages 43 and 49 of its brief that defective design and manufacturing claims generally are not preempted. That concession warrants a remand here, as this case was decided before discovery, enable the farmers to develop their claims.
03-388 +++$+++ 6199 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But couldn't you make every failure to warn claim a defective design claim? That is, they didn't warn about the effects, but those effects would not have been present if the product had been designed to assure that there wouldn't be any adverse effect on the peanut crop.
03-388 +++$+++ 6200 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, the way the Restatement of Torts and Product Liability in sections 1 and 2 describe, there are basically three theories that products liability claims can proceed on: a defective design, defective manufacturing, and defective warnings. The restatement explains that they are distinct legal theories that go to different problems that the manufacturer has caused with respect to the product. A defective design claim asserts that the composition was inadequate and that a properly designed product could have been put on the market that would not cause the harm.
03-388 +++$+++ 6201 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Frederick, on the defective design claim, presumably that's based on a factual theory that Dow could have reasonably designed Strongarm to be safe for growing peanuts in high-acid soil.
03-388 +++$+++ 6202 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
03-388 +++$+++ 6203 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But doesn't that mean your client should have to put forward some evidence establishing a material issue of disputed fact on that point?
03-388 +++$+++ 6204 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly, but here --
03-388 +++$+++ 6205 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it didn't do that.
03-388 +++$+++ 6206 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well here, Your Honor, the motion for summary judgment that Dow filed was not based on the merits of the claims. It was based on them being preempted, displaced as a matter of Federal law. They also asserted a limitation of -- of remedy provision. But we never had discovery in this case. The District Court, after finding jurisdiction, considered Dow's motion for summary judgment on preemption and locked us out of the courthouse door before we ever had a chance to prove that a safer design for the product could have been made. And that's where we think the court's decision below was overbroad and should be reversed.
03-388 +++$+++ 6207 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The -- the problem I have with -- with the Government's case and with the respondent's case is that -- it's really the obverse of what Justice Ginsburg said. Their problem is that they would recast everything as a warning.
03-388 +++$+++ 6208 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely correct.
03-388 +++$+++ 6209 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does the restatement have some specific provisions that say no matter how good the warning is, you're still entitled to proceed when there's a -- I don't know -- dangerous product or defective product or something?
03-388 +++$+++ 6210 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Restatement sections 1 and 2 address this, and what the restatement says is that if you can show that the product could have been reformulated to be properly designed, then the existence of a warning that might go to certain of its uses would not negate a defective design claim. The Texas Supreme Court --
03-388 +++$+++ 6211 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Even -- even if the warning specifically covered that design defect?
03-388 +++$+++ 6212 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that's -- that's correct. And what the restatement --
03-388 +++$+++ 6213 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So even if this product said, warning: may not be effective in high pH soils, that's not good enough?
03-388 +++$+++ 6214 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under the restatement rule, which Texas has adopted in the Uniroyal case, which we've cited in our brief I think at page 47, that is true because the restatement explains that there are certain warnings that could be ignored or not observed or not understood properly and that if it can be proved that a properly designed product would be on the market, there are public policy reasons why that's what we want to encourage manufacturers to do. I mean, under --
03-388 +++$+++ 6215 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ At any cost? I mean, what if it -- you know, yes, I can -- I can sell you stuff that will -- that will work in high pH soil, but it's going to be three times as effective. Do I have to sell it?
03-388 +++$+++ 6216 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the --
03-388 +++$+++ 6217 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can't I just sell it for those people who don't need it for -- for high pH soil at a third the price with a warning that says, hey, by the way, don't use this in high pH soil? It's crazy to say you can't do that.
03-388 +++$+++ 6218 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, to answer your question in several ways, that's a jury determination to -- to ascertain the reasonableness of the alternate design that the manufacturer would be asked to -- to do or to market a separate product that was separately designed for high-acid soils.
03-388 +++$+++ 6219 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it's never a question of the reasonableness or the adequacy of the warning?
03-388 +++$+++ 6220 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think it's a question of warning in this sense, Justice Kennedy. If you take their theory, which is that a defective design claim always collapses to a failure to warn, they can put out a defectively designed product that admittedly causes harm, and all they have to do is change the label and say, if used in these particular circumstances, it may cause harm, because that would necessitate a change to the label --
03-388 +++$+++ 6221 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, not necessarily. It wouldn't be always either way. I would think that if in fact you have a product and the product causes harm in a subset of cases, which you could warn against, then a jury could decide whether the unreasonableness consists of not having designed the super-safe product or the unreasonableness consists of not having had a different label.
03-388 +++$+++ 6222 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that -- there are -- that's why the restatement makes clear that there are distinctive theories for defect --
03-388 +++$+++ 6223 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you're arguing that in this case you have the first.
03-388 +++$+++ 6224 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
03-388 +++$+++ 6225 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It seems implausible on -- you know, --
03-388 +++$+++ 6226 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we have both actually.
03-388 +++$+++ 6227 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- because all they'd have to do is don't use it in pH soil.
03-388 +++$+++ 6228 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. We have defective warning too, and -- and if I can address that as well. The statute here prohibits in section 136q(1) any false or misleading statement in the label as to any particular. Our position is that the 2000 label said, suitable for peanut-growing areas in all places where peanuts are grown. That was false. Under the statute, that is a misbranding, and that is actionable as -- both as a failure to warn, as a fraud claim, and as a breach of warranty. Now, the Medtronic majority made absolutely clear that that kind of claim is not preempted, and in fact all nine Justices agreed that when the State law claim is parallel to the Federal requirements, the existence of a State law remedy is not an additional requirement.
03-388 +++$+++ 6229 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So on -- on that aspect of the case, you put in your pleadings that this was a violation of FIFRA.
03-388 +++$+++ 6230 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't necessarily need to say a violation of FIFRA is -- so long as the requirement is the same, although we can certainly --
03-388 +++$+++ 6231 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's a -- that's a bit different. You were -- you were asserting a moment ago I thought -- please correct me if I'm wrong -- that this was a violation of FIFRA because it was misbranded.
03-388 +++$+++ 6232 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
03-388 +++$+++ 6233 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It seems to me that you then have a suit under FIFRA, but I don't think that was the theory of your complaint.
03-388 +++$+++ 6234 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The theory of our complaint was a failure to warn both for negligence and as a defective product.
03-388 +++$+++ 6235 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the reason for that, I take it, is that FIFRA does not -- I mean, I think you agree FIFRA does not provide an independent private right of action.
03-388 +++$+++ 6236 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
03-388 +++$+++ 6237 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you've got to sue under State law, but you would -- you would kind of have a slam dunk for your position, I suppose, if your pleading said, the failure to warn only to the extent that in fact the -- the warning given in compliance with FIFRA was an inadequate warning. That would -- that would keep you within the -- the -- in effect, the -- the Federal limit, and it would also make clear that you had a State law cause of action, not a Federal cause of action.
03-388 +++$+++ 6238 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, and because --
03-388 +++$+++ 6239 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and that's in effect what you're arguing.
03-388 +++$+++ 6240 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. And -- and because of the preliminary of this suit, Justice Kennedy, we certainly should have the opportunity to amend our complaint. There are counterclaims that this is done at the motion for declaratory judgment.
03-388 +++$+++ 6241 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In your view -- in your -- your opinion, if you were to follow that, would EPA -- suppose EPA does the following. EPA looks into this and they publish a reg that says in this case or in this subset of cases, or some kind of description that fits yours, we think that the labeling should be thus and so and we think that State tort suits will interfere with our ability to promote the uniform labeling and therefore they're preempted. Can the EPA do that on your theory?
03-388 +++$+++ 6242 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it can and the -- the interesting aspect of this, Justice Breyer, is that of course EPA hasn't done that. EPA has made very clear it never tested for efficacy. It never even gave notice and comment so that --
03-388 +++$+++ 6243 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, EPA has -- has waived efficacy data requirements. Right?
03-388 +++$+++ 6244 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-388 +++$+++ 6245 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, is it your position that a State can pass a law requiring labels to have efficacy claims?
03-388 +++$+++ 6246 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They have to do it pursuant to their powers under 136v(a) which is the regulation of sale or use or under 136v(c) which says that when a State designates a particular locality requirement and a special need, it can impose a label -- it can impose requirements that the manufacturer has to comply with. Now, the EPA importantly -- and this is in their regulations at 163.152 -- has specifically said that States have labeling authority. The States can impose labeling requirements. Now, there's no reason why --
03-388 +++$+++ 6247 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you're not relying on that in this cause of action.
03-388 +++$+++ 6248 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice -- no, Justice O'Connor, except to the extent that if the State can affirmatively do it through a positive regulation, their theory has to be wrong that the -- that any incidental effect that induces a change to label is preempted. That theory has to be wrong, and that's what the Fifth Circuit relied on.
03-388 +++$+++ 6249 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, does -- does FIFRA require the manufacturer to say on the label what the item can be used for?
03-388 +++$+++ 6250 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but I want to address --
03-388 +++$+++ 6251 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So how -- how does an express warranty claim escape preemption --
03-388 +++$+++ 6252 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As the --
03-388 +++$+++ 6253 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- where -- where Dow just says the federally mandated statement is included on my label and it's true?
03-388 +++$+++ 6254 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ A warranty claim, Justice O'Connor, as this Court made clear in the Cipollone case, is not a requirement under State law because it's a voluntary contractual arrangement between the parties. The Court I think has made clear that what has to be ascertained here is does the State cause of action or the State law create a requirement. That's not true in the warranty case because FIFRA doesn't speak to requirements in -- as to warranties. It speaks to requirements in other ways. So what Dow did here with its warranty was completely voluntary, and the fact that it breached that warranty by putting on the market a product that was not suitable for the use in all areas where peanuts are grown is a breach of a warranty that it voluntarily undertook. Breach of that is not a requirement imposed under State law. And that has been, I think, verified by seven Justices of this Court in the -- in the Cipollone case. Now, if I could speak to the fraud claim, it is important to understand that in both Cipollone and in a footnote in Medtronic, the Court made clear that where there are general legal duties that are not observed by the manufacturer that don't go to the specific product itself, those claims are not preempted. Here our assertion is that Dow put on the market a -- a product that was mislabeled and that they went out and told people fraudulently was suitable for their uses. We acted in reliance on that and we suffered damages. Those are general legal duties, not pesticide-specific ones. And the existence of the preemption clause of 136v(b) does not displace us from the opportunity to try to prove to a court that fraud was committed here. Now, if I could briefly address two points. One is that the inducement to change theory should be rejected. That was the basis on which the Fifth Circuit decided this case and it is an overly broad theory for several reasons. First, it's not supported by the text of 136v(b) which says requirements for labeling. It doesn't say requirements that induce a change to the label. And that's how many of the courts have gone off track since the Cipollone decision was announced by this Court. They have read FIFRA as saying just because the word requirements is 136v(b), thereby any State law claim that imposes a requirement that might induce a manufacturer to change the label is thereby preempted. We think that's overly broad because it confers way too much discretion on manufacturers to decide what to put on labels, and they can claim immunity for any overly broad claim of efficacy so long as when they are sued, they can say we're induced to change the label. Because EPA does not evaluate the specific contents with respect to efficacy or the claims that are made on -- on a label, if a manufacturer makes an overly ambitious statement as to efficacy, all the manufacturer has to do under the inducement to change theory is go to court and say we would have to change the label and thereby 136v(b) preempts it. Now, I'd also like to stress that the other side's theory creates a huge regulatory gap. As your question, Justice O'Connor, noted, the EPA does not evaluate efficacy on the front end. And in fact, the history behind these provisions is that EPA understood from the very beginning that common law claims would serve an important incidental regulatory effect. If we could review the history for a moment. Prior to the 1972 changes to FIFRA, for decades farmers had brought claims against manufacturers for design defect, for failure to warn, for the kinds of common law claims that we have asserted in this case. It was so well established by 1972 that there was a huge section in the American Law Reports that annotated all the cases and explained what the common law duties of pesticide manufacturers were. Yet, notwithstanding that, when Congress enacted the 1972 act, despite thousands of pages of hearings, committee reports, legislative debates, there is not one mention of any effort to displace those preexisting common law claims. And when EPA, in discharging its responsibilities under the 1972 act, got overwhelmed by the requirement that it re-register products that were already out on the market, pursuant to the 1972 act's standards, it very promptly went to Congress and said, you should waive efficacy requirements because we simply can't do this. Congress responded, but importantly in the administrations on both sides, EPA has always understood except until just a couple of years ago when the Solicitor General changed the position of the Government, that these kinds of incidental common law suits would have an important regulatory effect. If we could just take the case of DDT. For 30 years, manufacturers were sued for DDT and awarded damages until it became clear that the groundswell over the course of decades that DDT needed to be banned, and it was only at the back end that the expert agency regulators determined that in fact the product needed to be banned, but that was only after a very long history in which common law suits had provided remedies to farmers and others who were harmed by that product. Now, in 1982, the Reagan administration's EPA expanded the efficacy waiver and it included far greater products than had been done in the Carter administration in 1979. And in the Federal Register notice announcing that it was intending to expand that efficacy waiver, the EPA in 1982 said the reason why we think this can be done is because suits can be brought against manufacturers who put on the market ineffective products. We cited that on page 31 of our brief.
03-388 +++$+++ 6255 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But do you take the position that juries can do what a State regulation cannot do, or are they much -- are they on a par?
03-388 +++$+++ 6256 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, our broadest theory, Justice Kennedy, is that the word requirements in 136v(b) doesn't include common law claims at all.
03-388 +++$+++ 6257 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose we disagree with that.
03-388 +++$+++ 6258 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If you disagree with that, then they would have to be the same, and that's why our point about the existence of the parallel requirements is the same. I want to address the point of the discordance between what State juries can decide and what State regulators can decide because Dow and the Government have featured that in their case. The Government in the Medtronic case at page 27 of its amicus brief there said there was no problem to be had with juries rendering supposedly inconsistent decisions so long as they were following one Federal standard. The Federal standard here is clear: falsity. Tell the truth. That's what manufacturers are obliged to do under the statute and under the regulations.
03-388 +++$+++ 6259 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's their strong point. So what is the response to that? Because you can easily get two juries in different parts of the country to decide absolutely opposite things as to what the label should say, and in those circumstances, they say, well, they're in an impossible situation and that's why Congress passed this statute, to be sure it would be EPA and not two juries in different places.
03-388 +++$+++ 6260 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ First, the juries -- unlike a -- a declaratory judgment or an injunctive type remedy, Justice Breyer, a jury for a common law damages claim is not saying what affirmatively should be on the labels.
03-388 +++$+++ 6261 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm speaking practically. And I don't have to go into all the argument.
03-388 +++$+++ 6262 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure.
03-388 +++$+++ 6263 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You know the argument. It's a very familiar argument.
03-388 +++$+++ 6264 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure. The answer is that -- that Congress was prepared to accept a certain level of disuniformity when it enacted 136v because it made very clear in sandwiching the preemption provision of 136b -- surround -- by (a) and (c) that it was prepared to allow States to depart in significant respects from what was nationally uniform. And the way it did so was to say States can regulate sale or use and they can also impose extra requirements for special locations. Now, what Dow did here I think illustrates the way the system is supposed to work, which is that when a problem was identified with their product in the States of Texas, Oklahoma, and New Mexico, within 7 months it petitioned the EPA to append to its national uniform label a supplemental label. And that supplemental label says it is for distribution in those three States only and it provided 10 important changes to the label that it otherwise had as a nationally uniform label. That's how the system is supposed to work. If the incidental regulatory effect of jury verdicts or common law claims induces or causes some kind of change to the label, that can be done without an adverse effect to national uniformity through the supplemental labeling process. And what Dow did here was it has its label and then it attaches the supplemental label that addresses the particular conditions that exist in the State. And the EPA has recognized that as a perfectly appropriate and valid way to address the geographic, environmental, and climatic conditions that exist in the different regions of the country that engage in agriculture. There's nothing that is uncertain about that if you accept the premise of the Government's argument in Medtronic, which is that juries can be properly instructed, if it came to that, so that they could follow the appropriate Federal standard. Now, I would like to turn -- sorry. Did you -- no, go ahead. I would like to turn briefly to the -- the requirements aspect of the case because we do think that, under our broadest theory, this is a different situation than Medtronic and Cipollone, and because of the important statutory indications that are in the provision 136v. Unlike in Medtronic, there is an explicit provision that is a non-preempted provision, and that is different from Medtronic. Where in Medtronic there was a provision that allowed the FDA to impose its own decisions as to requirements and whether or not the States should be displaced, here Congress made the determination in 136v(a) and in (c) that those kinds of requirements can be imposed. They're in addition to what the Federal standard is. That means that you have to look at requirements in a somewhat different way because the States have this authority that they did not have under the Medical Device Amendments. There's a textual indicator under (b) also which refers to (a) in the sense that (b) says such State that shall issue these requirements. Such -- the meaning of it in Webster's means what has been already described -- is in (a), and in (a) the States are authorized to promulgate regulations. So we think that there is a textual basis for distinguishing the word requirements that this Court -- five Justices in this Court in Medtronic said would encompass common law claims. If there are no further questions at this time, I'd like to reserve the balance --
03-388 +++$+++ 6265 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let me ask one because I think you'll hear some variation of this, and you have a minute, which is the -- the statute sets up a perfectly good way of keeping this branded stuff off the market. All any complaining farmer has to do is to go to EPA and ask them to pull it, and pulling it is an unbelievable sanction. It's like the atomic bomb on the company. And so that's very strong. And the only thing that leaves out is the possibility of damage remedies, but if you want your damage remedy, just go to EPA and tell them to give it to you because they can write the rule the other way that I was suggesting.
03-388 +++$+++ 6266 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think that EPA could write a rule requiring damages to be done. It doesn't have the statutory authority --
03-388 +++$+++ 6267 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They would just say it doesn't preempt.
03-388 +++$+++ 6268 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there's no indication here that EPA can do that kind of thing. In FIFRA, it certainly doesn't have that kind of provision. I mean, certainly there are different ways that the statute could have been written. That isn't the choice that Congress made. Thank you.
03-388 +++$+++ 6269 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Waxman.
03-388 +++$+++ 6271 +++$+++ FALSE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: FIFRA's preemption provision, which Congress specifically amended in 1978 to add the title uniformity, preempts by its terms, quote, requirements for labeling different from those required under FIFRA.
03-388 +++$+++ 6272 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why -- why doesn't the other amendment limit your argument? Because Congress has also passed an amendment to the effect that unless EPA chooses to get in to the business of -- of passing on efficacy, it -- it need not do so. And in fact we know it is not doing so. Why, therefore, doesn't the uniformity argument go to those subjects that EPA does review for and why doesn't the subject of efficacy, in effect, drop out of -- of the -- the whole preemption claim?
03-388 +++$+++ 6273 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are -- there are two fundamental reasons. The first is that it is a principal requirement of FIFRA, and has been since 1972 and remains, that a manufacturer may only sell a registered pesticide with the precise labeling to the word and font size that EPA has approved, and that requirement applies whether the wording relates to human safety, environmental protection, or efficacy. Now, the specific amendment in 1978 was, as Mr. Frederick indicated, represented a representation by EPA to Congress -- and Congress' -- the -- the committee report plainly indicates this -- that the EPA was not saying we are no longer regulating efficacy, we are no longer concerned with efficacy. What they said was because the Department of Agriculture and the extension services and the State universities are all involved in this and, in particular, are involved in the statutory requirement that before a manufacturer can even apply for registration, even submit a registration application, the manufacturer must do extensive, rigorous efficacy testing, which Congress has indicated correctly is very expensive --
03-388 +++$+++ 6274 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's not monitored at all. The -- the manufacturer can say -- make up reports and EPA is never going to look at it.
03-388 +++$+++ 6275 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the manufacturer makes up reports, it has committed a felony. EPA can enforce it. It can refer it to the Attorney General. It's just like the --
03-388 +++$+++ 6276 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But maybe it isn't a labeling violation. I mean, there are claims made here that I have trouble shoehorning into your theory. For instance, why does a claim that Dow negligently failed to field test its product on peanuts on acid soil impose a label requirement?
03-388 +++$+++ 6277 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice --
03-388 +++$+++ 6278 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I just don't understand that.
03-388 +++$+++ 6279 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice O'Connor, I think -- I will address the negligent testing and, of course, the design defect --
03-388 +++$+++ 6280 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
03-388 +++$+++ 6281 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- discussion that's figured so prominently in my colleague's argument. It's very, very important to understand that unlike in Sprietsma and Medtronic and so many of the -- and, for that matter, with respect to the preempted claims in Cipollone, the claims that were preempted below, we didn't file a rule 12 motion to dismiss. We couldn't have with respect to at least one of those two claims. We filed a motion for summary judgment that said with respect to -- let me take design defect first. With respect to design defect, it is possible under Texas State law to state a claim for products liability under defective design without impeaching the labeling. And there is a brief filed in this case by Dean Powers, the University of Texas Law School, for the -- the Texas Chemistry Council who's an expert on Texas tort law, and he goes through the Texas torts in detail to show why they are all preempted and all invalid under independent and adequate State grounds. But what we did is we didn't move to dismiss. We filed a motion for summary judgment, and in that motion for summary judgment, we pointed the respondents in this case to this Court's decision in Celotex v. Catrett, and we said, in effect, we know that you can allege a design defect claim without impeaching the labeling, but we think that what you are complaining about does impeach the labeling. Therefore, show us what you have. Now, under rule 56, they had two alternatives. They could have filed an affidavit or a request under rule 56(f), as this Court referenced in Anderson v. Liberty Lobby, and said, hey, we don't know how this was made. We don't know how this was tested. We don't know how this was manufactured. We're entitled to discovery, and district courts recognize that all the time. What they did --
03-388 +++$+++ 6282 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And they didn't do that?
03-388 +++$+++ 6283 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They did not do that, and what they did was to submit affidavits and documentary evidence, including expert affidavits.
03-388 +++$+++ 6284 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. -- Mr. Waxman, you said they didn't file a motion to dismiss. I thought you brought the lawsuit.
03-388 +++$+++ 6285 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We brought the lawsuit and we --
03-388 +++$+++ 6286 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But then they couldn't file --
03-388 +++$+++ 6287 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no, no. I said we didn't file a motion to dismiss --
03-388 +++$+++ 6288 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You didn't file a motion to dismiss your own complaint?
03-388 +++$+++ 6289 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no. Their counterclaims.
03-388 +++$+++ 6290 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, okay.
03-388 +++$+++ 6291 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In other words, this wasn't decided -- Mr. Frederick's reply brief talks over and over and over again about how this was decided on the pleadings, and you know, there was no discovery allowed. Under rule 56, they could have asked for discovery when we basically said, okay, let's show our hands. We got two jacks. What do you got? And what their expert said and what their response said was if the 2001 amended label had been on it, we wouldn't have been injured. Now, rule 56(c) says that when you oppose a summary judgment motion with affidavit evidence, the burden is on the adverse -- the adverse party must by affidavits, or otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial, and they didn't do that. Now, the classic design defect -- let me -- let me give you an example.
03-388 +++$+++ 6292 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let's just try to boil it down a little bit for my purposes. Do you concede that there could be a claim based on no testing --
03-388 +++$+++ 6293 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-388 +++$+++ 6294 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that there could be a claim based on design defect, that there could be a claim saying there were off-label oral statements made that amounted to fraud or misleading --
03-388 +++$+++ 6295 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'll take them in your precise order.
03-388 +++$+++ 6296 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
03-388 +++$+++ 6297 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under Texas law -- and the Court of Appeals opinion, the Grinnell opinion cited by the Court of Appeals opinion, says this, as does Dean Powers. Under Texas law, negligent testing is not an independent tort. It is of necessity a subset of inadequate warnings. It is an element of a -- the tort -- the claim of product defect related to warnings. And so it is not possible under Texas law, settled Texas law. Other States are different, but Texas in its sovereign capacity has chosen to make claims of negligent testing an element of the tort of defective product by failure to warn, and that --
03-388 +++$+++ 6298 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the way you proceeded in this case, you made it clear that it would be impossible for the Texas court itself to weigh in on this because you jumped the gun. They wanted to proceed in Texas court, and then we would have known what Texas law was on these subjects. You said, no, we want to be in the Federal forum.
03-388 +++$+++ 6299 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We want -- as the -- as the Fifth Circuit found and the District Court found, we filed a declaratory judgment in Texas after we received their demand letters because we wanted this to be adjudicated in a single forum, which the Texas venue rules would not have allowed, and we -- we actually filed this in Lubbock, Texas, which is the geographic center of where these 29 farmers operate. Now, with respect to defective design, yes, under Texas law if they had a -- they have to allege and they have to prove that there is a safer alternative design for this product, which they never even introduced one quantum of evidence about. But --
03-388 +++$+++ 6300 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems to me you're -- you're arguing the merits of the tort claims rather than the preemption issue.
03-388 +++$+++ 6301 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, what we said was your claims are preempted if they impeach the labeling that we are required by Federal law to use.
03-388 +++$+++ 6302 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they now say they don't. They ought to be able to proceed on those claims. What do we do with that?
03-388 +++$+++ 6303 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, what this -- what -- what happens under rule 56 --
03-388 +++$+++ 6304 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And also the -- also the claims of false, misleading statements outside the label.
03-388 +++$+++ 6305 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I'm going to get to the false and misleading statements outside the labeling in a minute, but just to finish the design defect point, they filed a complaint -- a counterclaim which had as a count this was defectively designed. It is possible under Texas law to prove that something is defectively designed. If they had come in and said, but we filed a motion for summary judgment that says here's our evidence and we don't think that you can satisfy -- that you are, in fact, complaining about a defective design --
03-388 +++$+++ 6306 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if they did allege a defective design claim under Texas law, would that have been preempted?
03-388 +++$+++ 6307 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. If -- if they had said, look, the problem with this, which as footnote 9 of our brief indicates, it's not a --
03-388 +++$+++ 6308 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems to me your argument is not whether there's preemption. It's whether there's a State cause of -- State law cause of action.
03-388 +++$+++ 6309 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no, no. It's -- it's both. With respect to defective design, what we said is, your claim is preempted because you aren't going to go to the jury on defective design without impeaching the label. If we're wrong, prove it in response to our summary judgment submission.
03-388 +++$+++ 6310 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you can --
03-388 +++$+++ 6311 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that their burden?
03-388 +++$+++ 6312 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is --
03-388 +++$+++ 6313 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that their burden or is your burden to show --
03-388 +++$+++ 6314 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is -- it is absolutely their burden in -- as the responding party to a motion for summary judgment, to show that there are material facts that are either in dispute or there are material facts that would allow them to go to the jury.
03-388 +++$+++ 6315 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But on your theory there is no material fact, it seems to me, because your -- what you say they cannot make good on that claim without impeaching the label.
03-388 +++$+++ 6316 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And they --
03-388 +++$+++ 6317 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Every time they sue on the -- on the ground that -- let's say, that -- that the -- the actual use was inconsistent with what the label described, you could say, gee, if their theory is correct, we'd have to change our label to say that what's on the label now is in fact not properly descriptive of the product. So it's not a -- a question of needing more fact. On your theory, whenever they, in effect, sue on the basis of what you say, your response is going to be, as a matter of law, well, if they're correct, we'd have to say something else. That impeaches the label. Therefore, preemption.
03-388 +++$+++ 6318 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is exactly right. What they could have done in response to our motion for summary judgment is to say this product assertedly harms -- when it is applied before the seed is planted, will harm the product it is -- the plant that it's supposed to protect if the soil pH is too high. They could have easily have come back and said if they had a -- a design defect claim that didn't impeach the label to say you should have -- there was a way to manufacture this product. You could have it in pellet form rather than in the soluble form or if the problem was the alkalinity of the soil, there is a way to design this so that it is dissolved in a more acidic solution. The classic case, which is referenced in the NRDC brief, which has many, many examples of true design defect claims that don't impeach labels, is a case involving rat poison. It's a case called Banks v. ICI America. It's a Georgia Supreme Court --
03-388 +++$+++ 6319 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you quite clearly have both. I understand that. Let me ask you a question about the -- the preemption point because what I think they're saying is go read the red brief, your brief, pages 6 and 7, and there you see a statutory requirement and you see regulatory requirements, regulation. And I think one of their claims is we are arguing that that statutory requirement, without any change in the regulatory, that -- that it was violated. These are false. They're misbranded. So we are not imposing a requirement different from or in addition to the requirement of Federal law. We are enforcing a requirement that is the same as the requirement of Federal law, and if, by the way, the EPA were to think that tort suits in those circumstances in practice are too disuniform, let them promulgate a regulation to that effect. But they haven't. Now, what -- what is the answer to that argument?
03-388 +++$+++ 6320 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The answer is threefold. Number one, a challenge to a -- the wording of a statement on the label on the grounds that it is false and misleading is -- does impose a requirement different than Federal law, not the requirement that -- that labeling not be false and misleading, but the fundamental requirement that a -- unless and until the EPA says otherwise, the manufacturer can only sell this product with the precise labeling that EPA has approved. And it -- if you look at page 63a --
03-388 +++$+++ 6321 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Waxman, do I --
03-388 +++$+++ 6322 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of the joint appendix --
03-388 +++$+++ 6323 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Waxman, do I take it from what you have just said that there is no -- even though the statute prohibits misbranding, that there is no way that that can be privately enforced, that misbranding is something strictly for EPA to deal with, that the statute has a prohibition on misbranding? I can see the argument that all we're doing is enforcing the provision that says no misbranding. So is EPA the only the player in the misbranding --
03-388 +++$+++ 6324 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Insofar as labeling is concerned, the answer is yes, and that's because the statute -- the statute has many, many instances in which it makes it clear that in service of the objective of a nationally uniform label, the expert agency that approves and dictates the language of that label be the one to decide what is or isn't --
03-388 +++$+++ 6325 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Waxman --
03-388 +++$+++ 6326 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where does it say that?
03-388 +++$+++ 6327 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- can I ask you one question here?
03-388 +++$+++ 6328 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because you were just going to point out where it says that --
03-388 +++$+++ 6329 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It goes to your --
03-388 +++$+++ 6330 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- which I think is --
03-388 +++$+++ 6331 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Excuse me.
03-388 +++$+++ 6332 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm sorry.
03-388 +++$+++ 6333 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Just let me ask this one question. Supposing the label says, this product contains vitamin A. Period. And it doesn't contain vitamin A, and they prove that in court. And you say you would have to change the label. I suggest you could change the product by putting vitamin A in it.
03-388 +++$+++ 6334 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you can -- you're --
03-388 +++$+++ 6335 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why isn't that an answer to the misbranding? You change the product not necessarily the label.
03-388 +++$+++ 6336 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the difference between a -- that would be a -- a manufacturing defect, which are cases that have been decided --
03-388 +++$+++ 6337 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It would be a false statement in the label. The label happened to be false, a misrepresentation in it.
03-388 +++$+++ 6338 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If -- if the -- if it contains -- I'm sorry. Was it vitamin A? If it contains vitamin A because that's what the manufacturer intended and that's what the manufacturer produced --
03-388 +++$+++ 6339 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. The manufacturer knew it didn't contain it. He falsely put that in the statement --
03-388 +++$+++ 6340 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, I see. Said that --
03-388 +++$+++ 6341 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and -- and it's -- it's a misbranded, false statement. Now, does he have to change the label or could he change the product?
03-388 +++$+++ 6342 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I believe that you have -- you would have to -- I mean, would it be efficacious with vitamin A? I don't know, but if it -- if it requires a change in the label, it has to be done by EPA because the manufacturer commits a Federal law violation if it sells the product with any different label. If you -- if I can just direct the Court's attention to --
03-388 +++$+++ 6343 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but I'm suggesting he could sell the product with the same label if he just changed the product to correct the misstatement.
03-388 +++$+++ 6344 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the test, as the Fifth Circuit stated, Justice Stevens, is whether a judgment against Dow -- I'm quoting. Quote: whether a judgment against Dow would cause it to need to alter the Strongarm label. I'm -- and that's the -- those are -- that's the test that was applied here and is always applied.
03-388 +++$+++ 6345 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay, but why --
03-388 +++$+++ 6346 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is, does the State law cause of action -- is it premised on a State law duty that there -- that different labeling be used --
03-388 +++$+++ 6347 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but neither --
03-388 +++$+++ 6348 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that is, a little bit different than what Federal law requires.
03-388 +++$+++ 6349 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The problem that I think some of -- several of us are having is that both the -- as I understand it, the Fifth Circuit test in your argument draws no distinction between the two following kinds of situations. Situation A: there's something that the manufacturer should have told you, should have put on the label, but the manufacturer didn't. Situation B: the manufacturer puts something on the label which in fact is wrong and in Justice Stevens' example is in fact false and it causes harm. It makes sense, it seems to me, for preemption purposes to say if the person who sues sues simply on the ground that I bought it in reliance on the label, the label was false, I should get damages for -- for whatever harm was caused, that situation should be dealt with for preemption purposes differently from the situation in which the -- the manufacturer made no false statement. He simply should have said more. And if -- if you don't distinguish between those two situations, then the -- the prohibition against mislabeling means absolutely nothing because -- because it can never be enforced, in effect, except with respect to some prospective user. It can never be enforced with respect to the actual user.
03-388 +++$+++ 6350 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, that is a choice that Congress could have made. It is plainly not a choice that Congress did make because it applied the preemption provision to requirements that are either in addition to or different than. And whether a label is assertedly misleading because it fails to include something on the EPA-approved label or --
03-388 +++$+++ 6351 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Requirements for labeling or packaging --
03-388 +++$+++ 6352 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-388 +++$+++ 6353 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- that are in addition to or different.
03-388 +++$+++ 6354 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I -- I --
03-388 +++$+++ 6355 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Requirements for labeling or packaging.
03-388 +++$+++ 6356 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, and -- and if it -- if the --
03-388 +++$+++ 6357 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, and the argument that's being made is that we ought to -- we ought to read -- we ought to read the limitation, which Justice Scalia has just described, with respect to labeling and packaging, in a relatively narrow way to allow the suit to go forward and, therefore, we ought to make a distinction between the two kinds of situations.
03-388 +++$+++ 6358 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The allegation in this suit -- the claims in this suit -- and I -- I see that my time has expired.
03-388 +++$+++ 6359 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Blatt.
03-388 +++$+++ 6361 +++$+++ FALSE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Stevens, and may it please the Court: It would entirely destroy the uniformity contemplated by -- contemplated by the statute if the EPA-approved and mandated label were subject to jury-by-jury invalidation based on a jury's determination of whether a label is false.
03-388 +++$+++ 6362 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ This is a new position for the Government, isn't it?
03-388 +++$+++ 6363 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, we have --
03-388 +++$+++ 6364 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You used to take the opposite position.
03-388 +++$+++ 6365 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
03-388 +++$+++ 6366 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And we're dealing here, as -- nobody has mentioned it, but there -- there's a clear statement rule for preemption, isn't there? Doesn't the preemption of -- of traditional State powers have to be clear in the statute?
03-388 +++$+++ 6367 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We -- we think subsection (b) is unambiguous in preempting any statement.
03-388 +++$+++ 6368 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's -- it's ambiguous enough that the Government -- the -- the chief beneficiary of the -- of the supposed preemption didn't see it. It used to come out the other way. How can you possibly say it's clear?
03-388 +++$+++ 6369 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the agency is allowed to change its position and we realize --
03-388 +++$+++ 6370 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I understand. It's -- it's welcome to change it, but it -- it's one thing to change it. It's another thing to change it and come in to say that the question is clear.
03-388 +++$+++ 6371 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we think that -- we realize that our position was inconsistent with not only the Court's decision in Cipollone and in Medtronic that recognizes that requirement extends to common law duties. But more importantly, a system where a jury-by-jury on the same facts could come up with completely different reasons why a label is false --
03-388 +++$+++ 6372 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So -- so if you have one administration thinking the one thing and the other thinking the other thing, why isn't the answer that the agency can promulgate the reg it wants? And therefore if the reg -- if the agency comes to that conclusion, let them promulgate that reg. And if a different one thinks it can work with the tort suits, let them promulgate that reg.
03-388 +++$+++ 6373 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, unlike Medtronic where preemption occurred by virtue of the FDA's regulation, under FIFRA there's preemption by virtue of the statute itself. And I just want to give one --
03-388 +++$+++ 6374 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but why isn't there a big difference, for purposes of your argument, between the Medtronic situation and this one for the simple reason in this case you've got a statute that authorizes EPA to do absolutely nothing on the subject of efficacy? And EPA does nothing on the subject of efficacy.
03-388 +++$+++ 6375 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's just not true, with all due respect. I mean, they -- the -- we don't verify the accuracy of the efficacy labeling, but the requirement, both in the preemption provision and in the requirement to use the EPA label, clearly extends to efficacy. And you can have disuniform context whether it's safety or efficacy. Imagine a label that directs a product to be mixed for 20 minutes. One jury could find the label was false because the product should have only been mixed for 10 minutes. Another jury in the same courthouse could find the label was false because the product should have been mixed for at least 30 minutes. And this case is another really good example. Now the petitioners are saying the label says that the soil only should be a 7.2 level. Their expert says --
03-388 +++$+++ 6376 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but the remedy to that would not necessarily be to change the label. It might be to change the quality of the product that requires how much time for mixing.
03-388 +++$+++ 6377 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And we think it's critical that our position is that this statute only operates in the area of labeling, and it preempts only those State labeling requirements --
03-388 +++$+++ 6378 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you say about my vitamin A example?
03-388 +++$+++ 6379 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think your vitamin A example is an excellent example of a non-preempted claim. If a manufacturer says that this is a pesticide and he puts Clorox in the bottle, the plaintiff wants to get to the jury on the theory that a reasonable manufacturer would not have used Clorox. He would have used the pesticide. If the argument, on the other hand, is Clorox was fine. I don't have a problem with Clorox, I just wish I would have been given a warning, but that's not the way a plaintiff would frame his complaint. We think it's critical that our theory is if the plaintiff's theory of recovery is necessarily -- necessarily predicated on a requirement that the manufacturer used a label different than the EPA-approved label the Federal law required it use --
03-388 +++$+++ 6380 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let's -- let's be specific here. If it's a failure to test, if it's a -- a design defect requirement, if it's an off-labeled, false misrepresentation, why are they preempted?
03-388 +++$+++ 6381 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ On the face of the complaint, we agree that they're not preempted. Our only position is by the time it got to summary judgment, the courts decided that they had no evidence on what would have been non-preempted claims. If another farmer wants to bring an expert that says Strongarm can be manufactured --
03-388 +++$+++ 6382 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But then do you endorse the theory of the Court of Appeals in this case?
03-388 +++$+++ 6383 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we think the Court of Appeals took it claim by claim and read the affidavit -- or at least the District Court did --
03-388 +++$+++ 6384 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you think just mere inducement to change a label is sufficient to create preemption.
03-388 +++$+++ 6385 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mere inducement only to the extent that that's a shorthand way of saying the label was -- necessarily had to be required. Let me give you an example.
03-388 +++$+++ 6386 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If Congress wanted that, surely it could have stated it more clearly than simply saying the State shall not impose or continue in effect any requirements for labeling or packaging. A tort suit because of -- of mislabeling is not a requirement for labeling or packaging.
03-388 +++$+++ 6387 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the --
03-388 +++$+++ 6388 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And if Congress wanted to say that, they could have said it.
03-388 +++$+++ 6389 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think they did say if a common law duty is necessarily premised on the requirement that the manufacturer used a different label than Federal law required him to use. In this case, the common law duty of a failure to warn is saying the manufacturer should have put something on --
03-388 +++$+++ 6390 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You have -- you have that provision which talks about requirements for labeling or packaging in conjunction with another provision that authorizes the State to regulate the sale or use.
03-388 +++$+++ 6391 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The --
03-388 +++$+++ 6392 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I mean, you -- you have to make sense of the two.
03-388 +++$+++ 6393 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, and that's --
03-388 +++$+++ 6394 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And it seems to me that means the State can impose certain requirements upon the seller to the consumer --
03-388 +++$+++ 6395 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not on labeling. Justice Scalia, every day --
03-388 +++$+++ 6396 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, every change -- virtually every change -- virtually everyone -- if -- if you believe the respondent's theory, virtually any State regulation of the substance of the sale will require a change in the label.
03-388 +++$+++ 6397 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's just not true. Every day States and localities around the country are imposing use restrictions. They tell -- they tell applicators and users when and where to apply the pesticide and what types of --
03-388 +++$+++ 6398 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Sale -- sale or use is what it says.
03-388 +++$+++ 6399 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right and they --
03-388 +++$+++ 6400 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Say -- if they regulate the sale or use.
03-388 +++$+++ 6401 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, and they do that every day without imposing labeling requirements. Imagine -- imagine --
03-388 +++$+++ 6402 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Give me sale examples.
03-388 +++$+++ 6403 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They require the manufacturer, in order to sell the product, be registered with the State, and they can impose whatever sale restrictions they want --
03-388 +++$+++ 6404 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And can they --
03-388 +++$+++ 6405 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that don't go to the labeling.
03-388 +++$+++ 6406 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can they do the same thing by -- through jury verdicts?
03-388 +++$+++ 6407 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely not. It would be bad enough if a manufacturer had to shop his label around 50 States and had each --
03-388 +++$+++ 6408 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So now -- so now you say a State can do something by regulation that a jury can't do.
03-388 +++$+++ 6409 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. A State absolutely cannot impose labeling restrictions on a manufacturer.
03-388 +++$+++ 6410 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm asking if the -- if juries can do anything that the -- are -- are prohibited under your view from doing anything that the State could do by a State regulation.
03-388 +++$+++ 6411 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. I'm sorry. Right. Under -- it -- the alternative theory would give more power to the jury to impose labeling restrictions than the State, and we don't think the State can do it. And it would be far more pernicious if a label were subject to jury-by-jury invalidation. No one would read the label, much less understand it.
03-388 +++$+++ 6412 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Blatt, there's a brief in this case -- there's a brief in this case that just shows hundreds, if not thousands, of crop damage claims. And your theory is that with this ambiguous provision Congress wiped all that out. It's hard to believe.
03-388 +++$+++ 6413 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Congress just wiped out labeling and only those labeling requirements --
03-388 +++$+++ 6414 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But everything becomes -- but every -- every time -- my crop was stunted. Okay. You have to change the label so you can't bring that suit.
03-388 +++$+++ 6415 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, it's just not true. The lower courts well understand this distinction, and they -- they let go all the time claims as not preempted that are true manufacturing defect or true design defect claims. This is not a complete immunity. This is a narrowly targeted one as to labeling. There is a famous example of the Benlate --
03-388 +++$+++ 6416 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He says their claim is -- is very simple. You didn't tell us that using this in our kind of soil would stunt the crop and wouldn't kill the weeds.
03-388 +++$+++ 6417 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-388 +++$+++ 6418 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you're saying that kind of claim can't be brought anymore.
03-388 +++$+++ 6419 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It can be brought if there's State law and evidence to support the State law that doesn't attack the labeling. And our --
03-388 +++$+++ 6420 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I've described a set of facts which your position I think you have to say affects the label. The -- the farmer says I bought this bottle. It said okay for all peanuts. My crop grew and it was stunted and the weeds stayed alive.
03-388 +++$+++ 6421 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If they found an expert that said if you had manufactured this differently or if you had designed it differently and there was evidence to support that, our view is that those claims aren't preempted. And the alternative to let juries --
03-388 +++$+++ 6422 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. I'm not giving you that case. I'm giving you exactly what happened.
03-388 +++$+++ 6423 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This case -- they didn't have any evidence other than saying that the label was inaccurate. But the next -- another jury could rely on the respondent's evidence to say the label was inaccurate because it works better on high pH soil, and another jury could say, well, we need a margin of safety and the label should have said 6.8 instead of 7.0, which is what their expert says. And you can have this time and time again with how often the pesticide has to be applied, when it has to be applied. And to -- and the -- the whole point of section 136v(b) was to have reliability --
03-388 +++$+++ 6424 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was that happening when EPA took the opposite view? Was there this tremendous disparity with juries going every which way --
03-388 +++$+++ 6425 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there's -- there's been preemption at least since the late '80's, and I don't know of cases where juries -- or the theory for recovery was invalidating the label. There are lots of cases that are true manufacturing defect claims, and I direct your attention to the Benlate where the manufacturer contaminated his product. If I'm the plaintiff, my theory -- the theory was you mismanufactured this product. A reasonable manufacturer would have taken practices to prevent contamination, and it destroyed a lot of crops and EPA actually took enforcement action against that manufacturer. The rat poisoning example -- a 9-year-old kid died of rat poisoning because it tasted like a candy bar. The theory of recovery was all the manufacturer had to do was put a bittering agent in it that would have made the kid throw up and the rats still would have loved the poisoning. That has nothing to do with the label.
03-388 +++$+++ 6426 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Blatt. You have about 4 minutes.
03-388 +++$+++ 6428 +++$+++ FALSE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I just have two points to make. With respect to the summary judgment posture of the case, the way this unfolded was that on one day the District Court decided the motion for jurisdiction, that it had jurisdiction. On the very next day, Dow rushed into court with its motion for summary judgment. And what Mr. Waxman cites as the Celotex invocation merely says that on -- on this point it is neither unfair nor premature to require defendants to produce evidence in support of their claims now as the Celotex trilogy requires. I'm reading from their motion for summary judgment. That was filed before the counterclaims. The only thing that they knew about was the deceptive trade practices notice letter that the farmers had filed pursuant to State law. So they didn't know what our claims were, and they were requiring or saying that the District Court could throw us out of court without giving us any opportunity to file counterclaims, much less try to develop evidence that would prove them. Now, with respect to the disuniformity point, when Congress amended the statute in 1988 to add the word uniformity, it said in that public law that it was a technical amendment. We don't know why Congress put the word uniformity in. The legislative history is barren. It just says this is a technical amendment. It didn't change the substantive provisions that empowered States to impose regulations that would have the effect of disuniformity. Now, at the end of the day, we've got claims that have been brought historically since the late 19th century. Until EPA had a sudden change of heart, there were decades in which juries made these decisions with respect to these kinds of products, and those preemption decisions really didn't take hold until after this Court announced Cipollone in 1992. And it was only at that point that the courts began to have preemption, but for the previous 2 decades, juries routinely decided these kinds of cases. The sky did not fall. EPA didn't come in and say there's labeling disuniformity as a result of this. There simply were no problems. But what did happen was that the farmers who used products were able to get compensation when pesticides damaged their crops. Thank you.
03-388 +++$+++ 6429 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The case is submitted.
03-407 +++$+++ 6433 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in No. 03-407, John F. Kowalski v. John C. Tesmer. Mr. Casey.
03-407 +++$+++ 6435 +++$+++ FALSE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: In this facial challenge to the Michigan statute, court of appeals rulings that these lawyers have third party standing and that their potential clients have a constitutional right to appointed counsel in discretionary appeals are both wrong. First, with respect to the standing argument, in our brief we argue that the respondent attorneys could not meet any of the criteria for standing. This morning I'd like to focus on the element of prudential standing that considers whether there is a hindrance to the ability of a third party to protect his own -- to protect his own interest.
03-407 +++$+++ 6436 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- there is an injury in fact. These lawyers claim that if the State were compensating for this service and they're on the list to be appointed, they would have more money in their pockets. You're not -- you're not challenging that there is an injury in fact.
03-407 +++$+++ 6437 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. In our -- in our brief we have challenged that. The -- the requirement is that there be an injury in fact, a concrete and particularized actual or imminent injury in fact.
03-407 +++$+++ 6438 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you -- you said now you were going on to the prudential factors, and so I asked were you recognizing that there was an injury in fact, and you said no. And -- and why not? Because it seems so obvious that they would get appointments if the system were --
03-407 +++$+++ 6439 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I take it you're reserving it for -- in your -- in your brief.
03-407 +++$+++ 6440 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I am not waiving the argument. I -- I would like to rest on the brief. But I -- in answer to your question, we believe yes, there is a likelihood that these lawyers on the list for appointed counsel will some day -- if they stay on the list and a case comes up in that county, there is a likelihood that there will be a case. We submit, however, that on these facts in this facial challenge, we don't know how many lawyers are on the list for appointments in Saginaw County. We don't know how many appeals of this nature come up. So it may be many years before the situation arises. This is not a concrete and particularized actual or imminent injury in fact, and we've argued that in the brief. At -- at best, if there is an injury in fact and if there is -- another factor is the close relationship to the third party. We believe those are weak at best, and we've argued in our brief that they don't exist. I think it is most clear, however, that the criteria concerning the hindrance to the third party does not exist here. This is a facial challenge bought by -- brought by lawyers before the statute took effect, claiming not that the statute violates their own constitutional rights, but that it violates the rights of potential future clients, and that the lawyers will suffer economic harm.
03-407 +++$+++ 6441 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I clarify something about this case? Are any of the indigent defendants whose rights the respondent attorneys want to advance -- do any of those people themselves have standing to bring their claims in Federal court now?
03-407 +++$+++ 6442 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. We argue that there are -- there are three ways that an indigent defendant can bring this claim themselves without having to rely on an attorney in this type of case. First, they can bring the challenge directly through the State courts.
03-407 +++$+++ 6443 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm asking if there are any individuals now before this Court in this case --
03-407 +++$+++ 6444 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. None of these -- none of these defendants --
03-407 +++$+++ 6445 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- who would be available and who would have remedies or standing to bring their claims. Are we just talking pure hypotheticals here?
03-407 +++$+++ 6446 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this facial challenge, we're talking about pure hypotheticals. The -- the three named indigent defendants --
03-407 +++$+++ 6447 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There were three named indigents.
03-407 +++$+++ 6448 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
03-407 +++$+++ 6449 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They were?
03-407 +++$+++ 6450 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They were denied counsel.
03-407 +++$+++ 6451 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Denied counsel, and they were also dismissed at some point down the line?
03-407 +++$+++ 6452 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The -- the Sixth Circuit held that the Federal court should abstain from deciding their claims because they could have brought their claims in their direct State appeals. They raised claims about the practice of denying counsel before the statute took effect.
03-407 +++$+++ 6453 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Casey, was it a Younger abstention --
03-407 +++$+++ 6454 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-407 +++$+++ 6455 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- with respect to the --
03-407 +++$+++ 6456 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the Sixth Circuit en banc held that under Younger v. Harris, the Federal court should abstain from deciding the claims of the three indigent defendants.
03-407 +++$+++ 6457 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So that means that the defendants could never bring this 1983 suit. Only the lawyers arguably could.
03-407 +++$+++ 6458 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Younger v. Harris is only -- only defers the time when a proper Federal civil rights action can be brought. There were -- at the time this action was brought, there were pending State appeals in two of the cases. One of the defendants never appealed at all. The Sixth Circuit recently issued an opinion not --
03-407 +++$+++ 6459 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why didn't these lawyers instead of -- instead of trying to sue on their own, why didn't they just offer their services to -- to these defendants through the State courts?
03-407 +++$+++ 6460 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, perhaps opposing counsel could answer that better than I. We say that is the --
03-407 +++$+++ 6461 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, that's what I don't understand about -- about the fact that they won't -- won't have the right to counsel. It -- it's at least as easy for -- for counsel to appear in cases in which indigents need counsel as it is for counsel to bring their own lawsuit.
03-407 +++$+++ 6462 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is our point on the standing issue precisely, Your Honor.
03-407 +++$+++ 6463 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Didn't -- didn't the Michigan Supreme Court already rule on this issue and said that the statute was constitutional, that there was no right to counsel, therefore no possibility of appointing counsel, paid counsel?
03-407 +++$+++ 6464 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. In -- in 2000, the -- the -- while this case was pending, the Michigan Supreme Court issued an opinion, the Bulger decision that's discussed in the briefs, saying that the practice of denying appointed counsel was constitutional. The statute was not in effect at that time. The statute took effect, and in a case just decided in June of this year, People v. Harris, the Michigan Supreme Court relied on Bulger and said this statute is constitutional. It does not violate any rights.
03-407 +++$+++ 6465 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So going through the State system, there's no possibility that these lawyers or the defendants could successfully assert a right to paid counsel --
03-407 +++$+++ 6466 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
03-407 +++$+++ 6467 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- because that's already been decided by the Michigan Supreme Court.
03-407 +++$+++ 6468 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As -- as a matter of jurisprudence by the State supreme court, yes. Both State and Federal constitutional --
03-407 +++$+++ 6469 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There -- there's an appeal from -- they could request certiorari from the State supreme court to this Court, I assume.
03-407 +++$+++ 6470 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are, in fact, two cases pending, the Harris case that I just mentioned. A petition for certiorari was filed about 2 weeks ago raising this precise claim. There is another case Halbert v. Michigan. It's docket --
03-407 +++$+++ 6471 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was there -- was there a cert petition in Bulger itself?
03-407 +++$+++ 6472 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There was a petition in Bulger.
03-407 +++$+++ 6473 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And it was denied.
03-407 +++$+++ 6474 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was denied. In -- in addition --
03-407 +++$+++ 6475 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there -- there is a cert petition filed in what case? In the June case?
03-407 +++$+++ 6476 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the -- the case is pending in this Court as Melody Harris v. Michigan. It was filed about 2 weeks ago. I have not been able to find out the docket number. There was another case, Halbert v. Michigan, which is a pro se defendant who was denied counsel. His applications, pro se applications, were denied in the State appellate courts. A pro se petition was filed. I filed a response to that about a month ago. That's docket number 03-10198. It's on this Court's conference for Friday, October 8th.
03-407 +++$+++ 6477 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So your point is that there are petitions filed here that would enable this Court to decide whether the Michigan Supreme Court was correct in holding the statute constitutional.
03-407 +++$+++ 6478 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. There are at least those two petitions pending that I'm aware of in this Court now.
03-407 +++$+++ 6479 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you acknowledge there is a good Federal question there at least?
03-407 +++$+++ 6480 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, yes. It's -- it's an important question.
03-407 +++$+++ 6481 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
03-407 +++$+++ 6482 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We -- we -- in the Bulger case, I opposed certiorari, saying that yes, it's an important question, but it was correctly decided. At that time, there was no conflict. Then when the Sixth Circuit opinion came up, we filed the petition saying it's an important question and now there's a conflict between the State supreme court and the Federal court of appeals.
03-407 +++$+++ 6483 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's the position you've taken in -- in the Halbert case, that the Court should take the case?
03-407 +++$+++ 6484 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What I said in the Halbert case is that the Court need not grant this petition now because, although it's an important question, the issue is pending in -- in this Tesmer, the current case, Kowalski v. Tesmer. If this Court rules in our favor on standing and then does not reach the constitutional question, then it would be appropriate to grant certiorari in either the Halbert case or the Harris case because the -- the determination of the constitutionality of this statute is important to the State of Michigan.
03-407 +++$+++ 6485 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do they have lawyers in those cases?
03-407 +++$+++ 6486 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Now, the Halbert petition is pro se. The Harris petition has either retained or pro bono counsel. But the -- the constitutionality of the statute is -- excuse me -- is directly challenged in both of those petitions.
03-407 +++$+++ 6487 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask you if in exercising prudential judgment on whether to accord prudential standing, because I guess there's article III standing here, is it appropriate to take into consideration as one fact that it's already been argued in this case and it's now ripe for decision, or should we just totally ignore that aspect of the case?
03-407 +++$+++ 6488 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As a matter of judicial economy, there is a point to be made that it -- the issue has been briefed and argued. So perhaps it should be decided. Just last term in Elk Grove v. Newdow, the Court faced a similar situation. They disposed of the case on standing --
03-407 +++$+++ 6489 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but in that case there was a conflict between the interests of the third party and the interests of the litigant or a potential client. Here there's no conflict between the lawyers and the clients.
03-407 +++$+++ 6490 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true. That's true.
03-407 +++$+++ 6491 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course, also bearing upon our prudential judgment, I -- I suppose, would be that in order to reach the merits, we have to do what you assert to be an end run around the Younger abstention. And --
03-407 +++$+++ 6492 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's -- that's correct. In my view, the -- the most logical, most appropriate disposition would be to say that these attorneys do not have standing. Therefore, reverse the Sixth Circuit's judgment. There are these other vehicles pending now to reach the constitutional issue.
03-407 +++$+++ 6493 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- but why isn't the Younger abstention problem just like the mootness problem in Craig against Boren? It took one class of litigants unavailable but then allowed the third party to have standing. Why -- why aren't -- aren't your opponents here just like the bartenders in Craig against Boren?
03-407 +++$+++ 6494 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in determining prudential standing, there are several criteria that should be examined in deciding whether there's an exception to the general rule where a litigant cannot argue the rights of third parties. In Craig v. Boren, the statute directly affected the vendor in that case. It was a statute against sale of certain alcoholic beverages. And in this case we don't have that. Also, in Craig v. Boren, nobody argued prudential standing considerations until the case reached the Supreme Court apparently. But in our case, we have a situation where we have lawyers who do not have any present clients who are not directly affected by the statute. They're not claiming rights --
03-407 +++$+++ 6495 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but they have the same interest that the bartenders had because they won't make some -- sell their services and the bartenders wouldn't sell the booze. I don't see the difference.
03-407 +++$+++ 6496 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in -- in Craig v. Boren, the -- if the bartenders did not comply with the statute, they'd be subject to criminal penalties. Here, the attorneys will not be subject to any criminal penalties.
03-407 +++$+++ 6497 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, why --
03-407 +++$+++ 6498 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That wasn't true -- that wasn't true in the Pierce v. Society of Sisters case and it wasn't true in the Singleton case. Both of those cases recognized third party standing, although the prohibition was not on the plaintiff who was seeking to raise the rights of another person.
03-407 +++$+++ 6499 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's -- that's true. The parties have discussed many cases. Almost all of them have some factors similar to the circumstances here, and as we've argued, all of them have distinguishing factors too.
03-407 +++$+++ 6500 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But isn't -- isn't the biggest distinguishing factor the one that you raised in response to Justice Scalia's question? These -- these lawyers can represent somebody on a direct appeal, the same way and raise exactly the same issue that they're trying to raise on third party standing now. Isn't -- isn't that true?
03-407 +++$+++ 6501 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- precisely. Just normal principles of litigation counsel that it is appropriate to have a real party in interest. The criminal defendants whose rights are at stake in the statute litigate that case. If you take the step and allow standing for an attorney, based on speculative claims about future clients and economic harm to the attorney, as the dissent in the Sixth Circuit says, that opens up the possibility of vastly expanding the doctrine of standing beyond what this Court has ever said.
03-407 +++$+++ 6502 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, is it correct as a factual matter that these particular lawyers do have clients that they could be representing --
03-407 +++$+++ 6503 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is not in --
03-407 +++$+++ 6504 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- on direct appeal?
03-407 +++$+++ 6505 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that is not in the record. In their response brief, they said that they currently do have clients, but in the complaint -- this case was, again, a facial challenge. It was decided on summary disposition or it was a motion to dismiss. It was filed and decided within about a month. And there was no factual development here. If they had actual clients, there would be clearly a closer relationship, but again, those clients would not be hindered from making the claims themselves. There is no reason --
03-407 +++$+++ 6506 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the -- the claim that -- I'm sorry.
03-407 +++$+++ 6507 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it just would seem to me that the lawyers who are advancing this claim may or may not be representing individuals who want to make the same claim, but there -- there must be some lawyers who want to make these claims who don't have any clients, and the question is whether they have standing. And are they to be defeated standing because there are a lot of other lawyers who might also sue?
03-407 +++$+++ 6508 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In our view, as a general proposition, lawyers should not be given independent standing to raise claims of their clients. When the clients can present their own issues themselves, as they can in this case or in this situation under the statute, there's no need --
03-407 +++$+++ 6509 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is that different from Caplin & Drysdale where the lawyers didn't raise the interest of the client and --
03-407 +++$+++ 6510 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Again, there was an actual client in that case and there was significant money at stake. The lawyers had been paid money from drug forfeiture. They had been paid $25,000, and they wanted another 107 --
03-407 +++$+++ 6511 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But as far as the actual client, you moved to dismiss. So that's why there's no -- was no back-development. You moved to dismiss. Therefore, you have to assume whatever facts --
03-407 +++$+++ 6512 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that's correct.
03-407 +++$+++ 6513 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- in favor of the opponent of the motion.
03-407 +++$+++ 6514 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. But my response on that was to the question of, you know, do they in fact now have clients. There is no allegation in the complaint and no proof that they now have clients. They may --
03-407 +++$+++ 6515 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if -- if you assume -- you assume the correctness of the allegations, which you -- you have to do at this point, the allegation is that they would get clients and would be paid but for this bar to payment. Isn't that correct? So if you take them in terms of their claim, you've got to assume that they will have clients and they can bring this -- this issue on behalf of the client.
03-407 +++$+++ 6516 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct. That goes to the criteria of injury in fact and close relationship with the third party. We still have the criteria that I wanted to discuss this morning about hindrance to the right -- to the ability of the third party to litigate for themselves. Excuse me. In our view, there is no need to expand the doctrine of standing to permit lawyers to have independent standing to make these claims because the clients, who are directly affected by the statute, can make them themselves. There are the two pending habeas -- or two pending petitions for certiorari that we've mentioned. There is another case, the Bulger case. Mr. Bulger himself, after he lost in the Michigan courts, he filed a petition for -- for habeas corpus. And the district court granted the writ of habeas corpus. We appealed. That case is now pending in the Sixth Circuit. So that's another vehicle. It is also possible that an indigent inmate himself could bring a section 1983 case. It's simply not necessary to expand the doctrine of standing to give lawyers --
03-407 +++$+++ 6517 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How could an indigent bring a 1983 case? I thought you said that that would be barred by Younger.
03-407 +++$+++ 6518 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If they had a pending prosecution, it would be barred by Younger. Once that pending prosecution is over, they could bring a 1983 action.
03-407 +++$+++ 6519 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Could they? Because I thought this Court had held that -- that you can't bring a 1983 suit if what you're seeking to do is overturn the conviction.
03-407 +++$+++ 6520 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under Heck v. Humphrey, if the outcome of the 1983 case would necessarily imply that the conviction or sentence is invalid, you cannot bring the 1983 case. Here, the allegation is simply that they were entitled to counsel. That's not the substantive merits of whether the claim -- whether they are properly convicted or properly sentenced. The Sixth Circuit, in a case decided August 31st --
03-407 +++$+++ 6521 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if that -- that -- that's -- you're saying that the defendants themselves could not sue now under 1983?
03-407 +++$+++ 6522 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ A -- a defendant who is currently in the State system on direct appeal is barred by the abstention doctrine from filing a 1983 action. But after they go through the State court and lose, in addition to filing a writ of certiorari with this Court --
03-407 +++$+++ 6523 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And presumably up to this Court, if they want to come that far.
03-407 +++$+++ 6524 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, certainly. After -- after they go through the State court, they could file a writ of cert in this Court, as the two pending petitions have. They could file a complaint for habeas corpus. They could bring a facial challenge under 1983. In a case called Howard v. Whitbeck from the Sixth Circuit, just decided about a month ago, that was the very question that was decided. An inmate -- a prison inmate, challenging another statute, litigated and lost in the State court, then filed a 1983 action. We argued in a Federal case under Rooker v. Feldman, he was actually trying to seek review of the State court judgment. The district court agreed. But the Sixth Circuit just said Rooker v. Feldman bars the as-applied challenge, but they remanded for a trial on the merits of the facial challenge, which is not barred by Rooker v. Feldman. So an inmate who has been unsuccessful in the State court, under Sixth Circuit law in my jurisdiction, can bring a 1983 action. So there are at least three vehicles that an inmate can bring --
03-407 +++$+++ 6525 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And do you -- do you agree that that's right? And you said that that's their theory, that they could bring a 1983 action.
03-407 +++$+++ 6526 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We are not filing a petition for certiorari from that decision. We are abiding by that decision. We're going back and we're going to try that case on the merits of the facial challenge to the statute. That -- that case is Howard v. Whitbeck, docket number 03-1396.
03-407 +++$+++ 6527 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course, what the other side says is, well, yes, maybe they can bring these suits, but in all of those suits, they don't have counsel, what they -- what they --
03-407 +++$+++ 6528 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true. That -- that gets into the -- the merits of the constitutional claim. And in our view, talking about the merits, all that is required in the Michigan application for leave to appeal process is that a defendant identify the issues and ask the appellate court to review it. Unlike Douglas, this is not a review on the merits. An order denying an application for leave is not an affirmance. It's not an adjudication of the merits of any legal issue.
03-407 +++$+++ 6529 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what do we look to in order to verify what -- what you've just said? Do the Michigan appellate courts catch mistakes all the time? And if so, what's the standard that they use?
03-407 +++$+++ 6530 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The court rules concerning applications for leave do not set out specific standards. What -- what the court of appeals can do on an application for leave is grant the application, deny it, or issue peremptory relief.
03-407 +++$+++ 6531 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what are the standards they use? Where -- where do I look to find out what standards they use, if I get there?
03-407 +++$+++ 6532 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To the best of my knowledge, there are no published standards in court rule or statute on that. The court is free to exercise its discretion to -- to deny leave for any reason that it chooses.
03-407 +++$+++ 6533 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can you give me an example of where they grant leave to appeal, and if not -- and it's not one of the exceptions listed in the statute such as incorrect --
03-407 +++$+++ 6534 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If -- if --
03-407 +++$+++ 6535 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- such as incorrect sentencing?
03-407 +++$+++ 6536 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if -- under the statute, if the court of appeals grants leave, counsel is automatically appointed.
03-407 +++$+++ 6537 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right. What are the instances in which they grant leave, other than sentencing or some other statutory --
03-407 +++$+++ 6538 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They're -- most often they are sentencing issues. The statistics we put in our brief, in footnote 25 of our brief, indicated that out of the -- in 2001, there were 38,000 guilty plea convictions. The court of appeals that year disposed of 7,600 cases. 14 percent of them were guilty plea appeals. Most of them were disposed of by order. There were somewhere in the neighborhood of about 50 decisions -- opinions issued in guilty plea cases. I have not canvased all of them. I suspect that the vast majority of them are sentencing issues.
03-407 +++$+++ 6539 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do we -- do we know whether any of those were cases that didn't fall under the four categories where you a -- a right to?
03-407 +++$+++ 6540 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In every case where there was an opinion, counsel was appointed. The statute requires it.
03-407 +++$+++ 6541 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But one of the problems, I thought, for the indigent is the rulings -- am I correct -- in Michigan, that they're not required -- say, there's an objection. There's no written record that the indigent could look to, even assuming he could understand it, to -- to determine what issues might be raised on -- on appeal.
03-407 +++$+++ 6542 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe you're incorrect on that, Your Honor. The -- what an indigent inmate will -- or defendant will have available to him to prepare an application for leave to appeal is a transcript of the proceedings. He's entitled to that for free. He will have whatever written motions and written decisions the trial judge may have issued. He will have -- in the transcript, he will have the oral motions and the decisions of the judge, and then in addition to whatever pro se materials, as in the Ross v. Moffitt case, the inmate can muster. In -- in these cases, there are other pro se materials available. The district court's opinion in this case noted that there is a -- a form brief, 38-page brief that was circulating among inmates on the precise question of entitlement to counsel, which two of the defendants used in their State court appeals. But in determining whether counsel is constitutionally required under Ross v. Moffitt, this Court has said you look to two things. Are the merits decided? What is the nature of the appellate process? And if the merits are not being decided, as in the Michigan case, we say that falls within the Ross v. Moffitt line of cases, unlike the Douglas case. In -- in addition to the nature of the appellate proceedings, he --
03-407 +++$+++ 6543 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, now, your -- your opponents quote some language from the -- one of the Michigan court of appeals which suggests that the reason that an appeal was denied was it had no merit.
03-407 +++$+++ 6544 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ A -- a typical order that the court of appeals issues when it denies an application for leave to appeal says, denied for lack of merit on the grounds presented. But there is published, controlling Michigan authority, which we cited in our brief, that says that language does not mean that the court of appeals looked at the merits of the underlying legal issue. What -- what the court is looking at is the question of whether to grant leave or deny leave. If they grant leave, counsel will be appointed. In a very real sense --
03-407 +++$+++ 6545 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What -- what are they getting at when they say merit? I mean, I take it you concede there was a quotation from that Contineri case on -- cited on page 30 of their brief. I mean, what -- what is the reference to merit supposed to mean?
03-407 +++$+++ 6546 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I do not know why the court of appeals uses that language. What I do know is that the --
03-407 +++$+++ 6547 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't the reasonable thing to assume that they use it as we would normally expect it to --
03-407 +++$+++ 6548 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the --
03-407 +++$+++ 6549 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- to mean by the words they use?
03-407 +++$+++ 6550 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ On its face, that would be the first impression that is given from those words. However, the published opinions of the court of appeals we've cited in our brief reject that, and they say that in an application for leave to appeal, the court of appeals is not adjudicating the merits. My opposing counsel in this case was counsel of record in the Bulger case in the Michigan Supreme Court. He made exactly that same argument. He persuaded the dissent in that opinion, but he did not persuade the majority. They didn't decide the issue precisely, but he has been arguing that ever since. But the -- all the precedent that Michigan has on that point we've cited in our brief. Those are not decisions on the merits.
03-407 +++$+++ 6551 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is it true that Michigan is the only State in the Union so far that denies counsel on a first appeal, whether discretionary or mandatory?
03-407 +++$+++ 6552 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that is incorrect. The plaintiffs have cited a 1987 habeas corpus case that purports to make a national survey. In the Michigan v. Bulger Michigan Supreme Court opinion in footnote 3, they cited a 1992 Arizona study which reached almost an opposite conclusion. They said there were only seven States which give unrestricted right of appeal, and there were 21 States that prohibited appeals --
03-407 +++$+++ 6553 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not -- not the right of appeal. The right to counsel, whether it's a mandatory or --
03-407 +++$+++ 6554 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's my understanding that Michigan may be the only State that has a specific statute prohibiting it with exceptions like this, but it's also my understanding that the practice in many other States is that counsel is routinely denied in appeals from guilty pleas. I'd like to reserve my remaining time.
03-407 +++$+++ 6555 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Very well, Mr. Casey. Mr. Moran, we'll hear from you.
03-407 +++$+++ 6557 +++$+++ FALSE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: In fact, in the 41 years since this Court's decision in Douglas, no State, not one, not even a -- a territorial jurisdiction, except for Michigan, has even attempted to deny counsel to any indigents appealing any type of first tier appeal.
03-407 +++$+++ 6558 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, Mr. Moran, this is a very important question, whether the Michigan law can survive. But I think before we can address that, we have to decide whether there is standing for the lawyers you represent here today, and that's a much tougher question I think. Is it possible that this Court could grant certiorari in one of the pending petitions and resolve the underlying issue of constitutionality of Michigan's unusual law?
03-407 +++$+++ 6559 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is, of course, possible, Justice O'Connor, that this Court could do that.
03-407 +++$+++ 6560 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if we were to grant you standing here, wouldn't we have sort of expanded our existing holdings on who has standing?
03-407 +++$+++ 6561 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not at all, Justice O'Connor. This case fits squarely within the two prior lawyer-client standing cases, the Triplett case in which this Court unanimously found standing for a -- for a lawyer representing black lung claimants, and the Caplin &Drysdale case in which this Court found standing for a third party assertion by a firm representing a criminal defendant. And what those three cases have in common and what makes them unique is that this can only arise in a case in which the statute or law being challenged disentitles the client either through loss of funding or through, like Michigan's law, a statute -- disentitles the client to representation. Any other change in the law, tort reform brought up by my --
03-407 +++$+++ 6562 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it doesn't really disentitle the client to representation. It says counsel won't be appointed for him. But presumably these lawyers could have offered their services.
03-407 +++$+++ 6563 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, that wouldn't be practical, and that raises a point that Justice Souter also raised in the argument. It wouldn't be practical for Mr. Fitzgerald or Mr. Vogler to offer their services pro bono to some indigent in this position because to do so would probably -- probably be unethical or malpractice. First of all, they can't be appointed. What the statute prohibits is the appointment of counsel like Mr. Fitzgerald and Mr. Vogler. So they -- they cannot form an attorney-client relationship by operation of law.
03-407 +++$+++ 6564 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But isn't the answer that all they have to do is to say, okay, I will represent him but I am representing him with a claim for funds? And at the end of the day, regardless of what the Michigan law says, I'm going to say to the State of Michigan, through the court, pay me for what I did. That isn't a waiver and there's nothing unethical about it.
03-407 +++$+++ 6565 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But Justice Souter, that's impractical and unethical in this case because if Mr. Fitzgerald and Mr. Vogler were to do that, they would have to represent the indigent on his or her underlying plea and sentencing issues --
03-407 +++$+++ 6566 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right.
03-407 +++$+++ 6567 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- or those would be lost forever --
03-407 +++$+++ 6568 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Absolutely.
03-407 +++$+++ 6569 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- because the time would fly. And so if they also represented him on the underlying plea and sentencing issues, then this person would not -- then the underlying defendant would not be a person with standing to raise the lack of counsel because in fact they have counsel.
03-407 +++$+++ 6570 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, which -- which indigent defendants are the attorney plaintiffs asserting claims on behalf of here? Is it past defendants?
03-407 +++$+++ 6571 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This was -- this was -- for Mr. Fitzgerald and Mr. Vogler, they were challenging both the prestatutory practice of the three defendant judges.
03-407 +++$+++ 6572 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're talking about the two individuals, but they've been dismissed.
03-407 +++$+++ 6573 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Mr. Fitzgerald and Mr. Vogler, Justice O'Connor, are the attorneys. They were -- they --
03-407 +++$+++ 6574 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I'm trying to find out what indigent criminal defendants are these attorneys attempting to represent here.
03-407 +++$+++ 6575 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They routinely take appointments. They are on a list of --
03-407 +++$+++ 6576 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Future defendants?
03-407 +++$+++ 6577 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Presently and future defendants.
03-407 +++$+++ 6578 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Past defendants?
03-407 +++$+++ 6579 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Past defendants. They -- they --
03-407 +++$+++ 6580 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if it's past defendants who were convicted and didn't have counsel, how is it consistent with Heck v. Humphrey that they could be here, these attorneys?
03-407 +++$+++ 6581 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think I -- I think I misspoke. At the time the statute was passed, it had not gone into effect. This challenge was filed in order to prevent the statute from going into effect, to prevent approximately 2,000 Michigan indigents a year being denied the right to counsel.
03-407 +++$+++ 6582 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, are you asserting then that these attorney respondents are here trying to represent future defendants?
03-407 +++$+++ 6583 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Present and future defendants.
03-407 +++$+++ 6584 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if it's present defendants, how is that consistent with Younger? How can they do that?
03-407 +++$+++ 6585 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they're not representing any named defendants. The -- the problem is that as the statute goes into effect, they will presumably not receive any further funding for --
03-407 +++$+++ 6586 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if it's future people, how is it consistent with Los Angeles v. Lyons? I mean, I just don't see how these attorney representatives get here.
03-407 +++$+++ 6587 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they're in exactly the same position as the bartender in -- or the beer vendor in -- in Craig v. Boren. They're representing prospective clients, prospective patients as in Singleton v. Wulff again. This Court has over and over again -- in fact, in Triplett itself, this Court recognized that -- specifically said that in Triplett that it applied to prospective clients, that the -- and it said that in Triplett that -- it quoted the three factors. And it said that -- excuse me. I'm looking at the wrong page. It said in Triplett that a restriction upon the fees a lawyer may charge applied to the lawyer's prospective client of a due process right to obtain legal representation falls squarely within this principle. And that was the principle of third party standing that this Court cited --
03-407 +++$+++ 6588 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, of course, in Triplett, the attorneys themselves were subject to discipline. They were raising third party rights in order to defend a proceeding brought against themselves. It seems to me that's distinguishable.
03-407 +++$+++ 6589 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
03-407 +++$+++ 6590 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the same thing in the bar case. The -- the restriction against the sale of -- of liquor was a restriction imposed upon the person seeking to raise the third party right. But here, there's no restriction that applies to these lawyers who are seeking to raise the third party right.
03-407 +++$+++ 6591 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But Justice Scalia, this Court has never held that such a restriction is a condition precedent or required in order for a person to assert third party rights.
03-407 +++$+++ 6592 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's so, but we've never held what you want us to hold either, that -- that when the law does not bear upon you personally, you have the right to raise the claim of a prospective client. We've never held that either.
03-407 +++$+++ 6593 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in -- Singleton is a case in which there was no direct sanction against the doctors who provided Medicaid abortions.
03-407 +++$+++ 6594 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, just as -- as to Triplett and Boren, you can't cite those two cases and say those are controlling and then say, well, we've never held it.
03-407 +++$+++ 6595 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. I didn't follow that question, Justice Kennedy.
03-407 +++$+++ 6596 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, we've said that Triplett and -- and Boren are -- are distinguishable, and you said, well, we've never ruled on this point. Well, then Triplett and Boren aren't controlling.
03-407 +++$+++ 6597 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think you have ruled on this Court -- point by many times recognizing that even persons against whom the statute or law would not directly affect -- for example, all the way back to 1925 with Pierce v. Society of Sisters, there was no legal prohibition against the school. The legal prohibition was against the students not going to public school. So 80 years ago this Court recognized that. In a situation analogous to this, the school --
03-407 +++$+++ 6598 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It was -- a prohibition was on the parents and there were no parents as plaintiffs in that case --
03-407 +++$+++ 6599 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
03-407 +++$+++ 6600 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- only the schools.
03-407 +++$+++ 6601 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Justice Ginsburg. It was the school that was -- was held to have standing to assert the rights of future and current students, and the same is true of the Singleton case where, again, there was no particular restriction against the doctors. It was simply that they would not get funding.
03-407 +++$+++ 6602 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But there was a problem, wasn't there, in Singleton that -- that the part that said that the doctors could raise the patients' right as opposed to the doctor's own right to practice or whatever, that that was only a plurality?
03-407 +++$+++ 6603 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was a plurality portion of the opinion.
03-407 +++$+++ 6604 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it shouldn't be cited then. You're citing it for something that the Court didn't hold.
03-407 +++$+++ 6605 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, actually we've cited it in our brief only for the article III proposition which this Court unanimously agreed that the doctors had article III standing because there was an economic energy --
03-407 +++$+++ 6606 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You -- I thought you were citing it here for the quite different proposition that -- that you can raise third party rights.
03-407 +++$+++ 6607 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But ultimately this Court in Singleton allowed the doctors' claim on behalf of the patients to proceed. I understand that it was a plurality opinion on the -- on the jus tertii standing.
03-407 +++$+++ 6608 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I -- I could accept -- I guess I probably would accept your position if I did not think there -- there was another equally workable alternative here. And I didn't understand your answer to my earlier question in which you said, if I recall correctly, that it would be unethical for these lawyers to represent a -- a future client, subject to a claim to be paid and on behalf both of the client and, I suppose, of themselves, but essentially on behalf of a client, say, there is a right to State money to pay the lawyer who is representing them. It would be, as I understood you to say, unethical for the lawyer to proceed on that basis. And I don't understand the reason for your answer.
03-407 +++$+++ 6609 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think I might have misunderstood your question, Justice Souter. The question I understood was why don't they represent people and raise only the entitlement to right to counsel. In the Bulger case, for example, the Michigan Supreme Court --
03-407 +++$+++ 6610 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Oh, no. I'm assuming they -- they represent the client for all purposes and one of the client's claims is, pay my lawyer. I don't have any money. Your statute is unconstitutional. Why cannot the lawyer pursue that claim on behalf of the client and -- and raise exactly the issue that is being raised in substance here?
03-407 +++$+++ 6611 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If that attempt -- if that method were attempted, Mr. Casey would undoubtedly argue that the attorney would not be entitled to any funding because the attorney was never appointed. You can't just go out and find indigents that you would like to represent. You have to be formally appointed.
03-407 +++$+++ 6612 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, except that that's a very formalistic answer. The -- the claim, in effect, would be I have a right to be appointed whatever your statute says because -- or my -- the -- the client would say my lawyer -- I have a right to appointed counsel, whatever your statute says, with the consequence of payment. So to say, well, they're not appointed, that's the question. Should they be appointed? I don't see why they cannot raise that issue.
03-407 +++$+++ 6613 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The problem is is that the way the Michigan system works, it works on a strict rotation system, and so there's no -- there's no line-jumping here. There's no right for a -- a client to -- to request a certain attorney, for a certain attorney to go the head of the queue and say I would like to represent that fellow and be --
03-407 +++$+++ 6614 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay, but these -- these lawyers are in the rotation. Are you suggesting that the rotation is so enormous that it will be 20 years before they get another client?
03-407 +++$+++ 6615 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, not at all. They --
03-407 +++$+++ 6616 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
03-407 +++$+++ 6617 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They routinely --
03-407 +++$+++ 6618 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I mean, your -- your claim is that they are going to get clients in the future and they -- they ought to have a right to be paid when the time comes. So why doesn't, number one, a lawyer representing the next client, whoever he may be, have a right to raise this, and why doesn't each one of these lawyers have a right to raise it presumably within a reasonable time when they next come up in the rotation?
03-407 +++$+++ 6619 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it's clear that the Michigan courts would unquestionably hold that a lawyer who simply inserts himself into a relationship without formal court appointment is not entitled to be paid.
03-407 +++$+++ 6620 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Sure they would, and that's what will get brought to this Court. That's what we're here for.
03-407 +++$+++ 6621 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the problem is, Justice Souter, we would then have an issue of Michigan law inserted as to whether --
03-407 +++$+++ 6622 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, because the claim is that they have a right under Federal law to an effective procedure whereby paid counsel can be supplied to them. That's a Federal issue, not a State issue.
03-407 +++$+++ 6623 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That part is a Federal issue, but what Michigan --
03-407 +++$+++ 6624 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's all you've got to get up here.
03-407 +++$+++ 6625 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's at least an argument.
03-407 +++$+++ 6626 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's an argument.
03-407 +++$+++ 6627 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And even if they lose on it, they still will have -- would have raised the issue that you are most concerned about getting raised. They're not -- they're not so much interested in the so many dollars for this particular representation. Even if they lose on what seems to me at least a close argument, they will have raised the question you're trying to raise today.
03-407 +++$+++ 6628 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And they will have to do so without any prospect of being paid, and that's -- that's the problem.
03-407 +++$+++ 6629 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Who's paying them for this lawsuit?
03-407 +++$+++ 6630 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They're not being paid for this lawsuit.
03-407 +++$+++ 6631 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right. Exactly the same situation. They can -- they can bring the case directly for the client they're representing just as readily as they can bring this one. And if that is true, why is there an impediment to raising the issue unless we recognize third party standing?
03-407 +++$+++ 6632 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because Justice Souter, they would have to represent them on all of their issues. They would have to represent them on their plea and sentencing issues without being paid. And that's not what they're doing in this --
03-407 +++$+++ 6633 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Without being paid if they lose --
03-407 +++$+++ 6634 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in this litigation.
03-407 +++$+++ 6635 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- being paid if they win. In this case, if they win, they don't get a dime because they're not representing a client. All they get is a declaration.
03-407 +++$+++ 6636 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
03-407 +++$+++ 6637 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And they'd be better off to represent a real client.
03-407 +++$+++ 6638 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's right. They have a shot at getting paid using this other method.
03-407 +++$+++ 6639 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In -- in this lawsuit, if we win on the merits, they will then get far more appointments on the rotation system and then they will get paid for those appointments.
03-407 +++$+++ 6640 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why will they get more appointments?
03-407 +++$+++ 6641 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because --
03-407 +++$+++ 6642 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought you said there's a strict rotation system. When your name comes up, you get an appointment. How is that going to change regardless of how this comes out?
03-407 +++$+++ 6643 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the statute, which is now in effect -- and this goes, by the way, back to the issue of prudential standing --
03-407 +++$+++ 6644 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Oh, you're just saying there -- there's going to be a further class of clients to be represented on the rotation.
03-407 +++$+++ 6645 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. Far more.
03-407 +++$+++ 6646 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay, but that's -- that's true.
03-407 +++$+++ 6647 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and while this Court considers these issues of prudential standing, thousands of Michigan defendants will be denied the right to counsel --
03-407 +++$+++ 6648 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And while this suit is being brought, we can't do the simple thing, which is to take a case from an indigent who's raising it that we happen to have on our docket and face it directly because everybody is tied up in these knots on standing. I mean, what -- what is it that -- that you -- led you to bring this case rather than just filing an amicus brief in a case brought by a real indigent who wants a lawyer?
03-407 +++$+++ 6649 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because there -- there was no person in position at the time. The problem was we had to file this litigation before the statute went into effect because once the statute went into effect, thousands of Michigan indigents would be denied the right to counsel every year and would suffer probably irreparable damage to their right to appeal --
03-407 +++$+++ 6650 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I see -- I see that. That's a good answer. And the -- the question I have is if I now, since we have real indigents, believe that there absolutely is a way for a real indigent to raise this claim that isn't even hard, you could file an amicus brief. Suppose I believed that, and I do believe it actually. If I believe it, then does your third party standing claim disappear?
03-407 +++$+++ 6651 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
03-407 +++$+++ 6652 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Now, if it doesn't disappear and I hold in your favor, would I then be opening the door to any lawyer whose pocketbook is hurt by tort reform, by any change at all, you know, that means less money for him, and we'd be besieged with people? Instead of the clients, we'd have all the lawyers in complaining that they want to be richer. Now, that's what's worrying me. So on my assumption, how could I possibly decide in your favor without opening that door?
03-407 +++$+++ 6653 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your --
03-407 +++$+++ 6654 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's the question I'd like answered.
03-407 +++$+++ 6655 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the only kind of case to which this applies is a case exactly like Triplett, a case exactly like Caplin & Drysdale where the claim is that the underlying change in the law or the underlying law disenfranchises or disentitles the indigent or the criminal defendant or the defendant to representation.
03-407 +++$+++ 6656 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because?
03-407 +++$+++ 6657 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because, first of all, if the indigent or the client still has representation, then there is no hindrance to the third party raising it themselves.
03-407 +++$+++ 6658 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is that? Why would a change in substantive law --
03-407 +++$+++ 6659 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. I assumed there's --
03-407 +++$+++ 6660 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- have the same result? Suppose there's a change in -- in the antitrust law and -- and the person says this change -- this change has the -- the effect of -- of denying me equal protection of the law. That's the claim that the -- that the client would have. But there's a lawyer who says, my goodness, this change will mean there are many -- many fewer antitrust suits. I can demonstrate that. That's my specialty, antitrust law. I'm going to lose a lot of business. Why wouldn't he have the right to raise the equal protection claim of the prospective client?
03-407 +++$+++ 6661 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the client could raise it directly, represented by the attorney. And so the third prong in jus tertii standing would be clearly missing in that case.
03-407 +++$+++ 6662 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. I'm sorry. I -- I -- Justice Scalia and I were assuming the same thing. If I assume that there's no problem with the real person, the indigent, raising the claim himself -- and I'm saying on that assumption, which I believe, then if I were to decide in your favor, how would I not be opening the door that I wanted to keep firmly closed?
03-407 +++$+++ 6663 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But this Court's precedents indicate, Justice Breyer, that the indigents do have a significant hindrance to filing their claims themselves.
03-407 +++$+++ 6664 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, okay. No. I agree with you. If in fact you think that there's a problem about a real indigent bringing a claim in Michigan, although we have two on the docket, if I accepted that premise, I would begin to think you were right. So then what I was trying to explore is whether the whole thing comes down to whether I accept that premise. And of course, that's what's everybody has been talking about, and I do see at the moment a couple of very good ways that indigents can bring it themselves, and indeed they have.
03-407 +++$+++ 6665 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I think --
03-407 +++$+++ 6666 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But everything comes down to that. Right?
03-407 +++$+++ 6667 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think an answer I need to give to -- to cut through all of this is that third party standing is never predicated on the impossible. Third party standing is never predicated on the idea that third party standing is appropriate only if it is impossible for some indigent to make it into court or some third party or the person whose rights are being violated to make it into court. All that must be shown from this Court's precedents is a hindrance. So this Court did not require in Craig v. Boren that it was impossible that some young man could get his claim in front of the court.
03-407 +++$+++ 6668 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It was altogether possible there had been a young man. The problem was he turned 21. So the case would -- from his point of view was moot.
03-407 +++$+++ 6669 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, but this Court never suggested that it was -- showing that it was impossible for someone to quickly get his claim before the court was --
03-407 +++$+++ 6670 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think I agree with you on that. I'm just -- the reason I think it's so easy is because we get indigents. We get thousands of them. And all you have to have is some indigent saying, hey, I want a lawyer. Okay? That's all. He has to be able to write those words. And at that point, you and the others come in with amicus briefs, if necessary, and support him.
03-407 +++$+++ 6671 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the problem is is that in the meantime thousands of Michigan indigents are going to be denied counsel.
03-407 +++$+++ 6672 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask you a practical question about what is currently before the Court? Mr. Casey I think told us that the Halbert case is on for the October 8th conference. If we should grant cert in either of those direct from the Michigan Supreme Court -- Michigan Supreme Court following Bulger, so you always leave before then. If we should grant in either of those cases, wouldn't the wise thing be to simply hold this case till those are decided?
03-407 +++$+++ 6673 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That may well be a wise course of action -- action, Justice Ginsburg. I should point out that Mr. Casey, when he filed the response to the Bulger cert petition, brought this Court's attention to the fact that this underlying litigation was proceeding in a case that was then called Tesmer v. Granholm. And so he brought to this Court's attention that we had already prevailed in Federal district court in Tesmer v. Granholm as a suggestion as to why this Court did not need to grant cert in the Bulger case, and so this Court did not grant cert. I don't know, of course -- I don't know why this Court did not grant cert in Bulger.
03-407 +++$+++ 6674 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But he said now he's not taking that position in the Halbert case.
03-407 +++$+++ 6675 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I can be confident that if there are any procedural hurdles to this Court's exercise of jurisdiction in any of the State cases, Mr. Casey will alert this Court of them. And there may well be. For example, in the Melody Harris case, the Michigan Supreme Court remanded for further -- remanded for her to then file an application for leave to appeal on her underlying plea and sentencing issues without the assistance of counsel. Was the Michigan Supreme Court's order a final order? I don't know. This Court would obviously have to resolve that. But I can be confident that Mr. Casey will certainly bring up any procedural hurdles. And of course, this Court cannot exercise jurisdiction it does not have in a case just because it would be more convenient to do so. This Court does have jurisdiction in this case. The petitioners never challenged prudential standing at any point in this litigation -- they -- they challenged only article III standing, injury in fact -- until this Court. And so part of the reason we don't have a better record is because this came on a motion to dismiss. This Court recognized in Lujan that a motion to dismiss is different than a summary judgment, requires a -- a different procedural posture. It requires the assumption of facts being true.
03-407 +++$+++ 6676 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but no facts -- no additional facts would -- would affect the central point that -- that we've been devoting most of this discussion to, which is whether there is an impediment or not to -- to the -- the actual individuals whose rights your clients are asserting raising their own rights. No additional facts bear upon that it seems to me.
03-407 +++$+++ 6677 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree with you on that, Justice Scalia.
03-407 +++$+++ 6678 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Then what case holds that there must be an impediment for the third party? I keep coming back to Craig against Boren. They could have filed another class action and say that they filed a class action and had standing. Would we have suddenly decided we won't decide the merits even though it's been argued and both sides have had their day in court?
03-407 +++$+++ 6679 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree with you, Justice Stevens.
03-407 +++$+++ 6680 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What is the source of the requirement there must be an impediment to the third party suit?
03-407 +++$+++ 6681 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, this Court has said so many times, and Powers v. Ohio, for example, noted the impediment to the --
03-407 +++$+++ 6682 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That -- where they granted standing.
03-407 +++$+++ 6683 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
03-407 +++$+++ 6684 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Have they ever denied standing on the ground that there was no impediment to the third party suit? I don't think we have.
03-407 +++$+++ 6685 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe in all of the cases that both parties cited that there are any cases in which this Court has said that there was no impediment to the third party. It is -- it is certainly not the standard --
03-407 +++$+++ 6686 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, do you think that was just idle observation then?
03-407 +++$+++ 6687 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not at all, Mr. Chief Justice. I didn't mean to be light about that.
03-407 +++$+++ 6688 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It doesn't have to be idle to be dicta, though, does it?
03-407 +++$+++ 6689 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There -- we -- we fully concede there need to be an impediment, but what it does not require is the showing that it is impossible for someone to get here. What is a showing is that for most -- for the average person in the class, just like the average grand juror in Campbell v. Louisiana, or the average venire person in Powers v. Ohio, there are impediments to getting here.
03-407 +++$+++ 6690 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you fully concede there must be an impediment even though the Court has never so held?
03-407 +++$+++ 6691 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm willing to concede that because it is so clear to me that there is, that there is an impediment that trying to get into Federal court, trying to get here, for that matter, trying to get into Federal district court -- for an indigent, a typical person who is very likely -- someone like Mr. Carter, functionally illiterate, poorly educated, completely unaware of his rights, to try and navigate the -- the procedural hurdles of the Michigan system to get all the way through the Michigan system and then into Federal court, that is a daunting hurdle. And that's Evitts v. Lucey. This Court has recognized time and time again in -- in plea cases, Roe v. -- Roe v. Flores-Ortega. This Court has recognized time and time again in Peguero that even in a plea case a typical indigent is completely incapable of getting his or her case held -- heard, especially if you have to go through multiple layers of appeal without a counsel for the first tier. And that is the problem here. On the merits, I certainly would like to correct Mr. Casey's representations about the -- the nature of the Michigan system. The -- a properly filed application for leave to appeal is invariably denied for lack of merit in the grounds presented. I certainly urge this Court to look at each and every one of the cases that Mr. Casey has cited for the proposition that that is not a determination on the merits because not one of them says that. Not one of them specifically says that a order denying leave for lack of merit on the grounds presented is not a decision on the merits.
03-407 +++$+++ 6692 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could -- could you give me an example, just from your experience in practice, where there's an important issue raised after a guilty plea that requires an appeal where it's not one of the statutory exceptions?
03-407 +++$+++ 6693 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Many, many.
03-407 +++$+++ 6694 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Most -- what are -- what are those cases?
03-407 +++$+++ 6695 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Improper denial of jail credit, making -- improper denial of jail credit.
03-407 +++$+++ 6696 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's not sentencing?
03-407 +++$+++ 6697 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is a sentencing error.
03-407 +++$+++ 6698 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay, but that's covered by the statute.
03-407 +++$+++ 6699 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it's not. The statute -- the only exceptions in the statute are for guidelines departures --
03-407 +++$+++ 6700 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
03-407 +++$+++ 6701 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and for -- and then if the indigent gets the appeal granted, but that's putting -- that's after the indigent has had to file an application identifying his or her own issues without any assistance of counsel. Double jeopardy issues. Double jeopardy issues arise in Michigan all the time; whether sentences should be consecutive or concurrent; whether there's been a breach of the plea bargain. All of these issues arise in Michigan courts every day, and while we are --
03-407 +++$+++ 6702 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are there instances where Michigan has denied the right to appeal when those claims are raised?
03-407 +++$+++ 6703 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The problem, Your Honor, is that an indigent can't raise -- a typical indigent would be completely incapable of identifying this -- these sorts of issues.
03-407 +++$+++ 6704 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ His counsel will have raised them. And -- and most, if not all, of those have to have been raised by counsel.
03-407 +++$+++ 6705 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, Michigan requires that ineffective assistance of counsel claims be raised on direct appeal. So if counsel has not raised the issue, then the indigent would have to recognize that by -- by himself, and then raise that issue, the ineffective assistance of counsel, on direct appeal. Further, even if counsel has recognized it, what we typically would have would be an oral objection at a sentencing hearing. For example, Your Honor, I think these sentences should be concurrent, and the judge says, no, I'm going to make them consecutive. That's an oral objection. The indigent will have to be able to get the transcripts, get the register of actions, get all the necessary documents, realize that that's a winning issue, that it does not put him at additional risk. That's another factor. One of the -- one of the points that a counsel can help with is tell an indigent, you don't want to take this appeal because success may result in revocation of the plea bargain and an additional risk -- will have to realize that this is in my best interest to go ahead with this appeal. This is my issue. Find the cases, find the controlling authority. And even issues as complex as a Blakely issue, which this Court, of course, will be dealing with this afternoon, that is an open issue of Michigan law right now. Is -- are the Michigan sentencing guidelines unconstitutional or at least the application of them as a result of this Court's decision in Blakely? Right now, as a result of the order in Melody Harris, a typical Michigan indigent will have to raise that complex issue of Sixth Amendment law by herself or by himself, and that's simply an impossible burden, or the issue will be lost forever. And that is -- that is a burden that no indigent can meet. And so I would hope that this Court would not get hung up on the standing issue because this issue is so important right now, as a result of the Michigan Supreme Court's order. Right now these issues are happening and right now Michigan indigents are being denied the assistance of counsel. Unique in the Nation. And so this case has been adversely argued. That's the point of prudential standing. The petitioners waived the prudential standing issues below. They challenged only article III standing. And so there is every reason for this Court not to wait for a perfect case that may never come.
03-407 +++$+++ 6706 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are you familiar with the Halbert case? You mentioned that there might be a finality problem in Harris.
03-407 +++$+++ 6707 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not familiar with that case, Your Honor. I just became aware of it by letter a few days ago and I have not had a chance to find out anything more about it. I have not seen the cert petition in that case. I'm not aware of the underlying -- excuse me -- the underlying order from the Michigan courts in that case. But there may never be a perfect case, but this case is adverse and that meets all the -- all the requirements for prudential standing. Article III standing is clearly met in this case, and I hope this Court will affirm the decision of the Sixth Circuit. If this Court has no further questions.
03-407 +++$+++ 6708 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Moran. Mr. Casey, you have 3 minutes left.
03-407 +++$+++ 6710 +++$+++ FALSE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did you waive the objection to prudential standing --
03-407 +++$+++ 6711 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We did not waive any of the standing claims in this case. We've discussed that in our reply brief. I've cited pages of the briefs where these issues were discussed. And the overriding fact is that the district court, the three-judge panel in the court of appeals, and the en banc Sixth Circuit all decided these issues. They have been properly raised and preserved and they're before the Court.
03-407 +++$+++ 6712 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Did you file a brief in opposition in Halbert?
03-407 +++$+++ 6713 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I did. I filed that about a month ago.
03-407 +++$+++ 6714 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And does that have any procedural impediments?
03-407 +++$+++ 6715 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not to my knowledge. That individual was convicted in pleas, asked for counsel citing the Federal litigation in this Kowalski v. Tesmer case. It was denied. He filed a pro se application for leave to appeal challenging the denial of counsel and raising his sentencing issues --
03-407 +++$+++ 6716 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So what was the basis for your opposition to cert?
03-407 +++$+++ 6717 +++$+++ TRUE +++$+++ MR. CASEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That the Court need not grant cert in that case because the issue is pending in this case. If -- if this case goes away, then I suspect we will agree that that would be an appropriate vehicle to decide the constitutional issue. As long as this case is pending in which the issue is raised, I suggested that the Court need not grant cert in that case to decide the issue. If the issue is not going to be decided in this case, then that would be an appropriate vehicle to raise and decide the issue. On the standing point, if the plaintiffs here are given standing, it would be a significant expansion of this Court's standing doctrine. This Court has never found third party standing when a litigant is not directly affected by a statute and there is no close existing relationship with the third party and there is no hindrance. We've discussed many cases in which some of these factors are present and others are distinguishing factors. This -- this case is, in some respects, unlike all of them. There would be a significant expansion of the doctrine. On the merits of the issue, a constitutional right to appointed counsel, under the Michigan system, please read the cases I've cited in my brief, particularly the Bobenal decision, which I've cited in my principal brief. In a footnote in my brief, I quote the orders that the court of appeals was considering. They have the same language that is at issue here. Controlling Michigan precedent says that applications for leave to appeal are not decisions on the merits. All an inmate has to do is identify the issues. That can be done. It has been done, as seen by the two pending petitions for cert. If the Court has no further questions.
03-407 +++$+++ 6718 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Casey. The case is submitted.
03-409 +++$+++ 6722 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument now on number 03-409, KP Permanent Make-Up, Inc. versus Lasting Impression, Inc. Mr. Machat?
03-409 +++$+++ 6724 +++$+++ FALSE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: This case concerns whether or not a defendant in a trademark case who fulfills the statutory requirements of the fair-use defense must also demonstrate an absence of likelihood of confusion in order to avail himself of that affirmative defense. Now, here are four reasons why that should not be the case. In the first place, if that is the case it would render the defense useless, because if there is no likelihood of confusion, then there's no trademark infringement to begin with, so why should someone try to prove an affirmative defense when there's no trademark infringement? Second --
03-409 +++$+++ 6725 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You agree with Judge Niemeyer's comment in the Fourth Circuit case, I take it.
03-409 +++$+++ 6726 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Secondly, what it does is, is it shifts the burden of proof from the plaintiff to the defendant. There's no reason ever to -- there's no reason ever to prove an absence of likelihood of confusion if you're a defendant. And then, also there's no reason to prove the fair-use defense if you have to also prove an absence of likelihood of confusion, because it's just much more of a burden. You have to prove, first of all --
03-409 +++$+++ 6727 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In this case, did the plaintiff offer any evidence of confusion, consumer confusion?
03-409 +++$+++ 6728 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This was a motion for summary judgement.
03-409 +++$+++ 6729 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And was there anything in the affidavits or attachments that have to do with consumer confusion on behalf of the plaintiff?
03-409 +++$+++ 6730 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yeah, actually, the record does contain some references to confusion. The -- in this case, the respondent, they were claiming that they did have some people that actually were confused. And when that happens, you need to look at what is causing the confusion. And essentially --
03-409 +++$+++ 6731 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it might make it necessary for a defendant in such a situation, in order to avoid some kind of summary judgement, to also offer evidence on consumer confusion to try to show there wasn't any.
03-409 +++$+++ 6732 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but that's shifting the issue, then, to whether or not there's likelihood of confusion. However, even if there -- what I'm saying is even if there is confusion, if you meet the elements of the fair-use defense, it doesn't matter if there's any resulting confusion.
03-409 +++$+++ 6733 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, is it possible that showing consumer confusion could be considered by the court on the issue of what's the fair use? What's fair?
03-409 +++$+++ 6734 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the thing is, a lot of times when there is confusion, that is evidence that the term or the word being used is not being used as a mark, so the confusion illustrates that -- one of the elements of the fair-use defense, whether or not the term is being used descriptively or as a mark, whether or not those elements are being met. The confusion does not go to the likelihood of confusion issue; rather, it goes to the individual elements of the fair-use --
03-409 +++$+++ 6735 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but I'm interested in Justice O'Connor's point. Suppose it's a close case as to whether or not the use is in good faith and it's only discretion. With reference to good faith, suppose there's very substantial confusion that's caused by the allegedly infringing mark. Does that at least bear on a good-faith assessment? In other words, suppose that it were shown that the owner of the non-registered mark, the alleged infringing mark, used the phrase -- not the mark, but used the phrase -- deliberately in order to cause confusion. Would that --
03-409 +++$+++ 6736 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes -- well, that would show an absence of good faith, and good faith is one of the elements of the fair-use defense.
03-409 +++$+++ 6737 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, so that if you know that there's going to be confusion, there is no good faith? You wouldn't go that far.
03-409 +++$+++ 6738 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I wouldn't go that far. It's a balancing Test and that's why it says "fairly and in good faith," and you have to look at how descriptive the word is, in particular. For instance, if you're using the word "best" -- as in "best buy" or "best foods" -- I mean, best is an extremely descriptive word. So you could go a lot further in claiming, "Hey, I have the best -- I have the best food," or, you know, "Come to my store. I have the best buy." And, yes, there could be confusion, but that is one of the risks that --
03-409 +++$+++ 6739 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, is it your position that subjective good faith is always a defense, no matter how unreasonable it is or how much confusion results? Is that your position?
03-409 +++$+++ 6740 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I wouldn't go that far, because you also have to look at the objective use.
03-409 +++$+++ 6741 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I would have thought that consumer confusion is one factor in determining fairness; perhaps not subjective good faith, but certainly on the issue of fairness. Some of the amici take that position, do they not?
03-409 +++$+++ 6742 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think -- I was reading the amici brief last night. I think the issue of confusion, as the INTA brief points out, you have to look at whether the confusion is illustrative of whether or not the term is being used as a mark or not. The same evidence that shows confusion can be used to show a likelihood of confusion on the plaintiff's side of the case, and that same evidence can also be used to -- in the case of determining whether or not the elements of a fair use defense have been -- have been met.
03-409 +++$+++ 6743 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What did -- what did the district court do here? Did it grant summary judgement or deny summary judgement?
03-409 +++$+++ 6744 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- well, the district court granted summary judgement on a fair-use defense. It found that, in this case, the mark was being used -- sorry, that my client's words were being used not as a mark, only to describe, and that the use was done fairly and in good faith. The Ninth Circuit --
03-409 +++$+++ 6745 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the district court -- the district court -- this way -- [Laughter.]
03-409 +++$+++ 6746 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- seemed to focus on the use of the word "micro color," just the word. It didn't bring up what was new in 1999. That is, a brochure appears where "micro color" is not simply a word, but it appears in a logo-like fashion. And as I understand it, the district court said you could use "micro color" as you had been using it since 1991. It didn't refer to the stylized 1999 new brochure. So --
03-409 +++$+++ 6747 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that is correct. The district court, in its opinion, did not specifically refer to that use in 1999.
03-409 +++$+++ 6748 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it might not have been confusion just by using the word. But when you're using it in the logo-like appearance, maybe that's different.
03-409 +++$+++ 6749 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in the abstract case, it could be. I would argue, though, in this case it's not, because that was one use on a -- you have a ten-page brochure, and it's one use on a ten-page brochure. And you -- on that same page of the brochure, at the very bottom, it said my client's name, KP Permanent Makeup. So --
03-409 +++$+++ 6750 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that wouldn't relate to the question presented here, anyway. It wouldn't relate to the reason for which we took this case.
03-409 +++$+++ 6751 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
03-409 +++$+++ 6752 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, maybe the district court misinterpreted or misapplied "fairly and in good faith" if it didn't consider the logo-like use. But, as I understand it, the only question we have before us is whether the "fairly and in good faith" provision is an exception even when there is confusion.
03-409 +++$+++ 6753 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I would agree.
03-409 +++$+++ 6754 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that -- I'm -- and I'm mixed up. I thought that the issue is whether you, on your side, have to present evidence of no confusion.
03-409 +++$+++ 6755 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I think --
03-409 +++$+++ 6756 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So as far as --
03-409 +++$+++ 6757 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I think we're both saying the same thing
03-409 +++$+++ 6758 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So as far as Justice O'Connor's question is concerned, I thought your answer would be, if they want to go and present evidence that there is confusion, to the point where it's so obviously unfair, it's ridiculous, they can do it. I mean, do you object to that?
03-409 +++$+++ 6759 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I agree.
03-409 +++$+++ 6760 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. So your answer to her question is, of course it could be relevant. Let the other side come in and show that it's relevant. You don't have to show that there is no confusion.
03-409 +++$+++ 6761 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
03-409 +++$+++ 6762 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's where we are, is that right?
03-409 +++$+++ 6763 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly --
03-409 +++$+++ 6764 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
03-409 +++$+++ 6765 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- where we are.
03-409 +++$+++ 6766 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Could you give us a -- I'd be much more sympathetic to your case if I could readily envision a situation where there is confusion but, nonetheless, the use is fair and in good faith. Give me a clear example.
03-409 +++$+++ 6767 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In my particular case? This --
03-409 +++$+++ 6768 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. I mean, make up one --
03-409 +++$+++ 6769 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
03-409 +++$+++ 6770 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that's really clear.
03-409 +++$+++ 6771 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Let's use the words "best buy." Best Buy is a famous consumer electronics store, and somebody opens up a shop, say Mark's, that says, "Mark's, he has the best buy." He wants to advertise on radio, "Come down to Mark's Electronics for the best buy - for the best buy in consumer electronics, go to Mark's," and he keeps using those words "best buy."
03-409 +++$+++ 6772 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't think there's any likelihood of confusion there, do you? I mean --
03-409 +++$+++ 6773 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
03-409 +++$+++ 6774 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- what if he just takes out an ad that says, "Best Buy," exclamation point? That would be closer.
03-409 +++$+++ 6775 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay, in that case there would be confusion, but Mark, in that case, would be using "best buy" as a trademark, not only to describe; and, therefore, he would not fulfill the statutory requirements of a fair use defense. Because a lot of times when confusion comes up, it comes up in the case that --
03-409 +++$+++ 6776 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I didn't mean to make it that in my hypothetical. You're just putting it in bold type at the beginning of the piece, "Best Buy," exclamation point. That means it's a trademark?
03-409 +++$+++ 6777 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it would be evidence that it is a trademark. You have to -- it depends how big the words "best buy" were in relation to the word "Mark's Electronics."
03-409 +++$+++ 6778 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but if you had a -- if you had a headline at the head of an ad, "Great Sale," that surely is not a trademark, just because you have it in boldfaced print.
03-409 +++$+++ 6779 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree, it's not necessarily a trademark. You have to look at the totality of the ad, and you have to look at what the person is trying to use to tell consumers to identify and distinguish the products, or, in this case, the store.
03-409 +++$+++ 6780 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I suppose if you have a sign that says "Park `n Fly" and an arrow, with a capital "P" and a capital "F," then it's arguably being used as a trademark.
03-409 +++$+++ 6781 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
03-409 +++$+++ 6782 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Whereas, if you say in a brochure, "Rent a car from us, and park and fly," then that's okay. Is that the distinction?
03-409 +++$+++ 6783 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but I'd go even further and say that the -- if you had a big sign that said "Park `n Fly," and it's next to an airport, that would not necessarily be a trademark. I mean, if it said, like, "Jerry's Airport Parking, Park and Fly," I would say that's being a descriptive use. But some people may argue differently in that case.
03-409 +++$+++ 6784 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The Ninth -- the Ninth Circuit, as I understand it, did put an initial burden on the trademark-holder to prove confusion. If you look at the petition for cert, 6a, in its opinion, it seems to recognize that the trademark-holder must show that the alleged infringer's use of the mark is likely to cause confusion or to cause mistake or to deceive. So this opinion starts out by saying, "Yes, we know that under the Lanham Act the trademark-holder is obliged to show likelihood of confusion."
03-409 +++$+++ 6785 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They do it. But then on -- if you look on page 17a of my cert petition, the same opinion, the Ninth Circuit later on go on to say, in the middle paragraph, "As expressed in Kahn's, the fair-use analysis only complements the likelihood of confusion -- likelihood of customer confusion analysis." And then they quote from Transgo, and they say -- explain that "anyone is free to use a term in its primary descriptive sense as long as such use does not result in consumer confusion as to the source of goods." In effect, what they're doing is, they're expanding the rights of trademark-holders of descriptive words. Essentially what they're saying is --
03-409 +++$+++ 6786 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, they go further in that same paragraph, and the last couple of lines refer to a Lindy Pen case, according to -- the way they described, explaining that the fair-use defense is not available if likelihood of confusion has been shown.
03-409 +++$+++ 6787 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, and that's -- that's where they're negating what they said in the beginning of their opinion.
03-409 +++$+++ 6788 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They do have one authority for that proposition. They cite McCarthy, and I think they're right about that.
03-409 +++$+++ 6789 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they do cite McCarthy, but I would submit that McCarthy is incorrect, in this case.
03-409 +++$+++ 6790 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there is a treatise writer who does take the position that if there's confusion, there's no fair-use defense.
03-409 +++$+++ 6791 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there are other treatise writers -- Kane, for example, takes the contrary position and says that fair use will always be a defense, even if -even if there is likelihood of confusion.
03-409 +++$+++ 6792 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So does the -- what is it -- the unfair competition restatement?
03-409 +++$+++ 6793 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that takes a similar position, as well, that there can be confusion and fair use at the same time. Again, you have to look at what's causing the confusion. And most often the problem is the confusion is being caused because the person with the words in question is using it as a mark, and that's causing the confusion. If -- there's certain -- there's certain -- there's certain terms and words that Congress has said never get trademark protection. Descriptive words, of course, is one of them, in the sense that they can never get trademark protection in their primary descriptive sense; they only get trademark protection in their -- in their secondary-meaning sense if they can actually prove secondary meaning.
03-409 +++$+++ 6794 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I thought we're dealing with an incontestable mark here, and the secondary meaning would be assumed.
03-409 +++$+++ 6795 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. In the case of an incontestable mark, secondary meaning is presumed; however, that still does not take away the burden of the holder of an incontestable mark of proving likelihood of confusion. And, second, the trademark protection attaches only to the secondary meaning of the mark, never to the primary, descriptive meaning of the words in question. And one other quick example. The laws say you cannot obtain a trademark in the U.S. flag. Now, we have 12 ice-cream manufacturers, they each put the flag on their ice cream. There will be confusion there. Someone will say, "I want the ice cream with the flag on it." But they all have a flag on it. That's another example where Congress said, "We will tolerate confusion." Sometimes we tolerate confusion so we can free up descriptive words so business owners are free to describe their goods to consumers. And, if I may, I'd like to reserve the balance of my time.
03-409 +++$+++ 6796 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Very well, Mr. Machat. Now, Ms. Millett, we'll hear from you.
03-409 +++$+++ 6798 +++$+++ FALSE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Justice Scalia, you asked for an example of a case where there might be confusion, but there would still be a fair use. This Court's decision in William Warner versus Eli Lilly, which was a common-law case cited on page 27 of our brief, gives an example of that. You had Coco-quinine, and Quin-coco being sold. And this Court held, as a matter of the common law fair-use doctrine, that the descriptive -- fair, truthful, descriptive use of a term to describe a product will be permitted even if consumer mistakes result. There are other cases cited in the briefs. Howe Scale is cited in our brief. The Canal Company versus Clark case. The fair-use defense that's at issue here takes its -- has its roots in that common law precedent, and that common law precedent, in origin, speaks directly, Justice O'Connor, to your -- and Justice Kennedy -- to your questions about, what does a fairness component of this test in the statute mean. There is not a general requirement that the -- say, the defendant here; the parties were reversed, but the non-trademark holder acts fairly. That's not what Congress said. It says the term -- and I'm -- and you can see, on page 9a of the statutory appendix to our brief -- the term has to be used fairly and in good faith -- putting that aside, used fairly only to describe the product. That is not some sort of general equitable receptacle for fairness concerns. That focuses on what the defendant did and how they acted in describing. That's not a test of how the public reacted. How did the defendant behave? Which is exactly what William Warner, Canal Company, and Howe Scale also looked at. In common parlance, in a common dictionary meaning, when you talk about fairly describing something, that's not general equity. That is, is it a legitimate, reasonable, proper, objectively apt, and fair way to describe a product. One could reasonably --
03-409 +++$+++ 6799 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, does -- does consumer -- if substantial consumer confusion is shown by the plaintiff, is that enough to defeat a fair-use defense?
03-409 +++$+++ 6800 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not by itself, no, Justice O'Connor. Congress told us what will defeat the defense, and that is a -- that is a conclusion that the term is being used as a mark. Consumer confusion might be, if you could explain that that demonstrates that it's being used as a mark. It might show that you're not objectively, reasonably, accurately describing your product. If I describe Twinkies as a sugary snack, that's a -- I can fairly describe Twinkies as a sugary snack. I can't fairly describe Twinkies as a healthy food.
03-409 +++$+++ 6801 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose, in the Coco-quinine case, the non -- the non-holder is doing just fine without using the particular term, and then he decides, "you know, I'm going to cut into that market, and I'm going to use the term Coco-quinine. And I'm going to do that just in order to get more customers away from the trademark-holder." Is that good faith?
03-409 +++$+++ 6802 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, because there's nothing, in the marketplace, with wanting to increase your business and to do better and to use descriptive terms descriptively to do that. The good-faith --
03-409 +++$+++ 6803 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what --
03-409 +++$+++ 6804 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- continued here --
03-409 +++$+++ 6805 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- what if he intends to increase his market share precisely by causing the confusion? That would eliminate the good-faith element, wouldn't it?
03-409 +++$+++ 6806 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The good-faith element is, do I intend -- it depends on what you mean by "causing confusion." If I intend to freeload or ride or exploit the secondary --
03-409 +++$+++ 6807 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yeah.
03-409 +++$+++ 6808 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- meaning of the term --
03-409 +++$+++ 6809 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
03-409 +++$+++ 6810 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's what good faith means in trademark law, generally. It has an established component.
03-409 +++$+++ 6811 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
03-409 +++$+++ 6812 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If I intend to do that. But just showing that consumer confusion could result, or that I hope consumers will pause and think about, you know, "what -- what's in the -- what am I now being offered in the marketplace?" But I have to -- if I intend to avail myself of the secondary meaning that you've established of the goodwill that you've generated, that's what good faith goes to. But to use fairly to describe is not a general means of just saying --
03-409 +++$+++ 6813 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask you --
03-409 +++$+++ 6814 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- if there's confusion, that's a bad --
03-409 +++$+++ 6815 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What does the term "micro color" describe?
03-409 +++$+++ 6816 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The term "micro color" describes -- this is not my area of expertise, but -- describes, as I understand it, the inks that are used for this permanent make-up process. And the reason it's called "micro color" --
03-409 +++$+++ 6817 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does it have a meaning in any context other than describing the -- one party's product in this case?
03-409 +++$+++ 6818 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I wouldn't begin to know whether other professions or occupations use the term "micro color." But my understanding, from the record, is that the color is obvious. That's -- it's different color inks. And the reason that they use the term "micro" -- and this is on page, I believe, 98 of the first volume of the joint appendix, is that the molecular size of these inks is very, very fine. It's going into the skin. It's micron-size. And so that's, I think, the -- as suggested by petitioner's client -- that that's the origin of the term "micro color." Now, "micro" is a common term that's -- common descriptive term in its own right. It appears in many contexts. Obviously, computers is one that we're all familiar with. Medical devices often will refer to "micro." But "micro color" --
03-409 +++$+++ 6819 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wasn't there -- wasn't there something to the effect that "micro pigmentation" is a synonym in the trade for permanent make-up? It's another name for permanent make-up, and it's -- it has "micro" in it, "micro pigmentation."
03-409 +++$+++ 6820 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's my understanding, yes.
03-409 +++$+++ 6821 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ "Micro pigmentation" sounds awfully close to "micro color."
03-409 +++$+++ 6822 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ "Micro color," yeah. That's my understanding. Again, I don't really want to weigh in on one side of the dispute or the other on the merits of whether "micro color" is a generic or a --
03-409 +++$+++ 6823 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you have to weigh in on it. I mean, you have to show that the -- it seems to me, if you think that side should win, that the words are being used in a descriptive sense. And if "micro color" doesn't mean a blessed thing to anybody unless they associate it with the trademark, then, it seems to me, you lose.
03-409 +++$+++ 6824 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Justice Scalia, the problem here is that the Ninth Circuit said that what makes them lose is not that they didn't use this fairly to describe their product, or not that they failed to act in good faith, or not that they were using this as a trademark, but that it was a --
03-409 +++$+++ 6825 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're right, that's not the issue in the case.
03-409 +++$+++ 6826 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Right. And my understanding -- again, the record shows that, in fact, the descriptive use of this was conceded in this case, and that's on page 29a of the petition appendix, and also in the joint appendix on 152.
03-409 +++$+++ 6827 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're right.
03-409 +++$+++ 6828 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, again, our concern is that this statute has to be read with the terms Congress enacted. Congress drew a balance here. Congress struck the balance between allowing -- giving unprecedented protection that this Court recognized in "Park 'n Fly" to descriptive terms, but policing the line between the secondary meaning that attaches to descriptive terms and the -- reserving for the marketplace, for competition, the availability of descriptive terms in their original descriptive sense.
03-409 +++$+++ 6829 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In other words, if you choose to use a descriptive term as your logo, you take your chances --
03-409 +++$+++ 6830 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly.
03-409 +++$+++ 6831 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that that descriptive term will be used fairly and in good faith by somebody else and cause confusion.
03-409 +++$+++ 6832 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly.
03-409 +++$+++ 6833 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if you don't want confusion, pick a term that isn't descriptive.
03-409 +++$+++ 6834 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right. There's a tradeoff. When you pick a descriptive term, you get right up front, right up front, the immediate appeal and resonance of a term to the -- to the consumers. "Best buy." Who wouldn't want the best buy? I want the best buy. "Chunky" candy bars. It's going to be easier to break into the marketplace with "Chunky" candy bars or "Almond Joy" candy bars, because consumers will have a sense of what they're getting, than if you come in with a --
03-409 +++$+++ 6835 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ "Schwartz," "Schwartz" candy bars.
03-409 +++$+++ 6836 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ "Schwartz" candy bar, "Kodak," I don't know
03-409 +++$+++ 6837 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It doesn't do anything for you. [Laughter.]
03-409 +++$+++ 6838 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know why that is, and why would I want to eat it. They're going to have to do more work. But the downside, the tradeoff, is, as you said, Justice Scalia, that you do not get to take those terms out of usage. Trademark law protects usage, not words. And if the usage is descriptive, and it's fair, in the sense that it's reasonable, apt, and accurate, as this Court said in William Warner, Canal Company, Howe Scale, in the unfair-competition sense; and the Kellogg versus National Biscuit Company, the Shredded Wheat case, if it's apt and accurate, that's what "used fairly" means. And if its satisfies that objective test, and if it satisfies the subjective good-faith test, and it's not used as a mark, we will tolerate that confusion, because that --
03-409 +++$+++ 6839 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How do you tell whether it's used as a mark? I mean, is that -- that certainly seems to be central. Is it used as a mark? And if it's used as a mark, then there is a violation.
03-409 +++$+++ 6840 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The fair-use defense is unavailable if it's used as a mark. There are other --
03-409 +++$+++ 6841 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
03-409 +++$+++ 6842 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- defenses that are available, but the fair-use defense is, by definition, unavailable. That's correct. The way you prove whether something is used as a mark -- there's, sort of, two ways of getting to that end. When something is used as a mark, that means it is signifying to the origin or source of those goods in the marketplace. It's not just describing it, it's telling you who is making it or who is putting it out on the market.
03-409 +++$+++ 6843 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So let's go back to the use on the brochure of a logo-like -- I mean, as long as they're using just the word "micro color," I see your position entirely, it's used descriptively, not as a mark. But what about when they use something that looks like a mark?
03-409 +++$+++ 6844 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there's -- there's going to be difficult questions of proof. Our position is that, by taking a descriptive term, you don't get to consign everybody else to ten point Times New Roman font, and that they can do some colorful display, but not a mark.
03-409 +++$+++ 6845 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Ms. Millett. Ms. Brinkmann, we'll hear from you.
03-409 +++$+++ 6847 +++$+++ FALSE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Defendant's - Petitioner's absolute defense is contrary to the text, purpose, structure and history of the fair-use defense of the Lanham Act. In response to Justice Scalia's question about this is the risk that someone takes when they choose a descriptive term, this defense does not apply only to descriptive terms. Under Petitioner's view, this defense would be available to users of arbitrary, fanciful and suggestive marks so long as they were used descriptively and not as a mark. Indeed, our mark here is not --
03-409 +++$+++ 6848 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How can you use a fanciful term descriptively? I mean, I think that's the definition of an arbitrary or fanciful term, that it doesn't mean anything.
03-409 +++$+++ 6849 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it may mean something in a different context, I think an example you could use would be the arbitrary trademark of "Apple" for computers. There could be advertising for Computer Electronics, Incorporated in the fall, when there's the back to school rush, using the term "Apple" in a descriptive sense: "Apples for Teachers," you know, the beginning of the year, "Come to our store." So, in reliance on that, you drive two hours because you're the school district director who needs to buy ten new computers to hook into the system. You get there, it turns out they're not Apple Computers.
03-409 +++$+++ 6850 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but do they use the apple as clearly a descriptive term with secondary meaning, that's what gives it protection. But if you have an arbitrary term, as Justice Scalia says, how could that be, how could the defense have any relevance to a fanciful or arbitrary term. And I thought the defense only was relevant when you -- everybody agrees you're talking about descriptive terms?
03-409 +++$+++ 6851 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, the Solicitor General does not take that position either, in their brief they recognize that this applies to all level of mark.
03-409 +++$+++ 6852 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but that, all we need to decide this case is to assume that it's descriptive.
03-409 +++$+++ 6853 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, the Ninth Circuit's holding was that it was inherently distinctive, or descriptive, and we maintain that it is suggestive, as was pointed out earlier, this isn't a word that can be found in the English language anywhere, it doesn't describe the pigment or the ink, what it does is suggests the small nature and the fine lines that are ultimately used when this is applied.
03-409 +++$+++ 6854 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's assume that it was descriptive, would the Ninth Circuit test still apply? That you would have to show absence of confusion before you raised the good faith defense?
03-409 +++$+++ 6855 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't believe that's what the Ninth Circuit test does, this was a summary judgment entered against us when we had introduced --
03-409 +++$+++ 6856 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, would you agree, then, that in a case where the mark is descriptive, the non trademark holder, the defendant in the case, can raise the fair-use defense without having to show that there's no confusion?
03-409 +++$+++ 6857 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, we believe it's the plaintiff's burden, it's clear it's the plaintiff's burden to show likelihood of confusion. The point is, under the district court's absolute rule, notwithstanding evidence in this case of actual confusion, indeed, summary judgment was entered against us because the district court took Petitioner's absolute view that there was no relevance whatsoever to likelihood of confusion to the determination of fair use, that's the rule in the Ninth Circuit overall, and that's what needs to be affirmed.
03-409 +++$+++ 6858 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, I'm confused. I thought the question you're supposed to answer, which is in the blue brief, is whether they have to show an absence of confusion. And I guess now you agree the answer to that question is "no." Is that right, you agree with that?
03-409 +++$+++ 6859 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-409 +++$+++ 6860 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, that's the end of this case, isn't it? That's what we took it to decide, and that's -- you agree with it and they agree with it, so everybody's happy. We don't even have to write an opinion, we can just --
03-409 +++$+++ 6861 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe the Petitioner came up with that formulation because they had taken on the burden because they were the movant on summary judgment. That's where that misnomer came from.
03-409 +++$+++ 6862 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did you object to the formulation of the question presented? Here's the question, "Does the classic fair-use defense to trademark infringement require the party asserting the defense to demonstrate an absence of likelihood of confusion?" That's the question. And you say, "no."
03-409 +++$+++ 6863 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We agree that the plaintiff, it's clear that under - in the Ninth Circuit - the Ninth Circuit pointed out that, Justice Ginsburg quoted before, made clear that the plaintiff does bear the burden of establishing likelihood of confusion.
03-409 +++$+++ 6864 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, suppose you establish it, maybe we can find some differences here, would you also agree that simply establishing confusion is not enough to overcome the fair-use defense, you'd have to also show that the confusion, along with possibly other things are such that it shows unfairness, or what's the other word, unfairness, or lack of good faith?
03-409 +++$+++ 6865 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We believe that when Congress --
03-409 +++$+++ 6866 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You agree with that, or not?
03-409 +++$+++ 6867 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, we agree that when Congress wrote the test in 1946, it used the terms "used fairly" to refer to the common law, which included not only the common law of technical trademark, but the common law of unfair competition.
03-409 +++$+++ 6868 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Good, so now we have something I can disagree with you about. Now, the question would be, why, it's the words are unfair, why, if you just show there's some confusion, which normally there would be, or quite often there would be, why is that enough to overcome their defense that they put here?
03-409 +++$+++ 6869 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the time that those words were used, the common law, and we respectfully disagree with the Solicitor General's office on the reading of Warner, we'd urge the Court to read that. The reason the Court allowed the use of the term in that case is because they quite clearly said it did not have a secondary meaning. There is no trademark protection for descriptive words with secondary meaning, we are in complete agreement with that. We're dealing with the secondary meaning.
03-409 +++$+++ 6870 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right, so now, if we're going to go back into what the Court did, I would say that I was a little disturbed reading this as to why you get protection at all, because I was thinking "micro color," well, that describes very well what it is, it's a tiny, teeny, weenie, weenie bit of color. And when I think of "micro pigment," I think of a farm animal, I think -- I don't know what I think, it's confusing me. So, for an average person, the word "micro color," I thought, "Gee, that's very descriptive of just what it is, a teeny weenie bit of color."
03-409 +++$+++ 6871 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I would urge you to look at joint appendix pages 137 to 139 where it lists twenty other competitors that sell this very product, they have no cause to use that word. It is not used in the industry as a descriptive term, they're called "pigment," they're called "ink," they're not called "micro colors," that is my client's trademark.
03-409 +++$+++ 6872 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's the difference between pigment and color, especially when it's not just "micro color," don't they advertise "micro color red," "micro color grey," so pigment --
03-409 +++$+++ 6873 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The typical suggestive term, it was created to associate the high quality that my client markets in this product with that term, I want the "micro color" pigments, not the other pigments that are sold by --
03-409 +++$+++ 6874 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, what about the word, is it -- am I wrong in what I suggested before, that the word, "micro pigmentation" is used in the trade as a synonym for permanent makeup?
03-409 +++$+++ 6875 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, and oftentimes, trademarks are shortened versions of other terminology. The fact is it is suggestive because "micro colors" is the protected trademark here.
03-409 +++$+++ 6876 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there is a sense of color in which color is synonymous with pigment. And I assume that's what was accepted here, which leads me to my question, I don't understand why we're having this discussion.
03-409 +++$+++ 6877 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Exactly.
03-409 +++$+++ 6878 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because I thought it was agreed that for purposes of the defense, this was a descriptive use, is that incorrect?
03-409 +++$+++ 6879 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, for purposes of the defense, it's the other party that has to be using the term differently.
03-409 +++$+++ 6880 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, could you just point to me -- I'm not asking so much about the "why," I just want to know what this case is. Is there someplace in the materials that we've got that indicate that, in fact, you dispute that there is a descriptive use here?
03-409 +++$+++ 6881 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, footnote 3 of the red brief explains that this purported concession that they discuss about the use of this mark had to do because Justice Ginsburg was distinguishing before, early uses on a bottle, and a flyer, which we dispute occurred, but assuming they occurred, those were descriptive. In 1998 and 1999, Petitioner started using this on their marketing brochures in a very different manner.
03-409 +++$+++ 6882 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Excuse me, this still goes to the merits of the defense and not to the question presented. The question presented is, descriptive or not descriptive, do you have a defense if it's, if there is consumer confusion? And your position, if you're opposing the question presented, is that if there is consumer confusion, there is no defense. And it's -- I thought that was the only question you were going to discuss here, not in fact whether, if there is such a defense, it has been made out in this case, because these words were or were not descriptive. I mean, that's a --
03-409 +++$+++ 6883 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Your Honor, I'd be happy to discuss that. As I pointed out, it's contrary to the textual language used by the Congress in 1946. They meant "used fairly" to mean what the common law meant. The common law prohibited confusing uses of both technical trademarks and trade names. Moreover, Petitioner's interpretation is contrary to the clear focus of the Lanham Act, which is to prevent customer confusion. The whole point is so that you can walk into a store --
03-409 +++$+++ 6884 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Brinkmann, may I stop you there, because I thought you have conceded, as I think you must, I thought you conceded quite clearly, I wrote down that you said, it is the plaintiff's burden to show likelihood of confusion. So, if it's the plaintiff's burden to show likelihood of confusion, how can it be the defendant's burden to show unlikelihood of confusion?
03-409 +++$+++ 6885 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't believe it's the defendant's burden, we believe we -- the district court was correctly reversed by the Ninth Circuit in entering summary judgment against us, notwithstanding the fact that there was dispute regarding likelihood of confusion. And the district court did that, because as I said it was absolutely irrelevant to the determination of used fairly.
03-409 +++$+++ 6886 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think this is really quite confusing, Ms. Brinkmann. The question presented, as several people have pointed out, whether the Lanham Act's fair-use defense to trademark infringement requires a party asserting the defense to demonstrate the absence of a likelihood of consumer confusion. Now, do you agree or disagree with that?
03-409 +++$+++ 6887 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We --
03-409 +++$+++ 6888 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You can surely answer that, "we agree," or "we don't agree."
03-409 +++$+++ 6889 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't agree. We believe that likelihood of confusion defeats the fair-use defense.
03-409 +++$+++ 6890 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay, okay.
03-409 +++$+++ 6891 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And we would point out that as a textual argument and the purpose argument --
03-409 +++$+++ 6892 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask, may I just interrupt, but when would one ever be able to use the defense if the plaintiff makes out a prima facie case, prima facie case, I assume, includes the burden of establishing likelihood of confusion. So, is there any room for the defense at all?
03-409 +++$+++ 6893 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As we point out in our brief, Your Honor, we do believe that since the amendment in 1988, this has ultimately become a redundancy, but the plaintiff's burden of showing likelihood of confusion --
03-409 +++$+++ 6894 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So the answer is no.
03-409 +++$+++ 6895 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It remains as a Congressional emphasis that even if, in a trademark situation, a use that is not likely to confuse is allowed. That is what, this was a --
03-409 +++$+++ 6896 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's allowed without the affirmative defense.
03-409 +++$+++ 6897 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To understand why this came in, it's important to understand in 1946 this defense applied only to incontestable marks. It did not apply to other registered marks. At that time, incontestable mark holders did not have to prove likelihood of confusion. That incontestable mark was a conclusive evidence of the mark holder's exclusive right to use that mark on the same goods. Same mark, on the same goods that were set forth in the affidavit with the PTO. That was akin to early common law. At that point, the plaintiff could go into court with their incontestable mark, and it was conclusive evidence. So there had to be a safety valve for defendants to be able to say, "Okay, I know this is an incontestable mark, I know that, and I know I'm using it on the same goods, but notwithstanding, I can use it because I'm using it fairly, I'm not confusing consumers with this. That's what the purpose was. In 19 --
03-409 +++$+++ 6898 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But are you suggesting, I want to be sure I follow your thinking, are you saying that in, back in those days, somebody with an incontestable mark did not have to prove likelihood of confusion?
03-409 +++$+++ 6899 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was presumed by the weight of that, that was the conclusive evidence.
03-409 +++$+++ 6900 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because otherwise, wouldn't that defeat the defense, too, then?
03-409 +++$+++ 6901 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the way Congress structured 1115(b), it was conclusive evidence except subject to the seven specific defenses, this was the fourth one.
03-409 +++$+++ 6902 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but you're saying, isn't your answer to Justice Stevens is that it was a rebuttable presumption?
03-409 +++$+++ 6903 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-409 +++$+++ 6904 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
03-409 +++$+++ 6905 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I'm sorry, yes. Yes, Your Honor. I would also point out that when Congress amended in 1988, there's absolutely no evidence whatsoever that they intended to change this and that's what's so fundamental about the position - the district court position. This is a gaping hole in the core purpose of the Lanham Act.
03-409 +++$+++ 6906 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But suppose IBM had used the word "computers" when they were the only company for ten or fifteen years to mark their product. Now, another company comes along and they produce the same thing, they want to use the word "computer." You're saying that that would be the end of it, they couldn't do it?
03-409 +++$+++ 6907 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not at all, Your Honor.
03-409 +++$+++ 6908 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ People would be confused. For a while they'll think that "computer" refers to IBM, there would be confusion, but it's the best word to describe the product, in fact, at least a very good one.
03-409 +++$+++ 6909 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if that were the case, it was more than likely, almost certainly be a generic term with no protection.
03-409 +++$+++ 6910 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, at the very beginning, IBM was the only one to do it, they didn't have to call it computer, they could have called it a word processor, they could have called it a "think faster." I don't know what they could have called it, but I mean, you know, they chose the word computer.
03-409 +++$+++ 6911 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And Congress took that explicitly into account when it allowed any mark to be canceled at any time for genericism. Escalator, aspirin are all examples of your situation. That's exactly what happened, and when they came a generic term, that trademark was canceled and it became used as generic. Congress took that into account.
03-409 +++$+++ 6912 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So what is this fair-use defense for, since you're normally going to show confusion to show the infringement, what's it for, in your opinion?
03-409 +++$+++ 6913 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Since 1988 it's a vestigial reminder of what Congress wanted to make sure was understood in 1946. Even for the strongest, incontestable mark on the same goods, we are still going to always allow uses that are not likely to confuse.
03-409 +++$+++ 6914 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But we don't usually interpret statutes that way. I mean, you tell us what Congress had in mind, but our best indication of what Congress had in mind is the words of the statute. And the words of the statute make no sense if they say you have to prove confusion and the only -- however, there's a special defense which you have, which turns out to be there's no confusion, that's not a special defense.
03-409 +++$+++ 6915 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Two points, Your Honor --
03-409 +++$+++ 6916 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Makes it a meaningless statute, really.
03-409 +++$+++ 6917 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Two points. Petitioner gives no meaning to words "used fairly." So if a worst statutory construction --
03-409 +++$+++ 6918 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought they did when they outlined to us what it means is you're using it descriptively, and not as a mark.
03-409 +++$+++ 6919 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, those are other terms that are used in the statute, those are separate requirements. There are four requirements in the provision, used not as a mark, used descriptively, used in good faith, and used fairly. They read "used fairly" right out of the language.
03-409 +++$+++ 6920 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Brinkmann, am I right that several cases say, the key here is, are you using it as a mark. Because that suggests you're trying to pawn off your goods as another's. Are you using it as a mark? Or, are you using it, merely descriptively? I thought use as a mark was the key, you're using it as a mark, you're not using it in good faith.
03-409 +++$+++ 6921 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, that is one of the factors in likelihood of confusion, that you can take into account, that there can be non-trademark uses that are confusing, but the common law cases we talk about are full of examples of that. I would like to make one other response to Justice Scalia's point, if I could. Justice Scalia, to the extent that you hold that the fair-use defense no longer prohibits, all uses are likely to confuse as unfair, we would look to the suggestion made by the amici that there is a middle ground that likely to confusion, in any event, cannot be completely irrelevant to the used fairly determination, as Petitioner in the district court would have it. We discuss on page 15 of our brief, for example, the Restatement's position, which we would urge the Court to look to, which is akin to what the amici suggests.
03-409 +++$+++ 6922 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That may well be, but I don't think that's the question presented here. I mean, we could agree with that, that it's relevant to deciding the defense, and still answer the question presented the way that the Petitioner wants.
03-409 +++$+++ 6923 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The district court's entry of summary judgment must be reversed, the Ninth Circuit did that because of its total disregard for likely to confusion --
03-409 +++$+++ 6924 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that may be, but the issue here is whether the Ninth Circuit simply went too far in the other direction and required too much. And all we have to determine is whether there is a per se obligation to prove non-confusion. If we do so, that doesn't necessarily reinstate the district court's position, it simply says that the Ninth Circuit went too far, isn't that correct? I mean, that is what is -- that is the issue before us?
03-409 +++$+++ 6925 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the ruling from this Court would have to be that it's not an absolute defense against likelihood of confusion.
03-409 +++$+++ 6926 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How about if the ruling were a defendant who uses a descriptive term fairly and in good faith to describe its goods or services is not liable for infringement, even if some residual confusion is likely. That's what the Restatement that you've just been applauding says.
03-409 +++$+++ 6927 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, and that discussion explains a couple of things. It explains that if there is a likelihood of substantial confusion, that would be the outer limit, ordinarily that would not be a fair use. It also points out that likelihood of confusion is relevant to that determination that Your Honor just described. Yes, we would win under that position, Your Honor, that's absolutely correct, that's the middle ground of the Restatement --
03-409 +++$+++ 6928 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you would win --
03-409 +++$+++ 6929 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You'd still have to vacate the judgment below, which seemed to go too far in saying that if there is any consumer confusion, that's the end of it.
03-409 +++$+++ 6930 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, we would actually urge the Court to affirm the judgment below, in support of we cite cases in our brief, the Meritor case and the Yakima case, in which the judgment of the Ninth Circuit reversing the district court should be affirmed, and there are other holdings of the Ninth Circuit also that are not before the Court that should be affirmed.
03-409 +++$+++ 6931 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you're urging then that the Ninth Circuit be affirmed on alternate grounds.
03-409 +++$+++ 6932 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, that's --
03-409 +++$+++ 6933 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We rarely do that.
03-409 +++$+++ 6934 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, I understand that, but in this particular situation --
03-409 +++$+++ 6935 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why wouldn't we just vacate it, and you have other grounds that the court below didn't address, but why wouldn't, at the very least, we vacate the judgment and send it back?
03-409 +++$+++ 6936 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We certainly would agree, Your Honor, that if we are then given an opportunity on remand to go back to summary judgment and carry our burden of establishing a likelihood of confusion, but not have it held against us. For example, in the middle ground, to determine what used fairly is, in addition to likelihood of confusion, we would suggest that there are other factors that the Restatement puts forth. For example, whether there is commercial justification for the use. Did we point out, there is no commercial justification, there are twenty other competitors that don't use this terminology.
03-409 +++$+++ 6937 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They might have been afraid that you'd sue them.
03-409 +++$+++ 6938 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's quite a strong mark, Your Honor.
03-409 +++$+++ 6939 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Brinkmann, am I right that they were, "they" being KP, they were in fact using the word "micro color" before you registered your trademark?
03-409 +++$+++ 6940 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, we dispute that, Your Honor, they've never produced one bottle from that period. In fact, we introduced four bottles of their --
03-409 +++$+++ 6941 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that would be -- that would be a disputed issue of fact.
03-409 +++$+++ 6942 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
03-409 +++$+++ 6943 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And are we making any differentiation at all between the mini color red or whatever, and this logo that appears?
03-409 +++$+++ 6944 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, all the difference in the world, Your Honor. We maintain that that is a mark use. I mean, the district court rejected that as well, but that is one of the issues where you suggested that courts have resolved these on whether something is used as a mark or not, that is not an easy answer, and that is why it's always part and parcel of the likelihood of confusion. That's the purpose of the Lanham Act, to ensure that when you go into a store, you can buy the products you want. For example, in the health and safety area here, you may be willing to buy a product that costs more money because you know of the quality of them. At the same time, you want to be assured when you go in, because you don't want to buy the one that's recalled all the time, or that has ingredients that cause allergies for you, that's what the Lanham Act is to protect. And it encourages the economic efficiency of the market --
03-409 +++$+++ 6945 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your customers are pretty sophisticated people, I guess, they're specialists in an unusual trade, so they're not just like a person walking off the street that doesn't know what it is, they probably know this market pretty well.
03-409 +++$+++ 6946 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's directly relevant to the likelihood of confusion, Your Honor. In fact, the typical way of proving that when it ultimately goes to trial is through consumer survey. And the law is clear that that survey would not be of the person on the street, it would be of the appropriate purchasers, who are more sophisticated clinicians and cosmetologists. But, Your Honor, even on that situation in this record, we have direct evidence of confusion. It's at joint appendix page 170, Your Honor, it's the declaration of Gloria Torres, where about 1998, 1999, she was one of the people who did sales, and she started getting calls from people wanting products, and it confused her because they weren't on my client's customer list, and also they were citing different prices. It didn't mean anything to her at the time, it turns out this was the confusion because they were actually seeing this new usage on the marketing brochure by KP Permanent.
03-409 +++$+++ 6947 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Just out of curiosity, it has nothing to do with the case, do they market this product with color charts, just like paint companies do?
03-409 +++$+++ 6948 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They do, Your Honor, that's absolutely right, color wheels, color -- and also in the micro pigmentation history, it's very important, because even though it's like tattooing, the purpose is absolutely the opposite, it's to hide the color. So mixing of the colors is a critical component of that industry. I want to make another point about the economic efficiency that is furthered by the trademark laws and not allowing likelihood of confusing uses, which is what Congress intended. By allowing purchasers to know that they're getting the product that they want, they're a lot, able to be more efficient in the market --
03-409 +++$+++ 6949 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I also -- it's very efficient to allow people to communicate, in English.
03-409 +++$+++ 6950 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, there's nothing to prevent that.
03-409 +++$+++ 6951 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I guess that's the question, because sometimes people -- I have no doubt --
03-409 +++$+++ 6952 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I don't think there's anything -- the way that Petitioner passed the Lanham Act grossly overstates it. I mean, I would just submit the following list. The only thing that the Lanham -- the Lanham Act does not allow registration of generic brands, as we mentioned before. It allows cancellation of any mark if it becomes generic. It applies only to commercial uses, not usage in ordinary English language, only in connection with the mark. It can only have a valid trademark when it's actively being used, any mark can be canceled or abandoned after three years. It also, of course, only applies when there's likelihood of confusion. Also there is an expert agency that reviews and goes through a process in which there can be oppositions, objections, all of this could be brought up at that point. And also Congress directly addressed anticompetitive interests when it enacted the statute. It, in 1946, enacted B(7) as a defense for antitrust violations. It also reinforced the Justice Department, and the FTC maintains its enforcement authority, and it also had a particular provision that allowed the FTC to go in and cancel registration. I'd also point out --
03-409 +++$+++ 6953 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What would be a really expert agency, which you referred to as represented by the government here, and it takes the position quite different from yours.
03-409 +++$+++ 6954 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At this point in time, Your Honor. I would also point out economic efficiency --
03-409 +++$+++ 6955 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You say at this point in time? Are you suggesting that it took a different position some other time?
03-409 +++$+++ 6956 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, in this case, it -- this mark has been put through becoming to -- but went through all of the procedures that the PTO required. There's no question that this is a valid mark.
03-409 +++$+++ 6957 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They're not assailing the validity of the mark.
03-409 +++$+++ 6958 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Nobody is challenging it, it's the fair-use defense.
03-409 +++$+++ 6959 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, no, what I -- the government's position is the same position that, in fact, it urged before Congress in 1946. The Court's opinion in Park 'n Fly makes this clear. They did not want descriptive terms at all protected, even with secondary meaning. And as the Park 'n Fly opinion makes clear, Congress rejected that and struck the balance this way and included all of these other safeguards, not allowing registration of generic marks, always prohibiting uses that are likely to confuse. We would also point out that that encourages economic efficiencies for businesses as well. By being able to benefit from the reputation of your mark, the business invests more. As soon as confusion is allowed, there is a free rider problem, and that competitor is free riding on that investment. And it's a disincentive for further investment and it undermines the quality of the goods, because the only way --
03-409 +++$+++ 6960 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Certainly the Restatement and the view of some of the amici is contrary to yours on this.
03-409 +++$+++ 6961 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We believe that the Restatement and the amici are very consistent in rejecting Petitioner's position and the district court's position that likelihood of confusion is completely irrelevant. We embrace that, I think that's a consistent position, and that would be the bottom line, I would urge, on this Court, because Petitioner's position in the district court wreaks havoc, truly, with the statutory framework that Congress set up and intended. We believe as a matter of strict statutory construction, that indeed it is now a vestigial provision, the fair-use defense, after the 1988 changes to the inconstestability provision. But if the Court is not going to hold that that fair-use defense prohibits uses that are likely to confuse, we would urge the Court to adopt the Restatement position, that the totality of the circumstances, likelihood of confusion is relevant, we think factors that it's confusing in relationship to a health and safety issue would be relevant, the investment by the mark holder could be relevant. And to the extent the competitor had a commercial justification for it, because it was a term that everyone needed to use, but "micro colors" is just not that kind of terminology as the record in this case demonstrates. If there are no further questions, Your Honor.
03-409 +++$+++ 6962 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Brinkmann. Mr. Machat, you have three minutes remaining.
03-409 +++$+++ 6964 +++$+++ FALSE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. I'd like to point out that Ms. Brinkmann's reference to the legislative history is incorrect, and I'd just like to refer the Court's attention to my reply brief, pages 14 to 17 where basically it shows that prior to 1988, courts were required to find a likelihood of confusion before finding for the plaintiff on a trademark case. I'd also like to point out that in this particular case, the trademark is not for the word "micro color," the trademark is for the logo mark, and here's some of the confusion. The Respondents were able to obtain a trademark registration for the logo itself, and the strength in the logo itself is not being copied, we're just using the descriptive words within the logo itself. And Congress always intended for descriptive words to be free for everybody to use in their primary descriptive sense, so long as the person, the subsequent user, is not using those descriptive words in the secondary meaning sense, and that's the distinction. The confusion is only an issue to determine whether or not the elements of the fair-use defense is being met, but that confusion should be distinguished from likelihood of confusion. Confusion is a factual determination, likelihood of confusion is a legal determination. So you can use whether or not there is actual confusion to determine whether or not the mark, sorry, the word is being used as a mark.
03-409 +++$+++ 6965 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I forget your position, if you've taken it, do you agree that the degree of confusion that is predictable or that is likely is one of the elements that can be used to determine whether the use is a fair one? Do you agree or disagree with that?
03-409 +++$+++ 6966 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would agree, the degree of confusion, but that comes into whether or not --
03-409 +++$+++ 6967 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right, that's all I wanted to know.
03-409 +++$+++ 6968 +++$+++ TRUE +++$+++ MR. MACHAT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this case, "used fairly" means, it does mean something, we're saying used fairly refers to whether or not the use is a truthful or reasonably accurate description of the mark. And it always -- truthful is something that the common law always looked at to see, that was a term used, in fact, by this Court in the Warner decision, basically, to quote briefly from that decision, it said "the use of a similar name by another to truthfully describe the same product does not constitute a legal or moral wrong." So I would maintain that "used fairly" means truthful, or can determine whether or not it's exactly true, reasonably accurate. And that would be the meaning of "used fairly." And of course, good faith refers to the intent, and there you have the elements of the fair-use defense. Also, I'd just like to point out once again the Ninth Circuit opinion, it says on the bottom of page 17a, it says, "KP can only benefit from the fair-use defense if there is no likelihood of confusion between KP's use of the term `micro color', and Lasting's mark." And then they go on to say, "as discussed above, because in this case they can be no fair use --"
03-409 +++$+++ 6969 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Machat, the case is submitted.
03-633 +++$+++ 6973 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument now in No. 03-633, Donald Roper v. Christopher Simmons. Mr. Layton.
03-633 +++$+++ 6975 +++$+++ FALSE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Though bound by Stanford v. Kentucky, the Missouri Supreme Court rejected both its holding and its rationale. This Court should stay the course it set in Stanford, leaving in the hands of legislators a determination as to the precise minimum age for capital punishment within the realm of Thompson v. Oklahoma, and leaving to jurors responsibility for determining the culpability of individual defendants above that minimum age. The Missouri court justified its departure from Stanford on Atkins v. Virginia, but the result it reached is quite different from the result in Stanford. In that -- excuse me -- in Atkins. In that case, the Court was addressing mental ability, itself a component of culpability. The Court announced a principle based on that characteristic, that is, that the mentally retarded are not to be eligible for capital punishment, but then it left to the States the determination of the standard and the means of implementing that principle. The Missouri Supreme Court, by contrast, jumped beyond the question of maturity, which is an element of culpability analysis, to the arbitrary distinction of age. It drew a line based purely on age, which is necessarily over-inclusive, and then it gave that line constitutional status, thus depriving legislators and juries of the ability to evaluate the maturity of 17-year-old defenders.
03-633 +++$+++ 6976 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, we didn't leave it up to the States entirely. I mean, you -- you mean the States could adopt any definition of mental retardation they want?
03-633 +++$+++ 6977 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The States certainly --
03-633 +++$+++ 6978 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So there's -- there's some minimal level of mental retardation. Right?
03-633 +++$+++ 6979 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is some minimal level.
03-633 +++$+++ 6980 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And isn't that necessarily over-inclusive, just as picking any single age is necessarily over-inclusive?
03-633 +++$+++ 6981 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
03-633 +++$+++ 6982 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Surely there will be some people who -- who, although they have that level of mental retardation, with regard to the particular crime in question, are deserving of the death penalty.
03-633 +++$+++ 6983 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I don't agree that it would be over-inclusive, given the Court's analysis in Atkins. The Court said that someone who has that level of mental retardation is simply not sufficiently culpable by definition. That certainly would not be true here. There are 17-year-olds who are equally culpable with those who are 18, 20, 25, or some other age.
03-633 +++$+++ 6984 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the age 18 is set even for such things as buying tobacco. The -- the dividing line between people who are members of the community, the adult community, is pervasively 18, to vote, to sit on juries, to serve in the military. Why should it be that someone is death-eligible under the age of 18 but not eligible to be an adult member of the community?
03-633 +++$+++ 6985 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that legislators would be surprised, when they adopted those statutes, that they were affecting their criminal law. In fact, many of those statutes have individualized determinations, the military being one of them. 17-year-olds can enlist. There is an individualized determination, albeit by parents, not the Government. 17-year-olds may be serving in Iraq today. That -- the other kinds of examples that you cite, for example, tobacco --
03-633 +++$+++ 6986 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But with parental -- they are wards of their parents.
03-633 +++$+++ 6987 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-633 +++$+++ 6988 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So their parents -- the same thing with marriage. A 17-year-old can marry but not without parental consent.
03-633 +++$+++ 6989 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Although in most instances can marry if they go to a court and demonstrate they are sufficiently mature, again contemplating individualized determination, which the Missouri Supreme Court says does not exist as to 17-year-olds with regard to capital punishment.
03-633 +++$+++ 6990 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why pick -- why pick on the death penalty? I mean, if you're going to say that somehow people under 18 are juveniles for all purposes, why -- why just pick on the death penalty? Why -- why not say they're immune from any criminal penalty?
03-633 +++$+++ 6991 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I must assume that if we -- if the Court says they are immune from the -- from capital punishment that someone will come and say they also must be immune from, for example, life without parole.
03-633 +++$+++ 6992 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm sure that -- I'm sure that would follow. I -- I don't see where there's a logical line.
03-633 +++$+++ 6993 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The -- the problem with adopting the -- the 18-year-old line is that it is essentially arbitrary. It's the kind of line that legislators and not courts adopt.
03-633 +++$+++ 6994 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But didn't -- didn't we adopt a 16-year-old line in our earlier case?
03-633 +++$+++ 6995 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In -- in Thompson, the Court in a 4-1-4 decision struck a 15-year-old -- a 15-year-old execution, and the States have taken, including Missouri through its General Assembly, have taken that to mean that there is a 16-year-old line. And today, in fact, I think it's true that there is a consensus nationally with regard to the 16-year-old line, not because it has some biological or psychological magic, but because perhaps --
03-633 +++$+++ 6996 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but -- but there was -- it's about the same consensus that existed in the retardation case.
03-633 +++$+++ 6997 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, that's true. If you look at the -- the --
03-633 +++$+++ 6998 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and so are we somehow required to at least look at that? I mean, the statistics of how many States have approved 18 years as the line is about the same as those in the retardation case.
03-633 +++$+++ 6999 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the Court has kind of three groups of cases with regard to the number of States. On one extreme, are Enmund and Coker where you have three and eight States. On the other extreme, are Penry and Stanford where you have 24 and 34 States. And then there's this middle group, which isn't just Atkins and this case. It's also Tison, which is also almost exactly the same number. The Court in Atkins had to find a way of distinguishing Tison, to the extent the Court relied on that -- that counting process, and the -- the Court concluded that there was kind of an inexorable trend with regard to the mentally retarded. We don't have that kind of trend here. In --
03-633 +++$+++ 7000 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, we -- we have a different kind of trend. What do you make -- you spoke of a consensus, but what do you make of the fact that over the last, I guess, 10- or 12-year period, the actual imposition of the death penalty for -- for those whose crimes were -- were under 18 has -- has steadily been dropping. I think 10 years ago, there were 13. Last year, I -- I think the figures were that there were two. The -- the consensus seems to be eroding, and yet as -- as the counsel on the other side pointed out, this has been occurring at a time when -- when treating juvenile crime seriously has not, in fact, been eroding at all. What -- what are we supposed to make of that?
03-633 +++$+++ 7001 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, two things. Number one is that capital sentences have been dropping for all ages, not just for those under 18. So it -- you have to take that into account. The second is that although the last --
03-633 +++$+++ 7002 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Has -- has the -- has the rate of attrition been the same?
03-633 +++$+++ 7003 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is --
03-633 +++$+++ 7004 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ 13 to 2 is pretty spectacular.
03-633 +++$+++ 7005 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is not --
03-633 +++$+++ 7006 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't think we've seen that, or maybe we have seen that, for -- for death imposition generally. Is that so?
03-633 +++$+++ 7007 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is certainly greater, but part of the problem is we're dealing with such small numbers for the -- the juveniles, those under 18, that the difference of one or two makes a huge difference in how the numbers come out. But if you look over the last 10 years, in fact, it has gone up and down and currently is in a down trend, but the down trend --
03-633 +++$+++ 7008 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it went up once I think, didn't it?
03-633 +++$+++ 7009 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it went up once within -- since -- since Stanford and then came back down. Now, whether this -- this period in which it comes back down is going to remain that way or whether we'll go back up to where we were 10 years ago I don't know. That's entirely hypothetical to suggest that -- that this very recent trend is more dispositive than the trends over the last 10 years.
03-633 +++$+++ 7010 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So -- so you're basically --
03-633 +++$+++ 7011 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're -- you're basically saying that the -- the time is too short, the numbers are too small --
03-633 +++$+++ 7012 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
03-633 +++$+++ 7013 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- to infer anything.
03-633 +++$+++ 7014 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, and the time is too short on the legislative side as well. We're only talking about the States that have adopted new legislation having done so, one of them in 1999 and the others simply in 2002 and 2004. If we were to look at the history of -- of capital punishment in the United States, there are many times when States have abolished capital punishment and then returned. And Justice --
03-633 +++$+++ 7015 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You -- you were in the midst of telling us why the -- there is a consensus now that it's inappropriate to execute anyone under 16, and I -- I -- you weren't --
03-633 +++$+++ 7016 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. It --
03-633 +++$+++ 7017 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You couldn't finish that answer. I want to know it.
03-633 +++$+++ 7018 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Since -- since Stanford, we have had no executions under 16 even though it is possible to read Justice O'Connor's opinion in that case as allowing a State to adopt a statute that specifically says 15. No one has tried that. Everyone seems to have taken Thompson and Stanford together to mean there is a 16-year-old line. Two States have adopted 16 by statute.
03-633 +++$+++ 7019 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And -- and so you say there's -- there's not so much as a consensus as an understanding of what that decision means.
03-633 +++$+++ 7020 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I think that that's right. There are States that have adopted it specifically and others have simply implemented it. If I were a prosecutor today, I -- it's hard to imagine that I would -- even in a State where I could find a statute saying I could prosecute someone under age 16, that I would try such a thing.
03-633 +++$+++ 7021 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let -- let me ask you this. I -- I don't yet have the -- the record showing the full closing argument of -- of both sides, but we do have the portion where the prosecutor says, isn't this scary? Can adolescence ever be anything but mitigating?
03-633 +++$+++ 7022 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I don't know how it could be anything but mitigating. But what we have in that --
03-633 +++$+++ 7023 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that's not how the prosecution presented it to the jury.
03-633 +++$+++ 7024 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In that statement, but --
03-633 +++$+++ 7025 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ He said -- he -- he almost made it aggravating. Isn't that scary? I don't have the -- I don't have the full argument.
03-633 +++$+++ 7026 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. What -- what he's facing is -- is 18 pages of transcript that occupied the -- the defense counsel's argument. Of those 18 pages, 4 pages are dedicated purely to Mr. Simmons' youth, and throughout the rest of the argument, he uses terms to reinforce that. He refers to him repeatedly as a 17-year-old. He calls him a kid. He does things to reinforce with the jury that he's very young. So then we come back and in a few pages of rebuttal, we have a couple of words -- I shouldn't say that -- two sentences in which the prosecutor is trying to respond to that particular lengthy theme and argument.
03-633 +++$+++ 7027 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It was pretty clear. The -- the words in question were: Think about age. 17 years old. Isn't that scary? Doesn't that scare you? Mitigating? Quite the contrary I submit. Quite the contrary.
03-633 +++$+++ 7028 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And if we were here because Mr. Simmons said that was improper and the Missouri Supreme Court said that was improper, well, we wouldn't be here. We wouldn't have asked for certiorari. The Court wouldn't have granted it.
03-633 +++$+++ 7029 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the question is, can -- is -- is age, youth inevitably mitigating, and here is a prosecutor giving the answer no, it can be aggravating.
03-633 +++$+++ 7030 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Missouri statute requires that an instruction be given that says that age is a mitigator, and the -- the instruction was given here. And the jury heard argument concerning that particular claim.
03-633 +++$+++ 7031 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what's -- what's the --
03-633 +++$+++ 7032 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's somewhat --
03-633 +++$+++ 7033 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is the contrary of -- of mitigating? I -- I would assume --
03-633 +++$+++ 7034 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Aggravating, but aggravating --
03-633 +++$+++ 7035 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it? I -- I would assume it's not mitigating.
03-633 +++$+++ 7036 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you're right, Your Honor, because --
03-633 +++$+++ 7037 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Maybe the opposite of mitigating is aggravating, but it -- it's perfectly good English to say, mitigating? Quite the contrary --
03-633 +++$+++ 7038 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is --
03-633 +++$+++ 7039 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's not at all mitigating.
03-633 +++$+++ 7040 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. And -- and --
03-633 +++$+++ 7041 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So I don't know why you give that one away.
03-633 +++$+++ 7042 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly aggravating circumstances are defined in the Missouri statute, and they were defined in the instructions. So this was not to be considered by the jury as an aggravator.
03-633 +++$+++ 7043 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let -- let's focus on the word unusual. Forget cruel for the moment, although they're both obviously involved. We've seen very substantial demonstration that world opinion is -- is against this, at least as interpreted by the leaders of the European Union. Does that have a bearing on what's unusual? Suppose it were shown that the United States were one of the very, very few countries that executed juveniles, and that's true. Does that have a bearing on whether or not it's unusual?
03-633 +++$+++ 7044 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No more than if we were one of the very few countries that didn't do this. It would bear on the question of unusual. The decision as to the Eighth Amendment should not be based on what happens in the rest of the world. It needs to be based on the mores of -- of American society.
03-633 +++$+++ 7045 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Have the countries of the European Union abolished the death penalty by popular vote?
03-633 +++$+++ 7046 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know how they've done that, Your Honor.
03-633 +++$+++ 7047 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought they did it by reason of a judgment of a court --
03-633 +++$+++ 7048 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in fact --
03-633 +++$+++ 7049 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- which required all of them to abolish it.
03-633 +++$+++ 7050 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I believe that --
03-633 +++$+++ 7051 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I thought that some of the public opinion polls in -- in a number of the countries support the death penalty.
03-633 +++$+++ 7052 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that there are countries in Europe who abolish it because of their membership in the European Union --
03-633 +++$+++ 7053 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I -- I acknowledged that in -- in my question. I recognize it is the leadership in many of these countries that objects to it. But let us -- let us assume that it's an accepted practice in most countries of the world not to execute a juvenile for moral reasons. That has no bearing on whether or not what we're doing is unusual?
03-633 +++$+++ 7054 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I can't concede that it does because it's unimaginable to me that we would be willing to accept the alternative, the flip side of that argument. It does seem to me, however, that that goes to a particular -- back to the aspect where I began --
03-633 +++$+++ 7055 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is there -- is there any on -- on that? Is there any indication? I mean, I've never seen any either way, to tell you the truth, but -- that Madison or Jefferson or whoever, when they were writing the Constitution, would have thought what happened elsewhere, let's say, in Britain or in the British -- they were a British colony. They did think Blackstone was relevant. Did any -- that they would have thought it was totally irrelevant what happened elsewhere in the world to the word unusual. Is there any indication in any debate or any of the ratification conventions?
03-633 +++$+++ 7056 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Nothing that I have seen has suggested that --
03-633 +++$+++ 7057 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So if Lincoln --
03-633 +++$+++ 7058 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- one way or the other.
03-633 +++$+++ 7059 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- Abraham Lincoln used to study Blackstone and I think he thought that the Founding Fathers studied Blackstone, and all that happened in England was relevant, is there some special reason why what happens abroad would not be relevant here? Relevant.
03-633 +++$+++ 7060 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's a --
03-633 +++$+++ 7061 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm not saying controlling.
03-633 +++$+++ 7062 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's a special reason why Blackstone would be relevant because that was the law from which they were operating when they put this language into the Constitution.
03-633 +++$+++ 7063 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Absolutely, and they, I guess, were looking at English practices, and would they have thought it was wrong to look abroad as a relevant feature?
03-633 +++$+++ 7064 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and I don't know the answer to that, Your Honor.
03-633 +++$+++ 7065 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do we -- do we ever take the position that what we do here should influence what people think elsewhere?
03-633 +++$+++ 7066 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I have not seen that overtly in any of the Court's opinions, Your Honor.
03-633 +++$+++ 7067 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You -- you think --
03-633 +++$+++ 7068 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You -- you thought that Mr. Jefferson thought that what we did here had no bearing on the rest of the world?
03-633 +++$+++ 7069 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, I -- I think Mr. Jefferson thought that. I think many of the Founders thought that they were leading the world, and I have no objection to us leading the world, but Mr. Jefferson's lead of the world was through the legislature not through the courts.
03-633 +++$+++ 7070 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But did he not also say that to -- to lead the world, we would have to show a decent respect for the opinions of mankind?
03-633 +++$+++ 7071 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that may well be.
03-633 +++$+++ 7072 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What did John Adams think of the French? (Laughter.)
03-633 +++$+++ 7073 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I read a biography of John Adams recently. I recall that he didn't think highly of them. (Laughter.)
03-633 +++$+++ 7074 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- Missouri, in order to implement the principle that those who are immature should not be subject to capital punishment, has adopted an approach that, first off, excludes anyone age 16 and under from capital punishment; second, requires certification by the juvenile court for anyone who is 16, but otherwise turns the matter over to the jury and defines it as a statutory mitigator. The kind of evidence that is discussed in Mr. Simmons' brief at some length could have been applied -- could have been presented during the penalty phase of Mr. Simmons' trial. It has been reflected in decisions of this Court as far back as Eddings where there was evidence of mental and emotional development. In Penry, there was evidence of mental age and social maturity. And here, in the post-conviction proceeding, Mr. Simmons presented such evidence regarding his impulsivity, his susceptibility to peer pressure, and his immaturity. But he didn't present that at trial. There is a mechanism in Missouri for him to do that and he chose not to.
03-633 +++$+++ 7075 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Before you go off on this, the one statistic that interested me -- and I'd like you to discuss its relevance really -- is if we look back 10 years, I have only three States executing a juvenile: Texas, 11; Virginia, 3; and Oklahoma, 2.
03-633 +++$+++ 7076 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
03-633 +++$+++ 7077 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And those three States account for about 11 percent of the population of the country, 11.3 percent. Now, if we go back a few more years to Stanford, we get three others in there: Louisiana, 1; Georgia, 1; and Missouri, 1.
03-633 +++$+++ 7078 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And if you go to the convictions rather than the executions, then Alabama goes into that mix.
03-633 +++$+++ 7079 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We have a very different number.
03-633 +++$+++ 7080 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
03-633 +++$+++ 7081 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So the reason that I thought arguably it's more relevant to look at the convictions is there are a lot of States. Say, New Hampshire, I think, for example -- when I was in the First Circuit, there were several States that on the books permitted the death penalty, but nobody ever had ever been executed. And -- and that's true across the country. There are a number of States like that. So if we look at the States that actually execute people, it's 10 years, say, 11 percent of the population are in such States. You go back 15 years, and you get these three other States, which raises the percentage. How -- how should I understand that? I'm interested in both sides --
03-633 +++$+++ 7082 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Frankly, we don't know what those numbers mean because we don't know to what extent juveniles are committing capital level murders. We -- and there is no way in current social science to make that determination. It's interesting that among the three States -- two of the three States that are on that list that Justice Breyer mentioned are States in which there is a specific instruction to the jury, or indeed, in Texas, a requirement, that the jury evaluate future dangerousness. That is, the argument that was referred to by opposing -- or that counsel made, the State's counsel made, the prosecutor made, in the -- in the trial here, there's actually an instruction in some of those States. And that may play into the manner in which this -- those States -- the reason those States have additional convictions and additional executions. But Missouri doesn't have that. We don't require that the jury find future dangerousness, and although that may come up in the course of a mitigation and aggravation argument in the penalty phase, it isn't highlighted like it is in those States. And that may be more problematic than the system that Missouri has created. If the kind of evidence, psychosocial evidence, that is cited in Mr. Simmons' brief had been presented at the penalty phase, of course there would have been an opportunity to rebut it, to question it. Instead, what we have in this case is the marshaling of untested evidence from various cause groups and some dispassionate observers.
03-633 +++$+++ 7083 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ At what point was this inserted into the record, Mr. Layton?
03-633 +++$+++ 7084 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the kind of -- well, as to Mr. Simmons specifically, it came in in the post conviction proceeding, and then was also present in the habeas record. In this case, the -- the lengthy litany of scientific studies appeared for the first time in his brief in this Court. There were references to a few of them before, but nothing --
03-633 +++$+++ 7085 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It was never -- never tested in the trial court.
03-633 +++$+++ 7086 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, no. Oh, no, because he never made the argument in the trial court during his trial that -- that scientifically he was too immature to be culpable to the degree that would merit capital punishment.
03-633 +++$+++ 7087 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, at least to the extent that he's simply quoting public sources, you had a chance to quote public sources in -- in return.
03-633 +++$+++ 7088 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
03-633 +++$+++ 7089 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So I think you're -- you're even on that --
03-633 +++$+++ 7090 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
03-633 +++$+++ 7091 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- or at least your opportunity is.
03-633 +++$+++ 7092 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- and I think the reason that we did that and we cited the difficulties in our reply brief with what he cited is to highlight that the precise age is a legislative question based on legislative type facts. Legislatures can evaluate this series of studies and then pick what is essentially an arbitrary age. There is no study in anything that Mr. Simmons cites that -- that justifies that particular day, 18. They talk about adolescence. They talk about young adolescence, old adolescence. They talk about adolescence continuing until the mid-20's. Nothing justifies the age of 18. That makes it the kind of fact that a legislature ought to be evaluating, not a court.
03-633 +++$+++ 7093 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does adolescence as a scientific term -- does it always occur on the same day for -- for all individuals?
03-633 +++$+++ 7094 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The -- the studies point out that adolescence is -- well, they don't agree on what adolescence means, and they don't -- and they point out that it begins and ends on different times for different people. So we don't know what adolescence means in the studies, and we don't know what it would mean were the Court to base a decision on the -- this concept of adolescence. I'd like to reserve the rest of my time, if there are no other questions.
03-633 +++$+++ 7095 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Very well, Mr. Layton. Mr. Waxman, we'll hear from you.
03-633 +++$+++ 7097 +++$+++ FALSE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Everyone agrees that there is some age below which juveniles can't be subjected to the death penalty. The question here is where our society's evolving standards of decency now draw that line. 15 years ago, this Court found insufficient evidence to justify a bright line at 18, but since Stanford, a consensus has evolved and new scientific evidence has emerged, and these developments change the constitutional calculus for much the same reasons the Court found compelling in Atkins. As was noted --
03-633 +++$+++ 7098 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can the constitutional calculus ever move in the other direction? I mean, once we hold that, you know, 16 is the age, if there's new scientific evidence that shows that some people are quite mature at 18 or at -- at 17-and-a-half or if -- if there is a -- a new feeling among the people that youthful murderers are, indeed, a serious problem and -- and deterrence is necessary, can we ever go back?
03-633 +++$+++ 7099 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there is a --
03-633 +++$+++ 7100 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's sort of a one-way ratchet. Isn't it?
03-633 +++$+++ 7101 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is a one-way ratchet here as there is whenever this Court draws a constitutional line; that is, whenever this Court determines that the Constitution preempts the ability of legislatures to make --
03-633 +++$+++ 7102 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but what -- what if a State legislature decides that, sure, the Supreme Court said in the Simmons case that you can't execute anybody under 18, but we think there's kind of a tendency the other way, we're going to pass a statute and see what happens in court?
03-633 +++$+++ 7103 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you could -- you could have, I guess, what I refer to as the Dickerson v. United States phenomenon. It could come up. But what's -- what's really interesting -- I think what's --
03-633 +++$+++ 7104 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it -- is that a closed book? I mean, granted, you may lose the argument, but is it a permissible argument that the standards have evolved the other way?
03-633 +++$+++ 7105 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it certainly would be a permissible -- permissible argument. What's -- what's notable here, Justice Scalia and Mr. Chief Justice, is how robust this consensus is. We're talking not only about the whole variety of ways in which our society has concluded that 18 is the bright line between childhood and adulthood and that 18 is the line below which we preserve -- presume immaturity. But the line with respect to executions, the trend is very robust and it is very deep.
03-633 +++$+++ 7106 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We don't -- we don't use 18 for everything. Aren't there States that -- that allow adolescents to drive at the age of 16?
03-633 +++$+++ 7107 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are nine States that allow adolescents to drive at the age of 16 without their parents' consent. That -- driving, of course, is the classic example, but --
03-633 +++$+++ 7108 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ With their parents' consent --
03-633 +++$+++ 7109 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
03-633 +++$+++ 7110 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ With their parents' consent, how many?
03-633 +++$+++ 7111 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To -- to -- there are 41 States that require parental consent below 18.
03-633 +++$+++ 7112 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they can drive.
03-633 +++$+++ 7113 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But they can drive if their parents agree. My -- my --
03-633 +++$+++ 7114 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If it's okay with the parents, it's okay with the State.
03-633 +++$+++ 7115 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My point here is that with respect to the death penalty, we have a substantial consensus within the United States, as it happens, exactly the same lineup as existed in -- as existed in -- was true in Atkins. We have not just a worldwide consensus that represents the better view in Europe. There are 194 countries --
03-633 +++$+++ 7116 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, how does one -- how does one determine what is the better view?
03-633 +++$+++ 7117 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I was -- I was referring to the implication that it has often been said that because the European Union thinks something, we should, therefore, presume that the world views it that way. We're now talking about --
03-633 +++$+++ 7118 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you suggesting that we adopt that principle?
03-633 +++$+++ 7119 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To the contrary. My point is we are not talking about just what a particular European treaty requires. We -- the -- the eight States that -- that theoretically -- that have statutes that theoretically permit execution of offenders under 18 are not only alone in this country, they are alone in the world. Every country in the world, including China and Nigeria and Saudi Arabia and the -- and the Democratic Republic of the Congo, every one has agreed formally and legislatively to renounce this punishment, and the only country besides the United States that has not is Somalia, which as this Court was reminded yesterday, has no organized government. It is incapable --
03-633 +++$+++ 7120 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They have a lot of customs that we don't have. They don't allow most -- almost all of them do not allow -- have trial by jury. Should we -- and they think it's not only more efficient, it is fairer because juries are, you know, unpredictable and whatnot. Should we yield to the views of the rest of the world?
03-633 +++$+++ 7121 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course not, but this is a -- this is a standard which -- a constitutional test that looks to evolving standards of moral decency that go to human dignity. And in that regard, it is -- it is notable that we are literally alone in the world even though 110 countries in the world permit capital punishment for one purpose -- for one crime or another, and yet every one -- every one formally renounces it for juvenile offenders. And, Justice Kennedy, my submission isn't that that that's set -- you know, game, set, and match. It's just relevant, and I think it is relevant in terms of the existence of a consensus. There was reference made by my opponent to the fact that there are four States that set the age at 17 and four States that set the age at 16. No -- in terms of movement, no one has suggested that any of those States or any other State has ever lowered the age. In fact, if you look at those particular -- those eight States, a number of them legislated an age that represented raising the number over what had previously been permitted. The movement, as this Court addressed, talked about in Atkins, has all been in one direction, and it's not as if that movement, in and of itself, answers the question. But where you have the type of consensus that exists here, as it did in Atkins, and where you have a scientific community that in Stanford was absent -- the American Medical Association, the American Psychological Association, the American Psychiatric Association, the major medical and scientific associations, were not able in 1989, based on the evidence, to come to this Court and say there is scientific, empirical validation for requiring that the line be set at 18.
03-633 +++$+++ 7122 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, in fact, the American Psychological Association is not your brief. You're not accountable for inconsistencies there. But I -- I would like your comment. They came to us in Hodgson v. Minnesota, as I think the State quite correctly points out, and said that with reference to the age for determining whether the child could have an abortion without parental consent, that adults -- that they -- that they were risk -- that they could assess risk, that they had rational capacity, and they completely flip-flop in this case.
03-633 +++$+++ 7123 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-633 +++$+++ 7124 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that just because of -- is that just because of this modern evidence?
03-633 +++$+++ 7125 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no, no. I don't -- I think it's -- it may be in small part to that, Justice Kennedy, but I think the main point is that what their brief looked to -- what the argument was was our -- are adolescents cognitively different than adults. And the answer is, as we -- our brief concedes, is generally no. And what was at issue in the abortion cases was competency to decide. And just as we allow the mentally retarded the ability to decide whether or not to obtain an abortion but not to be subject to a penalty that is reserved for the tiny fraction of murderers that are so depraved that we call them the worst of the worst, here competency to decide here, as with the mentally retarded, isn't the issue. Christopher Simmons was found, beyond a reasonable doubt, to have committed this offense with the specific intent necessary to do it, just as the mentally retarded can be. The issue in Hodgson was cognitive ability to be able to make a competent decision. And so I don't -- I didn't represent the APA then and I don't now, but I don't, with respect, think there's an inconsistency. In fact, the difference here goes to the factors that Atkins identified about why overwhelmingly the mentally retarded -- and here adolescents -- are less morally capable. They are much, much less likely to be sufficiently mature to be among the worst of the worst. And here, even more than with the mentally retarded, the few 16- and 17-year-olds who might, if we could even determine it, be -- we could determine were in fact so depraved that they were among the worst of the worst, there is no way reliably to identify them and there's no way reliably to exclude them. And it is in this respect that science I think changes. At the time of Stanford, everybody on this Court, of course, knew what all of us as adults intuitively know, which is that adolescents -- and -- and here we're talking about -- I agree that when adolescence starts and when it ends is undefined. But every scientific and medical journal and study acknowledges that 16- and 17-year-olds are the heartland. No one excludes them. And what we know from the science essentially explains and validates the consensus that society has already developed.
03-633 +++$+++ 7126 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If all of this is so clear, why can't the State legislature take it into account?
03-633 +++$+++ 7127 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, one could have said --
03-633 +++$+++ 7128 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, if it's such an overwhelming case that -- that we can prescribe it for the whole country, you would expect that the number of States that -- that now permit it would not permit it. All you have to do is bring these facts to the attention of the legislature, and they can investigate the accuracy of the studies that the American Psychological Association does or other associations in a manner that we can't. We just have to read whatever you put in front of us.
03-633 +++$+++ 7129 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, the number of States that engage in these executions is very small, and if it were all of the States, none of this Court's Eighth Amendment jurisprudence would ever have to come -- would ever have to be developed. But --
03-633 +++$+++ 7130 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's precisely because the jury considers youthfulness as one of the mitigating factors. It doesn't surprise me that the death penalty for 16- to 18-year-olds is rarely imposed. I would expect it would be. But it -- it's a question of whether you leave it to the jury to evaluate the person's youth and take that into account or whether you adopt a hard rule that nobody who is under 18 is -- is -- has committed such a heinous crime with such intent that he -- that he deserves the death penalty.
03-633 +++$+++ 7131 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice -- Justice Scalia, there's no doubt -- and the jury was instructed -- that age is a mitigating factor although, Justice Kennedy, in response to your question, our brief points out prosecutors, in the context of future dangerousness, which is relevant, argue it all the time and jurors intuitively think it all the time. But the fact that he could have made an individualized mitigating case or argued that he was only -- that he was young, as he did, doesn't address the constitutional problem. The constitutional problem is that overwhelmingly 16- and 17-year-olds, for reasons of the -- the developmental reasons relating to their psychosocial character --
03-633 +++$+++ 7132 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, Mr. Waxman, was that in evidence that you referred to from these various associations? Was that introduced at trial?
03-633 +++$+++ 7133 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- about the character --
03-633 +++$+++ 7134 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
03-633 +++$+++ 7135 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. The trial was -- I'm making an observation just as in -- as in Atkins --
03-633 +++$+++ 7136 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but I -- I would think if you want to rely on evidence like that, it ought to be introduced at trial and subject to cross examination rather than just put in amicus briefs.
03-633 +++$+++ 7137 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, no, Mr. Chief Justice. I'm not making an argument about the character or maturity of this defendant, which would have been the only thing that would be --
03-633 +++$+++ 7138 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. But you're making an argument that science says people this age are simply different, and it seems to me you -- if that's to be an argument, it ought to be introduced at trial.
03-633 +++$+++ 7139 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I -- it's an argument about what the Constitution prohibits. It's an argument about where a constitutional line should be drawn.
03-633 +++$+++ 7140 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but you're -- you're talking facts basically and facts ordinarily are adduced at trial for cross examination.
03-633 +++$+++ 7141 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I am not aware of any instance in which legislative facts, as you will call them, that is, facts that go to where a line should be drawn, whether it's by this Court because the Constitution ought to be so interpreted or a legislation should change, would be properly introduced to a jury that is supposed to accept the law, that has required to accept the law as is given by a judge --
03-633 +++$+++ 7142 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, how about in the -- how about in the habeas proceeding?
03-633 +++$+++ 7143 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the habeas proceeding, it's -- it's -- an argument could have been made and, indeed, was made in this case that the line -- that under Atkins juvenile offenders are the same and --
03-633 +++$+++ 7144 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, was this evidence adduced at the habeas proceeding?
03-633 +++$+++ 7145 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The habeas -- if you're talking about the -- the scientific studies --
03-633 +++$+++ 7146 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
03-633 +++$+++ 7147 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in peer-reviewed journals, it was not.
03-633 +++$+++ 7148 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well -- well, surely at the trial, you could have had a psychiatrist testify to all the things that are in your -- in your brief, and in fact the -- it would be another argument, but maybe the -- maybe the finding was deficient on that ground as well.
03-633 +++$+++ 7149 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we certainly could have had a psychiatrist argue that in -- generally speaking, adolescents are less mature and on a range of psychosocial factors, they --
03-633 +++$+++ 7150 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, he could have cited all the -- all the authorities you cite in your brief.
03-633 +++$+++ 7151 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. But, Justice Kennedy, I -- I concede that. The issue for this Court is whether the Constitution requires that as a matter of law, not as a matter of the application of law to a particular defendant, the line has to be drawn this way, and --
03-633 +++$+++ 7152 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Suppose -- suppose that all of the things set forth in your brief were eloquently set forth by a psychiatrist to the jury. Could the jury then weigh these things that you're telling us?
03-633 +++$+++ 7153 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The jury could have weighed these things, but there is no way, even for a psychiatrist or a psychologist, much less a juror to -- to be confident because of the inherent, documented transiency of the adolescent personality. No psychiatrist and no juror can say with confidence that the crime that was committed by a 16- or 17-year-old, on the average 2 years ago -- and this is the key point -- proceeded from enduring qualities of that person's character as opposed to the transient aspects of youth, and therefore --
03-633 +++$+++ 7154 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But now, that -- that itself is a purported scientific fact, what you just said, and it seems to me if we're -- if we're to rely on that, it ought to have been tested in the way most facts are.
03-633 +++$+++ 7155 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What the jury -- perhaps I'm not understanding your point.
03-633 +++$+++ 7156 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you're -- you're relying on factual -- the statement you just made was -- was a factual statement about the enduring character, et cetera. Now, if -- if we are to take that as a fact, it ought to have been tested somewhere rather than just given to us in a brief.
03-633 +++$+++ 7157 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- the -- an argument to the jury that regardless of what a psychiatrist or a psychologist would have said about Christopher Simmons, as a group, 16- and 17-year-olds have such labile personalities that it is impossible to know whether they're -- the crime that they committed reflected an enduring character is an argument that could have been made to spare this particular defendant, but it need not have been credited or given dispositive weight, particularly since at sentencing -- and this Court has acknowledged this in cases like Pate v. Robinson and Drope v. Illinois -- the jury is evaluating somebody, determining their moral blameworthiness 2 years later.
03-633 +++$+++ 7158 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But -- but if you're reluctant to give it dispositive weight in an individual case, then you come in and ask us to give it dispositive weight as a general rule, that seems to me inconsistent.
03-633 +++$+++ 7159 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, no. What I'm -- what I'm asking you to do -- what I'm suggesting is that the weight of scientific and medical evidence of which the Court can take judicial notice and should take judicial notice and did take judicial notice in cases like Atkins and Thompson and Stanford explains and validates the consensus that society has drawn. We're not arguing that the science or what a particular neurobiologist or developmental psychologist says dictates the line of 18. The question is we have a consensus. It's even more robust than it was in Atkins. Looking at proportionality and reliability with respect to that consensus, is there a good, objective, scientific reason to credit the line that society has drawn? And I'm suggesting two things. Number one, that although one could posit that there are 16- and 17-year-olds whose antisocial traits are characterological rather than transient, we know it is impossible -- we know this from common sense and it's been validated by science, of which the Court can take note, that it is impossible to know whether the crime that was committed by a 16- or 17 year-old is a reflection of his true, enduring character or whether it's a manifestation of traits that are exhibited during adolescence. And --
03-633 +++$+++ 7160 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, suppose -- suppose I -- I were not convinced about your scientific evidence was conclusive and I don't identify a clear consensus. Do you lose the case, or can you then make the same argument you just made appealing to some other more fundamental principle that Stanford was just wrong?
03-633 +++$+++ 7161 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Here -- no. Well -- no. Here's what I would appeal to. I -- there are three relevant factors that this Court has to look at. There's the determination of consensus. Is there enough of a one or isn't there? There's the determination of proportionality, and then there's the issue identified in Lockett and in Atkins, which is how reliable is the individualized sentencing process. How reliably -- when we're talking about picking the tiny few who are the worst of the worst, how reliably can we do that? We think that with respect to each of those, we have demonstrated that the Eighth Amendment requires recognizing 18. But I will take as a posit your hypothetical question that I haven't convinced you on number one, number two, or perhaps individually on all three. This is truly a case, Justice Kennedy, in which the whole is greater than the sum of the parts. Taken together, the fact that it's impossible for a jury to know whether the crime of an adolescent was really the feature of an enduring character, since we know, as in Atkins, that many of the characteristics that manifest themselves in mental retardation also affect the inability of adolescents to communicate with their attorneys, to express remorse, that 2 years later when this person is on trial, physically, emotionally it's not the same person that the jury is looking at and being asked to evaluate --
03-633 +++$+++ 7162 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So that -- that's -- that last point was what I thought the scientific evidence was getting at, that it simply confirmed what common sense suggests, that when you execute a person 15 or sometimes 20 years later, a problem always is that that person isn't the same person who committed the trial in a meaningful sense. And it's specially true of 16- and 17 year-olds who, observation would suggest, have a lot of changing to do because their personality is not fully formed. Now, I thought that the -- the scientific evidence simply corroborated something that every parent already knows, and if it's more than that, I would like to know what more.
03-633 +++$+++ 7163 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's -- I think it's -- it's more than that in a couple of respects. It -- it explains, corroborates, and validates what we sort of intuitively know, not just as parents but in adults that -- that -- who live in a world filled with adolescents. And -- and the very fact that science -- and I'm not just talking about social science here, but the important neurobiological science that has now shown that these adolescents are -- their character is not hard-wired. It's why, for example -- here's a -- here's an interesting and relevant scientific fact. Psychiatrists under the DSM, the Diagnostic and Statistical Manual, which is their Bible, are precluded from making a diagnosis of antisocial personality before the age of 18 precisely because before the age of 18, personality and character are not fixed even with respect to --
03-633 +++$+++ 7164 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Waxman, I -- I thought we punish people, criminals, for what they were, not for what they are. I mean, you know, if you have someone who commits a heinous crime and by the time he's brought to trial and convicted, he's come to Jesus, we don't let him off because he's not now what he was then. It seems to me we punish people for what they were.
03-633 +++$+++ 7165 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We --
03-633 +++$+++ 7166 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And to say that adolescents change, everybody changes, but that doesn't justify eliminating the -- the proper punishments that society has determined.
03-633 +++$+++ 7167 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think, with respect, Justice Scalia, I'm not -- I think that there is an interesting question about -- with respect to death, whether what they are and what they will become is totally irrelevant. But accepting the premise of your question, my point is that science has confirmed what we intuitively know, which is that when the jury gets around to evaluating what the character was that manifested that horrible crime, they can't tell because of the passage of age and because of a number of confounding factors and because psychologists and psychiatrists can't tell themselves whether the crime that occurred 2 years ago or 2 weeks ago was the manifestation of an enduring character or transient psychosocial traits that rage in adolescence.
03-633 +++$+++ 7168 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is part of your answer based on the length of time between the killing and the trial?
03-633 +++$+++ 7169 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Only part, Mr. Chief Justice. Part of it is that the jury, of course, is looking at the defendant, and we have laid before the Court peer-reviewed scientific studies that show that they -- that people are -- frequently equate maturity and psychosocial development with race and with physical appearance. In addition, because the adolescent personality is transient and the lapse of time for trial is 2 years, in a very real sense psychosocially as opposed to -- in addition to physically, the person that the jury is judging is not the -- is not a manifestation of the person who committed the crime.
03-633 +++$+++ 7170 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what if -- what if a State said I see the problem, so we'll bring this person to trial in 6 weeks?
03-633 +++$+++ 7171 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Even if it were in 6 weeks, Mr. Chief Justice, we believe that the process is -- is sufficiently -- that would just make the youth the same as the mentally retarded, because the mentally retarded have stable personalities and stable characters, and yet, what this Court said in Atkins was we have two things to say. One is that overwhelmingly as a group the mentally retarded are unlikely to be among the very worst of the worst, and the very deficits that they have -- that you called deficits in reasoning, judgment, and control of their impulses, makes the jury -- the process of the jury evaluating the moral culpability, the moral blameworthiness unreliable. And it's on the basis of those two things that we think that the consensus that's otherwise reflected is validated. And here --
03-633 +++$+++ 7172 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I have -- I have one other question I'd like to ask because it's been troubling me and I want your comment. A number of juveniles run in gangs and a number of the gang members are over 18. If we ruled in your favor and this decision was given wide publicity, wouldn't that make 16-, 17-year-olds subject to being persuaded to be the hit men for the gangs?
03-633 +++$+++ 7173 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-633 +++$+++ 7174 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm -- I'm very concerned about that.
03-633 +++$+++ 7175 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I am also concerned about it, and I -- I have thought about this. First of all, if they are enlisted by people over the age of 18 to do that, the -- the precise degree of culpability goes to the people who are over 18, and juries ought to consider whether people who are over the age of 18 have so enlisted them. But even -- but with respect to --
03-633 +++$+++ 7176 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm talking about the deterrent value of the existing rule insofar as the 16 and 17-year-old. If -- if we rule against you, then the deterrent remains.
03-633 +++$+++ 7177 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think -- I think, as with the mentally retarded, or in fact, even more than with the mentally retarded, adolescents -- the -- the role of deterrence has even less to say, precisely because they weigh risks differently and they don't see the future and they are impulsive and they're subject to peer pressure. And in fact, if you look at what happened in this case, it's as good an example as any. The State says, well, okay, you know, he -- you know, this guy, according to the State's witness, the person, who was over 18 and described as the Fagin of this group of juveniles, testified to the court, well, Christopher Simmons says, let's do it because, quote, we can get away with it.
03-633 +++$+++ 7178 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, there were a number -- a number of cases in the Alabama amicus brief, which is chilling reading -- and I wish that all the people that sign on to the amicus briefs had at least read that before they sign on to them -- indicates that often the 17-year-old is the ringleader.
03-633 +++$+++ 7179 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the 17-year-old may be the ringleader, and even if you posit that Christopher Simmons was the ringleader here, he -- he wasn't under any illusions. He wasn't making a statement about being executed. He said, we could get away with it, which speaks volumes about the -- the extent to which -- this guy was subject to life without parole, which is, Justice Scalia, fundamentally different than death. This Court has said that only when the penalty is death, do you look at the character of the defendant as opposed to the nature of the crime and the act. But the data shows -- and I think this Court has acknowledged -- it acknowledged in Thompson in any event -- that the -- that adolescents like the -- the mentally retarded are much less likely to be deterred by the prospect of an uncertain, even if probable, very substantial penalty. The -- no mature adult would have thought, as Chris Simmons reportedly said, I can get away with this because I'm 17 years old, when the mandatory punishment for him would have been life in prison. It's -- it is not -- eliminating the death penalty as an option, which is -- which is imposed so rarely as to be more freakish than the death penalty was in Furman -- three States in the last 10 years, one --
03-633 +++$+++ 7180 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But of course, the death penalty was not a deterrent for any of the crimes described in the Alabama brief because those are all -- crimes all occurred in States which execute people under 18.
03-633 +++$+++ 7181 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, and I -- and I -- the -- the examples in the Alabama brief are horrifying. But if you look at those examples, the very first one, this is a kid who went on a killing spree, including his father, because he felt he was unjustly deprived use of the family truck. And there -- I can go through the other examples, but these are posited as people who a jury could, with a degree of reliability that the Constitution requires, say acted out of a stable, enduring character rather than transient aspects of youth? I think that's a poster child for us.
03-633 +++$+++ 7182 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Whereas if it had been done by an 18-year-old, a jury could have said that.
03-633 +++$+++ 7183 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-633 +++$+++ 7184 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If an 18-year-old did the same thing, you say, well, he's certainly stable.
03-633 +++$+++ 7185 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ May I answer? Briefly. The line -- the science shows what common sense understands which is that development is a continuum, but the line, 18, is one that has been drawn by society.
03-633 +++$+++ 7186 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Waxman.
03-633 +++$+++ 7187 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
03-633 +++$+++ 7188 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Layton, you have 8 minutes remaining.
03-633 +++$+++ 7190 +++$+++ FALSE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Simmons, of course, was found by the jury to be the ringleader. And in essence, that creates a contrast with the Lee Malvo case where we had something like what Justice Kennedy referred to, adults influencing a juvenile, and the jury was able to make that distinction in the Virginia Lee Malvo case.
03-633 +++$+++ 7191 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask this question, Mr. Layton? This case kind of raises a question about the basic State interests that are involved here, and the State interests that justify the death penalty include deterrence and also retribution.
03-633 +++$+++ 7192 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-633 +++$+++ 7193 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which, if either, of those do you think is the primary State interest you seek to vindicate today?
03-633 +++$+++ 7194 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I think that they are of equal weight in the minds of the legislators in the State of Missouri. The -- Mr. Simmons' counsel comes to the edge of asking this Court to --
03-633 +++$+++ 7195 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I just ask one further?
03-633 +++$+++ 7196 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-633 +++$+++ 7197 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is there any evidence that the death penalty for those under 18 or even above has, in fact, had any deterrent value?
03-633 +++$+++ 7198 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ From all that I have read, the evidence both directions is inconclusive, Your Honor, and thus, subject to legislators' determination. Mr. Simmons' counsel comes to the edge of asking the Court to elevate proportionality to be equivalent to -- to a consensus. But let me just highlight two aspects of the non-capital case proportionality jurisprudence of this Court. Justice Kennedy, in -- in Harmelin recently cited by the plurality in Ewing, pointed out that two of the considerations in proportionality review in those instances are the primacy of the legislature and the nature of the Federal system. What we should have here is a principle that is a principle dealing with immaturity, and the States, within the Federal system, should be able to make the determination as to how to implement it. As pointed out, this Court's jurisprudence in Eighth Amendment areas has proven to be a one-way ratchet, and because of that, the Court has to be very wary of leading rather than reflecting societal norms. Now, there are some States, of course, that have raised the age, the minimum age, for capital punishment, but at least in some instances, such as Missouri, that is a reaction to this Court's jurisprudence, that is, a reaction to Thompson and Stanford. Other States have left 18 for other purposes, and yet there still is a role by this Court. Pornography is an example. I am confident that but for this Court's First Amendment jurisprudence, the Missouri General Assembly would adopt a statute that said that pornography should not be allowed at ages much higher than 18 and not because of maturity, but because of their opposition to pornography. In many of the instances cited by Mr. Simmons, the kind of statutes that he cites, gambling and others, it is a compromise in the legislative arena, not necessarily based on maturity or immaturity, that leads to the selection of the age of 18. Many States have, of course, individualized determinations with regard to those statutes. There was a discussion of driver's licenses. In Missouri, of course, we allow people to drive at age 15. They have to have parental consent, yes, but there also is a test. That is, there is an individualized determination before we do that, and that's what the State requests here. Mr. Simmons' counsel points out that in Atkins the Court took judicial notice of psychosocial evidence, and that's true. The Court did. But remember that what the Court had before it in Atkins was not a proxy for a -- a factor that plays into culpability. It was, in fact, the factor itself, that is mental capacity. And what they want here is not a determination as to the maturity or the capacity of individuals. They want a bright line test that is based purely on age. This Court should adopt, as it did in Atkins, a principle and leave it to the States to act. That's what the Court did in --
03-633 +++$+++ 7199 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Of course, one -- one of the objections in -- in Atkins was we needed a bright line test. We'd have difficulty determining which ones are mentally retarded. Here we don't have that problem at all. I guess everybody knows whether or not the defendant is over or under 18.
03-633 +++$+++ 7200 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if that's the bright line. We don't know whether they're mature or immature, and we have to measure that somehow.
03-633 +++$+++ 7201 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the -- but the purpose of a bright line test is to avoid litigation over the borderline cases, and you just have completely avoided that in this category.
03-633 +++$+++ 7202 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the -- having a bright line test means that the individual who murders at age 17, 364 days is treated differently than a more -- a less mature individual who is 2 days older.
03-633 +++$+++ 7203 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it's an equally arbitrary line if it's 16, 17, or 15.
03-633 +++$+++ 7204 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it is, and it's an arbitrary line that the legislatures have set because it's a legislative type determination based on what even Mr. Waxman called legislative facts.
03-633 +++$+++ 7205 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask one -- have you read the brief of the former U.S. diplomats in the case?
03-633 +++$+++ 7206 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-633 +++$+++ 7207 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think we should give any credence whatsoever to the arguments they make?
03-633 +++$+++ 7208 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. (Laughter.)
03-633 +++$+++ 7209 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The respect of other countries for our country is something we should totally ignore.
03-633 +++$+++ 7210 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's not for this Court to decide. Congress should consider that. The legislatures should consider that. It's an important consideration, but it is not a consideration under the Eighth Amendment.
03-633 +++$+++ 7211 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We should leave it up to the legislature of the State of Missouri to resolve those questions.
03-633 +++$+++ 7212 +++$+++ TRUE +++$+++ MR. LAYTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Within the parameters of -- of Thompson and Stanford, yes. Yes. The Missouri Supreme Court -- the Atkins v. Virginia -- in Atkins v. Virginia, this Court did not authorize the Missouri Supreme Court to reject Stanford. The Court should refuse to -- to sanction such activity by the lower courts and continue the course it set in that decision. Thank you.
03-633 +++$+++ 7213 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Layton. The case is submitted.
03-636 +++$+++ 7217 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument in Johnson against California. Mr. Deixler.
03-636 +++$+++ 7219 +++$+++ FALSE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: This case presents the issue of whether the California Department of Corrections, unlike every other State in the Federal Bureau of Prisons, may continue its more than 28-year, unexamined practice of routine, blanket racial segregation of its prisoners. The unitary practice in question here was applied more than 350,000 times last year, not just to the 40,000 new prisoners entering the California system, but to all 72,000 returning parolees and hundreds of thousands of transfer prisoners such as the petitioner in this case, Garrison Johnson, a petitioner who had been housed for more than 15 years in the California prison system. This unexamined, routine practice effectively erected whites only, blacks only, Hispanics only signs over the portals of the California prison system, and it is a practice which is routed in racial stereotype and the belief that all persons of a race think alike and act alike. California's needless and dangerous policy fails both the strict scrutiny test, which the Ninth Circuit should have applied, and the Turner deference standard, which the Ninth Circuit wrongly applied.
03-636 +++$+++ 7220 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is California the only State, to your knowledge, to apply this procedure?
03-636 +++$+++ 7221 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice O'Connor, it is. The --
03-636 +++$+++ 7222 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The -- the statistics showed that there were -- I'm sorry. I don't have it right at my fingerprints -- fingertips -- only about 200,000 processing incidents a year, 200,000 people a year to be processed. I take it that includes some people that are being transferred?
03-636 +++$+++ 7223 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, correct, Your Honor. In -- in the circumstances in this case, Petitioner Johnson, for example, during his 15 years, had been transferred on five separate occasions, and the circumstances which he experienced are not unusual within the California prison system. Indeed, an outside-the-record fact: within the last three weeks, he's been informed that he's to be transferred yet again within the California prison system to another facility called Corcoran.
03-636 +++$+++ 7224 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May -- may I put aside for a moment the question of the strength of your argument in transfer situations and simply go to the circumstances of the original receipt of the prisoner for the first time into the prison system? What do the other States -- you say California is the only one that -- that makes this racial assignment like this. What do the other States do to guard against an -- an explosive team-up in -- in double-celled prisoners when -- when they're taking them in for the first time?
03-636 +++$+++ 7225 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The circumstances in other States, which we've been able to identify, include a range of -- of circumstances, which include -- as is available in California under the penal code section, which requires the delivery of a presentence report, together with a commitment order, is analysis on a particularized circumstance basis of the individuals who are coming into the prison and making a -- an estimate as to what may occur. Other States use a random assignment circumstance, and giving no consideration whatever to race. And a third group of States apparently consider race as part of an overall or holistic bit of analysis with regard to trying to equalize the prison populations.
03-636 +++$+++ 7226 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you know if there are in these other States the same incidents of racial riots or racial killings or racial attacks?
03-636 +++$+++ 7227 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the best empirical evidence which exists that we're familiar with was reported in the Trulson study, which the dissenters in the Ninth Circuit petition for rehearing en banc relied upon and which the amici have filed with this Court. And in that circumstance, it suggests, over a 10-year study in Texas, that only five percent of all of the interracial -- of -- of all of the incidents of violence in -- in the Texas prison system were what was described by Professor Trulson as having racial motivations. And of that five percent, only one-quarter, or about 1.2 percent, were interracial circumstances where there had been interracial cellmates involved in the racial violence. And that seems to be, as far as anyone has been able to produce in this case in any part of the record, the best empirical data which might respond to your question, Justice Scalia.
03-636 +++$+++ 7228 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Were there any incidents in California's prisons of same cellmates of different races having episodes of violence? Or -- this is an old policy. So were there incidents like that that led to the development of the policy?
03-636 +++$+++ 7229 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, one of the interesting things about the record in this case is that the State of California has been unable to identify a single incident of a -- of interracial violence between cellmates. The record is bereft of that kind of information. Rather, they've spoken of information about violence which occurs in more --
03-636 +++$+++ 7230 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, they say that that proves that their policy is very effective. I mean, that's -- (Laughter.)
03-636 +++$+++ 7231 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the -- I think the record suggests, as at least in the testimony of Mr. Johnson, that it is a de facto segregation system which exists after the 60-day period and outside the transfer 60-day period, and so it would be hard for the State of California to provide -- to provide that data.
03-636 +++$+++ 7232 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose you were to prevail in this case and a court were to enter a decree forbidding this practice. A month later, there is an incident in which one prisoner is seriously injured in a -- in a prison cell because of the interracial assignment policy. Would that be grounds for rethinking the decree?
03-636 +++$+++ 7233 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Kennedy, it seems to me that under the Court's strict scrutiny analysis, which in my judgment should have applied here, and under the particularized circumstance test announced in the Lee case in the concurrence, that a circumstance involving a single prisoner in a single prison cell on one occasion ought not to give rise to a systematic change in -- in a policy which is rooted in racial stereotype. With regard to those prisoners involved in that particular circumstance, of course, some period of -- of segregation would be appropriate as a means of controlling and ensuring that there's not going to be some kind of wholesale racial violence. That --
03-636 +++$+++ 7234 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What is -- what is sacrosanct about the -- about the constitutional right not to be subjected to racial stereotype? There are a lot of other constitutional rights that people in prison give up. That's one of the consequences of committing a crime and being sent to prison, the most fundamental constitutional right, the right to -- to walk around and -- and not be seized. Why -- why is it that this -- this one constitutional right cannot yield to what prison authorities believe is -- is a useful, not necessarily essential, but a useful means of -- of maintaining order in prison?
03-636 +++$+++ 7235 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia, the fundamental teachings on the Fourteenth Amendment of this Court demonstrate that race is different, that the government use of race is presumed to be unlawful --
03-636 +++$+++ 7236 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, it's -- it's different from First Amendment rights? Prisoners can't hold news conferences. I mean, there are all sorts of very important constitutional rights that I think are no more important than the Equal Protection Clause which prisoners yield when they're in prison. Now, do we subject the taking away of all of these rights to strict scrutiny when the prison authorities do it? I don't think so. I think we say if it's -- if it's the judgment of the -- of the prison authorities, we -- we generally defer to it.
03-636 +++$+++ 7237 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The Turner standard certainly reflects a consideration by this Court that deference is appropriate with regard to rights which are inconsistent with incarceration.
03-636 +++$+++ 7238 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, even First Amendment rights.
03-636 +++$+++ 7239 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Even First Amendment rights.
03-636 +++$+++ 7240 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't that so?
03-636 +++$+++ 7241 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice O'Connor.
03-636 +++$+++ 7242 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which is a terribly important set of rights for individuals, is it not?
03-636 +++$+++ 7243 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The First Amendment rights are very important.
03-636 +++$+++ 7244 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
03-636 +++$+++ 7245 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ However, in the context of incarceration, a sacrifice of the right to assembly, the right to correspond in certain circumstances, to contact visits are things which are well within the ambit of what a prison needs to control.
03-636 +++$+++ 7246 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, I don't think so. I -- why would holding a news conference disrupt a prison? It wouldn't. You say it's too much trouble. We don't want news conferences in prison.
03-636 +++$+++ 7247 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And in -- and in the circumstances that the Court's test has been announced in Turner, that's certainly within the ambit of a right which the prison authorities might properly exercise.
03-636 +++$+++ 7248 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And why is this not one?
03-636 +++$+++ 7249 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because this Court decided --
03-636 +++$+++ 7250 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Because it -- it is no -- there is no doubt that there are racial gangs in prison, the Aryan Brotherhood and -- and Hispanic gangs and -- and black gangs. There's no doubt that that exists. Is it --
03-636 +++$+++ 7251 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's no doubt -- Justice Scalia, there's no doubt that there are racial gangs in prison, but this policy of California is directed not to the gang aspect of it but to the race aspect. The record is clear that there's a near zero percent chance that any black person could be housed with any white person, that any white person could be housed with any Hispanic person, without reference to the gang question. And this is a transfer policy which recurs and recurs, five times in the case of -- of --
03-636 +++$+++ 7252 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Deixler, do you think you lose if we apply Turner?
03-636 +++$+++ 7253 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. We believe that even under Turner --
03-636 +++$+++ 7254 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why isn't that the right approach to the case then if that's the -- we don't have to meddle with the rules governing the -- the conduct of prisons, if you can prevail under that theory?
03-636 +++$+++ 7255 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would -- we would be pleased to -- to prevail under -- under Turner, Justice Stevens. It seems that consistent with the Court's teachings under the Fourteenth Amendment and the most recent considerations by the Court of equal protection and strict scrutiny, that the use of race by California in this context should trigger a strict scrutiny analysis, should lead to an analysis of whether there has been narrow tailoring. But under the Turner test, we believe properly applied, the petitioner should prevail as well. Under the Turner test, it seems that at least two of the four elements which are announced in Turner couldn't possibly be met here. The first one is it seems to be no -- there is no reasonable relationship between the government regulation which is at issue and the announced policy. The notion that one can determine by race alone a violent propensity seems irrational, unreasonable, and contrary to the only empirical evidence which exists, the Trulson study.
03-636 +++$+++ 7256 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose you have a population in which 50 percent of all the members of a particular race are a member of a -- of a gang, a gang such as we've read about in -- in the record, Bloods, Crips, et cetera. 50 percent are members of the gang. Would that allow you to segregate?
03-636 +++$+++ 7257 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't think such a statistic --
03-636 +++$+++ 7258 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is -- is that because you don't equate race gangs with race animosity?
03-636 +++$+++ 7259 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in fact, in part that's correct, Justice Kennedy. The -- the --
03-636 +++$+++ 7260 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- because it does seem to me that part of your submission, or at least an inference that I drew, was that race-based gangs do not constitute race-based threats. Am I right in saying that that's your submission?
03-636 +++$+++ 7261 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Without more, Justice Kennedy, that inference cannot be drawn, and I'll give the Court the example of the Crips and the Bloods --
03-636 +++$+++ 7262 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You mean the inference that the -- which inference? That they are or are not a threat?
03-636 +++$+++ 7263 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That they are not to the extent that, Justice Kennedy, you're asking whether it is an interracial threat. It is -- it is undoubtedly true, taking the example of the Crips and the Bloods, that they are intra-racial threats, and indeed prison policy directed towards separating Crips and Bloods because of the -- of the intraracial problem is certainly one which would be something that the -- the prison system should address.
03-636 +++$+++ 7264 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- assume that a gang poses an interracial threat?
03-636 +++$+++ 7265 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- there's no evidence which has been produced in this record which would suggest that the policy can be tied from skin color to gang membership and from gang membership to interracial violence.
03-636 +++$+++ 7266 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I asked -- I asked about gang membership. Can gang membership be equated with an interracial threat in any significant number of -- of gangs?
03-636 +++$+++ 7267 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not in the record of this case, Justice Kennedy.
03-636 +++$+++ 7268 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't -- you -- you don't need it in the record. You -- you know what the Aryan Brotherhood is. It -- it is a white group that is hostile to blacks in particular, and you know what the Bloods are. It is a black group that -- that is hostile to whites. And -- and does it take any more than common sense to know that if you put a tattooed member of one group in with a tattooed member of the other group, the likelihood of violence in that cell is going to be greater? And is any more than that needed for -- for the -- for the prison not to cell them together? Would you acknowledge that at least if the -- not just on the basis that one is white and one is black, but if the prison knows that -- that one is a member of the Aryan Brotherhood and the other is a member of the Bloods, the prison can refuse to -- to assign them to the same cell?
03-636 +++$+++ 7269 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-636 +++$+++ 7270 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
03-636 +++$+++ 7271 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is the --
03-636 +++$+++ 7272 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Now -- now suppose -- I didn't mean to intrude on Justice Breyer, but just following this question, suppose that 50 percent of all the inmate population in a particular small prison is a member of one of these gangs. Then could you segregate on account of race?
03-636 +++$+++ 7273 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think on race alone, the prison system would run afoul of the Constitution in making that determination. If it -- if race were analyzed in the context of gang membership, as part of an overall analysis of proclivity to violence based upon a series of facts existing in that prison, particularized circumstances, as suggested in the Lee case, I think that would be a proper analysis and constitutional. It's --
03-636 +++$+++ 7274 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, would it be a proper analysis simply to -- to separate or not based on gang membership?
03-636 +++$+++ 7275 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Souter.
03-636 +++$+++ 7276 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. Your answer to Justice Scalia stands on that. So you would not be making an argument that gang membership is merely a surrogate for race in that case if that were the policy.
03-636 +++$+++ 7277 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. In that particular case, gang membership is not a surrogate for race. In the California policy, race is a surrogate for gang membership.
03-636 +++$+++ 7278 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
03-636 +++$+++ 7279 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd like to reserve the balance of my --
03-636 +++$+++ 7280 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I -- may I ask just one question? I understand the -- your position that Turner is enough to cover this, but you're going-in position was that race is different, even different than the First Amendment. And you gave one other example, the Eighth Amendment. It may be convenient, make things easier for the administration of a prison if prisoners are tortured every now and then to keep them in line, but obviously, the Eighth Amendment prevails over that. Is there anything else that you say is -- is so fundamental that we don't do it, like torture? And -- and you say race segregation belongs in that category. Anything else?
03-636 +++$+++ 7281 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Well, in this Court's opinion in the McKune case under a Fifth Amendment analysis, it was found that that didn't -- it was not analyzed under a Turner standard. And even in the Harper case, before the determination of the liberty right being taken under the Turner standard, the Court relied upon procedural due process rights which were exercised in -- in the State of Washington with regard to -- to the prisoner. I'd like to reserve the balance of my time.
03-636 +++$+++ 7282 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Clement.
03-636 +++$+++ 7284 +++$+++ FALSE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: This case presents the Court with an opportunity to reaffirm that all government policies based on race are subject to strict scrutiny. The deference generally owed to the sound judgment of prison officials does not require this Court to modify its repeated statements that all government action based on race should be subject to strict scrutiny.
03-636 +++$+++ 7285 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We say the same about the First Amendment, don't we? All government actions restricting speech are subject to strict scrutiny. Right? And yet, we allow that to occur in prison.
03-636 +++$+++ 7286 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that this Court has recognized in a variety of contexts, including when they have -- when justices have made reference to prison policies, that all government actions based on race are subject to strict scrutiny.
03-636 +++$+++ 7287 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Unlike the First Amendment.
03-636 +++$+++ 7288 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The First Amendment obviously has been subjected, at least when you're talking about things other than outgoing prisoner mail, to be subjected to the Turner analysis, but note -- this Court has never suggested that the Turner analysis applies to race.
03-636 +++$+++ 7289 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Clement, will you tell us how the Government would come out applying the Turner analysis in this case?
03-636 +++$+++ 7290 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Justice Stevens. I think if the Turner analysis is correctly applied in this case, this policy does not even survive Turner analysis. I would suggest it's very analogous to the marriage policy that the Court struck down in Turner applying the Turner analysis because there the State identified a concern with inmate marriages and particularly with inmate-to-inmate marriages, and yet they adopted a policy that prohibited all inmate marriages. Here there's a concern that's expressed with newly arriving inmates, about whom California says it knows very little. Yet, it applies its policies to transferring inmates, as well as to returning parolees.
03-636 +++$+++ 7291 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And why should we decide the constitutional question?
03-636 +++$+++ 7292 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think either one of those would be a constitutional --
03-636 +++$+++ 7293 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it's --
03-636 +++$+++ 7294 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- holding of this Court, and I think either under Turner or under strict scrutiny, it's still equally a constitutional holding. And I think it would send an improper message to suggest that there's some element of government decision-making that is somehow exempt from strict scrutiny. I think in a variety of contexts, this Court, where it generally reviews a government action deferentially -- take, for example, jury selection, peremptory challenges. Take, for example, military policy. Take, for example, congressional districting. Those are all government policies this Court generally refuse -- reviews under a highly deferential standard. Yet, nonetheless, when it comes to government policies based on race, this Court applies strict scrutiny. And in that sense, I think the racial districting cases provide a very good example because there, generally, as the Vieth case from last term illustrates, this Court is very reluctant to do any review of the districting lines that are drawn. Yet, when race is identified as being the cause for the lines being drawn, as in Miller against Johnson, this Court emphasizes that strict scrutiny applies.
03-636 +++$+++ 7295 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is -- is there an argument to be made that the reason we make that emphasis and -- and an argument for you in this case that there is somehow a greater fragility to -- to the effective standards to prevent racial classification than there is to the possibility of enforcing speech rights and so on? Is there something to worry about here more than in the case of -- of enumerated rights that -- that gets the Turner analysis?
03-636 +++$+++ 7296 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that's part of it, Justice Souter. I think one thing is that particularly because of the history of this country and the use of -- of race by governments, including in prisons, there is a concern that all government uses of race must be subjected to very heightened scrutiny.
03-636 +++$+++ 7297 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but there's a pretty frightening history about speech restriction too.
03-636 +++$+++ 7298 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, again, I think, though, that there is almost a uniquely pernicious history involving race in this country, and I think, again, it is completely wrong to suggest that somehow prisons were exempt from that history. To the contrary. Throughout the Nation before Brown against Board of Education, it was common for prisons to be segregated on the basis of race.
03-636 +++$+++ 7299 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ This is not a permanent segregation in these California prisons. It's just temporary, isn't it? How long does it last?
03-636 +++$+++ 7300 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It lasts 60 days, is the best evidence.
03-636 +++$+++ 7301 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Until -- until they -- they have assurance that -- that the individuals are -- are not members of a gang and likely to, in -- in their view, commit racial violence if -- if co-celled with another prisoner.
03-636 +++$+++ 7302 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect, Justice --
03-636 +++$+++ 7303 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If it were permanent, your argument about this, you know, this is a long tradition of our prisons. We -- we keep the blacks and the whites separate. That -- that's not what they're doing in California. It's a temporary -- it's a temporary measure.
03-636 +++$+++ 7304 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect, Justice Scalia, in Lee against Washington, this Court upheld the integration not just of the Alabama prisons, but the Alabama jails, and the evidence before the Court there -- and this is clear from the three-judge opinion -- is that the average stay in the Birmingham city jail was seven to 15 days. Nonetheless, this Court said that seven to 15 days of racial segregation was too much.
03-636 +++$+++ 7305 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, but we didn't announce a standard.
03-636 +++$+++ 7306 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That was for the whole stay.
03-636 +++$+++ 7307 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's true, Justice Souter. I mean, I think if you look at Brown against Board of Education itself and you look at the various per curiam opinions that this Court issued in the wake of Brown v. Board, I don't think any of those decisions have a hallmark of being elaborate about the standard of review that the Court has applied. Nonetheless --
03-636 +++$+++ 7308 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What does seven -- what does seven to 15 days have to do with anything? It was for the whole stay that they were segregated. The stay may have been short, but the fact that during their entire period they were segregated showed that there was no other purpose to this thing except to keep the races separate. Whereas, here, they are kept separate for -- for the time which the California prison believes it needs in order to assure that there won't be violence, and once that assurance is given, the races are -- are mixed. That's a totally different situation.
03-636 +++$+++ 7309 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect, Justice Scalia, I disagree. The entire time these prisoners are kept at the reception center, which is a separate part of the facility where the incoming inmates go, that entire time they are segregated on the basis of race. Now, the Bureau of Prisons, for example, has a similar entry section in its various prisons. It's called the admissions and orientations process, and there, using the presentence reports that are provided for by California law, the Federal officials evaluate prisoners and their risk levels and have no need to segregate those prisoners on the basis of race.
03-636 +++$+++ 7310 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ One of -- one of California's response said, well, the Feds have mostly income tax evaders, maybe some drug dealers, but the State prisoners are the real tough guys, the real violent criminals. So --
03-636 +++$+++ 7311 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They have a high class of felons in the Federal prison basically.
03-636 +++$+++ 7312 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect, Your Honors, that misdescribes the -- the population of the Federal prisons. Part of where I think they get off on the wrong step is they do their analysis only on the offense of conviction. But a lot of the individuals in the Federal prisons are, say, for example, convicted felons who are convicted for felony in possession. And the underlying felony that led them to be, say, a 924(c) defendant was a violent felony. And so we -- there are also agreements by which the Bureau of Prisoners, on request from States, will house the State's most violent criminals. So I think that's an unfair description of what the Bureau of Prisons policy -- or population looks like. And I think the fact that the Bureau of Prisons and virtually every other State that's looked at this issue has found a mechanism to deal with the problem of incoming inmates without resorting to race is a powerful indication that this kind of use of race is unnecessary. And the problem with applying Turner, rather than strict scrutiny, I think is well illustrated by this case and this policy. This is a policy that is expressly acknowledged to take race into account, and it is nowhere written down. If you pull the Department of Correction manual for the California prison system, there's a 94-page chapter on the classification of inmates. Yet, this policy doesn't appear there. It's an unwritten policy. Justice Ginsburg, you asked, well, was this policy introduced in response to specific incidents of violence in a cell. The answer to that is unknowable because nobody even knows how long this policy has been in place. The official responsible for administering it acknowledged it's been in place for 25 years.
03-636 +++$+++ 7313 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why -- why does that affect the Turner analysis? I'm sorry. I don't understand.
03-636 +++$+++ 7314 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What I'm suggesting, Justice O'Connor, is what the -- the application of Turner to this policy allowed. It's to allow an unwritten policy where -- of uncertain origins --
03-636 +++$+++ 7315 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought you told us earlier it wouldn't survive Turner. I -- I don't understand your argument.
03-636 +++$+++ 7316 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it wouldn't survive a proper analysis under Turner. That is correct. But the -- the court of appeals here, applying its version of Turner, upheld this policy. And I think one way of looking at the choice between Turner and strict scrutiny is whether there is a greater threat that frequent judicial approvals of prisons' use of race will have the effect of diluting the strict scrutiny rigor or whether frequent disapprovals of prisons' use of race will have the effect of undermining the Turner deference. And the concern of the Federal Government is exactly that, that by having race policies evaluated under Turner, there will be a necessary temptation to bump up the Turner analysis in a way that strikes down racial policies.
03-636 +++$+++ 7317 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're concerned about evaluating prison race policies. Are there any other prison policies in the country that adopt a racial test like that?
03-636 +++$+++ 7318 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think -- I think California -- it's -- it's best described as California is one of at most a couple of States that have a comparable cell-based policy of segregation. And so I think it really is kind of the outlier in terms of that analysis. Now, there may be situations -- and we think strict scrutiny can account for them -- where States want to take race into account in particularized circumstances. And I think testing those under strict scrutiny is the proper mode of analysis.
03-636 +++$+++ 7319 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Your --
03-636 +++$+++ 7320 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Clement.
03-636 +++$+++ 7321 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor.
03-636 +++$+++ 7322 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. -- Ms. Grunder.
03-636 +++$+++ 7324 +++$+++ FALSE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: Turner's unitary deferential standard of review balances inmates' rights with the exceptionally dangerous and difficult job of running a prison. The Turner standard applies here because the need for prison deference doesn't change with the nature of the right asserted. California is Ground Zero for raced-based prison and street gangs. The Aryan Brotherhood, the Black Guerilla Family, the Mexican Mafia, and the Nuestra Familia --
03-636 +++$+++ 7325 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there any evidence in the record that the initial placing of two inmates in the same cell has ever had -- has ever produced a racial incident?
03-636 +++$+++ 7326 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the reception center, Your Honor?
03-636 +++$+++ 7327 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Pardon me?
03-636 +++$+++ 7328 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the reception centers?
03-636 +++$+++ 7329 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
03-636 +++$+++ 7330 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, because the -- the inmates are not interracially housed.
03-636 +++$+++ 7331 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You've never tried it.
03-636 +++$+++ 7332 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's nothing in the record, Your Honor. The policy has been in effect for a considerable length of time, and -- and during that time, they have not interracially housed inmates in the same cell. I think it's important to remember here that the policy only applies in the reception center areas and in the cells.
03-636 +++$+++ 7333 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it applies in the reception center area for someone who has been transferred as well as the -- an initial incarceration.
03-636 +++$+++ 7334 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's a very shortened period for a transferee. It's only 14 days under the California regulations, and it only applies if they are put in a cell. If there is someone who is eligible to be housed in a dormitory, that is, somebody who has been convicted of a less violent offense or they have more information about, then the dormitories are fully integrated, as well as every other aspect of the reception center.
03-636 +++$+++ 7335 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- I'm sorry. Even in the case of -- of housing in cells, what's the justification for it? The argument is -- excuse me -- on the initial intake, we don't know enough about them. Well, on -- on the transfer, you've had plenty of time to know about them. Why is it justifiable even for 14 days on -- on the transfer?
03-636 +++$+++ 7336 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's what I don't understand too. That -- that's really what most troubles me about this case. Why -- why do you do this to the transferees at all?
03-636 +++$+++ 7337 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's a -- there's a couple of reasons, Your Honors. First of all, as much as you may know about the transferring individual, you may not know the information about their prospective cellmate at the transfer institution because they may be somebody who's a newly received cellmate, somebody who is going through a reception center process themselves.
03-636 +++$+++ 7338 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, unless you house them with the cellmate, what are you going to learn from segregating them for 14 days?
03-636 +++$+++ 7339 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What happens when they arrive at the receiving institution is there needs to be time for a record review. The records do not arrive at the exact same time as the inmates. And so they convene a classification committee and at which point they review the records.
03-636 +++$+++ 7340 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if we have a choice between segregating by race and speeding up the delivery of records, isn't it constitutionally preferable to get the records delivered on time?
03-636 +++$+++ 7341 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The records need to stay with the inmate at the old prison until the inmate leaves on the bus for the new prison because --
03-636 +++$+++ 7342 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why? Don't you have xeroxes? (Laughter.)
03-636 +++$+++ 7343 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in the case of California, there's over 165,000 inmates. In Mr. Johnson's case, his records probably are many, many banker's boxes full of records. So that's the type of --
03-636 +++$+++ 7344 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When -- when -- there's a transferee from prison A to prison B and he goes to the reception center. Does that transferee get housed with other transferees or is he also housed, from time to time or often, with new entrants into the system?
03-636 +++$+++ 7345 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He may be housed with new entrants into the system and that -- that's the reason --
03-636 +++$+++ 7346 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So -- so as to one-half of the people in that -- in that instance, you don't know what the other inmate's record is.
03-636 +++$+++ 7347 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. And I would like to --
03-636 +++$+++ 7348 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You could house transferees only with other transferees, I assume.
03-636 +++$+++ 7349 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
03-636 +++$+++ 7350 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that -- is that too hard to figure out?
03-636 +++$+++ 7351 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's possible, Your Honor. That currently is not the practice, but that is possible.
03-636 +++$+++ 7352 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Grunder, is this policy a -- an unwritten policy of California?
03-636 +++$+++ 7353 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is -- yes, it is a practice. I wouldn't characterize it a policy. It's a practice.
03-636 +++$+++ 7354 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ An admitted practice but not written.
03-636 +++$+++ 7355 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
03-636 +++$+++ 7356 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And is -- does any other State have such a policy, written or otherwise?
03-636 +++$+++ 7357 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, they do, Your Honor, and I would like to address that. The two largest States of inmate population, California and Texas, together comprise about 300,000 inmates, which is about 20 percent of the total inmate prison population in the United States, including the Bureau of Prisons. Those two States have a similar policy. In addition, Oklahoma --
03-636 +++$+++ 7358 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is Texas' policy? Is that in writing?
03-636 +++$+++ 7359 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I believe it is, Your Honor. When Texas was subjected to the integration decree, the one area of the prison that was not part of the decree that they did not require them to integrate was the area that is the equivalent of our reception center. There -- there in --
03-636 +++$+++ 7360 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is in the briefs? I don't remember it from the briefs. Did -- did you discuss this in --
03-636 +++$+++ 7361 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, it is in the briefs. It's -- it has to do with the Trulson study, and the Trulson study indicated that the intake diagnostic centers of Texas were not required to be integrated.
03-636 +++$+++ 7362 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. If we -- if we exclude Texas and California, on your recording, we've still got 80 percent of the -- the prison population in the United States, and apparently neither the Federal prisons nor any State does -- apart from Texas, has this policy. Why -- I mean, how do you account for the fact that there doesn't seem to be any evidence that -- that they are having explosive incidents involving new members based upon racial animosity?
03-636 +++$+++ 7363 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, actually there's another State, Oklahoma, which has a very similar policy that says that --
03-636 +++$+++ 7364 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. We've still got 47 States left. How -- how do you explain the fact that -- and -- and some of them don't have your racial problems. There's no question about it. I come from one that does not. But some do. And -- and how do you explain the fact that there is no sort of confirmatory record of what happens when you don't follow your policy?
03-636 +++$+++ 7365 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the answer is that they don't have the same problems that California has. California has the most prison gangs, the -- they are race-based. It's an extraordinarily difficult situation. And even the Bureau of Prisons takes race into account when it balances its prisons and that's in the United States' brief.
03-636 +++$+++ 7366 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I go back to Texas? Because one of the pieces of information that was featured by the other side was this study in Texas that showed a decline in interracial violence when there was an increase in racial integration. So that empirical study showed just the opposite, that when you integrate, you get less violence than when you separate.
03-636 +++$+++ 7367 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. The Trulson study, however, only looked at inmates after they had left the reception center, only looked at inmates in -- in the integrated settings of the prison, equivalent to the areas that California integrates. So we don't dispute that once you have enough individualized information about an inmate, then you can house them according to an individualized information.
03-636 +++$+++ 7368 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On the individualized, there was something that I didn't grasp. You say we don't know anything about these people, so we have to have that 60-day period to find out about them. The presentence report we're told accompanies the conviction, the prisoner's conviction. So the presentence report will have a fair amount of information about the offender, will it not?
03-636 +++$+++ 7369 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would have a fair amount of information. However, in California, the presentence report does not always accompany the inmate and frequently does not. It follows some period of time later from the county.
03-636 +++$+++ 7370 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But again, that's the kind of administrative problem that would seem easily fixable. I thought the -- the rule or the regulation was that the presentence report is supposed to accompany the conviction.
03-636 +++$+++ 7371 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the fact of the matter is, Your Honor, the counties aren't preparing the presentences -- presentence reports in a timely fashion, and -- and they're not sending them --
03-636 +++$+++ 7372 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, maybe something should be done about that.
03-636 +++$+++ 7373 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, with the counties, perhaps. But another issue with the presentence report is it doesn't deal with in-prison behavior, and that's what the prison officials need a -- need time to take a look at, is how the inmate is going to react once they get in the prison environment, which is a wholly different environment than a jail environment.
03-636 +++$+++ 7374 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask what's probably a stupid question? We're concerned, I suppose, about say, a black prisoner who's just coming into prison for the first time and you hope he won't join one of the black gangs. So wouldn't the safest thing to do for the first 20 days is to put him with a cellmate who's not black?
03-636 +++$+++ 7375 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, because in prison the animosity between the gangs is purely race-based, and that inmate may be subjected --
03-636 +++$+++ 7376 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Between the gangs. But I'm assuming a new prisoner who you have no information about. Do you presume he's a member of a gang or presume he's somebody who may not be a member of a gang?
03-636 +++$+++ 7377 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's not a presumption that the person is a member of the gang. But there is a presumption --
03-636 +++$+++ 7378 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if he's not a member of the gang, isn't the danger that he'll become affiliated with the gang increased by insisting on putting him with the same race as -- as he is?
03-636 +++$+++ 7379 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That may be, but there is also a danger that if he is housed interracially and subjected to gang pressures on the yard, that he will then be in a situation to go back to his cell, when the door is closed and the lights are out, and commit violent acts upon his cellmate at -- because of pressures that he's receiving from members of his own race.
03-636 +++$+++ 7380 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, you -- you have never -- no evidence that that's ever happened because you've never tried it.
03-636 +++$+++ 7381 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the reception centers, no. The -- it has been a policy of not cross-racially housing the inmates in the cells only. That's correct, Your Honor.
03-636 +++$+++ 7382 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You -- you said a second ago that there's a significant difference between the conditions in the jails and the conditions in -- in the prisons. Is that significant difference the -- the organization of -- of racially based gangs in the prisons as distinct from the jails?
03-636 +++$+++ 7383 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I think that's true. And there's also a difference I think in the attitude of -- of the inmates when they're in -- in a state of flux in a jail as opposed to when they arrive to serve their many years-long sentence, in the case of Mr. Johnson, 37 years to life. And then I think the reality sets in and -- and things do change. Prison is very different.
03-636 +++$+++ 7384 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Apart from the gang situation, is there reason to think that their minds change in the sense of inclining them to interracial violence simply because they say, gee, I'm in for a long time?
03-636 +++$+++ 7385 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I -- I believe it is.
03-636 +++$+++ 7386 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And do we have any evidence to that effect?
03-636 +++$+++ 7387 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the reality in prison is that people are pressured to join gangs and to -- you either hang with your own or you don't and --
03-636 +++$+++ 7388 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that -- I mean, that goes back to the gang membership situation. It seems to me that's your strongest argument.
03-636 +++$+++ 7389 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, it's true. But even for members -- people who are not actually members of the gang are subjected to the gang pressures. For instance, if -- if there was going to be a fight, a planned fight, that was going to break out on a yard, members of a prison gang would tell members of -- of their same race that once the fight breaks out, you better be with us because if you're not, we'll deal with you later. And that's even for people who aren't gang members. So the racial pressures in prison are very, very severe. Something --
03-636 +++$+++ 7390 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it still seems to me that a new inmate is more likely to be subjected to that pressure with the -- his cellmates than with somebody out in the yard.
03-636 +++$+++ 7391 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And he may well be, Your Honor, but what --
03-636 +++$+++ 7392 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it seems to me insurance against him joining a racial gang is cell -- cell him with somebody who's not of the same race.
03-636 +++$+++ 7393 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But you -- but to do that would be to invite danger to the -- to the other inmate. The -- the level of interracial violence in prison is high, and that can't be disregarded. And if we weren't here today --
03-636 +++$+++ 7394 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How does it compare to intraracial violence?
03-636 +++$+++ 7395 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There hasn't, as -- as we've talked about, been a problem with interracial violence in the cells because they're not housed that way. There are problems with --
03-636 +++$+++ 7396 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean --
03-636 +++$+++ 7397 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In general.
03-636 +++$+++ 7398 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- overall.
03-636 +++$+++ 7399 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are some problems with intraracial violence, but they're generally more founded in personal relations as opposed to a race-based -- you know, some other sort of animosity. The same sort of reasons that people have fights on the outside --
03-636 +++$+++ 7400 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there -- is there any figures on the prison population as a whole, the incidents of interracial violence as opposed to intraracial violence?
03-636 +++$+++ 7401 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. In this case there's -- it's not in the record.
03-636 +++$+++ 7402 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And do we know -- does this record tell us what happens after the 60 days? To what extent where there are double cells, does the same race policy, although not formally adopted, continue? After the 60 days, what is the incidence of different race double-celling and same race double-celling?
03-636 +++$+++ 7403 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What we do have in the record, Your Honor, is that the policy and the practice does not apply after the 60 days. Inmates are allowed to request a cell together and can choose their own cellmates so long as the other cellmate agrees.
03-636 +++$+++ 7404 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So we just don't have any information whether this line between the 60 days is imaginary.
03-636 +++$+++ 7405 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do, Your Honor. The -- it is not -- it does not happen outside of the reception center cell practice. Once they get to their permanent housing assignment, they may choose their own cellmates.
03-636 +++$+++ 7406 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When -- when they do choose that, do you respect a choice to cell with -- with another member of -- of the -- of -- do you respect the choice when two members of a gang want to cell together?
03-636 +++$+++ 7407 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Two members of the same gang?
03-636 +++$+++ 7408 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Same gang.
03-636 +++$+++ 7409 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it would depend on if they are -- what level of gang membership they are. California has a very complex system for what -- doing what they call validating gang membership. If they are a validated gang member, generally they are sent to a special prison, and yes, they are housed with members of their own gangs in a very high security setting.
03-636 +++$+++ 7410 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you -- do you have a -- do you have any record of -- of requests by different -- members of different gangs to cell together?
03-636 +++$+++ 7411 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't have any record of that, but I -- I can tell you that if members of opposing gangs were to request a cell together, first of all, they would both have to agree, which would be highly unlikely, and there -- it would probably be viewed with a bit of suspicion as to what was going on. But maybe if -- if they had disavowed their gang membership and -- and these particular people could get along, it would certainly be considered. The -- the object, once they get to the permanent housing, is cellmate compatibility. So there are a lot of things that are looked at.
03-636 +++$+++ 7412 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Grunder, do you agree with opposing counsel that even if evaluated under the Turner rule, properly applied, that California's policy would not survive?
03-636 +++$+++ 7413 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do not agree with counsel. I believe that the Ninth Circuit did properly apply the Turner standard in this case and that California would pass and does pass the Turner test in this case.
03-636 +++$+++ 7414 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It wouldn't -- it wouldn't pass if -- would it, if we do not accept your argument that California cannot efficiently get records sent along with inmates so that, at the time at least of transfers, the prisons are in a position to know what they're getting? If we -- if we say, look, we're not going to accept the argument from administrative efficiency, then you can't survive Turner, can you?
03-636 +++$+++ 7415 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it may be more than just administrative efficiency because every prison is different and there are different gang pressures at each prison. And I think it's important for the prison to be allowed an opportunity to bring that transferred inmate in and look at them and how they're going to fit into that prison and have a chance to evaluate their records. It's true that --
03-636 +++$+++ 7416 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's --
03-636 +++$+++ 7417 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor.
03-636 +++$+++ 7418 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. I don't want to cut your argument short, but here's what's bothering me. I -- I can see there's a possible plausibility in what you're saying, but in fact is that the reason? Is there any evidence in the record to the effect that that is necessary in transfer situations?
03-636 +++$+++ 7419 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The officials have deemed that that is an appropriate policy. I think the record is a bit scant in this case.
03-636 +++$+++ 7420 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Look, if -- if we accept that officials have deemed it, we will not have many arguments in -- in this Court. I mean, they will be over before they start. I -- I mean, we've got to have something more than simply the decision under attack. Is there anything more in this case in -- with respect to the transferee situation?
03-636 +++$+++ 7421 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not with respect to the transferees, Your Honor, and it's true that the transfer policy certainly is more in jeopardy under the Turner standard. But the -- the overall policy of considering race when there is a -- a lack of information certainly would pass the Turner standard and should pass the Turner standard as it was properly applied by the Ninth Circuit.
03-636 +++$+++ 7422 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You said that --
03-636 +++$+++ 7423 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask just one other question about the -- the purpose you're trying to achieve? Is it to protect the two inmates who are first celled together from fighting with one another, or is it to avoid the danger that one of them will somehow start a riot later on in -- in the general prison population?
03-636 +++$+++ 7424 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's multi-fold, Your Honor.
03-636 +++$+++ 7425 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's what?
03-636 +++$+++ 7426 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's multi-fold. The purpose is multi-fold. First, yes, it is to protect the inmate from -- from having harm done to him in the cell, which is a very difficult area to protect. It's a small area and not easily visible into the -- into the cell directly. Also, that's where they sleep, so at some point the lights will be out. So it's a very difficult situation. Also, they're afraid -- and this is in the record from the testimony of the officials -- that there will be a ripple effect and that the interracial violence, if they were to cell them together, would spill out onto the yards and create the exact ripple effect that Turner -- is one of the considerations in the Turner test.
03-636 +++$+++ 7427 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There was something --
03-636 +++$+++ 7428 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask -- excuse me. Go ahead. I want to ask one other question. You -- you mentioned the Texas system and you discussed it in your brief. Is that correct? I didn't find it in your discussion as to the Texas case.
03-636 +++$+++ 7429 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honors, at page 41 of the brief. It would be the -- the second paragraph where they examine double-celling only after initial screening. And also note 13 of the Trulson study indicates that it did not apply in Texas' equivalent of California's reception centers. The Turner standard is the appropriate standard here because it does give the prison officials --
03-636 +++$+++ 7430 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let -- let me ask --
03-636 +++$+++ 7431 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry.
03-636 +++$+++ 7432 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- about that standard at least as the Ninth Circuit applied it. They said that you presume the practice constitutional and the challenger has the burden to show that if there were no segregation by race, that violence would not increase. Now, how does someone go about proving that negative?
03-636 +++$+++ 7433 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in this case the inmate put forth no experts of any kind. There was an opportunity for the inmate to rebut the evidence put forth by the prison officials, and -- and there was no evidence submitted. So in this case he didn't --
03-636 +++$+++ 7434 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But how would an inmate who was objecting to this racial segregation go about proving such a case? You said one would have to rely on experts.
03-636 +++$+++ 7435 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would be one way, Your Honor.
03-636 +++$+++ 7436 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so one could put in that Texas study, but you said that wouldn't be good enough.
03-636 +++$+++ 7437 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the Texas study doesn't -- doesn't apply to the initial intake process.
03-636 +++$+++ 7438 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you -- you -- supposing an inmate who would have to call a bevy of experts that he has no wherewithal to -- to pay for -- I mean, you are essentially saying an inmate cannot challenge this policy.
03-636 +++$+++ 7439 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. Actually this policy was applied in a California case after the Johnson case was decided in California to strike down a race-based prison policy. So there -- there certainly are instances when the inmate could --
03-636 +++$+++ 7440 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I asked how would an inmate prove this, and you said you would need experts. So for experts, you need money to pay experts. How does an inmate do that?
03-636 +++$+++ 7441 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the same way the inmate would do it in any other litigation that is brought by an inmate. The burden is on a litigant to prove their case, and it doesn't change because that litigant is in prison.
03-636 +++$+++ 7442 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, why -- why should you use the Turner standard? The Turner standard says to the prison, you can do this as long as you have a modestly good reason. Strict scrutiny says you have to have a very good reason. With free speech, of course, people understand prisons are different. Of course, people's speech rights will be controlled and it won't hurt the rest of society. With racial discrimination, as you heard your opponents argue, it's a terrible symbol, a symbol that we would tolerate without the best of reasons discrimination, invidious discrimination, based on race, which is divisive to the whole society. Now, that they say is a very good reason for not applying the Turner standard but, rather, applying strict scrutiny, which gives you freedom to discriminate on this basis if you can prove you really have to.
03-636 +++$+++ 7443 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Unlike in a non-prison setting, there aren't other rights to be balanced. In the prison setting, not only are you balancing the inmate's right to be free from discrimination, but you're balancing the -- the rights of all inmates to be free from harm, and as well as the prison officials' duty to protect them from harm. And that is what --
03-636 +++$+++ 7444 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That -- that same argument could have made in -- in arguing about racial segregation in the schools and -- and in the military and everything else. That's -- that's not an acceptable answer.
03-636 +++$+++ 7445 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there's -- there's no -- the prison officials here have an affirmative duty to protect the other inmates under the Eighth Amendment, and --
03-636 +++$+++ 7446 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you accept that this is invidious discrimination on the basis of race? What -- what -- why -- why do you think it's invidious?
03-636 +++$+++ 7447 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't think it's invidious, Your Honor. As a matter of fact --
03-636 +++$+++ 7448 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's not affirmative action.
03-636 +++$+++ 7449 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This is not affirmative action, no. It is not invidious, Justice Scalia. It is simply one consideration of race to control violence in prison, and as the Bureau of Prisons uses in -- in its prisons, they in the United States' brief say that they consider race to maintain racial balance in their prisons for the purpose of diversity. California also considers race in maintaining racial balance in its prisons, not primarily for the purpose of diversity, but for prison safety to make sure that no one group takes over a prison, thus putting members of another group in a vulnerable situation. There are many circumstances when -- when race should be --
03-636 +++$+++ 7450 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that -- is that invidious?
03-636 +++$+++ 7451 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it is not, Your Honor.
03-636 +++$+++ 7452 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is it affirmative action?
03-636 +++$+++ 7453 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. There are many instances in which race needs to be considered on a day-to-day basis in prison. For instance, when the prisoners line up to go to the exercise yard, if 10 white prisoners line up first and the 11th prisoner in line is an African American, it would be extraordinarily ill-advised to release those prisoners in the manner in which they have lined up to go to yard. It would require some reshuffling and maybe even some shifting of prisoners from yard to yard based on their race because to do that would put the minority member at extreme risk. Turner is the appropriate test here because courts --
03-636 +++$+++ 7454 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I -- this may -- may be important to me for understanding your argument. I -- I didn't quite understand the hypothetical. You -- you want him to keep the place in line or it's dangerous for him to keep the place in line?
03-636 +++$+++ 7455 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would be dangerous for the officer to release the inmates onto the yard in the manner that they had self-arrayed because then you would put 10 members or more of one group on the yard and then introduce another member to the yard who was not a member of that group, and that would be very dangerous for the -- the sole person on the yard.
03-636 +++$+++ 7456 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And do -- do other prison systems adopt similar policies to try to keep the races mixed generally in --
03-636 +++$+++ 7457 +++$+++ TRUE +++$+++ MS. GRUNDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, they do, Your Honor. As I pointed out, Bureau of Prisons being one. As a matter of fact, the U.S. Department of Justice's National Corrections Institute statistics -- and this is not a part of the record -- indicate that 96 percent of all States separate prisoners based on disruptive group or gang orientation. So California is not alone in that. It's a -- it's done to prevent violence to other prisoners. In sum, Turner is the only test that provides the flexibility that prison officials need to safely manage their prisons and protect inmates from harm. The Court should apply it here and affirm the lower court. Thank you.
03-636 +++$+++ 7458 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Grunder. Mr. Deixler, you have about three and a half minutes.
03-636 +++$+++ 7460 +++$+++ FALSE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the hypotheticals presented by the State of California, when applied in the context of this case, demonstrate the danger of this position of segregation. The petitioner in this case is not a gang member. He's been in the California prison system since 1987 and before. When he reported to the inmate reception center at Chino in 1987, he had already three presentence reports which are reflected in -- in the record of this -- of this case at the joint exhibit 259. He's been transferred five times since then -- since then. There's no record of his having had interracial violence ever during the time that he was in prison. And it is his view, as articulated in his deposition at page 109 of the joint appendix, that he is put into peril because he is an African American who is unable to cross race lines and unable to reach out for support in a heavily racialized setting for other persons who are not African Americans and who are not gang members. So he's been marginalized and treated, based upon his race, in a de jure way when he's transferred for the 60-day period. And incidentally, the reference to a 14-day period is not borne out by the record. The regulation in the State of California specifically provides that this organization or evaluation group has to convene within 14 days, but not have to reach a decision with regard to transfer characterization and classification in 14 days. But -- but the petitioner in this case, because he's black and has no opportunity to cell initially with a white person or a Hispanic person, is then confined to being in this small group of African Americans who are not gang members and who are unable to have an affinity group in which they will feel safe within the California prison system. The California --
03-636 +++$+++ 7461 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The same thing would happen to a white. It's not because he's black. I mean, this -- right? The same thing would happen to a white.
03-636 +++$+++ 7462 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. A white --
03-636 +++$+++ 7463 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ He'd be able to make the same argument.
03-636 +++$+++ 7464 +++$+++ TRUE +++$+++ MR. DEIXLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ A white who, for reasons of safety, wished to house with an African American, would be denied that opportunity under California's policy, and the same with an Hispanic who felt it safer for him to house with a black. He could not cross racial lines based upon the evidence in this case, Justice Scalia. That's correct. And the danger which is created in my judgment by a reliance upon a Turner standard in this circumstance is that all that needs to be done is a little bit more of tinkering with the idea of the equivalence between race and gang which cannot exist in this record. And were that to happen, we will create a circumstance where the very arguments rejected in Lee, indeed the very argument advanced by the State of California in this case, will once again be raised time and again, and we will be faced with a circumstance not too far down the slippery slope where, for convenience or for other reasons or for purely invidious reasons, States will be able to return to an era of segregation. This Court's history has demonstrated a commitment to march the country away from the road of segregation, and there should be no turning back. This is a case in which the Ninth Circuit has erred. The judgment of the Ninth Circuit should be reversed. The Court should determine that strict scrutiny should apply, and it should determine that Petitioner Johnson's equal protection rights were violated.
03-636 +++$+++ 7465 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Deixler. The case is submitted.
03-710 +++$+++ 7469 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument in No. 03 710, Devenpeck against Alford. Ms. Hart.
03-710 +++$+++ 7471 +++$+++ FALSE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: The Ninth Circuit invalidated Mr. Alford's arrest and held the arresting officers in this case personally liable for damages based on the closely related offense doctrine. The doctrine is contrary to fundamental Fourth Amendment principles that probable cause is an objective inquiry based on all of the facts and circumstances known to the officer at arrest. In contrast, the closely related offense doctrine is a subject of inquiry that limits probable cause only to those facts and circumstances closely related to the offense that the arresting officer announces at arrest. Under the doctrine, then if two officers observe precisely the same facts and circumstances and arrest the suspect, the arrest in one case can be valid and in the other invalid based only on the officer's subjective legal evaluation --
03-710 +++$+++ 7472 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Hart, is there any requirement in Washington or generally that an officer state the grounds for the arrest to the person being arrested at the time?
03-710 +++$+++ 7473 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice O'Connor, there's no constitutional requirement and there is no requirement in -- in Washington that that be done. A number of States do require that it be done statutorily and many of those States also --
03-710 +++$+++ 7474 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We're dealing here with a case from the State of Washington, and you assert there is no such requirement in Washington.
03-710 +++$+++ 7475 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is not.
03-710 +++$+++ 7476 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But in this case when the respondent was arrested, he was informed by the officer that the arrest was for making a tape recording of the conversation?
03-710 +++$+++ 7477 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
03-710 +++$+++ 7478 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it turns out -- do you concede that that was, in fact, not a lawful grounds for arrest?
03-710 +++$+++ 7479 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- at this point, the question of the --
03-710 +++$+++ 7480 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you concede that --
03-710 +++$+++ 7481 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor --
03-710 +++$+++ 7482 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that in the State of Washington, that it is perfectly lawful to record the conversation with the police?
03-710 +++$+++ 7483 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This -- the facts of this particular case have not been before a -- a court in Washington, Your Honor.
03-710 +++$+++ 7484 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I'm asking you. What is your view? Is it lawful or not for an individual to record, tape record, the conversation with a policeman on the occasion of a stop?
03-710 +++$+++ 7485 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I believe in this case there would be probable cause for an officer to believe it was and therefore effect an arrest. I don't believe that the -- the question has been answered in Washington, and I believe there are good grounds to argue that it would be permissible and that, indeed, unlike the decision in State v. Flora, there were distinguishing circumstances here, including the absence of passers-by on the scene.
03-710 +++$+++ 7486 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, do we decide this case on the understanding that it was lawful to make the recording? Is that the basis in which we decide this case?
03-710 +++$+++ 7487 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. We have not raised the Privacy Act as an issue before this Court.
03-710 +++$+++ 7488 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, for argument --
03-710 +++$+++ 7489 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, Washington also has an anti-stacking policy, does it?
03-710 +++$+++ 7490 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The State Patrol does, Your Honor, yes.
03-710 +++$+++ 7491 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is -- is that just a rule of the patrolmen in the State?
03-710 +++$+++ 7492 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It --
03-710 +++$+++ 7493 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They won't arrest someone for several charges?
03-710 +++$+++ 7494 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's an agency policy and troopers with the Washington State Patrol are trained to it.
03-710 +++$+++ 7495 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, is it an agency policy that the State endorses, and if so, why -- why do you endorse or adopt the policy?
03-710 +++$+++ 7496 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I believe that -- that stacking charges really is -- there are good reasons to endorse the policy. One is that it's not a particular --
03-710 +++$+++ 7497 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Not -- not stacking charges you mean.
03-710 +++$+++ 7498 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry. Not stacking charges, Your Honor, is -- is an -- a sound policy for a number of reasons. First, it's not a particularly effective or efficient use of law enforcement resources, but perhaps more importantly, it can have significant negative consequences for people who are subject to arrest in terms of their ability -- the amount of bail, their ability to post bail, and to secure a pre-trial release.
03-710 +++$+++ 7499 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, is that -- I mean, is that the -- the real basis for the policy, that we -- that Washington does not want to make it difficult for -- for arrestees to raise bail?
03-710 +++$+++ 7500 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I can't tell you precisely what the Washington State Patrol's thinking is on it. My impression is that, in part, they believe that -- that the appropriate law enforcement response is -- is to determine whether there's probable cause and to arrest and leave the sorting out of the charges to be pressed actually by the State to the prosecuting attorney.
03-710 +++$+++ 7501 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What do you make of the argument that unless the cause of the arrest is, number one, stated and, number two, a -- a cause that a defendant can rely on, that in any case like this in which the stated grounds of the arrest turn out to be -- we will assume, turn out to be inadequate, the police will always, particularly in traffic cases, be able to come up with something later on to justify the arrest? What -- what do you make of that argument?
03-710 +++$+++ 7502 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I think what I would make of it, Justice Souter, is that provided that there's probable cause for arrest, that the fact that there may be a basis to -- to stop a number of -- of motorists is not -- is not relevant. And in part, I believe that, for example, this Court's decision in Whren indicates that so long as there is probable cause for arrest, the reason for the --
03-710 +++$+++ 7503 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that was for an -- an arrest in which, so far as we can tell, the -- the stated grounds for the arrest were those for which there was probable cause. And I think one of the concerns underlying the argument that I asked you to comment on is that if the -- if the police, in effect, have -- have discretion ad lib afterwards to come up with new grounds for the arrest, there's -- there's going to be a kind of a basic corrosion in the integrity of the arrest process and in the confidence of people to believe that the police are really acting in good faith when they make an arrest.
03-710 +++$+++ 7504 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, the -- if there is probable cause for arrest, that is the concern of the Fourth Amendment, and I -- I don't believe that the -- the concern -- I don't know that there's any empirical evidence that the concern that you are expressing has been borne out.
03-710 +++$+++ 7505 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That -- that may be -- that may be the -- the best response. And I take it, so far as you know, there -- there are no studies that have gone into this on an empirical basis. Is that correct, so far as you know?
03-710 +++$+++ 7506 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not as -- as far as I know, Your Honor. But I would also suggest to you that the notion that an officer would effect an arrest without any basis for the arrest on a hope that a prosecuting attorney can come up with a basis for the arrest --
03-710 +++$+++ 7507 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. The -- the argument is that he thinks he does have a ground. It turns out that he's wrong. Unless he is very unimaginative, he'll find another one. It's not that he arrests saying I have no basis to arrest this person, but I'll think of something later. It's -- it's the -- the problem is, I think -- or the argument, I think, is directed to a case like this.
03-710 +++$+++ 7508 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, and -- and Your Honor, I -- I do believe that the concern of the Fourth Amendment, which is the only constitutional provision at issue in this case, is that there in fact be a reasonable basis for arrest and that subsequently or promptly subsequently or prior to arrest be tested by a neutral magistrate. And that's the only concern.
03-710 +++$+++ 7509 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Hart, I'm -- I'm not sure what you mean by -- that there has to be probable cause for arrest. Do you mean objectively, or do you mean on the basis of the facts known to the arresting officer? I mean, let's -- let's assume an officer stops a car for a broken taillight, and it turns out the car doesn't have a broken taillight. All right? So that basis is wrong. However, the car also has an expired inspection sticker, which the officer didn't know about. Was there a probable cause for arrest, as you're using the term here?
03-710 +++$+++ 7510 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If there was probable cause based on the -- if there was reason based on the objective facts and circumstances --
03-710 +++$+++ 7511 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it doesn't matter whether he knew those facts and circumstances.
03-710 +++$+++ 7512 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that -- known to the officer at arrest.
03-710 +++$+++ 7513 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, so it has to be known.
03-710 +++$+++ 7514 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-710 +++$+++ 7515 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So in my example, the arrest would be invalid because at the time of the arrest, he didn't know about the sticker.
03-710 +++$+++ 7516 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absent the circumstances at arrest giving rise to a reasonable basis to believe that a crime had been committed, there would not be probable cause.
03-710 +++$+++ 7517 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you're saying it's the facts known to the officer --
03-710 +++$+++ 7518 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Precisely.
03-710 +++$+++ 7519 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that have to establish the probable --
03-710 +++$+++ 7520 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's --
03-710 +++$+++ 7521 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Once -- once you establish that limitation, are you willing to accept the horrible that -- that Justice Souter proposed to you? Is it -- is it, indeed, so easy to -- to gin up some other cause for arrest when you used a mistaken cause? I don't know that it's all that easy.
03-710 +++$+++ 7522 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is not and -- and -- it is not. And that was the -- the reason why I indicated in response to Justice Souter's question that I do believe that it is not all that easy. And I -- I believe that one of the foremost commentators in this area has termed that notion fanciful for the reason that it is -- it is stopping on a hope and a prayer that something will provide justification for that later --
03-710 +++$+++ 7523 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That was LaFave. You cited LaFave in your brief for that proposition.
03-710 +++$+++ 7524 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-710 +++$+++ 7525 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You -- you made the point, in answer to Justice O'Connor, that a police officer in Washington is not required to divulge on the spot the reason for the arrest. What is the point at which the arrestee under Washington law is entitled to know the cause of the arrest?
03-710 +++$+++ 7526 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At charging, Your Honor, there -- there -- the -- the individual who has been arrested, as a matter of the Sixth Amendment, would be entitled to know the charges against him or her, and the officer is required, in a warrantless arrest, to appear before a neutral magistrate and have the probable cause for the arrest tested --
03-710 +++$+++ 7527 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it -- is it at the arraignment or the -- at the earlier booking in the police station?
03-710 +++$+++ 7528 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry. I'm not following your question.
03-710 +++$+++ 7529 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it -- is it -- is the time when the arrestee must told you are being arrested for X reason, is that when the arrestee appears before the magistrate or is it earlier when he's brought into the police station and he's booked? The arrest is booked. At which point?
03-710 +++$+++ 7530 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Neither, Justice Ginsburg. The arrestee would be entitled constitutionally to know the charge against him or her when criminal -- a criminal prosecution is commenced by charging. For the most part, that is done in Washington by an information or a charge filed by a prosecuting attorney.
03-710 +++$+++ 7531 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You mean he could be held until a charge is filed without being told why he's being held?
03-710 +++$+++ 7532 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens --
03-710 +++$+++ 7533 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that could be a week or 2.
03-710 +++$+++ 7534 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it would be -- he would be held in that case following a determination by a neutral magistrate that there are grounds to hold him. And at that point --
03-710 +++$+++ 7535 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would the magistrate keep those grounds secret?
03-710 +++$+++ 7536 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They would not be secret, Your Honor, no.
03-710 +++$+++ 7537 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, wouldn't the magistrate tell him why he's being held?
03-710 +++$+++ 7538 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The magistrate would tell the -- the arrestee why he's being held, provided the arrestee is present for that particular procedure.
03-710 +++$+++ 7539 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And how soon is he entitled to appear before the magistrate?
03-710 +++$+++ 7540 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry?
03-710 +++$+++ 7541 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How soon after his physical arrest does he have a right to appear before the magistrate?
03-710 +++$+++ 7542 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My -- my recollection under Washington's law would be -- 72 hours is the time for the charge.
03-710 +++$+++ 7543 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So for 72 hours, he could be held incommunicado without knowing why he was arrested.
03-710 +++$+++ 7544 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But -- but for that period, the arresting officer would have had to -- during the 48-hour period at the outset, that this Court discussed in Riverside, the probable cause for the arrest would be tested by a neutral magistrate.
03-710 +++$+++ 7545 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You also said that you thought this case is distinguishable on the legitimacy of taping the conversation with the police officer on the highway. Why -- why do you think this is distinguishable from the Washington Intermediate Appellate Court decision that the -- that the -- that Alford wanted to show to the police officer?
03-710 +++$+++ 7546 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first of all, again, Justice Ginsburg, the Privacy Act issue is not one that we have raised before this Court. But -- but the reason that I would suggest it is distinguishable is that in a subsequent case considered by the Washington State Supreme Court called State v. Clark, the court look at Flora, the Intermediate Appellate Court case, and -- and termed it as a case that said you do not have a private conversation when it is open to passers-by. And in Flora, there was another individual present at the scene and who was, in fact, subsequently arrested for interfering with the arrest in the Flora case. So there is, all I'm suggesting, at least some grounds for distinguishing the Flora case for that reason.
03-710 +++$+++ 7547 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you know if there's been any instruction in the State of Washington to police following that Flora decision about taping -- about arresting people for taping conversations with police officers?
03-710 +++$+++ 7548 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do believe there has, Your Honor. It's not a matter of record, however, in the -- against arresting for that reason.
03-710 +++$+++ 7549 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The flashing headlights which was -- there was a citation. There was an arrest for the tape recording and a citation for the flashing headlights. Could there have been a -- an arrest for the flashing headlights, or is that a lesser category of offense that's not an arrestable offense?
03-710 +++$+++ 7550 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under Washington law, the flashing headlights, the wig-wag lights, in and of themselves would not be an arrestable offense. It would be a citable offense. The impersonating offense involved in this case would be arrestable, and the wig-wag headlights would play a part in that, however.
03-710 +++$+++ 7551 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But he was never -- never charged with the impersonating an officer, only with the flashing headlights. Is that right?
03-710 +++$+++ 7552 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
03-710 +++$+++ 7553 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The -- the case, as far as I'm thinking of it at the moment, comes down to everybody is agreeing -- well, no. It's -- you go ahead because you want to reserve that probably.
03-710 +++$+++ 7554 +++$+++ TRUE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor.
03-710 +++$+++ 7555 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Comey.
03-710 +++$+++ 7557 +++$+++ FALSE +++$+++ MR. COMEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: The validity of a police action under the Fourth Amendment turns upon an objective assessment of the facts viewed through the prism --
03-710 +++$+++ 7558 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do the facts, on your view, have to be known to the officer?
03-710 +++$+++ 7559 +++$+++ TRUE +++$+++ MR. COMEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-710 +++$+++ 7560 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is -- is there -- and correct me if I'm wrong. In -- in cases in which we're inquiring into probable cause for a warrantless search, we give the government credit for any fact known to any officer, don't we?
03-710 +++$+++ 7561 +++$+++ TRUE +++$+++ MR. COMEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-710 +++$+++ 7562 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why wouldn't we have the same rule? Why shouldn't we have the same rule with respect to facts known to any officer when one officer makes an arrest?
03-710 +++$+++ 7563 +++$+++ TRUE +++$+++ MR. COMEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I suspect, Your Honor, that the Government would urge such a rule if it were at issue in case.
03-710 +++$+++ 7564 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it's not urging it here.
03-710 +++$+++ 7565 +++$+++ TRUE +++$+++ MR. COMEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't see it at -- at issue in this case, Your Honor.
03-710 +++$+++ 7566 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't think it is. I just want to know where we're going.
03-710 +++$+++ 7567 +++$+++ TRUE +++$+++ MR. COMEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's -- that's correct, Your Honor. The -- the Government's position, as with the State of Washington's position, is that the -- the analysis is simply did the facts known to the officer, viewed through the prism of an objectively reasonable officer, establish probable cause. And that to make an evaluation of the arrest turn upon the officer's subjective assessment of those facts -- in other words, the working of his brain, the crunching of those facts that results in the spitting out of a legal conclusion -- is contrary to this Court's precedent and guts the objective reasonable test, and would make, instead, the validity of a Fourth Amendment action turn upon whether the officer is particularly smart, whether he's new, whether he's nervous, whether he says nothing at all or whether he decides to say, you're under arrest for everything listed in the Washington code book. Under those circumstances, the results would be different. The -- the concern that Your Honor raised about police officers engaging in a post hoc rationalization I respectfully suggest is not a concern that is rooted in reality because the facts continue to drive the analysis. Whether or not a police officer is right at the arrest scene in invoking a particular statute, if that turns out to be incorrect, it is still the facts that were known to him that must support probable cause for some other offense.
03-710 +++$+++ 7568 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So far as you know, there -- there are no empirical studies looking into this particular horrible?
03-710 +++$+++ 7569 +++$+++ TRUE +++$+++ MR. COMEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I'm not aware of any, Your Honor. I also suggest that if this were the concern that the Ninth Circuit were looking to address by the closely related offense doctrine, the remedy sweeps far too broadly in both directions. It punishes officers who at the scene engage in remarkable good faith conduct. I mean, these two police officers I think are what the public would hope these police officers were, looking at a code book at the roadside, calling a prosecutor late at night, trying to get it right. They are punished under this doctrine. Those that are rewarded are those who are smart enough, perhaps a veteran, perhaps someone who has read the Ninth Circuit's cases, to stay completely silent, to say nothing at all, knowing that he's going to be fine. He needs to engage in no --
03-710 +++$+++ 7570 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Comey, I think you rely, in part at least, on this Court's case in Whren --
03-710 +++$+++ 7571 +++$+++ TRUE +++$+++ MR. COMEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-710 +++$+++ 7572 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- for the result for which you argue. But in Whren, the stated reason for the stop, traffic enforcement, was lawful, and we didn't have to look any further. In this case, the stated reason I think we assume, at least according to the trial judge's instruction to the jury, was unlawful. Does that impair the reliance on Whren?
03-710 +++$+++ 7573 +++$+++ TRUE +++$+++ MR. COMEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe it does, Your Honor. I believe that what Whren teaches is that the subjective working of the police officer's mind, his motives, his intentions, his legal assessments, as in other cases, his legal assessment with respect to the extent of a consent to search, or the reason he's boarding a boat, is irrelevant, that that's for courts to do. What matters is what came into an officer's brain, not what came out as a result of his working on it. Because, as I said, that would make law enforcement far from unevenhanded. It would make it depend upon who the officer was at the roadside on any given night. And those similarly situated would be treated very, very differently, depending upon what an officer chose to say. And as I said, silence in a -- in a jurisdiction that's governed by the closely related offense doctrine is the best course.
03-710 +++$+++ 7574 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if -- if we had gone the other way in Whren, we would still have the problem that we have in this case, wouldn't we? Regardless of -- of how an arrest would be justified, the issue here is are the grounds of justification limited to the reason and in most cases the stated reason for the arrest. So we'd have this problem even if Whren had -- had come out otherwise, wouldn't we?
03-710 +++$+++ 7575 +++$+++ TRUE +++$+++ MR. COMEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think we would still be discussing whether the subjective functioning of an officer's mind is relevant for Fourth Amendment purposes, which turns upon whether the action was reasonable in the case of an arrest --
03-710 +++$+++ 7576 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the question here is the scope of the Fourth Amendment inquiry. Can it take in probable cause for reasons other than the reason for the arrest or the stated reason for the arrest? Can it consider other offenses, and we'd have that regardless of -- of Whren, wouldn't we?
03-710 +++$+++ 7577 +++$+++ TRUE +++$+++ MR. COMEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think we would, Your Honor, to the extent that Whren is about motives and this case is about something very closely related, still the inner working of an officer's mind, what legal conclusion he draws from facts.
03-710 +++$+++ 7578 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why is it subjective? I mean, in -- in Whren, the question was finding a hidden motive as distinguished from the motive that was written out. Here, there's nothing subjective about what the officer charged this person with on the spot. He told him. There wasn't anything hidden in his mind. He said, I'm arresting you for X reason, for tape recording. And then they had a whole colloquy. So what the -- what the arrest was for is as objective as it can be.
03-710 +++$+++ 7579 +++$+++ TRUE +++$+++ MR. COMEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would suggest, Your Honor, that his speaking, his invocation of a particular code section is an objective manifestation of an essentially subjective process. And that's illustrated by imagining three stops on that road that night, three Mr. Alfords, exact same facts. In one, the officer is engaged in the process that he engaged in here. In the other two, the officer chooses in the first to say nothing, and in the third, to say -- hold up the code book and say what you did is in here. Everything in here applies to you, wise guy. Now get in the car. In those two other circumstances, complete silence and the table of contents approach, we wouldn't be here. These officers would not have been in litigation for 4 years. That to me demonstrates that it is essentially subjective because it is driven not by the facts, what the defendant did, but by the nature of the police officer. Is he clever? Has he gone to law school at night?
03-710 +++$+++ 7580 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, of course, even in those examples, there could be a difference in what the police officer had actually observed. He might not have seen the safety sticker or the taillight or whatever it is. So you do have some inquiry into the mental processes of the officer in every case.
03-710 +++$+++ 7581 +++$+++ TRUE +++$+++ MR. COMEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. And -- and if -- perhaps my distinction is -- is too homely, but I would say that's about what comes into his mind, into the brain, his senses. Did he see this taillight? Did he see the sticker? Not what comes out of his mouth as a result of the functioning of that brain, his legal brain. The legal work is for the courts looking at an arrest that's been challenged through the prism of an objectively reasonable officer. It does not depend, else Fourth Amendment seizures would be not reasonable, but would vary depending upon the skills of an individual officer from roadside to roadside. And that is utterly inconsistent with this Court's precedent and would, in fact, gut the objective reasonableness test. The Ninth Circuit's rule would lead to dramatically uneven law enforcement. It would, indeed, lead to either stacking or silence, and there's plenty of good reason why an officer or a Federal agent, who are not required to say anything at arrest, might want to inform a defendant of a basis for his arrest and might want to uphold other bases for an arrest, to protect a witness, for example. To drive police officers to the extremes is not in the public interest.
03-710 +++$+++ 7582 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You -- you predicted that this would be in practice very bad. There are some jurisdictions that have the closely related test, are there not?
03-710 +++$+++ 7583 +++$+++ TRUE +++$+++ MR. COMEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. The Ninth Circuit.
03-710 +++$+++ 7584 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the -- outside the Ninth Circuit.
03-710 +++$+++ 7585 +++$+++ TRUE +++$+++ MR. COMEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. I believe the Seventh Circuit as well and the First Circuit.
03-710 +++$+++ 7586 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do we know whether these horribles have occurred there, that the police are booking for everything?
03-710 +++$+++ 7587 +++$+++ TRUE +++$+++ MR. COMEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do not, Your Honor. I -- I know with Federal agents, Federal agents say nothing. They're required to say nothing. They simply bring a defendant in on a warrantless arrest, cuff him, leave him in the cellblock, and then the assistant U.S. attorneys take the matter before a magistrate. So there is -- and that's one of the things that demonstrates the unworkability of this test because there are plenty of jurisdictions, thousands of Federal agents, who are under no obligation to say anything. And so it's hard to see how this test, even to the extent there were a concern about the evil or perceived evil of post hoc rationalization, which I suggest there isn't, this -- how this test would be applied --
03-710 +++$+++ 7588 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In -- in the Federal system, is the arrest based on what the officer knew and -- and see -- and saw at the time?
03-710 +++$+++ 7589 +++$+++ TRUE +++$+++ MR. COMEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. His perceptions, the -- the facts known to the arresting officers.
03-710 +++$+++ 7590 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose he had asked for a gun permit and he sees the gun permit, and he said, well, it's -- that's okay. You've got the permit, but I'm going to arrest you for reckless driving. Then he finds out the driving charge is no good. It can't stand. But then they look at his wallet more carefully and they see the permit is expired. What -- what rule then? At the police station, they -- they see the permit is expired. In other words, they find out a fact after -- after they arrested him.
03-710 +++$+++ 7591 +++$+++ TRUE +++$+++ MR. COMEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I would suspect that any statements made or seizures made pursuant to the arrest, which was made on facts known to the officers, that did not include what was in his wallet would be in jeopardy. That -- you still might be able to prosecute him, but you'd have to work awful hard to save anything you got as a result of that arrest.
03-710 +++$+++ 7592 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you would confine the rule to what the officer has seen at the time of the arrest.
03-710 +++$+++ 7593 +++$+++ TRUE +++$+++ MR. COMEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Facts known to the officers, including facts known to officers with whom he or she is working. Thank you, Your Honor.
03-710 +++$+++ 7594 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Comey. Mr. Phillips.
03-710 +++$+++ 7596 +++$+++ FALSE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, may it please the Court: In essence, the closely related offense doctrine enforces the reasonableness clause by precluding officers from arresting someone for non-criminal conduct. At its core, that's what this is about. Mr. Alford was arrested for conduct that was not --
03-710 +++$+++ 7597 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I thought at its core it was about this rule that the Ninth Circuit adopted about closely related offenses. I thought at its core that's what we were concerned with.
03-710 +++$+++ 7598 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, the closely related offense doctrine itself is -- it's in five circuits -- six depending on how you count the cases. But it's designed to -- to look at two things: number one, whether the arrest itself is reasonable; and number two, from a qualified immunity standpoint, whether -- essentially it's a no harm/no foul rule. If the conduct for which the person was arrested is criminal, but the officer merely has a mistake in terminology -- he calls it driving while license suspended instead of reckless driving -- then it actually salvages the arrest for law enforcement.
03-710 +++$+++ 7599 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what if the arresting officer just doesn't give a reason for the arrest, just makes the arrest, and it turns out, at the end of the day, that indeed there were objective facts that would have justified an arrest. It wasn't what the officer had in mind but he didn't say anything. What result then?
03-710 +++$+++ 7600 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that -- that implicates several other rights. Number one, it is -- while an officer could, in some jurisdictions, effectuate a warrantless arrest without stating a basis therefor --
03-710 +++$+++ 7601 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, could -- could an arrest made under the circumstances I described be valid?
03-710 +++$+++ 7602 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I hate to say this, Your Honor, but it depends because at some point, for example, when the person is brought before the magistrate for the probable cause determination, they're not operating in a vacuum. There will have to be --
03-710 +++$+++ 7603 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. At that time, there does. But we're talking about at the time of arrest. And it -- it just -- if the closely related offense doctrine has the effect of punishing an officer for explaining to the suspect a reason for the arrest, why is that a good doctrine? I mean, if the officer could say nothing and could end up, at the end of the day, having a valid arrest, I just think the closely related doctrine doesn't serve a very good purpose.
03-710 +++$+++ 7604 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the -- in this case, of course, that's -- that's not the -- that's not this case because the officer was very clear. He said exactly what it was for, and then he -- when he booked him, Officer Haner even booked him for illegal recording. So in this case, we're -- we're not presented with a vacuum. But even in an instance where the officer did not state at the instant of the arrest why he was arresting the person, one of the benefits of this doctrine is that it would allow for an objective review of the facts in order to determine --
03-710 +++$+++ 7605 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if the objective review shows that there were, indeed, facts that would have justified an arrest, then what's wrong with allowing that to proceed?
03-710 +++$+++ 7606 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the -- the danger of that is that allowing this, as -- as I termed it, a general right of arrest with -- with no articulated basis at any point up until charging runs contrary to some of the basic principles --
03-710 +++$+++ 7607 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. What's -- what's happening here is in order to avoid the down side of your test -- as Justice O'Connor puts it, her point is that if we adopt your rule, there's going to be an incentive not to state the reason. Now, in order to avoid that -- you haven't really squarely confronted it -- I think you're suggesting that there has to be an additional rule that the police officer must say why he's arrested, and -- and the authorities just don't establish that. Now, if you want us to go on and make up that rule, I suppose we could make up that rule.
03-710 +++$+++ 7608 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'll be very happy if you --
03-710 +++$+++ 7609 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I'm -- I'm sure you'd be delighted. But that's not the case we're confronted with. And if the choice is between making up a new rule to make your test work or rejecting your test, it seems to me that the -- that the latter might be the preferred course.
03-710 +++$+++ 7610 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, to sort of piggyback on what Justice Souter and what Justice Ginsburg had commented on, there's no empirical evidence to suggest that there is or would be a movement by police officers towards silence. There is simply nothing out there that says that police officers have in the past in the six jurisdictions, the six circuits that use this. There's no evidence that they have remained silent in an effort to --
03-710 +++$+++ 7611 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Must -- must be very stupid police officers. I mean, it's -- it's just obvious what -- what you have to do to make a valid arrest. If you say nothing, any -- any basis that you could have had for the arrest will -- will be used. Whereas, if you -- if you mention something, you better be able to substantiate that particular cause or a closely related crime. Police officers aren't any dumber than the rest of us. I can't believe that -- that that wouldn't be the -- the consequence of -- of the rule you're asking us to adopt.
03-710 +++$+++ 7612 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
03-710 +++$+++ 7613 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ To put it this way, it seems to me the burden should be on you to -- to tell us why a police -- police officers are so stupid that they -- that they go around and -- and continue to give reasons when that's -- when that's going to make it more difficult for them to sustain the arrest and subject them to -- to personal liability.
03-710 +++$+++ 7614 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, for the most part, Justice Scalia, it does not come back to haunt the officers because the vast majority of arrests are lawful. The vast majority of officers have probable cause for the thing that they arrest the person for, and they arrest him for criminal conduct.
03-710 +++$+++ 7615 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if they're told in this case that they're subject to 1983 liability out of their own pockets if they get it wrong, then it seems to me they would pursue the safe course and say nothing. I mean, you did say at one point in your brief that when a warrantless arrest is effected, the officer must inform the arrestee of the officer's authority and cause of arrest. But that's not true on the spot as a matter of Washington law or constitutional law, is it?
03-710 +++$+++ 7616 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The issue of -- of the constitutionality of that has never been ruled on by this Court. There are --
03-710 +++$+++ 7617 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you're not urging that the Constitution requires the officer on the spot to state the cause of the arrest, or are you?
03-710 +++$+++ 7618 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Personally, Your Honor, I think that that would -- that would certainly comport more with the common law that was extant at the time the Constitution was --
03-710 +++$+++ 7619 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, regardless if it -- whether it comports with the common law, I don't see why the rule that you are urging, closely related, is going to make a dime's worth of difference unless ultimately we hold that there is an obligation to state the cause at the time of the arrest.
03-710 +++$+++ 7620 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because, Your Honor, even if the -- even if the cause of the arrest is not stated at the time of the arrest, the person must be booked for something. There's a -- a report that's generated. In this instance --
03-710 +++$+++ 7621 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. The booking occurs after arrest, and I thought what we were concerned with in this case was the validity of the arrest, not the booking.
03-710 +++$+++ 7622 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, Your Honor.
03-710 +++$+++ 7623 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Now, if -- if the -- if the -- if it is the validity of arrest, which -- which is in issue, I don't see why your rule is going to make any difference in the long run unless we go the further step and say, in order to make this work, i.e., enforce Fourth Amendment values, at the time of the arrest the cause has got to be stated. Am -- am I missing something?
03-710 +++$+++ 7624 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I would analogize it to the -- the arrest rule. Whether someone is or is not under arrest from a Fourth Amendment standpoint is based on an objective test, and it is viewed after the fact.
03-710 +++$+++ 7625 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, based on an objective test, we'll get absolutely nowhere. The person who is arrested is not in a position to be making objective or subjective assessments, by and large. He probably knows what he's being arrested for because it's obvious, but then we have cases like this, which are the only ones that are going to be litigated, and he may not know. The -- the fact still, it seems to me, is obvious. If we go your way, we're going to have to go the further step of requiring the cause to be stated. Isn't that, as a matter of common sense, true?
03-710 +++$+++ 7626 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would certainly make it easier, but it's not necessary.
03-710 +++$+++ 7627 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. I'll be candid with you. I think it is necessary. But the -- I guess the -- what I'm getting at in all of this is you're asking us to take steps to solve a problem, and I don't think you've demonstrated what the problem is. We keep coming back, as we have several times, to the lack of empirical studies. Have we got something to worry about in -- in enforcing Fourth Amendment values that we can only guard against if we go your way?
03-710 +++$+++ 7628 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I would say that the fact that there are six circuits that have adopted this policy shows that this is -- that this is a problem that occurs nationwide.
03-710 +++$+++ 7629 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then what is the -- yes, but what's the justification for doing it? What is the practical problem that we are concerned with?
03-710 +++$+++ 7630 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The practical problem is that people are being arrested for conduct that is, at its base, not criminal.
03-710 +++$+++ 7631 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they should have been arrested. I mean, so long as they should have been arrested, who cares? In this case, I mean, it'll -- it'll be ultimately be tried by a jury I -- I guess, but your -- your client pulls up behind another car with wig-wag lights flashing, like a police car. Right? He has a police scanner on the seat next to him. He has handcuffs. He has tinted glass in front of the license plate -- of his license plate, so it can't be -- can't be read. It seems to me there was obvious probable cause to -- to arrest this fellow for impersonating a police officer. And I would have hoped he would have been arrested so he wouldn't go around and -- and pull up behind another car. What is the problem?
03-710 +++$+++ 7632 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor --
03-710 +++$+++ 7633 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems to me he should have been arrested, and the -- and the mere fact that the police officer gave the wrong reason for arresting him doesn't make me feel very bad about the arrest at all. I'm glad he was arrested.
03-710 +++$+++ 7634 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm going to disagree on two points. First, at the trial court, the State did not argue that he could have been arrested for other crimes. The jury was never instructed on the elements of these supposed other crimes. And we pointed that out in the appeal in the reply brief.
03-710 +++$+++ 7635 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but did you object to the instructions in the trial court?
03-710 +++$+++ 7636 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, because the --
03-710 +++$+++ 7637 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ One of the problems I have with the case, very frankly, is that the jury has already ruled against your client on the qualified immunity issue carrying out instructions given by the judge that were not objected to by your client.
03-710 +++$+++ 7638 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor, but the only instructions that were given regarding -- regarding what they needed to find to find a violation were the Privacy Act instructions.
03-710 +++$+++ 7639 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But whose fault is that?
03-710 +++$+++ 7640 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think if the State wanted them to -- qualified immunity is an affirmative defense. If they wanted the State to find -- if they wanted the jury to find there was impersonation, they should have requested an instruction on that because impersonation in Washington requires more than simply taking an action that creates an impression that you're an officer. It also -- under first degree, there has to be specific intent to defraud someone, and here the only thing he did, he gave them a flashlight and helped them jack up their car. On the issue of the wig-wag headlights, the transcript shows that the officer spent a minute or 2, by his own estimation, on the scene behind Mr. Alford's car, saw no wig-wag headlights. And as for the scanner, the -- the transcript, page 246 -- he admitted at trial it was actually a ham radio, not a portable police scanner.
03-710 +++$+++ 7641 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I thought that the reason that the police went after your client after he left the vehicle that was disabled was because the officers at that point suspected that he might be impersonating a police officer. That's what the people in the -- the disabled vehicle told the officer. They said he had flashing headlights. We thought he was a police officer. And -- and wasn't the original following of your client triggered by the suspicion that he might be impersonating a police officer?
03-710 +++$+++ 7642 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, and that -- that -- we have not argued that there was not suspicion sufficient to -- to have a stop to do investigation. However, under the Washington statute, there was not evidence sufficient to show probable cause that there was an actual crime --
03-710 +++$+++ 7643 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Under Washington law, is it lawful for your client to have headlights -- wig-wag lights?
03-710 +++$+++ 7644 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. It is a traffic violation. That is a non-arrestable offense, and that was admitted at court and also here today.
03-710 +++$+++ 7645 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was your client ever found guilty of any offense at all?
03-710 +++$+++ 7646 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. Even the traffic infraction was dismissed by the judge.
03-710 +++$+++ 7647 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's unlawful to have wig wag lights, and I take it it's an arrestable offense to impersonate a police officer.
03-710 +++$+++ 7648 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, but that --
03-710 +++$+++ 7649 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So that would -- that would certainly be probable cause to arrest just based on the wig-wag, plus the fact he lied to the police in -- in instructing them the button to push or didn't tell them what button to push to make them go.
03-710 +++$+++ 7650 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. The obstruction charge also under Washington law -- under the case law interpreting the statute, there has to not only be the -- the hindrance or obstruction. There has to be specific intent, and there has to be obstruction in fact. And in this case, both of the officers testified that they -- that he pushed every button they asked him to. He opened the hood for them. He let them look at the -- the flasher unit. He showed them the manual. They both say that they saw this button that after the arrest they pushed -- one of them pushed. However, there's obviously no obstruction in fact if -- one of them actually said at trial that he didn't ask him to push the button because he wanted to see whether he would push it or not. So there's no -- again, there's no facts to support a finding of probable cause even on the obstruction because the officers were essentially just letting him hang himself.
03-710 +++$+++ 7651 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that -- that isn't the issue before us here. I -- I assume that for purposes of the question on which we granted certiorari, we have to assume, or else the whole thing doesn't make any sense and it's all -- it's all arguing about nothing -- we have to assume that there was probable cause on some other ground than the ground which he stated or anything closely related to the ground which -- which the officer stated. Isn't that -- isn't that the -- the manner in which this case gets to us?
03-710 +++$+++ 7652 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we raised the issue at the Ninth Circuit that there had been no evidence put forward on the other crimes. And we pointed out that even the deputy prosecuting attorney -- and in fact, even in closing argument, when they addressed the -- the wig-wag headlights, et cetera, they stated specifically that that information went to what they called his intent to unlawfully record.
03-710 +++$+++ 7653 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but that's not the ground on which the Ninth Circuit decided it. The Ninth Circuit never had to reach the question of whether there was probable cause on these other grounds --
03-710 +++$+++ 7654 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, Your Honor.
03-710 +++$+++ 7655 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- because it found, even if there was these other grounds, they're not closely related to the illegal taping. So I suppose you're telling us that if we find that we do not like the closely related rule, that it's not part of -- of United States constitutional law, what we should do is remand to the Ninth Circuit so that they could determine whether there was probable cause on the other grounds.
03-710 +++$+++ 7656 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's exactly right, Your Honor. And in -- in looking at this -- this probable cause determination and the reasonableness requirement of the Fourth Amendment, the qualified immunity, of course, was a doctrine that was advanced by the Court to address specific problems. None of those problems are impacted in any way by the closely related offense, this subset of qualified immunity cases.
03-710 +++$+++ 7657 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask one other question about the proceedings in the trial court?
03-710 +++$+++ 7658 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir.
03-710 +++$+++ 7659 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was there a motion for summary judgment by the defendants claiming, as a matter of law, they should be entitled to qualified --
03-710 +++$+++ 7660 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir.
03-710 +++$+++ 7661 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that was overruled.
03-710 +++$+++ 7662 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was denied, yes.
03-710 +++$+++ 7663 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And then there was a jury trial and the jury disagreed with it and, in effect, said there -- there was basis for qualified immunity.
03-710 +++$+++ 7664 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Yes, Justice Stevens. And the -- in reviewing the transcript and in reviewing the -- the instructions and the ruling on the summary judgment motion, the reason that Senior Judge Bryan did not rule on the qualified immunity was twofold. One, at the time of the summary judgment motion, one of the officers was -- well, was lying about having contacted the prosecutor prior to making the arrest, and he noted in his order that there was a factual dispute. So summary judgment wasn't appropriate. And second, Judge Bryan indicated that essentially there was a problem created by the Saucier opinion because he felt that it was somehow possible that there could have been an arrest effectuated without probable cause, but that there was a reasonable mistake on the part of the officers. So this did not proceed to the jury on the -- on this closely related offense doctrine. It didn't proceed on there were these other crimes for which probable cause existed, but on this broad standard of good faith and reasonable mistake.
03-710 +++$+++ 7665 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is your understanding of the reason for the jury's verdict on this issue?
03-710 +++$+++ 7666 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I almost hate to say it, Your Honor, but I believe it was a lack of sympathy. That -- that is my -- much like with Justice Scalia, I believe they -- they looked at the -- the circumstances and even though there was not probable cause to have arrested him, they came to the conclusion we don't like Mr. Alford. We're not going to find for him.
03-710 +++$+++ 7667 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask one other question then too?
03-710 +++$+++ 7668 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's not my reason. I don't even know the man. I'm just -- (Laughter.)
03-710 +++$+++ 7669 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In -- in your view is the closely related doctrine a -- a matter of closely related as a matter of law between two different offenses or is it a matter of -- are the facts relevant? For example, could one argue that these offenses were factually related pretty closely because they grew out of the same central group of facts?
03-710 +++$+++ 7670 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In our brief, Your Honor, I often used the phrase same conduct test because in amalgamating the six different circuits, that appeared to be the most consistent test and the one that's most consistent with the objective standard and with the reasonableness standard, that if -- and I, again, go to the no harm/no foul. If you're engaging in conduct that would have and should have led to your arrest, if it's the same conduct for which you were arrested and it's simply misnamed, then there essentially is no harm of constitutional magnitude. But otherwise --
03-710 +++$+++ 7671 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, then you have a very narrow view of closely related. It comes down to misnomer cases. It's one thing to say -- what the officers told the DA, although after they arrested him -- didn't they describe the whole episode from when they saw Alford pull up behind the disabled vehicle? They described that and they mentioned the flashing lights. They described the whole episode up till the point where they -- the officers apprehended him and saw the equipment and then noticed -- they told the DA everything, and he said, yes, you have probable cause.
03-710 +++$+++ 7672 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They did describe the entire episode to him, Justice Ginsburg.
03-710 +++$+++ 7673 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So why couldn't it be related in time and space rather than legally related?
03-710 +++$+++ 7674 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm not urging something as narrow as -- as a semi-Blockburger test. But here you have essentially two discrete conducts that were being examined by the officers: number one, the actions surrounding the headlights; and number two, the actions surrounding the taping. And the trial -- I mean, it was very clear that the two were treated as discrete incidents by the police. At the moment Devenpeck saw the tape recorder -- and he testified at trial. When I saw the recorder in the record mode and saw that it was moving, that's what he stated to him constituted probable cause for the arrest. The moment he saw that tape recorder and saw the play and record buttons were pushed, he informed Mr. Alford, you're under arrest for making an illegal tape recording. So when looking at whether something is -- is sufficiently related or not, obviously there's going to have to be more than a modicum of logic that's used, but objectively this separates rather nicely into two discrete incidents for the analysis.
03-710 +++$+++ 7675 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why -- why is it exactly that a policeman who comes on a difficult scene, gun in one pocket, the guy has a knife in another, and he throws a punch? Now, the policeman might make a mistake about that. He -- he thought he threw a punch, but he made a mistake. Now -- now, why is a policeman less likely to make that kind of a mistake than make a mistake about what crime to label it?
03-710 +++$+++ 7676 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, we're not concerned so much -- this doctrine is not concerned so much with what to label the crime.
03-710 +++$+++ 7677 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. You said -- you -- you say everybody agrees in this case that if the policeman had reasonable cause objectively to arrest the person for A, but he arrested him for B instead, there are some circumstances in which that's okay. And on their view, it's -- as long as -- it was always okay, really, as long as objectively there was reasonable cause. On your view, you're going to add a little thing. You're going to add, and by the way, it's not okay unless that conduct that he looked at was in fact illegal. So you say -- because policemen could make mistakes about labels, but they're not likely to make mistakes about throwing a punch. So I just wondered why not. I mean, they got the wrong guy for throwing the punch. You know, so -- so what? Why is that so -- that -- that supposedly in your view is some terrible constitutional harm, but if he just mislabels it, it's not a terrible constitutional harm. And I'm just puzzled as to where that distinction comes from and why.
03-710 +++$+++ 7678 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, the distinction in -- in this particular case and the distinctions in the -- in the cases that run the gamut around the circuits generally show one thing that we --
03-710 +++$+++ 7679 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that the circuits all agree with you. Now, my only problem is it's hard for me to see why they all agree with you. (Laughter.)
03-710 +++$+++ 7680 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and that's where I'm sort of stuck.
03-710 +++$+++ 7681 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if we start with first principles, and the first principle that underlies this case is there is, from the framing area -- era, a general mistrust of warrantless arrests. From that, we step to the reasonableness clause. From the reasonableness clause, we then step to this judicially created qualified immunity, which subsumed the good faith analysis. So what we find is we're stepping further and further away from the original principle. And the -- on the original principles, he was arrested without a warrant. Wrong. Under the Constitution we have reasonableness. Okay. He's arrested. Was it a reasonable arrest? The court has said we generally say that if an arrest has probable cause, then it's reasonable unless there are these exigent circumstances, excessive force, et cetera. Then under qualified immunity, it's even a step more attenuated, that even though there might not have been probable cause, if there was arguable probable cause, then there would be a violation, but no one is going to be liable for it.
03-710 +++$+++ 7682 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but Mr. Phillips, let me go back first principles. You are complaining about an arrest which you admit was valid. Do you not -- do -- do you not that the arrest was supported by probable cause and therefore was a valid arrest?
03-710 +++$+++ 7683 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In this instance, Your Honor?
03-710 +++$+++ 7684 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
03-710 +++$+++ 7685 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly not.
03-710 +++$+++ 7686 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, I misunderstood. I thought we were just talking about qualified immunity. But you challenge the arrest itself even though you admit there was probable cause for the arrest?
03-710 +++$+++ 7687 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, because we don't feel that there was probable cause for the arrest.
03-710 +++$+++ 7688 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We don't that challenge that here, though. I asked you that question earlier, and I thought you agreed that for purposes of our deciding this case, we -- we will assume, though you do not concede the point, that there was probable cause on one of the other grounds.
03-710 +++$+++ 7689 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That in order to address the Ninth Circuit's holding --
03-710 +++$+++ 7690 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Exactly, exactly.
03-710 +++$+++ 7691 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and there's no need for the Ninth Circuit's rule unless there was probable cause because if there was no probable cause, you win on that ground. You don't have to get into this closely related offense doctrine. Is that correct?
03-710 +++$+++ 7692 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If there was probable cause --
03-710 +++$+++ 7693 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. If there was no probable cause.
03-710 +++$+++ 7694 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, correct. If there was no probable cause for --
03-710 +++$+++ 7695 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then you win without this fancy doctrine.
03-710 +++$+++ 7696 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- that is correct, Your Honor, and that was --
03-710 +++$+++ 7697 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This -- this doctrine only comes into play and is only required in cases involving a valid arrest and a -- a mistake by the officer in identifying the wrong cause for the arrest. So it's an extension of the qualified -- it's a -- it's a -- an application of the qualified immunity doctrine to say you are not protected even though you acted lawfully.
03-710 +++$+++ 7698 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, because it actually -- to turn it back around, you're not protected because you did not act lawfully. You did not act lawfully because --
03-710 +++$+++ 7699 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but if you say the arrest was valid, he did act lawfully although we didn't realize the reason why he did.
03-710 +++$+++ 7700 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the cases that have examined this doctrine have -- have looked at it as sort of straddling the Fourth Amendment and the qualified immunity analysis.
03-710 +++$+++ 7701 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but don't you reconcile the -- the problem of the straddle by saying that unless the probable cause, which we will assume existed, is for a closely related offense, the whole arrest was invalid?Isn't that your position?
03-710 +++$+++ 7702 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. Unreasonable.
03-710 +++$+++ 7703 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Now, let me ask you -- you one other question. You -- you started out in getting down to first principles with disfavor of warrantless arrests. Would your position be different if the officer had somehow gotten an arrest warrant on the spot for illegal taping? Wouldn't you be making the same argument?
03-710 +++$+++ 7704 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly, Your Honor, and there we would --
03-710 +++$+++ 7705 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it has nothing to do, essentially, with warrantless or nonwarrantless arrests.
03-710 +++$+++ 7706 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in this case it does, but had there been a warrant --
03-710 +++$+++ 7707 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, in this -- yes, but on your theory, that is -- that is incidental. That is not essential. If he had had an arrest warrant for illegal taping, you'd be making the same argument.
03-710 +++$+++ 7708 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That there was no probable cause for the arrest.
03-710 +++$+++ 7709 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's -- that's right.
03-710 +++$+++ 7710 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, Your Honor.
03-710 +++$+++ 7711 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
03-710 +++$+++ 7712 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I think that that -- of course, that -- as we point out in our brief, there's support for that, that historically the warrant must show the reason that someone is being arrested. So as we pointed out, there's this -- an odd --
03-710 +++$+++ 7713 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you don't have any case law to cite to us for that. That gets us into a whole new doctrine.
03-710 +++$+++ 7714 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think one of the most fundamental principles that we can look at on showing the reason why you're being arrested is the great writ of habeas corpus where, in order to hold someone, they must show why he is being held.
03-710 +++$+++ 7715 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you've already conceded that it -- Washington law doesn't require the officer on the spot to say why he's making the arrest and that there's no decision of this Court or any court that I know that said the Constitution requires the officer on the spot to give a reason.
03-710 +++$+++ 7716 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. So what we have posited and what the Ninth Circuit -- what they did in the Gasho case, for example, is after the fact you can look at the actions that were taken by the officers, the booking sheet, et cetera, to give you some objectively verifiable evidence of the cause for the arrest. And really what it's looking at is there needs to be a nexus between conduct and arrest, and --
03-710 +++$+++ 7717 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Phillips. Ms. Hart, you have 5 -- 5 minutes.
03-710 +++$+++ 7719 +++$+++ FALSE +++$+++ MS. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think I'd only like to make one point, Your Honors, and that is that the Fourth Amendment does not make the validity of arrest a game that the government loses even when there's probable cause for arrest, but the closely related offense doctrine does. And for that reason, it should be rejected and we respectfully ask the Court to reverse the decision of the Ninth Circuit.
03-710 +++$+++ 7720 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Ms. Hart. The case is submitted.
03-725 +++$+++ 7724 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument in the case of Pasquantino against the United States. Ms. Brill.
03-725 +++$+++ 7726 +++$+++ FALSE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: There are five primary reasons why this prosecution is outside the scope of anything Congress has authorized. First, the government's interpretation of the wire fraud statute is inconsistent with the revenue rule. Second, it turns the rule of lenity on its head by allowing the Government to incarcerate petitioners for 57 months for conduct that has never given rise to civil liability in this country. Third, this prosecution contravenes our national policy of demanding reciprocity in matters of international tax enforcement. Fourth, the Government acknowledged below that it cannot bring this prosecution without disregarding another act of Congress, the Mandatory Victims Restitution Act, which is, as the name specifies, mandatory. And, fifth, under this Court's decisions in McNally and Cleveland, the wire fraud statute applies only to schemes aimed at defrauding a victim into relinquishing something that it holds as money or property. A sovereign's interest in an unassessed tax claim is neither money nor property.
03-725 +++$+++ 7727 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, can you look at the interest of the Government as one of not allowing U.S. territory to be used to carry out a smuggling scheme? I mean, why does it have to be viewed as one of trying to enforce some other nation's tax laws?
03-725 +++$+++ 7728 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice O'Connor, the government's interest in prosecuting somebody does not define the scope of what the statute at issue proscribes.
03-725 +++$+++ 7729 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's a wire fraud statute dealing with the use of communications capacity in this country to carry out a scheme designed to enable smuggling of goods.
03-725 +++$+++ 7730 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if the -- if the statute was not written as it is -- the statute, as written, uses the words "defraud" and the word -- the word "property," and both of those terms are terms that this Court has defined very narrowly. In Nader, it defined a "fraud" as --
03-725 +++$+++ 7731 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Brill, I thought your brief said that we have an anti-smuggling statute, which is directed precisely against smugglers, but it only applies to those countries that have similar protection for us.
03-725 +++$+++ 7732 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice --
03-725 +++$+++ 7733 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And Canada does not.
03-725 +++$+++ 7734 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Scalia, that's exactly correct.
03-725 +++$+++ 7735 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The existence of that statute would seem to suggest -- and a statute which is limited to countries that will do the same for us -- would seem to suggest that we don't want to do this for Canada.
03-725 +++$+++ 7736 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that's exactly -- that's exactly right, Your Honor. There --
03-725 +++$+++ 7737 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it's also limited to vessels. It's smuggling by water, not smuggling by --
03-725 +++$+++ 7738 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ By automobile.
03-725 +++$+++ 7739 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- vehicles, as was done here, so that we don't have any statute that covers smuggling on land.
03-725 +++$+++ 7740 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Yes, Your Honor, that's correct.
03-725 +++$+++ 7741 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is there something better about reciprocity for vessels and not reciprocity for land smuggling?
03-725 +++$+++ 7742 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it just evinces what Congress was concerned about most at the time, Justice Scalia, but it was -- it is certainly the case that in any -- any time that this country has endeavored to deal with matters of international tax enforcement, it has always demanded reciprocity. It has done so through the smuggling statute, it has done so through the numerous tax treaties that the Second Circuit's RJR decision discusses at length. And one of the points the RJR decision makes is that, in 1951, at the very time that Congress was looking at the wire fraud statute and enacting it, the Senate was, at the same time, becoming concerned that this country had gone too far in extending reciprocity in connection with its tax treaties and was actually evincing a policy of cutting back on the degree to which we would assist other countries in tax enforcement. And so the issue is to look at -- that the revenue rule must be used as a background principle of common law against which -- against which the revenue -- excuse me, against which the wire fraud statute is --
03-725 +++$+++ 7743 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if we don't view this case as involving some attempt to indirectly enforce Canada's tax laws -- suppose we don't view it with that lens -- then does that put it outside the so-called revenue --
03-725 +++$+++ 7744 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if it were not -- if it did not serve the function -- it doesn't matter what the government's intent is and what is in the mind of the prosecutor, but if it did not have any effect of enforcing a foreign government's revenue rule, then, yes, it would be outside; but there are numerous ways in which this prosecution does enforce a foreign government's revenue rule. Certainly, it deters future violations. The sentence was based on the -- an estimate of the intended loss, and there was no assessment or an adjudication in Canada to determine what the amount was that was owed. And so the District Court became, essentially, part of the tax enforcement apparatus of the Government of Canada by performing that assessment in the first instance. And so anytime that we impose criminal or civil liability in a manner that affects the tax policies of another country, we are enforcing that rule. If we -- whether we're requiring compliance with the -- with the tax rule of a foreign country or punishing noncompliance. All of those --
03-725 +++$+++ 7745 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is the rationale for the rule that enforcement of taxes is so unpopular that we want to minimize the exposure to -- of our judges so that they -- the only thing they have to do is enforce taxes that -- that are paid to our own Government? I'm serious about that. Is that the rationale?
03-725 +++$+++ 7746 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think there's a certain amount of self-protection in some of the decision -- decisions, surely; but the real -- the underlying purpose of the revenue rule is a recognition that foreign -- that taxes, in general, are a matter of policy. They're inherently policy-based; they're not based on contract or other kinds of commerce. They do not -- they do not assist in resolving disputes between private parties. And often they're imposed -- especially customs duties, are imposed to disadvantage other countries, and so the courts have said these are a peculiar type of law, they serve only the interest of the -- of the foreign sovereign, and there's a particular -- there's been a particular sensitivity about scrutinizing those foreign laws, potentially declaring them invalid under the foreign governments' own laws or pursuant to our own Constitution. And so revenue rules have historically been a categorical exclusion to general principles of comity through which we might otherwise recognize foreign laws or foreign judgments. And the rule has come to be so entrenched, and has been so well established, that there's a whole body of background law in the tax treatise of our country, and of many other countries, that is based on our non-recognition and our non-enforcement of foreign revenue laws. So --
03-725 +++$+++ 7747 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if we did -- if we did enforce even a tax judgment of another country, there would be no U.S. law that would be violated. You're talking about a common law, no country enforces the taxes of another. But, at least in the Restatement of Foreign Relations now, that's put in terms of -- there's no requirement that any country enforce the tax claims or judgments of another; but neither is there any prohibition.
03-725 +++$+++ 7748 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Ginsburg, the current restatement is worded in -- addresses judgment specifically. It does not -- it doesn't address un-adjudicated tax codes. But there's always been a much greater suspicion, a much greater reluctance, to get into enforcing a claim brought by a foreign country, where that country's own processes have not been allowed to run their course and to have the initial determination. There -- the restate -- the second Restatement of Foreign Relations law, which is -- was -- came out in 1965 and is closer to reflecting what the law was at the time Congress enacted the wire fraud statute, says, in Section 41, Comment L, "Under the -- under the foreign relations law of the United States, courts in the United States will generally refrain from taking action to give effect to the penal or revenue laws of other states, except as provided by international agreement." And so that -- that was a statement by the -- by the propounders of the -- of the Restatement of what they -- what they believed the law was at the time. To the extent it's qualified, I think it's just to leave room for the fact that the Senate can promulgate treaties, or Congress can, by statute, command that courts recognize these laws. But it's --
03-725 +++$+++ 7749 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You don't -- you don't assert that this -- that it -- that this couldn't be done. You just --
03-725 +++$+++ 7750 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not that --
03-725 +++$+++ 7751 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- assert that we shouldn't interpret this statute to have done it.
03-725 +++$+++ 7752 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly, Justice Scalia. If Congress had written a different wire fraud statute that had said, "You can't have a scheme to defraud the revenue, whether foreign or domestic," that would have been a clear statement abrogating the revenue rule. But we don't have any such clear statement, and the terms -- the terms "defraud" and the terms "property" have to be read with the background rule in mind.
03-725 +++$+++ 7753 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I --
03-725 +++$+++ 7754 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you would come to that conclusion even if we had a reciprocal enforcement agreement. If this were Country X, where we did have a reciprocal enforcement agreement, you'd come to the same conclusion, no prosecution under this statute.
03-725 +++$+++ 7755 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct, Your Honor, because there wouldn't -- this statute wouldn't have been written to take that into account. This --
03-725 +++$+++ 7756 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, in a sense, the revenue position is irrelevant to your -- to your secondary or your -- or your independent argument on statutory construction. The revenue rule is irrelevant to it.
03-725 +++$+++ 7757 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As to just whether an unassessed tax claim --
03-725 +++$+++ 7758 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
03-725 +++$+++ 7759 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- is property, the revenue rule -- the revenue rule adds a boost to it, but there are two -- there are two dimensions to the property element. One is that, as I said -- and if a -- if a tax claim is not -- has not been subject to an assessment, that whatever interest the Government may have in that is not in the nature of property; it is simply in the nature of law-enforcement power to collect. They -- some of these revenue rule cases talk about the power to --
03-725 +++$+++ 7760 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So tax revenues are not property, in your view?
03-725 +++$+++ 7761 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Once a tax is collected, once the Government actually has money in its hands, and if there's a scheme to, let's say, obtain an illegal refund through a tax and -- that would be a scheme to deprive a government body of money. But a scheme to merely evade paying a tax is not something that falls within the statute, separate and apart from the revenue rule. But the revenue rule -- as a result of the revenue rule, it is also the case that no state court would have recognized any property interest in a foreign sovereign, even if it had reached the point of a judgment. And so it works in both ways. The --
03-725 +++$+++ 7762 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask you, Ms. Brill, something that puzzled me about this case? It is a rather peculiar use of our wire fraud statute. Are there any proceedings going on in Canada? Has there been any attempt to extradite these people?
03-725 +++$+++ 7763 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, there was an indictment that Canada issued against the Petitioners. It has charges under -- for smuggling, under Canadian law, which is Customs Act, Section 159. It charges unlawful possession of imported spirits under Excise Act 163(1)(b), disposing of goods illegally imported, in violation of Customs Act, Section 155. So Canada has its own process. There has -- there has not been, to my knowledge, any request by Canada for extradition, but the treaty between the United States and Canada does include revenue violations, and --
03-725 +++$+++ 7764 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Presumably, if we punish this person this way, Canada wouldn't -- there's no double jeopardy, right?
03-725 +++$+++ 7765 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
03-725 +++$+++ 7766 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So we'd be punishing this person for violating Canadian law, and then Canada would punish this person for violating Canadian law.
03-725 +++$+++ 7767 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I haven't looked in detail at the statute of limitations provisions, but that could be the effect. And we could be punishing them much more severely than Canada would be. They have their own means of balancing what they think the appropriate balance is for these things, and certainly the wire fraud statute, 57 months in our --
03-725 +++$+++ 7768 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I think the Government has an interest in saying, "Look, if you're going to smuggle, have your scheme up there in Canada; don't use our wire systems for fraudulent purposes. We don't like that here."
03-725 +++$+++ 7769 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And if they want to pass a law that says that, because of the -- because there's a domestic --
03-725 +++$+++ 7770 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, they -- of course, they say that this covers it, and it seems to me that really the -- that turns on the definition of "property" --
03-725 +++$+++ 7771 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
03-725 +++$+++ 7772 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- which is an arguable point.
03-725 +++$+++ 7773 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What if the -- instead of a wire fraud case, it was assault and battery? Supposing the Canadian revenue agent got inside of New York and one of your clients beat him up, would we have -- solely because he was mad at him for trying to interfere with his attempt to smuggle into Canada -- would we have to say that you can't do that, we have no jurisdiction over the assault and battery?
03-725 +++$+++ 7774 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Stevens. It's -- the question is whether you're --
03-725 +++$+++ 7775 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The only purpose would be just what the purpose is here, they're trying to facilitate the smuggling operation.
03-725 +++$+++ 7776 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the assault and battery -- whatever the assault and battery provisions are, you would be bringing the prosecution solely for that purpose; it does not have any -- the effect of applying the assault and battery statute, if there was one --
03-725 +++$+++ 7777 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is to interfere with Canadian's collection of their taxes. That's the only reason for it.
03-725 +++$+++ 7778 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think it -- in that case, it would be -- it would be far too attenuated to reach that conclusion. There could be -- the motive of a person --
03-725 +++$+++ 7779 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why is that any more attenuated than a conspiracy carried out down here in Maryland using American assets to do the evil deed in Canada?
03-725 +++$+++ 7780 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the motive of the person performing the assault and battery would be irrelevant to the prosecution. It's whether they intended to do the improper touching and, in fact, carried it out.
03-725 +++$+++ 7781 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, why isn't the motive irrelevant here? We don't want our facilities to be used for criminal activity.
03-725 +++$+++ 7782 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The question is whether --
03-725 +++$+++ 7783 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Any more than in the -- in the hypothetical we don't want citizens beaten up on our soil.
03-725 +++$+++ 7784 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, the issue is whether -- is what Congress had in mind in enacting the wire fraud statute. And, in general, we presume that Congress had domestic concerns in mind, not that we have incorporated vast bodies of --
03-725 +++$+++ 7785 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but it used broad language, "Any scheme to defraud by means of wire communications in interstate or foreign commerce."
03-725 +++$+++ 7786 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The wire -- it is -- the wire communications may be an interstate or foreign commerce, the word "any" modifies "any scheme or artifice to defraud" --
03-725 +++$+++ 7787 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This statute applied against people who defraud the United States Government in taxes?
03-725 +++$+++ 7788 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the government's position on that, I believe, is somewhat inconsistent. The tax -- the tax division and the Department of Justice U.S. Attorneys manual specifies that it is -- they believe it is the intent of Congress that tax matters will be dealt with through the internal revenue code, not through other means. There are -- there have been some prosecutions brought in the case of an illegal -- an illegal tax shelter, where there is truly an -- a private party who is defrauded into giving up money in connection with --
03-725 +++$+++ 7789 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you don't -- you don't know of any prosecutions under this fraud statute for depriving the Federal Government of property.
03-725 +++$+++ 7790 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the Henderson case, which we have cited in our reply brief, is one from the Southern District of New York, where Judge Weinfeld said, when faced with a mail fraud prosecution of that type, this is outside the scope of anything that Congress intended. The -- I would like to get back to the issue of money or property so that it -- to have it conceptually why an unassessed tax claim is not money or property. There is no allegation that -- in the indictment or anywhere -- that the petitioners took any money out of Canada's treasury. So money is not an issue. At most, it was an effort to evade Canada's right to collect money, not any money it had --
03-725 +++$+++ 7791 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You could say the same thing if it were a building fraud. Suppose there were contractors building a Canadian building for the Canadian Government and they had a big fraud scheme down here, and it was to deprive the Canadian Government of money? I think the statute would clearly apply.
03-725 +++$+++ 7792 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The statute only applies -- what McNally said is, any assistance a governmental body obtains from the statute must be in the capacity of property-holder. And so the -- a scheme to defraud somebody out of their -- out of a building, that's traditional property. There's not -- it is not the same thing. Let's have an -- let's take an example of an interference with prospective economic advantage. So there is a defendant who says to somebody else who's about to get a contract -- I know my competitor is about to get a contract, and I say, "Why don't you go out of town? There's a -- there's a much bigger contract that you can get if you fly to Michigan." And, meanwhile, I go in, and I usurp the contract and take it for my own purposes. Well, I've interfered with that person's prospective economic advantage, and so there would be a tort, and the person could collect from me. But I have not taken any money or property from that person that was in his possession. And what McNally and Cleveland point us to is whether there was money or property in the hands of the -- of the victim. And Canada's interest -- until there has been an assessment, Canada's interest is purely that of a -- of a sovereign. It is -- it does not have a claim to any money that is in the bank account of somebody who owes it a debt. And the Johnston case, which we've cited in our reply brief, Your Honor, talks about -- this Court talked about a statute in which there was a boxing promoter who collected fees for the boxing match and also collected taxes at the same time. And the U.S. Government could not bring an embezzlement action against that person for not paying the taxes, because those taxes were not -- were not yet anything that qualified as governmental property.
03-725 +++$+++ 7793 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Ms. Brill, in the Court of Appeals, they treated the argument that this was not property as entirely separate from the revenue rule question. And I thought your petition for cert was confined to the first question.
03-725 +++$+++ 7794 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor -- no, Your Honor, we talked about both in the petition for cert. And in the question --
03-725 +++$+++ 7795 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the question, itself, doesn't refer to the property issue.
03-725 +++$+++ 7796 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It talks about the --
03-725 +++$+++ 7797 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was it -- was it phrased the same way it is in your brief, in the petition?
03-725 +++$+++ 7798 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes, the --
03-725 +++$+++ 7799 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, then the last part of it --
03-725 +++$+++ 7800 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, but --
03-725 +++$+++ 7801 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- obviously covers it.
03-725 +++$+++ 7802 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, the last part talks about --
03-725 +++$+++ 7803 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, I see. I'm sorry, you're right. Yeah.
03-725 +++$+++ 7804 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, okay. But to return -- to return to the revenue rule -- and thank you, Justice Stevens, for bringing me back to that -- the Government has acknowledged that there can be no restitution here. And that's in -- that's in the joint appendix, at page 106. They expressly waived it. They said that even if there was a foreign judgment that Canada was trying to bring here, that would be unenforceable. There could be no RICO actions, because that's unenforceable; and no proxy suits on behalf of a foreign government. And so the only thing that they say is, beyond -- is not included -- the only act of enforcement which they say is not included is, somehow, criminal enforcement. And under Section 14 of the -- excuse me, under the Fourteenth Amendment of the United States Constitution, Congress has power to enforce that amendment, and it has done so both in enacting statutes for civil recovery, as well as criminal recovery -- criminal punishment, excuse me. And so it's -- the notion that somehow incarcerating someone is not -- is not punishment is not something that makes much sense in that context. The decisions of this Court have held that penalties are -- monetary penalties count as punishment, and also that injunctions are -- fall within the scope of the revenue rule. That's in the Wisconsin versus Pelican Insurance case, which actually addresses the penal -- the penal rule, which is the close corollary.
03-725 +++$+++ 7805 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask you, when -- now that we're getting into money, one of the things that the sentencing court had to do was to find out how much of a loss there was, and that involved determining what taxes would be due under Canadian law. And did that increase the sentence? Did the -- did the sentence vary with the amount of taxes that they -- we found due?
03-725 +++$+++ 7806 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Ginsburg, it very much did. The loss calculation was based on intended loss, and so they -- what the District Court judge did was estimated the number of cases of liquor that were intended to be brought into Canada, and applied that number to the amount of the tax that Canada, he believed, would have applied to that -- to that amount. And that ended up changing the sentence from six months to, in the case of the Pasquantino brothers, 57 months, and the -- and, in the case of Mr. Hilts, 21 months. So the bulk of the sentence was based on the Canadian tax law and our courts making that assessment.
03-725 +++$+++ 7807 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ A judge making that assessment.
03-725 +++$+++ 7808 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The judge made the sentence -- made the assessment at sentencing, yes. What the -- what the -- what the Government did in this case was to submit, very self-consciously, all of the issues of Canadian tax law to the jury. And the Assistant U.S. Attorney said this to the Fourth Circuit en banc panel several times, that they were presenting these matters of Canadian tax law as factual issues for the jury to find. But, ultimately, in sentencing, it was -- it was the court that ended up imposing and elevating that sentence. If there aren't further questions, I'd like to reserve the balance of my time.
03-725 +++$+++ 7809 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Dreeben.
03-725 +++$+++ 7811 +++$+++ FALSE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: A prosecution for wire fraud based on defrauding a foreign government of taxes serves at least four distinct United States prosecutorial interests. The first is that the creation of schemes to defraud frequently spawns collateral criminal conduct in the United States above and beyond the fraudulent scheme itself. Here, for example, one of the defendants was charged in the indictment with using a gun in relation to the charged wire fraud scheme. Second --
03-725 +++$+++ 7812 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where? Using a gun where?
03-725 +++$+++ 7813 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the United States, Justice Ginsburg.
03-725 +++$+++ 7814 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why didn't you prosecute him for that?
03-725 +++$+++ 7815 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That crime depended upon the validity of the wire fraud charges, because the crime was use of a gun during in relation to this wire fraud scheme.
03-725 +++$+++ 7816 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that really doesn't get you anywhere, does it? I mean, if the United States says, "We don't want this gun offense to be prosecuted unless there's a wire fraud prosecution," that doesn't tell you anything as to whether there ought to be a wire fraud prosecution.
03-725 +++$+++ 7817 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, what it tells you, Justice Souter, is why the United States has an interest in enforcing a law that facially is written to cover schemes to defraud that are carried out using the United States wires.
03-725 +++$+++ 7818 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's -- but that's a reason for extending the statute to everything, to everything --
03-725 +++$+++ 7819 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Scalia --
03-725 +++$+++ 7820 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- reading "property" to mean anything at all. I mean, what you're saying is, the broader you read this statute, the more bad guys we're going to catch. I'll stipulate that. Of course it's true.
03-725 +++$+++ 7821 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Scalia, I'm starting from the proposition that the language of the wire fraud statute textually applies to this scheme, and Petitioner's argument is that, because of the common law revenue rule, the statute should be read to exclude schemes to defraud a foreign government of tax revenue. And the fact that a foreign government is defrauded of tax revenue does not mean that the United States does not have an independent interest in rooting out that scheme and prosecuting it. In addition to the collateral criminal conduct that such schemes can spawn, the creation of such schemes indicates a criminal mind and a criminal group that can turn its techniques for used -- using to smuggle into Canada, also to smuggle back into the United States or to victimize other victims in the United States.
03-725 +++$+++ 7822 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about evading a Cuban tax law that we think -- that many people would think is an unjust tax law? I mean, one of the things I'm worried about is that this gets us into foreign policy. Are you sure that we always want to enforce the tax laws of foreign countries through this fraud statute, no matter what those tax laws happen to be?
03-725 +++$+++ 7823 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The United States has prosecutorial discretion to determine when to invoke the statute and in what interests it should be served.
03-725 +++$+++ 7824 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It may well, but when it comes here, this Court is going to have to decide -- we'll just approve whatever you want to prosecute and let you not prosecute whatever you want?
03-725 +++$+++ 7825 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is no provision in the statute, Justice Scalia, for this Court to second-guess foreign-policy determinations that are made --
03-725 +++$+++ 7826 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, not just foreign policy. The White Russians come here because they don't want to pay Lenin's taxes designed to equalize all individuals, in terms of property. Country A has a tax law that makes everybody a criminal because nobody really ever pays all the taxes. Country C has a set of laws that tax bibles. Country D has a -- I mean, you know, we can spin out the examples endlessly, and they're not farfetched. So take all the arguments from last week, called "any court arguments," cross- -- or two days ago -- just let's cross-reference them. The problem is complexity of tax law. The problem is many, many, many would be contrary to American policy. And the problem is, nobody really knows what they are; indeed, they don't even know what American tax law is, no single individual, I suspect. Let's put in Italy, France, Byelorussia, Belarus, Ukraine, Saudi Arabia, and 35,000 others. Everybody becomes a criminal. And then we say, "Don't worry, we'll only prosecute the real bad ones." That's the argument, I think, on the other side, and I'd like to hear your response.
03-725 +++$+++ 7827 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, I don't think there's any reason to assume that everyone becomes a criminal. What this --
03-725 +++$+++ 7828 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, only people who come over here because they don't want to pay taxes in those countries. Sometimes we would agree with them --
03-725 +++$+++ 7829 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, in order to violate the wire fraud statute, you have to use deception in order to deprive another --
03-725 +++$+++ 7830 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, they don't tell Lenin that they're coming --
03-725 +++$+++ 7831 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that wouldn't involve the use of the United States wires --
03-725 +++$+++ 7832 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and they write to each other. They have a cousin, in Brooklyn, who forwards them the money to get out.
03-725 +++$+++ 7833 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, if one stipulates that that violates the wire fraud statute or that there's enough conduct that does, the question still comes down to whether the United States chooses to prosecute that case. This is not a --
03-725 +++$+++ 7834 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The question comes down to whether this statute, which doesn't have to be read that way, ought to be read that way, whether it makes sense to read it that way. What about -- does Canada have an income tax?
03-725 +++$+++ 7835 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure of Canadian tax law.
03-725 +++$+++ 7836 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let's assume --
03-725 +++$+++ 7837 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the context of this case --
03-725 +++$+++ 7838 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- Canada has an income tax. Would you -- would you prosecute a Canadian who files a deceptive Canadian income tax return?
03-725 +++$+++ 7839 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not for using Canadian facilities to do so.
03-725 +++$+++ 7840 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no, no, from this country. He's -- you know, he's a snow goose and is in Florida when he files his return.
03-725 +++$+++ 7841 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He files it electronically.
03-725 +++$+++ 7842 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah.
03-725 +++$+++ 7843 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The wire fraud statute is applicable to schemes to defraud, generally speaking. The questions in this case are whether there is a common law rule that should be read to provide background.
03-725 +++$+++ 7844 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ One reason for it -- I just -- you don't seem to know completely about Canadian law. How much do you know about the tax law of Vietnam? Because Los Angeles is filled with Vietnamese refugees, many communities of such people in the United States. Do we know how many of them perhaps might owe taxes under the law of Vietnam, and maybe are talking to each other about whether they really want to pay it?
03-725 +++$+++ 7845 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think this is a realistic problem, Justice Breyer, that should require the Court not to read a statute whose language --
03-725 +++$+++ 7846 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what about the wealth tax in France?
03-725 +++$+++ 7847 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are a variety of taxing schemes all across the world. The question that the United States has to make when it determines whether to prosecute a wire fraud scheme is whether it's in interest -- in the interest --
03-725 +++$+++ 7848 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Dreeben, at the beginning of your argument, you said there were four federal interests you were going to identify. You've been able to identify one. You don't want them running around with guns. What are the other three?
03-725 +++$+++ 7849 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The other three are --
03-725 +++$+++ 7850 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The second one, which I began to allude to before hearing some questions about -- foreign government.
03-725 +++$+++ 7851 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Before you were asked a brief question.
03-725 +++$+++ 7852 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- are that people who engage in schemes in this country are capable of then using the same techniques against victims in this country. The third reason is that the creation of international schemes to defraud, like the smuggling scheme in this case, poses independent threats to the United States Government because international criminal organizations are particularly difficult for the United States to deal with. And the fourth reason is that it is an offense to a foreign government, the United States Executive Branch may conclude, to allow our soil and our wires to be used to perpetrate a smuggling scheme against a foreign government with the United States doing nothing about it.
03-725 +++$+++ 7853 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if we're concerned about offending the foreign country, then isn't the way to go, in fact, the way Congress has gone in this area, we negotiate treaties? I mean, one of the reasons why we go the treaty route are the kind of problems that Justice Breyer brought up, we want to have reciprocal treaties. We want two things. We want to make sure that it's a basically fair system that we're dealing with. On the other hand, we want to say, "If we do anything with respect to your taxes, we want to make sure that we get the same benefit from you with respect to ours." So never mind the revenue rule, isn't it pervasive that -- when it comes to enforcing tax claims, that the route that Congress has chosen to go, and the Executive, as well, has been the treaty route?
03-725 +++$+++ 7854 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, those are tax treaties designed to mutually assist the countries to collect taxes. This is a prosecution directed at fraud. The collection of taxes in a cooperative, reciprocal manner between governments implicates very different interests than the United States has when it seeks to combat people who have intended to devise, or have devised, a scheme to defraud in the --
03-725 +++$+++ 7855 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ One of --
03-725 +++$+++ 7856 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- United States.
03-725 +++$+++ 7857 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- one of -- one of the last interests that you mentioned, about offending foreign governments, well, on the face of this, it would seem, the one that -- the country that's been done out of taxes is Canada, not the United States. So, we should help Canada, if it's interested in collecting revenue from these people or trying them for a criminal offense, to do that. It -- I asked Ms. Brill, Have they been indicted in Canada? She said yes, but she said it's -- they had not -- there has not been a request for extradition. Is that -- is that --
03-725 +++$+++ 7858 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's my understanding, as well, Justice Ginsburg. And the pursuit of this prosecution by the United States reflects that when United States citizens engage in fraudulent conduct on our soil, our Government has a distinct interest, from Canada's interest, in pursuing the prosecution of this case.
03-725 +++$+++ 7859 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How long has this statute been on the books, this wire fraud statute? Pretty old statute.
03-725 +++$+++ 7860 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 1952. And its antecedents are the mail fraud statute, which was enacted in 1872.
03-725 +++$+++ 7861 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How many prosecutions like this have there been? When was the first one?
03-725 +++$+++ 7862 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This --
03-725 +++$+++ 7863 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ For, you know, using the mails or interstate commerce to defraud a foreign government of taxes?
03-725 +++$+++ 7864 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This type of prosecution became more common in the 1980s when Canada greatly increased its taxes on importation of tobacco and alcohol.
03-725 +++$+++ 7865 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ More common, or didn't exist at all before the 19- -- do you know of any case before --
03-725 +++$+++ 7866 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I'm not aware of any case before --
03-725 +++$+++ 7867 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- before the 1980s?
03-725 +++$+++ 7868 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
03-725 +++$+++ 7869 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Doesn't that suggest to you that the statute isn't naturally read to cover stuff like that?
03-725 +++$+++ 7870 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I think the statute --
03-725 +++$+++ 7871 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We didn't have smugglers before then?
03-725 +++$+++ 7872 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, of course there were smugglers before then, but the statute, on its face, is broad. And the only justification -- the only two justifications for seeking to read it narrowly are, first, that there's a common law revenue rule that forms a backdrop for the construction of the statute. That is wrong, the Government submits, because there is no common law revenue rule that has ever been articulated that says one country cannot prosecute people in that country for defrauding a foreign government of tax --
03-725 +++$+++ 7873 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's the second reason?
03-725 +++$+++ 7874 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The second reason is the claim that to deprive a foreign government of money by not paying tax revenues is not common law fraud.
03-725 +++$+++ 7875 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Well, and you have arguments against both of those two. Which arguments are at least -- at least -- arguable? What about a third rule, the rule of lenity?
03-725 +++$+++ 7876 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Scalia --
03-725 +++$+++ 7877 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If we -- if we are unsure, if it's a close question whether it's property, if it's a close question whether we're enforcing the tax laws of Canada by prosecuting somebody for violating the tax laws of Canada, if that's a closed question, why doesn't the rule of lenity apply?
03-725 +++$+++ 7878 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if the Court concluded that the question was not susceptible of resolution by resort to the usual tools of statutory construction, then you would apply the rule of lenity. But it's our submission that neither of these two theories --
03-725 +++$+++ 7879 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But may I ask this question? I think you have conceded, in a footnote -- and maybe you're -- almost conceded -- that if this were a RICO case, a civil RICO case, that the Congress enacted the RICO statute against this background rule and that perhaps the RICO case could not go forward. What if it were a federal RICO case and -- the same facts -- would the RICO statute be qualified by the revenue rule?
03-725 +++$+++ 7880 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it would not, Justice Stevens, and that's because of the precise distinction that I drew in response to Justice Scalia's question. This is a suit by the United States Government, as Plaintiff, not by a foreign government, as Plaintiff or prosecutor. The revenue rule essentially concerned with interests of sovereignty. One foreign government should not be able to come into our courts and enforce its sovereign power by using our courts to collect taxes from our citizens.
03-725 +++$+++ 7881 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about the other reasons underlying it, which is what I was trying to get at before? I see, literally, that the common law -- you know, the enforcement rule, this is not literally enforcement. But what I was driving at with my questions is, even though literally it's not, the problems of complexity, the problems of knowability, and the problems of there being so many, many foreign tax laws that we might think are basically unfair, that those considerations apply here, just as they do with the enforcement rule, and then add the fact that turning people into criminals under threat of prosecution by the Federal Government is really very much equivalent to enforcing the foreign rule in a court. I mean, that's the whole thing spelled out. And I meant it seriously, though I used foreign examples to, sort of, drive the point home. What is your response to that?
03-725 +++$+++ 7882 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Breyer, first of all, the complexity of foreign tax law is something that would defeat a federal prosecution in which we need to show specific intent to defraud if the law were not sufficiently clear for us to be able to meet that burden. This case illustrates the kind of prosecution that will be brought. There are taxes that are due upon the importation of alcohol. The Petitioners arranged, through the wires, to bring alcohol from Maryland up to New York, and then they got it across the border by not answering questions when asked by customs officials and by not going to secondary inspection when they were asked. In order to bring a criminal prosecution that requires specific intent to defraud, the government is not going to be relying on obscure systems. As to the concern about the enforcement of tax systems that the United States may believe are -- is unfair, that is the prerogative of the Executive Branch to determine in deciding whether a prosecution should be brought in a particular case. This Court has repeatedly recognized that the Executive Branch is the preeminent branch in the area of foreign affairs --
03-725 +++$+++ 7883 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ To go to one more aspect of the statute which I don't think you've addressed, Congress said that -- with respect to the wire fraud and mail fraud and, I think, other things -- that restitution to the victim is mandatory, that it's not left up to the government to decide restitution or not. Except here restitution sounds very much like enforcing Canada's taxes, so you have conceded no restitution. But it seems to me that Congress thought of the wire/mail fraud statutes as cases in which there would be restitution, and that suggests that they didn't envision foreign taxes to be the object of the scheme to defraud.
03-725 +++$+++ 7884 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, the syllogism doesn't track, because the entire scope of the revenue rule, as defined in the common law cases that can be pointed to as the background principle, has to do with a foreign government, or someone acting on its behalf, coming into this country's courts to enforce its tax rules. Here what you have is the United States Government determining that it is in the interest of the United States to bring a criminal prosecution. Now, in this case, the prosecutor did concede below that restitution was not appropriately ordered. That's not the position of the United States. The position of the United States is that restitution under the mandatory statute should be ordered and it does not infringe the revenue rule. But there are --
03-725 +++$+++ 7885 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, how could that be, because restitution is to the victim? The victim is Canada. You collect Congress -- or Canada's tax, and you give it to Canada. Is there any other kind of restitution?
03-725 +++$+++ 7886 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, there isn't, Justice Ginsburg, but the revenue rule isn't of such a broad scope that it applies to efforts by the United States Government to secure punishment by -- for a criminal conviction. But, Justice Ginsburg, if the Court were to disagree with that and were to believe that restitution, even when it's been sought by the United States -- not by a foreign government, in its own right, with the power to instigate a lawsuit -- but that even when the United States does it, that somehow falls within the parameters of the common law revenue rule, then the answer to that problem would be to interpret the restitution statute against the background of the revenue rule, not to interpret the wire fraud statute against the background of the revenue rule and hold that a prosecution by the United States is wholly barred. The Petitioner's submission here is really rather extraordinary --
03-725 +++$+++ 7887 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The restitution statute is not ambiguous at all; whereas, this statute has a number of ambiguities in it. And if I had to find my way out of the restitution problem, I would pick the ambiguous statute to get out, rather than simply saying, "Well, though this restitution statute says this categorically, we will ignore it, because if we didn't ignore it, we would be enforcing the revenue laws of another country." There's nothing against enforcing the revenue laws of another country, if we want to; this is just a question of statutory interpretation. Should this ambiguous statute be interpreted that way? If Congress said, "We're going to enforce Canada's tax laws," there's nothing wrong with that. But --
03-725 +++$+++ 7888 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia --
03-725 +++$+++ 7889 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you have two statutes. One of them seems to be quite ambiguous. The other one is categorical, you get restitution in all cases. Now, how do I wiggle out of it?
03-725 +++$+++ 7890 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's a difference --
03-725 +++$+++ 7891 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Obviously, I wiggle out of it with the ambiguous statute.
03-725 +++$+++ 7892 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- there's a difference, Justice Scalia, between an ambiguous statute and a broad statute. The wire fraud statute is unequivocally broad, and it has been so interpreted. It's not ambiguous on the question of whether it applies to schemes to defraud that may involve foreign victims; it says "any scheme to defraud." And I think, as Justice Kennedy's questions pointed out earlier, if there were a scheme to defraud a foreign business interest in Canada or a foreign governmental interest in Canada relating to some commercial venture, the wire fraud statute would apply, and --
03-725 +++$+++ 7893 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about -- what about a scheme --
03-725 +++$+++ 7894 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you haven't told me -- you haven't told me how you get out of the restitution statute. There's no ambiguity there, and it is not a rule of law that you can't -- it's unconstitutional to enforce the tax laws of Canada. Since it's entirely feasible, and since the text is categorical, how do you get out of the restitution statute?
03-725 +++$+++ 7895 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Here is how I get out of it, Justice Scalia. If you think, as I do not, that the revenue rule would bar restitution at the behest of the United States in a criminal prosecution, there is a background principle that says when there is an established rule of the common law, Congress legislates against that background, and unless it makes its intent clear and unequivocal to overcome that background rule of the common law, then the statute will not be interpreted to be in derogation of it. It was that principle that formed the basis for the government's view that Canada cannot come in under the RICO statute --
03-725 +++$+++ 7896 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that view is in -- somewhat in tension with your view that the common law revenue rule doesn't stand in the way of this prosecution. If you have to interpret the statute in light of the general rule that one country doesn't mess with another country's taxes, absent a treaty.
03-725 +++$+++ 7897 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Ginsburg, there is no common law rule that one country doesn't mess with another country's taxes. What there are, are a set of cases that deal with specific problems in which foreign taxes were at issue. And in all of the 20th century versions of this problem, what you had is a foreign government or an entity, acting at the behest of a foreign government, coming into another country seeking to use that country's courts to enforce its own tax rules. And in that context, the justifications for saying that one country will not enforce another country's revenue laws have to do with the sovereignty interests of the host country. One country, when it seeks to obtain revenue to carry out its own governmental policies, is doing something fundamental to its sovereign existence, and there's no obligation of the United States to assist the foreign government in using its court system to achieve those independent sovereign aims, no prohibition on it, either. As Justice Scalia pointed out, it's not unconstitutional, if Congress wanted to allow it. But countries, historically, have not. And that principle does form an important backdrop --
03-725 +++$+++ 7898 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Have countries also -- just -- here, I don't know, in respect to the principle -- would it have been viewed as contrary to the principle if a country were to pass a law -- say, England were to pass a law saying it is a crime in England not to pay French taxes? I'm not saying they couldn't do it; I'm just saying, would a law like that, saying it is a crime in England not to pay French taxes -- would it have been viewed as contrary to an abrogation of -- or a -- you know, whatever you call it -- a derogation from the common law revenue rule?
03-725 +++$+++ 7899 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that that's essentially the same question in this case, with the one significant difference that here there is a domestic --
03-725 +++$+++ 7900 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But do you see why I want to characterize it? I mean, would you characterize -- my criminal statute's absolutely clear -- the clear is, it is a crime in England not to pay French taxes. Now, would you, or would scholars, or whoever, knew about the common law revenue rule, would they have said, "There is a derogation from the common law revenue rule," or would they have said, "It has nothing to do with it"?
03-725 +++$+++ 7901 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't know what scholars would have said about it --
03-725 +++$+++ 7902 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, what would you have said?
03-725 +++$+++ 7903 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This is what I would say about it.
03-725 +++$+++ 7904 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah.
03-725 +++$+++ 7905 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ When you're dealing with the principle that a statute of the United States will not be construed to be in derogation of a common law unless it's clear that that's its purpose, the Court should be very careful in defining what the parameters of the common law are. The Court should not take a common law rule and treat it as some dynamic entity that has capability of growing a dimension that is not consistent with its purposes and that it had never assumed in any decided case as a means of telling Congress, "You can't do what you have done." So I would say, Justice Breyer --
03-725 +++$+++ 7906 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We haven't told -- no, no, no, no, no, no, we're not telling Congress, "You can't do what you have done." We're saying, "Congress hasn't done this."
03-725 +++$+++ 7907 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the only reason you would say that Congress hasn't done it, Justice Scalia, is if you concluded that -- and I would ask Petitioners what their best citations are, because I have not been able to find them -- what cases indicate that a country cannot bring the kind of prosecution that the United States did here to vindicate its own independent sovereign --
03-725 +++$+++ 7908 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Nobody says they can't do it. That's why I asked you my question. My question is simply whether you would consider an absolutely clear law -- we will -- we -- it is a crime not to pay your French taxes. I'm asking whether you would consider that -- I'm not saying they can't do it; I just want to know -- would it be in derogation of the common law principle?
03-725 +++$+++ 7909 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would probably be in derogation of a more --
03-725 +++$+++ 7910 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's what --
03-725 +++$+++ 7911 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- fundamental principle.
03-725 +++$+++ 7912 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not the revenue rule --
03-725 +++$+++ 7913 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Not the --
03-725 +++$+++ 7914 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but a more fundamental principle that one country usually does not legislate with respect to extraterritorial acts.
03-725 +++$+++ 7915 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That would be another one, too.
03-725 +++$+++ 7916 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But if you --
03-725 +++$+++ 7917 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose they -- I -- that's why I want to know --
03-725 +++$+++ 7918 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that's not applicable here, either, Justice Breyer, because the crime involves wire fraud in the United States.
03-725 +++$+++ 7919 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, but why isn't it applicable to the extent that there seems to be a mandatory obligation to order restitution? And it seems to me that the restitution that would be ordered would be just as much in derogation of the common law principle as the out-and-out collection in Justice Breyer's example.
03-725 +++$+++ 7920 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, again, to say that it's in derogation of the common law principle assumes that the common law principle has applicability to one country seeking to vindicate interests of its --
03-725 +++$+++ 7921 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but I -- a moment ago, you said, "Okay, we'll assume that there would be some derogation," in Justice Breyer's example. I don't see why you don't come to the same conclusion with respect to the restitution aspect here.
03-725 +++$+++ 7922 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the derogation that I was talking about with respect to Justice Breyer is punishing conduct that occurs entirely extraterritorially. This is not conduct that occurs entirely --
03-725 +++$+++ 7923 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, but the revenue -- the revenue rule does not rest simply on the rationale of non-extraterritorial enforcement. It has -- it has other rationales: difficulty of understanding what the revenue rule is; the -- you know, the problems of policy; there are lots of revenue rules in foreign countries that we certainly wouldn't want to enforce, and so on. It's not just extraterritoriality. And those -- those policies would be just as much implicated by the -- by the restitution as by the out-and-out enforcement in Justice Breyer's example.
03-725 +++$+++ 7924 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Souter, I think that the policies underlying the revenue rule are narrower than the ones that you have articulated; but, even more to the point, they are not justifications that found their way into any holdings that would lead a reasonable legislator in 1952, when the wire fraud statute was enacted, to conclude that this is a rule that I'm going to have to specifically --
03-725 +++$+++ 7925 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, perhaps --
03-725 +++$+++ 7926 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well -- I'm sorry.
03-725 +++$+++ 7927 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, go on.
03-725 +++$+++ 7928 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, you.
03-725 +++$+++ 7929 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I was going to say, perhaps there were no specific holdings, because it would have been regarded as, kind of, a bizarre derogation of the rule in the first place. Nobody had dreamed up this scheme earlier.
03-725 +++$+++ 7930 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I was about to say the same -- the same thing. You keep saying there are no cases that do this. Are there -- are there -- are there cases, before 1980, which do what you want to do -- that is, to use our fraud law, or something, to effectively enforce Canada's -- or some foreign country's tax law?
03-725 +++$+++ 7931 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but what I would say about --
03-725 +++$+++ 7932 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No.
03-725 +++$+++ 7933 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the revenue rule is that it is a shrinking principle of the common law, not one that has been growing. It originally started out as a principle that allowed countries to avoid invalidating contracts that they believed were in furtherance of commerce. It gradually came under attack, because what it said is that the United States will not notice that a foreign country's laws have been violated in the formation of a contract, and so the contract will be enforced. Commentators recognized that that was contrary to principles of comity and recognition that each country does have a reciprocal interest in acknowledging each other's laws. In the 20th century, those contract cases completely drop out of the picture, and what becomes left are sovereignty cases where a country is seeking to exert its sovereign power inside the United States or inside a foreign country -- the United States, itself, tried it once in Canada -- to collect taxes. And countries said, "We're not going to do that. We're going to leave it to the treaty process." But the rationales that Justice Breyer and Justice Souter have articulated, about complexity of foreign law and odious foreign tax systems, have never been the driving force behind the revenue rule. It's been --
03-725 +++$+++ 7934 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I got your point. I think it is that -- in my answer to my clear example, you would say no, that's not in derogation for the reason that there's an independent local reason for doing it. It's not being done to -- whether it has that effect or not, it's not being done in order to collect the foreign tax.
03-725 +++$+++ 7935 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
03-725 +++$+++ 7936 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's been your response throughout.
03-725 +++$+++ 7937 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct.
03-725 +++$+++ 7938 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay, I --
03-725 +++$+++ 7939 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What you have instead is a law of the United States that's enacted to serve perfectly valid interests that the United States Government has in rooting out fraud in this country and in dealing with schemes to defraud that are created here. And for the Court to say that, "We don't like these kinds of prosecutions, because we're concerned about really bad foreign tax systems, and we're concerned about complicated law, and we're concerned that some common law rule that had never actually assumed the scope that Petitioners ascribed to it, should be formed -- read as the background principle for the interpretation of this statute" is not a principle that finds any support in the construction of federal --
03-725 +++$+++ 7940 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Dreeben, can I ask you -- this is such a curious case. You were very candid in telling us that when Canada put these astronomical taxes on tobacco and alcohol, that was almost an invitation to smugglers. Did we have any discussions with Canada -- I mean, they do have that border, which is rather easy to cross -- about what we were going to do when they put the taxes on liquor sky-high?
03-725 +++$+++ 7941 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I am not aware, Justice Ginsburg, of what specific law enforcement conversations occurred, but I can tell you that there is extensive law enforcement cooperation with Canada, as a close neighbor, and that the interests of the United States very much do favor our policing against smuggling here, and Canada policing against smuggling there. Thank you.
03-725 +++$+++ 7942 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Dreeben. Ms. Brill, you have four-and-a-half minutes left.
03-725 +++$+++ 7944 +++$+++ FALSE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. The common law cases universally say that it does not matter who is bringing the claim. It can be the foreign government or it can be another person.
03-725 +++$+++ 7945 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can I just ask you to tell us what your strongest case is? Because they did raise that question.
03-725 +++$+++ 7946 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure. On the -- on the issue of the identity of the person bringing the claim, the contract cases, Holman and Boucher, stand for that proposition, and the Peter Buchanan case, which came down in 1950, just before the wire fraud statute was enacted -- this was in the Appellate Court in Ireland -- it says, "It is not a question whether the plaintiff is a foreign state or the representative of a foreign state or its revenue authority. In every case, the substance of a claim must be scrutinized. And if it then appears that it is really a suit brought for the purpose of collecting the debts of a foreign revenue, it must be rejected." That's at 1955 A.C. 529. And so with the -- with the Mandatory Restitution Act, this clearly is something to collect the debts of a foreign nation. And the sentencing scheme that Justice Ginsburg alluded to earlier, in which the sentences were enhanced based on the intended loss, demonstrate that this is an enforcement action. Stringam versus Dubois, which is an Alberta case from 1992, involving -- the plaintiff there was an executor of a probate estate, and the court said, "The identity of the plaintiff in the action is not vital if the action indirectly has the effect of enforcing revenue laws of a foreign country." That's at 135 A.C. at page 70. And the way the revenue rule has been cited repeatedly is that it -- what it prevents is not just direct enforcement, but direct or indirect enforcement. And so it is -- the fact that there have not been criminal prosecutions, it clearly would have been in derogation of the common law for a -- for England to pass a statute saying it is criminal in England to break the laws of France.
03-725 +++$+++ 7947 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ See, he's saying it isn't, for the reason that, he says, that if England did it for independent reasons, it wasn't doing it because it wanted to help France get it's money, that then it wouldn't have been in derogation. Of course, it would have been legal, either way, but he says it wouldn't have been in derogation, for that reason.
03-725 +++$+++ 7948 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Well, it clearly would have. There was no common law practice -- we have -- we have not found, in all the research -- and the Government has not found -- any example of a criminal prosecution -- not just in this country; anywhere in the world -- to -- deriving from the violation of a foreign government's tax. And so --
03-725 +++$+++ 7949 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're saying, in effect, that derogation is an effects test, not an intent test.
03-725 +++$+++ 7950 +++$+++ TRUE +++$+++ MS. BRILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. Yes, Justice Souter. And the -- in terms of what the government's interests are, there were no deceptive acts in this country. The way the Government gets a material misstatement is by a failure to disclose at the Canadian border, which only -- even though they did not put in evidence of what the -- that Canada even had a law requiring disclosure, the only way there could have been any kind of material misstatement would be if Canadian law required it, not if -- not anything that happened in the United States. In Cleveland, the Court was very clear to point out -- one of the reasons to adopt a rule of lenity in interpreting the mail fraud statute and the wire fraud statute is because violations serve as a predicate for RICO actions and for money-laundering violations. And so what the government's position is, is that we should carve out this ad-hoc exception and allow wire fraud prosecution, even though we would not allow any kind of a civil RICO action and even though we're going to have an ad-hoc exception for the Mandatory Victims Restitution Act. But what the Court said in Cleveland is, the way we should do this is by adopting a proper interpretation in the first place, not by -- of the wire fraud statute -- not by having ad-hoc exceptions. And the reference to prosecutorial discretion that there should be faith that the Government will only prosecute, I guess, what the Government regards as exceptional cases is not something that can provide any business involved in an international transaction with any -- with any comfort. And thank you very much.
03-725 +++$+++ 7951 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you. The case is submitted.
03-750 +++$+++ 7955 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ Mr. Boas, the Court will hear argument in Small against the United States.
03-750 +++$+++ 7957 +++$+++ FALSE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: This case presents the issue of whether, when deciding the meaning of a statute, we will focus, as the Government suggests, on two words only, any court, or whether we will look at the statute as a whole, whether we will consider the statute as a symmetrical and coherent regulatory scheme and decide the meaning of the statute by appreciating how sections relate to one another. In this particular case, 922(g)(1) of 18 U.S. Code is a -- represents a merger of two old sections, title IV and title VII, that were passed in 1968 in the Omnibus Crime Control Act. In -- in those -- in that statute, we had two redundant and overlapping sections, and one talked about prohibiting persons who have been convicted in any court of a crime punishable by more than a year. One, title VII, talked about prohibiting persons convicted in any court of the United States or a State of a felony. There were different penalties, slightly different classes of people. Title IV focused more on the receiver; title VII more on the possessor. But nothing -- nothing about the -- these two titles, about the legislative history suggests that Congress at any time meant something different from the term, any court, in title IV and any court of the United States in title VII. And when these two were merged in 1986 in the Firearms Owners' Protection Act, again, nothing suggests, nothing in the comments, nothing in the statute, that these two terms -- that the elimination of the language, any court of the United States, was --
03-750 +++$+++ 7958 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I guess we have held, though, several times that Congress meant to define very broadly when it enacted felon in possession of firearm statutes. Did we not?
03-750 +++$+++ 7959 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's -- that's correct, Justice O'Connor. However --
03-750 +++$+++ 7960 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it makes it a tougher case when you use the word any because we've given the -- the word any generally a broad definition.
03-750 +++$+++ 7961 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, earlier this year in the Nixon case, this Court said that when we look at any -- and that was a case dealing with the meaning of any entity. Did it mean any entity, public or private, or any private entity? The Court said any can and does mean different things depending upon the setting, and the Court said when using it broadly would lead to strange and indeterminate results, we'll give it a more narrow reading, which the Court did. Now, you're right, Justice O'Connor. This Court has said that the purpose of the felon in possession statute was to be broad and sweeping, but the Government reiterates that view, citing repeatedly three cases, Scarborough, Bass, and Lewis, and all three of those cases in which the Court referred to Congress' comments and this Court's own comments about the broad sweep of the statute were 1202(a) cases. And so notwithstanding the fact that the Court said this is a broad statute, each one of those cases, Lewis, Bass, and Scarborough, were cases where by definition the prohibition was against persons convicted in any court of the United States or a State. So that language doesn't help the Government at all because those were 1202(a) cases which limited specifically the Court to any court of the United States. So to take the -- and I -- and -- the simplistic view that as the -- as the Fourth and Sixth Circuit did and as the Government does here, that any means any, without regard to the rest of the statute, is simply -- is -- is too narrow a focus. Let's look at the statute. It's true that the word -- the term, the two words, any court, is not defined. But if we look in the definitions section, the term, crime punishable by more than a year, is defined. And so what we should really be focusing on is the phrase, convicted in any court of a crime punishable by more than a year. And that definition says the term, crime punishable by more than a year, excludes any State or Federal antitrust or business regulatory offense. Now, if we exclude from the definition of crime punishable by more than a year and the Government's -- if we exclude from that any State or Federal antitrust law and the Government's interpretation is adopted, then we're left with the anomalous result that if a person is convicted of an antitrust offense in this country, they're allowed to possess a firearm. If they're convicted of one in France or England, they can't.
03-750 +++$+++ 7962 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are there any such cases? I mean, I never heard actually --
03-750 +++$+++ 7963 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
03-750 +++$+++ 7964 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- when people -- no. I mean, are there any cases in which France or England has convicted people of an antitrust violation punishable by imprisonment for more than a year? I -- I didn't know that their antitrust laws had a criminal aspect, though I haven't looked it up.
03-750 +++$+++ 7965 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Nor have I --
03-750 +++$+++ 7966 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Fine. Well, I -- I've never heard if anyone in any foreign country, other than ours, though I gather my law clerk found that in Japan, in fact, Japan does have a criminal antitrust law. They may be the only ones outside the United States, and I don't know that anyone has ever been convicted under it because they're not too -- or they didn't used to be too fierce on antitrust enforcement.
03-750 +++$+++ 7967 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, 921(20) or --
03-750 +++$+++ 7968 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm just wondering how anomalous or your anomaly is. (Laughter.)
03-750 +++$+++ 7969 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- the limitation not only excludes antitrust offenses, it excludes any business regulatory offense.
03-750 +++$+++ 7970 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And are there such?
03-750 +++$+++ 7971 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of course. I think --
03-750 +++$+++ 7972 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, maybe.
03-750 +++$+++ 7973 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-750 +++$+++ 7974 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't -- I don't -- but I just -- are we sure that there -- that, you know, that this anomaly exists?
03-750 +++$+++ 7975 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm certain that there are business regulatory crimes throughout the world.
03-750 +++$+++ 7976 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why did they say any State or Federal? I mean, in -- in a way this provision -- you -- you may say that the -- that the substantive effect of the provision supports your interpretation, but the text of the provision supports the Government's --
03-750 +++$+++ 7977 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
03-750 +++$+++ 7978 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- because if any only means State or Federal, there was no need to say State or Federal in this provision. You could have simply said any in this provision, just as you said it elsewhere. So one would think that they said State or Federal because they wanted to exclude foreign antitrust matters.
03-750 +++$+++ 7979 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this same limitation, Justice Scalia, existed as a limitation under 1202(a) where any court said any State or Federal court and the exclusion said any State or Federal court. It's consistent --
03-750 +++$+++ 7980 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I don't care how it got there. I'm just saying there -- there -- if -- if any means what you said it means, namely State or Federal, there would have been no need to limit this other provision to State or Federal because the whole statute would only cover State or Federal.
03-750 +++$+++ 7981 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but at some point in the statute, Congress has to give an indication of their intent, and this is where it is. For example, there's another limitation immediately following it which says it shall also not include any State offense which is described as a misdemeanor in the State and carries no more than 2 years.
03-750 +++$+++ 7982 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. Well, but -- but Justice Scalia's point -- and I -- I think he's correct -- is that this cuts at least as much in favor of the Government as you and probably more because you would make Federal and State unnecessary surplus.
03-750 +++$+++ 7983 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there has to be some indication --
03-750 +++$+++ 7984 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You don't -- you don't set forth the main qualification to the main definition in a -- in a later subsection.
03-750 +++$+++ 7985 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if we go further with 921(20), there's another limitation that again clearly deals with States, and that's the restoration of civil rights provision. The Government concedes in their brief -- and that was an effort to essentially statutorily reverse the Dickerson v. Banner Institute case -- that that applies to State situations. The idea that if a person receives a State pardon or his record is expunged, that wouldn't be a disqualifying factor. And they talk about the law of the foreign state being what determines whether it's a conviction or not. Now, clearly we're not looking at going to some pardon process in Germany or Uruguay to decide whether a person still has a conviction. Another part of the statute that's very clear, 924(e)(1). That's the armed career criminal section. That section says that if a person's who's convicted under 922(g)(1), our statute, and has three prior serious drug convictions in a court described in 922(g)(1), then they get 15 years. Now, that definition of serious drug conviction is a State or Federal conviction. Now, let's flip over to 21 U.S.C. 802(44), the drug statute where you have a similar recidivist type of statute where you go from a 5-year mandatory to a 10-year mandatory if you have a prior drug conviction. There in 802(44), a serious drug offense is defined as a State, Federal, or foreign drug offense. So we see that Congress can differentiate when it wants to. Now, they're --
03-750 +++$+++ 7986 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would -- would you concede that -- that this is at least sloppy drafting? Because they said any in one place, they said State or Federal in other places. Shouldn't they be -- be consistent in their terminology?
03-750 +++$+++ 7987 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, perhaps they should be more consistent, Justice Ginsburg, but the overall -- I mean, if you go down the list of the prohibitions in 922(g)(1), you can see that the thrust of this is -- is to deal with domestic situations. There's one that says you can't own a firearm if you're a -- a fugitive from law -- a fugitive from justice. That's specifically defined as a fugitive from another State within the United States.
03-750 +++$+++ 7988 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Boas, I think you make a strong argument that Congress probably didn't think of this particular problem. Do you suppose if at the hearings before the committee, the process of the legislation, some witness came in and said, do you realize this language is so broad it will cover the person who is convicted of a felony in Japan, as well as person who's convicted of a felony in Illinois, do you think they would have modified the statute?
03-750 +++$+++ 7989 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think they would have. I think that -- I don't concede that there was really a need to, but I think they would have because they would have said it's --
03-750 +++$+++ 7990 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, there would have been a need to under your view now.
03-750 +++$+++ 7991 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. But they would have historically going back to '68 and before, we always intended this to just cover domestic situations.
03-750 +++$+++ 7992 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I suppose somebody on the committee might have said, well, we don't want this kind of person to have a gun, and the fact he's convicted in Japan rather than in Brooklyn really doesn't make any difference with regard to the purpose of the statute.
03-750 +++$+++ 7993 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the individual is convicted in Japan, Justice Stevens, then he would not be under our immigration laws allowed to come to this country, and if he did come --
03-750 +++$+++ 7994 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but this person --
03-750 +++$+++ 7995 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- he'd be an illegal alien.
03-750 +++$+++ 7996 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the defendant in this case was convicted in Japan and he somehow got to the United States.
03-750 +++$+++ 7997 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because he's an American citizen.
03-750 +++$+++ 7998 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well --
03-750 +++$+++ 7999 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So -- but Congress can't cure every problem that exists in the world, and this statute is fairly comprehensive.
03-750 +++$+++ 8000 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are people really not allowed to come in if they've been convicted of any crime?
03-750 +++$+++ 8001 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Any crime that carries more than a year basically. It's pretty --
03-750 +++$+++ 8002 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose it was a crime like not wearing a veil if you're a woman in a country that -- suppose it was a crime like criticizing the government if you were in Soviet Russia. Suppose it was a crime like -- you know, there are all kinds of crimes that we -- we would never consider crimes --
03-750 +++$+++ 8003 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's --
03-750 +++$+++ 8004 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- and in other countries there are -- we don't let anyone in if they've done any of those things?
03-750 +++$+++ 8005 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Well, those people will probably be seeking political asylum. Aleksandr Solzhenitsyn -- under the Government's interpretation, Nobel Prize winners would be precluded from -- Solzhenitsyn did 8 years in a Soviet prison because he said nasty things about Joseph Stalin. Two American women in Afghanistan, before the fall of the Taliban regime, were arrested and convicted because they possessed Bibles. Now, the Government says, well, these are anomalies. These don't occur often. But Congress had to be aware of the possibility of tinhorn dictatorships all over the world having court systems that were so devoid of due process that we have to take a look at whether we want to --
03-750 +++$+++ 8006 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the -- the court of appeals here said what it would -- it read in a check. It said it wouldn't read it to really mean any conviction. It had to be in a system that was fundamentally fair. Wasn't that what the court of appeals said?
03-750 +++$+++ 8007 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's what they said, but -- but when and how do we decide that? There's another offense under 922(g) -- or under 922 that makes it a crime to give a false answer on a -- a firearms questionnaire when you go to buy the gun -- buy the gun. Now, what does the individual do? Does he say to the firearms dealer, do you have a list of countries where our Government has decided it's a fair enough system that I can say no -- yes, I have a conviction in view of the list that it's an unfair system so I can say yes, I have no -- or no, I have no convictions? I mean, it -- one of the reasons where we employ, for example, the rule of lenity, is -- is a person put on notice of what it is that's criminal and what is not. When does it come up that the system isn't fair enough to count?
03-750 +++$+++ 8008 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I think -- let -- let's put, you know, the worst for you. If it were put to Congress, which would you prefer, that -- that Solzhenitsyn not be able to have a gun or that the worst kind of violent criminal convicted and imprisoned and escaped from a foreign country who manages to get into this country can go in and buy a gun? Which -- which of these two would you prefer? And I think I'd say, well, you know, it's tough on Solzhenitsyn he can't own a gun, but he'll probably get over it. (Laughter.)
03-750 +++$+++ 8009 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what I'd prefer and what the statute means aren't necessarily the same thing, Your Honor. I'd prefer violent criminals who are dangerous not to have guns. But again, that --
03-750 +++$+++ 8010 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose you put the question to Congress, which would you prefer? Would you prefer the occasional person who's been convicted of a foreign court, comes over here, that this statute doesn't apply to him, or would you prefer that all the refugees from Eastern Europe and people who come from Arab countries and people who come from countries that have quite different systems in places all over the world discover that suddenly they're felons because of things they never would have dreamt of because they were perhaps convicted of selling gasoline on the open market or perhaps they were convicted of any of these religious crimes we've talked about, selling a Bible? Suppose you put that question to Congress.
03-750 +++$+++ 8011 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think Congress would say the perils and problems that exist by a blanket inclusion without any method of determining which count and which don't count of foreign convictions are too great. Now --
03-750 +++$+++ 8012 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if it's a -- if it's a matter of notice and -- then that's a separate issue. Plus the Government, it seems to me, should put on its form that this includes foreign conviction, and that solves that problem.
03-750 +++$+++ 8013 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but what if it's a foreign conviction where there's no due process? Is there a checklist that in that foreign conviction, did you have a jury, did you have the right to confront your accuser, did you have the right to remain silent? I mean, we all seem to realize that the Government's position that any conviction anywhere is too stark a place. And again --
03-750 +++$+++ 8014 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May -- may we go back to the -- the choice that you were given by Justice Scalia first and then Justice Breyer? I thought that someone who comes in here illegally and possesses a gun commits an offense.
03-750 +++$+++ 8015 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
03-750 +++$+++ 8016 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so there's not -- Congress would say to that hypothetical, we've got a third choice, much more sensible. Anybody who sneaks in here without permission and has a gun --
03-750 +++$+++ 8017 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
03-750 +++$+++ 8018 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- commits a crime.
03-750 +++$+++ 8019 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's one of the subsections of 922(g)(5). Anybody who's an illegal alien here illegally can't have a gun. Anyone --
03-750 +++$+++ 8020 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That doesn't cover Americans, of course --
03-750 +++$+++ 8021 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. It doesn't cover --
03-750 +++$+++ 8022 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- who go -- go and commit crimes abroad, are convicted abroad, and -- and come back to home sweet home and then get a gun. I mean, that seems to me extraordinary.
03-750 +++$+++ 8023 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- I didn't hear your --
03-750 +++$+++ 8024 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That seems to me extraordinary. I don't think Congress would have wanted that.
03-750 +++$+++ 8025 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think Congress can be said to have intended or envisioned that they would cure every problem in the world. It's a very, very narrow category of American citizens convicted abroad who come back here.
03-750 +++$+++ 8026 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I think if there was a problem that -- that they were going to leave unsolved, it is less likely the problem of having an American citizen killed by a gun toted by somebody who has been convicted of a crime abroad than it is the problem of somebody having been convicted abroad of some silly crime like wearing a veil or not wearing a veil or something else. If -- if it's either of those two problems that they meant to leave overlooked, I would say it's the latter. They might well have said, well, the courts will take care of that.
03-750 +++$+++ 8027 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, it's unclear what -- what their thought process was in this matter. But I can say this, that the narrow category that escapes the coverage of this statute -- there's nothing to indicate anywhere in any of the debates, in the language of the statute that that's what Congress intended. And again, if you look at the overall view here, I mean, fugitive from justice. It's limited to someone from the State. Person -- let's look at 922(g)(9). Very clear, incapable of misunderstanding. The same prefatory language. A person convicted in any court -- exactly the same, and it ends with the same language -- cannot ship, possess, receive. And what does it say? Instead of saying convicted of a crime punishable by more than a year, it says convicted of a misdemeanor crime of domestic violence. And that's defined as a State or Federal misdemeanor.
03-750 +++$+++ 8028 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where -- where is that defined?
03-750 +++$+++ 8029 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's defined in 921(a)(33), Your Honor. It's specifically limited. Now, here we are. A person who beats his wife in England can have a gun in this country, but a person who commits a business regulatory offense in Germany can't. It makes no sense. The -- it -- it's a very clear statement by Congress that a misdemeanor crime of domestic violence -- they're only intending it to be a State or Federal crime.
03-750 +++$+++ 8030 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Once again, that -- that cuts both ways. Why would they -- if the text reads the way you say it reads, why did they have to say is a misdemeanor under Federal or State law? Because it wouldn't have mattered. The only courts -- the only convictions that would be covered would be Federal or State convictions. They would not need that -- that qualification.
03-750 +++$+++ 8031 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At -- at some point a person has to be told what Congress was intending. This language goes back to '68 where the language in the exclusion limiting it to State -- excluding Federal and State convictions matched the language in the term, any court, in 1202(a), which was title VII. They were -- they were complementing each other. And -- and if you look at even as far back as the Batchelder decision in the '70's from this Court, the Court talked about these two being redundant, overlapping, the only difference being that one uses the term felony, one uses the term crime punishable by more than a year.
03-750 +++$+++ 8032 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Boas, when they combined these two --
03-750 +++$+++ 8033 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-750 +++$+++ 8034 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- and ones -- the 1202 did say Federal or State -- they made other changes, harmonizations. In the explanation of their consolidation of the two sections, to what extent did they discuss changes and the reasons for them?
03-750 +++$+++ 8035 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- they made no discussion of the reason for taking out the language, of the United States or of any State, and what they -- the only language was that we're intending to merge these into one statute --
03-750 +++$+++ 8036 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But they did -- they did explain other things --
03-750 +++$+++ 8037 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-750 +++$+++ 8038 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- other changes, but this one -- there's silence --
03-750 +++$+++ 8039 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly.
03-750 +++$+++ 8040 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- as far as I understand.
03-750 +++$+++ 8041 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and by keeping in the exclusions, by -- by looking at 924(e)(1) where it -- what's very important to me is that 924(e)(1) says if you have three prior drug -- serious drug offenses in a court referred to in 922(g)(1), you get 15 years. Those three prior three drug offenses in a court referred to in 922(g)(1) are State or Federal drug offenses by definition. It seems to me that it really couldn't be any more clear. And frankly, to the extent it's not totally clear and it could go either way, I think then the rule of lenity requires that it be decided with a more narrow construction, that is, that any court meant any court of the State or of the United States. I believe it was in the -- in the '90's when this Court's opinion, authored by Justice Thomas in I think it was called Alvarez-Sanchez, dealt with a statute, 3105 dealing with the admissibility of confessions in Federal cases and that they won't be inadmissible if they're taken by any law enforcement official more than 6 hours after the arrest. And the issue what does any mean in terms of any law enforcement official. And the Court said it means any State or Federal law enforcement official. Now, it didn't have to reach the issue of whether it included foreign law enforcement officials, but certain things are obvious without an -- an explanation. And you're right. There was some sloppy drafting here and it could have been more clear, but when we look at the statute as a whole and try to harmonize the various parts of that statute, it would be almost absurd to think, when we look -- and -- and maybe these anomalies won't occur all the time, as you point out, Justice Breyer, but it would almost be absurd to think that with all of these limitations, exclusions, when we run down the list under 922(g)(1), that Congress was talking about any court in the world. Now --
03-750 +++$+++ 8042 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let me -- let me ask you the question the -- the Chief Justice would ask, were he here, because he always asked this kind of a question. What -- if you had to pick your best case of ours which interpreted the word any in the way that you would like us to interpret here, what's -- what's the best case you have?
03-750 +++$+++ 8043 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd say -- that's -- there's a question --
03-750 +++$+++ 8044 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's a good question. He asks good questions.
03-750 +++$+++ 8045 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's a good question. (Laughter.)
03-750 +++$+++ 8046 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd say the Nixon case decided this year which said that any can and does mean different things depending upon the setting and whether it works strange and indeterminate results would be one of my best cases. There's -- when I sit down, I'll probably think of a better one, but --
03-750 +++$+++ 8047 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Maybe you can think --
03-750 +++$+++ 8048 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How -- how about --
03-750 +++$+++ 8049 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Maybe you can think of a unanimous case.
03-750 +++$+++ 8050 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well -- (Laughter.)
03-750 +++$+++ 8051 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And this is one I'm -- I'm surprised that you didn't cite, but it -- I don't think you did -- EEOC against Arabian American Oil Company, where the wording of the statute was anyplace outside the United States, title VII coverage, and this Court held that anyplace outside the United States did not mean that a U.S. employer operating abroad had to abide by the anti-discrimination norms with respect to hiring in some place abroad because Congress was thinking in terms of the inter-State sitting -- setting and not international.
03-750 +++$+++ 8052 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I'm not familiar with that case.
03-750 +++$+++ 8053 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That -- that was a decision by the Chief. So -- (Laughter.)
03-750 +++$+++ 8054 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's a good one -- that's a good one too, Judge -- Justice. I -- I -- there's -- there's another case that I'd refer to which is the -- the Gonzales case, which is cited by the Government. Gonzales is interesting because it deals with 924(c)(1), which is the section that says you get 5 consecutive years if you're convicted of -- 5 years consecutive to any other sentence if you're convicted of possessing a firearm during the course of a serious drug offense. And in that case, the Court concluded that any other sentence meant any State or Federal sentence, not just a Federal sentence. Now, the Government might argue that that helps them because the -- the defendant in that case wanted it to be limited to any Federal sentence because he was serving a State sentence, and the question was would the 5 years for the 924 violation be consecutive or concurrent, as the trial court gave it. But it -- what the Court did was say any depends on the context of the rest of the statute. And here, we think it means State and Federal. They didn't talk about foreign convictions. You know, it's interesting. It's ironic that -- that while we're debating how American citizens should be impacted by foreign convictions, the administration is unwilling to sign the treaty that would make American citizens subject to the International Criminal Court because there's concern about what would happen to Americans abroad, even in that court, not in a court in -- in Uruguay or in North Korea, but in the International Criminal Court. In fact, in the preliminary findings of the FOPA statute, the -- the Congress said -- and this Court doesn't have to decide and I'm not asking the Court to decide the Second Amendment issue, but Congress found the Second Amendment was a fundamental constitutional right. And the name of the statute is the Firearms Owners' Protection Act. Congress had in mind protecting the owners of firearms when necessary, and --
03-750 +++$+++ 8055 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You call that FOPA? That's the name of the statute? (Laughter.)
03-750 +++$+++ 8056 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's an unfortunate acronym, isn't it? (Laughter.)
03-750 +++$+++ 8057 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. The spelling is a little bit different, Justice Scalia. But Congress -- the -- the name of the statute tells you something about Congress' intent. The otherwise licit and blameless activity of possessing a firearm isn't the equivalent of selling drugs. Now, maybe if you have a prior drug offense and you're a drug dealer, under 802 of 21, Congress said you get your sentence doubled whether it's a State, Federal, or foreign conviction, but under 924(e) for a conviction under a court defined in 922(g)(1), the prior only ups your sentence if it's a State or Federal conviction. We can't ignore the overall statutory scheme here, which time and time again refers to domestic matters. The Government in their brief says foreign convictions are used all the time, and they give three examples. They say we recognize them for the purpose of extraditing American citizens. They say we recognize them because if you're convicted of a -- a sex offense in certain foreign countries, you have to register here. And they say we recognize them -- I forget what their third reason is. But there's no example that they gave or that they can give where a foreign conviction is ever used anywhere else in this country as an element of the crime. I mean, it's used for recidivist purposes and State courts have debated back and forth whether we're going to double somebody's sentence because of a foreign conviction, but it's never used anywhere else as an element of the crime. This -- this would be a first, and it's pretty significant. To me it's ironic that the Sentencing Commission said you can't use a foreign conviction simply to up somebody a few months in the guidelines. But the Government here argues that we can use it to satisfy an element of the crime --
03-750 +++$+++ 8058 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Recidivism is an element of the crime. If -- if you have a crime of, you know, repeated felony, recidivism is an element.
03-750 +++$+++ 8059 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that -- that's correct, Your Honor. Of course, the -- it's an exception under Apprendi that the -- the prior crime. But what -- what I'm saying is it's -- it's a slightly different situation in terms of it being -- I know we have Blakely and the whole sentencing factor issue. But it -- it's a slightly different use of a prior and making -- in other -- in all those cases, the -- it's a crime whether or not you have a felony. The felony might make it a more serious crime. In our case, this isn't a crime without this felony. That's the thing that makes it a crime. And what I'm saying is the only situation we have where something that's otherwise blameless conduct becomes a crime is the use of a felony. There's no other situation where a foreign felony is employed or has been employed in that situation. If there's no other questions, I'd like to, if it would please the Court, reserve the --
03-750 +++$+++ 8060 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm sorry. You've exhausted your time.
03-750 +++$+++ 8061 +++$+++ TRUE +++$+++ MR. BOAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I have. Well, thank you.
03-750 +++$+++ 8062 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Millett.
03-750 +++$+++ 8064 +++$+++ FALSE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: Justice Scalia, you asked about what case we would want to adopt and be our strongest case on the meaning of the word any in the statute, and my answer to that question, although I take the liberty of answering it, though you didn't ask me --
03-750 +++$+++ 8065 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You can ask it as well -- (Laughter.)
03-750 +++$+++ 8066 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- is the Gonzales case where this Court said that the word any in the gun control law, in this context, in this framework means, read naturally -- I'm quoting here. Read naturally, the word any has an expansive meaning, that is, one or some indiscriminately of whatever kind. This is not, Justice Ginsburg, a statute where Congress wrote sloppily. In fact, in Barrett and Huddleston, this Court specifically said and noted that excruciating care with which Congress wrote title IV, section --
03-750 +++$+++ 8067 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There is -- there's an overarching concern and I'll -- I'd like to put it to you right from the beginning. When a legislature legislates, be it the State or Federal Government, it is generally thinking in terms of its own domain, its own bailiwick. When Congress legislates, it's thinking about the United States. Sometimes it's thinking about abroad, but most of the time when it is, it says so. And we have a number of cases, not just the Arabian American Oil Company. I mean, that -- the language of title VII was between a State and anyplace outside thereof, anyplace outside thereof. And in that very case, the Chief made the point that I'm putting to you now, that Congress thinks about the United States, our country, and if it means to say something that will take in other places in the world, it says so clearly. And we don't make the assumption that Congress was intending to have any extraterritorial flip to its law unless it tells us that. That's my overall concern about the Government's position in this case.
03-750 +++$+++ 8068 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, this is not an extraterritorial application of a statute. This regulates a threat to American public safety within the United States by someone within the United States based on their conduct, possession of a firearm by a dangerous person within the United States. That is not extraterritorial application of the law.
03-750 +++$+++ 8069 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but --
03-750 +++$+++ 8070 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's no more --
03-750 +++$+++ 8071 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- but let me just interrupt on your -- your best case suggestion. I don't think the test is when has the word any been used in different ways, but has the word any court ever been used by Congress to include foreign courts.
03-750 +++$+++ 8072 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the phrase convicted in any court --
03-750 +++$+++ 8073 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. I'm asking about just the words, any court. What's your best case for the proposition that that would normally be construed by Congress to include foreign courts?
03-750 +++$+++ 8074 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't -- I don't have a case that specifically talks about --
03-750 +++$+++ 8075 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't have a case.
03-750 +++$+++ 8076 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that yet, but if I can -- if I can explain why the phrase convicted in any court -- because any court -- the -- the problem is you're not -- there's not a case for that. The word, any court, that -- those two words appear in a lot of places in the United States Code.
03-750 +++$+++ 8077 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And do they ever refer to foreign courts? That's the question.
03-750 +++$+++ 8078 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- not -- not that I'm aware of, but -- but they don't -- it -- it doesn't address it one way or the other. Most of the times, the vast majority of the times that you see any court in the United States, it -- in the United States Code, it's followed by qualifying terms. What's very important here is that the phrase convicted in any court without qualification. There's lots of any courts in the United States --
03-750 +++$+++ 8079 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the reason you often need qualification is there's -- there's sort of a basic question, does this include State courts as well as -- as well as Federal, and it's often necessary to spell it out one way or the other. But I don't -- I'm not aware of any precedent for trying to decide whether it also embraces foreign courts.
03-750 +++$+++ 8080 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, if I could make two points. Again, convicted in any court is rarely employed by Congress. Rarely. And we've cited in our brief on the occasions it has been employed, the context and structure are wholly consistent with including foreign judgments. The PATRIOT Act created a ban on the possession of biological agents or toxins, and it -- it picked up this same phrase and put it in there, and I think it is -- would -- and that is also a statute that in a separate provision has extraterritorial application.
03-750 +++$+++ 8081 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How many times have you used this statute to go after people who were convicted in a foreign court?
03-750 +++$+++ 8082 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it's -- I can't give you an exact number because we --
03-750 +++$+++ 8083 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ About, approximate.
03-750 +++$+++ 8084 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- we don't know about the ones that we never hear about.
03-750 +++$+++ 8085 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ More like 100, more like 50, more like 10, more like 5? About how many?
03-750 +++$+++ 8086 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's -- it's not that -- I would -- I would say there's probably 10 to a dozen, but I -- I have to --
03-750 +++$+++ 8087 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ 10 to a dozen over how long a period of time? 20 years, 18 years?
03-750 +++$+++ 8088 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Since 1968. It's been on the books since 1968.
03-750 +++$+++ 8089 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ '68. Now -- so 35-40 years. Now -- now, how many times do you think that people -- I mean, the -- the -- if you've used it only a dozen times or so in about 40 years, then it doesn't sound like a major threat. What I'm weighing against that is the possibility that people are really convicted abroad of selling Bibles. That really does happen, and there really were economic crimes in 1968 in all the Eastern European countries, and these aren't fanciful examples I've been giving you. And so if you were in Congress -- or -- or why do you think that Congress would have wanted to get the courts into the mess of trying to decide why wouldn't those crimes be covered and were the procedures fair? And we start distinguishing one country from another. And what are the procedures in the Ukraine or Kazakhstan anyway? I mean, my goodness, what a mess for the sake of a dozen cases in 40 years.
03-750 +++$+++ 8090 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer -- and Justice Stevens, I do want to get back because I do have a lower court case that interprets any court in the way you discussed. I want to get back to that. But Justice Breyer, I understand this being a very important concern, and -- and there are no doubt particular applications that could seem unappealing, just as in Lewis v. United States where this Court held that an invalid, a patently unconstitutional State conviction counts for section 922(g)(1). The reason that the -- the convictions are covered here is Congress was not --
03-750 +++$+++ 8091 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which was it? Just -- what was the case you just mentioned?
03-750 +++$+++ 8092 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Lewis v. United States, and that is -- that's really our favorite case, although we like the word of -- definition Gonzales has for any. But in Lewis v. United States, this Court addressed the question whether the ban on possession of firearms by someone convicted of, I'll say, a felony, a term of imprisonment of more than 1 year, applies to -- to convictions that are allegedly unconstitutional under State law or may, in fact, be unconstitutionally entered. They could have been the product of a coerced confession. The allegation there was lack of representation of counsel.
03-750 +++$+++ 8093 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that -- that example, which you gave in your brief, gave me this concern. The problem that you've just been describing, the State convictions that may be invalid but is being used under 922, I regard that as a kind of a venue question because you can go back to the State that rendered the conviction and say, State, I was convicted in violation of the Constitution, give me my good habeas writ that I get -- can get from the State. Then I wipe out that conviction and I don't have it anymore. But the person who's been convicted, say, in whatever examples -- take -- Zimbabwe would be another example. Libya. To go back to that system and get a conviction expunged. That's why you can't use a case within the U.S. system where it's a question of where do you go to wipe out your prior conviction. And for someone abroad, there isn't that option.
03-750 +++$+++ 8094 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, in Daniels v. United States, which dealt with 924, the sentencing enhancement provision, but it has a -- the parallel and incorporates 922(g)(1) convictions, this Court held -- a plurality of this Court held in divided opinions that -- in fact, that the -- the bar -- or that you still count an unconstitutional or allegedly unconstitutional State conviction, even if it was never appealed and that -- and there is no more opportunity for appeal. The time has passed. And under 922(g)(1), we also count.
03-750 +++$+++ 8095 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's -- that's a question of waiver or forfeiture. Those are the ordinary rules that apply.
03-750 +++$+++ 8096 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but that --
03-750 +++$+++ 8097 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but there's a basic rule in civil as well as criminal procedure, that if you want to attack a judgment, you go where that judgment was rendered. And of course, you should abide by the timing rules of that, but that's just a very sensible thing within a federal union. If you're -- if you're attacking what State A does, go to State A, don't tell State C.
03-750 +++$+++ 8098 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
03-750 +++$+++ 8099 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that -- that doesn't operate internationally.
03-750 +++$+++ 8100 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it does certainly in this case. He could have appealed his conviction in Japan and he did not. So he had a forum to do that in. But --
03-750 +++$+++ 8101 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but you're not building that into your interpretation of the statute at all because you have said in your brief -- and correct me if I've got you wrong -- you don't like what the Third Circuit did. You say just the fact of the conviction counts. Don't investigate, court, whether it was a fair system that comports with fundamental notions of due process. Just see if there's a conviction anyplace in the world. And so what -- what you're telling me is that it doesn't matter that you didn't appeal because even if he were precluded from appealing for some reason that we would consider totally unfair, it doesn't matter on your view of this statute.
03-750 +++$+++ 8102 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that's right, Justice Ginsburg, and that is -- you know, the -- the statute also bars receipt of firearms by anyone who's under indictment. And that application applies even though you can't appeal, except for exceptional circumstances. You can't appeal an indictment. And the 922(g)(1) bar, this Court's decision in Lewis made clear, is that it still applies unless and until your conviction is overturned. So you don't have to have had a -- a conviction vetted through the appellate process before the bar attaches. In -- in the immigration context --
03-750 +++$+++ 8103 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's -- that's standard for judgments anyway. When the judgment is final, it means you've gotten through the first -- it has preclusive effect. Almost always, when a judgment is overturned on appeal, then you go back to State 2 and say, look, it's been overturned on appeal, and at least in the civil side, almost always State 2 will say, okay, we'll give you post-judgment relief because what we were relying on as our sister State judgment is no longer on the books. I can't imagine that in our criminal system it doesn't work the same way.
03-750 +++$+++ 8104 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, certainly in immigration and extradition, you don't get to appeal the validity of your foreign conviction or the -- the processes that led to it. So this is not an alien concept. And it's very important to understand what Congress was doing here. This isn't --
03-750 +++$+++ 8105 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm asking if it's alien in our criminal justice system, not in deportation, not in -- extradition is somebody who did somebody -- something abroad, and we don't send people just to anyplace. Don't we have to have a treaty?
03-750 +++$+++ 8106 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. We have treaties with more than 100 countries and we don't -- and -- and the courts do not examine the fairness of the proceedings or --
03-750 +++$+++ 8107 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because the person is going to be tried in that other system, and we have bound -- within our international system, we say we're part of a world community and we want Japan to extradite people who have done bad things here to the United States, and so similarly, we will extradite to Japan. We don't want them to look at our system and judge it. We're sending somebody to be tried there. So extradition is -- is something entirely different than --
03-750 +++$+++ 8108 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Although we -- we do also extradite, just to serve sentences, where there may have already been a trial that could be as flawed as anyone could conceive or articulate. So --
03-750 +++$+++ 8109 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, we have the check already that these are -- these are places with whom we want to do criminal justice business together. So --
03-750 +++$+++ 8110 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, what we have is the check that the political branches have decided that it's important to attach significance to foreign court --
03-750 +++$+++ 8111 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And then we have the -- we have the document where it's very clear we want to have extradition with the UK, with Japan. Here, you're relying on the word court, and you don't have it all spelled out like you do in an extradition treaty. And that's the problem here. Sure, if Congress had said we mean foreign court, then that would be it, but it hasn't said that and we have to determine does it mean the same thing as it means in the extradition context or the deportation context where you have a clear statement that Congress means a tribunal abroad.
03-750 +++$+++ 8112 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In fact, in 8 U.S.C. 1182(a) which -- which -- admissibility criterion for aliens, convictions of moral turpitude, there's no reference to whether it's a conviction by a foreign court or a domestic court.
03-750 +++$+++ 8113 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if somebody is coming into the country, somebody is asking to come in, any conviction that you're talking about, of course, refers to someplace abroad.
03-750 +++$+++ 8114 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. No, it doesn't, Justice Ginsburg, because frequently and throughout that same statute, it refers to convictions in the United States. A lot of times the reason for inadmissibility, including the Mariel Cubans cases this Court heard last month, is -- is convictions committed in the United States.
03-750 +++$+++ 8115 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May -- may I interrupt this --
03-750 +++$+++ 8116 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Now, surely the context --
03-750 +++$+++ 8117 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- this colloquy to raise another question, if I may? Would you concede that there are some tribunals in the world that are comparable to what you might call a kangaroo court that Congress would not have intended to include within the term court?
03-750 +++$+++ 8118 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Stevens. And I think that's an important thing here. There has been no contest, for obvious reasons -- we're dealing with Japan -- as to what Congress meant by court. And sometimes if it's Saddam Hussein's --
03-750 +++$+++ 8119 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And how are we to decide whether such tribunal should be treated as a court within the meaning of the statute when there is no statutory definition of the term court?
03-750 +++$+++ 8120 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Through traditional rules of statutory construction. I think that would involve looking at the other -- the -- the background that Congress would have enacted the statute against, first of all, and that -- that may well have -- it may not have been courts of just the United States because, as we know, Congress twice deleted that limitation from the statute.
03-750 +++$+++ 8121 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if you concede that there are some tribunals that are not courts within the meaning of the statute, are you not conceding that the word court is inherently ambiguous?
03-750 +++$+++ 8122 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I am -- I am conceding that -- that it has to be given meaning. I don't know that I would call it ambiguous, if we have to figure out. But I -- what I will say is that the phrase --
03-750 +++$+++ 8123 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's something less than the all-inclusive term, any court, in a literal sense.
03-750 +++$+++ 8124 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Any -- it has to be -- it has to be a court capable of entering convictions. I don't -- I don't think it's ambiguous in a sense --
03-750 +++$+++ 8125 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I mean, it doesn't -- it's -- it's not a tennis court or an inner court. (Laughter.)
03-750 +++$+++ 8126 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-750 +++$+++ 8127 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If -- if somebody asked where this man was convicted, they'd say in a Japanese court.
03-750 +++$+++ 8128 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. And -- and I think, in addition, we don't decide that a word is ambiguous just at looking at that word. We would look at the overall structure of the statute, and we would decide that it has to be a governmental entity capable of entering convictions.
03-750 +++$+++ 8129 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You didn't really have a chance --
03-750 +++$+++ 8130 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I assume that there's some prosecutorial discretion in the application of this statute. I mean, have you --
03-750 +++$+++ 8131 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Justice --
03-750 +++$+++ 8132 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- have you prosecuted any -- any woman who tried to buy a firearm because she had been convicted of wearing -- not -- not wearing a veil?
03-750 +++$+++ 8133 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Scalia.
03-750 +++$+++ 8134 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you think any United States attorney would do that?
03-750 +++$+++ 8135 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would hope not, Justice Scalia. I think --
03-750 +++$+++ 8136 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Or -- or somebody who was convicted of treason in Cuba? You -- you think that -- that that would be a -- a case that would be prosecuted vigorously by a United States attorney?
03-750 +++$+++ 8137 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I wouldn't think so. I think --
03-750 +++$+++ 8138 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you know any cases in which we've construed a statute narrowly on the ground that we're confident the prosecutor won't bring any such cases?
03-750 +++$+++ 8139 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- well, again, just last -- this isn't -- this isn't quite the same context. But just this -- just last term in the Cheney case, this Court recognized the limitations on prosecutors. And in Atwater v. City of Lago Vista, in determining the scope of the Fourth Amendment and the capacity to arrest for misdemeanors, this Court recognized that not all checks have to come from the courts. They can come from the political process here. And it's very important to keep in mind that these hypothesized problems, bad applications, are that. Purely hypothesized. This has been on the books for almost 40 years.
03-750 +++$+++ 8140 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's -- it's been on the books for so long with very, very few prosecutions. So it's one -- it's not exactly an urgent question. But it does seem to me if this -- this problem had been brought to the attention of Congress, they would have defined the term court, and I don't -- they haven't done that but probably because they didn't think of the problem. And you can argue, well, they surely would have wanted to have this particular person prosecuted, but would they have wanted everyone with every foreign court all over the world. That's the question.
03-750 +++$+++ 8141 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And in Beecham v. United States, in Justice O'Connor's opinion for the Court, this Court recognized there -- it was dealing with another issue, whether the jurisdiction that restores civil rights is different from the convicting jurisdiction. It said we don't have any way of knowing whether Congress thought about that. That's not the question. Congress passed a statute here. It passed a statute that's been written very carefully. It's passed a statute where the definition of the word any in the statute has already been defined. And the -- what the statute has been used for is to prosecute exactly the people that Congress wanted to capture. It's international gun smugglers --
03-750 +++$+++ 8142 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. --
03-750 +++$+++ 8143 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- violent assailants --
03-750 +++$+++ 8144 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, Ms. -- Ms. Millett, my -- my problem with that argument and I guess my basic problem with -- with the case is Congress did not just sort of stop when it got to the point that would support your Lewis argument. It went a step -- it went several steps further. But one of the steps further that it went to was -- was in -- in a certain fussiness about the definition of crime, and it said, well, we want to make sure that -- that no State or -- or Federal business criminals are -- are put at a disadvantage by this. It then accepted anything that a State might call a misdemeanor if it carried no more than 2 years. And it just seems very odd to me that Congress would have been that careful in putting these limitations on State and Federal crimes and would totally have ignored any category of crime under foreign law, any conviction under foreign law in -- in light of some of the hypotheses that have been thrown out this morning. It just seems strange that it would have ignored foreign law and foreign courts if it thought they were included.
03-750 +++$+++ 8145 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think it's strange at all, Justice Souter, and that is because that the business exception, if I can call it that, is a carve-out. What you have here, in this Court's word, is a sweeping prophylaxis against the misuse of firearms. That's what this Court called it in Lewis, a sweeping prophylaxis. And what Congress did was back out --
03-750 +++$+++ 8146 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it called it that, but it didn't -- it didn't have this issue in front of it.
03-750 +++$+++ 8147 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- that's right.
03-750 +++$+++ 8148 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I realize you've got the language, but it -- it wasn't addressing this issue.
03-750 +++$+++ 8149 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, and -- and the language should be what counts most. But beyond that, you're talking about Congress --
03-750 +++$+++ 8150 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I was talking about our language.
03-750 +++$+++ 8151 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. You --
03-750 +++$+++ 8152 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- and I think that ought to count for a lot too. (Laughter.)
03-750 +++$+++ 8153 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, not too much.
03-750 +++$+++ 8154 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But what Congress was doing there was backing out. It was making an exception, and it was doing this against a backdrop of a lot of violence with guns. And so it makes sense that Congress would proceed carefully and deal with matters with which it was familiar and not want to carve out things that it wasn't familiar with.
03-750 +++$+++ 8155 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but how -- how familiar an example is it that price-fixers would -- would be placed in -- in a terrible position if they couldn't carry guns? I mean, that was not a pressing problem, so far as I know. And yet, Congress dealt with it.
03-750 +++$+++ 8156 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the problem --
03-750 +++$+++ 8157 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if it can deal with a problem that is as little pressing as that, it seems odd that it would not have averted in any way to equally non-pressing problems under -- under foreign convictions if that's what they had in mind.
03-750 +++$+++ 8158 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It dealt with that. I mean, specifically at the legislative history level, it dealt -- it enacted that statutory exception because some States had made these types of business crimes punishable by more than a year. So that's what it was responding to.
03-750 +++$+++ 8159 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. What -- what --
03-750 +++$+++ 8160 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I can't -- I --
03-750 +++$+++ 8161 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. I -- finish your answer.
03-750 +++$+++ 8162 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I can't -- I'm not going to stand here and tell you that Congress specifically thought about this.
03-750 +++$+++ 8163 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, there's no --
03-750 +++$+++ 8164 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, but --
03-750 +++$+++ 8165 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We both know there's no --
03-750 +++$+++ 8166 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but what Congress did here -- and it's very important to understand -- it was throwing a broad net --
03-750 +++$+++ 8167 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Millett.
03-750 +++$+++ 8168 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right.
03-750 +++$+++ 8169 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Millett, there are many lawyers in Congress and at least the law students of my generation -- some of them are of that elder age. We learned in law school one country doesn't enforce the penal judgments of another. This is a kind of enforcement of a penal judgment of another, not exactly, but something like it. Another reason why I would expect a Congress, knowing that background norm, would say, when it meant foreign, foreign. Unlike the context of the immigration, yes, there are some people who left and came back, but many -- and -- and we have all this whole line of cases. Is adultery a crime of moral turpitude, and you know, those go back to the '20's. But this, which came about only because of the merger of two statutes, one saying Federal and State, the other not, and no explanation at all, in light of all these anomalies that have been brought out. Shouldn't we say to Congress maybe that's what you meant, but if you did, you have an opportunity to say so before we read in foreign?
03-750 +++$+++ 8170 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Two answers, Justice Ginsburg. First, this was the second time in 1986 that Congress refused to include that limitation on courts. The prior law, before the 1968 act, specifically referred to courts of the United States, States, and territories. It did not pick up that language in title IV in 1968, and they took it out --
03-750 +++$+++ 8171 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But neither did it give any explanation for not carrying it forward.
03-750 +++$+++ 8172 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but I don't -- that --
03-750 +++$+++ 8173 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's -- it's the silence at the -- at the time it -- it apparently departed from the practice of predecessor statutes that -- that seems to be a problem for your argument.
03-750 +++$+++ 8174 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but again, I don't think this Court has ever characterized as silence Congress' twice deletion of language from a statute in 1968 and again in 1986. It had it. It looked at it. It took it out. And in 1986 in the Senate report that you were referring to, Justice Ginsburg, earlier, Congress said they -- the conference report said we are rejecting the Senate's definition of felony. The other thing to keep in mind is when Congress enacted this statute in 1968, it also enacted an administrative mechanism for relief that would deal with exactly the uncomfortable situations that have been identified. 925(c) allows an administrative waiver in cases where an individual comes and says I don't want to --
03-750 +++$+++ 8175 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You know, this is a very interesting case because there are three ways to answer the question of what is a court. You can leave it up to us to do it, and that would be judicial legislation to fill in a hole in the statute. You can have the executive do it, decide what case -- what cases to prosecute, or if we should knock out this -- interpret the statute in the -- in a different way than you urge, Congress would then do it. Now, which of the three is the better lawmaker on deciding which is the -- what should the meaning of the word court be? The executive, the legislature, or the judiciary?
03-750 +++$+++ 8176 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think -- it's, of course, the legislature and the President's signature. I'd like to put a plug in for the executive in -- in that reference, but --
03-750 +++$+++ 8177 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That would save us a lot of work. We -- (Laughter.)
03-750 +++$+++ 8178 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- we could just invalidate all statutes that we don't understand. (Laughter.)
03-750 +++$+++ 8179 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Justice Kennedy and Justice Stevens, the important thing to keep in mind here is we don't just have a statute that appeared out of nowhere. It's been on the books for a long time and there was a legislative --
03-750 +++$+++ 8180 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but it is pretty clear that Congress didn't really think about this problem.
03-750 +++$+++ 8181 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but it thought -- it --
03-750 +++$+++ 8182 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it is also clear on your side that they would like to prevent this guy from having a gun.
03-750 +++$+++ 8183 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly, and --
03-750 +++$+++ 8184 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So there are two competing considerations, both of which are very powerful.
03-750 +++$+++ 8185 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if nothing else -- and this guy is squarely within what Congress wanted to capture. If nothing else, you don't have to decide anything more in this case than that it covers persons like this whose convictions are fundamentally fair and it's not contested and could leave for another day -- but let's --
03-750 +++$+++ 8186 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can I -- I want to get you. Now, I have a new question.
03-750 +++$+++ 8187 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would -- would you finish -- would you finish please --
03-750 +++$+++ 8188 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I have a new --
03-750 +++$+++ 8189 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- telling us about the administrative waiver proceeding? You were in the middle of it and I never heard the --
03-750 +++$+++ 8190 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's exactly what I wanted to know.
03-750 +++$+++ 8191 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-750 +++$+++ 8192 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I -- can I -- that's exactly what I wanted to know. When a person comes in to get a gun -- because I hadn't focused on this, and it actually to me it's relevant. Suppose one of these people has been convicted in a foreign court and he doesn't have a clue, you know, that this means he can't buy a gun over here. So he comes over here. He goes into a -- a gun store. Now, does he get notice that that -- this conviction over in Japan or Lithuania or wherever it was means that he can't buy the gun?
03-750 +++$+++ 8193 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, he got -- in this case, he got -- and this is --
03-750 +++$+++ 8194 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. I'm asking -- I'm asking in general.
03-750 +++$+++ 8195 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You -- you go and you fill out a form that says, as this case did -- and it's on page 4 of our brief --
03-750 +++$+++ 8196 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
03-750 +++$+++ 8197 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- asked him, have you been convicted in any court of --
03-750 +++$+++ 8198 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it just says any court.
03-750 +++$+++ 8199 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In any court. And I think when someone --
03-750 +++$+++ 8200 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
03-750 +++$+++ 8201 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. But when someone has a conviction, when you have a felony conviction, you're on some notice of inquiry.
03-750 +++$+++ 8202 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It'll work for -- yes. It'll -- it'll work for this one, but -- but what I'm worried about -- and really what led the Sentencing Commission to exclude all this stuff even though clearly recidivists should get a higher sentence, but we still excluded it because it's just a nightmare. There are notice problems. There are fairness problems. There are procedural problems. There are problems of crimes that aren't crimes here.
03-750 +++$+++ 8203 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice --
03-750 +++$+++ 8204 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and all those come up, and that's what I'm worried about. So I see this as a possible out.
03-750 +++$+++ 8205 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-750 +++$+++ 8206 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The one -- the procedure you just talked about might help.
03-750 +++$+++ 8207 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And it's in 925(c), which is on --
03-750 +++$+++ 8208 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That he knows about it.
03-750 +++$+++ 8209 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- page 65a of our brief. But let me -- let me be --
03-750 +++$+++ 8210 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And it provides judicial review of the Attorney General's failure to give the waiver.
03-750 +++$+++ 8211 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does, and -- but let me be candid up front. Congress stopped funding this administrative mechanism in 1992, and that -- this Court addressed that in the Bean case. It -- it doesn't exist now, but that was 25 years after Congress wrote this language and put it in the statute, and the fact that they stopped funding it 25 years later doesn't mean the statute doesn't mean what it said.
03-750 +++$+++ 8212 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you know why?
03-750 +++$+++ 8213 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And Congress --
03-750 +++$+++ 8214 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you know why they stopped funding it? Why did -- because I think that's been reenacted every year. No money for this. Why -- why did Congress stop funding it?
03-750 +++$+++ 8215 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because some of -- some of the people who were getting waivers were going out and committing crimes again. Congress here is very concerned about public safety. And this is not -- there was, you know, the question, is there ever an element where you treat this like an element of foreign crime. There aren't -- there aren't crimes normally where you treat indictments or someone being under a restraining order this way. This is not punishing you for your foreign crime. This is a global categorical, class-wide judgment that as a class persons who have committed crimes overseas are more dangerous and may pose exactly the public safety risk we wanted to grab and stop. As a class, they do that. In a particular case, it may not. In a particular case, an indictment might not. Congress was speaking globally. It did so. It threw a broad net. It did so at the time it had an administrative check to deal with these problems. Yes, that's gone. That doesn't retroactively change what the statutory language meant. This Court has said time and time again that this statutory language in 922 was written, in Beecham and Huddleston, with such care that Congress was focused on the difference between the present perfect and the past tense, this Court said in Barrett. This is not sloppy writing. When Congress put any court in and did not carry forward a limitation to the courts of the United States and took that out in another part of the statute in 1986, we have to assume that Congress knew what it was doing. If there are problems here, there is a political process to deal with it. The political process has taken away the administrative waiver. But there has not been -- this hypothesis of bad applications has not arisen. It's hypothesized. And what this statute has -- has been used to do is capture exactly the people Congress wanted to capture. It got exactly the ones who should be disarmed.
03-750 +++$+++ 8216 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you know anybody in the Justice Department you might talk to to amend this form so that the form says this includes convictions in foreign countries?
03-750 +++$+++ 8217 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I am confident that the ATF would be happy to do that. As of now, the ATF has a regulation on the books for someone to look at and see that includes foreign convictions in this definition. And I think when someone has been convicted, they're on notice. Thank you, Justice Stevens.
03-750 +++$+++ 8218 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you. The case is submitted.
03-814 +++$+++ 8222 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ Mr. Kaplan, you may proceed.
03-814 +++$+++ 8224 +++$+++ FALSE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: I received word that the Court is interested in 46 U.S.C. 801, and I intend to focus my attention on that before I get into my argument. 46-801 is referred to as the Shipping Act, and it was enacted in 1916 and the amendment in 1918. At that time, the United States Government was involved in a war and we were interested in developing the merchant marine for purposes of transporting cargo, equipment, and people back and forth. And so the amendment that was filed was fashioned after exactly 1 U.S.C. 3, but it had some additional features involved, one of which was that a vessel that was under construction was included as part of the act, one of which was if the owner intended to use the vessel for transportation, it was included. It is under no circumstances affecting a Jones Act claim because the Jones Act requires, number one, a vessel in navigation and it can't be on the dock or being under construction, and if it was under construction, it wouldn't have a crew. So under the circumstances, with all due respect, it is our judgment that we -- we would win on both sides. The Super Scoop would indeed, qualify under that act as well as under 1 U.S.C. 3. But we think that this goes a little too far and not appropriate.
03-814 +++$+++ 8225 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is the Super Scoop practically capable of transportation on water, counsel?
03-814 +++$+++ 8226 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is more than practically capable, it actually is -- actually transports its equipment and its personnel at work and its --
03-814 +++$+++ 8227 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Didn't it come from the west -- did it come from the west coast originally?
03-814 +++$+++ 8228 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Indeed, it did. It came through the west coast, unmanned, however. It came from the west coast through the Panama, through the Gulf, up the east coast, and, sir, if anything had occurred on that trip, that -- that would have been considered a vessel. However, when it came in to Boston --
03-814 +++$+++ 8229 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there was nobody on it in that trip.
03-814 +++$+++ 8230 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sorry.
03-814 +++$+++ 8231 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There was nobody -- there was no one on it --
03-814 +++$+++ 8232 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In fact, it's unmanned.
03-814 +++$+++ 8233 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- to be injured.
03-814 +++$+++ 8234 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There was nobody injured and unmanned, yes, indeed. But what -- what I'm saying is historically there has never been a decision in which a dredge was not considered a vessel until this case that we appear here now. Of course, I'm here to seek to have you overrule the decision that was rendered. But more importantly, we are having a morass in the lower courts, and I'm here to try and persuade this Court to establish, once and for all, that there is a standard, that there is a definition for the use of the word vessel under the Jones Act. Now, in 1920, when the Jones Act was enacted, there was no reference to the use of the word vessel, and we know that when that happens, we have to seek to find what was the meaning, what was the established meaning at that time. And the way we do that is to look first to statutory law, and in addition we look to case law. The statutory law is clear. In 1873 in the revised statutes it makes it very clear that section 3 describes a vessel is any watercraft that -- or other artificial contrivance used, or capable of being used, for transportation on water. With that standard in 1873, this Court in 1907 tried the case of Ellis v. the United States and did apply that revised statute and decided that the dredges that were working in the city of -- in the Boston Harbor were indeed vessels and that the --
03-814 +++$+++ 8235 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, now, that -- that definition, used or capable of being used -- right, now. After one of the hurricanes, I saw a -- a tugboat that had just been washed up on shore down in the Gulf. What if somebody -- some enterprising person had fitted that out like a -- like a diner, you know, a -- a restaurant and they have staff in the diner and they're serving the meals off of this boat? Now, the boat, apart from the fact that it's a couple of hundred yards inland, is capable of being -- still capable of being used. Are the employees of that diner covered by the Jones Act?
03-814 +++$+++ 8236 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Very interesting question, Justice Scalia. However, this Court --
03-814 +++$+++ 8237 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It -- it goes to whether we want to use, you know, section 3 as -- as our definition.
03-814 +++$+++ 8238 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court seemed to have focused right on point in the cases of Cope in -- Cope was early, 1903, and in the case of Evansville in 1926 when they added the two words, practically capable. The Cope case was a dry-dock and it was run into by somebody and they sought damages. And the Court -- this Court said, wait a minute. In that case, that's a dry-dock. It goes up and down. It doesn't navigate. It doesn't transport people or cargo over water. So they said it's not practically capable of fulfilling under the revised statute. The easiest case is 1926 when this Court again in Evansville made it very clear that a wharf boat, which on occasion was taken out. Once a year, I think the evidence is, they would take it out and move it back. But it was affixed to the land. It had its telephone. It had its sewage. It had all connections to the land. And this Court again used 1 U.S.C. 3, but did say that it wasn't practically capable of performing.
03-814 +++$+++ 8239 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that what we would say about all these gambling casino boats that are parked on the side of the Mississippi River?
03-814 +++$+++ 8240 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, these are a problematic case, and the whole thing is determined on whether or not it's in navigation. If a vessel is --
03-814 +++$+++ 8241 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's your answer? There are lots of these gambling boats that are parked --
03-814 +++$+++ 8242 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the --
03-814 +++$+++ 8243 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- along the side of the river.
03-814 +++$+++ 8244 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the gambling boat has lost its ability to be in navigation, if it's affixed to the land, if it has connections to the land, if it doesn't expect to go into navigation, it is out of navigation. It's owner has taken that vessel from a navigable vessel into out of navigation.
03-814 +++$+++ 8245 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And then what is the standard you use, the definition to use to get to that result? Is this your practically point again?
03-814 +++$+++ 8246 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Say that again, please.
03-814 +++$+++ 8247 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You've given us the answer. What's the standard that you use to get to that answer? Do you go back to the definition that it -- it cannot practicably be used?
03-814 +++$+++ 8248 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the standard that I'm seeking to have the Court employ is 1 U.S.C., section 3, which says, any -- a vessel is any watercraft or other artificial contrivance used, or capable of being used --
03-814 +++$+++ 8249 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And then -- and then the riverboat -- it depends on how -- how permanently it's affixed to the land. Suppose it stays there for 10 years. It -- it can go anytime, but it stays there for 10 years.
03-814 +++$+++ 8250 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If in fact it stays there for 10 years and it does not move, that's evidence that the owner intended that vessel to lose its position in navigation.
03-814 +++$+++ 8251 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So there's an intent component to your test now?
03-814 +++$+++ 8252 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There -- there -- technically one could say break the bonds that hold it to the dock and then take it out and use it because once a vessel, always a vessel? The answer is no. According to this Court, this Court said --
03-814 +++$+++ 8253 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Kaplan?
03-814 +++$+++ 8254 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- when it's not practically capable of doing it.
03-814 +++$+++ 8255 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Kaplan, you said two things and I -- I'm wondering whether these are separate or they're really one concept. I thought your answer was going to be to the boat that is used as a diner or to the casino that's tied up to the land, that it's not in navigation. It may satisfy the 1 U.S.C. definition of vessel, but it has to be in navigation to be covered by the Jones Act. So I thought that's what you would -- something that's taken out of navigation would not qualify.
03-814 +++$+++ 8256 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The answer is no. It -- it does not qualify if it's removed from navigation. Once the vessel is taken out of navigation, as in Justice Scalia's situation where that vessel is on the land, it is being used as a completely different --
03-814 +++$+++ 8257 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you say it is a vessel. I thought your answer before was that it was not a vessel because it's not practically capable of being used.
03-814 +++$+++ 8258 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I say it's not a vessel. It's out of navigation.
03-814 +++$+++ 8259 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I like Justice Ginsburg's answer better. (Laughter.)
03-814 +++$+++ 8260 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It is a vessel but it's not in navigation. Then you could stick with the -- with the section 3 definition. It's capable of being used, so it's a vessel, but --
03-814 +++$+++ 8261 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But then the question is whether or not it's in navigation at the time of the accident.
03-814 +++$+++ 8262 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that only applies --
03-814 +++$+++ 8263 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and that is a rule that, I take it, you do not wish us to adopt, or maybe you do.
03-814 +++$+++ 8264 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm trying to establish that if it's in navigation, then it is a vessel. If the owner of that vessel removed it from any chance of navigation, made it a different kind of a vessel, it is no longer in navigation. It remains a vessel, but it's not a vessel in navigation.
03-814 +++$+++ 8265 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but doesn't -- doesn't that put you right back in the problem, the original problem, with -- with the riverboat? If all it is is tied up, it isn't permanently taken out of navigation. It isn't precluded. All they've got to do is cast the lines off and it's out in the water so that the riverboat is the vessel and presumably we've got seamen working on it.
03-814 +++$+++ 8266 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, if on that situation where all they have to do is cast the lines off and go out to sea, then of course it remains a vessel, and it remains in navigation. And it is -- it fits all the elements of the requirements. But if that --
03-814 +++$+++ 8267 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you're saying -- and I -- I don't mean to disagree with you. You're saying, yes, there are going to be a few tough results under this definition.
03-814 +++$+++ 8268 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There may be, but there's got to be some practically capable influence that this Court has already focused on to say whether that particular vessel is practically capable of being in navigation. If it's out of navigation, it's never going to be back in navigation, and there's nothing more that's going to happen to that as a vessel, then of course it's no longer a vessel that would qualify.
03-814 +++$+++ 8269 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so what is -- I see the First Circuit as trying to grapple with the very question you're raising, which is I think difficult.
03-814 +++$+++ 8270 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-814 +++$+++ 8271 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course, it seems to me fine, let section 3 apply. No problem so far with me. But that is so broadly stated that if you read it literally, my garage door is a boat or a vessel because, after all, it's capable of being used in navigation, if worst came to worst. And now you're trying to narrow it to get out of that absurd result. Well, so did the First Circuit. That's what they were trying to do, and you got caught up in it. But that's -- so -- so what -- that's why I think we're struggling with the words, and -- and perhaps practically -- if you mean by practically that it is not practically capable of navigation, even though it really is, if it just hasn't been used for navigation for a long, long time and has connections to the land like Jimmy's Harborside probably or -- or --
03-814 +++$+++ 8272 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Like the establishments from the --
03-814 +++$+++ 8273 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What?
03-814 +++$+++ 8274 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- pier 4, yes.
03-814 +++$+++ 8275 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, yes, or one like that. But is -- are those the words? Do we need some other words as well? We say practically capable but practically capable has a technical meaning here that it means if there's a close to permanent connection to the land, it doesn't apply?
03-814 +++$+++ 8276 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, we're talking primarily of Jones Act.
03-814 +++$+++ 8277 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
03-814 +++$+++ 8278 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Jones Act requires a relationship between the worker and the vessel. So --
03-814 +++$+++ 8279 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So could we say -- could we say that, as well, it must be unlike my garage door? A, it must be a -- a structure that normally would have a crew or that -- a significant amount of the time. We would have a connection to the water. It would be capable of having a master or crew. What about that?
03-814 +++$+++ 8280 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court has already established --
03-814 +++$+++ 8281 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- what the standards are for Jones Act, whether a person qualifies. There are filters between whether a person is a Jones Act seaman or not. For example, there has to be a vessel. There has to be a vessel in navigation. There has to be a economic relationship between the worker and his vessel and he has to contribute towards the mission or to the function of that vessel. He has to, more importantly, have a substantial relationship to his vessel, both with respect to duration and with respect to nature.
03-814 +++$+++ 8282 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ When you say the function of the vessel, do you mean the function of the vessel in its transportation function?
03-814 +++$+++ 8283 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-814 +++$+++ 8284 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that would be the answer to the riverboat problem. You'd say sure, if the -- if the riverboat is capable simply of being let go in the water by casting off lines, the riverboat is a vessel. But you don't have to worry about turning all the -- the croupiers and the waiters into seamen because they're not contributing to the transportation function of the vessel.
03-814 +++$+++ 8285 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Precisely.
03-814 +++$+++ 8286 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, is that the way out of the problem?
03-814 +++$+++ 8287 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Precisely? So then the --
03-814 +++$+++ 8288 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is a safeguard between the vessel and whether a person qualifies as a Jones Act seaman on that vessel.
03-814 +++$+++ 8289 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you -- you think that the person who operates the dredge, since he's not navigating the vessel, is not covered by the Jones Act?
03-814 +++$+++ 8290 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, I do not. I do not, indeed. I say --
03-814 +++$+++ 8291 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You do not what? Do not think he's covered by the Jones Act?
03-814 +++$+++ 8292 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I say he's covered by the --
03-814 +++$+++ 8293 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He is covered. Well, then why isn't the croupier covered?
03-814 +++$+++ 8294 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Why isn't what?
03-814 +++$+++ 8295 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why isn't the croupier covered, you know?
03-814 +++$+++ 8296 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Is the croupier contributing to the function of the vessel?
03-814 +++$+++ 8297 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That vessel's function is gambling. He sure is.
03-814 +++$+++ 8298 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is.
03-814 +++$+++ 8299 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does -- look, does the -- does the person in charge of the dredge control this process of pulling against anchor lines that moves it 8 feet or whatever it is?
03-814 +++$+++ 8300 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The manner in which the dredge -- this dredge worked -- by the way --
03-814 +++$+++ 8301 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but if you can give me a yes or no answer, give me a yes or no answer.
03-814 +++$+++ 8302 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-814 +++$+++ 8303 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
03-814 +++$+++ 8304 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That man controls not only --
03-814 +++$+++ 8305 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that's why he's different from the croupier then, isn't he?
03-814 +++$+++ 8306 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The croupier does not control the motion.
03-814 +++$+++ 8307 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right, and the -- the guy in charge of the dredge does control the movement of it.
03-814 +++$+++ 8308 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
03-814 +++$+++ 8309 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What if you have a very complicated dredge and it takes two people? One of them does nothing but -- but operate the steam shovel that pulls up the goop and puts it in the -- in the barges. Okay? And the other one moves the dredge. You say the one is -- is covered by the Jones Act and the other one isn't? No, it can't be. If the function of the vessel is dredging, anybody who is performing that function of dredging is covered by the Jones Act. Don't you believe that?
03-814 +++$+++ 8310 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do believe that.
03-814 +++$+++ 8311 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course, you do. So the croupier is -- (Laughter.)
03-814 +++$+++ 8312 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then what do you -- then what do you do with the croupier? You can't have it both ways.
03-814 +++$+++ 8313 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if the croupier is participating in the navigation of the vessel, we don't care anymore.
03-814 +++$+++ 8314 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He's not participating in the navigation of the vessel.
03-814 +++$+++ 8315 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
03-814 +++$+++ 8316 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He's doing whatever croupiers do. I don't know. (Laughter.)
03-814 +++$+++ 8317 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but --
03-814 +++$+++ 8318 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They don't hand me any money, I'll tell you. What I'm trying to establish here is that there really is a distinction between the law applicable to whether or not there is a vessel, and I'm suggesting that 1 U.S.C. clearly describes what a vessel is and should be for Jones Act purposes. The second part of the issue is whether or not the individual qualifies and is warranted to have the Jones Act coverage. So as to the vessel -- as to this coverage, we know, through Wilander and through Chandris, this Court has established some very sensible and good standards by which a person can or cannot be a -- a Jones Act seaman. Now the only thing that's necessary is we have to round the circle up to determine what is a vessel for Jones Act purposes. 1 U.S.C. seems to satisfy it. It's important to note that in this particular case this is a Coast Guard-certified, inspected vessel. This vessel is -- carries -- it has a 1290 ton itself and it carries cargo of 466 ton. It is -- it has navigation lights. It has to be ballasted. It has to be load-lined. When it goes to work, the way in which it moves is as follows. The tugs take the anchors out 50 feet. Now, as the operator is using that bucket to dump into the scows, he's also handling the -- the vessel is also moving through its own deck winches. They spool up on their own winches. So in addition to where he's digging, they're also moving so that instead of just digging a hole, they're digging the trench. So under all the circumstances, this Super Scoop, because it has a crew, a captain and a crew of 10, because they have to wear lifesaving devices, because they have a -- a standby vessel for safety purposes right there by order of the Coast Guard, because it is exposed to all the weather and navigation problems that exist in the -- in Boston Harbor, because the risks are inherent in this kind of work, this man qualifies as not only a vessel but as a Jones Act seaman.
03-814 +++$+++ 8319 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is the scow a vessel too?
03-814 +++$+++ 8320 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry. I didn't hear you.
03-814 +++$+++ 8321 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The scow. The --
03-814 +++$+++ 8322 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, the scow.
03-814 +++$+++ 8323 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what happened in this one, if Your Honor pleases, is when -- this was a collision at sea. Client was aboard the scow when it collided with the Super Scoop and he was tossed down a 10-foot --
03-814 +++$+++ 8324 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know the circumstances of the accident. And you're -- you're discussing whether Super Scoop was a vessel. I'm asking if the scow where the injury occurred is a vessel.
03-814 +++$+++ 8325 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, indeed. The scow is -- is what they put the fill in, and as differentiated from a barge, a scow has the ability to open up its bottom to let all the fill out when they get out to sea.
03-814 +++$+++ 8326 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but you haven't told us whether you think it was a vessel or not.
03-814 +++$+++ 8327 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Pardon?
03-814 +++$+++ 8328 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was -- was it a vessel?
03-814 +++$+++ 8329 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The scow is a vessel.
03-814 +++$+++ 8330 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The scow was.
03-814 +++$+++ 8331 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The scow is absolutely a vessel.
03-814 +++$+++ 8332 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, that's not even close.
03-814 +++$+++ 8333 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not even --
03-814 +++$+++ 8334 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, it carries all this goop somewhere else to -- to dump it. Right?
03-814 +++$+++ 8335 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They had to move from here to somewhere else. That's --
03-814 +++$+++ 8336 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then explain to me why --
03-814 +++$+++ 8337 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So did the Super -- sorry.
03-814 +++$+++ 8338 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- why it wasn't the vessel that counts. If it's a vessel and it is in fact the place where he was injured and it was moving, it -- that would be an easy case, but somehow you have to deal with the Super Scoop, and I'm wondering why.
03-814 +++$+++ 8339 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the Super Scoop was not moving at that moment, but the scow was moving --
03-814 +++$+++ 8340 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why don't you just say the scow was a vessel? End of case. The scow was a vessel. It was moving. That's where he was injured.
03-814 +++$+++ 8341 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would take that, Your Honor, but I would like to extend it to get a status -- a statement from this Court so that we can remove the indecisions, the silly tests that the lower courts have been creating for what is a vessel and what is not a vessel.
03-814 +++$+++ 8342 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Kaplan. Thank you. Your time is up.
03-814 +++$+++ 8343 +++$+++ TRUE +++$+++ MR. KAPLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, my. Thank you.
03-814 +++$+++ 8344 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Blatt.
03-814 +++$+++ 8346 +++$+++ FALSE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens, and may it please the Court: Justice Ginsburg, I take it the reason that the scow was not relied on is because the petitioner worked 99.9 percent of his time on the Super Scoop and petitioner never made the argument that he had a connection to the scow. But this case, the dredge, the Super Scoop, was a vessel in navigation and it's an easy case under both standards because it remained in service as a means of carrying its workers and equipment as it moved along the Boston Harbor.
03-814 +++$+++ 8347 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you think we need to use the word practical or practically in section 3?
03-814 +++$+++ 8348 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. I mean, you've -- you've read it in into Evansville and Cope, the -- the dry-dock case, but it's -- it's basically referring to any mobile watercraft that is practically capable of moving either cargo or people.
03-814 +++$+++ 8349 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why is that reading anything in? I mean, do -- do you think if -- if you were not practically capable, you would be capable?
03-814 +++$+++ 8350 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't -- I don't think it much --
03-814 +++$+++ 8351 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't regard that as a reading in at all. I mean, capable means capable. You're either capable or not. If you practically can't be moved, your're not capable.
03-814 +++$+++ 8352 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's fine, and I think -- like I said, this is an easy case. If I could address some of the -- the --
03-814 +++$+++ 8353 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why -- why is this an easy case? Because, after all, the First Circuit is struggling with the same problem and they came to the conclusion, use section 3. That's fine. But you know that the garage door is not a vessel, and you also know that Jimmy's Harborside is not a vessel. And you also know that Justice Scalia's beached scow or something is not a vessel. And I take it nor is a vessel a scow that's tied up for 364 days of the year and acts as a picnic place and one day they take it out to sea and -- because they want to move it across the harbor. I guess that isn't a vessel. Is it? Or maybe it is. So why is this so easy? Because the First Circuit --
03-814 +++$+++ 8354 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, the --
03-814 +++$+++ 8355 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- tries to make those distinctions.
03-814 +++$+++ 8356 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. The -- I respectfully disagree. The First Circuit was way off base. It did not use section 3 of title 1.
03-814 +++$+++ 8357 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Let's say it's wrong about that.
03-814 +++$+++ 8358 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What it did is it --
03-814 +++$+++ 8359 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now let's take section 3.
03-814 +++$+++ 8360 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay, let's -- okay, let's go from there.
03-814 +++$+++ 8361 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And taking section 3, it seems to me, we have the same problems.
03-814 +++$+++ 8362 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Let me -- let me answer your question.
03-814 +++$+++ 8363 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I'd like to know your answer and you just said to Scalia what I thought -- Justice Scalia that I thought what was an answer isn't because I thought that word practical, as co-counsel recommended, has a rather specialized meaning where we get rid of a lot of these. Now you're saying no, it doesn't.
03-814 +++$+++ 8364 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the -- the -- you look at the physical characteristics and the surrounding circumstances of any type of watercraft, and if it's out there moving, I -- I think that really is an easy case. What I think is bothering -- what was bothering the First Circuit is that this vessel clearly had a stationary purpose. It had two essential and indispensable purposes, one of which was stationary and one of which was a mobile barge. The types of cases that raise problems under 1 U.S.C. 3 is you have things that meet the definition of vessel. The Coast Guard regulates them as vessels, but if they have no function to transport people or things -- and the best example is our country's battleships. They're basically retired vessels. They're museums. And there are some casino boats that function the same way. They have no transportation function. They've been withdrawn from navigation. If you want a legal standard for what in navigation is it's this. It's what the Court said in Chandris, which is it's the status of the ship, and that means does it have some -- is it still servicing as a ship.
03-814 +++$+++ 8365 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that goes to in navigation --
03-814 +++$+++ 8366 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
03-814 +++$+++ 8367 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- not to whether it's a vessel or not. It is still a vessel even if it's beached up on land so long as it is capable of -- of floating. It's just not in navigation, isn't it?
03-814 +++$+++ 8368 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree. The only types of cases where a vessel would lose its status as a vessel if it's been basically -- there -- there are basically two kinds of cases where the casino boats or the museums or hotels have lost their status. And there are basically -- there are two examples. They're boats in a moat. They've been basically landlocked in through concrete or landfilled and they can't go anywhere. And the other one that's -- that's equally as common is pipes and stuff have been driven through the hull of the ship, and they're not practically capable of transporting anything. They'd have to be overhauled.
03-814 +++$+++ 8369 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Your -- your view of the word in navigation does all the work here. And so a -- a concert ship, which exists, which say is docked at a dock for, let's say, 300 days of the year or maybe 360, and those other 5 days they -- they move it from one town to the next town where it stays for another 4 months, that is in navigation or not?
03-814 +++$+++ 8370 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We think it's in navigation. If you have a --
03-814 +++$+++ 8371 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. So then --
03-814 +++$+++ 8372 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it's --
03-814 +++$+++ 8373 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the concert master and the -- the -- all the orchestra players and everyone else are covered by the Jones Act even though, by the way, none of them has ever moved whatsoever.
03-814 +++$+++ 8374 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, no. That's not correct. It just means it might be a vessel in navigation. You have cruise ships, military ships, pleasure crafts that sit all the time, some for years, but they're still ready for another voyage when and if they're needed. Those are still in navigation. Now, if you have --
03-814 +++$+++ 8375 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if that's so, that's --
03-814 +++$+++ 8376 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm going to answer your question on the seaman. If you've got a worker that never goes to sea on a vessel in navigation, the place to deal with that is not by saying it's not a vessel or not that it's not in navigation. But this Court emphasized in the Harbor Tug and Barge case, as well as the Chandris case, that there has to be a substantial connection not only in duration but also with respect to nature. And the Court in Harbor Tug said that -- that inquiry will concentrate on whether the employee's duties take him to sea.
03-814 +++$+++ 8377 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. In the case of the steam shovel operator on the dredge, do we say that -- that he contributes toward that function because it can't move unless he dredges first, so that the -- the whole object of moving across the harbor to dredge includes the -- the dredging part?
03-814 +++$+++ 8378 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
03-814 +++$+++ 8379 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that the way we do it?
03-814 +++$+++ 8380 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's -- there's a decision in McDermott v. Wilander that expressly holds that the worker need not aid in the navigation of the ship.
03-814 +++$+++ 8381 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's right.
03-814 +++$+++ 8382 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Bartenders, croupiers, waitresses, et cetera on cruise ships are all seamen. That's just the holding of McDermott v. Wilander. Now, there's still a separate question of whether they're exposed to the perils of sea.
03-814 +++$+++ 8383 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So as long as -- as long as somebody is -- is engaged in a navigation --
03-814 +++$+++ 8384 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the ship's work --
03-814 +++$+++ 8385 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- function, everybody else comes --
03-814 +++$+++ 8386 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- whether that work is gambling or --
03-814 +++$+++ 8387 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
03-814 +++$+++ 8388 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But now we have, in my concert ship, the concert master and the whole orchestra covered by the Jones Act even if none of them, by the way, has ever been even to sea on that day when -- they take the train.
03-814 +++$+++ 8389 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I just said that they may not be covered, but they --
03-814 +++$+++ 8390 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because?
03-814 +++$+++ 8391 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They may not be covered --
03-814 +++$+++ 8392 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because?
03-814 +++$+++ 8393 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They may not be covered if they fail the last requirement --
03-814 +++$+++ 8394 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it says --
03-814 +++$+++ 8395 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of Chandris.
03-814 +++$+++ 8396 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in terms of both its duration and its nature, i.e., a connection to a vessel --
03-814 +++$+++ 8397 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Vessel in navigation.
03-814 +++$+++ 8398 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in navigation.
03-814 +++$+++ 8399 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, and I -- Harbor Tug v. Barge, which is a later opinion, explains that that test will look at whether the employee's duties take him or her to sea. Now, in this case the dredges operate not only -- only on the water, but they're out there usually away from shore and are engaged in regular movement over navigable waters. And the workers on that dredge, such as petitioner, are subject to the traditional perils of navigation which include not only collision with ships, but even capsizing. Barges such as dredges are particularly susceptible to capsizing because their distance between the deck of the barge and the water, which is known as the freeboard, is low. In this case it was only 5 feet, and they have a high center of gravity because of those derricks or cranes that are holding the bucket ship. And if it's operating in poor weather or for some reason it's overloaded, they can tip over and you have a marine incident or even casualties. And this worker was exposed to the perils of navigation like other traditional seamen. And this Court -- we think it's pretty telling that the Court basically in two decisions has resolved this case. You have already used 1 U.S.C. 3 in the Norton case in defining what is a vessel for purposes of the seamen exclusion in the Longshore Act. And then in the Ellis decision, this Court has already held that a dredge, including the scows that were accompanying that dredge, were vessels for purposes of 1 U.S.C. 3 and that the workers were seamen and that they were basically called upon to perform the duties, more or less, of ordinary seamen. And every other court that had looked at the issue and passed on it had equally held that dredges were vessels for a variety of maritime purposes. That was seamen's liens, limitation of liability, and -- and the overtime -- overtime laws in the Ellis case.
03-814 +++$+++ 8400 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Blatt, the -- there was a brief filed by Signal I think that argues that a Jones Act vessel has to provide food, care and lodging to be covered.
03-814 +++$+++ 8401 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. With due respect to the author, I think that approach is novel, it's radical, and it's unsubstantiated. Never has the definition of vessel turned on whether the watercraft has sleeping quarters.
03-814 +++$+++ 8402 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are there problems in computing maintenance and cure in a case like this one?
03-814 +++$+++ 8403 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's usually governed by the collective bargaining agreement. I think it's something like $40 a day, and this petitioner was a union laborer. And it's -- it's usually governed --
03-814 +++$+++ 8404 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose it were just left up to the law. Are there problems in computing what cure and maintenance --
03-814 +++$+++ 8405 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There used to be, but in -- there used to be a debate, which I think most of the cases the Signal brief is relying on, in how long maintenance and cure goes for and it was a rather kind of arcane, tricky thing, but basically this Court resolved it in 1930. It goes to maximum cure, until the seamen can no longer be cured. And there used to be a debate about should it just go to the extent of the wage contract or to some longer point, and the Court resolved that. But there is no case that has ever even discussed the fact that a vessel turns on whether it has sleeping quarters. And we think that brief is also fatally undermined by the decision in Ellis and all the -- decision in Ellis already holding that vessels -- or the workers were seamen, and there was never been a discussion in those dredge cases about whether they had sleeping quarters. Several of those cases -- the most oft-cited one is that Saylor v. Taylor case out of the Fourth Circuit, was a maritime lien case, and those are exactly the type of workers that this Court in McDermott said were seamen who were intended to be covered under the Jones Act. If there are no questions, we would ask that the First Circuit's decision be reversed.
03-814 +++$+++ 8406 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Ms. Blatt. Mr. Connelly.
03-814 +++$+++ 8408 +++$+++ FALSE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: This Court in Chandris and in Harbor Tug stated that the basic point of trying to be reached is to separate lien-based employees from sea-based employees. This Court also stated that was Congress' goal in passing the Jones Act. The Court wrote: the Jones Act remedy is reserved for employees whose work regularly exposes them to the special hazards and disadvantages to which they who go down to the sea in ships are subjected. The First Circuit's ruling is much more likely to get to that result. The goal that this Court stated was Congress' goal then is section -- excuse me -- 1 U.S.C., section 3. Justice O'Connor, your first question had to do with the casino boats, and that is a point that I was going to raise. Those casino boats are traditional vessels plying the rivers and used mostly in the Midwest and -- and the Great Lakes. Those States have recently over the last 3 or 4 years changed their law. The law had been that they had to go up to -- out into navigation. They've now changed them and said, no, you must stay dockside. All they are is tied up dockside. They can be untied and moved out at any time. The cases that -- and you're probably going to have some before you -- are dealing with dealers and waiters and waitresses who go aboard the casino boat and maybe fall down in the kitchen or something and are injured. They have never been on the boat while it was moved and it hasn't moved for the last several years.
03-814 +++$+++ 8409 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that might affect the decision of whether they are seamen covered under the Jones Act. It might still be a vessel.
03-814 +++$+++ 8410 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-814 +++$+++ 8411 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there may be other aspects of the test that aren't met --
03-814 +++$+++ 8412 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But breaking it down --
03-814 +++$+++ 8413 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- when the thing is tied up.
03-814 +++$+++ 8414 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Breaking it down, Your Honor, if the petitioner has his way, those tests are met. The first test is whether it's a vessel. It is a vessel. Second test, whether it's in navigation. The Government has just told you, and it states in its brief, any vessel that had any transportation purpose at all that is still not -- unless it's mothballed -- and I think they said today either pipes driven through it or in cement -- is a vessel in navigation. So it is a vessel in navigation. We know that the --
03-814 +++$+++ 8415 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think it might be a vessel, but probably not in navigation while it's tied up or in mothballs.
03-814 +++$+++ 8416 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, Your Honor, all it is is tied to the pier. The Government has taken the position, as has petitioner, in their briefs and here today that it's still in navigation if it can be used.
03-814 +++$+++ 8417 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but I think what the Government has said is that though it's in navigation, we have a case that says that the -- that the seaman's connection to the ship has to be related to the functioning of the ship in navigation. He doesn't have to navigate it, but he has to be working at what the ship does in the course of its navigation, and a dredge operator does that.
03-814 +++$+++ 8418 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think a dredge operator does that any more than the waiter on the casino. The dredge operator -- the dredge is there to do construction work. It is there to dredge. The casino is there to have people gamble and serve them drinks.
03-814 +++$+++ 8419 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But isn't -- isn't that the point? The dredge is there necessarily to move. The casino is not there necessarily to move.
03-814 +++$+++ 8420 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it is our position -- and as shared by some of the First Circuit -- that the movement of the dredge was incidental. Once --
03-814 +++$+++ 8421 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Should we clarify that? Because I don't -- I didn't read the case saying what Justice Scalia just said or what you -- what it says is that a seaman must have a connection to a substantial -- in terms of duration and nature connection to a vessel in navigation.
03-814 +++$+++ 8422 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
03-814 +++$+++ 8423 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Obviously, a croupier has such a connection.
03-814 +++$+++ 8424 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, Your Honor.
03-814 +++$+++ 8425 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It doesn't say anything about being connected to the navigating part.
03-814 +++$+++ 8426 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, and this Court handled that in Wilander, Your Honor, that it said in --
03-814 +++$+++ 8427 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Not to the navigating part but to what the vessel is doing in the course of its being in navigation.
03-814 +++$+++ 8428 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the term, Your Honor, in navigation, had the bite that I think it should have, then we may not be here today at all. The First Circuit was actually looking at the actual transportation function, assuming that it had to be into navigation. What the -- what the petitioner wants is 1 U.S.C., section 3 which looks at theoretical transportation, a mere capability. And Your Honor, I understand what you said, Justice Scalia, that to you, they're the same, practical capability or capability. But to the petitioner and the Government, they are far different. In both of their briefs, they have said that without the Evansville change in the language of the statute which adds practical capability, both have agreed that it is overly inclusive a statute, 1 U.S.C., section 3. It includes everything and including Justice Breyer's garage door.
03-814 +++$+++ 8429 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But as Mr. Kaplan pointed out, all -- the fact that something is a vessel doesn't mean there's Jones Act coverage, and I think Mr. Kaplan was getting to the perils of the sea. Someone who's working on a boat that is not in the water day in and day out is never exposed to the perils of the sea.
03-814 +++$+++ 8430 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, the perils of the sea, which this Court discussed at length in the Papai case, we -- we say that -- that is further evidence that Mr. Stewart is not entitled to Jones Act remedies. Mr. Stewart was on a construction site. It happened to be a work platform in site of land. He was never more than 500 yards off the coast. The dangers that he was up against were more akin to that of a construction worker or, at the very least, a harbor worker or a stevedore. They were not the same perils that are normally faced by a true seaman. Now --
03-814 +++$+++ 8431 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ One peril was a collision with another vessel, and that's exactly what happened here.
03-814 +++$+++ 8432 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We disagree with that, Your Honor. This was a situation where the Super Scoop was -- was moored. It was anchored and stationary, again as a stationary work platform. The scow was just being brought from one side to the other alongside -- attached to it at all time by -- by cables and by the crane. The -- the -- he got jostled and he fell. No different than harbor workers and stevedores face everyday when they're unloading ships and working on harbors.
03-814 +++$+++ 8433 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose there had been -- suppose there had been very rough water --
03-814 +++$+++ 8434 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They would have sent everyone home.
03-814 +++$+++ 8435 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and -- and the crane operator was the -- was operating it and the water came over the freeboard and it capsized. That's -- that would be the perils of the sea, wouldn't it?
03-814 +++$+++ 8436 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, because we are in the protected harbors of the -- of Boston Harbor --
03-814 +++$+++ 8437 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. This is my -- this is a special day in Boston -- (Laughter.)
03-814 +++$+++ 8438 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- which -- which they have --
03-814 +++$+++ 8439 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That happened a week ago.
03-814 +++$+++ 8440 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- every 86 years or something. (Laughter.)
03-814 +++$+++ 8441 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It happens every -- every 86 years they have one of these storms. (Laughter.)
03-814 +++$+++ 8442 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your --
03-814 +++$+++ 8443 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So far.
03-814 +++$+++ 8444 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think in that -- in that -- using your hypothetical, it's a construction platform right off the coast. They'd send everyone home. If there was any trouble with the sea, the -- the greatest perils that are discussed in the petitioner's brief -- and they list them all -- one of them is isolation and far away from home and far from aid. Those don't apply to Mr. Stewart. Mr. Stewart would be sent home if there was too much -- the weather got bad. He would be sent home in a -- in a minute or 2. He lived right in Boston. He was in the middle of a large city. There was no major danger of isolation. That -- the Super Scoop was inspected regularly by the State, Federal, and Government officials and by the general contractor on the job. There was no isolation. All of the perils that have been listed by --
03-814 +++$+++ 8445 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and by the Coast Guard.
03-814 +++$+++ 8446 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Coast Guard also. I'm not sure they went out on a regular basis, but they did inspect the -- the Super Scoop at -- at some point. There's no question about that. This Court --
03-814 +++$+++ 8447 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're not contending that anything that happens in a harbor is not exposed to the perils of the sea, are you?
03-814 +++$+++ 8448 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, absolutely not, Your Honor. This Court in Cope and earlier cases has long equated a vessel with transportation. That's what the First Circuit did. They -- they needed a bright line. They chose a bright line, and the bright line was transportation. Is the structure primarily engaged in transportation or commerce? And navigation, transportation, and commerce are all intermixed, and -- and the definitions include each other. And they found that it was not primarily engaged in transportation. It was primarily a work platform doing construction.
03-814 +++$+++ 8449 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But how do you -- how can you possibly describe as a bright line test anything that says you have to identify the primary function? Plus, even if it's not its primary function, if it happens to be moving at the time of the accident, then there's coverage. That doesn't seem to me very bright line.
03-814 +++$+++ 8450 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, what it is, I believe, is a bright line test with an exception. And the Stewart case talked about the DiGiovanni exception, which falls very closely to -- to what Justice Stevens wrote in his concurring opinion in the Chandris case, that it is unfair that somebody who was actually injured while a -- a vessel or -- or structure is in actual navigation does not get at least a second bite at the apple and that that person cannot be -- said to be a Jones Act seaman.
03-814 +++$+++ 8451 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even though the identical accident happens to his buddy 10 minutes before when the vessel isn't moving.
03-814 +++$+++ 8452 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, at no time during the 1 and a half years that Mr. Stewart was in the harbor, as far as we know from the record, was the Super Scoop in transportation. The incidental movement of -- of pulling forward a few feet with its anchors is not navigation or transport -- transportation. The First Circuit stated that the movement of the scow was both immaterial because, as the Government has already admitted, he wasn't tied to the scow. His -- his time was spent on the Super Scoop, but also incidental, Your Honor, because it was just slight movement along the site. It wasn't transportation or navigation. At no point -- and -- and the petitioner has put their spin on this that -- stating that Mr. Stewart every day he was out there moved in and out of coverage. That's not true. He was never in Jones Act coverage. And Your Honor --
03-814 +++$+++ 8453 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I guess I could agree with you if -- if I believed that I had to look to the primary purpose, whether the primary purpose of the vessel was transportation. But what -- what do you do about gambling ships that, you know, they -- they sail out beyond the 2-mile limit and then come right back to where they left? Now, people get on board not to get transported. They get on board to gamble. And the purpose of the ship, the primary purpose of the ship, is gambling. You think that -- that -- the -- the seamen who -- who are on that ship, which regularly goes out beyond the 2-mile limit, you think that they're -- that they're not covered by the Jones Act?
03-814 +++$+++ 8454 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think in that situation, Your Honor, it's -- it's a closer call, that they --
03-814 +++$+++ 8455 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't think it's close at all. I think they're obviously covered by the Jones Act.
03-814 +++$+++ 8456 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is a traditional trip -- ship and those people are engaged in a form of transport --
03-814 +++$+++ 8457 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but that's not the primary purpose of -- of the ship, just as the primary purpose of this scow is -- of -- of this dredge is not transportation.
03-814 +++$+++ 8458 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In that situation, Your Honor, it would be -- it would be a primary purpose, though, that transporting the people who happen to be gambling --
03-814 +++$+++ 8459 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, a primary purpose? Now, you're getting a little fuzzy there. I thought you said the primary purpose.
03-814 +++$+++ 8460 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in the First Circuit --
03-814 +++$+++ 8461 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It has to be a primary purpose.
03-814 +++$+++ 8462 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in the Manuel court, the Fifth Circuit actually uses the term, a primary purpose.
03-814 +++$+++ 8463 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ A. Oh.
03-814 +++$+++ 8464 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and I think -- and to a degree that --
03-814 +++$+++ 8465 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you think that's not fuzzy. (Laughter.)
03-814 +++$+++ 8466 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's an -- it's an oxymoron, Your Honor. But what -- what the First Circuit was doing in -- in the Stewart case is -- is similar to what this Court did in Chandris. It was looking at a temporal view. A worker -- and the temporal view used by this Court in Chandris was looking at what the worker was doing. What were his duties? He isn't going to be denied Jones Act coverage because he happened to be an office worker 2 months before if his duties had changed and he was now a Jones Act seaman, nor if he fell in the office, after he had been reassigned to the office, was he going to gain Jones Act seaman status just because he spent the last 2 years on the vessel. That is what the First Circuit has done in terms of the vessel as well, not just the work but in terms of the vessel. Do not look at what this vessel did in the past. Do not look at what it did -- might do in the -- in the future. It's transportation from California through the Panama Canal up the east coast is immaterial. You should look at the worker who is claiming Jones Act status, his relationship to the structure and what the structure's purpose was and business was during that relationship. During the 1 and a half years that he was associated with it, it wasn't transporting anything. It was used as a -- a work platform only, only a structure, and it wasn't transporting anything during that time. The same thing with the casino boats, these individuals who go upon the casinos as a waitress and are never -- never leave the port, never leave the dock shouldn't be entitled to the special protections of the Jones Act. They face none of the perils of -- of the sea or of -- of perils of -- of navigation.
03-814 +++$+++ 8467 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There's a difference to this extent, would you agree, that something that's just tied up to the dock and never moves is different from something that is actually in the water and whether you call it transportation, it is moving? It has to move to engage in the construction of this tunnel.
03-814 +++$+++ 8468 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, this Court has decided, I believe it was in Chandris, that a -- a seaman doesn't lose his seaman status just because the vessel he's assigned to is now in -- in port. They wanted -- they didn't want a person to go in and out too many --
03-814 +++$+++ 8469 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I'm just -- let's focus on what is a vessel because someone -- it may be a vessel but the injured person may not be a seaman. Those are two different things. This is only the first step. So when you're bringing in what the worker does, whether it's a croupier or whatever, the only question that we are considering is, is this dredge a vessel? We're not involved with the question of whether the worker is a seaman unless we pass that basic threshold.
03-814 +++$+++ 8470 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor, but of course, the ultimate issue the Court is trying to arrive at is whether or not Mr. Stewart is a Jones Act seaman. And this Court has held for him to be a Jones Act seaman, it must be a vessel in navigation. I don't think that that can be separated, that just looking at a vessel. 1 U.S.C., section 3, which the petitioner wishes, of course, everything -- everything that floats that is capable of transportation is -- is a vessel. The First Circuit has -- has used a much more narrow definition but focusing on the purpose and primary use of the structure because it is trying to get to where this Court was trying to get. Is it a vessel in navigation?
03-814 +++$+++ 8471 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it -- is it the vessel that's the problem? Why -- why do you focus on the vessel? It seems to me most of your argument has gone to whether it's in navigation. Can you be a vessel that is not in navigation?
03-814 +++$+++ 8472 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
03-814 +++$+++ 8473 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, you can or you wouldn't have the -- the combination of the two terms appearing anywhere. So why isn't the problem here not whether it's a vessel but whether it's in navigation?
03-814 +++$+++ 8474 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again, Your Honor, if -- if in navigation means what it should mean, which is an instrument for transportation or commerce over navigable waters, and not simply as the petitioner and the Government want it to mean that anything that once might have been in navigable waters and stays in navigable waters and isn't mothballed is still in navigation -- if it means what it should mean, then that's something I think the First Circuit is -- was trying to get to anyway. They -- they were looking at it in terms of vessel status, vessel in navigation versus just in navigation. They -- they were trying to get there and that's why they used what is really a -- a temporal look and looked at what was the business use.
03-814 +++$+++ 8475 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, exactly. And -- and in Chandris, this Court rejected the snapshot approach to determining what's a vessel and the First Circuit seemed to go back to that. And certainly what the First Circuit did seems in serious tension with this Court's cases. It just didn't follow the same line that we had outlined.
03-814 +++$+++ 8476 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The First Circuit does -- the First Circuit rule, Your Honor, in DiGiovanni and Fall and Stewart does have a snapshot exception.
03-814 +++$+++ 8477 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
03-814 +++$+++ 8478 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's the main rule which has a bright line --
03-814 +++$+++ 8479 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right, and that was rejected by this Court in Chandris. So I -- I think there's a problem here.
03-814 +++$+++ 8480 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, there -- there are always -- and this is answering Justice Ginsburg's question earlier as well. There are always going to be difficult situations where some people, doing the exact same work, using the same equipment on the same structure, some are covered and some are not, a situation where one has the requisite connection 30 or 40 percent to a vessel, the other person doing the same work next to him only has 10 percent. One is covered.
03-814 +++$+++ 8481 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but it might be much simpler to rely on 1 U.S. Code, section 3 and our -- our definition, as we've described it there, and then deal with other situations within the framework of the definition of seaman and the other issues that arise. And it seems like the First Circuit went backwards from Chandris back to Giovanni which basically had been rejected. So that's the concern.
03-814 +++$+++ 8482 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, again, I -- I think that if 1 U.S.C., section 3 is adopted, then every vessel capable --
03-814 +++$+++ 8483 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Congress adopted that.
03-814 +++$+++ 8484 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't -- I don't agree, Your Honor. The way -- the way we look at the congressional intent -- this Court has already decided in -- in several cases that Congress left it to the Court to decide which persons are -- should be granted Jones Act seaman status. This is what the Court has said. Why then would the Congress in -- in the same statutes have sort of handcuffed the Court by saying it's for you to decide who's a Jones Act seaman and who's entitled to those special protections, but we're going to handcuff you and -- and say this is what you have to decide as far as vessel is concerned? 1 U.S.C., section 3 was not followed. I should also point out that the petitioner is a recent convert to this position, and it -- it hasn't been followed in the circuits at all. There isn't a lot of cases out there where a lot of circuit judges have stated section 3 should be the definition for the Jones Act.
03-814 +++$+++ 8485 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If -- if you go -- I thought vessel -- the word vessel appears in our cases. It doesn't appear in the Jones Act. Am I right or not about that?
03-814 +++$+++ 8486 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does not appear in the Jones Act --
03-814 +++$+++ 8487 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. So we have a degree of freedom on this. But -- but the -- the question then is, is it -- how -- I'm getting the impression from you and -- and from the SG that it's rather deeply embedded in the law, if we start reading the Fifth Circuit cases, that if we define X as a vessel, automatically it is a vessel in navigation, that the cases have said the word in navigation mean nothing, with one exception. The exception is if you actually have like a physical cemented connection to the land so they can't escape. Otherwise, if it's just tied up at a dock, even if it never goes to sea, those words, in navigation, have no meaning. If it's a vessel, it's a vessel in navigation. If it's my garage door, my garage door, which can float, is a vessel in navigation. Now, how accurate is that assumption I'm now making? What would I read in the law? Is that definition of in navigation as meaning virtually nothing really embedded in the law?
03-814 +++$+++ 8488 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is pursuant to what -- the petitioner and the Government's view.
03-814 +++$+++ 8489 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I know it is but what is your view?
03-814 +++$+++ 8490 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My view is that it shouldn't be, that it should have some bite to it. It should mean, as -- as I stated before, an instrument of commerce or transportation over navigable waters. But that's not what it has come to mean in a lot of the circuits below. It has come to mean something that's just simply in navigable waters no matter how many years it has gone without --
03-814 +++$+++ 8491 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, would it help? Suppose we were to say it was -- had to be capable, at least, of having a captain and crew?
03-814 +++$+++ 8492 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I have never thought of that, Your Honor.
03-814 +++$+++ 8493 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then we better not do anything for the first time. (Laughter.)
03-814 +++$+++ 8494 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think in that in that situation, there are -- there can be vessels involved with transportation, getting back to the Cope case and other cases, where there -- it's -- it's a barge being towed, but it's transporting things. We're not disputing that. I don't think it needs to have a captain and crew necessarily to be a -- considered a vessel in navigation. But you hit the nail on the head, Your Honor, and that's -- that's where the First Circuit was befuddled in -- in trying to come up with a regional -- reasonable test because they're dealing with this situation where it seemed like everything is a vessel in navigation. And yet, that doesn't serve Congress' intent of only persons who face the perils of the sea are entitled to the special protections under the Jones Act.
03-814 +++$+++ 8495 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The -- the word vessel does appear in the Longshore and Harbor Workers Compensation Act.
03-814 +++$+++ 8496 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, Your Honor.
03-814 +++$+++ 8497 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And this is the -- the only purpose of the vessel inquiry that we're involved in is to -- to say is this person within one injury compensation scheme or another.
03-814 +++$+++ 8498 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
03-814 +++$+++ 8499 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now why, in making that inquiry, should the courts go off on their own and be inventive and come up with a definition when Congress has given a definition that can be used by default? If Congress thinks it should be other than the general definition they have provided, Congress can also do that. But in the meantime, why should the courts go creating definitions instead of using the one that's right there in the statute book?
03-814 +++$+++ 8500 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because this Court effectively overruled the definition or decided not to use it in the Evansville case. It saw in that case that it would not just rely on the section 3 language. It would add the word practically, practically capable, and -- and not just capable because the Court saw that in Evansville the wharf boat, which they determined was not a vessel, even though again not dealing with the Jones Act, it was capable of transportation, but it wasn't practically capable of transportation. So the --
03-814 +++$+++ 8501 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was the Court then --
03-814 +++$+++ 8502 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the Court has decided --
03-814 +++$+++ 8503 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- just construing --
03-814 +++$+++ 8504 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- not to follow section 3.
03-814 +++$+++ 8505 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- just construing instead of not following, but say by capable, Congress must mean practically capable.
03-814 +++$+++ 8506 +++$+++ TRUE +++$+++ MR. CONNELLY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor -- and I realize that is what Justice Scalia said earlier. The position of the petitioner, as he stated as he was standing here not too many minutes ago, was that they seek to have the Court employ 1 U.S.C., section 3, not the Evansville change to that section. They -- they see it as quite different and it's in both of their briefs, that Evansville did change 1 U.S.C., section 3. The petitioner's position is that this Court is bound by -- to follow 1 U.S.C., section 3 because Congress says so. It is our position that they're not so bound. If you're bound -- if you're not bound, why take a faulty definition such as section 3 and try to change it a little bit? You're -- you're free to as -- as you are, to determine who is a Jones Act seaman. You're free to determine what is a vessel in navigation or a vessel pertaining to the -- the Jones Act. 1 U.S.C., section 3 was never referenced in the Longshore Act. Congress at that time, many years before and many years after, has passed many statutes in which vessel is defined. Sometimes they reference section 3; other times they write in a definition. Sometimes it's similar to section 3, sometimes quite different. In this case -- for the Longshore Act, they decided to leave it to the courts. The Jones Act was passed in 1920. Its predecessor was the Act of 1915. That act did have a definition of vessel that was very restrictive and actually talked about actual navigation. In 1920, the Merchant Marine Act was passed and it -- that portion of it had a very large definition, which was already discussed earlier, the Shipping Act definition. The Jones Act didn't adopt that one and it didn't adopt the one in 1915. The -- the Longshore and Harbor Workers Act was passed in 1927. Certainly by that point they knew that they had just jettisoned two definitions 7 years before. They chose again to leave it to the courts. In 1972 and again in 1984, there were considerable amendments that Congress did to the Longshore Act. At that time, they certainly knew -- and there's always been heavy -- heavy lobbying going on in Congress every time that they try to touch the Longshore Act or -- or the Jones Act. They knew by that point in time that the circuits were not using section 3 as the definition for Jones Act vessel. Again, they chose to leave it to the courts. They did not intercede and then reference section 3 or incorporate a definition like it or something. They again chose not to. In 1920, section 3 was certainly not the only definition of vessel. Benedict on Admiralty, which this Court has cited several times, which the petitioner has cited, had a completely different definition of -- of vessel, and that could have been the one that Congress had in mind. I realize it's always dangerous to mention the Congressional Record, but most of the people who spoke in 1920 and again in -- mainly in 1927 were discussing traditional vessels and vessels on a voyage. If they had true seamen in mind, they probably had more of a traditional vessel in mind. Also looking at the record, when the House wanted to include everybody, all seamen, into the Longshore Act, they listed out various structures such as dredges and barges. Obviously, a compromise was reached with the Senate, and when the act was passed, they limited it, not just seamen and -- and but only to masters and members of crews of vessels. They limited it to that and left it, of course, to the courts to decide who is entitled to the Jones Act status. If I may have a second, Your Honor. The term vessel can and often has had a different meaning for the Jones Act, which this Court has stated is a vessel in navigation, than it does with the Longshore and Harbor Workers Act. In his amicus brief filed on behalf of the petitioner, Mr. Hillsman writes that the lower court unanimously -- unanimously -- have decided that the definition of vessel for purposes of the Longshore Act is much, much more inclusive than it is for the Jones Act, and it has worked perfectly fine. Under the Longshore Act, most of the persons who collect Longshore benefits only have to show it's a maritime nexus. There's no vessel requirement from almost all of the claims under the Longshore Act. Another point I wish to make is that both the First Circuit and the petitioner talked about a bright line test. The First Circuit, though, test is dealing with actual transportation, the actual use in business of the structure during the time that the person who is claiming special status is associated with it. More confusing is dealing with 1 U.S.C., section 3, which although bright is also very broad and would include everything. Anything that floats or is capable of floating would be included under that. There are always going to be situations, no matter what definition the Court comes up with -- always situations where a person would have to be covered under both acts, and I realize in the Chandris case, it was the goal of the Court to say we'd like to make it clear as we -- we can. We don't want people going in and out of Jones Act status. However, as this Court saw in Gizoni, a perfect example -- in Gizoni, the person was a harbor worker. This Court sent it back to the lower court saying -- the lower court had said you're a harbor worker. That's your label. You're in the harbor workers' union. You're not entitled to -- for Jones Act status. This Court said no, send it back, let's take another look. The person, although a harbor worker, may have had the requisite connections to a vessel in navigation to be able to claim Jones Act seaman status. Obviously, in that situation, which is a perfect example, the -- the employer would have had to cover him under the Longshore Act and if -- if the lower court changes or -- or the jury decides that he's a Jones Act seaman, would have had to have covered him under the Jones Act. Professor Schoenbaum has said that the mutual exclusivity of the two acts is really in theory only and that there are always cases and will be dealing with the brown water seamen and brown water employees, harbor workers and longshoremen, where they're going to have to be covered under both anyway. Again, the First Circuit test, which does have an exception to it, which it clearly is -- is a snapshot, again to give someone another bite at the apple, which this Court thought, at least in the concurring opinion in Chandris, was a fair result, has that. But the test itself is -- is broad. It -- it is a bright line and it makes it clear, as this Court has stated in the past, that unless there's a transportation function, it's not a vessel in navigation. Thank you.
03-814 +++$+++ 8507 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Connelly. The case is submitted.
03-855 +++$+++ 8511 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We will now hear argument in the case of City against -- Sherrill, New York against the Oneida Indian Nation of New York. Mr. Sacks, whenever you're ready.
03-855 +++$+++ 8513 +++$+++ FALSE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: With the Court's permission, the State of New York, as amicus, will address issues related to the Treaty of Buffalo Creek and I will address the other reasons why aboriginal title and other Indian possessory rights to the properties at issue were extinguished long before the Oneida Indian Nation purchased the properties in 1997 and 1998. The asserted basis for tax immunity in this case appears at page 1 of respondent's brief which is that the Oneidas have at all times held a tribal possessory right in the properties. But even if there was a tribal possessory right, aboriginal title or under the Treaty of Canandaigua, in 1805 and 1807 when these properties passed out of tribal hands, the passage of 190 years has extinguished that right. For 190 years, these properties have been in private non-Indian hands, have been freely alienable, have been transferred to innumerable innocent purchasers and have been subject to the full panoply of state and local laws including taxation.
03-855 +++$+++ 8514 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, is it your position that whenever an Indian transfers land in violation of the Nonintercourse Act, that that's a valid transfer? And if not, why is this different?
03-855 +++$+++ 8515 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. It is not our position that that would be a valid transfer if there was a violation of the Nonintercourse Act. The principal issue here is whether, after of the passage of 190 years, there remains a possessory right. If there was a violation of a Nonintercourse Act in 1805 and 1807, Justice Kennedy, we believe the Oneida Indian Nation has a -- under this Court's decision in Oneida II -- a federal common law damage suit against New York State or against the United States of America for failing to exercise its fiduciary duty. But after 190 years, in 1997, they did not have a possessory right to these properties. The possessory right we're talking about, aboriginal title or some other tribal possessory right, isn't just a concept. As this Court has defined aboriginal title of those possessory rights, it's a right to current possession. And under this Court's decisions in cases such as Felix versus Patrick and Yankton Sioux, and Williams and Mitchell and Santa Fe, all of which were cited in the dissent written by Justice Stevens, for the, for members of dissent in Oneida II, tribal possessory rights are barred by that passage of time, the change in the character of the land and the innumerable innocent purchasers.
03-855 +++$+++ 8516 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why does not having a possessory right mean that the city could tax them, or the State?
03-855 +++$+++ 8517 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The basis for the tax immunity here is that this land does not have Indian country status. For this land to have Indian country status, it has to be, in our view, under this Court's Venetie decision, Federal set-asides and Federal superintendence. If you look at how the Oneida Indian nation got this land in 1997, it wasn't because of any set-aside by the Federal Government in 1794, even if there was, and I will get to that later.
03-855 +++$+++ 8518 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, I'm just thinking, that suppose you have a reservation but the tribe doesn't have a possessory right because in the middle of the reservation, there is some kind of long-term lease or a sale to a house that's owned by somebody else who is not a member of the tribe. I would think -- am I right that the city or the county in which that reservation sits can't tax it anyway?
03-855 +++$+++ 8519 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. I absolutely agree with you.
03-855 +++$+++ 8520 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. So if you were to say the tribe does not have a possessory right, they can't go in and eject all the people who are living there and built houses over the last 192 years. That doesn't mean still that you could tax them.
03-855 +++$+++ 8521 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But your hypothetical, Your Honor, presupposed the existence of the reservation and presupposed a possessory right subject to lease. The possessory right here did not exist because the Oneida Indian nation had no rights with respect to the land at all in 1997. Those rights could not be enforced. And for the right not to be --
03-855 +++$+++ 8522 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, they couldn't be enforced against certain innocent purchasers but when the land is reacquired, then it seems to me we have to ask whether there was an extinction of aboriginal title and whether the reservation was at some point subsequently disestablished by federal act. And if we hold against you on the ground that there was no extinction of aboriginal title and there was no disestablishment of the reservation, then it seems to me that when they reacquire, we get to exactly the point that Justice Breyer raises and that is, once they reacquire the land, why does it become taxable? Why does its nontaxable status not simply reassert itself?
03-855 +++$+++ 8523 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that you have to look at the definition of Indian country. If you look at the definition of Indian country, it requires, with respect to the properties we're talking about, federal set-aside and federal superintendence.
03-855 +++$+++ 8524 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you're saying if the original establishment of the reservation was simply a continuation, was literally a reservation from a transfer of land to the State of New York and that the Indian title was a purely aboriginal title, not a title conferred by a federal act creating a reservation, that it cannot be Indian country, is that correct?
03-855 +++$+++ 8525 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If I understand the question that you asked, Your Honor, if the title came from the State of New York, for example, in the --
03-855 +++$+++ 8526 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let's assume the title is aboriginal. Nothing in an act of the United States says we're giving this land to the Indians, e.g., in the Kansas situation. It's simply aboriginal title and it was never extinguished. Are you saying that if that is the source of the title as opposed to a federal act saying we give this to you, that it cannot be Indian country?
03-855 +++$+++ 8527 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
03-855 +++$+++ 8528 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
03-855 +++$+++ 8529 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. In a situation where there was continuing aboriginal title, similar to the Senecas in the State of New York where New York State did not terminate the aboriginal rights of the Senecas, there need not be congressional act, there need not be congressional or treaty action to establish the reservation.
03-855 +++$+++ 8530 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So this part of your argument depends on our accepting your position on the Treaty of Fort Schuyler as being a conveyance of all property and a later retrocession, is that correct?
03-855 +++$+++ 8531 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor
03-855 +++$+++ 8532 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because otherwise, I don't see what extinguished the aboriginal title.
03-855 +++$+++ 8533 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What extinguished the aboriginal title with respect to this aspect of the argument, and then I will move on to the Treaty of Fort Schuyler and the Treaty of Canandaigua. What extinguished the aboriginal title is the passage of time and the fact that this land has been under state and local jurisdiction for 190 years and this Court observed, in Hagen and Rosebud Sioux, and I acknowledge it was in a different context, but this is important, that stable rules of jurisdiction and sovereignty are important in situations like this where what we're dealing with is very few -- 1 percent of the land in the City of Sherrill is owned by the tribe. The land is predominantly non-Indian. And as this Court observed in Hagen and Rosebud Sioux, a finding that the land now comes back into tribal jurisdiction, to paraphrase, seriously disrupts the justifiable expectations of the community and that's not just a hypothetical in this case.
03-855 +++$+++ 8534 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know that, but I mean, then it seems to me if one thing that Oneida establishes is that the whole title doesn't just disappear if nothing else happens, simply because of the passage of time.
03-855 +++$+++ 8535 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think what disappears, Your Honor
03-855 +++$+++ 8536 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is what?
03-855 +++$+++ 8537 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- is the right to possess.
03-855 +++$+++ 8538 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now we agree with that or I'll hypothetically agree with that. They can't come in and eject people. But then I'm back to my first question, because I take it that the refusal in Oneida to the suggestion that they can't go, say, to Buffalo, New York, or wherever, or some town and throw everybody out of the house, that that, of course, does reflect the passage of time. But for a city or State to tax the land, that doesn't involve the same kind of interference with people's expectation of living in the houses that they bought, that throwing someone out of his house would involve.
03-855 +++$+++ 8539 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Here's what impacts the expectations. What impacts the expectations is the following. I'll give you an example that appears from the joint appendix on the Court of Appeals from pages 1263 to 1277. In the year 2000, the City of Oneida cited two Oneida Indian Nation businesses, a convenience store and a gas station, for 16 fire code violations. The tribe citing this Court's decision in Brendale said, we're not governed by the local fire code. We're governed by tribal jurisdiction. It's more than just the interference, the issue of taxation, the issue of sovereignty is whether a gas station is going to blow up or burn down --
03-855 +++$+++ 8540 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It is a matter, is it not, of whether the tribe now has sovereignty over this parcel of land? Is that's what's at the bottom of the question?
03-855 +++$+++ 8541 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think in terms of the problems for the citizens of the City of Sherrill, taxation is part of it, and sovereignty is part of it, and they go hand in hand.
03-855 +++$+++ 8542 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If the tribe has sovereign -- sovereignty status with regard to this property, then presumably the city can't tax it. So we have to decide that, do we?
03-855 +++$+++ 8543 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, you do, Your Honor.
03-855 +++$+++ 8544 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Now what do we do with the Oneida II case decided in 1985?
03-855 +++$+++ 8545 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This, the position we're taking here is fully consistent with Oneida II. In Oneida II, this Court held that there was a violation of federal common law principally because of a violation of the Nonintercourse -- Indian Trade and Intercourse Act in 1795. This Court wasn't asked to deal with, at that time, with the Treaty of Fort Schuyler. It wasn't asked to deal with the Treaty of Buffalo Creek. It wasn't presented with evidence of the numerous authorized New York State treaties in 1840 through 1846 that diminished this reservation, that the State of New York will deal with -- with as amicus --
03-855 +++$+++ 8546 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why not? Why not? Why not? I mean, is every decision we make up for review when the interested parties fail to cite the, what they now assert are the dispositive acts?
03-855 +++$+++ 8547 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. I think that principles of stare decisis still govern and I think what, and this is consistent with the position that we have taken with respect to the passage of time extinguishing the possessory right, is what this Court for stare decisis purposes found in Oneida II was that there was a violation of federal common law with respect to a transfer that was very different than this transfer, without any examination of the Treaty of Buffalo Creek and without any examination of the Treaty of Fort Schuyler.
03-855 +++$+++ 8548 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there wouldn't have been a violation of federal law if this were not Indian country, if this were not an Oneida reservation when the transfer occurred.
03-855 +++$+++ 8549 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, that might or might not be correct, depending on how one views the scope of the Nonintercourse Act. But if one views the scope of the Nonintercourse Act to apply to Indian reservations, even state reservations, as the Second Circuit in Mohican Tribe has held, then the Treaty of Fort Schuyler could have terminated all aboriginal title; The Treaty of Fort Schuyler could have established a state reservation for the Oneidas; and the Nonintercourse Act of 1790, two years later, could have prohibited the sale of those lands even though it was a state reservation and under state jurisdiction.
03-855 +++$+++ 8550 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that the application of the Nonintercourse Act? I assume it applied only to federal act reservations.
03-855 +++$+++ 8551 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this Court has not dealt with that issue and from our purposes --
03-855 +++$+++ 8552 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How does it read? What does it say?
03-855 +++$+++ 8553 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Nonintercourse Act
03-855 +++$+++ 8554 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I didn't mean to interrupt you.
03-855 +++$+++ 8555 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Nonintercourse Act in effect at the time prohibited the purchase made -- prohibited the purchase of lands from Indians or Indian tribes, to paraphrase. And that would have, and what hasn't --
03-855 +++$+++ 8556 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Unless made by treaty or convention entered into pursuant to the Constitution.
03-855 +++$+++ 8557 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes , unless -- unless -- unless subject to federal approval.
03-855 +++$+++ 8558 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ An idea of precisely what's at stake within the Oneida litigation, as I understand it, the counties and the municipalities, the City of Sherrill would not be left in the end having to pay; New York would.
03-855 +++$+++ 8559 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The City of Sherrill is not a party in the land claim litigation. The land claim litigation --
03-855 +++$+++ 8560 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, from the county's point of view, I'm asking who pays at the end of the line. And it seems, in the Oneida cases, it's the State. Is it different here? And what taxes are we talking about precisely?
03-855 +++$+++ 8561 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What we are talking about -- to answer the first portion of your question, Justice Ginsburg, I think ultimately the citizens of the State of New York pay but it is, the judgment would be against either the State of New York or the against the counties in the land claim. In this case --.
03-855 +++$+++ 8562 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What goes with the taxes? You've said that the other effect will be that whenever the Oneidas buy a piece of property that is within this former reservation, and of which only 1 percent is now owned by Indians, whenever they buy a piece of property, that property is taken off the tax rolls.
03-855 +++$+++ 8563 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct, Your Honor.
03-855 +++$+++ 8564 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which, of course, makes it a lot easier for them to buy it because it's much less expensive for them to hold that land. What else happens? The --
03-855 +++$+++ 8565 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What else happens is that
03-855 +++$+++ 8566 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The town can't regulate.
03-855 +++$+++ 8567 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The town can't regulate it and if they are running a business on it, and we believe this is contrary to state law, but if they are running a business on it they're not collecting sales taxes.
03-855 +++$+++ 8568 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I assume it also means that that land cannot be repurchased by non-Indians?
03-855 +++$+++ 8569 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The tribe has changed its position on that, I believe, in the course of the last 30 years but that is their current position. That it becomes subject to the Nonintercourse Act consistent with their position. With the Court's permission, I want to, I do want turn to the 1788 Treaty of Fort Schuyler and, time permitting, the 1794 Treaty of Canandiagua. Our position on the treaty of Fort Schuyler I think is very plain in our papers and I just want to highlight what's in the rest of the treaty after Article 1, which is a cessionable land. What's in the rest of the treaty is that New York reserved numerous rights even with respect to the reservation's land. New York had, among other things, the right to make and apply laws to the reservation, to enforce the treaty -- and I'm quoting from Article 4 -- in such manner as the State shall deem proper. New York had the right to enforce its criminal laws with respect to intruders on the reservation that New York granted to the Oneidas obtaining the assistance of the Oneidas to do so. New York, in the treaty, prohibited the Oneidas from selling the lands. New York, in the treaty, prohibited the Oneidas from certain length of leases and New York had the right to enact laws with respect to the leases that were permitted to enforce the leases. The other thing that one needs to look at in the context of the times, when looking at how would the Oneidas have understood this, the tribes of the Iroquois Confederacy, knew how to preserve their aboriginal title when they wanted to do so and the Oneidas didn't do that. In the 1797 Big Tree agreement with the Senecas which is published at 7 Statutes at Large, 601, the Senecas sold much of their lands through Robert Morris under the approval of the United States. In the agreement, the agreement provided that the reserved lands were, and I quote, "clearly and fully understood to remain the property of the Senecas in as full and ample matter as if these presents had not been executed." That is the way an Indian tribe understood preserving aboriginal title. That didn't happen in the Treaty of Fort Schuyler.
03-855 +++$+++ 8570 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're a good lawyer that they hired, and the Oneidas may not have had as good a lawyer. I don't think this was done around the campfire, do you?
03-855 +++$+++ 8571 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sure it was not, Your Honor. The other thing that one has to look at at the time is what New York State was doing. New York State entered into three similar treaties at the time. One with the Oneidas, one with the Cayuga and one with the Onondaga. Those three treaties all terminated aboriginal title in the first provision. The other three tribes of the Iroquois were not of concern.
03-855 +++$+++ 8572 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ When you say terminated the title, you mean by the conveyance of all lands?
03-855 +++$+++ 8573 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, they had the exact same language in Article 1. The structure of the treaties were identical. The other three tribes of the Iroquois were not of concern to New York State in 1788 because the Mohawks had mostly removed to Canada, the Tuscaroras had no land of their own and the Senecas were in the portion of New York State where Massachusetts had the preemption right. So if you look at what is happening back in 1788 and early 1789, New York State is setting up a State treaty with the Oneidas and keeping jurisdiction over those lands. Now, to go back to what you asked earlier, Justice Scalia, no question that if in that context, the Federal Government then passed a statute that says, as it may, the Oneidas can't sell this land without federal approval. That's a violation of the Nonintercourse Act, but it doesn't change the fundamental nature of the land as being under state jurisdiction, and has been under state jurisdiction since 1788.
03-855 +++$+++ 8574 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was there ever any federal superintendence of the land?
03-855 +++$+++ 8575 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If you count an agent going on the land, there was an agent on the land, but what has happened with this land in terms of federal superintendence is that this land has been superintended, and supervised whether in tribal hands or otherwise, by the State of New York and local governments since 1788. There is a reference in our papers to a report, it was issued in connection with the New York State setting up their troopers to cover the reservations, and that report acknowledged that the United States Government appreciated the fact that the State of New York had been keeping peace on the reservations with their police and saw no reason to interfere with over 100 years -- and this was in the early 20th century -- of over 100 years of state police supervision.
03-855 +++$+++ 8576 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It isn't the FBI that keeps peace on other reservations, is it? Isn't it quite standard for state law enforcement to function?
03-855 +++$+++ 8577 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sorry I see my light is on.
03-855 +++$+++ 8578 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can he answer that?
03-855 +++$+++ 8579 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, go ahead and answer the question.
03-855 +++$+++ 8580 +++$+++ TRUE +++$+++ MR. SACKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The level of -- yes, Your Honor. It is, the FBI doesn't do it, States often do it. They do it sometimes with the permission but this happened for 200 years.
03-855 +++$+++ 8581 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Sacks. Ms. Halligan.
03-855 +++$+++ 8583 +++$+++ FALSE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: The State of New York was granted time to address the third question presented regarding the 1838 treaty which we believe requires reversal of the decision below because it disestablishes the Oneida reservation. Respondents claim that they can now exercise sovereignty over any plot of land they buy within a vast 300,000 acre tract in Central New York that has long been inhabited almost entirely --
03-855 +++$+++ 8584 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is sovereignty something that the tribe can lose by inaction over a period of time?
03-855 +++$+++ 8585 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that it is, Your Honor, for the reasons that are laid out in petitioner's brief, but regardless of what the Court decides about that question, the Treaty of 1838 clearly disestablishes the reservation, which terminates all sovereignty prospectively. The language in the historical context --
03-855 +++$+++ 8586 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The Buffal Creek --
03-855 +++$+++ 8587 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-855 +++$+++ 8588 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Treaty.
03-855 +++$+++ 8589 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, the Treaty of Buffalo Creek. It makes clear both the language of the treaty itself as well as its historical context that it was intended to terminate Oneida sovereignty in New York State.
03-855 +++$+++ 8590 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What you seem to be asking is to infer from that treaty that the prior unlawful land sales of the Oneida's New York reservation were somehow ratified.
03-855 +++$+++ 8591 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, ratification is not presented squarely in this case. The only question that's at issue in this case is whether or not, regardless of whether the transactions that took place between 1795 and 1838 were legal or illegal, and we've argued that they're legal in other cases --
03-855 +++$+++ 8592 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if you're right about Buffalo Creek, it would mean that the effect of the Government's decision to repossess something in Kansas was to leave the Oneidas without any land.
03-855 +++$+++ 8593 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, at that point the Oneidas --
03-855 +++$+++ 8594 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It certainly wasn't that clear from it. It appeared to be the assumption that the Oneidas did not have to go to Kansas, if they chose not to do it. It was dependent on making suitable arrangements.
03-855 +++$+++ 8595 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With regard to the 5,000 acres that they occupied as of 1838, one could read Ransom Gillett's assurances to the Oneidas as allowing them to continue to retain occupancy over that narrow slice of land, but what that cannot do is change the language of the treaty which makes clear that the reservation is otherwise entirely disestablished. And if I can refer to some of the language of the treaty itself, first of all, the treaty explicitly states that its purpose was to carry out the Government's policy in removing the Indians from the east to the west of the Mississippi. That simply cannot be squared with ongoing sovereignty over the remaining 295,000 acres which they now claim --
03-855 +++$+++ 8596 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Sure it can. I mean, one way to pursue that policy is to offer them lands in the west if they want to go there. That would certainly pursue the Government's policy of removing them.
03-855 +++$+++ 8597 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court held that in New York Indians that Article 13 of the treaty which provides that the Oneidas agree to remove was sufficient to effect a present grant of the Kansas lands and to avoid any forfeiture. So it was much more than an agreement to agree or an offer, if you will. But --
03-855 +++$+++ 8598 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you're saying there is no consideration. If, they simply agree to remove if they -- if they want to remove.
03-855 +++$+++ 8599 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, they did receive, they did receive consideration and the Court made sure that that was --
03-855 +++$+++ 8600 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, they gave none, I'm talking about.
03-855 +++$+++ 8601 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Who gave none, Your Honor?
03-855 +++$+++ 8602 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The Indians. You're saying they gave no promise in exchange, if they simply promised to remove if they felt like it.
03-855 +++$+++ 8603 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor; I'm saying that --.
03-855 +++$+++ 8604 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm trying to help you here. [Laughter.]
03-855 +++$+++ 8605 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, then in that case, I suppose I should agree. My apologies. But what they did was to agree to remove, and in fact, that's what happened. If you look at what transpired immediately following the treaty, by 1846, all but 350 acres, down from 5,000, have been sold by the Oneidas and very few remain. By 1920, there are only 32 acres. And the U.S.'s activities in the area also confirm that that was the understanding of the treaty, that it terminated sovereignty. There are some very sparse references in the records to some exercise of jurisdiction by the U.S. starting around the turn of the century, around the early 1900s, but those only relate to the 32 acres that remained occupied by the Oneidas. There is no indication of any exercise of U.S. jurisdiction over the remaining 295,000 acres.
03-855 +++$+++ 8606 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought that perhaps the Treaty of Buffalo Creek is thinking of 50,000 acres where these particular Indian tribe members had their homes, or at least arguably. Just no one was thinking about the remaining 300,000 because they had long left those. It had nothing to do with them.
03-855 +++$+++ 8607 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe the text and the historical background suggests otherwise, Your Honor. Article 4 of the treaty says that the Kansas lands will be the new homes of the Oneidas and it also explains where the Oneidas can exercise sovereignty. It says that it will secure to the Oneidas in the Kansas lands, in said country, which refers to the Kansas lands, the right to establish their own form of government, to appoint their own officers and to administer their own laws. That means that sovereignty is to be in Kansas, not to be in New York.
03-855 +++$+++ 8608 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, It means that that's what was intended but what do you make of all of the testimony about the representations made by -- I forget the man's name
03-855 +++$+++ 8609 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Gillett.
03-855 +++$+++ 8610 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the government's representative, to the effect you don't have to leave New York.
03-855 +++$+++ 8611 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That related only to the 5,000 acres that they occupied at that time. The record isn't very clear about why he made that assurance.
03-855 +++$+++ 8612 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but my, I guess, let me just get to the point and you can answer that.
03-855 +++$+++ 8613 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes Your Honor, sorry.
03-855 +++$+++ 8614 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Doesn't that negate your argument that the treaty as such disestablished the reservation?
03-855 +++$+++ 8615 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, it doesn't. The treaty on its terms appears to disestablish the reservation entirely. Gillett's statement could perhaps be read as a subsequent gloss on that treaty to assure the Indians that they won't be forced off their land, the 5,000 acres that they continue to occupy, perhaps because since New York was not a party to the treaty, there couldn't be any explicit session language in the treaty. New York was the only entity that had a right to buy that remaining 5,000 acres because it held the right of preemption. So it may have been that the Oneidas wanted to ensure that they could reach reasonable terms. And they did. They sold almost all of that land within the following six years after proclamation of the treaty. So the contemporaneous history squares with that. It's very similar to what happened in Santa Fe, in which this Court said there was a reservation that was created for the Santa Fes, there was some indication of acceptance of that reservation, and that acceptance was sufficient to terminate the tribe's sovereignty over any lands outside of the reservation that was provided to them, even though many of them did not in fact remove to that land. Here the Oneidas received much more. Not only did many of them sell the lands and leave immediately but they received the benefit of their bargain by recovering compensation for the Kansas lands from this Court in New York Indians.
03-855 +++$+++ 8616 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is the precise language that you think relinquished, changed the sovereignty that -- changed the sovereignty?
03-855 +++$+++ 8617 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think there are several provisions, Your Honor. First of all, in the recitals, it states that the purpose of the treaty is to carry out the Government's policy in removing the Indians from the east to the west of the Mississippi. Article 2 also notes that the Kansas lands will be a permanent home for all Indians now residing in the State of New York as well as elsewhere, and Article 4 states that there will be an exercise of sovereignty. It says specifically that will they will be able to establish their own form of government, appoint their officers and administer their laws in the Kansas land specifically. So I think those are the strongest provisions. I would also like to touch for a moment if I can on a question that several members of the Court have raised which is what is the impact of this decision here. From the perspective of the State of New York and the localities, it's very serious because it does concern whether or not the tribe can unilaterally regain sovereignty over a very large tract of land in central New York. This is an area that has been --
03-855 +++$+++ 8618 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, there are implications from Oneida II case that the Indians can reacquire land and assert some kind of possessory right.
03-855 +++$+++ 8619 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With regard to a narrower swath of land than what's at issue here. And in any event, the Court expressly did not pronounce on the effect of the Buffalo Creek treaty here. If that's the case, what could well result is a patchwork quilt of jurisdiction which this Court has said poses tremendous governance problems. It's governance by tract book. This is not just hypothetical. There are already difficulties that have started to arise as a result of the Second Circuit's decision. For example, another tribe relying on the decision here purchased land within its original land claim area that's just 300 yards from a local high school and have begun operation of a gaming hall there. The locality attempted to enjoin operation of the gaming hall, but was unable to do so in light of the Second Circuit's decision below. We anticipate there are will be many other problems of that sort that will arise. The residents of the area here have long settled and justifiable expectations. The settlement patterns are clear here. The absence of any exercise of U.S. jurisdiction outside a very small plot of land is not controverted. These are factors that this Court has repeatedly held in cases like Hagen and Yankton Sioux are relevant to the question of both what the contemporaneous understanding of the treaty was and what the result should be today, and we submit that they should lead to the same result here as well. If there are no further questions --
03-855 +++$+++ 8620 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Ms. Halligan. Mr. Smith, we'll hear from you, please.
03-855 +++$+++ 8622 +++$+++ FALSE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: There was a suggestion in answer to an earlier question that the Oneidas have changed their position about whether the land is alienable when in their hands. That's not correct. There is nothing in the record to suggest that. What the record does suggest at page 213 of the joint appendix is that Sherrill has changed its position. It wanted an easement on Oneida land in 1997 and at that page of the appendix, you will see that Sherrill went to the Department of the Interior for Federal approval of the easement under Federal law, understanding at the time the Oneida's position and the Federal law principle that the land wasn't subject even to an easement absent the Secretary's approval.
03-855 +++$+++ 8623 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you're saying your position was and is that it's not inalienable without the approval of the feds?
03-855 +++$+++ 8624 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. And the land, when the Oneida's possession of the land, actual possession is unified with their underlying Federal property and treaty rights, the land is inalienable and cannot be sold today out of the Oneida's possession any more than it could 200 years ago.
03-855 +++$+++ 8625 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it, the portion within the reservation you claim is alienable so long as it's not owned by an Oneida. The current owners can sell it to somebody else, right?
03-855 +++$+++ 8626 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the point of Oneida II -- the answer is yes. The answer is yes.
03-855 +++$+++ 8627 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes or -- Does that strike you as strange?
03-855 +++$+++ 8628 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. It's, there is an unusual twist to it, and it arises from the fact that there were illegal transfers 200 years ago. There was a suggestion in the Oneida II decision and it has been followed by the lower Federal courts that there may be equitable principles that constrain remedies in a course of order to be entered in a land claim action brought by a tribe that is out of possession, but the equitable principles that are at stake here are very different and they don't involve the same --
03-855 +++$+++ 8629 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if you prevail in this case, then could suits be brought by the tribe to evict current owners of land on the historical Oneida 300,000-acre reservation?
03-855 +++$+++ 8630 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice O'Connor. The Courts have ruled that we may not do that and it is the position and I will say it clearly here today that the Oneidas do not assert a right to evict landowners in the land claim area. Judge McKern who handled --
03-855 +++$+++ 8631 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if it's owned by the State of New York, if it's been acquired somehow by the State, then what?
03-855 +++$+++ 8632 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We are not asserting a right to evict. We are not waiving any of the underlying rights that involve right to possession under Federal law and aboriginal rights and the point I'm making should not be construed that way. What I'm saying is that we are not asking a Court and do not expect a Court to evict anyone from action -- from land that is not in our actual possession.
03-855 +++$+++ 8633 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What happens about -- suppose -- I just want to follow this. You don't evict the people who are there but it's 22 square miles in the center of New York State. That's a lot of land. And maybe that's worth a trillion dollars, I don't know. So does that mean that the Indian tribe would have -- would it mean that it had the right to, let's say, hundreds of billions of dollars, the value of that property, that it could sue someone for it, the State of New York or the Federal Government? I guess the State of New York?
03-855 +++$+++ 8634 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me give you a concrete answer. The key to the land claim is approximately one quarter the size of the Oneida land claim and it has gone to judgment and is on appeal in the Second Circuit. The judgment in that case after adjustments for interest and so on was $250 million and it was rendered against the State of New York only as the initial and continuing --
03-855 +++$+++ 8635 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What was the acreage there?
03-855 +++$+++ 8636 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Approximately one fourth -- the answer is 64,000 acres.
03-855 +++$+++ 8637 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that may not be worth as much. Maybe this includes several cities and towns? What do you think it is? I mean in other words, the answer to my question is in principle, yes. In principle, if the Indian tribe owns 22 square miles, even if they can't get possession, they're entitled to the value of it, in your opinion?
03-855 +++$+++ 8638 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. The point of Oneida II is that a damages remedy is appropriate as to a tribe out of possession, but there is no suggestion that that is a judicial sale of the underlying federally protected treaty rights --
03-855 +++$+++ 8639 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no, of course the people who are there have it, but maybe it's not Buffalo. I don't know, maybe it's all of Buffalo, New York, or maybe it's a town. I'm not saying that that's the law but I just wanted your view of that. And then I wanted to know this, that on the legal part, I would like your response to the -- I take it your answer is yes, they're entitled to the value of it. I'm right about that, that is your answer?
03-855 +++$+++ 8640 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. Well, they're entitled to two items of value. They're entitled to retrospective damages for trespass, and in that the Court has not --
03-855 +++$+++ 8641 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On the whole 300,000?
03-855 +++$+++ 8642 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there is one parcel part of it that we have not sued upon because there was a 1798 Federal treaty that validated the transfer. The State, which feels that it was not bound by the Nonintercourse Act, twice went to the Federal Government for formal Federal treaty approval of these transactions. One of them went through. That was 1798. The other one was 1802. The President did not proclaim it and the State never went back to the Federal Government.
03-855 +++$+++ 8643 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do the, would the Oneidas have a claim to tax the current property owners?
03-855 +++$+++ 8644 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, sir.
03-855 +++$+++ 8645 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why not?
03-855 +++$+++ 8646 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The decisions of the Court in cases like Atkinson and Montana address the lack of power of a tribe with respect to non-Indian fee lands within a reservation. I recognize that there is an added wrinkle here in that the Oneida's rights persist in that land, even though it is out of their possession and that wouldn't have the same -- that wouldn't have been true in Atkinson and Montana, but in that the Courts have held that the possession of the non-Indians is lawful in the sense that it will not be interrupted and the land title can be passed in subsequent transfers, we accept the proposition that Montana and Atkinson would prevent the Oneidas from regulating in any respect, let alone taxing, any of the land in the possession of non-Indians.
03-855 +++$+++ 8647 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Smith, isn't there any principle of laches that comes into effect here? I mean, really what you're asking the Court to do is to sanction a very odd checkerboard system of jurisdiction in the middle of New York State. Some parcels, the ones the Indians choose to buy and are able to buy, become Indian territory and everything else is governed by New York State. This is just a terrible situation as far as governance is concerned and part of the blame for the situation we're in is that the Oneidas did not complain about this for 170 years.
03-855 +++$+++ 8648 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The issues of laches in time is not within the questions presented in this case, notwithstanding that it has been identified in earlier decisions and was actually raised by the counties in this Court the last go-around. Laches does not bar this claim. These were illegal transactions declared by Federal statute to be of no validity in law or equity. The Oneida II decision which holds that background principles of Federal law which would ordinarily incorporate state statutes of limitation don't apply because their intention with the underlying rule that only Congress can impair or extinguish this right. Those same --
03-855 +++$+++ 8649 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The case also held that because of the passage of time and the reliance interests that have developed, we are not going to give you possession. Now, why doesn't the same principle apply to giving you jurisdiction? Because of the passage of time, you can get damages for trespass. Maybe even you can get the value of the land. But it would just create a chaotic situation if we say that you have jurisdiction in the middle of New York State over any pieces of land that you can buy.
03-855 +++$+++ 8650 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The equitable principles that would inform remedy in an action brought by a tribe out of possession don't apply when the tribe is in possession or else there has been a judicial extinguishment of an underlying right that's only within the power of Congress to extinguish. The Court has been clear that the treaty right here -- we have a Federal treaty and it says you have the free use and enjoyment of the land. In the New York Indians I, the Court said that means similar, the same promise made to the Senecas means that the land cannot be taxed. The argument has been made that the Oneida's only rights are to be paid off now, to be in effect have the un-extinguished Federal aboriginal right and the un-extinguished treaty right purchased. Those rights through literally 200 years of decisions are within the sole control of Congress. Oneida II made pains to say that this was an unusual situation fraught with some tension and problems, but those problems were for Congress. There are a dozen cases from this Court that deal --
03-855 +++$+++ 8651 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Excuse me, Mr. Smith, first, would you clarify how much land is now claimed as Indian -- within the tribe's aboriginal right? It's not -- well, for one thing clarify while you are not claiming the entire 6 million. Didn't they have 6 million acres to start with?
03-855 +++$+++ 8652 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They did. The matter was litigated in the Second Circuit and resolved adversely to the Oneidas, but I would take the position that the Treaty of Canandaigua actually confirms the transfer of land outside of the retained reservation, so that the land that we are talking about today as retaining the Oneida's rights is I think approximately 270,000 acres.
03-855 +++$+++ 8653 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But some of that you said was taken out by an approved transfer in 1798?
03-855 +++$+++ 8654 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, and that's why I'm not saying 300,000 acres. I can't do the arithmetic and I don't have the final survey --
03-855 +++$+++ 8655 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But something around 275?
03-855 +++$+++ 8656 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Around 270.
03-855 +++$+++ 8657 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the figure, the 250 million is for the rental -- what is that -- what is that for?
03-855 +++$+++ 8658 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the Cayuga case, there were two elements of damages. One was retrospective, and that was rental damages for past trespass. The other was a current value, because Judge McKern said that he would not evict anyone, and that he thought a suitable alternative to eviction was the award of value, because it would put the tribe in a position through a free-market and voluntary relationship with purchasers to, quote, "restore its homeland." Judge McKern got really to the heart of this process by recognizing that there are inequities all around, if you will, and that the Court is without the power to extinguish the underlying rights. It's Congress's role, but that there needs to be a sensible way of recognizing those rights today. And what Judge McKern decided is that damages would put the tribe in a position to do what the Oneidas have done with respect to the land that's at issue here before the Court, and that's to make, you know, a fair-and-square deal and pay full value.
03-855 +++$+++ 8659 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which New York State paid, and that's the end of it.
03-855 +++$+++ 8660 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. If I understand your question, the answer is yes.
03-855 +++$+++ 8661 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's not the end of it. From what you're saying, I gather that you believe, in that case, once they purchase the land, it becomes tribal.
03-855 +++$+++ 8662 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. I mean that's the end of that litigation. There is a judgment, it's gone to the Court of Appeals, and it's there now. The issue of damages remedies when the tribe is out of possession is simply conceptually and fundamentally different than the question of what happens when the tribe has joined possession --
03-855 +++$+++ 8663 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you say on the merits, then, to the claim that there were 300,000 of these acres in 1838 or with the Treaty of Buffalo Creek -- there were 300,000 acres that nobody was paying any attention to because there were no tribe members that lived there, so that when you have language in the treaty, under those circumstances, that says their home is now -- where was it? Illinois or --
03-855 +++$+++ 8664 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Kansas.
03-855 +++$+++ 8665 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Kansas. Their home is now in Kansas. That's the nation. That's the place. And that -- you've heard the language cited. And even though a person says, "You can live here as long as you want," that just means they can live there as long as they want; that doesn't mean it's the reservation. The reservation's sovereignty may have gone to Kansas, though, of course, nobody had to move, unless he struck a fair bargain that he agreed to with the State of New York. I take it that's their argument. I just want to hear your response.
03-855 +++$+++ 8666 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are a lot of parts to that. Let me respond to what I think is the most fundamental.
03-855 +++$+++ 8667 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
03-855 +++$+++ 8668 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That argument rests on the idea that there was an assumption, at the time of the Treaty of Buffalo Creek, that the prior transfers were valid. It's an argument of ratification by assumption. Oneida II says, in a much more forceful circumstance, that even a later Federal treaty that explicitly refers to the prior session does not ratify it, because the ratifying language has to be clear and express, and you have to believe that both the Indians and the Congress, the United States, meant to do that. Here, the -- if you think about it, in what I just heard concerning Buffalo Creek, there's an interesting asymmetry. We're supposed to assume that the treaty covered all the land, but we're not supposed to conclude that Ransom Gillet's promises covered it all. We're supposed to believe that one, by assumption, extends to the entire reservation and that the other, forceful promises of a Federal treaty commissioner that you need not go anywhere, are actually very limited and carried with them a thought that they were extinguishing rights in other land. That interaction with Ransom Gillet is crucial. The treaty --
03-855 +++$+++ 8669 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would it not be odd to have a -- to give assurance that you could buy back what you've lost? Does it -- would that -- that's a very strange construction of the representations attendant upon Buffalo Creek. I understand what you're talking about with the 5,000 acres.
03-855 +++$+++ 8670 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The representations from the Federal treaty commissioner were not that they could buy it back. The Federal treaty commissioner went to the Oneidas because they would not agree to the treaty. They didn't want to give up their rights. He gave them a piece of paper that was meant to assure them they were not giving up their rights. There was no suggestion in this important interaction that they were bargaining over the loss of other rights. Mille Lacs is directly in point here. Mille Lacs, I think -- well, from Mille Lacs, you can derive the proposition that where the record shows no bargaining over a right, and where the treaty does not refer to the right, the Indians will not be held to have silently yielded their important rights. In the nature of this interaction, you have the suggestion that -- you have a far more important right, in much larger part of the reservation, that persisted as a matter of Federal law. There is nothing about what happened at Buffalo Creek that would suggest that anyone would think they were affecting the Oneida's rights in lands that were not involved in the treaty. Now, the treaty --
03-855 +++$+++ 8671 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Stewart, your time is beginning to come up, and there is one thing we haven't talked about that I would really like to get your view on, and that is the 1788 Treaty -- what was that, Fort Schuyler -- Treaty of Fort Schuyler?
03-855 +++$+++ 8672 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-855 +++$+++ 8673 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- between New York State and the Oneidas. Now, that contained language which said the Oneidas cede and grant all their lands to the people of the State of New York. That was the operative provision. Later on, it -- Article 2 says, "Of the ceded lands" -- the ceded lands, lands that have been ceded -- "a tract described by metes and bounds is reserved to the Oneidas to hold to themselves and their posterity forever." Now, I would normally interpret that to mean that the Oneidas gave up all of their sovereignty over the lands and were given back, by the State of New York, the right over this tract designated by metes and bounds. Now, I'm saying I would normally interpret that, except in a treaty with the Indians. In a treaty with the Indians, you say, "Well" -- and we have cases which have language somewhat like this, and they say, "Well, they really didn't cede the part that they reserved." That may be the case in -- ordinarily. But it seems to me, a basic principle of contract law -- of treaty law, of any law -- that where there is an ambiguous phrase or provision, you interpret it the way the parties themselves have interpreted it. And it seems to me that the subsequent history, after 1788, indicates that the Oneidas believed that New York State had jurisdiction over that land.
03-855 +++$+++ 8674 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Actually --
03-855 +++$+++ 8675 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The New York State police were in there. New York State managed the lands.
03-855 +++$+++ 8676 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, actually, it's interesting. In the Joint Appendix in the Court of Appeals, at page 413, is the actual document that governed the transfer of this land, the state statute; and in that statute, the State granted its right of preemption to an individual to acquire the land, because it understood that it had not yet exercised its right of preemption. That's, in the conduct of the parties, a direct refutation of the idea that the right of preemption was exercised in the Treaty of Buffalo -- in the Treaty of Fort Schuyler, the 1788 treaty. The most fundamental point, though, about the 1788 treaty is that next came the 1794 Treaty of Canandaigua, which embodied a Federal promise to protect the free use and enjoyment of this land, and the Oneidas' possession of it. And that exact promise -- not sort of, like, but exact -- was held in New York Indians I to prevent taxation of the Senecas' lands. Now, I guess I'd like to make two quick points before I'm out of time. One is that, with respect to the idea that it's just too late, apart from the fact that the question is not presented, I want to emphasize that, in section 2415 of Title 28, Congress explicitly focused on the question of these old claims. And if you read the legislative history, all they talked about was how to deal with the Oneida claim and these old claims. And they not only provided that title claims are not barred by statute of limitations, and established a limitations period that would not have run against the Oneidas because they were on a Federal list, but they did the following, which I think is notable. The statute provides that these claims accrued, in 1966, on the day of the statute, there is no room for background equitable principles in Federal law. Where Congress has specifically focused on a problem, addressed it, the idea is, I suppose, that there is no room to fill gaps here by the Court where Congress has decided just what the gaps are and how to fill them. The other point that I would make concerns the Treaty of Buffalo Creek. The treaty's language leaves it to both sides to decide whether or not Indians are going to Kansas. The legislate -- the history of the treaty shows that the United States backed away from any language which would oblige it to remove Indians, and the language with respect to the Indians left them a choice. But, ultimately, all of that is controlled by what happened. The Federal Government made a decision that no Indians would go to Kansas. The idea that Buffalo Creek extinguished reservations in New York would seem bizarre to anyone in New York today, because the Onondagas have reservations, the Senecas have reservations, the St. Regis have reservations, the Tonawandas have reservations, the Tuscaroras have reservations, and the Oneidas have reservations. It didn't extinguish just the -- there's an idea that you can look at this in a vacuum -- it didn't just extinguish the Oneida reservations. Under the Santa Fe rationale, the point is not that Congress ultimately intended two reservations, although it has done that often -- the Choctaw, the Mississippi Choctaw, the Seminoles. It frequently happened with removal, that there were more than one reservations. But here, you would have to believe that Congress intended no reservation. You would have to believe that Congress quickly came to the decision that none of these Indian tribes in New York actually had a reservation anywhere, and that's not acceptable. Thank you.
03-855 +++$+++ 8677 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Smith. Mr. Stewart?
03-855 +++$+++ 8679 +++$+++ FALSE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: I would like to address, first, the City's argument that the long passage of time renders it improper to give the tribe a tax exemption on lands that have recently been purchased. That argument is wrong for three reasons. First, if we are correct that the tribe had federally protected title as of the 1790s and that that Federal protection was never validly extinguished, then the fact that the tribe was out of possession of the relevant lands for nearly two centuries is, itself, a distinct and substantial legal wrong, and it would be adding insult to injury to say that precisely because the tribe had suffered that initial injury, it should be disentitled to take advantage of a tax exemption that would otherwise flow from its possession of --
03-855 +++$+++ 8680 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't -- I don't understand that argument at all. I mean, it's just a general rule that, where you've been wronged, you have to come forward, in a timely fashion, to get the wrong righted. And what difference does it make what the nature of the wrong is, whether it's dispossession or not?
03-855 +++$+++ 8681 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think it -- I think it's important to distinguish between two different types of delay. What was at issue in Oneida I and Oneida II was delay in bringing the underlying lawsuit. And, even in that context, the Court said that the suit was not barred entirely, but equitable factors might be taken into account in formulating an appropriate remedy. Here, we don't have delay in filing a lawsuit. That is, nobody doubts that the tribes asserted their right to a tax exemption promptly after repurchasing the relevant lands. The argument on the other side is that their delay in purchasing the land should be analogized to --
03-855 +++$+++ 8682 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, do you say that a tribe can never lose its sovereign rights to land? Can it acquiesce in the loss of those rights?
03-855 +++$+++ 8683 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This Court has held that the tribe -- that a tribe may abandon aboriginal title to land.
03-855 +++$+++ 8684 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
03-855 +++$+++ 8685 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not --
03-855 +++$+++ 8686 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, and we have held that a State can abandon sovereignty, as in Massachusetts versus New York.
03-855 +++$+++ 8687 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the Court has also held that once Congress creates a reservation, once it confers explicit federal protection on particular lands, the reservation can be diminished or disestablished only by act of Congress; it can't be terminated through adverse possession. And with respect to the question of whether delay in buying the land should be analogized to delay in bringing a --
03-855 +++$+++ 8688 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that might give them a right to some kind of damages for a violation, but what does that do to the sovereign claims of the tribe?
03-855 +++$+++ 8689 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the -- the reservation would remain a reservation. As Mr. Smith pointed out, with respect to parcels within the reservation that are not owned by Indians, the tribe's regulatory authority is extremely limited and, therefore, the tribe would not be able to exercise anything like plenary regulatory jurisdiction over the whole 270,000 acres.
03-855 +++$+++ 8690 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is it? You said "extremely limited." This is the first that I heard that the tribe might have some authority over part of that, what, the 275- -- the 275,000 acres, even though it hadn't repurchased the parcels.
03-855 +++$+++ 8691 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Court, in Atkinson Trading and in Montana versus United States, before that, had said that the tribe may be able to regulate conduct on non-Indian lands to the extent that the conduct involves voluntary transactions with the tribe or its members or to the extent that the regulation is necessary in order to protect the tribe's sovereign over the land that it possesses is --
03-855 +++$+++ 8692 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But now we're talking about land that -- where there are no tribe members, as I understand it, in this area is predominantly non-tribal members.
03-855 +++$+++ 8693 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree. In -- and Atkinson Trading makes clear that, even when the great bulk of the land is owned by the tribe or its members, the tribe's ability to regulate conduct on the non-Indian parcels is sharply limited. That would be doubly true in a tract of this nature. But to return to the point about the State's reliance interest, I think it's -- or the city's reliance interest -- I think it's important to stress that this case is only about taxation, and a municipality can't claim to have the same sort of reliance interest in being able to tax that a potential defendant in a --
03-855 +++$+++ 8694 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that may be true, but that's why I wondered about the damage part of it. That is, I'm still thinking that a trespass action for trespasses that occurred in 1850 or 1700 is worth millions today, even if it's tiny, because of the interest, passage of time, et cetera. When you add that to the value of the land, I'm thinking of numbers that are astronomical. And yet that hasn't happened. And so, what actually, as a -- and that's why I'm thinking, isn't a damage action far more serious than simply taking property off the tax rolls?
03-855 +++$+++ 8695 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true, but --
03-855 +++$+++ 8696 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that's why I want to know how, in practice, this works out. Does Congress have the power, for example, to deal with it? Is what we're considering in this case simply a negotiating position and strengthening people's hands, vis a vis legislation? What's going on?
03-855 +++$+++ 8697 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Congress does have the power to deal with it. And at the end of the Court's opinion in Oneida II, the Court expressed confidence that, up to this point, has not been borne out, that Congress would fix the problem.
03-855 +++$+++ 8698 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, Congress has done nothing about this, has it? Can -- has the tribe asked, administratively, for the Bureau of Indians Affairs to recognize it now as a tribe?
03-855 +++$+++ 8699 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the Bureau of Indian Affairs has recognized the tribe all along. That is, under the Treaty of Canandaigua, the Federal Government was required to pay annuities and treaty cloth to the Six Nations, and the Federal Government has done that continuously since the beginning. So we've always recognized this to be a tribe. And I think you're -- you've put your finger on an important point, Justice Breyer, in that the Court, in Oneida II, said that it hoped that Congress would fix the problem, and thought that it would, but said even if Congress doesn't legislate a solution, the suit can go forward. The Court contemplated that equitable considerations could be taken into account in formulating a remedy, but it certainly didn't contemplate that the tribe, at the end of the day, would be left without any remedy at all. And, as you point out, if the tribe can sue for damages, it seems farfetched to think that it wouldn't be able to reassert the tax immunity that --
03-855 +++$+++ 8700 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What tax -- what taxes are we talking about? In addition to property tax, are we also talking about sales tax?
03-855 +++$+++ 8701 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, the Court has said -- the Court has said, as a general matter, as a matter of Federal law, a tribal merchant on tribal land can be required to collect sales taxes from non-Indians, at least for the purchase of goods that were manufactured off the reservation.
03-855 +++$+++ 8702 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it isn't just taxes we're talking about. It's jurisdiction over these parcels of land. It -- I mean, taxes -- that's just one aspect of saying that this land no longer belongs to New York State.
03-855 +++$+++ 8703 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, taxes are at issue -- are the only thing that's at issue in this case. But I agree that holding this parcel to be a reservation would have implications for regulatory jurisdiction, as well. Now, there isn't a categorical rule of Federal law that says that States and localities absolutely cannot regulate conduct on tribal lands within the reservation. Rather, there is a preemption test -- there's certainly a thumb on the scale in favor of an exemption from state and local regulation where tribal reservation lands are involved.
03-855 +++$+++ 8704 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Stuart, I have one question about Buffalo Creek. If we hold that Buffalo Creek didn't disestablish the reservation, then doesn't the New York Indian case rest on a false premise because that case gave $2 million for failure to give the Kansas lands?
03-855 +++$+++ 8705 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the Court, in the New York Indians II, recognized, to start with, that the treaty effected an immediate session of the Oneida's Wisconsin lands to the Federal Government, and the Court specifically noted that that cession, in and of itself, would be sufficient consideration to support a contract between private parties. So it simply isn't correct to say that the New York Oneidas gave up nothing other than a promise to remove. The second --
03-855 +++$+++ 8706 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was there any positive indication -- I just don't remember this -- in the New York case, that they would -- that they, in fact, had ceded anything of New -- of their interests in New York? As distinct from the Wisconsin lands?
03-855 +++$+++ 8707 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, there were references to the primary inducement to the Federal Government's entering into the treaty being the desire to --
03-855 +++$+++ 8708 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's entering into the treaty. But when it came to compensation, was there an indication that they were being compensated for anything other than Kansas land, which they had obtained as a result of ceding their Wisconsin land?
03-855 +++$+++ 8709 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. No.
03-855 +++$+++ 8710 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
03-855 +++$+++ 8711 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The compensation was strictly for the Kansas lands that were denied to them. And it's important to note that the Senecas --
03-855 +++$+++ 8712 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there was no indication that they got Kansas for anything other than Wisconsin, is that correct?
03-855 +++$+++ 8713 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They got -- I mean, they didn't -- they weren't held to have promised -- made a commitment to remove from New York. Now, clearly, in analyzing the reasons --
03-855 +++$+++ 8714 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there was no indication that they had ceded anything with respect to title in New York, was there?
03-855 +++$+++ 8715 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
03-855 +++$+++ 8716 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay,
03-855 +++$+++ 8717 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, did it rest upon the cession in Wisconsin?
03-855 +++$+++ 8718 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It rested, in part, upon the cession in Wisconsin. It rested, in part, on a fairly technical argument, to the effect that the grant of Kansas lands was one en presente. That is, it was a present grant of Kansas lands, and, therefore, the New York Indians could be disentitled to those lands only if they had -- a forfeiture had been established. And the Court looked to Article 3 of the treaty to determine the conditions for forfeiture. It said that the Federal Government would have been required to allege a forfeiture by legislative or judicial act, et cetera. The other thing I really wanted to -- the point I wanted to make about the reliance interest of the taxing jurisdiction are that no matter how long a particular tract has been taxable, it is -- may I finish this? -- it is always within the realm of a city's contemplation that it may be bought up tomorrow by the Federal Government, a church, any other tax-exempt entity, and, consequently, the municipality can have no sense of repose that it will remain taxable. Thank you.
03-855 +++$+++ 8719 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Stewart. The case is submitted.
03-8661 +++$+++ 8724 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument in the case of Smith against Massachusetts. Mr. Nathanson.
03-8661 +++$+++ 8726 +++$+++ FALSE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: The trial judge found Melvin Smith not guilty on the merits and unequivocally so. That acquittal entitled Melvin Smith to repose. Instead, what he got was a moving target. The trial judge's later reconsideration of Smith's acquittal placed him in jeopardy for that same offense twice. Smith's position on the matter is completely faithful to this Court's precedent, and it makes sense in the real-world practice of criminal law. The State, on the other hand, asks this Court to make exceptions to the rule, long-held, that acquittals terminate jeopardy.
03-8661 +++$+++ 8727 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. Just to say that this -- what happened here was not a final determination. Take an analog -- an analogy to rule 54(b). The judge can say, yes, I've made this ruling and it sticks. You see, I'm going to give you a separate piece of paper that says judgment, but if I don't give you that separate piece of paper, even though I said judgment granted, it doesn't count until the very end of the case. I can always change my mind. Why shouldn't it operate the same way on the criminal side?
03-8661 +++$+++ 8728 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first of all, obviously, that's a civil case. The Double Jeopardy Clause doesn't apply to civil cases. Second of all -- except with some rare exceptions. What I think the best way to -- to really define finality here -- and -- and whatever finality is, I really do think we -- we do have it here because this Court has said an acquittal under Martin Linen, a resolution, correct or not, of some or all if the factual elements --
03-8661 +++$+++ 8729 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but I looked at Martin Linen, and there, there was something labeled judgment of acquittal entered. Here we have an endorsement on a motion, and then we have an entry by the clerk saying -- what does the entry say? Motion granted or something like that.
03-8661 +++$+++ 8730 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Allowed, and it was attested by the clerk.
03-8661 +++$+++ 8731 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. But is there -- this might be significant. Is there in Massachusetts, when a motion for acquittal is granted and there are other charges still going on, is there a piece of paper that says, judgment, acquitted on count whatever it was?
03-8661 +++$+++ 8732 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. The -- the formal rule, which is not always observed, but the formal rule is that it must be recorded on -- on the docket and announced in an open courtroom. That happened here.
03-8661 +++$+++ 8733 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, suppose you have a State and the State has a statute, and the statute says any motion for acquittal may be granted by the -- the trial court at the close of the prosecution's evidence, but that motion shall not be deemed final and may be reviewed by the district court at any time before -- or by the trial court at any time before the submission of the case to the jury. Then there's no repose element because the -- the defendant is on notice that this may not be final. What would be the -- your position in that case if a statute like that were on the books? And if you say that that's different, then I'll say, well, suppose the supreme court of Massachusetts just makes up this rule as a judicial matter.
03-8661 +++$+++ 8734 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, to answer the first question, I think that if -- if such a statute were enacted, I'm willing to grant, for purposes of this case, that it wouldn't be a double jeopardy problem. It may in a later case -- and you know, I'd be very interested in that -- a problem under a combination of Jackson and Winship because the defendant may have a -- a right to that determination.
03-8661 +++$+++ 8735 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay, well, let -- let's just assume that you've conceded that. Now, you've been guarded about it. If we can do that by statute, why can't we do that by a judicial decision by the supreme court of -- Judicial Court of Massachusetts?
03-8661 +++$+++ 8736 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first of all, the Supreme Judicial Court of Massachusetts is the one who promulgated the rules in this case. Rule 25(a) is promulgated by the Supreme Judicial Court of --
03-8661 +++$+++ 8737 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but they put a gloss on the rule by their decision.
03-8661 +++$+++ 8738 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that was the Massachusetts Appeals Court, I might add. Second of all, the rule itself requires that the motion shall be ruled upon at that time. It says nothing about reconsideration, and clearly --
03-8661 +++$+++ 8739 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They've held that in this case. We have a Massachusetts decision. It's their law and under their law in Massachusetts, the judge can revise it.
03-8661 +++$+++ 8740 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Actually --
03-8661 +++$+++ 8741 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if it isn't their law, then I don't know how -- why they affirmed this conviction rather than reversing it.
03-8661 +++$+++ 8742 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure I know either, Your Honor.
03-8661 +++$+++ 8743 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right, but I mean, I -- I take it that it is their law, otherwise I'd see reversal, wouldn't I, and not affirmance?
03-8661 +++$+++ 8744 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Actually I think what they did --
03-8661 +++$+++ 8745 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What?
03-8661 +++$+++ 8746 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Your Honor, is they assumed that there was an error in -- in -- when dealing strictly with the rule, at the -- at the end of the section dealing with this, they assume that there was an error and said no prejudice, which I've contended in the brief --
03-8661 +++$+++ 8747 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So -- so in other words, they're saying that in this case -- how could there not be prejudice? He had another trial. I mean -- how could -- I don't understand this from beginning to end then. But let me go back to my original question. What rule do you propose?
03-8661 +++$+++ 8748 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As for finality, the rule I propose is, first of all, we have to start with the basic foundation, which is an acquittal, under Martin Linen with a resolution --
03-8661 +++$+++ 8749 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What I'm saying is, for double jeopardy purposes --
03-8661 +++$+++ 8750 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-8661 +++$+++ 8751 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- an acquittal in your view is an acquittal for double jeopardy purposes when?
03-8661 +++$+++ 8752 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's -- there's three things that I think Court should look at. One, first of all, because we treat acquittals from the bench for double jeopardy purposes the same as acquittals from a jury, a prosecutor can poll a jury immediately after the verdict. A prosecutor clearly --
03-8661 +++$+++ 8753 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. I'm asking you for a -- I'd have to write -- if I agreed with you, I'd have to say we have here a judge who changed his mind. Under the clause of the Constitution, a judge cannot change his mind when. Now, go ahead. Now, fill in the blanks.
03-8661 +++$+++ 8754 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-8661 +++$+++ 8755 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ According -- I know what their rule is. Their rule is a judge can change his mind up to the point that the jury is dismissed, something like that. I understand that. Now, I want to know what your rule -- is your rule a judge cannot change his mind once he writes the word acquittal on a piece of paper, even if he says, oh my God, I meant to say no acquittal? Too late. Too late. Okay, now, so I want to know what your rule is. Is that the rule?
03-8661 +++$+++ 8756 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
03-8661 +++$+++ 8757 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay. What is the rule?
03-8661 +++$+++ 8758 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- your first question -- the constitutional point of no return, shall we say, is further proceedings. If there is an acquittal and there are further proceedings --
03-8661 +++$+++ 8759 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There is no further proceeding if he writes the word acquittal, I guess until he changes his mind. So 3 minutes later, he says I change my mind. Now there are further proceedings.
03-8661 +++$+++ 8760 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, then at that point you look to other indicia of finality that this -- this Court referenced that in -- in Vincent, and that -- that's generally compliance with State procedure. Compliance with State procedures --
03-8661 +++$+++ 8761 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I need to write a simple rule. All I'm trying to get from you is what is your rule. Is your rule that when a judge writes the word acquittal -- an acquittal, by the way, happens to mean there's nothing left for the jury to do on that charge. That's what it means. When he writes the word acquittal, he cannot change it. Is that your rule?
03-8661 +++$+++ 8762 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The rule is that the --
03-8661 +++$+++ 8763 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay. And what is your rule?
03-8661 +++$+++ 8764 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The rule is that the judge cannot change it, as a matter of Federal constitutional law, if there are further proceedings. In a multi-count case, count A is acquitted. We initiate further proceedings on count B and C.
03-8661 +++$+++ 8765 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But your answer just isn't responsive. When has it become final?
03-8661 +++$+++ 8766 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It ripens at the --
03-8661 +++$+++ 8767 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ When? When the judge says something, when he writes something? When does it become final? At what point in time?
03-8661 +++$+++ 8768 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What I'm suggesting is --
03-8661 +++$+++ 8769 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is your proposed rule? You haven't said yet.
03-8661 +++$+++ 8770 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What -- what I'm suggesting is -- is two things.
03-8661 +++$+++ 8771 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Just one thing. Just when does it become final? Let's limit it to one thing.
03-8661 +++$+++ 8772 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it becomes final when there are further proceedings initiated.
03-8661 +++$+++ 8773 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Sorry. I don't understand that.
03-8661 +++$+++ 8774 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That doesn't make sense.
03-8661 +++$+++ 8775 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the -- that is the line drawn by most of the lower courts.
03-8661 +++$+++ 8776 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're not understanding my question then. Imagine a case in which a judge writes the word acquittal. Now, half an hour later, he thinks, oh, my God, what have I done. The jury is still sitting there. Of course, they're sitting there because he hasn't had a chance to dismiss them yet. They happened to be having lunch or something. Is it final?
03-8661 +++$+++ 8777 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is not final --
03-8661 +++$+++ 8778 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It is not final.
03-8661 +++$+++ 8779 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- if -- if the defense has not been forced at that point to choose to rest or put on a case. That is the --
03-8661 +++$+++ 8780 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Say that again.
03-8661 +++$+++ 8781 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the defense is forced to rest or put on a case.
03-8661 +++$+++ 8782 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But he wrote the word acquittal. There's nothing more for anybody to do until he changes the word.
03-8661 +++$+++ 8783 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think we're talking about two separate things. Is Your Honor's question presupposing a single-count case or a multi-count?
03-8661 +++$+++ 8784 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let's try single-count. Okay?
03-8661 +++$+++ 8785 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
03-8661 +++$+++ 8786 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There he is. He writes the word acquittal and the jury says, oh, what do we do now? Go home, says the clerk. Now, before they can get out the door or anything else happens, before they get out the door, he says, oh, my God, I made a mistake. Can he do that under your rule?
03-8661 +++$+++ 8787 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not entirely sure of the answer to the question, Your Honor, but I -- I think, first of all, we look at compliance with State procedure.
03-8661 +++$+++ 8788 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay. What I thought from reading your brief, which you're confirming, is your rule -- once the judge says acquittal, that's the end of it. If he decides 3 seconds later, he cannot change his mind. Now, that rule to me is inconsistent with most law.
03-8661 +++$+++ 8789 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If we're talking about a clerical error, Your Honor, the Massachusetts rules and the Federal rules provide for correction of clerical errors. What -- what we're talking about here is not a clerical error, but the judge clearly intended to do what she did.
03-8661 +++$+++ 8790 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, was your client --
03-8661 +++$+++ 8791 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But a very plain error --
03-8661 +++$+++ 8792 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- was your client prejudiced in any way by not putting on some evidence that the -- he would have put on?
03-8661 +++$+++ 8793 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ May I begin, Your Honor --
03-8661 +++$+++ 8794 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Just answer the question for once.
03-8661 +++$+++ 8795 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. There -- there was a defense that he essentially forfeited by not being aware that the judge was going to, at some point --
03-8661 +++$+++ 8796 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that was a terribly risky defense because his main defense is I wasn't there, I didn't do it, somebody else did it. How could he then turn around and say I missed the opportunity to tell the jury I really was there, but it was okay for me to have the gun? I mean, what -- what defense counsel would do that after having spent his whole effort to say it was the other guy, it wasn't this defendant? And then to make this defense that he had a right to possess this gun because he belonged in the house, that would be extraordinary.
03-8661 +++$+++ 8797 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, counsel for co-defendant, Felicia Brown, presented just such a defense and she was acquitted. She presented the defense that Melvin Smith did not shoot Christopher Robinson, but if Melvin --
03-8661 +++$+++ 8798 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Nobody charged her with possessing a gun.
03-8661 +++$+++ 8799 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But what I'm saying is --
03-8661 +++$+++ 8800 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's -- look, there were a lot of charges in this case, and we're dealing with what is a relatively lesser offense of this whole string of events so that Brown being acquitted of other offenses doesn't say anything about this offense, which relates to the possession of a gun. That's -- that's all that it is.
03-8661 +++$+++ 8801 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What I'm saying is that it wasn't risky, Your Honor, because the -- this jury was willing to consider an alternative defense that would have otherwise appeared as a concession. They did not take it as a concession.
03-8661 +++$+++ 8802 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But he would be -- the defendant -- you know, he hasn't gone to the jury yet, and the jury would say, my goodness, this is like a common law pleader. I didn't borrow the kettle. It was broken when I got it. Or, I returned it unbroken. To -- to do that, to say I wasn't there, that's my main defense, but then, jury, I'd like you also to consider that if you think that I was there, then -- it -- it really doesn't fly as a criminal defense.
03-8661 +++$+++ 8803 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd just respectfully disagree, Your Honor. But -- but the -- the larger point is if we allow this rule in general, we are going to engender serious problems. I'm saying that there -- that there was some reliance here, but we're going to engender much more serious problems in other cases where a defendant perhaps presents a defense that is helpful to the remaining charges, but damaging on the acquitted charge.
03-8661 +++$+++ 8804 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but if -- if -- you know, we shape the expectation by what we say. If -- if we say that a judge is always free to consider his ruling and as long as the -- there's a right to reopen, then any kind of reliance is -- is misplaced.
03-8661 +++$+++ 8805 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What Massachusetts law says in -- in the Zavala case, they said that there is not a right to reopen where the judge has determined that the evidence is insufficient. Second of all --
03-8661 +++$+++ 8806 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That is when the case is not ongoing. I mean, here we had a case that was continuing and -- and the judge said, oops, I made a mistake, which is common at the trial level. I mean, these decisions -- she made this decision in a split second. Maybe she was too hasty, and then a trial judge will say, my law clerk went to the library at lunch, there was a Supreme Judicial Court of Massachusetts case going just the other way, so of course, I confess error, but the defendant isn't prejudice. The defendant hadn't put on a -- well, the -- it came up at closing. Right? So if the defendant was prejudice, anyway he could have said, wait a minute, judge, I want to put on that defense that I really was there but I had a right to have the gun.
03-8661 +++$+++ 8807 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He didn't say that, Your Honor.
03-8661 +++$+++ 8808 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But he could have. So he -- so I don't see that you have a realistic claim of prejudice.
03-8661 +++$+++ 8809 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I don't think prejudice is a factor in double jeopardy jurisprudence. Either the defendant has been placed twice in jeopardy or he has not.
03-8661 +++$+++ 8810 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but you have to set a -- a point in time, and your point is -- well, it's not exactly clear, but there's one point that says when the jury is discharged. Then there may be other reasons why there's unfairness to the defendant so that you wouldn't permit it, other than double jeopardy. But if -- why isn't that a sensible place to draw the line?
03-8661 +++$+++ 8811 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because if -- if discharge of the jury is the rule, then the judge can reconsider an acquittal at any point in a defendant's case. 2 weeks into a defense case, the judge could reconsider an acquittal.
03-8661 +++$+++ 8812 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The question -- we're talking about a Federal constitutional rule, and suppose -- you pointed out this went only to an intermediate appellate court. Suppose the Massachusetts Supreme Judicial Court interpreted its rule at 25(a) and it says, that rule allows some leeway for the judge to say I got it wrong as long as there's no prejudice to the defense. That's what our rule means.
03-8661 +++$+++ 8813 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that's permissible, Your Honor. It -- it is -- granted, for purposes of this argument, that it's permissible for States to order judges to withhold rulings, that there shall be no ruling on the sufficiency of the evidence prior to the return of a jury verdict. Louisiana, for example, does that, and I think Oklahoma. But for the Supreme Judicial -- Judicial Court of Massachusetts to say that an acquittal has no force is simply straight contravening what this Court has said. It's -- it's essentially a continuing jeopardy argument.
03-8661 +++$+++ 8814 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you do agree, I take it, that if the judge says, yes, I agree with you, there isn't a scintilla of evidence, and -- and at some point I'm -- I'm going to enter an acquittal, but I'm not going to do it now just in case I have a second thought, but at least by the -- the end of the trial, I'll take care of it, you, I take it, concede that that is permissible.
03-8661 +++$+++ 8815 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that is permissible because --
03-8661 +++$+++ 8816 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if that -- if that's permissible, if you win this case, isn't that going to be the way trials are conducted when -- when there are mid-trial motions like yours? Every judge is going to say, yes, looks as though you -- you got them there, but I'll -- I'll just hold onto this until things are over, and then I'll rule. That's -- that's the way they're all going to respond, isn't it?
03-8661 +++$+++ 8817 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't think so, Your Honor. I think judges are -- are intelligent people. They read the pleadings beforehand. Justice Donovan clearly read the pleading beforehand in this case, and she -- she was prepared to ask for argument on it. I don't think that judges do these things so precipitously that they are not going to be confident in their ruling.
03-8661 +++$+++ 8818 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but every judge knows he drops a catch once in a while, and -- and if he wants to guard against wrecking the whole trial or -- or creating an appellate issue later, he's just going to be cautious and hold onto it.
03-8661 +++$+++ 8819 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And judges should be cautious, Your Honor.
03-8661 +++$+++ 8820 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But isn't it also important to know, though, whether the defendant has to put on a case or not? So he can't just reserve judgment. I'll tell you after the trial is over whether you should put a case on or not.
03-8661 +++$+++ 8821 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that is, in fact, the point, Justice Stevens. The Double Jeopardy Clause is a constitutional policy of finality for the defendant's benefit. He -- that's what this Court said in Jorn. The defendant has to know whether he -- he's defending a case.
03-8661 +++$+++ 8822 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But does -- does --
03-8661 +++$+++ 8823 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Did the defendant here ask to be -- to have the right to reopen?
03-8661 +++$+++ 8824 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He did not.
03-8661 +++$+++ 8825 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask --
03-8661 +++$+++ 8826 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did he --
03-8661 +++$+++ 8827 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you another question here? There -- there were three charges against your client, as I understand it. Unlawful possession of a firearm. That's the one we're talking about.
03-8661 +++$+++ 8828 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-8661 +++$+++ 8829 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Assault with intent to murder.
03-8661 +++$+++ 8830 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-8661 +++$+++ 8831 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Assault and battery by means of a dangerous weapon.
03-8661 +++$+++ 8832 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-8661 +++$+++ 8833 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The jury convicted on all three.
03-8661 +++$+++ 8834 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-8661 +++$+++ 8835 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, he was given concurrent sentences.
03-8661 +++$+++ 8836 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-8661 +++$+++ 8837 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that correct?
03-8661 +++$+++ 8838 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-8661 +++$+++ 8839 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So would you explain to me if there's any practical effect to your winning in this case?
03-8661 +++$+++ 8840 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is a practical effect.
03-8661 +++$+++ 8841 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is it?
03-8661 +++$+++ 8842 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Firearm possession offenses in Massachusetts have restrictions as to parole and good time deductions that the other offenses do not have. So there is a practical effect, aside from the fact that it's a -- it's a conviction on his record, Your Honor. Moving on, Justice Breyer, just to address the question that you were asking me, I think perhaps a good way to phrase it is -- is if the first factual resolution of the elements of -- of the offense results in acquittal, there can be no further proceedings.
03-8661 +++$+++ 8843 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What I was thinking is -- I mean, here a judge -- I guess she was harried in the trial, she's thinking to herself, well, let's see, is there any evidence here that this was less than the shotgun -- this was not a shotgun. You know, it had to be a barrel less than 16 inches. So is there any evidence here of the shotgun? And she, I guess, forgot that there was a lot of evidence that it was a pistol. Now, there aren't many pistols that are 16 inches long. So she's thinking, something may be missing here. She's a little uncertain, but she writes acquittal, and then a few minutes later, she thinks, let's say, oh, my God, there was all that evidence about the pistol. So I shouldn't have done that. I mean, how -- how is a judge like that, a hypothetical -- what's she supposed to do? Is she supposed to say, I better not enter anything, because after all, I don't care if the defendant has to produce a case? Or is she supposed to enter something and think, well, I could change my mind before it's over? Or what is she supposed to do? She just thinks she made a mistake.
03-8661 +++$+++ 8844 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So your hypothetical is that there's evidence of two guns?
03-8661 +++$+++ 8845 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought here there was evidence there was a pistol, but maybe I'm wrong.
03-8661 +++$+++ 8846 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry. Yes, in this case --
03-8661 +++$+++ 8847 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There was evidence it was a pistol. So I -- I would have thought, reading this, that there was evidence. That's beside the point, but I'm -- I'm just using it as an example where a judge might think she made a mistake. She thought there was no evidence that it wasn't a shotgun, and I guess she forgot that there was evidence it was a pistol and a pistol is not a shotgun.
03-8661 +++$+++ 8848 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ She -- she clearly didn't forget. The prosecutor said to her the evidence was testified to that it was a pistol, it was a revolver, it was a .32 --
03-8661 +++$+++ 8849 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I'm quite sure -- not quite sure then why she wrote down there was no evidence it wasn't a shotgun, but she had some reason. And now a few minutes later, she thinks, boy, whatever my reason is, it couldn't have been that good. Or maybe she thinks that that's a reason an hour from now or maybe a day from now. What's the line? Suppose she thinks of it a second from now. Suppose she thinks the instant she writes acquittal, she thought, oh, my God, a pistol is not a shotgun. Of course, it isn't. I know that. I better change it. Is it a second from now? Is it she can never change it no matter what once the pen leaves the paper? What's your rule?
03-8661 +++$+++ 8850 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In a single-count case, Your Honor --
03-8661 +++$+++ 8851 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Whether it's single-count or double-count or triple-count. I want to know what -- how you see it, not how I see it.
03-8661 +++$+++ 8852 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- compliance with State procedure informs the inquiry and once -- once we have what is determined to be a resolution --
03-8661 +++$+++ 8853 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Once it's final under State procedure, right? And you also would add once there's no clerical error. She didn't mistakenly say, you know, affirm when she meant to write deny. Leaving that aside, once it's final under State procedure, it's final.
03-8661 +++$+++ 8854 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor.
03-8661 +++$+++ 8855 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And sometimes it's wrong.
03-8661 +++$+++ 8856 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
03-8661 +++$+++ 8857 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it'd be sometimes wrong no matter how you define final. I mean, you know, she let's --
03-8661 +++$+++ 8858 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's excellent.
03-8661 +++$+++ 8859 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- let's all the evidence on and -- and does it after all the evidence is there, and then she -- and then at the close of all the evidence, she gives a directed verdict for -- for the defendant, and then discharges the jury, and as soon as the jury walks out, oh, my God, what a mistake I made. Too bad. Right? I mean, we say double jeopardy.
03-8661 +++$+++ 8860 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct, Your Honor. That's what --
03-8661 +++$+++ 8861 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Excellent. That was an excellent answer. (Laughter.)
03-8661 +++$+++ 8862 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now, I would like to know, given that answer, why is this final under State procedure because it seems as if the State courts of Massachusetts have said, no, it is not a constitutional error to go and look into this again. She can change her mind. And that's what I'd like you to focus on because I agree that that was a good explanation of the rule.
03-8661 +++$+++ 8863 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If -- if State procedure, as in this --
03-8661 +++$+++ 8864 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm thinking of this case.
03-8661 +++$+++ 8865 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-8661 +++$+++ 8866 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose I took Justice Scalia's rule and I said, that's the rule. Now, I would say that's the rule of a Federal law. Very well. That turns on your decision here being final as a matter of State law, but it seems to me we have State courts here saying, at least for double jeopardy purposes, it isn't final as a matter of State law. And therefore, I want to know how we reach your conclusion here.
03-8661 +++$+++ 8867 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there's -- there clearly is a line beyond which the State cannot go, and that's what Justice Brennan was talking about in his concurrence in Lydon. He said the -- the State cannot fashion a procedure whereby the judge never discharges the jury, and in -- in Kepner, this Court held that the Philippine procedure of withholding finality from an acquittal in a bench trial also violated the Constitution. So State procedure does not control. It is sufficient but not necessary. If -- if you comply with State procedure to say this is -- this is an acquittal, okay, it's an acquittal. If you do not comply with State procedure, it can still be an acquittal under Federal law.
03-8661 +++$+++ 8868 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does the State have the power to say whether -- whether an acquittal under State law constitutes an acquittal for purposes of Federal constitutional double jeopardy purposes? Is that a State law question or a Federal question?
03-8661 +++$+++ 8869 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. It -- it is a Federal question, Your Honor. This Court --
03-8661 +++$+++ 8870 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought it was.
03-8661 +++$+++ 8871 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- this Court said that in Smalis quite clearly. If I -- if I may, two things and then I'd like to reserve. But the -- the State would have this Court draw a distinction between acquittals by a judge and acquittals by a jury. That simply has been rejected by this Court numerous times. Sanabria, Rumsey. An acquittal is an acquittal. Again, the -- the State would have this Court draw distinctions between acquittals based on law and acquittals based on fact. Sanabria unequivocally rejected that. Sanabria says that in fact sufficiency of the evidence is not a legal defense. An acquittal is an acquittal. If there are no further questions, I'd like to reserve the balance of my time.
03-8661 +++$+++ 8872 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. Ms. Neaves.
03-8661 +++$+++ 8874 +++$+++ FALSE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: I'd like to start with where the Court left off on the notion of reconsideration and finality. The Massachusetts Appeals Court here specifically stated that a judge's right to reconsider his or her legal rulings is firmly rooted in the common law and permitted Judge Donovan in this case to reconsider her legal ruling that the evidence was insufficient. Certainly that common law right of reconsideration could not run afoul of this Court's double jeopardy jurisprudence, but the appeals court specifically stated that the Double Jeopardy Clause was not violated because there was no second proceeding and that the judge in this case, therefore, was permitted to reconsider her ruling.
03-8661 +++$+++ 8875 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What if -- what if this had been the sole count, the gun possession count had been the sole count, and -- and the same ruling had been made by the judge? Would you say that there was double jeopardy attaching or not?
03-8661 +++$+++ 8876 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not so long as the jury was still there. If the prosecutor had the opportunity to say, Judge Donovan, give me 10 minutes, I know there's a Supreme Judicial Court case on the point that I'm arguing to you, which is that you did not need a witness to directly testify that the gun barrel length was less than 16 inches, I know there's a case, give me 10 minutes, take a recess, and if the judge agreed to do that and the prosecutor came back and gave the case to the judge and the judge said, absolutely, you're -- you're correct, I'm going to send the charge to the jury, there's no double jeopardy violation there.
03-8661 +++$+++ 8877 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what if it's a bench trial?
03-8661 +++$+++ 8878 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A bench trial is a very difficult situation. And the Smalis case certainly seems to be the hardest case here, but bench trials present different -- a different situation because the judge is both the fact-finder and the law-giver. And in that context, it's much more difficult --
03-8661 +++$+++ 8879 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I know it's difficult. What's your answer?
03-8661 +++$+++ 8880 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My answer to that is I believe that if the judge stated the evidence is insufficient, as -- as the judge did in Smalis, as the trier of fact and law, I find the evidence --
03-8661 +++$+++ 8881 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's over.
03-8661 +++$+++ 8882 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's over. It's over.
03-8661 +++$+++ 8883 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The minute --
03-8661 +++$+++ 8884 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What if in the case --
03-8661 +++$+++ 8885 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- the minute he --
03-8661 +++$+++ 8886 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- we have before us the State allowed an interlocutory appeal on behalf of the prosecution right after the judge's ruling?
03-8661 +++$+++ 8887 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In a jury case, Your Honor?
03-8661 +++$+++ 8888 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
03-8661 +++$+++ 8889 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think --
03-8661 +++$+++ 8890 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Conceivably they could allow an interlocutory appeal from a judgment of acquittal at the close of the prosecution's case.
03-8661 +++$+++ 8891 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If such a -- if such a process could be put in place where there was an appellate panel that would be willing and available to hear that while the jury remained empaneled, I don't think it would run afoul of the Double Jeopardy Clause.
03-8661 +++$+++ 8892 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
03-8661 +++$+++ 8893 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But is that necessary? I -- I mean, that's what I think is the difficult question here. Can you say that it's final for purposes of the decision-maker outside that courtroom, namely an appellate court, but it's not final in respect to the judge having a right to change his mind within the court? That -- that makes a lot of sense to me, but I don't know if it's possible to get there. Why not? I -- I think, well, the reason is that you want judges to be able to reconsider things and you don't have that problem when you're talking about an appeal.
03-8661 +++$+++ 8894 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is --
03-8661 +++$+++ 8895 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Or is there any -- is there any, in other words, to reconcile our case that you're talking about, Smalis?
03-8661 +++$+++ 8896 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Smalis case?
03-8661 +++$+++ 8897 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, yes.
03-8661 +++$+++ 8898 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think there are a number of ways to reconcile it. Certainly Massachusetts' position is that it's the difference between a bench trial and a jury trial, but there is also no doubt that the case left the trial court and went up on appeal. I think both of those factors are significant.
03-8661 +++$+++ 8899 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but isn't -- isn't the significance supposedly the existence or nonexistence of our continuation of the jury panel, going back to Justice Stevens' question? And what if the -- what if the State had a procedure whereby the trial judge would simply decline to discharge the jury panel if an appeal were taken from the acquittal motion so that if he was tipped over, it could come right back to the same jury panel? Would -- would the -- would the answer have to be different?
03-8661 +++$+++ 8900 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think it would.
03-8661 +++$+++ 8901 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why?
03-8661 +++$+++ 8902 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think -- I think for a -- I think for my -- to my way of thinking about the cases, the jury is what matters and it's the defendant's right to his particular tribunal, and that's the first jury that's empaneled --
03-8661 +++$+++ 8903 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but on my hypothesis he's going to get the same jury.
03-8661 +++$+++ 8904 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly.
03-8661 +++$+++ 8905 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They have not been discharged.
03-8661 +++$+++ 8906 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly. So I would say that it would not be a violation of the Double Jeopardy Clause, and that's why --
03-8661 +++$+++ 8907 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wow. It goes all the way up on appeal and the jury -- I -- I don't know what the -- I guess he lets the jury go home for a couple of months or while the appeal is pending and then when the decision is overturned by the court of appeals, he comes back and recommences the trial? Wow.
03-8661 +++$+++ 8908 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. If that's so, then why shouldn't Smalis have gone the other way? Because they can send it right back to exactly the same judge.
03-8661 +++$+++ 8909 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because he -- he is the trier of fact, and I think at that point --
03-8661 +++$+++ 8910 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the jury is the trier of fact.
03-8661 +++$+++ 8911 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
03-8661 +++$+++ 8912 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, on the hypothesis before, you're saying if they don't discharge the jury and it can go back to them, no double jeopardy problem. In Smalis, it's going to be the same judge. It was a bench trial. It should have come out the other way.
03-8661 +++$+++ 8913 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the difference is the -- the judge in Smalis was the trier of fact. He made a rule -- he is both the trier of fact and the law-giver. He's decided that the evidence is insufficient. If that case goes up on appeal, that is -- that is factual -- that is oversight of his factual determination in essence.
03-8661 +++$+++ 8914 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Isn't it ordinarily true --
03-8661 +++$+++ 8915 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is -- is another -- is another difference -- and I don't know if this -- is another difference that in the hypothetical case with the jury, the jury has not yet deliberated --
03-8661 +++$+++ 8916 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
03-8661 +++$+++ 8917 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- in order to consider the facts.
03-8661 +++$+++ 8918 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-8661 +++$+++ 8919 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Whereas in your --
03-8661 +++$+++ 8920 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but --
03-8661 +++$+++ 8921 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- your case, the -- the judge is -- is --
03-8661 +++$+++ 8922 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask this?
03-8661 +++$+++ 8923 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- apparently deliberating --
03-8661 +++$+++ 8924 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it not true that in this --
03-8661 +++$+++ 8925 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's where I was headed.
03-8661 +++$+++ 8926 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- in this case the judge did not reconsider until the end of the defense case?
03-8661 +++$+++ 8927 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct, Justice Stevens.
03-8661 +++$+++ 8928 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, during that period, did the defense lawyer have the right to rely on the acquittal in deciding whether or not to put in defensive evidence on the count from which he thought his client had been acquitted?
03-8661 +++$+++ 8929 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, he certainly had some sense of reliance, but it wasn't a double jeopardy reliance. And I would -- I would point the Court to --
03-8661 +++$+++ 8930 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, if the Double Jeopardy Clause did apply, if it were treated as a true acquittal, he could just say, well, we can forget about that, send your witnesses home, we won't have to worry about it. I understand under your view they could send the witnesses home, and a week -- a week later the judge could say, well, we haven't submitted it to the jury, I've decided to change my mind. You could bring all those witnesses back. That's the way you think it should work.
03-8661 +++$+++ 8931 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Justice Stevens. And I think --
03-8661 +++$+++ 8932 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What -- what about a judge who thinks -- should the judge -- should a judge in trial be able to change his mind as long as the jury is still there? Yes.
03-8661 +++$+++ 8933 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-8661 +++$+++ 8934 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Should you be able to take an appeal in the same circumstance while the jury is still there? No. Now, suppose a judge thinks both those things. Is that judge, like me, for example, hopelessly confused? (Laughter.)
03-8661 +++$+++ 8935 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is the judge thinking contradictory things or is there a way of reconciling those two instincts?
03-8661 +++$+++ 8936 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- Justice Breyer, I -- I certainly believe that the -- that the double jeopardy rule that we're -- we're advocating would permit that, but I -- I think that most trial judges would not be very pleased about doing something like that. And practically speaking, there's --
03-8661 +++$+++ 8937 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ By the way, if it's constitutional, it's pretty easy to see a State might well say, let's do that, what a good idea. I mean, they might think it's a good idea. I don't know what people think is a good idea. We'll provide for interlocutory appeals right in the middle of cases because the prosecution can never appeal at the end of the case. That's really unfair. And we'll do this little thing here, and that way we give the prosecutor a chance.
03-8661 +++$+++ 8938 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I have to stick with the rule that -- that --
03-8661 +++$+++ 8939 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. You think it's -- I'm just inconsistent.
03-8661 +++$+++ 8940 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it -- I -- well, it's -- it's -- I think if -- I think if you accept the notion that jury discharge is what matters for purposes of the Double Jeopardy Clause and permitting a trial judge to reconsider a legal ruling up to that point, then if a State court could fashion an interlocutory review process of that legal ruling, that would not violate the Double Jeopardy Clause.
03-8661 +++$+++ 8941 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is the conceptual basis for saying that jury discharge makes the difference? Why is that the touchstone?
03-8661 +++$+++ 8942 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think this Court has said over and over again that it is the jury -- the defendant's right to hold onto his chosen jury that matters in a number of different contexts in the double jeopardy area. This Court has drawn the line at attachment of jeopardy when the jury is empaneled and sworn based on the historical value of a defendant having that particular jury resolve the government's case against him. And so I think that it matters, particularly where a motion for a required finding is not constitutionally mandated. It's a tool that --
03-8661 +++$+++ 8943 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I would think prejudice to the defendant should be a factor, and if the defendant is misled by what the judge says into not putting on part of the case that otherwise would have been put on, that's a pretty serious matter.
03-8661 +++$+++ 8944 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is a very serious matter, and it is the sort of prejudice that falls within the rubric of due process and -- and --
03-8661 +++$+++ 8945 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but we usually don't use --
03-8661 +++$+++ 8946 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- would grant you a retrial.
03-8661 +++$+++ 8947 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- we don't use the -- I mean, you could use the Due Process Clause for everything, for double jeopardy, for all of the other protections in the Constitution. I think our cases say if -- if there's a problem that has been created by ignoring the double jeopardy rules, you don't solve that problem by -- by the deus ex machina of the Due Process Clause.
03-8661 +++$+++ 8948 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. That's -- that's exactly correct.
03-8661 +++$+++ 8949 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What about --
03-8661 +++$+++ 8950 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So this a problem created by the judge's dismissal, and which this defendant had every reason to rely upon as being the end of that part of the case. I'm inclined to say if -- if that is a problem, in fairness it's a -- it's a double jeopardy problem, not a due process problem.
03-8661 +++$+++ 8951 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, with respect, Justice Scalia, I would say it is the sort of reliance that a -- that a defendant may have, as for example the case in Sanabria, where a -- where a judge excludes certain evidence, and the case goes forward. And as a result of that -- a result of that decision, the judge in that case granted a motion for acquittal. And at the end of the case, the prosecution asked for reconsideration of the exclusion of the evidence, and the judge ultimately determined not to go ahead and let that evidence back in, but specifically said if I had let it back in, I would have vacated my motion for required finding and allowed the case to go to the jury. So that sort of prejudice -- a defendant has an expectation of certain things that may or may not happen at trial, but the remedy outside of the double jeopardy context, if the defendant is acquitted, is a retrial. The drastic remedy of double jeopardy is -- is used when a defendant has been subjected twice to a trial before a second trier of fact. This -- this Court has been consistent that when the government subjects the defendant over and over again before a second --
03-8661 +++$+++ 8952 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I understand you correctly to say that if the defendant is acquitted, the remedy is a retrial?
03-8661 +++$+++ 8953 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no, no. I'm sorry, Justice Stevens. No. Only if the defendant is convicted is the remedy a retrial because, indeed, if the jury acquits him, there is no harm at all.
03-8661 +++$+++ 8954 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What is the reason you didn't want a fairly simple rule that I was thinking of? I'll tell you what it is and you'll tell me honestly why you don't. It's final. The word acquittal is -- is final if the jury has been discharged or the decision is sent to another body for review. One or the other.
03-8661 +++$+++ 8955 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I could live with that rule.
03-8661 +++$+++ 8956 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now, so you haven't found something in your research that suggests that -- that --
03-8661 +++$+++ 8957 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no. Our position has been consistent.
03-8661 +++$+++ 8958 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, under -- under that view of things, suppose in this -- in this case there's a motion for acquittal and the judge says, yes, I -- I think there's no evidence on the gun. Then the prosecutor says I want 10 minutes because I think there's a case on it. Then he says, you know, there's a case and I think it covers this, and the judge says, well, I think you may be wrong. I'll let you reopen to put on evidence of -- of the gun. What would -- what would be the result in that case?
03-8661 +++$+++ 8959 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that because if it's a jury trial and the case is still -- and the jury is still there, it could be done without violating the Double Jeopardy Clause.
03-8661 +++$+++ 8960 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I think you have to say that under your view.
03-8661 +++$+++ 8961 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think so. I think honing -- what this Court has talked about in honing is -- is refining a case before a second trier of fact. And as a matter of Massachusetts' procedures, certainly the prosecution may be able to reopen if there's good faith or mistake, but for purposes of --
03-8661 +++$+++ 8962 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Then why did the Massachusetts Supreme Court say -- and I thought it did say this in its rules -- trial judge, you rule on the spot when a motion to acquit is made? We will not allow you to reserve judgment. Because the normal thing would be a trial judge would say, why should I decide this definitively now? I'll wait till the end of the case. But as I understand the Massachusetts rules, it says, judge, you can't reserve on a motion to acquit. You must rule immediately.
03-8661 +++$+++ 8963 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct, Justice Ginsburg, and if I misunderstood the hypothetical, that -- that was my mistake. As a matter of Massachusetts law, a trial judge does not have that option. She must rule on the motion before the defendant decides to put on the case, and that is what happened here.
03-8661 +++$+++ 8964 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So -- so part of Justice Breyer's question needs editing because it would not be possible under Massachusetts law for the judge to say --
03-8661 +++$+++ 8965 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct.
03-8661 +++$+++ 8966 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- I reserve.
03-8661 +++$+++ 8967 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct. She could not. And -- and if I could just highlight a couple of points to -- to demonstrate the significance of -- of permitting trial judges the ability to reconsider legal rulings. In Massachusetts, the fact that there's a written motion here is quite unusual. These motions are made orally generally. The prosecution is not given an opportunity -- does not -- there's no requirement that he be given advance notice ever. There's no requirement of that. The prosecution argues in opposition to the motion on the spot, and the judge rules on the spot. And -- and I think that -- that procedure is demonstrated quite clearly here. The -- the defendant filed the motion. The prosecution did, indeed, argue the correct response, legal response, did not have a case at hand and as --
03-8661 +++$+++ 8968 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your position would be the same if the -- if the Massachusetts law provided that the motions at the end of the prosecution's case shall not be ruled on unless -- after they're written briefs filed by both sides and they have 3 days of argument. You'd still have the same position.
03-8661 +++$+++ 8969 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true.
03-8661 +++$+++ 8970 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And in fact, the -- the quick and dirty procedure you describe is probably a boon to prosecutors because a judge is -- is not likely to take the serious step of dismissing a charge on the basis of -- of such a procedure and is more likely to say, well, we'll let the trial go ahead and see what the evidence discloses. I mean, I can't imagine that this is not a boon to the prosecutor rather than, as you -- as you seem to paint it here, a disadvantage.
03-8661 +++$+++ 8971 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I wouldn't want to characterize --
03-8661 +++$+++ 8972 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is a very unusual judge I would think to --
03-8661 +++$+++ 8973 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-8661 +++$+++ 8974 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- to whip it out like that and -- and enter an acquittal without -- without letting it go forward.
03-8661 +++$+++ 8975 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would say it is unusual, but it happens where -- and I think the trial judge certainly in this case who believes that if she's mistaken, can -- can correct her ruling and send it to the jury, then feels somewhat free to -- to do what the defendant asks, if it seems reasonable, and -- and knows that if -- if it can be corrected --
03-8661 +++$+++ 8976 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You may -- you may regret what you've asked for.
03-8661 +++$+++ 8977 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I hope not, Justice Scalia. I hope not. I think --
03-8661 +++$+++ 8978 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What would happen -- I think one of the briefs suggested that suppose you have a multi-defendant case and the judge says, after the prosecution case is done, defendant A, I'm going to grant a motion to acquit. He's out of it, but there was enough evidence to require the -- the defense to go on for B and C. And then after hearing B and C's defense, the judge said, I think I was wrong about acquitting A, so I'm -- I'm going to withdraw it. Would there be -- could that be done without any -- any double jeopardy bar? The jury hasn't been discharged.
03-8661 +++$+++ 8979 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, I don't think it presents a double jeopardy bar, but a defendant has a right to be present at his trial, and so it certainly would be a reversible error if -- if a trial judge --
03-8661 +++$+++ 8980 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, the -- the -- he's sitting there. Defendant A is sitting there throughout the whole trial.
03-8661 +++$+++ 8981 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Then there's certainly no double jeopardy bar to that.
03-8661 +++$+++ 8982 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There could be a problem that you have to have a fair chance to present evidence and so forth.
03-8661 +++$+++ 8983 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Justice Breyer, and -- and --
03-8661 +++$+++ 8984 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I guess there are a lot of rules in Massachusetts that deal with that. They can't -- you have to be fair to the defendant in -- is that right?
03-8661 +++$+++ 8985 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, certainly. Rule 25 itself specifically states that the defendant shall have the opportunity to present evidence after the motion is denied or allowed in part without reserving that right. So certainly that option is available. Unless the Court has further questions.
03-8661 +++$+++ 8986 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Neaves.
03-8661 +++$+++ 8987 +++$+++ TRUE +++$+++ MS. NEAVES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
03-8661 +++$+++ 8988 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. -- Mr. Srinivasan.
03-8661 +++$+++ 8990 +++$+++ FALSE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Stevens, and may it please the Court: The trial court in this case was permitted to correct its erroneous ruling in favor of the defendant on the motion for judgment of acquittal. Because the prosecution is entitled to a full and fair opportunity to prove its case, that's a value --
03-8661 +++$+++ 8991 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you the same question I asked your -- your colleague? Supposing we're not in Massachusetts, but we're in another State that provided for an interlocutory appeal immediately after the judge's ruling in this case. Would -- would you have the same appraisal of the case on those facts?
03-8661 +++$+++ 8992 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Would we have the same appraisal as the State? We don't --
03-8661 +++$+++ 8993 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. Would you still say it was not final, even though it was sufficiently final for appellate purposes?
03-8661 +++$+++ 8994 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. We -- we think that the Court's holding in Smalis applies equally to jury trials and to bench trials such that an appeal, an interlocutory appeal, in the midst of a jury trial would not be permissible. But we also think that there is a sound basis for drawing a distinction between --
03-8661 +++$+++ 8995 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But my question is assuming a State procedure in which the interlocutory appeal was permissible, you -- you would say Double Jeopardy Clause would bar that appeal.
03-8661 +++$+++ 8996 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, because we read that to be the holding of Smalis. But we think there's a basis for distinguishing between appeals on one hand and continuing proceedings before the initial tribunal on the other hand. First of all, this Court has drawn that distinction in Swisher v. Brady where it initially said that the two-stage system of adjudication is -- in Maryland that was at issue in that case was permissible because it entailed continued proceedings before the initial tribunal rather than an appeal to a second tribunal. And the Court specifically distinguished its prior decisions in Jenkins v. the United States and Kepner, both of which involved appellate review. And the other basis for drawing a distinction between appeals on one hand and reconsiderations by the trial court on the other is historical tradition. I think the Court could look to history and history would show that on one hand trial courts have always had inherent authority to reconsider their mid-trial rulings because the practical exigencies of trial are such that trial courts inevitably will err on occasion, and the ends of justice require trial courts to have the authority to revisit their mid-trial rulings.
03-8661 +++$+++ 8997 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would -- would you allow a trial judge to reopen -- to -- to permit the prosecution to reopen the case?
03-8661 +++$+++ 8998 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We would, Justice Kennedy, but it raises a distinct problem because one value that's served by the Double Jeopardy Clause is the defendant's interest in preventing the prosecution from honing its evidentiary case by repeated efforts. And if the trial judge were permitted to reopen the case to give the prosecution that opportunity, it at least would implicate that interest. Now, we still think that the proper line is jury discharge, but we understand that that hypothetical would present a distinct interest. Now, with respect to historical tradition on appeals, the historical tradition is clear that the government has lacked authority at common law to take an appeal in a criminal proceeding. This Court relied on that common law tradition as early as Sanges v. the United States and it's repeated that understanding in Carroll v. the United States and Arizona v. Manypenny, and that's why the Court construes statutory grants of authority to the government to take an appeal in criminal cases quite narrowly. And so I think the Court could draw a distinction between reconsiderations by the trial court and appeals by looking to historical tradition, and the Court often looks at history to shape the contours of double jeopardy protections. And that would afford the case -- the Court a basis for saying that in Smalis, while appeals were forbidden, in this case trial court reconsideration should be permitted. And I think the lens through which the Court would do that under the Double Jeopardy Clause is the valued interest in giving the prosecution one full and fair opportunity to prove its case in the sense that while that full and fair opportunity may exclude an appeal, because the Court held as much in Smalis, it doesn't exclude reconsiderations.
03-8661 +++$+++ 8999 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why -- why doesn't the -- the prosecution gets its full and fair opportunity if we have a rule that says to trial judges, when you make a ruling on acquittal, you better be serious and you better not make a snap judgment, think it over, because once you've done it, it sticks? Why -- why doesn't the prosecution have a perfectly fair opportunity under that rule? Everybody knows where he stands and judges, we hope, are going to be careful.
03-8661 +++$+++ 9000 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, we think a constitutional rule that would turn on the definitiveness of a trial court ruling would be flawed in three respects. First, the line between a definitive ruling and a tentative ruling is not altogether clear, and we've outlined in our brief at page 24 in a lengthy footnote a variety of factual scenarios that come from real cases where trial judges, as they often do, rendered a ruling on a motion for acquittal orally, and whether you think that ruling was definitive or tentative might depend on which page of the transcript you happen to be looking at. But even if we're dealing with a situation in which the ruling clearly falls on the definitive side of the line, you'd still have the problem that a trial court might be convinced that it's correct and rule definitively but still be incorrect. Trial courts make mistakes. That's why this issue comes up as often as it does. For example, in this case --
03-8661 +++$+++ 9001 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All these cases -- we've had several, not too many over the -- the whole line of cases -- and the trial judge has always committed a rather plain error. And we all have the case where if you just try to decide whether it's a just result, you'd always say no. A case just like this. The judge made a mistake, but we've always said that's not something we -- we look at.
03-8661 +++$+++ 9002 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't -- I'm not quite sure I'm following what you're saying, Justice Stevens, because --
03-8661 +++$+++ 9003 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I say as a typical matter these double jeopardy claims arise in cases in which the judge made a rather plain error, and when you look at it later, you say, gee, he goofed. And so I'm not sure we should consider the plainness of the error or the fact that they -- they do mistakes because they do.
03-8661 +++$+++ 9004 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but I don't -- but the reason why the Court accepts errors in some situations is because there's some other value under the Double Jeopardy Clause.
03-8661 +++$+++ 9005 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The value of finality is what is really at stake here.
03-8661 +++$+++ 9006 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's not just the value of finality. It's that, for example, if the judge makes an error and then the jury is discharged, it's the value that the defendant has in obtaining a result from the particular tribunal. In the circumstances of this case, where the trial judge can correct her error within the -- within a matter of minutes, at least in some situations, there would be no double jeopardy purpose served --
03-8661 +++$+++ 9007 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But here it was not a matter of minutes.
03-8661 +++$+++ 9008 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In this --
03-8661 +++$+++ 9009 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Here it was --
03-8661 +++$+++ 9010 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I acknowledge in this case it wasn't, but it might well be in some cases. For example, we cite a decision of the Washington Supreme Court, State v. Collins, which involves essentially the same scenario as this case, but the only distinction was that after the trial judge initially announced her ruling, the prosecution had the precedent in hand and within a span of 10 minutes, the trial judge was able to realize her error and to correct her ruling and reinstate the charge.
03-8661 +++$+++ 9011 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does it matter if the -- if the ruling is conveyed to the jury even though the jury isn't discharged?
03-8661 +++$+++ 9012 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would matter, Justice O'Connor, but I don't think it would necessarily preclude the prosecution from going forward on the charge under the Double Jeopardy Clause. The question would be one of due process and prejudice to the defendant.
03-8661 +++$+++ 9013 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You had three -- three reasons you were going to give Justice Souter. One is it's not clear always that it's definitive. The other is that trial judges do make mistakes, and the third is?
03-8661 +++$+++ 9014 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And the third is -- it's an issue that you raised earlier, Justice Kennedy. It's that this case might look different as an atmospheric matter if the trial judge at the time she rendered her ruling had said, I'm ruling in the defendant's favor, but I may reconsider this decision at a later point in the proceedings. Now, that might be seen to fall on the tentative side of the line, but that's exactly the effect of this -- of the trial judge's ruling as a matter of Massachusetts law. And we don't think there's a constitutionally significant distinction between a trial judge explicitly saying that a ruling can be reconsidered and State law saying that the ruling can be reconsidered.
03-8661 +++$+++ 9015 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why isn't the distinction the right to rely?
03-8661 +++$+++ 9016 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- there -- there -- that would be the basis of a claim, Justice Souter, but the right to rely is, in essence, a notice prejudice sort of claim and that could be handled in the way that trial courts typically handle claims by the defendant that they've detrimentally relied on an initial ruling the trial court has subsequently reconsidered. It would be equally the case, for example, as the State mentioned with respect to an evidentiary ruling that barred the prosecution from introducing a category of evidence, but then the trial judge, later in the proceedings, wanted to revisit that ruling. The question would be whether revisiting the ruling resulted in prejudice to the defendant because the defendant had detrimentally relied on the trial judge's initial determination. And we don't think that prejudice inquiry is meaningfully different when you're dealing with evidentiary rulings as when you're -- as when you're dealing with the reinstatement of a previously acquitted charge.
03-8661 +++$+++ 9017 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why -- why shouldn't you have -- what's magic about the jury? Why shouldn't you have the same rule on a bench trial? A judge in a bench trial makes a ruling, thinks about it, and says, you know, I shouldn't have ruled that way. Why shouldn't that judge be able to change? Just because there's no jury to discharge.
03-8661 +++$+++ 9018 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it would depend. If -- if the bench trial judge were making a mid-trial ruling, as -- as in this case, then the judge could change his or her mind. But if the bench trial judge were resolving the entire case and entered --
03-8661 +++$+++ 9019 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what is the line? I mean, is there -- there no point at which he can't change? I mean --
03-8661 +++$+++ 9020 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. The -- the -- I think the Constitution would step in and impose a line at some point, and probably the best indicator is a rule --
03-8661 +++$+++ 9021 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's not dismissal of the jury. We'll have to make up some other line. Right?
03-8661 +++$+++ 9022 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It can't be discharge of the jury, but I think where the Court would look, first and foremost, in defining a line for bench trials, if the issue would ever arise, would be a ruling that would essentially have resulted in discharge of the jury if the trial were before a jury. And for example, the Federal Rules of Criminal Procedure --
03-8661 +++$+++ 9023 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But how do we -- how does Smalis fit into this discussion? I thought in Smalis in a bench trial, we said it was final.
03-8661 +++$+++ 9024 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was, Justice O'Connor, for purposes of an appeal, and that's why I think the critical distinction between Smalis and this case is that where the prosecution might not have authority to take an appeal from a ruling on the insufficiency of the evidence.
03-8661 +++$+++ 9025 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Your line would be something like if it -- if -- from all of the transcript, it appears that the judge is -- is giving consideration to the entire case or something like that in a bench trial.
03-8661 +++$+++ 9026 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In a bench trial, that -- that would be part of the inquiry, Justice Kennedy, and I would also point, by the way, to -- can I just finish the thought, Justice Stevens? To Federal Rule of Criminal Procedure 32(k)(1), which says that when a bench trial -- when a judge sitting in a bench trial issues a ruling that finds a defendant not guilty, that ruling will discharge the defendant. And I think a discharge of the defendant would be one of critical consideration. Thank you.
03-8661 +++$+++ 9027 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you. Mr. Nathanson, you have about 3 minutes left.
03-8661 +++$+++ 9029 +++$+++ FALSE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, may it please the Court: I'll try to be as brief as I can. The argument about inherent authority to reconsider an acquittal really has it backwards. Inherent authority bends to the Constitution. The Constitution does not bend to a judge's inherent authority. Second, the -- the Government is trying to substitute a standard here of a second proceeding, which is not this Court's standard. This Court's standard is further proceedings after an acquittal, including resumption of the same trial. That's what this Court said in Smalis. The Government is also trying to move this case into the particular tribunal analysis. That comes from cases that are mistrials. This is an acquittal. This is not a particular tribunal case. As to the judge resolving all the issues in a bench trial and -- and that's why that -- that acquittal would be more final than a motion for a directed verdict, it was a motion for a directed verdict. It was a demurrer in Smalis. It was the exact same standard that the judge applied in that case. As to prejudice, prejudice has never been a factor in this Court's double jeopardy analysis. As a matter of fact, in -- in one of the really classical statements, Ex parte Lange, if you look at the facts of that case, that looks like complete gamesmanship. The defendant was sentenced to a jail term and a fine when the -- the statute only authorized a jail term or a fine. He said, oh, I'll pay -- I'll pay the fine. It's a get-out-of-jail-free card. There's complete gamesmanship, but prejudice was not a factor. And in fact, this Court has said prejudice is not open to judicial examination in double jeopardy cases. As to honing, in -- in fact, in Rumsey --
03-8661 +++$+++ 9030 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Honing?
03-8661 +++$+++ 9031 +++$+++ TRUE +++$+++ MR. NATHANSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Honing. Not the name of a case, Your Honor. But whether or not the Government has honed its cased through -- and -- and they would say evidentiary honing. But it's not evidentiary honing. In Rumsey, it was only argument that was presented at -- at the remand after acquittal. Justice Souter, I want to heartily endorse the -- the way you phrased what the rule should be, which is, trial judges, you ought to take this seriously. Pretermitting the prosecution's case is a very serious matter. You cannot take it back. So think about it. Do it right the first time. As to -- to rule 25 itself, it's true that the -- the judges can't reserve. So what they do as -- as a matter of practice in Massachusetts is they simply deny, and -- and they deny the first one and they have two more opportunities, one at the close of the defendant's case and they have an opportunity at the close of -- after the jury has returned a verdict. At each of those steps, they can make a motion for acquittal. As to the full and fair opportunity, this Court said in Martin Linen that the Government has a right to try the case. They do not have a right to have it proceed to verdict. I'm just taking that straight from Martin Linen. As to, finally, whether or not State law sort of insulates this from Federal -- I see my time is up. Thank you.
03-8661 +++$+++ 9032 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Nathanson, thank you. The case is submitted.
03-878 +++$+++ 9036 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in No. 03-878, Clark v. Martinez, and No. 03-7434, Benitez v. Rozos. Mr. Kneedler.
03-878 +++$+++ 9038 +++$+++ FALSE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Mr. Chief Justice, and may it please the Court: These cases implicate the fundamental power of the United States to protect its borders by excluding aliens who arrive at its borders, but are found under the law not to qualify for admission. This Court held more than 100 years ago in Nishimura Ekiu that the power of a nation to forbid the entrance of foreigners within its dominions is inherent in sovereignty and is central to self-preservation. If it were otherwise, the integrity of the Nation's borders and its security would be at the mercy of a foreign power who might choose to foist aliens onto our country or to the self-help efforts of aliens who might leave another country coming to our shores. The migration crises involving Haitians and Cubans over the last 35 years vividly illustrate the adverse consequences of such a regime, and events of recent years confirm that the threats to the Nation's borders and security are not limited to nearby nations.
03-878 +++$+++ 9039 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ But this Court held only 3 years ago that the statute before us here does not permit the Attorney General to hold the alien indefinitely.
03-878 +++$+++ 9040 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ The -- the Court addressed one of the statutes before the Court here. It's -- it's important I -- I think to recognize another statute and -- that is -- reflects the background principle of this Court's decision in Mezei. And if I may explain, to do that. This Court made clear in Mezei that an alien has no substantive due process right to enter the United States when the executive branch has determined, under the law, that he has no right to enter the United States. The relevant --
03-878 +++$+++ 9041 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ But, Mr. Kneedler, recognizing that distinction, is that a distinction drawn by the statute that's before us?
03-878 +++$+++ 9042 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Yes, I believe it is, but it -- but -- but first of all, there is another statute which is highly relevant to this, and that is 1182(d)(5)(A), the parole statute. It is the parole statute that -- that has long governed whether an alien who arrives at our shores and has not been shown to be admissible may enter the United -- may enter the United States. The parole statute is set forth at petition appendix 3a -- excuse me -- page 3a of our brief. That is the only statute that affirmatively authorizes aliens to enter the United States. That statute is -- obviously confers no rights. It is written entirely in terms of the discretion of the Attorney General, now the Secretary of Homeland Security. It says the Attorney -- the Secretary may, in his discretion, temporarily under conditions that he prescribes and for urgent and humanitarian reasons, parole an alien into the United States. But it says that parole does not constitute an admission, and it may be revoked at any time when the Secretary in his opinion concludes that the purposes of the parole have been satisfied.
03-878 +++$+++ 9043 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ So are you -- are you arguing now that -- that (5)(A) -- (d)(5)(A), is the statute under which you are detaining him and that 1231(a)(6) has nothing to do with the case?
03-878 +++$+++ 9044 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ No. They -- they are independent authorities for the detention --
03-878 +++$+++ 9045 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ So -- so you're arguing -- then you are. You're saying -- this is coming to me a little bit anew. I perhaps didn't read it carefully enough. But I thought -- let's assume you lose on 1231(a)(6), that I can't think of a way. Let's assume that I can't think of a way of applying the same words to your alien to mean something different than were applied to the alien who was in Zadvydas. Suppose you lose on that point. Now you're saying, well, independently of that, we have a different statute under which we can detain him, namely 1182(d)(5)(A). Is that --
03-878 +++$+++ 9046 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Yes, absolutely, and the -- and the --
03-878 +++$+++ 9047 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Now -- now is that argument -- I mean, I'm sorry that I --
03-878 +++$+++ 9048 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Yes, and we -- we make -- we do make that argument in our brief.
03-878 +++$+++ 9049 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- and that -- and so is that made in the courts below and everything that they're doing in the cases --
03-878 +++$+++ 9050 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Yes. We made it at -- we made it in both courts below, and we -- and we think it's clear from the background of -- of this statute that it does -- that it does confer independent authority.
03-878 +++$+++ 9051 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ But this statute just -- just goes in a circle because it ends. The way end -- (A) ends is that after revoking the parole, the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States, which refers you back to -- to 1231(a)(6).
03-878 +++$+++ 9052 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ No. With respect, it doesn't. 1231(a)(6) is an additional -- on its face is an additional grant of detention authority. It is not -- but whereas, the -- the parole authority which -- which for years until --
03-878 +++$+++ 9053 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Well, this shall continue to be dealt with in the same manner as that of any other applicant --
03-878 +++$+++ 9054 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ And an --
03-878 +++$+++ 9055 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Dealt with includes, it seems to me, 1231(a)(6).
03-878 +++$+++ 9056 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ An applicant for admission includes anyone who has been found not to be admissible to the United States. 8 U.S.C. 1225(a)(1) provides that any -- any alien in the United States who has not affirmatively been found to be admissible is an applicant for admission. And the -- the statutes dealing with applicants for admission or aliens who arrive at our shore establish that detention, even indefinite detention, is -- is not only permitted, but required unless the Secretary releases someone.
03-878 +++$+++ 9057 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ How would that -- how would that apply to someone who hasn't gotten parole, hasn't gotten any permission, who snuck across the border? That's one of the pieces of this that's incomprehensible, that you are suggesting someone can be detained indefinitely who we allowed in temporarily, but such treatment could not occur with respect to somebody that had no permission at any time to be here.
03-878 +++$+++ 9058 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Yes. Well, the -- the parole statute -- if someone was taken into custody, the parole -- who had sneaked across the border, that person, under the 1996 revisions, is an applicant for -- for admission, and the parole statute would govern that. As a constitutional matter, and particularly with respect to procedural due process, the Court has suggested in a number of its cases that there may be a difference between somebody who arrives at our borders and -- and is stopped and somebody who -- who sneaks through. At least as a procedural matter, the Government would have to establish that he has no right to be here. But --
03-878 +++$+++ 9059 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ But may I --
03-878 +++$+++ 9060 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Well, are -- are you saying that if an alien on -- who seeks admission and is denied admission and is at Ellis Island or the JKF Airport, that the Attorney General is -- does not have to consult 1231(a)(6)?
03-878 +++$+++ 9061 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ No. We believe the parole statute furnishes independent authority --
03-878 +++$+++ 9062 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Where does it say -- I mean, the reason I guess I missed it is because when I looked at your table of contents and elsewhere in the brief, it seems phrased totally in terms of 1231(a)(6). That's the heading. Each argument seems to support that. And then on page -- you know, when you refer to this, I guess on page 26, you're talking in a section about what 1231 must be because of the structure of it. And then you refer to other provisions such as the one you're now mentioning. I just didn't pick up that it was a totally independent basis.
03-878 +++$+++ 9063 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Right. And -- and if I may, the -- the special statutes that govern the parole of Mariel Cubans that we reproduce in the appendix to our brief at 212.12 were promulgated in 1987 before 1231(a)(6) was enacted in 1996.
03-878 +++$+++ 9064 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ All right, but where does it say that? I'd like to just glance at it even now. Where does it say that in your brief, that it's a totally independent basis?
03-878 +++$+++ 9065 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ On page 12 -- 26 to 27.
03-878 +++$+++ 9066 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ That's what I read and it was in a structure called the statutory and -- text and structure support the Secretary's detention authority, which is under a bigger heading saying the text, structure, and history of section 1231(a)(6) confirm the executive branch's authority.
03-878 +++$+++ 9067 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ I should -- I should also --
03-878 +++$+++ 9068 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ So perhaps I could be forgiven for not understanding --
03-878 +++$+++ 9069 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ And -- and I should also point out that -- that in -- in our response to the petition in the Benitez petition, we expressly -- we expressly argued that 1182(d)(5)(A) is an independent source of authority.
03-878 +++$+++ 9070 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ But if -- if there's a statute that directs you with reference to a class, that statute is applicable, and this person is within that class. So how can you tell us we can't go or that we needn't go to 1231?
03-878 +++$+++ 9071 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ My -- my point is that's not the exclusive basis. I'm not saying that it's inapplicable to this category. But --
03-878 +++$+++ 9072 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Well, it might be exclusive constitutionally, but the Congress has acted.
03-878 +++$+++ 9073 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Or -- or --
03-878 +++$+++ 9074 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ And once it's acted, you're controlled.
03-878 +++$+++ 9075 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Well, or -- or -- but -- but what Congress -- if I may go back to the parole statute, before 1231(a)(6) was enacted, the only statute that governed the detention and the release of aliens arriving at our shores, what used to be called excludable aliens, was the parole statute. That provision -- until the aliens before this Court were ordered --
03-878 +++$+++ 9076 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ By which you mean -- parole statute, by which you mean?
03-878 +++$+++ 9077 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ 1182(d)(5)(A). Yes.
03-878 +++$+++ 9078 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Okay.
03-878 +++$+++ 9079 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ And until there is an order of exclusion, even now the parole statute is the only statute that governs the detention and release of the alien. And I think it would be impossible to read into 1182(d)(5)(A) any 6-month limitation or any limitation at all on how long someone can be detained because that statute sets up a presumption of custody with release only in the discretion of the Attorney General, or now the Secretary of -- of Homeland Security.
03-878 +++$+++ 9080 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ May I interrupt you there, Mr. Kneedler? Because I mean, the question is whether constitutionally we should respect that presumption. And -- and my -- my question basically is this. I can perfectly well understand and I can understand the -- the argument for respecting that presumption. When you're dealing with excluded aliens who are in a literal territorial sense within the border but are never allowed, in effect, beyond a point of initial custody, the ones who are kept at Ellis Island or wherever one may -- may keep them. It is difficult, however, I -- I think to accept what has been called the -- the fiction of custody. When we are dealing with individuals who, although absolutely excludable, were nonetheless welcomed into the United States by a public announcement of the President of the United States, have been allowed into the American population, just as clearly and as readily as they would have been under any other protocol of admission -- and I guess in this case for something like 20 years -- isn't there a point at which the -- the fiction of exclusion simply cannot be accepted for constitutional purposes?
03-878 +++$+++ 9081 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ There are a number of responses to that. First, as a factual matter, with respect to welcoming into the United States, what gets cited for that proposition is a statement by President Carter in May 5 of 1980. 10 days later, before the aliens in this case came to this country, he made clear that people should not do this. He encouraged people not to go to Cuba. The INS brought enforcement actions against people who went there. There were criminal prosecutions that were brought. So people were not encouraged to come to the United States in this way. With respect to the regime that you say -- I believe you said they're -- they're admitted just like under any other regime. That is not correct.
03-878 +++$+++ 9082 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Well, factually. They're allowed into the country. You know, they can get jobs, own property, et cetera.
03-878 +++$+++ 9083 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ They were allowed into the country under the parole statute that I just read, which makes -- which makes it clear that they are admitted not -- not in a way that confers any rights on them, but they are admitted in the interest of the United States for public benefits under circumstances which make clear that it is not an admission and that --
03-878 +++$+++ 9084 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ No. I realize but they are admitted in the sense that they say, okay, you can come in and you can do these things, but you get no -- in effect, you get no vested right. We can take it away like that.
03-878 +++$+++ 9085 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ No -- no vested right to come into the United States. It is, in effect, a revocable --
03-878 +++$+++ 9086 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ All right. But otherwise -- otherwise they are treated like any other class of aliens who are admitted into the United States. They are subject to this condition. The United States makes that clear, but they nonetheless can be in the country and do in the country what other aliens can do.
03-878 +++$+++ 9087 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ At the sufferance of the United States.
03-878 +++$+++ 9088 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ I -- I know. Subject to that condition.
03-878 +++$+++ 9089 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ And -- and the question we have here is when the -- when and if the United States, pursuant to this statute, decides no longer to suffer the aliens being at large, but instead return them to the border, in effect, or return them to detention, this statute makes clear that that -- that whatever practical experience they have had at large in the country is always subject to revocation --
03-878 +++$+++ 9090 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ No. I -- I realize that, but the problem is you've got a Due Process Clause that talks about persons not citizens. Maybe I can understand the -- the fiction that says it doesn't apply to these persons if, for practical purposes, we stop them at the border and we don't let them into society. Once we do let them into society, whether we say it's subject to this condition it can be revoked or not, I find it difficult to see a constitutional warrant for drawing the line that you want us to draw.
03-878 +++$+++ 9091 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ This Court has always treated as the same the custody of an alien who arrives at the border and has not been admitted, whether that person stays on the boat, goes to Ellis Island, which the Court said was not an entry that gave somebody constitutional rights to come here. In the Kaplan v. Tod case, you had the example of a person who was paroled for 9 years and regarded as not being in the United States. And what the --
03-878 +++$+++ 9092 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ You're giving me prior examples, but the issue here is should we continue to respect that -- what has been called that fiction as to people who are allowed into the country and are allowed to move around like other aliens and, indeed, and by and large like citizens.
03-878 +++$+++ 9093 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ With respect, I think it is not -- it is not a fiction with respect to the constitutional issue because there's a critical difference between, for example, a lawful permanent resident -- a person does not acquire lawful permanent resident status by something like adverse possession, by living in the United States for a long period of time. It is an affirmative grant of status for permission to reside permanently in the United States. It is a grant of a status --
03-878 +++$+++ 9094 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Which can be revoked. Which can be revoked, and that's the -- the distinction that seems to me strange. When somebody commits a deportable offense, they are stripped of whatever right they had to be here. They are, it seems to me, in the same boat as someone who is excludable. They -- they do -- do not have any right to remain no more than a parolee has. We have taken away their right to remain. So it seems to me that they have no status anymore based on a prior admission that we have removed from them.
03-878 +++$+++ 9095 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ This Court -- this Court thought otherwise in -- in Zadvydas 3 years ago where it drew a distinction. It said the distinction between someone who has never entered the country and someone who has effected an entry --
03-878 +++$+++ 9096 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ That's true. That's true. Absolutely we did. And also, I'll assume for argument's sake that you're completely right on the constitutional point. That's just for argument's sake. But assume you are. So there's all kinds of constitutional difference. Still, I don't see how to read the statute one way for one group of people and another way for another. The statutory words in Zadvydas, the words that the Attorney General may detain this individual beyond the removal period, are read in Zadvydas to mean beyond the removal period -- may detain beyond the removal period means for a reasonable time, presumably 6 months, presumptively, related -- reasonable time related to the purpose of the statute which is to find a country willing to accept them. Okay? Now, I haven't found a single case of this Court where you interpret these complicated words one way for one and another way for another. My law clerk found a couple of cases, Communications Work v. Bett and Machinists v. Street, where in Bett particularly the Court strongly implies the contrary. It says you can't read words differently just because we interpreted in one -- you know, one statute, they were interpreted in light of constitutional considerations, and now we have -- those constitutional considerations aren't here, but it's the same words. You have to apply it the same.
03-878 +++$+++ 9097 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ But -- but, with respect, the Court did not construe any word in this statute to impose the limitation that you're describing. The -- the way the Court posed the question was does it -- does it affirmatively grant a power for detention of these aliens in these circumstances. At the very beginning of the Court's opinion, the Court put to one side --
03-878 +++$+++ 9098 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ That's an interpretation.
03-878 +++$+++ 9099 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Pardon me?
03-878 +++$+++ 9100 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ It says -- that's an interpretation.
03-878 +++$+++ 9101 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ But -- but --
03-878 +++$+++ 9102 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ It says the statute does not confer power to hold beyond a reasonable period.
03-878 +++$+++ 9103 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ But -- but the -- the mode of analysis of the Court -- it starts with the introduction to the Court's opinion, and this is at page 682. It says -- of -- of Zadvydas. We deal here with aliens who are admitted, aliens who have not yet --
03-878 +++$+++ 9104 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Yes, yes. That's right.
03-878 +++$+++ 9105 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ No. But -- but that -- that's setting the Court -- the case up. But then what the Court says, in terms of how it interprets the statute, we construe the statute to contain an implicit reasonable time limitation, the application of which is subject to Federal court review. Well, what is a reasonable time depends upon the circumstances.
03-878 +++$+++ 9106 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Well -- well, yes, but what -- what -- we put in the presumptively 6 months, but we said in our view the statute, read in light of the Constitution's demands, limits an alien's post-removal period detention to a period reasonably necessary to bring about that alien's removal from the United States. It does not permit indefinite detention interpreting it to avoid constitutional threat. We include that once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute. Now, I don't know what those sentences are doing unless they're interpreting the words I mentioned. And then later in the opinion, we say it's presumptively --
03-878 +++$+++ 9107 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ No. What -- what --
03-878 +++$+++ 9108 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- not always, but presumptively 6 months.
03-878 +++$+++ 9109 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ What -- what the -- what the Court was doing was -- the -- the standard that the Court announced at the beginning of its opinion was a reasonable -- a reasonable time limitation, the application of which is subject to court review. As applied to permanent resident aliens, the Court saw a -- a constitutional problem and, in that situation, came up with a presumptive 6-month rule.
03-878 +++$+++ 9110 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Well, it interpreted the statute as doing it. Now, that brings me back to the original question.
03-878 +++$+++ 9111 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ No. No, I don't believe -- with -- with respect, what -- what I believe the Court said was that there is a reasonable time limitation. And given the -- given the distinction that runs throughout immigration laws, this Court said at page 2500 of the Supreme Court Reports in this decision, the distinction between aliens who arrive at our borders and are governed by Mezei, as opposed to people who enter, runs throughout our immigration law, I would think that it would run throughout 1231(a)(6).
03-878 +++$+++ 9112 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ All right. I can -- I can agree with you that the different classes are going to implicate different considerations on what is reasonable. But you, as I understand it, go the further step and say there is a presumption, and perhaps an irrebuttable presumption, that in the case of the -- the legally excluded, even though they are, in fact, in the country, the -- the presumptive reasonable period is forever.
03-878 +++$+++ 9113 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Well --
03-878 +++$+++ 9114 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ And that's where -- it's that stretch that's giving us the trouble.
03-878 +++$+++ 9115 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ And -- first of all, the Court doesn't have to decide that in this case because we have a regime where each of the aliens before this Court, came here, was paroled --
03-878 +++$+++ 9116 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ That's true, but we've got to say something.
03-878 +++$+++ 9117 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ But if -- if I may go to the Mezei case, what the Court said there is that the detention of the alien on Ellis Island was effectuating his exclusion. The two cannot be distinguished from one another.
03-878 +++$+++ 9118 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Well, Mr. Kneedler, do you mind telling us whether the record shows where Martinez and Benitez are now? Where are they?
03-878 +++$+++ 9119 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Benitez has been released to a half-way house. We sent the Court a letter --
03-878 +++$+++ 9120 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ That's what I thought.
03-878 +++$+++ 9121 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- last week showing that the review process under these regulations actually works. It's been working for 15 years. And as we explain in our brief, more than 9,000 people have been granted parole here.
03-878 +++$+++ 9122 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ So is that case basically moot? Benitez's?
03-878 +++$+++ 9123 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ He hasn't been -- he hasn't been -- I think he's still in -- in custody. Whether -- if -- if he -- if he completes that and is released, a question of mootness may arise at that point.
03-878 +++$+++ 9124 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Where's Martinez?
03-878 +++$+++ 9125 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Martinez was released pursuant to the court -- district court order almost 2 years ago, and he's -- he's now at large under an order of supervision.
03-878 +++$+++ 9126 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Mr. Kneedler --
03-878 +++$+++ 9127 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Now, if I can continue for just a moment and then I'll stop. There is a new statute, 1226(a) of title 8, part of the Patriot Act, which allows detention of aliens who threaten our safety or security. Presumably that is an option if either of these people is seen to do that.
03-878 +++$+++ 9128 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ If -- if there's an -- if there is an individualized reason to believe that an alien would be a terrorist or -- or a threat to the security in that respect, but the threat to the --
03-878 +++$+++ 9129 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ And that's available, is it not?
03-878 +++$+++ 9130 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ That -- that's available, but the threat to the national security here is much larger than that. If -- again, if we go back to the immigration crises involving Haiti and Cuba, there -- there is a threat to the national security when another nation can foist aliens onto our shores, and -- and --
03-878 +++$+++ 9131 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ May I ask you about --
03-878 +++$+++ 9132 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- if the United States had no ability to -- to deflect --
03-878 +++$+++ 9133 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Mr. Kneedler, can I ask you a question, forgetting the statutes for a moment -- I -- which we've already covered at some length? Just going to your constitutional position, it's clear that a person who's not been admitted and has been paroled could be excluded forthwith, summarily, and so forth because he's never been admitted. But does that person have any protection under the Constitution? Could we shoot him?
03-878 +++$+++ 9134 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ No, no, surely. What -- the -- the --
03-878 +++$+++ 9135 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Then what is the protection under the Constitution that deals -- is it the Due Process Clause?
03-878 +++$+++ 9136 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Whatever right -- in -- in a criminal prosecution the Bill of Rights would apply to that person.
03-878 +++$+++ 9137 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Is he -- is he a person within the meaning --
03-878 +++$+++ 9138 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Yes. We -- our position is not that he's -- not that he's not a person. The question is what -- is what process is due.
03-878 +++$+++ 9139 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ And is he a person who has a right to liberty, entitled to some protection, very, very, very minimal, but there is some protection to that -- that individual.
03-878 +++$+++ 9140 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ It -- depending upon the context. The one protection for liberty he does --
03-878 +++$+++ 9141 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Well, the context is he got off a boat. We couldn't -- but Cuba won't take him back or -- or whatever -- wherever he came from. They can't. And the only thing we can do to keep him out of the country is to keep him in jail.
03-878 +++$+++ 9142 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ He has no substantive due process right to be released into the United States.
03-878 +++$+++ 9143 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ He -- he doesn't have a right to be released. But -- but you do not contend that we could kill him.
03-878 +++$+++ 9144 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ No, absolutely not. Absolutely not.
03-878 +++$+++ 9145 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ He does have some -- some minimal protection under the Constitution.
03-878 +++$+++ 9146 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Absolutely not. The formulation -- and this was used in -- in the Court's decision in Landon v. Plasencia. The -- the question is there are no constitutional rights in connection with his admission to the United States. And admission means, I think, both formal granted admission and practical admission or entry. A person cannot --
03-878 +++$+++ 9147 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ A person who runs in illegally, a person who crosses the border illegally, say, from Mexico is entitled to these rights when you catch him.
03-878 +++$+++ 9148 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ He's entitled to procedural due process rights. We don't believe he -- that person has any more substantive due process right to remain at large in the United States.
03-878 +++$+++ 9149 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ But you -- you -- I thought there was a reg of the INS.
03-878 +++$+++ 9150 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ No. With -- with --
03-878 +++$+++ 9151 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Am I not right?
03-878 +++$+++ 9152 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ With -- with respect to the --
03-878 +++$+++ 9153 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Tell me if I'm right.
03-878 +++$+++ 9154 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ With respect to the regulations, but --
03-878 +++$+++ 9155 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Can I say what it is?
03-878 +++$+++ 9156 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Yes, I'm sorry.
03-878 +++$+++ 9157 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ I thought there was a reg -- to be sure we're talking about the same thing -- where the INS has said that Zadvydas applies to individuals who run into the United States illegally from Mexico. Am I right about that?
03-878 +++$+++ 9158 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ The -- the INS has -- or now DHS has applied it. I -- I don't know that there's an analysis in there that says Zadvydas requires it. I don't think the -- either the statute or particularly the Constitution would give somebody who sneaks across our border a right to remain here, a substantive due process right to be here. Maybe procedural rights would be different, but a substantive --
03-878 +++$+++ 9159 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ But is that the current INS --
03-878 +++$+++ 9160 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Mr. Kneedler, may I -- may I try to get in the question I did earlier? Is -- is 8 U.S.C., section 1182(d)(5) -- was -- was that applicable in Zadvydas, as it's applicable here?
03-878 +++$+++ 9161 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ No, because those were lawful permanent residents whose -- whose lawful permanent residency had -- had -- they came in under a grant of lawful permanent residency.
03-878 +++$+++ 9162 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ So this is a new string to your bow in this case.
03-878 +++$+++ 9163 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Yes, because these aliens entered the United States only --
03-878 +++$+++ 9164 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ But it wouldn't -- it wouldn't apply to the illegal alien because it's a statute that governs parole and they're not paroled into the United States.
03-878 +++$+++ 9165 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ But someone -- someone who would be picked up would be an applicant for admission and could be released under this -- under this statute. But -- but focusing here on the people excluded at the border --
03-878 +++$+++ 9166 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ How does that --
03-878 +++$+++ 9167 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- this is the only way someone could --
03-878 +++$+++ 9168 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ How does that make that person, the illegal entrant, a parolee?
03-878 +++$+++ 9169 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ He would be an applicant for admission, and the -- I -- I believe -- I believe I'm correct on that.
03-878 +++$+++ 9170 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Suppose he says, I don't want to apply for admission. I just don't want to be locked up.
03-878 +++$+++ 9171 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ The act treats him as an applicant for admission under 1225(a)(1). Mr. Chief Justice, if I may
03-878 +++$+++ 9172 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ Very well, Mr. Kneedler. Ms. Dahl, we'll hear from you.
03-878 +++$+++ 9174 +++$+++ FALSE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Because the same words mean the same thing in the same statute, this Court need not reach the constitutional questions presented by the indefinite detention of inadmissible as opposed to deportable aliens. Without going to questions of constitutional doubt, there are three reasons why this Court should hold that section 1231(a)(6) treats inadmissible aliens the same as it treats deportable aliens.
03-878 +++$+++ 9175 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Before you get to that, do you think that that's the only statute applicable here? What about 1182(d)(5)? What's your response to the Government's assertion that that's an independent basis?
03-878 +++$+++ 9176 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, I don't believe it provides an independent basis for detention. The immigration law works together in it's various elements, and section 1182, when parole is revoked, treats the alien then as an applicant for admission, and section 1229 places the applicant for admission into removal proceedings. The Government did not obtain a ruling on that argument from the Ninth Circuit, although it made reference to 1182 in its motions to stay the briefing schedule. It ultimately conceded that this case was controlled by Lin Guo Xi, which was a statutory construction of 1231(a)(6), and cert was granted on the 1231(a)(6) issue only. The reading of the statute that we proffer, that the same words mean the same meaning, is consistent with the overall changes Congress made in 1996 in IIRIRA when it eliminated the category of excludable aliens and replaced it with a single, broader category, now called removable aliens, that embraces both inadmissible and deportable aliens. Third, Congress knows how to provide for indefinite detention when it wants to.
03-878 +++$+++ 9177 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, how do you explain then, Ms. Dahl, the language in the Court's Zadvydas opinion that had, were we dealing with, in effect, off-shore aliens, this would be a much different case?
03-878 +++$+++ 9178 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe it would present a different question, but the constitutional issues presented by indefinite detention remain. The Court doesn't need to reach those --
03-878 +++$+++ 9179 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you say that a person, even though they're not lawfully admitted into the United States, still couldn't be indefinitely detained.
03-878 +++$+++ 9180 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, that is our -- our point precisely. The Government was not correct when it said that it -- that this Court has always treated excludable aliens the same. In a case that was a contemporary of the Mezei decision, Kwong Hai Chew, cited at page 45 of our brief, the Court found that an excludable entrant on Ellis Island was entitled to --
03-878 +++$+++ 9181 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the Government distinguishes that case. What do you make of their distinction?
03-878 +++$+++ 9182 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We disagree. I think that it shows that the Court will consider length of time in the country in determining what amount of due process is required. Now, the plain language of the statute of 1231(a)(6) requires the same treatment between inadmissible and deportable aliens. Where there's no difference in the language that Congress has used, this Court can draw no distinctions. There is a presumption that Congress expects its statutes to be read in the same manner as the Supreme Court's interpretation, and because of the interrelationship between the parole statute and the revocation proceedings and removability proceedings, there's no reason for this Court to resort to the 1182 statute to provide the authority that the Government seeks. The relevant authority is section 1231(a)(6).
03-878 +++$+++ 9183 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, what do you think we should do with the 1182? Because suppose you prevail on your argument that it's the same statute, the same word, it can't be construed differently under 12-whatever, and the Government says fine. We now go to the other string in our bow and we continue to detain this person on the basis of 1182(d)(5)(A).
03-878 +++$+++ 9184 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the 1182(d)(5)(A) doesn't provide for indefinite detention. What it provides is that upon revocation of parole, the alien is placed into removal proceedings. Once the removal proceedings have been determined and a final order of removal is entered, 1231(a) requires removal within 90 days, and failing that, the appropriate -- the relevant statutory provision is 1231(a)(6). That says that the alien may be detained beyond the removal period and then, if released, subjected to conditions of supervision. 1231 is the only statutory authority for post-removal period detention. Parole deals with entry and 1231(a)(6) --
03-878 +++$+++ 9185 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, but you haven't answered, I think, the question of whether the Government is entitled in this case, if we dispose of the 1231 question, to resort to the other statute.
03-878 +++$+++ 9186 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that the Court could carve out a statute and use it in a way contrary to the way it functions in the immigration scheme and make superfluous or irrelevant a more express, more detailed statutory provision.
03-878 +++$+++ 9187 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, what you're saying is that even if 1182 comes first, 1231 comes second.
03-878 +++$+++ 9188 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Precisely, Your Honor. And I don't think that the Government could revoke parole and then suspend proceedings to determine the admissibility of a parolee indefinitely.
03-878 +++$+++ 9189 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But still, is this another -- could -- could we do this? I noticed that -- that your -- the petition for cert in Benitez has two questions, both of which are about interpreting 1231(a)(6). The Government's petition, though not its brief -- the Government's petition in Crawford says the question presented is whether 1231(a)(6) in Zadvydas compelled a release. So this other -- this other matter is a totally -- seen as a totally separate ground. Perhaps the thing to do is we send it back, and if they want to raise it, they can raise it, and it would be up to the circuit to decide whether they had preserved it or not preserved it. Is that -- is that a sensible thing?
03-878 +++$+++ 9190 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so because I don't think that 1182 allows the interpretation that the Government --
03-878 +++$+++ 9191 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And that's your view of -- of what 1182 means, and they're going to have a different view. If they want to argue their different view, they could do it in the Ninth Circuit. If they've waived it, they've waived it, and that's up to them, not up to us.
03-878 +++$+++ 9192 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What the Ninth Circuit found, though, in questions of an inadmissible alien, that this Court's construction of 1231(a)(6) in Zadvydas applied and there would be no need for resort to any other statute.
03-878 +++$+++ 9193 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask if you believe the supervision after the 90-day period covered in subparagraph 3 -- is there -- can that continue indefinitely in your view?
03-878 +++$+++ 9194 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. While the alien is awaiting removal, he is subject to supervision conditions that will safeguard the Government's interests, and for as long as he is waiting, he is under supervision. It's those supervision conditions that distinguish this case from the situation where the Government is finding national security risks. That -- Congress has expressly provided for the indefinite detention of people whom the Attorney General certifies as presenting risks to national security. It's also the presence of a national security risk that distinguishes this case from the Mezei decision. I think that the Government makes more of that decision than needs to be made in order to find that Mr. Benitez and Mr. Martinez are in different situations. They were allowed into this country. They have lived here for 24 years, and --
03-878 +++$+++ 9195 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How long had the -- the detainee in, however you pronounce it, Mezei lived in the United States?
03-878 +++$+++ 9196 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Mezei had been in the United States for 25 years before he left, and he was gone for an extended period of time. When he sought to return, he was treated as if he were an initial entrant, and the Government, citing national security, excluded him without a hearing and refused to disclose the evidence that was the basis for the exclusion. He challenged that and wanted a hearing and wanted the Attorney General to be required to disclose the evidence. The Court found that his release into the community itself would present a security risk and therefore sustained the denial of the hearing and the detention of Mr. Mezei.
03-878 +++$+++ 9197 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I don't think it really said they -- they found there was a security risk. They -- they held the Government did not have to explain because the man had no right to come in.
03-878 +++$+++ 9198 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
03-878 +++$+++ 9199 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What's -- what's your best answer to the Government's argument that unless you treat this case differently from Zadvydas, at least for purposes of reasonable time or reasonable interest, which affects time, the United States is basically defenseless against countries that -- that want to dump undesirable aliens and force them into the United States?
03-878 +++$+++ 9200 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that applying the statute, as it's written, leaves the Government defenseless.
03-878 +++$+++ 9201 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Because.
03-878 +++$+++ 9202 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Congress can pass another statute, if it needs to, and the Government --
03-878 +++$+++ 9203 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But it's defenseless under the present law?
03-878 +++$+++ 9204 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I disagree. We have --
03-878 +++$+++ 9205 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Then what is the defense?
03-878 +++$+++ 9206 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We have very effective means of interdicting --
03-878 +++$+++ 9207 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What are they?
03-878 +++$+++ 9208 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, after the Mariel boatlift, the Government changed its policy and now intercepts people who are coming from Cuba by boat and detains them at Guantanamo Bay, does a screening, and has a more effective repatriation process for people that they do not want to come in.
03-878 +++$+++ 9209 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You want us to take --
03-878 +++$+++ 9210 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So you're saying they can actually exclude, in practical terms.
03-878 +++$+++ 9211 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. That's exactly what --
03-878 +++$+++ 9212 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You want us to take judicial notice that the Mexican border and American border is impervious? (Laughter.)
03-878 +++$+++ 9213 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that would present a different question. As the Government acknowledged, people who come into the country without inspection are entitled, under the Government regulations, to the protections under Zadvydas. And --
03-878 +++$+++ 9214 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And there's no -- and -- and there's no answer to Justice Souter's question with regard to people who -- who -- once they enter that way. Right?
03-878 +++$+++ 9215 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the Government has --
03-878 +++$+++ 9216 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Except a new statute.
03-878 +++$+++ 9217 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Congress has -- has, by definition, treated those people as inadmissible aliens who are subject to removal proceedings. And the interdiction methods are -- they're purely political decisions that the Government needs to make.
03-878 +++$+++ 9218 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But they -- in any case, those individuals are not the subject of sort of dumping action by their own governments.
03-878 +++$+++ 9219 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
03-878 +++$+++ 9220 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Does the -- Congress has passed a special statute with respect to terrorism, hasn't it, where it does authorize detention of any of these people who are engaged in terrorism. Now, I don't know how that's defined. Is that defined to relieve in a way that's broad enough to relieve some of the problem?
03-878 +++$+++ 9221 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if -- well, first of all, the Government has the ability to detain, pending the removal proceedings, of people who are trying to come into the country. The question becomes if they can't be repatriated. Now, the Patriot Act in 1226(a) does allow, in instances of national security, for the Attorney General to indefinitely detain. Now, importantly, that statute provides for procedural protections and judicial review, that is absent from --
03-878 +++$+++ 9222 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But are -- are the people here charged with any sort of terrorist activities? They were committed -- convicted of crimes, but I -- I didn't think they were connected with terrorist activities.
03-878 +++$+++ 9223 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. The Government has not made any allegation that there's --
03-878 +++$+++ 9224 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Just normal, harmless criminals.
03-878 +++$+++ 9225 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
03-878 +++$+++ 9226 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right? (Laughter.)
03-878 +++$+++ 9227 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Their release from prison presents the same issues that the release of any person who has served the sentences that were imposed after the commission of a crime.
03-878 +++$+++ 9228 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, except that with aliens, they can be deported, whereas a citizen can't be, upon release from prison.
03-878 +++$+++ 9229 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. And the conditions of supervision that the Government can impose are much lengthier and could be even more onerous than the kinds of supervision conditions after prison that the Government could impose on its citizens. In this case, Mr. Martinez and Mr. Zadvydas both received permission to live here. Both committed crimes. Both served their sentences and both were ordered removed. Nothing in section 1231(a)(6) warrants making Mr. Martinez wait for removal in a Federal prison perhaps for the rest of his life, while Mr. Zadvydas awaits removal after having been released --
03-878 +++$+++ 9230 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought the other person was named Benitez. I thought we had Zadvydas in the other case. Do we have two, a Martinez and a Benitez, here?
03-878 +++$+++ 9231 +++$+++ TRUE +++$+++ MS. DAHL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. I was drawing a comparison between the situation with Mr. Zadvydas and Mr. Martinez. Detention, of course, needs to be reasonably related to its purpose. Here removal cannot be achieved. So detention for that purpose becomes arbitrary and punitive, and we'd ask the Court to affirm the grant of habeas corpus and Mr. Martinez's release on supervision conditions.
03-878 +++$+++ 9232 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Dahl. Mr. Mills, we'll hear from you.
03-878 +++$+++ 9234 +++$+++ FALSE +++$+++ MR. MILLS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: I think that we have lost sight of the statutory scheme that applies here. Section 1182(d)(5)(A) is not a detention statute. It's clearly not preserved as an initial matter. It was not in the answer to either habeas petition. The justification given in the district court in both cases was 1231(a)(6). But, Justice Breyer, there is no need to remand this case because a clear, simple reading of the immigration statutes demonstrates that 1182 is not a detention statute. You have to go through the process, and I attempted to do this in my reply brief, but I think I can do it a little bit more clearly for the Court this morning. When an alien first arrives, he's an applicant for admission. Section 1225(b)(2)(A) of title 8, United States Code says an applicant for admission -- any applicant for admission shall be detained until the removal proceeding unless it is clear, beyond any doubt, that they are entitled to come in. So all aliens, when they apply -- that's the detention statute that initially applies, 1225(b)(2)(A). They are to be detained until there is a removal proceeding. The removal proceeding, which is governed by 1229(a)(1) -- I'm sorry -- 1226(a) -- it is 1229(a) -- is to determine whether the alien is admissible or not, whether they should come in or whether they must be removed. So 1225(b)(2)(A) says detain until that point. 1182(d)(5)(A) then comes in to authorize the Government to stop that process for humanitarian reasons and parole an alien in. We won't have the removal process. We're going to -- we -- we're going to get out of the detention in 1225(b)(2)(A), and we're going to let you out on parole, which is discretionary. That's 1182(d)(5)(A). If at any time, we in our discretion think it is no longer appropriate to keep you on parole, we can revoke that parole, and the statute 1182(d)(5)(A) says once parole is revoked, the alien is treated as, quote, any other applicant for admission. So you go back to 1225(b)(2)(A), which says detain them until the removal proceeding.
03-878 +++$+++ 9235 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you -- you skipped a -- a phrase. It says when the Attorney General is of the opinion that the purposes of the parole justify nothing more, the individual shall return or be returned to the custody from which he began. And their argument is that custody is different in these cases.
03-878 +++$+++ 9236 +++$+++ TRUE +++$+++ MR. MILLS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That custody is the custody under 1225(b)(2)(A). That is the statute that authorizes the custody. That's what they're being returned to. 1225(b)(2)(A) is detention until the removal proceedings. And in the Demore v. Kim case, this case -- this Court said that even if it's a long time and there aren't other procedures in place, you can be detained until your removal order is entered because -- and -- and the emphasis was there's an end date to that. So there's an end date to detention under (b)(2)(A), 1225(b)(2)(A), and it's the removal proceedings. Section 1231 is the statute that governs removal and says, okay, now what happens? It says you have to remove within 90 days, but for certain aliens who've committed crimes or are inadmissible or are otherwise determined to be dangerous, we can detain them beyond. It says may be detained beyond the period. That is the only statute that authorizes any detention of an alien after a removal order other than the specific terrorist statute, 1226(a), which was enacted, which does not authorize indefinite detention. It says -- it has a paragraph labeled indefinite detention, and it says the Government shall not indefinitely detain a terrorist alien that it cannot remove except that if the Government determines -- and -- and it appears to put the burden on the Government -- that the person is a danger to national security or the community, it can detain them for another 6 months. And then you -- you could have indefinite detention, but each time, each 6 months, the statute provides for review. So not only do the sneakers, the aliens who cross across the border in the -- in the dark of night from Mexico or wherever -- not only do they under the Government's own admission have the Zadvydas rights, so too do terrorist aliens by statute. And to suggest that by some implication Congress has intended to authorize the indefinite detention of people that we thought we should welcome into our country, even though we didn't have the ability under our quota system and under our current regulations in 1980 to let them in, somehow they have no rights against indefinite detention. For the Government to --
03-878 +++$+++ 9237 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How do you -- how do you answer the Government's argument that this is necessary, that the United States shouldn't effectively be punished for being humanitarian, and if we can't hold these people, if we're forced to let them in, then any rogue nation can dump anyone it wants on the United States and we can't stop it?
03-878 +++$+++ 9238 +++$+++ TRUE +++$+++ MR. MILLS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. Justice Ginsburg, that's their sole policy argument, and frankly, it doesn't hold water. Just yesterday in the Jama case, the Government took the position that if Mexico flooded -- flooded our borders with illegal aliens who we could not detain, we know under their own regulations, if they snuck in, we couldn't detain them, but if a new Mexican -- there was a Mexican dictator and he flooded our borders, could we forcibly repatriate them? And the Government said absolutely we can. We can go down and put them back in Mexico. We could do that with the Cubans. We could let them out the gate at Guantanamo Bay. If a -- a rogue nation truly invades our country with its bad aliens, that is an infringement on our sovereignty, and I think that's an act of war. And I think the President has all kinds of options: trade sanctions, go to the United Nations, diplomacy. If it's really something bad that's going to be a -- a threat to our national security, I think --
03-878 +++$+++ 9239 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you -- you might wait a while if you went to the United Nations or -- (Laughter.)
03-878 +++$+++ 9240 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- or to -- I take it the Government feels you need some sort of a rather immediate recourse.
03-878 +++$+++ 9241 +++$+++ TRUE +++$+++ MR. MILLS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure, and our Government has demonstrated that it believes in preemptive -- preemptive action and we can go in and have regime change in Cuba if it -- if it is such a threat. If it's a political decision, the purely executive decision, that our national security is so threatened, they have all kinds of tools.
03-878 +++$+++ 9242 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But this -- this regime is not sending, you know, an armed flotilla to Florida. They just -- (Laughter.)
03-878 +++$+++ 9243 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- they just open their jails and say, hey, you know, go wherever you want. And these people say I want to get out of here, and they go to Florida. You -- you want us --
03-878 +++$+++ 9244 +++$+++ TRUE +++$+++ MR. MILLS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That was less than 1 percent --
03-878 +++$+++ 9245 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- to bomb Cuba because of that.
03-878 +++$+++ 9246 +++$+++ TRUE +++$+++ MR. MILLS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That was less than 1 percent of the Cubans who came in the Mariel boatlift. That did occur, and we do have options for dealing with them. We can return them forcibly. If they don't allow us, that's like them sending a missile. It's -- we -- we can destroy the missile. We can't destroy a human being. By punishing a human being that Castro sends over, we're not sending a message to Castro. We're not saying, ah, you sent your prisoners over here and were going to indefinitely detain them. Mental torture. That will teach you. That's --
03-878 +++$+++ 9247 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What you -- what you mean when you say we can forcibly return them is literally we can take them to Guantanamo, take them to the gate, and push them out?
03-878 +++$+++ 9248 +++$+++ TRUE +++$+++ MR. MILLS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's one option. If there -- if the Cuban army is there to prevent us, you know, maybe it would require some military action that the administration might decide is not advisable. But those are the options depending on the size of the threat. So a judicial interpretation that the statute means the same thing in all contexts does not deprive the Government of anything. And I'd like to go back to that if I could.
03-878 +++$+++ 9249 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought -- maybe I -- I misunderstood you, but I thought that one of your points were even assuming that we couldn't send these people back into Cuba without having a major conflagration, the rogue dictator is not going to be deterred by our tossing even into the sea the people that he doesn't want.
03-878 +++$+++ 9250 +++$+++ TRUE +++$+++ MR. MILLS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that is my point. That's the point that I -- I intend to make, that indefinitely detaining these people -- that does nothing to a dictator. That does nothing to deter a dictator. All it means is we're going to be incurring the huge cost of incarcerating a large number of people, and if anything, that may encourage the dictator to do exactly that, or it may encourage the dictator, instead of sending them to Key West on boats -- on American boats, to sneak them up on speed boats or take them through Mexico and sneak them across the border that's --
03-878 +++$+++ 9251 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Anyway, it's a little drastic. I -- I guess that before this happens, Congress might enact a statute like the terrorist statute.
03-878 +++$+++ 9252 +++$+++ TRUE +++$+++ MR. MILLS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly. That -- that is exactly correct, Justice Breyer. And if they think -- whether a -- a Cuban, a Mariel Cuban, can be put in jail -- and these are in prison for the rest of their life -- is a huge policy decision. And this Court should abstain from putting its voice as -- on to the answer. That is a decision for Congress in the first place. In Zadvydas, this Court said the statute doesn't clearly do that, so we're not going to -- we're not going to answer that question as to whether it would be constitutional.
03-878 +++$+++ 9253 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it's a policy decision either way. I -- I suppose if Zadvydas had come out the other way, the Congress could have responded as well.
03-878 +++$+++ 9254 +++$+++ TRUE +++$+++ MR. MILLS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. But in -- in this case, because especially the Zadvydas aliens had clear constitutional rights, we avoid the question. The doctrine of constitutional avoidance says the Court doesn't engage in that. The default is to stay away from it. If Congress wants to do something that might be unconstitutional, they can come back and do it and then the Court will determine whether it's unconstitutional. Back to the point of whether 1231(a)(6) can mean something different for the two groups of aliens. Never before has this Court taken a statute that --
03-878 +++$+++ 9255 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How do you explain, Mr. Mills, the language that the Court used, pointing out how different this kind of a case would have been from the -- from the Zadvydas case?
03-878 +++$+++ 9256 +++$+++ TRUE +++$+++ MR. MILLS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure. My reading of that -- of that decision, there were two parts of the decision. There was part one, which examined whether there is a -- or it determined whether the statute is ambiguous, and part two is whether there's a constitutional error. It was only in the part of the decision deciding whether there's a constitutional problem that the distinction was made. The distinction makes the difference in whether there's a problem or not. And maybe there's not a problem for inadmissible aliens. So, the Court then concluded in Zadvydas that because there's a problem, we look at the statute. This statute could be interpreted to authorize indefinite detention or not. It's ambiguous. Because we have a problem, at least with one category, we're going to choose the -- a safe route.
03-878 +++$+++ 9257 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It might have been a -- a means of warning Congress off one area, but not the other. That is to say, just because we think there's a constitutional doubt here and therefore Congress might be sailing close to the wind if they tried to overrule our opinion by statute doesn't mean that Congress couldn't in this other area alter the result in Zadvydas.
03-878 +++$+++ 9258 +++$+++ TRUE +++$+++ MR. MILLS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that that is absolutely a -- a conclusion that can be drawn that Congress --
03-878 +++$+++ 9259 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Of course, I dissented in that case. So I'm not saying this was a good idea. (Laughter.)
03-878 +++$+++ 9260 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it -- it's interesting. In -- in just my -- for my -- my own information, then Congress did respond. And there were two areas in Zadvydas that, you know, didn't warn Congress off. One is the one we're talking about now. The other is terrorism. And Congress responded in the terrorism matter. Is that right? But they didn't do anything on the --
03-878 +++$+++ 9261 +++$+++ TRUE +++$+++ MR. MILLS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely correct. And they're responding right now. In the 9/11 Commission bill, there is a section that's being negotiated as to whether terrorist aliens who can't be removed because they would be tortured -- whether they can be indefinitely detained. And they're looking at the same limiting language. One point that I'd like to make that I did not get to make directly in the brief, but it was raised. Justice Scalia, you had a question yesterday in the Leocal case, and it -- it raised an issue that I hadn't looked at before on whether a statute can be interpreted differently in a situation where the reason to interpret it is no longer there. And that's the rule of lenity cases. And I cited as a supplemental authority the United States v. Thompson/Center Arms Company, 504 U.S. 505. It's a 1992 decision, and it involved a tax code provision. And the question is, do we apply the rule of lenity? And Justice Stevens, in dissent you said no, because this is a civil case. The rule of lenity doesn't apply. But a three-judge plurality, an opinion by Justice Souter, and a two-justice -- two-judge concurrence by Justice Scalia both agreed that the rule of lenity applied because the statute applies both in criminal and civil contexts. And you can't have one meaning in a criminal context and another in civil. For the same reason, the rule of constitutional avoidance should not result in a statute being interpreted one way when there would be a doubt and another way when there would not.
03-878 +++$+++ 9262 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, what about the argument that the statute, in effect, limits the -- our -- our interpretation limits the -- the detention to a period reasonably related to the Government's interest in accomplishing that interest? That interest is different in -- in the case of -- of aliens who are excluded, if we accept that class as distinct from all excludables. And -- and that may allow a much longer period of detention, among other things, to deter dictators from -- from dumping. You've given us an answer to what to do if they dump, but we don't want them to dump in the first place. That argument stops short of saying we can detain them for life, but it would support the -- the position that on a consistent interpretation of the statute, the Government could detain them longer in the excluded cases than in others. What's your answer to that?
03-878 +++$+++ 9263 +++$+++ TRUE +++$+++ MR. MILLS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My answer to that is that that might be a -- a legislative policy decision to make that distinction. But in 1996, IIRIRA abolished the distinction between inadmissible and deportable aliens after they've been ordered removed. Up until that time, it makes a difference. It makes a difference under the Constitution. But once they've been ordered removed -- and this was the Government's argument in Zadvydas. Once they've been ordered removed, regardless of how they got here in the first place, they no longer have any right to be here at all and --
03-878 +++$+++ 9264 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There is only one class of excludables by the Government's own choice. That's -- that's basically your answer.
03-878 +++$+++ 9265 +++$+++ TRUE +++$+++ MR. MILLS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ After a removal proceeding, there is only one class. That is correct.
03-878 +++$+++ 9266 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
03-878 +++$+++ 9267 +++$+++ TRUE +++$+++ MR. MILLS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If there are no more questions, I would just ask that the Court reverse in this case. If there are any mootness concerns about Mr. Benitez, I would refer the Court to Friends of the Environment which said that when a challenged practice has stopped voluntarily, that does not moot a case out in the Supreme Court unless there's some reason to believe they won't go at it again. And the Government has asserted that it can revoke his release at any time for any reason and detain him indefinitely. And the suggestion that the fact that he's been released under the Cuban Review Panel shows that his -- he's been protected is -- is not well taken. He was determined, when he first was detained in -- in 2001, that he was eligible under the Cuban Review Panel to be released. It took 3 years and the week before this case was argued in the highest court of the land before the Immigration Service did what its own regulations told it it had to do. Thank you very much.
03-878 +++$+++ 9268 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Mills. Mr. Kneedler, you have 4 minutes remaining.
03-878 +++$+++ 9270 +++$+++ FALSE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. Justice Souter, you're exactly right in terms of why the statutory construction or statutory application of the terms in Zadvydas does not control here. The Court's starting point -- again back to page 682 of its opinion, it says, we deal here with aliens who were admitted. The way the Court dealt in the opinion was a matter of statutory construction, and it did it by reading into the statute a reasonable time limitation. What is reasonable for aliens who -- who have been admitted and are subject to what were called deportation is different from aliens who were stopped at the border. And in fact, in the -- in the Court's statutory analysis, it looked to the point that in the Witkovitz jurisdictional statement referring to Congress' constitutional doubts about detention of more than 6 months, those were constitutional doubts about people who were being deported after having been allowed to be here. There has never --
03-878 +++$+++ 9271 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What's your -- what's your answer to Mr. -- Mr. Mills' position that the Government has, in fact, statutorily waived that distinction by creating one class of excludables?
03-878 +++$+++ 9272 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- with respect -- with respect, it has not. And -- and if I could -- if I could explain this. This -- going back to Mezei, this Court held and in fact rejected a very similar argument. The rationale of the court of appeals in Mezei was that deportable aliens are subject to an express, not an implied, 6-month limitation. And the court of appeals said the aliens in that -- the alien in that case, once he couldn't be removed to another country, should be released because the purpose of keeping him to return him to another country was no longer being served. This Court rejected that argument, even though there was a statutory express limitation of 6 months for deportable aliens, held that an alien who had been on Ellis Island for 2 years did not have to be released. In reliance on that decision, Congress passed the parole statute to leave the release in -- excuse me -- Mezei was after it, but the -- the executive branch has relied on that rationale. The Cuban review regulations that are at issue here have been in place for 15 years under the parole statute. As Congress well knew, when it acted in 1996, the -- this program was the subject of many hearings in Congress. There were cases -- the Barrera case out of the Ninth Circuit sustained a 10-year detention of a Mariel Cuban. It is implausible to believe in 1996, when Congress enacted IIRIRA, that it intended to cut back on the longstanding power of the executive branch to prevent hordes of aliens from coming into our country and to impose an arbitrary 6-month limitation. I -- I think there's no argument that if an alien is detained before removal proceedings are begun, that there is no 6-month limitation. His release is entirely up to the Attorney General under the parole regulations. It's -- it's implausible to believe that once Congress actually enters a formal order of exclusion or now removal against an alien, the person is no longer in an ambiguous situation, the executive branch says you're not eligible, that suddenly that person who has been formerly found not eligible, would be subject to a 6 month limitation that did not apply up until '96 and doesn't even apply until these -- to these aliens until removal proceedings have been begun. So the right way to look at this statute as what's a reasonable time under 1231(a)(6) has to take into account that historic background of the United States being able to protect its borders. And there is no indication whatsoever that Congress intended to overrule this longstanding program for Mariel Cubans, which has operated, as I said, for 15 years.
03-878 +++$+++ 9273 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Kneedler. The case is submitted.
03-892 +++$+++ 9277 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument in two cases, the Commissioner of Revenue -- Internal Revenue against Banks and the Commissioner against Banaitis. Mr. Salmons.
03-892 +++$+++ 9279 +++$+++ FALSE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens, and may it please the Court: Section 61(a) of the Internal Revenue Code defines gross income to include all income from whatever source derived. As this Court has held, that definition is sweeping and represents an intent by Congress to exert the full measure of its taxing power. The court of appeals decisions below, by excluding from respondent's gross income the portion of litigation proceeds paid to their attorneys under contingent fee agreements, is inconsistent with two longstanding Federal tax law principles for defining gross income.
03-892 +++$+++ 9280 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, if -- if this didn't involve the alternative minimum tax, would the amount be deductible?
03-892 +++$+++ 9281 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, but for the alternative minimum tax, there would be an -- a miscellaneous itemized deduction --
03-892 +++$+++ 9282 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- under section 212 of the code --
03-892 +++$+++ 9283 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that would be subject to the limit of the 2 percent of adjusted gross income that applies to itemized deductions. But section 56(b)(1)(A) --
03-892 +++$+++ 9284 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's of annual income. Right? 2 percent of -- of the person's annual income?
03-892 +++$+++ 9285 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of the adjusted gross income.
03-892 +++$+++ 9286 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ For the year.
03-892 +++$+++ 9287 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For the year. That's correct, Your Honor.
03-892 +++$+++ 9288 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, gee, in the case of a -- of a major award, that 2 percent is very likely to be exceeded, isn't it?
03-892 +++$+++ 9289 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it certainly may, Your Honor.
03-892 +++$+++ 9290 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So this is a problem that's going to exist even -- even after the alternate minimum tax is abolished. Right? (Laughter.)
03-892 +++$+++ 9291 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure entirely what you're referring to as the problem, but it is the case that -- that --
03-892 +++$+++ 9292 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you don't think -- the Government doesn't think it's a problem. I'm talking about taking a huge percentage of the -- of the person's recovery. That -- that will happen even -- even in the case where there's no minimum tax -- alternative.
03-892 +++$+++ 9293 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. That -- that is correct, Your Honor. Now, I mean -- and let me make two points about that. The first is that as a -- as a general matter, the tax code defines gross income expansively, and there's a number of this Court's cases that make that clear. Then -- then the question becomes are there deductions provided that allow for certain expenses to be deducted.
03-892 +++$+++ 9294 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Don't some States such as Oregon require a plaintiff to remit a portion of punitive damages recovered to the State so they don't even go to the taxpayer? But is the taxpayer saddled with that too?
03-892 +++$+++ 9295 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I would think the answer to that question is no. It's not a question that I have examined in depth in -- in this case because it's not presented, but as a general matter --
03-892 +++$+++ 9296 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what about attorney's fees in class actions? As I understand it, those are not regarded by the Government as attributable all to the taxpayer.
03-892 +++$+++ 9297 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor --
03-892 +++$+++ 9298 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ A plaintiff who's part of a class in a class action suit where attorney's fees are paid.
03-892 +++$+++ 9299 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we believe that the same principles would apply to class action lawsuits as to other lawsuits in terms of the taxation of litigation proceeds. It may very well be the case in a number of class action contexts that when applying those principles, the proper -- the proper analysis leads to the conclusion that the taxpayer doesn't exert sufficient control and that the payment of attorney's fees is not in response to a debt owed by the taxpayer. And so there might be a different result.
03-892 +++$+++ 9300 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I -- I thought we were -- our attention was pointed to a number of instances where the Internal Revenue Service did not require the taxpayer to show all the attorney's fees as income in those class action situations.
03-892 +++$+++ 9301 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, that is correct.
03-892 +++$+++ 9302 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
03-892 +++$+++ 9303 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I want to be clear. We think the same principles apply across the board to defining gross income. In applying that in a number of class action contexts, the proper answer may be that it's not included in gross income because there wasn't sufficient control and because it wasn't paid in -- in lieu of a debt owed by the taxpayer. But here --
03-892 +++$+++ 9304 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why -- why isn't there as much control in each case? I mean, the -- somebody goes to a lawyer with a claim and says, press the claim for me, recover if you can. What's the difference in -- in terms of control? So that if you win this case, why doesn't it apply to class action?
03-892 +++$+++ 9305 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Again, the principles would apply and there may very well be class actions --
03-892 +++$+++ 9306 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, and I -- I want to know why the result would be different.
03-892 +++$+++ 9307 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Again, I'm -- I'm trying to be as specific as I can. There may be situations in which, even in the class action context, there's a fee agreement between the -- the class member and the lawyer so that the payment of attorney's fees is in satisfaction of a debt owed by the class member, and in that situation we think that it would be --
03-892 +++$+++ 9308 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why -- why would -- why would that analysis appear? Certainly there's -- there's not going to be any fee paid in the -- in the paradigm example of the class action without a recovery.
03-892 +++$+++ 9309 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. There -- there are situations --
03-892 +++$+++ 9310 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So we're in the -- so we're in the situation we're in right now, aren't we?
03-892 +++$+++ 9311 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We are in the situation in which there's a need to apply the general principles for defining gross income.
03-892 +++$+++ 9312 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. But let me just -- I'll just press the point one more time. I don't understand, based on what you've said, why the class action result would be different from the result that you're arguing for here if you win this case.
03-892 +++$+++ 9313 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and what I'm trying to point out, Your Honor, is that there may very well be class actions where it's not different. There may be some when -- where it is if it's the case that there's no contractual obligations to pay the fee -- pay the fee between the class member and the attorney, and if it's the case that the class member really exerts no meaningful control over the -- over the attorney's fees portion --
03-892 +++$+++ 9314 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought the class action distinction that the commissioner had was between opt in and opt out.
03-892 +++$+++ 9315 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is certainly one of the factors that -- that the commissioner has looked to in those class --
03-892 +++$+++ 9316 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So if you opt in, then you did exercise control. So all the money is yours. But if you opt out, you didn't have control over the suit because you didn't opt out. I mean, you just were lethargic.
03-892 +++$+++ 9317 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Again, those are all facts --
03-892 +++$+++ 9318 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's the basic thing. I mean, I'm trying to understand what the principle is for the reason that it's pretty hard for me to reconcile the commissioner's view in the class action case with the punitive damage case because there the person has control over the lawsuit. So why doesn't all the punitive damage, attorney's fees that come out of that, and so forth belong to -- in other words, it sounds to me, as I read this, something of a mess, and I'd like to know what the clear principle is.
03-892 +++$+++ 9319 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. And -- and just to be clear, I -- I don't think the commissioner has ever taken the position that all class actions don't present the -- the possibility of the attorney's fees portion of the award being included in -- in the class member's gross income. Now, there are real enforcement issues, as a practical matter, to trying to -- to trying to implement that. You can imagine a number of class actions --
03-892 +++$+++ 9320 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ When you say the class member, do you -- you mean the named representative. The class may include thousands of people, but it would be income to the named representative? Is that --
03-892 +++$+++ 9321 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, presumably, Your Honor, that -- only the portion of the attorney's fees that would be attributable to the -- the named representative's recovery would be included in the named representative's gross income. I don't think that the named representative would be on the hook, if you will, for all of the attorney's fees that would relate to other class members' recoveries. But I think what all this points out is that --
03-892 +++$+++ 9322 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, then -- then would it be -- would the income then go to each class -- would each class member have a share of the income?
03-892 +++$+++ 9323 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In a number of instances, yes, Your Honor. Again, the -- the way that we think that class action cases should be resolved is the same way that -- that these issues are approached in all cases, which is to look at the type of relationship that exists between the -- the client and the attorney to see whether the payment is made in -- in response to a debt owed by the client and also to look to the degree of control that the client has over the -- the underlying source of income. And in this context, it is --
03-892 +++$+++ 9324 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose -- suppose the same amount were paid, as was paid here, to the attorney, but it was not by way of a contingent fee, that the -- the client had committed to pay this dollar amount in a dollar amount.
03-892 +++$+++ 9325 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As a flat fee?
03-892 +++$+++ 9326 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ As a flat fee. What -- what would the tax treatment of that be?
03-892 +++$+++ 9327 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think in fact it is undisputed in -- in the -- in these cases that if the payment of attorney's fees had either been under an hourly rate arrangement or a flat fee arrangement, that the entire amount of the litigation proceeds would be included in the -- in the respondent's gross income and nothing about the contingent fee arrangements here should -- should alter that result. The respondents --
03-892 +++$+++ 9328 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, let -- let me ask you about Professor Davenport's theory. He filed a -- an amicus brief here saying that the contingency fee or the attorney's fees should be capitalized as a transaction cost increasing the basis of the property which was the claim in the lawsuit.
03-892 +++$+++ 9329 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I'm trying to recall that amicus brief. I believe that -- was that an argument, I believe, about the application of section 83 of the tax code when you have a transaction --
03-892 +++$+++ 9330 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
03-892 +++$+++ 9331 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in exchange for services and you provide property?
03-892 +++$+++ 9332 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
03-892 +++$+++ 9333 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We think that the better way to analyze this is that in fact there was no transfer of the underlying cause of action, and so we think that -- that we -- that gets into a very complicated area as to how you value the attorney's fees at the time.
03-892 +++$+++ 9334 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you -- you don't need a transfer of the -- I don't understand what you mean --
03-892 +++$+++ 9335 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, I don't either.
03-892 +++$+++ 9336 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- a transfer of the -- the cause of action. Certainly if you buy a piece of real estate and -- and there's lawyer's business connected with it, you -- you don't -- you don't take an ordinary deduction which is subject to the alternative minimum tax for those lawyer's fees. You just say that's part of the transaction, and it goes onto the basis of your property. Right?
03-892 +++$+++ 9337 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that's correct, Your Honor. But the point I was making --
03-892 +++$+++ 9338 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why isn't -- why isn't that very similar to this? I mean, what difference does it make whether there's a -- there's a transaction here, isn't there? Isn't there a transaction?
03-892 +++$+++ 9339 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there is an agreement to pay a fee for a service, and in that sense there is a transaction, yes.
03-892 +++$+++ 9340 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but a -- the service is connected to a transaction, namely the conversion of the chosen action into a money payment. You have this --
03-892 +++$+++ 9341 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that is correct.
03-892 +++$+++ 9342 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- this unformed chosen action. You're entitled to it, but there's a transaction converting it into a money payment. Now, why shouldn't you attribute to that transaction all -- which is profitable to you, all of the costs that go along with the transaction?
03-892 +++$+++ 9343 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, again, Your Honor, we think that transaction is essentially identical to numerous transactions that take place every day out in the real world where -- where taxpayers retain professional services in exchange for a commission or a percentage of the income that's generated.
03-892 +++$+++ 9344 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That is a problem that occurs to me. I don't know where you draw the line. And you say you can't draw a line.
03-892 +++$+++ 9345 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is absolutely correct. I don't see any basis for distinguishing between --
03-892 +++$+++ 9346 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How does it work?
03-892 +++$+++ 9347 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the attorneys here and -- and a -- and an agent negotiating a book contract for an author or a financial analyst.
03-892 +++$+++ 9348 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You -- on that, that example, you gave the book contract with the author and you gave, I think, the investor. Would this problem arise in those cases or would the author get an above-the-line deduction?
03-892 +++$+++ 9349 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. I believe that the author in those -- in that situation would receive the same deduction that prior to the enactment of section 703 of the American Jobs Creation Act where Congress just addressed in part the -- the issue raised in these cases --
03-892 +++$+++ 9350 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you say the author -- that these people are all in the same --
03-892 +++$+++ 9351 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They would have an itemized -- excuse me -- a miscellaneous itemized deduction for the cost incurred in -- in producing income that under the alternative minimum tax would not be allowed.
03-892 +++$+++ 9352 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is there any argument -- you -- you said at the outset that it has to be an itemized deduction subject to the two percent rule even if we set aside the alternative minimum tax. Is that conceded by everyone, or does somebody -- do some people say this is an ordinary and necessary expense? I know it's not your business, but it seems to me an ordinary and necessary expense to recover the -- the -- for employment discrimination, which is really part of your work. I don't know why -- is it -- does everybody agree that this is subject to the 2 percent rule?
03-892 +++$+++ 9353 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I will -- I will have to allow respondents to speak for themselves to that question, but as far as I'm aware, that is not in dispute in these cases or in any of the cases that have been litigated that -- that but -- that but for the alternative minimum tax, the way this would have been handled is that there would have been a miscellaneous itemized deduction under section 212 of the code for the cost incurred in producing income, and that the alternative minimum tax, along with, by the way, a large number of other perfectly valid deductions, get disallowed under the alternative minimum tax.
03-892 +++$+++ 9354 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I can't get out of my mind in this case that the mechanics of the particular case may control. I know we need a national rule and so forth. My recollection is that in some States when there is a settlement or a judgment paid under a case where there's a contingency fee contract, the check is made out both to the attorney and to the client and is put in the attorney's client's trust account. So the client never has control over it.
03-892 +++$+++ 9355 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
03-892 +++$+++ 9356 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let's assume that that's true in most of the States.
03-892 +++$+++ 9357 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that -- I know that were -- that was the facts, Your Honor, in the -- in the Banks case, that there was a check made out to both. In fact -- in fact, there was --
03-892 +++$+++ 9358 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So in a very real -- in -- in a very real sense, in a -- in the legal sense, the client just doesn't have control.
03-892 +++$+++ 9359 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, we disagree with that for, it seems to me, at least three reasons. The first is that at the time the client entered into the fee agreement, he certainly had control then. He had complete control over his cause of action. He was --
03-892 +++$+++ 9360 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, he -- he did or he didn't, but there was no money there. There was nothing there.
03-892 +++$+++ 9361 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there was an entitlement to recover. Now, there might have been a dispute as to the proper amount or whether that claim was valid, but he was entitled to recover based on the injury he suffered that was cognizable at law and that gave raise to a cause of action. Now, in exchange for legal services, he promised to pay a portion of the recovery to the lawyer. That is a promise to pay a fee. That is not an assignment or any other transfer of the underlying cause of action. And it is undisputed, I think --
03-892 +++$+++ 9362 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Salmons, doesn't the plausibility of your argument here rest on the assumption that what the -- that the cause of action at the time the -- that the plaintiff made the agreement with the lawyer is a cause of action which has the same value as the ultimate recovery that the lawyer gets? Whereas, in fact, the cause of action at the time of the agreement with the lawyer has an inchoate value. The -- the value that is actually realized is going to depend in part on the -- on the skill and -- and the -- the gumption of the lawyer. So that the -- what I'm getting at -- and -- and going to Justice Kennedy's question, it seems to me that the value realized as opposed to the right to sue are two different figures. And I don't see realistically how the client has complete control over the value realized, which we don't even know until the lawyer has done his work and gotten the check.
03-892 +++$+++ 9363 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, two responses to that question, if I may. The first is that, as a matter of law, it is the client that controls the cause of action and throughout the time period, even after they -- they enter into an -- a contingent fee agreement, it is the client that owns and controls the cause of action and he decides whether to settle. He decides whether to press forward or withdraw the case. He decides whether to fire the lawyer or not. He is a -- he controls the source of the income. Therefore --
03-892 +++$+++ 9364 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Even -- even the potential lawyer's fee. I mean, suppose this client has a major dental repair and he's got a risk-taking dentist, and he says, dentist, I'm going to give you a deal. I know you like to take risks. I may win big in my lawsuit, in which case you get everything; and I may lose, in which case you get nothing. The dentist says, fine, I'll take it. Can the client in that agreement with his dentist give what will be the lawyer's fee, the part that will go to the lawyer under the contingency fee agreement?
03-892 +++$+++ 9365 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, presumably, Your Honor, if he's already -- he's already promised that to the attorney, he would be in violation of his agreement with the attorney if he did so, and his attorney could sue him to recover or the dentist could sue him to recover.
03-892 +++$+++ 9366 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then he doesn't have -- then he doesn't have dominion over that portion.
03-892 +++$+++ 9367 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because he's -- he's given it away. In that sense I think -- and -- and in answering this, if I may just go back to one point that Justice Souter made and that is that I don't think it's the case that our analysis turns at all on how you value the claim, either at the time of the fee agreement or afterwards. Our analysis says at all relevant times, regardless of whether the value changed or not, the client was at all times in control of the underlying source of income, and it's just as if in Helvering v. Horst the father assigns the -- the bond coupon to his son, but he controls the underlying source of income.
03-892 +++$+++ 9368 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but the bond coupon has a certain value at the time the father assigns it.
03-892 +++$+++ 9369 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true.
03-892 +++$+++ 9370 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The only thing that has to be realized after the assignment of the coupon is the passage of time at which it will be payable. Here we do not have a definite value. We don't know -- there's no way to know for sure what that value will be until the lawsuit is over with. The -- the two are not comparable.
03-892 +++$+++ 9371 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, that would be equally true of an assignment of a stock dividend while I retain the stock. I may not know what the dividend payment is going to be, but if I control the underlying source of income, i.e., the stock, then the transfer to someone else of the dividend doesn't alter the incident of tax, even if it's unknown. And I would point out that in Lucas v. Earl, the husband and wife in that case entered into agreement to assign to each other 50 percent of their income in 1901, long before the income tax was even instituted, and the tax years at issue in that case were 1920 and 1921. If anything, it was much more speculative and uncertain what income would have been earned 20 years later in that case, and that did not stop the Court from --
03-892 +++$+++ 9372 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you're -- you're --
03-892 +++$+++ 9373 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- applying this principle that --
03-892 +++$+++ 9374 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can I -- can I ask you a question relating to the Davenport -- what's been referred to as the Davenport theory? I had thought that -- that the service has used the -- the transaction theory with regard to legal fees payable for a lawsuit seeking increased compensation for the condemnation of real estate where the taxpayer had objected to the amount that the condemning entity was offering and brought suit in court and with a contingent fee to the lawyer and that the service treated that as -- as part of the transaction cost. Am I wrong about that?
03-892 +++$+++ 9375 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, to my knowledge, the -- the IRS has had a consistent position that the entire amount of litigation proceeds, including the amount that may be paid to a lawyer under a contingent fee agreement, even in the condemnation context, is tax -- is included in the gross income of -- of the taxpayer. And I would point Your Honor to the case out of the Federal Circuit, Baylin v. United States. That case involved a condemnation action, and the court of appeals in that case addressed the issue that's presented in these cases and concluded that it was includable in gross income.
03-892 +++$+++ 9376 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Maybe my recollection is wrong. I'll look again.
03-892 +++$+++ 9377 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and I would point out, Your Honor -- and this has to do, I think, with the impact of the new legislation that's been pointed to in the supplemental briefs -- that at least six of the court of appeals cases addressing the issue presented in these cases involved claims that would not be covered under the new section 703 because they -- they don't involve claims for unlawful discrimination or -- or FCA claims or certain Medicare claims --
03-892 +++$+++ 9378 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But can -- can I ask you to go back for a minute? I guess the IRS -- you're seeing the lawsuit as the income-generating asset.
03-892 +++$+++ 9379 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor.
03-892 +++$+++ 9380 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you're looking at the control of the plaintiff, for example, over the lawsuit as something that determines whether it's his income. And he, of course, can't give away his income. But on that theory, to go back to Justice O'Connor's original question, then the punitive damages also must be his income because he has equal control over them and they grow out of the income-producing asset. And that, of course, is what's bothering me because it seems to me that your theory, which is a well-established theory, coupled with a Congress that seems to be willing to take away deductions for expenses that lead to the income, could produce an income tax that in many cases, not just a few, exceeds the income that an individual has. And I would like to know what in the law is there to guard against that result.
03-892 +++$+++ 9381 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I guess my response to that is that, first --
03-892 +++$+++ 9382 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Other -- other than the mercy of the Internal Revenue Service. (Laughter.)
03-892 +++$+++ 9383 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the fact of the matter is, is that Congress has looked at -- at this issue, and in the new section that I just referred to, section 703 --
03-892 +++$+++ 9384 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but does that happen? You haven't answered the question. Are there instances where plaintiffs in lawsuits end up receiving tax bills, as a result of this scheme, for more money than they received in the lawsuit?
03-892 +++$+++ 9385 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That has occurred, Your Honor.
03-892 +++$+++ 9386 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
03-892 +++$+++ 9387 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and Congress responded to concerns about that very result --
03-892 +++$+++ 9388 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but doesn't -- doesn't that indicate --
03-892 +++$+++ 9389 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in the new section.
03-892 +++$+++ 9390 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- something basically flawed about your whole theory?
03-892 +++$+++ 9391 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. It is --
03-892 +++$+++ 9392 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This is not income in any -- in any real sense.
03-892 +++$+++ 9393 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is there any constitutional protection? The Sixteenth Amendment refers to an income tax, and perhaps that doesn't include a tax that grossly exceeds in many cases a person's income. That would be quite a far-out theory at the moment.
03-892 +++$+++ 9394 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it would be, Your Honor.
03-892 +++$+++ 9395 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I -- that's why I ask you. Is there any protection in the law whatsoever? Or if Congress decides to tax a set of people who, let's see -- say, earn $10,000 a year and because they're small business people, they happen to have $20,000 expenses. So it taxes them on $20,000, and the tax exceeds the income. There's no protection in your view against that result. And you just said, well, Congress decided to do it, it decided to do it.
03-892 +++$+++ 9396 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But we do think, Your Honor, that the only limit on Congress' taxing authority would be the Constitution, and I don't see a constitutional violation in disallowing a deduction, but --
03-892 +++$+++ 9397 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about an assumption, for example, that when we read the code, we read it with a view towards thinking Congress did not want to produce such unfair results?
03-892 +++$+++ 9398 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, if I may. The way I would respond to that concern is that the proper way to address it is not as the courts below did and as respondents urge, to alter or distort the general definition for gross income under the -- under the tax code which may have broad ramifications in a number of areas outside of this one, but to go to Congress, as in fact people have done, and to get them to make -- make additional deductions or otherwise alter the alternative minimum tax, which generates the primary concern I think at issue in these cases.
03-892 +++$+++ 9399 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What happened in the cases --
03-892 +++$+++ 9400 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's the proper way to handle that.
03-892 +++$+++ 9401 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There were cases -- we don't have to deal in hypotheticals. There were cases where this happened, where people ended up liable for a tax greater than what they took in. What happened in those cases?
03-892 +++$+++ 9402 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They were -- they were liable for a tax greater than what they took in. Those were pointed to Congress --
03-892 +++$+++ 9403 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, there was one that was $99,000, if I remember right.
03-892 +++$+++ 9404 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that's correct. Those were pointed out to Congress and that was part of what motivated Congress --
03-892 +++$+++ 9405 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was there a private bill?
03-892 +++$+++ 9406 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to enact section 703 to protect --
03-892 +++$+++ 9407 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or what happened? What actually happened in that case, do you know?
03-892 +++$+++ 9408 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do not know, Your Honor. My -- my understanding is that the tax was assessed and I don't know whether --
03-892 +++$+++ 9409 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Salmons, I -- I -- you've cited the -- the Baylin case to me and I -- I've looked at the description of it in the brief, which I had recalled, and what it says is that it did, indeed, involve a taking by the State, and when the State didn't offer what Baylin thought was -- was enough, he went to court, he prevailed, and recovered a much larger sum than the State had offered him. His legal fees were, by the IRS, subtracted from the award, and he was taxed only upon the proceeds reduced by the legal fees. Now, how do you explain that situation there?
03-892 +++$+++ 9410 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, if I --
03-892 +++$+++ 9411 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And how does that --
03-892 +++$+++ 9412 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- misremembered that case, I apologize. My -- my recollection was that -- was that the court in that case had included the attorney's fees in gross income. But -- but --
03-892 +++$+++ 9413 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I doubt -- I doubt whether Professor Davenport has misdescribed the case in -- in his brief, but I --
03-892 +++$+++ 9414 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But -- but again, Your Honor, if I may. I think the -- the basic point to recall here is that the definition of gross income cuts across the tax code. If there are concerns about application, then the proper result is to go to Congress, as has been done. Congress has addressed the very concerns cited by respondents and the amici in this case, and that specifically is the -- the application on civil rights plaintiffs.
03-892 +++$+++ 9415 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does the Fifth Amendment Takings Clause apply to a Government tax scheme that taxes something beyond the income received?
03-892 +++$+++ 9416 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it -- there may be -- there may be a takings issue at some point. Again, there may be constitutional limitations.
03-892 +++$+++ 9417 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, at the point where the Government charges more than the taxpayer received --
03-892 +++$+++ 9418 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I think, Your --
03-892 +++$+++ 9419 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in income?
03-892 +++$+++ 9420 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think when -- when what you're talking about is how to define --
03-892 +++$+++ 9421 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, this is an appalling situation.
03-892 +++$+++ 9422 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Again, Your Honor, I -- I think as a general matter, the -- the proper definition of gross income would include the attorney's fees portion of litigation awards. It's important to note that the when Congress --
03-892 +++$+++ 9423 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what do you we make of the fact that two Senators apparently don't agree with that position? I mean, I -- I'm referring to the colloquy that was quoted in -- in one of the -- the briefs about the recent legislation, and the -- the substance of the colloquy was we're not making any change in the law, we're just clarifying it. Well, in fact, if there is no textual difference for tax purposes between the law, so far as it concerns these -- these so-called discrimination recoveries and non-discrimination recoveries that have the same problem that Justice O'Connor is talking about, shouldn't we infer that at least the Senate of the United States assumes that this does not get into gross?
03-892 +++$+++ 9424 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. In fact, what I would say is that the thing to focus on is what Congress actually enacted and it makes clear that all the litigation proceeds --
03-892 +++$+++ 9425 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm -- I'm talking about the colloquy. I'm talking about the colloquy.
03-892 +++$+++ 9426 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I understand that, Your Honor, and what I'm trying to answer is that the -- the legislation itself makes clear that it's included in gross income and an above-the-line deduction is provided, and that the colloquy was referring to a prior version of the bill that would have been retroactive in part. The new bill is not retroactive, and we think it's clear that it does work a change because from, among other reasons, it's undisputed that if these fees had been paid on an hourly fee basis, they would have been included in gross income and -- and the alternative minimum tax would apply.
03-892 +++$+++ 9427 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We don't really know who prepared that colloquy anyway, do we?
03-892 +++$+++ 9428 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We do not.
03-892 +++$+++ 9429 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It might have been prepared by the respondents here.
03-892 +++$+++ 9430 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We do not. (Laughter.)
03-892 +++$+++ 9431 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If I may reserve the remainder of my time.
03-892 +++$+++ 9432 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Jones.
03-892 +++$+++ 9434 +++$+++ FALSE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Stevens, and may it please the Court: My client and I are asking the Court to rule that the assignment of income doctrine does not apply when unrelated persons combine their resources to jointly generate income. And we --
03-892 +++$+++ 9435 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- so what -- what about the talent scout who tells the celebrity that he'll take 10 percent of the celebrity's movie proceeds or the management search person that's going to take a -- a third of the executive's pay for the first 6 months? Where -- are all -- all these cases ones in which there -- there's no income to the -- to the principal, we'll call them?
03-892 +++$+++ 9436 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You mentioned the -- the management agent and the -- I think you mentioned the talent agent, and there was also mentioned the literary agent. The -- the author is in the trade or business and gets to deduct all this off the top. There's no problem there.
03-892 +++$+++ 9437 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's the -- that's the question I asked Mr. Salmons --
03-892 +++$+++ 9438 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. The literary agent --
03-892 +++$+++ 9439 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and he gave me the opposite answer.
03-892 +++$+++ 9440 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. The literary agent is in a trade or business. That's off the top. That's an ordinary and necessary business deduction on Schedule C.
03-892 +++$+++ 9441 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that isn't the question.
03-892 +++$+++ 9442 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-892 +++$+++ 9443 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The -- the problem is you're -- you're trying to get a theory in response to him that I think Justice Kennedy is asking about.
03-892 +++$+++ 9444 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-892 +++$+++ 9445 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that theory, which is the problem for your side of the case -- that theory has all kinds of implications. I go out and I help the painter paint my office. We have a joint venture. I -- so there's no problem. I don't take it in -- you know, I get a -- this is great. And so that I think, if I'm right, was the thrust of Justice Kennedy's question.
03-892 +++$+++ 9446 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our first choice, our preference for this Court to rule is -- is not the partnership or joint venture theory. Our first choice is for this Court to simply look at the application of the assignment of income doctrine and ask it -- if it is being misapplied. The -- the petitioner has not cited to the Court a single, solitary case in which unrelated persons combine their resources to jointly produce income, and that is the rule of law I'm suggesting to the Court today. That is apart and separate from the partnership theory, that two unrelated persons who join together to produce income --
03-892 +++$+++ 9447 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's a partnership theory when you talk about two persons joining together. I don't like this -- this gold mine view of litigation, that it's, you know, like two prospectors. You know, there's money to be obtained. (Laughter.)
03-892 +++$+++ 9448 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
03-892 +++$+++ 9449 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's -- that's not what I view of a chosen action as. I view it as a legal right --
03-892 +++$+++ 9450 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-892 +++$+++ 9451 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that the person is entitled to money, and ultimately the amount he's entitled to is determined by the litigation. And I'm not about to adopt a -- a legal theory that -- that views this as a -- as a search for buried treasure --
03-892 +++$+++ 9452 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- in -- in which the -- the lawyer and the person who has been wronged are -- are simply co-prospectors. I -- I just think that that's --
03-892 +++$+++ 9453 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the --
03-892 +++$+++ 9454 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Maybe that's how you view the -- the enterprise --
03-892 +++$+++ 9455 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would like to --
03-892 +++$+++ 9456 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- but I don't think the law does.
03-892 +++$+++ 9457 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would like to suggest to the Court three avenues to reach this result that I have just suggested and the partnership/joint venture theory is only one of those.
03-892 +++$+++ 9458 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let's move on to something else because I have a couple -- (Laughter.)
03-892 +++$+++ 9459 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. I will move on to that, and I will not mention that again. (Laughter.)
03-892 +++$+++ 9460 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This Court created the assignment of income doctrine. Congress did not create it. This Court has every right and power to limit its -- its definition, to limit its scope to keep it from being misapplied. In every case cited by the petitioner, we have a -- a family situation, related people making gifts to each other with no commercial purpose. Apart from the partnership and joint venture theory, if we simply say that this case is dramatically outside of the scope of that doctrine, of good doctrine that has been applied properly in an inter-family situation, but when you have two unrelated persons joining forces to produce income --
03-892 +++$+++ 9461 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would you have a different result if they were related? Supposing the lawyer is a cousin of the client.
03-892 +++$+++ 9462 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This Court has a long history of recognizing --
03-892 +++$+++ 9463 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or a good friend.
03-892 +++$+++ 9464 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of recognizing sham transactions.
03-892 +++$+++ 9465 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's not a sham transaction. You just happen to be related.
03-892 +++$+++ 9466 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right.
03-892 +++$+++ 9467 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I'm just wondering if that --
03-892 +++$+++ 9468 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would like to focus on the gratuitous nature of the cases relied upon by the petitioner and the non-gratuitous aspects of our case. Let's talk about a personal injury case where this problem does not arise because there's no tax involved. This relationship of a contingent fee is entered into thousands of times every week by people injured in automobile accidents. They are not entering into this contingent fee agreement for tax purposes. They're not trying to avoid tax -- taxes. The commissioner is confusing intent with --
03-892 +++$+++ 9469 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. On -- on that theory, that there is a non-tax economic purpose, do you still maintain that your theory should have as an element unrelated people?
03-892 +++$+++ 9470 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
03-892 +++$+++ 9471 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why do we need the question of the relationship, which Justice Stevens's questions raised, even to arise if -- if the principal criterion is going to be economic non-tax purpose?
03-892 +++$+++ 9472 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree completely. I was trying to emphasize the -- the intrafamily gratuitous nature of those cases, but I agree --
03-892 +++$+++ 9473 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There was no avoidance motive in the --
03-892 +++$+++ 9474 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-892 +++$+++ 9475 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- granddaddy of all cases. The assignment there, although it was between family members, had been made before there was an income tax.
03-892 +++$+++ 9476 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But we must --
03-892 +++$+++ 9477 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The income tax didn't exist. There -- there couldn't conceivably have been an avoidance motive. So -- so our holding could hardly be based upon -- upon the existence of an avoidance motive.
03-892 +++$+++ 9478 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm asking the Court to skip over motive and look at result. The Court in that case was attacking a result because that arrangement stayed in place after the income tax was -- was enacted. The Solicitor General is confusing intent with result. In every case, in every single case, without exception, this doctrine has been applied to the result.
03-892 +++$+++ 9479 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but what if you had the same result but -- in terms of the sharing of the expense and the recovery, but it was computed on an hourly basis rather than a percentage basis? Would that produce a different result?
03-892 +++$+++ 9480 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would produce a different result. The commissioner's case is based on could have's. They say they could have tried the case himself. He couldn't. But -- but the main thing he --
03-892 +++$+++ 9481 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but he could have made -- I'm saying he could have said to the lawyer, I'll pay you 30 -- a -- a third of the recovery or I'll pay you $100 an hour.
03-892 +++$+++ 9482 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, he --
03-892 +++$+++ 9483 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And they come out exactly the same result, but you -- but do you treat them differently or the same?
03-892 +++$+++ 9484 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We treat them differently simply because he didn't. I practice law in a partnership. I'm taxed accordingly. I could -- I could be -- set up my arrangement different ways and the tax results would be different. We must honor these relationships --
03-892 +++$+++ 9485 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is different?
03-892 +++$+++ 9486 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, may I ask one --
03-892 +++$+++ 9487 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is different?
03-892 +++$+++ 9488 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask one other hypothetical? Supposing that the agreement on the contingency is postponed until the middle of the preparation, not made at the outset, but along the line, they say we'll figure out what a fair percentage will be, and when the recovery comes in, they then decide, okay, you take a third. What -- what result do you do in that case?
03-892 +++$+++ 9489 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I have difficulty with that question.
03-892 +++$+++ 9490 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I'm sure it arises fairly often.
03-892 +++$+++ 9491 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My -- I believe that attorneys don't allow themselves to be placed in that position. They get the contingent fee agreement signed when the -- the --
03-892 +++$+++ 9492 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I did very often.
03-892 +++$+++ 9493 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I don't know the answer to your question. I -- I don't know that. But an -- we -- the Internal Revenue Code respects people who enter into corporations, who enter into joint ventures, who enter into sole proprietorships, who hire employees or allow themselves to be hired by others. Those relationships are all respected and honored by the Internal Revenue Code, and the commissioner is asking you to dishonor this relationship because Mr. Banaitis could have handled the case himself or could --
03-892 +++$+++ 9494 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think probably what's -- what's one of the problems here is that the reason this is income is it relates to employment. And I don't see why hiring the attorney to get that income is not an ordinary and necessary business expense under what used to be section 162. That may be part of the problem. Do you agree that it's not an ordinary and necessary business expense?
03-892 +++$+++ 9495 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe the problem is that a plaintiff has -- I wish I could say this plaintiff is in -- engaged in a trade or business and can deduct it or trade or -- as a trade or business expense.
03-892 +++$+++ 9496 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, I suppose that's the reason -- that's the reason why it's taxable to begin with, is it relates to employment. If I hire an attorney because I'm wrongfully discharged and I get -- I get my job back, it seems to me that's an ordinary and necessary business expense. That -- that's why -- one of the reasons I have problems with this.
03-892 +++$+++ 9497 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand. But one of the -- the odd result here of a person having to pay more in taxes than they recover -- this actually comes up under a fee shifting statute that applies to the Internal Revenue Service where a person could be in litigation with the Internal Revenue Service, the Internal Revenue Service becomes obligated to pay fees because they acted unreasonably. They pay those fees, and then they simultaneously hand the taxpayer a bill for taxes on those fees.
03-892 +++$+++ 9498 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let me get -- get to a different point. It -- it does seem to me that we -- we have to be very careful in this case not to distort the revenue law for other transactions that are not before the Court. And the -- the natural extension of your position is that anytime when the taxpayer enters into an agreement with an agent to pay the agents an amount contingent on the success of the venture, that it's not income, that -- that the -- that the payment is not income to the principal. And I just can't accept it.
03-892 +++$+++ 9499 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. That is not my position. My position is that the assignment of income doctrine does not apply. Those relationships are all governed by existing law and there is a large body of law dealing with those cases and they can be found in a cite that is offered by the petitioner at page 3 of his reply brief. It talks about the literary agents. It talks about the -- the management agents.
03-892 +++$+++ 9500 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what's the difference in principle. I don't understand the difference in principle when we're talking about who has the income. It's the first thing you ask in -- in a first-year -- in -- in your -- in your first class in tax. Where is the income? Who gets the income?
03-892 +++$+++ 9501 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I am not trying to avoid your question, but I'm trying to clarify that I am not asking this Court to determine who has the income in those cases because there is a large body of law and a large body of statutory law that answers the questions for each of those examples. All I'm suggesting is that we do not get to those answers. We should not get to those answers through the assignment of income doctrine.
03-892 +++$+++ 9502 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's your third? I just don't want you to miss your third. You have the joint venture theory, an exception to an assignment in income, and you said you had a third.
03-892 +++$+++ 9503 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Oregon question, Your Honor, which I don't think the Court is likely interested in --
03-892 +++$+++ 9504 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The who?
03-892 +++$+++ 9505 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the Oregon question.
03-892 +++$+++ 9506 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The Oregon question.
03-892 +++$+++ 9507 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Oregon question. That is --
03-892 +++$+++ 9508 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is the Oregon question?
03-892 +++$+++ 9509 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Oregon question is part IV of our brief beginning on page 31 which would not be a national uniform rule. But what we're asking this Court to do is simply, as narrowly as possible, to limit the assignment of income doctrine and do nothing more than that.
03-892 +++$+++ 9510 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what do you make of Professor Davenport's proposal to capitalize the contingency fee as a transaction?
03-892 +++$+++ 9511 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe Professor Davenport is completely correct. I support his theory wholeheartedly. We didn't make that argument because we believe the limitation on the assignment of income doctrine is the real issue and we believe that is the narrower issue.
03-892 +++$+++ 9512 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if you took a settlement -- his theory, I take it, was seeing the lawsuit as a capital asset. Is that right?
03-892 +++$+++ 9513 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Well, I -- I think so.
03-892 +++$+++ 9514 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, then whenever you settled a lawsuit, it would be -- you'd have to pay capital gains instead of ordinary income.
03-892 +++$+++ 9515 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I'm sorry. I think I misspoke. I'm not sure that's his theory. I'm not certain, and I'm --
03-892 +++$+++ 9516 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm sure it's not his theory. He -- he thinks it's -- it's attached to transactions, and -- and much of his argument is devoted to showing that capital transactions are no different from other transactions as far as the Internal Revenue Code's desire to match the -- the gain with the expenses concerned. And that's the part of his theory that I'm not so sure about because aside from the -- aside from the condemnation case that I mentioned, I -- I don't know of any other cases in which the Internal Revenue Service has treated transaction costs the way he would have it done. Maybe it makes sense, but I --
03-892 +++$+++ 9517 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would like to make one additional point in the few seconds I have left. The -- the Solicitor General is arguing that the language, the statutory language, of the new statute implies a particular result. This Court decided as early as 1940 in the Higgins v. Smith case when the commissioner made the exact same argument, and this Court said -- and I quote -- that does not follow. The statutory language says that to the extent this income is -- this -- this money is included in income, to the extent it is included in income -- it doesn't say whether it is or not -- then a deduction will be allowed. And that as neutral a statement as I can think of. There is nothing in the statutory language that implies one answer or the other. But I emphasize to the Court that the -- the commissioner is confusing intent with result when he discusses the cases upon which he is relying. Those cases reached a result and they corrected that result. We don't have an abuse in this situation. And the assignment of income doctrine should not be stretched beyond its bounds by this Court. It should be limited to its historical use. This is a misuse. Thank you very much.
03-892 +++$+++ 9518 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Jones. Mr. Carty.
03-892 +++$+++ 9520 +++$+++ FALSE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Stevens. Neither section 61(a) nor any other provision of the Internal Revenue Code expressly requires that a Federal civil rights litigant, such as Mr. Banks, include in his gross income the portion of a litigation recovery that was earned by, retained by, and already taxed to his attorney as a contingent fee. The commissioner's position in this case relies exclusively on the misapplication of a judicial doctrine known as the assignment of income doctrine. That doctrine originated and developed as a judicial anti-abuse rule, designed to prevent high-bracket taxpayers --
03-892 +++$+++ 9521 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, it didn't.
03-892 +++$+++ 9522 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I respectfully --
03-892 +++$+++ 9523 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It -- it originated in a case where there could not possibly have been an intent -- an intent to abuse because the -- the transfer had occurred before there was any income tax.
03-892 +++$+++ 9524 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice --
03-892 +++$+++ 9525 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, just -- just don't -- maybe you think that that's what it ought to be, but -- but please don't tell us that that is how it originated. It plainly did not originate that way.
03-892 +++$+++ 9526 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, I respectfully disagree. It is true, as the commissioner and you point out, that at the time of the agreement between the husband and wife, the income tax was not in existence. However, the agreement certainly was in existence after the income tax was passed. So that could have been a reason why the agreement was never rescinded. In addition, in another landmark case from 1937, Blair, this Court expressly looked to whether there was a tax avoidance motive. And this is how this principle is taught in first-year tax class. That's the whole purpose behind this. As a matter of fact, the commissioner in a -- in a different context actually looked to the fact, with respect to a particular transaction, whether there was a tax avoidance purpose.
03-892 +++$+++ 9527 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's a different argument. I'm -- I'm just quarreling over whether it originated that way. If you want to say --
03-892 +++$+++ 9528 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Under -- under your view --
03-892 +++$+++ 9529 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that's fine.
03-892 +++$+++ 9530 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- suppose that the attorney is -- is waiting for payment of -- of his, say, one-third contingent fee, and the client just absconds with the money. How is -- what -- what happens from a tax standpoint under your theory? I take it the attorney has to declare the income on his return and then declare a loss?
03-892 +++$+++ 9531 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, certainly the attorney has a legal right to those funds. He has a contractual right and under most --
03-892 +++$+++ 9532 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm asking you about the tax consequences.
03-892 +++$+++ 9533 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, at -- at that point the income wouldn't have inured to the benefit of the attorney.
03-892 +++$+++ 9534 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but I -- I thought under your view the moment the client gets the check for the full amount, one-third of it is taxable to the attorney. And I have some problems, incidentally, with respect to tax years if it -- if you -- if the client receives the check December 30 and is on vacation and doesn't get around to remitting to the attorney until January 5th, I'm -- I'm not quite sure how your theory works, but --
03-892 +++$+++ 9535 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, I -- I think the --
03-892 +++$+++ 9536 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But on the absconding theory, how -- how is it handled from a tax standpoint?
03-892 +++$+++ 9537 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that for tax purposes the attorney's right to the funds -- that's at the moment he receives it. So if he doesn't have the funds in hand, he wouldn't be liable for Federal tax. It would be at the point he either receives the funds --
03-892 +++$+++ 9538 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Aren't -- aren't you --
03-892 +++$+++ 9539 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is an academic question because he would have an offsetting theft loss.
03-892 +++$+++ 9540 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think that is an alternative way to -- to view it. There would be a --
03-892 +++$+++ 9541 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If -- if you view it as the theft loss, you -- you maintain your theory. If you argue, as you were arguing a second ago, I think what, in fact, you're doing is adopting the mere lien theory.
03-892 +++$+++ 9542 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, I -- I --
03-892 +++$+++ 9543 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think you better go with Justice Ginsburg. (Laughter.)
03-892 +++$+++ 9544 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Like somebody stealing a check out of my mailbox from my employer. Right? Okay.
03-892 +++$+++ 9545 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-892 +++$+++ 9546 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So what is your theory, I mean, precisely? A, an assignment of income, what would otherwise count of A giving an assignment of income to B, and therefore still be A's income because the asset remains with A, the work, or whatever. Now, your theory is but not in the case that. Now fill in the blank for me.
03-892 +++$+++ 9547 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice --
03-892 +++$+++ 9548 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Precisely, please.
03-892 +++$+++ 9549 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would not be in the case that the funds are not under the control of the attorney.
03-892 +++$+++ 9550 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Not in the case -- it is an assignment of income to B, but not in the case where the funds are not in -- when B -- when B get -- when B, the attorney, gets the funds, he controls them. What's -- what do you mean? I don't get it.
03-892 +++$+++ 9551 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I thought your hypothetical --
03-892 +++$+++ 9552 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I want to know. You have three -- your problem on your side for me is that maybe all the equities are there, but I'd like to know the proposition of law that you want us to write in this opinion. And now we had three theories, and one, the one that you seem to be adopting, is this exception to the assignment of income doctrine. If that is what you're adopting, I'd like to know the precise form of words that create the exception. If that's not the theory you're adopting, I would like to know what the theory you're adopting is.
03-892 +++$+++ 9553 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would state, Your Honor, that the assignment of income doctrine simply does not apply when the -- the client has no control or power of disposition over the income that was subject to the assignment. There are at least five reasons why this type of contract --
03-892 +++$+++ 9554 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But he did have control. He could have settled the lawsuit or not settled the lawsuit. He controlled when the income was generated, and moreover, he could have stopped it from being generated by settling the suit or dismissing it. Moreover, if he had not entered into this assignment of income, it would have been paid right into his bank account at the end. It sounds an awful lot like the Lucases or like the Horsts or whoever, Old Colony Trust. It sounds an awful lot like those cases.
03-892 +++$+++ 9555 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, I -- I think it's helpful to make a conceptual distinction between the claim, the underlying litigation claim, and the right to receive the funds. Now, certainly Mr. Banks in this case had a right to enter into settlement or not. He had a right to fire his attorney. But once he assigned the contingent fee portion of the recovery, he, as a practical matter, had no ability, he had no control over that portion of the recovery. Another fundamental difference between --
03-892 +++$+++ 9556 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That -- that would be the same with the theater agent or the commission agent.
03-892 +++$+++ 9557 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We submit, Justice Kennedy, that the nature of the attorney-client relationship is fundamentally different from the types of relationships you cited, and that's because an attorney here is the one who's earning the income. It's the attorney who is making the critical decisions.
03-892 +++$+++ 9558 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you could say the same thing for the talent scout.
03-892 +++$+++ 9559 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would respectfully disagree. I -- I think there's a -- there's a fundamental difference. Presumably a -- a actor or an entertainer -- their -- their market value is -- already has some type of tangible value. The -- the agent might --
03-892 +++$+++ 9560 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your client, in effect, earned the money by having this -- undergo this -- this discrimination. That -- that's --
03-892 +++$+++ 9561 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor --
03-892 +++$+++ 9562 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is not the plumber hypothetical, which is I think quite misleading. No. No, I don't think that even the Government will defend that.
03-892 +++$+++ 9563 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, Your Honor, I think with respect to an entertainer, an entertainer necessarily doesn't need an agent. Neither does an athlete.
03-892 +++$+++ 9564 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Take an investment advisor and the client is not at all -- doesn't know anything about the market, and he's got this whiz-bang advisor who makes millions for him that he never could have made on his own.
03-892 +++$+++ 9565 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think that might be more similar to the attorney-client relationship. But Mr. Banks, unlike the athlete or unlike the entertainer, had no -- no ability to -- to recover these funds himself. He essentially had two options. He could have either done nothing and collected nothing --
03-892 +++$+++ 9566 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your -- your -- you want to fill in the blank, in other words, and say where the assignment of income is such, such that B was in effect the person who really earned the income, unlike Mrs. Lucas' -- what Mr. Lucas' or maybe Mr. Earl -- I don't know --
03-892 +++$+++ 9567 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
03-892 +++$+++ 9568 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- husband -- the wife didn't earn the income.
03-892 +++$+++ 9569 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-892 +++$+++ 9570 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The husband did. So you want to say where the -- and then your answer, I guess -- don't say I'm right if I'm not right, please, because I'll just find out later. (Laughter.)
03-892 +++$+++ 9571 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The -- the answer to the hypothetical about the agent and so forth is, well, so be it. If a person wants to go to the trouble of carving out some of his income and assigning that over to the agent, let him. Except for perhaps provisions of the code which we cannot now envisage -- I can't because I'm not an expert -- it doesn't matter since, after all, it would be deductible anyway. Is that -- is that what you're saying?
03-892 +++$+++ 9572 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor --
03-892 +++$+++ 9573 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Tell me if I'm wrong, please, on this.
03-892 +++$+++ 9574 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, I -- what we're saying is the unique situation of an attorney and a client, it is the attorney who's taking the laboring, or unlike the entertainer example where the -- where -- or the athlete example --
03-892 +++$+++ 9575 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay, I see. You say double. Both the income is earned by the attorney, and at that stage the client does virtually nothing. So it's the reverse of the Earls or the Lucases where the husband was doing the work and the wife is getting the income. It would be as if the wife was doing all the work and the husband just sat there and clipped coupons or whatever.
03-892 +++$+++ 9576 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor, and in Lucas v. Earl, it was the assignor who earned the income that was subject to disposition. Here --
03-892 +++$+++ 9577 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not so sure about that because why doesn't the theory that -- that applies to the lawyer equally apply to the wife? I mean, she took care of everything going on at home, and that enabled him to go out there and make all that money. So without her services, just like without the lawyer's services --
03-892 +++$+++ 9578 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is an excellent point, Your Honor.
03-892 +++$+++ 9579 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You should agree with that. You should -- (Laughter.)
03-892 +++$+++ 9580 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Those were less enlightened times.
03-892 +++$+++ 9581 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Nevertheless -- nevertheless, I -- I think there may be some -- some difference in degree that you might even recognize between the two cases. Another issue I'd like to address is the impact of the fee shifting statutes, if I could get to that quickly. It is a bedrock principle of taxation that settlements of a claim are taxed the same as a judgment would have been taxed. Mr. Banks' settlement was achieved in lieu of his claims under title VII and 42 U.S.C., sections 1981 and 1983. Now, each of these statutes contains a fee shifting provision which enables a court to award attorney's fees to a prevailing plaintiff. The defendant in Mr. Banks' case, the California Department of Education -- they therefore settled Mr. Banks' claim in lieu of their exposure under these fee shifting statutes. An award pursuant to these fee shifting statutes is separate and distinct from a damages recovery and therefore should not be taxable to a plaintiff. And the Federal tax consequences to Mr. Banks, the litigant who settles, shouldn't be any different as well. Otherwise, this Court would be discouraging settlement. Therefore, a judicial anti-abuse rule should not be misused to undermine the statutory scheme devised by Congress to encourage civil rights litigants to bring meritorious claims and vindicate national policy. Unless the Court has any further questions?
03-892 +++$+++ 9582 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The Government says on that branch of it, well, the fees -- the lodestar fee, that's one thing. A court awards it, but that's quite different from the one-third/one-half even contingent fee. The court has control over the fee shifting, but we're not dealing with any court award here.
03-892 +++$+++ 9583 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Justice Ginsburg. Mr. Banks settled his claims. Yet, we are pressing the point that Mr. Banks shouldn't be treated any differently for tax purposes than a litigant who recovers pursuant to a fee shifting statute. Otherwise, the Court would be discouraging settlement. If there's any other questions.
03-892 +++$+++ 9584 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Carty.
03-892 +++$+++ 9585 +++$+++ TRUE +++$+++ MR. CARTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
03-892 +++$+++ 9586 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Salmons, you have a little over 2 minutes.
03-892 +++$+++ 9588 +++$+++ FALSE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. It is clear that the only thing that respondents' attorneys earned under the fee agreements was the right to be paid a fee for their services. In petitioner's view, those agreements don't even give rise to an assignment of income in the ordinary sense. If you look at the text of the fee agreement in the Banaitis case -- the Banks' fee agreement is not in the record -- among other things, it makes clear that if there is a termination -- and it provides lots of grounds on which the attorney-client relationship can be terminated -- that the attorney will be paid a reasonable fee, calculated at the sum of $175 per hour. That doesn't sound like an assignment of any income or even an assignment of the underlying cause of action. Even if it did, it is clear that in every assignment of income case, the assignor loses control over that income that he assigned. That doesn't stop the application of the proper tax principles, however. The -- the respondents in these cases suffered a legally cognizable injury. They had a claim. That claim entitled them to a recovery. They retained services to pursued that claim. If they had paid their lawyers on an hourly basis, those lawyers may have been just as necessary to the actual outcome of the case as their contingent fee attorneys. Both the -- an hourly fee attorney and a contingent fee attorney in both of the States at issue here -- and in fact, in all States of which I'm aware -- received precisely the same attorney's lien. That lien makes clear that the relationship between attorney and client starts out as that between a master and an agent and then is converted through the fee agreement to that between a creditor and a debtor, and the lien secures the debt and ensures its payment. When the proceeds from the litigation are paid to the attorney, it satisfies the respondent's debt and is therefore income to the attorney. Under the separate and alternative ground of this Court's Old Colony decision, it goes far and beyond even the holding with regard to an assignment of income. To address just a couple of questions that came up, I would point out that in the class action context, again, as I indicated, there are a number of differences. And just to be a little more specific about some of them, generally speaking there's no unilateral right to settle a -- a case by class members. There's no unilateral right to dismiss the case, and there's no right to a determined fee.
03-892 +++$+++ 9589 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Salmons.
03-892 +++$+++ 9590 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
03-892 +++$+++ 9591 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The case is submitted.
03-9046 +++$+++ 9595 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll now -- we'll now hear argument in Rhines against Weber. Mr. Lange. You may proceed, Mr. Lange.
03-9046 +++$+++ 9597 +++$+++ FALSE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: Stay and abeyance is the proper way to administer the total exhaustion rule under the unique facts of this case. Several Justices of this Court already have endorsed stay and abeyance, and seven of the eight circuit courts of appeals that have considered the issue have permitted stay and abeyance under similar circumstances. Section 2254 and the decisions of this Court in Granberry v. Greer and Strickland v. Washington make clear that exhaustion is not a jurisdictional requirement. District courts have the inherent authority and the broad discretion to issue stays in cases that are within their jurisdiction.
03-9046 +++$+++ 9598 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think that's unquestionable. The -- the issue really is whether it's an abuse of that discretion to -- to grant a stay and abeyance when the -- the petitioner comes before the court for habeas without having exhausted in State court. I mean, that's the question. I think everybody will stipulate that there's power to -- to stay proceedings, but is it an abuse of discretion to do so in these circumstances given the statute that -- that wants a 1-year, prompt resort to the Federal courts.
03-9046 +++$+++ 9599 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, I agree with your framing of the issue.
03-9046 +++$+++ 9600 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
03-9046 +++$+++ 9601 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I also believe that a stay under these circumstances is appropriate under the statutes, section 2254 and 2244, and is consistent with those statutes. There is nothing, as Justice Souter noted in his concurrence in Duncan v. Walker, that prohibits the -- the granting of a stay under circumstances such as these. Indeed --
03-9046 +++$+++ 9602 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, there's no -- there's no abuse of discretion here. Why? Because we have an interest in having all of the claims exhausted? If -- if it's no more -- if it's as broad as that, then there's no AEDPA statute of limitations.
03-9046 +++$+++ 9603 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. I believe there is no abuse of the discretion here because if a stay had not --
03-9046 +++$+++ 9604 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why shouldn't -- why shouldn't the petitioner for habeas have to first go to the State court and exhaust the State court claims? Here that wasn't done. The petitioner eventually ended up in Federal court with a laundry list of 30-some unexhausted State claims, for goodness sakes. Why shouldn't those have been presented in the first instance to the State court?
03-9046 +++$+++ 9605 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in an ideal world, they would be presented in the first instance, but we're dealing with a -- a world where 93 percent of petitioners are proceeding pro se. Your Honor, stay and abeyance does force a petitioner to present unexhausted claims in State court --
03-9046 +++$+++ 9606 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ At the price of suspending the 1-year statute of limitations that Congress thought was central to AEDPA.
03-9046 +++$+++ 9607 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. I do not see this as a suspension of the statute of limitations. Mr. Rhines met the AEDPA statute of limitations. He filed when only, by the State's own admission, 8 to 14 days had run on his 1-year AEDPA statute of limitations.
03-9046 +++$+++ 9608 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but it's a free ride if you say -- so long as you get in within the 1-year period, the court can then give you another 3 years or as long as the court thinks is reasonable for you to go back and -- and do what you were supposed to do before you arrived. I mean, that seems to me is a frustration of the 1-year statute of limitations.
03-9046 +++$+++ 9609 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I disagree that that is a free ride, and I do not see that as a frustration of the 1-year statute of limitations when a petitioner has met the 1-year statute of limitations. Your Honor --
03-9046 +++$+++ 9610 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the petitioner --
03-9046 +++$+++ 9611 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but the point --
03-9046 +++$+++ 9612 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- didn't go to the State court with this enormous laundry list of unexhausted claims. I mean, what do we do to encourage the procedure to be followed? Congress did want all this compressed and thought people should apply first to State court and, when those are exhausted, then within the time limit apply to Federal court. But this -- this scheme does something else, it seems to me.
03-9046 +++$+++ 9613 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, Congress wanted to compress certainly the time between exhaustion of the State remedies and the time when the petitioner came to Federal court. However, Congress gave unlimited tolling while there is any proceeding going in -- in State court. I -- I see this stay and abeyance as a procedure that gets applied somewhat infrequently and at the discretion of a judge to -- a district court judge to apply or not apply when it's appropriate to --
03-9046 +++$+++ 9614 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is there a difference -- would you say there's a difference between a case where the petitioner comes into Federal court in the first instance with this laundry list or as, if I recall correctly, this case, goes first to the State court and then, when it's dismissed from the State court, comes to Federal court with the same basic list which has been exhausted, plus others which have not? Would you distinguish the case on the propriety of stay and abeyance of passing up the State court, going to Federal court first, going to State court with your pro se petition raising a bunch of claims but not all of them, and then coming to Federal court?
03-9046 +++$+++ 9615 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it truly depends on the circumstances which of those two hypotheticals present a more compelling case for stay and abeyance. In Mr. Rhines situation, he did go to State court first and exhausted the vast majority of the 35 separate claims that he has raised.
03-9046 +++$+++ 9616 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How many -- how many were not exhausted of that -- that laundry list?
03-9046 +++$+++ 9617 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The court -- or the State challenged 12 of the claims as unexhausted. The district court found eight of those claims to be unexhausted, Your Honor, and made that finding after Mr. Rhines' 1-year AEDPA period had run. The finding -- Mr. Rhines had filed in February of 2000 pro se. The district court's conclusion that he had a mixed petition and that there were eight unexhausted claims was made in July of 2002.
03-9046 +++$+++ 9618 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ 16 months.
03-9046 +++$+++ 9619 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's actually a little bit -- it's longer than 16 months, Your Honor. The district court referred to 16 months, but it's almost 2 and a half years, from February of 2000 to July of 2002, Your Honor.
03-9046 +++$+++ 9620 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ One of the problems is that the statute encourages prompt resolution in -- in the Federal system as well, and under a stay and abey procedure, you could have a district judge who lets the matter sit for 9-10 months and all of a sudden issues a stay and abey. How are we going to control that?
03-9046 +++$+++ 9621 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think the alternative that the State proposes presents an even more troubling illustration. A district court, of course, can proceed at its own -- at its own rate, grant a stay, grant the terms of the stay as it sees fit, and I believe that takes care of the consideration that -- that Your Honor's question indicated, Justice Kennedy. The suggestion of the State sets up a situation where, according to the State, they want Rhines to purge his -- his claim -- his petition of the unexhausted claims and proceed in State court at the same time, which is unseemly to have Mr. Rhines proceeding on 27 exhausted claims in Federal court at the same time that he is proceeding on 8 claims in State court. Now, South Dakota is a little bit unique. It -- it allows a second State habeas action. There's no time bar to a second State habeas action. In fact, the South Dakota legislature has made a policy decision that indigent prisoners are entitled to representation of counsel in their first habeas.
03-9046 +++$+++ 9622 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, so then he's protected in the State system, and if he needs Federal review, he can come here on direct.
03-9046 +++$+++ 9623 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the problem is the eight claims that he is now exhausting in State court, if the State's approach is taken, he forever sacrifices, loses the right to Federal review of those eight claims.
03-9046 +++$+++ 9624 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. He can come to -- here -- this Court on direct review.
03-9046 +++$+++ 9625 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Excuse me. Under direct review? Is --
03-9046 +++$+++ 9626 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He can come to this Court on certiorari after the State decision in the second -- in the second habeas.
03-9046 +++$+++ 9627 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, as a matter of --
03-9046 +++$+++ 9628 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's fair for you to say he loses his right to Federal review --
03-9046 +++$+++ 9629 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Your --
03-9046 +++$+++ 9630 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- because we wouldn't necessarily take that case, whereas you say he'd have a right to go into Federal -- Federal habeas. So --
03-9046 +++$+++ 9631 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you for throwing me the life preserver. I -- (Laughter.)
03-9046 +++$+++ 9632 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I understand this Court grants fewer than 1 percent of the cases, so as a practical matter, for there to be an independent review, as contemplated by section 2254(a), it does require a district court's involvement. As a practical matter, this Court on -- on cert can't be expected to -- to conduct that review. 2254(a), which is the statute that grants jurisdiction, does indicate that a Federal court shall entertain causes of this action. Now, 2254(b) does contain the exhaustion requirement in (b)(1) and makes clear in (b)(2) and (b)(3) that it is not jurisdictional. The -- the irony --
03-9046 +++$+++ 9633 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would we have to -- would we have to reverse in part Rose against Lundy to go with your view?
03-9046 +++$+++ 9634 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe so anymore than you would have to reverse in part Rose v. Lundy to go with the State's view. And let me explain. The approach of stay and abeyance is more consistent with the principles of Rose v. Lundy than the -- than the State's position. In Rose, this Court was concerned about comity and federalism. It -- it serves the interests of comity and federalism for a Federal court to suspend consideration of a Federal habeas case while a petitioner has a remedy and is actually pursuing it in State court. The petitioner may be granted the remedy in State court, which in turn would render the Federal petition moot altogether. There could be, between the competing State and Federal cases, competition for the transcript or even the exhibits. Rose v. Lundy also contemplated a process that would not unreasonably impair the petitioner's right and would give the petitioner the choice of either purging the unexhausted claims or going back to State court, exhausting the claims, and then coming back to Federal court with one fully exhausted --
03-9046 +++$+++ 9635 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that was at a time before the AEDPA enactment that tried to put limits, time limits, on these things.
03-9046 +++$+++ 9636 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The only --
03-9046 +++$+++ 9637 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's what we run into here, is a total frustration almost of Congress' time limiting.
03-9046 +++$+++ 9638 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I -- I would disagree that this is a total frustration of Congress' time limiting -- time limiting. Again, Congress granted unlimited tolling while a petitioner is pursuing remedies in State court. Congress was not attempting to frustrate or impede the petitioner's right to seek State court relief or --
03-9046 +++$+++ 9639 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but Congress, I think under this scheme, envisioned having someone make all the State claims the first time around, gather them up and go to State court, and let them take as long as they like -- no statute will run until that's complete -- and then go to the Federal court. And this does an end run around that approach.
03-9046 +++$+++ 9640 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I don't believe this does an end run because this is different than -- than tolling. First of all, in tolling it's automatic under a statute, and stay and abeyance is always discretionary with the court. The court can grant or deny the stay and abeyance order, alter it, revoke it, or in this case, put time limits on the petitioner's right to go back and -- and forth. Also, Mr. Rhines has complied with the AEDPA period. He did file. The unusual situation that could result here is if you assume a prisoner B who's in Rhines' same position and files at the same time, when only approximately 9 days have elapsed on his AEDPA period. Petitioner B, let's assume, files three claims: one exhausted, one unexhausted, and one there's a dispute over whether it's exhausted or not. Because petitioner B had a short trial perhaps or draws a different judge in the District of South Dakota, the judge can rule on that case perhaps within 100 days. It gives petitioner B, under my scenario, 256 days to go to State court, exhaust his claims, and then come back into Federal court with one fully exhausted petition. Rhines would be in the position of prisoner B in my scenario but for the fact that his claims are -- are much more complicated. He is serving a -- a sentence of death. He did have a long trial. And under that situation, it's simply unfair to someone in Rhines' place to have his right to a review of the eight unexhausted claims cut short because he had a complicated case or the district court was slow in getting to a decision.
03-9046 +++$+++ 9641 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That -- that happens often with time limits. I mean, it depends on when the court finishes its job and so forth. What do you do about -- about our opinion in -- in Duncan v. Walker where we refused to toll the limitation period during the pendency of a -- of the Federal proceeding and -- and said, in -- in justification of that holding, by tolling the limitation period for the pursuit of State remedies and not during the pendency of applications for Federal review, 2244 provides a powerful incentive for litigants to exhaust all available State remedies before proceeding in the lower Federal courts? You are now urging us to eliminate that incentive entirely.
03-9046 +++$+++ 9642 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
03-9046 +++$+++ 9643 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why not?
03-9046 +++$+++ 9644 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe there's always a very powerful incentive to prisoners to exhaust in full because if they file a mixed petition, they're not going to have relief.
03-9046 +++$+++ 9645 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Sometimes --
03-9046 +++$+++ 9646 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ (b)(1) says it shall not be granted.
03-9046 +++$+++ 9647 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you said -- you said in your brief that -- that it's always in the -- with the possible exception of capital cases, it's always in the interest of a habeas applicant to get -- get it decided as soon as possible. That's not really true. Sometimes it's -- it's in his interest to delay it as much as possible. Witnesses will die. People will move away. All sorts of -- there are all sorts of reasons why he -- he might want to delay the process.
03-9046 +++$+++ 9648 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think those illustrations are -- are the -- very much the exception rather than the rule, as this Court recognized in --
03-9046 +++$+++ 9649 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what about the exceptional case? I mean, how do we avoid the exceptional case?
03-9046 +++$+++ 9650 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that's then the district court's task that has more familiarity with the particular case.
03-9046 +++$+++ 9651 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which can do what?
03-9046 +++$+++ 9652 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The district court can refuse to issue a stay and abeyance order. It can put tight deadlines on a stay and abeyance order. The district court can revoke a stay and abeyance order. It can alter it if there is delay. I believe that is a decision that should be left to the court that's closest to the facts, the district court.
03-9046 +++$+++ 9653 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you think the procedure should be any different between capital cases and noncapital cases? We're basically talking about what would be an abuse of discretion, as you indicated at the outset. Do you think the same rule should apply to both, or do you think there might be -- because there is a greater incentive to delay in the capital case than there is in the noncapital case.
03-9046 +++$+++ 9654 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You're right, Justice Stevens. I -- it's difficult to develop a rule that distinguishes between the two classes, but I do believe that's in the realm of the discretion of the district court. The district court can set very tight deadlines on a petitioner returning to State court to exhaust remaining remedies like the Court here set a deadline of 60 days, and in the circuit courts, more commonly the deadline is 30 days to go back to State court and then 30 days to return once the State proceeding is -- is completed.
03-9046 +++$+++ 9655 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you -- you don't really think we can hold that line, giving less favorable treatment to somebody who's -- who's trying to argue against a capital penalty, less favorable treatment to him than somebody who's -- who just wants to avoid 10 years in jail? That's just not going to work.
03-9046 +++$+++ 9656 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not advocating less favorable treatment or more favorable treatment for that matter. I believe the rule has to be consistent between the two.
03-9046 +++$+++ 9657 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Could you just replay the order of the proceedings? The first petition is to the State court. Was the defendant in that first State habeas represented by counsel?
03-9046 +++$+++ 9658 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, he was, Your Honor.
03-9046 +++$+++ 9659 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So he's been represented by counsel throughout.
03-9046 +++$+++ 9660 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, he filed his Federal habeas petition pro se. The counsel was appointed shortly afterwards, yes, Your Honor.
03-9046 +++$+++ 9661 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the -- the State application that preceded that -- he was represented there.
03-9046 +++$+++ 9662 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-9046 +++$+++ 9663 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And then he lost his representation when he came to the Federal court?
03-9046 +++$+++ 9664 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, a different lawyer gets appointed in the Federal court system than represented him in the -- in the State court system.
03-9046 +++$+++ 9665 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How -- how general is -- is this problem? And -- and to what extent is it tied to the fact that you can bring a second habeas in South Dakota? I mean, in -- in most States, if this had happened, I presume, when you went back to the State court, the State court would say, you know, you didn't -- you didn't put in these claims the last time around and they're procedurally barred. Isn't that what would happen in -- in most other States?
03-9046 +++$+++ 9666 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's an excellent point and on footnotes 9 and 10 of the yellow brief, there is a litany of the State procedural rules, and many States would bar a second habeas or would put a strict time limit that the petitioner could not meet. South Dakota is different in that regard.
03-9046 +++$+++ 9667 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
03-9046 +++$+++ 9668 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ South Dakota allows a second habeas and, indeed, allows a petitioner in a second habeas to show cause for a default by proving that he received ineffective assistance of habeas counsel, which is unique among the States. Yes, many States that don't allow a second remedy would -- would not -- we would not be in this situation that we are here. However, South Dakota does. And in fairness to Mr. Rhines, it makes sense to stay the Federal petition and to allow him to exhaust his State court remedies on satisfaction of Rose and to come back with a fully exhausted claim.
03-9046 +++$+++ 9669 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Unless what would happen in these other States as the -- is that the court would grant the -- the stay of proceedings in order to let him go back to the State court and be told after however long it takes that -- that his -- his claims are now procedurally barred. Do you think the Federal court would simply make its own determination that the claims would be rejected by the State court and therefore it would not stay? I don't know.
03-9046 +++$+++ 9670 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I believe that would -- could be and -- and should be a factor in a district court's consideration of whether to grant stay and abeyance, Your Honor. The State has expressed concerns about delay. There are four reasons why those concerns are overstated. First, in the 3 and a half years since Duncan v. Walker was decided, there have been cases in circuit courts of appeals that have approved of the stay and abeyance procedure. None of those cases evidence that it is being misused or is causing undue delay. Second, the terms of the stay themselves can restrict a petitioner's delay, as I've already recounted the -- the district court did here. Third, this Court in Slack v. McDaniel addressed very similar arguments to what the State is making now about delay through a second habeas filing. And this -- this Court noted that the Rules of Civil Procedure vest courts with flexibility to prevent vexatious or delayed litigation and that there are other reasons why those concerns expressed in Slack v. McDaniel were -- were overwrought. Fourth and finally, on the prospect of delay, as already mentioned in answer to one of Justice Scalia's questions, the vast majority of petitioners are not under a capital sentence. It is not hyperbole to say that 99.4 percent of Federal section 2254 habeas petitioners are not serving -- are not under a capital penalty. Those are statistics from the year 2000 from the Department of Justice. And those, I think with the extremely rare exception, are people who believe rightly or wrongly that they're in prison because their constitutional rights have been violated and would not favor delay under any circumstance. So the delay concern that the State raises is -- is overwrought. Unless there are other questions, I'd reserve my remaining time for rebuttal.
03-9046 +++$+++ 9671 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Lang. General Long, we'll hear from you, please.
03-9046 +++$+++ 9673 +++$+++ FALSE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: Congress -- excuse me. Congress carefully crafted a scheme designed to encourage State prisoners first to exhaust all of their State post-conviction remedies and then to file their habeas corpus petitions as soon as possible. The congressional design includes three mutually dependent statutes, including a 1-year statute of limitations, a tolling provision, and a total exhaustion requirement, the combined effect of which is supposed to reduce delay, serve the principles of comity, finality, and federalism. However, stay and abeyance erodes each side of this triangular statutory design. Stay and abeyance allows tolling in Federal court when Duncan said there should be none. It extends the statute of limitations beyond 1 year, and it ignores the total exhaustion requirement of 2254(b). The result is that State prisoners, especially capital prisoners, are encouraged to file mixed petitions and rewarded with delay if they do so.
03-9046 +++$+++ 9674 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what is your answer to -- to your -- your brother's answer on this, and -- and that is, that the -- the existence of stay and abey as a possibility is not a right to stay and abey? And -- and if a district judge finds that a -- there is reason to believe that the defendant is gaming the system, because he's a capital defendant and wants to delay or wants delay for any other reason, there's -- there's no requirement that -- that there be a stay and -- and abeyance order. And why -- why doesn't that take care of what I -- I think is a very legitimate issue that you raise? Why isn't that a -- a sufficient answer to it?
03-9046 +++$+++ 9675 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that -- I think that the -- the answer is that Congress designed the system to resolve all those issues in State court first. I think one of the things that needs to be kept in mind is that an unexhausted claim is, by its very nature and by definition, a claim where there's an available remedy in State court.
03-9046 +++$+++ 9676 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, again, there's no question about that. And -- and in a perfect -- sort of in a perfect system, I think your objection would be unanswerable. The trouble with the system we've got is -- is the trouble that -- that is -- is undisputed here, and that is, that most of these petitions, the overwhelming number of them, are going to be pro se petitions. Exhaustion can -- can be tricky. The -- the statute of limitations is -- is going to run and -- and an individual can end up in the -- in the situation that this one had. What -- what he's asking for, in effect, is how do we tinker with the system, in effect, to prevent its being a -- a very unfair burden on people who don't have the sophistication to help themselves.
03-9046 +++$+++ 9677 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think the system needs to be tinkered with, Your Honor.
03-9046 +++$+++ 9678 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I -- I know but there's -- what -- what is your answer on the merits to the fact that most of the people who are going to ask for stay and abey are -- are going to be pro ses, or at least have gotten into the mess that they're in as a result of pro se representation, and -- and that -- that exhaustion in close cases can be a very -- very tricky issue? What -- what's your response to that?
03-9046 +++$+++ 9679 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My response is in two parts. First of all, Your Honor, I agree with you that exhaustion can be a tricky issue, but it's -- it's the most tricky in the question about whether or not the question has been fairly presented. The less tricky portion of the question is whether or not the claim is unexhausted, having been -- that means there's an available remedy in State court. The easy way to sort that out is just to file your claim in State court. If there is in fact an available remedy, then you get tolling, and that solves the problem. I --
03-9046 +++$+++ 9680 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not sure -- I'm not sure it's -- it's true, are you, that -- that the reason people get into these situations is because they were pro se. That wasn't the case here. I -- I think they probably get into this situation very often because they have a better or at least a different lawyer at the Federal habeas stage than they had at the State habeas stage, and this new lawyer sees additional claims that -- that he wants to make. Isn't -- isn't that exactly what happened here?
03-9046 +++$+++ 9681 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- I -- I suspect that's the typical case in -- in capital cases. Mr. Rhines is currently --
03-9046 +++$+++ 9682 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's typical. I mean, what I have in the statistics is that about 36 percent of all the habeases are dismissed for failure to exhaust, and 93 percent of all of the habeas petitioners are pro se. Now, the conclusions I draw for that is it's probably these pro se people -- I mean, 93 percent are pro se -- that will get the procedural dismissals, and certainly a third or so, if we agree with you, of all of the habeas petitions filed in -- in Federal court are going to be finished, terminated. The door is closed because it takes a Federal court about nine months on average to process a habeas. Now, you just take that and you say, we've closed the door of the Federal court to a third of all the habeas petitioners. And if I had thought that Congress wanted that, then I might say fine. But I thought that Duncan -- and I know I was on the other side of the case, but I felt the majority had a pretty good point on the language, to tell you the truth. But what I didn't think they had such a -- I mean, I couldn't find much of a congressional purpose one way or the other there. I thought the purpose of the statute of limitations is really to get people to file their petitions. Once they file them, they have a year but it's tolled. You know, I mean, you understand the thing. I -- I'm really looking for you to tell me some tremendously strong congressional purpose that's served so strong that you want to knock a third of the petitioners out of Federal court forever.
03-9046 +++$+++ 9683 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it's less complicated than that, Your Honor. I think that it --
03-9046 +++$+++ 9684 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's pretty simple.
03-9046 +++$+++ 9685 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
03-9046 +++$+++ 9686 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The door is closed forever. I mean --
03-9046 +++$+++ 9687 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I disagree. I disagree with you, Justice Breyer. I -- I think that even for a pro se petitioner, I do not think it is more difficult for him to find the door of the State courthouse than it is to find the door of the Federal courthouse. And the key, I think, to your argument is that claims are unexhausted by definition if there's an available State court remedy. Therefore, by definition, they ought to be going to the State courthouse rather than the Federal courthouse.
03-9046 +++$+++ 9688 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The --
03-9046 +++$+++ 9689 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They seem to have made a mistake here quite a lot. Why do these statistics come out the way they do? I mean, it is just as easy.
03-9046 +++$+++ 9690 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I can't --
03-9046 +++$+++ 9691 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I agree with you. Why -- why aren't they filing -- why -- why are they all filing so many, 36 percent filing in the wrong court? Why is that?
03-9046 +++$+++ 9692 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You know, it -- it could be, I suppose, that these people have nothing else to do sitting around in the jailhouse, and -- and having written their State petition, they sit around for a few more months and they say, you know, there are a few more claims I could make. I think that's -- it's as simply as that. And -- and what the statute is designed to do, I -- I think you're telling us, is to say, look it, be careful. Make all your claims in the State court the first time. That doesn't seem to me to be too much to demand.
03-9046 +++$+++ 9693 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, I think that's exactly what the statute -- the statutes -- the three read together and enforced together --
03-9046 +++$+++ 9694 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they're all --
03-9046 +++$+++ 9695 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I take it -- I take it that one of the answers to the observation that the Federal court is closed to a third of the claims is that that's not true with respect to the exhausted claims. The -- the petition can simply be purged as to unexhausted claims and as to the exhausted claims, the courthouse door remains open.
03-9046 +++$+++ 9696 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I agree with that. The -- let's -- let's deal with the facts in this case.
03-9046 +++$+++ 9697 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you --
03-9046 +++$+++ 9698 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Please.
03-9046 +++$+++ 9699 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- with respect to this case? I thought this case was such a good illustration of the problem. If claims came into the Federal court neatly labeled, exhausted, unexhausted, then I think that you would have a very strong argument. But as this case illustrates, the question of whether it's been exhausted or not is something on which people can disagree. And I suppose why the district court took well over a year to decide this case is the petitioner says, I've exhausted everything, and the prosecutor says, you have not exhausted 12. And the district court is going by the -- going over these one by one and says in the end, you're both wrong. My list is eight. And it's that problem of has this claim been exhausted. Now, if it was a case of deliberately withholding a case from State court and bringing it up fresh in -- in the Federal court, that would be a case where the Federal court should say, go away, you didn't even try. But what do you do with these cases where it's really hard to tell whether the claim has been exhausted?
03-9046 +++$+++ 9700 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was not the situation in this case, Your Honor.
03-9046 +++$+++ 9701 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then why did the -- the district judge says four on the State's list have been exhausted?
03-9046 +++$+++ 9702 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- factually the court -- the court examined the amended petition and concluded that eight claims in the amended petition were unexhausted. The problem is this -- or -- or at least the variance in the facts from what you suggest is this. Mr. Rhines filed an amended petition in November of 2000 with counsel, after having been through all the record. He admitted in his amended petition that four of the claims were unexhausted. He still had 80 days left to run on the statute of limitations. So he conceded in his amended petition in Federal court that he still had 80 days to run -- while there was still 80 days to run on the statute of limitation, that four of the claims he submitted in the petition were unexhausted. That's not difficult to sort out because defense counsel admitted it, as he pled them. And so there isn't tricky question about whether there were unexhausted claims in this petition. Now, that was in November of 2000. He waited until the court decided the decision in July of 2002 and didn't pursue his State court remedies until the court ordered him to do that in July of 2002. And he filed his State habeas to exhaust those admittedly unexhausted claims.
03-9046 +++$+++ 9703 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So that -- that would take care of the four claims. How about the other four?
03-9046 +++$+++ 9704 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it doesn't make any difference at that point, Your Honor. If there's a single, solitary unexhausted claim, the problem --
03-9046 +++$+++ 9705 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, they --
03-9046 +++$+++ 9706 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- is not -- is not worse if there gets to be 12 or 15.
03-9046 +++$+++ 9707 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But those could be -- those could be dropped out of the Federal complaint. There you're saying, district judge, you would be abusing your discretion because admitting that he hadn't exhausted these, he should have gone immediately to do that. But what about the other four?
03-9046 +++$+++ 9708 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if he -- if he goes within the 80 days and immediately files to pursue in State court his unexhausted claims, the statute is tolled. He doesn't lose the statute.
03-9046 +++$+++ 9709 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even without going back to the State court, I don't see anything in this statute which indicates that Congress expected everybody who comes into Federal court with unexhausted claims to have time to remedy that defect by running back to State court and -- and filing. This statute doesn't give any such indication. And it's clear that will never happen if he files on the 364th day after the conclusion of the State proceedings. Right? I mean, his year is up already. Even if the judge decides the question the next morning, it's too late. So I -- I don't know why we have to be concerned about giving him some entitled second chance to go back to -- to State court. I don't see anything in the statute that -- that guarantees or that even envisions that. And I -- I --
03-9046 +++$+++ 9710 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor.
03-9046 +++$+++ 9711 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I don't agree with that you were saying or you do agree with that, I know. The -- but the -- the question that I would have is, is there anything the other way? I mean, in Duncan, you know, I was dissenting and the thing that sort of moved me is I couldn't imagine Congress really cared about this. I mean, what they do is they want to have you file within a year. And they say, well, but if you filed within a year and you're in State court, we don't care anymore. You're being -- if you file in the wrong State court, you're tolled. We don't really care once you're proceeding. And now, however, if you go in -- into Federal court by mistake instead of State court by mistake, well, you're out of luck on a random basis. Some judges will get you back in on time. Other judges won't. Is there anything in the history or anywhere -- I -- I'm interested in the history from your point of view, as much as the other. Is there anything that suggests that Congress cared about that?
03-9046 +++$+++ 9712 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not that I've found, Your Honor.
03-9046 +++$+++ 9713 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Either way.
03-9046 +++$+++ 9714 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If that's so, then why isn't a system like the one that the Second Circuit described the most reasonable thing to do, that is, to put very tight deadlines both on the petitioner and on the Federal court, that is, to deny -- deny the stay and abey when the prisoner has not been diligent, to put a tight time line on when that prisoner has to go to State court, and a similarly tight line on returning to the Federal court after the State court is done? And you could check against repeatedly abusing this by saying, and you get only one opportunity to do it.
03-9046 +++$+++ 9715 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the answer to the question, Your Honor, is that in order to follow the Second Circuit as you've described, this Court would have to rewrite the interpretation of the exhaustion statute that they issued in Rose v. Lundy. That's my belief because Rose v. Lundy -- or the statute, as interpreted by Rose v. Lundy indicates that at a minimum, the unexhausted claims ought to be dismissed without prejudice and sent back for exhaustion in State court.
03-9046 +++$+++ 9716 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But Rose and Lundy also assumed that they could go back to State court and -- and in -- in fact this could be done without wiping out the claims. And the difference between the situation in Rose and Lundy and the situation we've got now is the difference which is focused, I think, in -- in Justice Ginsburg's four claims as to which there was disagreement even between the district court and -- and the State as to whether there was exhaustion. There -- there isn't a -- a -- as a -- as a systemic matter across the United States, there simply isn't a way for most of these people to go back and litigate their State claims. Rose and Lundy assumed there was. Now there isn't.
03-9046 +++$+++ 9717 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if the petitioner is not capable of going back to litigate the State claim, the claim is not unexhausted by definition. And --
03-9046 +++$+++ 9718 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It may not be -- it -- it will be waived. I mean, if -- if -- on your theory, he -- he jumps from the frying pan of nonexhaustion into the fire of waiver. That's -- that's no answer to the problem.
03-9046 +++$+++ 9719 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ See, you could -- there are two things in Rose v. Lundy, and everybody agrees with the one, you must exhaust in State court. You cannot have the Federal court take a first view of that question. You -- you must exhaust. And -- but then Rose v. Lundy also said without prejudice, and your reading strikes out without prejudice not based on the defendant's conduct, not based on the petitioner's conduct, but because it took the district court more than the limitation period just to sort out which claims were exhausted and which weren't.
03-9046 +++$+++ 9720 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think there are two responses to that, Your Honor. First of all, the -- the fact of whether it is without prejudice in fact or in law is driven by how much time is left on the statute of limitations. A dismissal without prejudice at the time the amended petition was filed in this case would have left 80 days on the statute and he could have pursued his -- his remedy in State court and tolled the statute. Now, in the -- in the more common situation with the habeas petitioner, I think the answer has to be Congress has changed the landscape. They have changed the landscape relying upon the total exhaustion rule in -- that they enacted and that this Court has interpreted. And they have added the statute of limitations and they've added the tolling provisions, and that has to be entered into the computation. Now, I think that that simply raises the bar for all petitioners to make doubly sure that if they have a claim, they have presented it to a State court judge because they -- they --
03-9046 +++$+++ 9721 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the -- the troublesome thing is some petitioners will be able to do just what you said in South Dakota, go back to the State court a second time, because they had a swift district judge, and some won't because the district judge was slow. So to treat identically situated petitioners differently not because of any lapse on the petitioner's part but solely because one had the luck to get before a swift district judge and the other, the bad luck to get before a procrastinator, that seems arbitrary and not anything that Congress built into the statute.
03-9046 +++$+++ 9722 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I -- I struggle with the -- one of the premises of your hypothetical, and the portion I struggle with is the -- is the situation where the petitioner, through no fault of his own, either -- and I think that's implied in your hypothetical -- doesn't go to State court. I -- I think that that is -- I think that that's the --
03-9046 +++$+++ 9723 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, did go. Did. Every one of these cases, I say if they came rushing to the Federal court first, no Federal judge would even consider giving them a stay so they can go to the first -- first time. But these -- these come up where someone has gone to the State court and then they come to the Federal court with a new petition and there's arguments about what they exhausted and what they didn't. I'm -- I'm leaving out the person who never went to the Federal -- State court at all. That person is -- is not the category that this case represents. This case represents the one who goes to State court and comes to the Federal court and has arguably some additional claims.
03-9046 +++$+++ 9724 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- there's the -- the difficulty in the stay and abeyance procedure, as it is currently practiced, I think, is that there is no set of standards, other than the three statutes that we've -- that we have discussed, to guide the district court's discretion in when they give stay and abeyance.
03-9046 +++$+++ 9725 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ General Long, do -- do those States that apply stay and abey make a distinction between whether the person who comes with unexhausted claims has exhausted some claims in State court and ones who haven't?
03-9046 +++$+++ 9726 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the predicate to getting stay and abeyance, Your Honor, is that there has to be at least the presence of one exhausted claim and one unexhausted --
03-9046 +++$+++ 9727 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why should that be?
03-9046 +++$+++ 9728 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that that follows from -- I think that follows from Rose v. Lundy which talked about a mixed petition and that's the -- that's the factual background.
03-9046 +++$+++ 9729 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you get a second bite, why shouldn't you get a first bite? I mean, I -- I don't see -- I don't see any reason for treating preferentially the -- the person who files in State court but does not file new claims, which he should have known to file at that time, and treating the person who comes to the Federal court with those new claims but doesn't have -- doesn't have even one that he took to State court. I -- I don't see any reason to be merciful to one and not the other.
03-9046 +++$+++ 9730 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the --
03-9046 +++$+++ 9731 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The -- the --
03-9046 +++$+++ 9732 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you're -- but you're telling me the States do draw a distinction.
03-9046 +++$+++ 9733 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think --
03-9046 +++$+++ 9734 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean -- I mean --
03-9046 +++$+++ 9735 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- it's not distinction. I'm sorry. The Federal court --
03-9046 +++$+++ 9736 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, hasn't the second --
03-9046 +++$+++ 9737 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the difference is that one of those petitions could be totally dismissed and the other one would not be. If there were no exhaustion whatsoever, they -- they'd plainly dismiss the Federal case.
03-9046 +++$+++ 9738 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think so, yes, Your Honor.
03-9046 +++$+++ 9739 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Whereas, if there's one exhausted claim, they could -- they could keep the Federal -- petition in Federal court and stay it and let the unexhausted claim be exhausted.
03-9046 +++$+++ 9740 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's -- that's the -- it's the stay that we're having the problem with, Justice Stevens. But -- but if there is the presence of one unexhausted claim, the -- the total exhaustion requirement --
03-9046 +++$+++ 9741 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the judge could dismiss the others.
03-9046 +++$+++ 9742 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He -- he can dismiss the unexhausted one and move forward. And -- and, of course, what has happened in the -- since the -- the landscape has changed since 1982 and because now the 1-year statute and the tolling provisions, there is more sanction for that dismissal under the total exhaustion requirement than there used to be.
03-9046 +++$+++ 9743 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ General Long, if you were designing a system to set standards to guide the Federal judge in deciding how to treat these, what standards would you set?
03-9046 +++$+++ 9744 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's a hard question, Your Honor, because --
03-9046 +++$+++ 9745 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do your best. (Laughter.)
03-9046 +++$+++ 9746 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think this, Your Honor. I -- I think the court, faced with a mixed petition, ought to first ask why have you not -- if -- if there is truly an unexhausted claim in this petition, why did you not present that claim previously in State court. And after that, if -- if the -- if the answer to that is not satisfactory, I think that the -- I think that that ought to be tested on, for example, the cause and prejudice standard or the actual innocence or fundamental miscarriage of justice standards which this Court has announced to cure procedural defaults in extreme cases. But in the absence of those type of standards, I think that stay and abeyance has been simply applied too broadly and this case is a classic example of the misapplication of stay and abeyance.
03-9046 +++$+++ 9747 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, are you suggesting then that we could have a rule, oh, somewhat like the grant of a preliminary injunction? If it's a likelihood of success on the merits, if it's a fundamental right, if there's reason for maybe mistake and not having exhausted, then -- then you'd allow a stay and abeyance?
03-9046 +++$+++ 9748 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I --
03-9046 +++$+++ 9749 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because if you have that, we then have a new Gothic jurisprudence where we're reviewing discretion on a collateral issue.
03-9046 +++$+++ 9750 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but --
03-9046 +++$+++ 9751 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Rococo I think.
03-9046 +++$+++ 9752 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- the difficulty with the way it is now, Your Honor, is there is no review of the discretion of the district courts at all. I mean, they simply do it, and --
03-9046 +++$+++ 9753 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I suppose the suggestion I made --
03-9046 +++$+++ 9754 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and it's --
03-9046 +++$+++ 9755 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- is preferable than the one I gave. Would you adopt that or would you insist just that there be no stay and abey at all?
03-9046 +++$+++ 9756 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, our first position, obviously, is no stay and abey at all, that the unexhausted claims ought to be dismissed, as the Eighth Circuit said in this case. And if they -- if they are truly unexhausted, then there is going to be a remedy in State court, and State courts are perfectly capable of identifying constitutional remedies and -- and meting out the requirements. I've had -- I've had South Dakota judges send murder cases back to me to try after 12 years, and it's -- it's a burdensome thing, and those cases need to move forward. But what I would envision, Justice Kennedy, is this, that the rule ought to be that -- that the -- the -- that the case is sent back to State court if there is truly, as -- as the name implies, an unexhausted claim, implying that there is an available State remedy. If -- if resolution in the State courts does not resolve it, if the case comes back in some fashion, then the court needs to apply some standards like cause and prejudice or fundamental miscarriage of justice, which -- which is what is applied in -- in procedural default cases, and -- and deal with it on that basis. But the -- the current lack of discretion with reference to how stay and abeyance is applied is in my judgment the -- that is the -- that is the most fundamental problem with --
03-9046 +++$+++ 9757 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But again --
03-9046 +++$+++ 9758 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- stay and abeyances.
03-9046 +++$+++ 9759 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I come -- I come back to the -- the Second Circuit tried to deal with that problem and why isn't that adequate? They didn't leave the district judges to do whatever was their will.
03-9046 +++$+++ 9760 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- well, the -- the Second Circuit followed very closely to what the -- what the district court did here, Your Honor, but what I did not see in the Second Circuit opinions and frankly haven't seen in any of the opinions except the Eighth Circuit opinion was any type of analysis about an explanation of why the petitioner hadn't been prudent and hadn't been diligent in State court. And -- and in the absence of any kind of inquiry like that, I think that stay and abeyance simply is -- is -- it's unguided. There are no standards. If there are no questions, thank you very much.
03-9046 +++$+++ 9761 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, General Long. Mr. Lange, you have 7 minutes left, and normally I wouldn't intrude on your rebuttal time, but I would like to ask you to comment on one thought. Do you think it would be appropriate before a district judge ever grants a stay and -- and abeyance procedure, to make some kind of a preliminary, not exactly a probable cause determination, but some kind of a determination as to whether or not there is arguable merit to the State claim that he wants to stay the proceedings to -- to allow him to exhaust?
03-9046 +++$+++ 9763 +++$+++ FALSE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I do, Justice Stevens. I believe that a district court, in evaluating a request for stay and abeyance, should look to make sure that the petition meets the standards of section 2254(b)(2) which is the provision that allows a district court to reach the merits of unexhausted claims to deny them. It's similar to what the Court has now promulgated as rule 4 of the rules governing habeas corpus cases. I think it makes sense for the district court first to look at -- at whether there's merit to the petition because there really is no sense to hold in abeyance, pending exhaustion in State court, claims that lack merit. Obviously, to get stay and abeyance, the petitioner will have had to file timely within his AEDPA period, and the court will have had to have held the case either through the expiration of the AEDPA period or you can imagine some scenarios where on the 364th day --
03-9046 +++$+++ 9764 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it's one thing to say that there's -- it's utterly without merit and he can deny it, which he's entitled to do under the statute. It's another thing to say that there's a high probability of success on the merits. I'm afraid that most of the claims are going to fall in between. The district judge just doesn't know absent testimony, et cetera, et cetera.
03-9046 +++$+++ 9765 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, and those should be circumstances where the State court is left to judge whether the claim has merit while the Federal court proceedings are suspended, are abeyed or held in abeyance. It makes sense, under the exhaustion norms of this Court, to let the State courts pass judgment first on claims that have sufficient merit where they can't be disposed of under rule 4 of the rules governing habeas corpus.
03-9046 +++$+++ 9766 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. -- Mr. Lange, why -- why isn't -- gee, you have Lange and Long. Why isn't Attorney General Long's assertion sensible? That is to say, it's an extraordinary thing to have Federal district courts in all criminal cases reviewing the work of State supreme courts. We -- we got into this in an era when we couldn't trust State supreme courts, especially in racial cases. But that's where we are now. But why is it unreasonable to say, look, you get one shot at coming to Federal court? And if -- if you -- if you bungle that and you haven't exhausted first, we're not denying your claims. Go back to State court. We're just not going to reintervene as Federal courts. Your -- your claims are not dead. Justice is not denied. You just have to go back through the State system and we're not going to blue pencil the work of the State system a second time. That's all. Why isn't that reasonable?
03-9046 +++$+++ 9767 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this is Mr. Rhines' one opportunity. Congress did give in section 2254(a) jurisdiction to the courts and said the Federal courts shall entertain petitions of this -- of this nature. So this is a -- a right that Mr. Rhines has to have these entertained. He filed timely.
03-9046 +++$+++ 9768 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, to have exhausted claims entertained. Right? Is there some -- do you say there is some absolute right to have the Federal court hear unexhausted claims?
03-9046 +++$+++ 9769 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, under (b)(1), a claim must be exhausted to support relief from a Federal court. That is right, Your Honor. And these claims -- if under the petitioner B scenario, the court had ruled promptly or the claims were less complex, allowing them to be disposed of earlier, Mr. Rhines could have had or -- and should have all of his claims before the district court to be resolved. The Court needs to be watchful here not to penalize Mr. Rhines and people who are in similar situations because they have complex claims.
03-9046 +++$+++ 9770 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, this is not a pro se petitioner.
03-9046 +++$+++ 9771 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. He is represented by counsel, obviously, Your Honor. I -- I think it inappropriate to draw lines between pro se and represented counsel, though, in the realm of habeas. That I think invites trouble. So the rule you formulate is obviously not only for Rhines but for pro se litigants as well that -- that deserve consideration. This exhaustion rule is not to be an -- a trap for the unwary pro se petitioner. The whole purpose of the exhaustion rule, as this Court said in Keeney v. Tamayo-Reyes, is to -- not to erect a hurdle on the path to Federal habeas court, but to channel claims into an appropriate forum. And stay and abeyance does just that. It prohibits further proceeding on a mixed petition in Federal court and channels, indeed requires, as a term of the order that the petitioner go and exhaust the remaining State remedy and come back to court with one exhausted claim. That is what Rose v. Lundy contemplated and allowed with the dismissal without prejudice.
03-9046 +++$+++ 9772 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Earlier you -- you suggested that in your view the district court could deny it.
03-9046 +++$+++ 9773 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If under section 2254(b)(2) it does not meet the standard, yes. Congress has allowed, because exhaustion is not jurisdictional, for district courts to reach the merits, albeit to deny unexhausted claims. That's --
03-9046 +++$+++ 9774 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Lange, you were appointed by the Court, and on behalf of the Court, I want to thank you for your services and for the quality of your services.
03-9046 +++$+++ 9775 +++$+++ TRUE +++$+++ MR. LANGE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
03-9046 +++$+++ 9776 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The case is submitted.
03-9168 +++$+++ 9780 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We will hear argument in Shepard against the United States. Ms. Thompson.
03-9168 +++$+++ 9782 +++$+++ FALSE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: This case involves the proper application of the categorical method of analysis that this Court prescribed in Taylor against United States, and it involves the application of that categorical method to what is described as ambiguous burglary convictions obtained under nongeneric burglary statutes with boiler plate complaints and a general finding of guilty following a plea proceeding. At stake --
03-9168 +++$+++ 9783 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what do you mean by a -- just so we get our terms defined, what do you mean by a nongeneric burglary statute --
03-9168 +++$+++ 9784 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this case --
03-9168 +++$+++ 9785 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- and a generic burglary statute?
03-9168 +++$+++ 9786 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, a generic burglary statute, as -- as defined in the Taylor case is one that criminalizes unlawful entry into a building or a structure with intent to commit another crime. Those are the three elements of generic burglary. Those apply if any -- if a State statute covers those three, it's considered generic burglary and would then qualify as a predicate violent felony under the Armed Career Criminal Act. A nongeneric --
03-9168 +++$+++ 9787 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now, do you -- do you agree that all the papers showing the arrest and the investigation and so forth show that this was in fact a building --
03-9168 +++$+++ 9788 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
03-9168 +++$+++ 9789 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that was burglarized?
03-9168 +++$+++ 9790 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do not. I -- as this --
03-9168 +++$+++ 9791 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does it show it was a vehicle?
03-9168 +++$+++ 9792 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It doesn't show that it was a vehicle.
03-9168 +++$+++ 9793 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Or a boat?
03-9168 +++$+++ 9794 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It doesn't show that it was a boat.
03-9168 +++$+++ 9795 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Or a motorcycle?
03-9168 +++$+++ 9796 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It doesn't show that it was a motorcycle.
03-9168 +++$+++ 9797 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It shows nothing? None of the supporting documentation shows what it was?
03-9168 +++$+++ 9798 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Those supporting documents do not play a role in the adjudication.
03-9168 +++$+++ 9799 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that isn't my question. I asked you whether any of them show that it was, in fact, a building or a car or a boat.
03-9168 +++$+++ 9800 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ None of them shows that it was anything other than a building.
03-9168 +++$+++ 9801 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you.
03-9168 +++$+++ 9802 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The police reports and the complaint applications, but the statute --
03-9168 +++$+++ 9803 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why -- why are you resisting that the -- that the police report gave an identified building? I mean, you're -- you're saying that one mustn't look behind, in the case of a guilty plea, to find the police report or even the police application for complaint. But there isn't any question, is there, that the police reports in fact gave addresses of particular buildings?
03-9168 +++$+++ 9804 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is no question of that. When you look at the police reports, if you read those police reports, some of which you can actually read, they do describe buildings and they describe addresses and hallways and things like that.
03-9168 +++$+++ 9805 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So what -- what you're saying is the conviction itself didn't show that, and so the question is whether you can look to documents that in fact showed it.
03-9168 +++$+++ 9806 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's -- that's correct, Justice Ginsburg.
03-9168 +++$+++ 9807 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So the rule you would have us follow does result in a -- a super technicality in a sense of what -- what was on the record at the time of the plea.
03-9168 +++$+++ 9808 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, actually the district court established that this was not on the record at the time of the plea. The district court took evidence on this issue. The statutes to -- that are underlying these convictions, to get back to Justice Scalia's question, are nongeneric, and they are nongeneric in the sense that they make it unlawful to break into structures other than buildings or in addition to buildings.
03-9168 +++$+++ 9809 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose -- suppose in the earlier conviction, the police report is in the court. It's not part of the record, and then the court says, I've read the police report. Is that accurate? And the client -- or the defendant says, yes. Then later, can we go back and look at the police report even though it was not annexed as part of the record?
03-9168 +++$+++ 9810 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that calls into question what kinds of documents can be examined in terms of making a -- a determination as to whether this offense was categorically a crime of violence, that is, that it was generic burglary. It's our position that there's a limitation, and the limitation is imposed by Taylor itself, that the question being answered be made a question of law, that it is a question of law, that it's a matter of law that you make the determination.
03-9168 +++$+++ 9811 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if the defendant at the plea colloquy had said, yes, I entered X building or even in the plea bargain had said that, even though the charge just read the boiler plate, the whole statute, buildings, vessels, et cetera, if he had admitted it either in the plea colloquy or in the plea bargain, wouldn't that be enough?
03-9168 +++$+++ 9812 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If we had a contemporaneous record of the adjudication of this conviction that showed an actual admission to breaking into a building, I believe that that would satisfy a sort of modified Taylor categorical approach.
03-9168 +++$+++ 9813 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I -- I don't understand your reading of Taylor. As I've read that case many times, it seemed to me that that was making a perfectly sensible point. At the end of the opinion, Justice Blackmun says, you know, there are some States like Massachusetts, for example, that instead of just saying burglary, they say burglary of a -- of a ship or a car or a building. And that leads us to answer a more general question. Well, in context, that more general question is whether you ought to go look into how a particular burglary was committed to see if there was really violence or not. And he says no. Just look to the definition of the crime. That's what he says. That will end it. Now, he says we agree, because I started here, that we have a couple of States with some weird statutes, and what you have to do in those States is you won't know if it's a boat or a car or -- so he says, for example, in a State like the one we have, if it shows it's charged us with a burglary and you have to find out, you know, here's what you do. It says you may have to go beyond the mere fact of conviction. So he says go look to the indictment or information and jury instructions. That isn't a limiting phrase. That's for example. He just thought that in those cases, that's what -- all you'll have to look to, for example. We happen to have an unusual case where there are no jury instructions because he pled guilty. So what's the harm of going looking to the documents that will show, in an uncontested way, just what the address on these pieces of paper show? There are no boats, you know, in Watertown. It's not a dock, I don't think, or at least not in that part of it. So -- so I mean, what's the problem here?
03-9168 +++$+++ 9814 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the --
03-9168 +++$+++ 9815 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why is everyone so mixed up? I must be missing something.
03-9168 +++$+++ 9816 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The example that's given, the charging document and jury instructions -- let's suppose that instead of -- of guilty pleas, Mr. Shepard was tried and he was tried on this nongeneric, boiler plate complaint, and there were no jury instructions available.
03-9168 +++$+++ 9817 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What's the problem? I grant you I could imagine a case that could be a problem. Maybe it was a houseboat. Okay? (Laughter.)
03-9168 +++$+++ 9818 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Or maybe it's like a trailer. So if we run into that case, we'll deal with it. You know, I'm perfectly capable of thinking that if this is a charge where there is a dispute on the contested point, fine, we won't take that dispute into account, maybe decide it in the favor of the defendant, maybe. But this is not that case. And by the way, if he's going to say, how do you know? I'd say, I know. I know Boston and I also know that breaking into a boat at least is unusual. So if he thinks it wasn't that, let him say so.
03-9168 +++$+++ 9819 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The district court did actually entertain this issue, Justice Breyer, and what they -- what the district court found was there wasn't an opportunity, there wasn't a reason for Mr. Shepard to contest building or any other element of this offense.
03-9168 +++$+++ 9820 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, of course, there wasn't. So all he has to do now is say, Judge, in my latest thing, you know, they say 30 Bremer Street. 30 Bremer Street sounds like the address of a building, but by the way, unusually enough, it's the license plate of a car. Now, if in fact that's the case, he can come in and say it. There's no Fifth Amendment problem. We're talking about sentencing and what a prior conviction was. He doesn't even have to say it. You as his lawyer could tell us. Now, you know why I think you don't say it? Because it isn't conceivably right.
03-9168 +++$+++ 9821 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, and it also isn't in fact. And the question here is --
03-9168 +++$+++ 9822 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What do you mean it isn't right in fact? What is it?
03-9168 +++$+++ 9823 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Is it in law --
03-9168 +++$+++ 9824 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
03-9168 +++$+++ 9825 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- or in fact that we are trying to make this determination?
03-9168 +++$+++ 9826 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We look to facts about what the prior convictions were about. That's what Taylor says. That, of course, is a fact, but it's a legal fact, what was this conviction for.
03-9168 +++$+++ 9827 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Taylor said you don't look at facts --
03-9168 +++$+++ 9828 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I understand your reading of it. What I want to know is what's wrong with my reading of it.
03-9168 +++$+++ 9829 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because your reading of it requires a look at the underlying conduct. It actually requires. And the document here that was selected to exhibit the underlying conduct is as far away as you can get from an adjudicatory document.
03-9168 +++$+++ 9830 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. What -- is -- is your argument that we are likely, in effect, to -- to violate some constitutional standard if we do what the Government wants, or is your argument as follows? That Taylor says this is an offense-based not a fact-based determination. Taylor says that's what the statute is getting at. And if you go as far as the Government wants here, you basically will have gone beyond offense-based. You will have gone -- become fact-based and you will be violating the statute. So my question is, is there something constitutionally we have to worry about which is the basis for your argument, or is it a violation of the statute that you think we ought to be worried about?
03-9168 +++$+++ 9831 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this case it's the statute that was violated, but you are correct, Justice Souter --
03-9168 +++$+++ 9832 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I don't have a position. I can't --
03-9168 +++$+++ 9833 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that -- no. You are correct in representing that the Government's approach to this will take what is quintessentially a question of law, that is, a comparison of adjudicated elements of -- adjudicated elements of conviction against -- compared to the elements of generic burglary. That's a question of law. Do they match? Do they not match? It becomes a question of fact then, as the First Circuit put it in Shepard and in the Harris case, to determine what was actually in the mind of the defendant at the time he entered his plea.
03-9168 +++$+++ 9834 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, aren't we asking that question in -- in any case? The question ultimately is, what did he mean when he said I am guilty? If you've got a plea colloquy, as you admitted a moment ago, it's easy to find out what he meant because they would have gone into the factual basis for the plea. If there's a written plea agreement, it's probably going to be easy to find out because, again, there would be a basis for the plea set out. Here, there isn't one of those documents. So you're going one step further, but you're still asking the question what did he mean when he stood in that courtroom and said I am guilty. And yes, in -- in one sense that's fact-based, but all of those questions are fact-based. They're going to the same issue. What did he mean? What was pleading guilty to? Isn't that correct?
03-9168 +++$+++ 9835 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because it's based on an examination of the underlying conduct, which is forbidden by the Taylor decision --
03-9168 +++$+++ 9836 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, maybe, maybe not. That's kind of the question we have, how -- what gloss to put on Taylor.
03-9168 +++$+++ 9837 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose --
03-9168 +++$+++ 9838 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you join the amici in saying Almendarez-Torres has to be overruled?
03-9168 +++$+++ 9839 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I do not.
03-9168 +++$+++ 9840 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No.
03-9168 +++$+++ 9841 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do not join --
03-9168 +++$+++ 9842 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But suppose --
03-9168 +++$+++ 9843 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. So we're looking --
03-9168 +++$+++ 9844 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- Taylor were not on the books. What -- what would be the basis of your argument? You say that it's all right to look at a plea colloquy, but it's not all right to look at an arrest report to which the judge referred. What's the basis for that distinction? What sense does it make?
03-9168 +++$+++ 9845 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The sense it makes it this. What the Armed Career Criminal Act addresses and what this Court discussed in Taylor was the applicable term is conviction, that is, a conviction for a categorical offense. The categorical offense is a crime of violence specifically described as burglary, arson, but there are specifically described crimes. Those are things that you can determine as a matter of law. Do the elements match the -- the generically violent crime, or do they not match the generically violent crime? If they do not match the generically violent crime, you might still be able to figure out, you might be able to surmise what the defendant actually had in his mind, if he had anything in his mind, about this at the time of the guilty plea. Well, one of the unique things about the -- these nongeneric burglary statutes in Massachusetts is that they're really relatively petty offenses.
03-9168 +++$+++ 9846 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- but why can you look at what's in the plea colloquy that's in the record, but you cannot look at a document that the judge referred to, if that document isn't there? What's -- what's the common sense argument that you're making? I -- I don't understand it.
03-9168 +++$+++ 9847 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there is no evidence in this case that the judge referred to a police report.
03-9168 +++$+++ 9848 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. This is my little hypothetical case so that we can test your theory, just to see the reasons that you're advancing for -- for us to rule in your favor. And I -- I don't see any rationale that you've given us.
03-9168 +++$+++ 9849 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If you can look at the colloquy and the judge, without incorporating it, has the defendant explicitly admit the facts that constitute the elements of generic burglary, it is our position that that -- that conviction could be used to enhance. But --
03-9168 +++$+++ 9850 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let me try the same question.
03-9168 +++$+++ 9851 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- but why can't you go one step further and refer to the document that was not in the record but that the judge mentioned in his -- in his findings at the first sentencing? Why? I still haven't had a reason why.
03-9168 +++$+++ 9852 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree that whether or not that document is in the record, if there is an explicit finding or an admission by the court that enters the judgment, that the defendant broke and entered a building, that that conviction should be able to qualify as a predicate under the Armed Career Criminal Act. It is not a requirement that the underlying document be incorporated into the record, only that the admission be made or the facts be found by the fact-finder, whoever is taking the plea.
03-9168 +++$+++ 9853 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask you a question? Assume the case had been tried and you could not tell from either the indictment or the instructions to the jury whether it was a generic burglary or a nongeneric burglary. Would the -- our decision permit us to look at the transcript of the trial to answer that question?
03-9168 +++$+++ 9854 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly not under Taylor. The whole idea of Taylor was partly dictated by the words of the statute.
03-9168 +++$+++ 9855 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So your argument is that this is comparable to using the transcript of the trial.
03-9168 +++$+++ 9856 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This is -- it -- well, I don't think it's comparable because the district court finding was that the documents that the Government relies on were not involved in the adjudication at all. So it --
03-9168 +++$+++ 9857 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So this is even farther removed.
03-9168 +++$+++ 9858 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This is even farther removed than a plea colloquy, farther removed than a trial transcript looking into the evidence --
03-9168 +++$+++ 9859 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that's what I don't understand. We're now talking about that part of Taylor which deals with a narrow statute where our object is not to find out what he's guilty of or anything. We're just trying to find out what was the crime he was charged with. And there are two or three States which lump together in one statute crimes that are violent and nonviolent. Burglary of a structure is violent. Burglary of a car or a ship is not. So all we want to know is what was the charge at issue. Now, do you -- let me break the question into two parts. The key sentence here, I think, is for example, in a State whose burglary statutes include entry of an automobile, as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with burglary of a building, then it's going to be violent. Now, would you -- would you agree with me or not that he could have written -- Justice Blackmun -- that same sentence to say if, for example, the indictment or information and jury instructions show? Would you be willing to add those two words, for example?
03-9168 +++$+++ 9860 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If, for example.
03-9168 +++$+++ 9861 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If, for example. I want to know how -- how absolute you're making this. If, for example. And the next question I'd ask would be if you agree for example, what are the things you can look to and what are the things you can't?
03-9168 +++$+++ 9862 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I -- I do agree that that's one of the questions presented by this case.
03-9168 +++$+++ 9863 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but do you want add the for example or do you want to take it just categorically?
03-9168 +++$+++ 9864 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I do believe that the best reading is the categorical reading.
03-9168 +++$+++ 9865 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
03-9168 +++$+++ 9866 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I'm willing to accept for example --
03-9168 +++$+++ 9867 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay. Then what kinds of things would you --
03-9168 +++$+++ 9868 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- for purposes of argument.
03-9168 +++$+++ 9869 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- let us look to and what kinds of things not? All we're interested in is what was he charged with, which of these three things.
03-9168 +++$+++ 9870 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And all Taylor and the Armed Career Criminal Act are interested in is what was he convicted of.
03-9168 +++$+++ 9871 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, no, no. I will get that later. Let me deal with the charge. If he was charged with breaking into a boat, that's the end of this. Okay?
03-9168 +++$+++ 9872 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ True.
03-9168 +++$+++ 9873 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, fine. So I want to know what he was charged with. Let me do that one. Now, what will you let me look to to see what he was charged with?
03-9168 +++$+++ 9874 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You can look to the charging document and the statute to see what he was charged with.
03-9168 +++$+++ 9875 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. So what happens in the case where -- Justice Blackmun let us go further than that. He says the indictment -- that's the charging document -- or information and jury instruction. He'll let us look to a jury instruction as if there's actually been a trial. So he'll let us go further than you will.
03-9168 +++$+++ 9876 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not to determine what he was charged with. To determine what he was convicted of. Because the jury instructions are not going to be factually oriented. The jury instructions are going to tell you what the element of the crime was, elements that were adjudicated. So that if you have the person charged with a nongeneric document here -- the nongeneric statute, a boat, a house, a whatever, and the jury instructions establish for you that he could not have been convicted by that jury without finding a house because that's the elements laid out in the jury instruction --
03-9168 +++$+++ 9877 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And what's the difference between that and a police report that makes it quite clear that in the circumstances there was no possibility of a boat or a car being involved? What's the difference between that and the police report?
03-9168 +++$+++ 9878 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The police report does not show you what the results of the adjudication was. It does not establish --
03-9168 +++$+++ 9879 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. What shows us that -- what shows us that is --
03-9168 +++$+++ 9880 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The elements.
03-9168 +++$+++ 9881 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- is the check mark. No. The check mark on the form that says, for example, plea, admit sufficient facts. You know, that's a check mark or it's on the form. It says plea, guilty. I mean, you know, you could have different things checked. So that's what established the guilt. And then the police report establishes whether -- what kind of a thing was at issue. And I will agree with you that if it's at all contested, we shouldn't get into it. But if it's not contested, there's no question. There was no boat around there. It's a city street. Or there was no car. It's plain it was a building. Then that's just as good as the jury instruction. Why not? Tell me why not.
03-9168 +++$+++ 9882 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I suggest that it doesn't tell you anything about what's actually been adjudicated. What it tells you, it's what's actually been charged. And here's one of the things that came up in the district court in front of Judge Gertner, and the Government brought up this as well as Judge -- as the district court judge. What if Mr. Shepard went in and said, yes, I broke into the property of another person with intent to commit a crime? That would be a factual basis that would be adequate for the -- for any sentence that could be imposed under that statute. Because the -- because of the fact that the boat, the house, the car, and the vessel are all put on the same level, the operative fact is is it yours, Mr. Shepard. Does that belong to you, Mr. Shepard?
03-9168 +++$+++ 9883 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, but that's always true. You could have a -- you could have a -- a sheet that shows: admitted, assault, you know. And -- and what the sheet says, it says: charge, assault; plea, guilty. It's possible, for all we know, that when the actual colloquy took place, he was talking about some other thing. I don't know what he was talking about, but what you'd go upon is that there was a charge and he pleaded guilty to the charge.
03-9168 +++$+++ 9884 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Which brings me to Henderson against Morgan. One of the issues in Henderson against Morgan is whether or not you can infer guilt of an element that is not specifically charged even from overwhelming evidence, that that could be proved.
03-9168 +++$+++ 9885 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I -- I don't -- good. Are you going to explain this? Because I thought what we were supposed to do is just look to the sheet, charge; the plea, guilty. And that is what we do and it disposes of 98 percent of the cases.
03-9168 +++$+++ 9886 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does.
03-9168 +++$+++ 9887 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. So -- so are you talking about those 98 percent now?
03-9168 +++$+++ 9888 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm talking about the -- the 2 percent that are nongeneric burglary. And in those 2 percent that are nongeneric burglary, the issue that is raised, by the fact that it's nongeneric burglary, is you can't make a determination based on the face of the record of what was actually adjudicated, that this person was actually found guilty of each element of generic burglary. And when you cannot make that determination from record documents and contemporaneous documents with the adjudication, then you cannot make that determination under the Armed Career Criminal Act.
03-9168 +++$+++ 9889 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why can't you make the determination? Isn't the -- the problem that your determination may not be as reliable? And I thought ultimately your argument would boil down to saying this. The reason you will accept the plea colloquy or the plea agreement, if it sets out the facts, is that that is very reliable. It is a reliable indication of what he was pleading guilty to and what the court was finding him guilty of. But once you go beyond that and you start looking into police reports appended to complaints or whatnot, you're getting into an area of less reliability, and when we're dealing with sentence enhancements like this, we better be reliable. That's why the statute based it on -- on offense rather than facts. Don't get into a factual determination that is unreliable. I thought that was your argument ultimately.
03-9168 +++$+++ 9890 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that is part of the argument, and I -- I think that we're just using different terms here. You're using offense, and -- and the Taylor court and the -- and the Armed Career Criminal Act use conviction.
03-9168 +++$+++ 9891 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I'll accept that, yes.
03-9168 +++$+++ 9892 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay. And so when you're talking about a conviction, you're talking about something that has already been established, that you should be able to make a determination by looking at the contemporaneous documents.
03-9168 +++$+++ 9893 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you -- you still haven't given a reason, other than the one Justice Souter accepts. Look it. This is a case where we all know what the truth is, but you want to argue that we shouldn't find that out. And it seems to me you have to give us a rationale for we shouldn't know the truth here. You -- you don't want us to find it, and there must be some reasons for that. And the law does that once in a while. We all know that something happened, but the law is supposed to pretend it didn't. That's why Justice has a blindfold on. I -- I know that. But you haven't given me one reason yet why I should adopt your theory.
03-9168 +++$+++ 9894 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the theory that I'm proposing is -- is I believe the theory that's already been adopted by this Court, which is the -- the one described in Taylor. It's the categorical approach that says you cannot make a determination of what elements were adjudicated by looking at the underlying conduct.
03-9168 +++$+++ 9895 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But why is a categorical determination important? I threw you a -- a bone a second ago, and I said maybe it's because of --
03-9168 +++$+++ 9896 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's --
03-9168 +++$+++ 9897 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- a reliability concern. Is that it? Is that your point?
03-9168 +++$+++ 9898 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is reliable and it's also not fact-based. Once you start to --
03-9168 +++$+++ 9899 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but is -- is your point that once you get beyond the documents that you admit we can look at, there is a higher -- an -- an unacceptably high risk of unreliability? Is that your argument?
03-9168 +++$+++ 9900 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is one of my arguments, Justice Souter, and the -- and there's something that goes hand in glove with that and did in this case. The burden shifts then to the defendant. The burden shifts to the defendant to prove that he was not convicted of generic burglary, and that --
03-9168 +++$+++ 9901 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but that -- that doesn't necessarily follow.
03-9168 +++$+++ 9902 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- assignment --
03-9168 +++$+++ 9903 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that doesn't necessarily follow from -- from looking at a police report. It may well be that we would say the burden never shifts, and he is simply in the position of any other party to a case. If -- if the other side has put in evidence that is -- is against his interest and he does nothing, then he's in trouble. But that isn't the same as shifting the burden.
03-9168 +++$+++ 9904 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it --
03-9168 +++$+++ 9905 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There's no -- I guess all I'm saying is it doesn't follow from the argument that the Government is making that a burden of persuasion shifts. Isn't that correct?
03-9168 +++$+++ 9906 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What shifts is the risk of being wrong. The shifts -- the risk of being wrong right now is on the Government. If the Government cannot establish that the defendant was convicted of generic burglary, it bears that responsibility. If the defendant cannot establish that back when he entered his plea --
03-9168 +++$+++ 9907 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but the Government --
03-9168 +++$+++ 9908 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Thompson, you know your white light is on. So if you want to save time, you should perhaps do so right now.
03-9168 +++$+++ 9909 +++$+++ TRUE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would. Thank you very much.
03-9168 +++$+++ 9910 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Elwood.
03-9168 +++$+++ 9912 +++$+++ FALSE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: When a defendant has been convicted under a State statute that prohibits both burglary of a building and burglary of a car or some other item, the Court can still look to the conviction to determine whether it is an Armed Career Criminal Act predicate when, as here, the police report indicates the defendant was arrested for burglarizing a building rather than a ship or a car and the other documents in the file corroborate that the basis for the plea was the crime outlined in the police report. Because two of the three elements of generic burglary -- that is, breaking and entering and intent to commit a crime --
03-9168 +++$+++ 9913 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask this question? Suppose the police report had been ambiguous and referred to both a boat and a house. What would -- could -- would it be -- what would you do in that case?
03-9168 +++$+++ 9914 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think in a case where the police report was ambiguous about what it is that the person broke into, I think that you could not base the enhancement on that. We are asking only when both the police report is unambiguous and the documents recording the guilty plea suggest --
03-9168 +++$+++ 9915 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But why -- why couldn't you use it in the other case? Couldn't you ask the police officer what he -- who conducted the investigation what the facts really were?
03-9168 +++$+++ 9916 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think you might be able to --
03-9168 +++$+++ 9917 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you'd start out with the premise that 90 percent of these cases are really houses anyway, so there's a strong presumption in favor of the Government?
03-9168 +++$+++ 9918 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think that you could talk about introducing extrinsic evidence of -- of that sort. We're not asking the Court to go that far, and I think in the run-up cases --
03-9168 +++$+++ 9919 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So the -- the question in this case is whether a police report is extrinsic evidence, isn't it?
03-9168 +++$+++ 9920 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so in this case because the police report is in -- in a police file itself.
03-9168 +++$+++ 9921 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, suppose that it was an assault and battery, for example, and you're trying to decide whether it was violent or not, and the police report was somewhat ambiguous. Could you -- you couldn't look at it then.
03-9168 +++$+++ 9922 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, and I don't think you could for an additional reason, which is that I don't think assault and battery is necessarily a -- is a necessary element of the -- of -- of -- I'm sorry.
03-9168 +++$+++ 9923 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There's a distinction between violent assaults and --
03-9168 +++$+++ 9924 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, violent and nonviolent.
03-9168 +++$+++ 9925 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- nonviolent assaults.
03-9168 +++$+++ 9926 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly right.
03-9168 +++$+++ 9927 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you might want to find out which one it was and -- and as here, it seems pretty easy. Everybody knows most burglaries are -- are of houses. But I'm just wondering if we're not trying to find out what the categorical rule is that -- that is at stake here.
03-9168 +++$+++ 9928 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The only rule we are advocating is that when we are talking about a necessary element of the offense that can be satisfied in different ways, that you can look to the police report to indicate which way it was met in this case if the rest of the file, the State court file, indicates that the police report was the -- provided the factual basis or provided the basis for the conviction. And I think if you look at the file in this case, for example, for four of the defendant's --
03-9168 +++$+++ 9929 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you say it provided the basis for the conviction. Was it presented to the court in each of these cases?
03-9168 +++$+++ 9930 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We believe that the record indicates that it was. For four of the defendant's convictions, if you look at the document that records the guilty plea, it -- it says -- in addition to the notation of guilty, and as Justice Breyer averred, a check of admit sufficient facts or that there are sufficient facts present, it lists the same date of the offense, the same street address, the same arresting officer, and the same victim. And it is our submission that that implies certainly very strongly -- it supports a very strong inference -- that the crime of conviction was the very same crime that is described in the police report.
03-9168 +++$+++ 9931 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought Judge Gertner said she didn't know whether anybody had seen this police report. It wasn't attached to the charge. I thought that was her position, that these are untested documents. We don't know one way or another whether the judge that accepted the plea had seen them.
03-9168 +++$+++ 9932 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To begin with, Judge Gertner looked only to -- she didn't draw any inference based on the document recording the guilty plea and what happened. She looked only to the direct evidence of what happened in the colloquy, i.e., the petitioner's affidavit. But even more than that, her only finding was that the police report, as a police report, was not introduced at the plea colloquy. It wasn't marked as an exhibit. It wasn't attached to anything. It wasn't introduced as that. I don't think that's inconsistent with the idea that as is often the case and is probably usually the case, that the police report was synopsized by the prosecutor and -- and read at court, which would explain why the offense of conviction has the same offense date, same street address, same victim, same arresting officer.
03-9168 +++$+++ 9933 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But we don't have any colloquy. We don't know what happened at the -- you're saying it's -- it's altogether likely that that happened, but we don't know.
03-9168 +++$+++ 9934 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But we do know that under Massachusetts State law, that there -- before a court can accept a guilty plea, there has to be a factual basis in the record. There have to be facts in the record to support every element of the offense.
03-9168 +++$+++ 9935 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So if the defendant says, yes, I plead guilty to this crime and the crime is described as ship, vessel, car, building, and that's -- if that's all that happened is the boiler plate charge that just repeats the statute and the defendant says, yes, I did that, but nothing tells us did what, other than violate the statute.
03-9168 +++$+++ 9936 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The requirement -- the factual basis requirement requires a statement of the facts, not a statement of the legal conclusion, and simply reading the charging document as a legal conclusion about what it -- about a boat, building, et cetera was broken into. What it requires is a narrative description of the underlying conduct so that the judge can satisfy him or herself to what the defendant is pleading guilty to is actually a crime. If he just says, I agree with the charging document, if the underlying facts were he broke into a grocery cart or a -- a refrigerator shipping box or something, it might not satisfy the elements of the crime.
03-9168 +++$+++ 9937 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But couldn't the judge in that colloquy have said to him, did you break into a building, a car, or a boat? And he would have said yes, and wouldn't that have satisfied the element of the crime?
03-9168 +++$+++ 9938 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't -- I don't think it would have satisfied the factual basis requirement in that there has to be a narrative description of what the defendant did, like he showed up at that day and he broke into 258 Norwell Street. And I have yet to find a Massachusetts case where a -- a guilty plea was accepted based on basically just a recitation of the charging document --
03-9168 +++$+++ 9939 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now, there's no record here of the colloquy at the plea? Is that it?
03-9168 +++$+++ 9940 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. There's -- there's no facts -- there's no -- as is the case often in guilty pleas, which are not challenged on appeal, no colloquy was ever prepared and apparently the tape recording was destroyed.
03-9168 +++$+++ 9941 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But your test is whether or not there's reliable record evidence? Is that -- that the test?
03-9168 +++$+++ 9942 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, whether there's reliable record evidence that is reliable in describing what the offense was that was the subject of the plea colloquy. And in this case, we believe it is met both because the police report is unambiguous, as several of the members of the Court have averred to, and that the documents recording the guilty plea I think very clearly indicate that the thing that was at issue was the crime described in the police report.
03-9168 +++$+++ 9943 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Does it -- does the plea refer to the police report?
03-9168 +++$+++ 9944 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it does not. It doesn't in so many words refer to the police report, but it refers to -- it -- it, I think, unambiguously describes the crimes described in the police report and that it involves, as I said, the same date, the same street address, the same victim, and the same arresting officer.
03-9168 +++$+++ 9945 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Where do you draw the line? Is there some -- I -- I take it that you say certainly if the plea colloquy or the -- or the judge's guilt determination refers to the police report, then the police report comes in. Suppose there's no reference to the police report.
03-9168 +++$+++ 9946 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that --
03-9168 +++$+++ 9947 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can we still go find the police report and then where do we stop?
03-9168 +++$+++ 9948 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that if there's no reference to the police report and if the police report is not in the State court file, which it was in this case -- the court indicated it was in the State court file -- I -- I think that you would probably have to have a stronger showing in order to say, well, he pleaded guilty to the police report such as a -- a reference to the police report or more of an indication on the guilty plea form, a notation of -- of what was entered or --
03-9168 +++$+++ 9949 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, you mentioned --
03-9168 +++$+++ 9950 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- something that unambiguously indicated the police report provided the factual basis for the plea.
03-9168 +++$+++ 9951 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You -- you mentioned the State file. Is -- is the rule whatever is in the State file, even if there's no reference to it? You had -- you had two variables: one that there was reference to it; and two, that it was in State file. Suppose there's no reference, but it is in the State file. What -- I'm -- I'm not sure what rule you would draw?
03-9168 +++$+++ 9952 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- if -- I -- I think that there has to be both an -- that the police report is unambiguous and that there is reason to believe or that it is more likely than not that the police report provided the factual basis for the plea, and if it's -- if there's no reference to it in so many words, I think the same could be said this -- that the same could be said here in this case. It doesn't say we look to the police report. You just draw that inference from the fact that the crime described looks like the crime described in the police report.
03-9168 +++$+++ 9953 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So what is your -- what rule would you have here? The question is, was he convicted of a crime of violence? 98 percent of the cases, all you have to do is look to the crime charged, burglary, and the fact that he was convicted. He pleaded guilty or didn't. But there are these two -- three States I guess that lump together in one code provision for breaking and entering into a ship or a car or a house. So now we've got to know which of the three it is. If they go to trial, it's easy. Just look to the jury instructions. If they plead guilty, I guess your opponents would say that's the end of it. You can't use it because we don't ever know from the charge itself which of the three it was that was at issue. Was a house at issue? Was a car at issue? Was a boat at issue? Now, you're going to say, but do a little investigating to find out what was at issue. Look at the police report. Is your view look at anything as long as it's uncontested and clear? Their argument is no matter what you look into, once you go beyond that charging document, you're going to find I think Justice Souter's point. It's going to be ambiguous sometimes. You get into facts of things happened years ago. It's just not worth it.
03-9168 +++$+++ 9954 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think our argument -- or the -- the proposition that we are arguing for today is that when the documents and the State court file indicate that the defendant was arrested for only burglary of a building and there's no question that it wasn't a ship or a vehicle, that it will support the ACCA --
03-9168 +++$+++ 9955 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but we're still going to have to write something.
03-9168 +++$+++ 9956 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. When --
03-9168 +++$+++ 9957 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And what I want to know is what's your rule.
03-9168 +++$+++ 9958 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. When the other documents in the file indicate that it is more likely than not that the police report or that that description of events served as the basis for the guilty plea.
03-9168 +++$+++ 9959 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I --
03-9168 +++$+++ 9960 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So -- so we -- are we going to decide -- decide a lot of probate cases about incorporation by reference in wills and stuff?
03-9168 +++$+++ 9961 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think --
03-9168 +++$+++ 9962 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't know what we're supposed to do.
03-9168 +++$+++ 9963 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that in this case it just -- I don't think the Court really has to get to the outer reaches of this because in many of these cases, it's overwhelming --
03-9168 +++$+++ 9964 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if we don't get to the outer reaches, the next case I suppose will involve a -- an application for a search warrant or an arrest warrant which describes facts and pretty well tells you what really happened. Could you rely on that?
03-9168 +++$+++ 9965 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Because the -- the important thing is not just describing what actually happened, but what -- what happened on the day the guilty plea was taken. And that is where the documents that record the plea I think come in to show --
03-9168 +++$+++ 9966 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the police report wasn't made on that date. The police report was prepared earlier, I assume.
03-9168 +++$+++ 9967 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The police report was prepared earlier, but when the crime -- when they wrote down guilty, the offense he was guilty of is breaking into a certain address at a certain day, belonging to a certain victim, and involving the same arresting officer. And we believe that --
03-9168 +++$+++ 9968 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if it's that -- if it's that explicit, I don't think you need the police report.
03-9168 +++$+++ 9969 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, perhaps because you can refer to the police report.
03-9168 +++$+++ 9970 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems to me we're dealing with a case in which the court documents are sufficiently ambiguous that you have to look to something else. Then the question is what other things may you look to, and you say we can look to police reports. I say why not look at warrant applications or maybe the prosecutor's notes, or there could be other equally reliable documents available, it would seem to me, that would -- which establish the facts.
03-9168 +++$+++ 9971 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that you really only have to look at -- the -- the fact that these are present in the court's files and the fact that --
03-9168 +++$+++ 9972 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought the police reports were not present in the court --
03-9168 +++$+++ 9973 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They are present in the court's files. The court said they were present in the court's files. They just said they didn't become part of the plea colloquy because of --
03-9168 +++$+++ 9974 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the -- the warrant affidavit is going to be present in the files. It's -- it's returned. It's -- it's normally filed with -- with the other papers in the case.
03-9168 +++$+++ 9975 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think, though, that there's -- there would be no particular reason to believe that the warrant application had been -- had served as the basis for the guilty plea. I mean, if you had some sort of --
03-9168 +++$+++ 9976 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why -- why not? I -- I mean, are we going to imagine an entirely different case out of the blue from the one that's disclosed in -- in the warrant application? It seems to me that there's a -- a relatively high degree of probability there.
03-9168 +++$+++ 9977 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If -- I -- I think that if the documents recording the guilty plea indicate that the -- that the crime described is the crime described in the warrant application, you probably could look at that if -- to determine if it was a boat or a building or --
03-9168 +++$+++ 9978 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let's say the warrant application says, you know, we're looking for a stolen radio and the charge does indicate that he was -- that -- that the -- that the property taken in the burglary was a -- was -- was a radio. Wouldn't that be a basis for saying, okay, the warrant application probably discloses what was going on here? If -- if the -- if it was a radio on the warrant application, a radio in the burglary charge to which he did plead guilty, probably it's the radio at the address indicated in the warrant application. Isn't that a fair inference?
03-9168 +++$+++ 9979 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Perhaps. The -- the whole thing about the warrant application, though, strikes me as -- as a little bit more attenuated, though, also because it's done in advance of the police arriving on the scene and discovering what's going on whereas the police report --
03-9168 +++$+++ 9980 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it may be done in advance by -- you know, by -- by a couple of hours from the -- the police going in --
03-9168 +++$+++ 9981 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. But still it's -- it's done beforehand as opposed to done after the crime has been investigated.
03-9168 +++$+++ 9982 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what about the -- the police officer -- what -- what if we don't have a document of any sort but the -- the State calls the police officer who, in fact, made the application for the -- the issuance of the complaint and he says, when I appeared to ask for the issuance of the complaint, I testified to, I swore to the following facts? I.e, that it was a house at such and such Shaw Street. That gives you your contemporaneity element. Why not accept that?
03-9168 +++$+++ 9983 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that under a sort of a -- theoretically that's a -- that is a theoretical possibility, Justice Souter. I don't think that would happen a lot in actual practice because the sort of people who are prosecutional witnesses have a sufficient caseload that they're just never going to have in a -- a actual recollection of specific events. And I can represent to the Court that --
03-9168 +++$+++ 9984 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They have notes. But the police all have little notebooks. That's what they use in trial day in and day out. So it seems to me that -- that if -- if contemporaneity is the -- is -- is -- or rough contemporaneity is -- is the criterion, then on your theory we ought to get into testimonial evidence.
03-9168 +++$+++ 9985 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's -- it's both contemporaneity, if I've said that correctly, but I think also a -- a reason to infer that it provided the basis for the plea -- for the plea colloquy, which it is in this case because --
03-9168 +++$+++ 9986 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I guess you would be content with just relying on whatever was disclosed at the plea colloquy in court.
03-9168 +++$+++ 9987 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. And --
03-9168 +++$+++ 9988 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And you would take -- you would make the assumption, apparently, that on that occasion the elements, the factual basis for the plea would have been disclosed. But unfortunately, the record has been destroyed.
03-9168 +++$+++ 9989 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It has been destroyed, but Massachusetts State law requires that there be a factual basis before the court can accept a guilty plea. And I think we can -- under the presumption of regularity that attaches to guilty pleas, you can presume that occurred.
03-9168 +++$+++ 9990 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You can just presume that the proceeding was regular and it was disclosed. Is that right? Is -- under Massachusetts law is there any difference in the penalty at all for burglary of a house versus a motorcycle versus a car versus a vessel?
03-9168 +++$+++ 9991 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, there isn't. They're all punished the same. So it's not as though this was a -- a lesser included or anything like that.
03-9168 +++$+++ 9992 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So you want us to write the opinion that we can presume that what's in the State investigative files and records was likely before the trial court? I -- I'd like to know what --
03-9168 +++$+++ 9993 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think it --
03-9168 +++$+++ 9994 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't know what I'm supposed to write.
03-9168 +++$+++ 9995 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That when the -- basically when the police report is unambiguous and when the documents in the State court file indicate that the basis for the guilty plea was the crime described in the police report, that you can infer that the factual basis for the plea, which is required under Massachusetts law, was in fact the breaking into a building as opposed to a ship or a vehicle and so forth.
03-9168 +++$+++ 9996 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Elwood, can I tell you what's troubling me about that? Maybe the whole categorical approach is unwise. It may have been more strict than it should be. But it -- I'm puzzled by the notion that in a case that's been tried to verdict, you can only look at the indictment and the instructions, as I understand Justice Blackmun's opinion. You could not look at the testimony in the record, even though there are nine witnesses who described what happened. It seems to me that might be much more reliable than a police report. And I'm just wondering am I correct, do you think, on saying you cannot look at the testimony in the tried case? And if so, how do you -- how do you say that police reports are better than sworn witnesses?
03-9168 +++$+++ 9997 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think to me it's not 100 percent clear whether when Taylor referred to the jury instructions and the charging documents, that that was exhaustive of the jury trial conflict.
03-9168 +++$+++ 9998 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's a for example thing.
03-9168 +++$+++ 9999 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. It could be something else. But I think that if you were going -- it's still possible to draw the distinction based on an administrability factor, which is the way many courts have looked at it, which is you don't want to have to have the court look back to transcripts of the whole thing versus -- for the whole trial, whereas if they can look at a discrete body of documents and say yes, this guy pleaded guilty to burglary of a building, that you can reach that conclusion. It's a line of administrability, not a -- a line of testimony with the documents.
03-9168 +++$+++ 10000 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The thing I'm just questioning is whether this rule that you -- you're advocating is really more administrable than one that just says it seems crazy in this particular case. But -- but in the interest of having a categorical administrative rule, we'll simply say whatever the public record shows and the proceedings themselves.
03-9168 +++$+++ 10001 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that it has proven administrable. And it -- it -- I think that the majority of courts allow you to look at court documents in order to determine what was -- what sort of offense was at issue and -- and that --
03-9168 +++$+++ 10002 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How should we interpret Taylor? Do you -- do you agree with the interpretation suggested this morning by Justice Breyer, for example?
03-9168 +++$+++ 10003 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it's definitely should be interpreted to include guilty pleas because taking Taylor literally, I mean, they only discussed jury trials. But every court with criminal jurisdiction, every court of appeals with criminal jurisdiction, has concluded that it includes guilty pleas. And so I think it -- it does make sense. I don't think that the Court would have in such a short section of the opinion have exhaustively addressed the entire scope of factual situations, and I don't think it would have addressed the circumstance under which most guilty pleas -- or rather, under which most convictions are obtained --
03-9168 +++$+++ 10004 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, then -- but reading it that way, which is arguable, this case, but reading it that way, you'd say you can look -- what we're interested in is not what happened. We are interested in what kind of a crime was at issue. And where it's difficult to decide what crime is at issue, you can look to whatever official documents are there at the time, any court records, to make that determination, but there -- if there is any indication that they're -- they're contested, if there's any dispute as to what was at issue, then you can't count it. Then it doesn't count. What about that as a rule?
03-9168 +++$+++ 10005 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think that is a sensible rule. I mean, basically our rule --
03-9168 +++$+++ 10006 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So you'd say there's -- you can look to what Justice Stevens says. You can look to what is official in that record that seems to have indication of reliability, and if there is any indication at all that this was a matter in dispute, you can't count the conviction. That would be the rule.
03-9168 +++$+++ 10007 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think that would be a sensible rule. And in this case, as -- as we indicated, not only are the police reports unambiguous, but there's a very strong reason to believe that they were the basis for the guilty plea as it was obtained on that day.
03-9168 +++$+++ 10008 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Elwood, we had a case last term involving a search warrant, Groh against Ramirez, and it -- it was very clear that the application for the warrant identified specifically what the police were to search for, but the warrant itself didn't. And this Court held you couldn't look behind that blank warrant for the particulars that were revealed in the warrant application. And I suppose this is similar in the sense that we have the conviction and you're saying, but you can look behind that conviction to something that, we don't know, may or may not have been before the court.
03-9168 +++$+++ 10009 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As I recall Groh, that case specifically turned on the fact that the face of the Fourth Amendment requires that the warrant describe, not that the supporting documents describe, the place to be searched and the items to be seized. And I think in this case we already know it's okay to look behind convictions because Taylor itself says so. The only question is what items are acceptable, and --
03-9168 +++$+++ 10010 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, Taylor -- Taylor doesn't quite have this full for example because there's another paragraph following the for example paragraph which says we hold an offense constitutes burglary for purposes of 924(e) if either the statutory definition corresponds to generic burglary, which it doesn't here, or the charging paper, which it doesn't here, and jury instructions, which the judge tells the jury you must find this in order to convict. Those are not for examples. That paragraph says you've got three things you can look to. You can look to the statutory definition. You can look to the charging paper, and you can look to the jury instruction. And that's it.
03-9168 +++$+++ 10011 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think, though, that in the context that -- that is, if you're going to include guilty pleas at all for these sort of straddle offenses that -- that some of the conduct is generic burglary and some isn't, that if Taylor is accepted on face value, where it isn't an example, then it -- it basically would mean that, sub silentio, the -- the Court had held that guilty pleas could not be used at all for this sort of inquiry under the Armed Career Criminal Act, which I think would be extraordinarily or -- or it would definitely limit at least the utility of the ACCA as an act punishing recidivism because the vast majority of convictions are obtained through criminal --
03-9168 +++$+++ 10012 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but aren't the vast majority of guilty pleas unambiguous? This is a rather rare case.
03-9168 +++$+++ 10013 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But if the -- I don't think -- I think that whenever there is a straddle crime and that the charging document is --
03-9168 +++$+++ 10014 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, whenever straddle crimes, but -- but they're the exception rather than the rule.
03-9168 +++$+++ 10015 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is probably the case. I know that there are something like 28 States that have them.
03-9168 +++$+++ 10016 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But even burglary I think in most States would be clear.
03-9168 +++$+++ 10017 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There -- there are many States that -- that have offenses that include both generic and nongeneric burglary, although I think that it's probably true that most -- most burglary statutes are either generic or nongeneric, not sort of straddled like that. But in any event, I think it would significantly limit the utility of the ACCA. And in addition, every court of appeals with criminal jurisdiction has held that that's not what it means, that it does mean, as Justice Breyer indicated, that that was one example that the Court meant. It is, after all, a fairly abbreviated discussion that wasn't briefed by the parties in the case, and I don't think that the Court should read it so expansively based on relatively ambiguous language. If there are no further questions from the Court, we'll rely on our submission.
03-9168 +++$+++ 10018 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Elwood. Ms. Thompson, you have a little over 3 minutes.
03-9168 +++$+++ 10020 +++$+++ FALSE +++$+++ MS. THOMPSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens. First, I would like to point out that the Armed Career Criminal Act does not punish all recidivism. It is designed to punish the people who have prior convictions for those offenses falling -- falling within the categories. So it's not designed to punish all recidivism. Massachusetts does have generic burglary statutes. These statutes that are at issue here are not among them. But for the serious forms of burglary, such as home invasion, Massachusetts punishes those under generic burglary statutes. So those do exist. With regard to the record that the Court can look at in making this determination, it was significant in the district court that Judge Gertner was not pointed to the face of the complaint. And as you look at the complaints that are shown in the third appendix in this case, there is -- there are dates listed at the bottom. The entries in those docket sheets were made at different times, not all made at the time of a guilty plea. The Government did not present any evidence to help the court understand anything about the way the dockets were made and the entries were made when a guilty plea was taken in the district court. The third thing of interest is, as Judge Gertner found, there was no reason for a contemporaneous contest of the evidence -- of the material in the police report because the police report was not part of the plea proceeding. So what happens is the district court that's faced with the sentencing issue now has to make the determination, can I now look and see whether there was some contest years ago when the guilty plea was entered without the aid of a contemporaneous record of adjudication. And what Mr. Shepard's position is, as to what the -- the rule should be, is that where -- and we don't contest even remotely that guilty pleas don't fall under the ambit of the Armed Career Criminal Act. Taylor was a guilty plea itself. That case was a guilty plea -- is that where you have a nongeneric statute and you have a conviction by a guilty plea, that the court can look at a charging document and a contemporaneous formal record of adjudication, not simply anything that's found in the court file, and that must establish, based on that examination, that the defendant was necessarily found guilty of all the elements of generic burglary either by his own admission or by a finding by the judge. Thank you.
03-9168 +++$+++ 10021 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Ms. Thompson. The case is submitted.
03-923 +++$+++ 10025 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We will now hear argument in Illinois against Caballes. General Madigan.
03-923 +++$+++ 10027 +++$+++ FALSE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens, and may it please the Court: This Court has made clear on several occasions, including 21 years ago in Place and 4 years ago in Edmond, that a sniff by a drug-detection dog is not a Fourth Amendment search, and if something is neither a search nor a seizure, then it requires no Fourth Amendment justification.
03-923 +++$+++ 10028 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, we've held that it's certainly not a -- a full-blown search. It's not a search in the classic sense, but a Terry stop isn't an arrest in -- in the classic sense either. We -- we have said that that is a kind of seizure. Why do -- I think your -- your argument assumes that this for -- for purposes of search analogies that something is either a -- a full-dress search or it's not a search at all. Why isn't there a -- a possibility of -- of a kind of middle ground on searches just as there is on seizures?
03-923 +++$+++ 10029 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this Court made clear in Arizona v. Hicks that it did not want to go down the road of creating something known as a quasi-search so that courts and police officers would be in the position of trying to determine whether or not something was a search or not.
03-923 +++$+++ 10030 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, I -- I can -- I can just imagine the problems, but I mean, what -- I think what's -- what the -- what's bothering me about the case is that if we persist in -- in saying that -- that it's -- that it's an either and or question with no question with no possible gradation, then I assume nothing prevents the police from taking the dogs through every municipal garage in the United States and I suppose there's nothing that prevents the police from taking the dogs up to any homeowner's door, ringing the bell, and seeing if the dog gets a sniff of something when the door is opened. We're -- we're opening rather a -- a large vista for -- for dog intrusions, and -- and that's what's -- that's what's bothering me. Why -- why should we -- why should we open that vista if there is a possibility of a -- of a middle ground that would prevent it?
03-923 +++$+++ 10031 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would start with the reality that dog sniffs by their very nature, as this Court recognized in both Place and Edmond, are very unique both in terms of the manner in which the sniff is conducted, as well as the content of -- of the information that the sniff reveals, so that a dog sniff is only going to be able to reveal the presence or absence of contraband. And this Court has recognized that individuals have no privacy interest in the possession of contraband.
03-923 +++$+++ 10032 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does that imply that your answer is yes to the question? If we say, as you urge, a dog sniff is not a search, then the police are free to parade up and down every street in the country with dogs sniffing car trunks.
03-923 +++$+++ 10033 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Because a sniff is not a search, a police officer would be able to take a narcotics-detection dog down the street with him or her. I can tell you that because of the limited resources -- and this is a point brought up in the Illinois Association of Chiefs of Police amicus brief -- that that is not likely to occur. In addition, I can also tell you that in the State of Illinois, the Illinois State police do not train their dogs nor do they use their dogs on people. They only use them on objects. But yes, in answer to both of your questions, because a dog sniff does not constitute a search, dogs could be used to walk down streets. They could, hypothetically, be used in parking lots, and at times they are used in parking lots.
03-923 +++$+++ 10034 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But they are used. I mean, we don't have to make it up. From cases we've had here, we know that they're used in places like bus depots to -- to sniff luggage that -- that passengers have carried through on -- on buses.
03-923 +++$+++ 10035 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, they are.
03-923 +++$+++ 10036 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the republic seems to have survived.
03-923 +++$+++ 10037 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree.
03-923 +++$+++ 10038 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ One could characterize those episodes under the, quote, special needs doctrine. I mean, we are exposed to searches at airports that we would not put up with walking up and down an ordinary street. So the dogs at the terminals one expects nowadays.
03-923 +++$+++ 10039 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. These aren't sniffs for -- for explosives. These are sniffs for drugs and -- and these -- these are not buses that are coming in from France. They're coming in from one American city to another. And -- and there's no more need in -- in that case than there was in this case. It was just a good -- a good place to find criminals who were carrying unlawful drugs.
03-923 +++$+++ 10040 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the present case, Mr. Caballes was traveling from Las Vegas, Nevada apparently on his way to Chicago, Illinois. He was pulled over for speeding. Another officer overheard when Master Sergeant Gillette called in to dispatch that he effected --
03-923 +++$+++ 10041 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I interrupt, General Madigan?
03-923 +++$+++ 10042 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You may.
03-923 +++$+++ 10043 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He was pulled over for speeding at 71 miles an hour in a 65 miles an hour zone on I-80. Right?
03-923 +++$+++ 10044 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that is correct, Justice Stevens.
03-923 +++$+++ 10045 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did they know in advance that he was someone to look for? Because I don't imagine you arrest everybody on I-80 that goes 70 miles an hour. I've done it many times myself is why -- (Laughter.)
03-923 +++$+++ 10046 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Inadvertently.
03-923 +++$+++ 10047 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Inadvertently. (Laughter.)
03-923 +++$+++ 10048 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We always like to have you in Illinois. Obviously, the Illinois State Police have the ability to pull somebody over whether they're going 1 mile over the speed limit or 26 miles over the speed limit, but there is nothing in the record to indicate that they were looking for Mr. Caballes as he was traveling eastbound on I-80 towards Chicago.
03-923 +++$+++ 10049 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does the record tell us what time of day it was?
03-923 +++$+++ 10050 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. It was approximately 5:10 p.m.
03-923 +++$+++ 10051 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you.
03-923 +++$+++ 10052 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You -- you answered one of the earlier questions about the possible intrusiveness of dogs everywhere by saying, well, you don't have a privacy interest in contraband, but that's never true. You don't have a privacy interest in the murder victim's body, but you still have to have a warrant to go in and get it. So that -- that just doesn't work unless I missed something.
03-923 +++$+++ 10053 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You do not have a privacy interest in contraband, as this Court has recognized in the Jacobsen case.
03-923 +++$+++ 10054 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but you have a privacy interest in your person and in your place, and that's what we're talking about. So that seems to me that that just doesn't help us.
03-923 +++$+++ 10055 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there is a distinction that's made in terms of Fourth Amendment protections that are given to homes and people versus cars. Ever since the Carroll case, it has been recognized that a warrantless search of a car can be done if they found probable cause.
03-923 +++$+++ 10056 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that's because of the nature of the place being searched not because of the nature of what you're searching for.
03-923 +++$+++ 10057 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
03-923 +++$+++ 10058 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Not necessarily.
03-923 +++$+++ 10059 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it just can't be that -- so the fact that you don't have a privacy interest in contraband, it doesn't seem to me -- I -- I don't think you need that argument.
03-923 +++$+++ 10060 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think you should use it. (Laughter.)
03-923 +++$+++ 10061 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I plan on continuing to use it.
03-923 +++$+++ 10062 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why -- why do you -- are you sure that Kyllo, you know, the -- the imaging case, would have come out the same way if the only thing -- the only thing -- that the imaging could pick out is not any of the other private activities in the home, but the only thing it could possibly discern is a dead body with a knife through the heart? Are you sure the case would have come out the same way? I'm not at all sure.
03-923 +++$+++ 10063 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would hope the case would come out differently than --
03-923 +++$+++ 10064 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what --
03-923 +++$+++ 10065 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you have any authority for that other than Justice Scalia's speculation about how this -- (Laughter.)
03-923 +++$+++ 10066 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- how his Kyllo case might have been written?
03-923 +++$+++ 10067 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about a house and -- and the use of a dog to sniff around a door access or a house just because the police think, you know, it's possible this is somebody growing marijuana in the basement or something? Is that all right?
03-923 +++$+++ 10068 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would argue that, yes, it is all right to walk a dog around a house, but then as Justice --
03-923 +++$+++ 10069 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How do you -- how do you reconcile that with the heat sensor case then?
03-923 +++$+++ 10070 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The thermal imager that was used in the Kyllo case was able to reveal intimate details of the house. A dog sniff is only going to reveal the presence or absence of contraband, and because of that, that's where we suddenly get into the tension between Kyllo and Place and --
03-923 +++$+++ 10071 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What if the dogs get a little more sophisticated in the future and can also smell a certain kind of perfume, something like that? Would then the whole analysis change?
03-923 +++$+++ 10072 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, then you would end up in a situation as to whether or not an officer had probable cause when a dog, in fact, alerted. If he was alerting to the presence of perfume as opposed to narcotics, there would be --
03-923 +++$+++ 10073 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How would you know whether the -- the dog -- I don't think the dog alerts, as I'm alerting, for one reason or another. He just alerts.
03-923 +++$+++ 10074 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they're very well trained dogs. In fact, in the State of Illinois, the dogs and their handlers go through 320 hours of training, and they're specifically trained to only alert to narcotics.
03-923 +++$+++ 10075 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I just learned this morning that some very well trained dogs that are trained to alert for explosives will also alert for certain kinds of rubber in a tire. They didn't realize that. And I think it's entirely possible that dogs would -- there will be false alerts by -- by dogs because it's triggered by something that -- that is not really anticipated.
03-923 +++$+++ 10076 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ One of the things that does take place during the training of these narcotics-detection dogs is to make sure that they are not alerting to things that are not narcotics or -- I don't know exactly how the explosive training is conducted because we don't train our dogs in Illinois for explosives, but they purposely train them on narcotics not to alert to plastic wrap that is frequently the container used for narcotics, not --
03-923 +++$+++ 10077 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you would agree the analysis would be different if there could be an innocent cause of the alert as well as the contraband being the cause of the alert.
03-923 +++$+++ 10078 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It depends. The analysis would be different if the dog was known to or had been trained to actually alert to the non-contraband.
03-923 +++$+++ 10079 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or if that happened a large percentage of the time. I mean, surely you'd concede that the search is unreasonable if, for every -- every one time, you -- you make somebody open his bag because the dog actually smells narcotics, 99 times you make somebody open his bag because he has apples in it. I mean, wouldn't that go to the reasonableness of --
03-923 +++$+++ 10080 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it would actually go to whether or not that dog provided -- that dog's alert provided probable cause to conduct a search.
03-923 +++$+++ 10081 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, do we -- we don't have the probable cause question before us, do we?
03-923 +++$+++ 10082 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You do not have the probable cause question before you. This dog was determined to be reliable by the trial court and the Illinois Appellate Court, and it was not part of the Illinois Supreme Court's decision.
03-923 +++$+++ 10083 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So what again in your view is the best distinction from Kyllo?
03-923 +++$+++ 10084 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Two things. One, the thermal imager used in Kyllo was able to reveal intimate details that individuals --
03-923 +++$+++ 10085 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Like what? I thought it was just heat?
03-923 +++$+++ 10086 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
03-923 +++$+++ 10087 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There was some disagreement on the Court about exactly what it revealed, but in terms of intimate details, it then allowed somebody --
03-923 +++$+++ 10088 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Excuse me. What details? It is a device that measures heat.
03-923 +++$+++ 10089 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because it could measure heat, it could also potentially determine when somebody was taking a bath, taking a sauna, and doing other intimate things in the house.
03-923 +++$+++ 10090 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I think there was a reference to my lady's bath in the opinion.
03-923 +++$+++ 10091 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ A nice turn of phrase, as I recall. (Laughter.)
03-923 +++$+++ 10092 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What was -- and what was the second?
03-923 +++$+++ 10093 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The second one would be the distinction between houses and cars and the protections that houses are given under the Fourth Amendment, which are far greater than the protections that people have in their cars.
03-923 +++$+++ 10094 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, so you think if this were a house, that the Kyllo case would apply?
03-923 +++$+++ 10095 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If this were a house in the situation, it would certainly bring out the tension between Kyllo and Place --
03-923 +++$+++ 10096 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wasn't there -- didn't Kyllo -- wasn't what -- what the Court was worried about in Kyllo not just the relatively crude heat imaging that existed in the case before it, but the prospect of more and more sophisticated heat imaging which -- which we had evidence was already in development that would enable you to see people moving around a room? I thought the case referred to that. Now, are we going to have more and more -- what's going to happen with dogs? I -- I can't imagine that -- that this thing is going anywhere other than smelling narcotics and smelling bombs.
03-923 +++$+++ 10097 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but you would argue that the same rationale should apply if, instead of using dogs, you had some sophisticated device that would buzz or ring a bell or something whenever the odor of -- of narcotics was present, wouldn't you?
03-923 +++$+++ 10098 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would argue that. So if there was an ability to create a -- a mechanical dog, for instance, we would again say that the use of a mechanical dog sniff would not be a search and therefore would not --
03-923 +++$+++ 10099 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There's nothing magical about the fact that it's an animal rather than a sophisticated device. It has better detection capacity than a human being does. That's the only difference.
03-923 +++$+++ 10100 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You are correct.
03-923 +++$+++ 10101 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In -- in discussing the -- the answer to the -- the Kyllo issue, you've -- you place an emphasis on the protection given to a house. Would you go back to Justice O'Connor's question and my earlier example? Is it still your answer that the police can walk dogs around the foundation of the house or take a dog to the front door and ring the bell and see what it -- what it sniffs when the door is opened --
03-923 +++$+++ 10102 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would --
03-923 +++$+++ 10103 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- without there being a search and hence no Fourth Amendment concern?
03-923 +++$+++ 10104 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Souter, I would say that that is possible because the sniff itself is not a search and it only reveals the presence or absence of contraband, which is something that the individual does not have privacy expectations --
03-923 +++$+++ 10105 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay. But then -- then the -- then there is no significance in the house.
03-923 +++$+++ 10106 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is potentially significance in the house because the --
03-923 +++$+++ 10107 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, when does -- when does it occur? I mean, if -- if -- first you say the -- the house is -- is a matter of significance for Kyllo analysis. We're trying to draw a distinction, if there is one, between Kyllo and this, and you say they can go to the house. They can sniff the foundations. They can go to the front door, et cetera. I don't see that the house, in fact, is functioning as a distinction at all.
03-923 +++$+++ 10108 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court's precedents have shown us that in fact Fourth Amendment protections are higher in the home than they are in the car.
03-923 +++$+++ 10109 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, I realize that, but it seems to me your basic argument, if I understand it, is there is simply no search here, and because there is no search here, it doesn't matter whether you're dealing with a house or a parking lot or a car on the road. No search is no search. So for purposes of -- if I -- I want to understand your case, and as I understand it, for purposes of your case, there is no significance in the house because there doesn't have to be. The question doesn't arise because there's no search. Is that --
03-923 +++$+++ 10110 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, that is absolutely correct. A search, as far as we are concerned -- and I believe it's based on the precedents of this Court -- is a sniff is not a search, and therefore it requires no Fourth Amendment justification.
03-923 +++$+++ 10111 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You said there's no disturbance of one's privacy and so that distinguishes the dog sniff from some other governmental intrusions. But dogs can be frightening, humiliating. It seems to me that there is some association with the idea that I have a right to be let alone by my government and having a large dog circle my car.
03-923 +++$+++ 10112 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are in this country millions of dogs, many of the types of dogs that are used by narcotics detection teams, such as Labrador retrievers and shepherds, are identical to the pets that people own. We encounter them in the parks, on the streets, and I would contend that an officer cannot be in the position of making a determination as to whether or not the individual that he encounters is going to be frightened by the dog. Mr. Justice Stevens, if I may, I'd like to reserve the remainder of my time.
03-923 +++$+++ 10113 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, you may save your time.
03-923 +++$+++ 10114 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
03-923 +++$+++ 10115 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Wray.
03-923 +++$+++ 10117 +++$+++ FALSE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: There's no dispute that respondent here was lawfully stopped based on probable cause. There's also no dispute that the entire stop took less than 9 minutes. The question is whether a second officer's use of a drug dog to sniff outside of that car during those 9 minutes required some separate Fourth Amendment justification.
03-923 +++$+++ 10118 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you agree with -- with General Madigan that it doesn't make any difference whether the -- the dog is a -- is a mechanical instrument or not? Do you agree it makes no difference? I thought that one of the -- one of the points in -- in the imaging case was that this was a new technology which didn't exist and that although the ordinary rules in 1791 was that there was no search unless -- you know, unless you enter the house or unless you -- you physically intrude upon the person's -- at least the person's clothes, we made an exception to that rule because of this new technology that enabled you to find out things without having to intrude into the home or into the person. Now, but -- but this is not a new technology. This is a dog and -- and they had that ability in 1791 just as they had it today. And the rule that when there's no intrusion, there's no search -- there's no reason to depart from that rule with respect to a dog although there would be with respect to some sophisticated new technology that would enable you to find out all sorts of things.
03-923 +++$+++ 10119 +++$+++ TRUE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
03-923 +++$+++ 10120 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It seems to me you shouldn't -- you shouldn't assume that -- that the fact that this is a canine makes no difference.
03-923 +++$+++ 10121 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you going to rely on the fact that dogs were trained to do this sort of thing back in the 18th century?
03-923 +++$+++ 10122 +++$+++ TRUE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm going to rely on -- on three distinctions between this case and Kyllo, Justice Stevens. The first is that the three points that the Court looked at in Kyllo were: one, as has already been referenced, the fact that it's a home, the most sacred place under the Fourth Amendment; second, that it revealed certain intimate details; and third, that that was a technology --
03-923 +++$+++ 10123 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It was potentially revealed. It did not actually reveal any details.
03-923 +++$+++ 10124 +++$+++ TRUE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As -- as General Madigan referenced, there is obviously some disagreement within the Court on that issue, but the -- the fact was that the technology in Kyllo revealed information about heat in the house which could be thought to reveal intimate details about the house. The third point in Kyllo, which I think Justice Scalia is referring to, is that that was technology that was not in general public use. Dogs have been used by law enforcement across the country since Place and before to sniff everything from --
03-923 +++$+++ 10125 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But not in 1790.
03-923 +++$+++ 10126 +++$+++ TRUE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not --
03-923 +++$+++ 10127 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did you come here --
03-923 +++$+++ 10128 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You don't know that, do you?
03-923 +++$+++ 10129 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did you come here having researched all about dogs in 1790? (Laughter.)
03-923 +++$+++ 10130 +++$+++ TRUE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, I cannot, I regret to say, tell you what dogs were doing in 1790. I can tell you -- and this is maybe a factual thing that might be of interest to the Court -- that the dogs who train -- who are trained to alert to detect things -- it's not that they are sniffing things that all dogs can't already smell. It's rather that they are trained to let the handler know that they've smelt whatever it is they've been trained to smell. So the smells that are coming out of Respondent Caballes' car are exposed to every dog.
03-923 +++$+++ 10131 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you really think this would be a different case if the officer had a device that did exactly what the dog -- dog did?
03-923 +++$+++ 10132 +++$+++ TRUE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We -- our position would still be, Justice Stevens, that as long as the device only revealed, as this does --
03-923 +++$+++ 10133 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I would think you'd take --
03-923 +++$+++ 10134 +++$+++ TRUE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the absence or presence of contraband, it would still be constitutional.
03-923 +++$+++ 10135 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why do you rely on the -- in -- in distinguishing Kyllo, why do you rely on the house if there's no search? Why do you have to rely on the fact that there was a house involved there? You -- you listed that as one of your three distinctions.
03-923 +++$+++ 10136 +++$+++ TRUE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't believe we have to rely on it, Justice Souter. We do believe that there were three things that were important in Kyllo. The fact that it was a home was one of those things. Again, the -- the fact of a home, the fact that it was technology not in general public use, and --
03-923 +++$+++ 10137 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that didn't go to whether it was a search or seizure. I think it goes to whether it was an unreasonable search or seizure. Don't you think so? That what -- what might be unreasonable with respect to a home would not be unreasonable with respect to a suitcase?
03-923 +++$+++ 10138 +++$+++ TRUE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Scalia, that's correct.
03-923 +++$+++ 10139 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- but your -- is -- is it -- I understand it to be your position that there simply is no search here. Period.
03-923 +++$+++ 10140 +++$+++ TRUE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Justice Souter.
03-923 +++$+++ 10141 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's because it's a dog sniff.
03-923 +++$+++ 10142 +++$+++ TRUE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would -- we would submit this is not a search because, as this Court recognized in both Place and Edmond -- and the Jacobsen case is also significant because the Court said that the reason this is not a search, there using the dog sniff by analogy, is because it compromises no legitimate privacy interest. The language of the Court in Place is significant because it says that we are aware of no other investigative procedure that is so limited in both the manner in which the information is obtained and in the content of the information revealed. That language goes not only to why it's not a Fourth Amendment search but why the use of the dog sniff during a probable cause traffic stop here, where it doesn't prolong the duration, does not transform an otherwise lawful seizure into an unlawful one.
03-923 +++$+++ 10143 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. Do you -- do you think it's -- it's reasonable to say that if the police take dogs simply onto private property to sniff the foundations of houses, if they take dogs to the front door and ring the bell so that they hope the door will open, that there is -- there is no compromise of a privacy interest?
03-923 +++$+++ 10144 +++$+++ TRUE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there would be a question as to whether the officer, the human officer, that is, could be on private property -- I take it from your hypothetical, Justice Souter -- in the first place. But --
03-923 +++$+++ 10145 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I mean, the Fourth Amendment analysis after Katz doesn't -- doesn't depend on trespass, and -- and you have said up to this point that there is no search. And then you have quite rightly said that we have had as a consideration in our minds analytically whether it's fair to say that what the police were doing involved any compromise of a privacy interest. So I'm assuming -- I'm assuming that the police can at least get to the foundation with a dog and they can certainly walk up to the front door and ring the bell. And if they do that with a dog, for the purpose of letting the dog sniff and alert, if there's anything to alert to, is it fair to say that there is no compromise of the privacy interests of the people who own the house?
03-923 +++$+++ 10146 +++$+++ TRUE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our position would be -- the answer to that question is yes. The Court does not have to resolve that issue to decide this case.
03-923 +++$+++ 10147 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course, we could separate the home from the -- from what happened here and still validate the search here if we held that it was a search, but was a reasonable one since all you find is that the person was carrying contraband. It's the only thing that's disclosed. Whereas, if you -- if you did the same thing with -- with regard to a house, which is a more sacrosanct part of one's privacy, it might be an unreasonable search. We -- we could reach that result if we wanted to, couldn't we?
03-923 +++$+++ 10148 +++$+++ TRUE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think you could, Justice Scalia. It's important to distinguish --
03-923 +++$+++ 10149 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ On the other hand, if it were a drug-selling neighborhood or around a park where drugs are frequently sold, would it be legitimate in your view for the police to take drug-sniffing dogs and walk around the public street where cars are parked around that known drug-selling area and see if they could sniff out some contraband in the cars? Is that okay?
03-923 +++$+++ 10150 +++$+++ TRUE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We believe it would be okay, Justice O'Connor. It would be important not to use the dogs in a way to constitute a new seizure because in that case, you're not talking --
03-923 +++$+++ 10151 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm -- I'm assuming parked cars. You haven't interrupted anybody. Nobody is in the car, parked on a public street.
03-923 +++$+++ 10152 +++$+++ TRUE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In that instance, we believe that would be acceptable under the Fourth Amendment.
03-923 +++$+++ 10153 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you -- you give no significance to the fact that this dog sniff was in the course of a lawful stop where the citizen's rights had already been curtailed to a significant extent?
03-923 +++$+++ 10154 +++$+++ TRUE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We believe, Justice Kennedy, that the -- that that context here makes this an even easier case under the Fourth Amendment, that is, the dog sniff not being a search compromising no legitimate privacy interests during the course of a lawful probable cause stop, which we know from Atwater -- the officer could have simply placed the woman under full custodial arrest and taken her down to jail -- was not an activity that transformed the seizure into an unlawful one. The Illinois Supreme Court's concern and where we think they got off track was that they were concerned that the use of the dog sniff during this 9-minute traffic stop was that it transformed it -- it used the language that it transformed the sniff into a drug investigation. We would submit that the Fourth Amendment is about the reasonableness of searches and seizures and not about what the scope of the government's investigation is. And in that sense, the court got off track. These -- this is a -- this is a means that law enforcement has been using properly in reliance on this Court's decision in Place, reinforced just 4 years ago in Edmond, for more than 21 years to detect everything from drugs to bombs to smuggled -- we have beagles in the airports that smuggle produce that's being smuggled in. Dogs are used all over the country with great effectiveness in law enforcement, and the -- we -- that is a -- a technique that we want to encourage law enforcement to pursue.
03-923 +++$+++ 10155 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are there -- are there any manuals for law enforcement officers with respect to the time and place of using dogs, or it's just open season?
03-923 +++$+++ 10156 +++$+++ TRUE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, there is extensive training of law enforcement to use dogs. It's a multi-week program that requires --
03-923 +++$+++ 10157 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't mean the training to make the dog alert properly. How the police will use them, when, under what circumstances.
03-923 +++$+++ 10158 +++$+++ TRUE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, each agency has different policies about when they use dogs and what purpose they're trained for. In this case, as you heard, they're being used in the context of highway interdiction, and so they're trained to sniff around vehicles specifically.
03-923 +++$+++ 10159 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Wray.
03-923 +++$+++ 10160 +++$+++ TRUE +++$+++ MR. WRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
03-923 +++$+++ 10161 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Meczyk.
03-923 +++$+++ 10163 +++$+++ FALSE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: The State does not offer any Fourth Amendment justification whatsoever in regards to -- in this case. It argues instead that there -- there was no need for any justification, and that is incorrect for two reasons. The dog sniff in this case invaded a Fourth Amendment interest of Mr. Caballes in the context of a routine traffic search. The sniff in this case was, in fact, a search. Albeit it was a limited intrusion, it was still a search nonetheless.
03-923 +++$+++ 10164 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why -- why do you say that? I mean, is -- is anything that I observe a search? I mean, suppose I -- I'm a policeman and -- and I'm looking out for, I don't know, people with a nervous tic because I think that that might be somebody who's about to commit a crime or has committed a crime. Have I searched that person because I -- I observe something external?
03-923 +++$+++ 10165 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Any observation I think --
03-923 +++$+++ 10166 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there no difference between an investigation and a search?
03-923 +++$+++ 10167 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is in this case -- see if I understand you correctly.
03-923 +++$+++ 10168 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. It seems to me your brief and -- and your statement here both seem to assume that there's a search whenever the police investigate.
03-923 +++$+++ 10169 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-923 +++$+++ 10170 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's not so. They -- one can investigate without searching.
03-923 +++$+++ 10171 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, to -- see if I understand your question correctly. If you're looking with someone with that nervous tic, that would be something in open view or plain view. That's not the type of investigation I'm talking about. There is in fact, most respectfully, an investigation technique here. There's an investigation measure.
03-923 +++$+++ 10172 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but that isn't the --
03-923 +++$+++ 10173 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about a policeman who smells marijuana coming out of a car or a residence. He's walking down the street, public street, and he smells marijuana.
03-923 +++$+++ 10174 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The only way I can analogize that, Justice Kennedy, is that it -- that is akin to a plain smell or plain view.
03-923 +++$+++ 10175 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. So once you say that, you realize that there are billions and billions of searches that go on every day that the police don't have to justify at all. They just look around.
03-923 +++$+++ 10176 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't --
03-923 +++$+++ 10177 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay? There are billions of them. So the real question is do they have to give a justification for this. And the argument that they don't is simply that it's not in the person's house. When you go out in a public place, even in your car, you might run into people or animals with sharp noses. And a lot of them can detect marijuana. And you know, maybe it's a Limburger cheese. I don't know. (Laughter.)
03-923 +++$+++ 10178 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But people are sniffing things that they don't sniff through windows into your house, but they do get odors in your car on the street. So this is the kind of search. Yes, it's a search, but one that the police don't have to justify.
03-923 +++$+++ 10179 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But this is with a specific investigative tool.
03-923 +++$+++ 10180 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's a specific investigative tool when I put on my glasses to look through a window.
03-923 +++$+++ 10181 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, this is --
03-923 +++$+++ 10182 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't see why it has to -- why that matters if in fact all -- if you go into a car, a police car, and you have -- drive through the neighborhood and look around, you are using a specific investigative tool, the police car, to look around and find out what's going on.
03-923 +++$+++ 10183 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This is a far more -- most respectfully, this is a far more sophisticated investigative tool.
03-923 +++$+++ 10184 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What I'm trying to get to is in my own mind it's not a question of the tools. It's a question of the expectation of privacy.
03-923 +++$+++ 10185 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Then maybe I can see if I could answer your question. Mr. Caballes in this case indeed had an expectation of privacy. When he was asked by the police officer in this case if he can consent to the search, he said no. He did not want that law enforcement officer looking in --
03-923 +++$+++ 10186 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that never --
03-923 +++$+++ 10187 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but both Place and Edmond, opinions from this Court, said sniffs are not searches.
03-923 +++$+++ 10188 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I --
03-923 +++$+++ 10189 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you want us to reverse that?
03-923 +++$+++ 10190 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice O'Connor, I do not -- I do not want you to reverse Place. Place, no pun intended --
03-923 +++$+++ 10191 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, and Edmond also said it's not a search.
03-923 +++$+++ 10192 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there were --
03-923 +++$+++ 10193 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It was the stop of the cars in that case that caused the result.
03-923 +++$+++ 10194 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The way I understand Place it was contextually limited. In Place, the whole purpose of the seizure, the taking of the luggage, was to submit it to a drug-detection sniff. That is the opinion authored by Your Honor, that specifically stated -- I'm not going to say took for granted, but it specifically stated that the -- the context -- and that's what we have to look at Place -- the --
03-923 +++$+++ 10195 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Fine. We had a context there where we supported it, but in the process said the sniff, the dog sniff, was not a search.
03-923 +++$+++ 10196 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I --
03-923 +++$+++ 10197 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you want us to say something else here.
03-923 +++$+++ 10198 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that first in -- in that case, in Place, the -- the Court --
03-923 +++$+++ 10199 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The context here was a legitimate traffic stop.
03-923 +++$+++ 10200 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But it was -- unlike Place, the legitimate traffic stop here was completely unrelated to the purpose of the dog sniff. There was an absolute --
03-923 +++$+++ 10201 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The dog sniff is not a search. What difference does it make?
03-923 +++$+++ 10202 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again, I would again respectfully assert that the dog sniff is a search and the way Place was decided, first, the decision had to be made, in the context of -- of that case, what was worse. What were they going to do with the luggage? Were they going to open the luggage first? So, of course, the Court had to decide in that case that it wasn't that kind of a -- a search. It wasn't as egregious a search as actually opening the luggage. Then you --
03-923 +++$+++ 10203 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This -- the trunk of the car didn't have to be opened here.
03-923 +++$+++ 10204 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor.
03-923 +++$+++ 10205 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The trunk of the vehicle did not have to be opened here. You're talking about a dog sniffing on the exterior of the vehicle that was legitimately stopped for a traffic violation.
03-923 +++$+++ 10206 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, in this context, unlike in Place, there was absolutely no relationship between the -- the dog sniff and the dog sniff of Caballes' trunk and the sniff of the luggage that was placed at LaGuardia Airport in Place. There's a great distinction. Moreover --
03-923 +++$+++ 10207 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose a policeman follows me around. He just -- just follows me around, observing with his -- with plain eyes, nothing else. Now, is that a search? Does he need probable cause to do that? Now, he's wasting his time and he's wasting public money and maybe he should get fired for doing it, if he has no reason to follow me.
03-923 +++$+++ 10208 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not a search.
03-923 +++$+++ 10209 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And maybe -- maybe I'd have a harassment action against him if he does it, you know, blatantly. But is that a search?
03-923 +++$+++ 10210 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is not a search. If he follows you --
03-923 +++$+++ 10211 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. So -- so the mere fact that one is in investigating something doesn't make it a search. What does make it a search?
03-923 +++$+++ 10212 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-923 +++$+++ 10213 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The fact that you find out something?
03-923 +++$+++ 10214 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think here the most distinctive point here is that Caballes had already been stopped unlike the hypothetical that you just presented to me. Caballes was already stopped for one -- for probable cause. There's no question about that. But then now the police launch into a wholly unrelated investigation that's --
03-923 +++$+++ 10215 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You think it would be better if he hadn't been stopped? If -- if they just -- just randomly walked up to somebody who was going through a toll booth and had the dog sniff the car, you think that would be a better case --
03-923 +++$+++ 10216 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think --
03-923 +++$+++ 10217 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- for allowing it than -- than yours?
03-923 +++$+++ 10218 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Even in that case, even in a hypothetical where they used the dog for a toll booth, I have a problem with that. That to me is a search. It's different than -- I would assert it's different than if they walked -- one of the hypotheticals that the Justices asked my adversary in this case, when they asked, well, what if they walked the dog instead around a -- parked cars or parked cars at a stadium? It depends for what purpose they want to walk those parked -- that dog around those parked cars. My assertion is --
03-923 +++$+++ 10219 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, they said it's to find out if there's any contraband.
03-923 +++$+++ 10220 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor.
03-923 +++$+++ 10221 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The answer was they are at liberty -- the police are at liberty to use dogs to find contraband. And your -- Illinois I think was very candid with the Court in saying we have taken from your decisions that a dog sniff is not a search. So anything else is a matter of police policy. It had nothing to do with the Fourth Amendment.
03-923 +++$+++ 10222 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I strongly differ. I have to look at the purpose that they are going to use the dog for. This Court --
03-923 +++$+++ 10223 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, does it matter if, for instance, in today's world on Capitol Hill we're concerned about terrorist attacks. What if the dog is trained to alert to explosives? Now, can the police just decide they're going to sniff any car that's parked on Capitol Hill?
03-923 +++$+++ 10224 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice O'Connor, it depends on the purpose.
03-923 +++$+++ 10225 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes or no, in your view. The purpose is to disclose potential explosives in a parked vehicle.
03-923 +++$+++ 10226 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The answer is yes. I have no problem whatsoever.
03-923 +++$+++ 10227 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wherever it is.
03-923 +++$+++ 10228 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Wherever it is because I look at it as a public safety exception. And this Court in the Edmond case specifically condemned a general search -- a general crime -- let me use the exact words. General interest in crime control, to quote the Edmond case. And that's --
03-923 +++$+++ 10229 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I still want to go back to my question because I think you may have an answer to it and I want to focus you --
03-923 +++$+++ 10230 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm struggling, yes.
03-923 +++$+++ 10231 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I want to focus you on the question. I think what you're doing, which is a reasonable thing to do, but it isn't my approach, look to the English definition of search. I say forget that. Let's look to the Fourth Amendment because there are a whole range of searches that don't even fall within the Fourth Amendment in the sense that we don't need a justification. And I take Place as saying that dog sniffs is one of those, whether it does or doesn't use the word English search. So I want to know why it is that this dog search is one of the ones that's a Fourth Amendment search, i.e., one of the ones that requires a justification in terms of what the Fourth Amendment is about, privacy.
03-923 +++$+++ 10232 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It invades a public -- I'm sorry. It invades a private space that in this particular case the respondent Caballes had a privacy interest in, that he wanted to exclude the whole world from going inside his trunk. That's the difference.
03-923 +++$+++ 10233 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but you don't respond to one point in Place, if I remember correctly. It must be a legitimate expectation of privacy, and if the only thing the dog can detect is something illegitimate, how can you say there's an invasion of a legitimate expectation in privacy?
03-923 +++$+++ 10234 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it is -- it's true that one does not have an expectation of privacy in contraband, but by the same token, I have an expectation or Mr. Caballes had an expectation of -- of privacy of what's inside that closed trunk, his car. The Carroll doctrine is still good law. We still apply the Fourth Amendment in cars. It's true that the home is sacrosanct, but just because it's a home, it's not a talisman where -- where the Fourth Amendment no longer applies.
03-923 +++$+++ 10235 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There was something you said in -- in your brief that I thought was unclear. So may I ask you --
03-923 +++$+++ 10236 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course.
03-923 +++$+++ 10237 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- if Officer Gillette, the one who did the arrest for speeding, had a dog in the back of his car, instead of having the second officer come with the dog, would it have been permissible? I thought you had conceded that it would be a different situation if the dog was already there when the car stopped.
03-923 +++$+++ 10238 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ First of all, Justice Ginsburg, my recollection is that Trooper Gillette, who was the officer who stopped Caballes, did not have a -- a dog in the car.
03-923 +++$+++ 10239 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, he didn't, but I'm asking you to imagine that he did.
03-923 +++$+++ 10240 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I see. If he had a dog in the car and the dog just happened to have alerted without his cuing the dog or walking the dog -- and I'll answer that in a moment too -- that would be pure serendipity. That might happen. If -- if the dog just happened to have alerted. But if the troopers deliberately drove the car close by -- and in reality, that's not what happens.
03-923 +++$+++ 10241 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. I would like to take this scenario as it is except that when the officer gets out of the car, his dog comes with him.
03-923 +++$+++ 10242 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
03-923 +++$+++ 10243 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ This is very -- make no other changes except that Gillette has the dog and Gillette with the dog go to Mr. Caballes' car.
03-923 +++$+++ 10244 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My understanding of the way this works, Justice Ginsburg, is that he just couldn't go up to the car without -- and the dog would alert. My understanding of the way these dogs are trained is that they specifically -- that the officer has to walk the dog around the car, the vehicle, first of all.
03-923 +++$+++ 10245 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He does that. He does that.
03-923 +++$+++ 10246 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He does that.
03-923 +++$+++ 10247 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, in this case.
03-923 +++$+++ 10248 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He does that.
03-923 +++$+++ 10249 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
03-923 +++$+++ 10250 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To cue the dog. In other words, tell him it's not playtime anymore, that he has to work.
03-923 +++$+++ 10251 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
03-923 +++$+++ 10252 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To trigger something in the -- in the canine brain.
03-923 +++$+++ 10253 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
03-923 +++$+++ 10254 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you -- I'm --
03-923 +++$+++ 10255 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would it be bad? Would it be bad if that's what he did?
03-923 +++$+++ 10256 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It wouldn't be bad that's what -- well, yes. In this case it's very bad because it's a search. There's no question. I'm not coming off of that.
03-923 +++$+++ 10257 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But I'm -- I'm trying to understand what you meant in your brief when you said if the dog had been in Gillette's car when Gillette stopped Caballes, the situation would have been different.
03-923 +++$+++ 10258 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think what I meant there -- there would have been -- it would have been purely happenstance, almost like plain view. It would have been -- without him even cuing the dog or starting to walk the dog around, my answer to that Justice Ginsburg is that that would have been all right. Except now that -- the more I think about it, I'm not so sure that it would be all right. And my answer to -- and the reason for that is I think in that case the officer, if he could do such a thing and the dog would alert, would be exploiting the situation, would just be taking the dog and walking him around the car and seeing that the dog alerted. So in other words, there -- there would be, I think, an exploitation of -- of the -- of the traffic stop.
03-923 +++$+++ 10259 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So then it really makes no difference whether it was Gillette who had the dog in his car or whether the dispatcher called another officer who had the dog.
03-923 +++$+++ 10260 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct, Your Honor.
03-923 +++$+++ 10261 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It doesn't -- so you're retracting that. You, I think, were asked but I'm -- I'm not sure you fully answered. Suppose the police, as Atwater would allow, arrested, made a full arrest of Caballes, and then they impound his car. In the place where they put it, couldn't they have a dog go around the car there?
03-923 +++$+++ 10262 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Yes. I -- if we had an Atwater situation -- in this case there wasn't an Atwater situation because there was first a warning given. You're correct. There was a warning given. I'm sorry. The officer Gillette told Caballes he was going to give him a warning. So unlike the Knowles --
03-923 +++$+++ 10263 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But he could have. He could have. I mean --
03-923 +++$+++ 10264 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He could have, but he didn't.
03-923 +++$+++ 10265 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- is -- is --
03-923 +++$+++ 10266 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But he didn't. He didn't. Instead, he chose to treat this as more of a Knowles situation. This case is -- is on all fours, no pun intended, like Knowles. In other words, in the -- in Knowles v. Iowa, the Court -- a case of this -- I'm sorry. Let me untwist my tongue. In Knowles v. Iowa, you had a -- you had a traffic stop and after the traffic stop, there was a statute that said unrelated to the traffic stop, you can go in and search. And this is the same thing. This officer here Gillette treated Caballes as the officer in Knowles in -- treated Mr. Knowles in Iowa. It's the exact same thing.
03-923 +++$+++ 10267 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, but the -- the difficulty that I have with that argument is take the -- take the case of -- of the arrestable offense in which it is undoubtedly the case that although the police don't normally arrest, they -- they can. Your -- if I understand your argument, you're saying if they, in fact, do arrest, they may then take the dog around the car, and indeed, I presume you would agree, they could make an inventory search because they've got to protect themselves against claims that they lost property and so on. So there's no question that in that case, as -- as you have argued it, they could make a full-blown search and -- and certainly can use the dog. But if they choose not to arrest on the highway, they can't. My problem is how can you say that there is a reasonable expectation of privacy in case number two if you admit that the police can search in case number one. How does that affect the reasonable expectation of privacy?
03-923 +++$+++ 10268 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To me, once a person is told that he is not going to be under arrest, it changes the whole complexion of the case. I think it's a completely different -- a completely different scenario. We don't have an arrest. It doesn't matter. Atwater --
03-923 +++$+++ 10269 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Could the officer change his mind? I mean, he -- he did say I'm just going to give you a citation, and then he said, mind if I search your car. This is before the -- the dog showed up. And suppose the person who had been speeding said, yes, I mind. Don't search my car. And then the police said, well, in that case I'm going to arrest you.
03-923 +++$+++ 10270 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's a difficult question, but I have to look at what -- I think reasonableness is judged. Again, I'm going to remember what the -- those cases taught. I think what Knowles taught, that reasonableness is judged by what the police actually do as opposed to what they might have done.
03-923 +++$+++ 10271 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Meczyk, I assume that your answer to whether it's lawful to have a -- a dog at a bus depot just to sniff the bags of people who were coming off, without stopping them, but just -- just to have the dogs there, that's unlawful.
03-923 +++$+++ 10272 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It depends --
03-923 +++$+++ 10273 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ For narcotics, not for bombs, not for -- just -- just for narcotics. The police think, you know, a lot of narcotics goes on interstate buses. We're going to put a dog in the bus depot.
03-923 +++$+++ 10274 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's a little less problematic to me, Justice Scalia, than the type of stop I'm talking about here.
03-923 +++$+++ 10275 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why?
03-923 +++$+++ 10276 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's a little less problematic. One, because it's a public place and I -- I think --
03-923 +++$+++ 10277 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, so is the road, for Pete's sake.
03-923 +++$+++ 10278 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I know, but -- but here I think there's a lesser expectation of privacy. Well, I don't even want to go that far. I -- I have to answer your question. I think that submitting the dogs without any -- submitting the luggage without any reasonable articulable suspicion --
03-923 +++$+++ 10279 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
03-923 +++$+++ 10280 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- unlike the case --
03-923 +++$+++ 10281 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
03-923 +++$+++ 10282 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- unlike the case in -- in Place, that that to me is still a search. So --
03-923 +++$+++ 10283 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. That's -- that's what I think you should say.
03-923 +++$+++ 10284 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I am saying it.
03-923 +++$+++ 10285 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but that isn't -- I take it you don't --
03-923 +++$+++ 10286 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sorry it took me so long.
03-923 +++$+++ 10287 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there anything wrong with the policeman himself taking a sniff?
03-923 +++$+++ 10288 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It goes back to --
03-923 +++$+++ 10289 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's the great Limburger cheese robbery. (Laughter.)
03-923 +++$+++ 10290 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He stopped the car and he walks around. Anything wrong with that?
03-923 +++$+++ 10291 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's nothing wrong if he can detect Limburger cheese. That to me is like plain smell.
03-923 +++$+++ 10292 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right.
03-923 +++$+++ 10293 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As awful as that --
03-923 +++$+++ 10294 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So plain --
03-923 +++$+++ 10295 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As awful as it might be --
03-923 +++$+++ 10296 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. So -- so what you're saying is -- and this must tie back to reasonable expectation of privacy. All right? Because it's okay for the policeman to do it, and it's okay for dogs to do it in the bus station, and it's okay to use a dog not in the bus station with a car if in fact you actually are going to put him under arrest, although here you had probable cause to do so, I take it. And now you have to draw a pretty fine line. But it's not okay where it's not the bus station, but it is the car and in fact the dog is doing the sniffing -- and there are a lot of dogs around that can sniff -- and you did have probable cause but you didn't say it. And in face of Justice O'Connor's case which said that -- you see. Well, I mean, this is -- this is --
03-923 +++$+++ 10297 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I guess you --
03-923 +++$+++ 10298 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, I'm not saying you couldn't draw that line, but I'm saying it's pretty tough I think.
03-923 +++$+++ 10299 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I guess you're telling me I'm -- I'm the underdog in this case.
03-923 +++$+++ 10300 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I don't know. (Laughter.)
03-923 +++$+++ 10301 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm right? Am I -- I mean, that --
03-923 +++$+++ 10302 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is --
03-923 +++$+++ 10303 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you're going to draw the -- well, I don't want you to repeat yourself necessarily.
03-923 +++$+++ 10304 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. It --
03-923 +++$+++ 10305 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you had already drawn the line at a different place than Justice Breyer suggested because in response to Justice Scalia, you said if it -- if it were going into the bus terminal just to sniff for narcotics, unlike explosives, it would be an impermissible search.
03-923 +++$+++ 10306 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, correct, Justice --
03-923 +++$+++ 10307 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That would be --
03-923 +++$+++ 10308 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct, Justice Ginsburg. What makes this particular so --
03-923 +++$+++ 10309 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But -- but is -- why -- why don't you simply say, look -- have a very simple line. If they can arrest, they can sniff. If they can't arrest, they can't sniff without individualized suspicion going to drugs or whatever.
03-923 +++$+++ 10310 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would agree with that if I use an -- if -- if you're referring to an Atwater type scenario. If they have probable -- if they decide to arrest, even though it's on a minor traffic case, such as Atwater, which was a seat belt, as long as it's -- if -- if it's minor and if the officer elects to choose to do a full-blown arrest, then all the consequences that follow from that arrest are -- it's going to happen. Excuse me. It's going to happen.
03-923 +++$+++ 10311 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But what -- what is the answer to the reasonable expectation to privacy question in that case? Isn't your expectation of privacy identical, whatever it may be, or isn't the reasonable expectation of privacy identical, whatever that may be, without regard to the discretionary decision of the officer to arrest or not?
03-923 +++$+++ 10312 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think that when the officer does a full-blown arrest, as was envisioned in Atwater, you know that you -- the person knows that he or she does not have a reasonable expectation of privacy.
03-923 +++$+++ 10313 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you're saying that the -- the reasonable expectation of privacy depends upon the officer's discretionary judgment whether or not to arrest. Isn't that what you're saying?
03-923 +++$+++ 10314 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Essentially yes, because I think that the officer takes a physical action. It's just more than words. It's also his deeds. I think in Atwater, unlike Knowles -- in Atwater, in that case, I think the -- the officer did make an election, and there was a full-blown or a full-fledged arrest. And I think there your -- your reasonable expectation to privacy does, in fact, go out the window. But this is so different. This was just a warning. Period. It was nothing worse than a warning. What makes this stop so pernicious is that it takes place in front of the whole world and is accusatory. It is profoundly embarrassing, and it is humiliating to everyone on the street. So if a person is stopped and the officer just decides to stop you for a minor traffic offense, that's the worst part about this case. Just a minor traffic offense, really a frivolous offense, basically what any law-abiding citizen would happen to -- it could happen to anyone. And as this Court has said, even in Whren, there are so many multiple technical violations of -- of -- technical violations --
03-923 +++$+++ 10315 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, I think it's worse if -- if you're subjected to it without having committed any violation at all. Every time I travel abroad and come back into the country, customs officers have dogs and -- and they parade the dogs through -- through the baggage terminal. Do -- do I feel offended by that?
03-923 +++$+++ 10316 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Scalia --
03-923 +++$+++ 10317 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This isn't a public safety matter. They're -- they're not smelling for bombs. They're -- they're smelling for contraband. And according to you, that is bad.
03-923 +++$+++ 10318 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- in that situation, when you enter the country -- and this Court has said many times again -- it's a border search. There's nothing that I can argue against the border search. It's the -- or the functional equivalent of the border. That is a border search. I bring luggage to the airport, in today's world I have a lesser expectation of privacy. If I know I'm traveling abroad and coming into the United States, that's different. That's different in an airport.
03-923 +++$+++ 10319 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. A bus station is different, though.
03-923 +++$+++ 10320 +++$+++ TRUE +++$+++ MR. MECZYK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A bus station here inside the United States is different I think. I -- I look at your airport hypothetical as being -- as dealing with a border. If it's not at a border and I use your hypothetical, it's at O'Hare Airport or Reagan International Airport and they bring a dog up to sniff for drugs at the carousel, that to me is a search. It's like -- I think you said in one opinion once if it -- you used the duck analogy, well, if it walks like a duck or quacks like a duck. Here it's still a search. It walks like a -- a dog and it acts like a dog, but its specific function is in fact to search out in public and humiliate people. If there are any further questions. I respectfully ask this honorable Court to affirm the wise judgment of the Illinois Supreme Court. Thank you.
03-923 +++$+++ 10321 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Meczyk. General Madigan, you have I think about 3 minutes left.
03-923 +++$+++ 10323 +++$+++ FALSE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens. Let me make three brief points. Number one, Justice Ginsburg asked a question about something that was in the respondent's brief, whether or not it made a difference if a dog was with Master Sergeant Gillette when he initiated the stop or if the dog was later brought, as was the case here, by Trooper Graham. Really what Mr. Caballes is arguing for here is an inadvertence requirement which this Court very clearly held in Horton, there is no such requirement of inadvertence. And so a law officer, if they are at a lawful vantage point, do have the ability to detect incriminating facts. That is not something that has to occur inadvertently. It can happen intentionally. Second, Justice Scalia asked a question about plain view, and similar to plain view, a dog sniff does not effect an incremental search or seizure. And therefore, similar to plain view, a dog sniff does not require Fourth Amendment justification. And let me finally acknowledge something that Justice Souter brought up, which is whether or not, by walking a dog around a house, you in fact would have a search. Let me -- now, that is certainly a closer case than whether walking a dog around a car constitutes a search, which we say is not. But ultimately you would reach a similar result because the principle is not going to extend to cars in the same manner in -- in Kyllo as the thermal imager did. Finally, if there are no further questions, we would ask that the judgment of the Illinois Supreme Court be reversed.
03-923 +++$+++ 10324 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General Madigan. The -- the case is submitted.
03-923 +++$+++ 10325 +++$+++ TRUE +++$+++ MS. MADIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
03-931 +++$+++ 10329 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll now hear argument in Florida against Nixon. Mr. Lemieux.
03-931 +++$+++ 10331 +++$+++ FALSE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: When experienced counsel thoroughly investigates, prepares for trial, and discusses his trial strategy with his client, a challenge for effectiveness may not presume prejudice. Rather, this Court's two-part inquiry, articulated in Strickland v. Washington, is the proper measure. The Florida Supreme Court erred in its decision below for three main reasons. First, they failed to apply Strickland's two part circumstance-specific, performance prejudice inquiry to a question of trial strategy. Second, it improperly presumed prejudice under this Court's decision in United States v. Cronic where there was neither a complete denial of counsel, nor did counsel entirely fail to subject the State's case to meaningful adversarial testing. Third, the Florida Supreme Court improperly expanded this Court's decision in Boykin v. Alabama from governing pleas of guilt to governing tactical decisions made during full-fledged trials. For these three reasons and because the Florida court's decision conflicts with Strickland and its progeny and will disrupt the effective administration of justice, we request reversal.
03-931 +++$+++ 10332 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Counsel, was -- was the attorney's essential concession of guilt sort of the functional equivalent of a guilty plea, do you think?
03-931 +++$+++ 10333 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice O'Connor, it was not. Mr. Corin, after speaking to his client on three occasions about this trial strategy, sought to concede the underlying -- the underlying crimes but to argue what was the most essential part of this case, and that was whether or not death should be the outcome of the jury.
03-931 +++$+++ 10334 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, yes, he clearly tried to preserve a role in the sentencing, but we often have guilty pleas and then leave the sentencing to be determined. Was -- was what he did concerning the guilt/innocence phase the equivalent of a guilty plea, do you think?
03-931 +++$+++ 10335 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was not, Your Honor, because a guilty plea, as this Court talked about in Boykin v. Alabama, gives up rights of the defendant. The lawyer and the defendant waive rights. They waive the right to trial. They waive the right to have the State prove their case beyond a reasonable doubt. They waive the right to have a jury, to confront witnesses, to cross examine, all of the attendant trial rights. Mr. Nixon -- JUSTICE
03-931 +++$+++ 10336 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was there any cross examination of witnesses conducted?
03-931 +++$+++ 10337 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There was some cross examination, not a lot. There was cross examination of one of Mr. Nixon's uncles, who was one of the seven confessions in this case, and we don't know specifically why Mr. Corin engaged in that cross examination. It could be because that was probably the weakest of the seven confessions and perhaps he wanted the jury to hear that that confession was weak.
03-931 +++$+++ 10338 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There was also an objection to introduction of -- of photographs that -- that were inflammatory, wasn't there?
03-931 +++$+++ 10339 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, there was, Justice Scalia. In fact, you know, Mr. Nixon was -- was very much engaged in the guilt phase of this trial. He objected to the introduction of evidence.
03-931 +++$+++ 10340 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Those photographs would have infected the -- the penalty phase, as well as the guilt phase. So it was important for him to object to them.
03-931 +++$+++ 10341 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, that's correct.
03-931 +++$+++ 10342 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In the guilt phase.
03-931 +++$+++ 10343 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You said Mr. Nixon was -- was the client. Was he in the courtroom?
03-931 +++$+++ 10344 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Nixon was in the courtroom for portions of the trial. He was in --
03-931 +++$+++ 10345 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was -- was he there -- and I'll check the record -- when the attorney told the jury that -- that his client was -- was guilty, that he basically was conceding guilt?
03-931 +++$+++ 10346 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Nixon was not in the courtroom for the opening statement or the closing statement.
03-931 +++$+++ 10347 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But not for the opening statement.
03-931 +++$+++ 10348 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He was there during some of voir dire. He was there after the opening statement when two witnesses testified, one who testified that he was the person who tried to sell the victim's car and positively identified him in the courtroom, and another when the sheriff's deputy positively identified him as the person who confessed and gave the 45-minute confession and the person he arrested. After those two witnesses testified, Mr. Nixon then decided to leave the courtroom on that occasion.
03-931 +++$+++ 10349 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The other side says that guilt is not as -- not as clear as you -- as you make it out. Is -- is that -- is that issue even before us here?
03-931 +++$+++ 10350 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your -- Your Honor, none of that evidence has been presented in any of the post-conviction proceedings, and while it's creative, I think it's not before this Court because it's never been entered into evidence. It's just speculation.
03-931 +++$+++ 10351 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it isn't a matter of whether it's before it. I -- I just wonder whether it goes to -- to the issue here, whether you needed to get his assent or not. It -- it probably goes to the quite separate question of whether there was inadequate performance by counsel. No? Is that question before us also?
03-931 +++$+++ 10352 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is, Your Honor. Both questions are before you. I -- I believe that --
03-931 +++$+++ 10353 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was -- was the latter question ruled upon below?
03-931 +++$+++ 10354 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What the Florida Supreme Court did is they found that since this was the functional equivalent of a guilty plea, if there was not explicit and affirmative consent, that Cronic would apply and a presumption of prejudice would follow.
03-931 +++$+++ 10355 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, but -- no. I'm sorry.
03-931 +++$+++ 10356 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And never -- and never reached the -- the inadequate performance of counsel question.
03-931 +++$+++ 10357 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the only thing that they do say, Your Honor, is that they say that the strategy employed by Mr. Corin may well have been in Mr. Nixon's best interests.
03-931 +++$+++ 10358 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, but they didn't --
03-931 +++$+++ 10359 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They may, but that wasn't a definitive ruling. So do you agree that if we accept the position that you are taking, a remand would require for that -- for that evidence to be considered on the straightforward question did counsel perform adequately?
03-931 +++$+++ 10360 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, there were three hearings in the post-conviction proceedings, and the -- the defense, who had the burden in those cases to prove ineffective assistance of counsel only put on Mr. Corin and the State cross examined Mr. Corin and called some other witnesses. I don't know what further evidence could be adduced that would go to a separate claim.
03-931 +++$+++ 10361 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it -- it might be that there would be no justification for further evidence, but there would have to be a Strickland ruling on the merits of the Strickland issue, wouldn't there be?
03-931 +++$+++ 10362 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that this Court could engage in that. I think you could remand and have the Florida Supreme Court engage in that.
03-931 +++$+++ 10363 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But nobody has explicitly done that yet. Is that correct?
03-931 +++$+++ 10364 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They have not because the Florida Supreme Court ruled under Cronic.
03-931 +++$+++ 10365 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because of the Cronic point.
03-931 +++$+++ 10366 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-931 +++$+++ 10367 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what about the courts below the Florida Supreme Court? Didn't they rule on it?
03-931 +++$+++ 10368 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. Three trial court judges all found that there was effective assistance of counsel. Judge Hall, who presided over the trial, in fact, described Mr. Corin's advocacy as being right on the mark. He found in his approach an excellent analysis of the realities of the case and the preservation of credibility and the credibility of any mitigating circumstances. He also found that it was perhaps the only steps that could have been taken to afford his client some relief.
03-931 +++$+++ 10369 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask --
03-931 +++$+++ 10370 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Getting back to the practical equivalent of a guilty plea, Brookhart v. Janis do you think goes to the outer margin of what the functional equivalent is? Are there other examples of what a functional equivalent would be that would fall under both Cronic and Brookhart? We have a line-drawing problem --
03-931 +++$+++ 10371 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure, sure.
03-931 +++$+++ 10372 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- as -- as to whether or not this is the functional equivalent.
03-931 +++$+++ 10373 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think that Brookhart in fact probably supports our position because in Brookhart the situation was factually different. It was more of a -- a guilty plea situation where there was going to be this prima facie trial, which was, in essence, a guilty plea with a profferer through one witness. And in that case, the defendant stood up and said, I want a trial, I want everyone to understand I'm not pleading guilty. And this Court said that counsel can't waive those rights to a full trial when the defendant is objecting to it, but if the defendant consents or acquiesces, this Court said the ruling would be different. Well, certainly Mr. Nixon at least acquiesced. Mr. Corin spoke to him on three occasions -- and that can be found at 255 of the joint appendix -- and talked to him about this strategy. Mr. Nixon never responded either way as to his assent or what he wanted to be done. Now, Judge Ferris, who was the third trial court judge who heard this matter, said that because of the longstanding relationship between this defendant and this lawyer, because he had represented him three times before over a 2-year period, that there was a level of relationship, they were both veterans of the criminal justice system, they had a rapport with each other. And she was able to determine that there was consent to the trial strategy in the fact that Mr. Nixon did not object to it. The Florida Supreme Court wants explicit and affirmative consent, and they want a colloquy on the record. And we think that this will be very problematic, and we're already seeing these problems in Florida.
03-931 +++$+++ 10374 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do we have any cases involving what -- what you describe as tacit consent?
03-931 +++$+++ 10375 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In terms of a trial strategy, Your Honor?
03-931 +++$+++ 10376 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In -- in terms of -- of pleading guilty. Do we have any cases in which a similar thing happened, that the counsel said I'm going to plead you guilty and the -- the defendant doesn't say anything, just passively sits there as though, you know?
03-931 +++$+++ 10377 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think you do and I think that Boykin addresses that there has to be a colloquy with a plea of guilty, and that the -- the defendant can't tacitly consent to a plea of guilty. But our position is that this is not a plea of guilty. This is not a complete surrender. This is a tactical retreat made for reasons of trying to contest the one issue in this case that could be contested, and that was trying to save this defendant's life. This lawyer took 52 depositions. He hired medical professionals. He investigated Mr. Nixon's background, going back to the age of 10. He did everything --
03-931 +++$+++ 10378 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What happened to the photographs? I wasn't clear from the submissions. There were inflammatory photographs. Were they in fact admitted?
03-931 +++$+++ 10379 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They were admitted over his objection, and that was taken up on direct appeal to the Florida Supreme Court, and the Florida Supreme Court, in Nixon I, did not find that they were inflammatory and found that their introduction was proper. JUSTICE
03-931 +++$+++ 10380 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But they were not reintroduced at the sentencing phase.
03-931 +++$+++ 10381 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They were already in evidence and the State incorporated its evidence from the guilt phase into the sentencing phase. It's just a procedure. The only evidence that the State put on in the guilt phase were his prior two convictions and evidence that Mr. Nixon tortured the defendant by removing her underwear before he burned her alive. Besides that, the rest of the evidence was incorporated from the guilt phase.
03-931 +++$+++ 10382 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask if -- do you think his representation would have been inadequate if he had not discussed the strategy with the client but everything else was exactly the same?
03-931 +++$+++ 10383 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It may -- it may have been but it would be something that would be evaluated under Strickland, Justice Stevens.
03-931 +++$+++ 10384 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why would it be -- why would it make any difference under Strickland whether he talked to the client or not if the same -- if the same considerations are in play? In other words, he just knew it was the -- the wiser strategy to try and save him from the death penalty?
03-931 +++$+++ 10385 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the only point I would make there is this Court said in Strickland that counsel should consult with their -- with their client, with the accused, and that that's an obligation on counsel. If there was a failure to consult, perhaps that would be argued that that failure to consult was deficient performance.
03-931 +++$+++ 10386 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't that -- isn't that because we -- we take the consultation at -- at least as an indication that the lawyer was -- was adequate in communicating back and forth with the client so that the client could tell him what the lawyer needed to know to defend him?
03-931 +++$+++ 10387 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Souter, I think that's correct. I think that there could be meaningful discussions between the defendant and the accused that can help the lawyer represent the defendant at trial.
03-931 +++$+++ 10388 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But even apart from the competence of the lawyer, whether it shows adequate performance by the lawyer, can't you -- can't you divide the Boykin rule, which doesn't relate to the lawyer's competence at all, into three different categories: number one, where there is express consent which is -- makes it okay; number two, when there's no consent at all, which is bad; and number three, where there is what -- what you call here implicit consent? Aren't there really three different situations?
03-931 +++$+++ 10389 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, that's correct. That's what the Court speaks about in Brookhart, and although we think that that's more of a guilty plea case than a trial strategy case, if this Court were to go in that direction, that standard certainly could apply.
03-931 +++$+++ 10390 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In --
03-931 +++$+++ 10391 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It seems to me rather difficult to -- to draw that line. If -- if consent is necessary, why shouldn't it be express? I'm not saying consent is necessary, but normally if you're going to have something this important and consent is necessary, it seems to me it ought to be clear on the record. You certainly wouldn't accept this for a guilty plea, what you have here.
03-931 +++$+++ 10392 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor, but in -- I think this Court has held in cases like Jones v. Barnes and Taylor v. Illinois, that questions of strategy are questions that are reserved to the lawyer, and that all --
03-931 +++$+++ 10393 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's right, and that's why I'm suggesting if it really is a question of strategy, you don't even need implicit consent.
03-931 +++$+++ 10394 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
03-931 +++$+++ 10395 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I'm not sure there's a --
03-931 +++$+++ 10396 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We --
03-931 +++$+++ 10397 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- three-part rule, as Justice Scalia says. There's just a two-part rule.
03-931 +++$+++ 10398 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We -- we agree with that position, Justice Stevens.
03-931 +++$+++ 10399 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I -- I assume -- I assume your response is that if you eliminate from the Boykin rule the possibility of implicit consent, you are forcing the lawyer who believes he has the consent of -- of a -- an intractable client such as this fellow who -- who didn't go into the courtroom, took all his clothes off so they couldn't take him into the courtroom. He was obviously not -- didn't want to be responsive. Your -- you would have forced this lawyer to adopt a strategy which the lower court found would have been damaging to this defendant, even though the lawyer believes that the defendant really approved of the strategy that the lawyer was undertaking. Why would we want to adopt a rule like that?
03-931 +++$+++ 10400 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it's not our position that you should a rule of consent. I was saying if this Court were going in that direction, that the acquiescence level would be what we would suggest.
03-931 +++$+++ 10401 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what about a --
03-931 +++$+++ 10402 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If there were a plea -- if it were a plea of guilt, wouldn't this be an academic question because I assume Florida has some counterpart to the rule 11 colloquy where the judge must confront the defendant and ask him a series of questions to elicit his consent? So this issue can come up, if you have a counterpart to rule 11, only in the concession of guilt by the attorney but with a trial.
03-931 +++$+++ 10403 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, Florida does have a rule for a guilty plea, but -- and now the Florida Supreme Court says there has to be a colloquy for a strategy decision that -- where there's a concession, but we disagree with that. We don't think that there should be a colloquy. We don't think that that -- that should be required. And we think that that's problematic and we're already seeing in Florida that -- that judges, laboring under the Nixon decision, are asking questions to defendants as to whether or not all sorts of strategy decisions are decisions they agreed to.
03-931 +++$+++ 10404 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If Florida wanted to adopt that procedure on its own, that wouldn't present a Federal question. I mean, the prosecutor would have no -- the prosecutor would have no right to stop it if the -- if Florida said, well, we want that same colloquy to go on whether it's a guilty plea or whether it's a concession of guilt.
03-931 +++$+++ 10405 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well -- well, Justice Ginsburg, they're doing it under these decisions of this Court is the reason why that they've articulated that this has to be done. They're saying it's a functional equivalent of a guilty plea. Therefore, Boykin is required and therefore there has to be a colloquy. And we think that those colloquies are tremendously problematic, that they invade the attorney-client privilege. They may affect an accused's right to -- you know, not to self-incriminate himself. There may violate the relationship between the lawyer and his client.
03-931 +++$+++ 10406 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but these -- let me just understand. These colloquies are not, in your view, commanded by the Florida Supreme Court's holding.
03-931 +++$+++ 10407 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They are. The Florida Supreme Court specifically says you must have these colloquies to determine consent.
03-931 +++$+++ 10408 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But only -- is it -- it's not just when there's the equivalent of the guilty plea, but any major trial strategy --
03-931 +++$+++ 10409 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The lower -- Justice, I'm sorry.
03-931 +++$+++ 10410 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is this -- I want to know if the Florida Supreme Court's holding is limited to cases that are the functional equivalent of -- of a guilty plea, and -- and it's only there that they're requiring the colloquy.
03-931 +++$+++ 10411 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's only there that they've required it, but lower courts now defense counsel are making these arguments that, boy, you know, and the judge is concerned this is a strategy decision.
03-931 +++$+++ 10412 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but of course what the lower courts are doing may or may not be right as a matter of Florida law, but that's not before us really.
03-931 +++$+++ 10413 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's not before Your Honor.
03-931 +++$+++ 10414 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course, if it were a matter of Florida law, the Florida legislature could change it.
03-931 +++$+++ 10415 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Scalia.
03-931 +++$+++ 10416 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If it's a matter of Federal law, it can't.
03-931 +++$+++ 10417 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. If I may, I'd like to reserve the balance of my time.
03-931 +++$+++ 10418 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Gornstein.
03-931 +++$+++ 10420 +++$+++ FALSE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: The most serious problem with the Florida Supreme Court's explicit consent requirement is that it prevents counsel from pursuing what may be the most effective strategy for saving a defendant's life, even when counsel consults with the defendant on that strategy and the defendant does not object. In that situation, the Florida Supreme Court would require counsel to pursue an alternative reasonable doubt strategy even though that might undermine the case for sparing the defendant's life and even though the defendant has not consented to that strategy either.
03-931 +++$+++ 10421 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do we take it as a given that if he does not consent, in fact, directs his lawyer not to make this concession, that the lawyer is bound to follow?
03-931 +++$+++ 10422 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Kennedy. You would still look at that question through the prism of Strickland's reasonableness inquiry. It would raise distinct concerns. A reasonable counsel would make a reasonable effort to iron out differences. Reasonable counsel takes into account the considered views of his client. But if, at the end of that process, counsel reasonably concludes that this is the only effective strategy for saving the defendant's life, then the pursuit of that strategy is not per se ineffective.
03-931 +++$+++ 10423 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does -- does that up the ante and the defendant now is in the position to terminate the lawyer, or will the judge say it's -- it's too late, I'm not going to grant that motion?
03-931 +++$+++ 10424 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, the --
03-931 +++$+++ 10425 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ As -- as a matter of Federal law.
03-931 +++$+++ 10426 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As -- the defendant could go to the -- to the judge and his counsel could go to the judge and say, we have had such a breakdown between us on what should be done here, we think alternative counsel should be appointed. But that would be a discretionary call for the district court. So too, the defendant could say, I want to exercise my right to self-representation, which he has a right to do. So those are the two checks on that.
03-931 +++$+++ 10427 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what -- what if there's a third possibility and -- and the lawyer makes remarks in front of the jury, as -- as this lawyer did, in effect, concession kind of remarks, and the defendant stands up and says, hey, I'm not making those concessions? I am not guilty. I'm not conceding a darned thing. Does the lawyer at that point at least have a -- an option to proceed on the concession theory, leaving it to judge his performance under Strickland afterwards?
03-931 +++$+++ 10428 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If I understand your question, Justice Souter, this is a situation where there was no objection initially, the lawyer proceeded to adopt a strategy, and then there was a --
03-931 +++$+++ 10429 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I -- actually I -- I didn't get into that one way or the other. Let's assume we've got a case in which the client says, no, I -- I don't agree to these concessions. I'm not guilty and I want a defense. As I understood your -- your earlier answer, you said if -- you know, if it is the lawyer's considered judgment that this is the only way to save his life -- he's talked with him, et cetera -- he -- he still may have that option to concede. And I'm taking the -- the facts one step further and saying let's assume the -- the client goes whole-hog in his objection. And he stands up or -- or says in front of the judge and the jury, I -- I'm not conceding any of this.
03-931 +++$+++ 10430 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that sounds to me like a case where there ought to be alternative counsel appointed if there has been such a --
03-931 +++$+++ 10431 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I would certainly agree if we get to that point. But let's the lawyer does, as you at least left the door open for him to do, and -- and he does proceed to represent the guy. The judge doesn't remove him and the lawyer continues to concede. Do you -- do you think that there is any possibility on a Strickland analysis of finding adequacy of counsel?
03-931 +++$+++ 10432 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Probably not, Justice Souter, that you would analyze that under Strickland and you would find that that's not the reasonable performance of counsel in that circumstance.
03-931 +++$+++ 10433 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I --
03-931 +++$+++ 10434 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And so -- but the question here really is what do you do not in a case where there's been an objection, because there was no objection here.
03-931 +++$+++ 10435 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So a substantial component of reasonableness under Strickland is whether or not you follow the client's instructions?
03-931 +++$+++ 10436 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is one factor that reasonable counsel will take into account, but it is not the only factor. In some situations, if you're not following the defendant's instructions, it can lead to such a breakdown in the attorney-client relationship that you couldn't possibly render effective assistance of counsel. So it is going to be a factor in that respect. But this case presents only the question of what happens when there's no objection, and when there's no objection, it makes no sense to say that where there's been consultation, no objection, that instead of allowing the lawyer to exercise his reasonable judgment on what the best thing to do is, he instead has to pursue an alternative reasonable doubt strategy that is less effective. And the Sixth Amendment simply can't be read to require counsel to pursue a less effective strategy that the defendant hasn't asked for. Now, there's no perfect analogy here, but the closest analogy is to the division of responsibilities for appeal where the defendant has the right to say whether he will appeal, but counsel has the right primarily to make the strategic judgments of what arguments will be raised on appeal. So too here, the -- the defendant has the right to decide to stand trial, but client has primary responsibility for making the strategic judgment of what defenses will be raised at that trial. Now, there is -- this is an important question, and therefore there is a duty on the part of counsel to consult with the defendant, but once that consultation has occurred, and there is no objection, and the choice that counsel made is a reasonable, tactical judgment under all the facts and circumstances, his pursuit of that strategy satisfies constitutional standards. There is no requirement of explicit, affirmative consent, and the Florida Supreme Court's judgment should, therefore, be reversed. If the Court has no further questions, thank you.
03-931 +++$+++ 10437 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Gornstein. Mr. Tillinghast.
03-931 +++$+++ 10439 +++$+++ FALSE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Justice Stevens, and may it please the Court: The issue before the Court today is whether a defense counsel can concede guilt beyond a reasonable doubt in his opening and in his closing statements in the trial, particularly when the defendant is not present. We submit that the answer is no, and there's two reasons that it's no. First, we believe that it's the functional equivalent of a guilty plea as found by the Florida Supreme Court. Second, because the -- what was stated was so clearly an acknowledgement that the State had proven its case, that there was a complete breakdown of the adversarial process and there was no meaningful testing of the State's case.
03-931 +++$+++ 10440 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Tillinghast, may I go back to something you said? Because I don't want to lose sight of it. You seem to suggest that the defendant's absence from the trial should work in his favor when this was defendant's own choice not to be there. The judge met with him and said I want to make sure you know what you're doing. Right? Why should we count at all in the defendant's favor that he was -- he absented himself from trial any more than we would give a fugitive credit for not being there?
03-931 +++$+++ 10441 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, part of the issue here is -- is the lack of consent. Mr. Nixon was not present during the entire guilt phase of the trial. What we would submit is that in this case where there was the hearing in a holding cell -- it was on the record. It's part of the record before Your Honor -- where the judge inquired about Mr. Nixon's willingness to participate in his trial, and he declined to go into the courtroom, that refusal to go into the courtroom, we submit, was a refusal to attend the -- the hearing on the presumption that he was going to have a trial consistent with his guilty plea -- or not guilty plea -- excuse me -- the not guilty plea that was entered. What he anticipated was a trial where the State's case was -- was tested and it was consistent with his not guilty plea.
03-931 +++$+++ 10442 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But he --
03-931 +++$+++ 10443 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you -- you equate this to a case where the defendant is just accidentally not present. That's -- that's what I got. I -- I had the same problem with your opening two sentences as Justice Ginsburg did. You said if the defendant is absent from the courtroom. Well, in this case, he was absent because he chose to be absent. You're -- you're equating this case to one in which it was as if for some reason they forgot to have him in the courtroom.
03-931 +++$+++ 10444 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- the important issue here is there was not consent. The lack of his presence in the courtroom compounded that problem, but the important issue here and the issue before the Court is that defense counsel conceded guilt and conceded that the State had proven its case without the consent of his own client.
03-931 +++$+++ 10445 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't agree with your earlier statement that what -- what this defendant expected was a contested trial in which, you know, the State's evidence is challenged, blah, blah, blah. That's to the contrary. He said this whole thing is -- is just a big railroad job and that's one reason I don't want to be there. Go ahead and do whatever you want. He wasn't -- he wasn't expecting -- in fact, if you're -- if you're talking about is subjective expectations, they would reinforce the lawyer's belief that he had no objection to conceding guilt because he was referring to this as -- as one big railroad job.
03-931 +++$+++ 10446 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, respectfully, Your Honor, I would -- I would disagree because that what -- what we do have from Mr. Nixon is he stated that -- that he had fired his lawyer. He wanted a black lawyer. He wanted a black judge, and that he didn't want to go into the courtroom because he would be railroaded. That was after in the newspaper it had indicated that he had -- that his counsel had pled him guilty in his opening statement, and he was clearly objecting to that conduct.
03-931 +++$+++ 10447 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought he had made those statements about being railroaded before he found out about the lawyer's concession.
03-931 +++$+++ 10448 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Actually the -- you're correct, Your Honor.
03-931 +++$+++ 10449 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think that's correct.
03-931 +++$+++ 10450 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the railroading statements were before the opening statements. The objection to the newspaper story was after the opening statement.
03-931 +++$+++ 10451 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me ask you a question just about what you -- what you're assuming when you make the -- the statement -- prefaced the argument to the effect that there was a complete breakdown of -- of the adversary process. You're assuming, I take it, when you say that, that the guilt phase and the penalty phase have got to be regarded as distinct and separate phases.
03-931 +++$+++ 10452 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
03-931 +++$+++ 10453 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're dividing it in half.
03-931 +++$+++ 10454 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-931 +++$+++ 10455 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is that -- why is that legitimate? Why should a lawyer -- I mean, I presume no defense lawyer tailors his -- his guilt phase representation without a thought to what is going to happen at the penalty phase if they get to the penalty phase. And so I -- I have difficulty in saying that there should be some kind of a firewall for analytical purposes between guilt and penalty when -- when we're in a -- a question of Cronic or Strickland.
03-931 +++$+++ 10456 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the Court -- if the Court was to look at the totality and -- as opposed to looking at the guilt phase, what would happen would be that capital cases would have -- would end up having a lower standard than a non-capital case because --
03-931 +++$+++ 10457 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, they wouldn't end up having lower standards. They -- they would end up having a -- a standard at the guilt phase which takes into consideration what the lawyer is or is not going to be able to do plausibly at -- at the sentencing phase. And you know, those -- those may be very, very difficult questions, but it's hard for me to say that either the standard is different or that a lawyer should -- or that we, in setting down standards, should pretend that a lawyer somehow has to go into a state of oblivion about -- about what's going to happen at sentencing if he gets there.
03-931 +++$+++ 10458 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The difficulty here is -- is this was the functional equivalent of a guilty plea without consent, and --
03-931 +++$+++ 10459 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let me ask you this. Do you think that it's possible that in some instances it is a valid strategy to focus on the punishment/sentencing phase rather than the guilt phase if the lawyer has reviewed all the evidence and it appears to the lawyer to be overwhelming? Is it possible that there's a case where a strategy such as this might make sense?
03-931 +++$+++ 10460 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
03-931 +++$+++ 10461 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that possible?
03-931 +++$+++ 10462 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With -- with statements in the opening --
03-931 +++$+++ 10463 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that possible?
03-931 +++$+++ 10464 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not without the consent of a client with statements like this.
03-931 +++$+++ 10465 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, now you're building in something that I didn't ask. I'm asking you if it is possible that the better strategy for a defendant in a given case would be to focus on the sentencing rather than the guilt phase based on an evaluation by the attorney of the evidence.
03-931 +++$+++ 10466 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There could be circumstances.
03-931 +++$+++ 10467 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't know why you're so -- I thought that the literature was replete with Law Review articles saying that this is the best strategy. Trial judges have told us this is the best strategy. I -- I don't quite understand your hesitation unless it's to build in this -- this factor of consent.
03-931 +++$+++ 10468 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it is the --
03-931 +++$+++ 10469 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I thought this -- this was something you'd say, well, of course.
03-931 +++$+++ 10470 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it is the factor of the consent. In -- in this case, in the opening statement, the --
03-931 +++$+++ 10471 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but what -- what about the basic question, that as a matter of trial strategy, it is a recognized, acceptable, sometimes prudent, sometimes wise strategy to concentrate on a sentencing phase?
03-931 +++$+++ 10472 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the general sense, yes.
03-931 +++$+++ 10473 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And there's no difference between a capital case and a regular case insofar as the intelligence of that strategy is concerned because even when there is not a separate penalty phase, it is sometimes in the interest of the defendant to, in effect, throw himself on the mercy of the sentencer, whether that is the jury or the judge, by -- by not contesting the -- the fact that -- that he did the acts charged. That -- that occurs not just in capital case but in -- in regular cases.
03-931 +++$+++ 10474 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice, the -- the distinction here is -- is it -- it wasn't a strategy to not contest the State's case. What it -- what it was was it was a complete concession in opening statement that the State would prove its case beyond a reasonable doubt.
03-931 +++$+++ 10475 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Not entirely because both in the opening and in closing, the lawyer said to the jury, he did it, but I want you to know from my very opening that this case is about life or death, and that's the ultimate decision you will have to make. He said that in his opening and he said it in his closing. It wasn't simply a case of saying, my client did and now the prosecutor is going to go through the motions. He told the jury, what I want you to focus on is the decision you're going to have to make whether, in the counsel's words, to spare his life.
03-931 +++$+++ 10476 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Ginsburg, the issue here is that he did that and he went beyond just saying that he did it. He said that the State has proven its case beyond a reasonable doubt for murder and arson, and he did it without consent. That's --
03-931 +++$+++ 10477 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you say without consent. At least as -- the record that we have suggests that the client was told this is what the lawyer planned to do and said nothing. Justice Scalia asked a question when the prior argument was ongoing. When a client doesn't say yes and he doesn't say no, to take the words of a familiar song, mustn't the lawyer then do what he thinks is best to do? Because if he says, okay, I'm going to -- I'm going to require a full-stop trial, I'm going to cross examine every witness, he may be damaging his client. The client didn't tell him not to do that any more than he told him to do it. So mustn't the lawyer in that situation exercise his best judgment?
03-931 +++$+++ 10478 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would submit that in this case, because that it is the functional equivalent of a guilty plea, and as this Court has held under Boykin and under Brookhart that you must have voluntary and willing and knowing consent --
03-931 +++$+++ 10479 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what if we think that's not correct, that it is not the equivalent of a guilty plea? There was some cross examination. There was some participation. So if we don't accept your statement that it is the functional equivalent, then what standard do we employ for the tacit consent or the failure to affirmatively respond?
03-931 +++$+++ 10480 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice O'Connor, if -- if you're -- if the Court was to view it as not the functional equivalent, as you've suggested, you could affirm based upon the nature of the statements and finding that there was a complete failure under Cronic. And -- and with respect to the trial, there were -- there were 35 witnesses called by the State. There were five what I would submit were perfunctory questions asked on cross.
03-931 +++$+++ 10481 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you said we could affirm if we applied Cronic, but I thought the issue was whether perhaps Strickland applied, and if Strickland applies, I wouldn't think we'd be affirming necessarily.
03-931 +++$+++ 10482 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Strickland is -- is respectfully not before the Court. It was -- the record below was strictly on --
03-931 +++$+++ 10483 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the -- the question of which standard applies I thought was before the Court. Was it correct for the Florida Supreme Court to employ the Cronic standard or should it have reviewed it under Strickland? Is that not before us? Is that not --
03-931 +++$+++ 10484 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-931 +++$+++ 10485 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- one of the questions?
03-931 +++$+++ 10486 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-931 +++$+++ 10487 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Thank you.
03-931 +++$+++ 10488 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought that Boykin and -- Boykin and -- and Brookhart were about really a somewhat different matter. The language, functional equivalent of a guilty plea, is lifted from Brookhart. Boykin and Brookhart are about what a judge does, not about what a lawyer does. In Boykin, the judge accepted the guilty plea, and the Court said you can't do it without the express consent of the defendant. In Brookhart, it was a judge who accepted -- now, here it was an odd procedure, and it was that procedure that the Court called the functional equivalent of a guilty plea. And therefore, we're talking about what a judge can do. Here we're not. We're talking about what a lawyer can do and when it arises to the level of improper lack of counsel. So I don't think they govern it. Rather, I thought -- and I want your view on this -- that the most relevant case was really Roe v. Flores, you know, where -- where the lawyer did a weird thing. He didn't file an appeal. And here he's doing a little odd thing. So what we said there is you have to consult, which is just what the Government is saying here. I'm exposing that thought process to you to get your reaction.
03-931 +++$+++ 10489 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think, first, under -- under Jones v. Barnes, it's been held by this Court that there are three fundamental things that only the client can do, one of which is to plead guilty. And in -- in the Roe case, the -- the record below was -- was unclear as to what happened as to whether there was a duty for the attorney to file an appeal and what the conversations were or were not with -- with the defendant. But we would submit that -- that a guilty plea is something very special because that it goes to the heart of the case.
03-931 +++$+++ 10490 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is not a guilty plea and the words -- a guilty plea is something accepted by a judge and the judge didn't. But I grant you it's a very odd situation and very special, and that's why I wonder what the appropriate way to -- what kind of requirement there ought to be. Maybe there should be something. I'm not sure why it should rise above the level of consultation since you know, better than I, you can have some awfully difficult clients who are virtually incapable of understanding what's in their interests. And -- and that's why I'm awfully reluctant to go beyond saying you have to consult with your client. You start insisting on an answer, and you don't know what they're going to say.
03-931 +++$+++ 10491 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- the lawyer here did have alternatives. He -- he could have put the State to its burden and consistent with the not guilty plea that was entered in the case. Or as an alternative, there could have been an inquiry on the record of -- by the judge with the lawyers of Mr. Nixon to determine whether or not he was consenting to this -- this sort of -- the opening statements and the closing statements, which -- which were extraordinary, particularly the closing statement because -- and in the closing statement, he specifically said that the State did prove beyond a reasonable doubt that each and every element of the crimes charged, first degree, premeditated murder, kidnapping, robbery, and arson, had been proven, which is truly extraordinary. Here is a situation where the lawyer who is the only person in the courtroom, because Mr. Nixon was tried in absentia, who -- the only person in the courtroom who was there as the trusted advisor and counselor for Mr. Nixon, stands up in front of the jury in the opening and the closing and concedes guilt beyond a reasonable doubt. I would submit that upon doing that, the -- the whole adversarial process breaks down because it --
03-931 +++$+++ 10492 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why? When -- when his object is to spare this person's life. He knows the evidence is very strong. He wants, to the extent that he can, insulate the penalty phase from all that damning evidence that's coming out at the trial. So he wants the evidence to come out at the trial, but he doesn't want to be in a situation where the jury has heard the defendant resist the determination that he did it and then have to plead for his life after.
03-931 +++$+++ 10493 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The difficulty, again -- it comes back to the lack of consent. Had he had consent, it would be different.
03-931 +++$+++ 10494 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, my problem -- and I -- I'm not sure I understand your answer to it. In this case, in fact the client didn't say yes and he didn't say no. So if the -- if the lawyer is to assume, well, then since I don't have a positive, explicit yes, I will assume the answer is no, even though that is against the lawyer's best interest -- the -- the lawyer's best judgment, why is he an effective counsel if he assumes the answer is no?
03-931 +++$+++ 10495 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In -- in -- particularly in a capital case, what this Court and all courts would -- would want is a reliable record where there had been testing. When you have a situation where Mr. Nixon, as here, said nothing, so the -- so Mr. Corin didn't know whether there was consent or lack of consent, we would submit that what should have happened is, as I said -- suggested before, he shouldn't have -- he could have not contested certain things, but the admission on the -- what I submit is an admission and a plea of guilty without consent was where the problem was. He could have gone on --
03-931 +++$+++ 10496 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that -- but that's not a problem. According to the lower courts, that was a good strategy. I don't know why you want counsel, when -- when the client doesn't answer, to say, gee, I -- you know, I don't know whether he has approved or disapproved, I'm going to have to take the course that will probably get him executed because I -- I haven't received an answer. Why would you force that course on the -- on the lawyer? If the lawyer believes that the silence implies consent, as -- as silence usually does, why not let the lawyer do what's in the client's best interest?
03-931 +++$+++ 10497 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He had the alternative of -- of having an inquiry with Mr. Nixon, with the court determine whether or not --
03-931 +++$+++ 10498 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And Nixon -- okay. You have the inquiry and Nixon just stands there, the same, doesn't say a thing, assuming you could get him into the courtroom, you know, assuming he had put his clothes on so you could bring him into the courtroom. He just -- he just sits there.
03-931 +++$+++ 10499 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-931 +++$+++ 10500 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and you say, well, since we don't have an answer, we have to take the course that's going to get this guy executed. That doesn't seem to me to make much sense.
03-931 +++$+++ 10501 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would respectfully submit that given the nature of the opening and closing, the words that were used, in -- in that kind of a extreme situation, that is a decision that the client should make. This is not a decision that is a normal strategy decision that a lawyer would normally make, such as which witnesses to -- to call, aside from the defendant himself, the order of the witnesses, and -- and types of cross examination. This is a very --
03-931 +++$+++ 10502 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. No, but I don't think you're getting to -- at -- at what bothers us. Nobody is saying that the client should not make a decision. The problem is that the client won't make a decision, and the client acts as if he had made the decision to allow the lawyer to do what the lawyer proposes. This isn't a question of whether he should be heard or not, but what -- what to make of the behavior. And you're saying when -- when the behavior appears to be acquiescence from silence, you nonetheless -- the lawyer is, nonetheless, obligated to take the course which is coming closest to guaranteeing that he will receive the death penalty. And that's what's bothering us.
03-931 +++$+++ 10503 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- in -- in this situation, it's -- it's the nature of what was said and his lack of presence in the courtroom where there was no affirmative defense. And in -- in the record below where the Florida Supreme Court sent it down to determine whether or not there was consent, there was no acquiescence. Mr. Nixon simply did nothing. When -- when asked -- when Mr. Corin testified and was asked about whether he discussed the trial strategy and whether Mr. Nixon agreed or disagreed, Mr. Nixon simply did nothing. He -- he didn't acquiesce to the strategy.
03-931 +++$+++ 10504 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Tillinghast, can I ask you if you are familiar with the Loeb/Leopold trial many, many years ago that was conducted by Clarence Darrow? If you're not, I won't push you on it.
03-931 +++$+++ 10505 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Unfortunately, I'm not, Your Honor.
03-931 +++$+++ 10506 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because he -- he applied exactly this strategy and it was one of his great victories. In -- in fact, it's a long, long time ago. But that was the way Clarence Darrow sized up this very problem, and the -- and I think in that case they were very young clients that he had. They didn't -- they were not -- they did not expressly consent to what he did. But he saved their lives.
03-931 +++$+++ 10507 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if -- besides the -- what we believe was a fundamental -- what was a complete failure -- excuse me. Aside from the guilty plea, what we submit is a guilty plea, we believe that when these kinds of statements were made, Your Honor, without the consent, that the advocacy system that was envisioned in Cronic completely failed.
03-931 +++$+++ 10508 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you a question that I asked the other side? And that is, if we don't accept your argument, if we think when the client is silent, the lawyer must exercise his best judgment and not assume that the client would give an answer that would jeopardize the client's position, if that's the position that this Court adopts, what would you say is left over for remand? Is it simply that the Florida Supreme Court then takes the record as it is and determines under Strickland whether there was effective -- ineffective performance?
03-931 +++$+++ 10509 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- yes, Your Honor.
03-931 +++$+++ 10510 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That would be -- that would be all. So what do we do with, in the brief, all this information about things that the lawyer should have done by way of cross examination? That wasn't put in the record earlier --
03-931 +++$+++ 10511 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ When I say yes, the -- what would -- what would be left is an entire hearing on the -- on the Strickland claims and the motion to vacate. That -- that would be the remaining part of the case --
03-931 +++$+++ 10512 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why -- why do we need a hearing rather than an examination of the record? Tell me why.
03-931 +++$+++ 10513 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the -- the hearings below, when it was sent back down by the Florida Supreme Court, were only on the issue of whether or not there was consent to -- to the -- what the Florida Supreme Court deemed to be the functional equivalent of a guilty plea. There was not a hearing on the balance of the issues, and it was strictly limited to that.
03-931 +++$+++ 10514 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Hadn't there been a hearing on those issues on the way up?
03-931 +++$+++ 10515 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
03-931 +++$+++ 10516 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No?
03-931 +++$+++ 10517 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
03-931 +++$+++ 10518 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wasn't --
03-931 +++$+++ 10519 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was actually denied by Judge Hall. So the only thing that's -- that's occurred is the hearing strictly on whether or not there was -- was consent.
03-931 +++$+++ 10520 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why was it denied in the trial court? Why was the introduction of what the lawyer might have done --
03-931 +++$+++ 10521 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was -- it was because of the focus of the Florida Supreme Court on -- on whether or not there was a consent.
03-931 +++$+++ 10522 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. We're talking below.
03-931 +++$+++ 10523 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. We're talking about the trial court.
03-931 +++$+++ 10524 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We're talking below on the way up to the Florida Supreme Court. I assume that -- that he raised below the issue of inadequate performance of counsel and he had his opportunity to introduce whatever evidence he had on that subject on the way up to the Florida Supreme Court.
03-931 +++$+++ 10525 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He --
03-931 +++$+++ 10526 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't know why the Florida Supreme Court should be obliged to remand it in order to give him a second bite at the apple.
03-931 +++$+++ 10527 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was raised but -- but he was not given an opportunity for a hearing on that. JUSTICE
03-931 +++$+++ 10528 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, was he denied the opportunity?
03-931 +++$+++ 10529 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-931 +++$+++ 10530 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did the -- did the judge say, look, we're -- we're going to confine it strictly to this one issue?
03-931 +++$+++ 10531 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-931 +++$+++ 10532 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
03-931 +++$+++ 10533 +++$+++ TRUE +++$+++ MR. TILLINGHAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So, in conclusion, Your Honors, we submit that there are two -- two approaches to affirming the Florida Supreme Court. First is -- is that it was the functional equivalent of a guilty plea without consent. The second is that because of the nature of the statements, it was a complete failure of the advocacy process where the State's case was not tested in any way. In fact, as I mentioned, there were 35 witnesses. There were five very perfunctory questions asked such as what date was it and when did certain things occur. There was not the material testing of the record to determine the truth, which is what is -- is involved in the Sixth Amendment. And none of -- none of the challenges, that are pointed out in -- to the facts in our brief ever came out because that there was no testing. Simply we have an opening statement where counsel says the State will prove beyond a reasonable doubt that these events occurred. Then we have virtually no cross examination. We have no witnesses called by the State -- excuse me -- by -- by the defendant throughout the entire guilt phase of the trial. And in fact, at one point, the -- the trial judge stopped asking -- asking Mr. Corin if he wished to cross examine. And then we have the closing statement where Mr. Corin stated that the State has proven beyond a reasonable doubt that -- that he is -- Mr. Nixon was guilty of the crimes. And all the while during that guilt phase, Mr. Nixon was not present in the courtroom. So he had no ability to object to the opening or the closing statements because he wasn't here -- there to hear them. And further, as -- as the record indicates, there are issues of -- of Mr. Nixon's competency, that he's mentally retarded. His own lawyer referred to him as nuts. His own lawyer also referred to him as an ogre in his closing argument. These are the types of statements, we would submit, are -- even if they are not the functional equivalent of a guilty plea without consent, they -- they substantially and completely destroy the advocacy process. So there is no testing, and under Cronic, the Court should affirm also. Thank you.
03-931 +++$+++ 10534 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Tillinghast. Mr. Lemieux, you have about 4 minutes left.
03-931 +++$+++ 10536 +++$+++ FALSE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens. I'd like to point this Court to page 486 of the joint appendix where Mr. Corin is asked, do you feel in this case that you were put in a position that you had to make decisions because your client did nothing? And he said, yes, sir. There is ample evidence in the post trial proceedings that Mr. Corin wanted the help of his client. He did not want to be on the bridge of the ship alone, but Mr. Nixon abandoned the ship. And although he consulted with his client at least three times on this trial strategy, there was no input back that would have given him any reason to believe that Mr. Nixon did not want him to go forward to pursue a strategy that Mr. Corin, in his experience of 14 years as a lawyer, after having taken 52 depositions in this case, believed was in the best interest of his client. I just have a couple of points I'd like to make. There was a question that was asked about whether or not the -- the guilt phase and the penalty phase are distinct parts of a trial. This Court has addressed that in the Monj v. California case when it said that it's really one trial and that issues of guilt and innocence are often, in a capital trial, still being determined in the penalty phase of that matter. I'd also like to mention the point that the counsel made about Cronic. Counsel would ask, as the Florida Supreme Court did, to apply Cronic to this situation. There is a harmony that exists in this jurisprudence between Strickland and Cronic. Issues of trial performance and trial strategy are articulated and evaluated under Strickland's two-part standard. Questions of structural defects that infect the process with error are evaluated under Cronic. And that harmony works in the system. It allows for the independence and vitality of counsel to pursue strategies in their clients' best interests and it also allows when there are structural defects, for them to be taken care of with the presumption.
03-931 +++$+++ 10537 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you going to get to the point of whether there was, indeed, an opportunity for this defendant to introduce evidence about inadequate performance of counsel?
03-931 +++$+++ 10538 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I am, Your Honor, and I'll get to that right now. There was ample opportunity. There were three hearings. And in fact, there was disagreement between the sides as to whether or not there was this opportunity for a Strickland hearing. We don't have Strickland hearings --
03-931 +++$+++ 10539 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what did the judge -- what did judge say? Your brother said the judge said, no, I won't hear this.
03-931 +++$+++ 10540 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I would point the Court to pages 385 to 390 of the appendix where Judge Smith denies the Strickland claim. The defense has the burden of proving ineffective assistance of counsel. During the first hearing, there was an issue as to whether or not it was an ineffective counsel hearing because it was still on direct appeal. But certainly in hearings two and three, there was ample opportunity to put that evidence on the record, and they didn't take that opportunity. Now, they quibbled and said they didn't have notice and they didn't know that they were supposed to be here for a Strickland hearing. We disagree with that because there aren't Strickland hearings, there are not Cronic hearings.
03-931 +++$+++ 10541 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why should -- why should they put in Strickland evidence if they've won under Cronic?
03-931 +++$+++ 10542 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they had not yet won under Cronic, Your Honor. They were still making those arguments.
03-931 +++$+++ 10543 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought it was remanded for an issue -- for a hearing on the consent issue after --
03-931 +++$+++ 10544 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This is -- there was a hearing before that and a hearing after that.
03-931 +++$+++ 10545 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I see.
03-931 +++$+++ 10546 +++$+++ TRUE +++$+++ MR. LEMIEUX +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In conclusion, Your Honor, we believe that the harmony between these two lines of cases works, that the Florida Supreme Court got it wrong, and for that reason, we would request reversal. Thank you.
03-931 +++$+++ 10547 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you. The case is submitted.
03-932 +++$+++ 10551 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ The Court will now hear argument in Dura Pharmaceuticals against Broudo. We finally get to the arguments. (Laughter.)
03-932 +++$+++ 10553 +++$+++ FALSE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: This case presents two disparate views of what kind of loss is necessary to sustain a claim for securities fraud under the Reform Act's loss causation requirement. The minority view of artificial inflation articulated by the Ninth Circuit is illogical and equates loss with purchase, regardless of whether the investor has suffered any economic harm. An investor does not suffer any harm until some form of corrective disclosure occurs and the artificial inflation is removed from the stock. The two events must be related. There is no causal connection between the harm and the misrepresentation otherwise. The majority rule correctly requires a causal connection between the misrepresentation and a decline in value. The -- and the statute itself is expressed in terms of causation that a plaintiff prove that the act of the defendant caused the loss. When we look at the statute of the Reform Act and other provisions, we see supporting language. In section 21D of the Reform Act, we see under the provision that has been known as the look-back provision that the Congress discussed the loss in terms of trading price after a corrective disclosure. Similarly in section 105 of the Reform Act, although dealing with section 12 of the Securities Act, the Reform Act, in its one place where it actually spoke of loss causation and its definition, defined it in terms of depreciation in value. And the -- the depreciation in value of the security would be attributable to the fraud.
03-932 +++$+++ 10554 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can -- can you tell me if -- if we had not granted certiorari in the case and the Ninth Circuit's opinion became final, what would have happened on remand? What would have happened in the trial court?
03-932 +++$+++ 10555 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At the trial court, the --
03-932 +++$+++ 10556 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and wouldn't there have been a -- a motion to make the pleadings more specific and they would have then come up with a measure of damages, or am I wrong about that?
03-932 +++$+++ 10557 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the Ninth Circuit remanded for specific reasons on repleading, which Your Honor has articulated, and those would have occurred. The other issues relating to loss raise questions concerning whether some of the -- the claims might be time barred and whether or not those claims could be stated. So that would have raised a different issue. In addition, throughout the pleadings of this case -- we're now on the third complaint -- the -- the plaintiffs have not raised that issue and have not sought to plead causation consistent with the -- our view of the world.
03-932 +++$+++ 10558 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I mean, I -- I assume you say that the trial judge and -- and defense counsel and -- and the trial court would have had real problems with this opinion. What -- what were those problems --
03-932 +++$+++ 10559 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
03-932 +++$+++ 10560 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- insofar as the measure of loss is concerned?
03-932 +++$+++ 10561 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- the real problems that the trial court had and what we would continue to espouse with this opinion is that it doesn't link the loss with the misrepresentation. And in this case, the misrepresentation offered occurred 9 months after the price drop that is being sought. I think when you -- when you carve it all back and you look at what the real issue is, at the end of the day, it's -- it becomes an issue of what -- what damages does the plaintiffs' class seek.
03-932 +++$+++ 10562 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Under this opinion, how would -- under the Ninth Circuit's opinion, how would the jury have been instructed to come -- to calculate the loss? I assume you have a problem with that and I want to know what it is.
03-932 +++$+++ 10563 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the problem is we wouldn't have been able to -- to frame a clear jury instruction that would have indicated whether or not the loss that the jury should look at would be related to the disclosure about Albuterol Spiros, which would have occurred in the November time frame, or whether we would have had to step back to the February time frame and -- and the loss that was incurred then. And the issue would have not only related to the -- the damages instructions but would have related to the misrepresentation instruction. And the -- the problem that -- that we continue to have with the -- the case after the Ninth Circuit's opinion is where do you look for the misrepresentation and where do you look for the damage and how do you know that there is a loss under the statute. You're looking at a -- at a --
03-932 +++$+++ 10564 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What would have happened if the disclosure about Albuterol was made before the company announced revenue shortfalls?
03-932 +++$+++ 10565 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that would have been different. That would have been a disclosure prior to the -- to the drop, and there -- I would expect under pleading that the plaintiffs could have done, they could have tied the two of them together and argued that the cause of the loss was the combination of the two events in the marketplace.
03-932 +++$+++ 10566 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why is it difficult to figure out what the Ninth Circuit was thinking? I -- I found it -- am I right? I thought they said the -- the seller says we found gold. The stock sells for $60. They have loads of experts who say in the absence of that statement, which was a lie, we found gold, it would have sold for $10. The loss is $50. I mean, I take it that's their theory.
03-932 +++$+++ 10567 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that would be the theory under the Ninth Circuit.
03-932 +++$+++ 10568 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Now, what's wrong with that theory?
03-932 +++$+++ 10569 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the --
03-932 +++$+++ 10570 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's clear. I mean, it's certainly clear.
03-932 +++$+++ 10571 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The problem with -- with that theory is that Congress has told us that the misrepresentation has to have caused the loss and --
03-932 +++$+++ 10572 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. They say it caused the loss, $50.
03-932 +++$+++ 10573 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and what we would be looking for is evidence that -- that such a actual loss occurred in response to a corrective disclosure in the marketplace.
03-932 +++$+++ 10574 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, doesn't it depend on -- on what you -- what you consider to be the value of the stock. Until the disclosure of the fact that they didn't find gold is made, the stock is still worth $60, isn't it?
03-932 +++$+++ 10575 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it is.
03-932 +++$+++ 10576 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because everybody else thinks they found gold too. So you're still holding stock worth $60, if worth means its market value. Right?
03-932 +++$+++ 10577 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
03-932 +++$+++ 10578 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And we're dealing with a special rule that looks to market value. Right? You don't have to have the -- the representation made explicitly to the plaintiff. It's a representation that was made to the market at large which caused the market value of the stock. Right?
03-932 +++$+++ 10579 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
03-932 +++$+++ 10580 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So he paid $60, he got $60. There's no loss.
03-932 +++$+++ 10581 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And would have the ability to continue to sell that stock for $60 in the marketplace until such time as there was a corrective disclosure.
03-932 +++$+++ 10582 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is there any other problem? I'm trying to get a list of what the problems are with the simple theory. Now, I've heard one that you've ratified. (Laughter.)
03-932 +++$+++ 10583 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and is there any other?
03-932 +++$+++ 10584 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. The -- the other is -- is I think an issue of certainty as to the marketplace. Remember, we are operating on a fraud-on-the-market theory context here in this kind of action, and in that -- in that context, when there is a disclosure in the marketplace, you have certainty as to what the market actually valued the decline to be as opposed to speculation that there was in fact inflation at the -- at the time of purchase. The Ninth Circuit's purchase time rule in the -- in the fraud-on-the-market context doesn't necessarily identify the decline in the value of the stock which you can get from the marketplace, and that I think is just better -- a better indicator.
03-932 +++$+++ 10585 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, can we -- can they prove this? $60. $50 is wrong, is inflated because of the gold. It turns out that gold never existed and they knew it. The stock is not selling for $60 anymore. It's selling for $200. They found platinum. No one expected it. All right. They want to prove maybe it is selling for $200, but if we had found gold as well, it would have sold for $250. Can they do it?
03-932 +++$+++ 10586 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Congress has told us that we should look for loss, and that --
03-932 +++$+++ 10587 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's a loss. $250 versus $200.
03-932 +++$+++ 10588 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and that leads us to the -- the point that -- that whether the increase can actually be pled. But if there is a disclosure that indicates that the gold component was not part of the -- of the -- the discoveries, and the plaintiffs can indicate that there was an upward tick because of the platinum and a downward movement in the stock because of the disclosure about gold, then I think those two can be separated and pled accordingly.
03-932 +++$+++ 10589 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And both would be all right because what's the difference between not getting as much appreciation as you would have gotten if the correct information had been out there and getting less than you would have gotten. I mean, in both cases the shareholder is affected the same way. They didn't get as much in one case. So you're not distinguishing between those. I think you're agreeing that in both cases the -- the discovery of platinum is the shares go up, but they would have gone up much higher if there had been gold as well. That shareholder has a claim under your theory, doesn't she?
03-932 +++$+++ 10590 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that shareholder -- it would depend on what has happened in the marketplace. If there has not been a disclosure about the absence of gold, that stock would still reflect the -- the value of the expectation of gold.
03-932 +++$+++ 10591 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but I'm assuming that -- that there is, and so the stock goes up but not as much as it would have. But on the point of disclosure, there is a difference between your position and the Government's, and I really would like you to tell me if that's genuine or it's my misperception. Your view is there's the disclosure of the bad news, the lie, and the price drops. In the Government's presentation -- and I'm reading from page 19 -- the fraud can be revealed by means other than a corrective disclosure and a drop in the stock price may not be a necessary condition for establishing loss causation in every fraud on the marketplace.
03-932 +++$+++ 10592 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our position is we believe that a drop in the price is necessary to demonstrate the loss.
03-932 +++$+++ 10593 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the Government --
03-932 +++$+++ 10594 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They do.
03-932 +++$+++ 10595 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It doesn't matter in this case, does it? Is -- is that issue before us?
03-932 +++$+++ 10596 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this case --
03-932 +++$+++ 10597 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do we have to decide that issue here?
03-932 +++$+++ 10598 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't have to decide that issue for this case.
03-932 +++$+++ 10599 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And is it -- is it easy to prove that -- that the price of this now valuable stock because they found platinum would have been $40 higher had they found gold? I mean, the burden would be on the plaintiff to prove that -- would -- I mean, if we adopted that theory.
03-932 +++$+++ 10600 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The plaintiff has that burden --
03-932 +++$+++ 10601 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It would be very hard to prove, it seems to me.
03-932 +++$+++ 10602 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and at the pleading stage, I believe that they could be segregated and -- and an upward movement in the stock could be distinguished from a downward movement in the stock. But the downward movement in stock would be the focus from our standpoint.
03-932 +++$+++ 10603 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In -- in your view, is the plaintiff entitled to an expectancy measure of damage, or is it more the traditional tort measure which is out-of- pocket losses?
03-932 +++$+++ 10604 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't believe that they are entitled to any expectation damages. It would be an out-of-pocket loss calculation.
03-932 +++$+++ 10605 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is the -- is the respondents' position properly characterized as asking for expectancy damages or is that too simplistic a view?
03-932 +++$+++ 10606 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I think that it is perhaps inclusive of expectancy. It really depends on how you view that price inflation theory.
03-932 +++$+++ 10607 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think they'd be called reliance damages. You know, I used to teach contract law. We would call it reliance damages.
03-932 +++$+++ 10608 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And it gets back in our view to the transaction causation distinction in the securities cases that talk about the reliance transaction, price inflation that occurs at the front end.
03-932 +++$+++ 10609 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If that's so then -- then on the platinum/gold theory, you can't really recover what would have happened if there had been gold because it might be that the stock would have been worth $400 if there had been gold even though 15 years earlier when he only paid $50 for it, he's only out of pocket, at most, $50. But if there had been gold, because of the gold market in the world, it would have been a lot more valuable. And you're saying he can't do that? I don't know. Maybe that question isn't in the case, but that strikes me as a difficult question.
03-932 +++$+++ 10610 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Following your -- your suggestion about the price of gold, it would depend on where that -- that disclosure occurred in connection with the price of -- the price of gold, if that disclosure occurred, and if there was an economic loss that could be -- could be tied to it. The passage of time here is important only insofar as it allows for the corrective disclosure and a chance for the market to reflect an economic loss.
03-932 +++$+++ 10611 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Sullivan, you refer to the disclosure as being the key point and when you measure the -- the loss and so forth. What if the information leaks out and there's no specific one disclosure that does it all and the stock gradually declines over a period of six months?
03-932 +++$+++ 10612 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think --
03-932 +++$+++ 10613 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How would you handle that case?
03-932 +++$+++ 10614 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that a plaintiff would be able to handle that in -- in a pleading and they would have to identify the leaks and if there are several, identify each of them and identify them as --
03-932 +++$+++ 10615 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, maybe they don't know the leaks. The only thing they can prove is that there was a gross false statement at the time they bought the stock and they don't know what happened to the decline. Later on they find out that it gradually leaked out. Do they have to prove exactly how the information became public?
03-932 +++$+++ 10616 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The key is that they have to prove that the loss was connected to the misrepresentation and that the drop in --
03-932 +++$+++ 10617 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, they -- they wouldn't have to prove how it came out. They would just have to prove that the market knew the truth, no matter how the market learned the truth. I mean, if it was published in a -- in a column by some market reporter who doesn't disclose how he found out. So long as the market knows the truth, isn't that all they need?
03-932 +++$+++ 10618 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So I was distinguishing -- yes is the answer to your question. I was distinguishing a situation where the price just trickled down and no one knew until later. And the -- the question that Justice Scalia poses about the -- the leak coming out over time but it is the -- the fact that the market becomes aware of the reason for the misrepresentation, it is in fact appropriate. The -- the other point that I would like to make, in addition to the statutory scheme, is -- is this Court's decision in Basic v. Levinson creates a tension here, and I -- and I think a conflict that is very important to -- to discern. The -- Basic v. Levinson presents the fraud-on-the-market theory, and from that fraud-on-the-market theory we have a rebuttable presumption of reliance for transaction causation. The Ninth Circuit's view collapses the -- the Ninth -- the Ninth Circuit's view of transaction causation with loss causation and presents a conflict as it relates to that presumption. The presumption, which is based on a well- developed, efficient capital market that gets the information out quickly and is easily digestible -- that -- that presumption is at odds with the Reform Act's requirement that there be a burden of proof. If you collapse the transaction causation and the loss causation, you've got a head-on collision between the rebuttable presumption of reliance and the Congress' codification of the Loss Causation Act and the Reform Act. And we think, at the end of the day, the Ninth Circuit's decision really renders that conflict apparent and makes the act of Congress in the Reform Act one that was meaningless. The -- I think the legislative history is also supportive of our position so far as particularly the Senate report is very important in the -- in the phrase where it talks about the obligation of the plaintiff to prove that the loss in the value of the stock was caused by the section 10(b) violation and not by other factors. That is a critical component here of the analysis and I think very helpful from the standpoint of the legislative history in identifying what we have. Finally, I -- the last point I'd like to make is that the Reform Act from Congress was designed to and sought to establish uniform and fairly stringent pleading guidelines, and this was to address congressional concerns over frivolous suits. And Congress, in enacting the Reform Act, was not signaling any intention to relax the requirements of section 10(b), was -- rather, was enacting a very specific loss causation requirement. And historically there was a very clear and distinct body of law at the time, the Huddleston case, the Bastian case, and that was codified. And there was a very clear perception that Congress was acting and not collapsing the loss causation transaction rule into the loss -- the transaction causation into the loss causation, which I think creates this conflict. If there are no further questions, Justice Stevens, I'd like to reserve the balance of my time for rebuttal.
03-932 +++$+++ 10619 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You certainly may.
03-932 +++$+++ 10620 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
03-932 +++$+++ 10621 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Hungar.
03-932 +++$+++ 10623 +++$+++ FALSE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens, and may it please the Court: In a fraud-on-the-market case, a plaintiff who buys a security at an inflated price suffers no loss at the time of purchase because the market continues to value the security at the inflated price, and that's --
03-932 +++$+++ 10624 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you tell us how you differ with petitioner on what ought to happen here and why?
03-932 +++$+++ 10625 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, our view -- well, what ought to happen in this case is that the judgment of the court of appeals should be reversed because the court failed to require loss causation. In effect, what the court said is that transaction causation is sufficient. But what --
03-932 +++$+++ 10626 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You agree with the bottom line.
03-932 +++$+++ 10627 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-932 +++$+++ 10628 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, where do you disagree?
03-932 +++$+++ 10629 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'm not sure that I can accurately tell you petitioners' position, but I can tell you our position, which is that in a fraud-on-the-market case the plaintiff cannot -- has failed to plead loss causation unless the plaintiff pleads that the -- the inflation attributable to the misrepresentation or omission has been removed or reduced from the price of the stock through dissemination of corrective information of some sort to the market. That does not mean that the company must make an announcement or that there must be an admission of fraud or that there must be really any information, any -- any sort of formal disclosure. But if the information is disseminated to the market such that the market, in whole or in part, becomes aware of the truth and adjusts the price accordingly, that price adjustment is loss and the plaintiff has alleged loss causation in an amount to be proven at trial.
03-932 +++$+++ 10630 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, doesn't the general rule 8 governing complaints -- isn't that adequate? You have to plead under that every element of an affirmative case.
03-932 +++$+++ 10631 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. Exactly right, Your Honor.
03-932 +++$+++ 10632 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why is the Government proposing that you have to follow rule 9 not 8 or some other requirement?
03-932 +++$+++ 10633 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- I don't think the question -- we cited rule 9(b) in our brief because fraud must be pled with particularity and -- and that -- and that rule applies to all the, quote, circumstances constituting a fraud. But the Court doesn't need to address the question because even under rule 8, the plaintiff must allege all the elements of the cause of action.
03-932 +++$+++ 10634 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We don't have to get into that.
03-932 +++$+++ 10635 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. That's absolutely right.
03-932 +++$+++ 10636 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, Mr. Hungar, if you look at the forms of what's proper pleading under the Federal rules on causation, the sample pleadings say, for example, for money lent, the defendant owes the plaintiff for money lent. Period. Or for goods sold and delivered. Nothing more. Just alleged causation. Defendant -- plaintiff alleges I lost X amount and it was caused by defendant. I thought you pointed to the 9(b) rule because fraud must be pleaded with particularity, but causation does not, not under the rules and not under the statute.
03-932 +++$+++ 10637 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, as we said in our brief, we think 9(b) applies here. Obviously, this is a fraud case.
03-932 +++$+++ 10638 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that -- that's to the -- to the allegation of fraud, but not causation.
03-932 +++$+++ 10639 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Congress has made very clear that loss causation is an element of the cause of action. The elements must be pled. In a fraud case, they must be pled with particularity, but even -- even in a -- in a common law --
03-932 +++$+++ 10640 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It says -- but the fraud must be pleaded with particularity, not all the elements of a fraud claim.
03-932 +++$+++ 10641 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, with respect, Your Honor, we think circumstances -- it does not constitute fraud if there is no loss causation. At least it certainly doesn't constitute securities fraud under this statute, and if the complaint does not plead loss causation, it hasn't pled fraud. So we submit that --
03-932 +++$+++ 10642 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's not correct I don't think. I think there could be a completely fraudulent statement but no -- no damages as a result of it. There would still be fraud.
03-932 +++$+++ 10643 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but in a -- in a private action for securities fraud, loss causation is an element of the cause of action. It's not an element in every fraud case.
03-932 +++$+++ 10644 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's not an element of the fraud. It's an element of the cause -- cause of action.
03-932 +++$+++ 10645 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it may be a semantic question. That's --
03-932 +++$+++ 10646 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's what Justice Ginsburg's point --
03-932 +++$+++ 10647 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But there -- I mean, there are cases in the -- in the courts of appeals saying that -- that rule 9(b) applies to all the elements, and we're not aware of cases -- the -- the -- one of the amicus briefs cites cases which focus on the nature of the representation, and that's certainly where 9(b) issues are generally fought out because in a -- in a typical securities case, loss causation is not a difficult issue because the -- the bad news is -- is announced, the stock drops, and the plaintiff pleads loss causation as a matter of course. It -- it's -- it's not a difficult burden to satisfy in your run-of-the-mill securities case.
03-932 +++$+++ 10648 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well --
03-932 +++$+++ 10649 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In any event, the difference between getting the -- the complaint dismissed on the pleadings or having to wait for a -- a 12(b)(6) motion because as soon as you, you know, ask for the -- the proof of the elements of the cause of action, you're entitled to have, if -- if your analysis of the case is correct, you're entitled to have the drop in -- in the value of the stock shown.
03-932 +++$+++ 10650 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, as a -- as a practical matter, Your Honor, there's a huge difference in how these cases are litigated because it's the difference between spending millions of dollars on discovery, literally millions of dollars on discovery, or not. If -- if the plaintiff has failed to allege loss causation and for some reason feels unable to allege it, the -- the case is going to be dismissed. If the court doesn't require loss causation, as the Ninth Circuit did -- did here, that means the case is going to go to discovery and the defendant is going to have to either spend millions of dollars on their own lawyers or spend millions of dollars to settle even in a case that -- where the plaintiff might be unable to establish loss causation. That's why --
03-932 +++$+++ 10651 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is -- is the --
03-932 +++$+++ 10652 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Congress did what it did in 1995.
03-932 +++$+++ 10653 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is the reason -- is there a further reason that they've got to -- to plead loss causation? And that is, by reading (e)(2), in effect, as -- as making -- as -- as saying that if you were going to recover on a fraud-on-the-market theory, you in effect have -- have got to prove your loss in a certain way. And you're saying if you're going to -- if you're going to sue on a fraud-on-the-market theory, you've got to allege all the elements of fraud on the market. And if you allege all the elements of fraud on the market, you're going to allege exactly what you've just been saying is required. So it's not so the -- I -- I guess what I'm -- I'm getting at is maybe what -- maybe the nub of the answer is not necessarily that there's -- that there's fraud involved, but there is a fraud-on-the-market theory as the basis for the cause of action, and if that is the basis, it's got to be disclosed in the pleadings as an element.
03-932 +++$+++ 10654 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's -- that's a helpful way to look at it, Justice Souter, because it's -- in -- in a fraud-on-the-market case, by definition the plaintiff is alleging that there was an efficient national market and that is what makes the difference. If this were the -- you -- you buy a gold mine, like the -- the old common law cases that respondents cite, there's no efficient national market on which the -- the plaintiff can turn around and sell it at the same price until the information has been disclosed. But when it is an -- a national, active stock market, the market continues to reflect the inflation, and so -- so the plaintiff has not been injured, and the allegation that it was an efficient market and I bought it at an inflated price does not support an inference of -- of injury. And the -- and so because it is a fraud-on-the-market case, that's exactly right. The additional information must be pled in the complaint or else no injury has been -- been pled and the complaint must be dismissed.
03-932 +++$+++ 10655 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you -- do you take the position that the phrase in (e)(2), if the plaintiff -- I'm sorry. Let me find it.
03-932 +++$+++ 10656 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You're referring to section 12(b) or?
03-932 +++$+++ 10657 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. I'm trying to find a phrase in (e)(2). If the plaintiff seeks to establish damages by reference to the market price of a security, do you take that phrase as -- as referring to a fraud-on-the-market theory or as being broader than a fraud-on-the -- on-the-market theory.
03-932 +++$+++ 10658 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I suppose a plaintiff in --
03-932 +++$+++ 10659 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It certainly includes it. There's no question about that. Does --
03-932 +++$+++ 10660 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think what that encompasses is a -- is a case in which the plaintiff purchased the stock on the market -- on -- on a open market, which will typically be in practice a fraud-on-the-market case. I suppose a plaintiff, in an unusual case, might not allege -- might not choose to plead it as fraud-on-the-market case if they have some specific evidence or reliance that they view is stronger, but --
03-932 +++$+++ 10661 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If -- if it's not confined to fraud-on-the-market, then there's the argument on the other side that all -- all (2) is really doing is saying that if you are going to establish your damages by reference to market price, this is the way you've got to do it. You've got to go through this mean price analysis and so on. But they are saying we are not simply trying to establish our damages by reference to the market, and therefore we're not bound by -- and therefore, (e)(2), in effect, is -- is irrelevant. What -- what is your answer?
03-932 +++$+++ 10662 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think they -- they unquestionably are trying to establish their damages. The Ninth Circuit's damage theory or -- or injury theory establishes damages by reference to the market price.
03-932 +++$+++ 10663 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ To the -- to the purchase price.
03-932 +++$+++ 10664 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The plaintiffs alleged they purchased at the market price in this fraud-on-the-market case, and -- and the damages are the difference between what they paid at that market price and what it should have been. That is in our view an attempt to establish damages by reference.
03-932 +++$+++ 10665 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But they paid -- they paid whether it was a market price or not. I mean --
03-932 +++$+++ 10666 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they -- they alleged they purchased on the market. If -- if they weren't purchasing on the market --
03-932 +++$+++ 10667 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what they paid happens to be the market price, but -- but you can't really say that the Ninth Circuit was referring to the market price as part of its -- its damages. Its damages are what they paid. Whether that -- if they paid above market, it would be the same.
03-932 +++$+++ 10668 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in any event, we interpret it to refer to -- I mean, by definition they are, in a fraud-on-the-market case, alleging that they have purchased at the market price, and that's exactly what this statute would be encompassing. But beyond that, as -- as Mr. Sullivan identified, Congress' explanation of how it understood loss causation, when it -- when it enacted section 12(b) as part of the Reform Act, is entirely consistent with our position, and the common law is entirely consistent with our position. Thank you.
03-932 +++$+++ 10669 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Hungar. Mr. Coughlin.
03-932 +++$+++ 10671 +++$+++ FALSE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, may it please the Court: In answer to your question, Justice Kennedy, yes, that's what -- exactly what we would do. We would go back and replead, if we were required to do that, with more specificity. We don't think that (9)(b) applies in this situation because both the Eleventh and the Third Circuits have held that (9)(b) only applies to the circumstances constituting fraud. It has never been applied to materiality, loss causation, or damages.
03-932 +++$+++ 10672 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But surely they wanted to have a person be able to read a complaint and just understand what it's about in a securities fraud case. And I don't see how you could understand it unless you have in the complaint what your theory is. That's all. Nobody is asking for some facts. Is your theory that the loss took place at the time the person bought the stock because he overpaid $30? Is your theory that the stock went down and, because of that, he lost the money? Is your theory that the stock didn't go down but it would have gone up more? All they're asking is not for evidence, but a simple, clear explanation of the theory, and plead in the alternative if you want. But I mean, what's the problem? Why is that so hard to do?
03-932 +++$+++ 10673 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that's so hard to do. And you're right. We have to plead the theory, and -- and the theory is --
03-932 +++$+++ 10674 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And this case doesn't seem to do it. I looked through the entire complaint. I found exactly two paragraphs. I didn't. My law clerk did, frankly. (Laughter.)
03-932 +++$+++ 10675 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I told him to underline it. In paragraph 179, he found the word, and it caused damage. Okay? And in paragraph 177, it says the same. That's all he could find. And they were harmed. That's what it says.
03-932 +++$+++ 10676 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and you're right, Your Honor. There's not much in here. We plead the rises. There are approximately seven rises. We plead the purchases. We plead the big drop. Do we plead with specificity? The -- the losses as to AlSpiros? No. We could have done a better job. Under the Ninth Circuit, though, the law, as we pled it at the time, was that we have to plead an inflation and identify the causes. And that's what we did under Ninth Circuit law. If this Court were to decide that we had to do more, could we? Certainly. I mean, we have some of the information in there. We -- we tie AlSpiros to the sales force, which is an announcement on 2/24. You know, there's a lack of integrity in management.
03-932 +++$+++ 10677 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there's a -- but there -- there is a basic difference between, as was pointed out in the colloquy with Mr. Hungar -- one thing is the particularity of pleadings. Yes, you have to tell the details of the fraud. No, you don't have to tell the details of the loss. But you do have to have a theory on which you can recover, and if your theory is simply I bought at an inflated price and the law doesn't give you a claim for relief on that theory, then you're out the window. There's no discovery. There's nothing. You have to have, as Justice Souter pointed out, a viable theory of relief, and that's the difference between -- you say it's enough that the stock was selling for much more than it should have, and the other side said, no, that's not enough. You have to show that when the misrepresentation was corrected, the price dropped.
03-932 +++$+++ 10678 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I don't think it's enough to prove that we just paid an overinflated price. You cannot recover under Ninth Circuit law unless you not only prove that you paid an inflated price, but also that you prove that inflation came out. I think where we differ from the Government and petitioners is that it -- conceptually, at least with the Government, the right framework is to analyze did the inflation come out of the stock. And our quarrel here is how can the inflation come out of the stock? Does there have to be a corrective disclosure? And we say no. Time itself can take inflation out of the stock. Company-specific information is our biggest concern. If somebody walks a stock down, so to speak, they give out information lowering expectations because stock prices are based on cash flow. If they walk it down and say, hey, our -- we're going to have a revenue miss, but they don't announce their problems with AlSpiros at the time, or we're closing some factories, or we're taking a significant write-off, that stock drops. We believe that lowers inflation. I think a good case to take a look at to illustrate this is the Wool v. Tandem case out of the Ninth Circuit. In that case, Tandem was shipping to its own warehouses for 2 years, lying about its revenues. Wool went out and bought the stock. The stock was inflated. The Wall Street Journal, subsequent to that, reported we don't see how Tandem can continue to book these revenues, and then the company itself lowered expectations in one of their SEC filings saying, hey, lower than expected revenues coming up. The stock has dropped and now Wool sells. And now then after that, it's admitted that there was a fraud. Does -- and the stock barely drops hardly at all because the expectations in that stock have already been taken out.
03-932 +++$+++ 10679 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why? I don't understand. I mean, there would be even more expectation taken out after the fraud is announced. I mean, it's just like saying, you know, besides -- besides fact that our CEO just died, there's no gold there. Don't you think it would go down still further?
03-932 +++$+++ 10680 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Maybe and maybe not much. It depends on what's your cash in the bank. In this case, they had gone to the market and gotten $400 million of cash in the bank. So as the expectations were lowered with the Ceclor CD sales here not once but twice and the sales force inadequacy, before it was ever announced, they knew when the FDA was coming out. This is not the perfect situation. You're right. We could have just taken this out and --
03-932 +++$+++ 10681 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it sounds to me as if the things you're saying now are matters for proof, and I -- I think the wiggle room in the Government's position was it said it has to be disclosed to the market in some form or other. Well, if you're prepared to be broad and turn those over to the experts for the proof, you end up with your theory. The -- the inflation comes out and it comes out because they didn't get the earnings that they would have had or there may be many reasons.
03-932 +++$+++ 10682 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's no doubt, Your Honor. And if we have to do it at the pleading stage, it would be impossible.
03-932 +++$+++ 10683 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you just have to say at the pleading stage what your theory is.
03-932 +++$+++ 10684 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and I think we did that. We said the stock was inflated and there was damage, and we could have done a better job. Absolutely --
03-932 +++$+++ 10685 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought your theory was, at least as I read your brief, that your loss occurs at the moment of purchase, not at some later time, that when you bought the stock, the price was inflated and that's when you suffered your loss, on the day of the purchase, not at a later time.
03-932 +++$+++ 10686 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's absolutely correct. We believe that you suffer your loss and damages on the date you make the purchase. On the day --
03-932 +++$+++ 10687 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How can you reconcile that with your concession that if the person who -- who buys it at an inflated price turns around 2 days later and sells it at that same inflated price, he cannot bring suit? You would not allow recovery in that situation.
03-932 +++$+++ 10688 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Would not allow recovery in that --
03-932 +++$+++ 10689 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How -- how can you reconcile that --
03-932 +++$+++ 10690 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because those --
03-932 +++$+++ 10691 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- with the notion that the loss occurred at the time your purchased?
03-932 +++$+++ 10692 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, because those are -- what we're talking about are recoverable damages, and then there's a limitation from section 28. In other words, all the cause of action was satisfied on the date you overpay. The day you pay $100 for a stock that's worth $50, you're out the $50, the economy is out the $50 because it's not working -- it's working a fraudulent market. But you cannot recover, we would agree, until later. And the problem with analyzing that at the pleading stage is that is the -- that is expert analysis and discovery to connect up how -- how the losses came out and what you can recover. So I agree with you that you cannot recover that.
03-932 +++$+++ 10693 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They're saying there's no losses. I mean, that's -- it's inconsistent how the losses come out. You just told us the loss occurs, bang, when you buy it. You've gotten stock that really isn't worth what you paid for it, the notion of -- of worth as some -- you know, some objective thing rather than what -- what people are willing to pay.
03-932 +++$+++ 10694 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's --
03-932 +++$+++ 10695 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's your theory and it seems to me you're stuck with it. And if that theory is true, then it shouldn't matter that you later sell it to some other poor, unsuspecting individual for the same amount you bought it for.
03-932 +++$+++ 10696 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It doesn't matter for that plaintiff if they sell it to a poor -- somebody unexpected. For example, Fannie Mae just publicly, a couple of weeks ago, found out they bought $300 million worth of bonds, and they -- they found out about a fraud. They sold it and got fined by the Government because they heard about the fraud and sold it back into the market to recoup their losses or back through their broker. That's -- that's not okay. That's just one outrageous example. But somebody ends up with that stock that's inflated. Okay? And when you make the purchase. We agree we have to show the inflation come out before recovery, and -- and 90 percent of the time --
03-932 +++$+++ 10697 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You have to show what before recovery? You have to show?
03-932 +++$+++ 10698 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The inflation came out of the stock. In other words, if you pay $100 for a stock that's worth $50, it's inflated by $50. You don't recover that $50 until you show that $50 inflation came out of the stock. It can come out a number of ways. Let's say, for example, that somebody announced a competitive product. Well, that would take some of the inflation. That would be a market factor that would take some of the inflation out of your false statement that you had a product, the AlSpiros product. There are different ways inflation can come out besides a corrective disclosure.
03-932 +++$+++ 10699 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but if you've got to show the inflation, then you don't have a complete cause of action the day after you buy the stock if there's no loss. I mean, if you've got to show the -- the drop following the inflation, you don't have the complete cause of action if there's no drop the day after you buy the stock.
03-932 +++$+++ 10700 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's what they're saying.
03-932 +++$+++ 10701 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You can only recover --
03-932 +++$+++ 10702 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ To me your -- your --
03-932 +++$+++ 10703 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You can only recover if that inflation is taken out of the stock. Those are recoverable damages under Ninth Circuit law.
03-932 +++$+++ 10704 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but I -- I thought you were conceding that you -- you, in fact, do not have a -- a loss -- forget what you can recover -- that you don't have a loss until the inflation is followed by a drop. And if there's no drop at the -- at time of purchase plus 1 minute, then I don't see how there is even the element of a cause of action.
03-932 +++$+++ 10705 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I believe that the day you overpay something, just like in the Sigafus, just in the -- in the Bolles case, both of them had to do with gold mines --
03-932 +++$+++ 10706 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then you're talking about a cause of action without damages.
03-932 +++$+++ 10707 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You may not have recoverable damages. That is true.
03-932 +++$+++ 10708 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you have no damages, you have no cause -- I mean, on normal tort theory, you have no cause of action.
03-932 +++$+++ 10709 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand, and I think you have $50 worth of damages right there. And our concern is what you have to prove --
03-932 +++$+++ 10710 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's exactly what we're debating, I suppose, that very point. And -- and it's hard to justify, under this statute, finding a cause of action before there's any damage or if there isn't any. That's -- that's just very hard to understand.
03-932 +++$+++ 10711 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the most complex frauds, a -- a company is reporting revenue and earnings and their stock is, let's say, trading at $60 a share. Perhaps, because of fraud, it's overstated by $30. There are people in the market buying that stock at $60. That company starts to lower those expectations. This happens to be a real world example, Worldcom. They say we're going to miss revenues by $172 million. The stock starts dropping down. The inflation that was in that stock because of what they lied about starts coming out. Nobody knows there's fraud. Nobody understands that. In fact, it's not until that stock goes down at 80 cents that there was an admission of fraud.
03-932 +++$+++ 10712 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. But then you're not saying what I think Justice Scalia and I actually thought you were going to say which is that the minute he pays $60 for a stock that should be worth $30 but is $60 because of the lie, at that instant he suffered a loss. After listening to you, I now think you're saying -- but I'm not sure because I've heard you say things that are -- both -- I now think you're saying, no, he has not suffered a loss until later on when that $30 comes out of the price of the stock.
03-932 +++$+++ 10713 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that's worrying me too.
03-932 +++$+++ 10714 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It might come out in many different ways. It could come out because he announces I'm a liar.
03-932 +++$+++ 10715 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
03-932 +++$+++ 10716 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It could come out because he doesn't say anything but it sort of oozes out as earning reports come in, but it has to come out. Now, if you're saying that, then I find what you're saying consistent what I think Judge Posner said. And that's really what I'm interested in because I read what he said. It seemed to me right. Now --
03-932 +++$+++ 10717 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I certainly don't want to be disagreeing with Judge Posner. So I -- (Laughter.)
03-932 +++$+++ 10718 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The other --
03-932 +++$+++ 10719 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think -- I think you're -- I think you're agreeing with the petitioners. I think this -- this whole thing is a great misunderstanding. You -- you didn't -- (Laughter.)
03-932 +++$+++ 10720 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would agree with that, Your Honor. That's just -- we come to the same conclusion. There is no doubt about that. We come to the same conclusion. We have to prove that that inflation was in there when we prove it. And what we're talking about is what the burden is going to be on us at the pleading, and that's what we're concerned about.
03-932 +++$+++ 10721 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When we have this happy agreement and if you'll agree, you at least have to prove what you -- you have to plead what you intend to do, that is, you have to plead and there was a loss and this is my theory. I would like to know -- maybe we won't get beyond this, but in looking at this, I wondered now suppose that the stock goes up in value because of extraneous things. Can you recover because it would have been still higher?
03-932 +++$+++ 10722 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, I think the Government says that we can recover. We believe that we could recover. In other words, it didn't go up as high. I think it is -- as Justice Ginsburg said, it's the same difference. You lost $50 whether you lost it --
03-932 +++$+++ 10723 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What happens with the transaction causation? Because I think you'd probably say with your transaction causation in the -- in the case that the -- that the lie wasn't there, we wouldn't have bought the stock.
03-932 +++$+++ 10724 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-932 +++$+++ 10725 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. If you say that, they come along and say, okay, you wouldn't have bought the stock. I'll tell you, here's one bad thing happened. You lost your $30. But there were six good things that happened that you never thought of, and so the stocks were four times what it would have been and you'd never have those gains, just as you'd never have the losses. How does that factor?
03-932 +++$+++ 10726 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I dream to have those clients that gain four times, but since we don't usually have those and it is the drops that we're really talking about. The but-for transaction, when they say, hey, and -- and you buy it, and then it goes up, and then you learn about the fraud -- and I'm assuming that there's no drop but you can prove that the inflation was there and never came out, and can you prove that it should have gone to $250? You know? I'd have to prove that it went to $250. I agree with you. You know, I would agree with you that, you know, that I'd get an expert. Mr. Fischel would come in and testify that it should have been worth $250. And that's what, you know, would happen.
03-932 +++$+++ 10727 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there's a problem. Take the concrete facts of this case. The bad news about -- what is it? Albuterol?
03-932 +++$+++ 10728 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ AlSpiros.
03-932 +++$+++ 10729 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. That bad news didn't come out until 9 months after the end of the period that you identify for your class. You say the class is April 15th, '97 until February 24th, '98 purchases. The bad news doesn't come out until November of '98. So how could you possibly hook up your loss to the news that comes out later?
03-932 +++$+++ 10730 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If -- if we move to the proof stage, the people that purchased in the class period and sold before that announcement will not be able to recover that 20 cent drop at the end. People who purchased during the class period and held until all of the inflation was taken out by either final announcement from the FDA or when they announced they were abandoning the product would be able to recover from that inflation because all of the inflation was taken out as to AlSpiros.
03-932 +++$+++ 10731 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I thought that you were trying to pick up on the drop that seemed to be attributable to the other --
03-932 +++$+++ 10732 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Product, Ceclor?
03-932 +++$+++ 10733 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, and that's what -- well, there -- there are two frauds going on. The first one is discovered and the price drops substantially. And I thought you were trying to attribute that drop to the other product.
03-932 +++$+++ 10734 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There -- there are some things in that drop attributable to the other product. The sales force insufficiency, as well as management integrity, and there are some other things that weren't pleaded well. First of all, we were being conservative when we pled this and we pled the rises. We pled the insider sales. We pled the stock offerings. And all the statements were in that earlier period. They make the announcement. The stock starts down, 50 percent drop. It's walked down another 40 percent after that. Finally, you get the FDA announcement. And we certainly could have, and -- and maybe should have, taken that period out right then. The district court ended up having problems with it. The Ninth Circuit, in their questionings -- Judge Reinhardt had problems with the -- with that. And they gave us leave to replead, and we told them at that time if that's what we need to do, is tie that in also, if that's a loss that we intend to recover for or seek recovery for, then we'll do that and we'll go back to replead. If there are statute of limitations, that's a different issue, but we can plead that and could have.
03-932 +++$+++ 10735 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, one of the problems for me is the Ninth Circuit seems to think that it has a theory -- and it is the theory of your complaint -- that's different from, say, the Third Circuit. The Ninth Circuit says we recognize that the loss is you bought it at an inflated price, and the Ninth Circuit thinks that's different from a circuit that says you don't have any loss until somehow the bad news comes out and there's a drop in price as a result.
03-932 +++$+++ 10736 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I wish that the circuit said if the bad news came out, but the Koger case and -- and emergent out of the Second Circuit seem a little stronger and talk about almost the only way it can happen is with a corrective disclosure. And that's -- and that's a concern of ours. The Ninth Circuit law is pretty clear, is very clear actually, with the three cases, Blackie, Green, Judge Sneed in the Green v. Occidental case, and the Wool case, saying that the loss occurs at the time of purchase and overpayment, but recoverable damages --
03-932 +++$+++ 10737 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that may be clear but it may be clearly wrong. (Laughter.)
03-932 +++$+++ 10738 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- it -- it -- I understand that, Your Honor. I'm hoping that it's not clearly wrong. It's been on the books for 30 years. It was the law. It was the law on the books at the time that this was codified. There was no real or perceived conflict in the circuits at the time this was codified.
03-932 +++$+++ 10739 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I -- I thought that Judge Sneed recognized that if the stock was sold before any loss was incurred, even if there's been a misrepresentation, recovery should be denied.
03-932 +++$+++ 10740 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
03-932 +++$+++ 10741 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right.
03-932 +++$+++ 10742 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's absolutely correct.
03-932 +++$+++ 10743 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's not what the Ninth Circuit said in this case.
03-932 +++$+++ 10744 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Ninth Circuit didn't -- it cited -- it cited the Green v. Occidental opinion and the Blackie I believe.
03-932 +++$+++ 10745 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I'm submitting it cited it for the wrong conclusion.
03-932 +++$+++ 10746 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think it -- I think it --
03-932 +++$+++ 10747 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It cited -- I thought cited Knapp and -- which, in turn, cited Gray or -- or --
03-932 +++$+++ 10748 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are all the appendants. There's -- there's the three that started off. Knapp is the ATV case that we tried, and that was Judge Wallace and he relied on Gray. All of them are the same in that you have to -- to get by the pleading stage, that you have to plead the inflation and identify the causes for it. It's for proof and expert testimony and discovery to see if you have recoverable damages. If this Court were to say, no, we want identifiable drops, then we could do that. You know, if this Court were to say, listen, you've got to identify the drops, whether they -- whether you can connect them up to the fraud at this time, we want a full theory in the complaint -- and we can do that. If that's what the -- if that's what this Court directs us to do, then we'll do that and we'll put in all the losses, as well as the rises, as well as identifying the causes. You know, we'll do that in -- in the complaints. Sometimes what -- what we're saying and where we differ a little bit from the Government is it's hard to necessarily tie one of those innocuous disclosures that may be taking the inflation out back to the misrepresentation, and yet the stock is dropping and inflation is coming out. And that's what we're worried about. And there are other market forces that may take it out. So at the pleading stage, we're worried about the burden that almost puts us in -- in the position of having an expert come in, and we think that's for a later time for summary judgment or trial.
03-932 +++$+++ 10749 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, if you're worried about it, why aren't you worried about it later, as well as earlier? I mean, if that's going to be a problem, we should know it sooner rather than later, rather than -- you know. If you say that's terribly difficult to prove, we can hardly ever prove it, well, good. Then let's get rid of this -- rid of the case earlier.
03-932 +++$+++ 10750 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think I said --
03-932 +++$+++ 10751 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't -- I don't know why -- why it's desirable not to include that at the pleading stage.
03-932 +++$+++ 10752 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think I said that that was difficult or hard to prove. I said it was difficult or hard to plead. It is difficult and hard to plead, and -- and to tie that -- those inflationary things back up because you only get to recover -- you only get to recover for things that took the inflation out. I mean, if the stock drops -- let's say -- let's say the stock drops $60 or $50, and where he paid $60, it drops down to $10. But half of that -- half of that drop is unrelated to the fraud absolutely. Well, under a 10(b) cause of action, you don't get to recover for that market loss. We have to tie -- that's why Judge Sneed in Occidental -- in Green v. Occidental tied it right to the overpayment because Judge Sneed was worried about -- about the issuers being insurers for the market. In other words, if the stock -- if -- if a down market takes the stock way past what you paid over inflation, defendants should not be liable for the whole market loss as they might in a section 33 case. And that's really what the -- what the point is, to fix the loss. That's why Judge Sneed fixed the loss at the date of overpayment because Judge Sneed didn't want somebody coming in and saying, hey, you paid $60 for a stock that was really worth $30. When you brought suit, the stock was down at $10. Do you get to pay -- do you get $50? And Judge Sneed said no. You only get the overpayment on the date. Admittedly in up or down markets, what petitioners and the Government would suggest might move the damages up or down. In an up market -- you know, we're talking about something that was going down here. In an up market, you might get a bigger drop.
03-932 +++$+++ 10753 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's a --
03-932 +++$+++ 10754 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's why the term loss causation is used because under the statute it's -- it's a loss experienced by the plaintiff caused by the misrepresentation.
03-932 +++$+++ 10755 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice O'Connor, I -- I couldn't agree more, and that's why it goes to proof. It says this is a proof statute --
03-932 +++$+++ 10756 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
03-932 +++$+++ 10757 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No.
03-932 +++$+++ 10758 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree. It has to be alleged.
03-932 +++$+++ 10759 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The Government said you don't want unnecessary discovery. You have to put out pleadings that make clear what your theory is --
03-932 +++$+++ 10760 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's no doubt.
03-932 +++$+++ 10761 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- which yours don't do.
03-932 +++$+++ 10762 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They don't do well enough in this case.
03-932 +++$+++ 10763 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but what -- it seems to me that what Judge Sneed's theory boils down to is this. You cannot recover any loss except the loss that was caused by the fraud in question. In theory, that limit is established by the inflation at the time you purchase. So that is the limit of your recovery, but it does not follow from that that you have anything to recover for until you have your actual loss if you're pleading a -- a fraud-on-the-market theory. Isn't that fair to say?
03-932 +++$+++ 10764 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's fair to say.
03-932 +++$+++ 10765 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
03-932 +++$+++ 10766 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree with that, Your Honor. That is -- that's exactly what -- that's exactly what Judge Sneed did. And when we were talking about this statute here, it talks about us proving those -- that loss causation and tying it to the actual omissions. And it follows two sections that deal with pleading, material -- deal with particularized pleading as to falsity and as to scienter. And this statute says that if you don't plead one or two with the particularity required, then the complaint shall be dismissed. This section here --
03-932 +++$+++ 10767 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So -- so -- I'm not sure I understand what -- I'm -- I'm really coming to believe that this is a misunderstanding. It seems to me you're now saying that the loss does not occur when you make the purchase. It is just that that is the limit on your loss, the difference between what the stock would have cost you had the -- the absence of gold been known and what you actually paid.
03-932 +++$+++ 10768 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's the limit on your loss.
03-932 +++$+++ 10769 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that is not your loss. You're saying now the loss has to occur later when the price goes down and you're thereby harmed. Is that it?
03-932 +++$+++ 10770 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I apologize if I haven't been clear. The loss occurs at the time you purchase, but you cannot recover any portion of the loss until the inflation is taken out.
03-932 +++$+++ 10771 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the -- let's approach it a different way. On a fraud-on-the-market theory, there are two facts I think that can be assumed. Number one, there was no misrepresentation that was made peculiarly to you. The misrepresentation was to the broad market and was reflected in the broad market price.
03-932 +++$+++ 10772 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
03-932 +++$+++ 10773 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Number two, you as a purchaser do not know about the fraud until the market finds out about the fraud.
03-932 +++$+++ 10774 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
03-932 +++$+++ 10775 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If that is the case, then I don't see that it makes any sense at all to talk about your having a cause of action the day after you purchase before the market has found out and before the fraud is known. I mean, this -- this strikes me as an exercise in -- in an inconsistent theory.
03-932 +++$+++ 10776 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And here's why it matters, if I might, is that what petitioners and perhaps the Government would say is that you're right. You don't find out about the fraud until the whole market finds out. But before you find out about the fraud, there can be terrific drops in the stock, which we think we could prove are related to the fraud. Okay? Because we've had certainly a market loss to what we paid. The stock has dropped down. We don't know about fraud yet. All of a sudden, there's a disclosure of fraud, and we all learn about it.
03-932 +++$+++ 10777 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't know about it, but the market knows about it. That's -- that's why the stock has gone down.
03-932 +++$+++ 10778 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not necessarily, Your Honor. In other words, you can lower expectations by lower revenue numbers. Other market forces like a competitor coming out with a product. There are other things that can lower that. I'm sorry. And when it gets down there, the rule that we fear is being urged is that you only get the drop from either the admission of the fraud or the full disclosure of the fraud, and in the complex cases, the Enrons, the Worldcoms, the Healthsouths of the world, that didn't happen even until long after they were in bankruptcy. And if we only get the drop, the $3 drop at the end, or the 80 cents to 50 cents that the Government just returned $750 million to in the Worldcom, with every large institution in the country already out of that stock, well, then those that were sought to be protected by the Reform Act aren't. We have to be able to plead certainly -- and -- and we can -- the -- the market moving down. And then that's at the pleading stage, a plain 8(a) statement. And then we have to prove and tie that back up to get damages.
03-932 +++$+++ 10779 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought that that's what the Government was getting at in the passage I read earlier where they don't make it -- there must be a statement by the issuer of the correction. They have more leeway. But you -- the Ninth Circuit -- the litany that it's using, the -- the set of cases -- for example, plaintiffs were harmed when they paid more for the stock than it was worth. The -- the notion that's repeated, that your loss is established on the day you purchase the price, that's just wrong, and I think we would have to at a minimum say that.
03-932 +++$+++ 10780 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I don't agree with that, Your Honor. I agree with the Ninth Circuit that you suffer the loss of overpayment. You have something in your hand that's worth half as much as its true value.
03-932 +++$+++ 10781 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You -- you seem --
03-932 +++$+++ 10782 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Can you recover? Is it like the UCC where you've got to mitigate your damages? You cannot recover those damages even though you've suffered them. You have a stock certificate that's worth half of what it's worth even in an efficient market. And when the truth comes out, that's true, you'll be damaged, and if you sell it before then, you get no recovery.
03-932 +++$+++ 10783 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But aren't -- aren't you -- aren't you, in -- in effect, equating two different things: one, a loss that you suffer which you say occurs immediately upon purchase of the inflated stock; and on the other hand, a limit on the loss that is attributable to the fraud? Those are two different things. I understand the limit on the loss. I don't understand the -- the suffering of the loss in fact.
03-932 +++$+++ 10784 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think that that's an interesting statement because if the limit is -- let's say for a $100 stock that's worth $50 and you overpay by $50, let's say that's the limit of our loss, even if the stock --
03-932 +++$+++ 10785 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. -- Mr. Coughlin, I'm afraid you've had a full opportunity to explain this very difficult case. You'll have to -- your time is up.
03-932 +++$+++ 10786 +++$+++ TRUE +++$+++ MR. COUGHLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Stevens.
03-932 +++$+++ 10787 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Sullivan, you have 2 minutes.
03-932 +++$+++ 10789 +++$+++ FALSE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: One point I think I want to focus upon for the -- for the Court is -- is the comment in the Senate report which said that the damages had to be a result of the cause -- the -- the misrepresentation, not other factors. I think what we've just heard about, in terms of the decline in the market value, is -- is a look at a number of the other factors. And there are disclosures that are related to fraud and there are disclosures that are not related to fraud. And if there was a misrepresentation in the marketplace, that -- that is one thing. If a new competitor comes out with a new product, that's not --
03-932 +++$+++ 10790 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's the problem here? He -- I mean, well, you heard what he said. And it sounded to me that he agrees with you he has to prove that in fact the fraud not only led to the overpayment, but that also later on the client who bought the stock lost money because the market went down, and that default, which cost him the money, is caused by the fraud.
03-932 +++$+++ 10791 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and --
03-932 +++$+++ 10792 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ When it comes out, it just comes out in subtle ways as well as direct ways. Now, do you agree with that? If they -- if you do, it seems to me there's no case here.
03-932 +++$+++ 10793 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would -- I would agree with you and -- and I would just --
03-932 +++$+++ 10794 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where do you disagree?
03-932 +++$+++ 10795 +++$+++ TRUE +++$+++ MR. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I would just add -- I don't disagree. I would add that the cause is not by other factors because I think when we heard the discussion about the -- the reduction of inflation, we were hearing about factors other than that. I just want to close by saying the loss causation codification in the Reform Act was meaningful and was part of the Reform Act. And that really indicates that this is a pleading standard that we -- we -- we're dealing with, that the cause of action for a securities fraud has to be stated at the time. And that's consistent with what the Reform Act was trying to achieve which is to give the defendants a chance to respond and actually have the motion to dismiss serve as a meaningful screen in dealing with those cases. Thank you.
03-932 +++$+++ 10796 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Sullivan. The case is submitted.
03-9560 +++$+++ 10800 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument in Howell against Mississippi. Mr. Mitchell.
03-9560 +++$+++ 10802 +++$+++ FALSE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: The Court has directed us to address, in addition to the question raised in the petition for writ of certiorari, the following question. Was petitioner's Federal constitutional claim properly raised before the Mississippi Supreme Court for purposes of 28 United States Code, section 1257? Accordingly, we begin by addressing that question and answering it affirmatively. Here, Howell maintains, one, the standards for adjudicating State and Federal claims of this particular type are identical --
03-9560 +++$+++ 10803 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where --
03-9560 +++$+++ 10804 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- where they're labeled as such --
03-9560 +++$+++ 10805 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- where was that -- where was that maintained? Because I thought that below, all there were was this was a -- was it a lesser-included offense under State law, and I didn't see below any reference to the Federal Constitution.
03-9560 +++$+++ 10806 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, we believe that the rule in Beck establishes that State law must be viewed and State law is the determiner of whether an offense is a lesser-included offense, but Federal law, the Federal Constitution determines whether, as a matter of due process under the Fourteenth Amendment and Eighth Amendment concerns, whether an instruction must be given as a Federal constitutional matter.
03-9560 +++$+++ 10807 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And -- and the standards under Beck are different from the standards under the roughly comparable State rule, as I understand it, because under the State rule, the lesser offense need not be an included offense, in the technical sense; and number two, there need not be, in the absence of a further instruction, a -- a limitation to the jury to two choices, death or acquittal, so that unless one is very careful to raise the Federal standard, simply raising the State standard wouldn't do it.
03-9560 +++$+++ 10808 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Respectfully, Justice Souter, we would submit that Mississippi's own law says that it embraces the Beck standard and that Mississippi's own law --
03-9560 +++$+++ 10809 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Sure, it embraces it because it's broader, which means that if you raise -- if you -- if you make a claim under the State standard, you are not necessarily making a claim under the narrower, more restrictive Federal standard.
03-9560 +++$+++ 10810 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would respectfully submit that -- that in Mississippi, for example, as contrasted with the statutory scheme that was present in Hopkins, the Nebraska scheme, in the Mississippi scheme, Mississippi has held that simple murder is a lesser-included offense, and therefore, by definition that offense at least mirrors what is required under Beck. Now, the question of whether some other lesser --
03-9560 +++$+++ 10811 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about -- what about the -- the Beck condition that in the absence of the instruction, there must be a choice between -- the jury must be confined to a choice between death and acquittal?
03-9560 +++$+++ 10812 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In --
03-9560 +++$+++ 10813 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's -- that's not the same in the State's scheme, is it?
03-9560 +++$+++ 10814 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we believe that -- that it is the same. And in fact, the -- the case that the State cites, State v. Goodin, explains that. The representation of Goodin in the State's brief, as it appears in the respondent's brief at page 23, we contend is not faithfully representative of what the Court said in that case.
03-9560 +++$+++ 10815 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is -- is Goodin the case that -- that stands for the proposition that under -- under State law, the -- the jury has an -- an option to sentence for life, as -- as well as -- as to impose the death sentence?
03-9560 +++$+++ 10816 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Goodin is the case that the State cited for that purpose, but an analysis of what the Mississippi Supreme Court actually said at page 656 of the Southern Reporter, 787, is this. The Goodin jury did not face the dilemma of the Beck jury. Here, the jury's alternatives in the guilt phase were to convict Goodin of capital murder, simple murder, or to acquit him, which is the very purpose that the later cases -- and Beck itself explains. Schad, for example, explains that the reason for the Beck determination was that presenting only the option of convicting of a capital offense or acquitting was not constitutionally permissible.
03-9560 +++$+++ 10817 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So -- so I just want to make sure I know where we stand. You're saying that the assumption I was making, that under Mississippi law, in the absence of an instruction for a lesser offense, the jury has an option not only to acquit or to impose the death penalty, but an option of life with or without parole, that assumption is simply incorrect as a -- as a fact about Mississippi law.
03-9560 +++$+++ 10818 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I do not believe that is incorrect. I'm sorry, Your Honor. What I do believe is correct is that under Mississippi law, the jury, because of the bifurcated nature of the -- of the case, is given at least the preliminary reference or preliminary instruction that if there is a guilt verdict, then there will be a sentencing phase. But we submit that that is a distinction that this Court has not adopted, nor have other courts adopted because in this situation --
03-9560 +++$+++ 10819 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it takes you out of Beck, at least arguably, doesn't it? The -- the question is, have you raised something that is necessarily on all fours with Beck? And given this sentencing scheme, we can't say that simply raising a State claim necessarily raises the Beck claim. Isn't that true?
03-9560 +++$+++ 10820 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we would respectfully disagree with that position because of the analysis that the Court has undertaken, for example, in Hopkins and because of the analysis in Spaziano v. Florida. In those cases, they were presented with schemes in which the jury did not, of necessity, impose the death penalty. However, the jury was confronted with exactly the same position --
03-9560 +++$+++ 10821 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the consequence of the jury verdict was -- was the death penalty.
03-9560 +++$+++ 10822 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the consequence of the jury verdict may have been the death penalty. For example, in Spaziano, the -- the jury returned a verdict of guilty. The jury recommended life, but the judge imposed a sentence of death nevertheless. In the Hopkins case, the -- a three-judge panel then imposed the death penalty. Those -- those differences in sentencing schemes we do not believe separates the rationale of Beck which is the danger of affecting the jury verdict by being faced with the dilemma of either convicting of a capital offense or acquitting.
03-9560 +++$+++ 10823 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Mitchell, my -- my problem is even more fundamental than Justice Souter's. Conceding that the rule in Mississippi is exactly the same as the Federal rule in Beck, it doesn't seem to me that arguing Mississippi law, just because it happens to be the same as Federal law, amounts to raising a Federal question. Let's assume you have a -- a State law against wire-tapping. It is unlawful. And you -- you come in and you ask that the evidence be -- be excluded because it's contrary to the State law. Have you raised a -- a Federal -- a Federal question when all you cite is the State law, even though the effect under State law is the same as the Federal effect under the Fourth Amendment? It's not my understanding that you've raised a Federal question.
03-9560 +++$+++ 10824 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do not believe that I would have unless in that particular State, if its highest court had said, we embrace the same standard and we apply the same --
03-9560 +++$+++ 10825 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's all it takes for the New York State Supreme Court, for example, to have said, well, you know, our -- our wire-tap statute does the same thing as the Fourth Amendment does anyway? That's all it takes?
03-9560 +++$+++ 10826 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe --
03-9560 +++$+++ 10827 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thereafter, all you have to do is cite the New York State statute, and you've raised a Federal question.
03-9560 +++$+++ 10828 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, respectfully, Your Honor. However, if the State supreme court has adopted not only the same purpose, but the very language and has, in effect, said, our ruling in these cases is controlled by the same provision of law, whether a -- a decision of this Court, as in the Beck standard that we believe Mississippi has adopted, or if the court has articulated that the United States Constitution controls this particular provision.
03-9560 +++$+++ 10829 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I mean, if -- but the State standard always has to -- has to comply with the Federal requirement, doesn't it?
03-9560 +++$+++ 10830 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It always has to comply with the -- with the Federal requirement, but as Justice Souter pointed out, it may be broader, for example, in situations where there might be a right to a -- a jury instruction on a lesser-related offense. For --
03-9560 +++$+++ 10831 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So all it takes is a -- is a single decision by the State supreme court which says that our rule is no broader than the Federal constitutional requirement, and thereafter all you have to do is appeal to State law.
03-9560 +++$+++ 10832 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, while we believe that is minimally sufficient, we believe that thereafter it is important certainly to raise a claim which puts the court on notice of a --
03-9560 +++$+++ 10833 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Of course --
03-9560 +++$+++ 10834 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- claim.
03-9560 +++$+++ 10835 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- it does. Why -- why is that -- I mean, it seems to me counsel should stand up on his two feet and say, we're raising a Federal question. Why is that too much of an imposition when the statute requires that you raise a Federal question? Why do we have to go researching what the State supreme court said several years ago?
03-9560 +++$+++ 10836 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Where -- where it is generally understood, as in this case, that the two claims are interwoven, we believe the jurisdiction of this Court, as the Court has said, is plain.
03-9560 +++$+++ 10837 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So we have to figure out in every case whether the two claims are interwoven. Do you think -- do you think counsel for the defense isn't always going to say that they're interwoven?
03-9560 +++$+++ 10838 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think counsel for the defense would, indeed, contend that they were interwoven.
03-9560 +++$+++ 10839 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't think it's too much to ask counsel for the defense to say, we are raising a Federal question. And it solves the problem.
03-9560 +++$+++ 10840 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the difficulty in saying that we -- that we raise a Federal question is that suppose, in this instance, the trial counsel and appellate counsel, Mr. Lott, had said, the jury in this case is presented with an untenable position, convicting of a capital offense or acquitting. That's untenable and that raises a Federal question. Would the State then concede that that was a sufficient assertion of a Federal constitutional claim? Probably not, and that is because the State contends, just as the amicus brief contends, that this Court should adopt some inflexible rule that is extremely and extraordinarily difficult to apply in the context of, for example, a trial in Mississippi or North Carolina where counsel understands the lifeblood of the rule, the lifeblood even of the Constitution, but cannot at the moment recall the correct citation.
03-9560 +++$+++ 10841 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, my goodness, all it requires -- look, the problem is not a technical problem. It's a human problem. A judge is a human being. He gets the petition. There are 28 different issues. That's a lot of work. He goes down one, two, three, four. He gets to this issue, which is somewhere hidden among the 28, and what it says is, there should have been a lesser-included offense instruction and it cites three Mississippi cases, which in turn cite one other case, and that -- that other case says that the Mississippi rule has constitutional implications and cites Beck. Well, I mean, if that's supposed to be sufficient, I as a judge would have to, in every one of these cases that's cited in these 28 different issues, start looking up the other cases in Mississippi to see if there's some other place they cite some other case that says something about a Federal case. I mean, you see it's impossible.
03-9560 +++$+++ 10842 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and we would concede that but for the fact that in this particular instance, this particular rule is so clearly identifiable.
03-9560 +++$+++ 10843 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it isn't even because, after all, Beck talked about an instruction where the choice was either convict the person of murder, death penalty, or acquit him, and your case happens to involve an instruction which said to the jury, convict him or give him a life sentence or acquit him. So we don't even know if -- if Beck applies to your case. That's never been decided.
03-9560 +++$+++ 10844 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, we would respectfully submit suppose that the -- that Howell's counsel here had called this a Schad issue, for example, where a sentencing scheme somewhat similar to the present --
03-9560 +++$+++ 10845 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't even know -- I am so ignorant I don't even know if Schad is a Federal case or a State case.
03-9560 +++$+++ 10846 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and --
03-9560 +++$+++ 10847 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So I guess if he had, he should have said Fed or U.S. or whatever it is so that I'll know.
03-9560 +++$+++ 10848 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Or -- or suppose --
03-9560 +++$+++ 10849 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That doesn't seem like such a burden.
03-9560 +++$+++ 10850 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Or -- or --
03-9560 +++$+++ 10851 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I -- I wrote it. (Laughter.)
03-9560 +++$+++ 10852 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But Justice Souter --
03-9560 +++$+++ 10853 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Justice Souter was -- was a State court judge as well. (Laughter.)
03-9560 +++$+++ 10854 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Suppose, though, that this were not -- were not a -- a lesser-included instruction case. Suppose that what had happened in this case was that Howell had stood before the judge and said, I'm asking for you to appoint counsel, and the judge said, well, under the law of this State, I don't have to do that. But then Howell had responded, but the Supreme Court says that you do. Would that then be sufficient to raise --
03-9560 +++$+++ 10855 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Supreme Court? Yes, that's probably pretty clear it's Federal.
03-9560 +++$+++ 10856 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
03-9560 +++$+++ 10857 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Maybe he meant the State supreme court.
03-9560 +++$+++ 10858 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Maybe he meant the State supreme court.
03-9560 +++$+++ 10859 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. I'm saying you don't carry it to extremes. Don't be ridiculous about it, but that isn't an extreme case we have. We have which is the case we have, the State, and then three State cases, and then referring to one State case that says that Beck is -- is a constitutional implication citing Beck. I mean, I don't have to be extreme in order to say yours isn't that extreme example.
03-9560 +++$+++ 10860 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, but we would say -- we would say this, Your Honor, that the effort to federalize the claim as was done in the Mississippi Supreme Court was done in an effort to address the instructions as a whole, and --
03-9560 +++$+++ 10861 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it isn't even clear here that Beck would have been violated. As I understand it, in -- in Mississippi the jury could have given a sentence less than death despite the conviction. Isn't that right?
03-9560 +++$+++ 10862 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would concede that. Once the sentencing phase was reached.
03-9560 +++$+++ 10863 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. So I'm not sure if Beck even applies on its own terms.
03-9560 +++$+++ 10864 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be our contention, Your Honor, that -- that Spaziano v. Florida, that Schad, and the cases following Beck, Hopkins v. Nebraska even would, of necessity -- or Hopkins v. Reeves -- I'm sorry -- the Nebraska scheme -- would, of necessity, report to the court the continuing vitality of Beck even under these circumstances, but it -- it is a matter that we believe was at least made fairly and reasonably presented to the court.
03-9560 +++$+++ 10865 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Mitchell, what gives me pause is that there are Mississippi cases -- you no doubt know them -- where the court has seemed to think that the Federal issue under Beck was discrete from the State issue. So I forgot the name of them, but one of them was striking because it says this doesn't run afoul of Beck, and then it says, now we turn to Mississippi law on lesser-included offense. And it -- the -- the State supreme court treated those two as discrete. So when you just say lesser-included offense, why should the Court assume that you're talking about one rather than the other when the Mississippi Supreme Court itself has made it clear that it thinks they are discrete inquiries?
03-9560 +++$+++ 10866 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, we would respectfully submit that -- that the State's recitation of Goodin is not a faithful representation of what happened in Goodin. In Goodin, he was -- the defendant was given the lesser-included simple murder instruction, which Howell seeks. It was a robbery case. The report of the case appears at 787 So.2d, beginning, I believe it's, 639. At pages 655 and 656, the court addresses the Beck issue, and it says there that because the jury's alternative in the guilt phase was either to convict of capital murder or simple murder or to acquit, then and in that circumstance, the Beck -- that Beck was not violated. It then says we must look to our practice to determine whether a manslaughter instruction should be given. And it is for that reason that we respectfully submit that Goodin does not attempt to distinguish Beck, but in fact squarely addresses a Beck claim, although -- and we candidly admit -- Goodin's counsel did cite Beck itself to the Mississippi court. Nevertheless, the claim was phrased in precisely the same manner in which Mr. Howell's counsel expressed the same claim. These claims, therefore, we would respectfully contend, are not virtually identical but are in fact identical. But even if there were some minor variations, some deviations, as this Court indicated would appear from time to time, we contend that clearly that such identity, such virtual identity is sufficient to raise the issue. In this case, Howell's trial and appellate counsel raised two issues with regard to the jury instructions. Those two issues themselves were interrelated. Those two issues were a whole. Those issues related to whether or not there was sufficient evidence to convict of robbery and whether or not -- or attempted robbery rather, and whether or not there was a basis to give a lesser-included instruction. The cases which he cites are State cases related to the necessity of giving lesser-included instructions where there's an attempted robbery and simple murder is, therefore, included in that offense. He also, at the outset of his contentions with regard to jury instructions, says that under the Eighth and Fourteenth Amendments, these jury instructions -- and we contend that they must be considered as a whole. These jury instructions violate his rights under the Eighth and Fourteenth Amendments. It is our position that this is sufficient -- while not a cognate of that, is sufficient to at least be a corresponding claim, a substantially identical claim to Beck, and one which entitles the defendant as a matter of due process and as a matter of Eighth Amendment consideration and concern, to an instruction. The difficulty that we face in a circumstance such as this where the instruction is not given is that the jury's function, while not always reviewable, but which is always entitled to protection, may be called into question and the quality of the verdict impeached, in effect, by the failure to have the third option. In essence, it is our contention that where a defendant uses the very words that this Court has used to describe the constitutional claim, where it uses the very words that the State supreme court has used --
03-9560 +++$+++ 10867 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask you this question, Mr. Mitchell? Supposing the -- there are alternative lesser-included offenses that might be urged by the defendant as to -- to get an instruction on, and he asks for the wrong one. In other words, the question -- there is a question here about exactly what is the lesser-included offense. It seems to me that if he tried to kill -- if he killed the driver of the vehicle, there may well have been some kind of crime. But maybe you ask for a lesser-included offense of, say, simple murder and the facts don't fit simple murder, but they might fit manslaughter or something else. Would your request for -- for a simple murder, lesser-included offense instruction be sufficient if you should really have asked for a different lesser-included offense instruction?
03-9560 +++$+++ 10868 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would respectfully submit that -- that even the Mississippi court has addressed that situation in -- in a case cited in -- in the briefs in Mease. And there, the defendant asked five times for instructions, lesser-included offense instructions, and never actually got them right. The court said that that is not a basis upon which to deny the instruction and then, citing Beck, said that where there is a proper lesser-included offense, the fact that the -- that the defendant does not request the proper instruction still rises to the constitutional proportions that a Beck claim does.
03-9560 +++$+++ 10869 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is -- is that the case here too? One of the things that's neither here nor there I guess, but one of the things that perplexed me was that I would have thought that the lesser-included offense on -- on the theory that the -- that he didn't intend to kill, he was sprayed with mace, got mad, pulled out a gun, and shot and so on -- I would have thought the lesser-included offense was a heat of passion kind of killing. But as -- as I read the -- the statement of -- of simple murder, which requires a deliberate act, that didn't sound like it. And I -- I read negligent homicide, and that didn't sound like heat of passion. But is -- is it your point here, if -- if we get into it, that as long as you asked for some lesser-includeds, under Mississippi law that raises the issue adequately?
03-9560 +++$+++ 10870 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We -- we believe that it does raise it adequately. We believe that it --
03-9560 +++$+++ 10871 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But then what would be a lesser-included offense? Because if it's not simple murder and it's not manslaughter, you haven't suggested a third that it might be. I thought your whole position was that this simple murder was right and the --
03-9560 +++$+++ 10872 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We do contend that it was right, Your Honor.
03-9560 +++$+++ 10873 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- and the judge was obliged to give it. So why -- in view of what Justice Souter just said about simple murder requiring a deliberate design, where was the deliberate design here?
03-9560 +++$+++ 10874 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We believe that -- that there are, in effect, two forms of simple murder because of the structure of -- and in fact, the Mississippi Supreme Court has said this -- because of the structure of the Mississippi murder definitions. They are contained in a number of separate sections, but the most important of which is that a killing, not done in certain enumerated felonies, such as robbery or attempt to rob, would constitute simple murder. We believe that the simple murder instruction would have been correct. But even if it were not, we would respectfully submit that that is sufficient to raise the question.
03-9560 +++$+++ 10875 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But what would be if it were not? What would be the lesser-included offense?
03-9560 +++$+++ 10876 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Arguably it would be manslaughter. For example, the Mease case, which the State cites and to which I made reference, was a case in which capital murder was not robbery murder as in this case, but the killing of a police officer. In Mease, there was an altercation between the sheriff and Mease. During that altercation, Mease was struck on the head by another deputy. His contention was that the gun fired, which he was holding next to the sheriff's neck. The gun fired by reaction for two reasons, one that he was in a fight and, secondly, that he was struck. The Mease court said that that was a proper basis to instruct on manslaughter, the fact that he had pulled the gun and was using it during the course of the fight. Now, while I find that case difficult to parse, we believe that that certainly could have been an argument that could have been raised and that, albeit it was not, it could have been a proper instruction to have been given. If there are no further questions, I'd like to reserve the remainder of my time.
03-9560 +++$+++ 10877 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You may. General Hood.
03-9560 +++$+++ 10879 +++$+++ FALSE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, may it please the Court: I'd like to make the point, as far as jurisdiction goes, that -- that the defendant has failed to make a Federal claim and he is required under Webb v. Webb. If the Mississippi Supreme Court -- if the lower court does not address the issue, then it is assumed that it was not properly raised. As to the issue of Beck, there is no Beck violation. Actually Mississippi finally -- we've gotten in one instance, we've -- we've become first in -- in this regard. In Jackson v. State in 1976, our Supreme Court -- which was cited in a footnote 10, I believe, in -- in Beck. In the Jackson case, Mississippi said -- we had the same statute, pretty much, that Alabama had that restricted a lesser-included offense instruction. Mississippi said, number one, you cannot restrict that lesser-included offense instruction if it is supported by the facts, and number two, in the Jackson case, the court held that it had to be bifurcation, which was the problem, the impact on the guilt phase. And -- and so I would submit to the Court that there is no impact in Mississippi in this case on the guilt phase, nothing to influence the jurors' decision, and that was the inherent problem that the Court recognized in Beck. Number two, Mississippi allows a life sentence, which also distinguishes Beck. It -- it allows the jury, in a separate, bifurcated hearing, to determine whether or not the defendant should receive life or the death penalty. And then thirdly, in Mississippi, we have a broader standard than the Federal standard. If it's any lesser offense in Mississippi, then the defendant is entitled to it if it's supported by the facts of the case. So we have a broader standard that gives the defendant an easier opportunity to meet that standard. And thirdly --
03-9560 +++$+++ 10880 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't get your point. It doesn't have to be a -- a lesser-included offense --
03-9560 +++$+++ 10881 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, yes, sir --
03-9560 +++$+++ 10882 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- so long as it's a lesser offense?
03-9560 +++$+++ 10883 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Justice Scalia. It just has to be a lesser offense. And I would submit to the Court that if we are analyzing a Federal constitutional issue, then perhaps we -- we should follow Federal constitutional standards, which was stated -- the strict elements test, in other words, because under -- under Federal law, it has to be, well, number one, a lesser-included offense, a true lesser-included offense, and under the Schmoke case, this Court has stated that that is in fact applying the strict elements --
03-9560 +++$+++ 10884 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I interrupt with a question there, General Cox?
03-9560 +++$+++ 10885 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir.
03-9560 +++$+++ 10886 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In this case, if the man approached the victim in the car and shot him and killed him, as I understand it, and the theory was an attempted robbery and therefore the -- the capital offense. Now, are you telling me that if they failed to prove there was an attempted robbery, it was not an offense at all?
03-9560 +++$+++ 10887 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, sir. I -- I'm not stating that. It would -- it would be an offense, but based upon these facts.
03-9560 +++$+++ 10888 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Then why wasn't he entitled to an instruction on whatever offense it was?
03-9560 +++$+++ 10889 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the -- the facts in this case show that there was no other reason for him to approach that vehicle than to rob that individual. There was no premeditated intent.
03-9560 +++$+++ 10890 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But his theory was if there was a failure of proof on the attempted robbery, that all was left was a -- a killing for some other reason. And if there was a killing -- if there was a failure of proof on attempted robbery, would he not then have been entitled to a -- a lesser offense instruction?
03-9560 +++$+++ 10891 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir, Justice Stevens.
03-9560 +++$+++ 10892 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So what your theory is then --
03-9560 +++$+++ 10893 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It depends on --
03-9560 +++$+++ 10894 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- if I understand it correctly, is the proof that there was an attempted robbery is so convincing that no other theory was available.
03-9560 +++$+++ 10895 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's the facts that we had in this case. And your analysis there again will -- will hinge on whether or not -- in Mississippi admittedly murder would be a lesser-included offense if the facts support it and also manslaughter. But now, if you apply the Federal standard --
03-9560 +++$+++ 10896 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But I still don't understand your answer to Justice Stevens' question. I had the -- I had the same problem. The evidence of robbery here was circumstantial, strong, but still circumstantial based on his earlier statements that he was going to make a sting, I think he said, and then the witness saw him outside the window and -- and he stopped the car. And I take it, he didn't take the stand and say, I stopped the car to ask for directions or something. But still it's -- it's -- that's certainly a jury issue as to whether there was a robbery.
03-9560 +++$+++ 10897 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir, it is. It's -- the -- the facts were in this case, though, all night long they had ridden around looking for someone to rob. They made a statement in Tupelo --
03-9560 +++$+++ 10898 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But -- but would the State of Mississippi take the position that if there was no robbery, there was no crime in this case --
03-9560 +++$+++ 10899 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, sir.
03-9560 +++$+++ 10900 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- when a man is shot and killed?
03-9560 +++$+++ 10901 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ On the facts that we had, if -- if you analyze it under the Federal standard -- and I would submit to the Court that we should apply --
03-9560 +++$+++ 10902 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. I'm talking about just Mississippi law. You're the prosecutor saying, we -- we may not get robbery here. The -- is that the only thing they charge is robbery or let the man go after he shoots and kills the person he doesn't even know?
03-9560 +++$+++ 10903 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't know -- he didn't know this defendant.
03-9560 +++$+++ 10904 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, no, but the question is suppose we have a different case, not this case. Everything is the same but for the fact we know for sure it wasn't a robbery. That's all. Now, in that different case, is it a crime under the law of Mississippi what happened?
03-9560 +++$+++ 10905 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, first --
03-9560 +++$+++ 10906 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I've told you everything about the case. It's just like this one except we know it isn't a robbery. Now, is it a crime? The answer we think is absolutely it's a crime. And my next question is which crime.
03-9560 +++$+++ 10907 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Which crime.
03-9560 +++$+++ 10908 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay?
03-9560 +++$+++ 10909 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir. You're correct. First, we wouldn't have -- have charged --
03-9560 +++$+++ 10910 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So which crime is it?
03-9560 +++$+++ 10911 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Based upon the facts that we had -- and he didn't know this individual. He had no premeditated intent to kill him.
03-9560 +++$+++ 10912 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right.
03-9560 +++$+++ 10913 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would not be murder.
03-9560 +++$+++ 10914 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. So it would be something. What would it be?
03-9560 +++$+++ 10915 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could arguably be a felony murder, which is a separate statute in Mississippi.
03-9560 +++$+++ 10916 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. So then maybe there's a felony --
03-9560 +++$+++ 10917 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He meant to commit another --
03-9560 +++$+++ 10918 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is anything else possible?
03-9560 +++$+++ 10919 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- another crime.
03-9560 +++$+++ 10920 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Manslaughter?
03-9560 +++$+++ 10921 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-9560 +++$+++ 10922 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I mean, it's odd that in Mississippi people just go around shooting each other all the time and there's no statute that seems to cover it. (Laughter.)
03-9560 +++$+++ 10923 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And if you don't know someone, then it's not murder? (Laughter.)
03-9560 +++$+++ 10924 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't understand.
03-9560 +++$+++ 10925 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, yes, sir. That -- that happens all the time.
03-9560 +++$+++ 10926 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. So there must be --
03-9560 +++$+++ 10927 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, of course, it's premeditation. If there were evidence, say, for example --
03-9560 +++$+++ 10928 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, no, no. They just do it -- who knows why. All we know about them is they went and killed somebody. Now, I think it's still a crime to kill people in, I thought, all 50 States, but -- but -- (Laughter.)
03-9560 +++$+++ 10929 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So I'm going to say which --
03-9560 +++$+++ 10930 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Let's make it -- if we make it concrete, let's take all that we have in this case is the testimony that Rice gave. Rice was the one who observed this murder, and he didn't have any statements about the defendant needing money to pay off his debt. You have only that snapshot scene of what the witness saw from the window, which doesn't establish any robbery at all because Rice said he didn't observe any robbery going on. All he observed was the killing. Now, if that's all you have in this case, a person was killed, an eyewitness to the shooting, the eyewitness testifies exactly as Mr. Rice did in this case, what crime would you indict for?
03-9560 +++$+++ 10931 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, to -- to -- first of all, we wouldn't have indicted for capital murder if we didn't have that evidence. We wouldn't be discussing the Beck issue. It wouldn't be a lesser-included offense question. We'd strictly be focusing on those facts, number one, that particular witness Rice was on the other side of the vehicle. You had separate testimony from Lipsey, the co-defendant who was in the vehicle and could -- behind where -- where --
03-9560 +++$+++ 10932 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but I'm giving you a hypothetical where --
03-9560 +++$+++ 10933 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ General Scott, I suggest you try to answer her question.
03-9560 +++$+++ 10934 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes. All you have --
03-9560 +++$+++ 10935 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The question is that's -- one witness is all you had. Would there be a crime against the law of Mississippi and if so, what would it be?
03-9560 +++$+++ 10936 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would be manslaughter, I suppose, Your Honor. That's not the facts in this case and -- and I apologize --
03-9560 +++$+++ 10937 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay. So what -- but -- but the line of reasoning is -- is -- now, there is a crime. Let's call it X. All right? And what you're -- what counsel says is it's the law of Mississippi that if there is a crime and it's X and it's lesser, you've got to charge it if somebody just says, please give me a lesser-included instruction, even if he's all mixed up as to what the right crime is. I don't know if that's the law of Mississippi. From reading the Mississippi Supreme Court opinion, I would say it wasn't the law of Mississippi because they say you're not supposed to charge people in ways that would mix them up. But, I mean, anyway -- but that's the argument. So what's the response?
03-9560 +++$+++ 10938 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There --
03-9560 +++$+++ 10939 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And don't take the one I just suggested because I'm not sure that's right. What is your response?
03-9560 +++$+++ 10940 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are 12 separate manslaughter sections in the Mississippi code, not in one section. Our murder section lists -- lists four just in one section. There are 12 different ones. We have one if you drive a nail in a tree and -- and you're -- you're cutting lumber and it kills someone, that's a manslaughter still. This defendant only requested a culpable negligence manslaughter instruction. There was no evidence to -- to support that. The only potentially -- I -- I could even make a stretch -- would be a heat of passion. He did not request that -- request instruction, and --
03-9560 +++$+++ 10941 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, is that fatal to him? I mean, that's what we're -- one of the things we're trying to get at I guess. Is -- is that fatal to him?
03-9560 +++$+++ 10942 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ His failure to request --
03-9560 +++$+++ 10943 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Under Mississippi law, would he be entitled to a lesser offense instruction if he asked for the wrong lesser offense? I.e., in this case, if he failed to ask for heat of passion, would he still be entitled to a correct lesser instruction, even when he didn't ask for it?
03-9560 +++$+++ 10944 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Perhaps the judge should correct within a particular statute, but not go look at all 12 statutes that he's under -- which -- which would classify as murder.
03-9560 +++$+++ 10945 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So you say he's not entitled then.
03-9560 +++$+++ 10946 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir.
03-9560 +++$+++ 10947 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The -- the only thing he would be entitled to, if he were correct, is the lesser instruction that he asked for, and if he's not correct, there's no error.
03-9560 +++$+++ 10948 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir. He would have had to -- to have specifically requested heat of passion. But there again, I don't believe that he put on evidence to support even --
03-9560 +++$+++ 10949 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. We're just trying to get at what Mississippi law is, and I think you've --
03-9560 +++$+++ 10950 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And under your view of the facts, as I understand it, he would have been entitled to a manslaughter instruction.
03-9560 +++$+++ 10951 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't -- that's only a stretch to answer -- answer Justice Breyer's question.
03-9560 +++$+++ 10952 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, surely -- surely, if one walks up to a car and shoots the driver dead, that's must be a crime.
03-9560 +++$+++ 10953 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir. It -- it would have to be classified as --
03-9560 +++$+++ 10954 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And the question is we don't know exactly which of your several statutory provisions it violated, but if it violated one of them, I don't understand. And if he's correct -- maybe he misrepresents the law. He tells us, as a matter of State law, if he asked for the wrong lesser-included instruction, but there is a correct one, the judge has a duty to give the correct instruction. That's what -- what the counsel has told us. And if that's right, I don't understand why he wasn't entitled to some lesser-included offense instruction.
03-9560 +++$+++ 10955 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I believe what he was addressing was language within a particular statute, meaning a lesser-included offense of -- of murder or how you styled it, whether it be depraved heart murder or -- or felony murder, first degree murder.
03-9560 +++$+++ 10956 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So it's -- it's your view he must ask for the correct lesser-included offense instruction.
03-9560 +++$+++ 10957 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir. And -- and there again, I'd like for the Court to -- to understand my statement that we should construe this on what -- how the Federal law -- how you -- how the Federal courts construe it, not use Mississippi's lesser standard, but let's -- let's construe it on whether or not, first, it is a true lesser-included offense because that's -- that's what the Federal standard is, and that's what we followed in Nebraska. And secondly, if it's a true lesser-included offense, we have to use the analysis of the Federal courts which says that it has to use the strict elements test. Well, murder would not be a lesser-included offense under Federal law because under the Mississippi capital murder statute can be with or without deliberate design. Therefore, there is no deliberate design. It would not be a lesser-included offense of murder. Manslaughter would not be a lesser-included offense under that same elements test because it requires the additional element of sudden provocation or heat of passion. So I would submit to the Court, if we apply what's fair under Federal law, what the floor is under Federal law, we should use the Federal analysis and not Mississippi --
03-9560 +++$+++ 10958 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But is sudden provocation or heat of passion part of the prosecution's burden or a part of his -- one of the -- is it a matter of defense?
03-9560 +++$+++ 10959 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would be a matter of the defense raising sudden provocation. And I don't believe that they -- they certainly didn't put on anything about culpable negligence. For example, maybe he was spinning the gun in his hand for culpable negligence. They didn't put on anything about deliberate design because he didn't want to testify. His defense was alibi and so he didn't take the stand and say, I intended to kill this person, therefore, give me the murder instruction. He's got to put on evidence to support it, and I don't believe he put on sufficient evidence for either of those. And -- and I was the district attorney who tried this case, so factually I -- I remember the -- the -- my argument was that we couldn't have proved murder if we had wanted to because there was no premeditation.
03-9560 +++$+++ 10960 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I go back to the heat of passion point? You say he did not put on evidence, but wasn't there evidence in the record through a State's witness that at least would have supported a heat of passion argument, the evidence being that he went up to the car, no gun was apparent, something happened. Evidence shows that he was sprayed with mace, and at that point, he pulls out a gun and shoots. That, I suppose, is evidence of heat of passion. Couldn't he have asked for a heat of passion instruction even though he did not put on the heat of passion evidence himself?
03-9560 +++$+++ 10961 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He could have asked for a heat of passion instruction, but --
03-9560 +++$+++ 10962 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay, but he did not do so.
03-9560 +++$+++ 10963 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but he did not do so. Yes, sir. That -- those facts --
03-9560 +++$+++ 10964 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Wait. You're -- you're -- I don't -- you're calling the heat of passion an element of -- of the crime of manslaughter? It's not an element of the crime.
03-9560 +++$+++ 10965 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's sudden provocation, yes, sir.
03-9560 +++$+++ 10966 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Suppose you walk up and -- and you blow somebody away. You can't -- there's no heat of passion. There's no sudden provocation. You just walk up and blow them away. And you're telling me that that's not a crime because you can't -- you can't prove heat of passion? You can't prove one of the other elements of manslaughter? That can't be right.
03-9560 +++$+++ 10967 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, sir. The --
03-9560 +++$+++ 10968 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why isn't it enough that you killed somebody?
03-9560 +++$+++ 10969 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If -- if --
03-9560 +++$+++ 10970 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You killed somebody. You didn't plan to kill to somebody, so it's not murder. Okay. But you killed somebody. Surely, there must be some crime in -- in Mississippi that -- that covers that.
03-9560 +++$+++ 10971 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir. You --
03-9560 +++$+++ 10972 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What is it?
03-9560 +++$+++ 10973 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- charge murder and -- and the prosecution --
03-9560 +++$+++ 10974 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. It's not murder. It wasn't -- you know, he didn't -- I didn't walk up to the -- to the car intending to kill him. As you say, you couldn't have indicted for murder.
03-9560 +++$+++ 10975 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Likely, the State would -- would have -- have -- if those were the facts and that's all the facts that we had, then the State would likely have charged murder and asked for a lesser-included offense instruction for manslaughter.
03-9560 +++$+++ 10976 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Manslaughter being defined as killing without deliberation?
03-9560 +++$+++ 10977 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir.
03-9560 +++$+++ 10978 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay. That's what he is saying --
03-9560 +++$+++ 10979 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There -- there is a -- you say there -- there are what? Nine different manslaughter, did you say?
03-9560 +++$+++ 10980 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Twelve different manslaughter --
03-9560 +++$+++ 10981 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Twelve different, and one of them is simply killing somebody simpliciter, without any provocation. Right?
03-9560 +++$+++ 10982 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir, without. But he requested the culpable negligent manslaughter instruction, and there was no evidence of culpable negligent manslaughter. It's a separate section in our code now. There are 12 different sections. It's not like we have one statute that lists all of those. And -- and some of them are -- are arcane. And I think it's unfair to ask a trial court judge to correct every request for an instruction and -- and -- he -- at trial, if you read --
03-9560 +++$+++ 10983 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, let -- let me ask -- ask you this. Knowing what we know now, we have the record, we have the benefit of hindsight, we know the evidence, in your view now what would have been the closest lesser-included offense for which an instruction might have been sought?
03-9560 +++$+++ 10984 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are two possibilities that were not requested. One is our felony -- felony murder. Felony murder is -- is the killing of -- that occurs without occurring with one of the seven offenses that we have listed, murder, rape, and so forth, committing another crime. Or heat of passion manslaughter. And I would submit to the Court that -- that they never requested anything about the felony murder and they never requested the heat of passion manslaughter.
03-9560 +++$+++ 10985 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask this question just to help me sort of -- what are the -- as a matter of State law, what are the elements of the offense for which he was convicted?
03-9560 +++$+++ 10986 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Elements of the offense are that he -- that he -- a killing occurred with or without intent and that it was in the commission of -- of a crime, robbery.
03-9560 +++$+++ 10987 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Those are the two elements. And so that if you take out with -- in the commission of another crime and just left the -- the other part of it, would that also be an offense?
03-9560 +++$+++ 10988 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With or without under Mississippi law --
03-9560 +++$+++ 10989 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In other words, you say -- you say the offenses are killing somebody with or without the intent to do so --
03-9560 +++$+++ 10990 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir.
03-9560 +++$+++ 10991 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- and in the course of an attempted felony. Say you failed to prove the attempted felony and you proved the remainder of the -- the other elements. Is he guilty of anything in -- under Mississippi --
03-9560 +++$+++ 10992 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- if you -- if you prove the intent --
03-9560 +++$+++ 10993 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And if he is, why isn't it a lesser-included offense is my next question.
03-9560 +++$+++ 10994 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir. If you just take those away and you just have those two elements, with or without, if it's with intent, then it would be classified as murder. If it's without, it could possibly be -- without intent, then it could be classified as manslaughter.
03-9560 +++$+++ 10995 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It seems to me that then there are two lesser-included offenses, and either one would have -- he should have gotten an instruction on both.
03-9560 +++$+++ 10996 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I --
03-9560 +++$+++ 10997 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And I don't understand why not.
03-9560 +++$+++ 10998 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir, I understand. But there again, if we go back to what the Federal standards are, we're talking about what the United States Constitution requires, and therefore, I would submit to the Court that we should apply what the Federal law is. And that law is -- number one, is it a lesser-included offense? Using the elements test, murder is not a lesser-included offense to capital murder, and the reason being is because capital murder is with or without intent and you add an additional element of murder which requires intent. Same goes for manslaughter because you had the additional sudden provocation element. So I would say that if we follow the Federal standard and -- and that's -- that's the floor, and the floor is it's got to be a lesser-included offense, it -- it's not a -- a lesser-included offense. So therefore that should answer the question. Secondly, under the Federal standard, you have to prove that -- that the court -- the judge has to decide that the -- a reasonable juror would acquit of the greater offense and also convict of the lesser. Well, Mississippi law does not require that, but I -- I'd submit to the Court that -- that after the Beck decision in 1980, our supreme court in the case of In re Jordan -- they applied the Federal standard. They required that -- when they analyzed Beck, they applied the Federal standard, in other words, the -- the part about that you have to acquit. You have to acquit on -- on the greater offense. And they also included the lesser-included offense language in that Beck analysis. So, therefore, had he properly raised the jurisdictional issue -- there's nowhere in the record does he cite Beck. There's nowhere in the record that he states facts that would even support Beck. So had he even properly reached that issue and -- and cited Beck, I would submit to the Court that the facts don't support it under Mississippi law. The facts don't support it under Federal law. And it doesn't meet the lesser-included offense standard.
03-9560 +++$+++ 10999 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May -- may I ask you? I'm unclear on -- on lesser-included in Mississippi. And I'm going to take this step by step.
03-9560 +++$+++ 11000 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir.
03-9560 +++$+++ 11001 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And tell me if I'm right or wrong at each step. The offense that he was charged with -- the capital offense that he was charged with was killing with or without intent in the course of committing a crime. Is that correct?
03-9560 +++$+++ 11002 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir.
03-9560 +++$+++ 11003 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. Now, his claim -- let's assume he claims this. There is evidence from -- from which you -- you could infer that he wasn't committing a crime. He may or may not be right, but let's assume that's his claim, and let's assume the judge says, yes, there's some evidence that would indicate that he wasn't up there robbing at the time he stood next to the car. Assume the judge accepts that. He then says, on that assumption, I want a lesser-included offense instruction of simple murder, killing with intent. Is that a lesser-included offense under -- under capital murder?
03-9560 +++$+++ 11004 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There again, Your Honor --
03-9560 +++$+++ 11005 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Because what he's saying is, I'm asking for an instruction on an offense which is lesser -- it does not -- it's an offense that doesn't include the course of the crime, but it does include the other elements. It includes killing with intent. Isn't that lesser-included on your definition of Mississippi homicide law?
03-9560 +++$+++ 11006 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, sir. And -- and I would say that under the Federal standard, clearly it's not a lesser-included offense. I would say under the State --
03-9560 +++$+++ 11007 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes. I mean, he's got to qualify under the Federal standard. He says, the offense I was charged with was killing with or without intent, plus crime. I want an instruction that says nothing about plus crime but simply charges on killing with or without intent. Isn't he asking under Federal law for a lesser-included instruction?
03-9560 +++$+++ 11008 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, sir. He didn't -- first of all, he never --
03-9560 +++$+++ 11009 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. Confine it to killing with intent.
03-9560 +++$+++ 11010 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir.
03-9560 +++$+++ 11011 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Under -- under -- as I understood -- as I understood you to define the capital offense, the State could prove the capital offense by saying he did have intent when he killed and he also happened to be committing a crime. Am I wrong about that statement of Mississippi law?
03-9560 +++$+++ 11012 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor. I apologize. I -- I didn't follow you.
03-9560 +++$+++ 11013 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought you said that on the capital offense, the killing could be with or without intent.
03-9560 +++$+++ 11014 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-9560 +++$+++ 11015 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I -- I --
03-9560 +++$+++ 11016 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I think you confuse us by saying that. If you just left that out of your statement, felony murder is killing in the course of a crime. Don't say anything about intent. Intent is not an element of felony murder. Right?
03-9560 +++$+++ 11017 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir.
03-9560 +++$+++ 11018 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So if you want to get plain murder, you're adding an element.
03-9560 +++$+++ 11019 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
03-9560 +++$+++ 11020 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It has to be murder with intent, and that's why you say it's not a lesser-included offense because for plain murder, you need intent, and for felony murder, you don't need intent.
03-9560 +++$+++ 11021 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, sir.
03-9560 +++$+++ 11022 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Isn't that -- isn't that your case?
03-9560 +++$+++ 11023 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir.
03-9560 +++$+++ 11024 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So that the Mississippi law for felony murder is killing, pure and simple, plus crime, and simple murder is killing plus intent. And that plus intent is why it is not lesser-included.
03-9560 +++$+++ 11025 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir, on a felony --
03-9560 +++$+++ 11026 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay. I understand you now. Let -- let me ask you this as a matter of -- on -- on the second point, as a matter of Mississippi law. Under the charge of capital murder, was there a possibility of sentencing to life or life without parole, as well as the possibility of the death penalty upon conviction?
03-9560 +++$+++ 11027 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir, and that's why I would submit to the Court it distinguishes --
03-9560 +++$+++ 11028 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay. So that's the second reason why it would not fall within the -- the Beck rule.
03-9560 +++$+++ 11029 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir.
03-9560 +++$+++ 11030 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
03-9560 +++$+++ 11031 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'd like to also point out factually that in the -- in the -- initially in the petition, the -- and actually at trial and at the Mississippi Supreme Court, they talked about that the defendant may have been able -- may have been out there selling drugs to the defendant. I'd submit to the Court that a proper review of the record, if you look at the Mississippi Supreme Court opinion at page 98 and -- 97 and 98 and page 40, the defendant in his own brief admits that that was not in evidence. It came from the -- from a plea where the -- where one of the co-defendants pled, and it never was placed before the jury. Here in -- in the brief in this particular case, they talk about, well, he -- maybe he was borrowing money, the sting question, whether he was borrowing money. That comment came from one of the witnesses named Powell who was merely speculating. I don't know what he was talking about a sting, but it could have been that he was going to borrow money or -- or rob somebody. So that -- that was speculation. So the -- the facts just don't support the granting of a lesser-included offense in this particular case. I'd also like to ask the Court to -- to note that in Hopkins v. Reeves in footnote 7, the -- the Court suggests that we don't decide that -- that particular case based upon the bifurcation issue alone. I would ask that the Court answer that question in this particular case and state that Beck has no application in this particular case because the danger that occurred and the Court's concern with in Beck is not -- doesn't happen here in the Mississippi instance because in Jackson v. State, we had already said that you have a bifurcated hearing --
03-9560 +++$+++ 11032 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, but -- but it is true that -- that there's a difference between becoming eligible for the death penalty, on the one hand, and not being eligible on the other. And conceivably the Beck concern is triggered when the failure to give a lesser-included offense gives the jury the option of -- no other option other than convicting of a capital offense.
03-9560 +++$+++ 11033 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, I -- I would respectfully disagree. We believe that the -- the Beck issue is just with this question. You have a choice of guilt and death penalty or acquittal. This question that they're raising is conviction, not death penalty, or acquittal. And those are separate issues.
03-9560 +++$+++ 11034 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- an offense for which the death penalty is the punishment.
03-9560 +++$+++ 11035 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir, but it doesn't impact the guilt phase, and that was what the problem was, I believe, in Beck, was that -- that a jury might not -- they don't want to turn him loose because -- and they give him a conviction, which automatically carries the death penalty. And that impacts the jury. And I understand that. That was a proper decision, but that just didn't happen here in this particular case. And Mississippi has just distinguished Beck. I don't believe that they properly raise this Court's jurisdiction. They never cite Beck. They never raised -- they never said due process.
03-9560 +++$+++ 11036 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, but if the jurors' concern is that you either have to acquit them or -- we want to make sure he never walks out of prison again, and the only way to do that is to convict him of a capital offense so the judge can impose the death penalty. I don't know why that Beck wouldn't be triggered on those facts.
03-9560 +++$+++ 11037 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, maybe I don't understand the question correctly. But in Beck, you know, the jury wasn't told that the judge would have a separate option of denying the death penalty. In this case, judge in State's -- court instruction C-5, the court says you are not to consider the sentence, that you only consider the issue of guilt or innocence of the charge. And so that's why I say this is not a Beck issue because it doesn't impact the -- the jury's determination in the guilt phase.
03-9560 +++$+++ 11038 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it seems to me that works against you because it takes away from the jury the option of saying, well, we'll convict him of a serious offense, but we'll be sure not to give him a capital offense. So that -- it seems to me that that argument then works against you.
03-9560 +++$+++ 11039 +++$+++ TRUE +++$+++ MR. HOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Kennedy, in Mississippi, we have, there again, that open standard, not the Federal standard. And we would give him that instruction and give that jury that option if the facts support it, and I respectfully submit to the Court that -- that the facts do not support a lesser-included offense under these facts. If the Court has no further questions, thank you.
03-9560 +++$+++ 11040 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, General Hood. Mr. Mitchell, you have about 4 and a half minutes left.
03-9560 +++$+++ 11042 +++$+++ FALSE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and -- and may it please the Court: With regard to the argument that the State makes here that these individuals had ridden around all night with a plan to rob and that, therefore, there were no other -- there was no other possibility for the court to consider in -- in granting instructions, first, it is our contention that both Mississippi law and due process law requires a judge to instruct a jury on all of the relevant issues in the case, on all the relevant law in the case. And in Fairchild v. State, that is precisely what the Mississippi court did in saying that a court could not simply conclude, no matter how strong the evidence of attempt to rob or plan to rob, that it could, in effect, direct a verdict and not instruct on lesser-included offenses.
03-9560 +++$+++ 11043 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, your -- were the two principal lesser-included offenses in -- in your view your D-13 and D-18 that are in the appendix?
03-9560 +++$+++ 11044 +++$+++ TRUE +++$+++ MR. MITCHELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, those are the ones that were -- were, in fact, raised. We believe that rather than intent the -- on the simple murder, that the issue is malice as opposed to intent. The statutory definition, for example, of manslaughter in -- in Mississippi statute 97-3 -- I believe -27 is a killing of a human being without malice and while not in the commission of these felonies. Now, it may be that simply a small-town lawyer from -- from North Carolina is told don't go to the big city and get stung by some guy coming up to you and saying, you know, I just got off the bus and I need to get some money from you and my kids and my wife are waiting for me in the hotel room. But that happens not only in the big city, it also happens in Mississippi. And so there was a basis in which a jury could reasonably infer that there was a reason to approach that vehicle other than an attempted robbery. And the question is, what is a reasonable inference? The Mississippi court here in its opinion said that there was clearly evidence from which a jury could infer robbery. We concede that, but there were also other inferences that this evidence raised, and that evidence, we respectfully submit, mandated a lesser-included offense instruction. We also contend that -- that the State has not, heretofore, raised any issue about Beck's continuing vitality, but we respectfully submit that Beck is of continuing vitality. Just a -- a survey of even habeas corpus cases from the various circuits will show that the circuits are continuing to apply Beck even in States where the statutory sentencing scheme is far different from Beck and there is no preclusive statute involved, as there was in Alabama. We respectfully submit that the language in Beck itself speaks to this issue. The Beck court added, the same reasoning must apply to rules that diminish the reliability of the -- the guilt determination, the very point that Justice Kennedy pointed out undercuts Mississippi's argument. It is this diminution of the reliability of the guilt determination that is at issue here. In addition to that, we would respectfully submit that under these circumstances, there was a basis under which a lesser-included offense instruction was mandated because Beck did not apply the Blockburger test. In fact, it did not incorporate Blockburger, did not refer to Mullaney v. Wilbur. What it did was it said if there is a lesser-included offense, as defined by State law. All of the succeeding cases from this Court have said if there is a lesser-included offense, as defined by State law, conceding that State law is the applicable standard then and not the standard that the State now seeks to impose, which it never raised in -- in its brief, which it has never asserted to be the standard. Blockburger is certainly not cited in anything that the State has submitted. Blockburger is not contended to be the basis, nor could it be. The basis is is there a lesser-included offense under State law, and we contend that that is the basis on which this case should be decided. Thank you very much.
03-9560 +++$+++ 11045 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Mitchell. The case is submitted.
03-9627 +++$+++ 11049 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument in Pace against the -- the warden. Mr. Wycoff.
03-9627 +++$+++ 11051 +++$+++ FALSE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: Mr. Pace, at age 17, was sentenced to life without possibility of parole after being misled by his lawyer and the court. His right to Federal habeas review depends entirely upon whether his State post-conviction proceedings tolled the AEDPA statute of limitations. This Court should --
03-9627 +++$+++ 11052 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, he -- he had a prior round of hearings at the State level on these same claims, did he not?
03-9627 +++$+++ 11053 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ On different claims, Your Honor. He had a first, a -- under what was called the PCHA in Pennsylvania. The tolling question here is whether the PCRA petition --
03-9627 +++$+++ 11054 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I know, but the substance of it, saying it isn't fair to give me life without parole because of what happened, I didn't understand the plea -- he raised that in State court before.
03-9627 +++$+++ 11055 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He raised it in the first proceeding an ineffective --
03-9627 +++$+++ 11056 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
03-9627 +++$+++ 11057 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- assistance of counsel claim --
03-9627 +++$+++ 11058 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
03-9627 +++$+++ 11059 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- related to that and some other claims related to that --
03-9627 +++$+++ 11060 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right.
03-9627 +++$+++ 11061 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in the second proceeding.
03-9627 +++$+++ 11062 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And he -- he essentially wants to relitigate the substance of those previous claims.
03-9627 +++$+++ 11063 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. He actually -- the first petition raised only an ineffectiveness claim. The second petition raised a due process challenge to the colloquy, which was not exhausted in the first, raised new evidence to support the claim which Pennsylvania law allowed him to do, and raised a constitutional and State law challenge to the legality of his sentence. There were new claims in the second proceeding.
03-9627 +++$+++ 11064 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- of both claims was, however he dressed it up in -- in due process, that I wasn't told at the time of my sentencing that life meant life without parole. That was the essence, the core of his complaint the first time around, wasn't it?
03-9627 +++$+++ 11065 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that his lawyer misled him was the first claim, that by telling him he'd be out in 10 to 15 years.
03-9627 +++$+++ 11066 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the -- but the essence of it was I wasn't told that life meant I would never get out of prison.
03-9627 +++$+++ 11067 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-9627 +++$+++ 11068 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Both times.
03-9627 +++$+++ 11069 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In -- in the second he raised that plus that the colloquy itself was defective and that the sentence, the life without parole sentence, was illegal and unconstitutional, apart from the misinformation aspect. So they were different claims. Let me start with statutory tolling. Section 2244(d)(2) of AEDPA provides tolling during properly filed applications for State post-conviction review. Under this Court's unanimous decision in Artuz, Mr. Pace's PCRA petition was properly filed. In fact, the PCRA time bar functions in all material ways like the New York State procedural bar rules at issue in Artuz. Now, Artuz also identified some types of rules that would prevent an application from being properly filed, for example, the AEDPA successive bar which makes you go to the court of appeals first and get permission before you can actually file in the district court, and it has a screening mechanism to make sure that only petitions with a prima facie chance get filed. The PCRA time bar is nothing like that at all. It's like the State court procedural bar rules in Artuz. There's no condition to filing. You can go and file at any time. The court, as a matter of law, has to take your petition, has to give it judicial review -- yes, Your Honor.
03-9627 +++$+++ 11070 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Wycoff, are you taking the position that this -- that Artuz -- I thought, frankly, that Artuz had classified within properly filed timely filed and then had a footnote, and it says that there might be some exceptions to a timely filing rule --
03-9627 +++$+++ 11071 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-9627 +++$+++ 11072 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- rule. And they're not taking a position about that. But you quickly said this time limitation falls under the procedural bar label.
03-9627 +++$+++ 11073 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, Your Honor. Yes. This -- Artuz said that a time limit without exception, say, in 30 days you must file in 30 days, no exception, or in 1 year, no exceptions -- that's what Artuz called a condition to filing and that you're either in or you're out in that rule. And Artuz, though, reserved the question presented here of whether a time bar with exceptions, like the PCRA time bar -- whether that could be properly filed. And so obviously, Artuz reserved the exact question here. But what -- the analysis of Artuz controls here and shows that this petition was properly filed.
03-9627 +++$+++ 11074 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it depends on what the exceptions are. If -- if -- as -- here I understand there are three exceptions.
03-9627 +++$+++ 11075 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-9627 +++$+++ 11076 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And they're all spelled out in the statute.
03-9627 +++$+++ 11077 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They're similar to the AEDPA exceptions.
03-9627 +++$+++ 11078 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. And -- and if you do not plead any of those exceptions when you -- when you file, it seems to me it's not properly filed.
03-9627 +++$+++ 11079 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there are a couple of responses to that, Your Honor. First of all, in -- in terms of Mr. Pace, the Pennsylvania Supreme Court has said it wasn't at all clear before, roughly, December of 1999 that you actually need to plead those exceptions in your petition. Now they say you should plead them in your petition, but at the time it wasn't clear. Certainly the -- the form that the prison provides --
03-9627 +++$+++ 11080 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't care what the Pennsylvania law is. I mean, it -- it seems to me if you have a statute that says it's untimely unless one of these three exceptions apply, and -- and you -- you simply file and you don't say -- and it's clearly out of time without one of the exceptions, and you simply file and don't say but this exception applies, it seems to me that's not properly filed, whatever the rule in -- in Pennsylvania was.
03-9627 +++$+++ 11081 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If -- in terms of -- to go to Artuz' analysis, you would have to look at each -- the exceptions are -- go claim by claim. You would have to look at each claim and see did you plead the exception for this claim, yes or no; this claim, yes or no. So again --
03-9627 +++$+++ 11082 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you haven't pleaded any of them, none at all. You just file it --
03-9627 +++$+++ 11083 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In that case --
03-9627 +++$+++ 11084 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- several years out of time. You -- you make no assertion that any one of the -- of the three specific exceptions applies. I don't see how that could possibly be considered properly filed.
03-9627 +++$+++ 11085 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the court still accepts it, reviews it to see if any of the exceptions apply.
03-9627 +++$+++ 11086 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Ah, that -- that's your theory that -- that --
03-9627 +++$+++ 11087 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- I'm sorry.
03-9627 +++$+++ 11088 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Unless it can be rejected by the clerk --
03-9627 +++$+++ 11089 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not at all, Your Honor. It's not that -- that theory at all. In -- in Pennsylvania, the court accepts it and gives it judicial review and reviews it claim by claim to see if any of the exceptions apply.
03-9627 +++$+++ 11090 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you haven't made the claim.
03-9627 +++$+++ 11091 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's what the court would determine. And presumably in a case like that, the court would be able to dispose of it quickly and --
03-9627 +++$+++ 11092 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What -- what does the Pennsylvania court -- law now say with respect to claim-by-claim pleading of the exceptions?
03-9627 +++$+++ 11093 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Pennsylvania Supreme Court now has said you should plead in the PCRA petition the exceptions.
03-9627 +++$+++ 11094 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Claim by claim?
03-9627 +++$+++ 11095 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For each -- any claim that you're raising, yes. It goes claim by claim.
03-9627 +++$+++ 11096 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This problem couldn't arise again in Pennsylvania, couldn't it, because they have a 1-year statute of limitations? So there would be no way that you could be untimely filing within the 1 year that you have to go to Federal court.
03-9627 +++$+++ 11097 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it can arise again, Your Honor, and that --
03-9627 +++$+++ 11098 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It can? How could it --
03-9627 +++$+++ 11099 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it can arise again and -- and will many times arise again because consider someone who's already had his or her AEDPA year pass and then discovers, say, a Brady claim and wants to go back and litigate that. Under AEDPA, you would have a year to get back into court with that.
03-9627 +++$+++ 11100 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You do. I thought AEDPA you had to file within a year.
03-9627 +++$+++ 11101 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-9627 +++$+++ 11102 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And then if you miss the year, you're out of luck. Period.
03-9627 +++$+++ 11103 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's -- yes, but under State law, you only have 60 days to get that. So someone in Pennsylvania who finds a Brady claim, say, has to get back into State court within 60 days of discovering that. So his -- he -- he could go into State court --
03-9627 +++$+++ 11104 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I see. So in other words, he -- his conviction is final.
03-9627 +++$+++ 11105 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-9627 +++$+++ 11106 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ 60 days runs after his final conviction and then between the 60th day and the 365th day, he has discovered his Brady claim and has not got into court within 60 days.
03-9627 +++$+++ 11107 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Or he finds it in what he thinks is within 60 days of when he should have found it. He files his State post-conviction application. After years of litigation, the court says, you know, you really should have found it 59 days ago, not 60.
03-9627 +++$+++ 11108 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And Justice Scalia's question -- I'm interested in this. It couldn't arise. That is, a person who files his State collateral petition more than 365 days after the finality of the State court direct review, that person is out of luck under anybody's interpretation because more than a year has passed since it became final, i.e., the State direct review. Am I right or wrong about that? That's what's puzzling me.
03-9627 +++$+++ 11109 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it depends on if there's a new -- if -- if there has not been a new triggering date, other than the finality for the AEDPA date, then you will be out of time for AEDPA.
03-9627 +++$+++ 11110 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But AEDPA -- it doesn't say 1 year and that's it. AEDPA has exceptions.
03-9627 +++$+++ 11111 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it does, Your Honor.
03-9627 +++$+++ 11112 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The exemptions still could be the problem.
03-9627 +++$+++ 11113 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. And in fact, everyone now who has, say, a Brady claim is going to have -- under Third Circuit law as it is now, is going to have to come into Federal court and file a protective habeas petition because the odds are very likely that more than a -- the AEDPA year is going to run while they litigate this.
03-9627 +++$+++ 11114 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. We would have to breathe life back into the stay and abey --
03-9627 +++$+++ 11115 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-9627 +++$+++ 11116 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But let me ask you this. Returning to our earlier discussion about pleading a specific exemption --
03-9627 +++$+++ 11117 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-9627 +++$+++ 11118 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- are there States, do you know, where that is not required and the State court will go through the exceptions even if you haven't pled them?
03-9627 +++$+++ 11119 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Pennsylvania actually does that and certainly did it at the time Mr. Pace was litigating.
03-9627 +++$+++ 11120 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but I thought you said Pennsylvania law had changed now.
03-9627 +++$+++ 11121 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They have said now you should plead them at the petition -- in the petition.
03-9627 +++$+++ 11122 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But my -- my question is do you know if there are other States where they say, we don't care if you plead these --
03-9627 +++$+++ 11123 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
03-9627 +++$+++ 11124 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- exemptions specifically or not? We're going to look through it and find it for ourselves.
03-9627 +++$+++ 11125 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I don't know the answer to that. I know that was the practice. In -- in fact, Pennsylvania courts still do that.
03-9627 +++$+++ 11126 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you say that if that's the case, you can file a -- a State -- a State claim that is plainly no good and until the State court finally gets around to -- to telling you that it's no good, your -- your AEDPA claim is tolled.
03-9627 +++$+++ 11127 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, while you're -- and the State could easily prevent that by setting up some kind of prefiling requirement for --
03-9627 +++$+++ 11128 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that's, in -- in effect, saying that there is no -- that the properly filed, given the Pennsylvania procedure, does not include timely filed.
03-9627 +++$+++ 11129 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the question of whether it was timely or not is not actually determined until the end of the litigation.
03-9627 +++$+++ 11130 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- but you have just said that the -- the court will look on its own to see if there are these exceptions.
03-9627 +++$+++ 11131 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-9627 +++$+++ 11132 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that there would be no case of an untimely filing in this period when the court was -- even if you raised no exception, was going through them.
03-9627 +++$+++ 11133 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-9627 +++$+++ 11134 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There would be no case in which an untimely filing would be included in properly filed because the very fact that the court itself would go through the petition to look for exceptions would take it out of the category.
03-9627 +++$+++ 11135 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, and exactly the same could be said about Artuz, the procedural bar rules in Artuz, whether someone pled --
03-9627 +++$+++ 11136 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the -- the difference was that Artuz ranked timely filing as an ingredient of properly filed, and you say but not in Pennsylvania the way it's set up. Timely filing is not an ingredient of properly filed.
03-9627 +++$+++ 11137 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the State court lets you file it and gives it judicial review and applies it claim by claim.
03-9627 +++$+++ 11138 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But don't -- don't you have a -- a -- sort of a second prong to -- to your response? And I -- I wanted to get into this. You -- you have said Pennsylvania will let you file even though ultimately it, you know, may well determine that you -- you were out of time and you don't fall within any of the exceptions. Well, that's -- that's an answer. I'm not sure it's a strong enough answer to respond to Artuz. But I thought you had a second part to the answer, and I thought your second part to the answer was in that kind of situation, the Third Circuit practice, the Third Circuit rule is that unless we go through the Pennsylvania process, even if we know from day one that we're out of time, we think we have a -- an excuse, but even though we -- we think from day one we're out of time, unless we exhaust the Pennsylvania process, they will throw us out for nonexhaustion. And the reason they will throw us out from nonexhaustion, as opposed to going directly to the question whether there is an excuse for nonexhaustion, is because Pennsylvania will actually let us litigate this --
03-9627 +++$+++ 11139 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-9627 +++$+++ 11140 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- and not determine it as a threshold matter. So -- so your answer, as I understand it, is Pennsylvania let's you litigate it, and the Third Circuit requires you to litigate it so that the only reasonable thing for us to do is to litigate it even if you may say in the abstract it's a purely threshold time question. And for that reason, there should be tolling. Isn't that your argument?
03-9627 +++$+++ 11141 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. And it's -- it's connected to the statutory language. AEDPA says we'll toll for properly filed applications. That -- AEDPA is keyed to how much process the State post-conviction courts will give you. In a -- in a State where they say anyone who comes after a year, we won't give you any review and you're just out of court, AEDPA says when -- that's not -- we're not going to consider that properly filed. We won't toll, but --
03-9627 +++$+++ 11142 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ This is putting such a -- I mean, the system is not going to work. It -- it's a rare State system that has an absolute statute of limitation with no exceptions. You're almost going to have to inquire into exceptions. So you're saying this is a way to avoid -- avoid AEDPA endlessly, just keep filing claims that are out of time, and until the court finally gets around to saying it's out of time, your -- your AEDPA time is tolled --
03-9627 +++$+++ 11143 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
03-9627 +++$+++ 11144 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- by which time you file another one that's clearly out of time. And until that one is resolved -- I -- this couldn't be what AEDPA was -- was meant to establish.
03-9627 +++$+++ 11145 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And -- and if you're tempted to answer, well, people want to get out so they're not going to sit around forever, then we'd ask you what about the death cases.
03-9627 +++$+++ 11146 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay, and that was what I was tempted to answer, and since you said it, I'll go straight to the death cases. In Pennsylvania, certainly there's no -- a death-sentence prisoner can get nowhere by filing what he knows to be an untimely PCRA petition because Pennsylvania law requires the Governor to sign warrants when the conviction is final and then at every break in the litigation basically after that. And the PCRA courts cannot grant a stay of execution until after they find that the petition is both timely and meritorious. So it's not --
03-9627 +++$+++ 11147 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm not sure that would apply to other States.
03-9627 +++$+++ 11148 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true. And I mean, each State can set up a system to -- to satisfy its needs. Pennsylvania could set up a system like the AEDPA successor bar to say you're not going to be filed at all until we give you permission.
03-9627 +++$+++ 11149 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Under your rule that filing is sufficient, are there any instances of -- of frivolous petition where your rule would not apply?
03-9627 +++$+++ 11150 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think all the courts of appeal that have -- have talked about that have thought -- have said that you really shouldn't start figuring out whether it was a frivolous assertion or meritorious --
03-9627 +++$+++ 11151 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, then Justice Scalia's prediction is -- is right. You just keep filing and filing.
03-9627 +++$+++ 11152 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Presumably you could and if there's someone who wants to do that, which is going to be a rare --
03-9627 +++$+++ 11153 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose you lost on that one. Suppose that you wanted some kind of a -- suppose that the majority wanted a standard that would prevent absolutely frivolous filings on the basis of -- of statute of limitations. Would you -- what standard would -- what -- what's our choice of standards there? Could we -- one, obviously, that the prisoner has to be in good faith. Another could be he has to be in good faith and there has to be a reasonable argument that it hasn't run. Maybe there are others that you've thought of.
03-9627 +++$+++ 11154 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that going down that path is going to open up just a nightmare of -- of litigation in Federal court about -- if you start talking about good faith and are you -- if the State courts deny it, can you still say it was nonfrivolous? I think all the courts just across the board have tried to avoid that type of thing.
03-9627 +++$+++ 11155 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Try -- try this simple rule. Where you're dealing with a statute of limitations that has exceptions, it's not properly filed if you do not assert the existence of one of those exceptions.
03-9627 +++$+++ 11156 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Two -- I have two things to say about that. One is it creates a problem with Artuz because that type of rule -- assuming the exceptions are like the PCRA exceptions which go claim by claim, that's a claim-by-claim rule which would then create the anomaly that Artuz shied away from, that you look to whether it was a properly filed application, not to whether it was an application with properly filed claims. The second point is that -- is that for Mr. Pace, whatever the merits of that rule may be going forward, it -- it can't be used against Mr. Pace because there was no such requirement in Pennsylvania. I mean, presumably the -- I assume the Federal courts are not going to make up this rule, that it's going to be up to the State courts to say what their filing --
03-9627 +++$+++ 11157 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why -- why not? We make up a lot of stuff. (Laughter.)
03-9627 +++$+++ 11158 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Artuz talks about you look to the State's procedural filing requirements. This is a Federal statute and properly filed is given a Federal meaning, but you presumably look to the State filing requirements, as you did in Artuz, to determine what that means. Now, all of these concerns about delay and so on are the exact same concerns, where there in Artuz someone could file successive petition after successive petition in New York if they want to delay. It's just not -- it's not a -- it's certainly not a problem for noncapital cases.
03-9627 +++$+++ 11159 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought the whole purpose of AEDPA was -- was to prevent delay. I mean, that's -- that's what's -- it seems to me counter-intuitive about the position you're -- you're urging upon us. Here is a statute that was meant to stop these things from dragging on endlessly.
03-9627 +++$+++ 11160 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-9627 +++$+++ 11161 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you tell us don't worry about these things dragging on endlessly.
03-9627 +++$+++ 11162 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not -- I'm saying AEDPA says come to Federal court within a year. We'll toll when you're in State court if it's properly filed. Properly filed, if the States let you file a lot of stuff, we're going to -- comity requires to allow that, and we'll toll. If the States don't --
03-9627 +++$+++ 11163 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's unrealistic if the States allow you to file a lot of stuff. You're -- you're saying the only way the States can stop this thing from going on and on and on is to adopt an absolute rigid statute of limitations, no exceptions.
03-9627 +++$+++ 11164 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's one way or a prefiling requirement.
03-9627 +++$+++ 11165 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Give me another way.
03-9627 +++$+++ 11166 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The AEDPA prefiling requirement where you go to the court and you say, I'd like to file this petition, tell me if I can, and the court says, 30 days later, yes or no. That's --
03-9627 +++$+++ 11167 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, but if it takes a year a later, then we --
03-9627 +++$+++ 11168 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, yes. If -- the AEDPA --
03-9627 +++$+++ 11169 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then you just repeat the process one step backward.
03-9627 +++$+++ 11170 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. I think the courts are -- are -- the Federal courts are capable of telling the difference between an application for State post-conviction relief on the one hand and a motion for leave to file an application on the other hand. In fact, the Seventh Circuit in -- in the Smith v. Walls case and the Tinker v. Ward case that we cited in our brief had exactly that distinction between an Indiana rule which had a prefiling requirement and an Illinois rule --
03-9627 +++$+++ 11171 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about a -- a rule requiring good faith or reasonable argument in death cases? In all the other cases, there's no incentive to do this endless filing, and in death cases, there is. So in those death cases, we would insist that it is not properly filed if it's out of time unless the prisoner in good faith and with a plausible argument, a reasonable argument thought it was in time.
03-9627 +++$+++ 11172 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I suppose that -- I mean, that could be a construction of the statute as long as you let people -- people are going to come to Federal court first and get -- for stay abeyance if you do that. If you don't know until the outcome years later whether you were tolling or not, that's going to cause everyone to file protective filings.
03-9627 +++$+++ 11173 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think that's a reasonable interpretation of properly filed and -- and what I proposed to you is not a reasonable interpretation of properly filed?
03-9627 +++$+++ 11174 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I was just --
03-9627 +++$+++ 11175 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How can you -- how can you tease that elaborate system out of -- out of the words properly filed but you cannot tease out of it --
03-9627 +++$+++ 11176 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
03-9627 +++$+++ 11177 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- simply showing on its face that there's either an absolute statute or that one of the exceptions to the statute exists?
03-9627 +++$+++ 11178 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The problem with that in terms -- is that it conflicts with Artuz' idea that the -- any rule that's a condition to filing has to go to the application as a whole.
03-9627 +++$+++ 11179 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I don't think it actually -- I mean, in -- I think they're about equal, aren't they, in respect to language? And the argument against the other one is that prisoners are going to get mixed up about it. They -- they don't know exactly what they're supposed to put. The argument against the one I proposed is it adds complexity of decision-making. Sort of between the two, it's rather hard to see.
03-9627 +++$+++ 11180 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Just --
03-9627 +++$+++ 11181 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They each have their problems.
03-9627 +++$+++ 11182 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Just in terms of -- of policy, I think any rule you adopt that's not mechanical and doesn't let people know on the front end whether they're tolling or not, there's going to be floods of protective filings. Now, the -- the rule like -- a rule which is -- which -- where they know going in and whether they're going to be tolled or not, then they can say plead -- litigate in State court becoming -- before coming to Federal court. And Duncan v. Walker was very clear that the court doesn't want lots of people filing prematurely. If I could, I'd like to turn to equitable tolling. As Chief District Judge Giles found, that it would be an extraordinary deprivation of rights and patently unfair to deny tolling in Federal review here, he found -- Judge Giles found that if Mr. Pace had filed a Federal habeas petition instead of his PCRA petition, Judge Giles would have dismissed it and required him to do exactly what he did, which is to seek State remedies under the PCRA. As Judge Giles found, Mr. Pace acted diligently and appropriately under the circumstances. It seems this is a clear case for equitable tolling. This is a case where --
03-9627 +++$+++ 11183 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The circumstances included the fact that he sat on this thing for 3 years. He could have brought it 3 years earlier, couldn't he?
03-9627 +++$+++ 11184 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You're talking about the time from the first PCRA --
03-9627 +++$+++ 11185 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The claim, yes, that's right.
03-9627 +++$+++ 11186 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
03-9627 +++$+++ 11187 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So -- when -- when you -- when you fold that into the circumstances, it doesn't seem to me an overwhelming case for equitable tolling.
03-9627 +++$+++ 11188 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I have, I think, four responses to that. First, Mr. Pace was not sitting on his hands for these 4 years. This is a man who entered prison at age 17, barely educated, barely literate, drug-addled. This is not someone who was prepared to litigate on his own when he came into prison. This is someone who -- whose legal papers were destroyed by the prison. This is someone who was without counsel for that entire time that you're talking about. This is someone who had very limited access to a law library throughout that time. Mr. Pace spent those years teaching himself how to do law which he --
03-9627 +++$+++ 11189 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- take a whole lot to figure out that you have a claim where your lawyer told you -- you weren't going up for life and it turned out you were sent up for life.
03-9627 +++$+++ 11190 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In fact --
03-9627 +++$+++ 11191 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, what does it take if -- can a 17-year-old figure that something has gone wrong here?
03-9627 +++$+++ 11192 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in fact, that -- that claim was litigated -- litigated in the first petition, and in fact, he didn't think of that. If you look at his pro se PCHA petition, he didn't know that was a claim. It's a -- it's a form that he filled out and handed in and appointed counsel came up with that claim in the first post-conviction proceeding. This is much more complex than that. If you look at his briefs, which are in the joint appendix, Pennsylvania had a very complex system of law here where they had statutory bar rules but they had judicial exceptions to those rules. And it's not an easy matter for someone to figure that out. Mr. Pace educated himself. Just compare the pro se pleading filed in 1992 to what he filed in 1996, and you can see what he did during these 4 years. The other -- the other -- just -- my light is on, but just the other things I'd like to mention about that are that keep in mind, during this time there were no time limits on filing in either State or Federal court. The commonwealth has never alleged any prejudice from this time, and there's never been any allegation that Mr. Pace acted in bad faith and with any -- any intent to delay. In fact, this is someone who wanted to get his claims heard, wanted to figure out how to do it right, and did figure out how to do it right in the end. I would like to reserve the rest of my time.
03-9627 +++$+++ 11193 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You may.
03-9627 +++$+++ 11194 +++$+++ TRUE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
03-9627 +++$+++ 11195 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Eisenberg.
03-9627 +++$+++ 11197 +++$+++ FALSE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: I'd like to address the structure of the Pennsylvania filing deadlines for post-conviction review because I think they shed some light and need some discussion here. What Pennsylvania did was to establish a 1-year, flat time limit that applies to everybody. 1 year from conviction. It's automatic. It doesn't matter what the nature of your claims are. It doesn't matter when you discovered your claim. In order to comply with that time limit, all you have to do is file a post-conviction petition within 1 year of finality. The rest of the statute is essentially a separate set of filing deadlines for petitioners, for successive petitioners, for people who either have already had one round of post-conviction review or who haven't bothered to pursue it. Those people, said the legislature, are only going to be entitled to further post-conviction review, to additional rounds of post-conviction review if they fall into a particular class of claim that couldn't have been raised earlier. And -- and the legislature identified three classes that mirror the three provisions in the Federal statute of limitations. And if the petitioner falls within any of those classes, he then has 60 days from the time that that claim arose in order to come into court. Now, if a petitioner files a post-conviction petition and he's within a year of finality, those so-called exceptions don't come into play. They don't apply. He doesn't need to meet them. Those are for the second petitioner. So what Pennsylvania really has is a two-level system of statutes of -- of filing limitations. And of course, in order for the court to determine whether the petitioner has met the filing deadline, he has to look at these three classes for someone who has passed 1 year from finality. That's not an exception in the way I think that the petitioner and some of the lower courts have used the term at all. These are simply different kinds of filing limits. And of course, the court has to look at the statute and the nature of the claims to see whether review is available and to see whether the petitioner has sought review within the proper time. Nothing about that system makes those so-called exceptions not time limits. They're still time limits, and if you don't file in time and come within one of those classes, then the second petition, successive petition time limits don't apply to you and you're out of time.
03-9627 +++$+++ 11198 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, but if we accept your position, it seems to me that State prisoners are going to have to go but once to Federal court and then they're -- they're going to run into an exhaustion requirement.
03-9627 +++$+++ 11199 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they're not going to run into an exhaustion requirement, Your Honor, because if they've already been through one round of State post-conviction review, then they are unlikely to be able to exhaust more claims because there's a -- there's a --
03-9627 +++$+++ 11200 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, we're --
03-9627 +++$+++ 11201 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- 1-year time limit.
03-9627 +++$+++ 11202 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- we're assuming a late-discovered claim that's within AEDPA.
03-9627 +++$+++ 11203 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. And so the question is whether -- and what petitioner is really saying is that the AEDPA 1-year time limit should be suspended essentially indefinitely as long as the petitioner wants to argue that he may have some late-discovered claim in State court.
03-9627 +++$+++ 11204 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It -- it's my -- I still have a feeling that this is a limited universe. Now, my reason for thinking that is that the Federal statute says you have to file within a year of -- and then it lists four dates. And the middle two are special new cases, unusual probably. The first one and the fourth one are the important ones. The first one is final in the State courts, your first round, and the fourth one is newly discovered evidence. Now, my guess is most States also allow you for collateral -- to file collateral relief in those two circumstances. And in most States probably you get nearly a year from the same kind of event. So if you go after the year, you're out of luck in Federal court. If you're within the year, you're probably okay for the State. But there are a few States that have -- maybe Pennsylvania -- just 60 days from one of the events, newly discovered evidence, but a year for the Federal. So we're talking about people who file between 2 and 12 months. That -- that must be a pretty limited class.
03-9627 +++$+++ 11205 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's -- it's not, Your Honor.
03-9627 +++$+++ 11206 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's not?
03-9627 +++$+++ 11207 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and the reason that it's not --
03-9627 +++$+++ 11208 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But have I got it right? Have I got this complicated thing right?
03-9627 +++$+++ 11209 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Only -- it's -- that is true only for successive petitioners. For people who aren't satisfied with the round of direct appeal and a round of first -- of post-conviction review in State court. And so the question is whether the Federal statute should be interpreted in a way that essentially writes off the State's time requirements for the successive petitioner so that we can make sure that the successive petitioner can exhaust whatever new claims he wants to come up with in State court before he comes to Federal Circuit.
03-9627 +++$+++ 11210 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, let's --
03-9627 +++$+++ 11211 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What do I do it in a State where there is a plausible close question of whether or not the successive petition is barred in the State court? And I interrupted Justice Breyer, but I -- I think it's along the same line.
03-9627 +++$+++ 11212 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the general rule -- and this is implicit I think in the fact that Congress passed a statute of limitations. The general rule is that the petitioner is entitled to whatever he automatically gets in State court in order to exhaust a universe of claims, not all possible claims, but whatever claims can be exhausted within those guaranteed rounds of review. At that point, he should go to Federal court. If new claims arise after that, then Congress specifically provided for them in the second and successive petition procedure that it has in the Federal statute. The way that would interact --
03-9627 +++$+++ 11213 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But no -- there's still an exhaustion requirement.
03-9627 +++$+++ 11214 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The way that would interact with -- for exhaustion purposes with a State like Pennsylvania is this. The petitioner finishes his direct review. He finishes his post-conviction review. He has a set of clearly exhausted claims. He files a fully exhausted petition in Federal court. No Rose v. Lundy problem. If a new claim arises at that point, then he has to go to State court and try to exhaust that claim in State court. He can do that while a Federal petition is pending or even after a first Federal petition has already been disposed of. In fact, he may have to because the claim may not arise before the end of litigation in Federal court. When he gets to State court, he's either going to be deemed timely or not. Actually the fact that we have a 60-day time limit as opposed to a whole year helps him because it helps make it clear to him that he's got to come to State court at a point where he's really got a long time left to deal with Federal court because he's going to --
03-9627 +++$+++ 11215 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But isn't there a wrinkle to this? Isn't the wrinkle that even in cases in which you and I might say patently he's going to be out of time if he goes back to Federal court, the Third Circuit is requiring him to go there anyway, go through the formality of formal exhaustion, if you will, before they'll consider it? And isn't that a basis at least for equitable tolling?
03-9627 +++$+++ 11216 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect to your argument, the answer is absolutely not. First of all, as you have just observed, that's really an argument that goes to equitable tolling. Even petitioner doesn't bring in the Third Circuit law with respect to statutory tolling,
03-9627 +++$+++ 11217 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
03-9627 +++$+++ 11218 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ with respect to understanding the -- the language of the statute. As to equitable tolling, however, the factual premise is wrong. It's not true that the Third Circuit forces the defendant to go back to State court no matter what. In fact --
03-9627 +++$+++ 11219 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Help me -- help me out here because I -- I just don't remember well enough. I thought that's what Judge Giles was getting at when he said, you know, he would have been thrown if he hadn't gone through the State procedure. So help me out. Is that what he was getting at or not?
03-9627 +++$+++ 11220 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is what he was getting at but at a limited point in time, and the whole question for equitable tolling purposes was at what point in time. Nobody argues that the Third Circuit still is making everybody go back and do it no matter what. What the petitioner argued was that the Third Circuit case law, as of 1997 when he was first starting his second round of post-conviction review in State court, as of that time, he says, the Third Circuit case law said you have to go back no matter what even though Pennsylvania has a -- this new statute of limitations. That's not what the Third Circuit says, though. And all the cases that the petitioner relies on primarily -- he cites a -- a case called Doctor, a case called Banks, a case called Lambert. All of those cases were decided before the Pennsylvania courts began applying the new jurisdictional time bar in State court.
03-9627 +++$+++ 11221 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If that means the petitioner was wrong, doesn't it also mean that Judge Giles is wrong, and if Judge Giles can't figure it out, isn't there a pretty good argument that the petitioner ought to get equitable tolling?
03-9627 +++$+++ 11222 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there are a number of problems with the equitable tolling, Your Honor. But even taking that main one, that the petitioner made a mistake of law, that he didn't figure out correctly whether he was supposed to go back to State court, even on that point, Your Honor, that's not grounds for equitable tolling. You take a risk when you make a legal argument that it will fail. This legal argument was controlled entirely by State law, and what the Third Circuit, as opposed to Judge Giles who was reversed by the Third Circuit said, is that you have to look back to State law. What the Third Circuit has said -- and the -- one of the cases cited in our brief at page 49 is Walker v. Frank. Chief Judge Becker said no, we're not going to give equitable tolling to these defendants because at the very latest -- at the very latest -- they had to know by December of 1997 that they were going to be time-barred in State court. This petitioner filed --
03-9627 +++$+++ 11223 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but Judge Giles didn't understand it either.
03-9627 +++$+++ 11224 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Judge Giles didn't say that -- that the State law would never in the future be applied to these defendants. He said at this early time it was still unclear whether it would be applied.
03-9627 +++$+++ 11225 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So far as this case is concerned, yes. And -- and so if Judge Giles got it wrong, isn't there a pretty good argument for equitable tolling when the petitioner gets it wrong?
03-9627 +++$+++ 11226 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What there is is an argument that he had an argument to make in Federal court that he was not -- that he was still going to have the opportunity to go back to State court. But the problem is that Federal courts can't decide for the States how their time bars are going to be applied. And if instead they said --
03-9627 +++$+++ 11227 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but this argument is not trying to decide for the States. This argument basically is if nobody can figure it out, including a Federal district judge, at least give me the benefit of the doubt with equitable tolling.
03-9627 +++$+++ 11228 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not true that nobody could figure it out, Your Honor. In fact, all the cases that the petitioner cites in his brief from Federal district court judges who were sending defendants back to State court during this period because they said, well, maybe you'll get exhaustion anyway, maybe you'll be able to exhaust claims, of those cases that are cited in the brief, most of them are from the same one judge who kept saying the same thing over and over. Several of the other cases didn't even talk about the State time bar, and at that same period of time, there were other district judges who weren't sending defendants back, who were saying there's a new State time bar, you're barred in State court, and therefore, if you want to raise this claim in Federal court, you can, but you face procedural default.
03-9627 +++$+++ 11229 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if he had gone into the Federal court he went into, and he had not gone through this State procedure, he would have been turfed out.
03-9627 +++$+++ 11230 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You can't get equitable tolling, Your Honor, our position would be --
03-9627 +++$+++ 11231 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, answer that question --
03-9627 +++$+++ 11232 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry.
03-9627 +++$+++ 11233 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- before you tell me what the consequence is.
03-9627 +++$+++ 11234 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. That's what Judge Giles said many years after the fact. Do we know that's what Judge Giles would have ruled at the time? Perhaps. But there are other judges, Federal judges, who were ruling otherwise at the time, and the Third Circuit --
03-9627 +++$+++ 11235 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I mean, don't -- don't we have to take Judge Giles' statement as being a statement in good faith unless there is a pretty darned good reason not to?
03-9627 +++$+++ 11236 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The point is, Your Honor, that that's not the test for equitable tolling. There are all sorts of arguments that a defendant can make about why the law is unclear. It wouldn't have had to depend on the Federal court's understanding of this particular State law. A defendant could come along and he could say, well, I'm unclear about the application of (d)(2). I've got circuits like the Ninth Circuit who tell me that even if my petition is blatantly untimely in State court, it still tolls. I filed, knowing I was untimely in State court, because the Ninth Circuit tells me that I'm still going to get tolling, and now you tell me I'm not going to get tolling?
03-9627 +++$+++ 11237 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Let's suppose to get away from it -- can I go -- are you finished with equitable tolling because I want to go back to --
03-9627 +++$+++ 11238 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I have -- there are some -- really some -- some threshold problems with equitable tolling that --
03-9627 +++$+++ 11239 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I have a general question which is not Pennsylvania. I've looked up or got a rough idea of the statute of limitations for a first petition in many States, and most of them are a year or more. So there's no problem. But 11 have less than a year, and in particular, Oklahoma has 3 months apparently. And Oklahoma is -- a lot of death cases come out of Oklahoma. So what rule would -- where I have to have -- I focus on Oklahoma for the reason that I think this has bite only in death cases because I don't see why anybody would want to abuse the system except in a death case. But there are a lot there. Now, am I supposed to say in Oklahoma which has the 90 days but exceptions, that where somebody has filed a petition in State court, let's say, on the 180th day, and he thinks an exception applies, is he supposed to also run to Federal court and file a protective petition which could well have been dismissed on exhaustion grounds? What's he supposed to do and how is he supposed to know what to do? And one system that might work is Justice Scalia's idea.
03-9627 +++$+++ 11240 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's --
03-9627 +++$+++ 11241 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Another that might work is -- is requiring in death cases that it be a -- a plausible ground or something like that. I want to know your opinion of how to deal with that circumstance.
03-9627 +++$+++ 11242 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It certainly shouldn't be a plausible ground test, and even the petitioner agrees with that position, Your Honor. And it certainly would work if we adopted, as I think Congress did, a system like the one that Justice Scalia spelled out because then the defendant knows. And I'd like to get back, as I was discussing with Justice Kennedy, to what the defendant knows. He knows that if he's outside the time that he's guaranteed automatic review, whether direct appeal or State review, State post-conviction review, that his chances of exhausting more claims in State court --
03-9627 +++$+++ 11243 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Actually most prisoners are not represented, I don't think, at this stage. They -- they haven't a clue about the word exhaustion, and they haven't a clue about the statute of limitations. So they file a -- a paper in -- in the State court, and they say this roughly is what my problem is. Is that what happens, or are they all quite educated?
03-9627 +++$+++ 11244 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the -- the Congress that passed this statute of limitations is the same Congress that made the decision about whether habeas petitioners would be appointed counsel or not. So to say that we can't really apply the statute of limitations because it would be unfair as to those petitioners who are unrepresented would be essentially to undercut the statute of limitations --
03-9627 +++$+++ 11245 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm trying to get from you what is your opinion of a practical approach to this problem in Oklahoma, say.
03-9627 +++$+++ 11246 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The practical approach to the problem is to look at the statute that says you have a year. If you file your petition within that year, whatever you've got at the end of that year, you can take to Federal court and be confident that it's exhausted. If you want to do something after that year, you can't be confident anymore. All you have to do is -- is count a year. Now, if something comes up after that time, you're supposed to go to State court first, even if you've got something in Federal court. This statute of limitations isn't supposed to be interpreted in order to make the Federal successive petitions standard moot and unnecessary. It exists for a reason. So if a -- if a claim arises at a later point, after you have finished your guaranteed review in State court, go back to State court, whether or not you've got something pending in Federal court. Don't put that new claim in with your old claims in Federal court because then you have a mixed petition. If you get exhaustion in State court, whether you're timely or untimely, you're going to exhaust. You can then go back to Federal court with a request for a successive petition. It -- that's what you have to do and that's appropriate because that's how Congress set up the statute, with the 1-year filing deadline and -- and a provision for successive petitions.
03-9627 +++$+++ 11247 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask how you would handle a case that is a successive petition, a late -- a recently found claim, and the -- filed beyond the statute of limitations but the State has three exceptions to the statute, but it does not require that the -- the petitioner identify the exception in the petition? It just allows it for the judge to decide. Would there be tolling during the period in which the judge decided whether or not the petition was timely in your view?
03-9627 +++$+++ 11248 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, because all the court is doing is deciding whether the time bar applies, and in order -- in a State that has those kind of categories, what the court is, in effect, doing is deciding what kind of time limit applies to this particular petition.
03-9627 +++$+++ 11249 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And even if it takes a year or so to make that decision, you'd say no tolling.
03-9627 +++$+++ 11250 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that's really true of every kind of statute of limitations issue that can come up. Take away those three exceptions. Just have the 1-year flat time bar. Does that mean that the State court isn't going to have to take some time to look at it and decide? What if there's a prisoner mailbox question? What if there's an amendment question of the type that this Court just granted cert on last month in Mayle v. Felix? What if there's a question about how to compute --
03-9627 +++$+++ 11251 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And in all of those questions, you'd say there would be no tolling in order to find out whether it was timely or not.
03-9627 +++$+++ 11252 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right because during that time, the State court is deciding on timeliness, and if it's untimely, it was untimely as of the point of filing. That's what makes it a filing requirement. You take your claim and you file it --
03-9627 +++$+++ 11253 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what about the reasoning in Artuz that the application was -- if it turns out later it was timely, it would have been properly filed?
03-9627 +++$+++ 11254 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. I -- I think I understand Artuz to have said that if the application was untimely, then it was not properly filed and it was not properly filed from the get-go, Your Honor. The question that was reserved in Artuz is whether something about exceptions changes that statement in Artuz. And my response is that certainly nothing about the kind of exceptions that were present in this case changed the response.
03-9627 +++$+++ 11255 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but if I understand you correctly, you're saying that even if it takes the judge 6 months to decide whether it was timely, if he ends up with the conclusion that it was not timely, there would be no tolling for that 6-month period.
03-9627 +++$+++ 11256 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. Now, in Pennsylvania, of course, all you have to do to be timely is file within the 1 year. And whatever you've exhausted is done. That -- I'd like to go from that into expanding more on the equitable tolling because I think that that plays in here. This defendant had two rounds. The first round was 4 years, not even just 3, but I believe closer to 4 years before there was a filing deadline in either State court or Federal court. Now, when you decide to wait -- he didn't have a filing deadline, but when you decide to wait, you take your chances. There's a rule that's even more immutable than time limits or jurisdiction, and it is that things change. When you wait, you take the risk that your evidence may change, the facts may change, the law may change. That's what happened to this defendant while he sat and did nothing. He says he was learning the law during that period. Well, then would it -- is it just 4 years? What if it had taken him 8 years or 12 years to learn the law? He had the filing deadline that came up. He never claimed that he didn't understand what it was. He could have beaten any of those filing deadlines in State or Federal court. He says, I have no incentive for delay. I'm not a capital defendant. All I wanted was a speedy resolution of my claims. But in that case, he didn't need a filing deadline to make himself come to court. The fact is that there are thousands of cases in which noncapital defendants file these kinds of late petitions, and the State courts are trying to deal with them. And this is the way that Pennsylvania chose to try to deal with the problem in State court, in its State courts, not just for capital cases, but for noncapital cases.
03-9627 +++$+++ 11257 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why -- why are there thousands of cases in which noncapital defendants file this type of case? What -- what incentives do noncapital defendants have to drag it on?
03-9627 +++$+++ 11258 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The incentive that they have to drag it on is that they may come up with a new legal theory that attracts a -- a court that they didn't present before, that new facts may come up, may arise that they try to argue. That's what this defendant did, although they weren't really new. They were facts that were available to him as of the -- the day of his guilty plea in 1986. He claimed that they were new. And if there's no cost to doing that, if in fact there may be a benefit to doing that, then why not? If --
03-9627 +++$+++ 11259 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It seems -- it seems intuitive also that the prosecution's witnesses will be difficult to locate and so forth. Has -- has there been anything written about that, about prejudice to the prosecution from -- from delay, or is it just something we --
03-9627 +++$+++ 11260 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's certainly something that --
03-9627 +++$+++ 11261 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- we take judicial notice of?
03-9627 +++$+++ 11262 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's certainly something that any prosecutor would tell you, Your Honor. This -- this crime occurred 20 years ago in 1985. And this was a relatively simple case. A police officer came on to the scene while the defendant was bashing the head of the victim with a nightstick. But even in a simple case, you're going to have problems of proof, and the party with the primary problems of proof is the party with the burden of proof, and that's the prosecution. So, of course, there's going to be a problem for the prosecution, and that's why we adopt -- one of the reasons that we adopt this kind time limit. Even once the petitioner did come back to State court, though, Your Honor -- and this gets back to the questions that Justice O'Connor was raising initially -- he raised essentially the same claims. He says, well, this time around, I put them in a different guise, different facts in support of my claim about my guilty plea, different legal labels. Yes, but all in the context of -- of ineffective assistance because the only way he could get into court a second time for a second round of post-conviction review in Pennsylvania was to say that my lawyer at my first round of State post-conviction review was ineffective. He didn't attach these affidavits from my mother and father. He didn't call it due process instead of whatever else he called it. Now, petitioner could make those --
03-9627 +++$+++ 11263 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, he also raised an -- an entirely different claim, didn't he? I mean, it goes to ultimately the same point, but he raised the claim that the court had not engaged in an adequate colloquy --
03-9627 +++$+++ 11264 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The reason the colloquy wasn't adequate is precisely for the same reason that he was attacking his lawyers, in the petitioner's view, that it didn't explain to him the meaning of a life sentence.
03-9627 +++$+++ 11265 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right. But that -- the -- I mean, it's a different claim. The judge has an independent responsibility. It's not the lawyer's responsibility.
03-9627 +++$+++ 11266 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that's a claim that was waived if it was not presented in the first --
03-9627 +++$+++ 11267 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That -- that may be, but it is a different claim.
03-9627 +++$+++ 11268 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but --
03-9627 +++$+++ 11269 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It is not the claim of ineffective assistance.
03-9627 +++$+++ 11270 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the only way that the petitioner could exhaust that claim in State court on a second round of post-conviction review would be to put it in terms of ineffective assistance of first post-conviction counsel. And, of course, he can't then take that claim and come to Federal court because claims of the ineffectiveness of post-conviction counsel are not cognizable on Federal habeas review. So not only did he wait 4 years when he had no filing deadline impediments to come to court, but he then raised in State court claims that he couldn't have turned into exhausted Federal claims anyway in order to add to what was available to him, to the universe of claims that were available to him after his initial round of State post-conviction review. And we're talking about equitable tolling for somebody who only has a problem because of his own inaction for 4 years and who even then spent another 3 years in State court on claims that he couldn't bring to State court, and even then, in the face of developing State law about the time bar, refused to look at it. So not only did we have a statute that says you're in trouble, you're time-barred now --
03-9627 +++$+++ 11271 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Just as a matter of curiosity, is the transcript of the plea colloquy still available?
03-9627 +++$+++ 11272 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. It's in the appendix. And what the judge --
03-9627 +++$+++ 11273 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And was there the constitutional violation he alleges?
03-9627 +++$+++ 11274 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What the judge said three times is, you understand that your sentence will be life, and the petitioner said yes each time. Now, his claim later on -- and he's right. He didn't think that was his claim when he filed his first post-conviction review petition in 1986. He just thought his claim was that his plea was involuntary. Once he got counsel appointed, it turned out that his claim was, oh, my lawyer didn't specifically -- neither my lawyer nor the judge specifically told me that by life they meant life as opposed to something less than life.
03-9627 +++$+++ 11275 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The irony of this whole proceeding is it seems to me it would be a lot easier to decide the merits of that claim if the transcript is available than to get into all these issues --
03-9627 +++$+++ 11276 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but, Your Honor --
03-9627 +++$+++ 11277 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- we have today.
03-9627 +++$+++ 11278 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. That's what happened. That claim was litigated on the first round of post-conviction review and the State courts rejected it because of the transcript of the colloquy. The defendant could have taken that claim to Federal court in 1992. He just didn't. Now --
03-9627 +++$+++ 11279 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, he's a 17-year-old without any learning in the law. He probably didn't realize there's any requirement that these things have to appear in the transcript. I mean, that's understandable.
03-9627 +++$+++ 11280 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He -- he knew it appeared in the transcript. That was the basis of his claim in -- on State post-conviction review. He had not one but two lawyers appointed for that review and he litigated it on up through the State highest court. But even when he came back in 1996, he knew the statute was there. He's never claimed he was confused by the new time bar. He says, I thought I would get some exceptions to it. But then the State court came and said, no, it's jurisdictional, no exceptions. Defendant didn't do anything. It was 1997, still 2 years before he filed in Federal court. Didn't take note of that State -- he took note of it. He acknowledges in his pleadings that he knew about it, but he decided not to go to Federal court anyway. More -- more cases come out from the State courts, even the decision in his own court -- in his own case from the State's highest court. Even when we get to July of 1999 and the State supreme court denies review on the timeliness question in his own case, the petitioner says, even then how was I supposed to know that I wasn't going to get some kind of exception to the State time bar? I didn't know that until the next month when another case came out from the State supreme court. This was the third or the fourth from the State supreme court in somebody else's case. Only then in August of 1999 did I finally know that I was time-barred, meaning I knew then that I had never been getting any tolling, that for the last 3 years, I didn't have 1 day of tolling on my Federal claims. And at that point did he then go to Federal court? Even then he didn't. Even in August 1999 when the petitioner says, finally I know that I've been out of luck for the last 3 years, that I'm 3 years late to Federal court, does he rush in then? No. He waits another 5 months after August of 1999 to finally come to Federal court and say here's my petition, here's the claims that I've been working on and that I have litigated in State court. That's not equitable tolling, Your Honor. It's not equitable tolling under the circumstances of the specific circumstances of this case, and it's not equitable tolling in general when a petitioner claims essentially I have a mistake of law, I thought that I would win, I knew there were arguments against me, I knew I might lose those arguments, but I really thought I could win, and therefore you should give me equitable tolling while I pursue them.
03-9627 +++$+++ 11281 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Eisenberg.
03-9627 +++$+++ 11282 +++$+++ TRUE +++$+++ MR. EISENBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you very much.
03-9627 +++$+++ 11283 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Wycoff, you have about 4 minutes left.
03-9627 +++$+++ 11285 +++$+++ FALSE +++$+++ MR. WYCOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Several things. First of all, the respondent said that in the second petition Mr. Pace only presented State law, ineffective assistance of post-conviction claims, which are not Federal claims. That's absolutely not true. He presented the ineffective assistance of post-conviction counsel as a waiver-overcoming mechanism not as a substantive claim for relief. The substantive claims were due process claim, ineffective assistance of counsel, and new facts which needed to be exhausted under Third Circuit exhaustion law. Second, respondent suggested and -- and the Third Circuit also suggested that State law somehow became clear in mid-December 1997 when the Superior Court, which is Pennsylvania's intermediate court, decided a case called Alcorn. Alcorn was the first case to apply the time bar. But the Third Circuit itself, after Alcorn in the Lambert case, held that the -- the statutory language of the time bar is not dispositive and you have to exhaust even if you don't meet one of the statutory exceptions because the court may fashion judicial exceptions just like they did for all the other procedural bar rules. In fact, Pennsylvania in the Lambert case, in their opposition to the certiorari petition in May of 1998, said that that's a correct statement of Pennsylvania law, that there are judicially created exceptions, including the miscarriage of justice exception which will probably apply to the time bar, just like they applied to the other statutory bars. So Alcorn did not, even if it could have, since it's an intermediate court, it did not clear up the state of the law. The law did not become clear as to the specific things that Mr. Pace alleged, which is the miscarriage of justice exception under Pennsylvania law and the illegal sentence exception, judicially created exceptions to bar, were not rejected by the Pennsylvania Supreme Court until July of -- I'm sorry -- August of 1999, which is -- by that time Mr. Pace was already out of State court so those -- the law became clear in State court after he was already done litigating. The Third Circuit did not actually find the statutory language of the PCRA time bar dispositive of the exhaustion question until March of 2000. The district courts, not just Judge Giles, Chief Judge Giles' 20 years experience on the bench, not just him, lots of district courts send people back to exhaust during this same time period. State law was unclear. State law appeared to provide remedies and possible merits review. Because the State law was unclear, Third Circuit exhaustion law required petitioners like Mr. Pace to go back and exhaust. And he did exactly what the circuit law required of him. And as a matter of equity, the court cannot punish someone. A Federal court can't say, do X, and then after that person does it, say, sorry, you're out of court. It's not fair and it shouldn't happen here. As to statutory tolling, I just want to -- the -- the Court I think can just easily decide this case just by reaffirming the central holding of Artuz which is when a State court allows you to file, gives your filing judicial review, applies a bar rule on a claim-by-claim basis, that was a condition to obtaining relief on claims in the petition. It's not a condition to filing the petition itself. And if the State court eventually holds all your claims are barred, as they did in Artuz, the petition is, nevertheless, properly filed and should toll AEDPA's statutory -- under AEDPA's statutory tolling provisions. If there are no further questions.
03-9627 +++$+++ 11286 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Wycoff. The case is submitted.
03-9659 +++$+++ 11290 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument now in the case of Miller-El against Dretke. Mr. Waxman.
03-9659 +++$+++ 11292 +++$+++ FALSE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: In Hernandez v. New York, this Court explained that there are exceptional cases in which the totality of evidence surrounding jury selection is so strong that a finding of no discrimination is simply too incredible to be accepted by this Court. This is that exceptional case, a case in which even on collateral review, the sheer weight of the mutually reinforcing evidence renders objectively unreasonable the State court's conclusion that race did not motivate even one of the prosecution's peremptory strikes.
03-9659 +++$+++ 11293 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do we have to find that the strike of at least one African American prospective juror was race-based for you to prevail?
03-9659 +++$+++ 11294 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe so. You have to find, Justice O'Connor, that race was the but-for factor or the tipping factor, not the only factor, but the but-for factor for at least one to come within the four corners of Batson. Now, I could argue I think, if I needed to in this case, that the jury shuffle evidence alone, which is an unexplained, blatantly race-based means of racially excluding jurors from the venire, comes within Batson, the Batson proscription itself, or I could argue that case too.
03-9659 +++$+++ 11295 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Were there any -- were there any State decisions, or Federal court decisions for that matter, justifying the shuffle on the grounds of -- I don't know -- professional class versus working class or something like that?
03-9659 +++$+++ 11296 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The State has in its brief in this case, on this trip to the Court -- the State has cited the Court to one other case in which the Court of Criminal Appeals acknowledged the State's justification in that case, that it shuffled because there was a member of the probation office in the front row that they didn't want to embarrass and that jurors in the front had tended more to have ties than jurors in the back. That is -- that was never claimed in this case. We have, from the very --
03-9659 +++$+++ 11297 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Were there -- were there any State court cases said that -- or even in that case you're referring to -- that the shuffle usually is race-based?
03-9659 +++$+++ 11298 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You know, I can't -- the case is called Ladd v. State. There is -- there's some -- now some reasonably substantial Law Review commentary in the State of Texas. I cited the Court to -- to one in the Houston Law Review or the Houston Bar Review when I was here last time, and there has since been one in the St. Mary's Law Review that says this is a procedure that is used to discriminate on the basis of visual preference. And what's particularly interesting about it in this case is there was a contemporaneous objection in week 2 and week 3 and week 4 that the State was doing this based on race, and the State offered no defense at the time. It offered no defense in the subsequent Batson hearing. It had no explanation before the magistrate, the district judge, the Fifth Circuit, in this Court or below, and now in this Court this time it says, well, there's this other case in which the reason given was that we didn't want to embarrass the probation officer and we didn't -- and we had people who had ties in the front row. There is no evidence whatsoever in the record that would justify those excuses here. And the evidence in the -- the only evidence in the record that seems to me compels the conclusion that this was done for the deliberate purpose of minimizing the number of African Americans on the jury. And it was done by prosecutors, each of whom -- there were two prosecutors in this case, each of whom was found to have violated Batson in criminal -- other criminal trials contemporaneous with this one. And --
03-9659 +++$+++ 11299 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the -- and the Fifth Circuit's answer to the jury shuffle was, well, the defense shuffled more times, as I --
03-9659 +++$+++ 11300 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Fifth --
03-9659 +++$+++ 11301 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- as I recall.
03-9659 +++$+++ 11302 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the Fifth Circuit said that we -- that they shuffled twice and we shuffled five times. Now, that is both factually wrong and legally irrelevant. They shuffled three times and they tried to shuffle a four times -- a fourth time because, the Court will perhaps recall -- this was discussed in the Court's last opinion -- because they waived in the fourth week. The defense shuffled -- the defense then shuffled and they tried to come in and back -- back and shuffle again when a number of African Americans were advanced in the order. There -- under this Court's Batson jurisprudence, the proscription against using peremptory strikes for a racial purpose or a gender-based purpose is proscribed to the defense, as well as the prosecution, but there -- the one doesn't excuse the other, and there has never been a claim, nor is there a factual predicate laid in this case for a claim, that Mr. Miller-El's trial lawyers were doing the same. Even if it were true, it would not justify what they did. Now --
03-9659 +++$+++ 11303 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If -- if we find or if there is a finding that the -- that the attempted shuffle on this fifth try was race-based, does that win your case, even though the shuffle didn't take place?
03-9659 +++$+++ 11304 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it was the --
03-9659 +++$+++ 11305 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, does it show the necessary animus so that it carries through the whole case?
03-9659 +++$+++ 11306 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think, if I needed to -- I mean, we -- we've argued that the shuffle, just like the race coding of the cards in the pre-Batson era, the disparate questioning on minimum punishment and the graphic script, all reinforce what we think the record shows with respect to each of the six peremptory strikes that we challenge But if we didn't have that, Justice Kennedy, I would be here arguing that if I could show a single strike that was made for the purpose of eliminating African Americans from being considered for jury service, that that ought to come within this Court's proscription of Batson. Now, we haven't made that freestanding claim because I don't think we need that freestanding claim. The jury shuffle is a practice that exists only in the State of Texas and, to my understanding, has ever existed only in the State of Texas. So it's a -- it's a very peculiar phenomenon, but I think I could make the argument that, look, even if there weren't any of these six -- let's say they shuffled it so successfully that no African Americans came up. There simply were no African Americans out of the 108 who were questioned. It seems to me that that in and of itself would violate at least a generous reading of Batson.
03-9659 +++$+++ 11307 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Waxman, we really have to examine your -- you know, your allegations, I suppose, one at a time. It makes it a very complicated case. The -- the State's response to -- to your argument that two of -- of the State's attorneys involved in this case had been found to have made racially based strikes in the past -- the State's response to that is that that was not part of the evidence presented in State court, and therefore, it -- it is not a proper consideration in reviewing the State court decision. What -- what is your response to that?
03-9659 +++$+++ 11308 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's wrong. I think it's wrong, first of all, because those two cases had been decided by the Court of Criminal Appeals at the time it considered the Batson claim in this case.
03-9659 +++$+++ 11309 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was it brought to the attention of the court?
03-9659 +++$+++ 11310 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I am not sure. I don't have the -- neither the transcript nor the briefs are available for that argument. But it's -- the court -- they are judicial decisions of that court. The Court can take judicial notice of them and they are evidence.
03-9659 +++$+++ 11311 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, my. You mean anything out there that -- that a court could take judicial notice of can be -- can be charged to the court? My goodness, no. I think it was the burden of the -- of the defendant challenging the -- the strikes to bring -- bring that to the attention of the court. My goodness.
03-9659 +++$+++ 11312 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Even -- I understand your argument. I can't tell you for sure -- and I don't believe anybody can -- whether those cases were or weren't argued before the Texas Court of Criminal Appeals because my understanding is -- I don't -- I have not seen the briefs that were filed in the Batson appeal, and I don't have the transcript of the argument.
03-9659 +++$+++ 11313 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Were -- were both of the cases cases of the Texas Court of Criminal Appeals?
03-9659 +++$+++ 11314 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, yes.
03-9659 +++$+++ 11315 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Decided by the court -- the Texas Court of Criminal Appeals.
03-9659 +++$+++ 11316 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The -- the very same court. And in any event --
03-9659 +++$+++ 11317 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, now, Nelson -- there's Macaluso?
03-9659 +++$+++ 11318 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Macaluso.
03-9659 +++$+++ 11319 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Macaluso and Nelson. Nelson wasn't involved in the jury selection in this case, was he? He came in --
03-9659 +++$+++ 11320 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He certainly was.
03-9659 +++$+++ 11321 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought he came in after -- after the jury had been selected.
03-9659 +++$+++ 11322 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. That was Mr. Kinne had the chickenpox, so the jury was -- the -- the voir dire took place. Mr. Macaluso and Mr. Nelson alternated the voir dire examination in the case, and those were the two prosecutors, Mr. Macaluso in the other Miller-El -- in the Chambers case and Mr. Nelson in Mrs. Miller-El's case. And interestingly, what the Texas Court of Criminal Appeals said with respect to Mr. Macaluso in the Chambers case is not only that he removed five out of five African Americans for reasons that violate Batson, but the Texas Court of Criminal Appeals also noted that he was using the same minimum punishment ploy that he used in this case in order to disqualify African American jurors. He -- the court actually goes and says, you know, with three of these people, the State tried to disqualify them by asking them an open-ended question about what they thought the minimum punishment should be even though that's usually what the defense is concerned about. Precisely what happened in this case. Now, I'm not suggesting, Justice Scalia, that our case depends upon the -- this 404(b) evidence or not, and I think it's quite --
03-9659 +++$+++ 11323 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, that's the problem. We've got to go through each one of them one by one.
03-9659 +++$+++ 11324 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I --
03-9659 +++$+++ 11325 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And -- and I'm -- you know, I don't remember the names of people involved in -- in prior cases in this Court. I -- I -- you know, if we said --
03-9659 +++$+++ 11326 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice --
03-9659 +++$+++ 11327 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- you had this same officer before you, my goodness, I -- I wouldn't remember it.
03-9659 +++$+++ 11328 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, a -- first of all, these -- each of these cases was tried within months of Mr. Miller-El's case, and a finding by a -- the State's highest court that a prosecutor has engaged in intentional, deliberate, race discrimination in the selection of a jury I respectfully submit -- I certainly hope is not the kind of everyday finding that is easily forgotten. But in any event, you -- yes. You have to go through all of the evidence in the case, and what the evidence in the case shows is that, first of all, as this Court observed the last time it was here, the State's proper race-neutral rationales for striking African American jurors pertains just as well to white jurors who were not challenged and who did serve. It's -- you also have to look at the race-coding of the cards, race-coding that was done by prosecutors whom this Court observed last time were trained in an office culture suffused with bias against African Americans in jury selection. And you also have to look at, with respect, the remarkable disparity in the way in which African American and white venire members were questioned, both with respect to minimum punishment --
03-9659 +++$+++ 11329 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I --
03-9659 +++$+++ 11330 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and with respect to the graphic script.
03-9659 +++$+++ 11331 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask on the minimum punishment ploy? Did that ever work in this case or did any of -- of the trial judges ever grant a -- a challenge for cause on the basis of the use of the minimum punishment ploy?
03-9659 +++$+++ 11332 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I can't speak to other cases. But what's truly remarkable about this case -- I mean, there are many things that are truly remarkable about this case -- the State not only used this minimum punishment ploy with 90 -- 7 out of 8 of the African Americans, as opposed to only 2 out of 36 of the whites, but it actually tried to remove 2 of the African Americans in this case: Rand and Kennedy. It submitted them for cause based on their answers to those questions. And then interestingly, when that was denied and the State had to justify its -- to provide its race-neutral reasons for striking them, it didn't even mention it.
03-9659 +++$+++ 11333 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Their response --
03-9659 +++$+++ 11334 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you -- you haven't really answered my question yet.
03-9659 +++$+++ 11335 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, I'm sorry.
03-9659 +++$+++ 11336 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does any -- did any Texas trial judge, to your knowledge, ever fall for this ploy, ever grant him a -- a challenge for cause based on answers to the minimum punishment harangue?
03-9659 +++$+++ 11337 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I would defer to Ms. Bunn about that because I don't know about other cases, but --
03-9659 +++$+++ 11338 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I didn't see any in this case.
03-9659 +++$+++ 11339 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what happened in this case was there was an effort to rehabilitate. The trial judge actually became quite energetic in trying to explain to the juror that, well, it's 5 years and you're not saying that you couldn't possibly consider 5 years. But -- and that was true with respect to white jurors as well as African American jurors.
03-9659 +++$+++ 11340 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The respondent's reply to this -- this minimal punishment argument is that in fact the -- the two white prospective jurors who had -- who had expressed antagonism towards the death penalty were subjected to the same questioning, and that the seven out of eight black prospective jurors were seven who had expressed antagonism to the death penalty. Now, is that not true?
03-9659 +++$+++ 11341 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that if I -- I believe that with respect to minimum punishment, as opposed to the graphic script, what the State is saying is last time we said there were 10 whites and 10 blacks who expressed hesitation. And this Court observed that, well, yes, but only two of the whites got it. Now, they filed a brief that says, well, the other eight were all either struck for cause or by consent. Now, that's -- that fails for at least two reasons. One, they identified 10. In this Court and below, we identified 19 jurors who absolutely expressed hesitation about the death penalty, and they have still not accounted for them. Number one. Number two, with respect to the eight who they have accounted for in their brief, the fact that at the very end of voir dire, they were struck for cause, or there was an agreement at the end of voir dire to remove them hardly provides a reason not to give the minimum punishment ploy to jurors who fit the categorization that the State has described.
03-9659 +++$+++ 11342 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, we have to go through each one of them and see if the degree of hostility expressed by the white jurors was the same as the degree of hostility expressed by the black jurors. And in fact, the degree of hostility by the black jurors was quite high.
03-9659 +++$+++ 11343 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
03-9659 +++$+++ 11344 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ One said I really don't believe in it. I support it only in extreme cases, such as those involving mass killings or mutilation. And another one -- another one said, well, right now maybe I do, but who knows later?
03-9659 +++$+++ 11345 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
03-9659 +++$+++ 11346 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now, if -- if there happens to be a different attitude towards the death penalty among the black jurors than there is among the white jurors, you cannot fault the -- the attorneys for -- for striking more of the black jurors.
03-9659 +++$+++ 11347 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, in the context of all of this other evidence, which is the context in which you need to weigh it and determine whether we have satisfied the stringent standard for review that applies, I respectfully submit that if you go through the -- the voir dire questioning of Mr. Fields and Mr. Warren and Mr. Rand and the others that we've mentioned, and compare it, even leaving aside all of the other evidence, contemporaneous evidence, of race discrimination in the jury selection in this case, I think you will have to come to the conclusion that race was a but-for factor in these cases. In Mr. Fields -- we've -- we've mentioned him in our -- we've described him at length in our brief. This is a man whom -- I mean, forget the -- the State on its questionnaire at the time, on page 14 of the joint lodging, wrote, quote, no reservations against the death penalty. Mr. Rand, who we've compared and -- and your concurring opinion, Justice Scalia, the last time it was here said, well, yes, Rand and Mazza are very close, but it's a high burden you have to -- you have to overcome here. It's a burden we can overcome here not only because of all of this other evidence, but because of what the State wrote on the questionnaire when Mr. Rand was being examined, page 30 of the joint lodging. This is the State's notes, Quote: "could be enforced depending on the circumstances -- Murder/robbery, type of offense -- Think proper for death penalty -- Yes, I can serve." This is a -- this is a venireman who said that if he were Governor, he would set the minimum punishment for murder at 99 years. Mr. Fields was --
03-9659 +++$+++ 11348 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, now, wait. He also said -- when asked whether he could vote to impose the death penalty, he said, right now I say I can, but tomorrow I might not.
03-9659 +++$+++ 11349 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He said --
03-9659 +++$+++ 11350 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think that's a strong --
03-9659 +++$+++ 11351 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm -- I'm not sure whether that's Rand or Warren, but I'm saying that if you compare Mr. Rand who thought that the death penalty might be applicable for all murder, who repeatedly -- in our reply brief, we include the -- the recitation -- repeatedly said over and over and over and over again that he would answer the three questions yes, depending on the evidence, without any regard for his view about the death penalty, who testified that -- I'm not saying that this is somebody whom, if this were a case in which there was nothing in this -- we were just before this Court saying there's Rand and Mazza or there's Rand and Hearn and that's enough to satisfy our burden, I would be up here arguing it but it would be a much more difficult argument. Here, those -- that comparison has to be taken in the context of not one, not two, but six jurors who are similarly situated who were treated to this questioning by people who engaged in racially disparate shuffling, racially disparate questioning --
03-9659 +++$+++ 11352 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's the question.
03-9659 +++$+++ 11353 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We have to deal with each of the six one by one, and -- and they have arguments with respect to each of them. I don't care what Rand said. Those things that you said sounded very good. But if he finishes it off by saying, right now I say that, but tomorrow I might not --
03-9659 +++$+++ 11354 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I --
03-9659 +++$+++ 11355 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that doesn't strike me -- and that -- that's what respondent says Rand said, not -- not one of the other ones. And you have to go down each of the other six, and they have a response for each one.
03-9659 +++$+++ 11356 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And if this --
03-9659 +++$+++ 11357 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, and -- and, you know, a buckshot attack on it has to be examined pellet by pellet.
03-9659 +++$+++ 11358 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice -- let me -- let me switch your metaphor a little. The problem with the State's approach to this case -- and it was the problem that -- of the Fifth Circuit's analysis -- is it is pointillistic. It is an analysis. It's like walking up close to a Seurat painting and looking at each dot and saying, well, it's red, but that might not necessarily be the handbag. Yes, you have -- I mean, he had to paint with the dots, but as a reviewing court, you need to step back and look at this and ask yourself, with respect to, for example, Mr. Fields, who said not only would he have no hesitation about putting the death penalty in place, but he actually testified that he thought that in capital cases, the State was God's embodiment on earth.
03-9659 +++$+++ 11359 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose that you have 10 white jurors and 10 black jurors. The 10 black jurors are all questioned much more extensively by the State, and in each of those cases, there is a plausible reason for excusing. A relative was -- served time and so forth. Violation?
03-9659 +++$+++ 11360 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ All in and of itself? I would say definitely not. I -- I mean --
03-9659 +++$+++ 11361 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so then you admit that you have to go one by one. I had thought you would -- would have said that if the black jurors are questioned in a different way and more intensively, that alone suffices even though the questioning in each case disclosed the basis, plausible, non-racial basis --
03-9659 +++$+++ 11362 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I would give --
03-9659 +++$+++ 11363 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- for excusing them.
03-9659 +++$+++ 11364 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would give you a different answer, Justice Kennedy, if it's the jury shuffle because there's no plausible explanation available on the evidence in this case. If there is a plausible explanation for disparate questioning, which there is not in the statistics in this case, I wouldn't be arguing that that in and of itself, leaving aside individual, you know, side-by-side juror comparisons, would suffice. But here, we have, in addition to the disparate questioning that is not susceptible to a race-neutral explanation -- we have things like the prosecutor's own notations in the -- in the questionnaires.
03-9659 +++$+++ 11365 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Waxman, you were dealing with Fields, and the answer in Fields' case that the prosecution gives is he had a strong feeling about rehabilitation, and so he was -- he thought that everyone could be rehabilitated -- rehabilitated. So that shows he -- he wasn't like others who didn't entertain those doubts about rehabilitation.
03-9659 +++$+++ 11366 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice -- Justice Ginsburg. He -- he expressed an opinion that he thought that people could be rehabilitated, not as strong as those opinions by juror -- white Juror Hearn and white Juror Duke who sat. But in Fields' case, he was absolutely unequivocal -- I'm -- I'm referring the Court to page 185 of the joint appendix -- absolutely unequivocal that the ability or propensity for rehabilitation would not affect his willingness to -- to put in the death penalty. I believe in the dissenting and concurring opinions in this case last time with respect to Mr. Fields, it was pointed out that he was a supporter of the death penalty who could put in the death penalty. And what's interesting about Fields is if you look at the transcript pages where the prosecutor justifies the strike, on page 197 of the joint appendix, the prosecutor says, well, he was -- he -- he -- I -- he -- he said something about rehabilitation, and it goes on. And then two pages later -- they have a discussion about something -- a discussion about which questionnaires will or won't go into evidence. Two pages later, Mr. Nelson comes in and says, oh, yes, and he also had a brother who had had some involvement with law enforcement. Well, to say that that's an afterthought is really saying something. He wasn't questioned about it, as -- as neither were -- by the State, as neither were any of the four white jurors who sat who had family members who had been arrested or prosecuted. They didn't even ask these questions. May I reserve the balance of my --
03-9659 +++$+++ 11367 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was there any evidence that the jury cards in this -- in the actual trial were marked or noted on the basis of race?
03-9659 +++$+++ 11368 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, absolutely.
03-9659 +++$+++ 11369 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where do we find that evidence?
03-9659 +++$+++ 11370 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the juror cards are in the joint lodging beginning on page 82, and every single card lists the gender and race, even the cards as to jurors that they never questioned. So we know that these were notations that were placed on the cards by the prosecutors at the time the venires were called. And the interesting thing about these is it's not just race and gender, it's were they fat, did they have a beard, did they have a mustache. If you map up what's noted on these cards with the Sparling training manual that said don't take minorities, don't take Jews, don't take women, don't take fat people -- people who have mustaches and beards don't make good jurors. It's -- these prosecutors were not only trained by that manual, they learned their lesson very well. May --
03-9659 +++$+++ 11371 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All of those things are okay, right, except the race one.
03-9659 +++$+++ 11372 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I --
03-9659 +++$+++ 11373 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, maybe their right about beards and mustaches.
03-9659 +++$+++ 11374 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We know that --
03-9659 +++$+++ 11375 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't know. If they're right, good for them. Right? You -- you -- they ought to strike them.
03-9659 +++$+++ 11376 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- we're not here -- if this were gender or race, this Court has said that can't be the but-for reason. Mustaches, overweight, you know, go with God. May I -- may I reserve the balance of my time?
03-9659 +++$+++ 11377 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, by all means.
03-9659 +++$+++ 11378 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
03-9659 +++$+++ 11379 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Bunn.
03-9659 +++$+++ 11381 +++$+++ FALSE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: The big picture. The majority of African Americans summoned for jury duty in this case were either opposed to the death penalty generally or unwilling to impose it, while the majority of white jurors had no qualms about the death penalty. Striking prospective jurors based on their case-related views which, after the fact, correlate with race is not unconstitutional. Essentially, though Miller-El has presented this case as one of disparate treatment, it is actually one of disparate impact. I will discuss first --
03-9659 +++$+++ 11382 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would -- would the statement that you gave -- let's assume there was a -- a working premise that blacks were more -- were less inclined to impose the death penalty. Would that alone justify more intensive questioning of every black juror?
03-9659 +++$+++ 11383 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, it would not. And the record in this case actually does not support that that -- does not support a proposition that black jurors were questioned differently. Most significantly, the minimum -- the questioning on the graphic script. Of the six challenged jurors in this case, only two received the graphic -- graphic script at the outset of their voir dire, Carrol Boggess and -- and Wayman Kennedy, both of whom had answered the questions in their juror questionnaire indicating ambiguity regarding their views on the death penalty regarding their support for the death penalty. This fact --
03-9659 +++$+++ 11384 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now -- now, as I understand it, this case was here before. We all read this and we went through it, and as a result of that, I -- if I read the opinion -- not the dissent, but the majority opinion -- and it might be in my interest if people followed dissents more, but I think the law is we follow the majority opinion. So when I read the majority opinion, I read, number one, there was history in this county, at least 7 years earlier though, where they actually had a booklet which said let's keep all the African Americans out, here's how you do it. Then you had jury shuffling, which were two instances. In one of them, there are like 40 people. In my mind, you know, we have rows. In row 1 there are four black jurors and six white; row 2, three black and seven white; row 3, two black and in the last row one black, and the prosecution says, hey, let's shuffle it. All right? And the other time he did it, the only other time -- it wasn't quite that bad -- the same idea. Then the third thing that comes up is you find instances here -- not everyone, absolutely right -- but instances where black people who seemed really for the death penalty, say, like Mr. Fields manages to get knocked off, but Mrs. Mazza who seems quite uncertain is kept on. And then we have this disparate questioning that you're about to mention where it just turns out that almost every black is given this really -- you know, bring them in a gurney, put -- put -- you know, real graphic description of the death penalty, and white people who also expressed hesitation aren't. Okay? So on the basis of that, the majority writes there is, indeed, a strong suspicion here that this was discrimination. So I want to ask you -- and if I were to write something like that -- I didn't write the words, but I would mean, well, I think that's what it is unless there's something later on that comes out to the contrary. So I'm asking you what was to the contrary. What came out in this Fifth Circuit that we didn't have in front of us the last time?
03-9659 +++$+++ 11385 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the first time before this Court, the issue was whether, based on a threshold examination of the record --
03-9659 +++$+++ 11386 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I know that was the issue, but I'm saying if I read the opinion to say -- now, maybe you'll tell me I shouldn't. We should just go back and redo what we did. But I'm reading the opinion to say, well, unless something changes here, this is bad. It's discriminatory. Now, you can tell me, one, I'm wrong to read the opinion that way. I got that argument. But I want to be sure that that's what's in front of me. So I want to know is there something different in the Fifth Circuit that wasn't here the first time.
03-9659 +++$+++ 11387 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I believe the most -- the most important difference in the review of this Court the last time and the review of this -- of the Court this time is that the Court did take a big-picture look at all of the pieces of evidence, but at this point, as the court of appeals did and as this -- as this Court must do now, it must go, as Justice Scalia mentioned, juror by juror, the jurors who were challenged. Miller-El --
03-9659 +++$+++ 11388 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ We only speak to the issues before us, don't we? And the issue before us last time was not the issue before us here. It was simply whether there was enough evidence to require the issuance of a COA. Isn't that right?
03-9659 +++$+++ 11389 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct.
03-9659 +++$+++ 11390 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right. That's why I asked.
03-9659 +++$+++ 11391 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And that's a good deal different. Whatever the majority might have said about other issues, it certainly was not binding on the court of appeals, was it?
03-9659 +++$+++ 11392 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor.
03-9659 +++$+++ 11393 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I hate to say this --
03-9659 +++$+++ 11394 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So that must be a different question --
03-9659 +++$+++ 11395 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- to my colleagues, but I'm very much interested in hearing what Ms. Bunn has to say.
03-9659 +++$+++ 11396 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- because that wasn't the one I asked. The one I wanted answered was the question of I understand that point, which we could say it was definitely not definite the last time. I'm asking you -- it's a serious question -- as whether there was something new or different that came up when the Fifth Circuit wrote this. Now, I gathered from your answer, it might be yes, and if the answer is yes, I want you to say what it is because I'm interested.
03-9659 +++$+++ 11397 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, there was additional analysis, particularly of the six jurors Miller-El claims were discriminated against, which this Court did not review the first -- in its first opinion specifically. And a review of Miller-El's purposeful discrimination claim must focus on these six jurors. And given the -- the views expressed by these six veniremen, it is no surprise that prosecutors struck them. Each venire member peremptorily struck by the State had voiced views unfavorable to the State but were not subject to a challenge for cause. These reasons are race-neutral, case-related, and supported by the record, in fact, supported by the very words that the jurors uttered. Carrol Boggess indicated that her beliefs -- on the questionnaire indicated her beliefs would impair -- would impair her ability to impose the death penalty as a juror. She referred to her -- an execution as a murder during her voir dire and other comments evincing hesitance regarding her ability to impose the death penalty.
03-9659 +++$+++ 11398 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you this? There are two questions just generally. One, I'm curious about the answer to my question to -- to Mr. Waxman. Did the minimum punishment ploy ever work? Did it ever succeed in getting a challenge for cause granted?
03-9659 +++$+++ 11399 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, there are other cases that I'm aware of in Texas where the State did challenge jurors on this basis. Whether there was any questioning -- any difference in questioning, I don't know. It's not apparent from the records.
03-9659 +++$+++ 11400 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But have -- and the challenges were granted?
03-9659 +++$+++ 11401 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
03-9659 +++$+++ 11402 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, none of them were granted in this case. Is that right?
03-9659 +++$+++ 11403 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
03-9659 +++$+++ 11404 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it -- it was true that this was -- was a ploy adopted for the purpose of trying to make it unnecessary to use a -- a peremptory challenge.
03-9659 +++$+++ 11405 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. Yes, Your Honor, that is right.
03-9659 +++$+++ 11406 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And do you defend that practice?
03-9659 +++$+++ 11407 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, if it is a legitimate tactic, recognized -- as an attorney, if there is a -- some means that is available to use so that you do not have to use a peremptory strike --
03-9659 +++$+++ 11408 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you -- if you can get the venire person to make a mistake in his answer, then you -- you get -- get him off easy.
03-9659 +++$+++ 11409 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's what -- that's what voir dire is all about, and the defense counsel did it in many occasions --
03-9659 +++$+++ 11410 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And suppose -- suppose you have a system in which that attempt to find cause is applied much more rigorously to black prospective jurors than to white prospective jurors.
03-9659 +++$+++ 11411 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If it's not -- the record shows that there's no difference in the views expressed by the jurors, yes. In this case that --
03-9659 +++$+++ 11412 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. The -- the white jurors don't express the views at all because they're not questioned intensively, so you don't know if there's cause for them or not. But the black jurors are questioned intensively, and you find cause or -- or a -- a race-neutral reason for the dismissal. Is there a Batson violation in -- in that instance?
03-9659 +++$+++ 11413 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, not a Batson violation. Now, whether it's evidence of -- of --
03-9659 +++$+++ 11414 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So -- so you say that in any case you can question black jurors more intensively than white jurors and still succeed in excusing them if the result of that voir dire shows some race-neutral basis.
03-9659 +++$+++ 11415 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if the questioning itself results in the views that are the basis of the strike, that would present a problem. That is not the case here, however, where the -- the disparate questioning on minimum sentencing, for instance, was based on the views that were expressed.
03-9659 +++$+++ 11416 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose -- suppose you have a manual of -- from the district attorney's office that says all black jurors shall be questioned more intensively than white jurors.
03-9659 +++$+++ 11417 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would certainly be evidence that black jurors and white jurors were treated differently.
03-9659 +++$+++ 11418 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You're saying that that is not what happened here.
03-9659 +++$+++ 11419 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-9659 +++$+++ 11420 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It was on the basis of the questionnaires expressing hostility to the death penalty that more intensive questioning was given to some people than to others, and that the mere fact that a larger number of those people was black is not a violation.
03-9659 +++$+++ 11421 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, that is correct.
03-9659 +++$+++ 11422 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So the hypothetical, assuming that you -- you just have blacks and whites with no difference in -- in what they -- in what they had said on the questionnaire, is a hypothetical that you say does not exist in this case.
03-9659 +++$+++ 11423 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
03-9659 +++$+++ 11424 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but you don't know what the questionnaire showed as to most of the white venire persons, do you?
03-9659 +++$+++ 11425 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, we don't, Your Honor.
03-9659 +++$+++ 11426 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And how many white venire persons were there?
03-9659 +++$+++ 11427 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 48.
03-9659 +++$+++ 11428 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ 48. And how many were given this questioning? Two?
03-9659 +++$+++ 11429 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ On the graphic script?
03-9659 +++$+++ 11430 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
03-9659 +++$+++ 11431 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Two -- three.
03-9659 +++$+++ 11432 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so are we to assume that all 46 of the other white venire persons were as tough on the death penalty as you'd like everybody to be?
03-9659 +++$+++ 11433 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor.
03-9659 +++$+++ 11434 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We just don't know about those other 46, do we?
03-9659 +++$+++ 11435 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do not know. We do not --
03-9659 +++$+++ 11436 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But is it not a reasonable inference that some of them might have expressed doubt about the death penalty?
03-9659 +++$+++ 11437 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is -- we do not know. There -- even though we do not know --
03-9659 +++$+++ 11438 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't know. If you don't know, you -- there's an excellent way to know. Somebody says, you know, Mr. Prosecutor, you gave this terribly graphic script to all the black people and you really didn't give it to hardly any of the white people. Now, it's also possible -- possible -- that the reason he didn't was because from the answer to their questionnaires, which we've not seen, you didn't need to. That's possible. But if that were the case, wouldn't he have said to the judge, Judge, that's why I did it. I didn't ask them because I read the questionnaires. Wouldn't that be what you would do or any prosecutor would do if that were the reason?
03-9659 +++$+++ 11439 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, I would.
03-9659 +++$+++ 11440 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And did the prosecutor ever do that here?
03-9659 +++$+++ 11441 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but significantly in this case, the arguments regarding disparate questioning were never raised until Federal habeas corpus proceedings. They were not raised at trial when the jury questionnaires still existed.
03-9659 +++$+++ 11442 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did the prosecutor not -- was he there?
03-9659 +++$+++ 11443 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. He was not --
03-9659 +++$+++ 11444 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. And did -- was anyone there who had ever talked to the prosecutors?
03-9659 +++$+++ 11445 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The prosecutors were contacted during that period, but the questionnaires --
03-9659 +++$+++ 11446 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. So could then --
03-9659 +++$+++ 11447 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- no longer existed at that point.
03-9659 +++$+++ 11448 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But couldn't you have asked the prosecutors if that was the reason?
03-9659 +++$+++ 11449 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 20 -- 15 years after a case is tried --
03-9659 +++$+++ 11450 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, what are we supposed to do? I mean, what you've done is say -- of course, I could think of reasons that could have been their reason, but unless there's some reason for thinking that was their reason --
03-9659 +++$+++ 11451 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, in this case, the -- the inmate Miller-El has the burden. He had the burden in the trial court. He had the burden to prove purposeful discrimination, and he could have put -- he did put the questionnaires of the 10 challenged jurors in the record. He did not --
03-9659 +++$+++ 11452 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, on -- on that point, this is not exactly like McDonnell Douglas, Burdine where you have some prima facie case, the person was equally qualified, but was of a different gender than the one that got the job, and then the -- you go back to square one. Here, the prima facie case is immensely powerful because of the culture of discrimination in the manuals and so forth, and that -- that, it seems to me, stays in this case.
03-9659 +++$+++ 11453 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, this evidence, however compelling a picture it draws of past injustice, simply cannot trump the State court's finding of no purposeful discrimination. It does not address --
03-9659 +++$+++ 11454 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, don't we at some point have to have some reason to believe that the evidence of past practices become irrelevant? And if we -- if that is so, do we have any such evidence here?
03-9659 +++$+++ 11455 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There -- there was evidence in the Swain hearing, and that -- in fact, the cross examination by the prosecutors did indicate that practices that were in the past had been -- had been vitiated, at least closer to the time of trial. But regardless of that --
03-9659 +++$+++ 11456 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ These are the same two prosecutors who in other cases had been found, in effect, guilty of -- of racial discrimination and the same two prosecutors who were calling for the shuffle in these cases. Is it plausible to think that there had been this change of heart?
03-9659 +++$+++ 11457 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Even assuming the evidence, the historical evidence -- assuming its relevance, as the Fifth Circuit did --
03-9659 +++$+++ 11458 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I mean, I -- I am assuming it is relevant, and I am asking the question, is there a reasonable basis to think that these particular individuals, engaging in the practice that they demonstrably engaged in, had had a change in heart in this case?
03-9659 +++$+++ 11459 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. The record in this case indicates that -- for instance, with the use of graphic script questioning, the -- of the six -- again, of the six challenged jurors, four did not receive the graphic script at the outset of voir dire.
03-9659 +++$+++ 11460 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that why they engaged in the shuffle twice --
03-9659 +++$+++ 11461 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
03-9659 +++$+++ 11462 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- on -- on a record that shows there were black jurors down front each time they engaged in it?
03-9659 +++$+++ 11463 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The record shows that of 5 weeks of voir dire, the State requested shuffles three times. Two of those times, the defense counsel put on the record that there were a greater number of African American jurors in the front of the panel. They --
03-9659 +++$+++ 11464 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and that evidence was not refuted. It was not denied, as I understand it.
03-9659 +++$+++ 11465 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, there was no response from the prosecutors. There was no objection made, no specific objection made as to -- as to the State's exercise of a jury shuffle. But in this case to ask this -- what -- what Miller-El is asking this Court is to assume that the only discernible trait that could have been the basis for the State's exercise of a jury shuffle is race, and that is not -- that is not the case.
03-9659 +++$+++ 11466 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The -- I -- I don't think that's his argument at all. He is not arguing that there might not be other bases for making challenges or making peremptory strikes. What he is saying is those challenges exist for lots and lots of jurors. And what in fact there is is very strong circumstantial evidence that what tipped the prosecutors to make the peremptory challenges here -- what he was referring to earlier in this argument as the but-for cause was racial. He's not saying nothing else could have been involved. He was saying race tipped it. And it's the circumstantial evidence, among other things, that indicates that race does. And that's the reason for my question. Is there some reason to believe that there had been a change of heart on the issue of race so that his argument is unsound?
03-9659 +++$+++ 11467 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, again, Miller-El's claim of purposeful discrimination must focus on these six jurors, and in answer to your question, a review of these six jurors does show that these strikes were not based on race. This was not the tipping --
03-9659 +++$+++ 11468 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You think they're based, for example, on capital punishment. But now, let me give you two of them, and this is why -- this is actually why I get somewhat concerned about this. Here is the answer of the white woman who served on the jury about capital punishment. Could you put Miller-El to death? Mrs. Mazza: It's difficult. I've had 2 days to think about it, and given my religious upbringing, et cetera, going on for a few sentences, I think I could. She serves on the jury. Okay? Here's Mr. Fields who is black and whom they got off. What I think, according to the Old Testament, people were killed if they violated His law. In its extended service, the State represents Him. I feel the State is God's extended person. In other words, the State represents God in today's time. Therefore, if the State exacts death, that's what it should be. Okay? That's the man they feel has the qualm, and the woman I told you who was white they feel has no qualm. Now, I look at that, and I say, you know, I mean, my goodness, it's pretty hard to see how you get yourself in that frame of mind.
03-9659 +++$+++ 11469 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the -- that was not the prosecutor's argument at trial and it's -- it is not our position now that --
03-9659 +++$+++ 11470 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. I know. They then said that oh, you see, Mr. Fields was -- is it a woman or a man? I'm not sure. Yes, he's a man I think. He -- he's kept off, the black man, because of his views on rehabilitation. So I looked up what those views were, and that consists of his saying -- my -- my interpretation -- well, I think any person, if he really believes in God, really believes in God, could be rehabilitated. At which point the prosecutor says to him, well, suppose you came to the conclusion that Miller-El really was touched by God, could you put him to death? Answer: Yes. Why? Because, well, it seems to me my job here is to follow the law. That's the man whom they think they are -- they are kicking off because of his views of possibly not applying the death penalty, and the other woman, who is white, they keep on. Now, I think that's the whole story there. There was also the brother who was a drug -- who was the drug -- you know, he had had drug convictions, but that's scarcely mentioned. So -- so I look at those two people and I think, gee, put that in context. My goodness. What -- what's your response to that?
03-9659 +++$+++ 11471 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, as to Juror Billy Jean Fields, he did not express qualms about the death penalty in general, but he did state that it was his belief that no one -- no one -- no matter their background or what they've done, is beyond rehabilitation. Everyone can be rehabilitated. And this was a view regarding rehabilitation that no one, white or black, had expressed. It was a unique view, and in this case where jurors are asked to -- to -- the question, is this person going to be a continuing threat to society, is -- is something that's going to go into their punishment inquiry. And if this person is one who the prosecutor believed could tend -- if there's a repentant criminal defendant on the stand who testifies, that they would tend to believe that person and answer the question no. And -- and again, this was not the only basis for the State's strike as well. The fact that his brother had been prosecuted in Dallas County numerous times, the same prosecuting authority, contemporaneous with the trial, numerous occasions, had served time, and contrary to Miller-El's assertions, the State did question Mr. Fields on this issue during voir dire, and it was a basis for the strike. There --
03-9659 +++$+++ 11472 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Bunn, before you finish, there -- there are two pieces of this I hope you can give me an answer to. The race-coding. Is there any neutral reason for that? And when was that stopped, if it was?
03-9659 +++$+++ 11473 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I don't -- I don't have any information. There's no information on -- in the record about exercising it in other cases, and I just -- I just don't know. But the first part of the question, there could -- as Mr. Waxman mentioned, there -- there were other visual cues noted on the cards. Attorneys, especially --
03-9659 +++$+++ 11474 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it not a fair inference that each of the cues noted on the cards was something that the prosecutors thought relevant to whether or not to challenge the juror? And if so, is it not -- does -- is that not uncontradicted evidence that the race of the venire person was a factor in the decision?
03-9659 +++$+++ 11475 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not necessarily. I mean, there were other -- there was other --
03-9659 +++$+++ 11476 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why else would it be noted?
03-9659 +++$+++ 11477 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was -- just to familiarize an attorney getting ready for voir dire of an extensive number of people --
03-9659 +++$+++ 11478 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is -- is there any --
03-9659 +++$+++ 11479 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Maybe the prosecutors didn't want to come up with an all-white jury for fear it would be challenged.
03-9659 +++$+++ 11480 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's certainly --
03-9659 +++$+++ 11481 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That may be, but is it not -- is it not clear that this is one of the factors that was used to decide whether or not to exercise a challenge, just as the beard and the other things that are mentioned in the -- in the manual were?
03-9659 +++$+++ 11482 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. The fact that it was noted on the race -- on the -- on the juror card does -- does not necessarily indicate that. Again, it could be a cue for a -- a litigant preparing for voir dire.
03-9659 +++$+++ 11483 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, were the -- were the cues on the card similar to the instructions in the manual?
03-9659 +++$+++ 11484 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There were some that could -- that would correlate, but there were others that aren't noted on the juror cards --
03-9659 +++$+++ 11485 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can you quantify the correlation or lack of correlation for me?
03-9659 +++$+++ 11486 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- for instance, occupations were -- or addresses -- perhaps not occupations, but I know addresses were -- were noted. There could have been other things at that point that were not noted. There was a lot -- information available at that point, whether visual or from the juror information cards.
03-9659 +++$+++ 11487 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I had asked you if they were still race- and gender-coded. You hadn't gotten to that part of the question. These cards were race-coded and for other things too. Right now in the State, do the prosecutors code cards -- cards for race and gender?
03-9659 +++$+++ 11488 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do not know. I do not --
03-9659 +++$+++ 11489 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The other question I had, are these two prosecutors the same ones who were involved in other cases where it was determined that they had used tactics that violated Batson? Were those cases contemporaneous with Miller-El's or were they earlier in time?
03-9659 +++$+++ 11490 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The record indicates that Prosecutor Macaluso was involved in jury selection in the Chambers case, and that case was tried shortly -- I believe it was late 1985 when Chambers was tried.
03-9659 +++$+++ 11491 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wasn't that 2 months?
03-9659 +++$+++ 11492 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 2 months? This was March, so it would have been probably 4 or 5 months, within a year certainly.
03-9659 +++$+++ 11493 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is it -- is it unlawful to take sex into account in jury selection?
03-9659 +++$+++ 11494 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Yes, Your Honor, it is. That's certainly not alleged in this case. The jury actually consisted of seven women. But again, to -- the -- the race-coding issue -- as far as whether it's exercised now, I mean, I wouldn't be particularly surprised if it were. A conscientious litigant -- it's really necessary to keep track of the race of prospective jurors, as Justice Scalia noted, to be certain that you don't run afoul of Batson. But --
03-9659 +++$+++ 11495 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is -- is that true with respect to weight and mustaches and things like that?
03-9659 +++$+++ 11496 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that doesn't --
03-9659 +++$+++ 11497 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They were -- they were making notations of things like that, as I understand it, and they didn't have to worry about Batson there. But there does seem to be a correlation with the manual.
03-9659 +++$+++ 11498 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And Batson hadn't been decided yet.
03-9659 +++$+++ 11499 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, that's true. I was referring to Justice Ginsburg's question about the -- the practice, whether it continues. But again, regarding its use in this case, I would -- I would say that it -- it's not -- does not necessarily lead to the conclusion that it was noted basically to treat African American venire members differently because the record actually --
03-9659 +++$+++ 11500 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I -- I don't -- I mean, I'd just like to go back to my question. I don't know why else? It's true if -- if all they noted, if they had been prescient and had said, you know, Swain is going to give way to Batson and we're going to note Batson issues, you'd have an argument. But they were noting a lot of non-Batson issues too, and the one common characteristic of the Batson issues and the non-Batson issues were they were all correlated to a manual that says keep these people off the jury. And -- and isn't that a sound train of reasoning that that's what they were trying to do?
03-9659 +++$+++ 11501 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the -- the notations, though, correlate as well to simply visual cues that a litigant will use just simply to familiarize himself with the panel.
03-9659 +++$+++ 11502 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The manual had said there are certain visual cues that indicate jurors you don't want on the jury. You don't want black jurors. You don't want women jurors. You don't want Jewish jurors. You don't want fat ones. You don't want bearded ones. And these are the things that they were noting. Isn't the reasonable inference that that's what they were noting them for?
03-9659 +++$+++ 11503 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, there are other explainable reasons, there are other plausible reasons for noting those things. But even that aside, again, we must look at these six jurors and they all expressed views unfavorable to the State. And Miller-El has failed to identify a similarly situated white juror.
03-9659 +++$+++ 11504 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about the Fifth Circuit said that comparing Rand's testimony -- that that was in line with Mazza's. The Fifth Circuit seems to recognize that those two were closely comparable.
03-9659 +++$+++ 11505 +++$+++ TRUE +++$+++ MS. BUNN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, they recognized, as Justice Scalia had in his concurring opinion, that that was basically as close as it got. But at most, Mazza acknowledged that the decision whether to impose a death sentence would be difficult, not an easy one, kind of hard, but she simultaneously stated that it was a decision that she believed that she could make. She never questioned her ability to assess a death sentence in an appropriate case. She merely acknowledged that it was a decision that she would not take lightly. She also had served on another criminal jury in the last couple of years, a jury which had returned a guilty verdict. In contrast, Rand explicitly questioned his ability to assess a death sentence in any case. When asked whether he could impose the death penalty, he told prosecutors right now I say I can, but tomorrow I might not. He declined to describe himself as someone who believes in the death penalty and can serve as a jury -- juror and assess the death penalty if warranted, stating that he was probably in between the first two categories described by the prosecutor. Notably, Mr. Waxman referred to the prosecutors' notes on the questionnaires. What he didn't mention was also noted on the -- by the State at -- at the joint lodging, page 30, is that Juror Rand had referred to the death penalty as a touchy subject and that he had described himself as a person falling somewhere in between the two categories described by the prosecutor, the first being someone who believes in the death penalty and can assess it, the second being someone who believes in the death penalty generally but cannot personally assess it as a juror. So the State did take note of the -- of the expressions of ambivalence by Rand during his voir dire. Juror Mazza, again, never expressed this level of ambivalence. These are not similarly situated jurors. And the same is true of Miller-El's attempted comparison of Rand and -- and Juror Sandra Hearn. She expressed hesitance on assessing the death penalty in a very particular circumstance, the -- a first offense, and certainly this is not the case here. On the other hand, Rand had questioned his ability to assess a death penalty in any case and, against Hearn's State-friendly views, led to a defense challenge that was overruled. And the fact that the defense vehemently objected to her on direct appeal is further evidence that she's not similarly situated. Under Batson, Miller-El has the ultimate burden of proving purposeful discrimination. He has failed to satisfy that burden, and the State trial judge found that prosecutors in this case did not act with a discriminatory purpose. As this Court acknowledged in its earlier opinion, Miller-El is not entitled to habeas relief unless he can -- he can show that the State court's rejection of his Batson claim was objectively unreasonable. He must produce clear and convincing evidence and he has failed to do that.
03-9659 +++$+++ 11506 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. -- Ms. Bunn. Mr. Waxman, you have about 3 minutes left.
03-9659 +++$+++ 11508 +++$+++ FALSE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I have just three points. The Fifth Circuit had precisely the same record before it that this Court had and the State submitted very nearly precisely the same brief that it presented to the Fifth Circuit the time before. Disparate questioning on the minimum punishment ploy was objected to by the defense during the voir dire and it was acknowledged. If you look at the Batson argument, it's either Mr. Macaluso or Mr. Nelson said some of the jurors were questioned disparately, but -- and they gave the explanation that it had to do with views on the death penalty. So it was before the State courts. Now, on the graphic script, which is the disparate questioning that Ms. Bunn has focused the Court's attention on, the State now says, okay, we can't speculate about what we don't know about the questionnaires. Let's just look at the questionnaires that we do know about. Justice Stevens, it is -- you are quite right that that tells you nothing about the dozens of other white jurors whose questionnaires we don't have, but we don't need to indulge in that speculation in this case because what we know from the questionnaire answers that we have is that every black who expressed anything that could be called hesitation on their juror questionnaire, including just not filling in either question -- answering question 56 or 58, got it. Five whites who expressed hesitation did not. That is Juror Mazza, Juror Hearn, Juror Duke, Ms. Girard, who testified that she didn't -- who acknowledged in her voir dire that she hadn't filled out one of those questions which got similarly situated African American jurors the graphic script, and Juror Whaley who -- or Venireman Whaley who testified that her questionnaire expressed great hesitation about the death penalty. And what we also know is that the three jurors who got the graphic script, Troy Woods, the black juror; Mr. Gutierrez, the Hispanic juror; and Marie Sztybel, the only Jewish juror. If the Court has no further questions.
03-9659 +++$+++ 11509 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The case is submitted.
03-9685 +++$+++ 11513 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll now hear argument in 4 Johnson against the United States. Mr. Reichman.
03-9685 +++$+++ 11515 +++$+++ FALSE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it 9 please the Court: On occasion a prior conviction that's used to 11 enhance a Federal sentence turns out to have been obtained 12 in violation of the Constitution. This Court addressed 13 the procedure for handling those challenges in Custis and 14 Daniels. Those cases determined that, in most 15 circumstances, the facts that would show the prior 16 conviction is unconstitutional do not support a claim 17 either at sentencing or under section 2255. This is the key phrase in this case: facts 19 supporting the claim. It's the key part of the fourth 20 trigger in the 2255 statute of limitations. In this case, 21 the State court vacatur is the fact supporting the claim 22 for three reasons. First, as expressed, Daniels made clear that the 24 underlying facts, those facts that you use for the 25 challenge to the prior conviction, do not support a claim 1 under 2255, leaving the vacatur as the operative fact. Second, the plain meaning of the word fact 3 encompasses a vacatur just like courts often refer to 4 convictions as historical facts. And third, there's no reason to dispense with 6 the plain language of the statute to serve policy ends. 7 The policies animating both AEDPA and section 2255 are 8 served by the rule advanced by petitioner. And moreover, 9 petitioner's rule will be a lot more straightforward in 10 application. Let me --
03-9685 +++$+++ 11516 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ One little complication here. 13 Under 2255, even if that applies in this situation, it 14 does establish a 1-year statute of limitations. Right?
03-9685 +++$+++ 11517 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
03-9685 +++$+++ 11518 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And subsection (4) of that 17 section says: the date on which the facts supporting the 18 claim or claims presented could have been discovered 19 through the exercise of due diligence. Now, is that a 20 requirement that the defendant seek State relief on a 21 timely basis? Can the defendant just wait indefinitely 22 before going back to the State and seeking a vacatur? Or 23 does that due diligence requirement apply to the efforts 24 to get State action?
03-9685 +++$+++ 11519 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there -- there are several 1 levels to the response. Let me work through them. The first is that the petitioner's position 3 relies on a straightforward reading of the statute, and we 4 think that the due diligence requirement is satisfied when 5 the vacatur is discovered through the exercise of due 6 diligence.
03-9685 +++$+++ 11520 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but you're not being 8 responsive to my question. Here the defendant did go back 9 to the State courts and got this -- the earlier 10 convictions vacated. Right?
03-9685 +++$+++ 11521 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-9685 +++$+++ 11522 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I asked you, is there any 13 requirement that the defendant act promptly in going back 14 to the State to get the vacaturs?
03-9685 +++$+++ 11523 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's no requirement in -- in 16 the fourth trigger. However --
03-9685 +++$+++ 11524 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, except that the statute 18 itself speaks of diligence. Now, can the -- suppose he's been given a very 20 long Federal sentence and part of that is the result of 21 prior State convictions. And suppose he waits 10 years 22 before going back to the State to seek to overturn those 23 earlier State convictions. Is there no requirement that 24 he act promptly?
03-9685 +++$+++ 11525 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The requirement is not found in 1 the fourth trigger. The requirement is found in the State 2 statutes of limitations. And to elaborate on the 3 footnotes in our brief, we have found that there are 4 approximately --
03-9685 +++$+++ 11526 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but the Federal statute 6 says -- it puts a burden of diligence on the defendant.
03-9685 +++$+++ 11527 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Reading the plain language, we 8 think that burden of diligence applies to discovering the 9 vacatur. If you -- if a vacatur is a fact -- and I think 10 the Government has all but --
03-9685 +++$+++ 11528 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How -- how could one not 12 discover the vacatur? Here's my problem. I -- I frankly don't think 14 the text of -- of (4), part (4), really fits comfortably 15 with either your interpretation or the Government's. It 16 says the date on which the facts supporting the claim 17 could have been discovered through the exercise of 18 diligence. Well, as you point out in your brief, the fact 20 supporting the claim here is simply the elimination of the 21 prior conviction, the vacatur of the prior conviction. 22 That's the fact supporting the claim, not the facts which 23 led to the vacatur, but it's the vacatur. So that makes 24 the Government's case a little uncomfortable. But it seems to me you have to acknowledge that 1 your case is pretty uncomfortable when you -- when you 2 talk about discovering the fact of the -- of the vacatur. 3 I mean, it's a matter of public record. How does one 4 discover a -- a public record? How -- how could you need 5 due diligence to discover a public record? I mean, it 6 seems to me it's -- it's automatically -- isn't the 7 vacatur always served on the -- on the person whose 8 conviction is vacated? Isn't it always that person who 9 seeks the vacation? So what sense does it make to talk 10 about his discovering that particular fact? It seems to 11 me it makes no sense. So you're left with -- with two competing 13 interpretations, both of which have some textual problems. 14 I'm inclined to think you take the one that makes sense, 15 given the purpose of the statute, and the purpose of the 16 statute, as Justice O'Connor has suggested, is to make 17 people bring up their claims promptly. And -- and that 18 purpose would -- would be served by the Government's rule 19 and not by yours. You say unless the State has some 20 statute of limitation, this -- this Federal requirement of 21 due diligence goes begging. What's -- what's your response to that? You 23 really think -- especially about the discover.
03-9685 +++$+++ 11529 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do and here's why, first, 25 starting with the language before I turn to the policy 1 side of your question. On the language, paragraph (4), the fourth 3 trigger, is broad language that was meant to cover a 4 variety of circumstances, things from ineffective 5 assistance of counsel, to Brady violations, to vacaturs. 6 I'll grant you that if Congress only intended the vacatur 7 situation to be covered by paragraph (4), we might wonder 8 why they chose those particular words, but we know they 9 didn't intend this one circumstance. I think the Government's position as to discover 11 boils down to this. Because the answer to the question, 12 when could the vacatur have been discovered through 13 reasonable diligence, is easy, the answer must be wrong. 14 And we don't believe that to be the case. We think that 15 you can easily ask when could the vacatur have been 16 discovered through the exercise of reasonable --
03-9685 +++$+++ 11530 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And when it could have been 18 discovered I guess if he had taken due diligence and gone 19 and made the motion within a year, at least, of his having 20 been convicted in the Federal court. I mean, I don't see how you can have it both 22 ways. You want us to read that phrase very broadly to 23 include under the word facts something like a vacatur, and 24 then it sounds to me you're being very literal and 25 linguistic when you say that due diligence to find the 1 facts shouldn't mean what I would take it as ordinarily 2 meaning, that -- that you have to, when you had a chance, 3 go back and generate this fact.
03-9685 +++$+++ 11531 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
03-9685 +++$+++ 11532 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't see how you can do 6 both, in other words.
03-9685 +++$+++ 11533 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think we can. I think both the 8 interpretations of each of those contested words are 9 strict interpretations right within the plain meaning. 10 And our case can boil down to asking whether there's 11 something wrong with my English language when I say, on 12 what day could the vacatur have been discovered through 13 the exercise of due diligence. It's --
03-9685 +++$+++ 11534 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ On the pure English language, 15 it's not exactly a fact.
03-9685 +++$+++ 11535 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
03-9685 +++$+++ 11536 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, it's a legal 18 determination. We usually separate law from fact.
03-9685 +++$+++ 11537 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and as we point out in our 20 brief, there's nothing -- in this context in particular, a 21 vacatur is like a conviction. It's a fact, you know, that 22 is -- is commonly referred to by the court.
03-9685 +++$+++ 11538 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, just so that I understand 24 your argument then, going back to Justice O'Connor's 25 question, if you get a long sentence, can you sit there 1 for 10 years, then initiate the process to get the earlier 2 conviction vacated and then say, as soon as it is, with 3 due diligence I'm here at the courthouse because, although 4 I waited 10 years, I have brought my 2255 as soon as I 5 learned that my earlier sentence had been vacated? Your 6 answer to that question, I take it, is yes, he satisfies 7 the statute.
03-9685 +++$+++ 11539 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He satisfies the statute, but I 9 need to point out something that I think is critical to 10 understanding this question. At the end of the day, we're 11 talking about at most six States where this might be at 12 issue. The rest of them either have laches or statutes of 13 limitations. And these are small States. We're talking 14 about a rule --
03-9685 +++$+++ 11540 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay, but in -- in six States, 16 I would have thought that, A, the due diligence language, 17 together with the general obvious policy of AEDPA, to get 18 this over with, would have made it very difficult to 19 conclude that he can sit there without doing anything for 20 10 years.
03-9685 +++$+++ 11541 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I --
03-9685 +++$+++ 11542 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Maybe it's only in six States, 23 but six States count.
03-9685 +++$+++ 11543 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They do count. But it ties into 25 the response -- the second part of Justice Scalia's 1 question is, isn't finality served? Isn't that what AEDPA 2 is all about? We don't believe that the Government's rule 3 that they propose will serve finality in the vast majority 4 of cases because in the vast majority of cases, you're 5 talking about claims that will have no merit in State 6 court. But because it's very difficult to complete the 7 State court habeas process before the 1 year in the first 8 paragraph, these petitioners will file placeholder 9 petitions in Federal court and have them held while they 10 finish their State court review. So what you're doing is 11 you're talking about these six States, maybe 10 guys a 12 year, you're going to cause, as the Brackett court on 13 remand said, thousands of placeholder petitions to be 14 filed, and you're needlessly extending all of those cases 15 so that you cut off the rights for maybe 10 people who 16 happen to be in these States.
03-9685 +++$+++ 11544 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. Here's -- here's a 18 simple way of looking at it. The minute that you're 19 convicted and you are subject to the enhanced sentence 20 based on a prior conviction, the obligation of due 21 diligence begins. You can't sit there for 10 years. 22 That's the point at which you've got to file your petition 23 so that you can come into court with reasonable 24 promptness, if not by the sentencing hearing itself, as 25 soon afterwards as the State process allows you. That would be a simple due diligence point. It 2 wouldn't involve placeholder petitions, and it would get 3 things concluded with reasonable promptness. Why isn't 4 that a way of -- of applying the statute?
03-9685 +++$+++ 11545 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because if you were going to be 6 strict about it -- and -- and I'm not sure I understand 7 all of the parameters of the hypothetical -- in --
03-9685 +++$+++ 11546 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Easy. The minute he's 9 convicted, the State has charged him and -- and -- or his 10 -- by some charging document has made clear that there is 11 going to be an invocation of a prior conviction for an 12 enhanced sentence. As soon as he is convicted of the 13 later offense in which that sentencing possibility has 14 been raised, he has an obligation to go into the State 15 court and start the process of -- of getting his earlier 16 conviction vacated. Easy.
03-9685 +++$+++ 11547 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If Mr. Johnson had done that in 18 this case, he still would have missed the 1-year statute 19 of limitations. If Mr. Gadsen had done that in the Fourth 20 Circuit case by Judge Wilkinson, he still would have 21 missed the 1-year statute of limitations.
03-9685 +++$+++ 11548 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But he would have acted with 23 due diligence and he would have had as -- I suppose, a 24 very powerful argument, which -- which the Government 25 apparently would accept, for -- for tolling.
03-9685 +++$+++ 11549 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For equitable tolling? Well, I 2 don't know that the Government would accept equitable 3 tolling.
03-9685 +++$+++ 11550 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, as I understood Justice 5 Souter's question, it is the alternate that the Government 6 said. The Government puts forward two arguments, and its 7 alternate argument sounds to me just like what Justice 8 Souter put to you, that is, he has to move diligently to 9 challenge those underlying convictions, that he cannot 10 challenge in Federal court because of -- was it -- Curtis 11 and Daniels. Why isn't that an -- an accommodation of what we 13 know was the concern of the Federal court -- of the -- of 14 the Congress that people act diligently? It happens that 15 2255 wasn't framed with Curtis and Daniels in mind. There 16 isn't any indication that the drafters of 2255 were aware 17 of this peculiar situation where you can't make the 18 challenge in Federal court, you must go back to the State 19 forum. But we do know they were concerned with diligence.
03-9685 +++$+++ 11551 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, AEDPA was enacted after 21 Custis was decided and I think we presume that the 22 Congress was aware of the precedent, but the --
03-9685 +++$+++ 11552 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now, wasn't -- didn't Mr. 24 Johnson here wait a couple of years after the Federal 25 sentencing before he tried to go back to the State courts?
03-9685 +++$+++ 11553 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, he did. The -- the -- our answer --
03-9685 +++$+++ 11554 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm not sure that was a 4 diligent sort of a -- an effort.
03-9685 +++$+++ 11555 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We believe it was diligent within 6 the -- the fourth trigger because, again, we rely on the 7 plain language. And the -- the fall-back position, to 8 address your question and Justice Souter's question, is 9 that we don't believe -- we believe this is engrafting a 10 whole different statutory scheme on top of the one that we 11 have. The fall-back position of the Government is to say, 12 all right, let's interpret the statute or rewrite it to 13 say that we're going to trigger the date on when the 14 vacatur could have been obtained, not when it could have 15 been discovered. And to do that, what they're saying is, 16 well, let's give him a year from the time of the Federal 17 sentencing. So -- or -- or maybe even earlier, dating 18 back to the time of the original conviction in State 19 court. So they add that 1-year statute of limitations. 20 Then they say then we'll add a provision that tolls during 21 the pendency of State habeas, and then we'll add another 22 1-year statute of limitations on top of that after the 23 vacatur is obtained. So we end up with -- instead of the 24 plain language, we have two 1-year statutes of limitations 25 with a tolling provision in between, the type of tolling 1 provision that is, by the way, in section 2244. We believe that petitioner's interpretation, 3 although the answer is not difficult, it -- it is the 4 correct answer. On what date did the -- could the vacatur 5 have been discovered through the exercise of due 6 diligence? And the answer I think was --
03-9685 +++$+++ 11556 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But then you -- you have to 8 concede that you are watering down almost to nothing any 9 due diligence requirement because on your reading of the 10 statute, there isn't -- there isn't any such requirement.
03-9685 +++$+++ 11557 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we think that that is -- 12 I'll -- I'll say that there's no -- we don't believe that 13 there is a requirement in the Federal statute, in 14 agreement with -- with your statement, to exercise 15 diligence and seeking the vacatur. But we believe that 16 that is a necessary consequence of the administrative 17 decision that this Court made in Custis and Daniels to 18 send these back to the State court. It -- it could have been the case that these 20 were all challenged at sentencing, and in fact, I think 21 that was the prevailing practice before Custis, that they 22 were challenged at sentencing. But Custis and then 23 followed on by Daniels made a different decision, and I 24 think a good one. It made the decision to wrap these 25 challenges back to the State and that inevitably will 1 result in delays as it works it way through the State. The rationale for the Court's decision makes 3 perfect sense when you apply it to this context. One of 4 the key concerns, it seems to me, that the Court had was 5 that if you allow these Federal challenges that are 6 outside the State statute of limitations, then it's very 7 possible the State is not going to have the records 8 necessary to defend it because they wouldn't be expected 9 to keep records outside of their statute of limitations. And that's simply not the case here because 11 these challenges, under the petitioner's rule, would be 12 within the State statutes of limitations, and as this 13 Court recognized in Daniels, the States have a powerful 14 interest in defending their convictions and that powerful 15 interest, it seems to me, would lead them to preserve the 16 records necessary to maintain their convictions.
03-9685 +++$+++ 11558 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you make the argument or is 18 it implicit in your argument -- maybe you don't have this 19 concern -- that if you imply a Federal due diligence 20 standard on your duty to vacate the State conviction, that 21 it's just too burdensome on the petitioner who has to 22 begin fighting the vacatur battle at the same time that he 23 has only 1 year to complete his habeas with reference to 24 the other challenges to his conviction?
03-9685 +++$+++ 11559 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is not something that we've 1 argued in the briefs. It -- it, no doubt, is true 2 especially when you're talking about a pro se petitioner.
03-9685 +++$+++ 11560 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask? You mentioned -- I 4 just want to be sure I understand your point -- that there 5 are only six States that are really affected by this rule. 6 Is that because all the other States have State 7 limitations periods that require the prisoner to act 8 promptly?
03-9685 +++$+++ 11561 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Limitations period by statute or 10 they have a laches principle that would limit the ability.
03-9685 +++$+++ 11562 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that the -- the 12 hypothetical of the prisoner waiting 10 years to challenge 13 the State conviction can only arise in a few States. Is 14 that right?
03-9685 +++$+++ 11563 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, and from what I can 16 tell from the Department of Justice statistics, there are 17 even fewer number of convictions in those States, and best 18 I can back-of-the-envelope it, we're talking about maybe I 19 think less than 10 people per year.
03-9685 +++$+++ 11564 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In those -- in those six 21 States or those few States --
03-9685 +++$+++ 11565 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-9685 +++$+++ 11566 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- have those States all made 24 clear they'd say we will never apply laches, or is it just 25 the case that there have never -- there's never been an 1 instance where the laches issue was presented to them?
03-9685 +++$+++ 11567 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The latter is more accurate. I'm 3 -- I'm -- I was trying not to overreach, but I went with 4 the cases that States that were clear that laches would 5 apply either by statute or by case law. And why this becomes particularly important to 7 me is because we think the petitioner's rule serves the 8 ends of the Federal court overall, especially when you're 9 talking about finality because it seems to be the tail 10 wagging the dog, in a way, to have a rule that cuts off 11 the possibility of the 10-year scenario for these few 12 cases and then causes thousands of placeholder petitions 13 to be filed and managed. And it has been pointed, you 14 know, average non-merits dismissal, we're talking about 15 roughly 260 days. It's a burden on the court that's 16 unnecessary, particularly to bring it back, when we think 17 that in light of Custis and Daniels, the plain language 18 takes us all the way there.
03-9685 +++$+++ 11568 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know -- I know --
03-9685 +++$+++ 11569 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But do you have any 21 explanation of why your client waited so long?
03-9685 +++$+++ 11570 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The record doesn't reveal except 23 that he is pro se.
03-9685 +++$+++ 11571 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Pro se.
03-9685 +++$+++ 11572 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
03-9685 +++$+++ 11573 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Even -- that was the question 2 I was going to ask. With respect to -- he came into 3 Federal court and he said -- a little -- like 3 days too 4 late to move to extend the time to file the 2255. That 5 motion was denied. That motion was made in April of '97, 6 and then he doesn't file for State habeas to get rid of 7 those prior convictions until February of '98. Is -- is 8 there any indication of why, when the Federal court says 9 we're not going to extend your time, he waits so long to 10 go to the State court?
03-9685 +++$+++ 11574 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's -- I'm aware of the 12 facts, but there's none in the record other than the fact 13 that he's pro se and has limited education. I want to point out one thing that -- that I 15 think is important perhaps, if -- if the Court were to go 16 a way of equitable tolling, which as I've said, I don't 17 believe is appropriate. But you mentioned that it was 3 18 days too late that he filed. Looking back at the record, 19 I -- I don't think that's accurate. It shows that it was 20 received by the court on April 25th, 1997, which is 1 day 21 after the grace period under AEDPA which -- it expired on 22 April 24th, 1997. Well, he did it by mail, and under the 23 mailbox rule, that would have been a timely motion to the 24 extent that we are concerned with equitable tolling and -- 25 and permitting the placeholder petition of that kind. But again, this -- this difficulty in managing 2 the process is familiar to the court because it -- it's 3 what happens when you have these pro se petitioners. The important thing in this case, we believe, 5 the core concern is with the plain language of the 6 statute. Because Daniels in substance said, the 7 underlying facts to a State court vacatur do not support a 8 claim, we believe that you have to read section 2255, 9 paragraph (4) to say that, okay, then the operative fact 10 is a vacatur. And this case -- it's a very real concern 12 because without the prior convictions that were later 13 vacated, Mr. Johnson would have a roughly 7-year sentence. 14 Those prior convictions that were vacated -- and we all 15 can conclude now were unconstitutional -- added 8 more 16 years on his sentence. He's serving more time on the 17 enhancements than he was on the underlying sentence. And 18 of course, the sentencing scheme depends on reliability of 19 the information used for purposes of sentencing, and 20 that's why Congress chose to enact the fourth paragraph 21 and the statute of limitations so that there would be an 22 opportunity to correct unreliable information when it came 23 to light and it was discovered. If there are no further questions, I would 25 reserve the remainder of my time.
03-9685 +++$+++ 11575 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You may. Thank you. Mr. Himmelfarb.
03-9685 +++$+++ 11577 +++$+++ FALSE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it 6 please the Court: Petitioner's State court habeas corpus petition, 8 which challenged his guilty plea on a ground available at 9 the time of the plea, was filed nearly 9 years after the 10 plea was entered and nearly 2 years after a subsequent 11 Federal conviction became final. Petitioner, 12 nevertheless, contends that the challenge to his Federal 13 sentence was timely under AEDPA's 1-year statute of 14 limitations because it was filed within a year of the date 15 on which his State conviction was vacated. That 16 interpretation, which enables a defendant to extend the 17 limitation period for challenging his Federal conviction 18 by delaying a challenge to his State conviction, is 19 fundamentally at odds with the statutory text, the 20 statutory purpose, and the overall statutory scheme. To begin with the statutory scheme, under clause 22 (1) of AEDPA's limitation provision, the presumptive rule 23 is that a defendant wishing to -- to collaterally 24 challenge a Federal conviction has a year from the date on 25 which the conviction becomes final. Clauses (2), (3) -- (2), (3), and (4) create 2 exceptions to that general rule when a prisoner is unable 3 to comply with the rule in clause (1) for reasons beyond 4 his control. The fundamental flaw in petitioner's 5 interpretation is that it would excuse compliance with the 6 presumptive rule in clause (1) for a reason that is not 7 beyond his control, a failure to exercise diligence in 8 challenging his State conviction. Petitioner's interpretation is also inconsistent 10 with the statutory purpose of the limitation provision.
03-9685 +++$+++ 11578 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, are you saying that (4) 12 is inapplicable?
03-9685 +++$+++ 11579 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Kennedy. We agree 14 that (4) is applicable in a case like this. It's just 15 that our position is that petitioner's interpretation of 16 it is wrong. We offer two alternative interpretations of 17 how paragraph 6(4) would apply in a case like this. Before I get to them, I'd like to respond to a 19 question that you asked when petitioner's counsel was 20 standing up here, and that had to do with the difficulty 21 of getting everything that needed to be done done in the 22 space of a year. It's critical to keep in mind that in the 24 typical case of this type, the factual basis for the State 25 claim is going to available at the time of the State 1 guilty or trial, which in almost every case is going to be 2 years before the Federal conviction becomes final. And 3 since the limitation provision under AEDPA runs from the 4 latest of the four dates, in a typical case a defendant is 5 going to have many years to seek the vacatur of a State 6 conviction and he'll have up until a year after his 7 Federal conviction becomes final to challenge it.
03-9685 +++$+++ 11580 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But do you agree with your 9 opponent that most States have their own limitations 10 period that will reduce the number of cases in which there 11 can be inordinate delay?
03-9685 +++$+++ 11581 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Some States do have statutes of 13 limitations. Many don't. Massachusetts is a prime 14 example. It doesn't. Many of the cases of this type that 15 come through the Federal courts arise based on a -- a 16 vacated Massachusetts conviction. My understanding is 17 that perhaps as many as half the States don't have 18 limitation provisions in non-capital cases.
03-9685 +++$+++ 11582 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But he says some of them have 20 doctrines of laches that would kick in.
03-9685 +++$+++ 11583 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's -- that -- that 22 may well be true, Justice Stevens, but laches is a much 23 more -- a -- a case-by-case --
03-9685 +++$+++ 11584 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It -- it does seem to me that 25 the State has a greater interest than the Federal 1 Government does in the finality of its own convictions, 2 and so the State would be the primary guardian of 3 preventing dilatory tactics, it would seem to me.
03-9685 +++$+++ 11585 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the State does have an 5 interest. The problem is that when there's a delay in 6 filing a challenge to a State conviction, one of two 7 things can be happen -- can happen, and the cases bear 8 this out. One is that you have a State prosecutor who is 9 perfectly diligent and wants to defend the conviction but, 10 because of the lapse of time, can't because the requisite 11 records aren't available. The other thing you see in some 12 of these cases is that because the State sentence has been 13 served by the time it's challenged in cases of this type, 14 the State prosecutor doesn't have the same kind of 15 incentive --
03-9685 +++$+++ 11586 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, as to your first --
03-9685 +++$+++ 11587 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I was going to say that. What 18 -- what -- excuse me.
03-9685 +++$+++ 11588 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- as to your first -- as to 20 your first instance, if there's lack of diligence, then 21 there's laches. If the records are destroyed, somebody 22 sits on their rights and the records are destroyed, then 23 you have an obvious defense of laches.
03-9685 +++$+++ 11589 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the important point, 25 Justice Kennedy, is the limitation provision at issue here 1 has to do with the finality of Federal convictions. 2 Congress was concerned that challenges to Federal 3 convictions not be --
03-9685 +++$+++ 11590 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, we're -- yes, I -- I 5 recognize that that's going to be the ultimate issue, but 6 your point was, oh, well, the State is powerless because 7 the prosecutor might not have the records. The States 8 have laches provisions precisely for that circumstance.
03-9685 +++$+++ 11591 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, we're not 10 saying that States are powerless, and there are many 11 cases, probably the majority of them, where States do 12 diligently defend their own convictions in cases of this 13 type. Unfortunately, the reported cases show that there 14 are many cases where either they're not able to or they're 15 unwilling to because the State sentence has long since 16 been served.
03-9685 +++$+++ 11592 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Himmelfarb --
03-9685 +++$+++ 11593 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, in this case now, the 19 petitioner did obtain a vacatur of the two State 20 convictions. Isn't that so? Don't we accept that as a 21 fact in this case?
03-9685 +++$+++ 11594 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice O'Connor. He 23 actually obtained vacatur of seven prior State 24 convictions, only one of which was relevant to the career 25 offender sentence that he received in the Federal case.
03-9685 +++$+++ 11595 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But he did succeed. And then 2 we have to look at whether the petitioner has complied 3 with section 2255 of AEDPA. And so we look to subpart 4 (4), do we not, in this case to answer that?
03-9685 +++$+++ 11596 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in a case of this type, 6 you would have to look to both subpart (1) and subpart (4) 7 and determine which one gives him more time, and whichever 8 one gives him more time is the one that applies. We think 9 that 6(1) applies because under 6(4) he waited far too 10 long to challenge his State conviction.
03-9685 +++$+++ 11597 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, that's possible, but 12 you also question whether the vacatur can be a fact under 13 subsection (4).
03-9685 +++$+++ 11598 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't really, Justice 15 O'Connor.
03-9685 +++$+++ 11599 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
03-9685 +++$+++ 11600 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the lower court placed 18 some weight on that idea. We don't dispute that if a 19 conviction is a fact, the vacatur can be as well.
03-9685 +++$+++ 11601 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay. You think that the -- 21 the vacatur here could be a fact, but then you say that 22 even so, the petitioner didn't go back to State court 23 diligently and on a timely basis.
03-9685 +++$+++ 11602 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's exactly right. The 25 textual language we rely on is not fact or facts 1 supporting the claim, but rather could have been 2 discovered through the exercise of due diligence.
03-9685 +++$+++ 11603 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And you say he was not 4 diligent in challenging those convictions.
03-9685 +++$+++ 11604 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- that's absolutely our 6 position, Justice O'Connor.
03-9685 +++$+++ 11605 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. --
03-9685 +++$+++ 11606 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's -- go on.
03-9685 +++$+++ 11607 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would -- would you comment on 10 -- on one difficulty I have with what, I take it, is your 11 preferred position of measuring due diligence from -- as I 12 understand it, from the -- the date at which the State 13 conviction became final? Most of these -- I think it is fair to say that 15 most of the State convictions, like most convictions in -- 16 in general, are going to rest on -- on guilty pleas. It 17 just is not realistic to assume that Congress assumed a 18 due diligence system which was going to require a State 19 defendant immediately to start a collateral attack on a 20 guilty plea. I mean, if -- if there -- if there were 21 reasons for the collateral attack that seemed strong and 22 worthwhile, he wouldn't have been entering the guilty 23 plea. And it seems to me that if we're going to 25 measure due diligence from the date of conviction, most 1 convictions resting on pleas, as a practical matter under 2 your system, a conviction that rests on a plea is never 3 going to be subject to a timely challenge for purposes of 4 applying 2255. Is -- is that a fair comment, or have I -- 5 have I missed something?
03-9685 +++$+++ 11608 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. We -- we disagree, Justice 7 Souter. And if I could, I'd like to say a little bit 8 about the -- the proposal you made when petitioner's 9 counsel was up here about when the diligence could be 10 measured from. And I think your suggestion was that it 11 could be measured from the time of the Federal conviction 12 or --
03-9685 +++$+++ 11609 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
03-9685 +++$+++ 11610 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- perhaps the time that 15 Federal charges are brought because at that time, that's 16 when the defendant has the incentive to -- to challenge 17 the State conviction. We obviously prefer that 18 interpretation to the one offered by petitioner. We think the two that we offer are better than 20 that one for a couple of reasons. The first is that we 21 think that our two --
03-9685 +++$+++ 11611 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, would you comment 23 specifically on your preferred position which starts at 24 the very -- as I understand it, starts at the earliest 25 date, which would be the date of the State conviction?
03-9685 +++$+++ 11612 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. We think that's 2 consistent with the text because the diligence has to be 3 connected in some way to the facts supporting the claim, 4 and we think you could take the view that in a case of 5 this type, particularly given the diligence requirement, 6 the facts supporting the claim either means the facts 7 supporting the State claim or it means the vacatur of the 8 State conviction.
03-9685 +++$+++ 11613 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but isn't it -- I guess my 10 problem is isn't -- isn't it a sense -- isn't your 11 argument for a sense of diligence which is really other 12 wordly? At the moment the defendant's conviction based 13 upon his plea becomes final, it simply is unrealistic to 14 expect that any defendant would have an incentive to 15 attack that conviction. And -- and the result, it seems 16 to me, of -- of your position, your preferred position, is 17 if -- if diligence is measured from that moment, that no 18 defendant will ever be diligent because no defendant will 19 ever have an incentive at that point to be diligent.
03-9685 +++$+++ 11614 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Souter, the -- we 21 think that there's a -- a textual problem with the 22 interpretation you're offering because it doesn't tie 23 diligence to facts supporting a claim.
03-9685 +++$+++ 11615 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, how about the one you're 25 offering? Before you tell me why mine is bad, tell me why 1 yours does not suffer the -- the -- at least I think, the 2 objection that I've -- I've raised?
03-9685 +++$+++ 11616 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because it avoids the problem 4 that you could have a Federal conviction long after, years 5 or a decade or a more after, the State conviction. And on 6 -- on your view, you would not be -- the -- the petitioner 7 would not be required to challenge a State conviction for 8 a decade or more until after --
03-9685 +++$+++ 11617 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's -- that's right. But 10 why is the requirement on your reading to challenge it 11 promptly after it is entered in these plea situations, not 12 a just totally unrealistic requirement that will never be 13 met and will result in a consequence that all State 14 convictions, resting upon pleas, will be, in effect, 15 insulated from later collateral attack when -- under -- 16 for purpose of 2255?
03-9685 +++$+++ 11618 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, an argument 18 along those lines was actually raised in Daniels itself 19 and rejected by the Court. And essentially what the Court 20 said is that whatever the incentives may be at the time of 21 the State conviction, the remedies are available, the 22 procedures are available. And if a defendant does not 23 avail himself of those remedies and procedures, at a 24 minimum he will know that so long as his State conviction 25 remains on the books, if he goes out and commits another 1 crime, he runs a risk that he will be subject to an 2 enhanced sentence based on the fact that he's committed 3 the prior crime. We think the same --
03-9685 +++$+++ 11619 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So you say we're all stuck with 5 that.
03-9685 +++$+++ 11620 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that --
03-9685 +++$+++ 11621 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You don't mind, but -- if -- if 8 you think -- if you think there's anything to my 9 objection, you're in effect saying, too late.
03-9685 +++$+++ 11622 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that the arguments 11 against your objection weigh in favor of our 12 interpretation.
03-9685 +++$+++ 11623 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I'm not sure I agree 14 with your argument, but I suppose one answer to Justice 15 Souter is that you get the longer of (1) or (4), so that 16 you would always get at least 1 year. If the -- if the 17 State conviction was 10 years prior to the Federal 18 conviction and he waited and did nothing, I take it, he 19 still has 1 year because he gets the longer of the two 20 provisions.
03-9685 +++$+++ 11624 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Justice Kennedy.
03-9685 +++$+++ 11625 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It is right? Because I thought 23 that Justice Souter provided that, but you don't because 24 if you're relegated to (4) -- let's say it becomes final 25 quickly. If you're relegated to (4), what you're saying 1 is the date on which the facts supporting the claim could 2 have been discovered, if this is a conviction that took 3 place 10 years earlier, you are saying the date on which 4 those facts could have been discovered was 9 years earlier 5 or whenever he could have brought it -- brought the claim 6 in the -- in the State court.
03-9685 +++$+++ 11626 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. Under --
03-9685 +++$+++ 11627 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, therefore, it is not true 9 that he always has that year.
03-9685 +++$+++ 11628 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Under paragraph 6(4), what 11 you say is absolutely correct, as we see things.
03-9685 +++$+++ 11629 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
03-9685 +++$+++ 11630 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the -- the limitation 14 period under AEDPA runs from the latest of the four 15 dates --
03-9685 +++$+++ 11631 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But if the date of judgment 17 became final prior to the running of (4), then he would 18 not have a year.
03-9685 +++$+++ 11632 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's true.
03-9685 +++$+++ 11633 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. Now, my question actually is the -- aside from 22 Justice Souter's practical point, it seemed to me that the 23 language here is different from Daniels and different in 24 the other cases. The language is the date on which facts 25 supporting the claim or claims presented could have been 1 discovered. And facts supporting the claim prior to there 2 being a claim are not facts supporting the claim. And 3 therefore, it seems as if it would run no later than the 4 moment when he presents the Federal claim. No earlier 5 than that could it run. So you have a year from the time 6 that you present the Federal claim. At that point, all 7 those facts that could have been discovered earlier, now 8 he has a year to call them to the attention of the court. And of course, for reasons that you point out, 10 this is certainly a fact that could have been discovered 11 earlier. He could have brought his motion long before. So what's wrong with that? It combines the 13 practical reason that Justice Souter mentioned with the 14 language of the statute.
03-9685 +++$+++ 11634 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me comment on the language, 16 if I could. If one were to read the phrase, facts 17 supporting the claim, completely in isolation, keeping in 18 mind only Daniels, but ignoring the broader statutory 19 context and the statutory purpose, it might well be the 20 case that the better reading is that the facts supporting 21 the claim is the vacatur of the State conviction not the 22 factual basis for the State claim. But if you take into account the broader 24 statutory context and statutory purpose, in particular if 25 you take into account the due diligence requirement, we 1 think the better reading is that facts supporting the 2 claim, in the context of this limitation provision, is the 3 factual basis for the State claim. It is true --
03-9685 +++$+++ 11635 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I -- I thought that you 5 conceded at the outset that the facts supporting the claim 6 is the vacatur. I -- I thought that you opened up with 7 that. And it -- it --
03-9685 +++$+++ 11636 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Kennedy. What I 9 was agreeing to was the idea that a vacatur of a 10 conviction is a fact because in the lower court decision, 11 there seems to be some reliance on the idea that that's 12 not a fact at all. But in responding to Justice Breyer's 13 question --
03-9685 +++$+++ 11637 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the minute -- the minute 15 that you -- you say that, it -- it seems to me that you 16 have to accept the petitioner's argument.
03-9685 +++$+++ 11638 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so, Justice 18 Kennedy, and here's why. It is a true in a case of this 19 type that the facts supporting the claim -- excuse me -- 20 the factual basis for the State claim is not the facts 21 supporting the Federal claim in a direct or proximate or 22 immediate or sufficient sense. It is the facts supporting 23 the Federal claim in an indirect, a but for, a once 24 removed, or a necessary sense. If a defendant has served 25 his State sentence, he's been sentenced to an enhanced 1 Federal sentence and he wants to challenge his Federal 2 sentence and he's armed with a factual predicate for a 3 State claim, so long as he takes the intermediate step of 4 going into Federal court and obtaining a vacatur of the 5 conviction, he can challenge his Federal sentence.
03-9685 +++$+++ 11639 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm certainly not taking -- 7 advocating the -- the defendant's position. I'm 8 advocating the position as follows. Suppose it were not a vacatur. Suppose it were 10 a DNA test, and suppose it were a fact that the DNA test 11 identified a different perpetrator of a long-gone State 12 crime and it was definite. Now, if no one thought of running that DNA test, 14 although they should have, until 4 years after the Federal 15 conviction, he's out of luck. He has 1 year from the 16 Federal conviction, and that 1 year he has to, during that 17 year, do everything, including bringing facts into being, 18 such as the result of the DNA test, that he had not 19 previously done. And that's consistent with the language. 20 It avoids Justice Souter's practical problem, and it does 21 not impose an unreasonable burden on the Government, I 22 wouldn't think, because he has just a year from 23 conviction.
03-9685 +++$+++ 11640 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, under our view, 25 the hypothetical you just gave would be one where a timely 1 2255 motion could be filed. If the DNA evidence were 2 discoverable in the exercise of due diligence only more 3 than a year after the Federal conviction became final such 4 that the defendant would not be within paragraph 6(1), he 5 would be able to file a timely 2255 motion under paragraph 6 6(4) if, within a year from the date that the DNA evidence 7 was discoverable through the exercise of due diligence, he 8 filed his State motion to get his State conviction 9 vacated, and allowing tolling of the period while the 10 State motion is pending, then filed his Federal motion 11 within that same 1-year period, he would be able to file a 12 timely 2255 motion. That's under our primary 13 interpretation.
03-9685 +++$+++ 11641 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ From your answer, I take it 15 then you would agree with Judge Black in the Eleventh 16 Circuit that equitable tolling would apply. He goes to 17 State court within the year after his Federal conviction 18 becomes final. The State court is sitting on it for 2 19 years. The limitation, I take it from what you said, 20 would be tolled during that time.
03-9685 +++$+++ 11642 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Justice Ginsburg. 22 Under our primary interpretation, there would be tolling 23 during the 1-year period of the time while the motion, the 24 State motion, is pending in State court. Our alternative interpretation doesn't depend on 1 tolling because it doesn't begin to run until the vacatur 2 of the State conviction could have been obtained. So it's 3 just the -- the time while the State motion is pending is 4 just excluded from the calculation as a matter of course 5 under our second interpretation.
03-9685 +++$+++ 11643 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May -- may I ask you sort of a 7 general background question? As I understand your basic 8 position, if the defendant lets things sit for too long, 9 he loses the right to challenge the State conviction. On 10 the -- and -- and what's -- what's at stake is an 11 enhancement based on the -- on the prior conviction. Is 12 there ever a time when the Federal Government loses the 13 right to use a very old conviction for enhancement 14 purposes?
03-9685 +++$+++ 11644 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, under -- under the 16 guidelines, depending upon the -- the length of the prison 17 term, I think very old convictions are not counted at all.
03-9685 +++$+++ 11645 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that right?
03-9685 +++$+++ 11646 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. So -- so the length of 20 time from the date of the State conviction to the time of 21 the Federal sentencing can have a bearing upon what 22 sentence he's going --
03-9685 +++$+++ 11647 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Whether he gets the --
03-9685 +++$+++ 11648 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that also true under the 25 Armed Career Criminal Act cases?
03-9685 +++$+++ 11649 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I don't believe it is, 2 Justice Souter. I don't think there's any kind of time 3 limitation there the way there is in the guidelines. The -- the --
03-9685 +++$+++ 11650 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not sure which way that 6 cuts. In a -- in a sense, if that set of old convictions 7 is out of the way, then you won't be troubled by the loss 8 of records problem.
03-9685 +++$+++ 11651 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that -- I think that's 10 actually a critical point, Justice Kennedy, because our 11 view is that a -- a State defendant should be required to 12 challenge his State conviction at the earliest possible 13 opportunity, and in most cases that will be soon after his 14 conviction in State court because that will be the time 15 when he knows about the basis for his State claim. If he 16 does that, by the time he gets to the Federal sentencing, 17 you're not going to have the issue in this case because 18 all will agree that that vacated State conviction can't be 19 counted towards his Federal sentence. So that's one of 20 the virtues of the interpretation we offer. It avoids 21 this circumstance entirely.
03-9685 +++$+++ 11652 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you're not -- you're not 23 insisting on that super diligence because you say, well, 24 in every case he has at least a year to begin to try to 25 undo the State conviction.
03-9685 +++$+++ 11653 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that's right, Justice 2 Ginsburg. We agree with that. The -- the purpose of AEDPA's limitation 4 provision, to use this Court's language in Duncan v. 5 Walker, is to reduce the potential for delay on the road 6 to finality by restricting the time that a prospective 7 habeas petitioner has in which to seek habeas review. We 8 think petitioner's interpretation is inconsistent with 9 that purpose not only because it permits a delay in 10 challenging the State conviction and, as a consequence, in 11 challenging the Federal sentence, but because it 12 encourages it. As I mentioned before, the longer a 13 prisoner waits to challenge his State conviction, other 14 things being the same, the greater the likelihood of 15 success either because the necessary records that the 16 State would need to defend the judgment are unavailable or 17 because the State prosecutor has less of an incentive to 18 defend it than he might have while the sentence was still 19 being served.
03-9685 +++$+++ 11654 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Recently I -- I lost my 21 luggage. I had to go to the lost and found at the 22 airline, and the lady said has my plane landed yet. (Laughter.)
03-9685 +++$+++ 11655 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I was kind of stopped by that 25 question. It seems to me this case is something like that. 2 I mean, this is just not a question the -- the defendant 3 asks until the Federal conviction arrives, which I -- 4 which I suppose that argues for your 1-year --
03-9685 +++$+++ 11656 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, our --
03-9685 +++$+++ 11657 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- position, but it just seems 7 to me that the purpose of this doesn't begin to run until 8 he's been sentenced. And then he has to go through all 9 the -- the questioning as -- as to whether or not his 10 prior conviction is -- can be set aside, and he has to go 11 to State court to do that.
03-9685 +++$+++ 11658 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- the important 13 point is that -- we think is that petitioner's 14 interpretation doesn't work because it gives a defendant 15 an indefinite period to challenge his State conviction, 16 and the only diligence that's required under his 17 interpretation is that you have to exercise diligence in 18 seeing whether the motion to vacate your State conviction 19 was granted whenever it was filed.
03-9685 +++$+++ 11659 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that may be but that also 21 may be what it says. I -- I don't follow your 22 interpretation of what is the meaning of facts supporting 23 the claim or claims. I mean, once you say that the facts 24 supporting the claim is the vacatur of the -- of the State 25 conviction, I mean, it seems that's the end of it.
03-9685 +++$+++ 11660 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-9685 +++$+++ 11661 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and as for due 3 diligence, yes, it doesn't seem to make much sense in that 4 context, but as pointed out by your friend on the other 5 side, it makes sense in all other contexts and -- and you 6 don't expect the language to be applicable all the time. 7 So what's wrong with that?
03-9685 +++$+++ 11662 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What's wrong with it is that we 9 think it's not only inconsistent with the basic principle 10 embodied in AEDPA's statute of limitations, we think it's 11 inconsistent with the very idea of a statute of 12 limitations.
03-9685 +++$+++ 11663 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It may well be, but that's how 14 they wrote it. I'm talking about the word facts.
03-9685 +++$+++ 11664 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice --
03-9685 +++$+++ 11665 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How can this be a fact 17 supporting the -- you -- you want us to say a fact 18 supporting the conviction includes the facts that lead up 19 to the facts supporting the conviction or -- or supporting 20 the claim.
03-9685 +++$+++ 11666 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, if the Court 22 rejects our view that the facts supporting the claim under 23 paragraph 6(4) as the factual basis for the State claim, 24 we think it should still reject petitioner's 25 interpretation and should adopt our alternative 1 interpretation which is not subject to that objection 2 because our alternative interpretation assumes that the 3 facts supporting the claim is the vacatur of the State 4 conviction. But in light of the due diligence requirement 5 at the end of paragraph 6(4), the question is when could 6 that vacatur have been obtained and thus discovered 7 through the exercise of due diligence.
03-9685 +++$+++ 11667 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In other words, you're saying 9 due diligence applies to an extraneous fact when you 10 could, in the simple sense, discover it. It applies to a 11 generated fact when you could have generated it.
03-9685 +++$+++ 11668 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's absolutely our position, 13 Justice Souter.
03-9685 +++$+++ 11669 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask sort of a broad 15 question? Am I correct in assuming that this really isn't 16 the most important case we ever heard because it only 17 affects a handful of enhancements that don't really affect 18 the basic conviction or sentence; and secondly, that it's 19 clear that the -- from both the text of the statute and 20 whatever we know about the legislative history, that it's 21 a problem Congress never even thought about?
03-9685 +++$+++ 11670 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As to your first question, 23 Justice Stevens, one -- one would think that this is a 24 little bit of an unusual situation and you don't see too 25 many cases where it arises. Perhaps surprisingly, though, 1 there are quite a few reported decisions where this 2 arises. There is a 2 to 1 circuit split on this question. 3 There are some district courts from other circuits that 4 have weighed in. I believe there may be three or four 5 certiorari petitions pending in this Court from the 6 Eleventh Circuit that raise the same question. As to whether Congress ever considered this 8 situation, I'm not aware of anything in the legislative 9 history that is an affirmative indication that it did. It 10 could well be --
03-9685 +++$+++ 11671 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And certainly they would have 12 phrased the statute one way or the other more clearly. 13 They could have done that.
03-9685 +++$+++ 11672 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That could well be, but of 15 course, it wouldn't be the -- the first time the Court 16 confronted a situation where there's a statutory text and 17 there's a set of facts that Congress didn't necessarily 18 consider when it was writing the text. So we think our -- either our primary or our 20 fall-back position is preferable to petitioner's 21 interpretation for the fundamental reason that his 22 interpretation does not require diligence. It enables the 23 defendant to extend the limitation period through his own 24 actions, and we think it's simply foreign to the whole 25 notion of statutes of limitations to say that the 1 limitation period can be determined by actions that are 2 within the prisoner's control. The court of appeals --
03-9685 +++$+++ 11673 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You certainly -- wouldn't you 5 be making the opposite argument if it were a DNA test? If 6 it were a DNA test, you would certainly be arguing that 7 even though the results didn't come into existence until 8 32 years after his Federal conviction, that he could have 9 discovered it 38 years before because he could have asked 10 that the test then be performed.
03-9685 +++$+++ 11674 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Breyer, the 12 question of whether a fact supporting a claim could have 13 been discovered through the exercise of due diligence is a 14 very fact-specific question which --
03-9685 +++$+++ 11675 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. Then -- then once 16 you admit that, you're going to have to find a difference 17 between this and the DNA test, or your position here, if 18 adopted, will catch you out there.
03-9685 +++$+++ 11676 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. We don't think so because 20 we think that the analysis should be the same for this 21 case as it is for your typical case involving a statute of 22 limitations with a discovery rule. The question is on the 23 facts of this case, when could the factual basis of the 24 claim been discovered given the totality of the 25 information available to the plaintiff through the 1 exercise of due diligence. So we think it's precisely the 2 same situation.
03-9685 +++$+++ 11677 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you're still asking us -- I 4 mean, even -- even in your fall-back position -- your -- 5 your principal position asks us to -- to play games with 6 the -- with the word facts, and your fall-back position 7 asks us to play games with the word discovered. You want 8 us to read discovered to mean either discovered or 9 obtained, which discovered just doesn't mean obtained. It 10 just doesn't.
03-9685 +++$+++ 11678 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you're right, Justice 12 Scalia. The fall-back position presumes the correctness 13 of petitioner's interpretation of facts supporting the 14 claim.
03-9685 +++$+++ 11679 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Himmelfarb. Mr. Reichman, you have, I think, 8 minutes left. 17 I'm not -- I'm sure you don't really need all 8.
03-9685 +++$+++ 11681 +++$+++ FALSE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I hope not. The Government's position boils down to this. 22 They're advocating for the statute they want, not the 23 statute they have. This statute says the fact that could 24 have been discovered with exercise of due diligence. And 25 once -- as this Court -- several Justices have recognized 1 once you admit that the vacatur is a fact, the 2 Government's entire argument unravels because what the 3 Government would have -- this Court holds -- is that the 4 facts supporting the claim is exactly what it held it 5 couldn't be in Daniels. The -- underlying the Government's argument is, 7 I think, a principle that -- that does not make sense. 8 It's that the State can't be trusted to handle the 9 challenges to prior convictions. I think that is not only 10 against experience. It also cuts against this Court's 11 decisions, in particular, about Daniels. It talked about 12 the State having a strong interest in maintaining its 13 convictions. The idea about AEDPA and finality I think is 15 also important. To answer your question, Justice Stevens, 16 no, this is not the most important case this Court has 17 ever heard. And I think that that ties into an important 18 point. To use my rough numbers, we're talking about at 19 this point with the six States, less than 10 guys that 20 might be in this 10-year scenario per year. I think 21 probably the number is more like three people per year. 22 And if the Brackett court, the court on the front lines 23 down there in the district court, the First Circuit is 24 right, we're talking about the results of the Government's 25 rule to be that thousands of placeholder petitions will be 1 filed so that petitioners don't lose their rights to 2 challenge their Federal sentence based on the vacatur of 3 their prior sentences. And when -- when I think about 4 what serves the ends of the statute and finality overall, 5 I think that to prolong all these other cases, these 6 thousands of cases --
03-9685 +++$+++ 11682 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why would you need the 8 placeholder if the rule were, as Judge Black said it 9 should be, that if you go to the State court within the 1 10 year after your Federal conviction becomes final, then the 11 time that you are in the State court the statute will be 12 tolled? If that's the rule, then you don't need any 13 placeholder filings.
03-9685 +++$+++ 11683 +++$+++ TRUE +++$+++ MR. REICHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Two responses to that. First, if 15 that is the rule, I'm not sure I read the Eleventh Circuit 16 to be so crisp on it that you definitely get tolling. I 17 think it was a case-by-case determination. And anytime 18 you're in a soft -- what I call soft equitable tolling 19 situation where you don't know for sure, that's going to 20 lead to placeholder petitions. Alternatively, if we're talking about a rule 22 that's a hard equitable tolling rule, that is, there is 23 tolling every time there's the pendency of the State 24 petition, well, it seems to me that we are adding a 25 provision very expressly to the statute that doesn't 1 exist. 2244 has exactly that tolling provision, and that 2 is not in this -- in the 2255 provision. And this Court 3 would be adding it, and we don't think that is 4 appropriate. At the end of the day, there's been a question 6 about doesn't a tie go to the Government in this case 7 because of finality. That is, if both interpretations are 8 equally plausible, because of finality, doesn't it go to 9 the Government? Of course, you've heard me contest we 10 don't think it's a tie. We also don't think finality cuts 11 in the favor of the Government. But even assuming we have a tie, we think that 13 -- that should -- the tie goes to the petitioner because 14 this statute is recognized in Clay as in derogation of 15 common law, and statutes and derogation of common law are 16 to be strictly construed. Thank you.
03-9685 +++$+++ 11684 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Reichman. The case is submitted.
03-9877 +++$+++ 11688 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in No. 03-9877, Jon Cutter v. Reginald Wilkinson. Mr. Clement.
03-9877 +++$+++ 11690 +++$+++ FALSE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: When the government acts to remove government-imposed burdens on religious exercise, it does not violate the Establishment Clause. Rather, as this Court put the point in Zorach against Clauson, when the government eases those kind of burdens, it follows the best of our traditions. The Religious Land Use and Institutionalized Persons Act, or RLUIPA, eases government burdens on restrictions by having institutions and prison officials examine burdens on religious exercise and remove unjustified, substantial burdens.
03-9877 +++$+++ 11691 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, you know, when you say it eases burdens, it doesn't just ease burdens imposed by the Federal Government. It eases burdens imposed by State governments.
03-9877 +++$+++ 11692 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right, Mr. Chief Justice, but I think that -- that that doesn't make any substantial difference, in part, I think because if you think about certainly this application of RLUIPA, it's Spending Clause legislation. And spending legislation often takes the form of giving the States an incentive to take action on their own. And in this sense, I think you can understand this legislation as giving the States an opportunity to remove their own burdens on religious exercise. And that's precisely how it works in practice. The relevant action that a State takes is State action in removing its own burdens, not Federal action imposed on the States. And I think that's consistent with the analysis of this Court in the Dole case where the Federal Government, on the assumption of this Court, didn't have the direct power under the 21st Amendment to raise the drinking age, but it could give the option to the States to exercise their power to do it. So I do think in the end, the burdens that are removed here are attributable to the State of Ohio, not to the Federal Government. It is also true that the standard that's imposed by RLUIPA is a more exacting standard than that imposed by the Federal Constitution itself. But I don't think providing for greater accommodation of religious exercise than the Federal Constitution creates an Establishment Clause problem.
03-9877 +++$+++ 11693 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But in -- in the City of Boerne, didn't we say that Congress couldn't come in and simply rewrite some part of the Constitution to make it read differently than we had?
03-9877 +++$+++ 11694 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Mr. Chief Justice, but I don't think this case poses the same problems as City of Boerne. First of all, this really isn't an effort to rewrite a rule of decision for all cases the way that RFRA was. Congress in this legislation targeted two areas where there were particular problems with respect to religious exercise, and in those contexts, it addressed a different standard. Now, as I say, that standard is higher, but so are the standards of over half of the States which also apply a heightened scrutiny test either as a matter of State constitutional law or State law.
03-9877 +++$+++ 11695 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, RFRA didn't involve a -- a limitation to situations in which Federal funds were involved, and as I understand this statute does.
03-9877 +++$+++ 11696 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is also true. I mean, there -- there is -- to be sure there is --
03-9877 +++$+++ 11697 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ More than also. I -- that seems to me the principal difference between this and RFRA.
03-9877 +++$+++ 11698 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I take your point, Justice Scalia. I would -- I would clarify that there is the potential for applications to the statute under the Commerce Clause. We don't think that's really appropriately presented here. We also think that with respect to State prisons in all their applications, they will be Spending Clause applications.
03-9877 +++$+++ 11699 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that -- what you're saying is academic because the statute doesn't require a Federal spending hook. It says it has the other commerce peg. I take it you -- you gave a pragmatic answer to that, that every State in fact gets Federal funds for their prison systems.
03-9877 +++$+++ 11700 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Justice Ginsburg, and I think the fact that there may be more than one hook for this legislation in certain applications shouldn't make any constitutional difference. And I think here it is Spending Clause legislation as it applies to the State of Ohio. I think that's conceded. They -- they take issue with whether it's valid.
03-9877 +++$+++ 11701 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, Mr. Clement, it seems to me the Spending Clause aspect cuts in the other direction, if we're just focusing on the Establishment Clause. The fact that Federal money is involved, why does that make your burden any less in defending the -- the statute under the Establishment Clause?
03-9877 +++$+++ 11702 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Stevens, I don't think the fact that there's money involved makes it harder or easier from a Spending Clause perspective. I think from the perspective of why this case is different from Boerne, the fact that it's Spending Clause and Commerce Clause and not section 5 legislation makes a big difference. But I certainly don't want to leave you with the impression that there's anything constitutionally problematic because there's Federal money involved because, of course, this Court has upheld Federal Spending Clause legislation in religion areas in cases like Zobrest, Mergens, Agostini, Mitchell against Helms.
03-9877 +++$+++ 11703 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you -- do you think the Establishment Clause issue in this case would be the same as the Establishment Clause issue in City of Boerne if we -- if the Court had reached the Establishment Clause issue in that case?
03-9877 +++$+++ 11704 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't, Justice Stevens. Or another way of answering that is I would say that even though you thought there was an Establishment Clause problem in the City of Boerne case, I don't think you need to find one here. And part of that is because this is more targeted legislation, and it particularly deals, as -- as it comes to this Court in this application, with the exercise of religion in prisons. And I think that's an area like the military where the Government is necessarily going to be involved with religion in a way that it otherwise wouldn't be.
03-9877 +++$+++ 11705 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And yet, it -- it provides an unusual framework or incentive, if you will, in the prison context to get religion. If you can find some religious group that espouses drinking beer every day or other alcoholic beverages or taking certain amounts of marijuana or no telling what or having certain clothing or other things that would alter the conditions of the prison environment, there's a real incentive here to get religion. (Laughter.)
03-9877 +++$+++ 11706 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the --
03-9877 +++$+++ 11707 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice O'Connor --
03-9877 +++$+++ 11708 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- Federal Government seems to be trying to provide those incentives. Is that a problem?
03-9877 +++$+++ 11709 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice O'Connor, I don't think upon analysis it is, and I think there's a couple of reasons why that's so. First of all, this is not an absolute entitlement to get your religious beer at 5:00 p.m. every day. It is a balancing test, and I think things like getting beer every day, getting marijuana inside prison walls would not satisfy the test.
03-9877 +++$+++ 11710 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the -- the language of the statute is pretty strong: unless the government demonstrates that the imposition is the least restrictive means and in furtherance of a compelling legislative interest. It puts quite a burden on the State.
03-9877 +++$+++ 11711 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it does, Justice O'Connor, but just to take a step back, I mean, applying that same standard in the Smith case, you yourself thought that a general law banning marijuana use outside or -- or peyote use outside --
03-9877 +++$+++ 11712 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, I think it was.
03-9877 +++$+++ 11713 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- peyote outside of prison would be justified even under that standard. I would think, a fortiori, it would be justified within prison walls. I want to make another point about the incentives, though, which I think is important. Every State in the Union provides some degree of accommodation for religion, and in many States it's majoritarian religions that are accommodated. Now, if there's going to be some incentive to engage in religiosity in prison in order to take advantage of things offered for religion that aren't available for something else, at least RLUIPA has the virtue of making sure that all religions are accommodated neutrally. So if there's any incentive, it's an incentive for religion over irreligion as opposed to between sects -- sects of religions, and I think that's the way you would have without RLUIPA involved. The other point I want to make is although there may be some extravagant claims of certain religions that would seem quite enticing, much religious exercise in many of the reported cases involve things that I don't think people are necessarily lining up to do. I mean, there are a number of lower court cases dealing with the availability of kosher food, and in prison what that means as a practical matter, is generally you are going to get cold food rather than hot food. And I don't think --
03-9877 +++$+++ 11714 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about garb that is said to be associated with the religion but also is used as a cue for gang membership? Let's say a beard. This religion requires me to wear a beard.
03-9877 +++$+++ 11715 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Ginsburg, I think -- and we cite a few cases in footnote 2 of our reply brief that suggest that in dealing with legitimate concerns about using prison -- religious symbols or other religious items as a gang signifier or a gang identifier, that the -- that there have been cases where the courts, even applying the heightened standard or RLUIPA or RFRA, have deferred to the government officials. I also think, though, it's worth noting how the Federal Government and the Bureau of Prisons has dealt with the concern that religious medallions, as opposed to beards, would be used for gang identification or gang signification. Ohio, I take it, takes the position that if you have a medallion that could be used for those purposes, you can't have it within prison walls at all. The Bureau of Prisons, by contrast, takes the position that you can have the medallion, but you have to wear it inside your shirt. So it can't be used for prison signification purposes or gang identification purposes. And I think that shows the kind of reasonable accommodation that RLUIPA or RFRA, as it applies to the Federal Bureau of Prisons --
03-9877 +++$+++ 11716 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what about a religion that it's a genuine tenet of the religion that the races are to be separated and the person says, the accommodation I want is never to be celled with someone who is not of my race?
03-9877 +++$+++ 11717 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think in a case like that -- I mean, obviously, this Court's recent decision in Johnson would suggest that -- that the prison officials are in a difficult position there and I think they could not accede to that request. And I think complying with the Equal Protection Clause in that context would itself be a compelling interest under the statute. And I think this Court in Widmar against Vincent, for example, suggested that avoiding Establishment Clause problems is a sufficient compelling interest. I would think equally avoiding the Equal Protection Clause violation in that context would also be a compelling interest, and I don't think there would be a least restrictive alternative. And so I think that the statute -- there would be no statutory violation in refusing that particular accommodation. I think there -- these show that there are ways to administer this statute in a way that's respectful of the decisions of local prison officials but also does make sure that they have a degree of sensitivity to these claims for religious exercise.
03-9877 +++$+++ 11718 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does it -- does the statute require the prison officials to evaluate the bona fides of the particular religion that's espoused? Isn't one of the groups here a Satanist group? So the religion -- the bona fides of the group have to be reviewed by the prison authorities.
03-9877 +++$+++ 11719 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice O'Connor, no more so than under the Free -- the Free Exercise Clause itself. I mean -- and as this case, of course, comes to this Court, the substantiality of the religious beliefs and that they are actually held by these individuals has been stipulated to.
03-9877 +++$+++ 11720 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We don't have to decide it here, but it's looming. And when it goes back, if it does, that will have to be resolved in this and in every case.
03-9877 +++$+++ 11721 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Justice O'Connor, but that's true under the Free Exercise Clause as well. So even the Sixth Circuit, that obviously had some problems with the statute, understood that on that score there's no more entanglement with religion under RLUIPA than there is under the Free Exercise Clause itself.
03-9877 +++$+++ 11722 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Haven't we said in at least one of our cases that the government can't favor religion over irreligion?
03-9877 +++$+++ 11723 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Mr. Chief Justice, but this Court has been clear in the context of legislative accommodations of religion in particular to make clear that that preference of religion over irreligion doesn't mean that the government cannot provide legislative accommodations of religion without providing benefits for secular organizations as well. That was the clear holding of this Court in Amos. And I think that although this Court has expressed concerns about religious accommodations when there's no guarantee that the religious accommodation will be provided to other sects -- take, for example, the Kiryas Joel case. This Court has been quite clear that there is not a constitutional problem in favoring religion over irreligion in providing legislative accommodations for religion. And as I said, in -- in Zorach against Clauson, this Court noted that that's not just the absence of a constitutional problem, but there's really a constitutional virtue in the legislature acting to accommodate religion. The Court made basically the same point in Smith in saying that even though the Free Exercise Clause did not require the special accommodation or exemption for peyote, the legislatures could do so and in doing so, they would be furthering constitutional values. If I could say a few words about the Spending Clause claim that is brought by Ohio in this case. They suggest that there's a difficulty with this legislation under the Spending Clause. Now, the court below --
03-9877 +++$+++ 11724 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that before us on the questions presented?
03-9877 +++$+++ 11725 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think it is not in the questions presented themselves, I don't think, but I think it would be fairly open to this Court to reach it because it would be an alternative ground to support the judgment below. That said, this Court doesn't have to reach it and its practice in recent cases has been when there's one constitutional claim that is -- that the Court has ruled on below, it doesn't necessarily reach the other -- the other constitutional claims. The Court did that in cases like Oakland Cannabis and the Pierce County case. And we would urge the same course here because, although the courts have divided on this Establishment Clause issue, the courts have not divided on the Spending Clause issue. All the courts that have reached it have upheld it as valid Spending Clause legislation. And I think that reflects the fact that there is a clear nexus here between the Federal funds and the Federal conditions that are being imposed. If the Federal Government is going to provide money, over $1 million to Ohio, to have prisoner meals, then certainly the Federal Government can insist that kosher meals are among the available options. And so too if the -- if the Federal Government is going to provide monies for Ohio to build prisons, they can ensure that those prisons are safe and are operated consistent with Federal policy such that there's not discrimination on the basis of race or religion. The last issue in the case, of course, is the Commerce Clause issue, and on that issue, no court below reached the issue. And we think this Court's recent admonition in the Sabri case that facial challenges are best when infrequent, applies with particular force here because --
03-9877 +++$+++ 11726 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't -- I don't understand, Mr. Clement, how your second point strengthens your first point. That is to say, if we disagree with your first point, namely that the institutionalized persons provisions are consistent with the Establishment Clause, we think that they contradict the Establishment Clause, they couldn't possibly be saved by your second point. Can you require as a -- as a condition of -- under the Spending Clause that a State violate the Establishment Clause?
03-9877 +++$+++ 11727 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, of course not, Justice Scalia, and I must have misspoke. My point is they raise three arguments that are all alternative arguments to support the judgment below. My burden is to defeat all three of them to show -- if the Court reaches them. So I have to show that there's no Establishment Clause violation, which we -- we've certainly made that argument in the brief and here today, and that there's no Spending Clause violation, and that there's no Commerce Clause violation. The -- in this case the Commerce Clause claim has a completely abstract quality, and indeed, the only temptation to reach the issue at all would be that the -- since RLUIPA has a jurisdictional element, the resolution of the Commerce Clause is so clear that it might be tempting to reach it. But I think the better course would be for this Court to allow that issue to be sorted out in the -- in the lower courts. If there are no further questions, I would reserve time for rebuttal.
03-9877 +++$+++ 11728 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Clement. Mr. Goldberger, we'll hear from you.
03-9877 +++$+++ 11730 +++$+++ FALSE +++$+++ MR. GOLDBERGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice Rehnquist, and may it please the Court: This case comes before the Court on a motion to dismiss, and the facts, the underlying facts, involving the motion to dismiss are in dispute, and it's a serious dispute. And those should be reserved for -- for the court below, in particular the claims that our clients' religions are affiliated with gang activities, but there are serious disputes about that. There is a Wicca chaplain that's been hired by the Department of Corrections in Wisconsin. Two of my former students, who are upstanding members of the bar in every respect, are Asatrus, so that these are matters that should be preserved for the court below. This Court has made -- asked many questions about the accommodation of religion, and the suggestion is, well, isn't there favoritism? Doesn't it encourage favoritism one way or the other? But the answer to each of those questions is the same with respect to the current accommodations already provided by the Ohio Department of Corrections with respect to mainstream religions, and in fact, we believe on remand, we will be able to show that there is a preference for accommodating mainstream religions as opposed to non-mainstream religions. Similarly, there has -- there are -- there have been questions by this Court that -- that the standard imposed on the State of Ohio by RLUIPA is this particularly difficult or tortuous standard. In fact, under State law in Humphrey v. Lane, which is cited in our brief, the State of Ohio Supreme Court has already imposed a similar standard with regard to the religious accommodation claims of prison guards.
03-9877 +++$+++ 11731 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is Satanism a non-mainstream religion?
03-9877 +++$+++ 11732 +++$+++ TRUE +++$+++ MR. GOLDBERGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With all due respect, Your Honor, I understand that there is some uncomfortable feeling about the nature of my clients' religion. As the Court will note in a -- a footnote in our brief, it has been reported in the press that there is an adherent in the Royal Navy of Satanism, and the Royal Navy has agreed that if he's killed in the line of duty that there will be religious rights at the end consistent with his religion and, in fact, it amounts to a recognition of his religion.
03-9877 +++$+++ 11733 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What does this have to do with it? The Royal Navy you say?
03-9877 +++$+++ 11734 +++$+++ TRUE +++$+++ MR. GOLDBERGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- (Laughter.)
03-9877 +++$+++ 11735 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Our Royal Navy? (Laughter.)
03-9877 +++$+++ 11736 +++$+++ TRUE +++$+++ MR. GOLDBERGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The answer is yes then. It is a non-mainstream religion. And I think that it's important for us to assure that religious groups of all stripes are -- are accommodated in the -- in the context --
03-9877 +++$+++ 11737 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ To what extent? And I asked the -- the racist -- the religion that says God wanted the races to be separated and the accommodation is do not cell me with someone of another race.
03-9877 +++$+++ 11738 +++$+++ TRUE +++$+++ MR. GOLDBERGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that there is -- it -- the statute is pretty clear that if there is a -- if it's compelling or requiring the State of Ohio to engage in an unconstitutional activity -- and that would be a segregation of the races -- that there's a compelling justification -- or a compelling governmental interest in not complying with the statute or saying that the statute does not apply under these circumstances.
03-9877 +++$+++ 11739 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How about racist literature but it's under the aegis of a religious organization? And that -- suppose the prison does not permit, say, a member of the Aryan Nation to get that racist literature -- to get racist literature but --
03-9877 +++$+++ 11740 +++$+++ TRUE +++$+++ MR. GOLDBERGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To the extent that there is bona fide religious literature that is racist, there are -- we believe that the Constitution permits Congress or any legislative body to accommodate religion in isolation from other religious right --
03-9877 +++$+++ 11741 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, when you --
03-9877 +++$+++ 11742 +++$+++ TRUE +++$+++ MR. GOLDBERGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- fundamental rights.
03-9877 +++$+++ 11743 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ When you use the term bona fide, you're introducing a new kind of factor. Do courts evaluate the bona fides of someone claiming a religion?
03-9877 +++$+++ 11744 +++$+++ TRUE +++$+++ MR. GOLDBERGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe they -- as a matter of course, prison officials have to determine whether there's a good faith request for religious accommodation or whether the person is trying to seek something under -- as a ruse.
03-9877 +++$+++ 11745 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I take it we've done that in the conscientious objector cases, United States v. Seeger and Gillette.
03-9877 +++$+++ 11746 +++$+++ TRUE +++$+++ MR. GOLDBERGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. But to let me finish my -- my answer to Justice Ginsburg, if -- if this Court is of the view -- or members of this Court are of the view that it would be content discrimination, for example, although we believe that you can accommodate one fundamental right separately from the other fundamental rights, then of course, if there were a First Amendment violation, that too would be a compelling governmental interest in justifying refusal to apply RLUIPA. So that there is no serious problem here. And in fact, there is no reported case that any racist literature has ever been permitted in -- into the prisons that we've been able to find.
03-9877 +++$+++ 11747 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the content discrimination, I take it, would be raised by someone who wants to get this for political or psychological reasons --
03-9877 +++$+++ 11748 +++$+++ TRUE +++$+++ MR. GOLDBERGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's --
03-9877 +++$+++ 11749 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you would say, I'm not challenging the right of the -- as a member of this religious sect. I just say, me too.
03-9877 +++$+++ 11750 +++$+++ TRUE +++$+++ MR. GOLDBERGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, as I say, to the extent that that's right, if there were content discrimination along those lines and -- and the Court said that there could not be -- it was the Court's view that it could not be accommodated for religion only, then of course the -- then there would be a compelling governmental interest in avoiding content discrimination. In terms of whether or not there's a compelling justification of dealing with inflammatory literature, I don't think that's in dispute in this case.
03-9877 +++$+++ 11751 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I -- I take it underlying Justice Ginsburg's question is -- is the concern that this accommodation is unequal because there are other First Amendment rights that are not given the -- that are not given the same precedence.
03-9877 +++$+++ 11752 +++$+++ TRUE +++$+++ MR. GOLDBERGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first of all --
03-9877 +++$+++ 11753 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That -- that was at least an underlying concern of her question, and I think it's a legitimate concern.
03-9877 +++$+++ 11754 +++$+++ TRUE +++$+++ MR. GOLDBERGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, as -- as I read Amos, Amos says that the accommodation of religion need not come --
03-9877 +++$+++ 11755 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but in Amos, the Court was just -- the -- the government was just saying that one of its own statutes could be accommodated. This is something different.
03-9877 +++$+++ 11756 +++$+++ TRUE +++$+++ MR. GOLDBERGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's not -- I'm not sure that it's different for constitutional purposes, that if there is a differential accommodation which the Court concludes violates the First Amendment rights of someone else because there's content discrimination, I'm not -- there is no reason to treat the source of the accommodation as dispositive. It's whether -- it is the presence of the accommodation and whether it's broad enough or narrow enough. On the other hand, the -- we -- we do want to make clear that there are numerous accommodations that involve First Amendment rights that do not overlap with -- with religious exercise or accommodation of religious exercise. To the extent that there is political gatherings, they're not entitled under the First Amendment to the -- they're not accommodated in the same way that religious congregations in prison are accommodated. And this Court so far has found there to be no constitutional violation for that distinction. And to the extent that there's a compelling governmental interest, there is little doubt that the -- that the prison officials can simply say no. This -- we will not accommodate it. We're not required to accommodate it under the statute. The -- it is important to note, that the -- these same accommodations are routinely granted to mainstream religions and that they do not shift burdens to third parties. There's been substantial argument that there is a substantial shifting of burdens to third parties. In fact, where third party claims have been made by the State of Ohio was that basically that the cost of security is increased because now it takes more -- or the cost of prison administration is increased because it takes more time to take care of these claims and requests for accommodation than there would be if they didn't have to attend to these --
03-9877 +++$+++ 11757 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm -- I'm sorry. You've lost me. I don't know what you mean about shifting burdens to third parties. What --
03-9877 +++$+++ 11758 +++$+++ TRUE +++$+++ MR. GOLDBERGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the argument is that when, for example, a religious accommodation forces -- and -- and -- the third parties to chip in, as they had to do in Caldor, for example, private third parties, that that renders the accommodation unconstitutional. And the State has been arguing that the lifting of burdens on the religious exercise of our clients makes it harder for their prison guards --
03-9877 +++$+++ 11759 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Goldberger. Mr. Cole, we'll hear from you.
03-9877 +++$+++ 11761 +++$+++ FALSE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: In prison's unique environment, RLUIPA violates the Constitution. It directly and impermissibly advances religion and it would have to be -- have to be -- perceived by objective observers as endorsement.
03-9877 +++$+++ 11762 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me ask you this -- this question because it -- it -- I think it goes to the -- the heart of what I think is the problem in this case. If we are going to recognize a sphere of accommodation, which we have done previously, I think we have to recognize that the -- that the object of accommodating and the effect of accommodating is, in one sense, to benefit -- I mean, in an obvious sense, is to benefit religion. By recognizing a sphere of accommodation, in effect, I think the Court has said there is a sphere in which religion can be benefitted that does not rise necessarily to the level of government proselytization or -- or government endorsement. And it seems to me that the argument that you're making is that if the government endorses at all, it's immediately in -- in the -- the realm of establishment. Am I -- am I missing something in your argument?
03-9877 +++$+++ 11763 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think you are, Your Honor, and if our brief came across that way, I -- I think it overstates the line that we're asking this Court to draw. The Court has recognized, in talking about accommodations, that of course accommodations by their very nature benefit religion. That's part of an accommodation and could be said to have the effect. But the Court has said then we must draw lines. That is, the Court has recognized that you can't just say, oh, it's an accommodation which means that's fine, it's always going to be fine if it's an accommodation. In fact, Justice O'Connor said we need to draw lines because otherwise everything will just become, oh, that's an accommodation.
03-9877 +++$+++ 11764 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. And -- and why is the line violated here?
03-9877 +++$+++ 11765 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The line is violated here, Your Honor, because of the unique incentives and burdens that arise in the prison context.
03-9877 +++$+++ 11766 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what the statute appears to be doing is to try to go back to the pre-Employment Division v. Smith case standard under the Free Exercise Clause, which did allow for accommodation of religion. And that appears to be what this statute is designed to do.
03-9877 +++$+++ 11767 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But in -- in prison's unique environment, Your Honor, where there are so many deprivations of liberty and then to say the one -- one way you can get out from under the thumb of all these prison regulations is to claim religion, and that's going to give you a powerful weapon not again to --
03-9877 +++$+++ 11768 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but before Employment Division v. Smith, wouldn't we have had the same question arise in the prison context, and we would have dealt with it under the then-standards.
03-9877 +++$+++ 11769 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but the Court has -- has always articulated that the rules -- well, in Turner and O'Lone, the Court articulated that the rules are different in prison, citing to the intractable problems of prison administration and the -- and the problems of subjecting --
03-9877 +++$+++ 11770 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But had the Court ever said that the Free Exercise Clause couldn't be applied in the prison context?
03-9877 +++$+++ 11771 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. Going -- going back to the Beto case, the Court said free exercise applies in prison, but in O'Lone, the Court said it applies in prison but the standard what we're going to use is one that's very similar to -- to rational basis.
03-9877 +++$+++ 11772 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Then I think you're saying that in order to exceed what free exercise requires in a prison necessarily forces you into establishment. And I think you're saying the reason it does so is that there are so many incentives on the part of prisoners to claim religion, that that's the only way you can sort of keep the genie in the bottle. Isn't that the -- the essence of your argument?
03-9877 +++$+++ 11773 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We're not asking for that bright line rule, Your Honor. It could well be the case that providing kosher meals, for instance, whether that's required by the Free Exercise Clause or not, it might go marginally beyond what free exercise requires. That's an accommodation that would be perfectly legitimate. But to have a rule that says anytime you bring any request of any kind for an accommodation from any rule, it's going to be treated differently and better because it's religion --
03-9877 +++$+++ 11774 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it -- but -- but that is not what the rule says. Number one, as -- as your brother on the other side pointed out, there's got to be some determination made as a threshold matter as to whether this is even a religious claim or -- or whether it's just gaming the system. So there's nothing automatic. Number two, if there are, as -- as there frequently will be, in the prison context important governmental interests which can only be served by denying the -- the request, the request can be denied. And it seems to me that if these are not sufficient recognitions of the -- of the prison context, then I don't know what kind of a rule we can have that would satisfy you except to say if it isn't absolutely required by free exercise, it is establishment.
03-9877 +++$+++ 11775 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I don't think we need to go that far. I -- I think we could look at given types of accommodations and say if a legislative determination is made that this type of accommodation with respect to this type of request is appropriate, based on a balancing of all the factors to consider in that particular case --
03-9877 +++$+++ 11776 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You -- you --
03-9877 +++$+++ 11777 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that might not slide --
03-9877 +++$+++ 11778 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You mean specific accommodations like you can have kosher foods, you can wear a religious medal, you can have a tattoo? I mean, you're -- you're asking the legislature to be that specific.
03-9877 +++$+++ 11779 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, a narrow, targeted -- I guess the point is, Your Honor, a narrow, targeted accommodation would be different in our view than this broad, wonder bus approach to accommodation.
03-9877 +++$+++ 11780 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It -- it would also be rather a discriminatory one, wouldn't it? I mean, one -- one point that we have got to be concerned about, whether we're dealing with accommodation or whether we're dealing with -- with flat-out establishment, is distinction among religions. And I think you're saying if they do distinguish among religions, we don't have this problem, but I think that lands you from the frying pan into the fire.
03-9877 +++$+++ 11781 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, I -- I don't believe so because I think if, for instance, the legislature said, you -- you shall, absent some compelling need, provide prisoners with a diet that meets their religious requirements, that would not discriminate among religions. It would be narrowly tailored to some perceived problem that might exist.
03-9877 +++$+++ 11782 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ A guy comes along in a different religion and says, we're omnivorous, but we got to -- we got to wear medals. No statute that says medals are okay. It -- it -- you know, I realize the level of generality in your example is higher. The -- the discrimination is not quite so blatant, but it's a pretty tough job to come up with -- would be a tough job to come up with statutes without picking and choosing among religious demands.
03-9877 +++$+++ 11783 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And, Your Honor, we believe that in prison's unique environment, to the extent you go beyond the Free Exercise Clause, it raises special problems and special concerns that need to be dealt with --
03-9877 +++$+++ 11784 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why can't they --
03-9877 +++$+++ 11785 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- on a case by case basis.
03-9877 +++$+++ 11786 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But why can't they be dealt with under the statute as it is written, saying that if you -- if it is a bona fide request, and you, the prison, determine that in fact you -- you have a compelling State interest that cannot be served in any other way, you can say no? Why is that insufficient and -- and why does that -- why is that, therefore, the reason that -- that jumps us into an Establishment Clause violation every time?
03-9877 +++$+++ 11787 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's insufficient, Your Honor, because it doesn't change the underlying fact that the request itself, whatever the ultimate outcome on the request is, the request itself gets treated differently and better merely because it's religious. This is a --
03-9877 +++$+++ 11788 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, are you saying that -- that a statute is unconstitutional to recognize a prisoner's right to free exercise unless it also has a -- a kind of a litany of sections recognizing speech rights, recognizing privacy rights, et cetera?
03-9877 +++$+++ 11789 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. I'm -- I'm not suggesting that.
03-9877 +++$+++ 11790 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then it's got to single out religion.
03-9877 +++$+++ 11791 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and as the Court noted in Amos, these type of statutes are necessarily going to single out religion, but that doesn't shield them from Establishment Clause scrutiny just because they take the form of being directed at religion and providing a benefit that's -- that's labeled as an accommodation. I mean, for instance, Congress could say, look, we think it's difficult for State prisoners to practice their religious beliefs when they can't go to church. So absent some compelling State interest and least restrictive alternatives, the prisons need to arrange to release prisoners once a week to go to the church or synagogue of their choice. Well, that would provide an awfully powerful incentive inside prison walls for prisoners to -- to claim religion.
03-9877 +++$+++ 11792 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Sure it woul --
03-9877 +++$+++ 11793 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So maybe that's --
03-9877 +++$+++ 11794 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if you did it under the statute, you would clearly have a reason for saying no.
03-9877 +++$+++ 11795 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Cole, are you sure that this statute doesn't go beyond pre-Smith -- our pre-Smith law? I'm not aware that our pre-Smith law would have defined religious exercise as broadly as this statute defines it. I guess this is something Mr. Clement ought to speak to as well. It says, the term religious exercise includes any exercise of religion whether or not compelled by or central to a system of religious belief.
03-9877 +++$+++ 11796 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Your Honor. That is --
03-9877 +++$+++ 11797 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did our prior Smith cases go that far? I'm not aware that --
03-9877 +++$+++ 11798 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, they did not, Your Honor, and I think that's an important as well, that once someone has an -- a bona fide religion and -- and prison officials can challenge whether this is in fact a religious set of beliefs. But if they have a religious set of beliefs and if they are sincere, then you can't challenge this particular request as not being mandated by the religion.
03-9877 +++$+++ 11799 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They don't even have to say my -- my religion requires me not to eat this food. They just say, you know, I'm --
03-9877 +++$+++ 11800 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For religious reasons, I would prefer to do this.
03-9877 +++$+++ 11801 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
03-9877 +++$+++ 11802 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is your argument in response to Justice Souter? You said it is not the following. It is not that the State has to list, along with these religious matters, the Second Amendment, the First Amendment, et cetera. It's not that. You then seem to say that the argument is that a person who files a piece of paper and claims to be religious, that they have to consider it, and it's impelled only by religion. I suppose the same thing is true of a church that applies for a tax exemption. So I don't think that you could say that automatically that fact that they're going to give the church a tax exemption or that they're going to give the religious person some special consideration, that that in and of itself violates the Establishment Clause. Very well. What does?
03-9877 +++$+++ 11803 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I wish I could draw a brighter line rule --
03-9877 +++$+++ 11804 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. But I just need to know where you're going --
03-9877 +++$+++ 11805 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
03-9877 +++$+++ 11806 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- generally. I don't need a bright line rule. I'm just trying to find out what it is about this that violates the clause if it isn't the first thing or the second thing that I mentioned.
03-9877 +++$+++ 11807 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's the magnitude by which Congress has enhanced the religious right. That is, we compare what the Constitution requires State prison officials to do and we say, how far has Congress moved the ball.
03-9877 +++$+++ 11808 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Fine. Now, in respect to that, we have two points. One was Justice O'Connor's I think, which is that Congress is not enlarging it, but for my second qualification, beyond what it would have been if Smith had never been decided. And the second is Justice Scalia's point, which is but there is one respect in which Congress did enlarge it, namely, that the right doesn't have -- the belief doesn't have to be central. It could be -- well, he just read that. So is your whole argument then pinned on that latter point? And if it is not, again, what is it?
03-9877 +++$+++ 11809 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, our argument is pinned on this Court's decisions in Turner and O'Lone, which we see as establishing the baseline for what type -- for what the Constitution requires in terms of free exercise in prison, and then we use that baseline and compare the standard imposed there to the standard Congress is seeking to impose through RLUIPA and compare the magnitude of the two, understanding, as this Court has said in Lemon, that lines of demarcation are difficult to perceive. It's difficult to say exactly where that line should be.
03-9877 +++$+++ 11810 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're saying if Turner had come up prior to Smith, the Court would have said that Turner trumps pre-Smith law, and you don't have to follow pre-Smith law in the prison.
03-9877 +++$+++ 11811 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I believe so, Your Honor, given prison's unique environment.
03-9877 +++$+++ 11812 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I understand --
03-9877 +++$+++ 11813 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe Turner and O'Lone are prison cases that talk about what the Constitution means in prison, understanding that in prison there need to be changes to what we would otherwise see as the inmates' constitutional rights if they were not in prison.
03-9877 +++$+++ 11814 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, I -- I understand the argument now, which has been helpful. Very well. From the prison's point of view, why is it so burdensome since you would have thought security is a compelling interest, prison administration is a compelling interest, so that really all we have to do is think about this and look to see whether there isn't some reasonable way of accommodating the request?
03-9877 +++$+++ 11815 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think that the burdens in the prison environment are twofold. First, RLUIPA forces prison officials to change the balance they would otherwise strike between safety and accommodation, and by changing that balance, changing the margin of safety, if you will, they're now imposing risks on the other inmates that are in prison. And these aren't merely --
03-9877 +++$+++ 11816 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think -- I think you may exaggerate what it takes to establish a compelling State interest. I mean, we -- this -- this Court held in the -- in the pre-Smith days that it was a compelling State interest to -- to prevent members of the Air Force from wearing yarmulkes. I mean, if that's a compelling State interest, I think it's pretty easy to get most anything declared a -- a compelling State interest under this statute, don't you think?
03-9877 +++$+++ 11817 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. And compelling State interest doesn't present a problem to the State of Ohio or to the other States that are operating under this statute. What it -- what presents the problem is the least restrictive alternative part of that which subjects State prison officials in their day-to-day judgments regarding prison operations to a strict scrutiny analysis on the back end.
03-9877 +++$+++ 11818 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that goes beyond pre-Smith too, doesn't it? Least restrictive alternative.
03-9877 +++$+++ 11819 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the least restrictive alternative, which is what puts the teeth in RLUIPA and what's -- what creates the problem --
03-9877 +++$+++ 11820 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We now have some experience in the Federal system where the same standards apply under RFRA. And you are positing this terrible disturbance of prison administration in the -- what is it -- 6 years that -- that RFRA has been in force for Federal prisons. Have there been -- has there been this terrible disruption? Have there been -- have the accommodations required so much of the prison administrators?
03-9877 +++$+++ 11821 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the United States claims no, Your Honor, of course. But when we look back at the experience of the States with RFRA, before it was declared unconstitutional, we presented substantial evidence in the -- in the joint appendix with regard to the way in which there was an explosion of demands for accommodations by prisoners from previously unheard of religions. There was an expansion -- an explosion of claims of conversion within --
03-9877 +++$+++ 11822 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but now that some of that has gotten sorted out through the experience of the Bureau of Prisons on the Federal side, one would expect there would be less of those far-out claims. The -- you would expect when a statute is new, that there might be some claims that we would recognize as frivolous after there's been experience under it.
03-9877 +++$+++ 11823 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor, but the difficulty that doesn't seem to go away with the least restrictive alternative test is -- is the possibility, as this Court noted in Turner, that every judgment every day is subject to some court somewhere finding that there was a less restrictive way of achieving the goal. And -- and we see that --
03-9877 +++$+++ 11824 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is true. Now there you're in the dilemma. I mean, you're putting yourself there in the same position that virtually every official is in in the United States but for judges who have -- who have to worry about the court of appeals. But anyway, the -- the -- (Laughter.)
03-9877 +++$+++ 11825 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You see -- now, the answer to that argument in your case, you're in a vice. They put you in a -- in a kind of pincers because where you have a good argument, they say, well, that doesn't violate the statute, and where your claim is weak, they say, well, it shouldn't be a -- it should violate the statute. And the difficulty with being in pincers like that is you can't win. And the virtue of it is you shouldn't win. All right. So -- so how do you get out of this -- of the -- of that kind of an argument?
03-9877 +++$+++ 11826 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's not particularly encouraging, Your Honor, but -- (Laughter.)
03-9877 +++$+++ 11827 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but -- your point.
03-9877 +++$+++ 11828 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. And -- and I guess all I can do is go back and compare the accommodation if that's what this is that's at issue here with that that was at issue in Amos to say these employers don't need to comply with this one Federal statute and this one set of obligations. And I asked, well, okay, so an employer. Is that going to make IBM switch from being a computer manufacturer to being a religious services provider because, boy, if we do that, we can get out from underneath title VII's nondiscrimination mandate? I don't think so. But if I look in prison and I say, what is going to be the effect on the ground with respect to people claiming religion or converting to religion if I tell them there's going to be a different regulatory regime that applies to you --
03-9877 +++$+++ 11829 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then why hasn't that been the effect on the Federal ground.
03-9877 +++$+++ 11830 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I -- I don't know that it hasn't. I mean, I'm -- I'm surprised in a sense to hear that claim because in brief period in which RFRA did apply to State prisons, there was an explosion of these demands. And -- and I would direct the Court to, I believe it's, 204, 210, 211, and 212 in the joint appendix to see some of the ways in which there's been this impact. I'd also --
03-9877 +++$+++ 11831 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'll -- I'll grant you that, but it seems to -- I mean, Justice Ginsburg responded to that by saying that these things get sorted out. At the beginning you get all sorts of loony claims. As time goes by, you get fewer of them. And -- and if -- if they weren't getting few of them, I would have expected the United States to make a different representation.
03-9877 +++$+++ 11832 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I don't know that the fact that -- that strict scrutiny might become -- what that means, what that's going to require. And arguably, this is a slightly different strict scrutiny than other strict scrutinies because of some of the legislative history, to the extent one -- one wants to look at that. And -- and that's, I guess, the problem. As we flesh that out, during that entire time, we're saying it's all right to burden other inmates in prisons. It's all right to burden prison officials. It's all right for Congress not to burden Federal prison officials, but for Congress to burden State prison officials with this new set of obligations.
03-9877 +++$+++ 11833 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I don't know what that's got to -- you know, you may or may not have an argument there, but I don't know what it's got to do with the meaning of the Establishment Clause.
03-9877 +++$+++ 11834 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, the --
03-9877 +++$+++ 11835 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And they're not burdening you anyway -- anyway. Just don't take the money.
03-9877 +++$+++ 11836 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
03-9877 +++$+++ 11837 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It comes with the money.
03-9877 +++$+++ 11838 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm --
03-9877 +++$+++ 11839 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't want the burden? Don't take the money. I mean, they -- they do that all the time.
03-9877 +++$+++ 11840 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure I agree with that, Your Honor, for -- for a couple of reasons. First, this also purports to be Commerce Clause legislation, in which case it would be a mandate upon the States whether --
03-9877 +++$+++ 11841 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What we have before us in this case is -- is a case covered by the -- the Spending Clause. So we don't have to grapple with the Commerce Clause for now.
03-9877 +++$+++ 11842 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but secondly, Your Honor, with respect to the Spending Clause issue, this Court has said in Dole that there needs to be relatedness between the spending, that if there's going to be strings attached, they actually have to be attached to the Federal money in some meaningful way. And here, Congress is relying on spending, most of which has absolutely nothing to do --
03-9877 +++$+++ 11843 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the Sixth Circuit didn't pass on the Spending -- Spending Clause issue.
03-9877 +++$+++ 11844 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, they did not, Your Honor, but we --
03-9877 +++$+++ 11845 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it isn't raised by your opponent's petition.
03-9877 +++$+++ 11846 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- that's true, Your Honor, but it is available to the Court as an alternate ground of affirmance of -- of the decision below.
03-9877 +++$+++ 11847 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, if we're looking for that.
03-9877 +++$+++ 11848 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor --
03-9877 +++$+++ 11849 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There was one question brought up about Ohio's own practice. But you -- you say we have no obligation to relieve burdens. If we did, we would violate the Establishment Clause. The point was made that Ohio pays for chaplains, but it doesn't pay for, say, psychologists to come in for agnostics. So aren't you right there violating the Establishment Clause on your own theory?
03-9877 +++$+++ 11850 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe so, Your Honor, because our theory isn't that anytime you go beyond what free exercise requires, you're immediately into an Establishment Clause violation. We recognize that there is a play in the joints. And providing chaplains, given the -- the rich history and tradition of doing so in prisons, seems to fall very comfortably within that play in the joints. The question is when have we gone too far. When has our accommodation slid over, as the dissent put it in Texas Monthly, into a -- or an impermissible incentive to practice religion?
03-9877 +++$+++ 11851 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask this question, Mr. Cole? I am troubled also, as you point out, about the least restrictive language in the statute. But as I try and apply it to this particular case, weren't most of the allegations that the petitioners made is that they were treated differently from other mainstream religions and that the accommodation would have been, well, treat them the same, which would have been the least restrictive alternative? It wouldn't have created all the problems you describe. And they say they don't -- can't have group meetings. They -- if they were treated exactly the same, would that -- that would satisfy the least restrictive alternative part of the statute, wouldn't it? And why would that be such a burden?
03-9877 +++$+++ 11852 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, first, I'm not sure that their claim is that, oh, we're being treated differently and worse. Their claim was we want to get together for congregate religious services or, in Mr. Hampton's case -- he was a Wicca -- he wanted certain objects, including a quartz crystal that he would be able to keep in his cell.
03-9877 +++$+++ 11853 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Don't mainstream religion adherents have certain objects they'd like to keep in their cell?
03-9877 +++$+++ 11854 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They -- they may well, Your Honor, and -- and the point is in each of those cases, prison officials look at the object and say what's the potential for harm here. Should we let them have it in their cell? There's a -- there's a practice in Ohio prisons of --
03-9877 +++$+++ 11855 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The mainstream person, if there's a potential for harm, they wouldn't let them keep it in the -- in the cell, would they?
03-9877 +++$+++ 11856 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Your Honor.
03-9877 +++$+++ 11857 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And in other words, is it really -- although the language in the statute seems to go farther, is there anything really at stake here beyond saying treat us the same as you treat mainstream -- members of mainstream religions?
03-9877 +++$+++ 11858 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Your Honor. Absolutely.
03-9877 +++$+++ 11859 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what is the best example of that?
03-9877 +++$+++ 11860 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's a -- a request for a prisoner who wants the grooming regulations changed with respect to him. He's a prisoner who's got a history of contraband violations. He's involved in a -- in a prison betting pool and carries -- tries to carry betting slips and secret them on his person. And so if he could violate the grooming regulations, the concern is he might use that to hide contraband. There are prisoners that want to wear their hair in a certain way to signify gang affiliation, and instead, they claim, well, I need this for religious purposes, but what's really going on is they want to signify gang affiliation.
03-9877 +++$+++ 11861 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you want us to say that --
03-9877 +++$+++ 11862 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It would seem to me that would be a compelling interest to say you can't do that.
03-9877 +++$+++ 11863 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, again, I'm -- I'm sure there's a compelling interest. The question is the least restrictive alternative. Are we going to be able to meet every Federal judges' view of is this the least restrictive way we could go about achieving this compelling interest? There's no doubt that prison security is going to be recognized as a compelling State interest, but the difficulty is the least restrictive alternative test.
03-9877 +++$+++ 11864 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I -- I suppose you're saying you want us to make the holding that -- one of the holdings you'd be satisfied with is that while some accommodation is -- is appropriate, this is extreme accommodation. What's your best case for that? I -- I just can't remember a case in which we've tried to ask whether every form a request for accommodation has to be acknowledged. Is -- is this the only case that you've come across?
03-9877 +++$+++ 11865 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Frankly, Your Honor, other than RFRA, it's the only time Congress has gone this far. And so to say that there's a lack of case law on this is more to suggest that there's been settled understandings that we can't go this far rather than --
03-9877 +++$+++ 11866 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I guess what I'm asking is what's the closest analogy you can --
03-9877 +++$+++ 11867 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In our brief we -- we looked at Lee v. Weisman in what the Court called subtle and indirect coercion to religion when it was merely standing for a -- a invocation during graduation once a year. And we contrast that with what's going on here and the constant pressure day after day, if you want this set of benefits, get religion.
03-9877 +++$+++ 11868 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about the American Indian who didn't -- or was it -- I think it was an American Indian. But -- who didn't want to be known -- it was a woman and she didn't want to known as a number. She wanted a name. That was a religious basis. And Social Security -- I think the Court hold -- didn't have to give her that.
03-9877 +++$+++ 11869 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
03-9877 +++$+++ 11870 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So that to me stood for the proposition that administrative considerations play an important role in deciding whether you've hit upon the least restrictive alternative. And as long as that was the law, then you're okay. And that was a Supreme Court case I think. I may be misremembering.
03-9877 +++$+++ 11871 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, Your Honor, it's not that we couldn't potentially win these cases under least restrictive alternative. The question is by changing the standard to that, changing the standard to one in which these prison officials -- I mean, Congress is, in a sense, asking Federal judges to sit as overseers of religious life in the prisons across the 50 States. And given what this Court said in Turner, given what this Court said in O'Lone about the intractable problems that prison officials face, it just seems an inappropriate task and one that, if motivated with the desire of increasing religiosity in prison, seems to cross the Establishment --
03-9877 +++$+++ 11872 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're asking us --
03-9877 +++$+++ 11873 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is it -- why is it worse for -- for judges to be overseers of religious life in prison than it is for wardens to be overseers of religious life in prison? I mean, somebody has to say what the lines are, what will -- what will be accommodated and what won't.
03-9877 +++$+++ 11874 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, and it's --
03-9877 +++$+++ 11875 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that someone is going to be a government official. I have no reason to believe that wardens are -- are better at it than judges except with respect to, you know, security and administrative convenience, which we will honor under this statute.
03-9877 +++$+++ 11876 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Except, Your Honor, this Court noted in Turner, I believe it was, that the need for judicial deference is particularly strong when you're dealing with situations that create ripple effects in prison. And it's difficult for Federal judges to know. They don't have prison management experience. They don't have 20 years on the ground like most prison wardens do to say this -- this accommodation will work and this one won't.
03-9877 +++$+++ 11877 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I think that means that they will give great deference to what the -- what the wardens of the prisons say is a compelling interest of -- of the penal system.
03-9877 +++$+++ 11878 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If they will, it's not in the face of the statute, Your Honor. I mean, it's not in the face of the statute. It says compelling State interest and least restrictive alternative. I would just like to note --
03-9877 +++$+++ 11879 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can you -- can you give me an example? Because most of the things I think of is either you can have kosher food or you cannot. Either you can wear a yarmulke or you're not. There's not other -- another alternative. Most of these things are yes and no. What is the case where, well, you can't have this but we'll give you something lesser?
03-9877 +++$+++ 11880 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I believe Mr. Clement noted that -- that there was a case that held that, okay, you can't wear the medallion on the outside of your shirt, you can wear it on the inside of your shirt. So that would be a less restrictive alternative for not allowing you to use the medallion, I guess, as a gang identifier. Now, it doesn't really deal with the problem that as soon as the guard is not looking, again it can be pulled outside the shirt and can be used as a gang identifier.
03-9877 +++$+++ 11881 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, maybe if the warden says that, the court would say, fine, you don't have to accommodate.
03-9877 +++$+++ 11882 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Maybe, Your Honor, but -- but the question is, is it permissible for Congress to create incentives for prisoners to say, yes, I'm religious because I want these other benefits? Can Congress really say, boy, we'd like you to be religious, and the way we're going to provide that incentive is by giving you a better shot at getting out from the rules in prison? It's not a guaranteed shot from getting out, but it's a better shot at getting out from the rules that apply to everybody else in prison and to get that, you have to become religious.
03-9877 +++$+++ 11883 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Better shot than -- better shot than what? Better shot than the -- than the Free Exercise Clause alone would allow?
03-9877 +++$+++ 11884 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Better shot than --
03-9877 +++$+++ 11885 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And aren't you arguing that in the prison context, once you get beyond the free exercise line, you are into establishment?
03-9877 +++$+++ 11886 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, and Your Honor, I was not careful there. I should say much better shot. I mean, again, it's this point that --
03-9877 +++$+++ 11887 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. But how do we administer it? How does anyone administer that -- that kind of a test?
03-9877 +++$+++ 11888 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
03-9877 +++$+++ 11889 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It can -- it can be better but not much better?
03-9877 +++$+++ 11890 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think by comparing to what's gone before. In fact, the Court has adopted a version of that approach already. In Caldor, the Court said if it's unqualified and imposes a burden on others, that's going to violate the Establishment Clause. I see my time is up, Your Honor.
03-9877 +++$+++ 11891 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It is. Thank you, Mr. Cole.
03-9877 +++$+++ 11892 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
03-9877 +++$+++ 11893 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Clement, you have 4 minutes remaining.
03-9877 +++$+++ 11895 +++$+++ FALSE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. Just a few points in rebuttal. First of all, I'd like to note the anomaly that much of the argument of General Cole would be an argument for why the State constitutional provision that gives higher protection for freedom of conscience in Ohio is itself unconstitutional.
03-9877 +++$+++ 11896 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why don't you address the ways in which this act goes beyond our former free exercise --
03-9877 +++$+++ 11897 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd be happy to do that, Justice O'Connor. I think that there's been an exaggeration of how far it goes beyond. Now, I want to be clear about one thing, which is this Court, even before Smith and O'Lone, said that there was going to be deference to prison officials and a Turner standard would apply. So to the extent that there's a little less deference here than under the O'Lone standard, that is a modification. The centrality requirement, though, is not something that can be charged to RLUIPA or to RFRA because even before the Smith case, this Court in Ling and Hernandez was moving away from centrality and --
03-9877 +++$+++ 11898 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Also not compelled -- not compelled -- by religion. You just say, you know, I -- I want to give up everything except candy for Lent, and the -- the prison has to accommodate you. Right?
03-9877 +++$+++ 11899 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia --
03-9877 +++$+++ 11900 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's not compelled. I -- you know, I could do something else. But I had thought that our prior religion cases did -- did, indeed, require some religious compulsion than just I -- you know, I'd like to do this as a religious matter.
03-9877 +++$+++ 11901 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, I don't think this Court has ever in its accommodations cases held that the government can only accommodate those things that are central. I don't know for sure, but I rather doubt that employing co-religionists in a gymnasium is central to the practice of any faith. Yet, in Amos, this Court upheld that as a valid accommodation. And I do think the centrality requirement --
03-9877 +++$+++ 11902 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the LDS.
03-9877 +++$+++ 11903 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What's that?
03-9877 +++$+++ 11904 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I said you may underestimate the LDS. (Laughter.)
03-9877 +++$+++ 11905 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I may, Mr. Chief Justice. But again -- but -- but to the extent I do, I think those are questions that are best to be kept out of the courts, which is why even before Smith this Court moved away from centrality. It's why even Justice O'Connor, who otherwise was in disagreement in Smith, also agreed that we should get rid of the centrality requirement. And if you look at some of the cases that are actually decided under RLUIPA, the cases involve things like Muslim prayer oil and they -- the cases -- the Seventh Circuit, for example, allows it. Now, we don't want the courts getting into --
03-9877 +++$+++ 11906 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I guess you're right. I think I was thinking of free exercise cases rather than establishment cases.
03-9877 +++$+++ 11907 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I think that's right, and I think there is not that centrality requirement for accommodations. I do want to make the point, though, that -- that Ohio already, under its State constitution, has this heightened review with a lot of these, you know, least restrictive alternative tests and the like. Nobody thinks Ohio's constitution violates the Federal Constitution. That's true even though Ohio applies it in the prison context, at least when it's a claim by a guard rather than an inmate. That -- those are the facts of Humphrey against Lane. It's also true that many of Ohio's arguments would suggest their own accommodations of some religions would give too much of an incentive for religious exercise and the like. And I think that's a defect as well. I don't think -- and I agree with Justice Souter in this regard -- that narrower accommodations actually raise more constitutional problems than broader accommodations. I think that this Court, for example, in Caldor dealt with an accommodation that was at a fairly high level of generality, but yet this Court said and Justice O'Connor emphasized in her concurrence, well, that's a preference for Sabbatarian religions. And I think you avoid that with this kind of across-the-board test. Justice Kennedy, you made a point about whether this is extreme in the degree that it accommodates religion, but it's certainly no more extreme than the -- than the laws and constitutions of 26 States, which across the board apply this heightened scrutiny to all manner of State actions. So in that sense, the fact that it accommodates religion kind of wholesale with a broader standard, as opposed to retail, I don't think is a constitutional defect. The last point I wanted to make is on the racist literature hypothetical, and I think it is in large measure just a hypothetical. As footnote 2 in our brief points out, prisons have been generally successful in keeping racist literature out even when it's supported as a claim for religious-based racist literature. The only cases that I've come across where that hasn't prevailed is when the -- the prison's own policy had exceptions in it that made very little sense. And in this case, for example, if you look at joint appendix page 118, there's an allegation that with -- with one piece of literature that was described as racist, that some prisoners were allowed to have it while others were not allowed to have that same kind of literature. Now, I don't know whether those claims are in fact true, but that's the kind of claim that should be able to go forward in a case like this. With all respect, I think the Sixth Circuit here made a mistake, ignored this Court's precedents, and should be reversed.
03-9877 +++$+++ 11908 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Clement. The case is submitted.
04-1034 +++$+++ 11912 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first this morning in Rapanos v. United States and Carabell v. the United States Army Corps of Engineers. Mr. Hopper.
04-1034 +++$+++ 11914 +++$+++ FALSE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, may it please the Court: This is a case of agency overreaching. In this case, the Corps and EPA pushed the very limits of congressional authority, contrary to the plain text of the act and without any clear indication Congress intended that result. They claim 404(a) jurisdiction over the entire tributary system, from the smallest trickle to the largest watershed, swapping in -- sweeping in remote, non-navigable wetlands 20 miles from the traditional navigable water. This limitless claim of jurisdiction shifts the Federal/State balance and raises significant constitutional questions. We believe this boundless interpretation is inconsistent with this Court's reading of the act in Solid Waste Agency.
04-1034 +++$+++ 11915 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It goes somewhat beyond the smallest trickle? Doesn't it? Doesn't it also include ditches that currently don't have any trickle if they obtain a trickle during a rainstorm?
04-1034 +++$+++ 11916 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. They actually argued that it -- it makes no difference whether there -- what the substantiality is or the directness of the connection is. It's irrelevant to the jurisdictional determination. And as I said, they -- the -- the agencies assert jurisdiction over even the entire watershed. For example, the Mississippi watershed, the largest in the Nation, covers 1 million square acre -- 1 million square miles and reaches from the Rockies to the Appalachians and drains 41 percent of the 48 lower States.
04-1034 +++$+++ 11917 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So where would you -- where would -- where would you put the line?
04-1034 +++$+++ 11918 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd put the line where Congress put the line, Your Honor. Congress declared in 404(a) that it would prohibit the discharge of fill and dredged material into the navigable waters. So the -- these agencies can permit or prohibit any discharge, no matter where it occurs, so long as it reaches a navigable water. That would be the --
04-1034 +++$+++ 11919 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But then -- but you were -- you are including at least wetlands that abut --
04-1034 +++$+++ 11920 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1034 +++$+++ 11921 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- navigable water.
04-1034 +++$+++ 11922 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Traditional navigable waters plus abutting wetlands inseparably bound up.
04-1034 +++$+++ 11923 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about major tributaries?
04-1034 +++$+++ 11924 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Congress cannot regulate all tributaries. It could regulate some tributaries --
04-1034 +++$+++ 11925 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which ones?
04-1034 +++$+++ 11926 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but would have to do so on a case-by-case basis. The regulation of all tributaries raises significant constitutional questions and contrary to the regulation of -- of wetlands that are inseparably bound up. And there's no clear indication that Congress intended to regulate any tributaries, let alone the entire tributary system.
04-1034 +++$+++ 11927 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, is your position no tributaries or some tributaries?
04-1034 +++$+++ 11928 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the act, by its terms, does not recognize the -- the regulation of any tributary. It does --
04-1034 +++$+++ 11929 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does it make sense to say that any wetlands that it abuts a traditionally navigable water is covered, but a tributary that leads right into a traditionally navigable water is not necessarily covered?
04-1034 +++$+++ 11930 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think -- I think it's fair to say that under this Court's determination in Solid Waste Agency that the only wetlands that are covered are those that are abutting and inseparably bound up. It makes sense to do so because by regulating those types of wetlands, the Government is essentially declaring them the equivalent of the navigable waterway.
04-1034 +++$+++ 11931 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but they're doing it for a functional reason. The functional reason is that if you put the poison in the adjacent wetland, it's going to get into the navigable water. Exactly the same argument can be made as you go further and further up the tributaries, and it seems to me that once you concede, as I think you have to, that there can be a regulation that goes beyond literally navigable water at the point at which the -- the pollutant is added, then you have to follow the same logic right up through the watershed to -- to any point at which a pollutant, once added, will eventually get into the navigable water.
04-1034 +++$+++ 11932 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The reason that logic does not apply, Your Honor, is because the regulation of -- of tributaries raises significant constitutional questions that are not implicated by the regulation of a wetland inseparably --
04-1034 +++$+++ 11933 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then -- then you have to accept the fact that -- that Congress cannot effectively regulate the navigable -- the -- the condition of the navigable water itself because if all the -- the -- let's -- let's assume there's a class of -- of evil polluters out there who just want to wreck the -- the navigable waters of the United States. All they have to do is get far enough upstream and they can dump anything they want to. It will eventually get into the navigable water, and Congress can't do anything about it on your theory.
04-1034 +++$+++ 11934 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's incorrect, Your Honor. We acknowledge that under the -- the act, the Government can regulate any discharge that actually reaches the navigable water.
04-1034 +++$+++ 11935 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you're -- you're going to -- you -- you then want to draw a distinction between the dredge and fill addition and, let's say, a -- a conventional synthetic poison.
04-1034 +++$+++ 11936 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Either -- in either case, if -- if the -- if the discharge of dredged material actually enters into a navigable water, regardless of where it's discharged, it would be covered. Same for a conventional toxin.
04-1034 +++$+++ 11937 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You mean on -- on -- in every -- in every case then, I mean, Congress would have to -- I'm sorry -- a scientist would have to analyze the molecules and -- and trace them up, and so long as they could -- could trace it to a specific discharge, they could get at it, but otherwise they couldn't? I mean, that -- you know, you know what I'm getting at. That obviously would -- would totally thwart the regulation.
04-1034 +++$+++ 11938 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't -- I don't believe it would, Your Honor. The -- the -- certainly Congress did not think so in section --
04-1034 +++$+++ 11939 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Couldn't you simply assume that anything that is discharged into a tributary ultimately goes where the tributary goes? Wouldn't it be enough to prove the discharge?
04-1034 +++$+++ 11940 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it certainly wasn't true in this case, Your Honor. The --
04-1034 +++$+++ 11941 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you don't think it would be enough for the -- for the Government to prove the discharge into a tributary in order to prove that the act has been violated.
04-1034 +++$+++ 11942 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, I do not.
04-1034 +++$+++ 11943 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You really think it has to trace the molecules.
04-1034 +++$+++ 11944 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. That's -- that's what the terms of the act require.
04-1034 +++$+++ 11945 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How do you -- how do you define a tributary?
04-1034 +++$+++ 11946 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- that's one of the problems here, Your Honor, is that -- is that the agency has -- has established a moving target for -- for tributaries.
04-1034 +++$+++ 11947 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So what's your definition?
04-1034 +++$+++ 11948 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- the definitions we're working with here, to which we object, is that -- is that it includes anything in the hydrological connection.
04-1034 +++$+++ 11949 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know what you object to, and I know that you think your client isn't covered. But I don't know what test you would have us adopt for what constitutes a tributary.
04-1034 +++$+++ 11950 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we're suggesting that -- that this Court need not define tributary because under the act all tributaries are excluded. The only -- the only prohibited act --
04-1034 +++$+++ 11951 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, but we still don't know what you're excluding. I mean, the Missouri is a tributary of the Mississippi, but I assume it's still covered.
04-1034 +++$+++ 11952 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Those -- anything that is not of a -- anything does not constitute the channel, the traditional navigable water, and anything not abutting as a -- as a inseparably bound up wetland would constitute a tributary.
04-1034 +++$+++ 11953 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it -- it seems to me that what works in your favor is -- is it SWANCC? I don't -- I'm not quite sure how to pronounce the case.
04-1034 +++$+++ 11954 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1034 +++$+++ 11955 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The Migratory Bird Rule case where we said there had to be a significant nexus. But I think what the Court is asking you is -- is how to define significant nexus. We're -- if you want us just to say, well, this case is too much, but then the Corps of Engineers should use its expertise to come up with a new regulation, that's rather an odd opinion for us to write.
04-1034 +++$+++ 11956 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this Court did not --
04-1034 +++$+++ 11957 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it seems to me that that's what you're asking us to do here.
04-1034 +++$+++ 11958 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court did not suggest in -- in SWANCC that a significant nexus constitutes the jurisdictional standard for all -- for all waters. That standard only applies to wetlands that are adjacent to traditional navigable waters. The jurisdictional standard is determined by the terms of the act. In -- in SWANCC, this Court determined that the act was clear and should be read as written to avoid the constitutional questions raised by a broad interpretation of the act. As written --
04-1034 +++$+++ 11959 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ From everything -- from everything you said, it sounds like you're -- you're taking issue with Riverside Bayview because if a wetland adjacent to the river counts, then why not a stream that goes right into it? What sense does that distinction make?
04-1034 +++$+++ 11960 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It makes perfect sense, Your Honor, because the regulation of those tributaries and streams, all of them in the entire tributary system, raise significant constitutional questions that are not implicated by regulating wetlands that are inseparably bound up with traditional navigable water.
04-1034 +++$+++ 11961 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ More than that, Mr. Hopper. I thought and I had expected you to -- to respond to Justice Souter's question this way, his question about how come putting poison in -- in the wetlands is bad, but it's okay to put it in the tributary. But they -- as I understand it, the reason we held wetlands were included within the waters of the United States was not -- not that, that you could poison the waters by poisoning the wetlands, but rather, it was that it's very hard to tell where the navigable water ends and the wetland begins. And -- and we said, you know, we're not going to parse that. If it's -- if it's adjacent to a navigable water and it's wet, we're going to say it's part of a navigable water.
04-1034 +++$+++ 11962 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
04-1034 +++$+++ 11963 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought that was our basis.
04-1034 +++$+++ 11964 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right.
04-1034 +++$+++ 11965 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And, of course, that basis doesn't apply to tributaries, does it? You -- you can always tell where the tributary ends. It ends at the point where it goes into the main river.
04-1034 +++$+++ 11966 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's correct, Your Honor.
04-1034 +++$+++ 11967 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You think that's correct about what the Court said in Bayview when it phrased the question as before discharging fill material into wetlands adjacent to navigable bodies of water and their tributaries. That's what the Court thought it was deciding in Riverside Bayview.
04-1034 +++$+++ 11968 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Court did frame the question that way, Your Honor. However, the Court's commentary about tributaries was not germane to its -- to its holding. Tributaries was not a question before the Court.
04-1034 +++$+++ 11969 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ At any rate, they could not have been making the distinction Justice Scalia suggested if, at least in the Court's thinking, the tributaries rolled right into the navigable body.
04-1034 +++$+++ 11970 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, as I said, the -- the Court's commentary in Riverside Bayview is not good law because the -- the Court was not addressing the -- a tributary's question in that case, and it was not faced with a Commerce Clause challenge as it is in this case. And at that time, the agency did not interpret tributaries to include every hydrological reach of the -- of the tributary system.
04-1034 +++$+++ 11971 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but doesn't the reference to tributary make it relatively plain that what the Court was getting at was the impossibility of drawing a functional distinction between wetlands and tributaries on the one hand, navigable waters on the other, when the purpose of the regulation is to protect the purity of the ultimate navigable water? And isn't the inclusion of the reference to tributaries an indication that it said if we want to attain the objective, which is clearly constitutional, then we have got to recognize these means, i.e., regulation of -- of pollution in wetlands and tributaries, in order to reach that objective? Isn't that the reasoning that is apparent from what Justice Ginsburg just -- just read to you?
04-1034 +++$+++ 11972 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe so, Your Honor. The -- the problem that -- that the agencies have in this case, which was underscored in Solid Waste Agency, is that the Government cannot show any clear indication that Congress intended to regulate the entire tributary system. In Solid Waste Agency, this Court did recognize that because of congressional acquiescence, Congress intended to regulate wetlands adjacent to navigable waters, but as to other waters, this Court could come to no conclusion because the Congress had never defined other waters.
04-1034 +++$+++ 11973 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it's -- except for the -- it seems to me except for -- for your -- your argument is -- is fine except for one problem. And that is, if we -- if we assume that Congress was being as -- as cautious as you suggest, then Congress' caution, in effect, was -- was allowing an end run around the regulation for the reasons we went into a moment ago. All you've got to do is -- is dump the pollutant further -- far enough upstream in the watershed and you get away scot-free. And it's very difficult to believe that Congress could have intended that.
04-1034 +++$+++ 11974 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think it's difficult to believe that at all, Your Honor. We simply look at -- at the goals and objectives that Congress itself adopted in furtherance of this mission to protect the waters. If we look at 1251(a), Congress declares that its purpose is to protect the integrity of the Nation's waters. It used that term, Nation's waters. And then in -- in 1251(a)(1), it says it will accomplish this by eliminating the discharge of pollutants into the navigable waters, showing that it knows how to distinguish between all waters and navigable waters. And then in 1251(b), Congress says we will respect and defer to the States' primary responsibility to address local water pollution and to manage local land and water use. So the way that Congress intended to address this issue was to defer to the States to regulate pollutants upstream while Congress -- or while the Federal Government regulates downstream. That's a perfectly rational approach to this national problem.
04-1034 +++$+++ 11975 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if -- but your -- but your answer earlier to Justice Souter's earlier question was that if you dump the pollutants anywhere and they make their way to the navigable water, you're covered. Right?
04-1034 +++$+++ 11976 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Are covered if they make it -- their way all the way there. If they don't, then the States have that responsibility. And every State in the Nation has antipollution regulation. If there are no further questions, I'd like to reserve my time.
04-1034 +++$+++ 11977 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. Mr. Stoepker.
04-1034 +++$+++ 11979 +++$+++ FALSE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, may it please the Court: After years of review by the State of Michigan and the Respondent, the record is very clear. Petitioners' wetland is hydrologically isolated from any navigable water of the United States. Further, the State of Michigan, exercising the power specifically and traditionally reserved to it, undertook responsibility to regulate the waters at issue and pollution and, in doing so, issued Petitioner a wetland permit. It is clear from the record in this case that there is no hydrological connection between the Petitioners' wetland and navigable waters of the United States. Referring to the appendix filed, the joint appendix filed in this case, specifically beginning with the EPA letters dating back to 1994, as this property has been under years of review, do not reference any such connection.
04-1034 +++$+++ 11980 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did we talk about a hydrological connection in Riverside Bayview?
04-1034 +++$+++ 11981 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the connection there was -- in essence, yes, Your Honor, based upon the inseparable, bound-up nature of those wetlands which were immediately adjacent to the navigable water. There was nothing that separated those wetlands from that specific body of water. They were immediately adjacent and intersected with that body of water.
04-1034 +++$+++ 11982 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm not sure what you mean by a hydrological connection. Do you mean a constant -- a constant body of water between the two, or do you mean simply a -- a drain that at some times might carry off rainwater from -- from this land? And -- would that -- would that suffice to be a hydrological connection?
04-1034 +++$+++ 11983 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In -- in this case, Your Honor, there was no connection at all. In this case, there was no connection identified. It was speculated that there might be a potential --
04-1034 +++$+++ 11984 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Water never ran off of this -- of this land.
04-1034 +++$+++ 11985 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. If you look -- that is correct. If you look at the circuit court opinion, it -- and even the district court opinion and the findings made, there is no finding that any water has ever left the Petitioners' wetland into the ditch.
04-1034 +++$+++ 11986 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, do they have to make this on a plot-by-plot basis, or can they make a categorical judgment that even in cases in which, you know, there's a berm, as there is here, when the water is high, it spills over? And if the categorical judgment is sound, do you have an exception because they haven't proven it with respect to your particular lot?
04-1034 +++$+++ 11987 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes, Your Honor. In -- in this case --
04-1034 +++$+++ 11988 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where do you get that exception?
04-1034 +++$+++ 11989 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the Respondents' brief on page 18, they acknowledge that the traditional test has been hydrological connection, that that's what they have looked towards.
04-1034 +++$+++ 11990 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the -- and the -- but I mean, what I'm getting at is the traditional test is the basis for a categorical judgment. Your land falls within the general category. Your argument is I should not be subject to it, to the statute, because of the general category. I should be subject to it only if they prove specifically that the water spills over in rainy periods in my particular lot. In other words, you're saying there's got to be a specific connection as opposed to a categorical judgment. And my question is what under the act supports that view.
04-1034 +++$+++ 11991 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under the act, it talks about the issue of discharge. That is the -- that is the matter that is being regulated by the statute, an actual discharge into the navigable body of water. If you have an hydrologically isolated body of water, you cannot physically have a discharge into the navigable stream. It is an impossibility. And therefore, the act does not allow the speculation that the Court is referring to here.
04-1034 +++$+++ 11992 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So -- so your -- maybe what you're saying is we have shown or the record shows that this doesn't fit within the category because it never spills over or whatever. Is that your argument?
04-1034 +++$+++ 11993 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. The record in this case does not identify a connection between this wetland and this non-navigable ditch.
04-1034 +++$+++ 11994 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Am I correct --
04-1034 +++$+++ 11995 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Stoepker, your friend, Mr. Hopper, would certainly not agree with you that -- that a -- a hydrological connection is the, quote, traditional test. What -- what is your definition of tradition?
04-1034 +++$+++ 11996 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our definition --
04-1034 +++$+++ 11997 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How long has this test been established?
04-1034 +++$+++ 11998 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If you look at Respondents' brief in their arguments to this Court, they first state, page 18, that in fact traditionally they've looked at hydrological connection. Second, they --
04-1034 +++$+++ 11999 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Traditionally.
04-1034 +++$+++ 12000 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Traditionally.
04-1034 +++$+++ 12001 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes --
04-1034 +++$+++ 12002 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ From the inception of the rules.
04-1034 +++$+++ 12003 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ From the inception of the rules.
04-1034 +++$+++ 12004 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Inception of the rules, that they have looked at hydrological connection.
04-1034 +++$+++ 12005 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That that alone has been enough.
04-1034 +++$+++ 12006 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. They state that that is the -- the beginning point. The beginning point. They then state that they have historically undertook a interrelationship analysis of the wetland to the tributary or body of water and that they then defer that to the permit review.
04-1034 +++$+++ 12007 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I see. So you're -- you're not conceding that -- that hydrologic -- hydrological connection is adequate. You're just -- is sufficient. You're just saying it's necessary.
04-1034 +++$+++ 12008 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We're -- that is correct, Your Honor.
04-1034 +++$+++ 12009 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
04-1034 +++$+++ 12010 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can I get back to the question earlier? What is a hydrological connection? Is it enough if the water seeps through the ground and underground is connected with the navigable water, or does there have to be a ditch or -- or a culvert that you can see the water flowing through?
04-1034 +++$+++ 12011 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. The --
04-1034 +++$+++ 12012 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes?
04-1034 +++$+++ 12013 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, in -- in response to that question, both potentially. In this case, again, there was no surface water connection, and due to the nature of the clay soils, it was found that there was no groundwater connection --
04-1034 +++$+++ 12014 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was it -- was it also clear that after the improvement, there would be no drainage?
04-1034 +++$+++ 12015 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ After the improvement, there could be drainage. Ironically the Respondent in this case actually recommends that the barriers between this site and the ditch be removed.
04-1034 +++$+++ 12016 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I just ask one clarifying question? Was it found that there was no connection, or was it not found that there was a connection?
04-1034 +++$+++ 12017 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was found that there was not a connection.
04-1034 +++$+++ 12018 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It was. I didn't read it that way.
04-1034 +++$+++ 12019 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If you -- referring the Court to the Respondents' report dated May 5th of 2000, it specifically states --
04-1034 +++$+++ 12020 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where are you reading from?
04-1034 +++$+++ 12021 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This is from appendix page 81 and 83. This is a report that starts with the term jurisdictional at the top.
04-1034 +++$+++ 12022 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right.
04-1034 +++$+++ 12023 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It notes a number of issues or classifications there or points. First, that the wetland is not adjacent to navigable water. It then notes the wetland is not adjacent to headwater. And then it makes a comment. It says, to a tributary to navigable water, and it says, no. The sole basis for jurisdiction in that report is the Migratory Bird Rule. The Respondent took out to the property who they believed to be the most credible expert they had on migratory birds and then state that the --
04-1034 +++$+++ 12024 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm sorry. I want to be sure I follow you. You say that somewhere on page 82 there is a finding that there was no hydrological connection?
04-1034 +++$+++ 12025 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They do not reference a -- I'm -- this --
04-1034 +++$+++ 12026 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They don't find a --
04-1034 +++$+++ 12027 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. They do -- they do not.
04-1034 +++$+++ 12028 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I agree with that. I'm asking you if they found there was no hydrological connection.
04-1034 +++$+++ 12029 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, they make that in a subsequent report.
04-1034 +++$+++ 12030 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But not on page 82.
04-1034 +++$+++ 12031 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not -- not in this first report.
04-1034 +++$+++ 12032 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is the report in the -- is the subsequent report in the record somewhere?
04-1034 +++$+++ 12033 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The next report is issued September 11th of 2000. In that report --
04-1034 +++$+++ 12034 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And again, where --
04-1034 +++$+++ 12035 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What page are you on?
04-1034 +++$+++ 12036 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where are you?
04-1034 +++$+++ 12037 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm going to refer you to the specific pages. They first referenced clay soils on page 93. These are the same clay soils that the State administrative law judge, after much hearing on the record, found were impermeable to prevent groundwater and surface water discharge. Then at page 97 of the appendix, the Respondent finds that due to site conditions -- I will quote -- this wetland has been obstructed from receiving runoff from surrounding area and from circulation by flooding into the drain. End of quote. Then referring to page 99 of the same appendix, I quote. The parcel is not currently a part of the S-O Drain watershed, being the Sutherland-Oemig watershed. Then referring to page 100 where they comment on navigation, they state, no impact on navigation. And then finally at page 106 of the appendix, the features on this site -- and again I quote -- presently isolate the wetland from the S-O Drain and receiving waters. So it receives none and it gives none. They used the term in their report isolated. There is no finding anywhere to the contrary in any reports issued, or thereafter at the public hearing that was conducted by the Respondent, that there is any connection. In fact, the Sixth Circuit noted there was no connection.
04-1034 +++$+++ 12038 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then what was the reason they gave for rejecting the permit?
04-1034 +++$+++ 12039 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the sole reason claimed for jurisdiction at the agency hearing was adjacency to this non-navigable, unnamed ditch, which was dug by the county for a sewer system. That's the sole reason. The same argument appeared at the district court level, adjacency to the unnamed, unnavigable ditch.
04-1034 +++$+++ 12040 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm --
04-1034 +++$+++ 12041 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose --
04-1034 +++$+++ 12042 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I'm still not clear as to what the findings were, if there were findings, as to what the condition would be after the improvement. Would there be an increased likelihood of drainage into the ditch after the improvement?
04-1034 +++$+++ 12043 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- it -- it could occur in two different ways.
04-1034 +++$+++ 12044 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and if that were so, would that be sufficient for jurisdiction?
04-1034 +++$+++ 12045 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They -- that -- that was not their finding because in this case they actually recommended, whether or not anything occurred on the property, that the berms or barriers be removed. They actually recommend there be an interaction between the wetland and the ditch. That's the irony of this.
04-1034 +++$+++ 12046 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, well -- suppose the interaction were automatic. Would that suffice to make this a wetlands after the improvement?
04-1034 +++$+++ 12047 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it is our position in this case no because the ditch next to the site has not been regulated under the rules adopted by the Respondent and -- nor under the statute adopted by Congress. The ditch is -- has been historically designated as a point source or a source point, as has been the drain under the statute. In 1975, after the district court ruled that the Respondent's rules were too narrow from a jurisdictional standpoint, the Respondent then expanded its rules in 1975. In the preamble to those rules, it specifically stated that ditches -- ditches of this nature, drainage ditches, were specifically exempted as waters of the United States. That is in the preamble. We then go to 19 --
04-1034 +++$+++ 12048 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Counsel, what -- what is the test that you would have us adopt for a significant nexus?
04-1034 +++$+++ 12049 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our -- our test for significant nexus would start with the -- the basis that there must be an established, existing hydrological connection between the wetland and the body of water adjacent --
04-1034 +++$+++ 12050 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ By that, you mean either a ditch or underground seepage?
04-1034 +++$+++ 12051 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1034 +++$+++ 12052 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. So there has -- there has to be any -- and any hydrological connection works.
04-1034 +++$+++ 12053 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Based --
04-1034 +++$+++ 12054 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Hopper won't like that, but for --
04-1034 +++$+++ 12055 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. (Laughter.)
04-1034 +++$+++ 12056 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Using this Court's definition in -- in SWANCC, it's -- it is our position that it needs to be a substantial nexus or interrelationship. We're saying --
04-1034 +++$+++ 12057 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You don't -- you don't have to define what -- everything that's necessary. All you have to define is one indispensable element. And all you're arguing is that a hydrological connection is an indispensable element, whatever additional elements --
04-1034 +++$+++ 12058 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
04-1034 +++$+++ 12059 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- there may be. So you may agree with your friend, Mr. Hopper.
04-1034 +++$+++ 12060 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We're --
04-1034 +++$+++ 12061 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You -- you just haven't reached that point. Right?
04-1034 +++$+++ 12062 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't -- we do not believe that this case needs to reach that --
04-1034 +++$+++ 12063 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I'm still puzzled --
04-1034 +++$+++ 12064 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't want to set you two to fighting with each other.
04-1034 +++$+++ 12065 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- by your answer to Justice -- (Laughter.)
04-1034 +++$+++ 12066 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- Justice Kennedy. What if there's no hydrological connection today, but there would be after you -- after you built your project?
04-1034 +++$+++ 12067 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At that point, then maybe the Respondent could determine there would be some form of regulation if, in fact, the discharge was into a ditch that was, in fact, regulated. And --
04-1034 +++$+++ 12068 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it -- would it be a sufficient reason to deny a permit based on the judgment that after the project is completed, there will be a -- a hydrological connection?
04-1034 +++$+++ 12069 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The test is from the outset, Your Honor.
04-1034 +++$+++ 12070 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. It seems to me you could answer that yes or no.
04-1034 +++$+++ 12071 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. No.
04-1034 +++$+++ 12072 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Perhaps you don't want to but -- (Laughter.)
04-1034 +++$+++ 12073 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the resulting impact -- I would say no. The resulting impact has not been determined for jurisdiction.
04-1034 +++$+++ 12074 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But isn't it sort of foolish to say that we're concerned about pollution, but only if you -- only if you catch it in advance? That doesn't make sense because if the problem would arise when you did what you're seeking a permit to do, why shouldn't you be denied the permit?
04-1034 +++$+++ 12075 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The application for the permit does not automatically equate to a request to discharge. The fill of a wetland does not automatically discharge into the ditch.
04-1034 +++$+++ 12076 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but my hypothesis is that we know it would happen, or they -- they would find it would happen after the project is completed. And it seems to me that -- that that's what you should focus on rather than what's -- you know, rather than what happens before.
04-1034 +++$+++ 12077 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court's test in SWANCC is based upon the before, and also based upon Riverside, it examined the before condition and the impact on that navigable water. And what is to be prevented is the discharge into that navigable water. And that is the initial test that is conducted. If the Court examines the Respondent's actual test data, what they examined here was the jurisdictional determination from the beginning. Is there a connection? Is it isolated? Is it not isolated? They didn't look at the after-effect. They looked at the after-effect in relationship to issuing or not issuing the permit.
04-1034 +++$+++ 12078 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What we're talking about here is -- is at -- at most, whether this is a water of the United States. The condition for requiring permits is that it -- it be a water of the United States. Isn't that right?
04-1034 +++$+++ 12079 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
04-1034 +++$+++ 12080 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it either is or it isn't, not -- not that it will be. It either is or it isn't. If it is, you -- you need a permit; if it isn't, you don't need a permit.
04-1034 +++$+++ 12081 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
04-1034 +++$+++ 12082 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And Justice Stevens' question I think in -- in that framework is -- is this. If it will result in discharge after the project, is it a water of the United States now?
04-1034 +++$+++ 12083 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under the Court's definition in SWANCC and Riverside, the answer again is no.
04-1034 +++$+++ 12084 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then -- then Congress has passed a statute that says we'll lock the barn after the horse is stolen. I mean, that -- maybe that's what it did, but that's -- that would be a very odd thing for it to do, wouldn't it?
04-1034 +++$+++ 12085 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It did not do so, Your Honor, because specifically under section 1251(b), it reserved to the States the primary responsibility of regulating pollution within its waters. The primary responsibility. That primary responsibility is not designated to the Respondent in this case. A shift would -- in -- in that framework would shift the primary responsibility to the Respondent and take that primary responsibility away from the State.
04-1034 +++$+++ 12086 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it -- it would do so in -- in cases of -- I guess, of the -- the sorts of -- of new proposed actions that require the -- the Corps to get into it in the first place. But I also assume that it would leave lots of -- of water pollution regulation to the States. I don't see that it would displace the States.
04-1034 +++$+++ 12087 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this case, it actually -- the decision of the Respondent did displace the State. The State, after years of examination and determination of impact, made a decision to issue a wetland permit to this project and, in doing so, found specifically that the issuance of the permit would be better, effective method of dealing with pollution than not issuing the permit. That was the specific finding made by the administrative law judge in that appendix, and those findings are the first part of the appendix in this case, detailed findings after a 2-week administrative trial where witnesses were cross- examined and examined. In this case, the Respondent has ignored those State powers given to its traditional waters and has said, we're going to ignore, number one, your claim of jurisdiction, and number two, we're going to ignore your finding of no impact and completely disregard that. So, in fact, the framework in this case did shift. The State did what it was supposed to do under 1251(b) and the -- the Respondent in this case usurped that responsibility and those traditional powers granted to it traditionally and both by this statute, and then determined that what the State of Michigan did had no relevance. It was unwarranted. So the framework in this case did specifically change. And in doing so, we get back to those same factual findings they've made. We are here only today because they found that it is adjacent to a ditch which they have said is not a waters of the United States. So in this case, the --
04-1034 +++$+++ 12088 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the only reason it's a water of the United States is that there are some puddles on this land. Right? And if there were no puddles, it -- it wouldn't be a water of the United States. It would just be land of the United States.
04-1034 +++$+++ 12089 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, because there's some puddles on the land occasionally.
04-1034 +++$+++ 12090 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it -- it becomes waters of the United States because there are puddles on it, and you assert because those puddles have some hydrological connection or if it is -- if it is water of the United States, those puddles have some hydrological connections with the navigable waters.
04-1034 +++$+++ 12091 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To -- to be waters of the United States, they would have to have a hydrological connection as a minimum test to be a part of the waters of the United States.
04-1034 +++$+++ 12092 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and the -- the statute only prohibits the discharge of dredged or fill material, which is what is going on here, into the navigable waters, right, at specified disposal sites. I'm sorry. The -- the permits that -- that are required here --
04-1034 +++$+++ 12093 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
04-1034 +++$+++ 12094 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- permit discharge into waters, not -- not into lands that aren't waters.
04-1034 +++$+++ 12095 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The -- that is correct. The permit permits the discharge into a navigable water of the United States. That is the object of the permit. Again, the rules that the Respondent has adopted since 1975 have specifically excluded the Nundane ditch, as well as the drain next to that ditch, as being defined as waters of the United States. So therefore, even if they could show a connection, which is a question that has been raised, would in fact the wetland be regulated, by the -- by the Respondents' own definitions and by the statutory definition which excludes a ditch and a drain under section 1262(12) and (14), neither the ditch or the Sutherland-Oemig drain by definition is a water of the United States. It is a point source and therefore not a water. So even if they could --
04-1034 +++$+++ 12096 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask one question about your -- your not -- no hydrological connection? If this berm were next to a wetland that would otherwise be adjacent to a river, the situation that was presented in Riverside Bayview, is it the berm that prevents there being a hydrological connection?
04-1034 +++$+++ 12097 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this case, there are two things. The first, the berm segregates the surface water connection between the two, and then second, the nature of the soils being clay, which are not permeable soils, create the additional segregation between that and the body of water.
04-1034 +++$+++ 12098 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So it could -- there could be a situation where the wetlands would be right next to the river, but there's a berm in between, and that would break the hydrological connection?
04-1034 +++$+++ 12099 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would break the hydrological connection. However, this Court has ruled in the Riverside case that those wetlands which are adjacent to navigable waters -- it did not reach the issue whether they were not adjacent to non-navigable waters. They only addressed the -- this Court only addressed the issue of relationship to navigable waters. In that case, this Court specifically found that wetlands adjacent to navigable waters were regulated. The Court specifically reserved the --
04-1034 +++$+++ 12100 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you think it -- do you think it mean adjacent with a berm in between? I -- I thought the reason they -- they reached that conclusion was you can't tell where the navigable water ends and where the wetland begins. I -- I thought they assumed a connection between the two.
04-1034 +++$+++ 12101 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In reading the opinion -- Your Honor, my time is up.
04-1034 +++$+++ 12102 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You may respond briefly.
04-1034 +++$+++ 12103 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. In reading the opinion, it -- it appears that this Court found, because it actually went to the water's edge, there was an inseparable, bound-up attachment between the wetland and the navigable water.
04-1034 +++$+++ 12104 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel.
04-1034 +++$+++ 12105 +++$+++ TRUE +++$+++ MR. STOEPKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-1034 +++$+++ 12106 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ General Clement.
04-1034 +++$+++ 12108 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: In United States against Riverside Bayview Homes, this Court unanimously upheld the Corps' jurisdiction over wetlands that were not themselves navigable, but were adjacent to waters otherwise within the Corps' jurisdiction. The principal difference between the Rapanos wetlands and the wetlands at issue in Riverside Bayview are that the Rapanos wetlands are adjacent to a non-navigable tributary, while the wetlands at issue in Riverside Bayview were adjacent to a navigable creek.
04-1034 +++$+++ 12109 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How do you define tributary?
04-1034 +++$+++ 12110 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief --
04-1034 +++$+++ 12111 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The tributary -- you say they're adjacent to a nonnavigable tributary. That's a -- a culvert, a ditch. Right?
04-1034 +++$+++ 12112 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, not in all these cases, Mr. Chief Justice.
04-1034 +++$+++ 12113 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in Rapanos' case.
04-1034 +++$+++ 12114 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, not -- not -- that's actually not true. There are three specific wetlands that are at issue in the Rapanos case. One of those, the Pine River site, as its name suggests, is adjacent to the Pine River, which is a body of water that has water flowing through it all year-round. It's a river. I don't think anybody would look at that and say that's not a tributary of the downstream navigable rivers. And I think that's why, in fairness --
04-1034 +++$+++ 12115 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about -- what about the other -- the other sites?
04-1034 +++$+++ 12116 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the other sites are -- are adjacent to man-made ditches that also drain in. If I just -- can I just say, though, I think the fact that the Pine River site is so obviously a tributary under -- under any definition is one of the reasons, along with the theory that you heard advanced by Petitioners, that this case --
04-1034 +++$+++ 12117 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But your argument assumes that the ditches that go to the other two sites are also tributaries.
04-1034 +++$+++ 12118 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Mr. Chief Justice. I just want to make the point that this case, because of the theory Petitioners have advanced, has not really unearthed or focused on the definition of a tributary, but let me get to it because the Corps has defined the definition of a tributary. And the definition of a tributary is basically any channelized body of water that takes water in a flow down to the traditional navigable water --
04-1034 +++$+++ 12119 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even when it's not a body of water.
04-1034 +++$+++ 12120 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Even --
04-1034 +++$+++ 12121 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ A storm drain, even -- even when it's not filled with water, is a tributary. Right?
04-1034 +++$+++ 12122 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, absolutely.
04-1034 +++$+++ 12123 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-1034 +++$+++ 12124 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Corps has not drawn a distinction between man-made channels or ditches and natural channels or ditches. And, of course, it would be very absurd for the Corps to do that since the Erie Canal is a ditch.
04-1034 +++$+++ 12125 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I suggest it's very absurd to call that waters of the United States. It's a drainage ditch dug -- you know, dug by the municipality or -- you know, or a gutter in a street. To call that waters of the United States seems to me extravagant.
04-1034 +++$+++ 12126 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, let me say two things, Justice Scalia. First of all, this case has not been litigated under the theory that the key difference is whether it's man-made or natural, and that defines somehow the scope of a tributary. And I think there's a good reason for that, which is the second point, which is as the Corps experts -- from the experts of the Corps will tell you, the process of making the natural rivers navigable has all been about the process of channelizing them and creating man-made, artificial channels in them to the point where the difference between that which is a man-made channel and that which is a natural channel is both difficult to discern and utterly beside the point for purposes of this regulatory scheme.
04-1034 +++$+++ 12127 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what percentage of the -- of the territory of the United States do you believe is -- is subjected to permits from the Corps of Engineers on your theory whenever you want to move dirt, whenever you want to deposit sand? What -- what percentage of the total land mass of the United States, if you define tributary as broadly as you define it to include? Every storm drain? I mean, it's the whole country, isn't it?
04-1034 +++$+++ 12128 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1034 +++$+++ 12129 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All the water goes down to the sea and there's some kind of a drain or -- or a bed that takes the water down there.
04-1034 +++$+++ 12130 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the precise answer to your question being none of the land mass -- none of the land itself would be regulated. But in terms of -- you want to talk about the --
04-1034 +++$+++ 12131 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're calling empty ditches -- not unless you call empty ditches land, which I do.
04-1034 +++$+++ 12132 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- the Corps doesn't. They treat those as water bodies.
04-1034 +++$+++ 12133 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I understand that.
04-1034 +++$+++ 12134 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that's not the gravamen of the complaint here. But just to be responsive to your question, I think it's important to understand that the Corps and the EPA's view of wetlands would cover about 80 percent of the wetlands in the country. And that shows that the impact of this Court's decision in SWANCC was real and substantial because about 20 percent of the Nation's wetlands are isolated.
04-1034 +++$+++ 12135 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but you -- that's just because this statute happens to refer to wetlands. But under your theory, the Corps of Engineers would have jurisdiction over any land that is part of that tributary system as well. If any of that land has a deposit of -- of some materials that could leach into or -- or drain into the -- the tributary system, which is to say any gutter, in theory, the -- the Federal Government can regulate it all. No?
04-1034 +++$+++ 12136 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that's right, Justice Scalia. The Corps has regulated this channelized tributary system. It has done it without regard to whether those channels are seasonally dry in some areas, and I think that's a rational judgment. It's not been the gravamen of this case, though. And what's important is while the Corps and the Federal Government regulate that channelized system of tributaries, non-point source pollution is still something that's in the primary providence of the States. And so it's not true that the Corps is asserting an authority to regulate land as such. But to also get it on the table, if the Federal Government wanted to -- if Congress changed its mind and said that, say, the banks of the navigable rivers or their tributaries are within the scope of this program, as it did in 1899 in section 13 of the Rivers and Harbors Act, we'd be here defending that as a valid exercise of Congress' authority not just under the Commerce Clause, but under the navigation power of the --
04-1034 +++$+++ 12137 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in 1899, it just said navigable rivers, not -- not every -- every tributary defined to include even storm drains.
04-1034 +++$+++ 12138 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. With respect, Justice Scalia, in 1899 in section 13 of the Rivers and Harbors Act, the so-called Refuse Act, Congress regulated the navigable waters and their tributaries. Now, in fairness, the focus there was this idea that they only regulated the tributaries if they could show that it flowed into the navigable waters themselves, but they asserted right in the text of the statute in 1899 the authority to regulate the tributaries and the banks. And that shows what I think is a very important difference between this case and SWANCC.
04-1034 +++$+++ 12139 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But your -- your theory is there is regulatory authority because there's an interaction between the wetlands or the lands in question and the navigable waters.
04-1034 +++$+++ 12140 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, that's not precisely accurate. The way it would describe it is this. As to the first question you have to ask, which is are the tributaries covered, we think an important component of describing the reach of the tributary system is whether there's a hydrological connection. On the second -- and that's subsection (5) of the regulatory definition that brings within the scope of waters of the United States tributaries. Then you get to the second question which actually implicates another subsection of the definition, subsection (7), which is the adjacent wetlands. And as to the adjacent wetlands, as the Carabell case illustrates, the definition does not turn on hydrological connection for purposes of asserting the Corps' jurisdiction.
04-1034 +++$+++ 12141 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but -- but wasn't -- wasn't the reason for including the adjacent wetlands because of -- of the likelihood of an interaction?
04-1034 +++$+++ 12142 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think they -- they were included for the likelihood of an interaction both hydrologically and otherwise. I would say two important things, though.
04-1034 +++$+++ 12143 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let -- well, please finish.
04-1034 +++$+++ 12144 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The two points I would make is, first of all, I think the Corps' regulations, which for 30 years have ignored the premise -- the -- the presence of a berm, are rational because in the vast, vast majority of cases, that berm is not going to prevent a hydrological connection, so to speak. And so a test that focuses, first and foremost, on physical proximity is a very rational jurisdictional test. The second thing I would say, though, is it's simply not true that even in the rare case where a berm or a dike prevents all hydrological connection, that an adjacent wetland will not perform an important function for the adjacent water body. And the most obvious one is the flood control possibility of the wetland.
04-1034 +++$+++ 12145 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well -- well, as you mention that, you cited subsection (7), and there's a -- what struck me anyway as a very interesting provision in there. It covers wetlands adjacent to waters other than waters that are themselves wetlands. Now, everything that you've said today and in your brief would lead me to think you would contend that wetlands that are adjacent to wetlands ought to be covered as well, and yet, the regulation leaves them out. And I want to know why do you think the regulation leaves those wetlands out.
04-1034 +++$+++ 12146 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think, Mr. Chief Justice, my own view is the reason that that caveat is in subsection (7) is actually a vestige of the pre-SWANCC scope of the regulation. And specifically, if you look at subsection (3) of the definition which is the isolated waters provision that was at issue, I think, through the Migratory Bird Rule in SWANCC, that includes wetlands in the available isolated waters. And I think --
04-1034 +++$+++ 12147 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ To me it -- it suggests that even the Corps recognized that at some point you've got to say stop because logically any drop of water anywhere is going to have some sort of connection through drainage. And they're -- they're stopping there, and I wonder if we ought to take that same instinct that -- that you see in subsection (7) and apply it to your definition of tributary and say, at some point, the definition of tributary has to have an end. Otherwise, you're going to go and reach too far, beyond what Congress reasonably intended.
04-1034 +++$+++ 12148 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, several thoughts on that, Mr. Chief Justice. I think the problem with that approach is that the reason why it makes sense to regulate that very first tributary that flows into the Mississippi is the reason that it makes sense to regulate the entire tributary system. All of that water is going to flow down into the navigable waters, and if there's going to be --
04-1034 +++$+++ 12149 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's true of the wetland that is adjacent to the wetland that is adjacent to the tributary, and yet, the Corps says we're not going to reach the wetland that is adjacent to another wetland.
04-1034 +++$+++ 12150 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, with respect, Mr. Chief Justice, the way that I would read that and the way I understand the Corps reads that is that was really just trying to exclude a wetland adjacent to a wetland that was a water of the United States only because of the application of subsection (3).
04-1034 +++$+++ 12151 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your assumption --
04-1034 +++$+++ 12152 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I think that's -- that's supported by the --
04-1034 +++$+++ 12153 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- but this -- this is preliminary to my question. In SWANCC, we said there has to be a significant nexus. It seems to me that you have to show that there's some significant relation between the wetlands you're regulating or seeking to regulate and the navigable water.
04-1034 +++$+++ 12154 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree with that, Justice Kennedy.
04-1034 +++$+++ 12155 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I -- and that's just, it seemed to me, so far been missing from the discussion.
04-1034 +++$+++ 12156 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, and I -- I guess there is two ways to look at this. You can start with the significant nexus test and see if it's met. I guess the way that the Corps would naturally proceed is to start with their definitions, and they would say section -- subsection (5) covers tributaries. And you can ask the question, is there a significant nexus between the tributaries and the navigable waters in which they flow into? And I think the answer to that is yes. And then there's the secondary question, as to subsection (7) of the regulatory definition. Is there a significant nexus between wetlands that are adjacent to waters otherwise within the Corps' jurisdiction, be they the traditional navigable waters or their tributaries? And I think Riverside Bayview answered that question and said, yes, there is a significant nexus between adjacent wetlands and any otherwise regulable water body to which they are adjacent. So that's the way we would ultimately satisfy what this Court required, which is a significant nexus. I wouldn't have understood this Court's decision to transplant the significant nexus test and say, that's what the Corps should administer, because whatever ambiguity there is in waters of the United States, I think significant nexus is precisely the kind of test you'd want the Corps --
04-1034 +++$+++ 12157 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what about the Chief Justice's question, wetlands next to wetlands?
04-1034 +++$+++ 12158 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I think that -- as I said, I think what -- what the definition meant to get at was to exclude wetlands adjacent to isolated wetlands under subsection (3). I think if you ask the question more broadly, what about wetlands next to wetlands, I guess it depends on what you mean by that because the one thing we know from Riverside Bayview is that it's not a requirement that the parcel and its wetlands be immediately adjacent.
04-1034 +++$+++ 12159 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but we didn't come up with the idea of wetlands next to wetlands. The Corps of Engineers has it in their regulations.
04-1034 +++$+++ 12160 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
04-1034 +++$+++ 12161 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So what do they mean by it?
04-1034 +++$+++ 12162 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They meant wetlands adjacent to waters that would otherwise not be in the statute which are isolated wetlands under subsection (3). It's the only application it has in -- in the regulatory structure, as they understand it.
04-1034 +++$+++ 12163 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what is an example of an insignificant nexus under the SWANCC test?
04-1034 +++$+++ 12164 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under insignificant nexus? Well, I think it's the waters at issue in SWANCC, and I think it's --
04-1034 +++$+++ 12165 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. There's no nexus there.
04-1034 +++$+++ 12166 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, no --
04-1034 +++$+++ 12167 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They're isolated. There's no nexus. The -- the notion in SWANCC of a significant nexus suggests that there are some bodies of water or puddles that are going to have a nexus, but it's not going to be significant enough. We didn't just say any nexus. It said significant nexus. So what are you leaving out to give meaning to the test that we articulated in SWANCC?
04-1034 +++$+++ 12168 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm leaving out everything that this Court excluded in SWANCC, and I wouldn't have thought that the -- that the Court necessarily suggested there was going to be some subset that had a further insignificant nexus because it wasn't -- the argument of the Government in those cases was obviously -- we didn't just concede that those bodies of water were utterly isolated. We said they did have important ecological connections with the water. And I think the way I read SWANCC is that we can't make that --
04-1034 +++$+++ 12169 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So if you have a wetland, you would say a wetland with a hydrological connection to a tributary of navigable waters through one drop a year is a significant nexus to the waters of the United States?
04-1034 +++$+++ 12170 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What I would say, Mr. Chief Justice, is that if the tributary flows in. I would start with the tributary, and I'd say, now, there's clearly a significant nexus between the tributary and the navigable waters to which it flows. I would then look at the wetland, and I would say for purposes of the regulation of adjacent wetlands --
04-1034 +++$+++ 12171 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ One drop.
04-1034 +++$+++ 12172 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For purposes of the adjacent wetlands, it doesn't look to hydrological connection per se. The way I would resolve that is I would resolve it with reference to footnote 9 in this Court's opinion in Riverside Bayview, and I would say, all right, one drop? Fair enough. It's in the regulatory jurisdiction because it's adjacent and that's what the Corps looks to. And I think that's a rational judgment. But if there's one drop, grant the permit. That solves the --
04-1034 +++$+++ 12173 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Adjacent to what? Adjacent to a tributary. Right?
04-1034 +++$+++ 12174 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Adjacent to a tributary, absolutely.
04-1034 +++$+++ 12175 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but here's -- here's the fly in the ointment. You -- you interpret tributary to include storm drains and ditches that only carry off rainwater. I mean, it makes an immense difference to the scope of jurisdiction of the Corps of Engineers. I mean, when you talk about adjacent to a tributary, I think, you know, maybe adjacent to the Missouri River or something like that. No. You're talking about adjacent to a storm drain.
04-1034 +++$+++ 12176 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Scalia, I think if you had in mind a tributary, you'd probably have in mind the Pine River which is at issue in one of these sites. And I think that's why that's not the way Petitioners have presented this case.
04-1034 +++$+++ 12177 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Only because I don't know how a storm drain is a water of the United States. That's all. I mean, all of these terms that you're throwing around somehow have to come within a reasonable usage of the term, waters of the United States, and I do not see how a storm drain under anybody's concept is a water of the United States.
04-1034 +++$+++ 12178 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect, Justice Scalia, some things that you might classify as a storm drain are actually very deep channels that have a continuous flow of water that were --
04-1034 +++$+++ 12179 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. I was referring to a real storm drain. (Laughter.)
04-1034 +++$+++ 12180 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well -- (Laughter.)
04-1034 +++$+++ 12181 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay?
04-1034 +++$+++ 12182 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But therein is the problem, which is some things that are part of the storm water drainage system of a city are actually things that were previous navigable natural waters. I mean, so --
04-1034 +++$+++ 12183 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And some aren't. But -- but you would sweep them all into the jurisdiction of the Corps of Engineers.
04-1034 +++$+++ 12184 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We would, Justice Scalia, but I guess if we can start with the proposition that tributaries are covered and then some things that the Corps thinks are tributaries you disagree with, that would be fine. But that would be a different case. That hasn't been the theory that this case has been presented. As I understand, these drains here are actually, you know, substantial channels that do have water in them. I have no doubt that the Pine River meets the test that it sounds like you would have for a tributary, and the difficulty I'm having is I'd be happy to defend what the Corps did if this Court, in the -- in the litigation of this case, had focused the court's and the Corps' attention on that issue.
04-1034 +++$+++ 12185 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Am I right that a tributary is not a defined term in the regulations? Right?
04-1034 +++$+++ 12186 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. It's an undefined term. The Corps has interpreted it in the 2000 preamble. The best place to find the Corps' teaching on this is 65 Fed.Reg. 12,823-4. And they go through -- it was part of a comment and they deal with comments about their treatment of ditches and the like and many of these issues. And I guess what I would say is I think that for purposes of this case, I mean, you heard the Petitioners' argument. They have obviously, based on the legal position they've advanced, not focused this Court or any other court's attention on subdividing which tributaries count because their view is nothing counts. Even the first tributary doesn't count. And I think in this case what I would urge you to do, if -- if you have some concern with, you know, the extent of the definition of tributaries, is to not make that a basis for invalidating this -- the judgment of the Sixth Circuit here. And that's an issue that could be developed in other cases if -- if the parties want to really focus the attention on that. I think I would be comfortable defending the Corps' judgment, even in those more finely focused challenges, because I get back to the point, which is that the same logic that has you regulate that first tributary also suggests that you want to regulate anything that's a channel that brings large quantities of water into the navigable waterways.
04-1034 +++$+++ 12187 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but that -- but that doesn't follow. I mean, it is not a principle of law that so long as the object is -- is lawful and within the power of the United States, all means to which even that object are lawful. That is simply not true. There are various means of stopping that pollution, and it may well be that one of the means, which intrudes too deeply into the State's power to regulate land within their jurisdiction, is not a permissible one. That -- that's not an extraordinary proposition.
04-1034 +++$+++ 12188 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I absolutely agree with you, Justice Scalia, and that's why I'm not up here asking for Federal regulation over non-point source pollution, although that obviously contributes to the -- to the problem. What I'm up here asking for is a recognition that the tributary system is something that Congress can validly regulate and did regulate in its broader definition of waters of the United States in the Clean Water Act. And I think that's something -- the authority to regulate tributaries is something Congress regulated starting in 1899 and, importantly, this Court expressly upheld in 1941 in Oklahoma against Atkinson.
04-1034 +++$+++ 12189 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't see how non-point source pollution is -- is any more remote from what the Federal Government should be able to do to achieve its ends than is a point source pollution that -- that consists of -- of dumping sand on land that has some puddles on it. I -- that seems to me just as remote.
04-1034 +++$+++ 12190 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think one important thing to focus on, Justice Scalia, is this case is not just about the Corps' 404 program because the 404 program by its terms does not permit anything. As -- as the permit word suggests, it's a -- it's a process of granting permission. The relevant provision here is section 301 of the statute which prohibits a discharge into the navigable waters without a permit. And so whatever this Court decides for purposes of the 404 jurisdiction, it's necessarily deciding for purposes of the 402 jurisdiction of the EPA. And so what you'd be suggesting is that if some tributaries aren't covered, then it's perfectly okay to dump toxins in those tributaries even though you know that because they are a channelized system that directly connects with the navigable water --
04-1034 +++$+++ 12191 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's not really fair. The Petitioners, as I understand it, both concede the discharges that make their way into the navigable waters would be covered.
04-1034 +++$+++ 12192 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Mr. Chief Justice, but there's only two ways to do that. One way of doing that and the one that I hear them advocating would be this impossible sort of process of trying to fingerprint or DNA test oil spills in a tributary to figure out, yes, that's the guy that got it to the navigable waters. And the one thing we know is that there were some efforts to try to regulate pollution that way before 1972 and they were a dismal failure. The only other way to do it, as suggested by one or two amici, is to treat the last -- treat the tributary as if it were a point source. But I'd sure hate to be the guy who owns the -- the land next to that tributary that's dumping into the Mississippi who's going to be responsible for the pollution of everybody upstream. And what Congress recognized in 1972 is that they had to regulate beyond traditional navigable waters.
04-1034 +++$+++ 12193 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the Congress in 1972 also, in its statement of policy, said it's a statement of policy to reserve to the States the power and the responsibility to plan land use and water resources. And under your definition, I -- I just see that we're giving no scope at all to that clear statement of a congressional policy.
04-1034 +++$+++ 12194 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect, Justice Kennedy, the States still have plenary control over the non-point source pollution. They still have an important cooperative role in -- in the overall program, as you'll hear more about in the second case today. And I would actually ask you to focus on one particular provision that deals with the relationship between the Federal Government and the States under 404 in particular, and that's section 404, subsection (g) of the statute. And that was added to the statute in 1977. Unless Congress is going to be construed to have given the States a virtual empty set, that provision makes crystal clear that the waters of the United States, for purposes of the Clean Water Act, extend beyond traditional navigable waters and their adjacent wetlands.
04-1034 +++$+++ 12195 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Though not necessarily as far as storm drains. It would be enough to -- to say navigable -- you know, non-navigable tributaries that are real -- real tributaries.
04-1034 +++$+++ 12196 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Justice Scalia. I concede that. But then you get to the question of defining real tributaries, and that's neither been teed up in this litigation, nor is it something that I think, at the end of the day, you'd want to differ from the Corps' judgment, which although you find it striking that some things that are ditches are actually included in the system, that is a product of the way that the tributary systems have worked, the way that certain cities have taken over a natural stream and channelized it and make it look like a ditch, but it's part of the system that carries water down from the headwaters. And again, maybe that's an issue that we can try to divine the limits to in a subsequent case. But I think what's important, as -- as your very comments suggest, is that trying to give meaning to that textual indication that Congress had clearly wanted to capture something beyond traditional navigable waterways and their adjacent wetlands.
04-1034 +++$+++ 12197 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's a very vague indication. I mean, I -- I agree with you that your argument based on 404(g) is a strong one, but it -- it perhaps is weakened if you believe that in order to stretch to the -- to the limit of Federal jurisdiction, you need a clear statement. I certainly wouldn't consider 404(g) -- if -- if the act did not previously include the kind of authority you're arguing for, I would not -- I would not consider 404(g) a clear statement of that -- of that new -- new authority.
04-1034 +++$+++ 12198 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think even you would concede it's a clear statement that something else must be covered. Otherwise, other than is completely meaningless in the statute. And so -- and -- and I -- I grant you that it might not be a clear statement as to the nth tributary, and maybe that's a case on which we can litigate in the future. But I think what I would say is, for those of your colleagues that want to look at the legislative history, it provides some additional context for 404(g) and makes it very clear that Congress, as this Court found in both Riverside Bayview and in SWANCC, was specifically focused on the coverage of adjacent wetlands. And it's very clear that they understood that whatever scope of jurisdiction was given to the Corps, that it would bring along with it the adjacent wetlands. And so there was this long debate. As I say, the legislative history I think makes quite clear that they were meant to include the non-navigable tributaries and a substantial amount of the non-navigable tributaries. And so, I mean, I would invite others to look at that. I also think that, to get back to a point I made earlier, one thing that's exceedingly clear from that legislative history is nobody in 1977, including those that were advocating restricting the scope of the 404(g) program, wanted to restrict the EPA's jurisdiction under 402. And so in the legislation that they proposed that eventually found form in 404(g), they expressly decoupled the 404 permitting process and its jurisdiction from the 402 process. Petitioners' argument, by contrast, necessarily restricts the scope of both of those programs because they are joined in the hip through 301. And so if they're right that they can dredge and fill in these wetlands, then it is equally true that they can dump toxic materials into those wetlands. If I --
04-1034 +++$+++ 12199 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Could you just say a word about the -- the ditch -- sorry -- the word about the wetland next to a tributary that's separated by a man-made object like a ditch? Are there many such instances? It sounds to me like a scientific question. Are there many such instances where there is no transfer of water? And in those instances, is the presence of water in the wetland anything more than a coincidence?
04-1034 +++$+++ 12200 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1034 +++$+++ 12201 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Insofar as it seeks to serve a purpose of the statute to regulate this.
04-1034 +++$+++ 12202 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What I would say, Justice Breyer -- I -- I think I can answer the whole question -- is in the vast majority of cases, as I understand it, a berm will not have the effect of actually preventing all hydrological connection.
04-1034 +++$+++ 12203 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And where do I look to verify that scientific matter?
04-1034 +++$+++ 12204 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think a number of the amicus briefs have addressed that. I wish I could point to you a specific one.
04-1034 +++$+++ 12205 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. I can't find any quantitative assessment.
04-1034 +++$+++ 12206 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, again, I didn't mean to suggest a percentage. I just think that -- that -- let me put it to you this way, and this is the argument we obviously make in the brief. The best reason to think that a man-made -- that a man-made berm or a natural berm is unlikely to prevent all hydrological flow is even those man-made structures that have as their express design to prevent water flow, like dikes and levees and dams, have seepage and leakage from them. So --
04-1034 +++$+++ 12207 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Fine. Now suppose we take a set, which you think exists as not the null set, of instances where there is no such transfer, which your opponents say is this case. Now what's the justification for regulating those? If it's simply flood control because water flows over the top and sits there, I guess you could say the same thing is true of any low depression, and therefore, the presence of water would be just a coincidence. Now, what's your -- the fact that they're wet doesn't have anything to do with it. It's the fact that they're next to a place that floods that has to do with it. Now, what's wrong with what I just said?
04-1034 +++$+++ 12208 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What's wrong with what you just said is that wetlands have unique characteristics that are different just from low-lying areas. And I think this Court started to recognize that in the Riverside Bayview case. And the image I would leave you with is the image that wetlands actually act something like a sponge, and because of that characteristic, they play two important roles in helping to regulate the flow of the adjacent water body.
04-1034 +++$+++ 12209 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay, I understand that. Now, what specifically, since I think this is scientific, do I look at to verify what you just said, namely that a wet depression, even if there's no interchange, has a lot to do with flood control that a dry depression wouldn't have? That's a scientific statement. Where do I verify it?
04-1034 +++$+++ 12210 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And, again, I mean, I would direct you to the amicus briefs that discuss in length the benefits of wetlands, but I understand you won't find those --
04-1034 +++$+++ 12211 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I read them, and I -- I just perhaps wasn't reading them closely enough, but I just can't find the verification directly there.
04-1034 +++$+++ 12212 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and I sense that you found them lacking in that sense. I guess what I would say is there's certainly anecdotal evidence in those amicus briefs that I think is quite striking.
04-1034 +++$+++ 12213 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, what am I supposed to do with the case? I read them quickly. I don't necessarily pick up everything. I'll read them again. But if I don't find empirical verification for that statement, what am I supposed to do with this case?
04-1034 +++$+++ 12214 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, not surprisingly, I would suggest that you defer to the agency in its exercise of expertise.
04-1034 +++$+++ 12215 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Fine. And where did the agency, in its many, many proceedings over the course of 35 years, say what you just said, namely that a wetland acts as a sponge? It's very plausible to me. It's just that there may be a need to drop a citation somewhere. (Laughter.)
04-1034 +++$+++ 12216 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you -- and you could cite to the proceedings in this very case in the joint appendix because although they didn't use the sponge word, there was a specific finding in this case that these wetlands played an important role in flood control and pollution control for the adjacent streams.
04-1034 +++$+++ 12217 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if you wanted a cite for the opposite proposition, you could cite subsection (7) of the Corps' regulations where they have no interest in wetlands that happen to be adjacent to other wetlands that are adjacent to the waters of the United States. If they act in the way that you've been postulating, presumably they'd want to cover those adjacent wetlands just as much as they want to cover the wetlands that are next to the tributary, but they don't.
04-1034 +++$+++ 12218 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect, I don't think that follows because if you read subsection (7), as I do, as only excluding those wetlands that are adjacent to other isolated wetlands, then regulating those wetlands --
04-1034 +++$+++ 12219 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It doesn't -- it doesn't say that. It says other than waters that are themselves wetlands. It excludes all wetlands that are adjacent to wetlands that are adjacent to waters of the United States.
04-1034 +++$+++ 12220 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, and as I said, I think you have to read that in the context not just of the rest of the regulations but of this Court's decision in Riverside Bayview. The one thing we know from Riverside Bayview is that it's not enough to simply say that your parcel of wetlands is not adjacent to the navigable waterway because in that case, as the Court remarked, it -- the parcel ended before it got to the adjacent navigable body of water and there was another wetland. There was a continuation of the same wetland. Now, I don't know whether you'd call that two adjacent wetlands. I might as a common locution. There might be some different way of referring to that. But we know that the one wetland was covered because that was the holding of this Court in Riverside Bayview. So I don't think I would give undue weight to that reading of it especially when, if you read it as I do, it makes perfect sense because a wetland adjacent to an otherwise isolated wetland is not going to have the same role to play in flood control in terms of monitoring the stream volume as a wetland adjacent to an otherwise regulable water body as you have at issue here. And so I think that that regulatory decision that the Corps has made is one that's perfectly defensible and makes sense. And I think that -- again, I think one other point that I want to note that's kind of specific to this case is part of the reason why it makes sense to regulate a wetland adjacent to an otherwise regulable water body, even if there is a berm present, is illustrated by this case because, as was alluded to, the specific development plan at issue here -- and this is clear at joint appendix pages 95 and 160 -- would sever the berm and create the hydrological link between a smaller, deeper wetland and the adjacent navigable wetland -- waterway system. And so, I mean, it doesn't make a lot of sense, as Justice Stevens suggested, to have a regulatory regime where you have a regulable wetland after but not before a construction project that has the effect of vastly reducing the size of the wetland.
04-1034 +++$+++ 12221 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you say that the authority of -- I don't -- I don't even think the Corps has ever suggested this. The authority of the Corps extends not only to all that you've -- we've been talking about and that you've asserted, but also to lands that, if altered, could have some hydrological connection.
04-1034 +++$+++ 12222 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, that's not it, Justice Scalia. What I'm saying is what the Corps has always done for 30 years is said they are going to regulate a physically proximate, adjacent wetland without regard to whether or not there's a berm there. I'm just making the subsidiary point that that makes sense because the very construction project that might be at issue might have the effect of changing the degree of the hydrological connection. I want to be very clear, though. The hydrological connection has never been the sine qua non of the assertion of regulation authority over the adjacent wetlands.
04-1034 +++$+++ 12223 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is -- what is the basis for their doing it? If there is currently no hydrological connection, there is a berm, there is no -- there is no connection to the navigable waters of the United -- what could possibly be the basis for their asserting jurisdiction?
04-1034 +++$+++ 12224 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The short answer is flood control. If there is that berm that -- that allows the sponge to soak up water, either rainwater or waters from adjacent parcels, although I think in this case, it would largely be rainwater, that -- the fact that there's a berm actually helps in the flood control. When you sever it, it changes the dynamic quite a bit because then it's somewhat less helpful for flood control --
04-1034 +++$+++ 12225 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, I --
04-1034 +++$+++ 12226 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but actually is earlier in term -- plays a better role --
04-1034 +++$+++ 12227 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ A statute could do that. A statute could do that. But this statute requires that it be a water of the United States.
04-1034 +++$+++ 12228 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely.
04-1034 +++$+++ 12229 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and when -- when there is nothing but puddles that are isolated by a berm, even from the storm drain which goes to tributaries, I can't conceive of -- of how you could consider that that's -- you know, at least where it leaks sometimes into the storm drain and went down to a tributary, I think it's an exaggeration, but maybe you could call it a water of the United States. But where there's a berm that prevents any water from going even into the storm drain which then goes into a tributary, how can you possibly consider that a water of the United States?
04-1034 +++$+++ 12230 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the way I would do it is you start with the tributary. And if you'll concede for purposes of the illustration or the argument that that's a water of the United States, then what the Corps does as a jurisdictional regulation is treat the adjacent wetland as a water of the United States as well. That makes sense for two principal reasons. One, in the overwhelming majority of cases, there is going to be a hydrological connection. Actually tracing out exactly what it is and how it works is very difficult and not the kind of thing you'd want to get into at the jurisdictional stage, and that's why the Court said that was fine in footnote 9 of Riverside Bayview.
04-1034 +++$+++ 12231 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's not the argument I was addressing. I'm addressing the argument that in changing the land, you may cause it to --
04-1034 +++$+++ 12232 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that's not an independent basis for jurisdiction. It's simply an illustration of why disregarding the berm makes sense.
04-1034 +++$+++ 12233 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm happy to hear that. That's all I was trying to establish. You -- you don't assert that that's an independent basis.
04-1034 +++$+++ 12234 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is not an independent basis. It is part of the reason why, though, in the context of wetlands in particular, a focus on physical proximity and adjacency makes sense and a fixation on hydrological connection does not make sense. Part of the reason you can look at the record here and find differing information about the extent of the hydrological connection is that is not a term that is relevant for the regulatory scheme. And the same thing was equally true in Riverside Bayview itself. In fact, in Riverside Bayview, the district court made a finding that the wetland there was hydrologically isolated from the adjacent streams. Now, as the Solicitor General pointed out in the petition at footnote 7 in Riverside Bayview, we think the best understanding of what was meant there was that there was no overtopping and that there was some drainage. But that just illustrates the point that hydrological connection is not a statutory term. It's not a regulatory term. It's a very loose term and it's not a term the Corps has ever used in regulating adjacent wetlands. It's important to stress that the regulation for adjacent wetlands that is at issue here, subsection (7), is exactly the same regulation that was at issue in Riverside Bayview. As Justice Ginsburg pointed out, the Court, when it framed the question presented, framed it in terms of whether or not the Corps could rationally regulate wetlands that were adjacent to navigable waters and their tributaries. And when they got to the holding, this Court approved the regulation and approved the fact that it asserted jurisdiction over wetlands adjacent to otherwise regulable waters. So if the tributaries are otherwise regulable because they are waters of the United States, it follows directly from Riverside Bayview that the adjacent wetlands are covered as well.
04-1034 +++$+++ 12235 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You -- you put a lot of weight on the tributary question in your approach by giving up the hydrological connection. Your response is you don't need a hydrological connection because it's right next to a tributary. But for those of us who are having a little trouble with the concept of tributary, you don't leave us much to fall back on.
04-1034 +++$+++ 12236 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, and -- and I'm -- I wish that weren't the case, Mr. Chief Justice. What I would say, though, is that this case has just not framed up the question of tributaries, and that's because -- I mean, to put it more favorably to my client, the other side has never taken issue with the fact that their wetlands are adjacent to tributaries. And I think that's -- that's obvious for a couple of reasons. I mean, first of all, if you look at the property in Carabell, it's just a mile from Lake St. Clair. It's right next to a substantial drainage ditch which connects to a navigable water, Auvase Creek, and then into Lake St. Clair. In fact, it's kind of ironic, but the property in Riverside Bayview was also a mile away from Lake St. Clair. So it's very similar. If you look at the three sites at issue in Rapanos, one is right next to the Pine River. One of the others -- the whole point of the dredge and fill operation was to drain the wetland through the adjacent tributary systems so the water would go away. And in the third one, there also isn't an issue about whether or not those are tributaries. In a different case, that might be an appropriate focus for inquiry. The last thing, I would say a couple of points before I sit down. I do think, first, that section 404(g) of the statute is very important because it is the clearest textual indication that Congress intended to regulate something beyond traditional navigable waterways and their adjacent wetlands. And as this Court itself remarked in SWANCC, the single most likely candidate are the non-navigable tributaries. The second point to emphasize is that the scope of the Corps' 404 jurisdiction is the same as the EPA's 402 jurisdiction. They are joined at the hip through the basic prohibition under section 301. So a conclusion that somehow certain tributaries are excised from the tributary system for purposes of 404 is likewise excising those tributaries and creating a situation where you can have a -- a free dump zone at some point above the -- above what somebody might put as the limits of the navigable waterway system or the tributary system. And I think that is something that even the proponents of narrowing the Corps' jurisdiction in 1977 could not countenance. The last point I would make is that there are going to be real-world consequences to contracting the jurisdiction of the Corps and the EPA to pre-1972 or, really, pre-1899 levels, especially for the downstream States. I think it's a bit much to ask a legislator in Wisconsin or in Minnesota to stop local development in order to protect the water quality and flood control propensities of the Mississippi River in Mississippi. That's why it was manifest in 1972 that there was a need for a Federal solution to this problem. That Federal solution includes as two of its most important components first getting at water pollution at its source, at the point source, and secondly, covering the tributary system without which the navigable waters will continue to be polluted. Thank you.
04-1034 +++$+++ 12237 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, General. Mr. Hopper, you have 4 minutes remaining.
04-1034 +++$+++ 12239 +++$+++ FALSE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice.
04-1034 +++$+++ 12240 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Hopper, I hope you're going to tell us what you make of section 404(g).
04-1034 +++$+++ 12241 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd be happy to. In -- in Solid Waste Agency, this Court looked at 404(g) and determined that it had -- it was not enlightening as to the meaning of navigable waters under 404(a) because Congress did not define other waters in any way. And this Court likewise concluded that 404(g) was simply not before it and would not draw any conclusion from it. So I submit that it is really irrelevant. I note -- I want to draw this Court's attention to our footnote 1 in our reply where we point out that -- that in every formal rulemaking, the Corps and the EPA have excluded drainage ditches from the definition of tributary. It is here and now that these agencies are redefining the term tributary to include anything in the hydrological chain. The Sixth Circuit decision says that any hydrological connection suffices as a significant nexus to bring in wetlands under Federal jurisdiction. Of course, in -- in page 31 of the opposition, the Government argues that neither the directness -- excuse me -- nor the substantiality of a tributary's connection to traditional navigable waters is relevant to the jurisdictional inquiry. It's simply not true that the Government is only identifying channelized conduits as tributaries. Anywhere water flows is a tributary in their book. Let me also address something that this Court did in SWANCC. It was not the lack of a hydrological connection in that case that informed this Court's decision to exclude those isolated ponds from Federal jurisdiction. It was the fact that those -- that the regulation of those isolated ponds did not meet the terms of the act and there was no clear indication Congress intended to regulate isolated ponds. I submit that's this case. In this case, there is no clear indication that Congress intended to regulate wetlands 20 miles from the nearest navigable water. The --
04-1034 +++$+++ 12242 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We're told that one of them was much closer.
04-1034 +++$+++ 12243 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the record is silent as to the distance between --
04-1034 +++$+++ 12244 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about the Pine River? Are you -- that's not 20 miles away, is it?
04-1034 +++$+++ 12245 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't know how far that is because the record is silent as to the distance between those water bodies.
04-1034 +++$+++ 12246 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you know? The -- the Solicitor General represented to us that it was very close. Are you disputing that as a matter of fact?
04-1034 +++$+++ 12247 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know what he means by very close. The -- the Solicitor General would agree with me that -- that there's nothing in the record to indicate what those distances are. And it's irrelevant in -- in our opinion whether it's -- whether it's a mile or 20 miles or 50 miles or 100 miles, and that's the point. There does -- under the -- under the Federal regulations a true, significant nexus is not required, just any hydrological connection. This is a presumption on congressional authority. This expansive interpretation destroys any distinction between what is national and what is local under -- as -- as has already been pointed out. Under the Federal regulations, you can't dig a ditch in this country without Federal approval. You can't fill it in. You can't clean it out without Federal approval. This reads the term navigable right out of the statute. We -- we ask this Court not to allow these agencies --
04-1034 +++$+++ 12248 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Of course, when we're talking about the scope of -- of Federal power, we're not merely concerned with dumping refuse in the creek, but also deliberate attempts to poison the water system.
04-1034 +++$+++ 12249 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Congress -- Congress considered all this when it made its policy decision to defer to the States to address this. The States have the ability and the will to -- to protect their own waters from pollutants of any kind. And as I indicated earlier, all the States have antipollution regulations.
04-1034 +++$+++ 12250 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. The fact that the States have the power and the interest does not necessarily mean that the Federal Government does not also have the power.
04-1034 +++$+++ 12251 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My time is --
04-1034 +++$+++ 12252 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You may respond briefly.
04-1034 +++$+++ 12253 +++$+++ TRUE +++$+++ MR. HOPPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Congress determined that it would defer to the States instead of exercising any further power beyond its channels authority.
04-1034 +++$+++ 12254 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
04-10566 +++$+++ 12258 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument first this morning in two cases, Sanchez-Llamas v. Oregon and Bustillo v. Johnson. Mr. Gartlan.
04-10566 +++$+++ 12260 +++$+++ FALSE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: This case presents three questions. The first is, does article 36 of the Vienna Convention on Consular Relations confer rights to individuals such as Mr. Sanchez-Llamas? The second is can Mr. Sanchez-Llamas enforce the right in a State criminal prosecution. And the third is can the right be enforced by suppression. The first issue is -- is a matter of treaty interpretation, and the language of the article 36 is -- is plain. It confers three rights. Article 36(1) says that the consulate and the individual can have free communication between them. Article 36(1)(b) gives to the detainee, the foreign national detainee, the right to have his consulate notified of his arrest and the right to forward communication to the consulate. And it also imposes a duty on the detaining authorities to inform the foreign national under -- of his rights under that section. And it's critical, or at least important, and telling to -- to notice that the detainee gets to control the communication. The detainee initiates and controls the communication with the consulate. It's not the consulate contacting the detainee initially. It's the detainee authorizes the contact. The secondary sources -- we -- we believe the text is plain, but if the Court resorts any secondary sources, that too will confirm the plain language of -- of the article.
04-10566 +++$+++ 12261 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I thought that the argument on the other side is that those references in the secondary sources and in the document itself are meant to make clear that if the individual detainee does not want contact with his consular officials, for example, in a case where he might be seeking asylum or something like that, that it was, as you said earlier, his decision and not necessarily that there was to be a departure from the norm in international -- the international context where treaties are between the sovereigns and don't confer enforceable rights on individuals.
04-10566 +++$+++ 12262 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, actually the article 36 is -- is unique and different in that the revolutionary part of this is that the detainee did, for the first time, have the authority to have the consulate notified. Typically most of the notification statutes, bilateral treaties, multilateral treaties require mandatory notification, but this is an instance where the detainee gets to control. The detainee decides whether or not the consulate is going to be contacted.
04-10566 +++$+++ 12263 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right. So the -- that's what the different countries, the signatories, are supposed to provide, and if they don't, that's a matter to be taken up bilaterally between the countries involved and not necessarily an individual enforceable right.
04-10566 +++$+++ 12264 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it -- it could work on the international level as well. You know, a state could complain to another state, but the question here is whether or not this article, as domestic law in the United States, confers a personal right to a foreign national detainee because a treaty in the United States, a self-executing treaty -- and everybody agrees this is that -- works in two spheres, on two levels. One level is the international level, but by -- through the Supremacy Clause, the treaty is also domestic law. And the question is whether as domestic law this treaty confers personal rights to individuals because --
04-10566 +++$+++ 12265 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And at least you have the authority of the International Court of Justice that says this is a right. This is not just a matter between the states.
04-10566 +++$+++ 12266 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. Yes, Your Honor. In two cases, the ICJ has held that this article 36 does confer rights to individuals. There's the LaGrand case --
04-10566 +++$+++ 12267 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That court is not a common law court, is it?
04-10566 +++$+++ 12268 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
04-10566 +++$+++ 12269 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And not being a common law court, it's not bound by its own prior decisions, is it?
04-10566 +++$+++ 12270 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe so, Your Honor.
04-10566 +++$+++ 12271 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I think its statute says that it -- it decides the particular case and does not set forth propositions of law that are binding in future cases. If it's not bound by its prior cases, I don't know why we should be.
04-10566 +++$+++ 12272 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How many times now has the ICJ said that this convention confers rights on the individual?
04-10566 +++$+++ 12273 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At least two, Your Honor, LaGrand and Avena, and both involved criminal cases.
04-10566 +++$+++ 12274 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And what is the view of our treaty partners on that issue?
04-10566 +++$+++ 12275 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Many of the treaty partners view it as conferring a right, at least 11 tell an arrestee of his rights under -- under the treaty and --
04-10566 +++$+++ 12276 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But do any of our treaty partners apply the exclusionary rule to violations of this?
04-10566 +++$+++ 12277 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's beginning to happen, Your Honor. In Australia and Great Britain, there -- I believe it has been --
04-10566 +++$+++ 12278 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not at the time this treaty came into force.
04-10566 +++$+++ 12279 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Excuse me, Your Honor?
04-10566 +++$+++ 12280 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not at the time the Vienna Convention came into force.
04-10566 +++$+++ 12281 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
04-10566 +++$+++ 12282 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We were almost alone in having suppression as the remedy.
04-10566 +++$+++ 12283 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, and --
04-10566 +++$+++ 12284 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We didn't even have it then, did we?
04-10566 +++$+++ 12285 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In 1969? Yes, we did, Your Honor.
04-10566 +++$+++ 12286 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that -- that's when the convention came into effect?
04-10566 +++$+++ 12287 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that -- excuse me. That's when the United States ratified the treaty, 1969.
04-10566 +++$+++ 12288 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What -- what remedies have other countries provided for -- for these rights? I mean, it's -- it's easy to say the right exists. What -- what have other countries done by way of vindicating these rights?
04-10566 +++$+++ 12289 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Typically I think the --
04-10566 +++$+++ 12290 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, advising them of them is -- is really not vindicating them, it doesn't seem to me.
04-10566 +++$+++ 12291 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Typically it is a matter of state to state complaints or apologies and --
04-10566 +++$+++ 12292 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's -- but, you know, that's what the other side said the whole thing should consist of, that it's a matter to be enforced by -- by state-to-state protests, not -- not by the judicial system or the legal system taking it upon itself to provide a remedy. What -- what remedies have been provided in -- in other countries? You -- you mentioned an exclusion in Australia?
04-10566 +++$+++ 12293 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-10566 +++$+++ 12294 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ When -- when was that?
04-10566 +++$+++ 12295 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Offhand -- I believe it's within the last couple years.
04-10566 +++$+++ 12296 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was there a showing of prejudice in that case or just automatic exclusion?
04-10566 +++$+++ 12297 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it's not automatic. Typically in the commonwealth countries, a judge has a lot of equitable authority to kind of balance some interests and decide whether or not to exclude the -- the evidence. And I'm not saying that it's happened worldwide, that it's pervasive practice, but in -- in some sense, what other countries are doing in their individual systems, it's nice to know but it's not all that controlling because the question, again, is how does this statute work as domestic law?
04-10566 +++$+++ 12298 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, is that -- that -- my question was going to be are -- are you suggesting or arguing that the remedy ought to be exclusion as a matter of domestic law or as a necessary implication of -- of the treaty?
04-10566 +++$+++ 12299 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's a necessary implication or it's an implication of the treaty, of section 2 of article 36. But --
04-10566 +++$+++ 12300 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what would you do in a country that does not apply an exclusion remedy in -- in domestic cases given the provision, which I can't quote correctly, but you'll know what it is, the -- the provision that the treaty will -- will be administered in accordance with or consistently with, I guess it is, domestic law so long as full effect is given to its substantive provisions? I would have thought that that -- that that provision for administration in accordance with domestic law would have a great bearing, if -- if not being dispositive, on the remedy, so that if I were answering the question I -- I had asked you, I -- I would have said, well, it's probably a domestic law basis for -- for exclusion, but not a treaty basis. So why in those countries -- getting back to -- to my -- why -- why in those countries that do not customarily apply an exclusion remedy wouldn't it be consistent with the treaty for them to decline to apply it given the provision for administration consistently with -- with domestic law?
04-10566 +++$+++ 12301 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It could be appropriate. The treaty was prepared -- drafted full knowing that there are various and myriad kinds of legal systems throughout the world, and it wasn't intended to say, here's the -- here's the remedy because typically under international law, the remedy is -- is a domestic remedy. And this -- this doesn't -- the treaty does not say, thou shalt suppress.
04-10566 +++$+++ 12302 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if it doesn't --
04-10566 +++$+++ 12303 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So if the treaty --
04-10566 +++$+++ 12304 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why don't you go ahead?
04-10566 +++$+++ 12305 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The -- the treaty provision then governs only in the sense that for remedy it refers you to domestic law. Is that it?
04-10566 +++$+++ 12306 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-10566 +++$+++ 12307 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
04-10566 +++$+++ 12308 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So -- so if the treaty doesn't say suppress, what authority does a Federal court have to direct a State court to exclude evidence?
04-10566 +++$+++ 12309 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Through the Supremacy Clause, Your Honor.
04-10566 +++$+++ 12310 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Supremacy Clause gives effect to the treaty. You just told me the treaty doesn't require suppression.
04-10566 +++$+++ 12311 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the treaty doesn't in -- in its text doesn't say, thou shalt suppress, but is -- it is a source of authority because the treaty says thou shalt give full effect to the law.
04-10566 +++$+++ 12312 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it's a source of authority but not a source of authority for suppression. And I find it implausible that we signed a treaty which requires us to suppress evidence of this sort, but allows the other treaty partners to do whatever they like, not -- not suppress, let it in, rely upon consular protests. Is -- is that what this provision, you know, in accordance with domestic law, means, that -- you know, each man to himself?
04-10566 +++$+++ 12313 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In -- in many cases, yes, Your Honor. Again, the -- the drafters recognized that remedies would be local, and so the question is for our system, for the United States system, how does the United States system -- how does it remedy breaches? And it depends upon the type of the breach. In this instance, the breach here involved statements, and so the breach occurred when the authorities did not inform Mr. Sanchez-Llamas of his right to contact the consulate.
04-10566 +++$+++ 12314 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, of course, that's assuming a causal link, which is an altogether different problem. But it's still not clear to me. Are you saying that we should require the States to follow and the United States Government to follow an exclusionary rule because that's what the treaty requires or because this is the remedy that we ought to devise in the exercise of our supervisory powers? And if it's the latter, it seems to me surely there must be some causal linkage between the violation and the -- and the statement at -- at a minimum.
04-10566 +++$+++ 12315 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. Well, it's kind of a combination of both. The treaty directs give effect to these rights. And we are asking the Court to exercise its authority to remedy the breach because suppression is a creature of this Court's authority, common law authority.
04-10566 +++$+++ 12316 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You don't think that the -- that the remedy that the ICJ imposed in the case where the United States was before it as a party, that that would be the appropriate remedy? It was not suppression. It was reconsider this, taking account of the failure to notify and what might have happened if notice had been provided.
04-10566 +++$+++ 12317 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, and then supply whatever remedy would be appropriate. And again, that -- that's a call upon the judiciary to remedy treaty violations, and -- and that's been --
04-10566 +++$+++ 12318 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But there wasn't any word in either of the ICJ judgments, if I recall them correctly, that said, United States, you have a suppression remedy, so you should suppress.
04-10566 +++$+++ 12319 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, because again, remedies are a question of domestic law, so it's up to the domestic courts to decide what would be the appropriate remedy.
04-10566 +++$+++ 12320 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, did you ask for any remedy in this case other than suppression? This arose on the motion to suppress, am I right?
04-10566 +++$+++ 12321 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct, Your Honor. No other remedy but -- but suppression.
04-10566 +++$+++ 12322 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ One of the things -- and I -- I really have this question for all counsel. If the Miranda warning is given, it seems to me that that comprehends the relief that you need. If the accused talks with his attorney, his attorney is presumed to know the treaty's -- the provisions of the convention. If he does not, he proceeds at his risk. Attorneys have lots of things they can tell clients, and if you don't have an attorney, you proceed at your risk. I just think this is a very important point here.
04-10566 +++$+++ 12323 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, and many courts have held that -- well, the Miranda rights pretty much encompasses these rights, but they're different. These are standalone rights, and what's critical about this, what's really important is that for every United States citizen who's arrested -- and typically interrogation is going to follow quickly on the heels of the arrest -- they're giving the Miranda warnings. And essentially they have three options. They can speak to the police. They can invoke the right to silence, or they can invoke the right to an attorney. However, foreign nationals have a fourth option and that fourth option is they can have the consulate contacted, if they want. And the consulate provides different kinds of information and support for the arrestee. And it's -- what's critical is -- what's hard to see is that because we're in this country, we don't see it, but if you're overseas and you've been arrested -- let's say you're in Damascus and you're given a dime and your options are to call the local attorney provided by your jailers or the American consulate. And I think it's pretty clear that most people are going to call the American consulate. Why? It's because there's a kind of a familiarity. There's an attraction there. There's an appeal. There's security. You're dealing with the known. Whereas, a local attorney, it's the unknown, and it's provided by the local authorities.
04-10566 +++$+++ 12324 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That may give you a warmer feeling inside, but do you think that the foreign consulate is -- is more likely to give you good advice about what you should do under American law than an American lawyer that you've been provided?
04-10566 +++$+++ 12325 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you know, Your Honor, it's not really the content of the advice. The question is at this point what would people do, and the legal error here, what's wrong, is that the foreign national is given the same three options, but by law, he's supposed to have a fourth option.
04-10566 +++$+++ 12326 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but I'm just saying whether it makes any difference. I mean, you're talking about anything that -- that affects substantive rights. He's been provided an attorney who knows American law better, presumably, than -- than a consular official. What -- other than the comfort of -- of speaking to somebody from his own country, what -- what's the substantive harm here?
04-10566 +++$+++ 12327 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but really he hasn't been given an attorney yet, Your Honor. We have to remember this is the arrest has been made and he's confronted with options.
04-10566 +++$+++ 12328 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but you -- you want us to write an opinion to say that we're holding our attorneys to the same standard of evaluation as the attorneys in Syria --
04-10566 +++$+++ 12329 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, no, Your Honor.
04-10566 +++$+++ 12330 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- and -- and our bar is -- is not to be trusted to have the expertise that's at least equivalent to that of the foreign counsel?
04-10566 +++$+++ 12331 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. What I'm saying, Your Honor, is that if you're arrested, the next -- you have a choice, and you have one of three if you are a national, but if you're a foreigner, you have one of four. And the question --
04-10566 +++$+++ 12332 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The question --
04-10566 +++$+++ 12333 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the question is who tells you about that choice, and your attorney can tell you about that choice.
04-10566 +++$+++ 12334 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But this contemplates that the detaining authorities informed the person of -- of what their rights are to contact the consulate.
04-10566 +++$+++ 12335 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose they don't do it. They don't do it. They violated the treaty.
04-10566 +++$+++ 12336 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-10566 +++$+++ 12337 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We assume that. Then the question is, what is a proper remedy?
04-10566 +++$+++ 12338 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-10566 +++$+++ 12339 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I'll assume with you, for the moment, that -- that the treaty has to be read as saying you have to have some kind of appropriate remedy, but it doesn't say what kind. So why isn't it an appropriate remedy that he was given a lawyer, if he wanted one, and the lawyer either told him about the right to talk to the consul or he didn't. And if he didn't -- if he did, he found out, and if he didn't and it mattered, maybe that was ineffective assistance of counsel. So if we have ineffective assistance of counsel claims to take care of the tough cases where it really did matter, doesn't that suffice under the treaty, or does it?
04-10566 +++$+++ 12340 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I'd -- I'd like to -- to move back the discussion to there's no attorney yet, and the question is what can that person do. And -- and the error --
04-10566 +++$+++ 12341 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, he's stuck without an attorney. I have no doubt about that. I have no doubt that the treaty was violated. I follow you that far, but now you're talking about the domestic court's power to do what there is an international obligation to do, which is to create a remedy. I'm not sure why that remedy need always be suppression.
04-10566 +++$+++ 12342 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it needn't --
04-10566 +++$+++ 12343 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think sometimes it could be something else.
04-10566 +++$+++ 12344 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. It depends on the legal injury that flows from the violation. Now, in this instance, we're dealing with statements because again, to illustrate perhaps, even a national, given these three options -- what if the police forgot to tell the -- the person that he has a right to an attorney? Now, he's given these two options, and he -- he waives those. And that waiver is voluntary, but it's still invalid as a matter of law because he wasn't given all the options he's supposed to be given. And that's the difference because we don't know what would have -- typically you don't know what would have happened if somebody were given all the options. That's -- that's a problem. So now --
04-10566 +++$+++ 12345 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But we do know, don't we, Mr. Gartlan, that if the treaty had been followed, it still would have been permissible for the police, having given Miranda warnings, to commence interrogation? The treaty does not require that the enforcing officials in this country immediately call the foreign consulate. Isn't that so?
04-10566 +++$+++ 12346 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, actually the language of the article says without delay, Your Honor, so that suggests that there's some kind of promptness that's -- that's involved.
04-10566 +++$+++ 12347 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Promptness. And I think that the United States has told us it's generally done here somewhere between 24 and 72 hours. A suspect who has been given Miranda warnings as here -- the conversation with the police, the interrogation, could begin before that 24 hours or 72 hours expires.
04-10566 +++$+++ 12348 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And our reading of the article is that once the -- the police know or have grounds to believe that the -- that the person is probably a foreign national, then that duty arises on the police to give him his rights.
04-10566 +++$+++ 12349 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-10566 +++$+++ 12350 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's fine, but --
04-10566 +++$+++ 12351 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's a --
04-10566 +++$+++ 12352 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Go ahead.
04-10566 +++$+++ 12353 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We keep doing this.
04-10566 +++$+++ 12354 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, we do.
04-10566 +++$+++ 12355 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's -- it's a duty to advise him of -- of his right to have them notify the -- the consulate. It is not a duty to remain silent until the consulate responds. And even if you are correct that the obligation to -- to advise him and to give the notice arises immediately upon the realization that he's a foreign national, I don't see anything in the treaty that requires them to defer interrogation until the -- the consulate has decided whether it wants to do anything or not.
04-10566 +++$+++ 12356 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, but in -- in this case, the -- the statements that we're seeking to suppress, the harmful ones, occurred about 8 hours after the initial arrest. However --
04-10566 +++$+++ 12357 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, do you -- do you say, going back to -- to the point Justice Ginsburg made, if the United States follows a 48- to 72-hour rule, is -- is that a violation of the treaty?
04-10566 +++$+++ 12358 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, because our position is that once somebody says, yes, I -- I want to speak with the consulate, it's like saying I want to speak with my attorney or I want to invoke my right to silence. It's a signal that this person believes that they are being overwhelmed by the situation, that they are no longer in control, and they're trying to exercise some control. Now, this Court doesn't have to make this ruling in this case, but our position would be if somebody invoked --
04-10566 +++$+++ 12359 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, we -- we might have to make it in this case.
04-10566 +++$+++ 12360 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We'd have to make an 8-hour ruling in this case anyway if -- if we agree with you.
04-10566 +++$+++ 12361 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, our -- our position is that if there's an indication of a right to have the consulate contacted, that's like a cry for help. It's like -- it's an alternative way of saying I want -- I can't deal with this anymore. I'm -- I'd like my right to silence. And --
04-10566 +++$+++ 12362 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Gee, what about -- what about countries that don't have an extensive telephone system, you know, where you -- you have to send a runner to notify the consul?
04-10566 +++$+++ 12363 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be a problem for that country and people in that country. But now we're dealing with --
04-10566 +++$+++ 12364 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it -- it just makes me think that -- that instant contact is not what was envisioned by the treaty.
04-10566 +++$+++ 12365 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The treaty is supposed to be applied in every country, and there are going to be different results. The drafters recognized some -- some countries have different systems, different waiting periods before there's interrogation or before there's contact. And all this treaty does is it puts the foreign national on par with an American, with the United States citizen. That all intends to do.
04-10566 +++$+++ 12366 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Gartlan.
04-10566 +++$+++ 12367 +++$+++ TRUE +++$+++ MR. GARTLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor.
04-10566 +++$+++ 12368 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Stancil.
04-10566 +++$+++ 12370 +++$+++ FALSE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Mario -- Mario Bustillo was not advised of his rights under article 36 in direct contravention of the treaty. As a result, he went to trial for first-degree murder, having had no contact with a consular officer from his home country and being completely unaware that he was entitled to do so. The Virginia courts improperly relied upon the result of that violation, itself the product of failure to comply with the treaty, to refuse to consider critical exculpatory evidence that was uniquely in the possession and available with the assistance of the consular officers. That evidence would have included official government immigration records, corroborating a key defense witness, and proving that the alternative suspect, a Honduran national, known as Sirena, fled to Honduras the day after the victim died. The Honduran consulate also would have provided Sirena's address and attempted to interview him. Indeed, once Bustillo's habeas counsel located Sirena in Honduras, he obtained a surreptitiously videotaped confession in which Sirena admitted, in chilling detail, to committing the crime and acknowledged that Mario Bustillo had been wrongly convicted.
04-10566 +++$+++ 12371 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Has the Honduran Government offered to arrest and extradite that witness from Honduras to bring him back to the United States?
04-10566 +++$+++ 12372 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not on this record, Your Honor, but the Honduran consulate has offered -- has said it would have attempted to locate Sirena and interview him. And acting with far fewer resources, before the Honduran consulate was even aware of this case, Petitioner's habeas counsel got this confession, the point being it wasn't that hard to get, to trick this person into admitting, yes, he -- he committed the crime. And in the confession, which is on pages 33 to 55 of the -- of the joint appendix, there are a number of -- of details in that confession he could have known no other way. Moreover, the Honduran consulate would have provided, and ultimately did provide, a photograph of Sirena.
04-10566 +++$+++ 12373 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that, Mr. -- could your client's attorney have argued in the Virginia habeas proceeding that his procedural default should have been excused because of ineffective assistance of trial counsel at the time of the default?
04-10566 +++$+++ 12374 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. However, an ineffective assistance claim -- and I should back up. It was raised. The -- the habeas court disposed of it on two grounds, saying it was beyond the statute of limitations because an ineffective assistance claim, based on the Vienna Convention, did not relate back, but also denied it on the merits and said it wouldn't have met the Strickland standard anyway. But the ineffective assistance claim is ineffective to address a treaty violation for two reasons. First, the treaty gives you a right to be notified. It protects the special relationship between a consular officer and the detained foreign national, and channeling these claims to ineffective assistance doesn't vindicate that separate Federal right.
04-10566 +++$+++ 12375 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, Miranda gives you the same, you know, right to -- to reach a counsel, a right to remain silent, and yet, if your lawyer doesn't raise a Miranda violation in trial, it can be waived.
04-10566 +++$+++ 12376 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-10566 +++$+++ 12377 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why should this be elevated to a special status beyond that?
04-10566 +++$+++ 12378 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's not elevated, Your Honor. It's actually treated more like the right it resembles, like a Brady right, which is not defaulted if you don't raise it -- raise it at trial, for three reasons. First, like a Brady case, a Vienna Convention violation resulting in the exclusion of exculpatory evidence is, by its nature, not known at the time of trial.
04-10566 +++$+++ 12379 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but isn't -- isn't the problem with your analogy that counsel do not advise their clients about Brady rights because, by definition or in the normal case by definition, counsel doesn't know whether there's a Brady violation. But counsel does know or, it seems to me, can properly be charged with knowing that when he's representing a foreign national, the foreign national has a Vienna Convention right, just as much as the foreign national has a Miranda right, and he can advise him of that. So it seems to me the Brady analogy is -- is not apt.
04-10566 +++$+++ 12380 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ A Brady violation is a closer match than a -- for example, a Miranda violation, for the central reason that the consular officer and the foreign national, working together, know best whether to exercise those rights.
04-10566 +++$+++ 12381 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But in this case, wasn't it true that the trial counsel knew about the Vienna Convention right and, for whatever reason, thought his client would not be aided by talking to the Honduran counsel -- consul.
04-10566 +++$+++ 12382 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As an initial matter, it's -- it's not perfectly clear in the record. He submitted an affidavit stating that he never advised clients of Vienna Convention violations, but it does not say on this record that he knew at the time of trial about the Vienna Convention. But even granting that he did, the attorney is not in the position to make that decision. This case illustrates why, and this is my second reason why an ineffective assistance claim, Justice Alito, would be insufficient, which is ineffective assistance trusts strategic decisions about whether to invoke a right to the counsel, but the counsel, the lawyer, is not -- is not in a position to make that decision for his client. As this case illustrates, even assuming that the counsel knew about the Vienna Convention right, he said, well, that's more trouble than it's worth. This case illustrates precisely why we don't leave those decisions with the lawyers. First and foremost --
04-10566 +++$+++ 12383 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That may or may not have been ineffective assistance of counsel. But I don't understand why -- if a jurisdiction in this country has a procedural default rule that can be overcome by a showing of cause and prejudice with ineffective assistance of counsel being cause, why isn't that a remedy that is sufficient to give full effect to the treaty, which is what the treaty requires?
04-10566 +++$+++ 12384 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because that cuts out an entire category of treaty violations where it may have been a strategic decision by counsel not to raise it, but where that decision is ultimately mistaken. And as the treaty is structured --
04-10566 +++$+++ 12385 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's true about the right to remain silent or any other rights that are very much the rights of the defendant, not the rights of the counsel, but they're exercised in consultation with the counsel, and if they make a determination not to contact the consul, then that's a decision that counsel made, and if it's ineffective, there are remedies for that. I'm not sure how it's different than the right to remain silent.
04-10566 +++$+++ 12386 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I should back up and -- and point to the first reason why a lawyer isn't effective in making this decision and -- and first, state that the lawyer here never told Mario Bustillo about the Vienna Convention. So it isn't that situation where he consulted with his client and elected not to raise it. He didn't even tell his client. But more fundamentally, the lawyer operates under inherent conflict of interest. The first thing the consular officer does, when he makes contact with a foreign national, is decide is the lawyer that he has good enough. In fact, it's the only form of consular assistance that's specified in the text of the treaty. In article 36(1)(c), it says to ensure that he can obtain adequate legal representation. So the lawyer, who's deciding whether to get the consulate involved, has to think in the back of his mind, well, is the first word out of this consular officer's mouth going to be, well, you know, fire this guy and get a new lawyer. That's why we don't trust those rights to the lawyer, and that's why the treaty doesn't trust those rights to the lawyer.
04-10566 +++$+++ 12387 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But once, at least --
04-10566 +++$+++ 12388 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why -- the ultimate question I think is the one Justice Alito asked. I think, as I read the ICJ treaty, we're under a legal obligation in this country to provide a reasonable, effective remedy. And why isn't that a reasonably effective remedy? Treat it, you know, like any other problem where the client should have learned something and he didn't. If the lawyer is there, this is the obligation. The lawyer tells him, and if the lawyer fails to tell him, then that's ineffective assistance in an appropriate circumstance, or if it isn't, it isn't. But that's a good remedy. What's wrong with that? And the other obligation is, counsel, you have to raise this issue as soon as everybody learns about it, in which case you might be out because I don't -- he's certainly learned about it by the time he was on appeal, and as I read your brief here, he didn't raise it on appeal either.
04-10566 +++$+++ 12389 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd -- I'd like to correct that very clearly. As soon as Mr. Bustillo got new counsel on direct appeal --
04-10566 +++$+++ 12390 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-10566 +++$+++ 12391 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- he submitted a motion to remand to -- back to the trial court, saying there's a Vienna Convention violation --
04-10566 +++$+++ 12392 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He said -- when I read that motion, which I'll do -- so it's in the record?
04-10566 +++$+++ 12393 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, sir.
04-10566 +++$+++ 12394 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where?
04-10566 +++$+++ 12395 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's -- the Virginia courts don't paginate the record --
04-10566 +++$+++ 12396 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do I have it in front of me somewhere?
04-10566 +++$+++ 12397 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's in the record, yes, Your Honor.
04-10566 +++$+++ 12398 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. Now, in other words, he did raise it. Okay. If he did raise it, then maybe he would be entitled to this relief.
04-10566 +++$+++ 12399 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would have --
04-10566 +++$+++ 12400 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But is -- my general question is, is that approach sufficient under the law?
04-10566 +++$+++ 12401 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Getting back -- is ineffective assistance sufficient? Yes.
04-10566 +++$+++ 12402 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Say, in an appropriate case, I can't find a rule for every case -- but that our obligation, as interpreted by the ICJ, is that we have, as the law of the land, a treaty that says you tell the person about his Vienna Convention right, and if you don't, now says the ICJ, there has to be some kind of -- of effective remedy. Now, assuming that's the law of the United States, why isn't this approach an effective remedy?
04-10566 +++$+++ 12403 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because relying on the lawyer to do the duty of the State does not effectuate the fundamental interest the treaty serves, which is establishing direct contact between the consular officer and the lawyer.
04-10566 +++$+++ 12404 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The -- the only thing in -- in the second part of Justice Breyer's question, the only thing that the lawyer has to be relied upon is to get the issue raised at the appropriate point in the trial process. And -- and so, at the very least, what Virginia is -- is arguing here is that he waived it because no objection was raised based upon a prior Vienna Convention failure. That is a very conventional obligation upon lawyers. It -- it's an obligation that goes to Miranda. It's an obligation that goes to any denial of rights of which counsel could or should be charged with knowing, and I don't see why there should be an exception made to -- to that obligation to raise the issue.
04-10566 +++$+++ 12405 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Leaving aside the conflict of interest that the lawyer would suffer on two additional reasons why the -- why the lawyer is not --
04-10566 +++$+++ 12406 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can I come back to the conflict of interest? Was -- was this lawyer a compensated lawyer, or was he a public defender?
04-10566 +++$+++ 12407 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He was retained.
04-10566 +++$+++ 12408 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ He was retained.
04-10566 +++$+++ 12409 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-10566 +++$+++ 12410 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ By whom?
04-10566 +++$+++ 12411 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ By the defendant's family.
04-10566 +++$+++ 12412 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There -- there are rules on conflicts of interest too, you know. So following our normal rules, is there any country, is there any international law, is there anything in American law that would suggest, in respect to any kind of significant procedural failure, that the State has to do more than we're just talking about?
04-10566 +++$+++ 12413 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure I --
04-10566 +++$+++ 12414 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if so, what is it?
04-10566 +++$+++ 12415 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Is there international authority required --
04-10566 +++$+++ 12416 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Anywhere. I -- I just think --
04-10566 +++$+++ 12417 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-10566 +++$+++ 12418 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- think for our most severe violations, we provide an approach that you tell the lawyer. The lawyer brings it up. If the lawyer doesn't bring it up and it's important or there's a conflict of interest or something terrible is going on, normally you'd say that's ineffective assistance. And I just wonder if that approach doesn't work here.
04-10566 +++$+++ 12419 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does not. First and foremost, it doesn't vindicate --
04-10566 +++$+++ 12420 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I'm not interested in, now at the moment, whether it does or does not work. I want to know if there's any country or anywhere else in American law or international law where people have gone further than that. And there might be. I'm asking it seriously.
04-10566 +++$+++ 12421 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- well, the ICJ has held that you can't rely -- that these procedural default rules are not adequate to vindicate the treaty interests.
04-10566 +++$+++ 12422 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm not talking about a procedural default rule. I'm talking about the system that was suggested.
04-10566 +++$+++ 12423 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In -- in terms of ineffective assistance?
04-10566 +++$+++ 12424 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, the procedural default rule would mean you get procedurally defaulted if you fail to bring it up, but I think you might say if you failed to bring it up the first time that the lawyer knew about it. And if it's his fault for not bringing it up or he should have known about it, then he's out -- the client. But if it's not, he's not out.
04-10566 +++$+++ 12425 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that actually would not be the practice in civil law countries, for example, where a judge as the inquisitor has much more flexibility than he does in an adversarial system when and whether to consider evidence that may or may not have come in at the certain time. But I'd like to get back to, Justice Souter, your question, with respect to two additional points why the treaty -- and I'm not saying this is our rule -- the treaty says the State has to notify and -- and it doesn't say the lawyer has to notify.
04-10566 +++$+++ 12426 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. And I'm not -- I'm not suggesting anything that -- that affects that. Yes, the State does have to notify him, and if he wants, the State has to make the phone call. What I am suggesting is that the lawyer should be taxed with knowing that that is the individual's right. The lawyer should be taxed with knowing that because it's the law of the land. It's a treaty. And -- and it seems to me the obligation is upon the lawyer to say, well, did they -- did they tell you, did they notify the consul, just as the lawyer would say, did you get the Miranda warnings. And -- and if the lawyer does not make that inquiry and does not raise an objection, whatever it may be, if in fact the individual didn't get his rights, then I don't see why there should be -- there should not be a waiver with respect to the Vienna Convention objection, just as there is a waiver with respect to a Miranda objection or a search and seizure objection and -- and other constitutional rights.
04-10566 +++$+++ 12427 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And again, ineffective -- an ineffective assistance claim doesn't give full effect because under this Court's cases, if it's -- if it's in the rubric of ineffective assistance, you leave strategic decisions to the lawyer, and so if --
04-10566 +++$+++ 12428 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the problem at the trial level, I think, is you would be -- you couldn't make it at that stage because it's the very lawyer who's ineffective. Here, it was raised by a new counsel on appeal, and that's really the first opportunity it could come up because the -- the lawyer who didn't give this advice certainly isn't going to say, in -- in the course of the trial, I was ineffective. So -- and that's I think the point that the ICJ was trying to make when it said you couldn't use the procedural default rule.
04-10566 +++$+++ 12429 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Ginsburg, and in that sense, it's very much like the rule this Court laid down in Federal cases in Massaro where it -- it explained just the practical difficulties associated with requiring claims that need, for example, a prejudice record, and everybody believes that a prejudice showing would need to be made before you could establish a violation. But here, we'd have to -- we have to go back and we need the tools of post-conviction review to establish prejudice. And here, once we got there -- this is -- this is not speculation. This is a lawyer made a strategic decision, he says, not to tell his client. And then we tried to raise an ineffective assistance claim, and the court said -- in addition to saying it was barred for other reasons, said that doesn't meet Strickland. This is that category of treaty violations that, if you push these claims to ineffective assistance, they evaporate, and that does not get --
04-10566 +++$+++ 12430 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it's the same point we've been covering, but all seem to concede that the particular characteristics of a national system have to be taken into account. And the distinguishing feature of our system is that it's an adversary system. And you're asking us to make an exception to that system --
04-10566 +++$+++ 12431 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-10566 +++$+++ 12432 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- an exception to the usual rules that prevail in that system, and that's not consistent with what the treaty requires.
04-10566 +++$+++ 12433 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it's no more of an exception than Brady, which is exactly the same situation where you have a right that you don't know either the violation has occurred, because they didn't tell him and his lawyer didn't tell him, and you don't know the evidence that could have been developed. Here, once that -- once that missing piece, that one critical part of article 36, direct notification and contact with the consulate, once that key is removed, everything else follows.
04-10566 +++$+++ 12434 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but that's because in Brady, as Justice Souter has already pointed out, there's a factual piece of evidence that the State has withheld. Here, the lawyer is presumed to know the law. It's just not an apt analogy.
04-10566 +++$+++ 12435 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We believe it is, in part, because this is an affirmative obligation on the State. Miranda is a rule, for example, that requires you to say what the -- the rules of the game are and this is how it works. This is different. This is fundamentally different. This says, you've got to tell him individually to go out -- you've got to tell him that he has a right to go out and ask somebody for help, and it gets him access to resources that are uniquely within the possession and control of a consular officer. The government immigration records. The consular -- the lawyer could not have gotten those records. They were crucial to the defense. More fundamentally, the lawyer didn't even know those existed. So even if you would assume that an ineffective assistance claim could remedy violations -- and -- and we certainly believe this case and a large category of other cases could never be remedied through ineffective assistance claims as a practical matter. Even then, all it does is breed ineffective assistance claim after ineffective assistance claim because the trial lawyer doesn't know what's in the embassy's file.
04-10566 +++$+++ 12436 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, maybe after the first ineffective assistance claim is decided in the client's favor, people are going to wake up. I mean, you have to admit at this stage of the game -- and it's not your client's fault, but the -- this is a fairly rare bird. And -- and if, in fact, it were held to be -- let's -- let's assume that -- that on -- on collateral review, someone in your client's position made the following claim. Number one, the State didn't tell me. They -- they failed in their Vienna Convention right. Number two, my lawyer never inquired of me or of anybody else whether the State had given me my -- my Vienna Convention rights. And therefore, my -- my lawyer was ineffective. If on collateral review a claim like that is made, it is accepted and prejudice is found, I would imagine the bar is going to wake up fairly fast to what's going on. Don't you?
04-10566 +++$+++ 12437 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It doesn't seem to be the case. In fact -- and our research has revealed that about 60 ineffective assistance claims based on the Vienna Convention violations -- it's ambiguous as to whether there's one or none where the court has granted relief either on prejudice grounds or performance grounds. So litigants have tried, but that just shows what a poor fit ineffective assistance claims are.
04-10566 +++$+++ 12438 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask you one factual question? And I -- I should know this. I just -- if -- if I did know it, I can't remember it now. Was any ineffective assistance claim raised -- I -- I take it there's no ineffective assistance claim that was ever raised on collateral review here because you've never gotten to a collateral review stage. Is that correct?
04-10566 +++$+++ 12439 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We did file an ineffective assistance claim in the State habeas petition.
04-10566 +++$+++ 12440 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that -- wasn't -- I'm -- I'm sorry?
04-10566 +++$+++ 12441 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the circuit court -- we then tried to amend -- habeas counsel tried to amend the petition to specify an additional -- that to include within that ineffective assistance claim the failure to notify.
04-10566 +++$+++ 12442 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you did that on collateral review as opposed to trying to supplement the direct appeal?
04-10566 +++$+++ 12443 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-10566 +++$+++ 12444 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
04-10566 +++$+++ 12445 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If I may, I'd like to reserve the remainder of my time.
04-10566 +++$+++ 12446 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Stancil. Ms. Williams.
04-10566 +++$+++ 12448 +++$+++ FALSE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Counsel describes the rule that he asks this Court to announce under article 36 as revolutionary, and I think that's accurate. It would be revolutionary for this Court to construe the article 36 of the Vienna Convention to grant an individual foreign national a right to obtain a judicially created sanction against the State for its failure to provide the information that it is obliged to -- to provide under article 36. No other signatory's court has construed the treaty to permit an individual in a criminal proceeding to raise the kind of challenge that Petitioner seeks to raise here, and certainly no other court has suggested that exclusion of lawfully obtained evidence would be the appropriate remedy for that violation.
04-10566 +++$+++ 12449 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Have there been courts that have held the contrary? Have there been courts that said when somebody wasn't notified and they sought to obtain some remedy for that, that even though the treaty has been violated, you have no remedy under our system?
04-10566 +++$+++ 12450 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There have been only a handful of courts that have dealt with the issue.
04-10566 +++$+++ 12451 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which are -- which is the best authority abroad for you that -- where they say, no, we're sorry, we give you no remedy, even though we violated the treaty?
04-10566 +++$+++ 12452 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. The -- a Canadian court has said that the -- that there is no -- no remedy for -- in a criminal proceeding for that sort of remedy. And there are, in fact --
04-10566 +++$+++ 12453 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's a holding? They -- they held that?
04-10566 +++$+++ 12454 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is a holding. It's a lower court opinion. It's not the --
04-10566 +++$+++ 12455 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So we have a lower court opinion in Canada, and you -- and they have a lower court opinion in Australia. Is it fair if I come to the conclusion no one has ever really decided this?
04-10566 +++$+++ 12456 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's absolutely fair, and what's --
04-10566 +++$+++ 12457 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. If -- then if that's fair, is it fair also for us to say that -- that we have to take this treaty, since it's self-executing, as if it were written into American law?
04-10566 +++$+++ 12458 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think, though, it is --
04-10566 +++$+++ 12459 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that fair?
04-10566 +++$+++ 12460 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, that is fair, but I think it --
04-10566 +++$+++ 12461 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. If that's fair, then suppose you're coming -- suppose the treaty had said -- and it's part of American law.
04-10566 +++$+++ 12462 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-10566 +++$+++ 12463 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It didn't say this, but suppose it had. You have to inform this individual, and if you don't inform the individual, you have to give him a remedy so that he is not prejudiced thereby. Now, if it had said that and the State or the Federal Government refused to give him a remedy and it's part of American law, wouldn't we have to say that American law, Federal law, treaty law requires you to do that rather than what you're doing, if it had said that?
04-10566 +++$+++ 12464 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If it had said that --
04-10566 +++$+++ 12465 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-10566 +++$+++ 12466 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I would agree with you.
04-10566 +++$+++ 12467 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And once we're there, it seems to me what we're arguing about is not this metaphysical thing about rights. We're arguing about what the treaty says. Now, if that's so, I -- I think we're back to where we were in the last case and say does this treaty or does it not, as a matter of American law, say that the person is entitled to some kind of remedy. And our problem there is that the ICJ has said, yes, it does, but it doesn't mention it, but it does say that you cannot have procedural rights that do not give full effect to the purpose of -- of this section. So where are we?
04-10566 +++$+++ 12468 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the starting point is with the text and context of the treaty, and beginning with the preamble that makes it very clear that this treaty, like other international treaties, is an international agreement concerned with the obligations of the signatories, not with any particular granting of rights for the individuals who may benefit from those obligations. And one thing that the preamble makes very clear is that matters not expressly regulated by the provisions of the treaty are left to the rules of customary international law. The only remedy that is discussed as part of the -- the treaty negotiation is the optional protocol that would permit signatories, not individuals, to take a dispute under the treaty to the International Court of Justice. So there is little evidence in the context of the treaty and there is evidence contrary --
04-10566 +++$+++ 12469 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the -- the thing is, I found stronger the other way, which you can answer, is that ordinarily, I guess, since they quote in one these amicus briefs, since at least 1927 we consider -- our State Department -- the treaties that have obligations are -- also require appropriate enforcement remedies, et cetera. And we have Avena and we have LaGrand, and there the ICJ, as I read it, has said you have to have some kind of remedy, being pretty vague about what kind it is. All right. So normally we follow the ICJ, if we can. Schooner Betsy and go back forever. All right. So why not? Just follow what they say, say there has to be some kind of remedy. And then we put our minds to figuring out what that kind is.
04-10566 +++$+++ 12470 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, even following the ICJ opinion in Avena does not get Petitioner the relief that he seeks in this Court or that he sought below. It does not get you to suppression of the statements that were made. It's -- it's -- there are a couple of very important things to consider in the Avena decision from the ICJ. They discuss suppression and the exclusionary rule, and they specifically reject Mexico's assertion that there's a connection somehow between the provision of information and -- under the article 36 and the ongoing criminal interrogation. So -- and they also discuss the -- the concept of without delay and what that meant to -- to those who put together the treaty. And it does not mean immediately. So there -- under the ICJ's reading of the treaty, there would not be a basis to suppress the statements that Petitioner seeks to suppress in our court. I think --
04-10566 +++$+++ 12471 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is there any other relief sought by the Petitioner? There was the suppression request. Was there any other? Was there a request of the kind that the ICJ thought would be appropriate, which was, court, reconsider this and determine whether the defendant was prejudiced by the absence of Vienna Convention notice?
04-10566 +++$+++ 12472 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There -- there was not, Your Honor. The only remedy that Petitioner has sought in this case is suppression of the statements. And it's also important, I think, to make the distinction between the Oregon case and the Virginia case. In the Oregon case, it's clear that counsel for Petitioner knew about the obligations under article 36 and raised them in the motion to suppress. And so there's no question about the State's obligation to -- to inform the consul that the -- that Petitioner was being detained or any concern with interference with consular access and communication. The only violation that we have in the case is that the State failed to provide the information that it was obligated to provide under article 36.
04-10566 +++$+++ 12473 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There's a question I would like to ask you about the State. Now, if everything worked ideally, it would be the police officer, along with the Miranda warnings, says, would you like to call your consulate. You could do that if you wish. If it -- if the State has an obligation to give this information under the treaty, but many police officers don't know anything about any Vienna Convention, do judges, Federal judges, State judges, have an obligation, when they see that an alien defendant is before them, to, on the judge's own motion, ask the prosecutor has he been told about the Vienna Convention, and if not, the judge would have an obligation to do so?
04-10566 +++$+++ 12474 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that would be one way to ensure better compliance with our obligations under the treaty. The treaty requires competent authorities to provide the information and doesn't specify exactly who is included and who is not included in that category. Oregon and other States, along with --
04-10566 +++$+++ 12475 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So State -- you don't have any problem with State judges being enlisted as officers to execute Federal treaty obligations on behalf of the State Department or someone?
04-10566 +++$+++ 12476 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I was hearing the question, I guess, of whether that would be something that judges could do, and I -- and I was responding to -- to that part of it. I don't think that -- that judges are obligated to provide that as a requirement of the treaty. I think it does fall on the State authorities to provide that information.
04-10566 +++$+++ 12477 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can you tell us what the State of Oregon has done in this regard --
04-10566 +++$+++ 12478 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This --
04-10566 +++$+++ 12479 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- or other States?
04-10566 +++$+++ 12480 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We have done a number of things. In 2000, the Attorney General put together a task force that included consular officials, law enforcement officials, jail managers and, working together, devised some better education tools so that -- that there could be more education in terms of the -- the competent authorities who need to provide this information.
04-10566 +++$+++ 12481 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, how do you think it should -- you think the police officer should give it as part of the Miranda warnings, or what's -- what's your conclusion as to how it should be implemented?
04-10566 +++$+++ 12482 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The State Department has recommended that as soon as it is known that the individual is a foreign national, that the information be given. I think that it is not --
04-10566 +++$+++ 12483 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Does this mean that the -- the desk sergeant in the police station or who?
04-10566 +++$+++ 12484 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We've actually worked with our jail managers to develop a form that could be used as part of the booking process to provide the information. And the -- I mean, I think the more we do the education, probably the better the compliance will be. But what's important is that we're attempting to do that not because the treaty obligates that sort of immediate notification at the risk of not being able to use evidence obtained in a later criminal proceeding.
04-10566 +++$+++ 12485 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it does obligate immediate notification to the defendant, doesn't it?
04-10566 +++$+++ 12486 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It says without delay that the information should be provided, but that phrase, without delay, when you look at the prefatory materials and how the ICJ has construed it, doesn't mean immediately.
04-10566 +++$+++ 12487 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but there are two different without delay points: one, when you tell the -- the defendant; and secondly, whether or not he wants the consulate notified, and there's the second delay.
04-10566 +++$+++ 12488 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And the way the ICJ has construed that, after reviewing the materials, is that the phrase, without delay, means the same thing in the three places that it's used in the treaty. And so there is -- it's not an immediate requirement. There is some time that can pass, and in some countries, there may be considerable time.
04-10566 +++$+++ 12489 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So you think it's -- it's not -- it's not required for police interrogators in the station to include this? They can -- they can wait?
04-10566 +++$+++ 12490 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is not required under the treaty that the advice be given prior to interrogation. That's correct.
04-10566 +++$+++ 12491 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, how about during the interrogation?
04-10566 +++$+++ 12492 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At some point in a prolonged interrogation, that right is -- that obligation will arise.
04-10566 +++$+++ 12493 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I mean, it seems to me it's not like rocket science. You've had study groups and everything. Well, you just tell the policemen give them -- give them the advice. End of case.
04-10566 +++$+++ 12494 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, and part of the difficulty is it's not so easy to give simply a simple advice because it's not always clear that someone is a foreign national, and even if there's a suggestion that someone might be --
04-10566 +++$+++ 12495 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, that's easy. If you are a foreign national, you -- that's easy too. I don't -- I don't see why this is so complicated.
04-10566 +++$+++ 12496 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The other difficulty is that for some foreign nationals, this is not -- this is not the case where the detainee controls the contact with consular officials. We have mandatory notification obligations. So it's important to establish what country the individual is from, and some individuals would prefer that the officials not know what country they are from.
04-10566 +++$+++ 12497 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but -- I mean, all you've got to do is --
04-10566 +++$+++ 12498 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's their problem.
04-10566 +++$+++ 12499 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You ask him what his name is. Why don't you ask him whether he's an American citizen? If he says no, say what country are you a citizen of. I mean, I -- I don't see the difficulty of that.
04-10566 +++$+++ 12500 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And certainly we're hoping to move toward better compliance by moving toward that goal. But the question in this case --
04-10566 +++$+++ 12501 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, I mean, why does it have to be a distant goal? I mean, it seems easy.
04-10566 +++$+++ 12502 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I think it gets easier as more cases like this one certainly get the message out.
04-10566 +++$+++ 12503 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Of course, he doesn't have to answer that.
04-10566 +++$+++ 12504 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Your answer -- your answer doesn't give me confidence that you're implementing the treaty.
04-10566 +++$+++ 12505 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the question is when there is a violation and -- and if it's from lack of education or lack of effort on the State's part to ensure that people understand the obligation, then does the treaty give the individual the right in a criminal proceeding to have that lawfully obtained evidence kept out of the proceeding. And so certainly we can make better efforts to improve compliance with what is an obligation that we have under the treaty, but that doesn't take this Court to suppressing the evidence in the criminal proceeding, and that's what Petitioner has sought from the Court.
04-10566 +++$+++ 12506 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ A little while ago you were asked about the judge asking whether or not to ask the defendant if the advice was given him. And the suggestion was made there's no duty on the State judge to enforce a Federal treaty, but if it's a matter of Federal law, why wouldn't it be a duty to -- on the judge to obey Federal law if -- if it is part of our Federal requirement?
04-10566 +++$+++ 12507 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the question would come down to whether the judge falls in the category of competent authorities under the treaty, and I'm not sure how that would be construed, whether it would be construed to include the judge or if it's primarily focused on the -- the State government officials who would be involved in the -- the criminal proceeding. Unless the Court has further questions, thank you.
04-10566 +++$+++ 12508 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Ms. Williams. Mr. Thro.
04-10566 +++$+++ 12510 +++$+++ FALSE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The Vienna Convention does not create judicially enforceable individual rights. Nevertheless, if this Court were to hold that it does create individual rights, those treaty claims should not be treated more favorably than constitutional claims. In Virginia, if a criminal defendant has a Miranda claim or a Fourth Amendment claim and fails to raise it at trial, he may not raise it on collateral review. The same reasoning should apply with respect to any violation of the Vienna Convention. There's no reason to elevate a treaty claim above a Miranda claim or a Fourth Amendment claim.
04-10566 +++$+++ 12511 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does -- does -- would Virginia allow the -- a claim of ineffective assistance of counsel to be raised on collateral review for a failure of counsel to -- to advise the client or take action on the client's behalf under the Virginia Convention -- the Vienna Convention during -- during the -- the direct proceedings?
04-10566 +++$+++ 12512 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. If -- if this Court were to announce a new rule that the Vienna Convention confers individual rights, and if counsel failed to raise that at trial, and if that failure constituted ineffective assistance under the standard articulated in Strickland v. Washington, then it would be permissible for that criminal defendant to raise it in his collateral review. Yes. And in fact, Mr. Bustillo attempted to raise an ineffective assistance of counsel claim, did raise an ineffective assistance of counsel claim in the State trial court. That claim was denied, and for whatever reason, he chose not to appeal that to the Virginia Supreme Court.
04-10566 +++$+++ 12513 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I have a couple --
04-10566 +++$+++ 12514 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There was a State collateral review?
04-10566 +++$+++ 12515 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. It was on State collateral review, Your Honor.
04-10566 +++$+++ 12516 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- thinking of the wrong thing, but it seemed to me I have a couple of opinions here on habeas, State habeas, where they did raise it. Am I thinking of the other case?
04-10566 +++$+++ 12517 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it was raised in the -- in the State trial court, Your Honor.
04-10566 +++$+++ 12518 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and not on --
04-10566 +++$+++ 12519 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but what was -- and the State trial court chose to deny the ineffective assistance of counsel claim on a variety of reasons, and it was chosen -- he chose not to appeal that to the Supreme Court of Virginia.
04-10566 +++$+++ 12520 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought the first time it was raised was on direct appeal by appellate counsel.
04-10566 +++$+++ 12521 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Appellate counsel on direct appeal attempted to raise it. He filed a motion requesting a -- a remand. That motion was denied as -- as improper. Then in -- once the conviction had been affirmed by the Virginia Court of Appeals, by the Supreme Court of Virginia, and review had been denied by this Court, he went back and filed a collateral review claiming ineffective assistance of counsel for, among other things, failure to raise the Vienna Convention. The trial court denied that ineffective assistance of counsel claim, and then there was no -- and then the decision was made not to pursue that -- the appeal of the denial of the ineffective assistance of counsel claim to the Supreme Court of Virginia.
04-10566 +++$+++ 12522 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And the reason for the denial?
04-10566 +++$+++ 12523 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There were several reasons for the denial, one of which was statute of limitations, but the court also noted that even if it had been made within the statute of limitations, there was no merit to it. The record reflects, Your Honor, that Mr. Bustillo's retained trial counsel was fully aware of the Vienna Convention claim. In fact, he was the son of Salvadoran diplomats and was familiar with Vienna Convention issues. He made a strategic decision that it would be better to -- to contain his client and to contain the amount of people talking to his client and, therefore, he should not raise the Vienna Convention issue at trial. And that is set forth in the affidavit of retained counsel, set forth on pages 318 through 319 of the habeas record in the Fairfax County Circuit Court.
04-10566 +++$+++ 12524 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I think that counsel said that the -- the people at the consulate -- they tend to talk a lot?
04-10566 +++$+++ 12525 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, he -- yes, he did, Your Honor, and having grown up as the son of diplomats, he was obviously familiar with diplomats and their behavior in social settings. And it was his feeling and his strategic view that his client was better off not raising and not contacting the consulate. But, again, this goes back to the basic point that Justice Kennedy raised earlier. In America, we give all criminal defendants, regardless of nationality, a lawyer to represent them. We charge that lawyer with knowing their rights and with vindicating their rights, with making the objections necessary to vindicate Miranda rights, with making the necessary objections with respect to the Fourth Amendment. The Vienna Convention should be no different. If this treaty does, in fact, create judicially enforceable individual rights, then the attorneys who are appointed or to represent these people will know about that and will be responsible for vindicating. That's how we do things in the American system.
04-10566 +++$+++ 12526 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So then the -- then the only question really is this thing that I find metaphysical, and maybe you can explain it. To start talking about the individual rights that -- enforceable, that sounds to me like a -- you know, a case that arises under 1983 or something. But I thought we don't need that concept. We all agree that -- that this -- this is the law of the United States. It's self-executing. And the only question is whether the action here violates a provision of the treaty, which is the law of the land. What else is there? And -- and the only thing I read that the ICJ said, it said, by the way, I'll tell you what kind of procedural rule you can't have. You can't have a procedural rule that says after you failed to inform him of the right and after he's unbelievably prejudiced, you say he can't raise it because he didn't raise it before he could possibly have found out about the right. That would be self-defeating. So you can't have that kind of a rule. Now, do you agree with that?
04-10566 +++$+++ 12527 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. No, Your Honor. We --
04-10566 +++$+++ 12528 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You explain to me where I -- where I --
04-10566 +++$+++ 12529 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I will certainly attempt to do so. I -- I think the flaw in the ICJ's reasoning is failure to recognize that in the United States all criminal defendants are -- are given an attorney, and that that attorney is charged with providing constitutionally effective assistance of counsel, meaning being aware of all of the constitutional rights and all of the Federal and State statutory, and presumably Federal -- Federal treaty rights as well. There's no doubt that no Virginia official informed Mr. Bustillo of his opportunity to contact the consulate, but it is also clear that his retained counsel knew of it and chose not to pursue it. Now, that may or may not be ineffective assistance of counsel, but it does not justify setting aside the State's procedural bars on collateral review, which would apply for a Miranda violation or a Fourth Amendment violation. I would also note, Your Honor, that the United States is unique in the world in having an extensive system of collateral review for criminal convictions. Most of the rest of the world doesn't have a method of collateral attack. So if the rest of the world doesn't have to have a method of collateral attack, it seems rather disingenuous to suggest that the United States has to modify our rules of collateral attack in order to accommodate the treaty.
04-10566 +++$+++ 12530 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is -- is a defense counsel a competent authority under the treaty for the purposes of notifying the accused?
04-10566 +++$+++ 12531 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I don't think that -- that he is, Your Honor. However, the -- a defense counsel would be, if this Court were to announce a new rule -- would be charged with the knowledge and, therefore, could I think correct any error that may have been made by the failure of the local officials or the national officials to inform the criminal defendant of his opportunity to contact the consulate.
04-10566 +++$+++ 12532 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You know, one thing I find difficulty understanding in this case is I just can't understand how a lawyer thought it would be to his client's advantage not to consul -- not to tell the consul because the facts are quite persuasive that he really was severely prejudiced by the fact he didn't get all the help he could have gotten.
04-10566 +++$+++ 12533 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your -- Your Honor, I would refer -- I -- the only thing in the record is the affidavits of -- of the retained counsel. He made that as a strategic judgment. Obviously --
04-10566 +++$+++ 12534 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How -- how could he make such a judgment? I just don't understand it. You know --
04-10566 +++$+++ 12535 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
04-10566 +++$+++ 12536 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because the prejudice is just stark in -- in this case. It just stands out and -- and you just wonder what was going on here.
04-10566 +++$+++ 12537 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, with all due respect, Your Honor, we would disagree as to whether -- as to the extent of the prejudice. I believe that his affidavit in -- both with respect to the Vienna Convention claim and his previous affidavit with respect to just other varieties of ineffective assistance of counsel claims, indicates that he had some concern about the credibility of some these witnesses who were identifying Mr. Sirena. But in any event, he made that strategic judgment. The trial court said that it was not ineffective assistance of counsel, and for whatever reason, that judgment was not appealed to the Virginia Supreme Court.
04-10566 +++$+++ 12538 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You know, that's kind of a tough position to put the lawyer in. If he's not a competent authority for notification purposes and he makes the judgment that, you know, I don't think it's going to do any good to notify the consulate, wouldn't he be better advised not to tell his client about it? Because if he does, then it's, I guess, harmless error that the State hasn't notified him, and if he doesn't, it's kind of an ace in the hole. You see how the trial goes, and at the end say, by the way, the State never notified my client.
04-10566 +++$+++ 12539 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's perhaps so, Your Honor, and that's one thing -- thing that, whatever rule you craft, you need to be very careful of and that is preventing gamesmanship on -- on the part of attorneys and criminal defendants so that these Vienna Convention claims are not raised after the fact, which is another reason to -- to --
04-10566 +++$+++ 12540 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's kind of like a speedy trial claim. Right? I mean, if the lawyer knows he has a right to a trial within a certain number of days, and he doesn't -- it's not his obligation to notify the State. He just kind of watches the clock and lets the clock run out, and then he has a claim based on that. Right?
04-10566 +++$+++ 12541 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, he would.
04-10566 +++$+++ 12542 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, that might be likely if there had been a history of these claims being successful, but none has ever prevailed. So I doubt if that would be very -- very good to figure you can, you know, save your -- your key argument that has no precedent of winning.
04-10566 +++$+++ 12543 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, and that would obviously be if your -- if this Court announced a new rule, then that would perhaps change the thing. If there are no further questions, thank you.
04-10566 +++$+++ 12544 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Thro. Mr. Garre.
04-10566 +++$+++ 12546 +++$+++ FALSE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The failure to inform a foreign national that his consulate may be notified in the event of his arrest gives rise to a treaty violation between sovereign states, but it does not give rise to an individually enforceable right. That follows from the text of the Vienna Convention and its ratification history --
04-10566 +++$+++ 12547 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I wonder what that means. Suppose that the treaty provides that if the individual sends a letter to the counsel, they have to deliver it. Doesn't it?
04-10566 +++$+++ 12548 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does, Your Honor.
04-10566 +++$+++ 12549 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, suppose a sheriff somewhere grabs the letter, keeps it, and the counsel sues him under State property law. And State property law, they say, entitles me, says the counsel, to this letter. It's mine. It was sent to me. Now, if that happens to be the interpretation of the judge in the State of X the sheriff can keep the letter, wouldn't you say that that property law of the State is invalid in light of this provision of the treaty, which is the law of the United States self-executing?
04-10566 +++$+++ 12550 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think in that situation you would have -- you wouldn't be asserting an individual right under the treaty. You ultimately --
04-10566 +++$+++ 12551 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. I just would like an answer to my question.
04-10566 +++$+++ 12552 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There could be situations --
04-10566 +++$+++ 12553 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. I've given you the straight facts. The straight facts are they sue -- I don't have to repeat them. I want to know under -- under my straight facts, wouldn't you say that -- you got the question.
04-10566 +++$+++ 12554 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The straight -- I think the answer would be is you would have a treaty violation if you had a State law which prevented our Nation from giving effect to our obligations under the Vienna Convention --
04-10566 +++$+++ 12555 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I'm not saying a treaty. I'm saying there's a letter and wouldn't it be the case that the judge would have to say, here, Mr. Sheriff, you take the letter and you hand it to the counsel? It's his property.
04-10566 +++$+++ 12556 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If they were asserting a cause of action under State property law and that were the result, then yes.
04-10566 +++$+++ 12557 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's correct.
04-10566 +++$+++ 12558 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would be the case, Your Honor.
04-10566 +++$+++ 12559 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay, fine.
04-10566 +++$+++ 12560 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but --
04-10566 +++$+++ 12561 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And now what they're doing here is they're saying we have a cause of action. It's called habeas corpus. And we're asking for a rule of decision in that cause of action, and the rule of decision in this cause of action, just like mine, was in property. Is the decision -- the rule of decision is the rule written into the treaty, just like in the property case, and you cannot do anything that contravenes it though, of course, you can argue about the content of that rule of decision.
04-10566 +++$+++ 12562 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In these -- in these two cases -- one you have on Federal habeas, one you had on direct appeal -- individuals are seeking to affirmatively invoke rights that they claim that they can enforce under the Vienna Convention, and we don't think that the Vienna Convention confers those individual rights. If -- if I could try to explain the -- the -- what you referred to as a metaphysical question earlier. We agree that the Vienna Convention, as a self-executing treaty, is part of our Federal law.
04-10566 +++$+++ 12563 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But is there a difference between the rights that could be asserted by the consul or a consulate official and the rights that could be asserted by a criminal defendant?
04-10566 +++$+++ 12564 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so, Justice Alito. The -- the treaty has an enforcement mechanism, and that's -- that's an important thing to keep in mind. The -- the signatories to this treaty permitted for a judicial enforcement mechanism.
04-10566 +++$+++ 12565 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If the consulate official knew that a national of that country was being detained and wanted access to that person and that was being denied by -- by the State officials, there would be no remedy in Federal court? The consulate -- the foreign country could not obtain -- could not get Federal enforcement of that right to get access?
04-10566 +++$+++ 12566 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Justice Alito. The remedy would be the traditional remedy for enforcement of treaties, diplomatic repercussions, diplomatic protests, and that happens all the time. That happens in this country where -- where consulates complain to the United States State Department. It happens overseas where the State Department complains about the treatment of American citizens. This -- this --
04-10566 +++$+++ 12567 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are there any countries that recognize individually enforceable rights under this convention overseas on behalf of American citizens?
04-10566 +++$+++ 12568 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, and what -- the Petitioners and their amici here are asking this Court to be the first court to recognize an individually enforceable right under this treaty.
04-10566 +++$+++ 12569 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What about that Australian case that was mentioned, I believe one case where they say --
04-10566 +++$+++ 12570 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor --
04-10566 +++$+++ 12571 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- evidence was excluded? That would have been a --
04-10566 +++$+++ 12572 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There -- there is Australian authority going directly to the contrary. It's -- it's the R. v. Abbrederis case which we cite, which -- which recognizes that the article 36 is individually enforceable. The -- the other cases that are referred to by some of Petitioners' amici are -- are addressed at length in the Criminal Justice Legal Foundation amicus brief. And they explain that in those situations, there -- first of all, the cases are a little bit vague as to which provisions they're purporting to enforce. But, second of all, there are domestic statutes which we think that the correct reading of the cases is in those cases they were giving effect to the domestic statutes. There's certainly no -- no unambiguous example that --
04-10566 +++$+++ 12573 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I imagine there's not -- there's some little authority both ways. To put it in my perhaps -- I know you disagree with this way of thinking about it. But I'm -- I'm thinking about this article 36 and thinking that you're reading it as if it said, inform the individual, but if you don't, he can't do anything about it. And the other way is to read the silence as if it said, inform the individual, but if you don't, he can do something about it. We're not saying what. Okay. Now, between those two interpretations, we have the ICJ picking interpretation two and rejecting interpretation one in, I grant you, a different case. But I guess since a lot of these amicus briefs tell us throughout history, a long history, we've tried to follow ICJ interpretations of treaties to which we are parties. Why -- it's all up to us, but we've tried to. Why -- why should we not, given the two possible interpretations -- they choose one. Why should we not choose to follow theirs here?
04-10566 +++$+++ 12574 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because, to be blunt, the ICJ decision is wrong. This Court gives respectful consideration to the decisions of the ICJ and other international tribunals, but it's certainly not bound by those decisions. This Court should look carefully to the text of the treaty itself, to the ratification history, to the consistent interpretation of the executive branch, and to implementing practice in other states. At best, they -- Petitioners and their amici have suggested that there's some ambiguity in -- in two states, Australia and Great Britain. There are more than 160 contracting states to this -- to this treaty.
04-10566 +++$+++ 12575 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, then you're going back to putting weight on the absence of authority. In those contracting states, most of which I guess are civil system states, and in civil systems, you'll have magistrates who do take this kind of thing into account, but you won't find a case on it. So -- so --
04-10566 +++$+++ 12576 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What you don't --
04-10566 +++$+++ 12577 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- are there authorities in these other states to the contrary? I'm surprised if there is.
04-10566 +++$+++ 12578 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are authorities that we've cited where courts have rejected the notion that article 36 creates individually enforceable rights, in Canada and Australia, and there's a case in Germany where they refused to provide for a suppression remedy. So there are authorities going the other way. The manner in which this treaty is implemented by the State Department overseas and by the State Department here is to provide for enforcement through the traditional means. This Court, as long back as the Head Money Cases, said that the traditional -- treaties are compacts between states. The traditional means of enforcing those obligations is through diplomatic repercussions.
04-10566 +++$+++ 12579 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In your view, just as a practical matter, what we have here, how -- how should the States enforce this obligation?
04-10566 +++$+++ 12580 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the States should enforce it generally by giving information to the detainee at the point in time when they realize -- determine that he's a foreign national. The State Department is engaged in extensive --
04-10566 +++$+++ 12581 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do they have any obligation to inquire whether he is? And -- and can you be more specific? Should it happen --
04-10566 +++$+++ 12582 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Generally --
04-10566 +++$+++ 12583 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- when you first give him the Miranda warnings, or tell me how you think it should work?
04-10566 +++$+++ 12584 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Generally it happens during the arrest process. If -- if, during the course of questioning, they determine that a detainee or arrestee is a foreign national, then at that point in time, generally they would provide consular notification. The State --
04-10566 +++$+++ 12585 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you think they have the affirmative obligation to ask him if he is a foreign national?
04-10566 +++$+++ 12586 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The State Department advises law enforcement officers at the Federal and State and local level that ordinarily they should make that determination.
04-10566 +++$+++ 12587 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If they don't -- if they can't ask him -- I mean, I assume many foreign nationals are detained fairly close to the border, and if you start saying, well, my first question is, are you a citizen or not, you've got to give Miranda warnings first saying you don't have to answer any question that might incriminate you.
04-10566 +++$+++ 12588 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
04-10566 +++$+++ 12589 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's kind of a catch 22.
04-10566 +++$+++ 12590 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Mr. Chief Justice. And many foreign nationals are reluctant to provide information about their citizenship because they fear that that could result in other legal jeopardy. Importantly, Justice Kennedy, article 36 is in no way an interrogation right. It has no connection to interrogation. The International Court of Justice in the Avena decision, at page -- at paragraph 87, specifically made that point, that this was not related to interrogation. In many European countries, detainees who are arrested not only can't have access to consular officials during questioning, they don't even have access to lawyers during questioning. So -- so this --
04-10566 +++$+++ 12591 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I thought you indicated that you advise the States that they do have to advise him of this right during the booking process or the interrogation.
04-10566 +++$+++ 12592 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, when they -- when they learn that the person is a foreign national. Oftentimes, that could happen -- that could happen during questioning, although oftentimes it doesn't. It could happen at booking. It could happen later in the process. That's what the State Department advises law enforcement officials. The State Department has engaged in extensive efforts to ensure compliance with this treaty in order to abide by our international obligations. We -- we have sent information to State and local law enforcement officers how to comply with this treaty. There have been training videos. There have been cards similar to Miranda cards. More than 600,000 of those cards have been sent out to local officials, and -- and the initial indications that we've received is that these efforts are working. In fact, these indicate -- these efforts are -- are outlined in the Hardy affidavit, which is in volume II of the Counter Memorial and Avena decision, which we've offered to lodge with the Court. But -- but we -- the feedback we've gotten is that in some offices, they're being overwhelmed by notifications. So the United States is seeking to abide by its treaty obligations. Those efforts are working. This --
04-10566 +++$+++ 12593 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Has it worked the other way around when a young American citizen is detained in -- in a jail someplace abroad, and has the United States ever then -- what efforts have been made?
04-10566 +++$+++ 12594 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the efforts that we undertake are diplomatic efforts. We do not go into foreign courts and assert or suggest that American citizens should go into foreign courts and assert a right to individually enforce this treaty either through suppression or any of the other remedies that have been suggested.
04-10566 +++$+++ 12595 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Has it worked anyplace? Take Mexico, Turkey, any country you'd like.
04-10566 +++$+++ 12596 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. In fact, during the 1980's the United States complained to Mexico about the fact that American citizens had not received consular notification, and through the result of those diplomatic discourses, they negotiated an -- a agreement whereby American citizens were brought back to the United States for custody. But significantly there, the -- the United States didn't take the position that those convictions were unlawful or could be set aside under the Vienna Convention. They simply, through diplomatic discourse, the traditional means of enforcing a treaty, provided for the -- the transfer of these citizens back to the United States to serve out their custody. The -- the traditional rule in international law is that treaties don't create individually enforceable rights. Many treaties, by their terms, do expressly contemplate private enforcement in domestic courts. Look at article 28 of the Warsaw Convention. Look at article 2, subsection 3 of the International Covenant on Civil and Political Rights. These treaties do expressly contemplate that theirs -- their provisions will be individually enforceable in the domestic courts. It would have been --
04-10566 +++$+++ 12597 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When you say they -- they contemplate it, how do they express that contemplation? I mean, are -- are there magic words that diplomats understand or -- or what?
04-10566 +++$+++ 12598 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, they refer to rights that individuals can assert or should be able to assert in judicial courts, in the domestic courts.
04-10566 +++$+++ 12599 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they -- they provide expressly that these are rights that may be asserted individually in national courts?
04-10566 +++$+++ 12600 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There -- Your Honor, there are varying degrees of specificity, but yes, they -- in some cases they do provide for that explicitly.
04-10566 +++$+++ 12601 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they -- they go beyond the reference to rights as -- as in article 36.
04-10566 +++$+++ 12602 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. They -- they refer to domestic enforcement.
04-10566 +++$+++ 12603 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do they, in all those property cases, you know, from like the early part of this republic where property law was determined in accordance with -- you know all those cases that are cited.
04-10566 +++$+++ 12604 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-10566 +++$+++ 12605 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In those treaties where the courts then looked to the treaty to help decide who owned what property, they used it as a rule of decision. Do those cases -- treaties all use the word individually enforceable rights?
04-10566 +++$+++ 12606 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They didn't, Your Honor, but those treaties, as we explain in our brief, are dealing with commercial relations, property rights, and -- and are almost entirely dealing with individuals and how they should be treated in foreign states, are much more amenable to a construction that they create individually enforceable rights. And the Vienna Convention, which after all is a convention about the quintessential matter of interstate relations, consular functions between states -- we don't think that that treaty can be interpreted to confer individually enforceable rights.
04-10566 +++$+++ 12607 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where does this term come from as applied to a rule of decision? I mean, when somebody is arguing that the treaty should apply a rule of decision in a case brought under some other cause of action, what's the best thing I could read? I'm not an expert.
04-10566 +++$+++ 12608 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
04-10566 +++$+++ 12609 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You say the way to think about that --
04-10566 +++$+++ 12610 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- read --
04-10566 +++$+++ 12611 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- is the, quote, individually enforceable rights.
04-10566 +++$+++ 12612 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We would suggest read the treaty. It's -- it's -- we agree with you that you get back to the treaty and you have to make the determination that the signatory states to the treaty intended for private enforcement in domestic courts. The signatory states to this treaty provided for a very limited judicial enforcement mechanism, only contracting states that join the optional protocol and only in the ICJ. It would have been an extraordinary thing for those contracting states that so carefully limited that remedy to -- to subject themselves to suit in their own courts to any number of foreign nationals who went abroad into their countries.
04-10566 +++$+++ 12613 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I -- I would agree there, but we're not -- this -- this isn't a case about subjecting them to suit.
04-10566 +++$+++ 12614 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What you -- what you -- what they're asking you to do, Your Honor, is to say that this treaty is individually enforceable in our courts.
04-10566 +++$+++ 12615 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, yes, but -- but that is -- that's not equivalent to saying that it's -- it is subjecting the United States to suit.
04-10566 +++$+++ 12616 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ May I answer the question?
04-10566 +++$+++ 12617 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-10566 +++$+++ 12618 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is, Your Honor, insofar as if you think it in waiver of sovereign immunity terms. A state may waive its sovereign immunities from some types of claims, but not other types of claims. And what they're claiming here is that these claims are enforceable, and we think that they are incorrect.
04-10566 +++$+++ 12619 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Stancil, you have 4 minutes remaining.
04-10566 +++$+++ 12621 +++$+++ FALSE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. I'd like to first briefly address two points on behalf of Mr. Sanchez-Llamas. First, with -- with respect to him, the question is how to give full effect to the treaty in the context of custodial interrogation, and his position is that suppression is necessary to give full effect. And we need look no further than the fact that the custodial -- that the remedies that are currently afforded in a context of custodial interrogation are ineffective. And secondly, admitting evidence encourages violations, and that's been the -- the result that's been a constant pattern and practice of violations. If I could switch back to Mr. Bustillo's case, and I'd like to address what Mr. Garre just said, which is that there's a presumption or that -- that treaties don't create individually enforceable rights. Every decision of this Court is unambiguously clear. Where you have a treaty that becomes part of the domestic law -- here it is. Where that treaty creates rights -- here the treaty says his rights. And third and critically, where you have a cause of action to enforce those rights, it is judicially enforceable as a matter of domestic law. Regardless of the international dimension of the treaty, as a matter of domestic law, it is enforceable.
04-10566 +++$+++ 12622 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it refers to his rights, to make it clear that the consular office does not have the right to contact him in the situations where he would prefer not to be contacted by his consul.
04-10566 +++$+++ 12623 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I disagree, Your Honor. If -- if you look at the treaty's text, it says, you shall notify the person affected of his rights. It's referring to the foreign national specifically. And twice more, article 36(2) talks about the rights that are created. These all flow directly to the foreign national. He decides whether to exercise them. This is a classic rights-creating piece of -- it's not a -- it's not a statute, but it's treated on par. And if you look at the --
04-10566 +++$+++ 12624 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I -- I thought you said the third condition was creation of a cause of action.
04-10566 +++$+++ 12625 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Availability of a cause of action. Here --
04-10566 +++$+++ 12626 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where -- where is that in this statute?
04-10566 +++$+++ 12627 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Virginia habeas statute provides a cause of action if you are held in violation of Federal law, and in Sanchez-Llamas, the cause of action is the criminal prosecution. That's what the Court did in Rauscher where it allowed him to --
04-10566 +++$+++ 12628 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You meant the statute has to create a cause of action.
04-10566 +++$+++ 12629 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The cause of action, just like 1983, allows --
04-10566 +++$+++ 12630 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, the -- the treaty has to create a cause of action.
04-10566 +++$+++ 12631 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's not correct. Just like 1983 has to create a cause of action to vindicate Federal rights, here --
04-10566 +++$+++ 12632 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, 1983 is a good example. If you have a -- a treaty between a State and the Federal Government, a Spending Clause provision, that says you've got to spend the money this way, give certain rights to the individuals, we don't always automatically hold that the individuals have enforceable rights even under 1983.
04-10566 +++$+++ 12633 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not automatically, but if you have a statute that said his rights and refers rights and makes it his obligation and his decision whether to invoke them, it would be classic rights-creating. If I --
04-10566 +++$+++ 12634 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It said his rights in Gonzaga v. Doe, which dealt with the student privacy rights act, and we held -- and the -- we -- the Court held that that was -- did not give rise to individually enforceable rights.
04-10566 +++$+++ 12635 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would -- I would compare the language of article 36(2) to any of the rights cases this Court has decided. If I could, in my remaining minute, describe why -- and this goes to the heart of what we were talking about with the procedural bar. If the question is, as Justice Breyer put it, whether pushing these claims to ineffective assistance is self-defeating, we have ample evidence here that it is. The State says, well, it may or may not be ineffective assistance. The State court said it wasn't ineffective assistance. That's because trial counsel doesn't have unique experience and knowledge necessary to make these decisions. That's why the treaty expressly puts it in the hands of the foreign national to make these decisions, not the lawyer. And, with respect, if -- if -- the State has asserted that we haven't raised an ineffective assistance claim. We did -- we did recharacterize in the Virginia Supreme Court, on pages -- page 203, note 4 of the joint appendix, that if you wanted to flip all this on its head, you could certainly -- you would certainly have to conclude that he created -- that he committed ineffective assistance of counsel.
04-10566 +++$+++ 12636 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Stancil.
04-10566 +++$+++ 12637 +++$+++ TRUE +++$+++ MR. STANCIL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-10566 +++$+++ 12638 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The case is submitted.
04-1067 +++$+++ 12642 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Georgia versus Randolph.
04-1067 +++$+++ 12643 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++  +++$+++ Mr. --
04-1067 +++$+++ 12644 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ Ms. Smith.
04-1067 +++$+++ 12646 +++$+++ FALSE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The question presented in this case is whether one occupant can give law enforcement valid consent to search the common areas of a premises shared with another, even though another occupant is present and objects to the search. The State of Georgia submits that the answer to this case is a resounding yes. It is reasonable to recognize that a person who satisfies Matlock's definition of common authority -- that is, a definition that is not based upon property-law concepts, but one who has mutual use of property by virtue of having joint access or control for most purposes -- can give consent for a search of that premises, in his or her own right.
04-1067 +++$+++ 12647 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Do we look to what is socially acceptable? Is there some language to that effect in some of our cases?
04-1067 +++$+++ 12648 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There has been some of that in some of the prior cases, Your Honor, that you do look to social norms. You've also said --
04-1067 +++$+++ 12649 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Do you think it is the norm that, if there are co-inhabitants of a house or apartment, that it's okay to let a stranger in, against the express wishes of your spouse or co-inhabitant?
04-1067 +++$+++ 12650 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that is --
04-1067 +++$+++ 12651 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ You think that's socially acceptable?
04-1067 +++$+++ 12652 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it is -- I think it is common, Your Honor. As much as one would like to think --
04-1067 +++$+++ 12653 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Well, it might be common, but I'm not sure that's an acceptable kind of performance.
04-1067 +++$+++ 12654 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think, Your Honor, we have what we have called either adduced expectation of privacy or a limited expectation of privacy or what we called a shared expectation of privacy, by making the decision, long before police appear at the door, to share this premises with someone. And by --
04-1067 +++$+++ 12655 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ What --
04-1067 +++$+++ 12656 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that decision --
04-1067 +++$+++ 12657 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ -- what if the spouse had put a sign up, "No police allowed here"?
04-1067 +++$+++ 12658 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that, even as -- in -- one could ensure that the spouse would honor the other person's wishes. I think this case is here to give some substance to the recognition in Matlock of the ability of the cotenant to consent, in his or her own right.
04-1067 +++$+++ 12659 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What --
04-1067 +++$+++ 12660 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is --
04-1067 +++$+++ 12661 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about the extent of the search? Can the wife say, "It's okay for you to come in, and you can look in my husband's top drawer"?
04-1067 +++$+++ 12662 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think, Your Honor, that would be a question of fact, under the circumstances, to see whether the husband has exhibited some exclusive use of that drawer or whether the facts would demonstrate that she puts socks in there for him, she puts --
04-1067 +++$+++ 12663 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, how does the --
04-1067 +++$+++ 12664 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- notes in there --
04-1067 +++$+++ 12665 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- how does the policeman --
04-1067 +++$+++ 12666 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- for him --
04-1067 +++$+++ 12667 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- so, how is the policeman supposed to know that?
04-1067 +++$+++ 12668 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think -- looking -- we measure what is reasonable on the part of the police by looking to what they know. And Rodriguez made very clear, one does -- a policeman doesn't simply accept every invitation to enter. If there's some ambiguity or some uncertainty, the policeman has a duty to inquire. And, I think, looking into the facts of this particular case is a good example. You have police who were called to the marital home of Mr. and Mrs. Randolph. It arose out of a domestic dispute, because Mr. Randolph had absconded with the couple's child. The officer -- this was a small town -- the officer knew Mr. Randolph, because Mr. Randolph was a local attorney. The officer knew that Ms. -- who the wife was. And he knew this was the couple's home. When he got there, in talking with the wife -- Mr. Randolph was off with the child, hasn't returned to the residence -- he learned that they had been having some problems, but, in looking at the two conversations that ensued, the policeman learned that, despite the problems, she was back, she was living there. There was no separation.
04-1067 +++$+++ 12669 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought she said she came to collect her belongings. That didn't sound like she's intending to stay very long.
04-1067 +++$+++ 12670 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ She did not -- she did not relay that to the officer. That came from Mr. Randolph, in his testimony at the suppression hearing. All --
04-1067 +++$+++ 12671 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But isn't it relevant what the status of the person is? Someone might not know -- the police might not know that someone on the premises is a temporary visitor.
04-1067 +++$+++ 12672 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor -- and I think that, looking at the tenor of the conversations, that is exactly what this officer ascertained. He knew that she was there, they had been living there, she was back, she had been on a visit. She did not tell him they were separated. She did not tell him she was --
04-1067 +++$+++ 12673 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ She called --
04-1067 +++$+++ 12674 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- only there --
04-1067 +++$+++ 12675 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the police, didn't she? She called the police to come.
04-1067 +++$+++ 12676 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ She called the police. And what we have, more importantly, is a factfinding by the trial court that she, in fact, had common authority to give consent to search.
04-1067 +++$+++ 12677 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And is that a -- is there any issue about that here?
04-1067 +++$+++ 12678 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
04-1067 +++$+++ 12679 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In other words, I thought the issue was whether his statement, in effect, vetoed whatever -- for Fourth Amendment purposes, whatever permission might have been given. But, as I -- I understood that there was no question -- what is it? -- - under Rodriguez, at least -- of her authority, facially to admit the police to the places that they went.
04-1067 +++$+++ 12680 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is our position, Your Honor. I think there has been some question raised by the Respondent, in his brief, trying to challenge both her authority over the actual bedroom, itself, which is an issue that wasn't raised below.
04-1067 +++$+++ 12681 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's what I thought.
04-1067 +++$+++ 12682 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And there had been an argument raised in the appellate court --
04-1067 +++$+++ 12683 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But we --
04-1067 +++$+++ 12684 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- about whether she had abandoned the property. But the trial --
04-1067 +++$+++ 12685 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But all of this is really getting pretty far from what I think is really the key question in the case. Matlock is decided. And Matlock said -- it referred to the risk that a joint occupant undertakes, the risk of inability to control access during one's absence. So, the scene in Matlock is: one occupant is there, the other is absent; and the one who was absent assumes the risk that the one who was there will exercise control. Matlock doesn't speak to the two people who are in disagreement situation.
04-1067 +++$+++ 12686 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Your Honor, as to not addressing the spectral situation. But I would disagree that Matlock simply only spoke to an absent nonconsenting defendant.
04-1067 +++$+++ 12687 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Well, what if we think it does? Because that's how I read it, too, that Matlock governs where one of the people is absent. And we have a situation that's different here. Now what rule do we look to?
04-1067 +++$+++ 12688 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think you look to whether she has common authority over the premises in his -- in her own right.
04-1067 +++$+++ 12689 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why?
04-1067 +++$+++ 12690 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Even when --
04-1067 +++$+++ 12691 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why?
04-1067 +++$+++ 12692 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ -- even when the husband is physically present and says no?
04-1067 +++$+++ 12693 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, because, first of all, you said, in Rodriguez, the Constitution does not guarantee that a search, only with the defendant's consent, will occur. Your Honors said that --
04-1067 +++$+++ 12694 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ But, do you --
04-1067 +++$+++ 12695 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- only a search that --
04-1067 +++$+++ 12696 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ -- do you --
04-1067 +++$+++ 12697 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- is unreasonable --
04-1067 +++$+++ 12698 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ -- think the officers had sufficient grounds to get a warrant here for a search?
04-1067 +++$+++ 12699 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They ultimately did, Your Honor, but that consideration of getting a warrant was also at play in Matlock and, I think, in Rodriguez. And the point is, if one has valid consent, you don't have to get a warrant. They --
04-1067 +++$+++ 12700 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ But that's --
04-1067 +++$+++ 12701 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but that's the --
04-1067 +++$+++ 12702 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ -- the issue. Is it valid consent when the co-owner, the husband, is there and says, "No, you don't"?
04-1067 +++$+++ 12703 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I think you -- we come back to the fact that he does not have a reasonable expectation of absolute or unequivocal control --
04-1067 +++$+++ 12704 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why --
04-1067 +++$+++ 12705 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I guess that --
04-1067 +++$+++ 12706 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why not? I --
04-1067 +++$+++ 12707 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that depends on what we say. I'm, frankly, still somewhat surprised at your answer to Justice O'Connor, indicating that it happens all the time where there are two occupants, and one expressly says, "You can't come in," and they do anyway. But leaving that aside, it seems to me that most of the considerations that would impel a decision in your favor can be answered under other doctrines. If there's cocaine that's being used and may be destroyed, there's exigent circumstances. I don't see the necessity for the rule that you propose.
04-1067 +++$+++ 12708 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think, Your Honor, its ability -- if we're going to have consent, and if we're going to have a third-party-consent rule, then this is an issue that is going to have to be resolved.
04-1067 +++$+++ 12709 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're talking about --
04-1067 +++$+++ 12710 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm --
04-1067 +++$+++ 12711 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- reasonable expectations, I suppose, here.
04-1067 +++$+++ 12712 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-1067 +++$+++ 12713 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why do you assume that it -- - that it is the reasonable expectation of two people who have -- who are living together in -- on -- in common premises, that, where one of them wants somebody to come in, and the other one does not want somebody to come in, the person may come in? I would think that the normal assumption is just the opposite, that, where one wants somebody excluded, that person will be excluded.
04-1067 +++$+++ 12714 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think, in the Morning case that was cited in the brief, they realized one can always hope that the other will accede to one's wishes. But, this is the dynamics of personal behavior, and I think it comes from an almost subliminal assertion that the person who was saying no does, in fact, have absolute authority over --
04-1067 +++$+++ 12715 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In --
04-1067 +++$+++ 12716 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that shared --
04-1067 +++$+++ 12717 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In Matlock --
04-1067 +++$+++ 12718 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- premises. And that's --
04-1067 +++$+++ 12719 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In Matlock --
04-1067 +++$+++ 12720 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's out of sync --
04-1067 +++$+++ 12721 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In Matlock, did the -- did the absent person say no?
04-1067 +++$+++ 12722 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He was -- it -- he was silent. He had been arrested --
04-1067 +++$+++ 12723 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, you --
04-1067 +++$+++ 12724 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- on the scene --
04-1067 +++$+++ 12725 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you don't even have, in Matlock, a situation where you know that one of the parties didn't want entry. You don't know that. You -- there was one party there, and that party said, "Okay, come in." And the other party said, "Well, if I had been consulted, I would have said no," or whatever. But --
04-1067 +++$+++ 12726 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in -- and even in that situation, Matlock, the reference to the absent nonconsenting defendant was in a paragraph where the court had talked about how it had reserved, in Amos -- the Amos case -- the question of whether a wife could waive her husband's rights. And then you had decided the Frazier case, and that was what was described as the nonconsenting absent codefendant in which two cousins had shared the use of a duffle bag, and the defendant had left the duffle bag with the cousin. The cousin and his mother gave consent for the search. And it simply was not that the defendant was not present, but this Court found there was mutual use of that bag that gave the cousin the authority to consent. And then, the Court readily rejected Frazier's arguments that, "Well, the cousin could only use one compartment of the duffle bag." And you said you wouldn't get into such metaphysical distinctions.
04-1067 +++$+++ 12727 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Ms. --
04-1067 +++$+++ 12728 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
04-1067 +++$+++ 12729 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- Ms. Smith, may I -- your time is getting short, and I want to get clear on one thing. As I understand it, your argument is not an argument that the husband, in this case, lost an expectation of privacy. You are not arguing that he has no right to object. Am I correct on that?
04-1067 +++$+++ 12730 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think, Your Honor, we had called it a --
04-1067 +++$+++ 12731 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay, and let me --
04-1067 +++$+++ 12732 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a reduced --
04-1067 +++$+++ 12733 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If that is correct, then your whole argument rests on the fact that, although he has, and may assert, an expectation of privacy, that is irrelevant to the right of his wife to let people, including the police, come into an area which is under her control, as well as his. Is that it?
04-1067 +++$+++ 12734 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor --
04-1067 +++$+++ 12735 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
04-1067 +++$+++ 12736 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that is. And I think, looking at Justice Stevens' dissent in Rodriguez, there is that recognition of: When you make the decision to share premises with another, you have lost the expectation of exclusive or absolute control --
04-1067 +++$+++ 12737 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But your expectation -- this is what I'm trying to get at -- your expectation is not what governs. You concede, as I understand it, that he still had an expectation, in the sense that he could assert a right of privacy, he can litigate this case, he has standing --
04-1067 +++$+++ 12738 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-1067 +++$+++ 12739 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- but that his expectation is irrelevant to the fact that the wife, in this case, we assume, had the right to admit them to an area which was under her control, as well as his. Is -- have I got it correct?
04-1067 +++$+++ 12740 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, I think so.
04-1067 +++$+++ 12741 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
04-1067 +++$+++ 12742 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that his -- his expectation is unreasonable. And we would urge the Court not to adopt that and enshrine that as the rule for fourth amendment, third-party searches. If there are no further questions, I'll save the remainder --
04-1067 +++$+++ 12743 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, you would distinguish -- in your answer to Justice Souter -- this is -- this is a lawyer. One room in the house is devoted -- is his office.
04-1067 +++$+++ 12744 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-1067 +++$+++ 12745 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Her permission wouldn't extend to that room, would it?
04-1067 +++$+++ 12746 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it would -- it would have presented a much closer question of -- and particularly given the protection of papers and the fact that you may have business papers in there with attorney-client privilege -- I think her authority to consent it would have presented a closer question, although it would still be something to look at under totality of circumstances. She might have operated as a paralegal. She might have been his secretary. She might have known where he stashed his cocaine under a particular file. But that's not the question we have in this case. We're talking about common areas of a marital home over which both have equal access and control. And we would urge this Court to recognize that she, with common authority over those premises, has the ability to admit police and give consent to a search, in her own right.
04-1067 +++$+++ 12747 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. Mr. Dreeben.
04-1067 +++$+++ 12749 +++$+++ FALSE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The law of consent searches is governed by a determination of what is reasonable for the police to do in a particular circumstance, and it starts from the premise that consent is not a disfavored species in the law, that cooperation with law enforcement is a good thing and should be encouraged. The right of the cotenant, in this case, to consent stems from her common authority, which is independent of his and allows her to serve valuable social interests, as well as interests that represent her own personal interest. Many of these cases arise not among couples who are harmonious, but among couples in which there is some degree of tension, and the spouse who consents in these situations has an independent interest in ensuring that she can call upon the protection of the law.
04-1067 +++$+++ 12750 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ But we --
04-1067 +++$+++ 12751 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was --
04-1067 +++$+++ 12752 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Go ahead.
04-1067 +++$+++ 12753 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I was curious, though, which way that fact cut. I can see the argument that the closer the relationship, the more reasonable it is to say that the one party more or less recognizes that their privacy interests are held hostage to the views of the other. It's when you get the disrupted relationship, or their adverse interests, that maybe the expectations of privacy, or the reasonableness of one acting as an agent of the other, becomes a little more strained.
04-1067 +++$+++ 12754 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Mr. Chief Justice, I don't think that the law in this area is founded on a notion of agency. It's founded on a notion of independent authority of each to grant access to the police, to cooperate with law enforcement with respect to premises over which authority is shared. And in a case like this, the wife has an independent interest in disassociating herself from criminal activity that is going on, on the premises.
04-1067 +++$+++ 12755 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But she can do that by advising the police, and then there's probable cause. Or, if the husband's there, there are probably exigent circumstances.
04-1067 +++$+++ 12756 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, there may well be other bases to allow law enforcement activity to go on, but that presupposes that her authority to consent is somehow qualified: If the police could obtain a warrant or some other doctrine, would it support the search? And this Court has twice rejected exactly that approach to the analysis of consent searches.
04-1067 +++$+++ 12757 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Dreeben, does this authority to let someone in, over the objection of the cohabitant, apply only to policemen, or is it -- is it also the case that -- I don't know, as a matter of, what, property law, or whatever? -- that when two people have common ownership of a piece of land or a house or whatever, and one of them says, "I don't want a certain party to come on," the tie always goes to the other party, who says, "I do want somebody to come on," is that -- is there any cases that establish that proposition? It seems to me an odd proposition. I would have thought the opposite.
04-1067 +++$+++ 12758 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the law of property, Justice Scalia, to the extent that it's relevant here, would allow any cotenant to license his or her interest --
04-1067 +++$+++ 12759 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ But we have not decided Fourth Amendment issues on the basis of the law of property, have we?
04-1067 +++$+++ 12760 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I quite agree, Justice --
04-1067 +++$+++ 12761 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Don't we --
04-1067 +++$+++ 12762 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- O'Connor.
04-1067 +++$+++ 12763 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ -- have to look at social understanding on right to privacy? And how is it that you can construe, in every instance, a right of a cotenant to override the express objections of the other cotenant, who's there, and says no? How can you say that's acceptable?
04-1067 +++$+++ 12764 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice O'Connor, I certainly do not think that there is any uniform social understanding that should drive the decision in this case, for two different reasons. First of all, I think, in many circumstances, two people who share property, and who disagree about whether a guest should be invited, will resolve it in a variety of different ways. Somebody might let in a commercial visitor, over the objection of a cotenant, or someone --
04-1067 +++$+++ 12765 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Well, that's possible, but you have a case here where the wife says, "Come in," and the husband is right there and says, "No, you can't."
04-1067 +++$+++ 12766 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I think that the other factor that the Court needs to consider in evaluating this is not just social expectations with respect to non-law-enforcement events and visitors, but this positive, affirmative social interest in encouraging cooperation with the law, which is something that she has the ability to do with respect to property over which she has common authority.
04-1067 +++$+++ 12767 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- well, you keep saying that, but that policy is -- can be vindicated by using doctrines other than consent. And you want us to -- I think you want us to say, I think we have to say, that there's a general social expectation that the person who wants entry overrides the person who doesn't.
04-1067 +++$+++ 12768 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-1067 +++$+++ 12769 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And I also agree with Justice Scalia, that social expectation may be, in part, measured by our cases on this subject. And I just don't see how, if it's against the interest of an occupant to allow entry, that that -- that that interest must, necessarily, be overridden.
04-1067 +++$+++ 12770 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that what the Court needs to do is look at the consent-search doctrine in relation to third-party consents, generally. Matlock makes quite clear that if the objecting -- potentially objecting party, the target of the search, does not voice an objection, then the third party has full authority to allow the search, even if they're --
04-1067 +++$+++ 12771 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Well, yes, but there's kind of an assumption there that if the cotenant is not there, sure, you'll let the tenant who is there call the shots.
04-1067 +++$+++ 12772 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that, on the facts of either Matlock or Rodriguez, that would be a particularly logical or reasonable assumption. In Matlock, you're dealing with a man who was arrested for bank robbery in the front lawn of his house, the police take him to a police car, put him in a police car, do not ask him for consent; instead, they go back and they ask the woman, with whom he is living at the house, for consent to search.
04-1067 +++$+++ 12773 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask --
04-1067 +++$+++ 12774 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Rodriguez is even more dramatic, because, in Rodriguez, the victim of a battery, Gail Fischer, seeks out the police and says, "I want you to arrest Rodriguez," and brings him to the -- to -- the police to the apartment, where they enter and arrest Rodriguez. Surely, if Rodriguez had been asked, or if Matlock had been asked, the presumption is, they would have objected.
04-1067 +++$+++ 12775 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask two questions? Seems to me you're -- if we're using social analogies in what happens, I imagine that it would make a difference if the person who wants to -- who was invited in by the wife, is larger or smaller than the husband. [Laughter.]
04-1067 +++$+++ 12776 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And I think he probably would not go in if he thought he was a -- could not do so -- [Laughter.]
04-1067 +++$+++ 12777 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- in his physical encounter. And the problem with your case here is, the police officer is always larger than the homeowner, and he always has the power to override any physical objection. So, I think that the -- the actual social situation will vary tremendously from different facts as to the fair -- and yet, we're looking for a rule that applies equally across the board --
04-1067 +++$+++ 12778 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1067 +++$+++ 12779 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- in this case.
04-1067 +++$+++ 12780 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At --
04-1067 +++$+++ 12781 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the second question I want you to address at the same time is, What if this was a suitcase that they both owned? They stopped in the airport. The wife says, "I don't want you to open it," and her husband says, "Go ahead and open it," or vice versa.
04-1067 +++$+++ 12782 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Stevens, the second one is the easier one. The same rule applies. Anyone who has common authority over the suitcase should be able to cooperate with law enforcement to vindicate both the social interest in cooperating with a law enforcement request and the interests of the person's who's making it. And I think that that's what Matlock is all about. Now, as for the attempt to mirror --
04-1067 +++$+++ 12783 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Matlock is the reasonable police -- well, go ahead. I shouldn't interrupt.
04-1067 +++$+++ 12784 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The attempt to transpose ordinary social understandings from a myriad of infinitely varied settings that do not involve law enforcement, I submit, will not correctly allow this Court to calibrate what it should be doing, which is balancing the individual interests in privacy against the social interests that affirmatively encourage and validate the use of consent. And I think what Matlock does, to put this case in context, is to illustrate that if the police had waited until Respondent had left his house to go to work, or to go to court, or to do anything else, or if he had stayed there and gone to sleep at night, then Matlock tells us that she would have full authority to allow the police into the house to conduct a search of common areas. And, for this Court to announce a rule that says, no, when the person is there on the scene and vocalizes an objection, which we can reasonably presume that he would have if he was given the opportunity to voice it, would mean that police simply have an incentive to find a different way to accomplish the same end. And I would submit that that does not give adequate --
04-1067 +++$+++ 12785 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The "different way," of course, would be to get a warrant.
04-1067 +++$+++ 12786 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ An option would be to get a warrant in cases where the police do have probable cause, but, as this Court recognized in Schneckloth versus Bustamonte, the courts -- the officers will not always have probable cause.
04-1067 +++$+++ 12787 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would they, on -- in -- on these facts -- I thought not, but perhaps I was wrong -- the -- when the police come to the house, they don't suspect anything about cocaine. Wife then accuses husband of being a cocaine user. So, that's the first information the police have. Could they get a warrant, just on her say-so? In fact, they got the straw that had the cocaine residue on it. They went to the magistrate with that straw, and he gave them a warrant. But if they had nothing but the wife's accusation, "He -- he's a cocaine user," would that amount to probable cause?
04-1067 +++$+++ 12788 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it clearly would, Justice Ginsburg. And the facts in this --
04-1067 +++$+++ 12789 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ It would, or would not?
04-1067 +++$+++ 12790 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It would?
04-1067 +++$+++ 12791 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would amount to probable cause if the wife, who has -- she's in a position where she would know what's going on in the house, what kind of activity is going on in the house, she is a presumptively reliable citizen providing information to the police, and the fact --
04-1067 +++$+++ 12792 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All she said is, "He's a cocaine user." Does that -- does that -- does that give probable cause to believe that there are -- you know, that there's contraband on the premises or --
04-1067 +++$+++ 12793 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's not all she said, Justice Scalia.
04-1067 +++$+++ 12794 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh.
04-1067 +++$+++ 12795 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What she said was that there were items of drug evidence --
04-1067 +++$+++ 12796 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1067 +++$+++ 12797 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in the house. And if you look at the warrant that the officers obtained, it more clearly elaborates that she said there were drugs and paraphernalia. But, for the Court's purposes, this case is virtually identical to Illinois versus McArthur with respect to the probable cause. You have a wife and a husband who are in a domestic dispute, and the wife comes out, in Illinois versus McArthur, and tells the officers, you know, "He's got drugs inside there." And the Court was unanimous, I believe, on the point that that furnished probable cause. But what is different from Illinois versus McArthur, and this case, is that the police officers have the consent of someone who reasonably appears to them to have common authority, someone who's living in the marital home, someone who is in a position to know what's going on and exercise her own independent authority. And for this Court to say, "Well, there are alternatives" -- you know, the police could pull Respondent out of the house and quarantine it while they go get a warrant, or the police could do other investigation, or they could rely on exigent circumstances -- what that does is treats her consent as worth nothing. It reduces her --
04-1067 +++$+++ 12798 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Well, not nothing, because we have cases that have said: If the co-inhabitant is not there, he relinquishes whatever right he had to object. But if the co-inhabitant is there, and says no, what's the matter with giving effect to that?
04-1067 +++$+++ 12799 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it's very odd to say that, in Matlock, the right was relinquished, when Matlock was arrested and taken to a police car and was never asked for consent, or that Rodriguez relinquished his right by falling asleep in his own apartment. What really -- I would qualify my statement, though, in response to your comment, Justice O'Connor. It's not that it treats it as nothing. It would treat her consent as 100 percent valid when he's asleep or absent, no matter how much we know he would object, and it would treat it as zero when he's on the scene and vocalizes an objection. And I think that that would protect Fourth Amendment rights only by happenstance, or, worse, it would simply be an invitation to the --
04-1067 +++$+++ 12800 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Well, but it's by happenstance that the police find the wife in the house. I mean, it's six of one, half a dozen of the other. It's a happenstance.
04-1067 +++$+++ 12801 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in this case, as in many other cases involving this kind of potential incident, the wife called the police to the scene. So, there was a reason for them to be on the scene. It was a perfectly valid investigatory step. And once they acquired the information relating to drugs on the premises, and had the authority of someone who's in charge of the premises, I submit that the police should be able to conduct the search as a reasonable matter under the Fourth Amendment, just as they would if Respondent had been asleep or if Respondent had said, "Well, I have to go now. Am I free to go?" and the police said that, "You are." And I don't think that it always would be an advantage for the nonconsenting tenant, somebody like Mr. Randolph, to insist on the police getting a warrant or conducting a probable-cause arrest. If he's arrested, he's taken down to the station, he has a search incident to arrest, he may not get a hearing for 48 hours. If the police do have to get a warrant, they are entitled to search anywhere and everywhere in the premises; whereas, in this case, one of Respondent's main claims is that she wasn't credible. Well, if she wasn't credible, and she had led the police upstairs, and the police had found nothing, that might have been the end of the whole incident. And I think that it's because of the socially valuable function of efficiently resolving accusations, potentially dueling accusations of criminal conduct that consent searches can facilitate, that this Court has said that consent searches are a positive social good and should be encouraged, rather than discouraged.
04-1067 +++$+++ 12802 +++$+++ TRUE +++$+++ JUSTICE THOMAS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Dreeben, is it -- is this case materially different if she simply ran upstairs, grabbed the straw, brought it down, and handed it to the police officer? It's, in effect, the same thing, isn't it?
04-1067 +++$+++ 12803 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is, in effect, the same thing. And I think that, had that happened, there would have been no question that, assuming that the police reasonably believed that she had authority to do it, and possibly even if they didn't, the contraband would have come into the hands of law enforcement, and there is really no reason, or doctrine under the Fourth Amendment, to deny it.
04-1067 +++$+++ 12804 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You want us to take the position that there's no legal difference between, (a) entering a home and taking something, and, (b) receiving it on the outside?
04-1067 +++$+++ 12805 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that the difference, when you receive something with the consent of someone who has the authority to exercise control over it, is a question of whether she leads the police upstairs, or whether she brings the item downstairs. And, for Fourth Amendment purposes, I don't see a difference. Thank you.
04-1067 +++$+++ 12806 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Dreeben. Mr. Goldstein.
04-1067 +++$+++ 12808 +++$+++ FALSE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The Court should hold that it is not reasonable for officers to conduct a consent search when a person with an equivalent interest in the premises expressly objects.
04-1067 +++$+++ 12809 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about the telephone call between a husband and wife, and the wife tells the police, "Listen in on this call"? She's consented to the monitoring of the conversation, the husband has not. Maybe he even begins the call by saying, "I -- don't let anybody else listen to this." It's clear that that is admissible, isn't it?
04-1067 +++$+++ 12810 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is, Mr. Chief Justice, although not on the theory of third-party consent. The analog to your hypothetical, which is this Court's decision in Lopez, is Justice Thomas' reference to Coolidge versus New Hampshire -- to the New Hampshire case. And what happens there is, this -- Mrs. Randolph could take the cocaine and give it to the officer. She was participating in giving an item to them. It is not the same, I think, when she authorizes the police to conduct a generalized search of the premises. It would be as if --
04-1067 +++$+++ 12811 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ She's consenting. It's an intrusion, in the one case, on the conversation; in the other case, on the home. In the telephone case, it's recognized, in the law, the consent of one party subjects the other to having the conversation monitored. In this case, the consent of one party subjects the other party to the search.
04-1067 +++$+++ 12812 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- yes, Mr. Chief Justice. I do think that Lopez and White, in that line of cases, established that other things that people do consent to can expose us to intrusions on our property. What I think, however, is, it doesn't follow that she can authorize the -- them to conduct a generalized search of the premises. It's as if she were saying, "You can listen in on" --
04-1067 +++$+++ 12813 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well --
04-1067 +++$+++ 12814 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- "all the phone calls" --
04-1067 +++$+++ 12815 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Excuse me.
04-1067 +++$+++ 12816 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- "in the house."
04-1067 +++$+++ 12817 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It was -- it was the -- it was a search only of premises with respect to which she had, supposedly, common rights. I mean, we take the case on that assumption.
04-1067 +++$+++ 12818 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You do --
04-1067 +++$+++ 12819 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If --
04-1067 +++$+++ 12820 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Justice Souter.
04-1067 +++$+++ 12821 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If she and her husband, you know -- if she had a right to be in only two rooms, she couldn't authorize the search of the whole house, right?
04-1067 +++$+++ 12822 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is --
04-1067 +++$+++ 12823 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-1067 +++$+++ 12824 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- correct. But, Justice Souter, I think the thing that is important -- and I want to get to your line of questioning about exactly what the nature of the State's argument is -- is that he had a distinct individual right to privacy at the core of the home, as opposed to, for example, information privacy.
04-1067 +++$+++ 12825 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right, then he --
04-1067 +++$+++ 12826 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that --
04-1067 +++$+++ 12827 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- if he --
04-1067 +++$+++ 12828 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- begs the question -- it begs the question to say "it's a distinct individual right to privacy." It's a little academic to talk about his individual right to privacy when he's sharing the home with someone else.
04-1067 +++$+++ 12829 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, that's why I finished off on that. Let me just focus on the important part of my statement. And that is, we are talking about a search of the home, at the core of the Fourth Amendment. This Court's doctrines are quite different about situations in which you share information with third parties. Let me step back and do the case before Lopez, and then explain how it was extended to Lopez. Cases like White say, "If you give information to someone else, you -- they can give it to the police without conducting a search of you." This is a very different situation. The police are clearly conducting a search of a premises that I think, Justice Souter, it has to be agreed, he has a reasonable expectation of privacy with respect to. Now, Justice Souter, it is absolutely right that there are instances in which people have expectations of privacy, and yet searches occur, notwithstanding those. And there is an argument to be made here that says, "Look, he has a reasonable expectation of privacy, but the police came in for a different reason." That would be true, for example, if there was a warrant; they would come in, notwithstanding his reasonable expectation. That would be true if there were exigent circumstances. But the theory of consent is very different. Schneckloth, Zap, all of the Court's precedents --
04-1067 +++$+++ 12830 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it -- let me make sure I understand where you're going. We agree that he had a reason -- everybody agrees, I guess, that he has a reasonable expectation. He can -- he can raise his Fourth Amendment claim. Your argument is that, even though we get past the reasonable expectation, there's a second reasonableness question, and that is, Is the search, itself, reasonable?
04-1067 +++$+++ 12831 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Good guess.
04-1067 +++$+++ 12832 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And that's the focus of your argument --
04-1067 +++$+++ 12833 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly --
04-1067 +++$+++ 12834 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- correct?
04-1067 +++$+++ 12835 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- right.
04-1067 +++$+++ 12836 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-1067 +++$+++ 12837 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I do think it's important, of course, this Court's precedents have often said that the degree of the expectation informs the reasonableness of the search. A consent --
04-1067 +++$+++ 12838 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-1067 +++$+++ 12839 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- search is reasonable. Reasonableness, or course, is a balance --
04-1067 +++$+++ 12840 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. Well, I -- the words that keep going around in my mind -- it's her house, too, isn't it?
04-1067 +++$+++ 12841 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1067 +++$+++ 12842 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, she wants the policeman in. So, why does he have more of a right to keep the policeman out than she has to have the policeman in?
04-1067 +++$+++ 12843 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think everybody makes their --
04-1067 +++$+++ 12844 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And vice versa.
04-1067 +++$+++ 12845 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I think that --
04-1067 +++$+++ 12846 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right.
04-1067 +++$+++ 12847 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that's the point -- [Laughter.]
04-1067 +++$+++ 12848 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- is that -- that everybody makes some -- there are two things.
04-1067 +++$+++ 12849 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Everybody makes some sacrifices.
04-1067 +++$+++ 12850 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
04-1067 +++$+++ 12851 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right --
04-1067 +++$+++ 12852 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- right.
04-1067 +++$+++ 12853 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- let's think --
04-1067 +++$+++ 12854 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And so, he --
04-1067 +++$+++ 12855 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- of the need for this, because it's the other thing that's on my mind. The two words that came into my mind are "spousal abuse." All right? I would say maybe there's a pretty good need for this. The husband's beating her up. And there isn't evidence of that, but she's sitting in the kitchen table, and the neighbors hear something odd, and they call the police. "We'd better look into it." They come to the door. She says, "Um, hmmm, oh, I'd like, Officer, for you to just come upstairs to my bedroom for a minute." Is there any neighbor, friend, or policeman, in those circumstances, who wouldn't go?
04-1067 +++$+++ 12856 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, because she's not authorizing a search -- she wants them to come in and talk to her, wherever, in the house -- that might be a different case. The two words --
04-1067 +++$+++ 12857 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Oh, no. It's the question of the rule. I haven't seen anything on your side that would advocate a rule that would not prevent the many, many, many, I believe -- I am not an expert -- ambiguous cases of domestic spousal abuse from being investigated by the policeman. And maybe you can tell me you've looked into it empirically and I'm wrong, and that's why I'm bringing it up.
04-1067 +++$+++ 12858 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Okay. I have, and I can. Since 1974, when this Court decided Matlock, the Federal and State courts, combined, have considered this question. And so, there was a finding of evidence, and it led to a suppression hearing. That's the best that I can do. Fifteen times, all the Federal and State courts, once every two years. It is the case that in that -- in -- last year alone, there were 200,000 domestic disputes that were reported. But that's just the city of Chicago. What we're considering here is the situation in which there is no real need for the police to --
04-1067 +++$+++ 12859 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, no, but -- no, I'm not getting your answer. Are you telling me that it is the law in Chicago, for example, that if a policeman responds to a call, a call of -- it's ambiguous -- what it says is, "An anonymous caller said there's an odd situation next door. Will you check out 2355 Maple Street?" He goes there. The wife looks a little oddly at him, but they're sitting at the table, and she says, "Officer, I'd like you to come upstairs with me." The husband says no. Are you saying that the law is clear in Chicago that the policeman can't do it?
04-1067 +++$+++ 12860 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. What I'm --
04-1067 +++$+++ 12861 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. Where --
04-1067 +++$+++ 12862 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- saying is --
04-1067 +++$+++ 12863 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- is it clear that the policeman cannot do it?
04-1067 +++$+++ 12864 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, the -- it is an unresolved question of --
04-1067 +++$+++ 12865 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Fine.
04-1067 +++$+++ 12866 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- this Court. It's --
04-1067 +++$+++ 12867 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's what --
04-1067 +++$+++ 12868 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- equally divided --
04-1067 +++$+++ 12869 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- I thought it was not clear. And, therefore, what I'm asking you for is -- if your rule --
04-1067 +++$+++ 12870 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1067 +++$+++ 12871 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- is the law --
04-1067 +++$+++ 12872 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1067 +++$+++ 12873 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- there are 200,000 cases a year in Chicago, alone. I think that there might be many ambiguous cases. So, you relieve me of my concern that if you win this case, in those ambiguous situations, where the wife wants the policeman in, and she's afraid to tell him why, until she gets him up to the room -- she wants him in -- and he, now under your rule, as far as I can see, could not go in. And I'm telling you, quite frankly, that's what bothers me a lot.
04-1067 +++$+++ 12874 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right. Let me answer this on several different levels. First, there is no serious argument that we interfere with investigating abuse claims. The conversation can happen. It may not happen, arguably, in a place that he has a right to privacy, but it can happen outside. It happens outside all the time. If there is any suggestion that a reasonable officer would believe that there was an ongoing crime, there was abuse going on right then, then it's clear that exigent circumstances would authorize the --
04-1067 +++$+++ 12875 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There aren't exigent circumstances. In the case I'm thinking of, I'm thinking of what I call "ambiguity," and there are many such cases, I believe, of spousal abuse, where the wife is intimidated. Now, maybe I'm wrong on my facts, but those are the cases I'm worried about.
04-1067 +++$+++ 12876 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, I am not an expert in spousal abuse; and so, I'm not -- which I think is a very serious issue. I do know one thing about my rule, and that is that, under our rule, and under the rule that the Georgia Supreme Court articulated, they are allowed to speak with her, including speaking to her outside. It's true, there may be some sacrifice. And you have identified a sacrifice. And that is, she can't take them into a room in which he has a constitutional expectation of privacy. I will concede that if he says, "I don't want you in the bedroom," that will be a sacrifice. But what I am saying is that there is no serious argument that they can't have the conversation in a place where she feels secure. That's on the porch, that's in a police car. If she says, "I need you to come up," and there's been abuse, then what would have happened in this case -- let me explain what happened in this case. The officers asked Mr. Randolph first. He said no. They found out -- had found out from her that there was drug paraphernalia on the premises. What they had to do in order to conduct this search -- if they wanted to search, rather than having her bring the materials out -- is to pick up the phone and get a telephonic warrant, which would have taken less than 5 minutes. The real reason I bring to your attention the 200,000 domestic disturbances is that what you should be concerned about, I think, is not the 15 cases, which is not a serious intrusion on law enforcement interests over 30 years, but it's the many times in which our family relationships ebb and flow. We are concerned here with the person -- the Fourth Amendment is -- it's not the person who has the drugs or the abuser. Consent searches involve a situation in which the police come to the door, and they say, "Can we search?" Because they do as much as they are permitted to do. And the person just says, "Sure," perhaps completely ignorant of her rights. There's no reason to believe anything is going on. And what the State's position is, is that, despite the fact that this is the home, and that the core of the constitutional right to privacy in the text of the Fourth Amendment is that the only thing he can do to be secure in the language of the Constitution is not live with someone else. Remember, the theory --
04-1067 +++$+++ 12877 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, all --
04-1067 +++$+++ 12878 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you're --
04-1067 +++$+++ 12879 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- reflects is the -- -
04-1067 +++$+++ 12880 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Go on.
04-1067 +++$+++ 12881 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I was just going to say, it just reflects the expectation of privacy. And when you do live with someone else, you compromise your individual privacy interest to that extent. We know that you compromise it to the extent that if you happen not to be there, and that person says, "Sure, come on in and search," that's going to bind you, as well. Why is it -- why do you not compromise the expectation to the extent of giving the other person the right to consent?
04-1067 +++$+++ 12882 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, I do think you've put your finger on it. And I just want to say, Justice Souter, that I do think that the other side's argument inevitably does revolve around this notion of an expectation of privacy. And, Mr. Chief Justice, I think the expectation is -- and this is what the Court said in Minnesota versus Carter -- that, while it's technically possible that the people -- Minnesota versus Olson, I'm sorry -- the people that we live with will admit others over our objection, our expectation about what -- about what will happen, our reasonable expectation, is different. And I also want to take --
04-1067 +++$+++ 12883 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but Olson was a standing case. Olson was not confronting this situation. In Olson, the police simply went in without a warrant. And the argument was made that this person was not the normal inhabitant of the -- what was he? A houseguest or something of the sort. And the only issue that Olson addressed was his right to raise a Fourth Amendment claim. It did not respond to the issue that you are raising, which is the reasonable extent of search.
04-1067 +++$+++ 12884 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, that's why I, sort of, paused and came to you. And that is, I do think that the other side's argument -- I want to say two things. One is that it inevitably reduces to the idea that we have a lessened expectation of --
04-1067 +++$+++ 12885 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't --
04-1067 +++$+++ 12886 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- privacy --
04-1067 +++$+++ 12887 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't see that --
04-1067 +++$+++ 12888 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
04-1067 +++$+++ 12889 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- at all.
04-1067 +++$+++ 12890 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1067 +++$+++ 12891 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ They concede -- the only expectation of privacy you've got to have for Fourth Amendment purposes in order to raise a claim is a minimal one -- they concede that the -- that this individual has an expectation of privacy sufficient to raise a Fourth Amendment claim.
04-1067 +++$+++ 12892 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-1067 +++$+++ 12893 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Their argument is that, although he can raise it, the rights, however they may be derived on the part of his wife, allowed her to admit the police -- in effect, thwarting his expectations. Your argument, as I understand it, is that when the police search with that kind of permission, over his objection, it's not a reasonable search. Isn't that the way to structure the issue?
04-1067 +++$+++ 12894 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, I think it is. I will only say, in my defense, that their brief articulates it in the manner that I was describing it, I think, with the Chief Justice. But let me --
04-1067 +++$+++ 12895 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That --
04-1067 +++$+++ 12896 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- let me --
04-1067 +++$+++ 12897 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- I -- I agree with you.
04-1067 +++$+++ 12898 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. All right.
04-1067 +++$+++ 12899 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There is this talk about lessened --
04-1067 +++$+++ 12900 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1067 +++$+++ 12901 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- expectation, and I -- I think, ultimately, that's irrelevant.
04-1067 +++$+++ 12902 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right. Let me look at it through the other lens. And that is from the perspective of a reasonable police officer. I think there are two points to make. The first is, I -- the common ground between the sides in the case is, you look at it from the perspective of the person who arrives at the house, and you ask what is reasonable. And if someone arrives at the house, it is a different matter entirely if, as in Matlock or in Rodriguez, someone says, "Come on in," and they -- you believe they have authority over the premises, versus you come to the house and someone with authority over the premises says, "Come on in," and the other person says, "No, stay out."
04-1067 +++$+++ 12903 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay. Now what's your --
04-1067 +++$+++ 12904 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's not a fair reading of Rodriguez. There, it was, "Come on in, he's asleep." It was quite clear that if he were awake, he was going to say, "Don't come in."
04-1067 +++$+++ 12905 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, the Government has argued successfully in this Court that we don't make any assumptions about whether people will consent or not. There are innumerable cases in the lower courts --
04-1067 +++$+++ 12906 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, maybe we don't, but isn't there -- isn't the -- isn't Mr. Dreeben's argument fair that no one in his right mind would have expected Matlock to agree to this? It is clear that Matlock, had he known what was going on -- and he may have; I don't know -- would have objected? So that if we accept your argument that the presence of the person there expressing an objection is what makes the difference, then Matlock and Rodriguez become almost silly cases. They are -- they are -- they're cases that rest upon an assumption that is clearly contrary to fact.
04-1067 +++$+++ 12907 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Souter. And that is, the Government has argued, and this Court has accepted, again -- and this is a different point; and that is, you have to have a clear line for police officers that is administrable. And the line that is reflected in Matlock and Rodriguez is: If you get consent to come into the house from someone who has the common authority to do so, that will be sufficient, but that doesn't mean that if some -- and so, you don't have to go around and -- finding other people and asking other people. It's just as if you showed up at a house, and you were invited in. You wouldn't say, "Well, let me check with everybody else" --
04-1067 +++$+++ 12908 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Sure, but --
04-1067 +++$+++ 12909 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- "who lives here."
04-1067 +++$+++ 12910 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- an equally clear line would simply be that, if the area to be searched is one of common tenancy or occupation or whatnot, the only consent that will suffice will be the consent of the person against whom you expect to use any evidence found. Easy clear line.
04-1067 +++$+++ 12911 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's true, Justice Souter, there are a lot of possible clear lines. What I'm describing to you is why the difference between Matlock and this case is one in kind, and that is that Matlock, I think, reflects an administrable rule, and that is, if you do have permission from someone who has the authority to admit you, you don't have to go ask anybody else.
04-1067 +++$+++ 12912 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-1067 +++$+++ 12913 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that --
04-1067 +++$+++ 12914 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But an equally administrable rule here is that, even though the person you suspect objects, you can still go in, if a person with authority otherwise says you can. Equally clear rule, and it has one advantage: It does not turn Matlock and Rodriguez into silly cases.
04-1067 +++$+++ 12915 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, I don't think they're silly cases. I think that it is an important rule that the police show up and they are able to rely -- if they only hear from one person, they're able to rely on that person. I don't -- the -- - I'm not claiming that our rule has great administrative advantages over the other side's. What I'm saying is that it is not necessary to sacrifice the individual's privacy who lives in the house -- as you say, has an expectation of privacy. And so, let me return --
04-1067 +++$+++ 12916 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ An expectation of privacy. I have a lingering question here I'd like to get your view on. I don't know what the expectation is, is my problem. If I think of social -- I've never been in a situation, frankly, where one person said, "Stay out," and the other said, "Come in." So, I don't know what I'd do. If I imagine myself in a normal social situation, I think probably, if I am the typical person, which may or may not be, I -- [Laughter.]
04-1067 +++$+++ 12917 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- I think I'd say, "Well, you know, I don't want to have anything to do with this." If it's a dinner party, forget it. But if I'm in a situation such as the police might be involved in, where I think there is some danger, there is something wrong in the house, there's something odd about it, I don't think the average person would just say, "I'm going away." I think the average person either would come in, or he'd say, "I'll come in for a while. I'm going to call the police," or they're -- you just wouldn't have that reaction, "I want nothing to do with it." That's the reaction, you know -- that's a bad reaction, when you want nothing to do with a dangerous situation. So, I think, in that situation, the normal reaction would be, "I'm going in," or, "I'm going to get some help," or, "I'm going to get a friend," or, "I'm going to call the police." So, I don't know you do have expectations of that kind, in those situations, though you might with a dinner party.
04-1067 +++$+++ 12918 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, I think that's why it's important that our rule is not that the police should go away. We call for a balance here, and --
04-1067 +++$+++ 12919 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But I want you to address the question of how the legal category of "reasonable expectation of privacy" fits in with what I just said, where I'm assuming, in some social situations, you do think you'd be left alone; but, in the typical situation, stretching well beyond, but certainly including, situations of danger where the police might be involved, you wouldn't have an expectation that you will be left alone. I want to know how those facts, if they are facts -- and you can say they were not -- fit within the category called "reasonable expectation of privacy."
04-1067 +++$+++ 12920 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, the Court has precedent on this very point, and that is -- and, Justice Souter, he is asking about reasonable expectations of privacy -- Minnesota versus Olson. The Court considered this and said the very reason that person had standing and could -- had a Fourth Amendment right is because they did have a reasonable expectation of privacy in the premises, that, even though they had no property rights to keep any -- this is the overnight guest -- had no property rights to keep anybody out at all, their expectation -- their reasonable expectation of privacy for Fourth Amendment purposes -- is that if somebody wanted to come in, to which they objected, that objection would be honored. Now, I don't want to lose sight of the fact that our position is the balance; and that is, we don't tell the police to go away. We say, "Look, if she tells you that there's contraband in the house, she can bring it out." That's the Coolidge case. And I do think, Justice Thomas, that there is a difference in kind, not degree, in giving something to someone and then having -- versus having a uncabined search of a house. The complaint --
04-1067 +++$+++ 12921 +++$+++ TRUE +++$+++ JUSTICE THOMAS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The -- but this was not an uncabined search. That's my problem. What you're -- what you're -- the bottom, you're saying to us, is that it's not unreasonable -- an unreasonable search if she went upstairs and brought the straw down, right?
04-1067 +++$+++ 12922 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, because that's not a search.
04-1067 +++$+++ 12923 +++$+++ TRUE +++$+++ JUSTICE THOMAS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. But you're saying it is an unreasonable search for her to lead the police officer to the straw.
04-1067 +++$+++ 12924 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice --
04-1067 +++$+++ 12925 +++$+++ TRUE +++$+++ JUSTICE THOMAS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which is what she did.
04-1067 +++$+++ 12926 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Thomas, it's how it played out, because they stopped the search then, because she withdrew her consent. But what she authorized was something very different. She --
04-1067 +++$+++ 12927 +++$+++ TRUE +++$+++ JUSTICE THOMAS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But she withdrew it after he observed the straw.
04-1067 +++$+++ 12928 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Thomas, that's absolutely correct. My point, instead, is that what happened here, in terms of the consent, and what the State's rule of law would authorize, and what Matlock and Rodriguez authorize if they're extended to this point, is not, "Take me to the drugs," which is an interesting proposition, but, instead, "Go ahead and search the whole house." So, our point, Justice Breyer is, "Look, don't leave. Get a telephonic warrant. It takes 5 minutes. If you know there's something in the house, bring it out. If you have anything to -- any reason to believe there's ongoing criminality, seal the house."
04-1067 +++$+++ 12929 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now, any reason to believe --
04-1067 +++$+++ 12930 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of --
04-1067 +++$+++ 12931 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- but --
04-1067 +++$+++ 12932 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sorry.
04-1067 +++$+++ 12933 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- you can't enter without probable cause.
04-1067 +++$+++ 12934 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-1067 +++$+++ 12935 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And that's a -- with exigent circumstances.
04-1067 +++$+++ 12936 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1067 +++$+++ 12937 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Suppose you have suspicions of a domestic problem that's ongoing. It's short of probable cause, but you have reasonable suspicion. Does that alter the nonconsenting party's interest and elevate the consenting party's interest?
04-1067 +++$+++ 12938 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, I don't think that it does. Our view of the law is that the question is, When the property rights are -- and their -- their control over the property, I should say; I don't mean to invoke the common law -- when the control over the property is equivalent, then, in that tie, if you will, the Fourth Amendment controls. If -- - there are doctrines designed to protect against situations in which you have concerns about ongoing criminality and protecting people. But that's --
04-1067 +++$+++ 12939 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When you talk about that tie, your approach applies in the case -- a dormitory, you have a common room, there are ten rooms off of it, nine people say, "Sure, come on in and search," and the one person says, "No." That one person exercises a veto over a search of the common area?
04-1067 +++$+++ 12940 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, the straightforward rule that I have argued for today is that if you have an equivalent interest in the premises -- it is, of course, the State's rule that, if nine people object, Matlock says that any one of them can let them in, and an individual can override the objections of everybody else in the house. What I'm saying, I think, just to return to the basics, is, I do think --
04-1067 +++$+++ 12941 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- well, what is your answer --
04-1067 +++$+++ 12942 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry.
04-1067 +++$+++ 12943 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- to that case? Your case is that, if one out of ten who share the common room says to the police, "You may not come in," that controls?
04-1067 +++$+++ 12944 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that has to follow from our rule. It's true, we have articulated one broad rule that would allow the Fourth Amendment to control, but I think if we analogize to the social situation -- if you said to yourself, "What do you expect will happen if nine people that you live with want to let in someone and you're the only one who's going to object?" -- I think it would be perfectly reasonable to say to -- that individual expects the -- them to come in. Justice Souter, let me return -- I want to make sure I --
04-1067 +++$+++ 12945 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But the -- I -- you assume we got -- there goes the -- that -- there goes any bright line administrable rule, I guess. [Laughter.]
04-1067 +++$+++ 12946 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, I honestly don't think that's true. I think that Illinois versus Rodriguez, on this question, which is assessing the degree of the authority over the premises, does call for a "totality of the circumstances" inquiry. I also don't know that I fully answered your point, that we look at this question from the perspective of the officer and the reasonableness of the search. And let me just say that, in Matlock and in Rodriguez, the Court's analysis was that it's reasonable, because the person whose privacy is intruded on has assumed some risk. The Court does look to the privacy interests of the person who is ultimately the defendant. That's a -- an element of the reasonableness inquiry. And our point, fundamentally, is that it cannot be the case that when the framers enacted the Fourth Amendment so that you could live with other people and have a private space away from the Government, that you, merely by living with your family, assume the risk that your privacy will be lost. That assumption of the risk --
04-1067 +++$+++ 12947 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, can I just take the next step in my hypothetical? The wife and the two adult children who live in the home say, "Come on in," and the husband says, "No." What happens then?
04-1067 +++$+++ 12948 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ On our broadest rule, the husband would control, although it doesn't follow, from our -- that, to affirm the judgment, you have to say that, because I think you could say that, reasonably, the person realizes they would be outvoted. But I do think the children is an important point.
04-1067 +++$+++ 12949 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Reasonably, the person realizes he would be outvoted?
04-1067 +++$+++ 12950 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1067 +++$+++ 12951 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, it does go to his presumably objectively reasonable views of what nature of privacy he has.
04-1067 +++$+++ 12952 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. And what --
04-1067 +++$+++ 12953 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, if he thinks, "Look, I've been having a bad time with my wife. I think she's going to consent and let the police in if I'm not" -- then his objection shouldn't control?
04-1067 +++$+++ 12954 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, when -- I agree with you objectively. This Court didn't, for example, in Matlock and Rodriguez, look at the particular family dynamics at that time. It looks to broader social understandings. I did want to return to your "children" point. Remember -- and I think this is a vital point -- and that is, the Courts of Appeals uniformly conclude, after Matlock and Rodriguez, that children are residents, which is the inquiry in Illinois versus Rodriguez, and they can give consent to search a home. It necessarily follows that if you extend that rule, Matlock and Rodriguez, to this case, that children, because they have the authority to admit the police -- minor children, 12, 14, 15 -- can then authorize the search, notwithstanding the objection of the parents. Now, if everyone agrees, "That can't be right, it's the parents' home," that's because we are assessing --
04-1067 +++$+++ 12955 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What is the case that says that, that the child's invitation overrides the parents' objection?
04-1067 +++$+++ 12956 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, that question hasn't been confronted by any court we've checked. But what I -- what the Courts of Appeals have confronted repeatedly, and uniformly agree -- and it's in our brief -- is that children satisfy the Matlock and Rodriguez --
04-1067 +++$+++ 12957 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So --
04-1067 +++$+++ 12958 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- standard.
04-1067 +++$+++ 12959 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- would a mother-in-law. [Laughter.]
04-1067 +++$+++ 12960 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1067 +++$+++ 12961 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they don't have the same -- they don't have the same property interest as a spouse does, as a tenant in common or whatever. The child doesn't have that interest in the home.
04-1067 +++$+++ 12962 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, that's right, but, of course, that's not the inquiry under Matlock and Rodriguez. If we take your point, then we are definitely moving beyond Matlock and Rodriguez. We're going to have to look to more. And my point is that, if we do look to more than simply the fact that the officers have found someone, however ignorant, has the ability to consent in their own right, if we're going to assess the other factors, the rule should look -- the Court should look to what the ordinary social understandings and --
04-1067 +++$+++ 12963 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Goldstein, your time is almost up, but I want to know if you place any weight at all on the fact that the husband was the target in this case. The target said, "No," and the one who wasn't under suspicion said, "Yes." Does that make any difference?
04-1067 +++$+++ 12964 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- I do not believe, as a matter of doctrine, that it does. I do think, however, that it informs this Court's analysis of reasonableness, in the sense that the Court, in Schneckloth, said, "We are not going to allow consent to circumvent the requirements of getting a warrant." And it is the case -- we have to inescapably agree, I think, that this is simply a way of getting around the warrant requirement. They wanted to find out something about him. He had a privacy interest in the premises. He said, "No." The Constitution says, "You have somebody who's cooperating with you. Let them tell you what's going on in the house." And Illinois versus McArthur says, "Seal off the premises." In fact, Illinois versus McArthur is -- the very point of the Court in that case was that it's much better to seal the premises and get a warrant, which will define --
04-1067 +++$+++ 12965 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Was there anybody in that case who -- since I wrote it, I guess I'm supposed to know it in detail, but I don't -- [Laughter.]
04-1067 +++$+++ 12966 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- and I thought, was -- there was no one -- no consent there. There was nobody giving consent, was there?
04-1067 +++$+++ 12967 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, Justice --
04-1067 +++$+++ 12968 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Was there?
04-1067 +++$+++ 12969 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer --
04-1067 +++$+++ 12970 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'll go back and read it.
04-1067 +++$+++ 12971 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- she said, "I think you should" -- she said --
04-1067 +++$+++ 12972 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'll reread it. [Laughter.]
04-1067 +++$+++ 12973 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. She said, "I think you should go in there and get it."
04-1067 +++$+++ 12974 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Uh-huh.
04-1067 +++$+++ 12975 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, inescapably, what's going on, there are -- I think that this is not a case that follows, necessarily, from Matlock and Rodriguez. And there is a bright line to be drawn, and that is, you are going to have to not live with your family, which is precisely what the Fourth Amendment is about, in order not to assume the risk of the police coming in. The reasonableness determination is a balancing of law enforcement and privacy interests. The privacy interests are very high. The police can easily get a telephonic warrant or have the materials brought out to them. It is not necessary to take this case, when so rarely has it been that the police have needed to use this authority. If there are no further questions.
04-1067 +++$+++ 12976 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Goldstein. Ms. Smith, you have a minute and a half remaining.
04-1067 +++$+++ 12977 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No rebuttal, Your Honor.
04-1067 +++$+++ 12978 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The case is submitted.
04-1084 +++$+++ 12983 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument next in Gonzales versus O Centro Espirita Beneficiente Uniao Do Vegetal. Mr. Kneedler.
04-1084 +++$+++ 12985 +++$+++ FALSE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The Court of Appeals decision in this case carves out an exception to the categorical prohibition for the Controlled Substances Act in order to permit respondents to import, distribute, and use a Schedule 1 controlled substance. The Court of Appeals believed this exception was justified by the Religious Freedom Restoration Act in order to enable respondents to use hoasca tea, which contains dimethyltryptamine, or DMT, in the substance, for religious purposes. The court of appeals was wrong. RFRA carries forward the compelling-interest test, as set forth in prior Federal court decisions.
04-1084 +++$+++ 12986 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ May I address a preliminary inquiry that I have? Are we reviewing here the issuance of the injunction by the trial court?
04-1084 +++$+++ 12987 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, a preliminary injunction.
04-1084 +++$+++ 12988 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ And we have to find that, for the trial court to have issued it, it was an abuse of discretion?
04-1084 +++$+++ 12989 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, with respect to certain aspects of the preliminary injunction question, yes. For example, whether a preliminary injunction should -- is the proper remedy if all the other criteria are satisfied.
04-1084 +++$+++ 12990 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ You know --
04-1084 +++$+++ 12991 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
04-1084 +++$+++ 12992 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ -- the court found evidence in equipoise and so on and so forth, so I just wondered, at the bottom line, what our legal standard is here.
04-1084 +++$+++ 12993 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. We believe that the Court of Appeals erred -- or District Court and Court of Appeals erred, as a matter of law, in entering the injunction --
04-1084 +++$+++ 12994 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Abused its discretion.
04-1084 +++$+++ 12995 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, abused -- a court always abuses its discretion if it -- if it commits a legal error. So, that is basically our position here.
04-1084 +++$+++ 12996 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It seems to me your position is that you must -- we must give controlling determinative weight to the fact that it's listed in Schedule 1. And the respondents say you don't give it any weight at all, it's all on a case-by-case basis. Is there a middle ground that there -- which I think would allow you to prevail here -- that there is a presumption that there is a compelling governmental interest when it's in Schedule 1? It's a rebuttable presumption, but it's a presumption that, when it's in Schedule 1, it's a compelling interest.
04-1084 +++$+++ 12997 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1084 +++$+++ 12998 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The --
04-1084 +++$+++ 12999 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- first of all, our principal submission is that Congress's designation in Schedule 1 is sufficient unto itself. But we also do include a further submission that, if the Court didn't disagree with that, that Congress's -- Congress, in Schedule 1, has said that any mixture containing any amount of a listed hallucinogenic substance is barred. And there's no question that this substance contains that. But if the Court was going to look beyond that to the facts of this case, there's also no question in this case that respondents' use of the substance produces the very effects that led Congress to put the substance on Schedule 1. So, to allow the -- to allow the substance to be used would be in direct derogation of Congress's judgment. The disagreement, such as there is, goes not to the -- not to that question. And that's on page 214(a) of the joint appendix -- or the petition appendix. The District Court specifically found that those effects are produced. Respondents' argument in the lower courts was essentially that those effects shouldn't matter, or that those effects should be ignored. But we think that that's inconsistent with Congress's judgment. So, my point is, if you go beyond the text of the statute, it shouldn't be for anything more than to -- for the Court to assure itself that the effects that caused Congress to list the subject, in fact, occur, and --
04-1084 +++$+++ 13000 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Kneedler --
04-1084 +++$+++ 13001 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but part of the statute is Sherbert and Verner and the test that Congress says we have to apply to its acts here.
04-1084 +++$+++ 13002 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. But under -- the Act does say carry forward the prior Federal court decisions. But, prior to Smith, this Court, on a number of occasions, had recognized the compelling interest in uniform enforcement of important statutes that could not function under a system of individualized religious --
04-1084 +++$+++ 13003 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. --
04-1084 +++$+++ 13004 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- exemptions.
04-1084 +++$+++ 13005 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- Mr. Kneedler, I think everyone would concede that there is a compelling interest, governmental interest, to have the Controlled Substances Act on that level, yes. But then, Congress has passed another statute that says all laws shall be subject to RFRA -- shall be subject to RFRA. So, we can't just look at "Is there a compelling State interest for the controlled Substances Act?" in a vacuum. We have to take what was a later statute, RFRA, to which the Controlled Substances Act is made subject by Congress. And I thought the argument was: Is there a compelling State interest in that context? How can there be, given the situation with peyote and, "We're just like the Native American Church in that regard"?
04-1084 +++$+++ 13006 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the argument is not that the Controlled Substances Act is not subject to RFRA. It is subject to RFRA. But -- just as it was subject to the First Amendment's Free Exercise Clause -- and, in this Court's pre-Smith cases, in which the Court -- at least Congress understood the Court to have been applying a compelling-interest test, the Court was applying that compelling-interest test to particular statutes under which individualized religious exemptions would not be feasible, and held, as a categorical matter, that they were not required. The Social Security Act, the tax code, the laws against polygamy, the Sunday closing laws, all are -- all of those are ones in which the Court had previously concluded that individualized exceptions were not appropriate.
04-1084 +++$+++ 13007 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I would understand that if the Government had acted uniformly. But we do have two situations that seem to be like -- the peyote and this case. And if the Government must accommodate to one, why not to the other?
04-1084 +++$+++ 13008 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the peyote exception, Congress was acting under its distinct constitutionally recognized authority with respect to Indian tribes. The Indian Commerce Clause specifically authorizes Congress to legislate with respect to Indian tribes --
04-1084 +++$+++ 13009 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's --
04-1084 +++$+++ 13010 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- as --
04-1084 +++$+++ 13011 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it still shows -- whatever power they were -- they were proceeding under, it still shows that it's not all that important that nobody be able to use a substance banned by category 1. I mean --
04-1084 +++$+++ 13012 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I --
04-1084 +++$+++ 13013 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- whatever power it was under, it's a demonstration that you can make an exception without the sky falling.
04-1084 +++$+++ 13014 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I, in no way, think that Congress believed that by enacting the special provision for Indian tribes, it was thereby opening the Controlled Substances Act to individualized --
04-1084 +++$+++ 13015 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well --
04-1084 +++$+++ 13016 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- religious exceptions.
04-1084 +++$+++ 13017 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- maybe Congress didn't assume that. They probably didn't think about it. But what's wrong with the argument?
04-1084 +++$+++ 13018 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think what's wrong with the argument is that what Congress did with respect to Indian tribes was take a look at that distinct context and conclude that, for a variety of reasons -- and, particularly, respecting the autonomous authority of an independent Indian tribe to control its internal affairs this exception applies only to members of recognized Indian tribes -- that, in that context, balancing all of the relevant considerations -- not the sort of balance under RFRA --
04-1084 +++$+++ 13019 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it --
04-1084 +++$+++ 13020 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but balancing all the considerations under the -- its Indian power, concluded there was --
04-1084 +++$+++ 13021 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But Justice Scalia's point is, no matter what the legal theory, the evidence, historical evidence, seems to indicate that the sky didn't fall. And if it didn't fall for the larger number of Native Americans involved who use peyote, and the very small number using this drug, can't we, kind of, think that at least, "Well, maybe it's not all that compelling"?
04-1084 +++$+++ 13022 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But that was -- that was a specific judgment made by Congress itself, looking at --
04-1084 +++$+++ 13023 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, Mr. Kneedler, may I --
04-1084 +++$+++ 13024 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- all the factors.
04-1084 +++$+++ 13025 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- may I stop you --
04-1084 +++$+++ 13026 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1084 +++$+++ 13027 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- there? Because, correct me if I'm wrong, but it was my impression that the DEA was allowing an exemption for peyote use by the Native American Church before Congress passed the law.
04-1084 +++$+++ 13028 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that's correct, but that was understood at the -- at -- back in 1970, or back, actually, in '65, when that was first adopted, to have been consistent with Congress's original intent in passing the statute, and the Controlled Substances Act, which carried forward the schedules. But, in any event, Congress has now addressed the subject by statute, following the enactment of RFRA, following this Court's decision in Smith, and which has brought things into quite different focus.
04-1084 +++$+++ 13029 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if you take it that the Government was right -- before Congress passed the law, the Government was right to give the exemption to allow that ceremonial use of peyote, then I don't see how you get mileage from a congressional act that was passed later than Congress's is saying, "Executive, we agree with you, you did right." But it's not -- you -- I don't see how you can rely on the congressional statute when the Government was doing this even without a --
04-1084 +++$+++ 13030 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and --
04-1084 +++$+++ 13031 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- congressional statute.
04-1084 +++$+++ 13032 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the statute actually, you know, now gives some firm statutory basis for that exception, which may not really have existed so comfortably after this Court's decision in Smith. And there was, it's true, nothing specific in the statute before. The critical point, though, to bear in mind for the sort of claim that respondents are arguing for here is that it would turn over to 700 district judges a determination based on particular records, particular credibility determinations, the judgment as to whether --
04-1084 +++$+++ 13033 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but --
04-1084 +++$+++ 13034 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- an exception --
04-1084 +++$+++ 13035 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- isn't that exactly the -- what the Act does? That's --
04-1084 +++$+++ 13036 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No --
04-1084 +++$+++ 13037 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- why they passed it.
04-1084 +++$+++ 13038 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With all respect --
04-1084 +++$+++ 13039 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that's why we came out the other way in Smith, by the way.
04-1084 +++$+++ 13040 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But -- [Laughter.]
04-1084 +++$+++ 13041 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but even when Congress went back to pre-Smith, again Congress recognized that there are certain statutes in -- that serve a compelling interest that would be undermined by individualized determinations, and the Controlled --
04-1084 +++$+++ 13042 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Well, it didn't --
04-1084 +++$+++ 13043 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Substances Act --
04-1084 +++$+++ 13044 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ -- say that, did it? I mean, it did seem to indicate, after the passage of RFRA, courts are supposed to examine, in each case, whether there is a compelling State interest and whether it's closely enough related.
04-1084 +++$+++ 13045 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it -- but that was the test that the Court was applying, as Congress understood it, prior to Smith, in which, I repeat, the Court said there were certain statutes that categorical judgments could be made about. And the Controlled Substances Act is such a statute, as this Court recognized in Raich and in Oakland Cannabis --
04-1084 +++$+++ 13046 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I want you --
04-1084 +++$+++ 13047 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- where the Court --
04-1084 +++$+++ 13048 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- to stay on this point, because it's important, but if this were a Schedule 2 substance, would your argument be the same?
04-1084 +++$+++ 13049 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our argument would be the same, but for an additional reason there, and that is that even where Congress has -- or even where a substance may be distributed and used, it is only for medical purposes, which is in furtherance of, not in derogation of, the health and safety purposes of the statute. And even then, it is done to very strict -- pursuant to very strict controls that are really incompatible with sacramental use of a substance. There is a requirement of prescription, or dispensing by a physician under physician control, with recordkeeping -- identifying the dosage, the amount of the sacrament -- recordkeeping of the person who takes it. There is -- there is an incompatibility and potential entanglement problem in how to -- in trying to apply a system like that, even under Schedule 2. But under Schedule 1, what you have is contraband, as this Court said --
04-1084 +++$+++ 13050 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But suppose we --
04-1084 +++$+++ 13051 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in Raich.
04-1084 +++$+++ 13052 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- I grant you that administrative considerations are relevant. Of course they're relevant. But that's far from saying they're determinative. And then we're back to what Justice Souter said, absolutely relevant in deciding the compelling interest, but the fact that peyote seems to have been administered without the sky falling in suggests that, here, they're not determinative. That's all.
04-1084 +++$+++ 13053 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if I could go back to the way the Controlled Substances Act operates, it does not permit a rescheduling or use of a drug based on individualized determinations made by individual Federal District Courts making their own judgment about how serious the risk is. If a substance is going to be moved from Schedule 1 to Schedule 2, for example, to allow medical use, that is done through a centralized administrative determination involving coordination between the Secretary of Health and Human Services and the Attorney General, in which expert opinions are gotten and a judgment is made, but the judgment is made only if there is an accepted medical use. In other words, there has to be not -- a consensus, not simply an -- a determination by one religious group or one judge --
04-1084 +++$+++ 13054 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But --
04-1084 +++$+++ 13055 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that something may be so.
04-1084 +++$+++ 13056 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- RFRA overrides all that.
04-1084 +++$+++ 13057 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I --
04-1084 +++$+++ 13058 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I understand RFRA to be -- to say there can be an exception to all Federal statutes where someone makes a religious objection to compliance and, in the judgment of the court, there's not a compelling State interest in the Government going ahead with the statute. So, you know, whatever the scheme was under the drug laws, it seems to me it's subject to this new legislation.
04-1084 +++$+++ 13059 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We're not saying it's not subject to the legislation, but in deciding how the compelling interest applies under the statute -- just as under the First Amendment itself, before RFRA was passed, and the one is to replicate the other -- the court -- there were certain statutes, when the court looked at the way they operated and what was necessary to their effectuation, the court said that individualized exceptions would not be feasible. And there's no reason to believe, and every reason to disbelieve --
04-1084 +++$+++ 13060 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, when you talk about --
04-1084 +++$+++ 13061 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that Congress meant to put that to one side.
04-1084 +++$+++ 13062 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- reasons to believe and disbelieve, we don't have to make a once-and-for-all determination, do we? A lot of your concerns talk about what's going to happen if this exception is granted. Now, if some of those things come true, can't this issue be revisited? I don't regard -- maybe I'm wrong, but, under RFRA, you're not saying it's a compelling-interest test. It may be -- may not be satisfied in this case, but if it turns out there's a lot of diversion of the hallucinogen or the membership of the church expands in a way that leads you to believe it's being abused, I mean, then you'd look at it again, right?
04-1084 +++$+++ 13063 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I have several responses to that. That sort of approach, putting to the test basically a congregation-by-congregation -- or denomination-by-denomination, to use familiar terms -- test about whether a -- an exception should be recognized for a particular religion, itself, presents difficult questions. If you -- if you have a particular religious sect that believes that it is -- that it is important to invite everyone to the table -- not simply a closed group that has gone through screening, but a -- but everyone to their table --
04-1084 +++$+++ 13064 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that --
04-1084 +++$+++ 13065 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that would be -- but that would -- that -- the -- a court would be in a judgment about -- in saying that that --
04-1084 +++$+++ 13066 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Couldn't have said it better. And that's what we said in Smith. But Congress didn't like Smith and has enacted this statute obviously to undo, to the extent it can, the effect of our judgment in Smith.
04-1084 +++$+++ 13067 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, what -- it did not seek to undo the judgment in Smith. What the Court was -- what Congress was responding to was the -- what it understood to be the test. It reinstated the compelling-interest test, but specifically said it was not disagreeing with the outcome of any particular case under that prior test. And three of those cases -- Hernandez, concerning the tax code; Lee, concerning the Social Security Act; and Braunfeld, regarding the Sunday closing laws -- were all ones that adopted the approach that I have suggested.
04-1084 +++$+++ 13068 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But your -- but your approach is totally categorical. If you had a group that had, once a year, one drop of the hallucinogen involved here, per member, and it was rigorously policed, your position would still be the same --
04-1084 +++$+++ 13069 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our --
04-1084 +++$+++ 13070 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- even applying RFRA, which sets forth a compelling-interest test.
04-1084 +++$+++ 13071 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- our principal position would be the same. And I -- and I think that that approach is consistent with Justice O'Connor's opinion in Smith, which got a lot of prominence in the subsequent debate about RFRA, because, in that -- in that opinion, even though the compelling-interest test was applied, Justice O'Connor concluded that that test was satisfied because --
04-1084 +++$+++ 13072 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ But Congress disagreed, ultimately. They allowed the use of peyote.
04-1084 +++$+++ 13073 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that's an important point. Congress doing it does not open the Controlled Substances Act to the individualized determinations by 700 District Courts. It makes --
04-1084 +++$+++ 13074 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Kneedler --
04-1084 +++$+++ 13075 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but in --
04-1084 +++$+++ 13076 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a specialized judgment.
04-1084 +++$+++ 13077 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- may Congress, consistent with the Establishment Clause, say that we will create an exception for peyote, but not for this other church, which has far fewer members, less risk of diversion, has been found to be a genuine religion? The problem of preferring one religious group over another, it seems to me, arises once there is an exception for the Native American Church. And I heard you say, "Well, the Indian tribes are special," but is that -- that's it. It would have to be --
04-1084 +++$+++ 13078 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we think that -- we think that's critical, because what -- just as in this Court's decision in Laurel, what Congress has done is to act to respect the autonomous, independent institutions of the tribe. That also meets certain law enforcement concerns, because you have the tribal government, you have tribal law enforcement personnel, you have tribal culture and tradition that is independent simply of the religion. You have -- you have the entire tribal cultural structure that Congress could quite reasonably regard as being different. And respecting that distinct political attribute of tribes under this Court's decision in Morton versus Mancari, we don't think, creates an Establishment Clause problem. What --
04-1084 +++$+++ 13079 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I -- may I ask you one question about the procedural posture of this case? This is an appeal from a preliminary injunction. That's how it got here. And we have been discussing, mostly, the case just as though it had been a permanent injunction. The -- there are pieces of this case, like the Treaty and what it allows and doesn't allow, that -- where the record is so thin. Is there a way of dealing with this case so there is the full airing that it never got, without resolving, at this point, other issues --
04-1084 +++$+++ 13080 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I --
04-1084 +++$+++ 13081 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- you've been debating?
04-1084 +++$+++ 13082 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I -- on that limited point, if the Court applied the usual standards for the granting of a preliminary injunction, I think that the Court could quite readily reverse the preliminary injunction here, because that requires a clear showing of a substantial likelihood of success on the merits, plus that the other factors be decided. And with respect to the application of the Convention, that's really a question of law. And the United States took the position before the District Court in this case, that the Convention applied to the tea. We think it's unquestionably a mixture, and, therefore, a preparation within the meaning of the -- of the Convention, and the -- and the District Court's injunction really puts the United States in violation of an international agreement that is critical to prohibiting trafficking --
04-1084 +++$+++ 13083 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But they were --
04-1084 +++$+++ 13084 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do --
04-1084 +++$+++ 13085 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in drugs.
04-1084 +++$+++ 13086 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- do your briefs --
04-1084 +++$+++ 13087 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well --
04-1084 +++$+++ 13088 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- indicate, or does the record indicate, that the Government was foreclosed from presenting any evidence it wanted to present? If you, for some reason, go back, and this whole thing is done again, whether they -- is there important additional evidence for you to introduce, or do we essentially have the case in front of us, so far as you're concerned?
04-1084 +++$+++ 13089 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in -- as far as our position is concerned on our submission so far, we don't think the Court needs any further evidence. On the question of the application of the Convention, as we say, we believe that is a question of law. This Court has long deferred to the position of the executive branch on the interpretation of Conventions. And --
04-1084 +++$+++ 13090 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Counsel, I was a little unclear about your position on the Convention. I thought, at some -- one point, you said that it didn't really add much to your argument under the Controlled Substances Act, which implemented the Convention. Is --
04-1084 +++$+++ 13091 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it --
04-1084 +++$+++ 13092 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- there an independent --
04-1084 +++$+++ 13093 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it --
04-1084 +++$+++ 13094 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- argument?
04-1084 +++$+++ 13095 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, we believe that complying with an international Convention designed to prohibit trafficking in drugs is, itself, a compelling interest. And the -- under this Court's decisions in --
04-1084 +++$+++ 13096 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How --
04-1084 +++$+++ 13097 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that would be incorporated in RFRA. And it -- a -- an order that puts the United States in violation of that -- and the Court of Appeals didn't really deny -- a majority of the judges, anyway -- deny that this injunction requires the United States to violate the Convention --
04-1084 +++$+++ 13098 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it --
04-1084 +++$+++ 13099 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- by facilitating the importation of drugs from outside the country.
04-1084 +++$+++ 13100 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, what do you -- here's the problem that I have, particularly at the stage of the preliminary injunction, with that argument. The -- they're -- the Convention also includes that provision that its terms will be defined, enforced, and so on, in harmony, or conformity, with the domestic law of the signatory. Our domestic law includes RFRA. That would seem to open the door for, in effect, a RFRA exception.
04-1084 +++$+++ 13101 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, that exception is --
04-1084 +++$+++ 13102 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let me -- let me -- let me just finish my -- let me get to my -- let me get to my question --
04-1084 +++$+++ 13103 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sorry.
04-1084 +++$+++ 13104 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- before you answer it. [Laughter.]
04-1084 +++$+++ 13105 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ My -- the particular concern I have with that, at the preliminary injunction stage, is not necessarily that that particular argument should, for all times, be assessed correctly by the -- by the District Court. But it seems to me that if the District Court at least plausibly reads that exception to negate your argument, isn't that good enough, at the preliminary injunction stage, as a basis for the Court saying, "Look, you haven't -- you, the Government -- haven't carried your burden to show the affirmative defense here"?
04-1084 +++$+++ 13106 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This is a -- the interpretation of the Convention is a legal question, not a factual one. And Article 22 refers --
04-1084 +++$+++ 13107 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It is, there's no question. But we're still at the preliminary injunction stage.
04-1084 +++$+++ 13108 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. But respondent would bear the -- would bear the burden of --
04-1084 +++$+++ 13109 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why does the respondent bear the burden? You have the burden --
04-1084 +++$+++ 13110 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because this is to --
04-1084 +++$+++ 13111 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- under the statute.
04-1084 +++$+++ 13112 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- this is a change of the status quo. And to require the Government to allow the importation of a substance that's prohibited by the Convention. But if I --
04-1084 +++$+++ 13113 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well --
04-1084 +++$+++ 13114 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- if I could --
04-1084 +++$+++ 13115 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- no, but I realize that -- could we pause on that for a second? Because you apparently take the position -- the Government takes the position that when -- under the governing law, the Government would have an affirmative burden, ultimately, to defend -- in this case, on compelling interest, least restrictive, et cetera -- that, at the preliminary injunction stage, the applicant for the injunction has the burden to negate the probability that the Government will carry its burden on the ultimate issue. And I don't see why that should be so at all.
04-1084 +++$+++ 13116 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, at least with respect to the interpretation of a Convention, where the -- where the Government has taken --
04-1084 +++$+++ 13117 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but let --
04-1084 +++$+++ 13118 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I --
04-1084 +++$+++ 13119 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- just --
04-1084 +++$+++ 13120 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I under- --
04-1084 +++$+++ 13121 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- go through --
04-1084 +++$+++ 13122 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I understand the --
04-1084 +++$+++ 13123 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Get to the Convention --
04-1084 +++$+++ 13124 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- I understand the broader point, but --
04-1084 +++$+++ 13125 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- later. Get to the general -- first get to the general issue. Does the applicant for the injunction have the burden to negate the probability that the Government will prevail in its affirmative defense, ultimately?
04-1084 +++$+++ 13126 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We --
04-1084 +++$+++ 13127 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is that your position?
04-1084 +++$+++ 13128 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that is our position, and we cite cases in the -- in the brief that say that. But it is not critical to the outcome of this case with respect to the Convention issue and several other of the issues that --
04-1084 +++$+++ 13129 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well --
04-1084 +++$+++ 13130 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that I -- that I was going to --
04-1084 +++$+++ 13131 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the Convention --
04-1084 +++$+++ 13132 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So --
04-1084 +++$+++ 13133 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- issue goes directly to your affirmative defense.
04-1084 +++$+++ 13134 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It goes -- but it is a question of law. And the article of the Convention that you're referring to is -- concerns the penal provisions. In other words, Article 7 of the Convention requires each party to prohibit -- this is Article 7, on page 288(a) -- requires that -- each State to prohibit these substances. Twenty-two simply goes to the criminal provisions that each party's State will adopt internally to carry that out. But it doesn't -- it doesn't detract from the -- from the categorical obligation under Article 7, which --
04-1084 +++$+++ 13135 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the --
04-1084 +++$+++ 13136 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- would prohibit it.
04-1084 +++$+++ 13137 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- part of the Treaty question that I had is also -- this is a root that you are -- and it contains DMT. And the Treaty doesn't ban everything that contains DMT -- for example, pineapple and bananas. The question is the ratio of the DMT to the entire plant.
04-1084 +++$+++ 13138 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1084 +++$+++ 13139 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that sounds like a factual question that ought to be developed.
04-1084 +++$+++ 13140 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think where you have a mixture that -- a mixture of two plants that are put together for the specific purpose of using them for the hallucinogenic purposes, that goes far beyond simply whether a particular substance --
04-1084 +++$+++ 13141 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Pineapples, we -- what about those?
04-1084 +++$+++ 13142 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1084 +++$+++ 13143 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I drank pineapple --
04-1084 +++$+++ 13144 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Plants --
04-1084 +++$+++ 13145 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- juice this morning. [Laughter.]
04-1084 +++$+++ 13146 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- as such, are not covered. But when you make a mixture of something for the specific purpose of releasing its hallucinogenic purpose -- qualities, we think that that's clearly covered by the Convention. If I may reserve the --
04-1084 +++$+++ 13147 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What do you say -- I'm sorry.
04-1084 +++$+++ 13148 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I was just going to reserve the --
04-1084 +++$+++ 13149 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, you want to reserve your time. Okay.
04-1084 +++$+++ 13150 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Kneedler. Ms. Hollander.
04-1084 +++$+++ 13152 +++$+++ FALSE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The Government's position here, that the Court should completely defer to Congress's generalized finding to wholly exempt Schedule 1 of Controlled Substances Act from RFRA's mandate is fundamentally and structurally incompatible with RFRA.
04-1084 +++$+++ 13153 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you seem to give the fact that it's listed in Schedule 1 zero weight. It seems to me, at the very least, there should be a presumption that this is a compelling interest.
04-1084 +++$+++ 13154 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, and --
04-1084 +++$+++ 13155 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And when the -- and when the evidence is in equipoise, as the district judge thought it would, that presumption, it seems to me, carries the day for the Government.
04-1084 +++$+++ 13156 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the District Court -- we give it deference, as did the District Court. Judge Parker specifically found, contrary to what the Government says, that he began by looking at Schedule 1, and he specifically says -- I believe it's on page 212(a) of the petitioner's appendix -- that he had to begin there. And he said, "This Court must give due regard for the fact that Congress put DMT into Schedule 1." But then he applied RFRA. And in applying RFRA, he went on to apply RFRA and to specifically find that applying RFRA, which requires not only a compelling interest, but a compelling interest to the person, that the Government did not meet its burden in this case of showing harm, any risk of harm, to these members, or any risk of diversion. And I'd like to go back, for a moment, to the issue of peyote, because, first of all, if you look at the congressional record in 1965, for what that's worth, there's not one mention -- and it's on page -- starts on page 480 of the joint appendix -- there's no mention of Indian tribes, there's no mention of sovereign issues with the Indian tribes. There's a mention of the Native American Church and the First Amendment and why this exemption has to be made. And, in fact, our record is --
04-1084 +++$+++ 13157 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do we know whether you can be a member of that church without being an Indian?
04-1084 +++$+++ 13158 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir, we do, Your Honor. We know that. And it is throughout our brief. There's many mentions of it, the fact that there have been non-Native-American members since the beginning of the Native American Church. I would direct the Court to the easiest one, which is at the joint appendix at page 500, which is a memo from a DEA legal counsel talking about this. And, in fact, at the hearing in our case, on the very last day -- it was on November 2nd, 2001, at page 1933 -- Mr. Adam Zubin, representing the Government, specifically said, and I quote, "The Federal Government places no restrictions on who can participate in the Native American Church." So, we have two things. We have the exemption in 1965 --
04-1084 +++$+++ 13159 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, your theory would be if you had a religious group that -- whose doctrine was that you should proselytize through hoasca, and they want everybody to come, and they're aggressive in doing that, and distributing hoasca, that the Government should be in a position of saying, "This religious group can use it, but that religious group can't"?
04-1084 +++$+++ 13160 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, it would depend, again, on the facts of that case.
04-1084 +++$+++ 13161 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, they're the kind of the -- the ones I just gave you. In other words, if there's going to be a greater threat of diversion to -- it's not limited to the members of a very cohesive and limited group, but it's -- they're -- they aggressively try to reach out, but it's all part of a sincere religious belief, that we should, in applying RFRA, draw distinctions between the group you represent and that hypothetical group?
04-1084 +++$+++ 13162 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The distinctions -- yes and no, and let me explain, Your Honor -- Mr. Chief Justice -- the distinction is that if the Government could meet a compelling interest and actually show a risk of diversion --
04-1084 +++$+++ 13163 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I'm assuming they show --
04-1084 +++$+++ 13164 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that they --
04-1084 +++$+++ 13165 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- that there is --
04-1084 +++$+++ 13166 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- showed it --
04-1084 +++$+++ 13167 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-1084 +++$+++ 13168 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- then they would have different facts. And the different facts in that case would mean that, in that case, the Government would win. Now, I'd like to point out, although I realize you've just presented me with a hypothetical -- however, there are 250,000 members of the Native American Church, and the record in our case is that there's never been any evidence of any diversion. And, although the Government has --
04-1084 +++$+++ 13169 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Well, if we --
04-1084 +++$+++ 13170 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I just --
04-1084 +++$+++ 13171 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ -- think that the Treaty -- the Convention entered into in 1971 -- makes clear that hoasca is covered, then does that provide a compelling interest for the Government, because it requires the Government to prohibit the importation? If we think, as a matter of law, the Convention covers hoasca.
04-1084 +++$+++ 13172 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, it doesn't, because, again, the Government has -- we have to look at the Treaty, just like we look at any other law -- RFRA clearly says --
04-1084 +++$+++ 13173 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Well, if we conclude, looking at the Treaty, that it prohibits hoasca, covers it, and that it provides that nations that enter into the Convention must avoid importation of it, then is that a compelling interest under RFRA?
04-1084 +++$+++ 13174 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It may -- yes, Your Honor --
04-1084 +++$+++ 13175 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ It is?
04-1084 +++$+++ 13176 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- it may be a compelling interest, but it still may not satisfy RFRA, because RFRA specifically requires that it be a compelling interest to the person. And we -- the Government would have to put on evidence. And even though this is a question of law, that doesn't preclude the District Court hearing evidence which he has not heard at -- to this point -- put on evidence showing that the -- that the compelling interest the Government has asserted in this case, which is that it would lose its leadership position in the international community, would really be a compelling interest, and that it could not be accommodating.
04-1084 +++$+++ 13177 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, that isn't the compelling interest. The compelling interest is, we signed a Treaty, and you follow it. Now, how can you say that the Government wouldn't have a compelling interest in following a Treaty where they -- where they promised to ban the substance? I mean, they're not -- they're just saying RFRA doesn't apply where that's at stake. Now, what's the argument against that? You're saying the argument against that is, maybe it really isn't a compelling interest? Well, okay. Why not? I mean, it sounds to me as if it would be. They have a Treaty. They have to live up to their word, period. What's wrong with that?
04-1084 +++$+++ 13178 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's nothing wrong with that, Your Honor. The -- what's wrong with that is that RFRA requires the Government to go further than that.
04-1084 +++$+++ 13179 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It does? All right. That's an issue, I guess. I'd have to decide: Is a compelling and -- does it require the Government to go further? But you concede that if it doesn't require the Government to go further, you lose.
04-1084 +++$+++ 13180 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the Treaty does include hoasca, which we believe that it doesn't.
04-1084 +++$+++ 13181 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. So, that's a different issue. Why doesn't it?
04-1084 +++$+++ 13182 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Why doesn't it? It doesn't. And the -- and, interestingly, the executive took the reverse position that it's taking here throughout the history of this Treaty until this litigation, and it doesn't cover hoasca, because it doesn't cover plants, or infusions from plants. And that is the position. And the reason why the U.S. would not lose its leadership position is that that's the position of Brazil, which allows religious use --
04-1084 +++$+++ 13183 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't care whose position it is. The language does not admit of that exception. There's nothing in the language of it that would suggest that exception at all. What language do you rely upon for that exception?
04-1084 +++$+++ 13184 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Treaty -- we have to rely, Your Honor, on the Treaty as a whole. And what --
04-1084 +++$+++ 13185 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ As a whole, anywhere in it -- give me language anywhere in the whole Treaty that --
04-1084 +++$+++ 13186 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What the --
04-1084 +++$+++ 13187 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- suggests that exception.
04-1084 +++$+++ 13188 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Treaty that the -- the language that suggests that exception is, first of all, in Article 32, that talks about the traditional use of plants. It is in the fact that plants are not covered. And so, a --
04-1084 +++$+++ 13189 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, but a --
04-1084 +++$+++ 13190 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- preparation --
04-1084 +++$+++ 13191 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- solution that includes the substance DMT is covered, by definition, as I understand it. Tea is a solution, and it includes DMT. Isn't that the end of the issue?
04-1084 +++$+++ 13192 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, it isn't. And the reason it isn't is, if we look -- several places, one is the conduct of our Treaty partners, none of whom agree with that position -- we look at --
04-1084 +++$+++ 13193 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What's wrong -- can you tell me, on the face of it, what's wrong with it? I mean, I -- if I have tea at 5 o'clock, I think I'm drinking a solution that includes the little things that come out of the tea leaves. And that's what we've got involved here.
04-1084 +++$+++ 13194 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Maybe our Treaty partners are just violating the Treaty.
04-1084 +++$+++ 13195 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, if they are, then we are, also --
04-1084 +++$+++ 13196 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Well --
04-1084 +++$+++ 13197 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- because --
04-1084 +++$+++ 13198 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Tell me what's wrong with the analysis of the solution?
04-1084 +++$+++ 13199 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The --
04-1084 +++$+++ 13200 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I have specific language from the Treaty's commentary in front of me that supports you. Are you not going to read that? [Laughter.]
04-1084 +++$+++ 13201 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I was --
04-1084 +++$+++ 13202 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ She's not going to read it, because I asked her for language in the --
04-1084 +++$+++ 13203 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the Treaty.
04-1084 +++$+++ 13204 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- Treaty. In --
04-1084 +++$+++ 13205 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I was --
04-1084 +++$+++ 13206 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- the Treaty --
04-1084 +++$+++ 13207 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
04-1084 +++$+++ 13208 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- not in the legislative history of the Treaty. [Laughter.]
04-1084 +++$+++ 13209 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I was -- I was trying to answer Justice Scalia's question. But let me say this. And of course I would read the language of the commentary and the INCB and the opinion of our former ambassador, Herbert Okun, in Brazil and France. But let me also say, if I may, that the position of the executive, until this -- until this litigation, has been the same. And the reason we know that is precisely what you said, Your Honor. Mescaline is also covered by the Treaty. Peyote is not. The Native --
04-1084 +++$+++ 13210 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I --
04-1084 +++$+++ 13211 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- American --
04-1084 +++$+++ 13212 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- thought that's because we made a special reservation for peyote.
04-1084 +++$+++ 13213 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Mr. Chief Justice. We did make a special reservation, but it didn't matter yet, because it's never been covered. That reservation, if you go back and look at what the Senate said at the time, and what -- there are no plants. They're just not listed in the Treaty. The purpose of the reservation was, in an abundance of caution, in case it would be -- in case it would be added in the future, then plants, and solutions from plants, would be covered. But as it stands now, members of the Native American Church drink a tea containing peyote and --
04-1084 +++$+++ 13214 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, are you --
04-1084 +++$+++ 13215 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- mescaline.
04-1084 +++$+++ 13216 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- saying that there are -- there's basically an ambiguity in the Treaty, that solutions derived from plants are not covered, but solutions that include DMT are covered, and there -- therefore, there is a question?
04-1084 +++$+++ 13217 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- yes, the ambiguity arises because what the Treaty means is that if you were to extract the DMT and then add it to something, which can't be done here and could have no religious meaning for the UDV, and we're not even sure if -- chemically, if it's possible. If you were to extract it and then add it, then you would have a solution containing DMT. And that's --
04-1084 +++$+++ 13218 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But solution is defined by the number of steps in the process that gets the substance into the water? Is that --
04-1084 +++$+++ 13219 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1084 +++$+++ 13220 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- correct?
04-1084 +++$+++ 13221 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Your Honor, I didn't write this Treaty, and I -- and I must say -- [Laughter.]
04-1084 +++$+++ 13222 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Oh, I'm not blaming you --
04-1084 +++$+++ 13223 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that it --
04-1084 +++$+++ 13224 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- for it --
04-1084 +++$+++ 13225 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that it --
04-1084 +++$+++ 13226 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- but I --
04-1084 +++$+++ 13227 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that it -- [Laughter.]
04-1084 +++$+++ 13228 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not the clear -- the clearest writing, but we know -- we know what its meaning is, and we do have to look at the travaux, which goes into long detail about why they even mention plants, because of their fear, in the future, that plants might be covered. Now, other plants are covered --
04-1084 +++$+++ 13229 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can --
04-1084 +++$+++ 13230 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in a different Treaty. But --
04-1084 +++$+++ 13231 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can I make a suggestion as to why, even if it is covered by the Treaty, it may not be a compelling State interest to comply with the Treaty?
04-1084 +++$+++ 13232 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Say yes. Let me him make that --
04-1084 +++$+++ 13233 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. [Laughter.]
04-1084 +++$+++ 13234 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm just waiting. [Laughter.]
04-1084 +++$+++ 13235 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It was the right answer.
04-1084 +++$+++ 13236 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm just trying --
04-1084 +++$+++ 13237 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Because I haven't --
04-1084 +++$+++ 13238 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to be polite.
04-1084 +++$+++ 13239 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- it made. I -- I mean, isn't it well-established that statutes trump treaties, that if Congress decides, in a subsequent statute, to ignore a Treaty, it may do so? Now, if this RFRA can trump a statute, it would seem to me, a fortiori, it can trump a Treaty.
04-1084 +++$+++ 13240 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, it can, Your Honor. It can trump the Treaty, and that -- and that is --
04-1084 +++$+++ 13241 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, compliance --
04-1084 +++$+++ 13242 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- correct.
04-1084 +++$+++ 13243 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- with a Treaty is not necessarily a compelling State interest.
04-1084 +++$+++ 13244 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is not. And -- but we don't even have to go that far, because, if we do the RFRA analysis, the Government must show a compelling interest to the person and, in addition --
04-1084 +++$+++ 13245 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But, surely --
04-1084 +++$+++ 13246 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the --
04-1084 +++$+++ 13247 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- surely RFRA doesn't say that you disregard treaties or you disregard statutes in determining what's a compelling interest.
04-1084 +++$+++ 13248 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. You don't disregard them, Your Honor, but --
04-1084 +++$+++ 13249 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And getting back to the first question that Justice Breyer asked -- and then we got off on what the Treaty really means -- but assuming that the Treaty does prohibit the importation of this substance -- assuming that -- is there any evidence that the District Court thought that this was a compelling interest?
04-1084 +++$+++ 13250 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- no, the District Court --
04-1084 +++$+++ 13251 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ None at all.
04-1084 +++$+++ 13252 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- analyzed the Treaty differently, and analyzed the Treaty to not apply to hoasca, for all the reasons that are -- that are in his opinion in our brief. And, therefore --
04-1084 +++$+++ 13253 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, if we disagree with you on the Treaty, then the appellate court's opinion doesn't really even address the point whether or not this and/or the statute, together, can be a compelling interest.
04-1084 +++$+++ 13254 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. If you disagree with the District Court on that, then the case should be remanded for it to -- for additional --
04-1084 +++$+++ 13255 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't know if there isn't a factual question here. I mean, I thought Justice Scalia, if it were to be up to him, did take into account official commentaries to treaties. But maybe he doesn't. Anyway, I take them into account. And I -- and in respect to that, I read this as saying, specifically, that the plants -- it doesn't include the substance if it is a substance clearly distinguished from the substance constituting its active principal -- and the example they give is mimosa root, which contains DMT.
04-1084 +++$+++ 13256 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true. And --
04-1084 +++$+++ 13257 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And then, that's also true of the bananas and pineapples, et cetera. And there's a court holding that hoasca's out of it, in France and one in the Netherlands, all of which I think was relevant to a Treaty. All right? Now, the Government has come in with a counterargument and said it clearly does cover, I guess, even mimosa roots, where they are imported solely for the purpose of extracting DMT. Now, what's the response to that?
04-1084 +++$+++ 13258 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The response to that, Your Honor, is that there is no DMT extracted in this case. Although the Government said that in their brief, there is no evidence of that, and it is contrary to the evidence --
04-1084 +++$+++ 13259 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it has to be extracted at some point to be -- to get into -- I'm right here -- to get into the tea, right? It's extracted by the preparation of the tea.
04-1084 +++$+++ 13260 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Mr. Chief --
04-1084 +++$+++ 13261 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The plants are not -- the plants are not imported, right? Just the tea.
04-1084 +++$+++ 13262 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The tea is imported. But the --
04-1084 +++$+++ 13263 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-1084 +++$+++ 13264 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but the tea is made just like you would make tea if you mixed chamomile and mint, and then --
04-1084 +++$+++ 13265 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right.
04-1084 +++$+++ 13266 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and then you took the leaves out. What you have --
04-1084 +++$+++ 13267 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right.
04-1084 +++$+++ 13268 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in that tea is a collection of a tremendous number of alkaloids. And what the commentary is saying is that you would have to pull this alkaloid out. And that would be a chemical process. There's further -- there's further --
04-1084 +++$+++ 13269 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I guess I -- if I could just go back to the point. You're emphasizing that the Treaty doesn't cover the importation of plants. But you're not importing plants, you're --
04-1084 +++$+++ 13270 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That --
04-1084 +++$+++ 13271 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- importing a mixture that must contain the covered hallucinogen or it doesn't have its effect.
04-1084 +++$+++ 13272 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. However, under the Treaty, it's not -- it's not covered by the Treaty, because it is not separate. If DMT were separated, then it would be covered by the Treaty. And, actually, if you look at the 1988 Treaty, going even farther, and its commentary, the commentary in the 1988 Treaty, which has to be read in connection with the 1971 Treaty, specifically defines preparation as the extraction --
04-1084 +++$+++ 13273 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, under your --
04-1084 +++$+++ 13274 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of the drug.
04-1084 +++$+++ 13275 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- theory, a marijuana tea would not be covered by the Treaty.
04-1084 +++$+++ 13276 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not by this Treaty. But that -- marijuana, coca leaves and poppies are specifically covered by the 1961 Treaty.
04-1084 +++$+++ 13277 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but they're not being imported, they're transformed into this tea. And you -- saying the active substance isn't there independently, so it's not covered. And that seems to me to be a -- an erroneous reading of the Treaty.
04-1084 +++$+++ 13278 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the difference, for example, with marijuana, is that if you look at the 1961 Treaty, it says "the plant, all parts of the plant, everything from the plant." It's all covered. What the 1971 Treaty did was different. And if you read the 1971 Treaty and the 1988 Treaty and their commentaries, if I can rely on their commentaries, and the International Narcotics Control Board, what they are expressing is a concern for the traditional religious and mystical use of plants in religion, and that's what they were concerned about, and that's why they didn't put this in, and that's why they specifically have, in the commentary, that the example of mimosa -- and they also have an example of peyote in the same paragraph 12, where they --
04-1084 +++$+++ 13279 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ About commentary or travaux, I don't mind using them for treaties, so long as they don't contradict the Treaty. Do we have any case where we use the -- les travaux preparatoires to actually contradict the language of the Treaty?
04-1084 +++$+++ 13280 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not to my --
04-1084 +++$+++ 13281 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And that's what, it seems to me, is going on here.
04-1084 +++$+++ 13282 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, it's not contradicting the Treaty, because the Government is taking this one sentence preparation, and the Government has a definition of it, for this litigation only, that is contrary to the definition in the Treaty the way it is interpreted by the travaux and by the commentary, and by this executive, which means that the executive's position here is really entitled to no deference; because, otherwise, the tea drunk by the Native American Church, the peyote tea, would also be covered.
04-1084 +++$+++ 13283 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But, as -- I understand the Treaty. What the Treaty says is, you can't import substances listed in Schedule 1. Then you look at Schedule 1, and it doesn't say hoasca.
04-1084 +++$+++ 13284 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
04-1084 +++$+++ 13285 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It says "DMT." And then it has another -- and, interpreting that, it says the fact, if you look at that list and it says "DMT," means what it says: You can't import DMT. It's a drug importation statute, and it doesn't cover plants that contain the substance DMT. Otherwise, we'd have -- throw out bananas and -- or mimosa, anyway. And we're not looking to intent on that. Now, that's a possible interpretation that doesn't contradict anything. And --
04-1084 +++$+++ 13286 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, except that you don't import the plants, right?
04-1084 +++$+++ 13287 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. And we don't import DMT. We import a tea that contains an enormous number of alkaloids. And it was clear in --
04-1084 +++$+++ 13288 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You're in trouble. That's harder, then, if it's --
04-1084 +++$+++ 13289 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was -- it's clear --
04-1084 +++$+++ 13290 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But, of course, the reason you import it is because it contains this particular substance. [Laughter.]
04-1084 +++$+++ 13291 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. That is correct. However, the Treaty wanted to be -- the Treaty writers were very careful to not impinge on traditional religious use. And RFRA -- and there's one more thing that I've been trying to say, and that is that RFRA requires not just a compelling interest, but a compelling interest to the person, and it requires least-restrictive means.
04-1084 +++$+++ 13292 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't know what you mean by that. You said that before, too.
04-1084 +++$+++ 13293 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Least --
04-1084 +++$+++ 13294 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Could you explain that again? You said a compelling interest to the -- what person?
04-1084 +++$+++ 13295 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ To the person. To what person?
04-1084 +++$+++ 13296 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To the aggrieved person. To this particular --
04-1084 +++$+++ 13297 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Isn't the compelling interest in enforcing it against the aggrieved person. Isn't that what you mean?
04-1084 +++$+++ 13298 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right.
04-1084 +++$+++ 13299 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. That's correct. But --
04-1084 +++$+++ 13300 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Oh, okay.
04-1084 +++$+++ 13301 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but RFRA also requires that the Government prove, if it proves a compelling interest, to enforce it against the person, and if it gets there, it also must prove that it is furthering that compelling interest by the least restrictive means. Now --
04-1084 +++$+++ 13302 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But if the interest is defined, as Mr. Kneedler did -- that is, these drugs are "No, absolutely prohibited." -- then how can you have any less restrictive means? It seems to me that you can -- I understand your argument about a compelling State interest has to be judged in context -- to the person, to this church. But if Mr. Kneedler is correct that the compelling State interest is that this is a proscribed drug, then there can't be any least restrictive means.
04-1084 +++$+++ 13303 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I disagree, Your Honor. For example, other countries that have domestic policies have found ways to accommodate that have not violated the Treaty. For example, Switzerland provides needles and heroin to its -- to its drug users. And the United States has not objected that this is a violation of the Treaty.
04-1084 +++$+++ 13304 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What about --
04-1084 +++$+++ 13305 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
04-1084 +++$+++ 13306 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I worry about the general proposition we would be adopting if we say, you know, one narrow exception is not a -- doesn't contravene a compelling State interest. What about -- I assume there is still a Federal law against bigamy that applies in Federal territories. Now, what if, you know, a small religious group comes forward and said, you know, "We -- our religion requires bigamy. There are not a whole lot of us. We're just a little tiny group. So, we demand, under RFRA, an exemption from this absolute law. Why does it have to be absolute? It's just a little tiny exception, only a few of us."
04-1084 +++$+++ 13307 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1084 +++$+++ 13308 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ At least for now. [Laughter.]
04-1084 +++$+++ 13309 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Until they reproduce. [Laughter.]
04-1084 +++$+++ 13310 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the analysis would be the same. First, that religion would have to prove it was a sincere religion and meet that burden. And then the Government could come forward with a compelling interest that -- and the -- and perhaps find the same thing that was found in Reynolds, which was not a strict scrutiny case, but may come out the same way -- the sanctity of marriage, the other issues. And those would be issues of fact for a district judge to decide, under his discretion. And it -- all RFRA does is give every religious organization, the minority ones and the majority ones, the opportunity to go into court as an aggrieved person and make their claim and see whether the Government can meet its burden.
04-1084 +++$+++ 13311 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask you a question? It's a bit tangential just a little bit, but going back to the Chief Justice's question earlier about diversion? And his suggestion was, if they're -- proselyte the religion, you get all sorts of converts who will just use it in the same way as the small number use it now. Would that be diversion, or would it be diversion -- diverting it to some people who are not members of the religion?
04-1084 +++$+++ 13312 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1084 +++$+++ 13313 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What does the word "diversion" mean in this context?
04-1084 +++$+++ 13314 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ "Diversion," Your Honor, is a term of art here. And I thought I answered it that way, but maybe I was unclear. It means diversion from licit use to illicit use. So, it's --
04-1084 +++$+++ 13315 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, but then, getting more members to -- converted to the religion would not be diversion.
04-1084 +++$+++ 13316 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it would not be diversion. There would only be a problem if the Government, for example, showed --
04-1084 +++$+++ 13317 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-1084 +++$+++ 13318 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that there was some diversion outside. And that's why I used the example of the Native American Church; there's never been any diversion. I'd like to go back to one other issue that perhaps I didn't make clear. What the -- it's true that the UDV does not import the plants. But it's those plants that are sacred to the UDV. It can't substitute them. Not only is DMT in bananas and pineapple, but Phalaris grass, for example, that -- and there's a picture of one in our joint appendix at about page 518, I believe -- grows in this country. A recreational user could just go and, you know, mix the Phalaris --
04-1084 +++$+++ 13319 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but --
04-1084 +++$+++ 13320 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- grass.
04-1084 +++$+++ 13321 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- I don't see -- I mean, I see I was not right. You do import drums of tea. And they say, in the Treaty, that a preparation is a solution or mixture containing a substance. And it would seem to be a solution or a mixture containing DMT. And the commentary that I thought helped you does concern plants, but you're not importing plants. So, now I'm rather troubled to see if there is any way that this Treaty is interpreted in a manner that allows you to win. What is it?
04-1084 +++$+++ 13322 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- what the commentary says is that it is not a covered preparation, that an infusion or tea made from the roots of a plant is not a covered preparation, and that --
04-1084 +++$+++ 13323 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Ms. Hollander, may I just, on this point -- it's the same question I raised with Mr. Kneedler. We're talking about a preliminary injunction. Your side, I think, said, "Go for the permanent injunction. We have a lot more to put in." The presentation on the Treaty was rather thin, below. I take it from Mr. Kneedler's argument that he's saying the preliminary injunction, or not, is really the thing. If the Government wins, no preliminary injunction. There's not going to be any show for a permanent injunction. But, on your side of it, what more would you be putting in? Let's say you prevail at the preliminary injunction stage. Would you then say, "See, Judge, now you can enter a permanent injunction"? Or you -- would you be putting in more evidence? And if so, what kind?
04-1084 +++$+++ 13324 +++$+++ TRUE +++$+++ MS. HOLLANDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we certainly have a great deal of more evidence, Your Honor, that we can put in. We have substantial evidence on the Treaty, and evidence we haven't even talked about here, proving that this hoasca is not covered by the Treaty. We have additional health and safety evidence. We have additional evidence to show lack of diversion. We have additional evidence that Judge Parker talks about to show targeting of the religion and selective prosecution. We have a great deal more evidence we can put on. But, of course, it depends on what the Government puts on. Because, at this point, the Government has not met any of its burdens. Now, you're correct about the Treaty. None of that has gone on. The Government resisted any evidence about the Treaty, resisted the very best evidence, which was the International Narcotics Control Board's opinion that hoasca is not covered by the Treaty. And we now have -- we now have more that we would put on. And, you know, what the church and its members seek is just the right to practice their religious faith, as Congress guaranteed them in RFRA. Because Congress guaranteed and recognized that religious liberty is a core value in this country. Two courts below found, on a lengthy factual record, that the Government had not met the burdens Congress imposed. This Court should do -- even if this Court believes that it's a close question -- should do then what it did in Ashcroft v. ACLU, affirm the preliminary injunction, remand this case for a trial on the merits. If this Court were to do anything less than that, it's really to deny Congress's intent and Congress's policy here, because Congress's policy is that religious freedom, religious liberty, shall not be burdened unless, and until, the Government meets its burdens. The District Court clearly found, and said, that the Government did not show a risk of harm, did not show a risk of diversion; and, therefore, he found that the Government did not meet its compelling interests in this case. And we would ask the Court to affirm the preliminary injunction, remand this case to the District Court. Thank you.
04-1084 +++$+++ 13325 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Ms. Hollander. Mr. Kneedler, you have 4 minutes left.
04-1084 +++$+++ 13327 +++$+++ FALSE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. If I may focus first on the question of importation, no country in the world would permit the exportation and importation of preparations that contain a substance listed under the Convention, because the express words of the -- of the Convention prohibit it. And the commentary that is cited does -- all it says it that plants, as such, are not covered. The plants themselves are not included in the schedule. It then has footnotes describing how the plants may be used, how -- in a mixture or a solution that contain the DMT or some other subject. And that's precisely the sort of thing that the Convention was designed to prohibit. And --
04-1084 +++$+++ 13328 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But what -- but what does that benefit you? I mean -- I guess this is Justice Scalia's question he asked earlier -- the Treaty is -- it seems to me if you're willing to override a duly enacted statute, the Treaty shouldn't have any greater status.
04-1084 +++$+++ 13329 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think RFRA does override it. What RFRA does is take the compelling interests that the Government already has in enacted laws or treaties, as they are, and then you apply -- you apply RFRA to them. And that's --
04-1084 +++$+++ 13330 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You think the Treaty gives you a more compelling governmental interest than the Controlled Substances Act?
04-1084 +++$+++ 13331 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I certainly do. And the two together, I think, are doubly compelling, because the Government -- the United States has a compelling interest in encouraging this, and section 801(a) --
04-1084 +++$+++ 13332 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ More than doubly. It has to be doubly, plus a little, if you said that one is even more than the other. [Laughter.]
04-1084 +++$+++ 13333 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that's okay.
04-1084 +++$+++ 13334 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But Congress itself, in the statute implementing this Convention, said it is essential to have international cooperation in the protection of the -- of the drugs covered by the statute. So, you have a statutory determination that this is critical, anyway.
04-1084 +++$+++ 13335 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, we have to agree with you, though, that our Treaty partners in this area have, sort of, a zero-tolerance approach to enforcing the Treaty.
04-1084 +++$+++ 13336 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, not at all. First, the United -- as a general matter, of course, the United States has a compelling interest in living up to its treaties. But, under this Treaty, in particular, the United States has to be in a position to go to other countries, maybe countries that are dragging their feet about whether to take enforcement measures, and say, "You have an obligation to strictly construe this Convention." And if they are able to come back and say that you have -- - you, yourselves, have not been doing that, that undermines the ability of the United States in enforcing a Treaty designed to prohibit international trafficking in controlled substances. And nothing in this Court's first amendment cases would have suggested that there is a free-exercise right --
04-1084 +++$+++ 13337 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's actually why I've been looking. I'm bothered by it, because it -- if the Treaty is absolute, we reserve for peyote, which would mean the religious use of peyote by the Native American tribes is exempt, but other people who have identical religions, use identical substances, they're stuck. And that, it seems to me, is a rather rough problem under the First Amendment.
04-1084 +++$+++ 13338 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1084 +++$+++ 13339 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ One religion singled out. And, therefore, I'm looking for some way in this Treaty not to reach that conclusion --
04-1084 +++$+++ 13340 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, with --
04-1084 +++$+++ 13341 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- for the constitutional reason.
04-1084 +++$+++ 13342 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- with respect to peyote, the Convention does not allow the importation or exportation or international trafficking in any substance that there is a reservation taken for. It is a reservation only for the domestic use of plants that are native to that country. So, peyote cannot be exported or imported under this -- under this Convention. And so, the idea -- so, there's nothing inconsistent with respect to the fundamental threshold question of importation, but, even so, we think, in Congress's specific Indian power, that that -- that that could be different.
04-1084 +++$+++ 13343 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. --
04-1084 +++$+++ 13344 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
04-1084 +++$+++ 13345 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- Kneedler, if you prevail, would there be anything left over to be argued about in the -- for permanent injunction?
04-1084 +++$+++ 13346 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. In our view, on the -- on the legal -- now, on our principal submission, no, there would not be anything further, because under -- in our view, there's a categorical prohibition against Schedule 1 substances. That is the compelling interest. The question, then, is whether -- as this Court said in Lee, and as Justice O'Connor said in her concurring opinion in Smith, the question is whether an exception would unduly interfere with carrying out that interest, or whether it would be a least effective -- less effective means, in terms of being less effective. And we think there's no question that any exception to a categorical bar would violate that standard.
04-1084 +++$+++ 13347 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Kneedler. The case is submitted.
04-1131 +++$+++ 13352 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first today in Whitman versus Department of Transportation. Ms. Karlan.
04-1131 +++$+++ 13354 +++$+++ FALSE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. Mr. Chief Justice, and may it please the Court: The Government now concedes that the Ninth Circuit erred in holding that the negotiated grievance procedure of the Civil Service Reform Act strips Federal courts of their jurisdiction to hear constitutional claims by Federal employees.
04-1131 +++$+++ 13355 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We're not bound by that concession. If that's a jurisdictional question, doesn't matter whether the Government conceded it or not, does it?
04-1131 +++$+++ 13356 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. That's correct, but the Government correctly conceded perhaps I should have said. So I think that the --
04-1131 +++$+++ 13357 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's a different question.
04-1131 +++$+++ 13358 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. So the question before the Court is not whether, I think, Mr. Whitman can receive constitutional judicial review, but rather, where and how he is supposed to do so.
04-1131 +++$+++ 13359 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I still think it's whether because I don't agree with the Government. Can I do that?
04-1131 +++$+++ 13360 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of course, you can.
04-1131 +++$+++ 13361 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that is the question. I mean, the question is open whether there --
04-1131 +++$+++ 13362 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. I -- I think, obviously, the Court has an obligation to satisfy itself of the jurisdiction. But I'll point out then that you would have had that obligation as well in NTEU against Von Raab in which this Court addressed precisely the same kind of case, litigated in precisely the same posture.
04-1131 +++$+++ 13363 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was it raised? Was that objection, the jurisdictional question, raised in the briefs and --
04-1131 +++$+++ 13364 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was raised in the district court and the Government chose not to raise it in the court of appeals or here. But, of course, you have, as Justice Scalia said, an independent obligation to satisfy yourself of your subject matter jurisdiction.
04-1131 +++$+++ 13365 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But our cases say that where we don't speak to a jurisdictional question, it is not regarded as having been decided.
04-1131 +++$+++ 13366 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I'm not saying that you decided it in NTEU against Von Raab, Justice Scalia. I'm just saying that given that you were apparently satisfied with the theory, you should be satisfied here too as well.
04-1131 +++$+++ 13367 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Even -- even if you assume that Von Raab decided it, you have a quite different situation here. The issue isn't whether there will be any judicial review. The issue is whether there will be judicial review for the minor grievances, even if they happen to involve a constitutional issue, that are -- that are not -- for which judicial review was not provided. Any major employee action -- judicial review, as I understand it, is available, and it is only relatively insignificant actions for which judicial review is not available. Isn't that right?
04-1131 +++$+++ 13368 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. With all respect, Justice Scalia, I think that's incorrect. The Civil Service Reform Act provides for judicial review of personnel actions, and if you go back to the opinion for the Court that you wrote in Fausto, you'll see that you repeatedly referred to them as personnel actions there. Now, a warrantless search of a Government employee, as this Court's opinion in Bush against Lucas says at note 28, is not a personnel action, and therefore, there is no way of obtaining review of it through the Civil Service Reform Act. But it is not in any sense here a minor violation of Mr. Whitman's rights.
04-1131 +++$+++ 13369 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He could have refused -- he could have refused the search, in which case if there was any significant personnel action taken against him for refusing it, he would have had judicial review of whether the search was constitutional or not.
04-1131 +++$+++ 13370 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Scalia, but he would have to bet the ranch to do it. And I think --
04-1131 +++$+++ 13371 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's often the case where -- where, in -- in order to challenge a governmental action, you -- you have to be willing to -- to go to court by resisting it.
04-1131 +++$+++ 13372 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, I think that's incorrect when it comes to Government agency actions of this kind. That's what the Abbott Laboratories case that we cite in our brief makes quite clear. And I think last week, just last week, this Court understood precisely that problem in talking about the doctor who faces the abortion statute in Ayotte. And several members of the Court pointed out that to risk your license there or to risk, in this case, a job that our client has held for 20 years in order to challenge whether his Fourth Amendment rights are violated is not normally how judicial review should be accomplished. And so the question here really is how judicial review should be accomplished, and we've maintained all along that the way judicial review should be accomplished here is the way that it's accomplished in all sorts of cases, by bringing an action in the Federal district court seeking injunctive relief. Now, what the Government --
04-1131 +++$+++ 13373 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Even though if -- if -- do you concede that if he had, for example, refused the testing and been fired and it was a major personnel action, he would have to go through the statutory procedures before bringing that -- the constitutional claim on review of those administrative procedures?
04-1131 +++$+++ 13374 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Mr. Chief Justice.
04-1131 +++$+++ 13375 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, doesn't it seem odd -- and this is sort of the logic of -- in Fausto and some of the other cases -- that when you have a major action, you have to exhaust before you can go into court, but if you have something that doesn't qualify as a major adverse action, you get to go to court right away?
04-1131 +++$+++ 13376 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I can see why that might seem at first a little strange to you, Your Honor. But the point of the CSRA is to deal not with major versus minor actions. It's true that minor actions you get administrative review and not judicial review, but that's about personnel actions. Mr. Whitman is not challenging a personnel action here. He's challenging a warrantless search. The warrantless search was the non-random, arbitrary urinalysis and breathalyzer to which he was subjected.
04-1131 +++$+++ 13377 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that search was a consequence of his employment. It -- this wasn't a search of a -- of a citizen who had no connection with the Government. It was a search that he was required to submit to as an employee. So to -- to describe it as unrelated to employee action seems to me unrealistic. The only reason he submitted to it was that if he didn't, he would have -- he would have been subject to an employee action.
04-1131 +++$+++ 13378 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Scalia. He was required, as a condition of his employment, to submit to constitutional drug testing. And his allegation in this case is that this drug test was unconstitutional and --
04-1131 +++$+++ 13379 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you think it becomes unconstitutional when -- when you have one more test? What did it become unconstitutional? The first test was not unconstitutional.
04-1131 +++$+++ 13380 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. It became unconstitutional when it became clear that at the Anchorage air traffic control facility, they were not complying with the requirements both of --
04-1131 +++$+++ 13381 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How many tests did he have?
04-1131 +++$+++ 13382 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, he alleges in his complaint that he was subjected to 13 tests, and then when he complained --
04-1131 +++$+++ 13383 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Over what period of time?
04-1131 +++$+++ 13384 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Over a period of time of approximately 5 years in which other employees were subjected to no more than one or two.
04-1131 +++$+++ 13385 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it's maybe three -- three a year? Is that what it was?
04-1131 +++$+++ 13386 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but he was picked --
04-1131 +++$+++ 13387 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And that's unconstitutional?
04-1131 +++$+++ 13388 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Stevens. His allegation is he was picked seven times in a row for random drug testing.
04-1131 +++$+++ 13389 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, somebody will be if it's random. If you have thousands of people, somebody will be if it is random. If there were nobody who was picked seven times, that would show it wasn't random. So, you know --
04-1131 +++$+++ 13390 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, and --
04-1131 +++$+++ 13391 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- whether he has a good constitutional claim here I guess is rather doubtful --
04-1131 +++$+++ 13392 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, he may well not. He may well lose on his constitutional claim, Justice Breyer, and that's not the issue before this Court. The question is whether a district judge should decide, should listen to the facts and decide whether this was random or not. I tried once to calculate what are the chances of --
04-1131 +++$+++ 13393 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What are they? How many people are there? How many people are tested if you try to calculate it? How many --
04-1131 +++$+++ 13394 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I tried to do it and I couldn't do it.
04-1131 +++$+++ 13395 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in the Federal Government?
04-1131 +++$+++ 13396 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it wouldn't --
04-1131 +++$+++ 13397 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All you do is you get a bell curve and you ask the Library of Congress and they'll do it --
04-1131 +++$+++ 13398 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, right, but it would be -- I -- I know. You know, I -- it -- my calculator doesn't go that high.
04-1131 +++$+++ 13399 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. It's -- it's not hard to do.
04-1131 +++$+++ 13400 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it's high.
04-1131 +++$+++ 13401 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it's not hard to do. You just ask someone at Stanford. They'll do it for you. (Laughter.)
04-1131 +++$+++ 13402 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the -- the --
04-1131 +++$+++ 13403 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's the undergraduates that know how to do that.
04-1131 +++$+++ 13404 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Regardless, this is beside the point. I -- all right. Can I -- I just want you at some point to get to not just the constitutional question. Maybe he can go in and raise his claim. I don't know if he should have exhausted or not, et cetera.
04-1131 +++$+++ 13405 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-1131 +++$+++ 13406 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I find it hard, in reading this, to believe the following. Like any other worker, I mean, normally you have a collective bargaining agreement, and the union takes up your minor thing. And here, what you're saying is although if it's a major thing, like a personnel action, there's a special thing where you get in -- you know, you -- you get into court way down the road. It's very complicated. This individual, even though he classifies it as a grievance where the union is supposed to take it up and the union tells him we're not going to take it up, we don't believe in your claim, that then he can run in to a Federal judge. Now, that -- that I find surprising, and I'd like you to explain how in your theory that works.
04-1131 +++$+++ 13407 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Breyer. The problem with assuming that a union will take a claim like this to arbitration is the following. Unions generally do not take individual employee grievances to arbitration, especially if you look at this collective bargaining agreement, which requires the union to pay the costs if they lose. Now, on a claim like this, for the very reason that you suggested earlier, it may be difficult to figure out what the facts are.
04-1131 +++$+++ 13408 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought your position, Ms. Karlan, was that he doesn't even have to ask the union. Justice Breyer is presenting a scenario where he asks the union and the union says we've got better things to do with our money.
04-1131 +++$+++ 13409 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
04-1131 +++$+++ 13410 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I think your position is he doesn't have to ask at all. He can go directly into Federal court under 1331.
04-1131 +++$+++ 13411 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. Just as, for example, the employees did in the NFFE against Weinberger case on which you sat in the court of appeals where the Government again there tried to argue there was no subject matter jurisdiction, and the court really gave that argument the back of its hand because traditionally the way that someone who wants to allege, someone who is an employee or not who wants to allege, that there -- that he's seeking injunctive relief for a constitutional violation, goes to the Federal district courts under 28 U.S.C. 1331, not to a negotiated grievance procedure that was not intended and cannot operate in the way that the Government seems to hope --
04-1131 +++$+++ 13412 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why -- why can't he?
04-1131 +++$+++ 13413 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why not? Because my -- when I first looked at this, I thought, well, this is the kind of thing that should have been -- should have been resolved at the grievance level, it shouldn't have even have to get to arbitration if he's right. He wants a survey to see if he's being picked on. If he is, there would be redress. So it seemed like this was the kind of complaint that was best handled in that kind of procedure.
04-1131 +++$+++ 13414 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I have two somewhat different answers to your question, Justice Ginsburg. One, which I'll turn to in a moment, is about the specifics of this case, but I want to give the more general one first. And that is, that the negotiated grievance procedures that unions set up are for the benefit of employees who believe that that is the best way of seeking to resolve their complaints, and most complaints, quite honestly, will be done that way. Most people are not going to go into Federal court, especially not if all they can seek is injunctive relief and they have to pay a filing fee and it's going to take a long time to go there. Now, Mr. Whitman had two problems that made it unlikely he was going to go through the grievance process here. The first of these problems is that the grievance process, as it sets -- as it's set out in the joint appendix, the two stages of which he has control -- and I can return in a moment to what happens after that. But the two stages at which he has control are to talk to his supervisor and to talk to the facility manager. When it comes to drug testing of the kind to which Mr. Whitman was subjected here, his supervisor does not have authority over that. It's done from outside the facility. So talking to his supervisor will not get him anywhere.
04-1131 +++$+++ 13415 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but that simply means that the grievance procedure is more valuable in this case than merely talking to his supervisor. And -- and the -- the issue -- maybe -- maybe we're missing it, but the issue is why isn't there a very good reason to require him to go through the grievance procedure, number one, to -- to cut down on needless Federal court actions and, number two, under the -- sort of the general policy of favoring what collective bargaining agreements negotiate.
04-1131 +++$+++ 13416 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if his union had negotiated a collective bargaining agreement that required exhaustion, then it would be appropriate to make him go through it, but they didn't do that.
04-1131 +++$+++ 13417 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but -- no -- no question. That would be an easier case. But why shouldn't we require an exhaustion for those two reasons and maybe others?
04-1131 +++$+++ 13418 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if I could go through the grievance process, I think you'll see why this grievance process cannot be turned into an exhaustion process without this Court, in words that Justice Ginsburg used last week, inserting a lot of carets into the statute. That is, there are two stages of this grievance process over which Mr. Whitman has control. He can go to his -- his supervisor in an informal conversation. There will be no factfinding. There is no right to call witnesses. There is no right to present evidence. If he doesn't like that -- and he has only 15 days to do it -- he can then appeal to the -- to the supervisor of the facility. Again, he has no right to present evidence. He has no right to any kind of factfinding. He has no right to a reasoned decision. Those are the --
04-1131 +++$+++ 13419 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He may not have any right to it, but in fact, he may get some relief.
04-1131 +++$+++ 13420 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1131 +++$+++ 13421 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The union may say, okay, we're going to take this one up.
04-1131 +++$+++ 13422 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They may and I'll turn to that in just a moment, but let me add one more thing to the answer I was giving a moment ago to Justice Ginsburg, which is one of the problems here is that our client alleges in his supplemental complaint that when he first complained about this, he was singled out yet again for retaliatory testing. And so this is precisely the kind of case in which someone who is being subjected repeatedly to retaliatory tests would be worried. Now let me turn to the question of --
04-1131 +++$+++ 13423 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Well, Ms. Karlan, let me put one other element in here. Was -- was your client specifically told by the FLRA to bring a grievance under the collective bargaining agreement?
04-1131 +++$+++ 13424 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He was -- he wasn't told. He was advised by someone who said the FLRA has no jurisdiction here because this isn't an unfair labor practice. Now, of course, what the Government wants him to do is to exhaust by going back to the FLRA which has already told him that it has no expertise on this matter. So let me turn to that third stage of the grievance process now, which is now he invokes arbitration, or at least he asks his union to because under section 7121(b)(1)(C)(iii) of the statute, only the union can invoke arbitration. Now, this Court noted, as long ago as Vaca against Sipes, that unions invoke arbitration in only a minuscule handful of cases, so that in Vaca against Sipes, it was 1 out of 900. There was a recent study, the most recent study I could find that was published, about Federal Government employees, dealt with civilian employees of the Army, and it looked at how often did the 31 different unions that represent civilian employees of the Army actually invoke arbitration vis-a-vis the number of grievances that were filed. And it found that in the years it looked at, no more than 6 percent got arbitration.
04-1131 +++$+++ 13425 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why isn't the thing to do here -- I -- I see that you are raising a significant question in respect to -- at least in my view, in respect to the -- an action that violates a regulation that violates a statute. Leave the Constitution aside, but it might violate a number of practices, good practices, et cetera. But why isn't focusing on that the thing for the plaintiff here to do is he goes to the union -- I'm just reading from page 6 and 7 of your brief -- and he says, I would like you to invoke arbitration? And they might do it. Now, if they do it and it comes out a way they don't like, he then -- they might file exceptions and they might win. But what you're worried about is if they don't win or if they don't do it, they can go to court only if it involved an unfair labor practice or a major adverse personnel action. That's what's worrying you, I take it.
04-1131 +++$+++ 13426 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-1131 +++$+++ 13427 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why isn't it, at that stage if he doesn't get into court, you then say that that isn't true? They should be able to come to court in other instances as well, making the same kinds of arguments that you're making now.
04-1131 +++$+++ 13428 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there are two reasons for that I think. One is he suffers an irreparable bet-the-farm injury every time he's searched unconstitutionally. The second is that the statute simply doesn't say that. I can understand -- honestly, I can -- why this Court is in favor of exhaustion requirements. And if the statute contained one, it would be eminently sensible for you to apply it.
04-1131 +++$+++ 13429 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You -- you -- I -- I believe that there are millions of instances, perhaps. Now, I'm -- when I think something like this, I'm quite often wrong. But I thought that the reason that exhaustion is required is not always because statutes require it. It's partly because of the word final in the APA, which applies here as well, and it's also because of the common law of administrative law that requires people to exhaust their remedies.
04-1131 +++$+++ 13430 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, and I think if you used this Court's opinion in Madigan against McCarthy as your template for thinking about whether to impose an exhaustion requirement here, because I think, quite frankly, that's what you would be doing -- you would be imposing one that doesn't exist now.
04-1131 +++$+++ 13431 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but the -- the --
04-1131 +++$+++ 13432 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Court --
04-1131 +++$+++ 13433 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the whole right to -- to go into court with a constitutional claim is absent from the statute. And -- and so we may as well get hung for a sheep as a lamb. If -- if we're going to recognize the one, I don't see that we're going too much further in -- in saying it's got to be conditional on the other.
04-1131 +++$+++ 13434 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I don't think so, Justice Souter, because I think this Court has traditionally allowed individuals who are bringing constitutional claims for injunctive relief to seek that relief. Nothing in the CSRA changed that, and if I can explain why for just a moment, I think it'll be helpful. If you look at this Court's opinion in Fausto or you look at this Court's opinion in Bush against Lucas or the opinion in Karahalios, which I think are the three leading cases from this Court construing the Civil Service Reform Act in -- in this kind of fashion, you'll notice that they repeatedly refer to those acts as being comprehensive with regard to personnel actions. Personnel actions is not a casual phrase. It is a defined term in the CSRA. It's defined in section 2302(a), which is -- was discussed in the Government's brief at page 5, note 5. And you will notice there, if you read it, that they do include -- indeed, Congress in 1994 amended the statute to add to the list of personnel actions orders for psychiatric testing. There was nothing here that turns a drug test into a personnel action. Now, the CSRA is absolutely comprehensive in its field, but its field is personnel actions. And this case is not a personnel action.
04-1131 +++$+++ 13435 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the grievance procedure covers it, and you took pains to point out to us that when you go to the grievance procedure, you're not necessarily entitled to findings and -- and written conclusions, et cetera. But there's a reason for that. The reason for that is that these things can be very, very minor. So now you're saying that just because of -- the grievance procedure doesn't entitle you necessarily to findings, et cetera, that you can go into court. But the only reason you don't get those findings is because we know, going in, that they're so minor. So now the most minor things go to court. That seems very anomalous.
04-1131 +++$+++ 13436 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, all sorts of personnel actions might be minor and they might be the kind of thing that the CSRA wants to have decided administratively only or through exhaustion. This is a Fourth Amendment violation. It is not minor. As this Court held in Von Raab, the only thing that makes this kind of test constitutional --
04-1131 +++$+++ 13437 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I have to interrupt you. What is the Fourth Amendment violation?
04-1131 +++$+++ 13438 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Fourth Amendment violation here is this Court said that warrantless, suspicionless drug testing of Federal employees is acceptable only if it has safeguards that ensure that there is no discretion exercised in the field and that it's truly random.
04-1131 +++$+++ 13439 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ As I understand, the allegations are that there was random procedure in effect, and he thinks maybe he's been tested more frequently than some other people. That's all.
04-1131 +++$+++ 13440 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. He alleges that they are not, in fact, following the random procedures, that instead, when it's more convenient for them to test him -- and I can understand why they want to test him. Every time they test him he passes the test. So why not ask Mr. Whitman who is a compliant, sober employee, if you need another person to just round out the numbers to --
04-1131 +++$+++ 13441 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but as I understand it, the -- the system as a whole is not challenged as violating the Fourth Amendment.
04-1131 +++$+++ 13442 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The operation of the system, as it applies to Mr. Whitman in Anchorage.
04-1131 +++$+++ 13443 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ By having him take more tests than would be produced by a purely random selection.
04-1131 +++$+++ 13444 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. And then by retaliating --
04-1131 +++$+++ 13445 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Have we ever said that's a Fourth Amendment violation?
04-1131 +++$+++ 13446 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of course it is, because you can't conduct a random --
04-1131 +++$+++ 13447 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If the computer malfunctions, that's a Fourth Amendment violation?
04-1131 +++$+++ 13448 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. And if the Government -- the Government in its answer in the district court does not say there was a computer malfunction. They say we don't really even keep records back as long as he --
04-1131 +++$+++ 13449 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the relief that he requested was to do a little more testing to see whether he was being tested more than the average person, as I understand it.
04-1131 +++$+++ 13450 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well -- well, yes. Of course, he was proceeding pro se in the district court.
04-1131 +++$+++ 13451 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which is not -- did not seem to me to be alleging a violation of the Fourth Amendment.
04-1131 +++$+++ 13452 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. He -- he did. He said it is not random, and then in his supplemental complaint, he alleged that he was retaliated against for complaining the first time around and was selected out when he wasn't on the list to be tested yet again.
04-1131 +++$+++ 13453 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. -- Ms. Karlan, if this is indeed serious, are you sure that it's not a personnel action?
04-1131 +++$+++ 13454 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1131 +++$+++ 13455 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There is a residual category in the definition of personnel action which says, any other significant change in duties, responsibilities, or working conditions. That's the residual category. But one of the specifically named categories, before you get to that, is a decision to order psychiatric testing. Now, if that kind of a decision could be a personnel action, why couldn't a decision to conduct -- to conduct a drug test be considered a personnel action?
04-1131 +++$+++ 13456 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, two answers to that. One is the fact that Congress -- in 1978 they first gave the entire list of personnel actions. In 1994, they amended that list to add psychiatric testing. This is after the Government has already been engaged in urine testing of Federal employees. If they wanted to say drug testing, they would have said it. And for you to add that is really --
04-1131 +++$+++ 13457 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm not adding it. There's a residual category at the end: or any other significant change in duties, responsibilities, or working conditions. I consider this -- you consider it a significant change in working conditions.
04-1131 +++$+++ 13458 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With all respect --
04-1131 +++$+++ 13459 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And he thought he didn't have to undergo drug testing, and what do you know? He's being picked on for drug testing all the time.
04-1131 +++$+++ 13460 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, with all respect, Your Honor, I think you would have to overrule the Fort Stewart School against FLRA case that the Court decided in 1990 to define working conditions to include a drug test because there -- and it's cited at page 28 of the NTEU's brief -- the Court says that the term, working conditions, refers to, quote, circumstances or states of affairs attendant to one's performance of a job. Now, drug testing is not attendant to his performance of his job. It is the condition of his holding the job in some sense that he pass the test. And if he failed that test, he would, indeed, have to go through the CSRA. But because he passed the test, he has no way of getting into court. Now, if I could turn --
04-1131 +++$+++ 13461 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why then would a decision to order psychiatric testing qualify? Because it says, or any other. Right?
04-1131 +++$+++ 13462 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's --
04-1131 +++$+++ 13463 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Significant change in duties, responsibilities, or working conditions. The implication is that a decision to order psychiatric testing is a significant change in duties, responsibilities, or -- or working conditions.
04-1131 +++$+++ 13464 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But if the -- but if Congress, Justice Scalia, had thought that that catchall phrase covered psychiatric tests, it would not have amended the statute in 1994 to add them specifically.
04-1131 +++$+++ 13465 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's always good to be safe.
04-1131 +++$+++ 13466 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, yes, and it's good for the FAA to comply with the Constitution. And that's why we think he should be allowed to go to Federal court.
04-1131 +++$+++ 13467 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. -- Ms. Karlan, you have a -- a statutory claim that essentially mirrors the constitutional claim. The statute requires the testing to be random and impartial. If we think there's a difference between the constitutional claims and statutory claims with respect to their treatment under the CSRA, how do you handle that? Does he have to exhaust the statutory claim but not the constitutional one?
04-1131 +++$+++ 13468 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that there would be a difference with respect to exhaustion on those two claims. The Government simply says he can never get review of the statutory claim. So I don't think anyone here is arguing that there should be a differential treatment with respect to exhaustion. It's with respect to whether you can get into court --
04-1131 +++$+++ 13469 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you -- you agree with the Government on that, that he can never get review of the statutory claim.
04-1131 +++$+++ 13470 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, no.
04-1131 +++$+++ 13471 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, well.
04-1131 +++$+++ 13472 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We spend rather a bit of time in our brief explaining --
04-1131 +++$+++ 13473 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, don't -- don't appeal to them on a -- on a point on which you don't agree with them. I mean --
04-1131 +++$+++ 13474 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What can I -- what can I say?
04-1131 +++$+++ 13475 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I still don't understand how they proceed. Does he have to bring -- can he go right into court on the constitutional claim even if the statutory claim has to go through the grievance procedure?
04-1131 +++$+++ 13476 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The answer to that would be yes. He might end up being precluded, if he lost in Federal court on the constitutional claim, from coming back on the statutory claim.
04-1131 +++$+++ 13477 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So the identical claims have to proceed under two different routes.
04-1131 +++$+++ 13478 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. We don't think there is exhaustion required with respect to either set of claims. If I may, I'll reserve the balance of my time.
04-1131 +++$+++ 13479 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. Mr. Stewart.
04-1131 +++$+++ 13481 +++$+++ FALSE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Although Congress has not clearly expressed an intent to foreclose all judicial review of petitioner's constitutional claim, such review should be conducted in a manner that is as consistent as possible with the text and structure of the CSRA. Because petitioner failed to invoke the grievance procedures of the applicable collective bargaining agreement, his suit was properly dismissed. And if I may, just in a -- a moment or two, summarize the Government's position as to the steps that an individual in petitioner's position would have to take in order to obtain judicial review of a constitutional claim like this one. First, the employee must make all reasonable efforts to utilize the available administrative remedies under the CSRA itself, including any applicable collective bargaining agreement. So in this instance, the first two steps of the grievance process, talking to the immediate supervisor and then to the facility manager, would have been within petitioner's control. And if those steps had proven unavailing, petitioner should have requested that the union take the case to arbitration, and then, if necessary, to the FLRA. Second, if at the end of the administrative process an avenue of judicial review is available under the CSRA itself, the employee must seek relief pursuant to that provision. And I think petitioner really concedes that point to be true; that is, if petitioner were raising a constitutional challenge to a major adverse action, such as dismissal, petitioner concedes not only that he would have been required to exhaust administrative remedies by -- by appealing to the Merit Systems Protection Board, but petitioner also concedes that we -- he would have had to seek judicial review in the manner specified by the CSRA, that is, by filing a petition for review of the MSPB's decision in the Federal Circuit, rather than proceeding directly to district court. And finally, our position is that if at the conclusion of the administrative process, judicial review is unavailable under the CSRA, the employee may then obtain review of his constitutional challenge alone in district court, pursuant to the Administrative Procedure -- Procedure Act. Now, in some sense, there is an element of untidiness in our position because what we're trying to do is reconcile Congress' intent to adopt --
04-1131 +++$+++ 13482 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Stewart, can I just ask one question? Because I didn't quite follow it. I thought you were describing a major personnel action in -- in your description of the administrative review. But if this is a minor or whatever, a lesser review, would there have been an avenue through the administrative agency?
04-1131 +++$+++ 13483 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There would have been, at least for this employee, by virtue of the fact that he was covered by a collective bargaining agreement.
04-1131 +++$+++ 13484 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Through the collective bargaining --
04-1131 +++$+++ 13485 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1131 +++$+++ 13486 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But then supposing the union is unwilling to grieve or take it up or he fails, then what happens?
04-1131 +++$+++ 13487 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If -- if he requests that the union take the grievance to arbitration and then to the FLRA and the union refuses, our position would be that he could then file suit in Federal district court under the Administrative Procedure Act on his constitutional challenge alone. That is, we think on the one --
04-1131 +++$+++ 13488 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it would be in the district court.
04-1131 +++$+++ 13489 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would be in the district court --
04-1131 +++$+++ 13490 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Now, that is if -- if the union doesn't agree to arbitration?
04-1131 +++$+++ 13491 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is if the union does not agree to take the case to arbitration and then to the FLRA. If --
04-1131 +++$+++ 13492 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So your difference -- what's separating you and Whitman, it seems, is a question of timing. The action that you're describing that would come at the end, after he's used the administrative process, is the same one that he is seeking to bring at the front end. That is, it's a 1331 action --
04-1131 +++$+++ 13493 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think --
04-1131 +++$+++ 13494 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and -- and it's based on the Government's waiver of sovereign immunity for nonmonetary claims.
04-1131 +++$+++ 13495 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is in part one of timing, but it's not one of timing alone. That is, our position is if Mr. Whitman had been successful in prevailing upon the union to take the case to arbitration and then to the FLRA, the position we've taken in the brief is that judicial review, if the FLRA had rendered an unfavorable decision, would most appropriately be accomplished in the court of appeals pursuant to the CSRA. But our position is if the union is unwilling to take the grievance to the point where the ruling can be reviewed under the provisions of the CSRA itself, that the APA remains available as a fallback. But the -- the fact that it's one of timing doesn't make it an insignificant difference. That is --
04-1131 +++$+++ 13496 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Stewart, you know, you have here a statute in which Congress, with malice aforethought, very clearly provides for judicial review of any major personnel actions and does not provide for judicial review of what it had regarded as insignificant personnel actions. I can understand the position, although I don't agree with it, that the constitutional provision which says Congress can -- can make exceptions to the jurisdiction of the Federal courts should not be interpreted to exclude significant constitutional claims. But when Congress has gone to the trouble of providing for judicial review of any claims that are significant and just saying any other insignificant action, even though a constitutional violation is alleged in connection with it, if in fact it does not harm you that much, we're not going to allow judicial review, what is -- what is wrong with that? It seems to me that's what Congress has said and -- and you're creating a scheme that simply contradicts what Congress plainly said.
04-1131 +++$+++ 13497 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, first, certainly if Congress had said with absolute clarity that district court review of claims like this is precluded, we would defend the statute as constitutional. Second, I agree with you that the fairest reading, the most likely interpretation of Congress' intent is that claims of this nature -- that is, complaints about aspects of the employment relationship that don't rise to the level of personnel actions. The fairest reading of Congress' intent is that such suits would be precluded. However, this Court in a number of prior decisions has required something more than that before inferring that Congress has barred all judicial review of a colorable constitutional claim.
04-1131 +++$+++ 13498 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did any of them involve a situation in which Congress took the pain to separate significant actions from insignificant actions?
04-1131 +++$+++ 13499 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, in some sense the CSRA --
04-1131 +++$+++ 13500 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, some of them involve deportation and, you know, major -- major actions. This is a case where Congress has -- has carefully tried to say these are major actions for which you should be able to get into the courts. And these other things -- you -- you have these administrative remedies, but that's the end of it.
04-1131 +++$+++ 13501 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I -- I think the flip side of it is that some of those cases involved statutes that appeared on their face to function as express preclusions of judicial review. Here, we don't have that. Here, the argument as to why Administrative Procedure Act review is precluded is not based on the text of any CSRA provision standing alone. It's based --
04-1131 +++$+++ 13502 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I'm -- I'm not sure what the congressional intent would be to bifurcate the constitutional and the statutory claims, especially if they're the same thing.
04-1131 +++$+++ 13503 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know that there was necessarily an intent to bifurcate, but I think we had the same --
04-1131 +++$+++ 13504 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's what -- that's what you're asking us to say.
04-1131 +++$+++ 13505 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the Court had the same situation in Webster v. Doe. That is, in Webster v. Doe, the Court concluded that given the limits on review of the CIA director's employment decisions and given the great sensitivity of hiring and firing matters within that agency, the Court concluded that there was simply no law to apply in review of the -- the claimant's complaint under the Administrative Procedure Act. Nevertheless, the Court concluded that judicial review of the constitutional challenge remained available. And the idea was not so much that Congress itself had manifested an intent to differentiate between the two types of claims. It was that Congress had treated the two types of claims the same but that the type of evidence that will suffice to eliminate judicial review of a non-constitutional claim is -- it's less demanding than the type that the Court would require before eliminating judicial review of a constitutional claim.
04-1131 +++$+++ 13506 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if -- if -- under -- under your explanation of how the system works, you go to district court with a constitutional claim. He's -- he -- the district court doesn't have to reach the statutory claim first?
04-1131 +++$+++ 13507 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. The statutory claim wouldn't be before the district court. Again, if -- if the --
04-1131 +++$+++ 13508 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's what I mean. This is a very odd system where you have to immediately go to the constitutional claim and you're foreclosed from looking at the statutory claim.
04-1131 +++$+++ 13509 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I agree that it's an unusual system, but I think it -- and in a sense the same situation would have been present in Webster v. Doe, that is, the Court, when it came to review the merits of the constitutional challenge, wouldn't have had any possibility of deciding the case on a non-constitutional basis because non-constitutional challenges would be foreclosed. Now --
04-1131 +++$+++ 13510 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought your position on the statute was that it doesn't afford a right of action, that it was just an instruction to the Secretary. Maybe I misread your position on the statute. We're talking about 45-1048?
04-1131 +++$+++ 13511 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1131 +++$+++ 13512 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought that the Government's position was there's no right of action under that statute.
04-1131 +++$+++ 13513 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's no private right of action conferred by 45-108 itself. Now, in the ordinary case, when a Federal statute places limits on agency personnel and a particular category of plaintiffs falls within the zone of interest that was intended to be protected by that provision, then even if the statute that limits agency discretion itself doesn't provide a private right of action, the Administrative Procedure Act would entitle a claimant to get into court and argue that the agency's decision was contrary to law, namely the relevant statute. So if there were no question of CSRA conclusion, we would agree that the claimant could go into court raising a statutory challenge notwithstanding the absence of a private right of action in 45-108 itself. Here, we think that the evidence from the comprehensive congressional scheme is sufficient to divest the courts of jurisdiction over the statutory claim. We don't think that Congress has spoken with the clarity that this Court has required to divest the courts of jurisdiction over the constitutional challenge.
04-1131 +++$+++ 13514 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Now, as to that, if -- if there were a petitioner with some constitutional claim -- let's not get into the debate about significant or non-significant -- covered by the collective bargaining agreement, you say the petitioner can't go to court with the constitutional claim unless he first persuades the union to seek arbitration.
04-1131 +++$+++ 13515 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. We're saying that he first has to attempt to persuade the union to seek arbitration. That is, he has to make all reasonable efforts to utilize the full range of administrative remedies. But it -- our -- our position is if the union declines that request, then judicial review would be available at the end of the day in Federal district court.
04-1131 +++$+++ 13516 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ All right. Now, did you raise the exhaustion claim? Did the Government raise it in the lower courts?
04-1131 +++$+++ 13517 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We didn't characterize it as an exhaustion argument. That is, the district court alluded to the petitioner's failure to exhaust in dismissing the suit. However, we -- this is not a case in which we have, up to this point, litigated the merits of the Fourth Amendment dispute and then switched to a threshold objection to adjudication. We've always argued that the suit was barred by the CSRA scheme, and we've always pointed out that the petitioner did not take advantage of the administrative remedies that were available to him. Really, the only change in our position is that we have been in the -- in this Court have been willing to acknowledge that in the hypothetical case where someone in petitioner's position did make -- take full advantage or make reasonable efforts to take full advantage of the administrative processes, that judicial review would be available.
04-1131 +++$+++ 13518 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. So I guess you're saying, as to the constitutional claim, it's obvious they have to exhaust. There's no reason why they don't have to exhaust in respect to the 12th test, which has already occurred, and in respect to the 15th, which might be threatened, if it does come about that it's threatened, they can go in, I guess, under 705 of the APA and ask for an injunction. Any reason they couldn't do that?
04-1131 +++$+++ 13519 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they would first have to get into court first. They would first --
04-1131 +++$+++ 13520 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. What they do is they follow, like any other agency action. An agency action has taken place. I think it's unconstitutional or you do. We exhaust our remedies and then get to court at the end of the day and make our claim. An agency action is threatened. I am threatened with irreparable injury. I can go to court, I think, at the time it's threatened, and say I want a protective order. I think 705 provides for that specifically. And -- and, therefore, I'm protected. I can't imagine why they couldn't do that if they have a -- not just a plausible, but a -- a good claim that it does violate the Constitution and they need the protection. Is there any reason they couldn't?
04-1131 +++$+++ 13521 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I mean, again with the caveat they would first have to avail themselves of the administrative --
04-1131 +++$+++ 13522 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, they wouldn't. Their point is that the very -- availing myself of the administrative remedy will work irreparable harm of -- in violation of my constitutional right. Now, maybe that's not true, but let's imagine it's true. Then couldn't they go in and ask for a protective order? I thought that you could do that, but I might be wrong.
04-1131 +++$+++ 13523 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, I think you're -- you're correct that you could do that in the general run of cases under the administrative --
04-1131 +++$+++ 13524 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. And is there any reason that they shouldn't be able to do that here? Because they are going to say that -- I don't know they ever can make it out in this case, but they are going to say that my having to go ahead with the number -- test number 15, which, by the way, may never be threatened, but if it is, it will, the very fact that I have to do it, violate an important constitutional right that I need to have protected before undergoing the text -- the test.
04-1131 +++$+++ 13525 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. In -- in our view, in harmonizing the -- the principle that judicial review --
04-1131 +++$+++ 13526 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-1131 +++$+++ 13527 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- will ordinarily be available for a constitutional claim with the remedial scheme established by the CSRA --
04-1131 +++$+++ 13528 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You think they could not do that under 705. So there is a difference between you on that. As to the statutory claim, I mean, I find -- but others may disagree with this. It's my personal view that the notion of private right of action in this area simply mixes things up. It's apples and oranges. It has nothing to do with anything. That if a person, in fact, is adversely affected or aggrieved by a Government action, he usually, almost always, indeed, can get judicial review eventually. But what you're saying there I take it is that may be so, but this impliedly says no.
04-1131 +++$+++ 13529 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-1131 +++$+++ 13530 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, my question is do we have to decide that. Because, after all, this individual may get relief through the statutory procedures that you admit are provided by asking for grievance arbitration. He may, the first time he asks for it, be given a piece of paper that shows him he wasn't hurt. Or he may have been hurt, and they'll say we don't it again. There are a lot of things that can happen. Do we have to decide the issue today of whether if he goes to the union, the union says we won't arbitrate, or they say we will and they lose and it isn't as an unfair labor practice -- do we have to decide that issue as to whether a person in those circumstances can then subsequently go into court?
04-1131 +++$+++ 13531 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I think you could certainly decide the case on the ground that an individual who has made no effort to utilize the grievance procedures that are available under the collective bargaining agreement, can't bypass those procedures entirely by filing suit into -- in Federal district court. And it wouldn't be necessary for the Court to resolve --
04-1131 +++$+++ 13532 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So we have to say the easier matter is it's clear that as to such matters, you must exhaust. It's so clear that there is no reason for us to decide whether there is an implied repeal of the right at the end of some days to -- to judicial review, a matter which is disfavored in the law.
04-1131 +++$+++ 13533 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, certainly to -- I mean, that is, justifiably to impose an exhaustion requirement, the Court would have to find that the -- the exhaustion principle is in some sense implicit in the CSRA.
04-1131 +++$+++ 13534 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I might. My -- so I don't know why it wouldn't be.
04-1131 +++$+++ 13535 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I think that there's ample basis for the Court to do that -- that is, one of the noteworthy features of the CSRA is that the act authorizes judicial review of a wide category of Government actions in different courts under different circumstances. But there's no provision of the CSRA that ever gives a plaintiff a right of immediate access to a Federal district court. That is --
04-1131 +++$+++ 13536 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Well, is -- is -- should it be a little bit of a concern to us that the lower court didn't address it? Should it be sent back to look at this exhaustion notion?
04-1131 +++$+++ 13537 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, I think it's clear -- it -- it is clear and undisputed that the plaintiff was advised by the FLRA that the grievance procedure was his available remedy and declined to invoke even the initial step of the grievance procedure, and therefore --
04-1131 +++$+++ 13538 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that was on the view that it was an exclusive remedy. The -- the statute is not written in -- in any way as an exhaustion requirement. It says you've got a minor grievance -- issue. You go through the grievance procedure. There is no judicial review at the end of the line. So you would be converting something that Congress wrote to be an exclusive remedy into an exhaustion requirement.
04-1131 +++$+++ 13539 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I think -- I think that's why I said earlier that there was some element of untidiness to our position. That is, we're not contending that this was precisely the scheme that Congress envisioned. But our -- our -- the Court's task, I believe, is to reconcile Congress' apparent intent -- attempt to construct a comprehensive scheme that --
04-1131 +++$+++ 13540 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you -- you have picked one way to do that. You say go through the grievance procedure. If there's a constitutional question remaining, if you haven't been satisfied, then you bring the action in court. Another way to say is, well, as long as we're making this up, why not allow the -- the action to proceed at once in court, but then the court to say, I'm going to abstain while you go through the grievance procedure.
04-1131 +++$+++ 13541 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I mean, I guess we would -- we would resist the notion that we're making it all up. That is, whenever Congress -- whenever this Court attempts to harmonize two distinct statutes to make them -- in order that they would make sense taken together, the result is likely to be that neither statute will be read in precisely --
04-1131 +++$+++ 13542 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, I --
04-1131 +++$+++ 13543 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's the second statute? There's no second statute here. There -- there is your concession of the fact that there has to be judicial review. That's what's driving all of this. And -- and generally speaking, when we find something to be unconstitutional, we don't rewrite a statute so that it will be constitutional. We just say, you know, there has to be judicial review.
04-1131 +++$+++ 13544 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is a -- a second statute, and it's the Administrative Procedure Act, which would generally allow an individual who is aggrieved by Federal Government action to file suit in court. And the question is whether Congress has manifested with sufficient clarity its intent to divest the court of jurisdiction under the --
04-1131 +++$+++ 13545 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Stewart, if you assume the APA is the remedy -- we're talking about a district court procedure -- how would you describe the final agency action that would be challenged in that lawsuit?
04-1131 +++$+++ 13546 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, it really depends upon the extent to which -- it really depends on where the administrative procedures go. That is, the APA is --
04-1131 +++$+++ 13547 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's assume that the -- he seeks a grievance, and the union refuses to grieve. And then he then goes into -- into district court under the APA. What would the final agency action be in your view?
04-1131 +++$+++ 13548 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The final -- it's -- it's a little bit hard to define. It would in some sense be --
04-1131 +++$+++ 13549 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Very hard to define.
04-1131 +++$+++ 13550 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it would in some sense be the allegedly unconstitutional drug test that he's already been required to take. One of the things that makes this --
04-1131 +++$+++ 13551 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So what would his relief be? He can untake it.
04-1131 +++$+++ 13552 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly. And one -- one of the --
04-1131 +++$+++ 13553 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because he can't damages under the APA.
04-1131 +++$+++ 13554 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ One of the things that makes this tricky is that under this Court's decision of City of Los Angeles v. Lyons, if an individual is subjected to allegedly unconstitutional conduct but has no reason to believe that it will happen to him again and damages are unavailable, then the -- there is no standing to seek injunctive --
04-1131 +++$+++ 13555 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but here, that's not this case because he said, and when I complained, they did it again.
04-1131 +++$+++ 13556 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. And I think in a sense what you could say is the -- the agency action that he would be complaining about in the APA suit is not so much the past drug test, it would be the threatened or ostensibly threatened drug test. And his basis for believing that they were, in fact, likely to occur is that he had been subjected to unconstitutional drug tests in the past.
04-1131 +++$+++ 13557 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's not a final agency action. The threat of another test isn't a final agency action, is it?
04-1131 +++$+++ 13558 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would certainly think that if -- if there were no question of CSRA preclusion, if we were just looking at the APA standing alone, and an individual said they've done this unconstitutional thing to me time after time, my supervisor has ransacked my office time and again or FBI agents have shown up at my door every day and have insisted on searching, I think even if damages were unavailable for the prior unlawful actions, at some point we would say the likelihood of repetition is sufficiently imminent that a right of action should be available in court. And -- but again, I think all of these are perhaps potential alternative bases on which this complaint could have been dismissed, but it doesn't alter the fact that an adequate basis for dismissal was the failure to invoke the grievance procedures available under the CSRA and the collective bargaining agreement. And I think it's not simply a -- to say that it's simply a question of when the individual can file suit is to presuppose that the grievance procedures won't work. And there's no reason to assume that that will happen. That is, Congress manifested -- Congress in the CSRA enacted congressional findings to the effect that collective bargaining and -- and union activity in the public sector are in the public interest. It specifically required that collective bargaining agreements under the CSRA should contain grievance procedures for the resolution of disputes, and I think --
04-1131 +++$+++ 13559 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ If the dispute were to go to arbitration -- there are very limited provisions for judicial review in the event there is a decision -- could the constitutional claim still go to court?
04-1131 +++$+++ 13560 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The constitutional claim could go to court, and what -- what we've sketched out in the brief is two alternative routes for judicial review in the event that the grievance was processed to its conclusion, that is, a finding by the FLRA. On the one hand, it would be possible to invoke the provision of the CSRA that specifically refers to judicial review of FLRA decisions generally, and that provides for review either in the regional courts of appeals or in the D.C. Circuit. However, it -- there is a difficulty with the statutory language in the sense that that provision that authorizes court of appeals review specifically excludes FLRA decisions on grievances. And therefore, if the Court felt like that sort of tweaking of the statutory language was just too much to tolerate, then the available remedy would be in the Federal district court.
04-1131 +++$+++ 13561 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Am I right that the statute as written says you don't have any judicial review for these kinds of actions? You go through the grievance procedure, win or lose. That's it. There is no judicial review.
04-1131 +++$+++ 13562 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It doesn't say you have no judicial review. It -- the -- the provision that would otherwise authorize judicial review in the courts of appeals of FLRA actions is made inapplicable to grievance procedures.
04-1131 +++$+++ 13563 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The statute does not provide for judicial review --
04-1131 +++$+++ 13564 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly, but the --
04-1131 +++$+++ 13565 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- as it does in the case of major actions.
04-1131 +++$+++ 13566 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the statute -- the CSRA does not say -- does not purport to divest the courts of the authority that they would otherwise have under different statutes to adjudicate challenges to employment decisions. Now --
04-1131 +++$+++ 13567 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Stewart, if -- if we're going to tweak the statute, isn't the least possible tweak -- and perhaps not a tweak at all -- simply to consider this a personnel action?
04-1131 +++$+++ 13568 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the Court --
04-1131 +++$+++ 13569 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If -- if a decision to order psychiatric testing can be one, why can't a decision to require drug testing be one?
04-1131 +++$+++ 13570 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that would be a possible tweak. I'm not sure if it would --
04-1131 +++$+++ 13571 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not sure it's a tweak at all. It -- it just depends on -- on what you consider to be working conditions. And in -- in many contexts, we've given the broadest possible interpretation to working conditions.
04-1131 +++$+++ 13572 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that would be a basis for dismissal in this case. I was going to say I'm not sure whether that would solve the problem from petitioner's standpoint because --
04-1131 +++$+++ 13573 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it would mean you don't get into court at all then. Right?
04-1131 +++$+++ 13574 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would -- the -- the remedy for a -- an alleged prohibited personnel practice -- and, I think, an unconstitutional personnel action would be a prohibited personnel practice under the statute. The remedy for that is to complain to the Office of Special Counsel. Now, if the Office of Special Counsel seeks corrective action with the Merit Systems Protection Board and the MSPB issues a decision unfavorable to the employee, then the employee, under the terms of the CSRA itself, can seek judicial review of the MSPB's decision in the Federal Circuit. So there would be a potential route --
04-1131 +++$+++ 13575 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even in the -- even if it's not a major personnel action?
04-1131 +++$+++ 13576 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, if -- again, if the OSC asked for a corrective action in the MSPB. Now, if the OSC processes the complaint and concludes either that the factual allegations are unsubstantiated or that the allegations, even if true, wouldn't constitute a prohibited personnel practice and terminates the investigation on that basis, there's no avenue for judicial review under the terms of the CSRA of the -- the OSC's decision to dismiss the complaint. So I think that the -- the route you've sketched out might, at the end of the day, lead to judicial review without any tweaking of the statute. But if the OSC dismissed the complaint, we would still be left with the problem of --
04-1131 +++$+++ 13577 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What their brief says is that they can go on a personnel, as opposed to major personnel, to the OSC if, and only if, the complaint has to do with whistleblowing.
04-1131 +++$+++ 13578 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. And that -- that's --
04-1131 +++$+++ 13579 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And this doesn't have to do with whistleblowing.
04-1131 +++$+++ 13580 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that's correct.
04-1131 +++$+++ 13581 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And therefore, even if this were a personnel action, that route to the OSC is not open to them.
04-1131 +++$+++ 13582 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that is the position that they've taken in the brief. The position of the --
04-1131 +++$+++ 13583 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that true? What do you think?
04-1131 +++$+++ 13584 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the position of the OSC and the Department of Justice is that OSC's jurisdiction over FAA employees is not limited to whistleblower complaints. Now -- now, it's clear that in the run of complaints, with respect to employees of other Federal agencies, I don't think there's any dispute between the parties that OSC's jurisdiction would extend beyond whistleblower complaints. The -- the only point of dispute is with respect to the FAA.
04-1131 +++$+++ 13585 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Stewart, let me just be sure I understand. In the Government's view, is it a personnel action or is it not?
04-1131 +++$+++ 13586 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it's not. And indeed, in footnote 28 of this Court's decision in Bush v. Lucas, the Court specifically identified warrantless searches as an example of conduct in which an employer might engage towards its employees that would not constitute a personnel action. And we think that's good authority for the proposition that an allegedly unconstitutional drug test is not a personnel action. Now, if the employee had refused to take the test and been dismissed or disciplined, that would be a personnel action.
04-1131 +++$+++ 13587 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I --
04-1131 +++$+++ 13588 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In -- in those circuits which allow these cases to go to courts, has there been any indication that the courts are flooded with a number of these cases or --
04-1131 +++$+++ 13589 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not -- no, not that I'm aware of. Obviously, in -- in other circuits, we prevailed on the -- the theory that the CSRA precludes review even of constitutional claims. And again, if I could return just for a moment to the -- the point I was making earlier about the grievance procedure. Congress has clearly manifested a preference for the inclusion of grievance procedures in collective bargaining agreements, and -- and given that express congressional preference, it doesn't seem right for this Court to assume that the grievance procedures won't work. And this seems to be an ideal example of a case that potentially implicates constitutional issues but that still falls squarely within the expertise of the union, the arbitrator, and the FLRA. That is, the dispute here concerns whether, in fact, petitioner was tested more frequently than his colleagues, and if so, what was the explanation? Was it simply random deviations? Was it potentially a -- a glitch in the computer program that was used to generate a random list of names, or was there some invidious motivation as -- as petitioner has suggested? The resolution of those types of questions falls entirely within the expertise of the participants in the grievance process even though constitutional law per se is not what labor arbitrators are best at. And so, I guess to -- to return for a second to -- to Justice Scalia's question about why shouldn't the CSRA be read to preclude judicial review of constitutional claims altogether. I mean, we certainly think that if -- in a sense, that's -- that's a debate we would be happy to lose. That is, the Government has not suggested that we have an affirmative interest in preserving judicial review of those claims, and if the Court were looking for a -- the simplest solution to the problem, that solution would be -- have just as much to recommend it as petitioner's solution, which is that you go straight into Federal district court. However, we don't think that Congress has spoken with the degree of clarity that this Court's decisions demand to preclude all judicial review of constitutional challenges, and we think the best way of reconciling that presumption of judicial review with the comprehensive nature of the CSRA scheme is to provide that claims -- constitutional claims are reviewable if, and only if, the plaintiff has made all reasonable efforts to utilize the available administrative remedies. If the Court has no further questions.
04-1131 +++$+++ 13590 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Stewart. Ms. Karlan, you have 4 minutes remaining.
04-1131 +++$+++ 13592 +++$+++ FALSE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: I -- I think it's clear at this point that the Government really is asking this Court to rewrite the CSRA on the fly. As late as page 48 of their brief on the merits, they wouldn't tell us whether our client should go to Federal district court or to the court of appeals. Then in response to Justice Scalia's question, they say, well, you could rewrite 2302(a)(2)(A)(xi) and (x). And I think the CSRA is a sufficiently detailed and comprehensive statute that this Court has resisted rewriting several times.
04-1131 +++$+++ 13593 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it's not rewriting. I mean -- I mean, it's perhaps.
04-1131 +++$+++ 13594 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is.
04-1131 +++$+++ 13595 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. You think -- fine. The -- the -- but the -- the issue it seems that could be dispositive of this, in respect to the non-constitutional claims -- and this is why I want to get your response -- is simply that it is a fair implication from Congress having set up on non-constitutional matters a system of arbitration to require your client to go through that system before seeking to get review of the non-constitutional matters in a Federal district court. Now, that's the normal rule in administrative law. What is the argument that it wouldn't apply in your case?
04-1131 +++$+++ 13596 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That the system of collective bargaining negotiated grievance processes here is set up in a way that does not filter it into judicial review. And therefore -- in 1994, when Congress amended section --
04-1131 +++$+++ 13597 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now you want us to hold you don't have judicial review --
04-1131 +++$+++ 13598 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, no.
04-1131 +++$+++ 13599 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- under the statute.
04-1131 +++$+++ 13600 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. We think that that goes straight under the APA. Now, here's the real problem with the Government --
04-1131 +++$+++ 13601 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but the answer -- please, I didn't mean to cut off your answer.
04-1131 +++$+++ 13602 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I know.
04-1131 +++$+++ 13603 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I want to hear your answer to the question that if I agree with you that on non-constitutional matters, if this system doesn't work for your client, he gets review in a Federal district court. Suppose I agree with you on that. What is the argument against requiring him to exhaust the remedy that is there, namely a request for arbitration --
04-1131 +++$+++ 13604 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The argument against it --
04-1131 +++$+++ 13605 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- as an implication from the statute?
04-1131 +++$+++ 13606 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The argument against it in this case, which stems, from among other things, this Court's decision in Zipes against TWA and in Heckler against Day, is the Government waived any claim that our client should have been required to exhaust. They never raised that issue below, and this Court has repeatedly held that a failure to raise a non-exhaustion defense is waiver of that defense. You should wait until you have a case where there has been briefing and factfinding.
04-1131 +++$+++ 13607 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Now, is there any other claim -- any other answer to the argument other than they waived it?
04-1131 +++$+++ 13608 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1131 +++$+++ 13609 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What?
04-1131 +++$+++ 13610 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that is that when Congress amended 7121(a) in 1994, they amended it to make clear that it had no effect on judicial causes of action that arose from elsewhere. That's what the insertion of the word administrative there was done. It was not done in order to create an exhaustion regime, but rather, to eliminate a preclusion regime. And we set this out quite carefully in our brief, as do the two union amici, as to what the purpose of the grievance procedure is here. It is not to create an exhaustion regime and certainly not to create an exhaustion regime with what the Government, at least, concedes under the statute, as now written, is not a personnel action. That is, the CSRA is quite comprehensive with regard to personnel actions, but it leaves to traditional sources of judicial enforcement things that are not personnel actions. And as this Court's opinion in Bush against Lucas makes absolutely clear, a warrantless search of the kind to which our client was subjected is not a personnel action and, therefore, is not within the comprehensive scheme of the CSRA for dealing with personnel actions. Thank you.
04-1131 +++$+++ 13611 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did I -- could you give -- give the same answer --
04-1131 +++$+++ 13612 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
04-1131 +++$+++ 13613 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in respect to your constitutional claim? Why, given the presence of section 705 of the act --
04-1131 +++$+++ 13614 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we --
04-1131 +++$+++ 13615 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- one's -- forget it.
04-1131 +++$+++ 13616 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, oh.
04-1131 +++$+++ 13617 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Your time is up. That's --
04-1131 +++$+++ 13618 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I get to say that. Your time is up. (Laughter.)
04-1131 +++$+++ 13619 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you.
04-1131 +++$+++ 13620 +++$+++ TRUE +++$+++ MS. KARLAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, both.
04-1131 +++$+++ 13621 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The case is submitted.
04-1140 +++$+++ 13625 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument first this morning in Martin versus Franklin Capital Corporation. Mr. Heldman.
04-1140 +++$+++ 13627 +++$+++ FALSE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Section 1447(c) provides for fee -- for a fee award -- allows a fee award when a case is remanded to State court. There is, by contrast, no statute providing for a fee award to a defendant who removes, and successfully defends against, a motion to remand. There is no statute providing for a fee award against a plaintiff who wrongly invokes the original jurisdiction in Federal District courts. This indication that there is something peculiarly troublesome and problematic about an incorrect removal is borne out in the case law of this Court and other courts and in the experience, I submit, of every practicing lawyer, that incorrect removals have detrimental effects, both private and systemic, yet Respondents would read section 1447(c) in a way that would leave it essentially without practical effect in the world of litigation. It would give no -- it would not effect litigation behavior to any perceptible degree. But both the text of the statute, when read in context, and in light of the legal landscape, and the large objectives and equitable considerations at stake here, weigh in favor of a standard that would, as the Seventh Circuit put it, make fee awards the norm in cases of improper removal. Turning, first, to the text of the statute, the statute is notable, in that, unlike many fee-shifting statutes, it runs only in one direction. That is to say, it allows for fees only when the case is remanded. This is a good textual indicium of remanding, for two reasons. First of all, it shows that the concern was with the incorrect removals, and the problems they cause in deterring them, rather than a more general concern about mitigation about questions of jurisdiction. That is, a defendant cannot get a fee award even if the plaintiff's motion to remand was not very strong. The second thing that the one-way nature tells us is that this, the statute, would be practically meaningless if read as the Solicitor General suggests, and as Respondents suggest, in all but a little sliver, to allow fees only when the removal is unreasonable. If that would not be a precise duplicate of Rule 11, it would at least be close enough to a precise duplicate of Rule 11.
04-1140 +++$+++ 13628 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, Rule 11 is about frivolous arguments and motions, is it not?
04-1140 +++$+++ 13629 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is -- yes, Your Honor, that's the shorthand of Rule 11.
04-1140 +++$+++ 13630 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. And Christiansburg Garment is about unreasonable arguments. I suppose that not every unreasonable argument could be deemed to be a frivolous one.
04-1140 +++$+++ 13631 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would -- I agree with you, Your Honor, there is that -- there is a possible sliver of a distinction, but I -- and, I submit, any lawyer advising a client and any lawyer advising himself or herself -- would have a hard time differentiating between the two standards, in practice, so as actually --
04-1140 +++$+++ 13632 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Don't you think you know it when you see it? [Laughter.]
04-1140 +++$+++ 13633 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I try to avoid all of them, Your Honor, the frivolous and the unreasonable, both. And I think we all do.
04-1140 +++$+++ 13634 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, when Congress passed this language, the scope of Rule 11 was not as well defined and understood as it is now. So, the overlap argument you're making may not really go to what Congress had in mind.
04-1140 +++$+++ 13635 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The overlap may not have been perfect, at least, among other things, in the sense that some courts were still under the misimpression that there was a subjective element to Rule 11, as well. So, the Solicitor General is correct in saying that there is that logically possible reason for the enactment of the statute, in that there is not a perfect overlay. We submit that, in light of the other available textual indicia and the policy reasons, that logically possible hypothesis is not the most reasonable hypothesis. We have --
04-1140 +++$+++ 13636 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ When you talk about the text, though -- and I understand that the "may" language here has been read by the Court in very different ways, depending upon the statute -- but you have a statute that literally alternates sentences between "shall/may," "shall/may," and it seems to me that if your rule is closer to "shall" than "may," it seems that it was an odd choice of words for Congress to employ.
04-1140 +++$+++ 13637 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the reason why I would disagree with that, respectfully, Your Honor, is, we are not suggesting that it means "shall" in all instances in which a case is remanded. The rule we are -- or standard we are advocating for deals with that set of cases in which a plaintiff has successfully sought remand. Now, that may constitute most of the cases that are remanded, but there is still the -- a separate category of cases, at least one -- the case is remanded sua sponte. I could well envision that those would not be governed by a "shall" rule for an award of expenses and fees. The --
04-1140 +++$+++ 13638 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that -- it could be remanded sua sponte for any number of reasons, so -- so, you're saying not that there is some wiggle room to allow "may" to operate, you're simply saying it depends on the party that initiates the remand. And I guess my question is, Could you give us an example, or examples, of a remand on a party's motion, on a plaintiff's motion, in which the fees would not be allowed?
04-1140 +++$+++ 13639 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. I think the classic example would be if a plaintiff's complaint, for whatever reasons of negligence or error, misalleges the plaintiff's State of residence; thus, making the defendant reasonably believe that there is complete diversity, defendant removes, plaintiff then submits affidavits and property records and everything showing it really was a mistake. And --
04-1140 +++$+++ 13640 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about the plaintiff who waits over a year to move for remand when it appears as though the case is going in the defendant's favor? Doesn't "may" give a district court discretion to say, "I'm not going to reward a plaintiff, who wants to go back to State court only when he was on the brink of losing in Federal court, with fees."
04-1140 +++$+++ 13641 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think, even in that hypothetical case, which I will say, next, is not this case -- even in that hypothetical case, it is still the plaintiff who has the cleanest hands of all. The plaintiff's hands are cleaner than those of the defendant --
04-1140 +++$+++ 13642 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Just -- you say that your presumptive fees are included would cover that case. It, in part, is -- resembles your case, because you didn't move to remand until the case was pending in the Federal District court for over a year.
04-1140 +++$+++ 13643 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. And if the Court would like, I could explain a little bit more about why that occurred. When the case was removed -- the plaintiffs in this case, unlike plaintiffs in many cases, did not have a preference for State court. There was no attempt to plead around removal. And the case was removed, and it was an arguably correct removal. And plaintiffs' counsel were then in the position, unfortunately, due to --
04-1140 +++$+++ 13644 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, indeed, wasn't there a change in the law after the case was removed?
04-1140 +++$+++ 13645 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There were relevant changes in law in some circuits, Your Honor. There was -- I don't believe any dispositive change in Tenth Circuit law --
04-1140 +++$+++ 13646 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the Tenth Circuit, I thought, held that the district court was within its discretion to deny the award, because, at the time of the removal, the defendants had objectively reasonable grounds to believe that removal was proper.
04-1140 +++$+++ 13647 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. And we do not dispute that standard, because there were out-of-circuit cases, though later overruled by those own circuits. We've suggested that punitive damages could be aggregated. And that was the -- that was one of the bases for removal, but not the only one. So, when plaintiffs removed the case, plaintiffs had no incentive, by virtue of 1447(c), in the way it had been interpreted in the Tenth Circuit, to make remand their first order of business, given plaintiffs' experience that these battles can be long and hard and unrewarding. And the removal was arguably correct. Now, by a year later, that had changed. That calculus of the plaintiffs' counsel had changed when defendant -- one of the defendants -- put in an affidavit suggesting that the named plaintiffs had no damages. At this point, the plaintiffs' calculus changed, because there was, at this point, a very real risk that if plaintiffs ignored the problem now and proceeded to a victory in the district court, then that victory could be vacated at the defendant's interest -- instance, by claiming a lack of jurisdiction. And this, then, was a risk that the plaintiffs could not take at that point.
04-1140 +++$+++ 13648 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you stated, at the outset -- and, I think, properly so -- that we're interested in what incentives --
04-1140 +++$+++ 13649 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-1140 +++$+++ 13650 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- are put in place by whatever rule we adopt. I'm not sure about the incentives in -- on the facts of this case, or in other cases, based on your rule. The defendant has only 30 days to decide whether to remove. That's a Federal right that should be given some due consideration. You, in effect, want to make the removing defendant an insurer against improper removal. And I just don't know why that should be the policy.
04-1140 +++$+++ 13651 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- my basic answer as to why that would be the policy, Your Honor, are, again, the textual reasons and the large objective reasons. Let me go back to the -- finishing up the textual reasons, if that is satisfactory. The statute previously had said -- had included the word "improvidently." Back when only costs could be awarded, and not fees, the statute had used the word "improvidently." Now, many courts -- - and I don't vouch for this interpretation, but I note that it was prevalent -- many courts then said costs may be awarded, or should be awarded, only when the removal was improvident, in the sense of being worse than merely incorrect. And the Congress deleted that word, "improvident" -- "improvidently." Now, this, I submit, is a good indication that the Congress did not mean for there to be a standard of "worse than incorrectness." Had Congress meant for that to be the standard, then Congress would not have deleted the word that had gotten many courts there, or Congress would have put in some other textual reason.
04-1140 +++$+++ 13652 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was it a big issue when the provision did not provide for counsel fees?
04-1140 +++$+++ 13653 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry --
04-1140 +++$+++ 13654 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ When it --
04-1140 +++$+++ 13655 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Your Honor, I didn't --
04-1140 +++$+++ 13656 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- when the statute provided for costs --
04-1140 +++$+++ 13657 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-1140 +++$+++ 13658 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- which, in our system, do not include counsel fees, was it a big issue when all that was included was costs?
04-1140 +++$+++ 13659 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was a big enough issue to be the subject of comment among many courts over the decades. It was a big enough issue to be covered in the treatises -- the expense was not great, but it was a recurring mitigated issue.
04-1140 +++$+++ 13660 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask a question? I never had one of these problems when I was in practice, so it's all new to me. But, "an order remanding the case may require payment of just costs and any actual expenses, including attorneys fees, incurred as a result of the removal," does that mean that if, after the removal there are substantial proceedings in the trial court, in an appeal, and so on, and then you suddenly discover that the -- there was a mistake and you remand -- you can get fees for all the litigation work that took place in the interim? It could be a very large sum of money, couldn't it? It's not just fees incident to the fight over whether removal was proper.
04-1140 +++$+++ 13661 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that's correct, Your Honor. I believe that -- to me, the most natural reading of that language is that the district court, at least in the first instance, will have fact-finding authority as to what fees and other expenses were --
04-1140 +++$+++ 13662 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that --
04-1140 +++$+++ 13663 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- incurred as --
04-1140 +++$+++ 13664 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that would --
04-1140 +++$+++ 13665 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a result of the removal.
04-1140 +++$+++ 13666 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- conceivably, could include all sorts of discovery and arguments on motions and so forth that might actually save time in the subsequent proceeding, if it goes back to the State court.
04-1140 +++$+++ 13667 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My anticipation would be that most courts would use their factfinding authority to try to figure out what work would have to be reduplicated in the State court, to compensate that work, or the work that only arose by virtue of it being in Federal court.
04-1140 +++$+++ 13668 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, the judge's discretion includes both whether or not to include any fees, and he also has quite a bit of discretion on what to include in the fee award, I suppose.
04-1140 +++$+++ 13669 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's right, Your Honor. Whether you call it "discretion" or "factfinding authority," I think that's right. That is a separate question from what we have here. But I think the district court would have the first-line authority and the main --
04-1140 +++$+++ 13670 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But --
04-1140 +++$+++ 13671 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- authority.
04-1140 +++$+++ 13672 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- shouldn't we know what the rule is with reference to the extensive fees Justice Stevens requires? Shouldn't we know that, as part of the background for what we're going to do in this case? And if you say -- and you seem to indicate, "Well, it's going to be up to the discretion of the judge." Well, if we know what the rule is, then it's not part of the discretion.
04-1140 +++$+++ 13673 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. I've proposed what I suggest would be the standard, which is, going back to the text, "what expenses were incurred as a result of," and I think that naturally means "what were in -- what costs and fees were incurred that would not have been recur -- incurred, or would not have been incurred again, had the case been left in State court." Now I --
04-1140 +++$+++ 13674 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, why doesn't -- why doesn't that also go for counsel fees? I mean, there are expenses in discovery, but there -- there's counsel time in discovery. So, wouldn't the same rule apply?
04-1140 +++$+++ 13675 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, that is -- that is what I'm suggesting, that the same rule would apply. Now, I would add --
04-1140 +++$+++ 13676 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I want to know what it is you're arguing for. That is, I -- when I get through all these words in the attorneys-fees cases, I've got it in my mind that, like the civil rights statute, they say, "You normally get fees, unless you shouldn't." All right? That means you're normally gonna to get them.
04-1140 +++$+++ 13677 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1140 +++$+++ 13678 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The plaintiff, anyway. All right? Then we have a case with a copyright. The copyright says it's all the way up to the district court, really, which means a grab-bag, and what the particular judge thinks is fair in the instance. And I guess you could have a rule saying, "You hardly ever get fees." So, in my mind, I got it, "Well, who knows?" and, "No, you almost always do," or, "No, you almost always don't." Now, is that a good characterization? And what -- which one of those three are you arguing for?
04-1140 +++$+++ 13679 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-1140 +++$+++ 13680 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I know you're not arguing for "You always don't." [Laughter.]
04-1140 +++$+++ 13681 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that is a good characterization, Your Honor.
04-1140 +++$+++ 13682 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. Then, which one do you want? Do you want the thing --
04-1140 +++$+++ 13683 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of those three --
04-1140 +++$+++ 13684 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-1140 +++$+++ 13685 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Your Honor, we would prefer the "almost always."
04-1140 +++$+++ 13686 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. Now, if you want "you always get them," in the civil liberties cases there is a good policy reason, according to the court, underlying that judgment of how Congress wanted to give this to people to vindicate civil liberties. I've never heard of a policy of closing the Federal court door, because if, in fact, you were to have that rule in this case, it would simply discourage people from removing it in cases where they think they have a good claim to remove it, because they'd have to pay huge costs if they were wrong. So, I'm not aware of any closing doors of Federal court policy.
04-1140 +++$+++ 13687 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ First of all, Your Honor, I would suggest that it is not we who would close the doors of Federal court. It is, by definition in these cases, the Congress that has closed the doors of --
04-1140 +++$+++ 13688 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now I --
04-1140 +++$+++ 13689 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Federal court.
04-1140 +++$+++ 13690 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- unfortunately, I guess, from your position, I don't know what Congress meant here.
04-1140 +++$+++ 13691 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor --
04-1140 +++$+++ 13692 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Therefore, I'm trying to figure it out in terms of the policy --
04-1140 +++$+++ 13693 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. I'm --
04-1140 +++$+++ 13694 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- as well as the language. Okay, in terms of the policy, I'm simply saying that I don't know why you have a better claim than a copyright plaintiff, and I can think of why you don't have as good a claim as a civil rights plaintiff, the reason I said. So, what is your response to that?
04-1140 +++$+++ 13695 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ First of all, Your Honor, I apologize for not being clear enough. When I say it is not we, but the Congress, that has closed the doors of the Federal court, I mean on the substantive question of whether the case was removable. We are dealing here, only by definition, with the cases that were incorrectly removed. So, the real question, I think, when we get down to the policies, is, there is some concern that defendants, under the rule I propose, would have an incentive to remove somewhat fewer cases. They would reserve the questionable removals only for the cases in which they could convince themselves and their clients that the argument was good enough, and the stakes high enough, to justify the cost. Now, I submit to you, that's exactly the same sort of situation we have now. It is merely that, now, when making that cost-benefit analysis, the defendant is thinking only of its own fees that it will incur. But, still, that is a cost. And the Congress, notably, has not seen fit to alleviate that cost at all. So, some questionable removals are already deterred by expense under the rule I propose; some, more would be. On the same -- by the same token, the rule I propose would give good incentives to the plaintiffs' lawyers to be aware of the jurisdictional issues, to mitigate them, and mitigate them well. Now, why do I suggest to you that --
04-1140 +++$+++ 13696 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why? Under your rule, there's a presumption. I thought that the rule you're asking us to approve is the one that's applicable in the Seventh Circuit, which is that you presume there will be counsel fees when a case is remanded to the State court, unless there are extraordinary circumstances that would overcome the presumption. Now, that's what you're -- that's the rule you're asking for?
04-1140 +++$+++ 13697 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know, Your Honor, whether the Seventh Circuit would follow up its presumption language by saying the presumption can only be overcome in extraordinary circumstances. That is, I don't know whether the Seventh Circuit sees its standard as the Piggie Park standard or as something slightly towards the middle from the Piggie Park standard. I think, in this case, we would win either way, but I would suggest that there is a systemic benefit from not having a multiplicity of standards, from having at least most attorneys-fee-shifting disputes be resolvable by, is it "almost always," is it "who knows," or is it "never, unless unreasonable"? I think there's a benefit to having nessatavite litigation over --
04-1140 +++$+++ 13698 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But there's such a different in the context. The Title VII plaintiff gets fees after a defendant has been found a law-violator. And, here, a defendant has a right to access to a Federal court. And the statute -- you are emphasizing text. If one looks at the Omnibus Act out of which this provision came, we see two removal-friendly pieces in it, right? Because, no longer do you have to verify a removal petition; you just do a simple notice. And that's one. And there was another. Oh, yes. Yes, you don't have to put up a bond anymore if you want to remove.
04-1140 +++$+++ 13699 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. Rather than characterizing those as "removal-friendly," I would characterize them as "resource-friendly." I think all of this can be -- can be understood as a congressional effort, overall, to reduce the amount of resources that are put into jurisdictional issues. And the rule we're proposing would further that goal; that is, by somewhat deterring the, by definition, incorrect removal. Now, on -- every incorrect removal not only harms the plaintiff -- harms the plaintiff a good bit -- the delay, the expense -- And there's been some concern I've heard voiced about the great expense that this might impose on defendants -- it imposes a great expense on defendants only precisely in as much as the defendant has imposed a great expense on the plaintiff by its incorrect action. Now, it is true that fees --
04-1140 +++$+++ 13700 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but that's a general -- you're -- you seem to be arguing more generally for the British rule, rather than the American rule. And I read our decision in Fogerty to say that when we're confronted with language like this, "may," you don't assume that Congress intended to overrule the basic American rule and apply the British one.
04-1140 +++$+++ 13701 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In that aspect of Fogerty, Your Honor, the Court had already gotten to the point of saying, "The standard is the same for prevailing plaintiff and prevailing defendant." And then, in the -- in the passage we're talking about, the Court was looking at the "one size" argument. Okay. And that same standard for both should be "usually" or "nearly always." And it was in that context, in which there would be a "shall" or "nearly always," running both ways, that the Court said, "That would be a rare bird in American law," the "both ways" British rule that -- which is my understanding of the British rule -- "That's such a rare bird, we would want to see some clearer indication of that." In this case, I submit, we don't have a rare bird at all. It is not unusual to have a -- to have "may" interpreted in a statute as meaning "usually should," in some class of cases. Piggie Park did it. Many cases in other contexts, following Piggie Park. So, it's not such a rare bird.
04-1140 +++$+++ 13702 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Those were all the, you know, private attorneys-general-type cases, where you're -- where the view is that the plaintiff is carrying out a mission of ferreting out and enforcing the law. But that's -- this is a quite different context.
04-1140 +++$+++ 13703 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Your Honor, because, first of all, it is true that usually you're awarding fees against a violator of Federal law. But that is because most fee statutes involve Federal causes of action. This is unusual and notable, in that it is a fee-shifting statute for a procedural violation. Therefore, to say, "Yes, but they didn't violate Federal law," proves too much, I think. And so, we shouldn't make such a distinction between the private attorney-general cases and this case, because the plaintiff -- every plaintiff who successfully seeks remand is furthering systemic values, as well as the plaintiff's own values, is furthering the value of comity, federalism, State sovereignty, the Federal docket load, and helping to avoid the --
04-1140 +++$+++ 13704 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Every party who prevails on a motion to admit evidence or to exclude evidence is promoting the policies and the rules of evidence, but we don't think that those motions should result in a -- in fee shifting.
04-1140 +++$+++ 13705 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is largely because, Your Honor, the Congress does not pass statutes allowing for fee shifting. And, second, removal is different. Removal has federalism concerns, as this Court has noted, going back into the '40s. Removal -- jurisdiction being an unwaivable thing, these cases -- wrong removal possibly leading to the disaster in which the case goes to trial in Federal court, judgment is entered, and it has to be vacated on appeal and done all over again, because nobody recognized the jurisdictional issue. By encouraging plaintiffs to challenge these more effectively, and by encouraging defendants to reserve their questionable efforts only for the cases that really deserve it, I think we would be -- we would be serving public ends, as well as private ones. Now, I would love to reserve the remainder of my time, unless there are further questions.
04-1140 +++$+++ 13706 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Heldman.
04-1140 +++$+++ 13707 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor.
04-1140 +++$+++ 13708 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Chilton, we'll hear now from you.
04-1140 +++$+++ 13710 +++$+++ FALSE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Since the first Judiciary Act of 1789, Congress has given defendants the right to remove cases to Federal court. Respondents did so properly in this case, and there's no dispute about that. The -- both lower courts found that we had reasonable grounds for removal, on two bases -- based on the only circuit court decisions then extant on aggregating punitive damages and attorneys fees. Petitioners conceded that fact here this morning and also in the trial court, district court, before they moved to remand, a year after removal and after the district court in the same hearing had indicated its tentative decision to rule against them on the merits of a dismissal motion. So, the issue before the Court today is whether 1447(c) requires a district court to impose a substantial penalty in the form of attorneys fees on Respondents for what is concededly in this case a reasonable, but ultimately unsuccessful, exercise of their statutory right to remove. And we think the answer to that answer to that question is clearly no, for two reasons. The first is that Section 1447(c) is not a fee-shifting statute at all. Like its predecessor, Section 5 of the Act of March 3, 1875, Section 1447(c) just confirms the district court's power to award fees, as well as costs, when it lacks subject-matter jurisdiction and, therefore, must remand the case. There was a prior contrary common-law rule, and the Act of March 3, 1875 abrogated it.
04-1140 +++$+++ 13711 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You're saying that it allows Rule 11 fees to be imposed --
04-1140 +++$+++ 13712 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-1140 +++$+++ 13713 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- which otherwise wouldn't be imposable. It seems to me that what cuts against that interpretation is the fact that it does try to set some standard. It says, "An order remanding the case may require payment of just cause -- just costs and any actual expenses, including attorneys fees." Especially the "just costs," that's a standard. It's not saying, "You can use Rule 11 and apply whatever standard Rule 11 contains." What's your response to that?
04-1140 +++$+++ 13714 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My response would be that, as the questioning already today in the Court has revealed, there are two questions on a fee motion. One is entitlement, the other is amount. "Just costs" refers to amount, not entitlement.
04-1140 +++$+++ 13715 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But I'm -- I don't -- I'm not sure that I agree with you that Rule 11 applies. It really deals with frivolous actions. And here, we're talking about the imposition of reasonable costs, are we not? Just costs.
04-1140 +++$+++ 13716 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Just costs and expenses, including attorneys fees, yes. It is --
04-1140 +++$+++ 13717 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I think the standard is different than that, under Rule 11.
04-1140 +++$+++ 13718 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if the Court interprets --
04-1140 +++$+++ 13719 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I mean, why --
04-1140 +++$+++ 13720 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You --
04-1140 +++$+++ 13721 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- is it in your interest to ask us to apply Rule 11? You're hoping that, in future cases, it will be less likely that these are awarded?
04-1140 +++$+++ 13722 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we're proposing our first argument, because we think it's textually correct and historically correct. It leads to the same result, in our case, a point I was about to make. Our second argument is that, even if you construe this statute as a fee-shifting statute, the standard under the fee-shifting statute should be the one that Your Honor just mentioned, which is, it's a multifactor test, but the primary factor is whether the ground for removal is objectively reasonable. And under that standard, we win.
04-1140 +++$+++ 13723 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now, the Solicitor General, I guess, suggests that the Christiansburg Garment standard is the appropriate one.
04-1140 +++$+++ 13724 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is true, he does.
04-1140 +++$+++ 13725 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And do you disagree with that?
04-1140 +++$+++ 13726 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, our two standards, I believe, are relatively close. We both focus on the objective reasonableness of the removal. Now, the Solicitor General, I believe, is a little bit less -- - leaves a little bit less discretion to the district court than we would. We believe that Congress, in using the word "may," in using, if you wanted to look at this as a fee-shifting statute, the word "just," meant to leave district courts with considerable range of discretion to deal with cases that come up that are unusual in the way a party can "game the system," if you will, in respect to removal. For example, in this case, waiting as long as the plaintiff did before seeking a remand. Obviously a plaintiff --
04-1140 +++$+++ 13727 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, but there had been case-law changes, hadn't there?
04-1140 +++$+++ 13728 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There had been, but that was not the reason for their delayed motion for remand. As they explained in the trial court, the reason they suddenly became aware, supposedly, of the right to remand was this declaration saying that they, the plaintiffs, hadn't paid any money for collateral protection insurance, a fact of which they must have been aware at the time they filed their complaint. Furthermore, in the Tenth Circuit, you cannot look to any document, other than the complaint or notice of removal, to establish the facts for removal jurisdiction. Therefore, the declaration could not possibly have justified a motion to remand. But, in any case, my more general point, apart from the facts of this case, is that there are cases in which one party or the other uses remand to basically avoid a -- an adverse decision on the substance, and when that party does, whether it's the defendant or the plaintiff, we feel that the district court ought to have discretion to award fees.
04-1140 +++$+++ 13729 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought a comparative advantage of the Solicitor General's approach, and, by the same token, of the Petitioner's contrary approach, is that it avoids a lot of litigation over a collateral issue, like which court you ought to be in. As soon as you get into a multifactor analysis, then you get briefs on both sides arguing their factors and the other side's factors, and the judge has to decide. If there's a presumption that applies in most cases, you don't waste time over jurisdictional squabbles like this.
04-1140 +++$+++ 13730 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, first you have the jurisdictional dispute, of course, resolved. It's only when there's a remand that you get to the fee issue. But, your more general point is, yes, obviously a categorical rule will have less litigation than a multifactor test. The question is, What did Congress want? -- not, What will reduce litigation costs? And we believe Congress would have wanted, in this situation, and did want, to allow for discretion to be exercised. Now, it's a limited discretion under our test, because if -- in general, if the removal is objectively reasonable, as ours was, we believe Congress would not have allowed an award of fees, except in those circumstances, as I've mentioned, where the system is being gamed by one party or another.
04-1140 +++$+++ 13731 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's hard to have three different kinds of standards with attorneys-fees statutes. I mean, there are quite a few of them, and -- I can understand saying some of those statutes mean you almost always should get it, because of special policies reflected in the history of the statute, et cetera. That's Christianson. And I can imagine Fogerty, where you say, "As to an ordinary one, it's ordinary." "Ordinary" means it's up to the discretion of the district judge. And there may be many reasons. Do we want a third one, where --
04-1140 +++$+++ 13732 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1140 +++$+++ 13733 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- let's say they pass this -- and it's "unusual"? I mean, we're going to get several categorizations and shadings of statutes. I don't have an answer. I'm not suggesting a point of view on this. I'm curious what you think.
04-1140 +++$+++ 13734 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I --
04-1140 +++$+++ 13735 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No --
04-1140 +++$+++ 13736 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- think we do have three, if you count Fogerty, because you have the Christianson, which is the most defendant-friendly. And then you have Piggie Park, which is the most plaintiff-friendly. And then you have Fogerty, which is been -- has been called the multifactor --
04-1140 +++$+++ 13737 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You're --
04-1140 +++$+++ 13738 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- test.
04-1140 +++$+++ 13739 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- quite correct, in our view, Justice Ginsburg. We believe Petitioners are requesting the Piggie Park standard. We believe the Solicitor General is proposing the Christiansburg Garment standard. And we think we're smack in the middle, with Fogerty. Now --
04-1140 +++$+++ 13740 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You know, it would really improve the dignity of this Court if we referred to "Piggie Park" as "Newman." [Laughter.]
04-1140 +++$+++ 13741 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I have no response to that remark, Your Honor. [Laughter.]
04-1140 +++$+++ 13742 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To pick up the train of my argument -- [Laughter.]
04-1140 +++$+++ 13743 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- we believe that discretion is not only the better part of valor, but what Congress enacted in this statute. And that's what Fogerty said -- "may" means "may," it doesn't mean "must" -- it connotes discretion -- and that an automatic rule for the award of fees on remand, or even the contrary rule, would pretermit that discretion, so that when, as in this case, there are not overriding public-policy -- public policies that are enforced by one party -- for example, in the civil rights cases, where it is the plaintiff who is the private attorney general enforcing what this Court has said, or Congress's most important policies -- when that's not present, as in this case, then "may" means "may." Particularly, that's so when, as in this case, the defendant is not a violator of Federal law, has done nothing that impinges or removes rights from the defendant -- or, excuse me, the plaintiff -- but, in fact, serves Federal interest in seeking removal. That --
04-1140 +++$+++ 13744 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I suppose that one could assume that to be the congressional intent, if Congress often has such an intent for such substantial imposition of financial liability. Do you have any other examples of where Congress has essentially left it up to the district judge, with a broad, virtually nonreviewable -- I guess it's reviewable, but -- to some extent -- but multifactor test, whatever the district judge considers important?
04-1140 +++$+++ 13745 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, I do --
04-1140 +++$+++ 13746 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What are --
04-1140 +++$+++ 13747 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- as a matter of fact.
04-1140 +++$+++ 13748 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- what are some other examples where Congress has allowed this degree of financial liability to be subjected to the discretion of a district judge?
04-1140 +++$+++ 13749 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Freedom of Information Act, Your Honor, which was passed in 1974, which, interestingly, I think, undermines the Petitioner's argument that, in using the word "may," Congress somehow incorporated the "Newman" standard. [Laughter.]
04-1140 +++$+++ 13750 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- in 1974, in adopting the Freedom of Information Act, Congress specifically considered adopting -- and it was in the Senate bill -- a four-factor test. It was removed from the bill, and the -- both conference reports on that bill explained that it was removed not to require a district court to award fees automatically in any case, but, rather, because the existing law was following, in fact, a multifactor analysis, and Congress wished to preserve it and felt that the four-factor test, which had been in the Senate bill, was too restrictive. Now, there is another example, as well, in the -- in ERISA. The cases under ERISA -- other than the special case of trust funds seeking delinquent contributions from employers; those are treated differently -- but for cases simply of suits by trustees against beneficiaries, beneficiaries against employers, beneficiaries against trustees, the courts have, in fact, employed a multifactor test.
04-1140 +++$+++ 13751 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And this is liability for what? In -- for --
04-1140 +++$+++ 13752 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Denying benefits, for example.
04-1140 +++$+++ 13753 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why isn't Fogerty an example. Isn't the -- what is the standard that Fogerty announces? It rejects the British rule, and that it rejects the one favoring -- one party over the other? What is the standard you get out of Fogerty, other than pure discretion of the district court?
04-1140 +++$+++ 13754 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I believe it's not pure discretion. The footnote at the end of the opinion says that district courts may follow the Third Circuit standard, looking first at whether the argument of the losing party was frivolous, unreasonable, et cetera, and then looking at other factors that are indicated by the particular concerns of the Copyright Act. And, yes, I quite -- you're, of course, right that the -- Fogerty did adopt the multifactor test under the Copyright Act.
04-1140 +++$+++ 13755 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, as it was just mentioned, "multifactor," in a footnote, it said it would be neutral. I think the big point in Fogerty was that it was going to apply in both directions, be neutral as between plaintiff and defendant.
04-1140 +++$+++ 13756 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That much is true, but the footnote does say that, in applying the neutral standard, the district courts are free to follow --
04-1140 +++$+++ 13757 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You've given us, in your multifactor test, you said, "objectively reasonable basis to remove." And another factor might be that the plaintiff delayed in moving to remand. What other factors, besides the "objectively reasonable basis to remove" and the plaintiff's delay?
04-1140 +++$+++ 13758 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we outlined several in our brief, Your Honor, at page -- let me see -- page 41. In addition, I think the case of Gardner versus Allstate Indemnity, 147 F.2d 1257 indicates another. There, the defendant moved successfully to remand after receiving a -- an adverse decision on the merits. It may have had an objectively reasonable ground for removal. In that case, it actually didn't, but, I mean, you can conceive of a situation in which they would have had one. And, obviously, after the merits decision went against it, it wanted a second chance. Now, in that situation, I believe a district court might, despite the objectively reasonable basis for removal, decide that the defendant should pay costs and fees.
04-1140 +++$+++ 13759 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What is your position on what fees we're talking about. Do you agree with your friend that money that's spent, that's going to have to be spent anyway in the State court proceeding, though, is not wasted, that that's not recoverable?
04-1140 +++$+++ 13760 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I absolutely do not agree, Your Honor. I think that "incurred by reason of the removal" refers to fees and costs that are specifically directed to the jurisdictional issue, and that only; no other fees or costs in the litigation at all. Of course, that question isn't presented here, because we had no -- or the lower courts decided that -- the Petitioner is --
04-1140 +++$+++ 13761 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Have the lower courts addressed that issue?
04-1140 +++$+++ 13762 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not to my knowledge, Your Honor.
04-1140 +++$+++ 13763 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are there -- are there instances, under your view of the statute, in -- under the standard you propose, where costs would be awarded, but not fees?
04-1140 +++$+++ 13764 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if you view 1447(c) as an -- a power-enabling bill, not a fee-shifting statute, the answer is yes. I believe if the -- if it's viewed as a fee-shifting statute, the answer would be no, although, of course, the court has discretion to decide how much to award, and, in that sense, could award either no fees and all costs, or some --
04-1140 +++$+++ 13765 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And, once --
04-1140 +++$+++ 13766 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- combination.
04-1140 +++$+++ 13767 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- again, can you advise us of their practice or lower-court opinions addressing that issue?
04-1140 +++$+++ 13768 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I cannot, but there certainly are lower-court decisions that allow fees on remand in very small amounts that could not possibly have been sufficient to compensate for the work done.
04-1140 +++$+++ 13769 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Because we think of costs as really a matter of course. As Justice Scalia points out, it says "just costs," which -- I take it "just" modifies just the cost and not the actual --
04-1140 +++$+++ 13770 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, as the statute is written, that's true.
04-1140 +++$+++ 13771 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I return to Fogerty for a minute? As I read the footnote at the end of the opinion, which you - because say referred to the Third Circuit rule, it talks about, "nonexclusive factors are permissible." It doesn't say the factors used by the Third Circuit are the -- you know, set any particular standard. As I read it, it leaves the discretion entirely up to the district court to apply whatever reasonable and appropriate factors seem correct in the particular case.
04-1140 +++$+++ 13772 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that may be, Your Honor. I read the decision, and perhaps --
04-1140 +++$+++ 13773 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you're --
04-1140 +++$+++ 13774 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- incorrectly --
04-1140 +++$+++ 13775 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- but you're --
04-1140 +++$+++ 13776 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- as steer --
04-1140 +++$+++ 13777 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- the part of the decision on which you rely is the footnote at the end of the opinion, is that right?
04-1140 +++$+++ 13778 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1140 +++$+++ 13779 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-1140 +++$+++ 13780 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If the -- the broader discretion we give to the district court, the less litigation there is likely to be on this subject.
04-1140 +++$+++ 13781 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is certainly true. Fewer appeals, at any rate. And as long as we're talking about litigation expense, I think, to bring us back to one of Petitioner's arguments, they contend that their standard would reduce the amount of costs invested in jurisdictional issues. But, in the same breath, they also say that the standard that they propose would encourage plaintiffs to move for remand. The two cannot coexist. If -- not every remand motion is meritorious. So, by encouraging plaintiffs to move for remands, you're, in fact, increasing the amount of jurisdictional litigation and the amount of costs incurred at -- over jurisdictional issues. I wanted, if I could, to answer one question that Justice Ginsburg asked in the beginning about the Omnibus Act. Justice Ginsburg mentioned that it contained removal-friendly provisions. And it does. They're not only the two that were mentioned -- lack of -- or abolition of the verification doctrine and deletion of the removal bond -- but much more significant expansions of removal jurisdiction. The -- for us from California, in particular, the 1988 Act said that you could disregard the citizenship of "Doe," or fictitiously named, defendants in deciding whether there was diversity -- complete diversity in a case. That was huge for us in California, because virtually every State court complaint in California contains "Doe" defendants. And prior to that amendment, their citizen -- you had to guess at their citizenship, and it prevented removal of virtually all State court complaints, on diversity grounds. So, to say that this 1988 Act was designed to discourage removals plainly goes against the text of the Act. Furthermore, removal furthers not only the private interest of the defendant, but the Government's interest, the Federal interest, the interest of the people of the United States, in many cases. And that's precisely why Congress has given us the right to remove in a whole series of areas, not only in diversity, but, of course, in Federal question. An interesting example, because it arose for the first time in 1875, in the same Act of March 3, 1875, from which this cost provision comes, an Act that was passed by the lame-duck radical Republicans at the same time they passed the Civil Rights Act of 1875, for the purpose of allowing Federal courts to enforce the new Federal rights that Congress felt were not being adequately addressed in State courts. So, the State courts, particularly the South, were thought to be hostile to the new Federal rights. Similarly, just this year, in the Class Action Fairness Act, Congress allowed defendants to remove multi-State class actions, not for the benefit of the defendants, but for the benefit of the entire Nation. It -- the Senate report, at page 9, specifically points out that it is those cases which most affect the interstate commerce of this Nation, and, for that reason, they belong in Federal court. Now, why would Congress choose to discourage defendants from removing those very cases by adopting a plaintiff-friendly --
04-1140 +++$+++ 13782 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it's not those very cases. By definition, this issue only comes up when the case should not have been removed.
04-1140 +++$+++ 13783 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The --
04-1140 +++$+++ 13784 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, it's not the cases that Congress wanted to be removed that we're talking about.
04-1140 +++$+++ 13785 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, as this Court explained in Piggie -- no, excuse me, Christiansburg Garment, Your Honor -- the imposition of fees discourages activity when it's a Federal right that's being enforced, saying that fees are imposed whenever there's a near miss, a reasonable case that's brought to enforce the Federal right. You discourage the very thing that Congress intended people to enforce. That's my point here. Yes, it's true, fees would only be awarded in those cases where the defendant is unsuccessful and the case is remanded. But, for example, in the Class Action Fairness Act, that can happen even when there's a perfectly, not just reasonable, but exactly proper ground of removal, because the Class Action Fairness Act, among other things, says that when there's more than one-third, and less than two-thirds, the citizens in the State in which the complaint was originally filed, they're in the class, then the district court has discretion to remand the case, even if it's properly brought in Federal court, removed to Federal court. So, my general point is that Congress has enacted these removal statutes to promote Federal policy, and that it would be counter to that policy to discourage defendants from removing cases, particularly if the amount of fees that could be awarded would include all the fees incurred in Federal court. I mean, we're talking about very substantial fee awards, in that event. And they would be a significant deterrent from exercising the very rights that Congress has said defendants should have for the benefit of the public. Furthermore, as already pointed out, State court plaintiffs never enforce congressional policy; otherwise, they'd be in Federal court, under Federal-question jurisdiction. The defendant has not violated Federal law, so neither of the exceptional circumstances --
04-1140 +++$+++ 13786 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I wonder if that's a correct statement. It seems to me there are a lot of cases in State courts. In 1983, cases are subject to State court jurisdiction, where the plaintiffs are trying to enforce a Federal right.
04-1140 +++$+++ 13787 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but those can be removed, Your Honor.
04-1140 +++$+++ 13788 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Oh, I just thought you said the State court would never be enforcing a Federal -- - I may --
04-1140 +++$+++ 13789 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1140 +++$+++ 13790 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- I may have misunderstood your point --
04-1140 +++$+++ 13791 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
04-1140 +++$+++ 13792 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- I'm sorry.
04-1140 +++$+++ 13793 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I, perhaps, was overgeneralizing. What I meant to say was, in cases that are remanded because of lack of Federal jurisdiction, it is never the case that the plaintiff is enforcing a Federal right, because, if he were, there would be Federal-question jurisdiction.
04-1140 +++$+++ 13794 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In other words, it was an improperly removed case.
04-1140 +++$+++ 13795 +++$+++ TRUE +++$+++ MR. CHILTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. In any event, if the Court has no further questions, I am through.
04-1140 +++$+++ 13796 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Counsel. Mr. Heldman, you have four and a half minutes remaining.
04-1140 +++$+++ 13798 +++$+++ FALSE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ First, regarding the continued insinuation of some manipulative intent by the timing of the -- of the removal, there was, in this case, no finding by the district court, no suggestion by the district court, that there was any such intent, or that that was a reason to deny fees, no suggestion by either of the lower courts to that effect. Absent that, I think it might be that a delay in removal could, in an appropriate case, be something that went into the calculus of what expenses and fees were incurred as a result of the removal. That may well go into the "amount" question. But, absent a manipulative intent, it is still the case that it is the plaintiff who successfully sought remand, whenever it happened, that has the cleanest hands in the courtroom. Second, Respondents describe their proposal as a middle ground. There is no middle ground in this case, unless it is, "Eh, who knows?" Their proposal is not middle ground, because their proposal says, "There shall be no award of fees, in general," as the most important factor, where there was a reasonable basis for removal. That cannot be described as a middle ground. That tilts it in one way. We tilt it in the other way. And, as I say, a middle ground only gets you perhaps to Fogerty. And it -- and, as we show on page 30 of our blue brief, in the footnote, the district -- there has been a lot of litigation, after Fogerty, still trying to figure out what the standard is -- not only district court litigation, but appellate litigation, and the circuits are all over the map as to even what the copyrights standard is. I urge the Court, for the benefit of the practicing bar, as well as the bench, not to go down that road. Now, the road made some sense in Fogerty, and multifactor tests makes some sense in the -- FOIA and ERISA, because, in those instances, there are very weighty public interests on both sides of the litigation. When an ERISA claimant sues the ERISA fund, it's not a -- it's not that one is the particular favorite of the law; they are both favorites --
04-1140 +++$+++ 13799 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why --
04-1140 +++$+++ 13800 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of the law.
04-1140 +++$+++ 13801 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- not, then, just say "objectively reasonable basis to remove"? That's a one -- one standard.
04-1140 +++$+++ 13802 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That standard is appropriate, as in Christiansburg, Your Honor, where the party who is potentially subject to the award is the favorite of the law in question. That is, where there is a special reason not to seek to over-deter that person, to encourage that person to litigate creatively and aggressively the reasonable, though ultimately wrong, propositions. And so, I think the case reduces, in a large sense, to: Does Federal law encourage the creative aggressive litigation of questionable removals? And among the ways we know that it does not is that this Court has said, for 60-something years, that removal is strictly construed, as every circuit has understood that to mean. That means doubts are resolved in favor of remand. If Congress wanted to encourage the removal of questionable cases and get it all hashed out and make the defendants -- they would, first of all, abrogate that rule, and, second, they would remove the rule in Section 1447(d) precluding reviews of remand orders. Because as we have it now, except for special cases where the Congress decides otherwise, like the recent Class Action Act, where we have, otherwise, the substantive law is bent towards remand, bent against the creative and aggressive advocacy of perfectly reasonable, but wrong, propositions.
04-1140 +++$+++ 13803 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If the law was so anti-removal, then one would expect there would be some kind of threshold check once you get to district court. But the removal process is: you file your notice that you're removing. That's it. There it goes. And the district court doesn't do any kind of initial screening to let it in. It just gets there --
04-1140 +++$+++ 13804 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My experience --
04-1140 +++$+++ 13805 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- by rapid transit.
04-1140 +++$+++ 13806 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, Your Honor. My experience in the district courts is that they do do an initial screening, as they should, in order to limit themselves on their own motion to their own proper jurisdiction. This court, unfortunately -- the district court -- did not. But my experience in the district courts is that some of them do, but a lot of -- at least a substantial number of cases slip through the cracks.
04-1140 +++$+++ 13807 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Counsel.
04-1140 +++$+++ 13808 +++$+++ TRUE +++$+++ MR. HELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor.
04-1140 +++$+++ 13809 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The case is submitted.
04-1144 +++$+++ 13814 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Ayotte versus Planned Parenthood of Northern New England. General Ayotte.
04-1144 +++$+++ 13816 +++$+++ FALSE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice and may it please the Court: The Court of Appeals struck down New Hampshire's parental notification act on its face based upon a potential application of the act that even respondents concede may only arise in the smallest fraction of cases. In doing so, the act was rendered ineffective in the overwhelming number of applications where it is unquestionably constitutional, and State officials were denied the opportunity to imply -- apply and enforce New Hampshire's act within constitutional limits. New Hampshire's act can be applied in a manner to protect a minor's health if the rare case arises where a medical emergency occurs that requires an immediate abortion. In that rare case, if it does arise, where an abortion has to be performed immediately and the child does not want to notify a parent, there is a judicial bypass mechanism available which requires New Hampshire courts to act promptly and without delay and in the best interests of the minor.
04-1144 +++$+++ 13817 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I interrupt you at this point? Because there is one thing that I'm not sure that I understand about your position, and one way of reading your brief takes you a step beyond what you have just said. So I would like to get clear on this. And I understood your argument to be that given the safeguards such as judicial override, there simply was no -- there was no need to read the health exception in, that in fact it was taken care of -- any of the issues that might be raised in arguing for the need for health exception in fact were addressed by the statute. The point at which I'm not clear on your position is -- occurs in what you've said on page 11 of your yellow brief, if you could get that out. Do you have the carry over paragraph on 11? You go through the kind of a worst case analysis. And you say, well, you know, assuming that all of the safeguards somehow do not work, finally, in the unlikely event that a parent refuses to waive the 48-hour waiting period and so on, a doctor who performs an emergency abortion under such circumstances would not be subject to either criminal prosecution or civil liability because his or her conduct would not only be constitutionally protected but would be independently justifiable, and then you cite the competing harms. What do you mean when you say it would be constitutionally protected? I read that as suggesting that there was indeed a constitutional requirement for some kind of a health exception, but that may not be what you meant. What do you mean by constitutionally protected? What are you getting at?
04-1144 +++$+++ 13818 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, in that instance, we did not say that it was an independent constitutional requirement that there be a health exception, but certainly reading this Court's cases, we should apply our act in a manner to protect if that rare case arises where an emergency abortion would come forward. And, if a physician were prosecuted under those circumstances, we believe not only would he have a statutory ability to say this prosecution is inappropriate given our law, but also given those rare circumstances, we do not think that he, under the Constitution, may be prosecuted.
04-1144 +++$+++ 13819 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if he said, "I may not be prosecuted under the Constitution because," what follows "because," in your view?
04-1144 +++$+++ 13820 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I may not because New Hampshire's act may not be applied in a manner to ensure that if a minor in that rare circumstance needs an immediate abortion, that she receives that immediate medical care in those circumstances.
04-1144 +++$+++ 13821 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Doesn't that mean because there is a required health exception? I mean, isn't that what you're saying?
04-1144 +++$+++ 13822 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, not that there is an express requirement of a health exception but that the law cannot be implied in a manner to infringe on the minor's health if that rare emergency case arises.
04-1144 +++$+++ 13823 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Your first answer to Justice Souter was that the physician would say you can't be prosecuted under our law. Do you mean this act that we're looking at here? Or do you mean the law generally including constitutional protections that this Court has proclaimed?
04-1144 +++$+++ 13824 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, in that limited circumstance, we do not believe that the physician would be prosecuted under our parental notification act, given that there is a mechanism --
04-1144 +++$+++ 13825 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because of the text of the act or because of some policy that the attorney general would follow in order just to decline to prosecute? We want to know what this act says in the instance posed by Justice Souter.
04-1144 +++$+++ 13826 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, with respect to the act itself, assuming it were a life -- excuse me, a health emergency short of a life-threatening emergency, where a minor did not want to notify her parents and assuming those situations came forward and someone was unable to reach a judge, the act itself provides a mechanism in it that anticipates providing a judge where necessary, and so that would be the ability of a minor in those circumstances to seek a judge. But if for some reason all of those situations came together and the minor could not seek a judicial bypass in those instances, there is an existing provision of New Hampshire law, our competing harms defense, that we believe protects the physician in those circumstances.
04-1144 +++$+++ 13827 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let's just imagine a real circumstance. A 15 year-old walks in 2:00 in the morning on Saturday into the emergency room and the doctor looks at her, she's pregnant, she has this very high blood pressure, whatever. And the doctor thinks to himself, he thinks, well, immediate abortion, no question, immediately deliver the child. If I don't, I don't think she's going to die but she'll never have children. And he's thinking that. What's supposed to happen? He calls up Pam Pevagoglio or Pam Livingston and there is no answer. It's 2:00 in the morning and there is one of those things, leave a message, okay? Should I call your parents? No. They don't know I'm pregnant. Now, what's supposed to happen?
04-1144 +++$+++ 13828 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, the physician in those instances could perform the immediate abortion.
04-1144 +++$+++ 13829 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It doesn't say that in the statute. It suggests the contrary. So what is the particular provision of New Hampshire law that tells that -- I mean, the doctor -- all these things are, you know, questions of probability. And he doesn't want to risk being prosecuted and he doesn't want to risk losing his license. And so what particular provision -- he happens to have his lawyer with him. (Laughter.)
04-1144 +++$+++ 13830 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What does the lawyer say? Okay? What's the provision that saves him? There is no health exemption in this statute.
04-1144 +++$+++ 13831 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, his lawyer would advise him, in those circumstances, that the competing harms defense would protect his actions because he needs to act urgently necessary -- in an urgently necessary circumstance.
04-1144 +++$+++ 13832 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would it protect him from a civil damages action as well as prosecution in a criminal case?
04-1144 +++$+++ 13833 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice O'Connor, by the plain language of the competing harms defense, it also precludes civil liability. I would also say that that lawyer would also advise him, if given the opportunity, the attorney general is prepared also to issue an opinion describing the applicability of the competing harms defense in this very rare circumstance, should it arise.
04-1144 +++$+++ 13834 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How do we know? I mean, what you're saying is fine, but how do we know that that's actually the law? I mean, there are a lot of people who absolutely in very good faith would say that it isn't competing harm. They would say that the competing right that the life of the fetus is more important than the possibility of the mother having children in the future herself. See, there are people in good faith on both sides of this argument. And so how do we know that the New Hampshire statute is going to do -- not the statute, but your competing harms defense is going to do for this particular woman what a health exception would do?
04-1144 +++$+++ 13835 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, because the harm that is being weighed here is the harm of urgently providing care to this minor who needs it, as opposed to the harm that the act is trying to get at, which is notification of parents. It's not whether or not the minor can have an abortion. The minor can always go forward and have an abortion under these circumstances. So people aren't weighing the right of the fetus, in this instance, to the right of the mother's health. So the weighing is quite easy. And if given the opportunity, my office would be prepared to issue an opinion as to the applicability of this defense.
04-1144 +++$+++ 13836 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, your opinion -- that's the real problem here for the doctor who is on the line. And you said the lawyer would say, oh, you've got this defense of -- what do you call it harm --
04-1144 +++$+++ 13837 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Competing harm.
04-1144 +++$+++ 13838 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Competing harms, a defense -- I think that a lawyer who cares about his client would say, defense is not what we want. What we want is there is no claim, not that you have to put up a defense and maybe the attorney general will give us a letter saying that we come under that defense. Wouldn't a careful lawyer say, what you need to be protected is that there is no claim for doing what you're doing?
04-1144 +++$+++ 13839 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, in the Simopoulos case considered by this Court, one of the issues that was raised was a medical -- the physician was prosecuted for performing an abortion outside the parameters of the Virginia act. And the physician failed to raise a medical necessity defense. This Court held that that was sufficient prosecution, that that was okay. And this would work the same way. Once the physician raises a competing harms defense --
04-1144 +++$+++ 13840 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ General, may I just point this -- suppose the lawyer or the doctor are aware of the legislative history and say, well, generally that's true. But when you have a legislative history that suggests that the legislature considered this very defense and rejected it in the statute, would then that then give them some concern?
04-1144 +++$+++ 13841 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, the legislative history -- there certainly was some indication that the legislature did not want a general health exception. There is no indication in the legislative history that the legislature intended to preclude this narrow category of cases which constitute emergency cases short of that.
04-1144 +++$+++ 13842 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if they discussed the issue on the floor of the legislature, why wouldn't they have drafted the precise protection they thought appropriate?
04-1144 +++$+++ 13843 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, when they discussed the history on the floor of the House and Senate, they felt that it protected for emergencies and there was no discussion of this narrow category of cases short of death.
04-1144 +++$+++ 13844 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you have another point here, don't you, about how general this statute is. We don't normally interpret statutes this way, that they are totally invalid if any application of them would be unconstitutional. That's not what we do with statutes normally, is it?
04-1144 +++$+++ 13845 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, no. In fact, the analysis, if you look at this one potential application, this -- the standard applied by the Court of Appeals in this case goes well beyond even a substantial overbreadth test that is applied by this Court in the first amendment context.
04-1144 +++$+++ 13846 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In the first amendment.
04-1144 +++$+++ 13847 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Am I right in reading your briefs that you don't object to a pre-enforcement challenge to the bypass procedure itself brought by physicians, for example?
04-1144 +++$+++ 13848 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, no, we do not object in that sense. We think that is a very good mechanism to bring forth a case given that this Court has granted third-party standing to physicians to resolve these types of claims. And teh benefit --
04-1144 +++$+++ 13849 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I gather that the debate on the evidence and the circumstances that might arise in that case would be quite similar to the debate in the present context. In other words, there would be the same discussion between the different physicians about what emergencies arise and in what circumstances and whether that creates a problem and whether you can get to the courts in time and so on. It would be the same underlying sort of evidence that we have here, right?
04-1144 +++$+++ 13850 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, it would, but it would be much more narrowly focused in terms of bringing it as an as-applied challenge, this was brought --
04-1144 +++$+++ 13851 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How would it be as-applied? Look at your reply brief at page 3. And you've made it very clear, and I think that it is helpful that you did, that there could be this pre-enforcement action by doctors who would not have to wait until faced with an actual medical emergency to bring the suit. You've talking about this small category of cases, but I take it from what you have read -- what the lines I've just read, that you envision a doctor who says, sooner or later, I'm going to have such a case. Right now, I don't know and I can't know until it's too late to come to any court, so I'm going to bring this pre-enforcement which you characterized as-applied. But I don't see how its as-applied, if if the physician just says, as you put it, I don't have to wait until faced with an actual medical emergency to bring this suit. So what is the relief, what is the lawsuit that you envision would be proper?
04-1144 +++$+++ 13852 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, the lawsuit would be a pre-enforcement as-applied challenge and the physician would bring the claim and would say, as applied to me, I perform abortions, I also perform abortions on minors. I need to perform an abortion in these emergency settings. The court can issue an order, presuming it's not satisfied with the protections that are set forth in New Hampshire law that I've described.
04-1144 +++$+++ 13853 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Could you do that as a class action?
04-1144 +++$+++ 13854 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Depending on the circumstance, he may be able to.
04-1144 +++$+++ 13855 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is the circumstance? All you said here is there coule be a pre-enforcement challenge by doctors who would not have to wait until faced with an actual medical emergency.
04-1144 +++$+++ 13856 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice -- I'm sorry.
04-1144 +++$+++ 13857 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why isn't that this case? I don't understand.
04-1144 +++$+++ 13858 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, exactly.
04-1144 +++$+++ 13859 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, this is not this case because this case was brought as a facial challenge. Our entire act was struck down based upon that one potential --
04-1144 +++$+++ 13860 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You mean he has to bring the as-applied challenge when he has the patient in his office? He has to wait until he has the patient in the office, is that what you mean?
04-1144 +++$+++ 13861 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, he doesn't. He can bring it before the patient is in his office and then the court could issue relief which would be much more consistent with the principles of certainly separation of powers and allowing the overwhelming number of our applications of our statutes that are valid to go forward.
04-1144 +++$+++ 13862 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We're talking about a lawsuit which asks for declaration, not that the entire statute is invalid. But that, when faced with an emergency of the sort that this discussion has addressed, the physician can go ahead and perform the abortion?
04-1144 +++$+++ 13863 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Justice Scalia.
04-1144 +++$+++ 13864 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Quite a different lawsuit from this one.
04-1144 +++$+++ 13865 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's quite a different lawsuit and a lawsuit that would be certainly, from the State's perspective, would allow the overwhelming number of applications of this statute where there is no dispute that it works well, to go forward.
04-1144 +++$+++ 13866 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But in Justice Scalia's case, would not the reason for that relief have to be a finding that the statute is unconstitutional? You can't just grant the relief because you think it's a good idea.
04-1144 +++$+++ 13867 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, it would be only in the context of that one particular application as applied to that physician, which would have stare decisis --
04-1144 +++$+++ 13868 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It would be a finding that the bypass procedure is inadequate which doesn't necessarily implicate the general notification provisions.
04-1144 +++$+++ 13869 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, that would be the case. And certainly if that one application, in that one potential rare case was found not to be valid, then the remainder of the applications can go forward. And that is how most cases work with respect to as-applied relief.
04-1144 +++$+++ 13870 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then I think what you're saying essentially is that the First Circuit was concerned with this category, wanted to give pre-enforcement relief to the physician, so what they did was write except that they should have said this statute is not enforceable where there is a risk to the woman's health and it cannot be applied in any such cases. Where there is a risk to the health, then the statute is okay.
04-1144 +++$+++ 13871 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, the First Circuit went well beyond because it focused on a general health exception, they've now focusing it on an emergency exception. But certainly the relief should have been as-applied. If I may reserve the rest of my time for rebuttal?
04-1144 +++$+++ 13872 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did you ask that the relief ordered below be more restrictive? Was that challenged after the judgment was entered?
04-1144 +++$+++ 13873 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice --
04-1144 +++$+++ 13874 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did the Court below have a chance to consider tailoring it more narrowly, as you suggest today?
04-1144 +++$+++ 13875 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice O'Connor, we did raise the application of the severance clause below, although the court, both at the district court level and the First Circuit appeared to look at the -- the lack of a general health exception as a per se constitutional problem that rendered the statute as a whole invalid.
04-1144 +++$+++ 13876 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I just am not clear to what extent you really raised the possibility with the court below of carrying its judgment more narrowly as you're suggesting today should be done.
04-1144 +++$+++ 13877 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we certainly raised the severance issue in the district court.
04-1144 +++$+++ 13878 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You've used this word severance now twice. Severance is I excised a clause from the statute, but you're not asking for that. It's not severance. There is no provision to be severed here. It's putting a caret mark and adding something to it. Not taking out any provision, but putting in an additional provision.
04-1144 +++$+++ 13879 +++$+++ TRUE +++$+++ MS. AYOTTE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, you're correct. What our position is is that they did not meet the standard that they should have been able to meet for a facial challenge, which would grant as-applied relief which would only be invalid in that one potential application. If I may reserve the rest of my time, with all due respect.
04-1144 +++$+++ 13880 +++$+++ TRUE +++$+++ JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General. General Clement, we'll hear now from you.
04-1144 +++$+++ 13882 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice and may it please the Court: Respondents elected to bring a facial challenge to New Hampshire's statute and succeeded in their goal in enjoining the statute in all its applications. Despite the facial nature of their challenge, however, they do not contend that the statute is invalid in all or even a large fraction of its applications.
04-1144 +++$+++ 13883 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that was true in Casey.
04-1144 +++$+++ 13884 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't think it was, with respect, Justice Souter. This Court found as to the spousal notification critically, that there was a large fraction of the applications of the statute that would give rise to the constitutional problem.
04-1144 +++$+++ 13885 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, we may argue about what the fraction may be and we may argue about what substantiality means. But one thing I don't think we can argue about is that Casey was applying the Salerno standard.
04-1144 +++$+++ 13886 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, two things, Justice Souter. I think, first of all, this case has come up postured as being about a choice between Salerno and the large fraction test. And I think in some points, based on the way respondents have approached the case, that's become largely beside the point. At footnote 13 of their brief, they could not be more clear, that they are not here contending that the statute is invalid in a large fraction of their applications. They instead are embracing a per se rule that if the statute does not have a health exception or an emergency exception clear on its face, it is void in its entirety.
04-1144 +++$+++ 13887 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Once again, that may be, but after Casey, I don't think one can plausibly argue that the Salerno standard is the correct standard. Whatever their position may be, whatever fractions of substantiality may mean.
04-1144 +++$+++ 13888 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I understand that's your position, Justice Souter, given that you joined Justice O'Connor's separate separate writing in the Fargo case. I think, however, that I read the opinion in Casey and I see the large fraction analysis only in the spousal notification context.
04-1144 +++$+++ 13889 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But why would we have a separate rule on facial challenges merely for spousal notification?
04-1144 +++$+++ 13890 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I can think of two reasons, Justice Souter. First of all, because this Court applied the no set of circumstances test in Akron II to a parental notification statute, this Court in Casey may not have wanted to overrule Akron II to that extent. Second of all, I think this Court, in that very passage about the large fraction test, specifically distinguished spousal notification provisions from parental notification provisions.
04-1144 +++$+++ 13891 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose I were to conclude that under Casey, this fraction test applies to this case. Suppose I were to say that Salerno should not be applicable in this case. How should I rule in this case?
04-1144 +++$+++ 13892 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You should clearly rule in the State's favor. And the respondents have really given you no choice because they aren't even arguing that a large fraction of the applications of the statute are invalid. What you have before you is really a case where it's literally a one in a thousand possibility that there is going to be an emergency where the statute will operate. And the real question for you is faced with that kind of case. Do you invalidate 1,000 applications of this statute noting that 999 of them are constitutional?
04-1144 +++$+++ 13893 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Could the plaintiffs have filed a narrower action attacking the adequacy of the bypass procedure?
04-1144 +++$+++ 13894 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. And they also could have -- what I think I would envision them filling is an even narrower provision that seeks a pre-enforcement declaration, kind of like Steffel against Thompson would be the model, that say that this statute can apply in an emergency situation.
04-1144 +++$+++ 13895 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, that's exactly -- I'm leaving aside your fraction test, your 100 percent test, because I don't think they capture all the considerations that are relevant. Focus on what you just said. What you've done is you've tried to create an injunction that will separate out the sheep from the goats, all right? The goats are only 1 percent and the sheep -- But what does it say? I don't think you can say enjoin the bypass procedure, because if you enjoin the bypass procedure, there goes down the drain your whole parental notification because you can't have parental notification without a bypass procedure. I don't think you can say enjoin emergencies because to do that, you're going to have to get into the greatest difficult issue there is in this area, which is what does that health exception mean. And we've said throughout that that health exception has to be defined first by a legislature. So if you tell me how to write that injunction, then I'll be able to decide whether it's possible for a court just to say, okay, we only enjoin the goats as opposed to saying, legislature, this is basically up to you, the whole area.
04-1144 +++$+++ 13896 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And Justice Breyer, I would say the court has some discretion in how it formulates that order. It would basically say that this statute is not constitutional as applied to those emergency situations.
04-1144 +++$+++ 13897 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but that's -- And if I could just say, it's no different than Steffel against Thompson. There is a case where there is a challenge against a broad criminal trespass statute. The theory in Steffel was not that the whole criminal trespass statute was unconstitutional. It was it's unconstitutional if you apply it to leafletting. And Justice Brennan for a unanimous Court said, yes, that's exactly the kind of challenge you can bring. And you can get declaratory judgment that says you can't do that, you can't apply the statute as to leafletting. But you don't strike down the entirety of the criminal trespassing statute.
04-1144 +++$+++ 13898 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The word leafletting is not as fuzzy around the edges as health exception, given the fact that lots of people think health exception is a way of getting abortion on demand.
04-1144 +++$+++ 13899 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you agree with Justice Breyer that the legislature can draw this with more precision than a court could?
04-1144 +++$+++ 13900 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't Justice Scalia.
04-1144 +++$+++ 13901 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, that seems to be a solution, that the legislature can make it precise, although a court could not.
04-1144 +++$+++ 13902 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the court could issue any order a legislature could issue. And I think the fact that the court would have some discretion is an answer to the argument that, oh, well, if you leave this to the courts, you're cutting the legislature out of this. I think that --
04-1144 +++$+++ 13903 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why wouldn't it be an abuse of discretion in this case? Because there seems to be an ample record here that the legislature, or a majority of the legislature made a conscious choice that they would rather have no statute than a statute with a health exception in it. They deliberately said the only statute we want is one without a health exception. Therefore, even if you touch all the bases that Justice Breyer has laid out, don't you end up with a position that if we were to craft such a limitation, we would be flying quite precisely in the face of the expressed legislative intent.
04-1144 +++$+++ 13904 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that's right, Justice Souter and I think it's because you have to be careful. I think it's easy to use loose language about a health exception. And I think if you looked at the First Circuit opinion, they seem to suggest there needs to be a health exception. And I think in the context of a parental notification statute, a health exception as opposed to a narrow exception for emergencies is a non --
04-1144 +++$+++ 13905 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Whatever you call it, call it a health exception, call it an XYZ exception. They knew what they were getting at, they knew what they were worried about and they said, we will have a statute without it or we will have no statute.
04-1144 +++$+++ 13906 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect, Justice Souter, I think they were --
04-1144 +++$+++ 13907 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought there was a separate severability. Didn't it have a severability provision?
04-1144 +++$+++ 13908 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They did and it's extreme severability.
04-1144 +++$+++ 13909 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And so it said just the opposite. It said just the opposite, that if the health exception is no good, the rest of the statute would survive. Isn't that basically --
04-1144 +++$+++ 13910 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's right Justice Souter -- Justice Scalia --
04-1144 +++$+++ 13911 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't know how you would sever a health exception that is not there. They're saying if something is in here, you can sever it and we'll be satisfied with what's left. In effect, if we were to enjoin certain applications, we would be injecting an exception that they've rejected. And whatever that may be, it does not seem to be severance.
04-1144 +++$+++ 13912 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Two answers, Justice Souter. First of all, I think that if you look at what the New Hampshire legislators were concerned about, they were concerned about a broad health exception that would undermine the statute, not an emergency exception. As to the severability point, I think in some respects, severability is the wrong way of looking at it. In the context of as-applied challenges, this Court has not rigorously said that you look at the applications and see whether they're severable. The idea is that a statute is not constitutional in certain applications. But the New Hampshire legislature I think was -- even had the belt and suspenders to worry about that if you had a different view of that, it's the view that actually Justice Thomas embraced in his Booker opinion, that actually you do look at severance when you do applications. The New Hampshire legislature couldn't have been clearer, because they said not only do you sever the provisions, but sever the applications. We want to save as much of this statue as we can.
04-1144 +++$+++ 13913 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The end of the statute doesn't say that. The end of that provision says sever a provision.
04-1144 +++$+++ 13914 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You're right, Justice Ginsburg, but I don't think you look only at the end of the statute. It clearly says, if any provision of this subdivision or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect the provision or applications of this subdivision which can be given effect without invalide - sorry -- provisions or applications. It seems like they had this case in mind, that there were circumstances in which perhaps some court would say it was unconstitutional to apply it and that's not a basis to strike down the whole statute.
04-1144 +++$+++ 13915 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ General Clement, there is usually great caution on the part of the Court from tampering with the statute. So excision is one thing. You just drop a provision. That's not possible here. The Court has been extremely reluctant about caret marks, which is what -- there is no problem with what the legislature did. It just didn't do enough. So the court would have to add a provision. Not subtract. There is nothing to subtract. There's an addition and courts have been reluctant to do that. They feel much more comfortable cutting something out than putting something in.
04-1144 +++$+++ 13916 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect, Justice Ginsburg, I don't think that accurately describes the way the courts have approached as-applied cases. They often hold statutes unconstitutional as applied. Think of Wisconsin against Yoder. This Court said that a general compulsory education statute didn't apply to the Amish. It's just unconstitutional as applied. They didn't think, boy, you know, the Wisconsin legislature didn't expressly put in an exception --
04-1144 +++$+++ 13917 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Nobody asked them to do anything other than that.
04-1144 +++$+++ 13918 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that's true, Justice Ginsburg, but it just shows that that's the way that this Court approaches as-applied cases. It's not a matter of reading something in. its saying the statute doesn't apply. Thank you.
04-1144 +++$+++ 13919 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General. Ms. Dalven, we'll hear now from you.
04-1144 +++$+++ 13921 +++$+++ FALSE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice and may it please the Court: The unfortunate reality is that some pregnant teens experience medical emergencies for which the appropriate care is an immediate abortion. As the nation's leading medical authorities have explained, delaying appropriate care for even a very short period can be catastrophic and puts the teen at risk for liver damage, kidney damage, stroke and infertility.
04-1144 +++$+++ 13922 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose I am concerned that the record doesn't explain to me one way or the other whether or not your and the medical profession's definition of immediate allows time to make one telephone call to a judge.
04-1144 +++$+++ 13923 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, several responses. First, the undisputed evidence here is that women in some emergencies, every minute is critical. Every minute puts them at risk of losing their future fertility and of major organ damage. That is confirmed by the nation's leading medical authorities which say that there is - that even very short delays --
04-1144 +++$+++ 13924 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, there can be nurses or attendants that can get the judge on the line.
04-1144 +++$+++ 13925 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. Two responses. First, the procedures that we submitted in our supplemental brief that were approved by the New Hampshire Supreme Court made quite clear that there is no procedure for getting the judge on the phone. And in addition, any delay --
04-1144 +++$+++ 13926 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I've looked at those procedures and it seems to me that those are interpreted as what should happen in the ordinary case. They certainly don't preclude making a phone call and there can be phone calls for warrants in criminal cases in New Hampshire. That's specifically provided.
04-1144 +++$+++ 13927 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, but I believe that as Justice Breyer pointed out, if this emergency happens on a Saturday, there is no provision whatsoever for the minor. In addition --
04-1144 +++$+++ 13928 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The problem was, it seems to me, that the bypass procedure can go a long way toward saving this statute, but this was not litigated in the trial courts. We don't know what New Hampshire's position is going to be. We don't know what the facts are.
04-1144 +++$+++ 13929 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think what is quite clear from all the briefs is that once a minor arrives in the emergency room, it is too late for her to go to court. There is, as we said, every minute is critical and any delay from the time that the doctor faces a pregnant teen, determines that she must have an immediate abortion, any delay from that point forward puts the minor's health at risk.
04-1144 +++$+++ 13930 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, Surely not the delay for a quick phone call. Let's assume New Hampshire sets up a special office open 24 hours a day and this is the abortion judge, and he can be reached any time anywhere. It takes 30 seconds to place a phone call.
04-1144 +++$+++ 13931 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-1144 +++$+++ 13932 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is really an emergency situation? I guess if that's the case, the doctor better not put on his gloves.
04-1144 +++$+++ 13933 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, I think then that the question would be what would be the purpose in such a statute if all you had to do was literally call a number and the judge would say, okay. If the judge had no time -- the nurse had no time to relay the facts, the judge had no time to ask any questions, the judge had no time to consider the evidence or look at the law, there is a real question about what potential purpose there could be of requiring even that small delay before a minor gets the immediate treatment she needs.
04-1144 +++$+++ 13934 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The purpose is to save the statute which has thousands of applications that are valid.
04-1144 +++$+++ 13935 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But Your Honor, I don't think that putting a teen's health at risk, respectfully, is -- I don't think saving a statute is worth putting a teen's health at risk.
04-1144 +++$+++ 13936 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, if your objection goes to the adequacy of the bypass procedure, what is wrong with a pre-enforcement challenge by physicians, presumably with standing, challenging the bypass procedure? Why should you be able to challenge the act as a whole if your objection is so narrowly focused?
04-1144 +++$+++ 13937 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Two points, Chief Justice Roberts. First is that our objection isn't to the bypass process. We believe that there would be -- regardless of how good the procedures the New Hampshire Supreme Court set up, there would still be inherent delay between the time a doctor diagnoses a patient and the time they get to court and get the order. So it's not a problem with the judicial bypass. The second question --
04-1144 +++$+++ 13938 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's a problem that arises only in the emergency situations.
04-1144 +++$+++ 13939 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-1144 +++$+++ 13940 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So bring in a pre-enforcement challenge concerning compliance with the act in emergency situations. Why does that even implicate the vast majority of the cases that don't create emergency situations?
04-1144 +++$+++ 13941 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As Justice Ginsburg pointed out, we believe that is this case. There is nothing between this case -- different between this case --
04-1144 +++$+++ 13942 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This case doesn't involve an emergency situation. This is a facial challenge. There is no case at issue at all.
04-1144 +++$+++ 13943 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the State conceded a pre-enforcement challenge brought by a doctor before any particular patient was at risk would be proper.
04-1144 +++$+++ 13944 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but what resulted here, it was the invalidation of the entire statute and all of its applications? Is that how it now stands?
04-1144 +++$+++ 13945 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That believe is how --
04-1144 +++$+++ 13946 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay, so the question you're being asked is, how can that be narrowed in some fashion to focus on the problem? The statute may well have a majority of valid applications. So how can we narrow the application? And what of our doctrines allow a narrower application? So you need to focus on that. Obviously, it's a matter of concern.
04-1144 +++$+++ 13947 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure. I think this Court in Casey addressed that consideration. And Casey was essentially this case, a pre-enforcement challenge brought to the adequacy of the medical emergency exception. And this Court held that if the law prohibited an immediate abortion for some of the very same conditions we outline here, it would have been unconstitutional.
04-1144 +++$+++ 13948 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's because the Court explained the inadequacies it identified were present in the large fraction of cases. We don't know if that's true here.
04-1144 +++$+++ 13949 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Respectfully, Your Honor, not with respect to the medical emergency exception. I think that was true with respect to the spousal notice provision, but not at all with respect to the medical emergency exception. In this case, it was -- we're talking about the same conditions that were in Casey and here as well. And actually here there were additional considerations because in Casey, there was a medical emergency definition that extended to some health threatening circumstances and here there is none.
04-1144 +++$+++ 13950 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So why wouldn't it be entirely adequate to protect what you're concerned about to say this New Hampshire statute is unconstitutional to the extent that it fails to provide an exception for situations where there is imminent danger to health, and then all those immediate dangers to health situations would be left unregulated. The statute doesn't reach them. But nonemergency cases would continue to be governed by the statute. Why couldn't -- in other words, why wasn't that the appropriate judgment for the First Circuit to have entered in this case, to say statutes fine for nonemergency cases, but for emergency cases, there is effectively no law?
04-1144 +++$+++ 13951 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that would solve the constitutional problem in this case, but I believe it is not the best course for three reasons. First, as this Court has already discussed, the States around the country have adopted at least 10 different medical emergency definitions. And this Court has no way to know which if any of those formulations --
04-1144 +++$+++ 13952 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you wouldn't have -- it would be that the emergency is not regulated. The private doctors can act in a medical emergency. They are not controlled by any legislation.
04-1144 +++$+++ 13953 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. But many of the States -- a few States have chosen to have special exceptions that just say medical emergency. Most of them define --
04-1144 +++$+++ 13954 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But we're dealing with New Hampshire. We have a specific case that challenged New Hampshire's law. So can you focus on this one?
04-1144 +++$+++ 13955 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. I think we still don't know which definition New Hampshire would use.
04-1144 +++$+++ 13956 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, suppose it were from your point of view. I don't know from the other side's point of view, I guess it would satisfy you to say that this statute can not be enforced in any circumstance in which a physician certifies in good faith that he believes an immediate abortion is necessary for the health of the mother. All you're looking to is the state of mind of the physician. Now, the problem that I think we would see with that is you would then be writing into the law the broadest possible definition of what that health exception means. So I'm not sure the New Hampshire legislator would have wanted to do it and I'm not sure the other side would like to do it. But looking at it from your point of view, do you have any objection to it?
04-1144 +++$+++ 13957 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, that's correct, Your Honor. That would solve the constitutional problem here, but Your Honor is right, I think there is a significant concern about whether that's what New Hampshire would have done --
04-1144 +++$+++ 13958 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but that would be litigated in a pre-enforcement, as-applied challenge. I mean, you don't assume -- the fact that this narrower focused proceeding is going to be -- could be brought doesn't mean -- doesn't answer the question of how it's going to come out. But presumably the litigation would be very similar to what we've seen in this case, in which a doctor is saying, well, you do need an immediate medical exception. Others are saying the judicial bypass adequately addresses the concerns. But it would be focused on the provision that is causing you concern rather than the statute as a whole.
04-1144 +++$+++ 13959 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I believe that that really is this case. There is nothing in the complaint that says this is a facial challenge, and we only want a declaration that the statute is unconstitutional and enjoin it in its entirety, and if we can't have that, we want nothing else. We expect --
04-1144 +++$+++ 13960 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's what happened and you're here defending that judgment.
04-1144 +++$+++ 13961 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, and we believe it was the proper course, but there is nothing in the complaint that says that we only want a total invalidation.
04-1144 +++$+++ 13962 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then is there any objection by you to remanding this thing to let it be more narrowly focused?
04-1144 +++$+++ 13963 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe it is not the better course for three reasons. One is we can't tell what exception the New Hampshire legislature would have chosen. In addition, I think there is real cause for concern about rewriting this law for New Hampshire. If this Court says that that's the proper course, I believe that the federal judiciary will be faced with rewriting abortion law after abortion law after abortion law.
04-1144 +++$+++ 13964 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your complaint asked for a preliminary and permanent injunction against the act.
04-1144 +++$+++ 13965 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, that's right, Your Honor. Also two points, though. We asked for any other relief that is just and proper and we had other claims that could not be solved by a more narrow -- by more narrow relief, we claimed that the act's judicial bypass doesn't -- isn't sufficient under this Court's case -- this Court's decision in Bellotti II, it doesn't provide for confidentiality and then there is no way to remedy that without facial invalidation.
04-1144 +++$+++ 13966 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't want you to agree to this unless you've focused on it and think it really is your position. I take it, as I'm listening, that you would not object to an injunction that says that this statute cannot be applied in any circumstance where a doctor, in good faith, himself or herself, believes that there is a health emergency, period. Now, I take it as soon as we get more narrow than that, you might object on the ground that that will leave ambiguous cases where there really is a health emergency, but the doctor doesn't know what to do and would have to go to court, by which time it will be too late.
04-1144 +++$+++ 13967 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
04-1144 +++$+++ 13968 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Have I stated it correctly? You've focused on it, thought about it, stated it?
04-1144 +++$+++ 13969 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I appreciate that and yes, Your Honor, I have.
04-1144 +++$+++ 13970 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Thank you.
04-1144 +++$+++ 13971 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about in good faith and with substantial support in sound medicine.
04-1144 +++$+++ 13972 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
04-1144 +++$+++ 13973 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, why should the doctor who is very negligent and doesn't know what he's doing, why should he be protected?
04-1144 +++$+++ 13974 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I believe your question focuses on exactly why this Court should facially invalidate. It requires this Court to decide additional constitutional questions --
04-1144 +++$+++ 13975 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's just one more condition, good faith is not enough. You can have a good faith quack.
04-1144 +++$+++ 13976 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we believe that would be unconstitutional, and because it would subject a doctor to going to jail for providing care that he honestly believed was necessary to save a patient's organs, to save a patient's future fertility, to save a patient's vision. We believe particularly in an area as controversial as abortion, that that is inappropriate. But again, after --
04-1144 +++$+++ 13977 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm sure that's the case with regard to other medical procedures, if you're grossly negligent, it's a criminal offense, I'm sure, in most States.
04-1144 +++$+++ 13978 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe it's generally a medical malpractice and not a ciminal liability. But in any event, this is a question for the Court. And in National Treasury Employees Union, this Court said that we're writing more narrow relief requires the Court to answer additional constitutional questions not directly presented by the case, the appropriate course is to facially invalidate and let the legislature decide how to write the exception. We believe that's the appropriate course here as well. In addition, going back to the legislative abdication point, we believe that facially invalidating -- rewriting the law here would eliminate any incentive for legislatures to pass constitutional laws in the first instance. This was a clear requirement. This Court has said for 30 years you cannot endanger women's health, you must have an exception for health threatening emergencies. New Hampshire did not include such an exception. And if this Court rewrites it, it will in essence give a green light to legislatures around the country to pass broad restrictions and leave it women and their doctors to go to the courts and be the full defenders of the right --
04-1144 +++$+++ 13979 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If the model of this case, is doctors come to court, doesn't have to have an actual patient class action and the court says the statute cannot be applied to a medical necessity, period. No fancy frills of adding another things which courts generally don't do. But then there would be no regulation of medical emergencies. Why isn't that what -- doesn't that fit the pattern of the case you've brought and couldn't the First Circuit have done that and then you would have no complaint about the rest of the statute?
04-1144 +++$+++ 13980 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The First Circuit could have done that. We did have additional claims like confidentiality.
04-1144 +++$+++ 13981 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, I know that.
04-1144 +++$+++ 13982 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the First Circuit could have done it. We believe the First Circuit was correct in not doing that for the two reasons I discussed and an additional reason as well. As Justice Souter pointed out, we don't know at all that the legislature would have passed this law with a broader exception. Indeed, 153 New Hampshire legislators have told this Court that there is significant doubt about whether they would. And I know that might be surprising to some people, but I would like to explain why, in the world of abortion politics, it's not at all surprising. Some folks with good faith believe that any exception beyond one for a life-saving emergency renders a ban -- a abortion restriction meaningless. And they refuse on principle to vote for any broader exception, any ban, any restriction that has a broader exception.
04-1144 +++$+++ 13983 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then they shouldn't have voted for the severability provision which clearly says if, in one of its applications, it's invalid, the rest can be given effect without the invalid provisions. I mean, the severability provision really just flatly contradicts your assertion that the New Hampshire legislature wouldn't want this to happen.
04-1144 +++$+++ 13984 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, a few things. First, we don't believe that the severability clause directs the court to sever applications. Second, neither this Court nor New Hampshire courts treat severability clauses as mandates. The question is still whether, if there is significant doubt about whether the legislature would have wanted it, they do not sever, and as particularly whereas here, this Court would have to make decisions for the legislature about what that exception should look like.
04-1144 +++$+++ 13985 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask this historical information? Since the decision of the district court and the decision of the court of appeals, has the legislature considered enacting a different statute that would solve the problems?
04-1144 +++$+++ 13986 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They have not, Your Honor. There has been no bill put forward, to my knowledge.
04-1144 +++$+++ 13987 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems to be that it wouldn't have been all that hard to do. I don't know.
04-1144 +++$+++ 13988 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Your Honor. They could have enacted a law with a medical emergency exception and we could have all gone home.
04-1144 +++$+++ 13989 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, maybe they assumed that the medical health exception of the sort you're arguing for is not constitutionally required and that's what would be litigated in a narrow focused challenge on the adequacy or inadequacy of a bypass procedure. Maybe they assumed it would follow the Salerno precedent, and they didn't have to worry about severing in light of particular unconstitutional applications.
04-1144 +++$+++ 13990 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Perhaps that is true, Your Honor, but I still believe that that is this case, that there really is no different -- I mean, in Casey, the plaintiffs brought a facial challenge before the law took effect to the adequate -- challenging the adequacy of a medical emergency exception. And this Court indicated that if the law prohibited an immediate abortion for women with the conditions Dr. Goldner described in his declaration here, it would have been unconstitutional and some relief would have been appropriate, even though that was a facial challenge and even though the alleged inadequacies of the medical emergency would harm relatively few women. So I don't think that there is any bar to this Court if they --
04-1144 +++$+++ 13991 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think the statute, putting aside the medical emergency issue under our precedence, is the parental notification aspect of the statute constitutional?
04-1144 +++$+++ 13992 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. We had additional claims --
04-1144 +++$+++ 13993 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Other than the confidentiality?
04-1144 +++$+++ 13994 +++$+++ TRUE +++$+++ MS. DALVEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We believe we had three claims, the health exception, the medical emergency exception for health threatening emergencies. The death exception we believe is also inadequate and the confidentiality. In addition, the procedures that the court issued -- the New Hampshire Supreme Court approved raise an additional problem as well. So there are claims in addition to the health threatening emergency. If there are no further questions from the Court. Thank You.
04-1144 +++$+++ 13995 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Counsel. The case is submitted.
04-1152 +++$+++ 13999 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first this morning in Rumsfeld versus Forum for Academic and Institutional Rights. General Clement.
04-1152 +++$+++ 14001 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The Solomon Amendment conditions the Federal funding of educational institutions on receiving something that any donor would expect, the opportunity to recruit students educated at the funded institutions. That opportunity allows the military a fair shot at recruiting the best and the brightest for the military's critical and vital mission. The Federal Government does not insist on any predetermined level of access; rather, it simply asks what other employers receive. Likewise, the recipient schools remain free to criticize the military and its policies, and, of course, they remain free to decline Federal funds altogether. As a result of these circumstances, the Solomon Amendment comports with both the Constitution and with common sense.
04-1152 +++$+++ 14002 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ When you say that it asks what other employers receive, but these institutions, I gather, would not allow other employers, who have the same policy against the hiring of homosexuals, to interview at their institutions. So, you're receiving what other employers in the same situation would receive.
04-1152 +++$+++ 14003 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think, Justice Scalia, that you have to look at the -- I think, the statute in two steps. One is, I think it's quite clear that it gives the military a right to gain access to campus as a condition, that it has -- that they have to gain access to campus in order to perform their military recruitment.
04-1152 +++$+++ 14004 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Yes, but it says -- I thought it says that the military must have equal access with any other employer. Now, every other employer is subject to the same policy, presumably, of the law school.
04-1152 +++$+++ 14005 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, with respect, Justice O'Connor, I think there's several points to be made in response to that. First of all, I think the Solomon Amendment itself is a recognition that the military is not like any other employer for purposes of its policy and its treatments of homosexuals. And I think that, unlike any other employer, the military's policy is a result of a congressional mandate. And --
04-1152 +++$+++ 14006 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's fine, but you were the one that made the argument that they want the same access as other employers. That's --
04-1152 +++$+++ 14007 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And what --
04-1152 +++$+++ 14008 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- when you -- I just --
04-1152 +++$+++ 14009 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- what I would say --
04-1152 +++$+++ 14010 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- want to make sure what the calculus is, at the outset.
04-1152 +++$+++ 14011 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, and Justice Kennedy, I think the point I would say is, in terms of gaining access to campus, we want to gain access at a level, and under circumstances, that perhaps some other employer would be excluded. Well, once access is gained, then the question arose under the prior version of the statute, all right, if access is gained, what level of access suffices? And on that second-order question of what level of access suffices, then you look to what is provided to any other employer. And so, that's why, when I say that we don't ask for any predetermined level, we don't ask for seven meetings a year, we don't ask for entrance into the public-address system or the e-mail system. We simply say, "Once you let us on campus, just give us, and extend to us, an opportunity to recruit on the same terms as others." And that obviously reflects the commonsense judgment that the military is competing for the same pool of students that the other employers are competing for.
04-1152 +++$+++ 14012 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The constitutional argument, I guess, is, "Does the Constitution require access -- is -- does it permit a statute which says you have to give access to the military, when you wouldn't give access to any other employer?"
04-1152 +++$+++ 14013 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right, Justice Breyer.
04-1152 +++$+++ 14014 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Now --
04-1152 +++$+++ 14015 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And, of course, we take the --
04-1152 +++$+++ 14016 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, then what you're saying, it --
04-1152 +++$+++ 14017 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- position that --
04-1152 +++$+++ 14018 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- and then what's the answer to that question, "Does the Constitution" -- how does the -- what's the answer?
04-1152 +++$+++ 14019 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think there's -- I mean, there's -- the Constitution is -- has no difficulty with such a statute. It is this statute. As I say, there's -- if you want to think about it being preferential entry into campus, and then, at that point, equal access on terms of the -- the terms that are extended -- however you want to think about it, though, there's no difficult constitutional question here.
04-1152 +++$+++ 14020 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, your argument --
04-1152 +++$+++ 14021 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but it seems me you've got us off galloping in the wrong direction. The statute doesn't require simply giving the same access that you give to other employers. It requires much more than that. It requires that they -- it prohibits, or cuts off, funds if an institution either prohibits or, in effect, prevents the Secretary of a military department from gaining access to campuses for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer. So, it seems to me that the statute demands more than simply you give the same access as all other employers. If you allow any other employer, you have to give it to the military in the same manner.
04-1152 +++$+++ 14022 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's right, Justice Scalia. I'm -- and I'm sorry if I got us off on the wrong foot.
04-1152 +++$+++ 14023 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ General --
04-1152 +++$+++ 14024 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think there is this debate --
04-1152 +++$+++ 14025 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but it is an important question, because the -- there is an amicus brief that says, "Go read the statute." And, really, the statute was not about homosexuals in the military, it was a statute about universities in Vietnam not letting military people on campus. So, in the -- at the heart of the statute was a matter which was unique to the military. Now, this is a matter that isn't unique to the military. So, why not interpret the statute in the way that the amicus brief suggests in order to avoid a difficult constitutional question?
04-1152 +++$+++ 14026 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, a couple of points, Justice Breyer. I don't think there is a difficult constitutional question to be avoided here, and I'll get back to that whenever I can. As to the statutory-interpretation question itself, I think that in -- the proper frame of reference here is probably not the original 1969 version of this, which conditioned only NASA's fund. The original starting point is probably about 1996, when the first version of the modern Solomon Amendment was introduced. And there have been a couple of iterations of it, but I think one important reference point is the version that was in force at the start of this litigation, and that's actually reproduced at page 88(a) of the petition appendix in the District Court opinion. And if you look at that against 88(a) of the petition appendix, there would be no question that what is at stake here is access to the campus, and the amicus argument that's being raised is not even available; because the statute at that point is, I think, in fairness, materially identical, except for that last clause, which says "in a manner equal in scope to -- in character to that of any other institution." So, it's clear that when this litigation starts, there's no argument available to the amicus that the statute effectively accomplishes nothing. Now, what happens under this version of the statute is, a second-order question arises. Okay, the -- in order to comply with the Solomon Amendment, universities have to give access, they have to allow the military to gain entry and gain access to the students in the terms of the then-extant statute. The --
04-1152 +++$+++ 14027 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I interrupt with one --
04-1152 +++$+++ 14028 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure.
04-1152 +++$+++ 14029 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- brief question? Would that be true if the university didn't allow any access whatsoever to any employer?
04-1152 +++$+++ 14030 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As a regulatory matter, the military took the position that if they simply barred access to --
04-1152 +++$+++ 14031 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No --
04-1152 +++$+++ 14032 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- anybody --
04-1152 +++$+++ 14033 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- not the regulatory matter. The statute.
04-1152 +++$+++ 14034 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think you could read the statute either way on that question, Justice Stevens. They interpreted it to say that there was no equal -- there is no obligation to give entry if no employer was on campus at that time. The other thing they interpreted in the statute as a regulatory matter, though, was this second-order question of, "All right, if they get some access, is unequal access enough?" And as a regulatory matter, they said, "No. We need access that is equal in character and scope to that provided to any other employer." And then what Congress did in the iteration of the statute that's at issue here, which is reproduced starting at page 185(a) of the petition appendix is they effectively codified and ratified that regulatory interpretation by adding the phrase "in a manner that is at least as equal in quality and scope to the access to campuses and to other students that is to -- provided to any other employer."
04-1152 +++$+++ 14035 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ General --
04-1152 +++$+++ 14036 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I think --
04-1152 +++$+++ 14037 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- Clement, do I understand, with respect to that brief that offered a statutory interpretation to avoid a constitutional question, your answer is, that would be an unreasonable interpretation of the statute that we now have? And if we're talking about a predecessor statute in 1968, from the Vietnam days, that -- this would have been a highly academic question, because there weren't any such policies in any law schools with respect to recruiting.
04-1152 +++$+++ 14038 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, that's true, Justice Ginsburg. That's why I said, in response to Justice Breyer, that I think that the proper point to start to focus on is the -- these -- is the 1994 Solomon Amendment. And, at that point, there is a question about this policy. At that point, the American Association of Law Schools does have its recruiting policies beginning in place, and I think the provision has been amended a number of times in the years since 1994. There have been changes in the scope of the funding that's covered. First, student-aid funds were put in, then they were taken out. And then, this is the most recent iteration of the provision. There's no question that what's at issue here is more than just the Vietnam-era concerns about ROTC presence on statute, because that's addressed in a different subsection of the statute. That's addressed in 10 U.S.C. 983(a). So this provision, 10 90- -- 10 U.S.C. 983(b) is specifically addressed at the problem of access to campuses for recruiting. And, I think, especially when you read the statute in light of the relevant history of the prior administrative interpretation, and that being codified and ratified by Congress, it's very clear that this phrase "in a manner that is at least equal in quality and scope to the access provided to any other employer," is just that, it's a regulation of the manner of access, once access is granted. And it addresses this difficult question of, If you allow some entry and access onto campus, what level of access is sufficient? And so, I think that --
04-1152 +++$+++ 14039 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What does Title X of the United States Code deal with?
04-1152 +++$+++ 14040 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It deals with the military.
04-1152 +++$+++ 14041 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why do you chose to defend this principally on the basis of the Spending Clause, and not on the basis of what it -- what it was, seemed to me, enacted in order to achieve, and that is the congressional power to raise and support armies.
04-1152 +++$+++ 14042 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia, I think the statute is clearly supported under both provisions, under the spending authority and the Article I authority to raise and support armies. I think, in answering your question, we tended to focus on the fact that it was a spending condition, because we thought, under this Court's precedence, that made it an even more straightforward case. We certainly think it would be constitutional, even if it were a direct imposition, and we certainly think the fact that this is an exercise of Congress's undoubted authority to raise and support an army, is relevant to the constitutional analysis. And if I could move over to the constitutional question and address that for a minute, I think one of the arguments that's raised on the other side is that there's an interference with associational interests in this case, and I think there are other statutes that, frankly, have much more of an interference with a university's associational interest. I mean, Title VII, for example, regulates who can be members of the university. And I raise that also because another provision in Title -- in terms of this same area of the military, requires that there not be discrimination against veterans in hiring and employment. And you could easily see that a university could take their position to its logical conclusion and say, "In order to show just how much we don't like the military's policy, we're not only going to not let military recruiters on campus, but we are going to not hire former military people, veterans, and we're not going to admit them to our classes." Now, who's in the classroom, and who's a member of the university --
04-1152 +++$+++ 14043 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That would --
04-1152 +++$+++ 14044 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- seems --
04-1152 +++$+++ 14045 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- be rather farfetched. The pitch that's being made is an equality pitch, that we are teaching our students equality, the equal stature of all people. So, I think that your example does not fit --
04-1152 +++$+++ 14046 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, with respect, Justice Ginsburg, I'm not sure I understand why not. It's the same idea. In order to teach equality, that there should be no discrimination against homosexuals, we're going to exclude, (a), military recruiters, and, while we're at it, the former military, as well, because they voluntarily joined the forces knowing that they had a discriminatory practice. It's no stretch of the imagination to think that the principle that's being articulated by Respondents, would stretch well beyond simply a direct antidiscrimination motive. For example, NYU -- this is in the joint appendix, at page 153 -- NYU, for 3 years, had a policy of excluding recruiters from the State of Colorado, simply because Colorado had passed Amendment II, which this Court dealt with in the Romer case. And so, it's not a matter of saying that, "Well, you know, the only think that's at issue here is excluding employers that are, themselves, discriminatory." The free-speech interests that are articulated on the other side, would extend to any basis for criticizing the military, whether it was not liking the war in Iraq, the war in Afghanistan, or the discriminatory hiring policies. I also think, with respect to the issue of discrimination, it's worth pointing out here that there's more than one way to understand whether or not the military's policy is discriminatory. Certainly respondents are entitled to view it as being discriminatory. But the Congress that mandates this same policy towards homosexuals, I think, is equally entitled to look at it and say, "No, there's no discrimination going on here, because you have to take into account the special role of the military."
04-1152 +++$+++ 14047 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, but even if you do that, you're still left, it seems to me, with the problem -- whether you characterize the problem as discriminatory and antidiscriminatory university policy or not, you're still left with a speech problem that they raise, that, in effect, you are forcing them, in effect, to underwrite your speech, up to a point, and you are forcing them to change their own message. You're forcing them into hypocrisy, in one alternative. And those arguments don't depend upon the -- sort of, the discriminatory character of what may be at stake.
04-1152 +++$+++ 14048 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's exactly right Justice Souter, and I think those arguments would be the same even if what was going on here was a concern about the military's other policies. You would still have a concern that the military is being forced onto campus to make its own speech, and you would still have the concern that that interferes with the message --
04-1152 +++$+++ 14049 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, discrimination --
04-1152 +++$+++ 14050 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the university --
04-1152 +++$+++ 14051 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- or no discrimination, you've got a speech issue that you're going to address.
04-1152 +++$+++ 14052 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree. I mean, I think, ultimately, that cuts in our favor, because it shows that the other side's position is not limited to this narrow context, but is a much broader first-amendment claim. Now, turning to that first-amendment claim, I think what's wrong with that claim is several things. I think, with respect to what the military itself wants, it simply does not want a -- primarily a speech activity to take place, it wants access for recruiting, which is a traditional commercial enterprise, it is an activity that is something that is regulated by Title VII in other Federal statutes. Sure, there may be some incidental speech involved in that, but primarily it is an instrumental activity designed to get --
04-1152 +++$+++ 14053 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It happens, in this case, to be specifically authorized by the Constitution.
04-1152 +++$+++ 14054 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does, indeed, Justice Scalia, and I think, though -- I mean, there is this sense in which we certainly concede that there maybe some incidental speech involved; certainly, military recruiters are engaged in speech. I'm -- we're not sure that's really the relevant speech. But even the university itself --
04-1152 +++$+++ 14055 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but you're making a -- if I understand what you're saying, you are making a kind of O'Brien argument that the -- that the burden on speech, whatever it may be, is an incidental burden to something else. Well, that -- I think we have to draw this line between recruiting, on the one hand, which is what the military wants to do, and the Solomon Amendment, on the other hand. As I understand it, the Solomon Amendment is directed, or is responsive, entirely to positions taken by law schools on, among other things, first-amendment expressive grounds, so that if we are going to address the Solomon Amendment, I think we are addressing an exclusively first-amendment-speech expression issue.
04-1152 +++$+++ 14056 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Souter, I guess -- I'm inferring that you're drawing that conclusion from some of the statements of some of the floor sponsors about their purposes enacting the Solomon Amendment. I mean, if you look at the text of the Act alone --
04-1152 +++$+++ 14057 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't --
04-1152 +++$+++ 14058 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I don't think --
04-1152 +++$+++ 14059 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- know of any other reason for the Solomon Amendment.
04-1152 +++$+++ 14060 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think the reason for the Solomon Amendment is to ensure that military recruiters, in fact, have an equal opportunity to recruit the same pool of individuals that all the other employers are trying --
04-1152 +++$+++ 14061 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But --
04-1152 +++$+++ 14062 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to recruit.
04-1152 +++$+++ 14063 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But they're -- but the Solomon Amendment, in order to accomplish that, is addressed to a particular expressive problem which occurs for the military -- and for the law schools, for that matter -- in law-school recruiting. So, it seems to me that -- for -- I mean, my only point is that the Solomon Amendment seems to have one objective. Whereas, the "don't burn your draft-card rule," in O'Brien, had two -- or had a -- let's say, had a primarily nonspeech objective with an incidental-speech burden. Here, the sole objective, in the real world, seems to be an expressive objective.
04-1152 +++$+++ 14064 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if by -- "the expressive objective" you're talking about is the military's own recruiting, I guess --
04-1152 +++$+++ 14065 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, this express --
04-1152 +++$+++ 14066 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I agree with you.
04-1152 +++$+++ 14067 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but the expressive objective is, the law schools are taking a position on first-amendment grounds. That position is interfering with military recruitment. No question about it. I don't know how much, but I will assume that there is no question about it. The Solomon Amendment is addressed solely, as I understand it, at the expressive activities which have, as you say, this interference. Its sole objective is expressive.
04-1152 +++$+++ 14068 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I would disagree, Justice Souter. If the -- if the law schools were denying access to military recruiters, for any reason, be it a first-amendment reason that they'd say it's a first-amendment reason, or just because they couldn't be bothered, the Solomon Amendment would be written exactly the same way, which would say, "Look, the military has an opportunity to get onto campus, and, once it gets there, it ought to get the same basic opportunities as other employers."
04-1152 +++$+++ 14069 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You cannot convert a law into a law directed at the first -- at first-amendment rights, can you, by simply saying, "The reason I am disobeying it is to express -- whatever, disaffection with the war, my objection to homosexuality, or anything else -- or to homosexual discrimination -- or anything else"? Does that convert it to a law directed against the first amendment?
04-1152 +++$+++ 14070 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely not, Justice Scalia. And I would go further and say it's also not a problem, if, in the real world, the conduct that Congress sought to regulate was, in fact, in practice, generated by first-amendment concerns. I think that describes O'Brien.
04-1152 +++$+++ 14071 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, in --
04-1152 +++$+++ 14072 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Well, let me ask another question that may shed a little light on it. Does the Solomon Amendment pose any restrictions on the extent to which the law schools can distance themselves from the military's views? Can there be signs up at every recruitment office, saying, "Our law school doesn't agree with any discrimination against gays"? I mean, can they come forward with their position on this in every recruitment office without violation of the amendment?
04-1152 +++$+++ 14073 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, they can, Justice O'Connor. I think they would be, in fairness -- I want to be clear -- I think there might be a line where there would be -- the recruitment office could conduct itself in a way that would effectively deny access. But I think, with that caveat, there is --
04-1152 +++$+++ 14074 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But --
04-1152 +++$+++ 14075 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- nothing in the Act that prevents the universities --
04-1152 +++$+++ 14076 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let me ask you --
04-1152 +++$+++ 14077 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- from disclaiming --
04-1152 +++$+++ 14078 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- this question, to follow up on Justice O'Connor's thought. Can -- are you saying that the school can engage in speech expressing its views about the military policies, can it engage in symbolic speech by affording access, which is equal in all functional requirements, but yet sends a message that they are really disagreeing with what's going on by, say -- let a law school say, "Well, for -- most employers will let you use the regular law-school placement facilities, but, for the military, we will require you use the college facilities to send a message that we disapprove, if the college facility is equally of -- good, as a matter of functioning"?
04-1152 +++$+++ 14079 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Stevens, I would say, to the -- I think, the main thrust of your question, no, which is to say that if what you have in mind is really forcing them to go to the undergraduate campus, I think the military would take the position that that's not equal in scope. Now, if there's a way, though --
04-1152 +++$+++ 14080 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But is it not equal because of the message it sends or because it denies the opportunity to recruit as effectively?
04-1152 +++$+++ 14081 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's the latter, Justice Stevens, and only the latter --
04-1152 +++$+++ 14082 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What if I had an example where they were equal -- equally effective as recruitment avenues. Could they -- could they make the military take one that was equally effective, but it sent a message, "Well, we really don't like what you're doing"?
04-1152 +++$+++ 14083 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I mean, my own --
04-1152 +++$+++ 14084 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Sort of like a separate-but-equal.
04-1152 +++$+++ 14085 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1152 +++$+++ 14086 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I mean -- [Laughter].
04-1152 +++$+++ 14087 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I guess I'm -- I'm resisting a little bit just because I'm not -- I think it would depend on the --
04-1152 +++$+++ 14088 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, the --
04-1152 +++$+++ 14089 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- hypothetical.
04-1152 +++$+++ 14090 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the point I'm trying to make is, Does your agreement, that you can engage in speech by posting banners or handing a note, apply to symbolic speech --
04-1152 +++$+++ 14091 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It could --
04-1152 +++$+++ 14092 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the kind of conduct that is symbolic speech?
04-1152 +++$+++ 14093 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It could apply to some symbolic speech, I believe. It's just -- I'm having trouble, because, in a practical matter, if you look at the record here, I think it's telling. If you look, at joint appendix, at pages 215 and 219, describes the real situation at Boston College. And they want to say that, "Well, it's not really much of an imposition on the military, because all you have to do is get the recruiting list from the reserve desk at the law library, and then go to" --
04-1152 +++$+++ 14094 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, that's a functional --
04-1152 +++$+++ 14095 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the main campus, which is a mile and a half away.
04-1152 +++$+++ 14096 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the --
04-1152 +++$+++ 14097 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's a functional difference.
04-1152 +++$+++ 14098 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the resistance to any statute, I assume, could be justified as symbolic speech.
04-1152 +++$+++ 14099 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, and I think -- I mean, I'm -- I think that some resistance by some parts of the university might be fine. I think if the recruiting office -- this is the caveat I tried to give Justice O'Connor -- if the recruiting office engages in conduct that effectively negates the access that they're providing, then I think you would have a different situation.
04-1152 +++$+++ 14100 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ General Clement, can you be affirmative now? Because we have an example, from Justice Stevens, which is the Yale example. The -- it was the main campus, instead of the law school. What -- - the recruiter is there. He's in the same room that other recruiters use. What can the law faculty do to disassociate itself from -- to say that, "We don't tolerate discrimination of any kind"? What can the law school do, concretely, while the recruiter is in the room?
04-1152 +++$+++ 14101 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I mean, concretely, they could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests. I would draw the line, though, at saying that they have to go to the undergraduate campus, because I think, as a practical matter --
04-1152 +++$+++ 14102 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You mean, they could organize a student protest at the hiring interview rooms, so that everybody jeers when the applicant comes in the door and the school could organize that?
04-1152 +++$+++ 14103 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The school could --
04-1152 +++$+++ 14104 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ As -- when it's --
04-1152 +++$+++ 14105 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- organize --
04-1152 +++$+++ 14106 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- when it's, say, a job fair, and all the employers are there, but then they jeer just the -- and the school organizes a line jeering the -- both the recruiters and the applicants, that's equal access?
04-1152 +++$+++ 14107 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that would be equal access. I think you have to draw a practical line --
04-1152 +++$+++ 14108 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm surprised that --
04-1152 +++$+++ 14109 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- here between --
04-1152 +++$+++ 14110 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you think that --
04-1152 +++$+++ 14111 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- between access and allowing the speech, but I think it -- you have to be -- -
04-1152 +++$+++ 14112 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're not going to be an Army recruiter, are you? [Laughter.]
04-1152 +++$+++ 14113 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think the military and the Army recruiters -- and I -- and I won't be one of them -- but I think the Army recruiters are not worried about being confronted with speech, they're worried about actually not being allowed onto the same law schools --
04-1152 +++$+++ 14114 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, --
04-1152 +++$+++ 14115 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They're worried about having students driven off. And if you have jeering and picketing, do you really think that that fulfills the purposes of this amendment?
04-1152 +++$+++ 14116 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know if it would fulfill every purpose, but I think the amendment has to accommodate the first-amendment --
04-1152 +++$+++ 14117 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You think if you --
04-1152 +++$+++ 14118 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- interests at --
04-1152 +++$+++ 14119 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- have jeering --
04-1152 +++$+++ 14120 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a university.
04-1152 +++$+++ 14121 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- jeering and picketing if a black person came to recruit and people didn't -- and a school faculty didn't like blacks?
04-1152 +++$+++ 14122 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that would --
04-1152 +++$+++ 14123 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think that that's an extraordinary position you're taking.
04-1152 +++$+++ 14124 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but, Justice Kennedy, I think you have to distinguish what the Constitution would allow the Government to do and what this statute does, which is to say -- I mean, what you have in mind is a --
04-1152 +++$+++ 14125 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We're talking --
04-1152 +++$+++ 14126 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- race example --
04-1152 +++$+++ 14127 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- about the practical meaning of "equal access."
04-1152 +++$+++ 14128 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, but in -- the practical meaning has to turn on the statute at issue. And Title VI, for example, in the race context, forbids all discrimination because of race. And so, some of the conduct that you have in mind may well violate that statute. And if Congress wants to write a different statute that provides more rights to the military, we would be here defending it as valid first-amendment legislation. But this statute gives, not a right to be free of any discrimination, but a right to equal access. And we think that the right way to frame that inquiry is say, "Access, yes, but be respectful of speech." And the last thing I would say, if I could reserve the rest of my time for rebuttal, is simply that it's worth remembering that the recruiting office is not the heart of first-amendment activity on campus. And if the recruiting office acts in a way that ensures access, and the rest of the university engages in speech, that's a common sense way to accommodate the interest of the military recruiters and the first amendment. If I may reserve.
04-1152 +++$+++ 14129 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General. Mr. Rosenkranz, we'll hear now from you.
04-1152 +++$+++ 14131 +++$+++ FALSE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Your Honor. Mr. Chief Justice, and may it please the Court: This case is not about whether military recruiters will be barred at the campus gates. Congress had a law on the books that guaranteed entry to campus, but that was not what Congress really wanted. So, it passed a new law. What Congress really wants is to squelch even the most symbolic elements of the law schools' resistance to disseminating the military's message, which is why it gave us the current version of the statute. The current version isolates for regulation the most communicative aspects of the law schools' resistance. The law schools --
04-1152 +++$+++ 14132 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, that's --
04-1152 +++$+++ 14133 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- -- are saying --
04-1152 +++$+++ 14134 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm sorry, but the most communicative aspect is saying what you think about a particular policy. This is conduct, denying access to the military recruiters.
04-1152 +++$+++ 14135 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, this is a refusal to disseminate the messages of the military recruiters. It is a refusal to send e-mails, post bulletins, and make arrangements for mutual exchange of ideas. It is "conduct" only in the sense that they are moving molecules, but it's speech that they are being forced to engage in. And I have to emphasize, this case is not about entry. The Solomon Amendment does not require schools to give entry to military recruiters, it requires them to give entry to a recruiter only if they provide entry to some --
04-1152 +++$+++ 14136 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, no that --
04-1152 +++$+++ 14137 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- other employer.
04-1152 +++$+++ 14138 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, if you had a policy that, "We're going to deny any employer that uses tanks," do you think that would pass muster under the Solomon Amendment?
04-1152 +++$+++ 14139 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, for a pacifist religious institution, absolutely.
04-1152 +++$+++ 14140 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about Yale Law School?
04-1152 +++$+++ 14141 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, because it has no morally-based, conscious-driven reason for refusing to disseminate that message.
04-1152 +++$+++ 14142 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, where do you find that? In -- it has to be a morally-based, conscience-driven --
04-1152 +++$+++ 14143 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor --
04-1152 +++$+++ 14144 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought we were talking about freedom of speech, not the religion clauses.
04-1152 +++$+++ 14145 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, what I'm saying is, under the -- under this Court's jurisprudence in the first amendment, it's actually relevant whether the reason for refusing to disseminate the message lies at the heart of the first amendment.
04-1152 +++$+++ 14146 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, is -- what about Hurley? Is there something deeply moral or conscience-driven about the position to exclude the gay-rights contingent in the parade, in Hurley?
04-1152 +++$+++ 14147 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, it was certainly a reason that they gave, and it was based upon a political view of the legitimacy of homosexuality.
04-1152 +++$+++ 14148 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, you're --
04-1152 +++$+++ 14149 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I hasten to add, I'm not arguing that that is a required element of a compelled-speech claim. I'm simply arguing that when someone has a reason for resisting disseminating a message, that situates it further -- closer to the heart of the first amendment. Congress came back, after it --
04-1152 +++$+++ 14150 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
04-1152 +++$+++ 14151 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- had a --
04-1152 +++$+++ 14152 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Excuse me, that -- I understand that, so far as the associational claim may go. But so far as the speech claims may go, I don't understand it.
04-1152 +++$+++ 14153 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I --
04-1152 +++$+++ 14154 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I can say, or refuse to say, anything I want to, for any reason I want to, however bad that reason, however nonmoral that reason is. And I don't see how, in the speech -- on the speech claims, we get into moral basis at all.
04-1152 +++$+++ 14155 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I accept that as a proposition of the compelled-speech doctrine, absolutely. And what I'm trying to point out is that in this case what Congress has done is to engage in the most viewpoint-oriented regulation of speech. The reason Congress does not -- the reason Congress is insisting that the law schools disseminate the recruiting messages is because of the message of the law --
04-1152 +++$+++ 14156 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it doesn't --
04-1152 +++$+++ 14157 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- schools themselves --
04-1152 +++$+++ 14158 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- it doesn't insist --
04-1152 +++$+++ 14159 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in providing --
04-1152 +++$+++ 14160 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It doesn't insist that you do anything. It says that, "If you want our money, you have to let our recruiters on campus."
04-1152 +++$+++ 14161 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, and, under the doctrine of unconstitutional conditions, the analysis is exactly the same.
04-1152 +++$+++ 14162 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Under -- what about South Dakota against Dole? South Dakota had a constitutional right, under the twenty-first amendment, to set whatever drinking age it wanted, and yet we upheld the Spending Clause condition that if they accepted Federal funds, they had to set their drinking age at 21.
04-1152 +++$+++ 14163 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. And in subsequent cases -- and, in fact, in Dole itself -- this Court pointed out that all bets are off when there is a superseding constitutional right. Here, we're talking about the Bill of Rights and the first amendment. I mean, Rosenberger and Rust --
04-1152 +++$+++ 14164 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There's the right to -- in the Constitution, to raise a military.
04-1152 +++$+++ 14165 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that is a Government interest, for sure. All Government interests --
04-1152 +++$+++ 14166 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What --
04-1152 +++$+++ 14167 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- can be --
04-1152 +++$+++ 14168 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What you're --
04-1152 +++$+++ 14169 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- traced --
04-1152 +++$+++ 14170 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What you're arguing is that what is, for all intents and purposes, "conduct" can be infused by the school, at its option, with a first-amendment quality. Yet your argument would allow schools to exclude anybody in uniform from a cafeteria.
04-1152 +++$+++ 14171 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely not, Your Honor, because --
04-1152 +++$+++ 14172 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why not?
04-1152 +++$+++ 14173 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- because --
04-1152 +++$+++ 14174 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's the point?
04-1152 +++$+++ 14175 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- what the law schools are engaging in --
04-1152 +++$+++ 14176 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's an express -- it's an -- it's solely for an expressive purpose.
04-1152 +++$+++ 14177 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, there's a difference between refusing to abide by a universally applicable regulation of conduct, on the one hand, and the Solomon on -- Amendment, on the other hand, which is refusing to assist the dissemination of a message. Recruiting is all about speech. Yes --
04-1152 +++$+++ 14178 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you --
04-1152 +++$+++ 14179 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- it has --
04-1152 +++$+++ 14180 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you do about the -- about the cases where we have required colleges to allow some student activities to put forward their views on campus, when other student activities are allowed to do that? It seems to me that that flatly contradicts the proposition that when you compel an institution to permit somebody else to speak, you are violating that institution's first-amendment rights.
04-1152 +++$+++ 14181 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, that is for public schools, and public schools are subject to the first-amendment rights of those who want to enter their forum. But there is a critical difference between that forum, Your Honor, which the schools opened up to everyone, and the forums in career services, which the schools filter on the basis of one very important --
04-1152 +++$+++ 14182 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but, Mr. Rosenkranz, isn't the -- I thought the distinction was that in determining the forum for recruiting, the university is speaking. The university isn't creating a forum from a lot -- for a lot of third parties; it's speaking, itself. And I understand the essence of your claim to be that its speech is being affected, either by being mixed with something it doesn't want to say or by being, in effect, forced to support it doesn't -- something it does not want to say.
04-1152 +++$+++ 14183 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, it's important to keep in mind that there are two messages going on here, and they are clashing. There is the military's message, which the schools are interpreting as, "Uncle Sam does not want you," and there is the school's message, which is, "We do not abet those who discriminate. That is immoral." And --
04-1152 +++$+++ 14184 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you would take, Mr. Rosenkranz, that same position. If this was not special to law faculties -- I mean, we're told that the recruiters could go to the main campus; most of these places, the restriction is limited to the law faculties. Suppose it was universitywide policy that we do not give equal access to military recruiters. I think your argument says it doesn't matter if it's special to the law school or the whole university. Do I understand it correctly?
04-1152 +++$+++ 14185 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. If the university had such a policy, then the university would be able to enforce it. But I hasten to add --
04-1152 +++$+++ 14186 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so for members --
04-1152 +++$+++ 14187 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the university --
04-1152 +++$+++ 14188 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- for medical schools, we can't get medical schools for our Armed Forces -- chaplains, the same way, because it -- schoolteachers who teach on military bases -- in order to make the point.
04-1152 +++$+++ 14189 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, at this point, and for some --
04-1152 +++$+++ 14190 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that's --
04-1152 +++$+++ 14191 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- several --
04-1152 +++$+++ 14192 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that's all for an expressive reason.
04-1152 +++$+++ 14193 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, for several decades, law schools have had these policies and applied them to career-services offices. No other schools within the --
04-1152 +++$+++ 14194 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that isn't --
04-1152 +++$+++ 14195 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ But --
04-1152 +++$+++ 14196 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- universities.
04-1152 +++$+++ 14197 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that isn't relevant.
04-1152 +++$+++ 14198 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ But the Government takes the position that the law school is entirely free to convey its message to everyone who comes.
04-1152 +++$+++ 14199 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice O'Connor, and -- -
04-1152 +++$+++ 14200 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ So, how is the message affected --
04-1152 +++$+++ 14201 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1152 +++$+++ 14202 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ -- in that environment?
04-1152 +++$+++ 14203 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- let me answer in two parts. First, of course, under the compelled-speech cases, the ability to protest the forced message is never a cure for compelled-speech violation, but --
04-1152 +++$+++ 14204 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But --
04-1152 +++$+++ 14205 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- what's going on --
04-1152 +++$+++ 14206 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm sorry, but, on compelled speech, nobody thinks that these -- law school is speaking through those employers who come onto its campus for recruitment. Everybody knows that those are the employers. Nobody thinks the law school believes everything that the employers are doing or saying.
04-1152 +++$+++ 14207 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor, but, again, endorsement is also not an element of compelled-speech claim. But let me -- let me bring those two questions together on a factual point. The law schools are disseminating a message that they believe it is immoral to abet discrimination. When --
04-1152 +++$+++ 14208 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ But --
04-1152 +++$+++ 14209 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- they --
04-1152 +++$+++ 14210 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ -- they can say that to every student who enters the room.
04-1152 +++$+++ 14211 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And when they do it, Your Honor, the answer of the students is, "We don't believe you. We read your message as being that there are two tiers. There's a" --
04-1152 +++$+++ 14212 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, there are --
04-1152 +++$+++ 14213 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- "double standard" --
04-1152 +++$+++ 14214 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- students --
04-1152 +++$+++ 14215 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The reason they don't believe you is because you're willing to take the money. What you're saying is, "This is a message" -- [Laughter.]
04-1152 +++$+++ 14216 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "we believe in strongly, but we don't believe in it, to the tune of $100 million."
04-1152 +++$+++ 14217 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Your Honor. And the problem with this Solomon Amendment is that the unconstitutional-conditions doctrine says that you can't put a private speaker to that crisis of conscience.
04-1152 +++$+++ 14218 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I just be sure I have one thing straight? The content of the compelled speech, as I understand it, is you're aiding in the recruitment of the Armed Forces, right?
04-1152 +++$+++ 14219 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct --
04-1152 +++$+++ 14220 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so, it --
04-1152 +++$+++ 14221 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Your Honor.
04-1152 +++$+++ 14222 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- would still have been compelled speech if, 25 years ago, Congress passed a statute saying, "University, you must allow our people on campus to recruit," and they some -- for some reason, didn't want to help. But that would have been a violation of the first amendment of the school if there were no other debate, just they didn't want the Army on because they had to provide facilities that would aid recruitment.
04-1152 +++$+++ 14223 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. If it was -- certainly, if it was against their conscience to do so --
04-1152 +++$+++ 14224 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So that it would have violated the first amendment during World War II when the -- whenever they are trying to raise an army, if they had compelled an unwilling university to provide recruitment facilities to the military.
04-1152 +++$+++ 14225 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, yes, Your Honor, unless there is a compelling need. And the difficulty with the Solomon Amendment --
04-1152 +++$+++ 14226 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that be compelled speech, though, in your view. That's the kind of speech we're talking about, anything that helps the military raise an army.
04-1152 +++$+++ 14227 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Anything that -- not anything that helps the military raise an army; any communication that a school is required to engage in.
04-1152 +++$+++ 14228 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-1152 +++$+++ 14229 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, why isn't --
04-1152 +++$+++ 14230 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't that the point? I mean, your point is not that -- as I understand, that, for any reason, if the -- if the university, for any reason, during World War II, had excluded recruiters, and there had been the equivalent of the Solomon Amendment, that there would have been a first-amendment problem. As I -- is -- maybe I don't understand your argument, but I thought your argument was, or is, that if they do it for some purpose of conscience, which implies a message -- e.g., if it is a pacifist college -- there would be a first-amendment problem. But if they're doing it simply because space is short and they would rather provide one more biology classroom, there wouldn't be a first-amendment problem, World War II or today, would there?
04-1152 +++$+++ 14231 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is absolutely right -- correct, Justice Souter, which is why I answered your very early question with --
04-1152 +++$+++ 14232 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, you --
04-1152 +++$+++ 14233 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- an answer that is --
04-1152 +++$+++ 14234 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- are saying that --
04-1152 +++$+++ 14235 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- by conscience --
04-1152 +++$+++ 14236 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that every time somebody gives as his reason for violating a law that he wants to send a message that he disagrees with that law --
04-1152 +++$+++ 14237 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor.
04-1152 +++$+++ 14238 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that raises a first-amendment question.
04-1152 +++$+++ 14239 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. Every time --
04-1152 +++$+++ 14240 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
04-1152 +++$+++ 14241 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- someone says that as a reason for refusing to host a message of an unwelcome messenger, that's a compelled-speech violation.
04-1152 +++$+++ 14242 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, in fact, to be clear, you also think schools that are angry at the military because they're too favorable to gays in the military, they have the same right.
04-1152 +++$+++ 14243 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Your --
04-1152 +++$+++ 14244 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-1152 +++$+++ 14245 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Honor, because --
04-1152 +++$+++ 14246 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And also the same right Bob Jones University, because they disapprove of social mixing of the races?
04-1152 +++$+++ 14247 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If -- to answer the first hypothetical first, if that's a matter of conscience, absolutely --
04-1152 +++$+++ 14248 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right, so --
04-1152 +++$+++ 14249 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- if we're talking --
04-1152 +++$+++ 14250 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- so, what -- and there are a lot of people in the country, they may -- there's few, anyway -- may not believe in either affirmative action, they may not believe in -- they may not believe in diversity, they may not -- they may even believe in racial segregation, for all I know. I hope there are not too many --
04-1152 +++$+++ 14251 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
04-1152 +++$+++ 14252 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- but there might, and those people all have the same right.
04-1152 +++$+++ 14253 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they have the same first-amendment right.
04-1152 +++$+++ 14254 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, okay. So, if that --
04-1152 +++$+++ 14255 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-1152 +++$+++ 14256 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- if that's the case, then of course it's going to be pretty tough --
04-1152 +++$+++ 14257 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Your Honor, the --
04-1152 +++$+++ 14258 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- for the military to get people on campus. And I just wonder, if that's an important need, why you don't have here what I'd say is normal in the first-amendment area, that the remedy for speech you don't like, is not less speech, it is more speech.
04-1152 +++$+++ 14259 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the problem with the Solomon Amendment is that the Government is demanding absolute parity. We have a statute before us that demands exactly the same services, without regard to whether the military actually needs them. In order for Congress to justify the parity requirement, which is the only statute before this Court, Congress has to state a need. It has to say why it needs what --
04-1152 +++$+++ 14260 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Here's a need. How about this? We have said in our opinions -- and I am quoting from Rostker versus Goldberg -- "Judicial deference is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged." And that's precisely what we have here.
04-1152 +++$+++ 14261 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, this Court defers to Congress, in matters of the military, when the military or the Congress is especially expert and this Court is especially naive. This Court has never deferred to a congressional statute about military when --
04-1152 +++$+++ 14262 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't think it has to do with expertise. I think it has to do with immense national importance.
04-1152 +++$+++ 14263 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, it has to do with expertise, as well. That's precisely what this Court --
04-1152 +++$+++ 14264 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I would --
04-1152 +++$+++ 14265 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- said in Rostker.
04-1152 +++$+++ 14266 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I would like the answer to my question, because I'm thinking, as you correctly say, if you have that right, so do all the worse segregationists you can imagine, et cetera.
04-1152 +++$+++ 14267 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And the --
04-1152 +++$+++ 14268 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And here -- yes, and here there is a need of some kind to get the military in. And what the Government in this statute asks you -- because I, personally, couldn't find anything in the record that finds that student who thinks, by letting the military person in, that that school, which basically is completely against the military in this area, suddenly becomes for it. And I haven't even found in the record an instance where there was a recruiter who told people that they couldn't join the military if they were gay.
04-1152 +++$+++ 14269 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1152 +++$+++ 14270 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, we have not a tremendous demonstration there of a need on the university side. And my question was, What's wrong with the Government saying, "University, you disapprove of what we do. The remedy for such a situation is not less speech, it is more speech."
04-1152 +++$+++ 14271 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the --
04-1152 +++$+++ 14272 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Go and explain it.
04-1152 +++$+++ 14273 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the direct answer to that last question is that all bets are off when what the Government is doing is compelling the speech of a private actor, because the Government is not allowed --
04-1152 +++$+++ 14274 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does it compel the speech of a private actor when the Government says, "Colleges and Universities, you are not going to get Federal money if you discriminate on grounds of race or gender. And we don't care what your private attitude may be, we will refuse to contract, we will debar you from future contracts, if you don't -- not only say, 'We won't discriminate,' but have an affirmative action plan." You know that is not hypothetical. This was the U.S. policy in the early '70s.
04-1152 +++$+++ 14275 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. I understand the hypothetical, at least -- especially as to the first half, which links to Justice Breyer's earlier question. There is an enormous difference, under this Court's jurisprudence, between antidiscrimination laws and the sort of law we have here, the Solomon Amendment. And the difference is, the Government -- it is both on the need side and on the infringement side. On the need side, the Government has a compelling interest that is different from just regulating the conduct. The compelling interest that the Government has is a completely separate interest in seeing to it that not a penny of Federal money ever goes to support an institution that taxpayers would not be in a position to go to. That's Bob Jones and Norwood. And, on the infringement side, this Court has said, that the act of discriminating against individuals is entitled to no first-amendment protection, regardless of whether there's a first-amendment right at stake. And I should add, also, that the vast majority of schools that are subject to Title VI or to Title IX have no such expression that is at stake. They are not articulating a message, "We really need to discriminate on the basis of race or on the basis of gender."
04-1152 +++$+++ 14276 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Rosenkranz, could you tell me which elements of your argument rest upon compelled actual speech and which rest upon compelled symbolic speech? Because the latter, I have to tell you, I'm not very fond of. What compelled actual speech is imposed on the -- you mentioned something about e-mails, they have to send e-mails to say where the recruiter will be located --
04-1152 +++$+++ 14277 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1152 +++$+++ 14278 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- is that the compelled speech you're worried about?
04-1152 +++$+++ 14279 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is -- Your Honor, it is the forced hosting of a messenger-based decision --
04-1152 +++$+++ 14280 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's symbolic speech. I'm talking about actual speech. What expression is the university -- real, you know, words -- - words -- is the --
04-1152 +++$+++ 14281 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but --
04-1152 +++$+++ 14282 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- university --
04-1152 +++$+++ 14283 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- with the --
04-1152 +++$+++ 14284 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- compelled to utter by this legislation?
04-1152 +++$+++ 14285 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under the parity requirement, what the university is compelled to do is sit down with the employers and help counsel them on what their students are interested in and how best to shape the message. The Third Circuit went out of its way to point out that, and the National Association for Law Placement brief is very compelling on that. They also have to disseminate literature, post bulletins on bulletin boards, help the recruiter -- or, excuse me, the law firm develop cocktail parties --
04-1152 +++$+++ 14286 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I suppose when you -- when the police knock at the door and say, you know, "I have a warrant," I suppose somebody has to say, "Come in." Is that compelled speech? Does that --
04-1152 +++$+++ 14287 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, there are --
04-1152 +++$+++ 14288 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does that -- does that raise a first-amendment problem?
04-1152 +++$+++ 14289 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does not. And there are many circumstances in which words are used that are incidental to an action. These are not words used that are incidental to the action.
04-1152 +++$+++ 14290 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's happening here is the perspective employers, the recruiters, are proposing a commercial transaction. And it seems to me quite a simple matter for the law schools to have a disclaimer on all of their e-mails and advertisements that say, "The law school does not approve -- and, in fact, disapproves -- of the policies of some of the employers who you will meet."
04-1152 +++$+++ 14291 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
04-1152 +++$+++ 14292 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's the end of it.
04-1152 +++$+++ 14293 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- no matter what the Government does, it cannot convert the career-services enterprise into a value-neutral proposition. For the law school, from its perspective, it's especially value-driven. Yes, the --
04-1152 +++$+++ 14294 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do law schools have an interest in the Constitution that other people don't?
04-1152 +++$+++ 14295 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I'm not claiming any exceptionalism for the law schools. The AAUP brief does --
04-1152 +++$+++ 14296 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Well, I --
04-1152 +++$+++ 14297 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- a brilliant job --
04-1152 +++$+++ 14298 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I suppose, under your view, law schools really shouldn't permit firms -- law firms on campus if those firms, say, oppose -- take litigation positions opposing gay marriage.
04-1152 +++$+++ 14299 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, as Dale points out, it's up to the private institution to decide what its metrics --
04-1152 +++$+++ 14300 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's --
04-1152 +++$+++ 14301 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- are going to be.
04-1152 +++$+++ 14302 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's your position. Your position is, the schools could, and probably should, do that to make their message known.
04-1152 +++$+++ 14303 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My position, Your Honor, is that the schools are entitled to make their own judgments about what messages they will disseminate. And even --
04-1152 +++$+++ 14304 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Dale is -- Dale --
04-1152 +++$+++ 14305 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even with reference to commercial -- proposed commercial transactions?
04-1152 +++$+++ 14306 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. But, I would hasten to add, that is not what recruiters are doing. It is no more commercial than what United Foods was doing in an -- advertising, saying -- or resisting the message, "Mushrooms are good."
04-1152 +++$+++ 14307 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you agree with the Government, that the statute, as fairly interpreted, is violated when a school which uniformly applies to all employers the rule, "You can't come in if you have the discrimination against hiring gay people"?
04-1152 +++$+++ 14308 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-1152 +++$+++ 14309 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You agree that it is violated.
04-1152 +++$+++ 14310 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. The statute focuses on the manner of providing access; and the manner of providing access is through the career-services --
04-1152 +++$+++ 14311 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would you require any accommodation -- I mean, you have said, "It's up to the faculty to choose which causes to assist" -- I think you put it that way, or one of the amici did -- "and which to resist." And you've already told me that this happens to be the law school, could be the whole university. Could the law faculty, or the university, take the position, "We're not going to -- we don't like your message, and we are not going to let you have any of our facilities. We're not going give you the room on the main campus. Just a total bar"?
04-1152 +++$+++ 14312 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we're certainly not advancing that position here. The Solomon Amendment requires no such thing. The Solomon Amendment does not require that schools give entry to military personnel.
04-1152 +++$+++ 14313 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but a school --
04-1152 +++$+++ 14314 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It says you must do it only if the other guy does it.
04-1152 +++$+++ 14315 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- a school, as a matter of its own policy says, "We don't like discrimination, and we're not going to give discriminators access to any of our facilities, period."
04-1152 +++$+++ 14316 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, are -- you're asking me what I would be arguing for my clients if they were actually making --
04-1152 +++$+++ 14317 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm asking --
04-1152 +++$+++ 14318 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- taking that position?
04-1152 +++$+++ 14319 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you, Is there any obligation, since you've said there is a compelling State interest -- compelling Government interest in recruiting, is there some obligation to accommodate, or could the faculty just say, "We choose the causes that we assist and the ones we resist"?
04-1152 +++$+++ 14320 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that is as to entry to campus, Your Honor? You're --
04-1152 +++$+++ 14321 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-1152 +++$+++ 14322 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- asking if -- we are not pressing this point to the Court. If the Court is asking what my opinion would be if I --
04-1152 +++$+++ 14323 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm asking --
04-1152 +++$+++ 14324 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- were a judge --
04-1152 +++$+++ 14325 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- is the -- if it logically follows, from your position, about "choosing the causes we resist and the ones that we assist."
04-1152 +++$+++ 14326 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if I were advancing that argument, it would be, this is a viewpoint-discriminatory statute which is subject to strict scrutiny. The Government is advancing a single message, and, even when the first-amendment rights that are at stake are minimal under this Court's opinion in R.A.V., strict scrutiny would apply. The Government has never come forward which a shred of evidence that it actually needs to be on campus, as opposed to directly off campus, or as opposed to publishing notices in student publications, or advertizing. But -- -
04-1152 +++$+++ 14327 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When you --
04-1152 +++$+++ 14328 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- we are not advancing --
04-1152 +++$+++ 14329 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- were talking about --
04-1152 +++$+++ 14330 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that argument.
04-1152 +++$+++ 14331 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the government's message, the message is, "Join the Army." Is that right?
04-1152 +++$+++ 14332 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. The message is, "Join the Army." What the schools hear is --
04-1152 +++$+++ 14333 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that's a viewpoint-discriminatory message.
04-1152 +++$+++ 14334 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I'm sorry. The viewpoint discrimination, Your Honor, is in the congressional statute that says, "We will force you to host a single speaker with a single message," just as in Pacific Gas --
04-1152 +++$+++ 14335 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The single message is, "Join the Army."
04-1152 +++$+++ 14336 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Justice Stevens, I didn't --
04-1152 +++$+++ 14337 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The single message is, "Join the Army."
04-1152 +++$+++ 14338 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The single message is, "Join the Army," that is correct. And the Government is promoting only that one message. But this --
04-1152 +++$+++ 14339 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought your argument was, the single message is, "Join the Army, but not if you're gay."
04-1152 +++$+++ 14340 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor --
04-1152 +++$+++ 14341 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And --
04-1152 +++$+++ 14342 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that is --
04-1152 +++$+++ 14343 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- which leads me to the question, in response to your answer to Justice Ginsburg a moment ago, in your view is the compelling interest on the part of the Government recruitment or the refusal to accept gays?
04-1152 +++$+++ 14344 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The compelling interest on the Government's side is the recruitment interest. We're not arguing that the Government has a compelling interest in excluding anyone. That's precisely why --
04-1152 +++$+++ 14345 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but, are you --
04-1152 +++$+++ 14346 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the law --
04-1152 +++$+++ 14347 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- are you saying that the Government -- that the only compelling-interest argument that the Government can raise here is the discriminatory argument? Since nobody denies that, if the Government were recruiting without the discrimination, that there would -- there would -- there would be no problem with it. Everyone would agree with -- that that was a compelling --
04-1152 +++$+++ 14348 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1152 +++$+++ 14349 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- interest. But, I thought your argument on compelling interest was that the only compelling interest that the Government can assert is the discriminatory interest.
04-1152 +++$+++ 14350 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, what I'm saying is, if the Government wants to assert a need, it has to identify the need. It has to say, "We need more than contact information. We need more than a room -- entry to campus -- a room on campus, a posting on a bulletin board. We need everything." The story of the Solomon Amendment, Your Honor, is the story of private institutions trying desperately to accommodate the Government's need, even in light of their own moral scruples.
04-1152 +++$+++ 14351 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the speech is on their side. The Government just says, "Let our recruiters in." So, why isn't it sort of like, "Pay the property tax"? "I don't want to. I hate the government."
04-1152 +++$+++ 14352 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor --
04-1152 +++$+++ 14353 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "I'm withholding the money because I want to express my message."
04-1152 +++$+++ 14354 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The speech is on both sides, because the schools are being forced to host the Government's message. The --
04-1152 +++$+++ 14355 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The message is, "Join the Army." The --
04-1152 +++$+++ 14356 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The message --
04-1152 +++$+++ 14357 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- message of the property tax is, "Pay the -- pay for the" --
04-1152 +++$+++ 14358 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The message --
04-1152 +++$+++ 14359 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "Government's expenses."
04-1152 +++$+++ 14360 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The message that the schools are hearing is, "Join the Army, but not if you're gay." And the schools have been trying desperately to accommodate the Government, up until the point where Congress says, "We don't actually want any of those things. We want them only if you supply them to someone else. We want them only if you have viewpoint-based reason that you don't want to give it to us." There's some reason in the law school's conscience, or the academic institution's conscience, that it wants to treat this category of employers differently from any other. Congress's --
04-1152 +++$+++ 14361 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you -- and you're perfectly free to do that if you don't take the money.
04-1152 +++$+++ 14362 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, Congress, here, is imposing a sanction, which this Court has treated as exactly the same as a penalty. When --
04-1152 +++$+++ 14363 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose that a law-school faculty could decide that it does not favor a particular war, and use that as the basis for excluding recruiters, "By allowing this recruiter to come on campus, you are making me speak, in effect, to our students, saying, 'Join the Army and fight the war that we're now engaged in.'"
04-1152 +++$+++ 14364 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, again, we're not --
04-1152 +++$+++ 14365 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ "And I don't want to do that." Now --
04-1152 +++$+++ 14366 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We are not talking about --
04-1152 +++$+++ 14367 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- what would be the difference?
04-1152 +++$+++ 14368 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- coming on campus. We are talking about affirmative assistance to the highest degree --
04-1152 +++$+++ 14369 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, okay --
04-1152 +++$+++ 14370 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in disseminating the --
04-1152 +++$+++ 14371 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- fine. I'm saying the same thing.
04-1152 +++$+++ 14372 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The answer is yes, Your --
04-1152 +++$+++ 14373 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I'm saying --
04-1152 +++$+++ 14374 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Honor.
04-1152 +++$+++ 14375 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you would say that the same situation would apply if the university faculty does not favor the particular war that the United States is --
04-1152 +++$+++ 14376 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-1152 +++$+++ 14377 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- engaged in, and, therefore, obstructs the effort to raise --
04-1152 +++$+++ 14378 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
04-1152 +++$+++ 14379 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- an army --
04-1152 +++$+++ 14380 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- it's very --
04-1152 +++$+++ 14381 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- by not allowing them to come on campus.
04-1152 +++$+++ 14382 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is very important to distinguish obstruction from refusal to subsidize, which, at the Government's instance, this Court has been doing for 30 years, both --
04-1152 +++$+++ 14383 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's obstruction when you refuse to give them what you give what you give everybody else.
04-1152 +++$+++ 14384 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is refusal to treat them the same as everyone else, because they are not the same as everyone else in the law schools' estimation. And the Government --
04-1152 +++$+++ 14385 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- fighting a war.
04-1152 +++$+++ 14386 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the Government has to identify precisely what its need is, why it needs Yale college personnel rather than Yale -- excuse me -- why it needs Yale law-school personnel rather than Yale college personnel --
04-1152 +++$+++ 14387 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you --
04-1152 +++$+++ 14388 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to make the appointments.
04-1152 +++$+++ 14389 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- this question, with that very point in mind? Does it necessarily follow, if there are occasional applications of this statute that might be invalid, that the whole Solomon Amendment needs to be struck down?
04-1152 +++$+++ 14390 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the -- this is not about application of the statute in one circumstance. The whole statute has to be struck down, because the Government is demanding absolute parity and there's no way for this Court to rewrite the statute. We don't know whether Congress would go back and go to the entry requirement, just bear entry, to entry-plus, or to a parity requirement, which is -- which it has now shifted to. So, there is simply no way to know exactly how Congress would rewrite the statute. But this is, at its heart, an as-applied challenge. It's about law schools with nondiscrimination policies.
04-1152 +++$+++ 14391 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you --
04-1152 +++$+++ 14392 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you --
04-1152 +++$+++ 14393 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- Counsel.
04-1152 +++$+++ 14394 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Your Honors.
04-1152 +++$+++ 14395 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ General Clement, you have 4 minutes remaining.
04-1152 +++$+++ 14397 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. I'd like to make just a few points in rebuttal. First of all, in starting with the compelled-speech problem, there are only two kinds of speech that are at issue here. First, there is the compelled speech of the military recruiters. And no one thinks that that speech is being misattributed to the schools. Even in the secondary-school context, in Mergens, this Court understood that secondary students could distinguish between the school's message and that of school groups. Now, the second piece of speech that's at issue is that of the university, when they incidentally send an e-mail around telling the students where the military recruiters are going to be on a certain day. And certainly in the context of recruiting, that kind of incidental speech does not implicate any compelled-speech doctrine. In the Title VII context, for example, if an employer says that there's a job opening, and says that to a white applicant, it has to say the same thing to an African-American applicant. Nobody would think that that other -- saying that to the African-American applicant, which is, of course, compelled speech by Title VII, violates the Constitution. I would also say, just as the last point on compelled speech, that it's something of a stranger in a strange land in the context of this case, since we are talking about a funding condition, not a compulsion. Second, let me move to the argument that the Respondents have about trying to distinguish this case from Justice Stevens' World War II hypothetical. And, as I understand it, it boils down to the argument that the way that the legislature was reacting here to this problem and observing what it observed on campus somehow implicates different constitutional issues, different first-amendment issues. And I think the O'Brien case stands as an obstacle to that argument. In that case, if you look at it, the argument was exactly the same. There already was a prohibition that required you to have your draft card with you. Congress then passed a second statute that prohibited burning your draft card. Now, what did the Representatives say about that? Well, Representative Bray, of Indiana, said that this was an effort to get at "communist stooges and beatniks." Now, this Court did not strike the statute down on that basis. It looked at the text of the statute and upheld the statute as a reasonable statute. Let me also, then, move to what you could call the "Bob Jones problem." And I think you have to have be cautious about interpreting this statute in applying a rule and having it come back in the context of other statutes that even the law schools like, like Title VI and Title IX. I don't think it's enough to simply say that race is going to be different. For one thing, Federal statutes also prohibit, as a condition on funding, universitywide discrimination on the basis of disability and on the basis of age. Now, those aren't things that trigger heightened scrutiny, and I think one has to be worried about converting this rule in this case to something that's going to threaten those statutes. This Court, in Hishon, for example, made the point that all discrimination can be recharacterized as somebody simply saying -- exercising their associational rights, "I don't want to associate with you, because you're female," in Hishon. You have to be leery of that kind of recharacterization. The last point I would make is that there's simply no limit on Respondent's argument in this case. I don't think their matter of conscious limitation is going to be enforceable by the courts. And, beyond that, I think, even in this case, there is more at issue here than just the military's policy on homosexuals. If you look at the original statement of the American Association of Law Schools -- which is in the joint appendix at 246 and 249 -- they were concerned, first and foremost, about the military's policies on homosexuals, but also about the discrimination in sex, on what kind of combat roles that women could have, what they call career-advancing positions. So, even if Congress changed "don't ask, don't tell" tomorrow, the -- presumably, the law schools would still be here protesting the military's position on gender, or perhaps the war in Iraq, or perhaps the war in Afghanistan. And the last point in showing there is no limits on their position is, as Justice Kennedy pointed out, any conduct can be imbued with communicative force just by saying, "We're opposed to this, and, therefore, we're going to engage in this conduct." That's simply not enough to generate a significant first-amendment interest. Thank you.
04-1152 +++$+++ 14398 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General. The case is submitted.
04-1170 +++$+++ 14403 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Kansas v. Marsh. General Kline.
04-1170 +++$+++ 14405 +++$+++ FALSE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: This Court has never held that a specific structure for weighing aggravating and mitigating factors is required by the eighth amendment. Yet, this Court has consistently held that all that is required by the eighth amendment is for States to afford an opportunity to jurors to consider all mitigating evidence relevant to determination of a sentence other than death. The Kansas statute, it is undisputed in this case, allowed the respondent to introduce all such evidence and that the jurors, under Kansas law, are specifically instructed to consider all such mitigating evidence on an individualized basis.
04-1170 +++$+++ 14406 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ General, may -- may I -- I'd like to pose a question which at least gets to the nub of the issue, as I see it, and -- and get your response to it. The premise of my question is this. We -- we generally regard mitigation evidence as favoring life, aggravation evidence as favoring death. We've got a case in which the -- the assumption is that they are evenly balanced. The -- the pans of the scale are exactly even on that. Kansas says in that case the jury shall return the verdict of death. If we are going to demand, as we have said that we're going to demand, that the determination -- that the death penalty determination be one of what we have called reasoned moral judgment, then what has to be supplied in order to make the Kansas provision consistent with reasoned moral justice, it seems to me, is a presumption in favor of death. Other things being equal, there is a presumption in favor of death. And my question is, am I correct in saying that in order to hold your way, we have to hold that the eighth amendment -- is consistent with the eighth amendment to presume the appropriateness of death, other things being equal?
04-1170 +++$+++ 14407 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As the Court -- yes. As the Court has done in Walton, the standard in the --
04-1170 +++$+++ 14408 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You -- you agree that's -- that's a proper way to look at the issue then.
04-1170 +++$+++ 14409 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, to take the issue in its total context and refer to the instructions and the totality of what the jury is instructed, I would disagree that there is a presumption of death --
04-1170 +++$+++ 14410 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then how do you get off the dime?
04-1170 +++$+++ 14411 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The jury is given in the instruction, instruction number 4 and instruction number 5, a direction as to the effect of their reasoned moral judgment.
04-1170 +++$+++ 14412 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but the -- the direction, as I understand it, is that if mitigation and aggravation are even, then the only way to come to a conclusion is to say, as the statute does, because the mitigation does not outweigh the aggravation, you should return a verdict of death. And that seems to me another way of saying there is a presumption that if aggravation and mitigation are equal, that the penalty should be death.
04-1170 +++$+++ 14413 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Instruction number 5 does instruct the juror, Justice Souter, that if the State meets the burden of proving beyond a reasonable doubt that the mitigating factors do not outweigh the aggravating factors, then the jury shall sentence the defendant to death.
04-1170 +++$+++ 14414 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The State has made a judgment that this particular offense -- what's it called? Aggravated murder, you know, whatever --
04-1170 +++$+++ 14415 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ First, they have to be convicted, Justice Scalia, of capital murder.
04-1170 +++$+++ 14416 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Capital murder, as its name implies, warrants a judgment of death unless there are mitigating factors that -- which indicate that that is not proper.
04-1170 +++$+++ 14417 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Justice Scalia.
04-1170 +++$+++ 14418 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's a moral judgment, isn't it?
04-1170 +++$+++ 14419 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That certainly is, and --
04-1170 +++$+++ 14420 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And even if the State had said the opposite, it -- it is a -- still a State-prescribed moral judgment. If the State had said capital murder warrants a judgment of death only if the mitigating factors outweigh the aggravating factors, that's still a State-prescribed moral judgment, isn't it?
04-1170 +++$+++ 14421 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
04-1170 +++$+++ 14422 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And can -- can you go back to Justice Souter's question for a minute? Because the way I'm thinking about this, I'm making two assumptions that I'd like you to make: first, that there could be such a case, which I very much doubt, but -- but this is a lawyer's hypothetical, this whole thing, in a sense. But I'll make the assumption there could be such a case. Second, I will assume that our case law leaves this open, a matter that can be argued. But suppose that we do make that assumption for the moment. Then what I'm thinking of is this made-up case is the case of the following. We have aggravating factors and break them down into molecules on a scale, and for every molecule of aggravation here, there is a molecule of mitigation there, so that the juror who is very conscientious ends up with the same number of molecules of equal weight on this scale. And in our made-up instance, Kansas says, if that's the situation, you must say death. Now, if that's the case, how would you reconcile that with a view of the eighth amendment that says if you're going to sentence someone to death, there has to be something special about his case that means it's somewhat worse than the ordinary case because, after all, for every molecule of specialness that warranted death, we have a molecule of mitigation that doesn't? So that's where I am, trying to get the cases out of it and trying to take very seriously the hypothetical that is before us.
04-1170 +++$+++ 14423 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There -- thank you, Justice Breyer. There are several considerations and steps that must be approached and proven by the State before we get to that actual equation. First of all, the State follows the guided discretion standard of this Court, as laid out in Furman and its progeny, to a very narrow definition of what capital murder is. In fact, the Kansas death penalty statute is one of the most narrow in the Nation. And then past that point to the sentencing jury, the State must prove beyond a reasonable doubt at least one of eight specific aggravating factors exist with jury unanimity. And then past that point, Kansas has complied with this Court's requirement under the eighth amendment for a juror to consider and give effect to all mitigating evidence relevant to a sentence other than death and that instruction is specifically pointed out in your appendix, pages 23 through 28. Furthermore, the jurors are --
04-1170 +++$+++ 14424 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The Furman -- the -- it's hard to tell where the voice is coming from, I know. We ought to get that fixed. (Laughter.)
04-1170 +++$+++ 14425 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The Furman narrowing is produced by the very first part of subsection (e). If, by a unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in -- in section 24-4625 and amendments thereto exist -- that's the Furman.
04-1170 +++$+++ 14426 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, and --
04-1170 +++$+++ 14427 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And then beyond that you say if that is found, then the jury has to find that the existence of such aggravating does not outweigh.
04-1170 +++$+++ 14428 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. And that -- that is how it complies with your hypothetical, Justice Breyer.
04-1170 +++$+++ 14429 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you see, my hypothetical is designed to cut free of the language of the cases. I have no doubt you can go through the language and show that. And it's designed to say, but the very point of those cases is you do not send someone to death unless the jury decides that the circumstances here make him somewhat worse, at least one molecule worth of worse, than the typical person. And given the evenness of the balance, I don't see how we can say that, though I grant you, when you go back to those words in the cases, you're right.
04-1170 +++$+++ 14430 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the guided discretion of this Court has indicated that the State must be able to -- and a juror -- differentiate between a defendant who is convicted of the same crime as to the -- and sentenced to life as the defendant who is sentenced to the same crime and sentenced to death. And that is laid out, as Justice Scalia pointed out, in the definition of capital murder and the requirement of aggravated factors.
04-1170 +++$+++ 14431 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course, the -- the instructions don't tell the jury to weigh the molecules. They tell the jury that the State has to prove beyond a reasonable doubt that the mitigating molecules do not outweigh the aggravating molecules.
04-1170 +++$+++ 14432 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
04-1170 +++$+++ 14433 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And how likely is it, if you have a jury who thinks the -- a juror, who thinks the molecules are precisely balanced, is going to conclude that the State has carried its burden of proving beyond a reasonable doubt that the 50 here don't outweigh the 50 here?
04-1170 +++$+++ 14434 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice --
04-1170 +++$+++ 14435 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's a theoretical proposition --
04-1170 +++$+++ 14436 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, we are dealing with a hypothetical that we believe does not exist in jury deliberations. A juror steps back and decides whether they can live with the decision that is before them and then decides whether the death penalty is warranted. And in fact, Kansas law leads them to that reasoned moral decision. In Kansas law, in instruction number 4, which again is laid out in your appendix, instructs the juror that mercy, in and of itself, is sufficient to determine a sentence other than death.
04-1170 +++$+++ 14437 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, let me ask -- ask you this. As a -- rather than presumptions, can we look at this case as a matter of shifting burdens of proof? I -- I take it the Constitution does not require the State to introduce mitigating evidence. That's -- that's the responsibility of the accused.
04-1170 +++$+++ 14438 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
04-1170 +++$+++ 14439 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And so what we're saying here is that when a State shows that the mitigators do not outweigh the aggravators, then it's the defendant's/accused's burden to go forward and show that they do.
04-1170 +++$+++ 14440 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Except -- you're correct, Justice Kennedy, except that the burden on the State is beyond a reasonable doubt to demonstrate that, the highest burden allowed by law. And beyond that burden that was in the Arizona statute, which was functionally identical to the Kansas law, that was presented in this -- to this Court in Walton v. Arizona, and this Court rejected that very argument in that case. As you may recall, the Arizona law was that there was a responsibility for the defendant to demonstrate that mitigating factors were sufficiently substantial to call for leniency. The Arizona Supreme Court had decided that that meant that the mitigating factors must outweigh the aggravating factors. And this Court accepted that case because of a conflict between the ninth circuit which held, as the Kansas Supreme Court did, in Adamson v. Ricketts, that that was an unconstitutional violation of the eighth amendment. This Court resolved that conflict, and in fact, States relied on that resolution, as did the Kansas legislature, in articulating the very standard except Kansas goes further and keeps the burden on the State.
04-1170 +++$+++ 14441 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Yes. In Arizona, the burden was placed on the defendant, was it not --
04-1170 +++$+++ 14442 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Justice O'Connor.
04-1170 +++$+++ 14443 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ -- to -- to prove the mitigation? And yet, the Court upheld that even in the equipoise situation.
04-1170 +++$+++ 14444 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Justice O'Connor.
04-1170 +++$+++ 14445 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Over a dissent.
04-1170 +++$+++ 14446 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct. Justice Blackmun's dissent.
04-1170 +++$+++ 14447 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ So Kansas does not put the burden on the defendant.
04-1170 +++$+++ 14448 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not at any stage of the proceeding. The burden remains on the State to prove beyond a reasonable doubt.
04-1170 +++$+++ 14449 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but -- but I take it the State has no duty to adduce mitigating factors.
04-1170 +++$+++ 14450 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is incumbent upon the defendant, Justice Kennedy, to bring forth factors in mitigation. The standard, though, in introduction is relevancy, and Kansas has met the -- the requirements of this Court, as it relates to the specific sentencing or individualized sentencing structure, by allowing the jury to consider all evidence relevant to the determination of a sentence other than death.
04-1170 +++$+++ 14451 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Of course, that means they comply with Lockett. I want to ask you one question that goes back to your colloquy with Justice Souter and Justice Scalia. Justice Scalia pointed out that the State has made a moral judgment on a certain state of facts, the death penalty shall be imposed and which you agreed with. And that was true in the cases back in 1975 and 6. There were some State statutes that mandated death based on the moral judgment of the State in certain circumstances. I think one was a North Carolina statute. Do you ask us to reexamine those cases?
04-1170 +++$+++ 14452 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Stevens. Actually the State's position is consistent with the previous decisions of this Court in this fashion.
04-1170 +++$+++ 14453 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It -- it does not rely on the proposition that there's a situation in which there's a mandated death penalty which is perfectly okay.
04-1170 +++$+++ 14454 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, because there is a requirement upon the State in the sentencing phase to prove factors in aggravation with jury unanimity beyond a reasonable doubt that set aside this particular act in a different framework than those who commit capital murder and are convicted of capital murder. If the State does not meet that burden --
04-1170 +++$+++ 14455 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but of course, the aggravators -- it would be permissible for a State to include the aggravators necessary to narrow the category in the definition of the crime itself.
04-1170 +++$+++ 14456 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court has held that it does. And Kansas has a very narrow death penalty in the definition of capital murder and also the specified aggravators that the State must prove.
04-1170 +++$+++ 14457 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you would say that if the State met that burden and there was no mitigating or no substantial mitigating evidence, it would be permissible to -- for the State to mandate the death penalty.
04-1170 +++$+++ 14458 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Just as it is in Walton v. Arizona.
04-1170 +++$+++ 14459 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The answer is yes.
04-1170 +++$+++ 14460 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The answer is yes, Justice Stevens.
04-1170 +++$+++ 14461 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you think that's fully consistent with the North Carolina case.
04-1170 +++$+++ 14462 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is not fully consistent, I don't believe. It is consistent with the Walton case in that this Court said a mandatory death penalty is not unconstitutional, as long as the State differentiates between those convicted of the same crime and who are sentenced to life and those who are convicted of the same crime and sentenced to death. Kansas clearly does that in the requirement that the State prove beyond a reasonable doubt that one of at least eight specific statutory aggravating factors exist in the case. But Kansas goes further. Unlike in Walton v. Arizona, the burden remains on the State to also prove that the mitigating evidence proffered by the defendant who has the lowest threshold allowed by law, and all that is required by this Court -- that is relevancy -- that all of that evidence does not outweigh --
04-1170 +++$+++ 14463 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it -- that's the way Justice Blackmun interpreted the majority, but the majority didn't quite say that because it said the burden on the defendant was to prove sufficient mitigation to justify something other than the death penalty. And conceivably one could have met that burden with substantial mitigating evidence that came out even.
04-1170 +++$+++ 14464 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the --
04-1170 +++$+++ 14465 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Under the majority's opinion -- now, you're dead right about what Justice Blackmun said, but --
04-1170 +++$+++ 14466 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, you are correct. The majority didn't specifically address that, but they also analyzed the case, much as Justice Kennedy just did, in saying that really what we're talking about is whether the State eventually at some point, once it has met the requirement of the individualized sentencing requirements of this Court, can say that death is appropriate. And the answer in this Court's jurisprudence has been clearly yes once we are able to set aside this defendant from other defendants convicted of the same crime.
04-1170 +++$+++ 14467 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you would agree that it would be consistent with the -- the text of the majority opinion to say it really meant they have to prove enough mitigating evidence to make death the inappropriate sentence, which could be less than -- even a 50/50 balance?
04-1170 +++$+++ 14468 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Arguably, yes, Justice Stevens. And that is the language of the Arizona statute, but it would fly in the face of the interpretation of the Arizona Supreme Court, as well as the Ninth Circuit Court of Appeals in Adamson v. Ricketts which, subsequent to the Walton decision, held that Walton controlled and allowed the potentiality of equipoise to be constitutional. Now, one thing I would like to --
04-1170 +++$+++ 14469 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Are you going to address the other questions? I think we added a question about whether the Kansas Supreme Court's judgment was adequately supported by an independent State ground. And I'm not sure that this has been adequately addressed. Do we have jurisdiction here? The -- the Kansas Supreme Court vacated the capital murder judgment and remanded it and said it would have done it anyway because of the State law evidentiary error concerning admission of third party guilt evidence. So does that independent ground mean we don't have jurisdiction here on this thing?
04-1170 +++$+++ 14470 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice O'Connor, there is not an independent and adequate State ground for this decision. It is undisputed that the Kansas Supreme Court relies on this Court's interpretation of the eighth amendment for the interpretation of the cruel or unusual punishment clause of the Kansas constitution.
04-1170 +++$+++ 14471 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ But there was another ground.
04-1170 +++$+++ 14472 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but it is not adequate and independent. The argument of the respondent is that the constitutional savings doctrine and severability arguments are independent and adequate, and by their very nature, they are dependent rather than independent. The Kansas Supreme Court engaged in a -- and I quote from the decision -- a full reexamination of the eighth amendment jurisprudence in coming to the conclusion in paragraph 25 of the syllabus, which is the law of the case in Kansas under Kansas law, that the Kansas death penalty statute is unconstitutional on its face. That was the first such holding in Kansas jurisprudence history finding that determination. Previously, 3 years earlier, the court had found the death penalty statute constitutional as construed, and as this Court knows, you will not accept jurisdiction of a State court's interpretation or construction of a State law. So, therefore, this is the first opportunity that the State has had and I would say the last.
04-1170 +++$+++ 14473 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Well, but was this -- was this case remanded for a new trial?
04-1170 +++$+++ 14474 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is, Your Honor.
04-1170 +++$+++ 14475 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ And presumably, if there is a conviction and a sentence, you could come back here again by way of a cross appeal.
04-1170 +++$+++ 14476 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be incorrect, Justice O'Connor. Kansas is prohibited. The prosecutors are prohibited and limited of the right of appeal in Kansas law as in most States. And -- and this Court had a similar case in Neville v. South Dakota in which you construed South Dakota law as it relates to limiting the prosecution's ability to appeal and, through that construction, identified in an interlocutory basis, when the lower court passes on a constitutional measure that has import for this Court, that the inability of the State to be able to pursue that case renders jurisdiction under 28, section 1257. So --
04-1170 +++$+++ 14477 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If I -- if I understand what the situation is, there is no death penalty in Kansas as a result of this decision.
04-1170 +++$+++ 14478 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Justice Ginsburg. There is no death penalty. The highest court of our State has spoken and stricken it down as unconstitutional on its face.
04-1170 +++$+++ 14479 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Has there been any movement in the legislature to change the law so you won't be in this situation where there is no death penalty?
04-1170 +++$+++ 14480 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, there's significant discussion in the legislature, but that discussion is somewhat mixed, as you might imagine, and some were concerned that action might moot this case. Right now there are 12 pending capital murder cases in Kansas which, if this Court does not reverse the Kansas Supreme Court, the State will not be able to seek capital murder charges and the death sentence in those cases.
04-1170 +++$+++ 14481 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that wouldn't be true if you amended the statute though, would it? If you -- if they amended the statute to take the 50/50 problem out of it, which wouldn't seem to me all that difficult, you could still impose the death penalty on these other 12 people who haven't been tried.
04-1170 +++$+++ 14482 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is our position, Justice Stevens, since their crimes were committed prior to any act of the legislature, we would be prohibited from seeking the death penalty.
04-1170 +++$+++ 14483 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Because of an ameliorating amendment to the death penalty statute?
04-1170 +++$+++ 14484 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is -- that is our -- our position. It would have to take an entire --
04-1170 +++$+++ 14485 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I doubt if you'd take that position if they did it. (Laughter.)
04-1170 +++$+++ 14486 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Stevens, if you put me in that position, I will be an advocate for the State. However, it is our position, as Justice Ginsburg alluded to, that the State has no death penalty and it would take a complete reenactment of the death penalty for the State to have one. And that is borne out in case law. There is no uncertainty as it relates to the ability of the State to seek appeal in charging death once there is no death statute that is available. The references in Kansas law to KSA section 22-3602(b) are a very settled area of the law. The respondent argues that subsection (1) of that statute would allow us an opportunity to preserve this issue below. However, that only relates to the State being able to appeal charging documents, and the definitions of those documents are very specific in Kansas law. Furthermore, subsection (3) states that a prosecutor can reserve an issue, but case law is very clear, and that is only if the Kansas Supreme Court sees that issue as important for the administration of justice, the uniform administration of justice, in the State, and has interpreted that to mean only where guidance of the supreme court is necessary. It is not a method for moving for rehearing. The Kansas Supreme Court rejects that. We moved for reconsideration and reconsideration was not granted. If this Court embarks, as the respondent asks it to, it will put in jeopardy 12 capital murder cases and prevent 12 capital murder cases from being pursued in Kansas. It will effectively strike down the laws of seven other States that have functionally identical statutes as Kansas. And furthermore, it would effectively call into question the laws of five other States that do not even require any weighing mechanism whatsoever. This Court has never gone further and required a specific mechanism of weighing aggravating and mitigating circumstances and has relegated that duty, as it should, to the States as long as the juror has the opportunity to make the reasoned moral decision based on the consideration of all mitigating evidence relevant to a decision other than death that relates to the character, the background of the defendant, or the circumstances of the offense. And if you would look in your joint appendix on pages 25 and 26, you will see the instructions that the State of Kansas gave in this case, and it is undisputed that the respondent's presentation of mitigating evidence was presented to the jury in full, and additionally, the jury was specifically instructed to consider and give weight -- I'm sorry. It's pages 24 and 25 -- specifically instructed to give weight to all of that evidence. Pages 24 and 25. I am referring to instruction number 4. And you will see the delineation beginning on page 25 of all the mitigating evidence that was admitted as relevant in this case. And I would also say that Kansas continues to bear a greater burden in its consideration -- for the juror's consideration in that the juror is instructed on paragraph 2 of instruction 4 that mercy in and of itself is sufficient -- is sufficient -- to outweigh the aggravating evidence presented by the State. So contrary to the --
04-1170 +++$+++ 14487 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I have no idea what that means. I mean, you -- you go into this very elaborate system, you know, molecules on one side, molecules on the other. (Laughter.)
04-1170 +++$+++ 14488 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And then you throw the whole thing up in the air and say mercy alone is enough. I mean --
04-1170 +++$+++ 14489 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, I think it is -- it is default for a life sentence. And I believe it is certainly an acknowledgement that what really happens here is a juror steps back, after the consideration of all the evidence that this Court requires under the eighth amendment, and decides what they can live with: a sentence of death or a sentence of life. And one juror who has doubt can extend mercy. And, Mr. Chief Justice, if it may please the Court, I'd like to reserve the remainder of my time.
04-1170 +++$+++ 14490 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General. Ms. Woodman, we'll hear now from you.
04-1170 +++$+++ 14492 +++$+++ FALSE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: I'd like to devote the bulk of my time to answering the State's arguments on the merits because the constitutional issue presented by the Kansas capital sentencing statute is actually quite different than the State and its amici would have it appear. Their arguments rest on an erroneous assumption about the way the statute operates and the real issues that its operation raises. Under the Kansas formula, prosecutors can and do urge jurors not to persevere in their decision-making if they are undecided regarding the balance of aggravating and mitigating circumstances. In other words, if the decision is too hard to make, the sentence must be death. The formula --
04-1170 +++$+++ 14493 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But is it reasonable to suppose that one of those cases where it's too hard to decide is when there are 50 molecules on one side and 50 on the other? In other words, it would seem to me that that's an easy case to say that the State has not met its burden of proving beyond a reasonable doubt that the mitigating factors don't outweigh the aggravating ones when the evidence is evenly balanced.
04-1170 +++$+++ 14494 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. I think that it's not right to think of this in terms of mathematical formulas, molecules on one side or the other. This is a subjective, qualitative determination that the jury makes, and whatever capital sentencing statute a State chooses, States are free to choose whatever structure they see fit to determine whether death is an appropriate sentence. However, States are not free to enact a statute that doesn't ensure a reliable determination that death is an appropriate sentence, and that's what we're dealing with here. It's a qualitative judgment and one can imagine, very easily I think, a scenario where jurors are deliberating. They take their jobs very seriously and they cannot make a determination whether aggravators outweigh mitigators, or vice versa.
04-1170 +++$+++ 14495 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's because the defendant hasn't introduced enough evidence of mitigation and that's the duty of the defendant to come forward with it.
04-1170 +++$+++ 14496 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in -- in a situation of equipoise, by which I mean a state of indecision on whether the relative balance between aggravating and mitigating circumstances, burden of proof is not the sticking point there.
04-1170 +++$+++ 14497 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you say it's a state of indecision. The jury has decided that aggravating factors have been established.
04-1170 +++$+++ 14498 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that -- that's -- that's the problem because that's not a reliable determination. It's no determination that based upon the individual --
04-1170 +++$+++ 14499 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why isn't it a reliable determination that, number one, it's a death-qualified accused in -- in any event, and there have been specific aggravators proved? That has been determined. It's now for the defendant, in effect, to show that the mitigating circumstances outweigh this. The -- and you have the bonus that the State has to prove beyond a reasonable doubt that the mitigators have not outweighed the aggravators.
04-1170 +++$+++ 14500 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the jury is specifically instructed under this formula that they have a third option, and that is where they can't make a decision, whether aggravators outweigh mitigators, or vice versa --
04-1170 +++$+++ 14501 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They have made the decision. They have made the decision that the aggravators are there and have not been outweighed. They have made that decision.
04-1170 +++$+++ 14502 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the jury is required to impose death at that point, and it is a decision that aggravators are not outweighed by mitigators. But this Court's eighth amendment jurisprudence requires --
04-1170 +++$+++ 14503 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's because the mitigation case hasn't been made.
04-1170 +++$+++ 14504 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The eighth amendment requires jurors to make a determination, based upon individual characteristics, whether death is an appropriate sentence, whether the defendant deserves death. And when the jury is in a situation of equipoise and is required to impose death, they're imposing death without having made that determination that death is an appropriate --
04-1170 +++$+++ 14505 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, no. They're -- they're saying it is appropriate. They're saying it is appropriate. We have the people put in the box. The box is are they in a situation that is different from the average murderer. Yes. And they're making the determination that although they're in that box, that morally they're no different. Morally they're the same --
04-1170 +++$+++ 14506 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there's no --
04-1170 +++$+++ 14507 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- because for every factor that makes them morally one way, there's a factor that makes them morally the other way. So they're different, but they're not morally different. Now, that's -- that's what I think this case presents. And I -- I mean, I imagine a juror who's thinking just what I said. I don't know if there ever was such a juror, but if there was such a juror, the statute in this instant tells him what to do.
04-1170 +++$+++ 14508 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The statute does tell them what to do. It tells --
04-1170 +++$+++ 14509 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It says where you think there is an equivalent, but not a moral difference, death.
04-1170 +++$+++ 14510 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but if -- if you think -- if you look at the prosecutorial arguments, for example, that have been made in both the Kleypas and Marsh cases, those prosecutorial arguments have urged the jurors to do exactly what I described, and that is to abdicate their decision to make a -- a determination based on the -- on individual characteristics on the question of whether death is an appropriate punishment for this individual offender based on the specific circumstances of this crime, and that if they're in equipoise, they have to impose a death sentence. That is encouraging the jurors to abdicate their decision to determine whether death is an appropriate sentence or not. Then --
04-1170 +++$+++ 14511 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. -- Ms. Woodman, you know, I -- I have not, you know, gone along with -- with most of our Walton jurisprudence anyway, but -- but what I have really always thought it demanded was really nothing more precise than that a jury has to be given the opportunity to grant mercy. I -- I'm not sure I would describe any of it as any more precise than that.
04-1170 +++$+++ 14512 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1170 +++$+++ 14513 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The jury has to be given the opportunity to say this poor devil doesn't deserve the death penalty. However you want to put that, you know, you can put the burdens here, the burdens there. You can talk about equipoise or not. Does the jury have a chance to say this -- this fellow does not deserve the death penalty? That --
04-1170 +++$+++ 14514 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1170 +++$+++ 14515 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and clearly exists under this scheme, it seems to me. Any jury that -- that really thinks this person should not go to death can -- can do it. In fact, you know, I guess the statute does not demand that instruction, but that instruction that says -- what is it? The appropriateness of the exercise of mercy can itself be a mitigating factor. I mean, gee, what -- what else -- what else do you have to do?
04-1170 +++$+++ 14516 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that's one factor among many that the jury has to consider. And the problem here is that the jury could have all of the information that a defendant has proffered as a basis for a sentence less than death, and a jury could still be unable to decide whether aggravation or mitigation is the weightier in a closely balanced case. And that is the problem here.
04-1170 +++$+++ 14517 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Any jury that thought this -- this person did not deserve death would have ample opportunity to give expression to that determination under this scheme.
04-1170 +++$+++ 14518 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Only if they persevere in that decision-making, and prosecutors urge them not to by telling them that they must impose death when they cannot decide the balance between aggravating and mitigating circumstances.
04-1170 +++$+++ 14519 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Ms. Woodman, you said that they didn't make such an argument in this case and in some other case, but you did not include the argument in the joint appendix, did you?
04-1170 +++$+++ 14520 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I did -- we did not include the prosecutorial closing arguments. They are in --
04-1170 +++$+++ 14521 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are you -- are you -- the -- the argument --
04-1170 +++$+++ 14522 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They are in the brief.
04-1170 +++$+++ 14523 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There is a brief from the Kansas law professors, and this is the instruction from the Kleypas case?
04-1170 +++$+++ 14524 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1170 +++$+++ 14525 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If the aggravators are not outweighed by the mitigators, you shall impose the death penalty, not that you may, not that you can, but that you shall impose the death penalty. This is the duty you were sworn to uphold. Shows command. It means must. That's -- is that the type of instruction --
04-1170 +++$+++ 14526 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-1170 +++$+++ 14527 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- the type of argument?
04-1170 +++$+++ 14528 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, and then in Mr. Marsh's case, which is part of the record in this case -- and I've cited to the record for that argument, which is at -- I apologize. It's at volume 54 at pages 54 and 55 of the record of the Kansas Supreme Court in the Marsh case. And in that case, the prosecutorial arguments told the jury that they can't even consider mitigating evidence unless they find that mitigating circumstances outweigh aggravating circumstances because the law has told you and the judge has told you that the law says that if the aggravating circumstances are not outweighed by mitigating circumstances, you shall return a verdict of death.
04-1170 +++$+++ 14529 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And therefore, they shouldn't consider mitigating at all, he told them?
04-1170 +++$+++ 14530 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. This is not a question of not being able to consider mitigating circumstances. And as I said --
04-1170 +++$+++ 14531 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is -- is this mercy instruction always given? Is that standard? Is it -- is it, in effect, that -- that mercy is -- is always one of the mitigating circumstances?
04-1170 +++$+++ 14532 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. That's part of the jury instructions in capital cases.
04-1170 +++$+++ 14533 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Gee, I -- I really don't see what -- what complaint you have then. Any jury that -- that thinks this person deserves mercy says, I think he deserves mercy, and that's -- that's a -- a mitigating circumstance that outweighs whatever aggravating circumstances there are.
04-1170 +++$+++ 14534 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But when you think about the difficulty of the individualized sentencing decision that the jury has to make, the -- one juror might feel that way, but it's only if they persevere in that decisionmaking. This statutory equipoise provision encourages jurors not to persevere in their decisionmaking. They're -- they're sitting around in the jury room. One juror --
04-1170 +++$+++ 14535 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what is the statutory equipoise provision?
04-1170 +++$+++ 14536 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It says that if the jury finds the existence of at least one aggravating factor and determines further that any aggravating circumstances that exist are not outweighed by any mitigating circumstances found to exist, the sentence shall be death.
04-1170 +++$+++ 14537 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's my question. There is no --
04-1170 +++$+++ 14538 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If the State is --
04-1170 +++$+++ 14539 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There is no statutory equipoise provision. The State has a burden of proof to prove beyond a reasonable doubt that the mitigating factors don't outweigh the aggravating. That's what you mean by the statutory equipoise provision?
04-1170 +++$+++ 14540 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The statutory equipoise provision, as the Kansas Supreme Court found -- they construed this statute. They construed it to mean that it requires death when jurors are undecided about the balance between aggravating and mitigating circumstances. That construction of the statute is entitled to respect. And under --
04-1170 +++$+++ 14541 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Who said that? Excuse me. That -- that description of the statute.
04-1170 +++$+++ 14542 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Kansas Supreme Court in the Kleypas case in holding it unconstitutional.
04-1170 +++$+++ 14543 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but it seems to me the statute doesn't really say that, does it? But I mean, what the statute says is that if it's in perfect equipoise, the State loses because the State has the burden of proving beyond a reasonable doubt that the -- that the mitigators do not outweigh the aggravators. It seems to me if a jury sees them in perfect equipoise, the jury would have to say the State has not proven beyond a reasonable doubt that the mitigators do not outweigh the aggravators. What -- isn't that what a jury would have to say?
04-1170 +++$+++ 14544 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Under the statute, the State's burden of proof, which is beyond a reasonable doubt -- I'll grant that, but it's to prove beyond a reasonable doubt that the aggravators are not outweighed by the mitigators.
04-1170 +++$+++ 14545 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's right. Okay. And -- and if the jury cannot decide whether the aggravators are outweighed by the mitigators, if they're in perfect equipoise, who loses?
04-1170 +++$+++ 14546 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The defendant.
04-1170 +++$+++ 14547 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. The State loses. It's the State that has the burden of proving beyond a reasonable doubt that they are --
04-1170 +++$+++ 14548 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, the Kansas Supreme Court thought that --
04-1170 +++$+++ 14549 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Kansas Supreme Court construed it to mean that a tie goes to the -- to the State.
04-1170 +++$+++ 14550 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's different from saying not decided. I thought the Kansas Supreme Court didn't speak of not decided. I thought it didn't speak in Kleypas about a jury who -- a juror who can't make up its -- his mind. I thought it said the jury has made -- it assumed the juror has made up his mind. That's why I think it's artificial. It says where the jury finds. It finds equipoise as to the mitigating and aggravating circumstance, then death, that the jury has to find that.
04-1170 +++$+++ 14551 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But this is not about structuring decisionmaking. This is about terminating decisionmaking on the issue that is central to the eighth amendment requirements at the selection stage --
04-1170 +++$+++ 14552 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's terminating it because there's not enough mitigating evidence.
04-1170 +++$+++ 14553 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's true I -- I think, isn't it? And then the question is, does a State have a right not to do with burden of proof, not to do with anything else, but to have perhaps the artificial situation where the jury finds that the evidence is in equipoise whoever has the burden of proof. Put it all on you, whoever had it. That was their final conclusion. I find it is in equipoise. Next question: what happens?
04-1170 +++$+++ 14554 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the statute hasn't assigned a burden of proof, but still that's not the problem here.
04-1170 +++$+++ 14555 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Oh, I agree with you. That's not the problem.
04-1170 +++$+++ 14556 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because what the individualization requirement means, in this Court's own jurisprudence, is that mere consideration of mitigating circumstances is not enough. The Court said so in Tennard and in many other cases, Penry v. Johnson, that it's not enough that the sentencer be allowed to consider mitigating circumstances. It must be allowed to consider and give effect to those mitigating circumstances. And when a jury cannot decide between aggravating and mitigating circumstances, when that jury is, nevertheless, required under this -- that situation to impose a sentence of death, the sentence of death has been imposed without the jury having made the requisite individualized sentencing decision under the eighth amendment at the selection stage.
04-1170 +++$+++ 14557 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I might point out -- I just looked at the question presented. It does assume -- and I guess is drafted by the Kansas Attorney General. The question is what happens when mitigating and aggravating evidence is in equipoise. So the assumption on which we took the case is that there will be cases in which there's equipoise.
04-1170 +++$+++ 14558 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. And the Kansas Supreme Court found that that was a real possibility. And the Kansas Supreme Court found this statute unconstitutional in Kleypas because it violates the individualized sentencing requirement, and the court specifically found that it requires death when jurors are unable to decide the balance between aggravating and mitigating circumstances. That's how the statute was construed in Kleypas. I would like to address the jurisdictional issue for a few moments, unless there are any further questions from the Court on the equipoise issue, which I'd be happy to answer. But one of the things I want to discuss today is the jurisdictional issue on the adequate and independent State law ground, which this Court asked the parties to brief. I feel that the State misstates the issue there as well because in the Kansas Supreme Court, the State conceded the Federal unconstitutionality of the Kansas equipoise formula, as decided by the court in the Kleypas case 4 years ago, and defended in this case only on the contested State law ground of severability and bypassed raising a Federal question in a motion for a rehearing, which again relied solely on State law severability grounds.
04-1170 +++$+++ 14559 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, but the -- the Attorney General said that the -- the fact that in this particular case the issue was focused on, in effect, sort of remedy, severance, and so on, was dependent upon the assumption about what Federal law required. It was dependent upon the earlier case which so held. So I don't -- and -- and what he seem -- says seems plausible to me. I -- I don't see how we can divorce the judgment here with the earlier judgment, which Kansas -- which the Kansas Supreme Court relied upon here, which was a Federal ground.
04-1170 +++$+++ 14560 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's clear that the Kansas Supreme Court's decision relies on severability as a basis for its decision, and it's true that the Kansas Supreme Court, in doing so, reiterated the Kleypas holding.
04-1170 +++$+++ 14561 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It wouldn't have even raised the issue had it not been for the earlier Federal holding. Isn't that correct?
04-1170 +++$+++ 14562 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, but Mr. Marsh raised the issue on State law severability grounds. The State conceded that Mr. Marsh was entitled to have his death sentence vacated because of the unconstitutional equipoise provision.
04-1170 +++$+++ 14563 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, do you -- do you -- I -- I take it this is the implication of your position. Do you take this position that in any instance in which a State supreme court decides a case on a Federal -- decides an issue on a Federal ground in case A, and for whatever reason, case A is not brought to this Court for review, that in every subsequent case in the State system, which depends upon State A, the State is totally without the -- or this Court is -- is totally without jurisdiction to review it?
04-1170 +++$+++ 14564 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Where the issue has not been pressed by a party in the State court, no, I don't --
04-1170 +++$+++ 14565 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, how could the issue be pressed? I mean, it had already been decided by the supreme court. I mean, what -- what could the State say to the trial court?
04-1170 +++$+++ 14566 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we asked the court to overrule the severability decision in Kleypas. There was absolutely nothing preventing the State from arguing that the constitutional decision in Kleypas should be overruled. Absolutely nothing preventing that.
04-1170 +++$+++ 14567 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You think this -- you think the State has to challenge as unconstitutional a decision of the State supreme court in -- in the lower court, lower State court.
04-1170 +++$+++ 14568 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that they --
04-1170 +++$+++ 14569 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How do you expect the lower State court to come out on that?
04-1170 +++$+++ 14570 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but futility is never a reason for not raising an issue. Criminal defendants are required to raise issues all the time in order to preserve them for later review. In Engle v. Isaacs, this -- this Court said futility is no excuse. And what is good for criminal defendants, very respectfully, is good for the State. And Justice Rehnquist said as much for the Court in the Court's decision in Illinois v. Gates, that -- that States are not exempt from the ordinary rules of procedure which govern this Court's jurisdiction. And the fact of the matter is that the State not only did not raise the Federal issue in the Kansas Supreme Court below, which it could have, but it conceded the Federal unconstitutionality of the statute.
04-1170 +++$+++ 14571 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's a little different from an adequate and independent State ground argument. You're -- you're now making a -- a waiver argument.
04-1170 +++$+++ 14572 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there's a -- there's a relationship between the adequate and independent State law cases and the not pressed or passed upon cases because, for example, in Michigan v. Long, this Court has said where an issue is pressed -- a Federal issue is pressed in the State courts, then this Court on review will resolve any ambiguity in the Court's opinion in favor of a presumption that the issue was passed upon by the State court. But conversely, in Coleman v. Thompson, this Court held that where an issue is not pressed in the State courts, then the presumption will be the opposite. The presumption will be that the State court has not passed upon --
04-1170 +++$+++ 14573 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We -- we don't need a presumption here. I mean, the -- the only basis for inquiring into severability is the presumed unconstitutionality of the statute. I mean, that's the only basis why severability comes up. We don't have to presume anything.
04-1170 +++$+++ 14574 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the Kansas Supreme Court didn't redecide that issue in the Marsh case.
04-1170 +++$+++ 14575 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It doesn't matter whether it redecided it. It -- it was the postulate of -- of its -- necessary postulate of -- of its decision in this case, it seems to me.
04-1170 +++$+++ 14576 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There -- well, under article III and under section 1257(a), there has to be a case or controversy for this Court to review. There was no live case or controversy in the Kansas Supreme Court on the Federal question of whether the equipoise provision in the Kansas statute was constitutional. It was conceded that it was unconstitutional and the parties agreed on that. It was treated as settled. And all the Kansas Supreme Court did, before overruling the Kleypas severability decision, which is a matter of State law, was to reiterate that holding, and mere reiteration, as this Court knows from the Morrison v. Watson case, approved in Illinois v. Gates, that is not the decision of a Federal question.
04-1170 +++$+++ 14577 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If you're -- if you're right, I take it, we would not have jurisdiction to review a Federal ground that was raised by a State court, even though it had not been raised by the parties. If they get -- you know, they get the opinion from the court and there's a big surprise -- the -- the State court decided to go off on -- on a Federal ground, which had not been pressed -- I take it on your view we would not have jurisdiction to review that.
04-1170 +++$+++ 14578 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe the Court would, and I think that's what the Court's original jurisdictional rules were intended to be. Now, I do understand that the Court has taken jurisdiction over such issues, and it's usually --
04-1170 +++$+++ 14579 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's because the -- the formula is that the issue has to either have been raised or decided.
04-1170 +++$+++ 14580 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the only issue that I could find that says that -- that really enforces that rule is the Cohen v. Cowles Media case. And if you look at the provenance of that decision, that's the only case where the Court actually considered a question for the first time in -- in this Court. And what happened in that case is that the Federal issue that was presented to this Court was actually discussed at oral argument. It wasn't raised by either of the parties in their briefs in the State court, but it was discussed at oral argument. And the Court decided a first amendment issue on the basis of that discussion at oral argument. And so this Court took jurisdiction and stated that as long as it's been passed upon, it's not necessary that it was pressed upon. And the decision, which the Court relied on in that case is, if I'm remembering it correctly, was a decision involving a Federal question which was raised too late to comply with the procedural requirements in State court. And so it's really not the case that this Court routinely takes cases where the issue was not pressed by the parties in the State courts. And that's the situation we have in this case.
04-1170 +++$+++ 14581 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I don't -- I don't -- excuse me. I don't understand how that makes any sense. If you had an -- a -- a case that's litigated entirely on State law grounds and in the State supreme court opinion, they announce we are sua sponte deciding this on the basis of the Federal Constitution and you, State, lose, your argument is that State is just out of luck. They can't seek review of that decision?
04-1170 +++$+++ 14582 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think where the issue is decided sua sponte and affects the parties in that case, then maybe. But that didn't happen here. What happened here was that the court merely reiterated a holding from 4 years ago, and the State law severability decision, which was the issue in contest in this case and the issue that was decided in this case, the matter of State law, and it was sufficient to support the judgment of the Kansas Supreme Court. And really, what -- what the State is trying to do here is to -- I mean, these issues were decided in the Kleypas case, and if we were here on the Kleypas case, there wouldn't be any argument as to whether the Kansas Supreme Court's decision rested on an adequate and independent State law ground because the Federal issue was clearly decided and it was interwoven with the State law determination. But that's not the case here.
04-1170 +++$+++ 14583 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Kleypas didn't hold that the whole statute was bad. Kleypas gave a savings construction of the statute, as I recall.
04-1170 +++$+++ 14584 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, they did. But the State is misconstruing their decision by saying they didn't decide the constitutional question in Kleypas. It was merely construction of the statute to avoid the constitutional issue and therefore --
04-1170 +++$+++ 14585 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but in the case before us, the court -- the Kansas court said -- I think it's 24 or 25 of the -- of the headnote -- we are reconsidering the issue.
04-1170 +++$+++ 14586 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- that language in the court's opinion was, after full reconsideration, we're declining to revisit the issue at the dissenter's invitation. We're declining that invitation to revisit the issue. And there's no question that the court discussed it and thought about it, and the dissenters were clearly inviting them --
04-1170 +++$+++ 14587 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And made a reasoned judgment about it.
04-1170 +++$+++ 14588 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But they didn't reopen the issue. They said there's nothing new here. We don't need to reopen this decision, and --
04-1170 +++$+++ 14589 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, they reopened it to the extent as Justice Scalia has indicated, but they now take a different view of the validity of the State statute.
04-1170 +++$+++ 14590 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They're taking a --
04-1170 +++$+++ 14591 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's -- that's a decision following a reason, and the reason is a Federal reason.
04-1170 +++$+++ 14592 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, no, because the -- what they were saying was that the appropriate remedy in Kleypas was to return the subject to the legislature because the statute was ambiguous and the court had no authority, under separation of powers grounds and under State law statutory interpretation grounds, to construe this statute to mean the opposite of what it said. And that's the decision that they overruled in this case, and that's a State law decision.
04-1170 +++$+++ 14593 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So -- so the State can get mouse-trapped in this way. In -- in the first case, it doesn't take the case up because not too much has been lost, and then in the second case, the court says, oh, by the way, everything has been lost. And you say that we can't review that because -- because the -- the State didn't -- didn't challenge Kleypas at the time.
04-1170 +++$+++ 14594 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Or challenge that decision in this case.
04-1170 +++$+++ 14595 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but that decision in this -- they had no reason to challenge it until the State decided to -- to change it.
04-1170 +++$+++ 14596 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But if they wanted to raise the issue, they could have raised it in either case, and we wouldn't have this problem here. But they didn't raise it, and that presents a jurisdictional problem for this Court. What they're trying to do in this case is yoke a live horse to a dead one to form a plowing team, and it doesn't work.
04-1170 +++$+++ 14597 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I like that. (Laughter.)
04-1170 +++$+++ 14598 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I looked -- as a matter of fact, I looked at our Kansas State seal because it has a plowing -- a horse-drawn plow on it, and I looked at it again this morning before I came in here because I couldn't remember whether it was one horse or two, and it's two horses. And I was thinking about how the meaning of that State seal would be fundamentally altered if one of those horses was dead. (Laughter.)
04-1170 +++$+++ 14599 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
04-1170 +++$+++ 14600 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Woodman. General Kline, you have 4 minutes remaining.
04-1170 +++$+++ 14602 +++$+++ FALSE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The State is here on a final court decision wrongfully -- the State supreme court wrongfully interpreting this Court's eighth amendment jurisprudence. And just as Justice Souter and the Chief Justice's hypotheticals, as it relates to this case, were articulated, it is actually true that in this case the State was not aware that this issue would be raised again and only conceded -- and waiver is truly not an issue because a lower court did not rely upon it. And we have some confusion between the terms here. It only conceded that Kleypas, a decision by the Kansas Supreme Court, was the law of the case in another case subsequently reaching the Kansas Supreme Court. And the Kansas Supreme Court, on its own motion, engaged in a full reconsideration and the respondent in their brief argues that the primary reliance of the court was not on eighth amendment jurisprudence but other grounds. There is no requirement for jurisdiction under 28-1257 that the primary reliance be on a Federal issue. There is a requirement to deny jurisdiction that there be an independent and adequate State ground on which the decision would rest regardless of the outcome of the Federal issue. Clearly that's not the case here.
04-1170 +++$+++ 14603 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Wouldn't they have come out the same way if they never mentioned the Federal issue?
04-1170 +++$+++ 14604 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This case come out -- no, it would not because the Kleypas court found that the Kansas -- or the Kansas death penalty was constitutional as construed. And the Kansas court in this case found it unconstitutional on its face. And there is a significant difference, and the court raised the issue again. I would like to point out to the Court that there are five ways that a juror can, after their reasoned moral decision, give effect to the belief that the mitigating evidence does not warrant the death penalty. The juror can state that they have a reasonable doubt as to whether the State has met its burden of proving that the mitigating factors do not outweigh the aggravating factors. The juror can simply delay. Kansas law has a defect -- default for life in its sentence or in its structure, and I would encourage you to read on page 28 of your appendix instruction number 12 in which the jury is told that if, after a reasonable time, you are unable to make a decision -- in other words, in a doubtful case -- the judge is required by law to dismiss the jury and sentence the defendant to life. And so there is a default for life, and that is another way that a juror can give effect to their reasoned moral decision that death is not appropriate. The juror can give effect to their reasoned moral decision that is not appropriate by determining that the mitigating factors outweigh the aggravating factors. And the juror under instruction number 5 --
04-1170 +++$+++ 14605 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it cannot do that by determining that they're in equipoise.
04-1170 +++$+++ 14606 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Justice Stevens.
04-1170 +++$+++ 14607 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which is the very issue your -- your petition presents us with.
04-1170 +++$+++ 14608 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is, but the juror does know what the effect of that decision is and, therefore, is able to engage in a reasoned moral choice. What truly happens -- and -- and Justice Breyer alluded to it, I believe, as it relates to this hypothetical about weighing molecules -- is that a juror essentially steps back and decides what is the appropriate sentence --
04-1170 +++$+++ 14609 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, do it. Do it. Make the reasoned moral choice. And the facts are that we have, because of the balancing, molecules or not -- we have by the balancing made a determination that anything for the bad that distinguishes this person from the ordinary is -- is equally balanced by the good. Now, make the moral choice.
04-1170 +++$+++ 14610 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the moral --
04-1170 +++$+++ 14611 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What is the reason?
04-1170 +++$+++ 14612 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the moral decision, Justice Breyer, is determined in all the variables of the introduction of the evidence, and as this Court has required under the eighth amendment, that it allow the jury to consider and give effect to all mitigating evidence relevant. And that's in Kansas law. I would state this in closing, and that is that the Kansas legislature reenacted the death penalty for the first time since this Court struck it down in Furman in the spring of 1994. And in doing so, it gave great deference to this Court's role as final arbiter of the meaning of the Constitution. And if you read the instructions and the law that is provided to you in this case, you will see this Court's words mirrored back to you in the scheme of the Kansas law as it relates to the death penalty. Thank you.
04-1170 +++$+++ 14613 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General Kline. The case is submitted.
04-1170b +++$+++ 14617 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++  +++$+++ We'll hear argument next in 04-1170, Kansas versus Marsh. General Kline.
04-1170b +++$+++ 14619 +++$+++ FALSE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: This Court has never held that a specific method of weighing aggravating and mitigating evidence is required, yet in its individualized sentencing line of cases this Court has consistently said that all the Eighth Amendment requires is that a juror consider and give effect to all relevant mitigating evidence. In pages 23 through 28 of your appendix, you will find the Kansas jury instructions and Kansas law clearly, on four occasions, instruct individual jurors that they must individually consider all mitigating evidence that they find. Furthermore, the jurors are instructed in five different methods in which they can give that mitigating evidence the effect of a life sentence, and only one manner in which, acting unanimously and after the State has met the highest burden allowed by law in three separate measurements, beyond a reasonable doubt demonstrated that the death sentence is appropriate. Specifically, instruction number 4, paragraph 2 on page 24 of the joint appendix, will show the jurors are instructed that mercy, in and of itself, is a mitigating piece of evidence, and later, in the instruction that lays out the mitigating evidence presented in this specific case, they are told, in paragraph 18 on page 26 of your joint appendix, that mercy, by itself, can be sufficient to warrant a sentence other than death.
04-1170b +++$+++ 14620 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I'm sorry, what instruction is that?
04-1170b +++$+++ 14621 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, you will find it -- first of all, mercy is referred to in paragraph -- in instruction number 4 --
04-1170b +++$+++ 14622 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I got --
04-1170b +++$+++ 14623 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- paragraph 2 -- okay.
04-1170b +++$+++ 14624 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that one. It's the other one. It was instruction number --
04-1170b +++$+++ 14625 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The instruction, again, is number 4 in paragraph 18 on page --
04-1170b +++$+++ 14626 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I gotcha.
04-1170b +++$+++ 14627 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- 26.
04-1170b +++$+++ 14628 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ All the way at the end of 4, okay.
04-1170b +++$+++ 14629 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You will see the instruction for mercy again.
04-1170b +++$+++ 14630 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you began by saying that there's three different measures, I think -- I think was the word you used. And the State, I take it, must prove, beyond a reasonable doubt, (a) that it was an aggravated -- or, (a) that it was an aggravated murder, (b) that there was another crime involved --
04-1170b +++$+++ 14631 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice --
04-1170b +++$+++ 14632 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- sort of --
04-1170b +++$+++ 14633 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Kennedy --
04-1170b +++$+++ 14634 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- if you could just walk me through that.
04-1170b +++$+++ 14635 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly. First of all, the State has to prove, beyond a reasonable doubt, with jury unanimity, that the defendant is guilty of capital murder. And Kansas has one of the most narrow death-penalty statutes in the Nation. And then, past that time, we then engage in a sentencing --
04-1170b +++$+++ 14636 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
04-1170b +++$+++ 14637 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- phase 5.
04-1170b +++$+++ 14638 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- capital murder includes, in this case --
04-1170b +++$+++ 14639 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Capital murder includes, in this case, that the homicide involved more than one person in a single act.
04-1170b +++$+++ 14640 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Involved more than one person. Then, second?
04-1170b +++$+++ 14641 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Then we go to the sentencing phase, in which the State has to prove one of eight statutorily defined aggravating factors beyond a reasonable doubt with jury unanimity. There were three specific aggravating factors that were found by the jury in this instance. And then, the defendant introduces all mitigating evidence, and the standard of introduction is relevancy. But, unlike the Walton case, which has a functionally identical provision that is at issue here, the State maintains the burden, while, in Walton, the burden was provided to the defendant to demonstrate that the mitigating factors were so substantial to call for leniency.
04-1170b +++$+++ 14642 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You had to prove, beyond a reasonable doubt, the mitigating factors do not outweigh the aggravating factors that have already been established.
04-1170b +++$+++ 14643 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. And that is found in instruction number 10. And as we go through this process, you see that the Kansas death-penalty law has a default to life in virtually every stage of the prosecution of the case. And then, instruction number 10 is a determination by the legislature consistent with this Court's precedent, because we have narrowed the class of defendants who are eligible for death, consistent with Furman and the concern for guided discretion. And then, we have allowed the introduction and consideration of all mitigating evidence. The juror is then told how to give the effect that they desire, after the reasoned moral decision, to that mitigating evidence. As defense counsel for Mr. Marsh, in the transcript of the sentencing phase, on page 66, volume 4 -- it is not in your joint appendix, but it is part of the record before the Court -- stated to the jury in closing, "The practical fact is that each of you will decide whether or not you believe death is the appropriate sentence. And if you decide that death is not the appropriate sentence, you have decided that the mitigators outweigh the aggravators." What instruction number 10, which is before you today, which states that the State must prove beyond a reasonable doubt that the mitigators do not outweigh the aggravating factors, is, is guidance to the jury on how they can give the --
04-1170b +++$+++ 14644 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ May I just ask --
04-1170b +++$+++ 14645 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- effect --
04-1170b +++$+++ 14646 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- this question and kind of cut through -- is it a correct interpretation of the instructions, as a whole, to say, in effect, "If you find the aggravating and mitigating circumstances are equally balanced, you shall impose the death sentence"?
04-1170b +++$+++ 14647 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If a juror finds -- that is correct, Justice Stevens -- if the juror's decided conclusion and reasoned moral judgment is that the mitigating factors and the aggravating factors are in balance, and finds that beyond a reasonable doubt, instruction number 10 clearly indicates that death is the appropriate sentence. So, it --
04-1170b +++$+++ 14648 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The difficulty I have is in the phrase that you have mentioned in the course of your argument a couple of times referring to the "reasoned moral response." And the difficulty I have in squaring "reasoned moral response" with the construction that the Kansas Court and we all agree is the proper construction of the -- of the -- of the equipoise kind of provision, is this. Kansas has a right, as I understand it, to define what it regards as the aggravating circumstances, those that support a death verdict. And Kansas has done so. Kansas is also saying that if a jury cannot find that the aggravators, as we've defined them, outweigh the mitigators -- i.e., if the jury is in equipoise -- the result must be death, anyway. And that does not seem to be a reasoned moral response. I'm assuming that a reasoned moral response would be: the death penalty should be imposed because the aggravators do outweigh -- i.e., it's not equipoise -- the aggravators are heavier. And because Kansas is saying, "Even though they're not, death is the result, anyway," it doesn't seem like a reasoned moral response. What is your answer to that?
04-1170b +++$+++ 14649 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, of course the State believes that it is. It is, first of all, consistent with this Court's precedent as what is required --
04-1170b +++$+++ 14650 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's the issue.
04-1170b +++$+++ 14651 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And in the -- in the Walton case, this Court found that a functionally identical provision in Arizona, even though the burden remained on the defendant, was appropriate after the State had met the requirements of guided discretion, as well as the individualized sentencing requirement, in setting about a -- proving that, "This defendant is more deserving of death than anybody else convicted of the same crime."
04-1170b +++$+++ 14652 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But here we have, it seems to me, to be a stark finding that it has not been proven. That is what "equipoise" means. If aggravators are the basis for a death sentence, the equipoise finding is, "Aggravators don't predominate. We cannot make that conclusion. We're right on the fence." And it seems to me that to call that a reasoned moral response -- "We're on the fence, but execute anyway" -- seems a total inconsistency.
04-1170b +++$+++ 14653 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The State maintains, Justice Souter, that the decision that the mitigating factors do not outweigh the aggravating factors is a decision, and it is a --
04-1170b +++$+++ 14654 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it's a decision that says, "We don't know what should be done." If aggravators define the basis for execution, and mitigators define the basis for life, the equipoise verdict says, in so many words, "We don't know which is more important." And Kansas says, when the jury comes back and says, "We don't know," that the result should be death. And that is what seems to me inconsistent with the notion of a reasoned moral response.
04-1170b +++$+++ 14655 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The distinction, Justice Souter, that I believe, from your analogy, is that the Kansas Legislature has said they do know, and that death is appropriate once a defendant has been found guilty of capital murder, in a very narrow definition. And then, once the --
04-1170b +++$+++ 14656 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It seems to me it sounds different if you put it differently. Surely, it's a reasoned moral response to say, "We have found these horrible aggravating factors in this murder. It's not even your usual murder. There are these terrible aggravating factors. Three of them, we found. And we further find that there is no mitigating evidence to outweigh those aggravating factors." That seems to me a perfectly valid moral response.
04-1170b +++$+++ 14657 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Justice Scalia.
04-1170b +++$+++ 14658 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But that is not our case, is it? Because our case is not, "We don't find that the mitigators outweigh." Our case is, "We find the mitigators are of equal weight." That's why you get to equipoise. It's not a question of the failure of mitigators to predominate.
04-1170b +++$+++ 14659 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
04-1170b +++$+++ 14660 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is the sufficiency of mitigators to equal in weight. And that's what poses the problem, it seems to me.
04-1170b +++$+++ 14661 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it seems to me that to be equal in weight is not to predominate. And that's all the jury is saying --
04-1170b +++$+++ 14662 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would agree, Justice Scalia --
04-1170b +++$+++ 14663 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- if there's nothing to outweigh the aggravating factors.
04-1170b +++$+++ 14664 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of course it is not to predominate, but it is something more precise than merely not predominating. It is a fact, in effect, that you don't know, if all you know is that they don't predominate. The fact that you know, here, is that they equal, and --
04-1170b +++$+++ 14665 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Do we know that as a fact?
04-1170b +++$+++ 14666 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Roberts, I believe that there are a couple of things which might help illuminate a little bit more what the jury faces in this instance. First of all, the statement --
04-1170b +++$+++ 14667 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Do we have a return of a verdict saying, "We find these factors in equipoise"?
04-1170b +++$+++ 14668 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is a verdict form that requires the jury, with unanimity, if the sentence is death, to indicate that the State has met the burden beyond a reasonable doubt of demonstrating --
04-1170b +++$+++ 14669 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So, what we have is a situation where this is a theoretical possibility under the statute.
04-1170b +++$+++ 14670 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-1170b +++$+++ 14671 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not a situation where this is what the jury has said.
04-1170b +++$+++ 14672 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The jury does not find in that fashion.
04-1170b +++$+++ 14673 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. We don't -- we don't know whether that was the case here or not.
04-1170b +++$+++ 14674 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ How --
04-1170b +++$+++ 14675 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As I understand it, our question is, if a jury could return the death verdict in the equipoise situation, as the Kansas Supreme Court has defined it, is that -- is that statute allowing for that possibility constitutional? Isn't that --
04-1170b +++$+++ 14676 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is the issue, just --
04-1170b +++$+++ 14677 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1170b +++$+++ 14678 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- as it was in Walton, which had --
04-1170b +++$+++ 14679 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1170b +++$+++ 14680 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a functionally identical provision that required that the defendant demonstrate that there were mitigating factors substantial enough to call for leniency, which --
04-1170b +++$+++ 14681 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We're not talking, just -- we're not talking about a numerical equipoise. I -- there's three aggravators and three mitigators, in equipoise. And the -- presumably, the individual jurors can give what weight they think is appropriate to the mitigating factors. They can find all three aggravators met, and say, "Well, I still think, under factor 18, that mercy ought to outweigh death."
04-1170b +++$+++ 14682 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Justice Roberts. And, in fact, they are informed that it is not a numerical equation.
04-1170b +++$+++ 14683 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But is it -- is it like in a -- in a -- take a civil case where the judge gives the standard charge about, "Imagine two plates and a scale, and if they are in equipoise, then you find against the party who has the burden of proof" -- if we make that comparison, then it's pretty clear that the burden of proof is on the defendant if the answer is -- to the equipoise question is, "Then you must come in with a death verdict."
04-1170b +++$+++ 14684 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, unlike in Arizona, there is a specific instruction to the jury that they must decide beyond a reasonable doubt that the mitigating factors do not outweigh the aggravating factors before the death sentence is imposed. And it is analogous to instructing the jury on how to give the effect they desire to the mitigating and aggravating factors that have been presented. I would possibly agree that we would have a constitutional issue if it was similar to instructing a jury, "You either mark blue or red on the jury verdict form, and we will not tell you the effect of that decision." However, this instruction clearly lets them know that a decision beyond a reasonable doubt that the State has met its burden, that the mitigators do not outweigh the aggravating factors, that the effect is death. And --
04-1170b +++$+++ 14685 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Is there a difference in the moral burden on the jurors, or the psychological burden on the jurors, in the situation where they have to find that the aggravators outweigh the mitigators, and, therefore, make an affirmative finding that leads to the sentence of death, as opposed to the situation where they can say, "We can't decide, under the applicable burden of proof, which side is weightier," and, therefore, they allow a default rule to dictate what the sentence is going to be?
04-1170b +++$+++ 14686 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Alito, I do not believe that that is what occurs, because, indecision, under Kansas law, is clearly indicative of a life sentence. In fact, if the jury does not, with unanimity, come together and make an affirmative decision, and indicate such on the verdict form within a reasonable time, they are told and instructed, "the judge shall dismiss the jury." And the State's --
04-1170b +++$+++ 14687 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, but if they find -- if they agree, beyond a reasonable doubt, that the aggravators and the mitigators are in equipoise, then they allow the default rule to dictate the sentence of death. Isn't that right?
04-1170b +++$+++ 14688 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, at some point. I wouldn't term it a "default rule" in every statutory scheme involving the death penalty. There is a point in time when the jury is informed that the result of their deliberations is a death sentence. So, you can call something a default rule in virtually any State. And, in fact, relying on the Walton decision, many States have functionally identical statutes to Kansas, and courts have interpreted the Walton decision as resolving this issue. In Adamson v. Lewis, the Ninth Circuit said that the issue of the potential, the hypothetical, of equipoise was resolved in Walton. Furthermore, the Idaho -- the Seventh Circuit, relating to the Idaho scheme relating to the death penalty, found that this Court resolved the issue in Walton, as did the Illinois Court. So, there have been several findings based on Walton. And, in fact, the Kansas Legislature enacted this death penalty statute soon after Walton --
04-1170b +++$+++ 14689 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ General Kline, can I ask you this question? Supposing the law was that you're supposed to be instructed that, "Unless the mitigating factors substantially outweigh the aggravating factors, the sentence shall be death." Would that be permissible?
04-1170b +++$+++ 14690 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, as you're aware, that's the Blackmun dissent in Walton, in the hypothetical that he posed with his concern about Walton. I believe that there could come a point in time, based on the instruction, that the jury was not able to give full effect to the mitigating evidence that they desired.
04-1170b +++$+++ 14691 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what about my hypothetical?
04-1170b +++$+++ 14692 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's -- that there -- it would approach a time, possibly, where --
04-1170b +++$+++ 14693 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Would it --
04-1170b +++$+++ 14694 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- this Court would find --
04-1170b +++$+++ 14695 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Would it be constitutional or unconstitutional?
04-1170b +++$+++ 14696 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court, under --
04-1170b +++$+++ 14697 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In your view.
04-1170b +++$+++ 14698 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ On my view? It would approach a problem with this Court's --
04-1170b +++$+++ 14699 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I know it approaches the problem. I'm wondering if it gets there. [Laughter.]
04-1170b +++$+++ 14700 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd defer to the wisdom of this Court. [Laughter.]
04-1170b +++$+++ 14701 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Leaving law out of it, which I'd like to do, just for the sake of argument, imagine you're a juror, and this is a totally contrived situation, which I think we're deciding -- I don't know if there's ever been such a situation -- but you're a juror, and you're told the following by a fellow juror, "The reason that we have these aggravating circumstances, which are hard to understand here, is, we want to be sure this fellow is, morally speaking, somewhat more deserving of death, than the average." And then he says, "And the reason that we have these mitigating circumstances here is because every one of them means that he's somewhat less moral -- he's not as morally undeserving, cuts the other way, it reduces -- it makes him less deserving of death, morally speaking." Now, you're the juror, how do you feel about this?" And you say, "They're absolutely in balance, absolutely in balance. For every fact here on the aggravating side that puts me thinking, morally speaking, he's more deserving of death, there is a mitigating factor which makes me think, morally speaking, he's less deserving of death. So, I'm in perfect balance." And your fellow juror says, "Now, will you please give me, then, one moral reason why he should be executed?" And what's your answer?
04-1170b +++$+++ 14702 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My answer would be that the law clearly provides that if that is the finding --
04-1170b +++$+++ 14703 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, but if the law says, "You have to be able to give, morally speaking, reason -- you have to reason your way towards the moral conclusion that he's deserving of death" -- that's why I tried to take the law out of it. I don't want you to be a lawyer. I want you to be a juror. And I want you to give a moral reason --
04-1170b +++$+++ 14704 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The moral reason would be --
04-1170b +++$+++ 14705 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- why, when this is in equipoise, he is more deserving of death than the average.
04-1170b +++$+++ 14706 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, I would say that the moral reason is, "I know the effect of that deliberation, and I know that, if I make that finding, that the death sentence will be warranted."
04-1170b +++$+++ 14707 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, and of course --
04-1170b +++$+++ 14708 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1170b +++$+++ 14709 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the jury doesn't have a free-falling moral judgment to make. It accepts the judgment of the majority of the people in Kansas that certain aggravators, and only those aggravators, shall be counted against the defendant --
04-1170b +++$+++ 14710 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
04-1170b +++$+++ 14711 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and that all of them shall be -- even if the juror himself does not believe, morally, that this particular aggravator ought to be there. So, it's not as though our law says that somehow the jury has to -- each juror has to be able to make, like Solomon, his own moral judgment on this fellow. And one of the things that the -- that the Kansas law prescribes is that when they're in equipoise, the people of Kansas think that the aggravators that they have specified are serious enough that unless there is something to overcome them, the death penalty is appropriate. That seems to me a moral judgment within the limited range of moral judgment that the jury is accorded.
04-1170b +++$+++ 14712 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Justice Scalia. And the concern about unfettered moral judgment of a jury calls into question the original purpose for Furman. And so, there is guided discretion --
04-1170b +++$+++ 14713 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of course, they have unfettered discretion with respect to the mitigating factors, don't they? Under --
04-1170b +++$+++ 14714 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
04-1170b +++$+++ 14715 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- under factor 18, any other circumstance which they find serves as a basis for a sentence other than death.
04-1170b +++$+++ 14716 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Justice --
04-1170b +++$+++ 14717 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I take it --
04-1170b +++$+++ 14718 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Mr. Chief Justice.
04-1170b +++$+++ 14719 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the moral answer is also, "He stands before us with the scales already tipped. He stands before us having been shown, beyond a reasonable doubt, to have committed aggravated murder. He has the obligation to show us why he should be excused from that penalty. He has not done so. We can take anything that he came -- brought to our attention, and we can say that this outweighs." It does not.
04-1170b +++$+++ 14720 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And, Justice Kennedy, that is the decision in the holding in Walton. And --
04-1170b +++$+++ 14721 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Is that the law in Kansas? I mean, I thought -- correct me if I'm wrong, because I may have made a wrong assumption here -- I thought the finding of guilt to an aggravated murder is the preface to a determination as to whether aggravators or mitigators predominate. And, based upon that determination, there will be a decision as to whether the sentence should be death or life.
04-1170b +++$+++ 14722 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The first determination that a jury engages in is whether the defendant has been proven, beyond a reasonable doubt, guilty of capital murder --
04-1170b +++$+++ 14723 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-1170b +++$+++ 14724 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- which is defined in a very narrow statute. Kansas --
04-1170b +++$+++ 14725 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And, at that point, we don't have any way of knowing, I take it, whether the penalty should be life or death.
04-1170b +++$+++ 14726 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Then we have -- you're correct.
04-1170b +++$+++ 14727 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
04-1170b +++$+++ 14728 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And then we have a separate sentencing phase in which the State first bears the burden of demonstrating one -- eight -- of eight aggravating factors is present. And that burden is beyond a reasonable doubt --
04-1170b +++$+++ 14729 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay. But --
04-1170b +++$+++ 14730 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- with jury unanimity.
04-1170b +++$+++ 14731 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
04-1170b +++$+++ 14732 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
04-1170b +++$+++ 14733 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- what I'm -- what I'm -- what I'm getting at is, I don't -- I -- as I understand the Kansas scheme, the determination of guilt, to aggravated murder, does not create a presumption in favor of the death penalty.
04-1170b +++$+++ 14734 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, the --
04-1170b +++$+++ 14735 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
04-1170b +++$+++ 14736 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that is correct. That is correct. There are several steps.
04-1170b +++$+++ 14737 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It depends on what you mean by a "presumption." It certainly -- it certainly says that unless you find something that outweighs this, the death penalty is the proper penalty.
04-1170b +++$+++ 14738 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia --
04-1170b +++$+++ 14739 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The burden is on the jury to find something to outweigh it. And, in the absence of a finding of something that outweighs it, when these aggravators are found, the death penalty is the proper penalty.
04-1170b +++$+++ 14740 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, that is correct. Once the State has met the burden of proving that one of the eight statutory aggravators is present --
04-1170b +++$+++ 14741 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. But the fact of -- let me -- I think we've got a terminological problem -- the fact that there has been a finding of guilt of aggravated murder is not tantamount, as I understand it, to a finding that aggravating factors to be considered at the penalty phase have also been found. Is that --
04-1170b +++$+++ 14742 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is --
04-1170b +++$+++ 14743 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- correct?
04-1170b +++$+++ 14744 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- correct.
04-1170b +++$+++ 14745 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
04-1170b +++$+++ 14746 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is a separate burden there --
04-1170b +++$+++ 14747 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
04-1170b +++$+++ 14748 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Justice Souter. And as it relates to the "give effect" language, the cases that this Court has considered regarding that are dramatically different. In those cases, such as the Penry cases and other cases, the concern was, the jury was affirmatively instructed that they could not use evidence that was introduced and relevant in a manner which would lead to mitigation, such as the defendant's youthfulness. And the special instruction in Texas said that they could only utilize that evidence to determine whether there was a likelihood of re-offense. And this Court reasoned that it is possible to look at youthfulness as mitigating factor which diminishes the moral culpability of the defendant. There is no claim in this case that the jurors were unable to take the mitigating evidence and give it whatever effect they desired in mitigation. In fact, they are instructed that they must individually consider all such evidence. And then they are instructed to make their decision based upon what effect that they would give it.
04-1170b +++$+++ 14749 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Can --
04-1170b +++$+++ 14750 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So --
04-1170b +++$+++ 14751 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Can I ask you a question that goes to your response to Justice Souter's last question? As I understand the scheme, maybe my understanding is wrong, once they have found the existence of those aggravating factors that justify the death penalty, and then you move into the penalty phase for them to decide whether, in fact, the death penalty would be imposed, it's not up to them to -- they can't eliminate one of those aggravating factors that has been found. They have to take into account all of the aggravating factors that have been found. Isn't that right?
04-1170b +++$+++ 14752 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Justice Scalia. I think the confusion is the use of the term "aggravated murder," which would be not quite correct under Kansas law. There is a statutory requirement of a finding of guilt of capital murder, and that is in very narrow circumstances. Kansas has one of the most narrow death penalties in the Nation. Then once that guilt is determined, we then move to the phase where the State must prove an aggravating factor in addition to having proved that the defendant is guilty of capital murder. Once that is achieved, then the jurors are instructed to give way to a consideration to all aggravating factors that they find, with unanimity, to exist, and to consider all mitigating evidence which they find, individually, to exist, with the only burden on the defendant being relevancy for introduction. And then, they are instructed to consider whether the State has proven, beyond a reasonable doubt, that the mitigating factors do not outweigh the aggravating factors. And, Mr. Chief Justice, if it may please the Court, I'd like to reserve the remainder of my time.
04-1170b +++$+++ 14753 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, General Kline. Ms. Woodman.
04-1170b +++$+++ 14755 +++$+++ FALSE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Since the argument of the attorney general was addressed exclusively to the question of the constitutionality of the Kansas statute, I will devote all of my argument to that subject, as well, although I am sure that the Court, in deliberations, will be considering the several jurisdictional issues which were briefed and argued earlier in the term. And if there are no questions on those jurisdictional issues, I will proceed to the merits. To pick up on some of the things that were said during Attorney General Kline's argument, the Eighth Amendment requires reliability in the determination that death is an appropriate sentence. And at the selection stage, the question is whether the jury has made a reliable, collective, responsible decision based upon the unique circumstances of the individual defendant that death is an appropriate sentence and that this defendant is particularly culpable in a way that distinguishes him from the mass of death-eligible defendants. And the problem with the equipoise provision here, which the State agrees can occur under the Kansas statute, is that we don't know from a death verdict pronounced by a jury in Kansas whether the jury did decree death by equipoise or not. Death sentences must be rationally reviewable. And when we look at the -- at a death sentence that's been pronounced in Kansas, we can't determine whether the jury decreed death by equipoise.
04-1170b +++$+++ 14756 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We are confident that the jury found aggravating factors. We know that.
04-1170b +++$+++ 14757 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1170b +++$+++ 14758 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And we know --
04-1170b +++$+++ 14759 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, and I agree --
04-1170b +++$+++ 14760 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that they found them beyond a reasonable doubt.
04-1170b +++$+++ 14761 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. The jury did find an aggravating factor beyond --
04-1170b +++$+++ 14762 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And we know --
04-1170b +++$+++ 14763 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- a reasonable --
04-1170b +++$+++ 14764 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- we --
04-1170b +++$+++ 14765 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- doubt.
04-1170b +++$+++ 14766 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and we know that they found that the defendant had not shown that mitigating factors outweighed those aggravating factors.
04-1170b +++$+++ 14767 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. But the Kansas Supreme Court, in the Kleypas case, examined the Kansas statute -- which, by the way, is unique to Kansas; no other State in the country has a statute like this, and this will affect no State outside of Kansas -- they examined this statute in great detail, and they --
04-1170b +++$+++ 14768 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You disagree from your -- with your friend on the other side on that point.
04-1170b +++$+++ 14769 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Whether it's unique?
04-1170b +++$+++ 14770 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ How can we check on that? No, he said that a number of other State statutes would be affected by our coming out the way you would like us, on this.
04-1170b +++$+++ 14771 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't see how, because --
04-1170b +++$+++ 14772 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because he said --
04-1170b +++$+++ 14773 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Kansas --
04-1170b +++$+++ 14774 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- he said it would change Walton, and that would impair those other State statutes.
04-1170b +++$+++ 14775 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As we argue in our brief, Walton simply did not speak to this --
04-1170b +++$+++ 14776 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1170b +++$+++ 14777 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- issue. And, in fact, the Arizona Supreme Court, in Walton, interpreted the Arizona statute to require that aggravators outweigh mitigators.
04-1170b +++$+++ 14778 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I didn't mean to interrupt your argument, but presumably the attorney general will tell us, in his rebuttal.
04-1170b +++$+++ 14779 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure. And the Montana statute, which reads precisely the way Arizona's is, they've decided the equipoise issue and said that the language of that statute does not mandate death by equipoise. So, those statutes are distinguishable, and there's simply no other State that has a statute which mandates death by equipoise. In any event, the Kansas Supreme Court did interpret the statute to contain a mandatory death-by-equipoise provision, which the State's question presented assumes is the case. And the court, familiar with the way the statute has operated, and is likely to operate it in Kansas, found that equipoise can happen, and that it risks unreliability in capital sentencing in a way that's forbidden by the Eighth Amendment. And I think one of the problems here is that the terminology of "weighing" conveys a false impression of predefined weights. And the attorney general conceded that that's not how juries consider the balancing of aggravating and mitigating circumstances. And we agree with that. And that's why it is wrong to view this as principally a burden-of-proof issue. It's not. The issue, at the selection stage -- the State certainly has the burden to prove an aggravating circumstance beyond a reasonable doubt, but, at the selection stage, the issue is not meeting some particular burden of proof, it's whether the jury has made a reliable, responsible, collective decision that this unique defendant deserves the death penalty that distinguishes him --
04-1170b +++$+++ 14780 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It seems to me that --
04-1170b +++$+++ 14781 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- from other death-eligible --
04-1170b +++$+++ 14782 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that that --
04-1170b +++$+++ 14783 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- defendants.
04-1170b +++$+++ 14784 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that that hurts you somewhat. If you want to give us this visual metaphor of a scale, or a football field, where you move it beyond the 50-yardline, whatever visual metaphor you want, and you weigh, you balance where the scales of justice balances, it seems to me that that's a stronger case than saying the jurors can establish their aggravation, then they can take any mitigating factor they want, for any reason, and apply it. And they can't do that, because the defendant hasn't shown it. It seems to me that that's -- that that's a weaker argument than if you had this balancing mechanism that was our controlling metaphor.
04-1170b +++$+++ 14785 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, let's look at the way that equipoise can happen under the Kansas statute -- and I think Justice Alito alluded to it -- that if the jurors can't decide between aggravated and mitigating circumstances, the sentence is death. The statute decrees death, and --
04-1170b +++$+++ 14786 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They've already decided aggravating circumstances, you can't say they can't decide it. They've already decided aggravating circumstances.
04-1170b +++$+++ 14787 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They've decided --
04-1170b +++$+++ 14788 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And what they're deciding is that there's no mitigating circumstances to outweigh it.
04-1170b +++$+++ 14789 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What they've decided is that, in looking at aggravating and mitigating circumstances together, they can't determine, one way or the other, whether aggravators outweigh mitigators or mitigators --
04-1170b +++$+++ 14790 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-1170b +++$+++ 14791 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- outweigh aggravators.
04-1170b +++$+++ 14792 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But how realistic is that as a possibility when you're talking about abstract concepts as mitigating factors, like how much mercy should be shown? I mean, do you really think there's any juror who's going to say, "All right, I'm giving -- I've found the aggravating circumstance that he killed two people, and I've found the aggravating circumstance that it was particularly heinous to slash the throat and leave the toddler to burn. But I also think that mercy ought to be shown. But, you know, it just happens to come up to exactly the level of the aggravating circumstances. So, I'm stuck. I don't know what to do." I don't think that's the way jurors would react. They either think that the need to show mercy or, the one before that, that he's a talented artist, outweighs the fact of the aggravating circumstances, or it doesn't. I just think it's an unrealistic supposition. And there's nothing in the statute -- they don't get an equipoise instruction. So, how -- I mean, is there any reason to think that jurors do come to that balance between such inchoate concepts in the first place?
04-1170b +++$+++ 14793 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I think it can occur in close cases. And, after all, those are the only cases where equipoise would even be relevant. And let me give you an example. Suppose there's a woman who wants to donate a million dollars to Yale Law School, and, as part of that donation, she's going to -- she has --
04-1170b +++$+++ 14794 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Is that an aggravating circumstance? [Laughter.]
04-1170b +++$+++ 14795 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, bear with me for a minute, Your Honor. She has to choose a portrait of her beloved husband to hang in the law school. These portraits were taken at different times, they have different qualities, different features. And she has to choose one. And this decision proves extraordinarily difficult for her to make. And she compares the relative qualities of the two portraits. They're both good. She loved her husband. And she simply cannot choose between the two. And so, she does one of two things. One is that she just can't bear to debate with herself anymore about which one is the better-quality portrait; and so, she becomes agnostic about it and says, "I give up. Pick one." And so, she picks one. The other is that the decision is simply too difficult for her to make; and so, she abdicates that decision and says, "Let the dean pick." And you can analogize that to the ways in which this statute can operate. And the jury can arrive at equipoise by becoming agnostic about the decision on whether -- on the balance between aggravating/mitigating --
04-1170b +++$+++ 14796 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think your --
04-1170b +++$+++ 14797 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- circumstances.
04-1170b +++$+++ 14798 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think your analogy took away what I would have regarded as the basis for my question. I think it may well be true that people have difficulty deciding between two portraits. I'm not sure people come to the sense that someone who's guilty of allowing a 19-month-old to burn to death and slashing the throat of her mother thinks it's equally balanced when they're inclined to show mercy, for whatever reason. It seems to me they either make a determination that the circumstances of his upbringing, emotional instability outweigh the responsibility for what they had found to be aggravating factors, or they determine that the aggravating factors outweigh the fact that they may show mercy for other basis. I just -- I can see thinking two portraits are indistinguishable. I just don't see a juror functioning and saying, "I just can't decide whether to show mercy or to convict for death." And they're equally balanced. I understand the idea they may debate it with the other jurors, but, to come and say, "You know, I just can't decide," it seems to me that the -- particularly since they can put as much weight into the mitigating factors as they want -- they can say, "I want to show a lot of mercy," they can say, "I want to show a little bit of mercy" -- but to say that, "I want to show just enough mercy that is exactly balanced," I don't understand that.
04-1170b +++$+++ 14799 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you see, individual jurors, in the course of deliberations -- this is a qualitative judgment, after all, and individual jurors, in the course of deliberations, might be leaning one way or the other at different times during deliberations. But what this equipoise provision does is that it allows the jurors to compromise on equipoise when they simply cannot deliberate anymore, or if they simply just want to avoid making the hard decision.
04-1170b +++$+++ 14800 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Would it be constitutional if the Kansas statute said that, "The jury must find, by a preponderance, that the aggravating factors outweigh the mitigating factors"?
04-1170b +++$+++ 14801 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1170b +++$+++ 14802 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And wouldn't a defendant be better off under the current Kansas statute than under a statute like that, where, under the current statute, the jury has to find, beyond a reasonable doubt, that the aggravating factors and the mitigating factors are at least in equipoise?
04-1170b +++$+++ 14803 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the jury does have to find equipoise beyond a reasonable doubt. But the fact remains that the jury is making that decision of equipoise, which requires the death sentence, without having made the individualized sentencing determination required at the selection stage under the Eighth Amendment. And that's the problem with the equipoise provision, because it allows the jury to avoid making that decision, which is --
04-1170b +++$+++ 14804 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I mean --
04-1170b +++$+++ 14805 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- required.
04-1170b +++$+++ 14806 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- suppose the jury thinks that the aggravating factors outweigh the mitigating factors 51-49. Now, under the first statute that I hypothesized, that would result in a verdict of death, would it not? What would the result be under the -- under the current Kansas statute, where the aggravators have to be shown, beyond a reasonable doubt, to outweigh the mitigators?
04-1170b +++$+++ 14807 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think if the statute requires that the aggravators outweigh mitigators, this Court has upheld that formula. That is a decision that the jury has made. And the legislature can make that decision. And so, when you look -- that's why I'm trying to -- I mean, the State agrees that this is not a quantitative determination. And I will grant you, if the jury is -- if it were a quantitative determination, which is totally unrealistic, and we agree with the State's reasoning on that -- then if the jury is precisely exactly equivalent, 50-50, on aggravating and mitigating circumstances, that might be said to constitute a decision. But, as even the State argues, that's not how jury deliberations work. And under this equipoise provision, the jury can decree death without having made the individualized sentencing decision required at the selection stage. And it's because, on the one hand, if the decision is too close to call, the equipoise provision allows the jurors to simply give up and settle on equipoise as a group. This is a group decision, after all. They have to be unanimous on the question of whether aggravators --
04-1170b +++$+++ 14808 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ May I ask you --
04-1170b +++$+++ 14809 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- are not --
04-1170b +++$+++ 14810 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- this question?
04-1170b +++$+++ 14811 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- outweighed by mitigators.
04-1170b +++$+++ 14812 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Suppose the jurors are deadlocked, six to six, and you're not -- you don't know, maybe some are a little stronger there, but there's a deadlock. And what if the judge told them, "Well, in the event of a deadlock, you resolve it by flipping a coin." Would that be constitutional?
04-1170b +++$+++ 14813 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely not, because they're not making the decision that's required at the selection stage. And to follow up on something that General Kline said during his argument, that the provision is for a hung jury, there's no provision for a hung jury in the event the jury finds itself in equipoise. The only provision for a hung jury, under the Kansas statute, is if the jury is unable to reach a verdict. But equipoise, does not prevent a death verdict. In fact, the statute requires a death verdict if the jurors are in equipoise.
04-1170b +++$+++ 14814 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the verdict that the jury returns is a verdict of death. They do not return a verdict saying, "We're in equipoise," and then the death sentence is imposed by operation of law. The verdict imposed is, "We do not find -- we find these aggravating circumstances. We find they're not outweighed. And, therefore, we sentence the defendant to death."
04-1170b +++$+++ 14815 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, a determination of equipoise -- the jury has to find equipoise beyond a reasonable doubt, and that, necessarily, means that the aggravators are not outweighed my mitigators.
04-1170b +++$+++ 14816 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but --
04-1170b +++$+++ 14817 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's how this statute was interpreted by the Kansas Supreme Court.
04-1170b +++$+++ 14818 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but I think -- I think the Chief Justice's point is that you're -- you're really not being accurate when you say, "The jurors can thereby avoid the difficult choice." They don't avoid the difficult choice. They're fully aware, under this statutory scheme, that if they don't find that the mitigators outweigh, they are condemning this person to death. That's the moral choice they're faced with. And when they come in with that verdict, they know what they're doing. And I consider that a moral -- a moral judgment on their part.
04-1170b +++$+++ 14819 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the jury certainly knows that they are imposing a death sentence. But what this instruction and the prosecutorial arguments given in the cases tell them is that they can fulfill their responsibilities as jurors without coming to a final judgment about whether aggravators outweigh mitigators, or vice versa.
04-1170b +++$+++ 14820 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And you think that a juror who believes that this person shouldn't be -- shouldn't be sent to death -- that is to say, who believes that the mitigators outweigh the aggravators -- would join a jury verdict which produces the result that he's sentenced to death, right? I think that is so unlikely --
04-1170b +++$+++ 14821 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But in --
04-1170b +++$+++ 14822 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that he's going to say, "Well, I -- you know, I think he shouldn't go to death, but the aggravators and mitigators are absolutely evenly balanced, so I guess I've got to send him to death," I don't think any juror's going to do that.
04-1170b +++$+++ 14823 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the fact that this is a group decision leads to even a greater risk of abdication of --
04-1170b +++$+++ 14824 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It takes only one --
04-1170b +++$+++ 14825 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that decision.
04-1170b +++$+++ 14826 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It takes only one to disagree.
04-1170b +++$+++ 14827 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But it's a group decision, and jurors are encouraged and forced to compromise to come to a verdict. And in close cases, with jurors leaning slightly one way or another, they, being forced to come to a consensus, are even more likely to compromise on equipoise, rather than engage in the draining task of persuading each person leaning one way or the other to come together.
04-1170b +++$+++ 14828 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But regardless of the likelihood of that situation in any given case -- and I happen to agree with Justice Scalia; I mean, I don't think the likelihood of that in a given case is great -- we're, nonetheless, I think, faced with the fact that the Supreme Court of Kansas says, "That can happen."
04-1170b +++$+++ 14829 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely.
04-1170b +++$+++ 14830 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ "And if it does happen, the result is death." And I think we've --
04-1170b +++$+++ 14831 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
04-1170b +++$+++ 14832 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- we've got to take that as a given. I mean --
04-1170b +++$+++ 14833 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
04-1170b +++$+++ 14834 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- do you see any way out of it? I --
04-1170b +++$+++ 14835 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. This Court is bound by the Kansas Supreme Court's interpretation of the statute. And what's happening here is, when the jurors do settle on equipoise, in whatever way they settle on equipoise, the fact of the matter that -- is that in either of -- either of the two cases I've -- well, either in -- in three cases I've described, the jurors are following their instructions, and, in either of these situations, the defendant is being sentenced to death only as a death-eligible defendant, because that's the only constitutionally required decision that's actually been made by the jury in that situation. And to go back to Justice Breyer's hypothetical about the box from the last argument, the legislature has determined that the individuals will be separated out as a result of equipoise, but there is nothing about that situation, them being in that box, that separates them from any other generic death-eligible defendant. And that's the problem with this equipoise provision. And, yes, the Kansas Supreme Court found that it can happen. This Court is bound by that interpretation. The State concedes that. And, therefore --
04-1170b +++$+++ 14836 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You mentioned the --
04-1170b +++$+++ 14837 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The --
04-1170b +++$+++ 14838 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Kansas Legislature. Has there been any suggestion the statute ought to be amended to get rid of this silly little problem?
04-1170b +++$+++ 14839 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1170b +++$+++ 14840 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't mean to call it --
04-1170b +++$+++ 14841 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1170b +++$+++ 14842 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- silly little problem, but --
04-1170b +++$+++ 14843 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, and I think --
04-1170b +++$+++ 14844 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the very narrow --
04-1170b +++$+++ 14845 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the Legislature is going to take that up again. And there's simply no consequence to anyone else by affirming the Kansas Supreme Court's decision in this case. The Legislature is going to take the matter up again. There's no question about that.
04-1170b +++$+++ 14846 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Is there --
04-1170b +++$+++ 14847 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So, how is it --
04-1170b +++$+++ 14848 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- anything --
04-1170b +++$+++ 14849 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- how is it -- is there any question about how it's going to come out when they take it up again? [Laughter.]
04-1170b +++$+++ 14850 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I wouldn't want to speculate on that. There are going to be arguments on both sides, certainly.
04-1170b +++$+++ 14851 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What if they still conclude, as they did before, that when these aggravating factors are found, unless there is mitigation to overcome them, it is the judgment of the people of Kansas that this person is deserving of death? What if they come to that conclusion again? You want us to tell them, "No, the people of Kansas cannot come to that, what seems to me, quite rational decision"?
04-1170b +++$+++ 14852 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but there is no moral judgment, as has been stated here. There's no moral judgment. The State can -- the Legislature can determine that death is an appropriate sentence. The Legislature -- this Court upheld a legislative determination, when aggravators outweigh mitigators, in Blystone, that --
04-1170b +++$+++ 14853 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's so silly to say that Kansas can circumscribe the moral judgment of the -- of the jury by saying, "You can take into account 18 aggravators, or else only two aggravators." That is a -- you know, a significant control on their moral judgment. But then to say that Kansas cannot circumscribe their moral judgment to the very limited degree of saying, "Unless you find that the mitigators outweigh the aggravators, the proper response is the death penalty."
04-1170b +++$+++ 14854 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But you cannot divorce the weighing process enacted by the legislature from the individualized sentencing decision required under the Eighth Amendment at the selection stage. And the equipoise --
04-1170b +++$+++ 14855 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I --
04-1170b +++$+++ 14856 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- provision.
04-1170b +++$+++ 14857 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If I -- if I may interrupt you, I -- your point, I take it, is, the jurors have got to make this decision, not the Legislature of Kansas.
04-1170b +++$+++ 14858 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
04-1170b +++$+++ 14859 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
04-1170b +++$+++ 14860 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And if the Legislature --
04-1170b +++$+++ 14861 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But haven't the jurors made the decision that, "We have looked at all of the moral arguments that he has presented. Each of one of the -- of us has individually weighed them. Each one of us know that if we have any moral reason not to impose the death penalty, we can do it. And we make the moral judgment that we cannot make that determination."
04-1170b +++$+++ 14862 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the --
04-1170b +++$+++ 14863 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Moral judgment, from beginning to end.
04-1170b +++$+++ 14864 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This statute allows a third option of equipoise, which allows a jury to impose death without making that judgment.
04-1170b +++$+++ 14865 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay, well, what do you say to --
04-1170b +++$+++ 14866 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but that's -- your term is "equipoise." You say the jury has done nothing --
04-1170b +++$+++ 14867 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Kansas Supreme Court's --
04-1170b +++$+++ 14868 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- you say the jury has done nothing. What the jury has done is, it's weighed all the evidence with great care, and it's said that, "Beyond a reasonable doubt, the mitigating circumstances do not overcome." That is a moral judgment.
04-1170b +++$+++ 14869 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the --
04-1170b +++$+++ 14870 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And you label it "equipoise."
04-1170b +++$+++ 14871 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The other possibilities are that the jury has found that, "We can't decide whether aggravators outweigh mitigators, or vice versa. And the statute tells -- the instructions tell us to impose death."
04-1170b +++$+++ 14872 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I think Justice Kennedy is saying, when they make that determination, "We can't tell whether one outweighs the other," that they are making a moral judgment there. And what's your -- what's your answer to that?
04-1170b +++$+++ 14873 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is --
04-1170b +++$+++ 14874 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He's saying they are making a moral judgment.
04-1170b +++$+++ 14875 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is not a moral --
04-1170b +++$+++ 14876 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And they know what its consequence is.
04-1170b +++$+++ 14877 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is not a moral judgment, because it says nothing about the personal culpability --
04-1170b +++$+++ 14878 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In other words you're --
04-1170b +++$+++ 14879 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of the --
04-1170b +++$+++ 14880 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- saying moral --
04-1170b +++$+++ 14881 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- defendants.
04-1170b +++$+++ 14882 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- judgment has got to be an either/or judgment, not a "we can't figure it out" judgment.
04-1170b +++$+++ 14883 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely.
04-1170b +++$+++ 14884 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
04-1170b +++$+++ 14885 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the difficulty, I think, in the case is, it's artificial. I think it is. We're in an artificial situation, and we're imagining those 12 jurors saying they're in equipoise between mitigating and aggravating. We don't know. They -- even. All right. Now, you could look at this as saying, "You have to have a reason for thinking these people are -- this person is morally worse than the average." And then we imagine some fungible commodity, like moral badness units. And for every one we go up on the aggravating side, we go down on the mitigating side, so we're back to zero. And then, some people, like you, are looking at this and saying, "See, you're at zero. You went up, you went down, so they're no worse than the average." But other people can look at it and say, "We'll tell you about -- one thing about this individual. This is an individual who did do the aggravating things, and he has counterbalancing mitigating things, and that's good enough to separate him out, morally speaking, from somebody who doesn't. Now, my problem is, you either look at it the one way or you look at the other way, and you -- and I'm trying to find a reasoned -- if you -- can -- do you want to add anything?
04-1170b +++$+++ 14886 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I mean, the Kansas Supreme Court determined that equipoise can happen. And in the situations that I've described, there is a real risk under this statute that the jury can either become agnostic and just pick, and the statute requires them to pick death, or the jury, encouraged by prosecutorial arguments to abdicate the decision, do abdicate, simply cop out and impose death, because it allows them to avoid making the tough choice. And I think those are very real possibilities under this statute. The statute requires death in those situations, and it's the risk that this procedure poses that presents the problem. And this Court has always held that these kinds of risks of unconstitutional results are intolerable in capital cases. And we simply cannot look at a death sentence in Kansas and say, with any reliability at all, that this jury did not decree death by equipoise, that this jury made the reliable sentencing judgment required under the Eighth Amendment at the selection stage. We just can't say that under this statute.
04-1170b +++$+++ 14887 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You think that under this instruction, a Kansas juror could say, "You know, I'm not interested in deliberating more. I'm not going to participate"? That's what you're want -- that's what you want us to believe, right, based on this argument? I -- that's just -- any juror -- any jury can ignore its instructions. There's nothing I can do about that.
04-1170b +++$+++ 14888 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they're not --
04-1170b +++$+++ 14889 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Here, they are instructed to consider every mitigating circumstance that's presented and determine whether or not that should be a factor in their decision.
04-1170b +++$+++ 14890 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They're not -- they're not ignoring their instructions at all. They're following their instructions if they arrive at equipoise. And the instructions and the prosecutorial arguments tell them to impose death. The prosecutorial --
04-1170b +++$+++ 14891 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1170b +++$+++ 14892 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- arguments are --
04-1170b +++$+++ 14893 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but you're suggesting that they kind of --
04-1170b +++$+++ 14894 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- perfectly in line.
04-1170b +++$+++ 14895 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that they can tune out.
04-1170b +++$+++ 14896 +++$+++ TRUE +++$+++ MS. WOODMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not that they're tuning out. They take their jobs very seriously. But what they are encouraged to believe by the instructions and the prosecutorial arguments is that they will fulfill their responsibilities as jurors without coming to a final judgment on whether aggravators outweigh mitigators or vice versa. And it's the risk that they will do that, that makes this statute unconstitutional. And the Kansas Supreme Court determined that there is such a risk of equipoise under this statute that it cannot comply with the Eighth Amendment. Thank you.
04-1170b +++$+++ 14897 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Ms. Woodman. General Kline, you have 4 minutes remaining.
04-1170b +++$+++ 14899 +++$+++ FALSE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. First, referring to Justice Scalia's question as it relates to other States that are affected, in the joint appendix, pages 98 through 107, you have a summary, and, additionally, in the amici brief that was filed by several States, on page 23, it identifies Arizona, Florida, Nevada, North Carolina, Oklahoma, and Missouri as having similar provisions. And, additionally, the cases that have relied on Walton to determine that the equipoise issue has been resolved are the Eleventh Circuit, in Jones v. Dugger, the Arizona Supreme Court. And in State v. Gretzler, they found that the provision provided for equipoise, as well as in Idaho, in State v. Hoffman. As it relates to a juror somehow imposing death when they are undecided, I would direct you to page 26 of the joint appendix, at instruction number 9, which reads, "The Defendant is entitled to the individual opinion of each juror. Each of you must consider the evidence for the purpose of reaching a verdict. Each of you must decide the case for yourself." Furthermore, the jury is instructed, in instruction number 12 in the second paragraph on page 28 of the joint appendix, that, "In order to reach a verdict in the case, your decision must be unanimous. And then, after reasonable deliberation, if you are unable to reach a unanimous verdict, you shall notify the Court, and the result is a life sentence." Kansas law is very clear that death is only appropriate in the singular instance in which a jury has found beyond a reasonable doubt with unanimity that the defendant is guilty of capital murder, that an aggravating factor exists, and then that the mitigating factors do not outweigh the aggravating factors. It was in 1994 that the Kansas Legislature passed the death penalty in Kansas, a few years after the Walton decision. And I was there for the debate, as a legislator. It was a compelling moment, not just because of the result, but the solemnity and seriousness of the debate in which they were seeking to define, through their reasoned moral judgment, what justice demands in instances such as this. And recognizing this Court as the final arbiter of the meaning of the Eighth Amendment, you will see, through pages 23 through 28 of your appendix, your words mirrored back to you. The Legislature has respected your judgment and made the reasoned moral decision that death is appropriate in the instances --
04-1170b +++$+++ 14900 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Was there a particular --
04-1170b +++$+++ 14901 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that we are discussing.
04-1170b +++$+++ 14902 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- was there a reason why they provided that, in the case of equipoise, the sentence would be death? Or is that just a quirk of the way the provision was written?
04-1170b +++$+++ 14903 +++$+++ TRUE +++$+++ MR. KLINE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the debate, all of these decisions were discussed through committee as well as on the legislative floor. And the belief was, in these various aggravated and narrow circumstances, that the State believes death is appropriate. And if we followed the individualized sentencing line of these cases and allowed a jury to consider all of the mitigating evidence that is relevant, that the State could make that decision. Thank you, Mr. Chief Justice.
04-1170b +++$+++ 14904 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, General Kline. The case is submitted.
04-1186 +++$+++ 14909 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Wachovia Bank v. Schmidt. Mr. Frey.
04-1186 +++$+++ 14911 +++$+++ FALSE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The question in this case is whether, for purposes of Federal diversity jurisdiction, a national bank is a citizen of every State where it has a branch, or perhaps where it has any physical presence, or only a citizen of the State where it was chartered or, if different, where its main office is located. The question turns on the meaning of the word located in 28 U.S.C. 1348, which states that national banking associations shall be deemed citizens of the States in which they are respectively located. Now, before turning to the --
04-1186 +++$+++ 14912 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, that was enacted, was it not, in 1887?
04-1186 +++$+++ 14913 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. The law --
04-1186 +++$+++ 14914 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And hasn't the -- the word hasn't changed --
04-1186 +++$+++ 14915 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It hasn't changed.
04-1186 +++$+++ 14916 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in all those years. And there were no interstate branches in 1887, I assume.
04-1186 +++$+++ 14917 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm -- I'm not aware of any. There may have been a few State banks that had interstate branches, although they would have been citizens only of the State of their incorporation.
04-1186 +++$+++ 14918 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it's a little hard to look for congressional intent.
04-1186 +++$+++ 14919 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it -- it -- I don't believe it is, Your Honor, because of the sequence of statutes. You have to start with the 1882 statute and what the Supreme Court has said. But -- but I'd like to make a preliminary comment before I turn to the substantive points here, which is that nobody has ever suggested, not the Fourth Circuit and not the respondent, any reason why Congress would want the result reached by the Fourth Circuit, in -- in 1887 or in 1948 or any other relevant time, to uniquely restrict the access of national banks to Federal diversity jurisdiction. Indeed, the suggestion is incongruous that Congress would want to do that. National banks are, after all, federally created and federally regulated instrumentalities.
04-1186 +++$+++ 14920 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Congress makes mistakes sometimes.
04-1186 +++$+++ 14921 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, they -- they might have -- they might have done that. And I -- I acknowledge that this consideration is not controlling, standing by itself, on the case. That is, if the statute plainly and unambiguously called for such an implausible outcome, then we might have a debate about whether an absurd outcome that the plain language calls for is one that should be enforced. But this is a background consideration that I don't think the Court can put aside or deem irrelevant to the outcome of this case. So the key holding of the Fourth Circuit was that the word located has an unambiguous meaning, and it's -- that it's the one adopted by the Fourth Circuit majority and not by the Fourth Circuit dissent, the Fifth Circuit, the Seventh Circuit, the Comptroller of the Currency, or anybody else. The battle of the dictionary definition seems to me plainly inconclusive. The biggest problem with the definitions is that they are cast in terms of the location of tangible physical things, a table, a lake, a piece of land; whereas we're dealing here with an incorporeal abstraction, a corporation, the location of which is not necessarily tied to any particular physical presence. Both we and the Government have given Ford Motor Company as an example in the brief. If you ask somebody where is Ford Motor Company located, I venture to say that most people would say Michigan. But when you stop and think about it, it's possible that it could be also located every place where it has manufacturing facilities or sales outlets. The only dictionary definition that I've seen that is specific to the location of an incorporeal entity, and specifically a bank, is the one that's cited in the Chase -- JPMorgan Chase amicus brief, which was taken from the 1951 edition of Black's Law Dictionary, roughly contemporaneous with the enactment of current section 1348, which states that a bank is, quote, located, close quote, in the place specified in its organization certificate. The term also appears many places in the National Bank Act, sometimes meaning a specific headquarters location and sometimes meaning any place where there are physical facilities. And the Court -- this Court itself has given located -- the word located various meanings. In the Bougas case, which is much discussed in the briefs, the Court said that the term has no enduring rigidity, and the Court did not base its decision on the inherent or natural or ordinary meaning of the word located. In Federal Power Commission v. Texaco, which is 377 U.S. 33, the Court interpreted the words in the venue statute for appeals from Federal Power Commission decisions which said the appeal could be taken to the place where the company seeking review was located. Texaco said, well, we have substantial facilities in the Tenth Circuit. This matter that is the subject of this arose in the Tenth Circuit. And the Court looked at the statute and it said, no, located means where -- your place of incorporation. Now --
04-1186 +++$+++ 14922 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Counsel, a -- a national bank charter typically lists the national bank's principal place of business. Correct?
04-1186 +++$+++ 14923 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it lists --
04-1186 +++$+++ 14924 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Its main office.
04-1186 +++$+++ 14925 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- it lists the -- the charter location, where it's established. And until 1994, that would have been synonymous with its principal place of business.
04-1186 +++$+++ 14926 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But isn't that amended if the principal place of business changes? The charter is amended.
04-1186 +++$+++ 14927 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You can -- just like a corporation could reincorporate in another State, a bank could move its main office, which I think is the term that's used in 12 U.S.C., section 30.
04-1186 +++$+++ 14928 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So this would put national banks in a favored position compared to corporations --
04-1186 +++$+++ 14929 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
04-1186 +++$+++ 14930 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- which are citizens of their State of incorporation and their -- their principal place of business.
04-1186 +++$+++ 14931 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if there's -- I don't know whether there's a divergence between principal place of business and -- and main office, which is what the Comptroller, I think, considers the equivalent of the place of incorporation. It is possible. But remember, at the time all of these statutes were enacted, there would have been complete parity because principal place of business was not --
04-1186 +++$+++ 14932 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ My point is just --
04-1186 +++$+++ 14933 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ A corporation was not a citizen of -- of its principal place of business, only of its State of incorporation. So there would have been total parity in 1882, 1887, 1911, 1948.
04-1186 +++$+++ 14934 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ A good bit of your argument is that your friend's interpretation on the other side would put national banks in a disfavored position.
04-1186 +++$+++ 14935 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1186 +++$+++ 14936 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Your argument would put them in a favored position compared to a typical corporation.
04-1186 +++$+++ 14937 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, not necessarily. You could interpret located to include principal place of business. This issue doesn't arise in this case because what -- what you have to decide is whether the fact that the bank has a branch in South Carolina means they're located in South Carolina. South Carolina is not Wachovia's principal place of business or --
04-1186 +++$+++ 14938 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what would -- what would be your view? I know the question is not before us, but suppose we had a question like the principal place of business.
04-1186 +++$+++ 14939 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our -- our view is that it's the main office. I would defer somewhat to my colleague from the Government who can speak for the Comptroller on this question, but our view would be that it's the main office. And -- and I think it's important to understand that when we're interpreting these statutes, at every time when one of these -- when the statute was reenacted, there would have been total parity between our definition of located. There would have been one place for a national bank. There would have been one citizenship for a State bank.
04-1186 +++$+++ 14940 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Frey, in practice, is there, as there often is for a corporation, a divergence between those two places? You have many corporations incorporated in Delaware with their principal place of business, say, in Michigan. In the case of a national bank, is there that similar difference that what you call its main office or where it's chartered is different from where it has its principal place of business?
04-1186 +++$+++ 14941 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's possible that there would be for some banks, but the main office is the place that -- that the Comptroller that -- that is in their articles of association, which can be amended to change the main office, and it's approved by the Comptroller of the Currency. And -- and they can move their main office. Whether it -- all -- I know that in the case of Wachovia, there is no divergence. North Carolina is its main office and is its principal place of business. But I can't speak for everything.
04-1186 +++$+++ 14942 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You -- you would say that the main office is the place where they're established. Is that what you think the word established refers to?
04-1186 +++$+++ 14943 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I'm not sure what the word established means. That would be different. As the Court said in Bougas, it wasn't going there, and I don't know that we need to go there today. Established --
04-1186 +++$+++ 14944 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I -- I think we need to go there, at least -- it seems strange to me that you have two different words and if, indeed, established means the same thing that you're telling us located means, I'm not going to agree with you. I mean, they're -- they're two different words --
04-1186 +++$+++ 14945 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, established could, I suppose, mean the place of the original charter location, and located could mean the place where -- where the main office is today. They could mean different things. Remember that at every -- at every enactment of this statute, there was no difference between established and located. The terms had no different application because a national bank had only one location, which was the place where it was established. So as a practical matter, there was total parity with State banks because up until 1958 a corporation was a citizen only of the -- its place of incorporation, and there was total parity with national banks because they were -- they were confined to their original State. They could not branch outside their State until 1994. So we are interpreting statutes that were passed for the purpose of achieving parity and at a time when they succeeded in achieving parity. And -- and the Chief Justice's question and -- and your question suggest that today, with the changes in the map of interstate banking, you might have some small lack of total overlap between State banks or other corporations, on the one hand, and national banks. But that is not a reason to say that national banks are citizens of every place where they have any physical presence. And one of the problems with the Fourth Circuit's reading is that it injects substantial ambiguity into the question of where a bank is located. It's -- the Fourth Circuit said branches, but what about where it has an office that's not a branch? What about where it stores -- where it has warehouses that store its records? What about where it has employees?
04-1186 +++$+++ 14946 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or an ATM.
04-1186 +++$+++ 14947 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What about where it has an ATM.
04-1186 +++$+++ 14948 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, there I think the Fourth Circuit said we -- we had a case that resolved that.
04-1186 +++$+++ 14949 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Excuse me?
04-1186 +++$+++ 14950 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think the Fourth Circuit said that we had a case that -- that answered that question, not a case involving this particular provision --
04-1186 +++$+++ 14951 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't -- I don't recall.
04-1186 +++$+++ 14952 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- but a case involving another provision of -- of the banking laws.
04-1186 +++$+++ 14953 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't recall that. I don't recall that, but I think the -- I think the question is not at all clear where -- where a bank would be located if it's in a State where it has facilities, property, or employees but not a branch. And as you said in your concurring opinion in Sisson against Ruby, it's not a good idea to have a jurisdictional statute -- reading of a jurisdictional statute that creates ambiguities.
04-1186 +++$+++ 14954 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Frey, remind me of the State bank. A State bank is, for Federal diversity purposes, a citizen of two -- two places or only one?
04-1186 +++$+++ 14955 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It depends on how it does business. A State bank is a corporation and it is --
04-1186 +++$+++ 14956 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it would be the --
04-1186 +++$+++ 14957 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the same as any corporation.
04-1186 +++$+++ 14958 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- its place of incorporation and --
04-1186 +++$+++ 14959 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Same as any corporation.
04-1186 +++$+++ 14960 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- principal place of business if it's different.
04-1186 +++$+++ 14961 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So in 1958, under -- if -- if you follow the Chief Justice's question, in 1958 when it became possible for corporations to be citizens of more than one State, maybe the meaning of this statute that was passed in 1948 changed. I -- I don't think that makes sense. We're -- we're trying to interpret a statute that Congress passed in 1948. At that time, there was complete parity. The fact that in 1958 Congress perceived a problem which is not a problem with national banks, where there was a divergence, a serious divergence, between the place of incorporation and the principal place of business that Congress said we've got to deal with this problem. And so they amended section 1332 in 1958 to deal with that particular problem. That is not a problem that affects national banks. So there's been no occasion. When they enacted Riegle-Neal, there was no -- no need for them to change --
04-1186 +++$+++ 14962 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but you're -- you're asking us to interpret a statute that they passed in light of events subsequent to the passage of the statute.
04-1186 +++$+++ 14963 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
04-1186 +++$+++ 14964 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're saying that when they passed it, national banks were only in one place. Well, they were only located in one place --
04-1186 +++$+++ 14965 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true.
04-1186 +++$+++ 14966 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- even if you adopt the reading of the Fourth Circuit.
04-1186 +++$+++ 14967 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, let me -- let's -- let's go back and -- because Justice O'Connor started me off, and I -- I don't want to fail to get to her question. The first statute was the 1882 statute. The 1882 statute unambiguously stated that the jurisdiction shall be the same as and not other than the jurisdiction for suits by or against banks not organized under any law of the United States. So the -- the purpose of Congress was to -- to give national banks access to diversity jurisdiction on the same basis as State banks. And that -- in the Leather Manufacturers Bank case, that was recognized by the Court. Then in 1887, Congress went to a different wording totally. It injected the word location. And I -- I should point out that the 1882 statute was in the Bank Act and the 1887 statute was in the Judiciary Act. So it was -- it's not clear what they thought they were doing with the 1882 statute when they adopted the 1887 statute. But it is clear what this Court said they were doing in the Petri case. This Court said no reason is perceived why it should be held that Congress intended that national banks should not resort to Federal tribunals as other corporations and individual citizens might. It then said further on, on page 651 of 142 U.S., the clause was intended to have and must receive the same effect and operation as that of the proviso to the fourth section of the act of July 12, 1882. And finally, they close by saying, no limitation in the regard of access to Federal diversity jurisdiction was intended. Then we have the 1911 codification, and in -- and after 1911, we have several Supreme Court cases, including the Mitchell case, which again says that the codification worked no change. It says, the Court held that as to suits with -- within the specified exceptions, national banks were, by the acts of 1882 and 1887, put on the same basis in respect of jurisdiction as if they had not been organized under an act of Congress. And then in 1948, you have the reenactment or the codification of the current judicial code, not intended to work any change in the meaning of the statute.
04-1186 +++$+++ 14968 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you think a lawyer has to go back, in order to advise a client, and -- and when he has a word -- two words in -- in a provision -- one, established; the other, located -- he has to go back and figure out every one of these reenactments and inquire into, you know, what Congress meant at the time?
04-1186 +++$+++ 14969 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think it's so difficult to --
04-1186 +++$+++ 14970 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He -- he has -- he has a statute that says established in one part, located in another, and he has a Supreme Court case, which I mentioned, but you apparently disregard, which is Bougas, which --
04-1186 +++$+++ 14971 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't disregard it.
04-1186 +++$+++ 14972 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, which -- when I asked about it, you -- you drew a blank. I mean, that's the case I was referring to. And in -- which had a similar provision using the word established and located and said that established meant one thing and said what in this case it meant. Now, it was for a different purpose, to be sure, but if I were a lawyer looking up -- and it -- you know, it dealt with banks. And if -- if I were a -- a lawyer, I would have -- I would have said, gee, there it is. The Supreme Court --
04-1186 +++$+++ 14973 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1186 +++$+++ 14974 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- says where you have established and located in -- in the same provision, located means where they have a branch.
04-1186 +++$+++ 14975 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it didn't say that established meant something different. It said it would not consider what established meant. And in deciding what located meant, it didn't say located had some obvious meaning. It said it was going to look at the purpose, and the purpose was the convenience of the bank. And what -- what the Court did in Bougas was to place national banks in a position of parity with State banks with regard to venue. State banks could be sued anyplace they had a branch, and under Bougas, national banks could be sued.
04-1186 +++$+++ 14976 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That may well be.
04-1186 +++$+++ 14977 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What the Fourth Circuit has done is destroy --
04-1186 +++$+++ 14978 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and whatever -- whatever the outcome, whether it was equality or non-equality, and whatever the rationale, whether it was the purpose to be served or something else, the Court held that the word located in a banking statute which had both the words established and located in it --
04-1186 +++$+++ 14979 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
04-1186 +++$+++ 14980 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- meant where they have a branch. And -- and that seems to me a very persuasive indication for a lawyer --
04-1186 +++$+++ 14981 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think --
04-1186 +++$+++ 14982 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- who's trying to figure out how to advise his client.
04-1186 +++$+++ 14983 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In a venue statute, as opposed to a subject matter jurisdiction statute, the venue means where, where -- what particular court. Subject matter jurisdiction is which court system. They're entirely geared to entirely different things.
04-1186 +++$+++ 14984 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Entirely different things and entirely different concerns. And I don't think -- well, I'd like to think that most lawyers would go beyond the logic that Your Honor has suggested, would look at what the Supreme Court had said in its cases interpreting section 1348 and its predecessors, and would look at the mode of analysis that the Supreme Court used in Bougas, and applying that mode of analysis, the Fourth Circuit result is wrong. I'd like to reserve the balance of my time.
04-1186 +++$+++ 14985 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. Mr. Srinivasan, we'll hear now from you.
04-1186 +++$+++ 14987 +++$+++ FALSE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: For purposes of determining its State citizenship under 28 U.S.C. 1348, a national banking association is located in the State in which its main office is found, not every State in which it may maintain a branch office or other form of physical presence.
04-1186 +++$+++ 14988 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about its principal place of business if it's different from its main office?
04-1186 +++$+++ 14989 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
04-1186 +++$+++ 14990 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Principal place of business.
04-1186 +++$+++ 14991 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We -- we don't think that a national banking association is a citizen of a State in which its principal place of business is found, insofar as that might be different from the State in which its main office is located.
04-1186 +++$+++ 14992 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So the main office is it, like 1332 before the '58 amendment.
04-1186 +++$+++ 14993 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Justice Ginsburg, and in part, that's because of the historical chronology. The word located was first used in 1887 and the current version of section 1348 was enacted in 1948, which was 10 years before the concept of principal place of business had any jurisdictional salience. That was the first time that Congress -- this was in 1958 -- that Congress enacted a specific provision dealing with corporate citizenship, and that's the first time that we see the concept of principal place of business having relevance in the jurisdictional context.
04-1186 +++$+++ 14994 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What did the Government argue in Bougas? I -- I didn't look up the briefs in the case. Did the Government appear in -- in that case?
04-1186 +++$+++ 14995 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. But -- but Bougas I think is -- shouldn't govern the resolution of this case for several reasons, and one that I think is salient with respect to the points that you were raising earlier, Justice Scalia, is that it really is a happenstance of codification that the terms, established and located, appear together in section 1348. The paragraph that contained established and the paragraph that contained located were enacted in separate years. They concerned separate subjects, and they were always treated as separate provisions until the recodification of the judicial code in 1911. And that recodification stated in its explicit text that the provisions were -- were to continue to carry the substantive meaning that they had beforehand and that the arrangement of the provisions were purely -- was purely for convenience. And so I don't think it's fair to say that because established and located happen to appear in the same provision of section 1348 that they necessarily should be given different meanings.
04-1186 +++$+++ 14996 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In Bougas, they were there to -- they were put in originally in the original drafting. They were paired, right?
04-1186 +++$+++ 14997 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Just about, Justice Souter. I -- the -- the paragraph containing established was in there in the 1863 National Banking Law, and -- and the provision containing located was added to that provision in 1864. So the first time that they both appeared, they did appear together, which is another distinction from the circumstance that the Court faces with respect to 1348.
04-1186 +++$+++ 14998 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Could I -- could I get your position again on exactly 1348? You say main office is where the bank is located?
04-1186 +++$+++ 14999 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
04-1186 +++$+++ 15000 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about if that's different from the national bank charter?
04-1186 +++$+++ 15001 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would still be the main office. The -- the national bank charter -- I think it's called the organization certificate under the terms of the statute -- is a historic document that documents where the national bank's initial main office was located. But, of course, a national bank can relocate its main office under 12 U.S.C. 30. And we think that when a national bank relocates its main office, it's the current main office that's controlling.
04-1186 +++$+++ 15002 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Even if its charter says something else.
04-1186 +++$+++ 15003 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Even if its charter says something else.
04-1186 +++$+++ 15004 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because I gather you don't have to amend your charter.
04-1186 +++$+++ 15005 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You don't. In fact -- in fact, there's no provision for amending the charter. What you have to do is amend your articles of association if you move the main office -- if you move the main office outside the city or town in which the main office previously was found.
04-1186 +++$+++ 15006 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How -- how do you tell where a bank's main office is?
04-1186 +++$+++ 15007 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, as I was saying, you'd have to amend the articles of association if you move to a different city. So you could look at the articles of association, and those are on file with the Comptroller. So I think where a national bank's main office is located is readily identifiable and it's publicly available information.
04-1186 +++$+++ 15008 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So its main office would be -- be where its articles of incorporation say, even if it has 90 percent of its branches in another State?
04-1186 +++$+++ 15009 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. It's -- it's -- the main office is -- is controlled by where the national bank designates its main office to be. Now, it's a little bit different than corporations in the following sense, that with the main office of a national bank, it at least has to be a place where the bank is conducting the business of banking. That's required by the statutes. Whereas with a corporation, you could conceivably have a situation where they were incorporated in one State --
04-1186 +++$+++ 15010 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you can have these banks -- I don't know -- presumably a State that they bear little or no relation to could offer some favorable treatment of them and they could suddenly say, you know, Wachovia's main office is in Wyoming or something, even though it doesn't -- it has one -- it has one ATM or one branch there. And that would be all right with you? That would be where -- where they were located?
04-1186 +++$+++ 15011 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, for --
04-1186 +++$+++ 15012 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That would be the only place that they were located.
04-1186 +++$+++ 15013 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For purposes of this provision. There -- there are other provisions where the word located encompasses branch locations, but for purposes of this provision, we think location is synonymous with main office. And I would say that the court of appeals assumed in its opinion, by the way -- and this is at pages 8a and 11a of the -- of the petition appendix -- that it's rarely going to be the case that a national bank's main office will -- will deviate from the national bank's principal place of business.
04-1186 +++$+++ 15014 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If a national bank changes its main office, it must get the approval of the Comptroller to do so?
04-1186 +++$+++ 15015 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- in -- in some circumstances, yes. If it changes its main office --
04-1186 +++$+++ 15016 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What sort of circumstance?
04-1186 +++$+++ 15017 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the same city --
04-1186 +++$+++ 15018 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does it say -- just to take the Chief Justice's example, say they decided they want to open a branch in -- just a -- just a one-window branch in Wyoming and make that the main office. Would there have been any reason why they couldn't do it?
04-1186 +++$+++ 15019 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, because it's a -- it's simply a product of where the --
04-1186 +++$+++ 15020 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So in other words, the -- the Comptroller would automatically approve such a change.
04-1186 +++$+++ 15021 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I think so. I don't -- I'm not aware of any criterion by which -- substantive criterion by which the Comptroller limits where a national banking association could designate its main office to be.
04-1186 +++$+++ 15022 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does the term, main office, have any significance for -- for any purpose other than this jurisdictional issue in this case?
04-1186 +++$+++ 15023 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. It -- it has significance in a number of provisions. For example, it determines where the bank is located with respect to what interest rates it might charge under 12 U.S.C. 85, and that's an issue that this Court confronted a few terms ago in the Smiley case and also in the Marquette case. But there are other provisions that refer to the -- the location of a national banking association, and in all of those we think, as a starting point, the location would be the main office, and in some situations, it would also encompass branch locations. For purposes of this provision, we don't think that the location would encompass branch locations. And one reason, in particular, is because the subject that section 1348 deals with is the State citizenship of a national banking association. And the concept of citizenship has always been thought to require a distinctive association with a State and, in particular, has been thought to require something more than mere physical presence in a State. That's always been the rule with respect to national persons, and of particular significance, it's always been a rule with respect -- it's always been the rule with respect to corporations. And Congress defined national banking associations as, quote, a body corporate, close quote, in 12 U.S.C. 24.
04-1186 +++$+++ 15024 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask you another question that is really a follow-up on the Chief Justice's earlier -- for a private corporation, it's located both where it's incorporated and where it has its principal place of business. Is it your view that a national bank may have two parallel locations or just one?
04-1186 +++$+++ 15025 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it could have a main office that's different from what one would construe to be its principal place of business under the test that applies to corporations under 1332(c), if -- if that's what you're asking, so that factual circumstances --
04-1186 +++$+++ 15026 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It could -- it could have a -- it could be a citizen of the State where its -- its papers say its main office is and also the State where, in fact, its main office is.
04-1186 +++$+++ 15027 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Well, I -- well, I don't -- in fact, its main office is -- is a creature of statutory designation, but I think what --
04-1186 +++$+++ 15028 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I should use a different word. Where its principal place of business --
04-1186 +++$+++ 15029 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Principal place of business.
04-1186 +++$+++ 15030 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- they have a big operation in New York and a -- and a Delaware headquarters in -- in Dover.
04-1186 +++$+++ 15031 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Our view is that it wouldn't be a citizen of a State simply by virtue of the fact that it has its principal place of business there. Now, I would say, though, that it's not an open and shut case because the Court in a case that specifically raised the issue, which of course this one doesn't, it could construe 1332(c), which is the provision that deals with corporations generally, as also applying to national banking associations insofar as national banking associations are, after all, corporations. But we think the better reading is that the specific governs the general, and therefore, that section 1348, which specifically deals with the question of national bank citizenship, would govern over the 1332(c) which more generally deals with the question of corporate citizenship.
04-1186 +++$+++ 15032 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What --
04-1186 +++$+++ 15033 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if we did -- if we did interpret 1332(c) that way, there wouldn't be any favoritism for national banks.
04-1186 +++$+++ 15034 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. It would entirely eliminate favoritism. But I think it's important to note that the type of favoritism that we're discussing is the potential inequity as between one State and two States; whereas under the court of appeals' interpretation of section 1348, you could have an inequity that -- and it's not farfetched to think -- that would encompass 50 States in the case of a national banking association and one or two States in the case of a State corporation. And so we're --
04-1186 +++$+++ 15035 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what do you mean that national banking associations are, after all, corporations? I thought they were distinct entities from corporations.
04-1186 +++$+++ 15036 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. They're -- they're not State chartered corporations. They're federally chartered corporations, but they are corporate in the -- as -- as distinguished from other sort of forms that an entity, an incorporeal entity, may take. And Congress specifically provided that in 12 U.S.C. 24 --
04-1186 +++$+++ 15037 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You mean --
04-1186 +++$+++ 15038 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- when it defined them as, quote, a body corporate, close quote. So I think it makes sense to apply the normal rules that we apply to corporate citizenship.
04-1186 +++$+++ 15039 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They're not incorporated -- they're not incorporated under the laws of any State, though.
04-1186 +++$+++ 15040 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They're not incorporated under the laws of any State, but they're incorporated under -- under the National Bank Act. They're federally chartered corporations like other federally chartered corporations. And so in that sense, we think it makes sense to apply the normal rules that apply to corporate citizenship to national banks.
04-1186 +++$+++ 15041 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- I'm sorry. Maybe this is something everybody knows but me. But I would have thought that a national association is distinct from a corporation in a way, for example, that a partnership is distinct from a corporation. And I wouldn't have assumed that the laws with respect to corporations automatically applied to national banking associations. But you say they do?
04-1186 +++$+++ 15042 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If I could just -- just briefly.
04-1186 +++$+++ 15043 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1186 +++$+++ 15044 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think what I'm trying to say is that federally -- national banks are federally chartered corporations and they share the salient characteristics of a corporation, i.e., there's limited liability for shareholders -- and that's at 12 U.S.C. 64(a) -- and they have a perpetual existence in the same way that corporations do, and that's at 12 U.S.C. 24.
04-1186 +++$+++ 15045 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you did say 1332(c) does not apply to the national bank. It's only one location.
04-1186 +++$+++ 15046 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that's our view, but again, I'm -- I wouldn't characterize it an -- as an open and shut case because 1332(c) refers generally to corporations, and so one could reach the conclusion that 1332's reference to principal place of business should also apply to national banks.
04-1186 +++$+++ 15047 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. Mr. Gilreath.
04-1186 +++$+++ 15049 +++$+++ FALSE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Mr. Chief Justice, I want to follow up on a point you -- you were on about this thing about an association. Before I do that, I want -- I want to say so I'll be sure I don't forget it. Wachovia, according to -- I think we've got it in our papers that we filed in opposition to the petition -- has 179 branches in South Carolina. But it -- but it is important, as -- as you pointed out, Mr. Chief Justice, that a national bank is not a corporation, but it is a association formed under Federal law. So there's no State to which this Court can look or anybody can look to determine what their citizenship is. In fact, in the Langdeau case, they said it was a quasi-public institution, national in character. So it's not a -- it's not a State corporation. It's got no ties to a State corporation. So if it's going to have citizenship for diversity purposes, Congress has got to say how we going to figure that out. And that's what they did in 1448. This Court, in a series of cases back in the mid-'80's, was faced with the -- with the issue of how do you determine the citizenship of a corporation, and it went back and forth but finally came down with a doctrine that said a corporation will be deemed a citizen of the State in which it is incorporated. And then in 1958, Congress enacted 1332 and added the additional clause of principal place of business. Now, given that it is a national association and it's not a State corporation, it was necessary for Congress to legislate and enact a statute so we could determine how it would have diversity. And that's what they did in 28-1448. And going to the question Justice Scalia asked, do we have to go back and look at all of this statutory history -- and you can believe I've been looking at it a lot more than I'd like to have lately. It kind of ruined my holiday. (Laughter.)
04-1186 +++$+++ 15050 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I think I understand it. And my answer to your question is that you do not. When Congress enacts a statute that says you are deemed to be a citizen of a State -- let me be sure I read it right here -- deemed to be a citizen of the State in which you're respectively located, I don't know how Congress can speak much clearer.
04-1186 +++$+++ 15051 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me -- let me raise the reality check question. If -- if we assume that that is not the only possible reading of that statute, why in the world would Congress have wanted to impose the -- the system that follows from -- from your result in which the -- the national banks are -- are excluded from diversity jurisdiction to a degree that the State banks clearly are not?
04-1186 +++$+++ 15052 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think, when Congress enacted section 1448, that they even knew about branch banking. The -- the -- that -- that is something that has evolved really since 1994 when the Neal-Riegle Act was enacted. So the statute says --
04-1186 +++$+++ 15053 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the -- I guess the problem is if -- if we start with the assumption that I made a second ago that your reading is not a necessity -- it's a possible reading. No question about it. But if -- if we assume that it's not an absolute necessity, we -- we try to avoid freakish results, and this seems like a freakish result. And I take it your answer is it may be a freakish result. We're not claiming that Congress intended it. But that still leaves us, I think, with the problem of a -- a reading which is not absolutely necessary that does produce a freakish result. And if that's the case, why shouldn't you lose?
04-1186 +++$+++ 15054 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that assumes that you want to give the -- the -- I'm not suggesting that you -- you want to do this, but that -- that a court would want to give the national banks what I say is a free ticket to the Federal courts, to the --
04-1186 +++$+++ 15055 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. The question is why would Congress -- let's assume we have a choice between two readings. Why would Congress want to give the State courts -- the State banks -- State banks -- greater access to Federal courts than it gives national banks? What earthly reason would there be for Congress wanting to do that?
04-1186 +++$+++ 15056 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I can't -- I can't give you a reason for that. I -- I would suggest that they -- they don't want to give greater access one way or the other, but they've got to write a statute. And when they wrote the statute, nobody had in mind what the branch banking system was going to be today. And so now what this Court is faced with is they are looking at a statute that, when you read it literally, says that they ought to be deemed to be a citizen of South Carolina if they have a branch in South Carolina.
04-1186 +++$+++ 15057 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it -- it says located. I mean, do you -- what about an ATM? Does an ATM make them -- that's all they've got in Wyoming. Does that make them located in Wyoming?
04-1186 +++$+++ 15058 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's a good question. I -- I think you could argue either way. I -- I would say they probably are located there because if --
04-1186 +++$+++ 15059 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what about if we go back to 1880 or whatever and they had a messenger? You know, they only had one office, but they had depositors in different States, and this messenger went from State to State handing out the cash and collecting a fee. Would Congress at that time have considered that bank to be located in all the States where the messenger showed up?
04-1186 +++$+++ 15060 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm -- I'm not sure that even I could say that located goes quite that far. I'm not even sure that back then the -- the statutes would have allowed them to have had a messenger, but assuming it --
04-1186 +++$+++ 15061 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Couldn't have a messenger? He just delivered some mail. The post office was slow.
04-1186 +++$+++ 15062 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You make a good point. I can't -- I can't argue too much --
04-1186 +++$+++ 15063 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The Pony Express.
04-1186 +++$+++ 15064 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- with that point.
04-1186 +++$+++ 15065 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You can have private delivery of mail. Can you? Well, that's a -- but what -- what even more -- what about a -- a warehouse? I mean, it's where they keep the -- the money bags or whatever. (Laughter.)
04-1186 +++$+++ 15066 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's all that's -- that's all that's -- and that's all that's in the State. Are they located in that State?
04-1186 +++$+++ 15067 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They've got a presence there and they're doing business there. I think they would be deemed located there.
04-1186 +++$+++ 15068 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you -- call your attention to another word in the statute that seems persuasive to me? It's the word respectively. The statute says all national banking associations shall be, for the purposes of all other actions by or against them, be deemed citizens of the State in which they are respectively located, which I would read as saying in which each of them is located. Isn't that --
04-1186 +++$+++ 15069 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that's the way I read it, and we -- we discussed that in our brief, that -- that word. We -- we said more so that it doesn't take away from the position that we've got, but I -- I agree with what you're saying. It could be each State. And -- and the statute also says States, in the plural, in which they're located.
04-1186 +++$+++ 15070 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They're talking about a plural banking associations, not just plural branches of one association. And it's in which each -- in which they are respectively located, which strikes me as saying in -- in which each of those national banking association is located, which seems to me to read as though there's only one location for each bank.
04-1186 +++$+++ 15071 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that -- that would be true if it said the State in which they are -- in which they are respectively located, but it does say of the States.
04-1186 +++$+++ 15072 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's what it does say: the States in which they are respectively located.
04-1186 +++$+++ 15073 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, so each one could be in many States. No?
04-1186 +++$+++ 15074 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I read it, because it says States, that it's referring to more than one State in which they could be located.
04-1186 +++$+++ 15075 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And of course, it refers to more than one State because it referred to even more than one national bank association. It's a plural associations, and then it says, each of them shall be deemed a citizen of the State in which -- it says in the plural -- in which they are respectively located.
04-1186 +++$+++ 15076 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think what -- what we said in our brief was that the word respectively is -- is in there so that you are not talking about all the banks, but talking about each bank.
04-1186 +++$+++ 15077 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Correct. That's exactly right.
04-1186 +++$+++ 15078 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If I could move on. There are many different business entities that anybody can elect to -- to do business under. As I think the Chief Justice raised earlier, a limited partnership, for instance, is deemed to have the citizenship of all of its various partners.
04-1186 +++$+++ 15079 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But not with every State with which it has a close nexus.
04-1186 +++$+++ 15080 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-1186 +++$+++ 15081 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, in other words, the partnership -- we have a corporation where it's incorporated and Congress said a principal place of business. We have a partnership where each partner is located. I don't know of any instance where for subject matter jurisdiction, that is, which court system you go to, as distinguished from personal jurisdiction or venue, you have a notion that someone is a citizen of every place where it does the business. Is there -- is there any other example? It's certainly not true of a partnership. It isn't true of -- of a corporation. Is there any other entity that would, for subject matter jurisdiction purposes --
04-1186 +++$+++ 15082 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know of any. It's the -- it's the same for a limited liability company as it is for a partnership I believe, that you have to -- you have to look through it.
04-1186 +++$+++ 15083 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Its members.
04-1186 +++$+++ 15084 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the point -- the point I was making is that it -- it doesn't necessarily have to be the same rule that it is for a corporation, and -- and that -- that's what this Court decided in the Carden case.
04-1186 +++$+++ 15085 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but the question that I asked you is, in the realm of subject matter jurisdiction, that is, which court system, Federal or State, as distinguished from where can I grab this person for personal jurisdiction purposes, what are my venue choices, is there any other example in all of title 28 where, for subject matter jurisdiction purposes, this -- every place where it's located counts?
04-1186 +++$+++ 15086 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not -- not that I know of.
04-1186 +++$+++ 15087 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do we owe any degree of deference to the Comptroller's interpretation of the provision?
04-1186 +++$+++ 15088 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There -- there is some authority that I think is cited in their brief or somebody's brief that the Court should give deference to -- to their interpretations. But this Court is not bound by their interpretations. If -- if this Court concludes that their interpretation is -- is clearly incorrect, then it's not -- it's not bound by it.
04-1186 +++$+++ 15089 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is not a matter of -- of -- over which the Comptroller has administrative responsibility, is it? I mean, this is just a matter for the courts as to what court these associations can be -- can be sued in. And I don't see how the Comptroller has any business in that area.
04-1186 +++$+++ 15090 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1186 +++$+++ 15091 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, I -- I guess he deals with these associations all the time, so we should -- we should listen to him, but -- but he -- he is not authoritative as to -- as to who comes into court, is he?
04-1186 +++$+++ 15092 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I would agree. In fact, Congress has the final say-so, and then this Court has got to look at what Congress says to interpret it. And Congress said, I say very simply, that they're deemed a citizen of any State wherever they are located.
04-1186 +++$+++ 15093 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you do with their -- their hypothetical in both your friend's brief and the Government's brief about Ford Motor Company, not in terms of 1332 but common parlance? If you ask somebody where Ford Motor is located, they're likely to respond by saying, well, what do you mean? Do you mean their headquarters? Do you mean the -- the plant down the street? Do you mean the dealership? It does suggest that located doesn't have the clear meaning that you rely on.
04-1186 +++$+++ 15094 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You -- you can make that argument, but it -- it depends on, like you say, what -- what do you mean when you ask that question. If you're going out to buy a Ford car, then you obviously would want to know where it's located other than in Michigan. You'd want to know where the nearest Ford dealership is. Located, obviously, can have several meanings, but that's one of the points, I think, that Judge Luttig made in his opinion, is you've got to look at it in the context in which it is said in the statute. And looking at the statute, in the context in which the word located is there, it says where -- in -- in the States where it's located. Now, there are other places in the statute, which I'm sure they will argue or have argued in their brief, that -- that say, you know, it's located, when they're talking about a bank -- a branch bank where you can do insurance or whatever, that it can -- it can sell insurance in any branch where -- where it's located, and that means another meaning to locate. But you've got to look at locate in the context in which it's used, and --
04-1186 +++$+++ 15095 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the -- the argument here is -- is in the context of deciding which citizen an entity is a citizen -- which State an entity is a citizen of, we normally don't think that entities are citizens of multiple States. Just as you wouldn't think if -- if you're asking, you know, where does the Ford Motor Company manage its -- its operations from, you wouldn't think from multiple States. So here when you're talking about citizenship, why doesn't this argument of context cut precisely against you? We're talking about citizenship. People aren't citizens of -- of 50 States. I mean, that -- that's an extraordinary result to reach.
04-1186 +++$+++ 15096 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I agree. A citizen is a citizen.
04-1186 +++$+++ 15097 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So we should be looking for one State or maybe two States at most.
04-1186 +++$+++ 15098 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we -- I -- I contend -- I can understand why you say that, but if you read the -- the statute the way it's worded and you -- and you look at what's going on out there, I don't see any problem with this Court construing that they are a citizen of a State like South Carolina where they've got 179 branches. The -- according to the brief by, I think, the ABA or one of the amicus, they've got something like 3,600 branches. Now, they come into South Carolina, they're taking -- if I bank with them, they're taking my money and the -- and the money of other millions of South Carolinians and -- who -- who are entrusting their money to them, as opposed to entrust it to a State court, and if I'm banking with them, I've got to go sue them in -- in Federal court. Whereas, if I'm banking with a --
04-1186 +++$+++ 15099 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In South Carolina. It's not -- it's not as though you're being sent to some other place. The only question is whether they would have access to the Federal court. But as far as personal jurisdiction is concerned, you have it in South Carolina.
04-1186 +++$+++ 15100 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I think if -- if we -- if this Court adopts the position the petitioner wants, they would be deemed a -- a citizen of North Carolina, not South Carolina. And if I had -- if I got into a controversy with them about something in my account, I would have to go file court -- file suit in a Federal court to bring them to South Carolina where I would be drawing a jury from 8 or 10 counties as opposed if they were a State bank or --
04-1186 +++$+++ 15101 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it would still be in South Carolina.
04-1186 +++$+++ 15102 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would still be in South Carolina.
04-1186 +++$+++ 15103 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the same would be true if you were dealing with a State bank incorporated in North Carolina with its principal place of business in Virginia that had 50 branches in South Carolina. The same thing --
04-1186 +++$+++ 15104 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- that's true.
04-1186 +++$+++ 15105 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- would still be true.
04-1186 +++$+++ 15106 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's exactly true.
04-1186 +++$+++ 15107 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that's the parity that Congress has -- that has been the guiding principle of Congress' enactments in this area since 1882.
04-1186 +++$+++ 15108 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't -- I don't know whether I necessarily agree with that or with this parity argument that they've got. I wanted -- I want to address that just briefly, if I could, is the parity argument -- and -- and all of this parity argument they get they get from -- from these 1882, 1885, 1887 statutes. All of those statutes have been repealed. The parity argument is gone. If -- if Congress had wanted parity, then where is parity in section 1448? It's not there. It was there in 1882, 1885 and '87, but those statutes have been repealed. Parity is not some doctrine or something in the Constitution. So I think --
04-1186 +++$+++ 15109 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I go -- may I go back to the textual argument that Justice Scalia was suggesting a little while ago? If we presume that normally a citizen is a citizen of only one place -- there are multiple -- there are other situations where you have a dual citizen -- and that you would normally assume they're only a citizen in one place, then Congress, in order to solve the problem of corporate headquarters in the private commercial world, corporate headquarters, a main piece of business, went out of its way to say corporations shall be deemed to be a citizen of two places -- they made a special statute when they could be a citizen of two places, which overcomes the presumption that it's a citizen of only one place. But there's nothing to overcome the presumption that in 1348 they're assuming each citizen has only one place of citizenship because that statute just used the word respectively. It talks about many banks but in -- respectively citizens of -- of different States. But I think that's fully consistent with the notion, sort of the basic background notion, that one person has one -- one citizenship; one corporation has only one place of citizenship.
04-1186 +++$+++ 15110 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I can't -- I can't argue with the logic that you've got. But I -- I still come back to the language of the statute.
04-1186 +++$+++ 15111 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, this -- I'm -- I'm relying strictly on the statutory language in making this argument.
04-1186 +++$+++ 15112 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Are you talking about 1448?
04-1186 +++$+++ 15113 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, because it doesn't say anything about anybody being a -- capable of being a citizen of two different places, whereas 1332 does, which is the unusual situation.
04-1186 +++$+++ 15114 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree, but it says they shall be deemed citizens of the States in which they are respectively located.
04-1186 +++$+++ 15115 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Respectively.
04-1186 +++$+++ 15116 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The statute says State -- says citizens, which to me says the statute is allowing you to find that they can be a citizen of more than one State.
04-1186 +++$+++ 15117 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ See, but it's clearly unusual to say you can be a citizen of two places. And to do that, you had a special statute in 1332. To say you can be a citizen of 40 or 50 States simultaneously, there really is no precedent for that.
04-1186 +++$+++ 15118 +++$+++ TRUE +++$+++ MR. GILREATH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I can't argue with you, but I -- I still come back, you know, to the statute. I -- I think -- I think the real problem here is that you've got a statute that was enacted in 1948 that really, if you go back and look, it goes back to 1911. And obviously, in 1911, nobody knew the proliferation of branch banking that was going to take place. Nobody knew the proliferation of branch banking that was going to take place in -- in 1948 when it was enacted. And I think the real decision that this Court has got to make is whether you -- you read the statute and apply it or either whether you're going to leave it to Congress to -- to make that change. I'm not -- and -- and you may -- you may apply it the way I'm arguing, and I hope you do. And it may be -- and -- and if you do, then the national banking associations, with all the clout they've got, can go over here across the street to Congress and they can get it changed. And you can bet they probably will be trying. But I think the real question is -- is are you going to read the statute for what it says or are you going to, you know, give it the reading they want by going back in all this history and twisting and turning to get to the point they want to get to. They even -- I think this is one point I want to make is if you look at their brief, right at the last page of their brief -- and I think this highlights the -- the problem that you've got is they say you don't need to go so far as to determine two places. They just want you to determine one place. And I think that highlights the fact of how far they're trying to stretch the rubber band on this word to -- to get the -- get the meaning that they want. They -- they say that ought to be left for another day. And so I come back that the -- the ordinary meaning of the word located should -- should put it in each State. The -- I -- I think this -- I come back and I think the statute is unambiguous. And that leads me to the -- the Bougas case, which was talked about a little bit. It's not very often that you have a statute where this Court has already ruled, as it did in Bougas some 28 years ago, a -- a virtually identical statute dealing with the banking laws. They -- they try to say, well, the in pari materia doctrine ought not to apply, but I mean, you've got a statute there that's a -- a banking statute, admittedly dealing with venue, where this Court found the same meaning that we would like for it to find here. The courts -- and -- and their argument about established and located completely goes away because the Court said whatever the reason behind the distinction in those two words, it does exist and we recognize it. And -- and even if you say, well, in pari materia doesn't apply -- and that's what they argue. Judge Luttig said, well, it -- it's -- still there's some authority that similar statutes should apply. And here, we have a decision that's construing an almost identical statute. It reaches the conclusion that -- that we would like. In summary, kind of the way I look at it it's kind of like in 1948 the Congress tailored a citizenship suit of clothes for national banks, and -- and that suit of clothes, a pattern of which was laid out even back into the -- the 19th century, still fits the bill today. It's old. It's a 57-year-old suit of clothes, and -- but it still -- it can still work. It may not work the way the banks want it to work, but it will work. And if the banks want to get a new suit of clothes for jurisdiction, then they need to go over across the street here to Congress and let it make that enactment. If you have no further questions, that concludes my argument.
04-1186 +++$+++ 15119 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Frey, you have 2 minutes remaining.
04-1186 +++$+++ 15121 +++$+++ FALSE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, I'll try to speak quickly. I just have a couple of points. One is with regard to the spread of national banks. There is a comparable spread of State banks. For instance, Sun Trust is a bank that's comparable in scope to Wachovia. It has operations in many States. It has many branches, I assume, in South Carolina. And yet, it is a citizen only of its home State, its State of incorporation, or principal place of business. If there were a problem of abuse of relocation, which I think the Court was a little bit worried about, Congress would deal with it the way they dealt with the abuses of corporate -- stated place of incorporation by passing 1332(c). So let me --
04-1186 +++$+++ 15122 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but if there were the problems that you hypothesize here, Congress could have dealt with them by enacting something that dealt with the proliferation of branch banks rather than interpreting the 1948 statute in light of 1980's --
04-1186 +++$+++ 15123 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It could have, but it saw no need. There was a statute that had been consistently on the books for a century that meant the same thing, which is surely what Congress wanted. Why would Congress bother when it enacted Riegle-Neal and allowed interstate branching, to say, by the way, just like State corporations which conduct business in many States, you know, the rule that we -- we've adopted that banks are located in their main office or their charter location, still applies? That would --
04-1186 +++$+++ 15124 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but that's not a rule that they've adopted. All they say is that they're citizens of wherever they're located.
04-1186 +++$+++ 15125 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it's been interpreted by the Court. It's -- it's been -- you have a series of statutes, and each time the Court says it doesn't change from the original 1882 meaning. You have the 1882 statute then you have 1887, and the Court says this means the same thing as 1882. Then you have 1911. The Court says this means the same thing as 1911. Then 1948. I think Langdeau says it means the same thing there. Let me just, in the brief time I have left, on in pari materia, which is at the heart of Justice Scalia's question about the Bougas case. Let me just cite two cases to the Court that I think are instructive on this, United States against Granderson, 511 U.S. 39, and Fort Stewart Schools, 495 U.S. 641, both refusing to apply the in pari materia doctrine where you had quite comparable statutes. Thank you.
04-1186 +++$+++ 15126 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
04-1203 +++$+++ 15130 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first in United States versus Georgia, and Goodman versus Georgia. General Clement.
04-1203 +++$+++ 15132 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Title II of the Americans with Disabilities Act validly abrogates the States' sovereign immunities as applied to the class of cases involving the unconstitutional treatment of disabled inmates. That result follows from this Court's decisions in Nevada against Hibbs, and Tennessee against Lane. In Lane, this Court held that it was clear, beyond peradventure, that Congress had an adequate basis to enact prophylactic legislation to ensure that individuals with disabilities had access to public services. In reaching that conclusion, this Court surveyed a broad array of evidence, not just limited to the court-access context, and, indeed, surveyed evidence involving prisons, in particular. As a result, the sole remaining question, and the only question in Lane on which this Court applied an as-applied analysis, is the question of whether or not Title II's remedies are congruent and proportional as applied to the particular context; here, the context of the discriminatory, inhumane, or otherwise unconstitutional treatment of inmates with disabilities. Now, if one applies the congruence and proportionality analysis of Lane, in particular, in the prison context, it easily passes constitutional muster. For all of the factors that this Court emphasized as making Title II appropriate in the court-access context -- the absence of absolute mandates, the inherent flexibility of the reasonable modification standard, the fact that benefits are limited to otherwise eligible individuals, the defenses for fundamental alterations or undue burdens -- all of those factors apply with full force in this context.
04-1203 +++$+++ 15133 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can it -- with respect to the reasonableness aspect, in Turner versus Safley, we said prison administrators have a good deal of latitude, in the prison context, in order to maintain order. Now, do you see the reasonableness requirements of the Disabilities Act as being congruent with the Turner-Safley reasonableness analysis?
04-1203 +++$+++ 15134 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Justice O'Connor. And one of the reasons that I think that Title II is particularly congruent and proportional in the prison context is, the reasonable-modification standard, which, after all, uses the term "reasonableness," is very well amenable to the kind of Turner deference standard this Court applied. And, of course, just last term, this Court, in Johnson against California and Wilkins -- and in the Wilkinson case, Cutter against Wilkinson, applied deference to prison officials even in the context of strict scrutiny. And so --
04-1203 +++$+++ 15135 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you --
04-1203 +++$+++ 15136 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I think it --
04-1203 +++$+++ 15137 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- suggesting --
04-1203 +++$+++ 15138 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- applies, a fortiori. I'm sorry, Mr. --
04-1203 +++$+++ 15139 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you --
04-1203 +++$+++ 15140 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Chief Justice.
04-1203 +++$+++ 15141 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- suggesting that the ADA does not add to the burdens of the State officials, it just simply tracks what's already required under Turner?
04-1203 +++$+++ 15142 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, I don't -- I don't -- I'm not up here today saying there's no prophylaxis at all with respect to Title II, but I think it is proportional and congruent, and I think the prophylactic gap between what the Constitution protects and what Title II protects is relatively narrow in the prison context, both because if you think about one set of claims, the Turner claims, much of that deference can be brought in under the reasonable-modification standard; and then, if you think of the other class of cases, those involving deliberate indifference, I think in those class of cases, this is -- the prison context is one of the rare contexts in which the State is under an affirmative obligation to provide accommodations to the medical needs of inmates, including disabled inmates. And I think the fact that here's a case where the Constitution requires affirmative accommodation also helps narrow the prophylactic gap.
04-1203 +++$+++ 15143 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Under Turner, one of the considerations that can be taken into account are the budgetary limitations of State officials. Does that apply under the ADA, as well?
04-1203 +++$+++ 15144 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it certainly could. I think -- if you look at the cases that we collect at footnote 17 of our reply brief, which are cases where the lower courts have applied Turner-style deference to claims under the Rehabilitation Act or under Title II, I think some of those Courts of Appeals have clearly taken into account those kind of budgetary concerns.
04-1203 +++$+++ 15145 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course, all of the concerns you've mentioned could be taken care of by injunctive relief. You don't necessarily need damages.
04-1203 +++$+++ 15146 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think damages are an important aspect of the remedial scheme, Justice Kennedy. I would also point out that, because a number of States have challenged the application of Title II, in the prison context, in particular, as not being valid Commerce Clause legislation, it's not a foregone conclusion that there would be injunctive relief available. But I do think if we want to focus on the damage --
04-1203 +++$+++ 15147 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but if we held the Act was applicable for injunctive relief, it would -- it would be, because I'm -- the pert part of your argument is that you could have a attorneys fees and triple damages where trial attorneys levy against the State treasury, which is -- which is what the eleventh amendment is largely concerned with. That -- all of that would follow from what you've said so far.
04-1203 +++$+++ 15148 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'm not sure about the treble damages, but certainly compensatory damages would be available. This Court, of course, in Barnes against Gorman, has already said that punitive damages are not available under Title II. And I think if you look at compensatory damages --
04-1203 +++$+++ 15149 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know they're not available under Title II, but, I mean, as a constitutional matter, there's certainly nothing barring them, based on what you've told us so far.
04-1203 +++$+++ 15150 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think punitive damages would be a harder case, in terms of proportional incongruence. But this Court has, even in the absence of congressional action, found damages to be an appropriate remedy for unconstitutional or unlawful State conduct. Take the Bivens cases, for example, or the Franklin case, in Title IX, and, I think, if damages are appropriate where Congress hasn't acted, I think where Congress has provided for damages, damages are clearly an appropriate remedy. But, with respect to damages, in particular, I think it's important to note that the prophylactic gap here is not large, because, in the Title IX context, in the Gebser case, this Court has already said that, in order for there to be compensatory damages, there needs to be a showing of deliberate indifference. And now, there may be some difference between what "deliberate indifference" means under Gebser and what "deliberate indifference" means under Farmer against Brennan, but, whatever that small gap is, that certainly seems manageable.
04-1203 +++$+++ 15151 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ General Clement, in two respects, it -- I think you have addressed the cost concern by comparing, in your brief, the Federal experience, which is subject to these controls, and you said it wasn't an inordinate expense, but you also pointed out that every State prison system is subject to the Rehabilitation Act, because they get Federal funds. Is there a difference between the obligation that State systems would have under the Rehabilitation Act and under the ADA?
04-1203 +++$+++ 15152 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Ginsburg, we don't think so. But one thing I think it's important to emphasize is that, although at the current time period all 50 States take Federal funds for their prisons, so that all 50 States are subject to the Rehabilitation Act, that wasn't true at the time that the ADA was passed. And I think what that illustrates is both that Title II plays an important gap-filling role and also that, for whatever reason, I think, this is an area -- prisons taking Federal funds -- where the degree to which they take Federal funds may wax and wane over time. And so, I don't think this is a situation where Title II is purely duplicative of the Rehabilitation Act, but the difference is really in terms of the scope of the coverage, not in terms of the substantive obligations under the --
04-1203 +++$+++ 15153 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the --
04-1203 +++$+++ 15154 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- two provisions.
04-1203 +++$+++ 15155 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- damage remedies available under the Rehabilitation Act is --
04-1203 +++$+++ 15156 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm --
04-1203 +++$+++ 15157 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Damages are available?
04-1203 +++$+++ 15158 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, they are, as to the States.
04-1203 +++$+++ 15159 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ General --
04-1203 +++$+++ 15160 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But this --
04-1203 +++$+++ 15161 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- Clement, I'm interested in another statute that has applicability in the circumstances, and that's Section 1983 and the Prison Litigation Reform Act. Under the -- under the Prison Litigation Reform Act, if you're bringing a constitutional claim under Section 1983, you have to exhaust your prison remedies before you can do that. And that is not the case here, is that right?
04-1203 +++$+++ 15162 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't think that is right, Justice Scalia. I think that we would -- we would say that the PLRA fully applies to claims under Title II and there is an exhaustion remedy. There is also, of course, an exhaustion remedy inherent in Title II, because, in order to get a reasonable modification, you have to ask for the modification in the first place. We also think that the PLRA applies, in all its provisions, to Title II claims. And one important provision to keep in mind is 1997e(e) -- 42 U.S.C. 1997 e(e) -- which is a limitations on the damages that are available. And, under that provision, in order to get damages for emotional or mental injury, you have to also show some sort of physical injury. And the lower courts have interpreted that to require at least the kind of more than de minimis injury you need under the Eighth Amendment. And I think the PLRA, together with Title II, in the particular area of damages, which is what Justice Kennedy has pointed out is the particular area of concern under the Eleventh Amendment, is even a further narrowing of the relief that's available and a further narrowing of the prophylaxis under the Title II. So, I do think the PLRA is actually something that actually helps make sure that the remedy here is congruent and proportional.
04-1203 +++$+++ 15163 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask you to comment on this? This problem of -- just troubles me a little bit. If we hold this provision unconstitutional because it is not congruent and proportional and so forth, does it not follow that the Title II is entirely unconstitutional, it cannot even be enforced by injunctive relief?
04-1203 +++$+++ 15164 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because of the lack of the Commerce Clause nexus? Is that the --
04-1203 +++$+++ 15165 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it --
04-1203 +++$+++ 15166 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- concern, Justice Stevens?
04-1203 +++$+++ 15167 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the whole basis for the constitutionality of the statute, I think, is the Enforcement Clause of the fourteenth amendment.
04-1203 +++$+++ 15168 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it was -- when it was originally enacted, Justice Stevens, it was supported by both the Commerce Clause and, of course the --
04-1203 +++$+++ 15169 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's true of Title II, as well as Title I?
04-1203 +++$+++ 15170 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is -- that's true, the statute generally -- and it's true of Title II. We would make -- we would certainly defend the Act as valid Commerce Clause legislation. But I do think that is a much more difficult argument as to Title II, generally, and particularly difficult argument with respect to prisons. I think, in that respect, it's --
04-1203 +++$+++ 15171 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
04-1203 +++$+++ 15172 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- telling that, if you go back to the Government's brief in Yeskey, when we were dealing with constitutional challenges to the application of Title II to prisons, the Government focused all its energy on defending it as valid Section 5 legislation --
04-1203 +++$+++ 15173 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
04-1203 +++$+++ 15174 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and dealt with the Commerce Clause in a footnote. So, I think we certainly, at that point, were of the view that the Section 5 authority was the much stronger basis to defend the statute, especially in the prison context.
04-1203 +++$+++ 15175 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, what I'm suggesting is that it is not merely a matter of damages that's at issue here, but the entire validity of Title II.
04-1203 +++$+++ 15176 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We agree with that, Justice Stevens. And I would say, with respect to -- I mean, again, I don't want to mislead you, in the sense that we would be here defending it as Commerce Clause legislation, but I think that's a tricky argument. If it's possible, I'd like to reserve the rest of my time for rebuttal.
04-1203 +++$+++ 15177 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General. Mr. Bagenstos.
04-1203 +++$+++ 15179 +++$+++ FALSE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The Americans with Disabilities Act is congruent and proportional as applied to the prison setting for essentially three reasons. The first is the nature of the constitutional right that's at stake in the prison setting. As in the access-to-courts setting, this is a setting where States have affirmative constitutional duties, including, in many circumstances, duties of accommodation of inmates' disabilities. The second reason relates to the record of constitutional violations in this context, a record in the context of State treatment of inmates with disabilities that is extensive, that is judicially documented and confirmed on a nationwide basis. And the third reason relates to the tailoring of the ADA remedy, which the -- which General Clement has spoken about to some extent already -- both limitations inherent in the ADA itself and in the PLRA, which fully applies to ADA cases.
04-1203 +++$+++ 15180 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do those violations that you allude to -- is there an extensive record of violations by the State of Georgia?
04-1203 +++$+++ 15181 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is not. The same -- the record of constitutional violations is nationwide. We don't have any judicial findings --
04-1203 +++$+++ 15182 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you're --
04-1203 +++$+++ 15183 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of constitutional violations --
04-1203 +++$+++ 15184 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the money --
04-1203 +++$+++ 15185 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- by Georgia.
04-1203 +++$+++ 15186 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- is not coming from the Nation, it's coming from the State of Georgia. Was the State of Georgia guilty of constitutional violations?
04-1203 +++$+++ 15187 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I mean, of course, in this case, the lower court said that there might have been a constitutional violation that allowed that claim to proceed in the --
04-1203 +++$+++ 15188 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, no, my --
04-1203 +++$+++ 15189 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- companion --
04-1203 +++$+++ 15190 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I mean a record -- a record that would have justified applying, against the State of Georgia, prophylactic measures.
04-1203 +++$+++ 15191 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we think the prophylactic measures are justified by the nationwide record, just as in this Court's case --
04-1203 +++$+++ 15192 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Even against people who played no part in that nationwide record.
04-1203 +++$+++ 15193 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's this Court's cases on prophylactic nationwide legislation, absolutely. You know, in Tennessee versus Lane, this Court upheld nationwide prophylactic legislation on the basis of a record that included constitutional violations in only eight States. Here, we have a record that touches on at least 37 States, if you look in pages 20 to 36 of our opening brief. In --
04-1203 +++$+++ 15194 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is this relevant to the -- I just saw these as -- I -- just by chance, it -- - one of the cases in the SG's brief involved Georgia juvenile facilities, where mentally ill patients were restrained, hit, shackled, put in restraint chairs for hours, sprayed with pepper spray.
04-1203 +++$+++ 15195 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think --
04-1203 +++$+++ 15196 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And that seemed to be one instance coming out of Georgia.
04-1203 +++$+++ 15197 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's right. I think that's --
04-1203 +++$+++ 15198 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was that before or after the enactment of this statute?
04-1203 +++$+++ 15199 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that was pre-ADA, Your Honor. But I think that the point -- the point is that the record of constitutional violations here is a nationwide record. It's a record that includes some incidents from Georgia. It's a record that includes many incidents from many other States; as I say, 37 different States. It's a record of constitutional violations that's been judicially confirmed. We have courts actually finding --
04-1203 +++$+++ 15200 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well --
04-1203 +++$+++ 15201 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in final adjudications --
04-1203 +++$+++ 15202 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I'm looking at the --
04-1203 +++$+++ 15203 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- constitutional violations.
04-1203 +++$+++ 15204 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- at the chart in one of the amicus briefs, which shows that there are, for Georgia -- and it lists all the States -- for Georgia, zero arguable State violations prior to the Act.
04-1203 +++$+++ 15205 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that's -- I mean, I think that's because they exclude --
04-1203 +++$+++ 15206 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The --
04-1203 +++$+++ 15207 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- juvenile facilities from their --
04-1203 +++$+++ 15208 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well --
04-1203 +++$+++ 15209 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- consideration.
04-1203 +++$+++ 15210 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- State and local violations.
04-1203 +++$+++ 15211 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-1203 +++$+++ 15212 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But State and local units don't enjoy the sovereign immunity of the State.
04-1203 +++$+++ 15213 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- I mean --
04-1203 +++$+++ 15214 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You --
04-1203 +++$+++ 15215 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- you know --
04-1203 +++$+++ 15216 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- don't need this Act to sue them.
04-1203 +++$+++ 15217 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would say, in Georgia, of course, State and -- of course, local facilities are arms of the State in Georgia. That's been the judicial holding. And so, for Eleventh Amendment purposes, we would consider them. But I would say the record of constitutional violations here that justifies nationwide prophylaxis is really far more extensive than the record that's been before this Court in Tennessee v. Lane and Nevada v. Hibbs and touches on touches on even more States than, you know, the nationwide literacy test ban that was upheld in Oregon v. Mitchell. At the time this Court upheld that, only 22 States had literacy tests, I think.
04-1203 +++$+++ 15218 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask you this? The notion of our reviewing the adequacy of the evidence before Congress is something that's always seemed, sort of, puzzling to me. Do you know what -- what is -- what standard do you suggest that we should apply in determining whether the evidence before Congress was sufficient?
04-1203 +++$+++ 15219 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In determining whether the evidence before Congress was sufficient, I think, you know, this Court has said -- I think the standard comes from City of Boerne -- it's the congruence and proportionality test, but it recognizes that Congress has to have a great deal of leeway in determining where the line between enforcement and substantive change in the law lies. And, you know, here we have, whatever standard we use, the kind of record of constitutional violations that justifies prophylaxis. We have -- we have constitutional rights that impose on States obligations of accommodation. So, the ADA is, in no circumstance --
04-1203 +++$+++ 15220 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, I understand your view is that, whatever the standard is, you win. I'm just curious, do you have a -- [Laughter.]
04-1203 +++$+++ 15221 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- do you have a formulation of what the proper standard should be?
04-1203 +++$+++ 15222 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, as I said, I think the -- I do think that the proper standard should be the City of Boerne standard of congruence and proportionality, exercised with the kind of deference that this Court said in Boerne, which I think this Court adopted in Lane, to the factfinding capabilities of the -- of the -- of the Congress.
04-1203 +++$+++ 15223 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I understand your submission -- and that's what I heard from the Solicitor General, as well -- on the difference between enforcement and the substantive right. You're assuring us that we don't need to worry about that, because there's no great difference between what you think is required under the ADA and what's required under the Constitution.
04-1203 +++$+++ 15224 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Mr. Chief Justice, I think there is clearly a difference. Right? There's a prophylactic sweep to the statute. It's just that it's not very much, in this context, for a number of reasons, one being the nature of the constitutional rights, that they impose requirements that are affirmative duties, the other being the way the reasonableness language of the ADA has been consistently read by lower courts to take account of context, and another being the Prison Litigation Reform Act, which further ties the ADA to the --
04-1203 +++$+++ 15225 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm just wondering if that's --
04-1203 +++$+++ 15226 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- constitutional violation.
04-1203 +++$+++ 15227 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- a reasonable reading of the ADA, which I had always understood to be a significant change in -- in terms of what rights are available to the disabled. And it seems to me quite different from Turner against Safley, which talks about the demands of the prison environment and the -- and a high level of deference to prison administrators. Do you think that approach is, in fact, consistent with what Congress had in mind with the ADA?
04-1203 +++$+++ 15228 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that the approach of taking into account the significant State interest in uniform treatment in the prison setting uniquely, yes, is very much consistent with what Congress had in mind, just as this Court, in the Cutter case, you know, read the "compelling State interest" language, much more stringent language about the -- about what the State has to satisfy -- as taking --
04-1203 +++$+++ 15229 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ One --
04-1203 +++$+++ 15230 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- account of --
04-1203 +++$+++ 15231 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ One --
04-1203 +++$+++ 15232 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- these concerns.
04-1203 +++$+++ 15233 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ One concern is that, in the prison situation, the prison is exerting control over all aspects of the prisoner's daily life. That's very different from just court access, as in Tennessee versus Lane, and it could require very extensive requirements, perhaps. Is that a concern, or should it be, in the "congruence and proportionality" examination?
04-1203 +++$+++ 15234 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think there are two sides to that coin. I think, definitely, the scope of the ADA in the prison setting, you know, is important. I think that the lower court's reading of "reasonable," which I think is the -- is the reasonable reading of "reasonable," if I may say so -- is, you know, "reasonable" takes account of context, and "reasonableness" takes account of proportion, as well, the kind of accommodation that may be reasonable, where what's at stake is the ability of an inmate with a disability to go to the bathroom safely, like Mr. Goodman alleges, may be entirely unreasonable, where what's at stake is attending an arts-and-crafts class, or something like that. So, I think that is important, but I think the flip side of the -- of the State's complete control over every aspect of the inmate's environment is, this is one of the few areas of Government where States have affirmative constitutional duties, including --
04-1203 +++$+++ 15235 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Bagenstos, on this point, do we have any figures on what -- I guess it's the Rehabilitation Act that applies to the Federal Prisons -- do we have any figures on -- you know, on what that has cost in required accommodations?
04-1203 +++$+++ 15236 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You know, I don't know the figures for that. Perhaps the Solicitor General can answer as to what the burden has been on the Federal Government. I think, you know, the Solicitor General states in his brief -- in his reply brief, particularly -- that the burden has not been significant, the Government --
04-1203 +++$+++ 15237 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1203 +++$+++ 15238 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- has not --
04-1203 +++$+++ 15239 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It applies -- it applies to State prisons, as well, because of its Spending --
04-1203 +++$+++ 15240 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, yes, that's right.
04-1203 +++$+++ 15241 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- Clause legislation.
04-1203 +++$+++ 15242 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. That's right.
04-1203 +++$+++ 15243 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true. It does apply to State prisons, as well, Justice Ginsburg. However, we -- you know, we obviously can't be sure that it's always going to cover every State prison. It hasn't, at times, in the past. It might not, at times, in the future. I think, you know, one of the significant aspects of the Rehabilitation Act is -- and I think the amicus brief filed on behalf of Mr. Goodman by the former President George H. W. Bush really emphasizes this -- the ADA was passed based on a firm conclusion by Congress that the Rehabilitation Act had failed, that it hadn't worked. And I think the record of constitutional violations here shows that, that we have such an extensive record of judicially confirmed, judicially established findings of constitutional violations in the prison context, and we have constitutional rights that impose on States the same kinds of requirements, not in all particulars, but in very similar ways, as the ADA does, itself. I think that's where -- that's where the congruence and proportionality really comes in.
04-1203 +++$+++ 15244 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why is it so clear that damages are necessary and that equitable relief shouldn't suffice? It's --
04-1203 +++$+++ 15245 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1203 +++$+++ 15246 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- it's puzzling -- it's puzzling to me, the notion that trial attorneys and their clients can levy upon the funds in State treasuries under the Eleventh Amendment. Why is it congruent and proportional to allow that?
04-1203 +++$+++ 15247 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, a couple of points about that. I mean, the first is the deterrent function of damages is really essential in this context. I think that's the import of the record of constitutional violations. Section 1983 failed. I think the second point about damages is, they're very limited in the prison context. They're limited by this Court's decision in Barnes, no punitives. They're --
04-1203 +++$+++ 15248 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, where you say Section 1983 failed, the ADA could allow equitable remedies.
04-1203 +++$+++ 15249 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The ADA could allow equitable remedies, but -- could certainly --
04-1203 +++$+++ 15250 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And why --
04-1203 +++$+++ 15251 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- allow --
04-1203 +++$+++ 15252 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And why shouldn't that -- why shouldn't that suffice?
04-1203 +++$+++ 15253 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think, you know, this -- something this Court has said repeatedly, that the deterrent function of damages is important -- and here, we have -- we have a very good -- we have very good evidence that we need deterrents in this context. We need deterrents because constitutional violations have continued and continued. But I --
04-1203 +++$+++ 15254 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why don't --
04-1203 +++$+++ 15255 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- think that --
04-1203 +++$+++ 15256 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why don't you need it for 1983 violations?
04-1203 +++$+++ 15257 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
04-1203 +++$+++ 15258 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Constitutional violations. Not just prophylaxis --
04-1203 +++$+++ 15259 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there --
04-1203 +++$+++ 15260 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- but actual constitutional violations by the prisons under 1983 --
04-1203 +++$+++ 15261 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it --
04-1203 +++$+++ 15262 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that don't happen to relate to the handicapped and, thus, are not covered by this legislation? You can't get damages there.
04-1203 +++$+++ 15263 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you know, I think that the -- with respect to constitutional violations that might not relate to people with disabilities, you know, that's something Congress could certainly consider in other legislation. Here, Congress would -- had, staring in front of it -- right? -- a record of constitutional violations that showed -- right? -- proven constitutional violations showed that the 1983 remedy, which doesn't authorize damages against the State, wasn't working. We need to have some additional remedy. We need some additional deterrents and spur to compliance on the part of States. But I think it's also important to note how limited the damages remedy in this context is. It's not just the absence of punitive damages. It's not just -- you know, we also have the provision of the PLRA that says no damages for mental and emotional injury in the absence of physical injury, which means that, in the kinds of cases that are peripheral to core constitutional rights, we're not going to have damages anyway. It also -- we also have the exhaustion requirement of the PLRA, which imposes on plaintiff the requirement that they go to the prison and tell them, "Here's the problem," which means that if we have a case that satisfies the PLRA, we're very likely to have deliberate indifference, a problem that prison officials have refused to resolve --
04-1203 +++$+++ 15264 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, wait, but -- you know, in 1983, when you exhaust your prison remedies, the prison fixes what was wrong, and that's the end of it. But, under this Act, you go through your prison remedies, what do you ask the prison for? Money? The prison can't give you money, so they say, "No, you can't get your money." I --
04-1203 +++$+++ 15265 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think --
04-1203 +++$+++ 15266 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- mean, the prison-remedy thing is -- the only thing it does is make it take a longer time to get to court, but it does the prison no good. It's going to be liable for damages anyway.
04-1203 +++$+++ 15267 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that, of course, the prison can reduce its damages liability, and, of course, where we have a continuing violation after exhaustion, which is what -- when people file these lawsuits, when they have continuing problems, like Mr. Goodman alleges were continuing problems in his case -- we will have cases where we have very much -- very likely to have deliberate indifference. And so, I think that's an important thing, too. I think the other important point about Turner v. Safley that the Solicitor General spoke about -- right? -- many of the constitutional rights in the prison setting that are significant here don't implicate Turner v. Safley. Eighth Amendment cruel-and-unusual-punishment claims don't implicate Turner v. Safley, as this Court said in the Johnson case. And we have a very substantial record of Eighth Amendment violations. Of course, the Eighth Amendment requires accommodation of serious medical needs, as this Court has said ever since Estelle v. Gamble, and "serious medical means -- needs" is a term that's very close to the way this Court has narrowly read the disability definition in the ADA. And so, I think another very significant aspect of the congruence and proportionality here is how close the ADA's disability definition is to the class of people who implicate constitutional rights, affirmative constitutional rights of accommodation, under the Eighth Amendment itself. And so, I think that's another very significant aspect of the tightness of the fit here. But, here, I think the most salient fact is, if you ever had a record justifying prophylaxis nationwide, the record here, that touches on 37 different States, that includes, in many cases, statewide findings of constitutional violations, is it, it's a record that justifies, certainly, some prophylactic legislation; at least -- at the very least, the minimal prophylaxis that we have in the ADA in the prison setting. It's a kind of -- it's a kind of prophylaxis that's very much like the kind of prophylaxis this Court has previously upheld in Tennessee v. Lane, where we had very similar affirmative constitutional obligations, and in Nevada v. Hibbs, where we had a much less significant record, nationwide, of constitutional violations. And so, for all those reasons, you know, we believe that the ADA is congruent and proportional in the prison setting. And if the Court has no further questions --
04-1203 +++$+++ 15268 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel.
04-1203 +++$+++ 15269 +++$+++ TRUE +++$+++ MR. BAGENSTOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay. Thank you
04-1203 +++$+++ 15270 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Castanias.
04-1203 +++$+++ 15272 +++$+++ FALSE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Before I sit down today, I'd like to make three basic points, and hopefully I'll get to make -- elaborate on each of them a little bit. First of all, this case is not anything like Tennessee versus Lane. It doesn't involve the very important civil right of access to courts, access to voting booths, or anything like that. It involves --
04-1203 +++$+++ 15273 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But was there -- there was a reporter who was one of the disabled people, I think, wasn't there, in Tennessee versus Lane?
04-1203 +++$+++ 15274 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that's correct --
04-1203 +++$+++ 15275 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so --
04-1203 +++$+++ 15276 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Your Honor.
04-1203 +++$+++ 15277 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- what is the right that that reporter has that's specific to courthouses?
04-1203 +++$+++ 15278 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As I understand it, Your Honor, from reading the opinion, that right was the specific right to access the courts. It's the public right of access to see court proceedings, like the people --
04-1203 +++$+++ 15279 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, was there any problem of that in Tennessee versus Lane? I thought the courthouse officials there said, "There'll be a trial. No problem there, just whether you have to walk up the steps or don't, and we'll give you a trial down below." Was there -- it's the right of access to courthouse, specially?
04-1203 +++$+++ 15280 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's the right of access to courts, specifically, that was the context that was -- that was created for purpose of the as-applied analysis in Lane. The second point I hope I'll get to address today is the very fundamental differences between the prison context the -- and the courthouse context at issue in Lane, and the reasons why the prison context that it's -- that is at issue in this case makes this case so fundamentally different. The prison context, as Justice O'Connor pointed out, is one where issues of safety and security and, as well, from the Court's decisions, issues of federalism and deference to prison officials hold sway. Those were not at issue in Lane, and they --
04-1203 +++$+++ 15281 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, your --
04-1203 +++$+++ 15282 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- have a --
04-1203 +++$+++ 15283 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- your friends on the other side say that's not a big deal, because the ADA looks only to reasonable accommodations; you can take all those factors into account; and presumably the lower courts would. In other words, they say you're already subject to most of these obligations anyway, and it's just a little bit extra, under the ADA.
04-1203 +++$+++ 15284 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Mr. Chief Justice, we respectfully, but strenuously, disagree with that submission, and I'll give you a very good example of what they're not talking about here. What's happening under the ADA, as a practical matter in the prison context, is that it's giving prisoners trials on issues like whether or not they have access to the television room in the prison. That's not a constitutional right. Before the ADA, that was never understood to be a constitutional right.
04-1203 +++$+++ 15285 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Have Courts of Appeals approved those determinations?
04-1203 +++$+++ 15286 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not aware, Justice Ginsburg, of any Court of Appeals that has ruled on that yet, but I am aware of two District Court cases -- I could give you the names of them -- where summary judgment was denied, and a trial was given to the inmate. One is Brown against King County Department of Adult Corrections --
04-1203 +++$+++ 15287 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And how many has it -- in the District Courts, how many have been rejected when it's something like television or recreation?
04-1203 +++$+++ 15288 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, without making any representations that I am going to canvas the universe on this, I have not seen a case where the District Court has rejected a trial in that respect. And I think, Your Honor, this gives me an opportunity to talk about one of the fundamental problems --
04-1203 +++$+++ 15289 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, before you do --
04-1203 +++$+++ 15290 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure.
04-1203 +++$+++ 15291 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- as I understand it, and as the Solicitor General confirmed, you are subject to the Rehabilitation Act, where the substantive scope is the same. So, what -- you are saying, in the prison context, this is undue, but you all -- you are already subject to it under one Act. And how has that been working out?
04-1203 +++$+++ 15292 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, I don't have any data on that, and we haven't -- we don't have any in our brief. The Solicitor General's data that he put in on the Federal Bureau of Prisons came in his reply brief, and we certainly haven't had --
04-1203 +++$+++ 15293 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But do you --
04-1203 +++$+++ 15294 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- an opportunity --
04-1203 +++$+++ 15295 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- agree that --
04-1203 +++$+++ 15296 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to pull that together.
04-1203 +++$+++ 15297 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the Rehab Act contains the same essential requirements as ADA?
04-1203 +++$+++ 15298 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the Rehabilitation Act is a little different than the ADA, but it certainly is protective of many of the same rights. I would think it would be protective of all of the same constitutional rights that the --
04-1203 +++$+++ 15299 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you agree that it applies at least where the States are accepting Federal money for the prison?
04-1203 +++$+++ 15300 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, as I understand it, Justice O'Connor, the Spending Clause power can be hived down on a program-by-program basis, not just as whether the State itself is receiving it. So, without knowing specifically whether we're talking about the particular program --
04-1203 +++$+++ 15301 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does it apply in the prison in this case -- the Rehab Act?
04-1203 +++$+++ 15302 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know the answer to that, as I stand here, Justice O'Connor.
04-1203 +++$+++ 15303 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Schaerr, who's going to be representing some States as amici, will presumably have better information on that subject.
04-1203 +++$+++ 15304 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
04-1203 +++$+++ 15305 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In your point of view, would it help if the Court said -- I guess it would, but I -- in order to get rid of this problem, if the Court said, "Look, it says 'reasonable.' Of course prison has special problems," and, referring, say, to Turner versus Safley, said that, "These things about television remote controls are not really, normally, a matter of unreasonableness." So, in other words, we hit -- we -- you'd give considerable discretion to the -- to the warden, and the Act would have bite in cases where there is really a serious problem, like this one. It's alleged to be a really serious problem.
04-1203 +++$+++ 15306 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Breyer, I think you're right to say that, except that that's not what the Act says. The Act says --
04-1203 +++$+++ 15307 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought it said "reasonableness."
04-1203 +++$+++ 15308 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's exactly right, and that -- and the reasonable -- the reasonable-accommodation or reasonable-modification standard of the ADA, both generally and specifically in Title II, imposes an affirmative burden on the States, which is very much unlike the rational-basis test of Cleburne. It's very much unlike the rational-relationship test of Turner against Safley. Quite the contrary, what happens in these cases -- and this comes up in the television cases, as well as the access-to-chapels cases or any of the -- any of the cases that the Petitioners have hypothesized -- what happens in that case is, the Petitioner pleads that, "I could access this if I only had a reasonable accommodation," and then the burden shifts to the State, at that point, to not just articulate reasonable grounds, but to, in fact, prove that it is not reasonable or that it would be an undue burden. There is a case that the -- that Petitioner Goodman has cited in both of his briefs to this Court, out of the Seventh Circuit, called Love against Westville Correctional Facility -- comes out of Indiana -- and this case is a great example of why, Justice Breyer, the Turner against -- the Turner against Safley integration into the reasonableness provisions of ADA Title II won't work, and isn't congruent and proportional, because --
04-1203 +++$+++ 15309 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that case cited somewhere?
04-1203 +++$+++ 15310 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is. It's in both the -- Petitioner Goodman's opening and reply briefs. In the Love case -- and this is -- this is a law-school exam case, because the prisoner put forth his case, in the State of Indiana, while it was pre-Yeskey, nonetheless agreed that the ADA applied to the prison and, at the same time, didn't present any evidence. And the prisoner won the case. And they won the case, because all the State did is articulate reasons, like there was -- it would cost too much. And this court very clearly said, "Look, you didn't put any evidence. You lose." Now, that's what -- that was one of the fundamental factors that caused this Court to find, in both Kimel and Garrett, the statutes unconstitutional, because the --
04-1203 +++$+++ 15311 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But maybe in the prison setting, the lower courts would pay some attention to the Court's recent decision in Cutter against Wilkinson, where the Court made it very clear that a high level of deference -- even dealing with a strict-scrutiny standard for religious freedom -- that a high level of deference would be paid to prison administrators' judgment of what safety and discipline requires inside a prison. Wouldn't that -- wouldn't that carry over to the ADA, were it to apply?
04-1203 +++$+++ 15312 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You --
04-1203 +++$+++ 15313 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We could say that --
04-1203 +++$+++ 15314 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But you --
04-1203 +++$+++ 15315 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- in this opinion. I mean, that would make it happen, wouldn't it?
04-1203 +++$+++ 15316 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You could -- I mean, you could absolutely say it. You -- the Court can say anything it wants here. But the problem is, is that this was -- this was one of the fundamental problems with ADA Title I --
04-1203 +++$+++ 15317 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think that the --
04-1203 +++$+++ 15318 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and with the ADEA --
04-1203 +++$+++ 15319 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that if the prison explained what their practices were, in terms of the needs of security, that a lower court will then say, "Well, never mind that. The Supreme Court just said it. We don't have to enforce it"? I don't think there would be that kind of lawlessness.
04-1203 +++$+++ 15320 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm -- I -- Justice Ginsburg, were -- if this Court were to uphold the damages remedy in this case, this would be what the States would be left to argue. And in -- while it is true that you have said, in a couple of recent cases, that strict scrutiny is not quite as fatal, in fact, as usual, that strict-scrutiny case that you're referring to is the true exception in the prison context, where strict scrutiny was applied. And it involved the very important, very core Fourteenth Amendment right against racial discrimination. Here, we're talking about a statute that was framed by Congress as basically trying to change the Cleburne rule, trying to bring an added level of scrutiny to claims, equal-protection- --
04-1203 +++$+++ 15321 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's interesting --
04-1203 +++$+++ 15322 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- -type claims.
04-1203 +++$+++ 15323 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that you cite that case, in terms of Justice Scalia's remark, "Watch what we do, not what we say." Cleburne was a remarkable case in that respect. It purported to apply rational-basis review, but the plaintiffs won.
04-1203 +++$+++ 15324 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's exactly right, Justice Ginsburg. And, in fact, the reason that the plaintiffs won is that the State, in that case, the State defendants, offered four reasons, all of which were found to be not legitimate State reasons. It was a straightforward application of the rational- --
04-1203 +++$+++ 15325 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if you think --
04-1203 +++$+++ 15326 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- -basis test.
04-1203 +++$+++ 15327 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- if you think of the -- any conceivable basis -- doesn't even have to be offered if the -- if it's, indeed, the rational-basis test. It has been suggested that something more is going on in Cleburne, and, I think, in all candor, one would have to say so. Because if you looked at the rational-basis test that had gone before, this one looked no better, no worse.
04-1203 +++$+++ 15328 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that the Tennessee Solicitor General Moore, at the end of the Lane argument, said, "We have to take the Court as -- for what it does say." And it said it was applying rational-basis scrutiny in that case.
04-1203 +++$+++ 15329 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Castanias, suppose the Court agrees with you that the response here is not proportionate, and, hence, that the prophylactic aspects of this statute are invalid. There remains the fact that the statute covers actual constitutional violations for which you don't need any special proportionality. Certainly, the Government can allow the States to be sued for constitutional violations. And the plaintiff here claims that some of the acts he's seeking damages for do amount to constitutional violations. How can we possibly say that that suit does not lie?
04-1203 +++$+++ 15330 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think, Your Honor, there are two answers to that. First of all is, Section 1983 already did that. And the reason that that -- that may not --
04-1203 +++$+++ 15331 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It doesn't lie damages here. Can you get damages under 1983?
04-1203 +++$+++ 15332 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely.
04-1203 +++$+++ 15333 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Against the State?
04-1203 +++$+++ 15334 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You can get it against State officers acting --
04-1203 +++$+++ 15335 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ State officers don't have any money. [Laughter.]
04-1203 +++$+++ 15336 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We're talking about damages against the State.
04-1203 +++$+++ 15337 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you cannot get damages against the State --
04-1203 +++$+++ 15338 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Under --
04-1203 +++$+++ 15339 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- under Section --
04-1203 +++$+++ 15340 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- 1983 --
04-1203 +++$+++ 15341 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- 1983, that's --
04-1203 +++$+++ 15342 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- absolutely.
04-1203 +++$+++ 15343 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- right. That is exactly right. But the other answer, Justice Scalia, is that to get to that result -- and I think it's remarkable that both Petitioners' counsel stood up here, and the way they framed the question was, "This is just remedial for these actual constitutional violations in prison." To get to that result, you would have to rewrite the ADA in a way that would make the reasonable-modification or reasonable-accommodations provision basically an empty vessel to put whatever constitutional law you want in --
04-1203 +++$+++ 15344 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no, I mean the portions that go beyond constitutional violations are no good. I'm not -- I'm not going to read it unrealistically so that it only includes constitutional violations. But, to the extent that it includes constitutional violations, why isn't that lawsuit perfectly okay?
04-1203 +++$+++ 15345 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me -- let me -- let me pause for a second and think about that. The -- I think the problem with that -- my instinct is that there is a problem with that, and I think the problem with that -- not just because, Your Honor, I represent the State -- but I think the problem with that is that it is, in no way, congruent to the constitutional rights. In other words, what it's doing is, it's giving, only to a limited class of prisoners, a particular set of rights. In a way, this is the -- this is the underbreadth argument that we made in our brief that the -- that the Petitioners, in their replies, made fun of a little bit. But, quite honestly, this is -- this -- it would be giving disabled inmates -- making them into a special class for purposes of constitutional violations that don't apply just to disabled inmates at all. Quite the --
04-1203 +++$+++ 15346 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's --
04-1203 +++$+++ 15347 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- contrary --
04-1203 +++$+++ 15348 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is true. This is exactly the point I had asked about before. This is a better point. Because I thought that bridge was -- that -- was crossed in Lane. That is, I don't see how you can say that Lane was not giving -- saying it's constitutional to have prophylactic rules. And that's why I raised the reporter. I've never heard of a First Amendment right of a paper to send a particular reporter. I mean, if there's a disabled reporter who couldn't get into the courtroom, I guess they could send a different reporter. Maybe that's a First Amendment right, but I have not heard of it. So, I thought that, really, Lane is saying, "You can sweep, within the prophylactic rules, a lot of things that are not, in fact, constitutional violations, but simply discrimination against disabled people."
04-1203 +++$+++ 15349 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think, Justice Breyer, with regard to Lane, the right that was at issue was not the right of the paper to send a reporter, it was the right of the reporter --
04-1203 +++$+++ 15350 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think there is a First Amendment right for a newspaper, for example, to send a particular reporter to the courtroom. That's an interesting question. I never thought of that one. I --
04-1203 +++$+++ 15351 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, actually, Justice --
04-1203 +++$+++ 15352 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you don't think Lane stands for the proposition of their prophylactic rules being perfectly legitimate under the Eleventh Amendment, where you have a set of constitutional violations?
04-1203 +++$+++ 15353 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, I think -- I think I either misstated my answer to you, because I was trying to --
04-1203 +++$+++ 15354 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I was asking --
04-1203 +++$+++ 15355 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
04-1203 +++$+++ 15356 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm --
04-1203 +++$+++ 15357 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me try to answer that and --
04-1203 +++$+++ 15358 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-1203 +++$+++ 15359 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- say to you that I think, first of all, the First Amendment right that was at issue there was the general right that's possessed by the public to attend court proceedings, not just a right that was inherent in the newspaper or the -- a right that was prophylactically being exercised there. Justice Kennedy, you asked the Petitioner's counsel about alternative remedies here, and I think there's an important point to make with regard to Title III of the ADA, and that's the title of the ADA that applies, not to public entities, as we have here, like the State prison, but the title that applies to public accommodations, like restaurants and hotels. And it's important to note, I think, that, in that title, Congress did not provide for money-damages remedies. Quite the contrary, it provided for an Attorney General action, and it provided for injunctive relief. And so, the notion that States somehow are special and should be the ones that get damages against them for violating the -- violating access rights is, in words that the Court has used -- in Boerne and the cases following it, that is a real indignity to the States. And, beyond that, the standard that applies --
04-1203 +++$+++ 15360 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, presumably, that's because the prisoners don't have a lot of choice as to which accommodations they're going to select. [Laughter.]
04-1203 +++$+++ 15361 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure, Mr. Chief Justice, that it follows that damage -- that damages follow from that observation. And I think, with regard to the choices that are available to prisons, much has been made in this case about the affirmative obligations of the State to provide the minimum standards of health and safety for prisoners. And I'd point out that, in the Court's decision in DeShaney -- specifically, footnote 7 -- the former Chief Justice wrote for the Court that, in determining both the scope and how to satisfy those, there is an enormous amount of discretion imposed in the State. So, it's hard to say that that provision is allowing for -- that minimal affirmative burden that's on the State is in any way congruent with the broad affirmative remedies that are at stake in this case. Now, if I could just go through, very quickly, the various constitutional rights that are being addressed here by the -- that are being claimed here by the Petitioner, you can see, in each case, why it's not a proportional and congruent remedy to use Title II of the ADA to enforce them. First of all, with regard to the Equal Protection Clause, it's almost obvious, from the findings of Congress, that they meant to impose a higher degree of scrutiny. By citing the words of Carolene Products, as well as Matthews against Lucas, that's -- have justified heightened scrutiny to apply to the disabled, this is almost proof positive that Title II -- and the ADA, in general -- is changing the level of constitutional law. It's not enforcing; it's changing the law.
04-1203 +++$+++ 15362 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that just proves that they went too far. It doesn't prove that, to the extent that it covers a constitutional violation, it's okay. We will say the excess is bad.
04-1203 +++$+++ 15363 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Scalia, I think the answer to that comes back to Kimel and Garrett. The excessive change in the constitutional law was held to have crossed the line in that case. And here, we have the same problems. We have the changing of the burdens. We have the changing of the level of scrutiny. And we have the efforts, the same efforts that were used in Kimel and Garrett --
04-1203 +++$+++ 15364 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think --
04-1203 +++$+++ 15365 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to make --
04-1203 +++$+++ 15366 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the level of scrutiny applied in Cleburne was precisely the same rational-basis level that is applied in a lot of other rational-basis cases?
04-1203 +++$+++ 15367 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it was, Justice Stevens, because you can only talk about the conceivable remedies in the context of what the State puts forth. And perhaps a creative judge could say, "Aha, but that's the State -- you didn't think about this one." And the fact that Justice White's opinion -- - I think it was Justice White's opinion for the court in Cleburne -- didn't go on and think about four other conceivable bases, I don't think is a fault of the decision-making process at all. With regard to the Petitioner's efforts to enforce the guarantee against cruel and unusual punishment, there is no intent standard in the ADA at all. In fact, this would scrub out the deliberate-indifference standard entirely, and, in the -- at least Goodman's reply brief, he admits that that basically would be what would happen. He says that would be appropriate prophylaxis. I think that is an astonishing claim in this case.
04-1203 +++$+++ 15368 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can we go back, Mr. Castanias, to Justice Scalia's question about the core concerns? And we have been told by Respondents that their core concerns are sanitation, mobility, protection from physical injury. Now, that sounds to me like constitutional Eighth Amendment heartland.
04-1203 +++$+++ 15369 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And in that case, Justice Ginsburg, if I could just briefly --
04-1203 +++$+++ 15370 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- conclude? In that case, Justice Ginsburg, the Constitution, through Section 1983, does provide a remedy. It will provide a remedy that will get the prison to stop that. If there are no other questions, we'd ask that the judgment be affirmed.
04-1203 +++$+++ 15371 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Counsel. Mr. Schaerr, we'll hear now from you.
04-1203 +++$+++ 15373 +++$+++ FALSE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Let me begin by attempting to answer Justice Scalia's questions -- question about the Rehabilitation Act. My understanding is that the key difference between the Rehabilitation Act and Title II is that -- is that the Rehabilitation Act requires intentional conduct, which, obviously, is a much -- a much higher standard. Instead of dwelling on the record offered in support of Title II -- and we agree with Georgia that the record was not sufficient -- I'd like to focus on the congruence and proportionality requirements, which are quite separate from the record requirement, and which we believe are independently dispositive in this case, for two separate reasons. But, first, I think it's important to recall the two key purposes that the congruence-and-proportionality analysis serves. One of those, as the Court has reiterated, is to prevent Section 5 from becoming a kind of police power through which Congress can regulate the States and impose litigation and other burdens on them as though they were mere corporations. The second purpose, of course, is ensuring that the specific remedies that Congress chooses, and especially the abrogation of sovereign immunity -- sovereign immunity that this Court has held is within Congress's Section 5 power, are a measured response to Congress's legitimate goals. And that's obviously important, because of the -- of the -- of the tension between the Section 5 power, on the one hand, and the Eleventh Amendment and other provisions of the Constitution that protect --
04-1203 +++$+++ 15374 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I just --
04-1203 +++$+++ 15375 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the State's sovereignty.
04-1203 +++$+++ 15376 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- be sure I understand this point?
04-1203 +++$+++ 15377 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1203 +++$+++ 15378 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you, in fact, arguing that the statute might be -- I know you don't agree with it -- might be proportionate and congruent with respect to all of its prohibitions, but, to the extent it provides for a damage remedy, then it crosses the line?
04-1203 +++$+++ 15379 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do believe that the statute could be invalidated on that ground alone, but I don't think the Court needs to do that, because I think it's clearly not congruent with constitutional requirements. And let -- and I believe there are --
04-1203 +++$+++ 15380 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But --
04-1203 +++$+++ 15381 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- four reasons for that.
04-1203 +++$+++ 15382 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But is that -- it -- because it has a damage remedy, or would it be equally noncongruent without the damage remedy? That's what I'm trying --
04-1203 +++$+++ 15383 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
04-1203 +++$+++ 15384 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm following up on Justice Kennedy's question to your colleague.
04-1203 +++$+++ 15385 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the way -- the way I would view it is that the damage remedy is disproportionate to Congress's legitimate goals in this case, for a couple of reasons. Number one, as in -- as in Florida Prepaid and some of this -- some of this Court's other decisions, the abrogation of sovereign immunity is not limited to the specific areas that Congress and the courts have identified as the greatest concern, from a constitutional standpoint. And, number two, the abrogation of sovereign immunity is not limited to the States, or categories of States, where there has been a finding of unconstitutional action. So, we do think that that would be a sufficient basis to invalidate this statute's abrogation of sovereign immunity, but we also think that the statute is not at all congruent with the requirements of the Constitution. And, as --
04-1203 +++$+++ 15386 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. --
04-1203 +++$+++ 15387 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I said, I think there are four reasons for that.
04-1203 +++$+++ 15388 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Schaerr, before you go on, may I just ask you one question on the point that you made -- and you made it in the brief -- about the failure to establish a -- some kind of a history of unconstitutional action in this particular State? Do I understand you to claim that that is a -- that a record of some sort must be made by Congress? Or can a record of that sort be made in the courts, in the course of litigation, as a predicate for a particular lawsuit like this one?
04-1203 +++$+++ 15389 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, City of Boerne and other courts -- other decisions of this Court say that, to be a valid exercise of Congress's Section 5 authority, it has to be a response to a record of constitutional violations.
04-1203 +++$+++ 15390 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right, but Congress --
04-1203 +++$+++ 15391 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And it's hard for me to --
04-1203 +++$+++ 15392 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- but Congress normally operates on a -- on a national scale --
04-1203 +++$+++ 15393 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ True.
04-1203 +++$+++ 15394 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- so that, I mean, we -- I guess, we would normally say, "Well, you can show 40 States out of 50 were in trouble. That's probably good enough to get you across the line, at least." But you're not saying that. So, are you saying that Congress has got to make the record with respect to each individual State?
04-1203 +++$+++ 15395 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I'm not claiming that Congress necessarily has to make the record, but I believe the record has to have been created before Congress acts; otherwise, the --
04-1203 +++$+++ 15396 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, it could be done --
04-1203 +++$+++ 15397 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- legislation isn't --
04-1203 +++$+++ 15398 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- it could be done --
04-1203 +++$+++ 15399 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- a response --
04-1203 +++$+++ 15400 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- in the litigation of this case, then. There could be a trial record of prior violations.
04-1203 +++$+++ 15401 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I -- I don't think the record in this case would satisfy it, because this -- because --
04-1203 +++$+++ 15402 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but my question is, Where does the record have to be made? Does Congress have to make it, on a State-by-State basis, or may that record be made in the course of a trial in a particular State as a predicate for subjecting that State to liability in this instance?
04-1203 +++$+++ 15403 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, this Court's decisions suggest that the record has to at least have been within Congress's awareness at the time the statute was passed.
04-1203 +++$+++ 15404 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So that Congress could have known this, whether they specifically adverted to it, or not. That would be sufficient.
04-1203 +++$+++ 15405 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's correct. Again, four reasons why Title II is not congruent with the -- with the requirements of the Constitution. First, as in Garrett, the substantive accommodation duty imposed by Title II far exceeds the requirements of the Constitution. And to see why, we need look no further than Mr. Goodman's complaints that are in the Joint Appendix, the Government's Addendum C, and the Justice Department's implementing regulations, which are found at 28 C.F.R. Section 35.130(b). And if you -- if you look at Mr. Goodman's complaint, yes, there are some allegations there that obviously raise constitutional issues, but there are a lot of allegations that clearly state a claim under the Justice Department's interpretation of Title II, but, equally clearly, don't raise constitutional issues. For example, on page 65, he has a claim seeking to make the TV lounge and other entertainment facilities wheelchair accessible. Pages 53, 57, and 82, he makes a claim for better access to recreation facilities, rehabilitative exercises, and physical therapy. At page 64 of the Joint Appendix, he makes a claim to force the State to install wheelchair-accessible bathrooms.
04-1203 +++$+++ 15406 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I'm saying this to help you. I'd love to get reason two. I'm wondering -- [Laughter.]
04-1203 +++$+++ 15407 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
04-1203 +++$+++ 15408 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even if they're bad, why aren't the other ones good?
04-1203 +++$+++ 15409 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in order to abrogate the State's sovereign immunity, there has to have been a valid exercise of Congress's power, and there has to be a statute that represents a valid exercise of that power; otherwise, there's no basis for subjecting the States to liability. So, I don't think it's enough just to say, "Maybe there -- maybe there is an Eighth Amendment claim here that's legitimate, and maybe, therefore, in this case, the State's sovereign immunity can be abrogated." It has to be done pursuant to a legitimate exercise of Congress's power. Reason number two, Justice Kennedy, is that, as in Boerne and Garrett, even where constitutional issues are implicated, Title II effectively imposes heightened scrutiny on many decisions that are subject to rational-basis review under the Constitution -- for example, access to the law library, religious services, associational rights, those sorts of things. And that, I think, is the key distinction between this case and Lane and Hibbs. And so, as the Court put it in Garrett, even with the undue-burden exception, the statute makes unlawful a range of alternative responses that would be reasonable under the Constitution, but would fall short of imposing an undue burden on the employer. Number three, as in Garrett, Title II prohibits standards and criteria that have a disparate impact on the disabled, even though that obviously wouldn't be enough to establish a constitutional violation if the disabled were a suspect class. And, again, the Court need only look at the Justice Department's regulations to see how they impose a disparate-impact requirement. And, fourth, again, as in Kimel and Garrett, Title II reverses the burden of proof. As the Court held in Garrett, under the Constitution, classifications based on disability are prima facie --
04-1203 +++$+++ 15410 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why isn't all that true of Lane? Everything you've said is also true of the prophylactic part of Lane. I mean, I've never heard that people took seriously -- though maybe they should have -- but, before the ADA, I have never heard there was a constitutional right of a disabled person to go to a courthouse on the second floor. There were second-floor courthouses all over the country. I don't know that was true of the bathrooms. I don't know it was true of a lot of things in courthouses. So, I think your argument could be made in schools, courthouses, all over the place. And I take it that Lane said, "Prophylaxis" -- whatever the word is -- "of that sort" -- [Laughter.]
04-1203 +++$+++ 15411 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "is fine under Title II, given a core of constitutional violations." So, how do you distinguish them that?
04-1203 +++$+++ 15412 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think it -- one of the ways is the one -- is the one I just mentioned a -- mentioned a minute ago. It's -- Lane was certainly dealing with rights that have been considered by --
04-1203 +++$+++ 15413 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You mean --
04-1203 +++$+++ 15414 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the Court --
04-1203 +++$+++ 15415 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- beyond a --
04-1203 +++$+++ 15416 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to be --
04-1203 +++$+++ 15417 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the average public, you had a constitutional right? I mean, you might have. I might be surprised. But, interesting.
04-1203 +++$+++ 15418 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I --
04-1203 +++$+++ 15419 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The average person could have brought a lawsuit, a person in a wheelchair, and said, "All the courthouses in this country, or in this county, are on the second floor, and moreover the bathrooms -- I need a special bathroom," and they would have won without the ADA. Why did we need the ADA, then?
04-1203 +++$+++ 15420 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm not sure the claim -- I'm not sure, Justice Breyer, that the claim of the person who wanted access to the courthouse to serve as a reporter was necessary to the result in Lane in all of that.
04-1203 +++$+++ 15421 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ah. Ah, you're saying -- I -- what I just heard was, it's -- the reporter just was a stand-in for the average person, that the average person had these constitutional rights, which may have been a --
04-1203 +++$+++ 15422 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that would be one way of understanding it, though not the only way. Thank you.
04-1203 +++$+++ 15423 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Schaerr. General Clement, you have four minutes remaining.
04-1203 +++$+++ 15425 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. Before I say anything else, I want to just clarify that the scope of the Rehab Act and Title II is really coextensive. Mr. Schaerr made a reference to the fact that you need intentional conduct under the Rehab Act. I think that was true for a while in the lower courts with respect to damages claims. I think after this Court's decision in Gebser, in the context of damages claims, the lower courts have generally required deliberate indifference both in the Rehabilitation Act context and in the Title II Act context, to the extent they've reached the issue. But with respect to the substantive obligations, they really are identical. And I do think that's important, in a couple of ways. In particular, I think it's worth remembering here that the damages remedy in Title II -- and this is different than Title I, where there was a specific provision for back-pay -- but in Title II, the damages remedy is just an incorporation of the damages remedy available under the Rehab Act, which, in turn, incorporates Title VI and Title IX remedies. And those, of course, are entirely judge-made. And so, one of the things this Court recognized in Gebser, in deciding there had to be deliberate indifference for a compensatory-damages claim, is, this Court said, the judge-made nature of those remedies gives the court a particularly free hand in making those remedies make sense, in terms of the statute, and, I would think, a fortiori, in terms of the Constitution. So, if --
04-1203 +++$+++ 15426 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ General, when you -- earlier, you told us that this doesn't add much to the Constitution, in Turner versus Safley, and then we hear about access to the TV lounge, which doesn't sound like a constitutional deliberate-indifference Eighth Amendment claim. I mean, if it's important to us how much of this applies, how do we address that issue?
04-1203 +++$+++ 15427 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, let me address the specter of all these claims for TV access, because I do think that that's something that can be taken care of in any number of respects. One is, a sensible application of Turner-type principles to the reasonable-modification standard can certainly be done in a way to weed out those claims. I also think -- especially given Justice Kennedy's principal concern with damages, I think here's an area where the PLRA is particularly helpful, because I don't know what kind of physical injury you're going to be able to show to being denied access to the TV room. And since that's what you need to show under the PLRA in order to recover any damages for mental and emotional suffering that I suppose you could try to bring a claim for emotional suffering for not seeing TV -- I'm not sure which way that would cut -- but, in any event -- [Laughter.]
04-1203 +++$+++ 15428 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I think, in those contexts, the PLRA is the gateway you need to some physical injury, so I think that's going to help weed these out as a matter of damages claims. And so, I think that's going to have a helpfulness, too. Also, I think, in some -- in some sense, you can't lose sight of the fact that perhaps the reason that somebody's being denied access to the TV room is because they're in a wheelchair on the second floor, and the TV room and the law library and the religious services and everything else they need in the prison is on the first floor. And, in those contexts, it may be an appropriate degree of prophylaxis. But I guess what I would say is, I would think that this Court would want to interpret the PL- -- - I'm sorry, would want to interpret Title II in a way that avoids constitutional problems, rather than in a way that engenders it. And so, to the extent the access to the TV room is critical to the constitutionality of the statute, I think the reasonable-modification standard provides plenty of tools to apply Turner-type principles and ameliorate the constitutional problems. I mean, if you compared this case with Cutter against Wilkinson from last term, there you had a statutory strict-scrutiny standard that was specifically directed at the prisons in one other context. And, nonetheless, this Court said, "That can be applied with Turner deference-type principles." Here, you have a statute that applies broadly, and I would think it would be a very easy act of interpretation and constitutional avoidance to say that, "In the prison context, we're going to interpret in a way that avoids constitutional difficulties." If I could try to address just one or two specific questions -- Justice Souter, you asked about the practical experience of the Federal Government. And, as we point out in our opening brief, at page 45, it's been less than 1 percent of our litigation, and less than 2 percent of our compliance cost. Thank you, Mr. Chief Justice.
04-1203 +++$+++ 15429 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General. The case is submitted.
04-1244 +++$+++ 15434 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first today in Scheidler versus National Organization for Women, and Operation Rescue versus National Organization for Women. Mr. Untereiner.
04-1244 +++$+++ 15436 +++$+++ FALSE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: In 2003, this Court, to all appearances, brought this case to an end by holding that all of predicate RICO counts found by the jury must be reversed, that the liability judgment must be reversed, and that the injunction must be vacated. On remand, however, a panel of the Seventh Circuit found a way to keep this case alive. It held that 4 of the 121 RICO predicates somehow survived this Court's decision, and it strongly suggested that the Hobbs Act punishes acts or threats of physical violence that have no connection to either robbery or extortion. Today, we are asking this Court to reverse the erroneous decision below and remand with very explicit instructions that judgment be entered in favor of Petitioners. Reversal is warranted because of three separate legal errors made by the Seventh Circuit. First, the lower court failed to obey the clear holdings and remand instructions of this Court. Second, the Seventh Circuit erroneously held, in conflict with two other Circuits, that the Hobbs Act plausibly can be read to cover freestanding acts or threats of physical violence. And, third, the Seventh Circuit erred in its previous decision, in 2001, in holding that the racketeering law, RICO, authorizes private injunctive relief.
04-1244 +++$+++ 15437 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Counsel, if we were to agree with you on any one of the three questions, would that end the case?
04-1244 +++$+++ 15438 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Justice O'Connor. Because of what the Seventh Circuit also said, that a new trial is not in the cards and the damages verdict is gone and nothing more remains to be done except for the two issues that it outlined, that's correct. If the Court rules in our favor on any issue, the case is over. Let me turn to our first point. The Seventh Circuit's decision is inconsistent with this Court's previous holdings. This Court's 2003 opinion left no doubt that, quote, "all," unquote, of the RICO predicates must be reversed. But --
04-1244 +++$+++ 15439 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but there was a theory that was put to the jury -- and it's right there on the special interrogatories -- one category was violent acts that obstruct commerce with no connection at all to extortion. That was there. And I have a question about your characterization of what the Seventh Circuit did. It was puzzled. It says, "Extortion, they all go." But here are these four that don't involve extortion, and there's no ruling from the Court on those. Was the Court supposed to assume that the Court made a question -- decided a question of statutory interpretation by silence?
04-1244 +++$+++ 15440 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. No, Justice Ginsburg, but the argument was made in this Court, at the petition stage the last time around, that those four counts were, in fact, included in the petitions. At that time, of course, there was no contrary authority. The Yankowski opinion of the Ninth Circuit made clear, and I think the language of the Hobbs Act makes clear, that freestanding acts or threats of violence are not covered. So, we argued, at the petition stage, that those counts were covered. And then, at the merits stage, the Petitioners asked this Court to reverse and remand for entry of judgment in our favor on all claims and all counts. The Respondents, at that point, did not argue --
04-1244 +++$+++ 15441 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was there any argument on the merits as to those four counts?
04-1244 +++$+++ 15442 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Stevens.
04-1244 +++$+++ 15443 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. Yes. Is it conceivable that we overlooked that point?
04-1244 +++$+++ 15444 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we take the Court to mean what it -- what it says.
04-1244 +++$+++ 15445 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if I just -- do you think it's conceivable that we just didn't realize those four points were at issue?
04-1244 +++$+++ 15446 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it's possible. But if the Court did overlook those, I think that would have been something that should have been raised in a rehearing petition in this Court.
04-1244 +++$+++ 15447 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And do you think we resolved the statutory construction issue that you're now arguing very carefully at this time?
04-1244 +++$+++ 15448 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's no indication, in the court's opinion, that it resolved it. It may have assumed that we were right, because we made the argument at the --
04-1244 +++$+++ 15449 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They may assume it --
04-1244 +++$+++ 15450 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- petition stage --
04-1244 +++$+++ 15451 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- but there's nothing in the opinion to give any --
04-1244 +++$+++ 15452 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. That's correct, Justice Stevens.
04-1244 +++$+++ 15453 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ If it's possible, at least, that we just overlooked that aspect in the issuance of our opinion, would it be more helpful to move on to the other two questions at issue here, since they would be determinative? It's --
04-1244 +++$+++ 15454 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd be happy to --
04-1244 +++$+++ 15455 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ -- it's disturbing to think that some court below deliberately was trying to defy what this Court said. And I'm not sure there is any indication of that. It may have thought that those issues -- those other acts were overlooked, and, therefore, they had some right to deal with it. But I wonder if we shouldn't focus on the other two legal issues here.
04-1244 +++$+++ 15456 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd be happy to move on, Justice O'Connor, to those two issues. Our second argument is that the Hobbs Act does not punish freestanding acts or threats of violence. By "freestanding," we mean unconnected to either robbery or extortion. And I think that's apparent from the language of the Hobbs Act, which has three clauses. And the third clause covers acts or threats of violence, quote, "in furtherance of any plan or purpose to do anything in violation of this section," unquote. So, there needs to be a connection. There needs to be a violation of this section. And our position is that that refers back to the principal offenses under section 1951, robbery or extortion. Now, the Respondent's position is that the mere act of obstructing commerce, or affecting commerce, or, I suppose, even delaying commerce, is a violation of the Hobbs Act. And I don't think it's possible to read the statutory language that way. So, we think that argument is clearly foreclosed. Now, if there's any doubt about that, based on the language of the Hobbs Act, as amended in 1948, one need only look back to the 1946 version of the Hobbs Act, as originally passed. And there, it -- there's no debate that Congress intended to cover acts or threats of physical violence only if undertaken in furtherance of a plan or purpose to commit robbery or extortion. So, Respondent's position rises or falls on the proposition that in 1948, when Congress recodified and revised all of Title 18 of the U.S. Code, it dramatically expanded the Hobbs Act. This Court, in reviewing revision and recodification statutes, applies special rules of construction. It requires a clear statement -- or clear expression of intent to make a substantive change; and, if there isn't one, it assumes that no substantive change was intended. If you look at the revisor's notes to section 1951(a) in the 1948 revision, it's clear that there is no intent to make any substantive change. So, I think the Court really doesn't need to go any further on that second issue to rule in the Petitioner's favor.
04-1244 +++$+++ 15457 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The question is whether the Court should rule on it, as in a matter of first decision. We are a Court of review. There was no determination of whether the Hobbs Act included such a category in the Seventh Circuit. So, the difficulty, the impediment to addressing your position is that however strong it may be, it wasn't resolved below, so why shouldn't we follow the natural order that first the District Court speaks, and then the Court of Appeals, and then it comes here?
04-1244 +++$+++ 15458 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, I understand the concern, but the Seventh Circuit did everything but resolve the issue. It said it wasn't resolving the issue, but it -- at the same time, it said that it rejected our argument based on the rule of lenity. It rejected our argument based on the over-federalization of State crimes. It said that both -- it rejected our plain-language argument. It went on and on to reject all the same arguments we're making in this Court. So, I think if the case were remanded to the District Court --
04-1244 +++$+++ 15459 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Excuse me. How could the -- how could the Court of Appeals not have resolved this issue? How could it possibly have rendered its judgment without resolving this issue?
04-1244 +++$+++ 15460 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what the -- what the Court --
04-1244 +++$+++ 15461 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did you raise this issue below?
04-1244 +++$+++ 15462 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, we did, Your Honor. We raised it both in the -- at the rehearing petitions in the Seventh Circuit and in the initial appeal. It did resolve the issue, insofar as it held that the Hobbs Act may plausibly be read to cover freestanding acts for threats of violence. And that holding is in conflict with the decision of the Ninth Circuit and the Sixth Circuit.
04-1244 +++$+++ 15463 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Excuse me. Is that how we apply statutes, that if they may plausibly be read a certain way, that's what they mean?
04-1244 +++$+++ 15464 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that is what the --
04-1244 +++$+++ 15465 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't understand how that's a resolution of the question.
04-1244 +++$+++ 15466 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Seventh Circuit went out of its way to say it was not finally resolving the question. But, Justice Scalia, it, again and again, went through our arguments and rejected them. And then, at the end of its opinion, it said it would be better to read the statute at -- take the statute at face value, and that, it suggested, was what Respondent's position was. So, I think it went as far as it possibly could to resolve the question and reject all of the arguments that are being made here. So, I think it -- to go back to the District Court, it would be a foregone conclusion, and it would just result in further delay. This case has gone on for almost --
04-1244 +++$+++ 15467 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I'm with you --
04-1244 +++$+++ 15468 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- 20 years.
04-1244 +++$+++ 15469 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- up to the point where you say it went as far as it possibly could. As Justice Scalia indicates, why didn't it say, "This is the way the Act must be interpreted," period? So, it didn't go as far as -- I'm just quibbling with your -- I'm just quibbling with your statement that it went as far as it possibly could. I don't think it did. That's the problem.
04-1244 +++$+++ 15470 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, yes, it did leave open the possibility that a court might come to the opposite conclusion. But I think if you're the District Court reading the opinion of the Seventh Circuit, I think it's clear which way you're going to have to come out.
04-1244 +++$+++ 15471 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why?
04-1244 +++$+++ 15472 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We got you off of --
04-1244 +++$+++ 15473 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Were you --
04-1244 +++$+++ 15474 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We got you off of your first point, but I'd like to just loop back to that for a minute, at this point. Is this imprecision, this ambiguity, grounds for our reading -- our insisting on reading our earlier remand and judgment literally and saying that there are no predicate acts -- there are no predicate acts that support this judgment?
04-1244 +++$+++ 15475 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1244 +++$+++ 15476 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do -- is there some prudential argument for us not to reach this issue and just insist on the wording of our earlier mandate?
04-1244 +++$+++ 15477 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Court could certainly come out that way on prudential grounds as a reason to avoid deciding a Hobbs Act issue. But, in our view, the Hobbs Act question is a fairly easy and straightforward one. And the Seventh Circuit's opinion is going to create mischief if left untouched.
04-1244 +++$+++ 15478 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm concerned about your characterization, not only of suggesting that there was some attempt to force a particular decision, but I'm reading the Seventh Circuit's remand to the District Court. It went through your argument, which it said was a substantial one, that no change was intended in the codification. And it said, "While these revisions were intended to be formal stylistic changes, it is not beyond the realm of the possible that the revisers may have made certain substantive changes." That doesn't sound like they were ruling on it definitively, but they were tipping their hand. "Not beyond the realm of the possible." That was --
04-1244 +++$+++ 15479 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Seventh Circuit did everything it could to make it seem like a plausible issue, as opposed to a very clear issue that should be resolved in our favor. It went out of its way to do that.
04-1244 +++$+++ 15480 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't understand how they -- how they could dispose of the case without resolving that. That's my puzzlement.
04-1244 +++$+++ 15481 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1244 +++$+++ 15482 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How -- I mean, can we do that in a case that comes up here, and just say, "There are good arguments on both sides, it's quite plausible," and remand the case without resolving the issue? [Laughter.]
04-1244 +++$+++ 15483 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They asked the District Court to resolve it. They said the District Court should resolve it in the first instance, and then they would review it, presumably.
04-1244 +++$+++ 15484 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Justice Ginsburg. But I do think a premise of the remand for further proceedings in the District Court is that it's plausible to read the statute this way. And I think the Court could, and should, reverse that aspect of the Seventh Circuit's decision.
04-1244 +++$+++ 15485 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course, the reason they said it was plausible is that -- and you may well be right, on the bottom line, and the Government agrees with you, but there are -- there's a redundancy in the statute. There's a phrase in there that could be taken out, and the statute would have exactly the same meaning, if you're correct.
04-1244 +++$+++ 15486 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't agree that there -- well, perhaps Your Honor could elucidate --
04-1244 +++$+++ 15487 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It seems to me those words -- I forget what the -- "commit threats of physical violence." So, take those words. The statute will have the same meaning.
04-1244 +++$+++ 15488 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that's right. I don't think that's right --
04-1244 +++$+++ 15489 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, really?
04-1244 +++$+++ 15490 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Justice Stevens. I think that that does add something. The argument is being made in this case that those words are superfluous under our reading, but I don't think that's correct.
04-1244 +++$+++ 15491 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What function do they perform? What case would it cover that would not otherwise be covered?
04-1244 +++$+++ 15492 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would cover preparatory acts of violence that do not rise to an attempt. We gave several examples --
04-1244 +++$+++ 15493 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That do not rise to an obtaining?
04-1244 +++$+++ 15494 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, do not rise to an attempt, an attempted extortion or robbery. The example we gave -- we gave several examples in our blue brief. One of them is a defendant who wants to rob a factory and --
04-1244 +++$+++ 15495 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, I see what you're saying.
04-1244 +++$+++ 15496 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and --
04-1244 +++$+++ 15497 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're -- I understand.
04-1244 +++$+++ 15498 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes. If I may, I'd like to turn, in my limited time, to the third question, which is the -- whether RICO authorizes private injunctive relief. And we want to make three basic -- or I'd like to make three basic --
04-1244 +++$+++ 15499 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, we didn't reach that, last time.
04-1244 +++$+++ 15500 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Mr. Chief Justice.
04-1244 +++$+++ 15501 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why, if we -- if we agree with you on the Hobbs Act, I assume you would not have us reach that third question this time, either.
04-1244 +++$+++ 15502 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, there would be no need for the Court to reach that issue this time, either. But I'd like to just say a few words about that provision, because I think we're right on that issue, as well. And the Court can pick any one of these three grounds to rule in our favor. We'd be happy with any of them. Our principal argument on RICO is that RICO's civil-remedies provisions were drawn from the antitrust laws, from the Clayton Act and from the Sherman Act before it. In fact, the treble-damages provision of RICO is taken almost verbatim from the Clayton Act and Sherman Act provisions. This Court, in a long line of cases, held that the Sherman Act does not authorize private injunctive relief. And that holding -- those holdings were based on the provisions on which these RICO remedial provisions were modeled. And so, we think when Congress took that language, which is essentially identical, at least in the -- in the -- in the treble-damages provision, from the antitrust laws, that it was entitled to assume that they would be read the same way in RICO.
04-1244 +++$+++ 15503 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, of course, at the time they did that, the Clayton Act had already been passed.
04-1244 +++$+++ 15504 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, Justice Stevens. But I think those provisions were carried forward, and Congress -- and this Court's cases, again and again, have relied on Congress's use of the -- of the Clayton and Sherman Act models. You've said that's a dominant strand in the legislative history.
04-1244 +++$+++ 15505 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Your argument's a little inconsistent with the Franklin case, though.
04-1244 +++$+++ 15506 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry.
04-1244 +++$+++ 15507 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Gwinnett -- Franklin versus Gwinnett County.
04-1244 +++$+++ 15508 +++$+++ TRUE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, we think that Franklin is distinguishable. There are two lines of this Court's cases. Franklin falls into one line. That's a case where this Court finds a -- or acknowledges a private right of action, but where, necessarily, there's no guidance from Congress of what the remedies are. And in that situation, the Court does apply a presumption that all available remedies are -- will be -- will be imputed. In this -- in the second line of cases, which is what this case is all about, Congress sets forth a detailed remedial scheme. And in those cases, I think it's inappropriate -- and this Court has said that repeatedly -- for courts to add remedies to those schemes which Congress is -- has selected. Now, this is especially true in this case, because Congress relied on those antitrust precursors. And, beyond that, section 16 of the Clayton Act, which expressly authorizes private injunctive relief, is -- has no analog in RICO. Now, Congress thought about including a provision like section 16 of the Clayton Act when it considered RICO. Again and again, proposals were made, but Congress did not adopt those proposals either during the consideration of RICO or shortly thereafter. If there are no further questions, I'd like to reserve the balance of my time for rebuttal.
04-1244 +++$+++ 15509 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. Ms. Blatt.
04-1244 +++$+++ 15511 +++$+++ FALSE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: It is the position of the United States that the physical-violence clause of the Hobbs Act requires an intended robbery or extortion, and that private parties, under RICO, cannot obtain injunctive relief.
04-1244 +++$+++ 15512 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you not --
04-1244 +++$+++ 15513 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Would you tell us what -- which one of these questions, in your view, we ought to address, first and foremost? If the answer to any of them is favorable to Petitioner's position, I guess that's the end of the case.
04-1244 +++$+++ 15514 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. We think what would be appropriate is to recognize that the -- this Court's decision last time around did contain a sweeping statement at the end that all the predicate acts must be reversed. At the same time, the issue of the physical-violence clause was not briefed by the parties, it was not discussed in this Court's opinion, it was not discussed in the Seventh Circuit's opinion. And "law of the case" type principles are discretionary, and this Court has the discretion to reach the two other issues in the case. Now, the RICO issue is more squarely presented, because there's an actual holding by the Seventh Circuit on that point. It's also an issue on which the Circuits are divided. It's important and recurring, and it's been before this Court twice. At the same time, the Court also has discretion to clean up, or clarify, the Hobbs Act issue. There was a remand. And although there's no holding by the Seventh Circuit, there was a remand that was predicated and based on an assumption that the plaintiffs had raised at least a substantial question. And this Court has discretion to say that was an error of law, because, under the plain language, the physical-violence clause is linked to robbery or extortion. That's plain on the statute, because it requires that the physical violence be in furtherance of a violation.
04-1244 +++$+++ 15515 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Even though two U.S. attorneys, years back, did predicate cases on there being a discrete crime of obstructing commerce through violent means.
04-1244 +++$+++ 15516 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. And those prosecutions were inconsistent with the written guidance of the Department of Justice in a longstanding interpretation of the Hobbs Act, at least since 1965, that it required an intended robbery or extortion.
04-1244 +++$+++ 15517 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Blatt --
04-1244 +++$+++ 15518 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
04-1244 +++$+++ 15519 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- can I identify a concern? I'd like you to help me out on it. I -- that language, if you construe it the way the other side does, it would cover certain violent conspiracies that would merely obstruct interstate commerce that we could all be concerned about today. Are there other criminal statutes on the book that fill that gap?
04-1244 +++$+++ 15520 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. 18 U.S.C. 2332(b), subsection (g), is a laundry list of Federal statutes, and it's a good source of reference for the type of Federal statutes that cover violence where there's a distinct Federal interest.
04-1244 +++$+++ 15521 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that you're saying, in substance, that you don't need to read the Hobbs Act the way they do in order to protect the public from the kind of harms that the -- they would read the statute as covering.
04-1244 +++$+++ 15522 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. There's a lot of statutes on the books that apply to bombing in public places, violence against communication facilities, computer, transportation, energy, airports, any kind of mass transportation. And that -- 18 USC 2332 -- it's a long list of statutes. There's also the arson statute and the bombing statute, the use of any explosives in a -- in a -- in a facility that's used in interstate commerce. And the Government has brought thousands and thousands and thousands of Hobbs Act prosecutions, and, but for those two, the only two that we can identify, all of our prosecutions have been linked to robbery or extortion. And if I could address the superfluous point, we don't think the clause is superfluous either, for two reasons. It applies to a defendant who injures innocent bystanders during a robbery. Now, the defendant has committed the crime of robbery, but he's also committed the separate crime of using violence against any person in furtherance of that robbery. So, there could be cumulative punishment based on that offense, and there would be --
04-1244 +++$+++ 15523 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What do you mean? It's a separate --
04-1244 +++$+++ 15524 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- two separate offenses.
04-1244 +++$+++ 15525 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- a separate offense?
04-1244 +++$+++ 15526 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's a separate offense for --
04-1244 +++$+++ 15527 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you charge two counts for violating the same section?
04-1244 +++$+++ 15528 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, because there's two distinct harms. There's not only the business, as the victim of the robbery, but there's the innocent bystanders who were injured or killed during the course of that robbery, and that would be two separate -- and then there's another way it's not --
04-1244 +++$+++ 15529 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Two separate violations, each of which violates the same statute?
04-1244 +++$+++ 15530 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that's right.
04-1244 +++$+++ 15531 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it -- you just -- on your list, I had the impression, but tell me if I'm right or wrong, that there's a specific statute dealing with abortion clinics now, though there wasn't when this case began.
04-1244 +++$+++ 15532 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, the --
04-1244 +++$+++ 15533 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that if --
04-1244 +++$+++ 15534 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- FACE Act.
04-1244 +++$+++ 15535 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- Operation Rescue did the same kind of thing now that they did then, the Petitioners in -- the plaintiffs in this case would be able to get relief under that statute. Is that right or wrong?
04-1244 +++$+++ 15536 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely correct. The FACE Act, which was passed in 1994, gives private parties a right for damages and injunctive relief for blocking access to clinics. That would -- that would cover this specific case, and then there's the more general statutes I was speaking about earlier. But there is a specific right to injunctive relief, and I think the plaintiffs in this case tried to add claims under the FACE Act, but they were -- they were denied the ability to do that. The second way it's not superfluous is the example given by Petitioners, in that it applies to a defendant, for instance, who tries to enlist another person in a robbery, but the neighbor, or the -- excuse me, that person just refuses. The physical-violence clause would apply to that situation regardless of whether that conduct also qualifies as an attempt.
04-1244 +++$+++ 15537 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Blatt, your time is almost over, so, on the injunction part, what remedies are available to the United States under your reading of the provision? Injunctive relief, yes. What about -- is there any monetary relief that the United States can seek under RICO?
04-1244 +++$+++ 15538 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, 1964(a) addresses equitable relief, and the Government can get things like disgorgement under (a). But as far as damages are concerned --
04-1244 +++$+++ 15539 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1244 +++$+++ 15540 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- no. This Court held, in the Cooper case, which is an antitrust case that was talked about in the Flamingo decision recently, the United States is not a person who is able to sue under the antitrust laws, because -- the general background principle that the United States is not a person. And we think it's highly relevant that, after this Court repeatedly held that private parties cannot get injunctive relief, that the United States cannot get damages under the antitrust laws, Congress, in the Clayton Act, passed two express provisions: a Government damages action -- that was in 1955, and now it's a treble-damages action -- as well as an express private injunctive action. And, thus, there was this menu of remedies in the antitrust laws of express Government equitable, express Government damages, express private treble damages, and then Government damages. But Congress, in RICO, only picked up two of them. It picked up an express, a right for the attorney general to seek injunctive relief and other equitable relief, and it picked up an express right for private parties only to seek treble damages. In light of the holding after holding after holding, we identified six cases that were -- that were rendered before the passage of RICO, and the Cooper decision, which said the Government cannot seek damages. We think it's very clear that when Congress borrowed from the antitrust laws, but did not pick up those two express rights, that the governing principle is that when Congress borrows a statute that's been definitively construed, Congress adopts that judicial construction along with the statute. And it's particularly relevant because of those two express provisions. And RICO is -- just contains that structure that was there in the Sherman Act, with the express public equitable action and the express private treble-damages action. If there are no questions, we'd ask the Court to, if it wants, to reach --
04-1244 +++$+++ 15541 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I have -- just have one question. If we were to adopt the Petitioner's first suggestion that we should simply have a strict reading of our mandate, would that cause problems, so far as people interpreting our precedent and indicating that, by implication, we've reached this Hobbs Act question?
04-1244 +++$+++ 15542 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't think so. I think in the -- I don't think so. The Court could apply just straightforward "law of the case" principles and say, "Regardless of whether we actually reached the four predicate acts, our judgment spoke clearly that the injunction had to be vacated."
04-1244 +++$+++ 15543 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Regardless of whether we knew what we were doing, we said it. [Laughter.]
04-1244 +++$+++ 15544 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that's why we think it's appropriate for the Court to say, just like the Court did in the recent per curiam Eberhart, that generally courts are supposed to follow this Court's mandates, and they're supposed to articulate their concerns to facilitate resolution by this Court, and then leave it up to this Court to clarify an earlier decision.
04-1244 +++$+++ 15545 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Except if they think we didn't know what we were doing. I --
04-1244 +++$+++ 15546 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that the Court of Appeals --
04-1244 +++$+++ 15547 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- they ignore it if they -- if they think that we didn't know what we were doing.
04-1244 +++$+++ 15548 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they could have --
04-1244 +++$+++ 15549 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Only when it's perfectly clear that we didn't know it. [Laughter.]
04-1244 +++$+++ 15550 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We do think that the judgment did sweep more broadly than the circumstances --
04-1244 +++$+++ 15551 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You don't think there's even an arguable basis for saying we resolved the statutory question that's presented now, do you?
04-1244 +++$+++ 15552 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, because usually the Court doesn't decide important -- the construction of a Federal statute, a Federal criminal statute, without discussing it. It was -- I don't want to say "buried in footnotes," but it was mentioned in the footnotes at the petition stage the second time around, and then it dropped out of the case. And even the United States didn't discuss it --
04-1244 +++$+++ 15553 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it's not mentioned in the opinion.
04-1244 +++$+++ 15554 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's not mentioned in the opinion. It's not mentioned in the briefs, at the merits stage. It was not mentioned by the Seventh Circuit. At the same time, the court, at the end, did say that all of the predicate acts had to be reversed. Thank you.
04-1244 +++$+++ 15555 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Ms. Blatt. Mr. Chemerinsky.
04-1244 +++$+++ 15557 +++$+++ FALSE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Good morning, Mr. Chief Justice, and may it please the Court: The Seventh Circuit did exactly the right thing in this case. It sent the case back to the District Court and asked the District Court to determine whether an injunction could remain, based on the four counts of physical violence and threats of violence. It asked the District Court to determine whether or not the Hobbs Act applies to physical violence and threats of violence apart from extortion and robbery. This made great sense. No court, in this long litigation, had yet discussed the meaning of the Hobbs Act and whether it applies to physical violence and threats of violence apart from extortion and robbery. There's already been a good deal of discussion about what this Court meant in its prior decision. I think you find clarification if you look at page 399 of your prior decision, where the Court lists the predicate acts that it was considering. And if you add up the numbers, it adds to 117 predicate acts, but if you go to the jury's verdict, the special interrogatories, they found 121 acts. What was omitted from the Supreme Court's listing last time were the four counts of physical violence and threats of violence in violation of the Hobbs Act.
04-1244 +++$+++ 15558 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's true, but don't you have the further difficulty that we didn't merely reverse with respect to the -- to the Hobbs Act violations, or to the listed ones. We made it clear. We said, expressly, that the judgment had to be reversed, which seems to sweep everything within it, doesn't it?
04-1244 +++$+++ 15559 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. What this Court did was reverse and remand for further consideration, consistent with the decision of this Court. Since this Court had not considered the --
04-1244 +++$+++ 15560 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, I mean, that's what we always say. And it may be that there is absolutely nothing to do, at that point, except enter judgment for one side and be done with it.
04-1244 +++$+++ 15561 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But this Court has been clear that it only decides the issues that it speaks to. It's not plausible, Your Honor, that this Court was deciding a major unresolved issue of Federal criminal law without ever speaking to the question --
04-1244 +++$+++ 15562 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I think -- I think, you know, your argument is fine, but the trouble is, if the question is, "Did the Seventh Circuit honor the judgment of this Court?" I think there's a pretty good argument that it not -- that it did not, based upon the fact that we, in effect, summed up everything we were purporting to say with the phrase that the judgment itself had to be reversed.
04-1244 +++$+++ 15563 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Except, Your Honor, this Court has said that it doesn't decide issues that weren't presented to it. And if you look at page 397 --
04-1244 +++$+++ 15564 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He's not talking about the deciding of issues; he's talking about reversing a judgment. You don't have to go into what the issues are in order to follow that instruction. The judgment is reversed. And if there were issues that should have been resolved in order to reverse the judgment, and that weren't, it would seem to me that your remedy would not be to say to the Court of Appeals, "Well, the Supreme Court didn't mean what it said," or, "didn't know what it was doing," but, rather, to move for reconsideration here.
04-1244 +++$+++ 15565 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. Rehearing is to issues that were decided by this Court. This Court clearly did not speak to the meaning of the Hobbs Act. And so, it was completely appropriate for the Seventh Circuit to say that this Court considered the issues, in terms of what extortion was about, whether the injunction is permissible under civil RICO. If you look at the --
04-1244 +++$+++ 15566 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you saying you couldn't -- you couldn't file a motion for rehearing on the ground that the Court neglected to address four points that were made very -- you made nothing of them in the -- in the argument or in the briefs. It was almost not considered at all. You mean that when a judgment is issued that is so clearly, in your view, erroneous, you can't come to the Court and say, "The judgment is erroneous, you forgot to address these issues"? I hope you can do that in a motion for rehearing.
04-1244 +++$+++ 15567 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Your Honor, it's not required to present it that way. And I think what's incorrect about your phrasing is, it was Petitioners that did not present this. It was the same Petitioners last time. They presented to this Court the questions as to the meaning of "extortion" and whether injunctions were permissible under civil RICO. In fact, if you look at page 397 of your prior decision, it clearly states that there were two issues presented, what "extortion" means under the Hobbs Act and whether injunctions are permissible under civil RICO. I think it was completely appropriate, then, for Respondents to say this Court didn't deal with the four issues in -- concerning whether violence and threats of violence are separately from the Hobbs Act. And it was then permissible to say to the Seventh Circuit, "These remain as a basis for relief."
04-1244 +++$+++ 15568 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They would have to say not just that. They would have to say, "The court did not deal with those four issues, and, therefore, its judgment was erroneous." They would have to say that in order to -- in order to act the way they did --
04-1244 +++$+++ 15569 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
04-1244 +++$+++ 15570 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- because our judgment was "reverse."
04-1244 +++$+++ 15571 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if this Court had entered judgment for Petitioners, which it could have, then you would be correct. But, instead, what this Court did, as I said, is reverse and remand for consideration. And the Seventh Circuit --
04-1244 +++$+++ 15572 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do we look -- do we -- do we typically enter judgment, ourselves?
04-1244 +++$+++ 15573 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, typically you don't. But it is certainly permissible and possible for this Court to do so.
04-1244 +++$+++ 15574 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When was the last time we did that?
04-1244 +++$+++ 15575 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know the answer to that, Your Honor, other than, of course, as a court, this Court obviously could enter judgment for Petitioners. The fact that this Court said --
04-1244 +++$+++ 15576 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I don't think we would actually enter judgment. We'd -- we might reverse with instructions to have the lower court enter judgment, but we wouldn't enter the judgment ourselves.
04-1244 +++$+++ 15577 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the Court could certainly, and, more likely, would do what you say. It could also affect the judgment --
04-1244 +++$+++ 15578 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The mandate, in this case, remanded, is that what you --
04-1244 +++$+++ 15579 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
04-1244 +++$+++ 15580 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So further proceedings --
04-1244 +++$+++ 15581 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
04-1244 +++$+++ 15582 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- consistent with the opinion.
04-1244 +++$+++ 15583 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And my only point is, since this Court clearly said it was dealing with 117 of the acts, and clearly did not mention the four counts of violence and threats of violence under the Hobbs Act --
04-1244 +++$+++ 15584 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it also said, in the last paragraph, "all of the predicate acts supporting the jury's verdict."
04-1244 +++$+++ 15585 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. And the question, of course, is, What does "all" refer to here? And I would say, if you go back to page 399, it lists the predicate acts that it's referring to and there --
04-1244 +++$+++ 15586 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, it says --
04-1244 +++$+++ 15587 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- are 117 listed --
04-1244 +++$+++ 15588 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "all the predicate acts supporting the jury's finding of a RICO violation."
04-1244 +++$+++ 15589 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Your Honor --
04-1244 +++$+++ 15590 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, it's quite clear what "all" was referring to.
04-1244 +++$+++ 15591 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Chief Justice Roberts, then the assumption would have to be that this Court was deciding the four counts, in terms of violence and threats of violence, even though it wasn't presented in the cert petition, even though it wasn't briefed, and even though it was never discussed in this Court's opinion. And I think it was quite logical for the Seventh Circuit to say the appropriate thing to do is to let the District Court decide whether any injunctive relief was appropriate, based on those four counts; and, if so, what that provision of the Hobbs Act means.
04-1244 +++$+++ 15592 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Chemerinsky, if we turn from what this Court did, or did not, think about last time around to what those four counts were, would I look to find out what were those four acts of violence that remain in the case? I could not find, in any of the papers before us, any specific definition of what those acts of violence were. I mean, the jury was given -- I don't know what -- was it a dozen possibilities? And they found four. But which four, we have no idea.
04-1244 +++$+++ 15593 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Your Honor, that would be a reason why this case should go back to the District Court, because that's the judge who tried the case.
04-1244 +++$+++ 15594 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But he -- but wasn't this tried to a jury? That was a jury that made those findings.
04-1244 +++$+++ 15595 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes --
04-1244 +++$+++ 15596 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the jury is no longer sitting.
04-1244 +++$+++ 15597 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the judge presided over the jury trial, and the judge could identify if there were four acts of violence and threats of violence to obstruct interstate commerce.
04-1244 +++$+++ 15598 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He knows that there were four acts. He knows that he -- under his instructions, the jury could pick 12. How could he know which four the jury homed in on?
04-1244 +++$+++ 15599 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Justice Ginsburg, he doesn't need to know which four. What he needs to determine is, Did the record that was presented to the jury support the finding that there were four acts of violence and threats of violence? And we'd suggest that --
04-1244 +++$+++ 15600 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But does it -- when what turns on that finding is injunctive relief, the judge might very well be influenced by what those particular acts were. He might say one set of four was not adequate to issue this injunction, but another set of four would be. And we just don't know -- we don't know what those acts were. The jury is not to be called back. The Seventh Circuit said "no more evidence." So, if we get down to those four acts, how can we say those are sufficient to uphold an injunction, when we don't even know what the acts were?
04-1244 +++$+++ 15601 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the traditional rule is to interpret the jury's verdict in a way that's most favorable to its conclusion. And so, here what the judge has to decide is, based on the record, were there four acts of violence or threats of violence to obstruct interstate commerce? And we'd suggest it would be quite easy for the judge to identify four such acts.
04-1244 +++$+++ 15602 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you say "most favorable to its conclusion," but did the jury conclude that there should be an injunction?
04-1244 +++$+++ 15603 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, of course, but --
04-1244 +++$+++ 15604 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's up to the judge.
04-1244 +++$+++ 15605 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but the jury --
04-1244 +++$+++ 15606 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, I mean, the principle that you interpret a verdict in the manner most favorable to its conclusion has no application here at all.
04-1244 +++$+++ 15607 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Your Honor, the jury did find, in special interrogatory 4(e), that there was violence and threats of violence and in final interrogatory 8 that it was to obstruct interstate commerce. Also here, remember the judge held a separate hearing after the jury verdict, before issuing injunction. And if, on the basis of the evidence that he heard during the trial and that special hearing, he found four acts of violence and threats of violence, he then has to decide what injunctive relief is appropriate. And, of course, he would also, consistent --
04-1244 +++$+++ 15608 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Excuse me. You mean it's up -- I don't understand that. The judge, in order to issue the injunction, becomes a second fact-finder, and he can find four -- he can pick four out of the twelve, perhaps four that the jury had not picked?
04-1244 +++$+++ 15609 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, since this is an injunction, he is allowed to consider the evidence that he heard, since he was sitting in an equitable matter. And so, there were actually two presentations --
04-1244 +++$+++ 15610 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, he can -- he can actually make a finding. And it -- and it could be that the jury found that eight of them weren't valid, and the judge, in order to issue an injunction, can contradict the jury and say, "You know, I find that other four"?
04-1244 +++$+++ 15611 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, when it comes to injunctive relief, the judge can hold a separate hearing, and that's exactly what happened here. And I believe the issue for the judge on remand would be, Were there four acts of violence or threats of violence to obstruct interstate commerce? And I think the record clearly indicates there were. The judge said, here, "There is enough evidence, to fill this courtroom, of illegal acts by the Respondents."
04-1244 +++$+++ 15612 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the Seventh Circuit in its most recent expression said, "It may well be that the judge will decide that those 4 predicate acts" -- as opposed to 121 going in, 4 -- "were not sufficient to support certainly a nationwide injunction, but perhaps not any injunction."
04-1244 +++$+++ 15613 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. That's why it was appropriate for the Seventh Circuit to remand the case to the District Court, because if the court were to conclude that an injunction is not appropriate, then anything that would be said about the meaning of the Hobbs Act or about civil RICO would then just be an advisory opinion. And that's why this Court, we believe, should also send the case back to the District Court. But if it reaches the meaning of the Hobbs Act or civil RICO, we believe that this is a situation there the plain meaning of the statute clearly controls.
04-1244 +++$+++ 15614 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there anything that -- under your reading of the Hobbs Act, that isn't covered by the FACE Act?
04-1244 +++$+++ 15615 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, yes, Your Honor. The nature of the relief is certainly different under the Hobbs Act than under the FACE Act. Also, of course, at the time this action was brought, 19 years ago, the FACE Act didn't exist.
04-1244 +++$+++ 15616 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I know. But in terms of the -- we now have specific legislation addressed to the specific context. And all of the acts that you're complaining of in the original suit are actionable under the FACE Act, aren't they?
04-1244 +++$+++ 15617 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
04-1244 +++$+++ 15618 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'd like you to get to the meaning of the Hobbs Act.
04-1244 +++$+++ 15619 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir.
04-1244 +++$+++ 15620 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I'll try to focus my own thoughts on this by saying two objections to what you're arguing, related, that when they passed the Hobbs Act, it had a section 2, and section 2 said that, "This is an Act that forbids robbery and extortion, all involving interstate commerce. And robbery/extortion involve property." Then it had a section 5. And section 5 said, "This Act forbids physical violence or threats of violence related to section 2." Now, all that happened since then is, there was a recodification. And the recodification wasn't meant to change anything substantive. Second and related point: Enmons. For 35 years, working people in this country have thought they had a right to strike, free of the Hobbs Act. And your interpretation, as the AFL-CIO points out, will gut the right to strike. Now, those are two strong arguments against you, and I'd like to hear your response.
04-1244 +++$+++ 15621 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you. And I'll address them, first and then second. As to the first point, you correctly quote the 1946 statute, but the 1948 revision was approved by Congress, and it specifically says "robbery or extortion or attempts so to do," comma, "or physical violence or threats of violence." This Court has said, in cases like United States versus Ron Pair, that commas have to be given meaning. This Court, in many cases, such as FCC versus Pacifica, said, "or" must be given meaning. There is --
04-1244 +++$+++ 15622 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, we've also said that we don't assume a substantive change from a recodification.
04-1244 +++$+++ 15623 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Your Honor -- the statute has been approved by Congress. It is that which is authoritative. And this Court has said, in other cases, like United States versus Wells, and State Farm versus Tashire, that revisers notes are often erroneous. This Court has said the cardinal rule of statutory construction is that the plain language must be followed.
04-1244 +++$+++ 15624 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, your argument requires us to assume that Congress intended a substantive change when it recodified the Hobbs Act.
04-1244 +++$+++ 15625 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. This -- my argument is that the plain language makes clear that Congress did enact a substantive change. And, indeed, to interpret the law as Petitioner suggests, would render the words about "physical violence or threats of violence" as mere surplusage. And so, for example, some of the illustrations that were mentioned earlier, one was about the possibility of a planned pride and attempt. But, in a model penal code, section 5.01, it's clear that any substantial step is sufficient for an attempt that --
04-1244 +++$+++ 15626 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Who -- who's enacted the model penal code?
04-1244 +++$+++ 15627 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mention the model penal code as just something that's regarded as an authoritative definition with regard to criminal law. There's many jurisdictions around the country, including at the Federal level, consistently saying a substantial step is sufficient for an attempt. Another example that was mentioned was the subordinate enforcer. But the subordinate enforcer would be likely considered part of a conspiracy or an accomplice.
04-1244 +++$+++ 15628 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Chemerinsky, the problem that I have, and Justice Breyer expressed, is, we have the reviser's notes that suggest, "I was just getting rid of extra words. I was making this a tighter provision." And there's not anything to indicate that Congress considered any change in the substance of the Act.
04-1244 +++$+++ 15629 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, there is almost no legislative history for the 1948 revision. All there is, as you rightly say, is the reviser's notes. But this Court has said that the reviser's notes are not authoritative. And this Court has said, on so many occasions, that --
04-1244 +++$+++ 15630 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But here's a -- the reviser telling us, "I did this, and I did this to clean up the Act, to make it less wordy."
04-1244 +++$+++ 15631 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. But even if that's regarded as authoritative, this Court has so often said legislative history cannot justify ignoring plain meaning. And, given the comma and the word "or" and the fact that, otherwise, the words "by physical violence" would have no meaning --
04-1244 +++$+++ 15632 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me --
04-1244 +++$+++ 15633 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that's the plain meaning.
04-1244 +++$+++ 15634 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- let me talk --
04-1244 +++$+++ 15635 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
04-1244 +++$+++ 15636 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- about the comma. I don't -- I don't -- I don't understand your argument on that point. I mean, it says, "Whoever, in any way or degree, obstructs, delays, or affects commerce or the movement or any article or commodity in commerce by robbery or extortion or attempts or conspires to do so," comma -- that's the comma you're talking about?
04-1244 +++$+++ 15637 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1244 +++$+++ 15638 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "or threatens physical violence to any person or property," but it continues, "in furtherance of a plan or purpose to do anything in violation of this section." Now, the only thing that this section has, prior to that statement, said to be a violation is obstructing/delaying by robbery, extortion, or attempt or conspiracy to robbery or extortion.
04-1244 +++$+++ 15639 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. Two points here. First, it says "a plan." It's clear, there is -- it's a plan to obstruct, interfere, or affect commerce. The others, Your Honor, you quickly skipped over --
04-1244 +++$+++ 15640 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but --
04-1244 +++$+++ 15641 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ "Plan to do anything in violation of this section," which is not just obstructing commerce, but obstructing it by robbery, extortion, or attempt or conspiracy to robbery or extortion.
04-1244 +++$+++ 15642 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. I think that does deprive the comma or the word "or" meaning. And, in fact, it deprives the title of meaning, because the title here can be used when the title makes clear that it's about violence to obstruct interstate commerce. I'd also point out some words --
04-1244 +++$+++ 15643 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's a jurisdictional hook, isn't it?
04-1244 +++$+++ 15644 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When you see something in a criminal statute that forbids "affecting commerce by," that means that Congress wants to prevent the conduct that will follow the words "by," and it needs a jurisdictional hook, so it puts in "affecting commerce." That's how I've always understood the Federal criminal code. Am I --
04-1244 +++$+++ 15645 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1244 +++$+++ 15646 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- wrong in that?
04-1244 +++$+++ 15647 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. Here, what it's saying is that Congress is prohibiting "plans to obstruct commerce by robbery or extortion or physical violence or threats of violence." And, Justice Scalia, when you read the statute to me, some of the words that were skipped over quickly were the words "so to do." Notice it says "with regard to robbery or extortion or attempts to do so," comma. If they meant violence and physical violence to only refer to extortion or robbery, as they did with "attempts," then "so to do" could have been put into that clause, as well.
04-1244 +++$+++ 15648 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is -- what meaning do you give to the phrase "in furtherance of a plan or purpose to do anything in violation of this section"? Under your interpretation, you could just drop that -- drop that phrase completely.
04-1244 +++$+++ 15649 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not at all, because it makes clear that Congress didn't mean, here, to criminalize every act of violence that occurs. It has to be, in order to be actionable, a "plan of physical violence to obstruct interstate commerce." That's why this doesn't apply --
04-1244 +++$+++ 15650 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's not a violation of the section. "Obstructing interstate commerce" is not a violation of 1951.
04-1244 +++$+++ 15651 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. What is a violation of 1951 --
04-1244 +++$+++ 15652 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- is obstructing it by robbery or by extortion or attempt or conspiracy to robbery or extortion.
04-1244 +++$+++ 15653 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I disagree, because I think then it does reduce the words "physical violence or threats of physical violence" to mere surplusage.
04-1244 +++$+++ 15654 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Well, no, because the --
04-1244 +++$+++ 15655 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what do you say to the response --
04-1244 +++$+++ 15656 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ -- the counsel for the Government explained that if, in the course of committing a robbery, some bystander is physically injured, it's covered.
04-1244 +++$+++ 15657 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your --
04-1244 +++$+++ 15658 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ I mean, that's understandable, isn't it?
04-1244 +++$+++ 15659 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. The reason is, if somebody is injured in the course of a robbery, that's already punished as part of the robbery. In fact, the Federal sentencing guidelines make clear that harms that are caused while committing a crime are punished as a part of that crime. You --
04-1244 +++$+++ 15660 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you're --
04-1244 +++$+++ 15661 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- don't need to --
04-1244 +++$+++ 15662 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- convicted --
04-1244 +++$+++ 15663 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- include that language.
04-1244 +++$+++ 15664 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- of the crime, but you cannot be indicted as a separate crime. This makes it a separate offense.
04-1244 +++$+++ 15665 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Your Honor --
04-1244 +++$+++ 15666 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're saying we -- you can use it to aggravate the punishment for some other offense, but this does -- this does something quite beyond that. It says it is a separate offense.
04-1244 +++$+++ 15667 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Your Honor, for every criminal law, injuries that are committed by those who are engaged in the criminal activity are punished as a part of that criminal act. Now, Justice Breyer, your second --
04-1244 +++$+++ 15668 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you say they are punished as a part of the act, but Justice Scalia's point is still true, it only goes to punishment. The way this is written, it may be charged as a separate offense.
04-1244 +++$+++ 15669 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Your Honor, there would be no need to charge a separate offense. If you look at 1951(b) --
04-1244 +++$+++ 15670 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I -- I mean, one is -- I'm attempted to say, "Well, tell Congress that." If they want to create a separate offense, they can do it.
04-1244 +++$+++ 15671 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. If you look at section 1951(b), where it defines "robbery" and "extortion," it already includes "violence" in the definition of "robbery" and "extortion." There would be no need for Congress to separately --
04-1244 +++$+++ 15672 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But isn't the reasonable reading of that, "violence in the course of achieving -- for the purpose of achieving the object in question," as opposed to, in effect, a "by-blow against a bystander"?
04-1244 +++$+++ 15673 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, I don't think so, since the statute defines "robbery" and "extortion," in 1951(b), specifically to include acts of violence, then all the things we're talking about after the crime would already be part of what's prohibited by the statute.
04-1244 +++$+++ 15674 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. --
04-1244 +++$+++ 15675 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could already be charged --
04-1244 +++$+++ 15676 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I want to give you a chance, because you're quite right in thinking that I'm moved, in large part -- or worried, in large part -- not about this language, but about the change in Federal criminal law. And the change in Federal criminal law, if you're right, way beyond this case, would transform virtually every threat of violence made anywhere in the United States into a serious Federal crime. At the least, it would -- and make a major change in threats of violence on the picket line. And those are two aspects of the same thing. And I'm worried about the upsetting of expectations way outside the context of this case and making a major change in Federal labor law, for example.
04-1244 +++$+++ 15677 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me start labor law and then go more generally. Section 1951(c) has a specific provision that makes clear that the Hobbs Act was not meant to change the protection of labor unions. And, in fact, every one of the statutory references in 1951(c) is to a statute protecting labor unions. Enmons specifically says --
04-1244 +++$+++ 15678 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What does it -- 1951(c) says what?
04-1244 +++$+++ 15679 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It lists -- it says "nothing in this statute is meant to alter the protections of," and then it lists a whole number of statutes, and those are all statutes that protect labor unions.
04-1244 +++$+++ 15680 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, but I -- then perhaps I -- that's an old statute, 1951(c), isn't it? Is it something brand new?
04-1244 +++$+++ 15681 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, this is the Hobbs Act.
04-1244 +++$+++ 15682 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah.
04-1244 +++$+++ 15683 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Section 3 --
04-1244 +++$+++ 15684 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. What is it --
04-1244 +++$+++ 15685 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of the Hobbs Act.
04-1244 +++$+++ 15686 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the case that interpreted the Hobbs Act, which is Enmons --
04-1244 +++$+++ 15687 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-1244 +++$+++ 15688 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- seems to rely, for the labor-union exemption, on the fact that a threat of violence in an effort to obtain legitimate wages is not within the Act. But if we read "legitimate wages" out of the Act, then I guess we would be left with "the threat of violence."
04-1244 +++$+++ 15689 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. And the reason is, Enmons says there's a special legislative history of the Hobbs Act specifically about labor. And Enmons concluded that if the violence is part of a strike to pursue lawful union activities, it is not actionable under the Hobbs Act. Nothing that this Court would decide here would change that specific protection of unions, one that's codified in the statute. As to your former question, nor would ruling in favor of Respondents here change the criminal laws you suggest. The statute would only apply to a plan to obstruct interstate commerce by physical violence or threats of violence. Your Honor, this is an interpretation --
04-1244 +++$+++ 15690 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, the -- it's not a -- that's wrong. It says "affect commerce."
04-1244 +++$+++ 15691 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-1244 +++$+++ 15692 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And, therefore, we have the instance of any threat of violence that affects commerce becomes a Federal crime subject to 20 years of imprisonment. And, of course, in today's world, as you know, I believe almost everything affects commerce. And if I'm even close to being right, this is a major incursion of Federal law, serious criminal Federal law, into what could be fairly minor matters of State criminal law.
04-1244 +++$+++ 15693 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, because of the importance of the word "plan." And this goes to my answer to Justice Scalia earlier. The fact that it has to be a plan to obstruct or affect interstate commerce is an important limitation here. And it's key to remember that this is the position that the United States Government took for at least 25 years -- from the Franks case, in 1974, to the Milton case, in the Fourth Circuit in 1998, the Yankowski case, in 1999 -- and it hasn't had those effects. But if it does, Your Honor, then the appropriate solution is for Congress to change the statute, but not for this Court to ignore the plain meaning of the law. The final issue that was presented concerns the RICO statute. Here, section 1964(a) clearly authorizes courts to have jurisdiction to issue injunctions. Unlike the Sherman Act provision that only authorized the Government to seek injunctive relief, section 1964(a) allows Federal courts of jurisdiction, in any instance. This Court has said, in many instances, as Chief Justice Roberts pointed out, such as Franklin versus Gwinnett County, that when Federal courts have jurisdiction, they retain equitable power unless Congress expressly stripped that authority. So --
04-1244 +++$+++ 15694 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, your friend's answer was that that was an implied right-of-action case; and, therefore, the remedies had not been spelled out; and so, you assume the broader remedies. What's wrong with that answer?
04-1244 +++$+++ 15695 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, because this Court has said, in any instance, Federal courts have equitable power unless Congress has expressly stripped it of that power. United States versus Umansky would be an example where this Court said that, as well as the language from Franklin versus Gwinnett County. And that's especially true here, where Congress, in the RICO statute, specifically said that it should be broadly construed. This Court, in Sedima versus Imrex, said especially as to the remedial provision, section 1964, this should be broad construction.
04-1244 +++$+++ 15696 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ As you read it, can a private party get a preliminary injunction?
04-1244 +++$+++ 15697 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, in terms of the Government is specifically authorized by 1964(b) to get a preliminary injunction. And the reason for that is, generally the Government can't get injunctions to stop criminal activity. 1964(b) was added for that. But I'd say 1964(a), to go to your specific question, would authorize anyone to be able to go to the Federal court to use any of the Federal court's inherent powers.
04-1244 +++$+++ 15698 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, a private party could get an -- not only permanent, but preliminary --
04-1244 +++$+++ 15699 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-1244 +++$+++ 15700 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- injunction.
04-1244 +++$+++ 15701 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. 1964(b) was added because of the traditional common-law rule that the Government generally can't get such injunctions. Our position is simple. We believe that the Hobbs Act was changed precisely to deal with the situations where there might be a radical animal-activist group that might be blowing up restaurants that serve meat, or clothing stores, or where there might be situations where racists were blowing up businesses owned by blacks or Jews. That's what the Hobbs Act does. And the RICO statute provides, as Congress intended, a broad remedial scheme.
04-1244 +++$+++ 15702 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Chemerinsky, I -- you said earlier that our -- that we "reversed and remanded." That was not in our opinion, though, as it sometimes is, "Therefore, you know, the case is remanded." It doesn't say that. Our opinion here just says "reversed."
04-1244 +++$+++ 15703 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. But, Your Honor, this case --
04-1244 +++$+++ 15704 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It just says --
04-1244 +++$+++ 15705 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- obviously was sent back --
04-1244 +++$+++ 15706 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "reversed."
04-1244 +++$+++ 15707 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to the Seventh Circuit. And the Seventh Circuit then had to interpret what this Court decided. And --
04-1244 +++$+++ 15708 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I see. And they interpreted "reversed" to mean "remanded."
04-1244 +++$+++ 15709 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because this Court had not considered --
04-1244 +++$+++ 15710 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I see.
04-1244 +++$+++ 15711 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the four acts --
04-1244 +++$+++ 15712 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I see.
04-1244 +++$+++ 15713 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of violence and threats of violence.
04-1244 +++$+++ 15714 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, that enabled them to say that what we meant was not "reversed," but "reversed and remanded."
04-1244 +++$+++ 15715 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What this -- what the Seventh Circuit did was look at this Court's opinion and see that the statement of the issues, on page 397 --
04-1244 +++$+++ 15716 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They didn't look at the last line of our opinion, which said "reversed."
04-1244 +++$+++ 15717 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Your Honor, that would then assume that this Court decided an issue about the meaning of the Hobbs Act that was never presented in the cert petitions, never briefed, never addressed in the opinion.
04-1244 +++$+++ 15718 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They made the assumption that this Court has an obligation to reason why, and there was no reason why given as to those four counts.
04-1244 +++$+++ 15719 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. No discussion whatsoever, Your Honor.
04-1244 +++$+++ 15720 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's a broad principle. Whenever a Court of Appeals thinks that we haven't really resolved all the issues in the case, they can ignore our order that says "reversed."
04-1244 +++$+++ 15721 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course not, Your Honor. What the Seventh Circuit had to decide was, What about the four counts of violence or threats of violence that were found by the jury? Since they weren't ever discussed, the Court of Appeals did exactly the right thing, sent it back to the District Court to decide whether an injunction is still appropriate; and, if so, what the Hobbs Act means. Thank you.
04-1244 +++$+++ 15722 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, Congress never discussed the change in the Hobbs Act that you're proposing, in 1948. [Laughter.]
04-1244 +++$+++ 15723 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true. But it's unusual that, in 1948, Congress actually passed that statute. And so, that's binding. Here, the Seventh Circuit --
04-1244 +++$+++ 15724 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We also actually entered a mandate, too. [Laughter.]
04-1244 +++$+++ 15725 +++$+++ TRUE +++$+++ MR. CHEMERINSKY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, that's true. Thank you very much.
04-1244 +++$+++ 15726 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chemerinsky. Mr. Untereiner, you have 3 minutes remaining.
04-1244 +++$+++ 15728 +++$+++ FALSE +++$+++ MR. UNTEREINER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. I just want to make a few very quick points. First, I heard Mr. Chemerinsky say that the third clause was unnecessary in the Hobbs Act, because robbery and extortion necessarily involve acts or threats of violence. I just would like to point out that the Hobbs Act also covers official extortion, which does not require acts or threats of violence. Secondly, on the Enmons point that Justice Breyer was asking about, you're quite right, Justice Breyer, that to accept the other side's position would effectively overrule Enmons. Enmons did not rely, in any way, on section 1951(c), had nothing to do with the Court's analysis. If you look at section 1951(c), which is reprinted in the Scheidler blue brief at page 2(a), you'll see that it just refers to some labor statutes. It says that the Hobbs Act is not meant to repeal, modify, or affect those laws. But those laws don't protect violent conduct, so that's a red herring. And, number three, I'd just like to point out that in this Court's last decision in this case, the Court made clear that coercion is not covered by the Hobbs Act. But under the Respondent's reading, some acts of coercion would, in fact, be covered by the Hobbs Act. Finally, we'd just like to reiterate our request that, if the Court rules in our favor, it make very clear, in remanding the case, that judgment should be entered in favor of Petitioners. Thank you.
04-1244 +++$+++ 15729 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. The case is submitted.
04-1264 +++$+++ 15734 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Buckeye Check Cashing v. Cardegna. Mr. Landau.
04-1264 +++$+++ 15736 +++$+++ FALSE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: This case presents the question whether a party can avoid arbitration by challenging the validity of the underlying contract containing an arbitration clause as opposed to the arbitration clause itself. We believe that this Court answered that question almost 40 years ago in Prima Paint. The Florida Supreme Court tried to distinguish Prima Paint on State law grounds, holding that the challenge at issue there, fraud in the inducement, would have rendered the contract voidable under State law, whereas the challenge at issue here, illegality, would have rendered the contract void under State law. We respectfully submit that this distinction misses the point. Prima Paint held that a party cannot avoid arbitration by challenging the validity of the underlying contract as opposed to the arbitration clause because an embedded arbitration provision is severable from the underlying contract as a matter of Federal substantive law. Thus, the nature of the State law ground, on which the underlying contract is challenged, and the State law severability implications of that challenge are irrelevant. What matters, as a matter of Federal law, is that a challenge to the underlying contract does not allow a court to deny arbitration. Rather, that challenge must be presented to the arbitrator in the first instance. That point, we submit, is dispositive.
04-1264 +++$+++ 15737 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You -- you concede, though, that if -- if the challenge to the underlying contract implicates the arbitration clause as well, that that is for the court and not the arbitrator.
04-1264 +++$+++ 15738 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we --
04-1264 +++$+++ 15739 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In other words, you know, you put a gun to the person's head and say, sign this contract, and the person does. It contains an arbitration clause. They don't have to go to arbitration to challenge that.
04-1264 +++$+++ 15740 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we concede that there is asterisk, as we put it in our brief, to the otherwise bright line rule set down in Prima Paint, that rule being if you're challenging the arbitration clause, you can stay in court, but if you're challenging the underlying contract, you have to go to arbitration, precisely along the lines that Your Honor identified where the challenge to the underlying contract involves the parties' assents to the underlying contract, that challenge necessarily challenges your assent to arbitration. And given that the whole premise of arbitration in the first place is that it's a matter of consent, we would say that that particular challenge, as the lower courts have recognized since Prima Paint, an assent-based challenge to the underlying contract, is again an -- an exception or an asterisk to the otherwise bright line rule.
04-1264 +++$+++ 15741 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does -- does that include a quarrel over offer and acceptance?
04-1264 +++$+++ 15742 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think --
04-1264 +++$+++ 15743 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm -- we're trying to explore the -- the meaning of -- of this -- of this assent. I know there are going to be hard cases, but I want to try to see how we describe this area where it is for the court.
04-1264 +++$+++ 15744 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You're absolutely right, Your Honor, that there are going to be hard cases. If I could just start by answering that by saying I think one thing that's clear is that this case is not one of the hard ones. The challenge to the underlying contract here --
04-1264 +++$+++ 15745 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about offer and acceptance?
04-1264 +++$+++ 15746 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think generally when you're not saying I didn't agree to the underlying contract, in other words, where you're not saying that's a forgery or the -- the person who signed that didn't have authority, where you're -- where you're really -- where you're not challenging factual agreement to the underlying contract, then it's fair game to send you to -- to arbitration because when -- you factually agreed to -- to arbitrate.
04-1264 +++$+++ 15747 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You misinterpreted my letter. It was not an acceptance.
04-1264 +++$+++ 15748 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You misinterpreted my letter. The -- there was no acceptance at all. I would think that that's -- that would fall within the scope of this potential asterisk because you're basically saying I never agreed to any contract at all. So, therefore, I would think under those circumstances, the whole premise of the Prima Paint rule that -- that's once you've agreed to arbitration, you can let the arbitrator decide your grievances with the underlying contract is not present.
04-1264 +++$+++ 15749 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Well, Prima Paint did, though, involve what we would characterize as a voidable contract.
04-1264 +++$+++ 15750 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, that is not --
04-1264 +++$+++ 15751 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ And I think it is conceivable that the Florida court was correct that you could draw the line some way and say contracts that are void should be handled differently.
04-1264 +++$+++ 15752 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, two responses to that. At the most fundamental level, I think it misses the point to talk about the nature or the -- the State law severability implications of your challenge to the underlying contract because the insight to Prima Paint is that you treat the arbitration clause --
04-1264 +++$+++ 15753 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Yes, but voidness is a question of public policy. The State itself makes a decision that certain contracts can't be entered into. And the question of voidability is usually one affecting the -- the will of the contracting party.
04-1264 +++$+++ 15754 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, you're entirely correct, and I think again the -- the insight of Prima Paint is that you are perfectly able to present your challenge to the underlying contract. The question is, who is the person to -- which is the forum in which you present that? Are you allowed to -- to present that in court or -- or are you relegated to -- or are you required to submit it to the arbitrator pursuant to your agreement? And -- and I think the Prima Paint court recognized that if you allow parties to avoid arbitration altogether by bringing whatever challenges they may have to the underlying contract, whether it be fraud in the inducement or illegality or -- you know, there are obviously any number of grounds for challenging contracts under State law -- you effectively vitiate the arbitration agreement, the -- the whole point of which is that we're going to -- we've chosen the arbitrator as -- the arbitration as the correct forum to resolve our dispute. And -- and so again, as long as you are not challenging arbitration specifically -- the arbitration law specifically, then it's fair game to send you to arbitration, again where you are perfectly entitled to raise the whole panoply of challenges that you may have.
04-1264 +++$+++ 15755 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's -- it's a little odd that --
04-1264 +++$+++ 15756 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Landau --
04-1264 +++$+++ 15757 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the way our -- it's a little odd that the way our cases have -- have worked out is that we assume there's two contracts, one for arbitration and the other for the rest of the contracts. That's -- that's the way we've rationalized these cases. It seems a little odd to me.
04-1264 +++$+++ 15758 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, again, I think the -- the Federal Arbitration Act, both section 4 and section 2 of the Federal Arbitration Act, certainly permits that -- that way of looking at it because section 4, as Prima Paint emphasized, says, you know, once the making of the arbitration agreement is clear, it must go to arbitration. And section 2 says it's the arbitration provision in a written contract -- or the written provision in a contract that shall be valid and enforceable. And so, both those provisions do distinguish between the arbitration provision specifically and, in fact, treat it as an underlying contract. And again, I don't think there's any shame in admitting that Prima Paint, I think, recognized the important policy implications of a contrary rule, that --
04-1264 +++$+++ 15759 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Landau, maybe this -- this is a point your -- the respondent makes. Prima Paint talks about section 4 and it says, with respect to matters within the jurisdiction of the Federal courts. So the answer to everything you said could be, fine, if this were proceeding in, say, the Southern District of Florida, but it's in a State court. And Prima Paint just spoke about procedure in Federal court.
04-1264 +++$+++ 15760 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it is certainly true that Prima Paint itself arose from Federal court and that the decision is, I think, rather carefully written to talk about Federal courts as a -- in fact, Justice Harlan concurred in Prima Paint to say he would have affirmed the Second Circuit in that case on the basis of the Lawrence case, which said that this rule applies in Federal and State court, the FAA. But the Court was obviously unwilling in Prima Paint to cross the bridge of saying that our rule applies in State court. And I think that, frankly, that's why it's written in that way of -- of focusing on section 4 and not really specifically addressing section 2. This Court, however, subsequently confronted that issue head-on in the Southland case and held that the substantive provisions of the Federal Arbitration Act, really relying on Prima Paint for the proposition that the -- the Federal Arbitration Act does create Federal substantive law enacted under the commerce power -- it says that that rule -- those rules of substantive arbitration law apply in State as well as Federal court because you really wouldn't want to attribute to Congress kind of a -- a reverse Erie presumption of creating substantive Federal law that applied only in diversity cases in Federal court which would then promote forum shopping between Federal and State courts.
04-1264 +++$+++ 15761 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what's wrong with the argument that when you're dealing with a void contract, as opposed to a voidable one, that the State policy is that you don't enforce any aspect of it? I mean, if you and I had, you know, a contract for murder and it had an arbitration clause, it's pretty strange to send that to an arbitrator and enforce part of that contract as opposed to saying that the contract as a whole is void.
04-1264 +++$+++ 15762 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not really, Your Honor, in the sense that the -- the insight of Prima Paint, again, is that you treat the arbitration clause as separate from the underlying contract. So --
04-1264 +++$+++ 15763 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But we don't do that with other provisions of void contracts. I mean, if our contract had a liquidated damages clause -- if you didn't go ahead and murder somebody, you'd owe me $1,000 -- we don't say, well, that part is enforceable even if the contract as a whole is not enforceable. We treat it as a whole. Because the subject matter of the contract is illegal ab initio, the whole contract is -- is void and illegal.
04-1264 +++$+++ 15764 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, that is certainly one plausible world view that one could have taken as an initial matter when confronting this issue. I mean, it's a little bit like a chicken and egg issue here. You have got the underlying contract, which contains an arbitration provision, and one could certainly say, as Your Honor just did, that well, if the underlying contract falls, it seems perfectly sensible to say that everything falls. This Court specifically rejected that approach in Prima Paint.
04-1264 +++$+++ 15765 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course, you could say the same thing about a voidable contract. You could say, you know, the whole contract is voidable.
04-1264 +++$+++ 15766 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in fact --
04-1264 +++$+++ 15767 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, in -- in that respect, a contract that's void is no different from a contract that's voidable.
04-1264 +++$+++ 15768 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In fact -- exactly. The -- in Prima Paint itself, it was far from clear that the rescission suit that was sought there -- in other words, when a contract is -- is voidable, basically what that does is that -- under general common law principles, that creates an option for the aggrieved party. And that party can either seek to affirm that contract or it can seek to rescind that contract. And when you seek to rescind it, basically you're saying it was void ab initio, which is exactly what Justice Black said in his dissent in Prima Paint.
04-1264 +++$+++ 15769 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You also run into a problem with the -- some States classify a contract as voidable and other States for that same ground make it void. So at least you would have -- you would lose the uniformity if you've made the distinction between those two.
04-1264 +++$+++ 15770 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You are absolutely right, Your Honor, and I don't think this Court should lose sight of the bright line importance of the Prima Paint rule. But in a sense, Prima Paint again is a rule of Federal law. The Court in that case specifically affirmed the Federal law approach taken by the First Circuit as opposed to the State law approach, which I think was a little bit like Your Honor's hypothetical, the Chief Justice's hypothetical.
04-1264 +++$+++ 15771 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do we usually -- do we usually ask arbitrators to enforce broader notions of public policy as opposed to the specific agreements of the party? In other words, if the reason the contract is void or voidable has to do with broad State public policy, do we -- what -- what's this -- the best you case you have for the notion that arbitrators enforce those types of constraints as opposed to figuring out what the parties agreed to?
04-1264 +++$+++ 15772 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, sure, Your Honor. I think if you think about the Mitsubishi case, all the cases that sent statutory cases to arbitrators and said that, you know, RICO claims or antitrust claims could be arbitrated, I think initially the -- the argument that was made against that was precisely the one Your Honor is making, that, gee, arbitrators have expertise in the specific commercial agreements here, but we don't expect them to be knowledgeable about RICO or -- or other statutes. But I think the insight of the cases, really over the last 30 years in this Court, is that arbitrators are perfectly able and certainly have to be presumed to be able to decide legal and public policy questions. And I think if you -- again, if you go the other way and you say, well, we're going to allow challenges to the arbitration clause, we're not going to allow it to be enforced, I think you are really going to declare open season on arbitration in the sense that it is -- as a logical matter, there is no way to limit the principle that the other side is proposing to challenges based on illegality, which is what they've tried to -- to cabin this off as. Basically -- and I think the Florida Supreme Court was very forthright about this -- they said it's any challenge that leads to the contract being void as a matter of State law. And in fact, the -- the respondents in their brief in this Court really admit that it's any challenge that goes to contract formation, the formation at all of the underlying contract. So they would presumably sweep in all things like consideration, mutuality, anything that could be a ground for that.
04-1264 +++$+++ 15773 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What would be the issues for the arbitrator in this case? Is there anything other than was it -- was this interest usurious? The dispute between the parties -- we're not told what the issues are that would be subject to arbitration.
04-1264 +++$+++ 15774 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is the key issue, Your Honor. They are essentially saying that the underlying interest in the contract is usurious, in violation of several Florida statutes. And again, one thing that is important to keep in mind is that there is no question that these issues now, the practices that they're complaining about, are entirely legal in Florida today. There was an act passed in 2001 that clearly made all this legal. The only issue is they're saying it was illegal prior to enactment of that statute and whether or not that statute clarified the law or changed the previous law. But presumably the arbitrator would be asked to decide is -- was the law in Florida prior to 2001 such that -- that these other statutes that limited -- that limited interest applied here. The underlying dispute is really about whether these charges are interest or whether it's a service fee for cashing a check. That's the heart of the underlying dispute, and that's certainly one that the arbitrator is capable of deciding --
04-1264 +++$+++ 15775 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did the arbitrator --
04-1264 +++$+++ 15776 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- looking to Florida --
04-1264 +++$+++ 15777 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Could the arbitrator decide that I'm -- I'm going to apply the new statute rather than the old one?
04-1264 +++$+++ 15778 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think the arbitrator will say, you know -- first of all, if I could just make one point clear for the record. The -- this -- the underlying issue here, whether or not this 2001 statute changed the law or simply clarified the law is currently pending in the Florida Supreme Court. It was argued on -- on September 30th in -- in a case that did not involve arbitration. So presumably, the arbitrator, if this case goes to arbitration, will look at that case and will decide whether or not that governs this case, will decide is there any ground for distinguishing this case. And -- and, you know, one point to remember is that when you go to arbitration, that's not the end of the line. You have rights to judicial review of arbitration. So going back to your hypothetical, Mr. Chief Justice, if the -- if the contract were to be, let's say, for murder -- that's a favorite example of -- of respondents -- that does not mean that a contract for murder gets enforced. That means that the arbitrator will decide whether the contract for murder is -- is valid under State law and -- again, this is in the farfetched situation where somebody who has signed a contract for murder is actually trying to enforce arbitration, you know, presumably from his or her jail cell -- (Laughter.)
04-1264 +++$+++ 15779 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and then would -- would try to enforce arbitration, and then if -- you know, if the arbitrator says it's illegal, would -- you know, even if the arbitrator were, in the most fanciful situation, to say, yes, this contract for murder is legal under the law of our State, well, then presumably you could go up for manifest disregard review. There are safeguards in the process. What they're trying to do is short-circuit the process, and I think this goes back to Justice Ginsburg's question. The -- what they are now describing as the threshold issue of contract formation -- contract validity is not a threshold issue at all. It's what this whole dispute is about. It is what they are challenging here. They are saying these contracts are illegal because they charge too much interest, that what they're charging is in fact interest and that was illegal. Well, they are now saying that the -- the court should decide that underlying question as a threshold matter. Well, then there's actually nothing whatsoever left for the arbitrator to decide, and they have effectively vitiated the arbitration agreement. And again --
04-1264 +++$+++ 15780 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, no, that's not true. There may be dozens of other subsidiary issues apart from illegality. They may say, well, once you determine that it's legal, we think that we're entitled to these damages or those damages or -- or the rate should be this or that. Just because there's a threshold issue doesn't mean there aren't other issues that an arbitrator might decide.
04-1264 +++$+++ 15781 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I -- I guess maybe it depends on how you look at the word threshold. I mean, I would think that that is the core issue in the dispute. I mean, certainly there -- you are absolutely right that there could be some ancillary issues like damages. But clearly, the -- the nub, the crux of their challenge here is a challenge to the legality of the underlying contract. And under their view, they get to obtain judicial resolution of that issue in the first instance, notwithstanding the fact that they don't dispute that they agreed to arbitrate all issues relating not only to the validity of the arbitration clause itself, but relating to the underlying contract. So there's no question here -- and I think this is really important not to lose sight of -- that this dispute falls within the plain language of their arbitration provision. If you look at joint appendix 42, the arbitration provision here is very broadly worded in this regard, and the parties clearly agreed to do it. The only question is basically whether the State could frustrate the -- the plain, express intent of the parties by saying, oh, well, this challenge implicates arbitration -- implicates legality.
04-1264 +++$+++ 15782 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If the case was one in which the merits issue you claim is basically the same as the legality issue under the contract -- but would your argument be as strong if it were different, if you had a different reason for claiming that the contract was void or voidable?
04-1264 +++$+++ 15783 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- I think the argument, Your Honor, would be the same. It's just -- it's a particularly stark illustration here of the dangers of the -- of -- of that position. It may not -- you're absolutely right. It may not always be the case that the -- that the challenge to the contract is going to be the merits dispute in itself, but I think where, as here, it is, it really shows how pernicious this rule is and precisely why the Prima Paint rule, which again has been in effect almost 40 years now -- why that approach works and actually promotes the policy supporting arbitration. And when you -- again, when you think of an alternative rule, it's one in which you could come in -- the party who has concededly agreed to an arbitration clause and says, well, I think the underlying contract is void on public policy grounds, which again you can make in virtually any case. Under the Florida Supreme Court's rationale in this Court -- in this case, that is a basis for remaining in court, and --
04-1264 +++$+++ 15784 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about the possibility that you always want a neutral decision-maker in cases like this? The arbitrator always has an interest in finding that the contract is valid and arbitrable because that's his source of business is arbitrating disputes.
04-1264 +++$+++ 15785 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, you -- I think it's important to keep in mind that in this case, they have not challenged the arbitrator. The reason --
04-1264 +++$+++ 15786 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. I'm just talking about as a general matter if we're trying to decide the issue not just on these facts, but what is the better rule --
04-1264 +++$+++ 15787 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I don't -- I think that's -- again, that -- if you were to have a presumption that the arbitrator is always in favor of upholding a contract, that would seem somewhat in tension at the very --
04-1264 +++$+++ 15788 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, no. I mean, the question is, I take it, in most of the arbitration associations, once you have arbitration, you will get paid even though -- the arbitrator will be paid, won't he, whether --
04-1264 +++$+++ 15789 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, yes.
04-1264 +++$+++ 15790 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- he decides one way or the other?
04-1264 +++$+++ 15791 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, I'm sorry. Then yes.
04-1264 +++$+++ 15792 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So he has no particular interest in getting paid in upholding the contract or not.
04-1264 +++$+++ 15793 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You're absolutely right, Your Honor. That is absolutely clear. And -- and again, I would think he would not have an interest in -- in saying that a contract for murder is perfectly valid. You're absolutely right. It wouldn't get him more money in his pocket and it certainly would, I think, lead to the reputation of a rogue arbitrator out there who is not to be trusted. And -- and presumably that person wouldn't -- wouldn't get much business. Again, so I think that the key point here is that the respondents have tried to create a lot of State law issues regarding void, voidable. And -- and I think as Justice Ginsburg pointed out, the problem is it's kind of like trying to put a square peg in a round hole, that whether something is void or voidable under State law, which may vary from State to State, kind of misses the whole point which is the genius of a Federal separability rule is we don't care about those State law issues. You don't have to get into that bog to decide the arbitrability question or the -- you know, you cannot avoid arbitration by simply coming up with all those grounds. And whether it's ground A for challenging the underlying contract and whatever the severability implications may be of ground A or ground B, the point is when you're not challenging the arbitration clause, it's fair game to send you to arbitration, and then you can raise ground A or ground B or whatever ground you have before the arbitrator. And it's simply not a basis for avoiding arbitration altogether to be talking about that. And again, the -- the point -- I think this is all kind of a common-sensical point that you want to get parties quickly to arbitration. I mean, if you -- if you have a situation where the parties have to spend years in court litigating these kind of issues, that really, in and of itself, defeats the whole point of -- of arbitration.
04-1264 +++$+++ 15794 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, Prima Paint certainly displaced the States and State law from this area in a very substantial -- to a very substantial extent. I'm curious now. Have there been any attempts in Congress to overrule Prima Paint?
04-1264 +++$+++ 15795 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not aware of any, Your Honor. And to the contrary, I think the Federal Arbitration Act has been amended multiple times since 1967 and it has always been in a pro-arbitration direction, as this Court emphasized in the Allied-Bruce case where there was a concerted attack not on Prima Paint, but on Southland. And in a sense, Southland is really a -- a reflection of Prima Paint because Southland simply says that the -- the substantive Federal arbitration law that was announced in Prima Paint sensibly should not be limited to Federal court, but should also apply in State court. So I think the -- the Court faced a fork in the road in Prima Paint about the meaning of the Federal Arbitration Act. Was it just a procedural provision that governed in -- in Federal proceedings based on Congress' power over the Federal courts and their procedures? Or was it a substantive provision enacted under the Commerce Clause? And this Court took the latter approach and made that absolutely crystal clear in -- in Southland and then later again in Allied-Bruce. And so what I think the respondents are really asking you to do here is to really overrule root and branch the whole Federal substantive law of arbitrability altogether and say, well, this should just be -- you took the wrong path back in 1967 and -- and you should just interpret the FAA to be a -- a procedural statute. We would respectfully submit that that would cause an earthquake in the law in terms of arbitration and, therefore, would respectfully urge you to reverse the Supreme Court of Florida's judgment. I'd like to reserve the balance of my time.
04-1264 +++$+++ 15796 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Landau. Mr. Bland.
04-1264 +++$+++ 15798 +++$+++ FALSE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: This Court has repeatedly said that Federal law preempts State law only where Congress clearly and manifestly intended for it to do so. And the Court has also repeatedly said that the best guide to what Congress intended was the language of the statutes. Now, petitioners have not pointed to any language of the Federal Arbitration Act itself that would create a separability rule for this case. And moreover, the language of the act itself and particularly section 2 -- and particularly section 2 the way it was followed in the Prima Paint case -- actually strongly supports us. Section 2 says that an arbitration provision is enforceable if it is in a contract evidencing interstate commerce. Now, to order of arbitration, they say, well, the -- the threshold issue is whether there's an agreement. Let's have the arbitrator decide that. To order arbitration is to enforce the act. That is enforcing the act. But they want to enforce the act before we've determined if section 2 is met, before the requirements of section 2 are met. That's not the way --
04-1264 +++$+++ 15799 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I guess what they would say is that there -- they insist only that the agreement be to arbitrate, and to the extent there is an agreement to arbitrate, they can enforce section 2, and the arbitrator can decide whether the broader agreement is enforceable.
04-1264 +++$+++ 15800 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's an argument. The word agreement was used in section 4, and that's the -- that provision, of course, is the provision that refers only to the -- not only applies to the United States district courts, that refers to jurisdiction under title 28 and twice refers to the Federal Rules of Civil Procedure, and that in the Southland case in footnote 10, this Court said doesn't apply in the State courts. Section 2 doesn't use the word agreement. Section 2 uses the word contract, Mr. Chief Justice. And the word contract is a very different idea than agreement. If section 2 had said an agreement in interstate commerce or a transaction in interstate commerce, perhaps they would have a point. But the Court, instead, used -- excuse me. The Congress, instead, used the word contract. Contract is one of the most important words in the law. Now, when the Court in Prima Paint looked at this, in the first sentence, the very first sentence of Prima Paint, the Court said this case involves a contract involving the U.S. Arbitration Act. And in the first sentence, the Court said this case is a case involving contracting parties. The Court didn't say we're going to see what the arbitrator thinks as to whether there's a contract. In Prima Paint, this Court did it the right way. They said section 2 -- does it apply first? Only if it does apply, only if once after we have crossed that Rubicon will we go to the next step. Then the Court in Prima Paint goes and discusses whether or not the interstate commerce prong has been met. And there's a long discussion of is this in interstate commerce or not, and they find that it is. Well, under their theory, under petitioner's theory, why should the Court be deciding interstate commerce? Arbitrator -- the interstate commerce issue goes to the whole contract. Why shouldn't the arbitrator decide the interstate commerce issue?
04-1264 +++$+++ 15801 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When I was working on the first options in those cases, I thought there was from Southland a pretty clear distinction between whether the person is attacking the arbitration clause itself. If he says that's not valid, that probably goes to the court, unless there's some other special thing. But if what he's doing is attacking the rest of the contract as illegal, that doesn't. That goes to the arbitrator. Now, I really did think that was the law. And even if I was wrong in thinking that was the law, it seems to me the whole community, the whole business community in the United States thinks it's the law. Everybody else thinks it's the law, and the briefs on your side don't even say that it isn't the law, except for yours. They say go and overrule the cases that make it the law.
04-1264 +++$+++ 15802 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We -- we do not in any way urge this Court to overturn -- the Court does not need to overturn Southland, Your Honor. And let me make two points about Southland.
04-1264 +++$+++ 15803 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, logically you're right. I accept all that you're saying logically. You could make those distinctions, but you also could come out the other way logically. And so to expose to you what's really bothering me about the case are two things. One, I think you're worried about consumer contracts, and there are a lot of good arguments on your side. But this rule also applies to business contracts, and there what's bothering me is that -- that the whole business community seems to have developed an arbitration system throughout the world that depends upon the distinction I just made. And if we decide for you, we're going to throw a large section of those contracts back into the laws of the 50 States and arbitration will be seriously injured as the commercial community has come to rely on it. Now, that's what's worrying me because I wouldn't want to reach a decision, in the absence of it being clear anyway, that would make a significant negative difference to the gross national product of the United States, for example.
04-1264 +++$+++ 15804 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, let -- before I go on with the statutory arguments --
04-1264 +++$+++ 15805 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm putting it dramatically because I want to get your --
04-1264 +++$+++ 15806 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- let me -- before I talk about the statutory arguments, then let me go to the policy arguments and this idea that we're going to open the flood gates and undermine the Federal Arbitration Act. It is a minimal requirement to say that you must have a contract in interstate commerce. And in the Southland case, on page 10, at the bottom of page 10 and page 11, before it said that section 2 would apply in States, Chief Justice Burger's opinion for this Court started off and said there -- we perceive two limitations on arbitration -- on the enforceability of arbitration provisions. And the first of those is it does have to be in a contract in interstate commerce. So there is nothing in Southland that said, oh, well, the question about whether or not there's a contract is something the arbitrator gets to decide. The beginning of the opinion said that particular issue is one for the -- is one that is a limitation on the enforceability of contracts. Is this going to lead to an explosion of litigation over the formation of contracts? It will not because there are fairly few cases where there is an argument that the entire contract is void ab initio such that it comes up.
04-1264 +++$+++ 15807 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Every usury case, for example. That's very few? I mean, that's a lot of cases.
04-1264 +++$+++ 15808 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ After the National Banking Act, Your Honor, there are actually very few usury cases left. If you look at the six cases they cite that are all -- they say they're Federal. There are six Federal court of appeals decisions that support them. Four of those are payday lending cases decided since 2000. The principal economic effect of this case actually is going to involve the payday lending industry. And was it irrational for the State of Florida to say that it's loan-sharking to charge people up to 1300 percent interest? We think that that -- whether -- whether Florida made a good decision or not with its usury laws, usury laws just don't apply to many cases.
04-1264 +++$+++ 15809 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about fraud in the inducement?
04-1264 +++$+++ 15810 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Fraud in the inducement does not go to rendering the contract void ab initio. A contract comes into existence. You cross the statutory language of section 2. Fraud in the inducement -- there is a contract. Now one party has a defense to it. Suppose --
04-1264 +++$+++ 15811 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Bland.
04-1264 +++$+++ 15812 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Your Honor --
04-1264 +++$+++ 15813 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Bland, some State may say fraud in the inducement is void. These -- these are classifications that States make. These are labels that the State puts on them. And you are introducing vast disuniformity if you say that the line to draw is between void and voidable. You are forced into that because the Prima Paint case dealt with voidable. So you -- that you -- you are drawing a line between void and voidable which shifts from State to State.
04-1264 +++$+++ 15814 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- the -- Your Honor, first, the Congress drew the line when it said that you had to have a contract first as to whether or not a contract came into existence. But the law of contracts does not differ so much from State to State. This case in the American Airlines v. -- this Court -- excuse me -- in the American Airlines v. Wolens case said that the law of contracts is not largely disuniform from State to State, and there is no State in the country that I know of -- and I'm fairly certain of this -- that hold that fraud in the inducement means that a contract never came into existence. And the reason for that is -- is that if someone defrauds me into buying a stock or someone has an unconscionable deal or almost any of the other things that give rise to defenses to formed contracts, one party has an option to get of out it. If someone defrauds me into buying a stock but then the stock price shoots up through the roof -- it's one of Justice Breyer's clever technology inventions that works -- (Laughter.)
04-1264 +++$+++ 15815 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I have an option at that point to hold onto the stock, even though I was defrauded. I was defrauded. I was cheated, but I'm happy with it. It turns out it's okay. It is left to the option --
04-1264 +++$+++ 15816 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But almost every State --
04-1264 +++$+++ 15817 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of the party.
04-1264 +++$+++ 15818 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- almost ever State will -- has an exception for contracts that are void against public policy. And it's just left to the creativity of the lawyer in any given case to explain why a particular contract is contrary to public policy. And you would allow that to be shifted from the arbitrators to court presumably based simply on an allegation, well, the contract is void, it's against public policy.
04-1264 +++$+++ 15819 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think you will find, Your Honor, if you look at the -- at the law that's developed around void ab initio contracts, that it's fairly rare. It's a fairly small universe of cases where State courts have found that an entire line of business is illegal, where State courts have found that no contract ever comes into existence because of a public policy.
04-1264 +++$+++ 15820 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if you open the door -- if you open the door -- public policy has been called an unruly horse. All you have to do is open the door and you will have litigation in court, and then the court will decide what the arbitrator would other -- otherwise decide.
04-1264 +++$+++ 15821 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Your Honor, there are already a host of circumstances in which litigants would like to be able to get out of contracts that do not involve arbitration clauses, where they would like to be able to argue that no contract came into existence in the first place. And the public policy typically -- and in Florida particularly -- tends to be linked to statutes. In most States, there is a rule that says of contract law, that we will not void a contract because some judge feels there's a public policy, but it has to be based on a statute. And we cited several cases, and the law professors in Professor Alderman and Braucher's brief cited a variety of cases around the country in which courts have only struck down contracts for public policy where they violated a statute that forbid equality.
04-1264 +++$+++ 15822 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're giving the end result. How many cases have the lawyers gone into court and said, court, strike down this contract because it's against public policy? Courts may reject many of those, but --
04-1264 +++$+++ 15823 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think there's no reason to suspect that there's going to be abuse in which parties are going to come in and make frivolous arguments that an entire line of business is illegal and then -- and that that's going to cause a flood gate of cases into courts because courts have, with rule 11 and other similar rules, a lot of ways of getting rid of those.
04-1264 +++$+++ 15824 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what about --
04-1264 +++$+++ 15825 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's very hard --
04-1264 +++$+++ 15826 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You get rid of them after frustrating the arbitration provision, the whole purpose of which is to keep you out of courts. I'd like to -- I'd like to ask you about your argument on section 2, which --
04-1264 +++$+++ 15827 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Please.
04-1264 +++$+++ 15828 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- appears at page 3 of the petitioner's brief. If you want to read it the way you're reading it, you say a written provision in a contract evidencing a transaction involving commerce. You say that has to be a -- a contract that is a valid contract. Well, what do you do about the end of section 2 which says, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract? That would apply to -- to contracts that are not -- not void but voidable.
04-1264 +++$+++ 15829 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly, and that's the language --
04-1264 +++$+++ 15830 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So Southland was wrong.
04-1264 +++$+++ 15831 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. With all respect, Your Honor, that's the language that -- that the separability rule in Prima Paint has been used to apply to. The first part of section 2 says this is how you create an arbitration provision. You have an enforceable provision if it's in a contract, but there is an exception for general State contract laws that provide defenses to a contract.
04-1264 +++$+++ 15832 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why?
04-1264 +++$+++ 15833 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That --
04-1264 +++$+++ 15834 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why would you make that -- that weird distinction --
04-1264 +++$+++ 15835 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because that --
04-1264 +++$+++ 15836 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and treat the first part of it as though it applies across the board to the entire contract, but the last part of it, reading it differently? I -- I don't understand that.
04-1264 +++$+++ 15837 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The first part of it is the way you -- the way you trigger the existing forceability option at all is that it has to be in a contract in interstate commerce. That's why in Prima Paint the Court went through interstate commerce rather than leaving that for the arbitrator. The second part is once you have an enforceable agreement, it may be subject to certain defenses. And then in Prima Paint, what this Court did was it looked at section 4 of the act and it derived from section 4 of the act, the one that only applies in Federal court and refers to the Federal Rules of Judicial Procedure, a rule of separability for these kinds of defenses, for the defenses that arise in the Savings Clause.
04-1264 +++$+++ 15838 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems to me even if you separate it, you still have the language, save upon such grounds that exist in law or in equity for the revocation of any contract. Unless you take that language, the reference to contract in section 2, as referring to two separate things, the contract without the -- without the arbitration clause and the arbitration clause alone, it seems to me section 2 doesn't make any sense.
04-1264 +++$+++ 15839 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With all respect, Your Honor, I think that the way that it makes sense is that the -- you get the threshold issue of getting through the limitation, as this Court described it in Southland on pages 10 and 11, of the limitation on the enforceability of arbitration clauses of is it in a contract in the first place. That is the -- what the first part is talking about. Then separately the Court -- the -- the Congress had intended only a limited intrusion into State law, as this Court said in the Volt case where it said that this -- that there was not -- this is not the National Bank Act. There was no field preemption. There was no express preemption. There was only conflict preemption. And in the Allied-Bruce case, what Justice Breyer's opinion for the Court said was we recognize that State law will play an important role for certain contract defenses after the contract has first been found to be enforceable. I think that if -- if this jurisdictional idea -- the way you get into the Arbitration Act, what triggers that the Arbitration Act exists -- and this is pretty much the language that's used at the -- in the bottom of 10 and top of 11 of Southland -- is that you have an arbitration agreement that's enforceable. Then there is a but in which Congress left out an alternative where you have specific challenges to how the arbitration clause is formed. I think that that's a very workable system, but that's also the way Congress drafted the statute.
04-1264 +++$+++ 15840 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's not -- the workability of it depends on how many challenges you get to people saying this contract is void, you know. And if there are a lot of them, then that takes a whole wide set of cases out of arbitration and puts them into the courts, just where they're trying to escape. And -- and so I don't know the answer to how many, to be truthful, and I suspect no one does. So I'm wondering if there isn't another route to the problem you're getting at, which is, as I think in other countries, you say there's a doctrine of kompetenz-kompetenz. You know that? You know what I'm thinking of?
04-1264 +++$+++ 15841 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I'm afraid I do not, Your Honor.
04-1264 +++$+++ 15842 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's arbitration generally. They don't even look to see whether people agreed about the arbitration clause. It says arbitration. It goes to arbitration regardless. Now, the safeguard is, A, maybe the arbitrator will get it right or, B, if the arbitrator doesn't get it right, they have to come to court to enforce it. And at that point, you could say, you know, this arbitrator is out to lunch. Our cases say he has to be really out to lunch, but you could make some distinctions there, you see. And -- and if this is really a problem that arbitrators are upholding illegal contracts, that might be the place to begin to make the distinctions. Say, Judge, look at this a little more closely where it's illegal, the whole contract, et cetera. What do you think?
04-1264 +++$+++ 15843 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think two things, Your Honor. First, I'd like to say that I think an enormous difference between the European illustrations, for example, that you give in this setting is that here the Federal Arbitration Act is not a common law rule of let's push as many cases as we can from the civil justice system into arbitration. It is a statute that has language. And the way this Court has treated that language before is this Court has always said not until the case falls within section 2 will you then go and enforce section 2, that you have to be in the act before you apply the act.
04-1264 +++$+++ 15844 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If we take --
04-1264 +++$+++ 15845 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I think that that language is --
04-1264 +++$+++ 15846 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- if we take, Mr. Bland, what you said so -- the words transaction involving commerce, but a contract -- okay. So you spoke about void contracts. Well, what about there's not enough consideration, things that go to the formation? So this contract was never formed. So --
04-1264 +++$+++ 15847 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Those are issues that we believe also are issues that a court would resolve. I think, Your Honor, that there are very few --
04-1264 +++$+++ 15848 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So we're going far -- far beyond a void subject matter like usury. But you could say there -- there wasn't sufficient consideration. There was no mutuality or things that go to the formation of a contract.
04-1264 +++$+++ 15849 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that when Your Honor used the word far, that that -- that that is not really fair. There are really very, very few contracts in the United States of America in 2005 that are going to be struck down because there wasn't enough consideration. That sort of argument against contract formation very rarely comes up. I do a ton of consumer contract cases. We've never gotten rid of a contract on the grounds there wasn't consideration. These doctrines are on the books. They are certainly part of what makes a contract different from an agreement. It's certainly one of the reasons why I think it's important that Congress chose such a loaded word, but these -- there are very few cases that involve this. And -- and one thing about the -- about the illegal issue and the voidability -- the -- the void ab initio issue that Your Honor raises. In Florida -- and we cited a number of cases of this in our brief and in the -- in -- both in our brief and -- and in the contract law professors' amicus brief, there's a number of cases around the country. You only strike down a contract as void ab initio where the principal purpose, the essence of the contract is that -- that it was to do an illegal purpose, was that it was to violate a statute as reflected in -- as -- as it would reflect the public policy of a State. You could have a contract that has one or two illegal provisions or minor legal provisions. Those are not enough to get the entire contract thrown out as void ab initio. It's a much higher test. If I can use an analogy. There may be a lot of people who wish they weren't married, but meeting the tests of annulment are very different from divorce. Trying to prove that a contract is void ab initio such that it is so extremely illegal that no provision of it will come into contract doesn't come up very often. What we are talking about with void ab initio contracts that violate public policies and statutes are we are talking about businesses that are skirting around on the edge of legality. We are talking about a business where there is a colorable argument that someone can go into court and say, this entire line of business is loan-sharking. It's a crime. It's 29 times the -- the felony rate of loan-sharking in Florida. That's why so many of these cases are payday lending cases. You don't see a lot of void ab initio cases in which come -- someone comes in and say, hey, you know, they sold me a car and the entire line of business of car selling was void ab initio. The only example that's supposed to show the flood gates that has come from petitioner's brief is they cite to this Vacation Beach case in Florida. And what -- that was a case that involved was sort of a uniquely Florida problem, but after a bunch of hurricanes, they've had people come down who were unlicensed contractors and they go and say we know how to fix roofs and so forth and they do not. And then people's roofs blow off, and there have actually been a number of people who have died. So the State set up a licensing regime that was a licensing regime not designed to extort money from businesses, but a licensing regime designed -- scheme based on safety and health and welfare of the citizens and said, you can't go into this line of business without passing certain certifications. So in that case, it was a declaratory judgment action in which a company -- in which a company comes in and says, this company is falsely representing they know how to do this work and they don't. And in fact, the court of appeals notes it could be a crime. And now petitioner comes in and says, well, this is an outrage. Of course, the arbitrator should decide that question in the first place. No. That's a business that is arguably -- and probably more than arguably -- operating on the outskirts of the law. Their reliance interests are different.
04-1264 +++$+++ 15850 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there's no -- but -- but why do you assume that that underlying illegality taints the arbitration clause? I mean, take the arbitration clause that you would find in a perfectly normal contract, and if you put it in the -- the contract of the sort that you're hypothesizing, I don't see why this underlying substance of the contract taints the enforceability of the arbitration clause.
04-1264 +++$+++ 15851 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because -- because the language of the statute is what draws the key link difference to me, Your Honor. The statute says an arbitration provision is enforceable if it is in a contract evidencing interstate commerce. The in a contract makes the legality of the whole contract -- for the contract comes into existence. You can't drive this car until you start it, and the way that the Federal Arbitration Act works is it becomes enforceable once those terms are met. Under their theory, there's no good reason why in Prima Paint this Court spent all those pages talking about whether interstate commerce was met. Why wasn't that for the arbitrator? The reason that that wasn't for the arbitrator was that was something that went to the threshold issue of whether section 2 had been met.
04-1264 +++$+++ 15852 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you saying then if this case, the case that was brought in Florida, had been brought or removed in -- more likely removed because there was diversity, removed to the Federal court, the Federal court should do just what the Florida Supreme Court did? Or would the Federal court say, well, we've got our instructions from Prima Paint? It says excise the arbitration clause. If that's okay, we decide the other questions.
04-1264 +++$+++ 15853 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, in this case I believe that the answer is that you would have the same result in State court or in Federal court. And the reason I believe that is because section 2 makes the existence of a contract a precondition, and you don't get to anything else if that is not met.
04-1264 +++$+++ 15854 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Doesn't it -- doesn't it follow from -- from that theory of yours that in every case you are entitled to a judicial determination, not an arbitrator's determination, but a judicial determination that this was a contract evidencing a transaction involving commerce?
04-1264 +++$+++ 15855 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, we do believe that, Your Honor.
04-1264 +++$+++ 15856 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wow. So in every -- every case, the person who -- who is being brought to arbitration can say, I deny that interstate commerce is involved in -- in this -- in this contract and I want to have a -- a judicial determination of it.
04-1264 +++$+++ 15857 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And of course, in the Efabco case --
04-1264 +++$+++ 15858 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I mean, that's --
04-1264 +++$+++ 15859 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that -- this Court 2 years ago in 2003 in the Efabco case, the Alabama Supreme Court had developed a practice of finding that lots of contracts didn't involve interstate commerce and interstate commerce didn't reach to a lot of things. And this Court just 2 years ago said this is an issue for the court and there is interstate commerce here and they -- they -- and this Court -- I can't remember the phrase -- per curiam. There was no need for an argument or whatever. The Court just came in and resolved it --
04-1264 +++$+++ 15860 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You said this was an issue for the court. Was there an alternate forum in that case? Was it an arbitration case?
04-1264 +++$+++ 15861 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This was an arbitration case, and the Alabama Supreme Court had said that we're not going to enforce the Federal Arbitration Act, and Alabama is one of the three States that has -- that has a State statute that bars it.
04-1264 +++$+++ 15862 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I had thought that the interstate commerce question was like Crowell v. Benson. You know, it's like a constitutional fact. And in fact, if you can't -- if there's not the constitutional -- if there's not the connection with interstate commerce, Congress, at least arguably, would lack the constitutional power to tell the State court what to do in this case. So it's not as surprising if there is a difference between that kind of fact and the kind of fact that goes to whether the -- the contract is void ab initio.
04-1264 +++$+++ 15863 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But it -- but it is also a statutory fact, Your Honor.
04-1264 +++$+++ 15864 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, it is. It's both.
04-1264 +++$+++ 15865 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's a fact that the statute says both. It is a constitutional fact. I certainly concede that. Justice Ginsburg, I believe I did not answer -- I'm sorry.
04-1264 +++$+++ 15866 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The question isn't whether the court can -- can determine that fact. Ultimately, if the arbitrator determines it incorrectly, you can take it to court. But the question is whether in every arbitration case, you can go immediately to court to have that question of interstate commerce or not determined. And that would really throw a monkey wrench into the whole system, it seems to me.
04-1264 +++$+++ 15867 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, it's -- it would not throw a monkey wrench because it's exactly what happened in Prima Paint. In Prima Paint, this Court started off and before it enforced the Arbitration Act, before it got into what it called the main issue and started talking about what does section 4 mean, this Court first went and did the entire interstate commerce analysis. This Court said, we've got to figure out if we're in section 2 first and described that. It's not the monkey wrench. It's exactly what's happened. And in the Efabco case, it was a issue for the Court. To say that now, whether or not section 2 exists except for the assent agreement, but everything else about a contract and everything else about interstate commerce would suddenly be for the arbitrator, that is an exact shift from what this Court did in Prima Paint, and it's a shift from what Chief Justice Warren Burger said in the -- in the Southland case, that this is a prerequisite.
04-1264 +++$+++ 15868 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Once the case is in the court, of course, the court has to decide that question. Once it is in the court. And it was in the court in -- in Prima Paint. The question is does it have to go first to the court before it goes to the arbitrator, and -- and Prima Paint doesn't decide that question.
04-1264 +++$+++ 15869 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, where these cases come up again and again, Your Honor, is someone brings a lawsuit in court and then there is a motion to compel arbitration and there is a challenge to that motion. There are next to no challenges anywhere in the country right now in the -- after your decision 2 years ago, in which anyone is saying, oh, this transaction doesn't involve interstate commerce. There are going to be a small number of challenges involving companies operating at the edge of legality and maybe a tiny number of challenges involving consideration where people are going to be able to say there's no contract at all, there's not even a -- there's not even the beginning of a contract here. There's not going to be a wealth of hundreds of the -- of those, but there's going to be some cases, mostly involving the payday lending industry, but they're just aren't dozens of businesses out there where there is a conceivable, plausible, colorable argument that the whole line of business is violating the law.
04-1264 +++$+++ 15870 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Bland, I'm curious to know if you agree with your opponent that whoever decides it, an arbitrator or a judge, it's really going to be decided by the Florida Supreme Court in the next couple of months.
04-1264 +++$+++ 15871 +++$+++ TRUE +++$+++ MR. BLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that the question of whether or not this is illegal will be something that's decided by the Florida Supreme Court, but that question -- first of all, if this case is sent back to arbitration, the arbitration clause, of course, is on an individual basis and this case could never be pursued on an individual basis. If it's not done as a class action, it would be the end of the case. But moreover, the arbitrator is basically free to ignore what the ruling of the Florida Supreme Court is. You know, there was a ruling from the Third Circuit a few weeks ago that said that glaring errors of law are not grounds for overturning an arbitration decision. So the Florida Supreme Court could come out and say this is plainly illegal, and then a row of arbitrators could come in and say, seems okay to us, and there's really not going to be a court challenge to that. So I would not agree with that as a matter of -- as a matter of practical reality, Your Honor. This State law that we're talking about is not about hostility to arbitration. The rule that distinguishes between void contracts and the small universe of cases that are void ab initio is a rule that goes back something like a hundred years in Florida and it goes back hundreds more years through -- it's come up in decisions of this Court. It has come up in decisions of English courts that go back that were traced by the contract professors. At the time that the Congress wrote the Arbitration Act in 1925, this distinction was set out in Corbin and in the First Restatement of Contracts. This is basic, core common law of contracts. And the idea that in 1925 Congress wanted to throw out all of the basic core rules of contracts and, instead, replace them with some new Federal rule of contract, when they didn't define contract, and when they put it as a precondition before the act applies, the idea that general rules of State contract law are going to be tossed overboard is really going to be a dramatic change for this Court -- for this Court's jurisprudence. In case after case, this Court has said arbitration clauses are as enforceable as other contracts, but no more so. And that was the basis of this Court's ruling in the EEOC v. Waffle House case just a few years ago. Just like petitioner here, the Waffle House was saying arbitration clauses are sort of super contracts. They are something so many businesses have relied on, as Justice Breyer says, that they are -- that they are treated by a different and better set of rules. These are contracts which are just better and more important than other contracts. And this Court stopped and, in Justice Stevens' opinion in the Waffle Case, said slow down. First, you just have to treat these like other contracts. And here, there's no signature line for the EEOC. The EEOC didn't sign on. We're going to treat this like another contract, and by a 6 to 3 vote, this Court found that you couldn't enforce it. They want to put the cart before the horse. They want to enforce this Arbitration Act before its terms were met. That is not what this Court did in Prima Paint. Prima Paint did it right. They said section 2 first and only if section 2 applies, then do we jump to the next point, you know, sort of dinner before dessert. And that was the appropriate approach because you have to find out if section 2 is there and cross that threshold before you start saying now that we're in the Federal Arbitration Act, how much fun would it be to apply section 4, the part that keeps talking about the Federal Rules of Civil Procedure, to cases in State court proceedings and apply a decision that was based entirely on language in section 4 to State court proceedings. That is simply an enormous expansion of the law in this area, and we urge the Court strongly to affirm the decision below. Thank you.
04-1264 +++$+++ 15872 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Bland. Mr. Landau, you have 4-and-a-half minutes remaining.
04-1264 +++$+++ 15874 +++$+++ FALSE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. Three --
04-1264 +++$+++ 15875 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Landau, I'd like to know how you read section 2. What -- what meaning do you give to a written provision in a contract?
04-1264 +++$+++ 15876 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think the word contract is not a precondition in the sense that respondents talk about in the sense that the court has to look into whether it's a valid contract with all the bells and whistles of State contract law because I think that is entirely inconsistent with Prima Paint. I think the -- the answer is --
04-1264 +++$+++ 15877 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But State law -- the supposition is that State law provides that in this case, the usury context, whatever, you do not have a contract. That's the difference between void ab initio and voidable.
04-1264 +++$+++ 15878 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think the point is that it -- the key part there is -- I think Justice Breyer was getting to this -- that it has to be a -- a contract that evidences interstate commerce to have the hook of commerce power for the FAA to apply in the first place. That was enacted under the substantive commerce power. Then the question arises -- and this is really where they're hanging their hats in this case to say, well, you have the word contract. The word contract brings with it all the bells and whistles of State law for a valid underlying contract. The problem with that is that looking at it that way -- I think this is the heart of this case -- that completely undermines -- or the severability rule says, we've got a different contract. The underlying contract is -- is there, and you can raise your challenge to that contract, but as long as you're not challenging the -- the arbitration clause, then any challenge you have to the underlying contract goes to the arbitrator. And again, I think the point is to say that, well, they don't deny that there's a severability rule, but to say that before you apply the Federal severability rule, you have to go and look at the underlying contract and ascertain all this is to deny the Federal severability rule.
04-1264 +++$+++ 15879 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I guess that respondent uses the language in the way it -- he says it should be used when he refers to a contract that is void ab initio. There's no such thing as a contract that is void ab initio, is there?
04-1264 +++$+++ 15880 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
04-1264 +++$+++ 15881 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If you take the meaning of contract that he takes in section 2.
04-1264 +++$+++ 15882 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I think you're -- you're right, Your Honor. I mean, I think the -- the point is it -- it just doesn't make sense to say that you have to go through all the bells and whistles of looking at the validity of the underlying contract if the whole point of Prima Paint -- I think this goes back to what the Chief Justice said is you just look at the arbitration provision as a severable contract. So to say that --
04-1264 +++$+++ 15883 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I -- his answer would be, well, you only get to do that if you're under the Federal Arbitration Act in the first place, and if you don't have a contract, then you're not under the Federal Arbitration Act under State law.
04-1264 +++$+++ 15884 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You're right, Your Honor. I think that's the key point, that to say that the -- you have to go to the -- the validity of the underlying contract under State law and the severability implications of the challenge to the underlying contract before you -- before you even get to the arbitration clause is essentially to negate the severability of the arbitration clause because the whole reason you're looking at the underlying contract is presumably to see whether or not the arbitration clause can fall. So they cannot logically have a regime that says the arbitration clause is severable from the underlying contract.
04-1264 +++$+++ 15885 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They can logically because they say the arbitration clause, when embedded in a contract that is voidable -- i.e., A and B enter into a contract. B says it's voidable. I void it. I void it. And there they say, fine, there was a contract and therefore this arbitration clause, which is separable -- you go to arbitration. But if it's void, where B doesn't have to say I void it, I void it, you never had a contract in the first place. Now, that is a logical position.
04-1264 +++$+++ 15886 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And you're absolutely right, Your Honor, and that was the lines that were drawn in Prima Paint. That -- that was the -- the real issue that was presented. They said there was no contract. They said I'm bringing a rescission suit. And if you read what Justice Black said in dissent in Prima Paint, he said there was no contract. And this kind of goes back to what Justice Ginsburg was saying, that to talk about the implications, the severability implications, of particular challenges under State law misses the point that the Federal severability rule doesn't depend on State law.
04-1264 +++$+++ 15887 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Landau.
04-1264 +++$+++ 15888 +++$+++ TRUE +++$+++ MR. LANDAU +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-1264 +++$+++ 15889 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The case is submitted.
04-1324 +++$+++ 15893 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument next in 04-1324, Day versus McDonough. Mr. Busby.
04-1324 +++$+++ 15895 +++$+++ FALSE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The State does not dispute that it waived the affirmative defense of limitations by failing to raise it in the District Court and by conceding in its answer that Day's petition was timely. Yet, nearly a year into the case, after the parties had briefed the merits, the magistrate judge not only raised an argument that the petition was untimely, he actually imposed the State's limitations defense and dismissed the case, despite the State's procedural default and contrary concession. That was error, for two reasons. First, it violates the general principle of the adversary system in the civil rules that it's error to impose a forfeited limitations defense sua sponte, and the statutory text in rules have confirmed that this principle applies to habeas. Second, the State's concession of timeliness based on full information was an express binding waiver, and it was error for the District Court to override that concession.
04-1324 +++$+++ 15896 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It was a computation error. This is not a -- this is not a case where the State chose to waive the statute of limitations. It miscalculated. Isn't that the case?
04-1324 +++$+++ 15897 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there was a 1-day miscalculation, Justice Ginsburg, on the -- on the 352 versus 353 days before the -- Mr. Day filed his State postconviction petition. But there's a legal dispute as to whether the days after -- between the time -- whether the --
04-1324 +++$+++ 15898 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But we're not -- and we didn't take cert to decide if this claim was timely. We are on the assumption that it was untimely. But -- and what are the consequences of the State's failing to raise that?
04-1324 +++$+++ 15899 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, our position is that by expressly conceding in their petition that it was timely, that that's an express waiver. I mean, they say that they would have -- what they would have had to say was, "We know we have a limitations defense. We're expressly giving that up, that the proper standard is the intentional relinquishment of" --
04-1324 +++$+++ 15900 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the --
04-1324 +++$+++ 15901 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- "a known right."
04-1324 +++$+++ 15902 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the whole basis was the number of days that they calculated, and the magistrate said, "Oh, they miscalculated. There were more days involved."
04-1324 +++$+++ 15903 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- yes, under Eleventh Circuit law, the magistrate said they should have counted that additional time at the end.
04-1324 +++$+++ 15904 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-1324 +++$+++ 15905 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But this Court has said that the standard for -- the standard for express waiver varies, depending on the right at stake. It's not always intentional relinquishment of a known right, as it is with some constitutional rights. In fact, there are several Courts of Appeals that have said when you plead -- when you affirmatively plead the opposite of an affirmative defense, as they did here by saying it's timely, that that's enough for an express waiver. And --
04-1324 +++$+++ 15906 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose --
04-1324 +++$+++ 15907 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- this Court --
04-1324 +++$+++ 15908 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose the magistrate judge had said, "I notice this error in accordance with Eleventh Circuit law, so I am going to suggest to the State that they amend their answer." The State certainly could -- under Rule 15, if the Federal rules apply, the State could have amended its answer and done just what the magistrate judge did.
04-1324 +++$+++ 15909 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, certainly, Your Honor, they could have moved to amend their answer. We would have opposed it; and would, on remand, if the issue were to come up, on the ground that they had full information, and so that this is not an appropriate case to amend an answer. But I agree with you that that would have been one option, and that's the way that the Third Circuit analyzes this issue in the Long case and in the Bendolph case, using the principles of Rule 15. The Fifth -- the Eleventh Circuit did not do that here. It said that there was an obligation for the court to impose the limitations defense; it did not apply the Rule 15 --
04-1324 +++$+++ 15910 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I --
04-1324 +++$+++ 15911 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- analysis.
04-1324 +++$+++ 15912 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Did it say "an obligation," or that the court "could"? It didn't -- I didn't think it said the court "must."
04-1324 +++$+++ 15913 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It did say, Your Honor, that there was an obligation for the court to impose it to further comity, finality, and federalism, and that can be found on page 5(a) of the appendix to the petition, "A Federal Court that sits in collateral review has an obligation to enforce the Federal statute of limitations." And, in fact, they quote the Advisory Committee notes to Rule 4, saying the court has the duty to screen out. And they also expressly distinguished their precedent in Esslinger versus Davis, which relied on Granberry versus Greer, to say it was a discretionary analysis. They said, "We're not going to consider the discretionary issues raised in Esslinger and Granberry whether this dismissal would serve an important Federal interest. We're just going to say there's an obligation to impose this, and that the District" --
04-1324 +++$+++ 15914 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where is -- I see -- you're referring to page 4(a) and --
04-1324 +++$+++ 15915 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ 5(a), Your Honor.
04-1324 +++$+++ 15916 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. Which -- where is the sentence that says it -- that --
04-1324 +++$+++ 15917 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The obligation is seven lines from the bottom, and it's that last paragraph, where they're distinguishing Esslinger. And the sentence of the previous paragraph is where they say there's a "duty."
04-1324 +++$+++ 15918 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought that that duty is in connection with Rule 4.
04-1324 +++$+++ 15919 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, and then they -- - they rely on that duty to say that there is an obligation, in the next paragraph, and to distinguishing Essingler and say, "We don't have to go through this discretionary analysis, because there's an obligation." And so, our position is that even --
04-1324 +++$+++ 15920 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, the -- it's right that there's an obligation if it notices it in the first instance on its first review.
04-1324 +++$+++ 15921 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we don't necessarily agree, Your Honor, if -- we don't necessarily agree that --
04-1324 +++$+++ 15922 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And suppose, under the review proceedings, that District Court is looking at it for the first time, without yet having required a response, and he sees a statute of limitation. I assume there's an obligation.
04-1324 +++$+++ 15923 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under Rule 4?
04-1324 +++$+++ 15924 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Sure.
04-1324 +++$+++ 15925 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, if you'd look at what rule --
04-1324 +++$+++ 15926 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, if -- suppose it's an open-and-shut violation of the statute of limitations, or barred by the statute of limitations -- -
04-1324 +++$+++ 15927 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Uh-huh.
04-1324 +++$+++ 15928 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- does District Court have discretion to refer to the State for a response?
04-1324 +++$+++ 15929 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, we would say that --
04-1324 +++$+++ 15930 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Really?
04-1324 +++$+++ 15931 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that they must do that, because, as this Court recognized in Pliler versus Ford, it's almost never apparent on the face of the petition --
04-1324 +++$+++ 15932 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, my --
04-1324 +++$+++ 15933 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that there's an --
04-1324 +++$+++ 15934 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, my --
04-1324 +++$+++ 15935 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- open-and-shut --
04-1324 +++$+++ 15936 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- my hypothetical is that it is.
04-1324 +++$+++ 15937 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay. I would think that even if it were apparent on the face of the petition, that the -- Rule 4 has two parts. In the first part of it, the nonadversary screening function, only applies when the petitioner is plainly not entitled to relief. And I think the better view of that -- of that clause is -- - although there are some arguments in our brief that don't take this view -- I -- after having given it thought, I think the better view of that clause is that it does not apply to an affirmative defense that's subject to waiver or tolling, that you can't say, based on an affirmative defense that's subject to waiver or tolling, that someone is plainly not entitled to relief. You could say, for example --
04-1324 +++$+++ 15938 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Because the other -- because the other side might make a mistake and not recognize it?
04-1324 +++$+++ 15939 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Or it might be tolled, Your Honor. And there are also four different trigger dates in the statute for when it can first apply, that you aren't going to be able to tell, necessarily, three of them from the face of the petition.
04-1324 +++$+++ 15940 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or the other side may say, "Although technically the statute of limitations applied here, taking all considerations into account we think that this prisoner acted with reasonable promptness, and perhaps the delay was somewhat attributable to the State." Do you think that that's a proper consideration?
04-1324 +++$+++ 15941 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Your Honor. There -- - the statute of limitations in AEDPA is designed to prevent delay, not to -- as Congress has said, it's not a forfeiture provision; it's designed to move these complaints along speedily, particularly in capital cases, of which this is not one.
04-1324 +++$+++ 15942 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you -- it could be argued that the Federal Government wants to move them along speedily, whether or not the State government wants to.
04-1324 +++$+++ 15943 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly. And their --
04-1324 +++$+++ 15944 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, that would suggest that the State's voluntary waiver of a statute of limitations should not make any difference. It's a Federal -- it's a Federal interest involved, not a State interest.
04-1324 +++$+++ 15945 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they -- there is an interest in judicial efficiency that's at issue here, too, but we submit that it's far more inefficient for the Court to put limitations under this first category of Rule 4 and say that the Court must, on its own, look at limitations every time, without assistance from the parties, than it is to make the State do its job. I mean, they're the ones, as this --
04-1324 +++$+++ 15946 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, we could --
04-1324 +++$+++ 15947 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Court recognized --
04-1324 +++$+++ 15948 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- we could -- we could agree with you that there is isn't an obligation on the Federal judge to raise it, but the question is, you know, the -- it could be a "must," it can be "may not," or it could be "may."
04-1324 +++$+++ 15949 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-1324 +++$+++ 15950 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And why shouldn't we treat this as a "may"? The judge noticed the clerical error and called it to the party's attention by an order to show cause.
04-1324 +++$+++ 15951 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the proper procedure under Rule 4 is not to call it to the party's attention in that way; it's --
04-1324 +++$+++ 15952 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We're past Rule 4, because an answer has been ordered.
04-1324 +++$+++ 15953 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-1324 +++$+++ 15954 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So -- and it's only when the answer comes in that this issue is spotted.
04-1324 +++$+++ 15955 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. That's correct. And I agree with you that the proper procedure after that would be to bring the issue to the party's attention and let the State decide whether it wanted to file a motion to amend under Rule 15; and, if it did so, there are very clear standards that are applied, that were not applied in this case, to decide --
04-1324 +++$+++ 15956 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There are very what standards?
04-1324 +++$+++ 15957 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are very clear standards, Your Honor --
04-1324 +++$+++ 15958 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, "leave shall be freely given."
04-1324 +++$+++ 15959 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but there are also -- it's a -- again, it's a discretionary determination, and there are prejudice issues that should be considered as the --
04-1324 +++$+++ 15960 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, what would be the prejudice that could be claimed by the habeas petitioner?
04-1324 +++$+++ 15961 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the prejudice in this case is that the standards of Rule 15 were not considered; but, in addition, there are -- there are well-recognized decisions, both from this Court and from the Courts of Appeals, that went -- that says a judge may deny leave to amend when the -- at the time the concession is made. And the answer -- the State had full information. And the State admits here that it had all the information it needed to make the limitations calculation attached to its answer, in which it conceded timeliness, and then -- but then waited a year, or several months, to bring it up later. And so, we would argue, if this were a Rule 15 analysis, that it would not be appropriate for the Court to allow the amendment.
04-1324 +++$+++ 15962 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are you --
04-1324 +++$+++ 15963 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Now, also --
04-1324 +++$+++ 15964 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are you saying that the error is simply that it wasn't done via Rule 15? What if we were to say that the same considerations apply when it's simply raised sua sponte by the -- by the -- by the District Court? What would be your objection to that?
04-1324 +++$+++ 15965 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that would be -- that's the Respondent's position, and I think, in addition to those considerations, if you disagree that this is a forfeiture, that -- and you disagree that this is an express waiver, and you get to their position that, you know, this is a discretionary test and you should just apply the same Rule 15 factors, I think you need to also apply a presumption against sua sponte consideration. There's one way to do it under Rule 4, and that's the most efficient way. It's also the way that comports with judicial neutrality in the adversary system. And so, to encourage people --
04-1324 +++$+++ 15966 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you couldn't do this under Rule 4, because, as you, I think, recognized, that, just from the petition, from the habeas petition, you couldn't tell.
04-1324 +++$+++ 15967 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, Justice --
04-1324 +++$+++ 15968 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There wasn't --
04-1324 +++$+++ 15969 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Ginsburg, I misspoke. I meant to say Rule 15. But if -- to encourage parties to do this under Rule 15, the Court should adopt a presumption against sua sponte consideration. And this -- in Arizona versus California, which they rely on heavily, they say that this type of consideration should be reserved for rare circumstances. And we cite several cases in our brief where that -- that also support that proposition. So, we would submit, if you do get to this analysis, Justice Alito, that there should also be a presumption involved.
04-1324 +++$+++ 15970 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if you think it's -- if it's done under Rule 15, would the considerations necessarily be exactly the same in a habeas case as in an ordinary civil case?
04-1324 +++$+++ 15971 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not necessarily. I mean, there -- but we do submit that the timing issue that we just raised, about them having full information, would certainly be something we'd argue to the District Court in its discretion. But another thing you have to consider, to your point, is that limitations is something that's -- that has a subtle meaning and derive -- and is directly addressed by Civil Rules 8 and 12. And this Court, in Gonzalez and Mayle, says that when that happens, that's where you start, with the civil rules. And then you ask if there's anything in the habeas statutes or rules that's inconsistent with that approach, with the -- with the forfeiture approach of the civil rules.
04-1324 +++$+++ 15972 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but the civil rules allow for amendment.
04-1324 +++$+++ 15973 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-1324 +++$+++ 15974 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There's 8(c), and there's 12(b), but there's also 15.
04-1324 +++$+++ 15975 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I agree. And that was not used in this case. I -- and I -- we agree that that would be an appropriate way to raise this.
04-1324 +++$+++ 15976 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It seems the height of technicality to say that the judge could suggest, "Now, State, I will entertain a motion to amend the answer, under Rule 15," instead of saying, "I'm issuing an order to show cause why this action is not out of time."
04-1324 +++$+++ 15977 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't agree, Your Honor, because there's a specific analysis that goes along with Rule 15 that wasn't applied here. But, in addition to that, there's an efficiency interest to be served by having the State calculate and make the motion, rather than putting the burden on the Federal Court to do it. The Court, we submit, should make the State -- they -- this Court, in Pliler, said the State's in the best position to make the limitations calculation. It's an error-prone fact-intensive, burdensome calculation, and they shouldn't be allowed to foist that burden on the Court. The Court should make them do their job. And so, our position is that that's the reason that it should be done under Rule 15. It also doesn't put the State in the position of being an advocate -- excuse me -- it doesn't put the Court in the position of being an advocate for the State and having them say -- having the Court directly across the bench from the Petitioner, not involving the State, saying, "Here are -- I'm developing some arguments on behalf of the State now why this is untimely. What do you have to say about it?" That's --
04-1324 +++$+++ 15978 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why does -- proceeding under 15 does not do that; whereas, proceeding this way does?
04-1324 +++$+++ 15979 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, proceeding under 15, I -- proceeding under 15, you would say to the State, "Do you want to make a motion to amend?"
04-1324 +++$+++ 15980 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wink, wink?
04-1324 +++$+++ 15981 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well -- but -- [Laughter.]
04-1324 +++$+++ 15982 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, there is some value in that, I think, particularly where the State has expressly conceded timeliness. I mean, the magistrate judge in this case, all that he had before him was the express concession from the State. He never -- the State never said anything in the District Court, even after he issued his notice to the Petitioner to show cause why it wasn't untimely. So, the magistrate judge, all he had before him was the State's position that it was timely.
04-1324 +++$+++ 15983 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't that concern present in Granberry, as well? And yet, the Court reached the opposite result there.
04-1324 +++$+++ 15984 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Your Honor, because in Granberry the State raised the issue for the first time on appeal, the court did not. So, there, you do have the adversary system at work. In addition, Granberry is different for several other reasons. Exhaustions is, unlike limitations, unique to habeas corpus; it's not covered by Rule 8. And, also, it's a common-law limit that this Court has developed on habeas relief. It's not a statutory affirmative defense. And, as our brief points out, Congress has treated these very differently when it codified them in AEDPA. And this applies not only to exhaustion, but nonretroactivity, abuse of the writ, and procedural default. I'm sorry, procedural default was not codified. But they other defenses -- the other limits on habeas relief that the Petitioner relies on were codified very differently in AEDPA; whereas, for exhaustion it says, "Relief shall not be granted unless you exhaust." That's a substantive limit on relief. For limitations, however, it says when you're --
04-1324 +++$+++ 15985 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ One that requires the court to raise it sua sponte, even if it's not raised by the State.
04-1324 +++$+++ 15986 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I beg your pardon?
04-1324 +++$+++ 15987 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ One that requires the court to raise it sua sponte, even if not raised by the State, correct?
04-1324 +++$+++ 15988 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Potentially, yes, if you codify it as a substantive limit on relief. Whereas, limitations is simply codified -- it says, "a period of limitations shall apply." It doesn't say, "Relief shall not be granted unless you file within one year." It doesn't even say, as it does in the capital context, for certain -- for capital opt-in States, that it must be filed by a certain time. It just says "a period of limitation." And that has a settled meaning that goes along with it.
04-1324 +++$+++ 15989 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Your position is, it should be like any other civil case.
04-1324 +++$+++ 15990 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. And --
04-1324 +++$+++ 15991 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You can raise it sua sponte, we've said, in exceptional circumstances.
04-1324 +++$+++ 15992 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1324 +++$+++ 15993 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't know what they are.
04-1324 +++$+++ 15994 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I --
04-1324 +++$+++ 15995 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if --
04-1324 +++$+++ 15996 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I'm not --
04-1324 +++$+++ 15997 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- they're not there --
04-1324 +++$+++ 15998 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ One --
04-1324 +++$+++ 15999 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- then the judge could say, "You know, I'm surprised that you haven't raised statute of limitations."
04-1324 +++$+++ 16000 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Uh-huh.
04-1324 +++$+++ 16001 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And then the lawyer for the State says, "Oh, my goodness. Quite right. We'd like to amend."
04-1324 +++$+++ 16002 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly.
04-1324 +++$+++ 16003 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And we don't --
04-1324 +++$+++ 16004 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And there could be --
04-1324 +++$+++ 16005 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- have to decide --
04-1324 +++$+++ 16006 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- good reasons to amend. For example, the Bendolph case that you have before you, there was an alteration in a date, and the Third Circuit didn't ascribe that to any particular person, but, nonetheless, the documents that the State had before it had the wrong date on it from which to calculate.
04-1324 +++$+++ 16007 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Must there be good reasons for the judge to say, quote, "I'm surprised that you haven't raised a statute of limitations defense"?
04-1324 +++$+++ 16008 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I --
04-1324 +++$+++ 16009 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Must there be good reason for that? And, if not, aren't you asking us to waste our time?
04-1324 +++$+++ 16010 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so.
04-1324 +++$+++ 16011 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why don't you do it the easier way and --
04-1324 +++$+++ 16012 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Your Honor. You're -- if you put -- if you put limitations as something that the judge must raise, I think you're asking the judge to waste his time rather than leaving it to the parties to raise it.
04-1324 +++$+++ 16013 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what's your answer as to whether there is any limitation on the judge just suggesting, "By the way, you know, is there some reason why you haven't pleaded statute of limitations?" Can a -- can a judge do that?
04-1324 +++$+++ 16014 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would think that, you know, it would be evaluated under an abuse-of-discretion standard, and I haven't -- I haven't given much --
04-1324 +++$+++ 16015 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what -- when would it be an abuse of discretion?
04-1324 +++$+++ 16016 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For a judge to --
04-1324 +++$+++ 16017 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1324 +++$+++ 16018 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- invite the State to amend?
04-1324 +++$+++ 16019 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
04-1324 +++$+++ 16020 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would say if -- it would be, in this case, perhaps, because of the State's express concession to the contrary, and -- so that that might be one circumstance. But I don't think this --
04-1324 +++$+++ 16021 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it wouldn't --
04-1324 +++$+++ 16022 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Court needs to --
04-1324 +++$+++ 16023 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- be an abuse of --
04-1324 +++$+++ 16024 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- circumscribe --
04-1324 +++$+++ 16025 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It wouldn't be an abuse of discretion for him to suggest an amendment if he's got the opportunity to rule on the amendment later on. And then presumably the ruling would be reviewed for abuse of discretion.
04-1324 +++$+++ 16026 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's a good point, Your Honor. I don't think this Court needs to circumscribe the judge's authority to suggest an amendment. I think you could wrap it all into the ruling and evaluate that for abuse of discretion.
04-1324 +++$+++ 16027 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I suppose it might be an abuse of discretion if you'd already had a hearing and took -- and decided that there was merit to the plaintiff's claim, and then decided, "Well, now I'm going to just throw it out on limitations," might be an abuse of discretion.
04-1324 +++$+++ 16028 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would agree with that, yes, Your Honor.
04-1324 +++$+++ 16029 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, then why doesn't that same standard apply to the decision of the Court to raise it sua sponte?
04-1324 +++$+++ 16030 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because in this case you have an express concession. And so, it's a -- this Court has said, and other courts have said, that when you have an express concession, it's error to override that concession and impose the defense sua sponte. The Court should, instead, assume that the concession is valid and that refusal to honor it is an abuse of discretion. You --
04-1324 +++$+++ 16031 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Were those --
04-1324 +++$+++ 16032 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- don't want to strip --
04-1324 +++$+++ 16033 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- cases -- were those cases of a miscalculation on the part of the State? The judge's view was that the State had miscalculated under eleventh-amendment -- under Eleventh Circuit precedent.
04-1324 +++$+++ 16034 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, most of those cases involved other issues, like exhaustion and procedural default, where the State later came back and said, "We were mistaken that they exhausted," or, "We were mistaken that they didn't procedurally default this claim." So, it's a similar mistake claim, but, nonetheless, the State affirmatively pleaded the opposite of either exhaustion, procedural default, or limitations. And the court held them to that.
04-1324 +++$+++ 16035 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, you'd say it would be okay if the State didn't expressly concede the statute of limitations point.
04-1324 +++$+++ 16036 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Possibly. But, again, I think if you -- if you use the analysis of the civil rules that applies here, by virtue of Civil Rule 81 and Habeas Rule 11, that it's error -- our first position is that it's error to override the forfeiture --
04-1324 +++$+++ 16037 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's --
04-1324 +++$+++ 16038 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- except in --
04-1324 +++$+++ 16039 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's what I thought your --
04-1324 +++$+++ 16040 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1324 +++$+++ 16041 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- position was.
04-1324 +++$+++ 16042 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Except in exceptional --
04-1324 +++$+++ 16043 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. So, this --
04-1324 +++$+++ 16044 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- circumstances.
04-1324 +++$+++ 16045 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- a fallback position.
04-1324 +++$+++ 16046 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. That's correct. And then our second fallback position is that even if Your -- even if Your Honors agree that the court could -- has discretion to override the express waiver, that there's at least a discretionary analysis that has to apply under Civil Rule 15 that's coupled with a presumption in -- against sua sponte dismissal that the Eleventh Circuit didn't apply here.
04-1324 +++$+++ 16047 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why, just out of curiosity -- I'm not familiar with the actual practice of a lot of civil cases, but when somebody -- let's say the defendant in an ordinary tort case forgets to put in the statute of limitations, and the case is all tried and finished. At the very end, he says, "Oh, my God." And now he goes in and asks to amend it under Rule 15. Do judges normally say, "Fine"?
04-1324 +++$+++ 16048 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- they normally say no, that that's --
04-1324 +++$+++ 16049 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because it's --
04-1324 +++$+++ 16050 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- because the case has gone on down the road on another theory, and it's prejudicial to the parties, and it wastes -- it's a waste of the court's judicial resources to --
04-1324 +++$+++ 16051 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But here, nothing --
04-1324 +++$+++ 16052 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- bring it up.
04-1324 +++$+++ 16053 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- happened. Nothing happened. There was --
04-1324 +++$+++ 16054 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1324 +++$+++ 16055 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The answer was put in, and then there were no further proceedings. Nothing else went on in the court.
04-1324 +++$+++ 16056 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1324 +++$+++ 16057 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's quite different -- I don't know any judge that would allow a defendant, after the trial is over, to raise the statute of limitations. But, up front, it's a different situation.
04-1324 +++$+++ 16058 +++$+++ TRUE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we disagree that this was up front, Your Honor. The answer in a -- habeas corpus cases, of course, heavily deals with the merits, as it did in this case. And then, Mr. Day replied. And, as the State's amicus brief points out, that's all that usually happens in most habeas corpus cases. So, we were near the end of the proceeding, as -- if you think of the run-of-the-mine habeas corpus case. And, also, speaking of run-of-the-mine habeas corpus cases, this is a very rare instance. There are -- there are lots of procedures for courts to vindicate the interest that the State describes in comity, finality, and federalism, whether inviting a motion to -- whether ordering the State to file a motion to dismiss under Rule 4, which we submit would be the proper procedure, or, if the State fails to raise it in its answer in certain circumstances, inviting them to file a motion to amend under Rule 15. That takes care of these interests in the run-of-the-mine case. There's no need to vindicate those interests in this case by creating an exception to the rules. This Court has said, in Lonchar and in Carlisle, that where there are civil rules that deal with the -- and habeas rules -- that deal with how these things happen, the Court cannot use its inherent powers to circumvent those rules. And we submit that that's exactly what the court did here. Now, in addition, I'd like to point the Court to New York versus Hill, which is not cited in our briefs, but can be found at 528 U.S. at 114 to -15 and also 118, on this express waiver issue. And this is a case where the Court recognized exactly the point that we make here, that not all -- you don't always have to show intentional relinquishment of a known right for that to be the standard for waiver. It depends on the right at issue. There, it was an International Agreement on Detainers Act case, and the Court held that the -- that the defendant's assent to delay waived the time limitation of the Interstate Agreement on Detainers Act, expressly waived it. And that's our -- that's our position here, is that the State's affirmative pleading of timeliness is an express waiver. In addition, the State could -- certainly couldn't prevail, under the Brady versus U.S. standard that applies to plea agreements, for saying that its concession was not knowing. There's no -- there's no suggestion here that the State was misled. There's no suggestion that they didn't have all the information they needed to make the calculation. And Brady says that simply misapprehending a factor -- a relevant factor in the analysis is not enough. And that's at 397 U.S. at page 757. In addition, the State makes an argument about policies beyond the concerns of the parties, and that the State -- that those should be vindicated in this case. But I'd like to point out that this Court has not adopted the "beyond the concerns of the parties" test; rather, it's acknowledged that Congress entrusts even important public policies, like comity, finality, and federalism, to the adversary process; and, thus, their -- and even private rights that benefit society can be waived, in Christiansburg Garment, for example. With the Court's permission, I'd like to reserve the balance of my time.
04-1324 +++$+++ 16059 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Counsel. Mr. Kise.
04-1324 +++$+++ 16061 +++$+++ FALSE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The District Court's sua sponte action here was consistent with AEDPA and the habeas rules. It was consistent with this Court's habeas jurisprudence. And it was consistent with the purpose behind, and not prohibited by, Federal Rules 8 and 12. This case is not about the State's waiver. And we would agree that -- with Justice Scalia, that the waiver is not the beginning and end of it. We're not conceding that the State, in fact, waived it here, but we're saying that that's not essential to the answer to this question, because it's not the beginning and the end of the analysis. This case is also not about, as the Petitioner alleges in the brief and makes inference on the Eleventh Circuit's opinion, about obligating courts to act in all circumstances. This case is about the proper exercise of discretion. And what we're really asking this Court to do is really three things: to acknowledge again that this authority exists, to say that this is when the court may exercise that authority under the circumstances presented by this case, And then, thirdly, that this is how the Court goes about exercising this authority, by providing notice and opportunity to be heard, and conducting an analysis of prejudice. And --
04-1324 +++$+++ 16062 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You think the court "must."
04-1324 +++$+++ 16063 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor.
04-1324 +++$+++ 16064 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, don't you think that's what this court thought? And, if so, shouldn't we perhaps send it back to see whether, if the court knew that it had discretion, it would have done this?
04-1324 +++$+++ 16065 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, respectfully, I don't think that that's what the Eleventh Circuit thought. I think that that is an interpretation of the Eleventh Circuit's language. However, I think that where the phrase that Counsel pointed to in the opinion -- on page 5(a), referencing "obligation" -- I believe that the Court there was referring to, specifically under Rule 4, that the court has this obligation. I think it -- because it's in that discussion that the Court is talking about the obligation. And I would submit that, indeed, under Rule 4, in response, I believe, to Justice -- a point Justice Kennedy raised, I would say that, under Rule 4, I think it is obligation. I think what Rule 4 is, is a reflection of Congress -- excuse me -- of the rule advising the court that, "You must exercise this authority that you already have at this particular time. This is the time when you need to be looking for these things."
04-1324 +++$+++ 16066 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but, Mr. Kise, the -- - Mr. Busby told us that the reference was in the following paragraph, and it is the sentence, "A Federal Court that sits in collateral review of a criminal judgment of a State Court has an obligation to enforce the Federal statute of limitations." That's the sentence that suggests that the Court of Appeals thought that there was an obligation, the District Court, to raise the statute of limitations on its own motion.
04-1324 +++$+++ 16067 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor -- and I was referring to that sentence, and perhaps I wasn't clear, but I would -- I would say that they are still talking about Rule 4. But even if they're not talking about Rule 4, even if, in fact, this Court believes that the District -- that the Circuit Court's analysis is flawed, then we must keep in mind that this Court is reviewing judgments, not opinions. And this Court could easily do what it did in Gonzalez, which is, even though the analysis is not consistent with what this Court -- I mean, frankly, if the Court takes that view with what we're asking the Court to do here -- but you can nevertheless affirm the judgment. Because the District Court did, in fact, get it right. The --
04-1324 +++$+++ 16068 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What --
04-1324 +++$+++ 16069 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- District Court --
04-1324 +++$+++ 16070 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What would you say -- assuming that we're beyond Rule 4, what would you say simply to a rule that said, "Yes, we recognize that there remains a discretion -- not an obligation, but a discretion -- on the part of the court to raise this." But, just as a -- as a general rule, judicial efficiency is better served by avoiding the use of discretion unless the State, in fact, raises the limitations issue, itself. The courts have a lot of things to do, and they shouldn't be spending their time canvassing pleadings to see whether there might be an issue that the State missed; so that in the absence of some extraordinary circumstance, it would be an abuse of discretion to exercise it as the -- as the Circuit suggests it should have been exercised here. What would you say to that position?
04-1324 +++$+++ 16071 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would say, respectfully, Your Honor, that that is somewhat inconsistent, if not entirely inconsistent, with what this Court said in Granberry and Caspari, dealing with the same sort of raising of affirmative defenses. From that standpoint, from a procedural standpoint, I would say that Granberry and Caspari are procedurally indistinct, in that this Court said that it is appropriate, in these circumstances, for the court to look at affirmative defenses. Obviously, they have substantive differences, which my -- which Counsel has pointed out, but, from a procedural standpoint, were the Petitioner to prevail here, I would think this Court needs to recede procedurally from Granberry and Caspari --
04-1324 +++$+++ 16072 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What --
04-1324 +++$+++ 16073 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- because the Court --
04-1324 +++$+++ 16074 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What, then, would be the significance here of the fact that the State conceded that there was no limitations problem? In a case like that, wouldn't it be a good rule to avoid judicial inquiry?
04-1324 +++$+++ 16075 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think that the State's concession, as Justice Scalia pointed out, is not the beginning and end of it, in the first instance. Secondly, it --
04-1324 +++$+++ 16076 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, but it bears on the exercise of discretion.
04-1324 +++$+++ 16077 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, it does. And we would agree that it bears on the exercise of discretion. And, in a circumstance such as this one, where the attachments, the record itself, indicated that there was a discrepancy between the position the State was taking and what the record actually reflected, it was appropriate for the District Court to raise the issue and then consider the interests of the parties. If the District Court had been presented simply with nothing in the record, just a blanket statement by the -- by Florida that, "We concede," and there was nothing to raise the question, then we would -- we would say that it's not appropriate for the court to simply pull issues out of the sky.
04-1324 +++$+++ 16078 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That would be an abuse.
04-1324 +++$+++ 16079 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. I would say that it would be an abuse.
04-1324 +++$+++ 16080 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ District judges can't comment on the cases? And -- they suddenly raise something, curious about something; and, lo and behold, it becomes the subject of an amendment.
04-1324 +++$+++ 16081 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice --
04-1324 +++$+++ 16082 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's a violation of -- I mean, what I'm driving at is, I don't really understand Rule 15 thoroughly, because I'm not a trial lawyer. And why do we have to decide every matter? Why don't we let the District judge free to run his trial and just say, "Hey, we don't want to proliferate law. It's complicated enough already. Let's leave it to Rule 15, whatever that might be"?
04-1324 +++$+++ 16083 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think leaving it to Rule 15 is one way to do it. And doing it in these particular cases is another way. Giving the courts discretion to raise the --
04-1324 +++$+++ 16084 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but the other way means we're now going to have a new area of law. The new area of law consists of habeas law involving what is the equivalent of an amendment suggested by the judge to bring up a statute. That would be good, because West would then have five more pages, with a new keynote -- [Laughter.]
04-1324 +++$+++ 16085 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and there would be more for lawyers to look up. Whereas, if you just say Rule 15, it's finished.
04-1324 +++$+++ 16086 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Respectfully, Your Honor, I believe this Court's already done that, though, in Granberry and Caspari. I mean, that's what you've already said, is that, under -- that habeas is different. And I think it's important to point out, we're not asking for a different construction of Rules 8 and 12. We're asking this Court to apply the same exception that is applied in the extraordinary case. The Petitioner takes the position -- and Petitioner is alone in this contention -- that "ordinarily" means "never." Even the law professor amici don't take position, and there is not a case that we have been able to locate in the country that says that "ordinarily" means "never," that --
04-1324 +++$+++ 16087 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would you say it's --
04-1324 +++$+++ 16088 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the ordinary rule --
04-1324 +++$+++ 16089 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- means it's "hardly ever"? I mean, we do follow the principle of party presentation. And judges are not supposed to be intruding issues on their own, they are supposed to follow the party's presentation. So, would this be -- if it's not "never," would it be at least "hardly ever," that it's appropriate for a judge to interject an affirmative defense on his own motion?
04-1324 +++$+++ 16090 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, I would say that it is "hardly ever," and that's what we're dealing with here. It's what the Court was dealing with in Granberry and Caspari, these limited circumstances where the interests transcend the interests of just the parties before the court and where it is, from the -- from a review of the record, as District judges do every day looking at the record and identifying issues, and to avoid the sort of conundrum that's presented by the Petitioner agreeing that the District judge could simply look at the State and, as Justice Scalia said, wink, wink, "It's okay for you to raise this issue now," to avoid the roundabout that is occasioned by that. If it is, in fact, permissible in these circumstances for the District Court to raise the issue, then doing it the way the court did it here, and the way that was approved in Bendolph, and the way that we believe the Eleventh Circuit approved it, is entirely appropriate, because it's consistent with what this Court said in its habeas jurisprudence.
04-1324 +++$+++ 16091 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What if Congress wanted to leave it to the State to waive the statute of limitations provision? How could it have made that clear? I mean, I would have thought that if they made it a statute of limitations provision instead of a jurisdictional provision -- I mean, they could have said, you know, "No jurisdiction if it's filed beyond a certain date, and we mean it." But it put it as a statute of limitation, which normally is waivable. And I would think that that is an indication that Congress thought, "Really, if the State thinks that in this particular case we shouldn't hew to the technicality of the statute of limitation, the State ought to be able to waive it.
04-1324 +++$+++ 16092 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I think that's why it is set up the way it is, Your Honor, but it's just that the waiver is not the beginning and end of it. For example, where the State might wish to waive the statute of limitations and simply move to the merits would be in a situation where there might be some complex argument over equitable tolling and where the merits are relatively straightforward. Rather than spending the court's time and the resources involved and litigating over equitable tolling, the State might simply say, "We realize that there is this technicality here, but we're going to get to the merits, because otherwise we're going to spend an inordinate amount of time litigating."
04-1324 +++$+++ 16093 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's always a technicality. What you're saying is, the only time that the State can do that is when the answer to the statute of limitations is unclear. And I'm saying sometimes the State may say, "The answer is clear, but doggone it, this is just too picky-picky, too technical in this particular case."
04-1324 +++$+++ 16094 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And, Your Honor, our test allows for that, as well. It's up to the District Court to decide whether, in that particular case, the circumstances require the application. There is some discretion. I don't think that the State could --
04-1324 +++$+++ 16095 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would it -- would it always be an abuse of discretion for the District Court to do this if the State wanted to reach the merits?
04-1324 +++$+++ 16096 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so, Your Honor, because it would depend on why the State wanted to reach the merits. Perhaps the State was engaging in some sort of gaming of the system, as Petitioner alleges could happen. If there was, in fact, some actual sandbagging going on, where the State is holding this issue in reserve as a strategic matter, and the District Court simply says, "No, we're not going to allow that." And it would really be the same analysis under Rule 15. If the court were to have sandbagged, so to speak, under Rule 15 and waited to file a late amendment, the court would engage in the same analysis. The court would say, "Well, wait, do I really want to permit the State, now, to assert this?"
04-1324 +++$+++ 16097 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There's no question of -- put aside a sandbagging case, there's no question of sandbagging, and that the -- the State just wants to litigate on the merits rather than on the statute of limitations.
04-1324 +++$+++ 16098 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would not always be an abuse of discretion. I --
04-1324 +++$+++ 16099 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In other words, can they have it -- would it be an abuse of discretion in an express waiver case as opposed to a forfeiture case?
04-1324 +++$+++ 16100 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that you could say, in all circumstances -- no, Your Honor, it would not be an abuse of discretion in all circumstances. But I do think the District Court needs to factor in the interests of the State and the reasons why the State is willing to proceed forward. And if the State, for example, is, as I believe an example was given by the court, that the State is -- believes that, "Well, perhaps it's appropriate to waive the statute here, or to not rely on the statute here, because of something maybe we have done, or that it -- the Petitioner didn't -- missed the deadline by a certain period of time, and we think that, in this particular case, it's all right to reach those merits." So, I can't -- I don't think we should say that it's always an abuse of discretion, but I think we need to leave it to District Courts to make that determination, just as this Court did in Granberry and Caspari. This Court gave District Courts that discretion, because these are the types of cases where that discretion is appropriate. This Court's already identified that, in habeas cases, we are to treat Rules 8 and 12 as the exception being applied, that these --
04-1324 +++$+++ 16101 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought in Granberry the Court gave the Court of Appeals that discretion, since it hadn't -- the point had been missed in the District Court, been missed by everybody, until the Court of Appeals.
04-1324 +++$+++ 16102 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, in fact, this Court did give the Court of Appeals that discretion, but even more so than we would give the District Court that discretion, because, Why should we wait for the process to get all the way to the Court of Appeals? If this Court is going to say it's appropriate for the Court of Appeals to look at an affirmative defense, then certainly, in keeping with that reasoning, it would be appropriate for a District Court to raise it before we've gone through the entire process of litigation in the District Court and then getting ourselves to the Court of Appeals.
04-1324 +++$+++ 16103 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You acknowledge at least this much, or am I incorrect? And it's important for me to know that. You acknowledge at least this much, that if we read this opinion, as you do not, to be saying that the court "must" do this so that the court was not really considering all factors in the exercise of its discretion, we would have to remand.
04-1324 +++$+++ 16104 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, I would not, and I'll tell you why I would not.
04-1324 +++$+++ 16105 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right.
04-1324 +++$+++ 16106 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's because, just as in Gonzalez, the Court is not reviewing the opinion. The Court is reviewing the judgment. And the --
04-1324 +++$+++ 16107 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But why would --
04-1324 +++$+++ 16108 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- judgment is correct.
04-1324 +++$+++ 16109 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- why would you deal with that hypothetical when the Eleventh Circuit, in all fairness, said, "We join the Second, Fourth, Fifth, and Ninth Circuit, and rule that, even though the statute of limitations is an affirmative defense, the District Court may review the timeliness of the 2254." That's what -- the question that the court thought it was deciding.
04-1324 +++$+++ 16110 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would agree that the court thought it was deciding discretion, but I was responding, I -- to what I thought was Justice Scalia's question about, What if this Court does not agree with that? If this Court believes that the Eleventh Circuit, in fact, was applying an obligation rule, a mandatory rule, then it would require remand. And I -- what I'm saying, Your Honor, is -- is that we would not, because the District Court applied the appropriate test. In the first instance, I would say that the Eleventh Circuit did not, in fact, apply that test, did not believe that it was obligated to, but if this Court were to disagree, as Justice Scalia has presented the hypothetical, then I would say that the District Court did, in fact, apply the correct test. The District Court, as noted in -- on page 8(a) of the petition appendix, the footnote in the magistrate's report and recommendation cites Jackson, the Eleventh Circuit case which stands for the discretionary proposition, and indicates specifically that it is relying on a discretionary test. And so, the District Court in this case, in fact, applied the test that we are advocating, and in -- and, frankly, got it right. The District Court applied discretion, raised the issue, provided a notice and an opportunity to be heard, conducted the analysis of prejudice -- there was no prejudice in this case -- and ruled, on that basis. And that ruling was consistent with this Court's habeas jurisprudence, and it was consistent with AEDPA and with the habeas rules.
04-1324 +++$+++ 16111 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why doesn't your position on the underlying merits of the timeliness question create an incentive for every habeas petitioner to file a cert petition?
04-1324 +++$+++ 16112 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure I follow your --
04-1324 +++$+++ 16113 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, you --
04-1324 +++$+++ 16114 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- your question, Your Honor.
04-1324 +++$+++ 16115 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- you only get the extra 90 days if you actually file, under your explanation for why this cert petition is -- why this habeas petition is untimely. In other words, if this individual had filed a cert petition with us, his petition -- his habeas petition would be timely. And he's only going to get the extra period, as I understand your position on the timeliness, if he files a cert petition.
04-1324 +++$+++ 16116 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand our position to be that they do not get the 90 days, postconviction. And if that is misstated in our brief -- but I -- certainly we're not attempting to encourage the filing of cert petitions by habeas petitioners. And we believe the statute provides for the 90 days, postdirect review, but not after following State postconviction. Once the State postconviction proceedings are no longer pending, meaning that they are completed for State purposes, not including the 90 days --
04-1324 +++$+++ 16117 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right.
04-1324 +++$+++ 16118 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that's when they terminate. That is our position.
04-1324 +++$+++ 16119 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Even if they file a cert petition.
04-1324 +++$+++ 16120 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-1324 +++$+++ 16121 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, doesn't that put them in the position of sometimes having to file that -- the habeas petition while the cert petition is still pending, if they file one?
04-1324 +++$+++ 16122 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, it might. It does present that conundrum. But that's what the statute provides. That is the way the statute has provided for it. And we think that interpretation is consistent, because there certainly -- as was referenced in the first oral argument, there is some expectation that the court might grant certiorari, but it's not in the -- the likely case. And so, to suspend the congressional purpose of moving these cases through the system on the chance that the one in a thousand, or perhaps more than one in a thousand, case is granted certiorari would not be an appropriate process to utilize. And I think the Circuit Courts bear that out. The opinions of all but one of the Circuits bear that -- bear that --
04-1324 +++$+++ 16123 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is there a conflict on the Circuits on that point? I don't know.
04-1324 +++$+++ 16124 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, one Circuit -- ten of the Circuits go in the direction that we advocate, and Abela, the Sixth Circuit case that is cited, I believe, by the Petitioner --
04-1324 +++$+++ 16125 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-1324 +++$+++ 16126 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- moves in the other direction. And it is only recently that they have done that. If the Court has no further questions, thank you.
04-1324 +++$+++ 16127 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Counsel. Mr. Hallward-Driemeier, we'll hear now from you.
04-1324 +++$+++ 16129 +++$+++ FALSE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: There is nothing in either the habeas rules or the Federal Rules of Civil Procedure that deprives the District Court of its authority sua sponte to recognize the untimeliness of a habeas petition. To the contrary, to the extent the rules speak to the issue at all, they confirm that in light of the significant social cost of Federal review of State Court convictions, the Federal Courts have a unique responsibility to weed out unmeritorious claims and to enforce the limitations on habeas review. Rule 4 imposes an obligation on the court to dismiss unmeritorious petitions without even calling for an answer by the State. Now, Rule 4 is not applicable here, but the absence of an obligation to note the deficiency sua sponte does not connote a prohibition on acting sua sponte; rather, it suggests that it lies in the court's discretion. That is exactly how this Court addressed similar question in Granberry, where it rejected the two extremes -- one, recognizing the limitation as jurisdictional, that the court was obligated to raise it sua sponte, but also rejecting the opposite extreme, that the court was prohibited to address an issue that had not been preserved in the District Court.
04-1324 +++$+++ 16130 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why, though, would we have a special rule in this respect for habeas cases? Same question I've had throughout. Treat it like any other civil case.
04-1324 +++$+++ 16131 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not really a special rule that we're advocating.
04-1324 +++$+++ 16132 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right, if it's not a special rule, then the answer to this is, just say, "No, you don't have to raise it sua sponte. Moreover, you cannot raise it sua sponte, except in exceptional circumstances," cite the three cases that said that. And, as far as you're suggesting it to people, you could do it just as much as you do in any other civil case, no special rule. If they want to move to amend, fine, end of case, we did it in a paragraph.
04-1324 +++$+++ 16133 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The relevant analogy in the civil context is not to what a court would do with a statute of limitations defense in the civil context, it is to what would the court do with respect to an affirmative defense that, like the habeas limitations, implicates broader social interests?
04-1324 +++$+++ 16134 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the same with strike suits. You know, there are a lot of class-action strike suits and so forth that at least one group of people think are terrible and the other group think are great. So, you say, "Well, we're going to have a special thing here for amendments in strike suits. Have a special amendment for some" -- you know, why proliferate law?
04-1324 +++$+++ 16135 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the Court recognized -- Arizona v. California is an example of the broader social interests that are implicated by the affirmative defense of res judicata. And the Court noted, in Arizona versus California, that it would be appropriate for the court to raise that defense sua sponte. And, of course, Plaut versus Spendthrift Farm says the same thing.
04-1324 +++$+++ 16136 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Not generally. Statute of limitations, like res judicata, they are 8(c) affirmative defenses, and preclusion doctrine is for the party to waive or not, just like the statute of limitations. I don't think there's any rule that says a judge in the run-of-the-mine case acts properly by interjecting preclusion into a case where no party has raised it.
04-1324 +++$+++ 16137 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, our point is that it is a matter for the court's discretion. And there may well be circumstances where it would be an abuse of discretion to interject a timeliness objection. For example, if the case had gone on for years, and a trial had been held, as Your Honor suggested in the question earlier, that might well be an abuse of discretion, but it would not -- for example, take the case where the District Court had dismissed, at the outset, on the merits, and it went up to the Court of Appeals, and the Court of Appeals said, "You know, that merits issue is a very difficult one. And, in fact, we think we might have to remand for an evidentiary hearing on that issue. But, you know, this case was untimely filed. We can dispose of it on that basis. And we can save all of those judicial and party resources by addressing that issue now." We think that would be an appropriate exercise of the court's discretion. Here, as Your Honor noted earlier, this was the first thing that happened in the District Court after the filing of the petition, the answer, and the reply. There was no waste of judicial resources by the fact that it was raised sua sponte by the court in the first thing that the court did after that briefing. There was no prejudice to the Petitioner, because it was omitted from the State's responsive pleading. There is -- as the Court said in Granberry, the failure to plead it perhaps waives the District -- the State's opportunity to insist on the defense. The State, because it said, in its answer here, erroneously, that the petition was timely filed, or if it had said nothing, would have waived its opportunity to stand on, and insist on, that defense. But it is not an absolute forfeiture. It does not bar the party from suggesting at a later time, "We would like to amend," or, in this case, the court to note it sua sponte. The court did, here, of course, give the Petitioner every opportunity --
04-1324 +++$+++ 16138 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Excuse me. From what you just said, I take it that means that even when the State is unwilling to change its mind and says, "No, we would still prefer not to assert the defense," you would allow the court to impose it.
04-1324 +++$+++ 16139 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We believe that the court is not absolutely limited by the defenses --
04-1324 +++$+++ 16140 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The answer --
04-1324 +++$+++ 16141 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- asserted by --
04-1324 +++$+++ 16142 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- is yes.
04-1324 +++$+++ 16143 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Yes. The court is not absolutely limited by the affirmative defenses asserted by the State. For -- and that is perhaps most easily seen with respect to affirmative defenses such as failure to exhaust, nonretroactivity. If the court was going to have to assess a brand-new constitutional claim that the habeas petitioner --
04-1324 +++$+++ 16144 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But with respect to some --
04-1324 +++$+++ 16145 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- was asserting --
04-1324 +++$+++ 16146 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- of those, of course, AEDPA specifically promulgates new rules about when they're waived, and not. And they -- Congress hasn't done that with respect to the statute of limitations.
04-1324 +++$+++ 16147 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. And obviously, as the State suggested, if the State didn't want to stand on the statute of limitations defense because, for example, it was particularly messy, there was going to be a lot of litigation about equitable tolling, it would in inappropriate for the court to insist on litigating that issue. But if, for example, the State said, "Well, you know, if we didn't stand on this defense, instead this Petitioner would go back to the State Court, and the State's Courts are going to be very hospitable to this claim. We think you're more likely to deny relief, so we'd rather have it litigated here," it would inappropriate for the State to try to force the Federal Court to litigate that issue instead of the State Court. These are all fact-specific, case-specific considerations. And that's what the Court did in Granberry. It remanded -- after setting aside both extreme positions, it remanded to the Court of Appeals for a case-specific application of discretion. As to the question of whether the Eleventh Circuit here believed that there was an absolute obligation, I think that it's relevant to note that, although there was one point at which it said, "The court was obligated to enforce the statute of limitations" -- and, of course, that's true if the State has preserved the defense -- there were three other points in the Court of Appeals opinion where it used discretionary or nonmandatory language. For example, at petition appendix 4(a), the court said that the District Court "may dismiss." At the petition appendix 5(a), it said that the State's failure to raise "does not bar" the court from acting sua sponte. Again, at petition appendix 6(a), the State's concession, quote, "does not compromise the authority of the District Court." All of those are phrased in more permissive language --
04-1324 +++$+++ 16148 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But, of course, "may" is -- "may" is embraced within "must." If you "must," you "may." [Laughter.]
04-1324 +++$+++ 16149 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, perhaps the -- - perhaps the even most clear indication of what the Court of Appeals viewed this is its citation to Jackson as an application of Jackson. And in Jackson there is no question, because Jackson said, quote, "The District Court possessed the discretion to raise sua sponte." And the -- and the magistrate judge, as the State's counsel, mentioned -- in footnote 1 of its opinion, cites that same standard and makes clear that it's raising this at a -- as a matter of its discretion. So, remand for the exercise of discretion would be -- serve no purpose in this case. If there are no further questions --
04-1324 +++$+++ 16150 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Counsel. Mr. Busby, you have 4 minutes remaining.
04-1324 +++$+++ 16152 +++$+++ FALSE +++$+++ MR. BUSBY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. I'd like to begin by addressing the "must" versus "may" issue that Counsel discussed. For the reasons I mentioned, I think the better reading of the Eleventh Circuit's opinion is that there was an obligation, and that the most clear indication of that is its distinction of Esslinger, which expressly applied a Granberry-type analysis. But, even if the Court believes that the Eleventh Circuit was only saying "may," and that the District Court was only saying "may," and recognized the that it had discretion -- and there is a footnote in the magistrate's opinion that cites to Jackson that says, "We have discretion" -- I would submit that if you read Jackson, it's a standardless discretion. There are no factors anywhere in Jackson of the type that this Court discussed in Granberry. It -- and there's no indication that the -- that the magistrate judge considered any of those factors. There's no indication that the Eleventh Circuit considered any of those factors. And it's certainly an abuse of discretion for a court to apply the wrong legal standard or fail to consider the relevant factors that channel that discretion. And so, we -- our position is that, because the factors under Rule 15 and the other factors in our brief were not applied, that a remand, at a minimum, is appropriate in this case. Also, I'd like to speak to Granberry and Caspari. Again, those involve exhaustion and nonretroactivity. And I submit that it's not correct to characterize those two doctrines as affirmative defenses; rather, the way that Congress codified them is on -- as substantive limits on relief, unlike "limitations," which it just said "period of limitations," which the commonly accepted meaning is an "affirmative defense." And so, that makes those very different from an affirmative defense, in terms of sua sponte consideration. Also, both "exhaustion" and "nonretroactivity" are unique to habeas. They're not mentioned anywhere in Rules 8 and 12. Whereas, "limitations," of course, is mentioned explicitly. And so, our position is that Rule 8 and 12, not necessarily always, but at least in all but extraordinary cases, would prevent the judge from raising this sua sponte. Also, I would say that the rules that we rely on don't deprive the court of sua sponte authority, they channel that authority. Under Rule 4, they can plead it, or the court can make a motion to dismiss -- ask the -- order the State to make a motion to dismiss based on limitations under Habeas Rule 4. They can plead it in their answer, under Habeas Rule 5 and Civil Rules 8 and 12, or they can amend their answer, under Civil Rule 15. That's the way the drafters of the rules wanted them to do this. And Lonchar and Carlisle say they cannot -- that a judge cannot use his sua sponte power to circumvent the requirements of those rules. Finally, I'd like to mention that civil -- the statutes of limitations in civil cases also implicate broader social interests. And some of them, we've discussed in our brief. And, even more so, because there are lots of protections in AEDPA cases that don't apply in civil cases. There are presumptions of correctness and those sorts of things. But courts in civil cases, nonetheless, say that statutes of limitations can be waived. And the result should be no different here. Thank you.
04-1324 +++$+++ 16153 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Counsel. The case is submitted.
04-1327 +++$+++ 16158 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Holmes v. South Carolina. Mr. Blume.
04-1327 +++$+++ 16160 +++$+++ FALSE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, may it please the Court: In this case, the South Carolina Supreme Court took the second of two recent steps that dramatically curtail a defendant's ability to create a reasonable doubt as to his innocence by presenting evidence that another individual committed the crime. The first step came in 2001 when, in State v. Gay, the court held that the admissibility of third party guilt evidence was dependent on the strength of the prosecution's case. The second step, which occurred in Mr. Holmes' case, holds that third party guilt evidence is inadmissible whenever the prosecution has presented strong forensic evidence of the defendant's guilt.
04-1327 +++$+++ 16161 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, there's some dispute as to whether that -- that is really what -- what it held. And there's a big difference. If -- if you just say whenever you -- whenever the prosecution has a strong case, you can't introduce other guilt, or whether all that the court is saying is that one of the elements that you consider in determining whether to admit this -- this third party is not just -- it's the comparative weakness of the third party case. You don't blind yourself to -- to the strength of the prosecution's case. Will you say it was bad even if it was the latter that the court was -- was referring to? Are you saying you cannot consider the strength of the prosecution's case at all in determining whether to allow in third party guilt evidence?
04-1327 +++$+++ 16162 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Scalia, I am. It's not necessary for a ruling in our favor in this case. It's not contingent here because at a minimum, the South Carolina Supreme Court rule here in describing it, they said in State v. Gay we held that in cases where there is strong evidence of guilt, including strong forensic evidence, evidence that a third party committed the crime is not admissible. That is a categorical rule of exclusion no matter how you cut it. But even if you deemed that there is some discretion left in the system, it is still unconstitutional because what the South Carolina system requires is a reasoning backwards, that the admissibility of evidence of the defendant's innocence is conditioned on the judge's assessment of the likelihood of the defendant's guilt.
04-1327 +++$+++ 16163 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I -- I suppose that in a purely discretionary system -- I -- I can't quite think of the hypothetical -- the strength of the prosecution's case may bear on the assessment of relevance and materiality as to the evidence the defense wants to introduce. If -- if the evidence of identification is -- is quite clear -- is quite clear -- and then there's some witness of marginal credibility that says he was in another city, I think that may affect the trial court's balance. I -- I take the thrust of your point, that the strength of the case makes it more important to introduce the third party evidence, not -- not less. I -- I take that point. But just as -- as an absolute rule, I'm not sure that the strength of the case is always irrelevant. That's what I'm saying.
04-1327 +++$+++ 16164 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that it is possible that under some circumstances not the strength of the State's case but the evidence as a whole may shed some light on whether the third party guilt evidence is relevant. For example, if the uncontested evidence is the crime occurred on Tuesday, January 3rd, and the third party guilt evidence shows that the third party was in Acapulco on January 3rd and had no possibility to be there, that's not a strength issue. That is relevance. But when the touchstone for admissibility is whether the defense evidence overcomes the prosecution's case -- and in the South Carolina rule for -- just to be clear, it's not even considered that you consider the evidence of guilt. The defense evidence of third party guilt has to overcome the prosecution's forensic evidence.
04-1327 +++$+++ 16165 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose that everything in this case were the same. Everything is identical except what the court of appeals or the State supreme court holds is that we think under rule 403, which happens to be the rule in our State, the probative value doesn't warrant admissibility in light of the risk of prejudice. But everything else is the same.
04-1327 +++$+++ 16166 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the South Carolina --
04-1327 +++$+++ 16167 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, in your opinion is that constitutional?
04-1327 +++$+++ 16168 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Just to make sure I understand it, if the South Carolina Supreme Court in this case on these facts had said this was a 403.
04-1327 +++$+++ 16169 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1327 +++$+++ 16170 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I think that would be unconstitutional --
04-1327 +++$+++ 16171 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because?
04-1327 +++$+++ 16172 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- under this Court's decision in Olden v. Kentucky that this Court has recognized that evidentiary rulings, based on the strength of the evidence in this case, can be arbitrary and capricious and deprive a defendant of --
04-1327 +++$+++ 16173 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what they'll say --
04-1327 +++$+++ 16174 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- his right to defense.
04-1327 +++$+++ 16175 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- if they want to build it out, is they'll say, look, there -- there is DNA evidence here. It's absolutely conclusive, and all that the light -- the -- the only doubt of the -- the defense has cast on it is they found that there was some opportunity that the police could have tampered with it. That's true of 60 percent or so of all chain of custody cases, and that is not sufficient to overcome what it shows. And therefore, it's not worth the jury's time and it'll prove very confusing to the jury. Now, why would that ruling under 403 be unconstitutional?
04-1327 +++$+++ 16176 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that ruling in this case would be unconstitutional because it would be a mischaracterization of what Mr. Holmes' evidence was.
04-1327 +++$+++ 16177 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Good. Now, that's what I want you to get to.
04-1327 +++$+++ 16178 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Challenging the DNA evidence. That is not the -- the state of the evidence in this case, but --
04-1327 +++$+++ 16179 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the key points that suggest that what I just said is not a fair characterization or a correct characterization are?
04-1327 +++$+++ 16180 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That the evidence in this case -- that even the FBI agent who testified for the government admitted the DNA could have been placed through the incompetent handling of the evidence by Officer Mobley, that without gloves and with all the evidence in his possession, he inventoried the items, including Mr. Holmes' clothing and the victim's clothing, stuck his hands in the bag, determined what was in there without washing them or gloves, stuck his hand in another bag, determined what was in there. And even they admitted that due to the very small amount of DNA that was recovered, that Officer Mobley's actions could have been the source of the DNA on the clothing. In addition to that, there were a number of other suspicious activities, including Officer Mobley locked everyone else out before he inventoried, processed the scene. And then there were problems with contamination there. And then at the bottom -- at the end of the day, the defense presented a DNA expert, the only non-forensic scientist, but the most qualified scientist in the case from the New York University Medical School, and he said, look, this DNA doesn't mean anything. There are things that science cannot explain. There are dye globs here which should not be present. There's also a spike that does not belong to Mr. Holmes or --
04-1327 +++$+++ 16181 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Counsel, where -- where in the record is the testimony of the FBI agents that you were referring to?
04-1327 +++$+++ 16182 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's -- it's in the joint appendix. The -- the agent which admitted this was Agent Baechtel. I think it's actually in the joint appendix, page 249, but I'm not positive of that, and counsel will look for it. But there was also their defense expert who said that the bottom-line results were unreliable. So at the --
04-1327 +++$+++ 16183 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about -- what about the DNA -- the exclusion of the alleged perpetrator, of White? There -- there was no trace of White's DNA. And that was a FBI officer who testified to that.
04-1327 +++$+++ 16184 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Ginsburg. I don't find that surprising at all, given the facts of this case. It's, you know, seek and ye shall find, or don't seek and ye shall not find. In this case, they took none of Jimmy White's clothing to test to see if there was any incriminating DNA on that. They didn't take his shoes, even though they had the shoe print. This was not a case in which the DNA pointed to a single perpetrator. There were no vaginal swabs or rectal swabs which contained any information of any value whatsoever. And by the time they finally got around to doing the DNA testing in 1996, numerous items of clothing, including several items belonging to the victim, had disappeared and no one could explain where they had went. So the fact that they didn't find Jimmy White's DNA on Bobby Holmes' clothing I think is of no significance whatsoever. The main -- one of the main thrusts of the defense case here was because of the incompetence or the malfeasance of the police officers in this case, that the evidence against Holmes was unreliable.
04-1327 +++$+++ 16185 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Blume, I -- I know you're more concerned about -- about what result you get in this case and -- and whether your client gets another trial or not. I am more concerned about -- about the rule of law that we're going to apply in the case which will affect a whole lot of other trials, and I -- I frankly think we're playing with fire. I -- I worry about criminal trials turning into circuses in which -- in -- in which the police are put on trial, which is part of what is happening here and what has happened in -- in a famous recent American case. I worry that -- that that will be the -- the result if -- if we take your suggestion, which is to prescind from any consideration of the strength of the prosecution's case and simply look at the -- at the alleged third party guilt evidence on its own without -- without any consideration of its relative -- its relative strength. Just -- you want us to do it just absolutely.
04-1327 +++$+++ 16186 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would say, Justice Scalia, that that's the way the 49 other States do it. South Carolina is the only State which has a rule which requires a defendant to overcome the prosecution's case. And in South Carolina, not only do you have to overcome the prosecution's case, the only thing that counts is the prosecution's evidence. They completely dismiss --
04-1327 +++$+++ 16187 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where -- where do you think it says you have to overcome the prosecution's case?
04-1327 +++$+++ 16188 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the Holmes opinion.
04-1327 +++$+++ 16189 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's a -- it's a factor that's considered in weighing the admissibility and relevance of the third party guilt. They don't -- you don't have to prove and rebut and overcome, as you've said a couple of times, the prosecution's case.
04-1327 +++$+++ 16190 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the holding in Mr. Holmes' case is Holmes simply cannot overcome the forensic evidence against him.
04-1327 +++$+++ 16191 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. But with respect, I -- isn't the -- the term that they use -- and I was going to ask essentially the same question. The term that the court uses is raise a reasonable inference of his innocence. And I will -- I will grant you this. When I read that, it said -- I thought to myself it sounds as though they are saying he must present evidence or make a showing, a preliminary showing, that it is more probable than not that he is innocent despite the State's evidence. But they never spell that out, and is it spelled out anywhere?
04-1327 +++$+++ 16192 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there has not been a -- a decision since then. But I think if you read the sentence before that in the opinion where it says -- they describe the Gregory rule, which was the old rule, with which we have no quarrel. The rules are similar to that in other jurisdictions. It says, further, we held in State v. Gay that in cases where there is strong evidence of guilt, especially forensic evidence, evidence of third party guilt simply is not admissible.
04-1327 +++$+++ 16193 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you say you don't object to the -- the Gregory standard, and the Gregory standard is the one Justice Souter just quoted, raise a reasonable inference as to his own innocence. Now, how can you tell whether it raises a reasonable inference in a vacuum without regard to the evidence on the other side? If the evidence on the other side is -- I understand you dispute it in this case, but let's say unobjectionable DNA evidence that your client was the person there, and his third party guilt evidence is it wasn't me. How can you tell whether that creates a reasonable inference or not without looking at what's on the other side?
04-1327 +++$+++ 16194 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I think because, one, if you do that, you could supplant -- you -- you have made the judge the jury, and the defendant, in order to present evidence of his innocence, have to -- has to win a trial before the trial -- before the judge.
04-1327 +++$+++ 16195 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, not at all. What you're saying is that the evidence has to be -- the admissibility of evidence has to be assessed in light of the circumstances. If your claim of innocence is, as it may be in this case, that the DNA evidence doesn't show what you think it shows, fine, that evidence comes in. If the evidence you're trying to get in is somebody in the jailhouse said he heard that somebody else did it, and the -- and you don't challenge the DNA evidence that places your client there, then maybe that doesn't create a reasonable inference, while it might in a different case, depending on the nature of the prosecution's evidence.
04-1327 +++$+++ 16196 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- first of all, there is no other State that does it that way. No State considers that. They look at the third party guilt evidence on its own terms and consider does it raise a reasonable inference. And even in your hypothetical, the --
04-1327 +++$+++ 16197 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I'm -- I'm just not sure that's the case. We're asking about 403. In order to completely exclude and prescind, in Justice Scalia's word, that the -- the nature of the prosecution's case just doesn't seem to me right.
04-1327 +++$+++ 16198 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ 403 --
04-1327 +++$+++ 16199 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now -- now, if you want to say there's a more wooden rule and a -- and a more iron rule here that was prejudicial, I think that's something else.
04-1327 +++$+++ 16200 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There -- there is, and I think the South Carolina rule is a categorical rule based on the description. I think it also requires a defendant to overcome, and it does so in an unfair way. Footnote 8 in the opinion makes clear that in establishing whether the third party guilt evidence overcomes the State's evidence, you look only at the State's evidence, and the defendant's counter forensic evidence is deemed irrelevant. So you have to overcome it with a stacked deck.
04-1327 +++$+++ 16201 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But is it your argument that the State's evidence can't be considered at all, or that it can't be given more than a certain amount of weight? And if it's the latter, where do you draw the line?
04-1327 +++$+++ 16202 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that you cannot -- that as a general matter, a State cannot require a defendant to persuade a judge of his likely innocence before he can present evidence to the jury that he's innocent. That is -- that is putting the judge in the role of the jury, and that's what the South --
04-1327 +++$+++ 16203 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but the State doesn't go that far. If it doesn't require the defendant to persuade the judge of the defendant's likely innocence, then there's no constitutional violation. If the -- if the rule of State law simply requires a consideration of the strength of the prosecution evidence in relation to the defense evidence, that's -- that's all right?
04-1327 +++$+++ 16204 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it depends what consideration means. Consideration, for example, in terms of is the third party guilt evidence relevant in some way, that is not constitutionally objectionable. But when you have a weighing procedure like South Carolina does and the admissibility of the evidence of innocence depends on a judge's assessment of the credibility of the defendant's case and the prosecution's case, that is what juries do.
04-1327 +++$+++ 16205 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But where is the line? That's what I'm trying to get at. If it's -- if the rule is that the defendant has to raise a reasonable inference of innocence and you take into account the strength of a prosecution's case in making that determination, you don't just accept the defense evidence and -- and see whether -- how -- how strong an inference of innocence it would raise if it's believed. I mean, where is the line?
04-1327 +++$+++ 16206 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that would be -- because that is implicitly weighed. Your hypothetical to me is implicitly weighed, and I think that's --
04-1327 +++$+++ 16207 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And that would be unconstitutional as well.
04-1327 +++$+++ 16208 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's unconstitutional. All these cases where you indicate, well, you know, what if it's conclusively -- that the evidence is conclusive and the defendant didn't contest the DNA, should it be let in --
04-1327 +++$+++ 16209 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That makes it sound like it can't be considered at all.
04-1327 +++$+++ 16210 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- well, only for relevance and possibly for some 403's because that's looking at the 403 part. But in that --
04-1327 +++$+++ 16211 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What if the -- what if the court says, we will weigh it to the extent of determining whether, in light of the State's case, the proffered evidence, if accepted, would pass the laugh test? That's weighing. Is -- is that -- is that legitimate?
04-1327 +++$+++ 16212 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that that is problematic. And -- but the -- the point I think is no other State does it. Now, they would -- if it didn't pass the laugh test, it wouldn't pass the laugh test on its own terms. If you read the cases of exclusion, it's where the defendant wanted to present evidence that some dude named Duke that nobody can find had a motive to kill the person. And the courts say, well, no, you can't do that. Or the -- someone is on trial and they want to prove that the -- for killing a man's wife, and they want to show, well, the husband had $1 million in life insurance policy. And courts said, no, you can't do that. If all you've got is motive, if all you've got is propensity, if all you've got is opportunity, that's not in this -- they're -- in all the other 49 States, they're looking at it on their own terms. Nothing this Court will do in Mr. Holmes' case will disturb the law in the other 49 jurisdictions.
04-1327 +++$+++ 16213 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that does go -- somehow that goes beyond mere relevance. You can't say that the -- I don't think you can say that the existence of the million dollars in life insurance is irrelevant. It's just that it doesn't prove much unless it can be combined with certain other kinds of evidence. And when you say you've got a standard that looks into that, then you have crossed the line from mere relevance to probative force, haven't you?
04-1327 +++$+++ 16214 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but you're not considering how strong the government's case is and conditioning admissibility --
04-1327 +++$+++ 16215 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. I -- I grant you that. But to say that the only test is relevance seems to be too strong.
04-1327 +++$+++ 16216 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry. I -- I didn't mean to suggest that. I was sort of just describing how other States do it and the relevance. Then they also -- many of them have -- they articulate it different ways, but it's basically relevance with a 403 type of exclusion, that if the evidence doesn't meet the third party guilt evidence on its own terms, doesn't meet a certain quantum, back -- doesn't get over the laugh test, then it's not admissible. Other States do it and they say, well, it's got to create a reasonable inference of innocence. That's fine. Or it must create a reasonable likelihood about the defendant's guilt. That's fine too.
04-1327 +++$+++ 16217 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You think -- you think there's no difference where really very questionable evidence about some third party's guilt is -- is produced in a case where -- where the State's case barely makes it over the -- over the line to get to the jury and you think it's -- it's the same call where that barely questionable third party evidence is -- is put in in opposition to a State's case that is -- is watertight -- I mean, you know, forensic evidence, all sorts of proof. You -- you think the two have to be treated the same.
04-1327 +++$+++ 16218 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, well, I do for the following reason. The -- that case may make it an easy call, but it's still the jury's call, just for the same reason that a judge couldn't, in a very strong case like that, say, I'm not allowing the defendant's alibi witnesses to testify.
04-1327 +++$+++ 16219 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that's the -- that's the problem. That's why this is a special category of evidence. It's not any evidence. It's third party guilt evidence because that's evidence that any defendant could try to introduce in any case. In any case, the defendant can say somebody else did it and compile whatever kind of evidence he can get, whether it's jailhouse informants or -- or whatever, where the person who did it was often somebody who's just recently died and -- and is not there to present an alibi of his own. In every case the defendant can come up with this evidence, and so you have a special rule that's designed to deal with that. And all, it seems to me, that the State court decision is saying, when you look at the prosecution's case, is if -- if the prosecution's case makes that an -- unreasonable under the Gregory test that you agree with, the reasonable inference, if it's unreasonable to suggest that somebody else did it, doesn't mean that you're guilty. You may have all sorts of other claims that you can make, but you just don't get to present that type of evidence because of the susceptibility of prejudice and the susceptibility of fraud and all that kind of stuff.
04-1327 +++$+++ 16220 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Chief Justice Roberts, I submit that that is, one, not correct factually. I mean, I think if anything, it's more like --
04-1327 +++$+++ 16221 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You mean on -- in your case.
04-1327 +++$+++ 16222 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's not -- it's certainly not true on the facts of this case. But even as a general proposition, I think defendants are more likely to get alibi witnesses to lie for them than other people. But we still allow the jury, the ultimate lie detector, to make that decision. And if you read the hundreds of criminal appeals that come out each year, this is not a big problem. It doesn't come up a lot, and the law in the 49 other jurisdictions seems to handle it. South Carolina is the State --
04-1327 +++$+++ 16223 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does the other side agree with that? I -- I'd be surprised if that were the law in the other 49 jurisdictions, that the judges just blind themselves to the -- to the prosecution's case when they make these calls.
04-1327 +++$+++ 16224 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think --
04-1327 +++$+++ 16225 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's your authority for -- for the -- for opposition that every other jurisdiction does it that way?
04-1327 +++$+++ 16226 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think if you go through the cases, even in the amicus brief, filed by the State of Kansas, they were able to come up with two decisions: one, an unreported decision from the D.C. Circuit; and the other, an intermediate decision by the California Court of Appeal, which took into account the strength of the State's case. If you read all the other cases from all the other States or you read the articulation of the rules, it doesn't do that. So a judgment in Mr. Holmes' favor will leave the law of those States intact. But even if --
04-1327 +++$+++ 16227 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I -- I guess my -- my point -- maybe it's some of my colleagues' point -- is that really the strength of the government's case is subsumed within the general calculus of whether or not this would cause a delay of -- of time, whether it would get into extraneous issues, et cetera.
04-1327 +++$+++ 16228 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's -- it's not --
04-1327 +++$+++ 16229 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's a way of phrasing it.
04-1327 +++$+++ 16230 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's not the way the decisions, if you read them and read the evidence, that they work. But it's -- I mean, it -- it does -- if the judge weighs and conditions the admissibility of evidence of innocence on the ability to overcome -- and that's the South Carolina rule, overcome the prosecution's case and overcome it with a stacked deck where any of the defendant's counter-evidence is irrelevant, it's impossible. A defendant could never overcome it.
04-1327 +++$+++ 16231 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We're not arguing about that. I -- I don't think anybody has asked you that question. The question is whether you can consider it at all, and -- and you say no.
04-1327 +++$+++ 16232 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you don't have to -- you can't consider it the way South Carolina is. But I think it would have the -- the place -- the strength of the government's case has some bearing. Or the government's case may have some bearing -- not the strength of it -- on whether the third party guilt evidence is relevant to some, you know, issue in the trial. But it also would have some significance on the back end if a judge excluded it in determining whether any error was harmless or not. And that's traditionally the place on appeal where you consider the strength of the government's case. There's no other category of evidence in our system where we take into account the overall strength of the case to admit it. If that were true, then why don't we allow judges to direct verdicts? Why don't we allow judges to exclude defendant's testimony? Look, the government's evidence is strong. The DNA evidence here is overwhelming. Anything this defendant says, when he gets up there, is going to be a lie. I'm not allowing it. We don't do that. Juries in our system make credibility determinations and that's what the rule, which requires you to -- where you have to weigh the defendant's evidence against the government's evidence, usurps the function of the jury. Finally, in this case the -- there is a contention that the error was harmless, and I wanted to briefly respond to that. Now -- and then if the Court has no further questions, I will save the remainder of -- of my time for rebuttal. But there are three principal reasons the error in this case was harmless. First -- and part of this I've already discussed with Justice --
04-1327 +++$+++ 16233 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Not -- not harmless you mean.
04-1327 +++$+++ 16234 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry. Was not harmless. And the first one I've discussed with Justice Breyer in response to your questions previously, that I think any fair review of the record here is that the forensic evidence was a jump ball. Now -- and while we do not contest that the evidence was sufficient to convict, it certainly was not overwhelming and a reasonable juror could have entertained a reasonable doubt as to Mr. Holmes' guilt based solely on the evidence at trial.
04-1327 +++$+++ 16235 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there wasn't much evidence against him other than the forensic evidence. Isn't that right? There's just some people who saw him nearby.
04-1327 +++$+++ 16236 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There wasn't even -- yes, there was some evidence that he was within a mile --
04-1327 +++$+++ 16237 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
04-1327 +++$+++ 16238 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- or so at the time. There was much stronger evidence that Mr. White was in the area where the crime occurred, near where the crime occurred.
04-1327 +++$+++ 16239 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So the jury must have found that forensic evidence to be very convincing.
04-1327 +++$+++ 16240 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they found him guilty based on it, yes. But, of course, that can't be the touchstone of whether the error was prejudicial. The State has the burden of demonstrating beyond a reasonable doubt that the exclusion of the third party guilt evidence could not have contributed to the verdict. In this case, the forensic evidence was, I submit, a jump ball. The defense had --
04-1327 +++$+++ 16241 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What do you say in -- you cited us to footnote 8 in the court's opinion, and it says that your claims do not eliminate the fact that 99.99 percent of the population, other than your client and the victim, were excluded as contributors to the DNA evidence that was found. Do you -- is -- is the court wrong in saying that?
04-1327 +++$+++ 16242 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The court is right, to the extent that it is citing one expert's opinion. It is wrong in that it ignores that even that agent admitted that the DNA could have been produced through the contamination of Officer Mobley, through his -- through the bags. So that could explain the results. And it also ignores the fact -- the footnote does -- that a defense expert, Dr. Peter D'Eustachio said that that's not a fair and accurate representation. In my opinion, in my expert opinion, there -- you cannot do any DNA calculations on this. These charts are completely unreliable. So that's all it is, and it's -- it has, I think, no significance here in light of the evidence as a whole. It's a factually inaccurate statement of the record as a whole. But in addition to the evidence, the most -- a very significant factor in determining whether this error was harmless or not is having succeeded in convincing the trial judge to exclude the evidence, the prosecutor in his closing argument said, look, they've indicated that this evidence was planted. They've indicated this evidence was contaminated. If Bobby Holmes didn't do it, who is -- where is the raping, murdering thing that did? So he took complete and unfair advantage of the absence of evidence in the trial court's ruling in securing the conviction here. And this Court has said on a number of other occasions, in Satterwhite and Clemons, that a prosecutor's argument is an important factor in determining whether an error was harmless. And finally --
04-1327 +++$+++ 16243 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's a question on which we didn't grant cert.
04-1327 +++$+++ 16244 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You did not. I mean, we do believe it was an independent constitutional error, but even apart from that, it's still a factor in gauging harmlessness. This Court has said that on a number of occasions, that what is in the argument is a factor in harmless error. And then finally, excluding -- not allowing the evidence deprived Mr. Holmes of presenting an alternative counter-theory. You can see a jury saying, well, you know, we've heard all this. This is a bunch of contesting evidence, but almost asking the questions the prosecutor did, which certainly they would have asked after it was, well, you're right. We didn't hear any evidence of that. Bobby Holmes had a powerful counter-story. He should have been allowed to tell it. The South Carolina rule is unconstitutional. The judgment should be reversed.
04-1327 +++$+++ 16245 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Blume. Mr. Zelenka.
04-1327 +++$+++ 16247 +++$+++ FALSE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The Constitution guarantees criminal defendants under the Due Process Clause, Compulsory Process, and Confrontation Clauses a meaningful opportunity to present a defense. A defendant's right to present relevant evidence is not unlimited, however, but is rather subject to reasonable restrictions. State courts as rulemakers have broad latitude to establish rules excluding evidence so long as they are not arbitrary or disproportionate.
04-1327 +++$+++ 16248 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Zelenka, do you -- do you agree with the characterization that your brother has given, largely by way of quotation from the opinion in this case, that the rule of admissibility that -- that the -- that the court followed in -- or that the supreme court approved in this case would have required the defendant to show to a degree of probability, in light of all the evidence, including the forensic evidence, that he was innocent as a condition of -- of admitting the evidence?
04-1327 +++$+++ 16249 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I do not. I think it was merely an application of the original opinion that relied upon the straight -- State v. Gregory, that in fact it must raise a reasonable inference as to the defendant's innocence.
04-1327 +++$+++ 16250 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, well, what do you -- I mean, your -- your brother's strongest point is this statement, and I'm quoting from page 365 of the joint appendix where the -- where the opinion is set out, at -- at the top of the page, the second sentence. He simply cannot overcome the forensic evidence against him to raise a reasonable inference of his own innocence. What could that mean other than a probability that he is innocent in light of all the evidence, including the forensic evidence?
04-1327 +++$+++ 16251 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that -- that language was basically a review determination as to what exactly happened. I don't think that the court --
04-1327 +++$+++ 16252 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but what does it mean? I mean, I've given you a suggestion as to what it seems to mean on a straightforward reading, and -- and I take it you disagree with that. But can you explain how it could mean something else?
04-1327 +++$+++ 16253 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't disagree with the fact that, in fact, that is what the supreme court said in its analysis, looking at the particular evidence in this case, that he was unable to overcome that. But I think State v. Gregory didn't require that to be the ultimate threshold that it had to meet, rather that it raise a reasonable inference as to his innocence.
04-1327 +++$+++ 16254 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's -- it's true. When they -- on the -- on the previous page, the bottom of 364, they -- they cite -- they first quote Gregory and then they cite Gay and they characterize, I guess, the two together as -- well, they say, in Gay, we held that where there is strong evidence of an appellant's guilt, especially where there is strong forensic evidence, the proffered evidence about a third party's guilt does not raise a reasonable inference as to the appellant's own innocence. It doesn't use the word overcome which it uses on the other page.
04-1327 +++$+++ 16255 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it doesn't.
04-1327 +++$+++ 16256 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But even without the word overcome, what -- what can reasonable inference of innocence mean, considered in light of the other evidence in the case, if it doesn't mean something like a probability of -- of innocence?
04-1327 +++$+++ 16257 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's raising a possibility. I don't know what level of possibility it is other than a reasonable inference level, which is a level which -- which means that it's subject to some belief.
04-1327 +++$+++ 16258 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But quite apart from that, it seems to me that the statement is questionable as an empirical matter. Why is it that forensic evidence somehow should be used to exclude third party guilt evidence as -- as a universal proposition? Maybe in some cases yes, maybe in some -- but this is a universal proposition.
04-1327 +++$+++ 16259 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It reads certainly like a universal proposition, but I think it is merely an application of what happened in State v. Gregory and State v. Gay when they were presented at that time in those situations with what they determined to be strong evidence of forensic guilt --
04-1327 +++$+++ 16260 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if I were the trial court, in a subsequent case in South Carolina, I would -- I would have to read this instruction of the South Carolina Supreme Court as saying I simply could not admit this evidence when there's forensic evidence. And that's a very strange proposition.
04-1327 +++$+++ 16261 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would agree that would be a strange proposition because it suggests that they would ignore the merits of -- of the proffered evidence itself. And I don't think that's what happened in this case, and I don't think that's what the South Carolina Supreme Court --
04-1327 +++$+++ 16262 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your point is that we're quibbling with the language. Certainly the language can't be right. I mean, Gregory is quoting America -- Am.Jur. It's totally right. And I don't -- in my opinion. I don't see how there's a problem. It's simply a way to prevent the defendant from confusing the jury with evidence that's not -- doesn't have high probative value. That's -- so we --
04-1327 +++$+++ 16263 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's correct.
04-1327 +++$+++ 16264 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They don't agree with that necessarily, but I'm taking that as a premise.
04-1327 +++$+++ 16265 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's --
04-1327 +++$+++ 16266 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, he describes this, the writer of the opinion, and if I hadn't been guilty of this sin myself, I couldn't criticize others, but he uses language that's absolute. He says, where there is strong evidence of an appellant's guilt, especially where there's strong forensic evidence, the proffered evidence about a third party's alleged guilt does not raise a reasonable inference as to the appellant's own innocence. I took that to mean doesn't tend to show that the appellant is innocent. And you do have to have when faced with guilt. It's not relevant if it doesn't tend to show he's innocent. So that wasn't the problem. The problem is that this sentence is wrong. You could have incredibly strong evidence that this person is guilty and it could be incredibly strong evidence that the other person did it.
04-1327 +++$+++ 16267 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely.
04-1327 +++$+++ 16268 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so it should come right in. So what should have been there is the word automatically, but the word doesn't automatically show, but the word isn't there. It doesn't say automatic.
04-1327 +++$+++ 16269 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It doesn't --
04-1327 +++$+++ 16270 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And he goes on to write as if it isn't that automatic. And he then favors you because he says the standards set out in Gregory and Gay, as if they aren't different.
04-1327 +++$+++ 16271 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-1327 +++$+++ 16272 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the language says they are different. So what do we do?
04-1327 +++$+++ 16273 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I think we also have to remember that the -- the South Carolina Supreme Court was viewing this simply as a matter of State common law. They weren't looking at it as a matter of Federal constitutional law.
04-1327 +++$+++ 16274 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so what do we do? We get the -- we read the opinion literally, and moreover, that's why I asked it. If you look into the evidence, it looks -- you know, maybe it's closer than you might think. And if we start looking at the evidence of every case in the United States, it's going to be a problem for everybody. But -- but -- so what do we do? That's my question.
04-1327 +++$+++ 16275 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think we can look at a much narrower approach that also evolves out of this particular judgment as determined by the trial court. There was essentially a -- a lack of persuasive assurances of trustworthiness in the statements that were, in fact, given. They lacked corroboration, the particular statements that were alleged to have been given by Jimmy McCaw White, in ways similar to situations where evidence should not be deemed relevantly admissible because of that lack of reliability and trustworthiness.
04-1327 +++$+++ 16276 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's not what the court said, though. The court didn't -- did -- whatever the court said, it clearly did not say just looking at the third party guilt evidence by itself, it's not -- it's not trustworthy. Whatever else it said, it didn't say that.
04-1327 +++$+++ 16277 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it didn't say that.
04-1327 +++$+++ 16278 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Yes. Now, you say that's true. Now, it may well have been true, but that -- we're -- we're --
04-1327 +++$+++ 16279 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The trial judge said that. The trial judge said it lacked the type of corroboration.
04-1327 +++$+++ 16280 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's right.
04-1327 +++$+++ 16281 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the trial judge also kept it out, didn't he, because he believed there was -- there was no penal interest exception to the hearsay rule?
04-1327 +++$+++ 16282 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He was -- he -- he did that also, but ultimately he blended both concepts together and said both as a matter of substantive law and as a matter of evidentiary law in the -- the final conclusion at the end of the State's case, when he made the ultimate determination --
04-1327 +++$+++ 16283 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but then you get to the --
04-1327 +++$+++ 16284 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that it would be inadmissible.
04-1327 +++$+++ 16285 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm sorry. Then you get to the -- the South Carolina Supreme Court, and they don't keep it out on -- on grounds of -- of threshold reliability.
04-1327 +++$+++ 16286 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They didn't specifically address that. They went to their ultimate determination viewing the evidence.
04-1327 +++$+++ 16287 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And as I recall, the trial court did say that this was pretty persuasive evidence but for the fact that you had to exclude some of it because that there was no exception to the hearsay rule. Didn't he say that?
04-1327 +++$+++ 16288 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- they said that the evidence existed, that the statements --
04-1327 +++$+++ 16289 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He said more than that. I think he said it was --
04-1327 +++$+++ 16290 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- there was some evidence --
04-1327 +++$+++ 16291 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
04-1327 +++$+++ 16292 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that allowed for --
04-1327 +++$+++ 16293 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your friend will tell us what he said.
04-1327 +++$+++ 16294 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that allowed for a jury to make the determination. That information was there. But also, it's -- the judge found that there wasn't other evidence other than the statement that clearly pointed to the defendant -- excuse me -- that clearly pointed -- pointed to Jimmy McCaw White --
04-1327 +++$+++ 16295 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you this question?
04-1327 +++$+++ 16296 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- as being guilty of the crime.
04-1327 +++$+++ 16297 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Supposing -- I've written a fair number of opinions involving criminal cases where I've had to say that we take all the inferences favorable to the prosecution, and based on that rule, we find there's sufficient evidence to justify the jury's verdict. How we would have decided it is not before us. We accept the jury's verdict. What if the -- on the merits of the underlying crimes, the South Carolina Supreme Court had written that kind of an opinion rather than there's overwhelming evidence of guilt? Do you think they would have held the third party evidence admissible or inadmissible?
04-1327 +++$+++ 16298 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think they would have still held the third party evidence inadmissible because of the lack of corroboration. It lacked that requirement of reliability to get over --
04-1327 +++$+++ 16299 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's odd that they didn't say that. Their -- the reasons they gave were that the evidence of guilt was overwhelming.
04-1327 +++$+++ 16300 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And they gave that immediately after they had issued their prior opinion in -- in State v. Gay where they looked at a case where, again, they found overwhelming forensic evidence of guilt as defeating the probative value of the defendant's presentation. And trial counsel --
04-1327 +++$+++ 16301 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Zelenka, do you agree that all 49 other States do not look at the -- at the weight of the prosecution's case when making this decision?
04-1327 +++$+++ 16302 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I -- I do not agree with that. And -- and we've cited in our brief Kansas v. Adams. We -- we do not analyze those cases to make a determination as to what the trial judges and the other State courts did not look at. We think it's implicit, in fact, in most situations, that you have to consider to some extent the State's evidence to determine the reliability of the nature of the third party guilt evidence which comes in. You have to have --
04-1327 +++$+++ 16303 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could you use --
04-1327 +++$+++ 16304 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- some understanding of that evidence.
04-1327 +++$+++ 16305 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could -- could you use the same rule with respect to alibi evidence? The trial judge would say this evidence for the prosecution is so strong, I'm not going to let any alibi evidence in. Is there -- is there anything special about third party guilt? Couldn't -- couldn't you use -- use it for other defenses?
04-1327 +++$+++ 16306 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think there is something special about third party guilt. Alibi is merely the defendant saying I didn't do it and I wasn't there when the crime was done. I think in third party guilt evidence you're diverting the case off in another direction that requires some special attention by the courts, and I think most States recognize it requires special attention by the court because it's hitting on a collateral issue requiring the State to prove or, to some extent, disprove that another individual did it, an individual that might not be subject to notice requirements, an individual that might not even be alive. We look at -- you can look at the -- this Court's decision in Donnelly v. the United States, a 1911 decision, that recognized there's something different about third party guilt potential evidence because of the inherent unreliability which may exist in the manner and the way it was presented.
04-1327 +++$+++ 16307 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can -- can a trial judge exclude defense evidence based on credibility determinations?
04-1327 +++$+++ 16308 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I don't -- I don't think they can.
04-1327 +++$+++ 16309 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't that -- but isn't that what happened here?
04-1327 +++$+++ 16310 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I think -- I think this court excluded it on the basis of reliability determinations, whether in fact there was sufficient corroboration for what the individual was saying in the statement. The trial judge found that the information that was purported to be said by Jimmy McCaw White was something that was generally known within the community as a whole.
04-1327 +++$+++ 16311 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How could -- how could court conclude that the State's evidence was strong without making -- without finding, in effect, that the State's forensic witnesses were credible?
04-1327 +++$+++ 16312 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think they could evaluate the evidence in the manner that it -- that it was presented to them to get an indicia as to whether there is any reasonable reliability to the third party guilt evidence.
04-1327 +++$+++ 16313 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Just take, for example, the -- the palm print. The chief Mobley said he found it in -- in the apartment, and that would be very strong evidence, if in fact that was the case. But his credibility was contested. So how can you conclude that the palm print is strong evidence for the prosecution without implicitly making a determination, a credibility determination?
04-1327 +++$+++ 16314 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that type of evaluation, we believe, necessarily needs to be done to make a determination to the -- to the probative value or the prejudicial value to the presentation of the third party guilt evidence of -- of the defendant, that all those matters need to be looked at as to whether, in fact, it should come in.
04-1327 +++$+++ 16315 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But then the court is making --
04-1327 +++$+++ 16316 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If there was just the palm print --
04-1327 +++$+++ 16317 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the court is excluding defense evidence based on a finding that a prosecution witness is credible.
04-1327 +++$+++ 16318 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I don't think that's the test, and I don't think that's what they were doing in this case. They were making that -- viewing that information to determine whether the presentation was reliable that was being presented, whether there was some substance actually to what was being given, and whether leaving that information out would have deprived him of a meaningful right to present relevant evidence in his defense.
04-1327 +++$+++ 16319 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On the other side, if Westbrook was credible, isn't that strong evidence for the defense?
04-1327 +++$+++ 16320 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the -- it's -- it's evidence for the defense, but it's evidence for the defense that lacked the sense of reliability. And it lacked --
04-1327 +++$+++ 16321 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if he's credible that White confessed to him --
04-1327 +++$+++ 16322 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He -- he --
04-1327 +++$+++ 16323 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- then wouldn't that be strong evidence for the defense?
04-1327 +++$+++ 16324 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's some evidence for the defense, but the problem is it lacked corroboration. It wasn't given in a timely manner. If you contrast that to the situation which occurred in Chambers v. Mississippi, there was an entire information that the Chambers situation had independent of the third party statement which supported and showed that that information did have persuasive assurances of reliability. That was lacking in this particular case. I see my time is about up, but I would --
04-1327 +++$+++ 16325 +++$+++ TRUE +++$+++ JUSTICE THOMAS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, before you change subjects, isn't it more accurate that the trial court actually found that the evidence met the Gregory standard?
04-1327 +++$+++ 16326 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. He specifically found, I believe, from my reading --
04-1327 +++$+++ 16327 +++$+++ TRUE +++$+++ JUSTICE THOMAS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, he says --
04-1327 +++$+++ 16328 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that it didn't meet the Gregory standard.
04-1327 +++$+++ 16329 +++$+++ TRUE +++$+++ JUSTICE THOMAS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, he says at first blush, the above arguably rises to the Gregory standard. However, the engine that drives the train in this Gregory analysis is the confession by Jimmy McCaw White. And then he goes on to say that that, of course, can't be introduced because it's hearsay. So it -- it seems as though he says that if it is to be believed what Jimmy White says, it meets the Gregory standard. So I don't quite understand where Gay, which is subsequent to -- to this case -- where Gay comes in because it didn't seem to be the standard that the trial court applied.
04-1327 +++$+++ 16330 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Actually Gay was -- two things. Gay was not the standard when the trial judge made the pretrial hearing. Gay was -- was the standard at the time the case was tried, and the trial judge was addressing that standard and he found that Gay was not satisfied because he didn't believe that there was evidence which clearly pointed to the defendant -- excuse me -- to the third party as being guilty of the particular crime. He made that --
04-1327 +++$+++ 16331 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Excluding the confession. Excluding the confession.
04-1327 +++$+++ 16332 +++$+++ TRUE +++$+++ MR. ZELENKA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Other than that information in the confession, which he had also found previously lacked appropriate corroboration at the trial -- pretrial hearing as evidenced within his written order. I would also like to preserve the ability to argue harmless error, as we've done in our case to some extent. The South Carolina Supreme Court's opinion was a harmless error analysis, but more importantly, in addition, that -- that we do not believe and continue to assert that the matter wasn't properly preserved before this Court based upon the manner and only the manner that it was raised before the South Carolina Supreme Court in the direct appeal briefs.
04-1327 +++$+++ 16333 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Zelenka. Mr. Johnson.
04-1327 +++$+++ 16335 +++$+++ FALSE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: In my time today, I'd like to focus on two basic issues. The first is that this case does not approach the outer limit of due process set by this Court in Chambers. As the trial court found in three specific instances, there is no evidence to corroborate these confessions. And the confession evidence itself in Chambers was far stronger than the confession evidence in this case. Second, I'd like to respond to Justice Breyer's question about the nature of the Supreme Court of Carolina's opinion and to remind the Court that it's reviewing the judgment primarily, not the opinion. And it seems to me that Petitioner's argument is essentially criticizing the opinion for the absence of a word, the absence of the word automatically, and that the opinion would look very different if it said where there's strong evidence of guilt, the defendant's third party guilt evidence doesn't automatically raise a reasonable inference of innocence.
04-1327 +++$+++ 16336 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. And I -- I take it what you will do, in the course of your second point, is tell us the answer to this question, that if we do not accept the overcome by reasonable inference formulation that is here, what would be an acceptable formulation because I think that's what you -- you say you're getting to. But that would be very helpful to us.
04-1327 +++$+++ 16337 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We -- we believe that the raise a reasonable inference of innocence standard, as the counsel for South Carolina said, does not necessarily require that it be the only inference --
04-1327 +++$+++ 16338 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, one of the problems is I don't know what it requires. On -- on the -- on the second page of the opinion that I quoted, it is used with the word overcome, which certainly suggests that it is supposed to raise a probability of innocence in light of all the evidence. Sometimes it is used without overcome, as it was earlier in the opinion. I don't know what they mean by inference. Do they mean evidence from which one might reasonably conclude, from which one -- there is a reasonable possibility of concluding? I just don't know what the terms mean. So I hope you'll give us a suggested formulation with -- with terms that -- that are defined that -- that you and the States that you represent would -- would think was an acceptable and constitutional standard.
04-1327 +++$+++ 16339 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I think your formulation is actually a fair one. Does it raise some --
04-1327 +++$+++ 16340 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I included several. Which -- which one --
04-1327 +++$+++ 16341 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The second one, does it raise some reasonable possibility of innocence. In other words, if you believe this evidence --
04-1327 +++$+++ 16342 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-1327 +++$+++ 16343 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- does it raise a reasonable possibility of innocence, not -- not that it's the most likely or the only possibility from that evidence. And I think if you look at the South Carolina Supreme Court's opinion carefully, in light of the -- the supreme court's decisions in Gregory and Gay, you see that in fact what the court was doing was simply saying this case is like Gay. There's strong evidence. We're going to look at the evidence on both sides. And there's a -- there is certainly language in the opinion that makes it sound like an automatic or categorical rule, but in fact, they did go on to look at the defendant's evidence.
04-1327 +++$+++ 16344 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Has anybody else looked at the evidence on both sides?
04-1327 +++$+++ 16345 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The trial court certainly looked at the defendant's evidence.
04-1327 +++$+++ 16346 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Other States I mean. Other States.
04-1327 +++$+++ 16347 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. I think that it would be fair to say that -- that any of the nine States collected in our appendix whose standard is does the evidence raise a reasonable inference of innocence look at those sorts of questions. In addition, we collected, I believe, four cases in our brief, in addition to the California Court of Appeal and the D.C. Circuit's opinion in Cabrera. There's the Kansas v. Adams case which very clearly looks at the State evidence. In that case, the issue was the defendant was on trial for shaking his baby to death, and the medical evidence of the prosecution showed that the death took place within a certain time period. The defendant wanted to introduce evidence that his wife --
04-1327 +++$+++ 16348 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can we -- can we just back up to Cabrera? The D.C. Circuit did not publish that and --
04-1327 +++$+++ 16349 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
04-1327 +++$+++ 16350 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and unless the rule has changed, it didn't have -- it didn't have any precedential effect -- those opinions that they did not put in the Federal Reports.
04-1327 +++$+++ 16351 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think its reasoning stands on its own, Your Honor. But in addition to that case, you have these other three published cases, and we stand by the description of them in our argument. Kansas v. Adams was a case where the court said the issue -- the State's evidence shows this baby died within a certain time period, and although the wife had a history of violence against the child, the court said it's not getting in because it's -- there's no evidence that she had access to the child during the relevant time period. That's a very clear example. There are other examples.
04-1327 +++$+++ 16352 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose there had been evidence that the time of death testimony had been contrived, planted, fabricated. Then what? Or suppose that was the allegation of the defense.
04-1327 +++$+++ 16353 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think it would be within the -- the trial court's discretion to exclude it. I certainly don't think it would necessarily violate the due process --
04-1327 +++$+++ 16354 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if he did, he would be making a credibility determination, wouldn't he? He would be deciding an issue that normally would be submitted to the jury.
04-1327 +++$+++ 16355 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not our position, Your Honor, that -- that the trial court can make credibility determinations, but --
04-1327 +++$+++ 16356 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the example that Justice Kennedy gave you was such a determination.
04-1327 +++$+++ 16357 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think, though -- I -- I suppose that would depend on the nature of the specific evidence at issue. If you look at the evidence --
04-1327 +++$+++ 16358 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why wasn't it in the baby-shaking case?
04-1327 +++$+++ 16359 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry?
04-1327 +++$+++ 16360 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why was there no credibility determination made in the baby-shaking case you just described? Didn't -- didn't you have to conclude that the evidence concerning the time of death was -- was credible, was accurate?
04-1327 +++$+++ 16361 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think, Your Honor, that the trial judge found that -- that there simply wasn't a dispute about that, that -- that the -- that there wasn't enough. And so it was fine to look at the State's case. And I would urge the Court --
04-1327 +++$+++ 16362 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there is a dispute here as to the forensic evidence. The suggestion is it's planted.
04-1327 +++$+++ 16363 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor, and -- and we would -- we would simply urge the Court not to adopt a categorical rule that it's inappropriate to look at the State's case.
04-1327 +++$+++ 16364 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do I do in this case? I'm totally with you if I read American Jurisprudence and others as saying the following. Judge, there's a particular kind of evidence that really has a tendency to mislead the jury, that's that somebody else did it because they start trying the other person in their minds. So if you have a strong case that this guy did it, don't let them even introduce that evidence unless you have some reason to think it's really going to show this guy didn't do it. That's what it's saying, isn't it?
04-1327 +++$+++ 16365 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, and -- and --
04-1327 +++$+++ 16366 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Now, that gets us through Gregory. And the difficulty here is that the court went on to say something that couldn't possibly be true, which is if you have a strong case against this guy, never admit this other thing. That couldn't be right.
04-1327 +++$+++ 16367 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that's why --
04-1327 +++$+++ 16368 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so now what do I do with that particularly? Because the other side has said, by the way, this is that case.
04-1327 +++$+++ 16369 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that's why I would emphasize the trial court's findings in this case.
04-1327 +++$+++ 16370 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The trial court's findings -- I read them the way Justice Thomas did.
04-1327 +++$+++ 16371 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's very clear. This is at pages 136 and 137 of the joint appendix, page 140 of the joint appendix, and again at pages 252 and 253 of the joint appendix. The trial court said there is nothing to corroborate these confessions. Now, contrast Chambers --
04-1327 +++$+++ 16372 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On that, could a prosecutor have gotten this case -- gotten an indictment against White on the basis that he had four witnesses who put him in the proximity of the crime, four who said that they heard him confess? On the basis of that evidence, could White have been indicted for this?
04-1327 +++$+++ 16373 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Possibly --
04-1327 +++$+++ 16374 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and also throw in one more thing, the victim's description of the assailant. So if -- if White could have been indicted for this crime and -- and yet the jury is not allowed to hear that evidence, that sounds passing strange to me.
04-1327 +++$+++ 16375 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Possibly that evidence would be sufficient to support an indictment, Your Honor, but I don't believe it would be sufficient to support a conviction. And I also think that it's -- it's -- we're talking about the outer limits of due process here. If you look at the evidence in Chambers, the corroboration evidence there was extensive. There was a witness who said I saw the third party shoot the victim.
04-1327 +++$+++ 16376 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Surely, you're not arguing the third party evidence can only come in if it's proof beyond a reasonable doubt. You're not arguing that standard, are you?
04-1327 +++$+++ 16377 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. No.
04-1327 +++$+++ 16378 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you did say it wouldn't be enough to convict.
04-1327 +++$+++ 16379 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, Your Honor, and -- and that -- that might present a different case.
04-1327 +++$+++ 16380 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't --
04-1327 +++$+++ 16381 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but that evidence --
04-1327 +++$+++ 16382 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You said it was enough to indict and that very same evidence is put before the jury, but it wouldn't be enough to convict?
04-1327 +++$+++ 16383 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm saying, Your Honor, that the evidence here clearly isn't strong enough to meet the standard for due process, quite apart from whether it's enough to support an indictment or a conviction. And if you compare it with the evidence in Chambers, that's very clear where there was eyewitness testimony of the shooting itself. There was eyewitness testimony that the third party was at the scene of the crime with the gun in his hand. There was -- there was testimony from the gun dealer that he sold the person the type of crime at issue -- the type of gun at issue both before and after the offense. The confession itself, in contrast to the evidence here, was a sworn statement. There was not even any dispute as to whether the -- the confession was made. The only dispute was whether the evidence of the confession was true.
04-1327 +++$+++ 16384 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Johnson, your -- your citation of the -- of the portion of the -- of the trial court opinion, which says that there was no corroboration of the -- of the confession, that was not stated in -- to say, and therefore, the confessions were weak evidence. That point was made in order to say, therefore, the confession cannot be admitted because the -- the rule was it's hearsay, but hearsay that's corroborated can be admitted. So I think you're misdescribing the --
04-1327 +++$+++ 16385 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I -- if I may answer.
04-1327 +++$+++ 16386 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Please.
04-1327 +++$+++ 16387 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand that, Your Honor. It was part of the hearsay analysis, but it's a narrower ground that's -- that's fully supportable by the record for affirmance because it distinguishes the evidence in Chambers.
04-1327 +++$+++ 16388 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Johnson. Mr. Blume, you have 2 minutes remaining.
04-1327 +++$+++ 16390 +++$+++ FALSE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ May it please the Court: The trial judge in this case found, if you want to go -- he found there was sufficient evidence from which the jury could find that Jimmy White was in the area at the time. The trial judge -- that's on joint appendix page 134. On 135, he also found there was sufficient evidence from which a jury could believe that Jimmy White confessed to being the perpetrator, and there was sufficient evidence from which a jury could conclude that Jimmy White had in the past committed acts against women. And then he made the mistake of fact and a mistake of law. He treated White as unavailable and therefore he excluded the statement made. That was wrong. White was available. Under South Carolina law, he should have been able to have been called. He could have been impeached, and the prior -- these statements would come in as substantive evidence. It was also wrong, even as the statement gets penal interest. The only corroboration is was the statement made, not is it true. That's the -- and in that case, he found the statements were made. And that's why the State supreme court did not embrace or rely upon what the trial court did because it was clearly wrong.
04-1327 +++$+++ 16391 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does your -- your case hinge upon your challenge to the DNA evidence? In other words, if you don't have the suggestion that the DNA evidence was manipulated, would you agree that in that case the third party guilt evidence could be kept out?
04-1327 +++$+++ 16392 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I -- I think it might be harmless at that point. Any error excluding might be harmless. But the third party guilt evidence inferentially and directly says, you know, this DNA isn't all it's cracked up to be.
04-1327 +++$+++ 16393 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why would it be -- I mean, if it meets the standard for harmless, it suggests that it didn't make a difference, would not have been likely to make a difference with the jury, and therefore it could have been excluded in the first instance.
04-1327 +++$+++ 16394 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I just think it might be that it was then -- the error might not have been prejudicial in context of the record as a whole. But a jury could still, looking at the third party guilt evidence say, well, you know, this DNA isn't all it's cracked up to be. There's nothing sacrosanct about DNA or forensic evidence.
04-1327 +++$+++ 16395 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, isn't that exactly what the rule is designed to prevent? In other words, you have no challenge to the DNA evidence, and yet you bring up some third party guilt evidence. And your suggestion just now is, well, the jury might think maybe there's not that much to the DNA evidence.
04-1327 +++$+++ 16396 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1327 +++$+++ 16397 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In other words, it gets them off on a detour, distracts their attention from the evidence that is before them.
04-1327 +++$+++ 16398 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the jury might be absolutely right about that, and it's their determination to make. It might be that they don't challenge the DNA evidence because the trial judge didn't give them funds to do it. In this case they did it because a Washington, D.C. law firm essentially was able to provide funds for them to really look at and challenge the inadequacies in this evidence. It's that -- the problem is that even if you don't read the opinion like we do -- and we think it's the only fair reading -- there's no question that the South Carolina rule requires you to overcome it and it stacks the deck. Thank you.
04-1327 +++$+++ 16399 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
04-1329 +++$+++ 16403 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first in Illinois Tool Works Inc. v. Independent Ink, Inc. Mr. Pincus.
04-1329 +++$+++ 16405 +++$+++ FALSE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: In its opinion in Jefferson Parish, the Court stated that the key characteristic of illegal tying is the seller's exploitation of its control over the tying product to force the purchase of the tied product. The Court held that the per se rule against tying applies only if the plaintiff proves that the seller has -- and I'm quoting from that opinion. The quote is on page 12 of our brief -- the special ability, usually called market power, to force the purchaser to do something that he would not do in a competitive market. If the Court were confronted today for the first time with the question whether the presence of a patent on some aspect of the tying product by itself demonstrates the existence of this forcing power, it's inconceivable that the Court would adopt that rule. Not only is there no empirical evidence to support it, there's no logical basis for such a presumption. The focus of patent rights is very different from antitrust market analysis. Patent rights are tied to a particular invention. Market power is buyer-centric. A buyer may be able to choose from a number of different products, some patented, some not, to satisfy his or her need. The existence of a patent on one of those devices does not preclude at all the existence of alternatives that are equally attractive, maybe even more attractive, to the customer.
04-1329 +++$+++ 16406 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Let me ask you about patents and tying products. Are there component parts that are patented in today's complicated world, and do they -- do they -- do the component parts become part of the tying product? I mean, how does that work?
04-1329 +++$+++ 16407 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Your Honor. One of the -- one of the evils of the presumption is that there's nothing that says that the patent has to be on the entire product. The -- the patent could be on a component of a product. And in today's world, as Your Honor says, television sets, CD devices, cell phones, all of those devices are loaded with components, one of which may happen to be patented. It may not be the one that makes the -- it may not have to do with anything that makes that product attractive in the marketplace, but the presence of that patent would be relied upon to make the presumption applicable.
04-1329 +++$+++ 16408 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Well, does the patent somehow spread to cover the larger product? I -- I don't see how it works.
04-1329 +++$+++ 16409 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think -- I think the theory of the application of the presumption is, first of all, obviously, if the whole product is patented, then the presumption would be applicable. But I think there also is an argument that even if some component is -- is patented, that component, because it's in that product, gives that product market power because the theory would go the patent would exclude the ability of other competitors in the market to use that component.
04-1329 +++$+++ 16410 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I suppose -- I suppose we could say -- I just hadn't thought of it. I -- I suppose we -- we could say that it's not a separate product. I mean, no -- no -- there's no market for the -- for the small micro-component in the TV. You're selling a TV.
04-1329 +++$+++ 16411 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But then I think the argument --
04-1329 +++$+++ 16412 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's an -- a very interesting question, but it seems to me that we could handle that by just saying, well, there's not a separate product.
04-1329 +++$+++ 16413 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you could, but I think the question -- the question would be whether that product as a whole in the marketplace, which is -- part of it is made up by this component. The argument would be, if I'm a competitor, I can't duplicate that product because that component is patented, and therefore, that product that contains the patented component should get the benefit of this market power presumption.
04-1329 +++$+++ 16414 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's not a --
04-1329 +++$+++ 16415 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why would the person want if he thought that? I mean, why would a person want a patent if, in fact, he didn't think that it gave him the power to raise price above what the price would be in its absence?
04-1329 +++$+++ 16416 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, at the -- at the time that -- that the inventions are patented, it's not clear -- many inventors don't know what the market value of their product will be.
04-1329 +++$+++ 16417 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, you see, you're talking about the wide -- you -- you say there are a lot of failed patents. The person got it because he thought it would, but he shouldn't have because it actually made no difference.
04-1329 +++$+++ 16418 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1329 +++$+++ 16419 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There might be. I don't know.
04-1329 +++$+++ 16420 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our system encourages -- there -- it -- it certainly is possible there are many patents that -- that are -- there are many inventions that are patented that don't have value in the marketplace. There are some that do. The problem with this --
04-1329 +++$+++ 16421 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, there might be. There's a set of valueless patents.
04-1329 +++$+++ 16422 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but the fact --
04-1329 +++$+++ 16423 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And in respect to there being a valueless patent, the owner would not be able to raise the price over what it otherwise would be. And why not then make that a defense, that a person could say, I have a valueless patent, and he could introduce evidence to prove it?
04-1329 +++$+++ 16424 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I -- I think there are -- there are two answers to that question. First of all, there's no empirical showing and -- and no logical evidence that there -- the set of valuable patents is larger than the set of valueless ones. And, in fact, it's probably the evidence is to the contrary, that the set of valueless patents is quite considerable. So by creating a presumption and shifting the burden based on something that's demonstrably not true doesn't have a logical basis.
04-1329 +++$+++ 16425 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ As I understand the respondent's position, it's not the component. They're not arguing that. So you're answering a hypothetical case that isn't presented here. And also, respondent says that we are talking only about patents where there is a successful tie. So leave out all those cases where I have a patent and it's never produced a penny, and somehow I can make mileage out of that.
04-1329 +++$+++ 16426 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. I -- I think respondent has moved away from -- from the Loew's assertion that the mere existence of a patent shows uniqueness sufficient to -- to satisfy the market power test. And -- and one of the next level presumptions that they propose is that if the -- if the patent ties successful in the marketplace that shows market power. But that's inconsistent with this Court's recognition in -- in a number of cases that ties can be successful in the marketplace not because they're backed by market power, but because they are attractive to consumers in a competitive market.
04-1329 +++$+++ 16427 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, let's go to --
04-1329 +++$+++ 16428 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Pincus, you -- you had a second point you were going -- in response to Justice Breyer's question. What was your second point?
04-1329 +++$+++ 16429 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, my second point, in response to Justice Breyer, if I can recall it, was that in the component situation, which was one of the situations that we were talking about, that the problem with the component test, the presumptions are supposed to be easy to apply. And if you say, well, the entire device has to be patented, then the next case is going to be a case where 85 percent of the key ingredients are patented, 15 percent aren't, and the question will be, does the presumption apply? So you're -- you're setting up a presumption which is designed to -- for ease of application that will become extremely difficult to apply.
04-1329 +++$+++ 16430 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't the refutation of the presumption really the same thing as a demonstration of market power?
04-1329 +++$+++ 16431 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The -- the --
04-1329 +++$+++ 16432 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and we usually leave the demonstration of market power to the -- to the plaintiff in the case.
04-1329 +++$+++ 16433 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Your Honor, and --
04-1329 +++$+++ 16434 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it -- it'd be rather strange to -- to have in this one category of cases the market power has to be -- or lack of market power has to be demonstrated by the defendant.
04-1329 +++$+++ 16435 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be extremely strange especially because there's the lack --
04-1329 +++$+++ 16436 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you think there's a distinction -- do you think there's a distinction between components in cases where there's a one-on-one relationship between the tied product and the tying product and cases like this which involve metering? Do you think there's a different possible approach between the two?
04-1329 +++$+++ 16437 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, we don't because the -- the economic literature --
04-1329 +++$+++ 16438 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But your earlier point was we know that a whole lot of patents are not all that important. But is it not fair to assume that when a patent can generate metering in this particular kind of situation, that it -- that it's a likelihood that it has more power than the average patent?
04-1329 +++$+++ 16439 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I -- I think, A, it's not reasonable to assume that, Your Honor, and it's certainly not reasonable to assume it has the level of market power that Jefferson Parish required, which was significant market power. The Court there held that a 30 percent share of the relevant market was not enough. So we're talking, in the tying context, of a very considerable market power test.
04-1329 +++$+++ 16440 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if it's -- if it is true, as your opponent says -- and I don't know if it is or not -- that you're able to get twice the price for the ink than you otherwise would get, does that -- is that any evidence of market power?
04-1329 +++$+++ 16441 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first of all, that -- that is not -- not true. The record reflects that the --
04-1329 +++$+++ 16442 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if it were what the record reflected.
04-1329 +++$+++ 16443 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if it were what the record reflected and there was a relevant market that was -- that was restricted to this ink, yes. But we don't think that the existence of a patent, even in the requirements context, fulfills that test for the reason that the economic literature is quite clear that price discrimination, which is what their theory -- their -- their theory is metering should be sufficient to give rise to a presumption because price discrimination supposedly signals market power. But as we discuss in our reply brief, there is a tremendous amount of economic literature that says that is in fact not true, that price discrimination occurs in very competitive markets from airlines to restaurants to coupons.
04-1329 +++$+++ 16444 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But isn't it also true that some -- some economists disagree? And I'm just wondering if there's disagreement among economists, should we take one view over the other?
04-1329 +++$+++ 16445 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think the problem, Your Honor, is that the presumption does take one view over another based on -- based on something that was adopted at the time there was no analysis. The presumption says we're going to presume market power, and as Justice Scalia said, we're going to put the entire burden of refuting market power, in this one context, separate from all of antitrust analysis, on the defendant. And we're only going to do it in tying. We're not going to do it in exclusive -- vertical exclusive dealing arrangements where the product is a tie. In that situation, which theoretically should be exactly the same, there's never been a assumption that there should be a market power presumption when the product that's the subject of the exclusive dealing arrangement is patented. Territorial arrangements. There's never been an assertion that that's true. This -- this is a relic really of the fact that when the Court decided these patent tying cases, there was a hostility to the expansion of -- of intellectual property rights beyond the scope of the patent. That first was reflected in patent misuse doctrine, and then it was carried over to antitrust doctrine without any analysis about whether the assertion that the patent was unique, and therefore there were anticompetitive effects, had anything to do with the level of anticompetitive effect that the Court required to show an illegal tie.
04-1329 +++$+++ 16446 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Pincus, let me go -- ask you to follow up on that and, in effect, go back to -- to Justice Ginsburg's question. I will assume that patents as such do not give market power. I will assume that there are many successful ties in which that is also not true. What is -- is your kind of short answer to the -- to the argument, which I think Justice Ginsburg was getting to, that if it is, in fact, worth litigating in an antitrust case, that is a pretty good -- darned good reason to assume that there is market power and that it is, of course, having a discriminatory price effect? What's the short answer to that?
04-1329 +++$+++ 16447 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the short answer to that, Your Honor, is that there are a lot of antitrust cases that are filed that aren't successful, and there's no reason to believe that just because a plaintiff files a case, that it is going to be successful. And, in fact, establishing a rule that the filing of the case meets an element is -- is a bit of an attractive nuisance.
04-1329 +++$+++ 16448 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I was going to say I --
04-1329 +++$+++ 16449 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's going to attract claims --
04-1329 +++$+++ 16450 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I would have thought the answer was you could say that in any case in which an antitrust case is -- is brought. So essentially it -- it gets to be reductionist.
04-1329 +++$+++ 16451 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, and I think it's an attractive nuisance. If that's the rule, if I can satisfy the rule by filing a lawsuit, I'm certainly encouraged to file a lawsuit regardless of whether there's underlying really market power or not because I -- no one will ever -- I won't have to worry about it. The burden will be shifted to my opponent.
04-1329 +++$+++ 16452 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In other words, the fact --
04-1329 +++$+++ 16453 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you think the existence of the laws of -- of -- the existence of the lawsuit -- of -- of the presumption is what drives a lawsuit?
04-1329 +++$+++ 16454 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, exactly, Your Honor.
04-1329 +++$+++ 16455 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, does it drive the -- I mean, it -- it drives the lawsuit with respect to one element. And -- and I -- I guess one argument is if -- if we reaffirm the rule that you're challenging, it will invite more lawsuits. They'll say, boy, the Supreme Court really means it with this presumption now. Has that, in fact, been the case that the presumption, at least as it has been understood up to this point, has driven lawsuits and, in fact, has driven lawsuits that ultimately were unsuccessful even though the market power point was, of course, satisfied?
04-1329 +++$+++ 16456 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there certainly have been lawsuits that are unsuccessful, but -- but, Your Honor, one of the problems with our litigation system is many cases are not tried to completion on the merits, especially expensive antitrust cases. So if a case --
04-1329 +++$+++ 16457 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but this is -- this is basically a practical question, and I -- I'm trying to get a -- I guess because I'm not an antitrust lawyer, I'm trying to get a handle on how the presumption is actually working in the system, and I'm not sure that I understand it.
04-1329 +++$+++ 16458 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, right now I would say the presumption status is somewhat murky. When the -- when the Antitrust Division in the FTC came out with their guidelines and essentially disavowed and rejected the recognition of a presumption and the Sixth Circuit also rejected the existence of the presumption, there was a -- both a conflict among the courts of appeals and certainly amongst the district courts. And also, you had the Federal regulators saying this presumption doesn't make sense. That, I think, chilled to a large extent -- not completely, but to some extent -- what would otherwise have been -- what would have happened in the lower courts if there had been a full-throated affirmance of the presumption. And I think the issue now is prognosticating a bit what will happen if the Court were to affirm the presumption. And I think it is a fair assumption that a presumption that says if you file a lawsuit alleging tying of a product that has a patent or is patented, then the filing of the lawsuit plus the patent means that the burden of market power has shifted, then if I'm a competitor trying to put some cost on my competitor in a market, that's a pretty low-cost thing to do because all I do is file the lawsuit. I get the benefit of presumption. They've got to spend the money to disprove market power. And the market power element is peculiarly important in the tying context because we're dealing here with a per se rule, although a somewhat peculiar per se rule because it has these four prerequisites. But the market power one is the critical one and certainly one that the Court identified --
04-1329 +++$+++ 16459 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose it's the other one that's the critical one.
04-1329 +++$+++ 16460 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I think the --
04-1329 +++$+++ 16461 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the other one being that -- the attack on the problem is there happens to be instances where tying is justified for procompetitive reasons, risk-sharing, maintaining product quality, probably Jerrold Electronics. There are a number of them. And the real problem is that the law hasn't admitted a defense. But where the attack should be is on the tied product, not the tying product. What do you think of that?
04-1329 +++$+++ 16462 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I -- I think there obviously is -- a lot of commentators have expressed concern about the -- whether the per se rule makes sense. And -- and Justice O'Connor. writing for four Justices in Jefferson Parish, made exactly that point. But I think whether or not the per se rule applied, there's no logic underlying this presumption. And -- and at least as the law stands now, the other elements are their two products. There are a hundred pages in Areeda and Turner --
04-1329 +++$+++ 16463 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can I ask you --
04-1329 +++$+++ 16464 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- with the jurisprudence of two products. So that's not a test that's going to be effective in screening out unjustified claims. Yes, sir.
04-1329 +++$+++ 16465 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can I ask you how far your position extends? I think there's a good argument that if a patent is really a good patent, it doesn't really matter whether the patentee charges a very high royalty or gets a -- reduces the royalty and gets profits out of the tied -- tied product. In your view, is the rule sound that if it is a monopoly in the tied product, that there is an antitrust problem?
04-1329 +++$+++ 16466 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If there's a monopoly in the tied product?
04-1329 +++$+++ 16467 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In -- in the tying product. Excuse me. In the tying product.
04-1329 +++$+++ 16468 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ All we're asking for is --
04-1329 +++$+++ 16469 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know that's all you're asking for --
04-1329 +++$+++ 16470 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- is the opportunity to demonstrate market power, and if --
04-1329 +++$+++ 16471 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- but I'm just wondering if it isn't -- if it isn't the logical conclusion of your position that it really doesn't matter, even if there is a monopoly in the tying product.
04-1329 +++$+++ 16472 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. If there is a monopoly in the tying product, Your Honor, that's one of the elements that the Court requires. That would be satisfied, and obviously, the existence of the patent would be a factor.
04-1329 +++$+++ 16473 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but I'm -- I'm asking sort of an economic question rather than a legal question.
04-1329 +++$+++ 16474 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Whether even if there was a --
04-1329 +++$+++ 16475 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If your position is all the economists say this is a lot of nonsense, I think maybe it's a lot of nonsense even if there's a monopoly in the tying product is what I'm suggesting.
04-1329 +++$+++ 16476 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think there are some that hold that view, Your Honor, but there are some that don't. But all agree that it is critical to show market power in the tying product. If you can't meet that test, there's really no problem. If you can meet that test, then there's a division. Some say there's a problem and some say there's not.
04-1329 +++$+++ 16477 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There was a -- a point that you were in the process of answering. The -- the argument is made that this tying product had such clout that you were able to extract not twice but three times the price for the tied product. And you were saying no to even double the price.
04-1329 +++$+++ 16478 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. As we note in our reply brief, the -- the document that was the basis of respondent's own damages study in this case said that the average price charged by Trident was $85. So there's no proof of that. And the district court specifically found, in fact, that respondent was not relying on so-called direct evidence of market power in this case, such as supracompetitive prices. I'd like to reserve the balance of my time.
04-1329 +++$+++ 16479 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Pincus. Mr. Hungar, we'll hear from you.
04-1329 +++$+++ 16481 +++$+++ FALSE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The presumption that patents confer market power is counterfactual, inconsistent with this Court's modern antitrust jurisprudence, out of step with congressional action in the patent area, contrary to the views of leading antitrust commentators and the Federal antitrust enforcement agencies, and unnecessarily harmful to intellectual property rights and procompetitive conduct. For all those reasons, the presumption should be rejected. There's no plausible economic basis for inferring market power from the mere fact that a defendant has a patent on a tying product. As this Court has recognized, many commercially viable products are the subject of patents that do not confer market power because there are reasonable substitutes. Nor does the combination of a tie in a patent provide a valid basis for presuming market power. The patent may be entirely incidental and tying is ubiquitous in fully competitive markets.
04-1329 +++$+++ 16482 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Mr. Hungar, is the issue of the presumption, as it applies to copyright, part of the question presented? And do we have to decide that issue here?
04-1329 +++$+++ 16483 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Strictly speaking, it's not, Your Honor, because of course, this is a patent case.
04-1329 +++$+++ 16484 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Right.
04-1329 +++$+++ 16485 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the only case in which this Court has actually applied a presumption of economic power is the Loew's case, which was a copyright case. In fairness, however, Loew's based the presumption that it recognized in the copyright context entirely on the reasoning of the patent misuse cases. So a -- a holding that there is no presumption in the patent context would eviscerate the underlying rationale for Loew's. Indeed, as we explain in our brief, Congress in our view has already done that because, again, Loew's expressly states that the rationale for the presumption it adopts is that in the patent misuse cases, the Court has -- at that time, had rejected any attempt to extend the monopoly. But Congress, in 1988 in the Patent Misuse Reform Act, overruled those cases and held that there cannot be patent misuse in the absence of an actual showing, based on all the circumstances, of market power. So the rationale and underpinnings of Loew's have been entirely repudiated, which is one of the reasons why we think that this Court ought to make it clear that there is no presumption of market power in a tying case where there --
04-1329 +++$+++ 16486 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And market power -- you mean price -- ability to charge a price higher than otherwise would be the case?
04-1329 +++$+++ 16487 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As this Court defined market power --
04-1329 +++$+++ 16488 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ As you're defining it. As you're defining.
04-1329 +++$+++ 16489 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, yes. The ability to raise price --
04-1329 +++$+++ 16490 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Fine. Then you're talking about patents where the person who paid for the attorney went to the Patent Office and so forth. That was just a mistake.
04-1329 +++$+++ 16491 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. Certainly many patents are valueless, which is one of the reasons why --
04-1329 +++$+++ 16492 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But then are you relying on that, the existence of valueless patents?
04-1329 +++$+++ 16493 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's -- that's part but not all.
04-1329 +++$+++ 16494 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If you're going beyond that, which patents are you talking about?
04-1329 +++$+++ 16495 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Patents can be valuable, but not confer meaningful, significant market power. What this Court said in Jefferson Parish is significant market power. I mean, there can be lots of circumstances in which a competitor has the ability for some customers in some circumstances to raise price to some extent, but we wouldn't consider that significant market power. And patents can confer value in other ways. For instance, in many high-tech industries in the modern high-tech environment, a patent library is necessary merely in order to get cross licenses from your competitors that would allow each of you to compete. They're fully competitive markets, but without a patent library, you can't get in the door. And all the competitors have their patent libraries and they agree to cross licenses to avoid the -- the inconvenience and cost of patent infringement.
04-1329 +++$+++ 16496 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, I see.
04-1329 +++$+++ 16497 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Mr. Hungar, one of the amicus briefs for the respondent was submitted by a professor, I think, named Barry Nalebuff --
04-1329 +++$+++ 16498 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-1329 +++$+++ 16499 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ -- which took the view that the Court should, in any event, retain the presumption where a patent is being used to impose a variable or a requirements tie. Do you have any comment on that view?
04-1329 +++$+++ 16500 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. We think that's wrong for several reasons. In the first place, the presumption recognized in Loew's, of course, has nothing to do with a requirements tie. So, in effect, what that brief is urging the Court to do is not to retain the Loew's presumption but, rather, to create a new one. And there is certainly not the requisite evidentiary basis or consensus among --
04-1329 +++$+++ 16501 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it wouldn't be a new one. It would be just following the old IBM case and all those cases.
04-1329 +++$+++ 16502 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, those -- those cases don't state a presumption of market power. Market power wasn't even relevant in those days.
04-1329 +++$+++ 16503 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but that's the example they're saying it would be following. It's not a brand new idea.
04-1329 +++$+++ 16504 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it is a brand new idea in the sense that they would -- they would ask the Court to adopt a presumption of market power, which the Court did not recognize in the IBM case or any of those cases because market power was not a part of the analysis in those cases. It wasn't relevant. It wasn't relevant in the -- even in the International Salt case where the Court -- where the Court later made clear that the -- the ability to prove the absence of market power was deemed irrelevant by the Court in International Salt. Market power's relevance didn't even begin to be recognized --
04-1329 +++$+++ 16505 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But your -- your answer to Justice O'Connor is there should be no distinction even if there is evidence that there's a long-term relationship, a requirements relationship, and an increase in price.
04-1329 +++$+++ 16506 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, an increase in price is a separate issue which might or might not, depending on the circumstances, be probative of market power in the -- in the tied product market or, again, depending on the circumstances, it might be probative of market power in the tying market and certainly a plaintiff would be able to rely on such evidence if they could establish it. But the -- the fact of a requirements tie, standing alone together with a patent, is not meaningfully probative of market power. His thesis is that requirements tie is always used for metering, and metering is evidence of price discrimination, and price discrimination is evidence of market power. But again, there's a great deal of disagreement and, indeed, the majority view is that price discrimination is not necessarily or even usually evidence of market power. In fact, price discrimination is common in entirely competitive markets such as grocery retailing, airline industry, and many other contexts. So -- so the -- the logic of the -- of the presumption he urges doesn't even hold together, and certainly there isn't the relevant -- the requisite consensus that would justify the fashioning of a new presumption that has never been recognized by the Court before. The Loew's --
04-1329 +++$+++ 16507 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does the Government have -- I'd like to ask you the same question Justice Stevens asked Mr. Pincus about the broader question. Much of the economic literature on which you rely sort of sweeps aside the particular question today because it rejects the notion of tying as a problem in the first place. But does the Government have a position on that? Assuming there's monopoly power in the tying product, the Government's position is that that still presents an antitrust problem?
04-1329 +++$+++ 16508 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1329 +++$+++ 16509 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This is not part of a broader approach to get rid of the tying issue altogether, is it?
04-1329 +++$+++ 16510 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly we have not asked the Court to -- to do that, and that's not necessary to address in this case. The -- they're really two separate issues. That is, is it -- is it rational to presume market power from the existence of a patent is quite separate and distinct in our view from the question whether it's rational to have a per se tying rule when there is market power. They're completely distinct.
04-1329 +++$+++ 16511 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and what is the Government's position on the latter question?
04-1329 +++$+++ 16512 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice O'Connor made persuasive points in her concurring opinion in Jefferson Parish in which she explained why, in the view of those Justices, that the per se rule does not make a whole lot of economic sense. We have not taken a position on that question in this case because, in our view, it's not necessary to reach that in order to reverse the judgment below which -- which rests entirely on the presumption. The Loew's presumption is also, in our view, undermined by this Court's modern antitrust cases, such as Jefferson Parish and Eastman Kodak, because the presumption -- the fact that the Loew's presumption recognizes is not market power in the modern sense of the term, as it is understood and required under Eastman Kodak and Jefferson Parish. Rather, what the Loew's Court said is that uniqueness suffices to establish the requisite economic power regardless of the ability to control price. The Court specifically said on page 45 of the decision that -- that ability to control price need not be shown. That's a different fact that -- that is being presumed in Loew's than the fact that is now required as part of the Court's modern per se tying jurisprudence, which is actual, significant market power. So even if the Loew's presumption had any continuing force, which we don't think it does, it doesn't presume the relevant fact under this Court's modern cases. So for that reason as well, the judgment of the court of appeals is incorrect. As has been discussed, we think that the presumption is not only wrong but has deleterious consequences. It essentially imposes a litigation tax on the ownership of intellectual property and -- and --
04-1329 +++$+++ 16513 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But isn't that also true even if there's monopoly power? That's what -- I really think it's a very interesting question as to whether it makes any difference whether the monopolist who happened to have a patent just charges high prices for product A or decides to charge a little less for product A and make hay out of product B.
04-1329 +++$+++ 16514 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, as Justice O'Connor explained in her Jefferson Parish concurrence, there's significant force to that argument. But -- but again, it's not presented here because there's --
04-1329 +++$+++ 16515 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. I understand it's not. I'm just kind of curious about where we're going down -- we're going down a new road in this whole area. I'm just wondering how -- what our destination is.
04-1329 +++$+++ 16516 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think, as I said, those are completely separate and -- and really, I would say, unrelated points because what we're talking about here is not whether -- whether market power is relevant, but rather, whether the plaintiff should be required to prove an element of its case, which is the normal rule that this Court and the lower courts apply in -- in the whole array of contexts, including in antitrust cases in every other context.
04-1329 +++$+++ 16517 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We're talking about components, for example. It doesn't seem to me it makes any difference whether General Motors has a monopoly or not when it wants to sell, you know, two components as part of the same package. Anyway, I've gone astray too much.
04-1329 +++$+++ 16518 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor.
04-1329 +++$+++ 16519 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Hungar. Ms. Sullivan.
04-1329 +++$+++ 16521 +++$+++ FALSE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Petitioners and the Government have fallen far short of the -- meeting the burden that would be required to overrule a presumption that has been in force for nearly 60 years since the International Salt decision, a presumption that, as Justice Stevens acknowledged, reflected the Court's prior experience dating back to the enactment of the Clayton Act in 1914 with the use of patents to enforce requirements ties like the one at issue here, buy our printhead and you have to buy our ink at whatever price we set for the life of the product, even after the patent has expired. It was precisely the Court's experience with a series of patent cases in which such requirements ties had been imposed that led it to set forth the presumption in International Salt.
04-1329 +++$+++ 16522 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Well, this isn't a requirements tie case, is it?
04-1329 +++$+++ 16523 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, it is, Justice O'Connor. This is absolutely a requirements tie case. This is a case in which Independent Ink seeks to sell ink that is required to operate Trident's printheads, their piezoelectric impulse ink jet printheads used to put carton coding directly onto cartons. And the requirement here -- a requirements tie is that if you buy our good A, you need to buy good B that's a necessary --
04-1329 +++$+++ 16524 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that --
04-1329 +++$+++ 16525 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- operating it in perpetuity.
04-1329 +++$+++ 16526 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that, I would think, would be one of the strongest cases for not having a per se rule because if, in fact, you have a justification, in terms of sharing risk with a new product, that would be one of the cases where you would expect to find a tie. And -- and so I'm not really very persuaded by the effort to draw a wedge between requirements and other things. But what I do find very difficult about this case is -- you can see from what I'm saying -- that at the bottom, I think there are cases where tying is justified. But the way to attack that would be to say here, here, and here it's justified and that would have to do with the tied product. It would abolish the per se rule, making it into a semi-per se rule. But here, we're attacking a different thing. We're attacking the screen, which is a -- the tying product. Now there, that's just a screen. And -- and so I'm -- I'm not certain whether attacking the screen and insisting on a higher standard of proof is better than nothing or whether you should say, well, leave the screen alone and let's deal with the tied product on the merits. That I think is what Justice Stevens was getting at too. And -- and I'm -- I'm not being too clear. You understand where I'm coming from, and I -- I want you to say what you want about that. But that's what's bothering me here.
04-1329 +++$+++ 16527 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, this is not Jerrold Electronics. There's no indication that in this case there was any price discount given on the printheads in order to make it up through a supracompetitive royalty payment extracted from the end users by requiring them to pay three times the market for ink. The end users are charged three times what Independent Ink would sell them the ink for directly. And -- and the original equipment manufacturers, the printers who put the Trident printhead into the printer to sell to the end users like General Mills and Gallo Wines -- they're charged twice the price. So there is a markup on the ink. This is a case in which a supracompetitive profit is being extracted as a kind of royalty on the ink sales for life.
04-1329 +++$+++ 16528 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. This case isn't what's bothering me.
04-1329 +++$+++ 16529 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Justice Breyer, if I could just remind us how narrow the presumption is here. The presumption here attaches to one element in a tying case. There are still other screens. The other screens -- the plaintiff still bears the proof of showing that there are two separate products. As Justice Kennedy pointed out, if two products are bundled together, if the tie is bundling two products together, there may well be a single product. If there's a procompetitive reason for a bundle, that will be screened out by the requirement that a tie involved tying product A to product B. If products A and B are combined as components in a single product, the screen of separability will operate. And --
04-1329 +++$+++ 16530 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But this in -- as a practical matter, this screen is really the heavy lifting in the antitrust cases. This is where you need all the economic studies, you have the discovery, the experts. This is what costs a lot of money and shifts a lot of the litigation burden on the other side if you have a presumption.
04-1329 +++$+++ 16531 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect, Mr. Chief Justice, this does not entail a heavy burden on the defendant. What the presumption does is simply presume from a patent used to effect, as here, a requirements tie. And Justice O'Connor, it's not just a component in the larger product. The patent has to be used through the licensing of the patent to effect the tie. We're not suggesting that the presumption attaches to any product that happens to contain a patent in the component. But when that happens, Mr. Chief Justice, the -- when the patent is used through its license to exact in perpetuity -- you have to buy a requirement for life -- it is quite fair to ask the defendant to come forward and say, well, that's not so bad because there are reasonable substitutes. We just looked at them when we got our patent in order to show that it was novel. We looked at what the prior art was, and we've studied our competitors and the printhead market closely --
04-1329 +++$+++ 16532 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, except that the -- the Chief -- Chief Justice's question -- and it -- it's the same question as Justice Souter had and is what concerns me. My -- my understanding -- and it's not an understanding based on any experience litigating in this area -- is that when you hire economists, in order to establish market power, this is a substantial undertaking. It's -- it's a significant part of litigation costs. And what you're saying is that this is an important rule so that we -- we vindicate the important rule by putting the presumption on -- on the defendant. But you can say that with many important rules in many other areas.
04-1329 +++$+++ 16533 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, the patent presumption makes economic sense because, more likely than not, a patent used to effect a requirements tie will have market power. Justice Breyer said at the outset that a patent is intended to confer market power. That's what a patent is -- is registered for. It's intended to create legally enforceable barriers to entry that make it rivals -- entrance into the market more difficult. That's what it's intended to do. It doesn't matter that 95 percent --
04-1329 +++$+++ 16534 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ More often than not, it doesn't.
04-1329 +++$+++ 16535 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 95 percent of patents are valueless according to petitioners' own statistics, but they won't arise in a patent tying case because if they're valueless, they won't be licensed. And if they're not licensed, they can't be used to effect the tie.
04-1329 +++$+++ 16536 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that isn't so. I mean, you could have a patent that was valueless or didn't itself confer very much, but the person is trying to establish the market for the product. It's a component, and he attaches this tied product as a counting device knowing that if it's successful, everybody makes money, and if it's not successful, he and everybody else lose. That's -- that's the kind of justification. And that could happen with --
04-1329 +++$+++ 16537 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, Justice Souter asked before to petitioners' counsel, has there been any evidence of frivolous litigation, tying litigation, brought where there was a valueless patent to which a tie to a requirement was -- was made, and petitioners' counsel could name none. The focus here has been on the wrong pool. The arguments are about valueless patents, which there's no evidence they've been used to tie --
04-1329 +++$+++ 16538 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me be more specific. A person has a patent on an item in a machine. This is a great machine. It's fabulous. We've all had friends who have tried to get us to invest in such machines. We don't know what it does, nor does anyone. (Laughter.)
04-1329 +++$+++ 16539 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if it's a success, we'll all be rich. Now, he decides to tie something to that.
04-1329 +++$+++ 16540 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To try to --
04-1329 +++$+++ 16541 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ To tie something to the great machine.
04-1329 +++$+++ 16542 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To make up the money through a requirements tie in perpetuity.
04-1329 +++$+++ 16543 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Correct, if it takes off.
04-1329 +++$+++ 16544 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If it takes off.
04-1329 +++$+++ 16545 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If it takes off, everybody will be rich, and if it doesn't take off, who cares. Now --
04-1329 +++$+++ 16546 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer --
04-1329 +++$+++ 16547 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that could happen.
04-1329 +++$+++ 16548 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice --
04-1329 +++$+++ 16549 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And there often does, I guess.
04-1329 +++$+++ 16550 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, that couldn't happen unless there was market power in the patented product. There's reason -- there's no reason why a consumer would agree to pay supracompetitive prices for the requirement --
04-1329 +++$+++ 16551 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'll put this machine in your store for a penny. A penny.
04-1329 +++$+++ 16552 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not the case here.
04-1329 +++$+++ 16553 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ By the way, a penny and you have to buy marvelous component. And by the way, if it takes off, you'll buy a lot of marvelous component, and if not, not.
04-1329 +++$+++ 16554 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This returns us to Justice Stevens' question. Can metering be procompetitive? And the petitioners and Government have utterly failed to show how metering could be procompetitive in a requirements tie case. The briefs of Professor Nalebuff and Professor Scherer, the only economist briefs submitted in the case, show how metering is not necessarily efficient. Even if it produces -- produces some kind of gain to production, it transfers surplus from consumers. And in any event, metering -- if -- if the goal here were to try to impose the royalty on the ink, if the goal here -- if -- if Trident really wanted to say we want to be efficient price discriminators, we're charging less for the printhead -- and there's no evidence there was any kind of discount on the printhead here. This is not a penny for the product. These are $10,000 printheads that go into $20,000 printers that last for 20 years. So this is not --
04-1329 +++$+++ 16555 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I have to interrupt to say --
04-1329 +++$+++ 16556 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the discount case.
04-1329 +++$+++ 16557 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I think your opponent would say the district court made a finding to the contrary.
04-1329 +++$+++ 16558 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, we believe the district court erred in holding that there was no --
04-1329 +++$+++ 16559 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-1329 +++$+++ 16560 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- direct evidence of market power here, and we urge, as an alternative ground for affirmance, that there's ample direct evidence of market power here. Mr. Chief Justice?
04-1329 +++$+++ 16561 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If your -- if your arguments are right, isn't that going to typically be the case? In which case, why do you need a presumption at all?
04-1329 +++$+++ 16562 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, that is not typically going to be the case. This is an unusual case in that the direct evidence of market power comes from defendants' own customer surveys, which at pages 393-394 of the joint appendix indicate that the customers here were deeply dissatisfied with having to pay supracompetitive prices for ink when Independent Ink and other independent providers were offering them discounted ink on the market. The license here precluded either the original equipment manufacturers or the end users from buying that ink. The license extends to customers of Trident and to their end users. And the original equipment manufacturers were deeply dissatisfied. Jefferson Parish says that there's evidence of market power when a -- the producer in the tying product market is able to impose onerous conditions that it could not impose in a competitive market --
04-1329 +++$+++ 16563 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the -- the only issue is who has to prove that. I mean, you -- you could find out who their customers are in -- in discovery and -- and go to their customers and then, you know, show that all of the customers are dissatisfied and wouldn't buy -- wouldn't buy the machine -- wouldn't buy the ink were it not that they needed the machine. I mean, it's just a question of -- of who has to prove it. That's all.
04-1329 +++$+++ 16564 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Justice Scalia, but it's -- there -- there -- it would take a far better showing than the petitioners and the Government have made to overturn a sensible rule of thumb that makes sense as a matter of theory and makes sense of -- as a matter of practice. They've failed to indicate a single case in which there's been frivolous litigation over a patent tie. The presumption, if it was going to unleash this wave of frivolous litigation because the screen was too low, you would think that they could name a single case over the last 60 years in which that occurred.
04-1329 +++$+++ 16565 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We don't know how many people paid -- paid off the plaintiff. We -- you know, frivolous litigation becomes evident only when it proceeds far enough that it's -- it's reported. What -- what I assume would happen most often is that the -- the person who has the patent would just say it's just not worth the litigation. Here. Go away. We don't know how much of that there is.
04-1329 +++$+++ 16566 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in this case that isn't so because the petitioner initiated the litigation. Let us remember that this case began as a patent infringement action in which Trident came after Independent Ink for patent infringement claims, which were dismissed with prejudice by the district court, found to be unsustainable. But, Mr. Chief Justice, just to go back to the direct evidence point, you asked before isn't market power doing all the heavy lifting. Market power can be shown through expert evidence, and that's what the district court erroneously said that we had failed to provide. But it can also be shown, as this Court has acknowledged in Kodak, as -- and in FTC v. Indiana Dentists, market power can be shown directly. If there's direct evidence of anticompetitive effects in the tied product market -- here, three times the price one wants to pay for ink in order to use the patented printhead for 20 years and thereafter -- if there's evidence directly of anticompetitive effect in the tying -- in the tied product market, then there's no need for that expert evidence. This happens to be the rare case in which the petitioner was cooperative enough to have taken customer surveys showing the -- the dissatisfaction its customers had over a long period of years with having to pay supracompetitive prices for ink. But that won't be the general case. And in other cases, the patent rule is a sensible rule of thumb -- the patent presumption, not a rule, is a sensible rule of thumb for capturing the wisdom that patents used to enforce requirements ties are more likely than not to show market power. That's what they're intended to do through barriers to entry, and that's what they have done. In fact, the petitioners and Government have been able -- unable to show a single procompetitive requirements tie.
04-1329 +++$+++ 16567 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you conceding that the presumption makes no sense outside of the requirements metering context?
04-1329 +++$+++ 16568 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, there could be a sensible argument that you should always presume requirements ties to indicate market power. That's not the law, and we don't urge it here. We think that you capture the same point if you retain the presumption, as it was stated in Salt, as it was restated again by this Court in Jefferson Parish, as -- by the Court in Loew's --
04-1329 +++$+++ 16569 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm kind of curious what your answer is to the Chief Justice's question. (Laughter.)
04-1329 +++$+++ 16570 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Do we -- we argue that the rule should continue to be, as it has always been, that when a patent is used to enforce a tie for a requirement -- sorry -- when a patent is used to enforce a tie, that's presumptive evidence of market power.
04-1329 +++$+++ 16571 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but the question is does the presumption make any sense at all outside of the requirements context.
04-1329 +++$+++ 16572 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We -- it -- it's not the law and we don't urge it in any other context. You need not reach, Justice O'Connor, the question of copyrights here. They are not presented. Loew's was a copyright bundling case. This is a patent requirements case, and that's all that's at issue.
04-1329 +++$+++ 16573 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me try this again, and I'm thinking of a way of saying this more clearly. This is my actual dilemma. If I decide this case against you in my view -- and suppose it came out that way -- I would be concerned lest there be a lot of big companies in the technology area that have real market power in tying products and get people -- and they extend that power through a tie into a second market and thereby insulate themselves from attack. I would be afraid of that really happening, and everything gets mixed up in a war of experts in a technology area about do we have the power, don't we have the power, and who knows. If I decide this case in your favor, I would then be afraid that particularly in the patent area, there will be lots of instances where new technology, uncertain technology, uncertain new technology, does not get off the ground because a very easy way to finance the risk through a requirements contract, for example, so that we make the money if the product succeeds, because people buy the required product at a higher price. That will never happen. And patents is an area where new technology is particularly at risk. So I see a problem both ways, and I'm really not certain what to do.
04-1329 +++$+++ 16574 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, you should affirm the court of appeals. (Laughter.)
04-1329 +++$+++ 16575 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The reason is that we've had the patent presumption for 60 years. It is not murky. It is not the least bit murky. Congress is open, willing, and -- and able to change this Court's rulings --
04-1329 +++$+++ 16576 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But why can Congress --
04-1329 +++$+++ 16577 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, didn't they do that? Didn't they do that in the Patent Misuse Reform Act?
04-1329 +++$+++ 16578 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They -- they did not. They did not, Mr. Chief Justice. The Patent Misuse Reform Act of 1988 eliminated a market power presumption as a patent misuse defense to an infringement action -- in -- in a patent misuse defense to an infringement action. But Congress declined to remove the presumption from the antitrust laws. And while congressional inaction might not always be a good guide to what Congress is thinking, here the Senate actually placed legislation in the -- in the bill that was sent to the House to remove the presumption from the antitrust laws as well, and the House took it out and the Senate acquiesced.
04-1329 +++$+++ 16579 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But isn't it logically inconsistent for Congress --
04-1329 +++$+++ 16580 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not at --
04-1329 +++$+++ 16581 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- to say that a patent is insufficient evidence of market power in the misuse context and then just turn around and say, but if you're having a straight lawsuit under antitrust, it is sufficient as a presumption?
04-1329 +++$+++ 16582 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not inconsistent, Your Honor, at all because the patent misuse context lacks the other screens that are present here, the other screens that are present here from the other elements, and the affirmative defenses, like the business justification defense in Jerrold Electronics, like the business justification defense in Microsoft. The -- the other --
04-1329 +++$+++ 16583 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it gets back to how important you think and how -- whether it's true or not that the market power is the heavy lifting, as far as all these screens go.
04-1329 +++$+++ 16584 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. We believe that if -- the narrowness of the presumption here is we're only talking about patent cases, not copyright cases. We're only talking about one element of four. The plaintiff still bears the burden on substantial effect on commerce, separate products, and forcing. There is still affirmative defenses available to the plaintiff. In your case --
04-1329 +++$+++ 16585 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I mean, once you start that, then you're saying that -- which I thought was the -- I would have agreed with the dissent -- the concurrence in -- in Jefferson Parish, but that's not the law. And so now what you're saying is, well, we have to go and really make that the law.
04-1329 +++$+++ 16586 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no, not --
04-1329 +++$+++ 16587 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you're going to give me -- if you're going -- well.
04-1329 +++$+++ 16588 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, with respect to your concerns about stopping innovation, there's no reason to think that the presumption of market power in a patent tying case has had the slightest adverse effect on the important new technological developments you've described. To the contrary, patents have increased exponentially in the 20 years since Jefferson Parish restated the presumption of market power in -- in a patent case. So the -- the fears about innovation have -- the burden is on the petitioners and the Government to show that a 60-year-old rule, settled precedent of this Court, in a statutory case in which Congress is free to overrule it and which it hasn't --
04-1329 +++$+++ 16589 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I just ask your point on that? You are giving -- your main argument is there are good reasons to retain this presumption. But then you said even if there aren't, leave it to Congress. The Court created this rule, the market power rule, not Congress. Why, when we're dealing with a Court-created rule, should we say, well, the Court has had it in play for 60 years, so it's the legislature's job to fix it up, instead of the Court correcting its own erroneous way?
04-1329 +++$+++ 16590 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, the presumption here arises in a very special statutory context. The Clayton Act was passed in 1914 in response to a decision of this Court which Congress viewed as erroneously upholding a patent tie just like the one here. A.B. Dick wanted to sell you its mimeograph machine only if you bought its fluid and stencil paper in perpetuity from A.B. Dick. It was Congress' dissatisfaction with permitting such a -- the anticompetitive effects of such a patent requirements tie that led to the passage of the Clayton Act. And so the presumption of stare decisis with respect to this Court's rules to effectuate the anti-tying goals of the Clayton Act is accorded -- should be accorded more weight than just ordinary common law --
04-1329 +++$+++ 16591 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ As I remember the text of section 3, it applies to other products patented or unpatented.
04-1329 +++$+++ 16592 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does. It does, indeed, Justice Stevens. It eliminated a patent exemption from the antitrust laws. But we're not suggesting that patented and unpatented products are -- are different with respect to the showing of market power. Both have to be shown to have market power when they're used to effect a tie. We're simply arguing that when the -- when a patent is used to force the tie, it makes sense -- it makes good economic sense today, as it did in 1914, and in all the cases that led up to International Salt -- to assume that it's only through market power that the patent is able to effect -- effectuate the tie. Patents are intended to confer market power. They do in a small set of cases. Professor Scherer, whose amicus brief supports the presumption, has demonstrated that there's an innovation lottery in which only some patents are successful, but those that are successful are highly successful, highly valuable.
04-1329 +++$+++ 16593 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We're not even sure, are we, Ms. Sullivan, that -- that you can extend, assuming that there is market power in the patent -- we're not really sure that you can extend it through tying. I mean, there's -- there's dispute among the economists even on that question.
04-1329 +++$+++ 16594 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, the -- the economic theories that focus on the relevant pool, which is patents that have sufficiently high value to be used to enforce a tie, is unanimously on our side that there's no procompetitive value, that there are anticompetitive effects.
04-1329 +++$+++ 16595 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There are no -- I thought we were just talking about several.
04-1329 +++$+++ 16596 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- they're focusing on the pool. Petitioners and the Government have cited a number of economists who talk about price discrimination in the abstract. We're not talking here about senior citizen discounts at the movies. We're talking about price discrimination with respect to a tying market, in which, by the way, the dangers of shrouding information to the consumer are demonstrated by this case. The -- the petitioners --
04-1329 +++$+++ 16597 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Price discrimination, I gather, sometimes good, sometimes not. If it pushes out sales --
04-1329 +++$+++ 16598 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the --
04-1329 +++$+++ 16599 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- on the low side, it's good. If it just extracts profits on the high side, it's bad.
04-1329 +++$+++ 16600 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It --
04-1329 +++$+++ 16601 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so I think most economists -- in fact, everyone I've ever read agrees with that.
04-1329 +++$+++ 16602 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Most -- the majority view is that price discrimination does reflect market power, that you can't discriminate without it, and that's reflected in Judge Posner's recent decisions, for example. So if they're -- if they're using metering here to price discriminate, all the more reason for you to uphold the presumption here because the metering is being used to price discriminate the very thing that shows there's market power. But if -- to go back to Justice Stevens' point about whether metering can ever be a good way for the monopolist to take his profit on the ink, rather than on the printhead, there's very good reason to think it's bad, inefficient, and certainly bad for consumers for the monopolist to take his profit on the ink rather than on the printhead because the consumer can't make, as this Court pointed out in Eastman Kodak, a good judgment at the beginning of how much ink he's going to need for the life of the product and what it's going to cost. And in this case, petitioners did everything possible to keep its -- its customers from knowing what the ink would cost over its lifetime. On page 396 of the appendix, you'll see the customers complaining in petitioners' own survey that they couldn't get the ink consumption rates out of Trident. This is a case in which, if you shroud to the consumer the true life cycle cost of using the printhead with the ink need -- needed to run it, you're going to create lots of inefficiencies in the market. You're going to create, first of all, the inefficiencies of enforcing the tie. You're going to create the inefficiencies and social costs of creating alternative routes when the customers seek to go elsewhere. Think of chop shops for auto parts.
04-1329 +++$+++ 16603 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, one of the interesting aspects of this kind of discrimination is the victim of the discrimination is the more powerful buyer in these cases.
04-1329 +++$+++ 16604 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we would argue that the presumption makes sense no matter whether the patentee is a big or a small company, and the reason is, to go back to Justice Scalia's question, that the -- the patentee will always have better information about the market for the tying product. Here, Trident is the expert in printheads. Independent Ink, the plaintiff, doesn't know about printheads. It knows about ink. For Independent Ink to try to show that there are no reasonable substitutes for the printhead is a very arduous burden to place on Independent Ink, whereas it's a very sensible burden to place on the defendant to say, show us that there are reasonable, noninfringing substitutes for your printhead.
04-1329 +++$+++ 16605 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You could probably say that in every -- in -- in every antitrust case where -- where the defendant is -- is alleging a -- a monopoly on the part of the plaintiff. It's almost always the case that the plaintiff knows -- knows more about his business than the defendant does. It's not distinctive here, it seems to me.
04-1329 +++$+++ 16606 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, we argue simply that it's fair to shift the burden to the defendant. Remember, this is a narrow presumption. It's not a per se invalidity rule. It's just a rebuttable presumption.
04-1329 +++$+++ 16607 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But isn't -- it's in fact easier for you here. You can go down to the Patent Office and see what they've distinguished as -- the sense in which their product is an innovation and why it's not just like the other products that might be available that you could use.
04-1329 +++$+++ 16608 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Mr. Chief Justice. But it is harder for us to find out what new competitors have come into the tying product market in the meantime, and it is easier for defendants to prove the affirmative, that there is a reasonable substitute. Of course, in their own promotions and advertising, they said that nothing else is as good as their printer. But it's reasonable to ask them to prove that there is a reasonable substitute. It's far harder to ask the plaintiff to prove that there's no reasonable substitute because we don't have access to the information about their competitors that they could be expected to keep as a matter of ordinary business records. But, Justice Ginsburg, to return to your point, if there's any doubt about whether metering can ever be efficient, if there's any doubt about whether there could be a procompetitive reason for a requirements tie, evidence that has utterly been failed to be presented here, where there's no economist brief on their side and several economist briefs on our side by very distinguished economists cited by the other side, if there is any doubt about that kind of economic wisdom, then indeed it should be decided by Congress. It's a matter of economic policy to be decided by Congress. Congress has not only failed to reform the antitrust laws in 1988, when it looked at a bill that the Senate had written and the House rejected it, it's failed five times since then to reject this presumption. So there's nothing murky about the presumption. It's still the law. If petitioners really believe they can come forward with an economic record they haven't come forward with so far, Congress is open and able to correct it. But when this Court has guided plaintiffs and defendants for 60 years with a presumption that still makes good economic sense -- and Justice Stevens, if there were anything to the metering argument, why wouldn't Trident simply put a counting chip in the printhead and say we're going to charge you a per-use fee? Every time you put a bar code on a carton, you pay us a royalty. That would be the way to have metering and to capture the monopoly profit through the ink market without all the inefficiencies that come with tying the -- the sales of ink, keeping other rivals out of the ink market --
04-1329 +++$+++ 16609 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I suppose you can do that under modern computer technology. You couldn't have done it 20 years ago.
04-1329 +++$+++ 16610 +++$+++ TRUE +++$+++ MS. SULLIVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, that's correct. Had -- had that technology existed in 1984, maybe Jefferson Parish might have mentioned it. But it's certainly the case that today there's no reason for -- to get the efficiency gains from metering through tying arrangements. Tying arrangements are a very inefficient way of getting the efficiency gains from metering when there is this completely transparent alternative. Trident might not want to tell people what it's really costing them to put a bar code on a carton because if you tell the consumer, they might defect. But it -- the -- the metering argument is satisfied by a transparent use of counting technology today. So there's no procompetitive reason here. This is not a bundle. This is not a case where, as the concurring opinion in Jefferson Parish suggested, there might be very sensible ways to see efficiencies in a bundle where I buy two products at the same time, an air -- a car that comes with tires and an air conditioner. But it's quite a different matter because the cost savings from that accrue to the consumer. There are efficiencies that can be passed on to the consumer by bundling two products that can be simultaneously purchased and consumed together. But this is a requirements tie case. There's no efficiency that's been demonstrated in selling the car but requiring you to buy gasoline from the car manufacturer for the rest of the life of the car, long after any patents exist. And in the absence of that kind of evidence, there's no reason to overrule a sensible rule that does not just date to Loew's, as Mr. Hungar incorrectly suggested. It dates back to Salt, to 1947 for arguments in our -- we've argued in our brief that Salt had to depend on the presumption. And the Court was -- with respect to the petitioners' argument that the Court didn't know what it was doing when it decided those cases, we respectfully disagree. The Court was well aware, as it indicated 2 years later in Standard Stations that there might be some substitutes for a patented product, and it reaffirmed the -- the presumption anyway. The presumption makes good economic sense. It makes good litigation sense. And -- and as an alternative to the argument that you should affirm the Federal Circuit on the presumption, we respectfully suggest that there's -- there was direct evidence of market power here, the supracompetitive prices charged on ink to both the original equipment manufacturers and the end users, the customer dissatisfaction displayed in the petitioners' own customer surveys in the joint appendix at 393. But, Mr. Chief Justice, that is the unusual case. It won't be every case in which a defendant is so imprudent as to create a -- a record of its own anticompetitive effects on its tying -- on its tied product requirements market. And in the other cases, it would be a -- there's danger, Justice Breyer, that -- there's been no harm to innovation shown here. The presumption has been in effect for 60 years, but there could be grave danger to this Court lifting it. There may be many meritorious anticompetition cases screened out by that rule. So we respectfully urge you affirm the Federal Circuit. Thank you.
04-1329 +++$+++ 16611 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Sullivan. Mr. Pincus, you have 2-and-a-half minutes remaining.
04-1329 +++$+++ 16613 +++$+++ FALSE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. Just a few points. With respect to respondent's last argument about affirming on the basis of direct evidence, that's an argument that the district court found to have been waived. On page 30a of the joint -- of the appendix to the petition, the court noted that the plaintiff prefers no direct evidence of market power, such as supracompetitive prices. And in fact, the price evidence that they rely on here was not even cited or attached to the summary judgment motions on the market power issue. Respondent's argument is a little peculiar. It -- it basically is because we can't establish a procompetitive justification for this particular tie, the presumption should be upheld. Of course, the issue in the district court wasn't whether or not this tie was procompetitive, so we didn't introduce evidence about whether or not the tie was procompetitive. We introduced evidence about market power because the issue was market power. I think respondent is putting the cart before the horse here in that respect. And there is no consensus of economists. And we discuss this on pages 11 to 13 of our reply brief, that respondent's syllogism of metering equals requirements tie equals proof of market power. Each of those three things are wrong. There are procompetitive justifications for metering. Metering and price discrimination is not evidence of -- of market power of the type that the Court required in Jefferson Parish. It's evidence of some modicum of market power, but not enough market power to meet the tying requirement. And -- and I -- that's very clear from the economic literature. And there are other justifications that are advanced. In this case preservation of quality was advanced as a justification. But that's why the market power issue is so important. It is the principal screen that -- that the lower courts used. Respondent mentioned no proof of frivolous litigation. On page 13 of the petition, we cite a number -- page 23 of the petition. I'm sorry. We cite a number of lower court decisions granting summary judgment for defendants in cases where, once the presumption fell out of the case, there was no proof of market power. So there is quite a record here of this presumption -- attempts to misuse this presumption. Respondent also talks about -- frames the presumption as patents used to enforce a tie, as if the presumption required some causal connection between the patent and the tie. It doesn't. All the presumption requires is that the tying product be patented. It doesn't require anything about --
04-1329 +++$+++ 16614 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Pincus.
04-1329 +++$+++ 16615 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-1329 +++$+++ 16616 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The case is submitted.
04-1332 +++$+++ 16620 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first in Will v. Hallock. Mr. Hallward-Driemeier.
04-1332 +++$+++ 16622 +++$+++ FALSE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: In enacting the Federal Tort Claims Act, Congress recognized that suits against Federal employees, based upon their official conduct, constituted a very real attack upon the morale of the Civil Service. Congress addressed that concern in two ways. First, it allowed plaintiffs to sue the United States directly, but secondly and importantly, it provided that a plaintiff who took up that opportunity, the judgment in the suit against the United States would constitute a complete bar to any action against the employee.
04-1332 +++$+++ 16623 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And in enacting section 1291, Congress specified that only final decisions would be appealable.
04-1332 +++$+++ 16624 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Your Honor, and this Court has adopted a practical rather than technical construction of that statute. And the Court has recognized in -- in numerous cases that claims of official immunity are -- warrant immediate appellate review because they can only be effectively vindicated by review at the motion to dismiss stage. And -- and that is the kind of protection that section 2676 provides. It establishes that the judgment in the suit against the United States shall be a complete bar against any action against the employee. So it's the action itself that is precluded, and it is precluded completely. And that --
04-1332 +++$+++ 16625 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you can -- you can say the same thing of -- of res judicata, that there is a complete bar. I guess my concern here is that this seems to be, with respect to the employee, something much closer to a res judicata case than to an immunity per se case.
04-1332 +++$+++ 16626 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, the -- the Court recognized in the Digital Equipment case that even a claim of res judicata could correctly be characterized as a right to be free from suit, but it said that that wasn't enough. One had to look at the importance of the -- of the value protected, and the --
04-1332 +++$+++ 16627 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Digital I remember.
04-1332 +++$+++ 16628 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and the Court --
04-1332 +++$+++ 16629 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So do I. (Laughter.)
04-1332 +++$+++ 16630 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sure you do. And the Court has recognized in any number of cases that claims of official immunity are the kind that present sufficiently important public interests to warrant an exception to the -- the otherwise rule that appeals can only be had at the final judgment.
04-1332 +++$+++ 16631 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But in Digital Equipment, I think that we said that the collateral order doctrine is narrow, it should stay that way, and that we should give it -- we should be very reluctant to expand the practical construction of section 1291. And this certainly would be an expansion, would it not?
04-1332 +++$+++ 16632 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think so, Your Honor, because this is like the other claims of immunity that the Court has recognized warrant collateral appeal in Mitchell v. Forsyth or Nixon v. Fitzgerald. It's a kind of official --
04-1332 +++$+++ 16633 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's certainly broader -- it's certainly broader than res judicata anyway, isn't it? Because if the Government -- suit against the Government is dismissed on jurisdictional grounds, what would be res judicata is only the jurisdictional question, and -- and this doesn't -- this goes beyond that, doesn't it?
04-1332 +++$+++ 16634 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Your Honor. We point out any number of ways in which section 2676 confers an immunity on employees that is broader than the traditional common law rule of res judicata. For example, res judicata would not bar a suit against another party that could not have been joined in the first suit, but by its plain terms, section 2676 would bar such a claim. Likewise, common law res judicata would not bar a second suit to -- to recover a kind of damages that were unavailable in the first, but whereas punitive damages are unavailable in a suit against the United States, section 2676 would plainly bar a second suit against the employee to cover punitive damages.
04-1332 +++$+++ 16635 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I'm -- I'm assuming that it's not res judicata in -- in the narrow sense of the doctrine, but it's -- it's still a bar that depends upon a -- a prior judgment. And in that respect, it's sort of res judicata-like. Conversely, there is -- there is no immunity in the first instance conferred directly on the employee as such. And so that's -- that's why I -- it seems to me that there's an argument that this is a lot closer to res judicata than it is to classic immunity.
04-1332 +++$+++ 16636 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, certainly there is no categorical rule that claims in the nature of claim preclusion are not eligible for immediate appeal under collateral order. In Abney v. United States, for example, the Court upheld immediate appeal of the denial of a -- of a double jeopardy claim, which likewise depends upon the existence of a prior action.
04-1332 +++$+++ 16637 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But a double jeopardy claim is -- is a claim in which there is an -- a -- an immunity textually conferred by the -- the Constitution, or at least, we -- we have thought it -- the guarantee does not make an awful lot of practical sense, unless you read it that way. You don't have that -- that situation here.
04-1332 +++$+++ 16638 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the Constitution does not use the word immunity, nor does the Westfall Act use the word immunity.
04-1332 +++$+++ 16639 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And there is -- in fact, there's no immunity. That's what makes this different. Suppose the Bivens action had been brought first. The officers would not have been immune from suit. It's not like an officer who has qualified immunity and doesn't depend upon the suit order. Here, there would have been no immunity at all if you'd sued the officers directly and not brought that Federal Tort Claims Act suit first.
04-1332 +++$+++ 16640 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. Like the claim of double jeopardy in Abney, the claim of immunity here depends upon the existence of a prior litigation, but as in Abney, the -- the interests that it protects are the interests to be free from the -- the cost burdens distraction of litigation.
04-1332 +++$+++ 16641 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I -- I take it Justice Ginsburg's point -- and it's my concern as well -- is that if the Bivens action is brought first, there's no protection of the Government against multiple actions. So -- so the policy that you're arguing for just is dependent on which suit happens to be brought first.
04-1332 +++$+++ 16642 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'm not sure that --
04-1332 +++$+++ 16643 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And that's not -- that's not a very strong policy interest to vindicate by expanding the collateral order doctrine.
04-1332 +++$+++ 16644 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it -- it's -- it's not entirely clear that the United States would be subject to a second suit. It -- the -- the susceptibility of the United States to a further suit would be governed by collateral --
04-1332 +++$+++ 16645 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it depends on -- it depends on -- on how the case was resolved.
04-1332 +++$+++ 16646 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's -- that's right. But -- but what's important here is that the interest protected is the interest of the employee against the -- the distraction -- against the attack on morale. That was the language that the Assistant Attorney General used.
04-1332 +++$+++ 16647 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's hard to accept that argument given that if the lawyer had sued in the reverse order, there would be the same morale. All the rest would follow. So here it's -- it's a question of the lawyer brought the wrong lawsuit first, and the attack on the morale -- there's no difference if a Bivens action had been brought and no other action. Is there any -- why is this morale changed by the Government having gotten the first case dismissed for lack of subject matter jurisdiction with no consideration of the merits at all?
04-1332 +++$+++ 16648 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, the -- the statute protects against the -- the cost of repetitive litigation, the harassment of the employee of multiple suits. These are the exact same types of interest that the Court has recognized --
04-1332 +++$+++ 16649 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What was the harassment that this employee experienced in the -- in the FTCA claim that was dismissed?
04-1332 +++$+++ 16650 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- well, in this particular FTCA claim, there -- there was no discovery. But as we point out in -- in our brief, FTCA cases, even those dismissed on the basis of the 2680 exceptions, are often resolved only after years of litigation, including often trial. So -- so the harassment is -- is the same. On -- on respondents' view, the judgment bar would not kick in. For example, in a case like Varig Airlines, where this Court upheld the Government's assertion of the -- the discretionary function exception only after 8 years of litigation when the case had been -- gone to the Ninth Circuit two times where there had been a trial and final judgment and --
04-1332 +++$+++ 16651 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did that -- did that involve the employee or it was just legal argument involving lawyers representing the United States?
04-1332 +++$+++ 16652 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would certainly involve the employee. Any trial would -- would inevitably involve the employee in discovery, in -- in appearing at trial as a witness. The -- the Government also is protected by section 2676, as the Assistant Attorney General said. The -- the burden on the Government, because the Government is often called upon to defend employees against suit -- and -- and the Government, having litigated once and obtained a judgment in the first FTCA suit, should not be forced to expend all those resources again in a second suit, this time styled as one against the employee.
04-1332 +++$+++ 16653 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Counsel, can I ask you sort of a basic question that I don't really think is adequately addressed in the briefs? You contend, as I understand it, that the exception in 2680(c) covers this case.
04-1332 +++$+++ 16654 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1332 +++$+++ 16655 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And 2680 -- the introductory language of 2680 is the provisions of this chapter shall not apply to such cases. And is it not true that 2676 is in this chapter, and does it not, therefore, follow that 2676 does not apply to this case?
04-1332 +++$+++ 16656 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ 2676 makes the -- the scope of its application turn on whether there has been a judgment and an action under section 1346(b).
04-1332 +++$+++ 16657 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But my first question is how does 2676 apply if it's in the chapter that 2680 says shall not apply to -- to things in the exception?
04-1332 +++$+++ 16658 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, the -- that view of the language, shall not apply, would be inconsistent with this Court's decisions both in United States v. Smith and in FDIC v. Meyer. In United States v. Smith, for example, the plaintiffs had made exactly that argument with respect to shall not apply. They said that -- that 1346 shall not apply to an action that arises in a foreign country. Therefore, section 1346 cannot provide the remedy to which we are supposed to be limited. And the Court rejected precisely that argument.
04-1332 +++$+++ 16659 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But they held that the -- the action simply didn't apply in -- in that case. There was no -- there was no recovery under the -- basically it held the foreign -- foreign country exception precluded the statute from applying --
04-1332 +++$+++ 16660 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what they --
04-1332 +++$+++ 16661 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- which is what also happens here.
04-1332 +++$+++ 16662 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, take another example why -- why you couldn't read the -- the shall not apply language in that way. The first exclusivity provision of section 2679(a) with respect to sue and be sued agencies -- if you said that 1346(b) shall not apply to a suit against the Postal Service because the suits against the Postal Service regarding miscarriage of letters is excluded from 1346(b) by that same language, shall not apply, well, that would render the Postal Service exception meaningless and you would sue the -- the Postal Service pursuant to its sue and be sued authority instead of suing the United States under 1346(b).
04-1332 +++$+++ 16663 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Go -- go through that again, would you?
04-1332 +++$+++ 16664 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the -- 2679(a) says that the authority of an agency to sue and be sued in its own name shall not extend to claims cognizable under section 1346(b). The argument might be made, with respect to a suit against the Postal Service for miscarriage of the mail, that -- that claim is not cognizable under section 1346(b) because section 2680(b) says that 1346(b) shall not apply to claims relating to the miscarriage of mail. So by the same reading of shall not apply, one would come to the conclusion that -- that the claim relating to the miscarriage of mail is not cognizable under 1346(b), and therefore you sue the -- the Postal Service.
04-1332 +++$+++ 16665 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. It only says it shall not apply if it comes within the exception.
04-1332 +++$+++ 16666 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and a -- a claim with respect to the miscarriage of mail is one that comes within the exception. And so that reading of shall not apply has been rejected by the Court in Smith v. United States, likewise is inconsistent with the Court's decision, FDIC v. Meyer, and would render it simply ridiculous with respect to claims against the Postal Service.
04-1332 +++$+++ 16667 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I guess it's true, is it -- I'm testing my own understanding of this -- that if, in fact, shall not apply meant anything in that chapter, if you had a State and that State gave a State law remedy for, say, detaining property or for loss of mail or something, then that State law remedy would continue in existence because the thing in the law that sets aside that State court remedy is a different part of the same chapter --
04-1332 +++$+++ 16668 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
04-1332 +++$+++ 16669 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in 2679(b)?
04-1332 +++$+++ 16670 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. And -- and --
04-1332 +++$+++ 16671 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the whole point of the Westfall Act is to get rid of those State causes of action.
04-1332 +++$+++ 16672 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly, and in that sense, that reading of shall not apply is simply inconsistent with the Court's holding in United States v. Smith.
04-1332 +++$+++ 16673 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the language does seem to say it.
04-1332 +++$+++ 16674 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think what it -- what it means is that -- what it -- what it has been understood to mean is that the United States' waiver of sovereign immunity. It -- the United States has not subjected itself to liability on claims of the nature of those exceptions. And that's how the Court has described it in any number of cases, that the exceptions in 2680 mark the limits of the extent to which the United States --
04-1332 +++$+++ 16675 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Well, then -- then to get to the main point here, if we are going to get to that, the question that I would have for you is -- is the following. If we accept your interpretation, it's pretty anomalous. I mean, someone who brings his Bivens action first, of course, can sue the individual employee, and you agree to that. But if he brings his Bivens action second, because he made a mistake and went into the wrong court or he brought the wrong action or it was a borderline case, frankly, and he didn't know how it would end up, that person is out of luck. Now, there's nothing in this statute that says that the Government -- that the Congress wanted to achieve that result. What order you bring the suit in shouldn't really make any difference here. The Bivens action is totally different from all the other tort actions in that respect, and it's listed separately in 2679 to make clear that it isn't -- it is different. So why? I mean, why read it your way? The burden that reading it their way would impose on the Government is minuscule. The number of such suits is tiny, I would imagine. All right. Now, what is wrong with my question?
04-1332 +++$+++ 16676 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there --
04-1332 +++$+++ 16677 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ A lot of things.
04-1332 +++$+++ 16678 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- there are any number of things wrong in our view. First, Congress has, as Your Honor recognized, created an express exception for Bivens claims in 2679(b), but it has created no similar exception to -- to 2676 even though prior to passage of the Westfall Act, any number of courts of appeals had construed 2676 to apply to Bivens claims. Further, as respondents recognize, 2676's application at this point is virtually limited because of the Westfall Act to a second case that raises a Bivens claim. So their --
04-1332 +++$+++ 16679 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Could the two claims have been brought together? This is -- if an employee is in an uncertain situation, doesn't know if the FTCA act applies, it certainly doesn't want to be without any defendant for conduct of the kind that -- that this complaint charges. Could such an employee say I want to bring my Tort Claims Act against the United States, but I'd like to have in that same lawsuit, in case the court says it comes under an exception, my Bivens claim? Would it be possible to bring those suits together?
04-1332 +++$+++ 16680 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, obviously that -- that issue is not presented here because here we have two separate litigation --
04-1332 +++$+++ 16681 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm -- I'm asking --
04-1332 +++$+++ 16682 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
04-1332 +++$+++ 16683 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- does the Government have a position on that, whether you can combine a suit against the United States under the Tort Claims Act with a suit against the individual officers under Bivens.
04-1332 +++$+++ 16684 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- the consistent view of the courts of appeals and district courts over 50 years has been that the judgment bar does have some application even when the claims are litigated simultaneously. For example, it's the universal rule among those courts of appeals that have decided the issue that if the plaintiff obtains a judgment against the United States, that that judgment immediately --
04-1332 +++$+++ 16685 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I want you to go back before we get to a judgment. Can such a suit be brought?
04-1332 +++$+++ 16686 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Can it be brought? It can be brought.
04-1332 +++$+++ 16687 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Could this lawyer have brought the FTCA act complaint and pled in the alternative the Bivens claim?
04-1332 +++$+++ 16688 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it can certainly be brought because the judgment bar only comes into effect when there's been a judgment. So it could be brought. But as I was saying, the -- the courts are unanimous in holding that if both of those claims were to proceed through litigation and to trial and there were to be a judgment in the action under the FTCA against the United States, that that would immediately bar any recovery against the employee. And that's been the view, again, for some 50 years now. So --
04-1332 +++$+++ 16689 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Counsel, what if the first case against the Government were dismissed because of a finding that the employee was acting beyond the scope of his authority? Should that really bar a subsequent action against the employee in an individual capacity?
04-1332 +++$+++ 16690 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in -- in a footnote --
04-1332 +++$+++ 16691 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I read your --
04-1332 +++$+++ 16692 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in our brief we suggest it might not --
04-1332 +++$+++ 16693 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I read footnote 5. You said it didn't. But I don't see how that's consistent with the language of the statute.
04-1332 +++$+++ 16694 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and in fact, in -- in re-reading FDIC v. Meyer in preparation for oral argument, footnote 7 of that decision suggests that that would be a judgment in an action under 1346(b). FDIC v. Meyer was saying that it would, nonetheless, be cognizable under 1346(b) because the allegation was that they were acting within the scope. So -- so perhaps we should not have conceded that. But it could still be that the -- the judgment bar wouldn't apply. It would be an action in -- under -- a judgment in an action under 1346(b), but the judgment bar protects an employee of the Government. And -- and that's a defined term and it's defined in the way that suggests the person acting within the scope of their employment, advancing the purposes of the agency. So there -- there might be a reason why the judgment bar itself would not apply to a claim where the determination was that the person was not acting within the scope of employment.
04-1332 +++$+++ 16695 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Your theory would cover the case where the FTCA claim drops out because the employee didn't file the administrative claim within the -- what is it? 6 months?
04-1332 +++$+++ 16696 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- Your Honor, it would not, I think, cover a claim that -- where the dismissal was curable, where the person could go and exhaust their claim. But the test of whether --
04-1332 +++$+++ 16697 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But don't they have a short span where they have to bring that administrative claim?
04-1332 +++$+++ 16698 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They have -- they have 2 years to bring the administrative claim. They have 6 months to bring the suit in court after the administrative claim has been resolved. And the -- the reason --
04-1332 +++$+++ 16699 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the suit is tossed out because one of those deadlines was met. It would follow, I think, under your reasoning that there could be no subsequent Bivens claim.
04-1332 +++$+++ 16700 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. The -- the statute makes the test whether there has been a judgment in an action under 1346(b), and plainly, under any reading of that language, it means where there is a judgment that finally resolves the liability of the United States under section 1346(b), there has been a judgment in an action under 1346(b). And I don't think that the language is susceptible to any other reading. So if the claim, as Your Honor suggested, finally resolves whether the United States could be liable under section 1346(b), then the judgment bar applies. Unless there are no further questions --
04-1332 +++$+++ 16701 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'd like to pursue the question I asked you earlier because I really didn't fully understand your answer. It seems to me, as I read 2680, it simply says that if one of the exceptions applies, there's no waiver of sovereign immunity, basically. That's what -- what the scope of it is. And therefore, none of the other provisions of -- of this chapter apply, and if none of the provisions of this chapter apply, clearly the judgment bar provision is one of those.
04-1332 +++$+++ 16702 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I think I'm going to borrow Justice Breyer's response because it's -- it's a little clearer than the -- than the point I was trying to make. And that -- by that same logic, that would mean that the provisions of 2679(b) would not apply to the claim, and that is --
04-1332 +++$+++ 16703 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's correct.
04-1332 +++$+++ 16704 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- precisely the question that was addressed in -- in United States v. Smith, and the Court said that -- that it did apply.
04-1332 +++$+++ 16705 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It follows that 2679(b) does not apply, but you're just have -- working on a blank slate with no provision of the Federal Tort Claims Act affecting a waiver of sovereign immunity or imposing any kind of judgment bar.
04-1332 +++$+++ 16706 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But if 2679(b) did not apply, there would be no basis for substituting the United States and having the claim dismissed. And that was precisely the issue that was addressed in -- in United States v. Smith. So -- so plainly you cannot read it to mean that -- that all of the provisions of the FTCA are simply a nullity or nugatory with respect to such a claim. That -- that -- rather, as Your Honor suggested, what it means is that the United States has not waived its sovereign immunity.
04-1332 +++$+++ 16707 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Correct.
04-1332 +++$+++ 16708 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But in FDIC v. Meyer, the Court was very clear that the FTCA is the kind of case which defines jurisdiction by the scope of the waiver of immunity and to -- the claims to which the United States has rendered itself liable. So -- so all of those issues are interrelated, and -- and it reflects the substantive nature of those exclusions. It could not be --
04-1332 +++$+++ 16709 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you left out one word that I think is important there. To test it to see if I'm right about this is I thought 2679(b) was focusing in large part upon State tort suits. Is that right?
04-1332 +++$+++ 16710 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is true that --
04-1332 +++$+++ 16711 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They wanted to get rid of the State tort suits --
04-1332 +++$+++ 16712 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the --
04-1332 +++$+++ 16713 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in part. Am I right about that or not?
04-1332 +++$+++ 16714 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ 2679(b) applies only to -- to State law causes of action.
04-1332 +++$+++ 16715 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. So, therefore, if in fact we had words mean what they seem to mean, Congress would have both removed the State lawsuits in 2679(b) and reinstated them or set them in the exceptions. But that would have the statute defeat itself, and therefore, that case that you're citing came to a correct result.
04-1332 +++$+++ 16716 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
04-1332 +++$+++ 16717 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's right?
04-1332 +++$+++ 16718 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-1332 +++$+++ 16719 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. Don't tell me it's right if it's not right is all I want --
04-1332 +++$+++ 16720 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, certainly --
04-1332 +++$+++ 16721 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
04-1332 +++$+++ 16722 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- we -- we believe that United States v. Smith was right, and that shall not apply cannot have the meaning that Justice Stevens was trying to attribute to it for that reason. If there are no further questions, I'd like to reserve the balance of my time.
04-1332 +++$+++ 16723 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. Ms. Zieve.
04-1332 +++$+++ 16725 +++$+++ FALSE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: To begin with, the court of appeals did not have jurisdiction under the final judgment rule to review the district court's order. Petitioners do not contest that they could have been sued under Bivens initially or that the Hallocks could have filed simultaneous FTCA claims and Bivens claims. Petitioners' argument is that they cannot now be sued only because the Hallocks first filed a different suit against the United States. That situation, which hinges on the sequence of lawsuits, does not describe an immunity or a right not to stand trial. Petitioners try hard to paint the purpose of the judgment bar as the same as the purpose of qualified immunity, avoiding distraction and inhibition of Federal employees from their work. But --
04-1332 +++$+++ 16726 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what -- what significance do you give to the word to complete, as to whether it's a complete bar? Doesn't that indicate that the -- the statute is -- is a bar to all -- all further actions after a judgment?
04-1332 +++$+++ 16727 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think complete bar means anything more than bar. Res judicata is a complete bar and a statute of limitations is a complete bar. And I -- I think the statute would mean the same thing without that word. And there's --
04-1332 +++$+++ 16728 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, not -- there -- there are exceptions to the statute of limitations. You could have tolling, and there are exceptions to a preclusion doctrine. So those doctrines aren't complete in the sense that they are without exceptions.
04-1332 +++$+++ 16729 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, but when -- when the bar applies, it's -- it's an absolute bar. I don't -- I agree that if the bar has been triggered, it is a -- it completely precludes any further action on any claims, but I don't think the word complete gives us much guidance about when the bar is triggered. And the purpose behind the bar generally is not the same as the purpose of qualified immunity because although the FTCA, in general, and the legislative history of the FTCA indicates that the act as a whole was intended to protect employee morale and distraction from employment, that's not the purpose behind the judgment bar. And the judgment bar would be a poor vehicle for accomplishing that purpose since it allows not only a Bivens suit as an initial matter and, when it was enacted, allowed -- still allowed employees to be sued for State torts, but also would allow two suits, as long as the Bivens suit were litigated before.
04-1332 +++$+++ 16730 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but that -- that -- see, that's what's -- I'm not at all certain about this, whether they have an appeal, whether they don't have an appeal. I'm testing it out. But it seems to me if we take your position, we're going to make things awfully complicated. That is, the -- the basic idea here is in the vast mine run of employee suits, go sue the Government, and you can't sue the employee at all. That's true of the State actions. That's true of ordinary tort actions. And so ordinarily, if you sued the -- the employee, whether you sued him first, second, or third, you're not supposed to and he ought to have an appeal right away to get you out of court. Now, there is an exception there with the Bivens because you can bring your suit first and then there's no problem. But if we make an exception in the appealability rule for that, people are going to get mixed up. It's a kind of curlicue, and even in the Bivens case, it has a basic objective of trying to prevent people from harassing the employee because the instances in which you bring a Bivens suit first, as a practical matter, are probably small. Now, what's the response to that? I'm just nervous about making these collateral rules so complicated as to whether -- you'd have to do it whether it's a Bivens suit or some other kind of suit under this, and nobody is going to understand it.
04-1332 +++$+++ 16731 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1332 +++$+++ 16732 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So put in --
04-1332 +++$+++ 16733 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't --
04-1332 +++$+++ 16734 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- put them in the whole bag. Say give the employee his appeal because most of the time it's totally to help him from being harassed. Now, what's the answer to that? And I'm not -- I'm putting it because I want to get your answer.
04-1332 +++$+++ 16735 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, a couple things. First of all, the -- the bar to State law tort suits is in 2679(b), which was passed in 1988, 42 years after the judgment bar and the -- and the bulk of FTCA. It was passed as an express effort to overturn this Court's decision in Westfall, which held that employees did not have immunity from State law -- certain State law torts. And in the findings that are incorporated into section 2 of the statute, Congress specifically called 2679(b) an immunity provision, and this Court has since recognized that, for instance, in Gutierrez de Martinez. There is no comparable legislative history indicating immunity for -- for -- under 2676. So I -- I don't think it's that complicated to figure out now whether someone is proceeding -- whether the claim arises -- whether the claim to appealability, whether the defense arises under 2679(b) or under the judgment bar because they just really get at very different things. And the courts haven't shown -- there's not a lot of case law in either direction, but the -- the courts haven't exhibited much confusion about that. The other thing is that when you're -- when you're construing the scope of the judgment bar, it's important to remember that this was passed in 1946, and it was intended -- at that time some 25 years -- 35 years before Bivens, what the -- what Congress was getting at was State law suits against the employees versus State law suits against the United States. And the effort was to shift the liability to the United States. That effort to shift liability, yes, was for morale, to protect employees from being distracted, but that -- that was, again, the purpose of the shift of liability, the waiver of sovereign immunity in general. The only real explanation of the judgment bar appears in the background of where the drafters explained that the bar is intended to -- as a bar to -- bar to further suit not only against the Government, as would have been true under the prior bill. This is around page 14 of my brief, the quote from -- from the 1945 report. Not -- a bar to liability not only against the Government, as would have been true under the prior version, but also against the employee. And there was no bar to suit in the prior version of the bill. So the drafters' explanation could only have been referring to the normal operation of res judicata. And this Court has used res judicata in Digital as sort of the quintessential example of a defense that is not subject to immediate appeal.
04-1332 +++$+++ 16736 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your rule would be this. It's such a complicated area. I'm sorry. But if a plaintiff brings a lawsuit, tort suit, against a Government employee and the Westfall Act bars the lawsuit, period, you can't sue him at all because of -- of (b). He gets an immediate appeal if the district court doesn't agree.
04-1332 +++$+++ 16737 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
04-1332 +++$+++ 16738 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if under the Westfall Act you could sue him, depending on the order, he doesn't get an appeal.
04-1332 +++$+++ 16739 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right because defense is based on the order of suits. Those are preclusion defenses, and preclusion defenses are not immediately appealable. And, you know, I think this follows from the Court's decision in -- in Irwin that -- that certain defenses that are available to private parties in litigation should also be available, treated the same way, have the same rules when the Government is being sued like a private party.
04-1332 +++$+++ 16740 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what's wrong with the Government's distinction of Digital that here you have a policy embodied in a statute as opposed to a private settlement agreement?
04-1332 +++$+++ 16741 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- Digital explains that if you have a right not to stand trial that is set forth in a statute or constitutional provision, that the court isn't going to second-guess the importance of that right. It's -- it's unclear whether the importance prong of the collateral order test should be part of -- part of that effective reviewability or whether it's part of the second prong about separate from the merits of the case. But in any event, what Digital doesn't say is just because something is in a statute -- a right is in a statute -- it's -- it -- it is correct to characterize it as a right not to stand trial. To the contrary, Digital cautions that anything -- so many defenses could be called rights not to stand trial, and so the court will look -- will apply the test very stringently. Statute of limitations, for instance, are in statutes and when the statute has expired, you could say that is a statutory bar to a right to stand trial. But statute of limitations, like the res judicata defense, are just not appealable under the collateral order doctrine.
04-1332 +++$+++ 16742 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I suppose if there was no appellate court jurisdiction, we're not going to resolve the merits of that question.
04-1332 +++$+++ 16743 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. If there's no appellate court jurisdiction, the Court doesn't have to go on to construe the scope of the judgment bar. But --
04-1332 +++$+++ 16744 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you would at the end of the road. If -- if you go to the Bivens claim and if the plaintiffs prevail, you could still appeal from that and say that that suit was barred. It should never have gone forward.
04-1332 +++$+++ 16745 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Justice Ginsburg, and that's exactly why this defense is effectively reviewable after final judgment as opposed to now.
04-1332 +++$+++ 16746 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There's no question that it would be -- it doesn't die if you don't have an interlocutory review. It's there but you've wasted a lot of time going through the whole trial to find out the answer.
04-1332 +++$+++ 16747 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true to this -- just as is true with defenses based on statute of limitations or res judicata or, you know, a whole host of defenses --
04-1332 +++$+++ 16748 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could the district court have certified the question?
04-1332 +++$+++ 16749 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The district court could have certified it and -- and --
04-1332 +++$+++ 16750 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And was there a request made to do that or --
04-1332 +++$+++ 16751 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. The district court denied that.
04-1332 +++$+++ 16752 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but the petitioners requested it. Did -- did you oppose that request below?
04-1332 +++$+++ 16753 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know. I don't remember.
04-1332 +++$+++ 16754 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The district judge said I'm not going to give you 1292(b) certification, but -- but there's Cohen against Beneficial out there. Why don't you try that route? It was the district judge who -- who mentioned that possibility, wasn't it?
04-1332 +++$+++ 16755 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, actually the petitioners filed a notice of appeal before the 1292(b) motion had been decided and then sought a 1292(b) certification. I think they were trying to protect themselves by doing it both ways --
04-1332 +++$+++ 16756 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I think the district -- the district judge was aware of Cohen against Beneficial, and I think referred to it. Maybe I'm -- I don't remember correctly.
04-1332 +++$+++ 16757 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. I -- I thought -- I thought the district court said I'm going to deny the motion to certify because the issue is clear in my view, but if you think you have a collateral order doctrine, then go ahead and take your appeal.
04-1332 +++$+++ 16758 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think he expressed any view about whether the case satisfied the Cohen doctrine.
04-1332 +++$+++ 16759 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but he mentioned that there was -- he mentioned Cohen.
04-1332 +++$+++ 16760 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but he -- he didn't think the issue warranted an immediate appeal. He made that clear by denying the 1292(b) motion. And -- and I think that would have been the -- the appropriate way to appeal would have been 1292(b), and having been denied that route, petitioners should wait till the end of the case because, as you say, this issue will be effectively reviewable at the conclusion of the litigation.
04-1332 +++$+++ 16761 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it -- is it -- maybe this is an incorrect way to look at it, but there is a relationship between the merits and the interlocutory review decision. I would suppose if we agreed on the merits with the Government -- in other words, adopted a fairly clear and categorical rule -- the need for an interlocutory appeal would diminish because the district courts would almost always get it right. But if we adopt a standard for the application of this bar that, you know, depends on a lot of different things, then the appellate court is going to disagree with the district court in a greater number of circumstances, and maybe we should allow an interlocutory review of that.
04-1332 +++$+++ 16762 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Court's cases allowing and disallowing collateral order appeals don't turn on the -- the litigation efficiencies that will be obtained if the court goes forward, but rather on whether the issue or the defense that -- that the petitioner is seeking to appeal actually fits the stringent requirements of the Cohen doctrine. And the Court has, in its more recent cases, cautioned against broadening collateral order appeals and indicated that 1292(b) and the rule's enabling act provisions 2092 that allows a court to identify categories of cases that are appropriate for interlocutory appeal as a categorical matter, but those are the preferred ways to go rather than stretching the final judgment rule really beyond the bounds of its language.
04-1332 +++$+++ 16763 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Perhaps you should go on now to the question, assuming that it is immediately appealable.
04-1332 +++$+++ 16764 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the Court reaches the second question, the res judicata foundation of the bar shows as well why the Second Circuit's decision on the substantive question should be affirmed. The -- the text -- the language of the text uses classic res judicata terminology, judgment and bar, and the historical context of the statute makes that reading by far the most reasonable. The -- when the act was passed in -- in 1946, until then, Federal employees had been sued for State law torts, the biggest category of cases involving auto accidents with postal workers. And Congress set about trying to waive sovereign immunity so that the Government could step in to defend the suits and be sued in their place, which it thought was fair and would help morale. And so that plaintiffs would no longer have to seek private bills in Congress, which was considered a -- a burden. When the -- when the -- the FTCA allows the United States to stand in the shoes of the employee for purposes of a State law tort suit. And then the judgment bar extends to the employee the preclusion benefit of that suit so that the employee gets the same res judicata effect that he would have had absent the shift of -- of the defense to the Government. The -- again, the -- the one clear explanation in the background for why the judgment -- what the judgment bar does is that it -- it applies to the employee the same bar that would have applied to the Government under -- under prior bills which, again, was only the bar of res judicata. Because res --
04-1332 +++$+++ 16765 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did you -- did you make the argument or the point that Justice Stevens articulated earlier about the -- the provisions of this chapter not applying and that including 2676?
04-1332 +++$+++ 16766 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, we didn't make it, and --
04-1332 +++$+++ 16767 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does it sound good or bad to you now? (Laughter.)
04-1332 +++$+++ 16768 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We did make a similar argument that 2680 states that 1346(b) shall not apply and because the judgment bar only applies to actions under 1346(b), it's something of a contradiction to say that an action that -- to which 1346(b) shall not apply at the same time an action under 1346(b). As for Justice Stevens' broader argument that -- that chapter -- chapter 171, which is the rest of the FTCA, other than -- than 1346(b), shall not -- shall not apply to claims arising from the exceptions, I don't think that Smith, which I think was Mr. Hallward-Driemeier's response -- Smith doesn't really provide a full answer to why that argument might be wrong because Smith really -- Smith did say that an action that -- an action to which the chapter does not apply at the same time can be one to which the exclusive remedy provision has been applied. But one difference is the -- the order in which those things happened. First, you would get the 2679(b) exclusive remedy provision invoked before the question of whether 2680 applied would arise. And the other point is that Smith, which construed the exclusive remedy provision to apply even if the exceptions would then preclude a suit entirely, was based on the purpose of the exclusive remedy provision. The legislative history's relatively clear statements that it was intended to provide an immunity from State law tort suits for Federal employees acting within the scope of their employment and looks to two other provisions of 2679, neither of which would come -- have any role here or were even adopted or enacted until 42 years after the judgment bar was enacted.
04-1332 +++$+++ 16769 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't -- I don't understand. If we were to take that, wouldn't we have to overturn Smith? You think not. You just said not. But as I -- then as I understand Smith, we look to (b) and (b) says, plaintiff, you cannot bring an action under anything. Okay? You can't bring a State tort law action. You can't bring an action under Federal law against the employee, with certain exceptions where you can like Bivens and where there's a specific statute. Then we have over here the exceptions section. And over here in the exceptions section, it says there is no Federal action for, among other things, the case in front of us and, among other things, actions in a foreign country. And so the court says, one, this is in a foreign country, so you can't bring it under Federal Tort Claims Act, and now we'll go look to see whether this bar that you can't bring it, period, applies. They say it does apply. Now, Justice Stevens dissented, but he didn't dissent on that ground. And -- and so -- so I don't see how we could reach the result with this other exception without overturning Smith because Smith said (b) does apply. And so if the fact that it falls within an exception means the whole thing doesn't apply, then they would have held (b) doesn't apply. But they said (b) does apply. So how do we get there given Smith?
04-1332 +++$+++ 16770 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, like application of the judgment bar, one distinction would be that it turns on the order in which things occur, and in --
04-1332 +++$+++ 16771 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, that -- that would be to overturn the reasoning of Smith. It would say --
04-1332 +++$+++ 16772 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the reasoning --
04-1332 +++$+++ 16773 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-1332 +++$+++ 16774 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the reasoning of Smith is not based on the language of 2680. The reasoning of Smith is based on the statement of legislative purpose, the background under which 2679(b) was enacted, and based on 2679(b)(2), which has -- stating exceptions, and 2679(d)(4), which has procedures for the United States to certify and step into the shoes of the United States. So --
04-1332 +++$+++ 16775 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, in effect, they didn't -- the Court didn't consider this argument in Smith.
04-1332 +++$+++ 16776 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. What the Court did in Smith -- and I think this applies to much of the Court's jurisprudence to construing the --
04-1332 +++$+++ 16777 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The main holding in Smith was that the foreign country exception applied. That's all they held in Smith, wasn't it?
04-1332 +++$+++ 16778 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. Smith held the foreign country exception applied even though the employee would -- the -- the plaintiff would have no remedy.
04-1332 +++$+++ 16779 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the -- and the -- I don't see how that is at all inconsistent with what I'm suggesting here. I really don't.
04-1332 +++$+++ 16780 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think it's inconsistent. I think one thing that's important is that the Court -- both in that case and in Meyer and in Gutierrez de Martinez, the Court looked at provisions of the FTCA that are not models of clarity and attempted to give a sensible reading, given the -- the purposes that Congress was trying to achieve and the context and structure of the specific provisions.
04-1332 +++$+++ 16781 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, looking at it very broadly, it doesn't seem to me that if the United States did not waive sovereign immunity for a particular category of tort case, that a dismissal of such a tort case should bar an -- an action by an individual against an individual defendant, just looking at it in -- in a global sense. And that's what the plain language of the statute also says. So I don't really see any tension. I -- maybe I'm missing something obvious here.
04-1332 +++$+++ 16782 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree entirely. As the Court said in Meyer, the jurisdiction under the FTCA is defined by the scope of the waiver of sovereign immunity, and without question --
04-1332 +++$+++ 16783 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But we -- this case is about the interpretation of 2676, as we took it. And before your time runs out, if we can get to the nub of your difference, your reading and the Government's, you say judgment in 2676 means judgment on the merits, and the Government says it means any judgment. So to buy your interpretation, we would have to put a caret mark after judgment and put on the merits. But the statute doesn't say on the merits.
04-1332 +++$+++ 16784 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, the statute doesn't say what it means by judgment. And I -- and I don't think judgment has a clear meaning, and that's why it's appropriate to look to the context of the provision, what Congress was trying to achieve in the provision to interpret the scope of the bar and the meaning of -- of that word and all the words together. The -- the purpose of the statute is to shift suits from the employees to the Government, and the background of this specific provision, little as it is, and the comparison in a couple places to this provision discussing a parallel way to the administrative settlement provision -- we think the most sensible reading is that Congress was trying to extend the preclusion effect of the suit against the Government so that although the employee would no longer be sued and would get that benefit in the first instance, if the plaintiff chose to go against the Government first, the employee wouldn't have -- there would be no second suit against the employee for those same State law torts because in -- in 1946, the only torts Congress was considering were State law torts. Am I going to sue the Government for negligence or my mail carrier for negligence? And to -- both for efficiency reasons, to protect the Government, which was concerned about -- about the burden on it of having to go -- to litigate twice, the preclusion effect would be carried to the employee, so that once there was a resolution of the State law torts against the Government, that would be the end of the matter. I think the end of the matter is actually a phrase that the Assistant Attorney General uses in the legislative history.
04-1332 +++$+++ 16785 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is the -- as a practical matter, though, what is the great burden on the plaintiffs in requiring them to sue the individual defendants first if they're concerned about the judgment bar?
04-1332 +++$+++ 16786 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In -- in many cases, if not most cases, an -- a plaintiff won't have both remedies available. So it's only a -- a small universe of cases anyway in which a plaintiff would want to sue in Bivens and sue under the FTCA. But at the beginning of the case, before discovery, when all you've done is file your administrative claim to which, in many cases as in this one, the Government has never even responded, the plaintiffs and the lawyers may have no idea that they actually have a Bivens claim. In this case, when they thought they had one, they filed it. Also, the Government's view in -- in other cases is not that your -- it doesn't help the plaintiffs to sue simultaneously because the Government's position in other cases has been -- and courts have largely agreed -- that once the judgment in the -- on the FTCA claim comes down, the Bivens suit is then precluded, in some cases even if the judgment in the Bivens suit has preceded the judgment in the FTCA suit. So bringing them simultaneously, while in some cases might -- might be feasible and seem like a good idea, is not necessarily going to protect the plaintiffs, given the scope of the Government's arguments.
04-1332 +++$+++ 16787 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you don't -- you don't have to bring them simultaneously. You can bring the individual action first, separately.
04-1332 +++$+++ 16788 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Bring the individual -- bring suit -- the Bivens suit first? If the -- if the statute of limitations work out, you could bring the Bivens suit first, but again, you'd have to --
04-1332 +++$+++ 16789 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ A Bivens suit is pretty hard to prove, a lot harder than proving a case of negligence.
04-1332 +++$+++ 16790 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. And since, either way, you're only going to get one satisfaction for your claim, it seems odd to adopt a construction that encourages plaintiffs to go first after the employees when the purpose of the FTCA was try to encourage plaintiffs to go after the Government instead.
04-1332 +++$+++ 16791 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And plaintiffs, generally, like to sue -- sue solvent defendants too I think. (Laughter.)
04-1332 +++$+++ 16792 +++$+++ TRUE +++$+++ MS. ZIEVE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. And -- and if the Government had responded in this case to the administrative claim in -- in a timely manner or at all, the plaintiffs would have had a better sense of where they stood on the FTCA claim before they filed suit. I'd like to mention, although the Government has sort of retracted it, that footnote 5 of their reply brief concedes that claims wholly outside the purview of the FTCA, to use their phrase -- that judgments based on claims wholly outside the purview of the FTCA do not trigger the judgment bar. Claims based on -- claims that arise under the exceptions of 2680 are surely outside the purview of the FTA -- FTCA. The -- the 1945 committee report, which is the last one before the statute was enacted, actually describes the FTCA 2680 exceptions as excepting certain classes of torts from the grant of the right to sue. Not only does that make clear that they're outside the purview of the FTCA, but that they are matters of subject matter jurisdiction. As this Court has explained in cases like Scarborough and last month in Everhart, subject matter jurisdiction refers to classes of cases that the court has authority to adjudicate. The court -- the district court did not have authority to adjudicate the FTCA claim filed by the Hallocks because it fell within an exception. For that reason, res judicata would not apply. Thank you.
04-1332 +++$+++ 16793 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Hallward-Driemeier, you have 5-and-a-half minutes left.
04-1332 +++$+++ 16795 +++$+++ FALSE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. First, I think it's important to note that respondents concede that the Westfall Act confers a form of official immunity. That statute, like 2676, does not use the word immunity. Rather, it uses the word, any action related to the same subject matter is precluded. And that is virtually indistinguishable from the language of 2676 that -- that establishes a complete bar to any action by reason of the same subject matter. So there is no requirement that Congress invoked particular language to create an immunity. The question is what are the underlying concerns that are protected? And the respondents have admitted that 2676, like the Westfall Act, was intended to protect employee morale against the threat of personal liability when they were acting for the Government, as well as the distraction and cost of defending against suit. This Court, in fact, in Gilman --
04-1332 +++$+++ 16796 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The thing you haven't answered that I think is troubling everybody is why is -- why is that -- I mean, if you could come up with some explanation of why that concern for morale only arises after there has been a -- a judgment in the suit against the Government. Why -- if that were the concern and if the Government wanted total immunity, why wouldn't they have extended it to a -- a 1983 suit brought before the FTCA suit?
04-1332 +++$+++ 16797 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I -- I admit that Congress --
04-1332 +++$+++ 16798 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Give me a good reason for that.
04-1332 +++$+++ 16799 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Congress addressed the -- only part of -- of the problem. But as Justice Stevens recognized, plaintiffs would want to sue the solvent defendant, and that's why the -- making the Government itself subject to suit was part of the deal. And -- and Congress understood that plaintiffs were going to take up that option. And that's why, up until the -- this Court's adoption of Bivens, there were virtually no decisions about 2676 because plaintiffs just didn't try. This Court in Gilman, an early case relating to 2676, recognizes that -- that the statutory provision was intended to address precisely these types of concerns, morale of employees, the same concerns that have led this Court and Congress in other contexts to recognize other forms of -- of official immunity. And this one is equally subject to immediate review. Respondents suggest, considering for a moment, what Congress would have expected in 1946 when it initially enacted this, and -- and I think that that is helpful. There is -- it is quite clear 2676 is explicit, that Congress did not expect the end of the litigation against the United States under the FTCA to mark the beginning of the litigation against the employee in his personal suit. And -- and respondents offer the example of the postal carrier as one of those quintessential cases that Congress meant to address. But, of course, the postal exception to the FTCA, another exception in 2680, 2680(b), would bar many claims against the United States relating to a postal carrier's misdirection of the mail. Now, respondents would have the Court believe that if that suit was brought against the United States and the United States was found not to be liable because of that exception, that the plaintiffs were free -- and Congress intended that the plaintiff be free -- to then go sue the poor mail carrier himself personally.
04-1332 +++$+++ 16800 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about 2679(b)(2) of the Westfall Act which says the Government doesn't get substituted for the employee in a Bivens claim? Westfall -- the Congress was -- was quite concerned, it seems, with preserving an action brought for violation of the Constitution of the United States.
04-1332 +++$+++ 16801 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect to section 2676, Bivens claims today, after the enactment of the Westfall Act, stand in the same footing as common law claims stood prior to the enactment of the Westfall Act. In other words, prior to Westfall, you could bring a common law claim against an employee, but if you brought a suit against the United States, the judgment in that suit would bar the common law claim against the employee. In other words, the plaintiff had to make a choice. Likewise, when Congress enacted Westfall and said you no longer have a choice with respect to common law claims, those have to be brought against the United States, it left the plaintiffs with a choice with respect to constitutional claims. They could choose to pursue a Bivens remedy, but if they sue the United States on those claims, the judgment and the action under 1346 would be a complete bar to any action against the employee.
04-1332 +++$+++ 16802 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if -- if they decided to pursue a Bivens claims -- a Bivens claim, doesn't the -- the Government often undertake the representation of the Government employees in those cases?
04-1332 +++$+++ 16803 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. And an additional concern of Congress was that the Government would be forced to defend against the suit twice. In effect, the cost of litigation might be borne by the Government in both cases.
04-1332 +++$+++ 16804 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
04-1350 +++$+++ 16808 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in No. 04-1350, KSR International versus Teleflex, Incorporated. Mr. Dabney.
04-1350 +++$+++ 16810 +++$+++ FALSE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: This case concerns a very broadly worded patent claim, claim 4 of the Engelgau patent, that the Solicitor General and the United States Patent and Trademark Office have both told this Court is invalid under Section 103 of the Patent Act and was issued in error. The Federal Circuit's vacatur of summary judgment in this case is grounded in a judicially devised test that is fundamentally inconsistent with --
04-1350 +++$+++ 16811 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask, if that's the position of the PTO, why aren't they proceeding to cancel the patent?
04-1350 +++$+++ 16812 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The case is in litigation at this point, Justice Ginsburg, and in patent litigation district courts are vested with authority and this Court is vested with authority to render a judgment of invalidity under Section 282 of the Patent Act.
04-1350 +++$+++ 16813 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the question is, you say the PTO has recognized that it issued this patent, that it's an invalid issuance. So why aren't they curing their own mistakes, never mind what a court is going to do?
04-1350 +++$+++ 16814 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there is the possibility of director- initiated re-examination of patents as certainly an administrative remedy that does exist. But where a case is in pending litigation such as this, the traditional way that these disputes are resolved is for a court to apply the law to the facts and render a judgment on a defense of invalidity which has been pleaded to the plaintiff's claim of patent infringement in this case. This issue arises in the context of a defense pleaded to a claim for patent infringement and I'm not sure that the Patent Office really could swoop in and cut off the plaintiff's claim in the manner Your Honor is suggesting. The Federal Circuit in this case applied the approach it's applied in previous cases, which is a categorical approach. The Federal Circuit says that no matter what might be the nature of an alleged invention or improvement, no matter how broad might be a claim made in an issued patent, no matter how small might be the difference between a patent claim and prior art, and no matter how modest might have been the degree of skill needed to devise subject matter described by a patent claim, the Federal Circuit says regardless of any or all of that a court of the United States can never, ever sustain a defense of invalidity under Section 103 of the Patent Act except in a very limited and narrowly defined circumstance. That circumstance is a record that includes clear and convincing evidence, that yields a jury verdict or specific finding showing what the Federal Circuit calls a teaching, suggestion, or motivation to combine prior art teachings in the particular manner claimed by the patent at issue. The decision in this case treats Section 103 not, as this Court has said, as a codification of a condition for patentability whose benchmark is skill and ingenuity. The decision in this case treats section 1 as implementing a supposed entitlement to patent protection that a court --
04-1350 +++$+++ 16815 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're talking about in this case.
04-1350 +++$+++ 16816 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1350 +++$+++ 16817 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We're talking about what the law should be. Would you make, be making the same argument if we were looking at the most recent decisions of the Federal Circuit, the ones that they issued within the year, and each as I remember they held that the patent was obvious and therefore invalid? Suppose we were dealing in what was, the cases were, what were they, Kahn, Alpha, and Diestar?
04-1350 +++$+++ 16818 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, what the Federal Circuit has done in recent times has been after a certiorari was granted in this case to erect a series of escape devices from what is otherwise a categorical test that must be imposed in all cases. As a practical matter the Federal Circuit still characterizes as an issue of fact for determination by a jury the presence or absence of teaching, suggestion, or motivation, and so these seemingly remedial steps that have been taken by the Federal Circuit do not materially affect the problem that's praised by this case, which is the well nigh impossibility nowadays of being able to have an efficient, inexpensive, quick and predictable determination of whether claimed subject matter meets the statutory standard.
04-1350 +++$+++ 16819 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what is the difference between asking whether something is implicit in the, in the prior art and simply asking whether it would have been obvious to a person of ordinary skill in the art?
04-1350 +++$+++ 16820 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The statute and this Court's precedents make the benchmark of patentability skill, what degree of skill is needed to devise subject matter in respect to an objectively defined problem, objective looking at the claim and looking at the prior art? What the Federal Circuit is talking about now is an inquiry into motivation, not skill. Those two are very different concepts. There is not a word in this Court's precedents that says that whether a patent should be granted or not depends on whether a hypothetical person had hypothetical motivation to do what everybody knows he could do.
04-1350 +++$+++ 16821 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course, the reason that the Federal Circuit has devised this additional test or gloss on Graham is that they say obviousness is, it's deceptive in hindsight. In hindsight everybody says, I could have thought of that; and that you need -- if you don't have the sort of constraint that their test imposes, it's going to be too easy to say that everything was obvious.
04-1350 +++$+++ 16822 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the Court, Mr. Chief Justice, the Court needs to be very clear what is meant by the term "hindsight." If by hindsight is meant looking at what's claimed now, the subject matter sought to be patented, and comparing that to the prior art, to call that analytical process improper hindsight is to make a frontal assault on the statute itself. If by hindsight means to posit a desired result, a clay doorknob, and to ask whether more skill and ingenuity than were required by ordinary skill in the art was needed to do that, to say that that constitutes improper hindsight is to make a frontal assault on the entire body of this Court's precedents construing section 103 and its common law predecessors. With regard to the kind of bias Your Honor is talking about, this Court's precedents provide a wealth of mechanisms for protecting against that, including the statement towards the end of the Graham opinion, which is the only source of the word "hindsight" that I've seen cited in the amici brief, which was a discussion of the secondary consideration. So that in a case like Goodyear against Rayovac there's an excellent case where the claimed subject matter seems so simple in hindsight. This was a case decided by this Court in 1944. A leakproof battery that had been a problem that had defied solution for years and there was all kinds of motivation to solve it, and the fact that it was not solved was considered important by this Court in sustaining the validity of the patent in that case, which claimed nothing more than a sheet metal sheath wrapped around the electrodes and materials generated in the battery.
04-1350 +++$+++ 16823 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I can understand, I think, what a teaching is. I take it a teaching is you put all the prior art -- that's what I guess that's what Judge Rich explained, which I thought was very enlightening to me in I can't remember the name of the case, Wigmore, Winsmore --
04-1350 +++$+++ 16824 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Winslow.
04-1350 +++$+++ 16825 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Winslow. You put it all around the room. All right, we've got it all around the room, and I begin to look at it and if I see over that it somehow teaches me to combine these two things, if it says, Breyer, combine this and that, that's a teaching and then it's obvious. Now, maybe it doesn't have the teaching, it just has the suggestion. Maybe it says, we suggest you combine this or that; okay, then it's obvious. But I don't understand, though I've read it about 15 or 20 times now, it though I've read it about 15 or 20 times now, I just don't understand what is meant by the term "motivation."
04-1350 +++$+++ 16826 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the best I think anybody could do would be to look at the opinion in this case and try to figure that out.
04-1350 +++$+++ 16827 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I tried. You've read a lot of cases. You're a patent lawyer, and so what is the understanding as best you have it of what is just meant by the term "motivation"? To be more specific, if they mean motivated to go look to the prior art, well, anybody would want to look in the prior art. If I want to invent something I'll look anywhere. I'll look to the prior art. I'll look to the Library of Congress. I'll look to my cousin. I mean, I'll look wherever I can find it. So they can't mean that, and if they don't mean that what do they mean?
04-1350 +++$+++ 16828 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in this case what the respondents is Mr. Engelgau would have had no motivation to look to the Asano-designed pedal because he was trying to meet the requirements of Fort Motor Company and Asano would not have met those requirements and therefore Mr. Engelgau would have had no motivation to start with Asano.
04-1350 +++$+++ 16829 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Say that again? You wouldn't have a motivation to look to the prior art to find your problem. What's an example where you have a motivation distinguishing you from everybody else? I mean, everybody has a motivation to look to the prior art.
04-1350 +++$+++ 16830 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You disagree with the motivation test.
04-1350 +++$+++ 16831 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1350 +++$+++ 16832 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So perhaps you're not the --
04-1350 +++$+++ 16833 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right person to ask. (Laughter.)
04-1350 +++$+++ 16834 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I respectfully suggest --
04-1350 +++$+++ 16835 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You don't have a motive to answer that question right away.
04-1350 +++$+++ 16836 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Fine, that's fine.
04-1350 +++$+++ 16837 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe if you study carefully this Court's precedence, including Graham itself and just about every other case this Court has ever decided, what this Court has said is the measure, what our society agreed to pay off on is subject matter that reflects a certain degree of skill. And this Court has rejected time and time again the notion that someone who was the first simply to take advantage of the known capability of technology was entitled to a patent.
04-1350 +++$+++ 16838 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, would it be, would it be inadvisable for us to say the motive test teaches us something important; it has a valuable place; it's just not the exclusive test for what's obvious.
04-1350 +++$+++ 16839 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly.
04-1350 +++$+++ 16840 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or do we have to reject it all out of -- out of hand?
04-1350 +++$+++ 16841 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the presence or absence of motivation to devise something.
04-1350 +++$+++ 16842 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Motivation in this special sense.
04-1350 +++$+++ 16843 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'm not sure it is in a special sense. What the Federal Circuit has done is has, it has attributed controlling significance to what is in most cases at best a factor, and in fact is nothing more than a legal argument about the preemptive effect of prior art. The motivation debate in this case is all about what is the preemptive legal effect of the Asano reference. It either invalidates the claim --
04-1350 +++$+++ 16844 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, but, but my question is does it not serve to show us at least one way in which there can be obviousness?
04-1350 +++$+++ 16845 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would agree that if there is --
04-1350 +++$+++ 16846 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It may not be the exclusive test. We're -- I'm asking what the test ought to be.
04-1350 +++$+++ 16847 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the test, I mean in this case, the specific claim at issue in this case is very analogous to the claim that this Court considered in the Anderson's-Black Rock case. What we have in this case is no dispute as to any of the factual inquiries that have traditionally defined patent validity analysis. The prior art that we rely on, it's undisputed that it's prior art and it's in the record. The level of skill is undisputed. The quantum of difference between the claimed subject matter and the prior art is undisputed. The only issue in this case is what legal consequences follow from that. What question do you ask to decide whether or not that difference adds up to a patentable invention? It's very analogous to what was going on in the Anderson's-Black Rock case. Anderson's-Black Rock was a case like this in which someone had invented a radiant heat burner and the patentee in that case had seen that there was a market for using that by attaching it to an asphalt spreader. So the patent claim in that case was taking someone else's invention, the radiant heat burner and hanging it on a standard painting apparatus and using it for its, one of its marketable purposes. This Court held in this, in the Anderson's-Black Rock case that the patentee had not done anything patentable in that case. All he had done was take a burner that functioned as a burner, and a spreader that functioned as a spreader, and the two components did not affect one another's operation at all. It was in the parlance of this Court's precedents, an aggregation.
04-1350 +++$+++ 16848 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How does -- how does motivation enter into that analysis in that case? How would you, how would you have applied the motivation? I -- like Justice Breyer, I don't understand what the motivation -- motivation element is. How would you have applied the --
04-1350 +++$+++ 16849 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if the patentee in that case --
04-1350 +++$+++ 16850 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He had no particular motivation to use that earlier patent, did he?
04-1350 +++$+++ 16851 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, actually in that case there actually was quite a story. In that case there was a story that for years and years you'd had this cold joint problem of laying successive courses of asphalt blacktop, and -- and this guy actually saw something that was interesting, that you could use this radiant heat burner to solve the asphalt blacktop problem. That was not what he claimed, though. What he claimed was an apparatus that just had these two things together, and they didn't interact with one another any more than if they had been both put in the same shopping bag. And that's what we have in this case. We have an adjustable pedal assembly that does whatever --
04-1350 +++$+++ 16852 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. No. No. It took from 10 years to go from -- I think 10 years from Asano to Engelgau, so it must have been not all that obvious.
04-1350 +++$+++ 16853 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the, on this record, and even if you take at face value what's said in the respondent's brief in this case, which is very largely not based on the record, the story is, from Mr. Engelgau is, Fort Motor Company had a particular requirement and Mr. Engelgau sat down to design to it. He to design a pedal that had would meet Ford's requirements and one way that he did that was to come up with the kind of pedal assembly that's shown in the figures of the patent. But we are not here talking about the patentability of the figures of the patent. We are not talking about the patentability of claims 1, 2 or 3 of the patent; we are talking about claim 4 in which these respondents got a little greedy. Claim 4 describes almost nothing --
04-1350 +++$+++ 16854 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you, do you concede -- do you concede that claims 1 through 3 are valid?
04-1350 +++$+++ 16855 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We take no position on that. They're not an issue in the case.
04-1350 +++$+++ 16856 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If I had asked your opinion as an expert would you -- (Laughter.)
04-1350 +++$+++ 16857 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, with respect, I would have no opinion on that question. (Laughter.)
04-1350 +++$+++ 16858 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I could stand here and make arguments.
04-1350 +++$+++ 16859 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I mean it seems to me that the whole argument that you're making as to Ford is that anybody knows you could, you use an electronic -- you have an electronic throttle, it serves a purpose; the pedal serves a purpose; put the two together.
04-1350 +++$+++ 16860 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Here's the --
04-1350 +++$+++ 16861 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why doesn't -- don't 1, 2 and 3 do the same thing?
04-1350 +++$+++ 16862 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because -- because --
04-1350 +++$+++ 16863 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If they're invalid then I have -- then I'm struggling to find what your test is.
04-1350 +++$+++ 16864 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Here's the reason.
04-1350 +++$+++ 16865 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't know what your test is.
04-1350 +++$+++ 16866 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Here's the reason. What's shown in the figures of the Engelgau patent is an adjustable pedal assembly that has a large bore tube from which you suspended a pedal arm on a yoke, and it slides back and forth along the tube. And that's the way that it provides for adjustment. And in claims 1, 2 and 3 some of that structure is recited. So those claims would not necessarily be invalid by the Asano reference because the Asana adjustment mechanism doesn't use a tube, and doesn't use a yoke; it uses pins and slots and it provides adjustment by a different mechanism. The respondents have not asserted claims 1, 2 and 3 in this case because those claims don't describe anything remotely like the petitioner's pedals. They limited their claim to claim 4 because only by claiming this enormous verbal abstraction that is claim 4 can they make a colorable claim of patent infringement against the petitioner in this case. So I would respectfully submit that the Court does not need to decide whether 1, 2 or 3 would be valid but the point would be, the question would be what we did in the Hotchkiss case or in the Anderson's-Black Rock case or any of these cases. Would it have required more than ordinary skill to devise that claim structure with those additional structural limitations to solve some objectively defined problem, and that hasn't been litigated or briefed.
04-1350 +++$+++ 16867 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Going back to the asphalt case, were you suggesting that if they had made a claim for a process patent, that it might have been valid?
04-1350 +++$+++ 16868 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Conceivably. If there are no further questions I'd like to reserve the rest of my time.
04-1350 +++$+++ 16869 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Dabney. Mr. Hungar.
04-1350 +++$+++ 16871 +++$+++ FALSE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court. Construed as the sole means of proving obviousness the teaching suggestion motivation test is contrary to the Patent Act, irreconcilable with this Court's precedents and bad policy. It asks the wrong question and in cases like this one, it produces the wrong answer. It should be rejected and the judgment of the Court of Appeals should be reversed.
04-1350 +++$+++ 16872 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What do you understand motivation to refer to in that test?
04-1350 +++$+++ 16873 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's not entirely clear, Your Honor. I think that it's sometimes difficult to distinguish, certainly between motivation and suggestion. One way in which it is used for example, is if there were some indication in the prior art that doing something a certain way might save money and then there would be a motivation to save money, which might supply the requisite motivation for combining the two prior art references.
04-1350 +++$+++ 16874 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you agree that in that context it would serve a valid purpose, i.e., can we -- that is to say, can we keep the motivation test and then supplement it with other, with other means of, other ways of showing obviousness?
04-1350 +++$+++ 16875 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. We agree that teaching suggestion and motivation are valid means of proving obviousness, valid considerations for the Court. And this Court's precedents are entirely consistent with that. A number of cases cited by respondent show that the Court has looked to suggestion as a means to determining whether a patent is obvious. The problem with the Federal Circuit's test is it makes that the exclusive test and precludes obviousness determinations in the absence of satisfaction of that test which this Court's precedents are clearly not consistent with. In fact in Graham itself, in the Sakraida case, in Dann against Johnston, lower courts had held patents valid because of a lack of suggestion. This Court reversed without requiring or even addressing the question whether there was some explicit principle that had been proven by the party challenging the patent, by clear evidence that there was such a teaching suggestion motivation. It's just foreign to this Court's precedents as a mandatory prerequisite for obviousness.
04-1350 +++$+++ 16876 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What do you make of the, sort of the revolution argument that whether it's contrary or intention with, in fact the, it's been applied in what is now the Fed Circuit for what, 20 years, more than 20 years I guess. And to tip it over now is going to produce chaos. What's the answer to that?
04-1350 +++$+++ 16877 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, several things, Your Honor. First of all, of course, there can be no legitimate reliance in lower court precedent that's contrary to Supreme Court precedent, and it was an open secret in the patent bar that the approach being taken by the Federal Circuit was inconsistent with cases such as this Court's Sakraida decision.
04-1350 +++$+++ 16878 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I realize there's been comment on it, but guess I'm -- I'm raising the question that comes up in the old motto. I mean, if the error is common enough and long enough, the error becomes the law. And in effect is that what we are confronted with here?
04-1350 +++$+++ 16879 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. I just think it would be dangerous proposition for this Court to endorse that line of argumentation but even leaving that aside, it's not justified here on the facts. And this patent is a good example. No one is suggesting that claims 1 through 3 are invalid; the problem here is that claim 4 sweeps so broadly, so much broader than what the applicant in fact invented, that it sweeps in obvious manifestations.
04-1350 +++$+++ 16880 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but -- if we see it your way, are there going to be 100,000 cases filed tomorrow morning?
04-1350 +++$+++ 16881 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Your Honor. What we are talking about here are claims at the outer boundaries of patentability, even under the Federal Circuit's test. And in those cases there will no doubt be some claims, such as the claim in this case that can be resolved at summary judgment by a court, that the court can simply determine as a matter of law, it's obvious. Whereas under the Federal Circuit's test it has to go to a jury and the somewhat unpredictable, at the least --
04-1350 +++$+++ 16882 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Hungar, this is the problem that I have with your test. I think I understand you right, now, just to say teaching suggestion motivation has its place; it's okay; but it shouldn't be the exclusive test.
04-1350 +++$+++ 16883 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-1350 +++$+++ 16884 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what I understand your brief to say is that it has to be supplemented with what you have called, you've labelled "sufficiently innovative." And then I begin to think well, what's "sufficiently innovative?" How is a trier supposed to know if something -- in other words I think what you're suggesting as a supplement is rather vague.
04-1350 +++$+++ 16885 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think the "sufficiently innovative" is more of a description rather than a test; it's a description of what this Court said in Graham. In Graham itself the Court laid out the proper analysis which is you need to consider in detail, not in the more cursory fashion that the Federal Circuit's test encourages, but in detail the capabilities of a person of ordinary skill and the content of the prior art and the differences between the prior art and the invention, and ascertain -- it's ultimately a legal judgment informed by those detailed factual inquiries, whether it is obvious or nonobvious and entitled to patent protection. And in addition I would point out that this Court in Sakraida provided a framework for assessing patents like this one, where each of the elements is set forth in the prior art and each of the elements in the claimed invention is merely performing its already known, previously known function as set forth in the prior art.
04-1350 +++$+++ 16886 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Hungar, I have a question that's sort of along the lines of Justice Ginsburg's. It isn't just the Federal Circuit that has been applying this test. It's also the Patent Office and it's been following the Federal Circuit's test for 20 years or so. What, what is -- assuming that we sweep that test aside and say it's been incorrect, what happens to the presumption of validity of, of patents which the courts have been, have been traditionally applying? Does it make any sense to presume that patents are valid which have been issued under an erroneous test for the last 20 years?
04-1350 +++$+++ 16887 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think that it would make sense because the statute requires it, and as a practical matter it shouldn't make any difference, because the only category of cases in which the result would change under our test is the category in which as a matter of law, in light of the factual issues that are required under Graham, as a matter of law the Court concludes that the difference between the claimed invention and the prior art is so trivial that it cannot be given the protection of a patent. And in those circumstances the presumption doesn't come into play. It's a legal determination; the presumption has been understood to effect the burden of proof, and in the Federal Circuit's view the measure of the burden of proof requiring clear and convincing evidence on the underlying factual considerations, not the ultimate legal determination. But one of the problems with the Federal Circuit's test is that it transforms what this Court made clear in Graham is supposed to be a legal determination. Ultimately it transforms it into a jury question. Because in a case like this one where you have as conclusory affidavits from respondent's experts saying "oh, this would not have been obvious." And that in the Court of Appeals view is enough to create a jury question and then you then have to role the dice in front of a jury in each one of these cases, except of course the many cases in which the challenger can't meet the teaching suggestion motivation test at all and simply is unable to challenge the validity of the patent, notwithstanding this Court's holding in Graham that it's ultimately a legal determination -- admittedly one informed by detailed factual inquiries. Another problem with the Federal Circuit's test is that it devalues and de-emphasizes the statutory focus and this Court's focus in Graham on the capabilities of the person of ordinary skill.
04-1350 +++$+++ 16888 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well when you talk about the statutory focus, your innovation test -- I mean, do you regard that, is that a legal conclusion of nonobviousness? Or is it an additional test beyond what the statute requires?
04-1350 +++$+++ 16889 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We haven't suggested an innovation test, Your Honor. We were simply attempting to describe in perhaps imprecise terms the holding of this Court in Graham, and the holding of this Court in Graham is that the ultimate inquiry for the court, obviously suggestion, teaching, motivation, teaching a way in the prior art, all of these are factual, subsidiary factual issues that will shed light and a great deal of light on the ultimate question in each particular case, but ultimately the question for the court is whether in light of all those underlying factual showings the differences between the claimed invention and the prior art are sufficient to, that they would have been obvious to a person of ordinary skill in the art. And that ultimately is a legal determination, you can refer to that as sufficiently innovative to justify a patent, but the ultimate question, the ultimate test is the one set forth in the statute and in the Graham decision.
04-1350 +++$+++ 16890 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In this case, would there have been anything for a jury under your test?
04-1350 +++$+++ 16891 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, because in this case it is perfectly clear that it would have been obvious for a person of ordinary skill to take the Asano patent, add the sensor, the electronic sensor in a manner that that off-the-shelf sensor is designed to be added, and voila, you have a winning combination.
04-1350 +++$+++ 16892 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about claims 1, 2 and 3?
04-1350 +++$+++ 16893 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know, Your Honor. Those have not been litigated. Those have additional limitations that are not present in claim 4 that, depending on what the prior art might reveal about those, we have no way of knowing whether they would or would not be obvious because obviously, that question has not been litigated. Certainly there is nothing in the record in this case that would suggest they are obvious.
04-1350 +++$+++ 16894 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about the experts? You said this was obvious and this should have, not have gotten very far. But there were two experts, were there not, who made declarations, that had all kinds of credentials, and they called it elegant, novel and nonobvious.
04-1350 +++$+++ 16895 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. There are two problems with that. Number one, the conclusory assertion that an invention is nonobvious, just like the assertion that it's obvious from an expert, should have no weight because of course --
04-1350 +++$+++ 16896 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well these, these were declarants who gave a whole declaration. They didn't just say that bottom line.
04-1350 +++$+++ 16897 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But again, it's a legal question. And moreover and more importantly, the problem with the Court of Appeals analysis, one problem, and with the experts' analysis, is that they're focusing on the narrow definition of the quote unquote problem by looking only at what this particular inventor was trying to solve, but the scope of the claim is far broader. Thank you.
04-1350 +++$+++ 16898 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Hungar. Mr. Goldstein.
04-1350 +++$+++ 16900 +++$+++ FALSE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: I think the Court will want to have available to it the red brief and also this big, which is the supplemental joint appendix which has some of the patents in it, and I'm going to quote from both of them. I think you can't understand what motivation means and what the whole test that the Federal Circuit is employing means --
04-1350 +++$+++ 16901 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're right about that.
04-1350 +++$+++ 16902 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- without -- (Laughter.)
04-1350 +++$+++ 16903 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- without starting from the statute itself. And so I want to start with the statutory text and use that as the jumping off point like the Court of Appeals has for the inquiry that it's asking. It's reproduced at page 21 of the red brief. And Congress said it's the first blocked quote, that a patent may not be obtained though the invention is not identically disclosed or described, as set forth in Section 102 of this title. Those are the other requirements for giving a patent. If the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art. So the term of art here is obvious, and the plain meaning of obvious, if you understand that the outcome of this case is obvious or if you think that the, what the Federal Circuit means by its test is not obvious, is something that's either apparent or not apparent, and that's what the Federal Circuit is asking. It says look, take the invention and see whether or not it was apparent or not apparent, and what the Federal -- to a person of ordinary skill at the time of the invention. And what the Federal Circuit says is, we want to be inclusive. The other side takes these words, teaching, suggestion, motivation, as if they were words of limitation rather than these words of inclusion. And what the Federal Circuit has said is what we mean by teaching a suggestion or a motivation, and it can be explicit or implicit, is anything that would have made this invention apparent to a practitioner at the time. That's what it's after. It wants to know, look, was it apparent to someone else, a practitioner at the time of the invention of Engelgau to take Asano and put the electronic throttle control on pin --
04-1350 +++$+++ 16904 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if that's all it means, why don't they say it?
04-1350 +++$+++ 16905 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They do say that.
04-1350 +++$+++ 16906 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, then what is this word that confused me a lot, motivation? I found a lot of enlightenment in Judge Rich's idea of taking all the relevant art and putting it up around the room in pictures. And then I thought, well, okay, if that art teaches me to do what your client did, okay, it doesn't. Does it suggest it? Not really. Well then, you say motivated. Where does that get you?
04-1350 +++$+++ 16907 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand. Can I take you to their, the Federal Circuit's answer? It's two pages before the quote that I just gave you, page 19, there's another blocked quote. The Federal Circuit has explained what it's talking about when it means a motivation. They say that they have repeatedly held that there is an implicit motivation to combine. It exists not only when a suggestion may be gleaned from the prior art as a whole, that's a teaching, but when the improvement is technology independent and the combination of references results in a product or process. And these are common motivations. You would do it because it's more desirable because it's stronger, cheaper, faster, lighter, smaller, more durable, more efficient.
04-1350 +++$+++ 16908 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ For who? For me?
04-1350 +++$+++ 16909 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For a practitioner, yes.
04-1350 +++$+++ 16910 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ For me the inventor?
04-1350 +++$+++ 16911 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1350 +++$+++ 16912 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I know that, because otherwise --
04-1350 +++$+++ 16913 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Justice Breyer, you don't understand.
04-1350 +++$+++ 16914 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's true. (Laughter.)
04-1350 +++$+++ 16915 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The question is not -- I can illustrate it with this case. The question is not do you want more efficient pedals. If that's the test, then everything is obvious because we always want more efficient pedals, Justice, and I'll come back to this. It's always going to be the case that if your test is capability, every patent including the first three claims of this one is going to be obvious, because you're always capable of assembling a pedal. What it says, what the Federal Circuit says, is there a motivation to make this invention? Was there motivation, and this was the heart of the Federal Circuit's ruling in this case, their theory is that Asano renders our patent obvious. And the Federal Circuit said all right, what's the motivation to take Asano and take the electronic throttle control and make it responsive --
04-1350 +++$+++ 16916 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the claim goes beyond that. Your claim goes beyond the Asano combination and in your brief you, you, you discuss the case as though your, your limited claim 4 just relates to this invention that you, you -- nobody would have thought of using the Asano pedal in the Ford car given the limited space available and so forth, and therefore, this was really an invention. But that's not the claim. The claim is simply combining the, any pedal, the Asano pedal or any other one with the, with the automatic electronic sensor.
04-1350 +++$+++ 16917 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In a particular place, yes, that's correct. Justice Scalia, the reason these Federal Circuit judges were right notwithstanding your correct point which is, just to be clear, our invention is not limited to Asano. Our invention takes any fixed pivot adjustable pedal and any electronic throttle control and says combine it in a particular way. The Federal Circuit's point is their motion rests on Asano. The other side's theory is, we've got this invention, Engelgau. As has been pointed out, nobody did anything like this for 10 years. The other side comes back and says yes, that it would have been obvious to somebody who had an Asano to do the same thing basically. And so the Federal Circuit said okay, show us. If this isn't going to be hindsight, where we just give you the invention and you just say oh, I could have done that, they say give us any evidence that someone would have done what you say, which is take Asano, it's their argument, Asano --
04-1350 +++$+++ 16918 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But why Asano?
04-1350 +++$+++ 16919 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You'll have to ask them, Justice Scalia. They filed a motion that it was obvious.
04-1350 +++$+++ 16920 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're the one that's standing up here making that argument. They're not doing it.
04-1350 +++$+++ 16921 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, the patent examiner gave us a patent, initially rejected this patent as obvious, decided that it wasn't after considering all of these things, a statutory presumption of validity attached under Section 282. So we have what we say is clear and convincing evidence, the question isn't presented here, but whatever. The other side comes in and tries to knock our patent out. They file a motion, and the motion rests on a piece of prior art. And so what the Federal Circuit said is, if we're not going to knock all of these patents out by hindsight, all we want to know is one thing and you know, on remand, they may well be able to prove it. We don't think they can. But all it's asking for is for the district court to make a finding that says the other side is right, that it would have been obvious to take Asano, which is their only example, and combine it with electronic throttle control in this way. That is what's so --
04-1350 +++$+++ 16922 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You look at that thing, you think what this genius did, and I don't doubt that he's a genius, is there are wheels that turn around. And the wheels turn around to a fixed proportion to when you make the accelerator go up and down. Now I think since high school a person has known that if you have three parts in a machine and they each move in a fixed ratio one to the other, you can measure the speed of any part by attaching a device to any other as long as you know these elementary mathematics. I suppose it wasn't Mr. Engelgau, it was probably Archimedes that figured that one out. So he simply looks to something that moves, and he sticks a sticker on it. Now to me, I grant you I'm not an expert, but it looks at about the same level as I have a sensor on my garage door at the lower hinge for when the car is coming in and out, and the raccoons are eating it. So I think of the brainstorm of putting it on the upper hinge, okay? Now I just think that how could I get a patent for that, and that -- now that's very naive, that's very naive. But the point is, I don't see what we're talking about, and what is supposed to happen with all these affidavits. And the -- the -- Mr. Asano himself, I would think at some point when the Ford company decides to switch to electronic throttles, of course will have every motivation in the world to do precisely what your client did, because he can't use that thing that pulls back and forth anymore. Rather, he has to get a little electronic cap and attach it to something that moves in fixed proportion to the accelerator going up and down. Now those are my whole reactions when I saw this and I began to think it looks pretty obvious. What's supposed to go on, I don't understand it.
04-1350 +++$+++ 16923 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. Let me answer it in a few different ways because I want to again specify and make clear what it is that the Federal Circuit says is included within teaching, suggestions, motivations. Then I want to turn to our invention and the affidavits in the case. The Federal Circuit has said, and I'll just -- you can come back to it for future reference. It's recorded at the bottom of page 19 of our brief. Common sense, common knowledge, common understandings are all included within teaching, suggestions or motivations.
04-1350 +++$+++ 16924 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It looks like Dystar was decided by the Federal Circuit after it decided this case, didn't it?
04-1350 +++$+++ 16925 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, it did.
04-1350 +++$+++ 16926 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, you have to be defending what the Federal Circuit did in this case. And the fact that they say well now, what this means is really in some other case, that seems to me that's really irrelevant.
04-1350 +++$+++ 16927 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If I could just clarify, Dystar --
04-1350 +++$+++ 16928 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I think you should tell us when the case has been decided after, I think it has much less, much less weight.
04-1350 +++$+++ 16929 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, I agree that you have to distinguish two things rightly. The first is the state of the law as it exists now, and that's what we ask you to affirm. And that is, the Federal Circuit has made quite clear that its test is inclusive, and we think that that establishes that it's not necessary to add some new sort of undetermined test of --
04-1350 +++$+++ 16930 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You say its test is inclusive. I would say its test is meaningless. They have essentially said, our test simply reduces to what, what your opponents in this litigation say. If you think that's being inclusive, you know -- it doesn't add anything whatever to -- to the -- to the question, would a person of the ordinary skill in this field have conceived of this idea.
04-1350 +++$+++ 16931 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, I disagree for the following reasons, and that is: What the Federal Circuit is saying is that any amount of evidence, any form of evidence is relevant to answer a particular question. We have a question that we want answered. They have a question they want answered. Their question, the petitioner at least, I'm not sure about the Solicitor General, the petitioner's standard is, was somebody capable of doing this? We have a different question. Would it have been apparent to, and that's what we think the text requires, would it have been apparent to one skilled in the art? And so the Federal Circuit is saying whatever evidence you want to bring to bear --
04-1350 +++$+++ 16932 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Don't you think there's a grammatical difference in the meaning of the word obvious and the meaning of the word apparent?
04-1350 +++$+++ 16933 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't.
04-1350 +++$+++ 16934 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you're saying that the question is whether it's obvious?
04-1350 +++$+++ 16935 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, that's right. And what the Federal Circuit is saying, you have -- what it's saying is, if you just look to capability, and that is, could you put Asano together on pin 54, you will miss the most important part of invention. And that is, invention isn't at the end when you put the two things together. Invention is finding the problem, deciding what pieces of the prior art to use, and deciding how to put them together. Everybody is always capable of, it will always be the case, I think, that a practitioner of the art can put them together. Remember the very point of a patent, when you look at our patent at the end of the case, we were required to explain it in great detail.
04-1350 +++$+++ 16936 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but your -- the Federal Circuit is saying that, the gist of it is if and only if the previous patents taught this. But you, you can look at these two devices, and you're a good mechanic, you've never seen a patent, you've never read these patents, you've never read these claims, you've never been to the Supreme Court, and you put them together.
04-1350 +++$+++ 16937 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, that's not --
04-1350 +++$+++ 16938 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the Federal Circuit said oh, it's not in the patent, it's not obvious.
04-1350 +++$+++ 16939 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, with respect, that is not a fair description of the Federal Circuit's test, and I will take you to the language that addressed this claim. It's at the bottom of page 18 of our brief and also at the top of 19, and we quote the Solicitor General's brief. The Solicitor General asserts to the contrary, that Federal Circuit precedent focuses attention exclusively on a search for teaching, suggestions and motivations in the prior art. That is not accurate. That was a quote from their brief. Here is a quote from the Solicitor General. It is from a new opinion of the Federal Circuit, but it is quoting, it is citing a series of old opinions from the Federal Circuit. Under our nonrigid motivation, suggestion, teaching test, a suggestion to combine need not be found in the prior art. And then there is the blocked quote that I read to Justice Breyer about making things cheaper, faster, lighter, common knowledge and common sense.
04-1350 +++$+++ 16940 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, once you define the teaching, suggestion and motivation test that way so that it can be implicit, it can be based on common sense, I don't quite understand the difference between that and simply asking whether it's obvious. Could you just explain what that adds?
04-1350 +++$+++ 16941 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, all that it adds is an analytical framework. It's an elaboration. The word "obvious" --
04-1350 +++$+++ 16942 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It adds a layer of Federal Circuit jargon that lawyers can then bandy back and forth, but if it's -- particularly if it's nonexclusive, you can say you can meet our teaching, suggestion, or motivation test or you can show that it's nonobvious, it seems to me that it's worse than meaningless because it complicates the inquiry rather than focusing on the statute.
04-1350 +++$+++ 16943 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, the reason that the Federal Circuit disagrees and over 30 years this special court has elaborated this problem -- these judges alone, for example, have heard 300 cases on nonobviousness -- is that we need a guidance, we need guidance for the lower courts. We need to focus them on the right question, and for patent examiners and patent practitioners, and the right question is not is -- was someone merely capable of putting the two together. The right question is is there any reason to believe that it would have been apparent at the time of the invention to create this invention whether it's through a teaching, a suggestion, a motivation.
04-1350 +++$+++ 16944 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or anything else.
04-1350 +++$+++ 16945 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Or anything else.
04-1350 +++$+++ 16946 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So why don't you say that?
04-1350 +++$+++ 16947 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They have.
04-1350 +++$+++ 16948 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It is -- I agree with the Chief Justice. It is misleading to say that the whole world is embraced within these three nouns, teaching, suggestion, or motivation, and then you define teaching, suggestion, or motivation to mean anything that renders it nonobvious. This is gobbledygook. It really is, it's irrational.
04-1350 +++$+++ 16949 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, I this it would be surprising for this experienced Court and all of the patent bar -- remember, every single major patent bar association in the country has filed on our side --
04-1350 +++$+++ 16950 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, which way does that cut? That just indicates that this is profitable for the patent bar. (Laughter.)
04-1350 +++$+++ 16951 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, it turns out that actually is not accurate.
04-1350 +++$+++ 16952 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It produces more patents, which is what the patent bar gets paid for, to acquire patents, not to get patent applications denied but to get them granted. And the more you narrow the obviousness standard to these three imponderable nouns, the more likely it is that the patent will be granted.
04-1350 +++$+++ 16953 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, that is not the point of these bar associations' either. These bar associations, including the American Bar Association, the American Intellectual Property Law Association, have lawyers on both sides of all these cases. They're looking for a test that has balance and that is what the Federal Circuit has done. Now, let me just say --
04-1350 +++$+++ 16954 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ As you know, we've had a series of cases and in these series of cases we have received many, many briefs from all kinds of organizations and there are many from various parts of the patent bar that defend very much what the Federal circuit does and there are many from parts of the patent bar and others who are saying basically that they've leaned too far in the direction of never seeing a patent they didn't like and that has unfortunate implications for the economy. So if you're going to these very basic deep issues, is there a reason for me to think, which I do now think, that there is a huge argument going on in those who are interested in patent as to whether there is too much protectionism and not enough attention paid to competition or whether it's about right, or whether it goes some other way. In other words, your argument now suggests all this is well settled, but I tend to think maybe it isn't well settled and maybe it is a proper thing for us to be involved in. So what are your views since you brought it up?
04-1350 +++$+++ 16955 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, there is a big debate over whether or not there is too much patenting in this country and Congress is involved in the debate. What I don't think that there is that much debate about is whether a properly applied test that the Federal Circuit has articulated strikes the right balance, because that is why all of the patent bar associations have filed on our side, I think, and that is it takes account of the interests of both sides and that is it says, you're right, we have to be concerned about overpatenting, it says on the other hand we have to be very concerned about hindsight determinations of obviousness. But I do want to just step back and make a point about judicial administration. If the ultimate conclusion of this Court is that teaching, suggestion, motivation just boils down into an inquiry into obviousness, I still think that an opinion that says that and says that it, that this Court believes that it is embracing the bottom line of what the Federal Circuit has been doing, is the one that will be much better for the patent system and for the courts, because we have a real concern and that was articulated -- asked about at least by Justice Ginsburg and Justice Scalia, and that is if you purport to change the rules unnecessarily, if you say we're going off in a different direction, this test has -- underlies 160,000 patents issued every year. There is no rhyme or reason to applying a presumption of validity if you're saying the patent examiner applied the wrong test. And it will create genuine dramatic instability. The question I think is if you think instead that the teaching, suggestion, motivation test is incomplete, what is it that you want to add on top of it, and that's really what I didn't understand from the first half-hour. If it's going to be --
04-1350 +++$+++ 16956 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It doesn't have to go on top. It's just to say what you've been saying, that what you're supposed to look to ultimately is whether a person, as the statute says, who is familiar with the subject, of ordinary skill in the art, whether to such a person this would have been obvious. Now, there are many, and this Court has listed several, factors that might count in favor of it not being obvious, such as people have been trying to do it for a long time and they haven't been able to figure out how. That's a good one, and there are some other ones here. If there's a teaching right there, it seems to cut the other way. But to hope to have a nonexclusive list seems to me a little bit like Holmes trying to hope to have an exclusive list of what counts as negligence. In the law we have many standards that you can get clues about, but you can't absolutely define them, and why isn't this one of them?
04-1350 +++$+++ 16957 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, I think that's the dilemma that the Federal Circuit has been facing and is in answer to the criticism of Justice Scalia and that is the Federal Circuit isn't trying to articulate every single possible thing that can show you that it is obvious. What it's trying to do is focus you on the right question. It's trying to say, here's the process of invention: We have to figure out there's a problem. We have to figure out what prior art you're going to use. You have to figure out how you're going to combine it, and then you actually combine it. The act of invention, the thing that is the discovery that we want to encourage, is there in the middle. It's picking out the prior art and deciding how to put it together.
04-1350 +++$+++ 16958 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Supposing we then were to say exactly what this Court already said, that the standard here is obvious, we list a few of these additional factors that they've thrown in, and just as the Court said before, all these additional factors are there. They can be considered in an appropriate case, but it is important to remember that the ultimate matter which is for the judge is to apply the word "obvious" or not in light of the evidence and what the experts say and the facts as found by a jury or whoever is the factfinder. Would you have any objection to an opinion like that.
04-1350 +++$+++ 16959 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
04-1350 +++$+++ 16960 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well then, in this case let's assume that we all strike out on coming out with the magic formulation. One of the ways the law progresses is we go from case to case, and in this case you have two standards of operation. One is a pedal that basically operates by pressure. The other -- and by levers. Other is by electronics, and these are two different methods of making the carburetor release the fuel. So why not, so somebody combines them. Why is that such a big deal as, as claim 4 says it is. Certainly this inventor would not be the only one to think that the two could and should be combined.
04-1350 +++$+++ 16961 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, that's absolutely right, and I just want to focus you on why it is you now think I lose. We don't lose because that's not our invention. The Federal Circuit's point was that that this invention, claim 4, does not put an electronic throttle control together with an adjustable pedal. It's do it in a particular way. And let me take you in summary judgment in this case to the declarations and explain why it is that the experts here said you would not have done this. And I just have to urge the Court to cross the t's and dot the i's here and pay particular attention to exactly what it is that we claimed and exactly what it is that they said rendered our patent obvious.
04-1350 +++$+++ 16962 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where in claim 4 do you say it's putting it together in a particular way?
04-1350 +++$+++ 16963 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, if I can take you to the big book that I asked you to --
04-1350 +++$+++ 16964 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right, page 8.
04-1350 +++$+++ 16965 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Page 8, exactly. And that is, there are six different pieces to claim 4 and I'm going to take you to the relevant one. And they are the last two paragraphs here. We claim an electronic control attached to the support, so we specify where the electronic control is going to be. And then we say where, what that electronic control is going to be responsive to, and that's the next paragraph: Said apparatus characterized by said electronic control being responsive to said pivot, and that said pivot is defined above to be a fixed pivot. So here is the design. Let me take you to a picture if I could, and that's going to be at the back of the red brief. Engelgau is the third foldout page. It looks like this. What we say is there is going to be a fixed pivot. It's the red pivot in our picture, and there's going to be an electronic throttle control. That's actually on the -- you can't see it because you're looking straight at the device. That's on the next page. It's in green. There's going to be an electronic throttle control and it's going to respond to that pivot. So we specify where we're going to put the electronic throttle, on the support. That's what the Federal Circuit recognized was our invention. Now --
04-1350 +++$+++ 16966 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it basically an invention where in fact there are only four or five moving parts on the thing that we have seen, every one of the moving parts is moving with a fixed ratio to the accelerator going up and down, as it must be because they're also moving in fixed ratio with the throttle thing coming out. And so, whichever of those four that you figured out you were going to attach it to, it's obvious, isn't it, that you have to attach it either to the pedal or to the throttle thing that comes out, or to a part of the machine that moves in fixed ratio to the movements of one of those two? Now, that's what I would find fairly obvious. Why isn't that obvious?
04-1350 +++$+++ 16967 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right. Let me, Justice Breyer. The experts say it's not obvious and the reason nobody did it for 12 years and the reason that Asano was never combined with an electronic throttle control is explained in the record in this case and it's twofold. The first is, and I have to take you now to the picture of Asano because that's what the claim that is supposed to make our invention obvious is. They say you would have done this with Asano. What the experts say is this Asano thing, no one would ever use it at all.
04-1350 +++$+++ 16968 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Who do you get to be an expert to tell you something's not obvious.
04-1350 +++$+++ 16969 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You get --
04-1350 +++$+++ 16970 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, the least insightful person you can find? (Laughter.)
04-1350 +++$+++ 16971 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, we got a Ph.D. and somebody who had worked in pedal design for 25 years.
04-1350 +++$+++ 16972 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Exactly.
04-1350 +++$+++ 16973 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And people who actually know this industry. And they, there are two things that come from the record in this case. The first is all of the experts and Engelgau himself testified not simply, no, this is not obvious, but you would have never used Asano to solve this or any other problem with an electronic throttle control.
04-1350 +++$+++ 16974 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Excuse me. You keep coming back to Asano. Why do you keep coming back? Your claim here does not say anything about Asano.
04-1350 +++$+++ 16975 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, the way these cases are litigated, and properly so, is the other side says this would be obvious in light of a particular piece or collection of prior art. You may have a nonprior art motivation to combine them, but you're going to say something else already exists. They say it's Asano, and you're going to combine it with something else. This is their motion. Their argument, the argument that was presented to the Federal Circuit, was that you would take Asano. That's why --
04-1350 +++$+++ 16976 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think they happened to use Asano simply because that's what you stuck it on. But I think their basis, their basic point, is anybody would have thought to stick it on, whether it's stick it on Asano or stick it onto some other mechanical accelerator mechanism.
04-1350 +++$+++ 16977 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that is not -- we did not stick it on Asano. Nobody stuck it on Asano. They picked Asano because it was the prior art of adjustable pedal designs. Justice Scalia, you --
04-1350 +++$+++ 16978 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's because the Federal Circuit's approach focuses narrowly prior to our grant of certiorari, allegedly more flexibly after, on prior art, as opposed. To I would say common sense. And so they say we have to find something in prior art to show that this was non -- that this was obvious.
04-1350 +++$+++ 16979 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, that's not correct. Even under a capability standard, even under an extraordinary innovation standard, you are going to compare something to prior art. You're going to take what exists now and compare it to what existed before, no matter what standard you're employing. And what they did is they compared it to the prior art, which is Asano, and the Federal Circuit said, all right, you want to say it will come from Asano. It would not come from Asano for either of two reasons. The first is you would never use Asano. That's the expert testimony. The second is the reason given by the PTO in its brief in this case and that is you wouldn't put it on the pin that would render Engelgau obvious. You would put it somewhere else. They say that you would put it attached to a lever up high. What I want to make clear is two things. The first is, though the Federal Circuit has in recent opinions been quite emphatic about how inclusive its test is, it has consistently cited earlier Federal Circuit precedent and said that the other side and the people who claimed that their standard is too narrow and misguided are mischaracterizing it. And the second is, the judgment in this case quite explicitly acknowledges and implies the implicit teaching, suggestion, motivation standard. So I don't want you to have the mistaken impression that there has been some radical change in Federal Circuit law. But no matter what one thinks about the differential between Federal Circuit law today and Federal Circuit law a year ago or two years ago, there is a quite considerable cost by articulating a desire to head off in a new direction, because there will be dramatic instability in the patent system, the incalculable investments that underlie current patents. There is nothing fundamentally not functional about how the Federal Circuit is approaching this question. It has had decades to look at this to try and elaborate a standard. This court in cases like Sakraida and --
04-1350 +++$+++ 16980 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it so quickly modified itself.
04-1350 +++$+++ 16981 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And in the last year or so, after we granted cert in this case after these decades of thinking about it, it suddenly decides to polish it up.
04-1350 +++$+++ 16982 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, if you actually believe that, then you just don't believe the judges in the Federal Circuit because in each of these opinions they say quite explicitly we are not changing it.
04-1350 +++$+++ 16983 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would you dispute that in some of the earlier cases, like Dembiczak with the garbage bag that looks like a pumpkin, that this TSM test was applied in a way that seemed to ask for something quite explicit in the prior art?
04-1350 +++$+++ 16984 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do think that you can find outliers. I think that's fair. These judges as I said have heard 300 of these cases. There are mistakes in the Patent Office; there are mistakes by judges. The Federal Circuit explains in Dembiczak what it was actually looking for is an explanation. It wasn't saying that you had to use the prior art, and it has tried to make quite clear that the law is not that you have to have prior art. Or that those decisions here today. You can't take, in a system that produces so many patents, and say ah, look at this side swing patent, or the garbage bags, and draw from that the conclusion that the system is fundamentally broken. Justice Breyer, I meant to come back to that. We can look through the studies, we cite a series of empirical studies in our brief that have looked at this problem, the rhetorical claim that the obviousness rule is leading to gross over-patenting.
04-1350 +++$+++ 16985 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Tell me again, just to be sure I have it my -- tell me very briefly, what it is that makes this invention nonobvious?
04-1350 +++$+++ 16986 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Two things. The first is -- and they do arise from the other side's motion under Asano. First you wouldn't have chosen Asano. The second is the Federal Circuit explained -- excuse me, the Solicitor General explains that you would have put the electronic throttle control somewhere else, technically on what's called pivot 60, which would not, would have rendered, would have not have rendered Engelgau obvious.
04-1350 +++$+++ 16987 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The invention, to use an old-fashioned term, is the decision of where to put the control.
04-1350 +++$+++ 16988 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is the extent of the entire invention.
04-1350 +++$+++ 16989 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And just -- what makes it nonobvious is that it's attached to a nonmoving piece?
04-1350 +++$+++ 16990 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ An adjustable pedal that has a nonmoving pivot, yes.
04-1350 +++$+++ 16991 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the claim doesn't require that.
04-1350 +++$+++ 16992 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes it does. It does. I promise. (Laughter.)
04-1350 +++$+++ 16993 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But just to follow up from Justice Stevens' question, what makes this nonobvious is the decision to place the electronic control on a part of the car that doesn't move?
04-1350 +++$+++ 16994 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ On the support --
04-1350 +++$+++ 16995 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
04-1350 +++$+++ 16996 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And then a particular kind of adjustable pedal. That's the state of the record so far.
04-1350 +++$+++ 16997 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm sorry. Doesn't the axis turn?
04-1350 +++$+++ 16998 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Does the pivot turn?
04-1350 +++$+++ 16999 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't there an axis, and the axis turns?
04-1350 +++$+++ 17000 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1350 +++$+++ 17001 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The pivot rotates?
04-1350 +++$+++ 17002 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The pivot rotates, but it doesn't -- the difference is that the pivot doesn't move with the adjustment of the pedal. It spins around, of course, you have to have something that you can -- but the prior art, almost all that involved a pivot that when the pedal moved out, the electronic throttle control would go with it.
04-1350 +++$+++ 17003 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the wires would get worn, worn down, right? And the invention here is well, let's not put it somewhere where it doesn't move, and so the wires won't move and it won't get worn down.
04-1350 +++$+++ 17004 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would be a motivation. That's absolutely right, why you would want to improve on the part. The Federal Circuit said that you would never do it in the way that was described here. You may be able to prove it some other way on a remand. This was a very specific motion, and the Federal Circuit faithfully addressed the claim of obviousness that was presented to it.
04-1350 +++$+++ 17005 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you. Mr. Dabney, you have three minutes remaining but you may take four.
04-1350 +++$+++ 17007 +++$+++ FALSE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. As someone who tries patent cases, there is no legal regime that is a greater generator of patent litigation than the teaching suggestion motivation test that is urged by the respondent. Where in this unbelievable situation where, in the District Court, this Court's precedents were cited, were not followed. In the Court of Appeals, this Court's precedents in Anderson's-Black Rock and others were cited, not distinguished, followed at all. If the law of this Court had been applied in the District Court I wouldn't be standing here right now. The reason that we have this, this proceeding going on is because of this extraordinary situation, where notwithstanding that this Court has issued precedents in a variety of circumstances dealing with multiple technologies, lots of different kinds of differences, lots of different kinds of alleged innovation, they are simply not paid attention to in the corpus of the Federal Circuit's case law up until about a month ago. So the, this Court could do no greater service to the actual process of determining whether claimed subject matter does and does not comply with the statute than to decide with case. The worst possible thing that can happen in this case is for the case not to end here, and for the Court not to provide a precedent as it has done in so many particular past cases, and give the public an example of a particular claim and a particular difference that does not meet the standard. What's made clear throughout the history of patent decisionmaking is that no verbal formula is ever going to get you there. What we have as a functional approach; it's not as opposing counsel suggests -- is "it" apparent, is "it" obvious, would it have been obvious to do "it?" What this Court has held over and over again starting with the doorknob case in 1851 is to pose a problem. Would it have --
04-1350 +++$+++ 17008 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about in this case where the wires were getting frayed until this disclosure?
04-1350 +++$+++ 17009 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's not, if you read the affidavits carefully that is not an accurate characterization of -- of any evidence put in by the petitioner. That was an argument --
04-1350 +++$+++ 17010 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So suppose I read the record the other way. Suppose I read the record as saying this invention stopped the wires from being frayed and therefore it was an advance.
04-1350 +++$+++ 17011 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be, to the extent that that -- if that is established that could be taken into consideration along with other facts.
04-1350 +++$+++ 17012 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why would that be? I mean, I've worked out that the raccoons are gnawing the machine, at the bottom of the garage door and that's a problem. So I move it to the top of the garage door. Does that suddenly -- nobody before thought of moving it to the top of the garage door; nobody before had thought of moving it to a different part that moves in a constant ratio with the accelerator.
04-1350 +++$+++ 17013 +++$+++ TRUE +++$+++ MR. DABNEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What the statute calls for, Justice Kennedy, is not to focus on a particular subjective problem like fitting into a Ford F 350, or particular difference between a prior art pedal that provides wire chafing and a claimed invention. The law has always required that the patentability be determined by the smallest amount of difference. So if it were true that there was wire chafing, that that was a problem that would have had to have been overcome, if you started with a prior art pedal that, that provided for wires to move -- well then, maybe that combination would not make the claimed subject matter obvious. But that would not foreclose the defendant from saying well, this other technology over here that doesn't suffer from that problem, it's a simple matter to modify that, so the premise of the question, that because there is some other potential combination that might have been, might have been more difference or less reason to modify it than the one that's relied on by the petitioner, is legally not material to the decision in this case. So I respectfully submit that the -- I really have to emphasize this. I mean, this is a litigation between, you know, two real businesses. The justified expectations, Justice Souter that I think this Court has recognized over and over again, are the expectations of real innovators, who make real products and have real inventions. And -- and I think it would come as a great surprise to the owner of the Asano patent to find as Justice Breyer suggested, that in order to supply it to a modern vehicle maker it would have to pay tribute to the Engelgau patent. Thank you.
04-1350 +++$+++ 17014 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. The case is submitted.
04-1360 +++$+++ 17018 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument in Hudson versus Michigan. Mr. Moran.
04-1360 +++$+++ 17020 +++$+++ FALSE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Over the last 50 years, courts in virtually every American jurisdiction have suppressed evidence seized inside homes following knock-and-announce violations -- including this Court, on two occasions. Those suppression orders reflect an understanding of two points key to this appeal. The first point is that the manner of entry -- and, in particular, a knock-and-announce violation -- is not somehow independent of the police activity that occurs inside the house. And, as this Court directly recognized in Wilson, the reasonableness of police activity inside a home is dependent on the manner of the police entry.
04-1360 +++$+++ 17021 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ May I ask you whether there are statutes in various States that allow an officer to get a no-knock warrant?
04-1360 +++$+++ 17022 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, there are, Justice O'Connor.
04-1360 +++$+++ 17023 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ And does Michigan have such a statute?
04-1360 +++$+++ 17024 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do not believe so, Justice O'Connor.
04-1360 +++$+++ 17025 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ How common are those statutes?
04-1360 +++$+++ 17026 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe about half the States have such no-knock -- no-knock statutes. So, in Michigan, a police officer -- if the -- if the circumstances on the scene justify a no-knock entry, then the officer is permitted, by case law and, of course, by the precedents of this Court, to go ahead and do so.
04-1360 +++$+++ 17027 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Why would an officer, without such permission, want to make a no-knock entry while possessing a warrant --
04-1360 +++$+++ 17028 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1360 +++$+++ 17029 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ -- a search warrant?
04-1360 +++$+++ 17030 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- as this case illustrates, sometimes officers believe that it is to their advantage to perform a no-knock entry, or to fail to comply with the knock-and-announce requirement. And that is why --
04-1360 +++$+++ 17031 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Why?
04-1360 +++$+++ 17032 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Officer Good apparently thought that his safety would be better served he if disregarded the knock-and-announce requirement; and so, he candidly testified, at the evidentiary hearing, that it's essentially his policy, in drug cases, to go in without a -- without performing the necessary knock-and-announce. And that was 1 year after the -- this Court's decision in Richards, saying that there is no per-se exclusion of drug cases from the knock-and-announce requirement. But that brings me to the second reason why courts have almost universally, until the Stevens case in 1999, held that suppression of evidence is necessary, and that is deterrence; because, without the suppression of evidence, there is very little chance that the officers will be deterred from routinely violating the knock-and-announce requirement, from adopting a sort of personal violation of the requirement, just as --
04-1360 +++$+++ 17033 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't know, I'd be worried -- you know, bust in somebody's door -- that the homeowner wouldn't shoot me. Without announcing that I'm the police, he had every reason to believe he's under attack. Isn't that a considerable deterrent?
04-1360 +++$+++ 17034 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that's the one purpose of the knock-and-announce requirement that doesn't protect the homeowner's interest, that protects the officer's interest --
04-1360 +++$+++ 17035 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Exactly.
04-1360 +++$+++ 17036 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- against being shot.
04-1360 +++$+++ 17037 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right.
04-1360 +++$+++ 17038 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ However, what we'll see then, if there is no exclusion of evidence following knock-and-announce rules, are entries precisely like the one we have here, where the officers will, in fact, announce -- they yell, "Police, search warrant" -- but then they'll immediately go in. Officer Good said that he went in real fast. He went in, and it took him just a few seconds to get in the door. So, that's what they'll do. They'll announce -- some officers will announce, because they'll want the --
04-1360 +++$+++ 17039 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-1360 +++$+++ 17040 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- people inside to know that they're police, but they will not wait for a refusal, and they certainly will not wait for a reasonable amount of time for some --
04-1360 +++$+++ 17041 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm not sure I agree with a point that you make in your brief that civil actions simply are of no use. That might have been the case when we first adopted the exclusionary rule, but our docket is crowded with 1983 cases brought by prisoners, brought by convicted felons, and many of these cases are successful below. What reason is there to believe that that wouldn't be an adequate deterrent?
04-1360 +++$+++ 17042 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Simply, Justice Scalia, that, as far as we can determine, no one wins a knock-and-announce case, or we haven't been able to find a single case in which someone has actually recovered damages for a knock-and-announce violation. So, if this --
04-1360 +++$+++ 17043 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that because the damages are slight or because there's a defense that is successful? What has been the defense in these tort cases?
04-1360 +++$+++ 17044 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Both, Justice Ginsburg. First of all, in many cases, such as this one, where the police don't actually destroy the door, it would be very hard to quantify the damages, and it would be very hard to find a lawyer to take a case such as this. But the second barrier is the various immunities, tort immunities. In section 1983 actions, there are qualified immunities that make it difficult to win a suit. And because it is not a bright line as to when the police officers have to knock and announce, and when they do not -- that is, Is there a reasonable suspicion that a quick entry or a no-knock entry will be met with violence or that the evidence will be destroyed? -- courts tend to be very generous in granting qualified immunity to officers -- that is, concluding that some reasonable officers might have concluded that it was justified to dispense with the knock-and-announcement requirement.
04-1360 +++$+++ 17045 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Of course, that same problem exists if the consequence is exclusion of evidence. Courts are going to view it the same way. You're not going to avoid that problem by excluding evidence.
04-1360 +++$+++ 17046 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there -- but there is not a qualified-immunity defense to the exclusionary rule.
04-1360 +++$+++ 17047 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well --
04-1360 +++$+++ 17048 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And so, if the Court concluded --
04-1360 +++$+++ 17049 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I mean, your point is, it's very hard to tell whether they waited long enough, right? And that's why they don't win a lot of these cases. But the same thing is going to be true if the consequence of not waiting long enough is the exclusion of the evidence. The court is going to be very -- it's going to be very difficult to tell if they waited long enough, and, as you say, the court is likely to say, you know, "Let it go."
04-1360 +++$+++ 17050 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, to some extent, Justice Scalia, but, as an empirical matter, I've cited many cases, in my brief, over the last 50 years where courts from a vast majority of American jurisdictions have found knock-and-announce violations in criminal cases, and have, therefore, excluded the evidence, including this Court, on two occasions, 1958 and 1968. So, courts do find knock-and-announce violations in criminal cases.
04-1360 +++$+++ 17051 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Our two cases did not -- did not raise that issue. The issue was not decided in those cases, was it?
04-1360 +++$+++ 17052 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The issue of a knock-and-announce violation leading to exclusion of evidence --
04-1360 +++$+++ 17053 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right.
04-1360 +++$+++ 17054 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- was decided. The -- there was not an inevitable-discovery issue raised in those two cases, because those cases predated the inevitable-discovery doctrine. But, of course, in 1958 and 1968, this Court was very familiar with the independent-source doctrine. And, really, the argument that the Michigan Supreme Court has adopted -- they call it an inevitable-discovery argument; it's really an independent-source doctrine.
04-1360 +++$+++ 17055 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You don't -- you don't dispute the application of the inevitable-discovery principle here, do you?
04-1360 +++$+++ 17056 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not at all, Justice -- Mr. Chief Justice.
04-1360 +++$+++ 17057 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
04-1360 +++$+++ 17058 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, the --
04-1360 +++$+++ 17059 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you don't dispute that the purpose of the knock-and-announce rule is not to allow the targets of the search to dispose of evidence, or anything of that sort.
04-1360 +++$+++ 17060 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely not. The purpose of the knock-and-announce rule is to protect the homeowner's privacy rights. It's one of the core parts of the right of the people to be secure in their homes against unreasonable police invasions.
04-1360 +++$+++ 17061 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but it's a limited privacy right, of course. These people have a warrant, right?
04-1360 +++$+++ 17062 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-1360 +++$+++ 17063 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, how would you describe the privacy interest that the knock-and-announce rule is protecting?
04-1360 +++$+++ 17064 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think this Court has described it well in the -- in its most recent cases -- in Banks and Richards, in particular, as well as Ramirez and Wilson -- that it is a right against being terrified by having the police come in. It is a right against being embarrassed. People might be in all stages of undress or in compromising positions when the police come in. And it is a right against having one's door destroyed. The English cases, the early English cases, first recognized that it's a right against having one's --
04-1360 +++$+++ 17065 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, it doesn't go at all to the items that are the target of the warrant.
04-1360 +++$+++ 17066 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
04-1360 +++$+++ 17067 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And so, why should the remedy for the violation be to exclude those items? The privacy that's protected isn't the cocaine, the weapons, the other items that were discovered.
04-1360 +++$+++ 17068 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, with respect, Mr. Chief Justice, I think you could say the same thing about the warrant requirement. The purpose of the warrant requirement is also to protect the sanctity and the privacy of the home; it's not to protect contraband that one might have in the home, or whatever it is that the police are looking for. It's --
04-1360 +++$+++ 17069 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, it's to protect privacy in the possessions and papers and effects. And these are possessions, papers, and effects. It goes right to what the police are trying to seize, and you have an independent magistrate make a determination that there's probable cause to believe it, et cetera, et cetera. The knock-and-announce rule is an entirely -- concerned with entirely different things. And yet, you're enforcing it by excluding the papers, effects, and possessions.
04-1360 +++$+++ 17070 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I think the courts have recognized that it's necessary to enforce it that way, because other methods of enforcing it will not work. But --
04-1360 +++$+++ 17071 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but just --
04-1360 +++$+++ 17072 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I think it's --
04-1360 +++$+++ 17073 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- just on the point of the causal relation that the Chief Justice was exploring, I mean, there is a causal relation in a but-for sense. We know that.
04-1360 +++$+++ 17074 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1360 +++$+++ 17075 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I suppose the position of the Respondent is that the minute there's an entry after the knock violation -- the no-knock violation -- - the minute there's an entry, that injury ceases, so that it's different from a warrantless rummaging-around through drawers and so forth. I suppose that would be their argument.
04-1360 +++$+++ 17076 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that is their argument, Justice Kennedy, and I respectfully disagree with it. As a historical matter, even the early English cases recognized that when an officer illegally entered -- a sheriff illegally entered a home with a valid writ, that officer became a trespasser, and the activity that he performed in the home was, therefore, illegal. In the reply brief, I cited several early American cases, from the 1830s and 1840s, holding that when an officer had a valid writ to seize a debtor's goods, but illegally entered the home, then that writ became no good; and, therefore, the officer -- the sheriff, in those cases -- could be sued, not only for the illegal entry, but also for the seizure of the goods that he had a valid warrant, or a valid writ, to seize, and that that --
04-1360 +++$+++ 17077 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but here it was a warrant to enter the home, not to seize particular goods. So, the entry of the home was not illegal. The entering of the home was perfectly okay. What was illegal was not knocking and announcing in advance. It seems to me that's quite a different -- quite a different issue, and the causality is quite different.
04-1360 +++$+++ 17078 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia, I respectfully disagree that the entry was not illegal. I believe the entry was illegal, because what a warrant authorizes an -- a -- an officer to do is to make a legal entry. It does not allow the officer to enter however he pleases; it allows the officer to make an entry that complies with the law -- in particular, the fourth amendment. And so, the entry was illegal. They could have performed a legal entry.
04-1360 +++$+++ 17079 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I understand that, but the essence of the violation was not the entering; whereas, in the cases, the old common law cases you're talking about, the essence of the violation was the entering. Here, the entering was perfectly okay; it was the manner of it, the failure to give the advance notice, that made it bad. And that, it seems to me, creates a different situation.
04-1360 +++$+++ 17080 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think, starting in Semayne's case, the Court recognized that even if the officer would have a right to knock down the door after a refusal of entry was obtained, that if the officer did not wait for that refusal, then the entry was illegal. And so, I think the common law cases do support -- the old English common law cases, starting with Semayne's case -- do support the notion that the entry -- the entry does become illegal if the officer does not wait for the refusal. And in this case, of course, the officer did not wait at all for any refusal, candidly admitted that he went in as soon as he could get through the door, as quickly as he could.
04-1360 +++$+++ 17081 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Moran, would you clarify an answer you gave to Justice O'Connor at the outset of the argument? You said there is no statutory right to get a no-knock warrant. But did you say, as a matter of case law and practice, that can be done in Michigan?
04-1360 +++$+++ 17082 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe so. I don't believe that Michigan still allows for no-knock warrants. But officers, of course, can perform no-knock entries when arriving at the scene, the circumstances justify a no-knock entry.
04-1360 +++$+++ 17083 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You mean, if you had a case where the reason you were arresting the guy is because he's shot through the door the last three times somebody knocked and announced, you still have to knock and announce, under Michigan law?
04-1360 +++$+++ 17084 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't think so, Mr. Chief Justice. I think, in that case, that would satisfy the Richards standard. In that case, the officer would have particularized suspicions amounting --
04-1360 +++$+++ 17085 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But he couldn't get a warrant saying that.
04-1360 +++$+++ 17086 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe Michigan has a procedure for granting no-knock warrants, not --
04-1360 +++$+++ 17087 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that's -- that's actually what's disturbing me about this, because I thought the knock-and-announce rule was a rule that would allow a policeman to go in without knocking and announcing when he has reasonable grounds for thinking he might get shot if he didn't. So, I -- as I read the briefs, I thought maybe that's not how it's being implemented, that the policemen are supposed to run the risk of being shot. I didn't think that was the situation. So, I'd appreciate your explaining that to me.
04-1360 +++$+++ 17088 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in Richards, this Court said that if there are particular facts about this particular entry that would make an officer have reasonable suspicions that he is going to be shot at or the evidence is going to be destroyed, then the officer may dispense with the knock-and-announce requirement. There were no such suspicions in this case, and that's why the prosecution conceded, at the outset and at every step since, that it was a knock-and-announce violation. The officers had no information about this particular --
04-1360 +++$+++ 17089 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would it be sufficient if the officer says, "One, this is a drug gang; two, they don't let people into the house whom they don't know; and, three, they have guns"?
04-1360 +++$+++ 17090 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That might be sufficient, after Richards, but that's not the facts of this case. We have none of those facts in this case. They were serving a warrant, and they had no information that they were going to be in particular danger. They had no information, for example, that there were drugs, stored near the toilet, that were going to be flushed down.
04-1360 +++$+++ 17091 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let me just be sure I understand the hypothetical case, where, three times before, there had been warrants served, and, each time, the homeowner shot at the officer, the fourth time, they could go in without waiting.
04-1360 +++$+++ 17092 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that would be an easy case, Justice Stevens.
04-1360 +++$+++ 17093 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You think it would, okay.
04-1360 +++$+++ 17094 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because then you would have particular facts about this particular residence and the people involved. I think that would be a very easy case for a no-knock entry. We --
04-1360 +++$+++ 17095 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you can't get a warrant that says he can do that.
04-1360 +++$+++ 17096 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe Michigan has that procedure. Perhaps Mr. Baughman can correct me. He's a -- he's with the prosecuting attorney's office. But I don't believe Michigan has that procedure. Not all States do have that procedure. And, instead, States that don't have that procedure simply leave it to the officer to determine if there are those facts that justify a no-knock entry. So, there are many entries in Michigan, that occur all the time, that do not comply with the knock-and-announce requirement. And that's fine, because the officer does, in fact, have the particularized facts justifying a no-knock entry.
04-1360 +++$+++ 17097 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We've been down this route before in other cases, like Wilson, but it's still a troublesome measure. It's hard for me to believe that if a person has drugs in the pockets of his trousers or on the -- next to the chair where he's sitting, that he wouldn't immediately run and try to dispose them. I just think that it's ordinary behavior. And, if that's so, then it would follow that you never have to knock if you're looking for drugs that might be on the person. Do you have any comment as to that?
04-1360 +++$+++ 17098 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, then that would -- this Court, I think, would have to reverse Richards, because Richards said that the fact that it's a felony drug investigation does not justify a blanket exclusion from the knock-and-announce requirement. And this Court unanimously held, in Richards, that the knock-and-announce requirement applies in felony drug cases --
04-1360 +++$+++ 17099 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But --
04-1360 +++$+++ 17100 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- unless --
04-1360 +++$+++ 17101 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if we say that a likelihood -- or that the -- or substantial probability that the evidence will be destroyed allows the no-knock, why won't that be true in every drug case, other than for what we said in Richards?
04-1360 +++$+++ 17102 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because in Richards --
04-1360 +++$+++ 17103 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, do people say, "Oh, they've got me now. I won't get rid of the drugs"?
04-1360 +++$+++ 17104 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first of all, Justice Kennedy, I think the law presumes that homeowners will either make an explicit refusal, "No," or will answer the door; and primarily that they'll do the latter. The presumption of the homeowner that we're talking about is an innocent homeowner, somebody who is either -- has nothing to do with whatever the police are looking for. There are many cases where the police are looking for goods that are not connected to the people who are home.
04-1360 +++$+++ 17105 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, when there's probable cause to enter, there's no presumption of innocence, is there, or am I wrong?
04-1360 +++$+++ 17106 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it -- with -- probable cause is a standard at somewhere around 50 percent, and a very large number of warrants are executed on the homes of people who have nothing, or people who -- - there is something that the police are looking for, but they don't have anything to do with it; they're third-party homeowners. And, for that reason, the knock-and-announce requirement recognizes that many, many warrants -- many, many searches -- will be executed on the homes of perfectly upstanding, innocent people. And --
04-1360 +++$+++ 17107 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you have -- do you have any empirical basis for your statement that many warrants are executed and they don't find anything?
04-1360 +++$+++ 17108 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't have any statistics. I'm sure the FBI keeps statistics on at least Federal warrants. But it's true that in a large number of warrants, the police don't find what they're looking for, because probable cause is a standard that is not particularly high.
04-1360 +++$+++ 17109 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you have any basis for your statement that, in a large number, they don't find what they're -- anything that they're looking for?
04-1360 +++$+++ 17110 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't have any empirical evidence, but certainly lots and lots of anecdotal evidence, from reading newspaper accounts of police -- -
04-1360 +++$+++ 17111 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you --
04-1360 +++$+++ 17112 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- searches.
04-1360 +++$+++ 17113 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you don't dispute the fact that presumption of innocence -- the presumption of innocence survives an indictment, doesn't it?
04-1360 +++$+++ 17114 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does, and I think it --
04-1360 +++$+++ 17115 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1360 +++$+++ 17116 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- survives the search warrant.
04-1360 +++$+++ 17117 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So probable cause is not enough to eliminate the presumption of innocence.
04-1360 +++$+++ 17118 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I certainly would argue that --
04-1360 +++$+++ 17119 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1360 +++$+++ 17120 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Justice Stevens, that probable cause it not a very high standard. And in -- - many search warrants are, in fact, served on the homes of people who are not suspected, because they're thought to be the place where stuff was stored, but not be the people who are suspected of doing anything wrong in the first place.
04-1360 +++$+++ 17121 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In --
04-1360 +++$+++ 17122 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Moran, these old common law cases you referred to, which held that a failure to knock and announce renders the entry unlawful, what was the consequence, in those cases?
04-1360 +++$+++ 17123 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Those were cases in which, typically, the sheriff was sued for trespassing.
04-1360 +++$+++ 17124 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right. And the evidence would -- if found, was not excluded, right?
04-1360 +++$+++ 17125 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. There was --
04-1360 +++$+++ 17126 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, if we wanted to be faithful to those common law cases, we wouldn't exclude the evidence.
04-1360 +++$+++ 17127 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think things have changed, Justice Scalia, since those common law days, for that reason.
04-1360 +++$+++ 17128 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, then you shouldn't have cited the common law case. [Laughter.]
04-1360 +++$+++ 17129 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Stevens -- I mean, excuse me, Justice Scalia, things have changed, in the sense, first of all, that in those days there was a common law writ of trespass. If one were to file, in Michigan, a complaint for trespass against the sheriff, one would be laughed out of court today, because all that you have is a tort suit, which you have to show an extreme violation -- I cited the Michigan statute that requires extreme recklessness on the part of the police officer. The second point is that in those days the sheriffs were -- there were adequate means to control the behavior of sheriffs, because they were seen as arms of the judiciary. That, of course, was before the rise of the independent police forces that we have today. And so, the exclusionary rule, of course, was adopted in the late 1800s, early 1900s -- in part, in response to the changing circumstances of the police. The police were no longer under the direct control of the judiciary; and so, different remedies were necessary in order to assure compliance with constitutional rights.
04-1360 +++$+++ 17130 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In the courts that have allowed this action to go forward, has the rationale been that there is no other effective deterrent to ignoring or violating the knock-and-announce rule?
04-1360 +++$+++ 17131 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Ginsburg. At last count now, 11 State and Federal appellate courts have directly rejected the Michigan Supreme Court's reasoning. The Idaho Court of Appeals just joined the list 2 weeks ago, in a -- in a case that I -- is not cited, because it's so recent. And they have uniformly -- I believe all 11 of those cases have said that, "Were we to hold otherwise, the knock-and-announce rule would become meaningless," a worry that this Court expressed in Richards. This Court was very concerned, in Richards, that simply excluding drug cases from the knock-and-announce rule would make the knock-and-announce rule meaningless. And these courts have noted that statement -- the courts that came out -- this -- the decisions that came out after Richards, and have said, "If that is meaningless, then it would be especially meaningless if we were to exclude the entire knock-and-announce rule from the exclusionary rule, that there would be virtually no reason for police officers ever to comply with a knock-and-announce requirement. And so, I think the deterrence rationale is a large part of this, and that's what distinguishes this case from the inevitable-discovery cases, which the Michigan Supreme Court relied on.
04-1360 +++$+++ 17132 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I suppose there are a lot of other violations of constitutional rights by the police that are very hard to get at, and that cannot be remedied. And I suppose we could punish them by excluding all the evidence, as well. We don't do so, simply because there's no causality. We insist upon a causal connection between the two. It's not enough just to say the -- this is the only way to stop the police from making the violation.
04-1360 +++$+++ 17133 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it is not enough, but what is critical in this case is that the knock-and-announce violation goes to the manner of entry, and the Court has long recognized that the two predicates for seizure of goods inside a home, or arrest inside a home, are authority to enter the home, which is not contested here, and a lawful entry. And if either one of those two predicates is missing, then you have grounds to suppress the evidence; that is, the evidence inside the home is in the fruit of the unlawful entry.
04-1360 +++$+++ 17134 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about our opinion in Ramirez, where the manner of entry was such that there was damage to property?
04-1360 +++$+++ 17135 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-1360 +++$+++ 17136 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We didn't exclude the evidence there, did we?
04-1360 +++$+++ 17137 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. First of all, this Court didn't find that there was a violation in the -- in the damage in property; this Court found no -- did not find, as a matter of law, any fourth amendment violation. But I read the Ramirez -- that language from Ramirez as saying that as long as the entry remains lawful -- and, in Ramirez, the entry was lawful, because there were valid grounds to dispense with the knock-and-announce requirement. You had a known dangerous fugitive, who had bragged that he wouldn't be taken alive. And so, there was every reason for the officers to dispense with the knock-and-announce requirement. Therefore, the entry was legal. They had both authority -- that is, the warrant -- and they had a valid entry -- that is, a no-knock entry that was justified by reasonable suspicion that the officers would be met with violence if they did knock and announce their presence. And so, we -- in Ramirez, we have a lawful entry. The language that's quoted from Ramirez directly says, "the entry remains lawful," or words to that effect. And you have a different case if you had --
04-1360 +++$+++ 17138 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, what had happened? Had they broken a window on the way in? Is that --
04-1360 +++$+++ 17139 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-1360 +++$+++ 17140 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the entry remains lawful, despite the fact that the manner of the entry, which included the breaking of a window, was unlawful. I think what the Court meant was not, as you're portraying it, that, objectively, the entry was lawful. I think they were speaking: as a matter of law, despite the fact that the breaking of the window was wrong, the entry was lawful. Just as your opponent is saying here: despite the fact that there was no knock-and-announce, the entry was lawful.
04-1360 +++$+++ 17141 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, I don't see any language in Ramirez saying that the breaking of the window was unlawful. I think the breaking of the window -- I read the Ramirez opinion as saying the breaking --
04-1360 +++$+++ 17142 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But even if it was unlawful, it was not unconstitutional.
04-1360 +++$+++ 17143 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It wasn't -- certainly wasn't unconstitutional. Often, when the police perform a valid no-knock entry, they will damage property. Typically, they will destroy the door. And so, the breaking of the window in Ramirez, I don't believe was unlawful. I believe it was perfectly valid way for the officer to perform the entry; that is, to put the gun through the window in the garage area in order to prevent -- they believed that the homeowner had guns there and was going to use the -- run to the guns in order to repel the entry. And so, I believe it was a perfectly lawful entry. I think what Ramirez was saying was that not all fourth amendment violations bear fruit. And I agree with that. We do not have -- we do not propound here a theory of everything, having to do with all fourth amendment violations and the fruit that they propound. We simply say that, with a knock-and-announce violation that makes the entry unlawful, the evidence found inside the home, and only inside the home, is the fruit of that violation, unless there truly is an inevitable-discovery or independent-source argument; that is, something independent of the entry, which can't be done here, when the police simply barge in and, in a matter of seconds, perhaps minutes, find the evidence. So, the --
04-1360 +++$+++ 17144 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Mr. Moran, is it undisputed by you that the client would not have disposed of the drugs if the police had waited a few seconds?
04-1360 +++$+++ 17145 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, we presume that he would have come to the door. He was just a few feet from the door, in fact. He was right in front of the door. We presume that he would have come to the door, answered the door, admitted the police, and the police would -- then would have performed the search. If the Court has no further questions, I'd like to reserve the balance of my time.
04-1360 +++$+++ 17146 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Moran.
04-1360 +++$+++ 17147 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice.
04-1360 +++$+++ 17148 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Baughman.
04-1360 +++$+++ 17150 +++$+++ FALSE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The metaphor of "fruit of the poisonous tree" is frequently employed when the exclusionary rule is discussed. And that metaphor is apt. It is apt, because the sanction of exclusion, which is not, itself, constitutionally required, is designed to deter, and to deter in a specific way: to deter by depriving the police of the result -- the fruit, the product, the evidentiary advantage that has been gained by their improper conduct. And so --
04-1360 +++$+++ 17151 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Would you agree there is a knock-and-announce requirement --
04-1360 +++$+++ 17152 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1360 +++$+++ 17153 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ -- even though there is a warrant?
04-1360 +++$+++ 17154 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1360 +++$+++ 17155 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ And do you agree that that was violated here, that there wasn't really a knock-and-announce here?
04-1360 +++$+++ 17156 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, there was a -- an announcement, but a failure to wait. There's not -- the announcement principles require --
04-1360 +++$+++ 17157 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ All right.
04-1360 +++$+++ 17158 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- not only an --
04-1360 +++$+++ 17159 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Now, is exclusion of evidence in these circumstances a deterrent, so that the police would be less likely to do that?
04-1360 +++$+++ 17160 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It may be.
04-1360 +++$+++ 17161 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Yes.
04-1360 +++$+++ 17162 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I believe that, before the question of deterrence is reached, the question of causality must be addressed. This Court has always said that causation is a necessary, though not always sufficient, predicate, for a application of the exclusionary rule. The way this Court has put it is that it is clear that implementation of the exclusionary rule in particular cases begins with the premise that the challenged evidence is, in some sense, the product of the improper police activity. So, I believe --
04-1360 +++$+++ 17163 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, isn't it --
04-1360 +++$+++ 17164 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the question --
04-1360 +++$+++ 17165 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the product, here? I mean, if they had not -- if they had not entered, they would not have gotten their evidence. Their entry, because it violated knock-and-announce, was unlawful. So, it is a product, isn't it?
04-1360 +++$+++ 17166 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think -- I think where I would disagree, Your Honor, is that the entry is lawful -- in fact, it's not simply authorized, it's commanded by judicial order. The use of force --
04-1360 +++$+++ 17167 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, an entry that conformed with knock-and-announce would have been lawful. This entry didn't. This entry was unreasonable. So, I don't see how your argument fits the facts.
04-1360 +++$+++ 17168 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The way I distinguish it, and what I -- where I believe the distinction lies is that what was improper was not the fact of entry; what was improper was the use of force in entering. The --
04-1360 +++$+++ 17169 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but --
04-1360 +++$+++ 17170 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- knock-and-announce --
04-1360 +++$+++ 17171 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I mean, how do you make that distinction? I mean, it's like the -- you know, the Cheshire cat and a -- and the smile; you can't distinguish the two. There was one entry, and that entry violated the knock-and-announce rule.
04-1360 +++$+++ 17172 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again, the use of force in making the entry violated the knock-and-announce rule. The entry itself was commanded by the order of the court.
04-1360 +++$+++ 17173 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, how is that different from saying the entry is lawful, its only problem is, it was done without a warrant? I mean, you know, he's --
04-1360 +++$+++ 17174 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because if they're --
04-1360 +++$+++ 17175 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- inside the building; just, unfortunately, the means wasn't right. No warrant.
04-1360 +++$+++ 17176 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, if --
04-1360 +++$+++ 17177 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The means wasn't right. No knock-and-announce.
04-1360 +++$+++ 17178 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If there is no warrant, there is no judicial command to enter, so the entry is completely unjustified. Here, we have not set the appropriate --
04-1360 +++$+++ 17179 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but you might have probable cause, but just not have the -- have the warrant. So, what is the difference between having probable cause to enter, but failing to get a warrant, and having a warrant, but failing to knock and announce?
04-1360 +++$+++ 17180 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the fourth amendment commands that the police not enter without judicial authorization. The police don't get to make the probable cause decision in advance. And we wish to have a judge make that decision, so we won't, in hindsight, say, "Had you gone to the judge, the judge would have found probable cause, so we'll ratify what you did after the fact." The entry itself -- not just the manner of entry -- the entry is invalid, unless the judge authorizes it, or unless some exception exists.
04-1360 +++$+++ 17181 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it your view the entry was lawful or unlawful, in this case?
04-1360 +++$+++ 17182 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The fact of entry was lawful.
04-1360 +++$+++ 17183 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No.
04-1360 +++$+++ 17184 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, in fact --
04-1360 +++$+++ 17185 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No --
04-1360 +++$+++ 17186 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- if they had a bazooka -- -
04-1360 +++$+++ 17187 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that's not the question. The actually -- actual entry was lawful, yes?
04-1360 +++$+++ 17188 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The entry was lawful.
04-1360 +++$+++ 17189 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, okay.
04-1360 +++$+++ 17190 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the same would be true if what they had was a bazooka, and blew the house up. [Laughter.]
04-1360 +++$+++ 17191 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1360 +++$+++ 17192 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, okay.
04-1360 +++$+++ 17193 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. The entry would be lawful. The manner of entry would be unlawful. And the consequence of that entry would turn on what force was used. As, in this case, they opened the door and walked in. There was no -- there was no injury to person, there was no injury to property.
04-1360 +++$+++ 17194 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, basically, your argument rests on the fact that we can draw a distinction between entry and manner of entry.
04-1360 +++$+++ 17195 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. My principle that I am advocating is that any police error in the execution of a search, or in the accomplishment of a search, bears fruit only in relation to the purpose, or purposes, served by the principle violated. One --
04-1360 +++$+++ 17196 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's a --
04-1360 +++$+++ 17197 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- has to ask --
04-1360 +++$+++ 17198 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's a -- it's a strong argument, on the other side, that if we adopt your position, the officers would have no incentive, other than their own judgment about their personal safety, whether to comply with the knock-and-announce rule.
04-1360 +++$+++ 17199 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is if one assumes that the civil remedy -- that the 1983 actions has no teeth and has no force, and I don't believe that's true at all.
04-1360 +++$+++ 17200 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is the experience in Michigan? The Michigan Supreme Court has had this rule for some time, that you don't exclude the evidence.
04-1360 +++$+++ 17201 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Uh-huh.
04-1360 +++$+++ 17202 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How many successful 1983 actions have there been --
04-1360 +++$+++ 17203 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I am not -- I am not aware of any. On the other hand, like Mr. Moran, I -- other than anecdotal evidence, I have no statistical evidence that the police are violating the knock-and-announce principle since the decision in Stevens.
04-1360 +++$+++ 17204 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you have not even one case that you can cite where a 1983 remedy was resorted to and was successful.
04-1360 +++$+++ 17205 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In Michigan, I don't. There are cases cited in our brief where, in fact, there are actions -- such actions brought. There are several recent decisions in the Seventh Circuit, for example, where qualified immunity was denied on a knock-and-announce violation in the cases in the district court for trial or settlement. And there may be many cases that don't make the reports, what actions are brought and settled.
04-1360 +++$+++ 17206 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you're not aware of any case --
04-1360 +++$+++ 17207 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I am not aware of any case -- -
04-1360 +++$+++ 17208 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- where anyone has recovered --
04-1360 +++$+++ 17209 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And, again, I think Mr. Moran correctly points out, in -- many of these cases are resolved by finding that the Richards v. Wisconsin exceptions have been met. It is not, to me, remarkable that there are not a lot of civil actions. I believe there are not a lot of violations, because, while no-knock entries may occur, they are justified, under Richards v. Wisconsin, in most cases. This case is an aberration.
04-1360 +++$+++ 17210 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On the no-knock warrant, do you agree that it's not possible to get one in Michigan?
04-1360 +++$+++ 17211 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, there is no statute in Michigan where one can go to the judge in advance and say, "Here are the facts, known to me already, before I even get to the scene, that should justify a no-knock." That doesn't exist in Michigan. Michigan follows Richards v. Wisconsin, and, in -- had case law, even in advance of that, which simply said, "Whether known in advance, or whether the facts occurred at the time of the execution of the warrant, if the Richards exceptions are met, you can go in without knocking and announcing." So, we do follow that rule. You just simply can't get advance judicial authorization. It doesn't exist. But it is certainly permissible, and it -- as Mr. Moran indicated, it happens on a fairly regular basis, because, unlike Mr. Moran, I believe the notion that -- even in this case, I'm not saying there was no violation; there was a violation, because the police didn't know in advance that the defendant was sitting in a chair with the cocaine in his pocket, on the chair in front of him, and a gun by his side. I think that he would have answered the door. It's highly speculative, and somewhat fanciful, in that circumstance.
04-1360 +++$+++ 17212 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do they get to make -- do they get to make "inevitable" arguments on their side? I mean, let's say, as what happened here, or as seemingly happened, the fellow is found near the chair with the drugs. Can't they argue, "Well, if you had knocked and you had waited 10 seconds, he would have gotten up from the chair and gone somewhere else"? And you wouldn't have been able to argue, at trial, "He was sitting in the chair with the drugs."
04-1360 +++$+++ 17213 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true, but the drugs were -- in this case, the drugs were in his pocket. So, it wouldn't have helped him.
04-1360 +++$+++ 17214 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There was something in the chair, right? I mean, the --
04-1360 +++$+++ 17215 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was --
04-1360 +++$+++ 17216 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- the gun, or what --
04-1360 +++$+++ 17217 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The gun was in the -- in the chair, but he was only convicted for the drugs in his pocket.
04-1360 +++$+++ 17218 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Hmm.
04-1360 +++$+++ 17219 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think he -- he could say, "If you would have -- I would have gotten up and answered the door; and, therefore, you wouldn't have had to come in without knocking, you wouldn't have had to break the door, you wouldn't have had to scare me."
04-1360 +++$+++ 17220 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You wouldn't have been able to tell the jury, "I was standing next to the chair, because if I had -- I obviously would have gotten away from the chair, because I knew that's where the gun was."
04-1360 +++$+++ 17221 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- that may well be. And I want to be clear, I am not here arguing that this Court should decide that there is no circumstance possible where something that occurs in the premises is not causally connected to the failure to knock and announce. All I'm asking the Court to decide is that causation is required before the exclusionary rule is implemented, and physical evidence found within a proper search of -- search of proper scope, pursuant to the warrant, that that is not causally connected to the -- to the knock-and-announce violation. There may be other --
04-1360 +++$+++ 17222 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, you -- so, you think it's possible that the defendant could argue that the evidence should be excluded because, "Had he knocked and announced, I would have run to the toilet and flushed it down, rather than" --
04-1360 +++$+++ 17223 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
04-1360 +++$+++ 17224 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- "answering the" --
04-1360 +++$+++ 17225 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I --
04-1360 +++$+++ 17226 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, why not?
04-1360 +++$+++ 17227 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the only thing he could --
04-1360 +++$+++ 17228 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's causal.
04-1360 +++$+++ 17229 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I think you have to tie the causal connection to the purposes -- as I have tried to indicated -- to the purpose, or purposes, served by the principle violated. What is the purpose of knocking and announcing? And I think -- Your Honor indicated -- it's to protect against injury to the police, injury of people inside, and property. It has no purpose to protect against the invasion of the privacy of the dwelling and the discovery of the evidence. In fact, if the police knew in advance that the defendant might flush the drugs down the toilet, they wouldn't have to knock and announce at all. So, I think we have to relate the causal question to, What is the principle violated? What purposes does it serve? And, in the case of knock-and-announce, it does not serve the purpose of allowing evidence to be destroyed. That, in fact, serves as an exception to knocking and announcing at all.
04-1360 +++$+++ 17230 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you say the purpose of knock-and-announce is?
04-1360 +++$+++ 17231 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This Court has identified it on several occasions as to avoid unnecessary violence to the property, avoid unnecessary possible injury to people, both to the officers who are executing the warrant and people inside, and to allow the person inside to prepare to answer -- as Mr. Moran indicated, if they might be in a state of undress or something, they could avoid that embarrassment.
04-1360 +++$+++ 17232 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, I take it your argument is that, except in cases in which the people inside the house are not dressed, or cases in which there is, in fact, a gun battle of some sort, that a knock-and-announce violation will, in fact, never be the cause of any damage at all.
04-1360 +++$+++ 17233 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It will never be the cause of the discovery of the physical evidence found --
04-1360 +++$+++ 17234 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no, it -- no, but it'll never be the cause of any compensable damage at all.
04-1360 +++$+++ 17235 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if a --
04-1360 +++$+++ 17236 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because I take it your argument is: what you can recover from requires causation. And what I mean by "causation" is the causation of the harms which the rule is intended to avoid.
04-1360 +++$+++ 17237 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-1360 +++$+++ 17238 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if the only harms that the rule is intended to avoid is the exposure of nakedness and violence, once inside, and there are cases without nakedness or without violence, then, in those cases, there will never be a recovery.
04-1360 +++$+++ 17239 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, in those cases, correct. In cases where there is violence, there will be recovery. In a case such as the instant one, where there is no nakedness, there is no violence, they simply opened an unlocked door, I would say, yes, there would be no recovery, in that circumstance; there would be no damages. There may be cases -- and this is why not -- I'm not arguing there was no knock-and-announce violation, in that the police shouldn't knock and announce, because, in different cases, the consequences may be dramatic, they may be severe, and damages may be severely assessed.
04-1360 +++$+++ 17240 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, basically, your rule is, the police are entitled to take the chance. If they -- if they get inside, and people have got their clothes on and there's no gun battle, no problem; nothing that the police are exposed to, either by an exclusionary rule or by a civil recovery. And if they want to take that chance, if they want to take the chance that somebody will not be dressed or a gun will be pulled, basically that's their option.
04-1360 +++$+++ 17241 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think, as in other situations where this Court does not apply the exclusionary rule, simply on a deterrence basis -- because the Court does not always apply the exclusionary rule, even when there would be deterrence -- that that is correct.
04-1360 +++$+++ 17242 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, that's not true. I mean, there are going to be situations, or at least possible, where evidence is going to be a -- causally connected to a violation of the knock-and-announce rule, right? The situation -- the warrant is because these people were involved in a shootout with the -- you know, the Johnson gang; they knock the door down and somebody yells, "Look out, it's the Johnson gang."
04-1360 +++$+++ 17243 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1360 +++$+++ 17244 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And if they had knocked and announced, and "It's the police," they wouldn't have that statement that's incriminating. Now, you would agree that that statement would be excluded because of the violation, right?
04-1360 +++$+++ 17245 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, exactly. That was precisely the point I was going to make, in terms of a hypothetical. We're not arguing -- as I tried to indicate earlier, we're not arguing that you need to resolve every question today about what is, or is not, causally related. And there are circumstances where a spontaneous declaration -- you know, the police break through the door, and the defendant says, "The drugs are in the closet," and you want to use that declaration to tie him to the drugs -- that may well be causally connected. All we're asking today is for this Court to decide that the items -- the physical evidence found within a proper scope, a search of proper scope of the warrant that's being executed -- is not causally connected. Other questions of spontaneous declarations, tying the defendant by position to the chair, those may present different issues. But the drugs that were named in the search warrant as items to be searched for and seized are not causally connected; they are the fruit of the execution of the judicial command, not of the knock-and-announce violation.
04-1360 +++$+++ 17246 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I can understand the requirement there be causal connection. Are there cases in which courts have held that there was a knock-and-announce violation, and there is a general remedy of exclusion, unless -- except when there's a causal connection; but, in fact, the evidence was admitted because it was not causally connected to the entry?
04-1360 +++$+++ 17247 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not aware of any.
04-1360 +++$+++ 17248 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, I can understand the hypothetical, but it seems to me it's really a hypothetical.
04-1360 +++$+++ 17249 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yeah. And I think the reason that that exists is because, up til today -- and Mr. Moran's correct, most courts go the other way -- up until the Stevens case, the assumption had been -- and I think the assumption has come from Miller and Sabbath -- the assumption has been, if there's a knock-and-announce violation, you exclude the evidence. So, questions of causation have not been explored until the Stevens case, and then the Seventh Circuit, in several opinions, has also reached the same conclusion. But I think Sabbath and Miller present very different circumstances. Sabbath and Miller, as the Court will recall, were arrest cases. And the arrest situation does not translate into the execution of a search warrant, because knock-and-announce serves a different purpose, an additional purpose, in the arrest situation, that is not served when -- in the search situation.
04-1360 +++$+++ 17250 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, I see your argument now. I think your argument is, most of the fourth amendment rules are really designed to prevent warrantless entries. But this one isn't.
04-1360 +++$+++ 17251 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-1360 +++$+++ 17252 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This one is designed to prevent damage to property --
04-1360 +++$+++ 17253 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-1360 +++$+++ 17254 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- et cetera. So, let's not have the exclusionary rule and rely on the damage remedy where that kind of thing actually occurs, which isn't often.
04-1360 +++$+++ 17255 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-1360 +++$+++ 17256 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if we buy that principle, suppose we were to apply it in the Miranda area -- purpose of a Miranda warning is really to make certain he can have a lawyer, if he wants one, for example. So, now we prove this guy wouldn't have asked for a lawyer anyway. All the evidence comes in. I mean, it's an interesting principle. I see the logic. But it seems to me to have a lot of implications that this Court has never bought.
04-1360 +++$+++ 17257 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it's much more speculative in the -- in the fifth-amendment area, but I think --
04-1360 +++$+++ 17258 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I can't think of any other area, fifth or fourth, where we've bought it. And I've tried to explain, in the question, why we haven't bought it. Now, you go ahead.
04-1360 +++$+++ 17259 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I think to not accept causation as a requirement, which I think this Court has always done -- as I said at the outset, this Court has said that implementation of the exclusionary rule is premised on the evidence being the product of the police misconduct. To not do that, to not have a causation requirement, I believe, severs this Court's current exclusionary-rule doctrines from its moorings. There are many circumstances that this Court has, at this point, at least, seen fit to rest with the lower courts, such as the execution of a search warrant. You search within proper scope, you're looking for computer monitors, you find them, but, as you're executing, you open a desk drawer and you shut it, you exceed the scope of the warrant. The law is pretty uniform, currently, that you don't suppress the computer monitors because you exceeded the scope by opening the drawer. If you found drugs in the drawer, you make -- you'd exclude those. But you don't exclude the monitors, because there's not a causal connection between the wrong in exceeding the scope of the warrant and the discovery of the monitors. All those cases are up for grabs again if this Court severs the causation requirement from the application of the exclusionary rule. And that's just one example; there are others. This Court has always required that there be a causal connection, and I believe that it should simply continue to do so. We're not asking this Court to overrule any cases, to create any really new principles, we're simply asking this Court to understand that Sabbath and Miller were knock-and-announce for arrest. With an arrest situation, if a person surrenders at the door, you don't go in and search the premises thoroughly. There's a different purpose served in arrest. With a search warrant, knock-and-announce has no purpose of protecting the privacy of the dwelling itself with the discovery of the items named in the warrant, and they shouldn't be suppressed. Things that are causally connected can be left to an argument that may be made by counsel in different situations, but, as to the items named in the warrant -- contraband, fruit, spirits, instrumentalities -- that should not be suppressed. It is simply not causally connected to the entry, and we would ask this Court to so hold. Thank you.
04-1360 +++$+++ 17260 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Counsel. Mr. Salmons.
04-1360 +++$+++ 17262 +++$+++ FALSE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The knock-and-announce rule, unlike the warrant and probable cause requirements, does not protect the individual's privacy interest in the items to be searched, and does not relate to the officer's authority to conduct the search and obtain the evidence. An unannounced or premature entry, therefore, does not detract from the officer's legal authority reflected in the warrant to enter and conduct a search. Instead, as this Court held in Segura, an untainted warrant provides an independent source for the search, even where the entry is illegal. There was only one entry in the Segura case, since the officers remained in the apartment until a warrant was finally obtained.
04-1360 +++$+++ 17263 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It depends, of course, on whether you -- what you're doing. Now I see what you're doing. You're applying a kind of Palsgraf causation analysis within the risk -- I think that's what you're doing -- to saying it's outside, it's not a cause. You're saying -- you don't say it's not a necessary condition of his being there. It is. You do say, "Well, the being-in-the-room-there is not within the risk, the reason for which we have a knock-and-announce rule." But, of course, that's a matter of judgment. I mean, you could say the purpose of the cause -- of the knock-and-announce rule is to keep people out of there without knocking and announcing. And if that's the purpose of it, it's right within the risk, right cause.
04-1360 +++$+++ 17264 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
04-1360 +++$+++ 17265 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You just are looking at the harms that his being there in that room without announcing might bring about. That doesn't mean that's why we don't have the rule. We have the rule to keep him out of there without announcing.
04-1360 +++$+++ 17266 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, there are -- there are several reasons why the Court has -- the Court has articulated several reasons for why there is the knock-and-announce rule. We think the important point, though, with regard to Segura case is that the entry, in Segura, was unlawful both because the officers did not announce and because they did not have a warrant. They, nonetheless, stayed there for 20 hours, and, when they finally did obtain a warrant, they conducted the search. And this Court had no difficulty in saying that, even though the initial entry was unlawful, the warrant-authorized search -- the warrant was an independent source for the search, and that the legality with regard to the initial entry was, quote, "wholly irrelevant to the evidence that was obtained pursuant to the warrant." And we would submit that it would be an odd fourth amendment rule that would allow admission of the evidence where the officers failed to obtain a warrant. They entered without a warrant and without announcement, and only later obtained one, as in Segura; and then suppress all evidence, in this case, where the officers did obtain a warrant in advance, and their only illegality was the much more minor one of entering a few moments prematurely.
04-1360 +++$+++ 17267 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What was the --
04-1360 +++$+++ 17268 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Nothing in this Court's cases --
04-1360 +++$+++ 17269 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm sorry, I didn't mean to interrupt.
04-1360 +++$+++ 17270 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, that's fine, Your Honor.
04-1360 +++$+++ 17271 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I was going to say, What was -- what were the grounds upon which the warrant, in Segura, was obtained?
04-1360 +++$+++ 17272 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The warrant, in Segura, was obtained by -- based on evidence that was in existence prior to the unlawful entry, so that it was an untainted warrant.
04-1360 +++$+++ 17273 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, it didn't -- it didn't depend on the entry or anything gained as a result of the entry, right?
04-1360 +++$+++ 17274 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, of course, the officers -- once that warrant was obtained, officers would have to enter the apartment in order to conduct a search --
04-1360 +++$+++ 17275 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right, but the --
04-1360 +++$+++ 17276 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- here, except for the fact that --
04-1360 +++$+++ 17277 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- but the --
04-1360 +++$+++ 17278 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- they had already entered illegally and were already present illegally --
04-1360 +++$+++ 17279 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right, but the warrant --
04-1360 +++$+++ 17280 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in the apartment.
04-1360 +++$+++ 17281 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the warrant -- the warrant itself didn't depend on anything they had gained as a result of the entry. There was no --
04-1360 +++$+++ 17282 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct --
04-1360 +++$+++ 17283 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- kind of causal --
04-1360 +++$+++ 17284 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in Segura.
04-1360 +++$+++ 17285 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- continuum there.
04-1360 +++$+++ 17286 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's absolutely correct, and that's --
04-1360 +++$+++ 17287 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, you do --
04-1360 +++$+++ 17288 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't --
04-1360 +++$+++ 17289 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- a requirement for --
04-1360 +++$+++ 17290 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't that the difference, though, with this case? Because, here, there is a causal continuum, at least, as Justice Breyer said, a but-for causal continuum. They wouldn't have been in the apartment but for the entry. And so, the authority of the warrant and the manner of executing the warrant are not divisible the way they were in Segura.
04-1360 +++$+++ 17291 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, with respect, I think that's -- it would be an improper reading of Segura. There was an illegal entry, in Segura, that was just as necessary in order to conduct the search and obtain evidence in that case as there was at premature entry here.
04-1360 +++$+++ 17292 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, in Segura, the court issuing the subsequent warrant says, "You can -- you can go in there and do this." The court -- by the way, I -- maybe this makes it even easier -- did the court, in Segura, know that they were in the apartment?
04-1360 +++$+++ 17293 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor.
04-1360 +++$+++ 17294 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-1360 +++$+++ 17295 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Their -- they had no knowledge of the illegality, and the evidence that was -- that was the basis for the affidavit for the warrant was untainted by the illegal entry. But, of course, the same is true here, there was -- there is no allegation at all that --
04-1360 +++$+++ 17296 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no --
04-1360 +++$+++ 17297 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the warrant in this case -- -
04-1360 +++$+++ 17298 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the difference is --
04-1360 +++$+++ 17299 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- is tainted.
04-1360 +++$+++ 17300 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right, look, this -- you know, I'd appreciate your explaining this -- this seems to me what you're saying in your brief was the inevitable discovery. The inevitable-discovery rule, in my -- the way -- the way I've thought of it, and I'd like you to correct me if I haven't thought of it correctly -- to use a kind of analogy, it's like a primitive tribe that beats a tom-tom every morning so the sun comes up. Hey, the sun's going to come up anyway, and the bodies are going to be discovered anyway, in those cases. And, in Segura, the warrant is going to be issued anyway. So, it isn't a question of whether it would have been issued if they had behaved properly, it's a question of what will really happen in the absence of the illegality.
04-1360 +++$+++ 17301 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1360 +++$+++ 17302 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, that's what I thought inevitable discovery here was, and, in the absence of these people entering the apartment illegally, they wouldn't have found a thing, because --
04-1360 +++$+++ 17303 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor --
04-1360 +++$+++ 17304 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- there was nothing else in motion.
04-1360 +++$+++ 17305 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, with respect, that is -- that is directly at odds with the way the Court, in Segura, approached --
04-1360 +++$+++ 17306 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, which --
04-1360 +++$+++ 17307 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the question.
04-1360 +++$+++ 17308 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- case is contrary to what I said?
04-1360 +++$+++ 17309 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think Segura is contrary to that.
04-1360 +++$+++ 17310 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Segura?
04-1360 +++$+++ 17311 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think Murray --
04-1360 +++$+++ 17312 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You have just said --
04-1360 +++$+++ 17313 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- is contrary to that.
04-1360 +++$+++ 17314 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that, in Segura, they would have gotten in, anyway, under a legal warrant that had nothing whatsoever to do with the illegal entry.
04-1360 +++$+++ 17315 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In fact, that is precisely the analysis --
04-1360 +++$+++ 17316 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The sun rose, anyway.
04-1360 +++$+++ 17317 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that's precisely the analysis the Court ordered -- took in Segura. It said, if there had been no illegal entry, the officers --
04-1360 +++$+++ 17318 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
04-1360 +++$+++ 17319 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- would have obtained the evidence --
04-1360 +++$+++ 17320 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Exact --
04-1360 +++$+++ 17321 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the same way --
04-1360 +++$+++ 17322 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. Well --
04-1360 +++$+++ 17323 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- because they had --
04-1360 +++$+++ 17324 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- not "would have." Did.
04-1360 +++$+++ 17325 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your -- I'm just informing Your Honor what the Segura case says. It says the court -- the courts would have found -- excuse me -- the officers would have found the same evidence that they found pursuant to the warrant if they had complied with the fourth amendment. That's because the court viewed the -- that warrant as a separate independent source for the authority to enter and conduct a search. One would have to posit, I guess, that the officers in this case, if they -- if they would rather not execute the warrant than delay a few additional moments before entering, but I think that would not be a very realistic hypothesis.
04-1360 +++$+++ 17326 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then your --
04-1360 +++$+++ 17327 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Now, with regard --
04-1360 +++$+++ 17328 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- position is that you never -- if you have a warrant, then you can seize what the warrant lists. So, if you have a warrant, then there is never a reason that the police would have to knock and announce, because the warrant gives them independent authority to enter. That seems to be what you're saying, that as long as you have a warrant, there -- the knock-and-announce does not have to be complied with.
04-1360 +++$+++ 17329 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. The knock-and-announce requirement is -- we take no issue with that. That is required by the fourth amendment. With regard --
04-1360 +++$+++ 17330 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Well --
04-1360 +++$+++ 17331 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to deterrence --
04-1360 +++$+++ 17332 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ -- but in this very case you had an officer who said it was his regular policy --
04-1360 +++$+++ 17333 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1360 +++$+++ 17334 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ -- never to knock and announce --
04-1360 +++$+++ 17335 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's not --
04-1360 +++$+++ 17336 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ -- to just go in. So, if the rule you propose is adopted, then every police officer in America can follow the same policy. Is there no policy of protecting the homeowner a little bit --
04-1360 +++$+++ 17337 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course the --
04-1360 +++$+++ 17338 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ -- and the sanctity of the home --
04-1360 +++$+++ 17339 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course there is --
04-1360 +++$+++ 17340 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ -- from this immediate -- -
04-1360 +++$+++ 17341 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Your Honor, and that is not --
04-1360 +++$+++ 17342 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ -- entry?
04-1360 +++$+++ 17343 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- our position. And we, respectfully, would argue that that's not an appropriate way to conduct the deterrence analysis. Even just on the terms of deterrence, we think that suppression here would be a disproportionate remedy. And that's because, as this Court has repeatedly recognized, the officers already have an incentive, inherent in the nature of the circumstances, to announce and delay some period of time before entry. Now, there may be --
04-1360 +++$+++ 17344 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what --
04-1360 +++$+++ 17345 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- not --
04-1360 +++$+++ 17346 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wait a minute. What is this incentive inherent in the circumstances?
04-1360 +++$+++ 17347 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not to be mistaken for an intruder and shot at, Your Honor.
04-1360 +++$+++ 17348 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it doesn't seem to work.
04-1360 +++$+++ 17349 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1360 +++$+++ 17350 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, you've got -- this is a case in which the officer testifies, "It never works, I always go in."
04-1360 +++$+++ 17351 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's not really -- I mean, to be fair, Your Honor, that's not what he testified to, exactly. What he said was, he's been shot at several times, and he went in early, in this case, in part because of his safety concerns. But he didn't speak to any broader policy.
04-1360 +++$+++ 17352 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When is it going --
04-1360 +++$+++ 17353 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, in any event, the --
04-1360 +++$+++ 17354 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, what reason do we have to believe that this incentive inherent in circumstances is ever going to work in the absence of an exclusionary rule?
04-1360 +++$+++ 17355 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think -- I think there are several reasons. One -- and, again, this Court -- these are -- all of the things I'm going to list come from this Court's cases, including Nix and Murray and Segura, where the Court has applied the doctrines we ask the Court to apply here. And what you have is, you have the inherent incentive to knock and announce, because of their own safety concerns. We think the only thing that might not cover, in terms of deterrence, would be the additional few moments you may want them to wait. They will announce, and they will delay some period of time. Now, in the absence of concerns about safety or destruction of evidence, the officers have nothing to gain by entering prematurely. And so, in doing a deterrence analysis, I think it's important to keep that in mind. It's not like there's a huge gain for the officers --
04-1360 +++$+++ 17356 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why don't they --
04-1360 +++$+++ 17357 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- when they don't have legitimate concerns.
04-1360 +++$+++ 17358 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why don't they have something to gain? If they're right that there is evidence inside, they gain. They're -- I mean, they're perfectly rational --
04-1360 +++$+++ 17359 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1360 +++$+++ 17360 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- in this. They gain a greater chance of getting that evidence than if they let a few seconds elapse and the evidence can be flushed away.
04-1360 +++$+++ 17361 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To be sure, Your Honor, there are times when they may miscalculate the nature of the concerns about safety and destruction of evidence, but, in cases where there aren't those concerns, they have nothing to gain. And, in addition, entering prematurely may make them a defendant in 1983 or Bivens actions, which I'm sure that no officer --
04-1360 +++$+++ 17362 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ For --
04-1360 +++$+++ 17363 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- relishes and --
04-1360 +++$+++ 17364 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ For which there is no record of any recovery in any court in the United States, isn't that correct?
04-1360 +++$+++ 17365 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ May I answer, Your Honor?
04-1360 +++$+++ 17366 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Sure.
04-1360 +++$+++ 17367 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I would -- I would disagree with that. And I would point the Court, in particular, to a recent case out of the Seventh Circuit, Jones versus Wilhelm. The seventh circuit has announced the position -- it decided the position that we advocate. There are many cases, Your Honor -- the courts -- the courts are replete with them -- where people --
04-1360 +++$+++ 17368 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank --
04-1360 +++$+++ 17369 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- bring those types of claims, and win, and then they settle.
04-1360 +++$+++ 17370 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Counsel.
04-1360 +++$+++ 17371 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
04-1360 +++$+++ 17372 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Moran, you have 4 minutes remaining.
04-1360 +++$+++ 17374 +++$+++ FALSE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. First of all, as to the evidence that is causally connected to the knock-and-announce violation, there are two reasons why the remote possibility of such evidence will never deter police officers from violating the knock-and-announce requirement. The first is that it's very remote. I'm not aware of a single case in American history where there has been identified such evidence that is directly causally related only to the knock-and-announce violation. But the second reason, more fundamental, is that even if there were such evidence, by definition the possibility of finding such evidence will not deter the police from committing a knock-and-announce violation, because they wouldn't have found that evidence had they complied with the knock-and-announce requirement. In other words, the police would only gain that evidence by committing the knock-and-announce violation, so there would be nothing lost in going ahead and risking an excited utterance that they wouldn't be able to use, because, by definition, they wouldn't be getting that excited utterance, anyway. I think it's important, with the Solicitor General's brief, to rebut the claim that Miller and Sabbath had something to do with the fact that there was no warrant in those cases. Nothing in Miller and Sabbath turned on the absence of a warrant. And, in fact, in Miller the Court specifically said, "The requirements stated in Semayne's case still obtains. It applies, as the Government here concedes, whether the arrest is to be made by virtue of a warrant or when officers are authorized to make an arrest for a felony without a warrant." The Government conceded, in Miller, that whether there was a warrant or not had nothing to do with the knock-and-announce violation in that case.
04-1360 +++$+++ 17375 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought the Government's distinction was based on the fact that they were arrest cases. I thought that's the distinction they were making.
04-1360 +++$+++ 17376 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Perhaps I misread their brief, Justice Scalia, but I thought it was that there was an absence of a warrant. Of course, this is an arrest case, as well. The -- Mr. Hudson was seized, and was searched, incident to arrest. And so, this was also an arrest case, much like Miller and Sabbath. As for the causal-connection argument, if this Court were to accept it, I listed, in my principal brief, a litany of cases that I think would have to be overruled -- Katz, Knowles, Silverthorne Lumber -- for that matter, Kyllo. All those cases say that it doesn't matter that the Government has a clear, lawful route to get the evidence; the fact that they didn't follow that clear, lawful route prevents the Government from using that evidence. And it's impossible to explain how Mr. Baughman's causation theory is consonant with all of those cases.
04-1360 +++$+++ 17377 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well --
04-1360 +++$+++ 17378 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think --
04-1360 +++$+++ 17379 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, isn't the -- isn't the reason it's consonant is because, in those cases, there is a -- the connection, in terms of the purposes of the rule that was violated and the evidence that was seized?
04-1360 +++$+++ 17380 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, I think the same thing applies here. I think that the knock-and-announce rule is about the sanctity of the home. And this Court could not have said it any more clearly in Wilson, that the reasonableness of a search or seizure inside a home is connected to the method of entry. In fact, the Court said it three times, in Wilson, in various ways. And so, I think it is the purpose of the knock-and-announce rule, is to protect the homeowner's right of privacy against shock, fright, and embarrassment that can come with a precipitous police entry.
04-1360 +++$+++ 17381 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But not the general privacy of the home, because you don't dispute that if he had waited an additional 4 seconds, he could have entered the home and executed the warrant.
04-1360 +++$+++ 17382 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, we don't dispute that at all, Mr. Chief Justice. Finally, I have to ask why this Court has decided all these knock-and-announce cases in the last 10 years, if my opponents are right. This Court shouldn't have -- they're all criminal cases, and this Court should have simply said the Petitioners or Respondents, as the case may be, cannot obtain the relief they are seeking, because the knock-and-announce rule is not causally related to the evidence that they're trying to suppress. And so, if this Court were to adopt my opponent's position, the knock-and-announce rule will become a dead letter. There will be virtually no cases, there will be virtually no more development of this rule. This Court would have been wrong in Miller, it would have been wrong in Sabbath, and it was wrong to reach the substantive constitutional questions it reached in Banks, Richards, Ramirez, and Wilson. And all the other courts, the -- virtually every State currently suppressing evidence seized after a knock-and-announce -- well, they would have to be wrong, too. And so, a lot of courts, including this Court, have been wrong a lot of times, if my opponent is correct. Finally, one last word on Segura. Segura is the sort of case where one can make a respectable inevitable-discovery -- in fact, a winning inevitable-discovery or independent-source argument. But the key thing in Segura is, this Court did not disturb the fact that the evidence that was seized during the initial entry was suppressed, because that was directly connected to the unlawful entry. And so, the evidence that the police initially seized, before the 19-hour wait in Segura, was suppressed. Thank you, Mr. Chief Justice.
04-1360 +++$+++ 17383 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Counsel. The case is submitted.
04-1360b +++$+++ 17388 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++  +++$+++ We'll hear reargument this morning in Hudson v. Michigan. Mr. Moran.
04-1360b +++$+++ 17390 +++$+++ FALSE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: For centuries the knock and announce rule has been a core part of the right of the people to be secure in their houses from unreasonable searches and seizures. It reflects the notion that when the government has the right to enter a house, whether to perform an arrest, to search for evidence, or to seize goods, that the people should have the right to answer the door in a dignified manner, except in an emergency, and to avoid the unnecessarily gratuitous embarrassment and shock that often follows a precipitous police entry.
04-1360b +++$+++ 17391 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So wouldn't it be more accurate to say that it's protected the right to be free from unreasonable entry as opposed to unreasonable search and seizure?
04-1360b +++$+++ 17392 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this Court has recognized in Wilson, consistent with the common law authorities, Mr. Chief Justice, that they are connected, that the entry directly affects the reasonableness of the search and seizure that occurs within. And that's why this Court in Miller and in Sabbath suppressed the evidence following knock and announce violations. But in Wilson, this Court directly stated that the common law, the Fourth Amendment, -- the common law that informs the Fourth Amendment, directly demonstrates that the Framers thought that the method of entry directly affects whether a search or seizure inside a home is reasonable.
04-1360b +++$+++ 17393 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So -- so in your view, there has to be a 4- to 6-hour search for complex financial records, business documents. There's a warrant. The search is otherwise proper. They forget to knock. They say, oh, you know, we are police officers. There's a discussion for a while. But -- anything seized after that is -- must be suppressed.
04-1360b +++$+++ 17394 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If there is --
04-1360b +++$+++ 17395 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It just seems to me in the hypothetical I put -- and there's obviously a reason I put it -- is there's just no causal link between the -- the suppression and -- and the failure to knock.
04-1360b +++$+++ 17396 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the evidence inside -- the evidence is seized inside. The seizure of the evidence inside is directly related to the manner of entry, just as there's a direct causal link between when the officers come in without a warrant when they should have gotten a warrant first. They thought there was an exigent --
04-1360b +++$+++ 17397 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but you say directly related. That -- that assumes the very point that I have in mind. I don't know why it's directly related.
04-1360b +++$+++ 17398 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, going back to Wilson, this Court said in Wilson, if I might quote from Wilson, that the -- the common law search and seizure leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announce their presence and authority prior to entering.
04-1360b +++$+++ 17399 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It depends -- it depends in part.
04-1360b +++$+++ 17400 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It depends in part, certainly. There are other factors as well, but the reasonableness of the search depends in part. The issue --
04-1360b +++$+++ 17401 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Counsel, what -- what do you do with our opinion in -- in 1986 in Segura v. United States, which seems to me to contradict your assertion that you cannot separate, for purposes of the exclusionary rule, the manner of entry from the search? In that case, the -- the policemen entered without a search warrant. So the entry was clearly a violation. They left two officers in the room and other officers went back and got a search warrant. When they returned with the search warrant, the two officers who were in the room proceeded to do a search, and we admitted the evidence. It seems to me that in that case, we -- we did succeed in -- in separating the -- the entry from the subsequent search, and I don't know why -- why we can't do the same thing here.
04-1360b +++$+++ 17402 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because there were exceptional circumstances, Justice Scalia, in Segura.
04-1360b +++$+++ 17403 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What -- what were the exceptional circumstances?
04-1360b +++$+++ 17404 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ A 19-hour delay and a warrant that was obtained that had nothing to do with the initial entry. That was in no way dependent on the initial entry.
04-1360b +++$+++ 17405 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We're still, it would seem to me -- I don't know -- the warrant wasn't dependent on the initial entry? You could also say the initial entry wasn't the product of the -- of the later warrant.
04-1360b +++$+++ 17406 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The initial entry was not the product of the later warrant, but once this Court ruled --
04-1360b +++$+++ 17407 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And therefore was unlawful.
04-1360b +++$+++ 17408 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. The -- the initial entry wasn't lawful.
04-1360b +++$+++ 17409 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But we didn't hold -- but we didn't hold that.
04-1360b +++$+++ 17410 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but this -- the Government in Segura never contested the fact that the evidence that was seen and seized during the initial entry should be suppressed. And that's all we're asking for here.
04-1360b +++$+++ 17411 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Excuse me? No, I don't understand that.
04-1360b +++$+++ 17412 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ When the officers went in initially in Segura, some evidence was seen and seized at that time, and the Government did not contest that that evidence should not --
04-1360b +++$+++ 17413 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I'm talking about only the evidence that -- that was the product of the search conducted after the warrant was delivered.
04-1360b +++$+++ 17414 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
04-1360b +++$+++ 17415 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that evidence was admitted in.
04-1360b +++$+++ 17416 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, but the --
04-1360b +++$+++ 17417 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Even though the entry of those officers was an unlawful entry.
04-1360b +++$+++ 17418 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The entry -- the initial entry was an unlawful entry. When they came back with the warrant --
04-1360b +++$+++ 17419 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, no, no. The -- there was no subsequent entry. You said the initial entry was unlawful. Those officers stayed there. Their presence there was the product of an unlawful entry.
04-1360b +++$+++ 17420 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Their presence was, yes.
04-1360b +++$+++ 17421 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Their presence was the product of an unlawful entry, and nonetheless, we admitted in the -- the material that they obtained in the search after a warrant had been obtained.
04-1360b +++$+++ 17422 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I read Segura as saying that the presence -- the later presence of the warrant, which was in no way tainted by the initial entry, made the officers' presence in the home retroactively lawful from that point. It was unlawful until that point, which is why the Government did not contest the -- the point that all the evidence that was seized during the initial entry up to the point when the warrant was issued had to be suppressed. That's all we're asking for here. I can imagine hypotheticals in which you have a knock and announce violation and then something happens like in Segura or like in Murray, where you have later action that creates an independent source. But in your typical --
04-1360b +++$+++ 17423 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Suppose the -- suppose the officer -- excuse me, we forgot to knock, but we are police officers. We do have a warrant. We're going to proceed with a search. Please don't be alarmed. We're going to -- does that do it?
04-1360b +++$+++ 17424 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That might do it. That would be a different case than the case we have here --
04-1360b +++$+++ 17425 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but your -- your point is -- is there -- is that they have to go out and come back in again.
04-1360b +++$+++ 17426 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You would have to create some sort of analogy to Murray and Segura. Murray and Segura are exceptional cases. There are very rare cases when the Government breaks in and then realizes we shouldn't have done that. We should go get a warrant.
04-1360b +++$+++ 17427 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree. Segura -- I forget what it is in torts. It's kind of a supervening, independent cause or something like that.
04-1360b +++$+++ 17428 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes. And -- and you can have -- imagine such hypotheticals in the knock and announce context. And in the Moreno case in the Ninth Circuit, you have one where you have a knock and announce violation committed in the outer door. No evidence is found in the outer door, but then the officers properly knock and announce at the inner door, and the Court in the Ninth Circuit held that that was proper to seize that. We have no problem with that. That -- that seems like a proper result because ultimately the purposes of the knock and announce rule were vindicated when the officers knocked and announced at the inner door before -- before forcing entry.
04-1360b +++$+++ 17429 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Moran, how -- how long do you think the officers had to wait before they could have entered?
04-1360b +++$+++ 17430 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this case?
04-1360b +++$+++ 17431 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1360b +++$+++ 17432 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ From Banks, somewhere closer to 15 seconds. 15 to 20 seconds was considered --
04-1360b +++$+++ 17433 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What would -- if they had done that, what would have been different from what happened in this case?
04-1360b +++$+++ 17434 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Hudson presumably would have gotten up from his chair, would have come to the door, would have admitted the officers, and then after --
04-1360b +++$+++ 17435 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Why do you presume that? Someone sitting in a chair with gun -- with a gun and the drugs you say would have gotten up and said, oh, it's the police. Let's see what they want?
04-1360b +++$+++ 17436 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We presume that people act lawfully in response to commands from the police. We do not presume that people will act unlawfully. If the police have evidence or information that someone will, in fact, act unlawfully by trying to dispose the evidence or by --
04-1360b +++$+++ 17437 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Isn't a good sign of what might have happened what actually happened when the police came in, which was there was an effort to hide the evidence?
04-1360b +++$+++ 17438 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The record does not disclose any effort on Mr. Hudson's part to hide any evidence, Your Honor.
04-1360b +++$+++ 17439 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I thought -- where -- where were the drugs found?
04-1360b +++$+++ 17440 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The rocks of crack cocaine, for which he was convicted, were found in his left front pants pocket.
04-1360b +++$+++ 17441 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Where was the gun found?
04-1360b +++$+++ 17442 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The gun was in the chair.
04-1360b +++$+++ 17443 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the chair?
04-1360b +++$+++ 17444 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the chair. There was no evidence that there was any secreting of evidence in this case.
04-1360b +++$+++ 17445 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Is there any reason to suppose that if the officers had waited 15 seconds instead of the 3 to 4, that they wouldn't have found the same evidence?
04-1360b +++$+++ 17446 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's always possible, Your Honor, but we don't presume that. Just as in Segura, the Court said --
04-1360b +++$+++ 17447 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the only -- the only reason they wouldn't have found the same evidence, I take it, is if they -- if -- if the defendants had had additional time to dispose of it.
04-1360b +++$+++ 17448 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't contest that they would have found the same evidence, no. We do not argue that Mr. Hudson or any of the other people in the house would have destroyed the evidence.
04-1360b +++$+++ 17449 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Is --
04-1360b +++$+++ 17450 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We certainly don't make that argument.
04-1360b +++$+++ 17451 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Is in the chair the same thing as on the chair?
04-1360b +++$+++ 17452 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-1360b +++$+++ 17453 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You tell me something is in the chair. Did they stuff it -- stuff it in the cushion or what?
04-1360b +++$+++ 17454 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's not really clear from the record, Justice Scalia.
04-1360b +++$+++ 17455 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, inside it --
04-1360b +++$+++ 17456 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's in -- in the chair.
04-1360b +++$+++ 17457 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it's pretty clear you don't talk of something as being in the chair. It's on the chair unless you stuff it in the chair. I assume he stuffed it behind a pillow or something.
04-1360b +++$+++ 17458 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not completely clear exactly where in the chair it was.
04-1360b +++$+++ 17459 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ English is English. You said it was in the chair.
04-1360b +++$+++ 17460 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the chair.
04-1360b +++$+++ 17461 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
04-1360b +++$+++ 17462 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ 49 of the 50 States currently suppress evidence following knock and announce violations, just as this Court did in -- in Miller and Sabbath.
04-1360b +++$+++ 17463 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what do you think is the standard for determining what sort of causal connection there has to be in order to have suppression here?
04-1360b +++$+++ 17464 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We go back to the Wong Sun fruits test. Is the evidence that was recovered the direct fruit of the violation? In other words, is there a clear, logical connection? Now, my opponent --
04-1360b +++$+++ 17465 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What's the purpose of the causal connection requirement? What's the reason for having it?
04-1360b +++$+++ 17466 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's so -- it's so that there is a -- an obvious connection. Before the court takes the step of -- of excluding evidence, there should be some connection, some clear connection, between the violation and the evidence recovered. But my --
04-1360b +++$+++ 17467 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And what's the reason for requiring a clear connection?
04-1360b +++$+++ 17468 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I suppose that it's simply the matter of logic, that evidence that's completely unrelated to a violation nobody would think should be -- should be excluded. But evidence --
04-1360b +++$+++ 17469 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But why?
04-1360b +++$+++ 17470 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's -- it's unrelated. So if, for example, the police break into my house and -- and find evidence -- find nothing in my house -- they illegally break into my house, but then they -- they do a proper warrant search of my office and find evidence, I -- I don't -- I don't see any connection between the illegal search of my house and the legal search of my office, assuming that it was not the fruit of the illegal search of my house.
04-1360b +++$+++ 17471 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But why? Isn't the reason just a -- just a question of crafting an appropriate remedy for -- an appropriate deterrence --
04-1360b +++$+++ 17472 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1360b +++$+++ 17473 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- for violations?
04-1360b +++$+++ 17474 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly. It -- the whole point is deterrence. And so you wouldn't deter the officers who illegally broke into my house by excluding the evidence from my office if -- if -- it may even well be different --
04-1360b +++$+++ 17475 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure you would. Sure you would.
04-1360b +++$+++ 17476 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it may well even be a different --
04-1360b +++$+++ 17477 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I mean, you'd deterred him more if you threw the whole case out, but we don't do that.
04-1360b +++$+++ 17478 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, we don't.
04-1360b +++$+++ 17479 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1360b +++$+++ 17480 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We -- we limit --
04-1360b +++$+++ 17481 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I mean, we -- we insist that the deterrence somehow be related --
04-1360b +++$+++ 17482 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We do.
04-1360b +++$+++ 17483 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to the -- and -- and the related usually means that the acquisition of the evidence was the product of the violation. It was caused by the violation. And -- and for that reason, we keep it out. And here, it's -- it's hard to say that this was caused by the fact that they -- that they entered in a few seconds too soon. So he would have answered the door and they would have seen the stuff.
04-1360b +++$+++ 17484 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What the knock and announce violation causes, Justice Scalia, is the officer to be illegally in the home. Going back to the common law authorities, the courts have long recognized -- American courts have long recognized that an officer who illegally enters a home, even with a valid writ or a valid piece of paper allowing him to be in the home, if the manner of entry is illegal, he is a trespasser. His entry is -- is void ab initio. And so in that sense, the entry is the cause of the illegal --
04-1360b +++$+++ 17485 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Although you say it can be retroactively validated.
04-1360b +++$+++ 17486 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ After Segura --
04-1360b +++$+++ 17487 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, in Segura, you can retroactively validate it by -- by getting a warrant afterwards. Could it be -- have been retroactively validated by knocking and announcing afterwards? I'm -- I'm sorry we came in too soon, and they run back to the door and they knock and announce and wait -- wait 10 seconds.
04-1360b +++$+++ 17488 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Again, I --
04-1360b +++$+++ 17489 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Would that do the job?
04-1360b +++$+++ 17490 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I concede that it's possible that you can come up with a Segura-type hypothetical. I think the easiest one is the Moreno case from the Ninth Circuit.
04-1360b +++$+++ 17491 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The hypothetical sounds ridiculous only if one accepts your explanation of Segura, that -- that it was somehow a retroactive validation.
04-1360b +++$+++ 17492 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1360b +++$+++ 17493 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sorry. I have laryngitis. Can you hear me all right?
04-1360b +++$+++ 17494 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I can, Justice Breyer.
04-1360b +++$+++ 17495 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Why is it retroactive validation? I would have thought Segura and those cases are Silverthorne cases.
04-1360b +++$+++ 17496 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is. It's an --
04-1360b +++$+++ 17497 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ All that it is is it's an independent chain of events.
04-1360b +++$+++ 17498 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's an independent source.
04-1360b +++$+++ 17499 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ An independent chain of events that almost certainly would have led to the discovery of the evidence despite -- not without -- despite the unlawful entry. And if that's so, all we have is a -- is a set of cases where deterrence is most unlikely to play any significant role because no policeman could possibly count on that kind of thing getting the evidence in --
04-1360b +++$+++ 17500 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that's exactly right. And -- and the situation we have in Michigan now is that officers know to a certainty that if they violate the knock and announce rule, nothing will happen. And so that's why in all the other States --
04-1360b +++$+++ 17501 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's not true. There are cases where the violation of the knock and announce rule gives rise to evidence that may be admitted and that would presumably be excluded if you can show that the seizure is related to the violation. The problem here is that the evidence that is being suppressed, as -- as you've suggested, that there's no question that it would have been available if the officers had waited 15 seconds as opposed to 4 seconds.
04-1360b +++$+++ 17502 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, none of the parties has been able to identify any cases in which you can point to evidence and say this -- this evidence was produced by the knock and announce violation and nothing else in the house --
04-1360b +++$+++ 17503 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Solicitor General hypothesized one in the amicus briefs. If somebody -- you know, they -- they burst in and someone screams, you know, run away, it's the police, that excited utterance caused by the absence of a knock and announce would presumably be related to the violation and could be suppressed. That doesn't mean that the gun and the drugs that are found in the room is in the same category.
04-1360b +++$+++ 17504 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If I may make two responses to that. First, the Solicitor General hypothesized such a case but has not identified a single case where that's ever happened. It's purely hypothetical. But the second point is that excluding that evidence would have no deterrent effect whatsoever because by -- by definition, that's evidence that the police would only get by committing the knock and announce violation. So the police lose nothing by risking the possibility that somebody will make an excited utterance and then say, okay, we won't get to use that excited utterance, but we would never have gotten that excited utterance in the first place. That's not deterrence, Mr. Chief Justice. That's restitution. That's like saying that I can be deterred from stealing something by being told that if I'm caught, I'll have to give it back.
04-1360b +++$+++ 17505 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What it is is recognizing that if there is a fruit of the illegal act, it is suppressed so that there is a cost to the illegal act. What it's saying is that not everything that happens after the illegal act is a fruit of the illegal act.
04-1360b +++$+++ 17506 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think your question, Mr. Chief Justice, really goes to the worst position language in Nix, and the point is, from our brief, is that this Court has placed the prosecution in the worst position than it would have been had the police acted lawfully dozens, possibly scores, of time -- times. All the cases in which the Court has noted that the police easily could have obtained a warrant. Most recently in Georgia v. Randolph, where this Court noted that there were two lawful methods for the police to get the cocaine -- the cocaine residue on the straw, but still suppressed the evidence. The police and the prosecution do get placed in a worse position, and that's necessary for deterrence. What --
04-1360b +++$+++ 17507 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Would it have been possible for these police to get a no-knock warrant?
04-1360b +++$+++ 17508 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It might well have been. I was asked this question last time, Justice Ginsburg, and I'd like to modify my answer. In Michigan, there is no statute governing no-knock warrants, and there's -- there are also no court decisions governing no-knock warrants. And there never will be under the People v. Stevens regime. One of the nice things that's happened in -- in -- since Wilson v. Arkansas, in fact, before Wilson v. Arkansas in many States, is courts have developed -- developed procedures for police officers to get no-knock warrants, to go to the police and ask for a no-knock warrant.
04-1360b +++$+++ 17509 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what about in this case, which is Justice Ginsburg's question? If the police said, we have reasonable grounds to -- to believe that he has a weapon and we're also looking for drugs that are easily disposable, would that be grounds for knocking -- for not -- for dispensing with the knock requirement?
04-1360b +++$+++ 17510 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Could the -- could a judge have issued such a warrant in Michigan? Is that your question?
04-1360b +++$+++ 17511 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, let's take it step by step. Suppose the police articulate this at the outset --
04-1360b +++$+++ 17512 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It could well --
04-1360b +++$+++ 17513 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and under -- under State procedures, they're allowed to make the on-the-spot judgment. Would that -- would those facts suffice to allow them to enter without the knock?
04-1360b +++$+++ 17514 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If they had specific information along those lines, that -- that there was evidence hidden in places or -- or stored in places where it could easily be disposed --
04-1360b +++$+++ 17515 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, is that correct? I thought in most States, there had to be a statute that authorizes a non-knock warrant.
04-1360b +++$+++ 17516 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In most States --
04-1360b +++$+++ 17517 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that most States do have such statutes. And we had this case because Michigan chooses to go on -- on a separate path.
04-1360b +++$+++ 17518 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Most States do have statutes, but a few States by court decision have allowed for the issuance of no-knock warrants. My point --
04-1360b +++$+++ 17519 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Even -- even if Michigan doesn't, I mean, that has nothing -- as I understand it, that -- that doesn't affect the -- the answer to the Federal question that we have because, as I understand it, we -- we can -- we can take as good law that even with a warrant that does not have a no-knock authorization, if the police have a justification for going in without knocking, so far as the Fourth Amendment is concerned, the search is still good.
04-1360b +++$+++ 17520 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
04-1360b +++$+++ 17521 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Isn't that correct?
04-1360b +++$+++ 17522 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
04-1360b +++$+++ 17523 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So what we're really arguing is what -- what is Michigan law on the subject, but the -- the issue we've got is not Michigan law.
04-1360b +++$+++ 17524 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. And this case comes to us in the posture in which --
04-1360b +++$+++ 17525 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But this is a -- this is a place -- a case in which the warrant was for drugs. Is that not so?
04-1360b +++$+++ 17526 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was.
04-1360b +++$+++ 17527 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, so in -- in this case, they could have entered in your view if they had specific knowledge of the gun and disposable contraband.
04-1360b +++$+++ 17528 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, after Banks and -- and Richards, especially Richards, if the police had reasonable suspicion that you had contraband in a position where it could be easily disposed and if they had information about the weapons that could be used to resist the police entry, then yes, there could have been a -- a legal no-knock entry.
04-1360b +++$+++ 17529 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What about just the former without the latter? I thought the former alone would be enough.
04-1360b +++$+++ 17530 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Either would be. That's correct, Justice Scalia.
04-1360b +++$+++ 17531 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Going back to my question, isn't it then a reasonable assumption, based on the police experience in case after case, that where there -- where narcotics are housed, there is often a gun and there is ease of disposal, couldn't the police simply say this is a narcotics search and therefore we don't need to knock and announce because those circumstances will be present in most cases?
04-1360b +++$+++ 17532 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, because this Court unanimously foreclosed that argument in Richards v. Wisconsin by holding that there must be a particularized showing for the particular case. That particularized showing I will gladly concede will be easier to make in a narcotics case than it would be in a -- in a stolen property case. But it wasn't made in this case, and this case comes to this Court on the posture that the prosecution has conceded, at every step of the way, that that particularized showing was not made here and that, therefore, there was a knock and announce violation.
04-1360b +++$+++ 17533 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry. A particularized showing of what?
04-1360b +++$+++ 17534 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That in this particular case, it's likely that the drugs would be in an easily disposable situation and that the occupants would be armed and ready to resist the police entry. And there was no such showing made here.
04-1360b +++$+++ 17535 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-1360b +++$+++ 17536 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The prosecution didn't even attempt to make such a showing.
04-1360b +++$+++ 17537 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm vaguely recalling cases from the court of appeals in the D.C. Circuit that accepted a presumption that if there are drugs around, there are likely to be firearms around. Are you saying that that's inconsistent with the Richards decision?
04-1360b +++$+++ 17538 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That might not be inconsistent, but the -- the -- to follow that up with, therefore, you can do a no-knock entry automatically is inconsistent with the Richards decision. The --
04-1360b +++$+++ 17539 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ May I ask this question? As I understand it, the prosecutor conceded a violation of the knock and announce rule.
04-1360b +++$+++ 17540 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1360b +++$+++ 17541 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I'm just wondering. In Michigan, since there's no adverse effect to it, do the prosecutors routinely concede that there's a violation because there's no point in litigating it I suppose?
04-1360b +++$+++ 17542 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't even think we get that far, Justice Stevens. Motions to suppress aren't filed. There's no point filing a motion to suppress except for the -- the fact that this case is pending in this Court. There's no point for --
04-1360b +++$+++ 17543 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So that if the issue arises, you can assume the prosecutor will always say, yes, we'll assume there was a violation. There would be no reason not to assume that.
04-1360b +++$+++ 17544 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
04-1360b +++$+++ 17545 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So you'll never really litigate in Michigan how far they can go before they violate the rule.
04-1360b +++$+++ 17546 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's a dead letter in Michigan.
04-1360b +++$+++ 17547 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I assume that lawsuits are allowable if -- if knock and announce is -- is not observed, and if you intrude upon someone in a state of undress.
04-1360b +++$+++ 17548 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Michigan --
04-1360b +++$+++ 17549 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Isn't a civil lawsuit bringable?
04-1360b +++$+++ 17550 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Michigan has a particularly vigorous State immunity statute that makes it effectively impossible to sue for a -- a knock and announce violation. I have not found a single Michigan case in which anyone has successfully sued for a knock and announce violation. You can sue in Federal court under section 1983, but there you run into various doctrines, especially including qualified immunity. I made the claim the first time and it still hasn't been contradicted by my opponents. We've not been able to find any cases, published or unpublished, in which anyone has collected anything other than nominal damages anywhere in the United States --
04-1360b +++$+++ 17551 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But those doctrines that you're talking about would be overridden on the hypothetical that you want us to be concerned about. In other words, you're saying if you don't suppress the evidence, there's going to be no incentive to comply with the law. So they're going to deliberately violate the law. Well, if they're deliberately violating the law, qualified immunity isn't going to help them very much.
04-1360b +++$+++ 17552 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Qualified immunity would still protect them to the extent that any reasonable officer could have thought that a -- a no-knock entry was valid. I cited a number of cases, for example, where innocent people have been shot following entries into wrong doors, and qualified immunity has been granted to the officers.
04-1360b +++$+++ 17553 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Wait a minute. The government is not arguing here that -- that it's valid. It's just arguing that though it is invalid, the punishment for it should not be to let the criminal go. That's -- that's all they're saying.
04-1360b +++$+++ 17554 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that is their argument.
04-1360b +++$+++ 17555 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The punishment for the invalidity should not be the -- the inadmissibility of all of the evidence of the crime that was found.
04-1360b +++$+++ 17556 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That --
04-1360b +++$+++ 17557 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's quite different from saying that it's -- that it's valid. So I think they acknowledge that -- that a lawsuit against an officer who knowingly dispenses with -- with knock and announce because, as you say, he says there's -- there's no consequence, but there is a consequence. He can be sued.
04-1360b +++$+++ 17558 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I assume --
04-1360b +++$+++ 17559 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And sometimes he may be going into the wrong house and the person suing him may not be a criminal, but may be some -- some innocent -- innocent bystander. And -- and what about -- you know, you say there's no incentive to knock and announce. There -- there may -- you don't know any Michigan cases in which a -- a civil suit has succeeded, but I know numerous cases in which police who -- who burst in without knocking and announcing expose themselves to danger, that is, to being shot at by a -- by a householder who doesn't know that they are the police. Isn't that enough of -- of an incentive, the fact that you may lose your life?
04-1360b +++$+++ 17560 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, because I think what some officers will do is exactly what Officer Good did in this case, which is shout police and then burst in immediately. So they'll do the announce part, which protects the police, to some extent, from being shot, but they will skip the rest of the knock and announce requirement, which is to wait some reasonable amount of time to allow the householder to make himself more dignified, to get to the door, to answer the door, to admit the police in a dignified manner. You raise the point that lots of innocent people are subject to search warrants. Thousands of cases every year of -- of people who didn't do anything either --
04-1360b +++$+++ 17561 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think you said the -- you thought the police here had to wait what? 15 seconds? What was the figure you gave?
04-1360b +++$+++ 17562 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, from Banks, this Court ruled that 15 seconds -- 15 to 20 seconds was an appropriate time for a drug search.
04-1360b +++$+++ 17563 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And now suppose they waited 10 seconds. And so there would be a -- a constitutional violation? Why would suppression be appropriate in that situation? Why would it be in any way proportional to the -- to the violation that occurred?
04-1360b +++$+++ 17564 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if it was 10 seconds, Justice Alito, the government still might have an argument. 15 seconds was enough in Banks. The Court did not say --
04-1360b +++$+++ 17565 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, wherever the line is, suppose they're just -- they're just slightly on the wrong side of the line?
04-1360b +++$+++ 17566 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think as a practical matter, that if the police are just very slightly on the wrong side of the line, the courts are not likely to hold that there was a knock and announce violation. But when you have a flagrant violation like here --
04-1360b +++$+++ 17567 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Then you're -- you're contradicting the premise.
04-1360b +++$+++ 17568 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in a case like -- in a -- if a court were to hold that the police did violate the knock and announce requirement by coming in -- by coming in, by not giving the person a reasonable amount of time to come to the door or to make himself presentable, then yes, the evidence should be suppressed because those officers need to be deterred. The -- the exclusionary rule is all about deterrence, and is there any method that will deter officers from violating the knock and announce requirement other than excluding the evidence by teaching them through example that next time you need to wait longer? You need to wait a reasonable amount of time for someone to come to the door unless you have facts suggesting that waiting a reasonable amount of time would defeat the purposes of the search.
04-1360b +++$+++ 17569 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What about -- you talk about deterrence. What about their not getting promoted? I assume that -- that police departments, even if you have some maverick officers, that the administration of the police department teaches them that they have to knock and announce. Or if it doesn't teach them that, then you do have a 1983 cause of action against the city, not just the officers. And that -- you know, that's a deep pocket.
04-1360b +++$+++ 17570 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I very seriously doubt officers such as Officer Good will not be promoted because of the violation that he committed --
04-1360b +++$+++ 17571 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Why? Really?
04-1360b +++$+++ 17572 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in a case like this.
04-1360b +++$+++ 17573 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You -- you know, I'm the police commissioner and I have a policy that you -- you obey the law, you knock and announce, and -- and I know that this particular officer disregards it all the time. You really think that's not going to go in his record?
04-1360b +++$+++ 17574 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do, Justice Scalia, and I think it's inconsistent with Mapp in which the Court recognized that other remedies have proven completely futile in enforcing the -- the Fourth Amendment.
04-1360b +++$+++ 17575 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mapp was a long time ago. It was before 1983 was being used, wasn't it?
04-1360b +++$+++ 17576 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was before 1983 was --
04-1360b +++$+++ 17577 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You bet you.
04-1360b +++$+++ 17578 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- being used. But I don't think section 1983 has changed the landscape here. I -- I don't think Mapp is ripe for overruling, and in fact, the Criminal Justice Legal Foundation, one of the amici for the other side, concedes that tort remedies cannot, at this time, substitute for the exclusionary rule. If there are no other question, I'll reserve the balance of my time.
04-1360b +++$+++ 17579 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Moran. Mr. Baughman, we'll hear now from you.
04-1360b +++$+++ 17581 +++$+++ FALSE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Justice Robert Jackson once said that when he was arguing cases before the Court, he always gave three arguments: the well-structured argument he rehearsed, the disjointed and confused argument he delivered to the Court, and the brilliant argument he thought of in the car on the way home. I have the rare opportunity to deliver the argument I thought of in the car on the way home. (Laughter.)
04-1360b +++$+++ 17582 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I'm going to refrain, mindful of the fact that this is our -- our second time through and try to hone in on -- on what I think are some critical points. A search warrant, a judicial command, must be obtained from a neutral and detached magistrate. It must particularly describe the place to be searched and the things to be seized, and it must be issued based on probable cause drawn from information which is sworn to are affirmed -- or affirmed. If these requirements are met, the privacy of the described premises will be invaded, and any privilege the occupants might have to withhold evidence or contraband from the police is abrogated. But that command must be executed in a reasonable fashion. And so the police may not bring third parties into the premises who are unnecessary to the execution of the warrant. They may not search in places where the items described may not be found. They may not cause unnecessary damage to property, and they may not use force to accomplish the entry unless consent to enter is denied either explicitly or implicitly or unless entering immediately is reasonable under the circumstances to avoid the destruction of the evidence or harm to the officers. If no valid warrant exists in the first place, then -- and no exception exists, then the privacy of the dwelling has been unlawfully invaded. It never should have happened. But if a valid warrant exists and some error occurs in its execution, it is not the invasion of privacy which should not have occurred that is commanded by the warrant.
04-1360b +++$+++ 17583 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And you -- you concede that there was error in execution here? You concede that there was a violation because -- technically because there was no knock?
04-1360b +++$+++ 17584 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1360b +++$+++ 17585 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Why do you concede that? You've got a case in which, as I understand it, not only was the evidence but the warrant itself an indication not only that drugs were present, but that guns were present. It's perfectly true we don't have a general rule that anytime you do a drug search, you can do a no-knock, but in this case you had specific evidence that there were firearms there. And based on what I've seen in the case, I don't know why Michigan did not argue that, in fact, it was justified to go in without knocking. And I'll be candid to say you -- to tell you that the fact that Michigan does not make that argument suggests to me that Michigan is trying to structure a case in which it's going to have the best shot to -- to get the exclusionary rule out of the way here. Why don't you claim that the search was lawful?
04-1360b +++$+++ 17586 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, let me first say this case was not structured to try -- to try to -- to get it here on our -- on our part. I think initially the prosecutor handling the hearing here reached the conclusion that Richards precluded an argument that a no -- that the failure to knock and announce was justified here. But --
04-1360b +++$+++ 17587 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Richards precluded a general rule, but it didn't preclude you from arguing in a specific case, and it's the fact that the prosecutor and, hence, all the way up the line to you do not argue that is -- is what I don't understand.
04-1360b +++$+++ 17588 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again, I -- I think it would be an interesting argument to revisit Richards on this proposition.
04-1360b +++$+++ 17589 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think we have to revisit Richards. I -- I think what -- what I'm -- what I'm concerned is that you don't make an argument based on the evidence in this case that you had probable cause to believe that there were going to be guns facing you when -- when you went in the door and therefore the knock was not required.
04-1360b +++$+++ 17590 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, I think the -- the belief of the prosecutors, as the case went forward, was that because that belief, the -- you're correct. Guns were described as things to be seized in the warrant. The probable cause for that was not any specific knowledge about a gun in the house. It was the officer's general experience that when I execute search warrants for drugs, guns tend to be there. Richards seems to say, at least it certainly could be argued, that's not sufficient. You can't make that decision based on experience that drugs and guns go together.
04-1360b +++$+++ 17591 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, are you suggesting -- did -- did the warrant -- I don't know this. I should but I don't. Did the warrant authorize seizure of guns as well as --
04-1360b +++$+++ 17592 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, it did.
04-1360b +++$+++ 17593 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- drugs? Well, are you suggesting that the -- the gun portion of the authorization was, in fact, invalid?
04-1360b +++$+++ 17594 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I -- I don't because I believe probable cause can be based on the experience of officers --
04-1360b +++$+++ 17595 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
04-1360b +++$+++ 17596 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- without specific knowledge of the --
04-1360b +++$+++ 17597 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If -- so -- in any case, at -- at the moment that you got the warrant, you -- you had, in fact, a -- a finding by a trial court, or a -- whoever the issuing magistrate was, that there was probable cause to believe that you were going to confront guns as well as drugs inside. And -- and Richards does not seem to me to be a good reason, under those circumstances, to concede that you didn't have a basis for -- for dispensing with the knock.
04-1360b +++$+++ 17598 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It may not have been a good reason, but it was the reason in that the prosecutors believed that the rejection of the drugs and guns always go together as a justifying -- not knocking and announcing in Richards meant that the determination in this case that guns were on the premises based on the officer's experience that drugs and guns go together, not any specific knowledge about a gun was inadequate then to forgive knocking and announcing. That may have been a misjudgment, but it was a belief that Richards foreclosed that. It was not an attempt to set the case up. We had the Stevens case in Michigan.
04-1360b +++$+++ 17599 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well -- well, do you think just as an empirical matter that in most cases where there's known to be guns plus drugs, the police will enter without knocking?
04-1360b +++$+++ 17600 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I -- I don't believe that's the case. I think if there's specific knowledge that there are guns on the premises, yes, absolutely.
04-1360b +++$+++ 17601 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's -- there's specific knowledge.
04-1360b +++$+++ 17602 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. If they knew -- I think then they would enter without knocking. If -- if the --
04-1360b +++$+++ 17603 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was specific knowledge here.
04-1360b +++$+++ 17604 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, no, it's knowledge based on experience.
04-1360b +++$+++ 17605 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you got a -- you got a warrant --
04-1360b +++$+++ 17606 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's in the warrant.
04-1360b +++$+++ 17607 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that said look for them. That's about as specific as you can get.
04-1360b +++$+++ 17608 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand but the facts in the affidavit justifying looking for guns was in my experience drugs and guns go together.
04-1360b +++$+++ 17609 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you can't have it both ways.
04-1360b +++$+++ 17610 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, nevertheless, was not there a finding that there was probable cause that there was a gun there?
04-1360b +++$+++ 17611 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1360b +++$+++ 17612 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right.
04-1360b +++$+++ 17613 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would be happy to -- to, in a different case, make the argument that although Richards says a court cannot say that knock and announce is forgiven every time a drug warrant is executed on the theory that experience teaches that drugs and guns go together. I'd be happy to argue that that holding does not apply when a judge determines, in issuing the warrant, that drugs and guns go together, so I'm putting it in the warrant. I'd be happy to argue that case. At this time --
04-1360b +++$+++ 17614 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Don't argue it to me. It doesn't make much sense. (Laughter.)
04-1360b +++$+++ 17615 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Prosecutors believed that Richards couldn't be avoided by putting the drugs and guns go together into the warrant instead of --
04-1360b +++$+++ 17616 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ May I ask this?
04-1360b +++$+++ 17617 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the judge --
04-1360b +++$+++ 17618 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ May I ask this question about the practice in Michigan? Since People against Stevens and People against Vasquez have been decided, are there any cases, other than this one, in which a prosecutor has raised the knock and announce argument that got litigated all the way to the appellate court?
04-1360b +++$+++ 17619 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, there have been a handful of cases where defense attorneys have filed a motion, despite People v. Stevens, and then they -- they have lost because of Stevens.
04-1360b +++$+++ 17620 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So but there really is no incentive for the prosecutor to fight -- argue about this anymore in Michigan, is there?
04-1360b +++$+++ 17621 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Not, in the criminal case, the prosecutor is responsible -- be, as it was in this case, although the judge refused to follow Stevens --
04-1360b +++$+++ 17622 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it concedes there's a violation.
04-1360b +++$+++ 17623 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- there should be no hearing. They're not conceding the violation. They're simply saying the -- a violation is irrelevant to the question of the admission of the evidence, so we should not litigate it.
04-1360b +++$+++ 17624 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So there's no point in litigating it.
04-1360b +++$+++ 17625 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly.
04-1360b +++$+++ 17626 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So it's a functional equivalent of conceding a violation in every case because there's simply no effective remedy.
04-1360b +++$+++ 17627 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1360b +++$+++ 17628 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No effective remedy in the litigation itself.
04-1360b +++$+++ 17629 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the criminal --
04-1360b +++$+++ 17630 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course, there's always the possibility that the officer will be disciplined by his very zealous superior, I guess.
04-1360b +++$+++ 17631 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Or -- or civil litigation. There is no -- there is no exclusion. Yes, that's correct.
04-1360b +++$+++ 17632 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Do you -- do you dispute -- your -- your brother on the other side said in his argument that he had not heard a dispute about this. But do you dispute his claim that there has never been any -- at least in recent history, any -- any civil judgment actually rendered against anyone in the officer's position?
04-1360b +++$+++ 17633 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I am not aware of one from Michigan. I am aware that there have been civil judgments against officers from other jurisdictions. I'm not aware of one in Michigan. I know there have -- there are some suits that have been brought in the Eastern District that are pending. And -- and part of the difficulty is civil suits can be brought. They can be settled. There can even be trials and damages awarded, and they won't be in the reports. They're not in the F.Supp.'s. They're not in the --
04-1360b +++$+++ 17634 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But we don't -- we don't have any indication that there's an effective deterrence then in civil suits. Maybe there will be some day, but we haven't seen it yet in Michigan, I take it.
04-1360b +++$+++ 17635 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think one could also make the argument that that cuts the other way. The fact that there are not a lot of reported decisions may mean there's not a lot of violations going on, that the police are not routinely kicking down doors without knocking and announcing when they should, and that's why they're not being sued.
04-1360b +++$+++ 17636 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And it may mean that -- that potential plaintiffs say if the courts are winking at this in the criminal case, we don't have much chance of getting a -- a verdict in a civil case.
04-1360b +++$+++ 17637 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. It's not --
04-1360b +++$+++ 17638 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't know, but that might be the case too, mightn't it?
04-1360b +++$+++ 17639 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It might be, but it's not been my experience that either -- either the criminals or certainly innocent parties, people -- probable cause, after all, doesn't mean certainty. People who have had damage done or physical injury occur have been -- are shy about suing the government in those circumstances.
04-1360b +++$+++ 17640 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Is there any evidence that the citizens -- that Michiganders are less litigious than people in other States?
04-1360b +++$+++ 17641 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That certainly hasn't been my experience and certainly not in my county.
04-1360b +++$+++ 17642 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So -- so the mere existence of suits in other States ought to suffice as something --
04-1360b +++$+++ 17643 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I --
04-1360b +++$+++ 17644 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that's -- that's a deterrent. Shouldn't it?
04-1360b +++$+++ 17645 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would -- I would think so.
04-1360b +++$+++ 17646 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I still don't understand where -- where we are with guns. You -- you have a specific finding in a warrant that says there's probable cause there's going to be a gun, and there's drugs. I take it your position is that this allows you to enter without knocking.
04-1360b +++$+++ 17647 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would be my position. I would have thought, as the prosecutor thought here, that a probable cause finding that guns are in the house, based not on any specific knowledge about guns, but based on experience in similar circumstances, was not sufficient to satisfy Richards in terms of not knocking. I would certainly make the argument that it ought to be, but I would have not criticized the prosecutor, who didn't make that argument.
04-1360b +++$+++ 17648 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But why would you bother making the argument? The evidence can't be suppressed. I don't understand why -- why would there ever be any litigation over this issue in a criminal case?
04-1360b +++$+++ 17649 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and I think Your Honor is correct. The prosecutor's point in this case was we shouldn't litigate --
04-1360b +++$+++ 17650 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And can you cite me any other example of a -- a violation of the Fourth Amendment? Maybe we shouldn't have held it's a violation. I understand that argument. Is there any other area of Fourth Amendment law in which the violation of the Fourth Amendment is not followed by a suppression ruling?
04-1360b +++$+++ 17651 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, certainly. Let me give an example. One of the circumstances that I indicated that the police -- a manner in which the police must behave when reasonably executing a warrant is not to look in places where the items sought cannot be found. If the police were searching a house for stolen computer monitors, a large object, and as they were searching for them, they opened the desk drawer where the monitor could not be and they shut it, and they found computer monitors in the home, the -- this Court has never addressed the question, that I'm aware of, but the law is uniform in the country that you would not suppress the computer monitors.
04-1360b +++$+++ 17652 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, now you're talking about other cases in other courts. I looked through with my law clerks 300 cases since Weeks, not Mapp, Weeks. That's what we're talking about, 1914. I couldn't find in 300 cases one single Supreme Court case that did not suppress evidence where there was a Fourth Amendment violation with one exception. The exception is there are sets of cases where deterrence is really not a factor. For example, good faith; for example, it isn't going into a criminal proceeding. Okay? Now, what I'd like you to do is to tell me if I missed some, which is certainly possible, or second, if you want us to change the rule and go back 300 years or 300 cases back before 1914, or are you going to tell us that deterrence doesn't play a role here or whatever you want? I want to put to you the state of the art as far as I can see it.
04-1360b +++$+++ 17653 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would be my position that in all of those cases, there was a causal connection between the evidence found in the --
04-1360b +++$+++ 17654 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there's a causal connection absolutely here. It is a but-for connection.
04-1360b +++$+++ 17655 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1360b +++$+++ 17656 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This person being in the room and a child of 2 would know that if you get into a room, as a result of your being in that room, you're likely to find evidence. So it's both but for and it fits within the problem. There we are. That's the same, by the way, as it is with making a false oath to a magistrate. You make a false oath to a magistrate. That permits the magistrate to get into the house with -- the policeman gets in there with a warrant. It doesn't take the court long to suppress that. About a second. And -- and how -- how is this somehow different?
04-1360b +++$+++ 17657 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me try to give a couple of examples from different situations to make my point that there is a difference.
04-1360b +++$+++ 17658 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, give some cases first. He's talking about actual cases.
04-1360b +++$+++ 17659 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
04-1360b +++$+++ 17660 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, isn't it possible that if his law clerk overlooked Segura, he overlooked other cases as well.
04-1360b +++$+++ 17661 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. We read Segura. We read Segura, which happens to be a case --
04-1360b +++$+++ 17662 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was unquestionably, was there not, a violation of the Fourth Amendment in Segura?
04-1360b +++$+++ 17663 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor is correct, and I am confident that when the officers returned with the search warrant, with the officers already inside, they did not knock and announce when they when they returned with the search warrant.
04-1360b +++$+++ 17664 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He is not -- well --
04-1360b +++$+++ 17665 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Isn't that an example where there's a violation of the Fourth Amendment that is brought up and yet suppression is not the --
04-1360b +++$+++ 17666 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because of the habeas concerns of comity that this Court has, that's correct. It is also not suppressed.
04-1360b +++$+++ 17667 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- important exception. The exception which comes from Silverthorne is when there is an independent chain of events such that it will be -- not could be, but would be -- in fact, discovered anyway, despite the unlawfulness -- Silverthorne -- Holmes says, of course, you don't keep it out then because that's not going to impact deterrence. Now, that's Segura. That's Silverthorne. That's case after case. Of course, I accept that. And if you can show that this case somehow fits within that chain, fine. Then I -- then I maybe appear I have my mind made up on this, but I'm open to change.
04-1360b +++$+++ 17668 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, let -- let me try a couple of examples that -- (Laughter.)
04-1360b +++$+++ 17669 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that I -- that I hope might make the point. It is -- and my -- my belief is -- it's common in human experience that things can be accomplished either by command or by permission when the manner of doing so, the manner in which they end up being accomplished is subject to criticism. And let me give a couple quick examples. If, when she was young, I sent my daughter to her room -- and that was rare, but if I sent her to her room and she stomped up the stairs and slammed the door, she would be in further difficulty not because she carried out my command by going to her room, but because she stomped up the stairs. If a young athlete is told by his coach, catch the ball with two hands and he catches it with one, he is admonished not because he caught the ball but because he caught it with one hand. And if a football player taunts the opposing team as he crosses the goal line, he gets a penalty not because he crossed the goal line, but because he taunted the other team. These strictures are not prerequisites to the conduct. I do not tell my daughter go to your room but only if you don't stomp up the stairs --
04-1360b +++$+++ 17670 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no. That's -- I -- I understand that point from your brief and I'm glad that you brought it up. But I have never -- I have never seen Fourth Amendment matters cut that finely. I have never seen the courts say I want to go back to the reason why this policeman is unlawfully in the room and then try to connect each piece of evidence with that reason. Rather, they ask is he unreasonably and unconstitutionally in the room. So my concern about that, which I'd like you to address, is if we took that approach, I think we'd be doing it for the first time, and we'd let a kind of computer virus loose in the Fourth Amendment. I don't know what the implications of that are. I can't tell you what you're saying is illogical. It's not illogical. It's conceivable, but it strikes me as risky and unprecedented.
04-1360b +++$+++ 17671 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think as -- as -- in the examples I gave, knock and announce works the same way. These are not prerequisites. They're rules of conduct. They are principles of behavior. It's not do this only if you behave in this manner. It's do this and behave in this manner while doing it. And if you don't behave in the manner we have prescribed, the question is what flows from that misbehavior, not from the achievement of the end.
04-1360b +++$+++ 17672 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It seems to me that your example it's -- stomping up the stairs is like failing to knock and announce.
04-1360b +++$+++ 17673 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, and -- and the police are not illegally on the premises and my daughter --
04-1360b +++$+++ 17674 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And so there should be a deterrent for the stomping up the stairs, and you've got no deterrent for the knock and announce.
04-1360b +++$+++ 17675 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, and part of what -- part of what I wanted to say also to Justice Breyer and I think also works here is it's -- the suggestion seems to be that knock -- that a Fourth Amendment violation -- the question of whether one has occurred and the question of whether or not the -- to apply the exclusionary rule are one in the same. And this Court has never said that. To me that would be a dramatic changing of the law of this Court. This Court has always said those are separate questions, and I think Petitioner's argument conflates the two. We first ask whether there has been a constitutional violation and then we say -- this Court has said the premise for application of the exclusionary sanction is whether or not the challenged evidence is the product of the illegal government activity. So once we establish that there has been a constitutional error, the question becomes is the challenged evidence the product of it. And just like the touchdown is not the product of the taunting, the entry into the premises is not the product of the failure to knock and announce. It's the product of a warrant, which the judge issued commanding the police to enter.
04-1360b +++$+++ 17676 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Isn't -- isn't the problem that in -- in fact, it's the product of both? The warrant alone does not get the police officer into -- into the building. It -- it is in fact the entry that gets the police officer into the building, the execution of the warrant. The judge has to do something. The police officer has to do something. And the question that I think we face when we say is the later search the product of the entry, is -- is what your -- what -- I think a point that -- that counsel on the other side was making. It's a pragmatic point. Where do we draw the line of causation? And his answer is -- and I think the -- the answer of the cases that Justice Breyer was -- was referring to -- is this. We draw it in a way that will allow us to deter illegal police conduct, and if we engage in this slicing process of causation that you talk about, there will be no deterrent for the violation of the no-knock rule. If instead we say, yes, this is enough the product that we ought to deter -- that we ought to -- to respond to it in a way that will deter the no-knock and therefore we find causation and we get deterrence. What is fallacious about that argument?
04-1360b +++$+++ 17677 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's nothing fallacious about the argument if one accepts that excluding the truth in -- in a criminal proceeding is a fair tradeoff in that circumstance --
04-1360b +++$+++ 17678 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do that every single time we exclude a piece of evidence in every suppression case, don't we?
04-1360b +++$+++ 17679 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but the Court has --
04-1360b +++$+++ 17680 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Don't -- don't we?
04-1360b +++$+++ 17681 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, we do. But the Court has said that because that's a dramatic thing to do, because it -- it has a high societal cost, it should only be done when there is a causal connection, when the evidence is the product of the police wrongdoing.
04-1360b +++$+++ 17682 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Baughman.
04-1360b +++$+++ 17683 +++$+++ TRUE +++$+++ MR. BAUGHMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I thank the Court.
04-1360b +++$+++ 17684 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Salmons.
04-1360b +++$+++ 17686 +++$+++ FALSE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: Suppression would not be an appropriate remedy in this context for two primary reasons. The first is if the knock and announce rule does not protect the individual's privacy interest in the underlying items seized and, instead, it seeks to limit discrete risks related to the execution of warrants that property will be damaged, that officers will be mistaken for intruders, or that occupants will be caught in embarrassing situations. That makes the knock and announce rule similar to other Fourth Amendment requirements related to the manner of executing warrants such as --
04-1360b +++$+++ 17687 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, what -- what do you say to Justice Breyer's argument that we haven't previously analyzed suppression by tracing or trying to trace the causal connection between a particular piece of evidence and a particular reason for the rule that was broken? What we have said in the past is if the rule or the standard is violated and the search is therefore unreasonable, the evidence doesn't come in. You're proposing a -- a different causal analysis. You're proposing a causal analysis that requires the connection between a piece of evidence and the particular reason for one of these standards in every case in which suppression is -- is requested. Number one, do you agree that that -- that would be a departure, as Justice Breyer suggested? And number two, what would be the justification for that?
04-1360b +++$+++ 17688 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would not be a departure, Your Honor. In fact, that's common practice in the Fourth Amendment area. This Court, for example, in New York v. Harris looked to the purposes of the rule against arrest in the home absent a warrant and to conclude that it wasn't appropriate to suppress a statement made at the station even though it assumed that there was but-for causation. And this Court in Cruz did a similar analysis. It's very common to look to the purposes served --
04-1360b +++$+++ 17689 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's common, when you have a chain of causal connection, to say it ends somewhere. It's common, and in Harris, it ended once they left the home and now they're over in the station.
04-1360b +++$+++ 17690 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-1360b +++$+++ 17691 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This isn't over in the station. This is in the home. You speak of interests, but this doesn't interests. What about Boyd? I mean, the most famous statement in Fourth Amendment history to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense. But it is the invasion of his indivisible right of personal security, personal liberty, and private property. Now, I thought -- 1886 -- that's what's governed these cases for about 100 -- and far more, a century and a half or a quarter. And -- and the -- then suddenly you say, well, it's this interest in the one or the other one. I mean, doesn't that describe it?
04-1360b +++$+++ 17692 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. I mean, certainly that's -- that is one of the principles underlying the Fourth Amendment, but this Court has looked to the types of considerations I'm discussing, and I will give you some examples. And we think, in fact, the knock and announce rule is very analogous to -- for example, to a claim of unnecessary property damage or to a claim that the officers brought the media along when they shouldn't or that they used excessive force.
04-1360b +++$+++ 17693 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's no doubt in here that an invasion of the home was authorized by the warrant. Right?
04-1360b +++$+++ 17694 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-1360b +++$+++ 17695 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The interest we're talking about is not the sanctity of the drawers. It is 10 seconds that the officers should have waited additionally, according to the -- to your brother.
04-1360b +++$+++ 17696 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. The illegality --
04-1360b +++$+++ 17697 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct? I'm sorry. That is correct? I -- I thought that this warrant does not say you can enter the house without knocking. I mean, I have a warrant. This warrant lets me search the house in daytime. I search it in nighttime. Is my search authorized?
04-1360b +++$+++ 17698 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that would be a warrantless search or I don't think that would be a violation. That might be --
04-1360b +++$+++ 17699 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I have a warrant --
04-1360b +++$+++ 17700 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of the manner of execution. But again, if I may --
04-1360b +++$+++ 17701 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What -- what happens with my example? I'm curious. That's not a rhetorical question. I have a warrant which says, search 1618 5th Street. I search 1518 5th Street. Was it a warrant -- a warrant back search?
04-1360b +++$+++ 17702 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1360b +++$+++ 17703 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't have a warrant to search 1518. I don't have a warrant that allows me to come in in the middle of the night when it says day, and I don't have a warrant here that allows me to come in without knocking. So where's the warrant?
04-1360b +++$+++ 17704 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the question in that case, Your Honor, would be about reasonable reliance on the warrant and whether it was a reasonable mistake. And if it wasn't, then it would be a warrantless search. And if I may just focus the Court -- attention on the claim of unnecessary property damage. We think that's quite analogous here in part because the typical -- in the typical case, a premature or unannounced entry will be a forcible entry. But whether the claim is that the officers entered a few moments prematurely or that they unnecessarily used a battering ram on the door, in either case the -- the violation doesn't relate to the privacy interests and the items to be seized and shouldn't result in suppression. And in addition to that --
04-1360b +++$+++ 17705 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it does relate to the privacy interests, and we've seen the explanation. One of the reasons for requiring the knock is that there is enough respect for a person's home, a person's privacy to say the police should not barge in like an invading army.
04-1360b +++$+++ 17706 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that certainly is --
04-1360b +++$+++ 17707 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is a respect for privacy.
04-1360b +++$+++ 17708 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that certainly is true, Your Honor, but that -- that is not a protection --
04-1360b +++$+++ 17709 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that is involved -- and that is -- that is the whole point of -- of knock and announce, isn't it?
04-1360b +++$+++ 17710 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. The point of knock and announce is a more limited privacy. It's not related to the privacy of the items to be seized. That's separate. And that's why it makes it like the claim of unnecessary --
04-1360b +++$+++ 17711 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We're talking about the privacy of individual in his home, and the reasonableness of the search depends upon the reasonableness of invading the individual's privacy in his home. Is that not the general rule?
04-1360b +++$+++ 17712 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. I think what -- what focuses in terms of suppression is whether the government has obtained an evidentiary advantage as a consequence of the illegality. Here, the illegality was the failure to delay a few additional moments before entry.
04-1360b +++$+++ 17713 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Then there will never be a suppression of -- of evidence specified in a warrant when the warrant's no-knock component is violated --
04-1360b +++$+++ 17714 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-1360b +++$+++ 17715 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- because we -- we will say -- in every single time, following your argument, you will -- we will say the -- the violation had nothing to do with the authorization to seize the evidence. The violation simply had to do with the -- with the -- the niceties and the risks involved in entering. So if we accept your argument, no-knock is -- is a dead duck, isn't it?
04-1360b +++$+++ 17716 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so, Your Honor. If I may try to explain. I think as a general matter, with regard to physical evidence in the home that's within the scope of the search warrant, that you're -- you're probably right. Most of the time, that evidence will come in. We think that there are probably at least two areas that might lead to suppression in these cases. One is the -- the type of statements that the Chief Justice mentioned earlier. Another might be what you might call proximity evidence, that the officers went in prematurely and as a result, they saw a --
04-1360b +++$+++ 17717 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Salmons, may I ask you this -- this question? If you'd been the prosecutor in this case and you had -- knew that the evidence would be suppressed if there were a constitutional violation, would you have conceded that there was a constitutional violation in this case?
04-1360b +++$+++ 17718 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think -- I think there is a reasonable argument that could be --
04-1360b +++$+++ 17719 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes or no.
04-1360b +++$+++ 17720 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm -- I'm attempting to answer that, Your Honor. I think there's a reasonable argument that could be made in this case that there wasn't a violation. I think it was probably a smart strategy.
04-1360b +++$+++ 17721 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So you would not have conceded.
04-1360b +++$+++ 17722 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I can't -- I can't second-guess the strategy here to concede it.
04-1360b +++$+++ 17723 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But you would not have conceded. If you -- if you thought there was a reasonable argument, you would not have conceded that there was a violation, would you?
04-1360b +++$+++ 17724 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think I probably would have argued in the alternative, Your Honor. I think that's probably the safest --
04-1360b +++$+++ 17725 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Can you tell me what -- what happens if there's a violation of the daytime warrant provision in -- in a search warrant and the search is at night? Do we suppress?
04-1360b +++$+++ 17726 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think generally no, Your Honor. I think -- and I would -- I would --
04-1360b +++$+++ 17727 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Are there cases -- are there cases on that?
04-1360b +++$+++ 17728 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- not in this Court. There -- there may be in the court of appeals. I think the way that the Court would analyze that would be, again, along the same lines. Now, certainly in jurisdictions that haven't adopted the rule that we're articulating here, the courts may suppress. But we think under the principles we're articulating, that suppression probably would not be appropriate there.
04-1360b +++$+++ 17729 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but apparently you're saying we would not suppress because as long as the warrant specified the items to be seized and they didn't go beyond that, there was no causal connection between the fact that they broke in and disturbed people in the night, when they were not authorized to, and their ultimate obtaining of -- of the evidence. Once again, it seems to me if we follow your -- your reasoning, then the distinction between the nighttime and the daytime warrant is a dead letter.
04-1360b +++$+++ 17730 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you know, we respectfully disagree with that. We think that there are two separate questions, what the Constitution requires and whether suppression is an appropriate remedy.
04-1360b +++$+++ 17731 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Constitution requires --
04-1360b +++$+++ 17732 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Court has always treated those --
04-1360b +++$+++ 17733 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Constitution requires a reasonable search. It is hornbook law that violating no-knock, violating nighttime searches when only a daytime search is authorized amounts to an unreasonable search. You're saying that's utterly irrelevant because there's no causal connection between that violation and the seizure of the particular items that the warrant -- the warrant specified.
04-1360b +++$+++ 17734 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if I may. It's also hornbook law now in this Court that you can't unnecessarily destroy property in executing the warrant or effecting the entry and that you can't bring the media along. This Court in both Ramirez and --
04-1360b +++$+++ 17735 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'd to get your -- I'd like to get your position. I -- I think Justice Souter is correct, that under the theory you're arguing to us here, the violation of the daytime warrant rule is not grounds for suppressing evidence. So we can have nighttime searches with no suppression remedy.
04-1360b +++$+++ 17736 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I think that's probably the position that we would take. I think the way the Court would analyze that, as it has done in these other cases, it would look to two factors. One, what are the purposes served by the Fourth Amendment rule that's violated and how well those purposes fit with the remedy of suppression; and two, whether the government obtained any evidentiary advantage as a result of the violation.
04-1360b +++$+++ 17737 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Salmons. Mr. Moran, you have 3 minutes remaining.
04-1360b +++$+++ 17739 +++$+++ FALSE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you --
04-1360b +++$+++ 17740 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You think there -- you think there was a violation of the knock and announce rule in this case. Correct?
04-1360b +++$+++ 17741 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do, Your Honor. The warrant was never actually made part of the record, but my understanding, from the record we have, was that only drugs -- there was only knowledge of drugs. The -- the warrant authorized a search for guns because Officer Good told the magistrate that in his experience guns were often associated with drugs. But they had no particularized information about any guns on the premises. They only had particularized information about drugs on the premises. The issue here about causation goes back, I think, to the common law. And as Justice Breyer articulated, when an officer is illegally in the home, that causes his seizure of goods or his arrest of people in the home to be illegal. If I can go all the way back to 1831, Chief Justice Shaw of the Massachusetts Supreme Court said, the rule is well established -- this is 1831 it was well established -- that where an authority given by law is exceeded, the party loses the benefit of his justification and the law holds him a trespasser ab initio although, to a certain extent, he followed the authority given. The law will operate to defeat all acts thus done under color of lawful authority when exceeded and a fortiori will it operate to prospectively to prevent the acquisition of any lawful right by the excess and abuse of an authority given for useful and beneficial purposes.
04-1360b +++$+++ 17742 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So you draw a distinction between two cases? If they illegally entered and they suddenly said we waited 4 seconds, it was supposed to be 15. They say, never mind. They go back out. There's another knock. They wait 15 and they come in. Then it's all right. Correct?
04-1360b +++$+++ 17743 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It might be.
04-1360b +++$+++ 17744 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay. But you're saying it's a world of difference if, when they go in and enter and they say, we should have waited 10 more seconds, we're the police, we're here to execute a search warrant, let's count to 10, then all of a sudden, it's invalid from there on. Those are the -- they're two different cases in your mind?
04-1360b +++$+++ 17745 +++$+++ TRUE +++$+++ MR. MORAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's -- that's right because an -- a reasonable search and seizure, as this Court held in Wilson, requires a lawful entry. Eight Justices agreed that an -- a lawful entry is the indispensable predicate of a reasonable search in Ker v. California. These are not disconnected. It is not in. The -- the prosecution's claim here, the Respondent's claim, would eliminate all manner of entry arguments from the exclusionary rule. Nighttime search, use of excessive force, blowing up the building to get in, knocking a wall off the building wouldn't matter. They were in -- they're in, they have a warrant, everything is fine once they're in. It simply wouldn't matter for exclusionary purposes. In Harris, I want to stress again in Harris that this Court never questioned the fact that the evidence found inside the home had to be suppressed, and that's all we're asking for here. The evidence in the home.
04-1360b +++$+++ 17746 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
04-1371 +++$+++ 17750 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in number 04-1371, Merrill Lynch, Pierce, Fenner & Smith versus Dabit. Mr. Kasner.
04-1371 +++$+++ 17752 +++$+++ FALSE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: In an effort to limit State-law securities class-actions which undermine the market for nationally traded securities, Congress enacted SLUSA, a statute of broad preemption. SLUSA, which is reprinted at page 8(a) of Petitioner's blue brief, preempts, subject to three specific statutory extensions, all State-law-covered class actions, quote, "by any private party who alleges misrepresentations, omissions, or fraudulent behavior in connection with the purchase or sale of a covered security." The Second Circuit erred in implying an exception, that nowhere appears in the statutory language, and is wholly at odds with the purpose in the enactment of the statute for holders claims, a type of claim in which a plaintiff alleges, "I did not purchase" or "I did not sell, but would have, had I known the allegedly false information," a type of claim which this Court, in Blue Chip Stamps, over 30 years ago, recognized as the most vexatious and abusive type of securities class-action claims. The court below erred, for a number of different reasons. First and foremost, it completely violated the natural meaning of the statute. As I have mentioned, an examination of SLUSA, beginning at page 8(a), reflects that no covered class action may be maintained, quote, "by any private party," a clause that this Court, time and again, has interpreted as perhaps the broadest way of phrasing "any and all private parties" making certain types of allegations. Those allegations appear in (a) or (b), focusing on the conduct of the defendant in connection with the purchase or sale of a covered security. Now, Congress could have -- had it intended to inject a purchaser/seller limitation, consistent with what the court below concluded, Congress could have phrased that language differently. As the Court is aware, in the both the 1933 and 1934 acts, Congress has made express causes of action, subject to an explicit purchase or seller requirement. For example, section 11 of the '33 act affords a private right of action to purchasers of securities in registered offerings. Section 12 affords a private right of action to persons from whom an offer or sale of securities. Section 9(e) of the '34 act, similarly, affords a purchase or seller requirement. Significantly, SLUSA nowhere speaks in terms of a purchase or sale. And it could have. For example, Congress could have provided that no covered class action by any private party alleging "his or her sale" of a covered security is preempted. It could have said, "Any private party alleging a misrepresentation or omission of a material fact in connection with the plaintiff or that party's purchase or sale." It did not. The decision of the court below is also at odds with this Court's teaching in United States versus O'Hagan, which was decided 1 year before SLUSA was enacted by Congress. In United States versus O'Hagan, this Court concluded that the so-called "misappropriation theory" stated a viable claim in a criminal case brought by the United States Government. In responding to an argument by the defendant that no one involved that had been defrauded purchased or --
04-1371 +++$+++ 17753 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I just ask you this question about the plain language? If the word in 1(f)(1)(A) had not been "in connection with the purchase of sale -- sale of security," had been "in connection with his or her purchase or sale," then it would have been covered, would it not?
04-1371 +++$+++ 17754 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, if, by "his or her," it's referencing "any private party," I would agree with that. That would be a different case in --
04-1371 +++$+++ 17755 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, the question is whether we should construe the word "the" to be the functional equivalent of "his or her."
04-1371 +++$+++ 17756 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In essence, Justice Stevens --
04-1371 +++$+++ 17757 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that true?
04-1371 +++$+++ 17758 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's correct. And I think that that question has been answered by this Court, on a number of different occasions. Again, in United States versus O'Hagan, this Court concluded that the "in connection with the purchase or sale of a security" does not mean "in connection with the purchase or sale by another party to the securities transaction," but, rather, means "in connection with the purchase or sale by anyone."
04-1371 +++$+++ 17759 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Kasner, the -- does the Securities and Exchange Commission have enforcement authority in this -- in this area?
04-1371 +++$+++ 17760 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does, Justice Scalia.
04-1371 +++$+++ 17761 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Have they issued any rules or regulations on this -- on this point?
04-1371 +++$+++ 17762 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The point being, Your Honor, whether --
04-1371 +++$+++ 17763 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ On the point that you're arguing, whether the critical language means the person's own sale, or not --
04-1371 +++$+++ 17764 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. In adjudicatory proceedings referenced in our brief, the SEC has unanimously, and uniformly, taken the position that it does not. In briefs to this Court in criminal prosecutions, in civil prosecutions, the Government has consistently taken the position, as it has in this case, as an amicus, and as it did in the court below.
04-1371 +++$+++ 17765 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it your position that we owe deference to the interpretation of the SEC?
04-1371 +++$+++ 17766 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is our position, Your Honor. We do take the position that this Court should defer to the views of the SEC on that issue. What that deference is, should it be Chevron or Skidmore, is not a question Your Honor has asked. I'm happy to say that we believe, vis-a-vis 10(b)(5) --
04-1371 +++$+++ 17767 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if it's just Skidmore, forget about it. [Laughter.]
04-1371 +++$+++ 17768 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, that's --
04-1371 +++$+++ 17769 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I actually carefully studied yesterday's opinion, where this Court discussed the Skidmore deference, and, either way, we think that this is -- the statute is so clear that, deference or none, there really is no other way to read the language of the statute. As I say, this Court, in United States versus O'Hagan, concluded squarely that this language does not mean the purchase or sale of the plaintiff's securities. Justice O'Connor's concurring opinion, joined in by Justice Stevens, in the Holmes case makes that same point. Significantly, Your Honors, the "in connection with" language, as a statutory matter, has consistently been construed by the Securities and Exchange Commission, and by this Court, as one of incredible breadth. Most recently, in United States versus Zandford, this Court concluded that the "in connection with the purchase or sale" language means anything that coincides with a securities transaction. And what is significant in this case -- it is conceded by the Respondent at page 8 of his brief -- that the conduct alleged by the plaintiff below is in connection with the purchase or sale of securities. There really can be no other conclusion. At myriad paragraphs in the pleadings, appearing, among others, at joint appendix 53, paragraph 4; joint appendix 53(a), paragraph 5; joint appendix 59 to 60 --
04-1371 +++$+++ 17770 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Kasner, may I just interrupt those references to ask you -- one could agree that, for SEC-enforcement purposes, for prosecutorial purposes, the "in connection with" is as broad as you suggest. But for purposes of private actions, it isn't that broad; it is limited, as this Court said in Blue Chip Stamps. It is possible for the same words, even in the same statute, in difference contexts, to mean different things.
04-1371 +++$+++ 17771 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, I believe that this Court has answered Your Honor's question in the Blue Chip Stamp case, where it specifically rejected that sort of an approach, and the one that was consistent with the court below. What the Court, in Blue Chip Stamp -- which, of course, was a civil case involving an alleged holder's claim was a class action -- what this Court said, for purposes of a civil proceeding, is, "purchase or seller requirement nowhere appears in the statutory language." The statute clearly says "in connection with the purchase or sale of securities." But, as a statutory matter, this Court concluded, Your Honor, that a violation of 10(b)(5) had been alleged, notwithstanding going on to conclude that the plaintiff could not recover, as a matter of private cause of action. So, we understand -- we believe, Your Honor, that it -- and it is undisputed on this record -- that all parties agree, as the court below concluded, that this -- Congress intended to impart 10(b)(5) interpretation as a statutory matter into SLUSA. We also think, Justice Ginsburg, that, were Your Honors to conclude that somehow "in connection with" means something different in a civil context, a narrower reading than in the broader context, that would, of course, violate, in our view, the rule of lenity that is applied by this Court. It would also mark what we believe to be the first time, insofar as we have been able to determine -- and Respondent cites no authority to the contrary -- in which the same provisions in a statute that have civil and criminal --
04-1371 +++$+++ 17772 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you explain the rule of lenity? Because, on criminal, it is as broad as can be. I didn't know that there was a rule of lenity that applied strictly to civil liability.
04-1371 +++$+++ 17773 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we -- and we have cited authority, including the Leocal decision of this Court, last year, in which, for statutory construction purposes, where you have a civil and a criminal statute that has both elements to it, the rule of lenity would dictate that the narrower reading be the one that is written. So, in other words, if this Court were to have concluded, in Blue Chip -- excuse me -- in United States versus O'Hagan, that, as a criminal matter, the "in connection with" language is not tethered to the purchase or sale by a particular party in the case, that is a broader reading than the reading that the court below adopted in a civil case. And so, what we're urging is that the rule of lenity would suggest that, if this Court, in U.S. v. O'Hagan, took the view that the "purchase or sale" requirement does not apply in a criminal context, that should also apply in a civil context, that a narrower reading should not be imparted into a civil context than you would find in a criminal context. We also --
04-1371 +++$+++ 17774 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But one reason you might want to adopt a narrower reading, though, is, we're dealing here with the preemption provision. It's one thing to say that, when you're talking about the SEC's enforcement powers, you adopt a broad reading; but it's quite another thing, when you're talking about displacing State law, that you would necessarily adopt the same broad reading.
04-1371 +++$+++ 17775 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, I think, in this case, there is no other purpose to be served by this statute than to preempt. To the extent that embedded in Your Honor's question is a question with respect to the so-called presumption against preemption, we don't think that those concerns, or the concerns to which Your Honor just referred, apply in this case, because the statute is clear; there is no ambiguity in the language that Congress used, and hence -- and it would have made no sense, Mr. Chief Justice, for Congress to have --
04-1371 +++$+++ 17776 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there's a lot of -- I think our cases establish that a phrase like "in connection with" carries with it a lot of ambiguity. You don't know exactly how rigorous the connection has to be. I mean, a auto accident by a broker who's leaving his office -- he wouldn't be in the office if he weren't buying and selling securities. I mean, is that auto accident "in connection with the purchase and sales of securities"? No. And yet, you know, theoretically it could be. It's a -- there's a lot of ambiguity in determining how much breadth to give that phrase.
04-1371 +++$+++ 17777 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Mr. Chief Justice, I would agree with you that, in terms of deciding, for -- as a substantive matter, for purposes of 10(b)(5), "in connection with," such as in SEC versus Zandford, how far the outer reaches of the "in connection with" language go may well be susceptible of differences of opinion. There is no difference of opinion to which there can be any disagreement, in this case, about the plain language of the preemption, because the conduct -- no matter what the conduct is that is involved "in connection with the purchase or sale of securities," one thing that is totally crystal clear, based on this Court's cases and congressional purpose, is that the "in connection with the purchase or sale" language, as used here, does not restrict its application to the purchase or sale by the plaintiff such that --
04-1371 +++$+++ 17778 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but that's a normal reading of the words, wouldn't you -- when you say a purchase or -- it normally would be "in connection with the purchase or sale of securities by the party to the litigation." That would be your first take on it. But then you say, "Well, we have cases out there that construe it a little more narrowly." And is it not somewhat unusual -- and I know it's not totally unusual -- for Congress to preempt a State cause of action that without -- where there is no parallel Federal remedy.
04-1371 +++$+++ 17779 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, one misimpression I believe that the court below was under, and I believe is perpetuated by Respondent in his amici, this statute does not preempt a State-law claim. This is not like the cases, for example --
04-1371 +++$+++ 17780 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It just preempts class actions.
04-1371 +++$+++ 17781 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It preempts class actions. And it's significant, because Congress made a policy judgment. Originally, as originally introduced in the House, SLUSA would have preempted all State-law securities cases. All of them. As the statute wound its way through the House and the Senate, it -- and principally in response to testimony by the SEC Commissioner Levitt, who went to the Hill three separate times on this legislation -- specific statutory exemptions were put in. But it -- getting back, though, to the purpose behind --
04-1371 +++$+++ 17782 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In going through that legislative history, did you find any evidence that they intended to preempt any State-law claims that were not -- did not have a parallel Federal claim?
04-1371 +++$+++ 17783 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, the --
04-1371 +++$+++ 17784 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Other than the language of the statute?
04-1371 +++$+++ 17785 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we believe that the --
04-1371 +++$+++ 17786 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1371 +++$+++ 17787 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- this inquiry --
04-1371 +++$+++ 17788 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you --
04-1371 +++$+++ 17789 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- begins and ends --
04-1371 +++$+++ 17790 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you brought up the legislative history.
04-1371 +++$+++ 17791 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1371 +++$+++ 17792 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, you're an expert on that subject. [Laughter.]
04-1371 +++$+++ 17793 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1371 +++$+++ 17794 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your -- Justice Stevens, the only reference to the purchaser-or-seller issue is one that is referenced by the Respondent. And, in that instance, a professor from Cornell, Professor Painter, went to the Hill, and he said, "If you enact this statute, you are going to be closing off claims of people who are not purchasers or sellers, because those cannot be bought in the Federal court." But back for a moment, though, to the issue of what is not preempted in the policy behind this statute, there was another component that Congress was seeking to remedy here, and that was the so-called "safe harbor." In 1995, when Congress enacted the Private Securities Litigation Reform Act, one piece of that was an effort to encourage public companies to make predictive statements publicly. There had been a rash of litigation, at the time, against public companies whose predictive statements proved false. And so, Congress said, "Wait a minute. We will allow you an insulation from liability, if your forward statements prove false, if the plaintiff cannot allege either that they were made with actual knowledge or not accompanied by meaningful cautionary language." Another purpose of this statute was to --
04-1371 +++$+++ 17795 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I interrupt? Because I'm --
04-1371 +++$+++ 17796 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1371 +++$+++ 17797 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- your time is running out.
04-1371 +++$+++ 17798 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1371 +++$+++ 17799 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is my understanding correct that, on your reading, State class actions of less than 50 parties are also left unpreempted?
04-1371 +++$+++ 17800 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, the definition -- yes. The answer to --
04-1371 +++$+++ 17801 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
04-1371 +++$+++ 17802 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- your question is, yes.
04-1371 +++$+++ 17803 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So --
04-1371 +++$+++ 17804 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The definition --
04-1371 +++$+++ 17805 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- individual actions and small State class actions.
04-1371 +++$+++ 17806 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Individual actions, less than 50 people, arbitrations, public enforcement. And, with that, Mr. Chief Justice, I would like to reserve the balance of my time.
04-1371 +++$+++ 17807 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Kasner. Mr. Hungar.
04-1371 +++$+++ 17809 +++$+++ FALSE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The fundamental flaw in the Court of Appeals analysis is that it requires the phrase "in connection with" to be given two different and irreconcilable interpretations, depending on the identity of the plaintiff. Nothing in the text or history of the securities laws justifies that implausible interpretation. The Securities and Exchange Commission --
04-1371 +++$+++ 17810 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Hungar, I just wonder if that's correct. Is -- am I not right to say that the word "the" had been read to mean "his or her," that argument would not apply?
04-1371 +++$+++ 17811 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's correct, Justice Stevens, but --
04-1371 +++$+++ 17812 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, then you don't have to have differing interpretations of "in connection with." You just have to know what the word "the" means.
04-1371 +++$+++ 17813 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the "in connection" -- that's not the approach that the Court of Appeals took, of course, but -- and also, as Mr. Kasner indicated, that issue has been dispositively resolved by this Court and the Commission in concluding that the purchaser/seller rule is not a limitation on the scope of the prohibition in section 10(b). And if your interpretation were the one that were adopted, that would not be the case.
04-1371 +++$+++ 17814 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I always thought "the" meant "the." [Laughter.]
04-1371 +++$+++ 17815 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly, that would be our submission.
04-1371 +++$+++ 17816 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And "his or her" means "his or her."
04-1371 +++$+++ 17817 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. And, again --
04-1371 +++$+++ 17818 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but you --
04-1371 +++$+++ 17819 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- if it --
04-1371 +++$+++ 17820 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- think it means "any."
04-1371 +++$+++ 17821 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry?
04-1371 +++$+++ 17822 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You think it means "any," right? You're reading "the" to mean "any."
04-1371 +++$+++ 17823 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, it's "the" -- well, it's "the," in the sense of "the activity of purchasing and selling securities," yes. It's -- and that's how this Court has interpreted, in the O'Hagan case, for -- if that interpretation -- if "the" were read as "his or her," then it's impossible to see how the SEC could bring an enforcement action, or the Justice Department could bring a prosecution, in a case like O'Hagan, where the -- where the Court specifically said that the purchaser or seller was not defrauded. It's not that -- it's not true that section 10(b) requires that the purchaser or seller be defrauded. And so, we submit that this would be --
04-1371 +++$+++ 17824 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it certainly doesn't require the Commission to be a purchaser or seller, either. You know --
04-1371 +++$+++ 17825 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we certainly would agree with that, Your Honor, that --
04-1371 +++$+++ 17826 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1371 +++$+++ 17827 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, more generally, it doesn't require that there be a purchaser or seller who's defrauded, and yet the purchaser/seller rule, for the purpose of implied actions, does require that. Justice Stevens, you asked about whether there is any indication in the legislative history that Congress intended this act to preempt class-action claims where there would be no Federal remedy. The answer to that is, absolutely yes. It is perfectly clear from the legislative history that Congress knew, and expected, that claims that could be brought under State law as class actions, such as aiding-and-abetting claims or negligent-misrepresentation claims, claims that would not satisfy the Federal --
04-1371 +++$+++ 17828 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
04-1371 +++$+++ 17829 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- scienter requirements for -- and, of course, the claims that would not satisfy the requirements of the PSLRA. None of those could be brought in Federal court, because they're barred by the various provisions of Federal law.
04-1371 +++$+++ 17830 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but they would be at -- adjudged under a different standard, you're dead right. As far as the parties involved, the -- that's what I was really asking.
04-1371 +++$+++ 17831 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in cases where the -- where the only claim is against aiders and abetters, those parties would be -- would be out of court; or, likewise, cases where parties could not satisfy the scienter requirement, those parties would be out of court. So, Congress knew that it would be foreclosing remedies for certain categories of claims, and that was part of the point of the act, as the conference committee report makes clear.
04-1371 +++$+++ 17832 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about the --
04-1371 +++$+++ 17833 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Congress was --
04-1371 +++$+++ 17834 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the claim that's made here, the second claim, where the broker said, "We lost clients, so -- as a result of this deception -- and we want to be compensated for that," nothing about the inflated price of the security --
04-1371 +++$+++ 17835 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your --
04-1371 +++$+++ 17836 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- just that "our clients don't trust us anymore, because we gave them such bad advice."
04-1371 +++$+++ 17837 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the -- that issue is not before this Court --
04-1371 +++$+++ 17838 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know, but I --
04-1371 +++$+++ 17839 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- because it was not --
04-1371 +++$+++ 17840 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- wanted to know what the Government's position was on that claim. Could that be brought in a State court --
04-1371 +++$+++ 17841 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
04-1371 +++$+++ 17842 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- even as a class action?
04-1371 +++$+++ 17843 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Commission addressed that question in its amicus brief in the Court of Appeals, and took the position that that claim was not in connection with the purchase or sale of securities, because the injury occurs after the fraud has been completed, and is -- - and has to do with the lost future relationship, rather than fraud in connection with the purchase or sale of securities. And so, we didn't address that in our brief here, obviously, but the Commission took the position, below, that that would not be preempted, because it's not in connection with the purchase or sale of securities.
04-1371 +++$+++ 17844 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How do you deal with the Court's -- the footnote in the Blue Chip Stamp -- that the court says -- in the Federal court -- "these 10(b) actions have to be limited to actual purchasers and sellers," but that limitation is attenuated, because deserving claims by nontraders would lie under State law, including the very suit that was involved in Blue Chip Stamps and in the Second Circuit case that paved the way for Blue Chip?
04-1371 +++$+++ 17845 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, that was an accurate description of the state of the law, as it existed at the time, at least in theory, although, as a practical matter, Respondents have not been able to point to a single reported case a -- of a holder class action in State court prior to the adoption of the Uniform Standards Act. So, while it was true, as a theoretical matter, that such claims could be brought under the law of some States, there are -- there is no history of State class actions in this area, which is one of the reasons why we think the reliance on the assumption of nonpreemption makes no sense here. Securities class actions prior to the PSLRA were brought in Federal court, and it was only the PSLRA that resulted in cases, such as the type of case at issue here, being brought in State courts. And Congress -- once it saw that problem, Congress was concerned that the requirements of the PSLRA were being evaded, and it was also concerned, as the conference committee report makes clear, that, now that these securities class actions were being brought in State court, there was the potential danger of 50 varying State standards being applied, as this very case suggests, and Congress acted to remedy both of those problems, as the conference committee report makes clear, both the risk of nonuniformity in securities class actions that are targeted by the act, and the risk of evasion of the PSLRA. Respondent's position would frustrate both of those objectives, because it would -- it would permit the most abusive category of lawsuits to proceed in State court, and it would permit such holder claims to be brought -- for instance, based on negligence, if State law permitted that; based on conduct that would be protected by the Federal safe harbor for forward-looking statements under the PSLRA. So, the PSLRA protections would be frustrated by their interpretation. So, the very goals that Congress explicitly sought to achieve, stated in the -- in the text of the statute, in the purposes section and also in the conference committee report, would be frustrated. And, again, that approach requires the Court to accept an inconsistent interpretation of the text of the "in connection with" requirement, depending on the identity of the plaintiff, which would be an extraordinary way to construe a statute, particularly when there's nothing in the legislative history that provides even a hint of a suggestion that Congress would have intended that result. And with respect to Blue Chip, Your Honor, it's important to remember what Blue Chip was doing. Blue Chip was not a case about the scope of the "in connection with" requirement or the section 10(b) prohibition. Instead, it was a case about what to infer about what Congress would have wanted to authorize as an -- as a right of action, if it had addressed the question. And that's why the Blue Chip court made very clear that the conduct at issue there involving injuries to holders can be a violation of section 10(b) -- i.e., it can be in connection with the purchase or sale of securities -- it's just that they did not think that Congress would have wanted to authorize a private right of action. So, again, when we're talking about the scope of the "in connection with" requirement, which is what is at issue here, that approach is the same approach that should be followed here, the same approach that was in -- followed in O'Hagan and in Zandford, and compels the conclusion that, since the conduct at issue here is unquestionably "in connection with the purchase and sale of securities," as this Court has construed that phrase, it is preempted by the Uniform Standards Act. If the Court has no further questions, I thank the Court.
04-1371 +++$+++ 17846 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Hungar. Mr. Frederick.
04-1371 +++$+++ 17848 +++$+++ FALSE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: Our position is that SLUSA does not preempt class actions asserting holder claims. Congress incorporated this Court's interpretation of "in connection with" from Blue Chip Stamps when it enacted SLUSA. SLUSA rechanneled State suits to Federal court. It was not designed to eliminate State remedies that could not be pursued as Federal 10(b)(5) claims. That interpretation is the better reading of the text, the context, and the history of SLUSA's handling of private securities actions. If I could start with the text --
04-1371 +++$+++ 17849 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can you tell me, do you agree that a holder action falls within 10(b)(5), generally?
04-1371 +++$+++ 17850 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, because this Court, in the Blue Chip Stamps case, said that it did not. In footnote 5, Justice Rehnquist --
04-1371 +++$+++ 17851 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what about enforcement actions taken by the --
04-1371 +++$+++ 17852 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In enforcement --
04-1371 +++$+++ 17853 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- SEC?
04-1371 +++$+++ 17854 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- actions, the SEC can bring enforcement authority, pursuant to 10(b)(5). And so, to that extent, misconduct that would be connected to what, in a private context, would be deemed a holder claim, does fall within the SEC's --
04-1371 +++$+++ 17855 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But then, the --
04-1371 +++$+++ 17856 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- jurisdiction.
04-1371 +++$+++ 17857 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- then it does fall within -- holder actions do fall within 10(b)(5), for some purposes.
04-1371 +++$+++ 17858 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They do, for enforcement purposes; they do not, for private civil-action purposes.
04-1371 +++$+++ 17859 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, you want us to interpret the text two ways, depending on the purpose.
04-1371 +++$+++ 17860 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. What I want you to do is to understand what Congress intended. And what Congress intended, in SLUSA, I think is quite clear if you start at the beginning of the statute and you just start reading your way through it, because what Congress did in SLUSA was attempt to stop a flight of cases that had been brought in Federal court heretofore, but were migrating to State court, Congress perceived, as a result of the enactment of the PSLRA. Section 2 of SLUSA -- and it is very important, Your Honors, that you look carefully at section 2 of SLUSA, because it has five congressional findings. They are not adequately briefed, or even discussed, by the Second Circuit, but one of them says that the PSLRA sought to prevent abuses. The second one says, since an enactment of that, Congress perceives that a number of securities class-action lawsuits have shifted from Federal to State courts. The third one says, that shift has prevented the act from achieving its objectives. The next one says, State securities regulation is of continuing importance. And the then, the fifth one says, in order to prevent certain State private securities class actions alleging fraud from being used to frustrate the objectives of the PSLRA, it is appropriate to enact these national standards.
04-1371 +++$+++ 17861 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The Government doesn't say that "all" are covered. The Government acknowledges that there are some actions that could still be brought in State court.
04-1371 +++$+++ 17862 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The point, though, Justice Scalia, is that what Congress, in the PSLRA, was doing was attempting to ratchet up the pleading requirements for Federal-law claims.
04-1371 +++$+++ 17863 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So -- it's so counterintuitive. As the Government points out, these holder claims lend themselves to abuse much more than do the narrow purchase-and-sale claims.
04-1371 +++$+++ 17864 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely --
04-1371 +++$+++ 17865 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And why --
04-1371 +++$+++ 17866 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- not.
04-1371 +++$+++ 17867 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- why the Government would want to police the one, and let the other, you know, proliferate, seems very strange to me.
04-1371 +++$+++ 17868 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's not correct, Justice Scalia. And it's important to emphasize this. What the Court addressed in the Blue Chip Stamps case was a very different kind of case. It involved nonpurchasers. And the Court reasoned that it would be speculative for somebody out there to say, "Well, I would have purchased the security, had I known." A holder claim, as recognized for a century in various State courts, involves a claim by somebody who holds a security and is induced by fraud not to sell that security. The restatement set of torts, section 525, recognizes that the fraud by forebearance of -- to cause you not to take an action is just as much a fraud as one that --
04-1371 +++$+++ 17869 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the --
04-1371 +++$+++ 17870 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- induces you.
04-1371 +++$+++ 17871 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the fraud is caused -- the fraud causes other people to want to buy the security. They do so at a higher price. It causes the price to go up. It's "in connection with a purchase or sale," maybe not of the holder's securities. But it's certainly -- the holder's claim wouldn't exist, but for purchases and sales that caused the price to go up.
04-1371 +++$+++ 17872 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In most circumstance, that's correct, Mr. Chief Justice. But that, I don't think is material. The level of damages that a holder sustains should not determine what the elements of the liability are. And what is striking about the Government and Merrill Lynch's position here is that intentional fraud is going to be given a pass because of those persons who are uniquely harmed, because, for 20 years --
04-1371 +++$+++ 17873 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what your clients want to do is cash in on the fraud. They don't -- their claim is that they didn't get to sell the stock at an inflated price to somebody who didn't know about the fraud. That's the damages that they want to collect. And that seems to be an odd claim to recognize.
04-1371 +++$+++ 17874 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's the same kind of claim that in -- to get back to Justice Scalia's question -- arises in the purchaser/seller context. The only difference is that the measure of damages is computed by when you purchase or sell, as opposed to when you bought it, before the fraud occurred. I mean, Wall Street has been telling investors, for two or more decades, "Buy and hold. Rest your retirement, hold your securities."
04-1371 +++$+++ 17875 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In that --
04-1371 +++$+++ 17876 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In --
04-1371 +++$+++ 17877 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- in -- suppose a person bought the stock at price 30 before any fraud took place, and then he holds it, and then the fraud, and then, subsequently, the word of the fraud gets out, the price falls a lot, and he sells it. Does he have a claim, under Federal -- ordinary -- you know, does he -- can he go into Federal court?
04-1371 +++$+++ 17878 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
04-1371 +++$+++ 17879 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No.
04-1371 +++$+++ 17880 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Blue Chip --
04-1371 +++$+++ 17881 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-1371 +++$+++ 17882 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Stamps said no.
04-1371 +++$+++ 17883 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-1371 +++$+++ 17884 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In State courts, in the Weinberger case that we cite, they -- they very carefully say this was not a State-court class action, but what Judge Friendly, in the Weinberger case, addressed was a State-law holder --
04-1371 +++$+++ 17885 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right, then --
04-1371 +++$+++ 17886 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- class action --
04-1371 +++$+++ 17887 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- then -- I see that -- then what's worrying me is this, that -- one thing worrying me is that -- let's take an ordinary buyer case. All right? And what happened is that the -- some buyers would like to bring a fraud suit in Federal court. They have to go to Federal court now. They can't go into State court. But they have a little brainstorm, or the lawyers do, and they say, "Well, in any case where a buyer would have a claim, and we don't want to go into Federal court, there surely are going to be a class of holders that would also have the kind of claim you say." So, there we are, same actions, all in the State court, just happens to have found a different class of claimant. And there always will be such a class.
04-1371 +++$+++ 17888 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There will be, in most circumstances. There are some circumstances where harms are unique to holders. But, Justice Breyer, can I point out to you that, in the antitrust context, there is, under Illinois Brick, a requirement that you must be in the direct chain, in a direct purchaser, but there are some 30 States that have allowed standing for people --
04-1371 +++$+++ 17889 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's fine. And I --
04-1371 +++$+++ 17890 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that are indirect purchasers.
04-1371 +++$+++ 17891 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and what I'm not facing, in the antitrust area, is what, it seems to me, on your interpretation now, would be, Congress passes a law, which becomes a futile act, because what they're anxious is -- to do is to get the cases in the class actions -- not all the cases -- but the class actions in the Federal court. And then, in every single case, or 99.999 percent, where we've kept this action out of Federal court, there's going to be a comparable action, with holders as the plaintiff, in a State court.
04-1371 +++$+++ 17892 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1371 +++$+++ 17893 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, what -- that's a -- my concern. What do you --
04-1371 +++$+++ 17894 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And let me address that this way. What court -- what -- Congress was very clear in the legislative debates, was -- it did not want to cut off meritorious claims. It simply wanted to rechannel them.
04-1371 +++$+++ 17895 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can you -- can you ease my concern there? Is there anything you can say that could ease my concern that we'll have the same set, that they'll just be in State court with a different class?
04-1371 +++$+++ 17896 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Many States doesn't recognize holder claims as a matter of State law, and they have the same kinds of heightened pleading requirements that were imposed under the PSLRA.
04-1371 +++$+++ 17897 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And, by the way, my concern is not that it's a "bad thing," in quotes. My concern is that it's hard for me to think Congress would have done something that wouldn't have had much effect.
04-1371 +++$+++ 17898 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think your concern should be, What did Congress intend? And --
04-1371 +++$+++ 17899 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what do you make of --
04-1371 +++$+++ 17900 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
04-1371 +++$+++ 17901 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right. That's just --
04-1371 +++$+++ 17902 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I don't think Congress intended to eliminate a swath of class actions concerning a type of claim that this Court had said could not be brought under --
04-1371 +++$+++ 17903 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, then --
04-1371 +++$+++ 17904 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Federal law.
04-1371 +++$+++ 17905 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- what do you make of the legislative history? I mean, your friend on the other side pointed out that there was very clear testimony to the effect that if the statute passed, with the text that we're dealing with, that it would, indeed, cut out a series of claims.
04-1371 +++$+++ 17906 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that that was -- if you read that in context, I don't think that it was a statement by the speaker, in that instance, of Congress's intent to go beyond those claims that were cognizable under Federal law, and to cut off a whole category of claims that were unique to State law.
04-1371 +++$+++ 17907 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Frederick, you mentioned cutting off a whole category of claims. And, earlier, you said they didn't want to give a pass to this kind of a claim. But this is not a pass, because there are all sorts of remedies retained -- derivative suits, 49-person actions, and so forth. And are you aware -- you mentioned the 100 years of State precedent -- is there any precedent in the State law for class actions for holder claims?
04-1371 +++$+++ 17908 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we think the Weinberger case recognized that class actions could be brought, under New York law. It was a Federal case --
04-1371 +++$+++ 17909 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But this --
04-1371 +++$+++ 17910 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but it was --
04-1371 +++$+++ 17911 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- is not a case where we have a 100-year body of law of class action after class action brought on State-law grounds for this type of claim.
04-1371 +++$+++ 17912 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ True. But, in the '90s, you had a unique form of fraud that was being perpetrated on Wall Street that did affect holders in a unique way. And we've highlighted market timing in our briefs. In that circumstance, it would be futile for 49 holders to get together and assert that they had been harmed by market timing, because the aggregate of their harm is so small that you really have to look at it in a large context. John Vogel, the head of Vanguard for many years, and one of most respected mutual-fund advisors, says that there are as many as $5 billion lost by people who buy and hold, as we've been taught to do by Wall Street, but whose aggregate losses accrete every year by virtue of market timing. That is a unique harm caused to holders, which, under their theory, would not be cognizable, because it would be preempted, and it would be impossible, as a practical matter, for someone to get together with 48 of his or her fellow victims and try to bring a claim to redress that. There's --
04-1371 +++$+++ 17913 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you're --
04-1371 +++$+++ 17914 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- no evidence --
04-1371 +++$+++ 17915 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you're describing the present importance of the -- that. But I don't think you've answered my question about historic -- as a matter of history, we don't have a history of timer claims.
04-1371 +++$+++ 17916 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't have a history of timer claims, but what we also don't have, Justice Stevens, is an indication by Congress, throughout the entire legislative debate or the conference reports or anything, where holder claims which had been brought were perceived to be a problem and were perceived to be within the ambit of what Congress was doing. Because, remember --
04-1371 +++$+++ 17917 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, because they -- I mean, the argument made by the Government: "Of course not, because the only reason they're brought is precisely to evade this congressional legislation." They didn't exist, before; and they've become common, afterwards. Now -- you know, I -- you can say --
04-1371 +++$+++ 17918 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They could --
04-1371 +++$+++ 17919 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that they --
04-1371 +++$+++ 17920 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- they could not be brought under Federal law, before. And I would acknowledge that, because of a series of this Court's decisions, it is easier to prove a purchaser/seller claim, where the facts warrant that, under 10(b) prior to the PSLRA than it was to prove a holder claim. Judge Friendly, in the Weinberger opinion, makes very clear that the value to be attributed to the class-action settlement there has to be diminished because of the difficulty of proof of such claims. But that --
04-1371 +++$+++ 17921 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought that there were -- well, never mind.
04-1371 +++$+++ 17922 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There would --
04-1371 +++$+++ 17923 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'd like to address the point that the Government makes about how this would supposedly affect the SEC's enforcement authority --
04-1371 +++$+++ 17924 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Before --
04-1371 +++$+++ 17925 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- because --
04-1371 +++$+++ 17926 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you get to that, just -- Mr. Frederick, the logic of it -- but -- here, Congress is tightening the requirements for class actions, but then there is this class, which -- Blue Chip did say there's a lot -- room for a lot of abuse in holder classes -- would be left to the State courts for whatever strict or lenient rules. So, why would Congress, with respect to this category, want there to be a more plaintiff-friendly rule than the rule that Congress has just put in place for the purchaser/seller 10(b) actions?
04-1371 +++$+++ 17927 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, I don't think that it's correct to characterize it as more plaintiff-friendly. If you're in Minnesota, you can't bring one of these claims, because State law doesn't recognize it.
04-1371 +++$+++ 17928 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, at least in some States.
04-1371 +++$+++ 17929 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In some States, you -- where the common law or the State statutes recognize these claims, all that we're arguing is that Congress didn't focus on these. In the normal presumption against preemption, you don't, you know, cut through a wide swath of claims where Congress hasn't expressed an intent specifically to preempt them. That's our position, and particularly where the congressional findings --
04-1371 +++$+++ 17930 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you -- you're admitting that an -- that anomaly could be part of the scene, that you'd have a State that allows you to sue for negligence, and doesn't have heightened pleading requirements for holder claims; and so, those claims would be treated more -- in a more plaintiff-friendly way than Federal claims.
04-1371 +++$+++ 17931 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Certainly, just as "breach of fiduciary duty" and "breach of the covenant of good faith and fair dealing" are State-law claims, negligence is a State-law claim, all of those give rise to variations, State by State. But what Congress was getting at were fraud claims that were Federal-law fraud claims. And, when it did so, it was heightening the pleading requirements and, seeing what people were doing was taking what were Federal-law claims and migrating them to State court under, ostensibly, more lenient standards --
04-1371 +++$+++ 17932 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But why, in your theory -- suppose you're right. You're right. I assume that. You can have these holder claims. But why couldn't any buyer, who's -- has to go to Federal court because he has a buyer claim, just say, "I'll bring the holder claim"?
04-1371 +++$+++ 17933 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He can't do that under the --
04-1371 +++$+++ 17934 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because?
04-1371 +++$+++ 17935 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- under the Second Circuit's test, because --
04-1371 +++$+++ 17936 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I know. But what I'm asking is, What's the logic of that? I mean, you're either right or you're wrong. If Congress didn't want to cut off the holder claim, they didn't. So, what's to show that they wanted to cut it off for some people, but not other people?
04-1371 +++$+++ 17937 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The logic is that, for the buyers of those claims, they are meeting the Federal standard of "in connection with" --
04-1371 +++$+++ 17938 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Not in this suit.
04-1371 +++$+++ 17939 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- "purchase or sale."
04-1371 +++$+++ 17940 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Not --
04-1371 +++$+++ 17941 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1371 +++$+++ 17942 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- in this suit.
04-1371 +++$+++ 17943 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, they are, because they're buying -- the reason why these people have -- under the Second Circuit's standard, which we think is correct, is that you had to have bought the stock before the fraud, and you were holding it throughout that period of fraud; and so, your purchase is not "in connection with" the fraud, the misrepresentation. But somebody who sees the prospectus, who sees what Mr. Blodget was saying, which was that there were stocks that were, quote, "a piece of crap," but they were giving them the highest buy recommendation -- those people are making their purchase "in connection with" --
04-1371 +++$+++ 17944 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, if I'm both --
04-1371 +++$+++ 17945 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- "a fraud."
04-1371 +++$+++ 17946 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I bought it in May, in reliance on this ridiculous thing. "Buggy whips make gold." I believed it. I bought buggy whips. Now -- we're now in December. And every month, they kept repeating it. And my claim is, "Yes, I know, I bought it in May, in reliance, but I kept it in July, because I kept seeing it repeated and repeated." Do I --
04-1371 +++$+++ 17947 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think --
04-1371 +++$+++ 17948 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- have a claim?
04-1371 +++$+++ 17949 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think, actually under the Second Circuit's standard, that --
04-1371 +++$+++ 17950 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In the Second Circuit, I do not. But I want to know why not.
04-1371 +++$+++ 17951 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that the reason why not is that if the fraud is affecting the plaintiff's decision to purchase, then that falls within SLUSA, and that is preempted, although it allow -- you are allowed to have a Federal remedy under that standard. You're rechanneled to Federal court. But if you buy -- to use your hypothetical, you buy in January, but the fraudulent misrepresentations are not made until May or June, you're precluded from bringing a Federal-law claim.
04-1371 +++$+++ 17952 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What if I choose not to complain about my buying, I just choose to complain about my holding? It's true, I was harmed because I jumped in. And that's one harm. But it's an entirely separate harm that I was induced to hold it --
04-1371 +++$+++ 17953 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
04-1371 +++$+++ 17954 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- by these continuing misrepresentations. Why can't that part of the suit be brought in State court?
04-1371 +++$+++ 17955 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's our position.
04-1371 +++$+++ 17956 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It is? Okay. So, you --
04-1371 +++$+++ 17957 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Our position --
04-1371 +++$+++ 17958 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you --
04-1371 +++$+++ 17959 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- is that --
04-1371 +++$+++ 17960 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you agree --
04-1371 +++$+++ 17961 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- is that --
04-1371 +++$+++ 17962 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you agree that a buyer --
04-1371 +++$+++ 17963 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
04-1371 +++$+++ 17964 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- who -- whose purchase is excluded, can nonetheless sue --
04-1371 +++$+++ 17965 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I --
04-1371 +++$+++ 17966 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- in a State --
04-1371 +++$+++ 17967 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I'm sorry, I misunderstood your hypothetical. I thought your hypothetical was that if you bought, prior to the fraud --
04-1371 +++$+++ 17968 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no, no, no. You bought --
04-1371 +++$+++ 17969 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you bought --
04-1371 +++$+++ 17970 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- in reliance --
04-1371 +++$+++ 17971 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in connection with --
04-1371 +++$+++ 17972 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- on the fraud --
04-1371 +++$+++ 17973 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- a fraud --
04-1371 +++$+++ 17974 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-1371 +++$+++ 17975 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- then you are -- you are -- you are forced into Federal court --
04-1371 +++$+++ 17976 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why?
04-1371 +++$+++ 17977 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- under SLUSA.
04-1371 +++$+++ 17978 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why? I have --
04-1371 +++$+++ 17979 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because --
04-1371 +++$+++ 17980 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- a buying claim, and I have a holding claim. Why do --
04-1371 +++$+++ 17981 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was --
04-1371 +++$+++ 17982 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is there in the statute that says the two have to go with each other?
04-1371 +++$+++ 17983 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was the decision that Congress made.
04-1371 +++$+++ 17984 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where?
04-1371 +++$+++ 17985 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In this preemption provision --
04-1371 +++$+++ 17986 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I'm not making --
04-1371 +++$+++ 17987 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that your --
04-1371 +++$+++ 17988 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- a buying claim. I -- and there's nothing in my complaint about my buying the stock. I say --
04-1371 +++$+++ 17989 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your --
04-1371 +++$+++ 17990 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "I was induced to hold the stock by these representations that occurred in February, March, April, and May. I bought, in January, also in reliance on fraud, but I'm not complaining about that."
04-1371 +++$+++ 17991 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What the Second Circuit said, which I think is correct, is that -- is that your damages have to be totally and apart from the fraud as a purchaser, and that where --
04-1371 +++$+++ 17992 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they are --
04-1371 +++$+++ 17993 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the reason why they set this timeframe for holder claims is that those kinds of claims that you're talking about, Justice Scalia, would be a classic purchaser/seller-type claim, and you can bring that in Federal court. And that's the point here, that, where you've got long-term holders, and you've got people who purchased in the '80s or in the '70s, and they're being induced to hold for decades, and they may want to make -- they may suffer their damages as a result of collateral that they want to borrow against -- they have no practical means of recovery --
04-1371 +++$+++ 17994 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ As a practical matter, my damages from the holding may be much greater than my damages from the initial purchase. And you're saying, "Tough luck, Charlie. You bought a month too soon -- or a month too late. You should have brought -- bought before the fraud."
04-1371 +++$+++ 17995 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What the Second Circuit said, which I think is correct, is that that becomes a level of line-drawing that we don't think Congress did intend to get into.
04-1371 +++$+++ 17996 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I agree with you. But that's the trouble. Because, in order to make the Second Circuit's argument, you have to say the following, "Congress couldn't have intended to allow people who have a buyer claim to make a totally separate holder claim, because that would gut the statute, and they wouldn't want to engage in a futile act." But now you're asking us to do about the same thing, when you talk about a person who doesn't have the buyer claim and you're trying to get us to say, "Congress thought -- Congress thought an individual action there, their own separate action in the State court, wasn't good enough; it would have wanted to preserve the holder claim for them." Now, that's possible, but it requires me to think Congress is going through quite a few hoops here.
04-1371 +++$+++ 17997 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The hoops that Congress went to, and which I have articulated, in the congressional findings, are that the particular harm that Congress was addressing in SLUSA -- this was a narrow -- you know, this was a narrowly framed preemption as to Federal-law claims, because a -- the PSLRA only governed Federal-law claims. And if you could not bring a holder claim under Federal law, because of Blue Chip Stamps, you were forced into State court. Okay? So, when Congress is debating the evasion of the PSLRA, it is only talking about Federal-law claims. And there's nothing in the legislative history that they've cited, or that we have found, to suggest that Congress gave any thought to preempting a class of holder claims. Now, certainly --
04-1371 +++$+++ 17998 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Frederick, can I ask sort of a background question? Ever since Blue Chip -- it's been on the books for a long time -- has Congress ever considered legislation that would expand the 10(b)(5) private remedy to include holder claims?
04-1371 +++$+++ 17999 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not aware of legislation, Your Honor.
04-1371 +++$+++ 18000 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not, either. I -- just wondering if there was some we could --
04-1371 +++$+++ 18001 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But what -- what this Court did say, in Blue Chip Stamps, was that, when the Birnbaum decision -- and it was an interpretation of "in connection with purchase or sale" by what one Justice on this Court described as the "Mother Court of the Court of Appeals" -- it was Chief Judge Swan, Judge Augustus Hand, and Judge Learned Hand -- and they construed the words "in connection with purchase or sale" to mean the plaintiff's purchase --
04-1371 +++$+++ 18002 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but Blue --
04-1371 +++$+++ 18003 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- or sale.
04-1371 +++$+++ 18004 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- but Blue Chip did not adopt the rationale of the Birnbaum case.
04-1371 +++$+++ 18005 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think it -- it did adopt the rule, though, as a basis of the wording. And if you look at page 733 of the Court's opinion, it was adopting the rationale, in the sense that it saw Birnbaum as a construction of the language, and it adopted that. And then in note 5, when Justice Rehnquist's opinion says, "It would be odd to read 'in connection with purchase or sale' to give a," quote, "'cause of action to everybody in the world,'" I think it's clear that that was suggesting that State law could recognize something that this Court said was not recognized under Federal law.
04-1371 +++$+++ 18006 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Frederick, it seems to me that the language "in connection with," you know, whether it means what Blue Chip meant or whether it means what the statute meant, is at least ambiguous. And, if that's the case, why shouldn't we be guided by the Securities and Exchange Commission's determination, under Chevron, Mead, you know, anything but --
04-1371 +++$+++ 18007 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This statute is a -- about private civil actions, and it doesn't affect the SEC's enforcement authority or any action. In fact, the SEC doesn't derive any greater power, or lesser power, as a result of the enactment of SLUSA. It is entirely legislated against private civil actions.
04-1371 +++$+++ 18008 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The --
04-1371 +++$+++ 18009 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So, the SEC --
04-1371 +++$+++ 18010 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Have we not given any weight to SEC determinations, as to its interpretation, where civil actions are involved? I'm surprised at that.
04-1371 +++$+++ 18011 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This is an act, Justice Scalia, where the SEC's enforcement authority isn't affected one jot. And so, I think it would be a strange application of Chevron, or even Skidmore, deference to say that the SEC gets some special weight because it's construing words in an enactment --
04-1371 +++$+++ 18012 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-1371 +++$+++ 18013 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that's addressed to private --
04-1371 +++$+++ 18014 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you know --
04-1371 +++$+++ 18015 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- civil litigation.
04-1371 +++$+++ 18016 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- whether the SEC filed an amicus brief in Blue Chip?
04-1371 +++$+++ 18017 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. And it took the position there that "in connection with" did have a broad construction. And that position was rejected.
04-1371 +++$+++ 18018 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It took the position that the Seventh Circuit took in Eason, didn't it?
04-1371 +++$+++ 18019 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-1371 +++$+++ 18020 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. [Laughter.]
04-1371 +++$+++ 18021 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the Court, there, I don't think was -- it said that it was not in -- giving any deference to the SEC's position, because it was an implied private right of action that this Court had recognized, and that the lower courts had recognized.
04-1371 +++$+++ 18022 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Before you finish -- there's two questions I would like to ask him. One is -- we know about the holder claims. They are saved for State actions. They're not preempted. What else would fall in this category that is not -- that SLUSA doesn't affect, that can be brought as class actions in State court?
04-1371 +++$+++ 18023 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there are class actions that concern breaches of fiduciary duty, negligence. And the question of whether or not they are "in connection with purchase or sale" is going to have a profound impact on whether or not those claims are also preempted. I can't spell out for you what the necessary consequences are, but there are a lot of State-law claims brought under Blue Sky laws and other State remedies that traditionally have been observed and brought, even as State claims, but, under a -- you know, the all-encompassing parameter of "in connection with purchase or sale" advanced on the other side, a decision that would favor that could have unknown preemptive consequences, which I would submit would be contrary to the normal way you would put Congress to the test of determining, "Did it intend to preempt those claims?" before adopting a broad interpretation that would do so. And if I could point out --
04-1371 +++$+++ 18024 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You --
04-1371 +++$+++ 18025 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- one of the strange things about this case and the SEC's position is that district courts are going to be put in the rather unusual position of paying a rather high cost, because if they are confronted with a removal of a case brought under State law, where the defendant asserts that it is preempted under SLUSA, and the SEC hasn't taken any action at all, and has expressed no interest in this particular area, the district court, to determine preemption, has to intuit whether or not this is within the SEC's enforcement authority. So, you have -- ordinarily, you would have private plaintiffs suing for wrongdoing on the same side of the case as the SEC, as the public enforcer. But, here, you have them at loggerheads. And the only way that the district court can properly figure that out, whether or not the private victim can get a private remedy, is to cut back on the SEC's enforcement authority, will -- if you will -- would exact an awfully high cost. I would submit that that kind of an anomaly is a rather unusual one, particularly where the SEC isn't a party in the case, and it is not being invited to submit a brief. And yet, district courts, in order to determine the preemption question here, are going to have to rule against the SEC in order to give a private remedy -- to recognize a private remedy under State law, or to cut back on a remedy under State law by holding that it is within the SEC's enforcement jurisdiction. Ultimately, what Merrill Lynch here is asserting is an immunity for a fraud that uniquely affects a certain class of holders who do not have a remedy under Federal law. And I would submit that, where any party is seeking to get an immunity from an intentional fraud, the party bears a heavy presumption that that is, in fact, what Congress intended. And I would submit to you that, both with the language of the statute, the findings that Congress made in the legislative history, Congress did not express an intent to eliminate holder class actions of greater than 49 persons.
04-1371 +++$+++ 18026 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I agree with that presumption against preemption, where the question is, Does this Federal statute, which says nothing about preemption, accidentally preempt some State law? -- that there, the presumption makes sense. But here, you have a statute, the whole object of which is preemption. And I'm not sure that what you shouldn't do in that case is just give the language its most reasonable meaning, with no thumb on either side of the scale.
04-1371 +++$+++ 18027 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But it's preemption to rechannel. And that's the important point, Justice Scalia. The point was not to allow State-law claims under State-court systems, but to rechannel those actions into Federal court. And if there are a category of victims of frauds who have no Federal remedy, it doesn't make sense to infer that Congress, without saying so, left those people without any remedy whatsoever.
04-1371 +++$+++ 18028 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Frederick, I want to be sure of one question. I'm not sure I understood your argument about how the district court has to deny the right to the SEC. But the SEC wouldn't be bound by the district court's decision, would it?
04-1371 +++$+++ 18029 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it depends on how the courts would construe the SLUSA cases as affecting the "in connection with purchase or sale" in the SEC enforcement authority. If you were to accept the premise that the Court's Zandford and O'Hagan decisions are binding on the SLUSA preemption language, anytime a court is construing -- May I finish, Mr. Chief Justice?
04-1371 +++$+++ 18030 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Certainly.
04-1371 +++$+++ 18031 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Anytime a court is construing that language, in the SLUSA context, it would necessarily have a collateral impact on the SEC's enforcement authority in 10(b).
04-1371 +++$+++ 18032 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but the SEC could relitigate it, I would think. It wouldn't be bound by the judgment in a private suit.
04-1371 +++$+++ 18033 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could certainly relitigate it. But the point of the persuasive authority of a construction of "in connection with purchase or sale," I think, would have effects that are inappropriate.
04-1371 +++$+++ 18034 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Counsel.
04-1371 +++$+++ 18035 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
04-1371 +++$+++ 18036 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Kasner, you have 3 minutes remaining.
04-1371 +++$+++ 18038 +++$+++ FALSE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Counsel referred to the findings in the legislation. And I know this Court will go back and review those. The -- finding number 5 does not use the word "certain" anywhere in it. What finding number 5 does say, however, "It is appropriate to enact national standards for securities class-action lawsuits involving nationally traded securities while preserving the appropriate enforcement powers of State securities regulators and not changing the current treatment of individual lawsuits," quote/unquote. Justice Breyer and Justice Ginsburg asked questions that I think illustrate that Congress could not have intended such an anomalous result by allowing holders' claims to proceed as nonpreempted. Justice Breyer, as a practical matter, you are 100 percent right in the premise of your question. If this Court agrees with -- that the court below is correct, every single securities class action that is brought in Federal court from that day forward will have a companion claim brought with it, asserted by holders. And it's not simply holders in the fashion that Mr. Dabit appears, which is somebody who claims, "I would have sold, had I, essentially, known inside information," a proposition which Judge Friendly expounded on in the Levine case in the Second Circuit, but you will also have holders -- you will also have claims by people who come to court, in the State court, and say, "You know, I would have bought securities if you had not issued such unduly pessimistic projections," just as was the case in the Blue Chip Stamp case. And imagine the impact that that result would have on the safe harbor, which Congress enacted with the PSLRA to protect public companies in the United States and abroad, encouraging them to make forward-looking statements. If you allow a result which affords putative people, who would have bought and would have sold, in State court where the safe harbor doesn't apply, you will absolutely be gutting the statutory protections that Congress was seeking to protect. I'd like to just make one point about the Weinberger verse -- the Weinberger v. Kendrick case that is mentioned. That involved an approval of a Federal-court class action where State-law holders' claims were being released. In fact, the consideration that was approved there was less, because the claims were weaker. We've heard a lot, Your Honors, about why Congress didn't mention holders' claims by name. The reason they didn't mention holders' claims by name is that it wasn't until SLUSA was enacted and creative plaintiff strike-suit lawyers brought holders' claims, in an effort to avoid SLUSA, that this problem became exacerbated. But there is no doubt that the plain and natural meaning of SLUSA picks up all claims by any private party in connection with the purchase or sale of security. If there are no --
04-1371 +++$+++ 18039 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's surprising that the holder claims didn't respond to Blue Chip. I think your argument would suggest they should have responded to Blue Chip by bringing a whole host of holder claims in the State court.
04-1371 +++$+++ 18040 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-1371 +++$+++ 18041 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1371 +++$+++ 18042 +++$+++ TRUE +++$+++ MR. KASNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-1371 +++$+++ 18043 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. The case is submitted.
04-1376 +++$+++ 18048 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument first this morning in Fernandez-Vargas versus Gonzales. Mr. Gossett.
04-1376 +++$+++ 18050 +++$+++ FALSE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Using the ordinary tools of statutory construction, it is clear that Congress intended the 1996 reinstatement provision to apply only prospectively. But even if Congress had no specific intent as to the retroactive applicability of that provision, under Landgraf it would, nonetheless, not apply in this case. Applying it to aliens who reentered before IIRIRA's effective date would give the statute an impermissibly retroactive effect. Before IIRIRA, such aliens were entitled to seek, and eligible to receive, discretionary relief from deportation. Now if the provision is applied to them, they are not.
04-1376 +++$+++ 18051 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Wouldn't it be the same result if Congress decided, for example, to take away one of the available methods of seeking discretionary review, just saying, "We're not going to have that available anymore"?
04-1376 +++$+++ 18052 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Congress might change the specific types of review that are available, and then this Court would have to -- but would either have to -- would have to engage in a Landgraf analysis of whether --
04-1376 +++$+++ 18053 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that would be --
04-1376 +++$+++ 18054 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that would be --
04-1376 +++$+++ 18055 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- a pretty easy case, wouldn't it? I mean, if you have a mechanism saying some -- an alien in this position can apply for, you know, this type of relief, this type of relief, or another, and they say, "Well, we're not going to allow this type of relief anymore. We're going to change those" -- was -- that's a pretty easy case, under Landgraf, isn't it?
04-1376 +++$+++ 18056 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- yes, Mr. Chief Justice. And the transition from suspension of deportation to cancellation of removal would fall into that category. However, the reinstatement provision talks in terms -- in categorical terms of any forms of relief from deportation. It doesn't specify the particular types of relief that would be available --
04-1376 +++$+++ 18057 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But why should that --
04-1376 +++$+++ 18058 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and, therefore --
04-1376 +++$+++ 18059 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- why should that make a difference as to whether it's retroactive or not? I mean, if it -- it seems to me you look to the activity that it governs. And the activity that it governs is the deportation or removal from now on. Now, you could argue that -- if you want, that there are some due process violations in making that prospective law affect past activities as they do. I mean, let's -- one of the examples given in Landgraf, or at least in my concurrence in Landgraf, was a change of the law procedure so that expert testimony, which previously was not admissible, is now admissible. Now, the person who committed the crime that's involved in the next case that comes up when that new procedural rule is applied, he can say, "Well, you know, you've changed -- you've changed the rules on me. When I committed the crime, the expert testimony wasn't admissible. Now it is admissible. That's not fair." Well, whether it's fair or not is something we can inquire into under the due process clause, but nobody would say that that procedural change is retroactive. And it --
04-1376 +++$+++ 18060 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Two --
04-1376 +++$+++ 18061 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- seems to me that's what's going on here.
04-1376 +++$+++ 18062 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Two responses, Justice Scalia. The first is, I think it's unfair to say that this provision merely regulates the procedure of removal.
04-1376 +++$+++ 18063 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That wasn't my point. My point --
04-1376 +++$+++ 18064 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
04-1376 +++$+++ 18065 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- was, you look to the -- to the activity which is governed by the new law. In the case of the -- of the expert testimony, the activity governed is the trial, so that law applies prospectively to all future trials. So, also, in this case, this law applies prospectively to all future removals, QED. It is not retroactive. Now, you may have an argument, although I don't think it's a very good one, that there are due process problems involved in this prospective law. But I don't see how you can call the law retroactive.
04-1376 +++$+++ 18066 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, the portions of the reinstatement provision, besides for the provision barring other forms of relief, I would agree, are simply procedural provisions. And, again, there might be due process challenges to those, but I -- we're not raising those here. It's the provision that says that merely because you illegally reentered the country at some prior date, you will -- because you illegally reenter the country, you will be ineligible, that I think can only fairly be categorized as regulating the process of reentry, not the process of removal. It's -- -
04-1376 +++$+++ 18067 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That doesn't affect --
04-1376 +++$+++ 18068 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the fact that you --
04-1376 +++$+++ 18069 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- doesn't affect his reentry at all. His reentry occurred. It -- how could it possibly have anything to do with his reentry?
04-1376 +++$+++ 18070 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under Your Honor's analysis, a statute that said that if the Attorney General finds that an alien has reentered in the past, the alien may be sentenced to 15 years in prison, would also merely be procedural and governing the sentencing rather than the underlying act of reentry. I think that parallel hypothetical, which obviously would -- would violate the ex post facto clause --
04-1376 +++$+++ 18071 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That would apply new penalties to the reentry. This law does not apply any new penalties to the reentry, it just -- it just establishes a new regime for removing the person who has reentered.
04-1376 +++$+++ 18072 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the act of removing the right to seek adjustment of status, suspension of deportation, voluntary departure, that is a new penalty. In the Landon v. Placencia case, in fact, this Court called those "substantive rights." It called, specifically, voluntary departure and suspension of deportation "substantive rights." That's at 459 U.S. 26 to 27. Therefore, I think it's unfair to say that the removal of those substantive rights is merely a procedural change. Of course, we don't even get into the question of whether there's a procedural change here, or a substantive change, unless we get to stage two of the Landgraf analysis under the -- under, I would say, either the majority's approach in Landgraf or your approach, Justice Scalia, because the first stage of Landgraf is about this Court's deferring to Congress's specific intent as to the applicability of a statute, because if Congress has decided whether a statute should apply prospectively or retroactively, this Court defers to that, outside of the ex post facto context. And I think here it's clear that, in fact, Congress intended the 1996 reinstatement provision to apply only prospectively.
04-1376 +++$+++ 18073 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Has any -- a number of courts have considered this question -- have any of them accepted your first -- your argument that the statute is clear that it is nonretroactive?
04-1376 +++$+++ 18074 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Ginsburg, both the Sixth and the Ninth Circuits have accepted that argument. They've accepted it in a slightly different form than we are currently raising, because before the Government's brief in this case, no one has laid out the history of the 1950 and 1952 statutes as carefully as the Solicitor General's Office now has. But both the Sixth and Ninth Circuit have held that this statute is exclusively prospective by a comparison between the 1952 Act and the 1996 Act.
04-1376 +++$+++ 18075 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'd -- I'll have to look at those decisions. It was my impression that they did, indeed, hold that it was retroactive, but not on the ground that Congress had clearly spoken to the point, so that you didn't need any further inquiry.
04-1376 +++$+++ 18076 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Both -- they didn't use the term "clearly," because, of course, as we explained in our brief, there's an asymmetry in retroactivity analysis, and using the ordinary tools of statutory construction, one can demonstrate a prospective intent on the part of Congress. But both the Sixth and the Ninth Circuit, in the Bejjani case and the Castro-Cortez case, did stop their retroactivity analysis at stage one of the Landgraf inquiry --
04-1376 +++$+++ 18077 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but --
04-1376 +++$+++ 18078 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- decided that.
04-1376 +++$+++ 18079 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- I think that's because they were using the version of stage one that you are using, which includes, in the consideration of whether Congress has been clear, an inquiry into whether the -- whether the law is retroactive or not, which, as I understand it, should be left to stage two, exclusively.
04-1376 +++$+++ 18080 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-1376 +++$+++ 18081 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Your analysis in your brief mingles the two. It says one of the factors that you can take into account in stage one is whether it's retroactive. And as I -- I don't understand Landgraf to speak that way. I thought you were supposed to use all other indicia of legislative intent, other than the normal rule against retroactivity, in deciding congressional intent, and then you go to stage two, which is where retroactivity comes in.
04-1376 +++$+++ 18082 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In both the St. Cyr's case and the Lindh case, this Court did invoke the presumption against retroactivity in its stage one analysis. But, more generally, I don't think we need a presumption to win this case. I think that -- under stage one, under an inquiry into congressional intent -- what we have in this case is a history of Congress providing for the reinstatement of deportation that goes back to 1950. In 1950, Congress passed a reinstatement provision that said that for the specified aliens -- and it was only a subgroup -- if they were deported and reentered, they would be -- that their previous deportation order would be reinstated. The INS -- and that statute's quoted at page 2 of the Government's brief -- the INS interpreted that statute as applying only prospectively, and only applying to an alien who was deported, and, therefore, obviously reinstated -- reentering after the effective date of that statute. Now, in 1952, Congress, evidently dissatisfied with an interpretation -- with a reinstatement provision that was only prospective, added the "before or after" language to the reinstatement provision. They said, under this 1952 Act, "If you were deported, either before or after the effective date of the INA, your deportation order can be reinstated." But in 1996, Congress removed that "before or after" clause. Congress expanded the scope of reinstatement and provided that a much broader category of reentrants could be subject to reinstatement.
04-1376 +++$+++ 18083 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but as the Government points out, that "either before or after" applied to when you had been deported --
04-1376 +++$+++ 18084 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Scalia.
04-1376 +++$+++ 18085 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- not to when you reentered. And what we're -- what you're arguing for here is a rule that goes from the time of reentry, not from the time of deportation. So, it's not really a parallel.
04-1376 +++$+++ 18086 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Actually, Justice Scalia, under our stage one argument, we are now arguing that, in fact, the Government is right, that the 1952 Act was tied to the date of deportation. What we don't understand is how the Government thinks that helps its case, because the obvious and necessary consequence of that is that the removal of the "before or after" clause in 1996 must imply that the 1996 provision only is triggered by post-enactment deportations.
04-1376 +++$+++ 18087 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's an --
04-1376 +++$+++ 18088 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
04-1376 +++$+++ 18089 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that may be a reasonable inference, but I think it's a real stretch to say that it "clearly establishes." When you're talking about a statute, and you say something's "clear," you want to be able to point to actual words. And, on the other side, the Government points out that, elsewhere in IIRIRA, Congress specifically delineates when it wants the statute to apply prospectively only. And they did not do that in this case.
04-1376 +++$+++ 18090 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They also specifically delineated, in some context, Mr. Chief Justice, that it would be retroactive. The Government's primary comparison -- and I think it's an important one for this Court to focus on -- is to the criminal reinstatement provision, which is section 1326 -- 8 U.S.C. at 1326. Now, the Government asserts that that provision is exclusively prospective, and, therefore, that the comparison should be that, in this context, the reinstatement provision must be retroactive. But, in so arguing, the Government hides, in ellipses in its brief, on page 14, the actual text of the provision of the criminal -- the temporal applicability of the criminal reentry provision. What Congress actually said was that deportations that predate IIRIRA could trigger reinstatement, but reentries post- -- only reentries post-dating IIRIRA could trigger it. So, in fact, what Congress was doing in the criminal context was reaching back and saying, "We're changing the consequences of pre-enactment deportations, but not pre-enactment reentry." So, the comparison, if anything, I think, strengthens our case. I'd say --
04-1376 +++$+++ 18091 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm sorry, I -- you lost --
04-1376 +++$+++ 18092 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
04-1376 +++$+++ 18093 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- me there.
04-1376 +++$+++ 18094 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry.
04-1376 +++$+++ 18095 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can you --
04-1376 +++$+++ 18096 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's on --
04-1376 +++$+++ 18097 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm looking at page -- -
04-1376 +++$+++ 18098 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- page --
04-1376 +++$+++ 18099 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm --
04-1376 +++$+++ 18100 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's quoted on page 27, note 15, of our opening brief. It's section 324(c) of IIRIRA. I can read it, exactly, "The amendment made by subsection (a) expanding the criminal reentrant provision shall apply to departures that occurred before, on, or after the date of enactment of this Act, but only with respect to entries and attempted entries occurring on or after such date." The Government omits the fact that it applies to deportations pre-IIRIRA. So, I think that there are two cases that this Court has --
04-1376 +++$+++ 18101 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't how --
04-1376 +++$+++ 18102 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- decided --
04-1376 +++$+++ 18103 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't see how that undermines their point that when Congress wants to specify that something "shall apply prospectively only," as they quote, "only with respect to entries occurring on or after a date," they spell it out. And they did not similarly spell it out in the provision on -- that you suggest is prospective only.
04-1376 +++$+++ 18104 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice -- Mr. Chief Justice. I agree that this doesn't explicitly spell it out in the criminal provision, but I don't think we need to explicitly spell it out -- or we -- that this Court needs to find that Congress explicitly spelled out the prospective applicability. I think that the Lindh case and the American National Red Cross case both demonstrate that when Congress changes text over time, it matters. In the Lindh case, of course, there were two provisions, one of which had retroactivity language, the other which had none, and -- and this Court intuited that, "Therefore, Congress must have meant that the -- the section without retroactivity language would be exclusively" --
04-1376 +++$+++ 18105 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I wish we could get some new vocabulary. Terminology is destiny, and I really don't follow the discussion of speaking about whether it was prospective or retroactive. I don't think, whichever way it applied, it is retroactive. But the issue still remains, Did Congress intend pre-IIRIRA reentries to be covered or not? I --
04-1376 +++$+++ 18106 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Was it triggered?
04-1376 +++$+++ 18107 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- I would consider that still prospective, but just note my --
04-1376 +++$+++ 18108 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-1376 +++$+++ 18109 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that I don't --
04-1376 +++$+++ 18110 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I think, actually --
04-1376 +++$+++ 18111 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- go along with you when you force this terminology on me, whether Congress intended it to be retroactive. As I see it, the issue is whether Congress intended it to apply to reentries that occurred before IIRIRA was enacted. I would not consider that retroactive, but it's still an open question what Congress intended.
04-1376 +++$+++ 18112 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, I agree -- I agree that that's for purposes -- that terminology is better for stage one. It's -- whether it was triggered by a pre-enactment deportation or reentry.
04-1376 +++$+++ 18113 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Aren't there several possible explanations for why Congress would leave the "before or after" language out of the -- out of the new provision? They might have wanted it just to be decided under the Landgraf framework. Isn't that one possibility? Or they might have thought that "before or after" referred to the enactment of the INA, which would be 1952, and, therefore, irrelevant by the time this was passed.
04-1376 +++$+++ 18114 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think either of those possibilities is plausible, Justice Alito. The first is implausible because we know that the INS had already interpreted the 1950 Act, which was silent as to applicability, to be exclusively prospective. And the second is implausible because the -- the "before or after" provision in the 1952 Act, which would presumably have been brought forward, the 1996 Act, had they wanted to, specified the date of enactment of this Act. It would have been about this Act. And, in fact, the Senate proposal to modify the first -- the provision also would have left it in terms of this Act, not of a specific date of 1952, which would have been the INA date. More generally, I think that with this history of the 1950 Act, the 1952 Act, and the 1996 Act, any interpretation of the 1996 Act as being retroactive, or as being ambiguously retroactive, doesn't pay adequate deference to Congress's choice over time that this Act should apply prospectively in 1996.
04-1376 +++$+++ 18115 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why would -- I find it difficult to understand why Congress wouldn't have wanted this to apply to illegal entrants who had come in before IIRIRA. Bear in mind, these are people who have been deported once, already deported once, and then, in violation of the law, come back in again. And there was a regime for deporting them, which allowed certain variations, which are eliminated by IIRIRA, permission for them to stay. You really think Congress wanted to keep faith with the people who had, already have -- having been deported once for illegal reentry -- - illegal entry -- come in again -- and you think Congress says, "Oh, well, you know, we have to keep faith with these people who are violating our law, and not -- and not deport them except under the conditions that existed when they broke the law to reenter"? I find that a very -- what should I say? -- touching -- [Laughter.]
04-1376 +++$+++ 18116 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- attitude for Congress to have.
04-1376 +++$+++ 18117 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, clearly Congress was attempting to change -- or to increase the disincentives to reentry. At the same time that they modified the reinstatement provision, they extended the criminal reentry provisions.
04-1376 +++$+++ 18118 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not only the --
04-1376 +++$+++ 18119 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So, the question isn't --
04-1376 +++$+++ 18120 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- disincentives.
04-1376 +++$+++ 18121 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- whether --
04-1376 +++$+++ 18122 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They were trying to get out of the country people who were here illegally, two-time losers who were here illegally for the second time.
04-1376 +++$+++ 18123 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The question, however, though, is not whether they were trying to change that consequence. The question is whether they did so retroactively, because this Court presumes that if Congress is trying to change the consequences of an action that has occurred in the past in substantive ways, Congress should say so explicitly, because, as your -- you have said in previous decisions, it is a foundational principle of Western law that primary -- the consequences of primary conduct are judged as --
04-1376 +++$+++ 18124 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But is that --
04-1376 +++$+++ 18125 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of the time of that conduct.
04-1376 +++$+++ 18126 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- so here? I want to know, if your client had known about this law or gone to a lawyer and said, "What do I do now?" wouldn't the lawyer have said, or would he have said, "Just leave. Leave the country, quick, before you're caught. Now, when you get back to Mexico, you can apply and point out you've married an American citizen, and then you'll be able to come in, in all likelihood." And if I'm right about that, the Act does not attach new consequences to old behavior, it attaches new consequences to new behavior; namely, the act of staying within the United States, when you could leave.
04-1376 +++$+++ 18127 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I presume, Justice Breyer, you mean at the time that Congress enacted IIRIRA?
04-1376 +++$+++ 18128 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean when this particular --
04-1376 +++$+++ 18129 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Was --
04-1376 +++$+++ 18130 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- provision was passed --
04-1376 +++$+++ 18131 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That --
04-1376 +++$+++ 18132 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- a week later, he goes to a lawyer, and the lawyer says, "You'd better get out of here fast, because if you're caught while you're here, you're married now, and you won't be able to take advantage of that. It would be terrible. So, go to Mexico. Then there is no problem." And if, in fact, I'm right, you see what I'm -- I find your argument excellent on the first part, but so is the Government's. So, I think there's a kind of wash there, so I'm looking to the second part. And there, you're just said, it attaches new consequences to old behavior. So, I'm asking you, if it doesn't attach the new consequences to old, but, necessarily, plus new behavior -- namely, remaining.
04-1376 +++$+++ 18133 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Breyer, it does not, because had he left in 1996, upon enactment of IIRIRA, he would have been inadmissible for 5 years --
04-1376 +++$+++ 18134 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well --
04-1376 +++$+++ 18135 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- as a result of having left. Whereas, otherwise, otherwise, if he had stayed in the country, he would be eligible to apply for suspension of deportation --
04-1376 +++$+++ 18136 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Being -- if you get married -- if you're outside the country and you marry an American, you're married to an American and you can't come in for 5 years?
04-1376 +++$+++ 18137 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As a result of his initial -- having reentered --
04-1376 +++$+++ 18138 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ As a result of --
04-1376 +++$+++ 18139 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- within 5 years --
04-1376 +++$+++ 18140 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the initial deporting order.
04-1376 +++$+++ 18141 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As a result of his reentry five -- within 5 years of the date of his 1981 deportation, he would be ineligible for readmission for 5 years, had he left the country.
04-1376 +++$+++ 18142 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, his choice is this Act or -- in which case, you never can get back, if you're caught -- or go to Mexico, wait 5 years.
04-1376 +++$+++ 18143 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Or 10 to 20 years, if --
04-1376 +++$+++ 18144 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Ten to 20 years?
04-1376 +++$+++ 18145 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Ten to 20 years if you're caught, under this Act, is my understanding. It depends on -- the Government --
04-1376 +++$+++ 18146 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, no. I mean, he either stays in the United States --
04-1376 +++$+++ 18147 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1376 +++$+++ 18148 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- in 10 to 20 years --
04-1376 +++$+++ 18149 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, we -- if he stays in the United States, he's -- and is --
04-1376 +++$+++ 18150 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is caught.
04-1376 +++$+++ 18151 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- entitled to apply for these forms of relief from deportation, then he will -- then he can become an American citizen, or become a lawful permanent resident, as a result of the forms --
04-1376 +++$+++ 18152 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If you lose this --
04-1376 +++$+++ 18153 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of relief that existed --
04-1376 +++$+++ 18154 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- case -- if you lose this case, then his choice would be: stay here, get caught, and you never can come back, or 10 to 20 years?
04-1376 +++$+++ 18155 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Ten to 20 years.
04-1376 +++$+++ 18156 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I see.
04-1376 +++$+++ 18157 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Ten to 20.
04-1376 +++$+++ 18158 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Or go to Mexico, and you can come back in 5 years.
04-1376 +++$+++ 18159 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1376 +++$+++ 18160 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
04-1376 +++$+++ 18161 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, of course, at the time -- pre-IIRIRA, the choice was: stay in the country and seek -- and seek American citizenship through these other routes. And so, the forcing of him to leave is itself a retroactive effect of the enactment of this Act --
04-1376 +++$+++ 18162 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, in this --
04-1376 +++$+++ 18163 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- because --
04-1376 +++$+++ 18164 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- in this case, he was married after the effective date of the new statute.
04-1376 +++$+++ 18165 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Kennedy.
04-1376 +++$+++ 18166 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Did Judge McConnell, in the Tenth Circuit, suggest -- because he discussed this -- suggest that the result might have been different if the marriage had been before?
04-1376 +++$+++ 18167 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, he did suggest that. And several courts have --
04-1376 +++$+++ 18168 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why would that be consistent with his -- with his analysis?
04-1376 +++$+++ 18169 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice -- Judge McConnell and several other courts have focused on the types of relief that an alien was eligible for as of the effective date of IIRIRA. We think that's the wrong first inquiry. We think that the way to approach the stage two analysis is on a categorical basis, because Congress, in the statute, said that, at the time of reentry, the mere act of reentry wouldn't categorically preclude you from seeking any forms of relief from deportation. And so, had Congress wanted to change that, it would have -- it would have had to do so retroactively on a categorical basis. But even if one accepts Judge McConnell's analysis of the forms of relief you're entitled to as of that date, at the very least, at that point, my client would be eligible to seek both voluntary departure and cancellation of removal. We think he'd -- also should be eligible to seek adjustment of status, because, although it's true that he is not -- he was not, at that point, married to his now-wife, adjustment of status was a -- is a defense from deportation, and he would have been able to get married even if put into deportation proceedings. And given that, at that point, he and his now-wife had -- already had a 8-year-old son --
04-1376 +++$+++ 18170 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but --
04-1376 +++$+++ 18171 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- there would be no question that it was a real marriage.
04-1376 +++$+++ 18172 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- it does point out that your argument is a difficult one, because this expectation that you argue for is that, number one, he has an expectation that he'd be able to adjust his status even after Congress has changed the law respecting reinstatement.
04-1376 +++$+++ 18173 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that's --
04-1376 +++$+++ 18174 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ This is --
04-1376 +++$+++ 18175 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a difficult analysis.
04-1376 +++$+++ 18176 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- this is a far-reaching expectation on his part.
04-1376 +++$+++ 18177 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The only expectation, Justice Kennedy, that we are proposing is that my client -- and aliens, generally, because this is an analysis that must be done on a categorical basis -- reasonably expected that Congress wouldn't change the consequences of their reentries far in the past without doing so explicitly.
04-1376 +++$+++ 18178 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Am I wrong in thinking that readjustment based on his marriage was not one of the modes of relief that he could have had in '82 or -- that that didn't come in until much later, is that so?
04-1376 +++$+++ 18179 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is true, Justice Ginsburg.
04-1376 +++$+++ 18180 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, any -- so, that was a consequence that certainly wasn't taken away from him, because it wasn't there in '82.
04-1376 +++$+++ 18181 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In 1982, Justice Ginsburg, my client reasonably presumed that the act of reentry, while itself a crime and while itself rendering him deportable, wouldn't categorically preclude him from seeking relief from deportation if, at a future date, he might become eligible to adjust in some way, either through suspension of deportation by having been here for 7 years, or by marrying an American citizen, or by having a reasonable claim for asylum. All of these were routes to stay, despite illegal entry or reentry.
04-1376 +++$+++ 18182 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even though what --
04-1376 +++$+++ 18183 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why would he think that? Why wouldn't he just think, being here illegally, he is subject to being deported under such rules as the country has for deporting people who are here illegally, whatever they may be, from time to time? That would be my expectation if I came in illegally, in violation of the law. I'm saying, "I'm here at the sufferance of the country. I shouldn't be here. And whatever rules they have for kicking me out are the rules that I'll have to abide by."
04-1376 +++$+++ 18184 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The implications of your --
04-1376 +++$+++ 18185 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ "I'm lucky not to be in jail."
04-1376 +++$+++ 18186 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, the implication of your argument is that a wrongdoer has no reasonable expectation in the law staying constant. But, of course, both the Hughes Aircraft and the Landgraf decisions are cases in which a conduct was clearly illegal or unlawful at the time it was done, but, nonetheless, a change in the law would retroactively change the implications of that unlawful conduct. And this Court, in both those cases, held that it was -- that such change cannot be effected retroactively.
04-1376 +++$+++ 18187 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, in St. Cyr --
04-1376 +++$+++ 18188 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Under the --
04-1376 +++$+++ 18189 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- was -- in St. Cyr, I think it was he pled guilty under one set of expectations, and that's what the Court fastened on. Isn't that so?
04-1376 +++$+++ 18190 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, Justice Ginsburg. However, the parallel in St. Cyr is that at the time the immigrant in St. Cyr pled guilty, he was presumptively deportable as a result of having pled guilty to a crime. He was eligible to seek discretionary relief from deportation, which this Court called "a matter of grace" in the St. Cyr decision.
04-1376 +++$+++ 18191 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, he --
04-1376 +++$+++ 18192 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Similarly, here --
04-1376 +++$+++ 18193 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- might not have pled guilty if there was a different set of rules. I thought that was what drove the Court's opinion.
04-1376 +++$+++ 18194 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's unclear to me whether or not the St. Cyr case would also generalize to someone who simply was convicted of a crime at that date. And there's a debate in the lower courts about that. But, more generally, in my client's context, at the very least his decision to stay in the United States for 7 years, and thus become eligible for suspension of deportation, and then not to leave thereafter, was, itself, a very similar choice to that of the alien in St. Cyr. It's a conscious decision to remain here, rather than to leave.
04-1376 +++$+++ 18195 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If he had left voluntarily under the pre-'96 law, would he still have been subject to criminal prosecution for his prior illegal entry if he had later come back into the United States?
04-1376 +++$+++ 18196 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure, Your Honor. I don't know.
04-1376 +++$+++ 18197 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
04-1376 +++$+++ 18198 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If there are no further questions, I'd like to reserve the remainder of my time for rebuttal.
04-1376 +++$+++ 18199 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Gossett. Mr. Srinivasan.
04-1376 +++$+++ 18201 +++$+++ FALSE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: Section 1231(a)(5) aims to streamline the removal of aliens who were already removed but have since illegally reentered. The Congress that enacted IIRIRA did not intend to grandfather the provision and exempt those aliens who are already in the country illegally. Rather, the focus on streamlining the rules for getting illegal reentrants out of the country is fully applicable, and, indeed, is especially applicable to illegal reentrants who were already in the country at the time of IIRIRA's enactment. Three considerations, I think, point to the conclusion that section 1231(a)(5) is addressed to removing illegal reentrants from the country, including aliens who are already in the country, and that the provision is not so much addressed to the antecedent act of illegal reentry, as such. The first consideration I would point to is the operation of the provision. And it's useful to bear in mind the following possible scenario in which a person, who's been removed, illegally reenters the country, but then returns to his home country. Now, in that situation the individual would have engaged in the act of illegal reentry, but section 1231(a)(5) simply would have no relevance to him whatsoever, because what section 1231(a)(5) seeks to do is to remove someone who's found in the country on the basis of their previous removal order. Now, if they have engaged in the act of illegal reentry, but then have gone back, section 1231(a)(5) simply is not relevant. And I think that goes to show that what the statute is focused on is not the act of illegal reentry, as such, but, rather, removing someone who's found in the country and who's determined to be an illegal reentrant. Now, that operation stands in significant contrast to the criminal prohibition against illegal reentry, which is at 8 U.S.C. 1326, and the prohibition against illegal entry, which is 8 U.S.C. 1325. With respect to both of those provisions, the act of illegal reentry, or the act of illegal entry, necessarily triggers the operation of the criminal prohibition, and there's nothing that the alien can do after the fact to take himself outside of the -- of the purview of that criminal --
04-1376 +++$+++ 18202 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And those --
04-1376 +++$+++ 18203 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Should --
04-1376 +++$+++ 18204 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry?
04-1376 +++$+++ 18205 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And those provisions are specifically recited to apply only to reentrants after the effective date.
04-1376 +++$+++ 18206 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. Congress specifically indicated, in the text of IIRIRA, that it's -- it understood the distinction between the way in which those provisions operate and the way that 1231(a)(5) operates. The IIRIRA expanded the scope of the criminal prohibition on an illegal reentry, and it also, for the first time, imposed civil monetary penalties on the act of illegal entry. There were civil fines, and then -- I think, $50 to $250 per episode. But what's critical is that with respect to both of those changes, Congress specified, in the terms of IIRIRA, that they would only apply, on a prospective basis, to acts of illegal entry or reentry that post-dated IIRIRA. Now, Congress made no such specification with respect to 1231(a)(5), and I think that's significant, because what that indicates is that Congress understood that that provision, unlike the two criminal -- unlike the two criminal provisions, focuses not on the act of illegal reentry, as such, but rather --
04-1376 +++$+++ 18207 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, let me go back to the criminal provision for a second. I take it your answer to the question I asked your brother a moment ago is that if the individual reenters, and, hence, has committed a criminal offense, and later voluntarily returns to -- in this case, to Mexico, that the criminal violation, in effect, would not, in any sense, be canceled out.
04-1376 +++$+++ 18208 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
04-1376 +++$+++ 18209 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And that if he returned, he could be prosecuted for the prior reentry. And I suppose, in theory -- I don't know what the extradition treaty is -- in theory, he might be subject to extradition for it.
04-1376 +++$+++ 18210 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
04-1376 +++$+++ 18211 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The odd way to --
04-1376 +++$+++ 18212 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Justice --
04-1376 +++$+++ 18213 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-1376 +++$+++ 18214 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Souter.
04-1376 +++$+++ 18215 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-1376 +++$+++ 18216 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The criminal act is completed at the moment that the criminal reentry is completed, and nothing that he does afterwards can take --
04-1376 +++$+++ 18217 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There's no forgiveness --
04-1376 +++$+++ 18218 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
04-1376 +++$+++ 18219 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- provision.
04-1376 +++$+++ 18220 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. Which is different, obviously, from the operation of section 1231(a)(5). Now, another consideration that I think indicates that section 1231(a)(5) is focused on the timing of the removal, as opposed to the timing of reentry, is to take into account section 1231(a)(5) in the context of Section 1231 as a whole. Section 1231 was a new provision that was enacted by IIRIRA, and Congress entitled it, quote, "Detention and Removal of Aliens Ordered Removed," close quote. And, as its title indicates, the provisions in section 1231, like 1231(a)(5), all pertain to executing an order of removal against an alien who's been ordered removed. For example, those provisions concern the time period within which somebody is to be removed. They address the travel of somebody to the removal destination, the identification of the countries to which they may be removed, the payment of expenses. But all of them address the execution of an order of removal in the same way that section 1231(a)(5) does. Section 1231(a)(5) speaks to the execution of the pre-existing order of removal, the one that the alien had in place when he illegally reentered the country, but it's of a piece with those other provisions, in the sense that it, like them, addresses the timing of removal rather than speaking to the act of illegal reentry, as such. The third consideration, I think, that points to the same conclusion, which is that Congress was focused prospectively on removals that postdated IIRIRA, rather than retrospectively, in some sense, on acts of illegal reentry that predated IIRIRA, is that at the time of illegal reentry, as we explain in -- at length in our brief, an alien would have had no eligibility, as a categorical matter, and at least as a practical matter, for the three types of relief that Petitioner invokes. And those three types of relief are adjustment of status, suspension of deportation, and voluntary departure. Now, with respect to adjustment of status, as the colloquy earlier indicated, at the time that Petitioner illegally reentered the country in 1981, up until 1994, which was just 2 years before IIRIRA, adjustment of status was categorically unavailable to illegal entrants and illegal reentrants. In that light, it's -- one would be hard-pressed to assert that an illegal reentrant would have performed that act in reasonable reliance on the availability of adjustment of status. It was simply --
04-1376 +++$+++ 18221 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You don't want to --
04-1376 +++$+++ 18222 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- unavailable.
04-1376 +++$+++ 18223 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You don't want us to decide it on that ground, do you, so that all future cases you'll have to decide whether he came in before '94 or after '94, right?
04-1376 +++$+++ 18224 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Justice Scalia. I think a virtue of focusing on the fact that this statute is addressed to the removal, rather than the act of illegal reentry, is that it decides, once and for all, what the temporal reach of the statute is. And --
04-1376 +++$+++ 18225 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, but your point, though -- I mean, someone illegally reentering at that time might not have had a reasonable expectation of the availability of discretionary relief. On the other hand, someone in the -- a petitioner's position, after all that had happened, did have a fairly good case under those provisions that were no longer available.
04-1376 +++$+++ 18226 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that might be, Mr. Chief Justice, but his claim is that section 1231(a)(5) should be construed not to apply to anyone who illegally reentered before IIRIRA. And so, I think the proper frame of reference is to look, ex ante, at what someone would be thinking, had they illegally reentered before IIRIRA, because he seeks to treat everyone who illegally reentered before IIRIRA as a uniform category.
04-1376 +++$+++ 18227 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, and someone entering says, "Well, obviously, if I'm detained the day after I enter, I'm not going to have a very good case. On the other hand, if I'm not, and I happen to make a life here, and I'm here for 20 years, and I get married and I have a child, I'm going to have a strong case," and he's going to -- he's willing to take his chances.
04-1376 +++$+++ 18228 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, two responses. First of all, that's not true with respect to adjustment of status, because someone who reentered before IIRIRA, at least if they reentered before 1984, couldn't have imagined that their marriage to a United States citizen would have given them a basis for adjustment, because adjustment simply was categorically unavailable to illegal entrants.
04-1376 +++$+++ 18229 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Did you say '84 or '94? I couldn't --
04-1376 +++$+++ 18230 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 1994, I'm sorry --
04-1376 +++$+++ 18231 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right.
04-1376 +++$+++ 18232 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I didn't -- I -- in '81, when he illegally reentered, through 1994, adjustment of status was categorically unavailable to people who illegally reentered, so he couldn't --
04-1376 +++$+++ 18233 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And --
04-1376 +++$+++ 18234 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- have relied on the availability of that form of relief.
04-1376 +++$+++ 18235 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And the executive couldn't weigh that. You say, categorically, it -- there's no -- -
04-1376 +++$+++ 18236 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It simply wasn't provided --
04-1376 +++$+++ 18237 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- no possibility for discretion.
04-1376 +++$+++ 18238 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It simply wasn't provided for by statute. A precondition of eligibility for adjustment, until 1994, was that the person was not an illegal entrant. So --
04-1376 +++$+++ 18239 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, could the -- could the INS have just stayed its hand for -- in --
04-1376 +++$+++ 18240 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, I suppose they could have stayed their hand, in the sense that they wouldn't have applied the immigration laws to begin with, but I don't think there --
04-1376 +++$+++ 18241 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No.
04-1376 +++$+++ 18242 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- would have been any basis to stay their hand, in the sense of granting --
04-1376 +++$+++ 18243 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can't imagine that.
04-1376 +++$+++ 18244 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- adjustment of status. I'm sorry?
04-1376 +++$+++ 18245 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I say, I cannot imagine that. No.
04-1376 +++$+++ 18246 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I -- but I -- I didn't understand this now. I guess I don't. Forget the '94/'96 periods.
04-1376 +++$+++ 18247 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure.
04-1376 +++$+++ 18248 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Suppose it stayed the same throughout. Would you say, then, that someone who came illegally into the country, and he's caught, and he's married to an American, there's no possibility he can stay, no matter what, no matter how appealing? Is that the answer?
04-1376 +++$+++ 18249 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not with respect to adjustment of status.
04-1376 +++$+++ 18250 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm -- yes, but you're talking technically.
04-1376 +++$+++ 18251 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I'm speaking --
04-1376 +++$+++ 18252 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Maybe there's --
04-1376 +++$+++ 18253 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- technically, but --
04-1376 +++$+++ 18254 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- some other way you could stay. What's the other way?
04-1376 +++$+++ 18255 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is -- there's another form of relief that --
04-1376 +++$+++ 18256 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-1376 +++$+++ 18257 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- conceivably could give them a claim --
04-1376 +++$+++ 18258 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Which was what?
04-1376 +++$+++ 18259 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and that's suspension of deportation --
04-1376 +++$+++ 18260 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. Well --
04-1376 +++$+++ 18261 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- which is the same --
04-1376 +++$+++ 18262 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- then it comes to the --
04-1376 +++$+++ 18263 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-1376 +++$+++ 18264 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- same thing. So, that -- what I'm thinking is that a person who is here, and they marry an American -- all right? -- they marry a citizen. Now, before this Act was passed, there was a way that if they're really good -- let's assume they're the best human beings around, and the Attorney General finds all that out, and everybody knows this is like a saint, and they say, "Okay, you behave well enough. You can stay." Now, after the Act is passed, all those relevant actions have taken place in '86, long before. Now, there's absolutely nothing they can do. All they can do is go home. And now I've learned that when they go home, they will be told, "You cannot come back, no matter what, for 5 years." Now, that's a pretty harsh consequence, to separate yourself from your family or have your family come to a foreign country. So, if I think the first part of this is a wash, you have a great argument, they have a great argument, and I look to the second part, does it attach new consequences to old and unchangeable behavior? I say, yes, it sure does. Now, why doesn't it?
04-1376 +++$+++ 18265 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there's a lot in that question. Let me just try to address it one step at a time. With respect to whether it attaches new legal consequences, I think you were right, Justice Breyer, earlier, in asking about what would happen if he had gone back voluntarily. Now, it's true that if he had been removed, then there would have been the consequence, in the sense that there would be a period of inadmissibility, at least presumptive inadmissibility, a period, which, by the way, is subject to waiver, which he could apply for. But if he had just gone back voluntarily after IIRIRA's enactment, or, indeed, in the 6-month window between IIRIRA's enactment and IIRIRA's effective date, my understanding is that there would have been no presumptive period of inadmissibility.
04-1376 +++$+++ 18266 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Ah. So, then, you're saying the answer I got before was wrong --
04-1376 +++$+++ 18267 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think --
04-1376 +++$+++ 18268 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- that, in fact --
04-1376 +++$+++ 18269 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's correct.
04-1376 +++$+++ 18270 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- I now have my client in, he's come after IIRIRA has been enacted, and he says, "I've heard about this in IIRIRA, and what in heaven's name am I supposed to do?" And the lawyer says, "Get out fast, next train. Go back. And if you get across that border, you're safe. Because at that point, you can apply; and you're a saint, and you've been married, they'll let you right in, because they'll find out." That's what your view of the law is.
04-1376 +++$+++ 18271 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's my understanding of the law.
04-1376 +++$+++ 18272 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It must be the one way or the other.
04-1376 +++$+++ 18273 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the five -- the 5-year period that Petitioners -- Mr. Gossett was referring to, I think, relates to the period after the point in time at which somebody's deported or removed. And so, his initial deportation --
04-1376 +++$+++ 18274 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, in -- and this is not -- I was saying the question --
04-1376 +++$+++ 18275 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He would --
04-1376 +++$+++ 18276 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- would be, is this Act attaching consequences to old things that you couldn't do anything about? And you're saying, "Not entirely. You can. You can leave. In which case, you'll be no worse off, except for the train fare."
04-1376 +++$+++ 18277 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
04-1376 +++$+++ 18278 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-1376 +++$+++ 18279 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's my --
04-1376 +++$+++ 18280 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That --
04-1376 +++$+++ 18281 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- understanding.
04-1376 +++$+++ 18282 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That person has not illegally reentered the United States? He's gone back, but he did illegally reenter the United States. He wouldn't be covered by the same provision that we're talking about?
04-1376 +++$+++ 18283 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, he -- you're right, Mr. Chief Justice, that it's -- that he's illegally reentered. But he wouldn't be covered by this provision, because all this provision seeks to do is to remove him. And then, once he's gone back, this provision simply ceases to have any relevance to him at all, because he's, in some sense, self-removed. And so, he -- any ineligibility wouldn't stem from this provision, it would come from somewhere else. And, as far as I'm aware, he wouldn't -- he wouldn't be subject to the 5-year period of inadmissibility that's imposed by a separate provision and that would attach if he were removed, because, by hypothesis, he wouldn't have removed, he would have gone back on his own accord.
04-1376 +++$+++ 18284 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And even if he was, that was waivable.
04-1376 +++$+++ 18285 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. That's subject to waiver, which is another --
04-1376 +++$+++ 18286 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Just as he doesn't automatically get admitted because he's married, does he?
04-1376 +++$+++ 18287 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. That's --
04-1376 +++$+++ 18288 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's discretionary, as well.
04-1376 +++$+++ 18289 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's discretionary --
04-1376 +++$+++ 18290 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, it's --
04-1376 +++$+++ 18291 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- at the end of the day --
04-1376 +++$+++ 18292 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- one discretion --
04-1376 +++$+++ 18293 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- as well.
04-1376 +++$+++ 18294 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- and another discretion.
04-1376 +++$+++ 18295 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. And we lay this out in some detail in a -- in a footnote in our brief. And that's at -- that's at pages 39 to 40. But that footnote, I should point out, doesn't deal with your hypothetical, Justice Breyer, which is that he goes back of -- on his own accord. And, I think, in that situation what he would do is what people ordinarily do when they're seeking to gain lawful admission to the country, which is to apply for admission on the basis of what would have been whatever relationships he could have asserted at that point. Now, he wasn't married at the time that IIRIRA was enacted, so he wouldn't have used his marriage as a basis for coming in, because he wasn't married as of yet. But I think that cuts more against him, rather than in his favor, because --
04-1376 +++$+++ 18296 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In the instance --
04-1376 +++$+++ 18297 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of course --
04-1376 +++$+++ 18298 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- of a child --
04-1376 +++$+++ 18299 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask this --
04-1376 +++$+++ 18300 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- who had -- he had a relationship to a child in the United States. And couldn't that have counted for suspension of deportation or removal, whatever terms I use now? Did --
04-1376 +++$+++ 18301 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It --
04-1376 +++$+++ 18302 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- for a hardship claim, a parent-child relationship?
04-1376 +++$+++ 18303 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Justice Ginsburg, it would count for purposes of suspension of deportation, which was renamed cancellation of removal. But that form of relief is available to somebody who's inside the United States, and I was meaning to address the situation where he has voluntarily removed himself from the United States and is seeking admission from, presumably, Mexico, in which case, suspension of deportation wouldn't really come into play, because deportation wouldn't be on the table. But, you're right that if he had stayed in the country, suspension of deportation is a form of relief that he would have been eligible for -- eligible for, pre-IIRIRA. But, with respect to suspension of deportation, I think it's important to understand that that form of relief required an -- a period of presence in the United States of 7 years before one could gain eligibility to seek that relief. And so --
04-1376 +++$+++ 18304 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ He was here -- he was here for 20 --
04-1376 +++$+++ 18305 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He --
04-1376 +++$+++ 18306 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- 20 years, though.
04-1376 +++$+++ 18307 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He was. So, he would have clearly met that eligibility criteria -- there is no question about that -- under the pre-existing law. But if you put yourself in the position of somebody who is entering, pre-IIRIRA, and is trying to determine whether suspension of deportation is relief that would be realistically available to them, you'd have to think that they would act on -- in reliance on their ability to stay in the country for 7 years, and to remain undetected, only at which point they would qualify for suspension of deportation. And that not only seems to me, as a factual matter, somewhat farfetched, but it's not clear that the law should attach significance to that sort of reliance --
04-1376 +++$+++ 18308 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is it --
04-1376 +++$+++ 18309 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- interest.
04-1376 +++$+++ 18310 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is it farfetched, in view of the history of now I- -- before INS, weren't there a great many people who got here and -- just as this Petitioner -- who just lived here for years and years, and were never disturbed?
04-1376 +++$+++ 18311 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As an -- as an empirical matter, I think that's right, Justice Ginsburg, but I'm not sure that that necessarily means that that's a legitimate expectation or a reasonable reliance interest of the type that the Court would typically take into account in its retroactivity inquiry, because at the end of the day what it is, is a reliance interest that's predicated on essentially lack of prosecutorial resources, or a favorable exercise of prosecutorial discretion in some sense. And the Court hasn't attached significance to that sort of reliance interest before. It's --
04-1376 +++$+++ 18312 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Or, put more starkly, if I continue to violate the law for 7 years, I can count on this kind of treatment. That's an odd reliance interest.
04-1376 +++$+++ 18313 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, and -- particularly taking into account the reasonable reliance -- the category "reasonable reliance" is designed to take -- is designed to --
04-1376 +++$+++ 18314 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask --
04-1376 +++$+++ 18315 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- account for its fairness --
04-1376 +++$+++ 18316 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- this elementary --
04-1376 +++$+++ 18317 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- interests.
04-1376 +++$+++ 18318 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- an elementary question, just to be sure we all agree on this? You do agree, do you not, that if, in 1997, Congress passed a statute that said you should get an extra $50 penalty for having come in, back in 1981, that would not be permissible?
04-1376 +++$+++ 18319 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. I think the presumption --
04-1376 +++$+++ 18320 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And --
04-1376 +++$+++ 18321 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- against retroactive --
04-1376 +++$+++ 18322 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And there's sort of an irony in the fact that the actual consequence here is a great deal more serious.
04-1376 +++$+++ 18323 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the consequence of removal is more serious --
04-1376 +++$+++ 18324 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-1376 +++$+++ 18325 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- than -- in some sense, than a $50 penalty. That's right. But this is a person --
04-1376 +++$+++ 18326 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which is constitutionally prohibited. But the consequences here are permitted. I understand the analysis. It's like just saying we take away one ground for staying that we didn't have before. But looking at it in kind of a basic sense, that seems -- it's a fairly serious thing --
04-1376 +++$+++ 18327 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, but --
04-1376 +++$+++ 18328 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that happens, and it effects an awful lot of people, doesn't it?
04-1376 +++$+++ 18329 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure. I think it affects anyone who had illegally reentered, at least. But it's important to bear in mind that this is somebody who was already subject to a removal order. So, in some sense, sending them back out of the country puts them in the same position that they would have been in under the old removal order. And so, insofar as it has that effect on them, I think it's different than a $50 penalty that attaches to the primary conduct of illegal reentry, as such.
04-1376 +++$+++ 18330 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you read the Tenth Circuit opinion as indicated it might have had a different result if he had been married before the enactment of the statute?
04-1376 +++$+++ 18331 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is that suggestion, I think, in Judge McConnell's opinion, and that's --
04-1376 +++$+++ 18332 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How does that fit with the court's theory?
04-1376 +++$+++ 18333 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With the -- with the Tenth Circuit's theory or --
04-1376 +++$+++ 18334 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-1376 +++$+++ 18335 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think --
04-1376 +++$+++ 18336 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How does it --
04-1376 +++$+++ 18337 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the idea was -- I think what the Tenth Circuit failed to recognize was that adjustment of status was categorically unavailable to somebody who illegally reentered before IIRIRA, at least before 1994. And what Judge McConnell presumed was that it would have been available. And his point was that even if it would have been available, it's farfetched to think that somebody would have thought not only about coming into the country, but coming into the country and then meeting a United States citizen, and become married to the United States citizen, and using that as sort of a reliance basis for not applying the law retroactively to somebody who had come in beforehand. But I think that was based on a misimpression about the availability of adjustment of status. Now, I'd like to address, briefly, if I could, the argument at step one of the Landgraf inquiry concerning the negative inference the Petitioner seeks to draw from the "before or after" clause -- so-called "before or after" clause. And the two provisions can be compared side by side at pages 2 and 3 of the Government's brief, and that's in the body of the Government's brief. The fundamental flaw with the argument at step one is that the "before or after" clause in the old provision, which is at the bottom of page 2, referred, by terms, to the date of the INA's enactment. Now, what we've reflected is the codified version, which refers specifically to the date of June 27 of 1952. But even the INA itself referred to the date of the enactment of this Act, which can only be seen to refer to the INA itself. So, if this language had been carried forward in section 1231(a)(5), it still would have been a reference to the date of the enactment of the INA. So, it would refer to somebody who was deported before or after 1952. Now, I think, as Justice Alito suggested, the probable reason that Congress decided not to carry forward this language is because the question of whether someone was deported before or after 1952 doesn't have a great deal of practical significance at this point in time. But whatever one might think was the actual reason for Congress's failing to carry forward the language, I don't think that you can draw any negative inference from Congress's failure to carry forward that language, at least certainly not the negative inference that Petitioner wants to draw. In fact, the negative inference that one would draw, if one were going to do so, is that the section 1231(a)(5) applies only to people who were deported initially after 1952. But that sort of negative inference wouldn't be of much assistance to Petitioner, or any other person, for that matter, that illegally reentered before IIRIRA, at least as a practical matter, because everybody, I think, in that category, would have illegally reentered -- or would have been deported after 1952, rather.
04-1376 +++$+++ 18338 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm not sure that gives the other side the -- you know, the benefit of their argument. I think what they're arguing is not just that it was deleted, but that it was not replaced by -- whether "before or after," and then filling in the date of IIRIRA, rather than the date of the INA. I have -- nobody thinks that they would leave in June 27, 1952, but why wouldn't they have substituted, for that, the date of this new legislation, the date of IIRIRA? I think that's the point he's making.
04-1376 +++$+++ 18339 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1376 +++$+++ 18340 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And isn't there something to that?
04-1376 +++$+++ 18341 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- it's -- there's certainly not enough there to make the argument that he's making, I don't think, because what was -- what Congress did was to replace that provision with utter silence. And from that utter silence, I don't think there's any way to read into it that Congress meant for the applicability of section 1231(a)(5) --
04-1376 +++$+++ 18342 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Just getting rid of old language that was no longer --
04-1376 +++$+++ 18343 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
04-1376 +++$+++ 18344 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- or intentionally not adding new language.
04-1376 +++$+++ 18345 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. I don't think there's any way to read into it the inference that Congress meant to hinge the applicability of section 1231(a)(5) on IIRIRA's enactment date. There never was a proposal on the table to hinge section 1231(a)(5)'s applicability on IIRIRA's enactment date. The only possibility was to keep the old provision in the statute books unaffected, and the decision not do that doesn't have the negative inference that Petitioner suggests. If the Court has no more questions --
04-1376 +++$+++ 18346 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Counsel. Mr. Gossett, you have 2 minutes remaining.
04-1376 +++$+++ 18348 +++$+++ FALSE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. Only a few points I want to make. The first is that illegal reentrants' reasonable expectation that they might grow into relief, as Mr. -- the Chief Justice said, not only is reasonable, but has a statutory basis. Suspension of deportation and cancellation of removal, by their very terms, are only available to aliens who were illegally present in the United States for the relevant time period, and, therefore, these forms of relief specifically exist to -- for such aliens. That people have a reasonable reliance interest in unlawful acts over time is also demonstrated by such doctrines as the doctrine of adverse possession, statutes of limitations/laches, et cetera. Second, Justice Breyer, your -- it is the case that were he to have been -- have left after the enactment of this Act, he would be kept out for -- inadmissible for 5 years. That's 8 U.S.C. 1182(a)(6)(B). Because he had reentered the country within 5 years of his 1981 deportation, he -- under the Government's interpretation of that statute, he would be inadmissible for 5 years from -- even if he were to re-leave in 1996, he would have been ineligible to reenter for 5 years.
04-1376 +++$+++ 18349 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, a person who just leaves voluntarily, having reentered illegally, cannot come back for 5 years, no matter what, under 1156(a)(6)(B).
04-1376 +++$+++ 18350 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The former -- that was repealed --
04-1376 +++$+++ 18351 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That was repealed.
04-1376 +++$+++ 18352 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in 1996. But, yes --
04-1376 +++$+++ 18353 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-1376 +++$+++ 18354 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that would have -- as part of IIRIRA -- but if he had waited til IIRIRA took effect, then it would have been -- he would have been subject to this --
04-1376 +++$+++ 18355 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right.
04-1376 +++$+++ 18356 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- provision. The --
04-1376 +++$+++ 18357 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Gossett. Thank you.
04-1376 +++$+++ 18358 +++$+++ TRUE +++$+++ MR. GOSSETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor.
04-1376 +++$+++ 18359 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The case is submitted.
04-1414 +++$+++ 18364 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first today in No. 04-1414, United States v. Grubbs. General Dreeben.
04-1414 +++$+++ 18366 +++$+++ FALSE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The postal inspectors in this case applied for a warrant to search respondent's property. The warrant that they obtained particularly described the place to be searched and the things to be seized. It was issued based on an affidavit that informed the magistrate judge that a videotape containing child pornography that respondent had ordered through the mail and had paid for in cash was going to be delivered to respondent's house and that the warrant would not be executed until the delivery had taken place. The Ninth Circuit held that the execution of this warrant, which occurred after the delivery that the postal inspectors represented would occur had in fact happened, violated the Particularity Clause of the Fourth Amendment. The Ninth Circuit's opinion is wrong because the Particularity Clause of the Fourth Amendment addresses two specific topics: the place to be searched and the persons or things to be seized. It does not address the time of execution of a warrant, which the Ninth Circuit impermissibly read into the Fourth Amendment in violation of its text. The Ninth Circuit held, therefore, that because the warrant was not in accordance with the Particularity Clause, this search was equivalent to a warrantless search and that all fruits of the search had to be suppressed.
04-1414 +++$+++ 18367 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think, Mr. Dreeben, at the end of the day, I agree with you on the particularity argument, but do you take the -- does the Government take the position that the -- that the -- that a valid warrant need not contain an indication of the time within which it may be served, executed?
04-1414 +++$+++ 18368 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Justice Souter. In the Government's view, the Warrant Clause specifically addresses those things that need to be on the face of the warrant.
04-1414 +++$+++ 18369 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ As far as --
04-1414 +++$+++ 18370 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What would prevent the issuance of just a blanket warrant? We have a warrant for this -- for this premises to be searched.
04-1414 +++$+++ 18371 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What would prevent the valid execution of a warrant that had no time limits whatsoever would be the requirement that a warrant must be supported by probable cause. And if agents executed a warrant at a time at which there was no probable cause, for example, because they executed it before the delivery had taken place or they executed it after a time at which probable cause had become stale, the search would be unreasonable and the fruits of the search would probably have to be suppressed.
04-1414 +++$+++ 18372 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I suppose that a warrant like a -- like a contract has a -- a reasonable life. Don't you think a warrant expires if it does not have a concluding date? You think it goes on forever and ever and ever? Don't you think a warrant just lasts a reasonable time?
04-1414 +++$+++ 18373 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it absolutely just lasts a reasonable time, Justice Scalia, and the reason why there is very little law and very little litigation on this is that since the 1917 statute that Congress originally wrote to provide for the issuance of Federal search warrants, it's provided for a 10-day execution period, and that 10-day limit has been contained and continued in the Federal Rules of Criminal Procedure. So in the ordinary --
04-1414 +++$+++ 18374 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Dreeben, I understood you to say a short while ago that if it were executed before the triggering event, it would be invalid because there was no probable cause.
04-1414 +++$+++ 18375 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I don't want to say that there's no probable cause for the warrant.
04-1414 +++$+++ 18376 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, you don't because then the warrant shouldn't have issued.
04-1414 +++$+++ 18377 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. There -- there is probable cause that the magistrate has to believe that the videotape, which was one of the items to be seized, would be found at the premises at the time that the search was to be executed, which was represented in the affidavit to be after the delivery takes place. If, in fact, the warrant is executed at a time before the delivery takes place, then the warrant has failed to conform to the probable cause that supported it and the search would be unreasonable.
04-1414 +++$+++ 18378 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Even -- even if the warrant did not specifically say that it was an anticipatory warrant and that -- and that you can only execute it after the delivery?
04-1414 +++$+++ 18379 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Justice Scalia, because there is an independent requirement that probable cause must exist at the time of the execution of the warrant. Officers are --
04-1414 +++$+++ 18380 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I thought that's supposed to be a -- a magistrate's determination.
04-1414 +++$+++ 18381 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are two separate things that are going on. One is what the magistrate must do at the time that he issues the warrant. The magistrate must find that there is probable cause to believe that offense -- an offense has been committed, is being committed, or is about to be committed, and that the items that the warrant is going to request to be seized will be present at the location at the time of execution. And the magistrate in this case was easily able to make those determinations based on the warrant affidavit that was submitted to him. But there is an additional requirement of reasonableness, that officers may not execute a warrant, even if it was validly issued, if they become aware of facts that would tell a reasonable officer --
04-1414 +++$+++ 18382 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If they become aware, but the -- it's a big leap from that to say that they must make their own determination of probable cause.
04-1414 +++$+++ 18383 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I think, Justice Kennedy, the easiest example to -- to see why this --
04-1414 +++$+++ 18384 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You -- you indicated a warrant can't be served unless they determine there's probable cause, but that's for the magistrate to do, as Justice Scalia --
04-1414 +++$+++ 18385 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- what I -- I'm making a separate point here, which is that officers have a continuing obligation to act reasonably in the execution of a warrant, and of course, they fulfill that in a variety of ways. They have to be reasonable in identifying the property that's -- that's specified in the warrant and that they go to search. They have to be reasonable in conducting the search of places within that property to see that they're looking for the things that are specified in the warrant and not going on a fishing expedition for things that are not. They have to be reasonable in deciding whether they decide to dispense with knock and announce, and they also have to be reasonable in deciding that the basis for probable cause that they used to support the issuance of the warrant has not become so stale that a reasonable officer would know that that warrant should not be executed.
04-1414 +++$+++ 18386 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, does that mean that the executing officer must be the same officer who got the warrant?
04-1414 +++$+++ 18387 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it certainly doesn't, Justice Stevens.
04-1414 +++$+++ 18388 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't know why he's going to give a warrant to his -- some just call in a police officer and say I want you to execute this warrant. He doesn't know anything about the probable cause. He just says he's mandated to carry out the warrant.
04-1414 +++$+++ 18389 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I think in the ordinary instance, it would be reasonable for the team of executing officers to be responsible for the inquiry that I'm talking about and any individual officer --
04-1414 +++$+++ 18390 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, there's no -- there's no authority for that. I -- I thought warrants were issued to police officers all the time without knowing the -- the precise reason. It's to search the house to try to find X, and the warrant speaks for itself. A judge has made that determination.
04-1414 +++$+++ 18391 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the warrant is obtained based on an affidavit by --
04-1414 +++$+++ 18392 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, if you want us to write the opinion with this qualification in it, it seems to me that you're making a big change in the way search warrants are used.
04-1414 +++$+++ 18393 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, I don't think it's a big change at all, Justice Kennedy, and I -- I think what I'm trying to make clear here is that there's an ongoing obligation of reasonableness. Certainly the Court does not have to get into that in this case to decide it --
04-1414 +++$+++ 18394 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- but, Mr. Dreeben, there's an ongoing obligation of reasonableness in the manner of which the -- in -- in the manner in which the search is carried out. But unless every officer who -- who acts under the authority of the warrant is aware of the probable cause evidence and can make a judgment when that evidence either is stale or, in this case, has not yet ripened, then in fact there is no way for an officer to make that kind of what you're calling the reasonableness judgment in the execution of the warrant. He simply doesn't have the factual background for it, and that's where the timing -- we'll call it -- the timing clause comes in because at least an officer who may not know the probable cause behind it all -- at least an officer who has a warrant that says, you may search between times X and Y, or a warrant that says, upon the occurrence of event X and time Y, has a -- a rough and sound idea of when he can act. But if that's not in the warrant, the officer cannot make that judgment. He doesn't know the probable cause necessarily and he doesn't know the time.
04-1414 +++$+++ 18395 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The affidavit -- wasn't the affidavit available to the executing officer?
04-1414 +++$+++ 18396 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in this case, Justice Ginsburg, the -- the affidavit was on the scene. The affiant who secured the warrant was the lead agent who was in charge of the search that was carried out. The search team had been briefed on the probable cause and the -- the contents of the affidavit and the -- the items that were to be searched for and when the search was to take place. All of those things were true. The district court also found that the affidavit, which does contain the triggering condition in two different places, was incorporated into the warrant. The search warrant itself refers to the attached affidavit. So the documents --
04-1414 +++$+++ 18397 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It -- it was -- I take it it was, in fact, not attached but it was somewhere on the premises.
04-1414 +++$+++ 18398 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was not -- it was not physically attached. It was in the possession --
04-1414 +++$+++ 18399 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So an officer who picked up the warrant would not be able to tell necessarily. If he said, hey, has somebody got the affidavit, they could have brought it forward and he could have found out. But if -- if somebody didn't know where the affidavit was, he wouldn't have any way of knowing.
04-1414 +++$+++ 18400 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in the abstract, I suppose that that's right, but in -- in the concrete circumstances of this case -- and I think it's consistent with what I was trying to explain is reasonable search warrant execution -- all of the search team was fully familiar with the process that was going on. This -- this was a controlled delivery in which postal inspectors were arranging themselves to make a delivery to the premises of the videotape in question. Everyone on the search warrant team knew that until that item had been received and taken inside the house, there would be no warrant execution. And in fact --
04-1414 +++$+++ 18401 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but the facts of the triggering event are not always going to be so clean, and in many cases they're going to require an exercise of judgment by the officer. I mean, if the triggering event is a, you know, delivery of a bale of marijuana or something and they see a big box coming in, they're going to have say, well, is that what they're talking about or is -- you know, is that it. And the point is under the Fourth Amendment that those types of judgments are supposed to be made by the magistrate and not by the officers on the scene.
04-1414 +++$+++ 18402 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think that is the point of the Fourth Amendment. I think what the point of the Fourth Amendment is is that the magistrate judge makes a determination whether the facts that are submitted to him rise to the level of probable cause. And then the magistrate writes a warrant that's consistent with what the Fourth Amendment says in terms the Warrant Clause requires. Then the police officers have to be reasonable in executing it. That was really my only point at the outset of the colloquy that I had with Justice Kennedy and with Justice Souter. And the classic example that I think shows that certainly officers may use discretion in what they do in determining whether it's certain types of triggering conditions are met are wiretaps because wiretaps are issued on the basis that there is probable cause to believe that criminal conversations will occur in the future. The officers then have the responsibility to conduct appropriate electronic surveillance that acquires the criminal conversations but not other conversations that are not within the scope of the probable cause that they've obtained.
04-1414 +++$+++ 18403 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but doesn't that simply -- isn't the analogy there that when a -- when a search warrant says you may -- you may pick up implements of drug traffic, all it covers is drug traffic. It doesn't cover coffee, tea, and -- and milk. In -- in the case of the electronic surveillance, they're supposed to record criminal conversations and -- but not others.
04-1414 +++$+++ 18404 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the point, Justice Souter, is that they have to make a judgment that criminal conversations are what is going to be intercepted.
04-1414 +++$+++ 18405 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But those -- those are judgments about facts that they are finding. They are not judgments about probable cause or the moment at which the warrant becomes valid.
04-1414 +++$+++ 18406 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they're -- they're not judgments here about probable cause either because the magistrate has --
04-1414 +++$+++ 18407 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it is. The -- the moment -- the triggering event is the event that determines that the probable cause determination is, in fact, true now.
04-1414 +++$+++ 18408 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's a separate question, and I think the magistrate's question is, is there probable cause? He doesn't have to determine that the probable cause is true.
04-1414 +++$+++ 18409 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And his judgment, though, is there will be probable cause when the triggering event occurs.
04-1414 +++$+++ 18410 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
04-1414 +++$+++ 18411 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And so the triggering --
04-1414 +++$+++ 18412 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I actually, Justice Souter --
04-1414 +++$+++ 18413 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the triggering event has a probable cause implication, which the selection of objects to be seized does not have.
04-1414 +++$+++ 18414 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I have to say that I disagree fundamentally with the suggestion that he's saying there will be probable cause when the triggering event occurs. He's saying, based on the facts that are submitted to me now, the probabilities are such that evidence of this crime will be on the property when the warrant is executed.
04-1414 +++$+++ 18415 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, he's saying two things. There is probable cause to believe that what we're calling the triggering event will occur, and there is probable -- and when that triggering event occurs, there will be probable cause to believe that evidence of a crime may be found and seized at such and such a place. There are two determinations.
04-1414 +++$+++ 18416 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I don't think that there's any reason linguistically to prefer your formulation, Justice Souter, to the formulation that says there's probable cause to believe now that when the warrant is executed, in accordance with the triggering condition's occurrence, the property will be found.
04-1414 +++$+++ 18417 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course, that's not what the -- what the warrant says. The warrant says I'm satisfied that the person or the property so described is now concealed on the premises.
04-1414 +++$+++ 18418 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Kennedy, I think the warrant should be read as a whole and not, as this Court has indicated in many cases, a technical sense. This search warrant, which is at page 47a of the petition appendix, specifically refers to the attached affidavit. And the district court found as a fact that the warrant was intended to incorporate the affidavit. The affidavit states quite explicitly in two different places that it would not be executed until the triggering event occurred, and it also makes clear that the triggering event was the delivery of the videotape that respondent --
04-1414 +++$+++ 18419 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The affidavit itself says there is now concealed a certain person or property. He checked the wrong the box --
04-1414 +++$+++ 18420 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think the -- that is correct, too, because this --
04-1414 +++$+++ 18421 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If you read the whole affidavit, you know it doesn't mean what it says there.
04-1414 +++$+++ 18422 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that not only do you know that the -- this was clearly intended to be an anticipatory warrant as to the videotape, but it also authorized the search for other items that were related to --
04-1414 +++$+++ 18423 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask you this question? With a warrant to conduct a wiretap, does the warrant just merely specify the telephone number and the time at which the -- the officer may listen, or does it have anything to do with what -- what -- the content of the -- of the conversation?
04-1414 +++$+++ 18424 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Wiretaps, Justice Stevens, are regulated extensively by Federal statute, and under Federal statute, a wiretap order contains a myriad of details that are not specified by the Fourth Amendment. Among those details are the crimes that are being investigated and the time period of --
04-1414 +++$+++ 18425 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but I mean in describing the authority of the investigating officer to execute the warrant, does it describe it just in terms of a physical number that can be listened, or one or more numbers, plus a time period, or does -- does it say you may listen only when he's talking about foreign affairs or --
04-1414 +++$+++ 18426 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It specifies the crimes that are being investigated and it contains a minimization requirement which --
04-1414 +++$+++ 18427 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's a minimization as to what they will transcribe, isn't it?
04-1414 +++$+++ 18428 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's a minimization as to what conversations they will intercept if they listen to a conversation and determine that it falls outside the scope of what they're authorized to intercept. Many of the calls that -- that are intercepted in these kinds of wiretaps require a considerable amount of judgment and discretion. Are the individuals talking in code? Are they talking about crimes in an oblique way that pertain to the subject of the warrant, or are they really having innocent conversations? And the officers can listen in long enough to make that determination. If they determine that it's a clean call, they have to minimize and terminate their interceptions.
04-1414 +++$+++ 18429 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Dreeben, could -- could I ask you if the Government would -- would defend a -- an anticipatory warrant in these circumstances? The postal inspectors know that the unlawful video has been put in the mail and they know that it -- it is going to one of 17 individuals. They're not sure which one of the 17. So they go and get a warrant that says, you know -- and -- and it will be obvious in my hypothesis that the delivery of the video has occurred. So can they get a warrant that says you can go in -- it lists all of these 17 people. And it says you can go into their premises as soon as you see delivery of the video. Would -- would you support that kind of an anticipatory warrant?
04-1414 +++$+++ 18430 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, I -- I would certainly with respect to search of common areas. For example, this was a delivery to some sort of a --
04-1414 +++$+++ 18431 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, then -- then -- well, I'm sorry to hear you say that because then you are really not saying that there has to be probable cause.
04-1414 +++$+++ 18432 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I'm saying that there would be --
04-1414 +++$+++ 18433 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because at the outset there's no probable cause to believe that any one of those 17 -- unless you think one-seventeenth is enough for probable cause.
04-1414 +++$+++ 18434 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think one-seventeenth is pushing it for probable cause --
04-1414 +++$+++ 18435 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1414 +++$+++ 18436 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- which is why my answer was as to the common area. Certainly they can get a warrant that says we know that there's an item that represents evidence of a crime and that it's going to be at a particular location upon delivery and we can go in and search that location.
04-1414 +++$+++ 18437 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but I'm not talking about a particular location. I'm talking about we know it's going to be one of 17 -- or make it 50, if you like. We don't know which of those.
04-1414 +++$+++ 18438 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1414 +++$+++ 18439 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We want a warrant that will let us go in immediately when we see it delivered. Would you support that warrant?
04-1414 +++$+++ 18440 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With -- if what you're talking about is invading the individual expectations of privacy of -- of 50 --
04-1414 +++$+++ 18441 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. It's in somebody's home. It's into a home.
04-1414 +++$+++ 18442 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I -- I wouldn't because I don't think that -- that one-fiftieth in those circumstances would -- would be probable cause without more. I -- I do think --
04-1414 +++$+++ 18443 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but there's no -- there's no probable cause until the triggering event. When -- when the triggering event takes place, you've eliminated the 16 others and you do know that it's -- it's -- there's probable cause. How is that different from this case?
04-1414 +++$+++ 18444 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This case is different because there -- you -- you can subtract out all of the variables except will the postal officials, in fact, deliver it to the place where they're saying they will deliver it and they say that they're delivering it to a household that has actually placed the order.
04-1414 +++$+++ 18445 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's not true. Maybe the -- maybe the person decides he won't accept it.
04-1414 +++$+++ 18446 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Then the -- then the warrant should not be executed because this affidavit said that --
04-1414 +++$+++ 18447 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So there are a lot more things than just the delivery. It's not entirely controlled by you.
04-1414 +++$+++ 18448 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that that -- it's fair to say that it's not 100 percent controlled by the Postal Service, but I wouldn't say that there are a lot of things that are left up in the air or that there's any more that's left up in the air than in the kind of experience that goes on in installing a wiretap. Justice --
04-1414 +++$+++ 18449 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what -- what -- take this variable. The -- the warrant can be executed when the item is taken into the house, if I remember what it said. Suppose the defendant is sitting on a porch, sees the postal carrier, gets up, takes the package, and proceeds to walk down the street, and never enters the house. Could the warrant be executed?
04-1414 +++$+++ 18450 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not under this warrant because it was secured by an affidavit that represented that it -- the warrant will not be executed unless and until the item is taken inside the house. And so the agents assumed the risk, so to speak, that the event that you described, Justice Ginsburg, would occur, and under those circumstances, the search wouldn't take place. Presumably under those circumstances an arrest would take place. A search would take place incident to the arrest of the individual. The videotape would be found, and the Government would have acquired the evidence that it's looking for, which is evidence with jury appeal that this individual has, in fact, received child pornography through the mail. And it's important to recognize that in this case there was ample probable cause that respondent had attempted to receive child pornography through the mail before the triggering event even took place, and had the agents wished to, they could have procured a warrant, a conventional warrant, so to speak, at that time that allowed the --
04-1414 +++$+++ 18451 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but you don't want us to decide the case on that ground. I mean --
04-1414 +++$+++ 18452 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think this was such a warrant, Justice Scalia. I'm -- I'm just pointing out that there was a chain of events that supported probable cause to a very strong degree and the triggering event represented that until the actual delivery had taken place and the item was brought in the house, the search wouldn't take place.
04-1414 +++$+++ 18453 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Could you elaborate just a little bit for me on why you think this case is different from Justice Scalia's hypothetical with the 17 people? Because my concern is there -- here you say once the triggering event takes place, then you do -- the probable cause comes to fruition or whatever. How is that different than his hypothetical?
04-1414 +++$+++ 18454 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's -- it's fundamentally different. This case is fundamentally different from that hypothetical because the measure of probable cause at the time the warrant is issued is very weak under Justice Scalia's hypothetical. One out of 17 is pushing the envelope. One out of 50, at least absent some extraordinary national emergency, is probably well outside the envelope for saying we have probable cause to go into any particular place. Justice Scalia's hypothetical illustrates that the emergence of later facts can make it very clear that the agents can go in and get probable cause at that moment, but this case is fundamentally different because the agents have probable cause based on probabilities.
04-1414 +++$+++ 18455 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It is probable that this package will be delivered to this individual. That probability exists at the time that the warrant is -- is issued.
04-1414 +++$+++ 18456 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
04-1414 +++$+++ 18457 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And that's the probable cause you're relying on.
04-1414 +++$+++ 18458 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
04-1414 +++$+++ 18459 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It is probable that this package will be delivered to this individual.
04-1414 +++$+++ 18460 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. And those fact --
04-1414 +++$+++ 18461 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that probability does not support the truth of the statement that the person or property so described is now concealed at the place for the issuance of the warrant.
04-1414 +++$+++ 18462 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I think this takes me back to the fact that this warrant, number one, should be construed as a whole and not -- not by virtue of which box was checked and, number two, that there were many items that were specified in the warrant that -- and the warrant application that the agent had reason to believe were then concealed at the time. So this was really a case where the form warrant was inadequate to the -- to describe fully and accurately what was going on.
04-1414 +++$+++ 18463 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course, if the -- if the stuff was already there that supports the warrant and the search, we don't even reach the question of a -- of the anticipatory warrant.
04-1414 +++$+++ 18464 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think you do in --
04-1414 +++$+++ 18465 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I should say I -- I've approached the case on the assumption that the only thing we're worried about is whether -- whether the anticipatory part is okay.
04-1414 +++$+++ 18466 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that is --
04-1414 +++$+++ 18467 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it doesn't seem to me to be a fair response to say, well, we had other grounds for --
04-1414 +++$+++ 18468 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. It's a -- it's a fair response into -- on how the warrant was drawn and why the statements that were made are not laughably wrong. They -- they are partially inaccurate because the videotape was clearly not on the premises at the time. They are partially right in that other evidence of child pornography distribution was. But this case -- and, Justice Stevens, I quite agree with you. This case only concerns the triggering condition because that --
04-1414 +++$+++ 18469 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- but you would defend the warrant even if the only thing they were looking for was the stuff delivered at the -- at the time.
04-1414 +++$+++ 18470 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and that's the only thing that's before the Court.
04-1414 +++$+++ 18471 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And as to that aspect of it, the warrant is incorrect.
04-1414 +++$+++ 18472 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1414 +++$+++ 18473 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The warrant itself.
04-1414 +++$+++ 18474 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the box on the warrant is. Again, I think that you need to --
04-1414 +++$+++ 18475 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it's not really a box. I am satisfied, et cetera, the property so described is now concealed on the premises.
04-1414 +++$+++ 18476 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The same response that I gave to Justice Kennedy. The magistrate found that the warrant, the form of -- that constitutes the warrant, incorporated the attached affidavit, and the attached affidavit makes clear exactly what the agent had in mind. There is an alternative point here that I want to make before I reserve the remainder of my time for rebuttal, and that is the Ninth Circuit's position, even if the Ninth Circuit were correct that the triggering condition needs to be in the warrant, should still not lead to the suppression of evidence because although the Government's submission is that the triggering condition is not required by the Particularity Clause, if some other doctrine under the Fourth Amendment did require it to be in the warrant, the warrant should be treated as one that is at most overbroad as to the time of permissible execution. That is, on its face it would authorize the warrant to be executed from the moment of issuance until 10 days after issuance instead of from the moment that the triggering condition is satisfied until 10 days after issuance. When courts have confronted overbroad warrants, what they have done is ask is there probable cause that supports part of this warrant. If the answer to that is yes, the next question is, is the evidence that's sought to be suppressed acquired under the part of the warrant that was validly supported by probable cause? If the answer to that is yes, there's no suppression. The warrant is, in effect, severed and the only suppression that can be obtained is as to evidence that was secured by execution of the part of the warrant that's not supported by probable cause. Here, there was ample probable cause to support the magistrate judge's conclusion that after the triggering condition was satisfied, the videotape would be on the premises. The warrant was not executed until after the delivery of the videotape took place, and therefore, there was no deficiency in the correlation between probable cause showings that were made to obtain the warrant and the time at which it was executed. And the result is that there should be no suppression of evidence. If I may save the rest of my time for rebuttal.
04-1414 +++$+++ 18477 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Dreeben. Mr. Reichel.
04-1414 +++$+++ 18479 +++$+++ FALSE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may -- may it please the Court: I'd like to begin with noting that, Mr. Chief Justice, you highlighted a specific concern with anticipatory warrants and a specific concern specific to this type of case. A discussion was -- was had about triggering events are commonly not so clean. It requires a lot of judgment to be made by the officer in the field. There are not only examples in the case law, but I speak from my own experience as a public defender of many years that there are many examples that occur often in the courtroom. Specifically a triggering condition may allow for the search of a home after a suspect sells narcotics to an officer, but what will happen is the suspect will take the money from the officer and then have to go to another residence to get the narcotics, not the residence that the magistrate and the officer believe he would get them from. As a result, he has to make a determination at that point whether the triggering condition has been satisfied.
04-1414 +++$+++ 18480 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Reichel, it -- it seems to me it's part of your case that the probable cause must be in existence at the moment the warrant is issued and that the magistrate cannot take into account the passage of time. Are you -- Suppose that -- that policemen apply for a -- a warrant in Manhattan which is to be served in Brooklyn, and it's going to -- it's going to take half an hour to get there. Everybody knows it's going to take half an hour. And the probable cause that they come up with is they know that this mob leader is going to be in this apartment between 6:30 and 6:45. Okay? And they present the warrant to the magistrate at -- at 6 o'clock. It will take half an hour to get to Brooklyn. The magistrate knows that when it's served, the mob leader will be in this apartment. Can that -- can that warrant issue?
04-1414 +++$+++ 18481 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, because the magistrate has determined that there's probable cause to believe that at the time of the search, the contraband, the purpose of the search, will be present in that particularly described location.
04-1414 +++$+++ 18482 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right, and -- and likewise, it -- it would work the other way. If the magistrate had the same facts, the -- the mob leader is going to be there between 6:30 and 6:45, and the warrant is presented to him at 6:30, he would have to decline it because he knows by the time it's served, it's -- it's going to be gone. Right?
04-1414 +++$+++ 18483 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct.
04-1414 +++$+++ 18484 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So the magistrate is always looking to the condition when -- when the warrant is executed, and that's all that's happening here. There is probable cause to believe that this person will be receiving contraband. There is probable cause to believe it because he sent for it and it was mailed to him. It's just a matter of waiting till it gets there. There is probable cause to believe that he will receive it. And all you're doing is predicting in the future, saying the probable cause doesn't exist now, but it exists when the warrant will be executed. I don't see -- I don't see any real difference between that and the -- and the mob leader example I just --
04-1414 +++$+++ 18485 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, what the magistrate is predicting is that there will be receipt, but the magistrate is -- is not predicting that there will be contraband inside of that house at that point. He's actually shipping that discretion to the officer in the field.
04-1414 +++$+++ 18486 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but it's probable. At the time that he issues the warrant, it is probable that this person will be receiving contraband because they showed, you know, this guy sent for it. He sent for the -- these child pornography films in -- in a -- you know, a Postal Service rouse, and we mailed it to him. It's probable that he's going to be receiving it.
04-1414 +++$+++ 18487 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is probable that he's going to be receiving it. However, what occurred -- what -- the -- the problem that occurs in such a situation is that is that the warrant issuing process itself, which is part of the machinery of government -- the actual process of issuance is completed with anticipatory warrants by the officer in the field. It's not fair to say that the warrant has been issued and the magistrate provides it to the officer. At that point, it's not a valid warrant. A warrant cannot be issued if it's not valid by definition. So what you have --
04-1414 +++$+++ 18488 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Reichel, one of the concerns about the position you're taking, the alternative would be that the police officer, expecting that this package is going to be delivered at a certain time, is on the lookout for it. He sees the post officer approaching, calls on his cell phone to get an emergency warrant, let's say. The magistrate will not be nearly as well informed as he was when he was presented with -- was it a 64-paragraph affidavit? So the magistrate knows that the whole deal -- he can't possibly know it if he's got -- got a telephone call on an urgent basis. So if you want the magistrate's judgment rather than the police officers' on the spot, then it makes much more sense to have the magistrate get a detailed picture of what's going on and decide whether or not he'll issue the warrant.
04-1414 +++$+++ 18489 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct, and I'm -- and, Justice Ginsburg, that's why telephonic warrants are simple and easy, one of the many alternatives to anticipatory warrants, which do not require any --
04-1414 +++$+++ 18490 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I just -- I made the opposite argument, that a telephone warrant has to be done on the basis of minimum information. The officer -- the magistrate will have a detailed affidavit when it isn't on an emergency basis. He -- he will have, as he did in this case, an affidavit with 64 paragraphs explaining the whole deal, how it was set up. So isn't -- isn't there greater security if you could have a magistrate with time to think, well, is there really probable cause than to have the magistrate make that judgment on a -- such a quick basis?
04-1414 +++$+++ 18491 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, there is, Justice Ginsburg. And the procedure -- the most appropriate procedure is the duplicate warrant whereby the magistrate, satisfying all the concerns Your Honor has expressed, has this warrant. As to the final matter, the final determination of probable cause, he receives a call from the officer. There's an agent with the magistrate at the time. He advises what's just occurred. He can advise he took the package but did not go in the house. He took the package and did go in the house. The magistrate has the 64-page affidavit, is all prepared now. He can advise the officer to sign off on it, that it's okay to search now. He signed that --
04-1414 +++$+++ 18492 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So there has to be -- when does he get the -- when does the magistrate get the affidavit?
04-1414 +++$+++ 18493 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well before the delivery of the package in such a circumstance, Your Honor. They bring a duplicate -- a duplicate warrant to the magistrate who -- and they -- and there's an agent who stays with the magistrate. They then control -- are in complete control at this point of the contraband.
04-1414 +++$+++ 18494 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Mr. Reichel, did you take the position in the proceedings below that anticipatory warrants are invalid?
04-1414 +++$+++ 18495 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor.
04-1414 +++$+++ 18496 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ No. And did you raise the issue in your response to the petition for certiorari?
04-1414 +++$+++ 18497 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor.
04-1414 +++$+++ 18498 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ No. But you want us to address it now. I mean, you -- you make a big deal of the notion that there's no such thing as an anticipatory warrant. And yet, it's never been addressed below. It wasn't addressed by the court below.
04-1414 +++$+++ 18499 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if I -- Justice O'Connor, if I can elaborate. It was raised in the district court, and in fact, I believe it's in the joint appendix. Excuse me. It's in the cert petition at page 36a, which I think is appendix D, where the district court finds that they're permissible, and he cites Weber and Hale. And the district judge at that point made a final determination for the litigation in the district court that they were permissible and they were lawful in all circumstances. I did not -- the matter on appeal to the Ninth -- the court of appeals on appeal, the more surer course that we thought for reversal would be the failure of particularity of these types of requirements. But the most important point is I do believe it's fairly included in the question presented before this Court. Several examples, long discussion, lots of confusion about what must -- what procedure must take place with anticipatory warrants I think calls out for the inferior courts to hear from this Court what those requirements are. To answer what those requirements are, this Court must answer whether they're constitutional --
04-1414 +++$+++ 18500 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can I --
04-1414 +++$+++ 18501 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't see --
04-1414 +++$+++ 18502 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- can I take you through my -- a variation of my earlier hypothetical? You say that the magistrate can issue the warrant at 6 o'clock, although he knows that there really won't be the probable cause until 6:30. You say that would be valid. He could issue it in Manhattan knowing that it wouldn't be served in -- in Brooklyn until 6:30. What if the magistrate specified that out of an abundance of caution? It's just the same case, but he writes on the warrant, this warrant is not to be served until 6:30. Does that make it invalid? Whereas, it was valid before, it's not valid if he -- if he says I am anticipating what will be the situation when the warrant is executed. He says it explicitly, it can't be served until 6:30. Does that make it bad?
04-1414 +++$+++ 18503 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Textually he -- textually under the language of the Fourth Amendment, he cannot issue the warrant for service at 6:30 when probable cause --
04-1414 +++$+++ 18504 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Doesn't it strike you as -- as strange that it's perfectly okay if he issues it at 6 o'clock, knowing that it'll be -- won't -- that there isn't probable cause now, but there will be at 6:30 when it will be served. You say that's perfectly okay. But if he says it on a warrant, not to be served until 6:30, it suddenly becomes bad.
04-1414 +++$+++ 18505 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If it -- if it is textually okay, if the warrant is valid under the Fourth Amendment, that it must be clearly stated that the time and the -- and the significant limit on the officer's power to search is the time of 6:30, that must be clearly stated on the warrant to satisfy the Particularity Clause of the Fourth Amendment.
04-1414 +++$+++ 18506 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, I see. So -- so you say so long as you say something as clear as 6:30, that's okay. It cannot be served until 6:30.
04-1414 +++$+++ 18507 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It must be on there. It is a requirement under the Particularity Clause that it must be on there for the officer --
04-1414 +++$+++ 18508 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where -- where is time? I know that the Fourth Amendment says persons and places. Where does it say time is one of the particulars?
04-1414 +++$+++ 18509 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is inherent. It is inherent in that language. It is backed up -- clearly it is backed up by the purposes behind the Particularity Clause. If a warrant -- the probable cause -- the -- the two clauses in the Warrant Clause, the probable cause, is constitutionally I believe joined at the hip. It is textually joined with the objects of the search, the place to be searched, and the -- and the persons to be searched. And as a result --
04-1414 +++$+++ 18510 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think time -- time is certainly relevant to probable cause, but the -- the Fourth Amendment says what you have to identify with particularity are places and the items and the person. Person, things, and place. It doesn't say time, but you say that's inherent. Have we -- are there decisions of this Court that say time goes to the particularity requirement?
04-1414 +++$+++ 18511 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Let me give you another example. There are search warrants for wiretaps, are there not?
04-1414 +++$+++ 18512 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1414 +++$+++ 18513 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ And they are often anticipatory. They aren't issued because the suspect is now using the phone, but because it's anticipated in the future the suspect will use the phone at some point and there's probable cause to believe, if -- if the suspect does, there may be evidence of a crime. I mean, anticipatory warrants are just inherent in the system. I don't -- I just don't think your argument follows from precedent.
04-1414 +++$+++ 18514 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Your Honor. Justice O'Connor, I do know that the -- that wiretap statutes came about only after three important decisions from this Court: Ker v. California, Katz, and Berger. And in -- in those opinions, they dealt -- they dealt very strongly with the Particularity Clause of the Fourth Amendment and wiretap restrictions. Thereafter, there were extensive congressional hearings on wiretaps and the final result was a very carefully drafted statute that allowed for wiretap, subject to -- to very stringent conditions, specifically enumerated -- enumerated crimes and specific circumstances, but additionally, notice to the homeowner --
04-1414 +++$+++ 18515 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Well, the Constitution still applies to it, and they are inherently anticipatory.
04-1414 +++$+++ 18516 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I -- and I believe that wiretap laws -- the wiretap laws require a showing of present probable cause, not probable cause in the future. But there is criminality ongoing at this time.
04-1414 +++$+++ 18517 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Probable cause that there -- this is somebody who's going to use a certain telephone number and that there may be reason to suspect a crime will be discussed.
04-1414 +++$+++ 18518 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe this Court announced in --
04-1414 +++$+++ 18519 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ And -- and this is no different than that.
04-1414 +++$+++ 18520 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe in -- in -- this Court announced, Justice O'Connor, in the Berger opinion that for a wiretap warrant to be authorized under the Fourth Amendment, there must be a crime undertaken, presently being committed, or about to be committed, additional evidence of a crime that's already been committed. There is present probable cause. And it also, I do not believe, vests the discretion in the officers to completely control when probable cause will occur.
04-1414 +++$+++ 18521 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, the conversation is not occurring right now. The magistrate has to say in the future, when this warrant is executed, the conversation probably will be occurring. Right? And so also here. You know, the -- the receipt is not occurring now, but on the basis of all of the evidence before me, I think that that receipt will be occurring.
04-1414 +++$+++ 18522 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, I believe that wiretaps are different for a few reasons. First of all, I do not believe they could have been foreseen by the Framers of the Fourth Amendment. As a result, more pragmatic modern approaches for law enforcement's needs must be taken into consideration. But additionally --
04-1414 +++$+++ 18523 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not sure the Framers used controlled deliveries either. (Laughter.)
04-1414 +++$+++ 18524 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree, Your Honor.
04-1414 +++$+++ 18525 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. I -- I have a question that you could just clarify a confusion. You want to bring into this case the question of whether or not anticipatory warrants are ever valid. I had a case in the First Circuit where I explained my view on that. I thought they would be reasonably described. So I don't know if that issue should be brought up here. Maybe. I can't figure out what issue should be brought up here. There's a Van Treska case that says we ought to read these things in a common sense fashion. All right? I read it. My common sense says I have a warrant here. It says nothing about anticipatory anything. It says you can go and search for any of 16 items, 14 of which are in his house well before the delivery. After all, he's had all this correspondence with these people about child pornography. They have terrific reason for thinking he might have some. And that's all it says. And then it says, is there probable cause for a warrant that says go in any time now and search for any of these items, including what will be delivered, if that's when you do it? I say I look at the probable cause. His probable cause is he thinks that another package is being delivered, and he's right to think it. Now, whether it is delivered or not doesn't add anything really to the issuance of the warrant. It might add to his personal confidence. But that's my common sense opinion. The common sense is the only question here is do they have probable cause to issue a warrant that allows them to search now, because that's what it says. So now how -- how, given that -- I grant you the Ninth Circuit went into all kinds of other things, but you explain to me, please, how I'm supposed to reach those other things and what I'm supposed to do, and why I'm wrong.
04-1414 +++$+++ 18526 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Breyer. The particularity requirement requires specificity on the purposes behind the particularity requirement in the warrant itself and not in some other documents or supporting documents elsewhere.
04-1414 +++$+++ 18527 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, no, it's not supported. It's specific. It says go to Jeffrey Grubbs' residence and then it has an attachment A which describes it with great specificity. And go and search for and seize the records and materials described in attachment B, and then we have 16 different kinds of items with great specificity. That's it. That's the end of this warrant, and that's what it says to do, and that's what he did. And then he has a different affidavit which gives him the probable cause for issuing the warrant I just described.
04-1414 +++$+++ 18528 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice -- Justice Breyer, it says that they may enter into that house, but only upon the occurrence of a significant event, a specific occurrence.
04-1414 +++$+++ 18529 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where does it say that?
04-1414 +++$+++ 18530 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is in the affidavit --
04-1414 +++$+++ 18531 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. I'm reading the warrant. I'm not reading the affidavit. It happens to say that the affidavit is -- that that affidavit is -- it's in appendix A, appendix B, but it doesn't say anything about going in on -- where does it say that?
04-1414 +++$+++ 18532 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it --
04-1414 +++$+++ 18533 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It says -- mine says, you may command to search on or before April 27th for 10 days the person/place named and make the search in the daytime between 6:00 and 10:00. That's what mine says.
04-1414 +++$+++ 18534 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice --
04-1414 +++$+++ 18535 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then there's an affidavit about probable cause. That's true. So --
04-1414 +++$+++ 18536 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, I think that highlights and it supports the court of appeals decision in this case, specifically because if it's not stated on the face of the warrant, such as --
04-1414 +++$+++ 18537 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's not stated?
04-1414 +++$+++ 18538 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The limit on the officers' power to search.
04-1414 +++$+++ 18539 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where is there a limit?
04-1414 +++$+++ 18540 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Their limit is in the triggering event. It is an anticipatory warrant which is written at the top.
04-1414 +++$+++ 18541 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It is?
04-1414 +++$+++ 18542 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1414 +++$+++ 18543 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is it that tells us that? I just happened to read an affidavit where the -- the person says that he won't enter until this package is there, but there are a lot of cause I would think --
04-1414 +++$+++ 18544 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Doesn't the Government concede this point? I had thought the Government conceded that this warrant would not have been validly executed if they went in before the triggering event. Otherwise, there's no purpose in putting in the triggering event. Maybe we'll have to get the Government to -- to state that explicitly, but that -- that's my understanding, that they acknowledge this warrant would not have been validly executed if they went in before the triggering event occurred. If that's not the case, I agree. I don't know why we took the case. (Laughter.)
04-1414 +++$+++ 18545 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct, Justice Scalia. And, Justice Breyer, the limitation for the officer is a significant matter. It is the only thing that gives him the --
04-1414 +++$+++ 18546 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well -- well, he says in his affidavit he's not going to execute it until this package is delivered, but that -- if I read it in a common sense way, say, of course, he isn't going to because he wants to get everything at once. But after all, he's in the place. I would say there's a lot of probable cause for him to looking for 12 of these items which are there whether this package is there or not. Of course, he's not going to execute it till later.
04-1414 +++$+++ 18547 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, of course, if you take that view, why did they bother to put the words, anticipatory search warrant, on the document? That's what we're fighting about. If we decide it on your ground, we never should have taken cert.
04-1414 +++$+++ 18548 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Maybe that's the answer.
04-1414 +++$+++ 18549 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe the particularity requirement also does not assume that the officers seeking the warrant will be the officers serving the warrant.
04-1414 +++$+++ 18550 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What else is there in this joined at the hip particularity requirement? The number of officers? Which officers, FBI agents or DEA or something else? I mean, you're -- you're adding to the text of the amendment, and I just wonder what else is added under your view.
04-1414 +++$+++ 18551 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, I believe they are joined at the hip because the -- the particularity requirement --
04-1414 +++$+++ 18552 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. That's your argument. I'm just saying what else is joined at -- at the hip besides time. You say they don't say time. They say persons to be seized and place to be searched, and you say inherent in that is time. Well, what else is inherent in there?
04-1414 +++$+++ 18553 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If there's a -- Mr. Chief Justice, if there's a significant limit on the time of the execution of the warrant, then that does become part of the Particularity Clause.
04-1414 +++$+++ 18554 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's time. Is there anything else that's not written there that is part of that particularity requirement?
04-1414 +++$+++ 18555 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not that I -- if it is significant -- if it is a significant limit on the officer's power to search and if it serves the other purposes of the particularity requirement, the measurement of the -- providing the homeowner the notice of what is going on.
04-1414 +++$+++ 18556 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, there's all sorts of, as Mr. Dreeben explained, reasonableness. It doesn't say how you enter the house, but if you suddenly go in with a -- with a tank, we might find that unreasonable. But that's not something that has to be spelled out particularly under the terms of the Fourth Amendment.
04-1414 +++$+++ 18557 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, that's correct. The reasonableness prong is separate, and I think this Court has -- has long pronounced that the manner of executing a warrant may offend the Constitution and vitiate the legality of a search.
04-1414 +++$+++ 18558 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So who --
04-1414 +++$+++ 18559 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It doesn't have to be spelled out in the warrant itself.
04-1414 +++$+++ 18560 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The manner of entry -- the method of entry does not have to be spelled out.
04-1414 +++$+++ 18561 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So who, what, and where includes when, but it doesn't include how. Right? Where -- where do you derive this proposition?
04-1414 +++$+++ 18562 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that not for -- for all cases, I cannot answer the question, but for cases of anticipatory search warrants where the officers are going to finalize the issuing process, the officers are completely in control of the manufacture and completely in control of the completion of the delivery of the contraband, and if a magistrate has allowed them to make that decision in the field, that has to be clearly stated to satisfy the particularity requirement on the front page of the warrant so that any officer executing it, not just those who -- who seek the warrant, but the officer executing it, is keenly aware of his limit to search. As well, it puts the homeowner on notice of the other factors of the particularity requirement that this has announced in --
04-1414 +++$+++ 18563 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask --
04-1414 +++$+++ 18564 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the Groh v. Ramirez opinion.
04-1414 +++$+++ 18565 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- may I ask you this question? The warrant now says it is now -- the warrant says the contraband and so forth is now concealed on the person or in the house. And if I understand your position correctly, your first argument is it should have said, will be concealed upon the happening of the anticipatory event. That would have -- and describe the event properly. That would have satisfied the Ninth Circuit's objection.
04-1414 +++$+++ 18566 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that is correct, Justice Stevens.
04-1414 +++$+++ 18567 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, why would that not also have satisfied the objection of the warrant -- the argument you make in this Court? Because it would have made it clear that there is now probable cause to believe it will be there at the time of the execution. Why isn't that sufficient to make the warrant valid?
04-1414 +++$+++ 18568 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It will make the warrant valid under the Particularity Clause.
04-1414 +++$+++ 18569 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Will it also satisfy the text of the Constitution that says no warrant shall issue except upon probable cause? And I'm asking you why is it not adequate probable cause to say we believe that will probably happen when the anticipatory event occurs?
04-1414 +++$+++ 18570 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the text of the -- of the probable cause requirement in the Fourth Amendment has clearly been announced by this Court to always require the magistrate's determination of the facts, as well as the legal grounds, after studied caution to make that determination.
04-1414 +++$+++ 18571 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, he has made a determination of the facts that will establish probable cause.
04-1414 +++$+++ 18572 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He has, Justice Stevens, but he has ceded his discretion to finalize that -- to finalize that decision.
04-1414 +++$+++ 18573 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Will you -- will you just help me with this? Justice Stevens answered my question. The word anticipatory. The word anticipatory does suggest it isn't valid for a while. Nothing else in the warrant does. What am I supposed to do if I think there's adequate probable cause for issuing that warrant right now in respect to 12 of the things? And it's really pretty hard for me to try to understand what this warrant is about if I'm supposed to understand it, by reading through about 15 or 20 pages of small print and there discovering somewhere in the back of it some -- the post office says I'm not going to execute this until this other package gets there too. Now, that does make me nervous. That -- that supports you.
04-1414 +++$+++ 18574 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That does not --
04-1414 +++$+++ 18575 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I understand that, but it's not going to support you enough unless you connect this anxiety I'm having now about this being buried in page 28 of an affidavit when it's an important condition of the warrant, the only clue to that fact being the word anticipatory. And there we are. Now, you tell me why this anxiety, which is going to help you, is connected to something in the law.
04-1414 +++$+++ 18576 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, they are prone to abuse by nature. They are --
04-1414 +++$+++ 18577 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, please don't. I start with an assumption that an anticipatory warrant is constitutionally valid. I start with that assumption. I'm assuming that the conditions have to reasonably describe. My anxiety is resting only on the fact that this warrant doesn't seem to be an anticipatory warrant but for one word, and to know what it's about, you have to look through 28 pages of fine print. Now, you connect that anxiety to something in the law.
04-1414 +++$+++ 18578 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Breyer. In Groh v. Ramirez, this Court set forth very clearly that the purpose of the particularity requirement serves two functions. One is for law enforcement; the second is for the homeowner. And for law enforcement, it is very clear in these -- this Court's decisions that that must be so that the officer executing it can simply and quickly and efficiently determine the limits of their power to search.
04-1414 +++$+++ 18579 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, all -- this whole argument begs the question. It -- it assumes that the particularity requirement includes time, not only who, what, where, but also when. Right? I mean, you -- you acknowledge that if you're wrong about that, if you're wrong about the fact that who, what, and where automatically includes when, the argument you've just made doesn't get anywhere.
04-1414 +++$+++ 18580 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, I -- I can -- it is inherent in the place, the objects, and the persons to be searched in a particularity --
04-1414 +++$+++ 18581 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I understand that's your argument, but you agree that if -- if that argument is wrong, you're done.
04-1414 +++$+++ 18582 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. With regard to anticipatory warrants, time is part of the particularity requirement. The time of the execution of the warrant, the time of the determination of probable cause that contraband will be present, the time of the determination of probable cause, which is the triggering event, which comes from the Fourth Amendment itself --
04-1414 +++$+++ 18583 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They have first the outer limit of the 10 days in the warrant itself. And in fact, this warrant was executed within 2 days of its issuance. Is that not --
04-1414 +++$+++ 18584 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Justice Ginsburg.
04-1414 +++$+++ 18585 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And could it be if the officer knows that this package -- let's say it's loaded with dynamite or guns or drugs -- is going to be delivered at a certain time and it -- the delivery occurs, and then the officer busts in and says, there's exigent circumstances. They're going to take those drugs and they'll be off the premises. That might happen.
04-1414 +++$+++ 18586 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That might happen. Exigent circumstances in the execution of a warrant were not presented in this case.
04-1414 +++$+++ 18587 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, my -- my question is, isn't it better to have the police go to the magistrate when there's time for the magistrate to reflect, than to have this scenario where the police will say this was really dangerous stuff, exigent circumstances? Wouldn't you want the officer to apply in advance for the warrant?
04-1414 +++$+++ 18588 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice -- Justice Ginsburg, yes, I would. And I think at that point the officers would also have to leave the final determination as to whether probable cause has been completed to the magistrate through the use of many alternatives, including a telephonic warrant where the --
04-1414 +++$+++ 18589 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even -- wasn't this man -- magistrate told we've set this whole thing up? We've put this package in the mail. It's going to be delivered at such and such a time. Wasn't the magistrate told that?
04-1414 +++$+++ 18590 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Ginsburg.
04-1414 +++$+++ 18591 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So why was there a need for a second call when exactly that happened?
04-1414 +++$+++ 18592 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, specifically what was highlighted in this case is that the individual receiving the package was his wife, Justice Ginsburg. And it's -- it's clear in the record that she received it. Moments later, they rushed in. The first thing she said to the officers is what is going on here and why are you here? What is going on here? Why are you here? At that point, I believe clearly under -- under the court of appeals decisions and other court decisions, that this crime, the knowing receipt of the illegal material, had not been completed. There had been no crime committed at that point. And there was no -- no knowing receipt of the illegality of this. There's never been any evidence --
04-1414 +++$+++ 18593 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Didn't -- was -- he was on the premises?
04-1414 +++$+++ 18594 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He was inside the --
04-1414 +++$+++ 18595 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And he said, I know why they're here.
04-1414 +++$+++ 18596 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, he was inside the house, and he walked outside thereafter.
04-1414 +++$+++ 18597 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, and they -- and they found other -- other videotapes besides the one that had just been delivered, didn't they, in the course of the search?
04-1414 +++$+++ 18598 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They did, Justice Scalia. Now, but they did enter the house prior -- they entered the house prior to a lawful triggering condition. In such an example, they could have contacted the magistrate immediately, advised what had happened, who would have realized at that point that a crime had not been committed, that there was not probable cause that this crime, the knowing receipt, had been committed.
04-1414 +++$+++ 18599 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And exactly the same thing would be true if they had stated the triggering event clearly somewhere in -- in the warrant. The -- the argument here is that the triggering event was stated in the affidavit.
04-1414 +++$+++ 18600 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But this does -- Justice Souter, this highlights why the triggering event must be clearly, specifically drawn by a magistrate with studied caution about the exact factors for probable cause which would allow this search. And if it's buried in some affidavit somewhere, if it's not on the front of the warrant, or if it's vested in the discretion of the officer to make that determination whether that's close enough, then it is prone to these abuses and it is -- requires the magistrate to make that final legal determination.
04-1414 +++$+++ 18601 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel.
04-1414 +++$+++ 18602 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
04-1414 +++$+++ 18603 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Dreeben, you have 3 minutes remaining.
04-1414 +++$+++ 18605 +++$+++ FALSE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Dreeben, a quick yes or no. Does the Government concede that when you have an anticipatory warrant, the warrant is not properly executed until the -- the anticipated event occurs?
04-1414 +++$+++ 18606 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Scalia, because the representations that are made to the magistrate to secure the warrant include the fact that the warrant will not be executed and the agents should --
04-1414 +++$+++ 18607 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that -- that puzzles me a little. The -- the affidavit says execution will not take place until the event. But the authority to search, which is in the last paragraph, is not limited to the time after the anticipatory event.
04-1414 +++$+++ 18608 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true because I think that the magistrate is making the common sense judgment that this will be -- we don't know exactly when --
04-1414 +++$+++ 18609 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, not even -- it is not only the warrant, but the affidavit itself doesn't say we merely request permission to search after the -- after the event. It's a general request for authority to search.
04-1414 +++$+++ 18610 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It makes the representation, and I think what draws the link between the conditions that are represented to occur before the warrant will be executed and the warrant itself are paragraphs 1, 2, and 3 of the items that are to be seized because those pertain --
04-1414 +++$+++ 18611 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. I'm drawing your attention to paragraphs 61 and 64 of the affidavit.
04-1414 +++$+++ 18612 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I understand that, Justice Stevens. But the -- the items to be seized include the videotape and its containers which are paragraphs 1, 2, and 3.
04-1414 +++$+++ 18613 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but the authority is broader than the authority to search for those items.
04-1414 +++$+++ 18614 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true. But those items -- the magistrate can conclude that there's probable cause to believe that they'll be on the premises only after delivery has taken place. And the magistrate has issued the warrant, and the three principal items at the top are those things. So it's logical to conclude that the magistrate formed the view that there's probable cause to believe that these items will be on the --
04-1414 +++$+++ 18615 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it takes a step of reasoning beyond merely saying we incorporate the -- the affidavit into the warrant.
04-1414 +++$+++ 18616 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it takes a very small step of logical inference, but I agree with you, Justice Stevens, that it doesn't say everything that is logically implied in the magistrate's probable cause finding. But the magistrate's probable cause finding is predicated on the view that the items will be there because the Postal Service has represented they'll deliver them. The burden of the Ninth Circuit's view is that the Particularity Clause applies to the triggering condition and mandates that it be stated in the text even though the Fourth Amendment's text doesn't contain that requirement. This Court in Dalia v. United States rejected a similar effort to add a requirement to a warrant that would authorize surreptitious entry to install a covert bugging device, and the Court's reasoning in Dalia makes clear that the Court was unwilling to go on a progressive path of reading things into the Fourth Amendment's Particularity Clause that are not there.
04-1414 +++$+++ 18617 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you just want us to say, look, the Ninth Circuit is wrong. They're okay to have conditional warrants like this and there is no absolute rule you always have to have the triggering condition in. As to whether this is too confusing or not too confusing, send them back and let them figure it out.
04-1414 +++$+++ 18618 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't want the Court to send it back to the Ninth Circuit to impose yet new requirements on the execution of warrants. (Laughter.)
04-1414 +++$+++ 18619 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What I want the Court to hold is that the triggering condition in an anticipatory warrant is not subsumed in the Particularity Clause and therefore it need not be in the face of the warrant at all. And alternatively, if the Court believed that it did, that a warrant that's executed after the triggering condition has occurred, does not require suppression of evidence. Thank you.
04-1414 +++$+++ 18620 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Dreeben. The case is submitted.
04-1477 +++$+++ 18624 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Jones v. Flowers. Mr. Kirkpatrick.
04-1477 +++$+++ 18626 +++$+++ FALSE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: In Mullane, this Court held that due process requires that notice efforts conform to what a person who actually desires to provide notice would do under the circumstances. Such a person would not turn a blind eye to the return of an initial mailed notice, but would consider reasonable follow-up steps to provide that notice. Where valuable real property is at stake and the State learns that its initial effort has failed, the State should do two things. First, it should search readily available sources for a better mailing address and resend the notice, and second, if a better address cannot be readily ascertained or the second notice also fails, the State should post a notice on the property or contact the occupants.
04-1477 +++$+++ 18627 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Kirkpatrick, I don't recall what -- what the rule is. Does notice have to be given by registered mail? Would it -- would it be adequate notice in the -- in the ordinary case to send notice by regular mail?
04-1477 +++$+++ 18628 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, in a case like this where there's valuable real property, regular mail would not be sufficient to comply with due process, and the reason why is this. A reasonable person who actually desires to give notice will use certified mail for the information that comes back to the sender. Then the sender either knows the notice has been received and they can stop with confidence, or they know that they have failed and there's still time to take reasonable follow-up steps.
04-1477 +++$+++ 18629 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but do we have a case that says that, you have to use registered mail?
04-1477 +++$+++ 18630 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
04-1477 +++$+++ 18631 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I didn't think we did. And it would seem to me that especially when you have the taxpayer's name and address on file, I doubt whether it would be a denial of due process to send notice by regular mail to that address. And if -- if that satisfies due process, the State would never have known that it did not reach the individual.
04-1477 +++$+++ 18632 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia --
04-1477 +++$+++ 18633 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And it seems -- it seems mean to punish the State for going the extra mile and sending the notice by registered mail because that informed them that it didn't reach him.
04-1477 +++$+++ 18634 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but Justice Scalia, the State, once informed that the letter had never reached Mr. Jones, did nothing. The State was indifferent to the information that came back. So, in fact, what the State did here was no better than sending regular mail because they ignored the information that came back from the use of certified mail. And, in fact, had they used regular mail, it might have been better for Mr. Jones. Now, we're here in this case to discuss what due process --
04-1477 +++$+++ 18635 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why?
04-1477 +++$+++ 18636 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1477 +++$+++ 18637 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In Mullane, it was regular mail. It wasn't certified mail. Right?
04-1477 +++$+++ 18638 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that's correct.
04-1477 +++$+++ 18639 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And isn't it 100 percent clear that there were a number of those addressees who didn't get the letter?
04-1477 +++$+++ 18640 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Ginsburg, that's correct, but --
04-1477 +++$+++ 18641 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And yet, their interests were cut out by the decision, and the Court said that was okay.
04-1477 +++$+++ 18642 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the context was very different in Mullane because in Mullane there was a large number of interested parties with very small interests in a trust, and what they were being given notice of was an accounting to settle those trusts. And as long as some of the people who were similarly situated received notice, they could act in a way that would protect other members of the class. Here, we're talking about real property with just a single owner, and in this case, where we have an $80,000 house that was lost and sold for only $21,000, it would seem to me that due process would require more than just regular mail.
04-1477 +++$+++ 18643 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you have another factor here that wasn't present in Mullane; that is, the person who received notice has a statutory obligation to advise government of the current address. The people involved in Mullane had no such obligation to notify anybody of their current address.
04-1477 +++$+++ 18644 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Justice Ginsburg. But what Mullane announced is that the government must use reasonable diligence to ascertain an address where it can be found. In this case, we don't quarrel --
04-1477 +++$+++ 18645 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It wasn't the government in -- in Mullane it wasn't the government.
04-1477 +++$+++ 18646 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's right. The -- the party charged with giving notice in Mullane had an obligation --
04-1477 +++$+++ 18647 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How do -- how do we -- I mean, this was the problem I -- I had with -- with your -- your brief here, and it's the same problem Justice Ginsburg has. What kind of weight, what significance do we give to this obligation to keep the government informed? On the face of it, it seems like a -- an obligation that ought to get considerable weight. Everybody knows that if you own real estate, you've got to pay real estate taxes on it. You're going to have a hard time doing that if they don't know where to send the bill, and so on. So it seems like a very reasonable obligation for the government to put on you. What weight do we give that in -- in the analysis?
04-1477 +++$+++ 18648 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, I think it is given weight when we evaluate the reasonableness of the initial notice effort, and we do not quarrel with the State first sending notice by certified mail to the last address in the State property records.
04-1477 +++$+++ 18649 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And then that would be so even if there were no affirmative obligation on the property owner.
04-1477 +++$+++ 18650 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1477 +++$+++ 18651 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You'd say, well, if they -- if they send the -- the notice to the last address they had, or if they send it -- since we're talking about real estate, maybe if they send it to the -- to the property, nothing wrong with that. So that's kind of a wash.
04-1477 +++$+++ 18652 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, I think that there are a couple of points that need to be made. One is that Mr. Jones' failure to update his address did not relieve the State of its constitutional obligation.
04-1477 +++$+++ 18653 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. But I want to know what Mr. -- I mean, it does not relieve it of some constitutional obligation, and we're trying to figure out what that is. And -- and the point of my question is in figuring out what it is, what significance do we give to the affirmative obligation on the part of the property owner to keep the government informed of the address?
04-1477 +++$+++ 18654 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The answer is once the State was informed that the first mailed notice had failed, it gets no significance.
04-1477 +++$+++ 18655 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Then -- then it has no significance ever because the -- the State has an obligation to use the best address it has, whether he's got an obligation to -- to keep the address updated or not. And -- and this is the -- the tough point for me with your case. It seems to me that your case depends on our saying the obligation to keep the -- the address current has absolutely no significance.
04-1477 +++$+++ 18656 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, it has no significance once the State is actually informed that the notice has failed because I think the significance of the statute is it increases the State's confidence in the address that it's initially using. But once the certified mail comes back unclaimed, at that point it knows that the address from 1967 in its records and the statutory obligation to update the address, that is outweighed by actual knowledge that in both 2000 and 2003 the certified mail notices were not received. I'd like to go back to Justice Ginsburg's first question about why regular mail might actually have been better in this case. Had regular mail been sent, we don't know what would have happened. We might not have had a due process challenge because the envelope would have ended up in the mailbox at Bryan Street. It would have been brought inside by the occupants, and they may very well have brought it to Mr. Jones' attention, the way they did when they received the eviction notice after the redemption period had closed. But I think the most important factor, even if we don't agree on whether certified mail was required by the Constitution in the first instance, is that once the government used certified mail, it cannot then ignore the information that it gained as a result of that choice. This --
04-1477 +++$+++ 18657 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And he also had a continuing obligation to inform the government of his address. One fact about this case that -- perhaps it was in the record and I missed it. At the time the property was sold, how much did Mr. Jones owe, taking account of the back taxes, the interest, the penalties, all that?
04-1477 +++$+++ 18658 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Approximately $6,000 because the property was sold for $21,000. The minimum bid was the assessed value of the property, which in Arkansas is 20 percent of the fair market value. So that was about $14,000. Plus about $4,000 in back taxes, another 10 percent in interest, and another 10 percent in penalties, and some small, in this instance, costs of notice. But that brings us to an important point, is that the cost of notice and the cost of a search to find a better address will not be borne by the State. It will be borne either by the owner as a cost of redeeming the property or it will be borne by the purchaser as a cost of acquiring the property. So certainly here where we have an $80,000 house sold for $21,000, there was sufficient margin to allow for some costs to find Mr. Jones so that he could be informed without making this property --
04-1477 +++$+++ 18659 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How did they find him, by the way?
04-1477 +++$+++ 18660 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you tell me --
04-1477 +++$+++ 18661 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- how in your opinion?
04-1477 +++$+++ 18662 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, excuse me.
04-1477 +++$+++ 18663 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How did they find him?
04-1477 +++$+++ 18664 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The purchaser served an eviction notice to the property --
04-1477 +++$+++ 18665 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. I'm not saying how did they? How in your opinion should the Post Office Department or the government have found him?
04-1477 +++$+++ 18666 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They should have searched three categories of sources for a better address and then tried mail again. And those three categories are the State's own records, such as the driver's license records or voter registration rolls; second, public directories like the phone book or an Internet search engine; and third, they should have considered using commercial services such as those that are used by creditors.
04-1477 +++$+++ 18667 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask --
04-1477 +++$+++ 18668 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So they find 13 people called Gary Jones or G. Jones in Little Rock. Now, what do they do?
04-1477 +++$+++ 18669 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Two things. One is they can look for the Gary Jones that has some tie to the Bryan Street address, and certainly --
04-1477 +++$+++ 18670 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I interrupt with this question? Do you think all those steps were constitutionally mandated?
04-1477 +++$+++ 18671 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I think what is constitutionally --
04-1477 +++$+++ 18672 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What was constitutionally mandated in your view?
04-1477 +++$+++ 18673 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Reasonably diligent efforts to ascertain a correct address after the return of the first certified mail and how far --
04-1477 +++$+++ 18674 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you would not include posting on the -- posting a notice on the house as constitutionally mandated.
04-1477 +++$+++ 18675 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, I would. First, I think that the State can search for a better address by mail.
04-1477 +++$+++ 18676 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, they can -- they can do --
04-1477 +++$+++ 18677 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1477 +++$+++ 18678 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- a lot things.
04-1477 +++$+++ 18679 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
04-1477 +++$+++ 18680 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm trying to decide what they must do.
04-1477 +++$+++ 18681 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With real property, if the owner has not been notified by mail, absolutely I think they should post notice on the property. That is a traditional way --
04-1477 +++$+++ 18682 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would that be constitutionally sufficient if they posted a notice?
04-1477 +++$+++ 18683 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be constitutionally sufficient if they posted a notice because they could not ascertain a better address.
04-1477 +++$+++ 18684 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, now so it would not be constitutionally sufficient if that's all they did.
04-1477 +++$+++ 18685 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. And I think that's --
04-1477 +++$+++ 18686 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So what is the constitutional minimum that would be sufficient?
04-1477 +++$+++ 18687 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Reasonably diligent efforts to find a better address and if a better address --
04-1477 +++$+++ 18688 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It would be decided on a case-by-case basis depending on the particular facts in the case.
04-1477 +++$+++ 18689 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this Court in Schroeder v. City of New York, I think, recognized that it's impossible to have a mechanical rule to apply in every circumstance. I do think, though, that the --
04-1477 +++$+++ 18690 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And your opponent argues very persuasively the mechanical rules are very important in this particular area of government business.
04-1477 +++$+++ 18691 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they are, but in this case, the State knew within 2 weeks of sending the initial mailed notice that it had not been received. That was 3 years before the taking. So there was sufficient time for the State to take some very minimal efforts to provide notice. And remember, with regard to posting, in this case the State actually visited the Bryan Street property and they did not post a notice or contact the occupants at that time, although they could have done so for virtually no cost at all, no additional effort. And we know from what happened with the eviction notice that had they taken that very minimal effort to post the notice, it would have worked.
04-1477 +++$+++ 18692 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I take it in -- in this case -- I mean, I -- you're probably right that it would have -- it would have worked here, but I -- I take it that in the absence of that -- that hindsight, you would say that in -- in the regular case that simply posting notice on the house, after the letter is returned, would not be enough, that the -- that the posting on the house would be sufficient only if they had exhausted other efforts to get a better address so that in this case, going back to Justice Breyer's example, they -- they'd have to follow up whatever it is, the 18 G. Joneses or Gary Joneses that they could find in the phone book before they could then fall back and resort to posting on the house. Is -- do I understand you correctly?
04-1477 +++$+++ 18693 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, you do. That -- that is our -- our point, but I would like to qualify that slightly. In -- if the search does not, with reasonably diligent efforts, turn up a better address or if there's a better address and the letter comes back, I think at that point it's perfectly reasonable to stop searching for an address, to give up on mailed notice, and at that point post the property because getting --
04-1477 +++$+++ 18694 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the search of -- the search of what? Just Little Rock or the State of Arkansas? What if this guy had moved to Chicago? They -- he'd be out of luck under your approach then.
04-1477 +++$+++ 18695 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if they contracted with a credit bureau, for example, or a skip tracer, it is quite easy to find people that have moved across the country, much easier today than it was, you know, years ago because technology has really expanded the amount of information that is readily ascertainable.
04-1477 +++$+++ 18696 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How many people --
04-1477 +++$+++ 18697 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does -- does it follow from your argument that someone who purchases at a tax sale, before they conclude the purchase, should find out what the State has done?
04-1477 +++$+++ 18698 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, that would be a reasonable way to have a statutory scheme.
04-1477 +++$+++ 18699 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the purchaser from that purchaser the same. In other words, if Flowers had sold to X, then X has to make the same inquiry because he sees I guess what, a quit claim deed or a tax sale. So before a purchaser can purchase from Flowers, that purchaser too must see whether or not they hired an outside agency and so forth.
04-1477 +++$+++ 18700 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It might be prudent to do that. I think that one --
04-1477 +++$+++ 18701 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, isn't it required to do that under your title, if you're going to have your title set aside by Jones?
04-1477 +++$+++ 18702 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, although if the title is set aside, Ms. Flowers will receive a full refund of all the money that she's paid, and that's under the Arkansas statutory scheme.
04-1477 +++$+++ 18703 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, what about the purchaser from Jones? If -- pardon me -- from Flowers. If Flowers has spent the money, then that purchaser is out of luck.
04-1477 +++$+++ 18704 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That may be correct and I think when somebody goes to purchase property and they find out that title insurance is not available because of the tax sale deed, they have to consider the potential exposure.
04-1477 +++$+++ 18705 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So one of the consequences of your rule is to devalue any property sold by the government because it is open to this kind of challenge for deficiency in title. So you've now devalued the property in the hands of the State.
04-1477 +++$+++ 18706 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think only for a temporary period of time because there's a 2-year statute of limitations to challenge the sale and that's why the State tells tax sale purchasers that they should not make expensive improvements to property until that time has closed.
04-1477 +++$+++ 18707 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask, Mr. Kirkpatrick? In Arkansas, is the tax -- tax delinquency a matter of public record so a prospective purchaser would find it by making a title search?
04-1477 +++$+++ 18708 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is a matter of public record. I'm not sure whether --
04-1477 +++$+++ 18709 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it could be revealed by a title search?
04-1477 +++$+++ 18710 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know, Your Honor, whether a title search would reveal it, but certainly in the county records, all of the delinquent properties are entered and open to the public for inspection. They may have to look in two different places.
04-1477 +++$+++ 18711 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would this case come out differently? You know, your client had an obligation to keep the State informed of -- of his -- his address so that they could send the tax bills to him, suppose the statute, in addition to simply reciting that obligation, said, and if the taxpayer does not keep the State advised of his current address, any notice mailed to the last address that he gave will suffice for all purposes.
04-1477 +++$+++ 18712 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, I --
04-1477 +++$+++ 18713 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose it said that explicitly. Would that -- would that make this case come out differently?
04-1477 +++$+++ 18714 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it would not because --
04-1477 +++$+++ 18715 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why? I mean, the State can punish people for not doing what the law tells them to do, and here the State is saying we tell you to keep us -- you keep us advised of your -- your address. If you don't, I guess we could throw you in jail for half a year, but no, we're not going to do that. We're just going to say that -- that your -- your punishment for violating the law is that this kind of a notice will suffice.
04-1477 +++$+++ 18716 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, I believe the Federal constitutional obligation would still apply regardless of whether the State of Arkansas tried to legislate its way out of it.
04-1477 +++$+++ 18717 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but there -- no, but this is a consequence of violating the law of -- of Arkansas. Certainly the State can impose consequences for violating its law.
04-1477 +++$+++ 18718 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it --
04-1477 +++$+++ 18719 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You know, and my next question is going to be, if you say it would come out differently, then isn't -- isn't it sort of silly to make the State go on and say that? If they could do the same thing by simply reciting what's going to happen, why -- why should we make them do that?
04-1477 +++$+++ 18720 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that -- Justice Scalia, I don't think that -- if Arkansas had that kind of statute, that it would make this case come out differently because I think the due process analysis and the application of the Mullane standard to these facts where the initial mailed notice comes back would be the same. I think it may be a factor, when we're determining what is reasonable, whether or not the owner complied with that statute, but I don't think that Mr. Jones loses his constitutional right.
04-1477 +++$+++ 18721 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Could they fine him for not -- could they fine him for not -- for not keeping them advised of -- of where -- where his tax address is?
04-1477 +++$+++ 18722 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I suppose as a matter of criminal law they could.
04-1477 +++$+++ 18723 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They could. Suppose they could. Right. Could they fine him -- how much money did you lose here?
04-1477 +++$+++ 18724 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He lost about $70,000 worth of equity.
04-1477 +++$+++ 18725 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Could they fine him $70,000?
04-1477 +++$+++ 18726 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would seem to be a very harsh penalty.
04-1477 +++$+++ 18727 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's pretty harsh, but do you think this Court would strike it down?
04-1477 +++$+++ 18728 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do.
04-1477 +++$+++ 18729 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You do.
04-1477 +++$+++ 18730 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I frankly don't see the difference between failing to keep the State advised as to your residence and failing to pay your taxes. He knew he had a duty to pay the taxes.
04-1477 +++$+++ 18731 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
04-1477 +++$+++ 18732 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And should not that figure into the analysis?
04-1477 +++$+++ 18733 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, it should not figure in at all because he still had a statutory right to redeem the property, and once he had that statutory right to redeem the property, due process --
04-1477 +++$+++ 18734 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, no, I understand that. But doesn't -- he would know whether the taxes had been paid or not.
04-1477 +++$+++ 18735 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In fact, in this case he did not. And while the record is rather sparse on this, the mortgage company paid the taxes for 30 years. After the mortgage was retired, Mr. Jones thought that the occupant, Mrs. Jones, was paying the taxes. He was mistaken in that belief and that's what happened here.
04-1477 +++$+++ 18736 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, this is a very unique fact situation. We're trying to announce a rule that will govern the typical transaction. And is it not true that typically the homeowner will know whether or not he's paid his taxes?
04-1477 +++$+++ 18737 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Typically the homeowner certainly should, but we all make mistakes and certainly there are lawyers --
04-1477 +++$+++ 18738 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But he has to make mistakes for 2 or 3 years running before it's significant.
04-1477 +++$+++ 18739 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Arkansas set up a statutory scheme that gave him a right to redeem up until 30 days after the sale of the property. That statutory right -- he gets due process whether he's innocent or not innocent. And I think in the case where --
04-1477 +++$+++ 18740 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but how long do the taxes have to be in arrears before they can send him a notice and start the proceeding running?
04-1477 +++$+++ 18741 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They wait until the taxes have been delinquent for 1 year. At that time, it's certified from the county to the State. They send notice saying that 2 years into the future, there will be a tax sale if the property hasn't been redeemed. Even after that public sale, there's a 30-day redemption period. In this case the house didn't sell at the public sale. So then we started an entirely new process of the negotiated sale, which again involved notice and ultimately the property was sold at negotiated sale. So there is sufficient time after the State learns about the failure of the initial mailed notice to take further reasonable steps.
04-1477 +++$+++ 18742 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Kirkpatrick, you distinguish Mullane. You recognize that a lot of the people never got that notice, and you said there were many people involved there, that you could rely on others. It's also how much of a burden are you going to put on the notice-giver when you have a large class involved. There was a figure -- and I forgot what the number it was -- of how many notices are -- don't succeed in delivery.
04-1477 +++$+++ 18743 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Ginsburg. The -- the figure, which comes from the Tsann Kuen case out of Arkansas Supreme Court, is that there are 18,000 tax delinquent parcels certified every year in Arkansas. But what we do know is that 85 percent of tax delinquent properties in Arkansas are redeemed by the owner either before the tax sale or within 30 days after. So we don't know how many notices came back unclaimed after the first attempt.
04-1477 +++$+++ 18744 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ His wife is living in the house?
04-1477 +++$+++ 18745 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ She was.
04-1477 +++$+++ 18746 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Were they divorced?
04-1477 +++$+++ 18747 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. They were separated.
04-1477 +++$+++ 18748 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. So he owns the house. She doesn't. She must not pay any taxes, and she sees these letters coming from him registered and says, oh, they're his problem. That's basically what could have happened.
04-1477 +++$+++ 18749 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Basically, Justice Breyer, but the -- the letters --
04-1477 +++$+++ 18750 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If you have that kind of relationship with your wife, doesn't he have an obligation to watch what's going on?
04-1477 +++$+++ 18751 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, he does have some obligation to watch what's going on. But I would like to point out that the letters did not actually come to the house. There were three delivery attempts for each letter, but the letters themselves -- nobody was at home during the day when the letter carrier came by. So the letters themselves were not left.
04-1477 +++$+++ 18752 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did they leave a notice?
04-1477 +++$+++ 18753 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the letter carrier followed proper procedures, a notice would have been left, but there's nothing in the record to indicate one way or the other whether that happened. But at most, that notice would say that there was a certified letter for Gary Jones and it may have said that it was sent by the Commissioner of State Lands. It didn't say tax delinquent notice. The county is who assesses the taxes. Many lay people might think that the Land Commissioner of Arkansas was writing about the parks or the State forests or any number of things. So I don't think we can charge Mrs. Jones with knowledge that there was a tax delinquent notice waiting for Mr. Jones just because, if the letter carrier did what he or she should have, a notice of delivery slip would have been left at the house. But remember also that after the first notice came back, it was 3 years later when they sent the notice of the negotiated sale, and that was after they knew that it was likely a futile gesture to send certified mail to Mr. Jones at that address, and it was after they had actually gone out and visited the house. So at a minimum, they should have posted a notice at the property. And while in some cases like Greene v. Lindsey or Schroeder v. City of New York, posting was inadequate, and the Court said that mail would have been better, at least here, knowing that mail had not worked, even if the State chose not to search for a better address, at a minimum they should have posted a notice at the property and that would have made all the difference in this case. If there are no further questions, I'd like to reserve my time.
04-1477 +++$+++ 18754 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. Mr. Phillips, we'll hear from you.
04-1477 +++$+++ 18756 +++$+++ FALSE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: It's somewhat startling to me that in a case involving the fundamental question of what notice is due under the Due Process Clause, that the phrase, reasonably calculated to provide notice to the affected property owner, was never used in the petitioner's submission because at least, as I remember Mullane I suppose from my law school days and -- and since then, that is the fundamental test. The question is has the State undertaken to -- to make a reasonable calculation to, in fact, provide notice under these circumstances. It's sort of startling to me in the -- in the face of a decision like this Court wrote in Mennonite Board, where it says explicitly, you know, the minor inconvenience and administrative burden of using the regular mails is a complete answer to claims that something less than that should be provided. And again, petitioner's counsel's first answer to the question, would ordinary mail have been sufficient under these circumstances, is no. For property like this, that's not sufficient. It seems to me that -- that the Dusenbery case answers that because while it was true that the mails that were sent originally to the prison itself were certified, there's no certification process to get the mails --
04-1477 +++$+++ 18757 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Maybe this day -- in today's world, a registered letter is worse than ordinary mail. That is, I don't think -- my understanding is that the post office, unlike FedEx and unlike UPS, if you're not home, they leave a -- a notice, you know, and you check a box, and if you check the box, they'll leave it off the next day. We don't live in a -- my wife isn't home. My wife works. And -- and most wives no longer stay home to get the mail, and we don't all have butlers at the door. And you call up the post office. They say, oh -- if you get through to a human being, which takes 15 minutes, after you go through the menu, they say, phone the post office branch. And they say go get in the car, find a parking place, get in the line, and there's half a morning gone. Now, why is that a reasonable way? Why can't they do what FedEx does? This is a world -- husband works, wife works, two children are screaming. We've got to get them to the doctor. We have to have them at school. They have appointments all morning, and there's nobody home. So whatever they did with Mullane and said registered mail is fine, why isn't it unreasonable to use that system rather than use FedEx's system?
04-1477 +++$+++ 18758 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I mean, that's a pretty remarkable due process constitutional --
04-1477 +++$+++ 18759 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why not? It says calculated. It may be. Now, you tell me why it's so remarkable because I think I could take judicial notice of what life is like for most families in the world today, that they don't have butlers, et cetera.
04-1477 +++$+++ 18760 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I may -- I may let Mr. Feldman defend the -- the Postal Service because he is the Solicitor General's lawyer. (Laughter.)
04-1477 +++$+++ 18761 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the reality is that for the vast majority of the mails, the mails do get through. And -- and it is a reasonable calculation that if you mail something to someone --
04-1477 +++$+++ 18762 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But --
04-1477 +++$+++ 18763 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that it will get there and it will be properly delivered. That's the -- the purpose of the certification.
04-1477 +++$+++ 18764 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the whole point -- at least I understand -- of Justice Breyer's question is that you have taken a step to make it more difficult for the mail to get through by insisting that the person be there to sign for it, and it's obviously more likely than not he's not going to be there. And if you had just used regular mail and dropped it off, I think more likely he would have gotten it.
04-1477 +++$+++ 18765 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- the purpose of using certified mail is to make sure that it actually got to the person --
04-1477 +++$+++ 18766 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. The purpose of certified mail is to make sure you know if it didn't get to the person. And you knew that and then you didn't do anything about it.
04-1477 +++$+++ 18767 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, now it works both ways, though, Mr. Chief Justice, because if -- if it goes to my neighbor -- let's assume numbers are transposed -- it goes to my neighbor and the neighbor is there and sees the information, they'll say that the -- that that's -- that goes to across the street. And then you take it across the street and you get it signed. That's because you talked to a specific individual. So it is, in fact, designed to enhance the likelihood that it will actually get there. But I don't think the issue here is --
04-1477 +++$+++ 18768 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wait. Let -- let them do that. Fine. Just have a little box and the person signs and says, tomorrow leave it at the house, just like FedEx does. (Laughter.)
04-1477 +++$+++ 18769 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And as a matter of policy, I wouldn't necessarily disagree with that.
04-1477 +++$+++ 18770 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ This is the FedEx rule of due process.
04-1477 +++$+++ 18771 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry?
04-1477 +++$+++ 18772 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ This is the FedEx rule of due process. (Laughter.)
04-1477 +++$+++ 18773 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's exactly what it is. And as I say, as a matter of policy, Justice Breyer, I wouldn't necessarily disagree with it. But as a matter of what the Constitution strait-jackets States to provide, it strikes me as a -- as a pretty extraordinary rule.
04-1477 +++$+++ 18774 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But is the Chief Justice not correct that ordinary mail is more apt to get to the destination than certified mail?
04-1477 +++$+++ 18775 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if it is, it's probably only at a -- at a marginal number. My guess is --
04-1477 +++$+++ 18776 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But even if it's marginal --
04-1477 +++$+++ 18777 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the percentages are very small.
04-1477 +++$+++ 18778 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the -- the principal purpose of the certified mail is to let the sender know whether or not the notice was received. It would seem that a State that decides to -- to make it necessary in every case to find that answer should have some -- some purpose in doing so and -- and, therefore, some follow-up that would occur when it's not delivered.
04-1477 +++$+++ 18779 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, except for this problem -- I mean, the other problem you have is that we don't -- all we know is that it wasn't -- it -- it came back unclaimed. So we don't even know that it didn't get delivered. All we know is that no one was prepared to sign for it and accept it. We don't know, as Justice Breyer's hypothetical --
04-1477 +++$+++ 18780 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but you also know that nobody got the notice. If nobody signed for it and took it, nobody read the letter.
04-1477 +++$+++ 18781 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you could look at the -- you could look at the outside and say, I'm not going to sign for this, and it's unclaimed.
04-1477 +++$+++ 18782 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you would know that the letter was not opened and read by the addressee.
04-1477 +++$+++ 18783 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, to be sure, I know that it wasn't opened and read, but all I'm saying is that what we don't -- we don't even know --
04-1477 +++$+++ 18784 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if it isn't opened and read --
04-1477 +++$+++ 18785 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that Justice Breyer is correct.
04-1477 +++$+++ 18786 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- if it isn't opened and read, they didn't get notice. They didn't get actual notice.
04-1477 +++$+++ 18787 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They didn't receive actual notice. And, of course, this Court has routinely said that there's no constitutional requirement that they receive actual notice.
04-1477 +++$+++ 18788 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask one other question I intended to ask your opponent? How many States have rules that require something more?
04-1477 +++$+++ 18789 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think in their reply brief at least, they make an effort, and we didn't go and -- and do a 50-State survey between a week ago and now to find out. But, you know, a fair number of States do. I -- I would say 15, 20.
04-1477 +++$+++ 18790 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Including -- including Arkansas. Didn't Arkansas change its law so now it requires if you -- if it's unclaimed, they have to do personal service?
04-1477 +++$+++ 18791 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If it's their homestead, not -- not for every property that is -- for which taxes are not paid, but for --
04-1477 +++$+++ 18792 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This taxpayer, though --
04-1477 +++$+++ 18793 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- for property -- I'm sorry?
04-1477 +++$+++ 18794 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This taxpayer -- even though he failed to give notice of his current address, this taxpayer would be entitled under the current statute to personal service.
04-1477 +++$+++ 18795 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Ginsburg, I don't believe that is true because this is not this taxpayer's homestead. He no longer lives at this address. He, as his -- as his argument, spends a great deal of time explaining --
04-1477 +++$+++ 18796 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought he still lived in --
04-1477 +++$+++ 18797 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- he lives elsewhere.
04-1477 +++$+++ 18798 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought he still lived in Arkansas.
04-1477 +++$+++ 18799 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, he lives in Arkansas, but that doesn't make this his homestead.
04-1477 +++$+++ 18800 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Homestead.
04-1477 +++$+++ 18801 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1477 +++$+++ 18802 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I see.
04-1477 +++$+++ 18803 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So he wouldn't -- he wouldn't qualify for the --
04-1477 +++$+++ 18804 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
04-1477 +++$+++ 18805 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- for the additional law. But again -- and it seems to me that just demonstrates the wisdom of Justice Brandeis' reference to the small laboratories because what we -- what we have here are a raft of different approaches that the States take to give either more or less notice so long as you satisfy the constitutional minimum. The problem --
04-1477 +++$+++ 18806 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, counsel, one thing you did -- your client did was provide notice by publication in a local newspaper.
04-1477 +++$+++ 18807 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Mr. Chief Justice.
04-1477 +++$+++ 18808 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why do you bother doing that?
04-1477 +++$+++ 18809 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in part because we -- we're putting out a notice to the public that we're selling the property. So it serves two purposes. It notifies that there's a sale to take place. It also identifies the landowner, giving -- or the property owner one more opportunity --
04-1477 +++$+++ 18810 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't -- you don't rely on that as in any way discharging your constitutional obligation to provide notice to the -- to the homeowner.
04-1477 +++$+++ 18811 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ On its own, it clearly wouldn't suffice. The Court has decided that a long time -- I mean, that is Mullane. But I think as an -- as an additional component, if you -- if you really want to get into the totality of the circumstances rather than what I think is the better rule, which is to say, as you evaluate what we did, was it reasonably calculated to provide notice, and conclude, yes, it was reasonably calculated to provide notice under this Court's rulings that mailing is an appropriate way to proceed, I think we would win there. If you go beyond that and say, well, no, you have to do something-plus, if you go down the reasonably diligent efforts kind of an approach, I would say then don't go any further than say that you're required to publish the fact of the sale itself because to go beyond that is -- is to open this. And -- and we've already seen this --
04-1477 +++$+++ 18812 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ See what you think of this. If in fact the letter --
04-1477 +++$+++ 18813 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What would you think of a rule that said --
04-1477 +++$+++ 18814 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry.
04-1477 +++$+++ 18815 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What would you think of a rule that said if you use certified mail and it returns uncollected, the additional step you must take, you just send ordinary mail?
04-1477 +++$+++ 18816 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think if the Court were to say the -- the additional step you must take is to send ordinary mail, we could probably live with that kind of a rule. The problem is, one, that's not the standard that's been proposed here. Their standard is going to be and if it turns out that you find out after that that that didn't get delivered, then you have to go through this litany. You have to -- you have to engage in posting. You have to contact the occupant and contact the relatives, contact their employers, retain a skip tracing service, use the telephone directory, run a credit check, although we don't have Social Security numbers, do an Internet search. And each time when it comes back that there's some indication that you didn't -- that they didn't receive notice, which they'll always say is because -- otherwise for -- for a property that is valuable, if I had received notice, I would have shown up. You have an ongoing, continuing obligation to find --
04-1477 +++$+++ 18817 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but skip that. What about -- you know, I was thinking precisely the same, but just with slight -- if you get the letter back and you don't have the FedEx rule, you either have to have the FedEx rule or send a letter.
04-1477 +++$+++ 18818 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It sounds like you're legislating, Justice Breyer.
04-1477 +++$+++ 18819 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, because the purpose is to get reasonably calculated to get notice, and in the world today, there are an awful lot of houses where nobody is home, you know, and there's no convenient way for them to go to the post office without giving up a certain amount of work. And so they say, forget it. If it comes from the lands division or something, who cares? Now, that -- I don't know how you'd know how many there are like that, but it's a question of reasonable calculation now to get the mail through.
04-1477 +++$+++ 18820 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it seems to me, Justice Breyer, you're adopting a rule that's designed to protect a very, very tiny minority and to impose a burden, a significant burden, on every State.
04-1477 +++$+++ 18821 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it a tiny minority --
04-1477 +++$+++ 18822 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm not even sure it protects that minority. I think there are a lot of people who won't be home when the -- when the postman comes with the -- with the registered letter, but there are very few who -- who won't take the trouble to -- to pick it up. I mean, it may be --
04-1477 +++$+++ 18823 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and the flip side of that is there's nothing that indicates why even -- even the person -- if somebody is unwilling to go -- to take the time to find out what the Commissioner of Lands in the State has sent a certified letter for, why is it -- why would you assume that whenever the letter comes in when it's addressed to Mr. Jones, that Mrs. Jones isn't going to toss it aside just as quickly?
04-1477 +++$+++ 18824 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can --
04-1477 +++$+++ 18825 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's no -- there's nothing that indicates one way or the other what -- what is a preferable system to operate. And that's why I think this is intensely a legislative judgement.
04-1477 +++$+++ 18826 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But isn't there a second purpose for -- for sending it certified mail? And that is, it assures that it doesn't get lost. I think they track it closer. They can tell you where the letter is. I think each post office has to record that they've received it and so forth.
04-1477 +++$+++ 18827 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They do. That -- that's --
04-1477 +++$+++ 18828 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Whereas if you just sent it regular mail, it may have been lost.
04-1477 +++$+++ 18829 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. That -- that's always --
04-1477 +++$+++ 18830 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ This -- this assures that it reaches the destination.
04-1477 +++$+++ 18831 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. That --
04-1477 +++$+++ 18832 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose -- suppose we had a case where the homeowner has kept the Lands Commissioner informed of her current address, does everything she was supposed to do except at the time this notice, certified mail notice -- at the time of the delivery attempt, she's hospitalized having a quadruple bypass, so she never gets it. And then what -- what are the consequences of that?
04-1477 +++$+++ 18833 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I mean, I don't want -- I don't want to fight the hypothetical, but you have to put a little in context in a case like this because the process here is one that's fairly protracted. You get the first notice and then there's not -- there's no actual sale for 2 years. And in this case, the sale didn't take place, so there was -- you know, the auction didn't lead to anything, and then there was another -- another sale. So we're talking about essentially a 3-year period of time when the person has to be incapacitated, during which presumably -- and there have been multiple, six different efforts to try to send notice to her. So it's, you know, one, not a particularly likely hypothetical. I realize I shouldn't fight it. But two, I think at the end of the day, the answer is you can't put the burden on the State to understand the -- the precise situation of each of the individual homeowners, that they have some duties because they know, one, they do owe taxes; two, in Arkansas they should know that they owe us a duty to keep us up-to-date with respect to their situation, and where -- and where it is that we can reach them. And so it's reasonable to impose those duties --
04-1477 +++$+++ 18834 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But your --
04-1477 +++$+++ 18835 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- because in the vast majority of cases -- I'm sorry -- due process will be satisfied because notice will, in fact, be received.
04-1477 +++$+++ 18836 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But your -- your position is, though, when you get the certified letter returned is you have no obligation to do anything further.
04-1477 +++$+++ 18837 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, because -- because the difficulty is once you go past that, what -- what obligation you have becomes completely unknowable at that stage.
04-1477 +++$+++ 18838 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it seems to me that even you might not have an obligation, it seemed to me you would have a motivation to do more because you want to collect your taxes.
04-1477 +++$+++ 18839 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, and that's -- that --
04-1477 +++$+++ 18840 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which is sort of puzzling to me as why the States don't have a -- an affirmative interest in providing the best notice that they can.
04-1477 +++$+++ 18841 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, the truth is most of them -- we do. And -- and this is not a -- and -- and look at the way the system operates here. It's not like we -- we sent out this notice, got back, and raced off to sell the property with a gotcha in hand. I mean, we -- we went through a very protracted process each time trying to get this person to -- to show up. I mean, put this into a certain amount of context. And again, you have to deal with the generality of cases rather than this one, but I mean, this is a property that's got a tax lien on it already for unpaid income taxes of -- of approximately, I think, about $14,000, and then it has unpaid property taxes, you know, up to the -- up to the total amount of $200. And you know, under those circumstances, we let it sit there for years. I mean, there's no question we would be better served if -- if they would have shown up and just paid off the taxes. But it seems to me that all goes into the calculation of what's the right answer as a legislative matter, and legislatures have made pretty reasonable adjustments in terms of, you know, how strong is -- I mean, I think what Arkansas did here. If this is your homestead, we're going to go just as far as you said, Justice Stevens, to try to make sure we get the information to you.
04-1477 +++$+++ 18842 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is it of any --
04-1477 +++$+++ 18843 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If it's not, then we're not -- I'm sorry.
04-1477 +++$+++ 18844 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is it of any relevance to consider the burden or the obligations this rule that petitioners advocate place on downstream purchasers?
04-1477 +++$+++ 18845 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, I think absolutely because it's significantly undermines the State's overall effort in trying to get its money back because it's all well and good to say we can sell the property, but if nobody is going to pay for the property anything that comes close to the value of even getting our liens paid off, then we're not going to get the revenue stream that we would otherwise be entitled to. And even if you, you know, go through the -- through the kind of machinations of --
04-1477 +++$+++ 18846 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, you would get the whole -- you'd just get a little bit less because the cost of notice is borne by the purchaser and if they have to do a Google search or use one of these other services, it's going to add a little bit more to their cost, and you're just going to get a little bit less. It's not going to interfere with the administration of the program.
04-1477 +++$+++ 18847 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That assumes that there's a -- that there's a purchaser that wants to undertake the burden and -- and to assume that risk.
04-1477 +++$+++ 18848 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ For getting the property --
04-1477 +++$+++ 18849 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, we couldn't sell this the first time out.
04-1477 +++$+++ 18850 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- for getting the property in this case, we're at 20 percent of its market value. It's -- it's worth another $500 to you.
04-1477 +++$+++ 18851 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Mr. Chief Justice, it's worth taking at least 2 seconds to focus on the market value argument here, this $80,000 number. That was a number that arises in connection with the supersedeas bond, and it's only a number that came forward by the private loan -- property purchaser, not the State. And the reason was, was because they said, if you don't put up an $80,000 bond, we want to take over the property immediately. And so they had every incentive to say a number that was significantly higher than what the value of this property is. The best evidence of what the value of this property is is around the $20,000 that a real purchaser put on the table in order to purchase it. The point here --
04-1477 +++$+++ 18852 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no, no. That's -- Mr. Phillips, property bought at -- at delinquent tax sales is usually bought at far less than its market value.
04-1477 +++$+++ 18853 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'd be willing to stipulate to that, Mr. Chief Justice, but the truth is nobody showed up even for an auction on this property. So we don't have much in the way of evidence as to the value of it. And all I'm saying is the suggestion of -- of $80,000 as the relevant number here is a number that's picked out of the air for a purpose that has nothing to do with fair market value. It has to do with the value of a -- of a bond that would have to be issued in order to stop the transfer of possession of the property in the ejectment action.
04-1477 +++$+++ 18854 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Your -- your friend said that the $80,000 comes from the fact that it -- at the -- at the auction, it -- the opening bid is one-quarter of the fair market value. He said something like that.
04-1477 +++$+++ 18855 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it has to be -- I think it has to be a minimum that, but you know, it could be 100 percent of the fair market value.
04-1477 +++$+++ 18856 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well -- well, was the opening bid $20,000? So it was at least one-quarter of the --
04-1477 +++$+++ 18857 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, but it could also be 100 percent.
04-1477 +++$+++ 18858 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I see.
04-1477 +++$+++ 18859 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So you don't know. And -- and in his brief, his argument was that we -- that there was a stipulation to the $80,000.
04-1477 +++$+++ 18860 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the $20,000 would have been a permissible bid even if the market value was $40,000.
04-1477 +++$+++ 18861 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly. That -- that's the only point I was trying to make on that score.
04-1477 +++$+++ 18862 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would your argument be any different if there weren't a statutory obligation to keep the government informed of the -- of one's mailing address?
04-1477 +++$+++ 18863 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think I would still make the same argument. I just think the argument has extraordinary force when the -- when the petitioner has an obligation to provide us with notice because, again, it goes -- you know, why is this reasonably calculated? It's -- it's in the context of a scheme that says you will provide us specific information and we will rely upon that as the mechanism by which we inform you of your obligations to us and that under those circumstances and only those circumstances, do you forfeit your property rights.
04-1477 +++$+++ 18864 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it seems to me unrealistic to assume that the average citizen would know that duty more clearly than he'd know the duty to pay his taxes.
04-1477 +++$+++ 18865 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the only reason he would know that duty is because every -- every property tax form has on it a change of address at the very bottom of it that's perforated. So every time you get a tax form, you get a thing that says change your -- let me know if you've changed your address.
04-1477 +++$+++ 18866 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there a provision of Arkansas law that if in fact they do track down the property owner and he is at an address different from the last address that he had given, that the expense of tracking him down may be charged to him, along with the delinquent taxes, penalties, and so on?
04-1477 +++$+++ 18867 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the statute talks about costs, but the State has never interpreted that term to mean just sort of the out-of-pocket -- those kinds of inchoate costs, and they usually talk about very specific costs like the cost of noticing publication and other -- you know, other items that you can -- you know, where you have a receipt.
04-1477 +++$+++ 18868 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So in practice the answer is no?
04-1477 +++$+++ 18869 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In practice the answer is no. If there are no other questions, Your Honors, I urge the Court to affirm.
04-1477 +++$+++ 18870 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Phillips. Mr. Feldman.
04-1477 +++$+++ 18872 +++$+++ FALSE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The notice that was provided in this case satisfies the Mullane reasonably calculated test. First, the State sent it by certified mail. Certified mail -- actually in response to a question that came up earlier, the form -- when certified mail is -- is delivered and the recipient is not there, they leave a form 3849. That form isn't in the record, but I think it's probably available from any post office. On the reverse side, it says, we will redeliver or your agent can pick up your mail at the post office, and it has a place for the person to check off a box saying to redeliver and leaves instructions to leave this where the postman can find it.
04-1477 +++$+++ 18873 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but redeliver -- you have to be there to sign for it again.
04-1477 +++$+++ 18874 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, but they --
04-1477 +++$+++ 18875 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Well, then -- then the problem --
04-1477 +++$+++ 18876 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They do need a signature.
04-1477 +++$+++ 18877 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I'm thinking -- what I'm thinking is that where -- where you're trying to reach a person, the means has to be reasonably calculated. I'm simply saying a means today is not reasonably calculated to reach the average person unless it gives him the choice of getting it when he's not home. All right? Now, there are two ways that could happen. One, you could modify that form or, second, the simple rule would be if it comes back undelivered, mail them a letter.
04-1477 +++$+++ 18878 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Court -- I believe that certified mail is -- is a more reliable method than first class mail because it requires the mailperson, the carrier, to get to -- get a signature at -- at -- he has to go from a particular person. He can't deliver it to the wrong place. Also, the post office itself has means whereby the carrier has to keep track of how many receipts he's supposed to have, whether he's brought them back and so on.
04-1477 +++$+++ 18879 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I didn't say all that.
04-1477 +++$+++ 18880 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
04-1477 +++$+++ 18881 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I said do either. What I -- what I was thinking of, which isn't clearly I think coming across, is send it certified mail, by all means. Fine. He either has to sign and say, leave it off tomorrow, I'm not home, or if the post office doesn't make that available, then if the letter comes back undelivered, the person who's trying to send him notice has to send him an ordinary letter.
04-1477 +++$+++ 18882 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And if the Court were to adopt that rule, it would give States an enormous incentive and people giving notice to just send things by first class mail in the first instance, which this Court has repeatedly said and has -- has said is -- is sufficient to satisfy due process, including in cases involving tax sales in the Mennonite case, condemnation of property in the -- in the City of New York case, and similar kinds of events. Certified -- what the State did here, though, it has always -- it has generally been thought that certified mail is a more reliable means of giving people notice, and that's what the State used here. And I don't -- I don't take petitioner to be arguing that they made a mistake because they used certified mail rather than First class mail. Having said that, the State also sent the mail to the only address, probably the only address anywhere in the public record. What it needed was something that tied this person to this address, not to somebody named Gary Jones somewhere in the State or the world. And probably the only thing in the --
04-1477 +++$+++ 18883 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, none of this would have been sufficient if we were talking about your -- your client, the IRS. They do far more extensive effort to find the individual before they sell property for delinquent taxes.
04-1477 +++$+++ 18884 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I say they -- they do slightly more. What the IRS does do is there is a requirement and Congress can provide and other States can provide that more resources should be spent in something like this than the minimum due process floor. But what they've provided is that where the property owner is in the IRS district, then -- then personal service is what they first attempt. Where the -- where the property owner is not in the Internal Revenue district, then they do exactly what the State did, which is they send it via certified mail. And they check up -- I think they check a postal database of change of address forms. But we know in this case that there was no change of address form because when the letter came back, it didn't come back saying, moved, here's the new address or -- or change of address form expired. In any event, this was probably the only thing in the public record that tied this taxpayer to this property, and that's what the State used. And then it further used publication and sent another notice. There was a total of six different times when the mail carrier attempted to -- to deliver it and, if he followed the postal regulations -- there's no reason to think he didn't -- left a notice on the door.
04-1477 +++$+++ 18885 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, which way is that -- I mean, the fact that he tried six times and he wasn't there should have told the State this isn't working.
04-1477 +++$+++ 18886 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, right, but the State under the Dusenbery case is not obligated to provide actual notice. The State is obligated to provide notice reasonably calculated to let the person know what's going on, and if the person is not responding to a notice from the Commissioner of State Lands and going to the post office to pick it up or asking for it to be redelivered, I don't think this Court has ever suggested that in those circumstances, the notice is -- is inappropriate because the -- the landowner hasn't taken the steps that he should have taken to -- to, in fact, I think a -- a large part of what petitioner's argument here is, is really at bottom an attack on Dusenbery. Dusenbery said -- the Court held actual notice is not required. What's required is just notice reasonably calculated to reach someone. But under petitioner's rule here, the State, as soon as it finds out some doubt -- and that's all it had here -- some doubt about whether it had the right address because it may well have had the correct address and he didn't go to the post office to pick it up. As soon as it had some doubt about whether it had the right address, it has to take unspecified further steps to send it out again to another address, and if that doesn't work, presumably another address and another address. And each -- whatever method, whether it's a directory or the Internet or whatever method it uses, it's -- it's going to create a litigable issue about whether did it do the right thing, did it use the right Internet service, did it use the right telephone directory, did it go in a wide enough area, should it have done the whole country.
04-1477 +++$+++ 18887 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but your position is they don't have to do anything.
04-1477 +++$+++ 18888 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, our position is that the standard is if it was reasonably calculated to provide notice at the time it was sent, which in this case it was -- they used the only address in the public record that ties him to this property, and their belief that they had the right address was supported by the State law that said he has to provide them with a change of address. That under those circumstances, they've done enough, and if it comes back and just says, well, he didn't pick it up at the post office, then that's -- then they've satisfied the rudimentary --
04-1477 +++$+++ 18889 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, Mullane said that we look to what a person who really wanted to find the person would do. A person who really wanted to find Mr. Jones and got the certified letter back saying, nobody is claiming this, would have done something more.
04-1477 +++$+++ 18890 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I don't think that that's necessarily true. And -- and Mullane also said that what the -- whoever it was who had to provide the notice in that case had to do was provide notice to the addresses. The addresses were at hand was the phrase that it used. And in other cases, the Court has talked about the line between publication notice, on the one hand, and notice by mail. That line is a line of addresses that are very easily ascertainable. If they're very easily ascertainable, you have to send the mail. If not, then that's what publication notice is for. And it seems to me in this case, when the notice came back unclaimed, then the State was entitled to assume that either it had provided notice and he just didn't want to pick it up or, at worst, that his address was no longer very easily ascertainable, and at that point his obligation was only to publish notice, which it did.
04-1477 +++$+++ 18891 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which -- which you agree does no good at all. Right?
04-1477 +++$+++ 18892 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't agree it does no good at all. I --
04-1477 +++$+++ 18893 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When is the last time you read legal notices in a newspaper?
04-1477 +++$+++ 18894 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't ordinarily do it. (Laughter.)
04-1477 +++$+++ 18895 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Have you ever done it?
04-1477 +++$+++ 18896 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I can't recall.
04-1477 +++$+++ 18897 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. (Laughter.)
04-1477 +++$+++ 18898 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I --
04-1477 +++$+++ 18899 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think a lot of people who buy property at tax sales do read those notices regularly.
04-1477 +++$+++ 18900 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What I was going to say is I think that every year, I'm confident that there's home -- there's people throughout the country probably who are notified of -- of tax sales and things like that because someone sees it, someone lets them know. They're keeping an eye on that to see what's happening to their property. He had left his property without leaving a change of address form with the State, and it -- it is possible. Now, notice by publication is not preferred, but what -- the line that's drawn in Mullane and the Court's other cases are where the address is very easily ascertainable or readily available or at hand versus where it's not. And unless the Court is going to say, well, that line has to be -- it's going to overrule cases that -- that have actually drawn that line, such as Mullane itself that permitted publication notice to some people, then I think the result follows here that when the notice came back unclaimed, that was -- the State was permitted to go ahead with the sale.
04-1477 +++$+++ 18901 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But Mullane, as Mr. Kirkpatrick pointed out, involved masses of people. This was a common trust fund, and the reliance was on that a goodly number of them would get notice and they were kind of stand-ins for the ones who didn't. But here, we're dealing with a single individual.
04-1477 +++$+++ 18902 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. That's true, but the Court has also permitted notice by publication where other -- I mean, it has always drawn the line of notice of publication versus notice by mail at where the address is very easily ascertainable. But I would say that what -- the government's interest, the most important interest here, is in knowing what it's supposed to do. If you -- if there's an open-ended standard that says, well, it just has to keep doing something, then either it's -- well, then the result of that predictably is going to be the government is going to never be able to be satisfied unless it gives in-hand notice or --
04-1477 +++$+++ 18903 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why isn't -- why isn't the simple answer to that concern to say, look, there's no way to tell in advance or, you know, by any general rule, at least not legislatively, how far they've got to go to try to find the correct address, but they know where the house is and they've got at that point to go to the house and put a notice on the door? That's simple, easy. Why -- why isn't that the answer?
04-1477 +++$+++ 18904 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ May I respond to that?
04-1477 +++$+++ 18905 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Sure.
04-1477 +++$+++ 18906 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I just have two quick things. One is in the Greene against Lindsey case and -- I can't remember the name of the other case. In the Greene against Lindsey case, the Court said that -- that kind of notice has its own problems. The IRS and State authorities have had problems with posting notice in cases where the owners are not often happy to see agents from the government trying to collect taxes. That can actually be rather expensive. And the Arkansas Supreme Court itself said that the State itself frequently doesn't have the address for the property. It has only the legal description and it would be a significant burden to find it.
04-1477 +++$+++ 18907 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Feldman. Mr. Kirkpatrick, you have 4 minutes remaining.
04-1477 +++$+++ 18909 +++$+++ FALSE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. First, I'd just like to point out that it absolutely is in the State's interest to provide the best notice practicable for three reasons. First, redemption of property by the owner is the most efficient and cost effective means for the State to collect the back taxes. Second, the State has an interest in protecting its citizens from a loss of assets in equity, like what was lost by Mr. Jones here. And third, if notice is received because of follow-up efforts or if the State can show that it has made follow-up efforts, then it will not face challenges based on inadequate notice. In terms of the feasibility of doing something more, the question was raised about other States. Certainly many States do more. We've listed about five or six States that actually have a statutory scheme that deals with what happens when initial mailed notice comes back. And in footnote 9 and footnote 10 of the reply brief, we indicate States that require posting and States that require notice to occupants. Justice Souter, with regard to your question about the cost of tracking down a better address or providing notice, those costs can be passed on to the redeemer or purchaser of the property. And if we look at the statute dealing with notice to homestead owners, it says that where the mail does not work, the additional cost of the notice by personal service of process will be paid by the owner of the homestead who redeems. So certainly they could pass along those costs. They could pass along the costs of searching for a better address just like we do in the Freedom of Information Act context when we charge for Government employee time to search for records.
04-1477 +++$+++ 18910 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ With -- with respect to the fact that your client did not alert the State to its change of address, is there anything in the record about whether that his separation was permanent or is that a gradual thing? I mean, did he not know if this was a permanent change of address or what?
04-1477 +++$+++ 18911 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's nothing in the record about that, Your Honor, but certainly when he first moved out, he did not know what the future would hold in terms of the length of that separation. Now, it -- it is also not in the record, but he did, in fact, file a change of address form, a forwarding form, but it had long expired before these certified letters came. That was actually a mistake on the part of the letter carrier not to say, forwarding order expired. And while a forwarding order is only good for 18 months, there is the national change of address database which reveals those things for a period of 4 years. So that's something else the State could have checked. Also, this is not an attack on Dusenbery. This would be Dusenbery all over again if Mrs. Jones had signed for the letter and the State had gotten back the green card saying that letter was received by somebody at 717 North Bryan Street. Then it would be Dusenbery. This is not Dusenbery because the difference is in Dusenbery they knew that the letter was actually received at the facility where Mr. Dusenbery was incarcerated. Here, the State actually knew that the letter had never been received. With regard to value of the property, that $80,000 figure is not picked out of the air. It's true, as Mr. Phillips said, that the parties stipulated that that was the market value of the property, but in fact, by statute -- and that's Arkansas Code Annotated section 26-26-303 -- the assessed value of property cannot exceed 20 percent of the market value. The minimum bid was the assessed value, plus the interest, plus the penalties, plus the costs of notice. Ms. Flowers, in her negotiated purchase offer, made the minimum bid plus $200. With regard to the fact that the letter came back unclaimed, I'd just like to point out that it -- I see my time is up.
04-1477 +++$+++ 18912 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You may finish.
04-1477 +++$+++ 18913 +++$+++ TRUE +++$+++ MR. KIRKPATRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That it was not marked refused. So it did not indicate that somebody saw the letter and didn't want to take it.
04-1477 +++$+++ 18914 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
04-1495 +++$+++ 18918 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument now in 04-1495, Hartman against Moore. Mr. Kneedler, whenever you're ready, you may proceed.
04-1495 +++$+++ 18920 +++$+++ FALSE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: Respondent alleges in this Bivens action that petitioners, who were postal inspectors, caused him to be prosecuted in retaliation for activity protected by the First Amendment. In order to make out such a claim, however, respondent must establish that there was no probable cause for the prosecution. That is so for three mutually reinforcing reasons. First, that requirement accords with the deference this Court has consistently held in Armstrong and other cases must be given to the prosecutorial function because that function is core to the executive branch's operations and because prosecutorial decision-making is ill-suited to judicial second guessing. Second, that rule accords a -- an important objective screen and check against claims of retaliatory prosecution in order to guard against the chilling effect that would otherwise routinely arise from inquiry into the subjective motivations of those involved in the prosecutorial decisionmaking process. And third, that rule is deeply rooted in history. A claim of First Amendment retaliatory prosecution is but one species of a claim of malicious prosecution, and it has long been required that an essential element of a claim of malicious prosecution is that the plaintiff show an absence of probable cause for the prosecution.
04-1495 +++$+++ 18921 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm -- I'm not sure why -- why we should make the classification that you did, that -- that retaliatory is simply a species of -- of malicious. I mean, I -- I can see the similarities, but we've also got an entirely separate First Amendment value here which just is not part of the -- the analytical mix when you're talking about malicious prosecution. So I'm not sure why we should -- we -- we should classify it as you argue.
04-1495 +++$+++ 18922 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- for several reasons. First of all, the -- the First Amendment -- the alleged First Amendment retaliation describes the malice, a form of the malice that would arise in --
04-1495 +++$+++ 18923 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it's -- it's a peculiar, if you will, a peculiar malice with its own set of constitutional values, and I don't know of anything comparable in -- in malicious prosecution generically.
04-1495 +++$+++ 18924 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, to be sure, what renders it malice or wrongful is the First Amendment, but -- but the derivation of -- of the reason for why it's wrongful does not, I think, detract from the essential relevance of the tort of malicious prosecution. And if -- if I may add to that, the -- the reason why the -- the tort of malicious prosecution is highly relevant here is not simply because on the malice side of it, but also because it has long been recognized, beginning with Blackstone before the First Amendment and the Constitution were even adopted, that there are critical interests on the other side, not simply the defendant's interest in avoiding badly motivated prosecutions, but the important countervailing public interest of ensuring that wrongdoers are brought to justice and that those who have information about it will come forward. And -- and that was recognized by Blackstone early on and has been recognized consistent -- consistently by this Court in -- in many, many decisions, including recent cases of this Court involving immunity issues, which is what we have here, specifically recognizing that the tort of malicious prosecution is very instructive in deciding how rules should be applied when a Bivens action or a 1983 action is brought in the specific context of prosecution.
04-1495 +++$+++ 18925 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, of course, here --
04-1495 +++$+++ 18926 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose there is probable cause for a prosecution, but the prosecutors are extremely busy and they -- they have to select their cases and they select one in which they bring the prosecution against the defendant on account of his speech. Is that a violation of the prosecutorial duty?
04-1495 +++$+++ 18927 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in -- in terms -- in terms of the responsibilities of the prosecutor, there --
04-1495 +++$+++ 18928 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1495 +++$+++ 18929 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that -- that should not -- that should not be a -- a selection criterion in itself, but it --
04-1495 +++$+++ 18930 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm -- I'm asking is it a violation of the prosecutor's professional obligations and his professional duties?
04-1495 +++$+++ 18931 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I would think ordinarily yes, but with this caveat. Unlike race which is never relevant to the prosecutorial decision-making process, there can often be a prosecution -- and this case is one of them -- in which you might have claims of public corruption. And -- and in fact, there was a guilty plea here on the part of a member of the Postal Service board of directors for receiving payments to -- for his activity on behalf of respondent's corporation and others. This -- this -- involving contracts for $250 million. This was a very, very important procurement by the Post Office Department and it is understandable that in connection with that prosecution, the prosecutors and the Postal Service investigators would look into issues of respondent's, or people in his behalf, approaching the Government.
04-1495 +++$+++ 18932 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Just going back to the hypothetical, if -- if you acknowledge -- and I think you must -- that there's a violation of the prosecutorial duty in -- in the instance I suppose, then why shouldn't the law recognize it and -- and give force to that sanction and give force to that rule?
04-1495 +++$+++ 18933 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there -- there are certain restrictions -- certainly restrictions on what the prosecutor may do, but several points about that. First of all, this is not a Bivens action against the prosecutor. The prosecutor is absolutely immune from suit. The prosecutor's decision-making process is -- is, in fact, as is the grand jury's, a -- a critical protection against malicious prosecution --
04-1495 +++$+++ 18934 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Well, then we'll just change the hypothetical to make it the investigators. The investigators select their case based on this speech that they consider unwelcome.
04-1495 +++$+++ 18935 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- the question is whether in that circumstance the -- the Bivens plaintiff, the criminal defendant, has a First Amendment right to be excused from prosecution or, after the prosecution is unsuccessful, to bring a civil action, whether he has a right not to have been prosecuted in those circumstances notwithstanding the existence of probable cause and the independent judgment by the prosecutor.
04-1495 +++$+++ 18936 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, does he have a right not to be singled out because of his speech?
04-1495 +++$+++ 18937 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He does -- he does not have a -- he does not have a First Amendment claim in those circumstances where there is probable cause for the violation. The --
04-1495 +++$+++ 18938 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I asked does he have a right not to be singled out because of his speech.
04-1495 +++$+++ 18939 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He does not have a First Amendment right not to be singled out in those circumstances.
04-1495 +++$+++ 18940 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In other words, you -- you would advise law enforcement officials that they can single out persons for prosecution based on distasteful speech.
04-1495 +++$+++ 18941 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would not. I -- I'm not -- I'm not endorsing the motivation. What I'm -- what I'm saying is what is --
04-1495 +++$+++ 18942 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What I want you to do is to agree. I -- I think you have to concede there is this principle in the law, and I think your answer has to be even though there's that principle, there's a lot of problems with enforcing it because there are going to be too many suits, it's hard to -- it's difficult for the Government to defend, and -- and so forth and so on.
04-1495 +++$+++ 18943 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. I -- I'm not disputing that it -- that -- that a -- a prosecution should not be brought or should not be heard --
04-1495 +++$+++ 18944 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you're not disputing either, as I understand it. As the case comes to us, we assume the prosecution would not have been brought but for the retaliatory motive.
04-1495 +++$+++ 18945 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- it is -- we certainly disagree with that with our proposition.
04-1495 +++$+++ 18946 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But don't you assume that for the purposes of your argument?
04-1495 +++$+++ 18947 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For -- for purposes of our probable -- probable cause claim, yes.
04-1495 +++$+++ 18948 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's the only argument.
04-1495 +++$+++ 18949 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that is true, but that, of course, was also true at common law for -- for malicious prosecution.
04-1495 +++$+++ 18950 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the -- one of the differences -- am I not correct, that at common law the prosecutor did not have absolute immunity?
04-1495 +++$+++ 18951 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At common law -- at common law, yes. As this Court has recognized in reformulating the common law principles of -- of immunity, the -- the public prosecutor now has absolute immunity under -- under these --
04-1495 +++$+++ 18952 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now does, but not at common law.
04-1495 +++$+++ 18953 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- under these Court's -- under this Court's decisions. But at common law, the prosecutor did have the protection of malicious prosecution, and as Justice Scalia observed in his concurring opinion in the Kalina decision, the elements of the tort of prosecution essentially had a built-in qualified immunity, and the probable cause requirement was essentially that. It afforded protection for the prosecutor. The -- the private citizen who -- who -- the complaining witness -- he could not be the subject of a suit for damages if -- if the charges were dismissed, not simply upon a showing -- it required more than simply a showing of malice. It required a showing of an absence of probable cause for reasons that are essentially identical to the qualified immunity and absolute immunity -- the -- the reasons for qualified and absolute immunity.
04-1495 +++$+++ 18954 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. --
04-1495 +++$+++ 18955 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, they're not totally identical because you didn't have the First Amendment interest involved in those cases, whereas you do have a First Amendment interest at stake here.
04-1495 +++$+++ 18956 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But -- but on -- on the -- on the governmental interest side of the balance, the interests are exactly the same in both -- in both circumstances. And that is not to chill -- not -- not to create circumstances where people would hold back from coming forward with information of violations of the law because of fear that they would be sued and retaliated against afterward. And that hasn't changed now that we have public prosecutors. It's still critical.
04-1495 +++$+++ 18957 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Kneedler, may -- would you clarify just one point about this probable cause? There was a grand jury that indicted this man, and then there was a trial judge who said, I'm throwing this out at the close of the Government's case. There is not enough evidence here to convict this man. Are you saying that as long as the grand jury indicts, there can be no Bivens claim because in order to indict, the grand jury would have had to find probable cause?
04-1495 +++$+++ 18958 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, at -- at common law on the tort of malicious prosecution, the indictment created a presumption because an indictment does have to depend upon probable cause, and under the -- under this Court's decision in Gerstein v. Pugh and other decisions, that can't be reexamined by the court in the prosecution. But at common law, the -- the indictment created a presumption that was subject to rebuttal by the -- by the civil plaintiff. There was some disagreement about what would be necessary, whether you would have to show fraud on the grand jury or whether you could just retry --
04-1495 +++$+++ 18959 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, tell me about now, not at the common law.
04-1495 +++$+++ 18960 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. We do not -- we do not think that the existence of the grand -- it has not been our position that the existence of the indictment is dispositive and cannot be challenged, but we do think it --
04-1495 +++$+++ 18961 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the grand jury did find probable cause. So what would the plaintiff have to show to overcome -- to -- to negate that finding of probable cause?
04-1495 +++$+++ 18962 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We -- we think in a -- in a -- it would have to show by at least a preponderance of the evidence, maybe a clear showing, that there was not probable cause. And I think that also ties in to the -- to the standard for qualified immunity, which is could a reasonable person in those circumstances have believed that there was probable cause. I think, if the grand jury returns an indictment, that that should be pretty persuasive evidence but not compelling evidence -- I mean, not dispositive evidence that there was probable cause.
04-1495 +++$+++ 18963 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ The case that comes closest, as far as I can see, is probably United States v. Armstrong, and in that case, this Court said in the ordinary case, so long as the prosecutor has probable cause to believe the offense was committed, the decision to prosecute or go before a grand jury rests entirely in his discretion. But, of course, the discretion is subject to constitutional constraints, the equal protection component of the Due Process Clause. The decision whether to prosecute may not be based on an unjustifiable standard such as race, religion, or other arbitrary classification. And the standard the Court articulated there was the defendant must present clear evidence --
04-1495 +++$+++ 18964 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, clear evidence, and the Court stressed that it was a --
04-1495 +++$+++ 18965 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ -- to the contrary. Now, that's different from your proposition of probable cause.
04-1495 +++$+++ 18966 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I think several things may explain that. In Armstrong, that was a claim of selective prosecution that was brought --
04-1495 +++$+++ 18967 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Based on race.
04-1495 +++$+++ 18968 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Based on race. That was one of the distinctions I was going to point to. And secondly --
04-1495 +++$+++ 18969 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ So why should that be different than the First Amendment violation?
04-1495 +++$+++ 18970 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, as -- as this Court's decision in -- in Johnson, for example, shows, there -- distinctions based on race are subject to strict scrutiny no matter what the context, in that case even in the prison context, whereas First Amendment claims often take account of the context in which they are raised. For example, this Court in the American-Arab Anti-Discrimination case held that there would -- could be no claim at all of selective prosecution in the immigration context because of the important countervailing interest in enforcing the law.
04-1495 +++$+++ 18971 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you're willing to acknowledge -- and -- and the Government concedes that you can have a different standard when the -- the basis for the selective prosecution happens to violate the Constitution from the standard you apply where the basis for the selective prosecution doesn't violate the Constitution, such as I'm prosecuting him because he was mean to my brother-in-law. Okay?
04-1495 +++$+++ 18972 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
04-1495 +++$+++ 18973 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you going to apply a different standard there than you would apply where -- where the reason is some First Amendment reason?
04-1495 +++$+++ 18974 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, no. The -- the other distinction -- and -- and I'm not sure if this goes to your point or not. The other distinction is that in Armstrong the claim was made in the criminal prosecution itself. Here, the claim is the civil action after the criminal prosecution is over with, and it's in that -- in that context especially that the analogy to malicious prosecution is very strong and why the element of -- that the person has to -- that the -- there has to have been a favorable termination for the -- for the plaintiff and there has to be a probable cause.
04-1495 +++$+++ 18975 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that doesn't --
04-1495 +++$+++ 18976 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But would you answer my question?
04-1495 +++$+++ 18977 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1495 +++$+++ 18978 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm -- I'm not sure that I -- maybe -- I guess I --
04-1495 +++$+++ 18979 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's going be a different criterion -- you -- you say it's going to be different for the First Amendment and the -- and -- and the Equal Protection Clause, at least where race is involved. What if there's no constitutional violation at all, but I just selectively prosecute him just because I don't like this guy or because he was mean to a relative of mine?
04-1495 +++$+++ 18980 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't -- I don't --
04-1495 +++$+++ 18981 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is there going to be a different standard --
04-1495 +++$+++ 18982 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. There -- there wouldn't be any -- any constitutional claim and any -- any common law --
04-1495 +++$+++ 18983 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Exactly, and would you apply a different standard because there isn't a constitutional claim?
04-1495 +++$+++ 18984 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. There wouldn't be any claim at all. I mean, there wouldn't be any basis for a claim.
04-1495 +++$+++ 18985 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- a malicious prosecution claim. You'd have a malicious prosecution claim.
04-1495 +++$+++ 18986 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There -- there -- and in the -- in the Federal sphere, if there was a malicious -- a common law malicious prosecution claim, that would have to be brought under the Federal Tort Claims Act against the United States.
04-1495 +++$+++ 18987 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, Mr. Kneedler, I understand your argument to be they should be treated just like a malicious prosecution claim, which is no distinction between a constitutional basis and a common -- and just that he hated his brother-in-law. I think you're saying they're the same. That's what I understand Justice Scalia to be asking you.
04-1495 +++$+++ 18988 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's what I'm asking.
04-1495 +++$+++ 18989 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, yes. I -- I am -- I am saying that --
04-1495 +++$+++ 18990 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which places no weight at all on the fact the Constitution is involved.
04-1495 +++$+++ 18991 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh -- oh, it does because the -- because the -- the first -- the existence of the First Amendment claim is what gives you the Bivens cause of action in the first place. So otherwise, there wouldn't be any Federal cause of action at all without -- without the First Amendment claim.
04-1495 +++$+++ 18992 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's how you'd get at least as much protection as if it was an ordinary malicious prosecution claim, but you don't get any more under your view.
04-1495 +++$+++ 18993 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, because -- and -- and again, this -- this is -- this is because of the -- of the background of the common law tort of malicious prosecution, which strikes exactly the balance that I -- that I'm talking about.
04-1495 +++$+++ 18994 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you really want three things. You say we want the protection, number one, of there -- if you're -- if there's probable cause, that's the end of it. Number two, if you're trying to show there wasn't probable cause, you have to bear clear and convincing evidence, and number three, we also have qualified immunity. And I guess, number four, you have to prove the whole thing by clear and convincing evidence.
04-1495 +++$+++ 18995 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1495 +++$+++ 18996 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It sounds a little bit like the person who has the overcoat, turns up the heat, you know, five or -- what about one?
04-1495 +++$+++ 18997 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the --
04-1495 +++$+++ 18998 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about this one? And I want to know -- you simply say you need clear and convincing evidence that that was the motive and it wouldn't have been brought otherwise. And the existence of probable cause is a strong factor, maybe even a presumption, that suggests to the contrary. Now, have States and other places tried things like that without the world collapsing?
04-1495 +++$+++ 18999 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. My understanding from -- from reading the treatises on -- on malicious prosecution, for example, that there has been no watering down of the probable cause requirement because it is understood to be a critical check against --
04-1495 +++$+++ 19000 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So as far as you know, every State and every jurisdiction where -- and investigators if they don't have absolutely immunity, whatever -- in all those jurisdictions, nobody has ever said that even a constitutional violation, if there's probable cause, that's the end of it.
04-1495 +++$+++ 19001 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'm -- I'm focusing on the tort of malicious prosecution which is --
04-1495 +++$+++ 19002 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, I'm not focusing.
04-1495 +++$+++ 19003 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- which --
04-1495 +++$+++ 19004 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I want to know --
04-1495 +++$+++ 19005 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1495 +++$+++ 19006 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- if --
04-1495 +++$+++ 19007 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not -- I'm not aware -- I'm not aware that any jurisdiction has done that. But in response to your proposal, the -- the -- what -- what's wrong with that is that it would allow extensive inquiry, discovery, other inquiry into the subjective motivations of persons involved in the decision-making process with no mechanism analogous to immunity or the -- or the probable cause criterion to weed out --
04-1495 +++$+++ 19008 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We have no experience. We don't know. Okay. As your -- as far as you can tell. The other question I have, which you might want to be brief about, is in looking through this record, as far as I could see from the briefs, they went ahead and prosecuted this man with only two pieces of evidence. The first evidence was that he tore some pages out of his notebook. But he introduced lots of notebooks to show he always tore pages out when he gave them to his secretary. And the second was that he told some witnesses be very careful and answer the question. Now, you know, he said a few other things, but they all seemed like the kind of things that people would always say to witnesses. Now, if that's the only evidence, except for the fact he owns the company, how is there probable cause here?
04-1495 +++$+++ 19009 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There -- there was much, much more evidence.
04-1495 +++$+++ 19010 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I didn't see any in the brief.
04-1495 +++$+++ 19011 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There --
04-1495 +++$+++ 19012 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I saw a lot about other people in the brief, but not about him.
04-1495 +++$+++ 19013 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, for one thing, it's absolutely conceded that there was a conspiracy. Three people pleaded guilty, including --
04-1495 +++$+++ 19014 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There are all kinds of things about other people.
04-1495 +++$+++ 19015 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, but -- but --
04-1495 +++$+++ 19016 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I didn't --
04-1495 +++$+++ 19017 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the -- it isn't all about other people. The -- the -- that crime included -- and it's accepted in this case that the Postal Service board of -- board member accepted 30 percent of the fees paid by respondent's company to the consulting firm. Respondent's company. He was the chief executive officer.
04-1495 +++$+++ 19018 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I would like you to limit yourself to what I didn't concede. I concede it's his company. I concede that he tore some pages out of his notebook, and I concede that he told -- which he did a lot of times. And I concede that he told witnesses answer the question, et cetera. Now, is there anything else connecting him, not his company?
04-1495 +++$+++ 19019 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. In -- in the summer of 1984, before there was even a consulting agreement, there was a series of conversations between Voss, the postal board -- board member, and respondent, including one for which there are notes in which Voss said I am working for you. There -- there was an -- there is an abundance of evidence involving Reedy who is -- no. I -- I know, but just in -- just in terms of -- just in terms of the sequence. There is evidence that Voss and Moore were good friends. Voss said that he had a close relationship with respondent, and when the contract was first being negotiated, Reedy acknowledged that Voss and Moore were good friends. They had a close relationship. They were not distant.
04-1495 +++$+++ 19020 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Kneedler, I know you're responding to Justice Breyer's question, but I think for purposes of our decision, we're not supposed to decide whether there was probable cause or not, but we're to give you the opportunity to prove there was if -- if you win on your --
04-1495 +++$+++ 19021 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, although I -- I certainly do not want to leave the misimpression that -- and there is -- there is much more.
04-1495 +++$+++ 19022 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that's a disputed issue, and we don't have to decide the probable cause issue. Is that not correct?
04-1495 +++$+++ 19023 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that -- you do not have -- you do not have to decide it, but I would certainly urge the Court not to proceed on the assumption or make any comments that there is because there were -- there were --
04-1495 +++$+++ 19024 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But because the other side is arguing that even if there is probable cause, the burden shifts when they prove the retaliatory motive, and you have to prove that you would never -- you made -- you would have brought the prosecution even if there had been no retaliatory motive. That's what we're arguing --
04-1495 +++$+++ 19025 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, and that is their position. And that position accords -- yes, that is their position. And that accords no particular --
04-1495 +++$+++ 19026 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the question I would ask is why should this be different from a wrongful discharge case in which there's ample cause to discharge and the issue boils down to whether or not he would have been discharged anyway. Why isn't it the same -- same situation?
04-1495 +++$+++ 19027 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What is very different is that this is the prosecutorial function. As this Court recognized in Armstrong, that is a core executive branch function and it is one that the courts are ill-suited to second-guess because a whole variety of determinations can enter into whether to prosecute somebody, whether they -- whether the particular conduct -- how culpable the person is, whether the conduct fits into the overall prosecutorial priorities, whether there will be cooperating witnesses, what -- what the office's resources are. There are a whole bunch of -- of judgments that courts are ill-suited to second-guess, and it would be very chilling if the prosecutor had to --
04-1495 +++$+++ 19028 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wouldn't -- wouldn't all those considerations justify a rule that makes the burden of proving the retaliatory motive very high, say, maybe it has to be by clear and convincing evidence or something like that? But once you have it acknowledged -- I don't know if they're really acknowledged here, but there's strong evidence of retaliatory motive -- why shouldn't the burden shift just on that, on the basis of that proof?
04-1495 +++$+++ 19029 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well -- oh, not -- we do not think there is strong evidence of retaliatory motive. And I -- I can -- can address that, but --
04-1495 +++$+++ 19030 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if you had a --
04-1495 +++$+++ 19031 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but --
04-1495 +++$+++ 19032 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- if you had a heavy burden of proof at that stage of the proceeding, wouldn't that protect the interests that mainly concern you?
04-1495 +++$+++ 19033 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We -- we think the more direct -- I don't think so for -- partly for the reason that I -- that I gave to Justice Breyer is that -- that that would not protect against discovery and -- and the sort of chilling inquiry that this Court has recognized in its immunity cases, and especially in the prosecutorial function where the prosecutor would be required to disclose. Even though the prosecutor is absolutely immune, the prosecutor's decision-making process and his communication with law enforcement agents would -- would be exposed for judicial scrutiny, public scrutiny in a way that could chill the prosecutorial function.
04-1495 +++$+++ 19034 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Kneedler, the defendant here is not the prosecutor. Right?
04-1495 +++$+++ 19035 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-1495 +++$+++ 19036 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Just someone who provided information to the prosecutor that -- that was erroneous and allegedly maliciously motivated.
04-1495 +++$+++ 19037 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think erroneous. It was allegedly maliciously motivated.
04-1495 +++$+++ 19038 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Allegedly maliciously motivated, at least. I don't understand how you would apply the test, would -- you know, would you have prosecuted anyway, when -- you know, but for the malicious motive, when the person you're -- you're suing is not the prosecutor. It wasn't up to this person whether there would be a prosecution.
04-1495 +++$+++ 19039 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's a -- I think that's a very important point, and before a -- a court enters into that, in the end, unknowable question, maybe a court can -- can, in the end, determine probabilities, but before a court undertakes that, which requires looking not simply at the motivation of the -- of the law enforcement officers, but the prosecutor and -- and who knows whether the grand jury would have returned an indictment, and yet a court certainly couldn't be expected to inquire into that. Now, so we -- we think that that's another reason why the probable cause requirement is a critical gateway before a court is -- is going to enter into that determination. And all -- and it's important to remember it's not just proving the question of causation, but these are people who are several steps removed from the -- from the prosecutorial decision. And the -- and the personal liability would be visited on the law enforcement agents who were doing their job and cooperating with the U.S. Attorney's Office. This case was -- this case got attention at the highest levels of the U.S. Attorney's Office. The U.S. Attorney personally met with the -- the respondent -- lawyers for respondent.
04-1495 +++$+++ 19040 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Kneedler, the D.C. Circuit, looking at this case, looking at the record closely, typed it one in which the evidence of retaliation was strong and probable cause weak. This is on 28a of the appendix to the petition for cert. That was the appraisal of the D.C. Circuit panel. And I think you've been arguing that that is not the case, but at least for our purposes at this posture, don't we -- shouldn't we accept that that is the picture here, weak evidence of probable cause, strong indications of retaliation?
04-1495 +++$+++ 19041 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I don't -- I don't think there's any reason to accept that because there's no factual determinations to that effect. There -- there are really just two snippets of evidence that are primarily relied upon by the court of appeals for the view that there was a retaliatory motive here. And they were -- they were really observations that the -- that the inspectors made to -- to show -- the first one was why the corporation should be indicted, not just -- not just Moore, but why the corporation should be indicted. And it was just an observation that the corporation, through its agents, was involved in a lot of activities and should be held accountable. It was not -- it was not evidence of a -- of a retaliatory motive, and there were subpoenas for -- for documents about political contributions. But let's remember that this was a case involving bribery of a public official, and it was -- it was understandable that the AUSA and the -- and the inspectors would -- would look to see whether there was money directed elsewhere. If I may, I'd like to reserve the balance of my time.
04-1495 +++$+++ 19042 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. McCartan.
04-1495 +++$+++ 19044 +++$+++ FALSE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, if it please the Court: If I may, Your Honors, I would like to start with the very pointed inquiry that Justice Kennedy made at the opening of the argument here. The petitioners here do not challenge, because they cannot challenge, as was evident from the concession made here this morning, that a criminal prosecution cannot be based upon the exercise of a constitutional right. What they want is an exception to that rule, an exception that would mean, despite the overwhelming evidence of retaliation of record in this case, there would be no violation of the First Amendment here and that would treat any prosecution based solely upon race, religion, or protected speech the same as a tort for malicious prosecution. And to accomplish this end, what they are trying to do is to force probable cause as a standard into a framework where it doesn't belong, where it won't work, and which, if done here, is going to be contrary to several existing decisions of this Court.
04-1495 +++$+++ 19045 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. McCartan, how does -- how does your standard work? The same question I asked Mr. Kneedler. The -- the test you would propose is whether but for the retaliatory motive, the prosecution would have been brought anyway?
04-1495 +++$+++ 19046 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would be the test, Your Honor, for recovery when the matter goes to trial.
04-1495 +++$+++ 19047 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
04-1495 +++$+++ 19048 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The test that I would propose is the very test that this Court set forth in Harlow against Fitzgerald because we're here really on a very limited issue of qualified immunity. We have to determine whether the defense of qualified immunity is available to the petitioners here. The standard, the proper standard for making that determination was set forth by this Court in Harlow and it's whether the conduct alleged --
04-1495 +++$+++ 19049 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, Mr. McCartan, I don't mean to interrupt you, but I thought the primary issue was not the qualified immunity issue, but whether we have a cause of action in the first place.
04-1495 +++$+++ 19050 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, whether -- no, I think that the --
04-1495 +++$+++ 19051 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And on that, they say you don't have a cause of action unless you're able to prove an absence of probable cause.
04-1495 +++$+++ 19052 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think what they are saying is the defense of qualified immunity should be available if there should be probable cause for the action that was taken here. I think the case before the Court is on the very limited issue of whether the defense of qualified immunity is available to the petitioners.
04-1495 +++$+++ 19053 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. I think they would say absolute immunity, not qualified. I -- I think they're saying if there's probable cause, the game is over. No -- no qualified --
04-1495 +++$+++ 19054 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's exactly what they're saying, and what I'm saying is that is the wrong standard to be applying.
04-1495 +++$+++ 19055 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but there are two questions in the cert petition and it's the second one that's the qualified immunity issue, and the first one is whether there's a cause of action.
04-1495 +++$+++ 19056 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right. Well, Your Honor, let -- let me -- let me back up for just a moment then with respect to that. Let me say that probable cause is not the proper standard which should be applied here. The proper standard is the standard that is set forth by this Court in Harlow and as refined later in Anderson against Creighton and a number of other decisions.
04-1495 +++$+++ 19057 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the difficulty I think we're all having with it is that the qualified immunity issue and the standard to which you are -- are adverting responds to a question that doesn't arise unless we first assume that there is -- that there is a constitutional violation.
04-1495 +++$+++ 19058 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-1495 +++$+++ 19059 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And our questions are, what is the standard for determining the constitutional violation? Once we get that squared away, then we'll get to Harlow.
04-1495 +++$+++ 19060 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The standard that is to be set forth to determine whether there is a constitutional violation is that that this Court applied in Mt. Healthy City School District against Doyle and in Crawford-El against Britton, and that is if there is illegally or unconstitutionally motivated conduct, it will not be excused simply because there may be some objectively valid basis for taking such action. That is the conceptual framework that was established in those cases and which should be applied by way of analysis.
04-1495 +++$+++ 19061 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If it is applied here, I -- I thought we just granted question one. There were two in the cert petition. I -- my notes say we just granted question one. And that means what they have is the screen. We're going to screen out absolutely any such claim as yours if there is probable cause. Now, the reason they advance for doing that is that in the -- a reason is in the absence of a screen like that, here's what's going to happen. Every single case -- not every one, but millions of cases or thousands, anyway -- involving companies -- well, companies are going to Congress all the time. They have ads all the time. They run into agency hostility all the time. The Hell's Angels? That's a pretty unpopular defendant. They say things all the time that investigators disagree with. And what will happen is in a vast number of cases the defendant will decide to bring a Bivens action, particularly if he gets off, and then we'll have discovery and we'll look into every statement that the -- the investigator made to the prosecutor, and before you know it, we have a nightmare of tort cases. And they say that's unfortunate to cut off a claim like yours, but after all, the prosecutors totally cut them off because they have absolute immunity. Now, we're saying at least let's restrict them, where investigators are involved, to cases where it turned out there was no probable cause, otherwise the criminal process itself will be seriously injured. Now, I take it that's the argument. I'd like to hear your reply.
04-1495 +++$+++ 19062 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is exactly the argument, Your Honor, and what it comes down to is whether the burdens of litigation in a situation of this kind will justify judicial alteration of the protection of the First Amendment. And I think that's been very clear from the outset in the first question Justice Kennedy asked.
04-1495 +++$+++ 19063 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, but are you going to -- I mean, is there any light you could shed? And that's why I asked in my question initially. I thought maybe there were some jurisdictions somewhere that -- that survive without the rule they want, but maybe I'm wrong. And -- and how do I judge this? I would be concerned. I don't -- the -- after all, these other cases you mentioned are civil tort cases and -- and they don't involve the criminal process. And when we get into criminal prosecutions, we have rules on selective prosecution that are designed to screen out all but the very worst.
04-1495 +++$+++ 19064 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But see --
04-1495 +++$+++ 19065 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And that's what he's arguing for here.
04-1495 +++$+++ 19066 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's what he's arguing, and those are not screening mechanisms, Your Honor. Probable cause was evident and was present in United States against Armstrong and Wayte against the United States. It was not deemed by this Court to be a bar to the selective prosecution claims that were advanced in that -- in those cases.
04-1495 +++$+++ 19067 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Leaving -- is there anything you can say before I give up on this? And maybe the answer is no. Is there anything you can say that would relieve my concern, which is completely practical at the moment, that if I decide in your favor, there suddenly are going to be large numbers of criminal cases where defendants will say the reason I was prosecuted was because of something I said? I was advocating motorcycles. I was advocating beating people up. I was advocating a congressional change of something. Many, many such cases. They'll all get at least discovery, and the prosecutor's door will become open to the world. Now, that's what's concerning. Can you say anything to relieve that concern?
04-1495 +++$+++ 19068 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I think, first of all, empirically, Your Honor, there's no evidence to the effect that Bivens has had that result after 35 years in full force and effect.
04-1495 +++$+++ 19069 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ But if this Court opens that door, don't you think we might see a different problem?
04-1495 +++$+++ 19070 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so, Justice O'Connor. I think if you examine part IV of the Court's opinion in Crawford-El, there is a very careful pattern that is set forth as to how cases of this kind should proceed and what protections are available to protect Government officials against overly burdensome litigation.
04-1495 +++$+++ 19071 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which opinion was that? I missed that.
04-1495 +++$+++ 19072 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Pardon, Your Honor?
04-1495 +++$+++ 19073 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which opinion are you talking about? I missed it -- missed it.
04-1495 +++$+++ 19074 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The opinion in Crawford-El against Britton.
04-1495 +++$+++ 19075 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-1495 +++$+++ 19076 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There, the Court held that if there are factually specific allegations that would indicate a violation of the Constitution, that at that point the court may consider whether some additional discovery should be permitted even if there should be an independently valid basis.
04-1495 +++$+++ 19077 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This wasn't addressing -- this wasn't -- didn't involve prosecution, though. It didn't involve unlawful prosecution.
04-1495 +++$+++ 19078 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It did not, Your Honor, but it provides the same --
04-1495 +++$+++ 19079 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It -- it was a suit against a prison.
04-1495 +++$+++ 19080 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It provides the same framework for the proper analysis of a claim of this kind.
04-1495 +++$+++ 19081 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but -- but we treat prosecutions quite differently. We do not give, for example, absolute immunity to the wardens of prisons as we give absolute immunity to prosecutors.
04-1495 +++$+++ 19082 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
04-1495 +++$+++ 19083 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is a specially dangerous area in which to allow litigation.
04-1495 +++$+++ 19084 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is far less dangerous, Your Honor, than when this is asserted by way of defense in the middle of an ongoing criminal prosecution. It can be far more disruptive to allege a violation of constitutional rights as a defense to a criminal prosecution, while that prosecution is in progress, and an effort is made to examine prosecutorial decision-making than in an after-the-fact, after-acquittal civil action for damages, such as we have here. You have already permitted that kind of examination in criminal cases where probable cause is present.
04-1495 +++$+++ 19085 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. McCartan, I -- I still don't entirely understand what you would want the Government to prove under your system in order to -- in order to -- to win this case. They would have to prove what? That -- that --
04-1495 +++$+++ 19086 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They would have to prove that something other than hostility to protected speech was the reason for the prosecution being advanced.
04-1495 +++$+++ 19087 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it would not be enough to show that the prosecution would have gone forward anyway.
04-1495 +++$+++ 19088 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. That's -- that's what I mean. Absent -- if there is an objectively valid basis --
04-1495 +++$+++ 19089 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-1495 +++$+++ 19090 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the Government claims there is an objectively valid basis for the action they action they would take.
04-1495 +++$+++ 19091 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
04-1495 +++$+++ 19092 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Then if the plaintiff has made a showing that there was an improper motivation, the burden shifts to the Government to show that the prosecution would have proceeded absent the illicit intent.
04-1495 +++$+++ 19093 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You see now in -- in the employment cases where -- where somebody is dismissed for a -- a racially discriminatory reason and -- and you have to prove that the same action would have been taken anyway, you ask the person who fired them with the discriminatory motive whether that person would have taken that action anyway. Whereas here, the person who brought the prosecution is not in this case. It's somebody who gave information to the prosecutor. I don't know how that person could -- could possibly establish that the prosecution would have been brought anyway. It wasn't up to him.
04-1495 +++$+++ 19094 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, as --
04-1495 +++$+++ 19095 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It had nothing to do with --
04-1495 +++$+++ 19096 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- as -- as you pointed out earlier, probable cause is not the standard that governs the investigator's conduct. These investigators procured a prosecution based upon a violation of the petitioner's -- or excuse me -- the respondent's constitutional rights.
04-1495 +++$+++ 19097 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, they did, but wouldn't you have to prove under your standard not that they would have procured or tried to procure it anyway, but that in fact the prosecutor would have prosecuted anyway? In other words, that's the distinction between the -- the normal case and -- and the case that we're dealing with here --
04-1495 +++$+++ 19098 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I --
04-1495 +++$+++ 19099 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- with a prosecutor who has absolute immunity.
04-1495 +++$+++ 19100 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the prosecutor has absolute immunity. There's a qualified immunity here with respect to the investigators, and that means that the facts and circumstances of the case are going to have to determine whether there's liability.
04-1495 +++$+++ 19101 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. All right --
04-1495 +++$+++ 19102 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The burden would shift once the illegal motivation is shown. It would shift to the Government to establish that the prosecution would have proceeded absent the illicit event.
04-1495 +++$+++ 19103 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But would it -- would it have been a complete defense? Suppose the prosecutor, who is immune, gets on the witness stand and says, well, I know all about this -- the First Amendment stuff, but I was going to bring this prosecution anyway because it seemed to me there was a serious crime here. That's all he says. Wouldn't that be the end of the case?
04-1495 +++$+++ 19104 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It shouldn't be the end of the case. It would be an issue of causation at that point, Your Honor, if there were evidence.
04-1495 +++$+++ 19105 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but the question is the motivation for his decision to bring the case.
04-1495 +++$+++ 19106 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The motivation for his decision --
04-1495 +++$+++ 19107 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And he says I -- I would have brought it anyway.
04-1495 +++$+++ 19108 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But in this case, the prosecutor's decision to bring these charges to the grand jury I don't think has any probative force whatsoever.
04-1495 +++$+++ 19109 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why --
04-1495 +++$+++ 19110 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think the defendant can subpoena the prosecutor?
04-1495 +++$+++ 19111 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course.
04-1495 +++$+++ 19112 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why? I thought the prosecutor had absolute immunity.
04-1495 +++$+++ 19113 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The prosecutor is not a defendant, Your Honor.
04-1495 +++$+++ 19114 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You say he -- he can't be brought into court to defend his own -- his own judgment, but he can be brought into court when -- when an investigator is sued in -- in order to take his testimony as to what would have happened?
04-1495 +++$+++ 19115 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ His testimony was taken in this case and can be taken in this case because at that point in these proceedings -- and you have to look at the evidence of record to this point in this proceeding -- there is very clear evidence of retaliation as a motive for this prosecution.
04-1495 +++$+++ 19116 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, he may have done it voluntarily here, but I find it hard to believe that he could be subpoenaed, when -- when he has absolute immunity from suit against himself, to testify in a suit against somebody else. It seems to me a very strange kind of a --
04-1495 +++$+++ 19117 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the fact that he has absolute immunity does not immunize him from giving testimony in the case.
04-1495 +++$+++ 19118 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So he's a witness. Suppose his testimony --
04-1495 +++$+++ 19119 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He's a -- he's a witness.
04-1495 +++$+++ 19120 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Suppose that the person is convicted.
04-1495 +++$+++ 19121 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Suppose the person is convicted.
04-1495 +++$+++ 19122 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes. Can you bring your Bivens claim anyway?
04-1495 +++$+++ 19123 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Heck against Humphrey I think would stand in the way of that, Your Honor.
04-1495 +++$+++ 19124 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Really? So that's a -- but it's not a civil case.
04-1495 +++$+++ 19125 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's not a simple case.
04-1495 +++$+++ 19126 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So you say that if he's convicted, after all, he may have been convicted but it may be because of the retaliatory motive.
04-1495 +++$+++ 19127 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if he is convicted and a civil action for damages is then brought --
04-1495 +++$+++ 19128 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-1495 +++$+++ 19129 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- then I think you are in the framework of Heck against Humphrey --
04-1495 +++$+++ 19130 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. So you -- so you say --
04-1495 +++$+++ 19131 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- where the court --
04-1495 +++$+++ 19132 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- if he's convicted, that's the end of it --
04-1495 +++$+++ 19133 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
04-1495 +++$+++ 19134 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- whether there was a retaliatory motive or not.
04-1495 +++$+++ 19135 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I think it's very difficult in that case. In Heck against Humphrey, which this Court viewed as a collateral attack on an outstanding conviction, the Court held that there had to be a favorable termination of the criminal proceeding in order to maintain the civil action for damages under section 1983.
04-1495 +++$+++ 19136 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Oh, that's 1983.
04-1495 +++$+++ 19137 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Court went on to say, however, that if the civil damage action would not necessarily impugn the conviction, that the case could proceed even though there had not been a favorable termination, reversal, or expungement --
04-1495 +++$+++ 19138 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. So what he does is he --
04-1495 +++$+++ 19139 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of the conviction.
04-1495 +++$+++ 19140 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- he brings his action and he says here I am 20 years in prison and I agree I'm guilty, but they never would have prosecuted me without the fact that they hate the Hell's Angels and they, in fact, criticize everything that we say.
04-1495 +++$+++ 19141 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that action wouldn't be permitted to proceed.
04-1495 +++$+++ 19142 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Because?
04-1495 +++$+++ 19143 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would be viewed as a collateral attack on an outstanding conviction.
04-1495 +++$+++ 19144 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, no. He's saying I was -- I was guilty, but the -- all right. Anyway --
04-1495 +++$+++ 19145 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I don't think --
04-1495 +++$+++ 19146 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I won't force you into that.
04-1495 +++$+++ 19147 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- with all due respect, Your Honor, that's a real-world example.
04-1495 +++$+++ 19148 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'll take basically virtually never if he's convicted. They concede that you could bring this kind of action if there's no probable cause. So we're talking about that range where there was probable cause but acquittal. That's what we're talking about here.
04-1495 +++$+++ 19149 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. And why probable cause is not the appropriate standard is because it does not distinguish between what might be an unconstitutional prosecution -- that is, one based solely upon race, religion, or protected speech -- and one that is not. When you look to these earlier cases, Your Honor, I agree they arose in employment contexts. They arose in the context of a prison.
04-1495 +++$+++ 19150 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now, you're -- you're in the cases, but I'm -- I'm trying to pursue this. You've given me another idea --
04-1495 +++$+++ 19151 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1495 +++$+++ 19152 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- which is I would like to say one word about this. I'm sorry to interrupt your train of thought here, but look. I'm looking for other screens. Is there -- is there -- the particular point that they're worried about is you say we want to establish the retaliatory motive. That's what's worrying them because they see, in that establishment of the retaliatory motive, discovery, and discovery means you not only talk to the investigators, but you're also talking to, as a witness, the prosecutors to find out who said what to whom in order to see if you could establish that they didn't like the speech of the defendant. Now, can you give me any screen, not your case, but any kind of a screen that will help --
04-1495 +++$+++ 19153 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1495 +++$+++ 19154 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- weed out the sheep from the lambs --
04-1495 +++$+++ 19155 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I --
04-1495 +++$+++ 19156 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- the goats from the sheep or whatever --
04-1495 +++$+++ 19157 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
04-1495 +++$+++ 19158 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- in that area?
04-1495 +++$+++ 19159 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I submit the screen is that set forth by this Court in Harlow, which is an objective standard and which is whether the conduct involved violated a clearly established statutory or constitutional right of which a reasonably prudent law enforcement officer or Government official should be aware. That's why I tried to say earlier this standard that should govern this case is not probable cause, but the standard set forth by this Court in Harlow --
04-1495 +++$+++ 19160 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So the -- the screen, in effect, is --
04-1495 +++$+++ 19161 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And is a screening.
04-1495 +++$+++ 19162 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the qualified immunity screen.
04-1495 +++$+++ 19163 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. And there was no screening mechanism in United States against Armstrong. The Court made it very clear that what you were applying there were ordinary equal protection standards.
04-1495 +++$+++ 19164 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Have there been cases where in the context of the prosecution, there's been a motion to dismiss the prosecution because it was brought in retaliation for the exercise of the First Amendment right?
04-1495 +++$+++ 19165 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This Court has not decided what the proper remedy would be there, Your Honor. And the cases --
04-1495 +++$+++ 19166 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Have there been cases in the other courts?
04-1495 +++$+++ 19167 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not aware of any cases where that has succeeded except at the circuit court level --
04-1495 +++$+++ 19168 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but it did in the Armstrong --
04-1495 +++$+++ 19169 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- where the conviction has been invalidated for that reason.
04-1495 +++$+++ 19170 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in the race context, it is a dismissal of the prosecution itself. Isn't it?
04-1495 +++$+++ 19171 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. It might be the same here.
04-1495 +++$+++ 19172 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- with Harlow here.
04-1495 +++$+++ 19173 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ My -- my question was directed to the First Amendment.
04-1495 +++$+++ 19174 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For the First Amendment. No, I'm not aware of -- certainly no decisions of this Court, and I think the only cases arise --
04-1495 +++$+++ 19175 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well -- well, surely the prosecution --
04-1495 +++$+++ 19176 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in the circuit courts of appeals, Your Honor.
04-1495 +++$+++ 19177 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Surely the prosecution would go ahead if there were probable cause. No? No? I mean, suppose it was brought up during the prosecution.
04-1495 +++$+++ 19178 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the question --
04-1495 +++$+++ 19179 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You mean to say if there was -- if there was perfect probable cause for the prosecution, that you can stop the prosecution in its tracks by -- by an allegation of the First Amendment violation?
04-1495 +++$+++ 19180 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You can move for dismissal of the charges. But look, as far back as 1886, this Court -- this Court found a violation of the Equal Protection Clause in a racially motivated prosecution in a situation where there was clearly probable cause and, indeed, overwhelming evidence of guilt for violation of a facially neutral statute. In United States against Armstrong, the existence of probable cause did not stand as a bar to the selective prosecution claims.
04-1495 +++$+++ 19181 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But that -- that's true. I now think we're making some progress. I don't think it is quite a qualified immunity. I think it's possible and don't -- I'm putting words in your mouth and deny them if I am. One, he's convicted, no case. Two, no probable cause, everybody agrees there's a case. Three, now there is probable cause, but he's acquitted. Okay?
04-1495 +++$+++ 19182 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's this case.
04-1495 +++$+++ 19183 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In that circumstance, suppose you say we cannot even allow discovery. You don't even get to discovery on your retaliatory motive unless you show clearly, question mark, or unless you show likely, question mark, that the investigator not only retaliated, but he retaliated under conditions where any reasonable person would have known that what he was doing was contrary to the Constitution.
04-1495 +++$+++ 19184 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly, Your Honor. That --
04-1495 +++$+++ 19185 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And if you don't show that as a -- as a threshold, you don't even get discovery.
04-1495 +++$+++ 19186 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't -- that is exactly the Harlow standard. That is exactly the standard that was applied in Crawford-El against Britton as the first step in the stage of developments in that case.
04-1495 +++$+++ 19187 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if you turn the Harlow standard around -- I mean, you're -- you're making the -- the negation of the Harlow standard the screening device --
04-1495 +++$+++ 19188 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly.
04-1495 +++$+++ 19189 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- in Justice Breyer's example.
04-1495 +++$+++ 19190 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly.
04-1495 +++$+++ 19191 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-1495 +++$+++ 19192 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's the threshold determination in a Bivens action of this kind.
04-1495 +++$+++ 19193 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. McCartan, what was the 1887 case or 1880 --
04-1495 +++$+++ 19194 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yick Wo against Hopkins.
04-1495 +++$+++ 19195 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yick Wo.
04-1495 +++$+++ 19196 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought you said Armstrong.
04-1495 +++$+++ 19197 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no. Armstrong --
04-1495 +++$+++ 19198 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yick Wo.
04-1495 +++$+++ 19199 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- much more recently, but Yick Wo against Hopkins.
04-1495 +++$+++ 19200 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought it was --
04-1495 +++$+++ 19201 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let -- let me ask you this. Suppose the law enforcement official -- the postal inspectors bring the prosecution to the prosecutor because of their disagreement with his First Amendment views. The prosecutor said, I don't care about the First Amendment views. I'm glad you brought this to me. I'm going to prosecute because there's probable cause here and this is a bad actor. What results?
04-1495 +++$+++ 19202 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The result is that's a question of causation, Your Honor, if there is evidence.
04-1495 +++$+++ 19203 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's why --
04-1495 +++$+++ 19204 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. If there is evidence here with respect to retaliation, then the question of whether the independent act of the prosecutor somehow immunizes that conduct is a question of fact for the trier of fact in the case. If the action --
04-1495 +++$+++ 19205 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose the prosecutor said, you shouldn't have brought this to me because you -- you're -- you're motivated by the First Amendment. But now that it's here, I have my own independent interest in going ahead.
04-1495 +++$+++ 19206 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's the evidence the Government can bring forward when the burden of proof shifts upon a showing of an illegal or unconstitutional motive for bringing the prosecution to begin with. That's the kind of evidence the Government would present to show that the prosecution would have taken effect in any --
04-1495 +++$+++ 19207 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if the burden does shift that way --
04-1495 +++$+++ 19208 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly.
04-1495 +++$+++ 19209 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- wouldn't it be consistent with the screening mechanism that Justice Breyer suggested and -- and that you accepted? Wouldn't -- wouldn't the -- the -- when the burden shifts, wouldn't the obligation be on -- on the point of substance, as opposed to the point of -- of screening, not to show that the -- that the prosecutor would have brought the prosecution anyway, but to show that the investigator would have acted to procure that prosecution anyway? So you would have parallel standards.
04-1495 +++$+++ 19210 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly.
04-1495 +++$+++ 19211 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-1495 +++$+++ 19212 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the prosecutor has immunity, cannot be a defendant in the case.
04-1495 +++$+++ 19213 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. But just -- I just want to nail this --
04-1495 +++$+++ 19214 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, absolutely.
04-1495 +++$+++ 19215 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- to make sure I understand it. So you're -- you're modifying your position of a minute ago in which you said the standard would be would the prosecution have been brought anyway, and you're now saying, which I think would be consistent with your answer to Justice Breyer, the -- the question is would the investigators have tried to procure the prosecution anyway. And do I understand you correctly, and -- and have you changed your position?
04-1495 +++$+++ 19216 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that is a significant distinction, Your Honor, but I think we have to establish that they procured the prosecution and that it did proceed by reasons of the illegal motivation and not for some independently objective standard.
04-1495 +++$+++ 19217 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right, because the prosecutor could have gotten a lot of other information from other people.
04-1495 +++$+++ 19218 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely.
04-1495 +++$+++ 19219 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you're not going to throw out the prosecution just because this one piece of information was bad.
04-1495 +++$+++ 19220 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it's a dual --
04-1495 +++$+++ 19221 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Consider too what the facts of record are here. This prosecutor was a complicit conduit in this action. He admitted in the presence of a grand jury witness that he couldn't care less about the guilt or innocence of these people. He just wanted a conviction so he could obtain a lucrative position in private practice. I understand he is still a prosecutor at this time. But that decision of the prosecutor, based upon facts of that kind, has no probative value whatsoever in terms of the independent action that might have broken the chain of causation in a case of this kind. Nor does the indictment of the grand jury have any probative value because exculpatory evidence was withheld from the grand jury. And I think in determining the value of the grand jury's action, you have to really determine not only what was presented to the grand jury, but also what was withheld from examination.
04-1495 +++$+++ 19222 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I go back to one question Justice O'Connor asked you earlier? To what extent are there -- is there precedent out there in other courts that have decided this very issue? Are there -- is there precedent for what you're asking us to do?
04-1495 +++$+++ 19223 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There -- there is precedent in the courts of appeals, Your Honor. The cases, I think, are cited in our brief where prosecutions have been invalidated based upon violations of constitutional rights.
04-1495 +++$+++ 19224 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But a violation of First Amendment rights or --
04-1495 +++$+++ 19225 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ First Amendment rights. I think that is the case. Not cited in our brief. But there are cases to that effect.
04-1495 +++$+++ 19226 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and were those cases in which the prosecution itself was brought to a halt, or were they post-prosecution damage actions?
04-1495 +++$+++ 19227 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Post-prosecution. Not post-prosecution damage actions but appeals, direct appeals, to invalidate the conviction --
04-1495 +++$+++ 19228 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The conviction.
04-1495 +++$+++ 19229 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- based upon the violation --
04-1495 +++$+++ 19230 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But is there any precedent for a damage action of this kind?
04-1495 +++$+++ 19231 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Bivens is.
04-1495 +++$+++ 19232 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but not quite. Bivens isn't exactly like that. This is Fourth Amendment. So is there -- is there precedent for a damage action brought on the theory that the prosecution was brought for -- to retaliate for First Amendment speech?
04-1495 +++$+++ 19233 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not aware, Your Honor, of any precedents --
04-1495 +++$+++ 19234 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not either.
04-1495 +++$+++ 19235 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in the three circuits where probable cause is not a bar to an action of that kind.
04-1495 +++$+++ 19236 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, that -- that means one of two things: either what you're arguing for is not going to bring a flood of litigation, or everyone has assumed that probable cause is a -- is a requirement.
04-1495 +++$+++ 19237 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think it would be the former rather than the latter, Your Honor, since probable cause does not distinguish between what may be an unconstitutional act on the part of the Government and one that might be motivated by a legitimate grievance.
04-1495 +++$+++ 19238 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but -- but I'm not sure that that proposition has been established in the cases.
04-1495 +++$+++ 19239 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, and that's why I think this case is before this Court at this time.
04-1495 +++$+++ 19240 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Neither -- neither does absolute immunity for the prosecutor distinguish between whether the prosecutor was acting just illegally or just acting unconstitutionally. I mean, yes.
04-1495 +++$+++ 19241 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If I may --
04-1495 +++$+++ 19242 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You apply the same rule there.
04-1495 +++$+++ 19243 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor. Is that -- was that an observation or a question?
04-1495 +++$+++ 19244 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, well, your -- your point that -- that there -- there has to be a difference between whether there's a constitutional violation or not in this context seems to me not well taken because we don't make that distinction in the context of giving absolute immunity to the prosecutor. We don't say he doesn't have absolute immunity when -- when he's been guilty of a constitutional violation.
04-1495 +++$+++ 19245 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But as Justice Souter brought -- questioned whether the prosecution was procured for unconstitutional reasons, the immunity of the prosecutor has nothing to do with the reasons for which the prosecution is brought. It only protects him from civil damage liability. The investigators themselves have no such immunity. It is qualified.
04-1495 +++$+++ 19246 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. But the point remains that if in the prosecutorial context that the immunity exists whether or not there's a constitutional violation, then that teaches us that the same rule should apply to this case. That was Justice Scalia's --
04-1495 +++$+++ 19247 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I think that is the difference, Your Honor, between absolute and qualified immunity. The Court has given absolute immunity only to those functions that are so intimately associated with the judicial process, that they have to give immunity to those people, otherwise there would be an unjust interference with --
04-1495 +++$+++ 19248 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask this question? Maybe I should ask Mr. Kneedler. But am I correct in assuming that even if you should lose on the issue that we're faced with today, the case would, nevertheless, go forward because you would still seek to prove an absence of probable cause?
04-1495 +++$+++ 19249 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, certainly that would be a question for the jury, Your Honor, absence of probable cause.
04-1495 +++$+++ 19250 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but the case wouldn't be over if you lose here.
04-1495 +++$+++ 19251 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it depends on what ground we would lose here. If the Court went on to decide the sufficiency of the allegations in a Bivens-type case, which I don't think it should and which the Court declined the invitation to do so in Harlow, then we would not lose. If you did --
04-1495 +++$+++ 19252 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I wouldn't worry a lot about that, Mr. --
04-1495 +++$+++ 19253 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right. May I say one word about the tort of malicious prosecution, which I say is not a proper analog for the analysis of cases of this kind? The interests that are protected by the First Amendment are far different from those that are remedied by the tort of malicious prosecution, and the injury to which is of far greater magnitude than what the common law sought to address by the tort of malicious prosecution. The tort of a malicious prosecution tells us nothing about the interests protected by the First Amendment. It remedies different interests. It is not a proper analog and, therefore, shouldn't be involved in definition of what the First Amendment rights may be. If you look at those cases where the Court has referenced the common law in determining how constitutional rights should be remedied, they have been situations where the interests protected at common law are identical to those that are protected by the particular constitutional provision that is involved. A good example is Wilson against Arkansas, Fourth Amendment situation, the question of whether the knock-and-announce principle of common law should be incorporated into the reasonableness determination of the Fourth Amendment. The interest protected by the common law in that situation against unreasonable searches and seizures was identical to the interest protected by the Fourth Amendment. For that reason, the Court said that should be taken into consideration in determining the reasonableness of the action under the Fourth Amendment.
04-1495 +++$+++ 19254 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'd like to ask you one other question. Suppose you win on this on the grounds we've been discussing. What happens in the middle of the trial when a defendant wants to say the same thing? Can he avoid conviction by showing the same thing?
04-1495 +++$+++ 19255 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor.
04-1495 +++$+++ 19256 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What happens when the same claim is made in the middle of a trial that I -- whether I'm guilty or innocent? I haven't been convicted yet, and I want to show that this prosecution wouldn't have been brought in the absence of the retaliatory motive. Can he make that claim in the middle of trial or not?
04-1495 +++$+++ 19257 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if he were foolish enough to make such a claim --
04-1495 +++$+++ 19258 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, no, he believes it.
04-1495 +++$+++ 19259 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I can't believe that a defendant in a criminal prosecution who is acquitted in a subsequent civil suit --
04-1495 +++$+++ 19260 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, no. He's not acquitted.
04-1495 +++$+++ 19261 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, I'm sorry, Your Honor. You say he's not acquitted.
04-1495 +++$+++ 19262 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ He's in the middle of trial and he wants to say --
04-1495 +++$+++ 19263 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think he'd be in the middle of trial under Heck against Humphrey.
04-1495 +++$+++ 19264 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's the criminal trial.
04-1495 +++$+++ 19265 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's a criminal trial.
04-1495 +++$+++ 19266 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The original criminal trial.
04-1495 +++$+++ 19267 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ He's in a criminal trial, and what he wants --
04-1495 +++$+++ 19268 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This is not a civil action for damages.
04-1495 +++$+++ 19269 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No.
04-1495 +++$+++ 19270 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This is a criminal case.
04-1495 +++$+++ 19271 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ They read our opinion which holds in your favor. Then the next thing is in -- in the criminal cases the defense lawyers say, hey, I -- I think my client wouldn't be here today were it not that the FBI had a retaliatory motive.
04-1495 +++$+++ 19272 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would not suffice.
04-1495 +++$+++ 19273 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Because?
04-1495 +++$+++ 19274 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that was the whole purpose of Harlow, mere --
04-1495 +++$+++ 19275 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, no, no. They're going to show exactly the elements that we write in our opinion.
04-1495 +++$+++ 19276 +++$+++ TRUE +++$+++ MR. McCARTAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the -- if the defendant in that case had established evidence tending to show the essential elements of the claim, it would present a question for the court, but I think the court would use the admission against interest as a basis for paying no attention to such --
04-1495 +++$+++ 19277 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you very much, Mr. McCartan. Mr. Kneedler, you have 3 minutes left.
04-1495 +++$+++ 19279 +++$+++ FALSE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens. I'd like to respond to Justice Breyer's suggestion that this could all be solved by an application of the Harlow qualified immunity standard. With all respect, I don't think that that would really work at all because if -- if the point is that it would be unconstitutional to bring a prosecution only because of protected First Amendment activity, that could be taken as a given and still be enormous inquiry into what actually happened between the investigator and the prosecutor, what the real motivation was, what the prosecution's policies were. That is the concern we have for the post hoc inquiry into the process. And not only that, it isn't just the discovery. It's what -- what consequences this will have on law enforcement generally if police officers operate under the assumption that if the prosecution fails, they will be subject to civil liability, which is exactly what Blackstone said, as this Court quoted in Dinsman v. Wilkes. The reason for the rule is that it would be a very great discouragement to public justice if prosecutors, who have a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried.
04-1495 +++$+++ 19280 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But we're not talking about prosecutors there --
04-1495 +++$+++ 19281 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, but -- but that included complaining witnesses. That -- that was what prosecutor meant at common -- at common law. And there's no reason to grope for some sort of screen because the common law furnishes it. The tort of malicious prosecution is what this Court relied upon in Heck v. Humphrey for the favorable termination rule, that you could not bring a 1983 suit unless the conviction had been set aside and the proceeding was terminated in favor of the plaintiff. That same tort, that tort of malicious prosecution, contains the probable cause requirement to guard against an objective screen, to guard against the very thing that Blackstone was worried about and that this Court noticed in -- in the Dinsman case. And that is, that it is important not to have law enforcement officers be chilled from the important function of furnishing information to prosecutors. And this Court's decision in Armstrong imposed an important objective test that you have to show that there's somebody similarly situated before you even inquire into prosecutorial motives. You have to show an objective factor that someone else was similarly situated. Respondent's position would offer no such -- no such protection.
04-1495 +++$+++ 19282 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How about the judge granting a motion to quit at the close of the Government's evidence? Why isn't that objective?
04-1495 +++$+++ 19283 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because at -- at common law -- and I think this was an important insight. At common law, it was not even evidence of the absence of probable cause because a judgment of acquittal turns on the determination that a factfinder -- a reasonable fact finder could not find beyond a reasonable doubt that the defendant had actually committed the crime. Probable cause is a very different standard, which is whether it would lead a reasonable, cautious, prudent person to believe that a crime had been committed. That is the --
04-1495 +++$+++ 19284 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I wasn't --
04-1495 +++$+++ 19285 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ An acquittal does not --
04-1495 +++$+++ 19286 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Your opponent says -- says there is no probable cause requirement. You are now on there's no objective test. It's all subjective. I suggest that there could be an objective test. This is not going to the probable cause question. Objective test? Was this case thrown out at the close of the Government's evidence?
04-1495 +++$+++ 19287 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But -- but my -- my point was at common law, that the wisdom of the courts was that -- that that wasn't even evidence of a -- that should -- that -- that shouldn't allow the suit to go forward because it was a sufficient guard -- protection for the prosecutors.
04-1495 +++$+++ 19288 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Kneedler. The case is submitted.
04-1506 +++$+++ 19292 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument first this morning in 04-1506, Arkansas Department of Health and Human Services v. Ahlborn. Ms. Freno.
04-1506 +++$+++ 19294 +++$+++ FALSE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The parties agree that Medicaid paid over $215,000 to cover the costs of medical care provided to Ms. Ahlborn that resulted from an auto accident that she was involved in. The parties also agree that the Petitioner, the Arkansas Department of Health and Human Services, may place a lien on some portion of the third party settlement proceeds that are at issue in this case. They disagree, however, as to what extent that lien may reach into the third party settlement proceeds in this case. The Respondent, without notifying the Department of Health and Human Services, finalized a settlement with the remaining tortfeasor accepting $550,000 as a compromised settlement for a claim that she had originally valued at over $3 million.
04-1506 +++$+++ 19295 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can you tell me? It's my -- excuse me. My understanding was that Arkansas had intervened in the suit.
04-1506 +++$+++ 19296 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Your Honor. Arkansas did intervene in the lawsuit.
04-1506 +++$+++ 19297 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So after the settlement, I take it Arkansas would -- still would have had the right to -- to pursue its claim in the litigation, or am I wrong about that?
04-1506 +++$+++ 19298 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, after -- at the point that Arkansas learned about the settlement, the case had already been dismissed out of State court with prejudice, and the Respondent notified the department that if it would not accept -- it would not compromise its Medicaid claim, that they would be filing a declaratory judgment action in Federal court to resolve the anti-lien question. And that is how we ended up in Federal court.
04-1506 +++$+++ 19299 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if Arkansas was a party to the case, it didn't get notice of the dismissal?
04-1506 +++$+++ 19300 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's what I don't understand.
04-1506 +++$+++ 19301 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They -- it did not get notice of the dismissal. No, it did not, Your Honor. We do not know what happened, but we did not get notice of the dismissal until after the case was dismissed.
04-1506 +++$+++ 19302 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I don't understand --
04-1506 +++$+++ 19303 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How can they do that with -- with a party? I mean, the -- and the reason -- the reason I ask is it seems to me that you still have the cause of action left. Maybe that would be my next question. Suppose there's a settlement and you don't get, in the settlement, even earmarks, medical specialists, plus general damages, and you're -- you're unsatisfied. Don't you still have the right under Arkansas law -- or do you -- to pursue the tortfeasor for the balance that's owed to you?
04-1506 +++$+++ 19304 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Arguably Arkansas could have attempted to get the case reopened in State court, but the Petitioner -- I'm sorry -- the Respondent in this case selected the Federal forum to resolve the issue.
04-1506 +++$+++ 19305 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but that's not that issue. That is, I think the question is, why is it that this statute doesn't simply provide the following route? Party A and party B enter into a settlement, and they say $10,000 is for medical and $90,000 is for pain and suffering. You, Arkansas, are out $50,000. Well, fine. You're in the case anyway. Sue the defendant for the remaining $40,000.
04-1506 +++$+++ 19306 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor --
04-1506 +++$+++ 19307 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that's the end of it.
04-1506 +++$+++ 19308 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not familiar with the terms of the settlement agreement, but I would assume that if Arkansas would have sued the defendant for the remainder, that there would have been an indemnification clause in the settlement agreement, which means that the money would have ended up coming right out of Ms. Ahlborn's pocket in any event.
04-1506 +++$+++ 19309 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I have no idea about that. I'm interested in this nest of statutes, and the question I think that I would have is why doesn't the statute propose the route for a State in your -- in your position that I just said. If they have a good faith settlement and they think that $10,000 of this good faith settlement is attributable to the medical expense and you are out $40,000 -- $50,000, you can sue the other party. And if you're in the case, you just proceed with the suit.
04-1506 +++$+++ 19310 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor --
04-1506 +++$+++ 19311 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They can't settle your claim out from under you.
04-1506 +++$+++ 19312 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is exactly what happened. They did settle the claim out from under the department.
04-1506 +++$+++ 19313 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but the --
04-1506 +++$+++ 19314 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But we're asking how that can be.
04-1506 +++$+++ 19315 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't -- well, we don't know how that can be. We don't know why the -- we do not know why the State court dismissed the action.
04-1506 +++$+++ 19316 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We're asking you as a matter of Arkansas law.
04-1506 +++$+++ 19317 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As a matter of Arkansas law, a claim should not be dismissed until all parties are -- the rights of all parties are determined.
04-1506 +++$+++ 19318 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why didn't Arkansas --
04-1506 +++$+++ 19319 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I wonder if you have a claim for incompetent counsel representing you.
04-1506 +++$+++ 19320 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry?
04-1506 +++$+++ 19321 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm wondering you -- if you have a claim against counsel for being incompetent in letting a settlement be made without notice to the -- to you. It seems to me hard to -- hard to understand how this could happen.
04-1506 +++$+++ 19322 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if -- in fact, there is an Arkansas statute that if monies that belong to the department are distributed in a -- in a manner that is inconsistent, you know, with the interests of the department, that it can pursue either the Medicaid recipient, her guardian, her attorney, or anyone else for that money.
04-1506 +++$+++ 19323 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then why don't we just send you back to do that?
04-1506 +++$+++ 19324 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because --
04-1506 +++$+++ 19325 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, why are we going through this -- this proceeding here?
04-1506 +++$+++ 19326 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The reason we're going through the proceeding here, Your Honor, is because the issue of the anti-lien provision was raised. That was not raised in State court. It was brought in Federal court as a part of the declaratory judgment action.
04-1506 +++$+++ 19327 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. I -- I realize that. But at -- at the end of the day, you want your money, and -- and I don't see why you can't get your money simply by going back into the State court. Maybe -- maybe lapse of time bars you at this point. But presumably you could have avoided all of this by simply saying, we didn't agree to the settlement. We're still here. We want our -- the -- the remainder of our money.
04-1506 +++$+++ 19328 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we could have proceeded in State court if we wished. The State, of course, has limited resources, and we learned that the --
04-1506 +++$+++ 19329 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, wouldn't it have been easier to do that than come to the Supreme Court of the United States?
04-1506 +++$+++ 19330 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We never expected to get, frankly, to the Supreme Court of the United States. But we did understand that we would be --
04-1506 +++$+++ 19331 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You were the Petitioner.
04-1506 +++$+++ 19332 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- before the Federal district -- I'm sorry?
04-1506 +++$+++ 19333 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You were -- you were the Petitioner.
04-1506 +++$+++ 19334 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1506 +++$+++ 19335 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if you're filing a petition, you have to have some expectation that you might end up here.
04-1506 +++$+++ 19336 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, I thought you meant at the time that the State court case was dismissed. I'm sorry. I misunderstood the question.
04-1506 +++$+++ 19337 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I want to go back to the Federal statutes and the State statute.
04-1506 +++$+++ 19338 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1506 +++$+++ 19339 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why isn't this discussion just suggest what the answer is to the legal question raised? The answer is, of course, you cannot get a hold of this money in the hands of the victim. The money in the hands of the accident victim is not your money. It is not medical expense money. It was stipulated that it is not. That doesn't leave you without a remedy. The remedy is to go against the causer of the accident and get the extra money that you think is entitled to you. The statutes say that literally, and why not just follow them?
04-1506 +++$+++ 19340 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the third party liability provisions of Federal Medicaid law is what governs this case, and those statutes require that the States seek -- seek reimbursement from liable third parties for medical costs for the full amount of that liability. Now, as a -- a condition of Ms. Ahlborn's eligibility -- or as a condition of eligibility for Medicaid, Ms. Ahlborn had to assign to the State her right to payment for medical costs -- her right to payment for medical costs. Consequently, when she assigned that right to the State, it was synonymous with what the State itself had to do, which was seek full reimbursement from liable third parties to the extent of the third parties' legal liability.
04-1506 +++$+++ 19341 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But could she -- after that assignment, could she bring a suit in her own right to do that, to recover the medical costs?
04-1506 +++$+++ 19342 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, she could, Your Honor, and in fact, that is what the majority --
04-1506 +++$+++ 19343 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even though she's assigned the cause of action to the State?
04-1506 +++$+++ 19344 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. And that is what the majority of the Medicaid recipients in our State choose to do. They prefer to pursue the action on their own and in the end just reimburse the Medicaid program.
04-1506 +++$+++ 19345 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why isn't it dismissed on the basis that they -- they don't have a cause of action because they've assigned it?
04-1506 +++$+++ 19346 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they -- she is basically -- a recipient is pursuing the cause of action with the -- the approval of the State. And also, in the third party liability provisions, it's important to recognize that they provide -- they include a duty of cooperation that the recipient has to cooperate with the State in seeking full Medicaid reimbursement. So the third -- the Federal third party liability provisions basically consider the recipient and the State to be a team, a team that is out to get full reimbursement.
04-1506 +++$+++ 19347 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're -- you're talking without reference to the statute, and as I read the statute, the phrase that keeps reappearing is payments made by a third party for health care items or services. So she has to turn over from her recovery what she got for health care, but we know that her tort claim consisted of a lot more. So if the Federal statute says she has to turn over what she received from the third party for health care services, well, she did that, and you agreed that that would be a fair allocation. So I don't see how you get from her the -- a much larger share than what she got for health care.
04-1506 +++$+++ 19348 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, what the statute requires -- this is in the Petitioners' brief on pages 2 and 3 -- at 42 U.S.C. 1396k(a)(1)(A), which is the section that talks about the scope of the assignment, she has to assign her rights to payment for medical care, not payments that she actually receives for medical care. And what are her rights to payment for medical care? If we would take this out of the Medicaid context and put it in a standard tort context, someone who's injured by a third party has a right to receive all the money that she is out due to the fact that she was injured by the third party.
04-1506 +++$+++ 19349 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why isn't her response to that argument, look, I've -- I've assigned you my rights? There's no question about that. I'm also willing to give you whatever the amount is that they allocated. If -- if you want the difference, you've got the assignment. Go ahead and sue for it.
04-1506 +++$+++ 19350 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is nothing, though, in the --
04-1506 +++$+++ 19351 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, that would be consistent with the -- with the statute. Wouldn't it?
04-1506 +++$+++ 19352 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The third party liability provisions do not require the State to ever seek reimbursement through the direct --
04-1506 +++$+++ 19353 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, no, but I -- I'm not saying that it -- it does. The State can do nothing if it wants to. But the statute that you just quoted requires her to assign to the State her right to recover for -- for her medical expenses. She says, I have done that. In fact, I've done that as a matter of law, under Arkansas law. You've got your assignment. Number two, I'm giving you the portion of the recovery that I got with respect to medical payments. You can have it. Now, there's a difference between what you paid and what I got attributable to medical payments, an amount, by the way, which you stipulated was correct. So if you want the difference, sue for it. Go ahead. It's fine with me. Why isn't that the answer?
04-1506 +++$+++ 19354 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Ms. -- first of all, with regard to the stipulation, Your Honor, the parties have always agreed that Medicaid paid over $214,000 --
04-1506 +++$+++ 19355 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right.
04-1506 +++$+++ 19356 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- for Ms. Ahlborn's damages. The State is in no way trying to take anything from the third party settlement proceeds that represents -- that represents payment for anything other than what is necessary to reimburse the State for that amount of money.
04-1506 +++$+++ 19357 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you're -- you're basing your argument on this statute.
04-1506 +++$+++ 19358 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1506 +++$+++ 19359 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And let me come back to my question. This statute simply says that she will assign her rights to recover for the medicals. She has done that. She has also given you the portion of the settlement which she and you agree is attributable to the medicals. Why isn't the statute satisfied if she simply says, you've got your assignment? If you want the difference between what I've given you and your out-of-pocket expense, sue. You have the assignment. You have the right. Go ahead and sue for it.
04-1506 +++$+++ 19360 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because she assigned, Your Honor, her right to recover -- or her right for payments from third parties, she no longer has the right to compromise the State's claim. Ms. -- the Respondent does not have --
04-1506 +++$+++ 19361 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it seems to me that that is an entirely different argument. The question is what does the statute require her to do and entitle you to do. And I don't see why, under the statute, the statute is not satisfied if you simply sue for the difference under -- under your assignment of her rights.
04-1506 +++$+++ 19362 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's -- under the statute, her assignment -- she has a duty of cooperation, first of all, to cooperate with the State in receiving these recoveries. The assignment allows her to bring a lawsuit. It does not require her to bring a lawsuit. Primarily the obligation is on the State to sue --
04-1506 +++$+++ 19363 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Doesn't the assignment allow you to bring a lawsuit?
04-1506 +++$+++ 19364 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, the assignment allows --
04-1506 +++$+++ 19365 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then why don't you bring it? I mean, the answer to the -- to the statutory point, it seems to me, is you've got your assignment. If you're not whole yet, sue.
04-1506 +++$+++ 19366 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But she -- she opted to bring the -- she opted to bring the lawsuit on her own. And the point I was making earlier --
04-1506 +++$+++ 19367 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So what? You can sue too.
04-1506 +++$+++ 19368 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We could sue, but the State has limited resources. Every penny --
04-1506 +++$+++ 19369 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let me -- let me ask you this question so far as the rights of the assignee and the assignor. Suppose it's a very weak case and the litigant says I want to settle for 20 cents on the dollar. Are you saying that there's some kind of duty to notify the State and -- and to consult with the State before this is done?
04-1506 +++$+++ 19370 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, and that is encompassed within State law.
04-1506 +++$+++ 19371 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay. Suppose the -- the State says, well, we -- we don't -- we don't agree with you. Then -- then what happens? Then they're at loggerheads and you go to Justice Souter's position I suppose.
04-1506 +++$+++ 19372 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In that situation, then the -- the case would just have to go forward to litigation. And yes, the State, if it wished to pursue --
04-1506 +++$+++ 19373 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would -- would it -- if -- suppose in the instance I put they -- the -- the State has -- has an objection, but the settlement is made, nonetheless, for 20 cents on the dollar. Do you still think you have the right to receive 100 percent of your payment from the proceeds in the case that I put?
04-1506 +++$+++ 19374 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Would you repeat that? I'm sorry.
04-1506 +++$+++ 19375 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Assume that it's a very weak case. They settle for 20 cents on the dollar. Do you have the right, as you understand the law, to insist that you receive 100 percent of your payments from the gross settlement?
04-1506 +++$+++ 19376 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the Medicaid recipient can never compromise the claim of the State.
04-1506 +++$+++ 19377 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The answer is yes, I take it.
04-1506 +++$+++ 19378 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Pardon me?
04-1506 +++$+++ 19379 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The answer is yes, I take it. In the case I put, the answer is you would think that you're entitled to 100 percent of your payments. So that eats into her general damages.
04-1506 +++$+++ 19380 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, she -- in that situation, Your Honor, she can -- she can compromise her own claim. She cannot compromise the State's. If she wants --
04-1506 +++$+++ 19381 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you think you're -- you're entitled to 100 percent under Arkansas law, but -- and I take it, that would be without regard to what the Federal law required. The Arkansas law can go beyond -- just looking at the assignment provision, beyond what the Federal law requires you do as a condition of participation in Medicaid. Correct?
04-1506 +++$+++ 19382 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. State law cannot go, Your Honor, beyond Federal law, and Federal law allows the State to receive full reimbursement to the extent of the third party's liability.
04-1506 +++$+++ 19383 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if we disagree with you on that -- in other words, you're saying we don't even have to reach the anti-lien provision question. If we think the Medicaid condition only goes to the extent payments for medical care, then you would lose without regard to the anti-lien provision?
04-1506 +++$+++ 19384 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry. Would you repeat that?
04-1506 +++$+++ 19385 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Arkansas law, as you understand it --
04-1506 +++$+++ 19386 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1506 +++$+++ 19387 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- requires a -- a full -- full assignment of any expenses the State -- or full recovery of any expenses the State has incurred. It's not -- it's a debate whether Medicaid law requires that. And what you're saying is if we think the Medicaid law does not require it, you would lose without regard to any consideration of the anti-lien provision?
04-1506 +++$+++ 19388 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If Medicaid -- Medicaid law does require full reimbursement. But if this Court determined that Medicaid law did not require full reimbursement from -- to the extent of a third party's liability, well, then there would not be an anti-lien -- there would not be an anti-lien provision question. But Federal law does require the State to seek full reimbursement to the extent of the third party's liability.
04-1506 +++$+++ 19389 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's one of the issues, and I'm trying to understand. The Respondent's position is that the Arkansas law goes beyond what the Medicaid assignment provisions require. And I want your position on whether or not, if that's right, again without regard to the anti-lien provision, that you would lose. It seems to me that you can -- Arkansas can go beyond what the Medicaid law requires for reimbursement, if it wants.
04-1506 +++$+++ 19390 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, that is not true, Your Honor. Arkansas law must stay within the scope of the Federal law. Arkansas law cannot require a recipient to assign --
04-1506 +++$+++ 19391 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay. So if we read the Medicaid statute to require something less than what your position is here, then you lose.
04-1506 +++$+++ 19392 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be correct.
04-1506 +++$+++ 19393 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay. That's without regard to the anti-lien provision, or is it because of the anti-lien provision?
04-1506 +++$+++ 19394 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be because of the anti-lien provision. But because she assigned her right to payment for medical care, that -- the anti-lien provision doesn't operate with regard to that amount of money that is recovered from a third party in a -- in a third party settlement. If there are no further questions, I'd like to reserve the remainder of my time for rebuttal.
04-1506 +++$+++ 19395 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, counsel.
04-1506 +++$+++ 19396 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-1506 +++$+++ 19397 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Ms. Millett.
04-1506 +++$+++ 19399 +++$+++ FALSE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Excuse me. The problem in this case -- and it's a common one -- is when private parties, beneficiaries, sue first and run the well dry. There's no question in this case that the settlement includes the payment for medical care that she was entitled to and the one she assigned to the State. That is not in dispute. The question is the amount, and the amount is very much in dispute. The -- the position of the beneficiary is that the amount that is medical payment is the amount that we unilaterally decide is the share of medical payments in the settlement.
04-1506 +++$+++ 19400 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What should have happened? If, suppose that Ms. Ahlborn had cooperated. Would there have to be an agreement among all of the parties as to the breakdown of the -- of the settlement?
04-1506 +++$+++ 19401 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. There are two options. One would, of course, be to have an agreement on resolution of the medical claim, which would require notice and involvement of the State. The State could act here. The other option is if they're at loggerheads, for it to be clear up front amongst all the parties that the -- the settlement isn't resolving all the third party liability. It -- the -- the question of liability for medical care, or at least the State's claim for medical care -- sometimes they have their own -- is still open, and there has to be enough money left in the well. There were two insurance policies here that were paid at their caps.
04-1506 +++$+++ 19402 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I mean, why does there have to be enough money in the -- take -- take the -- the case that we -- we put to your co-counsel. Suppose it's a settlement for 20 cents on the dollar. Does the -- does the State have an absolute right to get reimbursement for 100 percent by invading the general damages portion of the settlement?
04-1506 +++$+++ 19403 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The State has -- and the Medicaid statute is quite clear. They have an entitlement to payments for medical care, but --
04-1506 +++$+++ 19404 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but in my -- can you answer the -- the question? You have the problem. They settle for 20 cents on the dollar. Does the State in that case have the absolute right to a lien or a claim or to a demand for the -- for the proceeds in -- for the balance of the 80 -- for the 80 percent balance of the medical costs?
04-1506 +++$+++ 19405 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, not straight out, but what they -- they have the right to make their own decision and compromise their own claim. The beneficiary may think it's 20 cents on the dollar. The State may think -- the State can consider two things and two things only.
04-1506 +++$+++ 19406 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that is -- that is as between the State and the third party tortfeasor, not between the State and -- and the Medicare recipient, I should think.
04-1506 +++$+++ 19407 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not when -- not -- not when the settlement, as here, involves the complete claim. There's never been a claim by the beneficiaries here that there's something left under State law to do or something left in the well to go get on the part of the State. But let -- if I -- I think it's important to understand why these suits against the -- or a State could decide -- and the anti-lien decision does not compel the State to decide otherwise. A State, with its discretion under Medicaid, could decide that pursuing third parties is not viable. This is not an ordinary assignment. This is an assignment with strong duties of cooperation required on the part of the beneficiary. Now, what does the lawsuit look like when the State goes, after the settlement, against the third party tortfeasor here? The State has no control of evidence. It has a pile of bills, none of the relevant evidence. At the point of this lawsuit, the beneficiary's interests are adverse to the State's. They're not in a cooperative mode. They're interested in --
04-1506 +++$+++ 19408 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the State -- the State could sue in the first instance. In fact, if you just read the text of the statute, it seems like the State is the one envisioned to be suing for reimbursement of the medical expenses.
04-1506 +++$+++ 19409 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Two answers, Justice Ginsburg. First, a lot of times, the plaintiffs have already started these lawsuits of these claims long before -- when the State has just started getting up the process of paying the medical bills. And car accidents and stuff can get taken care of pretty quickly. And the -- the second point is, is that the State -- the State may -- needs the help of the beneficiary to bring this suit.
04-1506 +++$+++ 19410 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the State was in this case. The State intervened. So it was party to the case.
04-1506 +++$+++ 19411 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1506 +++$+++ 19412 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And when it -- it found out about the dismissal, why didn't it go right into the Arkansas court and say, you forgot about us? We were a party to this lawsuit.
04-1506 +++$+++ 19413 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They -- they could have, and they'd be -- they'd be fighting the same anti-lien issue there that they ended up fighting in Federal court. But there's one other thing too. Keep in mind these third party liability provisions --
04-1506 +++$+++ 19414 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why would they be fighting the same anti-lien provision? They would be -- wouldn't they be saying we have a claim for all of the medical expenses? And no other party -- the injury victim didn't have authority from us to compromise our claim. It's for us to compromise it.
04-1506 +++$+++ 19415 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. They would say that, and -- and the -- and where -- where the parties came at loggerheads here was -- their position is medical claim is in here. It's in this pot. That's not in dispute. It's in here. How much do you get? Do you get the amount that we unilaterally designate, or can the State have a default rule that says when you cut us out and we no longer have a means of litigating in cooperation with you to make a reasoned judgment as to what the fair medical payment is in this settlement, can we insist upon 100 percent? Otherwise, there's two things happening. The -- the beneficiary should not be better off for having cut the State out of the process, but that's what's going to happen.
04-1506 +++$+++ 19416 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well -- well, if your rule is just one that you have to pay the 100 percent if there's non-cooperation and a non-notice, that's one thing. But the briefs, it seems to me, indicate that you have an absolute right to 100 percent. And those are two very different propositions.
04-1506 +++$+++ 19417 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our position is the 100 percent claim -- the default -- as a default rule, when the State has been cut out and cannot make the reasoned judgment that the Medicaid statute charges the State with making on these claims, that's a 100 percent rule. Quite -- our position, quite straightforwardly, is if the State was involved or if there was a jury finding of 50/50, you know, comparative negligence, then the Medicaid claim gets cut in half because it -- the -- the State can consider two things, extent of liability and cost --
04-1506 +++$+++ 19418 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I -- I know in the case of a jury. But our question is what happens if there's a settlement.
04-1506 +++$+++ 19419 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's -- no. And -- and if there's a settlement in which the State is not involved but the medical bill is compromised -- so it's not out there to be recovered -- the medical bill --
04-1506 +++$+++ 19420 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask this clarifying question? If it's 50/50 because of a jury verdict of comparative negligence, then you only get half the money. If it's 50/50 because of a settlement, believing they only have a 50 percent chance of recovery, what -- what is your answer?
04-1506 +++$+++ 19421 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It depends on whether the State was involved in making that judgment. If the State was cut out of making that judgment, the State can choose to have a default rule.
04-1506 +++$+++ 19422 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose the State was involved but disagreed.
04-1506 +++$+++ 19423 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're saying the State should sue here.
04-1506 +++$+++ 19424 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry.
04-1506 +++$+++ 19425 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're saying here the State should therefore sue, if I understand you.
04-1506 +++$+++ 19426 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The State -- the State should be entitled to a 100 percent rule because -- for two reasons. One, there is no way post hoc -- or no -- a State can decide there's no reliable way post hoc to figure out how much of this truly was a payment for medical care. I mean, stop and think. Medical --
04-1506 +++$+++ 19427 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But here it's stipulated I thought.
04-1506 +++$+++ 19428 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, no. What was stipulated -- and I think you have to read the stipulation very carefully. There is no stipulation in there that the State agrees that $35,000 is an accurate assessment of medical liability. The stipulation says --
04-1506 +++$+++ 19429 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. It's a compromise. Just as my other example of a 50/50 chance of winning the lawsuit, you compromise for 50 percent. I don't see the difference.
04-1506 +++$+++ 19430 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The -- the difference is it's who makes the compromise decision. And the stipulation is -- from the beneficiary's view, they obviously made a compromise decision. They did an across-the-board sort of mathematical reduction of this claim, and they didn't sort of stop and think about what's more easily proven, medical claims or pain and suffering. What's more easily documented. They didn't do -- it's just a mathematical reduction. The State never said that's accurate. The State said, if you win, your statutory construction argument, which is the amount that you unilaterally designate as medical care, is what we're stuck with. And if we try to take more, it violates the anti-lien provision. That's --
04-1506 +++$+++ 19431 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose the State -- suppose the State is involved in the negotiations and they disagree. The -- the parties in good faith say, we've got to settle this for 20 percent. The State said, oh, your case is much better than that. Please don't settle. Then what?
04-1506 +++$+++ 19432 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That --
04-1506 +++$+++ 19433 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It has notice. It's involved, et cetera, et cetera.
04-1506 +++$+++ 19434 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Then at that point, what should happen is there can be a -- the -- the beneficiary can go ahead and resolve her other claims. But everybody has to be on notice. Those third parties, in particular, have to be on notice that this is not the end of the game. You still -- this does not --
04-1506 +++$+++ 19435 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Ms. --
04-1506 +++$+++ 19436 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- cover medical payments.
04-1506 +++$+++ 19437 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Ms. Millett, you've been trying to tell us the difficulties that the State would have in bringing suit later.
04-1506 +++$+++ 19438 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1506 +++$+++ 19439 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What are they? I see your white light is on.
04-1506 +++$+++ 19440 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The --
04-1506 +++$+++ 19441 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'd like to hear what they are.
04-1506 +++$+++ 19442 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the first one, obviously, -- there's three. The first one is evidence control. The State has a pile of bills but no evidence about liability. Now, beforehand, if they're involved, their -- their interests and the beneficiary's are aligned to maximize recovery. After the fact, the State is going to go in, either at a post hoc hearing with the beneficiary or try to sue some third party, and the beneficiary is going to say, oh, I fell asleep at the wheel, I was on my cell phone, I had preexisting conditions, because her incentive is now to reduce your recovery. This is the exact opposite of the duty of cooperation that Federal and State law envisioned for this process. The second --
04-1506 +++$+++ 19443 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why is it her incentive to reduce recovery? She may not be getting anything more, but why does she have incentive to reduce it?
04-1506 +++$+++ 19444 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because at this -- if -- if we're in a post hoc hearing to sort of allocate the settlement, she wants to keep -- have as much of it put into the pain and suffering and lost wages pile and as little in the medical liability pile because she doesn't go home with that.
04-1506 +++$+++ 19445 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I -- I thought she and the --
04-1506 +++$+++ 19446 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And then if -- I'm sorry. There's two -- there's two different post-hearings you could have.
04-1506 +++$+++ 19447 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, yes.
04-1506 +++$+++ 19448 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ One would be a fight with her. The other one would be they go in to sue the defendants. Now, at this point, she's not necessarily adverse, but she has no interest to help.
04-1506 +++$+++ 19449 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. Insofar as the suit against the defendant is concerned, she's not -- she does not have an interest in minimizing.
04-1506 +++$+++ 19450 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But she may if there's an indemnity agreement, which means if they have to pay to us, they will -- I'm sorry. Can I finish? That if -- if the defendants have to pay more to us, then they will get to go after her. And that's the concern.
04-1506 +++$+++ 19451 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Ms. Millett.
04-1506 +++$+++ 19452 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-1506 +++$+++ 19453 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Blair.
04-1506 +++$+++ 19455 +++$+++ FALSE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The problem here, of course, is one where the funds, the proceeds, to resolve a claim are less than the damages of all parties, including the medical bills that have been paid by the State. Now, the Court is correct that not only under the Federal statute did the State have the option of pursuing an independent cause of action, there is a State statute that provides that very thing, our code 20-77-301. And in fact, that statute, in effect, allows a splitting of the common law cause of action for personal injury, which otherwise would be prohibited. But --
04-1506 +++$+++ 19456 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What -- what incentive does she have to cooperate in that later action? And isn't it the fact that she would have a disincentive to cooperate if she's going to have to reimburse the insurance companies for any additional compensation that they pay?
04-1506 +++$+++ 19457 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ She would not have a disincentive to cooperate. She might not have an incentive to cooperate because they're bringing their own lawsuit.
04-1506 +++$+++ 19458 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it -- but -- but don't some of the insurance policies require that if the insurance company, which has settled the first claim, ends up paying -- paying additional money, that that -- that that amount of money would be the -- the responsibility of the -- of the claimant?
04-1506 +++$+++ 19459 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-1506 +++$+++ 19460 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So that's a disincentive on her part. She doesn't want the insurance company to lose any more money.
04-1506 +++$+++ 19461 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that is correct. Had the --
04-1506 +++$+++ 19462 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it seems to me that that's a very strange system for the Federal Government to set up and to -- to -- I mean, to -- to subsidize -- to reward the failure of the -- of the Medicaid benefit -- beneficiary to cooperate. There's a statutory responsibility for her to cooperate, isn't there?
04-1506 +++$+++ 19463 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-1506 +++$+++ 19464 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And she didn't do that here because she just went ahead and settled without -- without giving the State notice.
04-1506 +++$+++ 19465 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I disagree, Your Honor. I do not think that the duty to cooperate necessarily included the duty to include the State in the loop in the settlement process.
04-1506 +++$+++ 19466 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Really.
04-1506 +++$+++ 19467 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is --
04-1506 +++$+++ 19468 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I mean, the State is a party to the proceeding, and she goes ahead and gets the proceeding dismissed without even telling the State, and that -- that isn't included in the -- the responsibility to cooperate?
04-1506 +++$+++ 19469 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The dismissal, of course, followed the settlement. What the complaint is, is that they were not consulted about the settlement process. And it would have been of no benefit had they been consulted about the settlement process. The defendants were only going to pay a certain amount of money. Had the State shown up at the settlement hearing if -- or the conference, if there was such a thing, no doubt it would have taken the position that it takes here, that it's entitled to be paid in full.
04-1506 +++$+++ 19470 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And I suppose if the insurance company heard from the State that the State continued to -- would continue to pursue its claim, in the absence either of a more generous assignment or a more generous settlement, there might not have been a settlement.
04-1506 +++$+++ 19471 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. Had --
04-1506 +++$+++ 19472 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, so why -- why then is it unreasonable for the State to take this position, the one that the government took? They said, of course, we, the governments of State and Federal have only the right to attach the portion of that settlement that is representative of the medical expenditure. And where we're in on the deal, you'll all agree what that portion is, or there won't be a settlement and we'll proceed to trial. But where we're cut out of the deal -- and we shouldn't be because there's a duty to cooperate -- we will assume in that instance that it -- every penny of that medical expense is included in the amount that was settled for. And they say, given the statutes, that's a reasonable way of enforcing their Federal obligation to recover the money. Now, whether we agree or disagree with it as a matter of policy, what is wrong with their saying as a matter of law, we choose to interpret the words this way and implement the statute that way and we have every right to do it? Why don't they?
04-1506 +++$+++ 19473 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, first of all, the -- the remedy that the Petitioner here proposes is one that Congress has not proposed, for openers. And secondly, the Petitioner acknowledges at page 33 of their brief that they had no veto power over the settlement. The settlement was a matter for --
04-1506 +++$+++ 19474 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But that's all consistent, of course, with their position. They say Congress delegated to us the authority to interpret the words this way. It is a reasonable interpretation of the words. We don't deny that you can settle for what you want. All we're saying is, where we're cut out, that that pile of money is deemed by us to include every penny of medical expense, and therefore we get it because we're not taking money that isn't medical expense. We are taking money that does represent medical expense according to our deeming rules.
04-1506 +++$+++ 19475 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. According to their version, they're taking --
04-1506 +++$+++ 19476 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now, what's legally wrong with that?
04-1506 +++$+++ 19477 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because they're -- they're taking money beyond the claim for medical expense, Your Honor, because the claim for medical expense is not measured by the amount of the medical expenses in terms of its value. It is measured by the various factors that affect the value of a claim, of which the payout is only one of the factors. Had they appeared at the settlement proceeding, had we had --
04-1506 +++$+++ 19478 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Did -- did they have notice of the settlement proceeding?
04-1506 +++$+++ 19479 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. The -- it was actually not a proceeding, and I'd have to go outside of the record to say this, but if the case was settled, as most cases are, by exchange of telephone calls and whether --
04-1506 +++$+++ 19480 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But they were -- and they were intervened in this lawsuit. Weren't they entitled to have notice that there was a settlement and that the case was going to be dismissed?
04-1506 +++$+++ 19481 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do not -- strictly speaking, no, they were not entitled to notice because the -- the intervention, it was secondary to the plaintiff's claim. That is, they did not intervene and assert the independent cause of action that the statute gave them. They intervened and claimed a lien upon the settlement's recovery. So since their lien, whatever amount that lien is, was derivative of the plaintiff's claim, I do not agree that they had to be notified of the -- that the case had been settled and an order of dismissal was entered.
04-1506 +++$+++ 19482 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Suppose, though, that were the rule.
04-1506 +++$+++ 19483 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The plaintiff had -- had no obligation to notify the State? There was some mention of a -- of a obligation to cooperate. Is there any statutory obligation under -- I don't see it in the Medicaid statute, but under Arkansas law for -- for the Medicaid recipient to cooperate with the State?
04-1506 +++$+++ 19484 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, there -- there is -- there is a general provision in Arkansas law that -- that the Medicaid recipients assign their claim to notify the State of any potential liable parties, the date of the occurrence, the kind of injury they sustained, the information that would enable the State to pursue its claim should it decide to do so. And in this instance, the State decided to do it by asserting a lien upon the -- the common law action asserted in the State court. Now, if the -- if the State had brought an independent action and asserted its -- its right to recover, rather than riding in the wake of the plaintiffs, then the State would have been in control of that claim and been in control of settlements and whether it was dismissed or not, but --
04-1506 +++$+++ 19485 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The complaint -- the -- the intervention by the State claimed only a lien? Is that what the --
04-1506 +++$+++ 19486 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-1506 +++$+++ 19487 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- document claimed? Intervention --
04-1506 +++$+++ 19488 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- actually -- actually there was never a formal complaint and intervention filed. There was a motion for leave to intervene. It was never followed up on. Again, I'm getting outside the record when I say that.
04-1506 +++$+++ 19489 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Roughly speaking -- I -- I'm -- there may be a few dollars and cents that -- that aren't accounted for here. But roughly speaking, is it fair to say that the amount that -- that you and -- and, for that matter, the State attribute to the medicals out of the total settlement is the same proportion that the claim for medicals bore to the total original claim?
04-1506 +++$+++ 19490 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it is the same percentage that the total medicals bore to what we agreed was a fair valuation of the claim or what we agreed there would be evidence to support.
04-1506 +++$+++ 19491 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-1506 +++$+++ 19492 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In other words, the State -- after this dispute broke out, the Respondent and the Petitioner reached an agreement as to the probable value of the claim, absent any considerations of liability or financial responsibility. And, of course, the amount of the medical expenses was a liquidated sum, and that made it real easy to result in a fraction. And the $35,000 is that fraction times the State's payout.
04-1506 +++$+++ 19493 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well --
04-1506 +++$+++ 19494 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but the -- the other thing that you're -- you're dividing that against is not liquidated.
04-1506 +++$+++ 19495 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-1506 +++$+++ 19496 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And nobody -- I mean, the -- where there's room for -- for compromise is certainly in the pain and suffering part of a settlement, not in the medicals. I mean, the medicals are a given in any settlement I've ever heard of. There it is, black on white. This is how much was paid.
04-1506 +++$+++ 19497 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
04-1506 +++$+++ 19498 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's the compromise. Unless there's a -- you know, a compromise on whether there's liability or not, but -- but whether, if there is liability, this amount is owing, that's -- that's a given for the medicals. Isn't it?
04-1506 +++$+++ 19499 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor has put his finger exactly upon the problem in this case, and that is that there was a tremendous question of liability. And as a matter of fact, this was a high nuisance value settlement, as lawyers refer to it.
04-1506 +++$+++ 19500 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay. In a case like this, then it would be in the interest of someone like your client to make a claim not of $3 million but of $6 million. Then if you settle for exactly the same amount of money you settled for here, the percentage of the medicals -- the amount attributed to medicals would be exactly one-half of what it is here.
04-1506 +++$+++ 19501 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The claim was -- the $3 million claim was not the amount claimed in the original lawsuit, which never got to the point of a claim being made. It was for damages in excess of diversity limits, the -- for diversity of citizenship limits. There was not a $10 million lawsuit or a $20 million lawsuit or an $8 million lawsuit. The $3 million figure --
04-1506 +++$+++ 19502 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, in the original State lawsuit, did you have to state an addendum?
04-1506 +++$+++ 19503 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Only -- the only requirement is that there be an allegation that it's in excess of diversity -- the diversity amount.
04-1506 +++$+++ 19504 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Where did -- then -- then tell me again where we got the $3 million figure.
04-1506 +++$+++ 19505 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ By negotiation with the Respondents, Your Honor, by -- by looking at the -- the damages, the physical damages, the loss of earnings, impairment of earning capacity, all of those things. And -- and however it's phrased, we essentially agreed that that was a fair value, and if their claim is limited to the medical expense component, they're entitled to $35,000.
04-1506 +++$+++ 19506 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And is -- is that in -- is that in writing, along with the allocation --
04-1506 +++$+++ 19507 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Only to the extent that it is represented by the terms of the stipulation entered before the district court, Your Honor.
04-1506 +++$+++ 19508 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I mean, is that part of the stipulation?
04-1506 +++$+++ 19509 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1506 +++$+++ 19510 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-1506 +++$+++ 19511 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the numbers are in the stipulation.
04-1506 +++$+++ 19512 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is there a contention that the medical was under-valued in the settlement or -- I thought it was understood that it was the same proportion of the settlement. I mean, if you discounted everything by 50 percent, medical was discounted by the same percentage as everything else. Is that correct?
04-1506 +++$+++ 19513 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- that's correct, Your Honor.
04-1506 +++$+++ 19514 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Because there's some -- I -- I wasn't clear on whether the State had stipulated that this is what you agreed with the other side or that this is a fair calculation of the settlement.
04-1506 +++$+++ 19515 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was no agreement with the Respondent and the tortfeasor about allocation whatsoever. The idea that we unilaterally came up with a number is -- is not correct. It was a lump sum amount, and when the State -- the Petitioner and Respondents couldn't reach an agreement, ultimately, in order to obviate the necessity for putting on evidence of damages before the district court, so the court would have a factual basis to make this allocation, we entered into a stipulation. And that's where we got to the number that we got to.
04-1506 +++$+++ 19516 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you think under Arkansas law that the injured party as an assignor has a duty to cooperate with the assignee in pursuing the claim?
04-1506 +++$+++ 19517 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Has a duty to cooperate with the assignee to the extent that it does not impair the assignor's interest, that is --
04-1506 +++$+++ 19518 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that duty fulfilled by -- by entering settlement negotiations and not even notifying the assignee?
04-1506 +++$+++ 19519 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In -- in this particular instance, I think it was fulfilled because settlement negotiations resulted in $550,000 that the Petitioners, in all likelihood, would have never received --
04-1506 +++$+++ 19520 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, but what you're saying is that there's no duty to notify the assignee if you think you might get a pretty good result for yourself. I don't understand that as much of -- much of a duty.
04-1506 +++$+++ 19521 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the duty to -- to notify the assignee would be true insofar as proceeding against the third party is concerned. And to the extent that the notification to the assignee would serve any purpose in maximizing the total recovery, there probably is a duty, but notice to the assignee here would have been absolutely of no value insofar as the common interests against the defendants were concerned.
04-1506 +++$+++ 19522 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it certainly would have avoided about 20 minutes of questions in this Court. (Laughter.)
04-1506 +++$+++ 19523 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In retrospect, Your Honor, they would have been plastered with notices.
04-1506 +++$+++ 19524 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Just given your experience -- say, think of the generality of cases like this one -- would it be difficult for you, representing the victims, if the rule were that these statutes give the Government the authority that they want here, as I understand it -- the Federal Government -- which is to say you have an obligation to notify the State of the presence of settlement negotiations. Now, once you've done that, you've given them an opportunity to participate. If they have that opportunity, thereafter they cannot attach more than what are the real medical expenses, which could be a matter for argument in a settlement like this. But if you don't give them that opportunity, they have the right to presume that that settlement, which they knew nothing about, contains the full amount.
04-1506 +++$+++ 19525 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As a practical matter, yes, it would -- it would --
04-1506 +++$+++ 19526 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Because? What are the practicalities of that? Why would it hurt the lawyers representing victims?
04-1506 +++$+++ 19527 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it would be a logistical problem, Your Honor, of --
04-1506 +++$+++ 19528 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It would just require a letter, certified.
04-1506 +++$+++ 19529 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but the certified letter saying that I'm going to stipulate with -- I'm going to enter into settlement negotiations with XYZ corporation, would not really have served any purpose unless they were to be included in every step of the way, because these settlement negotiations sometimes extend over months and years and -- and some of them seem like they go forever. And to have the -- the State at the injured plaintiff's side throughout all of that step would be a logistical problem. And -- and in any event, it -- the plaintiff is in control of the litigation. The State has no right to say, you go to trial or you don't go to trial. We don't agree that you're getting enough. If -- if you go -- if you settle at this figure, we're going to be cut short.
04-1506 +++$+++ 19530 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Wouldn't -- wouldn't the insurance company have to worry about the same problem? That is to say, even if it's not your problem by reason of our coming out the way you would like us to, wouldn't it remain a problem for the insurance company so they could not enter into any settlement until they knew that the State would go along with -- with the division between medicals and -- and other damages? That -- that's what I don't understand. Doesn't it become a problem for the insurance company to somehow bring in the State in the process of the settlement?
04-1506 +++$+++ 19531 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the insurance company potentially would have double liability under Arkansas law if -- if the claim is settled and they know the subrogation claim and --
04-1506 +++$+++ 19532 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right.
04-1506 +++$+++ 19533 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and if it's -- but that's this unnamed defendant's particular problem.
04-1506 +++$+++ 19534 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay, but once -- once the -- once the -- the foolish insurance company figures out that that is what is going to happen, future settlements will be very difficult I would gather.
04-1506 +++$+++ 19535 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I cannot comment on that, Your Honor, since that has not been the -- the case --
04-1506 +++$+++ 19536 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but it's -- it's relevant. And I'm trying to think through the practicalities of it, which you're more familiar with. Suppose that you win this. If you win this, then the defendant's insurance companies know that they're subject to further liability for the medicals in every case. And why won't they sit there and tell you at this settlement, hey, we're not going to enter into this unless you get the State involved so they sign off on it too? We're not going to just compromise some of our liability.
04-1506 +++$+++ 19537 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that may be the result, Your Honor. I -- I cannot foresee all of the ramifications either if we prevail or don't prevail.
04-1506 +++$+++ 19538 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I mean, it sounds as if we're going to get to the same place, that if -- if you prevail, probably the insurance companies will want the State to be involved or they haven't limited their liability, and if you lose, then we would have said that you have to get the -- the State involved.
04-1506 +++$+++ 19539 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. And -- and perhaps if we prevail and the State elects to pursue its own remedy on its own, we'll have another round of litigation.
04-1506 +++$+++ 19540 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And your argument is if it is six in one, half -- half a dozen in the other, we should do it your way because that's what the text of the statute says.
04-1506 +++$+++ 19541 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We ultimately rely upon the text of the statute, Your Honor, irrespective of all of the policy or the political arguments that have been made to the Court. We believe and have maintained throughout that the text of the statute requires --
04-1506 +++$+++ 19542 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ With respect to the text of the statute and whether the anti-lien provision applies, I'd be interested in your view, as a matter of Arkansas law, as to who owned the chose in action first and, secondly, who owned the proceeds of the settlement recovery after the assignment had taken place.
04-1506 +++$+++ 19543 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ First, I think there's no question that Heidi Ahlborn owned the chose in action because under Arkansas law her claim was complete by the time the glass and the metal stopped falling to the highway. Secondly, as to the who owned the proceeds depends upon the extent to which the State was allowed to take an assignment. If the State was allowed to take an assignment from something other than the claim for medical expenses, then they owned the proceeds. Our contention is that the State was only allowed to take an assignment under the language of the statute for the claim for medical expenses, and in that case --
04-1506 +++$+++ 19544 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You're talking about the Federal statute --
04-1506 +++$+++ 19545 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1506 +++$+++ 19546 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- not the State statute.
04-1506 +++$+++ 19547 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Federal statute --
04-1506 +++$+++ 19548 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The State statute clearly goes beyond that and says --
04-1506 +++$+++ 19549 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We lose under the State statute. No question.
04-1506 +++$+++ 19550 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And the Federal statute provides you, you think, with a defense to the State law claim.
04-1506 +++$+++ 19551 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
04-1506 +++$+++ 19552 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why -- why was there Federal jurisdiction in this case in the first place?
04-1506 +++$+++ 19553 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the Federal question involved the preemption issue as to whether the State statute had been preempted by the anti-lien statute.
04-1506 +++$+++ 19554 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So -- so your view of jurisdiction depends upon the Federal defense.
04-1506 +++$+++ 19555 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. That is, the -- the jurisdiction of the district court action we believe was a Federal --
04-1506 +++$+++ 19556 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that -- and which of our cases say that a Federal defense supports Federal jurisdiction?
04-1506 +++$+++ 19557 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A Federal defense does not support the Federal jurisdiction, but the declaratory judgment act gives jurisdiction over Federal questions.
04-1506 +++$+++ 19558 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Allows you to come into court if the claim that would have been brought against you would have been brought in Federal court, and the claim that would have been brought against you would have been under Arkansas law.
04-1506 +++$+++ 19559 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The claim that was -- that we were bringing was under Federal law in that we were claiming the Arkansas statute was invalid by reason of a anti-lien statute, and we believed that that presented a question of Federal law and therefore brought it --
04-1506 +++$+++ 19560 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Sounds like a defense.
04-1506 +++$+++ 19561 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in district court. Which hadn't been raised, Your Honor, and I'm having to wing it. But that's -- (Laughter.)
04-1506 +++$+++ 19562 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you still have a declaration that the Arkansas statute was unconstitutional because it conflicted with the Federal statute?
04-1506 +++$+++ 19563 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. That was our -- our claim before the district court that ultimately wound up in the Eighth Circuit.
04-1506 +++$+++ 19564 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It still sounds like a defense to me, counsel, and I think it may make a difference if your argument relies on the anti-lien provision as a defense or perhaps relies on the -- the assignment provisions in the Medicaid statute. That's why I'm just trying to focus on whether it's the assignment provisions that limit what Arkansas can do as a matter of its own law, or if it's the anti-lien provision as a defense.
04-1506 +++$+++ 19565 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that it is both. I think that the assignment provisions limit the permissible assignment as a matter of Federal law by reason of the anti-lien statute.
04-1506 +++$+++ 19566 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But there's nothing in the assignment provision as such that limits it, is there?
04-1506 +++$+++ 19567 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Other than its language as to what it's for.
04-1506 +++$+++ 19568 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it said -- I'm looking at 1396k(a)(1)(A), which refers to assign to the State any rights to payment for medical care from any third party.
04-1506 +++$+++ 19569 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1506 +++$+++ 19570 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There's no limitation in that.
04-1506 +++$+++ 19571 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Payments -- the right to payments for medical care, which we believe is the language of limitation in that the State is -- in effect, is seeking an assignment of the entire cause of action not just that that is related to the right to payment for medical care, which is simply a component of the claim that may have 5 cents on the dollar value or 100 cents, depending on what the facts of the case are.
04-1506 +++$+++ 19572 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is there any reason that the Federal law would have to act as a limitation on the State law? In other words, if we read the -- the Federal law your way, is there any reason it would frustrate the Federal purposes for the State to say, well, we want to get all of the medical expenses? We don't just want to get the proportionate share of the recovery. That -- that's enough for the Feds, but we are also out State money and we want that State money. They can go further, can't they?
04-1506 +++$+++ 19573 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the absence of the anti-lien statute.
04-1506 +++$+++ 19574 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In the absence of the anti-lien.
04-1506 +++$+++ 19575 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the absence of the anti-lien statute, the State statute would be, in my opinion -- the State would be allowed to take a greater lien than provided by Federal law. But -- and a lien statute is there, and we say that that is the stopping point. The Federal anti-lien statute gives protection to the recipient's property as to which these assignment statutes are an implied exception, but the exception must be limited by the --
04-1506 +++$+++ 19576 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But I assume the State -- the State tries to get around that by saying it never -- never became the property of your client, that by reason of the assignment provision, all choses in action automatically vest in the State, causes of action arising out of transactions in which there's a claim for Medicaid compensation.
04-1506 +++$+++ 19577 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I --
04-1506 +++$+++ 19578 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you say -- you say they can't do that because, at the time the accident occurs, you don't even know that there's going to be a claim --
04-1506 +++$+++ 19579 +++$+++ TRUE +++$+++ MR. BLAIR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I say -- excuse me, Your Honor. I say that that is a fiction because what it attaches to is the cause of action that existed instantly at the time of the injury, and so say, no, you don't own that because it was assigned to us. Well, we had to have something to assign, otherwise assignment was meaningless. We -- in -- in summation, as I see the white light is on, we believe that this case -- and it is Respondent's position that these three statutes that we have been discussing here are plain and unambiguous and that the case should be resolved upon the basis of the statutory language. And we -- it is further Respondent's position that if the case is resolved on the basis of the statutory language, the Eighth Circuit reached a very correct analysis of the language and the results that that takes place. There is no ambiguity, and under the first step of the Chevron case, we submit to the Court that this is a case of statutory construction within the terms of the statutes which, read together, are unambiguous and plain. They get an assignment for the claim for medical care services. The anti-lien statute shields the rest. Thank you very much.
04-1506 +++$+++ 19580 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Blair. Ms. Freno, you have 2 minutes remaining.
04-1506 +++$+++ 19582 +++$+++ FALSE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. First of all, the default rule, that rule being that unless the State is invited into the negotiations, that liability -- the extent of the liability of the third party can be considered to be 100 -- the full amount that Medicaid had to pay -- that is a very important rule. And it makes sense because money that has to be spent -- there was a suggestion of post-settlement hearings to determine what portion of the money is for -- for medical costs and what is for something else. Such hearings would be incredibly expensive, horribly inconvenient. The State would have to, you know, burden -- shoulder this burden, and this is money that could be going into the Medicaid program. Every dollar that's recovered from liable third parties is put back into the Medicaid program, and if the State has to keep hiring more lawyers and has to have administrative hearings or proceeding in judiciary proceedings to determine what part of a settlement constitutes a payment, then that -- that is just a very inefficient use of -- of very limited Federal -- or State funds. I heard a comment in Mr. Blair's argument that Arkansas law -- I think it was --
04-1506 +++$+++ 19583 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Excuse me. I really didn't understand that argument. Does the State deduct from its Medicaid funds the amount that it pays lawyers to conduct Medicaid litigation?
04-1506 +++$+++ 19584 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it does not conduct --
04-1506 +++$+++ 19585 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, then it doesn't matter as far as the Medicaid funds are concerned. It comes out of general State revenues. Right?
04-1506 +++$+++ 19586 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It comes out of general State revenues, but the amount of general State revenues that are there are what is available to put back into the Medicaid fund. Also, Arkansas law does not require an assignment of a cause of action. Arkansas law is very clear on that point, and that's set forth in 20-77-301, which is at -- in -- at the cert petition appendix at page 38. It specifically states that any action taken by the State cannot be a bar to any action brought on behalf of the recipient.
04-1506 +++$+++ 19587 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Ms. Freno.
04-1506 +++$+++ 19588 +++$+++ TRUE +++$+++ MS. FRENO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-1506 +++$+++ 19589 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The case is submitted.
04-1527 +++$+++ 19593 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument next in S. D. Warren Company versus Maine Board of Environmental Protection. Mr. Kayatta.
04-1527 +++$+++ 19595 +++$+++ FALSE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it -- - and may it please the Court: The Presumpscot River is a single body of water, as that term was used in last year's Miccosukee decision. Warren's position is that the flowing of that single body of water through Warren's five dams is not a discharge into that same single body of water. In arguing that certification under section 401 of the Clean Water Act is, therefore, not required, we are not maintaining that the State either has, or should have, no voice on matters of water quality in connection with the relicensing of these dams. In 1986, Congress took care to ensure States a forceful, but not controlling, voice on environmental issues, including water quality issues, in all hydropower relicensing proceedings. Congress was very specific about its intent in 1986, and it intended to give States a strong voice, but not a veto. So, we feel the case -- that the States clearly have that voice. Now --
04-1527 +++$+++ 19596 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Kayatta, if I took a drum of water out of the river and put it in the garage next to the river for 5 years, and, 5 years later, came out and poured that drum of water back into the river, is that a discharge into the river?
04-1527 +++$+++ 19597 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that would be a discharge into the river.
04-1527 +++$+++ 19598 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How is it different here, where you have the dam restraining the waters for a certain period, and then it's being released later, at a subsequent time? Why --
04-1527 +++$+++ 19599 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1527 +++$+++ 19600 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- isn't that also a discharge?
04-1527 +++$+++ 19601 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is -- we draw a distinction -- and I'm referring just to discharge, I'm not addressing the issue that the Court could get to in another case of whether you actually need a discharge of a pollutant, as to just a discharge into the river -- - we draw a distinction between actually removing something entirely from the river, exercising control over it. Your hypothetical, Mr. Chief Justice, had it for 5 years. In that situation, one could say that there may be a discharge into the river when an activity is proposed to pour that back into the river. In a -- in the dams -- the dams, the water continuously flows down. The water never leaves the single body of water called the Presumpscot. And that's the distinction that we would draw.
04-1527 +++$+++ 19602 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even though it's retained in a -- what -- an impoundment pool, or whatever, behind --
04-1527 +++$+++ 19603 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the dams slow down the water as it comes down the Presumpscot. And because the dams slow down the water, then the river widens in an area called an impoundment area. But the -- there is a continuous motion leaving the dam in the same amount of water that comes into the area above the dam.
04-1527 +++$+++ 19604 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, this --
04-1527 +++$+++ 19605 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, you think it's a different case if it's not a continuous motion; in other words, that the water is released -- you know, it's released on the weekends, but, during the week, it has to build up in the -- you would draw a distinction and say there's a discharge, in that case?
04-1527 +++$+++ 19606 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, the distinction we would draw would be when the exercise over the water, and the separation of the water from the river, reach the point where it could be said that we're no longer dealing with one unitary body of water, as that term is defined in Miccosukee. If we --
04-1527 +++$+++ 19607 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But this is an important point for me, and I wasn't quite clear what the briefs told me about it. My understanding was that there is an argument that when the water stays in the reservoir, the impoundment area, that there's a stratification, and the oxygen components at different levels change, so that when the water goes back into the dam, it's qualitatively different. It's the same water, in a sense, but it's also qualitatively different in its oxygen and other characteristics. And that sounded to me like a discharge.
04-1527 +++$+++ 19608 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The -- there is -- there is no dispute that when one changes the movement of water and its flow, then characteristics of the water can change. For example, in the impoundment area you can have not a change, overall, of temperature, but a stratification of warmer water going to the top, colder water going to the bottom. Similarly, you can have changes in other aspects of the water. All of those have been classified by the EPA as nonpoint source pollution. And it is undisputed that 401 does not cover nonpoint source solution -- pollution. So --
04-1527 +++$+++ 19609 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't --
04-1527 +++$+++ 19610 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, if --
04-1527 +++$+++ 19611 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't --
04-1527 +++$+++ 19612 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But is it --
04-1527 +++$+++ 19613 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, if it were established in this case that the water is qualitatively changed in a significant degree because of its oxygen component, that would be irrelevant to the question you're asking?
04-1527 +++$+++ 19614 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The water, as it comes into the dam and in the impoundment area, there is a -- there are findings, that we are not here challenging, that that water changes as it comes into the impoundment area. The discharge of that water -- that water then flows through the dam on its way down the river. There is nothing -- there is no nexus between the water exiting the dam and any of the changes that Your Honor has pointed to.
04-1527 +++$+++ 19615 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are you --
04-1527 +++$+++ 19616 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're saying the changes occur in the river, above the dam; and, therefore, what's left -- what's let back into the river below the dam is the same river, unchanged.
04-1527 +++$+++ 19617 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We're saying that the river flows continuously down. It changes at various points as it goes down a river. As it goes through rapids, a river changes. The nature of a river changes as it goes over rapids. As it comes --
04-1527 +++$+++ 19618 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now, let me just be sure I understand one point fully. But the character of the water is different above the dam and below the dam.
04-1527 +++$+++ 19619 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The character of the water --
04-1527 +++$+++ 19620 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought you agreed that there was a different -- a different oxygen content in the water.
04-1527 +++$+++ 19621 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The water -- take the -- Mr. Chief Justice's barrel of water that has not been removed from the river -- it comes down the river. It changes as it goes down the river. It is potentially changed in the impoundment area. It then flows through the dam.
04-1527 +++$+++ 19622 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No.
04-1527 +++$+++ 19623 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The same water that went into the dam --
04-1527 +++$+++ 19624 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but it's the same water, with a slightly different chemical composition, isn't that true?
04-1527 +++$+++ 19625 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's the same water that went into the dam as comes out of the dam.
04-1527 +++$+++ 19626 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But with a slightly different chemical composition.
04-1527 +++$+++ 19627 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Than it was further --
04-1527 +++$+++ 19628 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Am I correct --
04-1527 +++$+++ 19629 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- up the river.
04-1527 +++$+++ 19630 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- when I say that?
04-1527 +++$+++ 19631 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, you are.
04-1527 +++$+++ 19632 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you.
04-1527 +++$+++ 19633 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you said -- in response to Justice Kennedy's question, you said that there was nothing, I think, as you put it, in the exiting of the water that was significantly different that -- or that we could peg as significantly different. But that seems to me to be at odds with your answer to the Chief Justice's question about the barrel, because the exiting of the water from the barrel and the exiting of the water from the dam are exactly the same. And if one is a discharge, I don't see why the other isn't a discharge.
04-1527 +++$+++ 19634 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the difference, we would say, is that, in the barrel hypothetical, the water has been -- the water that is put into the river from the barrel that has been in someone's garage for 5 years --
04-1527 +++$+++ 19635 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then it isn't the exiting that you're getting at. And I --
04-1527 +++$+++ 19636 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we --
04-1527 +++$+++ 19637 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, it seems to me -- and I don't want to make a joke, but I think you're on to something when you talk about the exiting, because the word "discharge," as we commonly use it, is a word that describes how you get rid of something. And how you get rid of something, it seems to me, is exactly the same, whether you're pouring the barrel over the bank or whether pouring the barrel, as it were, through the turbine after impounding it, it is the -- everybody's been quoting dictionary definitions -- it's the "flowing out." The flowing out is the same with the barrel as it is with the dam.
04-1527 +++$+++ 19638 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The difference --
04-1527 +++$+++ 19639 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that seems to me where I have trouble with your argument.
04-1527 +++$+++ 19640 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Souter. The difference is the "discharge into." To have something "discharge into the river," you need something different than the river to go into the river.
04-1527 +++$+++ 19641 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, as I understand it, in some or all of these dams, at the point of discharge, there isn't any river down there. It's dry. It's -- the bed, in effect, has been deprived of the river by the impoundment, so that you're not simply, as it were, taking, you know, one spoonful out here and dropping it into a river -- putting the spoonful back into a river that's flowing there, because it isn't flowing there, as a result of your dam.
04-1527 +++$+++ 19642 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the -- if you accept the proposition that the river is divided into two different things, then you can start to talk about a discharge of one thing into the other. But Miccosukee makes clear that the structure of a dam does not keep us from viewing this as a single body of water which flows through a dam. It does not flow "into the navigable waters"; the navigable waters themselves flow through the dam.
04-1527 +++$+++ 19643 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Miccosukee assumed that -- the soup ladle example from the Second Circuit; you took out the ladle, you held it up, and you put the same thing back. But if I understand what happens as a result of the impoundment of the water and then its release, what comes out is quite different from what was put in. It's kind of like you had a pot boiling with vegetables, and then you put it through a food processor, and then what you got out would be quite different from what went into the food processor.
04-1527 +++$+++ 19644 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. And, again, we don't dispute that there are nonpoint source changes in the water as it flows down the river, before it goes through the dam. The water that then goes in and emits --
04-1527 +++$+++ 19645 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought the descriptions that we had was, it is a result of the impoundment and the subsequent release that the water emerges in this unnatural state, in this striated state that Justice Kennedy was referring to.
04-1527 +++$+++ 19646 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The -- it is the impoundment that changes the nature of the water.
04-1527 +++$+++ 19647 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And not the release. You contest that the release makes any change.
04-1527 +++$+++ 19648 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The release simply continues the flow of that water, albeit however it has been changed by mechanisms other than discharges into the river.
04-1527 +++$+++ 19649 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's true, but -- so, you said it's conceded in this case? I thought, in answer to Justice Kennedy, you said something that -- I was surprised, if it's conceded. I thought it wasn't conceded -- tell me if I'm wrong -- that the States have water quality standards. Those water quality standards may or may not have something to do with point source discharges. They don't have to. They want water to be good enough for recreation. They want water without algae so there are more fish. They have a lot of things. And this statute seems to say the F -- what used to be the FPC. I -- is it now FERC?
04-1527 +++$+++ 19650 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it is, Your Honor.
04-1527 +++$+++ 19651 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, okay -- used to be the Federal Power Commission -- tells them, "You have to get approval to build your dam. And we're not going to give you approval unless you comply with State water quality standards." This seems to me to go back into ancient history, like 1920. And of course you have to comply. And so, isn't the purpose of -- is there agreement that it only concerns point discharges, or does it concern water quality standards?
04-1527 +++$+++ 19652 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The consistent position of the EPA all along has been that 401 requires a discharge from a point source before it applies.
04-1527 +++$+++ 19653 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Really?
04-1527 +++$+++ 19654 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1527 +++$+++ 19655 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In other words -- discharge from a point source, what is -- well, then EPA concedes you win?
04-1527 +++$+++ 19656 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. EPA is claiming that the discharge from a point source occurs as the water exits the dam --
04-1527 +++$+++ 19657 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, fine.
04-1527 +++$+++ 19658 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- not in the --
04-1527 +++$+++ 19659 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, what's --
04-1527 +++$+++ 19660 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- impoundment.
04-1527 +++$+++ 19661 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the problem? So, they're saying, as I thought was true since 1920, that you're going to get your dam only if you comply with State standards, including standards about fish, algae, junk in the water, all kinds of things that might be put there by the dam.
04-1527 +++$+++ 19662 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- 401 is a triggering, or a threshold determination, as set forth in one of this Court's prior decisions, that gives the State not just a voice, but essentially a mandatory veto over a very broad area. The question in this case is, have we triggered -- have we stepped over that threshold? The point that there is no disagreement between the parties on is that to step over that threshold, to trigger 401, one has to have a discharge into the navigable waters --
04-1527 +++$+++ 19663 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right. And they're saying, "Of course there is a discharge. The discharge is a discharge of water." Okay? The water runs into it. Now, that's enough for you to have to comply with the State standards before the F- -- FERC is going to give you a license.
04-1527 +++$+++ 19664 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, their position is precisely that the water is running into the water.
04-1527 +++$+++ 19665 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now, have you got anything -- - I've heard you argue about the word "discharge"; and you say "discharge" doesn't mean "discharge of water," it means something else. And I think that's a very logical argument. Is there any other argument that you'd have, related to the purpose of the statute for the objective?
04-1527 +++$+++ 19666 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Let me refer to the purpose. There's -- as is always the case, there are general pronouncements about purpose. And the Respondents have taken those general pronouncements to basically say, "Anything that allows the States greater control or improvement over water quality is the direction in which the statute should be interpreted, to achieve that general purpose." However, we know that, notwithstanding the general purposes, that Congress, when it turned to approve specific words in 401, did not simply say "anything that affects water quality." It divided a line. And that line, for example, means that Federal permits for grazing, or Federal permits for logging roads, do not trigger 401; and they do not trigger it, because there is no discharge from a point source. So, we know a line has been drawn by Congress in pursuit of its purpose, as compared to other goals that Congress has in mind. The question is, Where was that line drawn? We think you look to the statute to see where that was drawn, and it was "discharge into the navigable waters." Otherwise, what we're left with is, we're left with trying to, sort of, almost metaphysically think of the water discharge -- the same water discharging into the same water in order to reach a conclusion that the real way you should read the statute is just as if it says, "If one does anything at all to the water, you need to get certification." And we don't think it says that. It would --
04-1527 +++$+++ 19667 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, Counsel, I keep thinking of this example, and I want you to comment on it. Out West, of course, there are a lot of dams where there are salmon in the -- in the river, going down, and a lot of salmon get killed if they go through the -- - through the dam, so that the water before the dam has live salmon, and the water after that has dead salmon. And say that happened in Maine. Would that be a discharge if that happened?
04-1527 +++$+++ 19668 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
04-1527 +++$+++ 19669 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If there were live fish --
04-1527 +++$+++ 19670 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1527 +++$+++ 19671 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- above the dam, and they all -- they get killed going through the dam, and they were dead when they --
04-1527 +++$+++ 19672 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1527 +++$+++ 19673 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- came out, would that be a discharge in --
04-1527 +++$+++ 19674 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Actually, the record here would indicate that that -- that could happen with some eels, not salmon.
04-1527 +++$+++ 19675 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-1527 +++$+++ 19676 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So, your point is well taken, Justice Stevens. The fish that, as the water flows through the dam, may be killed by coming in contact with, and getting hit by, the turbine, are not discharged into the water; they're in the water as it goes into the dam, they're killed as it goes through the dam, they remain in the water. The dam discharges nothing. It puts nothing --
04-1527 +++$+++ 19677 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, you would say --
04-1527 +++$+++ 19678 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- into the river.
04-1527 +++$+++ 19679 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- even in that case, that would not be a statutory discharge.
04-1527 +++$+++ 19680 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. We think that --
04-1527 +++$+++ 19681 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Counsel, you don't dispute that FERC could impose the same conditions that Maine has imposed in this case, as a matter of FERC authority.
04-1527 +++$+++ 19682 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly. And we would --
04-1527 +++$+++ 19683 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Could they even impose something in the condition to your hydroelectric power license saying, "You must comply with State water quality standards"?
04-1527 +++$+++ 19684 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think they could -- I'm not sure they could word it that way, but they could effectively -- FERC could effectively do it. In effect, Congress has told FERC that in a -- in a Federal -- in a FERC proceeding, it not only has to listen to the State, but it has to give considerable consideration to the State's arguments. And it has to --
04-1527 +++$+++ 19685 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, you're concerned about conditions -- I mean, as a practical matter, in terms of how the result in this case would change things, it's a question of whether FERC has to more or less accept what the State does, or whether FERC simply considers and decides whether it wants to impose those conditions.
04-1527 +++$+++ 19686 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. And it's a very substantial issue, because essentially what FERC proceedings are -- under the hydropower sections of FERC, essentially what they are is environmental proceedings, where there's a determination made about water quality issues that are then balanced off against energy issues. If the -- under prior interpretations, the 401 powers have become quite robust. If we now take the threshold of "discharge into the navigable waters," and interpret that in a way so it essentially applies in all situations, FERC proceedings essentially will be a mail office, where they receive the conditions from the State and have no choice but to file them -- follow them. Our position is that Congress intended to leave some room --
04-1527 +++$+++ 19687 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You would rather be regulated more aggressively by FERC than by the Maine Board of Environmental Protection.
04-1527 +++$+++ 19688 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. It would have a uniform national energy and environmental policy, in that respect. And we believe that -- Congress, in '86, clearly thought that's what we had. That's the -- it would make no sense, in Congress in '86, to order FERC to give weight to what the States say in these situations if what we're now told is, "Congress was wasting your time, because the States already had a mandatory veto on all of these issue -- issues in every single situation with respect to every single hydropower licensing" --
04-1527 +++$+++ 19689 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does FERC --
04-1527 +++$+++ 19690 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- "proceeding."
04-1527 +++$+++ 19691 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- as a regulator, tend to give greater priority to power considerations, as opposed to local environmental concerns?
04-1527 +++$+++ 19692 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There was some concern prior to '86 by Congress that FERC was doing just that. And that's why Congress told, in 1986, long after the statute was passed, that FERC has to make specific findings if it disagrees with the State. Additionally, Congress gave to the Department of Interior, under section 18, certain powers to dictate to FERC, for example, fish passages. FERC has no choice on those. So, Congress -- this reference to cooperative federalism clearly was in Congress's mind, but it wasn't a cooperative federalism in which, on all issues in all proceedings, all the State needed to do is tell FERC what to do. But they --
04-1527 +++$+++ 19693 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, no, but it doesn't -- it doesn't say -- it says they have to comply with State water quality standards, doesn't it?
04-1527 +++$+++ 19694 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It doesn't -- Congress did not order, in 1986, FERC to always comply in all situations --
04-1527 +++$+++ 19695 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, I thought -- it says that you have to get your permit. You have to be compliant with State water quality standards. Now, suppose a State has a nutty water quality standard. Doesn't EPA have some authority there to make sure that a water quality standard of a State, under the Clean Water Act, is -- makes sense?
04-1527 +++$+++ 19696 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, EPA has some authority with respect to any State water quality standards that are less stringent than EPO's -- EPA's own requirements. It's not clear that EPA, under the Act, has the ability to go beyond that. Moreover, it's -- if --
04-1527 +++$+++ 19697 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In other words, if a State were to say, "Our water quality standard is the following. We never build a dam in our State, no matter what." Okay? Now, there's no authority in the EPA to set that aside as it not being a proper Clean Water Act standard.
04-1527 +++$+++ 19698 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If this decision is --
04-1527 +++$+++ 19699 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It has to be just a Clean Water Act standard.
04-1527 +++$+++ 19700 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1527 +++$+++ 19701 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm not an expert on the Clean Water Act. Is that a proper Clean Water Act standard?
04-1527 +++$+++ 19702 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If this decision is affirmed, then you will have precisely held --
04-1527 +++$+++ 19703 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, this decision -- I'm not asking you about this decision. I'm asking you if a State, under the Clean Water Act, were to say, "We have the following Clean" -- now you understand what I'm --
04-1527 +++$+++ 19704 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1527 +++$+++ 19705 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does EPA, or anyone else, have authority to say, "That isn't a proper Clean Water Act standard, however good you may think it is"?
04-1527 +++$+++ 19706 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know, Justice Breyer, about the wording posed in your hypothetical, so I can't answer the wording. I can say this, that effectively the States can do precisely that by simply saying, "We want the river water quality to be like X, and X is inconsistent with there being any dam at all on the river." So, indeed, if this decision is affirmed, it truly does mean that States can entirely dictate everything having to do with any environmental aspects of dams, including to the point of requiring that the dams not operate; and FERC can do nothing about it. We do -- we do not see how that would leave any sense of cooperative federalism, and it would tell Congress, "In 1986, you were just entirely wasting your time, because you had already, in '72, given them the power to control everything."
04-1527 +++$+++ 19707 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, has FERC said that this is a problem, that the States are interfering?
04-1527 +++$+++ 19708 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, FERC has sort of been all over the place. They're sort of the odd man out, because it's their jurisdiction that's being taken away; and yet we're talking about a Clean Water Act case where EPA is the agency defined with that Act. FERC has argued to the courts, on several occasions, that 401 needs to be limited to discharge of pollutants. FERC, at one point, the first several dam proceedings that came up, it didn't even require certifications at all. It then promulgated certification requirements that said, "Either get a certification or otherwise comply with the law." And then, in the interim period, it is simply -- as we've been affected, simply said, "Go get your certifications." It then tried to say, "But we can do something about it if we don't like them." And the Circuit Courts, at least one, has said, "No, you can't." And when 401 applies, as this Court found in Public Utility Districts versus Jefferson, it is a robust power. It is an awesome power that is given to the States under 401. And to -- giving that power greatly cabined-in FERC's authority to now extend that power automatically to any conduct that in any way "touches on the water" by turning "touches on the water" or "moving the water" into "discharge into the water" -- effectively wipes out that balance entirely. I would note, too, that we don't even -- we can answer all of this without even getting into those by going back to the statute. We have a statute here that uses the word "discharge," in one form or another, on 421 occasions in 37 different sections of the statute. With the exception of the section that deals with the discharge of employees -- not into the river -- - and the discharge -- [Laughter.]
04-1527 +++$+++ 19709 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and the discharge of board duties, in every single one of those instances, as you thumb through the statute, Congress is always clearly talking about "putting something into the water." There is no doubt. On the one occasion in the statute --
04-1527 +++$+++ 19710 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I don't understand, linguistically, why this isn't "putting something into the water," to the extent the dam holds back and restrains the water, then it "puts back into the water" the water that it had held back.
04-1527 +++$+++ 19711 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the water slows down, meanders around, as it would in an eddy, and continues on through the dam, down the river. If you take a water molecule, it comes down, goes through and out. If -- unless you get --
04-1527 +++$+++ 19712 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Here's -- I'm thinking of the Hoover Dam, and it's got these huge, you know, discharge points.
04-1527 +++$+++ 19713 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1527 +++$+++ 19714 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And every now and then they let the water come out. Isn't that a discharge?
04-1527 +++$+++ 19715 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- I would say, in an ordinary dictionary definition, if you stand below the Hoover Dam and look up at it, you would say, "Water is emitting from the dam. Water is discharging from the dam," in an ordinary dictionary definition. I would agree with that. What I'm saying, though, is that if you keep in mind that it's not a reservoir emitting into a river, but it's a single river flowing through the dam, that water is not "discharging into" that water. That's what we're saying.
04-1527 +++$+++ 19716 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would it be fair to say that, let's say, the Missouri River discharges into the Mississippi? Is that consistent with ordinary usage?
04-1527 +++$+++ 19717 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If you have two water bodies, then you could have one discharging into the other. Yes, Your Honor.
04-1527 +++$+++ 19718 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But they're two water bodies, only because people gave them two different names.
04-1527 +++$+++ 19719 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in Miccosukee, the Court actually go into that and set forth -- in fact, remanded the case to decide whether the aquifer was one water body or two. If you look at that remand, it's absolutely clear that this water body, under any standard discussed in that opinion, would be a single water body. And the United States agrees with us on that. The United States agrees we're talking about a single water body here.
04-1527 +++$+++ 19720 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the --
04-1527 +++$+++ 19721 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I could --
04-1527 +++$+++ 19722 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the statute doesn't say "discharge from one water body into another water body." It says "discharge into the navigable waters."
04-1527 +++$+++ 19723 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1527 +++$+++ 19724 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And if the portion of the river below the dam is a navigable water, why is there not a pouring forth of the water into the navigable waters below the dam?
04-1527 +++$+++ 19725 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if one thinks of upstream waters and downstream waters, it -- our view is that upstream waters simply become downstream waters as they flow through the dam. One doesn't discharge into another. I would -- I would concede that very bright people working very hard with virtually any words in the English language can find some way to reach a point to say that perhaps something fits something. But, at some point -- at some point, I think we need to ask, is -- if Congress uses the same word throughout the statute to always mean putting something into water, then how do we get to the conclusion that what that really means is doing anything to the water is always -- - because --
04-1527 +++$+++ 19726 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, isn't --
04-1527 +++$+++ 19727 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the --
04-1527 +++$+++ 19728 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- isn't the answer to your question that a great number of those usages that you refer to are uses that refer to the discharge of pollutants? And there is a good -- there are good reasons in the statute -- and we have recognized them -- - to say that when you discharge a pollutant, you are adding something that wasn't there before? But when the statute, in this case, is using "discharge" without a reference to "pollutant," it makes perfectly good linguistic sense to construe it just as the Court has done.
04-1527 +++$+++ 19729 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well it makes -- it is linguistically logical to say that we're, therefore, going to assume that a pollutant is not needed here. But when Congress has replaced the "discharge of a pollutant" with a "discharge into," it seems to me Congress has actually moved in the other direction of reinforcing that we're talking about --
04-1527 +++$+++ 19730 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, maybe it's --
04-1527 +++$+++ 19731 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- putting something into the water.
04-1527 +++$+++ 19732 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- "reinforcing," and maybe it's "changing." I mean, you're characterizing it one way. We start with a different canon of meaning, and that is that we look to the words around which, in connection with which, the word is used. In here, it's being used without certain modifiers or descriptive conditions. In other cases, it is being used with them. And that's a good reason to think that probably the word is intended to mean something different in those situations.
04-1527 +++$+++ 19733 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would -- I would hesitate, Justice Souter, to go from taking a specific word, like "discharge," and, therefore, saying that it meant something that is both more general and much more easily set.
04-1527 +++$+++ 19734 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but your argument, I thought, was simply this, that it uses "discharge" in, you know, X number -- I forget how many you had -- and it's perfectly clear that in most of those instances it requires an addition; and, therefore, it should be construed as requiring it here. My point was that in a great many of those instances, the statute is not merely using the word in isolation; it's using it in connection with a couple of other words, like "discharge a pollutant." And it, therefore, number one, makes sense to construe "discharge of a pollutant" differently from "discharge." That's the -- that's the only point.
04-1527 +++$+++ 19735 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1527 +++$+++ 19736 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The only point is, you can't simply argue from the fact that the word occurs somehow X number of times to the conclusion that it has to mean the same thing every time it's used.
04-1527 +++$+++ 19737 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree with you. And my point is, I am including instances not just in which "pollutant" is used. A whole variety. And, in every single one of those, its common -- and I would submit that the word itself, when you use the word "into," naturally suggests -- in fact, why would someone use the phrase "discharge into the navigable waters" if what they really meant was, "If you do anything to the navigable waters at all, you've got to get a permit"?
04-1527 +++$+++ 19738 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Because that isn't what they mean. I mean, for example, if somebody puts a stick in the middle of the river, no one -- no one is claiming that the water that flows around the stick is being discharged. I mean, there are a lot -- I don't know whether anyone wants to put a stick in the river, but -- -
04-1527 +++$+++ 19739 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1527 +++$+++ 19740 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- there are things you can do that clearly would not activate the Corps' interpretation here.
04-1527 +++$+++ 19741 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- this logic, I think, would probably include virtually anything you do to the water, because it would separate the water, the water going around the stick. One would then say the dictionary definition means it's then discharging back into itself on the other side of the stick. There would be, perhaps, no water quality concerns, but 401 doesn't say "water quality concerns"; it says "discharge into."
04-1527 +++$+++ 19742 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would you agree that if the -- if somebody with property on each side wanted to build a dam -- I'm sorry, wanted to build a bridge to connect his property, and he needed to put a post in the middle of the river to support the bridge, that there would be no discharge of water occasioned by putting the post in there?
04-1527 +++$+++ 19743 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under the Government's interpretation, there would be. There would be a discharge into the navigable waters in that situation.
04-1527 +++$+++ 19744 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why, if -- you may answer.
04-1527 +++$+++ 19745 +++$+++ TRUE +++$+++ MR. KAYATTA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the post -- to put -- well, in the first place, putting the post in might, itself, be a -- what we could concede to be a discharge. In the second case, though, is that we understand that you would be exercising control over the flow and direction of that water, it would separate the river into two portions -- of course, small. But if we're pursuing this line of logic that the Government has to its final extent, it would then discharge back into itself on the other side of that post.
04-1527 +++$+++ 19746 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Counsel. General Rowe?
04-1527 +++$+++ 19748 +++$+++ FALSE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The flow of water through Petitioner's dams into the Presumpscot River is a discharge, under section 401(a) of the Clean Water Act. This finding is supported by the plain text of section 401(a), the purpose, the history, and the structure of the Clean Water Act, in more than 30 years of administrative practice and agency interpretation. Under the Clean Water Act, Congress --
04-1527 +++$+++ 19749 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is there a --
04-1527 +++$+++ 19750 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- requires --
04-1527 +++$+++ 19751 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is there a discharge if you have a simple waterwheel in the river? Is that a discharge?
04-1527 +++$+++ 19752 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, first of all, Your Honor, for 401 to apply there must be a federally licensed activity. In that case --
04-1527 +++$+++ 19753 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, so it's a old hydroelectric plant, it uses a simple waterwheel. I mean, is that -- does that fit your definition of a "discharge"? In other words, it restrains the water temporarily.
04-1527 +++$+++ 19754 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-1527 +++$+++ 19755 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And then it releases it again as it passes by the wheel.
04-1527 +++$+++ 19756 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. It --
04-1527 +++$+++ 19757 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, if you put a waterwheel in a flowing river, under your definition, that's a discharge into the navigable water.
04-1527 +++$+++ 19758 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could, Your Honor. It could discharge. It depends on the actual circumstances. Obviously, under the doctrine of de minimis non curat lex, it may not pose any problems, and it wouldn't be an issue. But certainly to the extent that it used the water and then it discharged the water, there was emitting out or flowing out. If you put a fishnet in the river, there would be no discharge. Justice Souter's example of a simple -- a post, probably no discharge. But if you put a hundred-foot -- a post 100 foot in diameter into a 200-foot-wide river, then you may have a discharge. So, Your Honor, I would suggest it depends on the circumstances. But, remember, 401 does require it to be a federally licensed project. The point I was going to make, Your Honor, is that, under the Clean Water Act, Congress requires States to adopt clean water standards --
04-1527 +++$+++ 19759 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I must say, this --
04-1527 +++$+++ 19760 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- water quality standards.
04-1527 +++$+++ 19761 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- this doesn't seem to me normal usage. I don't think if -- you know, if you see a rapids in a river, it would be strange to say the rapids of the Colorado "discharge" into the Colorado. You're usually talking about a different body of water. You could say the Green River discharges into the Colorado. Likewise, a waterfall, you wouldn't say, you know, "The waterfall on this river discharges into the river." It's part of the river. But if it were a waterfall that brought a tributary into the river, you would then say that, you know, "the waterfall discharges into the Colorado," or whatever river it enters at that point. It seems to me very strange to talk about a river discharging into itself.
04-1527 +++$+++ 19762 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, it's not strange at all. It's not -- it's discharging from the activity into the river. The water goes into the activity. The activity, in this case, is a -- an impoundment. There are five impoundments. These dams create impoundments. One's 197 acres --
04-1527 +++$+++ 19763 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But that doesn't -- but that --
04-1527 +++$+++ 19764 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in size.
04-1527 +++$+++ 19765 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But that doesn't matter to your analysis. It's the one post, right? I mean, if you have just sort of a foot indentation on either side, would -- the flows, in -- under your view, suddenly becomes a discharge.
04-1527 +++$+++ 19766 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, my point is, that's not the case we have. We're talking about a hydroelectric dam here.
04-1527 +++$+++ 19767 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, but --
04-1527 +++$+++ 19768 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-1527 +++$+++ 19769 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- we're trying to --
04-1527 +++$+++ 19770 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-1527 +++$+++ 19771 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- define --
04-1527 +++$+++ 19772 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand, Your Honor.
04-1527 +++$+++ 19773 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- a statutory term that's going to apply in a wide variety of cases.
04-1527 +++$+++ 19774 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. In that case, Your Honor, I've said it could cause a discharge -- if the flow was interrupted, the flow regimen of the river, to such an extent that it -- that it increased, substantially, the flow on one side, and that was a federally licensed activity, then 401 would apply. It would be a discharge from the activity. Now, I'm -- again, I'm using the de minimis rule here. But what we have here, Your Honors, is a dam, we have the water being diverted into a power canal, then dropping down onto the top of the turbines. The turbines are using the water, they're taking the energy from the water to turn the turbine, and then the water is being released.
04-1527 +++$+++ 19775 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, what's --
04-1527 +++$+++ 19776 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's being discharged.
04-1527 +++$+++ 19777 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, what's the definition -- - what's the general definition that you're giving us that describes this result you've given?
04-1527 +++$+++ 19778 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice --
04-1527 +++$+++ 19779 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It --
04-1527 +++$+++ 19780 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Kennedy --
04-1527 +++$+++ 19781 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It is a discharge, because a "discharge" means what?
04-1527 +++$+++ 19782 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It means a flowing or issuing out. It's the -- it is the dictionary definition. Mr. Kayatta mentioned the Hoover Dam. It is that. That's what it is. It's the --
04-1527 +++$+++ 19783 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But the --
04-1527 +++$+++ 19784 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- ordinary definition.
04-1527 +++$+++ 19785 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- the issue is not whether there is a discharge, as I see it. The issue is whether there's a "discharge into the river." And one does not usually speak of the "river discharging into itself." That -- it's the "into" that's the crucial part. How do you distinguish this case from Miccosukee, if I'm saying it right? -- yes, Miccosukee --
04-1527 +++$+++ 19786 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, Miccosukee --
04-1527 +++$+++ 19787 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- where we had, you know, a pumping of water from one polluted body into another, and it was held -- we held that that was not a discharge?
04-1527 +++$+++ 19788 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the -- in Miccosukee, that was a section 402 case.
04-1527 +++$+++ 19789 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It --
04-1527 +++$+++ 19790 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It dealt with discharge of a pollutant.
04-1527 +++$+++ 19791 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's right.
04-1527 +++$+++ 19792 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And this --
04-1527 +++$+++ 19793 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But the crucial --
04-1527 +++$+++ 19794 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Court held --
04-1527 +++$+++ 19795 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- word was "discharge." The reason we held it was not covered is not because there was no pollutant. It was clear that there was a pollutant. But we held there was no discharge.
04-1527 +++$+++ 19796 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, you held that there was no discharge of the pollutant. You held that it was --
04-1527 +++$+++ 19797 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Because there was no discharge of a pollutant. There were pollutants in -- - on both sides. That -- I think that was conceded in the case. The reason that the case came out the way it did was that we held there was no discharge of a pollutant.
04-1527 +++$+++ 19798 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But there -- Your Honor -- Your Honor, in that case, it required a discharge of a pollutant from a point source. The definition of "discharge" in section 401 is much broader.
04-1527 +++$+++ 19799 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Wasn't it conceded that there was a pollutant -- that a pollutant was involved in that case?
04-1527 +++$+++ 19800 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your -- yes, Your Honor, but the -- -
04-1527 +++$+++ 19801 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, what must have been the difference was that there was no discharge.
04-1527 +++$+++ 19802 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was no discharge of a pollutant, Your Honor.
04-1527 +++$+++ 19803 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There was no discharge of anything. It was clear that if there was a -- if there was a discharge, it was a discharge of a pollutant.
04-1527 +++$+++ 19804 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, in -- with all due respect, in that case -- and, in that case, you joined Justice Thomas in saying, "The term 'discharge' is not defined in the Clean Water Act, but its plain and ordinary meaning suggests a flowing or issuing out, or something that is emitted." In the case we have here, something is emitted. It is water. It is emitted from a facility. We have a federally licensed facility. And out of the turbines comes water, and it flows into the river. Miccosukee was a 402 case, Your Honor, with all due respect. And, in another point, I --
04-1527 +++$+++ 19805 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Didn't -- didn't that case involved the -- a violation there -- involve the addition of a pollutant? And there was no addition of a pollutant, because the water was equally polluted on each side. Wasn't that the --
04-1527 +++$+++ 19806 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
04-1527 +++$+++ 19807 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- the case?
04-1527 +++$+++ 19808 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
04-1527 +++$+++ 19809 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-1527 +++$+++ 19810 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The pollutant was already in the water when it -- when it entered -- the water from the pipe. And the point that Justice Ginsburg's mentioned, the quote, is, if one takes a ladle of soup from a pot, lifts it up above the pot and pours it back into the pot, one has not added soup or anything else to the pot. Section 401, the word "discharge" in that section does not require an addition of anything. It can be --
04-1527 +++$+++ 19811 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, then -- but your focus -- in response to my question about what would constitute release, you focused on the fact of impoundment, a restriction of the flow. It seems to me that the ladle analogy that the Court has made part of the law of the land is -- refutes that, because if it's hold -- you're holding it up in the ladle, that's like an impoundment. You've separated it, to that extent, from the other body, and the Court said, when you pour it back in, that's not --
04-1527 +++$+++ 19812 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It wasn't --
04-1527 +++$+++ 19813 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- that's not a discharge of a pollutant --
04-1527 +++$+++ 19814 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Mr. Chief --
04-1527 +++$+++ 19815 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- and there was no dispute that there were pollutants, so it must mean it wasn't a discharge.
04-1527 +++$+++ 19816 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, the Court didn't say that there was no discharge; the Court said that there was no addition of soup or anything else into the pot. The point is, there was not the addition of a pollutant. And you do not need the addition of a pollutant to find a discharge, under section 401. I just want to remind the Court that section 401 came from section 21(b) of the Water Quality Improvement Act of 1970. That was the old section 401. It said, "Anytime that there's a licensed activity that's going to create a discharge from a facility into navigable waters, then the States are to enforce their water quality standards." Congress requires States to adopt water quality standards, according to section 303. And we have. All States have. And those water quality standards are consistent. We have designated uses, water quality criteria, and an antidegradation policy. The Court should know that, as part of our designated uses, hydropower is one of those. The State values hydropower. We understand the importance of it.
04-1527 +++$+++ 19817 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you --
04-1527 +++$+++ 19818 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Most --
04-1527 +++$+++ 19819 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- you don't -- you don't value it as much as FERC does, though, do you?
04-1527 +++$+++ 19820 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I don't know. [Laughter.]
04-1527 +++$+++ 19821 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You heard -- Your Honor, you heard earlier --
04-1527 +++$+++ 19822 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I mean, isn't one way to look at this -- I mean, the concern is that your constituents probably have a higher priority and a greater concern with the environmental consequences of generating power, while FERC's priority is to make sure that we have sufficient power. And you're likely to weigh these competing uses in very different ways.
04-1527 +++$+++ 19823 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, you heard earlier about the -- 1986, the Electric Consumers Protection Act. That did require FERC to give equal consideration to the protection of the environment with respect to the production of -- hydropower production. But the States have a responsibility given to them by Congress. The States have the primary responsibility for the prevention, for the reduction, and for the elimination of pollution. The way we enforce that is through our water quality standards. And so, the only way we can enforce those standards with respect to federally licensed facilities is section 401. And if you should take that from us, it will create a gaping hole in the Clean Water Act.
04-1527 +++$+++ 19824 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, only if you assume that letting out the same water into the same river is pollution. It seems to me you're begging the question.
04-1527 +++$+++ 19825 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
04-1527 +++$+++ 19826 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You --
04-1527 +++$+++ 19827 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the --
04-1527 +++$+++ 19828 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If there were a discharge of something into the river, you'd be able to move against it. But the question here is whether there's any discharge into the river when you stop the river and then let the same river out.
04-1527 +++$+++ 19829 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the "pollution," as defined in the Clean Water Act, is the alteration of the physical, chemical, and biological integrity of the water. That's the pollution. The reason 401 exists, and the reason "discharge" is used broadly, and it's the trigger for the section to work, is because you look at the impacts of that activity on the environment. You look at the physical integrity -- Has it been altered? -- the chemical integrity, the biological integrity. We look at things like the impact on aquatic ecosystems, the thermal stratification in the impoundment areas, whether there is lower dissolved oxygen. And certainly we look at the fish migration issues. Has there been blockage?
04-1527 +++$+++ 19830 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Could you, as Justice Breyer's question to your adversary suggested, adopt water quality standards that would make any hydroelectric power impossible, in Maine?
04-1527 +++$+++ 19831 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we could. We have a number of classes of rivers. With respect to one class, that is not a designated use. With respect to all the others, hydropower is the designated use.
04-1527 +++$+++ 19832 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you think that's something that Congress intended when they adopted this, to allow a State to rule out hydroelectric power?
04-1527 +++$+++ 19833 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Alito, Congress did not give the States unbounded authority. Indeed, in section 401(d), there is a restriction. It restricts the conditions to those necessary to assure that the applicant will comply with conditions in our water quality standards. And if -- I mean, FERC does incorporate those standards into the license, but the applicant can redress that in court, as this one has. So, we -- I want to mention, again, that States care about hydropower. We care about fish migration. We care about recreation activities. We care about all of these things, and they're all incorporated into our water quality standards.
04-1527 +++$+++ 19834 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, I take it your ultimate answer is, no, a State could not, in effect, eliminate hydropower from --
04-1527 +++$+++ 19835 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your --
04-1527 +++$+++ 19836 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- development.
04-1527 +++$+++ 19837 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Your Honor, in our State it's a designated use --
04-1527 +++$+++ 19838 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm sorry --
04-1527 +++$+++ 19839 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- on most of our rivers.
04-1527 +++$+++ 19840 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm not interested -- I'm asking for an answer to my question. I take it, based on your further answer to Justice Alito, that your answer to the first question is, no, a State could not, in effect, eliminate all hydropower from -- development from its rivers.
04-1527 +++$+++ 19841 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your -- Justice Souter, a State -- a State could do that if it changed the designated uses for its rivers. But in the State of Maine, as in 45 States --
04-1527 +++$+++ 19842 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And you don't think there would be any conflict with the FERC scheme if you did that? You don't think there would be any conflict between the Federal policy embodied in the Power Act and in the State law?
04-1527 +++$+++ 19843 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, again, I want to -- under the Clean Water Act, the States have primary responsibility for the reduction and for the elimination and --
04-1527 +++$+++ 19844 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, I --
04-1527 +++$+++ 19845 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- prevention of pollution.
04-1527 +++$+++ 19846 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- I think the question -- maybe it just -- I don't understand, totally, how the Clean Water Act works, but I thought that what we're talking in this statute is a State rule that's called the State Clean Water Act rule. It's a creature of the Clean Water Act, isn't it? A water quality standard?
04-1527 +++$+++ 19847 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-1527 +++$+++ 19848 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. And, therefore, a State, I would think, that had some totally bizarre Clean Water Act standard might find that it had a standard that didn't fit within the scope of the Clean Water Act. And, therefore, it wasn't going to be enforced here. Is that right, or not right? Maybe the Federal Government will explain this --
04-1527 +++$+++ 19849 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I'm sure the Federal Government will also address this question, but the parameters of the water quality standards are addressed in section 303 of the Clean Water Act. And there are parameters in there. And the States' Clean Water -- or water quality standards must conform to those standards. We submit our Clean -- our water quality standards --
04-1527 +++$+++ 19850 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are they maximums or minimums?
04-1527 +++$+++ 19851 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, it's simply categories in there. We submit --
04-1527 +++$+++ 19852 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I expect that they're minimums.
04-1527 +++$+++ 19853 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We -- well, they are minimums, Your Honor. We submit these to the EPA. The EPA approves the State water quality standards, and then those standards are how we evaluate these federally licensed activities as to whether they're in compliance or not. And they determine the certification, whether it's issued, and if it's issued, with what conditions. If a State -- if a State's rivers were not conducive to hydropower -- the question you asked, Your Honor was -- Justice Souter -- could a State prevent hydropower from occurring? Again, we have, with respect to a few rivers in the State of Maine; but most of the rivers, it is a designated use, because States, like the Federal Government, value hydropower. There is no air pollution. It's a clean source of energy. We value it. And, indeed, the antidegradation policies that are part of our water quality standards require us to look at the impact on Petitioner's dams, the power output that's going to be -- going to -- is going to result from these various conditions that we impose as a part of our certification.
04-1527 +++$+++ 19854 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ General Rowe, may I ask this question? In the Miccosukee case, we sent the case back, as you remember, to decide whether or not there were one body of water or two bodies of water. In your view, are there one or two bodies of water -- would it be five bodies of water -- in this case?
04-1527 +++$+++ 19855 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's one body of water, Your Honor -- Justice Stevens.
04-1527 +++$+++ 19856 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, you --
04-1527 +++$+++ 19857 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that's the --
04-1527 +++$+++ 19858 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- concede that.
04-1527 +++$+++ 19859 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that's the --
04-1527 +++$+++ 19860 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-1527 +++$+++ 19861 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Presumpscot River.
04-1527 +++$+++ 19862 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-1527 +++$+++ 19863 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All the water is waters of the United States, navigable waters, but the water is being discharged from the facility into the navigable waters. You -- Your Honor has mentioned a storage dam. A storage dam creates an impoundment. In fact, one of these dams has a 50-foot-high wall that holds the water back, almost 200 acres of water. At times, there is water that goes over the top of the dam. That is, indeed, a discharge. It is caused by the activity. It results from the activity. It's not the free-flowing water. And I want to make that clear. I think, Justice Scalia, your question was -- that's not a discharge. That's a natural flow of water. What's happening here is, the flow is being altered. Because of the impoundment, because of the diversion, the flow is being altered. And in the case at hand here, you're actually taking a turbine, the water drops down into the turbine, turns the turbine blades or fans, it absorbs the water of its power, and then the water is released, discharged, into the tailrace channel, into the natural river.
04-1527 +++$+++ 19864 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, any significant obstruction in the river amounts to a -- creates a discharge.
04-1527 +++$+++ 19865 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I'd -- no, Your --
04-1527 +++$+++ 19866 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Indeed, if it's a small enough stream, I suppose just swimming in it or lying sideways so you impede the flow, you are causing a discharge into the waters of the United States. I find that peculiar.
04-1527 +++$+++ 19867 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- Justice Scalia, that's not what I said. The question was asked about a post, like a bridge, the pilings for a bridge. In certain cases, depending on the size, it might result in a discharge. I'm not saying every -- a stick in the river is, certainly not a swimmer. We have a de minimis rule. We're not saying that. It needs to be --
04-1527 +++$+++ 19868 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it depends on how big the river is, doesn't it?
04-1527 +++$+++ 19869 +++$+++ TRUE +++$+++ MR. ROWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm -- if it's navigable waters, and you have a huge post that's holding up a bridge, there could be a -- there -- and it's federally licensed -- there could be a discharge resulting from that. I mean, I -- that is what a person would say, "There is a discharge," because suddenly you see -- where water was naturally flowing, you see a diversion, in an impoundment, of sorts, moving the water over. But what we have here is not that case. What we have here is an impoundment. We have the water being diverted into a narrow channel, dropping down onto these turbines, being used, and then being discharged into the river. The word "discharge," again, in 1970, under the 21(b), was given a broad definition. 402 and 404 came later, in 1972, as part of the Clean Water Act. In those, we're dealing with discrete conveyances of pollutants, 402. And 404 was dredge or fill discharge. And those were deemed necessary. But they're consumed in 401. In other words, if you get a 402, if you need a 40- -- a 402 application, certification, you also will need a 401. 401 deals with the effects of pollution, the effects of the activity on the environment. I thank Your Honors very much. And I just want to remind the Court that the State very much values the power -- the importance of hydropower. We value the -- our responsibility, as given to us by Congress under the Clean Water Act, to be the primary enforcer of our water quality standards. And the only way we can do that, with respect to federally licensed facilities, is section 401. Thank you very much.
04-1527 +++$+++ 19870 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, General Rowe. Mr. Minear.
04-1527 +++$+++ 19872 +++$+++ FALSE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The United States submits that the operation of Petitioner's hydropower facilities results in a discharge into the navigable waters within the meaning of section 401 of the Clean Water Act. section 401 uses the term "discharge" in its ordinary sense to mean a "flowing out" or "issuing out." The facilities at issue in this case, which divert water, impound it, and then release it, produce a flowing or issuing out of that water into the navigable Presumpscot River.
04-1527 +++$+++ 19873 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Section 402 uses "discharge" in the same sense, I assume.
04-1527 +++$+++ 19874 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it does not, Your Honor.
04-1527 +++$+++ 19875 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why doesn't it?
04-1527 +++$+++ 19876 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because it uses the term "discharge of a pollutant," which is --
04-1527 +++$+++ 19877 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes --
04-1527 +++$+++ 19878 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- which is defined, under the Clean Water Act, as a statutory term of art, to mean the addition of a pollution -- of a pollutant from a point source. On the other hand, the Clean Water Act interprets or defines "discharge" to include the "discharge of a pollutant." So, it's clear that the term "discharge" is broader than the term "discharge of a pollutant," and does not include the requirement of an addition.
04-1527 +++$+++ 19879 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It is -- it is broader. But if -- the discharge of a pollutant into the same body of water does not constitute the addition of a pollution -- of a pollutant. It obviously is the addition of a pollutant. The only reason you could say that taking it from one -- pumping it from one polluted body to another is not a discharge of a pollutant, which is what we said in Miccosukee, the only basis for saying that is that there has been no discharge. There's obviously been an addition of a pollutant to the -- to the other body of water. The only thing you can say is, there hasn't been a discharge. It's -- because it's the same body of water.
04-1527 +++$+++ 19880 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I respectfully disagree, Your Honor, because, in Miccosukee, it addressed the specific question of whether or not there is an addition. And, in the much-quoted soup-ladle example, what it was talking about, in that instance, was taking a ladle of soup, removing it from the pot, and adding it back. The pouring back of the soup into the pot is a discharge, it's a flowing or issuing out. It's not an addition, because nothing is being added to the soup. Now, in this case, we're using the term "discharge," not "addition." And there is, obviously, a flowing or issuing out from the dam. Anyone who goes and observes a dam, and sees the water leaving the dam, will say that's a "discharge." That's common parlance. It's been repeated numerous times in this Court's own decisions in describing dam operations. Furthermore --
04-1527 +++$+++ 19881 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In other words, Miccosukee was concerned not with molecules, but with chemical composition. The chemical composition was the same in this body and in that body, and, in that sense, there was no addition --
04-1527 +++$+++ 19882 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct --
04-1527 +++$+++ 19883 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, that --
04-1527 +++$+++ 19884 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that there was no transmission.
04-1527 +++$+++ 19885 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-1527 +++$+++ 19886 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I think, Justice Souter, you are right in focusing on the exiting from the dam and why discharges are important here.
04-1527 +++$+++ 19887 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If, in Miccosukee, liquid of the same composition had been taken from another body of water, and from -- not the body of water that was adjacent and which we held was the same body of water -- - with the same composition, and that had been added, do you think Miccosukee would have come out the same way?
04-1527 +++$+++ 19888 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I think it would have come out the same way.
04-1527 +++$+++ 19889 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Really? That you could take pollutants from a different body of water and add it to an already polluted stream? I thought that was clear that that's not the case.
04-1527 +++$+++ 19890 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if we look to the Miccosukee opinion, at 541 U.S. 109 to 110, it discusses this issue. One of the issues there is, Are there two bodies of water or one body of water?
04-1527 +++$+++ 19891 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Exactly.
04-1527 +++$+++ 19892 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And the Court -- that question was left unresolved in Miccosukee. That's what's being tried in Florida right now.
04-1527 +++$+++ 19893 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Because if it was one body of water, it was okay, and if it was two bodies of water, it was bad, right?
04-1527 +++$+++ 19894 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but in -- at page 109, what this Court said -- it talked about the S-9 pump, which was central there, because it was moving the body -- that the -- the water. It was transmitting it. And it was -- talked about pumping the water from one part of the water body to the other. That's a discharge, even though it's the same water body.
04-1527 +++$+++ 19895 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But it would add pollutants to the other body whether it comes from the adjacent body or whether it comes from some distant body. The only reason that the pumping from the adjacent body did not qualify is -- not because there no addition of pollutants. There would be an addition of pollutions from a distant lake, and you -- we'd be able to hold a person liable. The only reason there was no addition here was that there was -- there was an addition here, but there was no discharge, because it was the same body of water.
04-1527 +++$+++ 19896 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With --
04-1527 +++$+++ 19897 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And I --
04-1527 +++$+++ 19898 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect --
04-1527 +++$+++ 19899 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- it seems to me that's --
04-1527 +++$+++ 19900 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I think you have --
04-1527 +++$+++ 19901 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- what you have here.
04-1527 +++$+++ 19902 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- it exactly backwards with what the position of the United States was in Miccosukee, and it explains why our -- we took that position. And the Court upheld our position in Miccosukee. And we're taking the different position here. Because here we're talking about a discharge, not an addition. The dictionary definition of "discharge" nowhere speaks of "addition." Petitioners have not pointed to any dictionary definition that speaks in terms of an addition. It talks about a flowing or issuing out. What it connotes is that the water has, in some sense, been contained or confined, to some degree.
04-1527 +++$+++ 19903 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Counsel, I was --
04-1527 +++$+++ 19904 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And it's issuing out --
04-1527 +++$+++ 19905 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- surprised, in a case involving a FERC license condition, that no one from FERC signed on to your brief.
04-1527 +++$+++ 19906 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, as people in the office are familiar with, in the SG's office, the names in the brief tell very little about who has participated in the discussions and the writing of the brief. The Rapanos case --
04-1527 +++$+++ 19907 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But if it's a case involving a FERC license, and FERC isn't there, I think it says a great deal.
04-1527 +++$+++ 19908 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, this is primarily a case about the Clean Water Act. I would point to the Rapanos case, immediately before. The Corps' name is not on the brief, and EPA's name is not on the brief.
04-1527 +++$+++ 19909 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you know what FERC's --
04-1527 +++$+++ 19910 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So, we can't draw --
04-1527 +++$+++ 19911 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you know what FERC's position is --
04-1527 +++$+++ 19912 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I certainly --
04-1527 +++$+++ 19913 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- in this case?
04-1527 +++$+++ 19914 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- do. They join in the consensus position of the United States. This brief has been coordinated not only with EPA and FERC, but also the Department of the Interior and the Army Corps of Engineers. This is the position of the United States.
04-1527 +++$+++ 19915 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I'm sure of that, and it involves a reconciliation of --
04-1527 +++$+++ 19916 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-1527 +++$+++ 19917 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- competing positions. Is there anything that FERC has issued that is illuminating with respect to their view?
04-1527 +++$+++ 19918 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think what's illuminating is their consistent position, since 1970, when this provision was first enacted into law, in the Water Quality Improvement Act of 1970, 2 years before the Clean Water Act amendments.
04-1527 +++$+++ 19919 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you agree that a State could adopt water quality standards that would, in effect, preclude hydroelectric power in the State?
04-1527 +++$+++ 19920 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it's certainly possible, on an individual river. Imagine if a State had a river that is designated as a wilderness area or a wild and scenic river, and determined it did not --
04-1527 +++$+++ 19921 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would they do --
04-1527 +++$+++ 19922 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- want to have hydropower.
04-1527 +++$+++ 19923 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- it statewide?
04-1527 +++$+++ 19924 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If they did it statewide, I think --
04-1527 +++$+++ 19925 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Saying, "It is of utmost importance to us to provide habitat for spawning salmon, whatever, dams interfere with that in a way we find objectionable, so we're going to go a different direction, as a matter of power policy for the State of whatever, and not allow hydroelectric power."
04-1527 +++$+++ 19926 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If they did it statewide, it would raise a question of whether or not that action is preempted under the Federal Power Act, not under the Clean Water Act. And that would -- that's obviously not the issue here. Maine, as you have heard, supports hydropower production. The question here is reconciling the competing roles of the hydropower company, on the one hand, and the State and Federal Governments, which, in the spirit of cooperative federalism, work together on these matters. We are very supportive of the States' approach of reviewing discharges to determine whether or not there has been the creation of pollution, and determining whether or not there is a violation of their water quality standards. This is a part of -- an important role that the State has under the Clean Water Act, that Congress gave to the State, and to which we defend. I'd like to point out that one of the things that's been talked about here is the oddity, supposed oddity, of a water discharging into itself. And that's not odd at all. One often talks about, for instance, the fresh water above the dam being discharged into the fresh waters below. That's -- there's nothing unusual about this, because we're talking about the characteristic of a water that might be shared by the water that's upstream and contained in the dam and is also a characteristic of the water below. Now, under section 401, the upstream characteristic doesn't matter, because it's -- it refers to "any discharge," and it says "into the navigable waters." "Into" is significant, because "any discharge" is "out of something." And so, it can also be "into something." And by stating "into navigable waters", Congress indicated what it was concerned about, which was that discharges that go into the navigable waters can cause pollution, and, therefore, ought to be reviewed by the State to make sure the water quality standards are being met. There's nothing unusual in this at all. It simply indicates that Congress was not concerned about discharges that go elsewhere; for instance, into a municipal water system or onto irrigated land. What we have here --
04-1527 +++$+++ 19927 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Just for the few of us who think the dictionary doesn't answer the case, is it possible you could say a word about why Congress would, or would not, have wanted, in effect, to incorporate all State water quality standards into a permission to build a dam?
04-1527 +++$+++ 19928 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The reason why, it was because Congress gave the States primary authority under the Clean Water Act to deal with pollution. Discharges from confinements, from confined water, creates pollution, even in the absence of pollutants, by the stratification, the deprivation of oxygen, and the like. And Congress recognized that where there's a discharge, there's likely to be a pollution problem, and that pollution problem will be manifested downstream. And it, therefore, makes sense for the State to be able to review and determine whether or not its water quality standards will be met.
04-1527 +++$+++ 19929 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Also to protect fish?
04-1527 +++$+++ 19930 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. It includes the protection of fish. And, in fact, one of the things that this permit does, in this particular case, this condition, is, it ensures that there is, in fact, water in the bypass reaches. In the absence of the conditions that the State imposed here, there would be no water at all in the bypass reaches. Now, it's true that FERC itself can impose conditions to meet these requirements --
04-1527 +++$+++ 19931 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, suppose --
04-1527 +++$+++ 19932 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but --
04-1527 +++$+++ 19933 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- you have a facility that produces adverse environmental effects in one State, but produces power for a number of adjoining States. Why does it make sense for the State in which the facility is located to do the balancing of the environmental and the power considerations in that situation?
04-1527 +++$+++ 19934 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ May I answer that question --
04-1527 +++$+++ 19935 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Certainly.
04-1527 +++$+++ 19936 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Your Honor? The Clean Water Act provides for exactly this problem. It does address the problem of interstate pollution. I believe that this Court's case in Arkansas versus Oklahoma deals with that type of issue. It provides for a reconciliation, with EPA playing an important role in those interstate concerns. Thank you, Your Honor.
04-1527 +++$+++ 19937 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Counsel. The case is submitted.
04-1528 +++$+++ 19942 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first this morning in 04-1528, Randall v. Sorrell, and the consolidated cases. Mr. Bopp.
04-1528 +++$+++ 19944 +++$+++ FALSE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. Mr. Chief Justice, and may it please the Court: As this Court made clear recently in Republican Party of Minnesota v. White, since political candidates are the ones who take office, it is imperative that they be allowed freely to express themselves on matters of current public importance. As a result, this Court has never allowed the government to prohibit candidates from communicating relevant information to voters during an election. Vermont, however, has adopted low expenditure and contribution limits for the opposite purpose, reducing overall candidate campaign spending, and these limits would have that effect. This is fundamentally incompatible with any reasonable interpretation of the First Amendment and is not justified by any truly compelling governmental interest. As a result, they are unconstitutional. Now, Vermont's expenditure limits are an unprecedented, direct restraint on candidate speech. Once these low expenditure limits are exhausted, a candidate may not drive to the village green to address a rally, may not return the phone call from a reporter at the local newspaper, and may not call a neighbor to urge her to get out to vote. This Court has never allowed the government to prohibit candidates from communicating this sort of relevant information during a campaign. Further, this Court has long held that more speech is better than less speech. As long as contribution limits are available to address any realistic concerns about corruption, the public will benefit from candidates' being allowed to spend all that they can lawfully raise in their campaign. Now, the record is clear in this case that the expenditure limits will deprive candidates of substantial resources. The district court erroneously looked at average spending over the last three elections and found that in all but one category, that is, Senate candidates running in single-member districts, that the average spending for all candidates in those campaigns were below the limits set by the expenditure limits in Vermont. However, in Buckley, the last case for -- where this Court considered candidate expenditure limits, the Court looked at the number of races affected, not the average spending in all races. And in Buckley, the Court looked at the expenditures in U.S. Senate races and found that in previous election, that 26 percent were over the mandatory expenditure limits considered in Buckley, and in the House, 3 percent of the races had spending greater than the -- these limits.
04-1528 +++$+++ 19945 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Bopp, would you clarify a procedural point? As I understand it, on the expenditure issue, there is no final decision that has gone back to the district court for further proceedings.
04-1528 +++$+++ 19946 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there were -- that is correct, that there is a remand.
04-1528 +++$+++ 19947 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And it may -- the district court might -- may well find that nothing passes constitutional muster in the end.
04-1528 +++$+++ 19948 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they could potentially, yes. However, the -- the Second Circuit did -- did make decisions of law. They found that these two interests that the State is alleging, that is, in preventing corruption and in conserving incumbent time, were together a compelling governmental interest, and we -- we allege that they are not and that on this record, this Court can determine that they are not -- they are not together a compelling governmental interest.
04-1528 +++$+++ 19949 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are you arguing now then that there may be no limits on expenditures?
04-1528 +++$+++ 19950 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- this Court has now considered, including this case, a dozen times in which the government has sought to limit expenditures, either of candidates or PAC's or political parties, and despite the work of the most brilliant lawyers in the United States, they have not come up with any compelling governmental interest that this Court has accepted. And we believe that this record demonstrates that these claimed interests either are not compelling or are not proven. Now --
04-1528 +++$+++ 19951 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you -- when -- when you make that point, that on this record the -- the claimed interests are not compelling or not proven, would you have us leave the door open for a greater degree of proof? For example, take the -- the problem of candidate time. The lower the donation limits are, the -- the more donations there have got to be, and -- and there's -- there's plenty of comment, particularly in some of the amicus briefs, on the amount of time that political candidates generally spend scrounging around for money. If we decided the case your way, would the door be left open for a more impressive and compelling record on this issue?
04-1528 +++$+++ 19952 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we -- we are asserting that that is not a compelling interest in and of itself, and this Court should reject it. I -- I just don't see --
04-1528 +++$+++ 19953 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you also say, on this record.
04-1528 +++$+++ 19954 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. And in addition -- well, the -- the point about it not being a compelling interest I think is an analytical point that doesn't have to be -- that doesn't rest on this -- strictly on this record.
04-1528 +++$+++ 19955 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So I -- I take it your point then on the combined corruption/competition for money problem is that there isn't any record that would support it.
04-1528 +++$+++ 19956 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it were a compelling interest, there's no record here that is a problem in Vermont.
04-1528 +++$+++ 19957 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right, but you're saying this combination cannot be a compelling interest as a matter of law, consistent with the First Amendment. Is that correct?
04-1528 +++$+++ 19958 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it is. I don't see how it is a compelling governmental interest to limit challengers to only fund-raise to the extent that an incumbent finds comfortable or convenient.
04-1528 +++$+++ 19959 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-1528 +++$+++ 19960 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, just --
04-1528 +++$+++ 19961 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or at least where -- where the limitation -- you make a big point of this in your brief as -- as I -- as I recall. At least where the reason the candidate would have to spend so much time is the very small contribution limit established by the same statute. It's -- it's rather like the -- the murderer asking for mercy because he's an orphan, having killed his parents.
04-1528 +++$+++ 19962 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is a self-justifying statute by imposing the lowest contribution limits in -- in the Nation, adjusted for inflation for 1974 dollars, when the $1,000 limit was approved. This is a contribution limit of $50 for an --
04-1528 +++$+++ 19963 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, to get back to Justice Souter's questions, could you answer it this way? Let's assume that some members of the Court simply accepted the proposition that money buys access. And -- and I don't think maybe we can take judicial of that, but I -- I think that's a common sense conclusion that we can reach. And you tend to fight this in your brief to say that this doesn't happen. I tend to doubt that. I tend to think money does buy access. What -- if -- if we or I were to conclude that, what would follow?
04-1528 +++$+++ 19964 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think it's not a matter of just access. It has to be a matter of privileged access that this Court found in the --
04-1528 +++$+++ 19965 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Let's say it's privileged access.
04-1528 +++$+++ 19966 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if it -- if it's privileged --
04-1528 +++$+++ 19967 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, isn't the answer that the -- that this is up to the voters. The voters can see what's going on and throw the legislator out if they choose.
04-1528 +++$+++ 19968 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Indeed, and in fact, the -- there are other less restrictive ways of -- of dealing with this. For -- for instance, Vermont prohibits contributions from lobbyists during the session. Other legislatures have imposed a prohibition on incumbents from raising any money during the time the legislative session -- the legislature is in session. So there are ways of dealing with the question of access that are not the blunderbuss approach here.
04-1528 +++$+++ 19969 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It -- it is true that all the polls say that there's public disaffection and cynicism. Does that translate into action to defeat incumbents who take particularly large sums of money? Is there -- is there statistical evidence to show that?
04-1528 +++$+++ 19970 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not aware of that. But certainly the press and opponents often, you know, point to examples where they believe that their challenger is under too much of an influence of a particular entity, and the voters, you know, in certain circumstances take that into account in their voting. And furthermore, it is true that there is a general cynicism about politicians and government that has existed since the first colonists came to our country and continues today. In fact, our governmental system is established on the proposition that we need to limit the -- the government, and we need to have checks and balances because we don't want free rein by politicians because we are concerned about their exercise of power. But if this is enough --
04-1528 +++$+++ 19971 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May ask you this question, Mr. Bopp? This -- in -- following up on Justice Ginsburg's inquiry, is it your view that there is no set of facts, no matter how scandalous and so forth and so on, Watergate and all the rest of it, could ever justify an expenditure limit?
04-1528 +++$+++ 19972 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is not our position.
04-1528 +++$+++ 19973 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if that's the case, then why -- why would it be inappropriate to have further hearings in this case to see whether they're -- they could be justified?
04-1528 +++$+++ 19974 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because there have been legal findings by the Second Circuit that we believe are erroneous. The -- the first, as I mentioned previously, is that -- that we do not believe that the -- preserving incumbents' time through expenditure limits can ever be a compelling governmental interest, to limit what challengers can spend -- raise and spend in their own election. I mean, this interest -- the expenditure limits don't apply just to incumbents who -- if there is a concern about --
04-1528 +++$+++ 19975 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, I understand. I'm just curious to know what sort of -- what sort of evidence could ever support an -- an expenditure limit in your view, if -- if any.
04-1528 +++$+++ 19976 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I have a -- a very difficult time justifying expenditure limits. I know there's a debate on this Court on whether or not there are per se situations under the First Amendment. If there was ever a candidate for a per se First Amendment ban on a law, surely it would be this type of case. In other words, we are talking about speech that is at the core of the First Amendment, and secondly, we are talking about candidate speech. Candidates are the ones that go into office. They are the ones that are going to be exercising governmental power. These low expenditure and contribution limits would have the effect of making candidates a bit player in their own election so that the voters --
04-1528 +++$+++ 19977 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Counsel, with respect to the contribution limits, what -- what makes this case different from the -- the Shrink PAC case from a few years ago?
04-1528 +++$+++ 19978 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, several things. First is there was actually a paucity of evidence in the Shrink PAC case. There was only an allegation of one PAC that wanted to give one contribution to one candidate, and this Court said that, you know, you didn't need a lot of evidence to combat such a weak -- weak claim. So secondly is the novelty and plausibility of a -- adjusted for per election in 1974 dollars of a $50 contribution limit, that that would actually give rise to realistic concern about actual and perceived corruption. So, again, in Shrink PAC --
04-1528 +++$+++ 19979 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you think it -- you think it's the dollar amounts that are involved?
04-1528 +++$+++ 19980 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, one of the decisions that the Court has to make under your jurisprudence is that -- that contribution limits can only eliminate large contributions that give rise to this realistic perception or actuality of corruption. So it is -- whether it's large or not and giving rise to that concern because of the size, that is an integral part of the Shrink analysis.
04-1528 +++$+++ 19981 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It -- it was pointed out in -- in one of the briefs -- and I -- I didn't go back and check it myself, but I'd like your comment. It was pointed out in one of the briefs that the limits in Vermont were substantially close to or even -- even higher than the -- than the limits in the Missouri scheme, out of which the Shrink litigation grew. Do you know whether that is correct?
04-1528 +++$+++ 19982 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it depends on how you -- you compute it. The --
04-1528 +++$+++ 19983 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It always -- it always does, yes. (Laughter.)
04-1528 +++$+++ 19984 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- well, certainly what the -- what the evidence was in Shrink was it was a $1,075 limit, again adjusted for inflation, was about $375 adjusted for inflation compared to the Buckley limits, and because of the paucity of evidence and the fact that it wasn't really novel to say that a $1,000 limit could give rise to corruption because --
04-1528 +++$+++ 19985 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But there were lower limits, Mr. Bopp, and I think that's what Justice Souter was asking about.
04-1528 +++$+++ 19986 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-1528 +++$+++ 19987 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There were the thousand dollars, but I think it went down as low as $250 in --
04-1528 +++$+++ 19988 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, take the whole schedule in Missouri.
04-1528 +++$+++ 19989 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Well, the -- the contribution limits that this Court considered was the $1,075 --
04-1528 +++$+++ 19990 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There -- there was a court that subsequently considered the rest and upheld the contribution --
04-1528 +++$+++ 19991 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, there was. The Eighth Circuit did so and the -- the lowest limit there was $275 per election, which would be $500 for -- for the -- the entire election cycle. And the -- and -- but really that -- that was on a -- a record that this Court found to be, frankly, inadequate to -- to raise any serious questions about the -- whether the amounts concerned gave rise to a realistic threat of corruption. And the record here demonstrates that -- that the -- that the only time really there is a actuality or perception of corruption in Vermont is when they -- is when we're talking about amounts in excess of $1,000. That was the prior limit.
04-1528 +++$+++ 19992 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And we -- we didn't send it back so that more of a record could be made, did we?
04-1528 +++$+++ 19993 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. No. And, you know, we had a 10-day trial. We had numerous witnesses here. The -- Shrink had been decided. I mean, there was -- everything was before the court to consider the -- the matter. And so, you know, they had their chance at -- at proof. And -- and in the numerous witnesses, they made their best case. They could not identify one single politician in Vermont that was -- that anyone would -- would claim was corrupted in any way by a contribution -- by contributions under $1,000. They could not name one single incumbent politician in Vermont that neglected any specific duty that he or she had.
04-1528 +++$+++ 19994 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but you know. You expect them to name names? I mean, here -- (Laughter.)
04-1528 +++$+++ 19995 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if --
04-1528 +++$+++ 19996 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Really, that -- that's -- that's a lot to ask.
04-1528 +++$+++ 19997 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well -- well, they at least have to give, you know, realistic circumstances. They gave a few circumstances --
04-1528 +++$+++ 19998 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, suppose three legislators had been corrupted, venal, criminal corruption, actually taking no wink-wink, nod-nod, a specific agreement to vote for money. So what? Does that change your case?
04-1528 +++$+++ 19999 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- the responsibility that Shrink imposes is to -- to demonstrate both actual and perceived corruption at that the --
04-1528 +++$+++ 20000 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose -- suppose that had been demonstrated in -- in a particular State. Does that mean, in your view, that a State can have strict contribution limits and support?
04-1528 +++$+++ 20001 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it's just anecdotal, no. It has to be --
04-1528 +++$+++ 20002 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. It's true. It's -- it's done. There have been criminal convictions.
04-1528 +++$+++ 20003 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- if it's isolated examples that are unconnected to any perception of corruption at that level, then it would not be adequate on -- on its -- on its -- by itself. Now, of course, in Shrink, the Court cited to both actual and perceived evidence of corruption at the level that the -- you were considering that limit.
04-1528 +++$+++ 20004 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well -- well, if -- if you -- if you concede and -- and you tend, at least, to back away from the proposition that the case I put would be an inadequate ground or an adequate ground for legislative limits, then I suppose you can say the State has the power to prevent this from happening to begin with.
04-1528 +++$+++ 20005 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this Court has never approved restrictions on fundamental First Amendment values based purely upon speculation or concern about something that's happening some other place. In other words, these are real limits on people in Vermont, and it seems to me that to approve the lowest contribution limits in the Nation and these very low expenditure limits, the State would have to demonstrate that Vermont is the most corrupt State in the Nation. And they're far from it. In fact, the opposite --
04-1528 +++$+++ 20006 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Only -- only the most corruptible. (Laughter.)
04-1528 +++$+++ 20007 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Nor corruptible. The -- the evidence is quite clear. Even in the few examples that they cite to like the tobacco industry passing out $40 checks after a -- a vote defeating a bill. Of course, that's still legal under this -- this act. But, you know, even pointing out that they -- that the person who talked about that example made it clear that he didn't believe anybody was -- was influenced by post-contributions after a vote regarding a matter that's not even prohibited by this -- by this act. So it was -- it was a lot of testimony about how truly clean Vermont is, not the most corrupt, where people -- politicians would be tempted at these quite low limits to, you know, sell their honor and -- and personal, you know -- and their -- and affect their own, you know, personal character and reputation.
04-1528 +++$+++ 20008 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Bopp, toward the end of your brief, you -- you make the argument that if we accepted the State's position in this case, we implicitly would have accepted the position that totally -- totally publicly funded elections would be constitutional. And -- and I -- I realize your -- your concern there was with expenditure limits, obviously, not contribution limits. You didn't come out and say it, but I -- I assume your position is that that would be unconstitutional per se. A totally publicly funded scheme would be unconstitutional per se.
04-1528 +++$+++ 20009 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The key would be if it's mandated, voluntary --
04-1528 +++$+++ 20010 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-1528 +++$+++ 20011 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it was mandated, yes, it would be unconstitutional.
04-1528 +++$+++ 20012 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And -- and its unconstitutionality would rest on the limitation on expenditure, in effect?
04-1528 +++$+++ 20013 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Oh, yes. Well, there would be a prohibition in that case if I understand your --
04-1528 +++$+++ 20014 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, yes, yes.
04-1528 +++$+++ 20015 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- on -- on contributions, and there would be also a -- a mandatory expenditure limit because you could only spend what the government gave you. So that would have all those features. Now, if it was, of course, voluntary, it would solve the -- the two problems that -- that the State talks about because if you have a voluntary public funding system -- and this is, again, why remand is -- is inappropriate. You don't need to go back and -- and determine whether or not the legislature considered providing adequate public funds. I mean, it's whether that alternative exists.
04-1528 +++$+++ 20016 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But on -- on your view, if -- if there were a -- a mandatory publicly funded scheme and the -- the limits on expenditure were very high -- it was a very generous scheme. They gave them lots of money -- it would still be unconstitutional because there would be -- I -- I take it on your view, because there would be an elimination of any way to participate by contributing. Is that correct?
04-1528 +++$+++ 20017 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There would be an absolute prohibition, and this Court in -- in Beaumont reserved that question of whether or not an absolute prohibition -- and -- and then in McConnell, you struck down the absolute prohibition on minors' contributing to campaigns. So, yes, there would be a absolute prohibition on any way for any individual to associate with a campaign through a contribution.
04-1528 +++$+++ 20018 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it would also prevent the candidate himself from expending his entire fortune, if he wishes, in informing people of why he should be elected --
04-1528 +++$+++ 20019 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that is true.
04-1528 +++$+++ 20020 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- think that's okay.
04-1528 +++$+++ 20021 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and in the record below, plaintiff Donald Brunelle said that he was prepared to spend considerable sums in support of his State Senate election, which -- and considerable sums above the expenditure limits that were before -- that were adopted by Vermont. So the -- the question is an independent --
04-1528 +++$+++ 20022 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which raises no possibility of corruption.
04-1528 +++$+++ 20023 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, nor -- nor on fund raising using up your time because all a wealthy person has to do is write a check. And -- and, of course, in Vermont, they even have an exception for not only just the wealthy -- wealthy candidate, but the wealthy family. So, you know --
04-1528 +++$+++ 20024 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't know what you mean they have an exception for the wealthy family.
04-1528 +++$+++ 20025 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. To a third degree of consanguinity, people who are related to you to that degree are not subject to the contribution limit. So, you know, it's hard to justify Vermont's scheme if you're concerned about the influence of the wealthy because they're giving the wealthy carte blanche to fund their own campaigns, even under these limits. So a wealthy person who runs for Governor -- he has no fund raising costs. So -- and -- and he can get contributions from others that are related by blood, but not by marriage, interestingly, to -- to him. So the public funding or the expenditures by -- by the wealthy neither give rise to -- and both solve -- either don't give rise or solve the problems that they claim. So there's -- there's -- you don't need a remand to consider that -- that question, and that is one of the questions that the Second Circuit has asked that -- that the matter be remanded for. Now, in addition, the expenditure and contribution limits here are not going to allow even effective campaigns. We have considerable evidence in the record that to run an effective campaign for Governor in Vermont, it takes $600,000 to $800,000; for the Senate --
04-1528 +++$+++ 20026 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Bopp, may I ask you? You keep -- the way you're discussing this case, one would think that the trial court found there was an evidentiary insufficiency, but I thought, at least on the contributions part, the trial court found that the evidence sufficed to justify those limits.
04-1528 +++$+++ 20027 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They did, but erroneously, and I -- we believe that you have a responsibility to do an independent examination of the record. For instance, there was a finding by the district court that these amounts were, quote, suspiciously large. Now, if you look at the record and you look at the six individuals --
04-1528 +++$+++ 20028 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Excuse me. What -- what amounts were suspiciously large?
04-1528 +++$+++ 20029 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The contribution limits -- amounts over the contribution limits for --
04-1528 +++$+++ 20030 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can you -- can you point to the place in the district court opinion that you're referring to?
04-1528 +++$+++ 20031 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I am sorry. I do not have that in front of me. That the district court found that the amounts prohibited under the contribution limits by Vermont were, quote, suspiciously large, and then they cited six different witnesses. We have reviewed each -- in our reply, each one of those witnesses, and it is simply not true that any of them said that it was suspiciously large, that is, that if there was any relationship between contributions between the old limits of $1,000 per election and these new, much -- much lower limits, if there was any -- any witness related contributions of that size to any threat of corruption. In fact, in the examples that are given, they disclaim that there was any -- that anybody was bought or influenced in any way by the contributions that were made. Now, the -- in terms of an effective campaign, of course, under Shrink if a expenditure -- if a contribution limit amounts to an expenditure limit -- and the Court commented on this. This Court commented on this in -- in Citizens Against Rent Control v. Berkeley. If a contribution limit acts as an expenditure limit, then it can -- it will be also be struck down if the candidates cannot mount effective campaigns. And here we have demonstrated in the record what an effective campaign amounts to, and the amounts even for the House district of $2,000 would be simply used up by 1 brochure, 100 yard signs, and 1 postcard mailing. All of these have been valued in the record, and that would amount to $1,500 to $2,000, almost the entire amount allowed, not allowing even one mailing to all voters in -- in that House district. I'd like to reserve the balance of my time.
04-1528 +++$+++ 20032 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. General Sorrell.
04-1528 +++$+++ 20034 +++$+++ FALSE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, thank you, and may it please the Court: Justice Kennedy, you raised the issue of whether money buys access. It clearly does. Our Governor admitted that in a State of the State address. But we also had testimony at trial from a former statewide officeholder that money, of course, buys access, but on the bad days, it buys influence. And we had the President --
04-1528 +++$+++ 20035 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel --
04-1528 +++$+++ 20036 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of the Senate --
04-1528 +++$+++ 20037 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, you -- you say in your brief -- I'm reading from page 13 -- that the record convincingly shows that the ties among donor groups and elected officials often determine the positions officials take. Can you give me an example of an official who took a position because of the ties to donor groups?
04-1528 +++$+++ 20038 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- there was testimony that the President of the Senate said to another Senator who was testifying at trial, we've lost the drug money. I'm not willing to lose the food manufacturer money, so I'm not going to sign this bill. That same President of the Senate testified in a legislative hearing -- I -- he admitted that he makes decisions in performing his legislative duties because of that whole lot of money that he had collected in the year before.
04-1528 +++$+++ 20039 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So your position is that that official's official positions were determined by the donor groups, as you say in your brief.
04-1528 +++$+++ 20040 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Influenced and --
04-1528 +++$+++ 20041 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, your brief says determined. And did -- did you --
04-1528 +++$+++ 20042 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Have an influence and we would suggest an undue influence in some cases.
04-1528 +++$+++ 20043 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it should say influenced rather than determined.
04-1528 +++$+++ 20044 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We didn't have anyone, as Justice Scalia asked, who stood up and admitted to having taken bribes. We did have the Senator, who was the chair of the Senate Finance Committee, who said that she's not in favor of tax credits, but she had a donor to her campaign who had given $500 in one campaign cycle and $1,000 in another cycle, and she allowed a tax credit to go through her taxing committee, even though substantively she didn't like tax credits.
04-1528 +++$+++ 20045 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How many prosecutions for political corruption have you brought?
04-1528 +++$+++ 20046 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We have not had any of legislators or statewide officers that I'm aware of.
04-1528 +++$+++ 20047 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think that political corruption in Vermont is a serious problem?
04-1528 +++$+++ 20048 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is a serious problem. Over 70 percent of Vermonters at -- there was testimony at trial from an expert that over 70 percent of Vermonters believed that corporate interests and wealthy individuals have an undue influence on politics in the State, and I think 73 percent believe that the average citizen --
04-1528 +++$+++ 20049 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would you describe your State as a clean State politically or as a corrupt one?
04-1528 +++$+++ 20050 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We have a real problem in Vermont. We haven't had a Governor go to prison. We haven't had legislators tearfully apologizing for having taken bribes, facing an indictment the next day. But we have got a problem in Vermont. In over 65 hearings before our legislature and then through a 10-day trial, we established that as the trial court said, the threat of corruption in Vermont is far from illusory.
04-1528 +++$+++ 20051 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ To the extent that Vermont legislators can be bought off by $51? (Laughter.)
04-1528 +++$+++ 20052 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's nothing in the record --
04-1528 +++$+++ 20053 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's very sad. (Laughter.)
04-1528 +++$+++ 20054 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's the limit you've placed on -- on contributions.
04-1528 +++$+++ 20055 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- no.
04-1528 +++$+++ 20056 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, the -- you know, if -- if you accept more than $51, you're -- you're likely to have your vote determined by that.
04-1528 +++$+++ 20057 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I -- we don't suggest -- we don't suggest that.
04-1528 +++$+++ 20058 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then why -- why the $50 limit? It certainly isn't based on the corruption --
04-1528 +++$+++ 20059 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know what $50 limit you are talking --
04-1528 +++$+++ 20060 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. He's thinking in -- he sometimes thinks in the past. He's -- (Laughter.)
04-1528 +++$+++ 20061 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He's translated it into 1974 or '72 real dollars.
04-1528 +++$+++ 20062 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, it's --
04-1528 +++$+++ 20063 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's $200. The same question or $201.
04-1528 +++$+++ 20064 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's the math. The reality is that these contribution limits that we had -- we had examples under the old contribution limits. Even Petitioner Randall admitted that in Vermont, a $1,000 contribution -- if you receive a $1,000 contribution in Vermont -- this is one of the petitioners -- then Vermonters think that you've been bought. And that's the reality --
04-1528 +++$+++ 20065 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And they can -- and presumably they act accordingly at the polls. If they think someone has been bought, I assume they don't reelect the person.
04-1528 +++$+++ 20066 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Buckley court thought that disclosure obligations and contribution limits alone would be -- would suffice to address corruption and --
04-1528 +++$+++ 20067 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I have the same question Justice Scalia had. I mean, the -- the question is you -- you have limits here of $100 per election. It's $200 per cycle.
04-1528 +++$+++ 20068 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For a House race, yes.
04-1528 +++$+++ 20069 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ For a House. $300 for the Senate, $400 for a candidate for statewide office, including the Governor. That's $200 for an election for Governor. You throw in contributions in kind. You say that the political parties themselves cannot give more than that $200 for an election for the Governor. If we translated those into 1974 dollars, they're just the numbers Justice Scalia mentioned, and I would like to know why are they -- why does not give incumbents a tremendous advantage, that if you have the incumbent plus a newspaper, it's hopeless, that there's no way of spending as a challenger. In other words, why aren't these limits far too low?
04-1528 +++$+++ 20070 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Incumbents had a much more of an advantage in the pre-Act 64 world. They could raise more money and spend more money than --
04-1528 +++$+++ 20071 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's not going to help to say incumbents had a bigger advantage before. That is, the question is, what we're interested in is -- at least what I've written that I'm interested in, is at what point do these become so low that they really, as a significant matter, shut off the possibility of a challenge. And from that point of view, your numbers, which do not tell me the expenditures in a competitive district, and your numbers, which do not explain all the problems that Judge Winter had with these things, do not help. That's why I'm asking you the question.
04-1528 +++$+++ 20072 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Vermont has the --
04-1528 +++$+++ 20073 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I want your answer.
04-1528 +++$+++ 20074 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Vermont has the second lowest gubernatorial spending in the country. In the record it shows that in the largest urban area in the State, in the Burlington area, you can buy three 30-second TV ads in prime time on tier one cable for $45.
04-1528 +++$+++ 20075 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not talking about the expenditure. I'm talking about the contribution limits. I and my friends have the following thought. We don't know who the candidates for State rep are, but we want a Republican slate or we want a Democratic slate. So we get all our $5 together, give them to the Democratic Party or the Republican Party in Vermont, and lo and behold, that party cannot give more than $100 in an election to a State rep, et cetera. Now, to the -- to the ear, that sounds as if a challenger or a slate of challengers or a party that wants to challenge is going to have a really tough time. So I want you to explain it.
04-1528 +++$+++ 20076 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The extensive record below shows that with these contribution limits, attacking the corruption and the appearance of corruption issue, the candidates can amass the resources necessary to run effective campaigns at all levels.
04-1528 +++$+++ 20077 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It shows that on average. It doesn't show that in the competitive races, which is where the -- where the shoe pinches.
04-1528 +++$+++ 20078 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the reality is that -- that in virtually all classes of races, other than the single-member Senate races, that average spending was below these expenditure limits, and these include contested cases with primaries, without.
04-1528 +++$+++ 20079 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's just what I said. Your figures show that the average spending is below, but that's not what's significant. What's significant is what Justice Breyer posed, where -- where there is a contested race and -- and some new candidate wants to unseat somebody who's been in there for years. That's -- that's where the shoe pinches.
04-1528 +++$+++ 20080 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And, Justice Scalia, under our law, the challenger can spend more than the incumbent because the incumbent has a lid not -- of 85 percent or 90 percent of the expenditure limit, depending on whether it's a legislative race or a -- or a statewide race. But the -- the issue here is you're going to have some -- some outliers. But we have core constitutional interests in trying to enhance the integrity of our campaigns. We have this problem. The legislature reached a balance here. It looked at what -- how much you would need to run effective campaigns. It set --
04-1528 +++$+++ 20081 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in -- in any -- or in many campaigns, the -- the issues take shape during the process of the campaign, and there are historical events, national events that suddenly occur that people want to comment on. And I -- I just don't see that there's any capacity for adjusting so that the public can know how candidates are facing issues that are beginning to emerge that the public has a vital interest in. My understanding was that a quarter-page ad in the Burlington newspaper was, I think, $1,400. Now, it's -- it's gratifying to know that Vermonters are splurging on cable television, but it -- it -- (Laughter.)
04-1528 +++$+++ 20082 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- it seems to me that this is a highly restrictive rule insofar as having the campaign be able to address the issues that the voters say that they've become interested in.
04-1528 +++$+++ 20083 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We have the second lowest -- smallest legislative districts in the country, 4,000 citizens per single-member legislative district. Sure, that's what it costs to take out an ad in the Free Press, but there's nothing in the record to show that House candidates, legislative candidates, take out those size ads in -- in the Burlington Free Press. The record is otherwise. The record reflects that it's primarily door-to-door campaigning for legislative races. If you're taking out an ad, it's in -- it's a flyer in one of the -- the weekly papers. Petitioner Donald Brunelle admitted that he ran a competitive race for the House, spending $1,000, that included yard signs, a mailing to his constituents, and flyer advertisements in -- in the newspaper.
04-1528 +++$+++ 20084 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did he have a primary?
04-1528 +++$+++ 20085 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know whether he had a primary or not.
04-1528 +++$+++ 20086 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's another feature of -- of this scheme that I find quite puzzling. You get the same expenditure limit for the election cycle whether you go through a primary or not. What an advantage that is for the incumbent.
04-1528 +++$+++ 20087 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- there was testimony in the record that those who have a primary might actually get a bump over others who are not challenged. But as the district court pointed out, in Vermont what makes Vermont different is that our primary is late. It's the second Tuesday in September, and so it's less than 8 weeks from the general election. It's not like having a primary in the spring. And as the legislature during those 65 hearings considered the campaigning, they considered all kinds of campaigns, including contested primaries and not, and again, average spending in these campaigns was, with minor exception of the single-member Senate districts, of which there are three -- that average spending was below these expenditure limits. So in the average campaign, you could actually spend more than -- than on average is being spent. And the issue, when you've got competing constitutional interests, is whether we address our problems of corruption, appearance of corruption. We try to free up candidates' and public officials' time from fund raising. We try to create competitive elections and bring more citizens into the process voting, grassroots campaigning, and standing for election. We want more people to run.
04-1528 +++$+++ 20088 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Sorrell, would you go back to the -- your comment on -- on average expenditures? Do we know from the record how many of the -- how many of the contests, on the basis of which the average was calculated, were contests in which there was a -- a contested primary?
04-1528 +++$+++ 20089 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't have that evidence in the record. What we have is that we -- the experts looked at total spending, which would include primary spending and general election spending, and our figures went from that. And our expert, by the way, considered all races, even those for which campaign finance reports were not filed, meaning that the candidate hadn't raised or expended more than $500, and assumed $500 in spending in each one of those -- each one of those races. So our average spending figures actually might be a little higher than -- than reality.
04-1528 +++$+++ 20090 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Was there any testimony or evidence on the other side of the point that Judge Winter makes? That is, you have someone running in a primary and then faces an incumbent in the general election, but there's nothing left in the till because it was a hard-fought primary. That -- the advantage to the incumbent in that situation was a large concern to at least some of the judges on the Second Circuit.
04-1528 +++$+++ 20091 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that might be an issue that on remand -- and this case is being remanded on a couple of issues that aren't even before this Court.
04-1528 +++$+++ 20092 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Not on the contributions, is it?
04-1528 +++$+++ 20093 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it's not on the contributions, but it is going back to the court on issues of transfers of money from national parties to State parties and on whether related or coordinated expenditures are, indeed, allowed to be an expenditure. So the case is going back to the trial court on those bases anyway.
04-1528 +++$+++ 20094 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But it's not going back on the expenditure limit.
04-1528 +++$+++ 20095 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
04-1528 +++$+++ 20096 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I mean, the problem, I mean, I was getting at and Justice Ginsburg is getting at, Judge Winter got at it. The -- the problem is -- is the -- the total limitation on an election cycle, including the primary, when the primary involves a challenge so that the challenger has an uphill fight presumably to start with in the primary. And if he's going to maintain an effective uphill fight in the primary and he's lucky enough to win, he's going to get to the general election and he's going to be broke. That's -- I mean, that's -- that's the problem that we're concerned with.
04-1528 +++$+++ 20097 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That has not been a problem that was reflected in the record either before the legislature or at trial. This is a facial challenge for the law, and you know, that situation of a primary candidate who, for whatever reason, felt that he or she needed to expend up to close to the expenditure limit -- it wouldn't be very prudent, but that could be an issue. But, you know, we do not control independent expenditures under our law, and we certainly don't limit volunteer services. There's a tremendous amount of campaigning that can go on between a primary and a general election even with a limited amount of funds available.
04-1528 +++$+++ 20098 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If the burden is on the candidate to establish that -- that somebody's expenditure is independent and shouldn't be counted against his expenditure limit.
04-1528 +++$+++ 20099 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. There is a presumption under our law --
04-1528 +++$+++ 20100 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ A presumption, which means the burden, to go forward and show the opposite, is on him. Right?
04-1528 +++$+++ 20101 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but it could be on the -- on the party because --
04-1528 +++$+++ 20102 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the money that he spends in overcoming that presumption is charged against his expenditure. Isn't that right?
04-1528 +++$+++ 20103 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Scalia. The Secretary of State reached a -- issued an opinion that we -- our office agrees with, that expenditures on attorneys for, you know, ballot access questions and the like are not in furtherance of the candidacy and would not apply against the expenditure --
04-1528 +++$+++ 20104 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The other side says the opposite. I'll ask them whether that's --
04-1528 +++$+++ 20105 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the -- the Secretary of State's public opinion that we, the enforcement authority, agree with is to the contrary.
04-1528 +++$+++ 20106 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May -- may I ask --
04-1528 +++$+++ 20107 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I suppose the Vermont courts could construe it more narrowly at some later point. I would hate to rest the opinion on that.
04-1528 +++$+++ 20108 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the -- under Vermont law, a presumption such -- such as this is not a burden -- creates no burden of persuasion, nor does it change the burden of proof.
04-1528 +++$+++ 20109 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, you know, I looked at your -- the -- the references in your brief for that proposition, and I did not see them borne out. You referred to a -- a footnote in the district court opinion which, in turn, refers to the remark of a sponsor of the amendment that -- that resulted in the presumption being in the law. And the only thing that was attributed to the sponsor was that the presumption should be regarded as rebuttable. The -- the footnote in the statement did not indicate that the presumption was a disappearing presumption, once the other side went forward with any evidence. So I don't see, based on your -- your citations, that the presumption goes away simply by -- by one party going forward with evidence.
04-1528 +++$+++ 20110 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if you -- if some entity that has the burden of proof to show, in fact, that it was a related or coordinated expenditure has the party on the one hand and the candidate on the other saying, we did not coordinate here, I didn't ask for it, I didn't approve it, and then where is the evidence?
04-1528 +++$+++ 20111 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The -- the point is what if we don't have that simple of a situation. Let -- let me ask you this. Maybe we can short-circuit this. I mean, do you represent as an -- as a statement of Vermont law that this Court should decide the case on the assumption that the presumption is a disappearing presumption, once evidence is offered against it?
04-1528 +++$+++ 20112 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1528 +++$+++ 20113 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-1528 +++$+++ 20114 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, credible evidence, yes. Yes.
04-1528 +++$+++ 20115 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is -- is an affidavit from the candidate enough credible evidence in your view?
04-1528 +++$+++ 20116 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1528 +++$+++ 20117 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And thereafter, all the -- all the candidate has to say is in an affidavit, no, it wasn't coordinated, and then the burden is on the State to show that it was.
04-1528 +++$+++ 20118 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the State is the party that's trying to prove that it was, in fact, a coordinated expenditure, under the law -- it would typically be a opposing candidate who tries to --
04-1528 +++$+++ 20119 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay, the opposing candidate or the State.
04-1528 +++$+++ 20120 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So Justice Brandeis said that there's room under our system for a courageous State to experiment.
04-1528 +++$+++ 20121 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Just can I ask a technical question here?
04-1528 +++$+++ 20122 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1528 +++$+++ 20123 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Just -- is -- is it the case or not the case that if I contribute my car to drive the candidate for Governor, let's say, between Burlington and Montpelier, and I buy the gas, does that count against the limit? Yes or no. I'm a volunteer and I buy gas and drive him back and forth.
04-1528 +++$+++ 20124 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, you drive. Then the answer is no.
04-1528 +++$+++ 20125 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. He drives.
04-1528 +++$+++ 20126 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but it's your car, you're there. No.
04-1528 +++$+++ 20127 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I'm not there. I lent him the car. (Laughter.)
04-1528 +++$+++ 20128 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. I got the idea. If he does -- if I do, it's not. What about I have a coffee -- coffee. I wanted to get the line. I see it. Coffee. I want to have coffee and donuts, free donuts because -- and coffee for people to come in. Is that counted or not?
04-1528 +++$+++ 20129 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As long as it's under $100.
04-1528 +++$+++ 20130 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. It's $200. Coffee and donuts are expensive. (Laughter.)
04-1528 +++$+++ 20131 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay? Count it or not?
04-1528 +++$+++ 20132 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't -- our coffee is not that expensive, but --
04-1528 +++$+++ 20133 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Donuts and coffee. In other words, it counts as long as it's over $100.
04-1528 +++$+++ 20134 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1528 +++$+++ 20135 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Under $100. Under $100.
04-1528 +++$+++ 20136 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Over $100 counts.
04-1528 +++$+++ 20137 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counts.
04-1528 +++$+++ 20138 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under $100, it does not. My time is expired.
04-1528 +++$+++ 20139 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel.
04-1528 +++$+++ 20140 +++$+++ TRUE +++$+++ MR. SORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
04-1528 +++$+++ 20141 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Wright.
04-1528 +++$+++ 20143 +++$+++ FALSE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: I'd like to return to a question that Justice Kennedy asked earlier about why, if there are examples of corruption that the public becomes aware of, why the public doesn't respond simply by voting the individual out of office. And I think it's important to point out that some of the most serious examples of corruption on this record or of the undue influence achieved by monetary concerns were not examples that ever became public except in the course of the trial of this case when we had witnesses come forward to testify about some of their own personal experiences in the legislature. By the very nature of the problem of candidates becoming unduly beholden to the interests that can provide the greatest sums for their campaigns, those kinds of incidents are not going to typically be a matter of discussion --
04-1528 +++$+++ 20144 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but I -- I thought that the point was that the public mistrusts their representatives because of large donations, and I thought the point being made was, well, if that's the case and the public sees that this fellow has gotten a $10,000 donation, the public will say this -- this fellow is in that -- is in that corporation's or that person's pocket.
04-1528 +++$+++ 20145 +++$+++ TRUE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the --
04-1528 +++$+++ 20146 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I won't vote for that person. You -- you don't have to show that -- out of the mouth of the candidate, that -- that he voted for the bill because he got $10,000. The mere fact that it's on the public record that he got $10,000, if -- if what you say is correct, that -- that people are worried about, the -- the corruptive effect of such donations, people should logically vote against that candidate who accepts so much money.
04-1528 +++$+++ 20147 +++$+++ TRUE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Two points on that, Your Honor. First of all, the problem of holding candidates accountable in that manner is greatly exacerbated when you have a system of unlimited spending in which all of the candidates involved feel compelled to go out and raise as much as they can in order to forestall the possibility of being outspent. Then when a voter says, well, why are you doing this, the candidate has a ready-made answer. If I don't do this -- you know, maybe I'd rather not, but if I don't, I'm going to be bested in the fund-raising arms race. And voters reluctantly have come to --
04-1528 +++$+++ 20148 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I thought --
04-1528 +++$+++ 20149 +++$+++ TRUE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- understand that that's --
04-1528 +++$+++ 20150 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- when you look at the -- the record, Vermont would be the last place that you'd be worried about it. The political culture, as we just heard, is that it's easy to go door to door, and that's what the Vermonters expect. And it doesn't take an arms race to get on your feet and go door to door. And it seems to me that there's a real dilemma on the respondents' side of the case between justifying low limits by saying you don't really need money to run effectively and at the same time suggesting that there's a serious problem with too much money.
04-1528 +++$+++ 20151 +++$+++ TRUE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but --
04-1528 +++$+++ 20152 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which is it?
04-1528 +++$+++ 20153 +++$+++ TRUE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- what we do have is candidates -- even though it is possible to run effective campaigns in Vermont for lower amounts, candidates nevertheless go out and raise often much more than what they need. Here's an example from the record. We had Senate candidate Vincent Illuzzi. In 1998, he raised $39,000, almost $40,000, for his Senate campaign. His challenger was able to raise almost nothing. He only spent $30,000 worth of that. Candidates don't need $39,000 or $30,000 to run an effective Senate campaign, but an incumbent that builds a war chest has the ability to deter serious challenges.
04-1528 +++$+++ 20154 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could candidates --
04-1528 +++$+++ 20155 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On your question -- the -- I'm sorry.
04-1528 +++$+++ 20156 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could candidates run effective campaigns if there were no -- with these contribution limits if there were no expenditure limits?
04-1528 +++$+++ 20157 +++$+++ TRUE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. The -- we believe the record strongly shows that. For example, there was a mayoral election in Burlington run under these limits during the time that the case was --
04-1528 +++$+++ 20158 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. I mean, if there were no expenditure limits, if candidates could expend as much as they want, could they raise enough money with these contribution limits --
04-1528 +++$+++ 20159 +++$+++ TRUE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1528 +++$+++ 20160 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- to run effective campaigns.
04-1528 +++$+++ 20161 +++$+++ TRUE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, because this Burlington mayor's race, as an example, was one in which there was no limit on -- on spending, and both candidates were able to raise amounts either similar to what they had raised in the past or at least amounts that met the campaign budget that they had sought to -- to follow. I think in looking at the level of the contribution limits, it's important again to understand the scale of politics in Vermont. If we want to compare them to Missouri, a $2,000 limit for a gubernatorial race in Missouri was approved by this Court, and in Missouri you had an election in 2000 where each candidate was spending $8 million or $9 million in a gubernatorial race. I mean, that compares very directly if you --
04-1528 +++$+++ 20162 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought the --
04-1528 +++$+++ 20163 +++$+++ TRUE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- did the same ratio for Vermont. Pardon me?
04-1528 +++$+++ 20164 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wasn't it the State auditor?
04-1528 +++$+++ 20165 +++$+++ TRUE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not the $8 million or $9 million.
04-1528 +++$+++ 20166 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I know, but didn't we have in front of us a limit, which I wrote was rather border, that involved a State auditor campaign?
04-1528 +++$+++ 20167 +++$+++ TRUE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In Missouri?
04-1528 +++$+++ 20168 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought so, in Shrink Missouri.
04-1528 +++$+++ 20169 +++$+++ TRUE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It may have been the State auditor, but it also the --
04-1528 +++$+++ 20170 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which is not quite the same political volatility perhaps, but --
04-1528 +++$+++ 20171 +++$+++ TRUE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but the --
04-1528 +++$+++ 20172 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I have a different question I'd like to ask you which I haven't heard addressed yet. On the expenditure limits, there is a case, Buckley v. Valeo, and the Court held in that case that expenditure limits are not constitutional. Now, whether I agree with that or don't agree with that, am I not bound by that? And insofar as you try to distinguish it, you've read what Judge Winter said about your efforts to distinguish it. And therefore, I'd like to hear why you think I'm not bound by a past precedent in an important matter, with which I may or may not have agreed at the time.
04-1528 +++$+++ 20173 +++$+++ TRUE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. We believe expenditure limits can be upheld without overruling Buckley v. Valeo, and that's for several reasons. First, Buckley created a rule of exacting scrutiny that applies to expenditure limits. That is not a rule of automatic invalidation. And very importantly, when Buckley declared that the interest in deterring corruption and its appearance was not adequate to support the expenditure limits, that was on a record in which neither spending nor contributions had been subject to meaningful limits prior to the time of FECA and the amendments that the Court was considering. There simply was no record to show the Court of how contribution limits alone would really work to address the problem of corruption and the appearance of -- of corruption and encouraging public confidence in government. Now --
04-1528 +++$+++ 20174 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought -- I thought what that case said and what many of our other cases say, with regard to expenditures in particular, is that you're not talking about money here. You're talking about speech. So long as all that money is going to campaigning, you're talking about speech. And when you say you don't need any more speech than this, that's a very odd thing for -- for a -- a United States Government to say. Enough speech. You don't need any more than this. And that's the reason the expenditure limits, as opposed to contribution limits, were regarded quite differently in Buckley and I think should still be regarded differently today. You're constraining speech. It's not money you're constraining. Contribution limits, you're constraining money, but when you say you can't expend more than this on your campaign, you're saying, no, no, no, this is enough speech. We're going to -- we, the State, are going to tell you how much you should campaign. That's very unusual in -- in American democracy.
04-1528 +++$+++ 20175 +++$+++ TRUE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think that's certainly why Buckley applied exacting scrutiny. But I think what Vermont understood is that political spending has inescapably a dual character. Yes, campaign spending enables many forms of speech, but it also has another side because higher and higher levels of campaign spending result in candidates who are beholden to the constituencies that can provide the greatest amounts of funds for their campaigns. And what you end up with, the consequence, is legislators who say, you know, I've lost the drug money and I can't afford to lose the food manufacturer money --
04-1528 +++$+++ 20176 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Limit the contributions.
04-1528 +++$+++ 20177 +++$+++ TRUE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- so I'm not going to --
04-1528 +++$+++ 20178 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That solves that problem. Limit the contributions.
04-1528 +++$+++ 20179 +++$+++ TRUE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1528 +++$+++ 20180 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you want to limit expenditures, even if it's the person's own money. No possibility of corruption. You're saying, no, this is enough speech. We don't want to hear any more from you. We, the State, will tell you how much campaigning is enough. That's extraordinary.
04-1528 +++$+++ 20181 +++$+++ TRUE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the -- the interests that Vermont is seeking to serve are fundamental to the core functions of government, preserving the quality of representative government, preserving the integrity of government, assuring the public that its officeholders can act in the best interests of the public and make decisions on the merits, not simply based on their need for campaign cash. And this question of accountability that's so important is tied to the ability to say, I've -- I've met my spending limits, I've raised all that I need to -- to raise. If somebody comes to me with contributions from a source that I don't feel comfortable taking, I can turn that down without suffering a tremendous competitive disadvantage. I think one of the other key features of the expenditure limits that Vermont seeks to impose here is that they will do so much to encourage competitive campaigns. We had a record in Vermont that showed that for the previous nine election cycles before the act was enacted, only one incumbent had been defeated for a statewide office. In the meantime, in the City of Albuquerque where they had spending limits for 25 years, every challenger who came out to challenge an incumbent mayor was successful. No one can say on that record that spending limits would do anything but to enhance competition. In the -- one of the other interests that I would like to turn to, before we close, is Vermont's interest in protecting the time of officeholders from the burdens and distractions of fund raising. We had a record in which seasoned politicians in Vermont were saying that candidates for office, even in Vermont, were spending as much time begging for funds as they do campaigning. We had a record in which a Senator reported leaving the floor of the Senate during a floor debate to take a call from a donor.
04-1528 +++$+++ 20182 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How do you -- how do you police that, though? Because an incumbent can -- has so many opportunities to go before the public that wouldn't necessarily be categorized as campaigning but as part of his or her official duties, while everything a challenger does is going to be credited against his account.
04-1528 +++$+++ 20183 +++$+++ TRUE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your --
04-1528 +++$+++ 20184 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You may answer the question.
04-1528 +++$+++ 20185 +++$+++ TRUE +++$+++ MS. WRIGHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. We believe that under almost any system, incumbents are going to still have advantages and no campaign finance system can fully address that. But we believe that if the challenger now has the ability to outspend the incumbent and the incumbent doesn't have that additional advantage of being able to outspend the challenger, as is most often the case, then competition can only be enhanced.
04-1528 +++$+++ 20186 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Bopp, you have 4 minutes remaining.
04-1528 +++$+++ 20188 +++$+++ FALSE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. The one example that they keep going back to regarding the President of the Senate tells the breadth of this challenge. As long as Vermont allows periodic elections, incumbents are going to consider the effect that their votes have on future elections. And -- and while it makes it more scandalous to say we will lose the food manufacturers' money, what they are concerned about is losing the food manufacturers' support. So as -- if this the definition of corruption, it is sufficient now to -- for the State of Vermont to abolish elections generally. Now, secondly, as to the effect on challengers, the record demonstrates that challengers -- and there's expert testimony to the fact that challengers are more frequently challenged in primaries than are incumbents, and the Randall brief on pages 16 and 17 point out the testimony of people who have been subject to a primary and demonstrates that they are not able to mount an effective campaign in the general. Furthermore, the expenditure limits have the perverse result of depriving challengers of more money than incumbents, probably making them attractive to incumbents. In the Senate, for instance, incumbents would be deprived of 20 percent of their total resources, while challengers would be deprived of 36 percent of their total resources.
04-1528 +++$+++ 20189 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't understand how that comes. How does that come about?
04-1528 +++$+++ 20190 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It comes about because challengers frequently in Vermont actually spend more than do incumbents. I -- I know that -- that the general perception is the opposite, but the general perception is not true in Vermont. And -- and that points to the -- the fact that the way this law is constructed strongly suggests that is -- it is seeking to favor incumbents. Furthermore, we had expert witness testimony on the effect of contribution limits on competitive races. The -- we had -- Mr. McNeil testified in examining the competitive races in the 1998 election that the vast majority in both the House and the Senate would not be able to mount an effective campaign with the available resources that would have been available after imposing the contribution limits. And, of course, these were in the amounts of 28 percent in the Senate, 22 percent in the House, which is way beyond the 5.1 percent that this Court in Buckley thought that could be made up by the imposition of a $1,000 limit. I mean, this -- this law is so constructed that it would make it virtually impossible for, for instance, countywide candidates in Chittenden County, a county of 150,000, the largest county in Vermont -- they would be limited to $4,000 for the primary and the general election. That's 3 cents for each person in Chittenden County. And, of course, this is an important county. Senator Leahy came from that county as State's attorney and became the United States Senator. And finally, with respect to the rebuttable presumption, actually the -- the statute answers the question of whether or not this presumption disappears. If you look at 2809, subsection (e), the last sentence says, the findings and determination of the court -- and this is in this court proceeding by your opponent that is trying to claim that this spending over here is actually yours -- that the findings and the determination of the court shall be prima facie evidence in any proceeding brought for violation of the chapter. So it doesn't go away. The rebuttable presumption never goes away. And, in fact, each person -- each candidate and each independent spender can look at the rebuttable presumption requirement and say, I have to file a report and that governs my report. Thank you.
04-1528 +++$+++ 20191 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
04-1544 +++$+++ 20195 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in 04-1544, Vickie Lynn Marshall v. E. Pierce Marshall. Mr. Richland.
04-1544 +++$+++ 20197 +++$+++ FALSE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: This is a bankruptcy case, but it is a bankruptcy case in which the Ninth Circuit has made -- come to the extraordinary conclusion that the Federal bankruptcy court has no jurisdiction over the chief assets of the bankruptcy estate. That asset, a -- a tort cause of action, was to be the main source of the payment to the creditors. And the Ninth Circuit came to this conclusion because it gave a very broad interpretation of the so-called probate exception to Federal jurisdiction. As I will explain, the Federal bankruptcy jurisdiction statutes are incompatible with the concept of having adopted a probate exception to Federal jurisdiction, particularly to Federal bankruptcy jurisdiction.
04-1544 +++$+++ 20198 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Any exception whatever.
04-1544 +++$+++ 20199 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. There is no exception to that. The -- the statute itself is structured in such a way that its jurisdiction of the bankruptcy court depends on the relationship of the matter to the bankruptcy estate.
04-1544 +++$+++ 20200 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So if -- if the contention in the -- in the bankruptcy proceeding is that the will which has been probated by the State probate court is, in fact, not the true will and that under the true will, the bankruptcy estate would get money, you think the bankruptcy court would -- would have jurisdiction to probate the will.
04-1544 +++$+++ 20201 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. Now, the question is, of course, that's an attack on a probated will, I believe, and I think that this Court's jurisprudence also supports the notion that --
04-1544 +++$+++ 20202 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Well, I'm willing to -- to move it back. I mean, that's -- that's even harder for you. But let's assume that the will is in probate but has not yet been probated. Do you think the bankruptcy court has jurisdiction to decide which will is the true will?
04-1544 +++$+++ 20203 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- the bankruptcy jurisdiction statute states that --
04-1544 +++$+++ 20204 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes or no.
04-1544 +++$+++ 20205 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The answer is yes, it does --
04-1544 +++$+++ 20206 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right.
04-1544 +++$+++ 20207 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and it must have that power to be able to do so because the bankruptcy jurisdiction statute states that the court has jurisdiction, in rem jurisdiction, exclusive in rem jurisdiction --
04-1544 +++$+++ 20208 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What if the rem --
04-1544 +++$+++ 20209 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- over all assets of the --
04-1544 +++$+++ 20210 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- what if the rem is in another court before the bankruptcy begins? What if the res is within -- is in another court?
04-1544 +++$+++ 20211 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, yes, Justice Ginsburg. 28 U.S.C., section 1334(e) states the bankruptcy court shall have exclusive jurisdiction, in rem jurisdiction, over the bankruptcy estate, and that has been interpreted by the courts as meaning that it has paramount jurisdiction in the sense that the normal in custodia legis doctrine does not apply where it is a bankruptcy court case.
04-1544 +++$+++ 20212 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So even -- even if property is in the custody of another court in the probate proceeding and the bankruptcy proceeding comes later, the bankruptcy proceeding would sweep whatever assets are before the probate court into the bankruptcy.
04-1544 +++$+++ 20213 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that is correct, Your Honor, and there have been courts that have held that with respect --
04-1544 +++$+++ 20214 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you want to stand on this position, Mr. Richland, or do you have a lesser position --
04-1544 +++$+++ 20215 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's certainly not --
04-1544 +++$+++ 20216 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that -- that might cause you to win? Because -- (Laughter.)
04-1544 +++$+++ 20217 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it certainly is not necessary, of course, to -- to -- for us to prevail in this case. However, I think it is an important principle to interpret the -- the bankruptcy jurisdiction statute, look at the language of that statute, and determine what Congress intended from that. And -- and I think it also is a dangerous thing to get into, implying exceptions into that statute. But -- but let me state this. Obviously, in this case we have an action, the -- the in rem jurisdiction of the bankruptcy court over the chosen action, that is -- is miles away from the probate of -- of a will. The particular cause of action involved here was an interference with an inter vivos gift. And I think it's important to realize that that was intended to be a gift that would be complete during the lifetime of the decedent. That fact means that this case really has almost nothing to do with probate or probate jurisdiction.
04-1544 +++$+++ 20218 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you did file a challenge to the probate of the will, didn't you, in Texas?
04-1544 +++$+++ 20219 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There was a challenge filed to the probate of the will originally by the -- the brother of the respondent in this case, and eventually yes, our client did join that some years later after it was first filed. So that would have been an alternative.
04-1544 +++$+++ 20220 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And wasn't the ground for that that it would be inconsistent with the inter vivos trust that you are asserting in the bankruptcy court proceeding?
04-1544 +++$+++ 20221 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, that was not the case, Your Honor. The -- the grounds for that was the belief that there had been undue influence with respect to the will. But the inter vivos gift claim -- a tortious interference with inter vivos gift claim -- that was added only many years later in the year 2000. That was 3 years, 3 and a half years after that same action was pending in the bankruptcy court. And the only reason it was raised at that time was that respondent went to the Federal court and said -- and interposed the probate exception and argued at that time there is no jurisdiction here. Therefore, out of an excess of caution, our client went to the Texas probate court and said, well, I will -- I will make this -- this claim here. In fact, once there was success in the bankruptcy court and the bankruptcy court said, now I have made a determination on that claim, our client did dismiss that claim and dismissed all affirmative claims with respect to the probate estate. I think the important thing to realize here, with respect to both this particular claim and with respect to the bankruptcy jurisdiction statute in particular, is that the -- that the breadth of the -- what that statute does is, it -- it announces that rather than having jurisdictional preclusions, there will be preclusions based on abstention. It has broad abstention provisions in section 1334(c), and indeed section 1334(c)(2), which is the mandatory abstention --
04-1544 +++$+++ 20222 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You like this -- apparently you like this argument, although you say you're miles away from probate. Well, if you want to get into that argument, I guess the strongest argument against keeping it -- for keeping it is bankruptcy jurisdictional statutes shouldn't be interpreted differently than diversity jurisdiction or any other statute, and Markham at least recognizes that there is such a thing as the probate exception and that Congress implicitly adopted it, just as they did the domestic relations exception. Therefore, if we are going to find for you on this ground, we'd have to go back and overrule that case and a lot of other water that's flowed over -- under the bridge or wherever the water flows. (Laughter.)
04-1544 +++$+++ 20223 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And we ought to take what's given as given, whatever the true meaning of ecclesiastical courts having jurisdiction over certain probate matters or not in the 18th century.
04-1544 +++$+++ 20224 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, of course, if one looks at 1334(c)(2), one sees that Congress itself contemplated that there would bankruptcy jurisdiction under circumstances where there was no diversity jurisdiction and when there was no Federal question jurisdiction. So it -- it certainly is true that rolled into the whole notion of mandatory abstention is the possibility that the bankruptcy court will have before it matters over which there would be no diversity jurisdiction.
04-1544 +++$+++ 20225 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you could say the same thing about diversity jurisdiction, that Congress contemplated that there would be diversity jurisdiction where there was no bankruptcy jurisdiction and no Federal question jurisdiction. I mean, I don't see what that proves.
04-1544 +++$+++ 20226 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, excuse me, Justice Scalia, but what I think it does prove is that when Congress enacted in 1978 the rather comprehensive change that it made to the bankruptcy statutes, that it intended to exercise as broad a jurisdiction as possible so that the bankruptcy courts would be able to control the bankruptcy estate and make determinations as to how the creditors could best be protected. Let me -- let -- yes. I'm sorry.
04-1544 +++$+++ 20227 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm just saying no more so than -- than when Congress enacted diversity jurisdiction. It intended it to apply, you know, uniformly.
04-1544 +++$+++ 20228 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To -- to apply very broadly according to its terms.
04-1544 +++$+++ 20229 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1544 +++$+++ 20230 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And, of course, this Court in -- first in Lear v. Armstrong said, yes, this applies very broadly. However, there is an exception and the exception is purely the probate of a will -- the probate of a will and that alone. And this Court has really hewn very closely to that very narrow limitation since that point in time.
04-1544 +++$+++ 20231 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's true.
04-1544 +++$+++ 20232 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do think that it's important, however, to realize that if one examines this Court's probate exception jurisdiction over the years, it has consistently determined that the -- the narrowness of that exception must be confirmed, and as late as the Markham case, this Court has held that -- that Federal courts have jurisdiction to decide all kinds of issues with respect to wills, all kinds of issues with respect to trusts. Certainly this Court has said that it can determine questions such as how to interpret the provision of a will. It has even held that Federal courts can determine whether a will is invalid. It can make that determination if the --
04-1544 +++$+++ 20233 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But none -- none of this has to be done for you to win this case, does it?
04-1544 +++$+++ 20234 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You are absolutely correct.
04-1544 +++$+++ 20235 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then I -- I wish we'd stick to this case.
04-1544 +++$+++ 20236 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'm happy to do that, Your Honor. This case is an outlier. I believe that is true. This case is so far from the potential of any probate exception that, although I felt that it was important to be able to explicate the -- the principles involved here, I --
04-1544 +++$+++ 20237 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You want to look moderate.
04-1544 +++$+++ 20238 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh --
04-1544 +++$+++ 20239 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does this case involve anything more than the enforcement of an in personam tort judgment if you are to win?
04-1544 +++$+++ 20240 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it would not. That is all that's involved.
04-1544 +++$+++ 20241 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it did involve, at least the bankruptcy court thought, the judgment invalidating the inter vivos trust. Was that necessary to the decision? Or am I -- correct me if I'm --
04-1544 +++$+++ 20242 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I don't believe --
04-1544 +++$+++ 20243 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- correct me if I'm wrong about that.
04-1544 +++$+++ 20244 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is -- that is incorrect, Justice Kennedy. It did not invalidate the inter vivos trust. What it held was that as part of the evidence that it was considering, in terms of the intent, the donative intent, that one portion of that inter vivos trust, an amendment to it, had been forged, but it did not invalidate it. In fact, it -- it expressly held that the -- the inter vivos trust is valid, and that was a basis for its conclusion that, indeed, this particular claim was also valid. This claim was a cause of action for interference with an inter vivos gift.
04-1544 +++$+++ 20245 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I guess what you're going to hear in 5-10 minutes --
04-1544 +++$+++ 20246 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1544 +++$+++ 20247 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you might as well deal with it now --
04-1544 +++$+++ 20248 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Why not?
04-1544 +++$+++ 20249 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- is that the inter vivos -- a -- a claim for a -- the Texas tort of interference with inter vivos gift, according to Texas law, must be brought at the time of the probate proceeding. And for that reason, it is bound up with probate, and for that reason, they didn't have jurisdiction.
04-1544 +++$+++ 20250 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, A -- A, we do not interpret Texas law as so providing.
04-1544 +++$+++ 20251 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Now, let's suppose you're --
04-1544 +++$+++ 20252 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But -- but assuming --
04-1544 +++$+++ 20253 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- suppose they're right about their interpretation.
04-1544 +++$+++ 20254 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Assuming that they're right for that -- by their interpretation, this Court has repeatedly said that it -- that a -- a State court cannot -- by simply assigning matters that otherwise would be heard by Federal courts to the probate court, that it can, in effect, shield those --
04-1544 +++$+++ 20255 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the strongest case for you on that is?
04-1544 +++$+++ 20256 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, I think Hess --
04-1544 +++$+++ 20257 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You said this Court has repeatedly said. So what --
04-1544 +++$+++ 20258 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Said it over and over, but Hess v. Reynolds from 1885, which says that merely the convenience of a -- a State court to, you know, assign matters to -- to its probate court. That was a case in which a debt --
04-1544 +++$+++ 20259 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- but this case involves a lot more than convenience. It involves a substantial amount of assets that is either going to pass to one person under probate or is not going to be available for passing to that person because of the inter vivos gift. That seems to be more closely related to the core probate matters.
04-1544 +++$+++ 20260 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well in fact, Chief Justice Roberts, I don't believe that's the case. Nothing passed by way of probate in this case. The -- there were no assets in the probate. What happened here was that all of the assets -- and the record shows this, and I don't believe it's -- that there is any dispute here. All of the assets had passed to the respondent in this case before the will and the trust were actually submitted to the probate court. Once again, this is a tort claim and it's a tort claim only for an interference. If those assets had never gone to respondent in this case, there would, nevertheless, still be a good tort claim. If, for example, those assets had been passed to respondent's child or to another brother, the interference itself --
04-1544 +++$+++ 20261 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Richland --
04-1544 +++$+++ 20262 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Excuse me, Justice --
04-1544 +++$+++ 20263 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- what seems to me to be involved here is what is not uncommon in our Federal system, that is, two proceedings, both dealing with the same or closely related subject matter. It is not infrequent that you have parallel proceedings in Federal court and State court, and then the one that gets finished first -- that judgment is binding on the other. And as I understand it, the probate proceeding concluded first before the district judge reviewed the bankruptcy judge's opinion.
04-1544 +++$+++ 20264 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, you're quite correct that issues -- that -- that the principles of preclusion ordinarily would deal with the kinds of issues here, and -- and we think that that -- those -- that should be what governs this case. But I don't believe that it is correct to say that the probate court judgment preceded that of the bankruptcy court. The bankruptcy court judgment came first. A year later the probate court judgment then --
04-1544 +++$+++ 20265 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I'm -- I'm assuming -- and correct me if I'm wrong about this -- that the bankruptcy court makes a proposed opinion. It doesn't become a binding opinion until it's affirmed by the district court.
04-1544 +++$+++ 20266 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Unless it's a core matter.
04-1544 +++$+++ 20267 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1544 +++$+++ 20268 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And here we claim that it is a core matter.
04-1544 +++$+++ 20269 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if it isn't a core matter. I think you lost on that in the district court.
04-1544 +++$+++ 20270 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it isn't a core matter, then in any event the district court here held that there was no preclusion, and it held it for a number of reasons.
04-1544 +++$+++ 20271 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that was not reviewed by the Ninth Circuit.
04-1544 +++$+++ 20272 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. That was not reviewed by the Ninth Circuit. But that would be the -- the appropriate manner of review.
04-1544 +++$+++ 20273 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That would -- that would be the -- if you -- if you're correct about the limits of the probate exception, that issue would be open for review by the Ninth Circuit.
04-1544 +++$+++ 20274 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It certainly would, Justice Ginsburg. We agree with that. And if I may reserve the rest of my time for rebuttal.
04-1544 +++$+++ 20275 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel.
04-1544 +++$+++ 20276 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-1544 +++$+++ 20277 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Maynard.
04-1544 +++$+++ 20279 +++$+++ FALSE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Two independent principles require reversal of the Ninth Circuit's decision. First, the probate exception to Federal jurisdiction is a will-specific rule and it does not apply beyond the context of wills to other types of will substitutes like inter vivos trusts. Second, even with respect to wills, it is a very narrow exception that is no bar to deciding the rights to a decedent's estate, construing a will, or determining the testator's intent. There are only three things under this Court's precedent that a Federal court cannot do. The first is to probate a will, that is, to determine the formal key requisites of the validity of a will; second, to annul an already probated will; and three, to take in rem jurisdiction over a res over which a State court has already taken in rem jurisdiction. But that is it, and none of those are applicable here. The justifications for the probate exception do not apply to will substitutes. The -- the probate exception is based on the peculiar nature of a will, that is, that unlike inter vivos trusts, unlike the current modern will substitutes, a will is not valid -- it has no legal effect. This Court's opinions have said that on several occasions -- unless it is probated. Therefore, a will must be probated even if there is no dispute about its validity before any title can pass. Not so with trusts. In fact, that is the whole point that people engage in the modern world substitutes is to avoid the necessity to go to the probate court in order to have their assets passed to their heirs. The second ground for this Court's probate exception is a historical one based on the Court's understanding of the limits of the equity courts in England. Whatever the merit of that historical analysis, it has no application to trusts, which have always been the problems of equity. The Federal Government has a strong interest in the Court not expanding the Federal exception -- the -- the probate exception to Federal jurisdiction, particularly in the sweeping manner that the Ninth Circuit has done. It is not uncommon for the tax consequences of an estate planning instrument, such as a trust, to turn on whether or not the trust is valid or invalid. And the Congress has provided Federal jurisdiction to the United States to bring its -- most of its disputes in the Federal court system. Secondly, more generally, Congress has determined what types of disputes should be in the Federal courts and has passed broad statutes providing the courts with Federal jurisdiction that the courts have an obligation to exercise, if it exists.
04-1544 +++$+++ 20280 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Except if it's a will -- will-specific. In other words, you -- it seems to me you're in for a penny and in for a pound. You recognize the existence of this exception in certain cases, and then you argue against it by saying, well, Congress wrote the statutes broadly. The latter argument disproves your first point.
04-1544 +++$+++ 20281 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe it does, and perhaps I'm -- I'm -- I wasn't making clear what my argument is. The Court has adopted a very narrow probate exception with respect to the probating of the will and annulling a probated will, but that is it. And that analysis was based on a -- the historical -- the Court's view of the historical limits of courts of equity and therefore was an interpretation of the Federal diversity statute. Under the logic of Ankenbrandt, one can assume -- one may -- the Court may assume that's carried forward. But certainly that -- for the reasons I've said, that rationale, those justifications, for that narrow will rule do not apply to trusts, which have always been the province of equity, and especially given the questionable historical underpinnings of the exception, even the narrow exception that does appear to exist, there's no justification for expanding that beyond its current confines. As this Court recognized in Ankenbrandt, the lower courts had taken the -- the so-called domestic relations exception beyond this Court's very narrow limits, and this Court brought -- brought it back to its origins. And -- and the Federal Government believes that -- that the same would be appropriate here with respect to the probate exception.
04-1544 +++$+++ 20282 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Maynard, it's my understanding that a lot of this law developed out of the dicta in the Markham case. Do you think the dicta in the Markham case was an accurate description of the prior history?
04-1544 +++$+++ 20283 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was probably not a very precise history, Justice Stevens. I do think one can read Markham, however, especially if one reads it in the context of the cases it cites for its principles, to hold what we are saying now, which is that Federal courts have no jurisdiction over pure probate matters, that is, no jurisdiction to probate a will. And its interference language, I believe, was its statement of the in rem v. in rem jurisdiction principle, which in fact isn't really a probate jurisdiction principle at all.
04-1544 +++$+++ 20284 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What do you mean by no jurisdiction to probate a will? Could -- could -- does that exclude the possibility of a bankruptcy court deciding for itself where there are contested wills that in its in view the -- the right -- the valid will is a certain one and that, therefore, the bankruptcy estate includes this fund or doesn't include this fund? Is that probating the will?
04-1544 +++$+++ 20285 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the United States hasn't taken a position on the broader argument about whether or not the --
04-1544 +++$+++ 20286 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if that isn't probating a will, the exception for probating a will doesn't -- doesn't amount to a hill of beans, does it?
04-1544 +++$+++ 20287 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If -- if the question you're asking me is what does it mean to probate a will --
04-1544 +++$+++ 20288 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1544 +++$+++ 20289 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the -- the probate of a will requires determining that it has the appropriate formal prerequisites, which in most States is appropriate number of signatures that the testator was coherent, competent to make a will and that there was no undue influence.
04-1544 +++$+++ 20290 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, and that this is -- that this is the -- the last will and testament and that there is not some other one.
04-1544 +++$+++ 20291 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, yes, that there's no competing will.
04-1544 +++$+++ 20292 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. Now, can -- can the bankruptcy court determine that, that the -- that the proper will and testament of this decedent is this one? We're not probating it. No, no.
04-1544 +++$+++ 20293 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
04-1544 +++$+++ 20294 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We don't pretend to probate it. We're just saying that this happens to be the true will and testament.
04-1544 +++$+++ 20295 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's conceivable that if that determination went to a -- an element of, for example, a tort claim and that the person were not -- were not seeking to take under the will, it is possible. This Court's precedent doesn't address that precise question. The United States hasn't taken a position on whether or not bankruptcy jurisdiction, ala the logic in Ankenbrandt, encompasses the narrow probate exception that we concede exists because it's not necessary to decide this case. The -- the petitioner's claim is far beyond anything that the probate exception has ever applied to. The respondent suggests that States have an overriding interest in having one forum resolve all probate-related disputes. This Court has repeatedly, for over 150 years, rejected that exact proposition -- Justice Breyer, Payne v. Hook, Hess v. Reynolds, McClellan v. Carland, which this Court cited last term in Exxon Mobil -- and it was the basis of Markham's reversal of the Ninth Circuit decision that the Federal jurisdiction is not determined by the scope and extent of the State's decisions with respect to where to send its own citizens with respect to disputes that don't otherwise have a basis for Federal jurisdiction. The only place in this --
04-1544 +++$+++ 20296 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Maynard, you said at one point it's not necessary for you to decide this, but there is vast confusion in the lower courts about the extent of the probate exception. And so I take it that your -- what you began -- what you began with is -- I wrote them down. That's it?
04-1544 +++$+++ 20297 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's what the United States believes the limit of the exception is, and the -- let me be clear. The United States has a strong interest in having this Court clarify the exception. That is where the confusion lies in the court of appeals. That is where the United States feels like its interests are at risk. So although the petitioner's claim is well outside the exception, the United States' interests lie in having the Court clear up the confusion and reject the sweeping and expansive view of the probate exception that the Ninth Circuit has announced.
04-1544 +++$+++ 20298 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And in addition to Markham, what other case of this Court do you think spells out the proper bounds?
04-1544 +++$+++ 20299 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I think the -- Waterman has a -- has a good summary of the -- of the limits. I think even the two cases on which the respondent principally rely, Sutton and O'Callaghan, lay out the proper scope of the rule. Those -- both of those cases involved a claim that depended on having a will that had been probated declared invalid, and that is within the narrow confines of the exception. But it is a will-specific rule. The -- and, Justice Stevens, back to your question. The one thing about Markham is that there's no general interference principle, and that's where the --
04-1544 +++$+++ 20300 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You know there are a lot of scholars who think that Markham is the source of most of the confusion, and so that's why I was asking whether you think we should -- to clear up, which you're suggesting we should do, we should reexamine some of that dicta or we should just stick to the holding.
04-1544 +++$+++ 20301 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would -- I would -- you can -- it would be helpful to -- to clarify what the Court meant in Markham. I think the holding in Markham is correct.
04-1544 +++$+++ 20302 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ With -- with new dicta of our own? (Laughter.)
04-1544 +++$+++ 20303 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It will probably be necessary, to -- to rule on the case, to make some holding about what the scope of the exception is, Your Honor. And the -- the -- but, Justice Stevens, the --
04-1544 +++$+++ 20304 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We could just say whatever its scope is it ain't this. I mean, couldn't we do that?
04-1544 +++$+++ 20305 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Court certainly could resolve it that way, Your Honor. But, Justice Stevens, the -- the -- Markham, I do think, makes clear what interference is and is not by its holding. And on page 494 of Markham, it says, where the final judgment does not undertake to interfere with the State court's possession, save to the extent that the State court is bound by the judgment to recognize the right adjudicated by the Federal court. So that is not the type of interference that runs afoul of the rule.
04-1544 +++$+++ 20306 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Ms. Maynard. Mr. Brunstad.
04-1544 +++$+++ 20308 +++$+++ FALSE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The probate exception exists precisely to prevent what happened in this case, a Federal court enjoining ongoing probate proceedings in the middle of a probate trial, a Federal court determining that the decedent's estate plan was invalid, a Federal court's reallocation through a damage claim of the decedent's assets, contrary to the value of the estate plan, a Federal court's creation of a novel cause of action --
04-1544 +++$+++ 20309 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, is it -- is it correct -- I just want to be sure I follow you -- that they determined that the estate plan was invalid?
04-1544 +++$+++ 20310 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, Justice Stevens. At petition appendix 123 to 126, the district court determined that the -- that J. Howard's living trust was a forgery, that there were pages that were substituted --
04-1544 +++$+++ 20311 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But this is all -- this has nothing -- I mean, I -- you have the total differently -- different understanding than I do of this case, and I did read Judge Carter's opinion. I thought that case simply held that because your clients had interfered with an effort by J. Howard to give quite a few millions of dollars to Vickie Marshall -- because of that interference, they had committed the tort of inter vivos interference with a gift, and they had to pay damages. Now, they said a lot of things by way of what the evidence was. Indeed, they did say, as you point out, that your clients forged three pages of the will. But that was simply evidence of their bad intent, and it did not invalidate anything in the probate proceeding, as I read it. Now, what have I said that's not right?
04-1544 +++$+++ 20312 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, the answer to your question, I think, depends upon the fact that opposing counsel has studiously avoided actually revealing what his claim is. I think we have to focus on the -- her exact claim. As a matter of fact and as a matter of law, she did not prevail --
04-1544 +++$+++ 20313 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not interested in what he said. I'm interested in what Judge Carter said --
04-1544 +++$+++ 20314 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, Your Honor.
04-1544 +++$+++ 20315 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- because that, it seems to me, is -- and what is it that Judge Carter did that was wrong in this respect?
04-1544 +++$+++ 20316 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Judge -- Judge Carter understood quite clearly that in order for her claim to proceed as a matter of fact and as a matter of law, he had to invalidate her living trust. And let me explain why that was so. That was so because her claim is that J. Howard intended to give her a catchall trust. The argument is that Pierce blocked the catchall trust from being funded by rendering the living trust irrevocable in July of 1994. Judge Carter found that the catchall trust was drafted in December of 1994. She can only have a claim -- now, all of J. Howard's assets were in the living trust. She can only have a claim -- the catchall trust could only have been funded or prevented from being funded if the living trust was, in fact, validly rendered irrevocable. To prevent -- to -- to counter that, she says, no, the living trust was invalid. As a matter of fact, she can have no claim unless the living trust is rendered invalid. Judge Carter understood that and he expressly concluded that it was a forgery. Now rendering --
04-1544 +++$+++ 20317 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't -- isn't it the case that she can have her claim and she can prove her claim, but she may not be able to collect the judgment unless the living trust is invalid? But that's not what we're litigating here, is it?
04-1544 +++$+++ 20318 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, as a matter of law, she cannot have her claim because the two cases we rely on, Neill v. Yett and Thompson v. Deloitte, the two Texas cases, establish as a predicate to any tortious interference claim, she must demonstrate that the estate plan, the living trust, was invalid as a matter of Texas law. And that is exclusively under Texas law for the Texas probate court to decide. Now --
04-1544 +++$+++ 20319 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why does she have to show that is invalid as distinct from showing that another trust, favorable to her, was not created and it was not created because of the tortious conduct of your client?
04-1544 +++$+++ 20320 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because, Justice Souter, under Texas law when the -- the probate court determines the validity of an estate plan, it forecloses, as a matter of law, all expectancies contrary to those that are part of the estate plan.
04-1544 +++$+++ 20321 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let me -- let me stop you there because this is something I didn't understand in the brief. You speak of the Texas probate court determining the validity of an estate plan.
04-1544 +++$+++ 20322 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-1544 +++$+++ 20323 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I take it the Texas probate court determined the validity of a will here.
04-1544 +++$+++ 20324 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-1544 +++$+++ 20325 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It determined the validity of -- of a pourover trust. Is that correct?
04-1544 +++$+++ 20326 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, it did.
04-1544 +++$+++ 20327 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right.
04-1544 +++$+++ 20328 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The living trust.
04-1544 +++$+++ 20329 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Isn't it the case that the two Texas determinations can be respected and still, in the Federal court, enter a judgment for tort liability against your client?
04-1544 +++$+++ 20330 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Souter, and the reason why is because her cause of action is a State law cause of action, and under Texas law, putting aside the fact that no Texas court has ever recognized a cause of action for tortious interference --
04-1544 +++$+++ 20331 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's in -- you may be right on that, but that's not what -- what we're here for.
04-1544 +++$+++ 20332 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. Putting that aside, under Texas law -- and the Deloitte case and the Neill v. Yett case conclusively established this, and there's no contrary decisions in Texas -- that once the probate court determines an estate plan is valid, it conclusively determines the universe of persons with legitimate expectancies.
04-1544 +++$+++ 20333 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But when you speak of estate plan, you are -- you seem to be talking in global terms; i.e., that there could have been no other disposition of assets by the decedent or on behalf of the decedent except those which the Texas court is recognizing, the trust, the will. Is that what the Texas court does, or does the Texas court say, the will is good, the trust is good?
04-1544 +++$+++ 20334 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Texas courts have conveniently described for us Justice -- Justice Souter --
04-1544 +++$+++ 20335 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In other words, is it preclusive of everything else? That's what I'm getting at.
04-1544 +++$+++ 20336 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, exactly so, Justice Souter. And in the Thompson case itself, the -- the Texas court says, when the probate court admitted the 1989 will to probate, it necessarily found that Mr. Thompson signed the will with testamentary capacity and that it reflected his intent, was not the result of coercion or under influence, and was valid. And the court continued, as a matter of law, the final probate court judgment bars any claim that appellees tortiously interfered with any inheritance --
04-1544 +++$+++ 20337 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That -- that sounds to me like a matter of preemption, but -- but -- or not preemption but, you know, res judicata. But just out of curiosity or -- because I think it is relevant, did the Texas probate court have in front of it the documents among the lawyers that the district judge, Judge Carter, relied upon in showing that there was an intent to create the catchall trust?
04-1544 +++$+++ 20338 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Breyer. Everything --
04-1544 +++$+++ 20339 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It had all those documents.
04-1544 +++$+++ 20340 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Breyer. Everything the district court had and more was examined, adjudicated in the 5-and-a-half-month jury trial in the Texas probate court exhaustively.
04-1544 +++$+++ 20341 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So why isn't that, as Justice Breyer prefaced his question, an issue of preclusion rather than, as you frame it, an issue of jurisdiction?
04-1544 +++$+++ 20342 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Chief Justice Roberts, the probate exception has always been jurisdictional, and the reason why it can't be subsumed by res judicata or collateral estoppel -- we believe we win on those grounds, but the reason why the probate exception can't be subsumed within those doctrines is because it applies even before you have a State court judgment. It prevents a Federal court from determining an estate plan from being invalidated --
04-1544 +++$+++ 20343 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why should it? The probate exception is court-created. Congress passed no law that said it. Congress gave the Federal courts jurisdiction in certain categories of cases and expected them to exercise that jurisdiction. Since our jurisdiction is statutory and the probate exception was made up by the courts, shouldn't we interpret it as narrowly as possible, perhaps even do away with it because it lacks any statutory basis?
04-1544 +++$+++ 20344 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, the probate exception, like the domestic relations exception, is best conceived as a presumption that when Congress establishes a font of Federal jurisdiction, it does not intend that jurisdiction to be extended to interfere with probate proceedings. That is properly a jurisdictional doctrine in this case because it is never appropriate for a bankruptcy court to invalidate or validate a will and -- or an estate plan. And that is a necessary element of Vickie's claim.
04-1544 +++$+++ 20345 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you say -- you say an -- an estate plan. Most people would think insurance policies are part of their estate plan, and if it's alleged that there was a fraudulent alteration of the beneficiary designation in the insurance policies, is that within the Texas probate court jurisdiction?
04-1544 +++$+++ 20346 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, no. Here we have -- when I say estate plan, I mean the living trust and the will operating together.
04-1544 +++$+++ 20347 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, there's -- there's a further irony here in that revocable trusts are always promoted on the grounds that it keeps us out of probate. And now you're -- you're insisting that it has to be in probate.
04-1544 +++$+++ 20348 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Kennedy, the living trust here did two things that a will does. It provided for the succession of J. Howard's property upon his death, and it provided for the payment of his last -- last illness expenses and his -- his debts. It is quintessentially a will substitute in the sense that it also provides for the succession of his property. In this case --
04-1544 +++$+++ 20349 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it isn't probated. That's -- it is, indeed, a will substitute. The whole purpose of doing it is to avoid probate.
04-1544 +++$+++ 20350 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But in this case, Justice Scalia, the will and the -- the living trust acted together. The probate court had exclusive jurisdiction over both of them and the challenges to them. Vickie challenged the living trust, even before J. Howard died. Those proceedings continued on in the probate court, and --
04-1544 +++$+++ 20351 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but as Justice Breyer indicated, can't you just, for purposes of understanding the cause of action as asserted by Vickie Marshall here, just say, we will assume the trust is valid, we will assume the will is valid? All we're saying was that there's a tort and he's going to be liable to us in tort.
04-1544 +++$+++ 20352 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because, Justice Kennedy, again, a critical element of her cause of action is the invalidity of the trust as a matter of fact and law.
04-1544 +++$+++ 20353 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why? Why? Why? That is to say, what the finding is, is that there was a different matter, a catchall trust, and he told the lawyers, go draw it up so I can give gifts to her, the increase in the value of my property during the 13 months we're married, do it, and they never did it. Now, that seems to have nothing whatsoever to do with the GRAT trust or with the will. It just happens that those are evidentiary, what went on there, of what likely happened with the catchall trust. So I don't see why those are necessary. I don't see why they're more than evidentiary, and I don't see whether or not those are barred, those particular facts have anything to do with this, as far as jurisdiction is concerned. Now, explain to me why I'm wrong.
04-1544 +++$+++ 20354 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly, Justice Breyer. First of all, Texas has the right to prescribe the elements of its own causes of action, and under Texas law, her cause of action depends upon two critical things, a legitimate expectancy J. Howard intended to do this for her, and the second, tortious conduct of some kind. Her claim -- she tries to meet those two critical elements by showing two things. One, that J. Howard intended to give me this -- this gift in the form of this -- this trust, and that it was tortiously interfered with because the living trust was rendered irrevocable.
04-1544 +++$+++ 20355 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's just one of the things.
04-1544 +++$+++ 20356 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But it's --
04-1544 +++$+++ 20357 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Among other things that went on were they hired private detectives to go after her, to keep her from the bed. I mean, you've read that opinion and there are like about 30 things in there. And I grant you that one of those things is the fact that three pages of the living trust, according to the judge, were created after the event of that trust and slipped in without his knowledge. I mean, it's quite a story.
04-1544 +++$+++ 20358 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course, Your Honor --
04-1544 +++$+++ 20359 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and so I -- but as I read it, there were many, many, many things involved here, and this is just one of them. So how can Texas say that you have to prove this particular one as -- as opposed to proving a lot of others?
04-1544 +++$+++ 20360 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, of course, as an aside, we went to great pains in the Ninth Circuit to demonstrate why all those findings were clearly erroneous and not based on the evidence. But assuming them to be so, which we dispute, again, looking at her claim, that is the critical element of her claim. If, in fact, there -- if, in fact, the living trust was made revocable, then at any point in time, he could have funded, if -- if he had it as revocable until his death, he could have funded her gift that she alleges and she would have no damage claim. It is because of the trust becoming irrevocable that he was prevented from doing it. That is her claim.
04-1544 +++$+++ 20361 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but her claim is assume it's been made irrevocable. I just want some money from this guy.
04-1544 +++$+++ 20362 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-1544 +++$+++ 20363 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's all she's saying, as I understand it. She -- she can -- as I understand her cause of action, it can proceed on the assumption the will is valid, the -- the trust is valid. Just give me the money that I would have had.
04-1544 +++$+++ 20364 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, as a matter of Texas law, she cannot establish a legitimate expectancy. Again, once the probate court -- and the probate court alone has the right to determine the validity of an estate plan. Once the probate court has determined that as a matter of Texas law, all claims about expectancies contrary to those provided in the -- in the plan are foreclosed. That's the Thompson case and the Neill case.
04-1544 +++$+++ 20365 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're arguing a preclusion question, and if the Ninth Circuit thought it had jurisdiction, it could have tested what you say about Texas law. There's no finding in this record of what Texas law is other than what you have just told us, and perhaps you're right and perhaps you're not. But the Ninth Circuit said the Federal door is closed to this probate exception, and that's what we're here to decide.
04-1544 +++$+++ 20366 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, preclusion will also not work. Res judicata and collateral estoppel will also not work because the parties in the Federal proceeding are merely a subset of the parties in the probate court. The probate court's judgment is unique because it has a binding-against-the-world effect. Federal courts cannot pull chunks of the critical issues into the Federal court because doing so creates an inconsistency of judgments potentially. Where the Federal court only has part of the parties before it, the Federal court has all -- the probate court has all the parties before it. The probate court's judgment is binding against the world --
04-1544 +++$+++ 20367 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think it -- it may be that there's another side to that story. For example, I think the bankruptcy court was heard from first. Arguably, that's binding on the Texas court. Whether the bankruptcy court was right or wrong, it would get full faith and credit. That's one argument. Another is perhaps you can explain to me how this all started because I thought that it was a claim made against her in the bankruptcy court for defamation. Then the claim that she asserts is a compulsory counterclaim. She has to make it there or she'll lose it.
04-1544 +++$+++ 20368 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Ginsburg, the claim was not a compulsory counterclaim. The action which was -- that Pierce commenced in the -- in the bankruptcy court was merely to ask the bankruptcy court to decide that if he had a debt against -- if he had a claim against her she owed him money, it would be nondischargeable in bankruptcy. She then used that opportunity to pursue this tortious interference claim against Pierce that she was already pursuing in the probate court. So because there was a prior pending proceeding where she had made the claim --
04-1544 +++$+++ 20369 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I didn't understand the pleading to say if I have a claim, it would be nondischargeable. I thought he made a claim. He made -- filed a claim for defamation in the bankruptcy proceeding.
04-1544 +++$+++ 20370 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, Pierce did not ask the bankruptcy court to decide the claim. He only -- he only asked for the bankruptcy court to decide whether it was nondischargeable or not. But even so -- even so, I think it's important to recognize --
04-1544 +++$+++ 20371 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He would have to say I have a claim because the bankruptcy court is not going to decide a hypothetical if he has a claim. He has to at least assert I have a claim.
04-1544 +++$+++ 20372 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But bankruptcy judges do that, Justice Ginsburg. They decide only the nondischargeability aspect of claims rather than the claims themselves.
04-1544 +++$+++ 20373 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It has to be a real claim. It can't be if I have a claim.
04-1544 +++$+++ 20374 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Ginsburg, because the nondischargeability jurisdiction in bankruptcy is unique. You allow the claim to be determined in a proper court of competent jurisdiction, and then the bankruptcy court decides whether it's nondischargeable or not. That's how it should proceed particularly where, as here, her claim requires, as -- in order for it to -- to be valid, to determine the validity or nonvalidity of J. Howard's estate plan. Now, the United States --
04-1544 +++$+++ 20375 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, I don't -- I don't see how the interference with the probate court that you're articulating is any greater than the interference in Markham. In Markham, it was a decision by a Federal court that these claimants were not going to claim under the will. Why is -- isn't that even greater than the interference you're complaining of?
04-1544 +++$+++ 20376 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Chief Justice Roberts. You can readily divide the Court's precedents into two categories, those where there was impermissible interference and therefore no jurisdiction, and those where there isn't. On the impermissible interference side, you have a case like Federal court cannot determine the validity of an estate plan, Armstrong, Gaines v. Chew. A Federal -- a Federal court cannot determine --
04-1544 +++$+++ 20377 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was it an estate plan or a will?
04-1544 +++$+++ 20378 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In Sutton --
04-1544 +++$+++ 20379 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, you -- you -- you're stretching the probate concept from determining whether the will is valid or invalid and who inherits under the will to also determining what goes into the probate estate, that is, the insurance policies, the trust, and so forth. That to me is -- is something quite different from probating a will.
04-1544 +++$+++ 20380 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, the probate exception protects the integrity of the succession process. If the documents you're looking at deal with the succession of the property, as the living trust and will do in this case, it is encompassed within the probate exception in the Sutton case --
04-1544 +++$+++ 20381 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I don't -- I don't see your -- your logic there. Of course, it protects the succession process, but it does not follow that everything that implicates a succession process falls within the probate exception.
04-1544 +++$+++ 20382 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. Correct, Justice Souter. But here the succession was determined under the living trust, and in Sutton v. English, that's exactly the same scenario. Moses Hubbard left a --
04-1544 +++$+++ 20383 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If -- if there had been a joint bank account, the succession would have been determined based on the validity of the joint bank account, and that certainly wouldn't have fallen within the probate exception.
04-1544 +++$+++ 20384 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the joint -- where you have the equivalent of tenancies in the entirety, I'd say that's a separate issue. Here, however, the living trust performed all the functions of a traditional will, unlike a joint bank account. In the Sutton case, you had both a will and a trust, just like in this case. There, Moses Hubbard left a will and a trust. Mary Jane Hubbard enjoyed the benefits of the trust for her life.
04-1544 +++$+++ 20385 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does -- does Texas law provide that a -- a living trust must be executed and administered with the formalities of a will?
04-1544 +++$+++ 20386 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not quite the same, Justice Souter. Not quite the same.
04-1544 +++$+++ 20387 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then -- then you have to get beyond our probate exception cases to cover the living trust.
04-1544 +++$+++ 20388 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But in Sutton v. English, there was both a will and a trust, exactly the same as here. The plaintiffs were just going after the property. We just want the assets. We're saying we're not touching the trust and the will. This Court held -- this Court held, wait a minute. Only the Texas probate courts may determine whether these instruments are valid or not.
04-1544 +++$+++ 20389 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but she's not -- she's not even going after the assets in this case. She's asserting an in personam claim against the individual. Correct?
04-1544 +++$+++ 20390 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ She is, but that's exactly the same as Broderick's Will, Chief Justice Roberts, an in personam claim against the beneficiaries of the allegedly invalid estate plan to impose a constructive trust on them to get the money. No matter how you dice it or slice it in this case, she is doing an end run around the probate proceeding.
04-1544 +++$+++ 20391 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't think they're going to impose a constructive trust, are they? All -- all they're going to say is pay her the money.
04-1544 +++$+++ 20392 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But why are they going to say pay her the money?
04-1544 +++$+++ 20393 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They're going to say it because they make a finding that through a whole variety of various devices, all of which were listed, that J. Howard, who wanted to give her money through something called the catchall trust was prevented in about 15 ways. And even if you're right that there's a Texas finding that those three pages weren't slipped in, well, how do we know? Maybe it was a valid GRAT trust, but if only they hadn't tried to isolate J. Howard from contact with her, J. Howard would have figured out what had happened before he died and he would have told his lawyers, hey, cut this out. Do what I want. Revoke it. But all that is just hypothetical. I'm just using that to show you why I think this is evidentiary not a matter of what the elements of the crime are -- or the elements of the tort are.
04-1544 +++$+++ 20394 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What's not evidentiary, Justice Breyer, is the fact that in order to prove a legitimate expectancy, she must establish that the validated estate plan is in fact invalid. And under Texas law, that can only be done in the probate court.
04-1544 +++$+++ 20395 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's the cite on that that I -- that I need for --
04-1544 +++$+++ 20396 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in our brief we cite to many, many cases, Your Honor. I would -- I would specifically refer you to --
04-1544 +++$+++ 20397 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're saying you can't bring an inter vivos trust -- an inter vivos -- interference with an inter vivos gift action in Texas unless you show that a will, for example, is invalid.
04-1544 +++$+++ 20398 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor, and those are the Neill v. Yett and the Thompson -- Thompson v. Deloitte cases, which I was reading to before. And the Court said as a matter of law, the final probate court judgment bars any claim that appellees tortiously interfered with any inheritance expectancy because, in light of the final invalid probate court judgment, appellant has --
04-1544 +++$+++ 20399 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that -- but that's res judicata. I mean, that -- that isn't necessarily a -- an application of -- of any probate exception.
04-1544 +++$+++ 20400 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, it is not res judicata for the following reason. Not only may a Federal court not determine the validity or invalidity after the probate court, it may not do so before the probate court has had a chance --
04-1544 +++$+++ 20401 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You say that, but that case doesn't say that.
04-1544 +++$+++ 20402 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That case doesn't say that.
04-1544 +++$+++ 20403 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what case do you have that says that?
04-1544 +++$+++ 20404 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The cases -- there is no specific case where someone has tried to litigate a tortious interference claim in Federal court before the probate court has had -- has had its say. Under Texas law, however, because of the preclusive effect of that determination, Vickie would be able to come to the probate court and say, look, J. Howard intended to give me this. It's a finding of intent. That's preclusive on the probate court. The probate court would be perhaps prohibited from saying, oh, I can't determine under -- that the valid estate plan gives the intent to somebody else.
04-1544 +++$+++ 20405 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the mere fact that you have jurisdiction to say something does not mean that if -- if some other court says the same thing first, you won't be bound by that.
04-1544 +++$+++ 20406 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The problem, though, Justice Scalia, is that the probate court is supposed to make that finding in a judgment good against the world. But all of a sudden, part of the world who has done an end run around the probate proceeding has now gone to some other court for a critical determination of fact that the probate court must decide and always must decide in determining the validity of an estate plan --
04-1544 +++$+++ 20407 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You -- you are suggesting an extraordinary setup with a State court being able to preclude other courts from dealing with related, not identical matters, and that's just not the way our system works. You can bring duplicative proceedings in different courts. One will finish first and that will bind the others. But I -- I never heard of a State court being able to say, because we are a probate court, that you -- you couldn't bring a tort case someplace else.
04-1544 +++$+++ 20408 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg --
04-1544 +++$+++ 20409 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The -- the only court I've heard of that can do that is the Federal bankruptcy court.
04-1544 +++$+++ 20410 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Just as a Federal bankruptcy court is in rem and executes and enters some judgments good against the world with respect to some issues, a probate court does the same thing. You have exactly the same reason why the probate court does it as in the bankruptcy court. Now, this Court has recognized in Tilt v. Kelsey, for example, that the State has a sovereign interest in deciding the scope of its probate procedure that the State may, this Court said in Broderick's Will, provide for the probate court to enter a judgment good against the world, whether the person was a party to the proceeding or not. If a -- if a Federal court can predetermine --
04-1544 +++$+++ 20411 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's the definition of an in rem judgment, but she's suing for an in personam judgment an individual, not an estate, just for a plain old money judgment.
04-1544 +++$+++ 20412 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But in a race to judgment, Your Honor, if the Federal court gets to decide this critical issue of intent before the probate court, it preempts the probate court from doing its core probate function of validating or invalidating an estate plan. That would render our probate system unworkable. That is why --
04-1544 +++$+++ 20413 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Brunstad --
04-1544 +++$+++ 20414 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- this is a jurisdictional doctrine. Yes, Justice Stevens.
04-1544 +++$+++ 20415 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you two questions? First, if there were no such animal as the probate exception, would there have been bankruptcy court jurisdiction over your claim?
04-1544 +++$+++ 20416 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We argue no, Justice Stevens, because as we argued in the Ninth Circuit, there was not even bankruptcy jurisdiction because the other side never responded to our argument that the outcome of this case would not result in any money going to creditors of her estate.
04-1544 +++$+++ 20417 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So your -- you would prevail even if there were no probate exception in your view.
04-1544 +++$+++ 20418 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's our argument. The Ninth Circuit did not address that ground, Your Honor.
04-1544 +++$+++ 20419 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And my -- my second question is I noticed you quoted from a Minnesota Law Review about 250 cases, and the -- your opponent pointed out that the -- the next sentence of the article said the holdings don't support the generalization. And I would just like to ask you, apart from the Markham case, what is the case -- what holding of a case lends the greatest support to your probate exception argument.
04-1544 +++$+++ 20420 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, I think that the Sutton case is the closest. The next closest is Broderick's Will. Sutton again involved both a trust and a will and was a construction of Texas law, which we say the Court has already decided in Sutton, and Texas law, which is undisputed, has the effects which we say it has in the brief. They did not contest, Justice Ginsburg, our construction or interpretation of Texas law. I think also that the Court's decisions in Tarver and Fouvergne and also Ellis and O'Callaghan --
04-1544 +++$+++ 20421 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not asking you to rank them. I don't want a list of cases that have a lot of dicta because some of these cases went off on laches, some went off a lot of different grounds than purely -- than -- some of them don't even mention probate.
04-1544 +++$+++ 20422 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, I think that it's -- it would be helpful if I could give you a thumbnail sketch breaking down, what I was trying to do earlier, between those where there's impermissible interference and those where there's not impermissible interference. The United States' characterization I think is incorrect. For example, again, this Court has determined there's no jurisdiction for a Federal court to determine the validity of an instrument. That's the first case in Armstrong v. Lear and also Gaines v. Chew. Also, this Court has determined there's no Federal jurisdiction to determine the invalidity of an estate plan. That's Tarver, Fouvergne, and O'Callaghan, Broderick's Will, Sutton, and Ellis. This Court has determined that Federal courts do not have jurisdiction to administer the probate estate. That's Byers v. McAuley. This Court has determined that there is no Federal jurisdiction to take possession of the assets in the probate court. That is also Broderick's Will. I'm sorry. That is Byers v. McAuley. This Court has determined one may not impose a constructive trust on the beneficiaries as, in essence, a way to get property to them. That's Broderick's Will and Sutton. This Court has determined there's no jurisdiction to recover property from the beneficiary because of an alleged invalidity of a will. That's -- that's the Ellis case. This Court has determined there's no jurisdiction for the Federal court to direct an accounting from the administrator. That's the Waterman case. This Court has determined there's no jurisdiction to interfere with the State court's possession of the assets, again Waterman, Williams, Yonley, and Borer. Now, no jurisdiction. It's always been a jurisdictional doctrine. And for the same reasons this Court refused to recharacterize the -- the domestic relations exception as a abstention doctrine, the Court should also decline to do so here under the probate exception. Now, the other side of the schema is, when is it permissible for a Federal court to undertake a probate-related matter? Well, if the State allows the claim, particular claim, to be brought outside its exclusive probate system, then Federal courts may entertain jurisdiction as well.
04-1544 +++$+++ 20423 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ By the way, in Texas if you have to go through all this probate stuff and everything, and they want to claim 15 years ago my mother gave a ring to my cousin who stole it, is that precluded to bring that tort action when the person who, you know, was supposed to get it finds out about it?
04-1544 +++$+++ 20424 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, all claims of incomplete gift, which Vickie's claim is here, compete with an estate plan.
04-1544 +++$+++ 20425 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So -- so, in other words, if it -- when the guy is 2 years -- 15 years old, he gives a ring to somebody, and now he dies at age 93, and when they find out about that incomplete gift at age 15, nobody can bring a lawsuit anymore. You have to go to the probate court.
04-1544 +++$+++ 20426 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If in fact the ring passed under his valid estate plan, yes. Because the ring passed under the valid estate plan, you have to overturn the estate plan before you say the property goes somewhere else.
04-1544 +++$+++ 20427 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel.
04-1544 +++$+++ 20428 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Your Honor.
04-1544 +++$+++ 20429 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Richland, you have 4 minutes remaining.
04-1544 +++$+++ 20431 +++$+++ FALSE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. Justice Breyer, to answer your question about whether the Texas court had all of the material before it that was before the bankruptcy court, the answer to that can be seen at page 45 of the appendix where the district court judge says that there were 400 boxes of documents.
04-1544 +++$+++ 20432 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but did those documents -- did those boxes contain the key documents --
04-1544 +++$+++ 20433 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They did.
04-1544 +++$+++ 20434 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- about the catchall trust?
04-1544 +++$+++ 20435 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They did. They contained the -- perhaps the most key documents, which were the billing records that showed that that trust was actually drafted. The trust, of course, never saw the light of day, but those billing records reflected that. And none of that was in front of the Texas probate court. In addition, Justice Breyer, you mentioned that there were a number of other instances of tortious misconduct that were found by Justice Carter, in addition to the forging of the -- of the irrevocability point. Indeed, Justice Carter found that there were massive transfers of J. Howard's assets to Pierce Marshall in his last days, and those asset transfers were made in exchange for notes that were payable years in the future. This was after J. Howard had been diagnosed with terminal cancer, after he had had a heart attack. Annuities were used to pay for those as well. So that he was essentially stripped of all of his assets by the time he was dead. There was -- there were no assets in the probate estate at that time. Justice Ginsburg, I would refer you to appendix page 42 where the -- the district court indicates that both a proof of claim and an adversary complaint were first filed by Pierce Marshall in the bankruptcy court, and that is, indeed, what caused, several months later, the compulsory counterclaim to be filed in a response. Mr. Brunstad indicated that what happened here was that while the claim was pending in Texas, it was then brought to the bankruptcy court presumably because there was some dissatisfaction on Ms. Marshall's part as to how the Texas probate court was going. In fact, page 1 of our reply brief details very specifically the fact that the first time that the tortious interference with gift claim was made was in the bankruptcy court as the compulsory counterclaim. And I would just conclude by stating that the cause of action that was at issue here was really a very common one. It's the -- not in and of itself, but it's common to make a claim against the estate in debt or that a gift was given, and that may, indeed, diminish the estate that is eventually passed. But that doesn't invalidate any of the estate planning documents. It simply means that something that might otherwise have been within the estate was not included in the estate. That's really all that happened here. The claim was for tortious interference with gift. That, indeed, may have diminished the amount or may not have since J. Howard was actually quite an active man at the time that he made this -- this gift or intended to make the gift, and was still doing business deals. He may have increased his -- his assets enormously at that point in time. But in any event, what it certainly does not do is, it does not invalidate an estate plan. It does not invalidate a will, and it certainly didn't invalidate the trust or the will in this case. If there are any further questions, I'd be happy to answer them.
04-1544 +++$+++ 20436 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel.
04-1544 +++$+++ 20437 +++$+++ TRUE +++$+++ MR. RICHLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-1544 +++$+++ 20438 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The case is submitted.
04-1581 +++$+++ 20442 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first today in No. 04-1581, Wisconsin Right to Life, Incorporated v. Federal Election Commission. Mr. Bopp.
04-1581 +++$+++ 20444 +++$+++ FALSE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, and Mr. Chief Justice, and may it please the Court: This case involves the fundamental First Amendment question of whether the Government can shield lawmakers from grassroots lobbying about upcoming votes in Congress through campaign finance laws. This Court has distinguished the regulation of corporate electioneering from efforts to influence lawmaking, finding sufficiently compelling governmental interests in regulating electioneering, but not grassroots lobbying.
04-1581 +++$+++ 20445 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Bopp, right -- right there I guess I -- I have a problem with -- with your argument, and I just want to get it out. I went back and looked at some of the examples that were given at -- in -- in the McConnell case for parallels between what we -- what we thought was covered in those cases and -- and yours -- your case. And the -- the one which I -- I guessed was probably the closest was the -- was the advertisements there in -- in the McConnell case on the -- the lobbying on the Chinese trade relations. The basic message in -- in that case was China uses forced labor. The Congress of the United States is about to make it easier for -- for Chinese goods to get in here and for China to have a respectable trade status. And -- and it said, call Congressman Myrick, I think it was, in any case, a Member of Congress, and -- and say what you think. In this case, you're -- you're talking about a -- a filibuster, and you say, you know, they're filibustering nominees and they're not coming up to -- to a vote. Tell the two Senators in this State, Kohl and Feingold, that -- that you don't like this. The only difference that I could see basically between the two kinds of ads was that in the first one -- in -- in the Myrick ad, they actually gave the number of the -- of the congressional office to call and say, hey, don't do this. In this case, your clients did not give a -- a number. They gave a Web site to an organization. Insofar as I know, it doesn't have a number. Which gets me to the question. If the -- the Chinese trade relations ad was presumably validly subject to the act, I don't see why your client's ad is not, for the same reason, subject to the act and for the further reason that it doesn't even give a phone number to call -- to -- to lobby the people. So it seems to me that on stare decisis grounds, unless we're going to go back and simply reexamine McConnell to -- to -- from -- from scratch, that your clients fall within the general rule as -- as we held it in McConnell. So why doesn't precedent foreclose this?
04-1581 +++$+++ 20446 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there -- there is a few specifics about the -- about our ad that -- that I would like to remind the Court of. First, it was not -- the call to action at the end of the ad was not just call them up and tell them what you think. The call to action was to call the Senators and ask them to oppose the filibuster. So it was specific.
04-1581 +++$+++ 20447 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but you didn't even give their phone numbers.
04-1581 +++$+++ 20448 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, and then it refers to a Web site, befair.org, which contained prominently on the first page the phone numbers and addresses and all contact information for these two Senators. The decision was made by the speaker here that it would be more likely that the recipient of the ad would remember the phrase, befair.org, and seek the information on that Web site than to have a -- you know, a -- a phone number that is just simply more difficult to -- to remember.
04-1581 +++$+++ 20449 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. So if we accept that extra step, that's -- that gets you -- if -- if we accept the extra step that gets you parallel to the -- to the ad that we considered in McConnell.
04-1581 +++$+++ 20450 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it -- it doesn't, the one that you mentioned, because it was just call them up and --
04-1581 +++$+++ 20451 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If -- if it's the fact that you go to the Web site and that's what's supposed to make this what it was in McConnell which, by the way, we said was illegal, what they -- the first thing they're going to see when they get to the Web site, which I agree with you -- four times in 3 of the 12 sentences of this ad -- in 3 of the 12 -- it says, befair.org, visit befair.org, go to befair.org. And the first thing that they're going to see when they get to befair.org is a big headline in bold -- gold -- bold letters which says, Feingold and Kohl continue to support unprecedented filibusters of judicial nominees. So, in fact, if befair.org is brought into the picture, that makes this ad look much more like an effort to -- to defeat Senator Feingold than the ad that we considered in our previous case.
04-1581 +++$+++ 20452 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it --
04-1581 +++$+++ 20453 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Doesn't it?
04-1581 +++$+++ 20454 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. In your previous case, there were certainly genuine issue ads. This Court recognized that it -- that there were genuine issue ads that were not for the purpose of influencing an election. I believe that these ads are at the very core of what a genuine issue ad is. It involves a -- a pending legislative issue, and the only reference to the Senator -- and it was both Senators, not just the one up for election -- was to contact them about -- about how -- whether to support or oppose that specific initiative.
04-1581 +++$+++ 20455 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but in McConnell --
04-1581 +++$+++ 20456 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if you are right --
04-1581 +++$+++ 20457 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in McConnell, the Court said corporations and unions may finance genuine issue ads during election blackout periods by simply avoiding any specific reference to Federal candidates or, in doubtful cases, by paying for the ad from a segregated fund. Now, that language indicates, to me at least, that the Court was saying there are no genuine issue ads meeting the definition as you would have us apply it here.
04-1581 +++$+++ 20458 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that -- that part of the opinion needs to be read in light of the footnote, which is attached to those very words, which said in footnote 88 that the interests that support regulation of electioneering may not apply to genuine grassroots lobbying and distinguished the McConnell case from Bellotti and McIntyre. So we do have to recognize that there's two things going on here. There -- there is an election, but also Congress is in session. The Government is engaging in its lawmaking function.
04-1581 +++$+++ 20459 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Bopp, to what extent can we take into account the surrounding circumstances? One thing that you advocate is to look at this ad in isolation. But if you add to it that your organization made it clear that it opposed the candidacy of Senator Feingold and that it supported his opponents, that your organization also connected, as Justice Breyer just brought out, Senator Feingold with this filibuster, and then if the filibuster was such an important thing for grassroots lobbying, why was it that when the election was over, this ad was not repeated?
04-1581 +++$+++ 20460 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, of course, the final point is -- is in the record, that -- that is, it was -- the -- it was supposed to come to a head in November and then it did not. It was abandoned. But the -- but the point is you cannot -- I don't think that the Government can condition --
04-1581 +++$+++ 20461 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I don't -- I don't understand what you just said.
04-1581 +++$+++ 20462 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well -- well, the -- the filibuster issue, as it related to that session of Congress, it was thought that it was going to come to a head in -- in October -- excuse me -- but it -- but as a -- but it did not. So that is the reason why it was -- it would not have been run after November.
04-1581 +++$+++ 20463 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but I mean, once it didn't come to a head in November and it was still an issue, why didn't you continue to run it?
04-1581 +++$+++ 20464 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, each organization has to make an assessment with respect to the different issues that they want to be lobbying on and the -- their pressing nature. And --
04-1581 +++$+++ 20465 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought your point was that it was not an issue after the election.
04-1581 +++$+++ 20466 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well -- well, it was in the -- in the next session of Congress and has been an -- an issue. But each -- a lobby organization makes a decision about the priorities that they have and whether or not their lobbying efforts will most likely affect legislative action. So --
04-1581 +++$+++ 20467 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Were you taking a position on this issue prior to the election time frame?
04-1581 +++$+++ 20468 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The --
04-1581 +++$+++ 20469 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Had you taken out advertisements prior to that time frame?
04-1581 +++$+++ 20470 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes, and in fact these radio and television ads were continuing up until the blackout period and it was the blackout period that triggered the case.
04-1581 +++$+++ 20471 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the basic question I think is this. All of us -- or almost all of us who are here -- spent an entire summer reading through one of the longest set of opinions I've ever seen from the lower courts and going through a record that they had compiled over months reflecting 6 years of congressional effort. And what that record showed with dozens, hundreds I think, of examples was the basis for Congress' conclusion that there's simply no way to know whether an ad like yours is a genuine issue ad or isn't. And the only way that we have a hope of stopping rich people or corporations or labor unions from simply trying to defeat candidates by writing sham ads is to have the rule that we had. Now, you have a very good argument, but it's an argument that I heard right in that case. And we considered right in that case issues like yours, just ads like yours, ads that were even less sham-like than yours, if you want to call yours a sham -- I don't mean to be pejorative. But we considered all that, and then we used them as an example. And of course, it was close. 5 to 4 this Court said ads that are even more apparently neutral on their face than yours, Congress can impose this requirement. Now, what's different about your ad than the ads we put right in that opinion as examples of what we'd allow Congress to control? What's different now or are you asking us to go back only a year later and undo what we did?
04-1581 +++$+++ 20472 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I'm asking you to give meaning to the holding of this Court that there were genuine issue ads that were broadcast during that period of time. The Government conceded 7 percent, asked you to do a Broadrick analysis upholding the statute on its face, reserving as-applied challenges to genuine issue ads in subsequent cases. That is what this case is about. And the difference here is that as Judge Leon -- the record of the case -- in Judge Leon's opinion, he went for a number of pages explaining what genuine issue ads in his view were, and what -- and he said that if the ad discusses a current legislative issue and refers to the Member of Congress in calling on him or her to take a particular action on that issue, that constitutes a genuine issue ad.
04-1581 +++$+++ 20473 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can we return to --
04-1581 +++$+++ 20474 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ These people are lawmaking.
04-1581 +++$+++ 20475 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Bopp, then can we return to my question? Do we view the ad in isolation, and do we discount the connection by your organization of this Senator with the filibuster that you said was a very bad thing?
04-1581 +++$+++ 20476 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I'm sorry. I was interrupted. I wasn't able to get to that question. And the -- the Government cannot condition the exercise of one right on exercising another. There's a First Amendment right for the PAC of Wisconsin Right to Life to support or oppose candidates. That's different than what its lobby group does. Its lobby group is primarily involved in influencing current lawmaking. And so that is why, in the First Amendment, petition is separately listed.
04-1581 +++$+++ 20477 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the electorate will know that this issue is presented to them in connection with this Senator and that your organization has linked the two very clearly.
04-1581 +++$+++ 20478 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, you know, the -- the effect on an election is remote and speculative and not proven by -- in terms of genuine issue ads in this record. But these people are lawmaking now. So there's a pressing need and, indeed, right for people today to influence the Government's lawmaking regardless of the incidental, remote, speculative, and unproven effect that that genuine issue ad may have on an election. There -- there is simply -- we just cannot get away from the fact that the most important thing that Government does is lawmaking, and because they've scheduled an election should not immunize the incumbents from being lobbied about that very law-making function that they're engaged in today.
04-1581 +++$+++ 20479 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then why didn't we have to go the other way in the Chinese trade relation example? I mean, everything --
04-1581 +++$+++ 20480 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think you --
04-1581 +++$+++ 20481 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- unless I'm missing something in your argument, everything you are saying in this argument could have been said with respect to that ad and, as Justice Breyer said, to a couple of others.
04-1581 +++$+++ 20482 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well that may very well have been a genuine issue ad in the mind of this Court. You only cited one ad, which was on page 193, which was the Yellowtail ad, as an example of sham issue advertising.
04-1581 +++$+++ 20483 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1581 +++$+++ 20484 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And there, you know --
04-1581 +++$+++ 20485 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and we -- we cited some other examples as -- as examples that, on the face of it and on the face of the record, would -- would lawfully fall within the -- the general rule that we said Congress could prescribe.
04-1581 +++$+++ 20486 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well -- well, the Yellowtail ad, which you cited and quoted as a example of sham issue ad, said that the -- Mr. Yellowtail had taken a swing at his wife and he justified that because he said he didn't hit her.
04-1581 +++$+++ 20487 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but the point --
04-1581 +++$+++ 20488 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And then it said basically call him up and yell at him.
04-1581 +++$+++ 20489 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I -- I don't want to cut you off from your Yellowtail argument, if -- if you want to make it, but it seems to me that the problem in this case is that your ad is very much like a non- Yellowtail ad. And the problem that we would have in accepting your argument is, number one, a problem of precedent and, number two, the problem that Justice Breyer raised that, again, we had dealt with in the prior case.
04-1581 +++$+++ 20490 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ How could it be --
04-1581 +++$+++ 20491 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, no. Let me just finish my question.
04-1581 +++$+++ 20492 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sorry.
04-1581 +++$+++ 20493 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Once you get out of the sphere of -- of kind of sham ads that just hit you in your face, there isn't a practical way to tell the difference. There isn't a kind of magic formula. We rejected the magic word, or Congress rejected the magic word's approach. And therefore, Congress came up with a rule that it did within certain time limits, identified candidates, identified audiences. You can't do it within this period of time unless you do it through a PAC. What is different in your case from those paradigm examples in -- in McConnell?
04-1581 +++$+++ 20494 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, as I was describing, the Yellowtail ad was --
04-1581 +++$+++ 20495 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But Yellowtail --
04-1581 +++$+++ 20496 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- which involves very --
04-1581 +++$+++ 20497 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- is -- is an ad of -- an obviously sham ad. The problem that we're dealing with --
04-1581 +++$+++ 20498 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Bopp, did -- did the opinion refer to --
04-1581 +++$+++ 20499 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May -- may I finish?
04-1581 +++$+++ 20500 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- sham ads?
04-1581 +++$+++ 20501 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Excuse me. May I -- may I finish my question?
04-1581 +++$+++ 20502 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did the opinion refer to --
04-1581 +++$+++ 20503 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Justice Souter.
04-1581 +++$+++ 20504 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I finish my question? The -- the -- no one is saying that your ad in this case is an obviously sham ad like Yellowtail. Your ad in this case is one of those ads that it's difficult to deal with fairly. You can say, well, you know, it's an electioneering ad and you can say it's -- it's a lobbying ad. And -- and Congress decided how to deal with them. We said that's okay. Why doesn't --
04-1581 +++$+++ 20505 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Only on a facial challenge.
04-1581 +++$+++ 20506 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but why doesn't your ad fall within the reasoning that we used in approving -- on the facial challenge, in approving the statute?
04-1581 +++$+++ 20507 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the Broadrick facial challenge analysis that you engaged in in McConnell is not completed because that includes future as-applied challenges. The Government argues that there were --
04-1581 +++$+++ 20508 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No -- no question about it.
04-1581 +++$+++ 20509 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- 7 percent --
04-1581 +++$+++ 20510 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But your -- your as-applied --
04-1581 +++$+++ 20511 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- genuine issue ads --
04-1581 +++$+++ 20512 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- challenge has got to have something different about it, something unusual that says this is why my ad does not fall within the general rule. And that's what I'm trying to get at.
04-1581 +++$+++ 20513 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I will repeat. The -- it involves a currently pending legislative issue. It does not talk --
04-1581 +++$+++ 20514 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wasn't the Chinese trade issue currently pending?
04-1581 +++$+++ 20515 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it was, and you know, the Chinese --
04-1581 +++$+++ 20516 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that's no difference.
04-1581 +++$+++ 20517 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But -- but, Your Honor, the Chinese example was not cited by this Court. It was in the record. And it may be a -- a genuine issue ad.
04-1581 +++$+++ 20518 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Sure.
04-1581 +++$+++ 20519 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay? And -- and the Government argued there were 7 percent genuine issue ads really trying to exercise the constitutional right to petition Government, because Government is regulating us right now in terms of their votes and their actions. And, of course, that's why in the First Amendment, it doesn't just say speech and -- and association and press. It -- it says --
04-1581 +++$+++ 20520 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I --
04-1581 +++$+++ 20521 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- petition the Government.
04-1581 +++$+++ 20522 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- may I ask one question just to find out? Are you contending that there is a sharp distinction? There's a category of issue ads and a category of election ads that are mutually exclusive?
04-1581 +++$+++ 20523 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think you can create objective criteria, just like this Court has --
04-1581 +++$+++ 20524 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. If you can answer my question yes or no. Are -- are you arguing there are two mutually exclusive categories, or are there ads that fit somewhat in both?
04-1581 +++$+++ 20525 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I think that you can adopt objective criteria as you have in the Noerr v. Pennington doctrine to separate the two.
04-1581 +++$+++ 20526 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you able to answer my question yes or no?
04-1581 +++$+++ 20527 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I would say no.
04-1581 +++$+++ 20528 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're not claiming there are separate categories.
04-1581 +++$+++ 20529 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Then I misunderstood your question, Your Honor. I am saying that they are separate categories. This Court --
04-1581 +++$+++ 20530 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it's either -- it's either an issue ad or it's a candidate ad.
04-1581 +++$+++ 20531 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. And I'm not saying at the -- at the margins there -- there may not be doubtful cases, but what I'm saying is that this Court in Noerr v. Pennington doctrine has recognized and adopted objective criteria to distinguish between genuine efforts to influence the Government, which is not subject to the Sherman Act, and sham issues -- efforts to regulate --
04-1581 +++$+++ 20532 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does the -- does the FEC draw -- distinguish between sham ads and genuine issue ads?
04-1581 +++$+++ 20533 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, the -- no, they haven't. But right before the 2004 election -- excuse me -- they gave an exception to an auto dealership that wanted to continue to run the name of the owner of the dealership, despite the fact that he was a Senator -- a candidate for United States Senate, during the blackout period. And the commercial interests at stake there were sufficient for the FEC to grant an as-applied exception even though there may have been some incidental effect on the election. So the FEC has recognized that there is interests which are sufficient and -- and also that the -- the possible impact on an election is so remote that -- that the interests are -- are sufficient.
04-1581 +++$+++ 20534 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. So what is the test? Because I -- my vague recollection from a year and a half ago is that there was in that testimony political consultants who said if you really want to defeat a Senator, here's how you do it.
04-1581 +++$+++ 20535 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1581 +++$+++ 20536 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Run an ad that just speaks about a group of Senators. It's plain that they're bad, and then put in some words that mention his name and everybody will get the point. They said that's even better than saying, vote against. And then our opinion said there is little difference between an ad that urges voters to vote against Jane Doe and one that condemns Jane Doe's record on a particular issue while exhorting viewers to call Jane Doe and tell her what you think. That was the opinion. So, now, what's your test to decide whether that's what's going on or whether this is a genuine issue ad?
04-1581 +++$+++ 20537 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that you would look at, one, whether the -- the ad discusses a current legislative issue; two, whether or not it made any reference to the legislator beyond lobbying him or her about that specific issue. So there should not be any references to the election or the candidacy of the incumbent or any of those type references. And if you had that, you would have a bona fide, genuine effort to lobby. They are voting. They're taxing us. They're regulating us. And as we know, the record reflects that usually most of the -- of these issues are decided in the context of this blackout period at the end of -- end of Congress. So I know it is difficult to balance these interests, but there is more interest among the people than simply the remote and speculative effort to influence an election. There is an immediate need to influence how Government is regulating and taxing us. So that is the interest that is presented here. That is the interest that the Court in McConnell recognized when the Court said there are genuine issue ads and -- and only engage in what the Government urged was a Broadrick facial challenge analysis. The Government said in McConnell, well, any of these genuine issue ads can be dealt with in an as-applied challenge. Now, they have switched sides here, having asked the Court and the Court engaging in a Broadrick facial challenge analysis -- are now saying that even though Broadrick would allow as-applied, that you are not to entertain any as-applied. I just don't see --
04-1581 +++$+++ 20538 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, this ad could have been run by your clients by a segregated fund.
04-1581 +++$+++ 20539 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes, that is true. And -- and, of course, as -- as this Court has recognized --
04-1581 +++$+++ 20540 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It just ran out of money. Is that the deal?
04-1581 +++$+++ 20541 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that was only part of it. They -- they didn't raise money with the anticipation of doing their lobbying with it. In other words, they raised all their lobbying money in their -- in their general treasury. The -- the only funds they raised in their PAC is to advocate the election or defeat of candidates or give money to candidates, which -- which this Court has recognized is a proper way of directly affecting an elections. But making lobbying into a PAC means that, number one, you're going to have to identify that effort to influence a vote -- about an upcoming vote in Congress, you're going to have to identify that as a political activity.
04-1581 +++$+++ 20542 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. If you can do this, can a labor union do it?
04-1581 +++$+++ 20543 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1581 +++$+++ 20544 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And a corporation?
04-1581 +++$+++ 20545 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Of course, the prohibition we're attacking is against corporations --
04-1581 +++$+++ 20546 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Well, then -- then we're back to -- I mean, I've heard this. This is very familiar music to me and I think you raise a tough issue. I just thought we perhaps had decided it. But the -- the reason that this was so tough was then these very, very wealthy individuals -- and since I once read through the list, I know who they are. And they -- they say, I'm going to give $15 million. You know, I'm going to give $15 million. So they hire this genius political consultant that's there in the record. And what happens is ads that look an awful like this, and this consultant says, hey, we have $15 million to pay for it from this one person. And they run them all over the country. And Senator after Senator is boom, boom, boom, boom.
04-1581 +++$+++ 20547 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but --
04-1581 +++$+++ 20548 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It becomes a question of motive and how do we know what the motive is?
04-1581 +++$+++ 20549 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's not what advocacy groups are doing. You know, people who want -- the wealthy people you're talking about have gone into giving money to 527 unincorporated groups that -- that are using issue ads lawfully through that vehicle. But, you know, before this all happened, the 1996 and the record of McConnell where, all of a sudden, there were more of these issue ads, the record also reflects that there had been issue ads, you know, throughout history. And -- and, of course, those were all these efforts to influence the upcoming votes in Congress. So that occurred before this effort with sham issue ads. It -- it would occur now except that genuine issue advocacy through grassroots lobbying is now swept in under the reason that it might have an incidental effect on elections. This Court just simply needs to recognize that there's more to Government than elections, and even more importantly than elections is the lawmaking function and that -- that people should not be disabled from using most effective means to influence that law-making with -- on the basis that simply there's an election coming up. I'd like to reserve the balance of my time.
04-1581 +++$+++ 20550 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Bopp. General Clement, we'll hear now from you.
04-1581 +++$+++ 20552 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: In McConnell against FEC, this Court upheld title II's definition and regulation of electioneering communications by corporations and unions as defined in the act.
04-1581 +++$+++ 20553 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In McConnell against FEC, you stood there and told us that this was a facial challenge and that as-applied challenges could be brought in the future. This is an as-applied challenge and now you're telling us that it's already been decided. It's a classic bait and switch.
04-1581 +++$+++ 20554 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. In -- in fairness, Mr. Chief Justice, in the McConnell case at pages 105 and 106 of our brief, we said that as-applied challenges would arguably be available. But the principal argument we stressed in the brief and in oral argument was that, in a sense, overbreadth analysis here and even as-applied challenges, though we didn't put it in those terms, are a little bit beside the point because of the nature of the regulatory structure here.
04-1581 +++$+++ 20555 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there any other case that you can cite where we've upheld a facial challenge and then later said that an as-applied challenge was barred by our ruling on the facial challenge?
04-1581 +++$+++ 20556 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Mr. Chief Justice, I will answer it, and I -- and I think actually --
04-1581 +++$+++ 20557 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Like Justice Stevens, I think that's a yes or no. (Laughter.)
04-1581 +++$+++ 20558 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. Yes. Yes.
04-1581 +++$+++ 20559 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What --
04-1581 +++$+++ 20560 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Lane and Hibbs. I can't imagine after those two decisions which upheld in facial challenges the statutes at issue there and said that there was not too much prophylaxis for purposes of section 5 of the Fourteenth Amendment --
04-1581 +++$+++ 20561 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I beg your pardon. I didn't hear the names of the cases.
04-1581 +++$+++ 20562 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Lane and Hibbs. Tennessee against Lane and Nevada against Hibbs. I can't imagine after those decisions that somebody --
04-1581 +++$+++ 20563 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's a very different question. That's interpreting the scope of Congress's power under section 5 of the Fourteenth Amendment. The issue is whether it's limited to the constitutional violations or sweeps more broadly. If you conclude that it sweeps more broadly, it's not suggesting that an as-applied challenge can be brought by someone who's covered by the broader sweep. That's a very different question. Is there any First Amendment case where we've said this is facially valid and then said as-applied challenges can't be brought?
04-1581 +++$+++ 20564 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think this Court has --
04-1581 +++$+++ 20565 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it would be like in any of those cases where you have a -- a broad prohibition and you say, yes, there may be situations where it's unconstitutional, but the statute is valid on its face. And then someone comes in and says, well, my situation is one where it's unconstitutional. We've never said, well, it's too bad because it's valid on its face, have we?
04-1581 +++$+++ 20566 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the case really hasn't arisen because generally when this Court clearly identifies an area where Congress can regulate in prophylactic terms, somebody doesn't come back in and try to bring the exact same challenge. And if I could give you two examples. If somebody after Burson against Freeman, which you may remember is the case where this Court upheld a 100-foot buffer zone around a polling place -- if somebody came in after that decision and said, well, that can't apply to me in an as-applied challenge because I only want to stand 90 feet away, I think they would have gotten laughed out of Court because this Court already said that a 100-foot buffer zone was sufficient. I think in a similar way --
04-1581 +++$+++ 20567 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it might have been that 90 feet included a public street and you couldn't go down a public street without -- so -- and so --
04-1581 +++$+++ 20568 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Kennedy --
04-1581 +++$+++ 20569 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It -- it does seems strange to me in a speech case to say we're foreclosing as-applied challenges.
04-1581 +++$+++ 20570 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and, Justice Kennedy, please understand me. I don't mean to suggest that McConnell somehow magically jurisdictionally foreclosed as-applied challenges. And I suppose if somebody could come in after Burson and give a good reason why their situation is very different, that there's a super highway 90 feet away or that all they were talking about is a bumper sticker on a car, well, then maybe that --
04-1581 +++$+++ 20571 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I suppose you can say, yes, you can have an as-applied challenge, but this one doesn't meet the test.
04-1581 +++$+++ 20572 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly, Justice O'Connor. And again, it's not because it's foreclosed. It's because the reasoning of this Court in McConnell forecloses the decision.
04-1581 +++$+++ 20573 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So let's say you had an organization that every month of every year it took out an ad the first week of every month, and it said the same thing and it said, contact your Senators. This issue is important to us. And they do that every month. All of a sudden, their ad's nature changes because an election is -- happens to be coming up and it's illegal the month before the election, even though it was clearly something that they did without regard to the election.
04-1581 +++$+++ 20574 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, that would be a better as-applied challenge. I still think that with respect to the ads in the 30 days before the primary and the 60 days before the -- the general election, that corporation could look at this Court's decision in McConnell and say, oh, I understand. Our remedy is not an as as-applied challenge. Our remedy --
04-1581 +++$+++ 20575 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If we want to place an ad in October, the solution is to place an ad November through September, and then we're okay. And the only reason we're going to do it November through September is so we can do it in October?
04-1581 +++$+++ 20576 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no.
04-1581 +++$+++ 20577 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's a pretty broad definition of a sham.
04-1581 +++$+++ 20578 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no. The point would be in October either -- do exactly what this Court said at page 206 of the McConnell opinion: either make the ad in terms that doesn't expressly refer to the candidate which, if you're not interested in influencing the candidate election, shouldn't be a problem, or fund that one advertisement through a separate, segregated fund.
04-1581 +++$+++ 20579 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But on an issue like this, the filibuster, it's the Senators who are doing it, and their ad referred to not only the Senator who was up for election, but the one who was not.
04-1581 +++$+++ 20580 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand that, Mr. Chief Justice, but I think if you focus in on this particular ad, you will see that whatever the true intent of the advertisers here, this is the kind of ad that clearly would have an impact on the election. I mean, it talks about the -- the filibusters in colorful terms, associates them with gridlock and with a state of emergency, and then associates it with a candidate.
04-1581 +++$+++ 20581 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You think Congress has the power to prohibit any First Amendment contact -- conduct that might have an impact on the election? I mean, is that the criterion for whether it -- it can be prohibited?
04-1581 +++$+++ 20582 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Scalia, it's not. But I think what this Court very clearly did in McConnell is it rejected an argument that said that the only thing that Congress could regulate is that which was unambiguously targeted at candidate elections.
04-1581 +++$+++ 20583 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you think there is a compelling interest in preventing people from thinking about an issue and then calling their Senator during the blackout period. That's the compelling interest that, in effect, you are arguing for.
04-1581 +++$+++ 20584 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Kennedy. What we're arguing for stems from the observation that this Court made in McConnell, which is that when you get up between 60 days before an election and you look at the ads that are run, most of the ads, in fact, are designed to influence candidate elections. It's very difficult to figure out exactly which ones, and there are very serious problems with adopting a very vague intent standard.
04-1581 +++$+++ 20585 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are -- are Web sites and chat rooms covered by the McCain-Feingold?
04-1581 +++$+++ 20586 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, they're not, Justice Kennedy. The Internet is not covered.
04-1581 +++$+++ 20587 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But certainly under your view, they ought to be. If you funded a Web site which was very popular or a chat room, I certainly think it should come within your proscription so that we can't talk about issues during an election.
04-1581 +++$+++ 20588 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Kennedy. I think the fact that there are alternative methods available to communicate these ideas in these ads is a virtue, not a defect with this regulatory structure. And I would like to focus in on these ads because while it is true that --
04-1581 +++$+++ 20589 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why -- why not? Suppose -- suppose most people look at the Web site and they don't listen to the -- listen to the radio. I think certainly McCain-Feingold should be extended to that under your view.
04-1581 +++$+++ 20590 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Kennedy, I -- I'm not sure you really do think that -- that McCain-Feingold should be extended to that. (Laughter.)
04-1581 +++$+++ 20591 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I do think that this is an area where this Court, in fairness, has recognized that -- that any effort to regulate in this area effectively has to avoid three pitfalls. And it's a very difficult task for Congress. It has to avoid being vague. It has to avoid being overbroad. And as your question suggests, it also has to avoid being so under-inclusive and easy to evade that it can simply be circumvented in a way that Congress can't achieve its purpose.
04-1581 +++$+++ 20592 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is the difference with this? I mean, in my mind are possible as-applied challenges. Bread for the City. Never supported the candidate, worried about the hurricane in Louisiana. Vote for relief for New Orleans. Write your Senator, Senator X. Organization two. Never supported a candidate one way or the other, but has an issue they're always interested in, and they run ads cycle after cycle after cycle and they don't want to pull them just because October has come along. All right? Now, think of those organizations where I think maybe, sure, maybe they'd win their as-applied challenge. And here, you're not arguing it -- he doesn't have a right to bring it. You're arguing, of course, he can bring an as-applied challenge. He's just going to lose given our rationale. All right? Why?
04-1581 +++$+++ 20593 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I want to be responsive and I think the way to respond is that this Court's decision recognized that these ads were going to be difficult to classify and that you needed some kind of bright line rule and that the consequences of having a bright line rule in this consequence -- in this area weren't terrible because there were alternative ways for them to communicate either through a separate, segregated fund which served the interests of the statute or by avoiding the kind of references that would raise serious questions about tying the ad to a candidate election. And I think if you look at -- if -- if you want to keep the possibility open of some as-applied challenge and you focus on these ads, these are ads that clearly, I think, would implicate the concerns of Congress.
04-1581 +++$+++ 20594 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What was the bright line rule that -- that you think the -- the opinion established? I thought the bright line rule was whether it's an issue ad or -- or, rather, a phony issue ad. I thought that was the -- the line that -- that the opinion was trying to -- to draw. You -- you say that the opinion drew the line between what? All issue ads are out?
04-1581 +++$+++ 20595 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think all issue ads that come within the statutory prohibition are permissibly regulable. I think --
04-1581 +++$+++ 20596 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No issue ads during the -- the blackout.
04-1581 +++$+++ 20597 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure, you can run issue ads as long as you either fund them through a separate, segregated fund or you --
04-1581 +++$+++ 20598 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No --
04-1581 +++$+++ 20599 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- omit the reference to the candidate.
04-1581 +++$+++ 20600 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, of course, I know.
04-1581 +++$+++ 20601 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and --
04-1581 +++$+++ 20602 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And stand on your head. But the -- (Laughter.)
04-1581 +++$+++ 20603 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Within -- within the framework of the statute, you think the clear line that is established by the opinion is no issue ads without this special funding during the blackout. You think that's what the opinion says?
04-1581 +++$+++ 20604 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that this -- I do think that is what the opinion says and stands for. And I think this Court recognized --
04-1581 +++$+++ 20605 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why does it speak about sham issue ads?
04-1581 +++$+++ 20606 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Scalia, for one thing, I think it's important to recognize that the discussion about sham versus genuine issue ads was really a factor of the fact that necessarily in looking at the record there, what the Court had to do is look at ads that were run in previous election cycles where this regulatory structure wasn't in place and try to classify those ads. And as I understand it, sort of genuine versus sham was a way of capturing whether or not it was an ad that seemed primarily focused on an issue or primarily focused on a candidate election.
04-1581 +++$+++ 20607 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why did you say there were 7 percent of these that -- that are probably okay?
04-1581 +++$+++ 20608 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure which figure Mr. Bopp is referring to as the 7 percent figure. I don't -- I don't remember conceding that 7 percent of the ads were okay. And I think what we very clearly said -- and if you go back and look at our briefs, as I did, I think you'll see this. What we very clearly said -- and the Court picked up on it in that line on page 206 that Justice O'Connor read earlier -- is that whatever was true about a retrospective analysis of ads that were run in an election cycle that wasn't governed by the statute, that in the future corporations could avoid the -- the strictures of the statute by simply doing one of two things: either avoiding making an express reference to the candidate, which ought not to be too difficult if you're really just engaged in issue advocacy, not trying to influence a candidate election, or alternatively, you can fund it through the separate, segregated fund.
04-1581 +++$+++ 20609 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I deny the first thing, that it's easy to do issue ads without naming the candidate. The -- the point of an issue ad is to put pressure on -- on the candidate that you want to vote your way. Without -- without telling people to call -- not the candidate -- the -- the incumbent that you want to vote your way -- without telling people to call the office of that incumbent, you're not doing very much.
04-1581 +++$+++ 20610 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Scalia, they didn't even do that in this ad, as has already been pointed out. And if they would have said find out what you can do to stop judicial filibusters, visit befair.org, and avoided a reference to Senator Feingold, they could have run this through their general treasury funds. But they couldn't resist the temptation to mention Senator Feingold in this context --
04-1581 +++$+++ 20611 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could they have said in the ad, call your elected representatives, not naming any names?
04-1581 +++$+++ 20612 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice O'Connor, they also could have done that. And I think that the very fact that they couldn't resist the temptation to link the filibuster issue to Senator Feingold is not that surprising --
04-1581 +++$+++ 20613 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ General --
04-1581 +++$+++ 20614 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That may be because the people who were doing the filibuster were the Senators. It's not -- it's not a surprising thing to link the Senators to that issue.
04-1581 +++$+++ 20615 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, and again, Mr. Chief Justice, though, I mean, fair enough, but I think you also have to keep in mind that this is a context where this filibuster issue isn't some idiosyncratic interest of the appellant here. This is an issue that was identified as a campaign issue by the -- by -- by the candidates opposing Senator Feingold, by the Wisconsin Republican Party, and by appellant's own PAC. And to the extent you're trying to figure out whether this was really designed to influence the pending legislative votes or the election, the timing of this ad strongly suggests it was designed to influence the election.
04-1581 +++$+++ 20616 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The fact that it mentions both -- the fact that it mentions both Senators strongly suggests to me that it's concerned about the issue because one of the Senators wasn't up for election.
04-1581 +++$+++ 20617 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Mr. Chief Justice, that gets back to Justice Stevens' question as to whether or not these categories are mutually exclusive. I'm not here to tell you that appellants weren't genuinely issued about -- genuinely interested about the filibuster issue. I think they were also, as their political action committee press release shows, genuinely interested in sending Senator Feingold packing. And they had an opportunity to run this ad and effectively get a twofer by naming Senator Feingold. Now, they could have resisted that and only gotten the influence on the -- the filibuster issue, if they had taken the --
04-1581 +++$+++ 20618 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And they -- and they could have -- they could have named Senator Kohl, I take it.
04-1581 +++$+++ 20619 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They -- they could have, Senator Kennedy.
04-1581 +++$+++ 20620 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's such an odd calculus. Who is the person more likely to be influenced with an issue ad? The person who's running or the person who's not going to run for 4 years? Obviously, the former.
04-1581 +++$+++ 20621 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Obviously --
04-1581 +++$+++ 20622 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that's -- and that's the one area where the ad is prohibited.
04-1581 +++$+++ 20623 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Obviously, you're right, Justice Kennedy, but obviously, there are concerns that are implicated when somebody is running in cycle and the ad has targeted the electorate in the immediate run-up to the election that aren't present there with Senator Kohl and, therefore, the Congress has -- has struck a different balance in that case. But just to focus on the timing of these ads, they were run on day 4 of a 45-day August recess of the Senate. Now, that timing, if what you were trying to do, is to influence a pending legislative vote, is very, very odd timing. It could hardly be worse. If, on the other hand, you're trying to influence the upcoming election, the timing of that ad makes a great deal of sense.
04-1581 +++$+++ 20624 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if you're trying to influence the Senators who are presumably or possibly in their home State during a recess, that's perfect timing to influence the Senators who are the ones engaging in the filibuster --
04-1581 +++$+++ 20625 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure I would --
04-1581 +++$+++ 20626 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- without regard to whether they're running for election or not.
04-1581 +++$+++ 20627 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect, Mr. Chief Justice, I'm not sure I'd pick day 4 of the August recess to do that. Maybe 14 days before they're going back, something like that, would be an appropriate time to catch their attention in a -- in a period where they're going to remember it when they go and vote. But I think day 4 of a 45-day recess is probably not when I would pick to start running these ads. I don't suggest, though, the timing factor or any other one factor ought to be dispositive. I think what it goes to show is how difficult it would be to try to get into a fact-intensive as-applied analysis of these various issues. And all of that presumably would have to be done in the context of TRO hearings and preliminary injunction hearings on the eve of elections.
04-1581 +++$+++ 20628 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I've lost track of it. Your -- your answer to Justice Breyer's hypothetical about Bread for the City and the hurricane and all that is that that would be an illegal ad?
04-1581 +++$+++ 20629 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, no, I think my answer to that would be that we'd still be here suggesting that that's controlled. I think my answer was also that that would be a far better as-applied challenge than the one that this Court has before it. And I think, you know, in -- in one sense we make this point in the brief. I mean, contrasting this case with a case like MCFL I think is quite instructive. There, you're not focused on the content or intent of specific ads. You look at the organization as a whole and come up with fairly bright lines. And once you've made a determination about the organization in an as-applied challenge, you're done with the issue. Here, the kind of --
04-1581 +++$+++ 20630 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you do -- you do an ideological history, an ideological pedigree of various speakers. You think that's consistent with the First Amendment? That -- that was the ACLU's suggestion which, it seems to me, shows you how far we've gone down this road.
04-1581 +++$+++ 20631 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I mean, that may speak about where the ACLU is going. I don't think it speaks about where this Court is going because this Court hasn't adopted that test. The test that this Court adopted in MCFL would -- did not get into that kind of inquiry. What it did is it focused on three relatively bright line factors about whether you accept corporate money, whether you have other sources of income from the corporation, and whether or not you were formed expressly for political views but without any sort of censorship or inquiry into what kind of political views. And that I think this Court has found administrable.
04-1581 +++$+++ 20632 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But --
04-1581 +++$+++ 20633 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The FEC administers that. That's --
04-1581 +++$+++ 20634 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's what I want to know exactly. I didn't think -- I thought Congress considered this impossible question. I thought that 7 percent figure was from a study, in fact, dozens of studies, where these people who were experts, quote, decided that about 7 percent of the ads like this one distinguishing between really interested in issues or interested in issues but, in significant part, defeating the Senator. In the latter, of course, it's campaign and it's part of the regulation of campaign funds. But they didn't think we could do it. They thought first they could do it, and then they told the FEC to go and produce a set of regs that would, in fact, try to screen out that legitimate 7 percent. Am I wrong about how the statute was supposed to work?
04-1581 +++$+++ 20635 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, you're not wrong, Justice Breyer. And I would say that the --
04-1581 +++$+++ 20636 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why haven't they done it? And I had thought also that they were supposed to control 527's by having regs or individual cases that would decide whether there was a mix of personnel between the campaign and the 527, whether they talked to people and planned their strategy. Have there been those regs written?
04-1581 +++$+++ 20637 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Breyer, let me answer both questions. As to the 527 issue, as I understand it, the commission has decided to proceed on case-by-case inquiries and has not tried to have a broad regulatory approach yet. Now, on to the issue of electioneering communications, you're absolutely right that there is a statutory authorization to create exceptions. But the regulatory authority of the commission is limited, and it's limited in the sense that they can't approve an exception that would allow for ads that engage -- that -- that fairly read, engage in promoting, attacking, supporting, or opposing a candidate. And what the FEC has found in practice is that it's very difficult to create that kind of regulatory exception because, as this Court recognized in Buckley and in McConnell, one does not want to naively underestimate the creativity of corporate spenders or political consultants. And if you create a bright line and say, all right, if you do this, that's grassroots lobbying, that's not electioneering communication, they're going to be able to drive a truck through that kind of exception --
04-1581 +++$+++ 20638 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ General --
04-1581 +++$+++ 20639 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- unless you're exceedingly careful.
04-1581 +++$+++ 20640 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ General Clement, if you could clarify for me some -- a response that Mr. Bopp gave. Did this ad run, was it broadcast or televised before the blackout period?
04-1581 +++$+++ 20641 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Ginsburg, as I understand the record, the first effort to broadcast this ad was on, I think, July 26th, and that was sort of a few days before the -- the cutoff period would kick in. So there was an effort by a matter of weeks to broadcast this ad. But I think, you know, whether one views that as setting the stage for this litigation or being kind of an independent decision, I'll -- I'll leave to others. What I think is important, though, is that although they were engaged on this issue before then, up until that point, they had found it perfectly satisfactory to engage on the issue without engaging in broadcast advertisement.
04-1581 +++$+++ 20642 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you one other thing about the setting? When you went to the Web site to get further information, what was conveyed about Senator Feingold when you went to get that further information?
04-1581 +++$+++ 20643 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Ginsburg, I -- I don't have as good an answer for that as I would like because the -- the Web site is now defunct. And so maybe Mr. Bopp can answer that in rebuttal. As I understand it, consistent with what Justice Breyer said, that there was sort of additional arguments about the Feingold record on -- on filibusters and Senator Kohl's record on filibusters, and then there was -- there was information about how to contact them. But I think, again, as -- as Mr. Bopp has said, if -- if you don't find the broadcast medium a particularly effective way to convey the phone numbers and you have to reference people to the Web site anyways, the very fact that you could reference them to the Web sites without naming the candidates' names and avoid the strictures entirely seems like the kind of thing that this Court had in mind when it said on page 206 that there were ways to deal with this problem prospectively and that you didn't need a as-applied challenge like this one. And again, I think you can't overestimate the difficulties here because --
04-1581 +++$+++ 20644 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ General Clement, you -- you've pointed out the difficulties, but I don't know any other area where we said, well, you know, the -- the -- when you're dealing with important -- important freedoms, important guarantees, where we shrug our shoulders and say, well, the only way to accomplish what the Government wants to do is to ride right -- right over those guarantees. I mean, we say, we -- we cannot bust up this -- this drug conspiracy unless we use warrantless searches. So, you know, whatever it takes. We don't -- we don't operate that way. And here, you're -- you're dealing with a very fundamental guarantee --
04-1581 +++$+++ 20645 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia --
04-1581 +++$+++ 20646 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the -- the right which I think applies to corporations, as well as to anybody else, and for individuals to associate with one another to bring to bear influence on the legislative process. That's a fundamental guarantee. And it doesn't satisfy me to say, well, there's no other way to stop people from criticizing incumbents during -- during the election blackout period. Maybe you can't do entirely what you want to do.
04-1581 +++$+++ 20647 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I hope that's not the case, Justice Scalia. Let me give you two other First Amendment examples: the first admittedly involving intermediate scrutiny; the second, a strict scrutiny case. The first thing I have in mind is the contribution limits themselves. This Court has fully admitted that it doesn't have a scalpel to probe the difference between $2,000, $1,000, $4,000 as a contribution limit. And it's perfectly willing to admit in its opinions that not every high-value donor is going to be involved in an effort at corruption. Yet, this Court approved the approach of the contribution limits, which are hard to understand as anything other than prophylactic limits. Now, that's an example from intermediate scrutiny. Even in the strict scrutiny context, though, a case like Burson, I mean, this Court understood and said in the opinion, we can't tell whether 75 feet would be precisely okay or whether 90 feet or 100 feet. We don't have a scalpel to probe that either. But we're going to approve 100 feet because it's a basic way of dealing with this problem, identifying the area of potential concern, and people can do their electioneering 101 feet away. They can do it here on the 61st day. They can do it through the segregated fund. I think that is an approach that this Court has found acceptable, even in the First Amendment area, in dealing with these intractable problems. And I think Buckley --
04-1581 +++$+++ 20648 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But both of those examples, of course, are quantities, and once you -- I think it was Holmes who said, once you admit the necessity of drawing a line, you know, you can always find something on one side or the other. It's quite different between $1,000 and $2,000 or 100 feet and 75 feet and advocacy with respect to an election and advocacy with respect to an issue. It's an entirely different quality of a distinction, it seems to me.
04-1581 +++$+++ 20649 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and the difference -- the difference is this is a content-based inquiry.
04-1581 +++$+++ 20650 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well but, Justice Kennedy, precisely because you can't engage in just a formless content-based inquiry and precisely because there isn't any neat division between issue ads and candidate ads, that is why you need to have a different regulatory approach. I mean, this Court recognized --
04-1581 +++$+++ 20651 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think the real bottom line for the -- your opponent is that even a pure election ad should get the same constitutional protection as an issue ad, which is something we've rejected.
04-1581 +++$+++ 20652 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Justice Stevens. And of course, an even position one step intermediary from that or one step backtracking from that would be to say that all Congress can do in this area is regulate those ads that are unambiguously election oriented. And, of course, what's the class of those ads? Well, that would be express advocacy. And the one thing that I think is clear from this Court's decision in McConnell is this Court made clear that express advocacy is not a constitutional line. Congress is not disempowered to go after mixed ads that are -- yes, they have a component of issue ads, but you bet you they're intended to influence the election. Those ads are what are at issue here, and I think in order to be able to regulate those in a way that makes sense, the key is to regulate in a way that's not vague, that's not overbroad, but is not so under-inclusive that it can be easily evaded. And I think Buckley shows how hard that is. It's a tall order. In Buckley, this Court had a provision of FECA that prohibited independent expenditures related to a candidate election. The only way the Court could save that provision from the vagueness concern was to limit it to express advocacy. But having done that, the Court said, well, it's so limited, it's so easy to evade, we're going to find that it fails strict scrutiny. In McConnell, this Court said that in BCRA, after careful study, Congress had actually found out a way to avoid those three pitfalls. All of the proposed alternatives of -- of appellants run headlong into one or more of those obstacles. Look at the tests they've proposed. They've proposed looking at 16 factors, 4 details. They disclaim any interest intent, but any of those tests I think would be vague and unworkable. In contrast, they pluck a definition from the IRS regs that is designed to deal with 501(c)(3) corporations in a completely different context or a modification of a proposal by BCRA's sponsors, and they -- and they put those tests out there. And those would be very, very easy to evade in practice. In fact, I think if you use some of the tests that they propose or their amici proposed and you look at the body of ads that were before this Court in McConnell, you'd end up finding that a substantial percentage of them were grassroots lobbying. Well, if one thing has to be inconsistent with this Court's decision in McConnell, it's the conclusion that a substantial amount of the ads covered by this definition are unconstitutionally regulated because this Court clearly rejected a substantial overbreadth claim. The one thing I would say in -- in closing is to understand that Congress, having sort of avoided these very difficult pitfalls of vagueness, overbreadth, and easy evasion, came up with this definition in title II. But as this Court recognized in McConnell, title II of the statute does not stand alone. It is part and parcel of the broader regulatory regime here. And without title II, title I's limitations on soft money contributions to parties will succeed only in taking that soft money and directing it to corporations that are closely aligned with candidates or with the parties themselves. This statutory as-applied challenge that you have before it -- you strikes at the heart of the McConnell decision and at the heart of BCRA's title II. This Court should reject the invitation to revisit the McConnell decision and should give Congress' effort in this area a fair chance at success. Thank you.
04-1581 +++$+++ 20653 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, General. Mr. Bopp, you have 4 minutes remaining.
04-1581 +++$+++ 20655 +++$+++ FALSE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. What this -- what plaintiffs are relying upon here is the distinction that this Court has made between lobbying, on the one hand, and political campaigns on the other. As summarized by Justice Stevens' concurrence in Austin, quote, there is a vast difference between lobbying and debating public issues, on the one hand, and political campaigns for election to public office on the other hand. And that is because that the interests that have justified the regulation of corporate electioneering do not apply to corporate --
04-1581 +++$+++ 20656 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There is a vast difference, but the question I have is whether Congress has any voice in trying to draw the line that divides the two categories.
04-1581 +++$+++ 20657 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think they do, and they drew a line that was upheld on its face because the vast majority of ads --
04-1581 +++$+++ 20658 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and if we are in a gray area that there's some who could say it's issue and some could say it's electioneering, do we owe any deference to Congress' test that it has drafted?
04-1581 +++$+++ 20659 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I don't think you owe deference to the test. Under strict scrutiny, you owe the fidelity of the Constitution, and the Constitution concludes the right to petition. So it is a difficult question. It's fact-intensive, as all as-applied questions are.
04-1581 +++$+++ 20660 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So your position basically would say we should take all of these cases on a case-by-case basis and not give any presumptive weight to what -- what Congress has done.
04-1581 +++$+++ 20661 +++$+++ TRUE +++$+++ MR. BOPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I think that you can draw a rule that relies on objective criteria, just as you have in the Noerr-Pennington doctrine, to distinguish between illegitimate efforts to -- for predatory anticompetitive practices or monopolies, to distinguish between those and -- and -- the Court has even used the phrase, genuine efforts to influence Congress with respect to -- or any governmental agency with respect to the adoption of laws. That has been based on objective criteria as the Court has explained. You have adopted objective criteria to distinguish lawsuits that fall within the right to a petition or those that were brought illegitimately for anticompetitive reasons. It's not that this is -- this exercise is an easy exercise, but it is demanded by the fact that the -- the Congress adopted a very broad statute. The only content in this electioneering communication provision -- the only content requirement is that you name the candidate. And the reality is that those candidates often are incumbents and they are engaged in lawmaking functions during these election periods. I mean, there is a difference like in Britain. You know, Parliament is dissolved so that there -- there is a bright line distinction between an election and Parliament actually exercising governmental power. But when these things overlap and when the Constitution demands the recognition of the right to petition, then that needs to be dealt with in this as-applied challenge. Now, there's a vast -- there's a huge number of -- of lobby groups. They have made a conscious decision that it is more important to them to influence what Government does today than to influence in a speculative and remote manner who is going to be exercising that power next year through elections. Wisconsin Right to Life, in the face of these restrictions, have still decided that it's more important to lobby than it is to advocate the election or defeat of candidates and give money to candidates. The -- this is just the reality of our complex Government. It's the reality of the freedoms that individuals have to participate in that Government. It's not just about elections. It's more importantly about lawmaking and citizens have a robust right to participate in that lawmaking power, and as a result, this Court should recognize an as-applied exception for grassroots lobbying. Thank you.
04-1581 +++$+++ 20662 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Bopp. The case is submitted.
04-1618 +++$+++ 20666 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in 04-1618, Northern Insurance Company of New York v. Chatham County, Georgia. Mr. Estrada.
04-1618 +++$+++ 20668 +++$+++ FALSE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: In this admiralty case, the Eleventh Circuit held that Chatham County, a political subdivision of the State of Georgia, is entitled to sovereign immunity in Federal court. That is wrong for at least two reasons. First, for well over a century, this Court consistently has held that counties and other political subdivisions are not entitled to sovereign immunity. And second, in the specific context of in personam admiralty cases, the same rule has been recognized for over 100 years. To go to my first point, in Lincoln County v. Luning, decided in 1890, this Court squarely held that counties and other political subdivisions are not entitled to sovereign immunity. There are three, or at least three, significant aspects of Lincoln County that bear emphasis. The first one is that even by 1890, the Court was able to say that in its own cases it could see decades of case law where counties had been a defendant without any objection being raised. The second was that an important aspect of the Court's reasoning was the recognition that when a county is sued, the State is not a real party in interest, not the real party in interest, which is another way of saying that the county is not an arm of the State, the issue before here today.
04-1618 +++$+++ 20669 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can a county be an arm of the State for some things?
04-1618 +++$+++ 20670 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I am not aware of any county that has been organized so as to meet the requirements that this Court set forth in Hess and other cases for an arm of the State. This is, of course, not a question of labeling. It is possible that the -- that a -- that a particular State would associate so closely with a county, so closely control its -- its acts, and be on the hook for its liabilities, that under this Court's cases it could be an arm of the State, but that is not the case here. In fact --
04-1618 +++$+++ 20671 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I assume it's -- I assume it's sort of a -- a case-by-case inquiry. In other words, the county could be an arm of the State for some purposes but not others.
04-1618 +++$+++ 20672 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is -- that is a possibility, Mr. Chief Justice. I'm not aware that this county would meet that inquiry with respect to what we have here. What we have in this case is essentially two propositions. One is that the county, like every other county in the country, exercises a slice of State power, and that was something that was found unremarkable by this Court in Lake Country Estates. And the second one is that this county, like many other organs of government, may get funding, even substantial funding, from the State, and again, that was found unremarkable in Mt. Healthy by this Court. What is controlling here is that the county, like most counties or maybe all counties, enjoys a significant amount of autonomy, has the power under the State law to raise its own revenues through taxes and bonds, and that the State is ultimately not liable for its debts. And under -- under those factors, the county is unable to meet any definition of arm of the State that has ever been articulated by this Court's cases.
04-1618 +++$+++ 20673 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is -- is the failure to extend immunity to counties and municipal entities in a State just a historical relic? It depends on semantics. Or is there some normative or good government policy that dictates the distinction?
04-1618 +++$+++ 20674 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think as a -- as a fundamental feature of the Federal system and -- and the plan of the Convention, that the States came together as sovereigns to form a new country, and under this Court's cases, the immunity that they retain is called residual because it is recognized that insofar as they did not relinquish it to the National Government, they kept it. There is no historical record of the founding that contemplates that counties came to the Convention as sovereigns.
04-1618 +++$+++ 20675 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's just a -- it's just a close textual reading of the Eleventh Amendment. Right?
04-1618 +++$+++ 20676 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1618 +++$+++ 20677 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It says a State. It doesn't say county.
04-1618 +++$+++ 20678 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That might be the end of the case, in fairness, Mr. Chief Justice, if the Eleventh Amendment were the source of the sovereign immunity that this Court has recognized, but we know from cases like Alden v. Maine that the Eleventh Amendment is merely an example of the structural immunity that is implicit in the structure of the Constitution.
04-1618 +++$+++ 20679 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it's -- it's a matter of respecting the dignity of the States because they participated in the Convention, the plan of Convention?
04-1618 +++$+++ 20680 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And because they came to the Convention as sovereigns. Let me say that --
04-1618 +++$+++ 20681 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well -- I -- I guess, in -- in going beyond the Eleventh Amendment, we were appealing to an understanding of sovereignty that existed at the time of the framing.
04-1618 +++$+++ 20682 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly right.
04-1618 +++$+++ 20683 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And at the time of the framing, counties in England did not enjoy the -- the sovereign immunity of the king, did they?
04-1618 +++$+++ 20684 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do not believe that counties anywhere at the time of the founding enjoyed the sovereign immunity that was -- that has been recognized by this Court's cases. And you're right, Justice Scalia, that this has been reflected in -- in the Federalist Papers, 81, by Hamilton. It was clear, at least to some of the Founders, that this was a feature that need not be stated in the Constitution in order to recognized.
04-1618 +++$+++ 20685 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it's a historical relic based on the dignity of the State, or the king in one case, and of corresponding lack of dignity of the entities on the other?
04-1618 +++$+++ 20686 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it is -- it is what the history was and what the plan of the Convention was, and it's also a recognition, even functionally, that we're talking about sovereign immunity. And I think most common sense understandings of what a sovereign is would imply at least the ability to prescribe law for the government of others without having to draw your authority for that from a higher source and without being accountable to a higher source. A State within the respective sphere would meet that requirement, but that would not be true of counties. I will point out, as my third point with respect to the Lincoln County case, is that the -- the case came down March 3rd, 1890, which was the same day that the Court handed down Hans v. Louisiana. And that is significant because, as the Court is aware, the holding of Hans has been the subject of significant disagreement over the years since by members of past and current courts, and many members of the courts have viewed Hans as an unwarranted extension of sovereign immunity. If the Court was not prepared to extend immunity to counties on the day that it ruled on Hans, it seems hard to see why it would do it now. And in fact, the history of this Court's cases since then reflects an almost inflexible understanding, again and again, that counties and political subdivisions are not entitled to the State's immunity. With respect to my second point --
04-1618 +++$+++ 20687 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you -- would you say thoughtful rather than inflexible? (Laughter.)
04-1618 +++$+++ 20688 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I will settle for thoughtful, but I'm hoping for inflexible. (Laughter.)
04-1618 +++$+++ 20689 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect to my second point, Mr. Chief Justice, Workman v. City of New York squarely dealt with the question whether a political subdivision, a -- a municipality made up of four counties in that case, was entitled to immunity in an admiralty suit in personam, and the Court concluded that the answer was no. Now, the only argument I have heard for why Workman is not controlling in this case has been that somehow in Ex parte New York No. 1, this Court cast doubt on that holding. But if you look at the portion that is being relied on, all that the Court said in Ex parte New York was it cited one of the distinctions between the New York case and Workman, when it could have cited two. That's not enough to override what the case actually says. And one of the reasons that I started with the Luning County is that even if there were any doubt on the question or even if Ex parte New York had cast enough doubt under Workman, despite the uniform understanding since Workman that that's what the rule is, the fact that this Court in every other context of sovereign immunity has consistently held that counties are not entitled to sovereign immunity ought to be dispositive of the question there as well.
04-1618 +++$+++ 20690 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you -- do you agree that -- that it's possible that an entity can have sovereign immunity in admiralty where -- where the same entity would -- would not have it elsewhere?
04-1618 +++$+++ 20691 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No --
04-1618 +++$+++ 20692 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I find that discussion quite perplexing.
04-1618 +++$+++ 20693 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do not believe that is possible, and with respect to the argument to that effect that is being advanced by Respondent, a close reading of the cases being cited will disclose that they're not, in fact, unique to admiralty. They are common law cases about what the -- what the power --
04-1618 +++$+++ 20694 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They're talking about immunity in most of the cases, not necessarily --
04-1618 +++$+++ 20695 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sovereign immunity.
04-1618 +++$+++ 20696 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- not necessarily sovereign immunity.
04-1618 +++$+++ 20697 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. And -- and another important distinction, Justice Scalia, is that even if one could unearth a -- a body of case law that recognized municipal immunity at the time of the founding, it would not become sovereign immunity, and that's the only issue that is -- that is in contention here.
04-1618 +++$+++ 20698 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- but there is a textual basis for drawing a distinction between admiralty and law and equity. The Eleventh Amendment doesn't extend to -- to admiralty.
04-1618 +++$+++ 20699 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is right, Justice Stevens. And if this Court had held that the Eleventh Amendment were the source or even the sole source of sovereign immunity, that would be a compelling argument. The main holding of the Ex parte New York No. 1 case is, indeed, that that limitation does not apply because, as understood by Hans, which had been ruled on some 31 years earlier, the sovereign immunity really comes from the structure of the Constitution. And the state of this -- this Court's doctrine is that the Eleventh Amendment's sole purpose was to overrule the holding in Chisholm, and that but for the fact that Chisholm came down, the Eleventh Amendment never -- if the Eleventh -- if the Eleventh Amendment had never been enacted, every sovereign immunity case would come out the same way. That is the current understanding by the Court about how the doctrine works.
04-1618 +++$+++ 20700 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Alden tells us what the understanding of the Founders was. Of course, it's the understanding of some of the Founders. It did not include those who were in the majority in Chisholm.
04-1618 +++$+++ 20701 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is -- that is true, though with respect to Chisholm and the issue in this case, Justice -- Justice Stevens, it is very instructive that both sides of the argument in the Chisholm case understood that the issue was whether States may get sovereign immunity. Both sides conceded that political subdivisions didn't. Chief Justice Jay for the majority argued that it made no sense to extend sovereign immunity when a -- where -- where a city like the size of Philadelphia was the same size and had as many inhabitants as the State of Delaware, and that's what he argued. And Justice Iredell, whose views have come to command a majority of the Court, saw it to his argument to distinguish political subdivisions from States, so that even though this Court's first holding was not until 1890, it was embedded in the understanding at the founding, as -- as shown even by Chisholm, that political subdivisions were not entitled to sovereign immunity. I would like to reserve the remainder of my time, if I may, Mr. Chief Justice.
04-1618 +++$+++ 20702 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. Mr. Himmelfarb.
04-1618 +++$+++ 20704 +++$+++ FALSE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: States enjoy a constitutionally protected immunity from suit, but cities and counties do not. That principle has been established by an unbroken line of precedent dating back to the 19th century and was applied to an admiralty suit more than 100 years ago in Workman v. City of New York. Both Workman and the principle it applied answered the question presented in this case. Workman held that, as a matter of the Federal law of admiralty, a political subdivision is not entitled to immunity from suit. In the course of deciding that question, the Court explained that if the government entity defendant in an admiralty suit were a sovereign, it would be entitled to immunity, not as a matter of admiralty law, but as a matter of the law of sovereign immunity, in which case the Court would be without jurisdiction. The Court went on to say, however -- and this is at page 570 of the opinion -- the municipal corporation of the City of New York unlike a sovereign was subject to the jurisdiction of the Court. Workman's holdings resolved the issue in the case. But the result would be the same even if Workman had never been decided. From the Lincoln County case in 1890 through the Richland County case in 2003, this Court has repeatedly held that States, but not cities or counties, are sovereign and that States, but not cities or counties, are therefore entitled to sovereign immunity. A city or county is no more a sovereign in an admiralty case than it is in any other type of case. The theory on which the court of appeals apparently relied was that not only States but what it called political subdivisions of States are entitled to sovereign immunity, at least when the -- the political subdivision is exercising a power delegated by the State. But that's no different from saying that cities and counties are, after all, entitled to sovereign immunity because every city or county is a political subdivision of a State and every city or county exercises power delegated by the State, what this Court has called a slice of State power. So the apparent rationale of the court of appeals is just flatly inconsistent with more than a century of this Court's precedent.
04-1618 +++$+++ 20705 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You don't doubt that a county could have sovereign immunity if it qualified as an arm of the State in a particular instance.
04-1618 +++$+++ 20706 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely correct, Mr. Chief Justice. Of course, as this case comes to the Court, all agree that Chatham County is not an arm of the State for purposes of this Court's constitutional sovereign immunity doctrine. So the only issue in this case is whether there is some other ground on which the county would be entitled to immunity, and there's none. Respondent's theory is that there are two distinct notions of sovereign immunity, what it calls Eleventh Amendment immunity and what it calls residual sovereign immunity. A fundamental flaw in that theory is that there is only one doctrine of -- of constitutional sovereign immunity. What Respondent calls residual sovereign immunity and what this Court has sometimes identified as the immunity associated with the residuary sovereignty that comes from Federalist 39 is the doctrine of constitutional sovereign immunity.
04-1618 +++$+++ 20707 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Hans -- Hans is residual sovereign immunity.
04-1618 +++$+++ 20708 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely right, Justice Scalia, and every case that --
04-1618 +++$+++ 20709 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Some -- some of our brethren don't -- don't agree with it. They don't like the residue and would limit it to the Eleventh Amendment.
04-1618 +++$+++ 20710 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1618 +++$+++ 20711 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If you're going to have a residue, Hans is it I suppose.
04-1618 +++$+++ 20712 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, Justice Scalia. The -- the theory of residual immunity is that before the Constitution was established, States were sovereign. When they entered the Union, they surrendered some aspects of their sovereignty and retained other aspects of it. One aspect that they retained was an immunity from suit. A city or county is not entitled to sovereign immunity because it wasn't a sovereign at the time of the founding and thus had no immunity -- no sovereignty either to surrender or to retain. From that --
04-1618 +++$+++ 20713 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Your -- your friend in the -- in the red brief, though, reviews a lot of old cases, suggesting at the time of the founding, that counties were not subject to suit.
04-1618 +++$+++ 20714 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think the cases that Respondent cites do, in fact, stand for that proposition. In fact, the principal authority on which Respondent relies, the Men of Devon case, which is an English case, so far as I can tell, was neither an admiralty case nor a case that accorded immunity to the county. The case, as far as I can tell, was a straightforward negligence case, and the holding of the case was that inhabitants of the county, as distinct from the corporate entity, the county itself, cannot be held liable in a negligence suit. So I don't think that that case provides any support for Respondent's theory.
04-1618 +++$+++ 20715 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Nor could charities. They were immune as well. But it -- it certainly wasn't sovereign immunity.
04-1618 +++$+++ 20716 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely right, Justice Scalia. At the time of the founding, various entities, including sub-State governmental entities, were entitled to some forms of immunity. This Court traces the history of municipal immunity at some length in the Owen v. City of Independence case. But as -- as you just pointed out, Justice Scalia, whatever immunity that was, it was not sovereign immunity, and there's no basis for constitutionalizing it in the context of this Court's constitutional sovereign immunity doctrine any more than there's a basis for constitutionalizing the immunity that a private entity or an even an individual might have enjoyed at the time of the founding.
04-1618 +++$+++ 20717 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask you this? Supposing a State passed a statute that said that the following counties shall hereby be designated arms of the State and be entitled to immunity, period. Would that provide an adequate defense, do you think?
04-1618 +++$+++ 20718 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That in and of itself, Justice Stevens, would not. This Court's cases make clear that in deciding whether an entity is an arm of the State, there are three principal considerations to take into account. You've identified one of them, which is the classification of the entity under State law. The other two, which are probably more important, are whether the State would ultimately be liable for a judgment against the political entity and also the extent of control exercised by the State over the entity. It's important to point out, with respect to the latter of those two considerations, that control in this context doesn't mean simply that the county has been delegated authority by the States since, after all, all counties are -- are delegated authority by the State. It means that there's more of a day-to-day control, for example, that it is the Governor who appoints the members of the commission that governs the particular entity, the Governor who has the power to remove them. The Governor may have veto power. That's the sort of considerations that courts have taken into account in deciding whether the control element of the arm of the State inquiry is satisfied. There is no basis for any notion of constitutional sovereign immunity beyond the one identified by this Court. Consequently, there's no basis for any arm of the State test other than that applied by the Court in its cases involving the one doctrine of constitutional sovereign immunity. The only other possibility that would entitle Respondent to prevail in this case would be some notion of non-constitutional immunity unique to admiralty. But, of course, whatever else Workman held -- and Respondent takes the position that Workman did not decide the constitutional issue. We think it did, for the reasons I've already stated. But whatever else it held, it clearly held that, as a matter of the Federal law of admiralty, political subdivisions are not entitled to immunity from suit. So the Court could not adopt a non-constitutional rule of immunity limited to the admiralty context without overruling Workman. Respondent does not ask the Court to do that. And indeed, so far as I can tell from reading Respondent's brief, it does not even advocate a non-constitutional rule of immunity for admiralty cases. So there's no non-constitutional basis for immunity. The only constitutional basis for immunity is when the political entity is an arm of the State. As this case comes to the Court, all agree that Chatham County is not. It necessarily follows, therefore, that Chatham County was not entitled to immunity and that the judgment of the court of appeals should be reversed.
04-1618 +++$+++ 20719 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The question presented is -- is only sovereign immunity, isn't it? It's -- we don't have to decide whether there might be some other type of immunity.
04-1618 +++$+++ 20720 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. That's right, Justice Scalia. To the extent that sovereign immunity is understood to mean constitutional immunity, as distinct from some judge-made or statutory immunity, that's right.
04-1618 +++$+++ 20721 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Himmelfarb. Mr. Hart.
04-1618 +++$+++ 20723 +++$+++ FALSE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, may it please the Court: The county that has been expressly delegated the core sovereign function by the State, unique or sovereign function, such as navigable waters, is entitled to residual sovereign immunity in an in personam admiralty action. Justice Ginsburg just asked a question about counties in cases. I know of no case where a State has delegated a core sovereign function, cloaked the entity with immunity, in which this Court has ruled it's not the arm of the State.
04-1618 +++$+++ 20724 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Who pays judgments? Who pays judgments against the county?
04-1618 +++$+++ 20725 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Who pays judgments against the county is initially probably the county, but under Georgia law, the department of DOT -- Department of Transportation has a fund in which they can contribute towards that. And if you've looked in -- and I think funding matters less here than -- than the fact that these big projects are generally a collage of funding issues. You have State and Federal money usually mixed in. So you're in a situation where, you know, if you went back 50 years ago and looked at funding, it might be very definitive. In these days and times, if you look at projects, you know, you got money coming from all sources, and if you start tracing the -- the money, you can go in six different directions.
04-1618 +++$+++ 20726 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Hart --
04-1618 +++$+++ 20727 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I think the dignity interest -- excuse me.
04-1618 +++$+++ 20728 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. --
04-1618 +++$+++ 20729 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought that was one of the main indicia of whether an entity had been set up as an arm of the State, that is, the State would be directly liable.
04-1618 +++$+++ 20730 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the Hess case says that -- that it -- that it's one of the default issues, and then you go to the dignity interest and the funding interest. But if you go back and look at the California Regents case v. John Doe, in that case, it shows and explains why funding becomes not a whole lot in the way of meaningful factor because if you looked at --
04-1618 +++$+++ 20731 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, core -- core government functions isn't -- isn't the test either. I mean --
04-1618 +++$+++ 20732 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand that.
04-1618 +++$+++ 20733 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you know, the Federal Government and I think some States gave -- gave railroads the power to condemn land. Did that make railroads sovereigns entitled to sovereign immunity? I don't think so.
04-1618 +++$+++ 20734 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, sir, I wouldn't argue that either.
04-1618 +++$+++ 20735 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So the mere fact that -- that your county is exercising some, quote, core government functions, that -- that doesn't -- doesn't get you there.
04-1618 +++$+++ 20736 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think you look at the -- the history, you look at the dignity of the State, and you look at the functional realities of State management. And if you look at the history, counties were immune at common law in England. Counties were immune at the time of the framing.
04-1618 +++$+++ 20737 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That was -- in many of those cases cited in your brief, it was because the duties they were performing they were performing pro bono publico.
04-1618 +++$+++ 20738 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure.
04-1618 +++$+++ 20739 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the doctrine extended immunity to them on that basis, not -- not as sovereigns.
04-1618 +++$+++ 20740 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it extended -- it extended to them as part of an overall sovereignty -- sovereign immunity picture.
04-1618 +++$+++ 20741 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It wasn't sovereign immunity. It was -- charities had immunity until very recently. Some States still had it when I was in law school. You couldn't sue a charity for tort.
04-1618 +++$+++ 20742 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I still think if you go back and look at these core functions and if you -- if you define that as something that's being delegated by the State where the State says we want you to have sovereign immunity, then that's something that should be respected as part of the dignity of the State. In this particular case, Georgia is extremely strong on that point. It's in the constitution that -- that counties can handle bridges. It's in the constitution that they're immune. You can only waive it by an act of the legislature.
04-1618 +++$+++ 20743 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what other sorts of torts would this apply to, as applied to Chatham County? If Chatham County --
04-1618 +++$+++ 20744 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Torts?
04-1618 +++$+++ 20745 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- were sued, yes -- if Chatham County were sued for something done by a law enforcement officer, would your theory apply?
04-1618 +++$+++ 20746 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the -- I think -- no, sir, I don't think under -- like a 1983 action or a Fourteenth Amendment exception under section 5, I don't think the immunity would reach that far. I think the county would still be exposed to the liability there under that case law. I don't think you have to do away with what you have under the Fourteenth Amendment -- excuse me -- under the Eleventh Amendment or the case laws thereunder. But I don't think that those -- those cases under there define the whole of sovereign immunity of the general principles of sovereign --
04-1618 +++$+++ 20747 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, has the Eleventh Circuit or did the old Fifth Circuit ever apply this doctrine in any area outside of admiralty?
04-1618 +++$+++ 20748 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not that I am aware of.
04-1618 +++$+++ 20749 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What are you relying on in the Georgia constitution? It doesn't mention counties, does it? It just says except as specifically provided in this paragraph, sovereign immunity extends to the State and all of its departments and agencies.
04-1618 +++$+++ 20750 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir. And there's strong case law, the Millwood case, that says basically counties are part of the sovereign of the State. And as recently as last year, in a lawsuit against the Department of Corrections, the -- the Attorney General of the State argued that the county was a sovereign of the State, part of the State, took the position it couldn't be sued because a sovereign can't sue itself.
04-1618 +++$+++ 20751 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There can be no -- no -- well, I assume you have a -- a tort -- tort claims act that waives sovereign immunity in some circumstances.
04-1618 +++$+++ 20752 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir.
04-1618 +++$+++ 20753 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But apart from that, you can't sue counties in tort.
04-1618 +++$+++ 20754 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You can -- generally in the -- in -- as a county -- as a State law claim, no, unless there's a waiver. Now, the legislature has waived -- there's been quite a few waivers in the last year. They just waived in automobile insurance cases, for example. And -- and that's a matter of the State.
04-1618 +++$+++ 20755 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ To what -- what other area would this apply? If the county has sovereign immunity, how about the county school board?
04-1618 +++$+++ 20756 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We would contend that the core sovereign function has to truly be a core sovereign function and it has to be supported by some type of history, some type of -- of State dignity there and -- and some reality --
04-1618 +++$+++ 20757 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And education would not --
04-1618 +++$+++ 20758 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And we would not put education in that class. If you go back and look at the history at the time of framing, you would have to start looking at what government did do and didn't do. Now, you could do a historical analysis, and maybe I would be wrong and the history would show that education was important. But my understanding is education at that time was probably a pretty local matter.
04-1618 +++$+++ 20759 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How about the sanitation department?
04-1618 +++$+++ 20760 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would get sort of iffy there from the standpoint that public health, quarantines, those type of services for disease were handled by the State and were handled in a -- in a manner that you might be able to define it as a core function, but that would probably be a stretch. This is a narrow exception and we think it deserves that insofar as the navigable waters.
04-1618 +++$+++ 20761 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I'm not sure that operating bridges at the time of the framing was a core sovereign function.
04-1618 +++$+++ 20762 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it --
04-1618 +++$+++ 20763 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There are an awful lot of private bridges.
04-1618 +++$+++ 20764 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir. The -- the exception, though, was at common law, counties could not be liable for the operation and maintenance of bridges, and that was adopted by Georgia prior to the time of the framing and that was the law of the State. And we would take the position that that survived under this residual sovereign immunity theory.
04-1618 +++$+++ 20765 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's bridge immunity, not sovereign immunity. I mean --
04-1618 +++$+++ 20766 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we're -- we're focusing that --
04-1618 +++$+++ 20767 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- it doesn't come -- it doesn't come within the Federal Constitution.
04-1618 +++$+++ 20768 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, neither does Federal sovereign immunity come textually within the Constitution.
04-1618 +++$+++ 20769 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, no, I'm not talking about textually. I'm talking about in structure. There's nothing in the structure that has anything to do with bridges.
04-1618 +++$+++ 20770 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The answer to that question is that if you look at the -- the function of -- of State government and you look at what they define as being important -- and in this case, Georgia has defined that as one of the functions under its constitution and under its statutes -- then there's a dignity interest there that ought to be respected insofar as outside that realm. One of the --
04-1618 +++$+++ 20771 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask this? Are you suggesting that a county could be an arm of the State for some purposes but not for others?
04-1618 +++$+++ 20772 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir, I believe that. We don't concede that we might not fit in the -- that we could -- could not fit in within the arm of the State. The Court chose in the question presented not to address that issue and asked us to address the issue outside -- assuming we were not an -- we were a non-arm of the State. And our brief does make some mention of -- of the arm of the State analysis within it.
04-1618 +++$+++ 20773 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the -- the court of appeals has said that you weren't asserting that you were an arm of the State.
04-1618 +++$+++ 20774 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we were asserting that we were -- we were immune under residual sovereign immunity and we conceded for -- that the county has not generally been recognized under the Eleventh Amendment as being sovereign -- as sovereign -- having sovereign immunity. That is not to -- and -- and we needed some way to distinguish that from the immunity that we're arguing, the immunity retained by the States. And we feel that that's something that could -- could have broader parameters than -- than the current arm of the State test. And the focus ought to be on these core functions, history and dignity, and the functionality of the State. That takes you away from your Eleventh Amendment analysis where you're dealing with sovereign immunity all the time in -- in that context, and you're now moving to discussing general principles of sovereign immunity outside the context of the Eleventh Amendment in defining those contours, and we feel like this might give you a mechanism by which to do that. And it's a very narrow exception, and it would be something that the Court could rule on or the Court could simply rule that counties were immune in in personam admiralty actions, if you wanted to make it even a more narrow ruling. One of the things that has been argued by the Solicitor General is that there's a single sovereign immunity, that there's this unified sovereign immunity. And it's -- and to the extent that we're talking about general principles of sovereign immunity, we agree with that. We do not agree with the part that says that when we deal with Eleventh Amendment arm of the State, that that part defines the whole. And when you get into a situation of -- of how do you define the sovereign -- sovereign immunity, you have sovereign immunity at the Federal Government level, and if it's a single sovereign immunity that you accept and as argued by the -- by -- by the Solicitor General's office, then the question becomes, is there a reciprocal sovereign immunity that's coextensive with Federal sovereign immunity? And that's an argument that -- that certainly could be made. It -- and it was addressed somewhat or raised somewhat in Alden where they discussed we're not ready to say if the Federal Government is raising sovereign immunity, which they do on a regular basis, that perhaps the States might not have that. Now, we're not arguing that the county in any way would have sovereign immunity to the extent of the Federal Government. We're saying that insofar as these functions that have a history at common law at the time of the framing and has been consistently recognized by the Supreme Court, navigable waters and the soils thereunder have always been considered to be a sovereign interest of the State by this Court. If you go back and look at the St. Anthony Falls case, at that time they were dealing with riparian rights, and -- and there was a deference to the State in regard to that. You also had the Coeur D'Alene Indian Tribe dealing with submerged lands, and you recognized the sovereign interests of the State in those situations, and in the Seminole Tribe case, said there's no exceptions in regard to carving out an exception to an admiralty immunity.
04-1618 +++$+++ 20775 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All that establishes is simply that if the State were operating this bridge and if the State were on the hook for any judgments and if the State had control over the people who were making the decisions, that there might be an issue of State sovereign immunity.
04-1618 +++$+++ 20776 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir.
04-1618 +++$+++ 20777 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The whole problem is that it's the county that's doing all that.
04-1618 +++$+++ 20778 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We understand that, but we're acting on behalf of the State and acting as the State there and --
04-1618 +++$+++ 20779 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the State doesn't pay the damages.
04-1618 +++$+++ 20780 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The State --
04-1618 +++$+++ 20781 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The State doesn't tell you how to do it.
04-1618 +++$+++ 20782 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The State has the potential to pay damages there through -- through the DOT, the Department of Transportation funds.
04-1618 +++$+++ 20783 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If it wishes. If it wishes.
04-1618 +++$+++ 20784 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If it wishes. I have to concede that point. But from the -- from the standpoint, if you go back to California Regents case, there wasn't a whole lot of potential liability there. Theoretically they may have, but they had a contract. The State had a contract there in which it was indemnified by -- by the Federal Government.
04-1618 +++$+++ 20785 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The State can pay my damages if it wishes. It just doesn't happen to have a statute to that effect right now. But I mean, that -- surely, that doesn't -- doesn't --
04-1618 +++$+++ 20786 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we take the position that the funding issue and the control issue ought to be less -- outside of the Eleventh Amendment analysis, arm of the State ought to be something that matters less. The dignity interest ought to matter more. The funding issue is something that in every major project, you've got a collage of funding, and it comes from all different sources. And to some extent, who pays the bill and how they pay the bill depends on the structure of the deal. And I don't think it's very enlightening, as it was once 50 years ago when things were much simpler. We're also talking about, in bridge cases or most building road projects, you have the situation where a lot of times the State comes to one of its entities and says, we'll give you the money, build a bridge. We'll build -- build the road. Quite frequently that happens all the time in larger counties. If the county does the function that it's doing for the State --
04-1618 +++$+++ 20787 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's a different question. The immunity looks to where the money is going to come from to satisfy a judgment. I don't think it looks to where the funding came from in the first instance.
04-1618 +++$+++ 20788 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- the --
04-1618 +++$+++ 20789 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's the claim on the treasury of the judgment that raises the sovereign immunity issues.
04-1618 +++$+++ 20790 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Insofar as this case goes, there is the potential for payment by the State, and -- and that's about all we can say there. We'll have to -- we -- as Justice Scalia said, is -- is there a absolute duty for them to pay it? But -- but the practicality of it is usually when they delegate you the function and the State arms you with sovereign immunity and tells you to go out and do that, they will step up to the batter's box at the time something like that would occur because they have sort of delegated that core function to you to do. The control issue we feel is something that the dignity issue ought to take precedence over. The control issue is something that the State decides during the delegation, and if you wish to place an emphasis on the control, then you're asking -- asking basically, do you require the State to make a certain kind of delegation? Earlier we had a question that -- that followed up on the issue of if there -- if we just did a single function alone, built a bridge without anything else, would that alone create a responsibility on the part of the county? And I think in -- in regard to that, the core function here is the county accepting the responsibility of the State.
04-1618 +++$+++ 20791 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about the South Carolina Supreme Court's opinion in the Hines case which seems to run counter to your argument?
04-1618 +++$+++ 20792 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, ma'am. The Hines case was an Eleventh Amendment case, number one. Number two, it -- it did state, in the front end of the case, that they would apply the substantive law of admiralty irrespectively of the forum. But the residual sovereign immunity issue was never argued by either side in the case. That case went up on -- as a result of the granting of a motion to dismiss on a fairly skimpy record there, and the funding issue was never really -- really analyzed there. So we see that as a -- a case that typically is Eleventh Amendment case and there has not been any ruling whatsoever in -- in the context of whether there would be residual sovereign immunity.
04-1618 +++$+++ 20793 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Hart, may I ask this question? In the -- I noticed the opinion is a per curiam opinion of the Eleventh Circuit. Was the case argued orally in the Eleventh Circuit or was it submitted?
04-1618 +++$+++ 20794 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, sir, it was not.
04-1618 +++$+++ 20795 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It was submitted.
04-1618 +++$+++ 20796 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Just submitted. The --
04-1618 +++$+++ 20797 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The -- the Eleventh Circuit had a prior decision, didn't they?
04-1618 +++$+++ 20798 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Yes, ma'am. There had been a similar case arising out of Chatham County, and it went up and was affirmed per curiam, and then there was a short opinion the second time the case went -- went -- the second case went up, and there was a very short opinion in regard to that, taking deference to their decision in the -- in the first opinion and talking a little bit about the residual sovereign immunity issue that we had here.
04-1618 +++$+++ 20799 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That was an old Fifth Circuit case --
04-1618 +++$+++ 20800 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. There was a Wickman case that -- that was several years ago that is still good in the Fifth, and our circuit adopted that when they put in the new circuit. What we're asking here today is basically a very narrow holding. We're asking that there be limited sovereign immunity -- there -- excuse me -- that there be -- in unique circumstances where core functions of the State are delegated to the county, that the county would have sovereign immunity, and that a State can cloak a county with sovereign immunity. It seems that that is an issue that the State ought to be able to do out of its delegation -- out of its dignity function. They ought to have the right to run the State and -- and delegate those functions as they see fit.
04-1618 +++$+++ 20801 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's not unusual that counties maintain and run bridges in your State, is it? I mean, that's --
04-1618 +++$+++ 20802 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir, that's --
04-1618 +++$+++ 20803 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's the normal --
04-1618 +++$+++ 20804 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know if I'd go so far as normal, but for larger communities, yes, sir.
04-1618 +++$+++ 20805 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then -- then how do we know it's a core dignity function of the State if they're -- the normal rule is somebody else does it?
04-1618 +++$+++ 20806 +++$+++ TRUE +++$+++ MR. HART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's a function that historically in the Constitution was recognized would be a function on behalf of the State with the counties. And -- and it has traditionally historically been a function of the States to build roads and run bridges. And in regard to that, you're talking about navigable waters, and the State has an interest in its own navigable waters. They're delegating a function of the government to build a bridge over their navigable waters and the soils thereunder. So we would take the position there that -- that that is a core sovereign function, that the navigable waters are a sovereign interest of the State, and that should have the dignity and respect of that. The design of the Constitution was that there would be dual sovereignty created both in federalism and under State sovereignty. There's not a single case you all are going to have that's going to be able to define all the principles of general sovereign immunity, but we think this is a situation in which the Court, by making a holding in in personam actions, can recognize the State's residual immunity, not so much focus on the Eleventh Amendment and the cases thereunder, but try to come up with a set of principles that you can begin talking about the whole of general sovereign immunity. And we do not necessarily agree that the -- the State -- the arm of the State test has to apply in all situations. We think this is an exception. It's a narrow exception. Core sovereign functions are going to be narrowly defined, especially when a county is acting. You're going to have to support it with some history. You're going to have to support it with some State dignity where the State has given a clear indication through their State laws that it's a function that the county ought to do, and -- and that needs to be respected from the standpoints that States are given wide latitude in the way that they set up and run their government. And we respectfully request that you make a finding that we have the right to have sovereign immunity in this particular narrow set of circumstances involving navigable waters as -- as it stands. Thank you.
04-1618 +++$+++ 20807 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Hart. Mr. Estrada, you have 8 minutes remaining.
04-1618 +++$+++ 20809 +++$+++ FALSE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, just a few points. On the issue that was raised by Justice Alito, the -- this doctrine comes from the Wickman case from the old Fifth Circuit. That case relied primarily on a -- on a case called Kegan from the Supreme Court of Florida, which was, indeed, a bridge case, but it was not an admiralty case. It was a case in which someone who was crossing a bridge with a heavy truck fell through the bridge because the -- the bridge was structurally unsafe. The old Fifth Circuit sort of took it as a bridge case and took over that doctrine. If that fact -- scenario were to come up in Chatham County and the plaintiffs and the defendants were diverse, there is no question that -- that the county would be entitled to plead its State law immunity under Erie. I will point out incidentally that even though in this case there is a diversity of citizenship and admiralty jurisdiction, this Court held in 1953 in a case called Pope & Talbot v. Hawn that in that circumstance, any defense that is available solely on the diversity side under Erie gets trumped by the uniform application of the maritime law. So that would not be an issue here. With respect to the question that was raised by Justice Ginsburg, Hines was an admiralty case in State court. Under no stretch of construction could that be viewed as an Eleventh Amendment case since it was not a case in law or equity and it was not in Federal court. And number three, the proprietary governmental distinction has been rejected in the Workman case itself where it was raised in the specific context of admiralty. I will point out it has never been part of this Court's sovereign immunity doctrine, and with respect, other areas of federalism law tend to indicate that it should not be adopted now. You may recall that such a distinction between core and non-core governmental functions was at the core of the -- of this -- this Court's cases under National League of Cities v. Usery, and in the Garcia case, the Court overruled National League of Cities primarily on the point that the distinction between core and non-core governmental functions had proven to be unworkable.
04-1618 +++$+++ 20810 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're -- are you suggesting that the -- the State would enjoy sovereign immunity in proprietary activities?
04-1618 +++$+++ 20811 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I am suggesting that if you named the State on the wrong side of the caption on the V in Federal court, it does enjoy sovereign immunity, irrespective of what your cause of action is. Yes, Mr. Chief Justice.
04-1618 +++$+++ 20812 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I would have thought, particularly when we're talking about the arm of the State doctrine, that the -- the nature of the activity is one of the key questions we look at.
04-1618 +++$+++ 20813 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think --
04-1618 +++$+++ 20814 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Maintaining bridges is one thing. You know, operating a for-profit activity would be something else.
04-1618 +++$+++ 20815 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it's -- it's sort of inherent in all of the cases that have been ruled upon, Mr. Chief Justice, that what tends to be delegated are those that are the normal functions of government, but I don't think this Court has ever held that it is the function of sovereign immunity doctrine to tell the States what are the appropriate functions of government. So I don't think there would be a distinction that would be supported by the cases.
04-1618 +++$+++ 20816 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I always thought the governmental proprietary distinction really came up in State law cases involving municipal liability. That's principally where it --
04-1618 +++$+++ 20817 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It did early on, and that was -- that was one of the issues that was put forth in the Workman case, Justice Scalia. With respect to the admiralty jurisdiction of the U.S. courts, this Court said in 1901 that it carried no weight. Thank you, Mr. Chief Justice. I have nothing further.
04-1618 +++$+++ 20818 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
04-163 +++$+++ 20822 +++$+++ FALSE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We will hear argument next in Lingle v. Chevron U.S.A. Attorney General Bennett.
04-163 +++$+++ 20824 +++$+++ FALSE +++$+++ MR. BENNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice O'Connor, and may it please the Court: For 70 years the Federal courts have deferentially reviewed both the efficacy and the wisdom of legislation, even when it affects property interests. This case squarely presents the question, should we now turn back the clock? We make two main arguments: first, that the substantially advance test should not be a standalone test for determining whether regulation affects a taking because such a test is fundamentally divorced from a major principle of the regulatory takings doctrine itself, economic injury; and second, if there is such a standalone test, it ought to be no more searching than the rational basis test of due process. As this Court has stated in First English, the Just Compensation Clause is not designed to interfere with the ability of government to affect property interests, but rather to require just compensation in the event of an otherwise valid taking. In this particular case, we had a circumstance where one single Federal judge conducted a fact trial where she evaluated the demeanor and credibility of one expert from Chevron and one expert from the State of Hawaii in order to make a determination of whether or not garden variety economic regulation was constitutional or unconstitutional. There was no -- the test applied would have been no different if this had been an act of Congress instead of an act of the Hawaii State legislature. In this case, what the district court did was wholly inconsistent, we submit, with any reasonable concepts of federalism, and if it had been an act of Congress that this district court judge was sitting in judgment of, it would have been entirely inconsistent with the respect that this Court has consistently said is due to a co-equal branch of government. A particular irony of the way the Ninth Circuit applied what it believed to be the Agins test, which it indicated the standard of review fell somewhere between rational basis and rough proportionality, but the -- the supreme irony of that, we suggest, is that if that test were applied, it would have the effect of overruling the very cases that Agins cited in supporting the language it -- it used, that if indeed you have this type of intermediate scrutiny, cases like Nectow and Euclid v. Village of Ambler could not stand because, as this Court has said, those cases set out a rational basis test, whether the object was in the power of the legislature or -- or the municipal authority and whether the means used to achieve it were rational. And the test the Ninth Circuit set up in this case, and as applied by the district court, would have overruled those very cases because there would have been a fact trial necessary to determine whether or not the -- the zoning ordinances at issue in that -- in those cases were efficacious or inefficacious.
04-163 +++$+++ 20825 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, does the fact that discrete or individual property rights are being affected and, indeed, taken justify some higher level of scrutiny than we would apply to general economic regulation by the State?
04-163 +++$+++ 20826 +++$+++ TRUE +++$+++ MR. BENNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. We -- we would think, first of all, this -- this Court has established that it doesn't look at whether some stick in the bundle of rights is affected by the regulation. It looks at the parcel as a whole. And second, this Court has said that it is shying away from per se tests, and indeed, it -- it looks at these types of cases under the rubric of Penn Central where the primary factor that the Court looks at is the extent of the economic injury and also the extent to which it interferes with reasonable investment-backed expectations. A particular irony of this case is that the Ninth Circuit has said this particular statute of the Hawaii legislature affects a taking without any regard to whether or not it caused any economic injury to Chevron at all. This Court has found that when the major flaw in legislation or the -- the major argument as to why legislation should be deemed to be unconstitutional turns on the legitimacy of the legislation, that finds a natural home in the due process analysis, rather than in an analysis that looks at whether or not the legislation actually effects a taking or not. Indeed, this Court, Your Honor, despite what it said in Agins in relying on the due process analysis, has never found a taking based upon doubt as to the likely efficacy of economic legislation.
04-163 +++$+++ 20827 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, we've said it a lot, though, haven't we? Why do we keep on saying it?
04-163 +++$+++ 20828 +++$+++ TRUE +++$+++ MR. BENNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I think that in -- in Del Monte Dunes, every opinion in the case discussed this language and -- and said that the Court has never indicated that this sets out a more exacting test than rational basis other than in the rough proportionality context of Nollan and Dolan. And I think the language used in Agins, which came from due process cases, has somewhat taken on a life of its own, and the lower courts and the -- the supreme courts of the several States have had quite -- have had a great deal of difficulty in -- in dealing with what exactly the language means. We believe, as we've set forth in our brief, that to the extent it establishes this intermediate scrutiny, as the Ninth Circuit felt it did, that it would be dicta in Agins, but if the Court viewed it as not dicta, we think that the Court ought to reconsider the constitutional rule under the standards for such reconsideration that the Court has identified in cases like Payne v. Tennessee.
04-163 +++$+++ 20829 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose -- suppose a person has a piece of property, and they zone it suddenly, no building -- no building -- which destroys the value of the property pretty much. Now, should we just -- I think those might be the cases where this language began to appear, something like that. Should that be just a simple rational basis review too? Because I'm trying to put the case where it might be -- arguably you should have something stronger since the property value is -- is seriously hurt and --
04-163 +++$+++ 20830 +++$+++ TRUE +++$+++ MR. BENNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, if -- if the claim was that the legislation was irrational, that it --
04-163 +++$+++ 20831 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. They're going to say, well, we can imagine a reason, but if you look at it realistically, you know there's no good reason.
04-163 +++$+++ 20832 +++$+++ TRUE +++$+++ MR. BENNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No --
04-163 +++$+++ 20833 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, if you put your mind to it, you can make one up, which is sort of the test for rational basis in the economic context. But as soon as we become more realistic, there isn't much of a reason. It can't satisfy the stronger test, though it could satisfy the weaker.
04-163 +++$+++ 20834 +++$+++ TRUE +++$+++ MR. BENNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. We would suggest that this Court's jurisprudence indicates that that type of a claim of a taking ought to be analyzed under the Penn Central test where you first do look at the extent of the economic devaluation, if you will, of the property and you look at whether there is an interference with reasonable investment-backed expectations --
04-163 +++$+++ 20835 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What are we supposed to do, to return to Justice Scalia's question, with the fact that this appears -- I counted about 12 cases, I mean, where it implicitly or explicitly appears, something like it. Are we supposed to just, oh, say all those cases were wrong and -- what are we supposed to do about that?
04-163 +++$+++ 20836 +++$+++ TRUE +++$+++ MR. BENNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we would suggest, Your Honor, that what the Court does is say that -- that in Agins, what the Court was essentially doing was restating a due process test, and either say --
04-163 +++$+++ 20837 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you speak up a little?
04-163 +++$+++ 20838 +++$+++ TRUE +++$+++ MR. BENNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, Your Honor. We would -- we would say that the Court ought to say that in Agins the Court was restating a due process test, and if this is to be a standalone test, it ought to be part of due process. But if it finds a home in the Just Compensation Clause, it ought to find a home in the -- in the public use portion of the Just Compensation Clause where if, indeed, the economic impact in a regulatory takings context is so severe that it constitutes a taking, then whether it rationally advances a State goal ought to be -- ought to inform the question of whether or not it's a public use, but that it shouldn't be a standalone test for really sitting as a super-legislature to determine whether or not this really advances the government's goals as opposed to whether it could rationally have advanced the --
04-163 +++$+++ 20839 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why would you feel --
04-163 +++$+++ 20840 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you want us to put --
04-163 +++$+++ 20841 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why would you feel better about our doing that in order to determine whether -- whether there's a public use than you would feel our doing it in order to decide whether there's been a taking?
04-163 +++$+++ 20842 +++$+++ TRUE +++$+++ MR. BENNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-163 +++$+++ 20843 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, wouldn't all of your -- all of your objections apply equally?
04-163 +++$+++ 20844 +++$+++ TRUE +++$+++ MR. BENNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly if it were more than rational basis. So we're -- we're suggesting that it oughtn't, wherever it's put, be more than a rational basis test.
04-163 +++$+++ 20845 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're -- you're not really urging us to -- to defer the -- the evil day and simply say, well, this test, which is more than rational basis, may well apply to -- to whether there's been a -- a public use or not, but it certainly doesn't apply to whether there's been a taking.
04-163 +++$+++ 20846 +++$+++ TRUE +++$+++ MR. BENNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, absolutely not. It shouldn't -- it shouldn't --
04-163 +++$+++ 20847 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I hope you won't do that.
04-163 +++$+++ 20848 +++$+++ TRUE +++$+++ MR. BENNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- it shouldn't apply to -- to either one, and wherever this -- if the Court wants to say that this language needs to find a home somewhere and it isn't in due process, then it shouldn't be more than a rational basis test wherever it's put. In many ways, Your Honor, this statute, Act 257 of the Hawaii legislature, is -- is almost identical, although less intrusive, than the statute that this Court upheld in Exxon v. Maryland. The goal of the statute in both cases was the same. It was to preserve competition in the retail market, and in Hawaii, where we have at the refinery level a duopoly and at the wholesale level an oligopoly, it certainly was rational for the legislature to believe that trying to prevent the -- the oligopolist from projecting their market share into the retail level would have the effect of preserving competition. And it was certainly rational for the -- the legislature to believe that limiting the rents that oil companies could charge their independent service stations so that they couldn't charge excessive or predatory rents would serve the goal of preserving competition in the retail market in a State where the oil -- where the gasoline prices at the pump are the highest in the country and the -- the market at the two levels above the retail level is extraordinarily concentrated. This Court, indeed, has said --
04-163 +++$+++ 20849 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, suppose it were clear, from what the legislature said, that the only purpose of this legislation was to help out some local dealers who were politically powerful and the gasoline prices would go up. I assume you would be here defending the statute.
04-163 +++$+++ 20850 +++$+++ TRUE +++$+++ MR. BENNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, what we would say is that this Court's jurisprudence is that in applying a rational basis test, one doesn't look at what the legislature said was the purpose of the statute, but one looks at what could be advanced as a purpose for the statute and --
04-163 +++$+++ 20851 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you would be here defending the statute on -- in my hypothetical case.
04-163 +++$+++ 20852 +++$+++ TRUE +++$+++ MR. BENNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, and we would -- we would be, I imagine, positing additional reasons why the statute would pass a rational basis test than those actually reflected in the legislative history because I think, as this Court has indicated a number of times, that requiring the legislature to state reasons or, indeed, looking at the precise reasons stated by the legislature in deciding whether the statute furthers those goals as opposed to other goals the legislature might have had, simply sets this Court up as a -- as I said, a super-legislature, and -- and really opens the door to the type of intrusive review of legislative acts that this Court has not engaged in for more than 70 years. The number of cases that the Court has looked at in which it has indicated that it is not going to get into the business of determining efficacy or wisdom is, indeed, legion, and really since the New State Ice era, the Lochner era, this Court has not engaged in that type of review. And in fact, in Lochner itself, the -- the Court stated that we do not believe in the soundness of the views which uphold this law, and one can take that and look at the Ninth Circuit opinion in this case in which the Ninth Circuit does essentially the same thing. Your Honor, in our representative democracy, decisions as to the wisdom of economic legislation are for the political branches, not the courts. The voters of Hawaii have a remedy if their elected officials fail them. It is in that forum that the wisdom of Act 257 should be debated. Justice O'Connor, I'd ask to reserve the remainder of my time.
04-163 +++$+++ 20853 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Very well, General Bennett. We'll hear next from Mr. Kneedler.
04-163 +++$+++ 20855 +++$+++ FALSE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice O'Connor, and may it please the Court: The reasons why this Court has applied the rational basis standard to review economic legislation of the sort involved here go to the heart of the role of courts in our democratic society. Legislatures, not courts, are elected to enact the laws, and courts, therefore, do not substitute their judgment for the economic wisdom of legislation for that of the legislature. And courts typically lack the fact-finding ability and expertise of legislatures, especially to make the sort of predictive judgments that the Ninth Circuit relied upon in this case. These fundamental principles about the role of courts in our society would be greatly undermined if a plaintiff could simply -- could obtain heightened scrutiny of legislation by simply recasting his claim as a takings claim. And therefore, it's not surprising that this notion doesn't find support in the Just Compensation Clause. When the government affirmatively exercises the power of eminent domain to take property, the requirement that compensation be paid doesn't rest on the proposition that the legislation is ineffective. To the contrary, the taking presupposes that the -- that the action will -- will further a legitimate governmental purpose or at least that the legislature could have rationally so concluded. Any inquiry into the legitimacy of the governmental purpose or whether it will be served, instead, arises under the Public Use Clause, not whether there is a taking. And if those purposes are not served or the legislature could not rationally so conclude, it is not a public use and it's invalid and it should be enjoined, the consequences not to trigger the payment of -- of compensation. And the -- the same analytical approach applies for regulatory takings. In deciding whether there is a regulatory taking, this Court has developed tests to look to see whether the nature of the government's restrictions are essentially the functional equivalent of the exercise of the power of eminent domain or appropriation. And that -- that the Court has done by looking principally at the impact on the property owner, not the rationality of what the legislature has done. That has not been part of it. For example, in the Lucas case, the -- the test for finding a taking is whether all economic value has been destroyed. Or in the physical appropriation cases, the Court has said that's such a fundamental interference burden on the landowner that there is a per se taking. And similarly under the Penn Central test, the central inquiry is on the economic impact and the interference with investment-backed expectations, things that look to the impact on the -- on the landowner.
04-163 +++$+++ 20856 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Kneedler --
04-163 +++$+++ 20857 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if you're going to use the public use prong of the -- of the -- the Constitution for what we think are regulatory takings, then what happens is you just invalidate the regulation. You don't pay compensation.
04-163 +++$+++ 20858 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's -- that's correct, although I -- although I should say --
04-163 +++$+++ 20859 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because if it's not a public use, then you can't --
04-163 +++$+++ 20860 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. No. That -- that's correct. And I think that's -- that's the difference. If something doesn't -- if the legislature couldn't rationally conclude that -- that the measure will -- will serve a legitimate governmental purpose, it's invalid and -- and therefore not a taking. It's improper governmental action.
04-163 +++$+++ 20861 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about substantially advances a legitimate State interest, which does sound like it's a higher standard? And it has been said, as was pointed out, in several cases of this Court -- not that it made any difference to the bottom line, but that language is -- sounds -- sounds like it's a more toothful standard than rational basis.
04-163 +++$+++ 20862 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in -- in fact, the point you made that it has not actually affected the outcome I think is an important consideration for this Court. And -- and now that the Court is focusing on the question of whether this really does logically fit into the Just Compensation Clause jurisprudence, I -- I think it -- I think it's important to consider that the Court has not actually ever struck down a measure under the Just Compensation Clause outside the exactions situation which present the different consequence of -- of a physical appropriation. The Court has not ever actually struck down a statute on -- on that basis. But with respect to that language, it -- it arose in Agins. There was a little bit of discussion along those lines in Penn Central, but in Agins, which most people see as -- as the origin of it, the Court, as was pointed out, relied upon Village of Euclid and upon Nectow, both of which were due process cases and both of which applied a rational basis test. And in fact, on pages 24 and 25 of our brief, we set out the quotations from Nectow and Euclid which show that the Court -- the Court there was using the notion of whether the measure will -- will further a substantial or has a substantial relation to the public health, really in contradistinction to something that is irrational.
04-163 +++$+++ 20863 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about Moore?
04-163 +++$+++ 20864 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Excuse me?
04-163 +++$+++ 20865 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about Moore?
04-163 +++$+++ 20866 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Moore?
04-163 +++$+++ 20867 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, City of East Cleveland where they had the grandmother and the -- the --
04-163 +++$+++ 20868 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Well, cases -- cases involving the -- the family unit I think -- I mean, those are -- those go beyond simply the question of the -- of regulating property. Those -- those get into -- those get into questions of -- of who's occupying -- who's occupying the house. But -- but in Village of Belle Terre, the -- the Court applied a rational basis test to the --
04-163 +++$+++ 20869 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so we might still keep a -- a stronger test where a zoning ordinance affects the number of people that could live in a house or --
04-163 +++$+++ 20870 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, not the number -- not the number of people.
04-163 +++$+++ 20871 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or who could live in the house.
04-163 +++$+++ 20872 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That case concerned --
04-163 +++$+++ 20873 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Grandparents --
04-163 +++$+++ 20874 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a family, the -- the question of interfering -- possible interference with a family unit. But in Village of Belle Terre, the Court applied a -- a rational basis test to a zoning ordinance that regulated unrelated people living in -- living in the same house. So the phrase, substantially advance, while it may have that ring to it, in fact its origins, when you look at page 25 of our brief, the -- the Court in Nectow explained the test as being a -- a court may not set aside the determination of public officers unless it's clear that it has no foundation in reason and is a mere arbitrary or irrational exercise, having no substantial relation to the public health. The Court was --
04-163 +++$+++ 20875 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, they don't sound like synonyms. So I'm asking you what you would recommend that this Court do. If you say that the standard is the same as rational basis, perhaps this confusing phrase should be eliminated.
04-163 +++$+++ 20876 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. I'm sorry. I misunderstood, if that was the question. We think it definitely should be eliminated, and the -- and the Court should say that it is applying the rational basis test. And I think it's instructive in the -- in the post-Agins era to look at the Keystone decision, both the dissent and the majority in that case. It was -- the Court was essentially unanimous that the -- that the taking provision of a clause does not authorize an inquiry into the efficacy of legislation. And in fact, on that point, the dissent quoted this Court's decision in Midkiff.
04-163 +++$+++ 20877 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course, when you have a physical invasion of property and a inverse condemnation is tantamount to a physical invasion, then we've built up some doctrine in order to protect the concept of physical invasion so that that can't be avoided. Perhaps that's not applicable to a -- to an economic regulation.
04-163 +++$+++ 20878 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- yes, this -- this --
04-163 +++$+++ 20879 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Even though this is a leasehold interest. I -- I understand that.
04-163 +++$+++ 20880 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the Court applied a rational basis test in Pennell under the Due Process Clause and it would be odd to apply a -- a higher test. I mean, it would be a different question if there was a claim of -- of confiscation of the property, but Chevron has stipulated that it could not make out a taking claim on the basis of -- of its economic impact. So we're talking about a standalone inquiry into the efficacy of the legislation.
04-163 +++$+++ 20881 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, Mr. Kneedler, simply giving -- giving the phrase, substantially advance, the -- the more modest meaning that you argue for doesn't solve the problem. The -- the statement in Agins would still be incorrect. Agins says that the application of a general zoning law to a particular property effects a taking if the ordinance does not substantially advance legitimate State interests.
04-163 +++$+++ 20882 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Now I -- and that was the point --
04-163 +++$+++ 20883 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, so we have to eat crow no matter what we do. Right? (Laughter.)
04-163 +++$+++ 20884 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So why -- why go through all the trouble of, you know, redefining substantially affects?
04-163 +++$+++ 20885 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. No. I -- I didn't mean to say that -- that it should --
04-163 +++$+++ 20886 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-163 +++$+++ 20887 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- be a rational basis test and therefore the Court would conclude it was a taking. In -- in the regulatory area, if the court -- if a taking is not made out on the basis of economic impact under -- under Penn Central or one of those tests, there's no taking. You don't get to the public use requirement then because that only kicks in if there is a taking. So it's the due process rational basis test that -- that would apply. And -- and as I said, I think Keystone, with -- with respect to applying a rational basis test on the efficacy question is -- is dispositive on that -- on that question. Now, the -- the Court did say you can look at the character of the governmental action, what -- what the government is doing as part of the Penn Central test, but not this sort of means-end efficacy question. And we do think it would be appropriate for the Court to jettison that. I would point out that throughout the course of history, the Court has sometimes used takings and due process kind of interchangeably. And we -- we quote, for example, the -- this Court's Rowan decision which refers to the plaintiff's constitutional claim as saying that the regulatory action violates the Fifth Amendment because it constitutes a taking without due process of law. I think sometimes the Court has used or parties have used those terms interchangeably, and that may well be what the Court was doing in Agins. And I think if you look at Penn Central where that phraseology was -- was used, the same is true where the Court was -- was relying upon the due process part of Goldblatt, and the Court put the word taking in -- in quotes, I think perhaps indicating that it was not looking at a literal taking.
04-163 +++$+++ 20888 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Kneedler. Mr. Stewart.
04-163 +++$+++ 20890 +++$+++ FALSE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice O'Connor, may it please the Court: The issue in this case is the content of this Court's regulatory takings doctrine and, in particular, whether that doctrine includes the inquiries called for by the substantially advances test, which this Court articulated in Agins, but which is grounded in principles the Court has long recognized both before and after Agins.
04-163 +++$+++ 20891 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it a regulatory taking in your view because the substantially advances test is not met, or is a regulatory taking and then I ask if it substantially advances?
04-163 +++$+++ 20892 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The --
04-163 +++$+++ 20893 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How do I know that this is a regulatory taking, in other words?
04-163 +++$+++ 20894 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's a -- it's a regulatory taking because the government has not physically appropriated the property or condemned it. Instead, by operation of its regulation, it has taken the property interest from Chevron. It's like --
04-163 +++$+++ 20895 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but that -- that means if it's a taking at all, it's got to be a regulatory taking. But Justice Kennedy's question is what is the test for determining whether it is a taking.
04-163 +++$+++ 20896 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I believe that question, Your Honor, is answered by Pennsylvania Coal where the Court found that the fact that the statute at issue there prevented Pennsylvania Coal from mining a certain amount of the coal that was in the ground that it was otherwise entitled -- be entitled to mine -- took that property just as assuredly as a condemnation of it would. And then the Court said, but the seemingly absolute protection of the Just Compensation Clause in the context of a -- of a regulation that affects that kind of appropriation, as opposed to an outright condemnation of it, that that protection is subject to an implied limitation that exists to allow the government to serve its purposes, as Pennsylvania Coal described it, if the government could hardly function at all, if it were required to pay for every interference with property rights occasioned by its regulation. So what we have growing out of Pennsylvania Coal is a -- a rationale for allowing the government to interfere with private property rights that would otherwise be protected and otherwise could not be taken without compensation in order that the government may serve its legitimate purposes.
04-163 +++$+++ 20897 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And then the question, of course, is let's imagine you're either right or you're wrong as to its being a regulatory taking. And maybe if it's -- they have no reason for it at all, they can't do it. Period. And if they have some reason for it, even a sort of bad one, they can do it. But if that's the context -- we're in the game where they can do it -- why should it matter, in respect to paying compensation, whether their reason is quite a good one or just barely good enough? And that's -- that's the puzzle, I think, that the other side is putting to you, and I must say I'm rather moved by their argument because it seems to me whether it's a very good reason or just a barely adequate reason has nothing to do with whether they should pay compensation.
04-163 +++$+++ 20898 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it goes to the difference, Your Honor, between the public use standard and the -- which governs in a situation in which the government is paying compensation. And in that standard, as we've been discussing today, in that context, the Court has applied a very deferential standard because the -- the burden on property rights is lesser and the -- the impediment --
04-163 +++$+++ 20899 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the burden on --
04-163 +++$+++ 20900 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to governmental action is greater.
04-163 +++$+++ 20901 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Maybe I'm not -- I thought -- are we in the world in which you agree the government can do it even though their reason -- or is your basic argument, no, they can't do this at all? In which case it's not a compensation question. It's a question of whether the Constitution of the United States forbids them from doing it. Period.
04-163 +++$+++ 20902 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We -- we believe, Your Honor, that it is a compensation issue.
04-163 +++$+++ 20903 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's a compensation issue.
04-163 +++$+++ 20904 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you want money? You want a money judgment? I thought you wanted them to stop it.
04-163 +++$+++ 20905 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We wanted a declaration from the court that the -- that they cannot proceed with a statute that takes our rents without paying -- paying for us. What's happened here is that this legislature has enacted --
04-163 +++$+++ 20906 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but isn't -- I thought your premise was that because the statute doesn't authorize any payment, that is a way of stopping it.
04-163 +++$+++ 20907 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. The statute does not authorize payment.
04-163 +++$+++ 20908 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So if -- if Hawaii modifies its statute and says, we will give to you the difference between, you know, whatever the rent we -- if we can figure it out -- whatever the rent would be and -- and what our statute requires, you'd be perfectly happy.
04-163 +++$+++ 20909 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-163 +++$+++ 20910 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-163 +++$+++ 20911 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What we are arguing about here is compensation, and the standard that we --
04-163 +++$+++ 20912 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it would seem that you're arguing about whether this amounts to a taking --
04-163 +++$+++ 20913 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-163 +++$+++ 20914 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- at all. And you have to look at how severely the State law burdens the property rights. Don't you?
04-163 +++$+++ 20915 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the -- in Lucas, this Court found that a -- a complete deprivation of the economic value of property constitutes a categorical taking. But the Court has not held -- it did not hold in Lucas and it has not otherwise held -- that a regulation that affects less than a complete destruction of economic value is categorically not a taking. The point of the Court's regulatory takings doctrine and the inquiries that it mandates is to determine those circumstances in which a deprivation that is less than a complete destruction of economic value require compensation.
04-163 +++$+++ 20916 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the -- let me go back to my question because I haven't heard the answer. And I'm in a world, imaginative if you like, where Hawaii passes this statute, and what we're interested in is not whether they can do it, but whether they have to pay compensation. And my question is, what in heaven's name has the goodness or badness of their reason to do with that question? After all, I can imagine instances in which their reason for the regulation is pretty bad. It just barely survives, and they shouldn't have to pay. And I can imagine cases where their reason is wonderful and they should have to pay or maybe they shouldn't. It's neither a necessary nor a sufficient condition. It has nothing to do with whether you should have to pay. Now, that's their argument I think, or at least as I understand it, and I want you to explain to me why the goodness or badness of the reason, once it has passed the minimal point, has anything to do with whether you should have to pay compensation.
04-163 +++$+++ 20917 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And my answer to that, Your Honor, is that it goes -- it stems from the rationale expressed in Pennsylvania Coal for allowing the government to interfere with private property --
04-163 +++$+++ 20918 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Holmes said, though he didn't hold that -- what he said was you have to pay when the regulation, a legitimate regulation, goes too far. So I will repeat. Why does the goodness or badness of the reason, past the minimal point, have anything to do with whether a regulation goes too far?
04-163 +++$+++ 20919 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, part of the question whether the regulation goes too far is whether there is a basis for imposing the burden on a particular property right. Here we have --
04-163 +++$+++ 20920 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, and in that respect, Holmes did not use the word legitimate. He said just when the regulation goes too far, and if it's illegitimate, that tends to show -- I suppose the jurisprudence is -- that this is not an accepted form of regulation in the usual course and therefore unnecessary. I take it that's your argument.
04-163 +++$+++ 20921 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think, Your Honor, that the -- growing out of Pennsylvania Coal, the Court has recognized that one of the critical factors, if not the most critical factor, in regulatory takings analysis is the character of the government's action and the nature of the government's interest. It's not simply a matter of how much property has been taken. The question is the government's basis for taking that property. When we -- what we have here, Justice Breyer, is a -- is a -- a right specifically protected by the Constitution. The Constitution provides that private property shall not be taken for public use without just compensation. And Justice Holmes in Pennsylvania Coal was -- said that that seemingly absolute protection is qualified, and the --
04-163 +++$+++ 20922 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But he -- he didn't go into this question. Let me give you an example that will make it clear. Let's take a case where there's the best reason in the world, fabulous reason. We're taking this property to build a highway, which is absolutely necessary. Would you suggest that compensation doesn't have to be paid?
04-163 +++$+++ 20923 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Compensation, of course, has to be paid.
04-163 +++$+++ 20924 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, it does. Now, let me suggest the other side of the coin, a really terrible reason. You cannot build your house without using metal pipes. That's our building reg in this State. Now, everybody knows -- I'm imagining anyway -- plastic pipes are just as good, but not quite, so they have a barely adequate reason. Do you think that they have to pay compensation to have a general building code saying you can't use plastic pipes?
04-163 +++$+++ 20925 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I -- to me there's a threshold question of whether a general building regulation of that type really would be a -- a regulation that would implicate the Takings Clause at all.
04-163 +++$+++ 20926 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it is an -- it does regulate the use of your property and it means added cost, in fact, several thousand dollars added cost, to the building of a house, and come up here and argue we agree there's a rational reason, but it isn't so you can do it, but it isn't a really good reason, not substantial. Now, do you think that has anything to do with paying compensation?
04-163 +++$+++ 20927 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, I do. And because the -- the -- assuming -- on the assumption that this is really a -- a burden on property rights that would be subject to the Takings Clause, then that burden requires compensation unless there's some limitation on the compensation principle. And the limitation that the Court has recognized, growing out of Pennsylvania Coal, is the need for the government to function. So we have an inquiry into whether this furthers the governmental purposes. Now, in your example, Your Honor, I don't think there's any question that that inquiry would be satisfied. Our point is simply that the inquiry must be made.
04-163 +++$+++ 20928 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Stewart, I'm trying to understand not your theory but its concrete applications. Here we're dealing with the rent to be paid by a lessee of a gas station, but what you're saying, I take it, would go for any kind of rent control. You could make the same argument. So you're -- so you are saying that rent control is a taking and the State could do it with compensation?
04-163 +++$+++ 20929 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, and --
04-163 +++$+++ 20930 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and the measure of compensation would be? How would the State -- let's take a -- an ordinary rental property, and the city puts a rent control ordinance into effect. You say that's a taking, and how would one measure the compensation?
04-163 +++$+++ 20931 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The compensation would be measured as the difference between the -- the rent that was allowed under the regulation or the statute and the rent that the -- that the landlord, the lessor, would otherwise be entitled to collect in the marketplace.
04-163 +++$+++ 20932 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I didn't understand you as saying that all rent control constitutes a taking. I thought it is only unintelligent rent control that constitutes a taking. (Laughter.)
04-163 +++$+++ 20933 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or do you not think that any rent control is intelligent?
04-163 +++$+++ 20934 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, that is not our position, Your Honor. The -- the -- and in fact, the -- the State has specifically disclaimed any contention that -- that this is like the typical residential rent control. So --
04-163 +++$+++ 20935 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm asking for not the State's position but your position.
04-163 +++$+++ 20936 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And our --
04-163 +++$+++ 20937 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And let's -- let's assume that there's no better reason for the rent control for the building, residential building, than there is for the rent control on the lease for the gas station.
04-163 +++$+++ 20938 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, our -- the question would be, under our analysis, is not the validity of the -- of the ends, of the legislative ends. That would be taken care of in the inquiry under public use. So -- so the -- so the question of the legitimacy of the government's interest in controlling rent would not be at issue. What would be at issue under our test is the connection between the -- the rent control, the burden on private -- private property rights that's imposed and the nature of the asserted interests and the degree to which that burden furthers that interest. Now, in the typical residential rent control circumstance, where the purpose of the statute -- where -- where the -- where the legislature is concerned about the -- the price, the rent -- the rental amount that residents are having to pay, in that circumstance, the test that we're proposing would be easily met because the purpose of the statute would be to grant rent relief to the -- to the tenants. And that --
04-163 +++$+++ 20939 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And on your theory it would easily be met no matter how severe the control. I -- I take it on your theory, if -- if the -- if the rent control ordinance said, $5 an apartment, that's the top rent, fine with you because it's extraordinarily efficient in relieving poor renters from the -- from the burden of -- of high rents.
04-163 +++$+++ 20940 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think our --
04-163 +++$+++ 20941 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That can't be the test.
04-163 +++$+++ 20942 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think our position, Your Honor, is that there are -- this -- this is a threshold inquiry, the -- the hypothetical --
04-163 +++$+++ 20943 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but it would -- in any case it would pass the threshold inquiry on your test. You would say, boy, it doesn't get any more efficient than this until it gets to zero.
04-163 +++$+++ 20944 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that it would pass the inquiry. I suppose you could -- you could --
04-163 +++$+++ 20945 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you would say at the threshold level, there's no taking.
04-163 +++$+++ 20946 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-163 +++$+++ 20947 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what would you then do? Go on to Penn Central?
04-163 +++$+++ 20948 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-163 +++$+++ 20949 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-163 +++$+++ 20950 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You would have an inquiry into whether there is a categorical taking under Lucas because it deprived essentially all economic value of the property and you would inquire under Penn Central whether -- because the threshold inquiry into the nature of the government's interest is satisfied, you then inquire into whether the burden is such in light of the purposes to be served that we believe it goes too far --
04-163 +++$+++ 20951 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. But if -- if the test is going to be as unhelpful as it would be in my extreme hypothetical, why have the test at all? Because in the more difficult case where it's not $5 an apartment, but a case like this in which the justification is ultimately a justification in gasoline prices and so on, the -- the inquiry is going to be much more complex. Penn Central is a way of approaching that complexity. Why do we bother with this threshold test which produces a bizarre result in one case and is going to be very difficult to apply in another case, in which event I don't see the reason for having it as distinct from the Penn Central difficulty test. What's -- what's its value?
04-163 +++$+++ 20952 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean -- part of my answer to that, Your Honor, is that this test, in our view, does have very narrow application, which is the reason why we don't believe that the State is correct in suggesting that it will result in the invalidation of all kinds of economic regulation. Having said that, though, I do believe that it is an important threshold requirement that should be met, and if the government has not identified a basis for singling out a given property right and imposing on that the burden of a regulation and if it has not demonstrated that the burden it is imposing is related in a -- in a -- in advancing the purpose for which the burden is being imposed, then in that circumstance, the -- the rationale for imposing that burden without compensation, in contravention of the compensation requirement in the Fifth Amendment, is missing.
04-163 +++$+++ 20953 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But isn't the sensible response to the situation you posit that the government shouldn't be doing it? I mean, it's a little crazy to say the Government is acting crazy. Therefore it -- it ought to contribute money so the net economic effect is somehow zero. There's simply a transfer. The taxpayers bear a burden as -- as opposed to somebody else. On the -- on the justification you're giving for the test, you would say, look, if it's not substantially advancing this interest, why let the government do it at all? I'm not saying that should be the test for whether the government should do it at all. But isn't that kind of the sensible tendency of the test, to suggest that the government shouldn't even be doing it?
04-163 +++$+++ 20954 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I -- the distinction we're relying upon there, Your Honor, is -- is the question whether the government can proceed with compensation as distinct from proceeding without compensation. When the government proceeds with compensation -- it's going to pay for the private property rights, the constitutionally protected private property rights, with which it's interfering -- then we demand a lesser showing. But when there is a constitutional right at stake, the -- the showing should be higher. We're not asking whether the government can proceed at all. We're simply asking whether the government can proceed without compensation. And the without compensation is what triggers and infringes upon the very rights that are protected by the Just Compensation Clause.
04-163 +++$+++ 20955 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I must say I agree with Justice Souter. It seems to me if you say -- you're saying it doesn't make sense, so you got to pay for it. I think it -- it's much more reasonable to say it doesn't make sense, so you can't do it. Why isn't the latter the -- the intelligent reaction?
04-163 +++$+++ 20956 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I -- the -- the question of whether it makes sense turns upon the standard of review that the Court is going to apply to answer that question. And when we are --
04-163 +++$+++ 20957 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. The -- I mean, it seems to me that the -- the whole point of the argument you're making is it won't hurt me, the landowner, quite so much, but if it doesn't make sense at all, why should we even have to get to that question? Why isn't the more sensible thing to say to the government, stop doing it?
04-163 +++$+++ 20958 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because of the -- the -- the difference in the relative interests at stake when we're talking about proceeding with compensation as against without compensation. In -- in the -- it's similar to the other protections extended under the Bill of Rights. The Court has indicated that the Just Compensation Clause is just as much a part of the Bill of Rights as any of the other protections of the Bill of Rights. And there are circumstances in which the government may proceed. There would be a rational basis for it to proceed under a very deferential standard that would be applied under the Due Process Clause, but the Court, nonetheless, requires a higher showing because of the intrusion on constitutionally protected rights.
04-163 +++$+++ 20959 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But isn't the effect of what you're arguing that you can't do it? Because you -- the government would have to pay the same amount that -- by the -- that the rent is being reduced. We'd have to figure out how much higher the rent would have been, and -- so it -- it would be a -- a nonsensical thing for the government to engage in.
04-163 +++$+++ 20960 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the State's position in this case is that by preserving a network of lessee dealers, there will be benefits to the public in terms of lower gasoline prices. And I think their -- their theory is that those benefits would far outweigh the -- the modest decrease in rent, lost rent to the oil companies. And so that it -- it would make sense if the government wished to make that choice and -- and to pay compensation, if the government's theory were correct. And one of the values of the Just Compensation Clause and the constitutional rights that it protects is that it forces that choice to be made. It -- it puts the decision on budget as opposed to off budget.
04-163 +++$+++ 20961 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why wouldn't it make sense then for the government to say, Chevron, you charge what you want and, station owner, we, the government, gives you -- Hawaii gives you this money so you'll be able to pay the excess rent?
04-163 +++$+++ 20962 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In fact, we believe that is -- is, in essence, what is occurring here. There -- there is no claim that the rents that Chevron or the other oil companies were charging are excessive or that they have been the cause of any problem in the State of Hawaii that Hawaii is trying to address.
04-163 +++$+++ 20963 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Explain it -- explain your theory in terms of the example. That is, imagine that the benefits of the network of dealers of gasoline into the community are fabulous and obvious. So there's a great reason for doing this. Now, why is it that, on your theory, the government shouldn't have to pay compensation then, but it should have to pay compensation just because the benefits are not obvious, that they're bizarre, that they don't -- may not really exist? That's -- you see why I'm having a problem?
04-163 +++$+++ 20964 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me see if I can get to it better, Your Honor. One reading of the Takings Clause, the Just Compensation Clause, would be that the government should pay compensation in those circumstances where it is depriving property owners of protected property rights. But in Pennsylvania Coal, the Court said in the regulatory takings area, because of the need for the government to function, we are going to allow the government in certain circumstances to -- to interfere with rights without paying for them. And the inquiry that we're saying the Court should make is whether that need exists and whether the burden being imposed serves that need. And -- and again, I'd like to emphasize that this should not be considered an unfamiliar concept in constitutional law. This Court has consistently recognized that when the government seeks to intrude on protected -- rights protected by explicit provisions in the Constitution, on the basis that its needs, its legitimate interests require that intrusion, then the court's role to enforce the constitutional protections is to make that inquiry into whether the need is -- is being actually served. Now, I'd like to at -- at this point emphasize that our position is not that no deference may be given to legislative judgments under this test. Our position is simply that it must be more than a mere rational basis test. The reason why the Court, in repudiating the Lochner-era cases, has held that mere rationality is enough to satisfy the constitutional standard is that there was no specific constitutional prohibition. In the -- and -- and the Court specifically distinguished those circumstances in which there is a constitutional right --
04-163 +++$+++ 20965 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there are so many things that you could dress up as being a taking. And -- and so it seems to me that it's up to the artful pleader to say whether this is a due process excessive regulation or this is intrusive to the point where it amounts to a taking. I mean, the -- the -- would you -- rent control is one. What about -- suppose Hawaii had said, we're going to cap the price of gas so it will make it easier for these stations to survive.
04-163 +++$+++ 20966 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think, Your Honor, that most courts have recognized, although I don't know that it's settled, that a -- a control on the price of a product that -- that a business has produced would implicate the Takings Clause. And -- and in that circumstance, the substantially advances test almost certainly would be met, and our --
04-163 +++$+++ 20967 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do we have a case involving price control where we have analyzed that as a taking?
04-163 +++$+++ 20968 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. The Florida Power case v. the FCC where there was a regulation on the prices that telecommunications companies could charge for access to their poles. Back in the war era, there was cases involving rent control where the Court found that the rent control was justified because there was a market distortion caused by the extraordinary imbalance in --
04-163 +++$+++ 20969 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I didn't know that those were treated as taking cases.
04-163 +++$+++ 20970 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe they were, Your Honor, and that they have been -- that this Court has discussed them in those terms. But I would like to, if I could, address the broader point that I believe Your Honor was -- was making, which is can these claims just simply be repackaged and -- and sweep into the takings analysis all of the regulation and apply to it the very same test that the Court has repudiated in Lochner. And the answer to that I believe is clearly no. The -- the Just Compensation Clause is limited to rights of private property, would not extend -- and I don't believe there's anything in this Court's precedents that would require it that it extend to the kinds of laws, minimum wage laws, wage and hour provisions, regulations on the size of bread loaves, that were the professional licensing requirements that were the subject of the Lochner-era cases. And the Due Process Clause extends even to expectancy interests or -- or reliance interests on governmental benefit programs. Nothing in our position here would -- would apply to that because those, we don't believe, have ever been held and -- and should not be held to be covered within the specific provision of the Just Compensation Clause. Your Honors, in Nollan and Dolan and First English, this Court recognized that the Just Compensation Clause is not a poor relation among the provisions of the Bill of Rights. In First English, the Court recognized that the constitutional provisions by their very nature limit the freedom and flexibility of the government in order to protect constitutional rights. And the Court in First English said that the Just Compensation Clause of the Fifth Amendment is one such provision. And our position here is that this constitutional right, that private property shall not be taken without just compensation, should be entitled to the same protection as the other constitutional protections in the Bill of Rights, and that just as with respect to those rights, when the government seeks to intrude on those interests, the court should properly inquire into the nature of that intrusion and the justification for that intrusion. Thank you.
04-163 +++$+++ 20971 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you. Attorney General Bennett, you have 7 minutes remaining.
04-163 +++$+++ 20973 +++$+++ FALSE +++$+++ MR. BENNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honors, this case is not about compensation. Indeed, Chevron's discussion of compensation -- the first time that that occurred in the entirety of this case was in its brief in this Court, as we point out, in particular, in footnote 6 at page 11 of our reply brief. This case is, indeed, about whether this economic regulation is legitimate. The Ninth Circuit's test was it doesn't work well enough, so it is illegitimate. That type of a test belongs under the Due Process Clause, not under the Just Compensation Clause. This Court has time and time again said that it is not going to set up separate per se tests except in very limited circumstances and, indeed, it's not going to divide parcels in the way Chevron suggests here and whether it's in Tahoe-Sierra or Penn Central or Keystone, the Court has said, absent taking all value or use of the property or in Loretto, in the case of a physical invasion, it is going to allow these types of regulatory takings tests to be judged under Penn Central. What Chevron is arguing for here is a separate test outside of Penn Central, divorced from economic impact, that concerns solely the legitimacy of the regulation. We suggest that that belongs in due process. We believe that what the Court should do is say that what was stated in Agins does not state a standalone test. Tests for judging the legitimacy of a regulation belong in due process based upon a rational basis test and that other than the very limited per se categories that this Court has established, regulatory takings claims depend on economic impact and belong under the Penn Central analysis. Thank you.
04-163 +++$+++ 20974 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The case is submitted.
04-169 +++$+++ 20978 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Graham County Soil & Water Conservation District v. the United States. Mr. Browning.
04-169 +++$+++ 20980 +++$+++ FALSE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The issue in this case is whether Congress expressly provided for a limitations period for retaliatory discharge action under the Federal False Claims Act. The 6-year limitation period set out in section 3731(b) of the act is tied to a violation of section 3729, that is, the submission of a fraudulent claim to the Government. The triggering event to start the statute of limitations running under section 3731(b) is a violation of section 3729. Because a violation of section 3729 is not an element of the cause of action for retaliatory discharge, Congress did not intend to provide a limitations period in section 3731(b) for a retaliatory discharge action. The Government in its amicus brief argues that Congress must have intended a uniform limitation period so that all three actions created by the False Claims Act could be brought in the same proceeding. The -- the Government's argument undermines the very purpose of the Federal False Claims Act and the retaliatory discharge provision. The retaliatory discharge provision, section 3730(h) of the False Claims Act, not only protects people who blow the whistle, the initial whistleblower, but it expressly protects people who testify at trial. And we have seen time and again in many of these cases the Government will keep a case under seal for 5, 6, 7 years. We've seen repeatedly situations, because of the complexity of the underlying violation of the false claim, that it might take a decade from when the complaint is filed to when the case actually is put before a jury.
04-169 +++$+++ 20981 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Browning, this argument that you're making, where you seem to be having great solicitude for the -- for the whistleblowers, for the people who might be retaliated against -- the respondent and the Solicitor General answer your argument by saying in all the years that 3730(h) retaliation claims have been available, there has been no instance of qui tam plaintiff barred because the retaliation occurred outside the 6-year limitation. Yes, one could hypothesize these cases, but are there any actual cases where the retaliation in fact fell outside the 6-year, dated from the submission of the false claim?
04-169 +++$+++ 20982 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, I cannot cite to a specific situation where that has occurred, and the Government, you're right, makes very much of the argument that this is simply hypothetical. But it is a very real and concrete problem when you have cases that go to trial, that it takes so long to go to trial, and those people who are testifying at trial have no protection because it's more than 6 years from the violation of section 3729. I -- I would --
04-169 +++$+++ 20983 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Maybe they don't get retaliated against if they testify at trial.
04-169 +++$+++ 20984 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-169 +++$+++ 20985 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And if the question is whether there is a problem out there in the real world on -- for people whose interest is certainly not identical to yours.
04-169 +++$+++ 20986 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I recognize that, but you have to look at the statute as a whole to construe it in its proper context. And there are many situations where there -- a number of years pass from -- from when the complaint is filed to when the testimony takes place at trial. And -- and as the amicus brief of the National Work Right Institute points out, an organization that's designed to protect the human rights of employees, an organization that's a spin-off of the American Civil Liberties Union, that organization clearly views the interpretation advocated by the respondents and adopted by the Fourth Circuit as detrimental by employees.
04-169 +++$+++ 20987 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. All that's true, but the question that I think Justice Ginsburg asked was you have on your side the whole National Defense Industrial Association. You have the Equal Employment Advisory Council that represents dozens and dozens, I take it, of businesses. We have your own client. We have you in the firm. Everybody. I imagine you all racked your brains to say has there ever been such an example, and I take the answer is no, never. Not all of you could even find one instance where this happened. Now, am I right? Because that's what I think unless you provide the example.
04-169 +++$+++ 20988 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I cannot cite a specific example. Justice Breyer, I would direct your attention to the case in the Eleventh Circuit, Childray v. UAPGA, in which 4-and-a-half years had passed between when the initial allegation of --
04-169 +++$+++ 20989 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay. So -- so what would be so unreasonable about a Member of Congress concluding the following? We want these things to end after 6 years, you know? And there's never been an example of this horrible that you think of, and so we are going to end them all after 6 years from the time the thing took place, the cheat took place. And that's it. And if there's some other problem of the kind you're worried about that comes up, we will worry about that later through amendment, tolling, et cetera. Why is that an -- we don't want 30-day statutes of limitations or 90-day statute of limitations. We want 6 years. That helps most people. And if there's an odd case that doesn't, we'll worry about it. What's the answer to that?
04-169 +++$+++ 20990 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, if Congress had said that, they certainly could have made that decision, but it would run completely contrary to almost 200 years of precedent from this Court that as a general rule, the limitations period does not begin to run before your cause of action even comes into existence.
04-169 +++$+++ 20991 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, that's true, it would be. And the reason we're doing it is because there's a period of time when somebody lies to the Government and we don't want actions that are related to that. We'll have to go into that proof to take place more than 6 years later. Now, that would be the reason, and I agree it would be contrary. But the difficulty for me is the language seems to point to that reason.
04-169 +++$+++ 20992 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-169 +++$+++ 20993 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And I can't find that reason idiotic.
04-169 +++$+++ 20994 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I -- I don't think the language points to that because the language of the limitations period, 3731(b), which is set out in the appendix to the cert petition at page 135a -- the language of the statute is a civil action under section 3730 may not be brought more than 6 years after the date of the violation of section 3729. There are two material aspects of -- of the statutory language: the violation of section 3729, which is not an element of the cause of action --
04-169 +++$+++ 20995 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I -- I don't mean to interrupt, but it is true that this is a civil action that's brought under 3730(h), is it not?
04-169 +++$+++ 20996 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the action is brought under 3730(h), and Justice Stevens --
04-169 +++$+++ 20997 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it is literally within the plain language of the statute.
04-169 +++$+++ 20998 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it is and it isn't. It is clearly in 3730(h), but when you look at the False Claims Act, Congress has used the phrase, an action under 3730, to mean different things in various portions throughout the False Claims Act. Congress has used that phrase on six different occasions, and I would particularly direct the Court's attention to 3731(c). In -- in that provision, Congress has provided that in an action brought under section 3730, the United States must prove the elements of the cause of action by a preponderance of the evidence. The respondent and the Government say you must have this literal reading of section -- the phrase, an action under 3730, and it means all three causes of action in 3731(b), but that -- but when you turn to 3731(c), that virtually identical phrase appears and you have to read that statutory provision in context, and read in context --
04-169 +++$+++ 20999 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It seems -- it seems if you read a provision like this, it says what the United States would be required to prove. Implicit in -- in that is in any action brought by the United States under 3730. I think -- think (c) is clearly talking about cases in which the United States is bringing the action.
04-169 +++$+++ 21000 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly, Justice Ginsburg. You have to read it in context, and I think when you read 3731(b) in context and that limitations period is tied to a violation of section 3729, it is clear that Congress did not intend the phrase, an action under 3730, to -- to include a retaliatory discharge action in which a violation of section --
04-169 +++$+++ 21001 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I don't think that's at all as clear as that (c) is directed to cases brought by the United States for the reason that Justice Breyer just explained. Congress might want to have one 6-year limitation and say, well, maybe there would be this hypothetical case that you're worried about, but for the most part, 6 years will take care of everybody.
04-169 +++$+++ 21002 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And, Justice Ginsburg, my point is just as section 3731(c) is not intended to cover all of the causes of action under the False Claims Act, 3731(b) is not intended to cover all of the actions under the False Claims Act as well, that it's only intended to cover the causes of action in which a violation of section 3729 is an element of the cause of action. The -- the Government makes the argument that you need a uniform limitations period so these actions can be tried together, but the Government ignores the fact that a qui tam action or an action brought by the Government is a completely different cause of action than an action for retaliatory discharge action. They involve different substantive claims.
04-169 +++$+++ 21003 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's true, but is it also not true that some of the people who get retaliated against may be the same people who bring the qui tam action?
04-169 +++$+++ 21004 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In some cases, that is -- is the case, Justice --
04-169 +++$+++ 21005 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So if they don't get the -- recover as being the victim of retaliation, they may still get a very handsome reward for what happened to them.
04-169 +++$+++ 21006 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is the case, but -- but I also want to point out that in many cases, the person who brings the qui tam action is a completely different plaintiff than the person who brings the retaliatory discharge action. The example of someone who is retaliated against for testifying at trial -- in that situation, it's clearly going to be a different plaintiff than the plaintiff who brought the original qui tam action. It can also be a different defendant. Section 3730(h) is intended to preclude an industry from blacklisting an employee. So if an employee brings a qui tam action while at one employer and subsequently leaves and go to -- goes to work for a second employer, when the second employer recognizes or -- or learns that this employee had previously been involved in an investigation under the False Claims Act, that second employer is precluded from retaliating against the -- the employee. So --
04-169 +++$+++ 21007 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In the real world, do we have such cases?
04-169 +++$+++ 21008 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. I cannot cite to a specific case, but I'm aware that that is very much a issue that practitioners face day in and day out.
04-169 +++$+++ 21009 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Another real-world question. Do we -- do we have any -- do you have any experience that you can rely on either to show that in fact these subsection (h) claims are brought customarily with the main qui tam action or, conversely, that they are brought separately? Do we know what's going on?
04-169 +++$+++ 21010 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. It is a real mix, that on many cases you will see a retaliatory discharge action brought independently, and in other cases you'll see the qui tam action and the retaliation action brought simultaneously.
04-169 +++$+++ 21011 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In connection with what's included and what isn't included, the -- in that same 3731 provision in (d), (d) is limited to (a) and (b) and so excludes (h). And if Congress had meant that with respect to the 6-year period, they could have said the same thing, that it relates to (a) and (b) and not (h).
04-169 +++$+++ 21012 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I would recognize that there is different language that Congress could have -- have chosen to state this in a different way, but -- and you're right, that in section 3731(d), Congress did specifically reference section 3730(a) and 3730(b), but Congress did not use that precision in drafting throughout the Federal False Claims Act. Just -- there are a number of ambiguities that exist throughout the Federal False Claims Act. Congress even referred to the General Accounting Office as the Government Accounting Office.
04-169 +++$+++ 21013 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They could have done the same in 3731(c) also. Instead of just saying any action brought under section 3730, they could have said any action brought under -- which one? (a) of -- of -- which is the one that allows the Government suit?
04-169 +++$+++ 21014 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ 3730(a), Justice Scalia.
04-169 +++$+++ 21015 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ (a). They could have said (a), and they didn't. They said all of 3730.
04-169 +++$+++ 21016 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. So -- so all you can really take from the statute is that the phrase --
04-169 +++$+++ 21017 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Sloppy --
04-169 +++$+++ 21018 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-169 +++$+++ 21019 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- is what you can take.
04-169 +++$+++ 21020 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. That you have to look at the context. You have to look at the meaning, and when you're dealing with a statute that is drafted in a way that's sloppy, you have to look at what Congress really intended, and when Congress --
04-169 +++$+++ 21021 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask -- may I ask you a question about the alternative? If we don't follow this statute, you -- you refer to State law for the correct cause -- statute of limitations I guess.
04-169 +++$+++ 21022 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-169 +++$+++ 21023 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I imagine because there are different forms of retaliation -- sometimes it's a discharge, sometimes it might be slander by defaming the person for his next employer, it might be a tort, they beat him up or something, there could be a lot of different kinds of retaliation -- each of which would give rise to a different statute of limitations under State law. Does that seem reasonable?
04-169 +++$+++ 21024 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, this Court has faced that situation with 1983 in a variety of contexts, and there are a number of --
04-169 +++$+++ 21025 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We had to make up a rule to fill a gap.
04-169 +++$+++ 21026 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and in North Carolina it's easy. It is basically a 3-year statute of limitations for everything. And for a retaliatory discharge action, you look at the -- in North Carolina, you look at the limitations period for --
04-169 +++$+++ 21027 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what about Wisconsin, Michigan, Illinois, and -- and Florida? Maybe they all have different statutes and they have different kinds of causes of action that may be relevant in the retaliation case.
04-169 +++$+++ 21028 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, that is certainly an issue. With respect to the parties in this case, that is a matter that is clear and simple because North Carolina you look to a retaliatory discharge action --
04-169 +++$+++ 21029 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but in our construction of the statute, we have to think about its application throughout the United States, not just in North -- North Carolina.
04-169 +++$+++ 21030 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and a rule that would apply the residual limitation period for personal injury would certainly be appropriate for a situation like this.
04-169 +++$+++ 21031 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it -- is it a necessary element of a successful action for retaliatory discharge that -- that the action under the False Claims Act have succeeded?
04-169 +++$+++ 21032 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. The courts have repeatedly held that for a retaliatory discharge action, it is not necessary to have a violation of section 3729.
04-169 +++$+++ 21033 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What does the Government contend is to be done under (b)(1) when no violation of section 3729 is committed?
04-169 +++$+++ 21034 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the way I read the Government's brief is they want to modify the language of section 3731(b) by inserting the phrase alleged before the phrase, violation of section 3729.
04-169 +++$+++ 21035 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But don't we have to do that anyway when -- when in fact a person brings an ordinary claim? I mean, Joe Smith brings a claim that XYZ company cheated the Government. Now, that doesn't mean it was committed. It just means he says it was committed. After all, he might lose.
04-169 +++$+++ 21036 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But -- but, Justice Breyer, when the jury renders its verdict, if there is a violation of section 3729 that's proven to exist, but that -- that proven violation is beyond the 6-year period, the defendant would be entitled to judgment based upon the affirmative action --
04-169 +++$+++ 21037 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You mean if in fact the plaintiff loses because the jury finds for the defendant in the qui tam action, then it should have been dismissed on statute of limitations grounds.
04-169 +++$+++ 21038 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. What I'm saying --
04-169 +++$+++ 21039 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, of course not because -- because the word is committed there refers to the claim of a plaintiff. Doesn't it?
04-169 +++$+++ 21040 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What I'm -- what I'm saying is you have to look at the facts that are ultimately proven at trial, and if the fact of the violation is more than 6 years from the filing of the cause of action, clearly that's going to be barred by the limitations period. The word alleged does not appear in the statute, and the Government tries to -- they essentially confuse the issue by saying, well, you -- you could never -- a defendant could never prevail on a motion to dismiss because you have to look at the allegations for a motion to dismiss. But that's the very nature --
04-169 +++$+++ 21041 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it seems to me that if -- if there's no violation, then there's no triggering event to start the statute of limitations running.
04-169 +++$+++ 21042 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. That -- that's the real problem, that even under the Government's reading, that there is not a triggering event. So when you look at 3731(b) as a whole, when you try to discern congressional intent, Congress intended a -- the triggering event to be a violation of section 3729 which doesn't apply to a retaliatory discharge action. Your Honor, the -- the statute here is worded in such a way that throughout the Federal False Claims Act, there are a variety of ambiguities, but when you look at the statute as a whole, when you look at the stated purpose that Congress had of protecting people who testify at trial, there is only one way to read the statute in a way that's harmonious, and that's to read it so that 3731(b) only applies to section 3730(a) and 3730(b) --
04-169 +++$+++ 21043 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Browning, is it proper to consider in the calculus that if you use 6 years from the date the -- that the false claim was made or was alleged to be made, then you don't have to get into the question which State's statute of limitations, the choice of law question, and then when you identify that State, which limitation period within that State? I mean, those are two inquiries which can sometimes be rather complicated. They are obviated entirely if we take the 6 years from the Federal statute.
04-169 +++$+++ 21044 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, you're absolutely right, that if the respondents' and the Fourth Circuit's reading of the statute is correct, that Congress did intend this bizarre result to take place for all three causes of action, then you don't have to look to a State law cause of action to fill the gap. But there are many circumstances where this Court has recognized that you do -- when Congress has not expressly provided a limitations period, the most appropriate vehicle is to look to the most closely analogous State law cause of action. As a matter of fact, one of the comparable situations here is ERISA.
04-169 +++$+++ 21045 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We've done it for several hundred years, haven't we --
04-169 +++$+++ 21046 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-169 +++$+++ 21047 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- for all Federal causes of action? We've -- we've looked to State --
04-169 +++$+++ 21048 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ When there is no statute of limitations.
04-169 +++$+++ 21049 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ When -- when --
04-169 +++$+++ 21050 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The question is Federal statute. Is there one? And my question is deciding is there one -- this is not something drawn from thin air. There is a 6-year period right in the statute.
04-169 +++$+++ 21051 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There -- there is a 6-year period and if that is applied by this Court to a retaliatory discharge action, there will still be difficulties because you will have situations where there is no violation of section 3729. So when do you start the limitations period running? The respondent would argue in their brief that you start it running from when they believed that the violation took place. So your -- the respondent is arguing you're looking to the mental impression of the litigant that would be the triggering device for the limitations period. Your Honor, if there are no further questions, I'd reserve the remainder of my time for rebuttal.
04-169 +++$+++ 21052 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Very well, Mr. Browning. Mr. Hurt, we'll hear -- we'll hear from you.
04-169 +++$+++ 21054 +++$+++ FALSE +++$+++ MR. HURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The text of this statute could not be more clear on this issue. A retaliation claim is a civil action under section 3730, and a civil action under 3730 is subject to a 6-year limitations period. Petitioners argue, in effect, that the Court should disregard the plain language here and claim that Congress really meant that only two of the three causes of action under section 3730, should be subject to the 6-year limitations period, those brought under sections (a) and (b), and that Congress told us this indirectly by changing the limitations trigger -- this simply makes no sense for two reasons. First, there is no reason why Congress would have limited the scope of the limitations period in such a cryptic manner. In paragraph (d) as Justice --
04-169 +++$+++ 21055 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Sloppiness. Sloppiness. How about that as a reason, sloppiness that appears throughout the rest of this -- of this piece of legislation?
04-169 +++$+++ 21056 +++$+++ TRUE +++$+++ MR. HURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I would propose that if Congress really wanted this trigger, wanted that uniform limitations period, they really couldn't have done this particular provision, (b)(1), in a more clear way.
04-169 +++$+++ 21057 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you -- do you know of -- of any other situation in which a -- a time limit is imposed that has nothing whatever to do with the -- with the act that the individual is complaining about, nothing whatever to do with the act --
04-169 +++$+++ 21058 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and where the time limit begins to run even before the act occurs?
04-169 +++$+++ 21059 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Before the act occurs.
04-169 +++$+++ 21060 +++$+++ TRUE +++$+++ MR. HURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The answer is no, but --
04-169 +++$+++ 21061 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the time limit could have expired before the act occurs. Right? So you get free retaliation after 6 years. Is that right?
04-169 +++$+++ 21062 +++$+++ TRUE +++$+++ MR. HURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sometimes equitable doctrines might apply, but the --
04-169 +++$+++ 21063 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, wait. What kind of an equitable doctrine?
04-169 +++$+++ 21064 +++$+++ TRUE +++$+++ MR. HURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For instance, if the employer deliberately waited to retaliate until the 6 years has past, that could be an instance. But the important thing is the retaliation provision in the False Claims Act is unique because it's designed to be a companion or an add-on action to the qui tam action. That's -- if you look at the reported cases, the vast majority of those cases show the two actions brought together.
04-169 +++$+++ 21065 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought that one of the major things they were concerned about was retaliation against witnesses in the qui tam action, and that will always occur after. I mean, the -- the suit for retaliation will then always occur after the qui tam action.
04-169 +++$+++ 21066 +++$+++ TRUE +++$+++ MR. HURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe the core concern is to incentivize the whistleblower. But take that particular situation, the witness, and that concern. There are other laws and other causes of actions that will protect the witness in that situation. For instance, section 1985. This Court in Hadel v. Harrison ruled that a witness who is retaliated against at a Federal trial does have a section 1985 action. Here, Congress was focusing on the whistleblower, encouraging him to bring this qui tam action. In fact, he's only protected for activities that are -- the -- the statute says, in furtherance of an action under this section. That is pointing to the qui tam action. And there's all kinds of problems that arise if these two actions are not brought together if the retaliation action must be brought first. First, if you accept the petitioner's view, you're going to have situations where as little as 180 days -- they have 180 days like in Florida to bring this retaliation action. Once that's gone, the -- the whistleblower has possibly 6 years to bring this qui tam action, but no incentive from the retaliation action, which was one of the --
04-169 +++$+++ 21067 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Hurt, can you -- can you go back a few steps? Because there was a difference between an answer that you gave and one that Mr. Browning gave. He said it's a mixed bag, the litigation of whether it's brought in one action and the whistleblower is making both claims or whether the retaliation claim is saved out and brought in a separate action. You said the vast majority of the cases involve the whistleblower asserting both claims in a single action. Which characterization is right? Mixed bag or vast majority?
04-169 +++$+++ 21068 +++$+++ TRUE +++$+++ MR. HURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the SG's office informed us that they did a search of the reported cases. In the majority of those cases, the -- the claims were brought together. The SG, I think, can give you the details on that.
04-169 +++$+++ 21069 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right.
04-169 +++$+++ 21070 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're now saying majority, not vast majority.
04-169 +++$+++ 21071 +++$+++ TRUE +++$+++ MR. HURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. I think it --
04-169 +++$+++ 21072 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, wait for the SG. (Laughter.)
04-169 +++$+++ 21073 +++$+++ TRUE +++$+++ MR. HURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But they point out -- they realized, I think, petitioners, that this is a problem that -- that this is a unique act, and they -- and they point out -- they make the claim that the Major Fraud Act somehow renders this not unique. That's a criminal statute and it doesn't have a qui tam action. Every retaliation claim is going to be based in part on an alleged violation of section 3729.
04-169 +++$+++ 21074 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you're reading alleged into -- into (b)(1). Right? Sure, it will always be based on an alleged violation. So it doesn't have to be a violation.
04-169 +++$+++ 21075 +++$+++ TRUE +++$+++ MR. HURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, no. I think that ignores how statute of limitations are actually construed by courts. You can write a statute basically two ways. You can put the violation as the trigger or you can put the act, alleged to be a violation. Courts apply those identically. And for instance, if you have a summary judgment motion by a qui tam -- qui tam defendant, which we always agree that this statute (b)(1) applies, all the defendant has to do is point out the act alleged to be a false claim falls outside of the 6-year period, and he wins. He doesn't have -- no one has to show whether the actual claim itself was false or not. So I think, you know, as Justice Breyer points out, this is the way you universally construe statute of limitations. Having the same trigger for all three 3730 actions means the limitations period starts for all three at the same time. This makes it easier for the whistleblower to bring both their qui tam and retaliation actions together. If she's forced to bring the retaliation action first, then if she misses that, then she's got no incentive to then go on and bring the qui tam action from the -- the incentive from this whistleblower action, which is the key purpose of it. Also, if she has to bring the -- the retaliation action first before the qui tam action, then what will happen, if she's not ready to bring the qui tam action -- these can be very complicated allegations, complicated defense contract -- then what will happen is she will most likely have to split her claim. And that exposes the whistleblower to all kinds of -- of pitfalls. For instance --
04-169 +++$+++ 21076 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Hurt, what -- what about the argument that unlike most retaliation situations, here if you take that 6-year period, which is much longer than the general run of retaliation statutes take it, then you would have a qui tam plaintiff who waits while the back pay is mounting, and so you can have an exorbitant application both with respect to the amount of back pay and the claim for reinstatement. 5 years down the road -- I haven't worked with this company now -- I'm going to insist they take me back, be reinstated. That -- that concern, that on your reading there is the potential for much larger damages and much more disruptive reinstatement than is usually the case.
04-169 +++$+++ 21077 +++$+++ TRUE +++$+++ MR. HURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that that type of situation is just so highly unlikely. It doesn't really comport with the realities of what whistleblowers are thinking about. For instance, in this case, Ms. Wilson didn't come forward until she saw no one else would come forward and remedy what she saw as theft from the U.S. Government.
04-169 +++$+++ 21078 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but isn't -- isn't Justice Ginsburg's question raised by your very argument, that you don't want whistleblowers having to bring their whistleblower actions before they are ready to bring their main actions? And if it's going to take -- you've just said how difficult it may be to prepare one of these qui tam cases. If in fact you're right and it may take a couple of years from the time the employer gets wind that something is going on and fires or does whatever, then in exactly that situation, the -- the whistleblower damages are going to be mounting during that period of 1 or 2 or whatever years it may be before the qui tam action starts. So on your hypothesis, it seems to me, you're going to get just the situation that Justice Ginsburg raised.
04-169 +++$+++ 21079 +++$+++ TRUE +++$+++ MR. HURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that -- I think there's a split in the lower courts about how the mitigation will apply.
04-169 +++$+++ 21080 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let's -- let's first see about your argument. Isn't that what your argument implies?
04-169 +++$+++ 21081 +++$+++ TRUE +++$+++ MR. HURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that -- that that is a possible case, but I think that that's -- the priorities for the Government and -- and Congress in drafting this law was to get money back for the Government. That's their number one concern here and to incentivize that whistleblower. If it so happens that the whistleblower takes much -- takes a long time to prepare his qui tam and brings his -- his retaliation action at the same time and ends up getting some more damages, I -- I think that ranks low on the list of Congress' priorities in drafting this retaliation provision. It's the -- getting the Government's money back, giving the whistleblower protection and an incentive to bring that qui tam claim is really Congress' core concern here. And I think these other issues about damages mounting can be readily addressed with the mitigation defense and -- and dealing with that that will take care of double damages so -- so if the whistleblower is just sitting around waiting for that, then the mitigation defense would take care of that. Also, I think the petitioner raised the idea that this is some kind of -- the -- the retaliator can bring some kind of nebulous fraud allegation if it doesn't -- isn't really tied to a specific false claim. I think that the courts are not interpreting it that way because this is a False Claims Act retaliation claim, not just a generalized fraud claim. So in a typical case, there will be a claim that -- that the whistleblower will -- will be able to point to and say I think that this claim is false. I have a good faith belief that it is false, and then it -- and that's what the trigger would be based on. I mean, in summary, if there's no further questions, I'd like to just summarize. I think this Court should uphold the plain language of the statute. While the limitations trigger is unusual, it is the one that Congress set forth in the statute. It makes sense. It reflects the unique considerations of encouraging -- the goal of encouraging a whistleblower to bring his qui tam claim with his retaliation claim. 19 years of experience have shown that the plain language works in the typical cases that arise, and that none of the reasons given by the petitioners come close to providing a justification for this Court to discard the plain language of the statute. None of the reasons -- this statute does not rise to the level of absurdity that would justify this Court disregarding the plain language. Thank you.
04-169 +++$+++ 21082 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Hurt. Mr. Driemeier, we'll hear from you.
04-169 +++$+++ 21084 +++$+++ FALSE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Section 3731(b) provides the statute of limitations for, quote, a civil action under section 3730. There is no question that Ms. Wilson's claim of retaliation is a claim under section 3730. Petitioner asks the Court to construe section 3731(b) to include an implicit limitation to claims under subsections (a) or (b) --
04-169 +++$+++ 21085 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What he's saying is it should be read to include only those causes of action under 3730 that the rest of (b) makes sense as applied to, just as in (c) the phrase, brought under section 3730, should be interpreted to -- to include only those causes of action that the rest of that provision applies to, namely, those -- those actions under 3730 that involve the United States. I mean, that's -- that's a perfectly reasonable --
04-169 +++$+++ 21086 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Section 3731(c) does not require, in its application, the Court to construe a civil action under section 3730 to mean anything other than what its words import because it only relates to the United States' burden of proof. The petitioner suggested that it implicitly was limited to an action under 3730(a). Well, that's certainly not true because if -- if an action is brought under 3730(b) and the United States intervenes, section 3731(c) establishes the standard of proof. If Congress were to amend section 3730(h) to allow the United States to bring a claim on behalf of the employee who was retaliated against, section 3731(c) would, by its terms, establish the burden of proof that the United States would have to meet. So there is no inconsistency there.
04-169 +++$+++ 21087 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You think -- do you think Congress is more likely to amend 3731(b) to say clearly and non-sloppily what it means if we find for the Government here or if we find for the -- I mean, for -- for the side that the Government supports or if we find for the other side?
04-169 +++$+++ 21088 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think that 3731(b) is capable of application exactly as written, and in fact, as we say in our brief, that that is the statute of limitations which most serves the purposes of the statute unlike the alternative the petitioner --
04-169 +++$+++ 21089 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what about this as a general -- as a general principle of construction? A court should not, unless there is no reasonable alternative, construe a statute of limitations provision in such fashion that the statute can expire before the cause of action arises?
04-169 +++$+++ 21090 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-169 +++$+++ 21091 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that a reasonable proposition?
04-169 +++$+++ 21092 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, sir.
04-169 +++$+++ 21093 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No?
04-169 +++$+++ 21094 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are any --
04-169 +++$+++ 21095 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems to me reasonable to me.
04-169 +++$+++ 21096 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Many States have adopted statutes of repose, and they apply to a cause of action that under State law accrues for purposes of statute of limitations upon the discovery of the injury. But a statute of repose can come in and instead tied to the act, say, for instance, in which the date that a product was first sold into the market. And so the cause of action, for purposes of statute of limitations, will not arise in many instances until after the statute of limitations has run because of a statute of repose. So that it's certainly not unheard of in the law.
04-169 +++$+++ 21097 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And that was the point that the Seventh Circuit made clear in -- in its --
04-169 +++$+++ 21098 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Justice Ginsburg.
04-169 +++$+++ 21099 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- statute of repose.
04-169 +++$+++ 21100 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What about an action of ejectment, an action of ejectment that arises only after the adverse possession statute of limitations have run?
04-169 +++$+++ 21101 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. There --
04-169 +++$+++ 21102 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm not sure it is right.
04-169 +++$+++ 21103 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- there other examples of -- of cases in which the time in which a claim can be brought may have expired before the cause of action accrues.
04-169 +++$+++ 21104 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But we don't run forward to create situations like that, do we?
04-169 +++$+++ 21105 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-169 +++$+++ 21106 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ My -- my point isn't that it couldn't exist. I just said you should not interpret a statute of limitations if it is reasonably possible to avoid it in that fashion.
04-169 +++$+++ 21107 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in the Bay Area Laundry case and in the Reiter case, the Court has acknowledged that there is a general rule that statutes of limitations start to run when the cause of action accrues. But in each of those case -- cases, the Court was very clear that that was the rule that applied in the absence of contrary indication by Congress. And here we have a very explicit contrary indication by Congress, that the statute of limitations for any civil action under section 3730 runs from the date on which the violation of section 3729 was committed. In other words, Congress has opted here to establish a single uniform statute of limitations for all claims that might arise under the False Claims Act. And as I said before, that serves the purposes of the False Claims Act better, far better certainly, than petitioner's alternative. As we have pointed out, many State statutes of limitations, assuming that one can determine which one applies of the many that might be offered, are much shorter than the statute provided for bringing the qui tam action. As a practical matter, then an employee might be forced to split their claims. If they split their claims, any number of adverse consequences follow. First, they could find themselves barred from bringing a subsequent qui tam action on behalf of the United States by the public disclosure bar of the False Claims Act. The Eleventh Circuit has a rule that says that the two claims are one for purposes of res judicata. So in the Eleventh Circuit, apparently they could be barred by res judicata from bringing a qui tam action. The disclosures in the course of the wrongful termination of retaliation claim action would, of course, alert the defendant to the scope and extent of any Government investigation.
04-169 +++$+++ 21108 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, he's already alerted to the extent that he's taking retaliatory action as true. He may not whole -- know the -- the whole extent of -- of what the employee knows, but he's already been tipped off.
04-169 +++$+++ 21109 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, as a practical matter, oftentimes the employer fires the employee as soon as the employer has a sense that the employee is on to something. He doesn't have a full knowledge of what the employee knows and certainly doesn't know that the employee might have told the Government and that the Government is investigating. And that's the purpose of the under seal requirement of the False Claims Act, to allow the Government to conduct a full investigation of the claim, talk to other employees about what was going on. Sometimes the employee really has identified fraud, but may only have identified a portion of the larger scheme of fraud that's going on. And the Government gets to investigate that while the claim is under seal. But in the course of discovery in any wrongful termination suit or retaliation suit, all of that information would become available to the employer. And so the sealed provisions of the FCA would be defeated in large extent. There's also the fact of just the litigation efficiencies of litigating the two claims together.
04-169 +++$+++ 21110 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can I ask you --
04-169 +++$+++ 21111 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- will be the same.
04-169 +++$+++ 21112 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can I ask you another textual question? You -- you want us to say that (b)(1) must apply to all civil actions under section 3730. Must (b)(2) apply to all civil actions under 3730 as well?
04-169 +++$+++ 21113 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the most close reading of the text would be that any civil action under 3730 can be brought within 3 years of when the official of the United States -- now, we differ from the Ninth Circuit on this. We believe that is only a Government official, in particular a Department of Justice official -- knows of the facts relevant to bringing a cause of action that the United States could bring, i.e., the cause of action under 3730(a). But we think that 3 years from that date in the action under 3730 could be brought, including the qui tam action or including a retaliation action. But that reading is not essential to the position that we advocate here.
04-169 +++$+++ 21114 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So that -- that could exclude even a retaliation action by an individual who -- who doesn't -- who doesn't know when the -- when the individual -- the official of the United States found out about those facts. That -- that doesn't seem to me very reasonable.
04-169 +++$+++ 21115 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, of course --
04-169 +++$+++ 21116 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That provision is very -- very reasonable as applied to qui tam actions. It doesn't seem to me to make any sense as applied to a retaliation action.
04-169 +++$+++ 21117 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, it -- it does make sense applying it to a retaliation action because it could be, for instance, the employee who was the individual who informed the Government official charged with responsibility to act of the facts that would warrant the United States in filing an action under 3730(a).
04-169 +++$+++ 21118 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It might be, but maybe the United States found out before -- before that individual came forward. Maybe there was an official in the United States.
04-169 +++$+++ 21119 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- that's possible.
04-169 +++$+++ 21120 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so he's -- you know, he's -- he's out of -- out of time before he even knows about it.
04-169 +++$+++ 21121 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there may be events that --
04-169 +++$+++ 21122 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Strange.
04-169 +++$+++ 21123 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There may be instances where the employee would not know that they could take advantage of that provision. But in the Bay Area Laundry case, the Court considered and rejected a virtually identical argument. That case -- the statute of limitations also was stated in the alternative, and the second one was 3 years after the information necessary to the claim had arrived. And the party who was opposed to the position the Court ultimately adopted said that the Court's interpretation of the first of the two alternatives would render the second superfluous. And the Court said, it may be superfluous to this category of claims, but it's not superfluous to other categories of claims, and so that does not prevent us from construing the first provision in the way that we are. So likewise, even if the Court were to conclude that 3731(b)(2) is unavailable to a retaliation claim or unavailable to a qui tam claim, as some courts of appeals have held, it would not mean that 3731(b)(1) is unavailable, just as holding that 3731(b)(2) is unavailable to a qui tam relator would not mean that 3731(b)(1) is unavailable to a qui tam relator. A couple of Justices, Justice Souter --
04-169 +++$+++ 21124 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but it -- but it would mean that just as 3731(b)(2) can be selectively applied to some categories and not to others, so also, by parity of reasoning, (b)(1) can selectively be applied to some categories of violation and not to others.
04-169 +++$+++ 21125 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again, we believe that the best, most faithful reading of the text is that (b)(2) is available to all causes of action under 3730. The -- Justice Souter asked a question about statistics and the frequency with which the claims are litigated together. In a review of court of appeals decisions, there were 51 court of appeals decisions actually involving a 3730(h) claim. Of those, in 32 the qui tam -- a qui tam claim and a retaliation claim were paired. They were litigated together. In only 5 were both a qui tam action and retaliation claim brought, but brought in separate litigation. So 32 to 5 is the relevant comparison there.
04-169 +++$+++ 21126 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about the rest?
04-169 +++$+++ 21127 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In -- in --
04-169 +++$+++ 21128 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's --
04-169 +++$+++ 21129 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- 14 claims an individual brought a retaliation claim but never brought a qui tam suit. It may be that the Government had sought this --
04-169 +++$+++ 21130 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I would county that as being brought separate. I think you should add that with the other 5.
04-169 +++$+++ 21131 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, in -- in fact, if we -- if we look more closely at those 14 cases, 5 of them were dismissed because the plaintiff was not even involved in protected conduct under the statute. So the closer you get to the core of what Congress had in mind, when it enacted the statute, of -- of pulling out employees who have the information that only they have that the Government needs in order to recover fraud, the closer you get to that core, the more likely it is that the claims that are going to be litigated together. And that's the way the Court ought to apply the statute. It's the way Congress wrote the statute, to serve those purposes. The -- I -- I think that the alternative of applying State statutes of limitations raises -- North Carolina does not dispute that, for example, in Florida the -- the analogous statute of limitations under Florida law -- it's the Florida State False Claims Act which has a retaliation provision -- would be 180 days. 180 days is far too short to put together the complicated qui tam complaint that is called for under the False Claims Act.
04-169 +++$+++ 21132 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, apparently Florida didn't think so.
04-169 +++$+++ 21133 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Excuse me, sir?
04-169 +++$+++ 21134 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Apparently Florida didn't think it was too short.
04-169 +++$+++ 21135 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Florida may have made an alternative policy decision in terms of wanting the claims to be litigated together or apart. The Congress has established a single uniform statute of limitations which allows the claims to be litigated together, and as I've said, that is in fact the practice that when someone is going to bring a qui tam action, they almost invariably -- there -- there are 5 exceptions -- bring the cases together. If there are no further questions, thank you very much.
04-169 +++$+++ 21136 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Driemeier. Mr. Browning, you have 8 minutes remaining.
04-169 +++$+++ 21138 +++$+++ FALSE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. The Government argues that there will be problems that will arise from splitting the qui tam action and the retaliatory discharge action. And one of the examples that the Government use -- uses is the public disclosure doctrine which is set out in section 3730(e)(4)(A) of the False Claims Act. The public disclosure doctrine, however, is a red herring here because the public disclosure doctrine is designed to keep -- to avoid parasitic lawsuits where information is in the -- the public domain, somebody taking that information, and then filing a -- a qui tam lawsuit. The -- the public disclosure doctrine, 3730(e)(4)(A), also provides that when someone is the original source of the information, even if the basis for the lawsuit has been made public through a congressional hearing or elsewhere, that person can still bring an action if they're an original source. So it's a complete red herring here. The other red herring that was put forth is a statement that there's a rule in the Eleventh Circuit relating to claims splitting. And forgive me, I cannot recall the name of the case that the Government is referring to, but it is a decision by James C. Hill. And that specific case involved a situation where the qui tam action was brought, a settlement was reached, and then well after the fact, the plaintiff said, oh, and I have this retaliation claim. It makes perfect sense in that situation to -- to apply principles of res judicata. What the Government is ignoring is there are no reported decisions anywhere where a retaliatory discharge action was brought and then res judicata was used to bar the qui tam action filed at a later date. And there's a perfectly logical reason for that because they are different causes of action, and they involve different parties. A retaliation claim is personal to the individual. A qui tam action is an action brought on behalf of the Government. One final point that I'd like to make is the respondent takes the position that the False Claims Act is unique. Well, it's not unique. It's not unique in that when you look at the Major Fraud Act, there is a retaliatory discharge provision that is virtually identical to the False Claims Act, and in the Major Frauds Act -- with respect to the Major Fraud Act, Congress made a -- a conscious decision not to include an express limitations period. It's not -- the False Claim Act is also not unique when you compare it to ERISA. ERISA --
04-169 +++$+++ 21139 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Just go back to what you said. In -- in the Major -- whatever it is -- is there any limitation at all, or just the limitation on the qui tam and as here, as you contend is so here?
04-169 +++$+++ 21140 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Major Fraud Act is a criminal provision that provides a retaliatory discharge provision for anyone who assists the Government in bringing the criminal prosecution. There -- there -- in the Major Fraud Act, there is a specific limitations period of 7 years in which the prosecution has to be brought by the United States.
04-169 +++$+++ 21141 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, that's -- that's a criminal proceeding.
04-169 +++$+++ 21142 +++$+++ TRUE +++$+++ MR. BROWNING +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But -- but there is -- it -- but the criminal statute provides for a civil remedy for a retaliatory discharge, and with respect to that retaliatory discharge provision in the Major Fraud Act, there is no limitations provision. One other point that I want to make is that the False Claims Act is not -- not unique when you compare it to ERISA. ERISA is a statute that has essentially a retaliatory discharge provision as well in section 510 of ERISA, 29 U.S.C. 1140. And courts -- the Federal courts have consistently held that there is no express limitations period for section 510, so we have to look to the limitations period under the most closely analogous State law cause of action. On the other hand, ERISA has numerous provisions, numerous other aspects of the statute, that do have a limitations period. The limitations period for an action for breach of fiduciary duty is a 6-year period with a 3-year tolling provision. So ERISA is a prime example of a statute where Congress has made a decision that when you have a retaliatory discharge provision, not to apply the statute of limitations period, that you look to State law, even though that Federal statute in other aspects has other limitations provisions. If there are no further questions, we would rely upon our briefs.
04-169 +++$+++ 21143 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Browning. The case is submitted.
04-1704 +++$+++ 21147 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first this morning in 04-1704, Chrysler versus -- DaimlerChrysler versus Cuno, and 04-1724, Wilkins versus Cuno. Mr. Olson.
04-1704 +++$+++ 21149 +++$+++ FALSE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Respondents dispute the wisdom, efficacy, and constitutionality of Ohio's franchise tax system, but they face two insurmountable obstacles in this Court. First, they cannot demonstrate any actual, concrete, and direct injury as a result of Ohio's investment tax credit to satisfy the irreducible minimum requirement for standing in this Court. Secondly, the facial Dormant Commerce Clause challenge that they bring is without merit. Ohio imposes no burdens or tariffs on interstate commerce. Its investment incentive program is available on equal terms to in-State, out-of-State, local, or interstate businesses. It is nondiscriminatory, and it stimulates, rather than impedes, commerce. Respondents are not injured when a business with which they do not compete receives a reduction in their taxes as a result of a tax credit. Respondents pay no higher taxes for products. They suffer no coercion because of a tax credit that is given to others. Their tax burden is not increased by Ohio's investment tax credit, nor will it be lessened if it is eliminated.
04-1704 +++$+++ 21150 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Olson, who would have -- who would have standing? I understand your argument that Ohio taxpayers don't, but are there people who would have standing?
04-1704 +++$+++ 21151 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure, Justice Ginsburg. In some of this Court's Dormant Commerce Clause cases, competitors, who are arguably injured because they are paying a higher tax against the -- compared to the company that's receiving the benefit -- in a couple of cases, this Court has recognized customers of companies that are paying higher products, and, therefore, potentially higher prices, for the products that they purchase. And, in one or two cases, States have been recognized for purposes of standing. But --
04-1704 +++$+++ 21152 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You think there has to be somebody who can challenge it, though.
04-1704 +++$+++ 21153 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, we don't think that at all. As this Court --
04-1704 +++$+++ 21154 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Some of our opinions say that, don't they, that --
04-1704 +++$+++ 21155 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1704 +++$+++ 21156 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- it's not necessarily true that there has to be --
04-1704 +++$+++ 21157 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What -- Justice Scalia, I think the strongest statement is in the Valley Forge case, at page 489, where the Court said, "If Respondents have no -- the argument that if Respondents have no standing to sue, no one would have standing, is not a reason to find standing." This would convert "standing" into a requirement that must be observed only when satisfied. But the fact is that under any standard articulated by this Court in its article III cases, the Respondents here do not having standing. The effect of the tax is very "uncertain, hypothetical, or speculative," to use the words of this Court, with respect to them. They cannot demonstrate that they are affected by it. And as --
04-1704 +++$+++ 21158 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Olson, I had asked you the question, because I wanted to know whether this case was distinguishable from Flast in that regard, although I recognize your quotation from Valley Forge. That -- Flast seemed to be a case that fit that description, that there was no one who would have a better claim for injury, in fact.
04-1704 +++$+++ 21159 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, nonetheless, the Court made that distinction in the Flast case with respect to the Establishment Clause, and, specifically, the spending and taxing powers exercised by Congress. And the Court determined, in that case, that the Establishment Clause was a specific limitation on spending authority. The Court has been very careful, and many Justices of this Court, individually, have said that that distinction in that case will not be extended beyond the Establishment Clause, in the context of spending, in connection with a religious conviction, or the establishment of a religion. The Court has indicated, frequently, I think, that that is not going to be extended. At any rate, it wouldn't be extended -- the logic of Flast wouldn't be applicable here anyway. This is not an application of the spending power by Congress or the taxing power by Congress. This is the Commerce Clause, which is a permissive grant of authority to Congress, and, at most, under the Dormant Commerce Clause, a limitation on the States. These respondents are not remotely close to what this Court has said are the irreducible minimums. Even if they --
04-1704 +++$+++ 21160 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ With respect to the claims that are before us. But there was standing below for the municipal taxpayers with respect to their challenge to the property taxes.
04-1704 +++$+++ 21161 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We believed, at the time, that there was standing with respect to the property taxes -- - the municipal taxpayers, with respect to the property taxes. That was the --
04-1704 +++$+++ 21162 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
04-1704 +++$+++ 21163 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- basis for the --
04-1704 +++$+++ 21164 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, why isn't -- these -- why aren't the present claims brought under -- you know, within the same nucleus of operative facts, the same sort of supplemental jurisdiction that allows the Federal court to consider purely State law claims if they have jurisdiction of another related Federal claim?
04-1704 +++$+++ 21165 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Court has never treated article III standing that way, Mr. Chief Justice. The Court has said, "a standing is not dispensed in gross" -- that was the Lewis versus Casey case -- that standing has to looked at -- be looked at individually with respect to the claim. Furthermore, this -- there was not an identical nucleus of facts. I mean, it is the -- the property tax exemption was issued pursuant to a contract between the company here, DaimlerChrysler, and the City of Toledo. The State tax --
04-1704 +++$+++ 21166 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But just to get -- I mean, you don't dispute the standing of the municipal taxpayers on the property tax issue?
04-1704 +++$+++ 21167 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We did not, and do not. Now, I -- there may be arguments that might be made, that are not before this Court, with respect to the whole idea of --
04-1704 +++$+++ 21168 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if it's an article III issue, I think that's always before us.
04-1704 +++$+++ 21169 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, with respect to the municipal taxpayers and the -- and whether there would be standing to challenge the property tax exemption. That's not an issue that has been briefed here. It's --
04-1704 +++$+++ 21170 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I was thinking if your -- if the argument is that the claims that you're concerned about today can be piggybacked onto the other ones, then we do have to consider whether there's a pig to piggyback them onto.
04-1704 +++$+++ 21171 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. But that would require a rather significant change in the Court's article III standing jurisprudence. It would, furthermore, allow the tail to wag the dog, the exception to swallow the rule. If anybody could bring any kind of a case at all, then all manner of cases of -- with -- for which the Court had no jurisdiction at all could be along with them.
04-1704 +++$+++ 21172 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In any case, it's clear that that -- that that entity no longer has standing, isn't it?
04-1704 +++$+++ 21173 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, the -- there's a separate entity, called Kim's Auto. That --
04-1704 +++$+++ 21174 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1704 +++$+++ 21175 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that entity no longer has standing. There are still property taxpayers, but that --
04-1704 +++$+++ 21176 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But they don't --
04-1704 +++$+++ 21177 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's cause --
04-1704 +++$+++ 21178 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But they don't -- I mean, I thought the assumption here is that they don't have standing. The --
04-1704 +++$+++ 21179 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
04-1704 +++$+++ 21180 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The former standing of Kim's Auto cannot allow this suit to proceed, under any theory --
04-1704 +++$+++ 21181 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's --
04-1704 +++$+++ 21182 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- can it?
04-1704 +++$+++ 21183 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's --
04-1704 +++$+++ 21184 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Don't you have to have standing during the entire --
04-1704 +++$+++ 21185 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's --
04-1704 +++$+++ 21186 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- process --
04-1704 +++$+++ 21187 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely correct. But the Chief Justice was asking me about the municipal property taxpayers with respect to the claim concerning the property tax exemption. Those plaintiffs -- respondents are still in the case. That's not Kim's Auto.
04-1704 +++$+++ 21188 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but the only person who could give them standing, even by this associational theory, is gone.
04-1704 +++$+++ 21189 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, there are -- there are still property tax -- some of the respondents that are still in the case are property taxpayers. Kim's Auto --
04-1704 +++$+++ 21190 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But --
04-1704 +++$+++ 21191 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- wasn't the only one.
04-1704 +++$+++ 21192 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But they are not property taxpayers who have standing under any -- under the argument that you've just made.
04-1704 +++$+++ 21193 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect to --
04-1704 +++$+++ 21194 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The only property-tax individual who had standing was somebody whose land had been condemned. None of these other people in it have had their land condemned --
04-1704 +++$+++ 21195 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In --
04-1704 +++$+++ 21196 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- have they?
04-1704 +++$+++ 21197 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In fairness, Justice Scalia, I think that there are other respondents who claim to be property taxpayers in the City of Toledo, aside from Kim's Auto.
04-1704 +++$+++ 21198 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Whose land has been condemned.
04-1704 +++$+++ 21199 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. They are -- they are complaining about the --
04-1704 +++$+++ 21200 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but --
04-1704 +++$+++ 21201 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- property tax --
04-1704 +++$+++ 21202 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- but you say that a property taxowner, simply by being -- simply by being subject to the property tax, does not having standing. Isn't that your position?
04-1704 +++$+++ 21203 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, we're saying -- we -- the property -- under this Court's jurisprudence, municipal taxpayers have been permitted, under some circumstances, to challenge municipal actions, irrespective of the imminent domain proceeding. So, there is that separate issue that's in the case. If I might, I would like to spend a moment or two with respect to the merits of this case, because it is a very important issue. Nearly every State in the United States has some sort of incentive program. This -- with respect to the location of businesses or the drawing of businesses within the State, which is --
04-1704 +++$+++ 21204 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Olson, I don't mean to deflect you from getting on to the merits, but there was one point in your brief that was of concern to me. That is, you said that you questioned whether, assuming we accept your argument on standing, it would be appropriate to return this case to the court of appeals with instructions that it be remanded to the State court and with the counsel fees that 1447 entitle one to. And you said that would not be right.
04-1704 +++$+++ 21205 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. We believe that the case was properly removed, and, therefore, there's not counsel fees with respect to the removal statute; that the proper resolution would be to vacate the Sixth Circuit decision and then remand to the district court for a dismissal because of lack of standing, or the Court -- this Court hasn't resolved whether it would be a dismissal or a remand to the -- to the State court. We don't believe that there would be standing under State court taxpayer or State -- Ohio jurisprudence, either. If I may, Mr. Chief Justice, I'd like to reserve the balance of my time.
04-1704 +++$+++ 21206 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. Mr. Cole.
04-1704 +++$+++ 21208 +++$+++ FALSE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, may it please the Court: We agree with DaimlerChrysler's position, both as to standing and as to the merits. The Respondents' grievance as taxpayers, the sole standing argument they press here, is a textbook example of the generalized public grievance that the Court has repeatedly rejected as a basis for -- or for standing. Respondents' only claimed taxpayer harm is their assertion that the State fist loses money as a result of the investment tax credit.
04-1704 +++$+++ 21209 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do they have standing in State court?
04-1704 +++$+++ 21210 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we do not believe that they have standing in State court, either. Ohio has a taxpayer standing doctrine much like the Federal taxpayer standing doctrine. They would need to show some unique harm separable to them. I believe the language is that they would have to show that they contribute to a special fund. And that's out of a case called Masterson, in Ohio. There is a separate Sheward case that the Respondents cite in, I believe, footnote 5 of their brief. We don't believe that this falls within the Sheward exception to standing, in Ohio. There's a certain exception that allows certain case of great public importance to go directly to the Supreme Court, but we do not believe that --
04-1704 +++$+++ 21211 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So --
04-1704 +++$+++ 21212 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- this would fall within that.
04-1704 +++$+++ 21213 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what about the municipal taxpayers on the property tax claim that we were talking about earlier?
04-1704 +++$+++ 21214 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor --
04-1704 +++$+++ 21215 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do they have standing?
04-1704 +++$+++ 21216 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. And I wanted to respond a little bit to Justice Scalia's point. I think what they're trying to claim is, because they have municipal taxpayer standing to challenge the property tax exemption, that that somehow allows them, then, to sweep in their challenge to the investment tax credit, as well. We don't dispute that they have municipal taxpayer standing to challenge the property tax exemption. We do, however, dispute whether or not that gives them standing to also challenge the ITC.
04-1704 +++$+++ 21217 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And that's because it's a local -- it's a Toledo city property tax, is that the distinction you're making?
04-1704 +++$+++ 21218 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the property tax exemption is a State tax program, Your Honor, but it requires action by local city leaders --
04-1704 +++$+++ 21219 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, that's --
04-1704 +++$+++ 21220 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to --
04-1704 +++$+++ 21221 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You would be challenging the local action --
04-1704 +++$+++ 21222 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It --
04-1704 +++$+++ 21223 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- rather than the State --
04-1704 +++$+++ 21224 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It --
04-1704 +++$+++ 21225 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- action, and that's how you distinguish the municipal taxpayer.
04-1704 +++$+++ 21226 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In a sense, that's right, Your Honor. This Court has noted that the relationship between a municipal citizen and a municipal corporation is akin to between a shareholder and a corporation, generally, and that, in some instances, that will allow the municipal citizens to challenge the actions of their municipal leaders, in a sense. This property tax exemption involves that type of action. It would, in a sense, be a challenge to that, and, I think, cognizable under the Court's municipal taxpayer --
04-1704 +++$+++ 21227 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, a tax -- just -- so, a taxpayer in Wyoming can't challenge the State tax, because his claim is too diffuse, but a resident in New York City can challenge the city tax, because it's not.
04-1704 +++$+++ 21228 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, when looked at from a numerical basis, I agree that the distinction might not seem to carry a lot of weight. The Court, however, has not looked at it in terms of numbers, it has looked at it in terms of the, quote, "special relationship" that arises between a municipal citizen and a -- and a corporation. And presumably that special relationship exists independent of the size of the municipality. But, in any event, whether or not they have municipal taxpayer standing to challenge the property tax exemption, there's no way to somehow grow that into standing to challenge the separate enactment by the Ohio General Assembly.
04-1704 +++$+++ 21229 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There's also a redressability problem, too, isn't there? I mean, assuming they could, is there any -- would action against the Assembly eliminate their tax?
04-1704 +++$+++ 21230 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It wouldn't, Your Honor, although --
04-1704 +++$+++ 21231 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No?
04-1704 +++$+++ 21232 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I think it puts a point on the problem with, in a sense, trying to grow a standing. You ask, would it redress? And I guess the question is, redress what? I mean, they don't have any separate harm associated with the investment tax credit that's constitutionally cognizable.
04-1704 +++$+++ 21233 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There are some -- at least it's arguable that there's Federal municipal taxpayer standing. And certainly some States have said that there is. And that -- and whatever Ohio might or might not do is not relevant to this proceeding. We don't know that. I'm -- you've given your opinion on what it would be.
04-1704 +++$+++ 21234 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's correct, Your Honor, but, still, there needs to be some way to grow the municipal taxpayer standing into --
04-1704 +++$+++ 21235 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's a --
04-1704 +++$+++ 21236 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- standing to --
04-1704 +++$+++ 21237 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that's the piggybacking question. That's quite different. And --
04-1704 +++$+++ 21238 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Exactly, Your Honor. And my only suggestion was that, even if there is municipal taxpayer standing to challenge a property tax exemption, which we've conceded below, that doesn't somehow confer standing to challenge of separate enactment by Ohio's General Assembly. Respondents, in their brief, talk about this notion of ancillary standing, but that -- the case they cited -- and they -- principally, they talk about the Flast case, where, in addition to considering the Establishment Clause challenge, the Court also, in a footnote, mentioned the free-exercise challenge and the question of whether there would be separate standing for that. But there, in the Flast case, it was a situation where they were using two theories to attack the same legislative enactment. Here, they're trying to attack a statute which they haven't shown causes them any harm. And so, the case is -- the challenge that they are bringing is, in a sense, an abstract challenge. It isn't one that's in a -- in a form that's judicially cognizable. That's why this ancillary standing theory, which would represent a dramatic expansion of the Court's article III jurisprudence, would not be a sound constitutional interpretation. It would allow the Court to interject itself into disputes where there's no injury to any -- no concrete injury to any specifically identified plaintiff. Article III's case for a controversy requirement is supposed to ensure that when the Court takes action, it takes action in the context of a particular concrete harm, and it can do its legal analysis against the backdrop of this plaintiff who's been harmed in this manner. These plaintiffs can't meet that. They haven't shown any harm to themselves, any judicially cognizable harm, under article III. If I could, for a moment, Your Honors, I'd also like to turn to the merits, briefly, of the Respondents' claim. We believe Respondents' claim also fails on the merits of the Dormant Commerce Clause. Ohio provides a benefit for those who invest in the State; but Respondents have not, and cannot, identify any burden that the ITC places on interstate commerce. Absent that burden, their Dormant Commerce Clause claim fails.
04-1704 +++$+++ 21239 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ On the merits, I think that their claim is -- take company A and company B. Both are located in Toledo, both hire a certain number of people, have a certain payroll, have a certain amount of property, and have a certain amount of business. Identical. And they're charged a tax. And now, what -- company B, when it's thinking of building a new plant or make new investment in machinery, if it goes to Wisconsin, it will discover it pays less taxes on all those things that were already in Ohio. And, therefore, the people who sell land or machinery in Wisconsin are discovering it isn't being bought, because that old tax, which really had nothing to do with this new investment, is now less because of the new investment. So, that hurts businesses in Wisconsin. As I understand it, that's their claim. And if I've got it wrong, I'm sure you'll correct me.
04-1704 +++$+++ 21240 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think that -- that's not the way that I understand their --
04-1704 +++$+++ 21241 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right.
04-1704 +++$+++ 21242 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- claim, Your Honor.
04-1704 +++$+++ 21243 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, then I'm probably wrong. [Laughter.]
04-1704 +++$+++ 21244 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I understand their claim -- I understand their claim more to be that two identically situated businesses, if -- both have the same tax bill -- one builds a new facility in Ohio, one builds a new facility in Wisconsin. The one who builds the new facility in Ohio is going to have a lower tax bill than the one who builds the new facility in Wisconsin.
04-1704 +++$+++ 21245 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, that -- that is true, and then the effect of that is that firms that now do business in Ohio won't build their new facility in Wisconsin, because they like the lower tax bill in Ohio. And that hurts businesses and others in Wisconsin.
04-1704 +++$+++ 21246 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your --
04-1704 +++$+++ 21247 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You were saying they have no harm? I think they're pointing to that harm.
04-1704 +++$+++ 21248 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, first, I'd note that's not a harm that they face, of course, going back to --
04-1704 +++$+++ 21249 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what is the harm --
04-1704 +++$+++ 21250 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- standing issue, but --
04-1704 +++$+++ 21251 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- they think -- well, they can tell me. All right.
04-1704 +++$+++ 21252 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. But -- [Laughter.]
04-1704 +++$+++ 21253 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- separately, Your Honor, I think what -- in this Court's Dormant Commerce Clause jurisprudence, when the Court has talked about "burden," in the past, the Court has talked about the situation where activity out of State is somehow assessed a tax. That is, the tax in State A goes up as a result of activities in State B. The Westinghouse case is a perfect example. There, there was a New York tax that increased for each export transaction that occurred outside the State. In a sense, New York was exporting the tax burden to activities that existed in some other State. And that's the sense in which the Court has used the word "burden" in its past cases, not this more amorphous sense that Plaintiffs -- or Respondents are pushing here.
04-1704 +++$+++ 21254 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There isn't -- the tax credit doesn't give them -- require them to buy, in State. I mean, the purchase -- whatever they equip the plant with can come from vendors and manufacturers, out of State?
04-1704 +++$+++ 21255 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely right, Your Honor. There's no limit on where the taxpayer purchases the equipment they install in the State. There's no limit -- no effect on where the goods from the factory go. There's no limit on who you can hire to work in the factory, or where they come from.
04-1704 +++$+++ 21256 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the credit's available to out-of-State companies.
04-1704 +++$+++ 21257 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Your Honor. The credit is available independent of whether you already have a presence in Ohio, whether you've never had a presence in Ohio, whether you've never even paid taxes in Ohio before. Certainly, if you invested within the State, you're now going to have a corporate franchise tax bill, and the credit would be useful to you at that point. But you could have had no pre-existing relationship with the State at all, as a taxpayer, and still take advantage of this tax credit. It's equally available to all comers. The only question is, What do you do in the State of Ohio? Do you invest money in the State of Ohio? And the credit turns on the amount of that activity in Ohio. If DaimlerChrysler establishes a new plant in Missouri or Montana or California, it, in no way, impacts the credit that they receive in Ohio. They're not deprived of that credit. It doesn't become of a -- of a lower value because of their decision to invest elsewhere. And so, under this Court's --
04-1704 +++$+++ 21258 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but it would be of higher value if they invest it in Ohio. I mean, that's all --
04-1704 +++$+++ 21259 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Interestingly, Your Honor, it --
04-1704 +++$+++ 21260 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Presumably, the Ohio legislators were not doing this irrationally.
04-1704 +++$+++ 21261 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would -- I would hope not, Your Honor. I mean, I think the sense is that it increases investment in Ohio. And that's what this Court has called a "laudable goal" of State economic policy, is to try to increase investment within the State to benefit the citizens of the State. Certainly, that's --
04-1704 +++$+++ 21262 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That -- in some sense, at the expense of the citizens in other States.
04-1704 +++$+++ 21263 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know, Your Honor. A couple of responses to that. First, to the extent this spurs investment that otherwise would not have taken place anywhere else, of course that's just positive sum. That's new economic development that wouldn't have occurred, but for this incentive, or incentives like it. Of course, at some level there's going to be competition for where these manufacturing facilities are located. But, again, this Court has noted that competition among the States for their share -- or their fair share of interstate commerce is not, in and of itself, a Commerce Clause problem. The question is only when that competition becomes discriminatory in some way. And what the Court has meant by "discriminatory" is, Does it somehow tax your decision to be somewhere else? When you decide to be in Missouri, does that increase your Ohio tax bill over what it would otherwise be? Camps Newfound, perfect example. You decide that you're going to serve an interstate clientele, your tax bill goes up above what it would be if you didn't serve an interstate clientele. And Ohio's tax credit doesn't have that characteristic that the Court has found so troubling. In fact, looking back through the Court's cases, over and over again this notion of burden comes up, and -- whereby, "burden," it means "imposing taxes on the business of other State," all the way back to Guy versus Baltimore, "You can't build up your commerce by means of an -- unequal and oppressive burdens upon the industry and business of other States." So, certainly if Ohio were attempting to tax DaimlerChrysler, or treat DaimlerChrysler worse because it had put a plant in Missouri, that would create a Dormant Commerce Clause question. But here, there's simply nothing like that. In fact, Respondents' theory would dramatically expand this Court's Dormant Commerce Clause jurisprudence, and would strike down a whole swath of State laws that have engendered substantial investment-backed expectation at this point. Billions of dollars have been invested by thousands of companies in reliance on various forms of locational credits, whether it be job incentive credits, whether it be investment tax credits, whether it be environmental cleanup credits. All of those credits would be at risk under the theory that Plaintiffs espouse. Your Honors, this Court has more than once noted that the Commerce Clause demands that the States must sink or swim together, but it has never suggested that the States must be indifferent between those two options. Frankly, Your Honor, the States would prefer to swim. ITCs like Ohio's help the States keep their economies afloat. Respondents disagree with this, as a policy matter, but that debate belongs in Ohio's statehouse, not here. The ITC is not protectionist, and it imposes no burden on interstate commerce. And, thus, it does not violate the Dormant Commerce Clause. Ohio respectfully urges the Court to reverse the decision below or, in the alternative, to vacate the decision for lack of standing.
04-1704 +++$+++ 21264 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask this question? Would the case be any different if, instead of a tax credit, they offered a cash subsidy?
04-1704 +++$+++ 21265 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I don't actually think it would be any different, in the sense that neither one of those two would violate the Dormant Commerce Clause. Of course, this Court has noted, in various cases, albeit in dicta, that subsidies ordinarily do not run afoul of the Dormant Commerce Clause. I think this tax credit ends up having the same economic impact. And, for all the reasons I stated about a lack of burden, even if some tax credits that might be like subsidies could create a Dormant Commerce Clause problem, this tax credit does not. It imposes no burden on out-of-State activities. Thank you.
04-1704 +++$+++ 21266 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Cole. Mr. Enrich.
04-1704 +++$+++ 21268 +++$+++ FALSE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: I'd like to begin with the question of standing, and then turn to the Commerce Clause merits. Let me begin at the point where Petitioners and Respondents agree on the question of standing. The original lawsuit brought by Respondents in the Ohio State Court raised two claims, one challenging the investment tax credit that's before this Court today, the other challenging the property tax exemption. The point on which Petitioners and Respondents agree is that Respondents do have standing, in their status as municipal taxpayers, to bring their challenge to the property tax exemption. And, indeed, the district court agreed and found that there was standing, in the district court's judgment, to reach both parts of the case on the basis of the Respondents' municipal taxpayer standing.
04-1704 +++$+++ 21269 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there any --
04-1704 +++$+++ 21270 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What was --
04-1704 +++$+++ 21271 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there any authority at all for saying you can piggyback the basic case or controversy requirement? I mean, it's one thing to say you can hook a nondiverse claim, but it's a claim; it's a case or controversy. I'm -- I don't know of any authority that says that you can -- you can take a matter that is not a constitutional case or controversy and latch it onto something that does qualify.
04-1704 +++$+++ 21272 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, there are two reasons why we believe that there is such a basis. First, there are cases -- one case in this Court, in Flast v. Cohen, where the Court has found that standing to raise one claim extended, as well, to raise, in that case, a free-exercise claim. There are a number of such cases in the courts of appeals. Wright and Miller has recognized a concept of what they refer to as "ancillary standing" on that basis. But the second point that we think is perhaps more important is, once there is one claim in the case that satisfies the article III "case and controversy" requirement, then there is a case or controversy here. The question that then faces this Court is, how far should it reach in addressing the other claims which are part of that very same case or controversy?
04-1704 +++$+++ 21273 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think it was pointed out that, in Flast, at least, you were dealing with the same spending on the part of the Federal Government. Here, you have apples and oranges. The property tax is quite discrete from the investment tax credit.
04-1704 +++$+++ 21274 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is true, Your Honor. And in at least some of the circuit court cases, they have reached a second claim where the -- where a different part of the same transaction was being attacked. The Sierra Club case that we cite in our brief is one good example of that. In the present case, the two issues that we challenge both arise out of the very same transaction, out of a deal that was entered into between the City of Toledo and DaimlerChrysler --
04-1704 +++$+++ 21275 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can I back you up just a bit before we talk about piggybacking? This Court hasn't held that municipal taxpayers have standing in this sort of situation, have they?
04-1704 +++$+++ 21276 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, this Court has not ever had to address the question of municipal taxpayer standing, except in Establishment Clause contexts.
04-1704 +++$+++ 21277 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, if you want us to piggyback, we -- and if it is an article III question -- - we would have to decide that issue before we can decide whether we can piggyback your current claims onto it.
04-1704 +++$+++ 21278 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, you would at least have to decide the question of whether municipal taxpayer standing was -- satisfied the article III requirements under your standing doctrines. If you found that it satisfied the article III requirements, then that would suffice to bring this case or controversy past the article III threshold --
04-1704 +++$+++ 21279 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right. And you agree that the --
04-1704 +++$+++ 21280 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- bring us to prudential threshold.
04-1704 +++$+++ 21281 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you agree that the municipal taxpayer standing on the property tax question is an open issue before this Court. We have not had a holding on that.
04-1704 +++$+++ 21282 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's absolutely correct, Your Honor. We would suggest that, in keeping with the consistent holdings of every circuit court that has addressed this topic, it would make sense for this Court to acknowledge municipal taxpayer standing, or, at the very least, to acknowledge that the obstacles, any obstacles to municipal taxpayer standing, are prudential obstacles, rather than article III obstacles. There are actually other reasons why we believe the article III barrier is crossed. We believe that this case -- that, as Judge Posner wrote in a recent opinion that we referenced in a letter to the Court -- it came out after our brief was filed -- in his analysis of the taxpayer standing cases, he concluded that the Court's burden on taxpayer standing was based on prudential, not on constitutional grounds. We believe his analysis is correct. Once this becomes a question of the prudential standards, we believe that the very particular factual history of this case provides ample reason for the Court to find that there should be standing in this particular case to reach the investment tax-credit claim. Respondents brought this case in the Ohio State courts largely out of a recognition that the standards for standing were different in the State and Federal courts in this area. In fact, if Petitioners felt that we didn't have standing in Ohio, perhaps the wisest strategy for them would have been to oppose standing there. But, instead, they chose to remove the case to the Federal court. And there, we requested that the case be remanded to the State courts, because we identified to the district court the risk, that if the Federal court kept the case, we might find ourselves, years later, before a higher court that might say, "But you don't have standing," and require us to go back and begin all over in the State courts. Petitioners, at that time, argued that, in fact, we did have standing. And the district court so held. And then Petitioners have not again raised the question of standing until before this Court.
04-1704 +++$+++ 21283 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Have you found any other instance in which -- any case -- there was a absolute lack of standing, prudential standing, but the Court waived that, because it was prudential and not constitutional?
04-1704 +++$+++ 21284 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Breyer.
04-1704 +++$+++ 21285 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which one?
04-1704 +++$+++ 21286 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In Craig v. Boren, this is exactly what the -- this Court did. There, the one plaintiff who provided standing for a sex discrimination claim no longer had standing by the time the case was adjudicated. The plaintiff who ultimately had standing to keep the case going was one who, although she suffered an actual injury, was not -- was asserting third-party rights, and so, did not satisfy prudential standing requirements.
04-1704 +++$+++ 21287 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did the case use the phrase "capable of repetition and evading review," or -- which is a mootness --
04-1704 +++$+++ 21288 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I actually --
04-1704 +++$+++ 21289 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I just have to read Craig --
04-1704 +++$+++ 21290 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- don't believe that --
04-1704 +++$+++ 21291 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- on the --
04-1704 +++$+++ 21292 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- they did use that concept in Craig. I think that's a concept that has come into this Court's jurisprudence more frequently in later cases --
04-1704 +++$+++ 21293 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The problem in Craig, with the name plaintiff, is, it wasn't a class action, an 18-year-old sent to turn 21 in the fullness of time. But I didn't understand your answer about the beer seller whose standing saved the case, at least in the view of the majority of this Court. She had a real pocketbook injury. She was not able to sell her beer to the thirsty boys. So -- [Laughter.]
04-1704 +++$+++ 21294 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I don't understand why that's an example of a loose standing connection. I mean, she surely had an -- a pocketbook injury. True, she was complaining about a denial of equal protection to the fraternity brothers, but that she had an injury, in fact, there was no doubt.
04-1704 +++$+++ 21295 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, the premise behind our argument is that the article III hurdle is cleared on other grounds, on grounds that I've already discussed and we can certainly reiterate. The question then becomes -- on prudential grounds. And that is the issue that was presented in Craig, that she had a direct injury, but she was in -- she did not satisfy the prudential standards because she was asserting third-party rights. And what this Court there held was, because the parties had adjudicated the issue below without objecting about standing, that the Court would proceed to the merits.
04-1704 +++$+++ 21296 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There was no lack of standing below. The problem was that the -- Craig turned 21 while the case was pending in this Court. There was standing below. He was 18 when the litigation started.
04-1704 +++$+++ 21297 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, that -- and, similarly, we believe that there was standing, and still is standing, for the Plaintiffs to be in this Court on article III grounds because of the continuing pendency of our challenge to the property tax exemption as municipal taxpayers. We --
04-1704 +++$+++ 21298 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, could I ask about the ancillary doctrine? You say the case you cite to establish it is Flast versus Cohen. Was the doctrine discussed in Flast versus Cohen, or are you relying simply on the fact that Flast versus Cohen involved both an Establishment Clause and a free-exercise challenge, and the Court only discussed the Establishment Clause challenge?
04-1704 +++$+++ 21299 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Scalia, in a footnote in Flast, the Court specifically says, "Having now decided that there's Establishment Clause standing, we can also reach the free-exercise question without discussing whether there would be" --
04-1704 +++$+++ 21300 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. I --
04-1704 +++$+++ 21301 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- "independent standing" --
04-1704 +++$+++ 21302 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I had not --
04-1704 +++$+++ 21303 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- "for that claim" --
04-1704 +++$+++ 21304 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- recollected that footnote. I will -- I will find it. I don't read footnotes, normally. [Laughter.]
04-1704 +++$+++ 21305 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In any event, they were attacking the same thing. So, your case is different, at least to that extent, that you have two discrete taxes.
04-1704 +++$+++ 21306 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is, indeed, Your Honor. We acknowledge that, although, again, as I say, in some of the lower court cases there have been challenges where the claim that the plaintiffs did not have standing with regard to was challenging a different outcome in the same transaction or occurrence. The specific example was a challenge to an environmental impact statement, where the plaintiffs had standing to challenge certain elements, but did not have standing to challenge the potential -- the failure of this impact statement to consider impacts on indigenous tribes. And the District -- the District of Columbia Circuit held that they did have standing, based on their other standing claims, to reach that claim, as well. If I can turn, Your Honors, to the merits, if Ohio were to impose an income tax on those corporations which did their manufacturing outside of the State of Ohio, but not to impose that tax on those businesses which did their manufacturing inside of Ohio, there's no question that such attacks would violate the Commerce Clause by facially discriminating in favor of in-State business activity. It would be a tariff, by any other name.
04-1704 +++$+++ 21307 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about the fact that a State has a lower income tax or a lower property tax than any other State in the Union? Does that violate the Commerce Clause because it induces businesses to --
04-1704 +++$+++ 21308 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, we are not suggesting that any tax measure which gives an -- which encourages businesses to locate in the jurisdiction, poses a Commerce Clause problem. A Commerce Clause --
04-1704 +++$+++ 21309 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's --
04-1704 +++$+++ 21310 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- problem --
04-1704 +++$+++ 21311 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's the difference?
04-1704 +++$+++ 21312 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A Commerce Clause problem, Your Honor, is posed only when the provision provides a benefit which is specifically distinguished and provided to in-State activity but not provided --
04-1704 +++$+++ 21313 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's the case --
04-1704 +++$+++ 21314 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to out-of-State --
04-1704 +++$+++ 21315 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's the case --
04-1704 +++$+++ 21316 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- activity.
04-1704 +++$+++ 21317 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- in the tax example. I mean, the taxes are apportioned. The part of the tax -- or the business that would be taxable in the State gets taxed at a lower rate. Businesses say, "Gee, let's do more business in Ohio and pay less taxes." In this case, they're getting, effectively, taxed at a lower rate, because they make an investment in Ohio.
04-1704 +++$+++ 21318 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Your Honor, in this case, the only ones who are getting the lower effective tax rate are those who locate their manufacturing activity in the State.
04-1704 +++$+++ 21319 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I --
04-1704 +++$+++ 21320 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They --
04-1704 +++$+++ 21321 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The only one who gets the advantage of the lower -- the lower income tax rate and the lower property tax rate is someone who is located in the State. It's exactly the same.
04-1704 +++$+++ 21322 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm -- in the case of a lower income tax rate, Your Honor -- it's a different situation for the lower property tax rate, but take the lower income tax rate first -- the lower income tax rate will reduce the tax burden on all businesses, wherever their manufacturing capacity is located, who have a taxable business presence in Ohio. There is no discrimination based on where they locate any activity. If they locate new activity in Ohio, more of their income will be subjected to that lower rate of tax, but that is not discriminating between two businesses, based on where they locate their activity.
04-1704 +++$+++ 21323 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I told you, you have to locate -- you'd have to locate in the low-tax State to get advantage of the low -- of the low tax.
04-1704 +++$+++ 21324 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's not true, Your Honor. The way that corporate income taxes work, they look at a tax -- an apportioned share of the worldwide income of the business.
04-1704 +++$+++ 21325 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, then all the -- but all you're saying -- but you have to do business in the State with the lower income tax rate to get the advantage of the lower rate.
04-1704 +++$+++ 21326 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. If you're not doing business in the State, then you will not pay any tax.
04-1704 +++$+++ 21327 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that --
04-1704 +++$+++ 21328 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If --
04-1704 +++$+++ 21329 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- would seem to present the same Commerce Clause problem that you're posing for us today.
04-1704 +++$+++ 21330 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, a business that doesn't have a business presence in the State of Ohio will not pay any Ohio tax. It is not subject to any burden. It is not discriminated against in any way. That's the same situation for the property tax.
04-1704 +++$+++ 21331 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Likewise, a business that does not locate in Ohio is not subject to the -- to the higher Ohio tax, which has been reduced for them.
04-1704 +++$+++ 21332 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. The --
04-1704 +++$+++ 21333 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, they're --
04-1704 +++$+++ 21334 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- discrimination --
04-1704 +++$+++ 21335 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- they're exempt from it entirely, which is even better, I suppose.
04-1704 +++$+++ 21336 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. The discrimination here is not between those businesses which are not present at all in Ohio and those which are doing their manufacturing in Ohio, the discrimination is between those who are doing business in Ohio, but not locating their new manufacturing activity in Ohio, and those who do business in Ohio, but do locate their new manufacturing activity. This is the same situation that the Court has confronted over and over again. In Boston Stock, the discrimination only affected those purchasers or sellers of stock where the transactions had sufficient nexus with New York to be subject to New York's tax. The problem was that, of that universe of transactions, the ones where the sale was made on a New York exchange were subjected to a lower rate of tax than the ones that were transacted on an out-of-State exchange.
04-1704 +++$+++ 21337 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was the legislation that established this tax benefit -- was it controversial? Were there those who opposed it as a giveaway to --
04-1704 +++$+++ 21338 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the record does not disclose what the political context was in Ohio at the time that --
04-1704 +++$+++ 21339 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, they --
04-1704 +++$+++ 21340 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that this was enacted.
04-1704 +++$+++ 21341 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I have -- I will take judicial cognizance of the fact that such proposals are sometimes politically controversial. Isn't that the place to fight out this thing? Isn't your basic objection here that you don't agree that a State should give tax credits to business, and that's something that, you know, is in the political arena, and let the people fight it out?
04-1704 +++$+++ 21342 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, our objection --
04-1704 +++$+++ 21343 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why should that be an issue that a court should decide?
04-1704 +++$+++ 21344 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- our objection is that when States use discriminatory tax measures as a way to provide tax benefits to those businesses that locate in the jurisdiction, that it leads to a competition between the States that ends up hurting taxpayers, like Respondents here, by reducing the ability of the States to generate tax revenues from business.
04-1704 +++$+++ 21345 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but what you call --
04-1704 +++$+++ 21346 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This Court has --
04-1704 +++$+++ 21347 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- what you call discrimination is any differential. In fact, in this case, the effective tax differential is a quid pro quo for an investment. And, basically, your argument boils down to saying that there's discrimination whenever the State offers a quid pro quo for an advantage and somebody decides not to take advantage of it.
04-1704 +++$+++ 21348 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
04-1704 +++$+++ 21349 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's not discrimination. That is simply the effect of a free choice, and any business is free to make that choice.
04-1704 +++$+++ 21350 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we would suggest that that is exactly the situation in many of the cases that this Court has previously struck down as facially discriminatory tax provisions. In Bacchus Imports, anyone could move to Hawaii and produce pineapple wine and receive the benefit of the tax exemption. In Boston Stock, anyone could make their transactions on the New York exchanges, rather than an out-of-State exchange, and get the benefit of the lower rate. What this Court has consistently said is, when the benefit that is given is -- takes the form of a credit, an exemption, a reduction in a tax which applies to out-of-State businesses, transactions, and activities, that that constitutes the kind of discrimination --
04-1704 +++$+++ 21351 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh.
04-1704 +++$+++ 21352 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that the Commerce Clause forbids.
04-1704 +++$+++ 21353 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I could -- I could see your argument, if, for example, in the tax exchange case, there was not taxation being made of the out-of-State transactions. But that was the case in --
04-1704 +++$+++ 21354 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. And --
04-1704 +++$+++ 21355 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the tax. And there is -- there's no such parallel here.
04-1704 +++$+++ 21356 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, there is a very precise parallel here. The corporate income tax imposed by Ohio applies to any business that transacts business in Ohio, whether or not it has manufacturing presence.
04-1704 +++$+++ 21357 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you the same question I asked your adversary? Suppose, instead of a tax credit, they said, "We'll pay for the construction cost of a building, or we'll give you a piece of real estate, in order to get you to come in. Part of big redevelopment progress" --
04-1704 +++$+++ 21358 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1704 +++$+++ 21359 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "program, we would give you this parcel of real estate." Would that also be subject to the same analysis?
04-1704 +++$+++ 21360 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, it would not. As this Court has suggested, as far back as Hughes v. Alexandria Scrap, when the State is essentially acting as a participant in the market, deploying its own resources --
04-1704 +++$+++ 21361 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, they wouldn't be acting -- other than the one transaction, "We'll give you one particular benefit in this new development progress -- project, with no further participation as a market participant or anything like that," that would -- it seems to me that would fit right into your analysis.
04-1704 +++$+++ 21362 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in terms of its economic effect, it would, Your Honor, but this Court, in cases like Camps Newfoundland, has recognized a significant distinction between cash subsidies, on the one hand, and tax benefits, on the other, largely because the tax that is reduced is a tax which does involve an exercise of what this Court has called "a primeval governmental activity," and constitutes a kind of regulation which brings it within the scope of the Dormant Commerce Clause; whereas, in -- ordinarily, a direct subsidy paid out of the general funds of the State does not involve any such regulatory impact on interstate commerce.
04-1704 +++$+++ 21363 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in terms of discrimination and economic impact, they really are the same?
04-1704 +++$+++ 21364 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. In fact, there's a wide, wide continuum. At the one end, there is the standard -- the pure tariff. On the other end, there is providing training for workers or infrastructure for a plant. This Court has clearly recognized that tariffs are unconstitutional. There is no suggestion that providing training or infrastructure would be. All of those have the same economic effect.
04-1704 +++$+++ 21365 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but they're -- what our opinions hold are that there are some matters of producing the same result as a cash subsidy --
04-1704 +++$+++ 21366 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1704 +++$+++ 21367 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that are no good, but there are other matters that are perfectly okay.
04-1704 +++$+++ 21368 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That --
04-1704 +++$+++ 21369 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the mere fact that it has the same effect as a cash subsidy is not a problem, as far as the Commerce Clause is concerned. And what you're arguing here is, the mere fact that it has that effect of favoring businesses that choose to locate in Ohio is what makes it bad, not the fact that it's relieving, from a tax that applies to both in-State and out-of-State businesses, only in-State business. That's -- that was the Hawaii case, and all the other cases you cite. But what your argument here is that the mere fact of providing a subsidy violates the Commerce Clause. And I don't know --
04-1704 +++$+++ 21370 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor --
04-1704 +++$+++ 21371 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- any case --
04-1704 +++$+++ 21372 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- what we're suggesting is that a measure which has the identical effect, and is structured very much like a provision which applies a tax to those businesses who engage in out-of-State activity, while excusing from tax those businesses that engage in in-State activity, is a tariff, by another name. And this provision, as --
04-1704 +++$+++ 21373 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Except the criterion is not mere in-State activity. The criterion is a particular in-State activity, an investment, as to which the credit is a quid pro quo. And the opportunity to make that investment is open to every business, presently in-State, presently out-of-State, no matter where domiciled.
04-1704 +++$+++ 21374 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. And, in that respect, this is no different than, for instance, the Westinghouse Electric case, which granted -- which struck down a grant of a credit against a corporate income tax that was available to any business that chose to locate some of its export activity in the State of New York. Again --
04-1704 +++$+++ 21375 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that tax did apply to out-of-State businesses --
04-1704 +++$+++ 21376 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was --
04-1704 +++$+++ 21377 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and they got no reduction --
04-1704 +++$+++ 21378 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was exactly --
04-1704 +++$+++ 21379 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- right?
04-1704 +++$+++ 21380 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the same tax as the tax in question here, Your Honor. It was a corporate income tax apportioned on the basis of the ordinary three factors that Ohio uses, on the basis of where the company's sales are located, where the company's payroll is located, where the company's property is located. The two taxes, in Westinghouse and here, were identical. There were some small differences in exactly the way that the credit was structured, but the underlying taxes were, in all respects, identical. The problem that the Court recognized in Westinghouse is that by giving a credit that was restricted to a particular kind of in-State activity, and not to its out-of-State counterpart, the State was effectively providing a benefit to in-State business and a burden on out-of-State business that constituted the functional equivalent of a tariff, and the Court struck it down. Now --
04-1704 +++$+++ 21381 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Some States -- Counsel, some States have homestead exemptions to property taxes for people when they're buying homes in the State. That -- those would be invalid under your theory?
04-1704 +++$+++ 21382 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I don't believe that they would be. Again, a homesteader who buys a property in another State is not going to owe any tax to --
04-1704 +++$+++ 21383 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but that --
04-1704 +++$+++ 21384 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Ohio.
04-1704 +++$+++ 21385 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that person may have another piece of property in the -- in the other State.
04-1704 +++$+++ 21386 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-1704 +++$+++ 21387 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And he's not getting the benefit of this, because his homestead -- he lives somewhere else.
04-1704 +++$+++ 21388 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we would suggest that the question is whether the tax scheme in question in the State whose provision is being challenged imposes differential burdens on two different entities based on where they locate some activity. In the case of the homestead exemption, the State offering the homestead exemption is not saying, "We'll tax you if you locate outside the State." Perhaps some other State is taxing them. But, again, this Court has repeatedly avoided judging the legitimacy of one State's tax by the question of what other States did.
04-1704 +++$+++ 21389 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they're two identical pieces of property, and they'll say -- one say, "You're going to be taxed at a lower rate if that's where you're living, if that's your homestead; but if you happen to live outside the State, you're going to get taxed at a higher rate." It would seem to be very similar to what you're challenging here.
04-1704 +++$+++ 21390 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, maybe I'm not understanding your example. Are you imagining that the State that's offering the homestead exemption was imposing a tax on the property located outside the State?
04-1704 +++$+++ 21391 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, it's imposing tax on property in the State at a higher rate if it's not the person's homestead; in other words, if they don't live in the State.
04-1704 +++$+++ 21392 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. So, that is a provision that, I think, does raise at least some questions. It's one where I think there are strong justifications outside of the effect on interstate commerce that very well might provide ample justification for it. It raises -- and the question on which we have asked this Court to grant cert about the property tax exemption raises precisely the question of what sorts of conditions on a property tax exemption do, and what sorts do not, constitute discrimination against interstate commerce. I would suggest that there would be ample opportunity to distinguish something like the homestead provision, which is directed at a quite different purpose than encouraging in-State economic activity from --
04-1704 +++$+++ 21393 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's the same purpose. There's some place -- they want people to move in -- into the District here, for example, just like Ohio wants businesses to move in.
04-1704 +++$+++ 21394 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would suggest that the Commerce Clause is much more concerned with efforts to relocate businesses than with efforts to protect individuals from burdens of local property taxation.
04-1704 +++$+++ 21395 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ A lot of money in building homes.
04-1704 +++$+++ 21396 +++$+++ TRUE +++$+++ MR. ENRICH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is true, Your Honor. We would suggest that that raises a very different set of questions from the facially discriminatory distinction between out-of-State businesses who are subjected to the tax, in the case of the Ohio investment tax credit, and in-State businesses, which are excused from paying that same tax, which is, again, exactly what a tariff does, Your Honor.
04-1704 +++$+++ 21397 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Counsel. Mr. Olson, you have 4 minutes remaining.
04-1704 +++$+++ 21399 +++$+++ FALSE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. In the first place, this is article III standing that we're talking about, not prudential considerations of standing, as the Court made very clear in Valley Forge, where a taxpayer seeks to employ a Federal court to air grievances about the conduct of Government or the allocation of power in the Federal system. The "case and controversies" requirement of article III is not met. With respect to the issue of municipal taxpayer standing, the Court would have to determine that that did exist, something that has not happened before, and then would piggyback onto that claim a challenge to a separate tax by a separate Government under a separate claim arising out of a separate transaction. The deal between DaimlerChrysler and Toledo was separate from the tax granted by the investment tax credit under the State's system. Respondents state, in the first page of their brief, that, because all of these States do these things, these investment tax credits have only minimal effect on business transactions. That's the first page of their brief. That's harmful to their standing, that's harmful to their Commerce Clause challenge. Ohio only taxes in-State activity. It uses a constitutionally appropriate apportionment formula to determine how much of the interstate business's activity is attributable to Ohio, and only taxes that. So that if there is a benefit given because someone comes to the State and builds a plant there, it may result, actually, in increased taxes in Ohio, because the plant will raise the proportion of business being done in Ohio. But what Ohio does not do is -- what this Court has held unconstitutional -- is, tax the out-of-State activity, or burden the out-of-State activity, or make interstate commerce itself more burdensome. As the Court has pointed out in questions, Justices have pointed out in questions, this same issue could be raised with respect to the State of Nevada. There's no franchise tax in the State of Nevada, and same with other States. Some States offer accelerated permitting requirements or relaxed environmental rules or different educate -- employment standards, all matters of State regulation. This Court has said that competition between States for commerce lies at the heart of a free-trade society. That is what's going on here. States are competing with appropriate permissive incentives to do business within the State. This is, as this Court said, a laudable purpose for State activity. What the Respondents would do would nationalize State tax systems. You couldn't have a more beneficial tax system in Massachusetts than in Ohio, because that would provide some sort of a burden, under the Respondent's theory. The same with other regulations by States of business. We would have a system where this Court would be deciding -- all States would have to have uniform taxation, uniform systems of regulations, the very antithesis of federalism.
04-1704 +++$+++ 21400 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If you have --
04-1704 +++$+++ 21401 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Now, what I would --
04-1704 +++$+++ 21402 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- dog license -- dog license costs $10, but you have to pay 20 if you invest next time in Wisconsin. [Laughter.]
04-1704 +++$+++ 21403 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ By the way, we're not going to do it that way, we're just going to say you pay half.
04-1704 +++$+++ 21404 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If you have your dog in Wisconsin, you may pay whatever --
04-1704 +++$+++ 21405 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, no.
04-1704 +++$+++ 21406 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Wisconsin decides --
04-1704 +++$+++ 21407 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. But, you see -- but my point is --
04-1704 +++$+++ 21408 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If --
04-1704 +++$+++ 21409 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- separate tax in Ohio, and we're going to double it, though, if your next investment is in some --
04-1704 +++$+++ 21410 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be --
04-1704 +++$+++ 21411 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- other State.
04-1704 +++$+++ 21412 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be something this Court would be severely concerned with.
04-1704 +++$+++ 21413 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Correct. Now, all we do is, we say, "We're not going to double it. You're going to pay the same. But everybody invests here, pays half."
04-1704 +++$+++ 21414 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, again, that's -- and I think that goes to Justice Souter's point, that there's a relationship between the tax system and the investment. We should end on the point that every -- virtually every State has this kind of system, not just because of competition with States, but to find the right location, a depressed area within a State. And this is important with respect to businesses in the United States competing with foreign countries.
04-1704 +++$+++ 21415 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You don't believe in harmonization, Mr. Olson? [Laughter.]
04-1704 +++$+++ 21416 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't believe that the Dormant Commerce Clause stands the -- stands for the proposition that these regulations should be nationalized.
04-1704 +++$+++ 21417 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. The case is submitted.
04-1739 +++$+++ 21422 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Beard v. Banks. Mr. Rovelli.
04-1739 +++$+++ 21424 +++$+++ FALSE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The policy challenged in this case applies to a small class of dangerous, disruptive inmates, all confined at level 2 of the Long Term Segregation Unit, which is the most restrictive custody in the Pennsylvania prison system. These central facts inform every aspect of the Turner analysis which governs the outcome of this case. The denial of periodicals and photographs, with the opportunity to earn them back by improved behavior, is logically connected both to rehabilitation and security. Level 2 inmates have a -- have failed every attempt at rehabilitation. Yet, nearly all of them will be released from prison. The goal at level 2 is to turn these inmates around, to improve their behavior enough that they can be advanced safely to programs with more opportunities for self-improvement. Until that happens --
04-1739 +++$+++ 21425 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Rovelli, I -- I forget. How big a class of -- of prisoners are we talking about?
04-1739 +++$+++ 21426 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Less than 40.
04-1739 +++$+++ 21427 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Less than 40? And does the record tell us how long they have been in level 2?
04-1739 +++$+++ 21428 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the duration of -- of confinement at level 2 varies widely from one inmate to another because it is affected by their improvement.
04-1739 +++$+++ 21429 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But is there any average or any -- is there -- does the record tell us how -- how long most of them have been there?
04-1739 +++$+++ 21430 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The record does not tell us how long most of them have been there. At the time of the case in the trial court, which was 2002, 25 percent of them had been promoted to level 1 or had been released from the Long Term Segregation Unit altogether.
04-1739 +++$+++ 21431 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does that mean that 75 percent had not?
04-1739 +++$+++ 21432 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At that time, yes.
04-1739 +++$+++ 21433 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And how long -- do we know what the average period of incarceration in level 2 is? Is it a matter of weeks, or is it a matter of years?
04-1739 +++$+++ 21434 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, realistically it's in between. Again, the -- the unit had only been in operation for 2 years at the time that the record was made. So there's very little --
04-1739 +++$+++ 21435 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm trying to understand whether typically they're there for a long period of time on the one hand, or are they there sort of on probation and are periodically reviewed and moved into another system?
04-1739 +++$+++ 21436 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They're -- they're moved when their behavior improves. The average over a long period of time has been in the range of a year or so.
04-1739 +++$+++ 21437 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I see.
04-1739 +++$+++ 21438 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Were there any prisoners, since the inception to your program, that have been in there for the whole 2 years?
04-1739 +++$+++ 21439 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Through today? I'm sorry. Oh, from the time of its inception?
04-1739 +++$+++ 21440 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-1739 +++$+++ 21441 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Until the 2-year point. Yes, there were. I don't know exactly how many there were, but there definitely were.
04-1739 +++$+++ 21442 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are -- do -- is -- is Pennsylvania alone or nearly alone in imposing this rule, or is this typical of the restraints imposed in -- in this maximum restrictive confinement?
04-1739 +++$+++ 21443 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's a wide variation of privilege grants and withdrawals even at the highest levels of security. The ACLU's amicus brief points to three other States that -- that have the same program as Pennsylvania, and frankly, I'm not even sure as to those, that it's identical. But the Court has recognized that -- that these sorts of variations, particularly when we're talking about high security prisoners, are precisely what Turner contemplates.
04-1739 +++$+++ 21444 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is this one of the most severe restrictions in the Nation with respect to reading material and photographs?
04-1739 +++$+++ 21445 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sure that it is.
04-1739 +++$+++ 21446 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What is the reason that -- that the State or the regulations allow paperbacks from the library and not current events? I'm just -- that -- the rationality of -- of that line escapes me.
04-1739 +++$+++ 21447 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there's -- there is certainly a security component to it. Paperback books, small, compact, much more difficult to use as weapons, and the experience of the prison staff that operate this high security unit is that newspapers and magazines are -- have been a -- a frequent source of mischief.
04-1739 +++$+++ 21448 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can we explain that? How does one use a newspaper as a weapon? I mean, you know, maybe disciplining a dog or something. (Laughter.)
04-1739 +++$+++ 21449 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Actually inmates, particularly the worst of the worst, are quite clever at using newspapers. A newspaper rolled tightly with toothpaste used as an adhesive can be compacted into very nearly the equivalent of a nightstick.
04-1739 +++$+++ 21450 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you --
04-1739 +++$+++ 21451 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But a paperback version of War and Peace is less dangerous? It seems a --
04-1739 +++$+++ 21452 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The experience of prison officials is that, yes, it is, and -- and actually it's very common in prison systems to distinguish, for example, between hardback books and paperbacks. Yes, it's -- these are difficult lines to draw, and that's where the professional expertise of the people who deal with the problems every day comes into play.
04-1739 +++$+++ 21453 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if the concern is the safety concern, then you would have an equal concern with the Jewish Daily Forward, which is a newspaper format, or -- and I don't know what the Watchtower comes out in these days.
04-1739 +++$+++ 21454 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Well, Justice Ginsburg, the -- the experience of prison administrators is that prisoners are less likely to use religious and legal materials for mischief, and as to paperbacks as well, they do supply an alternative means of receiving information from outside the prison. But again, if I -- if I allude frequently to the experience of prison administrators, it's -- it's because that's what these -- this policy is guided by. Newspapers and magazines have a high value to inmates.
04-1739 +++$+++ 21455 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's why I thought your answer would have focused on that rather than the security concerns, is that you take away what it is they want the most because that's most likely to result in them conforming their behavior so they can get it back.
04-1739 +++$+++ 21456 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and that is -- is the primary purpose of the policy overall, and --
04-1739 +++$+++ 21457 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So why -- let's see. They go to the prison library what? Once every couple of weeks or what? Once a week?
04-1739 +++$+++ 21458 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Actually --
04-1739 +++$+++ 21459 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ One -- one visit per month. And -- and how often do they go to the prison library?
04-1739 +++$+++ 21460 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Inmates at level 2 are not permitted to go to the prison library.
04-1739 +++$+++ 21461 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's ordered.
04-1739 +++$+++ 21462 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They can order books from the library. They are allowed to visit the -- the mini law library that's proximate to the unit.
04-1739 +++$+++ 21463 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, what it says -- that's what -- it says, to review legal materials, one at a time may be let out of his cell and is escorted to a mini law library in hand. All right. Why couldn't you have a -- if he wants to see the newspaper in that mini law library, why couldn't there be a copy there, only the parts that are consistent with the censorship policy, just like a news of the day.
04-1739 +++$+++ 21464 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Having --
04-1739 +++$+++ 21465 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is there a security reason or is --
04-1739 +++$+++ 21466 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's definitely a security reason.
04-1739 +++$+++ 21467 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is there a security reason when he's there in leg irons looking at the books, the law books, in the mini law library?
04-1739 +++$+++ 21468 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Allowing the -- the inmate to request to go to the mini law library for an additional purpose or for a separate purpose to read periodicals puts increased demand on going there, and moving these inmates is a -- a very demanding operation. It requires two officers and physical restraints and going through layers of security. So it puts increased demands on prison resources.
04-1739 +++$+++ 21469 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What does the -- what does the inmate have to show in order to go to the law library? That is, suppose the inmate's position is I want to go there and I want to read Law Week and Legal Times and other -- I want to see what's new, what's breaking in the law so that maybe I'll have something I can put in a petition, and that's why I want to go every -- every chance I get to the law library. Could such an inmate go to the library?
04-1739 +++$+++ 21470 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The inmate may go to the law library subject to the limitation of one inmate at a time, subject to the sign-up list. The inmate may get --
04-1739 +++$+++ 21471 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that would mean that the inmate could go and look at the legal newspapers, but not -- not the Christian Science Monitor.
04-1739 +++$+++ 21472 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Christian Science Monitor is not available to him in the -- in the mini law library, and -- and actually, if he wanted to subscribe, he could receive a -- a legal periodical in his cell.
04-1739 +++$+++ 21473 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So he could get Law Week, Legal Times, and --
04-1739 +++$+++ 21474 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Subject --
04-1739 +++$+++ 21475 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the National Law Journal. All of those he could get.
04-1739 +++$+++ 21476 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Subject to the content restriction of religious and legal materials that would fit in one property box, he may.
04-1739 +++$+++ 21477 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, on -- on your theory of -- of behavior modification, would it, nonetheless, be -- be open to the State to say, no, you may not receive any more legal materials and you may not go to the library to look at them? Because that's something you very much want to do. And in order to do that, you've got to shape up and -- and get moved down to a lesser level of security. Would that -- I'm not saying that the State is -- is about to do that, but on your theory, could the State do that?
04-1739 +++$+++ 21478 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes, Justice Souter, the State could, as long as the overall Turner analysis is observed. And, in particular, I think that would implicate the availability -- the availability of alternative means of exercising the asserted right to receive information from outside the prison.
04-1739 +++$+++ 21479 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what would -- I mean, you know, one of the arguments made on the other side is that if you accept the behavior modification theory as an adequate justification, the Turner categories essentially become incoherent. What, for example, would be the alternative means in this case if the State said, we realize that the people in -- in -- at level 2 want to see legal materials very, very much because that is a source of hope for them, and we want them to have that source of hope only if they shape up and -- and get down to a reduced level of security, so we're going to stop it, period? What would be the alternatives within the -- the Turner analysis?
04-1739 +++$+++ 21480 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The inmate would still have unlimited access to counsel visits and can still visit the mini law library and do his own legal research, even if he's not allowed to subscribe to or -- or keep legal materials, legal periodicals in his own cell.
04-1739 +++$+++ 21481 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What if the -- what if the inmate said, look, the -- the lawyers who come to see us are -- are great guys, but they're -- they're overworked. They don't have time to be thinking about novel legal theories, which we would dream up perhaps if we could get to Legal Times and these periodicals? So it's -- it's not an alternative.
04-1739 +++$+++ 21482 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Ultimately any prisoner is -- is free to challenge the adequacy of his ability to access the courts in a -- in an as-applied challenge to his own conditions.
04-1739 +++$+++ 21483 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you're -- you're saying there -- there's a separate value here, and that is the value of access to courts. And -- and that limits what can be done for purposes of behavior modification.
04-1739 +++$+++ 21484 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Definitely.
04-1739 +++$+++ 21485 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. What about the marriage example? The -- the Court has said, yes, you couldn't -- the -- the State can't prevent the inmate from -- from getting married. I don't see where the separate source of -- of value is that would -- that -- that would affect that analysis. No right of access to court. The associational rights can be abridged and so on. Why, on your analysis, wouldn't -- wouldn't the proper disposition of the earlier case have been to say, yes, the State can preclude marriage too because that's something they very much want and -- and the State can preclude that unless they shape up and -- and get down to a -- a lesser level of security?
04-1739 +++$+++ 21486 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the marriage ban, Justice Souter, of course, is subject to Turner analysis as well, and I think that where Turner might bring up short a ban on marriage for these high security inmates is in the -- the logical connection to the rehabilitative purpose in that there being so few inmates and marriage is going to be such an infrequent occasion, it's hard to see the marriage ban as influencing level 2 inmates generally to improve their behavior.
04-1739 +++$+++ 21487 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you're saying there just is not a logical connection there within --
04-1739 +++$+++ 21488 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1739 +++$+++ 21489 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the meaning of the -- of the case?
04-1739 +++$+++ 21490 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- yes.
04-1739 +++$+++ 21491 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there would be a logical connection for those who want to get married.
04-1739 +++$+++ 21492 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that implicates --
04-1739 +++$+++ 21493 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're -- you're saying it might not make sense as a systemic policy --
04-1739 +++$+++ 21494 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-1739 +++$+++ 21495 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- because it isn't a big enough problem. But for -- we're not talking about a whole system here. We're talking about 40 people or less, and if some of those 40 people want to get married, why doesn't it make perfect sense to say no marriage?
04-1739 +++$+++ 21496 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you could say that about all -- probably a range of things if you went so far as to query each inmate as to what it is that they value most or what it is they're most interested in doing --
04-1739 +++$+++ 21497 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You can, and on -- on your analysis, why isn't that sufficient?
04-1739 +++$+++ 21498 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be an interesting program and I would defend it that you could query inmates on what is most valuable and then deprive them of it subject to --
04-1739 +++$+++ 21499 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, but how do we get around the marriage case then?
04-1739 +++$+++ 21500 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I don't think we need to get around the marriage case in the sense that, particularly as to high security inmates, prison officials have very wide discretion to fashion policies that serve the goals. And -- and to do it --
04-1739 +++$+++ 21501 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So as to these, the -- the marriage could be banned, in effect, you're saying.
04-1739 +++$+++ 21502 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It could be banned, but I do think that it would be subject to a -- a pointed challenge on the logical connection, but in theory, it's -- it is one of the instruments -- a privilege that could be withdrawn for behavior modification purposes. This case is -- is exceedingly similar to Overton where the Court directly observed that withdrawing visitation privileges is a proper and even necessary technique to -- to improve the behavior especially of high-security prisoners who have few privileges left -- left to lose, which is precisely the same situation that we're presented with in this case. Turner too -- I'm sorry. Overton as well is instructive on the subject of adequate alternatives.
04-1739 +++$+++ 21503 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I thought there, there was a genuine security concern, which I think you pretty much said doesn't exist here when you consider what they can have in -- in the cell.
04-1739 +++$+++ 21504 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that -- that in both Overton and this case, there were both behavior modification and security concerns. And I'm not even sure that their weight -- they're weighted as between the two altogether different between the two cases. Actually all of the discussion in Overton was in the context of behavior modification, which is related both to security and to rehabilitation. But the -- the tenor of the discussion was actually, I would say, more directed to rehabilitation. The Court recognized in Overton, as adequate alternative means of exercising the right, letters and phone calls. The inmates in this case have the opportunity of unlimited correspondence, family, chaplain, and counsel visits, and as -- as we've talked about, books from the prison library. Quickly addressing the last two Turner factors, accommodating the asserted right would altogether defeat the goals of the policy. It would have, as I alluded to when I did speak of security, a significant impact on guards and prison resources, and there are no ready alternatives. If I could reserve the balance of my time.
04-1739 +++$+++ 21505 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Rovelli. Mr. Marcus.
04-1739 +++$+++ 21507 +++$+++ FALSE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. Mr. Chief Justice, and may it please the Court: Pennsylvania's policy of prohibiting its most dangerous and recalcitrant prisoners from possessing newspapers, magazines, and photos as an incentive to improve their behavior does not violate their First Amendment rights.
04-1739 +++$+++ 21508 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where do you draw the line? I take it somewhere -- you couldn't deprive them of food, if that would get them to -- to conform. Justice Souter was asking about marriage. I mean, how do we tell when -- when you can deprive someone of something they -- to modify their behavior and when it goes too far?
04-1739 +++$+++ 21509 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Mr. Chief Justice. This -- I mean, this Court has already said that with respect to Eighth Amendment rights, the Turner analysis does not apply. So with respect to basic -- basic necessities, health care, food, and water, the -- the Turner analysis doesn't apply, and so you could not sort of create an incentive program to take away Eighth Amendment rights. And under -- with respect to the rights that can be -- that can be limited in order to serve legitimate penological interests, we think that -- that the Turner approach would give a lot of deference to and a lot of flexibility to States to -- to use incentive programs --
04-1739 +++$+++ 21510 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But don't we -- don't we have the same problem if we're -- if we're dealing with First Amendment interests that we do when we're dealing with Eighth Amendment interests? In other words, if -- if we don't say, well, they get outside of Turner analysis because they require -- by virtue of being enumerated rights, they require an analysis specific to them, is the abridgement of the right carried so far that it is unreasonable? If we don't say that, then I don't see, as your friends on the other side have argued, I don't see where the logical stopping point is if we accept the -- the behavior modification theory.
04-1739 +++$+++ 21511 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I think -- I mean, I think there is -- I don't think it's a boundless theory. I think you have to keep in mind that this program in Pennsylvania was -- it's implemented as a last resort. I mean, the prisoners that this regulation applies to are a narrow class of 40 prisoners who have been the most violent and most disruptive --
04-1739 +++$+++ 21512 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, oh, I -- I realize that. I mean, they're -- they're making an in extremis kind of argument. I understand that. But if -- if we accept an in extremis kind of argument on the theory of behavior modification, then I don't see why that argument does not, for example, cover the marriage case, and maybe -- maybe it should. I don't know why that argument would not allow for a total deprivation of all communication outside of, let's say, access to counsel. And -- and so it seems to me that whether we admit it or not, what's going on here, whether we call it Turner analysis or not, is we're making some kind of a judgment as to whether they're carrying the deprivation for behavior modification purposes in these extreme cases too far.
04-1739 +++$+++ 21513 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
04-1739 +++$+++ 21514 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if that's what -- I'll -- I'll be quiet in a second. (Laughter.)
04-1739 +++$+++ 21515 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If that's -- if that's what we're doing, aren't we just as much outside the Turner analysis when we're talking about the First Amendment or associational rights under the First Amendment as we are when we're talking about the Eighth Amendment? And shouldn't we say so?
04-1739 +++$+++ 21516 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I don't think so, Justice Souter. I think there's still room under the Turner analysis to apply the exaggerated response test, and that's one of the things the Turner analysis does when you go through the four factors, as -- as the Government did and the State has done in its brief, that there could be a situation where you would find that there's been an exaggerated response and that their withdrawal of the First Amendment right is actually an exaggerated response. For example, maybe if -- if there was just one minor disciplinary violation for, let's say, using obscene language, and then every -- all First Amendment rights to communication were -- were pulled out at that point for the remainder of the time --
04-1739 +++$+++ 21517 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so but at some point, there's sort of a reasonableness limit then you're saying.
04-1739 +++$+++ 21518 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is a reasonableness limit, and we've -- we've --
04-1739 +++$+++ 21519 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do -- do you concede that just because a right is enumerated, it means it cannot be entirely taken away in prison?
04-1739 +++$+++ 21520 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. This Court --
04-1739 +++$+++ 21521 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, like, you know, try the right to bear arms. (Laughter.)
04-1739 +++$+++ 21522 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. No. I mean -- no. This Court has drawn -- has drawn that distinction. The distinction this Court has drawn is that -- that most rights can be limited or even totally prohibited within prison, consistent with -- with legitimate penological objectives, deterrence or rehabilitation. The exceptions this Court has identified are for the Eighth Amendment and also for access -- you know, access to the courts, that you could -- that -- because that also implicates the integrity of the criminal justice system.
04-1739 +++$+++ 21523 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Apart from those two, access to the courts and cruel and unusual punishment, then anything goes for this set of incorrigible prisoners? They can take away -- the First Amendment, in other words, is out the window. They have no First Amendment rights that the State needs to respect. Is that --
04-1739 +++$+++ 21524 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think it would be -- Justice Ginsburg, I think it would be a rare case where an incentive program like this could be struck down as a -- you know, as a facial matter, as -- as this challenge is. I think it would be a rare case. But I think you do -- you do still go through all the -- all four factors, and you would look at the fourth factor and see that, in fact, Pennsylvania does give prisoners the opportunity to regain those privileges if they behave well. As the State pointed out, at the time the record was made in this case --
04-1739 +++$+++ 21525 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- but for this -- for this group, while they're in that situation, essentially there's no First Amendment rights. I think that's what your -- your argument. They can regain them, but that's the purpose of the behavioral modification program. But the -- the only thing that these prisoners get is the Eighth Amendment.
04-1739 +++$+++ 21526 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we do think that -- that the State can go -- can go quite far with respect to restricting First Amendment rights, but this Court still -- I mean, under prong two, this Court does look to alternative means to exercise the right. And here, 99.9 percent of the prisoners in Pennsylvania, do get to possess newspapers, magazines, and photos. The LTSU prisoners who graduate get to, and on top of that, while they're in the LTSU, the prisoners get to possess two books. They --
04-1739 +++$+++ 21527 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Marcus, I was kind of interested in your calling this an incentive program. Is there any -- there are no intermediate stages. It's an all-or-nothing incentive, isn't it?
04-1739 +++$+++ 21528 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, not at all. There are many -- there are many intermediate stages. There are restricted housing units and then there are SMUs and -- and special management units, and -- and --
04-1739 +++$+++ 21529 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, I mean, with respect to the prisoners in this population.
04-1739 +++$+++ 21530 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are incentive programs within each of those restricted units, and -- and the prisoners that end up at the LTSU -- the vast majority of them have already been through the SMU program and haven't made it and have failed that program. So they've tried numerous other incentives before getting to this point.
04-1739 +++$+++ 21531 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I didn't understand that the -- the prisoners in this particular part of the prison had any intermediate incentive. They either get out after a year or 2 or they don't. Isn't that right? I mean, they either get to a different classification.
04-1739 +++$+++ 21532 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, and that depends on their behavior.
04-1739 +++$+++ 21533 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There's no scoring. You've got 25 points now, so you're pretty close to your goal or anything like -- it's not --
04-1739 +++$+++ 21534 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-1739 +++$+++ 21535 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- not like most incentive programs I've heard about.
04-1739 +++$+++ 21536 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, they get a review after 90 days and then every 30 days thereafter. There's nothing in the record to suggest those reviews are an empty gesture.
04-1739 +++$+++ 21537 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And -- and does the review correlate it in any way with these particular deprivations? I mean, what is the review -- how does the review correlate with their inability to get reading materials?
04-1739 +++$+++ 21538 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- the review correlates with their behavior, and to the extent they show a positive adjustment in their behavior, their -- they graduate from level 2 to level 1 where they do have access to newspapers and magazines and then they can graduate all the way out. And my understanding is a number of prisoners have done that within 1 year. And with respect to someone who never gets out, that person might have an as-applied challenge if that person could show that his behavior --
04-1739 +++$+++ 21539 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is there any evidence at all that the amount of reading that they do has any correlation to their opportunity for getting better assignments?
04-1739 +++$+++ 21540 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ While they're in the LTSU?
04-1739 +++$+++ 21541 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. That there's any correlation whatsoever between how much these people -- these prisoners read and when they get into the next level of the prison.
04-1739 +++$+++ 21542 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't think any such study is done. But again, the court of appeals was wrong to require the State to offer evidence. I mean, this Court has emphasized in Turner that the connection between the regulation and the goals need merely be logical.
04-1739 +++$+++ 21543 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So the legal issues would be precisely the same if the State denied totally any reading material to the prisoners. We'd have the same issue.
04-1739 +++$+++ 21544 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it would be a more difficult case to defend under the second --
04-1739 +++$+++ 21545 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why would it be more difficult?
04-1739 +++$+++ 21546 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- under the second prong of Turner because under the second prong of Turner, you look to alternative means. We might still come in here and defend that program, but here they do provide alternative means to read and to see loved ones through visitation and through correspondence and to have two -- they have two books in their cell so they can continue reading. So there -- that -- that does factor into the balance, and we think it -- it's very clear that Pennsylvania's program is reasonable, and it would just be a more difficult case if they totally prohibited --
04-1739 +++$+++ 21547 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I understood your argument to, in effect, contend that the behavior modification rationale will justify the program no matter what the balancing process is.
04-1739 +++$+++ 21548 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, that's -- that's not our position. We think there is a balancing under Turner, and you do -- you do look at all four factors of the test. And we think that Pennsylvania's just clearly satisfies that test. And if you applied this across the board to the general population, it wouldn't. It wouldn't pass the test. But -- but these are the -- these are the worst of the worst and they've gone through many other -- Pennsylvania has gone through countless other measures to try to improve these inmates' behavior, and so I think it's wrong to conclude, as the court of appeals did, that this was an exaggerated response. Thank you.
04-1739 +++$+++ 21549 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Marcus.
04-1739 +++$+++ 21551 +++$+++ FALSE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice --
04-1739 +++$+++ 21552 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Krakoff.
04-1739 +++$+++ 21553 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- may it please the Court: I'd like an opportunity to respond to several of the points that were made by my colleague. First, I find it interesting that and also of some relevance in this case that the decision to deny access to secular newspapers and magazines that this policy of withdrawing access to these materials is not a policy of the Federal Bureau of Prison with respect to its most maximum security inmates, those who are housed in the control units. I also think it's important to note that while there's a 90-day minimum period that these inmates have to remain in the Long Term Segregation Unit on level 2 status where this -- when this policy applies, the policy also says that as long as an inmate is serving a disciplinary sentence within the prison, that he's not eligible for promotion to level 1. And the testimony from the department's designated witness, Deputy -- Superintendent Dickson, acknowledged that most of the inmates in the unit are, indeed, serving disciplinary time.
04-1739 +++$+++ 21554 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well -- well, it seems to me that that's an as-applied challenge. If -- if a particular inmate -- the terms of -- the conditions of confinement are particularly harsh and he -- he or she has an unrealistic opportunity to get to a less restrictive confinement, then -- then he can bring a suit.
04-1739 +++$+++ 21555 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I was -- I was simply trying to point out -- the -- the Court had asked how long are inmates generally in the Long Term Segregation Unit, and -- and the point that I made is that it's not unusual for inmates to remain on level 2 for periods in excess of 1 year.
04-1739 +++$+++ 21556 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Krakoff, what -- I take it you wouldn't have any objection to terminating of television rights, for example. If prisoners have the right to watch television, they misbehave, the penalty is no television. Is that all right?
04-1739 +++$+++ 21557 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct. Our position is that the choice of what vehicle the institution wants to permit through which inmates can gain access to what is occurring outside of the prison walls in political and other public matters, that's the institution's choice. And the reason these inmates sued for access to newspapers and magazines is because the representative plaintiff, Mr. Banks, was allowed to receive his Christian Science Monitor magazine because it was religious in nature, but was denied the opportunity to receive his Christian Science Monitor newspaper under -- under this policy. There's another very important --
04-1739 +++$+++ 21558 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What other alternatives would you have the prison administrators rely on? You have an incorrigible prisoner who's misbehaving. He won't behave. They go through every -- he gets up to level -- level 2. What -- what should they have done instead?
04-1739 +++$+++ 21559 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. Bottom line under my reading of Turner and Safley is that there has to be first that logical connection under the first prong. But that's not a -- an imperative --
04-1739 +++$+++ 21560 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm sorry. What should they have done instead? Let's say he gets out of the prison 1 hour every other day. Should they have taken that hour out? I mean, not out of the prison. Out of his cell. Should they have taken that hour away, or what -- what other options do they have?
04-1739 +++$+++ 21561 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, what their -- their argument is essentially that this policy was basically a decision by default, not a decision that was reasoned by prison administrators. They -- they essentially said virtually everything has been taken away from these prisoners.
04-1739 +++$+++ 21562 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right, and I want you to tell me --
04-1739 +++$+++ 21563 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And we have nothing left to take away.
04-1739 +++$+++ 21564 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I would like you to tell me what else they should have done. Why is that wrong?
04-1739 +++$+++ 21565 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's wrong because there is no logical connection to taking something away under the facts of this case when taking away an entire litany of -- or a very broad spectrum of things which -- in the special management units, where these inmates came from, they had had magazines taken away on their first phase in the special management units. They had been offered the incentive of earning access to magazines, of earning access to weekly visits with family members, of earning access to telephone calls, in fact, of earning access for release from their cells the 23 hours a day to engage in -- in small group activities with other inmates. And most spectacular was they had the opportunity, while in the special management unit, to earn a 3- to 6-month probationary period in a general population cell block.
04-1739 +++$+++ 21566 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And none of that worked. Right?
04-1739 +++$+++ 21567 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely. And my point is if -- if that didn't work, including magazines, which is the equivalent of -- essentially of -- of newspapers, they had no logical or --
04-1739 +++$+++ 21568 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So your answer to my question is there's nothing else they could have done, but they shouldn't have done this because this wasn't going to work either.
04-1739 +++$+++ 21569 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My answer is that you can't deprive an inmate of his constitutional right of free speech --
04-1739 +++$+++ 21570 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but consistent --
04-1739 +++$+++ 21571 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- unless there's reason to do so.
04-1739 +++$+++ 21572 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Consistently with your answer, it seems to me, you have to say they should give the TV back, they should give the magazines back because none of those worked either. And those are First Amendment deprivations to some degree.
04-1739 +++$+++ 21573 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What they've done here is they've removed all of the vehicles to --
04-1739 +++$+++ 21574 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. But I mean, what's -- what's your answer to my question? It seems to me that your point to the Chief Justice was the courts have to review the efficacy of these moves.
04-1739 +++$+++ 21575 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
04-1739 +++$+++ 21576 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if -- if there is no efficacy and there is an infringement of what, at least for people on the outside, would be a protected right, then they have no justification for taking those rights away. And if that's going to be the analysis, then on -- on the argument you just gave, they've got to give the TV rights back, they've got to give the magazine rights back, and so on. Isn't that correct?
04-1739 +++$+++ 21577 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ May I answer it this way? I know I'm supposed to say yes or no and then -- (Laughter.)
04-1739 +++$+++ 21578 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to give an explanation.
04-1739 +++$+++ 21579 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I sure would like that, but -- (Laughter.)
04-1739 +++$+++ 21580 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'll say no. My instinct is no, and I would also say the --
04-1739 +++$+++ 21581 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But then why? Why?
04-1739 +++$+++ 21582 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I've been reading Turner v. Safley and then more recently Overton because this is basic in my practice to represent prisoners. And my reading of Overton is that you can't have a policy. The prison officials cannot have a policy unless there is reason to believe that the policy is going to advance a legitimate penological interest.
04-1739 +++$+++ 21583 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right. And in -- in your argument, in your answer to the Chief Justice, you were pointing out a situation in which taking away the TV didn't work, taking away the magazines didn't work.
04-1739 +++$+++ 21584 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think --
04-1739 +++$+++ 21585 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why then do they not, on your theory, have to give TV and magazines back?
04-1739 +++$+++ 21586 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think that an institution can always make judgments about how extensive they want to allow inmates to --
04-1739 +++$+++ 21587 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Then where does your efficacy criterion go? You're saying they may make judgments, and apparently they may -- may make judgments and maintain them even if those judgments do not, in fact, advance their interests. Here, you're saying they -- it's not going to advance their interests, so they can't do it. In these cases, you're saying they don't advance their interests, but they can as a matter of judgment. And I don't know how to draw that line.
04-1739 +++$+++ 21588 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I'm -- I'm not saying they can't as a matter of judgment. I -- I'm suggesting that they can select among options -- we're specifically speaking about access to information outside the prison walls. And what I'm suggesting is that they can't eliminate every suitable way by which inmates can gain. And I think the word is of sufficient utility -- was the -- was the language that was used in Overton. And I'm saying the bottom line is they can't eliminate all means by which inmates can access information.
04-1739 +++$+++ 21589 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but -- the whole rationale of your case -- if I were you writing your brief, I would have this problem. This really matters to the inmates, but that's exactly the State's point. That's the reason it's taken away. It really means something. And I -- I just -- I just don't know what to do with that conundrum.
04-1739 +++$+++ 21590 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I've had other --
04-1739 +++$+++ 21591 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and it seems to me it's the heart of your case and that it surfaces here in the answers you've attempted to give.
04-1739 +++$+++ 21592 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Obviously, this -- this did matter enough to the prisoners to commence a lawsuit. I don't think that the standard by which a court -- this Court or any other Federal court should determine whether or not there's a logical connection or a reasonable connection is whether or not inmates choose to file suit. That's establishing a litmus test --
04-1739 +++$+++ 21593 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the whole basis for the suit is that it matters to the prisoner, and that's exactly why it's been taken away because there's nothing else left that we can do with these prisoners.
04-1739 +++$+++ 21594 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I see a distinction. There are lots of things that matters to prisoners and lots of things that matter to us in the free world that aren't going to change our behavior. There -- there are some things that are important to us --
04-1739 +++$+++ 21595 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about changing other people's behavior? Your -- your assertion that it does no good is based upon the fact that it has not altered the behavior of these people who are in the unit. But what about other people who don't want to get thrown in the unit? I mean, don't you have to look at the deterrent effect? And -- and is it easy for you to say that the -- that -- that the in terrorem effect of being deprived of -- of literature, television, or whatever has not induced other people to shape up?
04-1739 +++$+++ 21596 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They made the argument that this is part of an overarching deterrent program.
04-1739 +++$+++ 21597 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I think it is.
04-1739 +++$+++ 21598 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but if you look -- Justice Scalia, if -- if one looks at the record carefully, you see that this policy which, by the way, applies to 40 inmates in one particular institution in a -- in a prison system that has 23 adult institutions for men, that this policy is essentially a classified policy. The policy itself says this is not to be a matter of public dissemination and is only to be given to personnel on an as-needed basis. The inmates who receive the inmate manual in the Long Term Segregation Unit have to sign for it. They receive a number, and every manual has to be returned. Apart from the prison grapevine, which all of us know there is a prison grapevine, I submit that it's -- it's not great enough to tell inmates throughout the system that, in fact, if you get into the Long Term Segregation Unit, this very small unit, that you may lose newspapers and magazines. I don't think it is known, and I think in order to deter, a policy has to be publicized, as it was in Overton. Michigan made it very clear to the prisoners, that if they got involved into drug violations, that their visits for 2 years would be suspended. And if I may --
04-1739 +++$+++ 21599 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So let's say if -- if the flaw is it doesn't deter other people because they don't know about it, then if they -- if they broadcast it all over so everyone knows about it, then it's okay?
04-1739 +++$+++ 21600 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I say that in order to make a deterrence argument, at least an argument that makes sense to me, that in order to deter somebody from doing something, they have to know about that policy and they have to know what the consequences are. If there were a secret policy in the State of Indiana that they, you know, will execute persons committing first degree murder, any argument that that's going to -- that the death penalty is going to act as a deterrent I think --
04-1739 +++$+++ 21601 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But is there other -- are there other bases? Because so far your argument is they're so bad that you might as well give them whatever they want because it won't matter. (Laughter.)
04-1739 +++$+++ 21602 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, I'm parodying it, but you understand why I don't think it's your strongest for the reasons said. But are there others which might be a little -- you had other arguments --
04-1739 +++$+++ 21603 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, and -- and I -- I do want to say -- and I don't know how to say it more -- more clearly -- I understand it, but I'm obviously not framing this in a way that is getting my point across. I'm not suggesting that because people -- these are the most incorrigible, recalcitrant inmates in the entire 38,000 inmate prison system, that that means that they can get anything that they want. I'm suggesting that when you take away a very significant right -- and that is the ability to learn what is happening beyond the prison walls -- there has to be a reasonable basis for doing so. Now, if I've been reading Turner and O'Lone and Overton incorrectly, then I'm doing a disservice to my clients.
04-1739 +++$+++ 21604 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. It has nothing to do with the law. I understand your argument. Your argument that you have made is, at the very least, you can't say that this deterrent effect is that big a deal. I mean, now, there were other reasons justifying it. They said, for example, if one --
04-1739 +++$+++ 21605 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Security.
04-1739 +++$+++ 21606 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, and they made a big case in this. It's on 188 in the appendix.
04-1739 +++$+++ 21607 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly.
04-1739 +++$+++ 21608 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And they made a major point. They said that with the newspapers, they set fires, they throw feces. They use them as a spear, and then when asked, why couldn't you do the same with library books, or couldn't you do the same with paperbacks, they said, yes, it's possible, but it's less likely because of the size of the document. And we don't have to forbid everything. We just forbid the things that we think are particularly likely. Now, what about that one?
04-1739 +++$+++ 21609 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, my -- my -- I suppose my most straightforward answer would be that the Jewish Forward can burn as quickly as the New York Times, that the Christian Science Monitor --
04-1739 +++$+++ 21610 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, then now you're giving -- now you're making their situation worse because they tried to make your client's situation better. I mean, yes, they could -- maybe they could prohibit religious journals as well, but they -- for various reasons, they decided not to do that. Maybe they could have eliminated legal materials as well, but again, they decided not to do it. They take a more circumscribed approach. So I'm not sure it's a very effective response to say, well, they let religious materials in and that can be used as well.
04-1739 +++$+++ 21611 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it's a realistic -- with all due respect, I think it's a realistic response. I'm not faulting them. I applaud them for doing what was a reasonable thing.
04-1739 +++$+++ 21612 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought you were using that to say that the security concern doesn't hold up because of the papers that they're allowed to have in their cells can be used similarly for fires, similarly to do other bad things.
04-1739 +++$+++ 21613 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-1739 +++$+++ 21614 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So I thought that's why you were using that, just to say that the -- the security concern is dubious because the materials that they are allowed to have in their cells can -- could achieve exactly the same end.
04-1739 +++$+++ 21615 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there are other things, Justice Ginsburg, that are routinely permitted in -- in the cells and, in fact, that probably have to be in the cells that can be used. They're given -- they're giving -- given writing paper, and the testimony of Deputy Dickson was that they -- they fling feces with writing paper and they fling feces -- and by the way --
04-1739 +++$+++ 21616 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you know what kind of a fire you can make with the Sunday New York Times? (Laughter.)
04-1739 +++$+++ 21617 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you going to -- are you going to compare that to writing paper and -- and to -- to the Jewish Advocate or whatever it is? I mean --
04-1739 +++$+++ 21618 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1739 +++$+++ 21619 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- it seems to me a perfectly reasonable line.
04-1739 +++$+++ 21620 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- but it's not only -- it's not only writing paper. It's -- and they have to have blankets. The blankets are flammable. Their clothing is flammable. The bed sheets are flammable.
04-1739 +++$+++ 21621 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So if visitors -- if there's a security issue with visitors to the prisoner, you're saying you can't prohibit visitors because if you allow the lawyers to come in, because they're visitors too?
04-1739 +++$+++ 21622 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I think that would be a specious argument.
04-1739 +++$+++ 21623 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but it wouldn't undermine the security rationale just because you have some exceptions where there are other countervailing interests that might outweigh the security concern.
04-1739 +++$+++ 21624 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But if, in fact, their suggestion is that -- if their suggestion is that the inmates are less likely to burn a Bible, for example, and assuming they're -- they're Christians rather than somebody else who has the Bible, they're less likely to burn a -- the Bible or some book of scriptures, that makes sense. But when you suggest that they're less likely to burn a legal newspaper or a religious newspaper, that doesn't make sense. And I'm suggesting this isn't a question of equities that if they're nice enough to permit these prisoners to read religious-based or legal-based newspapers and magazines, that forecloses the inmates from saying -- does that make a lot of sense? I don't -- I don't think so.
04-1739 +++$+++ 21625 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask you --
04-1739 +++$+++ 21626 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is it that I should read then in respect to what's actually bothering me? In Turner v. Safley --
04-1739 +++$+++ 21627 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-1739 +++$+++ 21628 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the Court says we resolve, when a prison regulation impinges on an inmate's constitutional rights, which it does here, the regulation is valid if it is reasonably related to legitimate penological interests. That standard is necessary if prison administrators and not the courts are to make the difficult judgments concerning institutional operations. And that's where I think it's difficult to balance this case. If we were to decide for you, are we going too far in interfering on what the prison administrators should be doing, or have they gone too far? Now, if I'm supposed to look at this record and try and make up my mind, which I think is about that question, what do you want me to look at?
04-1739 +++$+++ 21629 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I want you to read the entire brief --
04-1739 +++$+++ 21630 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I'll read the briefs. I have no problem with the briefs --
04-1739 +++$+++ 21631 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I -- I suggest that our -- my brief might be more coherent than I today. (Laughter.)
04-1739 +++$+++ 21632 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I think we make out a strong case -- that we make out a strong case for why the policy in question is not reasonably related to a legitimate penological interest. I would suggest, looking at another aspect, Justice Breyer, that there was some comment about the adequacies of the -- the alternatives, the other avenues, and that's an important consideration under the second prong of -- of Turner. And I think it's -- it's strange to suggest that the prison chaplain who visits level 2 inmates for religious purposes and that attorneys, assuming that an inmate has an attorney, generally are going to come discuss either a section 1983 action or a criminal case, and that relatives once a month for an hour are going to discuss current events, and that they're going to act as kind of a quasi wire service by summarizing --
04-1739 +++$+++ 21633 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask you this question?
04-1739 +++$+++ 21634 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1739 +++$+++ 21635 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You said that the prison grapevine really doesn't tell the prisoners about this particular lack of access to public materials. Does the prison grapevine let them know that they're going to be in the cell for 23 hours a day and only be out 1 hour a day?
04-1739 +++$+++ 21636 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They're actually, Your Honor --
04-1739 +++$+++ 21637 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If that is generally known, it would seem to me that that itself would be sufficient incentive to try and avoid this program, whether or not you're going to be able to read the Christian Science Monitor or the New York Times. It seems to me that the -- the -- what we're fighting about is trivial compared to the very obvious deterrent value of 23 hours in the same cell 7 days a week, 30 days a month, 365 days a year. I don't think I'd care about this other stuff.
04-1739 +++$+++ 21638 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree with that point, obviously. But every inmate in disciplinary confinement stays in what is referred to as -- as the restricted housing unit, and they all know --
04-1739 +++$+++ 21639 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, I could say the same thing about going to jail, I mean, at all.
04-1739 +++$+++ 21640 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-1739 +++$+++ 21641 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You know, I could say whether I'm there 23 hours or all or not --
04-1739 +++$+++ 21642 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1739 +++$+++ 21643 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- it's enough of an incentive that I -- that I don't want to go to jail. There's -- there's incentives and there's incentives.
04-1739 +++$+++ 21644 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but I suggest that -- that living in a cage and exercising in a cage in -- in seclusion, that's -- that's a prison within a prison. And those things deter normal people, people who --
04-1739 +++$+++ 21645 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And once you're in that situation already, as these prisoners are, and they're still not conforming their behavior to the prison rules, you have a limited number of options for trying to get them to do that, and your response to my first line of questioning was that there's nothing else you can think of that they could do.
04-1739 +++$+++ 21646 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At some point, the options expire. They have taken so much away from these prisoners. Is that going to then justify? Say, well, we've taken everything else and this is what we have left. Is that the kind of situation where deference is supposed to be high because they're making -- I don't see that as a real choice. They're doing what they have available.
04-1739 +++$+++ 21647 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So your response is they should just grin and bear it. They --
04-1739 +++$+++ 21648 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My -- my response is that they have taken so much away from these inmates who are the most incorrigible, recalcitrant inmates in the system. And they say in their -- in their policy that these inmates are either unwilling or incapable of charging their -- changing their behavior. I submit that some of these men probably are, and I think it's also interesting that they --
04-1739 +++$+++ 21649 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- may I interrupt you --
04-1739 +++$+++ 21650 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-1739 +++$+++ 21651 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- with this question? Aren't you really saying that when the deprivations get beyond some point, some serious point, the issue is not properly analyzed under Turner and Safley, can they do one thing more? The issue really becomes one of cruel and unusual punishment. Is the totality that they have taken away so great that it is cruel to maintain these people under these circumstances? Is that the argument you're really making?
04-1739 +++$+++ 21652 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It isn't. That's -- that's an option if one reaches the point where it truly is cruel and unusual. We didn't file an Eighth Amendment challenge here based upon the facts that I knew.
04-1739 +++$+++ 21653 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, I know that wasn't -- that wasn't the claim that you made, but isn't that the argument that you're making?
04-1739 +++$+++ 21654 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. And -- and I think that -- I know in Overton there was a dissent by Justices Thomas and Scalia that essentially said that that's what you have. You -- you have an Eighth Amendment argument if a policy rises to that level, but if a policy doesn't constitute cruel and unusual punishment, then you're out of luck. And that kind of swallows up the First Amendment in my view and the other -- and other amendments as well. Now, what I'm suggesting is not that they've reached the point of cruel and unusual punishment. I'm suggesting that there comes a time when you take away so many things from these prisoners, that you basically -- yes, you may have to give up and you may have to keep them in segregation. And they do keep men in segregation -- other forms -- for 10, 15 -- I represented a man who had been in segregation for 30 years. So it's not as though that's unusual. They do give up on people in -- in the Pennsylvania prison system all of the time. That would not be unusual. I suggest that if we reach the point where the law says that if you run out of options, you can do anything that you want as long as it doesn't rise to cruel and unusual punishment, that we may as well forget about --
04-1739 +++$+++ 21655 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but the State's position is that it wants to avoid that ultimate deterrent. It -- it wants to take away privileges for a while to see if he can conform. You're depriving the State of the -- of the option to avoid the most extreme circumstances of forgetting about him altogether forever.
04-1739 +++$+++ 21656 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I --
04-1739 +++$+++ 21657 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it seems to me that -- that your -- your argument is -- is at cross ends with its own purpose.
04-1739 +++$+++ 21658 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it -- unless there are other questions, I think I've reached --
04-1739 +++$+++ 21659 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Just let me just ask one -- one thing I am curious about. The argument -- it seems to me that there's kind of a flow of these. Some of them get out of this system and some stay a long time. What does the record tell us about how often, if they conform to the regular rules without any violation for 40 days or a year, do they -- do they get out of this -- this situation?
04-1739 +++$+++ 21660 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the rules themselves say kind of in a preamble that -- that confinement is for a minimum of 90 days, but that often it's -- it's longer than that --
04-1739 +++$+++ 21661 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm not posing what the rules say. Does the record tell us whether -- you know, whether this system is just something we're talking about or whether it really has an effect on people moving from this classification to another classification.
04-1739 +++$+++ 21662 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there were -- there were 10 inmates in the first 2 and half years of the operation, according to Deputy Dickson, who had moved out of -- out of the unit. The record is silent as to whether any of these inmates ordered subscriptions for newspapers or magazines. So we don't know whether that even arguably was a factor. I think that the -- that the State has acknowledged that there might be many reasons why inmates might leave the Long Term Segregation Unit that could be unrelated to the -- the, quote, incentive of newspapers and magazines. So we don't know whether any of them have left because they've simply gotten tired of being in segregation for 2 and a half additional years, after flunking out of the special management units, or whether there were other -- other factors. Two -- what -- what is concerning is that two inmates left straight from the unit to the streets because their sentences expired. And so they were essentially people who -- you know, they -- they could read about the -- an ancient war in the Bible, but they couldn't read about Iraq. So they were going to have -- I don't know if that's a healthy situation. That's not from a constitutional perspective, --
04-1739 +++$+++ 21663 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What -- this --
04-1739 +++$+++ 21664 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but from a practical perspective.
04-1739 +++$+++ 21665 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What other than the periodical, newspaper access differentiates this custody from the next higher --
04-1739 +++$+++ 21666 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Special management unit?
04-1739 +++$+++ 21667 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-1739 +++$+++ 21668 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, all -- the various incentives -- there's no possibility of earning access to radios or televisions in the Long Term Segregation Unit. The most there can be would be twice a -- twice a month visits if they're promoted to level 1, as opposed to four time a month visits if they succeed in the special management unit. There's no opportunity for out-of-cell group activities while in the Long Term Segregation Unit. They lose that as an -- that's not an incentive. That is an incentive in the special management unit. There's no probationary period where they can be released to a general population cell block which, as the Court knows, a general population cell block is -- offers many opportunities that segregated cell blocks don't. And that's not available.
04-1739 +++$+++ 21669 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel.
04-1739 +++$+++ 21670 +++$+++ TRUE +++$+++ MR. KRAKOFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
04-1739 +++$+++ 21671 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Rovelli, you have 2 minutes remaining.
04-1739 +++$+++ 21673 +++$+++ FALSE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Very briefly, if -- if I might turn myself to just the very first point that Mr. Krakoff made about inmates being compelled to stay in the Long Term Segregation Unit until they complete their disciplinary custody. I would draw your attention to pages 40 and 41 of the joint appendix, which show that -- that the unit manager has the authority to set aside disciplinary custody, and an inmate who graduates the Long Term Segregation Unit gets all of their disciplinary custody set aside completely. So in a sense, the -- the disciplinary custody aspect is another incentive.
04-1739 +++$+++ 21674 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Rovelli, do the other prisoners know about this? I'd like you to respond to the -- to the assertion that nobody knows about this anyway, so it doesn't deter anybody.
04-1739 +++$+++ 21675 +++$+++ TRUE +++$+++ MR. ROVELLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The principal means by which other prisoners would know about it is the very effective prison grapevine, although it does appear in the -- in a chart that's appended to the handbook for the special management unit, and 75 percent of the inmates who wind up at level 2 come from the special management unit. The other thing I would point out about the effectiveness of this program, as opposed to the give-up-on-them proposition, is that even at -- even in 2002, when the program was only 2 years old, 25 percent of the inmates who had been sent there had graduated. The statistics on that are at pages 7 and 8 of our reply brief. Finally, if -- if the Court were to affirm the court of appeals, then this case has to be sent back to trial and the burden is put on the prison system to demonstrate empirically that this regulation can achieve its goals. In a sense, I've just demonstrated that it has achieved its goals, but much more importantly, the effect of that would be to totally undermine, if not void, Turner and Overton.
04-1739 +++$+++ 21676 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
04-277 +++$+++ 21680 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next, number 04-277, National Cable & Telecommunications Association v. Brand X Internet Services. Mr. Hungar.
04-277 +++$+++ 21682 +++$+++ FALSE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: In the Telecommunications Act of 1996, Congress declared that it is the policy of the United States to preserve the vibrant and competitive free market that presently exists for the Internet unfettered by federal or state regulation. The FCC implemented that clear policy directive in the order under review by concluding that cable modem service should be classified as an information service and not a telecommunications service under the Communications Act. That reasonable determination should be upheld, because it is consistent with the text, history, and purposes of the Act. The Act defines "telecommunications" as the transmission of information without change in form or substance, and "telecommunications service" as the offering of telecommunications directly to the public for a fee. Given that focus on the nature of the "offering to the public," the FCC reasonably concluded that the integrated cable modem service offering should be viewed as a whole in determining its classification under the Act.
04-277 +++$+++ 21683 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why? Why is that reasonable? I mean, why is it offered to the public if it's offered alone, but it's not offered to the public if it's offered with a tie-in? I mean, if -- you know, if I say, you know, I'm selling you a windshield alone, I guess I'm offering a windshield. But if I say, you know, you've got to buy the windshield with a car, am I any less selling you a windshield?
04-277 +++$+++ 21684 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think we would say, in that example, that you are offering windshields, per se. I mean, to give an example, carmax.com offers cars for sale over the Internet, but I don't think we would ordinarily say that they are offering windshields or steering wheels or tires for sale. Certainly, that's not been necessary construction of a regulatory regime that, say, is designed to focus on sellers of tires. It wouldn't automatically, as a matter of law, have to be applied to entities that are selling cars instead. And the same is true here.
04-277 +++$+++ 21685 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, suppose I just tie it in with windshield wipers.
04-277 +++$+++ 21686 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, again, I --
04-277 +++$+++ 21687 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You can only buy my windshield if you buy the windshield wipers with it. Am I no longer selling a windshield because I'm selling it with -- only with windshield wipers?
04-277 +++$+++ 21688 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think it would depend on the nature of the regulatory --
04-277 +++$+++ 21689 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Fifty-fifty.
04-277 +++$+++ 21690 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- regime.
04-277 +++$+++ 21691 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But don't you think that the telecommunications aspect of what's going on here is at least as important as the information aspect of it? The information is useless unless it can be conveyed.
04-277 +++$+++ 21692 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- and, by the same token, the transmission component is useless unless it offers all of the -- all of the information-services type functionality that Internet service offers.
04-277 +++$+++ 21693 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not necessarily. You could -- you can use that broadband service to go to other information providers.
04-277 +++$+++ 21694 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Your Honor, it's the -- it's the capabilities that you purchase in the integrated package -- not the pure transmission, but the other capabilities, the computer data-processing, data-access capabilities that are an essential part of that. If all you had was the transmission, with none of the other computer functionality -- if you typed in the Supreme Court's Website, for instance, supremecourtus.gov, nothing would happen, because all of the computer functionality, like the domain-name system, which is a very sophisticated, complex, distributed database involving literally millions of computers around the world, that's data processing. That's information-services capability that you use every time you type in a Website.
04-277 +++$+++ 21695 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I understand that.
04-277 +++$+++ 21696 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's not just transmission. It's much more than that. And without the -- without the computer data-processing aspects, it doesn't do anything.
04-277 +++$+++ 21697 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I agree, but the question isn't whether it doesn't do anything; the question is whether you are still offering telecommunications services to the public. And it seems to me -- look it, I offer you broadband, initially without any information function at the end of it, and you're using this broadband to do all sorts of good stuff, going where you want, getting what you want, conveying what you want. And then I change my rules and I say, "You know, in the future the only way I'm offering this broadband is if you, in addition to buying the broadband communications capacity, buy my information technology at the end of it." Have I suddenly stopped selling the broadband -- or offering the broadband to the public? I just don't think that's a reasonable --
04-277 +++$+++ 21698 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-277 +++$+++ 21699 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- use of language.
04-277 +++$+++ 21700 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- well, two points. Your question starts with, I think, an incorrect assumption about the nature of the world. The pure transmission function has not been offered to the public, to consumers, separately and apart -- again, it doesn't do anything. Consumers don't use the pure transmission functions by itself. "Internet service," by definition, includes the data-processing aspects that the Commission so found on this record, and that factual determine is reasonable and supported by the record.
04-277 +++$+++ 21701 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I was giving you a hypothetical. I --
04-277 +++$+++ 21702 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in the -- in the hypothetical, it's conceivable that a different result might be reached by the regulatory agency with authority for construing the statute and applying it to particular fact situations. But I don't think the word "offering" necessarily and always compels the conclusion that any component of an integrated offering is also separately being offered within the meaning of the statute. It depends on the purposes of the statute, as construed by the regulatory agency. "Offering" is ambiguous. And, therefore, what the agency has done here is reasonable. And it's supported, I would add, by the consistent pre-1996 regulatory approach in this area, which all parties agreed Congress incorporated into the 1996 Act.
04-277 +++$+++ 21703 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if you do the same combination over telephone lines, you say they are -- they are selling --
04-277 +++$+++ 21704 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor --
04-277 +++$+++ 21705 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- offering to the public communications service.
04-277 +++$+++ 21706 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's because the telephone companies have always offered a standalone transmission component which other -- which other ISPs can utilize. They've done that because of the preexisting regulatory regime. They've always made the separate offering; therefore, it is a telecommunications service.
04-277 +++$+++ 21707 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What bearing does history have upon the definitional question of whether, when you sell a bundled offering of information technology and communications, you are selling communications?
04-277 +++$+++ 21708 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor --
04-277 +++$+++ 21709 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ With respect to the telephone long-lines, you say, yes, you are; and with respect to cable, you say, no, you aren't.
04-277 +++$+++ 21710 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it's certainly not unusual for this Court, in construing a statute, to look to the regulatory history that led up to the enactment of the statute, particularly where it's clear in the legislative history that Congress was in -- was essentially borrowing from the pre-1996 regulatory definitions, the definitional scheme that the Commission adopted in 1980 in its Computer II report. All parties agree that that definitional framework forms the foundation for the very definitions at issue here. That's undisputed.
04-277 +++$+++ 21711 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Hungar, what is the tentative decision the FCC has taken on the DSL regulation?
04-277 +++$+++ 21712 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the FCC has tentatively concluded that when a telephone company makes an integrated offering of the DSL transmission capacity with the Internet service, as a combined offering to consumers, that, tentatively that is an information service, precisely the classification that you --
04-277 +++$+++ 21713 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Even though --
04-277 +++$+++ 21714 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- read here.
04-277 +++$+++ 21715 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- telephone lines have always been subject to common-carrier regulation.
04-277 +++$+++ 21716 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. And even though -- when a telephone company is making a separate standalone offering of just the pure DSL transmission capacity, which is useful only to ISPs, to Internet Service Providers, not to consumers, that that would be viewed, has traditionally been viewed, as a common-carriage offering, because it's pure transmission. But when it's a bundled -- or when it's an integrated offering -- again, this goes back to 1980. This very issue, Justice Scalia, was addressed by the Commission in 1980, and it said, if the offering is limited to pure transmission, it is basic telecommunications, basic service, the precursor to telecommunications service; but if you add any computer functionality to the offering, then it is not basic, it is enhanced service. They said that at paragraphs 93 to 97 of the --
04-277 +++$+++ 21717 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I understand what --
04-277 +++$+++ 21718 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Computer II order.
04-277 +++$+++ 21719 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- they're saying, but they're doing it all on policy grounds. This definition means this, because that produces a good result. With respect to telephone lines, they say, yes, bundled is, or it isn't, depending upon whether we like the result it produces.
04-277 +++$+++ 21720 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
04-277 +++$+++ 21721 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It just doesn't seem to --
04-277 +++$+++ 21722 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It depends on the nature of the offering. If the entity is offering -- if cable companies, tomorrow, start offering pure cable transmission on an -- on a nondiscriminate basis, that would regulated as a telecommunications service. But what the Commission has always said is that you look at the offering as a whole, and if it's a -- an integrated offering that encompasses not just telecommunications, but data-processing, and computer-type services, as well, it's in the enhanced or information-service category that -- the Commission said, in 1980, "We're doing this, in part, because it's not clear -- it's clear that Congress didn't intend, in the 1934 Act, to extend regulation to this new -- this novel, new type of intermingled service, and it would be inappropriate, we think, to try and extend the Act to that, for a number of reasons, including that it's very hard to draw lines between which is -- which has more of a communications versus data-processing component. They had tried that, and concluded that it was unworkable." And so, they drew the line. Basic transmission, pure transmission, if the offering is limited to that, it is on the telecommunications service, or basic-service line; if it contains the computer-processing capabilities, data acquisition and retrieval and the like --
04-277 +++$+++ 21723 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it seems to be saying, because the cable companies do not offer separate telecommunications service, they don't have to offer it.
04-277 +++$+++ 21724 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-277 +++$+++ 21725 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, it just -- it's almost question-begging. It's peculiar.
04-277 +++$+++ 21726 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Your Honor. It's only -- it only -- it's only question-begging because the Respondents have attempted to mischaracterize or misdescribe what is going on here. The rule is, if you are a common carrier, as the telephone companies are, and, in 1980, the FCC was regulating in an environment when there was only one avenue into the home, one communications avenue, the telephone line, and they said, "Under these circumstances, telephone common carriers are not going to be allowed to escape Title II regulation completely by offering enhanced services, if they can offer an enhanced service, an intermingled -- integrated transmission and computer data-processing service, and that service, as a whole, when it's offered, will be unregulated, because Title II does not extend to those types of integrated service offerings." They said, "However, if you -- if it is a telephone common carrier that's making that offering, a facilities-based, typically-monopoly common carrier, they will have an obligation to also make a standalone offering of transmission under Title II, because they were telephone -- traditional common carriers." Cable companies are not in that category. They have not traditionally been --
04-277 +++$+++ 21727 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Did you say -- you say that the FCC is changing its view. It has tentatively changed its view. So it will bracket the telephone companies with the cable companies.
04-277 +++$+++ 21728 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, actually, that's an important point, Justice Ginsburg. The FCC has never said that an integrated offering of DSL that -- DSL Internet service, the combined integrated offering, the analog to what we have here, in the cable context -- the FCC has never said that that is not an information service. They have -- and they have tentatively concluded now that it is. What they have said -- what they said in the 1998 order that Respondents cite was that the telecommunications -- the telephone companies are already offering DSL on a standalone, pure-transmission basis to other competing Internet Service Providers; therefore, it is a telecommunications service. Indeed, it was undisputed that it was a telecommunications service. And, again, the reason they were doing that, we assume, is because the preexisting Computer II and Computer III framework required the telephone carriers to make that standalone offering. But the Commission has not said the integrated offering is also a telecommunications service, and it has now tentatively concluded that it is an information service, in keeping with 25 years of regulatory history that --
04-277 +++$+++ 21729 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What would be left in the common-carrier category?
04-277 +++$+++ 21730 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, any standalone, pure-transmission offering, including, under the Computer II rationale, to the extent the Commission adheres to it -- and it hasn't overturned it yet; it's considering the extent to which it should create an exception in the DSL context -- but under Computer II, a basic, traditional common carrier cannot get away -- cannot get out of Title II regulation by offering an integrated offering. They will also have to make the standalone offering, unless and to the extent the Commission determines that that's not necessary; for instance, because the enhanced or integrated -- information-service market is sufficiently competitive that it's not necessary and there are adequate alternative --
04-277 +++$+++ 21731 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's wonderful policy --
04-277 +++$+++ 21732 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- communications pipelines.
04-277 +++$+++ 21733 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that's wonderful policy, but I don't -- what I'm still waiting to hear is how you get that out of the definitions, which is the lever that the Commission is using to implement this good policy. It is saying, in some cases, that a bundled offering is an offering of telecommunications; and, in other cases, it's saying a bundled offering isn't. And the reason, you say, is not because of the nature of the thing, because of the definition, it's because you tell us it has good consequences in one case, and doesn't have good consequences in the other.
04-277 +++$+++ 21734 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I'm sorry, but --
04-277 +++$+++ 21735 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's not my understanding --
04-277 +++$+++ 21736 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's --
04-277 +++$+++ 21737 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- of how definitions work.
04-277 +++$+++ 21738 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Let me try to clarify what the Commission's position is. The Commission has never said, that I am aware of or that Respondents have pointed out, that the integrated -- bundled, if you will -- the integrated offering of transmission plus Internet service functionality is a telecommunications service. They have never said that. They have said that some companies, telephone common carriers, will be required to make the separate offering, but it is not correct that the integrated offering is, itself, going to be classified as a telecommunications service. It's classified --
04-277 +++$+++ 21739 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So it's --
04-277 +++$+++ 21740 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- as information.
04-277 +++$+++ 21741 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- in effect, it's the unbundling requirement which is your answer to Justice Scalia's -- Why should that make a difference? I mean, you could just as well make an unbundling requirement with respect to cable.
04-277 +++$+++ 21742 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You could. And, in fact, the Commission is -- has issued a notice of proposed rulemaking and an invitation for comment in the order under review here to consider whether it should make such a requirement under its ancillary Title I authority in this context, and what -- and, if so, to what extent?
04-277 +++$+++ 21743 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the reason for a distinction, at least at the present time -- the reason for the reasonableness of the distinction at the present time, as a source of applying this definition, is history, basically.
04-277 +++$+++ 21744 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ History and, not unrelated to that, the fact that the cable companies have not traditionally been regulated as common carriers under the --
04-277 +++$+++ 21745 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yeah.
04-277 +++$+++ 21746 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Title II of the Act. Yes, that's correct. And then just one final point, if I may -- Justice Scalia, I think this also goes to your question -- Respondents are the ones who are being inconsistent, and that -- the states, for instance, they suggest that, "Well, if" -- they say that, "Well, cable modem service should be regulated as a telecommunications service, in part." But, of course, traditional information service providers, ISPs, should not be; they're pure information service, even though ISPs also provide transmission. They provide telecommunications. Information service -- excuse me -- Internet service does not work unless you have transmission from wherever the telephone call goes into the central office, and it has to be transmitted from there to the Internet Service Provider's point of presence on the Internet, and from there out onto the Internet. And Internet Service Providers either own or lease that transmission capacity and offer that as part of the bundled offering that they make. So every Internet Service Provider would be a telecommunications carrier under their position, and that is contrary to what the FCC said before the '96 Act, and it's contrary to what Congress said in the 1996 Act. They said --
04-277 +++$+++ 21747 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They claim that that's by toleration of the FCC. I was going to ask them about that, don't worry. [Laughter.]
04-277 +++$+++ 21748 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If I may reserve the balance of my time.
04-277 +++$+++ 21749 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Very well, Mr. Hungar. Mr. Cappuccio, we'll hear from you.
04-277 +++$+++ 21751 +++$+++ FALSE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: Let me begin by trying to answer Justice Scalia's question. The question here, Justice, is, Are we offering two products, or are we offering two ingredients that come together to form a separate product? And I would submit that if you go back and read paragraph 120 of the Computer II order, 1980, that's exactly what Congress said was happening. What Congress said is, when you take -- not Congress, I'm sorry; the FCC, of course -- when you take the communications component and the data-processing component and combine them, they are ingredients into what is a new offering, and a new and unregulated offering. They said, "We can't separate them. It's not useful to try to separate them. And we view them as two ingredients, forming a product that is a distinct product."
04-277 +++$+++ 21752 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is the -- what is the data-processing part?
04-277 +++$+++ 21753 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the case of cable modem service, Your Honor, it's a number of things. It's the ability to, for example, retrieve information from a server that somebody has on the Web --
04-277 +++$+++ 21754 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So I guess, on that one, if, in fact, you had a telephone system, and, at the other end of the wire, Joe Smith, your friend, had recorded a message, and when you rang the call, the service simply picked up the message and played it to you, wouldn't it still be a telephone system?
04-277 +++$+++ 21755 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think in your situation -- in the hypothetical you give, Your Honor, that would be somebody using just a regular transmission-only path to hear what the other person --
04-277 +++$+++ 21756 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And how is this different?
04-277 +++$+++ 21757 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because here, in the example that I used, for example -- it's certainly not the only one -- it is the capacity to retrieve information that is stored otherwise. And that follows, Your Honor --
04-277 +++$+++ 21758 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Information that other people have stored otherwise?
04-277 +++$+++ 21759 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. And not -- and not necessarily --
04-277 +++$+++ 21760 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why isn't that even more telecommunications than my answering service?
04-277 +++$+++ 21761 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-277 +++$+++ 21762 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You know, I pick up my messages.
04-277 +++$+++ 21763 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I would say, Your Honor, for one thing, it fits squarely within the definition of information service, which says --
04-277 +++$+++ 21764 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, yes, of course it does, and so does my answering service.
04-277 +++$+++ 21765 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-277 +++$+++ 21766 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I got -- what about the next one? You were going to -- what I want to do is write down a list --
04-277 +++$+++ 21767 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
04-277 +++$+++ 21768 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- of those things that are not telecommunications.
04-277 +++$+++ 21769 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's the ability to engage in -- to use your e-mail, it's the ability --
04-277 +++$+++ 21770 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the ability to engage or use my e-mail is an ability to access messages that other people, who don't work for you, have left for me. Now, again, I keep thinking of my answering machine --
04-277 +++$+++ 21771 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-277 +++$+++ 21772 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- and it doesn't seem very different.
04-277 +++$+++ 21773 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-277 +++$+++ 21774 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, anyway, what's the third one?
04-277 +++$+++ 21775 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's anything that allows you to browse the World Wide Web and to -- and to retrieve information from the World Wide Web.
04-277 +++$+++ 21776 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, indeed.
04-277 +++$+++ 21777 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-277 +++$+++ 21778 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What it is, is a system where I pick up the phone, and what my phone does is -- let's say it had the ability to survey a number of possible people who wanted to talk to me. Would that suddenly change it from a phone to a computer or an information system?
04-277 +++$+++ 21779 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
04-277 +++$+++ 21780 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because the other people are leaving the information; it's not the phone that's doing it.
04-277 +++$+++ 21781 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the ability to retrieve information that is stored somewhere out on a server is not the raw transmission functionality. It is more than that. It is what the Congress has said it is, it is the ability to retrieve information. It is not simply sending bits over a line and having those bits not changed and not interfered with. When you retrieve something from a server, you have to take it in form it is on the server, you have to then put it through the transmission system, and you have to reconvert it back into what you want to see. It's an interactive process that is more than just sending information.
04-277 +++$+++ 21782 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Rather like when I phone Europe, and they take the message and turn it into electronic packets, and they send it all over the world and on computers and so forth, and it comes back to me eventually, sounds a lot like my brother-in-law. [Laughter.]
04-277 +++$+++ 21783 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yeah, I guess -- look, Your Honor, I am not disputing that an information service has a component of it that's communications. It may, indeed, have a component of it that's communication. But what the FCC said in Computer II is that when you combine the -- you combine the communications with, for example, the data-retrieval function, that that combination of things is no longer the two separate products, it is a new enhanced service that is beyond Title II. And, Justice Scalia, part of the evidence that these are not two separate products is, if they were, then Congress never could have said if enhanced services were outside of Title II. Computer II would have to be wrong and overruled, even though it's now 20 --
04-277 +++$+++ 21784 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The FCC --
04-277 +++$+++ 21785 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yeah, I'm sorry, I keep saying Congress; I meant the FCC. The FCC could not have said that, because it would have been forced -- if, as the theory goes, the enhanced service has in it the separate product of communications and has a separate status, then they wouldn't have been able to take it out of Computer II. But let me suggest, stepping back for a second -- and, by the way, I should add that in this case, in the paragraph 39 of the order under -- below, the FCC said the two were not separable. Okay? I understand that to mean they are ingredients intertwined, they are not separate products. But the basic thing that the agency did here was to decide which of two things is happening. Are these two separate products? Is this communications and Chicken McNuggets being bundled together? Or are these two ingredients that are so interwoven, as they said in Computer II, as to form a distinct product? -- is a classic example of what an agency does, and it's really not one that this Court, I think, would be likely to secondguess. It is, indeed, in fact --
04-277 +++$+++ 21786 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the -- I mean, I think the difficulty that we're having is that it says it in the cable context, and then it doesn't say it in the wire context. And you can say it just as intelligibly in the wire context.
04-277 +++$+++ 21787 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yeah.
04-277 +++$+++ 21788 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's just that you haven't been saying it.
04-277 +++$+++ 21789 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Let me try to clarify that, Justice Souter. The reason why DSL meets the definition of "telecommunications service" and we don't is because the telephone companies do, in fact, provide the transmission-only component. Now, the reason they do that, Justice Souter, is, as Mr. Hungar said, historical, though it wasn't without basis in reasons in history, but they do, in fact, provide it separately. They do, because Congress required them to do it through a separate subsidiary in Computer II. There were reasons for that. They wanted to avoid cross-subsidies, they were the only platform, they were worried about discrimination.
04-277 +++$+++ 21790 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So is that really the nub of the difference? It's Congress that is requiring them to do it separately, and Congress doesn't have a comparable requirement with respect to cable.
04-277 +++$+++ 21791 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would -- I read the statute this way. Congress takes the world as it comes. If you are providing it as a common carrier, then you fall within -- you're providing it separately -- then you fall within the definition of "telecommunications service." The DSL guys are. If you are not, and we are not, then you don't fall within --
04-277 +++$+++ 21792 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yeah, but that begs the question.
04-277 +++$+++ 21793 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I --
04-277 +++$+++ 21794 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It begs the question.
04-277 +++$+++ 21795 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It just says that it's for someone else to decide the second prong of the NARUC test, which is, Should you be compelled? Okay? The Congress doesn't decide that. It's crazy to think that Congress decided, forever and ever and ever, that everybody who came in would be a common carrier, no matter what the market looked like. Congress, instead, took the world as it came, and it relies on the FCC to decide whether you should be compelled, under the second prong of NARUC, to be a common carrier. They have declined, in this case, to extend that to us. That, I would say, is -- you know, that's entitled to the utmost deference. It's a -- deciding not to extend their own rules. And there are perfectly fine reasons for that. The reasons that pushed them to do it in 1980 to the telephone companies, about cross-subsidies, have no application to us. And the discrimination justifications back then, when there was only one platform, had no application to us. Now, you may say, Is this an odd result that it comes out differently at the end? Well, it is, and it is being dealt with. The FCC is in the process of reconsidering, in the wireline order, Wireline NPRM, whether it still makes sense to use Computer II to impose a common-carrier obligation, an obligation to do it separately, to provide the communications separately, on the telephone companies. If they decide that no longer is the case and that they don't have to provide it separately, and the telephone companies stop doing that, they will no longer fall within the definition of "telecommunications service" under the statute. In other words, the statute asks, What are you, in fact, doing? Okay? There are two ways you could be providing it separately: if you choose to it or if you're forced to do it. We've done neither. The telephone companies have been forced to do it. Congress has -- and they've decided we shouldn't be forced to do it, and they're entitled to deference on that.
04-277 +++$+++ 21796 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Basically, you're saying interstitial lawmaking, like other kinds of lawmaking, can be reasonable without being absolutely consistent at a given moment.
04-277 +++$+++ 21797 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct, Your Honor.
04-277 +++$+++ 21798 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That still doesn't explain -- it still doesn't explain, to my satisfaction, why it becomes a different product --
04-277 +++$+++ 21799 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay, let me try --
04-277 +++$+++ 21800 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- a different product when you're selling it separately, and it is not a different product when you're not selling it separately. I mean --
04-277 +++$+++ 21801 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because, Your Honor, it's whether the words "offering telecommunications" are ambiguous. If I -- if I bake cakes, and someone was to say, "If you offer cakes, you don't offer butter," there's nothing in the English language, Justice Scalia, that makes that unreasonable, that a person who offers cakes to the public does not offer butter to the public. And if you believe that example is correct, then you have to uphold the FCC, because what it says is, the offer of the final product is not offering, to the public, the ingredient.
04-277 +++$+++ 21802 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Unless you also sell butter.
04-277 +++$+++ 21803 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Separately.
04-277 +++$+++ 21804 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If you sell butter --
04-277 +++$+++ 21805 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Separately.
04-277 +++$+++ 21806 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- separately, then when you sell a cake --
04-277 +++$+++ 21807 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Your Honor --
04-277 +++$+++ 21808 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- you're selling butter.
04-277 +++$+++ 21809 +++$+++ TRUE +++$+++ MR. CAPPUCCIO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The ILECs do, we don't.
04-277 +++$+++ 21810 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Cappuccio. Mr. Goldstein, we'll hear from you.
04-277 +++$+++ 21812 +++$+++ FALSE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The Court will want to have handy, I think, the red brief of the Respondents Earthlink, et al., because I will repeatedly take you to the text of the statute, which is reproduced at the appendix to that brief. Mr. Chief Justice, cable modem service refers to the bundled sale, purely for marketing reasons, of two different things: highspeed telecommunications over cable wires, and computer software, like e-mail, that you can access over that highspeed telecommunications. The Commission admits -- and it is a critical admission -- that the standalone sale of the telecommunications piece is a telecommunications service, notwithstanding that it is on cable wires rather than telephone wires. The Ninth Circuit correctly held that it makes no difference that cable companies market the telecommunications with e-mail and the like. Congress cannot have intended to empower carriers to deregulate themselves through the nicety of adding some further feature to their common carriage. And I think we can demonstrate that through the text of the statute. I'd like to take you to two provisions at the outset. The first one is on 2a of the appendix, and it goes, Justice Souter, to the question of whether there's some difference that Congress has adopted between telephone wires and cable wires. And the answer to that question is, no. Subparagraph 46, the definition of "telecommunications service," this is the provision that leads to common-carrier regulation. The term "telecommunications service" means "the offering of telecommunications for a fee directly to the public or to such classes of users as to be effectively available directly to the public" -- and here is the critical clause -- "regardless of the facilities used." Congress made quite clear it was not drawing any distinction based on cable wire versus telephone. I'd like to point you to two other provisions. They are not reproduced, because they're in the cable -- separate cable provisions, but they will be relevant to your question. That is 47 USC 541(d) and 522. Those specifically contemplate that cable companies will be common carriers. Now, that's the answer to the question, Is there a difference between a cable wire and a telephone wire? Let me now step back to what the FCC said in its ruling. The FCC backed into its decision here, and it will turn on the definition of "information service," which will be on 1a of the appendix. It said this. Look, cable modem service fits within the definition of an "information service." It's this bundled thing. And we construe the definition of an "information service" to be mutually exclusive of a telecommunications service. And that is legal error. And let me take you through the definition. Subparagraph 20, information service. The term "information service" means the offering of a capability for, in a variety of things -- generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information -- via telecommunications. That is not language of exclusivity; it is language of dependence. There has to be telecommunications involved. If you all came to the court today via car, or I came via metro, there was a car or a train involved. Now, I want to contrast that with another series of statutory provisions. And what these provisions do is demonstrate, beyond peradventure, that Congress address the problem you are now facing. It said, "We recognize that there are definitional provisions that might otherwise fall within the definition of 'common carriage.' And if we don't want it to be a common carrier, we will tell you expressly." There are four of them. They are reproduced. Again at 1A, the definition of a "common carrier." It's the exclusion that appears at the bottom of the definition, three lines from the bottom, "But a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier." There's nothing like that for "information services." There's going to be one specific table that I think will be particularly illustrative. The next one, the definition of a "telecommunications carrier." It's at 2a. There's a specific exclusion. Telecommunications carrier, these are the people that are common carriers. The term "telecommunications carrier" means "any provider of telecommunications services except" -- so Congress drew this out -- "except that such term does not include aggregators of telecommunications services." The next two, and they are the final two, are at 8a, one that deals with private mobile services -- it's denoted subparagraph 2 -- "A person engaged in the provision of a service that is a private mobile service shall not, insofar as such person is so engaged, be treated as a common carrier for any purposes under this Act." There's a definitional category of "private mobile service." We don't want it to be common carriage. And the final one is the cable one, and I think it's very illustrative -- right below that, subparagraph c -- "Any cable system shall not be subject to regulation as a common carrier or utility by reason of providing any cable service." Nothing at all about an information service. Justice Scalia, you are quite right, this is a case about a statute, and the language has none of the indications that the Commission is relying on here.
04-277 +++$+++ 21813 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it does have this, that what -- if you look at the definition of "telecommunications," it means "transmitting information without change in the form or content of the information." Now, in respect to some of their services -- not, maybe, a lot, but in response to some -- they certainly change the content and the form. E-mail, for example, does. And there are a number of others that do. So the language, says the FCC -- I look to "telecommunications service." They provide telecommunications service sometimes, and sometimes this other thing, as well, and it's all bundled. And we read the word "offering" to mean "offering separately." And so, therefore, a person who offers only a bundled service is not a person who's offering a telecommunications service. That's how I read it, as trying to understand their argument. And it seemed to me that argument is logical, and it fits the language. Now, why is it -- are -- do you agree that it is logical and fits the language, and at least get them that far, or not?
04-277 +++$+++ 21814 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
04-277 +++$+++ 21815 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No.
04-277 +++$+++ 21816 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right, let me take you through both parts. Telecommunications -- we're going to talk about the definition of "telecommunications" and what it is to "offer." They are wrong in suggesting that there is not telecommunications here, and I can prove it two ways. The first is, remember, "telecommunications" is the phrase in the definition of "information service," as well. Let me take you back to it.
04-277 +++$+++ 21817 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ (Inaudible)
04-277 +++$+++ 21818 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ "Information service" -- I apologize -- is at 1a. The term "information service" means "the offering of a capability for (inaudible) via telecommunications." They're categorizing this thing as an information service, so they have to be acknowledging there's telecommunications involved. So, obviously, cable modem service --
04-277 +++$+++ 21819 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, no, but they're saying if telecommunications and something else is involved, and that's what you offer, you are not offering a telecommunications service. That's their definition of "offer," as "offer telecommunications service separately." It would be obvious, for example, if you service were by phone, to connect with the Library of Congress and you owned the Library of Congress, as well as owning the dedicated line. Then what you're doing is selling information across the line. So they say that's what they're doing, but just not as much.
04-277 +++$+++ 21820 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me explain why I answered them separately. Because the Commission's argument -- if this -- Chenery -- you have to review a Commission decision -- the Commission's argument was that there was no telecommunications involved. This is a different argument from the fact that there is no offering. That appears in the Solicitor General's reply brief. So I wanted to bracket, set aside. It says, "That can't be right. The Commission is ruling based on a pure legal error." Let me turn to "offering." We're the only ones that have provided a straightforward dictionary definition of "offering." An "offering" is to make something available. And you say, "All right, is the bundle making available the telecommunications?" The answer to that question is, yes. At the very least, it's yes in the context of this statute, which is a common-carriage statute. Imagine the following hypotheticals, Justice Breyer. Pick any form of common carriage you want. If someone said, "I'm not just giving you the railroad bridge, but I'm also selling you -- you have to buy from me the train that's running on it and the grain that's in the train." You couldn't avoid common carriage by forcing your customers to buy the unified package together. The second point is that, remember, the great, great, great majority of communications have nothing to do with their information services. I have cable modem service. Lots of people do. What do I do? I get up in the morning, and I go to newyorktimes.com, I go to supremecourtus.gov. You'll be pleased. I -- [Laughter.]
04-277 +++$+++ 21821 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that has nothing to do with what they're offering. I have cable modem service. I don't use the e-mail program that's offered to me by Star Power. I have my own e-mail program. It's true, they've given me some extra stuff, but one thing that you know for sure is that doesn't deny that they have given me, fundamentally, the capability to send the information back and forth. Nothing changes. And I can illustrate this for you. Remember the concession that I started with. They admit that if they sell it alone, then that's a telecommunications service. They say it makes it different -- a difference that you market them together. But if I get one bill for that or two bills for that, it works just the same. I send the information back and forth, over and over again. There is absolutely no difference. Now, Justice Souter, I want to come back to history, because that's -- seems to me the leg that they hope that they have to stand on. I certainly don't think they have a textual leg to stand on. Let me make some points about the history. The context for this is the Computer Inquiries and the modified final judgement under AT&T, and they are simply misdescribing the history. And I will take you to the actual quotes for what happened. First, let me take you to the definition of a "basic service" and an "enhanced service" under the Computer Inquiries, and that is reproduced at 23 of our brief. And the point I'm going to make through this is -- what the Commission said over and over and over again under the Computer Inquiries -- is this, if you have a telecommunications piece, we're going to call it a "basic service." If you add information processing on top of that, we're going to call the whole thing an "enhanced service." So far, everybody's on the same page. But the piece that they're leaving out is that they made different decisions, policy decisions, Justice Scalia, about how, ultimately, to regulate them, but the definition never changed. If you added the enhancement on it, just like you add the e-mail on top of it, you still had the basic service. So here's the quote. It's at 23 of our brief. "We find that basic service is limited to the common-carrier offering" -- they're picking -- Congress is picking up precisely the words in the Computer Inquiries -- "of transmission capacity for the movement of information; whereas, enhanced service combines basic service with computer-processing applications." The basic service remained. And then the Commission and the D.C. Circuit confronted just the problem you are. What happened is that providers, under the Computer Inquiries and under the modified final judgement, tried to combine the two things and say, "We're no longer regulated." They said, "Yeah, I know we had telecommunications, but now we want to add something onto it." And I can take you to what the courts said and what the Commission said, and that is at pages 24 to 25. And I think it's exactly what Congress would think if it were confronted with this problem under the plain definitions. The second block quote on 24. This is when the Commission was confronted with this problem. It said that the argument that they're accepting now would allow circumvention of the Computer II and Computer III basic enhanced framework. AT&T would be able to avoid Computer II and Computer III, unbundling --
04-277 +++$+++ 21822 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, can't the Commission change its mind, Mr. Goldstein?
04-277 +++$+++ 21823 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, on this question, the answer is, no, because Mr. Hungar has conceded, and the Commission conceded below, that Congress was adopting a definitional framework. I agree, Mr. Chief Justice, that the Commission can change its policy judgement about how it wants to regulate within the definitional framework that Congress adopted. So you've pointed me to a critical point, and that is to reinforce --
04-277 +++$+++ 21824 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I'm glad I did. [Laughter.]
04-277 +++$+++ 21825 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and that is to reinforce this. Our position is that the Computer Inquiries and the AT&T MFJ had definitions: What's a basic service? What's an enhanced service? Congress adopted those for the purposes of the definition of a "telecommunications service" and an "information service." Now, you can make policy judgements about how to regulate, although you're going to have to do it under the forbearance regime adopted in a response to Justice Scalia's opinion for the Court in MCI. But, nonetheless, the definitions are what they are. This is a statute that's being interpreted. So, let me come back. So, what did the Commission say under those definitions? AT&T would be able to avoid Computer II and Computer III unbundling and tariff requirements for any basic service that it could combine with an enhanced service. You know, we've got the telecommunications, like we're going to tack e-mail onto it. This is obviously an undesirable and unintended result. The D.C. Circuit, faced with precisely the same question under the framework that Congress intended to adopt, that is on the next page, on page 25, right below the block quote. The block quote sets up the problem. The D.C. Circuit, however, rejected that conclusion, the one that's being proposed here by the Commission, as a strained interpretation of the language of the decree that could not have been intended because it would allow the BOCs to, quote, "create an enormous loophole" in the core restriction of the decree. So, Justice O'Connor, this comes back to your point in the first half of the argument, and that is, it becomes completely circular. If the point is that you will only be subject to common-carrier regulation when you decide to provide telecommunications service, nobody ever will. Everybody will always bundle.
04-277 +++$+++ 21826 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but they say we have the authority, if they -- if there is a bundled service, by looking at the competitive necessity, market power, the need to protect consumers, to insist that an offeror of bundled service split the bundle and then be regulated.
04-277 +++$+++ 21827 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree. There are five (inaudible) where the Solicitor General, sort of, pulls the ripcord here.
04-277 +++$+++ 21828 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah.
04-277 +++$+++ 21829 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ First, they have a Chenery problem; and that is, this doesn't appear anywhere in the Commission's ruling. What they said in the Commission's ruling is that they could take a Title I information service and regulate it as common carriage. This is an entirely different animal. This is --
04-277 +++$+++ 21830 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but they're replying to your argument, and they're saying it's really not right that this means no regulation. And the reason it means no regulation is because they've long had the authority to do this, and then they cite some references where that is pretty much what the Commission said.
04-277 +++$+++ 21831 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I still this is covered by Chenery, but let's go to that. And so, here's the proposition. The proposition is that the Commission has the untethered authority to force someone to provide a telecommunications service. And my question back to the other side is, Where in the world in the statute is that? There is no textural foundation for it whatsoever.
04-277 +++$+++ 21832 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if you take them as having a broad -- if you take the statute as throwing this whole problem in the lap of the Commission --
04-277 +++$+++ 21833 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-277 +++$+++ 21834 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and then you say they have authority, broadly, to interpret this term "offer," they could give functional reasons, as in some circumstances, to interpret the word "offer" to mean "offer telecommunications separately," and, in other circumstances, because they're functional differences, to take a different position. Now, either they do or they don't. If they don't, they're being inconsistent, and that's the subject of a different legal proceeding. If they do, so be it.
04-277 +++$+++ 21835 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me deal with the premise that Congress threw this into the lap of the FCC, and also how it is they propose to deal with it, on that assumption. The answer is, they did not throw it into the lap of the FCC. The '96 Act enacted these definitions, which are very carefully calibrated, for which there is no text -- textual support. I will come back to "offering." But Congress did enact a specific provision in MCI versus AT&T. It addressed not only the concern of the majority, but also the concerns of the dissenters, that the Commission needed some flexibility. And it told the Commission how to address this problem. It said, in the forbearance procedures, "Here are the rules that you will apply in deciding to lift regulation." They're quite detailed. They're -- now, let me take you to them again -- they're at the end of our -- I'm sorry, they are at -- in our appendix, at 3a. This is what Congress said. Congress said, "We recognize the Commission needs some flexibility, but there are going to be rules, and there are going to be rules so courts can, for example, review, later on, whether or not you're actually applying what we -- doing what you want -- what we wanted you to do." And here's what the Commission has to do, according to Congress. And it's what the Commission did not do here. I'm going to start with the indented paragraphs, 1, 2, and 3, and then subparagraph b. It told the Commission to look at whether or not the former regulation is not necessary to ensure that the charges -- and skipping again -- are just and reasonable and are not unjustly or unreasonably discriminatory. Paragraph 2, they have to make sure it's not necessary for the protection of consumers, that it's in the public interest, and that the competitive effects will be positive rather than negative. The Commission did none of this, notwithstanding that Congress specifically directed them to. Now, let me then turn to the question of whether or not this is a reasonable interpretation of "offering." Now, in different contexts, I admit, it's conceivable to come up with different meanings of "offerings," but this is a context, and I think if you take any example where Congress actually -- I've given you the common carrier. I don't think the railroad could ever get away with saying it. I gave you the examples of the Computer Inquiries and the AT&T MFJ, which are on point. But take anything that Congress regulates. Take, for example, the fact that we regulate offering of cigarettes to children. Now, a merchandiser couldn't come along and say, "I'm not offering cigarettes. What I've done is, I've created a smoking service. I've taken the cigarettes, and I've put a lighter in it, and you've just got one bill that you have to pay for it." The idea that that would evade what Congress is concerned about is loopy. Think about what Congress is concerned about with common-carriage regulations. There are three principal consequences to being a telecommunications service. And imagine if any of them changed a whit, except to favor us, when you bundle the e-mail with it. First, nondiscrimination. Would Congress want you to have to charge just and reasonable rates to a competitor any less when you're selling e-mail with the telecommunications than the telecommunications alone? No. Interconnection. Would Congress want a cable modem service network to be less interconnected with all the other networks simply because it has e-mail or a Web browser on it? I don't know why, I suppose Congress would want to be more sure, because there are more messages.
04-277 +++$+++ 21836 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the Congress apparently wanted to go in the direction of deregulation here.
04-277 +++$+++ 21837 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Mr. Chief Justice, it's a fair point, and it is basically -- aside for the, sort of, nod at history, it -- Mr. Hungar started with that. And our point is that Congress told them how to deregulate, and that --
04-277 +++$+++ 21838 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what about Congress thinking, quite honestly, if they -- people do think about it. I have no idea how broadband service will be provided 20 years from now. There may be a thousand competitors. There may be wireless. People may be broadcasting it through their teeth. I don't know -- [Laughter.]
04-277 +++$+++ 21839 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- what it's going to be. But since I don't know and have really no idea whether it should or should not be regulated, because I don't know the competitive situation, let's leave it up to the FCC.
04-277 +++$+++ 21840 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It did that, but with a critical concession. It said --
04-277 +++$+++ 21841 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It sort of it did that in broadcasting, didn't it? I guess they could have written it to say that "the FCC shall regulate common-carrier communications in the public interest, convenience, and necessity," which would put the FCC in the same situation with regard to this, as it's in with regard to broadcasting.
04-277 +++$+++ 21842 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it's a very fair comparison. But also, Justice Breyer, I think -- you know, I think we're all on the same page about what Congress intended, and that is, first of all, Congress was aware of cable modem service. That's said expressly in the Court's opinion in Gulf Power. It was emphasized by the cable industry in Gulf Power itself. There is -- there are several statutory provisions that refer to cable companies being common carriage. But, Justice Breyer, what they said is this, "We have broad encompassing definitions, and that is, it's not going to make a difference if you combine two things together. But, Commission, you go make those" -- Justice Breyer, all the findings you're talking about are listed in the section 10 forbearance proceedings. Now, imagine the world as the Commission sees it. It says that forbearance applies to telecommunications service. But when it comes to things that aren't telecommunications service, it's "Katie bar the door." We don't have any rules. What kind of logical regulatory scheme is that? And that is that the Commission is constrained with respect to its expertise. But things that are information services that are outside telecommunications, it can do whatever it wants. Justice Breyer, I did want to make one additional point, and that is, again, there is a statutory provision here that addresses their claim that they can force you to provide telecommunications service, and that is the definition of a "telecommunications carrier." And it is on 2a. I read the exception, so now I'm dealing with the second sentence of the definition, "A telecommunications carrier shall be treated as a common carrier under this Act only to the extent that it is engaged in providing telecommunications services." This lines up perfectly with this Court's decision in Midwest Video. There was a constraint on what it -- what regulation you could impose on broadcasters. This one says, "You are only going to be a common carrier if you're providing a telecommunications service." But the FCC has this vision that it can, sort of, solve all the problems through its raw discretion and to force someone to provide common carriage. But the statute's very clear, if you are not providing a telecommunications service, you are not going to be a telecommunications carrier; and, therefore, you are not going to be providing common carriage. And, as I've said, I don't understand how it is, even if one looked at this particular context, you could decide that Congress thought the bundle made regulation less regulated -- less necessary, rather than more regulated -- more necessary. I want, next, if I could, to talk about the notion that you can self-deregulate, and how utterly implausible this is, how is it that the Commission could imagine that Congress created the following regime. And that is, if you want to provide common carriage, you'll be subject to this regulation; but if you don't feel like it, well, that's okay. That will render the definition of "telecommunications service" -- if you just want to tack e-mail onto the thing, that will render the definition of "telecommunications service" -- in the Internet, you're a dead letter, because who in the world would ever do it? If it's up to the regulated entity, why in the world would anyone provide common carriage? I think this has, actually, a remarkable parallel to the Court's decision in the Oneida Indian Nation case, where the Court rejected the suggestion that what you could do is -- that it would be up to the Indians to decide whether or not they would be able to get property back. This is what the Court said, "If OIN may unilaterally reassert sovereign control and remove those parcels from the local tax rolls, little would prevent the tribe from initiating a new generation of litigation to free the parcels" -- remember, they're free from all regulation at all -- "free the parcels from land zone -- local zoning or other regulatory controls that protect all landowners in the area." And then, Justice Ginsburg, the opinion goes on to talk about section 465, which is exactly like section 10 forbearance, "Recognizing these practical concerns, Congress has provided a mechanism for the acquisition of the lands. The regulations implementing section 465 are sensitive to the complex interjurisdictional concerns that arise when the tribe seeks to retain -- regain sovereign control over territory. The Secretary must consider" -- and it lists a whole series of things. And the parallel, I think, is exact. You can't have Congress enacting a scheme that tells you how to do it. Now, let me return to, then, Mr. Cappuccio's suggestion, Justice Scalia, that this is an ingredient, it's not a product. The straightforward answer is, there's no mention of ingredients or products in the statute. It says "telecommunications service." And the question under the definition of "telecommunications service" is, Are you providing telecommunications? Yeah, the information's going back and forth. Is it to the public? Sure, anybody can buy it. Is there a fee? You bet, it's kind of expensive, actually. And that's all that Congress cared about. Now, this is not a question of whether or not there's butter in a cake, because you -- it -- there are two reasons. The first is, fundamentally, the telecommunications is the same; it hasn't been "cooked" into something else. And the second --
04-277 +++$+++ 21843 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There's butter on the cake, not in the cake. [Laughter.]
04-277 +++$+++ 21844 +++$+++ TRUE +++$+++ MR. GOLDSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. The second is, the reason all those hypotheticals are -- wheels and cars and those sorts of things -- don't make any sense here is that they assume a few things. The first is, they're assuming a first sale that gets regulated. Somebody buys the butter, somebody buys the tires and gets regulated. But under their rules it's never regulated at all. The telecommunications just, poof, escapes all regulation. And the second is that, in the car example, it's because there's -- the reason it has intuitive appeal is that there's a regulatory scheme about cars. So Congress has decided how all the inputs will be regulated together. But, again, remember the consequence of sticking this into the unregulated "information services" box is, it's all gone. There's no regulation of it whatsoever. It's just not a scheme that makes any sense. If there are no further questions --
04-277 +++$+++ 21845 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Goldstein. Mr. Hungar, you have four minutes left.
04-277 +++$+++ 21847 +++$+++ FALSE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. Turning first to the question of the regulatory history, Respondents continue to rely on the fact that, under Computer II, the FCC required telephone common carriers to separate out and separately offer the basic transmission component. But, importantly, and what refutes Respondent's attempts to rely on history, Congress did not -- excuse me -- the FCC did not impose that requirement on enhanced service providers. There were entities called "value-added networks" that obtained the telecommunications functionality, bundled it together with information servicing protocol conversion-type computer functions, and offered that bundled service as an enhanced service. And the Commission said, in Computer II, "That is an unregulated enhanced-service offering, it is not subject to Title II of the Act, because we don't think Congress intended Title II, which is aimed at traditional telephone communications, to deal with this new form of intermingled integrated service." It is not regulated, even though it is true that there was a communications component. And, under Respondent's rationale, that offer or that value-added network should have been required to make it file a tariff and comply with all the regulations of Title II of the Act. And footnote 5 of our reply brief cites the orders discussing this fact. And in addition, under Computer II, the Commission required AT&T and, later, the Regional Bell Operating Companies, if they were going to offer enhanced services, to offer them separately through subsidiaries, unregulated subsidiaries, even though they were offering bundles of enhanced service and telecommunications, the telecommunications, which they obtained under tariff from their parent corporation. But the entire bundled offering was unregulated. And that's been true for 25 years. And, again, Congress, in 1996, gave no indication that it was overturning this well-established situation in which enhanced services, now information services, were not regulated. And to suggest that Congress, in an act that talks about preserving the hands-off approach to the Internet, in fact, regulated all Internet Service Providers in a way that they had never been regulated before, we submit, is certainly an unlikely interpretation of the act, and clearly demonstrates that the FCC was reasonable in rejecting that position. Justice Breyer, you asked about voicemail or similar type systems that would preserve a message. If provided by a computer functionality, that service is an information service. Voicemail is an information service. But the FCC has at least suggested that voicemail and basic telecommunications -- if a telephone company tried to offer it -- say, "We're going to offer this bundled, and we don't think it's regulated," telephone companies try that sort of thing from time to time, and then the FCC is faced with a decision, in its discretion, of whether that should be viewed as an integrated offering or, instead, as really two things that have just been added together but aren't really -- that are really two distinct services. And the FCC has suggested, in that context, that telephone service and voicemail service, even if they're bundled together, are two distinct services. And there's an important difference, I think, between that type of offering and the one here. You can use your -- even if your telephone company offers you voicemail, obviously, you -- a lot of your use of the telephone system has nothing to do with the voicemail; it's pure telephony, pure telecommunications; whereas, with cable modem service, every time you use it, essentially, you are utilizing at least some of the data- processing, computer-enhanced functionality that is being provided by your -- by your Internet Service Provider -- the domain-name system, as we discussed, caching. For instance, Mr. Goldstein says he goes to supremecourtus.gov every morning. I suspect he doesn't actually go to this Court's computer. He probably gets at least the first page off of the cache, which provided by the ISP.
04-277 +++$+++ 21848 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Hungar. The case is submitted.
04-278 +++$+++ 21852 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument on number 04-278, the Town of Castle Rock versus Jessica Gonzales. Mr. Eastman.
04-278 +++$+++ 21854 +++$+++ FALSE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice and may it please the Court: What happened here is undeniably tragic. A father shot and killed his own daughters. He was under a restraining order, so the issue for this Court is whether the order restraining Mr. Gonzales also gave to Mrs. Gonzales and her children a property interest put against the police giving Mrs. Gonzales an entitlement to the arrest of her estranged husband. More precisely, the issue is whether the State of Colorado intended to create such a property interest.
04-278 +++$+++ 21855 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Tell us how we know exactly how much discretion the State of Colorado wanted to give to the police.
04-278 +++$+++ 21856 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice O'Connor --
04-278 +++$+++ 21857 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Without a statute that uses the word shall enforce. Do we know how Colorado has interpreted that?
04-278 +++$+++ 21858 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they have in other cases, as we note in our brief, that the word shall is not always mandatory, particularly here, I think, Justice O'Connor, when we have such a backdrop of law enforcement discretion.
04-278 +++$+++ 21859 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, are there Colorado cases that tell us how we should read those statutes?
04-278 +++$+++ 21860 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not in particular on this statute. They only -- the Colorado case law on the word shall says that you have to read it in context of the entire statute. And here the word shall is used several different places pointing several different directions in the statute.
04-278 +++$+++ 21861 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So do you concede that if shall means shall, that it creates a property interest?
04-278 +++$+++ 21862 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Scalia, I do not. There is a long way between giving direction, even mandatory direction, to law enforcement and creating a property interest. I think that was the essence of this Court's holding in Sandin. And it's that distinction that even if you read shall in these statutes as requiring a particular outcome, and we don't --
04-278 +++$+++ 21863 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Eastman, would you comment on the extent of deference that we should give to the court of appeals' interpretation of Colorado while in view of what we said in Bishop against Wood?
04-278 +++$+++ 21864 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I don't think here, because it's not just an application of Colorado law here. We have identical statutes in 19 or 20 different states around the country. And what you do --
04-278 +++$+++ 21865 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the Colorado statute is the one that's controlling in this case and normally, at least according to Bishop against Wood, we defer to the interpretation of the court of appeals as the issue of state law.
04-278 +++$+++ 21866 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what you're asking is that the court of appeals that created -- that read this statute shall, without any Colorado court interpretation, and did so without any greater indication from the Colorado legislature, that it intended more than just to give direction to police. It intended to create a property interest. I understand the question from Bishop versus Wood, but I don't think we can defer to the Tenth Circuit here in creating something that Colorado did not intend to create.
04-278 +++$+++ 21867 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Of course, that's the issue, whether Colorado intended to create it.
04-278 +++$+++ 21868 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I think there is a big difference. I mean --
04-278 +++$+++ 21869 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The reading in Bishop against Wood was really counterintuitive also, as the dissenters pointed out, as you would agree, I think.
04-278 +++$+++ 21870 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and I think when you're looking at a statute such as this, that is invoking the federal court's -- I mean, what we're using is a state law to invoke federal protections. And I think it's that deference to the State that I think is more critical. And I don't think you can allow the federal courts to make that decision when Colorado itself has not been -- has been as ambiguous as it is. I think we need a clearer statement.
04-278 +++$+++ 21871 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Did you suggest to the federal court that it certify the question of the meaning of Colorado law to this Colorado Supreme Court?
04-278 +++$+++ 21872 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, we did not, because I don't think the statute gets us over the hurdle to make that even necessary. There is nothing in this statute that is intended -- that uses the language of property interest or entitlement. I think if this Court would look to its decision in Gonzaga, for example, in alaogous context --
04-278 +++$+++ 21873 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wait, wait. I thought we were just talking here about state law as to whether shall means shall. Do you think that it's a matter of state law whether, if it does mean shall, it creates a property interest for purposes of the Federal Constitution?
04-278 +++$+++ 21874 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Scalia, I don't.
04-278 +++$+++ 21875 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You don't concede that that's a state question at all?
04-278 +++$+++ 21876 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. And what we're talking about --
04-278 +++$+++ 21877 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, isn't that what we squarely held in Bishop?
04-278 +++$+++ 21878 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what we have to look at is whether, first, the State, under Roth, intended to create a property interest rather than just giving mandatory direction to its officers. And I think the critical question there is what the default rule ought to be on a statute that is not clear on that question. And I think Roth tells us that for purposes of federal constitutional law, the default cannot be that we assume the State created a property interest, at least in this kind of nontraditional property interest. And I think it's important to focus on what kind of property interest we're talking about.
04-278 +++$+++ 21879 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose shall does mean shall. Fine. But you might have a statute that says the fire department shall respond to fires, the police department shall respond to crimes, the Army shall respond to attacks. Even the word shall doesn't necessarily mean that this is the kind of interest that, like property, the Duke of Rutland relied upon Blackacre, that welfare recipients rely upon continuing to receive money. What is it about this that makes it like property, even if shall does mean shall?
04-278 +++$+++ 21880 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, I agree, and the difference between even mandatory language directing law enforcement to behave in a certain way is a far cry from actually creating a property interest in Mrs. Gonzales herself. This Court in Sandin held that in the prison context, and I think the analogy in this Court's implied right of action cases such as Gonzaga is a good one. In order to take a statute and try and find a property interest, we would want to have it phrased in terms of the beneficiary rather than the person restrained. We would want to see an actionable entitlement created. None of that is here. And I think that --
04-278 +++$+++ 21881 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if you compare it to -- this is a court order and it's enforceable. There is no question about that, is there? This is a court order that enforcement officials carry out. How does it differ from, say, a money judgment and executing -- levying execution on property? Judgment creditor says, here is my judgment, marshal, sheriff, go out and find some of the defendant's property.
04-278 +++$+++ 21882 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Ginsburg, you know, the analogy we cite in our reply brief and the U.S. Marshal Statute, 42 U.S.C. 1990 that says that there is a right in the beneficiary to have a warrant issued. And if the marshal refuses to do that, that he can be challenged and held to a thousand dollar fine for the benefit of the person whose arrest warrant he was supposed to serve. Now, even that doesn't quite go far enough because there is not a private right of action by the beneficiary about a warrant to bring the suit directly. But at least that kind of statute is getting closer to acknowledging a property interest. This is enforceable against Mr. Gonzales, and Ms. Gonzales could go back in and get a contempt proceeding. I know here, after the fact, that's not going to do any good. But the restraining order is issued against Mr. Gonzales. It's not issued to the police. And all we have then is how its violation by Mr. Gonzales will be enforced.
04-278 +++$+++ 21883 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But isn't that true of all injunctive orders, they're not issued to the police. And yet the police -- don't the police have an obligation to enforce that?
04-278 +++$+++ 21884 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To my knowledge, we've never held that the police have an actionable obligation to enforce them. But the State --
04-278 +++$+++ 21885 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But wouldn't you concede that in the case of the injunction in which there is a specific order in relation to a specific respondent, that the police have much less discretion than they would have when there is in effect a general statute saying, respond in these kinds of situations?
04-278 +++$+++ 21886 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, they still have a great deal of discretion here. The statute says reasonable means of enforcement.
04-278 +++$+++ 21887 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In the case of the statute that we're talking with, but they don't have that kind of discretion, do they, in Justice Ginsburg's example? What I'm getting at is, if you're going to take the example that Justice Ginsburg has given you as equivalent to the example that we have before us, I think you're fighting uphill and I don't think you have to do that.
04-278 +++$+++ 21888 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, let me take your invitation, then, and respond back. I mean, if the terms of the restraining order cut out all discretion whatsoever and that they specifically are written in terms that the property interest creates an entitlement in the beneficiary of the restraining order, as against not just the person restrained or the person whose property is going to be attached, but an entitlement to enforcement by the police itself, then I think we would be on the step toward creating a property interest. The Colorado statute here does none of those things. It continues to give the police a great deal of discretion. Reasonable means --
04-278 +++$+++ 21889 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But is discretion -- does discretion on the means to use include discretion to do nothing?
04-278 +++$+++ 21890 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it includes a finding of probable cause. It includes a -- seek an arrest or make an arrest or seek a warrant arrest when the arrest is impractical. If the arrest is impractical, such as when --
04-278 +++$+++ 21891 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But were any of those determinations made here?
04-278 +++$+++ 21892 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we don't know. We don't know because this case comes up here on a motion to dismiss. All we have are the allegations. The allegations are that they didn't enforce the restraining order, all right? But we don't know whether it's because they made a determination of no probable cause, whether there was probable cause but because he wasn't in the jurisdiction --
04-278 +++$+++ 21893 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So are you requesting that there are insufficient fact findings here, so it should be returned --
04-278 +++$+++ 21894 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Ginsburg, because what we're saying is that there is not a property interest at all and it doesn't matter, even if these allegations are true, there is no underlying property interest that would invoke the procedural protections of the Fourteenth Amendment.
04-278 +++$+++ 21895 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Eastman, can I ask you this question? Supposing this case came to us through the Colorado State system instead of through the federal system, and the Colorado Supreme Court had written precisely the same opinion that the Tenth Circuit ruled. Would we have jurisdiction to overturn their holding that there was a property interest here?
04-278 +++$+++ 21896 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, you're asking whether, for purposes of federal constitutional law, the state court decision that Colorado had created a property interest is dispositive. And I'm not sure it is, but --
04-278 +++$+++ 21897 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then your answer is no, we would not have jurisdiction in that event.
04-278 +++$+++ 21898 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, no, I was saying that yes, you would, because what we're talking about is looking to the state legislature on whether they've created a property interest for purposes of federal law.
04-278 +++$+++ 21899 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We could say that they had misconstrued Colorado law? I don't think you really mean that.
04-278 +++$+++ 21900 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
04-278 +++$+++ 21901 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I think you might --
04-278 +++$+++ 21902 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Perhaps what you mean is that what is a property interest for purposes of Colorado law, if Colorado chooses to nominate some utterly zany thing of property interest, it doesn't necessarily mean that it's a property interest for purposes of the Federal Constitution.
04-278 +++$+++ 21903 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, I'm happy to do that.
04-278 +++$+++ 21904 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You can do that, but you won't find any cases making that point.
04-278 +++$+++ 21905 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, you won't, but it makes perfect sense --
04-278 +++$+++ 21906 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't think you need a case for that, do you?
04-278 +++$+++ 21907 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, but it makes perfect sense.
04-278 +++$+++ 21908 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you have cases saying the contrary. That's the problem.
04-278 +++$+++ 21909 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What we want to find out is whether the Colorado --
04-278 +++$+++ 21910 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do we have any cases involving a zany property interest having been found by a State? I don't think we have any.
04-278 +++$+++ 21911 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't even have any cases involving a property interest to enforcement against somebody else. All we have are cases to the contrary. Linda R.S., for example, this Court held that there is no right to arrest or enforcement against somebody else. And so I think at least in the context of these very non-zany property interest claims, that we need to have a pretty clear statement, not even from the Colorado courts, but from the legislature itself that the legislature intended, as a matter of state policy, to have a property interest created and all of the consequences that would flow from that.
04-278 +++$+++ 21912 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I stop you? You cited that Linda R.S., whatever, I thought that was a standing case saying it's not going to do you any good to have him locked up in jail if what you want to do is get money from him.
04-278 +++$+++ 21913 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was, but the case has been relied on by several subsequent decisions including in the Second Circuit in the Attica case, inmates of Attica, for the proposition that there is just simply no right to an enforcement against somebody else, that there is no entitlement. Now, I'm not saying that the Colorado legislature never could create such an entitlement, but given the backdrop of Linda R.S., and also given the backdrop of traditional law enforcement discretion, I think we need a much clearer statement from the Colorado legislature itself, both that it's written in terms of the beneficiary -- getting her an entitlement against the police, rather than in terms of what the person restrained is.
04-278 +++$+++ 21914 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Eastman, assuming for the moment there is no due -- procedural due process right here, on the facts of this case, does Colorado law provide any alternative remedy for Mrs. Gonzales?
04-278 +++$+++ 21915 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice O'Connor, it does.
04-278 +++$+++ 21916 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what would that be?
04-278 +++$+++ 21917 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are several remedies. In the first instance, any violation of a restraining order, she can petition the court for a contempt order, even against the police. If their conduct was willful and wanton, they can be held --
04-278 +++$+++ 21918 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So she could presumably ask for some relief under that notion, against the police and possibly the town?
04-278 +++$+++ 21919 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Against the police and -- not the town. The town has absolute immunity but against the police under the tort statute, the police are not immune if their conduct is willful and wanton. And I think this Court in DeShaney addressed that very question when it looked like if the State wanted to create an interest here, that it could do so by modifying the --
04-278 +++$+++ 21920 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You say the tort statute means something like the Federal Tort Claims Act. Does Colorado have something like that?
04-278 +++$+++ 21921 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does. And there is a Colorado Governmental Immunity Act that gives immunity to police except when their conduct is willful and wanton. And so that tort remedy does exist and if the Colorado legislature wanted to lower the threshold on that and make it negligent omissions or what have you, whatever the allegations are, they could do so. The fact that they haven't done so I think is a pretty strong indication that they did not intend to create a property interest here. If there is a property interest -- let me just say one minute about the procedures that were given, and then I'll reserve the remainder of my time. At most we would have here, if there is a property interest, is the opportunity for Mrs. Gonzales to tell the police that she believed the restraining order was violated and that they responded to her however they did. She received whatever process might be due assuming we have a property interest here. If there are no more questions, I'll reserve the remainder of my time.
04-278 +++$+++ 21922 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Very well, Mr. Eastman. Mr. Elwood, we'll hear from you.
04-278 +++$+++ 21924 +++$+++ FALSE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice and may it please the Court: For two reasons the holders of restraining orders lack a property right to police enforcement of those orders. First, Respondent's claim has to be evaluated in light of the fundamental background principles that private citizens lack a judicially cognizable interest in arrest and in prosecution of third parties. And that executive decisions not to enforce criminal statutes are presumptively beyond the scope of judicial review. Nothing in the Colorado statute reflects an intent to depart from those background presumptions and to create an individual right to enforcement. Unlike statutes where this Court has recognized a protected property interest, the provisions at issue here do not regulate the Plaintiff or Respondent, but rather regulate a third party. And the provisions do not mention the restraining order holder, much less state that she has an entitlement to review. In addition, the provisions do not afford the holder of restraining orders procedural protections or judicial review of the sort that this Court --
04-278 +++$+++ 21925 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What good is -- what does the restraining order do, then, other than give her a right to sue the person who is restrained for contempt?
04-278 +++$+++ 21926 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it does two main things. First of all, it gives her rights against her husband which are enforceable through contempt and are enforceable by asking the police to enforce them. And second, which has the benefit -- it has the effect basically of creating a new arrest statute that lowers the threshold of what conduct is criminal from something that would be a freestanding crime to basically just violating one of the terms of the order. And that is the interest that the restraining order gives her.
04-278 +++$+++ 21927 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But only to ask the police and the police are not obliged to respond.
04-278 +++$+++ 21928 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. She has the ability to ask the police to enforce the order, but the police have discretion, under our reading of the statute, not to enforce the --
04-278 +++$+++ 21929 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do the police have any duty at all, in your view?
04-278 +++$+++ 21930 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The police -- I don't believe that the police have any sort of actionable duty. I think that what the statute creates is basically it's a direction from the legislature that this is what they want them to do.
04-278 +++$+++ 21931 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Could the police just issue an order saying ignore all orders of this kind?
04-278 +++$+++ 21932 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that if they were to do that, I do not think that there would be sort of any individual right to challenge that. I think that they would be adopting a policy decision that would be probably different than the one the Colorado legislature has --
04-278 +++$+++ 21933 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's the sort of aggressive sort of thing that the Colorado courts could conclusively decide.
04-278 +++$+++ 21934 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's something the Colorado courts decide, and it's something that would be -- that could be addressed through the political process as well.
04-278 +++$+++ 21935 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are there any extreme cases we could imagine where the police have a duty to protect the citizen? The policeman sees four people beating up on the victim, no race involved, and he just enjoys watching the fight. Does he have a duty under the Constitution to intervene?
04-278 +++$+++ 21936 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think any duty that there would be would be a substantive duty. And this Court indicated in DeShaney that it would require basically state creation of the harm or state increasing the vulnerability of the person. So for example --
04-278 +++$+++ 21937 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did DeShaney stand for the proposition there could never be an affirmative duty to intervene, under what you're talking about the Constitution here?
04-278 +++$+++ 21938 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it would be, in a case, for example, where a prisoner was handcuffed in his cell with a cell mate who the authorities knew to be basically interested in harming him. Because they had affirmatively restrained him, I think that that would be a case where the State had created the danger or increased the vulnerability. So I think there is something left to the requirement of police protection substantively under DeShaney.
04-278 +++$+++ 21939 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there has to be some State -- the State has to have created the risk somehow?
04-278 +++$+++ 21940 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under DeShaney, the State has to have created the risk or increased the vulnerability of the person. Now, in addition to the fact that the Colorado statute does not speak to the Plaintiff, it essentially speaks to the restrained party. And under -- as Mr. Eastman mentioned, under Gonzaga and this Court's 1983 cases, that when a statute speaks in terms of the regulated party instead of the protected party, there is no implication of an intent to create a federal right. And I think that that principle would apply even more clearly in the context of the state rights, because there there is a question of imposing federal liability which shouldn't really be done in the absence of an indication that the State really meant to do that. Another reason is -- not to assume that there is a property right here, is that the State statute does not create any sort of procedural remedies or judicial remedies which this Court has in the past taken as an indication that the State really did mean to create a protected right.
04-278 +++$+++ 21941 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's your response to the fact that the Tenth Circuit found otherwise and that we usually defer?
04-278 +++$+++ 21942 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think our response would be that it's not simply -- well, first of all, I don't want to make too much of the fact that it's obviously a very close question of state law because the Tenth Circuit was divided by a single vote. But even aside from that, you basically have to adopt not simply a question of what the state law says, but what the federal courts are going to do with it. And we are of the opinion that given what a tremendous departure it would be, what a procedural innovation it would be to give complaining witnesses essentially a right in the process, that in the absence of a very clear statement, the federal court should not imply a right or imply -- should not infer, rather, that the state legislature intended to create a right. So essentially, what we're asking for is a clear statement rule. And in the absence of a clear statement, we should presume that the --
04-278 +++$+++ 21943 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you agree that if this case stands with the state system, we would have to accept their holding on the property right issue?
04-278 +++$+++ 21944 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Obviously, I think there would be a much closer question at a minimum. There may be something to the fact that we should -- this is the sort of thing we would want a statement from the Colorado legislature.
04-278 +++$+++ 21945 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, let's -- I'm assuming the Supreme Court has said, this is what the statute means and so forth and so on, wouldn't that be binding on this?
04-278 +++$+++ 21946 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it would be binding. I mean, it would still be the federal question of whether that applied federal law correctly. But given that it's basically a question of what is a state property right, yes.
04-278 +++$+++ 21947 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Or whether the question of property right -- the property right issue is not a question of federal law, it is a question of state law.
04-278 +++$+++ 21948 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. That is correct. There is something of a federal overlay to sort of correct it at the margin --
04-278 +++$+++ 21949 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. What did they hold in the Tenth Circuit? I mean, shall could be mandatory. You can have a mandatory duty, but that doesn't mean that the victim has a legal right to enforce that duty.
04-278 +++$+++ 21950 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely correct, Justice Breyer.
04-278 +++$+++ 21951 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So what did they hold in the Tenth Circuit in respect to that?
04-278 +++$+++ 21952 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Basically they said that because it is -- because the statute was mandatory, they basically leapt from that to an inference that because it was mandatory, it was a duty that she could enforce. But there is no tradition in that --
04-278 +++$+++ 21953 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They should reask the certified question?
04-278 +++$+++ 21954 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that they need to because that is something that, again, it would be a useful thing given that there are 50 legislatures out there and there are probably at least 20 and perhaps 31 similar statutes that rather than certify the question and then have to certify on a State-by-State basis, just to adopt a background rule that this Court applies.
04-278 +++$+++ 21955 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But a background rule is awfully tough. I mean, you could have lots of shalls in all kinds of statutes. If they said shall, the sanitation department shall inspect your home for tuberculosis, maybe that does give a right. If they say to the fire department, you shall put out fires, I wouldn't think they meant that every possible homeowner had a right to a lawyer and a full judicial hearing before they go and respond to an alarm. You know, I mean, it depends on the area. I don't know how to create a background rule.
04-278 +++$+++ 21956 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think the rule that the Court could create is that in a criminal context, which is all that is at stake here, there is a background presumption that individuals lack a judicially cognizable right to arrest or prosecution. For example, an arrest warrant, although there is some question about whether or not that really is mandatory. It's certainly couched in mandatory terms. It's directed to the marshal. To the marshal, you are hereby commanded to arrest Jane Doe or whoever. But there is a very established body of law that even the people who basically agitate for the arrest warrant don't have a grounds to complain if the arrest warrant isn't executed. At the federal level, there is Leek versus Timmerman, where the court held there is no protective interest or there is no cognizable interest in the arrest of another party. And at the state level, there is a lot of case law indicating that officers are not liable to private citizens for failure to execute arrest warrants.
04-278 +++$+++ 21957 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But is it not true that the Colorado legislature could create such a right if it did it with sufficient specificity?
04-278 +++$+++ 21958 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that that is correct. This Court has not placed really many limits on what kind of rights could be created under Roth. There is some indication in cases like Sandin that there might be limits at the margins or rather at least limits presumptively --
04-278 +++$+++ 21959 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The Constitution does say property right. I mean, it has to be a property right, doesn't it? Is that meaningless? Is everything in the world either life, liberty or property? Does that describe everything in the world?
04-278 +++$+++ 21960 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, all I'm saying is that the Roth cases haven't really indicated that there might be limits on that. I think that there are reasons --
04-278 +++$+++ 21961 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, because there has been no case that really did not involve something that could reasonably be called property.
04-278 +++$+++ 21962 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct. And I think that this is a case where courts might want to exercise some caution because there is a reason why they don't involve private citizens in the prosecution. And that is because our system is built around the idea that to -- basically, we want to interpose brakes between the complaining witness and the courts and power of the State, as the Court indicated in Young versus United States ex rel. Vuitton. The prosecutor there, because it was a prosecutor, basically serves as a circuit breaker to prevent people from going straight to the --
04-278 +++$+++ 21963 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's the State's problem. I mean, if the State doesn't want that, sure, the State can take that away. But if the State does, do I still have to call it property just because the State does?
04-278 +++$+++ 21964 +++$+++ TRUE +++$+++ MR. ELWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that you would require a much clearer statement before accepting that kind of procedural innovation. I see my time has expired.
04-278 +++$+++ 21965 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, it has. Thank you, Mr. Elwood. Mr. Reichel, we'll hear from you.
04-278 +++$+++ 21967 +++$+++ FALSE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice and may it please the Court: A public high school student threatened with suspension receives more process under this Court's holding in Goss versus Lopez than Castle Rock is willing to provide to a holder of a court-issued protective order. Instead of providing Ms. Gonzales with any opportunity to be heard in any meaningful manner, Castle Rock repeatedly ignored Ms. Gonzales's pleas to have her children returned to her and the restraining order enforced.
04-278 +++$+++ 21968 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What process do you think your client was entitled to?
04-278 +++$+++ 21969 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We believe that what my client seeks is much less than what police officers do every day. We would ask this Court to hold that Ms. Gonzales was entitled to an objective, reasoned and good faith consideration of her complaint of a restraining order violation, and a good faith assessment of probable cause.
04-278 +++$+++ 21970 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could that simply be made by the person on the desk?
04-278 +++$+++ 21971 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It can, Your Honor, but it needs to be a probable cause determination that is actually communicated to the holder of the restraining order, whether it be a favorable or adverse determination, there needs to be some notice provided to the holder of a restraining order of what the police officers intend to do.
04-278 +++$+++ 21972 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, does --
04-278 +++$+++ 21973 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That -- no, please.
04-278 +++$+++ 21974 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The basic problem that I have is you just put your finger on. I mean, on your view of the facts here, which I will accept, it's outrageous what happened and a terrible tragedy, but it wasn't that they didn't hear her. They heard her. That's the problem. They heard her and they didn't do anything. So if you proceed under state law, you will, if you're right, get a holding that the police behaved very badly, that would help your client, and it would help future people in the same position. If you proceed under federal law, the most you get is somebody at the desk saying, well, we think other things are more important. And at that point, your client may or may not be helped and other people won't be helped. So don't you have a misfit between the remedy that you're trying to get and the harm that was done?
04-278 +++$+++ 21975 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, I don't believe so. We're asking for a specific process here. And Ms. Gonzales wants the right to prove a pattern and practice on the part of Castle Rock of not responding properly to complaints and pleas of this type.
04-278 +++$+++ 21976 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's not the kind that you've brought, as I understand it. As I understand it, you've brought a claim simply that she was hurt and was not given process. That's all you have to prove. If you can prove a pattern, sure, it's easy to prove an individual case. But your only claim is damage as a result of a denial of some procedural right in this case, isn't that correct?
04-278 +++$+++ 21977 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As the case stands now, it is a Monell claim, Your Honor. It is a pattern and practice claim.
04-278 +++$+++ 21978 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's not a class action, is it? It's not a claim under some statute -- civil rights statute. It's a claim for the benefit of this client and if this client wins, this client presumably will get a money judgment, isn't that the case?
04-278 +++$+++ 21979 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, you are correct, Your Honor.
04-278 +++$+++ 21980 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Okay.
04-278 +++$+++ 21981 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You are correct. But the ignoring here, the allegations are in the complaint, Your Honors, is that Castle Rock has this custom and policy, this pattern and practice of just ignoring these types of complaints. And the ignoring, as the law enforcement amicus brief filed on our behalf points out, the ignoring is a classic example of how police have traditionally responded to these types of complaints.
04-278 +++$+++ 21982 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'll grant you that, but as I understand it, what stands between or what would stand between your ignoring complaint and success would simply be the police's statement of a reason because, as I take it, I take it that you don't deny she was heard, they answered the phone, they talked to her. She got a result. After she had talked with them on the phone, she knew that they weren't going to do anything or that they weren't going to do anything satisfactory. So as I understand it, on your theory, the only thing she didn't get that she would be entitled to would be a statement by them as to why they were not going to do something for her. Is that what it boils down to?
04-278 +++$+++ 21983 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. What it boils down to, Your Honor, is we're looking for a probable cause determination to be made in good faith.
04-278 +++$+++ 21984 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if they had said, we don't think there is probable cause, that would be the end of your case.
04-278 +++$+++ 21985 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As long as there was a good faith determination. If there was a mistaken belief that there was a lack of probable cause, then there is no violation of due process. The process has been provided.
04-278 +++$+++ 21986 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose they just say, look, in our experience, children come home in two or three hours and, moreover, we have other things to do that are more important. Is that a sufficient answer? Both things, by the way, most people who look into this would say are completely wrong. But I mean, the police would say just what I said. Is that sufficient?
04-278 +++$+++ 21987 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, that is not a thoughtful, objective --
04-278 +++$+++ 21988 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So what you really want is what they should do, is they should respond?
04-278 +++$+++ 21989 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They should respond by making an objective probable cause determination --
04-278 +++$+++ 21990 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In this case, you would say they should respond?
04-278 +++$+++ 21991 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They should have made the probable cause determination.
04-278 +++$+++ 21992 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But then your complaint is the result, not the procedure.
04-278 +++$+++ 21993 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor --
04-278 +++$+++ 21994 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, it's true that the procedural cases are designed so that the right result can be reached most of the time. I understand that. But all we ask is whether or not the procedure was adequate.
04-278 +++$+++ 21995 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was no procedure here, Your Honor, and that's the point of our lawsuit is that the fact that Castle Rock has an official custom and policy of ignoring, of not applying any procedure to these types of claims is the crux of our complaint in this case.
04-278 +++$+++ 21996 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why was your procedure, assuming your entitled to a procedure, why did it have to come from Castle Rock? Why wasn't your proper recourse to the court that issued the restraining order? Did you try to do that, to go to the judge that issued the restraining order and say, the police are not enforcing the restraining order that you issued, I would like directive from the court that they enforce it?
04-278 +++$+++ 21997 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At the point at which she realized the police weren't really going to do anything, she found out her children were dead. That would have been at that point in time a meaningless process.
04-278 +++$+++ 21998 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, just as she could have complained to the police earlier, she could have gone to the court earlier when she saw that the police weren't doing anything.
04-278 +++$+++ 21999 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The police told her to continue to wait. They strung her along, Your Honor. That's -- the crux of the problem here is that she relied upon the police to enforce her restraining order. They told her to hold on --
04-278 +++$+++ 22000 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That may be a tort, but it's not necessarily a denial of process if the proper place to seek that process was from the court that issued the restraining order.
04-278 +++$+++ 22001 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the restraining order has no meaning, Your Honor, unless the police are willing to enforce it.
04-278 +++$+++ 22002 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's right, and the court can make sure that they enforce it upon complaint.
04-278 +++$+++ 22003 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In this case, it's our position that the legislature has done so as well.
04-278 +++$+++ 22004 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me ask you a question that is suggested by Justice Scalia's question. And it goes basically simply to the practical problems that your position seems to entail. You answered him by saying that the point at which she realized they were denying her whatever she was entitled to was the point at which the children were dead. How would a reviewing court know when this particular right had been denied? I take it from your answer to Justice Scalia that there had not been a denial of the right and hence a violation of procedural due process after the first telephone conversation. I take it from your answer that there wasn't one after the second conversation. And I take it the only -- that there was no ripening, as it were, of the facts into a denial of what she was entitled to until the 3:00 a.m. call, is that correct?
04-278 +++$+++ 22005 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, and I apologize if I misstated -- and it gave you that impression.
04-278 +++$+++ 22006 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, my general question, then, is how does a reviewing court determine when or the point at which there has been a denial?
04-278 +++$+++ 22007 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The initial contact with the police department we're saying has to involve appropriate processes --
04-278 +++$+++ 22008 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So following the first phone call, they would have to have made an express probable cause determination?
04-278 +++$+++ 22009 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They would have had to have made a probable cause determination in good faith and conveyed and communicated --
04-278 +++$+++ 22010 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And communicate that to her.
04-278 +++$+++ 22011 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Communicated that to her, which they never did. Instead they just kept telling her, you can call back later, call back later. They never made the probable cause determination and conveyed it to her.
04-278 +++$+++ 22012 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did they simply have to take her word as to the facts on the probable cause issue?
04-278 +++$+++ 22013 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, not at all, Your Honor, and I believe that the whole intent of Goss versus Lopez was to allow a high school student to understand the interpretation of the principal's view of the facts, and allow the student the opportunity to clarify or to fill in any missing points in terms of the understanding being --
04-278 +++$+++ 22014 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's true, but Goss versus Lopez, to my knowledge -- you may know more about it. But to my knowledge, there are not a lot of federal cases which second guess the principal or the teacher, once the teacher or the principal gives a plausible reason for suspending the student. And of course my fear is that that is precisely what would occur here. There would be procedure, there would be a reason. The reason is we're too busy. All right? And courts won't second guess that. But if you take the other route, you get what you need, which is an instruction to the police department that when a child is missing, you don't wait. But I don't see how you can get that instruction on this procedural route.
04-278 +++$+++ 22015 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we're not asking for the Court to instruct the police department they have to drop everything --
04-278 +++$+++ 22016 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Exactly. And that seems to me to be the problem, because you have a case where the problem was the delay and that's apparently a common problem. And I don't see how this route that you take gets at that problem.
04-278 +++$+++ 22017 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if I could respond, the delay issue is not the crux of the problem. The crux of the problem is that the police officers here never told Ms. Gonzales that they believed that there was or was not probable cause.
04-278 +++$+++ 22018 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What good could that have done anyone?
04-278 +++$+++ 22019 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would have allowed her the opportunity --
04-278 +++$+++ 22020 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ She knew, as it was, that they weren't going to do anything. What good would it have done her to know that, oh, it's nice to know that they've gone through a probable cause determination in coming to the conclusion that they're not going to do anything. I mean, what is the social value of that?
04-278 +++$+++ 22021 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I don't believe the record is such that we've alleged that Ms. Gonzales knew that they weren't going to do anything. In fact, it's just the opposite, that she relied upon --
04-278 +++$+++ 22022 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They said call back in two hours and whatnot.
04-278 +++$+++ 22023 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And she continued to do that, to follow their instructions.
04-278 +++$+++ 22024 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And each time at the end of the call, she knew that they weren't going to do -- they weren't going to go out and look and they weren't going to enforce the order at that point, didn't she?
04-278 +++$+++ 22025 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure that's correct.
04-278 +++$+++ 22026 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, I can understand you're making an argument -- you have made it, but I can understand you're making an argument that the point of procedure is to force people, in this case the police, to face facts. If they really know that she has made out probable cause that something is wrong here, if they are forced to face that as a result of procedure, they will then do something about it. It's not as easy to be irresponsible in that case. But the trouble with that argument, it seems to me, although it's sound as far as it goes, is that it's an argument that would apply with respect to every statute in which there is mandatory language to the police to enforce it. And that seems to me to suggest a completely nonadministerable system and one which is totally at odds with the normal accord of police discretion.
04-278 +++$+++ 22027 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
04-278 +++$+++ 22028 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, how do you get around that dilemma?
04-278 +++$+++ 22029 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We believe that the process test that we're articulating here is unique to domestic violence mandatory arrest statutes across the country. The reason being is that these statutes were enacted precisely because of this problem, the problem of --
04-278 +++$+++ 22030 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then why weren't they enacted with an express provision saying, and by the way, the police have got to go, either through the following procedure or, by the way, this statute creates a right on the part of the protected party. In other words, if the response to what I understand the problem to have been, if the response was the response that you think the legislature made, why didn't the legislature say something that would take these statutes out of the run of the mill criminal law statutes in which the police, subject to mandatory language, have an apparent obligation to do something to enforce?
04-278 +++$+++ 22031 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would respectfully submit, Your Honor, that they have, especially in Colorado. This statute is much more detailed than a run of the mill criminal or civil statute.
04-278 +++$+++ 22032 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it doesn't say that people like your client have a personal right to enforcement with a damage remedy.
04-278 +++$+++ 22033 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It doesn't, Your Honor, but the fact that there is a court order here in place individualizes the entitlement. It makes it personal. Ms. Gonzales went into court and aired her dirty laundry under the assumption, mistakenly here, that she was going to be provided protection from the State. That if she went in and explained the situation to the courts, the courts would issue her an order that meant something. And it could only mean something if police officers are willing to enforce it. The legislature in turn has said, if a person has this kind of order, you shall use every reasonable means to enforce it. Now, in order to enforce it, the police officers are going to have to, as they respond to every criminal complaint, make an initial probable cause determination. That's part of every day law enforcement.
04-278 +++$+++ 22034 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Reichel, how would you describe, briefly, the property that your client has been deprived of? What is the property?
04-278 +++$+++ 22035 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The property is an entitlement to enforcement of her order. That's the property, Your Honor. That's how it was --
04-278 +++$+++ 22036 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The entitlement to enforcement of an order is property? Do you know any case that is -- what's the closest case that you would say has held something to be property that is an entitlement to have an order enforced as opposed to an entitlement to a job, an entitlement to money, an entitlement to what I would consider property?
04-278 +++$+++ 22037 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is no opinion of this Court that talks about orders per se. There is, however, what I would classify as a more quirky property interest, and that was the Logan versus Simmerman Brush case. That case dealt with the situation where there was a statute that provided a cutoff for when somebody could sue for unemployment benefits or discriminatory allegations in the State of Illinois. And the court there held that while there is really a right in this process, to go through this process and by cutting it off without any opportunity for notice or a hearing, the State of Illinois --
04-278 +++$+++ 22038 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but it's, at the end of the day, they were unemployment benefits, right? I mean --
04-278 +++$+++ 22039 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true.
04-278 +++$+++ 22040 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Wouldn't the better analogy be to assume she made a contract with a private detective agency to protect her from these events. And if something arises, to go get the police and act on it? That would be a property right if she had a private contract with a private detective agency to do exactly what the police were supposed to do here.
04-278 +++$+++ 22041 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, that's true, although when she went into court, I think she believed that she had a contract with the State of Colorado, at least a promise by the State of Colorado that she would obtain some protection.
04-278 +++$+++ 22042 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But it seems to me a contract for protection would be a familiar kind of property, is what I'm suggesting.
04-278 +++$+++ 22043 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly. Exactly. And here the order --
04-278 +++$+++ 22044 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there is no contract here, is there?
04-278 +++$+++ 22045 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is no contract but there is an order. There is a court issued order based upon her allegations and based upon her submissions to the court. Your Honors, again, Ms. Gonzales took the risk here of seeking an order of protection and airing her dirty laundry in public, and she did so with the reasonable expectation that the order meant something, that law enforcement would enforce it.
04-278 +++$+++ 22046 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Could you be precise about what is the due process? You're saying it's not a hearing that you're seeking. Not just that she could be listened to and no action taken. But what precisely is the process to which she is due?
04-278 +++$+++ 22047 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We believe that there has to be an objective, thoughtful, reasoned evaluation of her complaint of a violation. And that involves necessarily an evaluation in good faith of probable cause, a determination of whether probable cause exists, and an articulation of that determination --
04-278 +++$+++ 22048 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you said a moment ago, this could be done by the sergeant on duty at the desk who probably had three other calls waiting. Do you still think that could be done?
04-278 +++$+++ 22049 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly, Your Honor. I believe if you take a look at some of the model policies already in place by police departments around the country that are attached to the amicus brief of the law enforcement agencies that filed on our behalf, you'll see some policies whereby the person at the desk taking the information is required to have certain types of questions and provide certain types of responses to those questions.
04-278 +++$+++ 22050 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But on any timetable?
04-278 +++$+++ 22051 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yeah, we're not asking for the police department to drop everything. We're just asking that they --
04-278 +++$+++ 22052 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If I understand your position correctly, I know what the allegations are here, but if the evidence should show later on that in response to one of these telephone calls, the desk sergeant said, send a squad car out and see if you can locate the kids, you would lose?
04-278 +++$+++ 22053 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, that's not what I'm saying.
04-278 +++$+++ 22054 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Because that would have been a good faith response by somebody to try and find out whether there was probable cause.
04-278 +++$+++ 22055 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There has to be an articulation of the determination of probable cause to the holder of the restraining order to allow her to, for example, clarify facts, to perhaps talk to a superior or perhaps, in this case, go somewhere else for help, go to the court.
04-278 +++$+++ 22056 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But where do you get that? I know that the Tenth Circuit tried to stick to the language of the statute. But where do you get the requirement, A, that police inform her and, B, that it give reasons for nonenforcement? Those were not within what the Tenth Circuit said.
04-278 +++$+++ 22057 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe it was wrapped within the concept of a probable cause determination. And they did specifically state that if there was an adverse determination, that notice of that determination has to be conveyed to her. That was, I believe, the fourth prong of our analysis.
04-278 +++$+++ 22058 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So the notice -- yeah, did it say with a statement of reasons?
04-278 +++$+++ 22059 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With a statement of reasons, it did, Your Honor.
04-278 +++$+++ 22060 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Where does that come from?
04-278 +++$+++ 22061 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the statement of reasons, Your Honor, allows again for there to be communication on both sides. So that if the statement of reasons turned out to be based upon false information --
04-278 +++$+++ 22062 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I know that it would be a fair process that you're describing.
04-278 +++$+++ 22063 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A meaningful process.
04-278 +++$+++ 22064 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But is it an essential one, that is, that nothing spells out -- in most of the cases that involve property and a procedural due process right, it's a hearing that the person is seeking. Are they entitled to benefit or are they not? But here, this is not what you want. You want the police to enforce. And if they don't enforce, to give you a reason.
04-278 +++$+++ 22065 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I believe that the enforcement of the order flows from the probable cause determination. The obligation to enforce is triggered by a finding of probable cause of a violation. So the process we're looking for involves the probable cause determination. It's our position that by simply ignoring that process, you're depriving somebody potentially of their property right in enforcement of the order.
04-278 +++$+++ 22066 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But if the police -- let's say, focusing on this case, suppose they had looked at this order and said, wow, it gives him weekends with the girls, it gives him summertime with the girls and, subject to his ex-wife's agreement, dinner time with the girls, this can't be all that urgent because if he would harm the girls then why is the judge allowing him so much sole time with them? So wouldn't -- looking at this particular order, wouldn't there be reasons why the police would say, the judge is allowing the father to spend time with the girls, this can't be that urgent?
04-278 +++$+++ 22067 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There could have been, Your Honor, but again, those reasons were never articulated to my client and any reasons the police officers may have had are not in the record.
04-278 +++$+++ 22068 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But this is such a new sort of a requirement you're seeking us to develop here. I just don't know of any past case that would suggest such a requirement when it comes to law enforcement requests by citizens of police. It would be a major step, wouldn't it?
04-278 +++$+++ 22069 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would be a different kind of case, Your Honor.
04-278 +++$+++ 22070 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. Are there any indications that any of the police in this instance will face disciplinary action for their response here?
04-278 +++$+++ 22071 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I really have no idea, Your Honor. I really have no idea.
04-278 +++$+++ 22072 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could you still bring a state tort suit?
04-278 +++$+++ 22073 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. I believe that as was conceded in Petitioner's reply brief, they're really under our governmental immunity laws. They're probably the strictest in the country. There really is no viable tort --
04-278 +++$+++ 22074 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why? Because it is willful and wanton, and you've made out a claim they didn't even give an answer, they didn't do anything, they have a practice of doing nothing.
04-278 +++$+++ 22075 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that centers more around the causation and foreseeability issues that are triggered by that type of a claim.
04-278 +++$+++ 22076 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if the State cares so little about enforcing what its officers do under its own laws, isn't that some indication that it did not intend to create the property interest that you're arguing for?
04-278 +++$+++ 22077 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, I don't believe that at all. And in fact, again, going back to some of the Court's prior cases and the Roth series of case law, if you look, for example, at Logan versus Simmerman Brush, there was a good deal of discussion about whether there was a tort law remedy and, in fact, there was in that case.
04-278 +++$+++ 22078 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you have any other cases besides Logan?
04-278 +++$+++ 22079 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ On that issue?
04-278 +++$+++ 22080 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-278 +++$+++ 22081 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not with that elaborate of a discussion on the issue, although I would submit that the existence of a post-depravation remedy, so to speak here, is irrelevant under, again, Logan, simply because we're left now with the Monell claim. We're left with the allegations of state action, a custom and policy of a state entity here. And the existence of a post-depravation state law tort remedy is irrelevant to the analysis of whether there is a due process violation.
04-278 +++$+++ 22082 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If there had been a question certified to the Colorado Supreme Court, and the Colorado Supreme Court said we weren't intending to create any entitlement here, evidence that we don't even have a tort action that's willful or wanton conduct, no liability at all in the municipality. So suppose the State Supreme Court has said, we didn't mean to create any entitlement, then where would you be?
04-278 +++$+++ 22083 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We probably wouldn't be here, Your Honor. That question simply never got certified to the Tenth Circuit. And I believe you do have to give deference to the Tenth Circuit's analysis of Colorado law on that issue. Your Honors, at issue here is a specific order of protection, a legislative mandate requiring enforcement of a protective order and a pattern and practice of the Castle Rock police department of ignoring and failing to enforce court issued protective orders. This case does not turn on decisions made by police officers based solely on the facts of this case. This case involves allegations of a pattern and practice, an official policy and custom on the part of Castle Rock of not taking complaints of restraining order violations seriously. This pattern and practice that's -- in and of itself proves there was no process. Ms. Gonzales merely seeks the opportunity to prove at a trial on the merits that no matter what she said to the Castle Rock police officers, they were not going to do anything about her --
04-278 +++$+++ 22084 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask you whether you would favor or disfavor our certifying the question whether there is a property right here to the Colorado Supreme Court?
04-278 +++$+++ 22085 +++$+++ TRUE +++$+++ MR. REICHEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At this point in time, I suppose I would disfavor it, because I believe that Bishop versus Wood is controlling. Your Honors, we respectfully request that this Honorable Court affirm the Tenth Circuit's ruling in this matter. Thank you very much.
04-278 +++$+++ 22086 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Reichel. Mr. Eastman, you have four minutes remaining.
04-278 +++$+++ 22088 +++$+++ FALSE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. I want to go back to Justice Scalia's point about the property interest. This is such a unique claim of a property interest. I think it would be appropriate to find that even if you were to accept Justice Stevens' contention of a contract, an ADT type of guarantee of protective services, that looks a lot more like the type of entitlements under Roth that this Court has recognized. I think it may well be the case that you never reach a property interest in the enforcement against somebody else, that that's a different thing in kind from this traditional contract protective services. So if there was a statute that said, when somebody has a protective order that implicates -- particularly when there is a finding of dangerousness that's been made by a court that has nothing to do with the restraining order that was issued here, and that the police are obligated to provide 24-hour, seven days a week police -- squad car out in front of her house until she goes to testify at a hearing, for example, that would be I think a property interest. But it would meet the criteria that this Court set out in Gonzaga, that it's defined in terms of rights to her, not just benefits that might flow from a criminal law more generally. It's phrased in terms of the person benefited and it has an unmistakable focus. That's the phrase from Gonzaga. And that there is an intent to create a private remedy as well, not just the private right. I think those kind of things would give rise to a Roth type property interest that would lead to the invocation of procedural due process requirements.
04-278 +++$+++ 22089 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about the willful and wanton -- suppose the facts were just as they say, long-standing practice, not responding, doing nothing, doing nothing here despite evidence of serious danger, and being told you shouldn't do anything, don't pay any attention he'll come home, would that show willful and wanton?
04-278 +++$+++ 22090 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe under Colorado law, that would show willful and wanton and their tort claim would be available against the police. But it's precisely because of that tort claim is available and only on those limited circumstances that I think you cannot read the Colorado legislature as having created a property interest here, because the remedies that would be available would not be so limited. We would not be limited to willful and wanton conduct. We would have all sorts of remedies beyond what the State of Colorado specifically said. And you would go a long way toward making constitutional provisions the font of Colorado tort law, and completely supplant --
04-278 +++$+++ 22091 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask you the same question I asked your opponent? Would you favor or disfavor our certifying the property law issue to the Colorado Supreme Court?
04-278 +++$+++ 22092 +++$+++ TRUE +++$+++ MR. EASTMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Disfavor. I think there is just nothing in this statute that would even make it reasonable for the Colorado Supreme Court to hold that there is a property interest here. And to go back to your earlier point about Bishop, it's not a determinative rule. You give deference to the Tenth Circuit. But when the Tenth Circuit's decision is not based on any even developments in Colorado law, and based on a Colorado statute and takes the step that this statute simply doesn't comply with, I don't think you need to give the kind of absolute deference here that you might have given other cases. If there are no more questions, I'll -- thank you.
04-278 +++$+++ 22093 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Eastman. The case is submitted.
04-340 +++$+++ 22097 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument now in No. 04-340, San Remo Hotel v. the City and County of San Francisco. Mr. Utrecht, is that --
04-340 +++$+++ 22099 +++$+++ FALSE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. MR. CHIEF JUSTICE, AND MAY IT PLEASE THE COURT: The Ninth Circuit decision in this case should be reversed for three reasons. The first reason is that the result is unfair and the rationale of the court is unfair.
04-340 +++$+++ 22100 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, what are your -- exactly what claims are -- is your client now raising in Federal court? I mean, we don't take a case to just decide if something is unfair. What are the precise claims your client is raising now in Federal court?
04-340 +++$+++ 22101 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My client is making a facial and as-applied takings challenge to both the hotel conversion ordinance and the regulatory scheme of which it is a part. And that claim -- that Federal --
04-340 +++$+++ 22102 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I somehow thought that your question had boiled down to whether there was issue preclusion here. Am I wrong?
04-340 +++$+++ 22103 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The issue before this Court is whether there's issue preclusion --
04-340 +++$+++ 22104 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm talking about the issues in this Court.
04-340 +++$+++ 22105 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay. The issue in this Court is whether the Federal takings claim should be precluded under issue preclusion by a State court judgment that did not decide the Federal takings claim and could not have decided the Federal takings claim.
04-340 +++$+++ 22106 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, as I understand, I -- I would -- I will grant you that there are moments in the -- in the Ninth Circuit opinion in which there seems to be a shift back and forth in the rhetoric between claim preclusion and issue preclusion. But as I understand what the Ninth Circuit held, it did not hold that your claim was necessarily out of court because of claim preclusion. It held that your claim failed because of the effect of issue preclusion on elements that were common, factual elements common to both the claim in the State court and the claim that you sought to bring in the Federal court. Am -- am I correct about that, about what the Ninth Circuit held?
04-340 +++$+++ 22107 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Ninth Circuit did limit its holding to issue preclusion. It did not rule on claim preclusion.
04-340 +++$+++ 22108 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
04-340 +++$+++ 22109 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The other part of your question about whether it was based on factual determinations could not have been based on factual determinations. Instead, it was based on the prior State court determination that we did not state a claim -- state a cause of action under California law for State compensation.
04-340 +++$+++ 22110 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the Supreme Court of California decided only the State constitutional question, did it not?
04-340 +++$+++ 22111 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Mr. Chief Justice. And because of that, we have never had an opportunity to have our Federal takings claim decided on the merits. We believe that that undermines the Federal courts' primacy in deciding Federal questions, particularly Federal constitutional questions. We also believe --
04-340 +++$+++ 22112 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it was this Court's decision in the Williamson County case that led you and I assume other lawyers in these takings cases to return to State court and try to litigate everything. Isn't that right?
04-340 +++$+++ 22113 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court in Williamson County said that before you could bring a Federal takings claim, you had to go to State court and seek compensation under State law.
04-340 +++$+++ 22114 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you haven't asked us to revisit that Williamson County case, have you?
04-340 +++$+++ 22115 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We have not asked that this Court reconsider the decision in Williamson County.
04-340 +++$+++ 22116 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Maybe you should have.
04-340 +++$+++ 22117 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, at this point I don't think that we can. Perhaps we could have in 1998 when the Ninth Circuit applied the Williamson County case and ordered us to go to State court with our unripe Federal claims, unripe under this Court's holding in Williamson. But I think that at this point the question before the Court is given that we've complied with the procedural requirements that this Court established in Williamson County, are we now precluded by issue preclusion in the second litigation that this Court ordered because of the State court compensation ruling.
04-340 +++$+++ 22118 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Utrecht, you -- you refer to the primacy of Federal courts. I'm -- I'm not clear as to whether you are arguing for a different disposition where a suit is first brought in Federal court erroneously because there's been no exhaustion and then the plaintiff is sent back to State court from the situation in which a plaintiff does the right thing and goes to State court immediately. Now, in that case, would -- would you still argue for primacy of the Federal court?
04-340 +++$+++ 22119 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Your Honor. I think that what this Court established in Williamson County is a two separate litigation scheme. The first litigation concerns State compensation, and the second litigation concerns the Federal takings claim.
04-340 +++$+++ 22120 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So -- so your case does not hinge on the fact that when the State court acted, there was a pending -- a pending Federal case asking for the Federal constitutional question to be resolved by a Federal court.
04-340 +++$+++ 22121 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. I think that the Second Circuit got this issue correct in the Santini case when it concluded that whether you started in Federal court and were ordered to proceed to State court under Williamson County or you looked at the Williamson County case and said, I'm going to start in State court because that's what Williamson County says that I'm required to do, it doesn't matter. It shouldn't matter for purposes of issue preclusion on the Federal takings claim once it has been made ripe under the procedures required by Williamson County.
04-340 +++$+++ 22122 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is it your position that issue preclusion doesn't apply at all, or that there was no issue decided in the State court proceeding that carries over into the Federal proceeding? Which one is it? What -- you suggested -- you said, number one, no facts were found. The question was whether there was sufficient statements to survive a 12(b)(6) or its counterpart dismissal motion.
04-340 +++$+++ 22123 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our -- our primary position is that issue preclusion does not apply for the same reasons that this Court found that issue preclusion did not apply in England when you were required to do two separate litigations. The question of whether the Ninth Circuit correctly applied issue preclusion law -- we also raise that as our last argument in our opening brief, but our primary argument here today is that issue preclusion should not apply at all to Federal --
04-340 +++$+++ 22124 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And if it did -- if it did apply, what issues would be precluded?
04-340 +++$+++ 22125 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In our position no issue should be precluded because under California law, which the Ninth Circuit was obligated to apply, only identical issues that are resolved under a different set of laws can be precluded in the second proceeding, and there was no identical issue finding by the Ninth Circuit. Instead, the Ninth Circuit applied its equivalent determination finding. But I think that the -- the real issue before this Court is not the California preclusion law question, but the real issue is whether this Court's decision in England should -- or the rationale of this Court's decision in England should be applied to the very similar circumstances raised by --
04-340 +++$+++ 22126 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is -- excuse me. Is -- is it your position that there is an exaction here?
04-340 +++$+++ 22127 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-340 +++$+++ 22128 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It -- are -- are you bound by a finding in the State court that there was no exaction, or was there no such finding?
04-340 +++$+++ 22129 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe there was such a finding. I think that the California Supreme Court decided that the exaction met the State law compensation requirements and did not --
04-340 +++$+++ 22130 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was the -- was the Ninth Circuit wrong in indicating that there was no exaction? That's the way I read its opinion.
04-340 +++$+++ 22131 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I don't read the Ninth Circuit's opinion as saying there was no exaction. I think the Ninth Circuit held that the exaction was imposed by legislation rather than by an administrative proceeding, and because of that, it was subject to a different standard than exactions imposed in administrative proceedings. But I think there's no question in this case that an -- an exaction was imposed and was actually paid. This is not a -- this is not a case where there's an issue about whether the exaction was imposed. The issues were what standard was used to review that exaction and whether the exaction was constitutional.
04-340 +++$+++ 22132 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- but the Ninth Circuit seemed to think that Dolan doesn't apply, and I take it that you would say that it does.
04-340 +++$+++ 22133 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think this Court has not decided whether exactions imposed by legislation are treated differently than exactions imposed by administrative proceedings. The State court in this case determined that under State compensation law that mattered. But this Court has not decided that. The Ninth Circuit seemed to indicate that it was in general agreement with the California Supreme Court, but again, because it didn't actually decide the merits, it just decided that there was an equivalent determination under State law, it didn't get to the final question of whether this was an exaction and what the proper standard was.
04-340 +++$+++ 22134 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you don't want us get that -- to that question either, whether Dolan applies or not.
04-340 +++$+++ 22135 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I did want this Court to get to that question, but when this Court rejected question 2, I think this Court decided that it did not want to get to that question. But we -- and we did not brief that question because this Court did not grant certiorari on question number 2. But we definitely did want this Court to decide that question, and obviously, if -- since the Court can't decide it in this case, we would, obviously, want the Court to decide it in some other case, hopefully before this case is finally resolved in the courts.
04-340 +++$+++ 22136 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Utrecht, if I understand the respondents' brief correctly, there is on pages 10 and 11 a whole list of issues that they say were determined -- raised, litigated, and determined in the State court. So, for example, that the HCO's housing replacement fees bear a reasonable relationship to loss of housing, the use of a defined historical measure -- measurement point reasonably related to the HCO's -- and it goes on for a paragraph, citing issues that respondents say -- says were raised, litigated, and decided in the California Supreme Court.
04-340 +++$+++ 22137 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that technically what the California Supreme Court decided was that our facts did not state a cause of action under State law. What they cite here as findings are actually discussions of the legal issues raised by the State court complaint under State law. They don't amount to a factual finding. There was no trial. There was no summary judgment motion. There was no evidence presented on any of these points. These are --
04-340 +++$+++ 22138 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How did the case go up? On a motion to dismiss?
04-340 +++$+++ 22139 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The case in State court went up on a motion to dismiss, which was granted by the trial court, reversed by the State court of appeal, and then affirmed by the California Supreme Court.
04-340 +++$+++ 22140 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, in effect, then maybe -- are you saying this, that there is no issue preclusion here because the -- the ruling that there was no statement of a cause of action was, in fact, a disposition of the claim without there being any resolution of any fact issue upon which the claim might depend. Is that what you're saying? And therefore -- and -- and that is the reason why there is no issue preclusion? Is that your argument?
04-340 +++$+++ 22141 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's not the argument that we made in this Court. That is an argument that we made in the lower courts. The argument that we're making in this Court is rather that under the England case -- or rather, the rationale of the England case, there shouldn't be any issue preclusion whether or not the State courts made any factual findings. I don't think that the question as framed by Your Honor is presented by the briefs. I mean, obviously, that was a contention of ours. We think that's a correct statement of how the case should have been resolved by the Ninth Circuit, but the Ninth Circuit instead chose not to look at that issue or not to decide the case on that issue, but instead to decide under its prior precedents of Dodd and Palomar, that issue preclusion applied and then applied its own formulation of the equivalent --
04-340 +++$+++ 22142 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- but isn't there an essential step to find out that there were issues? Because I think the way you're phrasing the question, it says, if there were issues decided, they weren't precluded. But if there are no issues, that's -- that's not what's involved in this case. The simplest ground on which you could knock out issue preclusion is that no issues were decided.
04-340 +++$+++ 22143 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be a simple route to knocking out the case. The Ninth Circuit rejected that argument. That question did not seem cert-worthy and --
04-340 +++$+++ 22144 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What -- what were the issues that the Ninth Circuit thought were decided?
04-340 +++$+++ 22145 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I can't quite tell. I think what the Ninth Circuit said was that because State law and Federal law on this question was similar, at least in the Ninth Circuit's understanding, that the State court determination was an equivalent determination. Once they made that finding, that there was an equivalent determination under State law, the Ninth Circuit decided that the claim must be precluded by issue preclusion.
04-340 +++$+++ 22146 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, issue preclusion does extend to questions of law, as well as fact.
04-340 +++$+++ 22147 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does extend to questions of law. The problem, of course, is that the State court question of law that was decided was whether our -- we were entitled to compensation under State compensation law. The State court did not decide whether we were entitled to just compensation under the Fifth Amendment.
04-340 +++$+++ 22148 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought they said that their -- their compensation law was congruent with ours?
04-340 +++$+++ 22149 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The California Supreme Court did say that its compensation law --
04-340 +++$+++ 22150 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What do you -- what do you think that means?
04-340 +++$+++ 22151 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that means that the California Supreme Court would like to believe that its law is congruent with this Court's decisions. I think that, in fact, the California Supreme Court does not follow this Court's precedents in this area of law, and I think we actually argued the first time that we were in front of the Ninth Circuit, that it was futile to go to State court precisely for that reason. That argument was also rejected by the Ninth Circuit. I think that it cannot be that the State courts are going to be the -- our final arbiter of whether their law is in fact congruent with Federal law or not. It left either to this Court --
04-340 +++$+++ 22152 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What do you understand the word congruent to mean?
04-340 +++$+++ 22153 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think congruent means that it's equivalent. I think -- I think the Ninth Circuit's view of an equivalent determination is that it's close. It's close enough for government work, perhaps. (Laughter.)
04-340 +++$+++ 22154 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What -- what is the claim you want to make? That is, my reading of the California State court opinion says you came into their court and you said, look, this ordinance in San Francisco violates the Fifth Amendment, I guess, because it doesn't make any sense. The -- there's no good basis, no sound basis for requiring us to pay a fee in order to convert rooms. Anyway, the room isn't a house. Anyway, it makes no sense as applied to us. Anyway, they admit they just want to raise revenue. Anyway, we're going to give the tenant a place to live for the rest of his life. All right. Those were the claims. And in each case, the California Supreme Court said you're wrong. You're wrong because it does help preserve rooms, because it does have a reasonable purpose in a city that's crowded, because the tenant who's there for life might move out, and we want to keep the room even if he moves out because he dies. And anyway, it's not an issue of whether your case is special. This makes sense as a general rule. All right? They decided it. You raised it. They decided it. Now, what else is it you want to raise in Federal court?
04-340 +++$+++ 22155 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that what's important is the very beginning of your question. You said that we said in State court that it violated the Fifth Amendment.
04-340 +++$+++ 22156 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't know if you said it. I just said that that is what I read in the California Supreme Court opinion that Justice Werdegar wrote. And so what I'm asking you is whether they should have or whether they shouldn't have, they did seem to decide those five issues. And so my question to you is, what else do you want to raise?
04-340 +++$+++ 22157 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The California Supreme Court decided whether those legal propositions were relevant under the State constitution and the State compensation --
04-340 +++$+++ 22158 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought it decided a different thing. I thought that it decided that in part that was the reason for their decision. But the reason they reached their decision is they thought on each of those five matters that the City of San Francisco had a reasonable legislative purpose for its ordinance.
04-340 +++$+++ 22159 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And they made that decision under State law. They -- they --
04-340 +++$+++ 22160 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Just as, suppose, for example, they had decided that the hotel clerk or the temporary manager did speak English, and in fact, he was a scholar of English. And suppose that that had been the key matter for its decision of State law. I take it, if you came into Federal court, even if the issue were quite different, you would be bound by that factual determination. That's why I'm asking you. It seems to me here they have decided matters of whether there was a reasonable purpose or not for this particular ordinance and as applied to you. Now, what else do you want to raise in Federal court that was not encompassed by what I just described?
04-340 +++$+++ 22161 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the hypothetical that Your Honor gave of a factual determination that the clerk spoke English well, that fact under the England case and under England's rationale would be subject to relitigation in Federal court in the Pullman context. And we believe that there's no significant difference between our context and the Pullman context. I do recognize that that is contrary to the normal rules of res judicata. The normal rules of res judicata are designed to prevent exactly what this Court decided should be -- should happen --
04-340 +++$+++ 22162 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But am I right? I'm just trying to narrow the issue in my mind. Am I right you want to raise one, two, three, four, or five of those issues that I just described and nothing more?
04-340 +++$+++ 22163 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The factual claims --
04-340 +++$+++ 22164 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Am I right about that?
04-340 +++$+++ 22165 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-340 +++$+++ 22166 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you.
04-340 +++$+++ 22167 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The factual claims that we're making in Federal court are the same factual claims that we made in the State court --
04-340 +++$+++ 22168 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but is there precedent that what is reasonable for the State constitution is always reasonable for the Federal Constitution?
04-340 +++$+++ 22169 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That --
04-340 +++$+++ 22170 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, this is somewhat different than simply a specific factual finding.
04-340 +++$+++ 22171 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in this particular case, they found that the facts that we alleged did not give rise to a right to compensation under State law. And this Court in Williamson said once you've been denied compensation in State court, once it's certain that the State courts will not provide you relief under State law, you have a ripe Federal takings claim. At that point, the Federal courts must be able to look at the factual questions underpinning the Federal takings analysis, so that the questions of whether in fact this law substantially advances a legitimate government interest or it interferes unduly with the reasonable investment-backed expectations under Penn Central, which requires a detailed ad hoc factual analysis, that that must be done by the Federal courts and cannot be precluded by a State court determination that is not considering the Federal questions at the time or -- and it cannot even under this Court's decision in Williamson County -- cannot consider the Federal question that's at issue. The -- the city -- the city contends that -- that a decision in our favor would result in --
04-340 +++$+++ 22172 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I interrupt? Because I'm just not following one part of your argument. Are you saying that the Pennsylvania analysis, the ad hoc analysis, was not made in the State court?
04-340 +++$+++ 22173 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I'm not saying that it was not made. I'm saying that a State court disposed of that claim without doing a factual trial, but simply based on the allegations in the complaint.
04-340 +++$+++ 22174 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why -- now, why should that not be binding on you if your allegations were, in fact, insufficient under Penn Central?
04-340 +++$+++ 22175 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The court did not find that they were insufficient under Penn Central. The court found that under State compensation law, which it believed was congruent with this Court's decision in Penn Central --
04-340 +++$+++ 22176 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I can understand how you should be free to argue that in fact the two rules are not congruent, that there's broader recovery under the Federal system. But if we decided that the two -- if we agreed with them that they were congruent, then why should not issue preclusion apply?
04-340 +++$+++ 22177 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Issue preclusion should not apply because it prevents the Federal courts from deciding the Federal takings questions. If --
04-340 +++$+++ 22178 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but -- but it's just a conclusion from issues that have -- have been resolved on which normally we would defer to the State court. Now, why -- why shouldn't we defer here again?
04-340 +++$+++ 22179 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You shouldn't defer here because in Williamson County, you required that parties go through two litigations.
04-340 +++$+++ 22180 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right.
04-340 +++$+++ 22181 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And all the rules of res judicata are designed to prevent two litigations and to require a single litigation. It makes no sense, in the context of a two-litigation system that this Court set up, to then impose issue preclusion. Otherwise, Federal --
04-340 +++$+++ 22182 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it isn't --
04-340 +++$+++ 22183 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That doesn't make sense.
04-340 +++$+++ 22184 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It isn't clear from Williamson County that this Court envisioned two -- two separate determinations of fact issues: one in State court and one in Federal. That isn't clear from the face of Williamson County. That was a case where it was thought, at least, by members of the Court that the claims in that case just weren't ripe yet.
04-340 +++$+++ 22185 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-340 +++$+++ 22186 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And I don't -- I didn't understand it to set up parallel systems of factual determinations.
04-340 +++$+++ 22187 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It clearly set up parallel systems of litigation. It did not discuss the question of what happens in the second litigation, but I think that this Court in England decided the proper solution to a situation where the Federal law requires --
04-340 +++$+++ 22188 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, England was an abstention case and had to deal with the effect of 28 U.S. Code 1738, the Full Faith and Credit Act. But I didn't think that the England case just totally destroyed the notion of full faith and credit --
04-340 +++$+++ 22189 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The England case --
04-340 +++$+++ 22190 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- as -- as applied section 1738.
04-340 +++$+++ 22191 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The England case held that when you're required to do two separate litigations, the first in State court and the second in Federal court as a result of Pullman abstention, that in the second case there would be no factual or legal issues that were decided in the State court that would be preclusive in deciding the Federal --
04-340 +++$+++ 22192 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ My --
04-340 +++$+++ 22193 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ This is not a -- a Pullman abstention case here.
04-340 +++$+++ 22194 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As it comes to this Court, it is not a Pullman abstention case.
04-340 +++$+++ 22195 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No.
04-340 +++$+++ 22196 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is a case where Williamson County has held that before you can bring your Federal takings claim, you must first go to State court and obtain a determination of whether you're entitled to compensation.
04-340 +++$+++ 22197 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't think that Williamson County ever contemplated that you would have to take your case all the way to the Supreme Court of the State. Now, it may be that you had no choice once you got into the State court.
04-340 +++$+++ 22198 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's correct, Mr. Chief Justice. The Williamson County case says that you have to go to State court and use the State procedures available for State compensation. You cannot do that without going through the appellate procedure provided by the State courts --
04-340 +++$+++ 22199 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think Williamson County by its terms spoke of going to State court and -- rather than just a State administrative proceeding?
04-340 +++$+++ 22200 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As -- as I read the Williamson County opinion, it says that you have to use the State procedures that are available to obtain compensation. And the State procedures in California are an inverse condemnation claim under State law, i.e., a State compensation claim, which, as I read Williamson County -- and I think all the other practitioners of takings law read Williamson County -- means that you have to go to State court and ask for compensation before you can proceed to Federal court. Now, it is possible that a State could have an administrative procedure instead of a judicial procedure in order to decide takings claim -- rather, to decide State compensation claims. If there were such an administrative procedure for obtaining State compensation, then that perhaps is what Williamson County envisioned that you would follow. But I think Williamson County says whatever procedure is provided by the State, you have to exhaust that and obtain a denial from the State of your right to compensation before you can proceed to Federal court.
04-340 +++$+++ 22201 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If you -- if you disagreed with the resolution of an issue by the State court, which issue would be determinative of your Federal claim, if we hold against you here? Do you think you would have a right to appeal that State court -- State Supreme Court resolution of that issue to this Court?
04-340 +++$+++ 22202 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
04-340 +++$+++ 22203 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What -- what strikes me as strange about this -- this system is -- is not leaving it to the State courts to make these decisions. That's perfectly fine. We do that all the time. But these are decisions that are going to be conclusive on -- on a Federal claim, and yet there's no way to -- to appeal from the State Supreme Court here.
04-340 +++$+++ 22204 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's exactly the problem. That was the problem we faced when the California Supreme Court did not decide our Federal claims. I think because they only decided our State claims, we were not able to seek certiorari on the merits from the State Supreme Court decision, and then I think the procedure contemplated by this Court in Williamson County was that you could return to Federal court with your Federal claim once the State compensation claim --
04-340 +++$+++ 22205 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Didn't you seek to reserve the Federal question in the -- in the State court litigation?
04-340 +++$+++ 22206 +++$+++ TRUE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We did reserve the Federal question in the State court litigation. I'd like to reserve the balance of my time.
04-340 +++$+++ 22207 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Very well, Mr. Utrecht. Mr. Waxman.
04-340 +++$+++ 22209 +++$+++ FALSE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The respondents had a full and fair opportunity to litigate every issue relevant to their Federal claims. When they came to Federal court, they agreed that, with one exception, all of the relevant issues, both the ultimate issue of a reasonable relationship and all of the predicate issues that we recited, as Justice Ginsburg noted, at pages 10 and at 11 of our brief, had already been litigated. They said that they -- there was one difference, which is that they claimed that under the Fifth Amendment, the level of scrutiny under a substantially advances claim, which is what they were litigating, was the Nollan/Dolan test of rough proportionality, not the more deferential standard of review that the California Supreme Court applied in its decision. And as to that issue, they received a full litigation and adjudication on the merits in the courts below. They petitioned this Court on that substantive question.
04-340 +++$+++ 22210 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You say the courts below. Are you talking about the California State courts or the Ninth Circuit?
04-340 +++$+++ 22211 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, here I was referring to the district court and the Ninth Circuit following the California Supreme Court's decision. They came to the courts and said there's one thing that's different. There's one element that's different, and that is Nollan and Dolan. Heightened scrutiny should apply to a financial exaction of this sort. The California Supreme Court disagreed under California law. We want to litigate that issue here, and they did. The district court ruled against them on the merits. The Ninth Circuit ruled against them on the merits. They petitioned this Court in question 2. This Court denied review. In all other respects, their claims -- their case under their Federal claims, which were not claim-precluded, were, as the district court found, quote, based on the exact same facts and circumstances argued before the State courts. Now, they -- their case here boils down -- and it's quite clear from their reply brief, and Mr. Utrecht has reaffirmed it -- to an argument that this Court's 1963 decision in England ought to be extended to the Williamson County context. Now, I believe that England is distinguishable -- highly distinguishable from the facts or the circumstances of a Williamson County remand for any number of reasons that I can explain. But ultimately my point is this. England is fatal to them. If England were extended to this circumstance, they would lose, and that is because in England, the Court was entirely clear that as to the State law issue that the Supreme Court said should be presented to the Louisiana courts first for determination, there was no doubt that issue preclusion was going to apply to that. The question was whether or not principles of preclusion would bar them from coming back to Federal court otherwise. In other words, in England, the question -- there was a challenge by chiropractors to a State law that said chiropractors have to go to medical school or something like that. A Federal complaint was raised under 1983, saying that violates our Fourteenth Amendment rights. That's wrong. The Supreme Court said, well, wait a minute. We're not sure that the Louisiana law covers chiropractors, and if it doesn't, we can avoid the Federal constitutional question. So we're going to, in effect, certify to the Louisiana courts the question, the State law question, whether chiropractors are covered. Now --
04-340 +++$+++ 22212 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I mean, they didn't really certify it.
04-340 +++$+++ 22213 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. They used -- they -- they abstained under the Pullman doctrine which, as this Court has explained, is a procedure that is akin to the certification process where States use it. But in any event, no one -- when -- no one would have thought for a moment that having gone to litigate that State law issue in State court, if they had lost, England -- the chiropractors could come back and say, okay, we think that we shouldn't have to comply with this law for two reasons: one, because we're not covered by the law even though the Louisiana courts thought so; and two, if we were, the Fourteenth Amendment would prohibit it. They -- the question on which you granted review is limited to those issues, and there is a fair question on the record in this case whether any of those issues are really before the Court now. But as to those issues, for which Williamson County requires that a party resort first to State procedures, whether issue preclusion applies, and the -- the extension of England by analogy to this would dictate the answer yes. It may not apply if -- if you extend England to all other types of issues that a party may litigate along with their Williamson County ripening exercise. But the very determination that Federal law requires them to obtain under State law, prior to stating a ripe Federal constitutional claim, of course, gets issue preclusion. Now, the question was asked --
04-340 +++$+++ 22214 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you think it's open to us to reconsider aspects of Williamson County in this case?
04-340 +++$+++ 22215 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think -- well, I would have to take a very deep breath before I told the Court that it was not open to the Court to reconsider just about anything that touched on it. I think it would be --
04-340 +++$+++ 22216 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It -- frankly, it isn't clear to me that the Court ever contemplated just cutting off any determination in Federal court of takings claims in the way that it seems to work out by application of Williamson County.
04-340 +++$+++ 22217 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me explain why I think it would be imprudent for the Court to resolve it and then explain why I think it's fair to say that the Court didn't consider one way or the other principles of preclusion in application of the Full Faith and Credit Act in Williamson County.
04-340 +++$+++ 22218 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it's clear we didn't. So now we're faced with the consequences of that, and it looks to me like the lower courts have run pretty far with Williamson County. So what's a takings claimant supposed to do?
04-340 +++$+++ 22219 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think it would be imprudent to decide -- I -- I think that the Court will have to elaborate on the Williamson County requirement and how the procedures work. I hope, after all the preparation for this argument, I'll be able to participate in some way in that debate because it's a really interesting question. But it's not presented here because even if you were to reconsider Williamson County, even if you were to overrule it, it wouldn't affect the outcome here. We know two things are true in this case, whatever Williamson County means doesn't mean or shouldn't mean. Every issue relevant to the Federal constitutional claims was fully and fairly litigated in this case, and we also know that under --
04-340 +++$+++ 22220 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, now, wait a minute. You don't mean that the Fifth Amendment question was fully and fairly litigated in the Supreme Court of California.
04-340 +++$+++ 22221 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. The Supreme Court of California said that it was not deciding the Federal -- the Fifth Amendment Federal constitutional question. But they -- they concede that all of the issues that make up the -- the Federal constitutional question were fully and fairly litigated in the California courts except the question of whether the Fifth Amendment, as opposed to the California takings provision, is entitled to --
04-340 +++$+++ 22222 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, what --
04-340 +++$+++ 22223 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to Nollan and Dolan. And that was litigated here.
04-340 +++$+++ 22224 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What preclusion law do you apply? The Ninth Circuit apparently applied Oregon preclusion law.
04-340 +++$+++ 22225 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- it's -- the Full Faith and Credit Act requires that you -- requires that you apply the preclusion law of the State that rendered the judgment to which --
04-340 +++$+++ 22226 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Which would be California.
04-340 +++$+++ 22227 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Which would be California. And I do think, with respect, Mr. Chief Justice, that the California Supreme Court -- I'm sorry -- the Ninth Circuit made clear that it was applying California preclusion law. It cited the California Supreme -- a -- California authorities, and it correctly recited the elements of the California preclusion law in this regard. It did make reference to its prior determination in Dodd v. Hood River, which was an Oregon case, in which the Ninth Circuit decided that an England reservation in the Williamson County context was effective with respect to claim preclusion but not issue preclusion. And in that respect -- and this I think goes back to Justice O'Connor's question about, you know, what -- what could we have been thinking or not thinking in Williamson County -- the -- the Dodd case provides a pretty good example. At the time this Court decided Williamson County, many, probably most States did not have a substantive takings jurisprudence that was akin to the Federal standard. For example, California itself, New York didn't provide compensation for regulatory takings at all. In those States, there would be no question of either claim or issue preclusion because in the course of deciding whether or not compensation was due under State law, there would be few, if any, common issues decided. Now, as the Ninth Circuit explained in Dodd v. Hood River, Oregon recognizes -- in the context of regulatory takings, recognizes an Agins type claim, that is where you are completely denied all economic value to your -- I'm sorry -- a Lucas claim, but they don't recognize the Penn Central standard. They don't provide compensation unless you are denied all economic value.
04-340 +++$+++ 22228 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Waxman, can I ask you this question? Supposing the California court had decided the Federal -- the Federal Fifth Amendment question or in the -- the England case supposing the Louisiana State court had decided the Fourteenth Amendment question, would there be issue preclusion on that issue in -- in that -- in that sequence?
04-340 +++$+++ 22229 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Issue preclusion or claim preclusion?
04-340 +++$+++ 22230 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Either one.
04-340 +++$+++ 22231 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the answer is there -- if England -- if the England decision were extended to the Williamson County context, there would not be claim preclusion. We think it shouldn't be extended, and therefore if they litigated both their State claim and their Federal claim in State court, we think they would be barred both by issue and claim preclusion.
04-340 +++$+++ 22232 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Of course, they could have come up here, though. I mean, maybe that was their mistake in not making their Federal claim in the California court. The California court would have denied their State claim, presumably denied their Federal claim, and -- and both could have come up here I suppose. Or -- or would the California's -- would California's determination of the State questions preclude a separate determination of the Federal questions?
04-340 +++$+++ 22233 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I don't -- I don't think so, Justice Scalia. I think it was certainly open to them and the -- the Ninth Circuit, in its first opinion, made clear that it was open to them, when they went -- when they did their Williamson County ripening, to also litigate the Federal constitutional question. And in that instance, if they lost in the California courts, of course, they could have petitioned. They couldn't -- if they lost on the State constitution, the court would have had to reach the Federal constitutional question as well. But I think, Justice Scalia, more to your point about what actually happened here, I think that a very good argument -- I -- I don't think that there's really much doubt that if they had petitioned for certiorari from the California Supreme Court decision, you could easily have granted review under Zacchini and Michigan v. Long and Ruiz because the California Supreme Court said, to be sure we are deciding only the State constitutional question. We are not ruling on the Fifth Amendment. But they made very clear that, whatever congruent means -- they made very clear that they looked to this Court's statements and expositions about the meaning of the Fifth Amendment to construe the claims the same. And as this Court said in Ohio v. Reiner, I think 2 years ago, when a State court's interpretation of State law has been influenced by an accompanying interpretation of Federal law, we may review. And in fact, if you think about it, think of almost every takings case that you've decided since Williamson County. With the exception of the Tahoe compact cases, they are all from State court decisions. Lucas, Palazzolo, First English, Nolan and Dollan, Yee, Pennell, McDonald, San Diego, they are all --
04-340 +++$+++ 22234 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Monterey -- Monterey Dunes was from the United States district court.
04-340 +++$+++ 22235 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, because that was a case -- that's the other one that I was thinking of this morning. That was a case that was filed in the district court and litigated in the district court. And it raises a real anomaly about whether or not this case even really presents the question on which you granted review because their -- the theory that they have pursued in State court and at this round in Federal court is that there is a takings violation under both the State and the Federal Constitution under the so-called substantially advances prong. Their complaints allege a Penn Central violation, but their briefs in the lower court -- in the lower Federal courts in this proceeding and in the State courts don't discuss Penn Central at all, as the California Supreme Court in footnote 14 of its opinion explained. So if this is just a substantially advances claim, it raises the question, number one, whether in the context of legislation, there is a substantially advances prong in the Fifth Amendment, a question that you're -- you're asked -- that you are presumably addressing in Lingle v. Chevron. If there is, it raises the separate question posed by this Court's decision in Yee whether that is a claim for compensation. In other words, what this Court said in Yee is when you challenge, under the Fifth Amendment, legislation on the grounds that it doesn't substantially advance a legitimate government objective, this Court said, that's not a claim for compensation. That is a claim that the ordinance be struck down and not applied. And that's what they're litigating here. Now, they have -- and so the question is if it's not a claim for compensation, is it subject to Williamson County ripening? Why should you have to go to State court? So there are a lot of this -- the Conference of State Chief Justices have filed an amicus brief in support actually of us in this case, saying we don't see that the facts of this case present the question on which you granted review. I think it's fairer to say it's not clear because the petitioners did challenge this ordinance not only on its face, but as applied. And although the district court below found that it wasn't a real as-applied challenge because they couldn't in any meaningful way distinguish themselves from the other 500 residential hotels in San Francisco, all of whom are concededly subject to the hotel conversion ordinance. At least I suppose in theory, there is some claim for compensation for the temporary period in which they were subject to the hotel conversion ordinance. So I -- I don't know. I -- you granted cert in the case. We'd like to get the -- the question answered, but I think the reason this long disquisition, Justice Kennedy, about Del Monte Dunes is in Del Monte Dunes, it was a substantially advance claim, and I think it was thought that there was no need to engage in Williamson County ripening.
04-340 +++$+++ 22236 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Let's take a -- may I -- may I, in effect, approach it with a simpler example, which -- which is not this case, but I -- I just want to know how -- how the -- the systems work together. Let's assume that, in fact, a -- a Lucas kind of claim had been involved, and the -- the State courts said we understand Lucas. We're applying Lucas. And in point of fact, following the Lucas standard, there are plenty of uses that are still left on this land, so that there's no taking under -- under Lucas. And let's assume that they -- they go through the State system. They lose. They don't petition here for cert. Instead, they go into the -- the district court with a Fifth Amendment claim. Is it open to them in the district court to make this argument? Don't apply issue preclusion to our Lucas claim. The Lucas -- to -- to the -- to the determinations, the reasonable use determination in -- in Lucas. Don't do it because although the State court purported to be applying Lucas, it really was not. It was not following the Lucas standard. It was applying something much more favorable to the State. And therefore, any determination on that issue should not get preclusion here. We ought to be able to litigate de novo even though, on the face of it, we seemed to have litigated the Lucas issue and the State court decided it. Could they make that argument? And -- and if it were sound, would -- would preclusion principles give way?
04-340 +++$+++ 22237 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At most -- I mean, they could certainly make the argument. At most, preclusion would give way on the ultimate Lucas question, not all of the subsidiary issues that were resolved en route to that determination, issues akin to the ones that we recited at pages 10 and 11 of our brief. That is, if the district -- if the State court finds, you know, that the property is in such and such a place and on such and such a year, this thing happened or that the ordinance, as it applied, had this effect or that effect, there certainly would be no possible argument that issue preclusion wouldn't apply because they -- those were necessary determinations and they had a full and fair opportunity to determine it. As to the ultimate issue, this would be -- the Full Faith and Credit Act directs the Federal court to ask what would the law of California say about this. If they tried to then bring their Federal constitutional Lucas theory in State court, would issue preclusion or claim preclusion principles bar a second bite at the litigation apple? The answer ordinarily -- and you've asked me to assume that the tests that they have -- they purport to be stating the Federal standard. Ordinarily the answer would be no if the argument simply is they made a mistake. I mean, that's -- that's what happens in issue preclusion. That's what in Allen v. McCurry and -- and all of the cases in which this Court has applied full faith and credit, Kremer and -- and -- I'm forgetting the names of the other cases. The argument was, yes, they thought they were adjudicating rights under the Fourth Amendment, but they were wrong, and issue preclusion shouldn't apply. I'm -- I'm qualifying my answer a little bit because I do think that if you came to Federal court and said, look, this was a sham or they -- they -- their analysis was so skewed that it can't fairly be said that they were really applying the Federal standard, something like, you know, the -- the AEDPA standard now that -- that you get review if it's an -- not just an incorrect determination, but a wholly unreasonable application of law or fact. Then I think you would look and see, well, would a State court say, well, that's right. I mean, if your allegation is that they were so far off the reservation that it really wasn't a determination of that issue, I think you get a new review. I mean, I do think --
04-340 +++$+++ 22238 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, was there an allegation --
04-340 +++$+++ 22239 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I guess in the --
04-340 +++$+++ 22240 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- at any point here -- was there an allegation at any point here that the State procedures were inadequate to protect property rights?
04-340 +++$+++ 22241 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, to the contrary. Not only -- there's no Pullman issue presented in this case, but the procedural posture of this case demonstrates, if anything, a full-throated appeal to the State courts. They --
04-340 +++$+++ 22242 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it's not so much that there weren't appellate procedures, but that the procedures and the variance procedures and -- and a multiplicity of agencies here were just so complex that it amounted to an -- inadequate remedies to protect against a taking.
04-340 +++$+++ 22243 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There have been absolutely no such allegations made in this case. And I think a -- I think that the San Remo would have to concede that although there was a plethora of litigation in the State courts and in the lower Federal courts about the zoning determinations and whether a conditional use permit was or wasn't required, the -- the hotel conversion ordinance, the ordinance that requires the payment of this in lieu fee, applies across the board to all residential hotels based -- wherever they're located in the city, whether they're in a historic district or not and whether they have to be rezoned or not. It was a simple, straightforward question about whether an ordinance that says if you run a residential hotel or you have residential rooms that you have certified as of the date the ordinance was enacted and you want to change them permanently to full-time tourist use, you have to bring an equivalent number of units on line or you have to pay an in lieu fee to the city's building fund. And they made a challenge, like many people have, that substantively that violates the Federal and State takings clause. That is a taking of private property without just compensation. But it applies to all the residential hotels in the city wherever they're located, regardless of whether they need variances or -- or anything like that. Now, in this case they went first to the Superior Court in San Francisco and they filed an administrative mandamus claim challenging the zoning determination that was made in their case because they're in a historic district. And at the same time, they went to the Federal court and they raised all of their takings claims with respect to the ordinance and the zoning issues. They got a preliminary injunction in Federal court which was then -- but then lost a summary -- they had summary judgment issued against them on all the substantive -- all the claims in their case. When they came to the Ninth Circuit, they asked the Ninth Circuit to abstain under Pullman because they had this municipal law question pending in the superior court. It had been pending for 5 years, and that might somehow obviate or change the constitutional question. And they then went to -- they -- the -- the Ninth Circuit noted that it was rather unusual for the plaintiff to be invoking Pullman abstention and certainly to be doing so for the first time on appeal after losing in the district court, but nonetheless, the Ninth Circuit said fine. And they then went to State court, and they pressed not only their pending municipal law question, but they also made their takings claims under Penn Central and under the substantially advance prong both as applied and both facial under the State constitution. And they received a full and fair hearing on those claims in the superior court, in the court of appeal where they won, and in the California Supreme Court where they ultimately lost 4 to 3. There -- I don't believe there is any argument made or available in this case that there was a denial of a full and fair opportunity to litigate those issues as to which preclusion is required.
04-340 +++$+++ 22244 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But they said there was no litigation because it was just decided. They didn't plead enough to state a claim for relief.
04-340 +++$+++ 22245 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- the California Supreme Court decision makes clear at page 113a of the petition appendix that it decided the takings claims, the substantially advance claims, on a demurrer and that they decided it, therefore, based on the factual allegations of the complaint, matters subject to judicial notice, of which there were many, and facts and circumstances that were not disputed. I mean, it -- there's no such thing, I don't believe, as the resolution of a legal claim in which no issues are decided. There were plenty of issues decided in this case.
04-340 +++$+++ 22246 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Decided but not litigated. I mean, the -- the problem is that -- that claim preclusion normally assumes that the issue is, in fact, litigated.
04-340 +++$+++ 22247 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-340 +++$+++ 22248 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And his -- he's arguing it was not.
04-340 +++$+++ 22249 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the issue of whether or not the hotel -- whether or not the -- San Francisco's hotel conversion ordinance was reasonably related to the city's objective was litigated with a vengeance. It was litigated to the point of dozens, if not hundreds of pages in the State court. The State court -- the State courts made a number of subsidiary findings leading to their conclusion that, both on its face and as applied, the hotel conversion ordinance was reasonably related to the city's legitimate objective of retaining low-cost rental housing for the elderly, the disabled, and the poor.
04-340 +++$+++ 22250 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Tell me how that statement that you just made, fully litigated, squares with the fact that -- I thought you said a moment ago it was decided on a demurrer.
04-340 +++$+++ 22251 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's --
04-340 +++$+++ 22252 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm -- I'm confused here.
04-340 +++$+++ 22253 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's the application of law to fact. What the Court decided -- this Court said, I think in Yee --
04-340 +++$+++ 22254 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you're -- you're saying that the facts were -- were independently developed before the demurrer was filed and granted?
04-340 +++$+++ 22255 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. The -- the courts were asked to take judicial notice of a number of things. They --
04-340 +++$+++ 22256 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So it was not decided simply on pleadings.
04-340 +++$+++ 22257 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
04-340 +++$+++ 22258 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-340 +++$+++ 22259 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, what the court --
04-340 +++$+++ 22260 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ A demurrer --
04-340 +++$+++ 22261 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry.
04-340 +++$+++ 22262 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ A demurrer is decided on the pleadings, isn't it?
04-340 +++$+++ 22263 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it -- what the court said -- and I think this is a -- what the California Supreme Court said at page -- I think it was page 113a and they also reiterate this point at page 139a, footnote 12 -- is this is a demurrer. So we take -- we accept as true the allegations of the complaint. Plus, we take judicial notice of all the things that the parties asked us to take notice of, which are matters of public record, of which there were many, many, many in this case, including, for example, the fact that every year from 1990 -- well, every year from the -- from 1983 on, when they took over operation of this property, they filed with the city an annual report that listed that, A, the determination that all 62 of their rooms were for residential use and then explained -- and then stated out the exact number of rooms by quarter that were, in fact, used by -- for long-term residences and those that, during the summer months, were used for tourist use. The court took judicial notice of that, as it was appropriate, en route to its decision -- this is a subsidiary issue I suppose -- that the conversion of this hotel to full-time tourist use would, in fact, cause a loss in the stock of available affordable housing. That was an issue that was determined in this case. And the ultimate question decided by the court was a mixed question. It was the application of law to fact, as this Court explained, I think in Yee, is characteristic of substantially advances claims. Thank you very much.
04-340 +++$+++ 22264 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Waxman. Mr. Utrecht, you have 4 minutes remaining.
04-340 +++$+++ 22266 +++$+++ FALSE +++$+++ MR. UTRECHT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. There's no question that Williamson County creates problems. The Ninth Circuit in this case did not just issue a Pullman abstention order the first time we were there. They dismissed our as-applied claims as unripe. It dismissed our facial claim based on economic viability as unripe. So we're squarely within the context contemplated by Williamson County; i.e., we proceeded in State court with our State compensation claim in order to ripen the Federal claim. The city acknowledges, as a result of that, that there's no claim preclusion. And this Court's decision in Migra says that if there's a reason not to apply claim preclusion, there should also be a reason not to apply issue preclusion, that there should be an exception for both or an exception for neither. In this case, in addition to acknowledging an exception for claim preclusion, Mr. Waxman also acknowledged that if the State court was, as I -- my notes show, so far off the reservation, the Federal court could revisit the question. The problem, of course, with so far off the reservation is that might be a good test for this Court to adopt, but if the city's position is correct, this Court does not have that opportunity. This Court is stuck with whatever law the State imposes under issue preclusion. So this Court is not free, if the city is correct, to create some special exception. I think the only basis for finding a separate exception in this case is the one that this Court set out in England. I see no reason that it shouldn't be extended to this circumstance. Unless there are any questions, I have nothing further.
04-340 +++$+++ 22267 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Utrecht. The case is submitted.
04-368 +++$+++ 22271 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument now in Arthur Andersen v. United States. Ms. Mahoney.
04-368 +++$+++ 22273 +++$+++ FALSE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The Government concedes that the destruction of documents in anticipation of a proceeding was not a crime in the fall of 2001 based upon a statutory rule that Congress had preserved for over a century. The central question in this case is whether Congress, nevertheless, intended to make a polite request to engage in that lawful conduct, a form of witness tampering punishable by ten years in prison. We ask this Court to reject that interpretation of the statute and to hold that Arthur Andersen did not commit a crime. I'd like to turn first to the term "corruptly persuade" as it's used in Section 1512 and explain why Arthur Andersen's interpretation represents not only a reasonable reading, but the best reading of the language in the statute. The first thing that we see when we look at the statutory context is that Congress did not prohibit -- did not prohibit -- all persuasion to destroy documents for the specific purpose of making them unavailable for use in an official proceeding. It did not, because it did not simply say, "Anyone who persuades a witness to do this has violated the statute." It added a very important limitation, and that is the word "corruptly" -- "corruptly persuades." So what kinds of requests are excluded from the definition? When is it that it's okay to persuade someone to destroy a document for use in an official proceeding? And the answer, we think, based on the traditional meaning of the term "corruptly," is that "corruptly" means that you have persuaded someone in a fashion that uses improper means, such as bribery, or you've asked the witness to violate duties imposed by other law, whether that's the duties imposed by contempt or the duties imposed by a whole range of statutes that govern the obligations of people in our society.
04-368 +++$+++ 22274 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But suppose you persuaded -- and I know that is not this case -- suppose you persuaded the person to destroy the documents in order to conceal a fraud. Would that be corrupt?
04-368 +++$+++ 22275 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If -- Your Honor, if it was a crime, then, yes --
04-368 +++$+++ 22276 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, in order to -- let's say it's a revenue audit, and you know that it's a fraud, and you persuade somebody to destroy the documents in order to conceal the fraud.
04-368 +++$+++ 22277 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay, if this is in a -- in the course of a proceeding, of course, it's obviously going to be a crime, it's obviously going to be prohibited by Section 1512. If it is in advance of a proceeding -- and let's assume that you know that a proceeding --
04-368 +++$+++ 22278 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-368 +++$+++ 22279 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- is likely, then the answer depends on whether you know that you are concealing -- that you know a crime has been committed. And if you know that a crime has bee committed, then you are violating a federal statute, 18 U.S.C. --
04-368 +++$+++ 22280 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ My question is, Does that give -- would that give some content to the meaning of "corruptly," in your view?
04-368 +++$+++ 22281 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in that case, if the witness knows that you have committed a crime, and you are asking them to violate, they have a duty, under those circumstances, not to assist you in concealing your offense. That's a duty that's imposed by criminal law. So if you ask them to violate that duty, then you are corrupting that witness; and, very definitely, that would fall within the interpretation of the statute that Arthur Andersen is advancing here. And it fits, Your Honor, with what Congress really did for a hundred years before 2002. What it did is, it said that -- under the Pettibone rule, that it is not a crime to simply destroy documents in anticipation of a proceeding. But if you know that -- if you know that a crime has been -- a crime has been committed and you destroy documents, that is a crime.
04-368 +++$+++ 22282 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I --
04-368 +++$+++ 22283 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's a crime --
04-368 +++$+++ 22284 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- may I ask you about another provision, Section 1515(c)? And that says, this chapter -- and it -- and it's referring back to Section 1512 -- "does not prohibit or punish the providing of lawful bona fide legal representation services in connection with, or anticipation of, an official proceeding." Now, how -- did Ms. Temple invoke that provision in this case?
04-368 +++$+++ 22285 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the -- that section was not argued to the District Court, but it was invoked in the following way, in two ways. First of all, there was evidence introduced in the case that she was providing legal advice. And since it is not in affirmative defense, it really was the Government's burden at all times, at least once there was evidence introduced that she was providing legal advice, to get a finding from the jury that she was not engaged in bona fide and lawful services, particularly in this case, Your Honor, where the Government argued, told the jury, that Nancy Temple was the, quote, "central figure," end quote, in this -- in this episode. And in addition --
04-368 +++$+++ 22286 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How do you know it's not an affirmative defense?
04-368 +++$+++ 22287 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it doesn't read like an affirmative defense, Your Honor. It doesn't say "affirmative defense." It simply -- and in -- when it was introduced, it was listed in the legislation as a Rule of Construction. And I think that's exactly how it reads. It doesn't purport to put the burden of proof on Andersen, or on Nancy Temple. And, Your honor, I think, actually --
04-368 +++$+++ 22288 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, of course, it has the word "lawful," "the providing of lawful bona fide legal representation services." So, you know, it could be argued that if she violating the other provisions, she's still in violation.
04-368 +++$+++ 22289 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, under the Government's definition of "corruptly," she couldn't have been providing lawful bona fide services.
04-368 +++$+++ 22290 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's what I want to know, is, in light of the Government's position and the way this case was resolved, how does that fit, and what does it do to, that so-called safe-harbor provision? I'm just curious how it all plays out.
04-368 +++$+++ 22291 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think it negates it in its entirety, because what the jury was instructed in this case was that any intent to impede the fact-finding ability of a possible future proceeding, even if the Andersen employee had a good-faith and sincere belief that their conduct conformed to the law, was corrupt. They were instructed that they must find that.
04-368 +++$+++ 22292 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, does that have the effect of negating the safe-harbor provision, in your view?
04-368 +++$+++ 22293 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. But I think, Your Honor -- because I think it would be impossible to satisfy it under this instruction. In addition, I also think that the -- that this provision really just demonstrates that the Government's interpretation of "corruptly" is wrong, to begin with.
04-368 +++$+++ 22294 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's the effect, in 1512(b), of the word "knowingly"?
04-368 +++$+++ 22295 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think, Your Honor, that "knowingly" means, in this context -- just as it means "knowingly intimidate," "knowingly threatened," "knowingly corruptly persuade" -- that means that you have to know that your persuasion is asking the witness to violate their duties, to violate the law. You have to know that it's corrupt.
04-368 +++$+++ 22296 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't that satisfied at least by the part of the definition that refers to "subverting an official proceeding"? I mean, that certainly carries, to me, the implication that you realize that you're doing something wrong. An official proceeding is, prima facie at least, lawful, and you are subverting it. Doesn't that satisfy the "knowingly" requirement?
04-368 +++$+++ 22297 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Your Honor, because the definition that was given to this jury was "subvert, undermine, or impede," and not just the integrity of the proceeding; but, rather, the fact-finding ability of a future proceeding --
04-368 +++$+++ 22298 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I --
04-368 +++$+++ 22299 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- including a governmental inquiry.
04-368 +++$+++ 22300 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I think I would go far in agreeing with you if the -- if the instruction had been "merely to impede" or "merely to undermine." Now, I guess that gets to a question I wanted somebody to answer, and you can probably do it. Did the -- did the Court, in giving the instructions, ever refer -- in defining the term, ever refer to any of these three possibilities, separately, or did it do it simply as "subvert, undermine, or" -- what was the third? -- impede"?
04-368 +++$+++ 22301 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Impede. I believe -- I believe it was done as a -- as a -- as a group.
04-368 +++$+++ 22302 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. It did --
04-368 +++$+++ 22303 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it says "or."
04-368 +++$+++ 22304 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- one other question. In anticipation of that instruction -- I assume the counsel new what was coming -- did the Government ever argue to the jury that "merely impeding," alone, or "merely undermining," alone, would be sufficient, as distinct from saying, "If he subverts, undermines, and impedes"?
04-368 +++$+++ 22305 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I'm not certain of the answer, except that I do know that the Government did argue that simply -- the mere idea that David Duncan testified that, you know, he thought that the -- somebody at the SEC might want to look at this information someday was sufficient to satisfy the instructions. And so, I think it is a fair inference that the way that they argued this case to the jury was that any intent to keep any kind of information away from the SEC was enough to satisfy the definition in this case. And, in fact, Your Honor, when the instructions were being debated, the pattern instruction for the Fifth Circuit for "corruptly," under 1503, actually is -- includes the words "knowingly or dishonestly to subvert the integrity of the proceeding." The Government insisted that the word "dishonestly" not be used, that the word "impede" be added, and they changed "fact-finding" a bit -- changed it from "subverting the proceedings" to "the fact-finding ability." They did everything they could to strip this instruction of any mens rea, and then went beyond that and said, "And in addition, even if the Andersen employees had a good-faith and sincere belief that their conduct did not violate the law, it's still a crime." So, what we have here is an array of testimony from people who say, "We honestly believed that this was permissible conduct," but the jury was told that they had to convict anyway if there was any possible partial motivation to impede possible future fact-finding --
04-368 +++$+++ 22306 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How does --
04-368 +++$+++ 22307 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of an inquiry.
04-368 +++$+++ 22308 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- how does -- how does David Duncan's guilty plea -- he entered a plea of guilty to a charge of obstruction, and he confessed the intent to impede the SEC investigation by shredding documents. So, what were the elements of that offense that are absent in this one?
04-368 +++$+++ 22309 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, he plead guilty to the offense, as described to him and agreed upon between him and his lawyer; in other -- and the Government -- which is basically the instruction that was given in this case. When he testified in this proceeding, he repeatedly said, despite his guilty plea, that he did not believe, at the time, that he had done anything unlawful or improper. He said, "I thought my conduct was perfectly appropriate. I plead guilty because I was persuaded that it didn't matter what I thought at the time."
04-368 +++$+++ 22310 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What sentence did he get, by the way?
04-368 +++$+++ 22311 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He's not been sentenced yet, Your Honor. And he was explicit throughout. He also said -- he never testified that he even thought that an SEC proceeding was probable at the time; he just thought it was possible. Nor did he say that he ever consciously tried to hide the truth or hide the facts. What he did say is that, "Yes, part of what was on my mind at the time that I asked for compliance with this policy was that the SEC and others might want to look at these files someday, and I'd better get them in compliance with our retention policy, because I know that drafts and notes are the kinds of things that could be misused and misconstrued at some point in the future." That was the basis of his guilty plea, that was the basis of his testimony in this case. And the Government's interpretation, the instructions that were given to this jury, deprived the term "corruptly persuade" of any of its ordinary and traditional meaning. Under the Government's view, for instance, of "corruptly," bribery becomes irrelevant under this statute. I mean, if you look at this statute, and you say, "What was Congress trying to prohibit here when it says" -- it's a got a list of wrongful means of interfering with witnesses. It says "intimidate" and "threaten" and "use of physical force," and it says "corruptly persuades." The first thing that would come to your mind is bribery. But bribery is irrelevant under the Government's interpretation, and let me explain why. Because they say that, "Well, yes, it's true, it says'corruptly persuade,' but all that means if you -- is if you had any intent to impede the fact-finding ability of a proceeding, then you're guilty, just for asking. It doesn't matter whether you used any money -- monetary compensation in order to extract this behavior; you're automatically guilty. But if you use bribery --
04-368 +++$+++ 22312 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I assume it also would make "intimidate," and so forth, quite superfluous.
04-368 +++$+++ 22313 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It absolutely would, Your Honor, because it would basically cover any kind of request. But, in addition, they say that under their definition what it really means is that if you did it for some other motive, if you got them to destroy the document so that it couldn't be used in an official proceeding -- and that was your intent, that it couldn't be used in an official proceeding -- and you bribed them to do it, but your motive was to avoid embarrassment, it would not be a crime. Under Andersen's interpretation, it would still be a crime, because of course you have corruptly persuaded them to destroy a document for use in an official proceeding, even if -- at the appropriate time, if there is a nexus -- because it doesn't matter whether you were trying to avoid embarrassment; if you were bribing them to keep it out of the -- of the proceeding, of course that would be covered by the traditional definition of "corruptly persuade."
04-368 +++$+++ 22314 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose you're anticipating a revenue audit from the Internal Revenue Service or from the SEC, and you destroy certain documents that you're not required to keep, but that would make the officials' task easier; he you could perform the audit in just a couple of days, instead of -- it's going to take him a week. Can you make it harder for him?
04-368 +++$+++ 22315 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, under Section 1519, now, it may well be that that is criminal behavior, because it -- Congress has now, basically, required you to preserve documents. But, at the time, no, that would not have been a crime. And if you could do it yourself, then asking your wife to throw them out instead can't be what Congress really had in mind under Section 1512. You know, hypothetical, the man could throw it out himself and not go to jail, but if he asked his wife to do it, then he goes to jail for ten years.
04-368 +++$+++ 22316 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There is, in the case, this lingering feeling that something's wrong out there. I know that we don't -- we don't convict people on that basis; we require something more specific.
04-368 +++$+++ 22317 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, and I think that this statute, reasonably read, Your Honor, tells you exactly what that specific thing is. If you intimidate them, if you mislead them, if you use physical force, if you corruptly persuade them. And that means either you've used unlawful means, like bribery, or you asked them to violate their independent legal duties. And that definition, Your Honor, is quite consistent with the traditional interpretation of the term "corruptly," even in the obstruction statutes. And I'd like to just emphasize, for instance, in a tampering case, a juror tampering case that preceded the congressional adoption of the term "corruptly persuades," the Jackson case, the jury was specifically instructed that "corruptly" means "knowingly and willfully, with the specific intent to influence a juror to violate his duties as a petit juror." Similarly, in Aguilar, in the District Court, the jury was instructed -- that was a tampering case -- quote, "an act is done corruptly if it is done voluntarily and intentionally to bring about either an unlawful result or a lawful result by some unlawful method," end quote. This is exactly parallel to the interpretation that Andersen is asking this Court to adopt. And if that if that interpretation is adopted, it makes sense of this statute. If this statute isn't read in reference to the violation of other legal duties, than it covers a whole range of conduct that is unquestionably innocent --
04-368 +++$+++ 22318 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose I just don't like the IRS, and I know they're coming. I have some very detailed summaries which will give them the answer they need right away. I throw away those summaries and make them go back to the original records just to make it tough for them. Can I do that?
04-368 +++$+++ 22319 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Section 1519, I don't think you can. Could you have done that in the -- in the fall of 2001? Yes, Your Honor, you could. What that really reflects is the Pettibone rule. The Pettibone rule, for a hundred years, was that destruction and other kinds of acts of potential obstruction in advance of a proceeding were not a crime.
04-368 +++$+++ 22320 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Mahoney, we -- you know, we all know that what are euphemistically termed "record-retention programs" are, in fact, record-destruction programs, and that one of the purposes of the destruction is to eliminate from the files information that private individuals can use for lawsuits and that Government investigators can use for investigations. And there has been nothing unlawful about having such a program, even if one of your purposes is not to leave lying around in the file stuff that can be used against you by either the government or a private individual. So, I would have thought that your argument was very persuasive, except for the fact of 1519. I think that 1519 gives me cause to believe that Congress could, indeed, say, "You can't have record-retention programs." How else do you interpret 1519?
04-368 +++$+++ 22321 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they certainly hadn't said it in the fall of 2001, Your Honor. And so, for that reason --
04-368 +++$+++ 22322 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but I -- well, yeah, but--
04-368 +++$+++ 22323 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
04-368 +++$+++ 22324 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- but your argument is, you know, "It's inconceivable that they would have meant that." But, my -- they said it in 1519 --
04-368 +++$+++ 22325 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-368 +++$+++ 22326 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- -- in 2002.
04-368 +++$+++ 22327 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- let me put it this way. If they're gonna -- if they're going to say it, though, they have to say it with very clear language, because, otherwise, there would be no fair warning. You couldn't conclude from the language of the witness-tampering statute, which is designed to protect witnesses, that Congress had made all record-retention programs unlawful. I also think, Your Honor, that when it comes time to construe Section 1519, some kind of nexus will have to be, you know, reasonably read in there, because, otherwise, you are correct, all document retention policies, or virtually all of them, are fatally doomed.
04-368 +++$+++ 22328 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what is a "document"? I mean, in Justice Kennedy's example, is it just some handwritten notes? Do they become "documents"?
04-368 +++$+++ 22329 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Your Honor. And, in this case, the evidence was quite clear that, you know, Andersen retained its work papers, and the work papers were extremely extensive, and they were required to fully document the audit. The only things that were thrown away were notes and preliminary drafts, which had already been incorporated, in effect, into the final conclusions in the work papers; and yet that was the whole theory of this case, is that there were some documents that were destroyed. They were precisely the kinds of documents that document-retention policies are designed to eliminate, in part -- for a variety of reasons, but, in part, because they are preliminary in character and they can be misconstrued. For instance, Your Honor, the FBI agents, generally speaking, have the practice of not keeping their notes of interviews. They take those notes, they make a file memorandum, they throw away the notes. Why do they do that? Of course they know the defendant would love to have those notes when it comes time for a trial. They do it because they feel that they have written it up in an accurate way, and enough's enough. That's what we're talking about here, Your Honor. And there was nothing in the language of 1512 that would have put Andersen on notice that its document-retention policy was -- well, in fact, the Government doesn't say its document retention was a crime; it says it wasn't a crime. Instead, the crime was when David Duncan asked his secretary to throw away documents that he could have thrown away, lawfully, himself. This statute does not give fair warning that that --
04-368 +++$+++ 22330 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was Section 1519 at issue?
04-368 +++$+++ 22331 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. Section 1519 did not get passed until the year 2002. It did not exist. Instead, the rule that was in force then was the Pettibone rule, the one that's reflected in the text of Section 1505; and that is, "the proceeding must be pending." That's, no doubt, why the Government didn't charge Andersen with a crime under Section 1505. I mean, they make it sound like the culpability here is the destruction of records. Well, if so, then you would think that they would have charged Andersen with destroying documents --
04-368 +++$+++ 22332 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wait a minute --
04-368 +++$+++ 22333 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but they didn't.
04-368 +++$+++ 22334 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- wasn't there another provision in effect that said it doesn't matter whether the -- whether the proceeding is pending? I forget which one it is.
04-368 +++$+++ 22335 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that -- no, that's just 15 -- that's 1512, for witness tampering. But for the act of destroying documents to interfere with a proceeding --
04-368 +++$+++ 22336 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
04-368 +++$+++ 22337 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's Section 1505, and the proceeding must be pending. And that is -- that is still the rule today, Your Honor.
04-368 +++$+++ 22338 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I -- just to make it clear, I take it you would still have the same objection to the deficiency of the corruption instruction, even if a proceeding were pending, or am I wrong about that?
04-368 +++$+++ 22339 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if a proceeding is -- yes, we would, in this case. Yes, absolutely. But, you know, if a proceeding is pending, then it changed the -- changes the way that you apply the definition of "corruptly." But you're certainly right that the definition is the same. The question is, under the proper definition of "corruptly," did you induce the witnesses to engage in this activity through improper means, such as bribery, or did you try to get them to violate their independent legal duties? For instance, if they had duties, under Section 1519, not to destroy, then it makes perfect sense, because what you have done is, you have asked the witness to engage in conduct which violates the law, and that corrupts them, it harms them, it fits with the purposes of the statute, it fits with the structure.
04-368 +++$+++ 22340 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, it was proper, then, for Michael Odom to tell the Andersen personnel when he's encouraging them to follow the policy -- he said, "If it's destroyed in the course of normal policy and litigation, and litigation is filed the next day, that's great. We followed our policy, and whatever there was that might have been of interest to somebody, it's gone and irretrievable."
04-368 +++$+++ 22341 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-368 +++$+++ 22342 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's fine for him to make that linkage between, "Destroy it. Maybe there's going to be litigation filed tomorrow." "That's great. It will be gone"?
04-368 +++$+++ 22343 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, at the time that he made that statement, what that statement actually reflects is the Pettibone rule. He was accurate in his -- in his statement about what the law was governing document destruction at the time. That's a good-faith reasonable belief that was absolutely supported by the law. But, more importantly, Your Honor, if we look at Mr. Odom's remarks, he wasn't working -- he wasn't -- this wasn't in connection with the Enron engagement; there were only, I think, ten people, out of, like, 80, at that training seminar that had anything to do with Enron. He was talking about the firm's document-retention policy. The jury asked to see that videotape. They may have actually convicted Andersen based upon his remarks about the document-retention policy. They, similarly, may have convicted Andersen based upon Nancy Temple's memos that -- one of which was a reminder to the engagement team that they were supposed to applying -- complying with the document-retention policy. That's legal services. This --
04-368 +++$+++ 22344 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Odom wasn't saying this in the abstract. There were other proceedings, weren't there?
04-368 +++$+++ 22345 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, it was just a training session that was just a -- a section of the training session. It has -- literally, I think there were 89 attendees, only about ten of them --
04-368 +++$+++ 22346 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ At the time of that training, were there not other proceedings involving Arthur Andersen?
04-368 +++$+++ 22347 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. No, I don't believe so. That's --
04-368 +++$+++ 22348 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There were, involving Enron, at that point, isn't that correct? The -- Enron had gotten the letter?
04-368 +++$+++ 22349 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. That was on October the 10th. The letter did not come until October the 17th. Andersen learned about it on October the 19th. I'd like to save the remainder of my time for rebuttal, please.
04-368 +++$+++ 22350 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Very well, Ms. Mahoney. Mr. Dreeben, we'll hear from you.
04-368 +++$+++ 22352 +++$+++ FALSE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Arthur Andersen's conduct in this case explains why Congress enacted a statute like Section 1512 that protects against the anticipatory destruction of documents when a proceeding is --
04-368 +++$+++ 22353 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, Section 1519, enacted subsequently, comes closer to the mark, doesn't it, than 1512?
04-368 +++$+++ 22354 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice O'Connor, Section 1519 was enacted after the events --
04-368 +++$+++ 22355 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
04-368 +++$+++ 22356 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in this case in order to plug the loophole that Arthur Andersen has pointed out existed in Section 1512 at the time.
04-368 +++$+++ 22357 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you think it's superfluous. 1519, if you win this case, really is just an exercise in futility, because the law already did what 1519 said.
04-368 +++$+++ 22358 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. The law did not already do what 1519 says.
04-368 +++$+++ 22359 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wherein does it go further?
04-368 +++$+++ 22360 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It reaches single-actor obstructive conduct. What Ms. Mahoney has said --
04-368 +++$+++ 22361 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what about the Pettibone interpretation that has been outstanding for a long time?
04-368 +++$+++ 22362 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Pettibone applied, Justice O'Connor, to a specific statute, Section 1503, and it's similarly incorporated in 1505. Those statutes protected against obstruction of pending judicial, administrative, and congressional proceedings. The innovation in Section 1512 was to reach beyond the existence of a pending proceeding and to ensure that basically the store doesn't get robbed before the proceeding starts. If Arthur Andersen is correct, the anticipation of a grand jury investigation that is thought to occur the next day, a corporation can send out a directive to its employees and say, "Shred all the smoking guns." It's the corporate equivalent of seeing something that looks like a crime scene and sending somebody in before the police can get the yellow tape up to wipe down the fingerprints.
04-368 +++$+++ 22363 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When can they do it? When can they do it? You didn't allege here that it was in anticipation of any particular proceeding. You say they can't do it once they know that the investigation is on the way. But your theory in this case is that they can't do it, whether they know the investigation is on the way or not. They can't destroy any evidence that might be the subject of an investigation.
04-368 +++$+++ 22364 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, that's not our theory --
04-368 +++$+++ 22365 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is your theory?
04-368 +++$+++ 22366 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our theory is that a person acts corruptly when anticipating a reasonable possibility of an investigation into a specific matter, directs another person to destroy documents that are potentially relevant.
04-368 +++$+++ 22367 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ "A reasonable possibility of an investigation."
04-368 +++$+++ 22368 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
04-368 +++$+++ 22369 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you want criminal liability to turn upon that.
04-368 +++$+++ 22370 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that --
04-368 +++$+++ 22371 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Whether or not there is a reasonable possibility of an investigation. You want somebody to go to jail on how a jury decides that question.
04-368 +++$+++ 22372 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think there's anything unusual about the decision of that kind of question at all. It's a analogous, but different and quite distinguishable nexus requirement from the kind of nexus requirement that this Court interpreted Section 1503 to have in the --
04-368 +++$+++ 22373 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose I have a company and I know that the pattern is, I'm going to be audited every five years by the IRS. And in year four, I -- one year -- one year before the investigation, I instruct my bookkeeping staff, "Keep everything you need to document our expenses, but destroy everything that's remotely related to that, or indirectly related to that. Give them just a clean, simple file. Destroy anything that's -- all supporting documentation. Give them what they need and what they're entitled to have, but nothing else. And step up that policy, because they're going to be here next year." Under your -- it seems to me that that violates your rule.
04-368 +++$+++ 22374 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, it turns on whether the intent there is to subvert, undermine, or impede the proceeding. And the answer is, if it is yes, then it would be prohibited by this statute.
04-368 +++$+++ 22375 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it would be prohibited to tell somebody to do it.
04-368 +++$+++ 22376 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
04-368 +++$+++ 22377 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you could do it. The doing of it is perfectly okay.
04-368 +++$+++ 22378 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was a --
04-368 +++$+++ 22379 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Doesn't that seem strange to you?
04-368 +++$+++ 22380 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It seemed strange to Congress, too. And when this case threw a spotlight on that omission in the statute, Congress didn't react --
04-368 +++$+++ 22381 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I would suggest that it throws a spotlight on the fact that your theory is wrong. It doesn't -- [Laughter.]
04-368 +++$+++ 22382 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- it doesn't make -- it doesn't make any sense to make unlawful the asking of somebody to do something which is, itself, not unlawful, so that the person could do it, but if you asked them to do it, you're guilty, he's not guilty. And that's -- that is weird. [Laughter.]
04-368 +++$+++ 22383 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What was weird about it, Justice Scalia, is that it allowed the person to do it himself. And when Congress --
04-368 +++$+++ 22384 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let me ask you about this precise thing. Is it Mr. Duncan? If he had, himself, shredded the documents, or destroyed them, that was perfectly okay at the time it was done.
04-368 +++$+++ 22385 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It wasn't --
04-368 +++$+++ 22386 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that right?
04-368 +++$+++ 22387 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- prohibited by this statute. And when --
04-368 +++$+++ 22388 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It would not have been a violation.
04-368 +++$+++ 22389 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
04-368 +++$+++ 22390 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the Government got the conviction, got him to plead guilty, apparently, on the basis that if he asked somebody else to do what was perfectly lawful for him to do, it would violate the statute.
04-368 +++$+++ 22391 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Justice O'Connor.
04-368 +++$+++ 22392 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what -- how do you read that in coordination with the so-called safe-harbor provision for legal advice and so on?
04-368 +++$+++ 22393 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that the safe-harbor provision substantially bears on this case at all. First of all, Arthur Andersen never raised the safe-harbor provision, so that the Government would --
04-368 +++$+++ 22394 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the woman lawyer never raised it, is that right?
04-368 +++$+++ 22395 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Nancy Temple was not a defendant in this case, but her conduct was at issue, because, after having immediately recognized that an SEC investigation was highly probable, Nancy Temple sends out a document reminder saying --
04-368 +++$+++ 22396 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
04-368 +++$+++ 22397 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- basically, "purge the files."
04-368 +++$+++ 22398 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But under this statute, with the safe-harbor provision in it, is it unlawful for her, as a lawyer, to say, "You can destroy these documents"?
04-368 +++$+++ 22399 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, it is, in this case, if her intent was to subvert, undermine, or impede the --
04-368 +++$+++ 22400 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But your definition of "subvert, undermine" is, if you destroy any document that might raise a question, say, in the IRS audit. It seems to me that is a sweeping position, which will cause problems for every major corporation or small business in this country. I just -- I just don't understand it.
04-368 +++$+++ 22401 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so, Justice Kennedy, because the Government's position here has never been that the mere existence of a document-destruction policy used under routine circumstances is a violation of the statute. What the Government focused on in this case was using a document-destruction policy as a pretext and a cover to clean up and purge files when a government investigation was anticipated and it was perceived that these materials would be relevant.
04-368 +++$+++ 22402 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's like in -- the old -- the rule in the Army, "Make two copies of everything you throw out." I mean, that's what they're going to have to do. [Laughter.]
04-368 +++$+++ 22403 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think --
04-368 +++$+++ 22404 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You used words --
04-368 +++$+++ 22405 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under this statute, Justice Kennedy, that's not the issue. I think the timeline here is critical. This was not a company that was routinely exercising a document-destruction policy, or document-retention policy, to maintain only that which was necessary for its ongoing business.
04-368 +++$+++ 22406 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, it was. The training session that you introduced in evidence was precisely that, a general training session for all employees, saying, "This is our document," quote, "retention policy."
04-368 +++$+++ 22407 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but that was triggered, in part, by Nancy Temple's recognition -- in the midst of serving on a crisis response team, recognizing that Enron was in the process of imploding, Arthur Andersen, which was basically on probation with the SEC -- because it had been previously sanctioned, twice, during the prior summer, and was under a cease and desist order -- and seeing the SEC coming down the pike, at that moment, she decides to remind the Enron team, which had not been at all compliant with this document-retention policy, "It's time to get the files in line." This wasn't because all of a sudden the company had become preoccupied with neatness; it was so that it could document, in its audit work papers, those things that supported its conclusions. That's what its document policy said.
04-368 +++$+++ 22408 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He says that occurred before Enron had even gotten a letter.
04-368 +++$+++ 22409 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But not --
04-368 +++$+++ 22410 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That meeting.
04-368 +++$+++ 22411 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- not before Enron's problems had begun to become -- surfacing in the Wall Street Journal, in the financial press, the stock price was sliding. Everybody who was sophisticated in this environment -- and surely Arthur Andersen was -- knew that when a Fortune 500 company is looking at a potential need to restate its income statements because the accountants have been -- proved a black-and-white violation of GAAP, and they all knew that that was true, that SEC proceedings are likely to occur. Even the witness --
04-368 +++$+++ 22412 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you -- if you had alleged that they did this in order to cover up a fraud, there would be no problem. But what you're doing is to say it's illegal to do what every other company in the country can do if they don't have an audit immediately on the horizon. I just don't understand it.
04-368 +++$+++ 22413 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No other company in the country would do this, Justice Kennedy. This is an extraordinary case precisely because --
04-368 +++$+++ 22414 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You say that it would be perfectly okay for this company, or any other one, to destroy their documents. What's bad is telling somebody to destroy the documents.
04-368 +++$+++ 22415 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But in an organizational context, that's the only way that directives like this can be given out and implemented. This wasn't a case of --
04-368 +++$+++ 22416 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I know you know that the -- you've put your finger on a problem for me. You have said, Would it be the case that a person, before the proceeding begins, could simply tell somebody else to destroy the smoking gun? I understand that you fear that Andersen's approach would lead to that result. And it's bothering me. Therefore, I'd like you whether the word "corruptly" could include a person who knows three things:one, that the investigation, which has not yet started, almost certainly will want this document; two, there is no legal right to withhold it; and, three, that if I tell him to do it, it will be destroyed -- I mean, that it's important to the investigation. Important to the investigation, they want it, it's cover-up, and they will, in fact, have no legal right to take it back. Now, would that be "corrupt"?
04-368 +++$+++ 22417 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, it would --
04-368 +++$+++ 22418 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-368 +++$+++ 22419 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- be "corrupt."
04-368 +++$+++ 22420 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. IF that's "corrupt," then does that cover this case?
04-368 +++$+++ 22421 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that it does cover this case, and --
04-368 +++$+++ 22422 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How? Because it seems to me there was quite a lot of -- by the way, the person who's doing the persuading has to know this. They have to know that it will be wanted, that it's important, and there is no legal right to withhold it. So it seems to me that, on the one hand, that does cover your problem, and, on the other hand, it does not cover this case. Now, that's what I'd like you to reply to.
04-368 +++$+++ 22423 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Breyer, I think that the facts of the case are subsumed within the description that you've given. The jury instructions did not require findings on all of those features; and that is, in large part, because of the kinds of instructions that Arthur Andersen --
04-368 +++$+++ 22424 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. The jury instruction left out the word "corruptly," as far as I can see, in the part that was critical. They define "corruptly" as simply an intent to impede. And the word "impede" goes well beyond what I've said, both because it does not cover the three things, but, most particularly, because it does not say that it was dishonest or that the person who did the persuading knew that the jury or the grand jury or the investigation would have the legal right to get the material and there was no right to withhold it. The words that Arthur Andersen suggested, while they don't say precisely that, were at least a step in the right direction.
04-368 +++$+++ 22425 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The jury instruction said less than what you have suggested, Justice Breyer, no question about it, but what they did require was that there be an intent to undermine, subvert, or impede the investigation. I think --
04-368 +++$+++ 22426 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wasn't -- wasn't that instruction, itself, undermined by what I understand to be the instruction that good-faith belief in the legality of what was being done was no defense? I mean, if you had an instruction that depended upon the word "subvert," I could -- I could understand your argument. But it seems to me that the difficulty with your argument, and the difficulty with your answer to Justice Breyer, is that it went beyond "subvert" to merely "impede," and it included an instruction that good faith was no defense.
04-368 +++$+++ 22427 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, this is to statute, and the word "corruptly" is not a word, that has been ever construed to require consciousness of illegality. That is a --
04-368 +++$+++ 22428 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How about "knowingly"?
04-368 +++$+++ 22429 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, the word "knowingly."
04-368 +++$+++ 22430 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How about "knowingly"? Does that -- does that usually connote knowledge of the illegality?
04-368 +++$+++ 22431 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Definitely not. The word "knowingly" usually connotes knowledge of the underlying facts. And, in this case --
04-368 +++$+++ 22432 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ "Knowingly corruptly."
04-368 +++$+++ 22433 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The word "knowingly" does not travel down the statute to modify "corruptly." It --
04-368 +++$+++ 22434 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't see why it doesn't. I mean, there's no grammatical break.
04-368 +++$+++ 22435 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there is a logical break, because if it travel down the statute and reach all the way to "misleading conduct," what Congress would have written is a statute, when you read the definition of "misleading conduct," that says, "whoever knowingly knowingly makes a false statement," because the definition of misleading conduct includes "knowingly making false statements," "knowingly omitting things," "intentionally engaging in deceptive behavior." And you'd end up with a -- in a redundancy that makes no sense whatsoever. It makes sense for Congress to have said, "knowingly used force or intimidation." But then when you get to the word "threat," there is inherent knowledge in it. "Corruptly" inherently embodies knowledge. And the definition of "misleading conduct" inherently --
04-368 +++$+++ 22436 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's certainly --
04-368 +++$+++ 22437 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- embodies knowledge.
04-368 +++$+++ 22438 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, I will -- I will grant you that the definition that the Government asked for, and got, for "corruptly persuades," does have that implication, so far as the "subvert" prong is concerned. But when you get beyond the "subvert" prong, and you get down to the third one, "merely to impede," you're getting pretty thin, so far as the -- as the implication of knowledge of wrongdoing is concerned, and you've still go the problem of the instruction that negated good faith is a defense.
04-368 +++$+++ 22439 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me try to address each of those. First of all, the words were used as a definition of "improper purpose," and they were used together, "subvert, undermine, or impede," and they logically have a relationship to each other. When the Court of Appeals looked at those words and defined them, which it did, it talked about subversion and undermining as being a ruining of the proceedings and an overthrow of the attempt that the Government was anticipated to make. And I think, "impede" has to be read logically in that group. Now, I will acknowledge that "impeding" can have broader connotations, but it's not a word that's is foreign to the obstruction --
04-368 +++$+++ 22440 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why did -- if that is so, why did you need it? In other words, you had a -- you had a pattern instruction, apparently, that was -- that was keyed to "subversion," which I think would be an easy argument for you. If the addition of "impede" really wasn't adding that much, why did you ask the Court to put it in there?
04-368 +++$+++ 22441 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Here is what it adds, Justice Souter. "Undermine" and "subvert" have a connotation of completely preventing the performance of the official duty in the proceeding. "Impede" removes any implication that you need to totally thwart the government activity in order to be guilty of this crime. It's enough to "interfere" with it, which is the word that the Court of Appeals used to define it.
04-368 +++$+++ 22442 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you could undermine and be unsuccessful. It's not as though undermine means that you're necessarily going to succeed.
04-368 +++$+++ 22443 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but it was to avoid any connotation that the jurors might put on the linkage of those words that the Government sought the use of the word "impede." And I should note that it appears, in Section 1503, Section 1505 --
04-368 +++$+++ 22444 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But not in 1512.
04-368 +++$+++ 22445 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. That's correct. But what --
04-368 +++$+++ 22446 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's not there.
04-368 +++$+++ 22447 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- what the Government was doing in this instance was attempting to give content to the word "corruptly" that would enable the jurors to know that they can convict if the purpose that the defendant had in dusting off this document policy and using it as a pretext to destroy documents was to interfere with the fact-finding ability of an anticipated proceeding.
04-368 +++$+++ 22448 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but it sounds like -- actually, I'll grant you that it appears in the statute, but that's, in a sense, my problem. The statute talks about "corruptly persuading another person to destroy a paper with the intent to impair that paper's availability for use in an official proceeding." So, then we look at the instruction, and the instruction speaks of "destroying the paper with the intent, at least in part, to impede." Fine. It sounds like it's just the same as the statute, but for one thing, the omission in the instruction of the word "corruptly."
04-368 +++$+++ 22449 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, it's a definition of "corruptly" that --
04-368 +++$+++ 22450 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. So to define "corruptly" as "doing the same thing that the rest of the statute does" seems a little strange. If I were a juror, I might think that there is missing here any dishonesty of purpose.
04-368 +++$+++ 22451 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Court of Appeals addressed the argument, which Petitioner makes, that the definition of "corruptly" that was used in this case is redundant and superfluous in light of the additional intent that --
04-368 +++$+++ 22452 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's not perfectly redundant. One can imagine driving a wedge between making something unavailable, which the jury would find relevant, or the investigator would find relevant, and impeding the fact-finding ability of the investigator. They're not logically identical, but they do strike me as so similar that it's hard to expect a juror to make much of a difference between those two phrases.
04-368 +++$+++ 22453 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that they have a very significant difference, an important function in ensuring that this statute is not applied beyond the scope of protection of the integrity of proceedings, which is what Congress intended it to do.
04-368 +++$+++ 22454 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Dreeben, would you indulge me to go back to a previous answer you gave? I'm sorry, I didn't quite get it. In responding to Justice Souter's inquiry concerning the word "knowingly," you said the word "knowingly" appears later, so that it would be -- it would be reduplicative. What later appearance are you talking about, in 1512(b)?
04-368 +++$+++ 22455 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, on page 5(a) -- or, I'm sorry, on page 3(a) --
04-368 +++$+++ 22456 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ 3(a), right.
04-368 +++$+++ 22457 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of the Government's appendix --
04-368 +++$+++ 22458 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
04-368 +++$+++ 22459 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to its brief, at the bottom of the page, subsection (b) --
04-368 +++$+++ 22460 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
04-368 +++$+++ 22461 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- appears, "Whoever knowingly uses intimidation or physical force" --
04-368 +++$+++ 22462 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
04-368 +++$+++ 22463 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- et cetera.
04-368 +++$+++ 22464 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
04-368 +++$+++ 22465 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The last phrase in the sequence is "engages in misleading conduct towards another person." That phrase is, in turn, defined in the statute on page 11(a) and 12(a) of the same appendix, the Government's appendix. It's Section 1515(a)(3). And it says the term "misleading conduct" means "knowingly making a false statement; intentionally omitting information from a statement; with intent to mislead, knowingly submitting or inviting reliance on a writing; or, with intent to mislead, knowingly submitting or inviting reliance on a sample;" and, finally, "knowingly using a trick scheme or device." So, "knowingly" is to be read in as if it were part of Section 1512 when it comes to defining the term "engaging in misleading conduct," so you would end up with a statute that Congress have, for some reason, drafted that includes the word "knowingly" at the beginning, and then "knowingly" later as the definition of one of the terms that the initial "knowingly" --
04-368 +++$+++ 22466 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I don't know how you can avoid that.
04-368 +++$+++ 22467 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You avoid it --
04-368 +++$+++ 22468 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ "Whoever knowingly engages in misleading conduct," which is later defined as --
04-368 +++$+++ 22469 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. It's, "Whoever knowingly uses intimidation or physical force." That's what "knowingly" applies to. And then the words "threaten, corruptly persuade, and engages in misleading conduct," have inherent knowledge in them. In other words --
04-368 +++$+++ 22470 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, I see. The "knowingly" only applies to "uses intimidation or physical force."
04-368 +++$+++ 22471 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, because "corruptly" is, and always has been, a scienter term, and its appearance in Section 1512 is a direct lineal descendant from the fact that that word appears in Section 1503. When Congress enacted this statute, it had every reason to believe, because it intended to do this, that the definition of "corruptly," that had been fairly widespread in the use of the word in Section 1503, would be applied to 1512.
04-368 +++$+++ 22472 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why --
04-368 +++$+++ 22473 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And, in that context --
04-368 +++$+++ 22474 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- why isn't the answer to your argument that the requirement in (b) -- "knowingly" requirement in (b) doesn't travel all the way down through the series, but it travels at least as far as "corruptly persuades"?
04-368 +++$+++ 22475 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's sort of reading the statute just to achieve a result.
04-368 +++$+++ 22476 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but we know it --
04-368 +++$+++ 22477 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it's contrary to --
04-368 +++$+++ 22478 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- applies to something at the beginning of the series. It's got -- it's got some work to do. You've made an argument that it doesn't apply, or it would be logically absurd to apply it, to something at the end of the series, and we're somewhere in the middle. And why isn't the answer to your argument simply to say, "Okay, it doesn't travel all the way to the end, but it travels up to the end, and it travels as far as this"?
04-368 +++$+++ 22479 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because a "threat," itself, which is the third term in the series, and the one that precedes the term that's at issue here, also involves an element of scienter or knowledge. You can use intimidation inadvertently. You could be a very heavy, dangerous-looking guy, standing out in front of the grand jury room, and a witness might come along and see you and realize, to himself, "Uh-oh, I'm in trouble if I testify." If you haven't done that knowingly --
04-368 +++$+++ 22480 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So that big, heavy guy would violate the statute just by standing there?
04-368 +++$+++ 22481 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He wouldn't, Chief Justice Rehnquist, precisely because it requires that he knowingly use intimidation. So that --
04-368 +++$+++ 22482 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't think you can -- you can use intimidation unknowingly, any more than you can threaten unknowingly. If they felt it necessary to put "knowingly" before "use intimidation," I think they would have felt it necessary to put "knowingly" before "threaten." The two terms are just about identical.
04-368 +++$+++ 22483 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that they're actually quite different in the context of this statute, but even if the Court were to conclude that "knowingly" did travel down and produce a phrase, "knowingly corruptly," the word "knowingly" generally in the criminal law refers to "knowledge of the facts that make your conduct unlawful." Arthur Andersen here is asking for a very --
04-368 +++$+++ 22484 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, the -- in general terms, when you speak of "general interpretation," I suppose I think it possible to approach ambiguous criminal statutes with the following idea. Congress did not intend to try to make of the statute a highly general weapon for the Justice Department to pick and choose. That's a notification problem. It's also because we don't want one law, "It is a crime to do wrong, in the opinion of the Attorney General." You know, I mean, we want to have narrow criminal statutes. Now, is it reasonable to start with that frame of mind? And if it is, doesn't that tend to cut against you in this case?
04-368 +++$+++ 22485 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that it does, Justice Breyer. There are, of course, contexts where the Court concludes that a statute, after applying all the tools of statutory construction, is ambiguous, and then rules of construction do apply to narrow it; but there is no provision that says that the Court should approach the question of construction with a view to narrow it. I think --
04-368 +++$+++ 22486 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, how about the rule of lenity in the criminal statutes? If this thing is so confusing, how's the business person supposed to know what they can do? How's the lawyer supposed to know?
04-368 +++$+++ 22487 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that it is that confusing, Justice O'Connor. This is a statute that was enacted against the backdrop of Section 1503 in a well-understood meaning of the word "corruptly." The same word appears in Section 1505. When the D.C. Circuit concluded that that provision was vague, as applied to a particular case, Congress came back with a definition that legislatively overruled the D.C. Circuit decision and said "corruptly" means "acting with an improper purpose." The "improper purpose" in an obstruction-of-justice case has traditionally been "the purpose to obstruct justice." That definition logically applies to Section 1512, because Congress enacted the corruptly-persuades provision to remedy a deficiency in prior law, because it had not included non-coercive, non-deceptive witness-tampering in the statute, originally. And some courts concluded that it was no longer punishable under Section 1503, either. To fix that situation, Congress looked to the model of Section 1503 case law, where there had been a variety of acts that are covered that under Petitioner's test would not be, such as secreting a witness, or sequestering a witness, in anticipation of a subpoena so that the witness would be unavailable to testify, or destroying documents before a subpoena had been issued, but in an anticipation that the subpoena was likely. Those kinds of acts were considered to be unlawful. Similarly, giving advice, even as a lawyer, to an individual to assert the Fifth Amendment in bad faith, not to protect that individual's own interest, but to obstruct justice by protecting other members of a criminal organization, or, indeed, the lawyer himself, lower courts had recognized could be prosecuted; not uniformly had recognized, but they had uniformly recognized it at the time of the enactment of this statute. And Congress specifically said, "We want 1512 to be able to pick up the kinds of cases that some courts have said are no longer prosecutable under Section 1503, and that had not been included in the original version of 1512." So that there is history here that explains how these terms should be applied. And as far as Petitioner's contention that the word "corruptly" does nothing and leads to a series of horrible hypotheticals, actually a sensitive and appropriate use of the word "corruptly" solves those problems. Petitioners talk about how people should be able to urge each other not to cooperate with a voluntary investigation, that it's part of citizenship to be able to engage in those conversations. But if an entity has subpoena authority and it doesn't invoke it, and it simply invites people voluntarily to cooperate, it is not going to be an intent to subvert, undermine, or impede that proceeding to invite them to exercise that right. If the agency wants their testimony, it can get it through compulsion. Similarly, Petitioners argue that document policies are, per se, made unlawful under the Government's approach. But as the Court of Appeals specifically recognized in this case, a sound application of the word "corruptly" would look to whether there is a threat of some kind of specific proceeding that might trigger an obligation not to destroy the documents before the proceeding gets started. And, as well, there are intents that are simply not intents to subvert the administration of justice, that may result in rendering certain evidence unavailable. And if a person engages in that conduct, it may well violate another provision of criminal law, but it doesn't have to violate 1512. And a sound use of "corruptly" prevents all of those hypotheticals from materializing and leading to the conclusion that the statute is unduly broad. Now, Petitioner in this case, in addition to attacking the word "corruptly," also has advanced a number of arguments that there was inadequate instruction on some connection that had to be required between the Defendant's intent in a possible future proceeding. But the reason that there was no adequate instruction on those issues is largely because Petitioner, itself, deliberately decided to ask for two instructions that were contrary to the statute, and never asked for what it's asked this Court to impose today. It never asked that the Defendant must be shown to believe that some particular proceeding was likely to occur in the near future. Instead, what it did is say that the Defendant had to have an intent to impair an object's availability for use in a particular proceeding. And what the Court of Appeals said is that if there was any problem in that, it's not reversible error;it's harmless, because everybody knew that the proceeding that was anticipated was an SEC investigation of Enron. And the other instruction that Petitioners asked for in the District Court is that the official proceeding must be ongoing or scheduled to be commenced in the future. But that instruction is flatly contrary to the statute.
04-368 +++$+++ 22488 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Dreeben. Ms. Mahoney, you have four minutes remaining.
04-368 +++$+++ 22490 +++$+++ FALSE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. I'd like to first address the fact that much of the Government's argument is focused on this nexus, the imminence of the proceeding, that sort of thing, but actually the jury was not required to find any nexus whatsoever, and was told the wrong definition of an "official proceeding," to boot. It was told that the informal inquiry by the SEC staff was an official proceeding, and that an official proceeding was already going on at the time of the events at issue here; in fact, even before Nancy Temple even knew about that informal inquiry, which, in and of itself, is reversible error. And --
04-368 +++$+++ 22491 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What do you think it should have been?
04-368 +++$+++ 22492 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The "official proceeding," at worst, Your Honor, it was the formal investigation of the SEC, which is commenced by a vote of the Commission and has compulsory process available. It is certainly not a staff person sitting in their office in Houston opening a file and doing some Internet searches. That's the Government's definition. That's in -- a matter within the jurisdiction of an agency, and that's not the language that appears in this statute. Also, in terms of whether Andersen raised this argument, of course they did. They asked for an instruction that the proceeding be ongoing or scheduled, because that was Fifth Circuit law at the time. Andersen wasn't supposed to guess that the Fifth Circuit was going to change what it had held in case called Shively. And the Fifth Circuit understood that Andersen had preserved the argument, and expressly says in its opinion that the issue is, What is the concreteness of the Defendant's expectation of a proceeding that should be required under this statute? -- and found that "feared" was enough. That's not enough. "Possible" is not enough, especially if a broad definition, like the one the Government wants to have -- there's got to be a serious nexus. Nexus problems can be avoided, though, if the more traditional definition of "corruptly" is used in the first place, which is not only required by lenity, but, frankly, is required even by the witness-tampering cases under Section 1503. As I read to you, the definitions of "corruptly" are completely consistent with Andersen's definition. The Government says, "Oh, no. In fact, all it meant under 1503 was an intent to obstruct justice." That can't possibly be what Congress intended for Section 1512, because this Court had held, for -- a hundred years ago, that you necessarily lack the evil intent to obstruct if a proceeding is not pending. And 1512 does apply even before proceedings begin, so the definition had to be tailored to the precise circumstances of Section 1512. It couldn't import the precise thing. Plus, the definition under 1503 has never been any intent to impede the fact-finding ability is a prohibited intent. That would require lawyers and clients all over the country to go to jail. It's that you intend to subvert and undermine the integrity of the due administration of justice. And that term does not mean simply to impede the fact-finding; it means that you intend to disobey those duties that are imposed upon you in the course of a proceeding. And cases, including the Howard case cited in our brief and cited by the Government, make that crystal clear. It is not translated to what this jury instruction was, which is that -- any intent to impede fact-finding. Just take a look at the examples, if the Government were correct about this. If I were to ask my lawyer to assert, let's say, a reporter's privilege that is debatable, under the Government's -- and I do it, because I know that that document is harmful, and I want to keep it out of the proceeding -- under the Government's definition, that is corrupt, because I am trying to get another person to withhold a document in order to impede the fact-finding ability of the decision-maker. It makes no sense to define "corruptly" that way. If you, instead, define it with reference to duties, it makes perfect sense. That's not corrupt, because there is no duty to provide a document when you have a good-faith claim of privilege. Thank you, Your Honor.
04-368 +++$+++ 22493 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Ms. Mahoney. The case is submitted.
04-37 +++$+++ 22498 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll now hear argument in Clingman against Beaver. Mr. Poe, as soon as you're ready, we'll hear from you.
04-37 +++$+++ 22500 +++$+++ FALSE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Justice Stevens, and may it please the Court: This case today involves a conflict between Oklahoma's semi-closed primary law and a rule adopted by the Libertarian Party of Oklahoma which, contrary to that State law, would allow the Libertarian Party to open its primary elections not just to independent voters, but also voters registered as members of other political parties. The Oklahoma primary system simply requires that a person who is registered as a member of that party may only vote in that political party's primaries. If the voter desires to vote in another party's primary, all that voter must do is, within a reasonable time before the elections, primary elections, approximately 7 to 8 weeks, is disaffiliate from that first party and then reaffiliate as a member of that second party, or if the parties so chose to allow independents, he may registered as an independent in order to vote in that primary.
04-37 +++$+++ 22501 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, of course, I guess from the standpoint of the Libertarian Party, it's kind of a problem because a voter who wants to disaffiliate under Oklahoma law with their -- their prior registration have to do it basically 8 weeks ahead, at which time they don't know if the Libertarian Party will even qualify for having a primary. I mean, it just gives them a very impossibly short window. If the time were reasonable, that might be a different picture, but isn't that kind of burdensome?
04-37 +++$+++ 22502 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, the practicality of that matter is -- is that generally the parties are notified 10 days/2 weeks in advance of the registration deadline that they are being -- if -- being recognized as a political party. Of course -- and that's if that party has waited until the very last minute by statute in which to turn in their petitions and try to get recognized. Of course, those petitions could be turned in earlier, which would allow them more time to do so. But the practicality of the -- of --
04-37 +++$+++ 22503 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If they're turned in earlier, will they -- will they be ruled on earlier?
04-37 +++$+++ 22504 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. The Oklahoma statute requires that the election board take a -- has 30 days, a maximum of 30 days, in which to review the petitions, verify the number of signatures and the authenticity of those signatures, and then make a decision on whether to recognize or not recognize the political party.
04-37 +++$+++ 22505 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I guess there's a difference here between the interest of a small party and a large one. A small party would like, if there is a deadline, to be as close to the election as possible so voters have a chance to get fed up with the two big parties. (Laughter.)
04-37 +++$+++ 22506 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's their chance. A big party would like it to be further away because then they can plan how their election campaign is going to be. Has any of this been litigated below?
04-37 +++$+++ 22507 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. The -- the only question that has really been litigated below is whether section 1-104, which is the semi-closed primary law, is burdensome on the association rights of the Libertarians.
04-37 +++$+++ 22508 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In line -- in line with Justice Breyer's question, does the State of Oklahoma have an interest in insulating major parties from competition for members?
04-37 +++$+++ 22509 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not from insulating them from competition, Your Honor, but the State of Oklahoma does have -- it has a closed primary system. It has -- it has an interest. And this Court has found that interest, as recently as in Timmons, that it does have an interest in a stable political system, which may be a two-party system. As long as --
04-37 +++$+++ 22510 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you have a -- the State has an interest in protecting major parties from losing their members and thereby weakening the two-party system by benefiting a third party. I thought that's contrary to the whole thrust of our holding in cases such as Anderson and Celebreeze where third parties are entitled to special protection under the First Amendment.
04-37 +++$+++ 22511 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, since that time in Anderson and as Timmons and other cases cite, if the regulation is a neutral, nondiscriminatory regulation, then it is a proper regulation as far as it is applied to all the parties. In regards to the requirement of registration, change of voter registration, all of those are applied equally across any -- any party, whether it be the Libertarian Party, the Democratic Party, Republican Party, or any other party which may be recognized at that time in the State of Oklahoma. And back to Justice Breyer's comments, the period of 7 to 8 weeks prior to a voting -- to a primary election is actually a very short time as compared, for example, to Rosario which this Court --
04-37 +++$+++ 22512 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, even in presidential elections, most people don't get interested until 4 or 5 weeks before the election. Everybody knows that.
04-37 +++$+++ 22513 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, we -- this is not the presidential primaries of which we're talking about.
04-37 +++$+++ 22514 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I'm saying even in a presidential primary. If they're local races, it -- it takes longer. The public just tunes out until the last -- last couple weeks.
04-37 +++$+++ 22515 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the statutes in this -- or the sites or the -- the elections themselves are close in time, and -- and the statutes involving the petitioning have all been looked at as -- as courts and have been found that this is a close enough connection to the time of the elections, that that time frame of petitioning and getting the requirements for -- for petitions and the State recognizing the political party all fit comfortably within the confines of -- of constitutionality.
04-37 +++$+++ 22516 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Poe, the -- the district court in this case rejected all grounds except one. It rejected the raiding and swamping. It said that's what the Libertarians want to expose themselves to. It's not for a State to be paternalistic to protect them against their own bad choices. But it said this request is damaging to the majority parties, to the major parties, because it poaches on their members. But there is not in this litigation any major party that's complaining about that. So if that is the rationale that the district court went on, can this Court possibly uphold it when there is nobody, as far as we know -- they haven't even come into this case at this level, filing a friend of the Court brief.
04-37 +++$+++ 22517 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. This Court can find -- first of all, that the local Democratic and Republican Parties were not named in -- in the action, and as to why they were not in the action in lower courts I do not know. But the State has its interests and has to protect those interests whether those parties are involved in litigation or not.
04-37 +++$+++ 22518 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, when you -- would you say that the rationale on which the district court rejected the Libertarian Party's claim was unsatisfactory?
04-37 +++$+++ 22519 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. Under Monroe before this Court, I think the Court was looking to the potential, the possibility, of course. And as to the fact pattern we had at the trial court, it was a very minor party wanting to -- or effectively poach voters from the two major parties. But you have to look at the entire statutory scheme and not just how it would apply. It could be applied by the Democrats or the Republicans. But also more importantly, in Monroe this Court clearly stated that a State does not have to wait until it sees actual damage to its political or electoral system to make reasonable decisions. In fact, this Court says the States should have the foresight to make those reasonable determinations in an effort to prevent those -- those potential evils from occurring if the likelihood of -- of that is there. And the district court made very --
04-37 +++$+++ 22520 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Poe, I -- I -- here I am.
04-37 +++$+++ 22521 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Excuse me, Justice Scalia.
04-37 +++$+++ 22522 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I suppose that if -- if I were the party chairman of the Republican or Democratic Party, I'm -- I might have defended your -- your State system if I had been named as a party, but if I were not named as a party, I'm not sure that I wouldn't -- I wouldn't decline to come in as an amicus, even though I'm interested in the outcome simply because I don't want to alienate my Republican members by depriving them of the freedom, if they want to do it, to go vote. You know, it makes you look sort of parsimonious, doesn't it, when you tell your Republican members, I don't want you to vote in the Libertarian primaries? I -- I don't think we can say that it doesn't hurt the Republican Party or the -- or the Democratic Party simply because they hadn't filed an amicus brief.
04-37 +++$+++ 22523 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would agree, Your Honor. I -- I think the -- the fact that they're not there -- here the Court --
04-37 +++$+++ 22524 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They are, after all, politicians, aren't they? (Laughter.)
04-37 +++$+++ 22525 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And they do like to keep their party members as happy as they can.
04-37 +++$+++ 22526 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Poe, may I just focus in on exactly what the injury is? Is the injury that they vote with the Libertarians or that they don't vote with their own party?
04-37 +++$+++ 22527 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the injury is twofold, Your Honor. And -- and first, it is the fact that by them not voting in the primary to which they have associated -- and that is registering as a Republican or a Democrat -- if they go to the polling place and at the last minute decide to go and vote in the Libertarian Party primary, their decision not to vote in the Republican primaries, when candidates have been trying to -- to use voter lists trying to get to their party members to vote --
04-37 +++$+++ 22528 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But wouldn't it be precisely the same injury if they just didn't like the Republican candidate in that particular election, decided to stay home?
04-37 +++$+++ 22529 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if they had already made the decision to stay home, then they would not be voting for the candidate, but they would also not be voting in another party's primary.
04-37 +++$+++ 22530 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How -- how are they hurt by the fact that rather than staying home, they decide to cast a vote for a minority party candidate?
04-37 +++$+++ 22531 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the party is here because it has the -- the possibility, for those who are not voting, of changing the elections of the candidates. And I think also by --
04-37 +++$+++ 22532 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it's very unlikely if it's a party that is -- gets the small vote that this party gets. But you -- no matter how small the vote is, you still find the injury to the major parties because they voted for the Libertarians or because they didn't vote at all?
04-37 +++$+++ 22533 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because they voted either way of voting -- or for voting in the Libertarians and -- and not voting, they have changed and possibly have changed, especially when they went to the --
04-37 +++$+++ 22534 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is there any evidence on the question whether the -- the support for the major party candidate is any smaller than it would have been if there had been no Libertarian Party at all?
04-37 +++$+++ 22535 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There -- there's nothing in the record that supports any of that.
04-37 +++$+++ 22536 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And -- and a very similar question. Is there anything in the record that indicates that those who would vote in the Libertarian primary are the stay-at-home Republicans or the Republicans who would otherwise have voted in the Republican primary?
04-37 +++$+++ 22537 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There -- there is nothing in the record. There was no type of polling. There was some -- some expert testimony as to the potential reasons for people voting in a Libertarian primary such as purposeful intent to do harm to Libertarians or walking in intending to vote --
04-37 +++$+++ 22538 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that -- I mean, the Libertarians are happy to have -- take that risk.
04-37 +++$+++ 22539 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-37 +++$+++ 22540 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It seems to me if we don't know whether the -- the Republicans who are going to migrate to the primary are stay-at-homes or Republican voters, the State has no basis even to say whether in fact the harm it's trying to prevent is going to be affected one way or the other by its rule.
04-37 +++$+++ 22541 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I think, Your Honor, there -- there is a context or -- there is belief that it will harm. And there's been no polling in this action, and there's no -- there was only one other State that has a open -- what we have termed in this litigation as a -- a semi-open primary. And there's no data that has effectively come out of their one primary that says why people are not voting, why they're voting in one primary or not or the effects of that. I can give you --
04-37 +++$+++ 22542 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Poe, I -- I -- why do you rely only upon the damage to the Republican and Democratic Parties? I frankly don't care much about that, but I might care a whole lot about damage to -- to Oklahoma's system of election. Why do you allow party designations? I suppose it is because you want people to know that there are candidates who are associated with particular political views. And to allow a party to, in effect, come in and say, we don't have any particular political views, we -- we just want to nominate, you know, whoever the most people want to nominate, that just destroys the whole purpose of -- of your system of allowing people to run under a party label. What's the use of a party label?
04-37 +++$+++ 22543 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and, Your Honor, we -- we provided that information and those interests to -- to the district court. And those are interests the State has. It is if a party is running as a party and if the State -- there -- there may be an interest in it. I'm not sure --
04-37 +++$+++ 22544 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It -- if it's running as a party, it should run somebody who -- who shares the views of the people in that party, which is somebody who is nominated by -- by the people in that party, or at least those people, joined by others who are not affiliated with another party. That seems to me to make a lot of sense. And it seems to me to destroy that system if -- if you say, hey, we're -- you know, we -- we're going to allow the Libertarian Party to say, you know, we don't have any real views. We're just going to -- we want to nominate somebody that most people like. So let the Republicans come in, the Democrats come in. The only thing we want is to win. We don't really care.
04-37 +++$+++ 22545 +++$+++ TRUE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that is the premise, of course, of the voter registration. And -- and that goes back to another -- an adverse effect on the State and the State's political system is this Court has recognized -- it recognized it as recently as Jones and it has recognized in other cases -- that there is a -- a party labeling or a party identification that voters use in a general election. And if the poaching of members have changed the -- any of those party -- those messages from that party, then the reliance is going to be misplaced by those party members when they go. They go to vote for a Democrat. They see the D or the R or the L. And more importantly, in this case we're not talking just about the Libertarian Party, the effect of the Libertarian Party. It could very well the effects on all of the political parties. In fact, that effect could happen if the Democrats wanted to open theirs up and run that effect on the Libertarian Party. Another reason, especially that is specific to Oklahoma, to help prevent party factionalism and party splintering. In Oklahoma, when a new party is recognized, a -- a potential candidate has the opportunity within 15 days of the party being recognized of changing his voter registration. That can even be outside the parameters of section 4-119. In that instance, there is the potential and I think the probability of this occurring is that -- let's say there are four or five candidates who have announced for the Republican nomination if they want to get their nomination, and one of them decides I don't want to compete against those others. A new party comes in. He is excused from the 6-month disaffiliation requirement. Within those 15 days, he can change to the Libertarian Party in hopes of getting that nomination, get the party support and the party structure. By that happening, you then incur -- by allowing this party-option primary, you then -- that would promote party splintering, party factionalism. And the manner of that individual going to the Libertarian Party the day of the election without any prior registration -- those Republicans who may have supported him leave the Republican Party and start to choose that. That's splintering that this Court has specifically said is not only a legitimate, important State interest but is also a compelling State interest to effect. Poaching has the same effect as raiding. It is a little different how it gets there, but it has the same effect. And raiding has been determined to be even a compelling State interest in this Court. I would like to reserve the rest of my time.
04-37 +++$+++ 22546 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's fine. Mr. Schaerr.
04-37 +++$+++ 22548 +++$+++ FALSE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: In the decision below, the Tenth Circuit stuck -- struck down an election rule that has been adopted by nearly half the States pursuant to their authority under Article I, section 4 to prescribe the manner of holding elections. In so doing, the Tenth Circuit in our view made three fundamental errors that I'd like to address briefly. The first was the Tenth Circuit's per se approach to determining whether the alleged burdens here are severe. That's an extremely important issue, of course, because to our knowledge, this Court has never invalidated a State election regulation under the First Amendment without first finding that the burden at issue was severe. But instead of looking at that issue closely, the Tenth Circuit, at page 15 of its decision, simply assumed that a severe burden necessarily arises from any regulation that, quote, restricts the options of parties seeking to define the scope of their associational rights. Now, one would have thought that it's for courts to determine the scope of a -- of a party's associational rights rather than -- than the party itself. But in all events, that was the sum total of the Tenth Circuit's analysis on the -- on the question of severe burden. Now, the respondents cite that finding, but they -- they make no attempt to defend that approach. They argue instead that the burden here is severe because, at bottom, Oklahoma requires a Republican or Democrat, wishing to vote in the LPO primary, to -- to disaffiliate from the party 2 months in advance. But that burden is no more severe than others that this Court has found constitutionally acceptable. The burden on voters, for example, is less severe than the burden this found -- this Court found acceptable in Rosario, which was a -- a requirement, as Mr. Poe mentioned, that voters, wishing to vote in a -- in a party's primary, register as a member of that party some 8 to 11 months in advance. The burden on the party is also less severe than a burden that this Court found acceptable in Burdick which is that a party wishing to qualify for a primary ballot gather the necessary signatures, in that case 1 percent of the voting population, 5 months before the primary. It's 2 months here. And it's also similar to a burden that all the members of this Court found acceptable in Burdick, which was -- which was a requirement that a candidate wishing to run on a nonpartisan primary ballot collect the necessary signatures about 2 months before the primary. And the message of these decisions -- and I think it's fair to say the holding in Burdick -- is that requiring participants in elections to take action a few months sooner or a few weeks sooner than they might prefer does not amount to a severe burden. And that's the only real burden here. The LPO has to --
04-37 +++$+++ 22549 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I guess the one other concern would be the timing in Oklahoma is such that the -- the Republican or Democrat who wants to disaffiliate in order to vote with the Libertarians has to do so at a time before the State has decided whether to allow the Libertarian Party on the ballot. So, you know, it probably isn't burdensome to -- in principle, to have some disaffiliation requirement, but does the State have to allow enough time so that the decision can be made with knowledge of whether the Libertarians are going to be on the ballot?
04-37 +++$+++ 22550 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice O'Connor, I -- I think that's really up to the party. And I -- and I think that gets back to my point about Burdick. Yes, there is a deadline and if the LPO --
04-37 +++$+++ 22551 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It just seemed to me that it might be more burdensome on the voter in that situation.
04-37 +++$+++ 22552 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I -- I think that's true, but again, the burden on the voter depends on what the LPO does. If the LPO marshals its resources, gets -- gets its message out, determines who its candidates are going to be or who its potential candidates are going to be in advance of the filing deadline and in advance of the deadline for filing a petition to become a recognized party, then the voter will have ample time to make a decision. It's really only if the LPO procrastinates that the voter is put in that position. It's not really a function of the -- of the State law.
04-37 +++$+++ 22553 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let me just ask you to look at the other side of the equation. However we assess the burden, we're assessing it in relation to the State's interest. What is your best statement of the State's interest here that you think is defensible?
04-37 +++$+++ 22554 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think -- I think the State's interest is what the district court found it to be, and I think the -- the district court actually found two interests, not just one. It found an interest in avoiding poaching and an interest in promoting party loyalty along the lines that Justice Scalia mentioned earlier.
04-37 +++$+++ 22555 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do -- do you think the -- the poaching argument stands up on any -- any empirical basis?
04-37 +++$+++ 22556 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do. And in fact, the -- the district court at -- at page 49 --
04-37 +++$+++ 22557 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May -- let me just add quickly. I -- I realize, of course, there's going to be some movement of voters, but do we have any idea whether the voters who are moving are the ones who would otherwise have stayed at home anyway and done nothing, merely nominal Republicans as opposed to active Republicans?
04-37 +++$+++ 22558 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. We -- we do have answer to that. That is implicit, first of all, in the district court's finding that poaching would, in fact, made -- make a difference in the -- in the outcomes of the elections. He -- he made that finding very clearly on -- on page 49 --
04-37 +++$+++ 22559 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, he found that the numbers are such that they could, but did he find -- and I'm not sure of this. Did he find that the actual people who migrated would otherwise have voted differently so that in fact it made a difference?
04-37 +++$+++ 22560 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is implicit in his finding. He said the institution -- this is again on page 49. The institution of a party-option open primary format in Oklahoma, as sought by the plaintiffs, would likely affect the outcome of some primary elections. That -- implicit in that is the view that there -- there would be some voting Republicans and voting Democrats that would be moving to the LPO, not just the nonvoting Democrats and Republicans. Now --
04-37 +++$+++ 22561 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was there a basis in the record for making that finding?
04-37 +++$+++ 22562 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Mr. Darcy's testimony, which I believe appears at -- at page 63 of the joint appendix, in that -- in that general area, anyway. Now, poaching -- poaching is a concern and -- and a legitimate and important concern to the States for three important reasons. I -- I might mention that in Tashjian this Court mentioned in footnote 13 that a -- that an open primary could have disorganization effects on the other parties, and poaching is one of those, as the district court found. And -- and it's a concern for three independent reasons. First of all, the State has an interest in preventing poaching because that helps protect parties from spurned candidate candidacies which was one of the -- the Court in Tashjian identified Storer and Rosario as examples of that. And -- and the -- the semi-closed primary protects parties against that. For example, if a candidate for the Democratic nomination felt that she wasn't getting enough support from the party leadership before the primary, she might form or join another party and then try to take -- take her supporters with her into that other party. And although Oklahoma allows the candidate to switch parties in that circumstance, the -- the semi-closed primary and the 7-week period or 7- or 8-week period, standoff period, if you will -- that period protects the party from having its voters poached as a result of a -- of a spurned candidate joining another party. The second reason that poaching is a significant concern is that -- is that it can lead to efforts, strategic efforts by -- by other parties to influence the outcome of another party's primary. For example, suppose we're in California in 2002 a few days before the gubernatorial primaries there. The Democrats have already decided that their incumbent, Governor Davis, will be nominated, so they're looking ahead to the general election. And they see two possible Republican candidates, Reardon and Simon, to pull two names out of a hat. And they conclude that -- that they have a better chance of beating Simon than they have of beating Reardon. Well, what can they do to affect the -- the outcome of the Republican race? One possibility, if the Republican primary is open, is to raid it by having some Democrat switch registration and go vote for Simon. And of course, the Court has said repeatedly that States have an important interest in -- in preventing that kind of behavior. The other possibility is for the --
04-37 +++$+++ 22563 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that's not permitted in Oklahoma, is it? That kind of behavior is not permitted in Oklahoma.
04-37 +++$+++ 22564 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-37 +++$+++ 22565 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-37 +++$+++ 22566 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. And the other possibility, though, is for the Democrats to open their primary and to lure some of the -- some of the Reardon voters out of the Republican primary through targeted advertising or direct appeals from the candidate or something like that.
04-37 +++$+++ 22567 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, neither of the major parties has done that in Oklahoma, has it?
04-37 +++$+++ 22568 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not that I'm aware of, but -- but it is -- but it is a plausible concern that a legislature would have. And as Justice Scalia said, these --
04-37 +++$+++ 22569 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the question is whether when a minor party like the Libertarians do it, is -- is it going to have that effect.
04-37 +++$+++ 22570 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there -- there's another scenario for -- in the California example, for example. Take -- assume that the Democrats, instead of opening up their own primary to Republicans, they strike a deal with the Green Party such that the Green Party makes an effort to peel off the Reardon voters out of the Republican primary voting pool in California. That --
04-37 +++$+++ 22571 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the cost of that deal would -- they'd also run the risk the Democrats would -- would migrate also if they made that deal.
04-37 +++$+++ 22572 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It depends on how they ran -- ran the campaign. In all events, it's a -- it's a plausible scenario and -- and one that the State is entitled to respond to before it -- before it actually happens. Now, the -- the third reason that poaching is a problem is that --
04-37 +++$+++ 22573 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I apologize for taking your time with a question, but I'm afraid your time is up.
04-37 +++$+++ 22574 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-37 +++$+++ 22575 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. Mr. Linger.
04-37 +++$+++ 22577 +++$+++ FALSE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, may it please the Court: The integrity of a political party should be defined by the political party and not by the State. The State interest that they have asserted here and alleged is to prevent against draining, and draining the State has defined as the inverse of raiding. Now, raiding, of course, is the State preventing and keeping out of a political party disloyal voters of another party coming in for a purpose to hurt that party. Now, if draining is inverse raiding, then the State is saying that it has an interest in keeping in to a political party disloyal voters. So the State is asserting and is at cross purposes that it has an interest to both keep out disloyal voters from a political party's primary and at the same time keep in disloyal voters.
04-37 +++$+++ 22578 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is that inconsistent? Because I mean, you're -- you're basically advocating that the Constitution requires Alaska's rule, and I thought that -- we got briefs on that, I think, in -- in the previous case and a lot of other parties thought Alaska's rule was not a wise rule, though that's up to Alaska. But to think that the Constitution requires that is surprising. The interest they assert is just the one you said --
04-37 +++$+++ 22579 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
04-37 +++$+++ 22580 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that the Republicans, in order to have their party work, have to be able to plan a campaign for a stable group of voters. They have to know, roughly, who is in their party, let's say, a week before or 2 weeks before, some period of time before. And that's the interest that Oklahoma is asserting. It has nothing to do with you. It has do with -- and it has zero to do with you if you had a rule for minor parties, frankly. But if you can't get a rule for minor parties, special, then you have to take it seriously I think.
04-37 +++$+++ 22581 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Most States --
04-37 +++$+++ 22582 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's your answer? What do you respond --
04-37 +++$+++ 22583 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, most States have a rule for minor parties. They don't treat, like Oklahoma does, you're either a party or you're a nothing.
04-37 +++$+++ 22584 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The States do but to say that the Constitution -- and I'm asking. You see, I'm not -- but I -- if I could figure out how in the Constitution you had a special rule for minor parties, the interest that they're asserting has very little to do with it. But I don't see how you can have a constitutional rule that would forbid -- allow you to open and drain, but wouldn't allow the Dems to do the same as they've done in Alaska.
04-37 +++$+++ 22585 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think in -- in Alaska, of course, right now there is a party option where all the parties but the Republicans have opened the primary. They have a blanket primary. The Republicans haven't and the Republicans, of course, in Alaska happen to be the dominant party. There seems to be a pattern in these cases --
04-37 +++$+++ 22586 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, because they say -- what they're thinking, I take it -- I don't know what they're really thinking, but I imagine they could be thinking, no, we don't want to open our primary. We'll run the risk that our voters go over and vote for the Dems and like it there and stay. We'll run that risk, but we don't want them coming and raiding us. We think that's the bigger risk.
04-37 +++$+++ 22587 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and that --
04-37 +++$+++ 22588 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And how can the Constitution tell them that they can't make that judgment? That's what's bothering me.
04-37 +++$+++ 22589 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think the -- I think the Constitution -- and the Court has recognized that it is legitimate to protect against raiding because we can all suppose how disloyal voters coming into a party could hurt it. But how about disloyal voters leaving a party? Because these voters that would come in and vote in the Libertarian --
04-37 +++$+++ 22590 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Go back to my interest, the one I asserted --
04-37 +++$+++ 22591 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-37 +++$+++ 22592 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- which isn't that. It is the interest in the Republican Party in Alaska saying to itself we do not want our voters to go leave and vote for the Democrats because we want a stable body of people 3 or 4 weeks before the election for whom we can plan. We don't want to open ours because we don't want the raiding. We want to keep --
04-37 +++$+++ 22593 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And, Justice Breyer, that sort of First Amendment view of your voters shows that the party thinks that they own the voters. We hear this language where the party is contributing voters or they're being poached or it's a donor party. That shows a certain view of the party and what they --
04-37 +++$+++ 22594 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. It's not an ownership, but you have a period of time. So you focus on the period of time. They're saying, of course, up to X period of time, they take their choice. Is this a fake thing, a fake reason, the need to have a stable group of people for whom you plan your campaigns? Now, is that a hoax or is it flimsy or is it serious? What do you think?
04-37 +++$+++ 22595 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think it is flimsy and I'll tell you why because I think paternalistically the State of Oklahoma is way off or the Republican Party, if they thought that way in Alaska, would be off. If you really think about it, a party, particularly at the general election, wants its loyal voters to get to the poll. Actually this would be a benefit to the Republican and Democratic Parties in Oklahoma or the Republican Party in Alaska because it allow them to find out which of their voters had voted in their primary and which had defected to another party. When they're sending out mailers or doing phone banks or driving people to the polls, they're going to want to take their loyal voters. So this will actually serve to help them to identify some of their voters who aren't loyal, and they won't want to bring them in. So I'm saying that --
04-37 +++$+++ 22596 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The -- the State -- the State of Oklahoma doesn't want your party raided. And -- and you say we don't care if we're raided. Come raid us. All we want to do is win. It seems to me it -- it -- you cannot apply the -- the maxim, volenti non fit injuria. Oklahoma is saying to your party, you can't welcome raiding. We don't want your party to be raided whether you like it or not because that's what a party system is. We've set up these elections that -- that have party primaries and party systems on the assumption that each party is going to have a certain -- a certain belief, a certain philosophy, and to allow your candidate to be elected by everybody simply destroys that system. Why is that -- why is that so unreasonable that it's unconstitutional?
04-37 +++$+++ 22597 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because it's -- it's not practical on what happens. As Justice O'Connor pointed out in her questions, there is such a limited time. The Libertarians, as shown in the record in this case, have never and continually do not have the time to build up a voter pool. They have their supporters spread out among a number of political affiliations because there's such a little amount of time that you can register as a Libertarian, unlike the vast majority of States. I don't think anyone has ever accused the Libertarian Party of not having a set philosophy on what they stand for. But the fact of the matter, this Court itself has expressed skepticism about whether even party raiding ever exists. People don't go out generally to vote because they want to pick someone who's a bad candidate. They want to vote for someone they feel proud of who expresses their views. The people that the Libertarians would appeal to would be Republicans and Democrats who either weren't going to vote in their primary or those who were very Libertarian oriented or people who would be Libertarians if they had more opportunity under the law to register as Libertarians. They're, in effect, marooned --
04-37 +++$+++ 22598 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Weren't those --
04-37 +++$+++ 22599 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- over these other affiliations.
04-37 +++$+++ 22600 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- weren't those who would like to nominate the Libertarian candidate who would attract the most people from the other large party? Right?
04-37 +++$+++ 22601 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Who would they attract? They would attract Libertarian-oriented people who would be drawn by their philosophy because the Libertarian Party, as with most minor parties, is an ideological party. They take positions oftentimes ignored by the major parties, and that is one of the reasons that --
04-37 +++$+++ 22602 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but -- but the candidate mostly to attract people from one of the major parties is the candidate that is -- is more likely to water down the pure Libertarian message and be closer to the message of the Democratic Party or the Republican Party. And -- and --
04-37 +++$+++ 22603 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you can tell --
04-37 +++$+++ 22604 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- people who come into your primary may want to elect such a candidate so that the Libertarian Party will be strengthened and draw votes away from the other majority --
04-37 +++$+++ 22605 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course, this Court, I think, has recognized that raiding is not a legitimate concern for the State that overcomes a party that would open up. And that's what the district court so held. We go into the inverse of draining and talk about the effect it would have on the Republicans and Democratic Parties. I think the -- the district court said several times in its opinion that the results would be highly speculative. But I say that the results would probably be to the benefit because it would ensure major parties that they got a nominee who was picked by loyal supporters of the party, and what would be drained off would be disloyal supporters who would rather be doing something else. And that, of course, is the essence of competition. We should not be worrying about protecting the major parties from competition for ideals. This is --
04-37 +++$+++ 22606 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do I understand your brief to say that this constitutional rule that you are seeking would be just for the minority party? I think you said in your brief it doesn't follow like the night the day that because the Libertarians must be allowed to do this by the Constitution, therefore the Democrats and Republicans must also have the option to invite anyone into their primaries.
04-37 +++$+++ 22607 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The finding of the Tenth Circuit was, of course, that it applied to these plaintiffs under these particular facts. And I think that's one thing to remember, how cautious and conservative this Court and the First Circuit in Cool Moose were. They didn't make a broad-based rule, and I don't interpret this decision and I don't interpret the teaching of this Court in footnote 13 in Tashjian is that we should come down and make some bright line rule that's always going to say we have to have a party-option open primary or not. We need to look at the factors. I think there are very few States that this would even apply to because, as we know, 21 States don't even have political primary registration.
04-37 +++$+++ 22608 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What facts? We -- we have to evaluate it on the basis of each election? What is a State legislator supposed to do when he votes for a -- an election system? He's going to flip a coin trying to figure out what the fact situation will be when this -- when this system finally gets before a court? Surely that -- that can't be the test.
04-37 +++$+++ 22609 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do -- I do ask that the State legislatures think about what they're doing. And as I demonstrated --
04-37 +++$+++ 22610 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay. But you -- you want them to think and you want to leave the door open to their making a distinction for these purposes between the major parties and the minor parties, and I can't think of anything more intrusive into the political process than that. Coming from a Libertarian, I -- I get a sense that I must misunderstand you, but I don't know where it is. (Laughter.)
04-37 +++$+++ 22611 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm saying that I -- I don't -- I don't think courts should ever go out and look for cases in advance. We look at the case that is --
04-37 +++$+++ 22612 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, but we are -- we have got to look around the corner.
04-37 +++$+++ 22613 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- about the effects.
04-37 +++$+++ 22614 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And -- and if you're issuing the invitation to come up with a different rule for Republicans and Democrats and Libertarians, I think you're asking for trouble and we would be asking for trouble if we accepted that invitation.
04-37 +++$+++ 22615 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I'm -- and as I said before, I think the political party should be the one that defines its integrity --
04-37 +++$+++ 22616 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then -- then if you say that -- I want you to just respond in detail to the questions that I think Justice Scalia and Justice Souter were asking, as I understand it, putting it dramatically, that if you win this case, Alaska's system becomes the Constitution of the United States. Now, that I know you think is not so, and I want to know why.
04-37 +++$+++ 22617 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because, number one, first, let's eliminate the 21 States that do not have political party registration. They would not -- in fact, the -- the problem that we're worried about here, draining, and -- and the problem is going to happen simply because people in those States, like President Bush's Texas, are free from election to election to go to any primary they want to --
04-37 +++$+++ 22618 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's the same as election system -- that's the same as Alaska's system. Right? I mean, it boils down to the same thing. It boils down to an open primary, doesn't it?
04-37 +++$+++ 22619 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, I respectfully disagree because Alaska, unlike Texas, has political party registration. Also, they have a party option. And most States that have political party registration, in fact, have a sort of two-tier system where they recognize it would be discriminatory to treat major parties and small political parties the same. Most of them like, for example, the amici States here of New Mexico, Maryland, they have political conventions for their -- they recognize that that is something that shouldn't be applied to the smaller parties. But Oklahoma, of course, mandates primaries. The Libertarians of Oklahoma are forced to have primaries. They're forced to live under what is the most restrictive ballot access and ballot retention laws, which limits the amount of time they could be on the ballot. The voter registration laws, as was cited in the record of this case, as the trial judge found, of the 29 States that have political party registration, essentially 26 of them have -- they have free and open registration. There are very few that limit things across the board like Oklahoma does, and that's what makes this case unique. And I think the footnote 13 in Tashjian talked about looking at the particular facts and circumstances. I think this case gives the Court an opportunity to fully expand on that footnote, the full footnote, of course, as I cited in the brief for the respondents, and that is to say that all these are factors when you're analyzing any State. Is -- does it have political party registration? Does it mandate primaries for even the little parties? How much time is available to change your registration as new parties come up? The New -- State of New Hampshire, of course, has found a way to deal with this problem, which Oklahoma hasn't, which is that they allow new parties that are just recognized. Where many voters didn't have the opportunity to register in that party, they have an open primary. That's one way to deal with it. But the point is Oklahoma didn't even think about that. As we pointed out in our brief, the sore loser provision where you have to be affiliated with a party for 6 months -- the legislature -- when the first time the Libertarians got on the ballot 25 years ago, they didn't even realize that there was no way you could be affiliated with a party for 6 months because you couldn't register with it. And the law and the workings of all these registration laws in Oklahoma, because they are so restrictive, prevent the Libertarian Party to get in the position that the major parties have because they simply can't get their people registered and stay registered with the Libertarian Party because they're constantly being purged and they're -- the people are frustrated.
04-37 +++$+++ 22620 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would there be a way -- suppose, for hypothetical purposes, the Court were to say -- you got a ruling that said there is no rule in the Constitution that forbids a State, as a general matter, to forbid this cross registration, this jumping, for a reasonable time. But a reasonable time has to take into account the interests of minor as well as major parties. Now are you foreclosed because of the circumstances of this case from litigating whether 8 weeks is a reasonable time and whether the disjunct between the period where you become a party and that 8 weeks is unreasonable in the circumstances or other specific things that you say work to the disadvantage of the Libertarians?
04-37 +++$+++ 22621 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's something reasonable, but in this case it is unreasonable because you simply don't have the opportunity to register. Remember this --
04-37 +++$+++ 22622 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought your case was you want to appeal to people who don't want to register as Libertarians and don't even want to be independent. You want to appeal to people who are and want to be members of the Republican or Democratic Party but have Libertarian leanings, but they don't want to give up their party affiliation.
04-37 +++$+++ 22623 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that is part of the appeal. There are obviously some people simply because of family tradition or it may help them with their job or because the Libertarians are controversial, some people may want to keep it quiet and don't formally affiliate other than they might wish to vote. But our appeal and request was not simply those people but to many people, the vast majority of Oklahomans who never vote --
04-37 +++$+++ 22624 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The last category could -- could register as independents. I mean, if they're ashamed of -- of the L word, they -- they could just register as independents. Right?
04-37 +++$+++ 22625 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A person can do that, yes. And, of course, independents are growing. I think, as you know --
04-37 +++$+++ 22626 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but that you could do right now, and you say that's not enough. We want people who are members of other parties and don't want to change their party affiliation.
04-37 +++$+++ 22627 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We would like -- first, when you have competition in ideals and in politics, it's always a continuing process, and they're hoping to win all these people over. They don't want these people to stay in other political parties, but they are opening it up because they have such a limited period of time in Oklahoma when people can formally affiliate with the Libertarian Party or, for that matter, any newly recognized party. Think of it this way. When counsel was talking about the Rosario case where you -- the -- the State was allowed to have 8 to 11 months and the Court found that was acceptable to change your registration or the older case of Kusper v. Pontikes where the Court found that 23 months in -- in advance to change your affiliation was too much, in Oklahoma, whether it's 23 months before the newly affiliate party gets recognized or 8 to 11 months, you can't register with that party. So if it was unreasonable in Kusper v. Pontikes but was reasonable in Rosario, the point is under either of those time periods, in Oklahoma you can't register with a newly recognized political party. So how can that be reasonable? The Libertarians do not have the opportunity. Newly recognized parties under Oklahoma law do not have the opportunity to get their people in in time, to the extent they could, as demonstrated in the record by States of similar population like Kansas and Arizona and, as I noted in the brief, Oregon where there are substantially more --
04-37 +++$+++ 22628 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What did -- what did you seek in this action? What did you seek in this action? Did -- did you seek just more time to -- to register? I -- I thought you -- you sought to overturn the -- the system entirely and -- I mean, maybe you asked for too much.
04-37 +++$+++ 22629 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As -- as to the Libertarians, we asked that we have a party-option open primary, which I think is acceptable, and it's what New Hampshire does.
04-37 +++$+++ 22630 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So more -- more time might be -- might be a good idea, but that wouldn't satisfy your -- your complaint here.
04-37 +++$+++ 22631 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you go -- if you go --
04-37 +++$+++ 22632 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your -- your complaint is no matter how much time you're given --
04-37 +++$+++ 22633 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the legislature -- if -- if the law is overturned and the Tenth Circuit is affirmed, the legislature might go back in then and address the problem and they might come up with some solution as they did back in 1980 when it became apparent to them that they had set up a system where Libertarian candidates couldn't be candidates for State office because they couldn't be affiliated with a party with 6 -- for 6 months. They made the change that is set forth in the statute that allows 15 days after the party is recognized. It might very well be that a possibility the legislature could pursue that could solve this problem, a problem created by the State of Oklahoma, would be to allow a period of time after a party is recognized for voters, not just candidates, but for people who just want to vote in the primary to change. That might be one solution. Or it might be, as in the State of New Hampshire, where they allow that if it's a newly recognized party and we recognize that all these people in the State never had the opportunity to register in this party, then they will have an open primary there. So I don't think there's one solution for this problem, and I think when the law, hopefully, is held to be unconstitutional as it applies to Libertarians, then the Oklahoma legislature can come in and perhaps remedy the situation then. Now, this -- this case is one in which there are some other factors that have to be considered, and that is the importance that is put on First Amendment rights to political association. The State of Oklahoma, contrary to the brief of the petitioners, has not been overburdened with minor political parties. It is a State in which only in presidential elections, by petitioning, have parties even been able to gain ballot status. The State has also a very severe -- the trial judge in this case found that the retention requirement of 10 percent for every general election for the top of the ticket was very difficult. The finding was that the registration here was among -- very limited and among the most difficult. And finally, the State has imposed, I think unwisely, primaries on these small political parties. But other than the Libertarians and the Reform Party, there have been no other minor parties on the Oklahoma ballot. In this situation, we have to say to ourselves, as the trial judge in fact commented on, is whether or not the law is simply the result of the concerns of the major parties. I do not think that the State legislature in Oklahoma went out of its way to try to interfere with the rights of Libertarians. I just think that they never really considered them, and that is why this Court has said on a number of occasions that when the rights of independent voters and small parties are impacted by legislation, that this Court should exercise more strict and careful scrutiny there because --
04-37 +++$+++ 22634 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But how does that square with Timmons where this Court turned away a party that says, we've got this candidate and she's running on a major party ticket and she's happy to be on ours too? And the Court there said the State can legitimately eliminate -- limit the candidate to one party affiliation. So if it can limit the candidate to one party affiliation, why not the voter?
04-37 +++$+++ 22635 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because that was a candidacy right, what the candidate was going to do, and in that particular case, this Court noted that the candidate of the Democratic-Farmer-Labor Party had a choice. That candidate could have chosen to be the candidate of the new party or that he could stay, as he did, with the Democratic-Farmer-Labor Party. We don't have the choice here. They wanted to have him be the candidate of both parties at the same time. We recognize that the State may properly limit each voter to a single nominating act, to a single vote, and we're not asking that. We're not asking that the State not be allowed to set reasonable times to let them know about what we're going to do. But in Timmons -- and I think Timmons is what led the district court astray here was what was not recognized was that there was a choice allowed in Timmons, and there's not a choice here. If -- if this had been in Oklahoma, in -- in that regard, there would have been no way for -- there's no way for a voter who's in the Republican or Democratic Parties who wants to vote in the Libertarian Party because of the unreasonable deadlines to change and because of the lack of opportunity, there's no way that they can register. So they don't have the choice to register as a Libertarian, as the candidate of the Democratic-Farmer-Labor Party did in Timmons, to change if he wanted to. He chose to stay in the major party. But that is one significant difference with Timmons. And also, of course, I couldn't -- I would also want to mention that Minnesota is a State that has no political party registration. So once again, the problem and issues we're confronted with here could not occur in Minnesota. But I think that's significant. And there was -- there was nothing on any voter that would have kept them from being able to vote for that particular candidate in the general election. They were going to be -- he was going to be on the ballot in the general election. In this case, the voters that don't have the choice that that candidate did in Timmons, they are not going to be able to express their opinion on a party that they would like to express an opinion in -- in their primary. And I think that is a very important distinction. I think that oftentimes in the standard that the court uses, that there is a difference, sometimes depending on which particular judge writes the decision on how a standard is explained. But in this case, it is, as the Tenth Circuit said and as the district court recognized, something that lies between this Court's decision in Tashjian and this Court's decision in California Democratic Party v. Jones. But in both those cases, the Court recognized and called for exacting scrutiny when a law was impacting a party's choice as to how it wishes to choose its nominees. I do not think that the rationale come up by the State, this thing about draining, taking -- keeping the disloyal voters in the Republican and Democratic Party and not letting them come over, whether they wouldn't have voted at all, or whether they didn't have the chance to register as Libertarians, or whether they simply are inspired by the particular candidates, I don't think in that situation that that is either a compelling interest by the State and I certainly don't think it is rational. And in fact, as far as being paternalistic, I think the State is totally wrong there because I think this would actually benefit the major parties. But I am saying to you that this is limited, under the Tenth Circuit's decision, to the facts in Oklahoma. And in other States, what the States can say there, if it comes up, is what is a difference between us and Oklahoma on ballot access and ballot retention, on voter registration laws, on requirements. Do we allow, like a number of the amici States, to have our minor parties select by political party convention? But all of this --
04-37 +++$+++ 22636 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What are the mici States? You said this a couple -- what are mici States? Mici States did you say?
04-37 +++$+++ 22637 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The amici, amicus --
04-37 +++$+++ 22638 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, the --
04-37 +++$+++ 22639 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- amici.
04-37 +++$+++ 22640 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. I thought you were saying mici.
04-37 +++$+++ 22641 +++$+++ TRUE +++$+++ MR. LINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Amici. Okay. In any event, we ask that the Court, when it fully considers this, under the particular facts and circumstances in this case and the record, that the Court will affirm the decision of the United States Court of Appeals for the Tenth Circuit.
04-37 +++$+++ 22642 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Linger. Mr. Poe, you have about 3 minutes.
04-37 +++$+++ 22644 +++$+++ FALSE +++$+++ MR. POE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I will try and be brief, Your Honor. The important thing to remember, in regards to most of respondents' argument today and in their brief, is that the events and the hurdles they are challenging now were -- have never been raised at any time prior to this briefing and this hearing. The district court did not make findings as to the difficulty of the ballot access or the ballot qualifications. He merely set forth what those were. The Tenth Circuit never even addressed anything in regards to ballot access or ballot qualifications and in relation to the need to open up a primary. And in the complaint, at the joint appendix page 22, the specific relief sought by the respondents is to have section 1-104, which is the semi-closed primary section -- have it declared unconstitutional. There's no mention of any other relief sought. No other section, the election primary scheme, or anything else mentioned in their complaint. It's never been raised before and it's never been addressed by any court and -- and should not be addressed by this Court at this point in time. There are no findings for this Court to rely on to review the allegations that have been made today. Where the district court -- or where the Tenth Circuit did error specifically is they found, as a matter of fact or as a matter of law, based on Jones and Tashjian, that any infringement upon a party's ability to associate is a compelling -- must -- is subject to strict scrutiny and requires a compelling State interest. Jones specifically says that is not the case. Tashjian implies that that is not the case. And the cases since Tashjian's time say a compelling State interest is not always the appropriate test. You look to the injury and then you look to the burdens. In this case, the appropriate burden -- or the appropriate injury is not severe. They are reasonable restrictions placed on Oklahoma to maintain the integrity of its political system and its election system. With that, the restrictions on -- in the Oklahoma statutes are reasonable restrictions that govern and control and support important State interests. For that reason, the Tenth Circuit was incorrect. The district court was correct in its analysis, and we would ask that this Court reverse that decision and find that those statutes are constitutional. Thank you.
04-37 +++$+++ 22645 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Poe. The case is submitted.
04-373 +++$+++ 22649 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument first today in Maryland versus Blake. Ms. Graeff.
04-373 +++$+++ 22651 +++$+++ FALSE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: In Edwards versus Arizona, this Court held that a suspect has a choice, after invocation of the right to counsel, to change his mind and initiate further contact with the police. The question in this case is whether that choice should be taken away, and a suspect's decision to speak presumed involuntary, when a police officer first makes an improper comment. The answer should be no when the impropriety is cured. When, under all of the circumstances, a reasonable person in the suspect's position would understand that it was the suspect's choice whether to speak or remain silent and that the police would honor that choice and stop questioning, a decision to speak should be deemed initiation, under Edwards.
04-373 +++$+++ 22652 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now, what has to be considered, by way of evidence, in evaluating whether the suspect has initiated the additional conversation? Is it appropriate, in this case, to consider the age of the person?
04-373 +++$+++ 22653 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. I think you would look at a reasonable person in --
04-373 +++$+++ 22654 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And --
04-373 +++$+++ 22655 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the suspect's --
04-373 +++$+++ 22656 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- and the fact that, on the charges which he saw, it said he was subject to the death penalty, but that was not correct?
04-373 +++$+++ 22657 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would go to whether the statement was voluntary, it would not go to --
04-373 +++$+++ 22658 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It would not --
04-373 +++$+++ 22659 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the degree --
04-373 +++$+++ 22660 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- you would not consider it in connection with the initiation --
04-373 +++$+++ 22661 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, the --
04-373 +++$+++ 22662 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- question?
04-373 +++$+++ 22663 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, the purpose of Edwards was to prevent police badgering. To prevent police conduct that, conveys, directly or indirectly, that the police are going to continue questioning until they get a statement, despite the invocation of the right to counsel.
04-373 +++$+++ 22664 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I --
04-373 +++$+++ 22665 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Counsel --
04-373 +++$+++ 22666 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- I suppose that if they knowingly put death on in order to get him off his balance, that would be badgering, wouldn't it?
04-373 +++$+++ 22667 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the purpose of Edwards was to prevent police questioning. So, when a curative measure conveys that, the police are not going to question any longer.
04-373 +++$+++ 22668 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but --
04-373 +++$+++ 22669 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
04-373 +++$+++ 22670 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the initial question Justice O'Connor asked is, Do we consider these other factors? And then -- but you're talking now about curing.
04-373 +++$+++ 22671 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And my answer is no, that we do not consider what -- the death sentence. There's two. In Bradshaw --
04-373 +++$+++ 22672 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then why consider age? I mean, the -- both of them go to the same point, and that is, What would a reasonable person suppose the suspect's understanding was at that point? And would it be fair to conclude that the suspect was, in fact, initiating conversation, rather than responding to the police or doing something irrational? And I don't see why the -- in effect, the false statement about the death penalty -- or true statement about the death penalty, for that matter -- doesn't go to the same point, just as the suspect's age goes to it.
04-373 +++$+++ 22673 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the critical inquiry is whether the suspect understood that it was his choice and that the police would stop questioning.
04-373 +++$+++ 22674 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the --
04-373 +++$+++ 22675 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, the --
04-373 +++$+++ 22676 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- but the trial judge made certain findings. He heard these witnesses. He heard the police officers. And he suggested that the -- Police Officer Reese was playing a good-cop/bad-cop game with Detective Johns. And so, that this -- the statement made by Reese, "You'll want to talk to us now, huh?" was designed to elicit an answer. And the trial court also said there is an additional factor, and that is this charge, that was intimidating even if it didn't have death on it, wasn't presented to Blake immediately. It could have been presented when he was put in the cell, initially. So, there were those factors. Those are relevant, are they not, to the character of what Blake said?
04-373 +++$+++ 22677 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think what -- you look at -- the relevant factors are the factors that go to whether a reasonable person would understand that questioning was going to stop. This Court has said that there were two --
04-373 +++$+++ 22678 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about the factors that I mentioned? Would they be relevant to a factfinder's determining what a reasonable person in that situation -- with the two police officers appearing, with the charges not being presented immediately, not being presented at the time the Miranda warnings were given, but only after -- would those be -- would those be relevant factors to decide if this was a voluntary initiated request to talk to the police?
04-373 +++$+++ 22679 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, because I think what you're looking at is not voluntariness. You're looking at knowing. Did this suspect know that the questioning was going to stop?
04-373 +++$+++ 22680 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but it --
04-373 +++$+++ 22681 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but you're --
04-373 +++$+++ 22682 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- it has to be --
04-373 +++$+++ 22683 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- you're making --
04-373 +++$+++ 22684 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- voluntary at some -- if you held the man's hand to a burning iron, we would -- we'd say that's not voluntary.
04-373 +++$+++ 22685 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's involuntary.
04-373 +++$+++ 22686 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, it has to be voluntary, certainly, in the lay sense of the term. Then the law has certain accretive force when we talk about, you know, involuntary as a matter of law. But what we're -- what we're talking about, it seems to me, is, rather, a commonsense inquiry as to whether or not it was voluntary, as to which I don't think you necessarily lose your case, but it seems to me that at least these have to be considered in determining whether or not it's voluntary.
04-373 +++$+++ 22687 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that's the second step of the analysis. The first step of the analysis, which is what this case is -- before the Court is, on initiation. Now, voluntariness --
04-373 +++$+++ 22688 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but I -- you can't initiate something involuntarily and have that count, can you? You say --
04-373 +++$+++ 22689 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our --
04-373 +++$+++ 22690 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- let's say involuntarily, in the lay sense of the word, in the common sense of the word, where it was actually physically coerced. That wouldn't count.
04-373 +++$+++ 22691 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be an involuntary statement under the second --
04-373 +++$+++ 22692 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right.
04-373 +++$+++ 22693 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- step of the analysis.
04-373 +++$+++ 22694 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but what about --
04-373 +++$+++ 22695 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, no, it's the --
04-373 +++$+++ 22696 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the first step?
04-373 +++$+++ 22697 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- first part of the analysis.
04-373 +++$+++ 22698 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the first part of the --
04-373 +++$+++ 22699 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How --
04-373 +++$+++ 22700 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- analysis, our --
04-373 +++$+++ 22701 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The first part of the analysis is whether or not he initiates.
04-373 +++$+++ 22702 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-373 +++$+++ 22703 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you're trying to tell us that the initiation can be involuntarily? I just don't -- I just don't agree with that.
04-373 +++$+++ 22704 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what we're trying to say is that the purpose of Edwards was to prevent badgering, where the police convey --
04-373 +++$+++ 22705 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. But suppose the police are twisting his arm behind his back until he initiates a further discussion. You would say that's fine?
04-373 +++$+++ 22706 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, you have to concede --
04-373 +++$+++ 22707 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if they're twisting their back, you're not thinking they're going to stop questioning. I mean, what you're looking --
04-373 +++$+++ 22708 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, you're --
04-373 +++$+++ 22709 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- at is, Did --
04-373 +++$+++ 22710 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Aren't you -- aren't you confusing Miranda, which is a question of comprehension followed by voluntary waiver, with the question of initiation? They are separate questions. And what our -- what we are trying to get at is: If there is going to be an initiation on the suspect's part, doesn't it have to be a voluntary initiation? Your answer consistently is, Did he know that questioning would stop? And those are two different issues. One is understanding Miranda warnings. One is voluntarily initiating a further conversation with the police. So, I don't see it -- let's assume he perfectly understood the Miranda warnings. But if the initiation was not a voluntary initiation, or an initiation at all, it seems to me you lose.
04-373 +++$+++ 22711 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Maryland's position is that if you look at the analysis in Elstad and Seibert, where what this Court said is, you don't look at whether something caused something else, you look at whether there was a cure in the sense that the suspect understood his rights --
04-373 +++$+++ 22712 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Ms. Graeff, is there any case which says that an initiation is not voluntary, as opposed to a confession being not voluntary, because the suspect has been charged with a crime greater than what the police believe they can prove, or if the police advise him that he's been charged with a greater crime than what he's really been charged with? Is there any case which says that the effect of that is to cause his initiation of discussion to be involuntary?
04-373 +++$+++ 22713 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not that I'm aware of.
04-373 +++$+++ 22714 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you take --
04-373 +++$+++ 22715 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I --
04-373 +++$+++ 22716 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the position that initiation is a purely formal inquiry, a matter of magic words? If he says the equivalent of, "I guess I'll talk to you," that's all you look at?
04-373 +++$+++ 22717 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What you look at as, in Seibert, is, Was he --
04-373 +++$+++ 22718 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but ask --
04-373 +++$+++ 22719 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- given a genuine choice?
04-373 +++$+++ 22720 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- answer my question. Is that all you look at?
04-373 +++$+++ 22721 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You look at whether he understood that the questioning was going to cease, and it was up to him --
04-373 +++$+++ 22722 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, you're --
04-373 +++$+++ 22723 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- whether to speak.
04-373 +++$+++ 22724 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- you're avoiding my question.
04-373 +++$+++ 22725 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry.
04-373 +++$+++ 22726 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ My question is, Is the act of initiation a purely formal act on your view, so that so long as the suspect says the magic words, it doesn't matter what is in his mind or what he understands? Is it formal or not formal?
04-373 +++$+++ 22727 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
04-373 +++$+++ 22728 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's not formal.
04-373 +++$+++ 22729 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What you need to look at is whether an objective person in the suspect's position would understand that questioning was going to cease, and there was -- would be no more questioning. Edwards --
04-373 +++$+++ 22730 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, can I interrupt with --
04-373 +++$+++ 22731 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I think we can --
04-373 +++$+++ 22732 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- with one --
04-373 +++$+++ 22733 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- I think that's a given. The question is whether or not he agrees -- he indicates affirmatively that he wants to begin talking.
04-373 +++$+++ 22734 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And here, there's no question he wanted to --
04-373 +++$+++ 22735 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's --
04-373 +++$+++ 22736 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- begin talking.
04-373 +++$+++ 22737 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the issue, it seems to me.
04-373 +++$+++ 22738 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And there's no question here that he wanted to begin talking.
04-373 +++$+++ 22739 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right, now suppose -- I don't understand all these legal terms here. Imagine. [Laughter.]
04-373 +++$+++ 22740 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It may be close to the truth. Now, we have a case, a hypothetical. The defendant is sitting there, the police say, "Question?" And he says, "I want to see my lawyer." And the policeman says the following, "That's fine, go ahead, we'll get him. By the way, if you see him, we'll execute you. Are you sure you don't want to talk to us?" That's plainly unlawful, isn't it?
04-373 +++$+++ 22741 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Involuntary. Under --
04-373 +++$+++ 22742 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Fine.
04-373 +++$+++ 22743 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the second step --
04-373 +++$+++ 22744 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now --
04-373 +++$+++ 22745 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of the --
04-373 +++$+++ 22746 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now --
04-373 +++$+++ 22747 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- analysis --
04-373 +++$+++ 22748 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now, the same thing happens, but what he says is, "You'd better talk to us, or you'll be executed. Think about it." Equally unlawful, right?
04-373 +++$+++ 22749 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be involuntary --
04-373 +++$+++ 22750 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
04-373 +++$+++ 22751 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- under the second --
04-373 +++$+++ 22752 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now, a minute --
04-373 +++$+++ 22753 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- test.
04-373 +++$+++ 22754 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- passes while he's thinking about it. Okay? Is it -- is it unlawful now, because a minute has passed before he says yes?
04-373 +++$+++ 22755 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would make it unlawful -- unvoluntary. But, again --
04-373 +++$+++ 22756 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I just --
04-373 +++$+++ 22757 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- with -- There's a two-step process.
04-373 +++$+++ 22758 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't -- I don't want legalism. I just want the conclusion. A minute has passed before he says yes. Has that changed everything, and it becomes lawful?
04-373 +++$+++ 22759 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
04-373 +++$+++ 22760 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. Now it's 15 minutes. Now it's 30 minutes. Okay? Now, a court says 30 minutes is the same as one minute, "We don't think the passage of 29 extra minutes made a difference." And what's your reply? Not in legalism. You're going to say, "Oh, no, the passage of 30 minutes, rather than 1 minute, makes all the difference." And I would like to know why.
04-373 +++$+++ 22761 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Actually, our position is more Detective Johns' actions rather than -- the passage of time was a factor, but the more significant --
04-373 +++$+++ 22762 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I --
04-373 +++$+++ 22763 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- thing here --
04-373 +++$+++ 22764 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, that's fine. I'm not -- I'm -- - I want you to say that kind of thing. You're saying it's not just 30 minutes, it's "also some other things happened." What?
04-373 +++$+++ 22765 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Significantly, Detective Johns' conduct and his words, when -- when Office Reese made the improper statement, Detective Johns immediately and firmly --
04-373 +++$+++ 22766 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The --
04-373 +++$+++ 22767 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- reprimanded --
04-373 +++$+++ 22768 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- improper statement was, "I bet you want to talk now, huh?"
04-373 +++$+++ 22769 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-373 +++$+++ 22770 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right? And --
04-373 +++$+++ 22771 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-373 +++$+++ 22772 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- immediately, the other detective, Johns -- immediately?
04-373 +++$+++ 22773 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Immediately --
04-373 +++$+++ 22774 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Said what?
04-373 +++$+++ 22775 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- immediately said, "No, he doesn't want to talk to us. He already asked for a lawyer. We cannot talk to him now" --
04-373 +++$+++ 22776 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, that's --
04-373 +++$+++ 22777 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and pushed him.
04-373 +++$+++ 22778 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- possible. That definitely cuts in your favor, unless, of course, it sounds like a good-cop/bad-cop routine. And --
04-373 +++$+++ 22779 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There was --
04-373 +++$+++ 22780 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- people --
04-373 +++$+++ 22781 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- there was no finding that this was a good-cop/bad-cop --
04-373 +++$+++ 22782 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
04-373 +++$+++ 22783 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- routine, was --
04-373 +++$+++ 22784 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In fact --
04-373 +++$+++ 22785 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In fact, there was a finding that Johns' testimony was credible.
04-373 +++$+++ 22786 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that Johns' testimony was credible, and that Johns did not intend this to happen.
04-373 +++$+++ 22787 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that's --
04-373 +++$+++ 22788 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This was --
04-373 +++$+++ 22789 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- subjectively true. And so, I'd simply wonder if the fact that it's subjectively true, and there is a finding that the defendant -- here, we have 30 minutes, and we have the fact that the other detective said, "He said he can't talk to us. We can't do anything about it." We have that. Is there anything else?
04-373 +++$+++ 22790 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We have that Detective Johns then pushed him out of the cell --
04-373 +++$+++ 22791 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-373 +++$+++ 22792 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and they left. So the police initiation was terminated. And --
04-373 +++$+++ 22793 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-373 +++$+++ 22794 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- then when Detective Johns came back, 28 minutes, he didn't say anything.
04-373 +++$+++ 22795 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-373 +++$+++ 22796 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He didn't ask any questions. And it was Blake who initiated and said, clearly, he wanted to talk to the police.
04-373 +++$+++ 22797 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. Right. So --
04-373 +++$+++ 22798 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask --
04-373 +++$+++ 22799 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- we have a passage --
04-373 +++$+++ 22800 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask you two rather elementary questions?
04-373 +++$+++ 22801 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-373 +++$+++ 22802 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ One of the issues is whether -- when he spoke and said, "Can I talk now?" -- was that voluntary or not? Who has the burden on whether it was, or not, voluntary, the State or the defendant, in your view?
04-373 +++$+++ 22803 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The state has the burden to show that he initiated.
04-373 +++$+++ 22804 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And so, the State did have the burden. And what is your view on the fact that the trial -- the judge who heard the evidence said they had not met the burden? What kind of deference is owing to that finding?
04-373 +++$+++ 22805 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We think none, because the trial court did not focus on the proper analysis. The trial court focused on a causal connection analysis that this Court has --
04-373 +++$+++ 22806 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I --
04-373 +++$+++ 22807 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- rejected in Seibert --
04-373 +++$+++ 22808 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I -- before we get to that, I read the trial court's opinion, and it didn't seem to me that it was playing, as Justice Breyer said, this game of legal words and labels. It was saying, "There are things to suspect here. Yes, I credited Detective Johns. But he was asked, 'Why did you bring along Reese? You didn't need him?'" And there was no answer to that. And there was also no explanation, after they left Blake in his cell, Reese just having said, "I bet you want to talk to us now, huh?" -- there was nothing said to assure Blake that that was not a "You'd better talk to us, or you're going to be in trouble" kind of thing. There was just the statement by Blake and another Miranda warning. All of those things, the judge said, weighed on his mind, and he reached the conclusion that the Government hadn't sustained its burden on the basis of those factors. So, is that clearly erroneous? I mean, don't we defer to the judge's findings?
04-373 +++$+++ 22809 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the inquiry is a -- clearly erroneous, yes. But our position is that whether or not there was initiation is a mixed question of fact and law, whether a reasonable person would understand the questioning was going to stop. And so, when you look at this reasonable-person analysis, you don't give deference to the findings of the lower court. And if I could reserve the rest of my time, if there are no more questions.
04-373 +++$+++ 22810 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Ms. Graeff. Mr. Feldman.
04-373 +++$+++ 22812 +++$+++ FALSE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: An improper question or comment under Edwards can be cured if the police terminate the questioning and make it clear to the suspect that they will honor his decision whether or not to talk to them --
04-373 +++$+++ 22813 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, tell us --
04-373 +++$+++ 22814 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- without counsel.
04-373 +++$+++ 22815 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- what factors, in your view, can be considered. The --
04-373 +++$+++ 22816 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think --
04-373 +++$+++ 22817 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The defendant's age? The improper charge? What else can be considered?
04-373 +++$+++ 22818 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think all of those things can be present in any Miranda case, and are taken care of in a normal Miranda analysis as to whether it was voluntary or not. The problem here is that the --
04-373 +++$+++ 22819 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but what we're trying to determine is, What do you consider in determining whether he has -- a reasonable person initiating --
04-373 +++$+++ 22820 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, and I --
04-373 +++$+++ 22821 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- further discussion?
04-373 +++$+++ 22822 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I think you could say that all of those voluntariness factors should be looked at, in terms of initiation, although I just think the analysis would be exactly the same as if you were asking whether he made a voluntary waiver, that it's the same voluntary -- voluntariness analysis. Now, in the --
04-373 +++$+++ 22823 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I'm not so sure, because a voluntary waiver is measured against a Miranda warning. And, by definition here, you don't have a Miranda warning, because we're asking about "whether initiation." So, it seems to me there's a threshold inquiry of voluntariness to determine whether or not there was a voluntary initiation, and that that -- it does not comprehend or require a Miranda warning. Otherwise, you're double counting.
04-373 +++$+++ 22824 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But you never -- there's never -- first of all, he had gotten a Miranda warning, initially; and that was when he said he wanted to see a lawyer. That was -- that had happened. Secondly, whenever there's an initiation case, you've never had another Miranda warning before the initiation. And what the police did here --
04-373 +++$+++ 22825 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I agree with that. But I want -- what I think the Court is trying to find is some explanation of the threshold test for determining whether or not there was a voluntary initiation. Now, I think we agree -- or at least I agree -- that there shouldn't be any Miranda warnings required. That doesn't go into the mix.
04-373 +++$+++ 22826 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
04-373 +++$+++ 22827 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Any new Miranda warning.
04-373 +++$+++ 22828 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, but I -- still, the -- there has been, already, an -- a Miranda warning.
04-373 +++$+++ 22829 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-373 +++$+++ 22830 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, still, the question should be broken down into two parts. The -- as the Court said, in Oregon against Bradshaw, you have to -- it's useful, at least, to separate the question of initiation, which is a more limited question, from the broader question of voluntariness of a waiver --
04-373 +++$+++ 22831 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, Mr. --
04-373 +++$+++ 22832 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- or voluntariness.
04-373 +++$+++ 22833 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- Feldman, do you agree that the State had the burden of proving voluntariness at the second stage?
04-373 +++$+++ 22834 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-373 +++$+++ 22835 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And why -- and why should we not credit the finding of fact by the -- by the trial judge --
04-373 +++$+++ 22836 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if the --
04-373 +++$+++ 22837 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- who found it was not voluntary?
04-373 +++$+++ 22838 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the middle-level -- what -- Maryland has --
04-373 +++$+++ 22839 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The middle level --
04-373 +++$+++ 22840 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- -- at the middle-level --
04-373 +++$+++ 22841 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- said there was no Edwards violation.
04-373 +++$+++ 22842 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-373 +++$+++ 22843 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, that doesn't contribute anything to the dialogue.
04-373 +++$+++ 22844 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the State has argued that actually, given the procedures in this case, the defendant waived his voluntariness claim. But, in any event, the State -- - the Maryland Court of Appeals --
04-373 +++$+++ 22845 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you just told me you agree that the burden was on the --
04-373 +++$+++ 22846 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. But --
04-373 +++$+++ 22847 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- State to prove voluntariness. But I still haven't heard your answer to why we should not credit the finding of fact by the trial judge.
04-373 +++$+++ 22848 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'd say -- well, two things. One is, the Maryland Court of Appeals itself explicitly -- specifically said that it did not --
04-373 +++$+++ 22849 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't care --
04-373 +++$+++ 22850 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- voluntariness.
04-373 +++$+++ 22851 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- what the Maryland Court of --
04-373 +++$+++ 22852 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not the midlevel --
04-373 +++$+++ 22853 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- Appeals said.
04-373 +++$+++ 22854 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- court, but the --
04-373 +++$+++ 22855 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The highest court in Maryland also credited the finding.
04-373 +++$+++ 22856 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, the -- I don't think so. The highest court in Maryland said, "We are not going to decide anything about voluntariness, we're only going to decide something about initiation."
04-373 +++$+++ 22857 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, in any event, we have a --
04-373 +++$+++ 22858 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
04-373 +++$+++ 22859 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- a finding of fact by the trial court before us, and I don't -- I still don't understand. From your point of view, why shouldn't we credit that?
04-373 +++$+++ 22860 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I don't think -- oh, because I don't -- the -- that court was relying on a -- on the -- on the -- on the question of initiation. What -- what that court was doing was saying, "We're going to do a kind of voluntariness-lite here and take all the facts that might suggest it's not voluntary, and count them, and say -- well, give -- those, plus whatever" --
04-373 +++$+++ 22861 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You disagree with the --
04-373 +++$+++ 22862 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- means it's not --
04-373 +++$+++ 22863 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- finding that -- the -- isn't it -- aren't we entitled to give a -- some presumption of validity?
04-373 +++$+++ 22864 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but -- well, I think that the trial -- what the trial court -- I think it -- no, I don't think so, because I think the trial court was not operating under the correct standard of what it was supposed to -- of what initiation consists of.
04-373 +++$+++ 22865 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Because it's a mixed question of law and fact --
04-373 +++$+++ 22866 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-373 +++$+++ 22867 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- and not a purely factual --
04-373 +++$+++ 22868 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-373 +++$+++ 22869 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- determination.
04-373 +++$+++ 22870 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-373 +++$+++ 22871 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If you're going to the standard, which is, I think, the -- actually, the difficult question here, what's wrong -- should you say -- what's wrong with saying -- which is what I was pursuing -- that, where there is a question that's improper, as there was here, by the police, the only real question is, Is a later initiation "the fruit"?
04-373 +++$+++ 22872 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-373 +++$+++ 22873 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you say the State has to show it wasn't the fruit. That would have the virtue of making the law quite consistent here, as it is with Fourth Amendment/Fifth Amendment cases. That's a well known concept.
04-373 +++$+++ 22874 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Court has consistently found, in the Miranda context, that that kind of broad "fruits analysis" doesn't apply in Elstad and --
04-373 +++$+++ 22875 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why not?
04-373 +++$+++ 22876 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- other cases.
04-373 +++$+++ 22877 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why -- I understand that --
04-373 +++$+++ 22878 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because --
04-373 +++$+++ 22879 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- there's a lot of language --
04-373 +++$+++ 22880 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the -- the point of the fruits analysis is -- has to do with the deterrence function of the Fourth Amendment, which is nonexistent, or much, much reduced, in the Fifth Amendment context, and --
04-373 +++$+++ 22881 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but the standard fruit analysis is when you get something like a statement, and that statement then leads to further evidence. We're not -- I mean, Justice Breyer wasn't using the fruits analysis in that sense. He was -- he was getting at the -- at the same question we're all trying to get at: Was the later so-called initiation the product of the improper police comment in the first place, or was it voluntary?
04-373 +++$+++ 22882 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I think the Edwards rule is an important, but limited, rule. And the point of the Edwards rule is to address the particular problem that's caused by a question. It's not intended to address all of the other problems that can arise in connection with voluntary --
04-373 +++$+++ 22883 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, I realize that. But you concede -- I think you concede that the -- that the so-called initiation has got to be a voluntary initiation. You don't take the position that it's merely magic words. Isn't that correct?
04-373 +++$+++ 22884 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-373 +++$+++ 22885 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. If that is correct, why do we not give some deference to the conclusion of the trial court that this was not voluntary?
04-373 +++$+++ 22886 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
04-373 +++$+++ 22887 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You say there was a legal error. What exactly was the legal error?
04-373 +++$+++ 22888 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The problem was that the trial court was not looking at all the factors that you would normally look at to decide voluntariness. It thought that, in looking at --
04-373 +++$+++ 22889 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What did it --
04-373 +++$+++ 22890 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- initiation --
04-373 +++$+++ 22891 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- overlook? What did it overlook?
04-373 +++$+++ 22892 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It overlooked the fact that he had been given the Miranda warnings, that, as far as anybody --
04-373 +++$+++ 22893 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's always true in every Edwards case.
04-373 +++$+++ 22894 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Well, it's --
04-373 +++$+++ 22895 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. So --
04-373 +++$+++ 22896 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- so that's the case.
04-373 +++$+++ 22897 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that's a wash.
04-373 +++$+++ 22898 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It overlooked --
04-373 +++$+++ 22899 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What else did --
04-373 +++$+++ 22900 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the fact that --
04-373 +++$+++ 22901 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- it miss?
04-373 +++$+++ 22902 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- he knew that he had the right to remain silent, and that the particular problem that had been caused by the question --
04-373 +++$+++ 22903 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, Mr. Feldman --
04-373 +++$+++ 22904 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- which was --
04-373 +++$+++ 22905 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- I have to interrupt. They did not overlook that he had been given the Miranda warning. She expressly commented on the fact that an hour and 17 minutes had lapsed since that time.
04-373 +++$+++ 22906 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. She didn't overlook the fact. She knew what the facts were. But she overlooked the significance of that in the analysis. But, more importantly, she overlooked the significance of the fact that the defendant, at the time that he decided, a half hour later, that he wanted to talk to the police, the police had terminated the earlier questioning and had made it clear to him that they were going to honor his decision whether or not to talk to them without counsel present. And --
04-373 +++$+++ 22907 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, how --
04-373 +++$+++ 22908 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- those are --
04-373 +++$+++ 22909 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- was it that she --
04-373 +++$+++ 22910 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- extremely --
04-373 +++$+++ 22911 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- overlooked that? I just don't get it.
04-373 +++$+++ 22912 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We --
04-373 +++$+++ 22913 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They --
04-373 +++$+++ 22914 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We -- well --
04-373 +++$+++ 22915 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You know, the evidence is undisputed that one officer made the statement, another officer said no, they left, 30 minutes went by. What exactly did she overlook?
04-373 +++$+++ 22916 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- she did -- what -- she did not give the proper weight to those facts, which, in a proper involuntariness analysis, are ones that are important.
04-373 +++$+++ 22917 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're saying that those facts could not reasonably be found to be -- to produce a situation in which the defendant believed he would be hounded to talk, so he said, "What the heck, I'll talk."
04-373 +++$+++ 22918 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-373 +++$+++ 22919 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which is what Edwards is directing.
04-373 +++$+++ 22920 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. And that Edwards was designed to support --
04-373 +++$+++ 22921 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That no factfinder -- and this is mixed fact and law -- could reasonably come to that conclusion.
04-373 +++$+++ 22922 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That --
04-373 +++$+++ 22923 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ When it -- when one of the -- the last he had heard from the officers was, "No, he doesn't want to talk. He already asked for a lawyer. We cannot talk to him now."
04-373 +++$+++ 22924 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Coupled --
04-373 +++$+++ 22925 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're saying no reasonable judge could find that that defendant thought he would be hounded.
04-373 +++$+++ 22926 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. And the concern of Edwards -- as the court has repeatedly explained, the concern of Edwards is that the court -- that the police will wear down or badger the defendant. But once there's -- if there's been a --
04-373 +++$+++ 22927 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it doesn't count --
04-373 +++$+++ 22928 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- single comment, as can happen --
04-373 +++$+++ 22929 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Feldman, it doesn't count as badgering, or the equivalent, that the police -- the -- walk in, and they present not only the charges, but they present the application for the charges, which shows that the co-perpetrator had talked to the police, talked his head off, and put all the blame, at every step on the way, on this defendant? That did weigh heavily in the trial judge's mind.
04-373 +++$+++ 22930 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
04-373 +++$+++ 22931 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And is -- was that improper to take into account? How would a reasonable person in this situation feel?" Would he feel that he was impelled to speak, because the co-perpetrator had --
04-373 +++$+++ 22932 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- I mean, there's two points I'd like to make about that. One is, as far as I know under Maryland practice, what they did is consistent with Maryland practice as part of what's normally attendant on taking somebody into custody. And it's -- and it doesn't count as questioning, under Miranda. And it's a -- it's a different problem. And, secondly, that issue of handing him that charging document -- which I think is probably a sound practice, because it lets the defendant know what he's charged with -- that practice is one that can happen and can have its influence on a defendant's decision whether or to talk, in any case, and should be considered in a general involuntariness analysis. But it's not a decisive factor in this case, and it doesn't have to do with the particular concerns of Edwards.
04-373 +++$+++ 22933 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It has nothing to do with whether the defendant thinks he is going to be hounded.
04-373 +++$+++ 22934 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's --
04-373 +++$+++ 22935 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It has --
04-373 +++$+++ 22936 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- correct.
04-373 +++$+++ 22937 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- to do with --
04-373 +++$+++ 22938 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-373 +++$+++ 22939 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- with whether --
04-373 +++$+++ 22940 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-373 +++$+++ 22941 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the defendant thinks he will be badgered and badgered until he finally talks.
04-373 +++$+++ 22942 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. They're all --
04-373 +++$+++ 22943 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which is what Edwards is directed at.
04-373 +++$+++ 22944 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. They're already under --
04-373 +++$+++ 22945 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, Edwards is directed at avoiding badgering, but the issue before us is initiation. That's not a question of badgering, it's a question of initiation. And don't the points that Justice Ginsburg raised go to whether the initiation is likely to have been a voluntary initiation?
04-373 +++$+++ 22946 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think they do, because, under the Court's decision in Bradshaw, there's initiation, and then there's always a separate voluntariness inquiry to take care of those problems. Thank you.
04-373 +++$+++ 22947 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Feldman. Mr. Ravenell.
04-373 +++$+++ 22949 +++$+++ FALSE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, may it please the Court: It is our position that to allow so-called curative measures would lead to police abuses. If curative measures are allowed, intentional coercive violations should never be allowed to be cured.
04-373 +++$+++ 22950 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What if it --
04-373 +++$+++ 22951 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In fact --
04-373 +++$+++ 22952 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What if, instead of the half hour or so, 24 hours had passed and they got a call from the defendant, said, "I want to talk now"? Still, is that -- is that initiation on his part?
04-373 +++$+++ 22953 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that if there had been 24 hours that had passed, then you would -- it would be a factor that you would consider in deciding whether the defendant has initiated the conversation.
04-373 +++$+++ 22954 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay. So --
04-373 +++$+++ 22955 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Of course, that factor --
04-373 +++$+++ 22956 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- if you can --
04-373 +++$+++ 22957 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- can work the other way. You would be up here, saying, "Oh, he had 24 hours. He thought he was going to get the death penalty. He knew the other man was turning on him to implicate him in the murder. His agony was increasing." I mean, I -- it seems to me the question is whether or not the curative measures were adequate.
04-373 +++$+++ 22958 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
04-373 +++$+++ 22959 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Of course, you know, we can play the game -- 5 minutes, 20 minutes --
04-373 +++$+++ 22960 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-373 +++$+++ 22961 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- 30 minutes. We know that. But, it seems to me, when 30 minutes passed here, there were curative measures. Now, you say, at the outset, there can never be a -- curative measures. That -- I don't think you have anything to -- any support for that in the case law.
04-373 +++$+++ 22962 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I certainly believe that the support is, in Edwards versus Arizona, that there should not be a cure unless the defendant himself initiates the contact.
04-373 +++$+++ 22963 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ A cure --
04-373 +++$+++ 22964 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So, I think there is.
04-373 +++$+++ 22965 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ A cure of --
04-373 +++$+++ 22966 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And if there is --
04-373 +++$+++ 22967 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I would have thought --
04-373 +++$+++ 22968 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Sorry, go on.
04-373 +++$+++ 22969 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure.
04-373 +++$+++ 22970 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I would have thought you would have said, then, 24 hours doesn't make a difference. If there can never be a cure, if there's a violation because the question from Reese constitutes interrogation, and you're telling us there's no cure, it doesn't matter how long it is.
04-373 +++$+++ 22971 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I think what I'm -- with all due respect, I think what I'm telling the Court is that the practice should be, as it has been the last 25 years, that you do not allow cures of Edwards versus Arizona by the police intentionally violating one's rights and then attempting to cure it. But, if this Court finds that there can be a cure, we want to participate in what would be a proper cure.
04-373 +++$+++ 22972 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ A cure of what? That's what --
04-373 +++$+++ 22973 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of a violation.
04-373 +++$+++ 22974 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- it seems to me, a lot of this discussion has come down to. What are you curing? Are you curing involuntariness of the confession, or are you curing the police badgering? I thought that we were just trying to cure the badgering and then let the voluntariness of the confession be decided as voluntariness is normally decided, for which purpose you would take into account that he's been -- erroneously said he was charged with murder, or whatever.
04-373 +++$+++ 22975 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I disagree with Your Honor on -- for two reasons. First, I think that, as several members have -- certainly have said so far, that we should focus on whether there was a voluntary initiation. That has to be considered. Secondly, I've heard mentioned several times that Edwards only deals with badgering. I commit -- commend this Court to Illinois -- Smith versus Illinois -- and Minnick versus Mississippi, where this Court has said that Edwards is not only about badgering, but the Court said it's about overreaching by the police, whether it's explicit or subtle. So, it's not badgering, only. And when the Petitioner says that Edwards is only about badgering, this Court has said that it's about more than badgering. It is whether there is overreaching by the police officers that is subtle, that is intentional, that is in deliberate -- that is deliberate, any overreaching --
04-373 +++$+++ 22976 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-373 +++$+++ 22977 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that causes --
04-373 +++$+++ 22978 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, assuming --
04-373 +++$+++ 22979 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the person --
04-373 +++$+++ 22980 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- there was --
04-373 +++$+++ 22981 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to give up his rights.
04-373 +++$+++ 22982 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- assuming there was overreaching on the part of Officer Reese, my question is, Is there any circumstance in which that overreaching can be cured? And I thought your answer is that, yes, that with the sufficient passage of time, it can be cured.
04-373 +++$+++ 22983 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, with all due respect, Your Honor, that was not my answer. My answer is that -- and I will tell Your Honor that I will not change that position -- it should never be allowed to be cured.
04-373 +++$+++ 22984 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, once Officer --
04-373 +++$+++ 22985 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-373 +++$+++ 22986 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- once Officer Reese made his comment, there was no circumstance, even a week, a month -- relatives come in and say, "We think you ought to talk," no intervening circumstance -- once there is that one sentence of overreaching, he can never initiate contact -- discussion with --
04-373 +++$+++ 22987 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The better --
04-373 +++$+++ 22988 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- the police.
04-373 +++$+++ 22989 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In my opinion, the better policy, the better practice, is that there should not be. Now --
04-373 +++$+++ 22990 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You're not helping --
04-373 +++$+++ 22991 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- if the --
04-373 +++$+++ 22992 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- defendants, you know.
04-373 +++$+++ 22993 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- if I --
04-373 +++$+++ 22994 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In some cases, you are not helping defendants.
04-373 +++$+++ 22995 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-373 +++$+++ 22996 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Sometimes, a defendant, after he talks to his relatives, might conclude, "Boy, you know, I'd better cooperate with the police and get a lesser sentence." But you're saying that can't happen. Once --
04-373 +++$+++ 22997 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In my --
04-373 +++$+++ 22998 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- once the police make a misstatement, he can never come forward and say, "I want to confess."
04-373 +++$+++ 22999 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In my 20 years of trial practice, I have never found it to be at the defendant's best interest to communicate with the police without counsel. I have --
04-373 +++$+++ 23000 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Ravenell --
04-373 +++$+++ 23001 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- never found it to be --
04-373 +++$+++ 23002 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- you are defending a judgment that no court in Maryland, as far as I know, ever made. All of the courts thought that the law was, yes, the taint of an improper question by the police can be removed.
04-373 +++$+++ 23003 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-373 +++$+++ 23004 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, let's take the case as it comes to us.
04-373 +++$+++ 23005 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure.
04-373 +++$+++ 23006 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The taint can be removed. That is the law.
04-373 +++$+++ 23007 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-373 +++$+++ 23008 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Accepting that to be the law, what, in your judgment, would it take to remove the taint? -- the taint here being the statement that Office Reese made.
04-373 +++$+++ 23009 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'll be happy to participate in that conversation. And this is how we believe that taint can be cured, if at all. Number one, you put the suspect back in the position that he was in before the violation occurred. How do you do that? This is a violation of a right to counsel. Not a right to remain silent; a right to counsel. The suspect asked for counsel. The best way to cure it is, give him counsel. How else do you cure it? You tell him that he no longer -- "We were wrong when we told you, you face the death penalty."
04-373 +++$+++ 23010 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Suppose --
04-373 +++$+++ 23011 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ "You do not face the death penalty."
04-373 +++$+++ 23012 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- suppose, again, we do not accept that position. You need another fallback position in our -- in order to argue the case before us.
04-373 +++$+++ 23013 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't agree that I need another fallback position, because I believe that if the Court finds that right to counsel -- giving him counsel is not enough, other things I'm about to tell the Court, I think, will also be a factor. For example, telling the defendant that he, in fact, does not face the death penalty. Very interestingly, this Court -- and the Seibert case, in fact, Justice Kennedy's opinion, said that one of the things you consider is, when there is a violation of the right to Miranda rights, you tell the suspect, "That was an improper violation of your right. That statement may not be admissible" --
04-373 +++$+++ 23014 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, Johns --
04-373 +++$+++ 23015 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- "against you."
04-373 +++$+++ 23016 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- Johns, in effect, did that here.
04-373 +++$+++ 23017 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We disagree.
04-373 +++$+++ 23018 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Certainly, one of the best curative devices is immediate correction from a superior. And that is exactly what happened here.
04-373 +++$+++ 23019 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Interestingly, what Your Honor said in the Seibert case is that when -- and, in fact, the plurality opinion -- when you give an alleged cure in the midst of the violation, the defendant misses it. So, giving this alleged cure in the midst of the violation creates the problem. What you need to do is --
04-373 +++$+++ 23020 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, you think you'd have a stronger case if Johns hadn't corrected Reese?
04-373 +++$+++ 23021 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that -- I think --
04-373 +++$+++ 23022 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's --
04-373 +++$+++ 23023 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- what we would have --
04-373 +++$+++ 23024 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But --
04-373 +++$+++ 23025 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- is a stronger --
04-373 +++$+++ 23026 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- that's a --
04-373 +++$+++ 23027 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- case.
04-373 +++$+++ 23028 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- far stretch. It's --
04-373 +++$+++ 23029 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I think the case would be proper if Johns did certain things. One is, give him counsel. Now, I understand the Court says, "Maybe we won't go that far." But, if you're not going to give him counsel, what else can you do? You can certainly tell him that the comment by Officer Reese was improper, "We will honor your right to an attorney. What Officer Reese said was wrong." As we point out in our brief, there was never a time when Detective Johns spoke to Blake directly and made any efforts to clarify, or even resolve, the alleged -- the violation. In fact, Detective --
04-373 +++$+++ 23030 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well --
04-373 +++$+++ 23031 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Johns --
04-373 +++$+++ 23032 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, you don't want the --
04-373 +++$+++ 23033 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- says --
04-373 +++$+++ 23034 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- you don't want the officer talking to Blake directly. I thought that would be another violation.
04-373 +++$+++ 23035 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. No. Now that there is a violation, you have to cure it. You have to cure it. And the only way to cure it is for someone to speak to him.
04-373 +++$+++ 23036 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But it seems --
04-373 +++$+++ 23037 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ One of the things --
04-373 +++$+++ 23038 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- to me that it's a bit much to say that the problem is that the -- he didn't talk to Blake directly, because that gets into another extended dialogue with the defendant that the defendant has not initiated. It seems it's much better, in the defendant's presence, to do what Johns did here, which is to rebuke Reese for the interrogation.
04-373 +++$+++ 23039 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With all due respect, I couldn't disagree more, because I think what has to be is that there has to be a direct comment to the suspect so that the suspect understands that this violation occurred, "It was a violation of your right, and we, the police, will not countenance what Reese did. And here is what we will do. We will get you counsel, if you wish to have counsel. You are not facing the death penalty, young 17-year-old sitting in a cell in your underwear. That is not correct. Here is what we can do for you. We will" -- in fact, as this Court suggests in the plurality opinion and Seibert, you change location. You change the interrogator. You give him time. As this Court said -- in fact, Justice Scalia's -- maybe dicta in McNeil said -- you look at a lapse of time. You consider that there is a break in time. All of those factors may be -- if all of those things were done, then you could become -- begin to move closer to putting Blake back in the position --
04-373 +++$+++ 23040 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well --
04-373 +++$+++ 23041 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that he was in before.
04-373 +++$+++ 23042 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- what about just simple thing like this, that there is an implication in what Reese said, that he listens to in his cell, "I guess you'd -- he'll want to talk to us now, huh?" The implication is that he faces death, and he'll be better off by talking to them without a lawyer.
04-373 +++$+++ 23043 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
04-373 +++$+++ 23044 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, suppose Johns had said to the defendant, "Mr. Blake, I want to tell you something. My colleague here has implied that you will be better off, because of the death possibility, in talking to us without a lawyer. We want to tell you, that isn't true. There is no way that you'll be better off talking to us without a lawyer. You will be at least equally, from your point of view, as well off if you talk to a lawyer." Now, that might have cured it, I guess.
04-373 +++$+++ 23045 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that if that was done, then we are moving in the right direction. But -- [Laughter.]
04-373 +++$+++ 23046 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The right direction would be to say, "Please don't talk to us."
04-373 +++$+++ 23047 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The right direction would be -- [Laughter.]
04-373 +++$+++ 23048 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would -- I would -- as Mr. Blake's attorney, I would have appreciated that. [Laughter.]
04-373 +++$+++ 23049 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Now, I will tell the Court that I believe that when you add those factors, you really do get closer to curing what we think should not be cured. Several things this Court said earlier -- and I think is correct, from some of the members of the Court -- is that we have to give deference to the trial court's finding. The Government would have you pay no attention to the trial court's finding when the trial court heard Officer Reese -- in fact, heard Officer Reese sit on the witness stand and lie under oath -- the court found that Officer Reese was not worthy of belief. Not only did he violate Mr. Blake's right, he then sat on the witness stand and lied about it. Now, do we want to encourage that kind of police abuse, where the police will abuse the rights of someone, then sit on the witness stand and lie, and then we say -- well, the trial judge, who had a chance to observe the demeanor, to watch the witnesses, trial judge, Judge North, who is actually present here, and who had a chance to observe each witness testify --
04-373 +++$+++ 23050 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Counsel, there's no dispute about the historical facts found by the judge. Everybody agrees this is the dialogue that took place, this is the time that it took place.
04-373 +++$+++ 23051 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-373 +++$+++ 23052 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Those are factual questions. It's a very different question of what the significance of that is under the Edwards initiation rule. So, it's not an issue of deference to the trial-court judge. We know what the facts are. We're deferring to those findings of fact. It's a question of what the legal significance is.
04-373 +++$+++ 23053 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And what the Chief Justice says was true in Bradshaw and in Edwards and in Elstad.
04-373 +++$+++ 23054 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I will ask --
04-373 +++$+++ 23055 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All questions, which were mixed questions of law and fact, where this Court took the words, took the facts, and made a rule. And that's this case.
04-373 +++$+++ 23056 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I will direct the Court to two cases, Salve Regina College versus Russell, 499 U.S. 225, where this Court said the following, "Deferential review of mixed facts -- mixed questions of law and fact is warranted where it appears that the District Court is better positioned than the appellate court to decide the issue in question, or that probing appellate scrutiny is -- will not contribute to the clarity of legal doctrine." The Court further said, in Miller versus --
04-373 +++$+++ 23057 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, just to -- stop there. Why is the trial court better suited to apply the Edwards rule to a set of facts that we would -- we accept based on deference to the factfinder?
04-373 +++$+++ 23058 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I find that interesting, Your Honor, because the Court did the same thing Elstad. This Court, in fact, gave every deference to the trial court's finding in Elstad. So, there's absolutely no reason why this Court would not give the same deferential treatment to Judge North's decision, when Judge North, just as the trial judge in Elstad, got a chance to observe the witnesses who testified, and found that that violation of Elstad's right was not intentional, that it was, kind of, a good-faith violation. That had an impact. And, in fact, in Seibert, the Court again made reference to that, and, in Justice O'Connor's dissent, made reference to that. So, it is clear that this Court has given deference -- clear deference, on every the -- one of the cases I've mentioned in the past, to a trial court's finding.
04-373 +++$+++ 23059 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, are you --
04-373 +++$+++ 23060 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is no reason --
04-373 +++$+++ 23061 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- arguing that --
04-373 +++$+++ 23062 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to be different here.
04-373 +++$+++ 23063 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- are you arguing that trial court, even though there's agreement -- understanding on most of the historical facts, is still in a better position to make the judgment call as to whether it was voluntary or not?
04-373 +++$+++ 23064 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I am. And I will point the Court to Miller versus Fenton, 478 U.S. 104, where this Court said, "Equally clear, an issue does not lose its factual character merely because its resolution is dispositive of the ultimate constitutional question." This Court has made clear that you give deference to the trial judge's findings, even if it may have an impact on the ultimate resolution, even where it is a mixed question of fact and law. And that's all we ask for in this case. I believe, Your Honor, that when we consider that -- in this particular matter, the evidence is clear that Mr. Blake was responding to the comments by Office Reese. And the trial court made that finding. The trial court made a finding that Office Reese's comment was intended to elicit a response. Same thing this Court has said in Innis. When you get to the next step, the question is, What that interrogation? The trial court made a factual finding it was interrogation. In fact, Petitioner concedes it was interrogation. Next step was, Was it a response, or was it new initiation of a new conversation, by Blake? The trial court found that it was a response by Mr. Blake to the comments by Officer Reese. The trial court also made a finding that there, in fact, was no cure. That factual finding was given deference by the Court of Appeals. The Court of Appeals considered several things. It said you should consider the attenuation. This Court said you should consider change in interrogation, location of interrogation -- change in the interrogator -- excuse me -- change in the location. And I believe that we add the fact that there would have been no further advice to the -- to the suspect that he did not face the death penalty. Parties agree here. In fact, in the SG's, Solicitor General's, brief, on page 25, they say, "If there has been any intentional coercive violation, there should be not be a cure." The trial court found that the act of Office Johns was intentional. I don't think anyone -- anyone, even under -- in -- under any standard of review -- could find that Officer John -- Officer Reese's -- excuse me -- comment was not intentional.
04-373 +++$+++ 23065 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What was the quote from the SG's brief? I didn't --
04-373 +++$+++ 23066 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Page 25.
04-373 +++$+++ 23067 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And what did they say?
04-373 +++$+++ 23068 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If I may --
04-373 +++$+++ 23069 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Maybe they said that. I'd be surprised if they said that.
04-373 +++$+++ 23070 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would be happy to read on -- "Police officers who engage in interrogation" --
04-373 +++$+++ 23071 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can you tell us --
04-373 +++$+++ 23072 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
04-373 +++$+++ 23073 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- where you're reading from?
04-373 +++$+++ 23074 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. Page 25 of the SG's brief. I'm reading. "Police officers who engage in interrogation after a suspect has invoked his right to counsel also run the risk of a judicial finding that any statement given was coerced," as we have here. If I may continue, "In that event, the initial statement would be unusable for any purpose" --
04-373 +++$+++ 23075 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, if there was a judicial finding that any statement given was --
04-373 +++$+++ 23076 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Which is --
04-373 +++$+++ 23077 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- coerced.
04-373 +++$+++ 23078 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Which is what we have in the trial-court finding, that there is -- and, in fact, it was coerced. The trial judge made a finding that this was an intentionally coercive act by Officer Reese.
04-373 +++$+++ 23079 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ We're talking about the confession being coerced, that the statement given was coerced --
04-373 +++$+++ 23080 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-373 +++$+++ 23081 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- not that his decision to talk to the police was coerced.
04-373 +++$+++ 23082 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I disagree that if there, in fact, was an initial -- if there was, in fact, coercion by the police, that that coercion did not play a part in Mr. Reese -- Mr. Blake deciding to speak.
04-373 +++$+++ 23083 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, we're --
04-373 +++$+++ 23084 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And, in fact --
04-373 +++$+++ 23085 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- only talking --
04-373 +++$+++ 23086 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in State --
04-373 +++$+++ 23087 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- about what the SG has conceded.
04-373 +++$+++ 23088 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-373 +++$+++ 23089 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ He has conceded that if the -- if it is found by the court that the statement given was a --
04-373 +++$+++ 23090 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-373 +++$+++ 23091 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- coerced statement, in that event, it would be unusable for any purpose.
04-373 +++$+++ 23092 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right. I understand.
04-373 +++$+++ 23093 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And the -- and the Court of Appeals of Maryland said, "We're going to look at this in the legal sense, not the dictionary sense."
04-373 +++$+++ 23094 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-373 +++$+++ 23095 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And that's what we're reviewing here.
04-373 +++$+++ 23096 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I think that when we review that in a mixed question of fact or law, giving all deference to the trial court's finding, as this Court has in the past in the cases I've cited, that, in fact, there is -- was a violation, the violation was not cured, and that, even if this Court establishes curative measures, those measures must be designed to put the suspect back in the position that he was in prior to the police violation of his rights. We think that it is a dangerous path to go down to allow the police to abuse a suspect's rights, and then cure it. One of the things I believe we learned from what occurred in Elstad and then in Seibert is that -- and, in fact, in the plurality opinion in Seibert, this Court pointed out that after Elstad, some 20-something years, the police created policies and strategies designed to violate what -- the first question first. And, in fact, the plurality opinion pointed out that not only did the police create that strategy, what the police, in fact, started doing was omitting Miranda altogether. And this Court made reference to that in U.S. versus Harris, that what the police will do, if you give them the opportunity, they will abuse the rights and attempt to cure --
04-373 +++$+++ 23097 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but if you're looking -- if you're taking your standard seriously --
04-373 +++$+++ 23098 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-373 +++$+++ 23099 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The reason that my -- I was able to give my hypothetical before --
04-373 +++$+++ 23100 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure.
04-373 +++$+++ 23101 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- the reason that you'd have to say, "You will not be better off -- you will not be worse off in respect to the death penalty, by -- you know, we -- it won't" --
04-373 +++$+++ 23102 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-373 +++$+++ 23103 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- "make you any better off to talk to the lawyer" -- Sorry. Strike. The reason that the policeman, to cure, would have to say, "Look, it's not going to help you, in respect to the death penalty, to talk without your lawyer," is because that was the implication of his question, that was the implication -- -
04-373 +++$+++ 23104 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-373 +++$+++ 23105 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- of the wrongful statement.
04-373 +++$+++ 23106 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly.
04-373 +++$+++ 23107 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The implication was, "You're not going to get death if you talk to us without a lawyer."
04-373 +++$+++ 23108 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-373 +++$+++ 23109 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But if it had been some other questions, some questions, for example, about the crime, all you would have had to do was eliminate whatever negative implication came out of those questions, which might have been nothing.
04-373 +++$+++ 23110 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-373 +++$+++ 23111 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So timely --
04-373 +++$+++ 23112 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But there is no finding to support the suggestion that it was just the death penalty that concerned him. He was also concerned, I thought, about the fact that his accomplice, Tolbert, had implicated him, and --
04-373 +++$+++ 23113 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-373 +++$+++ 23114 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- presumably implicated him --
04-373 +++$+++ 23115 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-373 +++$+++ 23116 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-373 +++$+++ 23117 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- too far. So is --
04-373 +++$+++ 23118 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And the trial --
04-373 +++$+++ 23119 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There's just no finding that it was simply the death penalty that --
04-373 +++$+++ 23120 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree. And the trial court made clear that she was considering everything. But what's important is that the trial court got a chance to hear Mr. Blake testify. The trial court --
04-373 +++$+++ 23121 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And --
04-373 +++$+++ 23122 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- understood --
04-373 +++$+++ 23123 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- his concern with Tolbert was a wholly legitimate reason for him to want to talk to the police and --
04-373 +++$+++ 23124 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-373 +++$+++ 23125 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- get things straightened away right away.
04-373 +++$+++ 23126 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do not dispute that at all. But what is important is that the trial judge got a chance to assess all of those factors, and the trial judge, even after assessing those factors, concluded that what impacted -- that there was still a great impact on him. And it is the Government's burden --
04-373 +++$+++ 23127 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right, so --
04-373 +++$+++ 23128 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- it was their burden --
04-373 +++$+++ 23129 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- maybe you should modify the standard. Maybe the standard ought to be that where you have an improper line of questioning, after the warning, that the police either have to negative the implication of those questions, the relevant implication, or the State has to show that some other series of independent events, such as Justice Kennedy mentioned, made the difference. That is, caused the later request to talk without a lawyer. And if they can't show the one or the other, then they lose.
04-373 +++$+++ 23130 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. And that is what the trial judge did in this case. The trial judge considered those factors. And that is what -- we leave it to the judges --
04-373 +++$+++ 23131 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I interrupt --
04-373 +++$+++ 23132 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to do.
04-373 +++$+++ 23133 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- you with a -- with a question?
04-373 +++$+++ 23134 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-373 +++$+++ 23135 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You seem to have taken the position that the State cannot cure an Edwards violation, which seems to me quite different from the trial court's ruling, because the trial court made a number of factual statements that seem to me to be saying, "Had these things been done, the violation might have been a -- cured." She referred to the fact he was still undressed, still in a cold cell, that his parent -- there was no parent present. He was scared, and -- he was scared and thought he was facing death. Now, it seems to me the logical inference from the trial judge's statement is, "Had each of those things been different, I might have found a cure."
04-373 +++$+++ 23136 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-373 +++$+++ 23137 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And, otherwise, why should -- why would she go through these ventures?
04-373 +++$+++ 23138 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree, Your Honor, that the trial court considered that there can be a cure. And, in fact, the Court of Appeals of Maryland said there --
04-373 +++$+++ 23139 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, that --
04-373 +++$+++ 23140 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- can be a cure.
04-373 +++$+++ 23141 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- it doesn't seem to me -- for you to prevail, you have to take the extreme position that there can never be a cure.
04-373 +++$+++ 23142 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. And that's why I think I -- I hope I've made --
04-373 +++$+++ 23143 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And when the trial judge --
04-373 +++$+++ 23144 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- it clear that --
04-373 +++$+++ 23145 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- said they did not cure because they didn't do any of A, B --
04-373 +++$+++ 23146 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-373 +++$+++ 23147 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- C, D, E, or F.
04-373 +++$+++ 23148 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree that I do not need this Court to find that Edwards versus Arizona remains untouched for me to win. We do not need that, because, when you consider what the trial court's finding was, and the deference that was given to by the Court of Appeals, we win, as well. What I am trying to say is that I think the better practice is that we do not allow the police to go down this line of starting to abuse rights, and then curing them. But I'd just --
04-373 +++$+++ 23149 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it seems to --
04-373 +++$+++ 23150 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't -- I don't need that to win.
04-373 +++$+++ 23151 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- it really seems to me you're adopting quite an extreme position, because it does seem to me perfectly obvious if, for example, they got a lawyer or brought his parents in, and they talked it over for 20 minutes and said, "We think he ought to do it." --
04-373 +++$+++ 23152 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-373 +++$+++ 23153 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- you could -- you could surely cure it in some fairness.
04-373 +++$+++ 23154 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I certainly believe that, from the teachings of Seibert and from other cases, that this Court clearly seemed to be leaning towards cure, that there can be cures. I know that the position on Edwards versus Arizona remaining intact is probably, in many ways, not where this Court is leaning. I understand that. But I certainly also understand we don't need to get to that extreme position to win, because the facts in this case are so clearly in our favor from the trial court's finding that giving it the -- any deference --
04-373 +++$+++ 23155 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Ravenell --
04-373 +++$+++ 23156 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-373 +++$+++ 23157 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- let me tell you the problem -- the problem I have in the case --
04-373 +++$+++ 23158 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure.
04-373 +++$+++ 23159 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- and with your reliance on the trial court's findings. I do not see how the fact that he's -- he's there in the cell in his underwear, the fact that he's 17, the fact that he thinks, and has been led to believe, erroneously, that there's a death penalty in the offing, has anything to do with the question that Edwards asks, which is whether the police, or this individual, initiated the conversation.
04-373 +++$+++ 23160 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that the problem is --
04-373 +++$+++ 23161 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That is the issue in these cases --
04-373 +++$+++ 23162 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the problem --
04-373 +++$+++ 23163 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- whether the police initiated the conversation that produced the confession.
04-373 +++$+++ 23164 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I think that all those things are factors that the Court can consider in deciding whether Blake voluntarily initiated the contact.
04-373 +++$+++ 23165 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, I don't think so. I think they go to whether the confession he gave was voluntary, but I don't see how they have anything to do with whether he initiated the conversation.
04-373 +++$+++ 23166 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, with all due respect, this Court, in Elstad and in Seibert, said that psychological pressures, which are very similar to the fruits analysis, can be considered on whether there's a Fifth Amendment violation.
04-373 +++$+++ 23167 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I --
04-373 +++$+++ 23168 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In fact --
04-373 +++$+++ 23169 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- I think -- tell me if I'm wrong about this particular record. I thought that the trial judge put it rather simply. He said, "There was an interrogation by a police officer named Reese."
04-373 +++$+++ 23170 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-373 +++$+++ 23171 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's conceded, as I understand it from Maryland --
04-373 +++$+++ 23172 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is.
04-373 +++$+++ 23173 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- that the police asked the question, and then the trial judge said the -- what Blake said was an answer to that question.
04-373 +++$+++ 23174 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-373 +++$+++ 23175 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's how she read what happened.
04-373 +++$+++ 23176 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-373 +++$+++ 23177 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There was a question implying, "You'd better speak to us," and there was an answer to that question. Not an initiation.
04-373 +++$+++ 23178 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-373 +++$+++ 23179 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's --
04-373 +++$+++ 23180 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
04-373 +++$+++ 23181 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- that's what we're --
04-373 +++$+++ 23182 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
04-373 +++$+++ 23183 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- we're dealing with in this case.
04-373 +++$+++ 23184 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I agree. And that's why I said earlier that when we look at what Innis says -- and I made reference to Innis earlier -- that it's any comment, any statement, designed to elicit a response. The trial court that found that what Officer Reese did was designed to elicit a response. This Petitioner agrees that it was interrogation; therefore, designed to elicit a response. The next question is, Was it -- did Blake respond? The trial court found, after hearing Blake testify, hearing other witnesses, that Blake was merely -- and I'd say merely, but very importantly -- responding to what Officer Reese said, not initiating a new conversation, that it was a continuous matter of only 28 minutes.
04-373 +++$+++ 23185 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, your position, I guess, is -- I think it is, in your last answer -- that we really shouldn't be phrasing the inquiry in terms of the voluntariness of the suspect's statement, at this point. We, rather, should be focusing it on whether the statement was, in fact, a spontaneous initiation on his part or a response to the preceding police statement.
04-373 +++$+++ 23186 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Which is what the --
04-373 +++$+++ 23187 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's the way you would phrase the --
04-373 +++$+++ 23188 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-373 +++$+++ 23189 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- issue for us.
04-373 +++$+++ 23190 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And which is what the trial judge did below. And when the trial judge made that finding, that what Blake was doing was responding -- because the trial court is in that unique position that this Court or any other public court can never be in, which is listening to the witnesses, we give the trial judges the duty to hear those witnesses and to make judgment calls based on what they hear from those individuals. We --
04-373 +++$+++ 23191 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well --
04-373 +++$+++ 23192 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- trust them with it.
04-373 +++$+++ 23193 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- absent of good-cop/bad-cop finding, and I -- and I repeat that they've credited Johns' testimony here -- this seems to me a very odd sort of interrogation, to say, "No, no, you -- we can't talk to him now." That's an interrogation? That's a stretch.
04-373 +++$+++ 23194 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I would say this. The trial court certainly said it struck her as a good-cop/bad-cop routine. I will say the following. If you do exactly what Detective Johns and Officer Reese did in this case, and if the person does decide to speak to you -- now, whether you phrase it the same way Detective Johns did or not -- the police are in no worse-off case -- position than they would be if the person had continued to sit in that cell alone and not spoken. Therefore, however you do it -- and the police will always come up with a creative way to do it, we know that from prior experience and past experience -- they will always find a unique way to do it. It may not --
04-373 +++$+++ 23195 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Counsel, is my --
04-373 +++$+++ 23196 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- be the same way.
04-373 +++$+++ 23197 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- is my understanding of the Maryland law in effect when this happened correct that if you prevail on suppression, your client cannot face charges, no matter what the other evidence is?
04-373 +++$+++ 23198 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not if we prevail on suppression, no. If we prevail on suppression, the State still had the right to prosecute Mr. Blake. When the State chose to take an interlocutory appeal, the law was -- no longer the law --
04-373 +++$+++ 23199 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right.
04-373 +++$+++ 23200 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but the law at the time was that if the State was not successful on appeal, it would be barred from prosecuting Mr. Blake. But they were not barred from going forward with their case --
04-373 +++$+++ 23201 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But that --
04-373 +++$+++ 23202 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- at the time of suppression.
04-373 +++$+++ 23203 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- that law applies to this case at this time, correct?
04-373 +++$+++ 23204 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. And I think that that should have nothing to do with how the Court rules on this particular matter, what the final result will be, whether we go to trial or not. I'll be happy to answer any other questions. Well, I see my time's up.
04-373 +++$+++ 23205 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Ravenell.
04-373 +++$+++ 23206 +++$+++ TRUE +++$+++ MR. RAVENELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
04-373 +++$+++ 23207 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Ms. Graeff, you have 5 minutes remaining.
04-373 +++$+++ 23209 +++$+++ FALSE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. With respect to the standard of review, this Court said, in Thompson versus Keohane, that custody is a mixed question of fact and law, and voluntariness -- in Miller versus Fenton -- that voluntariness is a mixed question of fact and law. And so, the historical facts are entitled to deference. But there is de novo review of the ultimate question of custody and voluntariness. And, given the questions here about what constitutes a cure, shows that that same standard should apply. It should be a legal standard, not a factual finding.
04-373 +++$+++ 23210 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How about the trial judge's determination? There was a question. Everybody agrees Reese -- - what Reese did was interrogate.
04-373 +++$+++ 23211 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-373 +++$+++ 23212 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the trial judge then finds there was an answer to that question. Is that a matter of fact? It didn't seem that the trial judge was treating that as a matter of law.
04-373 +++$+++ 23213 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, whether there was a cure, and whether he initiated, it's the State's position to be a mixed of question of fact and law. What was said is a historical fact. Whether what -- Detective Johns cured it and allowed Blake to initiate should be reviewed de novo. And with respect to initiation, it's important to note that, in Bradshaw, the Court said that there's a two-part inquiry. You look at, one, did the defendant initiate? And, two, if he did, that's when you get to the voluntariness analysis.
04-373 +++$+++ 23214 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is it fact, or is it not fact, law, in respect to the following? He's sitting there. And there is a question of what motivated him. Did it motivate him totally that his -- this thing about his codefendant, or was he moved, in significant part -- moved, motivated -- by the earlier, 30-minute earlier, improper questioning? That sounds like a fact. Or do you think it's not a fact?
04-373 +++$+++ 23215 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that is a fact, but, under Seibert and Elstad, is not the proper analysis. You don't look at -- in Seibert and Elstad, the court did not look at whether the prior unwarned statement caused the second statement. The court looked at whether the cure effectively advised the suspect that he did not have to speak. And we're suggesting that the same analysis applies in the Edwards context. You don't look at whether the improper comment caused the initiation. You look at whether the cure effectively conveyed that there would be no more questioning, that the choice was up to the suspect and the police were going to honor that choice. And once that cure happens and the suspect indicates he wants to speak, there's initiation. And then the court can go on to the voluntariness analysis. The Edwards presumption of involuntariness imposes a high cost to the truthseeking function of a trial, to society's interest in having relevant evidence admitted at trial. And when the purpose of Edwards is not served, when a suspect understands that questioning will cease, that high cost is not justified.
04-373 +++$+++ 23216 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask one question before you sit down, if you're through? Is it your understanding that the trial judge held that an Edward violation may not be cured, or that she held that, on the facts here, it was not cured?
04-373 +++$+++ 23217 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My reading is, she found, on the facts here, it was not cured.
04-373 +++$+++ 23218 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So that, your -- the answer to your -- the question presented in your cert petition really is answered. We all agree, it can be cured.
04-373 +++$+++ 23219 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it depends what can --
04-373 +++$+++ 23220 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Because the question you asked is whether it can be cured.
04-373 +++$+++ 23221 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this Court has never addressed -- and, in fact, there is disagreement here as to whether it can be cured. So, here, the trial court did look -- the trial court really didn't look at the analysis in how you look at whether --
04-373 +++$+++ 23222 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you do agree --
04-373 +++$+++ 23223 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- it's cured --
04-373 +++$+++ 23224 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that the trial judge did assume it could be cured.
04-373 +++$+++ 23225 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, she looked at -- she looked at -- I guess it's difficult to understand exactly. She was looking -- she looked at Edwards, she looked at voluntariness, she talked about attenuation. So, she did acknowledge that if it was six months later, he could give a statement.
04-373 +++$+++ 23226 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And so, there could have been a cure.
04-373 +++$+++ 23227 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-373 +++$+++ 23228 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-373 +++$+++ 23229 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If you lose this case, can the defendant be prosecuted federally under the carjacking statute?
04-373 +++$+++ 23230 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not aware. He cannot be -- I'm not aware of whether he can be prosecuted federally. He cannot be prosecuted in State court, though. Under Maryland law at the time, if we do not prevail in this appeal, he cannot be prosecuted by --
04-373 +++$+++ 23231 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But --
04-373 +++$+++ 23232 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the State court.
04-373 +++$+++ 23233 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the prosecutors were well aware of that when they determined to appeal.
04-373 +++$+++ 23234 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-373 +++$+++ 23235 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But perhaps they were worried that they didn't have a case without the defendant's statements.
04-373 +++$+++ 23236 +++$+++ TRUE +++$+++ MS. GRAEFF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The statute puts the State in a difficult position. It's been changed now. But, at this time, the prosecution did have to decide whether to appeal the statement, and that law has been changed. But with respect to Blake, he will not be able to be prosecuted if the State does not prevail in this Court. Detective Johns cured the impropriety here. He made it clear to Blake that there would be no more questioning. And it was Blake's choice whether to speak or remain silent.
04-373 +++$+++ 23237 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Counsel. The case is submitted.
04-433 +++$+++ 23242 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first this morning in 04-433, Anza v. Ideal Steel Supply Corporation. Mr. Frederick.
04-433 +++$+++ 23244 +++$+++ FALSE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: This case concerns use of alleged fraud in the underpayment of taxes as the predicate for a treble damages civil RICO action. Respondent Ideal Steel concedes that it was not defrauded, but it, nonetheless, claims lost profits when National failed to pay State sales taxes and thereby offered a lower overall price to consumers. Our position is that Ideal's injury is too indirect as a matter of law under RICO. In reinstating Ideal's RICO claims against National, however, the Second Circuit committed two errors. First, it substituted a direct targeting test that credited the plaintiff's allegations of intent instead of applying this Court's test for proximate causation in the Holmes case. And second, the Second Circuit permitted Ideal to satisfy the reliance requirement by invoking the State of New York's reliance on the truth of National's allegedly false tax returns. Both errors transformed civil RICO into a litigation weapon of great destructive force for defendants who will be forced to defend, beyond the pleading stages, damages claims of the most attenuated and indirect character. With respect to our first argument, proximate cause, the court below erred by not applying this Court's test in Holmes and also by failing to take into account the fact that fraud is a statutory violation that -- for which the plaintiff needs to be within the zone of interest. Quite simply, because Ideal was not the defrauded party, it is not within the zone of interest protected by the fraud statute. With respect to the Holmes factors, for three reasons the -- Ideal Steel is unable to plead proximate cause. First, in Holmes, this Court made clear that where there's an indirect plaintiff, the claims are difficult to prove in terms of ascertaining what the level of damages is. That is particularly true in this case because of the highly attenuated chain of causation that allege -- that Ideal alleges as a factual matter.
04-433 +++$+++ 23245 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, isn't there something different here? Because in -- in Holmes, the -- the party that was claiming the -- sort of the ultimate damage was damaged because other people up the line were damaged, the -- the shareholders and then the broker-dealers and so on. There was a kind of a direct line of -- of causation. But the people who were claiming were at the tail end of it. Here, the causation between the -- or the -- or the cause of the harm to -- to the clients on -- on the other side was -- was direct. It was direct competition harm. So we are in a different situation from Holmes. In other words, they -- they weren't -- the -- the plaintiffs in this case were not injured simply because New York lost some money. They were injured in -- in their own right by -- by the competition between them and your client.
04-433 +++$+++ 23246 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't agree, Justice Souter, and here's why. In Holmes, the customers were the ones who were denied proximate cause in this decision -- in -- in the Court's decision. They stood in a direct line from the harm that was caused when the companies were defrauded and the stock value caused the brokerage to go down. It was completely foreseeable that customers that owned the shares in those firms would also suffer direct harm.
04-433 +++$+++ 23247 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Sure, but they suffered the harm because the firm suffered the harm. There was -- there was -- there's a word there. There was -- there was a victim in -- in the direct line of causation, if you will, between them and -- and the -- and the offending RICO party. Here, there's -- there's nobody in between the two of them.
04-433 +++$+++ 23248 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that's not so. There is, and New York is in between them in this respect. If -- Ideal is asserting that because the taxes had not been charged and then paid to the State of New York, that National gained a competitive advantage. But I think the Court has been clear that the competitive harms -- and this was true in the Associated General Contracting case in which the Court in Holmes relied directly -- is not going to be sufficient when there are multiple steps in the chain. Here, as a factual matter, Justice Souter, they have to be able to link every individual sale for which there was not a tax paid, assert that that person was wrongfully not charged a tax. Under New York law, under certain circumstances, if a contractor has a certificate, it's not appropriate for the vendor in this case to charge the sales tax. And then they have to be able to show that they would have gotten the sale --
04-433 +++$+++ 23249 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why -- why is that true? Let's assume that they could establish that there was a purpose and an intent to adopt this -- this tax evasion scheme and that the whole object was to undermine and -- and injure the competitor, and they show that this scheme began to work and that their reputation as a lower-cost competitor was -- was well established. Why -- why isn't that enough?
04-433 +++$+++ 23250 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because this Court rejected a similar theory in section 4 of the Clayton Act context where it held that a specific intent to injure is not sufficient as a pleading matter. The Court in that case held that where an association had a -- an -- a specific intent to harm the unions, that that was not sufficient for invoking section 4 of the Clayton Act. The same analysis applies here because what Ideal is attempting to do is to use artful pleading as a way to get around the proximate cause requirement through their simple assertions that there are no, in fact, other competitors within a three-State area and that National was targeting them for competitive harm. They're attempting to evade the normal requirements for proximate cause that look to whether or not the direct injury is suffered by the plaintiff.
04-433 +++$+++ 23251 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Frederick, you -- you started by saying how difficult this would be to prove, but could the plaintiff piggyback on New York? If New York was the defrauded party and taxes are owed to the State, has the State had no proceeding in this?
04-433 +++$+++ 23252 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, as the briefs indicate -- and we're somewhat outside the record. As the case comes to this Court, it's on the pleadings. But the footnotes in the brief give a little bit of a flavor of what has happened since then, and there are audit proceedings that the State of New York has commenced. It has not commenced any kind of civil or criminal proceeding against National, nor has it brought a RICO action against National. But there are discussions with the State at the level of the auditors as to whether or not any back tax is owed and, if so, in what amount.
04-433 +++$+++ 23253 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do I understand correctly that the complaint has since been amended to assert a Federal income tax shortfalls?
04-433 +++$+++ 23254 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Justice Ginsburg. And as we pointed out in our reply brief, there are in excess of 500,000 corporate income tax statements that are issued by the IRS for underpayment each year and in excess of 6 million unemployment underpayment notices sent out. And under Ideal's theory, each of those would be a predicate act for a RICO case, asserting treble damages where one competitor could use the in terrorem effect of a RICO claim simply because of an underpayment of tax notice.
04-433 +++$+++ 23255 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but this is a little more focused than that, I think. There's only one competitor here, isn't there?
04-433 +++$+++ 23256 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We have to assume that for purposes of this pleading except insofar as it acknowledges whether or not a legal requirement is satisfied, and I think that the cases of this Court and certainly the commentators have been clear the Court does not need to assume a fact for purposes of a legal conclusion. As the -- as the footnotes indicate, that has not been borne out by discovery, and there are, in fact, multiple competitors.
04-433 +++$+++ 23257 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But do you think it's fair to interpret the Second Circuit as having, in effect, held that every competitor of anybody who cheats on his taxes has a RICO claim?
04-433 +++$+++ 23258 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What the Second Circuit held was that if the plaintiff pleads that they were a direct target -- and here, other competitors in the market like Colonial, Alimar, Friedel, and Easton Steel, could plead exactly the same thing that they, in fact, were the direct target. And under the Second Circuit's test, that would be sufficient to override a motion to dismiss and proceed the parties into protracted discovery. And what the Court in Associated General Contracting and in Holmes made clear was that the courts were not designed to be the forums for this kind of long, arduous fact-finding mission in order to determine whether or not indirect injuries should be compensable with treble damages under the RICO statute.
04-433 +++$+++ 23259 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Frederick, I understand how your arguments work under section 1962(c), but how -- how do they work under 1962(a)? It seems that that gets around many of the causation and reliance arguments that you make.
04-433 +++$+++ 23260 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, the way we get to the proximate cause requirement through Holmes is through 1964(c)'s use of by reason of a violation of 1962. We submit that the proximate cause inquiry is the same whether it's a 62(a) violation or a 62(c) violation. And in fact, Ideal has not advanced really any argument to the contrary. They sued under 1962(a) in order to get a deeper pocket, National, which they would not be able to get under 1962(c). Corporations are not persons.
04-433 +++$+++ 23261 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But 62(a) gets to the reinvestment of the illicit proceeds in a -- in an enterprise, and here you have the opening of the facility right next -- not right next door -- nearby the other facility. And it seems to me all they have to show is that the proceeds used for that were illicitly procured.
04-433 +++$+++ 23262 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They -- that's not their allegation, though, in this sense. The theory that your hypothesis is postulating is a money laundering predicate act, but they don't assert money laundering as the predicate act. They assert fraud. And it's exactly the same conduct, the alleged underpayment of taxes that is fraudulently sent to the State of New York, and through that, an indirect injury. So their theory under (a) and under (c) of section 1962 factually is exactly the same. The only reason that they brought in an (a) claim is, as I pointed out, to get at the pocket with suing National as a corporate defendant. But I would point out here, in further answer to your question, Justice Ginsburg, the State of New York, under the Holmes test, is the proper plaintiff for purposes of vindicating the law's purposes, which after all, is to negate the activity of fraud.
04-433 +++$+++ 23263 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is there any impediment to New York suing him? This would be -- it's kind of strange. New York has its tax scheme. It has penalties for failure to pay tax. And then it could go into the Federal court and say RICO is better than our penalties. RICO has treble damages.
04-433 +++$+++ 23264 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are cases that have so held, and I think this Court's decision in Pasquantino, which holds that the tax revenue from a governmental entity can be property within the meaning of the fraud statutes, would support a general notion that a State could, in fact, if it believed that that was necessary to vindicate the law's purposes would be appropriate. Of course, here, the State of New York has got to get to that level through a very long series of steps, and it hasn't even approached, you know, the initial steps in terms of even bringing civil claims against National.
04-433 +++$+++ 23265 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The -- the Second Circuit seemed to rely on an earlier case that is much featured in Respondent's brief, but I don't recall your dealing with it. Is that Commercial Cleaning case of the knowingly hiring undocumented aliens and paying them less than the minimum wage, which gave that person a competitive edge over rivals who -- who paid what the law required?
04-433 +++$+++ 23266 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That, Justice Ginsburg, may give rise to certain legal remedies and certain harms, but we submit it would be too indirect for a RICO treble damages claim. There certainly could be an unfair competition claim under State law, perhaps a tortious interference with business advantage. But the purpose of RICO is not to federalize unfair competition law. And this point, we submit is very important because they could not bring a fraud claim under State law. It's not in their complaint, but --
04-433 +++$+++ 23267 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose -- suppose the company gets a competitive advantage by engaging in the sort of activity that's would be traditionally be associated with organized crime, let's say, extortion or labor offenses. Would your causation argument be any different in that situation if a competitor filed a civil RICO action?
04-433 +++$+++ 23268 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It could, Justice Alito, in this way. Congress has certainly announced, through a variety of statutes, a congressional policy of trying to deter and to minimize the use of violence and force against individuals. And the Hobbs Act is quite broadly worded in the context of robbery and extortion, certainly. The question, though, of whether or not an indirectly sustained injury -- in your hypothetical, something like competitive advantage -- would be sustainable -- I think would be looked at through the Holmes inquiry whether or not the damages that are asserted are too attenuated to be readily ascertained.
04-433 +++$+++ 23269 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I don't understand your answer then. I mean -- I mean, does the fact that -- that there was classic mob violence involved make a difference or not?
04-433 +++$+++ 23270 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It can --
04-433 +++$+++ 23271 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why? I -- your answer didn't -- didn't tell me why.
04-433 +++$+++ 23272 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because if -- depending on the exact facts of how the violence was done, whether or not the injury that is sustained is direct within the Holmes factors --
04-433 +++$+++ 23273 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that has nothing to do with violence or not. It has to do with directness or not. You're saying you would apply the same directness test.
04-433 +++$+++ 23274 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, although there is -- Justice Scalia, I don't want -- I don't think that it should be foreclosed that as your opinion in Holmes and as footnote 20 of the majority opinion in Holmes pointed out, how those proximate cause factors get analyzed with the different predicate acts may vary slightly, but we think --
04-433 +++$+++ 23275 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, may -- may I ask you to focus this way, just going one step further than the hypo you've got? Let's assume that the -- that the defendant engages in extortion against A and makes a lot of money doing it. As a result of that, in -- in dealing with B, the defendant, in fact, can -- can offer -- offer goods for sale to B's customers at a lower price simply because he's getting all this income from the extortion. In that case, wouldn't your analysis be the same as your analysis in this case?
04-433 +++$+++ 23276 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it would because there is a better defendant A which got extorted for purpose of vindicating the extortion --
04-433 +++$+++ 23277 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- but if that's the case, then -- if -- if the relationship between the parties is the same, then the presence of violence or nonviolence has nothing to do with your -- your position. Does it?
04-433 +++$+++ 23278 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it does in this extent. I can't think of a hypothetical, off the top of my head or after some consideration, of where the violence would have been such that there would have been a less indirect injury than the one in your hypothetical, Justice Souter. But I would not want to foreclose the possibility, as this Court did not foreclose in footnote 20 of the Holmes opinion, that there could be such a case. It's not necessary for us to prevail here because the mail and wire fraud predicate acts are very close to the securities fraud that this Court considered in the Holmes case. I would acknowledge that in the extortion and robbery and other carjacking and violence type acts, there could be congressional policies that would be taken into account. And certainly the legislative history of RICO points to a concern that persons would be using violence in a way that would cause harms. But I don't think the Court needs to go there in order to rule in our favor in this case.
04-433 +++$+++ 23279 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask this? I assume you would agree that if the defendant had -- had hired a thug to go out and beat up his competitor, the competitor would have a cause of action.
04-433 +++$+++ 23280 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-433 +++$+++ 23281 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what if the defendant bribed a -- an official of the New York revenue department to impose unnecessarily high taxes on the competitor?
04-433 +++$+++ 23282 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is starting to get more indirect, but I think that that probably would be sufficient to show injury because the State of New York is not suffering any kind of property loss or any other kind of harm other than honest services.
04-433 +++$+++ 23283 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what if they -- what if they somehow or other fraudulently persuaded the revenue agents of the State to impose higher taxes and penalties on the competitor?
04-433 +++$+++ 23284 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I don't think that that hypothetical in any substantive way is different from the second one, Justice Stevens.
04-433 +++$+++ 23285 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you think there would be recovery in that scenario.
04-433 +++$+++ 23286 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I -- I think -- I think that the -- the question of how government behaves, for purposes of its discharge of public responsibilities, you know, is treated through a lens that goes to whether or not the law can be properly vindicated there. And I assume that the State of New York has various laws that can be enforced in a way --
04-433 +++$+++ 23287 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, supposing we've got a license inspector or somebody every Monday night to go out and -- and inspect very heavily the competitor and cause all sorts of nuisance values and so forth. But he's a State official, induced to do that by some kind of bribery or fraud on the part of the defendant. Would there be a cause of action there or not?
04-433 +++$+++ 23288 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not under -- well, I don't think there would be a cause of action by the competitor under RICO because, again, those damages are too indirect. That's not very different from the Associated General Contracting case where there were -- there was thought to be coercion on the part of the association against the labor unions, and this Court held that that was insufficient for proximate cause.
04-433 +++$+++ 23289 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm rather surprised at your answers because I was thinking you want to draw a rather clear line between where fraud is at issue, and only fraud. Proximate cause, case A, the fraud does nothing but lowers the cost of the firm; case B, the fraud is something that directly is aimed to raise the cost of a particular specified competitor. I see a clear difference between those two cases, but you apparently don't.
04-433 +++$+++ 23290 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think, Justice Breyer, it depends on how the fraud plays out, and -- and I would acknowledge that this is a -- a somewhat nebulous area when you --
04-433 +++$+++ 23291 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, no, it's not nebulous. It's absolutely clear. In the one hand, you are targeting a particular defendant to raise -- a particular competitor to raise his costs. In the other hand, you are taking an action that simply lowers your own and, therefore, equally will hurt any competitor, whether there's one or a million.
04-433 +++$+++ 23292 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The difficulty, Justice Breyer, as -- as that series of hypotheticals plays out in the real world is that defendants who have to defend against actions are forced to deal with the truth of pleadings for purposes of 12(b)(6). And as happened in this case, where the plaintiff can, through artful pleading, you know, navigate through these series of proximate cause issues, can plead facts that courts have to be assuming as true, reach a legal conclusion that there is, in fact, proximate cause --
04-433 +++$+++ 23293 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. If you had my test, you'd win this case.
04-433 +++$+++ 23294 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Justice Breyer, I guess my point is that I think that there -- with all candor to the Court, there are some difficulties in handling that as a pleading matter. And yes, I'll accept the win if that's how that's the Court wants to read the case.
04-433 +++$+++ 23295 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, no. I don't want to give you a win --
04-433 +++$+++ 23296 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But -- (Laughter.)
04-433 +++$+++ 23297 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ on a theory that --
04-433 +++$+++ 23298 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But -- but I would submit that the rule as articulated is one that would have some administration issues. I think it is certainly an easier case where there is a broad-spread competitive harm as a result of a lowering of a particular competitor's costs or a particular defendant's costs and one where there is a fraud that is specifically directed at a piece of property for which --
04-433 +++$+++ 23299 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it's not --
04-433 +++$+++ 23300 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the plaintiff asserts a claim.
04-433 +++$+++ 23301 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think the reason Justice Breyer's test is a little more administrable than you're willing to admit is that it's not a question of motive. You're not asking why they did it. You're asking where the predicate act is directed, and if the predicate act is directed to lowering the -- the firm's taxes so that it can compete more aggressively, that's one thing. If the -- the predicate act is directed to, you know, blowing up the other firm's warehouse or -- or, you know, something like that, it's a different matter altogether.
04-433 +++$+++ 23302 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Mr. Chief Justice. But under the Holmes test, that becomes much easier to ascertain because you know where the damages are. You don't have to worry about apportioning damages among multiple plaintiffs, and there may not be a better plaintiff. So I think if you applied the Holmes factors in this test here and to the example that you gave, the answer is a fairly straightforward one. If I could turn to the second point of proximate cause that we have raised, it's that as a matter of zone of interest standing, because Ideal is not the defrauded party, they fall outside the zone of interests protected by the fraud statutes. It's been well accepted at common law and through this Court's incorporation of common law principles as a means of interpreting the RICO statute, that the predicate act should be viewed in terms of who is designed to be protected. Here, because of the allegations of fraud against the State of New York, the State of New York is within the zone of interest that the -- of the fraud provisions. Ideal is not. Ideal falls outside the zone, and under the way that some courts have viewed proximate cause analysis, that would be sufficient. The second large point that I came here to argue today was that reliance was improperly analyzed by the court below. At common law, reliance is a necessary element of fraud. Ideal, for similar reasons to the zone of interest analysis, is not the party that relied on any misrepresentations by my client, National and the Anzas. And therefore, it cannot assert a fraud claim because of that absence of reliance.
04-433 +++$+++ 23303 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm -- I'm impressed by one of the cases cited in the brief, in which someone causes a person who has a contract with a third party to believe that the third party has repudiated the contract, and thereby gets that person to give the contract to himself. Now, in that case, the person defrauded is the other party to the contract, not the -- not the third party. And yet, I suspect the third party would -- would be direct enough to be -- to be within the protected scope, don't you think?
04-433 +++$+++ 23304 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do, Justice Scalia, and --
04-433 +++$+++ 23305 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And yet, he's not defrauded.
04-433 +++$+++ 23306 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but common law cases have carved out a very narrow exception where there is a relationship between the defrauded party and the entity that is injured. Usually it's an agency relationship. Sometimes it's a trustee or fiduciary relationship, but that is a very narrow exception that would fall within your hypothetical and would fall outside this case because Ideal cannot plead or prove any reliance whatsoever on the misrepresentations --
04-433 +++$+++ 23307 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. But it -- it at least contradicts your assertion that you have to be the defrauded party. You acknowledge that sometimes you don't have to be the defrauded party.
04-433 +++$+++ 23308 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our briefs make that concession clear, I think, Justice Scalia. If I could reserve the balance of my time.
04-433 +++$+++ 23309 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Frederick. Mr. Roddy.
04-433 +++$+++ 23311 +++$+++ FALSE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Ideal Steel asks this Court to affirm the decision of the Second Circuit, send this case back for trial in the Southern District of New York. The case is ready to be tried. We ask you to do this for four reasons. First, the Second Circuit's decision in this case is consistent with this Court's decisions in Sedima in 1985 and National Organization for Women in 1994. Second, the Second Circuit's decision is entirely consistent with this Court's decision in Holmes in 1992. Third, we submit that reliance is not an element of a civil RICO claim based on predicate acts of mail and wire fraud. But fourth, if reliance is an element, then we agree with the Solicitor General that reliance by a third party not only suffices under RICO, but sufficed at common law. That should be the end of the matter. The decision should be affirmed. The case should go back for trial.
04-433 +++$+++ 23312 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you for relaying -- relating the position of the United States -- are you relying on that brief in the Bank of China case that was filed --
04-433 +++$+++ 23313 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I am. Justice Ginsburg, I am. 5 months ago, as you know, when --
04-433 +++$+++ 23314 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which -- which was kind of said in passing to say that there was no -- that the -- that the court below was right and we shouldn't take the case.
04-433 +++$+++ 23315 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the -- Justice Ginsburg, the Solicitor General filed its amicus brief here 5 months ago when this Court had accepted the case for review. In its brief, the Solicitor General said no fewer than seven times, not just as a passing aside, that third party reliance, what the Solicitor General called reliance by someone, not only suffices under RICO, but sufficed at common law. We agree with the Solicitor General's position. Here, we have that reliance by a third party, what the Government called someone, the State of New York.
04-433 +++$+++ 23316 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Being -- is there any other case where the defendant is charged with not paying tax either to the Federal Government or the State? Now you have it both because you --
04-433 +++$+++ 23317 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-433 +++$+++ 23318 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you said they haven't paid tax for this -- their income -- Federal income tax either. This seems to be a novel claim, and I don't know of another where failure to pay tax owed to a State or the Federal Government is the basis for a RICO claim.
04-433 +++$+++ 23319 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, as you correctly pointed out, Ideal's second amended complaint, which is not before this Court in this proceeding, alleged an income tax scheme. And -- and Judge Berman in the Southern District of New York permitted that amendment. I am not aware of another case involving a competitor bringing a claim on these set of facts. However, as we pointed out in our brief on the merits, there is a discrete set of RICO cases involving competitors as plaintiffs who either allege misrepresentations to third parties, whether customers or government agencies, bribes, or violence and threats of violence. I submit to you that this Court's decision in National Organization for Women in 1994 presents a variation on the theme. You will recall that in that case the anti-abortion protestors, the defendants, engaged in violence or threats of violence directed at customers, and the injury was to the health care clinics, the plaintiffs. And -- and I wish to say that -- that Petitioners --
04-433 +++$+++ 23320 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The customers, employees, and doctors, as I recall. It was --
04-433 +++$+++ 23321 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-433 +++$+++ 23322 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- not just customers.
04-433 +++$+++ 23323 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was. Petitioners --
04-433 +++$+++ 23324 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So there is that kind of connection that -- that your -- your colleague was -- was referring to.
04-433 +++$+++ 23325 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. They try to distinguish National Organization for -- for Women in two ways, Justice Scalia. First, they say that in National Organization for Women, the potential patients, the customers, were a constituent part of the -- of the health clinic's business. That's true here also. But more important, they say in their reply brief that this Court only decided that case on Article III standing. That is not correct. If you look at Respondent's brief on the merits filed in that case in September 1993, both issues were raised, Article III standing and RICO standing, meaning injury plus proximate cause.
04-433 +++$+++ 23326 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're getting away from --
04-433 +++$+++ 23327 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But here -- here, the intimidation was -- was not directed to your customers. I mean, it seems to me that's a -- that's a totally different situation. Had -- had your customers been defrauded, that would be a -- your customers, but you -- there -- there was nothing directed specifically at the customers of your store.
04-433 +++$+++ 23328 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly -- certainly, Justice Scalia, there was.
04-433 +++$+++ 23329 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What was it?
04-433 +++$+++ 23330 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In a --
04-433 +++$+++ 23331 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought they were just cheating the State. What was specifically directed at the customers of your store?
04-433 +++$+++ 23332 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ These are inappropriate financial inducements. They are offered a lesser price. It's a -- it's a -- it's an underbidding --
04-433 +++$+++ 23333 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, that's -- that's good, not bad. I mean, you know.
04-433 +++$+++ 23334 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't -- isn't the problem with your answer to Justice Scalia and -- and a problem which -- which is bothering you with your case this? We're talking here about two different lines of causation? And each of them, to some degree, contributes to the ultimate result which you claim, which is a loss of business and -- and business harm. One line of causation is -- is competitive. It's price competition. They charge less. They lure the customers away. The other line of competition is fraud on the State of New York which makes it easier for them to engage in price competition. So far as the fraud on the State of New York is concerned, its effect on your client's business is indirect. In other words, they can defraud New York without hurting your client. They might simply have pocketed all the money they saved, but the -- the only way that the fraud on New York hurts your client is that it puts them in a better position to engage in the second line of causation that hurts your client and that is direct price competition. If you accept the fact that there are two different lines of causation here, don't we have to say, under the Holmes direct analysis, that so far as the fraud on New York, which is the RICO violation, the consequence is an indirect one, the consequence to your client, but so far as the price competition is concerned, the consequence is a direct one, but price competition isn't a RICO violation, which leaves us saying, so far as the RICO violation is concerned, it's indirect? Now, if -- if I have gone astray, tell me where.
04-433 +++$+++ 23335 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, respectfully I -- I disagree that the two parts of the -- that the two parts of the sphere of the scheme can be broken apart like that. It's one scheme. They have -- the -- the Petitioners have to defraud the State of New York. They have to not only mislead the State of New York, but fend off the State of New York, which frees up the cash which, as the Chief Justice pointed out, enables them to do two things. First, it enables them to offer lower prices, which does competitively injure my client. Second, as we allege in the complaint, in the amended complaint, they took all those cash proceeds and they took them to the Bronx and they opened up a competing location where they did not previously have one.
04-433 +++$+++ 23336 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can we go back to the question that I was trying to ask you before with relation to the novelty of this because it involves fraud on the -- a government that's a tax assessor and collector? It seems to me that the taxing authorities, both State and Federal, might have some genuine concern with a potential plaintiff's examining to see, gee, has my -- has my rival, my competitor cheated on his or her tax. That -- that could be pretty disruptive of the State or the Federal Government's administering their tax systems.
04-433 +++$+++ 23337 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, I don't see that. That's certainly not true in this case. What I believe is true in this case is that but for my client's proactive litigation, this never would have come to the taxing authorities' attention. The taxing authorities are free to bring their own case. In our brief on the merits, in fact, we -- we cited one case where the City of New York suing a different set of defendants over unpaid cigarette taxes. The point I want to make is that let us assume that the State of New York intervened in this case, which is always a possibility -- perhaps it's a bit late now -- or brought its own case. My clients and the State of New York are chasing two different piles of money, two separate measures of damages. In our brief on the merits, we set forth a hypothetical, a $100 cash transaction, to illustrate that. My clients cannot recover the lost taxes that were taken from the State of New York. The State of New York cannot recover the lost profits that my client suffered. So in -- in the Holmes sense, we're not dealing here with an apportionment problem because --
04-433 +++$+++ 23338 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I wasn't concerned about that problem. I was concerned about people setting themselves up as private enforcers of tax liability as kind of a surrogate for the government out there detecting who's violated the tax laws.
04-433 +++$+++ 23339 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not as a surrogate, Justice Ginsburg. The -- the fact of the matter is that wrongdoers act in a variety of ways.
04-433 +++$+++ 23340 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, you are claiming a different amount of damages, entirely different.
04-433 +++$+++ 23341 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-433 +++$+++ 23342 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I'd like to ask you supposing there were two competitors in the market instead of just the one --
04-433 +++$+++ 23343 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-433 +++$+++ 23344 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and they did it just to get at -- at the competitor A and didn't care about B, but B suffered exactly the same harm, would B have a cause of action?
04-433 +++$+++ 23345 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If B could pass through the Holmes wicket of causation, Justice Stevens --
04-433 +++$+++ 23346 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, he has exactly the same causation as A, but he just didn't happen to be a target in the -- in the mind of the defendant. Would he --
04-433 +++$+++ 23347 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the answer -- the answer would be yes. Where I believe --
04-433 +++$+++ 23348 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it'd be true if there were 20 competitors too?
04-433 +++$+++ 23349 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Twenty competitors becomes a bit more difficult to get --
04-433 +++$+++ 23350 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why?
04-433 +++$+++ 23351 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to get them all through the Holmes --
04-433 +++$+++ 23352 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I imagine the damages would be less, but why would it be any different analytically?
04-433 +++$+++ 23353 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Analytically on a motion to dismiss, if there were 20, I agree that all should be -- if all suffered the exact same competitive injury and the set of factors --
04-433 +++$+++ 23354 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And then change it one other way. Say, instead of defrauding New York, they defrauded the landlord and -- and got a rent-free office space, and that cut down their costs. Would the competitors have a cause of action then?
04-433 +++$+++ 23355 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Assuming that defrauding the landlord, Justice Stevens, involves predicate acts of mail and wire fraud or some other variety --
04-433 +++$+++ 23356 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, it did.
04-433 +++$+++ 23357 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of -- of predicate act --
04-433 +++$+++ 23358 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They're sending out thugs to beat them up or something like that.
04-433 +++$+++ 23359 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Then the -- the answer would be yes. And if you look at -- if you look at the competitor cases, what I call the competitor cases, there's a very discrete body of law we're talking about. They're cited in our brief. There's fewer than a dozen cases around the country from the circuit and district courts. And what they show is that there's only three ways you -- there's only several ways you can do this. You can -- you can make a misrepresentation to a regulator or to a customer. We have those cases. You can bribe a customer or a regulator, or you can engage in violence directed at a -- at a regulator or at a customer. There's only three variations.
04-433 +++$+++ 23360 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there -- is there any limit on the number of competitors who would have standing? You mentioned cigarette taxes. Suppose one newsstand in New York City is not collecting the cigarette tax. Does that mean that everybody else who's selling cigarettes in New York would be able to bring a claim?
04-433 +++$+++ 23361 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Alito, we -- we don't have those -- those facts here.
04-433 +++$+++ 23362 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I know, but where would the line be drawn?
04-433 +++$+++ 23363 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think it -- every -- every competitor in the State of New York could sue because, as a practical matter, I -- I submit to you that someone who lives in Manhattan is probably not going to go to Queens to buy their cigarettes. There are much --
04-433 +++$+++ 23364 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if they're tax-free they might. (Laughter.)
04-433 +++$+++ 23365 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, that's the whole point is that the --
04-433 +++$+++ 23366 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-433 +++$+++ 23367 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the fraud gives him a competitive advantage not just over the, you know -- his -- his brother-in-law's company that he's trying to get at, but over everybody who's in the business.
04-433 +++$+++ 23368 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In that factual scenario, yes.
04-433 +++$+++ 23369 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, if that's so, then go back for a minute, please, to Justice Souter's question. It doesn't concern violence. I'm -- certainly if violence is involved or a direct action against an employee or the competitor himself, then I'll assume you'd win. But the line I think that he drew very clearly and I think Justice Stevens picked up on, as I heard it, is a -- a fraud where the person defrauded is not the competitor and the only effect of the fraud is to lower the cost of the person who is doing the fraud. Now, if that's so, you either draw Justice Souter's line or you don't. If you do draw Justice Souter's line, then you stay out of the thicket. If you don't, you'll have all the problems that were mentioned, that there is no way to distinguish between one person, two persons, 100 people. There is no way to know whether the lower cost of the defrauding person did or did not lead to the shift of sales. There is no way to know, indeed, whether it's a rent, in which case prices didn't fall, or whether it's actually some kind of ability of the competitor -- of the defrauding person to take over the market. All those things that are issue in antitrust cases and totally unsolvable are suddenly imported into RICO, where if you really want to bring a case, bring an antitrust case, and at least people know how to face it there. That's -- that's the -- that's the kind of claim -- that's the kind of problem that I think you're facing, and I'd like you to have the chance to respond to it.
04-433 +++$+++ 23370 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Thank you, Justice Breyer. The purpose of the scheme, the purpose of defrauding the State of New York was not just to fend off the State of New York, but to free up the cash to be able to offer a price discount. As -- as the Second Circuit found, relying on the Commercial Cleaning case, which we think is very much on point, that is the reason why they did it. You can't separate them apart like that.
04-433 +++$+++ 23371 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Roddy, I thought that the way you got out of this problem was what your opponent has called careful pleading. I thought that -- that what you were saying was that your client was targeted, that other competitors were not targeted, that this is something of a family -- both of these companies are owned by the same family and there's some bad blood. Is -- is that part of the background of this?
04-433 +++$+++ 23372 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They say that's part of the background, Justice Scalia.
04-433 +++$+++ 23373 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-433 +++$+++ 23374 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not our position.
04-433 +++$+++ 23375 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought it was part of your complaint that -- that the business here was going after your client in particular.
04-433 +++$+++ 23376 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, that is correct.
04-433 +++$+++ 23377 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And other competitors might have been hurt, but -- but the whole purpose of it was to get your client. That is to say, your client was in some special way a target. Wasn't that part of your complaint?
04-433 +++$+++ 23378 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is -- that is part of --
04-433 +++$+++ 23379 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you abandoning it?
04-433 +++$+++ 23380 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
04-433 +++$+++ 23381 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, if -- if you're abandoning it --
04-433 +++$+++ 23382 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
04-433 +++$+++ 23383 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- then you're -- then you're in the soup -- (Laughter.)
04-433 +++$+++ 23384 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- with -- with all --
04-433 +++$+++ 23385 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia --
04-433 +++$+++ 23386 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you know, all the competitors are going to be covered. But if you're not abandoning it, then -- then -- you know, then maybe we can talk further.
04-433 +++$+++ 23387 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The complaint -- (Laughter.)
04-433 +++$+++ 23388 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, the amended complaint alleges that my client, Ideal Steel, was the target, was the intended victim of this scheme.
04-433 +++$+++ 23389 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So what does that mean? Then that means you have like the family vendetta exception to the RICO -- (Laughter.)
04-433 +++$+++ 23390 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, Justice Breyer, they raised the family feud. We explained it in a footnote. That's not what this case is about.
04-433 +++$+++ 23391 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, I mean, you see the point. The point is I don't see how it's administrable in a law, particularly in an economic context --
04-433 +++$+++ 23392 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
04-433 +++$+++ 23393 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- where people who are interested in making money are prepared to say, look, we want to make the money. We'd like to get rid all our competitors, and then we start distinguishing between they'd like to get rid of all of them. No, only five. No, one. And does that make a difference in whether you can bring a case or not? I frankly don't see --
04-433 +++$+++ 23394 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or, in -- in other words, your -- your targeted argument doesn't really make sense unless there is a family vendetta. I mean, I -- I want to make money. I don't care --
04-433 +++$+++ 23395 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice --
04-433 +++$+++ 23396 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- which of my competitors I'm -- I'm hurting unless I have some special reason to get one -- to get one -- one. Now, I thought that was your case.
04-433 +++$+++ 23397 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia --
04-433 +++$+++ 23398 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But maybe it's not.
04-433 +++$+++ 23399 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- what is alleged in the amended complaint is that in the Burroughs of Queens and the Bronx, these are the only two competitors. Only two. They are head-to-head competitors. We allege in the --
04-433 +++$+++ 23400 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. That is the only basis on which they're targeted. So if there had been 18 competitors in -- in the Bronx and Queens, then there would have been 18 targets. Right?
04-433 +++$+++ 23401 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Theoretically, yes.
04-433 +++$+++ 23402 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Then we're back in the soup.
04-433 +++$+++ 23403 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Theoretically. (Laughter.)
04-433 +++$+++ 23404 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Posner, in a case we cited in the footnote, talks about the concept of the intended victim where you blow up -- where the defendant blows up the airplane to kill A and he also kills B who's sitting next to him on the plane. That's the EDC case. We allege that the plane, so to speak, was blown up here specifically to get my client. That's the reason why they used the proceeds to open the competing location in the Bronx.
04-433 +++$+++ 23405 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How about your client's supplier? If your client -- if Ideal is selling less, then it's going to buy less from its supplier. So would the supplier also have a RICO claim?
04-433 +++$+++ 23406 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, I believe that when we begin talking about suppliers and creditors and bankers and employees, creditors, so to speak, they're one step removed. They are, respectfully, I believe in the position of SIPC in the Holmes case. We -- we don't have to go to that level in this case. Creditors, suppliers -- let's suppose that Ideal becomes insolvent as a result of this scheme. The creditors may step forward and believe that they have a RICO claim against the Anzas and National. I believe that they have to pass through the Holmes causation test, and it would be difficult based on the SIPC analysis.
04-433 +++$+++ 23407 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They're -- they're one more step removed. I don't know if they're one step removed. I mean, if there were no allegations of motive or family feud or targeting and all we know is that there are two competitors there and the one underpaid its taxes, is your case still viable?
04-433 +++$+++ 23408 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Yes, it is.
04-433 +++$+++ 23409 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it doesn't depend on motive or targeting or anything at all. It just depends on the fortuity of there being two competitors in a particular area.
04-433 +++$+++ 23410 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The lower Federal courts after Holmes have used the target concept and the intent concept to -- to inform, for lack of a better word, the Holmes analysis. They -- and the Second Circuit in this case used that as a shorthand to inform one of the three policy factors that this Court set forth in Holmes, which I believe was the third factor, which is the proper plaintiff. And the lower Federal courts, in these discrete body of cases involving competitors, like the Second Circuit in Commercial Cleaning, have looked to see whether the plaintiff is an intended victim of the scheme, a target, for lack of a better word. This is -- let me -- let me speak about the question of reliance, if I may. We don't see how reliance is an element of a civil RICO claim. It has no basis in law. We can't just pull it out of the air. It's not in 1964(c). It's not in 1962, which is the substantive violation. It's not in 1961, which defines racketeering activity and pattern. It's not in the mail and wire fraud statutes.
04-433 +++$+++ 23411 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you've cited the Solicitor General's brief --
04-433 +++$+++ 23412 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-433 +++$+++ 23413 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- earlier. The Solicitor General says it's inherent in the concept of proximate cause. In the absence of reliance, you don't have proximate cause.
04-433 +++$+++ 23414 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- yes, the Solicitor General said that. We happen to disagree with that part of it because they don't tell us where the reliance requirement comes from either.
04-433 +++$+++ 23415 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where it would come from would be it would be an alternative way of getting to, say, Justice Souter's test, and it couldn't -- I agree with you -- depend upon whether these are within the realm of people who are relying. But suppose you had a fraud where nobody had relied. You see, it was really a failed fraud, and you can get that under Federal law.
04-433 +++$+++ 23416 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-433 +++$+++ 23417 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or suppose you have a fraud where the only party that had relied was the government, in which case you don't need them for civil RICO. And the strong argument, I think, would be where that's the case, cut it off because of all the indirect problems that Holmes goes into. I'm not -- I'm not accepting it. I'm just trying --
04-433 +++$+++ 23418 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-433 +++$+++ 23419 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- to put it in what I think of as a strong form.
04-433 +++$+++ 23420 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand. Here, we -- we clearly allege and the Second Circuit found sufficient that there was third party reliance, mainly reliance by the New York Department of Taxation. That sufficed at common law. We have New York cases going back to the time of the Civil War, the treatise writers, the Restatement, the case from Maine involving -- that Justice Scalia mentioned involving the ship captain. This has been well settled for -- for many years.
04-433 +++$+++ 23421 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what is New York relying? I mean, they -- somebody -- does -- does the State or the Federal taxpayer rely on everybody who files a return that they -- they filed it honestly? Is that -- that -- I don't understand the sense in which a taxing authority relies on the return that's been filed.
04-433 +++$+++ 23422 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, I believe the law is it's either actual reliance or presumptive reliance. The taxing authorities actually rely or they are presumed to rely on the validity of the -- of the tax returns. The fact of the matter is that's what's alleged in our amended complaint and that is what the facts are in this case. It is -- and -- and if you look at the Solicitor General's brief in Bank of China, the Government cited this case with approval as an example of an appropriate use of third party reliance. And -- and I -- I submit to you that, while I disagree with the Solicitor General that reliance is an element whenever mail or wire -- I mean, for example, if the predicate acts here involved extortion, a Hobbs Act violation, violence in some form, we wouldn't be here talking about reliance. If it involved the payment of a bribe, we wouldn't be here talking about reliance. What is it about mail fraud and wire fraud that springs from the ground this concept of reliance? My point is I don't believe it has any basis in law, and I think this Court should say so. That's -- that's why we're here on the question presented. I think that this notion should be swept away because it has no basis in law. It's not in the statute. And this Court has found on several occasions that where someone seeks to raise a requirement, the organized crime requirement, the prior conviction requirement, this Court has said it's not in the statute. We can't engraft it onto the statute.
04-433 +++$+++ 23423 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Gee, I -- I find that extraordinary that -- I claim to have been defrauded by somebody. He makes a representation to me about the value of stock. I don't believe it. I really think it's ridiculous. Of course, the stock is not worth that. Okay? I buy it anyway, and I can sue even though I didn't believe him?
04-433 +++$+++ 23424 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under securities fraud, I believe that's different because in this case it's not a -- when you're dealing with competitors, you're not dealing with face-to-face misrepresentations.
04-433 +++$+++ 23425 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I -- I'm just talking about what the understood requirements of a fraud action were at common law. Mail fraud, any kind of fraud. Surely there has to be some reliance upon the fraud.
04-433 +++$+++ 23426 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At common law, there was a reliance requirement. When the mail fraud statute was written in 1872, it's an amalgamation of various common law crimes, some of which required reliance, some of which clearly did not. When we bring the mail fraud statute into RICO, it does not bring with it the baggage of a reliance requirement. And -- and securities fraud is gone as a predicate act for RICO. It's been gone for 11 years. Where does the reliance -- our point is the reliance requirement doesn't come from anywhere. It -- it's simply being engrafted onto the statute, and it doesn't belong there. That's -- that's our position. It must have some basis in law. It doesn't.
04-433 +++$+++ 23427 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why -- why do you say mail fraud does -- does not have with it the normal common law fraud requirement of reliance?
04-433 +++$+++ 23428 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The case -- the cases are uniform, including decisions from this Court, that a mail fraud case does not require the element of reliance. It doesn't exist in the statute. The -- it's the same mail fraud statute that's a predicate act for -- for RICO under section 1961.
04-433 +++$+++ 23429 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The place where it comes from is the idea that if, in fact, you have these monetary crimes, white collar kinds of crimes, money is at issue, and no one is hurt. You can proceed against a person under Federal law --
04-433 +++$+++ 23430 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-433 +++$+++ 23431 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- where no one is hurt. You catch it in the bud, for example, where no one is hurt. You don't want the possible class of plaintiffs to spread out into every competitor, into competitors' suppliers. It's a way of cutting off the potential class to people who are closer to any possible injury where, for example, there really wasn't any injury at all. So, I mean, that's the kind of argument being made for it, not that you find the word reliance somewhere in the statute.
04-433 +++$+++ 23432 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Justice Breyer, there has to be a place in the law for the three-party scheme.
04-433 +++$+++ 23433 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I just tried to say where -- where it was. It's a -- it's a way of -- with proximate cause, and that's how I think you have to deal with it. You have a case where there was reliance.
04-433 +++$+++ 23434 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-433 +++$+++ 23435 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The government.
04-433 +++$+++ 23436 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
04-433 +++$+++ 23437 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So what you'd have to say is why that's good enough.
04-433 +++$+++ 23438 +++$+++ TRUE +++$+++ MR. RODDY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it is good enough because it is -- it is a sufficient way to show causation. It is not necessary. It's one way to show causation. I agree with you. Third-party reliance is one way. That happens to be the way we will do it here at trial, if given the opportunity. Unless there are no questions, thank you.
04-433 +++$+++ 23439 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Frederick, you have 4 minutes remaining.
04-433 +++$+++ 23441 +++$+++ FALSE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd like to return to Justice Souter's hypothetical because I think that the point of price competition fits squarely within the Holmes case. If you were to take the fact of bankruptcy, the mere going bankrupt of the brokers in that case, the -- the effect of that on the customers who are attempting to bootstrap in the securities fraud fits perfectly here because the fraud here against the State of New York enables National allegedly to engage in price competition. But as you pointed out in your hypothetical, price competition is not a RICO violation. And using 1964(c)'s by reason of, the injury has to be by the RICO violation. Simply lowering prices or making their goods more economically affordable does not cause -- is not a RICO violation. The -- the RICO violation, if there is one here, is in the fraudulent underpayment of taxes to the State of New York. The SG's brief in the Bank of China case does, we acknowledge, make the suggestion about possible third party reliance, but it does not cite any decision of this Court. It cites two court of appeals cases, one of which is the decision below, which we argue was wrongly decided. The point that the SG, I think, was making was acknowledging that there are these circumstances, and I would advert to my earlier colloquy with Justice Scalia in which there are limited circumstances in which a third party can invoke the reliance. But that is ordinarily done through a relationship among the parties. The breadth of the Respondent's position here should not go uncommented upon. RICO is not an unfair competition statute. Yet, the answers to the hypotheticals about how many competitors would be able to bring and whether or not they were directly targeted and the cigarette hypothetical all point to the fact that, at bottom, their theory is that any action on the part of a defendant that leads to an indirect ability to engage in price competition would give rise to a RICO claim. And as we point out in our reply brief, there are literally millions -- just on taxes alone, millions -- of submissions by corporations that could be used by competitors if the direct targeting test is accepted by this Court as the predicate for a RICO claim. We submit that the floodgates should not be opened in that way, particularly given the fact that the difficulties of proving harm and damages are especially present here and that antitrust cases should not be shoehorned under the RICO statute. That is not what Congress intended. Finally, with respect to reliance, this Court in Beck v. Prupis held that civil conspiracy principles should be imported into the understanding of what a civil action under RICO should be permitted. And the common law is well settled that reliance is an element that is appropriate for it to be imported into the mail fraud predicate act here because the damages have to be shown by some type of relationship between the defrauded party and the defendant. If the Court has no further questions.
04-433 +++$+++ 23442 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Frederick. The case is submitted.
04-473 +++$+++ 23446 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in 04-473, Garcetti versus Ceballos. Ms. Lee.
04-473 +++$+++ 23448 +++$+++ FALSE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. Mr. Chief Justice, and may it please the Court: At its core, the First Amendment is about free and open debate on matters of public importance. It's about citizens' rights to participate in public debate and contribute their personal opinions and views whether they are mainstream or not. The first amendment is not, however, about policing the workplace. It is not about constitutionalizing the law of public employment. Nor should it be. Yet, if the Ninth Circuit's approach is accepted or adopted, this is what it will do. In this section 1983 action, a deputy district attorney prepared a disposition memorandum, First Amendmentpursuant to his prosecutorial duties, setting forth the reasons why, in his prosecutorial judgment, the criminal case that he was supervising was likely to be dismissed. The fact that the supervisor did not agree with the content of that memorandum should not give the plaintiff a constitutional right to challenge adverse employment decisions that he claims were in response to the product of that memorandum. There are no First Amendment interests that are served when public employees are allowed to perform assigned job duties in such a way as to the disagreement of the public employer. Essentially, what the --
04-473 +++$+++ 23449 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I --
04-473 +++$+++ 23450 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Ninth Circuit --
04-473 +++$+++ 23451 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I suppose the public might have an interest in knowing about this debate. I don't know if you can say there are no public interest served. It might be that there are other counterbalancing first -- interests, but I don't think you could say we have no interest in speech. This was -- this is a -- on its face, a rather interesting -- a rather interesting argument that they're -- that they're having.
04-473 +++$+++ 23452 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ When --
04-473 +++$+++ 23453 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They're interested in criminal law, criminal procedure, et cetera, et cetera.
04-473 +++$+++ 23454 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's our position that when speech by public employees cannot fairly be said to be speech as a citizen, then the Government should have a presumptive right to manage its personnel affairs and internal --
04-473 +++$+++ 23455 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that -- yes, that's something different. But your statement, that there's just no First Amendment interest --
04-473 +++$+++ 23456 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there's no core First Amendment values that are furthered when public employers have to justify employment decisions that they make on a routine basis.
04-473 +++$+++ 23457 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, why wasn't that equally true in Connick?
04-473 +++$+++ 23458 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the difference in Connick is that the employee -- the prosecutor in that actions spoke more closely with a citizen, and the Government -- -
04-473 +++$+++ 23459 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but I mean that's --
04-473 +++$+++ 23460 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- had --
04-473 +++$+++ 23461 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that's a fine characterization, but I'm not sure that that helps us. In Connick, the one subject of the speech that was held to be protected was the speech questioning political pressure to help in campaigns and so on. The issue here that would arguably favor protection is the issue of calling public attention to lying by police officers in criminal cases. And it seems to me that the -- that if there's a public interest in political pressure, there's a public interest in mendacity in law enforcement.
04-473 +++$+++ 23462 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if the employee is required to investigate or report that kind of conduct pursuant to their normal duties of employment, then that is speech that the employer should absolutely or presumptively have an ability to monitor.
04-473 +++$+++ 23463 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, yes, but why?
04-473 +++$+++ 23464 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's the difference, not the lack of public interest --
04-473 +++$+++ 23465 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's --
04-473 +++$+++ 23466 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-473 +++$+++ 23467 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that you're --
04-473 +++$+++ 23468 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- absolutely right.
04-473 +++$+++ 23469 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- pointing to, is that in one case he is making this statement as an employee; and you say the employer, if it's a stupid statement, ought to be able to fire him for it. In --
04-473 +++$+++ 23470 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-473 +++$+++ 23471 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the other case, he's making the statement as a member of the public. And what the First Amendment is all about is that we allow stupid statements to be made. Right?
04-473 +++$+++ 23472 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it's not part of -- if it's -- if it's not part of your core job duties that you -- that employers should evaluate.
04-473 +++$+++ 23473 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but it may well -- I guess the point that I'm trying to get at -- and it goes back to your original public-interest issue -- is, let's assume -- as Justice Scalia's hypo had it, let's assume that the statement made by the employee on the subject within job duties -- case like this one -- is, in fact, a "stupid statement." Let's assume it's wrong, it's inaccurate, whatnot. The issue is not whether an employer, it seems to me, should, if that turns out to be the case, be able to fire. The issue, it seems to me, is whether, if it is not stupid, it should be totally unprotected, so that the employer could do anything, even if it's an accurate statement. And my understanding is that your argument on public interest was an argument that says, even if it's accurate and they were lying and so on, that there should be no protection. Am I -- and do I understand you correctly?
04-473 +++$+++ 23474 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, our position is, whether or not the prosecutor in this case made an accurate statement during the performance of his job -- so, in other words, if his disposition memorandum -- if the employer accepted it and agreed with it, and the case didn't go any further, there wouldn't be a basis of First Amendment, because normally he is acting pursuant to his job duties and it's up to the employer to evaluate whether or not he's adequately performing those job --
04-473 +++$+++ 23475 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Sure, but take --
04-473 +++$+++ 23476 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- duties.
04-473 +++$+++ 23477 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- take the case in which the employee says, "It was accurate." The employer says, "No, it was stupid. You got everything wrong." I take it, in -- your position is that regardless of whether the employee got it right or not, there shouldn't be protection, because it's within job duties. Is --
04-473 +++$+++ 23478 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. It --
04-473 +++$+++ 23479 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that correct?
04-473 +++$+++ 23480 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- should not be protected under the First Amendment.
04-473 +++$+++ 23481 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
04-473 +++$+++ 23482 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's not to say that the public employer is free from being challenged with regards to the employment decision. It may be a matter for the employee to seek, through the grievance procedure, that -- like Mr. Ceballos did initially, or even pursue it to civil service remedies. And those are the type of decisions that the personnel in those departments are more ably, I think, to decide.
04-473 +++$+++ 23483 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or he could go public, I assume. He could say, "I got fired for saying this. And this was true." Right? Take it to the press. The press would love it.
04-473 +++$+++ 23484 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If his job --
04-473 +++$+++ 23485 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right?
04-473 +++$+++ 23486 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- is not -- if that speech was not required to be kept --
04-473 +++$+++ 23487 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm assuming it was --
04-473 +++$+++ 23488 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- internally.
04-473 +++$+++ 23489 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- not required to be kept confidential.
04-473 +++$+++ 23490 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if he -- if it's part of his job to speak publicly, then he has no -- things that are said publicly in the performance of official responsibilities have no First Amendment protection?
04-473 +++$+++ 23491 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In our view, no. If it's a job -- if the public employee's assigned job duties is to, on behalf of the Government or the employer, speak to the public about certain things that are going on in the office, and he happens to get disciplined for it, that wouldn't pass our step.
04-473 +++$+++ 23492 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, what if the employer tells the employee to go out and lie? There's no First Amendment protection if the employee, instead, tells the truth?
04-473 +++$+++ 23493 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't know if that's a -- if that's a detailed enough hypothetical. I mean, if the employee's core job duties are to report X, Y, and Z, and that employee goes out to the public and reports X, Y, Z, E, and F --
04-473 +++$+++ 23494 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, no, that's not --
04-473 +++$+++ 23495 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I think that's --
04-473 +++$+++ 23496 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that's not -- that's not the hypothetical. So, suppose that a supervising district attorney tells the deputy district attorney, "Go in and make a misrepresentation to the court, or conceal evidence," or whatever --
04-473 +++$+++ 23497 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the question would be if he's --
04-473 +++$+++ 23498 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- and he refuses to do that, or he goes in and he says the opposite, he tells the truth, and he's fired. What result?
04-473 +++$+++ 23499 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think the plaintiff could argue that, "That's not my core job duties. My job duties is to" -- if it's a prosecutor, "is to make statements" --
04-473 +++$+++ 23500 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, so --
04-473 +++$+++ 23501 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- "pursuant to" --
04-473 +++$+++ 23502 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- so you're saying that there's an exception to your rule, so that if, in this case, he has a -- he has a defense if he said, "Well, it's my duty to call it as I see it"?
04-473 +++$+++ 23503 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely --
04-473 +++$+++ 23504 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then --
04-473 +++$+++ 23505 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- not.
04-473 +++$+++ 23506 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, then, if that's so, you ought to remand this case.
04-473 +++$+++ 23507 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, sure you'd agree with that, if it's his duty to call it or -- just as it's the duty of a -- of a lawyer not to lie to the court. If there was a similarly clear legal duty for him to say something, you'd say that was part of his job description, right?
04-473 +++$+++ 23508 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be the required assignments of his job.
04-473 +++$+++ 23509 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and I suppose, in this case, in the hypothetical we propose, that the California courts and the California bar would have disciplinary mechanisms against the senior attorney who hypothetically told the junior attorney to mislead.
04-473 +++$+++ 23510 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that would be an issue of fact.
04-473 +++$+++ 23511 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does California have, or have not, disciplinary procedures in the hypothetical case where a senior attorney who tells a junior attorney lie to the court --
04-473 +++$+++ 23512 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They do.
04-473 +++$+++ 23513 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right.
04-473 +++$+++ 23514 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What is the --
04-473 +++$+++ 23515 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what is it?
04-473 +++$+++ 23516 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What is the California remedy? Let's say his boss says, "Don't turn over Brady materials."
04-473 +++$+++ 23517 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the employer goes ahead and turns it over?
04-473 +++$+++ 23518 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-473 +++$+++ 23519 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the boss makes a determination that, "This is not Brady materials. I don't want that disclosed," and the employee goes ahead and discloses it, our position is, that would not be protected First Amendment speech.
04-473 +++$+++ 23520 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about -- you were talking about public speaking. There was, as I remember, a talk that was given to the Mexican-American Bar Association, and that was not something that his employer required him to do, but he --
04-473 +++$+++ 23521 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it wasn't. And it's not part of this lawsuit, because there's no dispute that the communication at issue in this case is that disposition memorandum that he prepared purely pursuant to his prosecutorial duties.
04-473 +++$+++ 23522 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But would have a 1983 case if he were disciplined or disadvantaged in the workplace because of the talk that he gave to the Mexican-American Bar Association in which he criticized DA office policies?
04-473 +++$+++ 23523 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Then our position is, it gets past step one, because it's not normally something that a prosecutor is required to do, and it would be subject to a balancing --
04-473 +++$+++ 23524 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Pickering balancing, I take it.
04-473 +++$+++ 23525 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-473 +++$+++ 23526 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I thought -- correct me if I'm wrong, just as a matter of fact -- I thought his 1983 claim listed the speech to the Mexican-American Bar Association as one of the reasons that he was demoted, or whatever it was, transferred.
04-473 +++$+++ 23527 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was initially alleged, but, through the course of discovery, the focus of it was a disposition memorandum, because by the time he went to the Mexican-American Bar Association, he had already been disciplined, so there is no causation between his public speech to the Mexican Bar Association and the disciplinary actions that were --
04-473 +++$+++ 23528 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the --
04-473 +++$+++ 23529 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- are at issue.
04-473 +++$+++ 23530 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the focus may have changed, but, I mean, he hadn't dropped the -- he hadn't dropped the claim that that was one of the causes --
04-473 +++$+++ 23531 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in --
04-473 +++$+++ 23532 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- of the --
04-473 +++$+++ 23533 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in essence, he did, when we --
04-473 +++$+++ 23534 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Did he?
04-473 +++$+++ 23535 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- when we went to the summary judgment motion. And that's why the district court was very clear that the issue --
04-473 +++$+++ 23536 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
04-473 +++$+++ 23537 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in this case was a communication in the disposition memorandum. And that was -- it was undisputed that that was purely pursuant to his prosecutorial duties --
04-473 +++$+++ 23538 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The court --
04-473 +++$+++ 23539 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and --
04-473 +++$+++ 23540 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the court of Appeals did --
04-473 +++$+++ 23541 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
04-473 +++$+++ 23542 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the court of Appeals specifically did not address the Mexican-American Bar Association speech. It focused only on the memorandum, correct?
04-473 +++$+++ 23543 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-473 +++$+++ 23544 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you concede that's Pickering balancing, anyway.
04-473 +++$+++ 23545 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in -- to the extent that he's alleging that if that's -- "I went to the Mexican-American Bar Association, and I alleged -- or I made statements that there were some improprieties in the district attorney's office," that would probably get past step one and the matter of public concern, and then the question would be whether or not his interest in speaking as a citizen outweighed the interests of the Government.
04-473 +++$+++ 23546 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But let me -- let me raise this question. If, in this case, he gets past step one because of the Mexican Bar Association speech, and if, as you suggested in answer to a question a little while ago, that anybody could go public and get at least past step one of Pickering, what is to be gained by the extremely -- well, strike the "extremely" -- what is to be gained by the restrictive view that you take that if he doesn't go to the Bar Association, or doesn't go public, there's no protection at all? In other words, it seems to me that the public is being protected in a way subject to an immediate end run.
04-473 +++$+++ 23547 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think what Your Honor is really asking is, if the plaintiff in this case had taken his disposition memorandum, and, rather than give it to his supervisor, which what he -- what he was required to do, he went to the public and gave it to them on a pending case, I don't necessarily think that would be protected under Pickering, as well.
04-473 +++$+++ 23548 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But what if he simply goes to the public and says, "Look, there's Brady material here, and it should be turned over, and, instead, my boss is telling me to suppress it." That wouldn't be turning over his work product. And I took it, from what you said earlier, that, in that case, you would say at least he gets pasts step one of Pickering for the --
04-473 +++$+++ 23549 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, he certainly --
04-473 +++$+++ 23550 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- newspapers --
04-473 +++$+++ 23551 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- wouldn't be speaking in his capacity as a prosecutor, but that doesn't necessarily mean that his interests would be outweighed by the employer's interest. In --
04-473 +++$+++ 23552 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, he might -- he might ultimately lose, just the way, on all issues but one, the employee in Connick lost. That's quite true. But at least --
04-473 +++$+++ 23553 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
04-473 +++$+++ 23554 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- there would be a claim to go through the balancing --
04-473 +++$+++ 23555 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in --
04-473 +++$+++ 23556 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- exercise.
04-473 +++$+++ 23557 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in some respects, if you're talking about job-required speech that you are -- part of those duties, and the function, is to keep it internally until at least there's some decision by the supervisor, and, rather than do that, you send it to the press or leak that information out, I think a governmental disruption in efficiency can be presumed there. So, I don't think it's as -- I don't think it's as clear that that -- that Mr. Ceballos would have ultimately prevailed under the balancing. I mean, if he had taken the --
04-473 +++$+++ 23558 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-473 +++$+++ 23559 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the speech externally, I think there -- that he ultimately would have lost, as well --
04-473 +++$+++ 23560 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, I understand your point.
04-473 +++$+++ 23561 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- because there is --
04-473 +++$+++ 23562 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're not saying he would win on Pickering balancing, but he would at least get to the point of going through the balancing exercise.
04-473 +++$+++ 23563 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And ultimately the result would be, there's no protected --
04-473 +++$+++ 23564 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Maybe.
04-473 +++$+++ 23565 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- First Amendment speech.
04-473 +++$+++ 23566 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-473 +++$+++ 23567 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How do you go about determining whether something falls within somebody's job duties? How specifically does that have to be set out?
04-473 +++$+++ 23568 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it's a function of the person's job -- assigned job duties. So, the -- you look at the speech at issue. And here is -- it's a disposition memorandum that was purely pursuant to what the -- what his duties required. He's -- it's normally a function that the employer would take into consideration for things like promotions --
04-473 +++$+++ 23569 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you have to look at --
04-473 +++$+++ 23570 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- or demotions.
04-473 +++$+++ 23571 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you have to look at a job description? And does it have to be listed specifically in a job description? Could there ever be things that it's understood that are things that any employee ought to be concerned about, such as very serious wrongdoing within the office?
04-473 +++$+++ 23572 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I mean, there could be situations where there's a general code of conduct by all employees; you know, employees who feel that they've been, you know, harassed, sexually harassed, or feel that others are, should report that. But that may not be that person's assigned job duties. In other words, that person is not assigned to investigate and report those type of things.
04-473 +++$+++ 23573 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course, if --
04-473 +++$+++ 23574 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
04-473 +++$+++ 23575 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- if you adopt a principle that every employee ought to -- ought to report to his superiors known wrongdoing by his co-workers, and that that's part of his job duties, you -- then you always cut off the ability of that employee to go public, right? I mean, that's a -- sort of an expanding category, "job duties."
04-473 +++$+++ 23576 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it would be assigned job duties, things that normally the employer would take into consideration for things like terminating or promoting. I'd like to reserve the remainder of my time for rebuttal.
04-473 +++$+++ 23577 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Ms. Lee. Mr. Kneedler.
04-473 +++$+++ 23579 +++$+++ FALSE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Much of the work of public employees is performed by speaking or writing, and much of that work concerns matters of public interest. Under the Ninth Circuit's decision, public employees engaged in such work have at least a presumptive First Amendment right to perform their jobs as they see fit. That conclusion rests on a fundamentally mistaken view of the First Amendment. When the Government pays for somebody to do its work, it has an absolute right to control and direct the manner in which that work is performed. That is a basic rule of agency law, and insofar as Federal employees are concerned, it's a basic rule of our constitutional structure. Article II of the Constitution gives the President the power and responsibility to take care that the laws be faithfully executed. Effectuation of that power, and effectuation of the principle of accountability that it embodies, requires that supervisors in the executive branch be able to control and direct the work of their subordinates. The First Amendment, which was adopted just a few years after the Constitution, was not meant to interpose the First Amendment in that relationship between supervisor and subordinate or otherwise to regulate the internal affairs of the executive branch. That is the function of civil service laws adopted by the legislature and internal executive branch directives taking into account the relative costs and benefits of certain types of regulation. And finally --
04-473 +++$+++ 23580 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, you take the position, then, that -- going to the earlier hypothetical that somebody brought up, that, say, in a Brady case, if the -- if the Federal prosecutor believes there was Brady material that -- and let's assume he's correct, just to make it a simple case -- that there's Brady material to be turned over, and the U.S. attorney says, "Do not turn the Brady material over," that if the -- if the U.S. -- if the -- if the prosecutor tells this to a court, that he can be disciplined?
04-473 +++$+++ 23581 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there would, no doubt, be other restrictions. Justice Kennedy mentioned ethical rules. Under the Federal whistle-blower statute --
04-473 +++$+++ 23582 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, I'm sure --
04-473 +++$+++ 23583 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- there would --
04-473 +++$+++ 23584 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that's so --
04-473 +++$+++ 23585 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- be a restriction.
04-473 +++$+++ 23586 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- but what about, you know, the basic First Amendment --
04-473 +++$+++ 23587 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The First Amendment would not be the -- would not be the source of protection. Whether there would be some argument that, if the employee could not be fired, it would be an unconstitutional condition to require him to put his job at peril for committing a due process violation or something like that, whether there would be a claim like that, that would be a different matter. But the First Amendment --
04-473 +++$+++ 23588 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But why would you recognize a due process violation if you wouldn't recognize a First Amendment violation?
04-473 +++$+++ 23589 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the First Amendment does not address speech that an employee undertakes in the performance of his duties.
04-473 +++$+++ 23590 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, neither does due process.
04-473 +++$+++ 23591 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. No, I was just suggesting there would have to be some unconstitutional condition. Well, the due process --
04-473 +++$+++ 23592 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but to get to the unconstitutional condition, wouldn't you normally look to the First Amendment?
04-473 +++$+++ 23593 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My point is that the due process -- due process clause does address the conduct at question, which is the requirement that exculpatory material be turned over to the defendant. And so, the question is that the employee would be put in a position where he would -- where he would be instructed not to perform what he understood to be a constitutional violation. I think most civil service laws, most ethical rules, would take care of it. And, as I mentioned, the Federal whistle-blower statute, in 2302(b)(9), I think it is, has a provision that protects employees who refuse --
04-473 +++$+++ 23594 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And --
04-473 +++$+++ 23595 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to obey an order --
04-473 +++$+++ 23596 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- perhaps, 1983, if you go the unconstitutional condition argument, and certainly in 1983 -- or arguably a civil rights prosecution against the senior who ordered --
04-473 +++$+++ 23597 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, there would be -- there would be those sorts of restrictions. My only point is that the First Amendment is not addressed to speech or writing that an employee undertakes in the -- in the -- in the course of his official duties. This --
04-473 +++$+++ 23598 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But isn't there this -- isn't there this anomaly in the position that you're advocating? It would seem to me that categories of employee speech that are most likely to be disruptive would be public speech that's outside of the employee's duties, or internal speech that is outside of the employee's duties. How much of a -- of a problem is it that employees are bringing First Amendment claims based on largely internal speech that falls within their own job duties?
04-473 +++$+++ 23599 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that would be a huge problem, because it would effectively constitutionalize the day-to-day interactions between supervisors and subordinates within the Government, and put the Federal Courts in charge of overseeing that. Even if these cases might ultimately be disposed of on summary judgment, there would be discovery, there would be the burdens of the litigation. And in a case like this, where the -- where the Government is taking the position that the -- these actions were not even taken against the employee because of this disposition memorandum -- they say they had perfectly valid other reasons -- but this case exemplifies what the problem would be, is that the employee could identify something that he said or did in the course of his duties that involved speech and say, "That's the reason that I was disciplined."
04-473 +++$+++ 23600 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But are these going to be difficult cases under Pickering balancing? You have the case like this, where the employee, let's say, says to the prosecutor, "I think the case should be dismissed." The prosecutor says, "Well, I'm the supervisor, and I disagree. We're not going to dismiss the case." Typically, the employee wouldn't be disciplined for doing something like that. Now, if the employee persists and, you know, is insubordinate, there would be another basis for taking disciplinary action.
04-473 +++$+++ 23601 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but in this case, if we look at what the Ninth Circuit said, for example, when it got to step two, it said that the employee could only be disciplined if the -- if the agency could show that there was disruption or reckless disregard for the truth. But when somebody is actually carrying out his job duties -- not engaged in outside activities that may reflect back and be disruptive, but engaged in the job duties themselves, the employer has a right to insist on more than that the employee not be disruptive or reckless; he has a right to insist that -- the employer has a right to insist that the employee affirmatively contribute to the work of the office and exercise good judgment. And the -- and the supervisor has to be in a position to make judgments about whether that judgment was good or not.
04-473 +++$+++ 23602 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, is this going to lead to difficult problems in determining what falls within the job duties of a particular employee?
04-473 +++$+++ 23603 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't -- I don't think it -- I don't think it will, and certainly no more problems than the -- than this Court has wrestled with, and the lower courts have, in terms of what's a matter of public concern. I think it's a common inquiry to determine what a person's job duties are. And I think it's a very important place to have a clear line, just as there is a clear line with respect to matters of public concern.
04-473 +++$+++ 23604 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose, in the memo here, the assistant district attorney had said, "I think that this deputy lied, and I think the deputy should be fired." Now, whether the deputy should be fired or not probably isn't within the job duties of this -- of this employee. So, would that be outside of your rule?
04-473 +++$+++ 23605 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I think it would probably be inside the rule. I think -- I would think, particularly for a -- for an assistant DA to make a recommendation about the consequences of illegal conduct would be within his -- within his job duties. I also want to say that this Court's decision in Pickering, and in that line of cases, I think, fully support this, because, as this Court pointed out in Connick, this Court has repeatedly stated that the protection afforded by Pickering is for action taken as a citizen on matters of public concern. That "as a citizen" phrase was reiterated in virtually all of this Court's cases in the area. And the underlying principle is that --
04-473 +++$+++ 23606 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But does the Givhan case fall within that?
04-473 +++$+++ 23607 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes, it does. But all the Court addressed in Givhan was the question of whether, if you take your concerns not publicly to the newspaper, but express them to the -- in that case, the principal, that you don't lose First Amendment protection. But the Court did not address the question of whether those comments were within the scope of the employee's duties. And I think a reading of lower court's decision in Givhan indicates that they were not. She was an English teacher, and she was commenting to the principal about employment practices at the school. That would not have been within the scope of her employment. And then --
04-473 +++$+++ 23608 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if she was the vice principal, that would be -- then it would come --
04-473 +++$+++ 23609 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm --
04-473 +++$+++ 23610 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- within your --
04-473 +++$+++ 23611 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It might be -- it might be closer to that, yes. I think, again, it would depend if she was -- if she was vice principal for administration or something, I think -- I think it clearly would. But the purpose of the Pickering line of cases is to protect employees when they go outside of their -- of their job, that they shouldn't be penalized for having taken a job to be able to participate in public affairs, as the Court put it in Pickering. That does not suggest that the -- that the employee brings the First Amendment into the job workplace and can use it as a shield or a sword in the day-to-day interactions with his supervisors, and to do so would constitutionalize, as I said, the day-to-day operations of employment. And this is a classic example, where somebody wrote a disposition memorandum in the course of --
04-473 +++$+++ 23612 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you're suggesting --
04-473 +++$+++ 23613 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in the course of those activities.
04-473 +++$+++ 23614 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that a remark made internally could not provide the basis for discipline, but saying exactly the same thing publicly could. I mean -- or vice versa.
04-473 +++$+++ 23615 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if it's made publicly in the capacity as a citizen, assuming the public -- it isn't a speech that he's making in the course of his duties -- if he writes something to the press, he's speaking in his capacity as a citizen. That doesn't mean that it would be constitutionally protected; it simply means that you get to step two of the Pickering balancing, because he's not carrying --
04-473 +++$+++ 23616 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I'm assuming --
04-473 +++$+++ 23617 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- out the job duties.
04-473 +++$+++ 23618 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- a case in which it would be constitutionally protected. But you're saying if he says it publicly -- assuming we pass the balancing test -- but if he said the same thing to his boss directly internally, no protection.
04-473 +++$+++ 23619 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, that -- at least not if it's part of his job duties. And I would think --
04-473 +++$+++ 23620 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which is a --
04-473 +++$+++ 23621 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- ordinarily in that --
04-473 +++$+++ 23622 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- rule that would sort of encourage people to go public rather than --
04-473 +++$+++ 23623 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I mean --
04-473 +++$+++ 23624 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- exhaust their internal remedies.
04-473 +++$+++ 23625 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Two things about that. When he's saying it internally, he's doing his job. When he's going externally, he may be violating office policies.
04-473 +++$+++ 23626 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Kneedler. Ms. Robin-Vergeer.
04-473 +++$+++ 23628 +++$+++ FALSE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Petitioners contend that the First Amendment provides no protection when the Government silences or punishes a public employee for speaking up on a matter of vital public importance in the course of performing his job, even if the Government has no legitimate employment reason for doing so. Such a sweeping rule would stifle speech that lies at the very core of the First Amendment. Recognizing Richard Ceballos's claim in this case would not convert every public employment dispute into a constitutional case.
04-473 +++$+++ 23629 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think it's probably a bit much to say that the core of the First Amendment is internal employee grievances or speech. And I think the concern on the other side is that you may -- as a lawyer, you may have a view of what the -- what Brady requires. Your superior may have a different view. And just because that disagreement exists doesn't mean that you have a constitutional right to continue to voice your view when your superior has reached a different decision.
04-473 +++$+++ 23630 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree with that. The First Amendment doesn't bar the Government from disciplining employees for insubordination or poor job performance or for continuing or persisting in a matter once their supervisor's told them to stop. Where an adverse employment action's motivated by such legitimate employment reasons, there's no First Amendment violation. But the Petitioners here have not claimed any legitimate interest in punishing Ceballos for what he said, nor have they made the case --
04-473 +++$+++ 23631 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, their -- the interest they claim that of supervising their employees.
04-473 +++$+++ 23632 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is not correct. In this case, the Petitioners --
04-473 +++$+++ 23633 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, that's the interest that we're concerned with, is of having the Government have the capacity to be able to control the speech of its employees so they could have a consistent policy and so that it can explain to the people what it's doing.
04-473 +++$+++ 23634 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They've articulated that as an abstract principle that has no application on the facts of this case, because on the --
04-473 +++$+++ 23635 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why --
04-473 +++$+++ 23636 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- facts of -- sorry.
04-473 +++$+++ 23637 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Go on. I'll let --
04-473 +++$+++ 23638 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ On the facts of this --
04-473 +++$+++ 23639 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- let's hear your --
04-473 +++$+++ 23640 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- case, they never claim that Ceballos did anything improper, that he exercised poor judgment, that he was insubordinate. They just said, "We didn't retaliate." That was their defense of this case. And that presents a fact question for the jury.
04-473 +++$+++ 23641 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you're the one that's asking us to adopt a rule. And I'm suggesting to you that there is an interest that's sacrificed by the rule that you request, and that is the Government's interest in regularity and consistency of its speech. They don't have to claim it on a case-by-case basis. You're the ones that are asking us to make this rule.
04-473 +++$+++ 23642 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect, I disagree with the characterization, because -- well, there are three reasons why Petitioners proposed per se rule, which would be unwise. And it is they who are asking for a per se exclusion where the Court has not previously adopted a per se exclusion. And the reason why it's unwise is that it will chill speech of paramount public importance by prosecutors and many other public employees. It will force many public employees to go public if they want any chance of constitutional protection, and it will lead to arbitrary and unworkable linedrawing regarding whether an employee's speech falls --
04-473 +++$+++ 23643 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
04-473 +++$+++ 23644 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- within his job duties.
04-473 +++$+++ 23645 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because public employee unions are so weak? They're the only strong unions left in the country. I mean, really. [Laughter.]
04-473 +++$+++ 23646 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You need the Constitution to protect employees against things of this sort?
04-473 +++$+++ 23647 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely. The Court has recognized, in Pickering and in other cases, that the threat of dismissal from public employment is a potent means of inhibiting speech. Public employees who speak up within their workplaces about police brutality, falsification of evidence, disaster preparedness, and so on, should not be compelled to shade the reports and the recommendations and tell their superiors only what they want to hear or else face reprisal for their candor.
04-473 +++$+++ 23648 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but neither should a superior be required to get a report from a subordinate that he thinks is way off base, just a result of poor judgment, thinking that there -- that there was a violation here, when there -- when there obviously wasn't, or using facts that were not sufficiently established in order to claim such a violation. Surely, the employer is entitled to say, "On the basis of this report, which you gave me, you're fired."
04-473 +++$+++ 23649 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's absolutely --
04-473 +++$+++ 23650 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or -- you know, or --
04-473 +++$+++ 23651 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's absolutely correct. And if, in this case, that judgment had been made by Ceballos's employer, that he had exercised poor judgment, that he was rash or reckless in his conclusions, then the employer would have had a valid basis for taking an adverse employment action against him. But that is not what happened in this case.
04-473 +++$+++ 23652 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but you're just hiding behind the fact that they claimed that it wasn't in retaliation. Your assertion still puts them in the position of having to defend a constitutional claim on a case-by-case basis every time there's a disagreement between a subordinate and a superior about, as in this case, what Brady requires.
04-473 +++$+++ 23653 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, actually, the disagreement -- there wasn't any disagreement. He came forward and exposed police misconduct. And his supervisors were on his side.
04-473 +++$+++ 23654 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There was a disagreement about whether or not his memorandum accurately reflected, in an appropriate way, what was at issue there. There was a disagreement about the content of the allegations.
04-473 +++$+++ 23655 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think it's important, for, maybe, purposes of this, to iron this out, but I -- respectfully, I don't agree with that characterization, because, even in the resolution of the grievance internally, the -- what they found in the grievance was that they took no adverse action against him because of what he said --
04-473 +++$+++ 23656 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That doesn't --
04-473 +++$+++ 23657 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in connection with this case.
04-473 +++$+++ 23658 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That isn't the point. I think the point is, at least for -- I think point is who is going to decide whether there was some justification here. And I read this memo. I thought that the DA had a pretty good claim, that the police didn't do anything wrong. And there's also an argument they did. All right. So, who decides that kind of thing? A constitutional court or a State, under its protection laws or whistle-blower statutes?
04-473 +++$+++ 23659 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No --
04-473 +++$+++ 23660 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And the argument that you have to face, I think, is that it will be very disruptive to have constitutional judges dive into this, when there are so many other remedies, and where the very act of their doing it, allowing discovery, allowing court cases, allowing juries, itself, will disrupt the Government. Now, if you say they give you no protection at all, I want to hear what you have to say as to what the standard is to separate the sheep from the goats.
04-473 +++$+++ 23661 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. There are a few points embedded in the question, and I'd like to take them one by one. With respect to the standard, the standard is, if the employer makes a judgment that the public employee has not performed his or her job properly or has been insubordinate, so long as that judgment isn't based on a censorial type motive, like, "We don't tolerate criticism of the sheriff's department," something like that, then the employer's judgment prevails. And I'm not suggesting that a district -- Federal district Court has license to second-guess that judgment, so long as that judgment's actually the judgment that was made. I mean, there's a pretext analysis that might be made in this case --
04-473 +++$+++ 23662 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The only cases that would go into court are cases where the employer says, "I have no reason at all for firing him"?
04-473 +++$+++ 23663 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in a case like this, the county never came forward --
04-473 +++$+++ 23664 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But that's because --
04-473 +++$+++ 23665 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and said that --
04-473 +++$+++ 23666 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- they think they have a better claim on the other part. I mean, if -- even if you're right in this one, I promise you, the next one will come along, and they'll say, "Of course we had a good reason for firing him. One, we didn't fire him for that reason. Two, if we did, we would have been justified," or whatever. So --
04-473 +++$+++ 23667 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-473 +++$+++ 23668 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- if your standard is, the only cases that go into court under the First Amendment are cases where the employer says, "I had no basis for doing anything to him whatsoever," then I think there will be few such cases, though you might convince me that that standard --
04-473 +++$+++ 23669 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-473 +++$+++ 23670 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- wouldn't do any harm.
04-473 +++$+++ 23671 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that's why I said that it would be subject to a pretext analysis. The employer, of course, might come back and -- and, post hoc, come up with a rationale for --
04-473 +++$+++ 23672 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that'll --
04-473 +++$+++ 23673 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- why they did --
04-473 +++$+++ 23674 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- always be --
04-473 +++$+++ 23675 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- what they did.
04-473 +++$+++ 23676 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the claim. That'll always be the claim. They'll always say, "Oh, yes, you said you did it because of that, but you did it because you're retaliating" --
04-473 +++$+++ 23677 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You know --
04-473 +++$+++ 23678 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "for this or that." I mean --
04-473 +++$+++ 23679 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- we're not operating in uncharted territory here. The rule that the Ninth Circuit has adopted has been the prevailing rule in the Circuits for years. And I just want to clarify something that came up in the last argument, where I cited some very rough statistics about the numbers of cases. There's a rough -- a rough cut at the universe of public employee free-speech cases, of which this type of case, where the speech is part of the job, is only a tiny subset. These cases are not dominating the courts, and you don't have all the litigation that is being --
04-473 +++$+++ 23680 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that because --
04-473 +++$+++ 23681 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- claimed would occur.
04-473 +++$+++ 23682 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- they're addressed -- is it -- they're addressed under State and Federal whistle-blower laws, or --
04-473 +++$+++ 23683 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, that's -- actually gets me back to the second part of Justice Breyer's question, which is protection. And it's a complete hit-or-miss situation across the country. And just to respond to something that was said about the Federal Whistle-blower Protection Act, that statute has a gaping hole in it, as construed by the Federal Circuit, because the Federal Circuit has construed it to exclude protection for speech that is part of the employee's normal duties. So, in any case that would come up with a Federal employee, leaving aside what judicial remedies are even available for a Federal employee in this area, the Federal employee would be largely unprotected by the Federal Whistle-blower statute. And with respect to what the state of law is across the country, it's complete patchwork. Different types of speech are protected, there's huge holes in coverage. There is no --
04-473 +++$+++ 23684 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What about California, which was the State where this episode occurred? Was -- - I think you mentioned that he did not make a claim under the State statute.
04-473 +++$+++ 23685 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. And it's sort of interesting that neither the Petitioners, the United States, or any of the amici have cited a California whistle-blower statute that would have been applicable to this claim. I -- frankly, I think that there was one that potentially might have been applicable, not cited by any of the parties, but the law was in flux, and it really wasn't all that clear. And that's -- and California's probably one of the better States, in terms of whistle-blower protections, compared to -- and we're talking about a local government employee, and the odds of protection -- it's just hit or miss across the country.
04-473 +++$+++ 23686 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you saying --
04-473 +++$+++ 23687 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The --
04-473 +++$+++ 23688 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you -- are you saying the California courts would tolerate a situation where a member of the bar told one of his employees to misrepresent to the court?
04-473 +++$+++ 23689 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you're --
04-473 +++$+++ 23690 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The California courts --
04-473 +++$+++ 23691 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- referring back to hypothetical --
04-473 +++$+++ 23692 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The California courts are certainly not tolerating -- and, in fact, this case was heard by a California court, and the -- and the judge, as I read the record -- it's not altogether clear -- seemed to agree with the -- with the police officers.
04-473 +++$+++ 23693 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The motion to reverse that was heard by a State Court judge was not run -- that hearing was not run by Ceballos. It was run by the defense lawyers in that case. And Ceballos's testimony was limited by the prosecution's own objection. So, you can't judge anything from how that disposition came out, whether the State Court judge thought it was -- the police had lied or not lied. And you can't judge anything by the way that hearing was conducted. But I want to return to why it's so important that the Court not shrink First Amendment activity in the workplace. It is of the utmost importance that public employees, who internally report matters of public concern, enjoy First Amendment protection, and for two basic reasons. First, the public needs to have a Government of public servants who do their jobs honestly and with integrity, and not yes-men afraid to tell public officials the bad news. A per se exclusion of First Amendment protection creates a powerful disincentive for deliberation within Government. The last time, I cited an example of a FEMA employee who was punished for saying to a supervisor that FEMA wasn't ready to handle the next hurricane. But the facts of this case are just as compelling, denying a First Amendment protection for prosecutors who expose police misconduct. And his disposition memo wasn't just a prediction about whether -- how a judge would rule on a motion; he exposed police misconduct and it --
04-473 +++$+++ 23694 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's --
04-473 +++$+++ 23695 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- was so --
04-473 +++$+++ 23696 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that's not -- that's not established. That's not established at all. His supervisor obviously thought he didn't --
04-473 +++$+++ 23697 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, I didn't mean to suggest that -- the truth of that allegation may be open to question, but what is not open to question --
04-473 +++$+++ 23698 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but it's a very serious allegation for somebody who's in the position that this employee was to make against police officers. And as I understood the case, the supervisor said, "Wow, I don't want loose cannons around down there who are accusing perfectly honest and respectable police officers of violating the law." Now, that --
04-473 +++$+++ 23699 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
04-473 +++$+++ 23700 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- hasn't been proven, either. But --
04-473 +++$+++ 23701 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. I --
04-473 +++$+++ 23702 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that is certainly a possibility. And I do not want to exclude the ability of a supervisor to fire somebody, if that possibility exists, without having to go through extensive litigation.
04-473 +++$+++ 23703 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With -- regardless of whether he was ultimately correct or not, there's no question, and there's no serious argument here, that he had a legitimate basis for believing that police misconduct had occurred. He conferred with his supervisors and his colleagues before writing the memo. Everyone agreed that there was a problem with the warrant. And they took his allegations so seriously that they released a defendant who had plead guilty.
04-473 +++$+++ 23704 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Say it's a --
04-473 +++$+++ 23705 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if --
04-473 +++$+++ 23706 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And went to Jail
04-473 +++$+++ 23707 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- borderline case --
04-473 +++$+++ 23708 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- none of that were true -- if none of that were true, he could still file his complaint. Presumably it survives a motion to dismiss, and it goes at least to summary judgment. And that's true in every case of a disagreement between a subordinate and a superior.
04-473 +++$+++ 23709 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true of every public employee government -- excuse me -- public employee speech case, period. Almost all of these cases go to summary judgment. They can't be dismissed at the pleading stage, by and large, because they require factual development. So, all that -- all that this per se rule does is add complexity and a need for greater factual development. It's not the magic bullet that the Petitioners seem to think it is. The Givhan case suggests the unworkability of drawing the First Amendment line as what's part of an employee's job. Conferences between a teacher and her principal take in the same level of generality as writing a disposition memorandum --
04-473 +++$+++ 23710 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what about the cases -- putting aside the clear-cut case where the employee's statement is either clearly correct or clearly incorrect, but what about the case where the objection to what the employee is doing is the manner of the speech? It's on the matter -- it's on the matter of concern, but the supervisor just thinks that it's being handled in a way that's ham-handed or indiscrete. Aren't they going to -- aren't these cases going to cause terrible litigation problems?
04-473 +++$+++ 23711 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, they won't, and they haven't. If the employee -- employer has a concern about the manner in which it's communicated, that is a valid employment concern. I mean, suppose Ceballos had gone a had a big meeting with --
04-473 +++$+++ 23712 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But under --
04-473 +++$+++ 23713 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the sheriff's department -- -
04-473 +++$+++ 23714 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- then under Pickering --
04-473 +++$+++ 23715 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and embarrassed them?
04-473 +++$+++ 23716 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the test is going to be whether the manner, which may be difficult to recreate, caused -- how much of a disruption it caused to the operations of the office.
04-473 +++$+++ 23717 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ These -- you'd think that if there was that type of disruption and hindrance of the way public agencies were carrying out their missions by these kinds of cases, which have been around for a long time, that you'd see citations to them in the Petitioner's brief, in the United States brief. And their silence on this point is both deafening and telling, because, in fact, it has not been the problem that is being posited here, and this is not a new approach that we're talking about. But getting back to the Givhan case, conferences between teachers and principals are a part of the teacher's job, and it's pure formalism to make the protected status of the Givhan teacher's speech turn on whether the employee manual says a teacher has to work to root out race discrimination. Or what if she was a part-time ombudsman who is charged to improve race relations in the school? Under their approach, you know, boom, it's not protected speech anymore, even though the underlying First Amendment value is exactly the same. It also makes it completely subject to manipulation by the employer in making everything a part of an employer -- employee's job, in terms of reporting duties, which --
04-473 +++$+++ 23718 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The First Amendment value may be the same, but it -- but what is present is another value. And unless the person is willing to go public, in which case the balancing occurs, and assuming there's no prohibition of it, that other value is a very significant one, the ability of public officials to run their offices.
04-473 +++$+++ 23719 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But here's the problem with going public. It's perverse to create an incentive for employees to go public, especially employees in sensitive position -- in a sensitive position. The First Amendment consequences here are especially grave, because Ceballos had no realistic alternative channel for communication open to him. Had he gone to a blog, Web site, podcast, and so on, as Petitioners say in their reply brief, or held a press conference, or gone to Los Angeles Times, and so on, he'd be fired, and he'd lose any First Amendment case that he brought. So, what avenue does a prosecutor who wants --
04-473 +++$+++ 23720 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But what he has --
04-473 +++$+++ 23721 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to bring --
04-473 +++$+++ 23722 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But the argument that I think people are worried about, against you, is, you have a case -- it's actually a wonderful example. Your client thinks that, in the affidavit that the sheriffs gave supporting the warrant, they didn't tell the truth, because they said that whoever was looking into it, you know, said there was a private driveway and that there were tire tracks, and there were no tire tracks, and it wasn't a private driveway. The other side says, "Yes, it was a long road, but sort of like a driveway, and the edge of the -- of the driveway was broken down, and that's what the sheriff's deputies were referring to." I found it a dispute on both sides.
04-473 +++$+++ 23723 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you know --
04-473 +++$+++ 23724 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now, if, in fact, he's being disciplined for that, the other side is telling you he has a lot of remedies, he has a variety of remedies. Go to the bar associations. Many States have laws, the statutes that protect people under these situations. And why suddenly go to a constitutional court to get the same relief which will short circuit all the other remedies? And if you do, there are going to be thousands of cases less good than yours, and they'll all run to -- to the constitutional court. All right. So, now, what's your reply?
04-473 +++$+++ 23725 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is no baseline level of protection that is available by statute or civil service protections. If the Court recognizes that the speech involved here, exposing Government misconduct and so on, is important for First Amendment purposes, as it has previously recognized, then it's -- then it needs to be a baseline level of First Amendment protection. And then if whistle-blower statutes are passed that protect it beyond the baseline level, that's fine. I'm not maligning whistle-blower statutes. But there is no such level of protection that is guaranteed. For someone in his position, if the First Amendment does not protect his speech, it's just not protected. And I want to get back to -- I started to say why it's so important that the speech be protected. It's not just that the public needs to have a Government of public servants, but the Government needs to know how it's operating. How can Government function efficiently and effectively if it does not possess the information it needs to make responsible choices? When an employment decision is actually made because the employee has made a bad judgment and he reached an unwarranted conclusion in his memo, or the manner in which he conveyed it was terribly indiscrete, he publicized in front of the whole sheriff's department, and embarrassed them, when that's an issue, then the employment can respond, and the courts will make quick -- short shrift of those cases, as they do now.
04-473 +++$+++ 23726 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When --
04-473 +++$+++ 23727 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that --
04-473 +++$+++ 23728 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It --
04-473 +++$+++ 23729 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- was my point earlier. They can't make short shrift of those cases, because they're not going to be thrown out at the pleading stage. They're going to have to progress at least to summary judgment, probably in every case in which an employee is terminated, because now one of his defenses against termination is, "You're violating my First Amendment rights."
04-473 +++$+++ 23730 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, I mean, the Court needs to appreciate that for the universe of public employee free-speech cases, they're mostly decided at summary judgment; they aren't decided on the pleadings. That's already the case. And all that adding a job-duty element to it is, adds complexity and requires more factual development. It -- there's a number of issues here. First of all, what counts as part of an employee's job? Does the speech have to be required by the job, or merely related to the job? How do you judge if the speech meets the test? Do you go by the job description? Common practice? What if the employee's speech is not required by the job, but some independent ethical duty compelled him to come forward --
04-473 +++$+++ 23731 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If Pickering --
04-473 +++$+++ 23732 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- as is the case here? And, also, what if the employee --
04-473 +++$+++ 23733 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Cases involving those questions would have to go to the courts, I assume. But they'd be a small percentage of all the cases that would go to the courts if we adopt your position. I agree, there will still be some cases left that'll have to go to the courts to sort out these questions that you mentioned. But that's going to be a small percentage of the totality.
04-473 +++$+++ 23734 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's already a small percentage of the totality, because cases of this type, which involve speech by a public employee while they're doing their job, however that is formulated, are already a small subset of the universe of public employee --
04-473 +++$+++ 23735 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Perhaps --
04-473 +++$+++ 23736 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- cases.
04-473 +++$+++ 23737 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- because it's been unclear, until this Court has spoken to the subject, and especially in light of the dicta in our prior cases, which says that he has to be speaking publicly. The reason for the -- for the -- for the paucity of cases can be, simply, that the law was not clear, and most people thought the way -- the way your opponent in this case thinks.
04-473 +++$+++ 23738 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's incorrect. I mean, most of the Circuits have addressed this question, and virtually all of them are -- have sided with the Ninth Circuit and has -- have refused to draw a bright-line rule when speech has come up as part of the job. And the -- and as -- Justice Scalia, you seem to be referring to the "as a citizen" phrase the Court has used in its opinions. And I want to address that. No decision by this Court has ever turned on the "as a citizen" phrase, and it's always been used in conjunction with "matter of public concern." The most that can be said is the phrase characterizes the facts of the cases in which the Court used it. The Court hasn't addressed whether speech that's part of the job --
04-473 +++$+++ 23739 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but the Court didn't say this guy had blue eyes.
04-473 +++$+++ 23740 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Speech --
04-473 +++$+++ 23741 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It said he was speaking as a -- that seemed to the Court to be important to its decision.
04-473 +++$+++ 23742 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Speech -- and I don't mean to suggest it has no meaning, but "speech as a citizen" means speech that one can readily imagine a concerned citizen engaging in. You can imagine a concerned citizen coming forward to report race discrimination --
04-473 +++$+++ 23743 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's not --
04-473 +++$+++ 23744 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in a school.
04-473 +++$+++ 23745 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the context in which this law developed. It developed, originally -- if you were a public employee, you did not have free-speech rights as a citizen. As Justice Holmes said, you know, you might have the right to speak, but you don't have the right to be a policeman. So, the "as a citizen" part didn't come out of happenstance.
04-473 +++$+++ 23746 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-473 +++$+++ 23747 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It was recognizing that when you are speaking "as a citizen," juxtaposition to "as an employee," then you do have First Amendment rights.
04-473 +++$+++ 23748 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But if you look at the way it was used in Pickering, which, of course, is a different case -- but, in Pickering, the Court was emphasizing that public employees, like all citizens, have an interest in speaking on a matter of public concern. The Court, in Connick, suggested that if the prosecutor there had spoken to bring to light actual or potential wrongdoing or breach of public trust, her speech would have presumptively been protected. If she had done that, she'd be speaking in the same capacity that Ceballos spoke here. One can readily imagine a concerned citizen stepping forward to expose Government misconduct. And it can be difficult to sort out in which capacity an employee is speaking. And sometimes an employee can speak in more than one capacity at once.
04-473 +++$+++ 23749 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If Pickering balancing is done, is there anything special about the situation where the employee's speech is part of the employee's job duties? Is the test applied differently in that situation?
04-473 +++$+++ 23750 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does, because if the employer makes a judgment -- as I said before, if the employer makes a judgment that the employee has carried his job duties poorly, incompetently, insubordinately, and so on, that interest is -- it's either dispositive of the balance, or it's nearly so. And it -- so, from that standpoint, the Court could put a gloss on the Pickering balance that explains or emphasizes that the employer's interests are controlling how the jobs are performed, prevails. But to get back, for a moment, to the --
04-473 +++$+++ 23751 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I'm not sure I understood that answer. So, in this situation, if the employer said that Mr. Ceballos was performing his job poorly, that would be enough to tip the balance in the employer's favor --
04-473 +++$+++ 23752 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If that was --
04-473 +++$+++ 23753 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- under Pickering here?
04-473 +++$+++ 23754 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If that were really the case. In a case like this, it would be clearly pretextual, because not only -- not only was that not the basis that was actually offered, but the employer sided with him initially and released the defendant and said he had a legitimate basis for speaking, and called a meeting with the sheriff's department, and took all these steps to show that they actually sided with him. And only when the sheriff's department accused him of -- as acting like a public defender and said, "We're going to get sued if you don't back us up," then the office changed its position and went against Ceballos. So, in a case like this, it would clearly be pretextual. In another case, however, it would not -- presumably there are cases where it would not be pretextual.
04-473 +++$+++ 23755 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, basically, the test -- the Pickering balancing is the same in this situation as it is in, let's say, the Givhan situation.
04-473 +++$+++ 23756 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, this case is almost identical to Givhan. The only -- the only thing is that the Court, in Givhan, didn't expressly opine on what capacity in which she was speaking. But it clear that --
04-473 +++$+++ 23757 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, but I --
04-473 +++$+++ 23758 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- a teacher speaking --
04-473 +++$+++ 23759 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I --
04-473 +++$+++ 23760 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in both capacities --
04-473 +++$+++ 23761 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I interrupt you? I thought you said that, in this case, as distinct from Givhan, there would be cognizable employer interests in incompetence, the truth of what was said, the capacity to do the job without roiling the waters unduly, and so on. And that, I take it, is not necessarily so in a Givhan situation. Or is it?
04-473 +++$+++ 23762 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In --
04-473 +++$+++ 23763 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Maybe the employer has the same interest in each. I --
04-473 +++$+++ 23764 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think --
04-473 +++$+++ 23765 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- I have --
04-473 +++$+++ 23766 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the employer had the same interest in both cases. The question in Givhan was the fact that it was an internal report to the employer: Did that matter? Did that reduce its protection? The Court said no. So, the only thing that it would take to make Givhan exactly like this is to put it in the employee manual or make her an ombudsman so it's -- so there's not even room for argument that it was part --
04-473 +++$+++ 23767 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, but in --
04-473 +++$+++ 23768 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of her job.
04-473 +++$+++ 23769 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- in Givhan, if the employee's assigned duties were all done competently, but she had just gone off the deep end on racial balance or something, the employer would not have had -- - if -- so long as it was the -- a private communication like that, I don't know that the employer would have had an interest in saying, "Well, you're incompetent on the subject of racial balance, and therefore I -- you know, I'm going to demote you or fire you." But in the case in which the employee is talking on the subject within the job description, then the employer has got -- I thought you were saying he's got a direct interest in competence, truth, and so on.
04-473 +++$+++ 23770 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, that's --
04-473 +++$+++ 23771 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-473 +++$+++ 23772 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that's correct. That's right. Let me turn, just for a second, to -- getting back to the complexity here, and the linedrawing that has to be done. The Petitioner's own hypotheticals underscore the arbitrariness and unworkability of their approach. In -- if you look in the reply brief, at page 13, note 11, they cite, as an example, a county emergency-room doctor who -- and then they put "is not part of their normal duties," to sort of build it into the hypothetical -- would have a right, a First Amendment right, to come forward and talk about inefficiencies in a county emergency room. Whereas, the State health inspector, who finds health code violations in nursing homes do not. The First Amendment value in those situations are the same. And, if anything, it's greater for the county emergency -- for the -- for the -- I've said this backwards -- the county emergency-room doctor who's talking about how the -- how the county hospital is operating. There's no difference there. And it's a completely arbitrary linedrawing. Suppose Ceballos had gone outside the chain of command, suppose he had reported to Garcetti that there was police misconduct. It's not clear where that position would -- where their position would lead them. Now it's not part of his normal job duty to go talk to the DA. He's bypassed the chain of command. But it seems that they would say that, "Well, because it was not part of his normal job duty, it -- then it would be protected." And, if so, what message is that sending public employees about whether they should follow their employer's own rules about how you communicate in the workplace and what the chain of command is? It doesn't make any sense to force public employees to go public, as that does more to increase disharmony and disruption in the workplace than having an employee like Ceballos, who followed every rule and every order and instruction regarding how to handle the case and how to communicate within the workplace. Connick said that the First Amendment's primary aim is the full protection of speech upon issues of public concern, as well as the practical realities involved in the administration of a Government office. The proposed rule is inconsistent with that primary aim. It doesn't do anyone any good to have U.S. attorneys and DAs blind-sided by coverups in their office because their employees were afraid to come forward and tell their supervisors the bad news.
04-473 +++$+++ 23773 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, for that reason, they're -- for that reason, they're not likely to -- in most instances, they would not be hostile to receiving that kind of information, if it was provided to them.
04-473 +++$+++ 23774 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ May I answer?
04-473 +++$+++ 23775 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Sure.
04-473 +++$+++ 23776 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Unfortunately, there's too much evidence, there's too much water under the bridge, that shows that public employees who deliver bad news, and are the unwelcome messenger, do face retaliation in their workplaces. And here, Ceballos told his workplace, his supervisors, that police misconduct had occurred, and that was an unwelcome message, and he was retaliated against for that reason.
04-473 +++$+++ 23777 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Robin-Vergeer. Ms. Lee, you have 3 minutes remaining.
04-473 +++$+++ 23779 +++$+++ FALSE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. I think that's an important point, Justice Alito. I mean, in this case, it's exactly what happened. The supervisors took Mr. Ceballos's assessment seriously. And the difference was, after they further thought about it, they didn't think -- they didn't agree with the proper course of action for the district attorney's office, especially since there was a motion pending, "Let's let the courts decide that." So, if -- where -- I think Plaintiff's suggesting that, but for protecting speech that's required by the duties of employment, employees really would not have much of a right or a remedy if it turns out that the employer believed that maybe they weren't performing their jobs correctly, or, in our case, if the supervisor had considered the speech and said, "You know what? You made a bad judgment call, and we don't think it's entitled to a promotion," that shouldn't give the Plaintiff a constitutional right to challenge that decision. If that -- if the -- if Mr. Ceballos was, in fact, doing his job, that was required of his job, and he was doing it competently, his remedy is not the First Amendment. His remedy is not even -- he doesn't even need a whistle-blower statute for that. He could go through civil service, he could go through a formal grievance procedure, and though -- although State statutes on whistle-blowers do vary, there is no State statute, in my understanding, that covers broadly than what the Ninth Circuit does here --
04-473 +++$+++ 23780 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Lee --
04-473 +++$+++ 23781 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- which is --
04-473 +++$+++ 23782 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- what do you respond to the argument that this has been the law in a number of Circuits and the sky has not fallen?
04-473 +++$+++ 23783 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the reason that job-required speech may not be -- may not be filed, or basis for First Amendment retaliation, or the reason why we may not have seen that, may simply be because public employees understandably do not believe they're exercising their First Amendment rights when they are simply performing their duties of employment, when they're speaking pursuant to their job duties or writing reports or memorandums pursuant to their job duties. Just because there may not be the significant increase of First Amendment litigation in the public employment context for purely job-required speech does not mean that this Court should not consider this issue. And I disagree with the representation that the facts in this case are identical to Givhan. This Court commented in that decision that Givhan was citizen speech. And I don't necessarily think that -- and it -- what -- that -- where our proposal -- our approach would add further complexity to First Amendment litigation in an employment context. It's certainly not a difficult decision -- analysis in this case.
04-473 +++$+++ 23784 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you --
04-473 +++$+++ 23785 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-473 +++$+++ 23786 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- Ms. Lee. The case is submitted.
04-473b +++$+++ 23791 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++  +++$+++ We'll hear argument next in 04-473, Garcetti versus Ceballos. Ms. Lee.
04-473b +++$+++ 23793 +++$+++ FALSE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. Mr. Chief Justice, and may it please the Court: At its core, the first amendment is about free and open debate on matters of public importance. It's about citizens' rights to participate in public debate and contribute their personal opinions and views whether they are mainstream or not. The first amendment is not, however, about policing the workplace. It is not about constitutionalizing the law of public employment. Nor should it be. Yet, if the Ninth Circuit's approach is accepted or adopted, this is what it will do. In this Section 1983 action, a deputy district attorney prepared a disposition memorandum, pursuant to his prosecutorial duties, setting forth the reasons why, in his prosecutorial judgment, the criminal case that he was supervising was likely to be dismissed. The fact that the supervisor did not agree with the content of that memorandum should not give the plaintiff a constitutional right to challenge adverse employment decisions that he claims were in response to the product of that memorandum. There are no first amendment interests that are served when public employees are allowed to perform assigned job duties in such a way as to the disagreement of the public employer. Essentially, what the --
04-473b +++$+++ 23794 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I --
04-473b +++$+++ 23795 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Ninth Circuit --
04-473b +++$+++ 23796 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I suppose the public might have an interest in knowing about this debate. I don't know if you can say there's no public interest served. It might be that there are other counterbalancing first -- interests, but I don't think you could say we have no interest in speech. This was -- this is a -- on its face, a rather interesting -- a rather interesting argument that they're -- that they're having.
04-473b +++$+++ 23797 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ When --
04-473b +++$+++ 23798 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They're interested in criminal law, criminal procedure, et cetera, et cetera.
04-473b +++$+++ 23799 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's our position that when speech by public employees cannot fairly be said to be speech as a citizen, then the Government should have a presumptive right to manage its personnel affairs and internal --
04-473b +++$+++ 23800 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that -- yes, that's something different. But your statement, that there's just no first amendment interest --
04-473b +++$+++ 23801 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there's on core first amendment values that are furthered when public employers have to justify employment decisions that they make on a routine basis.
04-473b +++$+++ 23802 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, why wasn't that equally true in Connick?
04-473b +++$+++ 23803 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the difference in Connick is that the employee -- the prosecutor in that actions spoke more closely with a citizen, and the Government -- -
04-473b +++$+++ 23804 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but I mean that's --
04-473b +++$+++ 23805 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- had --
04-473b +++$+++ 23806 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's a fine characterization, but I'm not sure that that helps us. In Connick, the one subject of the speech that was held to be protected was the speech questioning political pressure to help in campaigns and so on. The issue here that would arguably favor protection is the issue of calling public attention to lying by police officers in criminal cases. And it seems to me that the -- that if there's a public interest in political pressure, there's a public interest in mendacity in law enforcement.
04-473b +++$+++ 23807 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if the employee is required to investigate or report that kind of conduct pursuant to their normal duties of employment, then that is speech that the employer should absolutely or presumptively have an ability to monitor.
04-473b +++$+++ 23808 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, yes, but why?
04-473b +++$+++ 23809 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's the difference, not the lack of public interest --
04-473b +++$+++ 23810 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's --
04-473b +++$+++ 23811 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-473b +++$+++ 23812 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that you're --
04-473b +++$+++ 23813 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- absolutely right.
04-473b +++$+++ 23814 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- pointing to, is that in one case he is making this statement as an employee; and you say the employer, if it's a stupid statement, ought to be able to fire him for it. In --
04-473b +++$+++ 23815 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-473b +++$+++ 23816 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the other case, he's making the statement as a member of the public. And what the first amendment is all about is that we allow stupid statements to be made. Right?
04-473b +++$+++ 23817 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it's not part of -- if it's -- if it's not part of your core job duties that you -- that employers should evaluate.
04-473b +++$+++ 23818 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, but it may well -- I guess the point that I'm trying to get at -- and it goes back to your original public-interest issue -- is, let's assume -- as Justice Scalia's hypo had it, let's assume that the statement made by the employee on the subject within job duties -- case like this one -- is, in fact, a "stupid statement." Let's assume it's wrong, it's inaccurate, whatnot. The issue is not whether an employer, it seems to me, should, if that turns out to be the case, be able to fire. The issue, it seems to me, is whether, if it is not stupid, it should be totally unprotected, so that the employer could do anything, even if it's an accurate statement. And my understanding is that your argument on public interest was an argument that says, even if it's accurate and they were lying and so on, that there should be no protection. Am I -- and do I understand you correctly?
04-473b +++$+++ 23819 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, our position is, whether or not the prosecutor in this case made an accurate statement during the performance of his job -- so, in other words, if his disposition memorandum -- if the employer accepted it and agreed with it, and the case didn't go any further, there wouldn't be a basis of first amendment, because normally he is acting pursuant to his job duties and it's up to the employer to evaluate whether or not he's adequately performing those job --
04-473b +++$+++ 23820 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure, but take --
04-473b +++$+++ 23821 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- duties.
04-473b +++$+++ 23822 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- take the case in which the employee says, "It was accurate." The employer says, "No, it was stupid. You got everything wrong." I take it, in -- your position is that regardless of whether the employee got it right or not, there shouldn't be protection, because it's within job duties. Is --
04-473b +++$+++ 23823 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. It --
04-473b +++$+++ 23824 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that correct?
04-473b +++$+++ 23825 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- should not be protected under the first amendment.
04-473b +++$+++ 23826 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
04-473b +++$+++ 23827 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's not to say that the public employer is free from being challenged with regards to the employment decision. It may be a matter for the employee to seek, through the grievance procedure, that -- like Mr. Ceballos did initially, or even pursue it to civil service remedies. And those are the type of decisions that the personnel in those departments are more ably, I think, to decide.
04-473b +++$+++ 23828 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Or he could go public, I assume. He could say, "I got fired for saying this. And this was true." Right? Take it to the press. The press would love it.
04-473b +++$+++ 23829 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If his job --
04-473b +++$+++ 23830 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right?
04-473b +++$+++ 23831 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- is not -- if that speech was not required to be kept --
04-473b +++$+++ 23832 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm assuming it was --
04-473b +++$+++ 23833 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- internally.
04-473b +++$+++ 23834 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- not required to be kept -- -
04-473b +++$+++ 23835 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But if he -- if it's part of his job to speak publicly, then he has no -- things that are said publicly in the performance of official responsibilities have no first amendment protection?
04-473b +++$+++ 23836 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In our view, no. If it's a job -- if the public employee's assigned job duties is to, on behalf of the Government or the employer, speak to the public about certain things that are going on in the office, and he happens to get disciplined for it, that wouldn't pass our step.
04-473b +++$+++ 23837 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So, what if the employer tells the employee to go out and lie? There's no first amendment protection if the employee, instead, tells the truth?
04-473b +++$+++ 23838 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't know if that's a -- if that's a detailed enough hypothetical. I mean, if the employee's core job duties are to report X, Y, and Z, and that employee goes out to the public and reports X, Y, Z, E, and F --
04-473b +++$+++ 23839 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, no, that's not --
04-473b +++$+++ 23840 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I think that's --
04-473b +++$+++ 23841 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's not -- that's not the hypothetical. So, suppose that a supervising district attorney tells the deputy district attorney, "Go in and make a misrepresentation to the court, or conceal evidence," or whatever --
04-473b +++$+++ 23842 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the question would be if he's --
04-473b +++$+++ 23843 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and he refuses to do that, or he goes in and he says the opposite, he tells the truth, and he's fired. What result?
04-473b +++$+++ 23844 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think the plaintiff could argue that, "That's not my core job duties. My job duties is to" -- if it's a prosecutor, "is to make statements" --
04-473b +++$+++ 23845 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, so --
04-473b +++$+++ 23846 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- "pursuant to" --
04-473b +++$+++ 23847 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- so you're saying that there's an exception to your rule, so that if, in this case, he has a -- he has a defense if he said, "Well, it's my duty to call it as I see it"?
04-473b +++$+++ 23848 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely --
04-473b +++$+++ 23849 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Then --
04-473b +++$+++ 23850 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- not.
04-473b +++$+++ 23851 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, then, if that's so, you ought to remand this case.
04-473b +++$+++ 23852 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, sure you'd agree with that, if it's his duty to call it or -- just as it's the duty of a -- of a lawyer not to lie to the court. If there was a similarly clear legal duty for him to say something, you'd say that was part of his job description, right?
04-473b +++$+++ 23853 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be the required assignments of his job.
04-473b +++$+++ 23854 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and I suppose, in this case, in the hypothetical we propose, that the California courts and the California bar would have disciplinary mechanisms against the senior attorney who hypothetically told the junior attorney to mislead.
04-473b +++$+++ 23855 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that would be an issue of fact.
04-473b +++$+++ 23856 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Does California have, or have not, disciplinary procedures in the hypothetical case where a senior attorney who tells a junior attorney lie to the court --
04-473b +++$+++ 23857 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They do.
04-473b +++$+++ 23858 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ All right.
04-473b +++$+++ 23859 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What is the --
04-473b +++$+++ 23860 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what if it's --
04-473b +++$+++ 23861 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- what is the California remedy? Let's say his boss says, "Don't turn over Brady materials."
04-473b +++$+++ 23862 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the employer goes ahead and turns it over?
04-473b +++$+++ 23863 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-473b +++$+++ 23864 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the boss makes a determination that, "This is not Brady materials. I don't want disclosed," and the employee goes ahead and discloses it, our position is, that would not be protected first amendment speech.
04-473b +++$+++ 23865 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What about -- you were talking about public speaking. There was, as I remember, a talk that was given to the Mexican-American Bar Association, and that was not something that his employer required him to do, but he --
04-473b +++$+++ 23866 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it wasn't. And it's not part of this lawsuit, because there's no dispute that the communication at issue in this case is that disposition memorandum that he prepared purely pursuant to his prosecutorial duties.
04-473b +++$+++ 23867 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But would have a 1983 case if he were disciplined or disadvantaged in the workplace because of the talk that he gave to the Mexican-American Bar Association in which he criticized DA office policies?
04-473b +++$+++ 23868 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Then our position is, it gets past step one, because it's not normally something that a prosecutor is required to do, and it would be subject to a balancing --
04-473b +++$+++ 23869 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Pickering balancing, I take it.
04-473b +++$+++ 23870 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-473b +++$+++ 23871 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I thought -- correct me if I'm wrong, just as a matter of fact -- I thought his 1983 claim listed the speech to the Mexican-American Bar Association as one of the reasons that he was demoted, or whatever it was, transferred.
04-473b +++$+++ 23872 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was initially alleged, but, through the course of discovery, the focus of it was a disposition memorandum, because by the time he went to the Mexican-American Bar Association, he had already been disciplined, so there is no causation between his public speech to the Mexican Bar Association and the disciplinary actions that were --
04-473b +++$+++ 23873 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the --
04-473b +++$+++ 23874 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- are at issue.
04-473b +++$+++ 23875 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the focus may have changed, but, I mean, he hadn't dropped the -- he hadn't dropped the claim that that was one of the causes --
04-473b +++$+++ 23876 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in --
04-473b +++$+++ 23877 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of the --
04-473b +++$+++ 23878 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in essence, he did, when we --
04-473b +++$+++ 23879 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Did he?
04-473b +++$+++ 23880 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- when we went to the summary judgment motion. And that's why the District Court was very clear that the issue --
04-473b +++$+++ 23881 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
04-473b +++$+++ 23882 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in this case was the communication in the disposition memorandum. And that was -- it was undisputed that that was purely pursuant to his prosecutorial duties --
04-473b +++$+++ 23883 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Court --
04-473b +++$+++ 23884 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and --
04-473b +++$+++ 23885 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the Court of Appeals did --
04-473b +++$+++ 23886 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
04-473b +++$+++ 23887 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the Court of Appeals specifically did not address the Mexican-American Bar Association speech. It focused only on the memorandum, correct?
04-473b +++$+++ 23888 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-473b +++$+++ 23889 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And you concede that's Pickering balancing, anyway.
04-473b +++$+++ 23890 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in -- to the extent that he's alleging that if that's -- "I went to the Mexican-American Bar Association, and I alleged -- or I made statements that there were some improprieties in the district attorney's office," that would probably get past step one and the matter of public concern, and then the question would be whether or not his interest in speaking as a citizen outweighed the interests of the Government.
04-473b +++$+++ 23891 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But let me -- let me raise this question. If, in this case, he gets past step one because of the Mexican Bar Association speech, and if, as you suggested in answer to a question a little while ago, that anybody could go public and get at least past step one of Pickering, what is to be gained by the extremely -- well, strike the "extremely" -- what is to be gained by the restrictive view that you take that if he doesn't go to the Bar Association, or doesn't go public, there's no protection at all? In other words, it seems to me that the public is being protected in a way subject to an immediate end run.
04-473b +++$+++ 23892 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think what Your Honor is really asking is, if the plaintiff in this case had taken his disposition memorandum, and, rather than give it to his supervisor, which what he -- what he was required to do, he went to the public and gave it to them on a pending case, I don't necessarily think that would be protected under Pickering, as well.
04-473b +++$+++ 23893 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But what if he simply goes to the public and says, "Look, there's Brady material here, and it should be turned over, and, instead, my boss is telling me to suppress it." That wouldn't be turning over his work product. And I took it, from what you said earlier, that, in that case, you would say at least he gets pasts step one of Pickering for the --
04-473b +++$+++ 23894 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, he certainly --
04-473b +++$+++ 23895 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- newspapers --
04-473b +++$+++ 23896 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- wouldn't be speaking in his capacity as a prosecutor, but that doesn't necessarily mean that his interests would be outweighed by the employer's interest. In --
04-473b +++$+++ 23897 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, he might -- he might ultimately lose, just the way, on all issues but one, the employee in Connick lost. That's quite true. But at least --
04-473b +++$+++ 23898 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
04-473b +++$+++ 23899 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- there would be a claim to go through the balancing --
04-473b +++$+++ 23900 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in --
04-473b +++$+++ 23901 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- exercise.
04-473b +++$+++ 23902 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in some respects, if you're talking about job-required speech that you are -- part of those duties, and the function, is to keep it internally until at least there's some decision by the supervisor, and, rather than do that, you send it to the press or leak that information out, I think a governmental disruption in efficiency can be presumed there. So, I don't think it's as -- I don't think it's as clear that that -- that Mr. Ceballos would have ultimately prevailed under the balancing. I mean, if he had taken the --
04-473b +++$+++ 23903 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-473b +++$+++ 23904 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the speech externally, I think there -- that he ultimately would have lost, as well --
04-473b +++$+++ 23905 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, I understand your point.
04-473b +++$+++ 23906 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- because there is --
04-473b +++$+++ 23907 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You're not saying he would win on Pickering balancing, but he would at least get to the point of going through the balancing exercise.
04-473b +++$+++ 23908 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And ultimately the result would be, there's no protected --
04-473b +++$+++ 23909 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Maybe.
04-473b +++$+++ 23910 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- first amendment speech.
04-473b +++$+++ 23911 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-473b +++$+++ 23912 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ How do you go about determining whether something falls within somebody's job duties? How specifically does that have to be set out?
04-473b +++$+++ 23913 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it's a function of the person's job -- assigned job duties. So, the -- you look at the speech at issue. And here is -- it's a disposition memorandum that was purely pursuant to what the -- what his duties required. He's -- it's normally a function that the employer would take into consideration for things like promotions --
04-473b +++$+++ 23914 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And you have to look at --
04-473b +++$+++ 23915 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- or demotions.
04-473b +++$+++ 23916 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- you have to look at a job description? And does it have to be listed specifically in a job description? Could there ever be things that it's understood that are things that any employee ought to be concerned about, such as very serious wrongdoing within the office?
04-473b +++$+++ 23917 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I mean, there could be situations where there's a general code of conduct by all employees; you know, employees who feel that they've been, you know, harassed, sexually harassed, or feel that others are, should report that. But that may not be that person's assigned job duties. In other words, that person is not assigned to investigate and report those type of things.
04-473b +++$+++ 23918 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of course, if --
04-473b +++$+++ 23919 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
04-473b +++$+++ 23920 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- if you adopt a principle that every employee ought to -- ought to report to his superiors known wrongdoing by his co-workers, and that that's part of his job duties, you -- then you always cut off the ability of that employee to go public, right? I mean, that's a -- sort of an expanding category, "job duties."
04-473b +++$+++ 23921 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it would be assigned job duties, things that normally the employer would take into consideration for things like terminating or promoting. I'd like to reserve the remainder of my time for rebuttal.
04-473b +++$+++ 23922 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Ms. Lee. Mr. Kneedler.
04-473b +++$+++ 23924 +++$+++ FALSE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Much of the work of public employees is performed by speaking or writing, and much of that work concerns matters of public interest. Under the Ninth Circuit's decision, public employees engaged in such work have at least a presumptive first amendment right to perform their jobs as they see fit. That conclusion rests on a fundamentally mistaken view of the first amendment. When the Government pays for somebody to do its work, it has an absolute right to control and direct the manner in which that work is performed. That is a basic rule of agency law, and insofar as Federal employees are concerned, it's a basic rule of our constitutional structure. Article II of the Constitution gives the President the power and responsibility to take care that the laws be faithfully executed. Effectuation of that power, and effectuation of the principle of accountability that it embodies, requires that supervisors in the executive branch be able to control and direct the work of their subordinates. The first amendment, which was adopted just a few years after the Constitution, was not meant to interpose the first amendment in that relationship between supervisor and subordinate or otherwise to regulate the internal affairs of the executive branch. That is the function of civil service laws adopted by the legislature and internal executive branch directives taking into account the relative costs and benefits of certain types of regulation. And finally --
04-473b +++$+++ 23925 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, you take the position, then, that -- going to the earlier hypothetical that somebody brought up, that, say, in a Brady case, if the -- if the Federal prosecutor believes there was Brady material that -- and let's assume he's correct, just to make it a simple case -- that there's Brady material to be turned over, and the U.S. attorney says, "Do not turn the Brady material over," that if the -- if the U.S. -- if the -- if the prosecutor tells this to a court, that he can be disciplined?
04-473b +++$+++ 23926 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there would, no doubt, be other restrictions. Justice Kennedy mentioned ethical rules. Under the Federal whistle-blower statute --
04-473b +++$+++ 23927 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, I'm sure --
04-473b +++$+++ 23928 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- there would --
04-473b +++$+++ 23929 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's so --
04-473b +++$+++ 23930 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- be a restriction.
04-473b +++$+++ 23931 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but what about, you know, the basic first amendment --
04-473b +++$+++ 23932 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The first amendment would not be the -- would not be the source of protection. Whether there would be some argument that, if the employee could not be fired, it would be an unconstitutional condition to require him to put his job at peril for committing a due process violation or something like that, whether there would be a claim like that, that would be a different matter. But the first amendment --
04-473b +++$+++ 23933 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But why would you recognize a due process violation if you wouldn't recognize a first amendment violation?
04-473b +++$+++ 23934 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the first amendment does not address speech that an employee undertakes in the performance of his duties.
04-473b +++$+++ 23935 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, neither does due process.
04-473b +++$+++ 23936 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. No, I was just suggesting there would have to be some unconstitutional condition. Well, the due process --
04-473b +++$+++ 23937 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but to get to the unconstitutional condition, wouldn't you normally look to the first amendment?
04-473b +++$+++ 23938 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My point is that the due process -- due process clause does address the conduct at question, which is the requirement that exculpatory material be turned over to the defendant. And so, the question is that the employee would be put in a position where he would -- where he would be instructed not to perform what he understood to be a constitutional violation. I think most civil service laws, most ethical rules, would take care of it. And, as I mentioned, the Federal whistle-blower statute, in 2302(b)(9), I think it is, has a provision that protects employees who refuse --
04-473b +++$+++ 23939 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
04-473b +++$+++ 23940 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to obey an order --
04-473b +++$+++ 23941 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- perhaps, 1983, if you go the unconstitutional condition argument, and certainly in 1983 -- or arguably a civil rights prosecution against the senior who ordered --
04-473b +++$+++ 23942 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, there would be -- there would be those sorts of restrictions. My only point is that the first amendment is not addressed to speech or writing that an employee undertakes in the -- in the -- in the course of his official duties. This --
04-473b +++$+++ 23943 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But isn't there this -- isn't there this anomaly in the position that you're advocating? It would seem to me that categories of employee speech that are most likely to be disruptive would be public speech that's outside of the employee's duties, or internal speech that is outside of the employee's duties. How much of a -- of a problem is it that employees are bringing first amendment claims based on largely internal speech that falls within their own job duties?
04-473b +++$+++ 23944 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that would be a huge problem, because it would effectively constitutionalize the day-to-day interactions between supervisors and subordinates within the Government, and put the Federal Courts in charge of overseeing that. Even if these cases might ultimately be disposed of on summary judgment, there would be discovery, there would be the burdens of the litigation. And in a case like this, where the -- where the Government is taking the position that the -- these actions were not even taken against the employee because of this disposition memorandum -- they say they had perfectly valid other reasons -- but this case exemplifies what the problem would be, is that the employee could identify something that he said or did in the course of his duties that involved speech and say, "That's the reason that I was disciplined."
04-473b +++$+++ 23945 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But are these going to be difficult cases under Pickering balancing? You have the case like this, where the employee, let's say, says to the prosecutor, "I think the case should be dismissed." The prosecutor says, "Well, I'm the supervisor, and I disagree. We're not going to dismiss the case." Typically, the employee wouldn't be disciplined for doing something like that. Now, if the employee persists and, you know, is insubordinate, there would be another basis for taking disciplinary action.
04-473b +++$+++ 23946 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but in this case, if we look at what the Ninth Circuit said, for example, when it got to step two, it said that the employee could only be disciplined if the -- if the agency could show that there was disruption or reckless disregard for the truth. But when somebody is actually carrying out his job duties -- not engaged in outside activities that may reflect back and be disruptive, but engaged in the job duties themselves, the employer has a right to insist on more than that the employee not be disruptive or reckless; he has a right to insist that -- the employer has a right to insist that the employee affirmatively contribute to the work of the office and exercise good judgment. And the -- and the supervisor has to be in a position to make judgments about whether that judgment was good or not.
04-473b +++$+++ 23947 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, is this going to lead to difficult problems in determining what falls within the job duties of a particular employee?
04-473b +++$+++ 23948 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't -- I don't think it -- I don't think it will, and certainly no more problems than the -- than this Court has wrestled with, and the lower courts have, in terms of what's a matter of public concern. I think it's a common inquiry to determine what a person's job duties are. And I think it's a very important place to have a clear line, just as there is a clear line with respect to matters of public concern.
04-473b +++$+++ 23949 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Suppose, in the memo here, the assistant district attorney had said, "I think that this deputy lied, and I think the deputy should be fired." Now, whether the deputy should be fired or not probably isn't within the job duties of this -- of this employee. So, would that be outside of your rule?
04-473b +++$+++ 23950 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I think it would probably be inside the rule. I think -- I would think, particularly for a -- for an assistant DA to make a recommendation about the consequences of illegal conduct would be within his -- within his job duties. I also want to say that this Court's decision in Pickering, and in that line of cases, I think, fully support this, because, as this Court pointed out in Connick, this Court has repeatedly stated that the protection afforded by Pickering is for action taken as a citizen on matters of public concern. That "as a citizen" phrase was reiterated in virtually all of this Court's cases in the area. And the underlying principle is that --
04-473b +++$+++ 23951 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But does the Givhan case fall within that?
04-473b +++$+++ 23952 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes, it does. But all the Court addressed in Givhan was the question of whether, if you take your concerns not publicly to the newspaper, but express them to the -- in that case, the principal, that you don't lose first amendment protection. But the Court did not address the question of whether those comments were within the scope of the employee's duties. And I think a reading of lower court's decision in Givhan indicates that they were not. She was an English teacher, and she was commenting to the principal about employment practices at the school. That would not have been within the scope of her employment. And then --
04-473b +++$+++ 23953 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But if she was the vice principal, that would be -- then it would come --
04-473b +++$+++ 23954 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm --
04-473b +++$+++ 23955 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- within your --
04-473b +++$+++ 23956 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It might be -- it might be closer to that, yes. I think, again, it would depend if she was -- if she was vice principal for administration or something, I think -- I think it clearly would. But the purpose of the Pickering line of cases is to protect employees when they go outside of their -- of their job, that they shouldn't be penalized for having taken a job to be able to participate in public affairs, as the Court put it in Pickering. That does not suggest that the -- that the employee brings the first amendment into the job workplace and can use it as a shield or a sword in the day-to-day interactions with his supervisors, and to do so would be constitutionalize, as I said, the day-to-day operations of employment. And this is a classic example, where somebody wrote a disposition memorandum in the course of --
04-473b +++$+++ 23957 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And you're suggesting --
04-473b +++$+++ 23958 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in the course of those activities.
04-473b +++$+++ 23959 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that a remark made internally could not provide the basis for discipline, but saying exactly the same thing publicly could. I mean -- or vice versa.
04-473b +++$+++ 23960 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if it's made publicly in the capacity as a citizen, assuming the public -- it isn't a speech that he's making in the course of his duties -- if he writes something to the press, he's speaking in his capacity as a citizen. That doesn't mean that it would be constitutionally protected; it simply means that you get to step two of the Pickering balancing, because he's not carrying --
04-473b +++$+++ 23961 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'm assuming --
04-473b +++$+++ 23962 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- out the job duties.
04-473b +++$+++ 23963 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a case in which it would be constitutionally protected. But you're saying if he says it publicly -- assuming we pass the balancing test -- that if he said the same thing to his boss directly internally, no protection.
04-473b +++$+++ 23964 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, that -- at least not if it's part of his job duties. And I would think --
04-473b +++$+++ 23965 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Which is a --
04-473b +++$+++ 23966 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- ordinarily in that --
04-473b +++$+++ 23967 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- rule that would sort of encourage people to go public rather than --
04-473b +++$+++ 23968 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I mean --
04-473b +++$+++ 23969 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- exhaust their internal remedies.
04-473b +++$+++ 23970 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Two things about that. When he's saying it internally, he's doing his job. When he's going externally, he may be violating office policies.
04-473b +++$+++ 23971 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Kneedler. Ms. Robin-Vergeer.
04-473b +++$+++ 23973 +++$+++ FALSE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Petitioners contend that the first amendment provides no protection when the Government silences or punishes a public employee for speaking up on a matter of vital public importance in the course of performing his job, even if the Government has no legitimate employment reason for doing so. Such a sweeping rule would stifle speech that lies at the very core of the first amendment. Recognizing Richard Ceballos's claim in this case would not convert every public employment dispute into a constitutional case.
04-473b +++$+++ 23974 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it's probably a bit much to say that the core of the first amendment is internal employee grievances or speech. And I think the concern on the other side is that you may -- as a lawyer, you may have a view of what the -- what Brady requires. Your superior may have a different view. And just because that disagreement exists doesn't mean that you have a constitutional right to continue to voice your view when your superior has reached a different decision.
04-473b +++$+++ 23975 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree with that. The first amendment doesn't bar the Government from disciplining employees for insubordination or poor job performance or for continuing or persisting in a matter once their supervisor's told them to stop. Where an adverse employment action's motivated by such legitimate employment reasons, there's no first amendment violation. But the Petitioners here have not claimed any legitimate interest in punishing Ceballos for what he said, nor have they made the case --
04-473b +++$+++ 23976 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, their -- the interest they claim that of supervising their employees.
04-473b +++$+++ 23977 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is not correct. In this case, the Petitioners --
04-473b +++$+++ 23978 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, that's the interest that we're concerned with, is of having the Government have the capacity to be able to control the speech of its employees so they could have a consistent policy and so that it can explain to the people what it's doing.
04-473b +++$+++ 23979 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They've articulated that as an abstract principle that has no application on the facts of this case, because on the --
04-473b +++$+++ 23980 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, why --
04-473b +++$+++ 23981 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- facts of -- sorry.
04-473b +++$+++ 23982 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Go on. I'll let --
04-473b +++$+++ 23983 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ On the facts of this --
04-473b +++$+++ 23984 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- let's hear your --
04-473b +++$+++ 23985 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- case, they never claim that Ceballos did anything improper, that he exercised poor judgment, that he was insubordinate. They just said, "We didn't retaliate." That was their defense of this case. And that presents a fact question for the jury.
04-473b +++$+++ 23986 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But you're the one that's asking us to adopt a rule. And I'm suggesting to you that there is an interest that's sacrificed by the rule that you request, and that is the Government's interest in regularity and consistency of its speech. They don't have to claim it on a case-by-case basis. You're the ones that are asking us to make this rule.
04-473b +++$+++ 23987 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect, I disagree with the characterization, because -- well, there are three reasons why Petitioners proposed per se rule, which would be unwise. And it is they who are asking for a per se exclusion where the Court has not previously adopted a per se exclusion. And the reason why it's unwise is that it will chill speech of paramount public importance by prosecutors and many other public employees. It will force many public employees to go public if they want any chance of constitutional protection, and it will lead to arbitrary and unworkable linedrawing regarding whether an employee's speech falls --
04-473b +++$+++ 23988 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-473b +++$+++ 23989 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- within his job duties.
04-473b +++$+++ 23990 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because public employee unions are so weak? They're the only strong unions left in the country. I mean, really. [Laughter.]
04-473b +++$+++ 23991 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You need the Constitution to protect employees against things of this sort?
04-473b +++$+++ 23992 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely. The Court has recognized, in Pickering and in other cases, that the threat of dismissal from public employment is a potent means of inhibiting speech. Public employees who speak up within their workplaces about police brutality, falsification of evidence, disaster preparedness, and so on, should not be compelled to shade the reports and the recommendations and tell their superiors only what they want to hear or else face reprisal for their candor.
04-473b +++$+++ 23993 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but neither should a superior be required to get a report from a subordinate that he thinks is way off base, just a result of poor judgment, thinking that there -- that there was a violation here, when there -- when there obviously wasn't, or using facts that were not sufficiently established in order to claim such a violation. Surely, the employer is entitled to say, "On the basis of this report, which you gave me, you're fired."
04-473b +++$+++ 23994 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's absolutely --
04-473b +++$+++ 23995 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Or -- you know, or --
04-473b +++$+++ 23996 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's absolutely correct. And if, in this case, that judgment had been made by Ceballos's employer, that he had exercised poor judgment, that he was rash or reckless in his conclusions, then the employer would have had a valid basis for taking an adverse employment action against him. But that is not what happened in this case.
04-473b +++$+++ 23997 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but you're just hiding behind the fact that they claimed that it wasn't in retaliation. Your assertion still puts them in the position of having to defend a constitutional claim on a case-by-case basis every time there's a disagreement between a subordinate and a superior about, as in this case, what Brady requires.
04-473b +++$+++ 23998 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, actually, the disagreement -- there wasn't any disagreement. He came forward and exposed police misconduct. And his supervisors were on his side.
04-473b +++$+++ 23999 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was a disagreement about whether or not his memorandum accurately reflected, in an appropriate way, what was at issue there. There was a disagreement about the content of the allegations.
04-473b +++$+++ 24000 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think it's important, for, maybe, purposes of this, to iron this out, but I -- respectfully, I don't agree with that characterization, because, even in the resolution of the grievance internally, the -- what they found in the grievance was that they took no adverse action against him because of what he said --
04-473b +++$+++ 24001 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That doesn't --
04-473b +++$+++ 24002 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in connection with this case.
04-473b +++$+++ 24003 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That isn't the point. I think the point is, at least for -- I think point is who is going to decide whether there was some justification here. And I read this memo. I thought that the DA had a pretty good claim, that the police didn't do anything wrong. And there's also an argument they did. All right. So, who decides that kind of thing? A constitutional court or a State, under its protection laws or whistle-blower statutes?
04-473b +++$+++ 24004 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No --
04-473b +++$+++ 24005 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And the argument that you have to face, I think, is that it will be very disruptive to have constitutional judges dive into this, when there are so many other remedies, and where the very act of their doing it, allowing discovery, allowing court cases, allowing juries, itself, will disrupt the Government. Now, if you say they give you no protection at all, I want to hear what you have to say as to what the standard is to separate the sheep from the goats.
04-473b +++$+++ 24006 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. There are a few points embedded in the question, and I'd like to take them one by one. With respect to the standard, the standard is, if the employer makes a judgment that the public employee has not performed his or her job properly or has been insubordinate, so long as that judgment isn't based on a censorial type motive, like, "We don't tolerate criticism of the sheriff's department," something like that, then the employer's judgment prevails. And I'm not suggesting that a District -- Federal District Court has license to second-guess that judgment, so long as that judgment's actually the judgment that was made. I mean, there's a pretext analysis that might be made in this case --
04-473b +++$+++ 24007 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The only cases that would go into court are cases where the employer says, "I have no reason at all for firing him"?
04-473b +++$+++ 24008 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in a case like this, the county never came forward --
04-473b +++$+++ 24009 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that's because --
04-473b +++$+++ 24010 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and said that --
04-473b +++$+++ 24011 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- they think they have a better claim on the other part. I mean, if -- even if you're right in this one, I promise you, the next one will come along, and they'll say, "Of course we had a good reason for firing him. One, we didn't fire him for that reason. Two, if we did, we would have been justified," or whatever. So --
04-473b +++$+++ 24012 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-473b +++$+++ 24013 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- if your standard is, the only cases that go into court under the first amendment are cases where the employer says, "I had no basis for doing anything to him whatsoever," then I think there will be few such cases, though you might convince me that that standard --
04-473b +++$+++ 24014 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-473b +++$+++ 24015 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- wouldn't do any harm.
04-473b +++$+++ 24016 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that's why I said that it would be subject to a pretext analysis. The employer, of course, might come back and -- and, post hoc, come up with a rationale for --
04-473b +++$+++ 24017 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that'll --
04-473b +++$+++ 24018 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- why they did --
04-473b +++$+++ 24019 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- always be --
04-473b +++$+++ 24020 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- what they did.
04-473b +++$+++ 24021 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the claim. That'll always be the claim. They'll always say, "Oh, yeah, you said you did it because of that, but you did it because you're retaliating" --
04-473b +++$+++ 24022 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You know --
04-473b +++$+++ 24023 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- "for this or that." I mean --
04-473b +++$+++ 24024 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- we're not operating in uncharted territory here. The rule that the Ninth Circuit has adopted has been the prevailing rule in the Circuits for years. And I just want to clarify something that came up in the last argument, where I cited some very rough statistics about the numbers of cases. There's a rough -- a rough cut at the universe of public employee free-speech cases, of which this type of case, where the speech is part of the job, is only a tiny subset. These cases are not dominating the courts, and you don't have all the litigation that is being --
04-473b +++$+++ 24025 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Is that because --
04-473b +++$+++ 24026 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- claimed would occur.
04-473b +++$+++ 24027 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- they're addressed -- is it -- they're addressed under State and Federal whistle-blower laws, or --
04-473b +++$+++ 24028 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, that's -- actually gets me back to the second part of Justice Breyer's question, which is protection. And it's a complete hit-or-miss situation across the country. And just to respond to something that was said about the Federal Whistle-blower Protection Act, that statute has a gaping hole in it, as construed by the Federal Circuit, because the Federal Circuit has construed it to exclude protection for speech that is part of the employee's normal duties. So, in any case that would come up with a Federal employee, leaving aside what judicial remedies are even available for a Federal employee in this area, the Federal employee would be largely unprotected by the Federal Whistle-blower statute. And with respect to what the state of law is across the country, it's complete patchwork. Different types of speech are protected, there's huge holes in coverage. There is no --
04-473b +++$+++ 24029 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What about California, which was the State where this episode occurred? Was -- - I think you mentioned that he did not make a claim under the State statute.
04-473b +++$+++ 24030 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. And it's sort of interesting that neither the Petitioners, the United States, or any of the amici have cited a California whistle-blower statute that would have been applicable to this claim. I, frankly, think that there was one that potentially might have been applicable, not cited by any of the parties, but the law was in flux, and it really wasn't all that clear. And that's -- and California's probably one of the better States, in terms of whistle-blower protections, compared to -- and we're talking about a local government employee, and the odds of protection -- it's just hit or miss across the country.
04-473b +++$+++ 24031 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Are you saying --
04-473b +++$+++ 24032 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The --
04-473b +++$+++ 24033 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Are you -- are you saying the California courts would tolerate a situation where a member of the bar told one of his employees to misrepresent to the court?
04-473b +++$+++ 24034 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you're --
04-473b +++$+++ 24035 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The California courts --
04-473b +++$+++ 24036 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- referring back to hypothetical --
04-473b +++$+++ 24037 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The California courts are certainly not tolerating -- and, in fact, this case was heard by a California court, and the -- and the judge, as I read the record -- it's not altogether clear -- seemed to agree with the -- with the police officers.
04-473b +++$+++ 24038 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The motion to reverse that was heard by a State Court judge was not run -- that hearing was not run by Ceballos. It was run by the defense lawyers in that case. And Ceballos's testimony was limited by the prosecution's own objection. So, you can't judge anything from how that disposition came out, whether the State Court judge thought it was -- the police had lied or not lied. And you can't judge anything by the way that hearing was conducted. But I want to return to why it's so important that the Court not shrink first amendment activity in the workplace. It is of the utmost importance that public employees, who internally report matters of public concern, enjoy first amendment protection, and for two basic reasons. First, the public needs to have a Government of public servants who do their jobs honestly and with integrity, and not yes-men afraid to tell public officials the bad news. A per se exclusion of first amendment protection creates a powerful disincentive for deliberation within Government. The last time, I cited an example of a FEMA employee who was punished for saying to a supervisor that FEMA wasn't ready to handle the next hurricane. But the facts of this case are just as compelling, denying a first amendment protection for prosecutors who expose police misconduct. And his disposition memo wasn't just a prediction about whether -- how a judge would rule on a motion; he exposed police misconduct that --
04-473b +++$+++ 24039 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's --
04-473b +++$+++ 24040 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- was so --
04-473b +++$+++ 24041 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that's not -- that's not established. That's not established at all. His supervisor obviously thought he didn't --
04-473b +++$+++ 24042 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, I didn't mean to suggest that -- the truth of that allegation may be open to question, but what is not open to question --
04-473b +++$+++ 24043 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but it's a very serious allegation for somebody who's in the position that this employee was to make against police officers. And as I understood the case, the supervisor said, "Wow, I don't want loose cannons around down there who are accusing perfectly honest and respectable police officers of violating the law." Now, that --
04-473b +++$+++ 24044 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
04-473b +++$+++ 24045 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- hasn't been proven, either. But --
04-473b +++$+++ 24046 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. I --
04-473b +++$+++ 24047 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that is certainly a possibility. And I do not want to exclude the ability of a supervisor to fire somebody, if that possibility exists, without having to go through extensive litigation.
04-473b +++$+++ 24048 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With -- regardless of whether he was ultimately correct or not, there's no question, and there's no serious argument here, that he had a legitimate basis for believing that police misconduct had occurred. He conferred with his supervisors and his colleagues before writing the memo. Everyone agreed that there was a problem with the warrant. And they took his allegations so seriously that they released a defendant who had --
04-473b +++$+++ 24049 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Say it's a --
04-473b +++$+++ 24050 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But if --
04-473b +++$+++ 24051 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- been --
04-473b +++$+++ 24052 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- borderline case --
04-473b +++$+++ 24053 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- none of that were true -- if none of that were true, he could still file his complaint. Presumably it survives a motion to dismiss, and it goes at least to summary judgment. And that's true in every case of a disagreement between a subordinate and a superior.
04-473b +++$+++ 24054 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true of every public employee government -- excuse me -- public employee speech case, period. Almost all of these cases go to summary judgment. They can't be dismissed at the pleading stage, by and large, because they require factual development. So, all that -- all that this per se rule does is add complexity and the need for greater factual development. It's not the magic bullet that the Petitioners seem to think it is. The Givhan case suggests the unworkability of drawing the first amendment line as what's part of an employee's job. Conferences between a teacher and her principal take in the same level of generality as writing a disposition memorandum --
04-473b +++$+++ 24055 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But what about the cases -- putting aside the clear-cut case where the employee's statement is either clearly correct or clearly incorrect, but what about the case where the objection to what the employee is doing is the manner of the speech? It's on the matter -- it's on the matter of concern, but the supervisor just thinks that it's being handled in a way that's ham-handed or indiscrete. Aren't they going to -- aren't these cases going to cause terrible litigation problems?
04-473b +++$+++ 24056 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, they won't, and they haven't. If the employee -- employer has a concern about the manner in which it's communicated, that is a valid employment concern. I mean, suppose Ceballos had gone -- had a big meeting with --
04-473b +++$+++ 24057 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But under --
04-473b +++$+++ 24058 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- sheriff's department -- -
04-473b +++$+++ 24059 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- then under Pickering --
04-473b +++$+++ 24060 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- embarrassing them?
04-473b +++$+++ 24061 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the test is going to be whether the manner, which may be difficult to recreate, caused -- how much of a disruption it caused to the operations of the office.
04-473b +++$+++ 24062 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ These -- you'd think that if there was that type of disruption and hindrance of the way public agencies were carrying out their missions by these kinds of cases, which have been around for a long time, that you'd see citations to them in the Petitioner's brief, in the United States brief. And their silence on this point is both deafening and telling, because, in fact, it has not been the problem that is being posited here, and this is not a new approach that we're talking about. But getting back to the Givhan case, conferences between teachers and principals are a part of the teacher's job, and it's pure formalism to make the protected status of the Givhan teacher's speech turn on whether the employee manual says a teacher has to work to root out race discrimination. Or what if she was a part-time ombudsman who is charged to improve race relations in the school? Under their approach, you know, boom, it's not protected speech anymore, even though the underlying first amendment value is exactly the same. It also makes it completely subject to manipulation by the employer in making everything a part of an employer -- employee's job, in terms of reporting duties, which --
04-473b +++$+++ 24063 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The first amendment value may be the same, but it -- but what is present is another value. And unless the person is going to go public, in which case the balancing occurs, and assuming there's no prohibition of it, that other value is a very significant one, the ability of public officials to run their offices.
04-473b +++$+++ 24064 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But here's the problem with going public. It's perverse to creating incentive for employees to go public, especially employees in sensitive position -- in a sensitive position. The first amendment consequences here are especially grave, because Ceballos had no realistic alternative channel for communication open to him. Had he gone to a blog, Web site, podcast, and so on, as Petitioners say in their reply brief, or held a press conference, or gone to Los Angeles Times, and so on, he'd be fired, and he'd lose any first amendment case that he brought. So, what avenue does a prosecutor who wants --
04-473b +++$+++ 24065 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But what he has --
04-473b +++$+++ 24066 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to bring --
04-473b +++$+++ 24067 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the argument that I think people are worried about, against you, is, you have a case -- it's actually a wonderful example. Your client thinks that, in the affidavit that the sheriffs gave supporting the warrant, they didn't tell the truth, because they said that whoever was looking into it, you know, said there was a private driveway and that there were tire tracks, and there were no tire tracks, and it wasn't a private driveway. The other side says, "Yes, it was a long road, but sort of like a driveway, and the edge of the -- of the driveway was broken down, and that's what the sheriff's deputies were referring to." I found it a dispute on both sides.
04-473b +++$+++ 24068 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you know --
04-473b +++$+++ 24069 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Now, if, in fact, he's being disciplined for that, the other side is telling you he has a lot of remedies, he has a variety of remedies. Go to the bar associations. Many States have laws, the statutes that protect people under these situations. And why suddenly go to a constitutional court to get the same relief which will short circuit all the other remedies? And if you do, there are going to be thousands of cases less good than yours, and they'll all run to -- to the constitutional court. All right. So, now, what's your reply?
04-473b +++$+++ 24070 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is no baseline level of protection that is available by statute or civil service protections. If the Court recognizes that the speech involved here, exposing Government misconduct and so on, is important for first amendment purposes, as it has previously recognized, then it's -- then it needs to be a baseline level of first amendment protection. And then if whistle-blower statutes are passed that protect it beyond the baseline level, that's fine. I'm not maligning whistle-blower statutes. But there is no such level of protection that is guaranteed. For someone in his position, if the first amendment does not protect his speech, it's just not protected. And I want to get back to -- I started to say why it's so important that the speech be protected. It's not just that the public needs to have a Government of public servants, but the Government needs to know how it's operating. How can Government function efficiently and effectively if it does not possess the information it needs to make responsible choices? When an employment decision is actually made because the employee has made a bad judgment and he reached an unwarranted conclusion in his memo, or the manner in which he conveyed it was terribly indiscrete, he publicized n front of the whole sheriff's department, and embarrassed them, when that's an issue, then the employment can respond, and the courts will make quick -- short shrift of those cases, as they do now.
04-473b +++$+++ 24071 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ When --
04-473b +++$+++ 24072 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that --
04-473b +++$+++ 24073 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It --
04-473b +++$+++ 24074 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- was my point earlier. They can't make short shrift of those cases, because they're not going to be thrown out at the pleading stage. They're going to have to progress at least to summary judgment, probably in every case in which an employee is terminated, because now one of his defenses against termination is, "You're violating my first amendment rights."
04-473b +++$+++ 24075 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, I mean, the Court needs to appreciate that for the universe of public employee free-speech cases, they're mostly decided at summary judgment; they aren't decided on the pleadings. That's already the case. And all that adding a job-duty element to it is, adds complexity and requires more factual development. It -- there's a number of issues here. First of all, what counts as part of an employee's job? Does the speech have to be required by the job, or merely related to the job? How do you judge if the speech meets the test? Do you go by the job description? Common practice? What if the employee's speech is not required by the job, but some independent ethical duty compelled him to come forward --
04-473b +++$+++ 24076 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If Pickering --
04-473b +++$+++ 24077 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- as is the case here? And, also, what if the employee --
04-473b +++$+++ 24078 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Cases involving those questions would have to go to the courts, I assume. But they'd be a small percentage of all the cases that would go to the courts if we adopt your position. I agree, there will still be some cases left that'll have to go to the courts to sort out these questions that you mentioned. But that's going to be a small percentage of the totality.
04-473b +++$+++ 24079 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's already a small percentage of the totality, because cases of this type, which involve speech by a public employee while they're doing their job, however that is formulated, are already a small subset of the universe of public employee --
04-473b +++$+++ 24080 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Perhaps --
04-473b +++$+++ 24081 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- cases.
04-473b +++$+++ 24082 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- because it's been unclear, until this Court has spoken to the subject, and especially in light of the dicta in our prior cases, which says that he has to be speaking publicly. The reason for the -- for the -- for the paucity of cases can be, simply, that the law was not clear, and most people thought the way -- the way your opponent in this case thinks.
04-473b +++$+++ 24083 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's incorrect. I mean, most of the Circuits have addressed this question, and virtually all of them are -- have sided with the Ninth Circuit and has -- have refused to draw a bright-line rule when speech has come up as part of the job. And the -- and as -- Justice Scalia, you seem to be referring to the "as a citizen" phrase the Court has used in its opinions. And I want to address that. No decision by this Court has ever turned on the "as a citizen" phrase, and it's always been used in conjunction with "matter of public concern." The most that can be said is the phrase characterizes the facts of the cases in which the Court used it. The Court hasn't addressed whether speech that's part of the job --
04-473b +++$+++ 24084 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but the Court didn't say this guy had blue eyes.
04-473b +++$+++ 24085 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Speech --
04-473b +++$+++ 24086 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It said he was speaking as a -- that seemed to the Court to be important to its decision.
04-473b +++$+++ 24087 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Speech -- and I don't mean to suggest it has no meaning, but "speech as a citizen" means speech that one can readily imagine a concerned citizen engaging in. You can imagine a concerned citizen coming forward to report race discrimination --
04-473b +++$+++ 24088 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that's not --
04-473b +++$+++ 24089 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in a school.
04-473b +++$+++ 24090 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the context in which this law developed. It developed, originally -- if you were a public employee, you did not have free-speech rights as a citizen. As Justice Holmes said, you know, you might have the right to speak, but you don't have the right to be a policeman. So, the "as a citizen" part didn't come out of happenstance.
04-473b +++$+++ 24091 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-473b +++$+++ 24092 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was recognizing that when you are speaking "as a citizen," juxtaposition to "as an employee," then you do have first amendment rights.
04-473b +++$+++ 24093 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But if you look at the way it was used in Pickering, which, of course, is a different case -- but, in Pickering, the Court was emphasizing that public employees, like all citizens, have an interest in speaking on a matter of public concern. The Court, in Connick, suggested that if the prosecutor there had spoken to bring to light actual or potential wrongdoing or breach of public trust, her speech would have presumptively been protected. If she had done that, she'd be speaking in the same capacity that Ceballos spoke here. One can readily imagine a concerned citizen stepping forward to expose Government misconduct. And it can be difficult to sort out in which capacity an employee is speaking. And sometimes an employee can speak in more than one capacity at once.
04-473b +++$+++ 24094 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If Pickering balancing is done, is there anything special about the situation where the employee's speech is part of the employee's job duties? Is the test applied differently in that situation?
04-473b +++$+++ 24095 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does, because if the employer makes a judgment -- as I said before, if the employer makes a judgment that the employee has carried his job duties poorly, incompetently, insubordinately, and so on, that interest is -- it's either dispositive of the balance, or it's nearly so. And it -- so, from that standpoint, the Court could put a gloss on the Pickering balance that explains or emphasizes that the employer's interests are controlling how the jobs are performed, prevails. But to get back, for a moment, to the --
04-473b +++$+++ 24096 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I'm not sure I understood that answer. So, in this situation, if the employer said that Mr. Ceballos was performing his job poorly, that would be enough to tip the balance in the employer's favor --
04-473b +++$+++ 24097 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If that was --
04-473b +++$+++ 24098 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- under Pickering here?
04-473b +++$+++ 24099 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If that were really the case. In a case like this, it would be clearly pretextual, because not only -- not only was that not the basis that was actually offered, but the employer sided with him initially and released the defendant and said he had a legitimate basis for speaking, and called a meeting with the sheriff's department, and took all these steps to show that they actually sided with him. And only when the sheriff's department accused him of -- as acting like a public defender and said, "We're going to get sued if you don't back us up," then the office changed its position and went against Ceballos. So, in a case like this, it would clearly be pretextual. In another case, however, it would not -- presumably there are cases where it would not be pretextual.
04-473b +++$+++ 24100 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So, basically, the test -- the Pickering balancing is the same in this situation as it is in, let's say, the Givhan situation.
04-473b +++$+++ 24101 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, this case is almost identical to Givhan. The only -- the only thing is that the Court, in Givhan, didn't expressly opine on what capacity in which she was speaking. But it clear that --
04-473b +++$+++ 24102 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but I --
04-473b +++$+++ 24103 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- a teacher speaking --
04-473b +++$+++ 24104 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ May I --
04-473b +++$+++ 24105 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in both capacities --
04-473b +++$+++ 24106 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ May I interrupt you? I thought you said that, in this case, as distinct from Givhan, there would be cognizable employer interests in incompetence, the truth of what was said, the capacity to do the job without roiling the waters unduly, and so on. And that, I take it, is not necessarily so in a Givhan situation. Or is it?
04-473b +++$+++ 24107 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In --
04-473b +++$+++ 24108 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Maybe the employer has the same interest in each. I --
04-473b +++$+++ 24109 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think --
04-473b +++$+++ 24110 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I have --
04-473b +++$+++ 24111 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the employer had the same interest in both cases. The question in Givhan was the fact that it was an internal report to the employer: Did that matter? Did that reduce its protection? And the Court said no. So, the only thing that it would take to make Givhan exactly like this is to put it in the employee manual or make her an ombudsman so it's -- so there's not even room for argument that it was part --
04-473b +++$+++ 24112 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but in --
04-473b +++$+++ 24113 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of her job.
04-473b +++$+++ 24114 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in Givhan, if the employee's assigned duties were all done competently, but she had just gone off the deep end on racial balance or something, the employer would not have had -- - if -- so long as it was the -- a private communication like that, I don't know that the employer would have had an interest in saying, "Well, you're incompetent on the subject of racial balance, and therefore I -- you know, I'm going to demote you or fire you." But in the case in which the employee is talking on the subject within the job description, then the employer has got -- I thought you were saying he's got a direct interest in competence, truth, and so on.
04-473b +++$+++ 24115 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, that's --
04-473b +++$+++ 24116 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
04-473b +++$+++ 24117 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that's correct. That's right. Let me turn, just for a second, to -- getting back to the complexity here, and the linedrawing that has to be done. The Petitioner's own hypotheticals underscore the arbitrariness and unworkability of their approach. In -- if you look in the reply brief, at page 13, note 11, they cite, as an example, a county emergency-room doctor who -- and then they put "is not part of their normal duties," to sort of build it into the hypothetical -- would have a right, a first amendment right, to come forward and talk about inefficiencies in a county emergency room. Whereas, the State health inspector, who finds health code violations in nursing homes do not. The first amendment value in those situations are the same. And, if anything, it's greater for the county emergency -- for the -- for the -- I've said this backwards -- the county emergency-room doctor who's talking about how the -- how the county hospital is operating. There's no difference there. And it's a completely arbitrary linedrawing. Suppose Ceballos had gone outside the chain of command, suppose he had reported to Garcetti that there was police misconduct. It's not clear where that position would -- where their position would lead them. Now it's not part of his normal job duty to go talk to the DA. He's bypassed the chain of command. But it seems that they would say that, "Well, because it was not part of his normal job duty, it -- then it would be protected." And, if so, what message is that sending public employees about whether they should follow their employer's own rules about how you communicate in the workplace and what the chain of command is? It doesn't make any sense to force public employees to go public, as that does more to increase disharmony and disruption in the workplace than having an employee like Ceballos, who followed every rule and every order and instruction regarding how to handle the case and how to communicate within the workplace. Connick said that the first amendment's primary aim is the full protection of speech upon issues of public concern, as well as the practical realities involved in the administration of a Government office. The proposed rule is inconsistent with that primary aim. It doesn't do anyone any good to have U.S. attorneys and DAs blind-sided by coverups in their office because their employees were afraid to come forward and tell their supervisors the bad news.
04-473b +++$+++ 24118 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, for that reason, they're -- for that reason, they're not likely to -- in most instances, they would not be hostile to receiving that kind of information, if it was provided to them.
04-473b +++$+++ 24119 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ May I answer?
04-473b +++$+++ 24120 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure.
04-473b +++$+++ 24121 +++$+++ TRUE +++$+++ MS. ROBIN-VERGEER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Unfortunately, there's too much evidence, there's too much water under the bridge, that shows that public employees who deliver bad news, and are the unwelcome messenger, do face retaliation in their workplaces. And here, Ceballos told his workplace, his supervisors, that police misconduct had occurred, and that was an unwelcome message, and he was retaliated against for that reason.
04-473b +++$+++ 24122 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Ms. Robin-Vergeer. Ms. Lee, you have 3 minutes remaining.
04-473b +++$+++ 24124 +++$+++ FALSE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. I think that's an important point, Justice Alito. I mean, in this case, it's exactly what happened. The supervisors took Mr. Ceballos's assessment seriously. And the difference was, after they further thought about it, they didn't think -- they didn't agree with the proper course of action for the district attorney's office, especially since there was a motion pending, "Let's let the courts decide that." So, if -- where -- I think Plaintiff's suggesting that, but for protecting speech that's required by the duties of employment, employees really would not have much of a right or a remedy if it turns out that the employer believed that maybe they weren't performing their jobs correctly, or, in our case, if the supervisor had considered the speech and said, "You know what? You made a bad judgment call, and we don't think it's entitled to a promotion," that shouldn't give the Plaintiff a constitutional right to challenge that decision. If that -- if the -- if Mr. Ceballos was, in fact, doing his job, that was required of his job, and he was doing it competently, his remedy is not the first amendment. His remedy is not even -- he doesn't even need a whistle-blower statute for that. He could go through civil service, he could go through a formal grievance procedure, and though -- although State statutes on whistle-blowers do vary, there is no State statute, in my understanding, that covers broadly than what the Ninth Circuit does here --
04-473b +++$+++ 24125 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Ms. Lee --
04-473b +++$+++ 24126 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- which is --
04-473b +++$+++ 24127 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- what do you respond to the argument that this has been the law in a number of Circuits and the sky has not fallen?
04-473b +++$+++ 24128 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the reason that job-required speech may not be -- may not be filed, or basis for first amendment retaliation, or the reason why we may not have seen that, may simply be because public employees understandably do not believe they're exercising their first amendment rights when they are simply performing their duties of employment, when they're speaking pursuant to their job duties or writing reports or memorandums pursuant to their job duties. Just because there may not be the significant increase of first amendment litigation in the public employment context for purely job-required speech does not mean that this Court should not consider this issue. And I disagree with the representation that the facts in this case are identical to Givhan. This Court commented in that decision that Givhan was citizen speech. And I don't necessarily think that -- and it -- what -- that -- where our proposal -- our approach would add further complexity to first amendment litigation in an employment context. It's certainly not a difficult decision -- analysis in this case.
04-473b +++$+++ 24129 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you --
04-473b +++$+++ 24130 +++$+++ TRUE +++$+++ MS. LEE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-473b +++$+++ 24131 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Ms. Lee. The case is submitted.
04-480 +++$+++ 24136 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument now in number 04-480, MGM Studios versus Grokster, Limited. Mr. Verrilli.
04-480 +++$+++ 24138 +++$+++ FALSE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Copyright infringement is the only commercially significant use of the Grokster and StreamCast services, and that is no accident. Respondents deliberately set out to capture a clientele of known infringers to stock their services with infringing content, they intentionally and directly promote the infringing use of the service, they support infringing use of the service, and they directly --
04-480 +++$+++ 24139 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I just interrupt for the one -- you said "the only significant use." There's a footnote in the red brief that says the figure is some 2.6 billion legitimate uses.
04-480 +++$+++ 24140 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes, Your Honor. I --
04-480 +++$+++ 24141 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that correct, or incorrect?
04-480 +++$+++ 24142 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think it's an absolutely incorrect assertion of reality, and perhaps I could delve into it and explain why. The evidence in this case, which was presented at summary judgment, showed that 90 percent of the material on the services was either definitely or very likely to be infringing.
04-480 +++$+++ 24143 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, was there a finding of 90 percent?
04-480 +++$+++ 24144 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this was submitted on summary judgment, Your Honor, and we lost summary judgment, so the evidence has got to be construed in the light most favorable to us. And the Ninth Circuit decided the case on the assumption, we'd submit, of 90 percent. But with respect to that 10 percent, what happened, and we submit is completely wrong, is that the Ninth Circuit drew the inference, because it wasn't shown by our expert study, which, by the way, is the only empirical analysis in the case, to be infringing, that the Court could assume that it was noninfringing and then extrapolate from that to a number along the lines of the number that Your Honor suggested. And I think that that's completely illegitimate analysis, factually, and, besides, that number is big only because the overall activity is so big. The scale of the whole thing is mind-boggling. If there are that many noninfringing uses --
04-480 +++$+++ 24145 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It goes to the --
04-480 +++$+++ 24146 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- imagine how many infringing --
04-480 +++$+++ 24147 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- accuracy of your statement that there is no other significant legitimate use.
04-480 +++$+++ 24148 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think there -- I think it's quite accurate on the summary-judgment record, and certainly drawing the inferences in our favor, as we must here on summary -- on this summary-judgment record, that there is commercially significant noninfringing use.
04-480 +++$+++ 24149 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there could be. There could be, both with respect to material in the public domain and with respect to people who authorize the transmission.
04-480 +++$+++ 24150 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think, in the context of this record in this case and the business model of these Defendants, Grokster and StreamCast, that that is true, Justice Ginsburg. I don't think that's right. I think what Grokster and StreamCast are arguing is that this Court's decision in Sony stands for the proposition that their massive actual infringement is -- gets a free pass, a perpetual free pass, so long as they can speculate that there are noninfringing uses out there, such as public-domain uses and authorized uses. We don't think that that -- that Sony stands for any such proposition. We also want to point out that that doesn't help them -- that proposition doesn't help them with respect to one very significant part of this case, and that's the fact that they intentionally built a network of infringing users, and they actively encouraged and assisted infringement. Now, even if there are commercially significant noninfringing uses, and we submit there most definitely aren't under Sony, but even if there are, that's no defense to a contributory infringement claim based on intentional building up of an infringing business and active encouragement and assistance of infringement, and it can't be; because, otherwise, then the fact that they had commercially significant noninfringing uses, again, would be just a free pass to actively promote infringing uses; not merely to support them, but to promote them. And so --
04-480 +++$+++ 24151 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ BUt, your argument, I take it, would be the same if the proportions were reversed. Your argument with respect to -- your current argument with respect to infringing use would be the same if only 10 percent -- if it were assumed that only 10 percent of the use were illegitimate and infringing. Is that correct?
04-480 +++$+++ 24152 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The active-encouragement aspect of our argument would be the same, certainly.
04-480 +++$+++ 24153 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's right.
04-480 +++$+++ 24154 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They don't get a -- they don't get a free pass to encourage any infringement.
04-480 +++$+++ 24155 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that the same as active inducement --
04-480 +++$+++ 24156 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. I think there's --
04-480 +++$+++ 24157 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- as that term --
04-480 +++$+++ 24158 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- there's a lot of --
04-480 +++$+++ 24159 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- is used?
04-480 +++$+++ 24160 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice O'Connor, there's a lot of lingo floating around in this case -- inducement, active encouragement, assistance.
04-480 +++$+++ 24161 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If we should think that the Respondents are not liable for the type of contributory infringement dealt with in Sony, could this Court reach the question of active inducement on this record?
04-480 +++$+++ 24162 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, very definitely. I think -- I think the Court, of course, should find that there's contributory liability under the Sony theory --
04-480 +++$+++ 24163 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know you do, but --
04-480 +++$+++ 24164 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but with respect to --
04-480 +++$+++ 24165 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I just said --
04-480 +++$+++ 24166 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that theory --
04-480 +++$+++ 24167 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- could you --
04-480 +++$+++ 24168 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-480 +++$+++ 24169 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- assume, for a moment, that we didn't; could we, nonetheless, address the active inducement --
04-480 +++$+++ 24170 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice O'Connor, and let me explain why. The District Court in this case issued a partial final judgment, under rule 54(b), granting the Respondent's summary-judgment motions. Now, we argued for contributory liability on two theories in the District Court and in the Ninth Circuit. We argued that there was a lack of commercially significant noninfringing use under Sony, and we've argued the inducement or active-encouragement theory. We argued that both theories entitle us to relief against the current operations of the service, to entitle us to damages, and entitle us to injunctive relief to eliminate the harmful ongoing infringing consequences of this intentionally built-up infringement machine. The District Court granted summary judgment against us and gave a clean bill of health, gave absolution, essentially, to the current versions of the services. The only thing that was left to us, as the Ninth Circuit and the District Court -- and the District Court, both, understood the law, is that we can go back and try to show that, with respect to specific past acts of infringement, if we can show that they occurred at a time when we had given them notice that they were about to occur, and that we had the power to -- and they had the power to stop them at the moment we gave them the notice, that we can get damages for those specific things, and those specific things only. That's all that's left in this case. And I think it's quite clear, from the Rule 54(b) certification order of the District Court that it was only damages with the past services and the past acts --
04-480 +++$+++ 24171 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's not clear -- it's not clear to me from your brief, focusing on the contributory aspect of it, not -- and not the inducement part of it -- it's not clear to me from your brief what your test is. What do we tell the trier of fact, that if there is a substantial part of the use which is noninfringement, if there's any part?
04-480 +++$+++ 24172 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Here's what I -- here's where I think the test --
04-480 +++$+++ 24173 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Leaving aside the inducement.
04-480 +++$+++ 24174 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Here's what I -- here's what we think the test is on the -- what we'll call the Sony aspect of the case, that it's -- the question here is -- Sony poses to us -- is really a touchstone kind of question, not a numerical kind of question. The question under Sony is whether this is a business that is substantially unrelated to infringement. In other words, are they building their business on supporting legitimate activity, or, instead, are they building their business supporting infringing activity?
04-480 +++$+++ 24175 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, then we just throw this to the birds on the trier of fact in every case --
04-480 +++$+++ 24176 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I think --
04-480 +++$+++ 24177 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, how do we know --
04-480 +++$+++ 24178 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that's where you start. That's the touchstone. Now, the numbers, the relative proportions of use, are relevant. In a case like Sony itself, certainly, where the majority use was noninfringing, that's a legitimate business; you don't need to go further. In a case like this one, where, taking the record at summary judgeent in our favor, as it must be, and the Ninth Circuit's assumption that you've got 90 percent infringing use, billions and billions of acts of infringing use, and minuscule actual noninfringing use, it seems to us it's just --
04-480 +++$+++ 24179 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're not saying -- now you're using different tests. Your test is "substantial." All right, on your test, are we sure, if you were the counsel to Mr. Carlson, that you recommend going ahead with the Xerox machine? Are you sure, if you were the counsel to the creator of the VCR, that you could recommend, given the use, copying movies, that we should ever have a VCR? Are you sure that you could recommend to the iPod inventor that he could go ahead and have an iPod, or, for that matter, Gutenberg, the press? I mean, you see the problem.
04-480 +++$+++ 24180 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I think my answer to --
04-480 +++$+++ 24181 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's the answer?
04-480 +++$+++ 24182 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- those questions are: yes, yes, yes, and yes. [Laughter.]
04-480 +++$+++ 24183 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because in each case -- for all I know, the monks had a fit when Gutenberg made his press -- [Laughter.]
04-480 +++$+++ 24184 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- but the problem, of course, is that it could well be, in each of those instances, that there will be vast numbers of infringing uses that are foreseeable.
04-480 +++$+++ 24185 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I disagree with that, Your Honor. Certainly not -- I don't think there's any empirical evidence to suggest, with respect to any of the things that Your Honor just identified -- and let me pick out the iPod as one, because it's the most current example, I guess. From the moment that device was introduced, it was obvious that there were very significant lawful commercial uses for it. And let me clarify something I think is unclear from the amicus briefs. The record companies, my clients, have said, for some time now, and it's been on their Website for some time now, that it's perfectly lawful to take a CD that you've purchased, upload it onto your computer, put it onto your iPod. There is a very, very significant lawful commercial use for that device, going forward. And, remember, I -- what our test -- our test is not "substantial." Our test is that it's a -- it's a -- when it's a vast-majority use, like here, it's a clear case of contribution --
04-480 +++$+++ 24186 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How do you -- how do you know, going in, Mr. Verrilli? I mean, I'm about to start the business. How much time do you give me to bring up the lawful use to the level where it will outweigh the unlawful use? I have to know, going in.
04-480 +++$+++ 24187 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I --
04-480 +++$+++ 24188 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it's one thing to sit back and, you know, calculate with this ongoing business, it's 90 percent/10 percent. But I'm a new inventor, and I'm -- you know --
04-480 +++$+++ 24189 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the weight --
04-480 +++$+++ 24190 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I'm going to get sued right away. I know I'm going to get sued right away, before I have a chance to build up a business.
04-480 +++$+++ 24191 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that's right, Your Honor, and here's why. To -- it's not just the absence of commercially significant noninfringing uses that demonstrates contributory infringement. I mean, you have to demonstrate that you're making a material contribution, with knowledge that you're doing so. The inventor, at the outset, is not in that position. They're not making a contribution with knowledge that they're doing so. Do they have absolute certainty? No, they don't have absolute certainty.
04-480 +++$+++ 24192 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I don't quite understand the -- I take it, inventors are profit-motive-driven, and if they know that something they're working on is going to have copyright experience, you -- have got copyright problems, you can't just say, "Oh, well, the inventor's going to invent anyway."
04-480 +++$+++ 24193 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- but the problem --
04-480 +++$+++ 24194 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or did I misunderstand your --
04-480 +++$+++ 24195 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I -- I think that you have -- to show contribution, you should have -- you have to be making a material contribution, with knowledge that you're doing so. And so --
04-480 +++$+++ 24196 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the inventor of Xerox does that. I mean, he puts out the machine. He knows some -- he knows a lot of people are going to use it to Xerox books.
04-480 +++$+++ 24197 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that's right, Justice Scalia. I don't think there's anywhere close to a showing -- I don't think there could be anywhere close to a showing that you've got the vast majority of use from -- for infringement from the time that the device comes out. I just don't think that's --
04-480 +++$+++ 24198 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, let's go --
04-480 +++$+++ 24199 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- realistic.
04-480 +++$+++ 24200 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- let's go from Xerox back to your iPod. How is that clear in the iPod case? I may not understand what people are doing out there, but it's certainly not clear to me. I know perfectly well I could go out and buy a CD and put it on my iPod, but I also know perfectly well that if I can get the music on the iPod without buying the CD, that's what I'm going to do. And I think it's reasonable to suppose that everybody else would guess that. So why, in the iPod, do you not have this Damoclean sword?
04-480 +++$+++ 24201 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because I don't actually think that there is evidence that you've got overwhelming infringing use. I just think that's -- it's not a -- it's not a --
04-480 +++$+++ 24202 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, there's never evidence at the time the guy is sitting in the garage figuring out whether to invent the iPod or not. I mean, that's --
04-480 +++$+++ 24203 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think when you get to the --
04-480 +++$+++ 24204 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the concern.
04-480 +++$+++ 24205 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I think when you have vast-majority infringing use, they should be on the hook. Now, I don't think --
04-480 +++$+++ 24206 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, but you're --
04-480 +++$+++ 24207 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- you have that problem --
04-480 +++$+++ 24208 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but you're --
04-480 +++$+++ 24209 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- with the iPod, and --
04-480 +++$+++ 24210 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you're not answering -- you're not answering the question. The question is, How do we know in advance, on your test, anything that would give the inventor, or, more exactly, the developer, the confidence to go ahead? As was said a minute ago, he knows he's going to be sued immediately. There isn't a product performance out there, as there is in this case. So, on your substantiality theory, why isn't it a foregone conclusion in the iPod that the iPod loser -- or developer is going to lose his shirt?
04-480 +++$+++ 24211 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first of all, I don't -- I think it's just counterfactual to think that there is going to be overwhelming infringing use of the iPod in the way that there indisputably is here. Second, to the extent you get the closer cases, it is our position, as I gather it is the position of the United States, that you look at -- to see what kind of business model the Defendant is operating under. Is it a -- is it -- are they marketing it for legitimate purposes? Are they taking reasonable steps to prevent infringement? If they are, then they -- then they're not liable. Third --
04-480 +++$+++ 24212 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's your second argument, I think. I thought you were going to just stick with the -- with the first one. I mean, that's an inducement argument.
04-480 +++$+++ 24213 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, that's inducement.
04-480 +++$+++ 24214 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't think it is an inducement argument, because it doesn't go all the way to requiring us to show, as we can show here, that they've got intent. But I do think that the issue is, you know, really -- in the real world, you know, it isn't the case that these guys have gotten immediately sued. That's just not right. And the -- and the reality is that what happens is what happens here. There's perfectly valid uses --
04-480 +++$+++ 24215 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it is the case under the test you're submitting to us.
04-480 +++$+++ 24216 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't think that's right, Justice Kennedy. If there's vast-majority infringing use, and you continue to operate your business with the knowledge that there's vast-majority infringing use, then you've got liability. Now, of course, we do have all the additional inducement facts here, but we've also got those facts. And in the real world --
04-480 +++$+++ 24217 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, are you dealing with active inducement as just a theoretical add-on, or is that a satisfactory way to resolve this case?
04-480 +++$+++ 24218 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that it is a -- I think --
04-480 +++$+++ 24219 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't understand --
04-480 +++$+++ 24220 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Neither, is the answer.
04-480 +++$+++ 24221 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- your pitch.
04-480 +++$+++ 24222 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Neither, is the answer. It is a basis for resolving this case, but not to the exclusion of getting the law right on Sony.
04-480 +++$+++ 24223 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you couldn't get summary judgment. Your reply brief said, "This case is so clear that we should get summary judgment." If inducement is the theory -- you have just said, you have to show intent --
04-480 +++$+++ 24224 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-480 +++$+++ 24225 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- so you could not --
04-480 +++$+++ 24226 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We --
04-480 +++$+++ 24227 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you'd have to go to trial.
04-480 +++$+++ 24228 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We agree with that. We think, in a situation where the vast majority of the use is infringing and there isn't any evidence of a legitimate business plan, on the Sony part of the case we would be entitled to summary judgment. We agree with you, Your Honor, that with respect to --
04-480 +++$+++ 24229 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Sony itself had a trial --
04-480 +++$+++ 24230 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
04-480 +++$+++ 24231 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- a full trial.
04-480 +++$+++ 24232 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It came after the trial, that's right. But the -- a key point I think I want to make here is that this is not about this technology. What happens in the real world is that inventors come up with technology. Some people use it for lawful purposes and valid purposes, as some people use this technology for; some people abuse the technology to run business that -- businesses that are devoted to expropriating the value of copyrights. That's exactly what's going on in this case. If I could reserve the balance of my time, Mr. Chief Justice.
04-480 +++$+++ 24233 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Very well, Mr. Verrilli. Mr. Clement, we'll hear from you.
04-480 +++$+++ 24235 +++$+++ FALSE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The decision below allows companies, like Respondents, to build a business model out of copyright infringement without fear of secondary liability. As long as they avoid obtaining actual knowledge that a particular customer is about to infringe a particular copyright, they are free to operate a system that involves massive copyright infringement with full knowledge that the draw of the entire system for customers and advertisers alike is the unlawful copying. No matter much how much of that system --
04-480 +++$+++ 24236 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what do you think Sony allowed? It talked about -- if it's, what, capable of substantial noninfringing use, it's okay?
04-480 +++$+++ 24237 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Justice O'Connor. And then I think the Court explained and elaborated that the test is whether or not there are commercially significant noninfringing uses. And I would say what the Ninth Circuit did in this case is basically adopt the test of mere theoretical capability for noninfringing use, plus maybe some anecdotal evidence.
04-480 +++$+++ 24238 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what -- and your test is whether there's a substantial use that's lawful?
04-480 +++$+++ 24239 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think the way we would try to articulate it is that if the way that the business model of the particular Defendant is set up is that they are not involved in a business substantially unrelated from copyright infringement, that there should be liability in that situation. And I think in an extreme case like this, where over 90 percent of the business -- and I think Mr. Verrilli correctly describes that it's not a minimum of 90 percent; it's over 90 percent -- because the only evidence on the other side is anecdotal evidence that there are such things as public-domain works.
04-480 +++$+++ 24240 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Clement, where did the 90 percent figure come from? I know we have to accept it because it's summary judgment, but where did it come from?
04-480 +++$+++ 24241 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It came from a study by Petitioners' experts of the actual operation of the system. And what they did is, they identified about 75 percent of the works as clearly infringing works, another 15 percent of the works were identified as very likely infringing works, then there were 10 percent they just couldn't tell anything about.
04-480 +++$+++ 24242 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought it was just limited to music.
04-480 +++$+++ 24243 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think the -- it's not -- the system is not limited to music.
04-480 +++$+++ 24244 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know, but I thought the study was about music.
04-480 +++$+++ 24245 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure about that, but --
04-480 +++$+++ 24246 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I thought -- I mean, you know, we've had 90 briefs in this, and some briefs tear it apart, and others support it, but we also have briefs from the ACLU saying you could put whole libraries within this system.
04-480 +++$+++ 24247 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-480 +++$+++ 24248 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The question I wanted to ask you is, given that concern, that there are, conceptually anyway, really excellent uses of this thing, does deliberate -- what is the word?
04-480 +++$+++ 24249 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Actual inducement?
04-480 +++$+++ 24250 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. Because what you are worried about, it seemed to me that the actual inducement would take care of. And if you sent it back and said, "Let's have a trial on actual inducement." If this really is the extreme case you're talking about, why wouldn't the Petitioners here be bound to win that trial?
04-480 +++$+++ 24251 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, based on our review of the record -- and we haven't been able to see the entire record -- I agree with you, the Petitioners ought to be able to win this case on an active-inducement ground, and that's a narrow way to decide the case. I do think, though, this Court might have to say something about the Sony issue before it reached that issue. And if it did feel compelled to do that, I think it would be a mistake to sanction the Ninth Circuit's reading of Sony, because, you're right, there's a theoretical possibility that public-domain works can be exchanged on this system, but it's also true that this system doesn't have much of a comparative advantage for trading in public-domain works.
04-480 +++$+++ 24252 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you got interrupted a bit. Tell us, in the simplest way you can, what test you think Sony stands for and how the Ninth got it wrong, if you believe it.
04-480 +++$+++ 24253 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice O'Connor, it stands for -- the test is whether or not there are commercially significant noninfringing uses. The Ninth Circuit got it wrong because it thought that test was satisfied by a combination of two things: being able to point out that there were such things as public-domain works or authorized sharing of the Wilco album, for example, and anecdotal evidence that you could actually do that. Now, if that were the right reading of Sony, with respect, I would suggest that footnote 23 of this Court's Sony decision would have been the sum total of the Court's analysis, because in that footnote the Court observed that there were broadcasts of public-domain works.
04-480 +++$+++ 24254 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose the owner of the instrumentality, the program, thinks that there's going to be a vast area of lawful use, and he knows that there's going to be some abuse at the -- in the short term, but he does everything he can to discourage that. He says, "This is a two -- P2P is going to revolutionize the way we talk to each other, there's things in the public domain. Please don't use this for copyright." But he knows that there's going to be some infringement, let's say that it'll be 50 percent of the use, in the short term. Can he use the program?
04-480 +++$+++ 24255 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it's 50 percent infringement in the short run? We think, absolutely, yes.
04-480 +++$+++ 24256 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, that he can --
04-480 +++$+++ 24257 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He can --
04-480 +++$+++ 24258 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- use the program.
04-480 +++$+++ 24259 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- use the program. I mean, as we suggest, if you're at a 50-50 -- I mean, if you're anywhere below 50 percent, we think that there should be no liability under the Sony standard. If you're above that level and there's sufficient evidence that you're really targeting infringing uses, then I think maybe there would be liability. But in the hypothetical you suggest, there would clearly not be liability in that situation. What we would like to suggest, though, is there ought to be enough room for -- under the Sony test, before you reach actual inducement, to capture somebody where they've clearly set out, as a business model, to deal with the infringing uses. And the only thing they point to are the theoretical possibility, anecdotal evidence, that it could be used for public-domain works.
04-480 +++$+++ 24260 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If there's more, they could bring it out at trial, could they not? The difference between your position and Mr. Verrilli, I take it, is that you think there should be not summary judgment for the Petitioners, but a trial.
04-480 +++$+++ 24261 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's a fair point, Justice Ginsburg. We're operating in something of a disadvantage, because we haven't seen the entirety of the record. Based on the record that I've seen, I think there's a close case, unless perhaps once this Court clarifies the legal standard, Respondents put on additional evidence. I think this is a close case, where you actually could grant summary judgment in favor of the Petitioners. But certainly we have no objection to having a trial on the Sony issue in this case. What we object to is the Ninth Circuit rule, which, in every case, is going to obviate the need for a trial, based on a showing that there are such things as public-domain works.
04-480 +++$+++ 24262 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The inducement -- the inducement point doesn't get you very far. Presumably a successor to Grokster, or whatever this outfit is called, could simply come in and not induce anybody but say, you know, "We're setting up the same system," know very well what people are going to use it for, but not induce them. And that would presumably be okay.
04-480 +++$+++ 24263 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's potentially right --
04-480 +++$+++ 24264 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which is why you need --
04-480 +++$+++ 24265 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Justice Scalia --
04-480 +++$+++ 24266 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the Sony --
04-480 +++$+++ 24267 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and that's why I think it's important to preserve a role for the Sony test. And, again, this Court, in Sony, could have adopted a simple theoretical-capability test, but this Court, instead, adopted a test that required there to be shown some commercially significant use for the -- noninfringing use. And even in the patent context, where I think the test is, and should be, more demanding, even in that context, cases like Fromberg, which we cite at page 19 of our brief, show that there is an analysis to make sure that the suggested theoretical noninfringing use is, in fact, a practical use of the item.
04-480 +++$+++ 24268 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Will you give a company ten years to establish that?
04-480 +++$+++ 24269 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think --
04-480 +++$+++ 24270 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, what I worry about is the suit that just comes right out of the box, as soon as the company starts up. Will you give the company a couple of years to show that it's developing a commercial use?
04-480 +++$+++ 24271 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia, we have concerns about that, as well. I don't know that we would give them ten years of, sort of, free space to do as -- facilitate as much copyright infringement as possible. I think what we would say is that when you're -- when a suit targets a nascent technology at the very beginning, there ought to be a lot of leeway, not just for observed noninfringing uses, but for the capacity of noninfringing uses. I don't think, in fairness, that's what you have before you in this case, because this is a case where the peer-to-peer technology was out there, it was employed in a particular way, with a centralized server, in a way that was actually -- had a lot of users involved in it, and they were users of the old Napster system, that had a distinct character. They were using that system for infringing copyrighted musical works. And then these individuals come along and seek to capitalize on that market. That is their business plan from day one. And it's not some newfangled idea. The only newfangled idea here is that if you give something of value away for free by ignoring the copyright laws, you're likely to draw consumers to your site, and you're likely to attract advertisers. But that cannot be the kind of innovation that we want to further through a development of secondary liability into the copyright laws.
04-480 +++$+++ 24272 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Clement, in one way this presents an easy case for answering Justice Scalia's question, but what about a case in which there isn't the Napster example to start with? Should there be some kind of a flexible rightness doctrine in response to suits, as Justice Scalia put it, against the inventor or developer right out of the box?
04-480 +++$+++ 24273 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, whether you call it a flexible rightness doctrine or you develop the doctrine in a way that is very forgiving --
04-480 +++$+++ 24274 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Congress of laches.
04-480 +++$+++ 24275 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a brand-new technology.
04-480 +++$+++ 24276 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Congress of laches.
04-480 +++$+++ 24277 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. I mean, I think -- the way I would style it is to develop a substantive standard that's very forgiving of brand-new technologies and allows people to point to, in those situations, capabilities for future uses. I do think that --
04-480 +++$+++ 24278 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How would you express the -- how would you express that, that substantive standard that anticipates, just as you suggested we do?
04-480 +++$+++ 24279 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I was just trying to articulate it, which is to say that this Court has talked about the capacity for noninfringing uses. I think, with a mature product like this, it's fair to point to how it's actually used in the marketplace.
04-480 +++$+++ 24280 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Clement.
04-480 +++$+++ 24281 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-480 +++$+++ 24282 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Taranto, we'll hear from you.
04-480 +++$+++ 24284 +++$+++ FALSE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: Because Respondent's software products are tools of autonomous communications that have large and growing legitimate uses, their distribution is protected under the clear Sony rule. That rule should be adhered to by this Court, because copyright does not generally step into the role of product control, because doing so would cause overkill. The Sony rule safeguards legitimate uses by protecting the product and --
04-480 +++$+++ 24285 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but active inducement is a doctrine that's been employed to curb the intentional encouragement of noninfringing uses, isn't it?
04-480 +++$+++ 24286 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not in copyright law, it hasn't, but that's not my primary point. My primary point is that it is critical, it is jurisdictionally critical, to separate two separate acts, distributing the product and any of the past acts that the Petitioners allege constituted encouragement, their synonym for "inducement," which were explicitly outside the District Court ruling that was certified for interlocutory appeal. Questions about past acts not inherent in the distribution of our product remain in --
04-480 +++$+++ 24287 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they are inherent. They are inherent. I mean, the point is that those past acts are what have developed your client's current clientele.
04-480 +++$+++ 24288 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't think so, Justice Scalia. The Petitioners -- this is what I think is here and usable about the past acts. They claim that there is an intent, as part of the current distribution of the product, to profit from increased use, including generically known infringing use, a point on which the District Court and the Court of Appeals assumed to be the case. Beyond that, the question whether there were encouraging acts, any kind of promotional activity that says, "We ask you to, and urge you to, use this product for infringement," that is not here, because that was explicitly part of the past activities, removed from the District Court decision. And when the Petitioners sought interlocutory appeal, they said, expressly, these were "distinct and severable," in their terms -- that's a quote --
04-480 +++$+++ 24289 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I don't --
04-480 +++$+++ 24290 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- from the past.
04-480 +++$+++ 24291 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- understand how you can separate the past from the present in that fashion. One, I suppose, could say, "Well, I'm going to make inducing remarks Monday through Thursday, and I'm going to stop, Thursday night." The sales of the product on Friday are still going to be sales which are the result of the inducing remarks Monday through Wednesday. And you're asking, in effect -- you're asking us -- to ignore Monday through Thursday.
04-480 +++$+++ 24292 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I'm not. Let me try to be clear. There is a theory, not present here, along exactly those lines, which Petitioners are entitled to argue, back in the District Court, without a remand, because that issue remains in the District Court. It is a theory that says, "You started your business with illegitimate acts, your current business is a causal consequence of that." I will say, there is not one bit of evidence that the Petitioners introduced, in resisting summary judgment, in support of that theory. It is, in fact, a highly implausible theory, for reasons that the District Court can explain, because users of software like this switch readily. There is no plausible lock-in effect to this software. People go from Kazaa to Grokster to eDonkey to BitTorrent week by week. That was -- that is an available theory. You would --
04-480 +++$+++ 24293 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then why was current -- why was inducement, as a current theory of recovery, even the subject of summary judgment? It seems to me that to make it a summary judgment is implausible to a nonworldly degree.
04-480 +++$+++ 24294 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not entirely --
04-480 +++$+++ 24295 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, I thought you were saying that, so far as the inducement theory of recovery is concerned --
04-480 +++$+++ 24296 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-480 +++$+++ 24297 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the only summary judgment that was granted was with respect to current acts of inducement, the way the company is acting now, not the way the company was acting last year. And my question is -- if that is correct, then I don't see how summary judgment could even intelligibly have been considered.
04-480 +++$+++ 24298 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think -- because as the Petitioners insisted when they pressed for interlocutory appeal, they said these were distinct and severable, because, as Justice Scalia referred to before, the important question, on a going-forward basis, is whether the current set of activities -- this software, given how it operates, being generally distributed -- is a vendor's -- the distributor of that software -- secondarily liable because somebody else, tomorrow, can do exactly the same thing, without the baggage of any past acts.
04-480 +++$+++ 24299 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I don't want to get us too far off the track on this question, but it just seems to me that what you've done before bears on what you know, or have reason to know, on an ongoing basis.
04-480 +++$+++ 24300 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree with that, Justice Kennedy, but there's no dispute about that. This case was decided on the assumption, which we are not contesting here, that the Respondents here knew that there would be widespread infringing use of a product that they were putting out, and, what's more, that they intended to profit from maximum use of the product, which necessarily would include infringing use, which they had no ability to separate from noninfringing use.
04-480 +++$+++ 24301 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, then why don't you tell us what's wrong with the Government's test and with the Petitioner's test, the substantial-use part of it?
04-480 +++$+++ 24302 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm not entirely -- I think there are several tests, and I'm not sure I followed them all here. We think it is critical that the Court adhere, for innovation protection, to the very clear Sony rule.
04-480 +++$+++ 24303 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That, Mr. Taranto, is something I find very puzzling. There is a statement -- one could take it as clear -- "capable of substantial noninfringing use." That would be very clear, I agree. But Sony goes on for 13 more pages. If the standard were all that clear, it would have stopped there. And usually when you're interpreting a document, one rule is, you read on, and if you read on, you find we need not give precise content to the question of how much use is commercially significant. That doesn't sound very clear to me. Or if you then read back, as a careful reader would, then you find this statement that the primary use of the Sony machine for most owners was time-shifting, a use that the Court found either authorized or fair, and, hence, noninfringing. So I don't think you can take from what is a rather long opinion, and isolate one sentence, and say, "Aha, we have a clear rule."
04-480 +++$+++ 24304 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that sentence, Justice Ginsburg, is expressly stated to be the rule of law that is being applied. And then the Court went on to apply it to say, there are two things that satisfy the test. The primary thing, of course, is what takes up most of those 13 pages, the question whether in-home time-shifting is fair use, a question that was of considerable interest to tens of millions of individuals throughout the United States. But the Court, in fact, didn't rely only on that; it said, "In addition, there was this roughly 7 to 9 percent use of authorized time-shifting." It wouldn't have had to even talk about that if the primary use, you know, was the entirety of --
04-480 +++$+++ 24305 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Verrilli, I hope you won't waste a lot of your time on this point. This Court is certainly not going to decide this case on the basis of stare decisis, you know, whatever else is true.
04-480 +++$+++ 24306 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I will -- let me urge that there is, in fact, considerable weight to stare decisis, because there are major technological industries that have relied on the rule that derives from patent law that there is no, kind of, predominant-use kind of meaning to the Sony rule. In the patent context from which this came, all there has to be, in Professor Chisum's words, is, uses that are not farfetched, illusory, uneconomical for the user. And the inquiry there is, is this a product whose -- where the same features that are alleged to cause the infringement are also, in some nontrivial way, used for noninfringement?
04-480 +++$+++ 24307 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is -- what is the answer to Justice Kennedy's question? I took it, whether -- for the last 21 years, industry throughout America has taken the standard as being approximately whether it is capable of substantial -- commercially significant substantial noninfringing uses.
04-480 +++$+++ 24308 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-480 +++$+++ 24309 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- and the country seems to have survived that standard. There is innovation. There are problems in the music industry, but it thrives, and so forth. So there is an argument for just following it, because it's what it is. But suppose it's totally open. Why should that be the right test, instead of some other test, like substantial use, et cetera?
04-480 +++$+++ 24310 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- because I --
04-480 +++$+++ 24311 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That, I think, was the question, and I'm very interested in your answer.
04-480 +++$+++ 24312 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. Because I think any alternative is worse. A focus on intent to profit means that virtually every business which requires money and has the least bit of sensible forward-looking thinking about what the usage is going to be will be subject to litigation, arguing about their knowing that a substantial amount of the value of the product was going to be based on infringement.
04-480 +++$+++ 24313 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But --
04-480 +++$+++ 24314 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Every --
04-480 +++$+++ 24315 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- but what you have -- what you want to do is to say that unlawfully expropriated property can be used by the owner of the instrumentality as part of the startup capital for his product.
04-480 +++$+++ 24316 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- well --
04-480 +++$+++ 24317 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I -- just from an economic standpoint and a legal standpoint, that sounds wrong to me.
04-480 +++$+++ 24318 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm not entirely sure about that formulation. Sony clearly sold many more tapes because of the illicit activity of Library. Sony presumably sold more machines, maybe even priced them higher, because there was a group of people who wanted the machine for the illicit activity. The Apple iPod, in the 60 gigabit version, holds 15,000 songs. That's --
04-480 +++$+++ 24319 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you think that --
04-480 +++$+++ 24320 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- a thousand CDs.
04-480 +++$+++ 24321 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- unlawfully expropriated property can be a legitimate part of the startup capital.
04-480 +++$+++ 24322 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I -- what I think is that, as a matter of general judicially formulated secondary copyright liability law, there is no better policy balance that the Court can strike, and that only Congress can make the judgments about what the industry-wide facts are. And I -- let me pause there a minute -- there are no industry-wide facts in this record. Every citation in the Petitioner's brief about the magnitude of harm to the industry is extra-record citation. There are 26 billion --
04-480 +++$+++ 24323 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then perhaps there should be a trial so it would all come out.
04-480 +++$+++ 24324 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Petitioners -- it's not just that they didn't have it in their brief, they did not submit any evidence in response to the summary-judgment motion that said the rule of Sony should be applied here because the magnitude of the injury to the recording industry or in -- someday in the future, to the movie industry is X. Zero evidence --
04-480 +++$+++ 24325 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, they weren't concentrating on the damage to them, they were concentrating on the facilitation of copying that was provided. And you don't question that this service does facilitate copying.
04-480 +++$+++ 24326 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As does the personal computer and the modem and the Internet service provider and the Microsoft operating system. There's -- everything in the chain that makes this work is absolutely essential to facilitating the copying. The question is which pieces, if any, and under what standard, get singled out for a judicially fashioned secondary copyright liability doctrine.
04-480 +++$+++ 24327 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you said -- I think you were saying -- this is something for Congress to solve; it's not for the Court. But the Court is now faced with two apparently conflicting decisions: Aimster, in the Seventh Circuit, the Ninth Circuit decision. And if you're just looking at this in the abstract, you might say, "Well, it's -- isn't it odd that Napster goes one way in the Ninth Circuit, and this case goes another way?"
04-480 +++$+++ 24328 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me suggest why that's not odd and why the cases are not just different, but critically different. Napster rests -- never mind the exact words of the opinion -- Napster involves something more than distribution of a product. Napster, the company, was sending out, in response to requests, "Where is this filed," an answer, the information, "The file is here." Every time it sent out that information, if it had been told by Mr. Verrilli's client, "That file may not be shared," it was, with specific knowledge to that file, giving assistance. That is a classic contributory infringement case based on specific knowledge of infringement. And the reason --
04-480 +++$+++ 24329 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why isn't this a classic willful-ignorance case?
04-480 +++$+++ 24330 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because willful ignorance is about having possession of information and refusing to look at it. This -- that does not occur here. This tool of autonomous communication is one in which there is no mother-may-I system, no chaperone, no information provided to us at the time that there is any request. When I ask for a file from you, there is no information that goes back to StreamCast or to Grokster --
04-480 +++$+++ 24331 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Sure, but I thought willful ignorance was basically a certainty of what was going on without empirically verifying it, so as to, sort of, maintain the guise of one's hands over one's eyes. And it seems to me, if that's what it is, that's what we've got.
04-480 +++$+++ 24332 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't think so, I think, on either account. My understanding of where in the law willful ignorance has bite is when you do have the information right in front of you, and you refuse to look at it. And, what's more, the change of system to an autonomous communication tool, where there is no intermediary, which is what all of their filtering systems would require, getting permission in advance, the change of tool is not just some way of blinding oneself to the information.
04-480 +++$+++ 24333 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, I think it would also include disabling yourself from looking at it. And so, I think it's an important part of your case, that you didn't adopt this new system of decentralizing the file so that it's in the computers, out there, solely in order to get around Napster.
04-480 +++$+++ 24334 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. And I think that the summary-judgment record on this is -- it, I mean, doesn't leave any real room for dispute. Seeking --
04-480 +++$+++ 24335 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, wait. In respect to that -- I mean, is it open? If you win on the question of the standard, is it open, or would we have to remand it for them to argue, in light of the history, in light of what they do now, they, your client, with knowledge of infringement, actively encouraged users to infringe copyright using their -- using the Grokster technology, and, indeed, knowingly would include willful blindness?
04-480 +++$+++ 24336 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think --
04-480 +++$+++ 24337 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because -- as I had gotten that from one of these amicus briefs, you know, that's their standard -- they say a willful -- of willful, deliberate inducement. And that, it seems to me, important that they be able to argue that. Now, can they argue it, in your opinion, if we do nothing but affirm the Ninth Circuit?
04-480 +++$+++ 24338 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that they can certainly argue, with an affirmance by this Court, that all of the past acts, to use the District Court's term, constitute a basis for a -- inducement liability. There would be some legal questions about whether there is such a thing as inducement liability, but they get to argue that. No remand is required for that. The record in this case establishes that one reason for going to the decentralized system, without a central index and a third-party intermediary, was to -- was a reaction to the Ninth Circuit's Napster decision that said, "That's a legal problem." But it is also, I think, beyond genuine dispute, for summary-judgment proposes, that there were other reasons. You don't have to have the servers to maintain. When StreamCast, in particular, was running a Napster-like system, the so-called openNap system, it had ten servers, and quickly maxed out and started crashing, and immediately concluded -- I think this is at page 789 or -- and 798 of the joint appendix -- we would have had to start doubling, tripling, quadrupling the number of services, and we didn't have --
04-480 +++$+++ 24339 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Taranto --
04-480 +++$+++ 24340 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the money to do it.
04-480 +++$+++ 24341 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- can I ask -- I'm still a little puzzled about the posture of the case.
04-480 +++$+++ 24342 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-480 +++$+++ 24343 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because I read the District Court opinion. I think he said -- the judge said that both parties agreed that there were no disputed issues of fact that would preclude the entry of summary judgment in either way, no disputed issues relative to whether to grant relief. And I -- it's on page 24a of the cert petition. And I understand you to be saying that leaving everything alone, affirming would allow the case to go forward with your adversaries seeking damages on an active-inducement theory. Am I correct?
04-480 +++$+++ 24344 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I think -- all I read this, page 24a, to say is that both sides filed for summary judgment, so each one, of course, thought that there was -- that it was entitled to summary judgment. Each --
04-480 +++$+++ 24345 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it says, "Both parties believe there are no disputed issues of fact material to Defendant's liability."
04-480 +++$+++ 24346 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's just because each side filed summary judgment. Each side filed extensive --
04-480 +++$+++ 24347 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So then your answer to my question is that, yes, if we affirm, as a possibility, they could continue to seek damages on an active-inducement theory.
04-480 +++$+++ 24348 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, absolutely. And there are -- there are affirmative defenses that are not even part of this motion that, of course, would, by themselves, preclude summary judgment in their favor.
04-480 +++$+++ 24349 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And then one other --
04-480 +++$+++ 24350 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought --
04-480 +++$+++ 24351 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- question I had. Does the record contain their proposed form of injunction that they requested?
04-480 +++$+++ 24352 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think it does, beyond the statement at the end of their summary-judgment pleading that asked for a very general injunction, "Stop the Defendants from infringing." I'm not aware of anything more specific. Let me comment a bit on what the record says about the substantial legitimate uses. This is not a question of simply saying --
04-480 +++$+++ 24353 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Taranto, before you go back to that, I wanted to be clear on what you were saying would be left over for trial.
04-480 +++$+++ 24354 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-480 +++$+++ 24355 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because, as I read your briefing, it was, "Well, they can argue about some bad things that Grokster was doing in the past, but this decision says: henceforth, what we're doing is okay. The case zeroed in on now and the future, and the only thing that was left open was something that is over and gone could get damages for it." But I thought that this judgment gave you an okay, a green light, from now on.
04-480 +++$+++ 24356 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- my view that -- I mean, this was not talked about in these terms. I believe it ought to be open to the Petitioners, not only to prove that past acts were, themselves, illegal, but that the causal consequence of those past acts should somehow reach forward into the current acts.
04-480 +++$+++ 24357 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then what is the point of the current summary judgment?
04-480 +++$+++ 24358 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The point of the current summary judgment is that there is -- the forward-looking character of the activities taking place, starting in September 2002 on forward, has been held, by itself, not to be a basis for --
04-480 +++$+++ 24359 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you're saying the summary judgment simply, in effect, says, "They're not doing anything wrong now, but we have left open the question, not merely of what they have done wrong in the past, but whether what they did wrong in the past can carry forward into the future"?
04-480 +++$+++ 24360 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As I say, it wasn't stated in those terms, but, yes, I think that --
04-480 +++$+++ 24361 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's bizarre.
04-480 +++$+++ 24362 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think so, because -- [Laughter.]
04-480 +++$+++ 24363 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- because the important question is, to the Petitioners, the entire recording and movie industry, Is this set of activities, which you and I, tomorrow, can start engaging in, one that they can stop? There are literally a handful -- on page 7 and 8 of their brief --
04-480 +++$+++ 24364 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you're saying -- what it really says is, "There's nothing to enjoin, but there may very well be something to recover for," --
04-480 +++$+++ 24365 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-480 +++$+++ 24366 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "even as to future activity."
04-480 +++$+++ 24367 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, exactly right. And they would, of course, have had to make the very implausible assertion, in a business in which there is no plausible lock-in, that somehow a set of isolated events -- e-mails -- a handful of e-mails out of literally, between the two companies, 1700 a day, that might have said, "Why don't you load some music up"? -- are somehow the causal -- the cause of what is going on today. Let me say a few words about what the record says about legitimate activities. Altnet is a company -- this is at 1169 and -70 of the joint appendix -- they say that they have distributed, on peer-to-peer systems, hundreds of thousands of authorized songs, and, they say, millions of pieces of -- of video games, leading to sales. This is not a trivial number. JIVE, at page 67 to 68, speaks about 250,000 peer-to-peer downloads of a music video. The Internet archive, which is talked about in the record, and if you now look at what they are on their Website, now lists some several hundred musical artists with 20,000 recordings which are being put out there for peer-to-peer distribution. The Creative Commons is licensing all kinds of things for authorized public distribution. There are musical bands --
04-480 +++$+++ 24368 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because, I gather, that some artists don't make money from the records, but make money from the popularity that draws fans to their concerts.
04-480 +++$+++ 24369 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My understanding --
04-480 +++$+++ 24370 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So they're willing to give away the records for free.
04-480 +++$+++ 24371 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- my understanding is "some" is a great understatement, yes. The bands talked about at 159 and 169 to '70 of the joint appendix, which have authorized their live concert recordings to be traded among -- on -- to be traded. The GigAmerica business is in the business of compiling -- this is at 323 of the joint appendix -- of compiling musical recordings and other things for authorized distribution. The world of music distribution and video distribution and movie-trailer distribution and, in small instances now, text distribution, but growing, is changing and making use of this extremely innovative, low-cost tool. The great innovation of this tool of communication --
04-480 +++$+++ 24372 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Taranto?
04-480 +++$+++ 24373 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-480 +++$+++ 24374 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In your motion for summary judgment, did you ask that the Plaintiff's claim be dismissed?
04-480 +++$+++ 24375 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we asked for judgment, in our favor on their claim, that our current activities constituted a basis for secondary liability. I'm not sure if word "dismiss" was --
04-480 +++$+++ 24376 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Were there other claims? You said "on their claim." Were -- did they make other claims?
04-480 +++$+++ 24377 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They had a generic claim about secondary copyright liability. We made the motion -- or, actually, StreamCast made a motion that said, "Let's carve this piece out and talk just about whether the set of current activities supports secondary liability." The other side eventually agreed that that was distinct and severable from their claim of secondary liability as to past acts and as to past versions of the software, which has -- which has changed.
04-480 +++$+++ 24378 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where does one find that?
04-480 +++$+++ 24379 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ (Inaudible)
04-480 +++$+++ 24380 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, the motion -- well, it -- the simplest place, I guess, is in the June 2003 District Court ruling, which is in the Joint Appendix and attached to the brief in opposition, ruled on the Petitioner's motion for an interlocutory appeal under 1292.
04-480 +++$+++ 24381 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the motion itself is not there to take it through the opinion of the Court?
04-480 +++$+++ 24382 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, the motion is not -- is not in the joint appendix. The -- most of the motions -- in fact, both of our summary-judgment motions and their summary-judgment motion, are in the joint excerpts of record in the Ninth Circuit, can be found in --
04-480 +++$+++ 24383 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The text on --
04-480 +++$+++ 24384 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- 30 volumes.
04-480 +++$+++ 24385 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the text, on pages 23a and 24a, gives the impression that the District Court is disposing of the entire case.
04-480 +++$+++ 24386 +++$+++ TRUE +++$+++ MR. TARANTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- it may give that impression on those pages. Later, the Court explains that it's ruling only on the current versions of the software. And then in the June 2003 order, the Court was explicit in saying, "If I haven't been clear enough, let me amend my June -- my April order," which is what you were just reading from, "to make explicit the limitation." And we quote that in our brief. The great virtue of peer-to-peer decentralized software is that it doesn't require anybody to put stuff onto a server and then bear the cost of bandwidth, of being charged by the Internet service provider when a million people suddenly want it. It automatically scales. It -- the more people who want it, the more people will have it, because it will be out there on a million computers. That is an inherent distributional economy, together with the autonomy of the user, rather than having a kind of Mother-may-I system, with having to check every communication through some third party to say, "Am I authorized to make this communication," that are the virtues of this system and that make it clearly capable of growing the already large hundreds of thousands, even millions, of uses that this -- that these pieces of software already enable people to do. One final -- final word. We're not disputing that there are, in an industry-wide way, a set of important policy issues here, though there's nothing in the record about what self-help measures -- digital-rights management, encryption, other things -- there's nothing in the record what -- about that. There's nothing in the record about what kinds of real industry harm is being done by this. Right? This is all citations to Websites in their brief. These are classic questions of predictive judgment, industry-wide judgments that Congress should make to decide whether there is a problem in need of solution, and what solutions ought to be considered, whether changing the rule would have a overriding bad effect on other industries. And --
04-480 +++$+++ 24387 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Taranto. Mr. Verrilli, you have four minutes remaining.
04-480 +++$+++ 24389 +++$+++ FALSE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. I'd like to start by clarifying the inducement issue, and then explain why inducement is not enough, and then have a word, if I might, about the reality of this case. The reason, Justice Souter, you find it bizarre is because a shell game is going on here. What the Respondent's position -- excuse me -- the Respondent's position here is that we can sue for specific infringements that we can show were induced by these specific acts, such as e-mail support. Our position on inducement is that we are entitled to injunctive relief against the continued operation of this gigantic infringement machine, which was built by the inducement. Now, I think that the Respondents have quite clearly said that they're -- they don't think any injunctive relief is available, going forward. But we're entitled, under Section 502 of the Copyright Act, to effective relief, not merely a -- relief, judgment relief, that says, "Go and sin no more," but relief that undoes the consequences of this inducement, of this massive effort to build a gigantic engine of infringement. And that is why they're just wrong about that. And you certainly can't affirm the Ninth Circuit and allow us to go forward with anything like that theory, because the Ninth Circuit said the only thing we can sue for -- the only thing we can sue for -- is a situation in which we can show that we had knowledge of specific acts of infringement at a time when we could stop those specific acts of infringement. So there's just no way to affirm and let that go forward. Now, why is infringement -- why is inducement not enough? It's not enough because, as Justice Scalia suggested, these companies already operate in the shadows, and a ruling here, which would be, I submit, a significant cutback of the Sony rule, that inducement is the only available ground of liability, would just leave them to paper over -- you know, we do have some paper evidence here, a paper trail here, but that'll just -- they just won't exist next time. And it's just -- it's just not enough. And I submit that Sony was quite clear on this. Sony said that the staple article-of-commerce doctrine, not copyright law, generally, and not secondary liability, generally, but the staple article-of-commerce doctrine, the noninducement part of the analysis, has got to strike an effective balance -- a real balance that provides effective protection of copyright, as well as protecting unrelated lines of commerce. Now, their rule is a rule of immunity. It's a free pass. It says, all you've got to do is speculate about noninfringing use, and you can continue with infringement, ad infinitum. And that's not a rule that protects innovation; that's a rule that destroys innovation. It certainly destroys the innovation that the creators of the copyright law is supposed to protect, and that's supposed to be the effective protection part of the balance that Sony said this law is supposed to strike. It also -- it also deters legitimate technological innovation moving towards legitimate means of distributing this -- of distributing, in a digital format, music and movies through the kinds of companies that filed amicus briefs and that are trying to do this legitimately. They are inevitably and invariably undercut by the kinds of businesses that Respondents and the others run, so it deters innovation; it doesn't move it forward. And, beyond that, Justice Kennedy, as you suggested, it isn't just that they get to use our copyrighted -- the value of our copyrighted materials as the seed capital, that's the whole business. That is the whole business. And that's the reality here, and that's the problem. They can talk about the hundreds of thousands, or maybe even millions, of uses, but the reality is that there are 2.6 billion downloads, unlawfully, every month. So what they're talking about as lawful is a tiny, teeny little fraction of what's really going on here. And the problem with the rule which they say is a clear rule, but it obviously isn't in Sony, because Sony said, "strike a balance." And the problem with that rule, Your Honor, is that it gives them a perpetual license to keep going forward with billions and billions of unlawful downloads a month. They never have to do anything to try to bring their conduct into conformity with law. They're not in the position of that inventor that you identified, Justice Scalia, who has to, sort of, think through, "What am I doing?" They're just in a position where they have every economic incentive in the world to maximize the number of infringing uses, because they make more money when they do so. Now, and with respect to the reality of this situation, let me just say -- and I must beg to differ, Justice Breyer, with the suggestion that this industry is thriving. What the -- the facts are that we have lost -- the recording industry has lost 25 percent of its revenue since the onslaught of these services. And that's particularly critical, because, remember, this is really -- the recording business, in particular, is really a venture-capital business. Most of the records we put out don't make money. A few make a lot of money. Well, what do you think's getting traded on Grokster and StreamCast and the rest of them? It's the few that make all the money. So they're draining all of the money out of the system that we use to find new artists and --
04-480 +++$+++ 24390 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you --
04-480 +++$+++ 24391 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- foster development.
04-480 +++$+++ 24392 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- Mr. Verrilli. Thank you.
04-480 +++$+++ 24393 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The case is submitted.
04-495 +++$+++ 24397 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument now in No. 04-495, Reginald Wilkinson v. Charles E. Austin. General Petro.
04-495 +++$+++ 24399 +++$+++ FALSE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The purpose of any hearing process is to get a better answer. If the question is what happened in the past, an adversarial fact-finding can help provide the answers. If, however, the question seeks to look forward and predict future behavior, then a slightly more limited procedure will serve to expedite and arrive at the best possible answer to this predictive question.
04-495 +++$+++ 24400 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ General Petro, before you get into the details of why -- why you think the process here was all that was due, I'm -- I'm more concerned about the preliminary question of whether there was a liberty interest here. I -- I know you haven't challenged the existence of it, but I'm not sure that lets me off the hook. We -- we had a case some years ago in which both sides apparently wanted the statute in existence and they conceded in the -- in the court of appeals that the statute existed and wanted us to say what this presumptively existing statute said. And we held, since there was serious doubt about whether the statute had been properly enacted, we had to reach that question first because we were not going to speculate on what a, you know, hypothetical statute said. And I think you're asking us to do sort of the same thing here. You're -- if -- you know, without even conceding or -- the Government doesn't concede anyway. The United States doesn't.
04-495 +++$+++ 24401 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No they don't.
04-495 +++$+++ 24402 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're asking us to hold that if this is covered by the Due Process Clause, what you've given here is enough. But I don't -- I don't like to speculate on -- on hypothetical questions like that. And it -- it really seems to me that to say that there's a liberty interest here flies in the face of our more reasoned opinions in this area, especially Sandin which -- which has some language that's -- that's almost -- almost right on point. We note also that this -- where is it? Conner's confinement did not exceed similar but totally discretionary confinement in either duration or degree of restriction. I -- I don't understand how this person has a liberty interest in not -- in not being put in a maximum security facility. Presumably you could put all your prisoners in maximum security. I mean, you don't pull their fingernails or anything, do you?
04-495 +++$+++ 24403 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No -- no, we don't, Your Honor.
04-495 +++$+++ 24404 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So there's -- there's no Eighth Amendment problem.
04-495 +++$+++ 24405 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
04-495 +++$+++ 24406 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So if you wanted to, you could put all of your prisoners in maximum security. Right?
04-495 +++$+++ 24407 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I agree, Your Honor, that we could.
04-495 +++$+++ 24408 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So where is the liberty interest here? I don't understand.
04-495 +++$+++ 24409 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We -- we made a decision in petitioning the Court that the liberty interest issue was something that we would not raise. We raised it on appeal through the district court and through the circuit court. We chose not to raise it here to focus on the due process issue.
04-495 +++$+++ 24410 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I understand, but I feel like something of a fool being asked, you know, Justice Scalia, if -- if there were a liberty interest here, would these procedures be enough to secure it. That's not the kind of work I usually do. I -- you know, I usually ask -- answer real questions.
04-495 +++$+++ 24411 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the circuit court made a factual determination that there was a significant and atypical deprivation. We would respectfully disagree with that determination, but because it was a factual determination, we chose to confine our appeal to the issue of law.
04-495 +++$+++ 24412 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but there is a -- there is a question of law involved as to whether there's a liberty interest.
04-495 +++$+++ 24413 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-495 +++$+++ 24414 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In the Sandin case in 1995, this Court said that prisoners have a State-created liberty interest only where the deprivation or restraint imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Now, I guess to be categorized in category 5 in your State, it does involve putting someone in solitary confinement, reducing their time for exercise, and reducing their options for parole. Is that correct?
04-495 +++$+++ 24415 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. But when people are moved to level 5, Your Honor, typically they're being moved from level 4, at least more than 90 percent of the time, and level 4 has a similar area of restriction. In reality, I would argue -- and I would concur with Justice Scalia -- that this is not a significant or atypical deprivation --
04-495 +++$+++ 24416 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, do you take the -- why don't you simplify it by telling us whether you take the position today that there is or is not a liberty interest here?
04-495 +++$+++ 24417 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we chose not to --
04-495 +++$+++ 24418 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know you did.
04-495 +++$+++ 24419 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- petition on that.
04-495 +++$+++ 24420 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm asking you your opinion.
04-495 +++$+++ 24421 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I would be most pleased to argue that there is no liberty interest in this instance under Sandin. The Court made it very clear that where there is a mandatory State-created interest, that interest would have to involve a significant and atypical deprivation. In this instance, we do not believe that moving an inmate to level 5 classification is a significant or atypical deprivation.
04-495 +++$+++ 24422 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What if he were moved from level 1 to level 5?
04-495 +++$+++ 24423 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, that has not occurred in reality. There have been several inmates that have moved from admission to level 5.
04-495 +++$+++ 24424 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But why isn't the comparison the entire prison population rather than just 5 versus 4?
04-495 +++$+++ 24425 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it's just typically what occurs, and so there are some circumstances where a level 3 inmate may be moved to 5, but in any event, that inmate would have been moved to 4. The classification jump is, in a practical standpoint --
04-495 +++$+++ 24426 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, is it -- is it your view that we should consider it the normal practice in the Ohio system to keep people in solitary for 23 hours a day?
04-495 +++$+++ 24427 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, that's not the normal practice. In fact, it involves --
04-495 +++$+++ 24428 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, then isn't that the standard of reference that we should use?
04-495 +++$+++ 24429 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it involves a small number of inmates, and those inmates have been determined through a very predictive determination that -- that in fact they do pose a threat --
04-495 +++$+++ 24430 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So we're -- we're dealing with a small number of inmates out of a very large population, but isn't the frame of reference for telling whether it's a liberty interest a comparison to the large population?
04-495 +++$+++ 24431 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the -- the deprivation is -- is perhaps marginally greater, but I would suggest that it is marginal, and therefore --
04-495 +++$+++ 24432 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you say it's marginally greater than 4. It's not marginally greater than 1 or 2 certainly.
04-495 +++$+++ 24433 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I would submit that it is -- it is more -- it is much greater than 4. But whether it represents something that is unexpected by the inmate, in reality the inmate has an expectation of having his liberty essentially extremely limited in this instance --
04-495 +++$+++ 24434 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but the -- the point of the case is that the inmate does not expect to be put in solitary confinement for 23 or 23 and a half hours a day for a period of 1, 2, or more years without some process to do it because that is so extraordinarily onerous and so different from the general run of incarceration practice.
04-495 +++$+++ 24435 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and, Your Honor, we initiated a process. It is our New Policy 111-07, which the district court and then the circuit court ultimately ruled on, where we made --
04-495 +++$+++ 24436 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That -- but that's what -- that's what you wanted to talk about, but we're on, first, the preliminary question.
04-495 +++$+++ 24437 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-495 +++$+++ 24438 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And is -- I think you started to say that you regarded atypical and significant as a fact-finding which was made against you --
04-495 +++$+++ 24439 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-495 +++$+++ 24440 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- based on the extreme conditions of this kind of confinement where you don't see another human.
04-495 +++$+++ 24441 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yet, Your Honor, we would -- I would continue to -- to argue that it is not -- if it is significant and atypical, it is marginally significant and atypical.
04-495 +++$+++ 24442 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wasn't solitary confinement involved in Sandin?
04-495 +++$+++ 24443 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it was.
04-495 +++$+++ 24444 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Didn't we say in Sandin that solitary confinement was -- was not enough to -- to create --
04-495 +++$+++ 24445 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ For how long?
04-495 +++$+++ 24446 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ 30 -- for 30 days I believe, wasn't it?
04-495 +++$+++ 24447 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it was, Your Honor.
04-495 +++$+++ 24448 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Not 1 year, 2 years, 3 years.
04-495 +++$+++ 24449 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. And in this case the -- but -- but level 5 as a classification is a limited confinement. It is reserved for those very dangerous inmates not dissimilar to Sandin.
04-495 +++$+++ 24450 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- but typically it has been represented maybe -- maybe wrongly -- typically it has been represented that they tend to be in there for a year or 2-year periods.
04-495 +++$+++ 24451 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, they are reviewed from a classification standpoint on an annual basis. They are reviewed from a privilege standpoint -- and there's different levels within 5 -- on a quarterly basis and so --
04-495 +++$+++ 24452 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But in -- but in fact, they tend to be in there for the extended periods of time. Isn't that --
04-495 +++$+++ 24453 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that's correct, Your Honor.
04-495 +++$+++ 24454 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. -- General Petro, I for one would like to hear what you have to say about the question presented in your petition for certiorari.
04-495 +++$+++ 24455 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. (Laughter.)
04-495 +++$+++ 24456 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this instance, the process due, as provided by Ohio, was outlined in New Policy 111-07. That policy was adopted and ultimately then reviewed by the district court. The district court held it to be unconstitutional and added a number of other procedures. The process that was contained in New Policy 111-07 was a predictive policy, and it understood --
04-495 +++$+++ 24457 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May -- may I just ask you a question about that? I realize that there is a predictive element. I don't think anyone disputes that. One of the points of contention here, as I understand it, is that even the new policy did not give a -- an -- an inmate a statement of the charge or reason for the -- for the reclassification to 5. Is -- is that correct?
04-495 +++$+++ 24458 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it gave notice, 48 hours in advance, under the new policy --
04-495 +++$+++ 24459 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Notice of what?
04-495 +++$+++ 24460 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Notice of the fact that there would be a reclassification.
04-495 +++$+++ 24461 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But did it give notice of the reason for the reclassification? You did such and such. You are such and such kind of person, a gang member. Does it tell him anything?
04-495 +++$+++ 24462 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It doesn't spell out -- in New Policy 111-07, it doesn't spell out all the evidence, but it gives a basic --
04-495 +++$+++ 24463 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, not the evidence, just the reason.
04-495 +++$+++ 24464 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It gives a basic statement that you're being considered for reclassification.
04-495 +++$+++ 24465 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I know that, but does it say you're being reconsidered for -- considered for reclassification because you hit somebody over the head or because you've shown that you're a member of a gang or some other reason?
04-495 +++$+++ 24466 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it as a general rule does not have to do that, Your Honor.
04-495 +++$+++ 24467 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about -- I mean, the person, if he reads the regulation, would see that it says that to classify him, the State has to show that through repetitive and seriously disruptive behavior, he has demonstrated a chronic inability to adjust as evidenced by repeated class 2 rule violations.
04-495 +++$+++ 24468 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-495 +++$+++ 24469 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So I guess he would like to know give me at least a vague idea of what behavior you're talking about and which class 2 rule violations you're talking about. Now, does the notice tell him those two things?
04-495 +++$+++ 24470 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The notice is very general in its nature. At the time that the hearing actually commences, there's an opportunity to sit down and actually discuss with the inmate, and the inmate can respond in writing or in presence at the -- at the hearing --
04-495 +++$+++ 24471 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you say he has the opportunity. Do you actually tell him you are about to be reclassified or our proposal is to reclassify you because you violated this particular regulation by this particular conduct?
04-495 +++$+++ 24472 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is -- what initiates the reclassification is a report form that would identify to the inmate --
04-495 +++$+++ 24473 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm asking you what you tell the inmate, not what initiates your process. Now, please answer my question.
04-495 +++$+++ 24474 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The inmate, Your Honor, has access to the report form that says specifically what's initiated.
04-495 +++$+++ 24475 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ At which point does he get -- at which point does he get access?
04-495 +++$+++ 24476 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At the point of notice.
04-495 +++$+++ 24477 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so this -- I mean, that's what I don't understand what this case is about because I -- I'm amazed that -- I think it is too detailed what they're requiring of you, by far. But the elements are I have to know. I'm an inmate. I want to know what is this about. Suppose I think they're wrong. I need to know how to tell them they're wrong. And the other thing I think I'd need to know is after the committee or the warden decides against me, what are his reasons. I'm not asking for a book. All I want to know are the basic reasons. Now, those things I can't work out from the briefs, quite honestly, whether the new policy gives him those new things, those two things, or doesn't.
04-495 +++$+++ 24478 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The new policy gives him the basic information that we are asserting that --
04-495 +++$+++ 24479 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, already you say that, but I would think the basic information includes some idea of what my disruptive behavior was and some idea of what the class 2 violations that I was convicted of were. And now, I've heard you both say that he does get it and that he doesn't get it. I'm sure that's my fault, but I want to know, does he get this information before the hearing, or does he not?
04-495 +++$+++ 24480 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, he gets the basic reason for the classification and that's --
04-495 +++$+++ 24481 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now -- you heard what I said.
04-495 +++$+++ 24482 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I did, Your Honor.
04-495 +++$+++ 24483 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does he get what I just said?
04-495 +++$+++ 24484 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, he does.
04-495 +++$+++ 24485 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He does.
04-495 +++$+++ 24486 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He gets the basic information. He doesn't get a list of any evidence.
04-495 +++$+++ 24487 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what does he -- can you -- can you describe it for us what -- he gets 48 hours notice.
04-495 +++$+++ 24488 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-495 +++$+++ 24489 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Notice that's there's going to be a hearing. What else does he get? Does he get a summary of the written report? Does he get a -- a statement of -- of the reasons? What --
04-495 +++$+++ 24490 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At the close of the hearing, he -- there is --
04-495 +++$+++ 24491 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. Before the hearing starts, he gets 48 hours notice, but is he -- is he just told there's going to be a hearing in 48 hours and that's it?
04-495 +++$+++ 24492 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's going to be a hearing and it's for reclassification, and here is -- here is the -- the actual report that actually identifies what has triggered this activity for reclassification.
04-495 +++$+++ 24493 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So he does get the report.
04-495 +++$+++ 24494 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So he gets --
04-495 +++$+++ 24495 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ 48 hours --
04-495 +++$+++ 24496 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it's a very bare bones report and it doesn't identify the specific evidence involved which --
04-495 +++$+++ 24497 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, I don't care that he doesn't have evidence.
04-495 +++$+++ 24498 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
04-495 +++$+++ 24499 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I want to know that he thinks he's being sent to this prison because his roommate, Rat Fink, has made up a bunch of stories about him. All right? So he needs to know whether -- what it is that -- that this board is considering before he can come in and explain what it isn't true. He doesn't have to have all the evidence. He has to know what the point is, what the charge is, what the claim is. And you're saying he gets it because he has the report. Is there an example in the record of a report?
04-495 +++$+++ 24500 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's an example of the report form that is filled out by the prison officials at the time that a reclassification is going to occur, and the inmate does have access to that report form at the time of notice.
04-495 +++$+++ 24501 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask this --
04-495 +++$+++ 24502 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Perhaps we can be concrete. If he -- suppose the charge is he is a gang leader. Will he get notice that says you are being considered for reclassification because you are a gang leader?
04-495 +++$+++ 24503 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, he does get that notice. He gets that basic form that basically says he's being reclassified.
04-495 +++$+++ 24504 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Not that he's been reclassified, but is the reason -- the reason that you are being reclassified is that you are a gang leader. Those -- those words, you are a gang leader. Will he get those?
04-495 +++$+++ 24505 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He gets the -- the accusation. He knows the accusation is made from the report form that is prepared by the prison officials. So he knows --
04-495 +++$+++ 24506 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I --
04-495 +++$+++ 24507 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that one of those criteria has been asserted --
04-495 +++$+++ 24508 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask you this question?
04-495 +++$+++ 24509 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-495 +++$+++ 24510 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm just -- is the procedure you're describing the procedure that was reviewed by the district court?
04-495 +++$+++ 24511 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The procedure. Yes, it is. New Policy 111-07 is what the district court reviewed and then what was further reviewed by the circuit court.
04-495 +++$+++ 24512 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So the evidence in the record before the district court describes exactly what you're describing.
04-495 +++$+++ 24513 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The evidence that's in the record was the procedure in place prior to the enactment of New Policy 111-07, and the court choose -- chose to review for procedural purposes Policy 111-07 and then make its decision based on New Policy 111-07. So the evidence that's in the record, the testimony at the -- during the trial, really is not relevant to this policy. It's relevant to the former policy. If -- if --
04-495 +++$+++ 24514 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ General Petro, I -- I don't -- I'm going to ask you a very tendentious question, but it's something I don't want to make a mistake on. Going back to your answer to Justice Ginsburg's question, when he is given what you described as the bare bones report at the beginning of the proceedings, when he gets the 48-hour notice, will in her example the bare bones report say you are being reconsidered for reclassification because you are believed to be a gang leader? Does he get the gang leader information?
04-495 +++$+++ 24515 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, he does generally. It doesn't give any evidence. It simply is --
04-495 +++$+++ 24516 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. I'm not --
04-495 +++$+++ 24517 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
04-495 +++$+++ 24518 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm not worried about evidence.
04-495 +++$+++ 24519 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I understand.
04-495 +++$+++ 24520 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Just I want to know the charge. Will he always get the charge?
04-495 +++$+++ 24521 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He will get the -- there is a form that is completed, a long form that is completed by the prison officials that basically stipulates the predicate act or the predicate acts that really result in the reclassification action.
04-495 +++$+++ 24522 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that in the gang leader example, he will be told that it's because he is accused of being a gang leader that this is occurring.
04-495 +++$+++ 24523 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, because that is part of the form. With the Court's permission --
04-495 +++$+++ 24524 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the form -- and the form is in the record, I take it.
04-495 +++$+++ 24525 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it is. With the --
04-495 +++$+++ 24526 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where?
04-495 +++$+++ 24527 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With the Court's permission, I'd like to reserve the balance of my time.
04-495 +++$+++ 24528 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General Petro. Ms. Maynard, we'll hear from you.
04-495 +++$+++ 24529 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Maynard, before you start, maybe you could answer the question I tried to ask at the end of his argument. Where in the record is the report?
04-495 +++$+++ 24531 +++$+++ FALSE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ JA-58 is the form, and if you look at that, you'll see that it has a line that says, you are being considered for a transfer for the following reasons, colon, and there's a blank to be filled in. MR. CHIEF JUSTICE, AND MAY IT PLEASE THE COURT: The procedures that Ohio provides for placement into its supermax prison facility are more than ample to satisfy due process. As the Federal Government has argued in its brief, the Bureau of Prisons believes there is no liberty interest implicated here. But even if one assumes that there is, the type of decision at issue is inherently a predictive one that turns on the holistic judgment of prison officials.
04-495 +++$+++ 24532 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why is it a predictive judgment that a person is a gang leader? The ultimate decision, given the facts and circumstances, we predict that this person is among the worst of the worst, but the findings that have to be made along the way are not necessarily predictive. I mean, it -- it would be nice if the -- if the issues came simply divided what happened in the past, what might happen in the future, but the judgment that's made to classify someone as 5 inevitably involves some, well, what happened in the past on the basis of which we can project what might happen in the future.
04-495 +++$+++ 24533 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, Justice Ginsburg. We would have three responses to that. One is first in Ohio, as in the Federal Bureau of Prisons, in the large majority of instances, most of the facts upon which a predictive assessment would turn have already been subject to some more formal type -- trial-type procedure. For example, in the Bureau of Prisons, the vast majority of prisoners who are placed in one of our two more restrictive facilities have committed some violent act in prison for which they have been found to be guilty pursuant to formal Wolff-type, trial-type procedures. Secondly, with respect to facts that might be taken into consideration for which there hasn't yet been such a formal trial-type proceeding, this Court has made clear that when you're talking about the types of predictive risk assessments that are at issue here, it is appropriate for prison officials, using their expertise and judgment and knowledge of the prison conditions in their prison and in the prison system as a whole, to take into account things that are rumor, innuendo, and other imponderables that may not have been proven in any fact-type proceeding.
04-495 +++$+++ 24534 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that would be -- that would be a what happened question, not what might happen. What happened, the determination might be made on the basis of rumor or innuendo. My only point is that questions don't come labeled so simply, predictive versus what happened in the past.
04-495 +++$+++ 24535 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true. I agree with that. But again, I believe that most of the -- the facts upon which these decisions are based and -- and Ohio asserts in its brief that that's the case in their case too, that people who are placed in level 5 have either been subject of a rule board's infraction hearing or have committed a crime for which they've been convicted while in prison.
04-495 +++$+++ 24536 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And suppose neither of those are -- are so.
04-495 +++$+++ 24537 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- as I say, I think in the vast majority of cases, in both the Federal system and Ohio, that is the case. But even so, the consideration at issue takes into a broader spectrum of consideration than just the individual inmate. Having the type of formal fact-finding retrospective proceeding that the court below required here is going to focus the decision-maker in the wrong direction and on a more narrow set of facts than ideally we want the prison administrators to focus upon. We want them to be looking at, just like in Hewitt, the relationship of this inmate to other inmates, of inmates within the prison generally, of inmates to this inmate, and the safety of others. So there's more of them at stake. There are other private interests at stake besides those of the individual who may be moved in the prison administration's --
04-495 +++$+++ 24538 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, those two, it seems to me, are all questions of -- of fact. I mean, ultimately your position may be correct, but I -- I just can't place a lot of store in this predictive versus nonpredictive judgment, and it's contrary to your own argument. You say, well, in almost all the cases, it's because he's been convicted of a crime in prison and so forth. Well, that -- that undercuts, it seems to me, the -- the basic argument that you're trying to make that established this line between predictive and nonpredictive judgment. I -- I suppose you would say even in cases where it is a matter of past effect, these procedures are -- are adequate. Or would you?
04-495 +++$+++ 24539 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. We believe that the procedures that Ohio provides are -- are more than adequate because it gives the prisoner notice of the charges and an opportunity to contest the placement decision. In fact, we believe that the -- the process that Ohio provides is more than is necessary to satisfy due process.
04-495 +++$+++ 24540 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Maynard, this is a class action, isn't it?
04-495 +++$+++ 24541 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it is, Justice Scalia.
04-495 +++$+++ 24542 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What if -- what if for some of the prisoners, maybe a majority of the prisoners, this -- this reality of having a prior factual hearing exists, but for some of it, it doesn't? What -- what disposition would this Court then make of the case?
04-495 +++$+++ 24543 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's -- still, the appropriate analysis, when you're talking about -- basically what we have at bottom --
04-495 +++$+++ 24544 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I mean, suppose I think that a -- a trial-type proceeding is necessary, and in fact, it's been given for most of the people in this class action, but not for the rest. What happens to the case?
04-495 +++$+++ 24545 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It seems to me that you hold that -- that the procedures here are adequate because -- under the Due Process Clause because in the broad range of cases, you're going to have sufficient notice and an opportunity to contest. Again, I think it's really important to understand the nature of the decision issued here. It's really a gestalt judgment of prison officials exercising their expertise in an area that this Court has repeatedly said prison officials get a wide range of deference. Again, I would like to make a point about the Federal Bureau of Prisons because the respondents have pointed to our control unit procedures which are more trial-like. And I just want to let the Court know that those procedures were imposed upon the Federal Government and the Bureau of Prisons pursuant to a court order in 1978 before this Court issued its decision in cases such as Hewitt where the Court made clear this distinction about prison placement and issues involving the judgment and predictive decisions of prison administrators. When the Bureau of Prisons has been --
04-495 +++$+++ 24546 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did you ask for -- did the Government move for modification of a decree? I -- I assume that it was not a decision of this Court. You said this -- what you do in the supermax at the Federal level has been imposed by a court. Which court?
04-495 +++$+++ 24547 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Let me clarify one thing. What -- it would be -- this relates only to the control unit, which is now at -- at -- in -- in part of the ADX Florence facility. It does not apply to the general populations of the ADX Florence facility and the Marion facility.
04-495 +++$+++ 24548 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you talked about something being imposed.
04-495 +++$+++ 24549 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-495 +++$+++ 24550 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And so I want to know what was imposed, first, by whom, by which court, and what -- what the order was.
04-495 +++$+++ 24551 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The injunction was entered by the Eastern District of Illinois and was affirmed by the Seventh Circuit in a case called Bono v. Saxby. And the Federal court -- the -- the Bureau of Prisons adopted the regulations pointed to by the respondents in the C.F.R. as it -- in -- in -- to comply with that injunction. We have not yet sought to have that injunction set aside, but those procedures apply to a very small number of Federal prisoners.
04-495 +++$+++ 24552 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But even so, I mean, you were saying this was forced on -- on the -- effectively on the Government. Well, it seems to me if that were the case, you would, after this Court rendered the decisions it did in Hewitt and Sandin, say, Seventh Circuit, please reconsider. It sounds to me as though you haven't done that so you probably think it's okay.
04-495 +++$+++ 24553 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't think it's constitutionally required, Justice Ginsburg. It hasn't -- we haven't moved to set it aside because it hasn't caused an administrative burden. There are currently only 49 inmates in the control unit at Florence. In the last decade, we have only placed 118 inmates there, and so we were able to cope with these burdensome procedures with respect to those numbers. But it's important to note that what we do when we -- what the Bureau of Prisons does when it was free to decide its own process is detailed at pages 26 to 28 of our brief, and that applies to a large number of prisoners, 550 who are in the general populations of -- in very similar conditions to those in the Ohio State penitentiary. And there we have adopted a much less formal process even than the one that Ohio does, and we believe that is also constitutionally sufficient.
04-495 +++$+++ 24554 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, is -- is the population with respect to which you have adopted the far more lenient process a -- the population of the control unit, which I understand is comparable to the unit we're talking about in Ohio, or is it with respect to the general maximum security population which is housed in conditions less onerous than the control unit?
04-495 +++$+++ 24555 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is -- applies to the general conditions in ADX -- the general populations in ADX Florence and USP Marion.
04-495 +++$+++ 24556 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, and --
04-495 +++$+++ 24557 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But those conditions, Your Honor, are similar to the Ohio State penitentiary. The difference between -- may I finish, Justice -- Mr. Chief Justice?
04-495 +++$+++ 24558 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-495 +++$+++ 24559 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the difference in the general population, the prisoners are out 10 to 12 hours a week for recreation, and in the control unit, they are out 7 hours a week.
04-495 +++$+++ 24560 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Ms. Maynard. Mr. Lobel, we'll hear from you. Would you tell us what happened in Mr. Austin's case? I mean, did he get a notice and that sort of thing?
04-495 +++$+++ 24562 +++$+++ FALSE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Yes, Your Honor. May -- Mr. Chief Justice, and may it please the Court: In many of the cases -- and I -- I will try to -- in Mr. Austin's case and many of the other cases, people didn't get a notice. I'd like to try to explain what they get and what they don't get. First, they do not get a final decision which gives them reasons.
04-495 +++$+++ 24563 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, could you answer my question first? What kind of notice, if any, did Mr. Austin get?
04-495 +++$+++ 24564 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think Mr. Austin got no notice.
04-495 +++$+++ 24565 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Perhaps you can take us through this chronologically. You -- you began at the end.
04-495 +++$+++ 24566 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. The notice they get at the beginning is an -- a notice which sometimes includes the reasons, sometimes it doesn't include the reasons. What the requirement in this policy is and what was found at trial was that often they would get very vague reasons like you're a gang member or a gang leader. Now --
04-495 +++$+++ 24567 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then can you just explain that? Because the policy says that he shall get notice and attached to the notice will be a committee report. Then they have a copy of the form that the report is supposed to fill out on page 58 to about page 78 and it's about the most detailed thing I've ever seen. So --
04-495 +++$+++ 24568 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, that they don't get. That they do not get.
04-495 +++$+++ 24569 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even though -- you mean even though it says that the policy says you should be noticed and you're -- it says, attached to the notice will be a copy of the -- I'm sorry. I'm looking -- am I looking at the wrong place?
04-495 +++$+++ 24570 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think you're reading in the wrong place. But it -- there -- they do attach something, but it's not that long form. That long form is what was never given to the prisoners which would tell them what it is that they were said to have done. For example, if --
04-495 +++$+++ 24571 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I -- may I -- I just want to make sure. There is then a direct disagreement of fact between you and the Attorney General. I understood him to say they got the form that starts at JA-58, and I understand you to be saying they don't.
04-495 +++$+++ 24572 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They do not. The form that starts at JA-58 they get, but the form that starts at JA-58 is only one page. It's JA-58. They get that form. That form says you'll tell them the reasons.
04-495 +++$+++ 24573 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-495 +++$+++ 24574 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So at this -- at -- at -- during the trial, often they didn't get the -- they didn't get any notice.
04-495 +++$+++ 24575 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-495 +++$+++ 24576 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But now they should get a notice. It should tell them some reason. The problem at trial was that --
04-495 +++$+++ 24577 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You mean a trial before all the -- before they were about to be committed or the hearing at which it was determined whether they would be or not?
04-495 +++$+++ 24578 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At the hearing and -- they got a notice. The notice said you're a gang leader. How is a man supposed to respond to a vague notice that I'm a gang leader when he doesn't know what it is that they are saying is their -- is the reason that he's a gang leader? All he could say -- this isn't like a trial. It's not a trial-type procedure. What happens in reality --
04-495 +++$+++ 24579 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, do you think it should be?
04-495 +++$+++ 24580 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
04-495 +++$+++ 24581 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, this is a prison classification, for goodness sakes.
04-495 +++$+++ 24582 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. We're not --
04-495 +++$+++ 24583 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He's been found guilty and sentenced to prison.
04-495 +++$+++ 24584 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, and we're not --
04-495 +++$+++ 24585 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The question is what procedures are required. And we've given a lot of discretion in prison administration.
04-495 +++$+++ 24586 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and we are not asking for trial-type procedures. All we're asking for is very minimal due process, which is that the person comes before a committee of three correction officials, and they say, what do you have to say for yourself? They don't present any evidence. They don't present witnesses. They say, you're a gang leader. What do you have to say for yourself?
04-495 +++$+++ 24587 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Here is the exact words I -- I think. It's -- tell me. This certainly seems to be right. The inmate shall be served with notice at least 48 hours prior to the commencement of a hearing. The notice shall include all of the reasons for the proposed placement --
04-495 +++$+++ 24588 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
04-495 +++$+++ 24589 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and a summary of the evidence relied on. Now, I'm just reading that. What is it I'm reading?
04-495 +++$+++ 24590 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- that's the district court's order. That's not what they -- that's the revised policy under the district court's order.
04-495 +++$+++ 24591 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Where is -- where is --
04-495 +++$+++ 24592 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Where is theirs?
04-495 +++$+++ 24593 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm sorry. You go ahead.
04-495 +++$+++ 24594 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Their policy is, I believe, on page JA-23. That tells you what they -- they say. He is to be served with a notice of hearing form 48 hours prior to the hearing. That will -- that -- there were problems with this. One is very vague notice. You're a gang leader. They have evidence for why he's a gang leader. In Mr. Roe's case, who's one of the plaintiffs, the evidence which -- which was never told to the prisoner -- the committee didn't even know the evidence. The evidence was that he was hit over the head with a spatula while he was waiting on line at the maximum security lunch line, and he went to the hospital, and he never fought back. And from this, somebody determined that he was a gang leader because the people who were being targeted at that time were gang leaders. Now, if you take a man and say, come before a committee, we're not going to tell you what this is about, just that you're a gang leader, what do you have say for yourself --
04-495 +++$+++ 24595 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what's -- what's wrong with that?
04-495 +++$+++ 24596 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because --
04-495 +++$+++ 24597 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, if he can -- if he's not a gang leader, he can tell them why he isn't.
04-495 +++$+++ 24598 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He'll say I'm not a gang leader. But if they know and the reason is because he was involved in this fight, which -- in which he didn't fight back, he should be able to then say, well, this guy -- you're wrong. This guy beat me up because I insulted him, or he's been an enemy of mine. He has something to respond. Otherwise, he can just say I'm not a gang leader.
04-495 +++$+++ 24599 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You -- you want a trial-type proceeding.
04-495 +++$+++ 24600 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This is a far cry from a trial. A trial -- the State would have to put on witnesses. They'd have to prove something. All you're doing here is saying to the man, we're going to give you an opportunity to respond. And the question is, do you have to give them notice detailed enough? And that's all the district court required was some summary so that it's detailed enough so that he can respond. And really, all they have to do is take that form that they print up, Justice Breyer, which you were looking at, that long form, and copy it and append it to the notice.
04-495 +++$+++ 24601 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, there is -- isn't there the problem -- at least Ohio suggested that there is -- that if this person is indeed a gang leader and the form says so-and-so and so-and-so effectively ratted on you, those persons who came forward might not live to see another day?
04-495 +++$+++ 24602 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And the district court ordered what Ohio does in all its disciplinary proceedings, what the Federal Government does in its disciplinary proceedings, which is if it's confidential information, you don't have to turn it over because they understand that, Justice Ginsburg. The district court understood that. But in Mr. Roe's case, it wasn't confidential that he was hit over the head. Or in Mr. Thompson's case, it wasn't confidential that they said to him, you were present at some fight and they didn't tell who he was fighting and they never were -- they never gave him any of the -- the details so -- to be able to respond. If it's confidential, they don't have to turn it over. The district court --
04-495 +++$+++ 24603 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But was -- was this under the old policy that you're talking about what occurred?
04-495 +++$+++ 24604 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. It was under --
04-495 +++$+++ 24605 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. And I thought that we had to address this facial challenge insofar as it affects the new policy. And if the State complied with the new policy, what is your complaint with that?
04-495 +++$+++ 24606 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the new policy, which really was in all honesty, Your Honor, a tweaked policy or a modified policy -- they took the old policy and they made some changes to it. The question before the Court is whether that new policy fixed the problems. We saw the problems --
04-495 +++$+++ 24607 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which was never -- never in effect, right? The new policy --
04-495 +++$+++ 24608 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Never went into effect.
04-495 +++$+++ 24609 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So all -- the evidence relates to the old policy which I think Ohio recognizes was not adequate. And then there's -- Ohio has this new policy, and you, just on the basis of the written statement of the policy, made the judgment that it's not good enough.
04-495 +++$+++ 24610 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It doesn't on -- just on the face of it, it doesn't fix the problem that the district court found. Vague notice. The other thing they would do is they would give the person notice of one reason --
04-495 +++$+++ 24611 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let -- you keep talking about what happened in the past, and I'm -- I find some difficulty with that because we're being asked to review a new policy. And I would like you to look at the new policy, show us where to find it in the record, and tell us specifically what's wrong with it.
04-495 +++$+++ 24612 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'll give you a very specific --
04-495 +++$+++ 24613 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could -- could you refer to something?
04-495 +++$+++ 24614 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Page -- look at page 22 and -- 23 and 33 of the new policy. Look at 23.
04-495 +++$+++ 24615 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where -- where is that?
04-495 +++$+++ 24616 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ JA-23. Look at JA-23 and look at JA-33.
04-495 +++$+++ 24617 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. I'm on 23. What are we --
04-495 +++$+++ 24618 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ On 23, you look at the final decision-maker -- the Bureau of Classification -- the bottom line of the next-to-the-last paragraph -- will review the recommendation and any objections filed and make a final decision. Now, here's what was happening, and I --
04-495 +++$+++ 24619 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is this happening under the new policy?
04-495 +++$+++ 24620 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's the new policy.
04-495 +++$+++ 24621 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But now, you just were going to say here's what was happening. Do you mean under the new policy?
04-495 +++$+++ 24622 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. The question is whether this page 23 fixes what was happening in the past. This is their new policy.
04-495 +++$+++ 24623 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why -- why is that the question? If the new policy meets constitutional standards, why does it have to fix something else?
04-495 +++$+++ 24624 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, it doesn't meet constitutional standards because it only says the chief has to make a final decision. The chief doesn't have to give any reasons for it, and I don't know of any case in this Court in predictive decisions, in punitive decisions where a -- a decision-maker can send somebody to solitary confinement long-term. And Justice Souter, it's for at least 2 years. Over 200 people there were for more than 3 years, which was really the -- the -- only limited by how long the building was open -- and say, I'm putting you in there and I'm not telling you why. And this policy lets them do it, and that's what they were doing. And there's nothing in this policy to change that. And what was happening --
04-495 +++$+++ 24625 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So I think I've got your point. Tell me if I -- I mean, I've now looked at -- this is very confusing to me. I'm sure it's my fault. But I take it, if you look at page 22, that's the new policy.
04-495 +++$+++ 24626 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly.
04-495 +++$+++ 24627 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what the new policy says is, committee, you must give the prisoner some information. Then it refers to form 2598. Form 2598 is the form on page 58.
04-495 +++$+++ 24628 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly.
04-495 +++$+++ 24629 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What that tells him is nothing about the facts. That tells him he's been charged. Period.
04-495 +++$+++ 24630 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He's been charged for being a gang leader.
04-495 +++$+++ 24631 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, the new policy goes on to say, the classification committee shall document information presented by staff and the inmate which is form 2627 and 2628. And I don't know where 2698 fits in, but 2698 are all those pages with the information.
04-495 +++$+++ 24632 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And they don't have to give that to anybody.
04-495 +++$+++ 24633 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it just doesn't say anything about them at all.
04-495 +++$+++ 24634 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And all the district court was saying --
04-495 +++$+++ 24635 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So your point is in the past, they didn't give them the information.
04-495 +++$+++ 24636 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They didn't give them the information.
04-495 +++$+++ 24637 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then they promulgated a new policy and the new policy says nothing about it.
04-495 +++$+++ 24638 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly. And that is why it's facially invalid. But if you look at what was happening, you could --
04-495 +++$+++ 24639 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But form 58 -- I'm -- I'm looking at page 58 -- says that the prisoner will be given this form that says you were referred to the classification committee for the following reasons. And that leaves space to be filled out. What's the matter with that?
04-495 +++$+++ 24640 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- two problems with that. It could either say you're a gang leader, and second, it could say which --
04-495 +++$+++ 24641 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is a facial attack. What in the world is the matter with that, saying you were referred for the following reasons and leaving space to have it filled out? Is that defective under the Due Process Clause?
04-495 +++$+++ 24642 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because you -- at trial we showed what the practice was.
04-495 +++$+++ 24643 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You showed what happened in the past.
04-495 +++$+++ 24644 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And the question is, does this fix it? And what happened in the past was they gave, for example, a prisoner, and it said, here are the reasons. The reason is you stabbed somebody. The committee said, you stabbed somebody. It wasn't very bad. We recommend that you not be put in the place. In over 50 percent of the cases of those committee recommendations on retention, the chief rendered a decision, without giving a final -- any real reasons, and used evidence and reasons which were never given to the inmate. In Ohio's brief, they say we could still do that. We only have to give them some reason. For example, we have to say you're a gang member. If it turns out that you're -- turns out you're not a gang member, the chief can say later on, well, you were dealing drugs. That's -- that's not adequate. Facially it's not adequate to give the person some reason and then switch the reason in the middle of the game. And that's what was happening.
04-495 +++$+++ 24645 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I can understand that you could come on behalf of a prisoner on an as-applied challenge, but to look at this form and tell us it is facially invalid is difficult for me to understand. If -- if there are specific incidents where something was defective, then challenge it, but what's the matter with the form?
04-495 +++$+++ 24646 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well -- well, the first thing that's matter with the form is it doesn't require reasons for the decision.
04-495 +++$+++ 24647 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's --
04-495 +++$+++ 24648 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why does the Due Process Clause require reasons?
04-495 +++$+++ 24649 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Even in Salerno, the -- the -- this Court held that in a preventive case, the bail -- the bail reform statute still requires, as a basic modicum of due process, that you give the person the reason --
04-495 +++$+++ 24650 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That -- that was a statute.
04-495 +++$+++ 24651 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was a statute, and the Court relied on that for why the statute was constitutional. Even in Greenholtz, the parole case, the -- this Court said over and over again that in the -- in the parole decision, which is much more predictive than here, the parole board gave its reasons for why it --
04-495 +++$+++ 24652 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This form says, state the reasons, and leaves blank space to do that.
04-495 +++$+++ 24653 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that's --
04-495 +++$+++ 24654 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So what's the matter?
04-495 +++$+++ 24655 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's in the notice. It's not in -- it's not in the decision.
04-495 +++$+++ 24656 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what it says about --
04-495 +++$+++ 24657 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It -- it seems to me that the -- the facial attack objection would -- would not be -- carry much weight if what happened was this. There was a trial. The policies were found deficient, and the court said, you devise some new forms. At that point, it seems to me that the facial attack would -- objection would -- would not be relevant. And -- and your point would be right. You say, you know, they -- they haven't -- this doesn't -- is not going to cure the -- the deficiency. But what happened here was that, as I understand it, midway in the litigation there was a new policy, and it -- it seems -- so we have sort of a moving target that we're working with.
04-495 +++$+++ 24658 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Your Honor, it depends --
04-495 +++$+++ 24659 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could you comment on that?
04-495 +++$+++ 24660 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It depends on what you mean by midway. On the eve of trial, as we approached the trial court for trial, they promulgated the new policy which was not supposed to be implemented until several months after trial. And it seems in that situation perfectly reasonable for a district court to say, here are the problems that I've uncovered. I'm going to look at the new policy and see if this new policy fixes it. The -- the problems were not moot, Justice O'Connor. These were ongoing problems. There were 200 prisoners who were there under a deficient policy. The question then was, were they entitled to something better? And did this new policy give them something better? And the -- the district court found, I think quite correctly, that it gave them a little better. It was tweaked. It was modified. But on some of the basic questions of whether or not you can bait and switch the reasons, whether you could tell somebody you're in here for drugs and then the classification chief could -- could put him in for something else, or whether you had to give them some reason that he can respond to -- in a situation where you're not having a trial, Mr. Chief Justice, where -- where the State does not have to come forward with any evidence. The only evidence the person is getting of what is his problem is this notice. And the question is, when that is the only evidence -- it's not like a trial like in the Federal courts where you have to present witnesses, you have to meet a standard of proof. It's not even in the -- like a disciplinary trial where you have to meet a certain standard of proof and present witnesses. The committee sits there. The guy comes in and they say to him, tell us why you're not a gang leader. And he says, well, tell me why you think I am a gang leader. And they should be forced to tell him that.
04-495 +++$+++ 24661 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what's wrong with giving him the opportunity to say why he's not a gang leader?
04-495 +++$+++ 24662 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ How is Mr. Roe going to say I'm not a gang leader because I wasn't hit over the head with a spatula because I'm a gang leader, I was hit over the head with a spatula because the guy doesn't like me, unless he knows that that's why they think he is a gang leader? How could he respond to that? All he could say is I don't know what you're talking about.
04-495 +++$+++ 24663 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But why can't you do that in an as-applied challenge? I mean, it may be that there was all this -- suppose we wrote an opinion hypothetically. Suppose -- and it said, look, I've read through this new policy. I assume it will be administered in accordance with the elements of due process, the basic elements being some kind of notice basically what -- what the factual part is, some kind of opportunity to present proofs in evidence that's a reasonable one, and some kind of decision by a neutral decision-maker. Certainly the language of the new policy permits such an interpretation. It doesn't -- and -- and suppose we were to say, well, we assume it will have the basic elements, and it's so complex, so detailed that -- that if they don't, then the individual who suffers could bring a claim and say it was administered unfairly in my case.
04-495 +++$+++ 24664 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think as a facial matter, when you're putting somebody in long-term solitary confinement for years and years in a small cell with no possibility of parole, you're -- I think you should give them notice of the reasons in sufficient --
04-495 +++$+++ 24665 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I'm not disagreeing with you.
04-495 +++$+++ 24666 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in sufficient detail.
04-495 +++$+++ 24667 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you see -- yes. I'm -- I'm not disagreeing with you. I'm saying I read their new policy, now having gotten to it the third time through all this detail, and it seems to me that they do give a notice, and Justice O'Connor just pointed out where there's a place for reasons. And as I read what happens after the committee decides, it says, it shall make a decision -- a recommendation accordingly -- according to this very long, detailed form.
04-495 +++$+++ 24668 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-495 +++$+++ 24669 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it doesn't say they won't tell the prisoner. It doesn't say whether they'll tell the prisoner.
04-495 +++$+++ 24670 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-495 +++$+++ 24671 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So why can't I assume they will tell him so he'll know what's going on? And then if they don't, you'd have an as-applied challenge.
04-495 +++$+++ 24672 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Even if, as an abstract matter, you could assume it, when you've had a 1-week trial with witness after witness, and the witnesses say they're not doing this --
04-495 +++$+++ 24673 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That was before the new policy.
04-495 +++$+++ 24674 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the new policy is introduced at trial. And the -- the question is -- really what you're saying, Justice Breyer, is the mere introduction of the new policy renders the whole case -- case moot.
04-495 +++$+++ 24675 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What I'm now saying is I can understand exactly why you might feel the way you do. But our job is to not necessarily take that feeling. But shouldn't we presume that the State will administer words that comport with the basic elements, not every detail as you want, but they will administer this new policy in accord with those basic elements of fairness? Isn't that giving a -- sort of like a deference to the State, which maybe we should?
04-495 +++$+++ 24676 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Maybe you should in an ordinary case. Where there's been a trial and it's a clear pattern and practice that they're not, then I think that Friends of the Earth v. Laidlaw says that you have to show that the new policy is going to cure the problems.
04-495 +++$+++ 24677 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you -- are you saying that what we have before us is this, a trial which showed that the pre-new policy procedures were deficient and the trial judge and you and a court of appeals interpreted the new policies as remedies for past wrongs that were established? And the question is the adequacy of that remedy. That's one way to look at the case.
04-495 +++$+++ 24678 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's certainly one way.
04-495 +++$+++ 24679 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Another way to look at the case is to say that Ohio admitted that there were some improprieties, showed its new policy, and the case turned on the adequacy of the new policies. Now, those are two different things. Which is this case?
04-495 +++$+++ 24680 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But to look at it the second way, you have to show that the problems proved at trial were moot. If the problems are ongoing, then the plaintiffs are entitled to a remedy. You can't say that there are problems that are ongoing, which there were -- they were all --
04-495 +++$+++ 24681 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But how can you know whether the problems are ongoing if the new rules haven't been implemented?
04-495 +++$+++ 24682 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they are ongoing at trial. When the trial judge renders his decision, they're ongoing. The question then is looking at this abstractly, it's not a question of in the abstract is it okay, but in the abstract will it cure the problems.
04-495 +++$+++ 24683 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why -- why isn't it a question of as facially in the abstract is it okay?
04-495 +++$+++ 24684 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Well, as I said, facially in the abstract, I think it's not okay because I think they should have final decision with reasons and notice with sufficient detail for reasons. But even if you don't agree with me on that, I think that this case, when you have an -- when you have a trial and there's a pattern and practice of -- of problems, I don't think that it's proper to simply assume that a piece of paper which says we'll give reasons is adequate when the reasons that they're giving and that the trial shows they're giving are inadequate. They're vague. They're -- they're shifting the ball on people. And I -- and I think --
04-495 +++$+++ 24685 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask this question, Mr. Lobel? Putting aside for a second which policy we look at and so forth, were there findings that particular inmates were improperly sent to this facility?
04-495 +++$+++ 24686 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There -- there were findings that -- that there were -- particular inmates who were improperly -- were sent with no evidence against them.
04-495 +++$+++ 24687 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right, and was there any -- any order saying that inmate should get out and go to a different facility?
04-495 +++$+++ 24688 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. The district court simply ordered that since there was a widespread showing of arbitrary and capricious placement and -- and that there was a showing that they built the prison for 500 -- with 500 cells and they didn't need 500 cells and they were putting people in there who didn't need -- who didn't meet the criteria that they set forward -- there was a widespread showing of that. The district court said you should give them new hearings following a procedure which would be sufficient to meet the constitutional Due Process Clause.
04-495 +++$+++ 24689 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so the State then came back and said we're putting in this new policy, we will give them new hearings under the new policy?
04-495 +++$+++ 24690 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. The -- the State never implemented the new policy. The court said what you should do is give them hearings, which give them notice sufficient to explain what's going on, render a final decision which explains what's going on, give them a chance to produce witnesses if they have a -- if they have witnesses, and they gave them hearings --
04-495 +++$+++ 24691 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So that even though -- if I understand it correctly, even though there had findings that some inmates have been improperly -- had had inadequate procedure as a predicate to going into the new facility, they can just stay there until the litigation is over.
04-495 +++$+++ 24692 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right because the district court didn't move any particular prisoner. But what happened was when you --
04-495 +++$+++ 24693 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where do -- where do we find those findings? Where in the record do we find the findings about individual people?
04-495 +++$+++ 24694 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They're -- they're all through the district court's opinion. If you want to look at Mr. Roe, it's at 73 to 76. Mr. Thompson is at 77 to 79. All of these were cases where the district court found people are being put in here on no evidence or essentially no evidence.
04-495 +++$+++ 24695 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And as -- and as to those prisoners, was there a requirement that the -- that the court's procedures be made applicable and so there would have to be a retroactive hearing as to those prisoners?
04-495 +++$+++ 24696 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For all the prisoners. Several -- several months later, there were new hearings. And what happened then was that the amount of prisoners at this prison went from 330 to where it is right now, which is 48, the same in the Federal control -- as in the Federal control unit.
04-495 +++$+++ 24697 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can you just give me 1 minute on the other issue?
04-495 +++$+++ 24698 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We're talking about 48 prisoners.
04-495 +++$+++ 24699 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can you tell us on -- on the liberty interest where we started with the --
04-495 +++$+++ 24700 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-495 +++$+++ 24701 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- with the Attorney General, is there a liberty interest in not being transferred from prison 1 -- level 1 to level 2 --
04-495 +++$+++ 24702 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
04-495 +++$+++ 24703 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- level 2, that sort of thing? Why is it that there's a liberty interest in being transferred -- I guess being transferred from 4 to 5?
04-495 +++$+++ 24704 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We argued here that this was an atypical, significant hardship compared not to level 1, 2, 3, or 4, but compared to the segregation units, any other prison in Ohio, even the segregation units, and for three reasons, all of which in combination the court of -- the district court held required a finding of liberty interest. One, it's long-term, indefinite. There were over 200 people here who were there for almost as long as the building was open, and there was no reason to believe that they were ever going to get out. It was indefinite. That's very different than Sandin's 30-day disciplinary confinement.
04-495 +++$+++ 24705 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought there -- there was at least annual review. Isn't -- wasn't there an annual --
04-495 +++$+++ 24706 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was an annual review, but the committee that they set up to review it, made up not of law professors, but made up of correctional officials, said --
04-495 +++$+++ 24707 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And a good thing too. (Laughter.)
04-495 +++$+++ 24708 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And a good thing, I agree. I would -- I would hate to be doing this. But made up of wardens and deputy wardens, said Mr. Roe, there's no reason you should be here, you should get out. And then based on reasons and evidence, which Mr. Roe never knew, which the committee never knew -- the committee thought Mr. Roe was in there for one reason, and it turned out on trial he was in there for another reason. The classification chief says to him -- says, you're going to stay here another year. Mr. Roe goes back, has a perfect record, does every program he can do. He comes back to the committee. The committee says, Mr. Roe, you should get out of here again. And the classification chief again says, I'm sorry, for no reason I'm just going to keep you here. And at that point you say, well, Mr. Roe, you may be here for the rest of your life, and there's no -- this is not definite like in the control unit where --
04-495 +++$+++ 24709 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What does the new policy say about this?
04-495 +++$+++ 24710 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Nothing.
04-495 +++$+++ 24711 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Nothing about --
04-495 +++$+++ 24712 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Nothing.
04-495 +++$+++ 24713 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- about the annual review.
04-495 +++$+++ 24714 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It says you get an annual review. They got an annual review. The new policy doesn't say. And what the district court ordered was draconian, that the classification chief, after he does this, without hearing from the inmate, without giving him reasons, has to write a final decision, which gives him some of the reasons that Mr. Roe is being kept there, and that they have to tell him, like they told the prisoners in -- in Greenholtz, what you have to do to get out. What -- and that doesn't seem to me unreasonable. And all you have to do is give a one-paragraph reason. Now, that's the first reason, but that's not the only reason. The State officials testified that this was qualitatively different than any other prisoner, that the level of restriction, the no outdoor recreation for many years, that people have not been outside for years, the small cell with solid steel doors so that they could not hardly talk to anybody or see anybody, that these were conditions --
04-495 +++$+++ 24715 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did they have reading materials? I --
04-495 +++$+++ 24716 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They had reading materials, yes, Your Honor, and they had televisions so they could watch their favorite programs. But they had nobody to talk to. And we -- the experiment that was done with long-term solitary confinement, which this Court itself in the 1890's found caused people to go crazy -- if you have to give people the process that was required here to send the prisoner to a mental institution, you should have to give them at least that process to send them into a situation which is going to send them to the mental institution. (Laughter.)
04-495 +++$+++ 24717 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that's what's involved here. It's a qualitatively different type of experience. And the Seventh Circuit in U.S. v. Johnson said you cannot sentence somebody to -- into solitary confinement for the term of their sentence because it's a qualitatively different type of experience. It's not the 30 days in Sandin. It's not the 7 weeks in Ewing. This is qualitatively different. And to top it off, the third reason is because these people were automatically deemed ineligible for parole. And Justice Scalia, in Sandin, the Court said in this case it's not -- the -- the prisoner isn't being denied parole. Well, here we have evidence that there are prisoners who were -- the parole board said we will release you on parole. All you have to do is get out of the supermax. The committee says -- a correctional officials says, you're ready to go.
04-495 +++$+++ 24718 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's not the whole class, though.
04-495 +++$+++ 24719 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not --
04-495 +++$+++ 24720 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You have a class action. It's just a few of them. In fact, there's -- there's no more parole in Ohio, as I understand it.
04-495 +++$+++ 24721 +++$+++ TRUE +++$+++ MR. LOBEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but a -- the vast -- I believe it's over 90 percent of the people who were in this prison were sentenced under the old rules, under the old parole rules. And in addition, every prisoner who got sent to this prison was delayed parole for the 2, 3, 4, 5, 6, 10 years that they were going to spend at this prison. So every prisoner it affected. Thank you very much.
04-495 +++$+++ 24722 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ General Petro, you have 3 minutes remaining.
04-495 +++$+++ 24724 +++$+++ FALSE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. It has been pointed out that -- that inmates stay in the prison for many years, but in reality, over 600 inmates since the opening of -- of Ohio State penitentiary in 1998 -- over 600 inmates have gone into level 5 and over 550 inmates have left level 5. And so the classification process is an ongoing process. It is now established under an order of the district court, but we submit, Your Honors, that the new policy that was presented in 2002 at the time this case was pending trial, was a policy that provided a process which was the best type of process for a predictive decision. This Court has often deferred to the decision-making of -- of prison officials in seeking to protect the safety and security of the prison. And in this instance, the policy that was put in place and the hearing process, without actually having essentially a fact-finding process, which is what the court has imposed on this process, was the kind of process that allows for prison officials to review a whole variety of additional information even beyond what might be evidentiary. When we think about the conditions in the prison where the inmate is currently housed, if they're at the Lucasville penitentiary in level 4 -- and the conditions there are particularly volatile -- the prison officials need to have the flexibility to make a decision on placement in level 5 not only to protect this inmate but to protect the institution itself and the safety of the inmates and the safety, of course, of -- of the personnel that work at the facility. In the Mathews test, which was applied both by the district court and by the court of appeals, there is clearly an acknowledgement that the interest of the government is very strong. But in the second step of the Mathews test, there's a recognition that additional procedures really add no value to the decision-making process. Here the -- the government needs to have the capacity and the -- the ability to make the best possible decision looking at a whole variety of factors, and to have a procedure put in place by the court that requires a full display of all the evidence that will be presented at the time of hearing, as incorporated in the notice to the inmate that a hearing will be held, and then an acknowledgement that there's -- only this evidence is the evidence that -- that is being relied upon really presents essentially a fact-finding hearing where the hearing process that is set forth in New Policy 111-07 is more than just fact-finding. It's kind of an analysis. It gets an opportunity -- provides an opportunity to really assess the attitude of the inmate, the -- the risks that are involved in -- in placement in a -- in a different level in a different penitentiary. It is directed at protecting the safety and the security of the inmates and, obviously, of protecting the -- the safety of the personnel. And it is fully consistent with this Court's precedents. In applying the Mathews test --
04-495 +++$+++ 24725 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General Petro.
04-495 +++$+++ 24726 +++$+++ TRUE +++$+++ MR. PETRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-495 +++$+++ 24727 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The case is submitted.
04-514 +++$+++ 24731 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument now in Ricky Bell v. Gregory Thompson. Ms. Smith.
04-514 +++$+++ 24733 +++$+++ FALSE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: When the Sixth Circuit withdrew its judgment affirming the denial of habeas corpus relief 6 months after this Court denied certiorari review, it exceeded its authority to act under both the rules of appellate procedure and this Court's decision in Calderon v. Thompson. As to the rules, rule 41(d)(2)(D) requires, without exception, that the court issue a mandate immediately upon the filing of an order of this Court denying certiorari. That did not happen in this case. But because the court had no discretion under the rule to do anything other than to issue that mandate, its subsequent action withdrawing its judgment was tantamount to a recall of the mandate, which, under this Court's precedent in Calderon, cannot be justified in this case because the evidence simply does not support a miscarriage of justice, which under Calderon means actual innocence of the offense or actual innocence of the death penalty.
04-514 +++$+++ 24734 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If you're -- if you're going to -- if you're going to consider something that wasn't a recall of a mandate as if it was, why don't you consider it as a rule 41(b) action?
04-514 +++$+++ 24735 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we don't read rule 41(b) as allowing any sort of recall authority. Rule 41
04-514 +++$+++ 24736 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They didn't recall it, didn't -- did they? Did they recall it? They issued it and then recalled it?
04-514 +++$+++ 24737 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The mandate was not recalled --
04-514 +++$+++ 24738 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Fine.
04-514 +++$+++ 24739 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- because it was never issued.
04-514 +++$+++ 24740 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Correct. So we did -- they didn't recall it. So, of course, 41(b) does not have to do with recalls. 41(b) has to do with issuances, and 41(b) says the court may shorten or extend the time for issuing. Now, why wouldn't that be the obvious rule to apply to what occurred here?
04-514 +++$+++ 24741 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, that is not -- not the rule applicable here because that rule applies in a different context. That applies at an earlier stage of the post-judgment proceeding.
04-514 +++$+++ 24742 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where does it say earlier?
04-514 +++$+++ 24743 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Rule 41(b) specifically deals with the 7-day period of -- of time for issuance following the expiration of the time for a petition for rehearing or the disposition of that petition for rehearing.
04-514 +++$+++ 24744 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the court can -- can extend it or -- or in fact truncate it, can't it?
04-514 +++$+++ 24745 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It can, Your Honor, at that point.
04-514 +++$+++ 24746 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What -- what if the court then -- I'm -- let me just get to -- and I think this is consistent with Justice Breyer's question. What if the court, at the -- at the point cert was denied and rehearing was denied, simply said, I -- we're now operating under (b) and we're extending the time?
04-514 +++$+++ 24747 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the more specific provision -- what the court had actually done was to stay the mandate pending a petition for writ of certiorari. The -- the --
04-514 +++$+++ 24748 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh. That's -- that's what it did, but what if the court had -- had been more articulate about what -- what it -- it was doing or may have been doing and -- and simply said -- at the moment at which the -- the rehearing period expired for cert, said, all right, we're still not issuing the mandate and we're operating under subsection (b), we're extending the time. Would -- is -- is there anything in the rule that, at least in terms, would have precluded the court from doing that if it had said that?
04-514 +++$+++ 24749 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that simply a plain reading of the rule and looking at the rule as a whole would preclude that result. And the reason is that the -- the specific language that -- that Your Honor is referring to speaks in terms of shortening or extending the time, the time being the 7-day period for issuance. That 7-day period is simply a period to allow the clerk a window of time to get the mandate out after the rehearing period has expired or after the rehearing has been disposed of. But it does not give the court carte blanche to simply withhold the mandate.
04-514 +++$+++ 24750 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, there are -- are they any --
04-514 +++$+++ 24751 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you -- you would make the same argument to that that -- that you were making earlier, I assume, that to read it that way would -- would be to nullify Calderon.
04-514 +++$+++ 24752 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that's exactly right, Your Honor.
04-514 +++$+++ 24753 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, are there any circumstances in which the court can -- and let's again, as Justice Souter said, say that it put it on the record what it was going to do, that we hereby, after the Supreme Court has ruled in the case, will withhold -- order that the mandate shall be withheld for a period of 30 days because there is a -- a new case coming out on a different issue that may affect our -- our holdings?
04-514 +++$+++ 24754 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The court --
04-514 +++$+++ 24755 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or that a new case has been -- has been released and we think that bears on -- on the outcome.
04-514 +++$+++ 24756 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ After the --
04-514 +++$+++ 24757 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And we want to consider that.
04-514 +++$+++ 24758 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ After the denial of cert, Your Honor?
04-514 +++$+++ 24759 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, or after disposition by this Court on it --
04-514 +++$+++ 24760 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
04-514 +++$+++ 24761 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- when cert is granted.
04-514 +++$+++ 24762 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The rule does not allow for that withholding of the mandate.
04-514 +++$+++ 24763 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No -- so no circumstances can the issuance of the mandate be extended after this Court has denied the petition for writ of certiorari?
04-514 +++$+++ 24764 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the --
04-514 +++$+++ 24765 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Under no circumstances?
04-514 +++$+++ 24766 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the mandate has been stayed pending the petition for writ of certiorari and that petition has been denied, the rule requires the immediate issuance. Now, there -- there may be and -- and --
04-514 +++$+++ 24767 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- but you accepted the petition for rehearing in this Court would also count, although the rule doesn't say that.
04-514 +++$+++ 24768 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, Your Honor?
04-514 +++$+++ 24769 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The rule speaks about the mandate should issue when cert is denied, but in this case, there was a further extension while this Court was considering a petition for rehearing. Do you say that that was also outside the rules so that the mandate would have to issue when cert is denied even if there is a petition for rehearing and a request to continue the stay during the pendency of that rehearing petition?
04-514 +++$+++ 24770 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. The mandate should have issued --
04-514 +++$+++ 24771 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you say that that was wrong in this case too.
04-514 +++$+++ 24772 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That was in excess of the court's authority under the rules.
04-514 +++$+++ 24773 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So -- so your view --
04-514 +++$+++ 24774 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I just want to get -- if I may just get -- you say there are no circumstances in which -- where (d) is otherwise applicable, the mandate can -- can be -- the issuance of the mandate can be extended.
04-514 +++$+++ 24775 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In our view the rule does not allow any other circumstances. Rule 41 does not allow any other circumstances. If that authority --
04-514 +++$+++ 24776 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Did the prosecutor -- did the prosecutor object when there was a further extension given for the pendency of the petition for rehearing?
04-514 +++$+++ 24777 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The State did not object to the -- to the extension, Your Honor, because the -- the mandate was of no consequence to the State in terms of the State's actual -- a State court proceedings. The State did not need the mandate to go forward with its proceedings, and in fact, the State was not authorized under State law to even seek an -- an execution date until the time had expired for rehearing. So --
04-514 +++$+++ 24778 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I guess I'm -- I'm not clear about the facts here. Did -- did the court -- did the court comply with (b)? Did it shorten or extend the time? Was there any issuance of a -- of a -- of an order shortening or extending the time, or did the court just ignore the deadline and -- and act later?
04-514 +++$+++ 24779 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The court simply ignored the -- the -- the process of -- of the case -- the extension ability in subsection (b) was never invoked by the court. There was a timely petition for rehearing filed, which automatically stayed the mandate under subsection (d)(1).
04-514 +++$+++ 24780 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So there -- there is nothing from the court that -- that says we -- we shorten or extend the time.
04-514 +++$+++ 24781 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely correct, Your Honor. The court never invoked subsection (b) as authority for exaction. After -- when the petition for -- for rehearing was denied, the 7-day period in subsection (b) then came into play. The petitioner, or the -- the petitioner below, Mr. Thompson, filed a motion to withhold the matter, stay the mandate pending a petition for writ of certiorari, and that was --
04-514 +++$+++ 24782 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is that --
04-514 +++$+++ 24783 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then I guess that the -- that the conclusion would be, if you read 41(b), that if the court has not shortened the time, the court's mandate must issue 7 calendar days after.
04-514 +++$+++ 24784 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is our reading of the rule, yes, sir.
04-514 +++$+++ 24785 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But isn't that the reading of circuit?
04-514 +++$+++ 24786 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does that reading of the rule require that a decision to extend the time be set forth in any particular form of order or any written document?
04-514 +++$+++ 24787 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's our -- it's our reading of the rule that -- that the language employed in subsection (b) implies some affirmative action of -- of the court.
04-514 +++$+++ 24788 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Maybe they internally did affirmatively decide to extend the time, but they just didn't enter an order. Would that count?
04-514 +++$+++ 24789 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Your Honor. A court in -- in our view --
04-514 +++$+++ 24790 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What if they called counsel and said, we've decided to delay extending the time? Would that -- but we're -- we're going to extend the time, but we're not going to bother to enter an order. Would that constitute an extension?
04-514 +++$+++ 24791 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that would constitute an extension. I think the language in subsection (b) requires some --
04-514 +++$+++ 24792 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It requires a written document --
04-514 +++$+++ 24793 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- some affirmative order --
04-514 +++$+++ 24794 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- saying for how long it's going to be extended?
04-514 +++$+++ 24795 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Some affirmative order of the court not only saying we're going to extend the -- the time, but to give an alternative time. That -- subsection (b) does not allow for -- for an indefinite withholding of a mandate.
04-514 +++$+++ 24796 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, they apparently did decide to extend the time for whatever time it took them necessary to review the files that this particular judge became aware of during this period. They did, in fact, extend the time because they didn't issue it.
04-514 +++$+++ 24797 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ All this record shows, Your Honor, is that the mandate did not issue. So the reason for that is -- is not clear.
04-514 +++$+++ 24798 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did the court give any explanatory reason for what it did?
04-514 +++$+++ 24799 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. There is no order in this record explaining why the mandate did not issue.
04-514 +++$+++ 24800 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but the opinion of Judge Suhrheinrich -- I forget his name -- explains in great detail why he thought they needed more time before the mandate issued. I don't know why that isn't explaining why he extended the mandate.
04-514 +++$+++ 24801 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But a single judge doesn't have the authority, does he?
04-514 +++$+++ 24802 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I believe that a single judge would have the authority to extend the mandate, but a single judge would not have the authority to grant rehearing because that would be a determination of -- of the case.
04-514 +++$+++ 24803 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Ms. Smith, this -- unlike the Calderon, which is a -- was a -- a court has authority to recall a mandate that has already issued, this seemed to be a really idiosyncratic case. I mean, this was an extraordinary situation where a judge said, my goodness, I wrote an opinion that assumed this person was mentally okay, and now I discovered in the file things I never saw before. This is a death case. I have reason to suspect that this person may not have been competent when he committed the crime, may not have been competent when he -- when he stood trial, may not be competent at this very moment. A judge in that situation -- he finds something that looks like it's the -- it's -- it's the key piece of evidence in favor of the defendant. Somehow it never got submitted. A judge, knowing that he has written an opinion saying this man, as far as the Federal courts are concerned, goes to the State and they can set their date of execution and all that -- that was an -- this case is so idiosyncratic that I'm concerned about dealing with 41(b) and mandates for this really unusual situation.
04-514 +++$+++ 24804 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is an unusual situation, Your Honor, but the court did more than simply write an opinion. The court entered a judgment on that opinion, and that judgment became final and became the final word of the court upon entry --
04-514 +++$+++ 24805 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He couldn't have recalled the opinion because of the extraordinary circumstance. My God, I made a mistake. He couldn't recall the opinion, could he?
04-514 +++$+++ 24806 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The court always have the -- the safety valve of -- of its recall power under extraordinary circumstances. Now, in a habeas case, that extraordinary circumstance has to be more than just this -- for some reason, I overlooked this. And -- and bear in mind as well that this evidence was in front of the court. Judge Suhrheinrich had this deposition for 21 months before that first opinion was entered and that first judgment was entered. So this was not something --
04-514 +++$+++ 24807 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let -- let me ask you this. Your -- I think you say that you -- you cannot extend the period for issuance of a mandate after the Supreme Court has denied the petition. Could the court then issue the mandate and then recall it under Calderon?
04-514 +++$+++ 24808 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's precisely what the court should have done in this case, Your Honor, in -- in our view. The mandate was required to issue and then the court should have looked at this extraordinary circumstance, this -- this unusual circumstance, and made the determination under Calderon whether that met the standard for a miscarriage of justice under the habeas decisions of this Court, specifically Calderon.
04-514 +++$+++ 24809 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Have you surveyed the circuits? I know this -- what -- what you describe as the practice certainly wouldn't have been in the First Circuit. Maybe in the D.C. it was, but I mean, we would have thought that we have the power over our own mandate. And of course, if it hasn't issued and some extraordinary thing comes along requiring a revision, we would have revised it. So when you read the rules and you say that's what we argue, you're not arguing it about any court that I'm familiar with as an appeals court. So -- so have you looked up the appeals courts and found that in fact there is at least one court or two or maybe more that follow the interpretation that you're arguing for?
04-514 +++$+++ 24810 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we have not done that type of -- of inventory.
04-514 +++$+++ 24811 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if you have not, then my experience would be you're arguing for a rule that no appeals court follows, that -- that all think they have power over the mandate, and that the question becomes one of whether or not there was a good reason for delaying the mandate.
04-514 +++$+++ 24812 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor --
04-514 +++$+++ 24813 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If there was a good reason, they could, and if there wasn't, maybe they couldn't. But Justice Ginsburg has set forth what sounds to me like an excellent reason, that the judge discovered he had made an error that could mean life or death or jail or innocence, and before that opinion issues, I want to be sure it's correct. Now -- now, that's how I'm thinking, that the general practice is contrary to what you say, that the question is a good reason, and that here there could hardly be a better one. So what is your response?
04-514 +++$+++ 24814 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, our response to that is -- is twofold. Number one, I don't think that -- that the Rules of -- of Appellate Procedure can be abrogated by the consensus of the circuits.
04-514 +++$+++ 24815 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And all the circuits have just been wrong in their interpretation.
04-514 +++$+++ 24816 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the circuits are not complying with the plain language of the rule, then -- then, yes, they have.
04-514 +++$+++ 24817 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We don't know that all the circuits have that interpretation.
04-514 +++$+++ 24818 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't either.
04-514 +++$+++ 24819 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Has Justice Breyer conducted the kind of investigation he asked you about? (Laughter.)
04-514 +++$+++ 24820 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, how many cases very similar to that -- this exists? It struck me as just procedurally bizarre.
04-514 +++$+++ 24821 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This is an unusual case in the way that it's set out in Judge Suhrheinrich's opinion, Your Honor. But if you look at it and -- and look at it in the way that -- that it should have played out -- and the way it should have played out was that the mandate should have issued after this Court denied cert. This Court then went on after that to deny rehearing and the State moved forward. If at that point Judge Suhrheinrich looked at this deposition and believed that it established or showed an extraordinary circumstance, than a recall would -- would have occurred, and then that would have been an issue. But if you look at the evidence itself, it simply does not rise to the level of -- of extraordinary circumstances. It does not show actual innocence of the offense. Gregory Thompson has all along admitted that he committed this offense. There was no defense of it at trial.
04-514 +++$+++ 24822 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let's -- let's take the hypothetical where there is an extraordinary -- where it -- it does rise to the very high level. And then you have these facts. They just don't say anything and -- and they keep the case. If they could have issued the mandate and then recalled it, what difference does it really make, assuming there is an extraordinary circumstance? I know you deny that.
04-514 +++$+++ 24823 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Assuming there is an extraordinary circumstance, I think to prevent the result of having to issue and then immediately recall, I think the court in that circumstance, assuming there was actually an extraordinary circumstance, actual innocence of the offense or actual innocence of the death penalty, which we don't think was shown in this case -- what the court could do in our view is to invoke its authority under rule 2 to suspend the rules for good cause. And in that circumstance, given the finality of the judgment, the good cause must rise to the level of a miscarriage of justice under Calderon.
04-514 +++$+++ 24824 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it wouldn't have to suspend the rules for good cause since it has authority to extend the time for issuing the mandate. It can comply with 41(b). So I think the most you can say is that the court, when it's faced with extraordinary circumstances of -- of the sort that could overcome Calderon, should issue and order extending the mandate because, and explaining why, because there's this evidence which, if true, would, you know, produce a miscarriage of justice in this case.
04-514 +++$+++ 24825 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's one interpretation of the rule, Your Honor. We read that -- the rule a little bit stricter than that, and we limit that extension in our reading to the 7-day period after the expiration of the time to seek rehearing or the denial. But I think that that is a -- that is a reading --
04-514 +++$+++ 24826 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Tell me again. How do you -- you read the rule to say?
04-514 +++$+++ 24827 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We read the rule (b), the extension period --
04-514 +++$+++ 24828 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-514 +++$+++ 24829 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to be limited to the 7-day period after the expiration of the time to seek rehearing or the disposition of the petition for rehearing en banc or by panel or the disposition of a motion to stay the mandate. We limit that to -- that interpretation to a different phase of the proceeding.
04-514 +++$+++ 24830 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it doesn't expressly say that in that last sentence.
04-514 +++$+++ 24831 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it doesn't, Your Honor.
04-514 +++$+++ 24832 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you going to address the seriousness with which this evidence should be viewed? Because it is disturbing. It certainly would go to whether a death penalty should be given.
04-514 +++$+++ 24833 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would like to address that, Your Honor, because I think that -- that the seriousness of this evidence has been vastly overstated in the concurring opinion of the Sixth Circuit. The evidence itself was -- was quite simply a deposition of a clinical psychologist who opined based on her -- some additional -- some additional meetings with family members and a review of the transcripts and other evidence that the petitioner suffered from a mental illness at the time of the offense.
04-514 +++$+++ 24834 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Didn't she interview the -- the petitioner herself? Did she not interview the -- the defendant himself?
04-514 +++$+++ 24835 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ She did.
04-514 +++$+++ 24836 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-514 +++$+++ 24837 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ She conducted some -- some --
04-514 +++$+++ 24838 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ At two different points in time, wasn't it?
04-514 +++$+++ 24839 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, she did, Your Honor, but her ultimate opinion was couched in the language of Tennessee's statutory mitigating circumstance, that -- that Mr. Thompson at the time of the offense suffered from a mental illness or defect that -- that impaired his ability to -- to conform his conduct to the requirements of the law, but that was not sufficient to meet the legal definition of insanity. That is the -- that is the -- exactly the language under Tennessee's mitigator that -- that Dr. Sultan's opinion was specifically limited to.
04-514 +++$+++ 24840 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you disagree with the factual point that I think one of the opinions made, that this study was not, in fact, known to exist by the members of the court of appeals panel who decided the merits of the case before the petition for cert was filed?
04-514 +++$+++ 24841 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, there is a disagreement in the opinion itself that --
04-514 +++$+++ 24842 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ As to how serious it was. I understand. But do you -- do you disagree with what I understood to be a representation of Judge Suhrheinrich that he did not know about this study, did not know -- it had not gotten into the record, and neither did anybody else on the panel, even though, it seems to me, sort of strange that nobody did know it? I have to confess that. But do you dispute the factual predicate or the fact that -- that they did not know that this study was available?
04-514 +++$+++ 24843 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Judge Suhrheinrich represented that he was unaware of the deposition, and I have no way to dispute that except to say -- I have no way to dispute his own personal representation. But Judge Moore pointed out in the majority opinion that the deposition was, in fact, before the court and had been presented for -- 21 months earlier than the initial opinion was entered.
04-514 +++$+++ 24844 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How would it have been presented? Because it wasn't -- it wasn't even in the record in the district court. I mean, that was what Suhrheinrich was so bewildered about, that here was what seemed to be the strongest evidence for the defendant, and at the end of the proceeding in the district court, it's not even made formally a part of the record. It was a deposition. Right?
04-514 +++$+++ 24845 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was a deposition. It was attached to a motion to hold the appeal in abeyance pending the disposition of a rule 60 motion in the district court. That's how it came before the -- before the court of appeals.
04-514 +++$+++ 24846 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So it wasn't -- it wasn't in the district court record. It wasn't in the record that went from the district court to the court of appeals. It wasn't in the record on appeal.
04-514 +++$+++ 24847 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was -- it was before the court by way of that motion. It was not properly in the record. But then again, it was not any more proper to consider after its opinion than it was to consider before it --
04-514 +++$+++ 24848 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was -- was it before the --
04-514 +++$+++ 24849 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But wasn't the --
04-514 +++$+++ 24850 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- court of appeals in the petition for rehearing after the court of appeals made its decision?
04-514 +++$+++ 24851 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was quoted in the petition for rehearing.
04-514 +++$+++ 24852 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so it was referenced in the petition for rehearing.
04-514 +++$+++ 24853 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was directly quoted. The ultimate opinion, with regard to the mitigator, was directly quoted. But the -- the point that I was making earlier, this deposition in no way renders the -- the defendant ineligible for the death penalty because it does not undermine any of the three aggravating circumstances. It does not even make a prima facie showing of insanity under Tennessee law, as I've stated earlier. It simply tracked the mitigating circumstance under the statute, and as this court held in Sawyer v. Whitley, simply additional mitigating circumstances does not rise to the level of innocence of the death penalty. So it neither -- it demonstrates neither innocence of the -- the offense or of the death penalty. And even more so than that, it would not have even defeated --
04-514 +++$+++ 24854 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You -- you think it could not have been considered in mitigation in the decision whether to give a death sentence?
04-514 +++$+++ 24855 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think it would have been one element of -- that -- that may have been considered. But in terms of the extraordinary circumstance, innocent of the death penalty or innocence of the offense, it would not rise to that level.
04-514 +++$+++ 24856 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Calderon requires not just that it might have been additional mitigation, but that the defendant would have been ineligible for the death penalty.
04-514 +++$+++ 24857 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's -- that's exactly right, Your Honor.
04-514 +++$+++ 24858 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's how I read the case.
04-514 +++$+++ 24859 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In Sawyer v. Whitley, this Court specifically said that and rejected the -- the contention that additional mitigation -- mitigating evidence would render a defendant ineligible of the death penalty. So this does not satisfy the actual innocence extraordinary circumstances. Nor would it have --
04-514 +++$+++ 24860 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that -- that may be but the -- the fact that this sort of evidence would ultimately be kept out from the court of appeals and ultimately from the district court may be a very good reason for us not to adopt your analysis that what happened here is the equivalent of a mandate issuing and a mandate being recalled. It may be a very good reason to prefer a different analysis.
04-514 +++$+++ 24861 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we -- we -- it would be mere speculation to -- for -- for this Court or any court to -- to conclude why this evidence was not presented to the district court. There are any number of reasons.
04-514 +++$+++ 24862 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We -- we don't have to conclude why it was not presented. All we have to be concerned with or what, I think, we have to be concerned with is this. Is this very important evidence? The answer is yes. It may not go to eligibility, but it's very significant. Number two, if we accept your Calderon analysis, this evidence will be kept out forever. If it's that important, that may be a good reason not to accept your Calderon analysis and say if the mandate hasn't issued, it hasn't issued.
04-514 +++$+++ 24863 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor --
04-514 +++$+++ 24864 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's -- that's my point and -- and you may want to respond to that.
04-514 +++$+++ 24865 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, my response to that is it is not that important, and when I say that, it is not that important because it would not even have defeated summary judgment. The --
04-514 +++$+++ 24866 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I presume your -- your answer would also be that if it's a good reason for -- for not issuing the mandate, as you're supposed to, it would equivalently be a good reason to recall the mandate. We -- we crossed that bridge in Calderon.
04-514 +++$+++ 24867 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is precisely the argument that we are making, Your Honor.
04-514 +++$+++ 24868 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And I take it you also recognize that the bridge that we did not cross in Calderon was -- was in answering the question whether -- in a case in which a court does not issue the mandate, we are going to construe the court's authority, its -- its discretion narrowly or broadly. And that is the issue before us here, isn't it?
04-514 +++$+++ 24869 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is, Your Honor. The issue here is -- is whether Calderon extends to this situation. We think it does.
04-514 +++$+++ 24870 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What you're saying is -- essentially is we should regard this as though what wasn't done had been done because it was supposed to have been done. In other words, you're saying treat this just as if the mandate issued and was being recalled. That's what I get to be the gist of your argument.
04-514 +++$+++ 24871 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is what we're saying, Your Honor, because the effect on the State of Tennessee is precisely the same. The finality is the same. The judgment was -- was entered and final at the point that the court entered it the first time in January of 2003.
04-514 +++$+++ 24872 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But let me ask you this. Why should not the proper standard of being -- deciding -- the court of appeals panel has decided a case. They -- they learn something that would have caused them to come to a different conclusion had they not -- had they known it in time. Should not that be a sufficient reason to extend the 7-day period?
04-514 +++$+++ 24873 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do not think that that would be a sufficient reason, Your Honor, because --
04-514 +++$+++ 24874 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why not?
04-514 +++$+++ 24875 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the extension period --
04-514 +++$+++ 24876 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why does it have to be miscarriage of justice? They just say we goofed for an inexcusable reason. We now realize there's something very important we failed to -- failed to find out. We now know it, and we would decide the case differently had we known it a week ago. Is that not a sufficient reason to say let's postpone the 7 days?
04-514 +++$+++ 24877 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the court felt -- the 7-day period is not to allow the court to rehear the case. If the court wishes to invoke --
04-514 +++$+++ 24878 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I understand that.
04-514 +++$+++ 24879 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a rehearing --
04-514 +++$+++ 24880 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm just asking whether if you were on the -- on the court of appeals, wouldn't you think that would be a sufficient reason to say, hey, don't issue the mandate? Hold it for a week so we can look at this. You don't think that would be permissible for an appellate judge to do that?
04-514 +++$+++ 24881 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would not be permissible. That is not the purpose of the extension. It is not to allow a court to continue to mull over a case once a final judgment has been entered. The mandate is not the judgment. The judgment is the decision of the court, and once the -- the court has affirmed that judgment, the judgment dismissing, denying habeas relief, the State's interests become paramount. Particularly at the point when this Court has denied cert, all avenues of review have been exhausted, the State at that point ought to be able to rely on the finality and ought to be able to rely on a court to comply with the plain language of the rules that governed it. If any -- if any body should be -- should be bound by the rules, it should be a court, and they should not be able to be abrogated by some consensus or just the fact that courts don't ordinarily follow them or -- or may or may not think that -- that it's appropriate under a particular circumstance. Mr. Chief Justice, may I reserve the remainder of my time?
04-514 +++$+++ 24882 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Very well, Ms. Smith. Mr. Shors.
04-514 +++$+++ 24884 +++$+++ FALSE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Before it relinquished jurisdiction over this case, the court of appeals engaged in sua sponte reconsideration to correct a clear error in its prior decision which called into question the reliability of Mr. Thompson's death sentence. That --
04-514 +++$+++ 24885 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ For how long after the judgment becomes final can a court engage in sua sponte consideration of whether to grant a rehearing?
04-514 +++$+++ 24886 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if the court is acting pursuant to 41(b), which we believe can occur without a formal stay order, it -- it can do that at any time before it issues the mandate. We're unaware of circumstances in which that's extended for indefinite periods of time, and I think this case is a perfect illustration as to why. This is a --
04-514 +++$+++ 24887 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you do about -- about the provision not of 41(b) but of 41(d)(2)? There had been a petition for certiorari here, which was denied.
04-514 +++$+++ 24888 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-514 +++$+++ 24889 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Correct?
04-514 +++$+++ 24890 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Justice Scalia.
04-514 +++$+++ 24891 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and (d)(2)(D) says the court of appeals must issue the mandate immediately when a copy of a Supreme Court order denying the petition for writ of certiorari is filed. That didn't happen.
04-514 +++$+++ 24892 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Justice Scalia. (d)(2)(D) sets forth the endpoint of a stay entered pending a petition for certiorari in this Court. That is not the only reason a court of appeals may stay or delay issuance of its mandate. In fact, if you look at other sections of the rule, (d)(1) affirmatively sets forth a separate basis for staying issuance of the mandate if there is a petition for rehearing filed. And the mere fact that you could have competing stays in a case we think illustrates the incorrectness of the State's view that (d)(2)(D) eclipses everything else and requires issuance of the mandate under all circumstances. The ultimate power at issue in this case is rule 41(b) which gives the court the power to shorten or extend the time for which to issue its mandate. As we've set forth in the brief, there are all kinds of reasons why a court of appeals may occasionally continue to do that beyond the denial of certiorari review by this Court.
04-514 +++$+++ 24893 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Don't you think it has to issue an order? The State here, having received a judgment and -- and seemingly a mandate has to issue after the judgment unless there's an order extending the time -- went ahead with proceedings to -- to set the execution, to have the -- the person examined to be sure that he was competent to be executed, going through many stages, and was it proper for this court without -- without ever issuing an order extending the time for the mandate, simply to come back -- what -- 18 months later and say, oh, by the way?
04-514 +++$+++ 24894 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, it was proper for several reasons. First, rule 41(b) does not require a court order. Unlike other provisions of the Federal Rules of Appellate Procedure, including rule 40, it simply says, may extend or shorten the time. If you look at the history of the rule, one of the reasons the advisory committee specifically rejected a reading of rule 41(c) that would have made the mandate effective when it should have issued is that you can never know from looking at the docket alone whether the non-issuance of the mandate was because of a clerical error or because of a judge's intervention in the case.
04-514 +++$+++ 24895 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're on -- you're on the court of appeals. They're proceeding for execution. The families of the victims know. The -- the accused, the condemned man, is being -- you tell your colleagues, let's just say nothing about this. You think that's good practice?
04-514 +++$+++ 24896 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think it's necessarily good practice, Justice Kennedy, but it is consistent with the rule. And their attack on -- on rule 41 in this case is an attack on the general authority of courts of appeals.
04-514 +++$+++ 24897 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's consistent with the rule not to enter an order that you're extending the time?
04-514 +++$+++ 24898 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely it is, Justice Kennedy, because as I noted, the rule doesn't say by order. The practice --
04-514 +++$+++ 24899 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's a very strange reading of the rule.
04-514 +++$+++ 24900 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you know any precedent, any case, in which rule 41(b) has been invoked after there has been a petition for cert and petition for cert has been denied? In practice, is there any other case in the world like this? I don't know of any.
04-514 +++$+++ 24901 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, there are cases we've cited and rules where the question comes up, does there have to be a formal order entered. We've cited the Sparks case, the Alphin case, and the First Gibraltar case. And -- and there are some cases in which, following the denial of certiorari, courts of appeal continue to engage in reconsideration of the matter. We think that's what happened in the Fairchild case cited in the -- in the red brief, and to a lesser extent, it's what happened in the Muntaqim case coming out of the Second Circuit. And the reason is --
04-514 +++$+++ 24902 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Were -- were those cases in which they issued an order saying what they were doing? I.e., we extend under (b)?
04-514 +++$+++ 24903 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, in the Sparks case, as well as in the Rivera case, no, there was no such order. And what the Sparks court said, reading rule (b) correctly we believe, is there's no provision in rule 41(b) that requires a formal order. That's what's set forth in (d) in response to motions. And the reason is a case is not final until the court of appeals issues its mandate. And so the burden is on the litigant --
04-514 +++$+++ 24904 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that -- is that really true? Is -- you have a judgment, and it doesn't have preclusive effect from the time it issues? It -- it's just sort of suspended there with no effect until the mandate issues?
04-514 +++$+++ 24905 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, it has some effects, but the -- the critical point for this case is the power to reconsider is not eclipsed until the mandate issues. That's what this Court held in Forman v. United States, and we think it's what the advisory committee notes of rule 35 and 40 indicate.
04-514 +++$+++ 24906 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Shouldn't the State at least be notified of the pendency of this sort of thing?
04-514 +++$+++ 24907 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, the -- the State was effectively notified when the mandate did not issue.
04-514 +++$+++ 24908 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, now, that -- that really doesn't add up.
04-514 +++$+++ 24909 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Mr. Chief Justice --
04-514 +++$+++ 24910 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That might be a clerical error all by itself.
04-514 +++$+++ 24911 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it could be a clerical error, Mr. Chief Justice, and we -- we think that's exactly why the advisory committee note -- notes indicate that an attorney who believes that a mandate should have issued should confirm that he or she has secured a final judgment before assuming that the court of appeals jurisdiction over a case is completed. That didn't happen in this case.
04-514 +++$+++ 24912 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there was no doubt that there was a final judgment here in the death sentence.
04-514 +++$+++ 24913 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For -- for purposes of appeal, that -- that would be true, but in -- in this case, as we think the advisory committee notes made clear, the -- the burden is on the party, seeking to secure a final judgment, to confirm that a mandate has issued. In fact, in --
04-514 +++$+++ 24914 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's so remarkable, isn't it, that the court did not notify the State and -- and the defendant about what it was considering? It didn't enable them to address the issues by briefs, memos, or argument. I mean, this -- this -- it's just an amazing sequence, don't you think?
04-514 +++$+++ 24915 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice O'Connor --
04-514 +++$+++ 24916 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And how -- how could they possibly do the best job they could on the opinion without letting the parties know what they were trying to do and to address the issue?
04-514 +++$+++ 24917 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice O'Connor, the -- the panel did get the decision right in the second case, and it did so in response to a thorough review of the entire record. Courts of appeal frequently engage in reconsideration without requiring additional briefing and --
04-514 +++$+++ 24918 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This was -- this was how long after cert had been denied?
04-514 +++$+++ 24919 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Cert was denied on December 1st and the second opinion was June 23rd. So it was a period of about 6 and a half months. It's less than that if you consider that there was a second petition to stay the mandate filed and granted, which didn't expire until January 23rd when the court of appeals received word that this Court had also denied a petition for rehearing. We think that in any case the burden is on a litigant seeking to secure a final judgment and to ensure that the court of appeals jurisdiction over a case has ended.
04-514 +++$+++ 24920 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But that's why I'm quite curious, but I only have experience in one circuit. And -- and I have an impression, but I need to know what is the general practice. I would have thought -- but this is highly impressionistic -- that probably the mandates didn't always issue within 7 days, that it wasn't totally uncommon to have them 10 days or 12, and it was fairly informal. Certainly there were no notice, but maybe other circuits do it differently. It's an area that's obscure to me, and I'd like to know how do people actually handle it. Is it something that is generally within the -- up to the individual court of appeals to provide notice or not or whatever as it wishes? Is it that some delays, 6 months, might be really much too late? Is it -- how does it work in the circuits?
04-514 +++$+++ 24921 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, our understanding is that the Fourth, Fifth, and Sixth Circuits, including the decision below, have all come to the conclusion that the ultimate decision of when to issue the mandate lies within the broad discretion of the court of appeals.
04-514 +++$+++ 24922 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And they don't normally give notice or -- or something like that? They say, it will be here in 7 days, but we'll tell you we've delayed it. They just do it.
04-514 +++$+++ 24923 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Justice Breyer.
04-514 +++$+++ 24924 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I think they might have handled it that way, but I don't know if that's the right way.
04-514 +++$+++ 24925 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that occasionally happens, and -- and there are some cases clearly where there is a formal stay order in place if the court is acting pursuant to (d), which we --
04-514 +++$+++ 24926 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They -- they just do it even when they're delaying it for 18 months in order to reconsider the case? I can understand they're just doing it when -- you know, for clerical or other reasons, it -- it comes out in 10 days or even 2 weeks instead of -- if that's what you're talking about, that I can understand. But here we're talking about a decision for a lengthy delay in order that the court may reconsider the case. I would be astonished if it were regular practice for a court to do something like that without notifying the parties.
04-514 +++$+++ 24927 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, it -- we're not -- it's not regular practice. It does happen, and the reason it happens, as we've set forth in the brief, have nothing to do with this Court's decision to deny review. There are instances, which Justice Kennedy pointed out, in which following the denial of certiorari review, a court of appeals recognizes the clear error of its prior decision. The question in this case is does it have to send out that decision even though it realizes it's in clear error. And the other reason it sometimes happens over a period of time is that reconsideration, much like the initial decision-making process, is a fluid process. Rules 35 and 40 give the court sua sponte the power to engage in reconsideration, and that's exactly the power the court exercised in this case. There are particular reasons in this case, as the panel noted, that there was no unfair surprise to the State in this case, Justice O'Connor. First, the State took Dr. Sultan's deposition in July of 1999. The briefing on that subject was -- was a matter of days following that deposition, and as the panel correctly noted, there was no unfair surprise to the State. The critical, factual issue in this case was as the result of egregious attorney malfeasance not included in the district court record. In addition, the court of appeals --
04-514 +++$+++ 24928 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, to say there's no surprise to the State, that may be the State probably knew as much as the defendant about what was in the record, but certainly it was a surprise to the State to know that the court of appeals, after cert was denied, was pondering all this for that long a time.
04-514 +++$+++ 24929 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, I don't believe that was unfair surprise. The court of appeals called for the record back from the district court after it had otherwise finished with the case and while cert was pending. That was reflected in the docket sheet, and we've cited that in the joint appendix at page 8. There was --
04-514 +++$+++ 24930 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So the counsel should go to the -- see the docket sheet regularly to see whether the court of appeals might be doing something?
04-514 +++$+++ 24931 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, at a minimum, an attorney seeking to secure a final judgment should check the docket sheet to ensure that a mandate has issued in accordance with when the practitioner believes the mandate should have issued. That's exactly what the advisory committee --
04-514 +++$+++ 24932 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you say the State should have known what the court of appeals -- before cert was ever considered because it was on a docket sheet. But the case was over, so far as the parties were concerned, in the court of appeals and in the district court.
04-514 +++$+++ 24933 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, I don't believe so. It's not that one reason. It's a combination of reasons. If you consider the fact that the State was aware it had benefited from a clear factual error with the fact that the docket was returned to the court of appeals reflected on the docket sheet, with the fact that the State itself initiated collateral litigation in the fall of 2003 to preclude the Federal Public Defenders Office from representing Mr. Thompson in the State court competency proceedings. And even their brief, the Wolfel case that they cite says that alone might be a reason a court of appeals might want to hold onto its mandate because it was an issue that was immediately relevant on -- on remand in the State court proceedings.
04-514 +++$+++ 24934 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What I don't understand is how your argument fits in with -- with the rule that you can't recall the mandate. I mean, you have the same horrific situation. My God, we made a mistake. And we've held you can't recall the mandate unless these very high standards are met. Now, are we going to hang on that technical distinction between not issuing the mandate forever and ever and recalling the mandate? The court -- a court has inherent power to recall a mandate, but we said you will not do it unless these very serious obstacles are -- are eliminated. And it seems to me, just as a court does have power to extend the time for issuance of the mandate, it makes sense to say the same thing. You shouldn't do it unless these very serious obstacles are eliminated.
04-514 +++$+++ 24935 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, I don't believe it's a technical difference. This Court has always drawn a sharp distinction between a court's ability to grab back a case from another court after that case has passed beyond its authority to -- as opposed to reconsidering it before ever relinquishing jurisdiction over a case.
04-514 +++$+++ 24936 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but they did grab it back from us. I mean, if what you say is true, we should deny cert in all cases where the mandate hasn't issued or where the only stay for the mandate is pending disposition of -- of cert. We should -- we should put that in our rules. They did snatch it back from us, didn't they? What if we had granted cert?
04-514 +++$+++ 24937 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, I don't think that even the State's view would affect this Court's doctrine about what happens to the mandate if the Court grants cert because they're only talking here about cases in which cert is denied. The denial of cert is not a final decision on the merits, and there are reasons, as we've cited in the brief, for reconsideration sometimes continued after that.
04-514 +++$+++ 24938 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What if we had granted cert? You -- you say they then could not -- what -- what would happen then?
04-514 +++$+++ 24939 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it would depend on whether the mandate was stayed by the court of appeals. If -- if -- I think it's pretty --
04-514 +++$+++ 24940 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It wasn't stayed. It just wasn't issued.
04-514 +++$+++ 24941 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the mandate hadn't been issued, then I think no matter how the Court decides this case, that depending on the circumstances, the court of appeals might be able to alert this Court to a -- a change in the facts that might lead this Court to dismiss the petition as improvidently granted. These are not things that happen all the time. They are things that sometimes happened. And I did want to get back to the final reason I think that the State was not the victim of unfair surprise in this case, and that is there was a Federal court stay of execution in this case. The State was perfectly well aware of the importance of securing a final judgment in the court of appeals before returning to State court. And as this Court held in Calderon, this Court rejected the State's view that a Federal habeas appeal is final when cert is denied. That was the view of the State of California in that case. This Court instead specifically tied the State's interest in finality to issuance of the appellate court mandate. That's consistent with the unbroken history, we think, of drawing a sharp distinction between the moment at which the court of appeals relinquishes jurisdiction over a case and permitting the court to correct errors before then. In fact, this Court also in Calderon specifically noted that it was not a case where the mandate had been stayed pursuant to a (d)(1) motion. There is no reason to distinguish a case involving the non-issuance of a mandate under rule 41(b) from a case involving a stay of the mandate under rule (d)(1). Those are both circumstances in which the court of appeals still has the case, and if the court of appeals still has the case and recognizes a clear error in its prior decision or wishes to apply a new precedent to its decision or discovers that new evidence bears on a question, it has wide discretion to reconsider that judgment before relinquishing jurisdiction over the case.
04-514 +++$+++ 24942 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What if the court of appeals were talking about a point of law and the court of appeals issued an opinion saying we agree with three circuits and disagree with four others? The losing party brings it here and we deny certiorari. It goes back. And then one of the judges on the panel says, gee, I think we should have gone with the other circuits. Can they do that at that point?
04-514 +++$+++ 24943 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, we're not saying that this power is plenary. It is an abuse of discretion standard. There would have to be a reason for doing so. If the court sua sponte decided it had reached the wrong result and wished to reconsider it, I don't think there's anything in rule 41(b) that would forbid it. That does occasionally happen in en banc cases, and those are salutary appellate practices. If, for an example, there's a national security case or some other case and the court of appeals resolves it and denies an en banc petition without prejudice, thinking that it's an important enough case that it should come immediately to this Court, there's absolutely nothing wrong with the court of appeals reconsidering en banc the decision if this Court denies review. Those are the kinds of circumstances that -- that happen that are good appellate practices --
04-514 +++$+++ 24944 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's an intervening circumstance. It's not a single judge changing his mind.
04-514 +++$+++ 24945 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true, Mr. Chief Justice, but -- but we think that the fact that this is a single judge changing his mind is exactly why there is no abuse and why this isn't a case like Calderon where the full court stepped in 2 days before the execution. This is a case where the same three judges who denied all habeas relief and denied rehearing came back later and said, you know what? We made a serious mistake. Mr. Thompson deserves an evidentiary hearing to test the reliability of his death sentence. Those are not circumstances unlike recall of the mandate by a full court of appeals --
04-514 +++$+++ 24946 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, we might address the -- the issue of whether this is that extraordinary. Number one, the court of appeals did have reference to this deposition in the petition for rehearing that was filed with it. Number two, the -- the testimony of -- of the psychiatrist bears on the issue but the -- there was a hearing on that point and another psychiatrist disagreed.
04-514 +++$+++ 24947 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, I don't think that's a reason that it is an abuse of discretion to fix that error. The State makes a -- a lot of an issue in their reply brief of a fact that the court of appeals should have gotten this right the first time. That is exactly why we have reconsideration. That is a quintessential illustration of why reconsideration is a good idea. The court should have gotten something right the first time, didn't, recognizes its error, and while it still has jurisdiction over the case, fixes that error. I think far from showing it's an abuse of discretion
04-514 +++$+++ 24948 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but let's -- let's assume for the moment -- you may disagree. Let's assume for the moment that the Calderon standard applies. There has to be an extraordinary showing. And the State has made an argument here that this isn't that extraordinary. We see these cases all the time.
04-514 +++$+++ 24949 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, I think that the Calderon standard should not be applied for several reasons. First, that this is a -- a challenge to a rule of general application, rule 41. There is no explanation in the State's brief, and indeed their amicus concedes that -- that our reading of rule 41(b) is consistent with AEDPA. It is basically -- reconsideration is permitted by Federal law, and the only question is whether the State's interest in finality becomes somehow more significant the moment this Court denies certiorari.
04-514 +++$+++ 24950 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So is recall permitted. I mean, courts have inherent right to recall too. I mean, the same --
04-514 +++$+++ 24951 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, that's --
04-514 +++$+++ 24952 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the same situation existed in -- in Calderon.
04-514 +++$+++ 24953 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, I think it's a little different only because in Calderon it was only an inherent power question, and this Court read the exercise of that inherent power in light of AEDPA. This case involves a rule of general application that authorizes a practice. And the -- the proper standard of review for -- for that practice is the abuse of discretion standard.
04-514 +++$+++ 24954 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why wouldn't -- but why wouldn't that be read in light of AEDPA as well? I mean, whether it's a common law rule or a rule that -- that's written down, why equally shouldn't they be read in light of AEDPA?
04-514 +++$+++ 24955 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The abuse of discretion standard absolutely would vary depending on the facts and circumstances of a case. And if it appeared that a particular exercise of rule 41(b) power was contrary to AEDPA, it would surely be an abuse of the court's discretion.
04-514 +++$+++ 24956 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Of course, isn't it also true that in Calderon the Court didn't merely hold that it was an abuse of discretion, they held it was a grave abuse of discretion, but even -- even more serious in that case?
04-514 +++$+++ 24957 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Justice Stevens, and -- and the Court's opinion suggests that even if it hadn't applied the miscarriage of justice standard, it would have had grave doubts about the exercise of that power precisely because it involved the extraordinary circumstance of reaching out and taking the case back from the State court system. The -- the fact that the Federal stay of execution was in place I think is especially important to -- in addressing the State's argument, that there was nothing preventing the State from going back and --
04-514 +++$+++ 24958 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, of course, this court -- this -- in this case the State court thought it was in the system. It -- it set an execution date.
04-514 +++$+++ 24959 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, it did set an execution date but it was not informed either that the mandate hadn't issued or that there was a Federal court stay in place. In a decision in which both of those two facts were brought to its attention, the Alley case, which we cite in the red brief, the Tennessee Supreme Court refused to set an execution date, ruling that it was premature. And that's consistent with 28 U.S.C., section 2251, which says that if there's a Federal court stay of execution in place, any execution date set by the State court is null and void.
04-514 +++$+++ 24960 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What was the -- what court had granted the stay?
04-514 +++$+++ 24961 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The district court on February 17th of 2000 had -- had granted the stay.
04-514 +++$+++ 24962 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it remained in effect all that time?
04-514 +++$+++ 24963 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It remained in effect. The -- the Fifth Circuit has come to that conclusion that -- that if -- unless the court of appeals takes a contrary action or this Court takes a contrary action vacating the stay, that stay remains in place until the case is out of the Federal court system. Because this case never became final, as the advisory committee notes made clear -- and we think that the cases that we've cited in the brief are largely undisputed on this point -- a court of appeals decision is not final until it issues its mandate. Even the State in the blue brief concedes that's true. And so the question in this case really is, if you still have jurisdiction over a case, under what circumstances can you correct an error? And I think the miscarriage of justice standard is just way too harsh of a test under the circumstances because this case is a perfect illustration. There are overwhelmingly persuasive reasons for the court of appeals to have fixed its mistake in this case.
04-514 +++$+++ 24964 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, we don't -- we don't have to be that harsh. We can -- I don't think that's the question. I think the question is under what circumstances can you correct the error without having formally acted to extend the time for issuance of the mandate. I think one can draw a distinction between the court just sitting there and doing nothing for a year and a half and -- and then, you know, during which it's reconsidering the case without notice to anybody, and a situation in which a court takes formal action. We're extending the time. We could have a much lower standard for the latter than -- than for the former.
04-514 +++$+++ 24965 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, that's true, but that imposes a burden under rule 41(b) that simply does not exist in the text of the rule. The rule does not say by order. Previous versions of the rule did. Other rules in the Federal Rules of Appellate Procedure do, and to graft that onto it, despite the absence of that language and an understanding that that's how courts given the ministerial function of -- of issuing mandates do their practice would be unfair.
04-514 +++$+++ 24966 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, this is -- it's an abuse of discretion standard, and -- and it is certainly reasonable to apply one standard for abuse of discretion where the court has entered an order notifying all parties that it's reconsidering the case and a different standard when it hasn't done that. I don't -- I don't think it has to be spelled out in the rule.
04-514 +++$+++ 24967 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Scalia, I think that the rule does permit this practice, and if you look at the history of the rule, it makes it even more clear. The -- the advisory committee rejected a rule, akin to what the State is arguing today, that a mandate should be effective when it should have issued. And the reason they denied that rule was because you can't tell from looking at the docket whether the reason is a clerical error or the act of a judge delaying issuance in the mandate. That alone makes clear that the committee had in mind circumstances in which judges would delay issuing their mandates without issuing formal orders to that effect. Numerous courts of appeals have come to that conclusion, and we think that's entirely consistent with the rules, in addition to the reasons I -- I stated earlier, that I think in this case particularly, there were reasons that the State was aware of the fact that the court was engaged in sua sponte reconsideration of its decision. If there are no further questions.
04-514 +++$+++ 24968 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Shors.
04-514 +++$+++ 24969 +++$+++ TRUE +++$+++ MR. SHORS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice.
04-514 +++$+++ 24970 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Smith.
04-514 +++$+++ 24972 +++$+++ FALSE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Just briefly responding to the question of the stay of execution under section 2251, there was a stay of execution extended by the district court pending the disposition of appeal -- of the appeal, but appeals are disposed of by judgments, and that judgment was entered in January of 2003. The State had a judgment which was final. The court of appeals denied rehearing both by the panel and en banc. At that point, the State, particularly after this Court denied cert, was entitled to rely on the finality of that judgment. The State did not need the mandate in order to proceed. A mandate simply directs the district court what to do next. It was not necessary. It is not -- it is completely independent and -- and separate from the disposition of the case on the merits.
04-514 +++$+++ 24973 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did -- did the stay remain in effect in the district court, in your view?
04-514 +++$+++ 24974 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The stay of execution?
04-514 +++$+++ 24975 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. Respondent represents that the stay of execution was entered in the district court and it stayed in effect.
04-514 +++$+++ 24976 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The stay of --
04-514 +++$+++ 24977 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ At what point in your view did that stay become dissolved?
04-514 +++$+++ 24978 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The stay of execution dissolved upon the disposition of the appeal. The stay was pending the appeal. The appeal in our view was disposed of upon the affirmance of the denial of rehearing. That judgment was final when entered. Finality was suspended only during the timely filed petition for rehearing. So once the court of appeals declined to exercise its error-correcting authority to -- to rehear a case -- rehear the case either en banc or by panel --
04-514 +++$+++ 24979 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I know that's your position, but has any judge so ruled in this case?
04-514 +++$+++ 24980 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we have cited two cases on page 13 of -- of our reply brief.
04-514 +++$+++ 24981 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You may be right. In this case did any -- either the court of appeals or the district court terminate the stay?
04-514 +++$+++ 24982 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. There was no formal dissolution of the stay. In our view it dissolved as an -- by operation of law. Thank you, Your Honor.
04-514 +++$+++ 24983 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Ms. Smith. The case is submitted.
04-52 +++$+++ 24987 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Rice v. Collins. General Lockyer.
04-52 +++$+++ 24989 +++$+++ FALSE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: This Court has repeatedly communicated an understanding of the appropriate deference owed to State court fact finding in habeas review under 28 U.S.C., section 2254. Here, we don't have a simple case of the Ninth Circuit applying the proper standard of deference, but getting the wrong result. The problem is the Ninth Circuit doesn't get the standard. Although --
04-52 +++$+++ 24990 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Just at the -- at the outset -- and I'm -- I'm not sure you're prepared for this, but the joint appendix, volume 2, is under seal, right?
04-52 +++$+++ 24991 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-52 +++$+++ 24992 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In the course of the argument, I think we'd be very interested in knowing about the colloquy that the trial judge had with the attorneys, and if it's under seal, it's a little bit awkward to do that. Is there any reason that it has to be kept under seal?
04-52 +++$+++ 24993 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ None -- none at all, Justice Kennedy. I believe we provided the --
04-52 +++$+++ 24994 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I take it --
04-52 +++$+++ 24995 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- appendix 2 --
04-52 +++$+++ 24996 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I take it that the -- the names of the jurors we don't know because they're given numbers.
04-52 +++$+++ 24997 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-52 +++$+++ 24998 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So far as you know, the counsel for the respondent would also have no objection?
04-52 +++$+++ 24999 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Neither of us have any objection, and it's been quoted extensively --
04-52 +++$+++ 25000 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, it was then quoted extensively in the Ninth Circuit I thought.
04-52 +++$+++ 25001 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In -- in the briefs as well.
04-52 +++$+++ 25002 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you.
04-52 +++$+++ 25003 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Kennedy -- Justice Kennedy. In this instance, the Ninth Circuit professes fealty to AEDPA deference, but it seems simply too easy, having sensed a constitutional injury, to become willing to attribute error to the State court and to substitute its own factual inferences for those of the trial judge. The way the Court decides this case can provide further instruction to habeas courts to help them avoid the Ninth Circuit error. I'd suggest at least four instructions that might be considered. First, confirming that the objective reasonableness test, that inquiry under (d)(2), is like that currently under (d)(1). That is, the factual inquiry, like that under the legal inquiry, more deferential than review for clear error. Second, since it seems logical that State fact finding should be entitled to equal, if not greater, respect than that now accorded State court resolution of legal issues under (d)(1), we've argued for adoption of the Jackson v. Virginia kind of standard as consistent with the letter and spirit of AEDPA, meaning that witness credibility determinations rarely may be overturned, and that all of the evidence must be reviewed in the light most favorable to the factfinder. Third, although Miller-El v. Dretke represented an extraordinarily egregious and I personally think undeniable violation of Batson, some might react to a whiff of a little smoke as a Miller-El fire. Proper resolution of this case can make it clear that Miller-El v. Dretke dealt with a outlier and that the traditional line of this Court's habeas cases, restricting Federal courts from second-guessing a State judge's credibility calls, retain their vitality. Finally and specifically responding to Mr. Collins' argument that this case, it seems, is an opportunity to confirm the well-established presumption of correctness for State court fact finding under section 2254(e)(1), that it remains available in all habeas cases. Collins' view that the traditional presumption now applies only in the rare case of Federal evidentiary hearings would eviscerate the traditional presumption. In my office --
04-52 +++$+++ 25004 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it is -- it is a little unusual to have under your view two different sections, both addressed to the question of the appropriate standard of review in a particular type of proceeding. They seem either redundant or overlapping. The theory on the other side at least distinguishes them and argues that they apply in different circumstances.
04-52 +++$+++ 25005 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, Mr. Chief Justice. Our view is that the (e)(1) test really focuses on specific facts that have been found in State court. The (d)(2) focus is on the decision, which presumably would be a bundle of multiple facts, the decision of the court and whether it was objectively unreasonable. And to limit the (e)(1) presumption not only, I think, being contrary to congressional intention when AEDPA reforms were adopted, and your cases that have applied both (e)(1) and (d)(2) as separate, independent tests -- in my office, there are 320 attorneys that do Federal habeas work, 120,000 hours of lawyering. If you take out the capital cases, the non-capital Federal habeas claims, only 2 or 3 percent ever go to a Federal evidentiary hearing. So the result of reading that (e)(1) without the presumption in the cold record case means basically the State loses the presumption for almost every habeas claim that we look at. So it would seem to not be also supported by the statute's clear terms. There's no limitation written into (e)(1) that it -- it's -- doesn't apply across the board to all habeas claims. The --
04-52 +++$+++ 25006 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about the contention in the particular proceeding that the district court -- or the State fact finder did not, in fact, make a determination, but simply gave the benefit of the doubt to the prosecutor?
04-52 +++$+++ 25007 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, I -- I think that reading the transcript will show that the judge, hearing the Batson motion, asking counsel to explain the reasons for her strikes, allowing defense counsel to comment and explain, and then the ruling of the judge seems to be a general one, both contemplating both demeanor and youthfulness, and benefit of the doubt may refer back to the fact that there's a dispute about the challenged juror and whether she turned aside, rolled her eyes in a dismissive and disrespectful way. And the judge says, well, I didn't see that behavior, but I'll give you the benefit of the doubt. But I think the ruling is a general one that subsumes both claims, youthfulness and demeanor.
04-52 +++$+++ 25008 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I thought youthfulness --
04-52 +++$+++ 25009 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I -- I noticed the defense attorney, respondent here, did not comment in any way on the -- the demeanor of the -- of witness 16, which means either the -- he -- he saw it and said nothing or he -- he didn't see it at all. We don't know.
04-52 +++$+++ 25010 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, that's correct. There was no comment.
04-52 +++$+++ 25011 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what is the obligation that we impose on the prosecution in this case to give a coherent explanation of why there -- the juror was excused? That step has proceeded. We're at that step in Batson where an explanation has to be given. What -- what have we said about how coherent and complete that explanation has to be?
04-52 +++$+++ 25012 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-52 +++$+++ 25013 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Here, it seems that the prosecutor was somewhat caught off guard or -- or certainly was not extremely clear.
04-52 +++$+++ 25014 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we are in the middle of a -- a trial, of course, and it happens quickly and, as the Court has suggested, often peremptory --
04-52 +++$+++ 25015 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I'm not so sure quickly. They gave notice that there'd be a Batson hearing. She should have known what's going on.
04-52 +++$+++ 25016 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, sir. However, it was just a short time later in the day, Justice Kennedy. There was a break to dismiss the jury and then come back to the Batson claim. But the peremptories, as the Court has frequently said, are intuitive, often inarticulable. In this case, I think the --
04-52 +++$+++ 25017 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the point is once there's a Batson challenge, it has to be articulated.
04-52 +++$+++ 25018 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that happens. That is, as soon as the prosecutor is asked to defend her challenge, she does, and she talks about youthfulness. She says the young person doesn't have ties in the community, doesn't have a stake in the community, is unmarried, perhaps has a greater tolerance for drug crime with a small amount. This is a three-strikes case. It would be a natural worry, I think, for a district attorney to think that a third strike, even though one and two were armed robbery and rape -- that a third strike that's a possession of a small amount of drugs, you might need to worry about a juror's tolerance or worrying about that severity of sentence.
04-52 +++$+++ 25019 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- but isn't -- isn't the difficulty with your analysis there, General, that, yes, she started out by -- by talking about youthfulness. As I understand it, she started out talking about youthfulness and the -- and the demeanor, the rolling of the eyes.
04-52 +++$+++ 25020 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-52 +++$+++ 25021 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Sort of at the second stage, again she spoke of youthfulness. Then at a third stage, she said, well, it's a combination of -- of age, gender, and inexperience. Then she realized she was in trouble, and she said, well, I really didn't mean gender because I -- I'd be in constitutional hot water there. Then she said, well, I really don't mean age because there are other young people on the jury, and I'm -- I'm not challenging them. So that the only thing that was left was possibly that element of age which refers to ties to the community. And at the end of this long colloquy, in which she has gone back and forth and back and forth and -- and jettisoned some of her reasons, the trial judge says, well, I didn't see the eye-rolling, and I guess I'll give the benefit of the doubt to counsel. I don't know whether the judge is talking about the benefit of the doubt on eye-rolling or the benefit of the doubt on -- on ties to the community. Assuming it's ties to the community, that has nothing to do, I suppose, with -- with the -- the fear that a young person is going to be too sympathetic to a defendant who's up for the third time with a small amount of drugs. And at the end of the day, it seems to me we have what Justice Kennedy's question in the first place suggested. We simply have an incoherent colloquy and a response to the judge which simply does not tell you what the judge is ruling on or the basis for the ruling. All we know is that ultimately he's saying I'm rejecting the Batson challenge. That's the problem with -- with deference in this case. What -- what is your response to that?
04-52 +++$+++ 25022 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, thank you, Justice Souter. First, I'd point to the language that the judge provided, which was in regard to juror 16, the only one that is at issue, the court did not observe the demeanor. However, 16 was a youthful person, as was 6, and then prepared to give the district attorney the benefit of the doubt.
04-52 +++$+++ 25023 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but the district attorney has -- I mean, the -- the point here is we're judging the district attorney's responses, not the judge's responses.
04-52 +++$+++ 25024 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-52 +++$+++ 25025 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What we want to know is what the judge found and ruled upon. The district attorney, as I understand it, has withdrawn the general claim that youthfulness is a problem, and the only claim that might have been -- might -- probably was comprehended under youth that -- that remains is the claim of no community ties. And I find it very difficult to tell from the judge's ruling whether the judge is saying, yes, I think there's a fair showing that there are no community ties and that's certainly a race-neutral reason. I don't know what the judge was -- was --
04-52 +++$+++ 25026 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If I may, Justice Souter. The DA never withdrew the youthful claim.
04-52 +++$+++ 25027 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, didn't the DA say, look, youth alone doesn't -- doesn't explain my reasons because there are other young people on the jury that -- that we're not challenging, and -- and I don't want to suggest that all young people should be disqualified?
04-52 +++$+++ 25028 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-52 +++$+++ 25029 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ General, does -- does the judge have to find what the reason for the strike was, or does the judge have to find what the reason for the strike wasn't?
04-52 +++$+++ 25030 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The judge has to find that it was not a racially discriminatory strike.
04-52 +++$+++ 25031 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if there are several allegations and -- and each of them is somewhat doubtful but, on balance, he says, I give the benefit of the -- of the doubt to the -- to the district attorney, it's his indication that, as a matter of fact, he finds that the reason wasn't race.
04-52 +++$+++ 25032 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, your direct --
04-52 +++$+++ 25033 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask this question, General?
04-52 +++$+++ 25034 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-52 +++$+++ 25035 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There are really two kinds of Batson problems as I see it. There are some cases where the prosecutor is -- just is deliberately keeping African Americans off the jury, and there -- there's no question there's a violation there. But I'm wondering if there isn't another category where persons are unconscious of their own subconscious bias and not realizing that they themselves have an unconscious fear that perhaps an African American might not be a sympathetic juror. Would that kind of failure to really identify the problem within the prosecutor's own conception of the case -- would that be a Batson violation in your view?
04-52 +++$+++ 25036 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, probably not, because the requirement is that the strike be intentionally done. That is, there's an intentionality. If it's unconscious, as you suggest, Justice Stevens, I -- I would think that wouldn't qualify.
04-52 +++$+++ 25037 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If, for example, the judge saw that over a period of time, a particular prosecutor had hunches about jurors over and over again and they just happened to be black most of the time. That would not justify a -- a Batson challenge.
04-52 +++$+++ 25038 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there might be a pattern over time.
04-52 +++$+++ 25039 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- but she's totally convinced of the good faith of the prosecutor. And I'm not suggesting bad faith.
04-52 +++$+++ 25040 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-52 +++$+++ 25041 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But just realizes this person has an unconscious bias that shows up in the -- in the pattern of challenges. Would that be a justified challenge?
04-52 +++$+++ 25042 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You might be able to deduce intent from -- infer it from a variety of challenges.
04-52 +++$+++ 25043 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. You have to accept his hypothetical as he gave it. Assuming that the attorney, the district attorney, was in good faith.
04-52 +++$+++ 25044 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
04-52 +++$+++ 25045 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In good faith?
04-52 +++$+++ 25046 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. Assuming that the -- the attorney did not think that he or she was striking the juror because of the juror's race.
04-52 +++$+++ 25047 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens and Scalia, I would rely on the trial judge to make a determination of the intention of the district attorney --
04-52 +++$+++ 25048 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if the trial judge determined --
04-52 +++$+++ 25049 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the question is would he --
04-52 +++$+++ 25050 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- based -- based on the history of several trials and so forth, that this prosecutor unconsciously had this hunch with respect to black jurors but not others, that would be a sufficient basis for a challenge.
04-52 +++$+++ 25051 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd be inclined to say yes.
04-52 +++$+++ 25052 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there is no such -- that -- that's very far from this case, General Lockyer.
04-52 +++$+++ 25053 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-52 +++$+++ 25054 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I did -- I did have one --
04-52 +++$+++ 25055 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That -- that gives a lot of power to district -- to -- to the district judge, doesn't it? I mean, you know, this -- he says this -- this U.S. attorney really doesn't honestly believe that he's biased, but I think, being the great psychologist that I am, that this United States attorney, or whoever, is -- is really biased and -- and he's -- I -- you really --
04-52 +++$+++ 25056 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia --
04-52 +++$+++ 25057 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you really want the system to run that way?
04-52 +++$+++ 25058 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia, I hope to brief that one some day, but --
04-52 +++$+++ 25059 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can we -- can we go back --
04-52 +++$+++ 25060 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but -- but it's a good -- it's a good question even though I -- I don't think it's what's happening in this instance. And I mostly would say we rely on the trial judge who's there --
04-52 +++$+++ 25061 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Except in this very case, one gets the impression that the prosecutor was pretty confused, but maybe she was acting in good faith.
04-52 +++$+++ 25062 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I believe that's correct from the record.
04-52 +++$+++ 25063 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ She was certainly -- she was certainly wrong on the law. When she -- when the gender question came up, she said, well, that's not a suspect category, and she seemed to be -- her notion was that it was okay to aim for a jury that had an equal number of men and women. And it was -- she seemed to be thinking the same thing with regard to age too. I agree with you she didn't withdraw it, but was -- the reasonable explanation was we don't want too many young people here. So I'm going to allow some, but I want older people to dominate. But the gender -- she had to be told by the judge Batson applies to gender. That -- that seemed -- that seemed strange to me that -- that 2 years after, she would not know.
04-52 +++$+++ 25064 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, I think that perhaps an explanation -- and, again, if the trial judge thought it was reasonable -- is there some compelling reason to read it a different way years later on appeal after the California Court of Appeal, a Federal magistrate, and a Federal district judge have agreed with the trial judge's perspectives. But it could be that she is quoting, as you'll see in the transcript, California law that had talked about jury balances. It's good to have young and old. It's good to have different races. I agree. You're absolutely right. J.E.B. v. Alabama had occurred a couple of years before, and the judge does say, I don't see, Ms. Satriano, that you are seeking to justify excusing people of one ethnicity based on gender. So he seemed to at least be saying, you started with youth. Everything you said about youth, ties in the community, tolerance for drug use, unmarried, which might be distinctions with other young people -- those -- do you have anything else to say? And I -- I suspect she felt like compelled to come up with some further explanation.
04-52 +++$+++ 25065 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what is the -- where -- where is the place in what the judge -- when did this eye-rolling take place? I can't figure it out.
04-52 +++$+++ 25066 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay. Yes. During the judicial voir dire.
04-52 +++$+++ 25067 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, I have that in front of me.
04-52 +++$+++ 25068 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
04-52 +++$+++ 25069 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What was the statement that the judge made in respect to which the juror is supposed to have rolled her eyes?
04-52 +++$+++ 25070 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The district attorney simply says with one of the questions to which you -- the prospective --
04-52 +++$+++ 25071 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which question?
04-52 +++$+++ 25072 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's unclear.
04-52 +++$+++ 25073 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So the reason I can't find it out is none of us know.
04-52 +++$+++ 25074 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, you're right. I mean, it's one where -- it doesn't say in the record eye-rolling.
04-52 +++$+++ 25075 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it actually says it wasn't a question. It was a statement, and that's why I can't figure it out.
04-52 +++$+++ 25076 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it seems to be where the juror said yes in response to the voir dire, and then --
04-52 +++$+++ 25077 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which was a question you said --
04-52 +++$+++ 25078 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- turned aside. All we know is yes was said. We don't know what the question was.
04-52 +++$+++ 25079 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I see.
04-52 +++$+++ 25080 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- a point I guess to be made about this confusing transcript -- and of course, I don't know what the file looked like with respect to Miller-El, but this is it. Obviously, there's not a lot to go on, and I think it suggests how vital it is to rely on the trial court judge to make some credibility determination. He's there and sees the district attorney and tries to, after making appropriate inquiries, say that he accepts her non-racial reasons. Counsel for respondent does a lot to compare to Miller-El and so perhaps it's worth just distinguishing briefly. There we have 10 of 11 African American jurors struck. We have the lawyers doing the questioning, trick questions, loaded questions, complicated questions. We have the external evidence of the Dallas manual recommending discriminatory strikes. We have the cards with race written on them. Here, we have a very brief, quick proceeding. The judge is asking the questions and really resisting lawyers' attempts to add to that, to get more information so you can make a valid assessment of the juror that's before you. And so in this instance, obviously, relying on intuition, trial experience, she exercises the two peremptory challenges, one of which was withdrawn on appeal and not pursued, the other with respect to the young person, the demeanor, and youthfulness are the grounds given.
04-52 +++$+++ 25081 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask just a -- kind of a background question? I noticed the judge pointed out after ruling that he was under -- he -- I can't remember if it was a he or a she, but was under an obligation to report its reasons for granting Wheeler motion to the State bar.
04-52 +++$+++ 25082 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-52 +++$+++ 25083 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does that -- did that requirement apply after the Ninth Circuit decision? Is there a requirement that the -- the lawyer be investigated for possible discipline?
04-52 +++$+++ 25084 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We tried to research it, Justice Stevens, and we believe that it was a -- a State court rule adopted subsequent to Wheeler. And that -- of course, unlike the way in which it is characterized in respondent's briefs, it wasn't a warning to her, the district attorney, that is. It was a general statement. If there's a Batson claim, I'm obligated to report.
04-52 +++$+++ 25085 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I -- I read it as saying, and therefore I'm going to be careful about finding that there's been a Batson violation. And I wonder if that's consistent with what we want trial judges to do when they're hearing Batson challenges.
04-52 +++$+++ 25086 +++$+++ TRUE +++$+++ MR. LOCKYEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, I frankly didn't read it that way. It just seemed to be he was stating the fact, that it would be an obligation to report. Clearly, it has some impact on how people feel about the judicial system and the particular lawyer's reputation if the judge were to affirm the motion. But I -- I would expect the judge was doing his job and performing his duties correctly.
04-52 +++$+++ 25087 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If you have a minute, you might -- I don't know if you -- if this is very useful. But I've taken this point of view that -- that there's no way to get to the bottom of the use of stereotypes in cases like this, a perfect example. And therefore, the only thing to do, consistent with the Constitution, is no peremptories.
04-52 +++$+++ 25088 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I know that's your view, Justice Breyer.
04-52 +++$+++ 25089 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You have 30 seconds. You want to say how irresponsible that is, right?
04-52 +++$+++ 25090 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I prefer to keep the tradition and allow the peremptory challenges. Thank you. I'll reserve time, if I may.
04-52 +++$+++ 25091 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General. Mr. Drozdowski, we'll hear now from you.
04-52 +++$+++ 25093 +++$+++ FALSE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The Ninth Circuit properly held that the State appellate court decision represented an unreasonable determination of facts because the prosecutor did not give a single persuasive reason for striking juror 16. The circuit also rightly held that the --
04-52 +++$+++ 25094 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why isn't the rolling of the eyes a persuasive reason?
04-52 +++$+++ 25095 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, here the rolling of the eyes, first, is uncorroborated by the trial judge. He says, quite frankly, I did not see it. And in his ruling, he does not credit that rationale.
04-52 +++$+++ 25096 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what -- what should happen if the trial judge doesn't see it and a counsel, who's observant, said, judge, I've got a problem with this juror? I don't know that the trial judge has to -- has to see it, if he believes the counsel.
04-52 +++$+++ 25097 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That could be, but here the trial court's --
04-52 +++$+++ 25098 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We've -- we've all been -- been in court and -- and noticed that sometimes witnesses or jurors or parties or even attorneys will make faces and so forth that's not consistent with -- with proper demeanor in a courtroom.
04-52 +++$+++ 25099 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. But what's significant here is that this was a judge-conducted voir dire where juror 16 would have been facing the judge when giving her answer. So the judge would have been in the best position to see the --
04-52 +++$+++ 25100 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you're --
04-52 +++$+++ 25101 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Maybe the judge is reading. A judge doesn't watch -- watch the witness 100 percent of the time. That's not credible.
04-52 +++$+++ 25102 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As the Court has previously mentioned, what we also have here is there's no -- there's no corroboration in the transcript that juror --
04-52 +++$+++ 25103 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So what is the point? The judge says, I'll give the prosecution the benefit of the doubt. Well, he -- he knows the prosecutor and he believes the prosecutor. I didn't see it, but I'll give him the benefit of the doubt. He told me that's what she did. What's -- I mean, I really don't see why that isn't, given the present law, sufficient.
04-52 +++$+++ 25104 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, here, the trial court's ruling -- he says, I did not see the demeanor complained of. However, juror 16 is youthful, as are other jurors. I'm prepared to give the district attorney the benefit of the doubt. So I think the ruling here, if there is, indeed, a finding of no discrimination, would be limited to the youth rationale clearly by --
04-52 +++$+++ 25105 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why?
04-52 +++$+++ 25106 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You mean benefit of the doubt just refers to youth. I -- I read that as referring to the whole story.
04-52 +++$+++ 25107 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-52 +++$+++ 25108 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, I -- it's pretty hard to read that as saying, I'll give him the benefit of the doubt in respect to the youth. It sounds as if I'll give him the benefit of the doubt in respect to the reasons he gave for challenging her. There are two other African American jurors on the jury. She is useful -- youthful. He -- she saw him -- he saw her rolling her eyes when -- what do you think about the drugs or some other relevant question. And he says, I'll give him the benefit of the doubt. I mean, I don't see how to read that in a way that -- that comes out the way you want it to come out.
04-52 +++$+++ 25109 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well -- well, even --
04-52 +++$+++ 25110 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So tell me.
04-52 +++$+++ 25111 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. Even if the Court concludes that the trial judge did credit the demeanor rationale, it's still a wholly unpersuasive reason to give in light of everything else the prosecutor did here. The demeanor rationale wasn't the sole reason given. It comes as part of a litany of reasons that are all either unconstitutional, the gender rationale, or contradicted or unsupported by the record. And there was some discussion earlier about this. Miller-El makes clear that the district attorney must give the real reason for the strike, not just any rational basis the prosecutor can think up. And when we look at the transcript of the Batson hearing here, we see a prosecutor scrambling to think of anything she --
04-52 +++$+++ 25112 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, isn't this just another way of saying you don't believe the proffered justification? In other words, the -- the trial judge made a credibility determination that that was the reason, the person rolled her eyes, and you're saying, in light of the other explanations, you think the prosecutor is just making that up.
04-52 +++$+++ 25113 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think two things. I think, one, the reasonable conclusion is the prosecutor is making it up, but even if the Court -- the Court doesn't need to accept that to still come to the conclusion and say the demeanor rationale is still not the reason for the strike. She can't say the reason here. She comes up with six different reasons, but they're all either --
04-52 +++$+++ 25114 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you're saying you don't believe it. You think there's a different reason, and the rolling the eyes is not the real reason. And we have a factual determination that the judge believes that that's the reason or a reason. And under the -- the statute, at least that -- that's -- that either has to be shown to be unreasonable or, under the State's reason, that's presumed to be correct, and you have to show it by clear and convincing evidence.
04-52 +++$+++ 25115 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And the Ninth Circuit properly found that the conclusion was both unreasonable and rebutted by clear and convincing evidence, and it's because none of these reasons, when we look at the totality -- what I'm trying to say is --
04-52 +++$+++ 25116 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What was the -- on the -- on the eye-roll, which I thought also the -- the prosecutor said that she turned her head. So it may be that she was out of the vision of the -- the judge even if he had been looking. I don't see that you have any evidence to rebut it. You said, well, it was rebutted by clear and convincing evidence. There was no evidence. There was no evidentiary hearing.
04-52 +++$+++ 25117 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we cited a case on page 24 in our brief, a Third Circuit case, Riley, that says a reviewing court's suspicion may be raised by a series of very weak explanations given for the strike.
04-52 +++$+++ 25118 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There -- there's no doubt that the court -- or at least in my mind, that -- that the trial court could have come out the other way. I -- I -- you know, all of the things you say are quite true. The question is whether the trial court had to come out the other way, whether it was just utterly unreasonable for the trial court to come out the way it did. And that -- you know, that's a -- that's a heavy burden. And -- and it is a messy transcript and all of that, but I -- I find it difficult to see how -- how you can establish that -- not only that -- that the trial court could have come out the other way or, indeed, maybe in your judgment, maybe in my judgment, should have come out the other way. But you have to establish that it's unreasonable not to come out the other way. And -- and I find it hard to -- to see how you can do that when you have a transcript that relies, in part, upon the -- you know, the rolling of the eyes and the -- and the trial court says, I'm -- I'm willing to give her the benefit of the doubt that that's the reason she did it.
04-52 +++$+++ 25119 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Miller-El emphasizes that we need to view the prosecutor's behavior cumulatively. And again, when we look at here the -- the prosecutor coming out with one reason after another to try to justify her strikes, consecutive strikes, of the only two black women on this jury, there's just simply no credibility left to give to the demeanor rationale even if one views that it's --
04-52 +++$+++ 25120 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought there was another -- another. Wasn't there another minority woman on the -- in the jury panel?
04-52 +++$+++ 25121 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Juror 20 Collins explains -- Mr. -- trial counsel -- defense counsel, explained at the hearing was a person of color but not African American. So the record shows, I believe, we have one African American on the jury and one other minority.
04-52 +++$+++ 25122 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now -- now, number 19 was excused and was a black person.
04-52 +++$+++ 25123 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-52 +++$+++ 25124 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and a woman. And if that too had been suspicious and challenged, then you might have had a pattern, a pattern of two people, which could have overcome the demeanor testimony -- demeanor claim. But I -- I think on this record that we have to assume that there is nothing wrongful about excusing juror 19 merely because respondent's counsel here -- you did not pursue that. I -- I read the record as -- as telling us that so far as juror 19 is concerned, there was an adequate reason for excusing that juror. At least respondent's counsel -- you have not said that there wasn't.
04-52 +++$+++ 25125 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, on the State appeal, it's true that Collins' attorney dropped the claim specifically as to juror 19. But the reason the prosecutor's strike of juror 19 is relevant is at step three of Batson, this Court has emphasized that the duty of the trial judge to determine purposeful discrimination requires an examination of all the relevant circumstances.
04-52 +++$+++ 25126 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So what is the remedy -- the remedy if we say and hold with you that prosecutors can't give reasons like they gave here? How is a -- what's a prosecutor supposed to do? I mean, the prosecutor might be moved by stereotype. Young African American women -- of course, she tolerates drugs. Well, not quite of course. Well -- well -- well, she rolled her eyes. Well, at least she looked in this direction. Well, I sort of -- maybe I'm seeing eye-rolling here. I mean, we all understand that. But that's why I guess I am where I am. I -- I don't see what the -- I don't see what we're telling prosecutors if we hold in your favor, and I don't see how we deal with the problem if we hold against you.
04-52 +++$+++ 25127 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I think -- I think the record here reinforces Your Honor's view on --
04-52 +++$+++ 25128 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I'm asking for your experience. You have a lot of experience as a defense lawyer. How is this thing supposed to work?
04-52 +++$+++ 25129 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I think if -- if the Court allows to happen what -- what happened here, then I think the message it could be saying to prosecutors, is as long as you can just rifle off a series of -- of reasons for your strike and then the trial court latches onto one of them, taking it out of the context of the plausibility of all the other strikes, then we're going to allow this type of behavior to continue.
04-52 +++$+++ 25130 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This prosecutor presumably appears before this judge on other occasions, and -- and don't you think we -- we can give some weight to the fact that the judge is there, sees the woman, sees what she's saying, and -- and can judge better than we can whether she's making this up or just -- just is -- is somewhat confused, especially since, as -- as I think the General pointed out, we're dealing with a kind of determination that is usually instinctive on the part of trial counsel. There's just something about this, you know, and you move to strike. I'm not sure it springs into your mind, at the time you -- you move to strike, the precise reason. Then somebody asks you later, why was it? Why was it? There was just something about that person I didn't like. I know it wasn't the race. That had nothing to do with it. Now, what was it? And then -- then you have to recreate a -- a rational process that, in fact, never occurred. It was an instinctive process more than a rational one. So I'm -- I'm not particularly upset by -- by seeing counsel flounder about in -- in trying to come up with what the right reason was. I think it's probably pretty hard to figure out.
04-52 +++$+++ 25131 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ First of all, there's nothing in the record to indicate that this prosecutor had appeared many times before this trial judge. Another point is --
04-52 +++$+++ 25132 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, she might in the future, if she's got a job as a prosecutor in this court. So she's certainly going to be concerned with her reputation, her integrity before the court.
04-52 +++$+++ 25133 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, but I guess what I'm trying to say is it's not that the judge said, you know, Ms. Prosecutor, you've appeared before me many times and I'm willing to give you the benefit of the doubt because I know the way you are. We have nothing like that here. Also, as far as it being instinctive, Batson and Miller-El require the prosecutor to give the reasons and stand and fall on the plausibility of those reasons. And -- and here --
04-52 +++$+++ 25134 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm saying that it's hard. That's all. And -- and that you can understand why somebody would flop around because, at the time the strike is made, I'm -- I'm not sure it's always an entirely rational rather than instinctive action.
04-52 +++$+++ 25135 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand, but what's significant here is when she is flopping around, the reason she comes up with -- she says gender. It's patently unconstitutional and discriminatory. We have youth, and then she says, well, it's not that they're younger. Other young people on the jury. It's not that I don't want young people. And she doesn't strike juror 15.
04-52 +++$+++ 25136 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Let me -- let me ask you as a -- as a response to -- to the kind of the incoherent flopping around argument, let me ask you what your position would be if the record were different in the following respect. Let's assume the record is just what it is up until that final paragraph or so in which the judge rules. And instead of doing what he did in this case, the judge says the following two things. He says, number one, I didn't see the eye-rolling, but I accept counsel's representation of fact that the eye-rolling went on and I certainly understand the -- the significance of that. So I'm going to take that as a fact. Number two, even though counsel has withdrawn the -- the sort of the general claim of youth and so on, I understand counsel still to be saying this is a person without any manifest ties to the community and -- and that suggests a certain looseness of responsibility. And based upon the eye-rolling and based upon the lack of ties to the community, I think counsel had a race-neutral basis for the -- for the strike that was made, and for that reason, I'm going to overrule the Batson challenge with respect to number 16. What would your position be?
04-52 +++$+++ 25137 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that -- that would be a -- a tougher case for us because we would have an explicit ruling --
04-52 +++$+++ 25138 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
04-52 +++$+++ 25139 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of what actually happened.
04-52 +++$+++ 25140 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What would your position be?
04-52 +++$+++ 25141 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I still think that in this case, given the entire context and all the other reasons given, including the gender reason, that it would still -- that those demeanor and youth reasons would still not be persuasive looking at the context --
04-52 +++$+++ 25142 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you would say that those two conclusions on the part of the court were unreasonable?
04-52 +++$+++ 25143 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ On -- on this record, yes, given all the other reasons we have given by the prosecutor.
04-52 +++$+++ 25144 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you would say you've established that by clear and convincing evidence?
04-52 +++$+++ 25145 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would because when we go through the comparative juror analysis and look at the record of the whole, we see that the reasons given, for example, on youth are not used for similarly situated white jurors.
04-52 +++$+++ 25146 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but number 6 was a young white -- young white male, I believe, and he was excused on the ground of youth. So it's consistent.
04-52 +++$+++ 25147 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 6 was different in that he was unemployed, in fact, had never been employed, and also he had an uncle who was a recovered alcoholic, and that made him quite different from juror 16.
04-52 +++$+++ 25148 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's wrong with the explanation, as far as youth is concerned, is that she didn't want to across-the-board strike young people, but she just wanted to come up with a jury that had dominantly older people. So that wouldn't mean that she's withdrawing youth. It's just that she's saying it isn't an absolute with me.
04-52 +++$+++ 25149 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think she's also admitting that youth wasn't a reason because she's saying there are other young people on the jury, and the significant question here --
04-52 +++$+++ 25150 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what's -- one -- one point could be I don't want too many young people, so I'm going to exercise some peremptories to make sure that the jury is dominantly older people. What's wrong with that?
04-52 +++$+++ 25151 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What's wrong with that here is the question is why is she using that rationale against the young black juror and not the -- the young white jurors on the panel? How come she's seeking to achieve the balance by striking juror 16?
04-52 +++$+++ 25152 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, she did. Number 6 was white. Right?
04-52 +++$+++ 25153 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-52 +++$+++ 25154 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And youth was a factor there. There may have been other factors, but youth was certainly a factor in that case.
04-52 +++$+++ 25155 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And this one rolled her eyes.
04-52 +++$+++ 25156 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, but when we look at the totality of the reasons, which include looking at the way she treated juror 19, we have the lack of ties in the community --
04-52 +++$+++ 25157 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Juror 19 -- you just said earlier the fact that the one juror's uncle had an alcohol problem was -- was a legitimate factor. Juror 19's daughter had a -- a cocaine problem and this was a cocaine case. Isn't that a perfectly legitimate reason for exercising a peremptory with respect to a juror?
04-52 +++$+++ 25158 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The significance of the treatment of juror 19 is, right out of the box, the prosecutor is coming up with reasons that she says apply to both 16 and 19, the only two black women on the jury. And these are very disparate women, and they're different in age and occupation status, the number of children they have, and people they -- who are close to them who have substance abuse problems. And right out of the box, the prosecutor is saying that both of them are disqualified from jury service because they're both young, when juror 19, in fact, was a retired grandmother.
04-52 +++$+++ 25159 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that -- that was so obviously a slip, and Judge Hall pointed that out in her dissent. Defense counsel too confused -- was confused on the numbers. Obviously, it -- the -- the prosecutor wasn't trying to say a grandmother is going to be excused -- is going to be struck because she's young.
04-52 +++$+++ 25160 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I respectfully disagree that it was a mistake. Her answer -- her response that juror 16 and 19 are both young came immediately in response to the court's request that the prosecutor justify her peremptory strikes of judge 16 -- jurors 16 and 19. And then later on, when the judge said that gender was not going to cut it, the prosecutor said, well, it's not really gender. She backtracked to youth, and she said what is important, their youth is important. And she could only have been referring to 16 and 19 at that point because there was no claim that juror 6 was being excluded because of his gender.
04-52 +++$+++ 25161 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would you say the same thing about the defense counsel confusing jurors 16 and 19 on page 9? The bottom of page 9, it seems to me Ms. -- Ms. Nachman is confusing juror 19 with 16. They're talking about 16 and 6, and then Ms. Nachman ends by talking about juror 19. That seems to me clearly to mean number 16.
04-52 +++$+++ 25162 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm -- I -- I don't think so because on the next page she continues discussing juror 19 at the top of page 10.
04-52 +++$+++ 25163 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I -- I don't think it's a necessary reading.
04-52 +++$+++ 25164 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Maybe I'm -- what -- what is the inference you try to draw from the treatment of juror 19? That the prosecutor wants to -- was striking people on the basis of their race or that she had better reasons for 19 than 16?
04-52 +++$+++ 25165 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no. The conclusion is that she was striking jurors on the basis of the race, that she is using --
04-52 +++$+++ 25166 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And then what do you do with the fact that juror 19's daughter had a cocaine problem and this was a cocaine case? That doesn't seem to be -- that's not a race-based reason. That's seems to me to be a good reason.
04-52 +++$+++ 25167 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. We're not challenging the strike of 19 per se. What we're saying is that the prosecutor's reasons she gave for 19 are important in trying to determine whether she is intentionally discriminating in striking juror 16. And the fact that she is lumping the two jurors together, not treating them as individuals, but treating them, in fact, stereotypically by saying that all -- that three of these reasons apply to both of them, when the record clearly shows that they don't apply to juror 19, it shows -- it shows the discriminatory behavior. The -- the Attorney General said that this case is unlike Miller-El, but I'd just like to emphasize certainly here we have a petitioner who was representing himself pro se and he did not present extra-record evidence of a -- of a history of discrimination. But the case-specific evidence is similar to Miller-El in important respects, and Miller-El requires relief in this case. First -- first of all, three of the reasons given here for the strikes pertain just as well to non-black jurors as to the black jurors, and that's youth, tolerance, and single. Here, as in Miller-El, we have the district attorney scrambling from rationale to rationale and, when called on, one of the reasons shifting to another. And here, the district attorney did not ask questions on grounds later used to justify the strike. Now, clearly here, it's a judge-conducted voir dire, but the attorneys were allowed to ask the judge to ask different questions -- to ask that the judge ask additional questions. And here, at the conclusion of the voir dire of jurors 1 through 17, the -- the prosecutor asked the judge to ask four additional questions. Three of them were to the panel generally and one specifically about juror 8. But the prosecutor never asked that any additional questions be asked of juror 16 before she struck her. If I could turn briefly to the State's Jackson v. Virginia argument, unless there's any additional questions on the Batson claim. The State's claim that (d)(2) and (e)(1) incorporate the Jackson sufficiency of the evidence test is contrary to the plain terms of (d)(2) and (e)(1) and this Court's cases construing those provisions. And the State still hasn't cited a single case prescribing a Jackson type of review, and courts have been construing AEDPA for over 9 years now. That should be the end of the line for the State's argument.
04-52 +++$+++ 25168 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you do with the argument that your reading of the two sections means that (e)(1) would only apply in a very small number of cases, and it's obvious that Congress was trying to tighten the habeas review procedures?
04-52 +++$+++ 25169 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our argument is based on the -- the structure and text of the statute and -- and the fact that the clear and convincing requirement is tied to the presumption of correctness. I'd like to emphasize that the Ninth Circuit in this case did apply both (d)(2) and (e)(1), as this Court did in Miller-El, and found that Collins has satisfied both standards. So I just want to emphasize for the Court, even if it does not agree with us on our construction of (e)(1), that relief is still appropriate in this case.
04-52 +++$+++ 25170 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In -- in a sense, the standards perhaps ought to be reversed. When you hear the evidence, which is what you do under (e)(1), that is when you've determined -- should determine whether it's unreasonable. You should presume that it's correct before you decide whether you're going to hear. So you could argue that they should be --
04-52 +++$+++ 25171 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. I -- I think our argument is based on the fact that we have the presumption of correctness as part of (e), which is the fact development procedure in Federal court. The State's Jackson argument, I'd just like to highlight, is irreconcilable with what this Court said in Miller-El I, and what it did in Miller-El II. In Miller-El I, this Court stated that Federal courts can disagree with State court credibility determinations and, when guided by AEDPA, determine that the conclusion is unreasonable or its factual premise rebutted by clear and convincing evidence. In Miller-El II, this Court disagreed with the State court credibility determination and granted habeas relief even though the significance of some of the habeas petitioner's evidence was open to judgment calls. By contrast, this Court stated in Schlup v. Delo, that the assessment of credibility is generally beyond the scope of review in Jackson. And in the Crenshaw case cited by the State, the Court explained that under Jackson, the test for rejecting evidence as incredible is extraordinarily stringent and is met, for example, only when the testimony given is describing facts that are physically impossible. This Court couldn't have granted relief in Miller-El if it construed (d)(2) or (e)(1) as containing the Jackson test, and the State's approach would effectively bar habeas relief whenever a habeas petitioner challenged a credibility determination.
04-52 +++$+++ 25172 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think that (d)(2) or (e)(1) is the -- is the stricter requirement? I'm really not sure which of the two. Don't you think it -- it might be possible to show, by clear and convincing evidence, that the State court decision was -- factual decision was wrong, but you, nonetheless, do not show that it was unreasonable? In other words, it may well be that (d)(2) is -- is the more severe one.
04-52 +++$+++ 25173 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think they're different standards. (e)(1) is a -- a standard of proof, and (d)(2) is a standard of assessing a prior court's assessment of the facts.
04-52 +++$+++ 25174 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If -- if I might ask. You have no objection to our unsealing the joint appendix, volume 2.
04-52 +++$+++ 25175 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, we don't.
04-52 +++$+++ 25176 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you.
04-52 +++$+++ 25177 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If I could briefly sum up. In Powers v. Ohio, this Court said that the Fourteenth Amendment mandate, that racial discrimination be eliminated from all acts and proceedings of the State, is most compelling in the judicial system. Here, the district attorney struck two of three African American jurors, including both black women, where a black defendant was facing a sentence of 25 years to life in a three-strikes case for possessing .1 grams of cocaine. One of the reasons given by the district attorney is patently unconstitutional: gender. And all the other reasons are either contradicted or unsupported by the record.
04-52 +++$+++ 25178 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you, by any means -- you don't contend, though, the fact that she did rely, in part, on an unconstitutional reason is a sufficient reason for sustaining a Batson type challenge?
04-52 +++$+++ 25179 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In this case, it's very significant that she relied on the unconstitutional reason.
04-52 +++$+++ 25180 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you have not argued that that would be a sufficient reason for setting aside the verdict.
04-52 +++$+++ 25181 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This claim was not raised in State court as a gender challenge as opposed to race, if I'm answering the Court's question.
04-52 +++$+++ 25182 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think it would have had merit if you had made that argument?
04-52 +++$+++ 25183 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, and I think it has merit here because it's -- it's a reason the district attorney admitted that was motivating her strike. It's -- it's patently unconstitutional and it taints every other reason she gave.
04-52 +++$+++ 25184 +++$+++ TRUE +++$+++ JUSTICE THOMAS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, is there anything in the record to alert us to the race of the prosecutor?
04-52 +++$+++ 25185 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is not besides her name.
04-52 +++$+++ 25186 +++$+++ TRUE +++$+++ JUSTICE THOMAS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would it make any difference? There seemed to be some suggestion that there are stereotypes at play in these Batson cases.
04-52 +++$+++ 25187 +++$+++ TRUE +++$+++ MR. DROZDOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Equal protection mandates relief in this case, and AEDPA does not prevent it. I respectfully request that the Court affirm the judgment of the Ninth Circuit. Thank you.
04-52 +++$+++ 25188 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel. General Lockyer, you have 4 minutes remaining.
04-52 +++$+++ 25190 +++$+++ FALSE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. First, with respect to juror 19, I think it's the best clear way to see what the Ninth Circuit did and what Collins continues to do, which is to substitute their reading, their inferences, and then conclude that anyone that disagrees is unreasonable. Juror 19 -- if you read page 5, it's clearly a slip of the tongue where she accidentally is comparing the two young people, 6, and says 19. Immediately afterward, she says 6. And the defense counsel says, well, who is 6? She says, it's the other young person, the young white person that I struck. That slip of the tongue is the heart of the Ninth Circuit effort and analysis to do, as the dissenters said in the en banc denial, nitpick the record to find some circumstantial evidence to support your view of inferences and conclusions about reasonableness. I think that partly makes the case and especially with a statute where deference is so owed. The gender claim is ambiguous, but it was not a challenge based solely on race and the circuits are split on the mixed motive question, as Justice Stevens indicated. Second, Third, Fourth, Eighth, and Eleventh, and in one opinion in the Ninth, they've addressed mixed motives generally saying your clearly established Federal law says that it has to be solely based on race. That's the current test in the standard. We raised Jackson and -- Jackson v. Virginia just because of the Lockyer v. Andrade case in which the Court indicates that clear error, when we talk about objective reasonableness in understanding (d)(2) and (d)(1) in the case of Andrade, that it's more than clear error. So we're trying to figure out, well, what's more than clear error. We don't know what it might be other than seeing the evidence in the light most favorable to the trier of fact. And finally, with respect to youth, clearly it's reasonable for a judge to look at the demeanor of the DA who's saying again and again and again it's a young person, unmarried, no ties in the community. One of the things we didn't talk about is the DA who's from Los Angeles knows that that juror lives in Inglewood. Now, there are different kind of neighborhoods in Inglewood, but a lot of them are neighborhoods with lots of drug dealing, and he might think or she might think, in this instance, it shows naivete to answer the question that there's never drug dealing in my neighborhood. Well, for all those concerns, they're not implausible, they're not fantastic, as you know from the decisions that the reasons can be superstitious. They can be silly.
04-52 +++$+++ 25191 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, you're coming up with still more reasons than the prosecutor came up with.
04-52 +++$+++ 25192 +++$+++ TRUE +++$+++ MR. LOCKYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they're just the ones in the record, Your Honor. So I wanted to make sure the Court was aware of them. But that's basically our contention, that deference was owed and the Ninth Circuit didn't respect that deference to trial judge that we rely on for credibility determinations. If there are no questions, thank you very much.
04-52 +++$+++ 25193 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
04-5286 +++$+++ 25197 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument next in No. 04-5286, Michael Dodd v. United States. Ms. Bergmann.
04-5286 +++$+++ 25199 +++$+++ FALSE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Good morning. Mr. Chief Justice, and may it please the Court: The Court today is presented with two strikingly different interpretations of when the 1-year period of limitation found in paragraph 6(3) of 28 U.S.C., section 2255 begins to run. If paragraph 6(3) is read in a manner that is consistent with both Congress' use of verb tense and this Court's decision in Tyler v. Cain, then the Government's interpretation of when the 1-year period begins to run is absurd because it reduces paragraph 6(3) to a near nullity. This is so because, as even the Government admits, retroactivity decisions almost always come more than a year after a decision of this Court initially recognizing a right.
04-5286 +++$+++ 25200 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ When you say it's a nullity, what you really mean is it allows for very -- very little relief.
04-5286 +++$+++ 25201 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. Very few cases would -- would have a retroactivity decision within a year of initial recognition.
04-5286 +++$+++ 25202 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And why is that an argument in your favor?
04-5286 +++$+++ 25203 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- it would -- the argument is in my favor, Your Honor, because this Court should not read acts of Congress in a manner that would render them absurd.
04-5286 +++$+++ 25204 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, to say that it doesn't grant as much relief as it might have doesn't render the statute absurd.
04-5286 +++$+++ 25205 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in -- in this case, Your Honor, it does in two ways. It does because the relief that it would allow has only occurred, in my estimation, once in the post-Teague world since 1989 when Teague v. Lane was decided, and the only other instance would be when this Court would find a right is both -- initially recognize a right and find that right retroactive in the same case, which in my understanding --
04-5286 +++$+++ 25206 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, we've had very few instances in recent years I think where this Court has found some right to be retroactive.
04-5286 +++$+++ 25207 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor.
04-5286 +++$+++ 25208 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So it just doesn't happen very often to begin with.
04-5286 +++$+++ 25209 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor.
04-5286 +++$+++ 25210 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And it would be further limited if the Government's position is adopted here.
04-5286 +++$+++ 25211 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. It would basically be --
04-5286 +++$+++ 25212 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it doesn't happen anyway --
04-5286 +++$+++ 25213 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it does not --
04-5286 +++$+++ 25214 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- very often.
04-5286 +++$+++ 25215 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does not happen very often, Your Honor, but there have been several instances. The situation in Bousley where the Court found that the rights in Bailey applied retroactively. I think most people would consider the Court's recent decision in Atkins v. Virginia would apply retroactively in light of this Court's earlier decision in Penry v. Lynaugh. So it does, indeed, happen and because it happens and because the rights involved in those types cases are so important --
04-5286 +++$+++ 25216 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How -- how do we read this statute concerning what court may find the retroactivity? It's not limited, I assume, under either your view or the Government's to a finding by this Court, a determination that it's retroactive.
04-5286 +++$+++ 25217 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's -- that's correct, Your Honor. The parties agree that a lower court can make the retroactivity decision as well, and that's because of --
04-5286 +++$+++ 25218 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And it could be a court in another circuit presumably if you're in the Federal system.
04-5286 +++$+++ 25219 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I would argue that it would have to be a court in the -- in the circuit in which the prisoner would be filing the 2255 motion because that --
04-5286 +++$+++ 25220 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why?
04-5286 +++$+++ 25221 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why?
04-5286 +++$+++ 25222 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because that court would have jurisdiction over the proceedings in his case and it would be an adequate way of providing notice to that litigant. It -- a decision of another --
04-5286 +++$+++ 25223 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I guess a litigant can read decisions from other courts, as a lawyer can.
04-5286 +++$+++ 25224 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor, but they would have no precedential effect in his case.
04-5286 +++$+++ 25225 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why -- why shouldn't the litigant be put on notice by a district court decision? Let's assume it's in his own circuit.
04-5286 +++$+++ 25226 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, a district court decision would have no precedential value with respect to -- would not bind other district courts in that district and therefore not bind other litigants.
04-5286 +++$+++ 25227 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well --
04-5286 +++$+++ 25228 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But there's -- there's just nothing in the statute that says what level court it has to be.
04-5286 +++$+++ 25229 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, actually, Your Honor, the statute does say that the ruling would have to be made retroactively applicable to cases on collateral review. It does not say a case. And a decision of a district court would make that retroactivity applicable only to one case not to cases.
04-5286 +++$+++ 25230 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but that may be just a generic use of the term cases.
04-5286 +++$+++ 25231 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it could be, Your Honor, but I -- Congress included the language. I think this Court could give meaning to it by interpreting the statute to mean that you would be looking at a decision of the court of appeals rather than a decision from a district court.
04-5286 +++$+++ 25232 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Of course, if -- if you said a district court, one district judge could -- could trigger the thing for the whole country. That --
04-5286 +++$+++ 25233 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be very complicated, Your Honor, given the fact that district courts often issue rulings in unpublished decisions as well.
04-5286 +++$+++ 25234 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-5286 +++$+++ 25235 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So look at the trouble we get into when we take your interpretation. Suppose we take the Government's interpretation and think only of first habeas. Leave second habeas out of it for a moment. But if it were only first habeas and those were all the habeases in the world, wouldn't theirs be better? Every prisoner would know that when you get the right, you file. Okay, no problem. And you're going to win if, and only if, you get a court to say it was retroactive. So that's fine. We all know. All the prisoners know we've got to file within a year. It would cause no problem if there were only first habeases.
04-5286 +++$+++ 25236 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If there were only first habeas, Your Honor, and if the lower courts always made the correct retroactivity --
04-5286 +++$+++ 25237 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. They sometimes don't, but then if they don't, you appeal, just like anything else. And you might lose and you might not get your case taken in the Supreme Court. That's always true for every litigant.
04-5286 +++$+++ 25238 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's --
04-5286 +++$+++ 25239 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so that's a problem. Is there any other problem?
04-5286 +++$+++ 25240 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, there is also a problem which the Government actually concedes --
04-5286 +++$+++ 25241 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What?
04-5286 +++$+++ 25242 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- which is if you read the statutory language of the second clause as being stated in the past tense, and the initial -- and the statute of limitations begins to run with initial recognition, it -- it doesn't respect Congress' intent to provide a 1-year limitation period.
04-5286 +++$+++ 25243 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but that's -- that's linguistic. I'm -- I'm looking for practical problems for prisoners, which was your initial argument. And in respect to a practical problem for a prisoner, I couldn't think of one, and that's why I'm asking. In respect to first habeases.
04-5286 +++$+++ 25244 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect to first habeases.
04-5286 +++$+++ 25245 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Then if your only problem is second habeas, there I'd agree with you. There's a big problem. But it says here the date on which the right asserted was initially recognized. Now, I guess a person who's filed a habeas doesn't have a right until the Supreme Court has made the -- the rule retroactive. And therefore, until the Supreme Court makes it retroactive, there was no right recognized for a second habeas person. And therefore, for that case it does begin to run when the Supreme Court says it's retroactive because prior to that he had no right --
04-5286 +++$+++ 25246 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor --
04-5286 +++$+++ 25247 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- given -- given paragraph 8.
04-5286 +++$+++ 25248 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the same would be true though, Your Honor, then for initial motions that there would be no right available unless a court at some point had held the right applied retroactively to collateral cases because under Teague v. Lane, there is no right to collateral relief simply based on the decision of this Court unless that decision has also been held retroactively applicable.
04-5286 +++$+++ 25249 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it's all -- the word right in (3) quite plainly doesn't cover the last six words of the -- of the sentence. Well, whether the word right -- I'm trying to fix it up. I'm trying to figure out --
04-5286 +++$+++ 25250 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I understand that.
04-5286 +++$+++ 25251 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- how do we get to that conclusion. Now, it seems to me what you've done is say either use my ad hoc mechanism, or let there be chaos, or we take your approach which produces the kind of chaos we've just been discussing.
04-5286 +++$+++ 25252 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I agree with -- that -- that this is not the best drafted statute that Congress has ever come up with, but I think that respecting Congress' use of verb tense and this Court's decision in Tyler v. Cain, to read paragraph 8(2) and paragraph 6(3) together, that -- that it's important that all three of the prerequisites in the statute have been met before the limitation period begins to run. Otherwise --
04-5286 +++$+++ 25253 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why -- why is that important, given what this petitioner did himself? He didn't wait for there to be a retroactivity decision to file the 2255 motion. He filed the 2255 motion before the Ross case was decided. Isn't that right?
04-5286 +++$+++ 25254 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor.
04-5286 +++$+++ 25255 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So perfectly -- the -- the prisoner is perfectly able to file the 2255 motion after the first clause is satisfied, the date on which the right asserted was initially recognized. This movant was too late, if you measured the year from that right but he wasn't -- he wasn't waiting for any retroactivity decision. He filed before the retroactivity case.
04-5286 +++$+++ 25256 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. He was early under our interpretation --
04-5286 +++$+++ 25257 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So on your view of it, his complaint, when it was filed, should have been dismissed as not ripe because he didn't have the final element --
04-5286 +++$+++ 25258 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's --
04-5286 +++$+++ 25259 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that is, the retroactivity?
04-5286 +++$+++ 25260 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. At the time he filed, there had not been a retroactivity decision on which he could rely. During the course of litigation in the district court, the Eleventh Circuit decided the Ross case, and at that point, his right to relief became ripe and the -- and he then had a window open under paragraph 6(3), such as he could file timely.
04-5286 +++$+++ 25261 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course, if we're -- if -- if admittedly, as Justice Breyer said, we're trying to figure out some way to make this work in circumstances in which it's -- it's never going to work smoothly, I suppose one answer would be to take the Government's position and say you've -- your -- your year runs from the moment the right is recognized, but to the -- to the extent that there is a retroactivity question, a -- a court should simply stay the proceeding, hold it in abeyance to see whether, particularly in -- in second habeas where you have the -- the second petition where you have the problem, to see whether some court will, in fact, recognize retroactivity or whether the -- your circuit will recognize retroactivity. Then if it does, then you can go forward.
04-5286 +++$+++ 25262 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the problem with that, Your Honor, is that it -- it encourages, as the Government's rule in general does -- encourages numerous frivolous filings.
04-5286 +++$+++ 25263 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, there's no question there's a Rube Goldberg character of the whole thing, I -- I realize. But -- but that would be a way of -- of solving the second habeas problem and still accepting the Government's position on the -- on the date at which the -- the 1 year for filing starts.
04-5286 +++$+++ 25264 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, a procedure that the Seventh Circuit has adopted -- and the Seventh Circuit agrees with -- with Mr. Dodd's interpretation of the statute that it begins to run with the retroactivity decision. Their solution for these premature filings is to review the case on the merits, and if they feel that the motion would lose on the merits, they dismiss it with prejudice, and if they feel there's some viable claim being stated, then they dismiss it without prejudice to refiling at a later time. That's --
04-5286 +++$+++ 25265 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It would -- it would potentially violate the 1-year limit. That won't necessarily work.
04-5286 +++$+++ 25266 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Crazy.
04-5286 +++$+++ 25267 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-5286 +++$+++ 25268 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, it's a very odd statute.
04-5286 +++$+++ 25269 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it is, Your Honor. It's very odd.
04-5286 +++$+++ 25270 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You -- you don't know who's responsible for writing this, do you? (Laughter.)
04-5286 +++$+++ 25271 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Actually my understanding is that much of it was written by the Attorney General in California at the time.
04-5286 +++$+++ 25272 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can -- do you understand the -- the difference between what is a right initially recognized and then what is a right newly recognized? The statute is supposed to have three requirements: initially recognized, newly recognized, and made retroactive.
04-5286 +++$+++ 25273 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. My understanding of when a right is newly recognized is -- is when it is new in the sense that this Court has adopted under Teague v. Lane, that it's not dictated by prior precedent. A right can be initially recognized by this Court but not new in the Teague sense.
04-5286 +++$+++ 25274 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Actually Justice Souter's approach might work here because you -- you -- all the second habeases file immediately. Now, the Seventh Circuit, you say, well, gets to those second habeases right away, and it says dismissed. Very well. When they say dismissed, then they ask for cert. And when they ask for cert, we take or we don't. If we don't, then they're out of luck. And if we take it, people would hold all the other cases waiting to see what we decide. So they wouldn't lose out in any case where we really were going to make it collaterally -- applicable on collateral review.
04-5286 +++$+++ 25275 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But then, Your Honor, you run up against your decision in Tyler v. Cain, and that was the circumstance of the litigant in Tyler v. Cain. No -- this Court had not previously determined that the right at issue in Tyler v. Cain was retroactively applicable, and under the second or successive statute that -- in the way the Court read this, the Court said that this Court could not determine the retroactivity of, I believe it was, Cage v. Louisiana in that very case because it was contrary to the language in the statute.
04-5286 +++$+++ 25276 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, I'm sure my dissent was correct in that case, but the -- (Laughter.)
04-5286 +++$+++ 25277 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-5286 +++$+++ 25278 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The -- the -- still -- it still would work because the first case has come down. Okay? The first case has come down. Now all the prisoners read about these cases, and even if they've already filed a habeas, they go file another. And the Seventh Circuit, you say, then looks at that first one that they get to, and they say, dismissed. Oh, you're saying that then he comes he here and we say the reason you lose is not because you're wrong. The reason you lose is because you're not yet ripe.
04-5286 +++$+++ 25279 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that's correct, Your Honor. What Congress appears to have intended in this -- in this statute, as -- as much as anyone can tell, is that retroactivity decisions be -- be litigated in cases that are brought under paragraph 6(1) which is those cases that are within a -- a year of when the judgment of conviction became final. That's exactly what happened here. And the Ross case that litigated the question of the retroactivity of Richardson, that was a case brought under paragraph 6(1). Mr. Ross was within a year of when his judgment of conviction became final, and -- and the issue of retroactivity was -- was litigated straight and up in that case. And what it appears that Congress intended was that very circumstance to happen in all cases, that the retroactivity of decisions of this Court be litigated in cases brought within a year of finality, and then once those decisions were made, then litigants under paragraph 6(3) would have the opportunity to file when a court of appeals issued a retroactivity ruling. And then litigants under paragraph 8(2) would have a -- the ability to file --
04-5286 +++$+++ 25280 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But we -- we still might be able to deal with it. That person files his petition for cert. He puts in the petition there are 4,000 prisoners who are trying to file second habeases, and if you decide retroactivity, collateral, all of them but me will be able to proceed. But you have to have enough sense, Supreme Court, to take my case to decide if you're going to decide retroactivity, that it is and give me the benefit of the decision.
04-5286 +++$+++ 25281 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, then, Your Honor, I guess the Court would have to -- to totally reconsider its decision in Tyler v. Cain to reach that conclusion. And I don't know what to say. I mean, since Tyler v. Cain was enacted for -- I'm sorry -- decided 4 years ago, Congress has made no effort to overturn that decision, and it appears Congress believed that the Court had -- had read the statute correctly in that case. And so if you interpret the made retroactivity -- made retroactively applicable language in paragraph 6(3) in the way that this Court read the language in paragraph 8(2), such that the retroactivity decision has to be made before a motion can be filed, it becomes very complicated to do that if the 1-year period begins to run within initial --
04-5286 +++$+++ 25282 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The problem with your argument, Ms. Bergmann, seems to be addressed to the idea that Congress intended to sweep quite broadly here. But I don't think that's the necessary inference at all. We're dealing with a situation, as Justice O'Connor points out, where we have very rarely held that a decision is retroactive. So it's already a very small class of cases, and the Government's view makes it an even smaller class of cases. But that doesn't mean the statute doesn't work. It just means it doesn't work for a lot of people who are excluded from it.
04-5286 +++$+++ 25283 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I -- I agree that this involves a very small class of cases. The problem with the Government's reading is that they say that they are narrowly constricting the statute, but the procedural mechanism that they set up allows for a vast number of cases that would never fall within the statute of limitations to be filed and requires the court to deal with each and every one of those cases in the first instance. Whereas, my reading of statute has the benefit of allowing a -- a test case to proceed. Given the fact that there are very few number of these rights that are made retroactively applicable, it -- it makes more sense in terms of judicial resources to allow there to be this situation where is -- there is a test case --
04-5286 +++$+++ 25284 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But on your theory, there wouldn't be much in the way of resources because you say there's no ripe claim until the retroactivity decision comes down. Why wouldn't a district judge, faced with this dilemma, simply say, well, I'll just hold this complaint until the -- the court of appeals or the Supreme Court rules on retroactivity?
04-5286 +++$+++ 25285 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, certainly the district courts would do that. The more appropriate course of action would probably be to find the motion at that point untimely because it does not fall within any of the -- it -- if it is outside the initial year from finality but doesn't fall within any of the other exceptions stated in paragraph 6, then it -- it would be untimely and the court could dismiss it as such. I mean, by doing so, if the court dismisses it, it could well count as a first motion so that any motion filed thereafter would be a second or successive motion. And this would be -- preclude litigants from filing prematurely and burdening the courts with premature filings until it is clear they have a cause of action. I mean, what's strange about the Government's reading of the statute is that they believe Congress intended for a limitations period to begin to run before the litigant had any right to relief. No one has a right to relief in the collateral proceeding until the right at issue has been made retroactively applicable to collateral cases. And so that this kind of disjoinder of the statute of limitations and the cause of action creates this problem where people will be -- feel compelled to file protective motions.
04-5286 +++$+++ 25286 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask this question? The words, made retroactively applicable to cases on collateral review, don't have a modifier such as telling us by whom it's made retroactive. Has any court considered what seems to me a fairly normal reading that the -- the words, by the Supreme Court, should apply to that phrase as well as the preceding language?
04-5286 +++$+++ 25287 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, actually, Your Honor, every lower court to consider the language has found that the retroactivity decision need not be made by this Court, and the reason for that is the difference between the language in paragraph 6(3) and in the second or successive provision in paragraph 8(2). In paragraph 8(2), it explicitly states that it has to be made retroactive to cases on collateral review by the Supreme Court.
04-5286 +++$+++ 25288 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It seems to me that cuts in the other direction, that when Congress thought about the entity that makes it retroactive, they thought about us. And that's why -- and that's the only language that seems to fit. I mean, the by the Supreme Court seems to fit that concept.
04-5286 +++$+++ 25289 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If -- if you apply --
04-5286 +++$+++ 25290 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I guess nobody has come up with this suggestion other than this question.
04-5286 +++$+++ 25291 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, various lower courts have considered that possibility and have latched onto the different -- differences in language where paragraph 8(2) explicitly states it has to be made by the Supreme Court, but paragraph 6(3) says it does not. And -- and the court below said the same thing, and the parties agree that the retroactivity decision need not be made by this Court.
04-5286 +++$+++ 25292 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if we disagree and think it should be, I guess that would open a door down the road for people after this Court made such a determination.
04-5286 +++$+++ 25293 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. It would make paragraph 6(3) much more consistent with paragraph 8(2), if -- if the --
04-5286 +++$+++ 25294 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-5286 +++$+++ 25295 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But again, it would work only if the 1-year period began to run from this Court's retroactivity decision. If it begins to run from initial recognition, then that would turn paragraph 6(3) into an absolute nullity because I know of no case where this Court has made a retroactivity decision within a year of when it initially recognizes a right.
04-5286 +++$+++ 25296 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that fits the language, the date on which the right was initially recognized by the Supreme Court if and only if it's been made retroactively by the Supreme Court. It seems to me a very normal reading of the language. But nobody else agrees with it.
04-5286 +++$+++ 25297 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, that no one else has -- has agreed with thus far.
04-5286 +++$+++ 25298 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but there -- it's -- I'm now taken with this. I'm jumping from one thing to another here. But that does get rid of the problems that were initially plaguing your position because it's precise and definite. And it also gets rid of whatever problems were produced by Tyler because a person could easily get to the Supreme Court in that rare case without his petition, if it's a first petition, being improperly filed because he's not bound by paragraph 8.
04-5286 +++$+++ 25299 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-5286 +++$+++ 25300 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it's a first position. So all that he does is he files a petition. He can file it before any court -- nothing says he can't file it before a court has decided it's retroactive. He files the petition. He seeks cert here. He gets us to say it's retroactive in that rare instance, and everyone else has a year from that moment. And as far as the -- the second people are concerned, they don't -- the second petition people don't have to file it until a year from that moment, and they have a good claim under paragraph 8. There's quite a lot -- now -- now, I'm jumping to that because it sounds like it might be good.
04-5286 +++$+++ 25301 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I'm sorry, Your Honor. I think you may have lost me. You would have the --
04-5286 +++$+++ 25302 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, don't worry about it. (Laughter.)
04-5286 +++$+++ 25303 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay. If the Court has no other questions, I'll reserve the rest of my time.
04-5286 +++$+++ 25304 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Ms. Bergmann. Mr. Feldman, we'll hear from you.
04-5286 +++$+++ 25306 +++$+++ FALSE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would you address that last suggestion first, Mr. Feldman?
04-5286 +++$+++ 25307 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure I completely held it in -- in my mind.
04-5286 +++$+++ 25308 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It was very --
04-5286 +++$+++ 25309 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our basic position is --
04-5286 +++$+++ 25310 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, to -- to interpret as meaning only this Court could make the retroactivity determination and the 1 year wouldn't run until and unless there was a new rule and subsequently in whatever case this Court said it was retroactive.
04-5286 +++$+++ 25311 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I have two comments about that. That was a position which actually a footnote in our brief in Tyler against Cain I think suggested, although that wasn't the issue before the Court in that case. But since that time, this has been litigated in a number of courts of appeals and district courts, and as far as I'm aware, no court has accepted that. And the reason they haven't --
04-5286 +++$+++ 25312 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, that's true, but I assume it is, nonetheless, open for us to do so --
04-5286 +++$+++ 25313 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-5286 +++$+++ 25314 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- if we thought it was correct. What is your view?
04-5286 +++$+++ 25315 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would be, but I think we came to the conclusion that it probably wasn't because the words, by the Supreme Court, are not only present in two different places right in this paragraph 6(3), also in 8(2), also in 2244 and in 22 -- I think -- 64. And it does seem to be a pattern that where the Congress expected a decision by this Court in the whole series of statutes, they said, by the Supreme Court. And it's notably missing from the phrase that says, made retroactive to cases on collateral review.
04-5286 +++$+++ 25316 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It is noticeably missing because it -- it has a blank there and the words, by the Supreme Court, are the only time limitation in that whole provision after the word if.
04-5286 +++$+++ 25317 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- that -- it -- what it says -- it says newly recognized by the Supreme Court and made retroactive. It doesn't say by the Supreme Court. That's the rationale the courts have used. But if I could move to the --
04-5286 +++$+++ 25318 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if you don't -- aren't -- I mean, the language is open, and it's sort of like the virtue of this -- suddenly it's like tinkers to Everest chance. I mean, it seems to put everything together. What was worrying you most about their position was it produced uncertainty, a kind of a mess. You don't know which court you're talking about. People would be filing things all over the place. They'll be waiting. That -- it's a mess. This stops that. What's worrying them is that the second habeas person, given Tyler, could never file, not even in that -- you know, not even in that -- in that really unusual situation where we're going to make it a collateral review. And now, what this does is it produces the certainty, the definiteness of when your time clock begins to tick, and it eliminates all the uncertainty, et cetera, and confusion, difficulty from their position.
04-5286 +++$+++ 25319 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think the other -- the other problem that I actually am -- that I think the Court should be worried about is that this statute sets one -- it doesn't say anything about the date on which something is made retroactive. It says it runs from the later of four dates and it then sets forth what those dates are. And it says, the date on which the right asserted was initially recognized by the Supreme Court, if certain conditions are satisfied. Now, that if clause may well raise some -- it does raise, I think, some interpretative issues. But however you interpret the if clause, that just tells you whether the petitioner can use that date on which the right was initially recognized or not. If he can't use it, if the if clause is not satisfied, then he's -- he only has to show he's timely under one of the other three provisions. The normal one is 1 year from the date that the conviction became final. And I think our primary submission in the case is however you construe the if clause, it can't possibly be read to -- whatever interpretative problems there are there, it can't be possibly be read to alter the totally plain language that Congress --
04-5286 +++$+++ 25320 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, it could because you could say what the Congress intended to say. If the right had X, Y, and Z, it shall in that event run from that date.
04-5286 +++$+++ 25321 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-5286 +++$+++ 25322 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's implicit in it.
04-5286 +++$+++ 25323 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And it's not --
04-5286 +++$+++ 25324 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Just like the words, by the Supreme Court --
04-5286 +++$+++ 25325 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not -- it's not --
04-5286 +++$+++ 25326 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- would be implicit.
04-5286 +++$+++ 25327 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- it doesn't. But even then, it's not -- it doesn't run from that date, and the -- he's -- and the -- the petitioner has the -- the applicant has no date on -- if he's past his 1 year from the date the conviction became final, he has no date on which he can rely to make his application timely. And our primary submission --
04-5286 +++$+++ 25328 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, on Justice Stevens' analysis, he does not have a date until the retroactivity decision is made, and he has to sit there and wait. But when the retroactivity decision is made, he's got his date.
04-5286 +++$+++ 25329 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But this statute doesn't -- it's not worded the way the -- the -- paragraph 6 as a whole says you have the later of four dates. It names four different things. But subparagraph (3) doesn't say, well, the later of any of these things. It -- it tells you if the condition is satisfied then you -- the question is -- okay, the if condition is satisfied. I can use paragraph (3). What's my time limit? And it says the date on which -- 1 year from the date on which the right was initially recognized by the Supreme Court, and that's the date he has. If the -- if -- if it turns out that he can't use it because the appropriate thing doesn't happen till later, then he just can't use that date. He has three other possible dates to use under paragraph (6) --
04-5286 +++$+++ 25330 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I follow your linguistic -- Justice Stevens follows the linguistic analysis. I think the question that he's raising, the question I'm raising is, do we have a good reason here to doubt that the linguistic analysis is getting us to -- to what Congress would have intended? The proposed good reason or the best reason I think is that if we read it your way, then as Justice Breyer said in Tyler, as a practical matter, second habeas is -- is -- a second habeas petitioner is -- is almost never going to -- or probably, in fact, never will get the benefit of the new rule. Well, maybe one answer to that is, so what. The reason that cannot be dismissed, I think, that way is this. As has been pointed out here, we do not under our rules often make a new rule retroactive, but when we do under the conditions which we impose for that, it's -- it's one humdinger of a rule. (Laughter.)
04-5286 +++$+++ 25331 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it is -- it is unlikely -- or at least there's a good argument that it's unlikely -- that Congress would have wanted to exclude all the potential second habeas people from it, particularly because they're second habeas people because they got in in time on first habeas. They played by the rules, and on your theory basically they're out of the game on a very important rule. So that's the argument for saying that your linguistic analysis may not be pointing to what Congress intended.
04-5286 +++$+++ 25332 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I disagree with that. First, on second habeas, the -- this Court, I think all three opinions, in Tyler against Cain recognized that there can be cases where this Court recognizes a new right and it is retroactive at the same time where it's the combination of some earlier decision that said all rules of a certain type are retroactive and then in the second --
04-5286 +++$+++ 25333 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that is --
04-5286 +++$+++ 25334 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the Court said we are recognizing a rule of that type.
04-5286 +++$+++ 25335 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That is a highly exceptional case, and the problem with that is -- I mean, if -- if we're going to -- if you're going to be linguistic about it, you'd have to say, well, that really is not very sound reasoning because that is not a holding because the -- you -- you've got not merely to have recognized it under the statute, but you've got to have held it. And that's -- that's pretty unlikely.
04-5286 +++$+++ 25336 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it says actually made retroactive, and I -- all of --
04-5286 +++$+++ 25337 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I guess we've said you've got to do it with --
04-5286 +++$+++ 25338 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- all three of the opinions in Tyler recognized that that sort of thing can happen, and I think that that actually is by far the most common kind of case because that's likely to be a case where the Court has said, for example, where Teague doesn't apply at all where the Court has narrowed the scope substantially of a Federal criminal statute such as in the Bailey case where -- where the question was whether it has to be active use or mere possession of a firearm. And those kinds of cases are very possibly, at least if the Court has made it clear that they're narrowing the -- the Court is narrowing the conduct that was thought to be criminal in construing a criminal statute, those are the kinds of cases that are likely to arise most often. In those kinds of cases, that is likely to be the kind of the thing the Court was talking about in Tyler against Cain. With respect to the other class of cases, which would -- the only other class of retroactive cases would be those that come within the second -- what used to be called the second Teague exception for bedrock principles that have the primacy or centrality of Gideon against Wainwright. Now, the Court has suggested -- it has said that it may be doubted that any such rules remain to -- to be discovered. But if there were, I think a court of -- a case of that level of centrality and primacy and importance, I think that this Court and other courts could take steps to decide whatever pending section 2255 motions they have or whatever ones could be filed by someone who still has their 1 year to go from date of finality of conviction to decide those quite quickly because that would be --
04-5286 +++$+++ 25339 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In those cases, would the Government ever on its own motion have a defendant retried or released? Has that ever happened?
04-5286 +++$+++ 25340 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- you know, I -- for instance, I don't know what the history was.
04-5286 +++$+++ 25341 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't think it has. If -- let me ask you this. If -- if a decision says that what was a crime, as defined to the jury, is no longer a crime -- the conduct was no longer a crime -- I take it Teague doesn't necessarily apply to that, but this is still a substantive rule that's retroactive. Is that the way it works?
04-5286 +++$+++ 25342 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the -- what the Court has said and clarified most recently in the Summerlin case last year is that those -- Teague doesn't apply. It's not an exception to Teague, but Teague doesn't apply because those cases are retroactive without going through a particular analysis under Teague.
04-5286 +++$+++ 25343 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But what -- what interest does the Government have in holding somebody when the conduct for which he was convicted is no longer a crime?
04-5286 +++$+++ 25344 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Government doesn't have any interest in doing that. And I -- I think if the Government --
04-5286 +++$+++ 25345 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why don't you let the guy go?
04-5286 +++$+++ 25346 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would -- I would recommend the Government do that if we found a case. What actually happens, of course, in real life is there's argument about what were -- what -- how was the jury actually instructed. Did the jury find the necessary fact? Was it just harmless error because this case was tried on a theory that made it totally clear that he did commit the crime even as narrowed by this Court and those kinds of questions arising.
04-5286 +++$+++ 25347 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Let's say he's being --
04-5286 +++$+++ 25348 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I can't say how they would work themselves out.
04-5286 +++$+++ 25349 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Let's say he's being held because the Government insists that it's not retroactive and the Government is then proven wrong. Would that let him qualify under (2) because then the -- the impediment to making the motion was the fact that he thought it was not retroactive, but then -- and that was Government action because that's what you insisted on. But then that's removed. So does -- so would -- does entitlement under (2) apply?
04-5286 +++$+++ 25350 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't -- I don't think -- I don't think so because I would only think --
04-5286 +++$+++ 25351 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I -- I don't think this is going to work.
04-5286 +++$+++ 25352 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I don't think the Government holding somebody pursuant to a hitherto valid judgment would be seen as an impediment to making an -- a motion. I think that would be the Government --
04-5286 +++$+++ 25353 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well -- well, but it is because he -- it hasn't been found retroactive yet and he can't file --
04-5286 +++$+++ 25354 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but the -- the defendant --
04-5286 +++$+++ 25355 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- under your view.
04-5286 +++$+++ 25356 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The fact that the Government is holding him doesn't prevent him from file. If the Government did actually prevent him from filing something, said you -- we're not going to take your mail that you're trying to send to the court, I think that's the kind of thing --
04-5286 +++$+++ 25357 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, you prevented him from filing effectively. I mean --
04-5286 +++$+++ 25358 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think --
04-5286 +++$+++ 25359 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- the petition has to be dismissed.
04-5286 +++$+++ 25360 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think the Government has. I think the Government has said, go ahead and file whatever you want to file, and if you can obtain relief, then you should get it.
04-5286 +++$+++ 25361 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-5286 +++$+++ 25362 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And if the Government itself concludes that someone should be released, there are mechanisms to do that --
04-5286 +++$+++ 25363 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's probably right.
04-5286 +++$+++ 25364 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the Government could.
04-5286 +++$+++ 25365 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The language -- the language is on your side, I think there's no doubt. But it's not unambiguous. Imagine a prison rule that says that the -- after the prison board, the -- the prisoner has 2 weeks to appeal to the warden from the time of the decision of the board if the prisoner has been notified. The prisoner isn't notified for 3 weeks. I think we'd read that to say he has 2 weeks from the time of notification. You -- you can use can if in that way. It's not impossible. And once I begin to think it could be open, I think, well, let's look for the most practical approach.
04-5286 +++$+++ 25366 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think under that -- those circumstances, there may be circumstances under which equitable tolling would be appropriate in a particular case. That's the kind of thing that also --
04-5286 +++$+++ 25367 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You -- you'd say, well the language is clear -- clear, but let's go -- let's go on equitable tolling.
04-5286 +++$+++ 25368 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I don't -- I wouldn't go here on equitable tolling. In other words, I think maybe -- I don't -- I can't imagine all the possible cases under 6(3).
04-5286 +++$+++ 25369 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. What you're saying is the language.
04-5286 +++$+++ 25370 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But where the event that you're relying on for tolling would be an event that is anticipated in the statute and would be across the board and would really have nothing to do with the particular conduct of the petitioner's case, but whether someone else has gone and gotten a retroactivity ruling, I think it would be unprecedented in those circumstances to just rewrite the statute to come to a different date than what Congress had set. Congress set the date on which the right initially was recognized by this Court.
04-5286 +++$+++ 25371 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Dreeben, could I bring you back to the -- the issue? I'm sorry. Yes. Can I bring you back to the issue of whether the Court that recognizes the right has to be the Supreme Court or not? You say there are three other instances in which it is specified that it be the Supreme Court, and it's not specified here. But does any of those other three instances involve language like this which -- which has the Supreme Court mentioned immediately previously? I mean, when I read that the first time, has been newly recognized by the Supreme Court and made retroactively applicable to cases, I mean, I think what it envisions is the -- the very decision of the Supreme Court that newly recognized it made it retroactively applicable. Is -- is any of the other ones phrased this way so that the word, the Supreme Court, is immediately preceding the and made retroactively applicable?
04-5286 +++$+++ 25372 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You know, I'd -- I'd have to look at the -- I can tell you where the statutes are. One is 8(2), of course, which is right in 2255.
04-5286 +++$+++ 25373 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right.
04-5286 +++$+++ 25374 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The other is in 2244 which I think is worded exactly the same as this is. The third is I think 2264, which I -- I just would have to look at the specific wording of each of those. But I think the -- you know, and this --
04-5286 +++$+++ 25375 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The proximity of the reference to the Supreme Court there really --
04-5286 +++$+++ 25376 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-5286 +++$+++ 25377 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- when you read it the first time, you think they're talking about the Supreme Court.
04-5286 +++$+++ 25378 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You could also --
04-5286 +++$+++ 25379 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Has been newly recognized by the Supreme Court and made retroactively applicable.
04-5286 +++$+++ 25380 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You could also -- you -- you could, but you -- and we did take that position in Tyler. You could also read it, though, the -- the presence of the word Supreme Court right before and the absence of the words, the Supreme Court, here and the presence of the Supreme Court in the first one -- you could certainly draw the inference that this was not something -- this part of it didn't have to be made by the Supreme Court. And perhaps Congress was recognizing that it -- it does take this Court a longer time to reach a retroactivity decision than it would take the lower courts hearing cases. Once --
04-5286 +++$+++ 25381 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there anything in any of these statutes or legislative history or any -- anyplace else where Congress ever thought of the possibility that some other court might make a new rule retroactive?
04-5286 +++$+++ 25382 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think there's any statement one way or another, but I do think there are holdings. There are holdings as -- as the petitioner relies on by the Eleventh --
04-5286 +++$+++ 25383 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think the other reading is -- the assumption was -- and I think it's incorrect -- that we would simultaneously identify the new right and decide it is or is not retroactive. That was the assumption I think.
04-5286 +++$+++ 25384 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I just -- I think that would be unlikely because this Court's practice has certainly not since Teague and even going decades before Teague --
04-5286 +++$+++ 25385 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. I realize it's wrong, but I think that's probably the assumption Congress made. That's what I'm suggesting.
04-5286 +++$+++ 25386 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I guess I -- I would just think it's unlikely because although this statute has some drafting -- it certainly raises some drafting issues, I think they likely -- that basic element of this Court's retroactivity jurisprudence, which has been true for decades, I think likely --
04-5286 +++$+++ 25387 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ See, the only thing about your reading of the statute that troubles me is you're -- you're reading the word only. If it's a 1-year statute, but only if Congress -- the Supreme Court has already done the next two things. 1 year is the maximum.
04-5286 +++$+++ 25388 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Just -- I'm reading it has an if. If is a condition. If --
04-5286 +++$+++ 25389 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There's an only --
04-5286 +++$+++ 25390 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What if does is states a condition.
04-5286 +++$+++ 25391 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's not an if, but if that happens, then it shall be --
04-5286 +++$+++ 25392 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, because Congress didn't say it. If Congress had phrased this the way it phrased the -- the 6(3) as a whole and said it shall it run from the later of three dates, the date that the Supreme Court holds it -- recognizes the right or the date it holds it retroactive, that would have -- that would have been --
04-5286 +++$+++ 25393 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ See, it really --
04-5286 +++$+++ 25394 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that would have --
04-5286 +++$+++ 25395 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- would accomplish your objective if you just struck the whole clause after the word if. You don't really need that.
04-5286 +++$+++ 25396 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I don't think so. I think what the clause does is it makes it clear that in 6(3), which is a -- you know, intended to be a narrow exception from the -- the rule of finality -- that in 6(3) what Congress was doing was saying this is the only class of cases that we want this to apply to. And if they had just said the date on which the right was initially recognized by the Supreme Court, I think there might have been some inference that they were not -- they were trying to extend that beyond cases that are retroactive under Teague, or perhaps someone might have read that and said, you know, Teague is no longer applicable. Now Congress has a new standard that it's enacted here. And I think Congress wanted make clear -- the people who drafted this -- that that was not what they were trying to do. And by saying made retroactive -- if it has been newly recognized and made retroactive to cases on collateral review, what they were plainly referring to was this Court's jurisprudence under Teague so that no one would think this deadline is supposed to somehow open the door to cases that would otherwise be barred by Teague.
04-5286 +++$+++ 25397 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, what courts in -- in your view have to make the retroactivity finding? The district court? The circuit where he's -- which has jurisdiction over his case? Any circuit?
04-5286 +++$+++ 25398 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think every court that has addressed that question has come to the conclusion that it can be -- it has to be the circuit with territorial jurisdiction over the applicant's case. That's generally the jurisdiction of courts of appeals and the area in which their rulings are effective. It also could be, in our view, the district court that's hearing the particular defendant's case because that's --
04-5286 +++$+++ 25399 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If it's not that -- if it isn't the district court in that case, then you -- the district court has to take this complaint and just freeze it until some other -- a higher court rules on it.
04-5286 +++$+++ 25400 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I don't see any -- I don't think that that would be the appropriate thing to do. I think if -- if the view was that this had to -- it couldn't be filed until a court with jurisdiction over the case had actually held that the right was retroactive, then I think the correct course for the district court would be to dismiss it because it's -- it's not -- it's not a timely petition. At the time when it's filed, there's -- it's -- we're assuming 1 year past the date that the conviction became final, and there's no other provision at that point that can render it timely. And at that point, the correct course for the district court would be just to dismiss it.
04-5286 +++$+++ 25401 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So that if 10 other circuits have ruled on this but not his own, there's nothing he can do until somebody within the 1-year window files.
04-5286 +++$+++ 25402 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our view -- well, that -- that -- if -- if the -- the made retroactive has to occur before he files, that would be the consequence. But our view is it can be made retroactive in his own case, and therefore, anyone can file. They have a 1-year window from the time when a new right is recognized, and if in their own case it's held to be retroactive, then they were timely and they may well get relief depending --
04-5286 +++$+++ 25403 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So far as first habe goes.
04-5286 +++$+++ 25404 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So far as first habeas goes.
04-5286 +++$+++ 25405 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Second habe, he's out cold.
04-5286 +++$+++ 25406 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think that it's -- I don't -- second habeas is definitely a narrower window, and I think Congress intended it to be a narrower window. But for the reasons I said, there are decisions where the Court holds -- where this Court recognizes, in effect, the retroactivity of a new rule at the same time as it announces it, as the Court said in Tyler. And there are -- this Court and lower courts can act quickly on these kinds of things. If the kind of bedrock principle with the primacy and centrality of Gideon against Wainwright came up, I think the lower courts would see we have to act very quickly on this. I -- one point of note is that Richardson itself, which the Government doesn't believe is retroactive, but that's not before the Court here -- the first decision holding Richardson retroactive came down 7 months after this Court decided Richardson. The second -- and that was where no one was thinking they had to particularly rush on that. But if this Court were to recognize a new right under -- a -- a new right that satisfied the second Teague exception, I think it can be expected because it would necessarily be -- have a certain primacy and centrality and sweep that there would probably be cases pending in the courts of appeals, in the district courts raising that issue, and I think the courts involved, if they -- this Court said, look, this is -- this is the way the thing has to be understood in accordance with --
04-5286 +++$+++ 25407 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What it would do -- let's take a case which I guess we -- Apprendi. I mean, you know, Apprendi, a big sort of an issue in the courts. And -- and this would put tremendous pressure on us to decide it immediately, wouldn't it? We'd have to say immediately whether it was going to be retroactive or not retroactive because it's only likely to come along in some major, major matter like that, other than the kind Justice Kennedy said, which is another kind of problem. I mean, I don't see a way, if we take your approach, of getting out of this tremendous pressure. Maybe it would be a good thing. But I don't think there's a way of getting out of it.
04-5286 +++$+++ 25408 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think this Court has -- has to take cases and plan its docket in accordance with a wide variety of considerations and that may be something that the Court would want to take into consideration.
04-5286 +++$+++ 25409 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what do you think about the -- it seems to me we've tried three approaches, each of which try to get us out of this problem of the pressure, call it. And we have Justice Stevens' and then -- but there were certain problems with Justice Souter's, which still I'm not certain might -- then I had started with one that I guess the objection to it would be it's laughable. But -- but is there -- is there any -- I mean, you see, it's -- it's reading -- it's reading the word right in 6 to encompass all of the paragraph in 8. Is there anything -- I mean, it's a pretty good objection that really that just goes too far.
04-5286 +++$+++ 25410 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I --
04-5286 +++$+++ 25411 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But is there any other objection?
04-5286 +++$+++ 25412 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think essentially the same one, that -- that they use the term right in 6 and they didn't intend that term to mean something different, whether it was a first habeas or a second habeas.
04-5286 +++$+++ 25413 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you --
04-5286 +++$+++ 25414 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They were talking about the right that was asserted.
04-5286 +++$+++ 25415 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you this question? Isn't it true that under some of the other references they refer to a constitutional right?
04-5286 +++$+++ 25416 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. That's another --
04-5286 +++$+++ 25417 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Whereas this just refers to a right and it includes statutory rights. And, of course, the odd thing about that is that normally when we construe a statute, we say it always meant that. It's not -- it's not a new right in the sense as a right as of the date of enactment.
04-5286 +++$+++ 25418 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-5286 +++$+++ 25419 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So the difference between the Constitution and statutes sometimes is rather significant.
04-5286 +++$+++ 25420 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. In paragraph 8(2) only -- only -- it does require a constitutional right. But in -- in 6(3) it refers just to right. But, as I said, that would, I think, encompass the class of cases such as Bailey where this Court interprets a Federal statute and narrows it and makes conduct that was thought to violate the statute earlier -- it means that conduct no longer violates it. Those kinds of decisions may well under -- if the Court has made those points clear, if that clearly is what this Court decided, those cases may well be retroactive at the time they're announced under the rationale that all the opinions in Tyler against Cain accepted.
04-5286 +++$+++ 25421 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Feldman, is there any case in which the Supreme Court newly recognizes a right in which it does not initially recognize the right?
04-5286 +++$+++ 25422 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think there's sound -- those seem to me to be synonymous and --
04-5286 +++$+++ 25423 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, they're -- they're -- I thought your position was newly recognized means that it -- it has to be the kind of a right that would -- would overcome our usual bar to -- to, you know, rights that existed before.
04-5286 +++$+++ 25424 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. But I think initially recognizing may well be another way of saying the same thing.
04-5286 +++$+++ 25425 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Every -- every newly recognized is an -- is an initially recognized, although every initially recognized is not necessarily a newly recognized. Is that it?
04-5286 +++$+++ 25426 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I was actually thinking of it the other way around.
04-5286 +++$+++ 25427 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The other way around? (Laughter.)
04-5286 +++$+++ 25428 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Which -- but that -- that -- where this Court has --
04-5286 +++$+++ 25429 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You don't know who wrote this either, do you? (Laughter.)
04-5286 +++$+++ 25430 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't. No, I don't. No, I don't. But I think the point of the newly -- in fact, if you look at -- if you kind of flip it, the point of this provision can -- maybe becomes a little bit clearer. It's if -- if you start with the if, if the petition is based on a right that is newly recognized and made retroactive to cases on collateral review, that's the class. If that happened --
04-5286 +++$+++ 25431 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Sure.
04-5286 +++$+++ 25432 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- then the time runs from the date on which it was initially recognized. In other words --
04-5286 +++$+++ 25433 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Which would have been the date on which it was newly recognized.
04-5286 +++$+++ 25434 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-5286 +++$+++ 25435 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So why couldn't they say, the date on which the right asserted was newly recognized by the Supreme Court if it has been made retroactively applicable? Wouldn't that have been a more --
04-5286 +++$+++ 25436 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that would have been better. I would definitely agree with that.
04-5286 +++$+++ 25437 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what about -- I think the principal argument that Ms. Bergmann made was your reading means people -- you're encouraging filings that inevitably will be thrown out because the right will be made retroactive?
04-5286 +++$+++ 25438 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think I just have a couple of answers to that. One is that when Congress enacts a statute of limitations, any statute of limitations has the effect of pushing people into court who might otherwise like to wait. And that was a predictable result that Congress would have surely known when it enacted this. I --
04-5286 +++$+++ 25439 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the other -- the other way avoids loading the district court with filings that are futile.
04-5286 +++$+++ 25440 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- and which -- many of which may be quite easy to -- to dismiss. But I would say Ms. Bergmann's reading has a kind of -- the opposite problem with it, which is under her reading the -- no one -- when a court holds something retroactive can -- is an unpredictable matter. And under her reading, nobody -- even where there's a right that's rather important and that should be retroactive, no one could get relief until an appropriate court has held it retroactive, which could take years. It could be never. And if the Court -- and I think that that reading of that -- therefore, I think that that -- that reading has just the opposite problem.
04-5286 +++$+++ 25441 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You see, you're -- you're saying --
04-5286 +++$+++ 25442 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What Congress wanted --
04-5286 +++$+++ 25443 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that the district court should take these filings, should not hold them. It should itself make the retroactivity determination.
04-5286 +++$+++ 25444 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It can do that subject to appeal and ultimately certiorari in this Court. I think, though, that ultimately what Congress wanted was a 1-year period after this Court initially recognizes a new right. When the -- for that -- that period of time the finality that is so important to the criminal law is -- does -- is suspended to a certain degree. People can litigate the issue. After that, the criminal law can go back to its retributive, deterrent purposes which can only be achieved if finality is recognized. I think, in particular, when you're talking about section 2255 motions, frequently the relief, if there is any, is going to be a new trial. And there's a particular cost, as the Court has recognized, of trying to retry somebody many, many years after an initial conviction. Sometimes it means, in effect, it's just an acquittal because you can't find the witnesses or you can no longer prove it beyond a reasonable doubt. And I think, therefore, Congress said, all right, well if there's a new right, that's a sufficiently exceptional circumstance, that we can suspend that finality for a brief period, but 1 year and that's all. These things shouldn't come out 10 years later or 15 years later or 20 years later. And that was the purpose, I think a perfectly reasonable purpose that Congress intended to serve here. And I think that actually the language of it, which says 1 year from the date on which the right asserted was initially recognized by this Court, accomplishes that purpose.
04-5286 +++$+++ 25445 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Your -- your position is strengthened by the other three provisions of the statute that mentioned this, but it's not controlled by that, I take it. You think it's unambiguous just as it read -- as it's read on its own.
04-5286 +++$+++ 25446 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that the date -- there's only one possible date that can be found in this language. Unless the Court felt that it had to completely rewrite it, there's only one date, the date on which the right asserted was initially recognized by this Court. And even if -- whatever problems the if clause have -- has, that may mean that this -- not very many people -- the worst it would mean is that not many people can take advantage of that date. But unless it's -- that date is -- there's something unconstitutional, which no one has suggested, about Congress picking that date and that limitations period for people who have had the chance to litigate things on direct review -- in any event, it had 1 year from the date their conviction became final. Unless there's something wrong with that, I think that the Court should follow the terms of the statute, and the time should run 1 year from the date on which the right was initially recognized.
04-5286 +++$+++ 25447 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Feldman. Ms. Bergmann, you have 6 minutes remaining.
04-5286 +++$+++ 25449 +++$+++ FALSE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Just several quick points. I'd like to start with the last point that Mr. Feldman made saying that there is only possible date under which the limitation period can run and -- and cautioning the Court about rewriting that date. What the Government neglects to mention is that it's asking this Court to rewrite the if clause by changing Congress' use of verb tense from a past tense to -- to something that could happen in the future. They want this Court to read that language contrary to Tyler, contrary to the use of verb tense and allow a district court to make a retroactivity decision at some time in the future in every case in which a motion is filed under paragraph 6(3). The second point I'd like to make is that the -- in situations such as this that involve these kinds of important rights, interests in finality are at an ebb. These are the types of rights where someone may well be innocent of the crime for which they are incarcerated, that involve important rights that go to the accuracy of the underlying adjudication. It seems to me in these circumstances, there is -- it is a situation where Congress' need or -- or the need of the courts to enforce finality to keep people in jail are at their lowest point. These are very special rights and Congress went to the trouble of drafting and enacting paragraph 6(3) and paragraph 8(2) to protect these rights. And -- and I think the Court should read them as broadly as possible in order to protect those rights. Justice Scalia asked a question about the difference between newly recognized and initially recognized. I wanted to go back to that for a minute. There are circumstances where a -- let me see if I can get this right -- where a -- a right may be newly recognized but not yet initially recognized. And I would -- I would point the Court's attention -- the decision in Penry. In Penry v. Lynaugh, this Court stated that if there was an Eighth Amendment bar to the execution of mentally retarded individuals, that would be a new right that would be retroactively applicable to collateral cases. But then the Court declined to initially recognize the Eighth Amendment right. It wasn't until Atkins was decided that the Eighth Amendment right was initially recognized. And so --
04-5286 +++$+++ 25450 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it didn't newly -- it didn't newly recognize it either, did it?
04-5286 +++$+++ 25451 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it -- it -- I would say that it -- it recognized that it was new and that seems to be the way the courts have interpreted --
04-5286 +++$+++ 25452 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It was -- it recognized that when it would be initially recognized, it would be newly initially recognized. (Laughter.)
04-5286 +++$+++ 25453 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor, but I would say that there would be no additional decision of this Court that would be necessary for -- for someone to conclude that all three provisions of paragraph 6(3) had been met.
04-5286 +++$+++ 25454 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I see your point.
04-5286 +++$+++ 25455 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought it could be, if you want to play games, there is an imaginary right to which Blackstone has referred 48 times. Yet, for some odd reason, that right has never come to the Supreme Court of the United States. But one day it does. It is a right of constitutional dimensions embedded in the law of stoppage in transitu. And although it's well recognized, we've never had a case. Finally, we get one, and it is initially recognized here, but it is not newly recognized for every treatise on stoppage in transitu has long assumed that it was part of the law of the United States. I don't know. That's what I thought it was.
04-5286 +++$+++ 25456 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, yes, Your Honor. There -- there are -- every time this Court issues a decision, someone could argue that it initially recognizes a right, and whether that right is new in the Teague sense or old --
04-5286 +++$+++ 25457 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I take it that what I've just said is of total irrelevance to everything. Is -- is that right? (Laughter.)
04-5286 +++$+++ 25458 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I disagree, Your Honor. I mean, there are circumstances where this Court initially recognizes rights, but then later on determines that they are not new, that they are indeed old. That happened in Simmons v. South Carolina. The Court recognizes -- recognized a right to present certain types of mitigation evidence in the penalty phase of a capital case, but then the Court later determined that that was not a new right. It was an old right in the Teague sense, and so it, therefore, applied retroactively because it was an old right but it did not newly recognize it at the time that it initially recognized it. And I'm sorry for the linguistic -- but it -- it is complicated.
04-5286 +++$+++ 25459 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not your fault.
04-5286 +++$+++ 25460 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm laughing at the statute, not at you.
04-5286 +++$+++ 25461 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. I just wanted to say in closing that -- that it is a difficult statute, but I think that Mr. Dodd's interpretation of the statute best respects Congress' use of tense and is consistent with the reading of paragraph 8(2) that this Court gave in Tyler. It also respects Congress' intention to create a specific exception for new rights that apply retroactively and by allowing for the realistic possibility of -- of success in either an initial or a second or successive motion premised on such rights. It also, as we've discussed, promotes judicial efficiency by eliminating from it frivolous motions because litigants would not file until it was clear that they actually had a right to collateral relief. In sum, this Court should conclude that the triggering date is when all three of the prerequisites have been met. In this case, that would be when the Eleventh Circuit decided Ross v. Richardson. I guess my -- my final concern is for my client. If the Court constructs a rule where the Supreme Court would have to be the court that makes the retroactivity decision, I hope the Court will consider the effect of such a rule on someone like my client who filed prematurely on -- in -- in hopes that at some point his arguably meritorious Richardson claim would be heard. Whether the Court decides that those premature filings should be dismissed without prejudice or if there's some kind of analysis the lower courts should take in resolving those claims --
04-5286 +++$+++ 25462 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How -- how is -- how does that work? I mean, can you explain that a little?
04-5286 +++$+++ 25463 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-5286 +++$+++ 25464 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose he did -- he hasn't violated the statute of limitations. He -- he filed it before a year ran from the time that we finally recognized it because we haven't even recognized it yet.
04-5286 +++$+++ 25465 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that would be my argument, Your Honor, that he was premature.
04-5286 +++$+++ 25466 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what is premature? What prevents a person from being premature? They just might lose on the merits of their claim is all, and he might anyway.
04-5286 +++$+++ 25467 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's -- that's if the Court would allow the retroactivity decision to be made in the -- on an initial motion by the district court in that particular case. Am I correct? Maybe I'm misunderstanding you, Your Honor.
04-5286 +++$+++ 25468 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. I -- I was the one who's having a problem. I -- I didn't see how your client would be hurt if we adopted Justice Stevens' --
04-5286 +++$+++ 25469 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the problem is that some lower courts have held that if you -- you file a motion that's untimely --
04-5286 +++$+++ 25470 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Ms. Bergmann.
04-5286 +++$+++ 25471 +++$+++ TRUE +++$+++ MS. BERGMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor.
04-5286 +++$+++ 25472 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The case is submitted.
04-5293 +++$+++ 25476 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument in Deck against the State of Missouri. Ms. Percival.
04-5293 +++$+++ 25478 +++$+++ FALSE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: The question before the Court today is whether the trial court violated Carman Deck's rights to due process and a fair and reliable sentencing proceeding, as guaranteed by the Sixth, Eighth, and Fourteenth Amendments, when the trial court forced him to appear handcuffed to a belly chain and shackled in legirons before the jury which would determine whether he was to live or to die. Counsel objected to the restraints and filed a motion asking for the procedures set forth by this Court in Holbrook v. Flynn. Holbrook described shackling as an inherently prejudicial practice and set forth a procedure by which courts would exercise their discretion in maintaining courtroom security while protecting the rights of the defendant. If the court is to impose an inherently prejudicial practice like shackling, it first must determine that the shackles are necessary to further an essential State interest specific to the trial and must find that no lesser means is available to meet those State interests. The court abused its discretion in failing to apply the Holbrook standard in penalty phase.
04-5293 +++$+++ 25479 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did the -- did counsel suggest less intrusive restraints?
04-5293 +++$+++ 25480 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Counsel had filed an extensive motion in which it set forth a number of different ways in which courts in Missouri and in other jurisdictions had dealt with the problem where the -- where the courts minimized the effect of the shackles on the jury by hiding them from view such as by placing boxes around counsel table, ensuring that the defendant was already in place in the courtroom before the jurors entered, that sort of thing. And the court summarily overruled that motion.
04-5293 +++$+++ 25481 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What was the basic justification in the first place for shackling? I mean, were there insufficient bailiffs or -- or why did they do it in -- even in -- during the trial itself?
04-5293 +++$+++ 25482 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The court did not establish a record for why the shackles were -- were warranted. The only justification that the court gave was -- at this penalty phase retrial was that Deck had been convicted, but there's nothing else in the record as to what justification the court had.
04-5293 +++$+++ 25483 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is there any indication that there were or were not present court security officers?
04-5293 +++$+++ 25484 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's nothing in the record as to security officers in the courtroom.
04-5293 +++$+++ 25485 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Who -- who should -- whose responsibility should it be to get something like that into the record? I mean, I read it. I don't -- I have no idea whether there was a good reason for the shackling or not.
04-5293 +++$+++ 25486 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Once defense conviction objects to the use of shackling, it is incumbent upon the State to show that the restraints were harmless, and by doing so, they would need to make a record that --
04-5293 +++$+++ 25487 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's the authority for the burden of proof question? What -- what -- which of our cases do you rely on for that?
04-5293 +++$+++ 25488 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's basically Chapman because shackling is an inherently prejudicial procedure, and when the court imposes that without justification, the burden falls on the State to show that it was, in fact, justified or that the shackling was -- was harmless and that the jurors could not see it or that sort of thing.
04-5293 +++$+++ 25489 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So the principle is there's a right not to be shackled, and when the State says that that right has to be compromised, then the State has to have the burden of proof?
04-5293 +++$+++ 25490 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-5293 +++$+++ 25491 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I looked -- and I find that rule in Chapman?
04-5293 +++$+++ 25492 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it would not be in Chapman. It would -- it's -- it flows from Holbrook and Illinois v. Allen and Estelle v. Williams. Those cases set up the standard that is really enunciated in Holbrook.
04-5293 +++$+++ 25493 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Those -- those are all, are they not, cases involving the -- the guilt phase of -- of a trial? Right?
04-5293 +++$+++ 25494 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-5293 +++$+++ 25495 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, this is a little different. He -- I mean, when you shackle somebody who hasn't yet been convicted, you -- you send a message to the jury that, you know, this -- this person belongs in irons. But the jury had already found this person guilty.
04-5293 +++$+++ 25496 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-5293 +++$+++ 25497 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ He was -- he was convicted.
04-5293 +++$+++ 25498 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and --
04-5293 +++$+++ 25499 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Should that make no difference?
04-5293 +++$+++ 25500 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The reason that this presumption applies in penalty phase as well, the presumption of -- that shackles are inherently prejudice, it stems from -- we could start the analysis in guilt phase. In guilt phase, courts have held that shackles are inherently prejudicial because they make the defendant appear --
04-5293 +++$+++ 25501 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Guilty.
04-5293 +++$+++ 25502 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- dangerous, violent, untrustworthy, and then hence, they are more likely to be guilty. Notably in -- in guilt phase, there's no question as to character. In penalty phase, however, where the State still has a burden of establishing that the defendant is worthy of a death sentence by evidence presented in court, the question of character is a key factor that the jury considers.
04-5293 +++$+++ 25503 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can -- can I ask you? You say counsel proposed some alternatives to -- to the visible shackling. Did counsel object that there shouldn't have been any shackling at all?
04-5293 +++$+++ 25504 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Counsel filed a motion saying that there should not be restraints at all, but within that motion, he explained how courts in Missouri had accommodated --
04-5293 +++$+++ 25505 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
04-5293 +++$+++ 25506 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- both interests successfully.
04-5293 +++$+++ 25507 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But he did take the position that there was no need for shackles at all.
04-5293 +++$+++ 25508 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, yes.
04-5293 +++$+++ 25509 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Back on your earlier part of your answer to Justice Scalia, that it's inherently prejudicial in the sentencing stage, if one of us were to agree or the whole Court, the majority, were to agree with your position and write the opinion out, what would we cite for that, other -- other than our -- our own assumptions as to how the system worked, judicial notice?
04-5293 +++$+++ 25510 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that you could follow Holbrook pretty closely and that I think what you'd need to -- to deal with is there's a whole bunch of precedent regarding how prejudicial shackling is. We know that character is essential in penalty phase, and the other characteristic of penalty phase is the heightened for reliability which is not present in the guilt phase.
04-5293 +++$+++ 25511 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ With -- with character, we know -- we know he's a murderer.
04-5293 +++$+++ 25512 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We know that on that day 7 years prior that Carman Deck was dangerous to those people in that situation. But what the jury is being asked to consider is whether his acts on that day were really in conformity with what his character is and what it -- how he would behave if he were sentenced to life without parole.
04-5293 +++$+++ 25513 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are you sure that it's as -- as prejudicial in the -- in the penalty phase as it is in the guilt phase? I mean, in the guilt phase, it does make the person look like a criminal. In the penalty phase, I -- I'm really not sure if I -- if I were a prosecutor whether I would prefer to have the defendant shackled or not. The issue before the jury is whether to leave this person in his -- in his current incarcerated state for life or to execute him. And I -- I might think that showing, you know, what -- what kind of an existence it is to be -- to be a life prisoner walking around with the legirons and chains -- I'm not sure that that is going to cut in favor of the jury's giving the death penalty or -- or to the contrary, make the juror think, boy, what a wretched life this is and -- and that ought to be enough.
04-5293 +++$+++ 25514 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, in Beck v. Alabama, a similar situation arose. In Beck, the question was whether Alabama's statute which prohibited the jury from getting lesser included offense instructions in a first degree murder case was constitutional. And Justice Stevens in his opinion writing for the Court stated that there may be factors that cut in favor of the defendant and factors that cut against the defendant, but the uncertainty and unreliability that is forced into the fact-finding process is what the problem is. So as in this situation, perhaps some jurors would -- would think, you know, he's wearing these shackles just because he was convicted. Others might -- may, as well, say he's wearing them because he's particularly dangerous. We don't know, and there's that unreliability of the -- the fact-finding process since the defense has not been able to confront this evidence and it hasn't come in from the stand.
04-5293 +++$+++ 25515 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What are the factors in Missouri that the State would be trying to prove to urge the imposition of death versus life imprisonment? What are the things in Missouri that are deemed relevant?
04-5293 +++$+++ 25516 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there are statutory aggravating circumstances, and the jurors are also allowed to consider non-statutory evidence.
04-5293 +++$+++ 25517 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is future dangerousness an issue in Missouri?
04-5293 +++$+++ 25518 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is not a specific aggravating circumstance, but it's something that is -- is certainly relevant and that the jurors can consider.
04-5293 +++$+++ 25519 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does your whole case turn on how shackling affects the argument that you're -- that the accused is making that he's not dangerous, et cetera, or is there some other different standard that we could use to the effect, say, that it's just not consistent with the dignity in an American courtroom, something like that?
04-5293 +++$+++ 25520 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-5293 +++$+++ 25521 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does your whole case turn on whether or not this is prejudicial to the fact-finding process on the specific issues or is there some more general standard?
04-5293 +++$+++ 25522 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there are certainly other considerations that shackling affects. Shackling impedes participation in the trial by affecting how the client can communicate with counsel and that sort of thing, how the jurors will gauge his demeanor, whether his mental faculties will be diminished through the shackling. Our argument here -- because counsel did not specifically object on grounds of right to be present, our argument here focuses on how the jury viewed the defendant, given the fact that he was in these -- this extreme form of restraints, and these extreme restraints were unjustified.
04-5293 +++$+++ 25523 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In the prison setting, does he wear such restraints? Justice Scalia suggested the jury might say, wow, that's the way he has to go around the rest of his life with the -- all chained up. But in -- do we know whether in the prison he would be routinely wearing these restraints?
04-5293 +++$+++ 25524 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, he would not be unless he was a very disorderly inmate or something like that, but I think most of the jurors would -- would know from seeing jail shows and jail movies that inmates are typically not restrained in that fashion so that --
04-5293 +++$+++ 25525 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's --
04-5293 +++$+++ 25526 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I mean, I think the --
04-5293 +++$+++ 25527 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- it's still an oppressive reminder of -- of how this individual, if sentenced to life, is -- is subject to -- to the orders of prison authorities which on some occasions will subject him to this kind of restraint. I -- once again, if I were a prosecutor, I'd rather have him dressed up in a nice, new suit and his hair combed and smiling. I would much prefer that to having him in shackles.
04-5293 +++$+++ 25528 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you aware of any cases in which prosecutors have objected to shackling?
04-5293 +++$+++ 25529 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I am not, Your Honor.
04-5293 +++$+++ 25530 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So Justice Scalia would have, I suppose, but he's unusual as a prosecutor I think. (Laughter.)
04-5293 +++$+++ 25531 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
04-5293 +++$+++ 25532 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I -- I think there is -- is something to the point that if I'm a juror and the defendant is sitting about as close to me as you are at the counsel table and I see that he can't suddenly jump out at me, I have a certain -- certain security in making a deliberated judgment. I -- I do think it may cut both ways. And that's why I'm asking you is if there are some other considerations here.
04-5293 +++$+++ 25533 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think -- I don't think there's other considerations other than, you know, this is penalty phase of a capital trial where we have to have the reliability of the fact-finding process. And the jurors are gauging the character of this defendant. And as you mentioned in your concurring opinion in Riggins, the jury is searching to discover the heart and mind of this defendant, and considerations such as character or future dangerousness are very important and may, in fact, be determinative of what sentence the defendant receives. Shackling a defendant basically places a thumb on death's side of the scale and dehumanizes the defendant, making it easier for the jury to find that he is worthy of a death sentence. The Holbrook standard that this Court established is a great standard. It has been in effect for -- for decades and it works. It is efficient and it is just as easily applied in penalty phase. Holbrook promotes the reliability of a death determination by limiting the risk that impermissible considerations will come into play. It also allows consideration of the individual circumstances of the case that is so crucial in the penalty phase. Holbrook --
04-5293 +++$+++ 25534 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let me ask you this. You, of course, would object to having to show prejudice in any individual case. Then it seems to me, to follow, that that's prejudice -- that that means because prejudice is difficult to show. And if prejudice is judicial -- difficult to show, why should we rule for you anyway?
04-5293 +++$+++ 25535 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because we are concerned with the reliability of the death sentence. If -- if shackles are inherently prejudicial in guilt phase where character isn't even at issue and that has a lesser standard of reliability, then they certainly are inherently prejudicial in the guilt -- in the penalty phase where the defendant's life is at stake. And as Justice O'Connor has recognized in her concurrence in the Eddings v. Oklahoma case, this Court goes to extraordinary measures to ensure that the defendant sentenced to be executed is afforded process that will guarantee, as much as humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake. Shackling opens the door to prejudice and mistake by giving the jury the impression that the defendant is particularly dangerous and therefore worthy of a death sentence.
04-5293 +++$+++ 25536 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is --
04-5293 +++$+++ 25537 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What do you make of the judge -- well, the jury, already having been polled, and every one of them said this would not affect our judgment?
04-5293 +++$+++ 25538 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court in Holbrook dealt with the same situation, and the Court in that case held that when a procedure presents such a probability of prejudice that it is inherently lacking in due process, little stock need be placed in jurors' claims to the contrary because jurors may not even be conscious of the effects that shackling will have. And at that point in the proceedings, the jurors had not been instructed as to what specific factors they would be looking at. They did not know that Missouri has four steps in their sentencing procedure. They did not know how this would play into it. So their response that they would not be affected really should have little bearing here.
04-5293 +++$+++ 25539 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose the judge had said this defendant has just been convicted of killing two people. He convicted them -- as the jury knows, he was convicted of having killed them because he wanted to avoid being sent back to prison. The jury may sit there and think, well, if he killed two people to avoid being sent back to prison and we've just voted him guilty, maybe he's going to try to lunge out in the courtroom and get us. And therefore, I want him shackled. Now, suppose the judge had said that. Would that be an adequate reason?
04-5293 +++$+++ 25540 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't think it would. I guess what you're saying is if the jurors believe that the shackling is done for their protection. Then that gives the jurors the idea that -- that this man is going to -- has done something to indicate --
04-5293 +++$+++ 25541 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I think you have to give that answer to Justice -- to Justice Breyer, and that's why I'm asking. I -- I think you just have to say that this is inherently inconsistent with the atmosphere we want to have in a courtroom. It seems to me -- I -- I'm not quite sure I can find a lot of authority for that, but it seems to me that has to be your argument.
04-5293 +++$+++ 25542 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it is.
04-5293 +++$+++ 25543 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, Ms. Percival, would you still be here today with this argument if the defendant had simply had shackles around his ankles that would have prevented him, in -- in effect, from running or lunging at anyone, but that that had been concealed by appropriate covers around the table where he was sitting so that the jury was unaware of that situation?
04-5293 +++$+++ 25544 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-5293 +++$+++ 25545 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you still be here --
04-5293 +++$+++ 25546 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I --
04-5293 +++$+++ 25547 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- making this argument that it's inherently prejudicial even though the jury couldn't see it?
04-5293 +++$+++ 25548 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would not be here arguing that if the court had gone to -- had -- had balanced both interests and had limited the risk that this impermissible factor would come into play. And in fact, at the first trial and penalty phase, Deck wore leg braces underneath his clothing and he behaved perfectly fine. It was only when he came back on --
04-5293 +++$+++ 25549 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That wasn't obvious or visible particularly to the jury.
04-5293 +++$+++ 25550 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it was not.
04-5293 +++$+++ 25551 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but then you're giving away the Riggins argument, which is that this somehow affects the psyche of the defendant and he can't fully participate, et cetera, which I thought was your argument.
04-5293 +++$+++ 25552 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that -- that is one of the problems with excessive shackling. I think with -- with leg braces -- there's -- there's a balance with -- with Holbrook. And the court is balancing the State's interests and courtroom security with the defendant's interest in a fair trial. The leg braces was an effective balance because it protected the courtroom security, but it also enabled Deck to be judged on -- just on the evidence presented in court and to have the freedom necessary to --
04-5293 +++$+++ 25553 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So can every defendant have leg braces in every case?
04-5293 +++$+++ 25554 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. No.
04-5293 +++$+++ 25555 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, is -- you -- you have -- Justice Kennedy alluded to one of your earlier arguments, and that is the -- somehow the -- the shackling affects the capacity to participate. I thought you meant by that if the -- the hands are shackled, he can't write notes to counsel. Do you mean something else?
04-5293 +++$+++ 25556 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there are two different angles on that. First, there's the ability to communicate with counsel, such as by taking notes. The other aspect is if the shackles are so distracting to the defendant or causing him pain that he will not be able to concentrate on what is going on at the trial to enable him to help his attorney and participate.
04-5293 +++$+++ 25557 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I -- I would grant you if -- if they -- they are so tight that it's causing pain, you've got a separate problem, but short of that, does the so-called capacity to participate suffer simply because he's -- he's in irons? I mean, the only participation that he's going to do, I presume, is -- is sit there and -- and communicate with his lawyer. It's going to affect his capacity to write a note to his lawyer. What else is it going to do?
04-5293 +++$+++ 25558 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the shackles are -- are very obvious, it might deter the defendant from coming to court in the first place, lest he be characterized as this dangerous person.
04-5293 +++$+++ 25559 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you know of any instance of that?
04-5293 +++$+++ 25560 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I cannot cite to any right now, Your Honor. But --
04-5293 +++$+++ 25561 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But he does have to stand up when the judge comes in --
04-5293 +++$+++ 25562 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, when the --
04-5293 +++$+++ 25563 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- and presumably when the jury files in.
04-5293 +++$+++ 25564 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. When the judge comes in, when the jury comes in, the defendant would stand up. And so --
04-5293 +++$+++ 25565 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But your -- your problem with that, as I understand it, is simply that at that point with all these chains and so on, he's giving an impression or the State is requiring him, in effect, to give an impression to the jury that may be a -- a false impression.
04-5293 +++$+++ 25566 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-5293 +++$+++ 25567 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
04-5293 +++$+++ 25568 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it is.
04-5293 +++$+++ 25569 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But back to participation.
04-5293 +++$+++ 25570 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It could also prevent him from testifying if he knows that he would need to walk from defense table up to the witness box.
04-5293 +++$+++ 25571 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that would be true if he were in the legirons.
04-5293 +++$+++ 25572 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- you're right, Your Honor. But there's other measures that the court could take to ensure that the defendant was in place at the witness box before the jury would come in.
04-5293 +++$+++ 25573 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ True, true.
04-5293 +++$+++ 25574 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But in this case the judge took no remedial measures. The judge was perfectly satisfied by the fact that the jury could see these restraints.
04-5293 +++$+++ 25575 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I gather there was some evidence or perhaps it's conceded that he was put on a suicide watch before his first trial. This was the second trial. Right?
04-5293 +++$+++ 25576 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. When --
04-5293 +++$+++ 25577 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That he had been put on a suicide watch and that he had tried to injure himself by knocking his head against the cell wall?
04-5293 +++$+++ 25578 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-5293 +++$+++ 25579 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What if -- what if the judge had specifically stated I'm putting him in irons because the man is -- is violent enough towards himself or others that I'm worried about the safety of the jury.
04-5293 +++$+++ 25580 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-5293 +++$+++ 25581 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What if the judge had said that?
04-5293 +++$+++ 25582 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay. That incident --
04-5293 +++$+++ 25583 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would that have been enough?
04-5293 +++$+++ 25584 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I don't think it would have been in this case because that incident had happened well prior to the first trial, and at the first trial, he was wearing the leg braces underneath his clothing and they sufficed. Deck was a perfectly calm, orderly defendant in the courtroom. There were no problems. And so there's two issues. There's the issue of whether the shackles were warranted and then whether the -- they were excessive. And these -- handcuffing him to a belly chain and forcing him to wear legirons were excessive. May I reserve the rest of my time, Your Honor?
04-5293 +++$+++ 25585 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, you may, Ms. Percival. Ms. Nield.
04-5293 +++$+++ 25587 +++$+++ FALSE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: The State of Missouri and Mr. Deck agree that the trial court needs discretion to fashion security measures such as restraints. That's particularly so in a case like this where we're talking about a penalty phase. Mr. Deck, at the time of his penalty phase retrial, had already been convicted, among other things, of two counts of murder. So by definition, he was a dangerous individual. In those circumstances --
04-5293 +++$+++ 25588 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, isn't -- isn't the question whether he -- he was dangerous in the courtroom?
04-5293 +++$+++ 25589 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is part of the question. That is true.
04-5293 +++$+++ 25590 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There's no question he was dangerous when he committed the murders, but -- but I don't know that that means he's dangerous in a courtroom.
04-5293 +++$+++ 25591 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that certainly suggests that he's dangerous right off. In terms of whether or not he's dangerous in the courtroom, there's other facts that are conspicuous upon this record.
04-5293 +++$+++ 25592 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, is there some burden on the part of the prosecutor and the court to consider at least alternative restraints or measures to make sure that there's no misbehavior?
04-5293 +++$+++ 25593 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There may be but prior to that, there -- there should be a burden on the defendant to, first of all, articulate that the restraints are visible and make a record on that. And second of all, to --
04-5293 +++$+++ 25594 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, apparently that was done. Do you say that there was no motion made by defense counsel and that alternatives were not proposed?
04-5293 +++$+++ 25595 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think I disagree with the characterization. There was a motion filed pretrial that contained a lengthy discussion of the law, which included discussion of various cases and alternatives to restraint that had been used. But that said, the motion itself is styled motion to have accused appear at trial free of restraints. The relief requested was that Mr. Deck should appear free of restraints both --
04-5293 +++$+++ 25596 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you -- do you take the position that every defendant can be restrained if the restraints are not visible to the jury?
04-5293 +++$+++ 25597 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it would depend on the nature of the restraints, but if the restraints are not visible --
04-5293 +++$+++ 25598 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Legirons strapped to the leg of the -- of the table but not visible.
04-5293 +++$+++ 25599 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. If not visible, then that would be fine.
04-5293 +++$+++ 25600 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why don't you limit it to double murderers anyway?
04-5293 +++$+++ 25601 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly that would be fine.
04-5293 +++$+++ 25602 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-5293 +++$+++ 25603 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but I want to know what your position is. Traffic offenders?
04-5293 +++$+++ 25604 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, it -- it depends upon the circumstances, but if they're not visible to the jury, the defendant has a difficult time --
04-5293 +++$+++ 25605 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the circumstances that you were given was a traffic offender.
04-5293 +++$+++ 25606 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A traffic offender who is restrained where it's not visible --
04-5293 +++$+++ 25607 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ With -- with non-visible restraints. Is that perfectly okay?
04-5293 +++$+++ 25608 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, it is. Yes, it is because if the jury doesn't see them, then --
04-5293 +++$+++ 25609 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's kind of an extreme position, isn't it?
04-5293 +++$+++ 25610 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true, but it points up the importance of making a record on the visibility. If they are not visible --
04-5293 +++$+++ 25611 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is --
04-5293 +++$+++ 25612 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But this -- this is given -- I mean, this is legirons. It's not leg braces. Belly chain. You don't need to make a record to -- to know that those things are visible. Is there any serious doubt that they were visible?
04-5293 +++$+++ 25613 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I think there was serious doubt and that's borne out by defense counsel's question to the voir dire. He said to the -- during the voir dire to the panel, you either do or will know that Mr. Deck is restrained, and I guess that's what happens when you're convicted. That's a rough paraphrase. But the either -- the part that he said, you either do or will know, that's a direct quote. So defense counsel himself was not even necessarily --
04-5293 +++$+++ 25614 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about his motion? Is Mr. Leftwich -- is that defense counsel?
04-5293 +++$+++ 25615 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ One of them. That's true. And there was a gentleman --
04-5293 +++$+++ 25616 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right, fine. He says I would ask that or like to move to strike the entire jury panel for cause because of the fact that Mr. Deck is shackled in front of the jury and makes them think that he is going to -- that he is violent today and going to do something in the courtroom. And I read that, he's saying, of course, they can see it.
04-5293 +++$+++ 25617 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, we --
04-5293 +++$+++ 25618 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That doesn't say he can see it -- they can see it?
04-5293 +++$+++ 25619 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's an allegation by counsel that that may be the case.
04-5293 +++$+++ 25620 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. So has anybody said -- he said, Judge, I would like you to get rid of this jury which happens to be looking at the shackles. Okay. Now, at that point, you have to do -- then isn't it up to the prosecution to say, what do you mean looking at them? They can't see them. They're hidden.
04-5293 +++$+++ 25621 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, recall at -- at this point the sequence is critical. By this time, defense counsel in his voir dire questioning had already let the cat out of the bag. Either you do or will know that he's restrained. But by --
04-5293 +++$+++ 25622 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, are you taking the position here that this record does not disclose that the belly chains and the handcuffs and the other restraints were not visible?
04-5293 +++$+++ 25623 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I'm taking the position that we don't know from this record that they were visible.
04-5293 +++$+++ 25624 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That there's nothing in the record to show that.
04-5293 +++$+++ 25625 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
04-5293 +++$+++ 25626 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you don't concede it.
04-5293 +++$+++ 25627 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do not. I do not concede it.
04-5293 +++$+++ 25628 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but your position would be precisely the same if the record made it perfectly clear that the jury could see everything, I think.
04-5293 +++$+++ 25629 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the test would be the same. That's --
04-5293 +++$+++ 25630 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-5293 +++$+++ 25631 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true.
04-5293 +++$+++ 25632 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So this is an alternative argument that you're making.
04-5293 +++$+++ 25633 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true.
04-5293 +++$+++ 25634 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the State of Missouri is submitting to us the proposition that every defendant in every case can be shackled so long as it's not visible. And I -- I find that an extreme position because it's an indignity on the defendant and the defendant is entitled to dignity in a courtroom.
04-5293 +++$+++ 25635 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, this points up the distinction in this case between guilt phase and penalty phase. And what we're talking about here and the rule that I am urging this Court to adopt relates to the penalty phase. And in the penalty phase, like Mr. Deck's, we have a person who's been convicted of murder. Now, in a guilt phase, certainly there are issues of presumption --
04-5293 +++$+++ 25636 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could he be forced to wear prison clothes once he's convicted and it's the sentencing phase?
04-5293 +++$+++ 25637 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think he possibly would be able to, yes. Yes, I do because prison clothes identify the defendant, and if a defendant is an escape risk, for example, that would identify the defendant in case he were to bolt from the courtroom, for example.
04-5293 +++$+++ 25638 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there's no for example here because the court said, in answer to the lawyer's objection -- the -- the lawyer says, it prejudiced him -- prejudices him toward the jury and it makes him look dangerous. The court's answer: the objection you're making will be overruled. He has been convicted and will remain in legirons and belly chain. The only thing that was relevant, according to the trial judge was he has been convicted.
04-5293 +++$+++ 25639 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is the only stated reason, that he has been convicted. I think what that means is he's a twice convicted murderer. Of course, he's dangerous. Further, there are reasons spread upon this record. And keep in mind the same judge from the penalty phase retrial has been with this case from the beginning. There are reasons spread upon this record that justify additionally the use of restraints against Mr. Deck.
04-5293 +++$+++ 25640 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why? He went through the entire guilt phase with the more moderate restraints, just the leg brace, and there was no incident. There was no disturbance in that trial. He didn't try to lash out at anyone. Why wasn't that the best example of what one could anticipate in the penalty phase?
04-5293 +++$+++ 25641 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What you state is true, but by the time of the penalty phase retrial, Mr. Deck's position, to paraphrase from Martinez v. Court of Appeal, had changed dramatically. He had already been convicted. Add to that he had already pursued his direct appeal through the Missouri Supreme Court.
04-5293 +++$+++ 25642 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is the fact of conviction critical for your point of view because it doesn't really matter if there's prejudice or that because there's no -- no danger of prejudice?
04-5293 +++$+++ 25643 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure I understand your question.
04-5293 +++$+++ 25644 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, do you concede that even though he had been convicted, it would, nevertheless, be prejudicial in the eyes of the jury to see a man shackled when one of the issues they'll have to decide is whether his future dangerousness might -- might justify his execution? Do you think there is prejudice there, or do you share Justice Scalia's view that it would be a good thing for the defendant?
04-5293 +++$+++ 25645 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it would depend. Some jurors might take away that the person --
04-5293 +++$+++ 25646 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if it depends, why would it not be appropriate to have a rule that the trial judge should be required to explain the basis for his decision?
04-5293 +++$+++ 25647 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly here it would have been simpler had the trial court been a little wordier, and that's not the case. That said, I think the test should be, looking back, has the trial court done something that's reasonable. And then to get into the prejudice issue, I think you have to look at the facts of this case. In terms of whether or not the restraint could prejudice Mr. Deck, one thing to look at is the defense that he offered in mitigation. His defense in mitigation was not that he was not a dangerous individual. It was not that these murders were an aberration --
04-5293 +++$+++ 25648 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but would you not agree that it's always of relevance to a jury in deciding whether the -- the man should be executed, is how dangerous is this guy?
04-5293 +++$+++ 25649 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, certainly juries can consider that, and jury case law is in accord. But on the facts of this case, Mr. Deck's defense in mitigation was not that he was a safe individual or, again, that the murder of these two people was an aberration in an otherwise saintly life. That's not the case. The mitigation defense was that he did these horrible things. He is some -- a nefarious individual, but that he should not be sentenced to death because that wasn't his fault. It was his parents' fault. They had done a poor job in raising him. He had suffered difficult circumstances growing up. So there's simply no intersection between the mitigation defense offered here and whatever the jury might take away that might be negative from the fact that he was restrained.
04-5293 +++$+++ 25650 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the fact --
04-5293 +++$+++ 25651 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could they put him in a cage?
04-5293 +++$+++ 25652 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Could they put Mr. Deck in a cage? I don't think so. Could they put --
04-5293 +++$+++ 25653 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He's -- he's been convicted. We know he's dangerous.
04-5293 +++$+++ 25654 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-5293 +++$+++ 25655 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems to me your argument is much like arguing on the merits of the -- at the original trial that his defense was alibi or something like that, therefore you don't have to worry about the prejudice that arises from the restraints.
04-5293 +++$+++ 25656 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think in the penalty phase, we're looking at reliability. And -- and the bottom line is restraining somebody who's twice been convicted of murder is not in any way unreliable or misleading.
04-5293 +++$+++ 25657 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but the bottom line from the other point of view is that shackles are always prejudicial, and you try to have the scales evenly balanced when you're deciding whether the man should die or not.
04-5293 +++$+++ 25658 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In terms of making that decision, it's important to remember that Missouri has procedures in place to channel, at the front end, the jury's decision whether or not to impose death. Among those are aggravating circumstances. And in this case the aggravating circumstances did not relate at all to dangerousness or future dangerousness. In fact, in Missouri --
04-5293 +++$+++ 25659 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the -- the stated aggravating circumstances didn't, but the point of -- one point of the argument is that by shackling the man in -- in this complete and visible way, you are creating the impression that no one could fail to -- to perceive that this guy is so dangerous that they can't even depend upon courtroom security either to protect him from the -- protect the jurors or courtroom personnel or to prevent escape. That -- excuse me. That may not be a verbal argument about dangerousness, but it seems to me that it is an unmistakably visible one. What is your response to that?
04-5293 +++$+++ 25660 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Two responses to that. In terms of the dangerousness, again, this jury in particular knew that Mr. Deck had been convicted of murder. They knew that the choice they faced was both stark and very serious: life without probation or parole or death. And so to present Mr. Deck in restraints could hardly come as a shock. To the contrary, it might be confusing and cause consternation to have a twice-convicted murderer sitting at counsel table no more restrained than counsel or the people in the courtroom.
04-5293 +++$+++ 25661 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do we know why the judge apparently changed his mind? Because if I remember correctly, at the pretrial hearing, the court said that the defendant would be allowed to, A, wear his own clothes and, B, to have leg braces underneath for security. And then sometime after that pretrial hearing, the judge apparently changed his mind. Do we know what triggered that?
04-5293 +++$+++ 25662 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We -- we do not. There is no record of any such pretrial hearing. The only way we know about that is from allegations in the motion for new trial. So there is -- there is no record on that at all. If possible, I'd like to get back to the cage question, Justice Kennedy, that you posed. That's a -- that's an extreme form of restraint. Could that ever be used in a case? It's possible. But then I think we get into questions of whether or not the trial court's action was reasonable. And in looking at reasonableness, we can consider are there other perhaps less visible, less dramatic forms of restraint that might do the job equally well. That's not to say, however, that a --
04-5293 +++$+++ 25663 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, how about the ones that were used on Mr. Deck during the trial? Was that an alternative that was reasonable?
04-5293 +++$+++ 25664 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it was an alternative in this case, and the defense didn't proffer, at the time of the objection, anything that they thought that might be less. And I think the trouble comes in here -- again, I don't believe a least restrictive alternatives approach is appropriate, but when you talk about least restrictive, I think it's sometimes difficult to tell what is less restrictive than something else because not all restraints --
04-5293 +++$+++ 25665 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, in part it depends on whose burden it is. Is it the burden of the State, if they're going to use shackles, to somehow establish that it's needed?
04-5293 +++$+++ 25666 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think --
04-5293 +++$+++ 25667 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or do you take the position that they're free to impose shackles in every case, even a traffic offense, if the prosecutor wishes to do it, without any justification? That's your position apparently.
04-5293 +++$+++ 25668 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think if it's non-visible restraints --
04-5293 +++$+++ 25669 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that right?
04-5293 +++$+++ 25670 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I don't think that's --
04-5293 +++$+++ 25671 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that your position?
04-5293 +++$+++ 25672 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I don't think that's precisely right.
04-5293 +++$+++ 25673 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No?
04-5293 +++$+++ 25674 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think if it's non-visible restraints, we have a non-issue. If the jury doesn't see it, it doesn't really matter. That's -- that's --
04-5293 +++$+++ 25675 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's not my question, and -- and it relates to what is the burden of the State in these situations to use the visible restraints?
04-5293 +++$+++ 25676 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The burden is for the State to show that the restraints were reasonable, were not completely out of proportion --
04-5293 +++$+++ 25677 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And where in this record do I find that the State carried that burden --
04-5293 +++$+++ 25678 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The record --
04-5293 +++$+++ 25679 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and that there was a finding by the trial judge on it?
04-5293 +++$+++ 25680 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was not a finding per se, but the facts of this case, spread upon the record, support the use of restraints in this case.
04-5293 +++$+++ 25681 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could you point me to places in the record where it supports your position on the use of the visible restraint?
04-5293 +++$+++ 25682 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Mr. Deck had an aiding escape conviction that was presented to the jury. There was the attempted escape that Justice Scalia referred to. Or excuse me. He referred to the -- the suicide --
04-5293 +++$+++ 25683 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Had that not occurred before he was even tried?
04-5293 +++$+++ 25684 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That had, yes. Yes, that's true.
04-5293 +++$+++ 25685 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what were the facts of the aiding escape? Was he trying to get away or was he helping somebody?
04-5293 +++$+++ 25686 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He was assisting somebody.
04-5293 +++$+++ 25687 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, what did he do? Draw a map or what? (Laughter.)
04-5293 +++$+++ 25688 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He -- he had a saw blade and he assisted these other individuals in sawing their way out. So there's that, both a conviction --
04-5293 +++$+++ 25689 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which really has very little probative value on this issue. I mean, the fact that he tried to saw his way out of a cell hardly speaks to the risk of fleeing from the courtroom while the proceedings are going on.
04-5293 +++$+++ 25690 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I must disagree. I think if he's aiding other people in escape, he himself tried to remove the glass from the window when he was held in jail prior to trial by removing the caulking. If he is willing to escape in those circumstances, what's to say he's not willing to escape in the Jefferson County courtroom?
04-5293 +++$+++ 25691 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So we already know that -- that that effort was made before he was tried in the guilt phase.
04-5293 +++$+++ 25692 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true.
04-5293 +++$+++ 25693 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And whatever inference you might draw, it didn't prove out. So it seems to me the -- the closest in time is the -- and -- and in fact is the episode he's just been through, the trial episode. So why wouldn't that be -- the -- the judge would start with that in mind. Well, I tried this man and he didn't give me any problems, so I have no reason to anticipate problems now.
04-5293 +++$+++ 25694 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true. But again, we also have the fact that he had -- between the initial penalty phase and the penalty phase retrial, Mr. Deck had pursued his direct and post-conviction appeals. They had not been successful on the issue of guilt. The issue of guilt is done. He's a twice-convicted murderer. And he knew that at that time. Furthermore, we have the fact that the first jury in the penalty phase found one of the six aggravating circumstances -- actually they found all, but one of them was that Mr. Deck killed in order to avoid lawful arrest. He has 12 convictions on his record, and at the time that he killed the Longs, he knew that if I leave witnesses and they can identify me and I go to prison for breaking into their house and stealing money, I will not be leaving prison. So that was a factor as well. That was a factor as well.
04-5293 +++$+++ 25695 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If -- if there are some factors that favor putting him in shackles and I guess others might not, what's the argument that the judge shouldn't at least have to make a finding?
04-5293 +++$+++ 25696 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, the question is reasonableness. We don't have a finding here, and it would certainly have been helpful. But --
04-5293 +++$+++ 25697 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, you know, I realize you want to save the conviction and the penalty, but if you look at the mine run of cases, it's pretty hard for me to see how the State could show special circumstances and they not get a finding from the judge that they're right.
04-5293 +++$+++ 25698 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't --
04-5293 +++$+++ 25699 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's pretty hard to see an argument against it.
04-5293 +++$+++ 25700 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't --
04-5293 +++$+++ 25701 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I know that hurts your case, but I -- I still need to think of some argument or reason why the judge shouldn't have to at least make a finding.
04-5293 +++$+++ 25702 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. Findings would certainly be helpful, but again, the question is whether or not what the trial court did is reasonable, not if what he did was perfect. If conspicuous on this record, we have factors like an attempted escape, aiding others in escaping, the fact that he killed to avoid lawful arrest, the fact that between his initial penalty phase and the retrial he had pursued his remedies. With all these facts, can we really say that the trial court was on the side of unreasonableness versus reasonableness? Do we have to wait for Mr. Deck to actually have an outburst? Or it could be something where it's an -- an issue of the spectators in the courtroom. There could be many things. It could be an issue of what the particular confines of the Jefferson County courthouse are and whether or not it's set up in such a way as to avoid escape and things of that nature.
04-5293 +++$+++ 25703 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ With a -- with a blank record -- the -- the State is going to restrain someone and it may be necessary, it may be not, and if the State has the burden, then why shouldn't a reviewing court speculate on what might have been when the only thing that was -- appears of record is he's been convicted and will remain in legirons? The only reason the court gave is that now things have changed. He's no longer in the guilt phase where he enjoys the presumption of innocence. He has been convicted and, therefore, we can keep him in chains. There's nothing situation-specific about it. The judge seems to be saying once a person is convicted, at least of murder, it's fair game. It's -- it's permissible to keep him in legirons and shackles.
04-5293 +++$+++ 25704 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's what the court said here. However, it's important to remember that the defendant has a burden to establish a constitutional violation. And further, the colloquy of the court and counsel was such that counsel said, look, these restraints make him look dangerous. And the court, by saying he's been convicted, said, well, he is dangerous. Now, if there were other objections to the restraints, for example, that he was unable to communicate with counsel because his hand was not free and he couldn't write notes or if the restraints were causing him pain or if the restraints, the way they were set up, were causing him to have difficulty facing the jury perhaps --
04-5293 +++$+++ 25705 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Ms. Nield, is -- is the State making a harmless error argument here? I really couldn't tell from your brief whether you're doing it or not. Are -- are -- is the State asserting that assuming it -- assuming it was wrong, assuming it was a violation, this jury would have -- would have come out the same way anyway?
04-5293 +++$+++ 25706 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. That's true.
04-5293 +++$+++ 25707 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why is that?
04-5293 +++$+++ 25708 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ First of all, again, the defense in mitigation was essentially that Mr. Deck is dangerous, but we ought to spare him the penalty of death because of his poor upbringing. And that defense in mitigation does not intersect or have any sort of nexus with any sort of presumptions that jurors might draw.
04-5293 +++$+++ 25709 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What -- what specific aggravating circumstances did they jury find? You say there are statutory aggravating circumstances in Missouri.
04-5293 +++$+++ 25710 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-5293 +++$+++ 25711 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And the jury found -- there are five.
04-5293 +++$+++ 25712 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There were --
04-5293 +++$+++ 25713 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And the jury found all five.
04-5293 +++$+++ 25714 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Actually there were six --
04-5293 +++$+++ 25715 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Six.
04-5293 +++$+++ 25716 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that were pled in this case and the jury found all six. And they are as follows. The murders were each committed while he was engaged in another homicide. He murdered each victim for the purpose of receiving money. Both murders involved depravity of mind. Each murder was committed for the purpose of avoiding lawful arrest. Each murder was committed while Mr. Deck was engaged in the perpetration of a burglary, and each murder was committed while Mr. Deck was engaged in the perpetration of robbery. So, again, none of these factors -- there's no nexus between these factors, which are really implicit in the guilt finding -- no nexus between these aggravating circumstances that render Mr. Deck death-eligible and any sort of dangerousness that the jurors might take away from the fact that he was restrained. Once you get past the death-eligibility hurdle with the aggravating circumstances, then comes the Eighth Amendment concerns about reliable and accurate sentencing in the selection decision, the decision that's one of a moral nature of whether this person should be put to death. And on that front, again, restraining somebody who's twice been convicted of murder is not inaccurate, it is not unreliable, it's not misleading in any way.
04-5293 +++$+++ 25717 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So -- so it's never ground for reversal? I'm -- I'm wondering, in line with Justice Scalia's question, is -- is -- would the calculus be, well, this is not a close case and some other cases are closer? I mean, is that what we do?
04-5293 +++$+++ 25718 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think --
04-5293 +++$+++ 25719 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your -- your -- I -- I think first position at least would be that it's never prejudicial. But assume we don't agree with that.
04-5293 +++$+++ 25720 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think --
04-5293 +++$+++ 25721 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How does harmless error work to -- to pursue Justice Scalia's line of questioning?
04-5293 +++$+++ 25722 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think in terms of harmless error, that would be our second position, but the first position here is that a constitutional violation has not been established.
04-5293 +++$+++ 25723 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I understand that.
04-5293 +++$+++ 25724 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And where that's the case, you look at the totality.
04-5293 +++$+++ 25725 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But answer his question. Give him an example of where it -- it wouldn't be harmless error.
04-5293 +++$+++ 25726 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Where it wouldn't?
04-5293 +++$+++ 25727 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Assuming that it is a violation, what's an example of where it wouldn't be harmless error?
04-5293 +++$+++ 25728 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ An example of where it might not be harmless error is where the defendant's defense in mitigation is focused specifically on dangerousness or future dangerousness. For example, if the defense in mitigation is I committed these murders, but I'm very sick now, I'm feeble, I'm not going to pose any sort of threat to anybody inside or outside the prison walls, if the defense in mitigation relates to danger. Or, for example, if the defense in mitigation was that while incarcerated, the person had found religion and realized the error of his or her ways and was no longer inclined to do these things and felt remorse, that again might relate.
04-5293 +++$+++ 25729 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Or I suppose if future dangerousness was a specific aggravating factor under State law, as it is in Texas, for example --
04-5293 +++$+++ 25730 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. That would make a difference.
04-5293 +++$+++ 25731 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- then -- then you would concede that if this was unlawful, the error clearly would not be harmless.
04-5293 +++$+++ 25732 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That could certainly make a difference there. That's correct. Or another example of where the defense in mitigation might intersect more with the dangerousness issue. In the Simmons line of cases, in one of the cases the defense was that the particular defendant had a proclivity for attacking elderly women and that was the nature of his crime. But in prison there were no elderly women, and so he would not pose a danger to anyone outside the prison walls if incarcerated for life, nor would he pose a danger to other prisoners because they were not elderly women.
04-5293 +++$+++ 25733 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought the question here was, was he dangerous in the courtroom? Was he going to lash out at a witness or try to --
04-5293 +++$+++ 25734 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's the question when the trial court looks at the restraints issue, but Mr. Deck is saying that this impaired the reliability of his sentencing under the Eighth Amendment. And there, we do look at these other kinds of issues. It's not whether he would be dangerous in the courtroom. That's the trial court decision at the front end under the Eighth Amendment, and when we look at reliability, is this something that is going to impel the jury to impose a death sentence based upon whim or caprice or arbitrariness. And we would submit that it is not. Again, to restrain somebody who's convicted of killing not one, but two people, to do that does not send the jury irrevocably down the path of giving death. And that points up the prosecutor's argument in this case.
04-5293 +++$+++ 25735 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If he -- if he were kept under these restraints, legirons and the -- what do they call it -- belly chain, day in and day out in prison, would that constitute cruel or unusual punishment?
04-5293 +++$+++ 25736 +++$+++ TRUE +++$+++ MS. NIELD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could. It could. And it would depend upon the prison security. The difference being, in prison, he's already confined versus outside the prison walls. It -- it could present a problem. In one of the Spain cases, the -- the neck restraint was deemed to be cruel and unusual, and particularly if it's ongoing, if it's -- if it occurs for a lengthy period of time. But, of course, we don't have that here and we have not a prison context but a context of a local, rural courtroom where the trial judge has to make sure that the people in that courtroom, the personnel, the spectators, the jurors, that they are safe. And we would submit that under the facts of this case, that that trial court's decision was not unreasonable. The Missouri Supreme Court was correct in its analysis and it should be affirmed.
04-5293 +++$+++ 25737 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Nield. Ms. Percival, you have about 4 and a half minutes left.
04-5293 +++$+++ 25739 +++$+++ FALSE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor.
04-5293 +++$+++ 25740 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Could -- could you comment on whether or not there's harmful error here?
04-5293 +++$+++ 25741 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. This constitutional violation was not harmless for a number of reasons. For one, character was the key consideration in the jury's analysis of whether this person should live or die. The court is saying that even 7 years after this crime occurred, that Carman Deck is so dangerous that he needs to be in both belly chain and legirons to keep the courtroom safe, to keep him there. The court is saying that he's dangerous in the courtroom, that he remains dangerous and therefore he --
04-5293 +++$+++ 25742 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you asking us to say that in light of six aggravating factors on which he was convicted, the result likely would have been different?
04-5293 +++$+++ 25743 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I am, Your Honor. And that's because there's -- that is the -- just the first step of the Missouri procedure. The jury then goes to step two, by which they look at both statutory aggravators and nonstatutory aggravators to decide whether death is warranted. At step three, they then weigh the mitigation against the aggravation. The Missouri Supreme Court itself in the first appeal stated that Deck had presented substantial mitigation about his horribly abusive childhood. And it's not accurate that the defense was only related to his -- his childhood. In closing arguments, defense counsel repeatedly argued that Deck deserved to be in prison because of what he had done, but that he would be safe in prison. There would be no risk that he would hurt anybody else. So that was part of the defense strategy. These restraints were --
04-5293 +++$+++ 25744 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That was at this trial or at the first trial, that --
04-5293 +++$+++ 25745 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This trial. He made that argument at this trial. These restraints were visible throughout the trial. There were 15 recesses, at which time Deck would have had to stand up when both the jurors leave the court and come back in. The shackles dehumanized Deck and it degraded the dignity of the courtroom. Prison clothing does not relate to character, and shackles directly relate to character, which is so key in the death analysis. It was not reasonable to impose these excessive restraints after Deck had behaved appropriately at -- at numerous proceedings prior to this. And for these reasons, we would ask the Court to find that there was a constitutional violation --
04-5293 +++$+++ 25746 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask one quick question?
04-5293 +++$+++ 25747 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure.
04-5293 +++$+++ 25748 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does the record tell us how big he was?
04-5293 +++$+++ 25749 +++$+++ TRUE +++$+++ MS. PERCIVAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it does not, Your Honor. Sorry.
04-5293 +++$+++ 25750 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. The case is submitted.
04-5462 +++$+++ 25754 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We will now hear argument in 4 Rompilla against Beard. Mr. Nolas.
04-5462 +++$+++ 25756 +++$+++ FALSE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Justice Stevens, and may it 9 please the Court: Profound mitigating evidence concerning Mr. 11 Rompilla's life history was not heard by the capital 12 sentencing jury in this case because his trial counsel did 13 not secure a single scrap of paper about his life history. As to the trial prosecutor, his argument, what 15 he elicited from the defense witnesses, and what he 16 presented affirmatively sent the message to this jury of 17 future dangerousness. When the jury inquired whether in Pennsylvania 19 there is parole from a life sentence, they were not given 20 the simple, straight answer that Pennsylvania law clearly 21 indicates, no. Instead, they were told -- instead, their 22 question was not answered. What I would like to do, unless the Court has 24 specific inquiries, is to make certain points about the 25 ineffectiveness issue and then turn to the sentence issue. As to the ineffectiveness issue, Your Honors, 2 this Court has made very clear in Williams v. Taylor, in 3 Wiggins v. Smith, reiterating the concept established 4 originally in Strickland v. Washington, that a trial 5 defense counsel has a duty to conduct a thorough 6 investigation for mitigating evidence in a capital case.
04-5462 +++$+++ 25757 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you're asking us, I 8 suppose, to make a rule that you have to get paper 9 records. We've seen a number of capital cases, you know 10 -- as you know. This counsel seemed to me to be quite 11 articulate and -- and had a very sound theory of -- to 12 argue to the jury for mitigation. It didn't work, of 13 course. I -- I just don't know what constitutional rule 14 you want to ask us for, that you have to look at record 15 evidence?
04-5462 +++$+++ 25758 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We are not asking the Court to set a 17 constitutional rule that a capital defense counsel must 18 obtain records in every capital case. We are asking this 19 Court to apply the rule articulated in Strickland v. 20 Washington itself where the Court indicated that counsel 21 has a duty to make a reasonable investigation.
04-5462 +++$+++ 25759 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you had three forensic 23 experts, outside experts, and they didn't seem to think 24 the papers were relevant either.
04-5462 +++$+++ 25760 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. And as to the 1 experts themselves -- and that's actually -- the experts 2 and the family are the core of respondent's argument 3 against Mr. Simmons' claim. The simplest answer is to look at Wiggins v. 5 Smith where this Court held very clearly that the 6 retention of mental health experts sheds no light on the 7 reasonableness of counsel's life history investigation. 8 That is especially appropriate in this case because in 9 this case the counsel who had contact with the experts 10 testified very clearly at the post-conviction hearing that 11 the experts were never asked -- never asked -- to develop 12 life history mitigating evidence. And as my friend, Ms. 13 Zapp, indicates in her brief at page 43, there was no 14 tactical decision in this case by counsel to not pursue 15 life history mitigating evidence.
04-5462 +++$+++ 25761 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, counsel -- counsel did 17 make use of several relatives of the defendant who 18 testified. I -- I think weren't there about four 19 relatives who testified?
04-5462 +++$+++ 25762 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, including his son.
04-5462 +++$+++ 25763 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And he talked to all of them 22 and talked to the defendant as well. So would a 23 reasonable person think that's enough to find out family 24 history and -- and the concerns that you had?
04-5462 +++$+++ 25764 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court made very clear in 1 Strickland and Williams and in Wiggins that an assessment 2 of counsel's representation must be done from counsel's 3 perspective at the time. Counsel's perspective at the 4 time, as Ms. Dantos clearly testified at the hearing, was 5 that the family were not good sources of information for 6 petitioner's life history. She gave three reasons for 7 that. She said, number one, whenever life history was 9 pursued with them, they did not want to deal with it 10 because they thought he was innocent. Number two, whenever they were --
04-5462 +++$+++ 25765 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That -- that seems to me an -- 13 an extraordinary non sequitur. I don't understand. They 14 didn't want to deal with it because they thought he was 15 innocent. I -- how does that make any sense?
04-5462 +++$+++ 25766 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that's what she testified 17 to, Your Honor. I'm not --
04-5462 +++$+++ 25767 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What she testified to makes no 19 sense.
04-5462 +++$+++ 25768 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ She gave a second reason which was 21 that counsel, when they pursued life history mitigation, 22 the family would respond, we hardly know him. He was in 23 juvenile facilities as a youth, and then he was in prison 24 as an adult. We don't have any knowledge of his life 25 history.
04-5462 +++$+++ 25769 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the -- the portions of 2 his life history that -- that are the most appealing are 3 the portions from his youth, before he went into the -- 4 into the juvenile institutions, and they were certainly 5 with him during that period.
04-5462 +++$+++ 25770 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And third and most significantly, 7 Justice Scalia, she testified that they were not willing 8 to provide life history mitigating -- facts about his life 9 history because of, quote, whatever else was going on with 10 them, unquote. Or as Mr. Charles, the other attorney, put 11 it, these were not the type of family that would provide 12 information when asked. Bear in mind, both of these counsel knew what 14 the respondent's post-conviction rebuttal psychologist 15 testified to, that when you're dealing with abuse, 16 neglect, a dysfunctional home, people don't want to talk 17 about that. They want to withhold that.
04-5462 +++$+++ 25771 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let me -- let me take you back 19 to the -- to the experts. You say he did not specifically 20 ask the experts to go -- to go into his childhood 21 problems. You know, I can imagine when the expert comes 22 on the stand, the first question being asked is, now, Mr. 23 Expert, were you told by counsel to look into the 24 childhood problems? You know, as though counsel were 25 planting in the expert's mind what the expert should say. 1 What would anyone who hires a psychologist or a 2 psychiatrist -- what would anyone expect him to look into 3 in -- in determining whether the person is -- is mentally 4 injured but -- but the childhood? Do you really think 5 counsel could not have expected with total assurance that 6 these people would do that?
04-5462 +++$+++ 25772 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure, because counsel themselves 8 testified to that at the post-conviction hearing and the 9 experts themselves said -- now, let me --
04-5462 +++$+++ 25773 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Nolas?
04-5462 +++$+++ 25774 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-5462 +++$+++ 25775 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wasn't it the case that those 13 experts were hired not primarily or even secondarily for 14 mitigation purposes? They were hired in connection with 15 the possibility of a defense at the guilt stage, number 16 one, that he was insane at the time he committed the 17 crime, in which case what he was when he was a child would 18 be irrelevant, and number two, that he was presently 19 incompetent to stand trial. So they were asked 20 specifically to inquire into his present mental situation, 21 and their testimony was relevant to the guilt phase of the 22 trial. So that's the instruction. Naturally they -- what 23 -- why are we engaging you? We're engaging you to tell us 24 do we have a basis for an insanity plea, do we have a 25 basis for an incompetent to stand trial plea.
04-5462 +++$+++ 25776 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, and the -- the 2 respondents use the word mitigation that Ms. Dantos used 3 in her testimony. I only ask the Court to look at the 4 joint appendix at page 472 where Ms. Dantos says very 5 clearly, I explained to them the purpose for my contacting 6 them, and the purpose was to initially see if there was 7 any issue of mental infirmity or mental insanity for the 8 guilt phase and subsequently to possibly use in mitigation 9 any mental infirmity if it -- if the jury came back first 10 degree.
04-5462 +++$+++ 25777 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was there any indication that 12 after the guilt phase was over and before the sentencing 13 phase began -- I take it it was just a matter of hours or 14 almost days till the sentencing -- till the sentencing 15 phase began. Was there any contact with the psychiatrists 16 or with experts after the sentencing phase and the -- 17 pardon me -- after the guilt phase and before the 18 sentencing phase?
04-5462 +++$+++ 25778 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. The record is very 20 clear that the experts were asked, as Justice Ginsburg 21 indicated, about mental infirmity at the time of the 22 offense. They reported back that they could provide no 23 assistance in that regard, and then there was not further 24 contact with them. They were also asked about competency, 25 which is not at issue before the Court. The -- the key thing to bear in mind is you can 2 look through Ms. Dantos' entire testimony and look -- you 3 could look through Mr. Charles' entire testimony at the 4 hearing. Nowhere do they say we asked the experts to 5 develop life history mitigating information. This isn't 6 the case where the lawyers say to the doctor, Doctor, I'm 7 looking into this man's life history, go investigate it. 8 Tell me what there is. Tell --
04-5462 +++$+++ 25779 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought what you just quoted 10 said that they -- that they would intend it to be used in 11 the mitigating phase.
04-5462 +++$+++ 25780 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mental infirmity at the time of the 13 offense at the penalty phase, not life history mitigation, 14 not how did he do in school, was there abuse in the home, 15 was there neglect in the home, was their mistreatment in 16 the --
04-5462 +++$+++ 25781 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Doesn't -- doesn't all that 18 bear upon mental infirmity at the time of the offense? 19 Isn't the reason that -- that one considers these factors 20 mitigating is that they reduce the guilt at the time of 21 the offense? I -- I thought that that's the whole --
04-5462 +++$+++ 25782 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. That is -- with all 23 due respect, that is too constricted a view of what --
04-5462 +++$+++ 25783 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We -- we just let him off 25 because we're -- we're sympathetic to his present state? 1 I thought that mitigation means that it reduces the guilt 2 of the offense at the time that he commits it.
04-5462 +++$+++ 25784 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's -- it's not let him off, Your 4 Honor. It's a -- a request to the jury, that was out for 5 over 12 hours, that this man receive a life sentence. And you've already resolved this issue in 7 Wiggins v. Smith. In Wiggins v. Smith, counsel hired a 8 mental health expert, provided that expert 200 pages of 9 DSS records, provided a PSI, had the expert interview all 10 of Mr. Wiggins' family members, had the expert report back 11 on, quote/unquote, mitigating evidence, and this Court 12 found that counsel had failed to provide reasonably 13 diligent effective assistance because counsel had not 14 developed life history mitigating evidence.
04-5462 +++$+++ 25785 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Nolas, you haven't 16 mentioned it, but didn't one of the three experts suggest 17 that there be a -- a follow-up inquiry into the -- the 18 abuse of alcohol by the defendant?
04-5462 +++$+++ 25786 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Dr. Gross suggested that there be a 20 follow-up inquiry into -- into alcohol, and that --
04-5462 +++$+++ 25787 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ My understanding is that 22 nothing was done in response to that. Is that correct?
04-5462 +++$+++ 25788 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In response to that, the reasonable 24 thing would be why did this man's parole records indicate 25 that he should abstain from alcohol. Let's look into his 1 alcohol history. And to back to -- to your question, Justice --
04-5462 +++$+++ 25789 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which -- which you're saying 4 they did not do. I mean, just to get it --
04-5462 +++$+++ 25790 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They testified that what they did 6 they asked -- they asked the other experts to look into 7 it. And bear in mind, all of the experts in this 9 case had less than the expert in Wiggins. All of the 10 experts in this case had less than the expert in Williams. 11 What these lawyers gave the expert is a client that they 12 themselves said is not a reliable source of information, a 13 client who did not want to discuss his life history, a 14 client who misled counsel, a client who these lawyers said 15 we can't rely on -- on this fellow.
04-5462 +++$+++ 25791 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Nolas, there were some 17 records that the prosecution sought and used. Was it -- 18 the records that were in the very courthouse.
04-5462 +++$+++ 25792 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, and that was, I 20 guess, the simplest way to respond to Justice Kennedy's 21 original question, which is what is the duty that these 22 lawyers have. Well, at its simplest, in Wiggins this 23 Court said counsel has a duty to conduct a thorough 24 investigation for mitigating evidence, a thorough 25 investigation into the aggravation. The trial prosecutor 1 tells these counsel, I'm going to use that information in 2 that file against your client. The file was maintained in the same courthouse 4 in which this case was tried. Counsel never goes and 5 looks at that file. When the prosecutor brings it to the 6 penalty phase, they complain, we've never seen this file 7 before. In that file --
04-5462 +++$+++ 25793 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What did the prosecution use? 9 The fact of early -- early conviction and the details of 10 the crime. Right?
04-5462 +++$+++ 25794 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the transcript that's included 12 of -- in that trial of the prior offense victim's 13 testimony. But the thing is what if these lawyers what -- 15 what I -- I hope this Court would expect any lawyer to do 16 when the prosecutor says, I'm going to use that folder 17 against you. You go and you open up the folder.
04-5462 +++$+++ 25795 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what would they have found?
04-5462 +++$+++ 25796 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They would have found achievement 20 test scores in that prior conviction case file indicating 21 that Mr. Rompilla had never progressed beyond the third 22 grade, indicating that he functions below 96 percent of 23 the population. He lived a nomadic life. He -- and -- 24 and test results indicating that he was elevated on scales 25 for schizophrenia, paranoia, neurosis, indicating that he 1 grew up in a slum environment, and that he was an 2 alcoholic, bearing in mind Dr. Gross' original inquiry. 3 These are also lawyers who knew that Mr. Rompilla had a 4 juvenile history and had a prior adult criminal history. And Pennsylvania lawyers know -- we've discussed 6 this in the brief -- that PSI records, presentence reports 7 in Pennsylvania, and juvenile records are very special 8 things compared to such records in other States. In --
04-5462 +++$+++ 25797 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Nolas, are you telling us 10 that all that information would have -- was in the file 11 that described the -- the criminal history that the 12 prosecutor used in his case?
04-5462 +++$+++ 25798 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Stevens.
04-5462 +++$+++ 25799 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And they didn't even look at 15 that file?
04-5462 +++$+++ 25800 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Stevens, what I just 17 read to you. Now, Pennsylvania lawyers --
04-5462 +++$+++ 25801 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is this the document that's on 20 the lodging at page 31-34?
04-5462 +++$+++ 25802 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If I may have Your Honor's 22 indulgence for a moment. Yes, Your Honor. That -- because in this case, that prior 24 conviction court file contained records that were produced 25 when Mr. Rompilla was evaluated for that prior conviction. One point that I don't want to escape this 2 Court's attention is in Pennsylvania, the Pennsylvania 3 Supreme Court and Pennsylvania -- the Pennsylvania 4 statutes indicate that presentence investigation reports 5 and juvenile records have to contain information relating 6 to, quote, educational history, psychological history, 7 marital history, family history, military history --
04-5462 +++$+++ 25803 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You -- you want us to adopt a 9 constitutional rule that at least in Pennsylvania counsel 10 have to consult these -- these records --
04-5462 +++$+++ 25804 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ When --
04-5462 +++$+++ 25805 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- as a constitutional matter.
04-5462 +++$+++ 25806 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, when State law tells 14 you that what you're going to find in juvenile and adult 15 records is exactly what the ABA standards say capital 16 lawyers should pursue, it's not diligent to ignore the --
04-5462 +++$+++ 25807 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So your -- your answer is yes.
04-5462 +++$+++ 25808 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes --
04-5462 +++$+++ 25809 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You want a constitutional rule 20 that in Pennsylvania counsel must look into these records.
04-5462 +++$+++ 25810 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, plus.
04-5462 +++$+++ 25811 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about a rule that says you 23 must consult the file of the case that's being used by the 24 prosecutor to produce seriously aggravating circumstance, 25 at least where that file is readily available, and you 1 must follow up indications in that file that suggest a 2 significant mitigating defense?
04-5462 +++$+++ 25812 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-5462 +++$+++ 25813 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right.
04-5462 +++$+++ 25814 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
04-5462 +++$+++ 25815 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And that's nothing special to 7 Pennsylvania if you know that the prosecutor is going to 8 use a certain file.
04-5462 +++$+++ 25816 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the only that's special to 10 Pennsylvania is what Pennsylvania law tells you you're 11 going to find in those files. That makes it different 12 than, say, Georgia where there's no provision for having 13 that material in those files.
04-5462 +++$+++ 25817 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what --
04-5462 +++$+++ 25818 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ For what purpose did the 16 prosecution use the files?
04-5462 +++$+++ 25819 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The prosecution told counsel I'm 18 going to use these files as part of my case and eventually 19 use them for aggravation purposes.
04-5462 +++$+++ 25820 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Use them for -- he did use them 21 for aggravation.
04-5462 +++$+++ 25821 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-5462 +++$+++ 25822 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In -- in what respect?
04-5462 +++$+++ 25823 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He put on -- he -- he had an 25 assistant district attorney take the stand and read the 1 transcript of the victim's testimony in the prior case, 2 which was included in that folder. He also used 3 information about when Mr. Rompilla incarcerated, paroled, 4 et cetera that was reflected by that folder. So plainly 5 these lawyers knew that that trial was going to be used 6 because the prosecutor told them. One other factor on -- on the duty of the 8 counsel. These counsel testified that they knew that Mr. 9 Rompilla had problems in school and left school early. 10 The school administration building in Allentown is across 11 the street from the capital case courthouse. Ms. Zapp 12 will confirm this. It says school administration 13 building. You walk by it when you go into this 14 courthouse. They knew he had problems in school. They 15 never walked in there and asked somebody, let me look at 16 the file.
04-5462 +++$+++ 25824 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I -- I don't like to either 18 direct your own argument or the questions from my 19 colleagues, but the Simmons issue here --
04-5462 +++$+++ 25825 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-5462 +++$+++ 25826 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- it seems to me is important 22 and --
04-5462 +++$+++ 25827 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, I will turn to 24 that. I will to turn to that with more sentence on the 25 ineffective issue, and that sentence is that the 1 respondent's argument in this case misstates, with all due 2 respect to -- to my friend, Ms. Zapp -- misstates the 3 holding of Wiggins. The respondent reads Wiggins as 4 holding only that when counsel has a lead, counsel should 5 pursue a thorough life history investigation. I -- I think it's pretty clear these lawyers 7 here had leads, but even if they didn't, the holding of 8 Simmons -- the first holding of Simmons is that counsel 9 has a duty to conduct a thorough life history mitigation 10 investigation and cannot rely on rudimentary knowledge 11 from a narrow set of sources. These counsel had less of a 12 rudimentary knowledge than the counsel in Simmons because 13 they relied upon --
04-5462 +++$+++ 25828 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wiggins.
04-5462 +++$+++ 25829 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In Wiggins. I'm sorry, Your Honor.
04-5462 +++$+++ 25830 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wiggins.
04-5462 +++$+++ 25831 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because they relied upon what they 18 themselves knew was a remarkably set of sources, a family 19 and a client who were not willing to discuss the 20 information when they knew records were available that 21 would have discussed the life history. Turning to the Simmons issue, Justice Kennedy, 23 the core of the Simmons issue, the core debate before the 24 Court, is what does Justice O'Connor's concurring opinion 25 in Simmons mean. The --
04-5462 +++$+++ 25832 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If there had been no questions 2 from the jury, it seems to me that you wouldn't have had 3 an argument at all because the counsel was allowed -- the 4 counsel was allowed to argue this to the jury and did 5 argue it to the jury.
04-5462 +++$+++ 25833 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the questions are very 7 significant, Your Honor. My -- my instinct would be there 8 would be --
04-5462 +++$+++ 25834 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would you -- would you agree 10 that but for the questions from the jury, Simmons was 11 complied with? The counsel argued the point to the 12 jury --
04-5462 +++$+++ 25835 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
04-5462 +++$+++ 25836 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- without being -- without 15 being contradicted.
04-5462 +++$+++ 25837 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, the caveat is that 17 the court instructed the jury that the arguments of 18 counsel are not evidence and that the law would come from 19 the court. And in that context, how much weight did they 20 give on the passing reference in Ms. Dantos' closing 21 argument? You don't have to reach that issue in this case 22 because we know what the jury was concerned about. They 23 were concerned about parole and they were concerned about 24 that because the prosecutor --
04-5462 +++$+++ 25838 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. So now -- now we have a 1 situation where the case, by my suggestion in any event, 2 was properly presented to the jury, and the only question 3 is what the constitutional obligation is once the jury 4 brings in a question.
04-5462 +++$+++ 25839 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The constitutional obligation under 6 Simmons itself would be to say is there something here or 7 in -- in the words of Justice O'Connor, did the State put 8 future dangerousness in issue. And in this case --
04-5462 +++$+++ 25840 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it didn't expressly. I 10 mean, there -- there were arguments about his behavior, 11 but the problem I think we have with the Simmons claim 12 here is that the Kelly case had not yet been decided, and 13 you now have the AEDPA situation of trying to show that 14 the State court's resolution was objectively unreasonable. 15 And prior to Kelly, that's a pretty tough road for you.
04-5462 +++$+++ 25841 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that may be -- that would have 17 been the case, Your Honor, had the Pennsylvania Supreme 18 Court not adopted the very interpretation of Your Honor's 19 concurrence in Simmons that Kelly adopted. The 20 Pennsylvania Supreme Court three times said Simmons means 21 you get a life without parole instruction in Pennsylvania 22 when the State puts future dangerousness at issue. The 23 construction that the respondent gives to Simmons and that 24 the court of appeals below gave to Simmons, specifically 25 that it only applies when the prosecutor argues that the 1 death penalty should be imposed because of future 2 dangerousness, not only is not to be found in Justice 3 O'Connor's concurrence, but it is not to be found anywhere 4 in the Pennsylvania Supreme Court's opinion in this case.
04-5462 +++$+++ 25842 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And what's the best argument 6 you have that future dangerousness was an issue?
04-5462 +++$+++ 25843 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are several factors in that 8 regard, Your Honor. As to the argument itself, the 9 prosecutor called Mr. Rompilla a very strong individual, a 10 very violent individual. He asked the jury, isn't it 11 frightening the similarity between his past crime and this 12 crime? He sent the clear signal to the --
04-5462 +++$+++ 25844 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, of course, that also 14 bears on the -- on the fact of his depravity, that he was 15 just -- he just didn't learn.
04-5462 +++$+++ 25845 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He -- he sent the --
04-5462 +++$+++ 25846 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't know if that's 18 necessarily future dangerousness or -- it's equally 19 blameworthiness.
04-5462 +++$+++ 25847 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, he sent the clear 21 signal to the jury that this is a violent, frightening 22 man, and then he tied it all together with this comment. 23 And I think he learned a lesson from his prior -- prior 24 crime, and that lesson was don't leave any witnesses. 25 Don't leave anybody behind that can testify against you. 1 Don't leave any eyewitness.
04-5462 +++$+++ 25848 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that goes to his 3 blameworthiness. He didn't learn anything in prison. I 4 -- I suppose future dangerousness is -- in a sense is 5 always in question, but I think our precedents say it has 6 to be specifically or -- or clearly implied.
04-5462 +++$+++ 25849 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would submit to the Court that 8 that argument indicates to a reasonable jury future 9 dangerousness as much as the argument in Simmons itself --
04-5462 +++$+++ 25850 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can you imagine any capital 11 case, if we accept that argument, in which future 12 dangerousness is not at issue? Because whenever you show 13 the depravity of the defendant, what a horrible crime it 14 was, you're going to be able to make the same argument. 15 Any jury is going to be frightened of this man and think 16 he's going to be dangerous in the future. If that's all 17 -- if that's all that Simmons means, we should just say in 18 all capital cases, you assume that it's at issue.
04-5462 +++$+++ 25851 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and --
04-5462 +++$+++ 25852 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that seems to be not what 21 we've said.
04-5462 +++$+++ 25853 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And, Justice Scalia, that's not, 23 however, the issue before the Court. What this prosecutor 24 told the jury is this man learned a lesson that when he 25 commits his repeated crimes, he shouldn't leave any 1 witnesses behind.
04-5462 +++$+++ 25854 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- but that --
04-5462 +++$+++ 25855 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-5462 +++$+++ 25856 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that goes -- I -- I would 5 make that argument to show how -- how horrible this crime 6 was. He killed this person specifically in order to 7 prevent testimony, which makes the -- the crime worse. I 8 don't think it necessarily goes to future dangerousness 9 any more than any of the element -- other elements of 10 depravity or -- or the horribleness of the crime goes -- 11 goes to future dangerousness.
04-5462 +++$+++ 25857 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and this is in the context of 13 a prosecutor who elicited that Mr. Rompilla had been 14 paroled 3 and a half months before the offense, that his 15 niece and nephew were scared of him, that he could not 16 rehabilitate yourself. Indeed, I -- I urge the Court to 17 read the cross examination of the defense witnesses at the 18 penalty phase. It's short, it's narrow, and it focuses on 19 this guy couldn't rehabilitate himself. This guy was just 20 paroled 3 and a half months and then goes and commits this 21 brutal murder. And this guy's niece and nephew are afraid 22 of him. That's the context. Also, the prior victim --
04-5462 +++$+++ 25858 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And -- and you -- you expect us 25 in all future cases to read the prosecution's argument and 1 -- and say, well, has it gone over the line from just his 2 depravity into he's future -- you know, he's going to be 3 dangerous in the future?
04-5462 +++$+++ 25859 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
04-5462 +++$+++ 25860 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I think that puts too much of a 6 burden on -- on the Federal courts.
04-5462 +++$+++ 25861 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Justice Scalia, it's not just 8 the depravity argument. The argument is he learned a 9 lesson to leave no witnesses behind. And the -- the 10 simplest answer to your question is to compare the 11 argument in Simmons to the argument in this case. You 12 quoted the argument in Simmons in your Simmons dissent. 13 It was the -- this is the prosecutor in Simmons. The 14 defense in this case as -- the defense in this case as to 15 the sentence is a diversion. It's putting the blame on 16 society, on his father, on his grandmother, on whoever 17 else he can, spreading it out to avoid his personal 18 responsibility. But we are not concerned about how he got 19 shaped. We are concerned about what to do with him now 20 that he is within our midst. And that was the argument 21 that Justice O'Connor and the plurality in Simmons cited 22 as bringing future dangerousness to the jury's attention. 23 To put it --
04-5462 +++$+++ 25862 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This -- this prosecutor also 25 said, before he got into isn't it frightening, I'm not 1 asking you for vengeance. So if he's not putting it on 2 for vengeance or the bad acts that he did, then what else 3 could it be?
04-5462 +++$+++ 25863 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Future dangerousness is -- is what 5 we would submit to the Court.
04-5462 +++$+++ 25864 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How about justice? I mean, is 7 that the only alternative to vengeance, is -- is future 8 dangerousness? I don't think so at all.
04-5462 +++$+++ 25865 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ When you tell a jury that a person 10 is a violent recidivist who learns the lesson -- he's a 11 recidivist. He's going to commit more crimes if he's out. 12 The lesson he learns is when he commits those more crimes, 13 don't leave anybody behind. I -- I see that as an argument that -- that is 15 far beyond Simmons itself as to future dangerousness. In 16 future dangerousness, Justice Scalia, you -- you argued in 17 the dissent that the future dangerousness -- that what the 18 plurality and Justice O'Connor construed as a future 19 dangerousness argument could have had another purpose. 20 Only in a State like Texas where you have a pure future 21 dangerousness argument, in every State where you have 22 other aggravators before the jury, of course you can 23 construe it for another --
04-5462 +++$+++ 25866 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought that there was no 25 problem in any State but Pennsylvania because now all of 1 them -- when the jury wants to know does life mean life, 2 the judge says yes.
04-5462 +++$+++ 25867 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In all of them except Pennsylvania, 4 Your Honor. I'm not saying it's a problem, but in 5 response to Justice Scalia's question, only in a pure 6 future dangerousness State will you have a pure future 7 dangerousness argument. And just one final comment on Simmons. As a 9 prosecutor, if I'm putting on a future dangerousness case, 10 I do it just like this prosecutor do it. I put on this 11 man's significant violent criminal history. I tell the 12 jury the lessons he learned from that history is to be 13 violent and to not leave anybody behind. And I tell the 14 jury that's what he's like. That's what he learned from 15 his prior crimes. That's the message of future 16 dangerousness you send to the jury. That's the message 17 that this prosecutor sent, exactly how you would do it if 18 you were arguing future dangerousness. You know from the 19 jury's question they got that message. If I may, I'd reserve the rest of my time for 21 rebuttal.
04-5462 +++$+++ 25868 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, you may reserve your 23 time.
04-5462 +++$+++ 25869 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, thank you.
04-5462 +++$+++ 25870 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Zapp.
04-5462 +++$+++ 25872 +++$+++ FALSE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Stevens, and may 4 it please the Court: I'll address first the Simmons issue and then 6 move on to the ineffectiveness issue, which will also be 7 addressed by the Solicitor General's office. The ruling of the Pennsylvania Supreme Court in 9 this case, which denied the petitioner relief under 10 Simmons v. South Carolina, was objectively reasonable and 11 therefore did not provide a basis for habeas relief. Simmons could reasonably be understood to 13 require an instruction about parole ineligibility only in 14 situations where the prosecution had argued that the 15 defendant posed a future danger when it was asking the 16 jury to sentence him to death. Simmons was a narrow 17 exception to the abiding practice of this Court to allow 18 the States to make decisions about what types of 19 information the sentencing jury should receive with 20 respect to the potential for early release.
04-5462 +++$+++ 25873 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, do you -- do you take the 22 position that the -- that the argument that the prosecutor 23 makes has got to refer explicitly to future dangerousness, 24 a kind of talismanic words criterion so that we'll have a 25 bright line rule and everyone will know where -- where he 1 stands?
04-5462 +++$+++ 25874 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think Simmons could be 3 understood -- and in fact did establish a bright line rule 4 that the prosecutor had to actually argue it had to invite 5 the --
04-5462 +++$+++ 25875 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. But has -- has the 7 prosecutor got to use a phrase like future dangerousness 8 or a synonym for that phrase?
04-5462 +++$+++ 25876 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think he had to use words that 10 communicated that. I'm not sure there's any one 11 particular phrase, but a prosecutor can certainly put that 12 into issue --
04-5462 +++$+++ 25877 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
04-5462 +++$+++ 25878 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- using different -- different 15 words.
04-5462 +++$+++ 25879 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- if we -- if we don't adopt 17 that kind of explicit words criterion, do you deny that 18 the -- that the argument that the prosecutor made, 19 particularly the -- by -- by introducing the -- the 20 evidence of -- of the prior crime for purposes of the 21 aggravating factor and the argument that he made about how 22 the defendant had learned from his prior crime -- do you 23 -- do you deny that -- that those were in fact, not with 24 the talismanic words, but that those in fact were -- were 25 arguments that suggested future dangerousness?
04-5462 +++$+++ 25880 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do, Your Honor. And my -- my 2 reason for that is when you look to the argument itself, 3 those words were used in a very controlled situation. 4 They -- they did not by their tone or the overall tenor of 5 the argument or their content tell the jury to take the -- 6 the defendant's future dangerousness into account.
04-5462 +++$+++ 25881 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I -- I don't see how the -- 8 I -- I guess my -- my point is I don't see how you can 9 avoid it. The -- the argument -- I think we would all 10 agree that the argument was this person has committed 11 repeated crimes. We're asking you to bear that in mind 12 for the purposes of applying one of the three aggravating 13 factors. In the course of committing repeated crimes, he 14 has learned from past mistakes; i.e., he knows this time 15 not to leave any witnesses. How can you divide the tendency of that 17 argument, repeated crimes for purposes of aggravation, 18 from the tendency of that argument to say repeated crimes 19 in the future if he gets a chance? This is the kind of 20 guy we're dealing with. How can you draw that line?
04-5462 +++$+++ 25882 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think this Court has said 22 that you can draw that line because -- and you have to 23 draw that line because in this situation -- because in 24 every situation, every capital situation, the evidence 25 that necessarily has to be discussed as part of sentencing 1 can be --
04-5462 +++$+++ 25883 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but this is -- this is a 3 special case. This is not a general argument to the 4 effect that this is a very bad person and we can expect 5 bad persons to be bad in the future. This is a more 6 specific argument. This is an argument that says he's now 7 done it twice. This is the second crime and he's getting 8 better at it as he goes along because now he kills the 9 witnesses. This isn't just generalized badness. This is 10 criminal repetitiveness. It is recidivism. And it seems 11 to me that that is a much clearer argument. It is much 12 closer to the explicit argument that he will do it in the 13 future.
04-5462 +++$+++ 25884 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I don't think so in the specific 15 context of this case, Your Honor, and that's again because 16 the evidence in this situation really did not show a 17 continuing sequence of -- of conduct and only talked about 18 two episodes. And the fact that there was evidence in -- 19 or there were remarks in this case about how the violence 20 had escalated did not, again, go to -- suggest and -- and 21 clearly the tone of the prosecutor did not suggest that 22 the jury should draw from that a conclusion that the 23 defendant would be dangerous.
04-5462 +++$+++ 25885 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What --
04-5462 +++$+++ 25886 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Ms. Zapp, I guess -- I guess 1 I'm confused about your case. I had thought that you were 2 not arguing that Simmons requires a talismanic word or 3 even that it requires much more than existed here. I 4 thought what you were arguing is simply that Simmons could 5 at that time have been interpreted that way.
04-5462 +++$+++ 25887 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We are, Your Honor, and -- and --
04-5462 +++$+++ 25888 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So you're not -- you're not 8 making the argument.
04-5462 +++$+++ 25889 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We are not making the argument.
04-5462 +++$+++ 25890 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you're saying the argument 11 could have been made at -- at the time of this trial --
04-5462 +++$+++ 25891 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-5462 +++$+++ 25892 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- and before our later 14 jurisprudence.
04-5462 +++$+++ 25893 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-5462 +++$+++ 25894 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And why would that argument 17 have been reasonable?
04-5462 +++$+++ 25895 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because --
04-5462 +++$+++ 25896 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In other words, why -- why 20 would we -- why would it be reasonable to assume that this 21 Court had -- had established a constitutional rule going 22 to jury instruction that rested on a kind of talismanic 23 criterion?
04-5462 +++$+++ 25897 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, because the concurring opinion, 25 which provides the -- this precise holding, identified 1 that specific conduct as triggering and could be 2 understood at the time to require that specific conduct to 3 trigger an instruction in these circumstances.
04-5462 +++$+++ 25898 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what specific words in 5 -- in the concurring opinion gets to the talismanic point?
04-5462 +++$+++ 25899 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The specific words were the -- the 7 Court's instruction that an -- about a charge on all 8 ineligibility had to be supplied, and I'm going to quote 9 from the Court's opinion where -- where the prosecution 10 argues that the defendant will pose a threat to -- to 11 society in the future. That -- that opinion -- and just a few lines 13 earlier it also said, again -- and I'm going to quote the 14 words -- if the prosecution does not argue future 15 dangerousness, the State may appropriately decide that 16 parole is not a proper issue for the jury's consideration 17 even if the only sentencing alternative to death is life 18 in prison without the possibility of parole.
04-5462 +++$+++ 25900 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and you're -- you're 20 depending on the word, in effect, argue as -- as requiring 21 -- or as -- as being a basis to say the argument has got 22 to use talismanic words.
04-5462 +++$+++ 25901 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not -- not that -- not that it has to 24 use talismanic --
04-5462 +++$+++ 25902 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You're saying it has to be 1 argued.
04-5462 +++$+++ 25903 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly, that has to be argument as 3 opposed to some other form of communication --
04-5462 +++$+++ 25904 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Not -- not just intimated, not 5 just suggested, but the jury -- you have to argue that 6 this person --
04-5462 +++$+++ 25905 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But by --
04-5462 +++$+++ 25906 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- is dangerous in the future.
04-5462 +++$+++ 25907 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But by contrast --
04-5462 +++$+++ 25908 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's a reasonable 11 interpretation of it I would think.
04-5462 +++$+++ 25909 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly.
04-5462 +++$+++ 25910 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And on that interpretation, why 14 wasn't it an argument within the meaning of -- of your 15 point, when the prosecutor here got up and said, isn't it 16 frightening, he has, in effect, learned from his past 17 experience, now he knows enough to kill the witnesses?
04-5462 +++$+++ 25911 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, first of all, Your Honor --
04-5462 +++$+++ 25912 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wasn't that an argument which 20 -- which goes to future dangerousness?
04-5462 +++$+++ 25913 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, first of all, Your Honor, he 22 did not make that argument. He never asked if it was 23 frightening that he had learned from this. The word 24 frightening -- again, this has been used out of context by 25 my -- my learned colleague -- went to -- strictly went to 1 the discussion of similarities between the crimes, not the 2 defendant. And in this situation --
04-5462 +++$+++ 25914 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ah, but what immediately 4 follows -- first he said it's absolutely frightening 5 twice. But there is one difference, one major difference, 6 and the difference is that he has learned to leave no 7 witnesses. That is tightly connected. He says this is an 8 absolutely frightening crime, but there's something more. 9 He's learned not to leave any witnesses.
04-5462 +++$+++ 25915 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but again, Justice Ginsburg, 11 that goes to the idea that the defendant has ratcheted up 12 his crime, that instead of taking the opportunity to 13 reform his life, he's gone further and that makes this 14 crime worse and -- and more worthy of harsher treatment 15 from a punishing standpoint.
04-5462 +++$+++ 25916 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is our position that in 1998 when 17 the State courts ruled, it was entirely reasonable for the 18 Supreme Court to view Simmons as requiring that issues of 19 future dangerousness be generated by the prosecution's 20 argument.
04-5462 +++$+++ 25917 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I -- I know you want to get to 22 the other issue in this case, but let me ask you. You've, 23 I assume, read these cases. In -- in other States where 24 this instruction is given, is the prosecutor free to say, 25 well, sure, there's life without parole, but that can 1 change? We don't know what the law will be like 3 years 2 from now, 5. Have there been any problems along that -- 3 along those lines? Have there been any problems generally 4 in giving this instruction to the jury?
04-5462 +++$+++ 25918 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I'm not sure of the 6 practice in other States, but I can tell you that in 7 Pennsylvania -- and this is a point I need to correct from 8 my opponent's argument. The answer to the question about 9 parole eligibility is not a simple no. And that -- our 10 supreme court has said that. We have a statutory 11 prohibition in granting the -- granting parole to someone 12 who's sentenced to life, but we also have a constitutional 13 provision that allows the sentence to be commuted to, 14 among other things, parole or other forms of early 15 release. Our State supreme court has said you -- in order 16 to be entirely accurate for sentencing jury, you've got to 17 communicate both of those conducts. And -- and the second part that has over the 19 years -- and this goes to respond to your question -- has 20 caused our court some pause in why we retain the rule. 21 And that is they are very concerned. Our courts have 22 expressed the view that by letting the jury know that the 23 operation of the constitutional provision which can 24 theoretically -- and, in fact, in the past often has 25 resulted in a life sentence being commuted -- it may be 1 skewing the jury's perception of the punishments adversely 2 to a defendant. It's one of the reasons why they have 3 made a decision not to introduce sentencing information 4 into -- early release information into the sentencing 5 process in Pennsylvania, the concern that if a jury hears 6 that there's some theoretical possibility or learns that 7 it has been -- been actual -- there's been actual early 8 release in the past, that it may -- may, out of an 9 exercise of caution, automatically choose a death 10 sentence.
04-5462 +++$+++ 25919 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And that explains why your 12 State is the only holdout.
04-5462 +++$+++ 25920 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm sorry. Well, that it's -- 14 they -- they have serious concerns, Your Honor, that -- 15 that this is something that is necessary to the integrity 16 of the process. And there are two other concerns they've also 18 mentioned too. They're -- they're concerns that -- that 19 the jury be deflected from the specific process that we 20 have under law which -- which is -- which is specified in 21 our law for -- for imposing a sentence and not be 22 distracted by undue speculation about whether or not the 23 defendant is ever going to be released from prison. And the second -- or excuse me. The third point 25 that they're worried about is that a sentencing jury who, 1 for whatever reason, becomes reluctant to -- to carry out 2 its duties may see this as an opportunity to shift the 3 sentencing burden to somebody like a parole board or -- or 4 other sentencing authority. And so that's why they have 5 -- they've enforced this rule because they just see it as 6 underscoring the integrity of the process.
04-5462 +++$+++ 25921 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you a question about 8 the competence of counsel issue? One -- I'm -- I'm very 9 sympathetic to the problems of busy lawyers who have so 10 much to do and they're preparing for a penalty hearing. 11 But one -- one aspect of this case -- I hope you'll 12 comment -- and that is, the fact that the prosecutor had 13 told the defense they were going to use certain 14 aggravating circumstances, and the files in those -- 15 relating to those circumstances were available in the 16 courthouse. And as I understand -- and you correct me if 17 I'm wrong -- counsel did not examine those files, and had 18 he examined those files, he would have opened the door to 19 a wealth of information. Isn't that a fairly serious 20 mistake by the lawyer?
04-5462 +++$+++ 25922 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not in this circumstance, Justice 22 Stevens, and -- and for this reason. The information that 23 is typically contained in those files -- and -- and again, 24 I -- I want to add some additional information for the -- 25 for the Court on this point. As Mr. Nolas says, 1 Pennsylvania law does require preparation of records, 2 including certain types of information. But as -- as is 3 often the case, the -- the -- in -- in practical -- and 4 the practical realities are not necessarily all records 5 are equal. So as a matter of practice, in Pennsylvania 6 attorneys cannot necessarily -- or would not automatically 7 have reason to think these may give them a wealth of 8 information. But in this situation we had counsel seeking to 10 obtain that very same information, in fact, had previously 11 discussed that sort of thing with the family members. And 12 so they at that point would have reasonably expected that 13 they had a fair picture of the defendant's formative 14 years --
04-5462 +++$+++ 25923 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, maybe they -- assume 16 that's all true. They thought they knew everything --
04-5462 +++$+++ 25924 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-5462 +++$+++ 25925 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- they needed to know. But 19 still, if you say to me I'm going to put on certain 20 exhibits, A, B, and C, and the defense says I'm not even 21 going to even take a look at them before you put them on, 22 I find that quite unusual.
04-5462 +++$+++ 25926 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they knew from interviewing 24 their client what his criminal history was, and at that -- 25 this point, they had every reason to believe they 1 possessed a fair and accurate assessment of his 2 background, and the decision not to -- to go -- to -- to 3 take a look at this was -- was reasonable under the 4 circumstances. Counsel thought they already had that 5 information and no reason to expect there was anything 6 else in there based on their discussions with their own 7 client.
04-5462 +++$+++ 25927 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They thought they had -- it 9 was reasonable when they, on their own, suspected that 10 this man might not even be competent at the moment to 11 stand trial, that he -- that they might have a -- a basis 12 for an insanity plea, that it was reasonable for them to 13 rely just on what he told them without looking at the 14 record that was in the prosecutor's hands?
04-5462 +++$+++ 25928 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, no, Justice Ginsburg. And again, 16 we're talking about the sequence of events here. The -- 17 this -- this came up relatively later on in the 18 proceedings after counsel had already expended much of 19 their time gathering information in the -- the information 20 about what was going to be introduced. It -- it happens, 21 in -- in terms of the time line of this case, relatively 22 late, after counsel has already talked to experts and 23 obtained information, talked to family members and -- 24 and --
04-5462 +++$+++ 25929 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I understand that. You're 1 repeating that point which -- so I might ask this question 2 on this very point.
04-5462 +++$+++ 25930 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Could -- could I find out what 4 she said came late? I -- I didn't understand. You 5 said --
04-5462 +++$+++ 25931 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the --
04-5462 +++$+++ 25932 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- it came -- what came 8 relatively late?
04-5462 +++$+++ 25933 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- I'm sorry. The -- the file 10 itself, the -- the information the file was going to be 11 used.
04-5462 +++$+++ 25934 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Came up late.
04-5462 +++$+++ 25935 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Comparatively late over the course of 14 this case. The counsel had already done things in that 15 respect that would have led them to conclude that there 16 would be no profit in -- in searching out additional 17 records.
04-5462 +++$+++ 25936 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ My question is this, that I 19 take it on page L31 is the record that existed in this 20 horrendous rape '74 case with Jo, whatever, the woman, the 21 bartender. And the prosecution was making an enormous 22 amount out of that. We've just heard about it. That's 23 true, isn't it? Am I right about the case? Have I got 24 that right?
04-5462 +++$+++ 25937 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This is the record that did exist.
04-5462 +++$+++ 25938 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. This is -- I'm thinking 2 of it correctly, that this is the record in the case that 3 the prosecution made a lot out of.
04-5462 +++$+++ 25939 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe --
04-5462 +++$+++ 25940 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm -- I'm back with Justice 6 Stevens then and I wonder how it's possible a lawyer 7 wouldn't look at the record in that very case if only to 8 see if the prosecutor is characterizing the situation 9 accurately. And had he done so, he would have seen on the 10 next page, alcohol problems. He would have seen a 11 complete list of siblings, and he would have seen, four 12 pages later, a one-page list of criminal behavior with 13 identification of crimes that took place when he was a 14 child. That's all true. Now, if he had then noticed these early criminal 16 records when he was a 17-year-old and simply gotten the 17 record in that one, he would have come across the document 18 that is on page L44 and L45 which says, among other 19 things, Ronald comes from the notorious Rompilla family. 20 And then there is a list of why they are called the 21 notorious Rompilla family which is fairly horrendous. Now, I do not understand how any person, getting 23 the first record, wouldn't have been led to the second, 24 and I do not understand how any person who read pages 44 25 and 45 of the second would not have thought what the 1 siblings are telling me is wrong. I better go check on a 2 few more siblings who happen to have their names and 3 addresses here right in the pieces of paper he's looking 4 at. And he would then have discovered this absolutely 5 horrendous background that Judge Sloviter mentions. So I 6 do not understand why that one incident, leaving aside all 7 the other ones, but I do not understand why that one 8 failure to consult the record that is being used by the 9 prosecutor horrendously against him is not a failure.
04-5462 +++$+++ 25941 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your -- Your Honor, in response 11 to that, I would say this. It's clear from the testimony 12 of counsel in the State post-conviction proceedings that 13 they had interviewed their client in great detail about 14 his prior conviction, that they were aware of what had -- 15 what it had involved.
04-5462 +++$+++ 25942 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ This sounds to me like a 17 constitutional argument for serendipity. You're held to 18 be negligent if you don't look at the record for -- for 19 one purpose and -- and discover by accident something 20 that's there for another purpose. I -- I don't know what 21 the logic of that is.
04-5462 +++$+++ 25943 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you agree with that?
04-5462 +++$+++ 25944 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think there is --
04-5462 +++$+++ 25945 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. We don't -- you agree with 25 that or not?
04-5462 +++$+++ 25946 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think there's -- there is an 2 element.
04-5462 +++$+++ 25947 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You either agree with Justice 4 Kennedy or not.
04-5462 +++$+++ 25948 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I can agree with -- I do agree with 6 it in part.
04-5462 +++$+++ 25949 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You do agree. All right. Now, 8 if you --
04-5462 +++$+++ 25950 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I do agree that there is -- that 10 there is certainly that involved in -- in this.
04-5462 +++$+++ 25951 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, my question, obviously, 12 is, is not the reason that you want to examine the 13 criminal record in the case that is being used 14 horrendously against your client is to find out both as to 15 what happened at the time and also the background that 16 would be relevant in respect to your client? For example, 17 alcohol abuse, which happened to be checked.
04-5462 +++$+++ 25952 +++$+++ TRUE +++$+++ MS. ZAPP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but, Justice Breyer, yes, 19 certainly looking at a record would serve those purposes. 20 But again, the information in those records was available 21 from other sources. It was not the only source. And -- 22 and the question that we have to look at here was did 23 counsel set out on a plan to try to get the same 24 information, which clearly they did, and they -- they 25 sought to get it from people who ostensibly knew that 1 information. Thank you.
04-5462 +++$+++ 25953 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Zapp. Ms. Lovitt.
04-5462 +++$+++ 25955 +++$+++ FALSE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Stevens, and may 9 it please the Court: Petitioner's ineffectiveness argument seems to 11 be hinging on four things which are the court records in 12 the aggravation case, the charge to the expert, the family 13 members' level of cooperation, and the petitioner's level 14 of cooperation. But a fair reading of the record 15 demonstrates that counsel was reasonable with respect to 16 all. But I want to start with the court records because 17 that appears to be what's concerning the Court. I think there's a misperception here that 19 counsel did nothing to prepare for the aggravation case. 20 The record, fairly read, reflects that they received 21 through the discovery process the rap sheet and everything 22 they needed to know in order to challenge the -- the 23 aggravation case, and that's at JA664 and 667, is Attorney 24 Charles testifying that he received the rap sheet through 25 discovery and that the prosecutor, in order to try and 1 induce a plea, was very, very clear about what he intended 2 to do in aggravation and what the aggravation case would 3 be.
04-5462 +++$+++ 25956 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But a rap sheet and so forth 5 will not have normally what this person is like. You're 6 dealing with a client who has serious problems of some 7 kind as the crimes themselves reveal. They're terrible.
04-5462 +++$+++ 25957 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think --
04-5462 +++$+++ 25958 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and so I -- don't you 10 think it's a reasonable -- or do you think it's a 11 reasonable constitutional requirement to say that where 12 cases of prior history of the client are being used by the 13 prosecution to say what a terrible person he is -- and he 14 may be -- that you -- the -- the lawyer in a capital case 15 at least should look at the court records in that case to 16 learn something about what this human being is like and 17 why? Because court records, but not rap sheets do contain 18 that kind of thing.
04-5462 +++$+++ 25959 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think there are two answers to 20 that question. First is that counsel was, in fact, 21 looking at the testimony that would be read at -- during 22 the aggravation and sentencing case to determine how to 23 challenge that, how best to challenge that. And second, the assumption of the question is 25 that the court records were somehow superior to the 1 sources that counsel actually looked to. And I don't 2 think on the record of this case, that's objectively true. 3 Counsel is -- has -- has hired three independent experts, 4 all of whom are specifically trained --
04-5462 +++$+++ 25960 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Experts that were hired 6 primarily to say what is his present mental condition, not 7 what happened in the past.
04-5462 +++$+++ 25961 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Ginsburg, and I'm glad 9 you brought this up because I'd like to point the Court to 10 JA1069 and 1079 which is where Dr. Cooke testifies, as 11 Justice Scalia anticipated, that he was, in fact, asked to 12 -- asked to look at the mitigation evidence, and he did 13 look at mitigation evidence. Dr. Sadoff has the same 14 testimony --
04-5462 +++$+++ 25962 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What was the primary reason 16 that those experts were engaged?
04-5462 +++$+++ 25963 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Dr. --
04-5462 +++$+++ 25964 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The primary reason.
04-5462 +++$+++ 25965 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Dr. Cooke's and -- Drs. Cooke and 20 Sadoff testified that they were given an open-ended charge 21 to look at mitigation --
04-5462 +++$+++ 25966 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where -- where is this?
04-5462 +++$+++ 25967 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ First, Dr. Cooke is at JA1079 and 24 1069. Dr. Sadoff is at 1105 and 1122.
04-5462 +++$+++ 25968 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought it was not 1 contested that in fact the primary reason why these 2 doctors were engaged was that the defense attorney wanted 3 to see if there was a basis for a plea of insanity. He 4 wanted to see if there was a basis to claim that his 5 client was incompetent to stand trial.
04-5462 +++$+++ 25969 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is -- that is definitely 7 contested with respect to Drs. Cooke and Sadoff. With 8 respect to Dr. Gross, who was the first expert that was 9 hired, he testified that his marching orders were fairly 10 limited, and I think that's where this idea is coming 11 across that all the experts were only charged to look for 12 competency to stand trial.
04-5462 +++$+++ 25970 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And Dr. Gross is the one who -- 14 who in his report suggested a follow-up on alcoholism I 15 think.
04-5462 +++$+++ 25971 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-5462 +++$+++ 25972 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And one way, at least a kind of 18 a threshold step to follow up on alcoholism, would have 19 been to look at the -- the personal history report in the 20 file of the prior case. If they had done so, they would 21 have found something on that subject. So even -- even if we forget the question of the 23 -- the scope of the expert's original brief and we look to 24 Dr. Gross' suggestion and we look to the failure to look 25 in an obvious place, i.e., the -- the personal history 1 report and -- and the case file, which the State said it 2 was going to use, don't we have a problem with competence 3 of counsel?
04-5462 +++$+++ 25973 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, because counsel looked -- 5 followed up in an objectively reasonable place. Their 6 testimony was that they hired two more experts to look at 7 this issue, and Dr. Gross did not conclude --
04-5462 +++$+++ 25974 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The -- the two other 9 psychiatrists or psychologists?
04-5462 +++$+++ 25975 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The two -- the two other 11 psychiatrists. Because the issue wasn't alcoholism.
04-5462 +++$+++ 25976 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wel, were they -- were they 13 hired to -- to look into alcoholism?
04-5462 +++$+++ 25977 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Dr. Gross' report says he 15 might have a violent reaction to alcohol. And he 16 testified that was -- I was throwing that out as a theory. 17 I have no idea. I had ruled out alcoholism. I had ruled 18 out blackouts. And so the question to me was maybe 19 there's something out there about violent chemical 20 reactions to alcohol. Counsel testified that the -- that 21 they followed up on that by hiring experts who they 22 thought could examine that issue, and they both concluded 23 that there was nothing there. This is not an instance where you have, you 25 know, open inquiries that counsel didn't follow up on. 1 Every court in this case has recognized --
04-5462 +++$+++ 25978 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would you tell me again? I'm 3 -- I'm just afraid I missed it before. What is your 4 justification for failing to look at the -- at the 5 criminal files?
04-5462 +++$+++ 25979 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That they received everything they 7 needed to challenge the aggravation case through 8 discovery. And there's a little bit --
04-5462 +++$+++ 25980 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So even if they did, would it 10 -- you still think it would be prudent not even to look at 11 the file?
04-5462 +++$+++ 25981 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They had everything they needed to 13 challenge the aggravation --
04-5462 +++$+++ 25982 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, they didn't have as much 15 as they would have had if they'd looked at the file.
04-5462 +++$+++ 25983 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the Sixth Amendment question --
04-5462 +++$+++ 25984 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you agree with that?
04-5462 +++$+++ 25985 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think that they had -- 19 obviously, in retrospect, the court files would have been 20 helpful, but they had nothing to signal that the court 21 files would give them more information.
04-5462 +++$+++ 25986 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I understand that. I'm 23 just -- I'm just asking you whether, as a matter of 24 routine preparation for a contested hearing, it is not the 25 duty of counsel to take -- at least glance at the exhibits 1 that the other side is going to offer.
04-5462 +++$+++ 25987 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They did. They received them 3 through discovery. And this is -- there's some testimony 4 during -- during the court proceedings, Attorney Dantos 5 does not have the transcript with her, and she clarified 6 in the testimony at post-conviction --
04-5462 +++$+++ 25988 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're saying they did get 8 copies of the --
04-5462 +++$+++ 25989 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, yes, and that's her testimony 10 at JA506 to 508. She says, we received it in discovery 11 and I had it and I've looked it, but I didn't have it with 12 me at that moment.
04-5462 +++$+++ 25990 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is the it? What is the 14 it?
04-5462 +++$+++ 25991 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The it being the transcripts of the 16 proceedings that were used in the aggravation phase.
04-5462 +++$+++ 25992 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But not everything that was 18 in that file.
04-5462 +++$+++ 25993 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But they did not --
04-5462 +++$+++ 25994 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There was a lot more than 21 just the transcript of the proceedings in that file.
04-5462 +++$+++ 25995 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly. Because they had 23 conducted an objectively reasonable investigation into 24 anything else that might be in that file.
04-5462 +++$+++ 25996 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the serious question to 1 me is -- is -- in many of these cases which we see, there 2 are horrendous child abuse histories, and child abuse is a 3 terribly difficult thing to get at and it's something that 4 might not convince most juries of anything because they're 5 all over the place. But nonetheless, counsel should have 6 to make a reasonable decision about whether to take the 7 child abuse route or to take some other route. And would 8 it cause constitutional harm, that is, would it cause harm 9 even from a prosecutorial point of view, if you just said, 10 well, you should follow up and look at records of prior 11 cases being used against you to see if you get a clue 12 there?
04-5462 +++$+++ 25997 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the testimony is clear. 14 Counsel knew about the abuse denial dynamic and they did 15 follow up on it by hiring three experts who were charged 16 to ferret this out. And it would do constitutional harm 17 to say, notwithstanding the fact that you did that, you 18 still have to go to records because as Strickland 19 recognizes, counsel, even where you have diligent, devoted 20 counsel, as here, have to make decisions about resource 21 and time allocation.
04-5462 +++$+++ 25998 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But Strickland was about a 23 strategic decision to pursue one kind of defense rather 24 than another. The Government's brief, I must say, was candid 1 and, I think, useful. I'm talking about footnote 5 on 2 page 22 where you say the Federal public defenders in 3 Federal death penalty cases -- they get a mitigation 4 specialist and the mitigation specialist, of course, gets 5 records. What records? Exactly what we're talking about 6 in this case. Gets records, birth, schools, social 7 welfare, employment, jail, medical, and other records. 8 And here, not one of those -- not one -- was sought.
04-5462 +++$+++ 25999 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But this was the current -- this is 10 the current Federal practice. I think Attorney Charles 11 testifies at length that the prevailing practice in 1988 12 in Pennsylvania was not to get records, that it was, as 13 the ABA guidelines and even the Goodpaster article 14 suggests, to first sit down with your client, have an 15 extensive conversation with your client, get a 16 relationship of trust, talk to family members, talk to 17 friends, get experts, and then get a game plan together 18 about what records to go to. And in this case --
04-5462 +++$+++ 26000 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ About what records to go to, 20 and here they went to none.
04-5462 +++$+++ 26001 +++$+++ TRUE +++$+++ MS. LOVITT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because that objectively reasonable 22 investigation affirmatively indicated that the records 23 would contain nothing. In hindsight, we have the benefit of hindsight 25 to know that they did contain something, but at that point 1 you have three experts, siblings who bracket petitioner in 2 age and were living in the same household that -- during 3 the time that's at issue here, and you have extended 4 family members, including an ex-wife, who aren't subject 5 to an abuse denial dynamic, and they're all saying the 6 same thing. There's no abuse. There's no alcohol problem 7 with either him or the family. And the experts are 8 telling you he's not mentally retarded. And you have 9 experts who are specifically charged to look at the 10 mitigation case and they're not finding anything.
04-5462 +++$+++ 26002 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Lovitt. Mr. Nolas, you have about 4 minutes left.
04-5462 +++$+++ 26004 +++$+++ FALSE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honors. Thank you very 16 much. Justice Kennedy, you asked a question about 18 serendipity. That's why you conduct an investigation. 19 That's why you look into records. That's why this Court 20 has said counsel has a duty to conduct a thorough, 21 diligent investigation. When I go and I look at a prior 22 conviction court file, I don't know if it's going to say 23 that my client is the worst person on the face of the 24 earth or, as in this case, that it's going to provide 25 evidence leading to mental retardation, significant mental 1 disturbance, and a critically abusive childhood. You do 2 that investigation because the prior conviction court file 3 may contain information that reduces the weight of the 4 aggravating factor. In this case, had counsel gotten that court 6 file, as Justice Breyer summarized, they would have had 7 evidence that not only would have reduced the weight of 8 that prior aggravating factor that -- but that would have 9 provided something mitigating for this jury. Indeed, Ms. 10 Zapp quotes at page 41 the 1980 ABA standards that very 11 clearly say, please, for mercy, do not substitute for an 12 actual thorough investigation of mitigating evidence and 13 presentation of mitigating evidence. And all these 14 lawyers ended up with was an unconnected plea for mercy 15 because they didn't take the steps that reasonable counsel 16 take in a capital case. I also urge this Court not to be misled by -- by 18 some commentary today about the testimony of the lawyers. 19 At page 506, Ms. Dantos very clearly says that she's read 20 the transcript of the penalty phase when that prior 21 conviction court file is brought in by the trial 22 prosecutor. And at that point, Mr. Charles, her co 23 counsel, says, I object. I've never seen that before. 24 And the trial prosecutor says, you could have walked down 25 the hall and gotten it just like I did. That's -- that's 1 what's she referring to at page 506. As far as the doctors are concerned, I'll just 3 read to Your Honors just from Ms. Dantos herself. She has 4 read at pages 473 and 474 what Dr. Gross had said. I only 5 looked at mental state at the time of the offense. Is 6 that the purpose of the -- is that what the purpose of the 7 evaluation was? Yes, that's what it was as to Dr. Gross. Then at page 475, Dr. Cooke, the second guy. 9 Did the same evaluation? Yes, the same evaluation. At page 476, Dr. Sadoff, the third doctor. And 11 is that also what Dr. Sadoff did? Yes. Page 476. All three of the mental health professionals 13 looked at Mr. Rompilla's mental state at the time of the 14 commission of the crime.
04-5462 +++$+++ 26005 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Only? Only? Only?
04-5462 +++$+++ 26006 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's the lawyer herself saying 17 what she asked the doctors to do. And if you look at --
04-5462 +++$+++ 26007 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I think it's uncontested that 19 all three looked into that, but the point that has been 20 made is that the last two went beyond that. Do you 21 disagree with that?
04-5462 +++$+++ 26008 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I disagree with that, Your Honor, 23 and you should look at those pages from Ms. Dantos and 24 then look at the pages from Dr. Cooke and Dr. Sadoff. This is Dr. Sadoff at page 1105. I would have 1 examined him, Rompilla, for competency to stand trial. I 2 would have examined him for criminal responsibilities, and 3 I would have examined him for possibility of mitigating 4 circumstances at the time of the commission of the crime. There is a universal difference between that 6 type of mental health examination and a life history 7 mitigation examination that looks to are there factors in 8 your life that the jury should consider as mitigating. 9 Was there abuse? Was there neglect? Was there 10 mistreatment in the home? Was there all the stuff that is 11 in the records about this case that these counsel did not 12 obtain? Not one piece of paper. Justice Kennedy, not 13 even to rebut the aggravating factor, not even to do that. 14 A basic duty. Even if you put a spin over mitigation, I 15 as a lawyer want to rebut that aggravating factor. The 16 prosecutor tells me that's the file to go look at. I go 17 look at it. Any reasonable lawyer, I would think, would 18 do that.
04-5462 +++$+++ 26009 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Nolas.
04-5462 +++$+++ 26010 +++$+++ TRUE +++$+++ MR. NOLAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honors, thank you very much.
04-5462 +++$+++ 26011 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The case is submitted.
04-563 +++$+++ 26015 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Deneice A. Mayle v. Jacoby Lee Felix. Mr. Chan.
04-563 +++$+++ 26017 +++$+++ FALSE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: In 1996, Congress made an important change to the habeas corpus proceedings by enacting a one-year statute-of-limitations period. This Court is now asked to consider, for the first time, how the relation back doctrine under Federal Rule of Civil Procedure 15(c)(2) is to be applied in the habeas context. The Warden advocates a rule for relation back is that the conduct transaction occurrence set forth in the initial petition is the core of operative facts to support the constitutional violations alleged. This rule is far superior to the Ninth Circuit's rule, which a majority of Circuits have determined effectively nullifies AEDPA's one-year statute of limitations.
04-563 +++$+++ 26018 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, of course, I take it the issue doesn't even arise unless the amendment is accepted under 15(a).
04-563 +++$+++ 26019 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor.
04-563 +++$+++ 26020 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if there's been lack of diligence, et cetera, and -- or some prejudice to the State in the delay of the amendment, the Court just won't accept the amendment.
04-563 +++$+++ 26021 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I should clarify that --
04-563 +++$+++ 26022 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or am I wrong about that?
04-563 +++$+++ 26023 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that in Civil Rule 15(a), the Court has discretion and grants -- needs to grant leave to amend after a responsive pleading has been filed. However, a Petitioner gets to file a responsive pleading -- excuse me, an amended petition, as a matter of right, before a responsive pleading is filed.
04-563 +++$+++ 26024 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it was filed before a responsive pleading --
04-563 +++$+++ 26025 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this case --
04-563 +++$+++ 26026 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- was filed --
04-563 +++$+++ 26027 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- it was Your Honor.
04-563 +++$+++ 26028 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in this case.
04-563 +++$+++ 26029 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How long does it usually take to file a responsive pleading?
04-563 +++$+++ 26030 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It depends, Your Honor. It varies with -- case to case. In a lot of pro se --
04-563 +++$+++ 26031 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the State has a certain amount of flexibility in deciding when to respond, does it not?
04-563 +++$+++ 26032 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, the rule does not require the State to respond to petitions until ordered by the District Court. And to get back to the question of Rule 15(a), even after a responsive pleading has been filed, Rule 15(a) does not serve the same purposes as Rule 15(c). The statute of limitations is strict defense, which is meant to apply whether the filing is a day late or a year late, whether there is prejudice, or whether there is dilatory motive. To ameliorate the harsh effects of the statute of limitations, Rule 15(c)(2) provides an exception to the statute of limitations, but that exception is limited to the parameters of Rule 15(c)(2), itself. So when the Court is provided with a untimely claim, it determines whether or not that claim is time-barred, pursuant to 15(c)(2).
04-563 +++$+++ 26033 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, just before we leave 15(a), let's assume that we do not accept your position in this case and there's potential for a gaping hole in AEDPA. Does the State have some ability to protect itself by filing a responsive pleading and cutting off the amendments, or must it do so only if it is ordered by the Court to file a response?
04-563 +++$+++ 26034 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For pro- --
04-563 +++$+++ 26035 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you see what I'm --
04-563 +++$+++ 26036 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do understand, Your Honor. And for pro se petitions, without counsel, the State is not even aware of the existence of the petition until it is served by the Court. And that occurs after the Court has made a determination as to whether or not a responsive pleading is required. It can happen that a Petitioner will be able to amend his petition after the statute of limitations has already expired, and we would not even know of that until after everything had been done.
04-563 +++$+++ 26037 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you -- you have --
04-563 +++$+++ 26038 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, please, go ahead.
04-563 +++$+++ 26039 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I was going to say, if -- on the scenario that you have raised, in which you don't even know that the petition has been filed, because the -- you don't -- the Court hasn't called for a response, the whole rationale behind the narrow reading is absent, as I understand it, because you point out that the rationale for the narrow reading is that the first pleadings put you on notice as to the case that you have to meet. And you shouldn't then have to be given an entirely new case to meet after you've been put on notice and taken whatever preliminary steps you've taken. But in the scenario that you're talking about, you have not been put on notice, because you don't even know there is a petition there yet. You have not been led to prepare a case which has now changed. So it seems to me that your rationale does not apply in the case in which you do not yet have notice, and, hence, have not filed a response, for that reason.
04-563 +++$+++ 26040 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But even in that scenario, we are still prejudiced by the fact that now we have to address additional claims that would otherwise be time-barred. We do not get a chance to --
04-563 +++$+++ 26041 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but that -- the problem with that is that a -- the whole point of a relation-back rule is to get around a time bar. That's why you have them. And I thought your argument was, "Well, you shouldn't allow them to get around this time bar, because we have been put on notice, we have begun to prepare our case, and we should not then be presented with an entirely new case." And so, that's why, it seems to me, your preparation point, in effect, is trying to limit a rule, the whole purpose of which is to get around the time bar. If you don't have the preparation point, you don't have an argument.
04-563 +++$+++ 26042 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I was addressing the situation in which we -- in which we can answer first. And I think that I responded, in the reply brief, that that would be an onerous burden on the State.
04-563 +++$+++ 26043 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, it would be. But, again, in the case that you're talking about, the very value that you're arguing for -- i.e., "We ought to be able to rely on the notice that we have given" -- is an argument which hasn't arisen yet, because there's no factual basis to make.
04-563 +++$+++ 26044 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that situation would occur not as frequently as the situation in which we face an amendment after we have notice, Your Honor.
04-563 +++$+++ 26045 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Chan, there is really no way for the State entirely to protect itself by -- even by filing an answer immediately. That would protect it against the automatic acceptance of an amendment, but it wouldn't protect it against the District Judge's ability to grant an amendment after the response.
04-563 +++$+++ 26046 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Your Honor.
04-563 +++$+++ 26047 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There's no way to get any protection against that, no matter how promptly you respond.
04-563 +++$+++ 26048 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely correct. And Congress could not have intended its statute-of-limitations rule to be -- to have its effectiveness dependent upon the Court exercise of discretion under Rule 15(a).
04-563 +++$+++ 26049 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The discretion --
04-563 +++$+++ 26050 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why --
04-563 +++$+++ 26051 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Which has liberally granted amendments.
04-563 +++$+++ 26052 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The discretion under 15(a), at least in the general run of civil proceedings, that is to be liberally exercised in favor of the pleaders that are so -- so it's a different -- the 15(c) relation-back test is quite different from the general attitude to pleading amendments, "Well, we'll let the Plaintiff," or, here, the Petitioner, "make the pleading alteration, and then it will be there, and the Court will make a determination of whether the pleading is good or not." But, at the 15(a) threshold, it's not much -- it's not much of a screening device, is it?
04-563 +++$+++ 26053 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. The better screening device is in Rule 15(c)(2). As mentioned, Rule 15(c)(2) is the provision that determines whether or not a claim is time-barred. And 15(a), then, can determine whether or not the claim can be amended if it is not time-barred.
04-563 +++$+++ 26054 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Chan, do you think the Rules of Civil Procedure should be applied in habeas cases after AEDPA the same way they are in civil -- other civil litigation?
04-563 +++$+++ 26055 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the Court is referring to Rule 15(c)(2), our argument is that Rule 15(c)(2) is not a rule of automatic relation back, in civil terms, in civil cases; and, therefore, should not be applied as a rule of automatic relation back in habeas cases.
04-563 +++$+++ 26056 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what if we were to determine that in regular civil litigation it is relatively automatic? What would your position be with respect to habeas cases after AEDPA?
04-563 +++$+++ 26057 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, my argument would be that the habeas Rule 11 provides that, to the -- to the extent that the civil rules are not inconsistent with the federal habeas provisions and rules, that they may be applied. And I think that Rule 11 compels a reading that if you have one application that is inconsistent with AEDPA's provisions and the framework of habeas corpus, and another interpretation that is not inconsistent, then you must go with the interpretation that is consistent with AEDPA.
04-563 +++$+++ 26058 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you have more than Rule 11; you have Section 2244, which says that an application for habeas corpus, quote, "may be amended as provided in the rules of procedure applicable to civil actions."
04-563 +++$+++ 26059 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that --
04-563 +++$+++ 26060 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, I don't think it's even a close question whether the rules of procedure for amendment in civil actions apply.
04-563 +++$+++ 26061 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's no question that -- we are not questioning that Rule 15(c)(2) applied to habeas corpus, but Section 2242 does not give any guidance as to how 15(c)(2) should be interpreted. And I believe that guidance comes from Rule 11.
04-563 +++$+++ 26062 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Chan, can I ask you a question, based on your experience? I'm sure you've had a lot of experience in this area. This particular claim was about six months beyond the statute of limitations when he asked to relate back. It would seem to me that that would normally be the case, something about that amount of time would be an issue, because it takes time to process these, and they had to get counsel appointed. And counsel comes in and wants to amend the petition, usually, I suppose, in a pro se petition. Is it -- would I be correct in assuming that normally in cases of this kind we're talking about a delay of only a few months?
04-563 +++$+++ 26063 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For pro se petitions who have been assigned counsel, Your Honor?
04-563 +++$+++ 26064 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, no, normally -- the issue of whether or not there should be -- the petition may have the benefit of the relation back normally is -- involves a delay of not more than, say, five or six months, in a normal case.
04-563 +++$+++ 26065 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't have any statistics on that, Your Honor. But even if it were only five or six months, that would --
04-563 +++$+++ 26066 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You still lose the benefit of the statute. You lose an important right. But I'm just wondering about how serious a problem it is.
04-563 +++$+++ 26067 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It can be a more serious problem in capital litigation, where you're dealing with many more claims, which could be more complex, which could require exhaustion for the -- before the federal review. It just depends on the nature of the claim and the nature of the issues involved. I think that the statistics that were cited in the Justice Department study have different dates for how long cases pend, depending on the nature of the claim, whether it be for prosecutorial misconduct, ineffective assistance, and so forth.
04-563 +++$+++ 26068 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But in the capital case, you've got a specific provision in there. I mean, for the capital case, which is the one, I agree, you worry about most, because there's reason to delay there, Congress provided specifically for states to opt in; and when they opt in, they get the benefit of pretty rigorous time bars.
04-563 +++$+++ 26069 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, Your Honor.
04-563 +++$+++ 26070 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And so, why -- I mean, isn't the answer to the capital-case problem exactly the answer that Congress gave, and, if a state does not want to opt in, then the normal amendment rules apply?
04-563 +++$+++ 26071 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Chapter 154 provisions do set forth a fast track for capital cases if the State can establish certain appointment procedures for counsel. However, it did not speak to the interpretation of Rule 15(c)(2), and Congress could not have intended that the statute of limitations not apply to Chapter 153 simply because of Chapter 154.
04-563 +++$+++ 26072 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is your definition of the test under 15(c)(2)? I mean, on the one side, the argument is -- Felix's argument is, it's the entire trial episode, right?
04-563 +++$+++ 26073 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor.
04-563 +++$+++ 26074 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And is yours that every single objection that might be made in this entire trial record, every one, is a separate transaction or occurrence, for purposes of 15(c)?
04-563 +++$+++ 26075 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For purpose of 15(c)(2), our interpretation is that the kind of transaction occurrence is that core of operative facts that support the constitutional claims. That means that the objections -- it is not necessarily true that one objection claim would not relate back to a second objection claim. It just depends upon whether they're closely related. In this case, the claims are not closely related. You have a claim made of confrontation -- excuse me -- confrontation clause, by the admission of Williams' videotaped evidence; and then you have the admission of evidence of a coerced confession statement. However, it takes an entirely different set of facts to establish that new claim.
04-563 +++$+++ 26076 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The successive petition rules, or the rules prohibiting successive petition, seem to treat the entire attack as one -- as one legal theory, as one case. And it seems to me to be in -- somewhat intentioned for that, for you to break it down the way you want to under Rule 15(c).
04-563 +++$+++ 26077 +++$+++ TRUE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that the Respondent made a similar argument, based on a res judicata claim, and it was noted in the treatises that were cited that you have different intents behind res judicata and the relation-back doctrine, and they just do not apply that way. I'd like to reserve the remainder of my time.
04-563 +++$+++ 26078 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Very well, Mr. Chan. Ms. Blatt, we'll hear from you.
04-563 +++$+++ 26080 +++$+++ FALSE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The relevant conduct, transaction or occurrence in the habeas context is the set of facts that are asserted in support of the particular grounds for relief under habeas Rule 2. That reference point best preserves Congress' intent under AEDPA to accelerate the filing and disposition of habeas proceedings.
04-563 +++$+++ 26081 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you, Ms. Blatt, taking the position that that is a tighter test than would apply ordinarily to the mine run of civil cases under 15(c)?
04-563 +++$+++ 26082 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think, Justice Ginsburg, our fundamental point is, there is no counterpart to tort or contract action, with habeas. There is just no analog. And that is because there's not only Rule 2, which imposes this heightened across-the-board fact pleading requirement, but it's also because those pleading rules work in tandem with all the other unique habeas rules that apply only to habeas that serve to narrow the timing and scope of habeas review.
04-563 +++$+++ 26083 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's a -- it's a little odd for the statute to say that the rules apply; and then we look to the rules, but we interpret it differently. I certainly see the common sense of your position, but I'm just having a problem with 15(c)(2).
04-563 +++$+++ 26084 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I just don't think it's different, both -- regardless, you've got to come the case and figure out what is the relevant-conduct transaction or occurrence in a habeas petition. And there's the extreme view of viewing it as the entire trial or conviction, or there's another view as -- look at it as what the habeas rules require, and that is the prisoner to identify a particular unconstitutional conduct or occurrence that gives rise to a basis for relief. Now, under the Ninth Circuit's view, a prisoner can timely file one claim and then add any number of completely different claims after the one-year period. For instance, a timely Batson challenge could then -- after the one year, the claim could add claims of ineffective assistance of counsel, Brady violations, or coerced confession. And to have to resolve those claims would significantly extend the limitations period beyond the one-year period.
04-563 +++$+++ 26085 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, this case isn't as extreme as that, is it? It has to do with evidence admitted at trial.
04-563 +++$+++ 26086 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's -- well, that's true, it takes in trial errors, but that's a lot. Ineffective assistance of counsel is a trial error. Coerced confession, confrontation clause, discriminatory selection in the jury -- I mean, I don't know if that's a trial, or maybe pretrial -- but it does take in a lot, and I don't think there's a close call that they relate to different actors, different time periods --
04-563 +++$+++ 26087 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, certainly in the civil-case context, generally, the interpretation has been pretty broad. And I suspect if we try to narrow it a lot, we're going to have a lot of litigation about this point.
04-563 +++$+++ 26088 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure about that. This has been the rule in the majority of Circuits for five or six years now, since 1999 or 2000, and it hasn't generated a lot of problems. And that's because, Justice O'Connor --
04-563 +++$+++ 26089 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can you articulate the rule that you want? Be as precise as you can, if you would.
04-563 +++$+++ 26090 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be the set of facts that are asserted in support of the grounds for relief in the original habeas petition. And the reason why this hasn't generated a problem, Justice O'Connor, is that -- in the way the Courts of Appeals haven't really had to identify a test -- is because they're so disparate in time and type. You have an ineffective-assistance-of-counsel claim that's timely raised, and then there's discriminatory selection of the jury.
04-563 +++$+++ 26091 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How about a case --
04-563 +++$+++ 26092 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If I sue for negligence or, in any civil action we might -- we might imagine, there might be three or four ways in which the Defendant has injured me, and the Tiller case, the railroad case, tells us that it's a single action. And do you concede this, that you're asking us to interpret this differently and more narrowly than in the civil context?
04-563 +++$+++ 26093 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-563 +++$+++ 26094 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or do you concede that?
04-563 +++$+++ 26095 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I concede that -- it's hard to answer that, Justice Kennedy, because a habeas proceeding is not a train accident. And there is --
04-563 +++$+++ 26096 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it's hard for me to figure it out, too, but it seems to me that what you're saying is that we have a different rule, because this is habeas.
04-563 +++$+++ 26097 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the civil context, you always have a question of, Do we let in other loan transactions in a breach of contract, or, Do we let in another pattern or practice or -- of similar products? I mean, there's line-drawing, when it comes up in the civil context, all the time, every day in District Courts. But, Justice Kennedy, in habeas there are more than ordinary principles of finality at stake that aren't -- that just aren't true in any tort or contract action. And this Court said that in the Calderon decision. And the reason is because of the interest in not just the prosecutor in having adequate notice --
04-563 +++$+++ 26098 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So to complete Justice O'Connor's -- the answer to Justice O'Connor's question, you say, "And we interpret this differently in habeas than in other cases, because of finality concerns."
04-563 +++$+++ 26099 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would be --
04-563 +++$+++ 26100 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You want us to interpret it differently.
04-563 +++$+++ 26101 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be totally acceptable, because of the distinct interest in not only the finality in the interest of society, and repose --
04-563 +++$+++ 26102 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I'm sure it would be acceptable, but what's the authority for interpreting the rule two different ways, depending on the case?
04-563 +++$+++ 26103 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's not like there's a habeas civil proceeding that we're asking for a habeas -- habeas proceeding to be different. There is no counterpart to a tort action or a contract action where it's liberal pleading requirements under Rule 8, and every single grounds for relief in a habeas proceeding there is a requirement that the prisoner actually identify all the grounds and the particular facts in support of that, and those heightened pleading requirements focus the proceeding on that particular transaction.
04-563 +++$+++ 26104 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, let me -- let me ask you how that would work in this case. The original claim is that there was a Fourth Amendment violation in admitting, you know, unlawfully seized evidence. Later, the Petitioner wants to amend to claim ineffective assistance of counsel, because counsel totally overlooked the leading case, directly on point, on this particular evidence. Is that arising out of the same operative set of facts, or is -- or is that something different? Clearly, the facts are not exactly the same. Close enough?
04-563 +++$+++ 26105 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we'd look to the common core. And I think we would argue that one is focusing on counsel's performance, and the other is on police misconduct. But, Justice Souter --
04-563 +++$+++ 26106 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but if that's -- if that's the line you're going to draw, then it seems to me that, in effect, what you are saying is, you can't amend. Because I can't imagine an operative set of facts that are going to be much close than -- in the real world, than the -- than the two sets that I gave you; and if they're not close enough, you're really arguing for a no-amendment rule.
04-563 +++$+++ 26107 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's amendment all the time in the majority of Circuits that have applied the Government's test, and it comes up in two scenarios --
04-563 +++$+++ 26108 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not if you were the judge.
04-563 +++$+++ 26109 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, that's not true, Justice Souter.
04-563 +++$+++ 26110 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but, I mean, why --
04-563 +++$+++ 26111 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because --
04-563 +++$+++ 26112 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- why --
04-563 +++$+++ 26113 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Let me just say, on the attorney- ineffectiveness one, it's completely besides the point what the Government's view is, because the claims are completely derivative, and the prisoner gets no benefit whether he gets the amendment or not, because, in order to show procedural default, he's going to have to show attorney effectiveness, and he just doesn't get anything additional, one way or the other, and it really doesn't matter which claim he asserts first. But the reason why amendment occurs all the time is because our rule allows the prisoner to amplify facts such that if he raises a Miranda claim or a Strickland claim, and doesn't allege custody or doesn't allege prejudice under Strickland, he can amend, after the one-year period. And also --
04-563 +++$+++ 26114 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you can amend -- you can amend your factual basis, as it were, but you can't amend your claims.
04-563 +++$+++ 26115 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, the way you get claims, which is really the -- the direct text on the rule says you can add a claim if it arises out of the same -- is if the transaction relates to the -- to give you an example, to an involuntary confession, you could have an amendment of a Miranda claim that arises out of that police -- alleged police misconduct that culminated in the admission of the confession. You could also have a Massiah violation that related back to a Fifth Amendment claim. And you could have other types, too.
04-563 +++$+++ 26116 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It seems to me that the reason for the -- for defining the relation back the way the rule does is interest in fairness to the Defendant you don't want to let him be surprised; whereas, your claim, as I understand, is really based entirely on the interest in finality and repose.
04-563 +++$+++ 26117 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think the interest of notice is part of it. I mean, it doesn't always trigger when the State hasn't -- or the Federal Government hasn't answered. But statute of limitations are not only about fairness, in terms of preserving evidence, but the interest in repose --
04-563 +++$+++ 26118 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but the definition --
04-563 +++$+++ 26119 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and closure.
04-563 +++$+++ 26120 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- in the rule is really to protect the interest in fairness, because interest in repose is always the same.
04-563 +++$+++ 26121 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that -- it's to preserve the statute of limitations, but if the relevant transaction is something narrower than the conviction, then the interest of repose sets in. And, I mean, the other side has, you know, the same point -- it's if you draw it out broad enough --
04-563 +++$+++ 26122 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the interest in repose is always there. You'd always like to preserve the defense, whenever you can. That's really what's at stake here.
04-563 +++$+++ 26123 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think what's at stake is Congress' intent in passing the one year. And it's fundamentally inconsistent with that to have a prisoner timely file one claim and then potentially add an unlimited number of claims, no matter how different and -- in time and type --
04-563 +++$+++ 26124 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even if they all come in just two or three months after the statute's run.
04-563 +++$+++ 26125 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-563 +++$+++ 26126 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's really not a big deal.
04-563 +++$+++ 26127 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a six-month difference is a 50-percent extension of the limitations period, which is a big deal. And Congress wanted a --
04-563 +++$+++ 26128 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And here, it was five months.
04-563 +++$+++ 26129 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it was five months.
04-563 +++$+++ 26130 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Here.
04-563 +++$+++ 26131 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was five months. And --
04-563 +++$+++ 26132 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you relying, Ms. Blatt, at all on the difference between the pleading rules for civil cases, generally, and habeas, where you do have a whole set of pleading rules, separate the habeas rules?
04-563 +++$+++ 26133 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ May I answer? I think we're relying on both habeas Rule 2 and the principles under AEDPA on finality.
04-563 +++$+++ 26134 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Ms. Blatt. Mr. Porter, we'll hear from you.
04-563 +++$+++ 26136 +++$+++ FALSE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you. Mr. Chief Justice, and may it please the Court: I'd like to respond to the finality concern, because I think that really goes to the heart of this case. Three weeks ago, this Court, in Rhines versus Weber, unanimously approved of the stay-and-abeyance procedure, because the Petitioner's interest in obtaining review of his federal claims outweighed the competing interests of finality and speedy resolution of the federal petition. Now, Mr. Felix's case is even more compelling than Rhines, because, unlike the stay-and-abeyance procedure, which is just the power -- the inherent power of the Court to control its docket, here we're talking about the command of Congress. In Section 2242, of the judicial code, Congress provided, specifically, that the rules governing amendments of habeas petitions be controlled by the rules governing civil procedure. The only rule regarding --
04-563 +++$+++ 26137 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's true. I mean, we can accept that, but we still have to interpret what's a transaction or occurrence, I assume. And is it open to us, in the habeas context, to take a narrow view of that?
04-563 +++$+++ 26138 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I believe that under this Court's decisions about how you determine what Congress did, Congress operated against a backdrop of how Rule 15(c) was applied by this Court and the lower courts. And in 1948, when 2242 was adopted, Tiller was very recent; it was a 1945 case. It must have been -- and we assume that Congress, like normal citizens, know what the law is, and they developed the rule against that backdrop.
04-563 +++$+++ 26139 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that was -- that was a rule for tort cases; it wasn't a rule for habeas cases. And, as pointed out by the Government, habeas cases are fundamentally different, in that the notice that you give to the opposing party in tort cases, ordinary civil cases, is very vague. It's just, you know, what the event was, "I got hit by a train." You don't have to say, "Wherein, the train was negligent -- or the railroad was negligent," or anything else; just, "I got hit by a train." Whereas, with respect to habeas corpus, there are rules that require specifying all the grounds for relief available to the Petitioner, state the facts supporting each ground. It seems to me that those different pleading requirements suggest that what is the relevant transaction or occurrence for the one is not the same as what is the relevant transaction or occurrence for the other.
04-563 +++$+++ 26140 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's a very good point I'd like to address, because I don't think we hit that -- upon that in our briefs. Habeas 2 -- habeas Rule 2 does require fact pleading, but the purpose of that is not to give notice to the other party, as the Solicitor General and the Warden suggest. The petition is not served on the Warden in habeas cases, so they don't even get a copy of the petition; it is filed with the court. The purpose of the fact-pleading requirement of Rule 2 is so that the District Court, under Rule 4 of habeas rules, can perform its screening function to determine whether the petition is facially valid or not. That requires some sort of facts to be plead. And that's in the Advisory Committee notes. It's also the requirement of 2243 of the Judicial Code, that the District Court review the petition so that wardens are not disturbed with every pro se litigant's Petitioner and have to respond.
04-563 +++$+++ 26141 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Whatever the reason for it is, certainly you can interpret the rules to say that the pleading requirement being different and much more specific, the amendment process should be different.
04-563 +++$+++ 26142 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that that's -- Congress reasonably could have said that, and reasonably could have said that -- amended 2242, for example, when it passed the Antiterrorism Act, and said, "Generally, yes, the rules of civil procedure apply for amendments," but we're -- there should be a narrower rule.
04-563 +++$+++ 26143 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you don't need an amendment, I don't think. If you're talking about a transaction, the question is, What is the transaction? And in habeas it may be quite different than in other civil things.
04-563 +++$+++ 26144 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that the only basis for determining what "transaction" is, you have to look at the -- if you -- if you're right, that we should have some kind of different rule for habeas than all other civil proceedings, well, then it has to be grounded in the habeas statutes. And if -- when you look at the habeas statutes, it says, "Confinement must be in violation of the constitutional" --
04-563 +++$+++ 26145 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But then --
04-563 +++$+++ 26146 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- "laws which" --
04-563 +++$+++ 26147 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, what's bothering me about this case is, I don't know that the Government needs to argue that there is a different rule. As I read the lower-court decisions, what they've done is used the words "core operative fact." Core operative facts in a tort case, where the engine of Train A runs into the caboose of Train B, is that collision. And the decision that the front -- the locomotive should have been lit, as well as the back of the caboose, seems, arguably at least, the same operative fact. Core operative facts. But to say that a witness, in the middle of the trial, was treated unconstitutionally seems, at least arguably, quite a different set of core operative facts from the fact that the Defendant was questioned before the trial. Now, that seems to me related to the nature of habeas, but it still seems to me that those words, "core operative fact," the same words, work differently in the two situations. And to adopt your approach also strikes me as running around the one-year statute of limitations. Now, those are my concerns, and I would appreciate your addressing them.
04-563 +++$+++ 26148 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I hope I can put those to rest. On the first concern, I think that there are differences between a train wreck and habeas. Most of my habeas cases are train wrecks, so I hope that's not -- but I think there is a logical difference between them. But I think when you look carefully at the case of Tiller, those really were very different facts about the head car not being lit and the rear of the locomotive not being lit. After all, those were two separate legal claims, as well.
04-563 +++$+++ 26149 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, Mr. Porter --
04-563 +++$+++ 26150 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The first one --
04-563 +++$+++ 26151 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- all that would be required to allege, to take the four-line complaint -- all that the Plaintiff would have to say in that tort case is, "The train was negligently operated," with nothing more specific than that. And then the particulars could come out later. Under habeas, you can't do that. You must set out your grounds, and the -- Rule 2 is very specific about that. So, it's a very different approach to what you have to allege, going in.
04-563 +++$+++ 26152 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree, Your Honor, but you -- I think you need to step back and look at the purpose for the difference in the pleading rules. The purpose is, if the -- if the reason was that you have to give specific facts to put the other side on notice, I would say that there is a compelling argument that that should be -- that should inform this Court's decision about how Rule 15(c) should be read. But it's very clear, from 2243 and from habeas Rule 4, that the purpose for requiring the facts underlying the claims is not to give notice to the other side, but to allow the District Court to perform its screening function to determine whether the -- whether the petition is facially valid or not. If it's not valid, then the Warden is not even served with the petition. It just -- the petition is simply dismissed.
04-563 +++$+++ 26153 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can you file -- can you file a request for a more specific statement in habeas, as you can in a civil case?
04-563 +++$+++ 26154 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, under Rule 81 of the Federal Rules of Civil Procedure, and Rule 11, unless application of that rule is contrary to, or inconsistent with, the habeas statutes or rules, then it is applied.
04-563 +++$+++ 26155 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could we go back? Because I'm still concerned with the fact that Claim 1, which is a claim on January 2 that police arrested the Defendant and didn't read him Miranda warnings properly; Claim 2 is a claim that, two and a half years later, the prosecutor, during the trial, made some prejudicial arguments. Now, I think, just common sense, Do those arise out of the same core operative facts? Absolutely not. The facts are totally different. The only thing that brings them together is that there was a single legal proceeding. And, at the same time, if I adopt this approach that doesn't seem to comport with the common sense, I'm running around Congress' effort with the one-year statute. So what is your response?
04-563 +++$+++ 26156 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ First of all, the response is that the statute -- the rule does not use the term "core operative facts."
04-563 +++$+++ 26157 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but every lower court that has -- not every one; you know better than I -- but it seems like a commonly found expression when lower courts have interpreted the Rule 15 and have looked to Tiller. Is that true, or not true?
04-563 +++$+++ 26158 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not in the habeas context. None of those --
04-563 +++$+++ 26159 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, of course not in the habeas context. I'm saying that if we're trying to apply, in the habeas context, the same test that's used elsewhere in the civil law, wouldn't we use the word "core operative fact"? Or would we? I'm not as familiar with this as you. What is the answer?
04-563 +++$+++ 26160 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe so. I think that --
04-563 +++$+++ 26161 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No?
04-563 +++$+++ 26162 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and Wright and Miller confirmed this, that actually courts have tried to develop different tests: Is it the same evidence that they're going to use? Is it a core of operative facts? And, in the end, they say there's no better test than the one set forth in the rule, and that is conduct, transaction, or occurrence.
04-563 +++$+++ 26163 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, of course, we're trying to decide what is the transaction.
04-563 +++$+++ 26164 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, but the reason why is that there is a body of case law that determines -- that's told us what that means.
04-563 +++$+++ 26165 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's --
04-563 +++$+++ 26166 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And Tiller tells us it means that it's the events leading up to the injury. And so, that's how, I think, that that phrase has been interpreted, and that's what Congress adopted --
04-563 +++$+++ 26167 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's take --
04-563 +++$+++ 26168 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about -- what about the case law in the lower courts that Justice Breyer referred to, dealing with the core operative facts and adopting --
04-563 +++$+++ 26169 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, I think -- they don't -- I'm not aware of those cases using --
04-563 +++$+++ 26170 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you say let's look at all the cases that have followed Tiller, and -- but apparently a lot of the courts adopting the core operative fact have developed that without full regard to Tiller.
04-563 +++$+++ 26171 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, the lower courts -- the most usual interpretation of Tiller that we've cited in our brief that the lower courts perform is this idea of any events leading up to the ultimate injury --
04-563 +++$+++ 26172 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in the habeas context, haven't the majority of the Circuits had a more restrictive rule than the Seventh Circuit and the Ninth have espoused?
04-563 +++$+++ 26173 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, they have.
04-563 +++$+++ 26174 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. And so, I think the question is, Should we follow the majority of the Circuits?
04-563 +++$+++ 26175 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And you should not, because what those courts fail to do is, they fail to appreciate that Congress has already spoken, in two different ways. First, Congress adopted 2242; and when it adopted AEDPA, it did not amend 2242, and it did not amend Rule 15(c). And, second, in death-penalty cases, which, after all, is really the only set of cases where there is an incentive to delay, Congress specifically spoke. And in 2266(b)(3)(B) Congress said, "Amendments to petitions shall not be permitted after answers are filed unless the Petitioner can make a showing for a second or successive petition." Now, this is Lindh versus Murphy all over again. This is a case where Congress has spoken as to Chapter 154. In Lindh versus Murphy, it said, "That chapter will be -- the amendment will be applied retroactively to cases then pending." They did not do anything with Chapter 153 cases. The negative implication, when Congress so specifically addresses this issue for one limited, narrow set of cases -- and that really make sense in death-penalty cases, does it not? When the State gives the death-penalty Petitioner lawyers for State post-conviction review, then all of those claims are done in state habeas, they are brought together, it fulfills the claim-gathering function of the Antiterrorism Act; and then, very logically, Congress determined, "We should have a very, very strict restriction of amendments."
04-563 +++$+++ 26176 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me -- let me ask you. Take the two events in this case, and as explained by Justice Breyer, a Miranda violation in the questioning and then a problem with the confrontation clause in the trial, two years later. Let's assume that there was a 1983 civil action for those violations, and let's assume that both are actionable. Different cause of action. Is that -- how would -- how would an amendment be treated in a civil action? Based on most of the lower-court precedents you've been -- would the amendment related back?
04-563 +++$+++ 26177 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe so. In civil-rights actions, there are -- the constitutional rights at issue are the injury. So one -- if a person started out with saying their injury in the civil-rights action was the admission of the evidence --
04-563 +++$+++ 26178 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You would think no relation back, in the case I put --
04-563 +++$+++ 26179 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because there -- it does not relate to the same injury. In habeas, by contrast, the injury is the custody that's in violation of the Constitution laws and treaties --
04-563 +++$+++ 26180 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The injury --
04-563 +++$+++ 26181 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of the United States.
04-563 +++$+++ 26182 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- I suppose, in the -- in the Miranda violation, is introducing the evidence at the time of trial.
04-563 +++$+++ 26183 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-563 +++$+++ 26184 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's the point. You don't look two and a half years back just to -- you decide what happened at the trial.
04-563 +++$+++ 26185 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. And in this --
04-563 +++$+++ 26186 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right. So what about the injury? What about that? That the injury -- the trial's over, say, six weeks -- the injury takes place at the time of introduction? Or is the injury the whole time the -- the guilty verdict?
04-563 +++$+++ 26187 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that the that's the problem with the -- with the Warden's proposed test. Are these, quote, "closely related claims"? That is not, I suggest, a -- nearly a bright-line rule that would help the District Courts in determining what is, and what is not, part of the same transaction. So, I don't think that that's a real viable alternative. I -- again, I think it's important for the Court to go back -- if it's going to create a different rule in habeas, it has to have some grounding --
04-563 +++$+++ 26188 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why doesn't the 1981 -- given -- maybe I don't -- haven't followed it correctly, but why doesn't the 1981 claim, then, relate back? I think the injury that took place from both violations took place at the time of trial.
04-563 +++$+++ 26189 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, maybe I wasn't following the hypothetical closely enough.
04-563 +++$+++ 26190 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay, I --
04-563 +++$+++ 26191 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If --
04-563 +++$+++ 26192 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Forget it.
04-563 +++$+++ 26193 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. Well, let -- if we can return to the facts of this case, I think these -- we fit comfortably within the definition of "transaction," because both of the rights that Mr. Felix is asserting in this habeas petition are trial rights. Under this Court's decision in Chavez versus Martinez, in this Court's decision in Pennsylvania versus Ritchie, both the Fifth Amendment and the Sixth Amendment rights are trial rights. Those statements, independently, when they were taken by the same police officer, did not violate any rights. They only violated Mr. Felix's rights when they were introduced in the -- in the prosecution's case in chief.
04-563 +++$+++ 26194 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the argument as to whether it was properly done, whether the ruling was proper, is going to go back to the time of the Miranda interrogation.
04-563 +++$+++ 26195 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree that those facts are relevant, but it's the operative facts that are --
04-563 +++$+++ 26196 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why isn't that an operative fact?
04-563 +++$+++ 26197 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it is -- the operative fact -- what makes it actionable is that the statements were introduced at trial.
04-563 +++$+++ 26198 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but --
04-563 +++$+++ 26199 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If those statements weren't introduced at trial --
04-563 +++$+++ 26200 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you've switched. We were talking about "operative fact," and now you said "actionable fact."
04-563 +++$+++ 26201 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe those are the same principles, Your Honor.
04-563 +++$+++ 26202 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Porter, if I understand you right, you are saying that, in the habeas context, the counterpart to an injury in a tort case is the unlawful detention, itself. Am --
04-563 +++$+++ 26203 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-563 +++$+++ 26204 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I right?
04-563 +++$+++ 26205 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-563 +++$+++ 26206 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. So if that's the injury, could the habeas Petitioner come in with a complaint that says, "I am being detained in violation of the Constitution," period, "and I need a lawyer to spell out the details"?
04-563 +++$+++ 26207 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Petitioner could file such a petition. They have been called "placeholder petitions." But, clearly, under Rule 4 of the habeas rules, such a petition would be subject to immediate dismissal by the District Court, because it doesn't conform with habeas Rule 2, which requires that all of the claims be alleged and all of the facts be alleged.
04-563 +++$+++ 26208 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about the other part of what's been bothering me? To be specific about it, it sounds like a very good system. The system is, "Habeas Petitioner, you file, within a year, your petition with one claim, and we'll look it over," says the judge, "and if it sounds like you need a lawyer, we'll give you a lawyer, and then he'll come in with a whole lot more." And that's quite protective. But suppose you said that to Congress. They passed this thing. And you say, "You know, your year here, it doesn't really mean a year. It means a year for this initial filing, and then what's going to happen is, they'll give him a lawyer, and he'll come back and say the interest of justice, but, really, it always, almost always, favors the Petitioner, and the State isn't that fooled, and, really, it's not a problem for them, and" -- what would that Congress have said? That's -- that is very much disturbing me.
04-563 +++$+++ 26209 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the answer to that is that statutes of limitations are ubiquitous in civil proceedings. But just as ubiquitous is Rule 15(c) relation back. They go hand in glove. And Congress, in 1948, just three years after the Tiller case, when it enacts 2242, must have had on its mind that relation back goes along hand in glove with the statutes of limitation; and, not only that, but how relation back has been construed by the courts. So I don't think it's any surprise to Congress now all of you -- now all of a sudden that we say, "Oh, you know, by the way, there's this relation back that's going to give us maybe four or five months longer than the year." I don't think Congress is at all surprised by that. And Congress just adopted new rules of habeas proceedings, in 2004; didn't amend Rule 15(c), didn't provide another rule in habeas, didn't amend 2242. And, as far as the potentials for abuse here, the Seventh Circuit's -- Judge Easterbrook's decision for the Seventh Circuit in the Ellzey case has been on the -- on the books for more than two years now. And I would suggest that if the parade of horribles that the Warden has suggested, about year-long delays and all of these potential abuses, in fact, are allowed by the rule that we seek here, that the Warden or the United States would have come to this Court and said, "Look, here are the abuses. They are happening right now." Well, in fact, Ellzey's been cited twice in all -- in these years, by the District Court, to allow relation back. Mr. Felix's case has not been cited at all in a published case. So, I think that the parade of horribles is theoretical and not practical. As Justice Kennedy pointed out, you have Rule 15(a) as a backstop. And once the answer is filed, that really cuts off any right to file an amendment as a matter of right. Then --
04-563 +++$+++ 26210 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I think that, first of all, the amendment may be made before there is a defensive plea. As Mr. Chan pointed out, that the Warden doesn't even get the petition until it's been screened by the Court. The other is the understanding, on the civil side, of Rule 15(a). It's a very liberal pleading rule. The threshold for granting permission to amend a pleading under 15(a) is very easy to pass.
04-563 +++$+++ 26211 +++$+++ TRUE +++$+++ MR. PORTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In Foman versus Davis, this Court responded to that concern and said that District Courts have ample authority under 15(a) to deny amendments to petitions -- or amendments to initial pleadings. It said, for bad-faith or dilatory tactics, but then said even undue delay -- so you don't even require a showing of bad faith -- for prejudice to the other side. So all of the concerns that the Warden has raised are specifically identified by this Court to give the District Court the right to deny an amendment to the petition. And so, I believe that those powers in the District Court are very ample, indeed. Plus, we have -- the states have their own ability to protect themselves. As one of Your Honors mentioned, we have 2266. If the -- if the states opt in, they get the protections of 2266. States have their own mechanisms. All but six states in the Union have statutes of limitations, or very firm laches doctrines, that will prevent the elongated delays that the Warden is worried about in this case. And as far as the notice provision, Justice Breyer announced the unanimous opinion for the Court this morning, in Durachem, and said, "It doesn't take much to give the defendant fair notice." Now, I'd like to leave the Court with the judicial aphorism that wisdom often never comes at all; it should not be rejected merely for coming late. We ask this Court to affirm the decision of the Circuit Court. If there are no more questions --
04-563 +++$+++ 26212 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Porter. Mr. Chan, you have four minutes remaining.
04-563 +++$+++ 26214 +++$+++ FALSE +++$+++ MR. CHAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Felix assumes that Congress knew about the Tiller case, and assumed that Congress would know that Tiller would be interpreted in a way as to allow relation back in a situation such as this. However, as pointed out, Tiller is not a habeas case. Rule 15(c)(2) did not even have any application to habeas cases at the time, until it was decided. Also, I wanted to respond to Justice Souter's earlier question about examples of relation back in habeas corpus cases. And I've cited two examples on page 27 of the Warden's brief. Unless there's any other questions, I have no more rebuttal.
04-563 +++$+++ 26215 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Chan. The case is submitted.
04-5928 +++$+++ 26220 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument now in number 04-5928, Jose Medellin versus Doug Dretke. Mr. Donovan.
04-5928 +++$+++ 26222 +++$+++ FALSE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, may it please the Court: This case was exceptionally important when the Court granted it, and it's even more important now. It belongs in this Court. At the same time, Mr. Medellin requests that the Court hold the case while he goes back to Texas. I'd like to explain why, before I turn to the merits. Under its decision last year in ex parte, so far, Texas has modified its longstanding two-forums rule. Court of Criminal Appeals will now entertain a subsequent application for habeas writ, even if there are proceedings pending before a Federal Court, so long as the Federal Court stays its proceedings. The Court designed that procedure so that a habeas petitioner could return to state court to exhaust an unexhausted claim without compromising his right to federal habeas -
04-5928 +++$+++ 26223 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Ordinarily do not think of that as covered in this Court.
04-5928 +++$+++ 26224 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the Court of Criminal Appeals did not specify; but we find, of course, ourselves in an unusual posture, in the sense that the sequence of events here are such that even -- the Court of Appeals has decided the Avena judgement claim, the Court has --
04-5928 +++$+++ 26225 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But has this Court ever just said, "Fine, we'll hold it in abeyance and come back next term"? I can't recall that we've done that.
04-5928 +++$+++ 26226 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's an -- it is, in fact, an unusual posture. And it --
04-5928 +++$+++ 26227 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, it would be more likely that we would dismiss this, improvidently granted.
04-5928 +++$+++ 26228 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the case, though, has not been improvidently granted, with the greatest respect to the Court. Of course, the case was important when the Court granted it. The question, whether or not the United States will comply with an international obligation that every actor here -- the United States, Texas, and the Petitioner -- all recognize as binding, is an important question. The President has now come in and said that it's even more important, by saying that, in fact, the United States will comply.
04-5928 +++$+++ 26229 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it's so odd, because usually what happens, if there is something that could occur at the state court level, is the state court itself would hold off until this Court had resolved whatever the case was. So, this is a very unusual request.
04-5928 +++$+++ 26230 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We recognize that it's an unusual request, because of the unusual circumstances. And, of course, the alternative, if the Court is not prepared to stay, or, for example, vacate, in light of the presidential determination, remand to the Court of Appeals --
04-5928 +++$+++ 26231 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I think -- I think granting a stay could be seen as validating the position of the government without ever having an opinion on it.
04-5928 +++$+++ 26232 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, actually, I think that a stay would actually show respect to each of the relevant actors here. And so --
04-5928 +++$+++ 26233 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why shouldn't we just go ahead and decide the case, if we can?
04-5928 +++$+++ 26234 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we believe that there are, in fact, firm grounds on which this Court could grant -- - could decide the question presented, because, in fact, for the reasons -- there are really three points here -- for the reasons we've laid out, the Court, under the direct command of the Supremacy Clause, has -- - can give effect to the Avena judgement as the rule of decision. The President's determination, in fact, eliminates the -- even setting aside its independent force, eliminates the basic objection of Texas to that course of action. And then, of course, there's the basic independent full force of the Supremacy Clause. So if I may move to that, the Court, as I said, has recognized the importance of the United States complying with an international obligation reflected in treaties entered into by the democratically elected representatives of the American people. I want to address the question presented first, because, I -- before -- setting aside the presidential determination -- and just take a look at where we stand after the briefing by the parties as a -- - on the question whether or not the Avena judgement provides the rule of decision. First of all, there's an extraordinary amount of agreement between petitioner and respondent. Respondent agrees that the Vienna Convention is a binding legal commitment of the United States. The Respondent agrees that the Convention is self-executing. The Respondent agrees that the United States agreed to submit disputes concerning the application and interpretation of the Convention to the ICJ. He agrees that the United States agreed that any determination by the International Court of Justice would be binding.
04-5928 +++$+++ 26235 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How about the creation of a private right of action?
04-5928 +++$+++ 26236 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there is a -- there is a -- there are basically three objections that the Respondents made. One of them is the cause of action. But the Respondent confuses the creation of a cause of action with what the -- a treaty will typically do. The treaty here lays out the rights, and the treaty lays out an individual right, as determinated by the ICJ. The treaty will not customarily create the cause of action. For how the United States will abide by its legal obligations -- that is, how the United States will give effect to the international obligation -- we look to domestic law.
04-5928 +++$+++ 26237 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the courts -- the courts usually do that, don't they?
04-5928 +++$+++ 26238 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right. But we would look -- we would look to how the United States has provided for the implication of that international obligation. Here, in the first instance, we have a direct command of the Supremacy Clause, a very fundamental choice made by the Framers --
04-5928 +++$+++ 26239 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That doesn't speak to the private right of --
04-5928 +++$+++ 26240 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The private right of action is found here in the habeas statute itself, which provides that a person in custody in violation of laws, treaties, or the Constitution of the United States can seek --
04-5928 +++$+++ 26241 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, presumably, that could provide some cause of action, quite irrespective of the ICJ decision.
04-5928 +++$+++ 26242 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it could -- it -- the cause of action is, itself, provided by --
04-5928 +++$+++ 26243 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yeah, I mean, you don't --
04-5928 +++$+++ 26244 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the rest of the --
04-5928 +++$+++ 26245 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you don't really have to get into whether that judgement is enforceable here. I mean --
04-5928 +++$+++ 26246 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-5928 +++$+++ 26247 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- we could look at -- look at it from the perspective of the habeas statute.
04-5928 +++$+++ 26248 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's right. I mean, there are three -- there are three basic questions that need to be --
04-5928 +++$+++ 26249 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But is it right -- I mean, you couldn't -- you could not -- unless the ICJ decision gave a right to an individual, and you had no claim under the federal habeas statute -- and it is unusual, is it not, for a judgement of the International Court of Justice to recognize the right of an individual, as opposed to being just a judgement between nations?
04-5928 +++$+++ 26250 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it may be that, because of the character of the typical dispute that the International Court of Justice hears, that it does not typically address such a question. But, plainly it has jurisdiction to do so when the underlying treaty confers a right. And that's exactly one of the questions that was litigated between Mexico and the United States in the Avena judgement. And the Court held that, in fact, this treaty does provide individual rights. So --
04-5928 +++$+++ 26251 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How many -- how many times has the ICJ held that, that a treaty, apart from being contract between the signers, confers individual rights?
04-5928 +++$+++ 26252 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it has, of course, held, in -- first, in LaGrand and then here in Avena. In most of the cases the ICJ has held, however -- it has dealt previously, for example, with rights in this situation. For example, rights in the nature of diplomatic protection. For example, when the United States went to the ICJ in the Tehran hostages case, it went, not only in its own behalf, but in the exercise of diplomatic protection. And in that posture, the ICJ --
04-5928 +++$+++ 26253 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But there was no individual in that case. That was a case of one nation against another. There was no individual, like the Plaintiff here.
04-5928 +++$+++ 26254 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, in fact, in that case the United States did assert the rights of its nationals who were held hostage. It didn't -- the case didn't come down on that point. But, likewise, the famous Barcelona --
04-5928 +++$+++ 26255 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's what I asked, if this -- I know that, certainly in the context of the Vienna Convention, there have been the series of decisions you mentioned; but I was wondering whether, outside the Vienna Convention, there has been any similar judgement of the ICJ that operates directly on individuals.
04-5928 +++$+++ 26256 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, for example, in the Barcelona Traction case, which is another case where, again, there were rights of a particular company and a particular national decided with -- under the guise of diplomatic protection. And that's the posture which this case went forward. Mexico asserted rights not only on its own behalf, but on behalf of its nationals. And, therefore, if we think of the -- the three objections that was -- the Respondent has made to whether this Court can give us back the Avena judgement, they come down -- they include the two we've just discussed, and one more. First, they've said there are no individual rights here. But, of course, the treaty, as this Court suggested in Breard, talks specifically about rights -- quote/unquote, "rights." And that, of course, is what the ICJ held. If the Avena judgement is binding, if the Avena judgement informs the Vienna Convention with binding effect, then that question is not the question this Court needs to answer. The second point --
04-5928 +++$+++ 26257 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think -- do you think that the President can enter into a treaty, with the approval of Congress, that would provide that, in a particular combat, the Commander in Chief will be somebody other than the President of the United States?
04-5928 +++$+++ 26258 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the Court has recognized that the only limitations of the treaty-making power are affirmative litigations -- affirmative limitations within the Constitution, itself.
04-5928 +++$+++ 26259 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right.
04-5928 +++$+++ 26260 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
04-5928 +++$+++ 26261 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you think that the Constitution provides the President shall be Commander in Chief, and, therefore, that can't be given away.
04-5928 +++$+++ 26262 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-5928 +++$+++ 26263 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right?
04-5928 +++$+++ 26264 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- no, the -- obviously, a treaty would not be able to amend the Constitution.
04-5928 +++$+++ 26265 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right. Well, what if I think that the Constitution provides that all questions of federal law -- statutory, treaty, constitutional -- are to be decided, ultimately, by the Supreme Court of the United States. Can a treaty give that away?
04-5928 +++$+++ 26266 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, a treaty would not be -- this treaty does not do that. When the --
04-5928 +++$+++ 26267 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It does if we're bound by the determination of Avena. It does if I have to believe that individual rights were created here, without reexamining the question on my own.
04-5928 +++$+++ 26268 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but the -- but the Court has -- it -- the Court has regularly -- and it has never been an objection to Article III power to give effect to a judgement that has been rendered in another sphere by another adjudicatory authority. That happens all the time with respect to --
04-5928 +++$+++ 26269 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not a question concerning United States law.
04-5928 +++$+++ 26270 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But this is a question --
04-5928 +++$+++ 26271 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're talking here about a question of United States law, What is the meaning of this treaty that the United States has entered into? Do you know another case where we have -- we have been bound by a judgement of a foreign court or an international court concerning the meaning of United States law?
04-5928 +++$+++ 26272 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what the Court would be giving effect to is the determination by the political branches themselves to enter into the treaty.
04-5928 +++$+++ 26273 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I have a question that is much along the same lines, whether this Court must apply Avena as the rule of decision, or perhaps say, "No, it does not have to do that." Then you're left with looking at the treaty itself. And does that -- can that take effect as American law?
04-5928 +++$+++ 26274 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the treaty does take effect as American law. And --
04-5928 +++$+++ 26275 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And, can --
04-5928 +++$+++ 26276 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in fact --
04-5928 +++$+++ 26277 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- is it open in this case to -- for this Court to apply that, not Avena?
04-5928 +++$+++ 26278 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the Court could, in fact, apply the treaty. It could reach its own interpretation of the treaty, in accord with the Avena judgement. But we think --
04-5928 +++$+++ 26279 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that open in this case?
04-5928 +++$+++ 26280 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it surely would be open in this case, but it would not be open at this point. We've suggested alternative bases by which the Court could conform with Avena. But we do believe that Avena, in fact, controls the decision, for this reason, that, in the first instance, the political branches have agreed to the substantive obligations under the treaty; in the second place --
04-5928 +++$+++ 26281 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, suppose we think it can't control? Now, then what's open to us?
04-5928 +++$+++ 26282 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if the -- if the Court decided that the Avena judgement did not control, then it would obviously go to the terms of the treaty itself. But our argument is that, in fact, by virtue of the political branches' decision and in operation of the treaty -- of the Supremacy Clause, the Court must be -- must give effect if the Court reached a decision --
04-5928 +++$+++ 26283 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, can the President give an interpretation of the treaty unilaterally that is binding on us? Can the President sign a treaty and then, a year later, give an interpretation of that treaty that's binding on us, insofar as what the treaty means?
04-5928 +++$+++ 26284 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the Court has --
04-5928 +++$+++ 26285 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can he do that?
04-5928 +++$+++ 26286 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, no, the treaty -- the Court has traditionally accorded deference to the Executive's determination, but has not -- has not given that --
04-5928 +++$+++ 26287 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right. I would say that that, ultimately, is for this Court. Then, if that's so, how can he agree with the -- to confer jurisdiction on the World Court, which would do the same thing?
04-5928 +++$+++ 26288 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because it's not just the President that's done that; it's the treaty-makers, it's the President acting with the advice and consent of the Senate in a context in which they are empowered to authorize a treaty -- enter into a treaty. And they've done --
04-5928 +++$+++ 26289 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, is the constitutionality of the President's action here before the Court in this case?
04-5928 +++$+++ 26290 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the --
04-5928 +++$+++ 26291 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Only peripherally. Is that an issue for us to decide in this case?
04-5928 +++$+++ 26292 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The question that we'd ask --
04-5928 +++$+++ 26293 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I hadn't thought so. Do you think it is?
04-5928 +++$+++ 26294 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- we've asked that the Court take account of the President's determination in this respect. The Vienna Convention sets out a -- sets out substantive obligations. The ICJ -- we've agreed to go to the ICJ for the interpretation obligation of those obligations. The ICJ has now ruled. The only objections, in effect, that the Respondent has made is to say, "This Court can't decide that question," because it's within the power of the political branches. In effect, it said, "This Court should step back and await the permission of the Executive." And in Mr. Medellin's view, this Court does not need to do that. But if you did need to do that, which is the Respondent's essential objection, the President has now said, not only should -- not only can the Court give effect to the Avena a judgement, but that it's in the paramount interest of the United States that it do so, and that it do so promptly, and that, therefore, any question about the -- about the effectiveness of the Avena judgement has, on Texas' own terms --
04-5928 +++$+++ 26295 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What's the case --
04-5928 +++$+++ 26296 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- on Respondent's --
04-5928 +++$+++ 26297 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- what's the case that you're citing for this proposition, that the President and the Senate can, in effect, confer on an international tribunal the obligation to bind this Court with reference to an interpretation of a treaty? What's the best case you've got for that?
04-5928 +++$+++ 26298 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it goes to the Supremacy Clause itself, Justice Kennedy. It's --
04-5928 +++$+++ 26299 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you're telling me you don't have a case.
04-5928 +++$+++ 26300 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'm not suggesting that there is direct precedent in this Court for this circumstance. We recognize that the circumstances presented in these particular --
04-5928 +++$+++ 26301 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Were you saying "binding," or are you saying that we "show deference to" the President's own interpretation of the treaty, as applied to this 51-case set? In respect to that deference, I suppose, he interprets the treaty in such a way that the Avena decision, in his opinion, as applied to this 51-set -- -case set is what the treaty means.
04-5928 +++$+++ 26302 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, he has, in fact, come --
04-5928 +++$+++ 26303 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that right, or not?
04-5928 +++$+++ 26304 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's right. He has -- he has, in fact, endorsed the notion that the United States should comply.
04-5928 +++$+++ 26305 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if it is -- what I'm wondering is if this is similar to that insurance case out of California, where, in fact, we gave considerable deference to Mr. Eisenstat's interpretation of the relationship of the treaty to the insurance laws of California.
04-5928 +++$+++ 26306 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it -- that is true. And the Garamendi --
04-5928 +++$+++ 26307 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That was not an interpretation that ousted this Court of jurisdiction over the matter, though, was it?
04-5928 +++$+++ 26308 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the --
04-5928 +++$+++ 26309 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Don't you think that's a little bit different?
04-5928 +++$+++ 26310 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the Garamendi case did, in fact, endorse the President's power. It's similar to the Dames & Moore case --
04-5928 +++$+++ 26311 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but in that case it was overseeing arrangements that were made by our government, not -- they didn't have that much local authority.
04-5928 +++$+++ 26312 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's -- that is a distinction in the cases, but they still come down to a notion that -- both Garamendi and Dames & Moore -- to the President's authority to give effect to international obligations.
04-5928 +++$+++ 26313 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but --
04-5928 +++$+++ 26314 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And here we have --
04-5928 +++$+++ 26315 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- doesn't the President, in Dames & Moore, enter into an agreement with Iran?
04-5928 +++$+++ 26316 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's right. But that's -- that situation doesn't really distinguish the cases, because in Dames & Moore v. Regan there was, in fact, an agreement, and the President acted pursuant to that agreement. But here we have --
04-5928 +++$+++ 26317 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But we decided, in Dames & Moore, that he was acting pursuant to the agreement.
04-5928 +++$+++ 26318 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they did act pursuant to the agreement, and that's what the Court decided, but that's precisely what the President is doing here. The President is giving effect to commitments made by the United States in the Vienna Convention, in the Optional Protocol, in the ICJ statute and in the United Nations charter.
04-5928 +++$+++ 26319 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But we didn't --
04-5928 +++$+++ 26320 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So if --
04-5928 +++$+++ 26321 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- we didn't decide it on the basis that President Reagan says, "This is what in particular the agreement affected." We examined it for ourselves.
04-5928 +++$+++ 26322 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, but -- and the Court looked at the -- the Court did not reexamine the terms of the agreement. What the Court decided in that case was that it was within the President's foreign-affairs authority to enter into an agreement that would essentially required American claimants to go to the Iranian-United States Claims Tribunal.
04-5928 +++$+++ 26323 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That doesn't -- that doesn't involve an interpretation of the treaty that is rendered by somebody else and that is binding upon this Court. I mean, it's just a matter of different magnitude. To say that there can be private claims, fine; but that doesn't say that the interpretation of a treaty entered into the by the United States is subject to a court, other than this Court.
04-5928 +++$+++ 26324 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The treaty itself is what the United States has committed itself to. It's the treaty in addition --
04-5928 +++$+++ 26325 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We have to look beyond the President's interpretation of the treaty. It happens that the President is interpreting it, for reasons related to what the ICJ said. But that doesn't make us have to look beyond the reason for the President interpreting it the way he wants. I mean, do we have to defer to the ICJ, or do you -- is it not sufficient to defer to the President, who is operating within his foreign-affairs power for whatever set of reasons he deems sufficient?
04-5928 +++$+++ 26326 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's precisely why we've said, in fact, what -- there are two independent sources of authority here, because, by operation of the Supremacy Clause, the ICJ, the interpretation and application of the Avena judgement would be given effect. Now we have an independent source of right in the form of the President's determination.
04-5928 +++$+++ 26327 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Except that the President doesn't think that the remedy is in federal habeas. The President thinks that the remedy is within the states.
04-5928 +++$+++ 26328 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the President has said that it should be given effect, and hasn't -- and hasn't said that it shouldn't be in federal habeas. To the contrary, the President has indicated that, in fact, habeas would be available.
04-5928 +++$+++ 26329 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, your position, I take it, is that if somehow we follow your suggestion so that the President's suggestion may be put into effect in the state courts, that there would still be a habeas jurisdiction, ultimately, over the result if you're dissatisfied with what happens in Texas. Do I understand you correctly?
04-5928 +++$+++ 26330 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, there would be --
04-5928 +++$+++ 26331 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now, that --
04-5928 +++$+++ 26332 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- there would surely be habeas jurisdiction.
04-5928 +++$+++ 26333 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that's an interesting question. Let's turn from the more cosmic questions into how you overcome the impediment that in order to get a Certificate of Appealability here, you have to show that there was -- you have to make a substantial showing of the denial of a constitutional right. What constitutional right has been denied here?
04-5928 +++$+++ 26334 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, at this point, of course, the Court need not address that question on this -- on this petition. The question that the Court granted was, Will the United States abide by the Avena judgement? And that --
04-5928 +++$+++ 26335 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, I take --
04-5928 +++$+++ 26336 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- question would be answered --
04-5928 +++$+++ 26337 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that question to be a jurisdictional question, as far as the lower court is concerned; and, therefore, I think it's a jurisdictional question for us.
04-5928 +++$+++ 26338 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, of course, for the reasons we've laid out in our brief, we do not regard it as jurisdictional for this Court. The Court clearly has jurisdiction under the petition to decide the questions on the basis that they should decide the question presented.
04-5928 +++$+++ 26339 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, no.
04-5928 +++$+++ 26340 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But even if it --
04-5928 +++$+++ 26341 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. No. We can't forego limits on our jurisdiction simply by granting the question.
04-5928 +++$+++ 26342 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, but --
04-5928 +++$+++ 26343 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You don't say, "Oh, you've granted a question; therefore, you have to decide whether you have jurisdiction or not."
04-5928 +++$+++ 26344 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But this --
04-5928 +++$+++ 26345 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ See? And, as Justice Scalia indicates, the COA is a jurisdictional requirement.
04-5928 +++$+++ 26346 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the COA is a jurisdictional requirement for an appeal in the Court of Appeals. This comes to this Court as -- on the denial of a Certificate of Appealability --
04-5928 +++$+++ 26347 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but --
04-5928 +++$+++ 26348 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and on a petition from that.
04-5928 +++$+++ 26349 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you know of any --
04-5928 +++$+++ 26350 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And so, the question raised by -- -
04-5928 +++$+++ 26351 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- do you know of any case in which a lower court did not have jurisdiction, but we do have jurisdiction on appeal from in a -- from a court that didn't have jurisdiction?
04-5928 +++$+++ 26352 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the Court -- the Court of Appeals had jurisdiction to entertain an application for Certificate of Appealability. And this Court, in turn, has jurisdiction to grant a petition from the denial of the Certificate of Appealability.
04-5928 +++$+++ 26353 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if the --
04-5928 +++$+++ 26354 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And in that posture --
04-5928 +++$+++ 26355 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- had jurisdiction to --
04-5928 +++$+++ 26356 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the Court can decide the question presented.
04-5928 +++$+++ 26357 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're simply saying that any court has jurisdiction to determine its jurisdiction. We grant you that. But, granted that, if we reach it, what is your answer to the claim that the COA requires a showing of substantial infringement of constitutional, as distinct from other sources of, rights?
04-5928 +++$+++ 26358 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first of all, we believe that in the posture that this case comes to this Court, there has been a substantial denial of a constitutional right, even in the terms that Texas defines the statute, because what we have here is a claim based on the Avena judgement -- I mean, the ICJ's interpretation and application of the Avena judgement that the Court of Appeals held in effect that had been defaulted prior to its coming into existence. Because the effect of the Court of Appeals judgement that the Avena -- dismissing the -- or denying the Avena -- deciding the Avena judgement claim -- was to say -- was to give effect to a procedural default of the Avena judgement when it had not yet --
04-5928 +++$+++ 26359 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you're saying the --
04-5928 +++$+++ 26360 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is --
04-5928 +++$+++ 26361 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the constitutional violation is the violation of the Supremacy Clause.
04-5928 +++$+++ 26362 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in that --
04-5928 +++$+++ 26363 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that what you're saying?
04-5928 +++$+++ 26364 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's a violation here of both the Due Process Clause and the Supremacy Clause. Due process --
04-5928 +++$+++ 26365 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Due Process Clause because?
04-5928 +++$+++ 26366 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because it was an arbitrary denial of a forum in which to hear the Avena judgement claim, not simply the -- a different source of right. In other words, although the Avena judgement claim comes up on Texas as a proposition as a -- under a treaty, the action of the Court of Appeals was to deny that claim without giving it a forum. That is to say, without -- that -- before it had been raised itself, before it even existed -- because the effect of the Court of Appeals was to give effect to a procedural default of a right that hadn't come into effect. And, therefore, in that context, it's effectively a due process claim.
04-5928 +++$+++ 26367 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How do you answer --
04-5928 +++$+++ 26368 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In addition --
04-5928 +++$+++ 26369 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the related -- the related question that -- well, assuming the Vienna Convention is certainly law, and treaty stands on the same footing as law, but I believe that the -- Texas and the Government have said the AEDPA statute is the later-in-time provision, and when you have two provisions with a statute treaty, the later-in-time prevails. So why did -- why isn't the AEDPA controlling, and not the Vienna Convention?
04-5928 +++$+++ 26370 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect to this claim, AEDPA itself would be, in our view, ousted by The Charming Betsey Principle. But in the particular context here, you don't have -- you don't have a conflict with respect to the constitutional claims themselves; you have a constitutional claim based on a denial a right that did not exist, and you also have a constitutional claim based on the Supremacy Clause itself.
04-5928 +++$+++ 26371 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you're talking about denial of a right that didn't exist. That seems perfectly rational, the way you put it.
04-5928 +++$+++ 26372 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's --
04-5928 +++$+++ 26373 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If the right didn't exist, it should have been denied.
04-5928 +++$+++ 26374 +++$+++ TRUE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And perhaps -- but the effect of that -- and perhaps a more prudent way to put it is that the effect of that is to deny Mr. Medellin a forum, an -- arbitrarily deny him a forum on the effect of the Avena judgement, because the effect was to deny the Avena judgement claim based on a procedural default before the Avena judgement had been rendered. If I may save the remaining -- my remaining time for rebuttal?
04-5928 +++$+++ 26375 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Very well, Mr. Donovan. Mr. Cruz, we'll hear from you.
04-5928 +++$+++ 26377 +++$+++ FALSE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: At the outset, two issues bear emphasis. First, the Court need not, and should not, address the many interesting issues of international law and constitutional law that swirl about this case.
04-5928 +++$+++ 26378 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ They really are interesting, you know. [Laughter.]
04-5928 +++$+++ 26379 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They are, indeed. And this may launch a thousand law-review articles. But with respect to the question before the Court, there is a simple and straightforward statutory basis to resolve this case; namely, that Section 2253 of the AEDPA does not allow a Certificate of Appealability for nonconstitutional claims.
04-5928 +++$+++ 26380 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Before we --
04-5928 +++$+++ 26381 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can that --
04-5928 +++$+++ 26382 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- before we --
04-5928 +++$+++ 26383 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- be waived? Can that be waived? And did Texas raise that issue in the Fifth Circuit at all?
04-5928 +++$+++ 26384 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice O'Connor, Texas did not explicitly waive this ground before the Fifth Circuit -- -
04-5928 +++$+++ 26385 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it wasn't raised in the Fifth Circuit by Texas, was it?
04-5928 +++$+++ 26386 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, it was not. But --
04-5928 +++$+++ 26387 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I assume, although we haven't so decided, that that can just be waived.
04-5928 +++$+++ 26388 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, this Court has characterized the standards for a COA as jurisdictional in a threshold inquiry.
04-5928 +++$+++ 26389 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But this is also a jurisdictional. They decided it on a jurisdictional ground. They decided that no COA lay, for the reason that they said. Now, I guess, though we wouldn't necessarily have to, we could simply say they're either right on that or they're wrong on that. And if they're wrong on it, send it back, and then you can argue whether there are other grounds; in which case, they could go into waiver, they could go into whether "constitutional" means to embrace "treaty," and all those other interesting arguments that we could write law-review articles about that were not, in fact -- they swirl around in this case, and you would not, in fact, be able to -- you wouldn't, in fact, have to pronounce on them now, here, when they really haven't been thoroughly gone into, below.
04-5928 +++$+++ 26390 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, there are alternative jurisdictional grounds this Court could address, but the COA ground is straightforward. It flows from the direct text. And Petitioner has given this Court no reason to disagree with every Court of Appeals that has looked at this question, all of whom have determined that "constitutional" means "constitutional." It doesn't mean "treaty," it doesn't mean "statute." And that's every Court of Appeals that's looked at that. Given that that ground is direct and straightforward, there is no need for this Court to venture into the difficult constitutional areas, the difficult questions of international law, when there is a straightforward statutory --
04-5928 +++$+++ 26391 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, of course, we wouldn't even have to venture into -- possibly have to venture into this issue of law if Texas were interested in following the determination of the President. I take it that the suggestion that your brother has made, that, in fact, we take no action at this point so that they may return to Texas with the President's determination, is not appealing to you.
04-5928 +++$+++ 26392 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do not believe the Court should stay this action, because whatever the resolution of the subsequent proceedings that are now filed in Texas, the resolution of that question will not control the federal-law questions here.
04-5928 +++$+++ 26393 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but does Texas have a position in response to the President's determination?
04-5928 +++$+++ 26394 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our first position would be, as Justice O'Connor said, that that question is not presented in this case. That will surely be litigated in the Texas state courts.
04-5928 +++$+++ 26395 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You said -- you said that something has started in the Texas courts. We have the motion to stay this case, and your response that it shouldn't be stayed, that we should decide this case. But what is going on, at this moment, in the Texas courts?
04-5928 +++$+++ 26396 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, this weekend, Medellin filed a subsequent state habeas application with the Court of Criminal Appeals, in which he asked the Court of Criminal Appeals to stay its hand, pending this Court's decision whether this Court should stay its hand, pending the Court of Criminal Appeals -- [Laughter.]
04-5928 +++$+++ 26397 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And so, that is a 50-page filing that they just filed this weekend in which --
04-5928 +++$+++ 26398 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And after the Texas court stays its hand, then what action is asked?
04-5928 +++$+++ 26399 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, what it asks for is to authorize a subsequent state habeas proceeding based upon the President's determination, which he characterizes as the predicate for a new claim. And if that is correct, then there is yet another problem to his getting relief here, which is that he has failed to exhaust what he claims is now the predicate.
04-5928 +++$+++ 26400 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but we don't -- we may not reach that, if Texas says, "Well, yes, you're right, it is a claim, and we'll entertain it." Does Texas have a position on that question yet?
04-5928 +++$+++ 26401 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect to whether the presidential determination is authorized, any -- that matter will be resolved in subsequent state court litigation. Any responsible state attorney --
04-5928 +++$+++ 26402 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I'm sure it will be, but does Texas have a position on that, at this point?
04-5928 +++$+++ 26403 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We would respectfully submit, as would any responsible state attorney general, that there are significant constitutional problems with a unilateral Executive determination displacing generally applicable criminal laws. But whatever the resolution of that question, that would ultimately be reviewable by this Court, on certiorari review.
04-5928 +++$+++ 26404 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, that was my next -- my question, and it follows on the question Justice Souter asked. Does the attorney general concede, or do you not, or acknowledge that there are Texas procedures in which these questions can be litigated?
04-5928 +++$+++ 26405 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There absolutely are Texas procedures in which the question of the validity of the President's determination can be litigated. And we would anticipate that that would be litigated --
04-5928 +++$+++ 26406 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that --
04-5928 +++$+++ 26407 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and resolved --
04-5928 +++$+++ 26408 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, that's what I'm trying -- I'm trying to get to, which is, What is actually the practical thing to do now? Should we stay it, with a short per curiam, which says, "Texas, go ahead," or should we do something else? Suppose we just dismiss this, as you say, on the alternative ground. Well, then what happens if Texas objects to the President's order and turns out to be right, legally? See, if that were true and then the review showed that it was true -- - I don't know that it is true, but if it were, then we should turn to the Fifth Circuit claim, and there are 51 cases that depend on it. But if we've dismissed it, by that time it's gotten mixed up in the very issue you raise. The question is, Does "constitutional" embrace "treaty"? And I think there is one case that says it does, actually; or a treatise, anyway. So that's an issue. And then they might refuse a COA on that ground. And then there might -- and we'll never get this basic question decided. I'm trying out on you the argument for actually staying it, rather than digging it.
04-5928 +++$+++ 26409 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Whatever the resolution --
04-5928 +++$+++ 26410 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you think? What do you --
04-5928 +++$+++ 26411 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do not believe the Court should stay it. Digging it would be an option. I also believe -- I believe the most correct --
04-5928 +++$+++ 26412 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why do you believe we shouldn't stay it? I mean --
04-5928 +++$+++ 26413 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe the Court should --
04-5928 +++$+++ 26414 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- as an opinion, it's based on what?
04-5928 +++$+++ 26415 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because whatever the resolution in the State Court litigation, the resolution of that question will not impact the legal question before this Court now, which is, on first federal habeas, a claim that was filed that did not rely on Avena when it was filed, did not rely on the presidential determination -- -
04-5928 +++$+++ 26416 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but is it not true that it's entirely possible that the Texas proceeding would make this issue moot --
04-5928 +++$+++ 26417 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is true.
04-5928 +++$+++ 26418 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and, therefore, avoid the necessity for deciding a lot of very difficult questions?
04-5928 +++$+++ 26419 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is true. That is frequently the case, that in a -- in a case that is being litigated, there are other proceedings that have the potential to make something moot.
04-5928 +++$+++ 26420 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And is it also true that, in the Texas proceedings, they necessarily would involve a federal question on which this Court could, if it chose, grant certiorari on direct review?
04-5928 +++$+++ 26421 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely. And the difficult questions about the constitutional authority for the Executive determination may come back to this Court, but they're not presented by the case right now before the Court. The most direct avenue, I would submit, for this Court is to resolve this decision by affirming the Fifth Circuit judgement, and by affirming it on the grounds that a COA could not issue because this was not a constitutional claim. And that would necessarily entail affirming Breard to the extent that Breard noted that a subsequently enacted statute, the AEDPA, to the extent of a conflict, superceded the Vienna Convention.
04-5928 +++$+++ 26422 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is the question -- how difficult is the question? The President of the United States has issued a document where he says, "Exercising my foreign-affairs power, in my opinion the treaty, as I -- I accept the meaning of the treaty as set forth by the ICJ and apply it to these 51 cases." So he's deciding that. And why doesn't he have the authority to decide what that treaty means in these circumstances? That's his decision. And Texas is bound by the Constitution.
04-5928 +++$+++ 26423 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We would agree that the fact that the President has acted underscores the point made by both Texas and the United States, that the responsibility for determining the remedy to the Avena judgement is found in the political branches. And the fact that the President is acting underscores this, that there is no precedent for an ICJ judgement being judicially enforceable. Indeed, Respondent is aware of no country in the world that accords binding effect to ICJ judgements in their own domestic courts. And --
04-5928 +++$+++ 26424 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, Mr. Cruz, maybe the treaty becomes part of federal law if it's properly ratified and signed, as this one was. Now, it's possible that the treaty itself gives certain individually enforceable rights to Mr. Medellin. And we can disregard the question of whether the Avena judgement is enforceable.
04-5928 +++$+++ 26425 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice O'Connor, that's --
04-5928 +++$+++ 26426 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't that right?
04-5928 +++$+++ 26427 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that's absolutely correct, that this Court --
04-5928 +++$+++ 26428 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, it would be open to this Court, presumably, to say, that treaty became part of federal law when it was ratified, and Congress can enact subsequent laws. But, in any event, the treaty could give rise to individual enforceable rights. Is that correct?
04-5928 +++$+++ 26429 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To be sure, this Court could certainly determine that the Vienna Convention gives rises to the individual rights. That interpretation, however, would conflict with the express language of the preamble to the treaty, and would also conflict with the consistent position of the Executive Branch since 1969, when this treaty was ratified. For those 36 years, the State Department has consistently answered the question, that the Vienna Convention does not give rise to individual rights. And, indeed --
04-5928 +++$+++ 26430 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Did the Breard case speak to that issue?
04-5928 +++$+++ 26431 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Breard case simply made reference to -- that there was, arguably, individual rights. It didn't purport to resolve that. It said, even if there were, it is barred by AEDPA. So I don't believe the Breard case answers it, one way or the other; but, given the United States' consistent position -- and, indeed, it uses very similar language in later treaties, such as the two terrorism treaties that are cited in the United States' brief. It is worth underscoring that on every question currently before this Court in this proceeding, the United States agrees entirely with Texas, that this Court's resolution of this case should be to affirm the judgement of the Fifth Circuit because a COA should not have issued.
04-5928 +++$+++ 26432 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, if we came to the conclusion that the treaty, by its own force, did not create enforceable individual rights, then we would have to get to the question of whether the President's proclamation changes that result.
04-5928 +++$+++ 26433 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Only in the most threshold sense; because, on its face, the President's proclamation, or determination, is focused only on state courts, and what the President says is that he has determined that the Avena decision will have binding effect in state courts. So, according to the Executive determination, that does not have a binding effect on this proceeding; but, rather, on a subsequent --
04-5928 +++$+++ 26434 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But that seems to be topsy-turvy, that a treaty would have effect in state courts but not in federal court.
04-5928 +++$+++ 26435 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't disagree that the Executive could have chosen other avenues. Nevertheless, Medellin's argument that, given the Executive has said, "This should have effect in some other proceeding," we should disregard what the Executive has said about this proceeding and apply it here, notwithstanding the President's express determination it wouldn't apply here.
04-5928 +++$+++ 26436 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But isn't what the President's memorandum says exactly what the Avena judgement said? That is, the President said, "Well, the ICJ said that these people are entitled to review and reconsideration of their guilt and of their punishment. And so, I think that's what should happen. I agree with the judgement, or at least I think it should be enforced, and the only place it can be enforced is in the state court that rendered the judgement, because the ICJ said what the United States has to implement is, they have to give a review and reconsideration." Now, I suppose, as far as the ICJ is concerned, they don't care if it's done by some federal tribunal, or state, but within our system, it must be the state, mustn't it?
04-5928 +++$+++ 26437 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, certainly under the terms of the President's order, where the President said that he's determined it shall -- should be given effect, quote, "By having state courts give effect," by the express terms of the order, particularly as explained in the United States' brief, where that is conjoined with the position of the United States, that in this proceeding, on appeal from the first federal habeas proceeding, that there is no effect to the Avena judgement. That's the position the United States has articulated. And so, to the extent this Court gives deference to the Executive's position -- and in matters of foreign affairs, this Court has historically given great deference to that position -- that position states that that should have no effect upon this proceeding.
04-5928 +++$+++ 26438 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, Mr. Cruz, let me just make a suggestion. Assume you lose -- I'm not suggesting you will, but assume you do -- the net result of the proceeding, in your adversary's favor, would be that they would get a hearing in the state court, which is what -- the President's order says, "Let them have that right away." So the whole purpose of having a lot of federal litigation to decide what you can address right away by honoring the President's request, at least litigating it in the state court right away, we may be engaged in a lot of useless activity.
04-5928 +++$+++ 26439 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Respectfully, if we were to lose, and if Medellin were to prevail, his position could potentially open the door to the reconsideration of the over 100 foreign nationals that are on death row across this country, and, beyond that, to thousands --
04-5928 +++$+++ 26440 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, so could the President's order, the same thing.
04-5928 +++$+++ 26441 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the President's order is, by its term, confined to the 51 Mexican nationals. Medellin's theory is not. Medellin's theory is not even confined to those on death row; but, rather, would potentially extend to the thousands of foreign nationals --
04-5928 +++$+++ 26442 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But that can't be, in light of the United States' most recent action. I mean, we have a judgement. The judgement concerns how many people? Fifty-one? Forty-nine?
04-5928 +++$+++ 26443 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Fifty-one.
04-5928 +++$+++ 26444 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay. There is no judgement concerning anybody else.
04-5928 +++$+++ 26445 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true with respect to the Executive determination. But the ICJ's decision went beyond its authorizing statute and explicitly -- even though its authorizing statute says the ICJ has jurisdiction only to speak to the matter directly before it, in paragraph 151 the ICJ said it wasn't speaking just to the matter before it.
04-5928 +++$+++ 26446 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But this -- but if there's a claim here based on the Avena judgement, it is that the United States agreed to the ICJ's jurisdiction in Vienna Convention cases. And so, pursuant to that agreement, there was an adjudication. The United States is no longer agreeing, so there will never be another adjudication. This adjudication concerns 51 people or -- and there are no others.
04-5928 +++$+++ 26447 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But Medellin's theory that Avena should be applied as a binding rule of judgement, even without subsequent proceedings before the ICJ, could be taken to support granting habeas relief in other proceedings for individuals whose cases weren't litigated, particularly given that the ICJ in Avena purports --
04-5928 +++$+++ 26448 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, you have to -- you have to recognize that there is a distinction between this case, which is, in large part, based on a judgement of the ICJ, and other cases that would not have the benefit of that judgement.
04-5928 +++$+++ 26449 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Surely. Although the terms of the ICJ decision purport to apply more broadly than to these 51, and they explicitly say that this cannot be taken to imply that this does not apply to other foreign nationals, notwithstanding its jurisdictional statute that prevents it from doing that.
04-5928 +++$+++ 26450 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why isn't this -- the United States did consent to the jurisdiction of the ICJ in these Vienna Convention cases, and that tribunal issued a judgement. Why doesn't it get the same recognition and enforcement of any judgement of any court with jurisdiction?
04-5928 +++$+++ 26451 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under the terms of the applicable treaties, the ICJ has jurisdiction to determine, as a matter of international law, if there is a treaty breach. But those treaties also specify the remedy for any judgement of the ICJ, and that remedy, under Article 94 of the U.N. charter, is recourse to the Security Council. That was explicitly adopted as a political remedy, because it is the prerogative of the President and the political branches to determine how to respond. One of the responses open to the political branch, as the United States has articulated, is to decline to respond. And with respect to the Nicaragua case, that's exactly what the United States did. In that situation -- and that matter was ultimately litigated; Judge Mikva, for the D.C. Circuit, wrote a compelling opinion laying out that decisions of the ICJ are not judicially enforceable in U.S. courts; they are, rather, matters sovereign-to-sovereign. That same reasoning applies here. It is a matter for the Executive to determine how to apply. I would note that Medellin also presents an argument -- two arguments as to why he's presented constitutional claims. One, a due-process claim. Due process was not in the questions presented, as he authored. It was not in the brief that he wrote to the Fifth Circuit asking for a COA. The words "due process" do not appear in his merits briefs. And, indeed, under the sections -- the constitutional sections cited, he does not include the Due Process Clause.
04-5928 +++$+++ 26452 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what difference does that make, since this -- the issue to which it is addressed has not been raised either? I mean, it's a new issue, and I presume, to the extent that it may be considered at all, his response -- he can make a response to it.
04-5928 +++$+++ 26453 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He might conceivably have brought a due-process claim. And if he had brought a due-process claim, the Court of Appeals could have considered if that due-process claim met the substantive standards of the AEDPA. He didn't bring a due-process claim. He brought a treaty claim. And that's the question upon which he sought certiorari review by this Court.
04-5928 +++$+++ 26454 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I can understand the argument, that he shouldn't be allowed to raise due process here if the argument also goes to your -- the permissibility of your raising 2253.
04-5928 +++$+++ 26455 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But 225- --
04-5928 +++$+++ 26456 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's sauce for the goose --
04-5928 +++$+++ 26457 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but 2253 is a jurisdictional bar to this Court.
04-5928 +++$+++ 26458 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Then I don't see why it isn't also a jurisdictional gate for him to make a response to it.
04-5928 +++$+++ 26459 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because he didn't bring that case. Sure, there are dozens of constitutional claims he could have brought that would have satisfied 2253. He didn't bring those claims. So that's not presented by that proceeding. He's not entitled, in his reply brief, to say, "Well, you know, we could have brought this constitutional claim," given that he did not, in fact, bring that -- this constitutional claim. If Medellin's theory is adopted, it would embrace a standard beyond Fay versus Noia. Thank you.
04-5928 +++$+++ 26460 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Cruz. Mr. Dreeben, we'll hear from you.
04-5928 +++$+++ 26462 +++$+++ FALSE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: For the reasons articulated in the brief for the United States and by the State of Texas, this Court should conclude that there was no jurisdiction in the lower court to issue of Certificate of Appealability; and, therefore, the Court should not reach the many questions that Petitioner has raised in this case about the effect of the Avena judgement.
04-5928 +++$+++ 26463 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Have there been any cases in the Circuits holding that the state can waive the jurisdictional limitation on COA?
04-5928 +++$+++ 26464 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There have been cases in the Circuits, Justice Kennedy, that have held that once a COA has issued, the Court of Appeals may consider a claim that would otherwise be beyond the jurisdiction of the courts. But this is a case where a COA has not been issued, and there is a plain procedural obstacle to its issuance that this Court can determine and, therefore, obviate the need to consider the very sensitive and delicate questions that Petitioner has raised.
04-5928 +++$+++ 26465 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But is their whole question of the COA waivable?
04-5928 +++$+++ 26466 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so, Justice O'Connor, because a COA is a jurisdictional requirement. And just as a notice of appeal is a jurisdictional requirement and the prerequisites for proper notice of appeal have to be satisfied, the prerequisites for a proper Certificate of Appealability should be satisfied before this Court goes on to reach the merits of a question, which, as Justice Stevens has pointed out, may never need to be reached at all if the Texas courts recognize the President's determination with respect to the Avena decision or apply the Avena decision itself. And I think it's very noteworthy that the filing that Petitioner made at the end of last week in the Texas Court of Criminal Appeals seeking a successive petition for a writ of habeas corpus under Texas law specifically, at page 25, says that Petitioner is relying on the Avena judgement and he's relying on the President's determination, which are two new sources of law that were not available at the time the Texas courts previously addressed the matter and that now are available, which constitutes a ground for a second petition under Texas law, and that, accordingly, the Texas courts should allow this claim to be developed in the state courts and to be litigated there. To me, those statements are almost an admission that the claims that Petitioner has brought here are barred by failure to exhaust available state remedies.
04-5928 +++$+++ 26467 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Dreeben, could this question of the effect of the Avena Treaty be brought before the Court? Mr. Donovan raised, I think, the All Writs Act, and he also raised original writs in this court. If the COA doesn't work, then treat this -- I think that's what he's saying -- treat it as though it were an application under the All Writs Act or an original writ.
04-5928 +++$+++ 26468 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do think that the Court would have the option of availing itself of extraordinary jurisdiction, but, as the Court made clear in the Felker case, its exercise of extraordinary original writs would be informed by the limitations that the AEDPA imposes upon the grant of habeas corpus relief; and, therefore, the Court should look to at least the additional jurisdictional obstacle that the United States and Texas has raised; and, namely, that is that the decision that the Texas courts raised -- issued in this case is not contrary to any Supreme Court decision or a misapplication of any clearly established federal law.
04-5928 +++$+++ 26469 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So all those are -- there are a lot of reasons. Does that counsel in favor of our holding this? Here we have a case that went on a jurisdictional ground. And if we affirm or reverse that jurisdictional ground from the Court of Appeals, we'll decide a lot of issues that will create guidance. We might not have to decide it, because Texas may deal with it; or we may decide, if they come out the other way, they're wrong. But we might. And that's why I was thinking perhaps we should hold it rather than dig it, particularly because that other issue does have some authority the other way. I take it there's a treatise in the Fifth Circuit case which does say that the word "constitutional" here encompasses "treaty."
04-5928 +++$+++ 26470 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, I do not think that the Court should hold the case, pending the outcome of the Texas proceedings.
04-5928 +++$+++ 26471 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because?
04-5928 +++$+++ 26472 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Texas proceedings can consider the Avena claim and the claim in reliance --
04-5928 +++$+++ 26473 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, but suppose you lose -- see, I'm thinking, suppose you lose in the Texas proceeding, it comes here, and, for whatever reason, suppose you lost again -- you might not, but you might -- in which case, then what do we do?
04-5928 +++$+++ 26474 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the Supreme Court would have the option of granting cert to review whatever the Texas courts --
04-5928 +++$+++ 26475 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no, but suppose we thought they were right? See, suppose you lost across the board? That would be the argument for holding it -- - holding it because then you'd have another vehicle to get to these questions.
04-5928 +++$+++ 26476 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it would be close to issuing an advisory opinion for the Court to decide an important issue of federal law in which there is a clear jurisdictional bar to the issuance of a Certificate of Appealability, and I don't think that a treatise creates enough of a doubt that "constitutional" in the AEDPA, means "constitutional" for this Court to embark on a wide-ranging exploration of potentially very significant issues with constitutional overtones. The Avena decision is not a freestanding source of law that can be administered by this Court wholly apart from the President's determination. What the President did was to determine not that the treaty has a particular meaning that favors Petitioner's case, but that, as a matter of compliance with the obligation of the United States, under international law, to comply with a judgement of the International Court of Justice -- or to determine not to -- but that, in the interest of the rule of law and the obligations that were taken on, the President would create a new source of law, in effect, that would enable the enforcement of that particular judgement, without respect to the validity of the underlying merits determination that the ICJ made. But if this Court were to treat the ICJ judgement as a freestanding source of law, it would frustrate the Executive's ability to determine, in a particular case, this determination by an international tribunal should not be enforced and it should not be given effect; rather, that the President might, in a particular case, choose to -- not to comply with that determination. And it would rob the President of that freedom in international affairs were this Court to treat a determination by the International Court of Justice as a freestanding --
04-5928 +++$+++ 26477 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, is, though, a treaty that's been duly ratified and signed enforceable as part of our federal law, as this one is drafted?
04-5928 +++$+++ 26478 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is, Justice O'Connor, but it should -- properly construed as not conferring privately-enforceable rights on a criminal defendant in a criminal case. It has not one word about private enforceability in a criminal case in its language. The backdrop of the Vienna Convention was that no country had ever provided notice of rights to a criminal defendant that would then form a basis, in the event of a violation, of an attack on a criminal conviction. State practice since the Vienna Convention has not recognized, here or abroad, a privately-enforceable right --
04-5928 +++$+++ 26479 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Dreeben, how many -- how many states are we talking about for these 51 individuals involved in the case? How many different states?
04-5928 +++$+++ 26480 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure of the exact number, Justice Scalia. I think it's five or six states that have defendants that are at issue in those proceedings. And what the President determined was, with respect to those 51 individuals, observance of the ICJ judgement was warranted, as a matter of United States foreign policy, not because the United States agrees with the ICJ's rulings.
04-5928 +++$+++ 26481 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's conceivable that those five or six states could say, "The President has no authority to do this," ground one. Ground two, "Even if he did, on the merits, we reexamine." So the whole thing could go away.
04-5928 +++$+++ 26482 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is absolutely correct. And I think that's an additional reason why this Court should not rush ahead and overlook jurisdictional obstacles that may not have been apparent to it at the time that it granted certiorari, and certainly the Court did not have the benefit of the fact that the President would make a determination that state courts should provide the review and reconsideration that the ICJ had determined was appropriate. And the Court, of course, didn't know that Petitioner would then file a petition for successive writ in the Texas courts that could provide him the review and reconsideration that he now seeks this Court to announce in a ruling that would have extraordinarily broad and detrimental foreign-policy consequences for the United States' freedom to respond to the decisions of international tribunals in a manner that the President sees fit in accordance with his foreign-policy judgement. If the Court has no further questions --
04-5928 +++$+++ 26483 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Dreeben. Mr. Donovan, you have five minutes remaining.
04-5928 +++$+++ 26485 +++$+++ FALSE +++$+++ MR. DONOVAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. The Respondent came to this Court saying that he agrees with Mr. Medellin that America could keep her -- should keep her word. Here's the situation we have. Everybody agrees that these treaties are binding. Everybody agrees now that the President has determined that Mr. Medellin should get exactly what he came to this Court asking for, which is review and reconsideration from the state courts. The -- as Mr. Dreeben has pointed out, and as we advised the Court last week, in order to protect against any statute of limitations bar, we have, in fact, filed in Texas, in order to make these claims, pending the disposition here. And Mr. Medellin is prepared to go forward in state court, making exactly these claims, which the state courts have never had an opportunity to occasion. The question here is, How does this Court fulfill its function of ensuring that the United States complies with its international obligations that the President has now confirmed he will comply with? And, of course, the question here is not whether this -- whatever this Court does with respect to the question presented here -- that is, Does the Avena judgement having binding effect under the Supremacy Clause? -- in this case, would no in any way constrain the President's determination at some future point, because here we have a situation where the President has said "comply." And so, this case does not raise questions -- if it operated directly under the Supremacy Clause -- does not raise a question about what would happen if, in some future case, the political branches made a different determination once an ICJ judgement came to this country. Here, we have the President saying, "You should do exactly what -- the United States -- what the ICJ said to do." So the question is, How does one proceed? We have proposed a means of going forward that, in our view, is respectful to the authority of this Court, that is respectful to the Texas courts, and that's respectful to the President; and that is, to go forward on the subsequent application in the Texas courts, giving them two issues that they've never had a chance to address, the Avena judgement claim and the claim under the President's determination. What should not happen is, that application should not be compromised by any adverse action on this Court, and the suggestion of a dismissal might have compromising effects. At a minimum, it might be perceived as leaving in place a judgement that this Court has already said warranted review and is now, in our view, fatally undermined by the President's determination, as it has been previously fatally undermined by the plain command of the Supremacy Clause. In addition, we would, no doubt -- we're already hearing arguments from the opposition to the motion to stay -- we would no doubt hear arguments that, on some subsequence habeas which the United States says is -- would be available, that that would be a second or successor habeas, even though Mr. Medellin has never had a chance to bring the -- otherwise, to bring these claims to the Court. And, therefore, the Court might, at some point -- at this point, the best thing to do, if we are going to achieve expeditious compliance with the President's determination -- is, in fact, to stay; not to deal with any of the questions that have been raised here, but to let the Texas courts deal with them in the first instance. If it comes back to this Court in the posture of a direct -- for example, request for certiorari review from a judgement of the Texas courts -- there should be no adverse impact from anything this Court did at this posture, simply because Mr. Medellin came here. And, indeed, it was Mr. Medellin's case that presumably prompted the President to act. That would be unfair, and it would complicated the Court's own disposition. What do we have Texas saying before this Court? Effectively, Texas has come into this courtroom and said neither the President nor this Court can effect -- can give effect of the Avena judgement, because Texas has opposed the Court's authority under the direct operation of the Supremacy Clause, and now Texas has told the Court that the President can't do this either. And in the face of that suggestion, Mr. Medellin has every hope and expectation that the Texas courts will see their obligations under the Supremacy Clause in a form of both the Avena judgement interpreting and applying the Vienna Convention and the President's determination, differently than the Texas authorities have so far announced. But if it does not, this Court should have the full complement of means at its disposal in order to ensure that the United States complies with its international obligations. Mr. Dreeben has, himself, just suggested that there may be circumstances if it were not otherwise achievable. It's hard to think of a more important case for the exercise of this Court's extraordinary writs. But none of that should be in any way compromised by a dismissal, at this point, simply because the President came in in the midst -- in fact, concurrently -- into Mr. Medellin's own case before this Court and made this determination. Instead, as we'd suggest, the appropriate thing would be -- to do is to stay the case, to allow it to go forward in the Texas courts. But if the Court does not wish to stay, we would respectfully suggest that, at this point, under direct command of the Supremacy Clause endorsed by the President's determination, as well as the President's determination itself, the Court should give effect to the United States' promises. Thank you very much.
04-5928 +++$+++ 26486 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Donovan. The case is submitted.
04-593 +++$+++ 26490 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Domino's Pizza v. McDonald. Ms. Mahoney.
04-593 +++$+++ 26492 +++$+++ FALSE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The complaint in this case actually alleges that Domino's breached its obligations under a contract with JWM. It does not allege that any of the terms of McDonald's own contracts were violated. The Ninth Circuit, nevertheless, held that Mr. McDonald could recover damages so long as he could show that he had suffered some distinct injury arising out of the violation of the contract between his company and Domino's. We -- we ask this Court to reverse that holding for two principal reasons. First, Mr. McDonald did not hold any rights under the contracts between his company JWM and Domino's, and that's disqualifying under section 1981. Second, the injuries that he alleges are simply too indirect to be cognizable under an implied right of action. This Court, even in the context of express rights of action, whether RICO or the Clayton Act, has looked to the background principles of the common law to define the scope of a damage recovery. And these kinds of injuries, which are really the classic form of derivative injury, have never been recoverable.
04-593 +++$+++ 26493 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can -- can you tell me, Ms. Mahoney, just in -- in a case where the person is directly implicated -- he was the one discriminated against. He obtains in a suit the damages for the loss of the profits in the contract. What are the other damages? Does he get emotional distress?
04-593 +++$+++ 26494 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If -- if he's -- yes, you can get emotional distressed under section 1981, and --
04-593 +++$+++ 26495 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ If -- if you're contracting for yourself --
04-593 +++$+++ 26496 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-593 +++$+++ 26497 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ -- in your own behalf.
04-593 +++$+++ 26498 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. There is no standalone cause of action under Federal law simply for emotional distress that is suffered as a result of racially discriminatory conduct. Presumably Congress, you know, might do that some day, but it has not done so. And in fact, even under title VII, racially disparaging comments can cause distress to a worker and they're still not actionable unless it rises to the level of a hostile work environment.
04-593 +++$+++ 26499 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what was the plaintiff's -- it wasn't here. What kind of damages was he asking for?
04-593 +++$+++ 26500 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He is asking -- it's -- it's -- the complaint is a little unclear, but he's asking for losses that arise out of the company's failure to have revenues that would have passed through the company to him in either his capacity as a shareholder or possibly as an employee. In fact, it's important to stress how indirect these injuries really are. The gravamen --
04-593 +++$+++ 26501 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I thought they were -- they were essentially, as I guess you said a moment ago, emotional distress kinds of injuries because otherwise he'd be claiming a double recovery. So he doesn't do that because they -- they settled the contract case with the corporation for what? $46,000?
04-593 +++$+++ 26502 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ $45,000, Your Honor.
04-593 +++$+++ 26503 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so that the only thing he -- he's not claiming an economic injury, as I understand it, or am I wrong?
04-593 +++$+++ 26504 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think you're wrong, Your Honor. He actually in his complaint asked for economic damages. He doesn't specify them, but in an affidavit that he submitted to the district court, he said that his net worth had declined 8 million dollars and he is saying that he --
04-593 +++$+++ 26505 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I -- I guess that's where I went wrong. I thought those were the reasons that he was claiming that he had been distressed emotionally.
04-593 +++$+++ 26506 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Your Honor.
04-593 +++$+++ 26507 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you're -- you're saying he wants the --
04-593 +++$+++ 26508 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But either way, the outcome should be the same because emotional distress is not a standalone claim. He has to establish that he had rights to make and enforce a contract that were violated, and even if he did that, he still has to show that the damages that -- that were caused by Domino's were sufficiently direct to be cognizable.
04-593 +++$+++ 26509 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What if you have a --
04-593 +++$+++ 26510 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what he's saying is treat me as a sole proprietor. Yes, I created this corporation so I can be insulated from liability, but this is a one-person show and so I am bringing a 1981 claim and say forget the corporation. I'm the only human that's involved in this activity.
04-593 +++$+++ 26511 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think there's a couple of problems with that. I mean, first of all, these were contracts where Domino's had rights under these contracts as well, and if it had sued Mr. McDonald under the terms of the contract for failing to perform, he would have rightly said, that's not my contract. And I don't think that we can think that Congress intended this Court to simply disregard those principles that have always governed where you -- if you take the benefits of avoiding liability, you can't turn around and say, well, now that it's time to recover against Domino's, it is my contract. That's not the way the law works. He can't disown the -- the force of the law when he's taken the benefits of the law. And now, the burden here is really a moderate one. It's one that says that the recovery that is owed will come through the corporate entity. He will get whatever his share of that is through the -- the corporate processes, and he won't be able to have an independent claim for emotional distress. But --
04-593 +++$+++ 26512 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Counsel, what if you have a case where a company says we are not going to deal with any companies that have an African American as the CEO? Couldn't that CEO, the individual, claim that that policy interferes with his ability to make contracts with his company to be the CEO?
04-593 +++$+++ 26513 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-593 +++$+++ 26514 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And shouldn't he then have a right to bring a claim under section 1981?
04-593 +++$+++ 26515 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, if his company fired him because he couldn't make contracts -- in other words, they said, we -- we don't want you to be our CEO. We don't want a black CEO because, after all, we're going to lose business with these other companies -- then I think under an interference theory, that he probably could sue under 1981, sue both his company and also the third party that induced the interference. If we look to common law principles, the common law of tortious interference established various rules that were designed to provide recovery for interference when the causation was sufficiently direct, and the common law says -- this is section 766 of the Restatement and cases that follow that -- that, in essence, if the third party -- or if the defendant induces the breach, essentially, you know, tells them, this is how we want it done, we want you to fire so and so if you want our business, if they induce the breach or induce the violation, then they can be liable as well.
04-593 +++$+++ 26516 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose that McDonald had had a contract with the corporation that he gets 80 percent of the gross from every contract. Could he then sue?
04-593 +++$+++ 26517 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. There are two different things. I mean, one -- one part of it is that here his -- he doesn't say that his contract wasn't performed, but he also would have to show that Domino's was the direct cause of his loss. And the common law, under section 766, for instance, says, look, if a -- if a third party or if the defendant just made it more difficult for your employer to perform or for your company to meet its obligations, its contractual obligations, by causing it to have less money, that doesn't count. That's not inducing a breach.
04-593 +++$+++ 26518 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but -- but in this case, it's pretty obvious they didn't care about the corporation. They cared about him. He was the target.
04-593 +++$+++ 26519 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, he may have been the reason for the discrimination, but the target, in terms of the direct victim of the conduct that is alleged, was clearly JWM. It's JWM whose contracts were supposedly breached. And -- and the point is, Your Honor, the -- the law has made it clear that simply breaching a contract in a manner that makes it more difficult for somebody else to perform is not a sufficiently direct cause of the -- of the failure to perform all of the succeeding downstream contracts. Otherwise, the -- the rules of privity would simply be eroded. And so instead, it's a very narrow category of cases where a breach of contract can be viewed as the direct cause of another party's failure to perform a separate contract with the plaintiff. And let me give you an example, just to -- to show what it's talking about. If, for instance, there is a contract where I am the defendant and I have the right to approve an assignment, and the plaintiff has a contract with a third party and I refuse to approve that assignment. Then I have retained the legal control under the terms of my contract as to whether the plaintiff's contract can be performed or not. And in that circumstance, if -- if I deny approval on the basis of race, I have made it literally impossible for the other parties to perform. And that's the -- the narrow exception. It's either inducing the breach, inducing the breach of a contract, or it's making it literally impossible, but not simply making it more expensive or more difficult. And -- and I think it's important to emphasize why these rules were developed under the common law this way. In -- in part, it is to protect the very reasonable and legitimate interests of -- of innocent third parties. In -- in -- take the corporate context. If General Motors has a dispute with a major customer, and imagine that there is some sense that that -- that the customer may have breached its contracts because it -- it thought GM's work force had too many black faces, GM has got to figure out what to do about that. It's not going to capitulate and fire its work force, but it has to decide whether it wants to settle, whether it wants to litigate. It may litigate and then want to settle. But that's its claim, its contract claim, and it has to have the freedom to figure out how it ought to be settled. If every black employee at GM could file an action under section 1981 for emotional distress or for wage increases that they might not have gotten because GM lost this big piece of business, then GM would lose the ability to control the settlement of its own claim. And so -- and it's an innocent party in this fact pattern. So the law has been designed under -- under the common law to make sure that everybody's interests are sufficiently protected. And what the Ninth Circuit's, you know, ruling does here and what the plaintiffs are really asking for is to just blow through all of those rules that -- that have been designed to -- to make sense out of contracts -- contract laws and still allow some room for tortious interference sorts of principles. And under -- under the Court's cases, I don't think there is any basis to think that Congress intended the Court to create an implied right of action that is completely divorced from the common law principles that would have foreclosed these kinds of remedies.
04-593 +++$+++ 26520 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are there any --
04-593 +++$+++ 26521 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did you say there is or --
04-593 +++$+++ 26522 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- are there any cases where we pierced the corporate veil in order to help the shareholder?
04-593 +++$+++ 26523 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not that I know of, Your Honor. And I --
04-593 +++$+++ 26524 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This is kind of an inverse --
04-593 +++$+++ 26525 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, inverse -- reverse piercing.
04-593 +++$+++ 26526 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- corporate veil piercing.
04-593 +++$+++ 26527 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not that I know of, and I don't -- and I -- I think if you did that, would you do it for employees too? Can all the employees sue? I mean, where -- where does it stop? Can -- if Domino's violated a term of a contract because it was -- it wanted to cause economic loss to the employee of a subcontractor, can -- can he then sue? I mean, looking at the theory of damage in this case shows just how indirect it is. If you look at paragraphs 24 through 27 of the complaint, the sole theory of harm here is that Domino's had an obligation to provide a letter to -- to JWM, certifying that JWM wasn't in breach of any terms of the lease, and that it refused to provide that letter, and when it did so, the bank denied some financing on a project, and then that caused JWM not to have money to invest in other projects. And so then it didn't have enough money to pay its creditors, and so then it went into -- had to declare Chapter XI bankruptcy. And then McDonald didn't get as much money from the corporation as he otherwise would have.
04-593 +++$+++ 26528 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There are two separate arguments here, and I'm trying to separate them. I guess that many States have a doctrine in two areas of law. Third party beneficiaries can sometimes recover; sometimes they can't. Victims of efforts to interfere with a contract sometimes recover; sometimes they can't. And one question is whether this particular individual fits within those doctrines. And you have to be an expert on contract law to know. But in respect to the civil rights law, I guess your position is -- and this is what I want to know -- that whatever those doctrines are, they have to be the same for white people as for black people.
04-593 +++$+++ 26529 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the language of the statute says that it's protecting the -- the right of all -- the same right to make and enforce --
04-593 +++$+++ 26530 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right. So -- so it might apply. And one thing you couldn't do if you're a State is have a different rule for black people that treated them worse than white people.
04-593 +++$+++ 26531 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's correct, Your Honor, but --
04-593 +++$+++ 26532 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. And has there ever been a case in respect, whether it's affirmative action or some other thing, that interprets that -- that -- this particular civil rights statute to say that for whatever historical reasons, et cetera, black people are entitled to more protection under contract law than white?
04-593 +++$+++ 26533 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not that I can think of, Your Honor. And I think the language of this statute, though -- I mean, certainly though -- of course, the Court in McDonald did interpret this statute to -- to also protect white person -- white -- white people, people of all color, despite the language that says, you know, rights the same as -- as whites. But --
04-593 +++$+++ 26534 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do corporations have a color?
04-593 +++$+++ 26535 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, they don't, Your Honor, but all of the courts of appeals have, in effect, imputed race to corporations under circumstances where their -- their contractual rights have been violated because of the race of their shareholders or employees. And that has been well-settled, at least in the courts of appeals.
04-593 +++$+++ 26536 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So how do we deal with this? That is to say, do I have to become an expert on contract law, or do I say to the Ninth Circuit or the circuit, look, the -- the question here is not what the contract law is except insofar as it's relevant to whether there's a differential in treatment?
04-593 +++$+++ 26537 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I -- I don't think you have to be an expert on contract law. I think that this Court already held in Patterson, for instance, that section 1981 was designed to have its own Federal content, but that when we look at the term, the right to make and enforce contracts, certainly we have to interpret that in light of common law rules. And under the common law of contracts, only parties and third party beneficiaries have -- hold rights under those contracts. Under section 302 of the Restatement, it defines who a third party beneficiary is, and I think that's a good starting place. It shows us that children, you know, as in this Court's case in Runyon, are third party beneficiaries. Union members are third party beneficiaries of collective bargaining agreements under that -- under the comments in the Restatement. But the plaintiff acknowledges that the shareholders and employees are not intended third party beneficiaries of the contract.
04-593 +++$+++ 26538 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, maybe not -- maybe not shareholders in general, but what if you have a situation, like here, where you're dealing with sole shareholders? Why is that a real stretch to say that that person is a third party beneficiary of the contracts of his corporation?
04-593 +++$+++ 26539 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- for two reasons. First, the contract has to actually identify third party beneficiaries. In other words, parties need to agree on who the third -- on who the beneficiaries are supposed to be. And here, of course, there's nothing in the contracts. They haven't alleged there's anything in the contracts to identify him as that. And also, if -- if --
04-593 +++$+++ 26540 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There was nothing in these contracts requiring anything in the way of personal guarantees or anything of that sort?
04-593 +++$+++ 26541 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe so, Your Honor. It's certainly not alleged in the complaint that there is a personal guarantee. And -- and I don't think so because when Domino's sued JWM, it did not sue Mr. McDonald. And -- and as I say, if -- if they had, I'm sure Mr. McDonald would have put up his hand and said, no, thank you, that's not my contract. And I -- so I don't -- I think that really what we are asking the Court to do is just to look at the language and -- and read it in light of these well-established principles because that's what Congress would have intended the Court to do, and that he is not a third party beneficiary. He is not a party. And so the Ninth -- the rationale of the Ninth Circuit would need to be reversed because that's all it relied upon. And then the alternative theory --
04-593 +++$+++ 26542 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but that's exactly what I'm asking. If -- if you win, this case is reversed, sent back. I mean, what do -- would I tell them? And why not tell them, instead of having to delve into this, is, look, it's plausible here that third party beneficiary doctrine might cover this person? It's also plausible not. We're not experts. We don't know. You figure out what the normal rule is and apply that normal rule.
04-593 +++$+++ 26543 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think we need to do that because there's been a concession in this case that Mr. McDonald is not a third party beneficiary under the normal rules and is asking, instead, that the Court create new rules, rights greater than third --
04-593 +++$+++ 26544 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what about the other part of it, which is the -- the interference with the contract? Could we say the same thing there? We send it back, say, look, we're not experts on this, it's a matter of State law typically, and be absolutely sure, please, that whatever doctrine you normally apply is applied to this case too because it's plausible. He's the sole shareholder. He's the sole beneficiary.
04-593 +++$+++ 26545 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I -- I -- we would ask that this Court not do that for two reasons, that the alternative theory of tortious interference was never pled. It was never argued, and the district court dismissed this complaint with prejudice because there was no alternative theory. They did not move for leave to amend. So I think this Court should say one of two things about the alternative theory. Either, number one, it is waived, or number two, based on the arguments that have been advanced and the allegations of the complaint, it could not possibly be cognizable. And I -- I don't think you have to be an expert on interference law in order to reach that conclusion because --
04-593 +++$+++ 26546 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you saying this is a matter of Federal contract law, common law, Federal common law, are -- or are you saying you go State by State, in which case 1981 is some places it will be third party beneficiary, some it won't?
04-593 +++$+++ 26547 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I think, Your Honor, that in -- in the prior cases, in Patterson in particular, that the Court rejected the idea that it ought to be the State -- the law of each State that governs the scope of the rights. That argument, I believe, was advanced by the Solicitor General, and this Court said, no, they didn't think that was correct. And similarly, in Haddle v. Garrison, which is a section 1985 case, this Court looked to common law. But it -- it said that it's really Federal common law that controls these issues. So I think it's looking just to -- to State law principles to inform what Congress may have had in mind when it -- it allowed for persons to recover for violations of the rights to make and enforce contracts. Here --
04-593 +++$+++ 26548 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But is it State law today or State law back when section 1981 was passed?
04-593 +++$+++ 26549 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court has looked to both, but in Associated General -- Associated General Contractors, for instance, this Court said that it's not bound by the terms of common law that existed at the time that the statute was adopted, and -- but rather, that common law evolves, and so it's appropriate to -- to look beyond that. I think it bears emphasis, though, that the common law of tortious interference at the time that this statute was adopted in 1866 was narrower than it is today. But even under the broader views of tortious interference, the plaintiffs concede that they would not be able to recover under those theories, and instead, have said to this Court 1981 should be -- go well beyond the terms of common law interference principles.
04-593 +++$+++ 26550 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, in a -- in a sense this is stronger than some tortious interference claims because here the target is this -- this party.
04-593 +++$+++ 26551 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's always true in tortious interference claims, Your Honor, and --
04-593 +++$+++ 26552 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You mean that -- that the injured party has to be the target?
04-593 +++$+++ 26553 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. The injured party has to allege that the defendant knew about the contract and specifically intended to interfere with the performance of the plaintiff's contract. But, nevertheless, we know of no --
04-593 +++$+++ 26554 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ To interfere but not necessarily to injure him.
04-593 +++$+++ 26555 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And to injure. Well, to injure him, to prevent his performance for -- for purposes of injury, yes. And, nevertheless, we are aware of no case that has ever found that an employee of a company or a shareholder of a company could recover under common law tortious interference theory simply because it suffered losses arising out of a breach of contract with its own corporation that made it more difficult or more expensive for the corporation to recover. And I think it -- it is -- also bears emphasis of where this theory would take the Court if it were to recognize this. It would go far afield from the core requirement that there not be discrimination in the terms of an employment contract because this -- the tortious interference theory, of course, is based solely on the concept that he may have had some sort of implied employment agreement with JWM. What this would mean then is that if -- in the case of GM, if a major customer cancels a contract and GM doesn't give raises to its work force, all of the black workers would have causes of action because of the injuries that were intended because the contract was canceled on the basis of race, but their similarly situated white coworkers would not. They would have suffered exactly the same injury, but they would have completely different rights. And that shows why this derivative injury theory just doesn't fit section 1981 because at its core, it has to be about preventing discrimination in the terms of the actual contract. And here, there is no allegation that JWM subjected McDonald to any discriminatory terms of employment, and therefore, it is not -- or that it -- a breach was induced. And therefore, it isn't the paradigm case, and it would create problems down the road to recognize this -- this kind of theory. So I don't -- I don't think that we are asking the Court to do anything radical, and I think the whole issue of tortious interference can be avoided, if the Court would prefer, because the -- the theory was unquestionably waived. There are 14 paragraphs of facts in this complaint laying out the factual allegations. Paragraph 11 says that Mr. McDonald is the president, sole shareholder, and operator of the company. Nowhere in those 14 paragraphs does it say that he had an employment contract with JWM. Similarly, the cause of action paragraphs -- I believe there are 15 of them -- repeatedly identify the contract between Domino's and JWM as the contract at issue, the contract that was breached, the terms that were violated. Nowhere does it refer to an employment contract. This complaint, as the district court recognized, only pled one theory, and that was the theory that Mr. McDonald was entitled to enforce the rights of JWM. It does not plead any theory about violations of his own employment contract. And as I said, that -- even if -- even if you could infer it, you would still have to find that it's not a cognizable theory because he doesn't allege that the terms of that contract were actually violated. And in fact, at page 45 of his brief -- or 44, he concedes that JWM did perform the terms of the contract. And second, even if there had been a failure of performance, he cannot show that Domino's was a sufficiently direct cause of that failure of performance. Just -- just to give, you know, yet another example, I mean, if I -- if my employer has a -- a bad year this year because somebody breached a contract with the employer and I don't get a bonus, I -- you know, I may say I've suffered some -- some loss. The value of my contract, my employment contract, may be reduced, but my rights under that contract have not been impaired or abrogated. I have the same rights. They're just worth something less. And all that this statute does is to protect rights, the same rights as white people have. It doesn't say that you are protected from any kind of discriminatory conduct in the economy that may, in some sense, make your rights less valuable. I'd like to save the remainder of my time for rebuttal.
04-593 +++$+++ 26556 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. Mr. Lichtenstein.
04-593 +++$+++ 26558 +++$+++ FALSE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The issue here is whether, by choosing to operate as a solely owned corporation, John McDonald forfeited his 1981 protection. Rather than federalizing State contract law, section 1981 imposes a nonnegotiable nondiscrimination duty that is neither a contractual provision nor governed by contract law. Intentional racial discrimination is not merely a breach of contract terms. As this Court has already noticed -- noted, it is more akin to a tort. Domino's question presented asks that both plaintiff and defendant had to be parties to the contract. Yet, Domino's notes that non-parties without privy of contract are also protected, citing third party beneficiaries and the fact there were employers, such as supervisory employees or prime contractors. Thus, even Domino's concedes that the answer to the question presented is no. Section 1981 protection is not limited to parties to the contract. There's still, however, the remaining question of whether John McDonald fits within the statute's protection. Clearly, if he had been a sole proprietor, there would be no question of stating a cause of action. We contend that he's still protected based on three grounds: one, the intended language of section 1981; two, John McDonald's relationship with Domino's; and three, John McDonald's relationship with JWM.
04-593 +++$+++ 26559 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let's take that last one first, if you don't mind, since the argument is that you've waived that argument by not -- not raising it below.
04-593 +++$+++ 26560 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we believe that it has been sufficiently raised below. 1981 does not have any special or enhanced pleading requirements. This is notice --
04-593 +++$+++ 26561 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Where in the complaint does it allege a tortious interference claim?
04-593 +++$+++ 26562 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It doesn't allege a tortious interference claim, and this really isn't a tortious interference claim as petitioners suggest. This is a 1981 discrimination claim, and very clearly that was alleged. In terms of the requirement for wages, back wages and front wages, that is on -- I believe it's page 17.
04-593 +++$+++ 26563 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. The --
04-593 +++$+++ 26564 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Excuse me.
04-593 +++$+++ 26565 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the allegation I'm looking for -- and I -- I guess you probably didn't -- you didn't have to raise it below, given the state of the Ninth Circuit law I would suppose. But in your brief in opposition, where is it raised that this interferes with the contract between you and -- between McDonald and JWM?
04-593 +++$+++ 26566 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think it does appear there specifically. But again, the -- the question was a fairly narrow one, which is what is Ninth Circuit law? Does Gomez apply? And it went up to the Ninth Circuit on that particular level.
04-593 +++$+++ 26567 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But coming here, I would have thought our rules say that if you're going to rely on this as a ground for affirmance here, we should see it in the brief in opposition.
04-593 +++$+++ 26568 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The brief in opposition at the Ninth Circuit you're referring to or --
04-593 +++$+++ 26569 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Here.
04-593 +++$+++ 26570 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- this brief? The allegations concerning our argument about --
04-593 +++$+++ 26571 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Brief in opposition to the petition for certiorari. You -- you did not raise this.
04-593 +++$+++ 26572 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They did not raise that -- that does not appear there.
04-593 +++$+++ 26573 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So -- it's -- it's brand new to us. We -- we didn't think this was in the case at all.
04-593 +++$+++ 26574 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again, I think that if the issue is whether it was raised below or should be, then perhaps a remand back to flesh out that particular argument would be the appropriate response. I think that in terms of --
04-593 +++$+++ 26575 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It wouldn't just be an argument. You'd have to amend your complaint because it wasn't set out in the complaint.
04-593 +++$+++ 26576 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the Court believes that it more specifically needs to be set out in the complaint, then clearly that would be one of the remedies. We don't really believe that that is necessary in a sense when dealing with the question presented. Both of our arguments are really sort of formulations of the same argument. The question is did Domino's actions aim at John McDonald? Was he the precise target? That was clearly set out, and --
04-593 +++$+++ 26577 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is targeted enough? I mean, I'm thinking here not necessarily your case, but in general. Is a claim of discrimination -- I don't know the state of the law, but maybe if a minority shareholder -- a minority person is the sole shareholder of a corporation, maybe that corporation could assert protection, or maybe it couldn't. But here, I take it that the corporation JWM brought an action and won or settled for $45,000. So they're out of it. Now we're just thinking about the sole shareholder, and the sole shareholder says there's another action here. And as to the two most plausible ones that I would like to assert an action as a third party beneficiary, we've heard the other side say that you've conceded you have no right there. And as to the other one, which might be protected in many cases, that the -- knowing that what was going to happen, they deliberately interfered with the contractual relation between me and the corporation. That's what we're asking about now. And you say, well, I didn't raise that. Now, is there a reason you should be given an opportunity to raise it?
04-593 +++$+++ 26578 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that the opportunity to raise that is part of the -- the same argument. This isn't really a question of third party beneficiary. This is an issue of --
04-593 +++$+++ 26579 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You conceded that out.
04-593 +++$+++ 26580 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- discrimination and this was claimed in terms of discrimination. If in fleshing this out, it was not specified in the various ways that this discrimination was affected, that oversight shouldn't preclude the basic argument that is really the same --
04-593 +++$+++ 26581 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because?
04-593 +++$+++ 26582 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because it still is responsive to the question presented, which is, is the privity issue one that precludes recovery from John McDonald? And that seems to be the same issue, regardless -- regardless of how it's formulated. And the answer to that question I think is -- is clearly no in terms of the tort -- tortious behavior by the -- by Domino's in terms of the discrimination. It is not -- also, the damages that are --
04-593 +++$+++ 26583 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Excuse me. I -- I thought the question presented -- I didn't think. I'm reading it from the petition for writ of certiorari. In the absence of a contractual relationship with the defendant, are allegations of personal injuries alone sufficient to confer standing on a plaintiff pursuant to 42 U.S.C., section 1981? So, I mean, the question presented was -- was precisely if your client did not have a contractual relationship, would the mere allegation of personal injury, which you're now alleging, be enough to confer standing?
04-593 +++$+++ 26584 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's -- the allegation of both -- well, discrimination is a personal injury. In Goodman, this Court has said that violation of section 1981 is a personal injury. It's not a contract injury. So the question presented --
04-593 +++$+++ 26585 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the question is -- I mean, that begs the question, whether there has been a violation of section 1981, and the argument here is that there's no violation of section 1981 unless you're interfering with a contract of the plaintiff.
04-593 +++$+++ 26586 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And the response of the -- of the respondent is it is not simply your own contract or your contract with the defendant that is subject to 1981 protection. There are several instances -- and we've cited them in our brief -- such as Shaare Tefila and Runyon -- where the actual target of the discrimination is not in contractual privity with the defendant. And --
04-593 +++$+++ 26587 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you referring to Runyon, for instance? The parents always had a special relation to the child. It's something of a stretch to say that the corporation has that same relation with its own shareholder.
04-593 +++$+++ 26588 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think in this particular case it isn't a stretch. The discrimination was aimed at John McDonald. It was not --
04-593 +++$+++ 26589 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That might --
04-593 +++$+++ 26590 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There's no doubt he's the target. That's the --
04-593 +++$+++ 26591 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, I mean, the -- Domino's itself viewed JWM as John McDonald. The statement, we don't want to do business with you people -- you people isn't anyone else other than John McDonald. And the allegations go further than simply back wages and even the dignitary damages which are available under section 1981 but not under contract law is also alleged that by going after his credit and going after the banks that he had relationships with and given guarantees to and going after him personally, that this wasn't simply derivative of JWM's damages, that he had his own separate damages that, in fact, could not have been recovered by JWM had JWM filed a 1981 action.
04-593 +++$+++ 26592 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was there any overlap? The -- what damages could the corporation JWM have collected under -- had it brought a 1981 suit?
04-593 +++$+++ 26593 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It had -- it could bring the -- a suit for the damages of the lost revenue that it could have gotten from its contract. We believe, looking at State law, because we think it is a matter of State law, that here JWM would get its net profits. The wages that would be paid out would be recoverable by John McDonald. Different States may look at this differently, but that really wasn't the issue that this case had been --
04-593 +++$+++ 26594 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then the argument for sending it back, if I understand it, is this, that when you look at the question presented, no one could possibly file a lawsuit -- and you didn't -- on the theory, well, I'm hurt, so somebody should pay me. That isn't a legal theory.
04-593 +++$+++ 26595 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct.
04-593 +++$+++ 26596 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Rather, the legal theory here was that this contract-related section of the law is violated. And you want to say the simple fact that the contract wasn't between McDonald and JWM, that's a separate matter. That doesn't bar you from bringing your claim. So, on the one hand, you argue that I can bring my claim as long as I'm a target and the motive as to why they breached some other contract, the one between the two corporations. And we seem to have it conceded that even if that's too broad, there are at least some circumstances where you could bring your claim. One is if you were a third party beneficiary. That's not present here. And the second is if you are a target such that their action violates and interferes with a contract between you and your own corporation. At least you have that going for you. So you say, well, if I was wrong about the broader theory, give me a chance to allege the narrower.
04-593 +++$+++ 26597 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't --
04-593 +++$+++ 26598 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that right?
04-593 +++$+++ 26599 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't really think --
04-593 +++$+++ 26600 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm trying to be helpful in this respect. (Laughter.)
04-593 +++$+++ 26601 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand, and I do appreciate it. I don't think the broader theory, number one, was if I was a target, that's all there is.
04-593 +++$+++ 26602 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. You have to say there's certain kind of target. The kind of target is that they --
04-593 +++$+++ 26603 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Also --
04-593 +++$+++ 26604 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- were discriminatory, aiming at me, et cetera.
04-593 +++$+++ 26605 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I think that there are circumstances, in terms of alleging particular injuries and interference with the making, enforcing, or performance of contract. I don't --
04-593 +++$+++ 26606 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which you didn't allege and didn't even raise in the brief in opposition here.
04-593 +++$+++ 26607 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think we alleged that in terms of the ability of Mr. McDonald to perform on the contract, even though it was --
04-593 +++$+++ 26608 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But those contracts --
04-593 +++$+++ 26609 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ His contract with -- with the corporation?
04-593 +++$+++ 26610 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The --
04-593 +++$+++ 26611 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No.
04-593 +++$+++ 26612 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The statute doesn't say that it has to be his own contract with the defendant.
04-593 +++$+++ 26613 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's exactly the issue. And --
04-593 +++$+++ 26614 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that's --
04-593 +++$+++ 26615 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and that's how I understood this came -- case came up here. The contract you're relying on is the contract between the corporation -- between the corporation and Domino's. And can you -- can you sustain a lawsuit for the violation of that contract? There was no mention of any other contract. I don't know why we should send it back down so you can mention a contract that you haven't even thought of even when you filed the brief in opposition. So that's the issue, whether the violation of the contract between McDonald -- between Domino's and your client's corporation will allow your client to get -- to get some damages inasmuch as he was the target. That's how I understood the lawsuit.
04-593 +++$+++ 26616 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that is clearly the main thrust of -- of our position.
04-593 +++$+++ 26617 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, could you tell me when -- the -- the claim was settled when your client's corporation was in bankruptcy. Right?
04-593 +++$+++ 26618 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-593 +++$+++ 26619 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I assume your client had no -- nothing to say about -- about whether the settlement would be -- would be accepted by the trustee or not.
04-593 +++$+++ 26620 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely. He -- it was out of his hands.
04-593 +++$+++ 26621 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It was out of his hands, which means that, you know, you're -- you're sort of pleading the advantage of a corporation, limited liability and all of that, and went through bankruptcy taking that advantage, one of the consequences of which was that you left it to the corporation to settle this claim. And now you want to disclaim the advantage of a corporation and say, oh, although the -- you know, the corporation settled it out -- you know, I was no longer in control of it because of the bankruptcy -- I want to bring the claim on my own. I mean, I can understand why it would be nice for you to get that, but it doesn't seem to me that you should be able to play dog in the manger that way. You either -- you either accept the corporate form or you don't.
04-593 +++$+++ 26622 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The corporate form gives certain protections, largely from personal responsibility for corporate debt has some tax advantages. It certainly is not going to protect any corporate officer or shareholder from their own, for example, tortious behavior.
04-593 +++$+++ 26623 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you'd have to concede at a minimum that now that the corporation has settled the breach of contract claim, that to the extent that the corporation could have recovered under 1981, that's gone too because those two claims were intimately related, and you would be precluded from bringing such a claim. So to the extent that there's an overlap, you face a res judicata bar.
04-593 +++$+++ 26624 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, even if that claim had not been precluded by bankruptcy -- and there were two plaintiffs in this case, JWM and McDonald -- there certainly couldn't be double recovery. Anything that would be recoverable in any form by JWM clearly cannot be recovered by John McDonald as an individual. And the Ninth Circuit said that. They were talking about his own separate and distinct injuries. So double recovery would never be possible.
04-593 +++$+++ 26625 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So they -- the Ninth Circuit's view is there are two potential plaintiffs in this situation. Both can sue and one gets -- the damages are not identical. That's --
04-593 +++$+++ 26626 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry.
04-593 +++$+++ 26627 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The shareholder can sue. The sole shareholder can sue. The corporation can sue. Both have 1981 claims. It's not either/or.
04-593 +++$+++ 26628 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-593 +++$+++ 26629 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They both have 1981 claims, but the damages are different in the case of the individual than in the case of the corporation.
04-593 +++$+++ 26630 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely.
04-593 +++$+++ 26631 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask just -- did the individual plaintiff assert the 1981 claim at any time before the settlement of the corporate claim?
04-593 +++$+++ 26632 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I believe that the -- and I would have to check on the timing of this, but I believe that the suit was filed prior to the settlement of the 1981 claim -- of the bankruptcy --
04-593 +++$+++ 26633 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I would have assumed --
04-593 +++$+++ 26634 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. Of the bankruptcy claim.
04-593 +++$+++ 26635 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- there wouldn't have been a settlement first without taking care of the second, if they had known both were on the table. But you say the first had been -- both of them had been --
04-593 +++$+++ 26636 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is my understanding. I -- I would have to really check on that, but that is my understanding. And again, we are looking at this particular situation. We keep talking about actual target. The petitioner keeps talking about derivative, incidental claims. This isn't a derivative, incidental claim. There is no one who has a race in this case that is relevant other than John McDonald. JWM, John W. McDonald, didn't get its financing, didn't get its credit based on the fact that it was just created as a corporation. It was John McDonald. Here, you have a situation where -- and it's kind of a unique one -- where there's a claim that John McDonald, the actual person who was being discriminated against, can't recover but some other entity can. That sort of turns section 1981 on its head.
04-593 +++$+++ 26637 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it was his -- it was his corporation, and until he went bankrupt, any recovery by that corporation would have been a recovery by -- by John McDonald. What -- what created your problem is the fact that -- that the corporation went bankrupt.
04-593 +++$+++ 26638 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I don't think that's the --
04-593 +++$+++ 26639 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, you know, that's -- that's one of the -- one of the consequences of taking advantage of the corporate form.
04-593 +++$+++ 26640 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I don't think that's the case because if there was, for example, this two-party suit, JWM could not recover for dignitary damages. Only an individual can do that.
04-593 +++$+++ 26641 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, can you -- can you do that under a general contract theory?
04-593 +++$+++ 26642 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe you can do it under a general contract --
04-593 +++$+++ 26643 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you're reporting not merely the -- the tort of tortious interference, but some general, broader concept of tort law as being subsumed with -- under 1981. Aren't you?
04-593 +++$+++ 26644 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, and I think the -- the case law indicates that, that this is not simply just federalization of State law. This -- looking at the history of section 1981, this was designed to combat not tortious interference claims in common law, but the black codes during Reconstruction that prohibited black individuals, individuals just like John McDonald, from being able to pursue their trades, operate --
04-593 +++$+++ 26645 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right, but the -- the focus of it is, as -- as I understand it, and the -- the kernel of it is -- is the capacity to contract. And we can certainly understand, I guess, how tortious interference with contracts might come under that umbrella, but you're going further and you're saying, I take it, any tort that would give a recovery -- recognize a recovery for -- for dignitary injury would be subsumed with -- within the concept of what 1981 was intended to -- to cover, which is a broader proposition.
04-593 +++$+++ 26646 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that what we are saying I think is what the Court has said -- is that this is a personal injury, and that dignitary claims are subsumed under 1981. I don't think it's expand -- I don't think --
04-593 +++$+++ 26647 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, contract -- I -- you -- you pointed out the -- the terminology which includes contract damages or -- or contract harm as personal harm, but it doesn't necessarily follow from that that every harm or every injury that is personal falls under -- conceptually under the 1981 umbrella.
04-593 +++$+++ 26648 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Discrimination is a personal injury. This Court said that in Burke and I believe in Goodman also. So we're talking about personal injury here, not just contract harm.
04-593 +++$+++ 26649 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it doesn't -- it doesn't talk about personal injury that -- that broadly. It talks about the right to make and enforce contracts. That's the portion of it you have to be relying upon. It doesn't talk about --
04-593 +++$+++ 26650 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's --
04-593 +++$+++ 26651 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- personal injury. It's not a --
04-593 +++$+++ 26652 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- it's --
04-593 +++$+++ 26653 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- it's not a more generalized tort. If want to call it a tort, it is a tort that goes to your ability to make and enforce contracts. I don't see anything --
04-593 +++$+++ 26654 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe, Your Honor --
04-593 +++$+++ 26655 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- dignitary about that.
04-593 +++$+++ 26656 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that it goes to your right to not suffer discrimination within the realm of making, performing, and enforcing contracts. The focus is on discrimination, which is a personal injury and a personal harm, and the --
04-593 +++$+++ 26657 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you're saying it means discrimination that relates to the making and enforcing of a contract with somebody else. And you're saying that since the discrimination was targeted at you, even though the contract was with -- was with somebody else, you have a claim under this language of 1981.
04-593 +++$+++ 26658 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, in this circumstance where the contract with someone else was the mechanism that was used to target an individual. And, again, when you're dealing with --
04-593 +++$+++ 26659 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but there's no way to confine it to the individual, is it? I mean, the -- on your -- on your target theory, a -- a general discriminatory animus as a basis for breaching a contract with General Motors would give a right of action to -- to every minority employee of General Motors. Isn't that correct?
04-593 +++$+++ 26660 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If there is a circumstance, as I understand the hypothetical, where there is blatant and intentional discrimination, racial discrimination, by a multinational corporation like General Motors, who say we're not going to do business with any company that hires black people -- and clearly there's an uphill battle for any kind of proof, but you'd have to show that there was actual targeting, that it really did interfere with the ability to perform contracts, and that there were specified individual damages. But if that were the case and could be proven, that would be pretty egregious and probably something that 1981 should cover.
04-593 +++$+++ 26661 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but when you say damages that can be proven, the only damages you -- you insist upon proving is the fact that you were a target and that it -- it insulted you. It -- it was -- you know. That's the only damage you require. So you're saying that every -- every minority employee of all of the companies with whom GM, or whoever it is didn't do business, would automatically have a cause of action.
04-593 +++$+++ 26662 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, I don't believe we're saying that because --
04-593 +++$+++ 26663 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. Okay. Well, then -- then what do they have to show? They have to show that -- that their salaries were -- were reduced? But -- but you haven't shown that here. You didn't plead that here. They have to show -- show that a contract with them was breached? But you didn't plead that here and you didn't show it here. So the -- the only thing that -- that you -- you can answer is they would all have causes of action if their -- their honorific values were somehow impugned.
04-593 +++$+++ 26664 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe so, and I think that what was pled and what we believe is not just the wages that were not paid, but also the dignitary damages and also the damages specifically aimed at John McDonald in terms of ruining his credit, going to the banks, and in a sense slandering him, and those kinds of damages that were not recoverable by JWM but were specifically John McDonald.
04-593 +++$+++ 26665 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That was -- that was the consequence of the bankruptcy of his corporation. I mean, that didn't -- didn't --
04-593 +++$+++ 26666 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, sir. There were actually allegations of statements we are going to ruin you personally and actions that went to ruin him personally. This was not just simply derivative from the corporation.
04-593 +++$+++ 26667 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But none of the ruin occurred, as I understand it, until the corporation went bankrupt. In other words, there was no direct -- the bank, for example, didn't say we're not doing any more business with -- with you, McDonald. As I understand it, all the -- all the -- leaving dignitary harm aside, all the actual loss was -- was as a consequence of the loss to the corporation. His stock fell, you know, whatever. But it -- it seems all derivative from the corporate loss.
04-593 +++$+++ 26668 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe so, sir. And the opposition to the motion to dismiss talked very specifically about the statements to the banks that were specific to John McDonald that hurt John McDonald individually that really was not derivative from the bankruptcy --
04-593 +++$+++ 26669 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you have an action --
04-593 +++$+++ 26670 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, can you give me an example?
04-593 +++$+++ 26671 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- on that in California? Wouldn't you have an action in the State if somebody goes and deliberately interferes with your credit and so forth?
04-593 +++$+++ 26672 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the action that Mr. McDonald took was just this, the 1981 action, saying that there was a Federal violation, that this was done to discriminate against him, and this seems to fit in with the 1981 cause of action and the purpose of 1981, which is why this case was filed.
04-593 +++$+++ 26673 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If it fits, it's because of some cases. So -- because this whole area, 1981, didn't take off until Runyon against McCrary. So we're starting with what? 1976. So to -- to flesh out what that claim is, you must be relying on some decisions of this Court when you talk about dignitary damages.
04-593 +++$+++ 26674 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again, we -- I think we could look at Shaare Tefila as -- as a good example of the kinds of damages. This was the Nazi swastika on a synagogue.
04-593 +++$+++ 26675 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I thought that didn't go into anything. That was a two-page per curiam, and it was just was there a claim. And it didn't --
04-593 +++$+++ 26676 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the claim was still -- it was certainly not because of any kind of -- of privity. It was damages based on --
04-593 +++$+++ 26677 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought that that was about does the -- does the act cover religion or -- or does it cover that situation, or is it limited to race, or does anti-semitism count as race. I thought that's what was all that was decided.
04-593 +++$+++ 26678 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, at that time, that -- it said that anti-semitism counted as race, but certainly they were able to recover once that threshold was met because of the dignitary harms.
04-593 +++$+++ 26679 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I don't see anything in the opinion about -- I just see the issue before the Court was does this come under the heading race.
04-593 +++$+++ 26680 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My reading of that was -- was a bit broader I think. Also, you could look at cases such as Sullivan where the right not to be discriminated against was compensable for the black family that was not allowed into the club. So the cases that we have cited --
04-593 +++$+++ 26681 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Both Sullivan and Shaare Tefila, of course, though, were 1982 cases. Right?
04-593 +++$+++ 26682 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-593 +++$+++ 26683 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Not 1981 cases.
04-593 +++$+++ 26684 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. But this Court has said that the language is so similar that they should, for these purposes, be viewed as having the same rules. And clearly, it would make no sense to have -- have different ones. So they were 1982 claims, but the idea that discrimination in terms of housing should have dignitary claims while discrimination in terms of contract should not is something this Court has never said.
04-593 +++$+++ 26685 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel.
04-593 +++$+++ 26686 +++$+++ TRUE +++$+++ MR. LICHTENSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
04-593 +++$+++ 26687 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Mahoney, you have 4 minutes remaining.
04-593 +++$+++ 26689 +++$+++ FALSE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. I'd like to focus on the issue of whether there is any need for a remand. The district court dismissed the complaint with prejudice, and I think that it's fair to say that at that point, the plaintiff was under an obligation to seek leave to amend if it had any other alternative theory that it wanted to advance in this case. Otherwise, we're left with the situation where they can see that dismissal with prejudice, litigate up to the Ninth Circuit, and then we litigate here. We go back down and we keep doing this seriatim. It would make no sense. The dismissal with prejudice was proper, and certainly in a 1981 case, despite liberal rules of pleading, you have to identify the contract that was supposedly violated, as well as, you know, the other elements. Second, I think that if this were a harder case about tortious interference principles, even if it hadn't been waived, I might understand the Court's reluctance to get into it. But we know from the briefing that the plaintiff has conceded that his claim would not be cognizable under the common law of contract, third party beneficiary, or tortious interference, and that is very plain from the brief at pages, I think, 43 through 46 where they acknowledge that under section 76 of the Restatement, they would not be able to -- to recover. And they say, so what. This isn't a federalized version of common law of interference. So given that concession, I think all this Court would have to say is that the alternative theory that wasn't even pled can't possibly state a claim because it -- it asks us to go far beyond what the common law did.
04-593 +++$+++ 26690 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Mahoney, may -- may I ask you one brief question that I should have asked on direct? I hope you have time for it. But supposing a fact situation in which a wholly owned -- a -- a corporation wholly owned by an African American starts to negotiate with your client, and your client says, we have a policy of not dealing with companies owned by African Americans. Would the corporation or the individual have a lawsuit under section 1981?
04-593 +++$+++ 26691 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the corporation would, Your Honor.
04-593 +++$+++ 26692 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You think the corporation would.
04-593 +++$+++ 26693 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely because they -- a refusal to deal -- it covers rights to make and enforce contracts, and if -- if the defendant said, I will not deal with this company, then I think that they have a right. And in this case, there was a claim that was brought by the company for -- based on -- for breach of contract.
04-593 +++$+++ 26694 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But not under 1981.
04-593 +++$+++ 26695 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, but the trustee makes a finding that the -- the causation -- or reports to the court that causation principles could not be established, and so there was no point in bringing a 1981 claim because he actually found in -- in materials that are in the record of the bankruptcy proceeding --
04-593 +++$+++ 26696 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- but in your view, to the extent that racial discrimination might have affected negotiations, that would be an element of the corporation's claim under 1981 rather than an individual claim.
04-593 +++$+++ 26697 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-593 +++$+++ 26698 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-593 +++$+++ 26699 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because if the -- if they were negotiating on behalf of the company, that is the company's right to contract. It is not the individual's right.
04-593 +++$+++ 26700 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you attribute the shareholder's race to the corporation?
04-593 +++$+++ 26701 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's what the courts of appeals all do. Judge Friendly in Hudson Valley Freedom Theater looked at this issue and said that it was the best way to approach this issue, that -- that -- and explained that it doesn't make sense to impute the corporation's contract rights to somebody else, give them power to enforce their contract rights. And it wasn't a 1981 case, but it was analogous, and that it made sense to, under those circumstances, impute race, in effect. And I think that the way that courts have done it is also a link to the word discrimination, which appears in 1981(c). In -- in Jackson v. Birmingham for the -- for instance, this Court did find that a -- a male coach had been subjected to discrimination on the basis of sex, even though he's obviously not a woman, because it's a form of discrimination. And I think the courts have looked at that as well. But this -- the -- the -- all of the exact same issues that are alleged in this complaint were already raised and litigated through depositions and discovery in the bankruptcy court. And this presents all of the problems that this Court addressed in Associated General Contractors about why there's such a strong presumption against derivative claims because here you can't trace the losses. You have no idea whether or not the monies that JWM would have recovered from Domino's would have been used to pay other creditors or used to do new projects or perhaps given to -- to McDonald. Thank you, Your Honor.
04-593 +++$+++ 26702 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
04-597 +++$+++ 26706 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first today in Unitherm Food Systems versus Swift-Eckrich. Mr. Bailey.
04-597 +++$+++ 26708 +++$+++ FALSE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: In 1947, this Court stated, in Cone versus West Virginia Pulp & Paper Company, 330 U.S. at 216, quote, "Determination of whether a new trial should be granted, or a judgment entered under Rule 50(b), calls for the judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case, which no appellate printed transcript can impart." That language was repeated verbatim the following year in Globe Liquor versus San Roman. And, in the year after that, both Cone and Globe Liquor were cited for the same proposition in Fountain versus Filson. And, in 1952, in Johnson versus New York Railway, this Court again reiterated the requirement -- is the word the Court used -- of submitting a post-verdict motion, or JNOV, to preserve sufficiency of the evidence for appellate review.
04-597 +++$+++ 26709 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, was there a Rule 59 motion made here after the verdict?
04-597 +++$+++ 26710 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. There was a motion for a remittitur --
04-597 +++$+++ 26711 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
04-597 +++$+++ 26712 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of damages.
04-597 +++$+++ 26713 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Had a Rule 59 motion been made, would it preserve a sufficiency-of-the-evidence argument in connection with the motion for new trial?
04-597 +++$+++ 26714 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not a sufficiency-of-the-evidence argument, Your Honor. And that -- this Court spoke to that in footnote 9 of the Weisgram opinion. But a Rule 59 motion contesting the weight of the evidence would have been appropriate. No such motion was filed. Eight of the Circuit Courts of Appeals have held that in the absence of a post-verdict Rule 50(b) motion, the appellate court cannot review for sufficiency of the evidence. And that language is in black letter law in the standard treatises on Federal practice, in Moore's and in Wright & Miller, that it is absolutely required. Here --
04-597 +++$+++ 26715 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do any of those circuits allow an exception for plain error?
04-597 +++$+++ 26716 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Several of them do --
04-597 +++$+++ 26717 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-597 +++$+++ 26718 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Your Honor. Some do not, but most, I think it would be accurate to say, do. And, Your Honor, we feel that those cases are mistakenly decided, because the court's ruling on a 50(a) motion -- that is, a pre-verdict motion -- is always interlocutory. I mean, indeed, the trial court is encouraged to deny that motion, pending the jury verdict, because if the jury comes back, obviously, with a defendant's verdict, that's the end of the case. And if the Court, on the other hand, grants it, and the appellate court concludes that there was a jury question, then it has to go back for a whole new trial. So --
04-597 +++$+++ 26719 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Just while I have you, I'm -- just while I have you here -- it's not --
04-597 +++$+++ 26720 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-597 +++$+++ 26721 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- probably, directly relevant to this case. On that one point, when I was in practice, it used to irritate me sometimes that the judge should grant the motion and then he'd just sit on it. But I see the wisdom for the rule now, and the judge reserving it, in the event the jury comes out the right -- the, quote, "right way," anyway. What if there's a very long trial? What if, after the plaintiff rests, there's a good grounds for granting the motion for judgment as a matter of law, the judge doesn't do it, and then there's a 3-month trial? Do the judges ever take that into account?
04-597 +++$+++ 26722 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your --
04-597 +++$+++ 26723 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Three more months for the defense to --
04-597 +++$+++ 26724 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Your Honor, I think my answer to that is, not infrequently holes in the plaintiff's case are filled when the defendant's case is put on. That happens, as I say, rather frequently, through cross-examination and -- and it's just extremely iffy to say that won't occur. And, in any event, Your Honor, it raises the specter of this problem that we've just talked about, that that long trial that you -- that you envisioned in your hypothetical would have to -- if the appellate court finds that there is a jury question there --
04-597 +++$+++ 26725 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-597 +++$+++ 26726 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- has to try it all over again. Not a -- not a very good consequence.
04-597 +++$+++ 26727 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ On the issue that's before us now, I can understand why, if the, what we used to call, JNOV is not requested after the jury verdict, the appellate court could not then enter judgment -- direct the entry of judgment as a matter of law. But I don't see why it couldn't say, just as we would be reluctant to affirm a decision when there was no claim for relief, so, if there's insufficient evidence, we can remand for a new trial. But you would say that that is not possible either.
04-597 +++$+++ 26728 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would, Your Honor. That's not authorized. There's no way to ask for a new trial in a 50(a) motion. I mean, it doesn't provide for that. The trial is still going on. By definition, you can't seek a new trial until the trial is --
04-597 +++$+++ 26729 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But --
04-597 +++$+++ 26730 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- concluded.
04-597 +++$+++ 26731 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you haven't asked for it, but the appellate court said, "We don't want to affirm a judgment when there was insufficient evidence, so we are going to" -- there was -- the judge was tipped off by the -- by the directed-verdict motion, that the -- who turned out to be -- the one who turned out to be the verdict loser thinks the evidence is insufficient. That's enough at least to say that the Court of Appeals could grant a new trial.
04-597 +++$+++ 26732 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it's our position that you can never ask for -- move for a new trial for -- on the ground that the evidence is against -- the weight --
04-597 +++$+++ 26733 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, I'm not --
04-597 +++$+++ 26734 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of the evidence --
04-597 +++$+++ 26735 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- talking about "against the weight," because a trial judge would rarely be -- if it -- if a trial judge said, "It's against the weight of the evidence," it would go back for a new trial, and you couldn't raise that issue, at least not til you go through the whole second trial. But why isn't it like -- I think there are decisions that say there was a judgment, but the Court of Appeals determines there was never a claim for relief to begin with, even though a motion wasn't made to that effect. The idea of a court affirming a judgment that is without sufficient legal basis is troubling.
04-597 +++$+++ 26736 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I -- my response to that is that these matters, pursuant to this Court's jurisprudence in Cone and Johnson and other cases, simply mandates that the trial court be asked to pass in the first instance on this issue of sufficiency of the evidence.
04-597 +++$+++ 26737 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, it -- but it was asked by the -- by the pre-verdict motion. What -- the only thing that wasn't done is, it -- the request wasn't repeated after the verdict. I can see your point if there had never been a motion for directed verdict at the close of all of the evidence. But there was that. And so, all that we're missing is a repetition of the same words after the jury comes in.
04-597 +++$+++ 26738 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, the -- if I may, the standard of review is radically different. I mean, if motion for a JNOV is asked for and granted/denied, the review is de novo. The issue about a new trial, under 59, is an abuse of discretion.
04-597 +++$+++ 26739 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's -- the new trial comes in, by the courts that have said this, only -- they'd say, "We would direct the entry of judgment for the verdict loser, but we're powerless to do that." And that is all wrapped up in the Seventh Amendment. So, the next best thing is, we grant a new trial.
04-597 +++$+++ 26740 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's certainly what the Tenth Circuit jurisprudence provides, Your Honor. And the Federal Circuit adopted that.
04-597 +++$+++ 26741 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-597 +++$+++ 26742 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And we think that that's totally at odds with this Court's rule in Cone and Johnson, that it is out of step with the law in eight Federal Circuits, that it simply is illogical to say, someone who never asked for a new trial -- Your Honor, if they had -- if ConAgra had sought a new trial on sufficiency of the evidence in Federal Circuit, presumably, the Federal Circuit said, "You didn't ask for that below. It's gone. It's waived. What's your next argument?" By not asking, they say, in effect, "Since you didn't ask for it, that's what we're going to give you." And that simply is, Your Honor --
04-597 +++$+++ 26743 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, couldn't one regard a new trial as, sort of, subsumed under the request for judgment as a matter of law? That is, that's the larger thing, but at least a new trial. Don't let -- the judgment as a matter of law says, "Don't let this verdict stand." So, one could say, "We won't give you a judgment, but we will order a new trial."
04-597 +++$+++ 26744 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And, Your Honor, I -- my response is simply that those are two very different motions and call for two very different standards of review, and it cannot, I respectfully submit, logically be administered, when there's been no request for a new trial. There's no authority to request a new trial in a 50(a) motion. It leads to the kind of confusion that, I submit --
04-597 +++$+++ 26745 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would you refresh my recollection? In the cases you cited at the outset of your argument, where the judgments were reversed, am I wrong in thinking, in those cases, there was, in fact, a new trial afterwards?
04-597 +++$+++ 26746 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There -- Your Honor, they had moved for a new trial in those cases. That is, the defendant moved for a new trial. And that -- and this Court --
04-597 +++$+++ 26747 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the judgment of this Court was simply reverse, wasn't it?
04-597 +++$+++ 26748 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was reverse.
04-597 +++$+++ 26749 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There were --
04-597 +++$+++ 26750 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of the appellate court --
04-597 +++$+++ 26751 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-597 +++$+++ 26752 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of the Eighth Circuit. Yes, Your Honor, that's right. It was -- this Court simply reversed, in Cone and Johnson. Those cases went back for retrial. Yes.
04-597 +++$+++ 26753 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't understand your response to me about vastly different standards of review. I would think it would be harder for a verdict loser to get judgment as a matter of law than to get a new trial.
04-597 +++$+++ 26754 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At the trial or the appellate level, either one --
04-597 +++$+++ 26755 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-597 +++$+++ 26756 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Your Honor? Yes. Well, one would -- I quite agree.
04-597 +++$+++ 26757 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's why --
04-597 +++$+++ 26758 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
04-597 +++$+++ 26759 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I'm suggesting --
04-597 +++$+++ 26760 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but the --
04-597 +++$+++ 26761 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that one is kind of a lesser included.
04-597 +++$+++ 26762 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. And the response I have to make is that the reviewing court would determine the issue of new trial on an abuse-of-discretion standard, not on a de novo review of sufficiency of the evidence.
04-597 +++$+++ 26763 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They go to different things, don't they? I mean, if you -- you get a new trial when there are -- you know, evidence is admitted that shouldn't have been admitted, or something like that. I mean, they're -- they're, sort of, different grounds. They're not overlapping, are they?
04-597 +++$+++ 26764 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They -- very different grounds most -- most commonly, Your Honor. That is, you can -- there can be completely sufficient evidence to support the jury winner's verdict --
04-597 +++$+++ 26765 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well --
04-597 +++$+++ 26766 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but the Court can still --
04-597 +++$+++ 26767 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- this is a --
04-597 +++$+++ 26768 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- grant a new trial.
04-597 +++$+++ 26769 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right. I meant -- I'm not sure. I mean, is it a -- is insufficient evidence a typical ground for asking for a new trial?
04-597 +++$+++ 26770 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, not insufficient evidence, but the --
04-597 +++$+++ 26771 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No.
04-597 +++$+++ 26772 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the verdict is against the weight of the evidence. That is the distinction that this Court pointed out in footnote 9 of Weisgram, that if you're talking about the weight of the evidence -- the verdict is against the weight of the evidence; very subjective proposition, but that it is -- then you proceed under Rule 59.
04-597 +++$+++ 26773 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And that determination of what was the weight of the evidence is typically left to the trial judge, rather than to the Court of Appeals. It would be --
04-597 +++$+++ 26774 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you can --
04-597 +++$+++ 26775 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- somewhat novel for the Court of Appeals to be reviewing a trial judge on the basis of what it thought the weight of the evidence was. It's one thing to say, "If he's denied or granted a motion for a new trial on that basis, we'll look for abuse of discretion," but for the appellate court to do that de novo and assess the weight of the evidence, it seems, to me, quite unusual.
04-597 +++$+++ 26776 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's --
04-597 +++$+++ 26777 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-597 +++$+++ 26778 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't think any appellate court has claimed that authority. We're talking about a new trial in lieu of J- -- a judgment as a matter of law. And the -- one of the whole rationales in Cone and Globe and all of the others were saying you should make the post-verdict motion -- is that then the trial judge would have the option. The trial judge might think, "Well, technically, you deserve JMOL, but maybe there was a witness who was out to sea, so I want to exercise my discretion to grant a new trial." Those two are closely linked. I mean, lawyers usually, as a -- just a matter of -- just automatically ask for JNOV or, in the alternative, a new trial.
04-597 +++$+++ 26779 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think it shows respect to the trial judge to require that the trial judge be required, in the first instance, to review this evidence that the trial judge saw, heard, and has the same opportunity, as this Court has observed in cases going back over a century, to see, just like the jurors saw, and provides a perspective on it that is available to the trial judge, alone.
04-597 +++$+++ 26780 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well --
04-597 +++$+++ 26781 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honors, if --
04-597 +++$+++ 26782 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- it seems --
04-597 +++$+++ 26783 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I may, I'd --
04-597 +++$+++ 26784 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- it seems to me that if the Court of Appeals is going to grant a new trial, it must say one of two things. It must say either, number one, "There was not sufficient evidence to go to the jury, but the conclusion of that determination ought to be -- and, therefore, you know, the case is over"; but to say that and then say, "And, therefore, we give a new trial," it seems very strange. Or else, the Court of Appeals has to say, you know, "The weight of the evidence was not in the plaintiff's favor." And if it says that, it's making the kind of a determination that I find unusual for a Court of Appeals.
04-597 +++$+++ 26785 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. But circumventing the application to the trial judge --
04-597 +++$+++ 26786 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But --
04-597 +++$+++ 26787 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in the first instance --
04-597 +++$+++ 26788 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in fact, that's not what the Courts of Appeals have said. They have all said, "We would grant judgment as a matter of law, but we're powerless to do that under this case -- Court's case law. We think the evidence is insufficient, not that it's against the weight of the evidence. We think it's insufficient. If we had the power to do it, we would direct the entry of judgment. We can't do that, so we do the next best thing." But in all of the -- including the Tenth Circuit, whose law is relevant here -- the Court of Appeals is saying, "We think the judgment -- there was insufficient evidence to support that judgment. And if we had the power, we would instruct the entry of judgment. We don't have that power."
04-597 +++$+++ 26789 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly what they said, Your Honor. And we say they had no authority to do that. In the absence of taking it in the first instance before the trial court. May I reserve --
04-597 +++$+++ 26790 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I suppose they could make the same -- if -- I mean, if that follows, they should be able to do the same thing when there has been no motion made, neither before nor after, right? They could say, "Well, there's no motion made. We really have no authority to reverse this judgment."
04-597 +++$+++ 26791 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's --
04-597 +++$+++ 26792 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ "But" --
04-597 +++$+++ 26793 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's certainly --
04-597 +++$+++ 26794 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you know, "we certainly think there was not enough evidence, and, therefore, we grant a new trial." Does any court do that?
04-597 +++$+++ 26795 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I may have missed, Your Honor --
04-597 +++$+++ 26796 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where no motion has been made --
04-597 +++$+++ 26797 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-597 +++$+++ 26798 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- neither before the verdict nor after the verdict, does any appellate court say, "Since no motion was made, we have -- we have no power to reverse the judgment here, but our examination of the case indicates that there was really not sufficient evidence to go to the jury. And, therefore, we will do the lesser thing and grant a new trial"? Does any court of -- appellate court do that?
04-597 +++$+++ 26799 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I know of no case where an appellate court would do such a thing when there's no motion of any kind that's ever been made contesting the --
04-597 +++$+++ 26800 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but the trial court could do that, pursuant to Rule 59(d), couldn't it?
04-597 +++$+++ 26801 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry.
04-597 +++$+++ 26802 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I say, the trial court could have done that pursuant to Rule 59(d) without a motion being filed.
04-597 +++$+++ 26803 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I quite agree, Your Honor. Yes.
04-597 +++$+++ 26804 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you --
04-597 +++$+++ 26805 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ May I reserve the rest of my time?
04-597 +++$+++ 26806 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Bailey. Mr. Stewart.
04-597 +++$+++ 26808 +++$+++ FALSE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: It's a well established principle of Federal appellate practice that the litigant must adequately preserve a claim in the trial court in order to raise it on appeal. The disputed issue in this case is whether a claim of insufficient evidence is adequately preserved for appeal through the filing of a pre-verdict Rule 50(a) motion or whether a renewed post-verdict motion under Rule 50(b) must be filed, as well. The text of Rule 50, the practical considerations that underlie contemporaneous objection rules, and this Court's decisions construing Rule 50 all indicate that a post-verdict motion is necessary for adequate preservation of the claim.
04-597 +++$+++ 26809 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think it may be --
04-597 +++$+++ 26810 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is the usual practice with regard to the pre-verdict motions? Are -- is the initial one made at the close of the plaintiff's case --
04-597 +++$+++ 26811 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It often is. It can be made --
04-597 +++$+++ 26812 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- and then renewed at the -- at the end of all of the evidence?
04-597 +++$+++ 26813 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's a very typical practice.
04-597 +++$+++ 26814 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-597 +++$+++ 26815 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It doesn't -- it doesn't have to be made at the close of the plaintiff case, but it can be made at any time after the opposing party has had an adequate opportunity to be heard. And so --
04-597 +++$+++ 26816 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But they're really different things to be reviewed at those two times. I mean, at the end of all the evidence, there may be some matter that the defendant inadvertently puts in that makes up the deficiency in the plaintiff's case. So, it's really a different motion, isn't it?
04-597 +++$+++ 26817 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is requesting the same sort of --
04-597 +++$+++ 26818 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of relief.
04-597 +++$+++ 26819 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- relief, but it -- different considerations would affect the trial judge's decision whether to grant the motion. And I think -- in a sense, this goes to Justice Kennedy's question -- that is, one of the reasons that, at least with respect to the motion that's filed at the conclusion of all the evidence, that these motions are almost uniformly not granted, the case is almost always submitted to the jury, because the thought is, very little is lost by submitting the case to the jury, because the suit has been tried already, and there may be substantial gains in efficiency from pursuing that course. I think if a motion was made at the conclusion of the plaintiff's case, and the judge thought it clearly had merit and thought that a substantial savings in cost and time would ensue from granting the motion, the trial judge could take that into account in deciding whether the motion should be granted or not. But I think -- I think it's important to look at the text of Rule 50. And it's reprinted, among other places, at page 57(a) of the appendix to the certiorari petition. And in -- at the beginning of Rule 50(a)(1), it says, "If, during a trial by jury, a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the Court may determine the issue against that party." Again, the word "may" is permissive. So, while the judge may take into account potential savings in time and expense, the judge is never required to grant a Rule 50(a) motion, even if the judge is firmly persuaded that the evidence on the other side is insufficient. And then, at the very bottom of the page, the first sentence of Rule 50(b) says, "If, for any reason, the Court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the Court is considered to have submitted the action to the jury, subject to the Court's later deciding the legal questions raised by the motion." And the significance of that sentence is that it says, "No matter what stated rationale the District Court gives" -- whether the District Court simply says, "I'm reserving the motion," or says, "I'm denying it, because the evidence is, in my view, clearly sufficient" -- "whatever stated rationale the Court gives, the action will be treated as a reservation of the legal questions." And I think one of the reasons that it would be inappropriate to allow appeal of a sufficiency claim without a renewed post-verdict motion is that in order to attain reversal on appeal, regardless of whether the remedy is entry of judgment or a new trial, the Court of Appeals has to be able to point to an erroneous ruling by the District Court. And the reservation of a ruling on the 50(a) motion, by its nature, can't be erroneous. That is, the judge is specifically authorized to submit the case to the jury --
04-597 +++$+++ 26820 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, Mr. Stewart, just let me clear up one thing of confusion. Is it not true that if the District judge denies the motion before submitting the case to the jury, within 10 days after the jury verdict, if no further motion is made, he would still -- the judge would still have authority to change his mind and grant the motion?
04-597 +++$+++ 26821 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't believe that that's the case. That is, at this point, the rule has been amended so that the time for filing a post-verdict motion is 10 days after entry of judgment, rather than 10 days after verdict, as it used to be. But this Court said, in Johnson, that, in the absence of a renewed verdict post -- a renewed motion post-verdict, neither the District Court nor the Court of Appeals may order entry of judgment in the favor of the verdict loser. And I think that the text of Rule 50(b) bears that out. If you look farther down that paragraph, on page 58(a), the rule says, "Submission of the case to the jury is to be treated -- or considered to be a reservation of the legal question." And then it said, "The movant may renew the request." And then that sentence says, "In ruling on a renewed motion, the Court may, if a verdict was returned, allow the judgment to stand or grant a new trial or order entry of judgment." And I think that phrase, "in ruling on a new -- renewed motion," is significant, because the only express authority that the District Court has, post-verdict, to grant judgment as a matter of law is that the court may do so in ruling on a renewed motion. The rule doesn't contemplate a situation --
04-597 +++$+++ 26822 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, you're saying that if the judge wants to do what I -- what I hypothesized, the judge should say to the losing party, "Renew your motion, and I'll grant it."
04-597 +++$+++ 26823 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. And the judge could do that, either pre- or post-verdict. That is, pre-verdict, the judge could say, "I think your motion may very well have merit, but, in the interest of overall efficiency, I'm going to submit the case to the jury. But, in the event that the jury comes back against you, I would encourage you to renew that motion." There's nothing wrong with the judge encouraging the litigant to file something like that, or signaling that the judge has doubts about the sufficiency of the evidence. But the rule makes the renewed post-verdict motion a prerequisite to entry of judgment as a matter of law, post-verdict. And it --
04-597 +++$+++ 26824 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can you tell me, if we adopt your position, what should a trial court do if he, alternatively, would grant a new trial? Should he go ahead and make that determination? He grants judgment NOV. And then he really is thinking, "Well, I would have granted a new trial." Should he go ahead and cover himself against reversal by granting the new trial in the alternative, or --
04-597 +++$+++ 26825 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He should. And, indeed, this Court, in -- as early as Montgomery Ward, have said that was the better practice, and that requirement has since been codified in what is now Rule 50(c), which says that if the Court grants the motion for judgment as -- the renewed motion for judgment as a matter of law, and there is also an alternative motion for a new trial, the judge should rule on that, as well, and should basically say, "In the event that my ruling on the JNOV -- or the JMOL" --
04-597 +++$+++ 26826 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ "Shall." It does say "shall.
04-597 +++$+++ 26827 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, "shall."
04-597 +++$+++ 26828 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It says "shall." Thank you.
04-597 +++$+++ 26829 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So, "In the event that my ruling on the sufficiency question is reversed on appeal, the Court of Appeals will know how I would have ruled on the new-trial motion, and the processing of the case can be expedited."
04-597 +++$+++ 26830 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's a -- it's a conditional ruling on the new-trial motion.
04-597 +++$+++ 26831 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-597 +++$+++ 26832 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because if it were a ruling on the new-trial motion, you would never get up to the Court of Appeals.
04-597 +++$+++ 26833 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. But the Court -- this Court, in Montgomery Ward, noted that there may be inefficiencies if the District Court rules on the JNOV motion, but doesn't rule on the conditional motion for new trial, because if the JNOV -- if the ruling on the JNOV motion is reversed on appeal, then there's a need for remand for further proceedings, and it's inefficient. But to return to the point about taking an appeal from a Rule 50(a) motion, I think it would put a District Court in an untenable position to say, "You can reserve ruling on the 50(a) motion, even if you think the evidence is insufficient," and, indeed, it's usually the better practice to do so, but, if you do that, and the jury comes back against the movant, the movant can take an immediate appeal, and you can be reversed on the ground that your ruling on the Rule 50(a) motion was erroneous. There's simply no -- by its -- by the terms of the rule itself, the submission of the case to the jury, in the face of a Rule 50(a) motion, is considered to be a reservation of the sufficiency question.
04-597 +++$+++ 26834 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, well, I don't know that you have to read it that way. I mean, you can say that the -- when the -- when the rule says that it -- that it is deemed to have been reserved, it also implies that the question that was reserved is implicitly resolved when the court does not -- does, later, not act. It's an implicit denial. Why can't you read the rule that way?
04-597 +++$+++ 26835 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I mean, conceivably you could have read the rule that way at the time of Johnson, but first we have this Court's decision in Johnson, which says the submission of a post-verdict Rule 50(b) motion is an essential prerequisite even for the District Court to act on the motion. And, therefore, if the motion is not renewed, the District Court is entitled to treat it as abandoned. And, second, the rule, in its current form, limits the authority of the District Court to enter a judgment as a matter of law post-verdict to the situation where the court is ruling on a renewed motion. The rule doesn't contemplate a situation in which the motion is not renewed and yet the District Court purports to rule on the 50(a) motion that was left hanging by the submission of the case to the jury.
04-597 +++$+++ 26836 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about the plain-error question?
04-597 +++$+++ 26837 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think we would say, for some of the same reasons that Mr. Bailey has identified, that plain-error review would be inappropriate, because in order to have plain error, there has to be error. And if the gravamen of the appeal is that denial of the pre-verdict Rule 50(a) motion was plain error, it can't be right, because the pre-verdict -- the submission of the case to the jury is treated, as a matter of law, as a reservation of the legal questions, and it can't be plain error to reserve those questions for later decisions.
04-597 +++$+++ 26838 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm not sure --
04-597 +++$+++ 26839 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you Mr. Stewart.
04-597 +++$+++ 26840 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I understood. Sorry. Just -- I'm not sure I understood. Did you say that even when it's reserved, the judge cannot go back to the reserved motion and grant it unless the motion is renewed?
04-597 +++$+++ 26841 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. That was -- that was the fact in Johnson, that the District Court expressly reserved its ruling, and the court, nevertheless, held renewal as essential.
04-597 +++$+++ 26842 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Stewart. Mr. Schroeder.
04-597 +++$+++ 26844 +++$+++ FALSE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Before getting to some of these questions that have been discussed this morning, I think it's helpful to ground ourselves a little bit in the fundamental decision made by the Federal Circuit that is not within this Court's grant of certiorari, and, therefore, is the foundation from which we proceed. And, rather succinctly, the Federal Circuit said, "Unitherm never presented any evidence that could possibly support critical factual elements of its claim. In particular, Unitherm failed to present any facts that could allow a reasonable jury to accept either its proposed market definition or its demonstration of antitrust injury." Building on that foundation, Unitherm wants a judgment entered in its favor for $19 million for the injury that they have never proven. And, to get there, they have to accomplish each of three things. First --
04-597 +++$+++ 26845 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I just stop you with that point? Because one of the things that Unitherm said about that argument -- which, as you prefaced, is not before us -- is, the Court of Appeals was looking to a truncated record to see whether there was sufficient evidence that, in fact, the record was much larger than the piece of it that the Federal Circuit examined, so that the Federal Circuit, when it says there was no evidence, was looking to the appendix that was before us, but that was not the whole picture.
04-597 +++$+++ 26846 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, in the Federal Circuit, each party had the -- had the ability to put any part of the record, or the entire record, before the court, and, under the Federal Circuit's own rule, they were also entitled to go back to the District Court record, whether it was in the appendix or not. So, the entire record --
04-597 +++$+++ 26847 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but if they had been on --
04-597 +++$+++ 26848 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- was --
04-597 +++$+++ 26849 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- if they had been on notice that insufficiency of the evidence was going to be an issue, they might have put more in the record about the sufficiency of the evidence.
04-597 +++$+++ 26850 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ When the case was appealed to the Federal Circuit, Your Honor, insufficiency of the evidence was presented as an issue at that time. And so, that was --
04-597 +++$+++ 26851 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But under this Federal Circuit's own law, it could not be, because there had not been the post-verdict motion.
04-597 +++$+++ 26852 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that --
04-597 +++$+++ 26853 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The Federal Circuit is borrowing Tenth Circuit's law for this purpose, but the Tenth Circuit's law, as I understand it, has -- is the position that was just presented to us by Mr. Stewart. That is, if you don't make what used to be called the JNOV, even if you made the directed verdict, you can't raise the sufficiency on appeal.
04-597 +++$+++ 26854 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, going to the Federal Circuit, of course, the meaning of Rule 50 was in dispute. And it was certainly, at that point, ConAgra's position that the evidence was sufficient -- was insufficient, and that was the issue before --
04-597 +++$+++ 26855 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't --
04-597 +++$+++ 26856 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the court.
04-597 +++$+++ 26857 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that the Federal Circuit's own rule? It -- it was, I thought, pretty clear what it told us in that footnote, that if we were ruling -- making the ruling -- the Federal Circuit law is, if you don't make the 50(b) motion, you cannot get a reversal on appeal for insufficient evidence.
04-597 +++$+++ 26858 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is the Federal Circuit rule in patent infringement cases. It was not the rule that the Federal Circuit would apply in this case, because the Federal Circuit would apply --
04-597 +++$+++ 26859 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Borrow --
04-597 +++$+++ 26860 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- apply the rule of --
04-597 +++$+++ 26861 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the Tenth Circuit rule.
04-597 +++$+++ 26862 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-597 +++$+++ 26863 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. But that's -- in respect to the Chief Justice's question, the -- Unitherm could have thought, "Well, the Federal Circuit is not going to deal with sufficiency; therefore, I don't have to beef up" --
04-597 +++$+++ 26864 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-597 +++$+++ 26865 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "what I put in the appendix."
04-597 +++$+++ 26866 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- certainly, they did have to deal with that, Your Honor, because one of the grounds for appeal was that there as no antitrust standing. So, this issue was before the Federal Circuit, no matter how you view the question. But I think in addition to that, certainly everyone knew, when this case went to the Federal Circuit, that it was ConAgra's position that Tenth Circuit law applied, and that the evidence should be reviewed for its sufficiency --
04-597 +++$+++ 26867 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but the -- the antitrust standing issue is not the same as the relevant market issue that was decided, is it?
04-597 +++$+++ 26868 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it's not, but it certainly is the same with respect to antitrust injury, and the Federal Circuit found there was no evidence of antitrust injury. So, there, the entire record should have been before the Federal Circuit. And, in fact, it was. And so, when they made the determination that there was no evidence of antitrust injury, they did that in the presence of a full record on that issue. There was no way that anyone could have thought that that issue was not before the --
04-597 +++$+++ 26869 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or as much of the record as the other side wanted to produce.
04-597 +++$+++ 26870 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we have to assume they covered their bases, Your Honor, yes. Now, let me talk a little bit about some of these issues that have come up. First, with respect to the motion for a new trial, there was a motion for a new trial, under Rule 59, filed in this case. The grounds for that motion were not sufficiency of the evidence; but, under Rule 59, when a motion is made for a new trial, on any grounds, it is before the District Court on all grounds.
04-597 +++$+++ 26871 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm looking at the motion that you made, which was not in the first instance for a new trial; it was for a remittitur. This is on page 34(a) of the joint appendix. And you made a motion, in the alternative, for a new trial on antitrust damages, not liability. So, I was really struck by the statement in your brief that you had, indeed, made a motion for a new trial. You made it a motion for a remittitur and, in the alternative, a new trial, limited to damages. You said nothing about a new trial on liability.
04-597 +++$+++ 26872 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. I'm merely pointing out that, under Rule 59, once a motion for a new trial is made, all issues relating to a new trial are before the court.
04-597 +++$+++ 26873 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ A new trial on damages -- that's all you asked for -- not a new trial on liability.
04-597 +++$+++ 26874 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. But I certainly would refer the Court to the Cone case, which I think is very similar to this case, procedurally. In Cone, there was a Rule 59 motion. There was no Rule 50(b) -- excuse me, a Rule 50(a) motion, no Rule 50(b) motion. There was a motion for a new trial on the grounds of newly discovered evidence. Nevertheless, in the Cone case, the Court remanded the case for further proceedings, and the -- and the court below considered the question. And, in the end -- the published opinions indicate, that case went back to the Fourth Circuit, and --
04-597 +++$+++ 26875 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It --
04-597 +++$+++ 26876 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in the end --
04-597 +++$+++ 26877 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- it was -- the new trial request had to do with liability --
04-597 +++$+++ 26878 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-597 +++$+++ 26879 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- whether it was for newly discovered evidence or something else. But you -- your motion was limited to damages. And I really don't think that you can get where you want to go from a motion that is limited to damages, when you didn't need to. You could have made a motion for a new trial on the whole case.
04-597 +++$+++ 26880 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, of course, Your Honor, if there were no proof of damages, the whole antitrust claim would fail. But I would also say that it seems to me that when a motion is made under Rule 50(a) for judgment as a matter of law, that certainly permits the District Court to grant a new trial, because it's a lesser remedy. And we see situations all the time --
04-597 +++$+++ 26881 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why -- it's -- why is that a lesser remedy? It's just different. I mean, remittitur is a lesser remedy, too, but you don't say, "Well, if you've made a motion for a new trial, and then that falls by the wayside, you -- the court can do remittitur." The approach seems to be, "Something's wrong here, and we have to do something, so what is it that we can do?" And you look around, "Well, maybe we can give them a new trial, or maybe we can have a remittitur." But there are different motions for all these different things, and, if they haven't been made, they seem to be off the board.
04-597 +++$+++ 26882 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, certainly, Your Honor -- let's take another example. Suppose a litigant asks, as sanctions, that the case be dismissed. Well, the District Court certainly could say, "Well, you have a point, sanctions are in order. But I'm not going to dismiss the case, I'm going to give you something else." There are many situations like that, where a particular remedy --
04-597 +++$+++ 26883 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the problem there is still the same. Whatever it is that gave rise to the motion to dismiss as a sanction -- the misconduct by counsel -- you're still addressing that same problem. But a new trial addresses different issues than a judgment as a matter of law, and remittitur addresses different issues than a new trial.
04-597 +++$+++ 26884 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it seems to me that it is the principal point of the trilogy that when a motion is made for entry of judgment based on insufficiency of the evidence, that raises the question of whether there ought to be a new trial. That was the principal point discussed in the trilogy, that you really can't have one without the other.
04-597 +++$+++ 26885 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The principal point was that the Court of Appeals could not enter -- direct the entry of judgment as a matter of law if a 50(b) motion had not been made. That's what those three cases --
04-597 +++$+++ 26886 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
04-597 +++$+++ 26887 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- invoke.
04-597 +++$+++ 26888 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- absolutely correct, Your Honor, the trilogy stands for that proposition. But in all three cases of the trilogy, even though there was no Rule 50(b) motion, those cases were all remanded. In no case was the verdict winner who had insufficient evidence allowed to prevail. They just remanded the cases. So, the Solicitor General relies on stare decisis, but he's asking the Court to do something radically different from what happened in any of those cases of the trilogy. They're asking that judgment be entered for the party that failed to --
04-597 +++$+++ 26889 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Had Rule 59 motions been made in those cases?
04-597 +++$+++ 26890 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not clear from the record, I don't believe, as to all of the cases, Your Honor, but certainly it is clear in the first case, the Cone case, that there was a motion for a new trial, but it was based on different grounds. It was based on newly discovered evidence.
04-597 +++$+++ 26891 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So far, you're halfway into your argument. I thought the basic question here was, first, whether a Court of Appeals, or anybody, can grant a J- -- what used to be called a JNOV without your making its -- whatever it's called now -- and without somebody making it a motion. And from your not opposing that, I guess the answer to the question is, of course not. Of course you have to make a motion. You have to make a motion for everything. The judge is not a genius. He can't -- is not a mindreader. And if you don't make a motion, you lose. Okay? Now, is there any argument against that?
04-597 +++$+++ 26892 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ When you say "that," Your Honor, you mean with respect to the -- to the new trial or with respect --
04-597 +++$+++ 26893 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I -- I mean, I thought -- there are two parts to this. Question one is, Can you possibly get a judgment -- what used to be called a JNOV or a JMOL or whatever -- from the Court of Appeals, when you didn't make a motion for it, after the jury came in, in the District Court?
04-597 +++$+++ 26894 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The --
04-597 +++$+++ 26895 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They say, "Of course you have to make a motion." And, so far, I've heard no response whatsoever to what I'd think is a fairly basic question in this case. And I'm assuming: of course you have to make a motion.
04-597 +++$+++ 26896 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. I'm glad you raised that point, because it is the fundamental point of the case. Rule 50(a) provides that a motion for judgment as a matter of law can be made, and specifically says that the judge can grant that motion. And then the rule goes on to say that that motion is deemed to continue to be pending. There is nothing in Rule --
04-597 +++$+++ 26897 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, it doesn't say it -- it is deemed to continue to be pending. The issue is deemed to be reserved.
04-597 +++$+++ 26898 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-597 +++$+++ 26899 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which is a very different issue. In other words, it's not waived and over with at that point, but it says nothing whatsoever, in express terms, about pending motions.
04-597 +++$+++ 26900 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, I agree, Your Honor. I paraphrased the rule. But the point is that the motion is still pending. In --
04-597 +++$+++ 26901 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, the issue is reserved. The motion has been ruled upon. The judge says, "No, I'm not going to grant this motion before submitting the issue to the jury." That's the end of the motion. The issue isn't over with, because it can be raised again after the verdict. Isn't that what the rule provides?
04-597 +++$+++ 26902 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's certainly not the way I would read it, Your Honor, because in this case --
04-597 +++$+++ 26903 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How about a --
04-597 +++$+++ 26904 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's the way this Court has read it. That's the problem.
04-597 +++$+++ 26905 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe so, Your Honor, because if the Court -- if the rule says that the Rule 50(a) motion can be granted; conversely, it can be denied. If it can be granted or denied, those decisions are appealable under section 2106, which is the general provision that orders of the court can be appealed. I do not see anything in Rule 50 that says that denial of the 50(a) motion is not appealable. What Rule 50(b) does is --
04-597 +++$+++ 26906 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it can't -- it can't be -- it would be interlocutory at that stage. It couldn't be raised until final judgment is entered.
04-597 +++$+++ 26907 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think that would be a most peculiar rule. Entering judgment in a case is one of the most fundamental and important things that a court does.
04-597 +++$+++ 26908 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but you don't go up on appeal with a final judgment rule, a firm final judgment rule, as there is in the Federal system, from the denial or refusal to act on a 50(a) motion.
04-597 +++$+++ 26909 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-597 +++$+++ 26910 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The trial isn't over. There is no judgment. You can't appeal til you have a final judgment.
04-597 +++$+++ 26911 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's certainly correct, Your Honor, there can be no appeal without a final judgment. But what I'm saying is that an interpretation of Rule 50, as a whole, which says to the trial court judge that a judgment should be entered without resolving the question of whether there is sufficient evidence, and then take that up later, under Rule 50(b), isn't a very good way to proceed.
04-597 +++$+++ 26912 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, there is, you know -- I mean, this truly is a case where a page of history is worth much more than logic. The reason for that somewhat strange language is, at common law, it was thought, once the jury came in with a verdict, that was it, the judge had no power to overturn it, because of the Seventh Amendment's Reexamination Clause, "no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of common law." And the rule of common law that is embodied in this somewhat strange language in Rule 50 is that there could be a reserved question so that after the jury comes in with the verdict, the judge would be deciding the pre-verdict question by this post-verdict motion. I mean, there's -- none of this is in doubt, where this language in 50 comes from. It comes from a need to adjust to the Reexamination Clause of the Seventh Amendment. Isn't that so?
04-597 +++$+++ 26913 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, that's all correct, Your Honor. But if there were no provision of the rule that reserved decision under 50(a), I would still say that the denial of the 50(a) motion should be appealable when the judgment is entered, because the -- all of the prior orders of the court merge into that judgment when it's entered.
04-597 +++$+++ 26914 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you don't get it out of that language, because that language is there for the specific purposes of allowing a judge, after their verdict, to enter judgment NOV.
04-597 +++$+++ 26915 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. It certainly is there for that purpose. But the rule doesn't mandate that the court -- that the case proceed by that route. What I'm saying is that once the 50(a) motion is made and denied, the stage is set for an appeal pursuant to section 2106. The Rule 50(b) route is merely there to allow a litigant, who does not believe that the issue has been fully heard, briefed, considered by the court, to raise the issue again, but not to put us in the position where, in the normal course, the judge follows the usual procedure of submitting the case to the jury, because the jury may resolve the problem by deciding the case in favor of the party that should win on the evidence, but then, at that point, the judge merely has to enter -- has to enter judgment in order to trigger the 50(b) motion. That doesn't seem to be a good way to proceed, and I don't believe that's what's contemplated by the rule. And, in fact, it is a common practice among --
04-597 +++$+++ 26916 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He doesn't enter judgment to trigger the 50(b) motion. The 50(b) motion is made in between the verdict and the entry of judgment.
04-597 +++$+++ 26917 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, the rule says that it can be made up to 10 days --
04-597 +++$+++ 26918 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
04-597 +++$+++ 26919 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- after the entry of judgment. So, from the point of view of the District Court, if the court ever wants to get to the end, wants to put a time limit on this, the only way to do it is to enter judgment. That forces the moving party to get a 50(b) motion --
04-597 +++$+++ 26920 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I don't --
04-597 +++$+++ 26921 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- on account of the defendant.
04-597 +++$+++ 26922 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I don't follow that, because you -- you know, I'm sure, that it's almost routine that -- yes, you have the 10 days, the extra 10 days, under the rules -- but isn't it almost routine, at a trial, that the verdict loser will say, "Judge, please give me JNOV, or, if not, a new trial"? They don't wait til after the judgment is made -- entered. They could. But it's just -- well, in the trials I've seen, it's almost by rote that lawyers who lose, where the jury comes in for the other side, will renew the judgment-as-a-matter-of-law motion and ask, in the alternative, for a new trial. Isn't that the common practice?
04-597 +++$+++ 26923 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think it's a common practice in those circuits which have indicated that a 50(b) motion is required to preserve all rights to appellate review. Whether or not it is the common practice in other circuits where that is not required, I'm not sure. Certainly --
04-597 +++$+++ 26924 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's not a question of what is required or what is permissive, but isn't it to the lawyer's advantage, to the client's advantage, to say to the judge, sooner rather than later, "Look don't enter judgment. Give me -- give me judgment NOV or at least a new trial"?
04-597 +++$+++ 26925 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, this case may be a little different from some, in that the precise issue that was presented to the Federal Circuit, the failure of proof, was something that was identified very early in the case. And it was presented numerous times to the District Court by a way of a summary judgment motion, by way of the pretrial briefs. And the issue had not changed. And, in fact, when the 50(a) motion was made, at the end of the trial, the Court may have noticed that it was made in a rather peculiar way, an attorney attempting to persuade the court that that motion should be granted wouldn't begin the motion by saying, "For the record." But that's what happened here. It was known, at that point, that the judge had made up her mind as to this issue, and wasn't going to change it, and, in fact, declined, on several occasions, to even listen to argument on the point. So, the filing of a 50(b) motion would seem to be contrary to the generally accepted practice that attorneys are not --
04-597 +++$+++ 26926 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if -- should we disagree with you, Mr. Schroeder, on that, you seem to fall back, at the end of the day, on a plain-error notion. Is --
04-597 +++$+++ 26927 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-597 +++$+++ 26928 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that right?
04-597 +++$+++ 26929 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- there are several things that we would fall back on, Your Honor. When you say "fall back," I assume that that means if the Court were not to follow the precedent of the trilogy --
04-597 +++$+++ 26930 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If we don't agree with you on the --
04-597 +++$+++ 26931 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ On the meaning of --
04-597 +++$+++ 26932 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- need for a --
04-597 +++$+++ 26933 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the trilogy.
04-597 +++$+++ 26934 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- 50(b) motion.
04-597 +++$+++ 26935 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. Under those circumstances, there were two questions. One is, of course, plain error, and the other is retroactivity.
04-597 +++$+++ 26936 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Have we ever said that plain error would preserve this, in the civil context?
04-597 +++$+++ 26937 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. We have found no case, either way --
04-597 +++$+++ 26938 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I --
04-597 +++$+++ 26939 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- on that.
04-597 +++$+++ 26940 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- haven't either.
04-597 +++$+++ 26941 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's -- there's no precedent that --
04-597 +++$+++ 26942 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But even if there were, how could this kind of error ever be plain?
04-597 +++$+++ 26943 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-597 +++$+++ 26944 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ever?
04-597 +++$+++ 26945 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I --
04-597 +++$+++ 26946 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If there's no evidence at all. You have a patent, and a patent is a monopoly. And so, what -- obviously, it monopolizes a market, it monopolizes the market of the patent. And you'd have to be a genius in antitrust law to know something's wrong with that argument. And so, how could it all be plain?
04-597 +++$+++ 26947 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, there was another claim in this case on which Unitherm did recover, which is not before this Court, which was a claim for --
04-597 +++$+++ 26948 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That has nothing to do with my question.
04-597 +++$+++ 26949 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure.
04-597 +++$+++ 26950 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You were saying that the mistake was that there was not sufficient evidence that there was injury of an antitrust kind, and that there was a market. So, I'm saying a person who knows a little, but not a lot, of antitrust law would think, "Obviously, there's a market here. There's the market covered by the patent."
04-597 +++$+++ 26951 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there's not --
04-597 +++$+++ 26952 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Obviously, there's injury, because a patent allows you to raise the price. End of the matter. Now, that's naive, but somebody who doesn't know antitrust law thoroughly couldn't possibly think that there is plain error here. What's the response to that?
04-597 +++$+++ 26953 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think, Your Honor, first of all, in determining plain error, it's necessary to put it in the context of this case, where that very issue had been raised repeatedly and had, in fact, been ruled on by the court in denying the summary judgment motion. So, we weren't dealing with someone who was naive in this respect. We were dealing with someone who had faced this precise issue, and the very closely related issue of antitrust standing, which focuses on antitrust injury. So, we got to this point in the trial. We had a great deal of history --
04-597 +++$+++ 26954 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What I'm worried about, to put all my cards on the table -- if we were to say there is even a possibility of plain error in this case, the plain-error exception in the rules would become a monster, wherein complex cases, people who hadn't made the proper motions would all be arguing plain error just as if they had.
04-597 +++$+++ 26955 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, certainly the plain-error argument is always, in a sense, available, Your Honor. But I do think this is an extreme case, and I think that's reflected by what the Federal Circuit said, that I read at the beginning of my argument. But that's extremely strong.
04-597 +++$+++ 26956 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's an extreme case, because there's insufficient evidence?
04-597 +++$+++ 26957 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's an extreme case for a number of reasons, and that's certainly one of them. There isn't just insufficient --
04-597 +++$+++ 26958 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's --
04-597 +++$+++ 26959 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- evidence, but --
04-597 +++$+++ 26960 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- not going to be plain error in every insufficient-evidence case.
04-597 +++$+++ 26961 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but in -- this is a -- an -- a case in which the insufficiency of the evidence was extremely apparent. These parties --
04-597 +++$+++ 26962 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right, let's assume it's extremely apparent. Isn't -- and assume, just for the sake of argument, that we have a simple case, not a complex case, so it's easy to see that, in fact, the evidence falls short. It's still the case that this Court has discouraged, or has certainly -- has either discouraged the granting of motions at the close of the plaintiff's case, or at the close of all the evidence -- in any event, has put its imprimatur on denying those motions, subject to renewal after verdict. How can we possibly find that there is plain error when a court does exactly what we have encouraged them to do in order not to waste a lot of trial time and jury time? How could we ever find there is plain error, except with respect to the renewed motion after the verdict?
04-597 +++$+++ 26963 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, certainly where the motion has been made and has, in fact, been briefed, and has been considered by the court, and where you have a situation in which --
04-597 +++$+++ 26964 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And we have said, "Don't grant it."
04-597 +++$+++ 26965 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor?
04-597 +++$+++ 26966 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And we have said, "Don't grant it."
04-597 +++$+++ 26967 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I guess we'd go back to the proposition that -- I believe that the District Court could grant the 50(a) motion later; it did not have to wait for a 50(b) motion. And, in fact, it is a very common practice --
04-597 +++$+++ 26968 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It could do that even after it had ruled upon it and had denied it?
04-597 +++$+++ 26969 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, certainly in situations where the Court simply enters judgment and doesn't deny the motion first, that would be true --
04-597 +++$+++ 26970 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I --
04-597 +++$+++ 26971 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- would be true. But --
04-597 +++$+++ 26972 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I --
04-597 +++$+++ 26973 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- even here --
04-597 +++$+++ 26974 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I will -- I will grant you that, were it not for our cases, textually, the argument you make is possible. But I don't see how you can make that argument without our overruling a lot of law.
04-597 +++$+++ 26975 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I -- when it comes to "overruling a lot of law," I think that the fundamental fact here is that, in the trilogy, the case was always sent back for a new trial. Never was judgment entered in favor of the party that had failed to prove its case. So --
04-597 +++$+++ 26976 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Sent back to -- for a new trial because the Court of Appeals ordered a new trial, or sent back to the trial court for that court to decide as a matter of that court's discretion, whether to order --
04-597 +++$+++ 26977 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. Sent back --
04-597 +++$+++ 26978 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- a new trial? The latter.
04-597 +++$+++ 26979 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to the District --
04-597 +++$+++ 26980 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it --
04-597 +++$+++ 26981 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Court.
04-597 +++$+++ 26982 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- it was not -- but, here, you're asking us to affirm something that a Court of Appeals did.
04-597 +++$+++ 26983 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- the Court of Appeals ruled that the case should go back to the District Court. We are asking this Court to affirm that and send the case back to the District Court, as a Federal Circuit ruled.
04-597 +++$+++ 26984 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not even sure your argument is so strong on the text, frankly. I don't know why 50(b) says -- it sets forth what can be done when the renewed motion is made. You can, if a verdict was returned, allow it to stand, order a new trial, direct entry of judgment. If no verdict was returned, order a new trial, direct -- Why does the rule only say, "In ruling on a renewed motion, the Court may"?
04-597 +++$+++ 26985 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor.
04-597 +++$+++ 26986 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why wouldn't it say, "In ruling on a renewed motion or in acting upon the motion previously reserved," comma, "the Court may"?
04-597 +++$+++ 26987 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-597 +++$+++ 26988 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, where --
04-597 +++$+++ 26989 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I --
04-597 +++$+++ 26990 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and where does it get the power to do these things, in ruling on a motion previously reserved, if it's not set forth there?
04-597 +++$+++ 26991 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you look at 50(a), Your Honor, it specifically says that the 50(a) motion can be granted. Now, that would be inconsistent with a view of the rule that says that the only remedies available are set forth in section (b) and triggered by the renewal of the motion.
04-597 +++$+++ 26992 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I'm talking about the only remedy available after the motion has been reserved, after --
04-597 +++$+++ 26993 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-597 +++$+++ 26994 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the court has declined to rule on it once.
04-597 +++$+++ 26995 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if the motion is reserved, and the court has declined to rule on it, then the -- it would seem to me that it follows that the court can grant that motion.
04-597 +++$+++ 26996 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that's all.
04-597 +++$+++ 26997 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it can also enter judgment, which constitutes another denial --
04-597 +++$+++ 26998 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can it order a new trial?
04-597 +++$+++ 26999 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Most certainly. Because --
04-597 +++$+++ 27000 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where does he get that power, under (a)?
04-597 +++$+++ 27001 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is a --
04-597 +++$+++ 27002 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Unless --
04-597 +++$+++ 27003 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is a lesser remedy -- than the one requested, that was --
04-597 +++$+++ 27004 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, well, then it shouldn't have been set forth in (b). You didn't have to say it. You could have just said, you know, "Allow" --
04-597 +++$+++ 27005 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Rule 50(a) doesn't literally say that the motion can be denied. It simply says that it can be granted. But I think we have to infer from that, that it can be denied. And I would equally infer that a lesser remedy is possible once the 50(a) motion is made. But I don't think it's possible to read the rule as saying that the only way these remedies are available is through a 50(b) motion, because that's inconsistent with the provision that the motion can be granted under 50(a). The -- it, further, seems to me that if the -- if the motion is -- if decision on the motion is deemed to be had -- to have been deferred, then that motion is still before the court, even if the court has denied it. And the court can grant it later on --
04-597 +++$+++ 27006 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but the --
04-597 +++$+++ 27007 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- instead of interjecting --
04-597 +++$+++ 27008 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- rule doesn't deem it to have been deferred. A judge may, in fact, not rule on it, although he does not grant it. But the rule does not say that the motion is deemed to be deferred. The rule talks about the issue being reserved, which is a different thing. And the issue may be reserved whether the judge rules on the motion or simply says, "I will take it under advisement and you can renew it after the verdict if you want to." Isn't that correct?
04-597 +++$+++ 27009 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I would have stopped sooner, Your Honor. I would have said, "I will take it under advisement." That is really the essence of the rule, that the Court has this under advisement. And it is a very common --
04-597 +++$+++ 27010 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that may be, but it's still the case that the rule does not deem the -- this rule does not deem, in my terms, the ruling on the pre-verdict motion to have been deferred.
04-597 +++$+++ 27011 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, it is certainly a common practice that, while the --
04-597 +++$+++ 27012 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm asking you about what this rule says. Did I just get the rule wrong?
04-597 +++$+++ 27013 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think that if ruling on that motion --
04-597 +++$+++ 27014 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you don't --
04-597 +++$+++ 27015 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- had been inferred --
04-597 +++$+++ 27016 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- want to answer the question, just say so.
04-597 +++$+++ 27017 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I'm -- I'm very pleased to answer the question, Your Honor. I believe that the rule permits the judge to decide the 50(a) motion at any time prior to entering judgment. And the judge can change his or her mind on that at any time, because the issue is still before the court.
04-597 +++$+++ 27018 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can a judge grant a new trial on a 50(a) motion?
04-597 +++$+++ 27019 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-597 +++$+++ 27020 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Counsel.
04-597 +++$+++ 27021 +++$+++ TRUE +++$+++ MR. SCHROEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Your Honor.
04-597 +++$+++ 27022 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Bailey, you have 1 minute remaining.
04-597 +++$+++ 27024 +++$+++ FALSE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice.
04-597 +++$+++ 27025 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you agree on the answer -- with the answer to the last question I asked? Can -- on a 50(a) motion, can a judge grant a new trial instead of granting judgment?
04-597 +++$+++ 27026 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
04-597 +++$+++ 27027 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I didn't.
04-597 +++$+++ 27028 +++$+++ TRUE +++$+++ MR. BAILEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The result ConAgra contends for here, may it please the Court, leads to some really bad results. It requires the rejection of longstanding precedent by this Court. It overrules the jurisprudence of eight circuits. It offends the special competency of the trial court. It deprives the appellate court of the trial court's evaluation, an impartial evaluation of the sufficiency of the evidence, so the appellate court is left to sift through the record, an entire record, searching for points that have never been joined below. And it creates confusion, subjectivity, and differing legal standards nationwide. Thank you.
04-597 +++$+++ 27029 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Bailey. The case is submitted.
04-603 +++$+++ 27034 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument now in No. 04-603, Grable & Sons Metal Products v. Darue Engineering. Mr. Zagrans.
04-603 +++$+++ 27036 +++$+++ FALSE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, good morning, and may it please the Court: In Merrell Dow Pharmaceuticals, the Court recognized an important limitation on the Court's prior substantial Federal question cases. The Sixth Circuit should have followed Merrell Dow rather than ignoring it in deciding whether the presence of a Federal issue in this Michigan quiet title action properly gave rise to Federal question jurisdiction. According to Merrell Dow, any State law claim that alleges a violation of a Federal statute as an element of the State law cause of action does not state a claim arising under Federal law for section 1331 purposes unless --
04-603 +++$+++ 27037 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you take the view that Merrell Dow somehow just silently overruled about five cases dealing with quiet title actions?
04-603 +++$+++ 27038 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice O'Connor, we do not take that position. We take Merrell Dow --
04-603 +++$+++ 27039 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That seems to be your position. I mean, I don't think Merrell Dow necessarily had that effect.
04-603 +++$+++ 27040 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Agreed. We believe that Merrell Dow's decision can be synthesized with the holdings in those cases that Your Honor is referring to by reference to the nature of the Federal interest that is at stake and the role that Congress plays. In the Smith v. Kansas City Title & Trust Company line of cases and in Hopkins v. Walker, both of those are different sorts of cases from Merrell Dow where Congress provided the Federal right that was alleged to have been violated, and the Court held that when Congress provides a Federal statute that is -- is serving as an element of a State law claim, then Congress must have intended also to provide a Federal private right of action in order for there to be arising-under jurisdiction. That's the distinction.
04-603 +++$+++ 27041 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Haven't we -- haven't we got something equally different here? The -- the issue here, as I understand it, is -- is not litigation of the State law claim, but a claim under Federal law with respect to the passage of title when property is taken for taxes. As I understand the -- the original plaintiff's claim, it simply is that if he's right, under Federal law he is entitled to a declaration that the property is still his. If he's wrong, the other side is entitled to property. But the issue is a Federal issue, and the only way the State has a role in it is that the State provides a mechanism, the quiet title action, analogous maybe to 1983, for getting it into a State court. So it seems to me that the issue is a Federal issue, not as in Merrell Dow, a -- a State cause of action that incorporates by reference a Federal standard.
04-603 +++$+++ 27042 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, I agree that it is a Federal issue. I disagree, with respect, that it's different from Merrell Dow because in both that case and this quiet title action under Michigan law, the alleged Federal issue is one element that needs to be alleged and proved in order to make out the State law claim.
04-603 +++$+++ 27043 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but I don't -- I guess that's where we're parting company. I don't see that there is a State law claim as distinct from a State law procedure for trying that claim in a State court. As I -- as I said a second ago, it's sort of like 1983. It doesn't create causes of action, but it provides a -- a jurisdictional basis for getting into court if you've got a cause of action. And in this case, it's a Federal cause.
04-603 +++$+++ 27044 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I see, Your Honor. Under Michigan's Compiled Laws and under the rule of procedure that this action was brought under, the plaintiff had to allege and prove four things: that he had title, the alleged nature of the defendant's title. He had to describe the property with reasonable particularity, and finally, he had to allege why his title was superior to the defendant's title.
04-603 +++$+++ 27045 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which was a Federal issue.
04-603 +++$+++ 27046 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that is the only Federal issue, just like in Merrell Dow where the Federal -- the violation of the Federal labeling standard was alleged to constitute one element of the product liability claim in that case.
04-603 +++$+++ 27047 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But as Justice Souter pointed out, the State law incorporated the Federal standard and made it its own. Here you have the Federal tax sale and a very strong Federal interest, which was lacking in Merrell Dow. Justice Stevens said that. But here I think there can be no doubt that the Government has a very strong interest in seeing that tax sales convey a secure title.
04-603 +++$+++ 27048 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No doubt, Justice Ginsburg, but I think it is the wrong emphasis to look to what the State's interest is, which was a -- a part of the focus that the Solicitor General's brief was on. For purposes of deciding whether or not Congress intended there to be Federal question jurisdiction, I don't believe the focus should be on the State's interest.
04-603 +++$+++ 27049 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, my --
04-603 +++$+++ 27050 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, sir.
04-603 +++$+++ 27051 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Please, please. I didn't mean to interrupt you. Did you finish your answer?
04-603 +++$+++ 27052 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, but go ahead, Justice Kennedy, please.
04-603 +++$+++ 27053 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, please. Well, my -- my initial view of this case was much like Justice Souter's and -- and I still think that that may be -- may be correct. But I thought your answer to Justice Souter would be that there are many cases in which there is an antecedent Federal title which then goes down through successive purchasers, mining claims, for instance, and those are always under State law. I -- I thought that would be your answer to Justice Souter and -- and also to Justice Ginsburg.
04-603 +++$+++ 27054 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy --
04-603 +++$+++ 27055 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you rely on Merrell Dow, which is fine. But I thought there was a separate line of cases that support you, as well as Merrell Dow.
04-603 +++$+++ 27056 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are, Your Honor, but I think that to give a -- an honest and principled answer to Justice Souter's and Justice Ginsburg's questions, I have to face it in line of Merrell Dow and the cases that Merrell Dow relied on.
04-603 +++$+++ 27057 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We hope all your answers will be principled. (Laughter.)
04-603 +++$+++ 27058 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, sir, Mr. Chief Justice. I hope so too. Justice --
04-603 +++$+++ 27059 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, Justice O'Connor had asked you about the -- the quiet title cases, but Kansas City Title & Trust is still good law. It wasn't overruled.
04-603 +++$+++ 27060 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Ginsburg, I agree. It is good law. And I think the distinction that I am asking the Court to draw between that case and Merrell Dow is this. Both cases should be decided under the rubric that arising-under jurisdiction depends upon whether a Federal issue in an otherwise State law case provides a -- a -- an outcome-determinative means of resolving the case, and that -- in other words, where the resolution of the case depends upon a substantial question of Federal law. But the difference between Kansas City Title & Trust and Merrell Dow is the nature of the Federal interest at stake and the different ways they should be applied. In Kansas City Title & Trust, the interest was -- or the alleged violation was a Federal constitutional violation.
04-603 +++$+++ 27061 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but the Court didn't make it -- the Court's proposition in Kansas City Title & Trust was if it appears from the complaint that the right to relief depends on the construction or application of the Constitution or laws of the United States. So are you asking us to take out or laws as dictum, or what is your position?
04-603 +++$+++ 27062 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that the Court in Merrell Dow made a limitation on that phrase that Your Honor is quoting from, and the limitation is where Congress controls the jurisdiction of the Federal courts, such as with Federal statutory law, then the limitation of Merrell Dow that Congress must also have intended to create a Federal private right of action obtains. I believe that's --
04-603 +++$+++ 27063 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, when does -- when does the -- when do the words, or laws, in Kansas City Title & Trust have operative effect?
04-603 +++$+++ 27064 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ When -- when, as Merrell Dow says, Congress intended there to be a Federal private right of action for violation of the statute is alleged to be --
04-603 +++$+++ 27065 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You mean that the -- are you saying then in the context of this case that the Federal law would have to create a quiet title action, which is traditionally State law?
04-603 +++$+++ 27066 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, that's exactly what we are arguing.
04-603 +++$+++ 27067 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But doesn't Congress have to create causes of action for constitutional violations as well, or at least for most of them?
04-603 +++$+++ 27068 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, Congress has not created a jurisdictional statute for Federal constitutional claims, which is why the Bivens doctrine arose, unlike section 1983.
04-603 +++$+++ 27069 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, maybe this needs -- I mean, if were to clarify --
04-603 +++$+++ 27070 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Wait.
04-603 +++$+++ 27071 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Sorry.
04-603 +++$+++ 27072 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm -- I'm not sure that I -- that I'm satisfied with the answer. You're -- you're trying to give us one rule for constitutional claims and another rule for statutory claims?
04-603 +++$+++ 27073 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I am, Your Honor.
04-603 +++$+++ 27074 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ On -- on what basis? I don't understand it. Certainly in the text of the jurisdictional statute, there's no such distinction. What -- what is the basis for it?
04-603 +++$+++ 27075 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It derives from footnote 12 of Merrell Dow where the Court was attempting to explain this -- this difference that we are discussing. And in footnote 12 of Merrell Dow, the Court says that the nature of the jurisdictional answer will frequently depend upon the different nature of the Federal interest that is at stake. And it distinguished between Smith and -- and Moore in that case, Smith being a Federal constitutional question, Moore being a Federal statutory question.
04-603 +++$+++ 27076 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you think that that explains all of these cases.
04-603 +++$+++ 27077 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, yes, I do because of the nature of Congress' control over whether or not there should be Federal private rights of action. It is consistent with the Court's implied private right of action jurisprudence from Alexander v. Sandoval, from the Central National Bank of Denver case, et cetera.
04-603 +++$+++ 27078 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you can't get anything out of the words of the -- of the statute arising under to help you.
04-603 +++$+++ 27079 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Kennedy, I don't believe you can because as many of the cases that this Court has decided point out, those words are broad. They are the exact same language that the constitutional grant of Article III jurisdiction uses, and therefore, they have to be given content in some other fashion.
04-603 +++$+++ 27080 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So just the strength of the Federal interest is the --
04-603 +++$+++ 27081 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Clearly the --
04-603 +++$+++ 27082 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the controlling test?
04-603 +++$+++ 27083 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the strength of the Federal interest is important, Justice Kennedy, but as Merrell Dow pointed out, the Federal interest is not deemed to be substantial enough, or the Federal question at stake in the case is not deemed to be sufficiently substantial unless Congress has created a Federal private right of action for violation of the particular statute that is being pled.
04-603 +++$+++ 27084 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's what I -- I wanted to follow up on this because I think it's a confusion that's embedded in my mind in some of the cases, exactly what Justice Scalia was asking you. And I'd like you to comment on whether the confusion, as I see it, that's involved here is the words -- arises out of the words, private right of action. Private right of action is where, A, one private person sues B, a non-Federal person, under a Federal statute. And the reason that can lead to confusion is because where you have a statute that governs the relation between the Federal Government and a private person, the words private right of action are out of place normally, because an action between the two parties takes place usually under the APA. Now, that's what it seems to me is at work here because the real question is not whether we have a private right of action or APA review. The question is whether Congress wanted to allow a private person to use this particular Federal provision as the basis for judicial review in a lawsuit. And if that's the right question, the answer here is obviously it did. It happens that we would have titled that normally administrative procedural review under the APA. But whether you call it private right of action or you call it APA review is beside the point. In Merrell Dow, Congress did not want actions to come into a court under the statute there at issue. In this case, Congress doesn't mind at all. In fact, it expects actions to come into court under this statute. I'd like you to comment on that thought.
04-603 +++$+++ 27085 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, I disagree with the premise of that thought. Congress in section 7433 did provide what I would like to call a Federal private right of action. It's an action by a private party against the Government, not another private party, for damages in the event the Government violates Federal law in the tax collection process. What Congress did not do -- and the Solicitor General concedes it did not do -- is create a Federal private right of action for quiet title claims in disputes between two private parties.
04-603 +++$+++ 27086 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How did Congress -- surely Congress did not expect any pronouncement of -- of title by the Federal Government to be immune from challenge by private individuals. If Congress did not anticipate that a wrongful assertion of title through the Federal Government could be challenged by a State action of this sort to clear title, how did Congress expect it ever to be challenged? I mean, I can't imagine how else you -- you would attack somebody who -- who claims that he has Federal title.
04-603 +++$+++ 27087 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You would bring, Your Honor, a State quiet title action, as Grable did in Michigan court, and allege, as the basis for the superiority of plaintiff's title in that case, the violation of Federal statute by the Federal agents. And therefore, the purchaser at this Federal tax sale, Darue Engineering in this case, does not have superior title.
04-603 +++$+++ 27088 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which is what -- is -- how does that differ from what happened here?
04-603 +++$+++ 27089 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly what happened here. What --
04-603 +++$+++ 27090 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's exactly what happened here.
04-603 +++$+++ 27091 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What differs, Your Honor --
04-603 +++$+++ 27092 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And -- and is that not precisely what Congress expected? Did not Congress, in fact, approve this manner of challenging the asserted Federal title?
04-603 +++$+++ 27093 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think without question, Your Honor. What Congress, we are arguing, did not approve is the removal of that State law quiet title action to Federal court under arising-under jurisdiction merely because of the presence of a Federal issue as an element of the State law claim.
04-603 +++$+++ 27094 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I think you -- you have to acknowledge there are at least three situations then: number one, where Congress did not create a Federal cause of action and did not expect that the States would create a cause of action to vindicate or challenge the asserted Federal interest; number two, where Congress did create a -- a Federal cause of action; and number three, falling between the two where Congress did not create a Federal cause of action but, in the nature of things, must have anticipated that there would be State causes of action resting upon the Federal claim.
04-603 +++$+++ 27095 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I agree, Your Honor. And in Merrell Dow, the Court held that in those middle cases --
04-603 +++$+++ 27096 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why was that a middle case?
04-603 +++$+++ 27097 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Why was that a middle case? Because in Merrell Dow, the State of Ohio had product liability tort law --
04-603 +++$+++ 27098 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Congress would not have necessarily anticipated that the States would glom onto a Federal criterion for purposes of their State -- of their State tort law --
04-603 +++$+++ 27099 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
04-603 +++$+++ 27100 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- whereas here, Congress must have anticipated that quiet title actions of this sort would be brought.
04-603 +++$+++ 27101 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, when Congress enacted the Federal Food, Drug and Cosmetic Act and did not provide a Federal cause of action for it and yet laid out Federal standards of conduct for labeling of drugs like Bendectin in that case, Congress must have understood that without it creating a Federal private right of action, the States -- the State product liability law, State inadequate warning law would subsume claims --
04-603 +++$+++ 27102 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it wasn't necessary.
04-603 +++$+++ 27103 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- for a violation of that Federal standard.
04-603 +++$+++ 27104 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It was -- that's the difference. The State in Merrell Dow chose to adopt those Federal standards. It was a choice. I don't think a State has the prerogative to ignore the effect of a Federal tax sale. This is not a matter of State choice, and that, it seems to me, is the large difference between the two cases: one, where the State chooses to recognize Federal standards when it doesn't have to, and here, there's no question that the Federal law governs the security of this title. It's not an option for the State to ignore it.
04-603 +++$+++ 27105 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, that's an argument that appears in the Solicitor General's brief as well, and I believe that the Solicitor General's focus on a difference in State interests is misplaced when one is dealing with Federal jurisdictional principles. Instead, I think the focus should be on the expression of the Federal interest, and the best expression of the Federal interest at stake is congressional intent when one is dealing with acts of Congress, Federal statutory law.
04-603 +++$+++ 27106 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right, except the -- except you sort of abandon that for constitutional questions for some inexplicable reason.
04-603 +++$+++ 27107 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia --
04-603 +++$+++ 27108 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, no. It's an explicable reason to distinguish other earlier cases.
04-603 +++$+++ 27109 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right. That's exactly right. To -- to try to -- to try to not have to argue that, as Justice O'Connor's initial question to me supposed, that all of that prior case law, prior to Franchise Tax Board and Merrell Dow, somehow would go out the window sub silentio. And that's not what we are arguing.
04-603 +++$+++ 27110 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you -- so you are -- you are proposing one way to reconcile Kansas City. You say, well, that's the constitutional claim. But why isn't it at least as good a reconciliation to say once you go through -- there's -- there's a Federal claim -- there's a Federal question that's dispositive of this case, and you agree that that's so here. The whole thing turns on the meaning and effect of that notice provision. So the Federal question is what determines this case, and you satisfy the well-pleaded complaint standard. Then at that point, when you satisfy the basic Kansas City Title & Trust provisions, then to see which way to swing, why isn't it appropriate to say is this a case where the State has a large interest and the Federal interest is not significant? Or, on the other hand, is it a case where there is a large Federal interest in seeing how this comes out?
04-603 +++$+++ 27111 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because, Justice Ginsburg, I think the focus is on the substantiality of the Federal question and that's where the difference between the two situations you are positing lies. With constitutional claims, they are almost always substantial Federal questions. With Federal statutory violations alleged as part of a State law cause of action, Merrell Dow says they are not substantial enough to confer arising-under jurisdiction unless Congress intended to create a Federal private right of action for the violation of that particular statute. So --
04-603 +++$+++ 27112 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you're saying that Merrell Dow did take out those words, or laws, from the Kansas City Title & Trust.
04-603 +++$+++ 27113 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. I -- I suppose that would be the effect of how it would have to be read But it's not a question of one Federal interest is less than another. Anytime Federal law is involved, the Federal interest is great. The issue is for arising-under purposes, for section 1331 purposes, whether the Federal question is substantial or not sufficiently substantial to confer arising-under jurisdiction. That's the import in our argument and our submission, the holding of Merrell Dow.
04-603 +++$+++ 27114 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I take it you would agree that we could leave the -- the Kansas City formulation, the oral laws, intact and say that the distinguish -- that the distinction between Merrell Dow and this case, which leaves it intact is the distinction between in Merrell Dow's case, the adoption by the State of a Federal standard, though the State did not have to adopt it in its tort law, purely optional, and in this case, the application of Federal law which, under the Supremacy Clause, the State had absolutely no choice but to apply. If we recognize that distinction, we could leave the language in Kansas City exactly where it is, couldn't we?
04-603 +++$+++ 27115 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Souter, I don't think you could because I think to do that would federalize a great many State law causes of action that just happen to have, as an element of them, a violation of some Federal law that, due to the Supremacy Clause, the States would, of course, be obliged to enforce.
04-603 +++$+++ 27116 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What -- what are the -- sort of the -- the horribles that you have in mind?
04-603 +++$+++ 27117 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ An example would be anytime a tax preparer makes a mistake of Federal income tax law in -- in preparing a return for a client and, as a result of that, the client pays more tax than they otherwise should have and they have a claim against the tax preparer either for common law negligence or professional malpractice under State law, but why did the -- the preparer commit malpractice? Because of an interpretation of Federal tax law.
04-603 +++$+++ 27118 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but in -- in that case, the action is not enforcing the Federal tax law, whereas in this case, the action is, indeed, enforcing the passage of title statute under the -- under the tax code.
04-603 +++$+++ 27119 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The tax code, section 6338(b) specifically provides that title passes under State law, not under Federal law. The only issue of Federal law here --
04-603 +++$+++ 27120 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But Federal law is determinative.
04-603 +++$+++ 27121 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The only issue of Federal law here that is determinative is whether or not the agents gave proper notice of the seizure. And interestingly, Justice Ginsburg made reference to the well-pleaded complaint rule. There is a secondary issue in this case, and that is that the disputed issue of Federal law was not part of the well-pleaded complaint. There is no dispute that the IRS failed to give the statutorily required notice of personal notice.
04-603 +++$+++ 27122 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Wasn't that in the -- in the pleading?
04-603 +++$+++ 27123 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was, indeed, Your Honor.
04-603 +++$+++ 27124 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Wasn't that in the complaint?
04-603 +++$+++ 27125 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the complaint that they failed to do it. That is undisputed. The -- the defendant concedes it. The Government concedes it. What was disputed was that there's a different statute --
04-603 +++$+++ 27126 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the -- but the well-pleaded complaint doesn't say it has to be a disputed allegation. It says it must be -- you couldn't state the claim without having the Federal law in the complaint.
04-603 +++$+++ 27127 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Agreed, Your Honor. But some of the cases suggest that the issue of Federal law, in order to be deemed substantial, must be one that is in good faith disputed. That is to say, undisputed issues of Federal law are not substantial enough by themselves to confer Federal question jurisdiction. So I point out that the disputed Federal issue from a different statute, 6339(b)(2), is in the nature of a defense that Darue asserted. Notwithstanding the strict -- the lack of strict compliance with the notice provision, 6339(b)(2) allows substantial compliance.
04-603 +++$+++ 27128 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I know you want to reserve your time. Just one quick thing. The Government makes the distinction between an action to remove a cloud on title and an action for possession. Do you agree that this is a -- a action to remove a cloud on title?
04-603 +++$+++ 27129 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, under Michigan law, as I understand it, there is no distinction any longer. The action to determine title under Michigan Compiled Law 600.2932 seems to telescope and subsume both of those common law causes of action into one. Unless there are further questions from the Court, I would like to reserve the balance of my time. Thank you.
04-603 +++$+++ 27130 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Very well, Mr. Zagrans. Mr. Walton, we'll hear from you.
04-603 +++$+++ 27132 +++$+++ FALSE +++$+++ MR. WALTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: This case involves only questions of Federal law. It involves no questions of fact. There are no disputes on any of the facts in this case, and without the Federal law, there would be no controversy, there would be no claim, there would be no cause of action. The plaintiff's right to relief in the case requires resolution of a substantial question of Federal law in dispute between the parties in this case, which implicates substantial Federal interests. The attempt to distinguish Merrell Dow -- Merrell Dow is, in fact, consistent with Smith/Gully/Franchise Tax in establishing that test. And the language which the Court utilized in Merrell Dow does not, in any way, abandon those cases or indicate that the logic is inappropriate. The Merrell Dow place in the evaluation -- in the -- in the kaleidoscopic situations which were described by Justice Cardoza is in a situation where a Federal standard has been incorporated into the State law cause of action. That's its place here. It was, I believe, by this Court an attempt to -- to illuminate what would occur in that circumstance, and it is limited to that circumstance. And the -- the question, which is set forth at the beginning in Merrell Dow, about the incorporation -- and I'm -- I'm at page 805. The question presented is whether the incorporation of a Federal standard in a State law cause of action, when Congress intended there be no Federal private action for violations of that Federal standard, makes one arising under the Constitution, laws, or treaties of the United States, all three.
04-603 +++$+++ 27133 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Suppose that the plaintiff here alleged that the tax deed were forged, that the occupant simply forged the tax deed and was occupied under forgery. State cause of action there?
04-603 +++$+++ 27134 +++$+++ TRUE +++$+++ MR. WALTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that that would be a State cause of action, yes.
04-603 +++$+++ 27135 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. Then suppose he alleged not that it was forged, but that this -- that the occupier of the land had -- had misconstrued the occupier's rights to bid at the tax sale or -- or that there -- the tax sale should never have been held. Then that's a Federal --
04-603 +++$+++ 27136 +++$+++ TRUE +++$+++ MR. WALTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Then I -- excuse me, Your Honor. Then I believe that would be Federal, yes. That would require resolution -- that would require construction of the Federal statute.
04-603 +++$+++ 27137 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Suppose --
04-603 +++$+++ 27138 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What if it doesn't require construction, but -- but what if there is a factual controversy? Suppose there is a factual controversy as to whether notice was given and notice is required under the Federal statute. Does -- does that factual controversy with regard to an essential element of -- of Federal law make it a Federal case?
04-603 +++$+++ 27139 +++$+++ TRUE +++$+++ MR. WALTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If it's -- excuse me, Your Honor. If it still presents a question of Federal law, yes.
04-603 +++$+++ 27140 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it doesn't present any question of law, just a question of fact. Let's say both parties agree about the law, but the fact that is determinative of nothing, except the operation of Federal law, is at issue. Now, that -- that would normally -- under 1331, you'd be able to come into Federal court I suppose just where your only dispute is a factual dispute, but it is a factual dispute regarding the operation of Federal law. What -- what if this were just a factual dispute about the operation of Federal law? What would we do with it? Does the fact that it's a factual dispute make it not substantial, not a substantial Federal question?
04-603 +++$+++ 27141 +++$+++ TRUE +++$+++ MR. WALTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that it could still be a substantial Federal question because it could implicate a substantial Federal interest.
04-603 +++$+++ 27142 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, you're taking the -- I mean --
04-603 +++$+++ 27143 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, and how is that different from the forgery?
04-603 +++$+++ 27144 +++$+++ TRUE +++$+++ MR. WALTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor.
04-603 +++$+++ 27145 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How -- how is that different from the forgery hypothetical?
04-603 +++$+++ 27146 +++$+++ TRUE +++$+++ MR. WALTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would -- it would then be the same, Your Honor.
04-603 +++$+++ 27147 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, you're taking the position then, as I understand it -- and I -- I don't disagree with your -- your position necessarily -- that its construction or application --
04-603 +++$+++ 27148 +++$+++ TRUE +++$+++ MR. WALTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-603 +++$+++ 27149 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- of Federal law.
04-603 +++$+++ 27150 +++$+++ TRUE +++$+++ MR. WALTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. That's correct.
04-603 +++$+++ 27151 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-603 +++$+++ 27152 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Suppose the -- there was an issue in this case about the plaintiff in the quiet title action having waited too long. I think here it was 6 years after. So -- so suppose there was a defense of laches under State law. That could be an issue in an action in this format, quiet title action, which would be governed by State law. Isn't that so?
04-603 +++$+++ 27153 +++$+++ TRUE +++$+++ MR. WALTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would, Your Honor.
04-603 +++$+++ 27154 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So that case wouldn't be removable then if the -- if the defense is laches? The plaintiff --
04-603 +++$+++ 27155 +++$+++ TRUE +++$+++ MR. WALTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe -- excuse me, Your Honor.
04-603 +++$+++ 27156 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes?
04-603 +++$+++ 27157 +++$+++ TRUE +++$+++ MR. WALTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that it could be removable because it could still involve the application of the Federal law --
04-603 +++$+++ 27158 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you might never get to the Federal law if the determination of 6 years is too long to wait to bring a suit like this. Then you would remove and you could have an outcome based solely on State law in the Federal court. You'd have a State claim. The issue that divides the parties is how long was too long, and the court decides the case on that basis and never gets to the Federal question.
04-603 +++$+++ 27159 +++$+++ TRUE +++$+++ MR. WALTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I see, Your Honor, yes.
04-603 +++$+++ 27160 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So if laches is pleaded as a defense, then it's not removable? But don't you -- well --
04-603 +++$+++ 27161 +++$+++ TRUE +++$+++ MR. WALTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I'm not certain. That's -- I'm sorry. I'm not certain. I believe that it could be removable, still utilizing the application of the Federal law to that circumstance, even in the factual dispute.
04-603 +++$+++ 27162 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, at what point do you remove the case?
04-603 +++$+++ 27163 +++$+++ TRUE +++$+++ MR. WALTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. I don't understand the question, Your Honor.
04-603 +++$+++ 27164 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ A complaint is filed in State court, and you are the defendant and you want to remove that case to Federal court.
04-603 +++$+++ 27165 +++$+++ TRUE +++$+++ MR. WALTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-603 +++$+++ 27166 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How much time do you have to remove? Would it be in advance of your answer?
04-603 +++$+++ 27167 +++$+++ TRUE +++$+++ MR. WALTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, it would.
04-603 +++$+++ 27168 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So that in my case, you would remove on the basis of the complaint before you put in your answer, and I think you're --
04-603 +++$+++ 27169 +++$+++ TRUE +++$+++ MR. WALTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-603 +++$+++ 27170 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And then you could get into the Federal court, and the answer could be laches and you're in the Federal court and the only question that's decided is the State law question.
04-603 +++$+++ 27171 +++$+++ TRUE +++$+++ MR. WALTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-603 +++$+++ 27172 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I suppose that happens pretty often in removal -- in -- in removed cases. You really don't know what the defense is going to be. If it's removed on the basis of the well-pleaded complaint, when the defense gets there, it -- it may often be a State -- a State defense. Right?
04-603 +++$+++ 27173 +++$+++ TRUE +++$+++ MR. WALTON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's accurate, Your Honor. Excuse me. If there are no additional questions, thank you.
04-603 +++$+++ 27174 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Very well, Mr. Walton. Mr. Gornstein, we'll hear from you.
04-603 +++$+++ 27176 +++$+++ FALSE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: An action arises under Federal law not only when Federal law supplies the cause of action, but also when the plaintiff's right to relief under a well-pleaded State law cause of action necessarily depends on a substantial question of Federal law. That second category of arising-under jurisdiction is -- applies here because petitioner's right to relief under its State law quiet title action necessarily depends on the allegation in its well-pleaded complaint that --
04-603 +++$+++ 27177 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why wouldn't that same rule apply in a State where there's a common law cause of action for ejectment and it's substantively under State law different from a cloud on the title? You discuss in your brief, very helpfully I think, the -- the Hopkins and the Taylor line of cases.
04-603 +++$+++ 27178 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-603 +++$+++ 27179 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How is your statement that you just made consistent with the Court's holding under the Taylor line of cases?
04-603 +++$+++ 27180 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the Taylor line of cases, what is necessary to -- to allege in a well-pleaded complaint for common law ejectment is only that I have title and you're wrongfully here. You do not have to plead the facts that show superiority of title.
04-603 +++$+++ 27181 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So if we had exactly the facts of this case and there's a common law ejectment, you would not say that it goes to Federal court. It would stay in State court.
04-603 +++$+++ 27182 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. On Taylor v. Anderson you are not. But the difference, Justice Kennedy, is in that kind of case, the plaintiff wouldn't be eliminating the cloud on his title. He would just be getting possession of the property. So there's always going to be an incentive for the plaintiff who's faced with a document, a deed, that --
04-603 +++$+++ 27183 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I -- I suppose that --
04-603 +++$+++ 27184 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to -- to sue for cloud on title.
04-603 +++$+++ 27185 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- in a common law ejectment action that we are supposing that what's going to come up is the tax sale.
04-603 +++$+++ 27186 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true.
04-603 +++$+++ 27187 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Which is just the facts of this case. And I suppose that if the plaintiff prevails on the common law cause of action for ejectment, he's got a -- a res judicata defense if the -- if the present occupier then makes another suit based on the tax deed.
04-603 +++$+++ 27188 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the common law cause of action, which isn't available in Michigan, but under the common law cause of action, all was -- all that was determined was that you had a right to possession at the time the lawsuit was filed.
04-603 +++$+++ 27189 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I guess this -- this problem is simply a consequence of the well-pleaded complaint rule.
04-603 +++$+++ 27190 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it is, Justice Scalia.
04-603 +++$+++ 27191 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If we -- we altered that rule, it would make more sense.
04-603 +++$+++ 27192 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- the --
04-603 +++$+++ 27193 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ This -- this kind of peculiarity happens all the time.
04-603 +++$+++ 27194 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does.
04-603 +++$+++ 27195 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It depends on whether the Federal question has to be pleaded or not.
04-603 +++$+++ 27196 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. And the justification for the well-pleaded complaint rule that the Court has authored is that it provides a quick rule of thumb for determining at the outset of the litigation which cases are most likely to be ones where the Federal law issues are at the forefront.
04-603 +++$+++ 27197 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's quick and dirty. We haven't tried to slice the baloney too thin in this area, have we? We -- we -- (Laughter.)
04-603 +++$+++ 27198 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. -- -
04-603 +++$+++ 27199 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's enough to be pretty close.
04-603 +++$+++ 27200 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But the way you stated the rule, if I heard you correctly, you're contending that Merrell Dow was incorrectly decided.
04-603 +++$+++ 27201 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, because Merrell Dow did not involve a substantial question of Federal law, and that was part of the test that I announced. And the difference between this case and Merrell Dow is twofold. First, this case falls within the Hopkins line of cases, and second, this -- the role of Federal law in Merrell Dow is completely different than it was in this case and in the Hopkins line of cases. What was going on in Merrell Dow is that the State adopted a Federal standard as presumptive evidence of State law negligence, and when a State adopts a Federal standard into its own State law standard, the -- the action remains one that is fundamentally State law in character. So the Federal question in the case is not regarded as substantial. But here, the situation is entirely different.
04-603 +++$+++ 27202 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ We do occasionally review that kind of a decision here.
04-603 +++$+++ 27203 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You do, Mr. Chief Justice. And the Court in Merrell Dow drew a distinction between what is substantial enough of a Federal question to trigger arising-under jurisdiction as an original matter and what is substantial enough of a Federal question to obtain this Court's review. And we're dealing here just with the kind of substantiality that's necessary for original jurisdiction under 1331.
04-603 +++$+++ 27204 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I assume that a fact in a particular case which affects nobody else in the country, but which is determinative of the Federal question is never a substantial question of Federal law. Is it? So you -- you would not agree that -- that it's not only the -- the content, but also the application of Federal law that's --
04-603 +++$+++ 27205 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me draw a distinction between those cases where the cause of action is supplied by Federal law, in which case factual issues are resolved by Federal courts as long as there's a Federal cause of action and cases where there's not a Federal cause of action. Then you need -- the right to relief has to depend on a substantial question of Federal law. So if the only issue in the case, in that kind of case, is a factual dispute and everybody agrees on the law, then there's no substantial Federal question, no removal jurisdiction. But if the right to relief depends on Federal law and the meaning of Federal law and there's also a factual issue in the case, that would be removable.
04-603 +++$+++ 27206 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If there were only a dispute about when the notice was given and not a factual dispute, then it would not have been removable I take it.
04-603 +++$+++ 27207 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's -- it's removable if the only question was whether notice was given. But if the question is was sufficient notice given such as to transfer title under Federal law, then that's removable.
04-603 +++$+++ 27208 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, that's a very -- sliced baloney very thin. (Laughter.)
04-603 +++$+++ 27209 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Mr. Chief Justice, that slices the baloney the way this Court's cases have sliced the baloney, and that -- the rule is that there has to be a substantial question of Federal law. There is one when the action depends on the meaning of Federal law, but not one where everybody agrees on the meaning of Federal law and all that's at issue is a dispute about the facts. Now, this case, as I said, does fall within the Hopkins line of cases, and in each of those cases, the Court held there was arising-under jurisdiction in a quiet title action where the plaintiff's claim that it had superior title to the land in question depended on the meaning of Federal law. And, of course, that's true here. The quiet title action provides the mechanism for review of this question, but the question is entirely one of Federal law as to who has the superior interest in the land, the tax sale purchaser or the taxpayer. If the Court has no further questions.
04-603 +++$+++ 27210 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Gornstein. Mr. Zagrans, you have 4 minutes remaining.
04-603 +++$+++ 27212 +++$+++ FALSE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. We agree with General Gornstein's statement of the test. The test is a State cause of action that necessarily depends on a substantial question of Federal law arises under for 1331 purposes. The difference between my argument and the argument of respondent is the meaning of substantial or what constitutes substantiality. And in Merrell Dow, the Court held for all Federal statutory purposes the Federal law is not substantial enough to confer arising-under jurisdiction unless Congress created a private remedy along with the statute. That's where we part company.
04-603 +++$+++ 27213 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Zagrans, there is language in Merrell Dow that makes it sound like it's not as clear and certain as you are urging. I think that the opinion author said that 1331's domain is shaped by the demands of reason and coherence, dictates of sound judicial policy, and common sense. And if you just take that last question when the only question is, is mail notice good enough to satisfy the Federal statute, or do you have to have in-hand service? Doesn't common sense say what that section means should be a Federal question, appropriate for a Federal court to decide?
04-603 +++$+++ 27214 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree, Justice Ginsburg, is -- it is a Federal question as a common sense matter and every other way. It does not follow that it should be decided and adjudicated by a Federal court. State courts can and do --
04-603 +++$+++ 27215 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm simply making the point that you are reading Merrill Lynch -- Merrell Dow in a rather rigid way. And yet, there is this language in it that says in -- in -- what was before the Court in Merrell Dow made perfectly good sense in that tort action to have it going on in State court. This is quite a different picture.
04-603 +++$+++ 27216 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think, Your Honor, that Merrell Dow's emphasis on making pragmatic, sensitive judgments, judgments that are both principled and common sense, dictated the holding in that case which was when it's an act of Congress that is being inserted as an element of a State law claim, in order then to bootstrap that State law claim into Federal court on removal jurisdiction, there would need to be a substantial Federal question. Who decides that? Congress decides that, both as a matter of judicial power and as a matter of common sense application. And that's the distinction, by the way, with the Hopkins line of cases. I don't believe that the Hopkins line is any different from the Smith v. Kansas City Title & Trust line in terms of this emphasis on necessarily depending on a substantial question of Federal law. The difference in Hopkins is that those were competing Federal land claims. The only thing in the case was Federal law. Both sides took their entitlement to the property from Federal mining law, and the Federal issues in that case either were exclusive of all the legal issues or so overwhelmingly predominated over the State law issues, that that was the result in those cases.
04-603 +++$+++ 27217 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought that there was no State law issue in this case, that the whole thing turned on what kind of notion -- notice was sufficient to convey title.
04-603 +++$+++ 27218 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are many State law issues in this case, Your Honor, in terms of the State quiet title action. The only disputed issue and the issue that the respondent says the State law claim necessarily depends for its resolution is this disputed issue of Federal law over the notice.
04-603 +++$+++ 27219 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Zagrans.
04-603 +++$+++ 27220 +++$+++ TRUE +++$+++ MR. ZAGRANS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-603 +++$+++ 27221 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The case is submitted.
04-607 +++$+++ 27225 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument in number 04-607, Laboratory Corporation of America against Metabolite Laboratories. Mr. Franklin, whenever you're ready, you may proceed.
04-607 +++$+++ 27227 +++$+++ FALSE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: The patent claim at issue in this case was held to be infringed whenever any doctor looks at a homocysteine test result and reflexively thinks about a basic natural correlation. The result has been multimillion dollar damages and an injunction prohibiting a testing company from conducting important homocysteine tests by any method and for any reason whatsoever. As broadly construed by the Federal Circuit, this claim is invalid as a matter of law for two closely related reasons. It contravenes both of this Court's settled proscription against effectively patenting laws of nature or natural phenomena as well as the requirement that a patent must fully and clearly describe, disclose and enable an actual invention and must not sweep so far as to encompass more than what was actually invented.
04-607 +++$+++ 27228 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is that second point -- is that second point definiteness?
04-607 +++$+++ 27229 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The second point is definiteness, it's enablement.
04-607 +++$+++ 27230 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does definiteness describe this second aspect that you've just --
04-607 +++$+++ 27231 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It describes part of it, Your Honor.
04-607 +++$+++ 27232 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Just part of it.
04-607 +++$+++ 27233 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is definiteness, there is enablement, there is written description. We think all of those are contravened here.
04-607 +++$+++ 27234 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let's examine them. What if it definitely goes so far as to allow no other use of this natural law that it's discovered? It definitely goes that far, isn't definiteness fully satisfied?
04-607 +++$+++ 27235 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think not, Your Honor, because --
04-607 +++$+++ 27236 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No?
04-607 +++$+++ 27237 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- definiteness would still require that you distinctly claim an invention here and that's one of the things that's absent in this case. But even moving beyond that, Your Honor --
04-607 +++$+++ 27238 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's indefinite because we don't know where our thoughts will take us? Suppose there a patent which requires looking at the clouds in the sky for 10 minutes. I mean, that's maybe absurd, but it's certainly definite.
04-607 +++$+++ 27239 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, if it is definite, then it is certainly not enabling of an actual invention. And here the Morse case, which we have cited in our briefs, comes into play. In that case, the court held that Samuel Morse was entitled to patent his innovative telegraph but he couldn't go further to effectively patent the law of nature or natural phenomenon associated with it and thereby monopolize all manner of devices and processes that he did not invent and did not enable or describe.
04-607 +++$+++ 27240 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But wasn't the issue there what is patentable? I mean this case in the district court was under this definiteness idea, 112. 101 deals with what's patentable. And it seems to me that you -- this case was presented as a definiteness case.
04-607 +++$+++ 27241 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it was not just definiteness, Your Honor. It was section 112. But let me get to the Morse case because as we have explained in our reply brief and, in fact, in our opening brief, the Morse case was in fact decided under what is now section 112. The Court cited and quoted the relevant statute which has not changed in any material respect today. The Court made clear that the problem in that case, at page 120 of the opinion, was that Morse claims what he has not described in the manner required by law. And what we have here is the same situation. We have these patentees who are indisputably entitled to patent their innovative method for measuring homocysteine. And LabCorp continues to use that method sometimes and we pay royalties whenever we use that method. But what they couldn't do is what Samuel Morse tried to do and push the envelope, and try to effectively patent the natural phenomenon associated with all homocysteine tests and thereby gain a monopoly over just not the one that they invented, not just those that are in the prior art, which itself would be impermissible, but even yet to be invented assays. And here is the nub of this case. LabCorp has sought to use but has been penalized for using and is prevented from using a more efficient and cost-effective method for assaying homocysteine than the one that these patentees invented. The method that LabCorp seeks to use, which is the Abbott method, reduces the processing time for homocysteine tests down from what was up to 18 hours under the patentee's method down to a manner of minutes.
04-607 +++$+++ 27242 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is the Abbott test -- that's patented and you're paying royalties for that?
04-607 +++$+++ 27243 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Actually, I don't know, Your Honor. And, I just don't know whether it's patented but it is certainly not covered by their claims 1 through 12, which have never been -- well, the district court found that those claims didn't apply here, and that's not an issue. The Abbott method is different. It's an immunoassay. It is not the same kind of mass spectometry gas chromatograph method that they have described. It's much more efficient, it's much more cost-effective and the reason obviously that LabCorp wants to use that method is to more effectively serve patients and their doctors and to meet the burgeoning demand for homocysteine tests. But because these patentees have effectively claimed the patent on the natural correlation that's associated with all homocysteine tests, they have prevented LabCorp from using what the patent laws would seek to encourage, that is, a more cost-effective, innovative, different method, the kind of thing -- exactly the kind of thing that the Court was concerned about in Morse.
04-607 +++$+++ 27244 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The opinion of the Court of Appeals for the Federal Circuit in the appendix begins discussion of claim 13 about page 16a. Are there some, one or two sentences there or a paragraph that you can tell me is completely wrong?
04-607 +++$+++ 27245 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the Federal Circuit's --
04-607 +++$+++ 27246 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. You're asking us to reverse this court of appeals decision and I'm looking, and particularly with reference to claim 13, the one we're talking about, I assume, and I'm looking through pages, say, 16 and 21 to find something that's absolutely wrong.
04-607 +++$+++ 27247 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think what --
04-607 +++$+++ 27248 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You want me to tell the court of appeals, well, you can't do this. But where is it wrong?
04-607 +++$+++ 27249 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think where it's wrong, Your Honor, is that it proceeds from an assumption that is wrong in itself and that is --
04-607 +++$+++ 27250 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you can't point me to any particular sentence that -- that's absolutely wrong?
04-607 +++$+++ 27251 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that the argument in -- the Federal Circuit's decision is wrong in its enablement discussion, it's wrong in its written description discussion. I mean, just to take one, the written description posits that this is a valid written description because the inventors, as the Federal Circuit says in its opinion, possessed the correlating step. And I think what's wrong about that, Your Honor, is that nobody can possess the correlation. And that's the nub of this case.
04-607 +++$+++ 27252 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And where does it say this?
04-607 +++$+++ 27253 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, that is at page -- I believe it's at 17 of the appendix. Let me just make sure I've got the right -- and that was when it talks about --
04-607 +++$+++ 27254 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You see my point? I'm not sure what it is you want me to say went wrong, other than the fact that this patent is, should never have been granted to begin with but that wasn't raised.
04-607 +++$+++ 27255 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think it was raised, Your Honor. The validity issue was raised in the district court, it was raised on appeal. The district court had construed the patent as requiring -- and part of the district court's claim construction addressed the issue as to whether or not one could patent a law of nature or effectively patent a scientific idea. The district court said this patent must require something more, and that is at joint appendix page 60. It must require something more than simple existence of the relationship between homocysteine and vitamin deficiencies. And one of the places that the Federal Circuit did get it wrong, Your Honor, was in abandoning that limitation that the district court had imposed on the patent.
04-607 +++$+++ 27256 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I guess that --
04-607 +++$+++ 27257 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you're arguing now, as I understand it, that the reason you win on definiteness is that it sweeps in even as yet uninvented processes.
04-607 +++$+++ 27258 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-607 +++$+++ 27259 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it does so by means, in effect, of erecting this umbrella of a natural fact which is intended to cover every process that might be relevant to establishing that natural fact.
04-607 +++$+++ 27260 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-607 +++$+++ 27261 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that you're saying we cannot -- no court can decide definiteness in this situation without hitting the patentable issue.
04-607 +++$+++ 27262 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Your Honor. That's exactly what we're arguing. And that's where the Federal Circuit got it wrong. And we did in fact urge the Court --
04-607 +++$+++ 27263 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you told the -- you said, judge, if you in fact hold that this claim 13 satisfies section 112 and is sufficiently precise and specific and concise, if you hold that, then the claim would violate Morse?
04-607 +++$+++ 27264 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it would violate --
04-607 +++$+++ 27265 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you argued that specifically? And so your problem -- I guess that you said that. I mean, you quote it in your supplementary brief on page 6.
04-607 +++$+++ 27266 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We did say that. Yes.
04-607 +++$+++ 27267 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it's the language.
04-607 +++$+++ 27268 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-607 +++$+++ 27269 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's what it said. It didn't say Morse. It said Diehr.
04-607 +++$+++ 27270 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Diehr, which --
04-607 +++$+++ 27271 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Dier incorporates Morse.
04-607 +++$+++ 27272 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-607 +++$+++ 27273 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ As was my understanding.
04-607 +++$+++ 27274 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-607 +++$+++ 27275 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So your complaint about the paragraph on 17a is that it did not deal with that argument.
04-607 +++$+++ 27276 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-607 +++$+++ 27277 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I imagine they'll say that simply mentioning it in an oral argument is not enough to get us to think seriously about it.
04-607 +++$+++ 27278 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it was in the brief, Your Honor, and I think that it was also in, with the premise of everything that we argued, because the district court had already -- and again, I point the Court to joint appendix page 60. The district court had already held that it had to mean -- the patent had to mean something more than the simple relationship, the simple existence of the relationship between elevated homocysteine and vitamin deficiencies. And the premise of the entire Federal Circuit argument and, in fact, to the arguments below was that we don't know what that anything is, because the patent doesn't tell you. The Federal Circuit blew past that, Your Honor, and what the Federal Circuit said, which makes the issue front and center now, is the Federal Circuit said, and this is at 18a. "The correlating step is a simple conclusion that a cobalamin/folate deficiency exists vel non based on the assaying step." And what that means is now, as a result of the Federal Circuit's decision, unlike the district court's decision, we now know that every homocysteine test automatically infringes because every doctor will reflexively look at it and think about the phenomenon associated with it.
04-607 +++$+++ 27279 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You set off the district court and the court of appeals but you don't think the district court got it right, either. You said the district court required something more.
04-607 +++$+++ 27280 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-607 +++$+++ 27281 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What was the something more and why wasn't that adequate?
04-607 +++$+++ 27282 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't know and that's why it wasn't adequate. That's why we had always argued under indefiniteness and under enablement, under written description. We had no idea. The patent doesn't tell you. We suggested one way. That wasn't -- the Federal Circuit didn't agree with us. The problem with the district court's -- we agreed with the district court's claim construction. That far, we did. But then there was nothing more even adduced at trial, and this was the argument we consistently made. The Federal Circuit then abandoned what the district court did and then we here have it front and center with the patent --
04-607 +++$+++ 27283 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What the district court did is it got, it tried this case and it got a rather large jury verdict.
04-607 +++$+++ 27284 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-607 +++$+++ 27285 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And I don't understand how you're setting off the district court from the court of appeals when the court of appeals, whatever it said, it affirmed the judgment of the district court.
04-607 +++$+++ 27286 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It did, but the claim construction is the part of what I'm talking about. At page 60, I'll just read what the district court said. "Correlating is a verb and must mean more than the simple existence of a relationship between a high level homocysteine and deficiency in cobalamin or folate." The Federal Circuit's opinion is contrary to that, Your Honor, and that's where this whole issue gets put front and center now. And what we have here under the Federal Circuit's extraordinarily broad construction is we have nothing more than the reflexive mental recognition of a natural correlation preceded by the inherent and generic step of somehow ascertaining the input for that correlation.
04-607 +++$+++ 27287 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I could see how that broad interpretation would raise perhaps for the -- clearly raise for the first time the section 101 issue. But, so that should have been clear to you by the time the court of appeals decision came out, right? But did you, in your petition here, rely on 101?
04-607 +++$+++ 27288 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we relied, Your Honor, on all of -- many, many cases in court interpreting that provision and others under the law of nature doctrine --
04-607 +++$+++ 27289 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You never mentioned 101, though, did you?
04-607 +++$+++ 27290 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We didn't but just as an example, Your Honor. The court's invitation or, to the solicitor general didn't mention 101, but everybody knew what the court was talking about. And let me just -- the petition couldn't have raised -- the petition squarely raised the issue. On page 18, we cited Diamond versus Diehr, Benson, Funk Brothers, Mackay Radio and the Le Roy case from 1852. On page 26, we cited, quoted, relied on Funk Brothers and Mackay Radio again. Page 27 refers back to the authorities at page 18 of the petition. Page 28 states that under the Federal Circuit's holding, anyone who claims to be the first to discover scientific correlation could patent it simply by drafting the vague test plus correlate claim. This issue was presented in the petition. It is within the question presented. And, Your Honor, I think that the issue is easy to resolve given the Federal Circuit's broad construction. Under that construction, again, there is nothing more than the recognition of the natural phenomenon preceded by what is the inherent step in any natural correlation of ascertaining the input. And as we have said without contradiction in the opening brief, if this patent is valid, then anyone can gain a patent over a scientific correlation by doing this kind of artful drafting. Einstein could have patented E=MC2 which this Court has stated on more than one occasion could not be patented simply by doing a test plus correlate. To take another hypothetical that was stated in the opening brief without contradiction, if I discover tomorrow a new correlation between having a certain kind of blood type and a medical condition that heretofore people do not know about, I could run down to the Patent Office, patent that correlation and the effect of that would be to monopolize all blood typing, no matter whether it's done through methods in the prior art or methods yet to be developed.
04-607 +++$+++ 27291 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is it true as the Respondents argue that a holding in your favor would call into question thousands of patents?
04-607 +++$+++ 27292 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they don't mention all -- the number but I don't think it would call into question a huge swath of patents. It would call into question patents that are like this one, obviously, things that are simply test plus correlate.
04-607 +++$+++ 27293 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And do you have any idea how many there are of those?
04-607 +++$+++ 27294 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. You would have to do an exhaustive search. There are some and I believe that some of the ones that the Respondents cite, some of the claims -- and let's distinguish between patents and claims here, because it might invalidate some claims in some patents, which is not unusual because patent drafters often push the envelope. They patent this -- in this case, they have indisputably unchallenged and valid patent claims for a method of measuring homocysteine, but they went further in claim 13. And to the extent there are other patents that might have those kind of claims, yes. But to the extent we're talking about the broader swath of patents dealing with things like genes, no.
04-607 +++$+++ 27295 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if that's -- if there is some likelihood or possibility of this that we should assess, it seems to me that it's imprudent for us to discuss it here when it hasn't been discussed in the court of appeals.
04-607 +++$+++ 27296 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think, well, it was, again, it was pressed in the court of appeals. But again, what we're talking about is deciding this case on its facts and obviously to the extent there are other patents that are just like this one, and the court has addressed this in the context of Flook and Diehr and has distinguished between those patents which facially looked rather similar but the court was able to draw the distinctions. The Federal Circuit can draw the distinctions. But if it is a patent that is simply like this one, which claims nothing more than a natural correlation preceded by the inherent step of ascertaining the input, no court, to my knowledge, has ever upheld such a patent before this case.
04-607 +++$+++ 27297 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're urging on us something like plain error, is about what you're telling us.
04-607 +++$+++ 27298 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I think that we're urging the Court to examine the case that it has before it, look at the patent and we're not asking the Court to go further than this patent. Look at this patent, look at the Federal Circuit's construction and that's something that we will take as a given for purposes of today's proceeding.
04-607 +++$+++ 27299 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're saying this patent, you really mean just claim 13, don't you?
04-607 +++$+++ 27300 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm -- excuse me, Justice. And again, I wanted, as I was saying to Justice Alito, you do need to distinguish between patents and claims. And claim 13 is the only claim that's been asserted here. It's the only claim that's being challenged. And let me just --
04-607 +++$+++ 27301 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why shouldn't we do what the Solicitor General proposed, that is, since we don't know for sure, at least I don't know for sure, I'm not enough of a scientist --
04-607 +++$+++ 27302 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-607 +++$+++ 27303 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- whether in fact the section 112 determination, as made by the Federal court, excludes all other possible use of this natural phenomenon. Since I don't know that for sure, why shouldn't I tell the Federal Circuit, you know, your definition of correlate raises this issue and you should resolve whether it is true that there is no other possible usefulness for this, no substantial usefulness?
04-607 +++$+++ 27304 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Quite simply, Your Honor, it's because the Court doesn't need to reach that issue and didn't need to reach it in any of its prior cases save one and that's the Benson case where that issue came up really in one sentence of the opinion. In the Morse case, in the Funk Brothers case, in the Flook case, all of those patents had -- were limited to a particular use. Just take Morse's patent which was limited to just conveying information at a distance through electromagnetism. That was actually one very small sliver of what you can do with electromagnetism. In fact, very, very small. And the Court said, no, it doesn't matter. Where what you have is effectively the patent on the correlation, it doesn't matter whether you've limited it to one use or many uses. So if the Court --
04-607 +++$+++ 27305 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
04-607 +++$+++ 27306 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- so I don't think the Court needs to get into that. In Diehr, the Court made that explicit that a field of use -- limiting a patent to a field of use is not going to save that patent from invalidity. Now, if the Court does examine the issue, it ought to do it the way it did it in Benson just by looking at the broad sweep here. And how I would use it, Your Honor, would be to say that in addition to all of the other problems that this patent, as construed by the Federal Circuit, has, it also has an extraordinarily broad pre-emptive sweep. It applies to any homocysteine test, no matter how it's done, no matter what reason it's done, no matter if it's in the prior art, no matter if I invent it tomorrow. It applies to any act of even looking at the test. And here it's not just doctors. If anyone in the audience today learns about this correlation because of this argument, if they're listening carefully, and then they go to their doctor and ask for a test, they will, number one, be inducing infringement; number two, if they look at the test result, now being armed with what we have given them, which is the scientific knowledge that the correlation exists, they will infringe. And there was testimony in trial to that effect. So I don't think the Court needs to get into the inquiry, and I don't think the Patent Office really wants to get into that inquiry either. To have to look at each patent application to determine not just based on what's in it whether it's valid but whether there are other uses not even invented yet that might not be covered. That's not, I submit, what the Patent Office would like to do. If I might reserve the remainder of my time.
04-607 +++$+++ 27307 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You may, Mr. Franklin. I think Mr. Hungar is next, Mr. Estrada.
04-607 +++$+++ 27308 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, sorry, Justice Stevens.
04-607 +++$+++ 27309 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're too hungry, Mr. Estrada.
04-607 +++$+++ 27310 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Hungar.
04-607 +++$+++ 27312 +++$+++ FALSE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Thank you, Justice Stevens, and may it please the Court: Claim 13 satisfies the written description, enablement and definiteness requirements of section 112 of the patent act. The patent specification sets forth the scope and nature of the claimed invention in terms readily understandable by a person of ordinary skill in the art and it enables such persons to practice the claimed invention.
04-607 +++$+++ 27313 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ So you agree or you submit that you can have a definite description of something that's unpatentable because it's too broad?
04-607 +++$+++ 27314 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Well, that obviously assumes the conclusion, Your Honor. But with respect to the definiteness requirement, the challenge seems to be that because the first step of claim 13 is not limited to a particular type of assay but instead claims all assays, that that somehow renders it indefinite, and that argument is simply incorrect as this Court has recognized for over a hundred years. In the Cochrane against Deener case, for example, the Court addressed that question where a process claim was not limited to a particular method of performing a particular step of the process, and the Court said quote, "A process may be patentable irrespective of the particular form of the instrumentalities used", closed quote. And the Court reiterated that principle in the Diehr case.
04-607 +++$+++ 27315 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ But, but, but -- well, let's assume that there is a claim that includes something that should not be patentable, because it's too broad or it involves the scientific phenomena, the mechanics of the universe. Can a patent still be definite if it includes that sort of unpatentable claim?
04-607 +++$+++ 27316 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ It can be. It might or might not be depending on the circumstances. The Morse case is an example where it was both indefinite and invalid because trying to claim a principle of nature, in effect. But by the same token you can easily have, and in fact you have here, a claim where it's definite in that persons of ordinary skill in the art understand the scope of the claims. They know what is and is not within the scope of the patent, which is, in this case, a question entirely separate from the question whether, as construed by the Court and as understood by the person of ordinary skill in the art, it's valid, under section 101, that is, under the scope of patentable subject matter.
04-607 +++$+++ 27317 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ What do you think about its validity under 101?
04-607 +++$+++ 27318 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Your Honor, as we suggested in our brief, we don't think that that question is properly before the Court but that --
04-607 +++$+++ 27319 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ I understand, but I didn't ask you what you said in your brief.
04-607 +++$+++ 27320 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Yes, Your Honor. But that if the Court were to reach that question, we think that while it's unclear because the issue wasn't litigated, there appears to be prima facie evidence of invalidity under Benson, this Court's decision in Benson, because, given what we currently know, it appears that the claim as construed by the court of appeals preempts all substantial practical applications of the correlation. But because that issue wasn't litigated below, if the Court were to reach it, it should remand --
04-607 +++$+++ 27321 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ To you read the the patent as -- talking about step 1, you can use any assay method you want. It doesn't have to be patented. But the correlation, step 2, that any time you ask a doctor to tell us what you think the results of the test mean, that that's an infringement?
04-607 +++$+++ 27322 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ That's how the court of appeals construed it, yes, Your Honor. I'm sorry. Is that --
04-607 +++$+++ 27323 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ And is it possible that that can be patentable, in your view?
04-607 +++$+++ 27324 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Well, again, Your Honor, we --
04-607 +++$+++ 27325 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ If you just go to the doctor and ask for advice and he says, yes, I've looked at the results; you've got a vitamin B deficiency or whatever it is --
04-607 +++$+++ 27326 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ As we indicated --
04-607 +++$+++ 27327 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ -- he's committed infringement under this patent as I understand it.
04-607 +++$+++ 27328 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ As we indicated in our brief, we think that raises a potentially serious pre-emption problem and it also raises the anticipation problem, that is, the section 102 argument which is not before the Court but if it were litigated --
04-607 +++$+++ 27329 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ It would raise the -- just do you think that that patent is valid? That's what I'm trying to ask you.
04-607 +++$+++ 27330 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Well, we think it has validity problems under section 102 and also under the pre-emption, -- potentially under the pre-emption doctrine. We haven't addressed the other issues that Petitioner seeks to put before the Court involving Diehr and Flook, both because -- well, actually for four reasons. First of all, it wasn't pressed or passed upon below, it wasn't -- it's not fairly included within the question presented, which construed at its most broad, broadly, includes only the monopolization issue --
04-607 +++$+++ 27331 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ I know all that. I'm just really interested in your view of the patent. That's what I'm trying to get to.
04-607 +++$+++ 27332 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Yes, Your Honor. And as I've said, we've identified two areas in which we think there are potentially problems if they were in front of the Court.
04-607 +++$+++ 27333 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ Do you think there is a 101 problem too?
04-607 +++$+++ 27334 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ The preemption issue is a 101 problem, Your Honor. We haven't addressed -- as I said, we have not taken a position on the broader section 101 issues and we would urge the Court not to do so as well, in a case in which it wasn't presented below, the Court doesn't have the benefit of the lower court's assessment of that question. And given that that question implicates substantial reliance interests and --
04-607 +++$+++ 27335 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ So we do have a fairly long discussion by the lower court on the infringement issue. In order to find infringement, they had to construe correlation.
04-607 +++$+++ 27336 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Yes, Your Honor.
04-607 +++$+++ 27337 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ Yes.
04-607 +++$+++ 27338 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ But the Court didn't grant certiorari on that question. Yes.
04-607 +++$+++ 27339 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ I didn't understand the definiteness doctrine. I mean, all these things in 1854 I guess weren't so clear. But I think the precise claim in Samuel Morse's case was the use of the motive power of the electric current for making or printing intelligible characters. That sounds absolutely definite. Anyone can understand it. I thought the problem there was that although anyone can understand it, you can't claim something as broad as that. You must intend to claim something narrower. And insofar as it's narrower, it isn't precise. So insofar as it's broad, it's too broad, but definite. And insofar as it's narrow, it's not there, but indefinite. Okay? Precisely the claim that they raised before the Federal Circuit and precisely the claim -- with appropriate citations, and precisely the claim in respect to which the Federal Circuit said nothing.
04-607 +++$+++ 27340 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Your Honor, I may have misspoken before but I think it's probably most accurate to read the Morse case as dealing with a written specification problem, that is, the specification in claim 8, the one Your Honor is referring to, didn't tell anything about the method by which the principle of nature, electromagnetism, would be used. All it did is describe a result, and it purported to claim any, any method involving any number of steps that any inventor might ever invent in the future, even if those steps had nothing to do with -- if there was not a single overlapping step between that new process and Morse's process.
04-607 +++$+++ 27341 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ Yes. And we here apply the correlation to any homocysteine test, any one here, any one in the future, any one that any mind might impend. What's the difference?
04-607 +++$+++ 27342 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Well, the difference is between claiming a -- claiming all methods of achieving a particular result and claiming one process for achieving that particular result and then as one claiming any means of doing one particular step of that process.
04-607 +++$+++ 27343 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ I apply electricity to all methods of putting down letters with electricity. I apply the correlation to all methods of creating a homocysteine test.
04-607 +++$+++ 27344 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Well, again, Your Honor, if it is true that all methods of employing the assay -- excuse me, all methods of employing the correlation are preempted by this patent claim, then it would be invalid under section 101. But to the extent the argument is an attempt to go beyond that issue, we submit Morse doesn't support it and indeed this Court's decision's in --
04-607 +++$+++ 27345 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ Oh, no, I'm not talking about going beyond it. I just thought that line between definiteness and 101, 112, 101 is not quite so clear as I would have thought, because it sounds to me relying on the 1854 case of Samuel F. B. Morse, they're making the same kind of argument and, indeed, you translated Morse as a definiteness 112 argument, and yet it seemed to me that's the kind of argument they're making.
04-607 +++$+++ 27346 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Yes, Your Honor. And I think it is more properly understood as a specification problem because, as you say, anyone can understand the scope of that claim. It's just that it was not sufficiently described because he was purporting to claim any process even if it had nothing to do with the process he had invented, and that's not what's happening here. They claim a particular step, that is, do an assay, as opposed to some other method, and they claim any method of doing that assay within step 1 of the overall claim but they aren't saying -- for instance the analogy would be if they had claimed we've just devised one particular method of determining whether someone has a vitamin deficiency and we therefore claim all other methods of determining whether someone has a vitamin deficiency.
04-607 +++$+++ 27347 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ Okay, I think you've hit what is the problem for us. When you use the word assay, you assume that that is excluding certain processes. And that's not clear to me. Would you explain that in greater detail?
04-607 +++$+++ 27348 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Well, again, we don't know --
04-607 +++$+++ 27349 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ I thought an assay was in effect synonymous with any process that gets the relevant data and you're using it in a more -- I think, in answering Justice Breyer's question, you were using it in a narrower sense.
04-607 +++$+++ 27350 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Well, I think that, as understood by a person having ordinary skill in the art, we -- it may be. We don't know because the issue wasn't litigated.
04-607 +++$+++ 27351 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ But I thought that was the point of your argument, that there are assays and then there are other methods. Did I misunderstand you?
04-607 +++$+++ 27352 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Well, no. Certainly it's conceivable that there are other methods and indeed the patent claim -- the patent specification refers to -- or suggests the possibility of assaying tissue as opposed to fluid. The claim is limited to fluid. I thank the Court.
04-607 +++$+++ 27353 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ Thank you, Mr. Hungar. Mr. Estrada, it's your turn now.
04-607 +++$+++ 27355 +++$+++ FALSE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Stevens. Thank you, Justice Stevens, and may it please the Court: This was a hard fought jury trial in which the jury rejected everything LabCorp had to sell. That judgment should be affirmed for three reasons. The first is LabCorp never asked the trial judge or the Federal Circuit to declare this patent invalid under section 101, which is an affirmative defense they had to plead in the answer and prove by clear and convincing evidence. Second, they're simply wrong on the merits of the 101 case under this Court's cases. And third, you can search their brief in vain for a workable test for patentable subject matter that would invalidate this patent and not bring complete havoc to the patent world by calling into question numerous diagnostic tests in medicine and otherwise, pharmaceuticals and other inventions. Let me deal briefly with the waiver question because we don't get a sur-reply brief and there is a lot in the reply brief that I wish I could deal with at length. But I think I will say that it is a collection of cropped quotes and very inventive characterizations of the record. I will give you just two examples. Bottom of page 9, they're trying to get out of their Unitherm problem, never having this raised in the answer or in the rule 50. And the footnote at the bottom of the page discusses the rule 50 and states or at least suggests that this argument in terms was raised before the trial court, concluding with the sentence, "Respondents themselves understood LabCorp to have thereby presented subject matter patentability." They cite to our brief on JMOL. I have that here. This is what we said. "The quick answer to LabCorp's mental steps theme is that LabCorp never pled it in the defense. LabCorp pled invalidity on the basis of 102, 103, 112 on the grounds that the patent was anticipated, obvious, indefinite, non-enabled and procured by inequitable conduct. But the so-called mental steps doctrine goes instead to the question whether patent covers statutory subject matter. That is governed exclusively by section 1, 101. LabCorp has never mentioned that section and has never pled the patent is invalid for covering non-statutory subject matter even, in its present JMOL motion. Footnote: LabCorp failed to assert invalidity on the basis of non-statutory subject matter in any of its five answers or counterclaims or in any of its interrogatory responses. None of its experts, including its patent law expert, made any such assertion in any reports or testimony. That gets translated in the reply brief as we understood this issue was in front of the court. Now, we made that point in our papers. There was no response saying, no, wait, district judge, this isn't the case. Rule on section 101. Not a word. We had the same exchange in the Federal Circuit and, once again, we pointed out this was 101, had been waived six ways from Sunday. Not a response telling the Federal Circuit, this isn't the case, please rule. And this is important because you're being asked to tell trial court and three courts of appeals judges that they committed reversible error for failing to address a question that nobody ever asked them.
04-607 +++$+++ 27356 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now what do you say in response to my question to the Solicitor General?
04-607 +++$+++ 27357 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Which question, Justice Breyer? I'm sorry.
04-607 +++$+++ 27358 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That they thought it was obvious, that they thought that obviously the problem here with this particular claim is that it doesn't say specifically which tests this principle is meant to apply to. So it isn't definite enough. It never occurred to anyone that if you tried to apply it to every test, it was somehow a valid patent, so they made it in the definitive context. Because for 154 years, it's been clear that you can't take a principle of nature like electricity and simply make a claim for all uses of electricity to create letters. That's their analogy. And they thought by referring to the cases and by referring to the failure to point out definitely what the tests were this applied to, it violated 112 because otherwise, it wouldn't be a valid patent, which everyone in the patent field would know. That's at least, I think, what they're saying.
04-607 +++$+++ 27359 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it is wrong on the facts and on the law. If it was obvious all along this is an affirmative defense under section 282 of the patent code, that must be pleaded. One certainly can't be excused for failing to plead something that, dare I say, is obvious. But let's deal with the Morse case. Mr. Franklin said it's the same statute at the time. Actually, that is not so. At the time Morse was decided, section 112 and 101 were both together in section 6 of the 1836 patent act. In 1870, Congress broke that off. That's important because in Diehr, this Court considered a similar issue with respect to the novelty requirement and concluded that once Congress consciously wrote the novelty requirement out of section 101, it was inappropriate to inject, you know, the novelty considerations into section 101. The second answer to the Morse question, Justice Breyer, is that the test for definiteness is not is this definite in the abstract, but is it really too broad in relation to the inventive contribution as disclosed in the specifications. And the contrast here that is important to keep in mind is between Morse in 1854 and Alexander Graham Bell, claim 5 of that patent. Just to set it up, in the Morse case, claim 8, it had been known for many years that it was possible to transmit using the electromagnetic current but nobody knew how. And in fact, this Court's ruling on page 107 says this was known by men of science everywhere. And the problem was that Morse discovered one particular way to transmit characters at a distance and tried to patent everything that everybody might ever discover using whatever means to print at a distance. Alexander Graham Bell is a good contrast. Claim 5. It was also known that you could use the electronic current to transmit voice. People had tried and tried and tried and, in fact, there was somebody in Germany who successfully transmitted music but not words. This is all in -- in the Court's opinion. Now, Graham Bell discovered that the key was to use continuous undulations in current. Continuous undulations, not discontinuous undulations. And had a patent claim, claim 5, which was very broad. All users of continuous undulations to transmit voice or sound. The Court said that's absolutely right, because he was not trying to claim beyond his inventive contribution to the art. Now, Drs. Stabler and Allen in this case discovered something very important which is all of the medical tests that existed in the art as late as the 1880s -- the 1980s were wrong. People were horribly misdiagnosed. And there was a test that existed but nobody used. This is what the record was. The test for existing homocysteine was almost never used, as Dr. Allen testified to this. There is evidence in the record. This is why we have jury trials. And what happened was this test was solely for attempting to diagnose inherited enzyme defects. This is rare. Nobody used it. There was not a market for it. As a result of the discovery, the medical community came around and concluded that everything they were doing was wrong and the new test combining the knowledge that it was possible to assay for homocysteine -- and by the way, the assaying means only measuring -- total homocysteine with the discovery of the correlation could be put together, as Diehr allows, to come up with a better diagnostic test. And at the time, obviously, and this is, again, in the trial testimony, no market for this. Nobody wanted to do it. Everybody was just delighted with the existing tests. And so Dr. Allen and Dr. Stabler had to set up their own lab to do it. It was after the medical community came around that all of the lab companies became interested in doing this commercially. And I go into this level of detail because I think it is in part needed to answer the point made by the Solicitor General. In a world in which there was no commercial use for the existing prior art because it was used rarely, and a market develops solely as a result of people using the test to practice the invention, I think it's analytically incorrect to say that we're trying to monopolize the existing prior art. What has happened is commercial laboratory companies like LabCorp are selling the test to practice our invention. It was open to them to say --
04-607 +++$+++ 27360 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but let me just interrupt. The -- as I understand it, the alleged infringers don't use the same novel process that you use in your assay, in other words, step 1. They do not use the step 1 in claim 13, is that correct?
04-607 +++$+++ 27361 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our -- yes and no. I think there is an ambiguity in the question, Justice Stevens, because it is true that the Abbott method --
04-607 +++$+++ 27362 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, assume it's not Abbott. Just say I come up with a novel method that's not covered by the patent that I can get the assay results. And say a doctor says, would you test the blood under your unpatented, novel method and tell me what the results are?
04-607 +++$+++ 27363 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right.
04-607 +++$+++ 27364 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And now if I do that and then the doctor looks at it and says I think you've got a vitamin B deficiency, has he infringed your patent?
04-607 +++$+++ 27365 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the test was not ordered for the purpose of diagnosing --
04-607 +++$+++ 27366 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It was ordered for the purpose of letting the doctor know exactly what the assay would be. Yes.
04-607 +++$+++ 27367 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, unless --
04-607 +++$+++ 27368 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He hasn't --
04-607 +++$+++ 27369 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- there was a purpose for diagnosing the deficiency, I would say no. And while we're on the subject of engaging what our arguments have been all along, we made clear in our brief, and nobody ever responded, at page 38, that claim 13 is only infringed when the assaying and the correlating steps are both performed sequentially for the purpose of diagnosing vitamin B deficiency.
04-607 +++$+++ 27370 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, a doctor asked me to perform under my -- my own method, step 1, which I do it and I give him the results and then he tells the patient, I think you've got a vitamin B deficiency, in that case, he has infringed, if I understand your argument.
04-607 +++$+++ 27371 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If he did it for the purposes of trying to determine whether you had a vitamin deficiency. Now, if he did it for the purpose of trying to determine, as in the prior art, whether you had an inherited enzyme condition, that would not be infringing. And this point was addressed, obviously somewhat indirectly because it was never raised in the court of appeals, by the Federal Circuit at page 9a and 10a where the Federal Circuit explained the correlating step was included as a limit for the intended use of the test as a means to distinguish the intended use for this test from the prior art.
04-607 +++$+++ 27372 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're onto something, to me, that is absolutely fundamental. You have millions of doctors and scientists and computer people who are working extremely hard to think of useful ideas and if you don't give them an incentive, they may think of less.
04-607 +++$+++ 27373 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-607 +++$+++ 27374 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And they're all useful. At the same time, if you patent all of their ideas, including very useful mini-micro principle ideas, you will establish monopolies throughout this country beyond belief and it will be difficult for people, without paying vast amounts of money, to use their useful ideas. So what principle do we use to separate the scientific idea which can't be patented from the process which can be? I thought that the claim was settled by Morse, Flook and Diehr. Now would it make sense -- you can answer any part of this question you want.
04-607 +++$+++ 27375 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right. Let me --
04-607 +++$+++ 27376 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would it make sense to send this back and say, look, at least address their argument? You can answer any part of that.
04-607 +++$+++ 27377 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Three answers. Number one, under the patent laws, everybody -- anybody who makes, uses or sells the invention is potentially liable as an infringer. Number two, Congress knows this and it knows that the people who might be liable as infringers are doctors. It passed in 1996 section 287(c) of the patent law that gives doctors a defense to infringement for certain things they do in their offices, not this one. So Congress is perfectly aware of all of the policy issues being raised and has chosen to give an answer only so far. The third is it is a fundamental misconception to treat the case as though, even if the section 101 issue is in front of the Court -- and it isn't -- whether the issue is whether section 101 means that something is actually patentable as opposed to what Diehr said, which is, is it possibly patentable. This is subject matter patentability. Is the mouth of the funnel, not the end of the funnel, and all of the outlandish hypotheticals that we have to deal about how this could be patented don't really deal with the reality of the patent code, which is this is the intake funnel. We have doctrines of obviousness, anticipation, 112, many other things, all of which were raised at trial and the jury rejected in this case. But the reason why there may be some superficial appeal to the outlandish hypotheticals, Justice Breyer, is because there is an effort to confuse the issue that they're trying to smuggle belatedly into the case, 101, as though it dealt with whether something is actually patentable as opposed to potentially patentable. And on the latter question, whether something is potentially patentable, we have the extremely broad language of section 101 coupled by this Court's cases, in Chakrabarty and Diehr, which said that what Congress intended is for anything under the sun made by man to be potentially patentable. And if there is some more precise policy issue why a particular invention ought not to be patentable, it is found in section 102, 103, 112, other parts of the patent code, on which they lost in front of the jury.
04-607 +++$+++ 27378 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What was made by man here? What was made by man here? I mean, if you're talking about the type of assay that your client developed, which was involved in other claims, not in 13, then I'd say, yes, that was made by man. But here, what 13 involves is simply discovery of the natural principle that when one, when there is the presence of one substance in a human being, there is a deficiency of two other ones. That's just a natural principle. What's made by man about that?
04-607 +++$+++ 27379 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- we don't contend that the second step of the correlation is independently patentable even though the argument is framed as a -- argument. What we contend is patentable and what's allowed by Diehr is the inventive spark of putting together the discovery of the correlation with a way found elsewhere to measure these important bodily chemicals to produce a diagnostic test.
04-607 +++$+++ 27380 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ A way found elsewhere if indeed the Federal Circuit had determined the second step, you know, step 1, do the assay, step 2, correlate. If the Federal Circuit had said, oh, that requires your using a scale to see how much of one there is and how little of the other, but this Federal Circuit says, all correlate means is be aware of the fact that when one substance is high, the other two are going to be low. That's all it means.
04-607 +++$+++ 27381 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's unfair to the Federal Circuit on two points. Number one, it was very clear to the Federal Circuit, and in fact I think they said that, I can't put my hand on the page, where they said, there is no issue here about step number one. All that people are fighting about is the correlating step and what it means. And the problem that LabCorp had in the Federal Circuit with respect to the correlating step, which is a question they tried to bring up and was cert denied, is that they proposed in the district court the definition that was used by the Federal Circuit, which is a mutual or reciprocal relationship between an elevated level and the vitamin. And so having proposed that, it actually makes sense as a diagnostic test, as the Federal Circuit pointed out with the example of the pregnancy test. Now, Justice Scalia, you asked a question earlier --
04-607 +++$+++ 27382 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, please don't get off it -- because this is my biggest problem with the case. I agree that what you've said is simply a statement of the natural phenomenon, that when the one substance is high, the other two are low. And simply to be aware of that natural phenomenon is all that correlation consists of.
04-607 +++$+++ 27383 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it is true but is not necessarily the case that being aware of a natural phenomenon or of a correlation leads you inevitably to an inventive diagnostic test. There is a correlation between being tall and being -- you know, between height and weight. If I tell you that somebody's coming to visit you who is 250 pounds, that person is probably not a five year-old. But that gets me nowhere in terms of turning that into useful knowledge that could be patentable.
04-607 +++$+++ 27384 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you do agree, do you not, that step 2 by itself would not be patentable?
04-607 +++$+++ 27385 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do agree with that, Justice Stevens.
04-607 +++$+++ 27386 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your point is that even though step 2 is performed as the second step of step 1 which is also not patentable, you get together for the patent?
04-607 +++$+++ 27387 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true. And if you look at the Diehr case, it's a perfect example because Diehr had more steps but it was absolutely true in Diehr that every single step, including the mathematical equation, was part of the prior art. And this Court said that's potentially patentable because you have found a way to put all these disparate things together in a way that makes them potentially useful.
04-607 +++$+++ 27388 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does that fall within it? I mean, I can't resist pointing, as one of these briefs did, the phrase anything under the sun that is made by man comes from a committee report that said something different. It said a person may have invented a machine or a manufacture, which may include anything under the sun that is made by man. So referring to that doesn't help solve the problem where we're not talking about a machine or a manufacture. Rather we are talking about what has to be done in order to make an abstract idea fall within the patent act. Now, sometimes you can make that happen by connecting it with some physical things in the world and sometimes you can't.
04-607 +++$+++ 27389 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But Justice Breyer --
04-607 +++$+++ 27390 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if you have a clear statement other than Diehr, Flook, Morse, which draws that line properly, let me know.
04-607 +++$+++ 27391 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the telephone cases, Bell and Diehr, are cases that absolutely show that under this Court's cases, this is patentable subject matter. Again, we're talking about the mouth of the funnel, not the end of the funnel. But let me point something else, Justice Breyer, which is it came from a committee report but it's already been incorporated in this Court's cases in Chakrabarty and in Diehr as exemplary of Congress' determination to have the mouth of the funnel be very wide. And if there are problems with something being ultimately patentable, they are because there is some other requirement of the patent law that -- that -- that should be looked at. One of the other points on the question that Justice Scalia asked, because I think it is important on whether this question is before the Court, is that the rules of this Court, rule 14(1)(f) mandated the petition shall contain, quote, the statutes involved in the case set out verbatim. And you can pick up the cert petition and indeed there is an appendix which is at the very last page of the petition, and you can look at it and it says, pertinent statutory provisions. There are two statutes, section 112 and section 271. You can pick up their blue brief and do the same with the back flap, and we have the fishes and the loaves. Now they have three statutes, 101, 112 and 271. There is no way to construe their question 3 as having been intended all along to encompass a very separate affirmative defense that they never put in front of the trial court or the Federal Circuit.
04-607 +++$+++ 27392 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would the case be different if they quoted section 101 in their appendix?
04-607 +++$+++ 27393 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I think it would be different, Justice Stevens, because then their argument that this was encompassed within one of the questions in the petition might have some surface plausibility. But it doesn't. Let me just go back and link that point with another aspect of our legal system, which is you see cases of forfeiture and waiver all the time. This term in Unitherm and in Arbaugh, you have already said twice that parties should be held responsible for their procedural defaults. You do that in other areas of the law. And the one that came to mind, to my mind as I was thinking about this case, Justice Stevens, is going all the way back to Wainwright versus Sykes, because you have cases every year involving habeas corpus, where Wainwright versus Sykes says we have to be careful about sandbagging, and we're going to presume that an indigent defendant on trial for his life in a rural county someplace with a lawyer two years out of law school, who can't find the courthouse, consciously chose to save the federal claims so that he could assert later, have it in his back pocket: We're going to have a rule of forfeiture for sandbagging. Empirically, one may well wonder whether that is empirically likely to be true in a great number of cases. But we don't have to wonder in this case because every well advised corporate defendant, if I am their lawyer, I will advise them to hold this in the back pocket and to have a second trip to the trial court and the court of appeals because in the rules in affirmative defense, rule 8 says you have to plead it and the statute says you have to prove it. And it went all the way up the ladder. And if you tell them that they get to start all over again, what you will have is every well advised corporate defendant will be advised by counsel, like me and by Mr. Franklin, that the way to do is to tire the inventor out, have a trial and then we can start all over again. And that's no way to run a legal system, especially when they're coming with the most important questions of patent law to this Court with incredibly far-reaching implications and the best that they can say to the Court about why you shouldn't worry about the consequences is, as they say in the closing pages of the reply brief, rule for us and every other case will have to be considered on its own merits. Which I guess is true as far as it goes but it's about as helpful as telling the Patent Office and the lower courts that life is a fountain. And you know, this Court does not sit to issue --
04-607 +++$+++ 27394 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You mean life isn't a fountain? (Laughter.)
04-607 +++$+++ 27395 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I didn't say it wasn't. I just said that the expression of that thought is not helpful. And insofar as this Court sits to advise the lower courts and the government and the patents office and the investing community who could swing billions of dollars on the basis of an issue that was never litigated in the lower courts, I frankly submit, Justice Scalia, that it would be irresponsible for the Court to reach out and deal with a question for which there was never an adequate factual predicate.
04-607 +++$+++ 27396 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And Wainwright against Sykes was even decided before AEDPA was passed, too.
04-607 +++$+++ 27397 +++$+++ TRUE +++$+++ MR. ESTRADA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly. And Congress actually implemented that in AEDPA. And so my basic point, Justice Stevens, is if that the legal system takes the procedural regularity of our courts seriously enough to enforce them in what would seem to some people to be pretty compelling circumstances of life and death, there is little claim on the legal system for a well heeled corporate defendant who has been adjudged to be a willful infringer by a jury to come to this Court and asked to be put in the starting gate again. There is no way that -- again, that is no way to deal with the legal system. I have nothing further, Justice Stevens.
04-607 +++$+++ 27398 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Estrada. Mr. Franklin, I think you have about four and a half minutes left.
04-607 +++$+++ 27400 +++$+++ FALSE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Hopefully I won't, I won't have to use all that. Just a few points, Your Honors. There was a suggestion made that it matters what purpose these tests were undertaken for. That is not true. We had argued extensively that it did matter, that in fact the doctors were using this for not detecting vitamin deficiencies but for detecting heart disease. That was not -- we were not successful on that. What the court of appeals said was any doctor on pain of malpractice will necessarily perform the correlating every time that doctor looks at a test result. So it doesn't matter why the doctor does that. Second, Morse was clearly a case decided under what is now section 112. I think Mr. Hungar admitted that. The language of the case makes that clear. It quotes the relevant statute, and all of this is in our reply brief, and it concludes that the patent in that case was overbroad because it didn't, it contravened what is now section 112 and that is how we argued --
04-607 +++$+++ 27401 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Weren't 112 and 101 combined at that time?
04-607 +++$+++ 27402 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They were.
04-607 +++$+++ 27403 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you disagree with that?
04-607 +++$+++ 27404 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't. He is correct on that. But look at the case and how it was decided. It was decided on the basis of what is now section 112. We have cited numerous cases in the lower courts that have interpreted it that way. And I believe Mr. Hungar admitted that too.
04-607 +++$+++ 27405 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't want to take up your time on rebuttal but I have to ask you, do you have an explanation for not quoting section 101 in your papers?
04-607 +++$+++ 27406 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the explanation is that we cited all of the cases -- for example, Mackay Radio is a case we cited that doesn't itself cite 101. The Court itself never cited 101 in these cases until 1972. It was a judicially created exception for laws of nature and natural phenomena. And of course to the extent it is applicable here, it is applicable either on its own, but also in connection with and as a natural predicate to the 112 inquiry. And there I think the analogy to Morse is quite striking. And what -- in Morse, the Court said that he could not monopolize all devices and processes used to transmit the characters at a distance through the natural phenomenon of electromagnetism. Here what these patentees are seeking to do is to monopolize all homocysteine tests that are used to, as they say, detect vitamin deficiencies through the natural correlation that they recite. Morse couldn't do that because it wasn't limited to the one device that he actually invented. Here they cannot do it because it's not limited to the one homocysteine assay that they in fact invented, that we use and that we pay royalties on every time we use. Finally, I think that the primary gatekeepers here on these kinds of things is the Patent & Trademark Office. I think they're trying their best, but what I heard from their representative today is that they're not prepared to do anything about these kinds of patents unless this Court gives them further guidance. We are only asking that the Court give them further guidance on this patent and to say that a patent that claims nothing more than a natural correlation preceded by the inherent and generic step of measuring the input for that correlation is invalid and the judgment that is based upon it should also be reversed. Thank you, Your Honors.
04-607 +++$+++ 27407 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you. The case is submitted.
04-623 +++$+++ 27411 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ The Court will now hear argument in Gonzales v. Oregon. General Clement.
04-623 +++$+++ 27413 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: Before Oregon became the first State to authorize assisted suicide, the prescription of federally controlled substances to facilitate suicide generally violated State law and also violated Federal law. Respondents contend that Oregon's decision to remove the State-law consequences from that conduct also operated to remove the Federal-law consequences.
04-623 +++$+++ 27414 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask, what Federal law does it violate?
04-623 +++$+++ 27415 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It violated the Controlled Substances Act. And the D.A. had taken the position, before Oregon acted, for example, that the fact that a doctor prescribed controlled substances for purposes of a suicide was a basis for revoking his license.
04-623 +++$+++ 27416 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, now, would that be true also for any doctor who provided the substances to furnish an execution of a convicted death penalty convict?
04-623 +++$+++ 27417 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice O'Connor, the death penalty situation, lethal injection, is different, for a number of reasons. Of course, the D.A. has long taken a position of non-enforcement in that context, which would be protected by this Court's decision in Heckler against Cheney.
04-623 +++$+++ 27418 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, otherwise, it would be the same reasoning --
04-623 +++$+++ 27419 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think it would, Justice O'Connor, at least not since 1994, because in 1994 Congress passed a statute that I think is best read as ratifying the practice of lethal injection. This is 18 U.S.C. 3596. And that statute authorizes the Federal Government to use the method of execution in the State of the sentencing court. And at the time that was passed, in 1994, the overwhelming majority -- something like 25 of the 38 States -- had already used lethal injection. So, I would read that as --
04-623 +++$+++ 27420 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But would it be open --
04-623 +++$+++ 27421 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a ratification --
04-623 +++$+++ 27422 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- to the Attorney General to pass a regulation like this one, and all of a sudden apply it -- some new Attorney General, who had a very different view of the death penalty?
04-623 +++$+++ 27423 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't think so, Justice O'Connor, and I think the reason is, at a minimum, 18 U.S.C. 3596, because I think that would now stand as an obstacle to that type of regulatory impression --
04-623 +++$+++ 27424 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does the --
04-623 +++$+++ 27425 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, not if it just refers back to the States, would it?
04-623 +++$+++ 27426 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, but this is a provision that dictates how the Federal Government shall do its executions. And I think, at that time, in 1994, it effectively ratified the practice of using lethal injection. I --
04-623 +++$+++ 27427 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does the statute -- does the Federal statute specifically authorize doctors to do this? Or does it simply say that convicts may be executed by lethal injection?
04-623 +++$+++ 27428 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the statute itself says that the Federal Government shall use the method in the State in which the sentencing court sits, the Federal sentencing court.
04-623 +++$+++ 27429 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but the method may simply be lethal injection. And, going back to Justice O'Connor's question, it might still be the case that, on the theory the Government is advancing this morning, it would be unlawful for a doctor to engage in that, because that was, in fact, not within the limits of the practice of medicine, the doctor was using a controlled substance for something outside the practice of medicine, and hence, it would be illegal.
04-623 +++$+++ 27430 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And again, Justice Souter, I think the best reading is, that is now foreclosed -- that interpretation would be foreclosed by Congress's action in 1994. There are also some technical differences --
04-623 +++$+++ 27431 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I take it Congress did not refer specifically to -- or did not include a specific authorization of doctors, so that we'd have to do a little construction to get to your point.
04-623 +++$+++ 27432 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think we would have to do a little construction, in fairness, but I do think -- I mean, and there also are some differences, because, for example, as I understand the practice in most States, doctors actually aren't exactly involved in the specific process of administering the lethal injection. There's also a technical difference, which is, with respect to lethal injection, it's not the federally controlled substance which is the lethal agent. It's just that there's a federally controlled substance that's used to administer -- to relieve pain in conjunction with a different injection that's not -- that does not involve a federally controlled substance. And that's actually the lethal agent. Here, of course, it's --
04-623 +++$+++ 27433 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In your view, were it not for the statute, the Federal statute, your view of the Attorney General's authority is -- leaving that statute aside, if it weren't there -- the Attorney General, should we have an Attorney General who is opposed to the death penalty, could, in fact, regulate or stop Federal -- State death penalties, through this same mechanism, by saying that no physician can be registered insofar as he engages in that.
04-623 +++$+++ 27434 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, I haven't thoroughly considered the issue, precisely because I do think the '94 statute stands as an obstacle. It may be that some of the differences in the way that the death penalty is administered, the fact that doctors aren't directly involved --
04-623 +++$+++ 27435 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ At most, it --
04-623 +++$+++ 27436 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- would allow for --
04-623 +++$+++ 27437 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- at most, it would allow him to prosecute, or to move for the dis-certification of doctors who engage in that practice. And if the State chooses to do it without doctors, it would be okay.
04-623 +++$+++ 27438 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's right. As I say, I think some of the technical ways in which the penalty is administered could make a difference.
04-623 +++$+++ 27439 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, what we're getting -- at least what I'm getting at was this is, I would probably have read the statute to say that the drug statute, which is trying to stop drug addiction and heroin and -- has nothing to do with the death penalty. And I would think that the argument on the other side is that the statute has nothing to do with assisted suicide. Congress didn't think about the death penalty, and it didn't think about assisted suicide. It's rather like the tobacco case, except a fortiori. Now, what's your response to that?
04-623 +++$+++ 27440 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, several points, Justice Breyer. I think that, first of all, I would say that Congress did focus on suicide, if not physician-assisted suicide, and I think that's an important distinction that I'd like to come back to. But I actually think the comparison to the tobacco case is quite instructive, because there what you had is a statute in which something seemed like it might come within the plain terms of the FDCA, and yet if you took that literally, it would run smack into another statutory scheme. And here, there is no other statutory scheme. To the contrary, the most natural reading of the Controlled Substances Act, I would say -- and I'll address it in a minute -- is that this falls within the authority of the Attorney General. And if you look to any alternative congressional indication of intent on this topic, the only thing you would find is the Assisted Suicide Funding Restriction Act of 1997, which continues a Federal policy against assisted suicide.
04-623 +++$+++ 27441 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I comment --
04-623 +++$+++ 27442 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So, in that sense, I think it's very different than the Brown and Williamson case. Now, taking, though --
04-623 +++$+++ 27443 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I --
04-623 +++$+++ 27444 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- as to what Congress --
04-623 +++$+++ 27445 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- may I ask you about the position this Court took in Glucksberg? That is, everyone on the Court in that case seemed to assume that physician-assisted suicide was a matter for the State, and the Government, at that time, said, "State legislatures undoubtedly have the authority to create the kind of exception to assisted suicide fashioned by the court of appeals. There is every reason to believe that State legislatures will address the urgent issues involved in this case in a fair and impartial way." And then the Government added that, "There is no indication that the political processes are malfunctioning in this area." That was a position presented to this Court in the Glucksberg case by the Government. Now, you are rejecting that position.
04-623 +++$+++ 27446 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect, Justice Ginsburg, I don't think so. I -- we stand by the brief in Glucksberg. Now, obviously in the Glucksberg case, the Federal law that everybody was focused on -- and, in fairness, the United States was focused on -- was the Federal Constitution. And so, that's one important difference. Another important difference -- and I think this is an important point -- is that the Federal regulation here, the interpretation of the Attorney General, does not purport to foreclose the issue of assisted suicide --
04-623 +++$+++ 27447 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, they say --
04-623 +++$+++ 27448 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- which is --
04-623 +++$+++ 27449 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that, in practical terms, that is exactly what it does, because the only way they can administer their law sensibly is by using these kinds of drugs, scheduled drugs.
04-623 +++$+++ 27450 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Souter, we don't have a factual record on that question. I think it's not clear that that's the case, because, I mean, proponents of physician-assisted suicide have identified alternative methods. Perhaps the most notorious proponent of physician-assisted suicide, Dr. Kevorkian, operated without a federal controlled-substance license for the last six years before his conviction --
04-623 +++$+++ 27451 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, did he use --
04-623 +++$+++ 27452 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- at the time --
04-623 +++$+++ 27453 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- did he use a controlled substance?
04-623 +++$+++ 27454 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He did not. He did not, which is why he could do that. So, it just goes to prove that physician-assisted suicide and the use of federally controlled substances for physician-assisted suicide are not coextensive.
04-623 +++$+++ 27455 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But we're told that the -- those methods are less gentle to the patient, the methods that the State of Oregon has authorized its physicians to prescribe. We are told, at least in some of the briefs, that, from the patient's point of view, it's much less upsetting.
04-623 +++$+++ 27456 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, we operate without a factual record on that point. In doing some outside reading, it seems that some of the other methods are actually disapproved, not because they're less -- more painful, but because it's more obvious that it's a suicide, in certain cases, and the administration of scheduled drugs sort of blurs that line.
04-623 +++$+++ 27457 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ General Clement --
04-623 +++$+++ 27458 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I guess my point would be, even if we take it as true that controlled substances are the most efficient way to do this, I take it as a given that if Oregon doctors decided that a schedule 1 substance was the most effective way to administer a lethal overdose --
04-623 +++$+++ 27459 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But Congress --
04-623 +++$+++ 27460 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- after this Court's --
04-623 +++$+++ 27461 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- Congress spoke --
04-623 +++$+++ 27462 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- decision in Raich --
04-623 +++$+++ 27463 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- Congress spoke about section -- schedule 1 drugs, and that's what's lacking here. Congress says schedule 1 drugs, those are: no, never; schedule 2: okay on a doctor's prescription.
04-623 +++$+++ 27464 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree there is that difference between schedule 1 and schedule 2 substances. Now, I think that brings us to the Attorney General's regulation, which is a longstanding regulation.
04-623 +++$+++ 27465 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ General Clement, before you go there, I want to question you about your distinction between Dr. Kevorkian and a doctor who uses controlled substances. Why could not the Attorney General treat Dr. Kevorkian's conduct as conduct that may threaten the public health and safety, and seek his -- cancellation of his license?
04-623 +++$+++ 27466 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, I don't think he could. First of all, I think it's clear that that isn't the authority that's invoked here. And the Attorney General in the --
04-623 +++$+++ 27467 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, he --
04-623 +++$+++ 27468 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- OLC opinion are patently --
04-623 +++$+++ 27469 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- he can rely --
04-623 +++$+++ 27470 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- clear on that.
04-623 +++$+++ 27471 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- on things like prior convictions, other things unrelated to a specific transaction. And if he thinks that assisted suicide is contrary conduct that threatens the public interest, health and safety, I don't know why that wouldn't apply to Dr. Kevorkian, as well as somebody using controlled substances.
04-623 +++$+++ 27472 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Stevens, the reason I would say that it wouldn't is, I think you have to read this regulation against a backdrop that for 90 years the Federal Government has been involved in the regulation of controlled substance. Now, there have been a lot of statements and a lot of court opinions during that 90 years --
04-623 +++$+++ 27473 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the Attorney General's directive, if I remember it, does not identify any particular controlled substance. It just identified a particular kind of conduct by the doctor.
04-623 +++$+++ 27474 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- I'm not sure if you're referring to the statute or the regulation. I would say it this way, which is to say --
04-623 +++$+++ 27475 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Neither one. Neither one is identifying which schedule 2 or schedule 3 substance may not be used.
04-623 +++$+++ 27476 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's fair, Justice Stevens. I don't take issue with that. And I think you're right to say that the statutory grant of authority to the Attorney General is quite broad. He's supposed to make judgments in the public interest about public health and safety. The point I was trying to make is, I would read all of that against the backdrop that for 90 years the Federal Government has been involved in the regulation of controlled substance. And we all know that that is going to have an incidental effect on State regulation --
04-623 +++$+++ 27477 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, for me --
04-623 +++$+++ 27478 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of medicine.
04-623 +++$+++ 27479 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- for me, the case turns on the statute. And it's a hard case. And it seems to me that your answer to Justice Stevens would be to say that the Justice Department has found this practice to be an abuse of the drug. But then, my question -- and if -- if you had, in fact, given that answer, my question -- [Laughter.]
04-623 +++$+++ 27480 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- my question would then be, Isn't that an odd statutory scheme, where the Attorney General can find it to be an abuse of the use of the drug if the State of Oregon has specifically told its doctors, under special procedures in defined circumstances, that they can administer it?
04-623 +++$+++ 27481 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think that would be an odd regime. I think if, for example, Oregon made a radically different judgment and said that in Oregon it was going to be permissible to have treatment or detoxification programs that involve the administration of radically larger quantities of controlled substances than had been recognized in any other State, I think, under the authority of cases like Moore, the Attorney General can make a judgment -- now, that's not a legitimate medical purpose, that's --
04-623 +++$+++ 27482 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's --
04-623 +++$+++ 27483 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- an abuse.
04-623 +++$+++ 27484 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that's -- that's a -- the slipper-slope argument that I wanted to explore a bit. If we do rule against you, and for the State of Oregon, on the statute, you do think that there will be some other serious consequence which will hinder the Department of Justice in an orderly implementation of this statute, particularly under the abuse formulation?
04-623 +++$+++ 27485 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think there could be, Justice Kennedy. I don't want to overstate it, in the sense that -- one of the reasons you don't see that much of a conflict between Federal and State law in the regulation of controlled substances is because, in the main, the States have adopted uniform controlled-substances acts that mirror the Federal Act, and, in most of the instances there, works in the way of cooperative federalism in dealing with this problem. This Court tends to see the cases -- Raich, in this case -- where there's a conflict between the State regime and the Federal regime. And I guess my point is the -- in a such a comprehensive Federal regime, if this Court makes clear that State law can overtake the Federal regime, I think it at least creates the potential for there to be a lot of holes in the regime and the possibility, if States take the -- take you up on that invitation --
04-623 +++$+++ 27486 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But part --
04-623 +++$+++ 27487 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to really undermine the regime.
04-623 +++$+++ 27488 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- part of the regime referred to under the statute -- and it's 801(a) implementing the convention on psychotropic drugs -- and there, the implementation incorporates the treaty -- but it says that, "This shall not displace the judgment of the medical community, as determined by the Secretary." And it seems to me that that cuts against you in this case.
04-623 +++$+++ 27489 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Kennedy, it is perfectly true that there are places in the statute where medical or scientific decisions are expressly given to the Secretary of Health and Human Services and not the Attorney General, but it is equally true that there are places in the Controlled Substances Act where medical determinations or public-health determinations are given expressly to the Attorney General and not the Secretary of Health and Human Services. And one of the places, of course, that's true is Sections 823 and 824 of Title 1 -- Title 21 -- which, of course, are the provisions about the registration and revocation of registrants. And Congress --
04-623 +++$+++ 27490 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, certainly the practice of medicine by physicians is an area traditionally regulated by the States, is it not?
04-623 +++$+++ 27491 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It absolutely is, Justice O'Connor, but --
04-623 +++$+++ 27492 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And there is nothing express in the statute suggesting that it's designed to put in the hands of the Federal Government or the Attorney General the regulation of the practice of medicine, is there?
04-623 +++$+++ 27493 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice O'Connor, there's nothing that says we want to take over the regulation of medicine, but it's crystal clear --
04-623 +++$+++ 27494 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, and there were two attempts, were there not, to get legislation passed to do this expressly in Congress, and they failed?
04-623 +++$+++ 27495 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, yes, but I think this Court is always hesitant to draw inferences from --
04-623 +++$+++ 27496 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-623 +++$+++ 27497 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- failed legislative efforts. And if --
04-623 +++$+++ 27498 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-623 +++$+++ 27499 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the Attorney General had not adopted this interpretation, it may be that this Congress would have passed those initiatives --
04-623 +++$+++ 27500 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And a prior Attorney General had a different interpretation.
04-623 +++$+++ 27501 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the prior administer of the DEA before that had our position. So, this is an area where I think, you know, there are different approaches to this. What I wanted to make clear, though, is, you're absolutely right that the regulation of medicine is -- this Court has observed -- is traditionally left to the States. But that has to be reconciled with the fact that for 90 years the Federal Government has had a prominent role in the regulation of controlled substances. And it's been clear --
04-623 +++$+++ 27502 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yeah, but --
04-623 +++$+++ 27503 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- since the very --
04-623 +++$+++ 27504 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- are these -- are these drugs classified as illegal, for all purposes?
04-623 +++$+++ 27505 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not for all --
04-623 +++$+++ 27506 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No.
04-623 +++$+++ 27507 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- purposes, but they are highly classified, highly controlled substances. They are the -- the substances that are at issue here are the most highly controlled lawful substances. And I think if you go back to the history of the Harrison Act, it's been clear since the very first prosecutions under the Harrison Narcotics Act of 1914 that the Federal Government's ability to regulate medicine was going to have an incidental effect on the State's ability to regulate medicine. I mean, States had much more of a laissez attitude towards -- laissez-faire attitude towards the opium trade, but that was really displaced by the --
04-623 +++$+++ 27508 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yeah, but it's a --
04-623 +++$+++ 27509 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Harrison Act.
04-623 +++$+++ 27510 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- it's a different thing to regulate by saying, "No one can prescribe this substance. It's so lethal, we won't let anyone prescribe it at all." And it's quite different to say, "This -- if a -- if a physician follows the Oregon law, it's a -- it's not a legitimate practice of medicine." That's a very different approach.
04-623 +++$+++ 27511 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice O'Connor, I can't tell you there isn't a difference between the treatment of schedule 1 substances --
04-623 +++$+++ 27512 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yeah.
04-623 +++$+++ 27513 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that are just verboten for all purposes and schedule 2 substances, but the regulation of Federal controlled substances in the Harrison Act has always focused on drugs that have some lawful medical uses but are --
04-623 +++$+++ 27514 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What --
04-623 +++$+++ 27515 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- also susceptible to abuse.
04-623 +++$+++ 27516 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- what is the closest analog you have, outside of the present case, where the Attorney General's enforcement activity has impinged upon what the State has recognized as medical practice?
04-623 +++$+++ 27517 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think I would -- I mean, I -- I guess I would do two answers to that, Mr. Chief Justice. One, I would point to the fact that, at the genesis of the Harrison Act, it really was displacing State medical judgments about the opium trade. I would point to two other examples, one under this statute and one other the -- under the FDCA. The idea under the FDCA -- the example that comes to mind is the FDA's treatment of Laetrile, that this Court addressed in the Rutherford decision. In that case, 17 States had made a judgment that Laetrile was -- could be available, for prescription use, to treat cancer. And the FDA, by refusing to approve Laetrile --
04-623 +++$+++ 27518 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's the FDA. I'm talking about the Attorney General, under this statute.
04-623 +++$+++ 27519 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, then I think I would -- I mean, I -- I'm not sure I can point to a decision by the Attorney General, but I think it's -- in the structure of this Act -- obviously the schedule 1 treatment of marijuana that this Court had before it in the Raich case, involved a situation where the Act clearly displaced the medical judgments of California and nine other States --
04-623 +++$+++ 27520 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but --
04-623 +++$+++ 27521 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- who recognized --
04-623 +++$+++ 27522 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that was a clear act of Congress. I mean, Congress had made that decision, and it was unmistakable. It seems to me that the problem that you have, with your reference back to the Harrison Act and the 90 years of regulation, is that the 90 years of regulation was regulation for the purpose of stopping drug pushing and drug abuse, in the conventional sense. And to say that a statute -- or a statutory history taken into consideration in determining the scope of this statute, with that kind of a history, can support a view that suddenly the Attorney General of the United States is given, in effect, the sole authority to determine whether any State may or may not authorize assisted suicide, and may do so in a way that any other Attorney General can flip back and forth -- as has happened in this case, if Attorney General Reno was wrong -- seems to me a kind of argument from history that simply cuts against you, because it leads to a sort of a bizarre result. I mean, what is your response to that?
04-623 +++$+++ 27523 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Souter, I think you have to look at the regulation of drug abuse and ask, To what end was Congress regulating these substances?
04-623 +++$+++ 27524 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, and I -- as I said, it seems to me that your 91 years of history say that the end that Congress had in mind was to stop drug pushing and stop conventional drug abuse. It didn't have any more -- there's no indication that I know of that Congress had assisted suicide in mind, any more than it had the administration of the death penalty in mind.
04-623 +++$+++ 27525 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Souter, what I would say is, what Congress had in mind in enacting these substances is, they were concerned about drug abuse, not for its own sake, but for the debilitating effect it has on people's lives, for its tendency to destroy lives. And I will grant you that Congress, in 1970, did not have before it in its contemplation a State that would make physician-assisted suicide lawful. But that's because it would have been unthinkable at that time. And what Congress did have clearly in its contemplation is the fact that a clear manifestation of a drug's potential for abuse was the fact that it could lead to suicide and overdoses. And that's page 35 of the House report, for those that look at legislative history. And I actually think that's --
04-623 +++$+++ 27526 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suicide is a result of the kind of dementia that comes from drug abuse. That is not suicide under the circumstances that we're talking about within the limits of the Oregon law.
04-623 +++$+++ 27527 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Congress didn't specify, one way or another. And what I would -- I would point you to the House report, because I think it actually is indicative, because when Congress is framing the issue, they first look at the extent of the problem. And one of the ways they identify the problem as serious is, they point to overdoses that are taking place among teenagers. And then, in the next section of the report, they look at the question of the consequences of drug abuse. And what do they point to as --
04-623 +++$+++ 27528 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ General, then may I just ask this question? We're focusing on whether congress really authorized this action by the Attorney General. And in the Raich case, which, of course, was a close case -- there were three dissents in the case -- the -- there was great attention on the fact Congress had considered the interstate market for the product involved, an impact on the market if it was allowed to be sold in -- or grown and so forth in California. But is there any evidence at all that Congress thought that any of these -- schedule 2 or 3 substances that are used in assisted-suicide situations -- that Congress focused on the impact of that use on the interstate market for those drugs?
04-623 +++$+++ 27529 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Stevens, I mean, I -- first of all, I would say, as it compared to Raich, I would almost think this is an a fortiori case, as it affects commerce, because, unlike Raich, which, of course, were untraditional noncommercial transactions, the transactions at issue here are standard commercial transactions that are --
04-623 +++$+++ 27530 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But are they --
04-623 +++$+++ 27531 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- well within --
04-623 +++$+++ 27532 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- are they transactions that have any impact on any market, any commercial market, that Congress ever mentioned?
04-623 +++$+++ 27533 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think they do. And I sure hope they do, because this is a situation where Congress and the Federal Government pervasively regulates the drug transactions at issue here in a way that even respondents don't object to. The details of the form that you fill out for the prescription, the fact that it has to be in writing, the regulations specify whether it has to be in pen or pencil -- I mean, there's such a pervasive involvement of the Federal Government in the regulation of these controlled substances that I don't think there's any additional commerce clause extension by regulating the purpose for which the prescription is being made. That's what the DEA did in the context of Marinol, when it was first moved from schedule 1 to schedule 2, that -- we discuss that in detail on page 30 of our brief. And I think that kind of regulation, although it's not a common feature of the DEA in its administration of the Controlled Substances Act, is an important one, is a legitimate one. And I guess what I would say, with respect to Congress's intent, is, it seems to me odd to think that a Congress that was concerned about overdoses, concerned about suicides, would be indifferent or agnostic on the question of using federally controlled substances for the express purpose of inducing a lethal overdose.
04-623 +++$+++ 27534 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why were -- you were going to say, at one point -- why was Congress concerned about overdoses of narcotics and so forth? Why?
04-623 +++$+++ 27535 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think they were concerned with it part and parcel of -- because, I mean, I think of the things that Congress does when it regulates is, it regulates to protect life, to protect health and safety --
04-623 +++$+++ 27536 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, I mean, there was a reason, wasn't there, that they're worried about people taking narcotics?
04-623 +++$+++ 27537 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I mean, sure --
04-623 +++$+++ 27538 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right.
04-623 +++$+++ 27539 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- there are. Sure they are.
04-623 +++$+++ 27540 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right. What was the main --
04-623 +++$+++ 27541 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And they're worried about the impact --
04-623 +++$+++ 27542 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I would have thought it was narcotics addiction.
04-623 +++$+++ 27543 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think it is, but, again, I think --
04-623 +++$+++ 27544 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. Well, if it is narcotics addiction --
04-623 +++$+++ 27545 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But not solely.
04-623 +++$+++ 27546 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- and I would have thought that was it --
04-623 +++$+++ 27547 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, not solely.
04-623 +++$+++ 27548 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. All right. Again, because you know I'm going to say, What has this got to do with that? So, why not solely? [Laughter.]
04-623 +++$+++ 27549 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not solely. You go ahead. What else?
04-623 +++$+++ 27550 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not solely. And, again, I mean, I think, you know, addiction qua addiction was not the concern so much as addiction because of its tendency to debilitate lives --
04-623 +++$+++ 27551 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right.
04-623 +++$+++ 27552 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to destroy lives --
04-623 +++$+++ 27553 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. Yes, but it's true addiction. And this seems to --
04-623 +++$+++ 27554 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, no, I don't think that's right, Justice Breyer.
04-623 +++$+++ 27555 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No?
04-623 +++$+++ 27556 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think there are a number of instances where the abuse that is being -- that Congress is concerned with is not solely the addictive abuse. I mean, to take one example, Congress has recently, as part of the controlled substances regime, regulated GHB, one of these so-called "date-rape drugs." And the concern for abuse there is not its addictive quality, but the fact that it can be used in a way that's not medical, that can be very pernicious, and the like. And so, I think that's just another example of this concept of abuse being much broader than a narrow focus on diversion or a narrow focus on addiction.
04-623 +++$+++ 27557 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yeah, but even in your example, the concern of Congress is with the use of the drug to hurt people who do not understand that they're going to be hurt, and don't want to be hurt, and perhaps, in your example, the use of the drug to facilitate the violation of the law, that seems to me worlds away from what we're talking about here.
04-623 +++$+++ 27558 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Souter, I would simply say that the Controlled Substances Act, if you look at it, is a very paternalistic piece of legislation. It's not designed to let people make their own judgments about the health risk. And if I could reserve the remainder of my time?
04-623 +++$+++ 27559 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General Clement. Mr. Atkinson. ON BEHALF OF RESPONDENTS
04-623 +++$+++ 27560 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Since Gibbons versus Ogden, at the very latest, this Court has recognized that, in the system of dual sovereignty created by American federalism --
04-623 +++$+++ 27561 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would you speak up just a little, please?
04-623 +++$+++ 27562 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, Your Honor, I will.
04-623 +++$+++ 27563 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Maybe elevate your -- the microphone.
04-623 +++$+++ 27564 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Maybe you could raise the podium.
04-623 +++$+++ 27565 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're too tall. [Laughter.]
04-623 +++$+++ 27566 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'll work on that, Your Honor.
04-623 +++$+++ 27567 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Raise it up.
04-623 +++$+++ 27568 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, that -- the crank will raise it, if you -- no, the other way around. Thank you.
04-623 +++$+++ 27569 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. What the Court said in Gibbons versus Ogden was that health laws of every description were for the States to regulate. In Glucksberg, this Court --
04-623 +++$+++ 27570 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the relationship between the States and the Federal Government has changed a little since Gibbons versus Ogden. [Laughter.]
04-623 +++$+++ 27571 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's certainly true, Your Honor. And yet I think if you look both at your opinion in Glucksberg and in the opinion -- excuse me -- and in the text of the Controlled Substances Act, you will find that this Court has recognized that this specific subject, physician-assisted dying, is one that is for the States to regulate.
04-623 +++$+++ 27572 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that begs the question -- if you had said "this specific subject," the regulation of controlled substances, your answer would have come out the other way, which is kind of what the case is about.
04-623 +++$+++ 27573 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree. And let me talk, then, about the -- why we believe the text of the statute demonstrates that Congress intended to leave the decision about what is, and is not, a legitimate medical practice to the States, as it has always been. And that's the key question in this case, because the U.S. Attorney General --
04-623 +++$+++ 27574 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, because, I mean, wouldn't -- suppose that some State said that, "We think doctors can prescribe, for people who want to take it, morphine for recreational use."
04-623 +++$+++ 27575 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, there are a number of limits clear in the Controlled Substances Act. But taking the hypothetical you've offered, specifically, we think that the answer would have to be that Congress intended to leave the definition of what is a legitimate medical practice to the States.
04-623 +++$+++ 27576 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No matter what? I mean, they have cases and so forth that say, "Of course a State could go too far. A State might decided it's" -- just what I said. And you're going to say your case turns or falls -- you win or lose, depending on whether I accept that a State could not stop a doctor from becoming, in effect, a conduit to a group of drug dealers by saying, "I think recreational use is part of my medical practice"? That would be up to the State?
04-623 +++$+++ 27577 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly, the State could stop it, yes. The question --
04-623 +++$+++ 27578 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No.
04-623 +++$+++ 27579 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, it didn't "stop it" --
04-623 +++$+++ 27580 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But that --
04-623 +++$+++ 27581 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- but could the State allow it?
04-623 +++$+++ 27582 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-623 +++$+++ 27583 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if the State allowed it, the Federal Government would have to allow the drugs to be used for that purpose --
04-623 +++$+++ 27584 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-623 +++$+++ 27585 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you're saying.
04-623 +++$+++ 27586 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- there are a number of limits in the text of the Act itself. There are limits in other Federal statutes not contained in the CSA. There is also the political limits on irresponsible lawmaking at both the State and the Federal level that have served us well for almost 200 years.
04-623 +++$+++ 27587 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I would have thought that at the time this legislation was enacted, it would have been as unthinkable for a State to allow drugs to be used -- to be prescribed by a doctor to kill a patient as it would be for drugs to be subscribed by a doctor to make the patient feel better.
04-623 +++$+++ 27588 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, many drugs --
04-623 +++$+++ 27589 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, I think that assisted suicide would have been as unthinkable at the time this was enacted as prescribing cocaine just for recreational use.
04-623 +++$+++ 27590 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't suggest that Congress had physician-assisted dying specifically in mind at the time that it enacted the Controlled Substances Act. What we do think that Congress had in mind was the 200-year history of State regulation of medicine, of the practice of medicine, and what were, and were not, legitimate medical purposes.
04-623 +++$+++ 27591 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you agree -- you -- in answer to Justice Breyer's question, he mentioned a drug that was a schedule 1 drug, morphine. Or maybe --
04-623 +++$+++ 27592 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry --
04-623 +++$+++ 27593 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- perhaps it isn't --
04-623 +++$+++ 27594 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I think it is a schedule 2 drug, Your Honor.
04-623 +++$+++ 27595 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's schedule 2 drug.
04-623 +++$+++ 27596 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. We certainly don't suggest that a State could authorize the use of a schedule 1 drug for any purpose at all.
04-623 +++$+++ 27597 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But are you saying that if the doctor is using it, saying, "In my medical judgment, this makes people happy; and, therefore, I'm going to prescribe it," that a State could permit that? Wouldn't the Moore case rule that out?
04-623 +++$+++ 27598 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Your Honor. There aren't -- there is no history of the U.S. Attorney General prosecuting any doctor at any time in the -- in the -- since before Moore --
04-623 +++$+++ 27599 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I thought the idea of Moore was, if you're using this, the doctor is prescribing the drug as a pusher.
04-623 +++$+++ 27600 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. And we have no -- we have --
04-623 +++$+++ 27601 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but let's -- but the supposition is that the State legal judgment is that that's the wrong characterization, that it's legitimate medical practice to make patients feel better, and morphine does that; and so, the State can allow them to prescribe morphine to make people feel better. And I understand your position to be that that would be permissible?
04-623 +++$+++ 27602 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-623 +++$+++ 27603 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That could not -- that's not prohibited under the Controlled --
04-623 +++$+++ 27604 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is --
04-623 +++$+++ 27605 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- Substances Act.
04-623 +++$+++ 27606 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that is not prohibited under the Controlled Substances Act if the doctor was acting consistent with the specific terms of the Act and the specific terms of the State statutes.
04-623 +++$+++ 27607 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you say the Attorney General of the United States could not deem it to be drug abuse under the Act if a State allowed that for recreational use or to cure depression or -- How about steroids for bodybuilders? -- and decided that's perfectly okay. Now, can the Attorney General find that that's drug abuse?
04-623 +++$+++ 27608 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As the term "drug abuse" is used in the statute, Justice O'Connor, it is used expressly in terms of the scheduling decisions that the U.S. Attorney General is authorized to make, and required to make. It is not otherwise generally used. What the Controlled Substance --
04-623 +++$+++ 27609 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I don't know that I understand your answer. Could the Attorney General deem the authorization -- purported authorization by a physician to use morphine to help with depression, or steroids for bodybuilding -- can that Attorney General say, under the Act, that's drug abuse?
04-623 +++$+++ 27610 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not if it is permitted by -- and regulated by State law.
04-623 +++$+++ 27611 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose I disagreed with you about that, then would you lose the case?
04-623 +++$+++ 27612 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would certainly lose ground, Your Honor. [Laughter.]
04-623 +++$+++ 27613 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm asking, if I disagreed with you that I thought -- we take the facts of Moore, where he's a drug pusher, the doctor, and, for some unknown reason, the State says, "That's fine, it doesn't violate State law," but the Attorney General says, "Do what you want about State law. I think it violates the Federal law." Suppose I think the Attorney General does have the right to do that for -- assuming it -- assuming it -- then what do you say about this case?
04-623 +++$+++ 27614 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first of all, we don't think, Justice Breyer, that what the U.S. Attorney General is attempting to do here is reasonable within the scope of whatever authority he has. Moreover, he has not followed the processes and procedures that are specified in the Controlled Substances Act. But our first position in this case is, he simply lacks the authority to do that. The Controlled Substances Act reflects, first, in Section 903, the anti-preemption provision, which is found in the State's brief, at page 36, that Congress intended not to intrude on State laws that would otherwise be within the authority of the State.
04-623 +++$+++ 27615 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What does that do to the effectiveness of regulation under the Controlled Substances Act? If one State can say it's legal for doctors to prescribe morphine to make people feel better, or to prescribe steroids for bodybuilding, doesn't that undermine the uniformity of the Federal law and make enforcement impossible?
04-623 +++$+++ 27616 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe it does, Mr. Chief Justice. In the first instance, we think the U.S. Attorney General's claim of uniformity is overstated. We think it's clear from the text of the statute that Congress intended to leave the definition of what is, or is not, a legitimate medical practice in the hands --
04-623 +++$+++ 27617 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that may or --
04-623 +++$+++ 27618 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of the States.
04-623 +++$+++ 27619 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- may not be true. But focus on the particular question. If you have one State that allows the use of a drug that the Federal Government has determined is illegal, and is illegal everywhere else because other States haven't done it, how is the Federal Government supposed to enforce that prohibition?
04-623 +++$+++ 27620 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think the Federal Government is supposed to enforce that prohibition if the prohibition -- if we're dealing with a schedule 2, 3, or 4 or 5 substance. Congress has clearly spoken to schedule 1 substances. Once we move into the other substances, traditionally and has -- as has -- as been the -- as is the case today in every State, physicians, under the regulation of State medical boards, prescribe those medications for purposes other than those for which they're normally prescribed.
04-623 +++$+++ 27621 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm trying to get at the specific enforcement point. If you have one State that allows morphine to be used legally for --
04-623 +++$+++ 27622 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-623 +++$+++ 27623 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- recreational purposes, how is the Federal Government supposed to enforce the prohibition on that elsewhere?
04-623 +++$+++ 27624 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there is no -- well, the Congress can prescribe -- can enforce it in any State in which it is not authorized by State law. If the U.S. Attorney General wants to regulate it in a State where it is authorized by State law, he must go to Congress and get a clear statement of authority to do that.
04-623 +++$+++ 27625 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But are you saying, in response to the Chief Justice's question, that, in fact, Congress, itself, could not explicitly pass a statute that says, "No State, through its doctors or otherwise, may authorize the use of morphine" --
04-623 +++$+++ 27626 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not at all, Justice Souter.
04-623 +++$+++ 27627 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. So, you're not making a --
04-623 +++$+++ 27628 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, not --
04-623 +++$+++ 27629 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- constitutional --
04-623 +++$+++ 27630 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- at all.
04-623 +++$+++ 27631 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- argument. You're sticking to your statutory argument.
04-623 +++$+++ 27632 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We're sticking to the statutory argument.
04-623 +++$+++ 27633 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
04-623 +++$+++ 27634 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which comes down to an argument that "accepted medical practice" means accepted medical practice State by State --
04-623 +++$+++ 27635 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-623 +++$+++ 27636 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- rather than on some uniform basis. Do you have any other area, regarding the enforcement of this Act, where the drug is allowed, or not allowed, to be used on the basis of divergent views of medical practice by divergent States?
04-623 +++$+++ 27637 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are any number of areas in which --
04-623 +++$+++ 27638 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Such as?
04-623 +++$+++ 27639 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- States diverge. Such as -- palliative care, I think, is the most obvious example. These days, there is a great deal of divergence among the States as to how --
04-623 +++$+++ 27640 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In palliative care? And you think in some States you can -- you can prescribe these drugs without violating the Act; whereas, in other States, the same prescription would violate the Act.
04-623 +++$+++ 27641 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In some States, a prescription would violate State law; and in other cases, in other States, that same prescription would not.
04-623 +++$+++ 27642 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would it violate the Federal law in those other States?
04-623 +++$+++ 27643 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would if the -- if the prescription violated the State law, the U.S. Attorney General could take action against the physician.
04-623 +++$+++ 27644 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh. So you say that in -- with respect to many aspects of this legislation, what's lawful -- and what's lawful depends upon the accepted medical practice within the State.
04-623 +++$+++ 27645 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly correct, Justice --
04-623 +++$+++ 27646 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does this have to be reflected in the State medical board determinations, or just in what the -- what the doctors in that region tend to think is a good idea?
04-623 +++$+++ 27647 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, what we believe is that what Congress did in enacting the Controlled Substances Act was leave those decisions to the States to enforce according to their traditional methods. Now, in some cases, that may be by statute; in some cases, the States may discipline doctors for -- through a State medical board.
04-623 +++$+++ 27648 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Any cases that you can think of where the same prescription has been held okay in one State and not okay in another State?
04-623 +++$+++ 27649 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we're not aware of any cases in which the U.S. Attorney General has ever attempted to de-register or to prosecute a doctor who was acting in accordance with State law. We have a history that we're -- to -- at least since the Controlled Substances Act, in 1970, where the U.S. Attorney General has never attempted to suggest, as he does here, that something that is permissible under State law is, in any sense, a violation --
04-623 +++$+++ 27650 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but the --
04-623 +++$+++ 27651 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of the Controlled Substances Act.
04-623 +++$+++ 27652 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- statute goes beyond the State law, the five factors, you know, on the -- justify the --
04-623 +++$+++ 27653 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-623 +++$+++ 27654 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- revocation. And some are in compliance with State law, but the fifth factor is, "such other conduct which may threaten the public health and safety." It seems to me that's a clear grant of authority to go beyond State law.
04-623 +++$+++ 27655 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, we think that the best reading of the five factors is that they continue to respect State laws. Certainly, that's what the legislative history, for those of you who would be willing to look at it, of the 1984 amendments reflects. Congress was not concerned about how States were defining legitimate medical practices. Congress was concerned about the failure to enforce existing State law. And that's clearly reflected in the legislative history, some of which is set out in the State's brief, on page 36, in note 16. But if you look at those five factors, what they are addressed to is individual applicants -- that is, individual doctors -- not to broad medical purposes. And what you're seeing here in the Attorney General's claim of authority, for the first time, is rules that are not addressed to controlled substances, per se, but to medical practices, and that is something that the Congress simply never contemplated giving you.
04-623 +++$+++ 27656 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what do you do with regulation 1306, which -- the one that, of course, talks about "legitimate medical purpose"? That was promulgated in 1971. It wasn't directed to the Oregon statute. And yet it suggests that the Attorney General has the authority to interpret that phrase.
04-623 +++$+++ 27657 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we think there's -- there are two answers to that, Chief -- Mr. Chief Justice. The first is that, in Harris versus Christensen, this Court said that a Federal agent cannot promulgate a new regulation in the guise of interpreting an old one. Now, in 1971, when that regulation to which you refer was enacted, it was absolutely clear that the U.S. Attorney General could not have de-registered an Oregon doctor who was acting in accordance with State law, because, as this Court pointed out in United States versus Moore, the registration was a matter -- was as a matter of right if the -- if the physician was in good standing with State medical authorities. So, what he's attempting to do today, in the guise of interpreting that rule, is to make it mean something entirely different than what it meant when he enacted it. And I think Christensen versus Harris County says that he simply cannot do that.
04-623 +++$+++ 27658 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You had a --
04-623 +++$+++ 27659 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The --
04-623 +++$+++ 27660 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- second answer?
04-623 +++$+++ 27661 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Excuse me?
04-623 +++$+++ 27662 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm sorry. You had a second answer?
04-623 +++$+++ 27663 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's all right. I'm -- I -- I'm happy with the first one, at this point. [Laughter.]
04-623 +++$+++ 27664 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Atkinson, you've spent most of your time talking about the statute and the regulations. Do you also make the argument that ,even if the Government wanted to do this thing, it would be unconstitutional?
04-623 +++$+++ 27665 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We do, Your Honor. One of the questions presented in Raich was whether Congress "could" do what it had done. The question here is -- first of all, is whether Congress "did" what it had done. And our point is not necessarily that it would be unconstitutional, but that it would raise a significant constitutional question, which implicates the clear-statement rule and the constitutional avoidance rule.
04-623 +++$+++ 27666 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But why would it raise a significant constitutional question? I take it that it's none of the Government's business whether people gamble or not. I take it, it's none of the -- the Federal Government -- I take it, it's none of the Federal Government's business whether people are allowed to drink at 21 or at 18, innumerable other things, which really are matters that belong to the police power of the States. But the Federal Government has chosen to regulate those things through the use of its commerce power. Is the drinking age any more a matter of -- or any less a matter of State privilege than suicide?
04-623 +++$+++ 27667 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I wouldn't say that --
04-623 +++$+++ 27668 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, are those -- are those entries of the Federal Government into the regulation of drinking age, are they unconstitutional --
04-623 +++$+++ 27669 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Scalia.
04-623 +++$+++ 27670 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- or do they raise serious constitutional questions?
04-623 +++$+++ 27671 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, they don't, Justice Scalia.
04-623 +++$+++ 27672 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why does this one? I don't --
04-623 +++$+++ 27673 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The difference here is simply that there -- the amounts, as was suggested earlier, are so minute that there cannot be any significant effect on interstate commerce. There is not even any evidence in this record that there is a market for the drugs that are used under the Death with Dignity Act, much less if there is an illicit trade. There's no question here of -- as the Court described it in Raich, where you had a $10 billion market of --
04-623 +++$+++ 27674 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if ten States adopted assisted suicide, it might be a different -- a different --
04-623 +++$+++ 27675 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Once again --
04-623 +++$+++ 27676 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- constitutional --
04-623 +++$+++ 27677 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Your Honor, in --
04-623 +++$+++ 27678 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- question.
04-623 +++$+++ 27679 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in Oregon's experience, we have a small number of people, most of whom consume the drug. The amounts that are left over, even if this law spread nationwide, would not be significant.
04-623 +++$+++ 27680 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would you spend a minute --
04-623 +++$+++ 27681 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The statute gives the Attorney General authority to promulgate regulations for the dispensing of drug -- 821 -- and that seems to me to describe precisely what the Attorney General has done here.
04-623 +++$+++ 27682 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I can't disagree with that, Justice Kennedy. The question is, Does he have authority to tell a doctor in a particular State, not by reference to a particular drug that he may not dispense this drug, but that he may not dispense a drug for a specific medical purpose? And, as I've suggested, this is the first time we've ever seen that happen. And we think that's because it's inconsistent with the congressional design, which was to leave the subject of what are, and are not, legitimate medical purposes to the States and to -- and to have the U.S. Attorney General promulgate rules that deal with things like the -- like prescriptions, scheduling of those drugs so that they are on schedule 2 or schedule 3 or perhaps --
04-623 +++$+++ 27683 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it seems to me --
04-623 +++$+++ 27684 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- schedule 1.
04-623 +++$+++ 27685 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- very odd to have a regulation on dispensing that takes no account of the purpose for which the drug is being used.
04-623 +++$+++ 27686 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we think it's somewhat odder, frankly, Justice Kennedy, to suggest that Congress intended to authorize a single unelected Federal official to decide, in his sole and apparently un-reviewable discretion, that this medical practice, of which he disapproves, may not be --
04-623 +++$+++ 27687 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but I give --
04-623 +++$+++ 27688 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- followed.
04-623 +++$+++ 27689 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- you a statutory reference, and then you tell me about something else.
04-623 +++$+++ 27690 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, no, I -- we agree that he gets to authorize regulations on dispensation -- to require, for example, that there be prescriptions before it be dispensed, that physicians shall follow certain rules and regulations before they dispense, and those are the kinds of things on which we agree he has the authority to engage in rulemaking and to -- and to promulgate uniform --
04-623 +++$+++ 27691 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm sorry, on that, I didn't think that the reg was defining the word "dispense." I thought the statute defines the word "dispense." And it's -- persons registered by the AG to dispense controlled substances are exempt. And then you look at who is such a person. A person who does that is a practitioner. And who is a practitioner? A registered practitioner is one who prescribes, a physician registered by the United States to distribute or dispense a controlled substance in the course of professional practice. And I thought this reg is defining "in the course of professional practice." Am I wrong about that? I thought it was a reg that says, "In the course of professional practice, the prescription, to be effective, must be a legitimate medical purpose by an individual practitioner." Now, I might be wrong. How does it work?
04-623 +++$+++ 27692 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I think that's absolutely right. But the question -- that is a very different question from the question of, Who gets to define, as a matter of policy, what is a "legitimate medical practice"?
04-623 +++$+++ 27693 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ On the matter of policy, I would -- since -- if you -- if you've said basically what you want to say in your argument, I would appreciate your devoting a minute to an assumption which you don't want to agree with. But suppose I were to assume that a State is not free, through the device of defining what's good medical practice, to gut the Act -- that is, to really make marijuana or something else, like morphine, legal -- because they disagree with Congress's basic judgment that it should be illegal. That could happen.
04-623 +++$+++ 27694 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It could.
04-623 +++$+++ 27695 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now, suppose I think that the AG does have the power to stop Congress from gutting the Act. All right? Now, on that, do I have -- if I believe that, on that assumption, do I have to decide this case against you?
04-623 +++$+++ 27696 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
04-623 +++$+++ 27697 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And if not, why not?
04-623 +++$+++ 27698 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are at least two reasons for that, Justice Breyer. The first is the commerce-clause question, which we believe to be --
04-623 +++$+++ 27699 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose, on the commerce-clause question, I -- on assumption, I don't agree with you, either -- then do I have to decide? [Laughter.]
04-623 +++$+++ 27700 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm starting to be backed into a corner. [Laughter.]
04-623 +++$+++ 27701 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think -- I think the third answer then becomes the procedural answer, Justice Breyer, and that is that what the U.S. Attorney General is doing here violates the rule this Court stated in Christensen versus Harris County, and he is attempting to do, by an administrative rule, what he can only do by notice in comment rulemaking.
04-623 +++$+++ 27702 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I would --
04-623 +++$+++ 27703 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Far be it from me to suggest an argument that you don't want to make, but, I mean, I've found it different, in life and law, when you pass a rule in a State that guts an Act, from when you pass the rule in a State that doesn't seem to have much to do with the purpose of the Act.
04-623 +++$+++ 27704 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I certainly would not disagree with that in --
04-623 +++$+++ 27705 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, you would. I think -- [Laughter.]
04-623 +++$+++ 27706 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It seems to me -- it seems to me that you -- that you cannot accept the premise that it guts the Act, if you come in here with the proposition, which you do, that what the Act says is: whatever is accepted medical practice within the State is okay. That's your principal point.
04-623 +++$+++ 27707 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
04-623 +++$+++ 27708 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the Act does not refer to any overall Federal accepted medical practice. It refers to accepted medical practice, State by State. And, therefore, it in no way guts the Act if a State wants to let these drugs be used for, you know, make-people-happy purposes. I don't see how you can accept the premise.
04-623 +++$+++ 27709 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I wasn't anxious to accept it, Justice Scalia, but I -- [Laughter.]
04-623 +++$+++ 27710 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I was -- I thought I was being told to. Let me -- [Laughter.]
04-623 +++$+++ 27711 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but let me -- let me offer, if I can -- we --
04-623 +++$+++ 27712 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask you, in -- Mr. Atkinson, in response to the question you were just asked, you said there were procedural problems, no notice in comment. So, that's a "how" it's done.
04-623 +++$+++ 27713 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's --
04-623 +++$+++ 27714 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How about the "who"? Is this something -- how does it work under the Controlled Substance Act? What authority does the Department of HHS have? What is the division of authority between those two under the Act? The Attorney General, on the one hand, and the Department of Health and Human Services, and including the FDA, on the other.
04-623 +++$+++ 27715 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, I can't answer that question in specific respect to this case, because there is no authority in the Controlled Substances Act for anyone to do what has been done here -- that is, to focus on the specific medical practice and say, "No controlled substance" --
04-623 +++$+++ 27716 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you made --
04-623 +++$+++ 27717 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- "can be used for" --
04-623 +++$+++ 27718 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- you made a point earlier that the Attorney General has never done this before, has never said, "You can't prescribe particular drugs for" -- has -- that has not been done. You've been giving examples of where the FDA ruled that you can't --
04-623 +++$+++ 27719 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-623 +++$+++ 27720 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- use a drug. And that control is nationwide, no matter what the State medical board thinks, right?
04-623 +++$+++ 27721 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. There is -- there are -- for example, in scheduling of drugs -- and the U.S. Attorney General suggests, for example, that he could simply schedule these drugs in a way to -- as a way of avoiding the Oregon Act -- or voiding the Oregon Act, as it were. And, to do that, he has to get his medical and scientific advice from the Secretary of Health and Services, and must accept that advice and be bound by it. And certainly, that wasn't done in this case. So, I hope that answers your question.
04-623 +++$+++ 27722 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Who -- the consultation, you said, was not with HHS, and it wasn't with Oregon? Who did the Attorney General consult?
04-623 +++$+++ 27723 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To the best of our knowledge, it was solely done within the Department of Justice.
04-623 +++$+++ 27724 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May ask this question concerning the -- Justice Scalia's suggestion that you're insisting the States would have the authority to act independently of a congressional prohibition against the use of a substance to make people happy and so forth. Isn't your point in this case that Congress hasn't really spoken to the issue to which the Attorney General has spoken?
04-623 +++$+++ 27725 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right, Justice Stevens.
04-623 +++$+++ 27726 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which is the opposite of the case that Justice Scalia point, where the Congress has spoken to the issue.
04-623 +++$+++ 27727 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And there are circumstances in which it has, and those in which it has not. And to try to respond to Justice Scalia's point, again I would invoke the 200 years of responsible regulation of the practice of medicine, which is the backdrop against which Congress legislated in this case. Congress does not lightly assume, nor should it, that States are going to -- are going to simply legalize drugs to make people happy. It hasn't happened. Congress doesn't assume it's going to happen. States act responsibly. Congress assumes --
04-623 +++$+++ 27728 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but in 1971 Congress didn't assume the States were going to pass legislation for use of drugs to assist with suicide, either.
04-623 +++$+++ 27729 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, that's certainly true, Mr. Chief Justice. But Congress knew, as we all know, that the practice of medicine evolves, that things change, that today's -- acupuncture, the use of Botox, things that were unheard of 30 years ago, are all accepted medical practices today, and they are all regulated by the States, not by the U.S. Attorney General. And the question here is whether Congress intended to enact a uniform medical practices --
04-623 +++$+++ 27730 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ These are all different manners of assisting people to stay alive or assisting people to feel better. Assisting people to die is something of a totally different category.
04-623 +++$+++ 27731 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, I have to disagree. There's a great deal of medical practice now, and attention, focused on end-of-life issues. This Court has seen them. For example, in Cruzan, the Court said it is a matter for the States to decide those things. The Court has seen cases that involve do-not-resuscitate orders. The Court is familiar with living wills. There are any number of --
04-623 +++$+++ 27732 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't deny that. I -- I'm not taking a position on whether, you know, a State wants to allow it, or not. I'm just taking a position on whether it was envisioned by Congress, in 1971, that accepted medical practice would include prescribing drugs to help somebody end his life. And I don't think it -- I don't think it would have occurred to Congress.
04-623 +++$+++ 27733 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that it would have occurred to them either, Justice Scalia, but I do think what occurred to them was that that was a matter that, like any other matter dealing with the regulation of medical practice, the States could be trusted to act responsibly. That's what Oregon has done here. That's what this Court invited the States to do in Glucksberg.
04-623 +++$+++ 27734 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I take it you would agree that, in effect, all you need to win on the statutory argument is for us to accept the premise that Congress may very well have intended to interfere with the practice of medicine and to authorize the Attorney General to do it, insofar as the practice of medicine would have gutted the statute -- e.g., doctors who prescribe recreational drugs, doctors who, in effect, cater to pushers -- but that Congress did not intend to go any further than that in authorizing interference with the practice of medicine. I take it you agree that if we accepted that premise, that would be sufficient for you in this case.
04-623 +++$+++ 27735 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely true.
04-623 +++$+++ 27736 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
04-623 +++$+++ 27737 +++$+++ TRUE +++$+++ MR. ATKINSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely true, Justice Souter. But -- this case is obviously about statutory construction, but it's about statutory construction in a very special area, and that is the area of federalism, of the relationship between the sovereign States and the Federal Government. We think it's clear, from examining the statute, that Congress intended to retain and respect the historic powers of the States to define legitimate medical practices.
04-623 +++$+++ 27738 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. General Clement, you have four minutes remaining.
04-623 +++$+++ 27740 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: I think Respondents have embraced the logical consequences of their position. And what it results in is turning the Controlled Substances Act, the federal Controlled Substances Act, into an odd patchwork. It also is profoundly a-historical, because, at the time of the Harrison Act of 1914 -- which the Controlled Substances Act was intended to strengthen, not weaken, as this Court pointed out in Moore -- at that time, the States had a variety of different approaches to opium and heroin and other -- and cocaine and other substances -- opium and cocaine now of which land on schedule 2. Some of them tightly regulated them, some of them allowed them in over-the-counter tonics in large quantities. And the point of the Harrison Act was to clean that up and impose a uniform Federal regime. And they knew it would have an impact on State regulation of medicine. And even the Court, in the Linder days, recognize that that was not, per se, a constitutional problem.
04-623 +++$+++ 27741 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what about gutting? Never mind Mr. Atkinson's argument. What about gutting?
04-623 +++$+++ 27742 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's an odd statutory -- I mean, I'm not familiar with the -- with the principle that the Federal authority only extends to prevent that which would gut the statute, and no further. That seems like an odd principle. And I think that, here, it is a perfectly legitimate interpretation of this statute to say that a Congress that was profoundly concerned with overdoses, with suicide, with drug abuse, precisely because of its debilitating effect on people's lives, would not have been agnostic at the prospect of --
04-623 +++$+++ 27743 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ At the time --
04-623 +++$+++ 27744 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- controlled substances.
04-623 +++$+++ 27745 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- at the time this statute was passed to deal with lax State treatment of opium, was opium regulated as part of medical practice in any of the States?
04-623 +++$+++ 27746 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was, Mr. Chief Justice. They were all over the map, but there was clearly a recognition that doctors were part and parcel of the problem, that there were needs in States to more closely regulate both the doctors and the pharmacies. That was, kind of, the two problems that gave rise to this. And there's no question that the impact of the Federal program was profound on the State's practice of medicine. Nonetheless, that program was upheld, and that has been the tradition in this area.
04-623 +++$+++ 27747 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was the impact profound because they were in what's now schedule 1, that they were just prohibited? In other words, were doctors allowed to prescribe opium for some purposes?
04-623 +++$+++ 27748 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They were. And opium's now on schedule 2. The Harrison Act did not have the schedules we're familiar with from the Controlled Substance. But most of what was at issue -- I mean, opium, in its various forms, morphine, all of that of that is now on schedule 2, and that's really what prompted the Harrison Act in the first instance.
04-623 +++$+++ 27749 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask you this question? If the Attorney General determined that acupuncture was conduct that threatened the public health and safety, could he de-license, or revoke, the license of doctors who engaged in acupuncture?
04-623 +++$+++ 27750 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Justice Stevens. It's the same reason as my answer earlier, which is, I think you have to look at this regime, and read it in light of the 90 years of Federal involvement in the regulation of controlled substances and the lack of a traditional Federal role in regulating medicine qua medicine. And I think this is on the -- on the side of the line of regulating controlled substances. With respect to the commerce-clause issue, I would -- thought that one thing that came clear out of the Raich decision is that the relevant factor to consider is not the class of activities that a State decides to decriminalize, but, rather, the class of activities that Congress decides to regulate. And with respect to schedule 2 substances, I would think this case is a fortiori. We're not talking about substances that are homegrown and are never part of a commercial transaction. And even those who were in the dissent in Raich, I think, would think that this was an appropriate commerce-clause application. This case is to Raich as the regulation of commercial farming would be to Wickard against Filburn. It is a much different situation. Congress's commerce-clause power is more robust here. I wanted to remark and focus for a minute on what an odd statute Oregon has passed. The practitioner respondents point out it is a prescribing law only. And Oregon itself points out that what's allowed here is the prescription, but not the administration, of these substances. Even what Oregon does, does not purport to be medicine, as one traditionally understands it. I can think of no other medical substance where a doctor can prescribe it, but not administer it. And I think if you look at that aspect of the statute, what becomes clear is that Oregon is not regulating medicine, it's purporting to basically take a Federal regulatory regime that allows doctors the ability to get at schedule 2 substances. Thank you, Mr. Chief Justice.
04-623 +++$+++ 27751 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General Clement. The case is submitted.
04-631 +++$+++ 27756 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We will now hear argument in Wagnon vs. Prairie Band Potawatomi Nation. Mr. Olson.
04-631 +++$+++ 27758 +++$+++ FALSE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: Kansas imposes a tax on the distributors of motor fuel. The legal incidence of that tax is explicitly, by statute, imposed on the distributor of the first receipt of the fuel. The tax is, thus, imposed and collected off-reservation from non-Indians. The who, when, and where of the tax is all off-reservation and non-Indian.
04-631 +++$+++ 27759 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Olson, may I ask you to go one step beyond that on an issue of fact that I just don't understand from reading the briefs? Let me give you three quick quotations. First, the court of appeals opinion contains this statement, "An expert on behalf of the tribe reported that basic economic theory teaches that the nation's station cannot charge prices high enough to allow collection of both the Kansas and the nation's fuel taxes." The red brief says, on page 8, "It is undisputed that enforcing the State tax on fuel sold and delivered to the station would effectively nullify the tribal fuel tax." Finally, the yellow brief, on page 13, says, "By selling its fuel at market prices, respondent" -- the tribe -- "is making both a profit and collecting a tax." My question is, Do we know, from the record, whether the tax that is assessed on the distributor is, in fact, passed through to the tribe so that, in economic effect, the tribe is collecting, via pass-through, the State tax and imposing its own tax and still selling at market prices?
04-631 +++$+++ 27760 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I had -- I had the same question, Justice Souter, as I was looking at this yesterday. And I investigated it. And it is my understanding, but I did not find this completely in the record, that the distributor is, indeed, paying the tax, and that the tribe is also collecting a tax. Now, I don't quite understand how you reconcile those two points that you've just raised. If it's -- if it's something that is economically not possible, how can it -- how is it that it's being done. Despite the fact that the tenth circuit held the tax impermissible, it's my understanding that the distributor is still paying the tax. Now, I --
04-631 +++$+++ 27761 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Make it up on volume, I think.
04-631 +++$+++ 27762 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Maybe they make it up on volume. Maybe people that are at the casino are willing to pay more of the tax. There is a differential between the amount of the State tax and the tribe tax. It's only a couple of cents, as I understand it. But I think the point --
04-631 +++$+++ 27763 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if -- if I may interrupt you -- if it's getting passed through, and they're still selling their gas, then there's no -- then the tribe cannot make an argument here that their sovereign taxing authority is being compromised or threatened. And the argument, basically, would boil down to the argument that they want to make a bigger profit.
04-631 +++$+++ 27764 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I agree with that. And I also would point out --
04-631 +++$+++ 27765 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or want to impose a higher tax.
04-631 +++$+++ 27766 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Pardon me?
04-631 +++$+++ 27767 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or want to impose a higher tax.
04-631 +++$+++ 27768 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yeah.
04-631 +++$+++ 27769 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-631 +++$+++ 27770 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yeah.
04-631 +++$+++ 27771 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yeah. And what -- I think that what -- what this boils down to -- and I'm skipping ahead of myself -- is that the tribe would like to be able to market a product without having to pay the burdens of taxation all the way upstream. There are taxes on the distributors' property, there's taxes that are imposed when the fuel comes out of the ground and at the refinery stage. So, the tribe would like to market a product unburdened by any upstream taxation, the cost of doing business --
04-631 +++$+++ 27772 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but aren't they going to tell us that -- as a practical matter, that the tax is really being collected for the retailers? It's just being passed on to the retailers, but paid by the -- I take it that the distributor -- the way this works -- I, again, had problems with effect -- I take it the distributor sends out a truck. And if he sends out the truck to the tribe, then the distributor just pays the tax, and the tribe would want that tax to be -- that fuel to be distributed, less the cost of the tax.
04-631 +++$+++ 27773 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-631 +++$+++ 27774 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And if the tribe view prevails, then the distributor still sends the truck to the stations that are in the State and passes on the tax for those --
04-631 +++$+++ 27775 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's --
04-631 +++$+++ 27776 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- distributors only. I take it that's --
04-631 +++$+++ 27777 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's my understanding -- and this is explained -- the details of this are explained in Section 3410 -- I can't give you a citation to the record, but the statutes, I'm presuming, are available -- that the distributor pays a -- pays a tax as a result of taking the fuel down from what they call the rack, and then taking it to various service stations --
04-631 +++$+++ 27778 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what event triggers, if you will, the incidence of the tax on the distributor?
04-631 +++$+++ 27779 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's --
04-631 +++$+++ 27780 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it -- is it the obligation -- is it the minute the fuel is brought into Kansas? Is it when it is delivered to the distributor?
04-631 +++$+++ 27781 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's --
04-631 +++$+++ 27782 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or is it later?
04-631 +++$+++ 27783 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The statute explicitly says, Justice O'Connor -- this is on page 2 of the petition -- the incidence of this tax is imposed on the distributor of the first receipt of the motor fuel. And then Section -- that's Section 3408(c) -- Section 3410 then describes, in a little bit more detail, the physical operation of the reports that the distributor has to make, and the distributor has to pay the tax.
04-631 +++$+++ 27784 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, the distributor gets the fuel and incurs the obligation at that point, whether or not it's resold.
04-631 +++$+++ 27785 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-631 +++$+++ 27786 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But doesn't incur it, or gets a credit or get it back, if it sells to the United States or if it sells out-of-State. In other words, it's not just the receipt.
04-631 +++$+++ 27787 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's -- Justice Ginsburg, it is the receipt that triggers the liability for the tax. There is a -- an exemption that may be taken in connection with sales to the United States, and that's a part of a massive quid pro quo operation, where fuel is sold to the United States, and the United States pays the State back substantially all of the tax that --
04-631 +++$+++ 27788 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And out-of-State or abroad --
04-631 +++$+++ 27789 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And out-of-State, there is a deduction for fuel sold out-of-State. That's logical, because the purpose for the tax is to pay for the roads in Kansas, and it's --
04-631 +++$+++ 27790 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then that's the problem, right there, because I thought -- first, there is a tax -- you get a credit if you don't sell the fuel to anybody. So, I don't think it's quite -- if you just sit there with --
04-631 +++$+++ 27791 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't --
04-631 +++$+++ 27792 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Maybe not --
04-631 +++$+++ 27793 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think -- I would disagree with you, Justice Breyer.
04-631 +++$+++ 27794 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You don't? All right.
04-631 +++$+++ 27795 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it's my understanding that if you sat on that fuel for the next year --
04-631 +++$+++ 27796 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You'd still have to pay tax.
04-631 +++$+++ 27797 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- you'd still have to pay --
04-631 +++$+++ 27798 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
04-631 +++$+++ 27799 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the tax.
04-631 +++$+++ 27800 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, on --
04-631 +++$+++ 27801 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's my understanding. Now --
04-631 +++$+++ 27802 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right.
04-631 +++$+++ 27803 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- with respect to the out-of-State distribution --
04-631 +++$+++ 27804 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-631 +++$+++ 27805 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's because --
04-631 +++$+++ 27806 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right.
04-631 +++$+++ 27807 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that fuel is not going to be used on --
04-631 +++$+++ 27808 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Fine.
04-631 +++$+++ 27809 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Kansas highways, presumably.
04-631 +++$+++ 27810 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You are Kansas. You sell -- the retailer in Kansas sells it to Nebraska. Nebraska is, in a sense, a foreign and independent State. And I guess, at some level, the tribes are arguing, "Well, you sell to us, our local retailer. We, too, are a foreign and independent State, even more so. So, if you're going to treat them this way -- give the people in Nebraska a credit so they don't have to pay -- why don't you treat us that way? We drive on Kansas roads sometimes. So do the Nebraskans" --
04-631 +++$+++ 27811 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, sometimes.
04-631 +++$+++ 27812 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- -- "sometimes."
04-631 +++$+++ 27813 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The vast --
04-631 +++$+++ 27814 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, they say -- get into interest balancing.
04-631 +++$+++ 27815 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-631 +++$+++ 27816 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, what -- now you have the whole argument that I'm thinking of. What do you respond?
04-631 +++$+++ 27817 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, one of my responses is that the tribe is located entirely within the State. The record is clear that most of the fuel purchased at that station is used on highways paid for by Kansas. An overwhelming majority of the fuel is not used on a reservation road; its used on the highways of the State of Kansas to get to the casino or to leave the casino. The road that's at issue in this case is 1.5 miles long. The rest of the driving, according to the record, is on the highways of Kansas. So, there's a clear difference there. When you sell -- when the distributors market fuel in Nebraska --
04-631 +++$+++ 27818 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, Mr. Olson, would it make any difference if all of the driving was inside the reservation? Would it --
04-631 +++$+++ 27819 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, we would --
04-631 +++$+++ 27820 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- make any difference?
04-631 +++$+++ 27821 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- we would argue that it would not make any difference, Justice Stevens, because this is a tax on distributors. It is -- the Legislature of Kansas followed the specific advice of this Court in its unanimous opinion in the Chickasaw Nation that if there is an issue with respect to the tax being imposed on -- arguably burdening the tribe, the State can change the legal incidence of the tax. That's a --
04-631 +++$+++ 27822 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that -- that has been what's discussed in the brief, and I think that the court, in Chickasaw, was saying, If the State puts the incidence on the tribe itself, we don't have to look any further. That's what it said. When the State levies a tax directly on the tribe or members inside the reservation, no balancing. But then it also said that if the incidence rests on non-Indians, as here, with the distributor here, then there is no categorical bar, than balancing kicks in. So, all Chickasaw dealt with, with the categorical rule, is when the State says the incidence of the tax is on the tribe.
04-631 +++$+++ 27823 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- that's correct, Justice Ginsburg. But the answer is that this is an entirely off-reservation tax on non-Indians. We're -- we submit that there's no balancing necessary in this case unless you're going to involve an -- require States to submit to litigation and engage in balancing every time an off-reservation tax on non-Indians has some downstream economic effect. But what about the tax on the car that brings the casino patron to the reservation? What about the tax on the cigarettes or the alcohol or the gambling machinery?
04-631 +++$+++ 27824 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, Mr. Olson, the Solicitor General tells us that -- and here we have -- you have the statute, but they have the Kaul case that suggests that this tax is imposed on the reservation.
04-631 +++$+++ 27825 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the Kaul case, in the context of deciding whether other retailers there had standing, basically said that there was an economic impact that affected the retailers. The Kaul case specifically referred, Mr. Chief Justice, to the fact that the legislature had -- and this is on page 67 of the Pacific 2nd cite of the Kaul opinion -- the legislature amended the statute -- this is at the bottom of the second column -- or the first column -- to clarify the question where the incidence of taxation falls. The legislature provided that, unless otherwise specified, the incidence of the tax falls on the distributor. Then, Mr. Chief Justice, the court went on to evaluate the standing question and allowed the distributors the -- to raise the issue, because the economic burden did come through the distributors. It's important, in that context, to note that the ultimate burden of any of these taxes is not falling on the retailer, it's falling on the consumer. It's falling on the consumer of the gasoline. The consumer puts the gasoline in the car, and then the car is driven overwhelmingly -- the facts are unquestionable in this case -- overwhelmingly on the highways of the State of Kansas. So that the burden -- ultimately, the burden --
04-631 +++$+++ 27826 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but, again, that would still be true if the incidence -- the tax was on the retailer rather than the wholesaler.
04-631 +++$+++ 27827 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It still would be true. And -- but the fact is, in this case you have a -- off-reservation tax, on the -- all distributors --
04-631 +++$+++ 27828 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which the statute contemplates will be collected when the gas is sold to the -- by the retailer.
04-631 +++$+++ 27829 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- what the statute specifically says -- this is Section 3409 -- it says that the distributor may pass on -- "may" -- it's a permissive provision -- may pass on the cost of the taxation as a part of the cost of doing business. And, of course, the distributor does that with respect to the cost of its vehicles, the cost of other taxes it pays. It may include those provisions.
04-631 +++$+++ 27830 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what a strange provision. I mean, who would have thought that he couldn't? Why did --
04-631 +++$+++ 27831 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-631 +++$+++ 27832 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- they ever put that provision in, unless it means something different from --
04-631 +++$+++ 27833 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think what it means -- I understand, Justice Scalia, and I -- because I've had the same reaction, "Well, of course he could. Why does he need a statute to do that? It is a cost of doing business." I think that provision is a part of the effort to make clear one of the factors that distinguishes this case from the Chickasaw Nation case, where the court found that it was significant that the distributor was required to pass on the tax, act as a collection agent for the retailer, and took a 1.5 percent commission. So, this court thought that might be significant. Kansas, in part, I think, want to make -- wanted to make it very clear that the -- what was happening in the economic chain is cost of production of gasoline, including tax paid by the distributor, could be passed on in the form of cost of business to the retailer. Now, of course its cost -- it passed on, also, to the consumer. The question --
04-631 +++$+++ 27834 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Olson, what does it mean when they say, in law, the "incidence of the taxes on the distributor"? Does that mean anything other than that he has to pay it?
04-631 +++$+++ 27835 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is unclear from this court's decisions precisely what "legal incidence" means. At least it was unclear to me as I was looking through the court's decisions. But I think it's a combination of the liability for the tax, the responsibility to pay the tax, the fact that -- in this case, the retailer has no liability for the tax. The only liability for the tax is on the distributor. The relationship is between the State of Kansas and the distributor. And all of those factors together make it clear to me, from this court's previous decisions, that "legal incidence" is a term of art, especially in the field of taxation. And, as the court pointed out in the Chickasaw Nation case, it's important to have a --
04-631 +++$+++ 27836 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I guess the reason for my question is, they look back at the court's decisions and see that it turns on where the incidence of the tax is. And so, there's some bright lawyer in Kansas who said, "All we have to do is pass a law saying the incidence is -- of the tax is on the distributor, and we're going to win."
04-631 +++$+++ 27837 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-631 +++$+++ 27838 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, it suggests that we shouldn't give too much weight to that.
04-631 +++$+++ 27839 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the bright lawyer in Kansas who may have done that was the Kansas Legislature, following the unanimous decision of this court in Chickasaw Nation, saying, "If you want to avoid the potential problems that would exist, change" -- and it's not just the incidence of the tax, it's the legal incidence of the tax, it's -- of course, the economic burden of taxation is spread out throughout the chain of distribution. The legal incidence of the tax, as I read this court's opinions, are -- is, it is exactly what it is here, the distributor must pay for the tax, the distributor must account for the tax, the distributor is liable and may be penalized if the tax is not paid. Nobody else is liable for it. The distributor has to pay the tax even if it doesn't sell the gasoline. Here, not only the language is as clear as it could be -- I mean, the legislature specifically says it -- but the operation of the statute -- and the two -- the -- twice, the tenth circuit considered this -- the tenth circuit decided the legal incidence of the tax was on the distributor. The two district courts that decided it before those two tenth circuit decisions, decided that the legal incidence was on the distributor. The facts support that the legal incidence is on the distributor. And respondents, on page 16 of the respondent's brief, it seems to me, acknowledge precisely that. They, in their effort to distinguish the Central Machinery case, which is the Indian taxation statutes -- and we're not -- specifically said there, referring to Central Machinery, "The State tax was imposed on the sale of merchandise. The legal incidence of the tax there, as here, fell on the non-Indian seller." So, the respondents have even said that, on page 16 of their own brief.
04-631 +++$+++ 27840 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I go back to one factual nuance on that? Apart from legal incidence, somebody mentioned earlier that the tax would not necessarily be payable until, in fact, the gasoline was distributed to the retailer. Is that correct?
04-631 +++$+++ 27841 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's not my understanding. I may be wrong. But, as I read Section 3410, the distributor must file monthly reports with the State describing the amount of tax it's drawn down at the rack when it takes the -- unloads fuel into its trucks. And it's responsible monthly --
04-631 +++$+++ 27842 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But isn't that a surrogate for sale to the -- well, I guess what I'm getting at, the tax apparently is not payable when the distributor receives the fuel, but only when the distributor transfers the fuel to a retailer.
04-631 +++$+++ 27843 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I --
04-631 +++$+++ 27844 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No?
04-631 +++$+++ 27845 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's not my understanding. The -- it is not -- the incidence -- or the occasion for the payment of the tax isn't a sale to a retailer. You'd have -- I can imagine the practicalities of that would drive everybody crazy. The distributor --
04-631 +++$+++ 27846 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why would he be drawing it down, except to sell --
04-631 +++$+++ 27847 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, of course -- of course, the distributor is drawing it down to sell fuel to gasoline stations.
04-631 +++$+++ 27848 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yeah.
04-631 +++$+++ 27849 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It may -- there may be some storage involved, there may be other occasions. But the fact is that the distributor files a monthly report describing how much fuel is -- it receives.
04-631 +++$+++ 27850 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Olson, in terms of the text of the statute that is -- the incidence is on the distributor of the first receipt, but then there's this language -- and it appears in a few places -- "the tax is hereby imposed on the use, sale, or delivery." What does -- what does that mean, that the tax is imposed on the use, sale, or delivery?"
04-631 +++$+++ 27851 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this is -- this is an effort by the legislature to say that fuel, which is going to be used in Kansas, by and large -- there's always going to be exceptions -- fuel that is used, by and large, in Kansas on the roads of Kansas, shall be subject to a tax so that those roads can be built and maintained. Now, how shall we, mechanically, impose and collect that tax? We will do it on the first receipt by the distributor.
04-631 +++$+++ 27852 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does that mean, Mr. Olson, that the tax that the -- the fuel, rather, that's sold to the United States Government, later, out-of-State, when is the credit for the sales out-of-State made? Is that made at the time of the initial delivery, or is -- do they ask for a refund a month later?
04-631 +++$+++ 27853 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know the answer.
04-631 +++$+++ 27854 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I couldn't tell from the --
04-631 +++$+++ 27855 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know the answer to that, Justice --
04-631 +++$+++ 27856 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It seems to me that might be a way of identifying whether the term "legal incidence" really has any significance.
04-631 +++$+++ 27857 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would say that the -- that if the -- this Court's prior decisions have any consistent meaning, that the person who has the obligation to pay the tax, and who might claim some credits or deductions, like we all do when we file our tax returns, the legal incidence of the tax is on us, as taxpayers. The taxpayer here is the distributor. The statute says so. The way the statute works --
04-631 +++$+++ 27858 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I, sort of, take "legal incidence" to mean the duty to pay the tax. And I'm just wondering whether -- when fuel is sold to a distributor that the -- I mean, the distributor knows the fuel is going to be resold to the United States -- does he have an exemption from the tax, because he knows what's going to happen to it, or does he have to pay the tax, or accept the obligation to pay the tax, and then --
04-631 +++$+++ 27859 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think --
04-631 +++$+++ 27860 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- subtract, later on?
04-631 +++$+++ 27861 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I think, but I can't represent to you know that I know for sure, that that is an accounting process that takes place. Because these are transactions -- thousands of transactions that are taking place all of the time. Kansas also has a practical reason for imposing this tax on the distributors. There are X number of distributors. You can imagine how many times X there might be retailers and how many different disputes and so forth. The point -- one of the points that this Court has repeated made in connection with tax cases, and inter-sovereign immunity issues with respect to tax cases, is vitally important that there be certainty, predictability, and some understanding of fixed events with respect to taxation. States can't be engaged in litigation constantly, depending upon how many casino customers were here, how many people bought this gasoline, how many people bought that gasoline the next month, and how much did the tribe charge for the gasoline on its reservation. That kind of balancing process makes no sense whatsoever, and it -- and it sentences the States to litigation, and this Court to repeated decisions, based upon specific facts. That's why, we submit, that although the balancing is overwhelmingly in favor of the State, because it's a tax for gas that will enable someone to drive on roads that the State has to pay for, that, in this situation, one balancing test makes little sense. It simply invites litigation --
04-631 +++$+++ 27862 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Olson, you mentioned Section 3410. Where does that appear on --
04-631 +++$+++ 27863 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-631 +++$+++ 27864 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I can't find it in anybody's --
04-631 +++$+++ 27865 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I was not able to find it, either, in the briefs. It's -- the Kansas -- it's the -- it's in the Kansas statutes, of course, but I couldn't find it set out verbatim in the -- in the briefs. I suspect it's in there someplace, but I couldn't find it when I was looking.
04-631 +++$+++ 27866 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Olson --
04-631 +++$+++ 27867 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I couldn't either.
04-631 +++$+++ 27868 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- could we go back --
04-631 +++$+++ 27869 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask -- excuse me.
04-631 +++$+++ 27870 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- to the question that Justice Souter raised at the outset? Because I'm really puzzled. This is the picture I have of the case. And please tell me where it's wrong. Two jurisdictions, both with authority to impose a tax, the State and the tribe. So, if the other weren't taxing, there wouldn't be any question, that the tribe can tax and the State can tax. But the two can't coexist, because the consumer's not going to pay the price. So, only one can. And the issue is, which one dominates, and which is one is subordinate? But you have unquestionable authority to tax in both. And I thought it was clear that the two taxes did -- this is not a case where the tribe can impose a tax, the State can im- -- oppose. I read the briefs to accept that the tribe tax -- couldn't put its tax on top of the State tax.
04-631 +++$+++ 27871 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- it's a matter of economics, Justice Ginsburg, just as your question suggests. The tribe would not -- would like to be able to market tax-free fuel at its non-regulated casino. It would -- probably would like -- and if this case is decided against the State, it would probably not like to pay the tax on the -- on the car that brings the patron --
04-631 +++$+++ 27872 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But not tax-free. I mean, the -- a big thing that was made in this case was that, unlike the cigarette sales in the smoke shops, the tribe is not trying to market a tax exemption. It is putting on its own tax, which will cost the customer, in the end, the same as if there had been a State tax.
04-631 +++$+++ 27873 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it wouldn't have to use a tax to do that. It owns the station. It would --
04-631 +++$+++ 27874 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Who is it taxing? Is it taxing itself?
04-631 +++$+++ 27875 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's --
04-631 +++$+++ 27876 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, the tribe sells the gas --
04-631 +++$+++ 27877 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's --
04-631 +++$+++ 27878 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- doesn't it?
04-631 +++$+++ 27879 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- precisely the point, that the tribe would probably not like to pay the taxes that are paid by the distributor or the refiner or the person that brings the fuel -- the petroleum product out of the ground. What it -- what it simply means is, the margin between the cost and the sale, that's what the tribe would like. It's perfectly understandable. But it would like to have that and -- that tax -- and I'd like to save the balance of my time for rebuttal -- but that tax is overwhelmingly used on the roads of Kansas -- overwhelming used on the roads of Kansas -- which are paid for, built, and maintained with the revenue produced by that taxation. That's what it's for.
04-631 +++$+++ 27880 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Olson. Mr. Gershengorn.
04-631 +++$+++ 27882 +++$+++ FALSE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: In the tribe's view, the State's defense of its tax today depends on a tax that does not exist. Two distinct sovereigns have imposed fuel taxes here. The Prairie Band Potawatomi Nation has imposed a tribal tax on a tribal station operating on tribal trust land.
04-631 +++$+++ 27883 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it collecting that tax?
04-631 +++$+++ 27884 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is, Your Honor. The --
04-631 +++$+++ 27885 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then what's its gripe? It wants a bigger profit? It wants to increase --
04-631 +++$+++ 27886 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
04-631 +++$+++ 27887 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the taxation?
04-631 +++$+++ 27888 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the record is clear that the two taxes cannot coexist in the long run, because it would price the --
04-631 +++$+++ 27889 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but if --
04-631 +++$+++ 27890 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- price the --
04-631 +++$+++ 27891 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- if the tribe is collecting -- it's assuming that -- if the tribe is collecting its tax, and it does not have a claim to greater taxation or greater profit, then how is its sovereign right as a taxing authority being interfered with?
04-631 +++$+++ 27892 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the tribe is being forced right now to subsidize the sales at the station at a loss, which it's doing for the balance of this litigation.
04-631 +++$+++ 27893 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Loss of profit --
04-631 +++$+++ 27894 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the --
04-631 +++$+++ 27895 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- as an entrepreneur.
04-631 +++$+++ 27896 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the tribe -- the tribe is --
04-631 +++$+++ 27897 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, isn't -- I mean, isn't that necessarily the case? If it's collecting all of its tax, then what it's complaining about is that it's getting less profit as the -- as the retailer.
04-631 +++$+++ 27898 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that's correct, at the moment --
04-631 +++$+++ 27899 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Then is that an issue that we should consider on a question of preemption which arises from the tribe's assertion of sovereignty?
04-631 +++$+++ 27900 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it is, Your Honor, because the tribe should not be put to the choice, as a sovereign, where it's running a tribal business, of choosing between -- of generating revenues by the tax versus generating revenues by the profit. There is no --
04-631 +++$+++ 27901 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, in other words --
04-631 +++$+++ 27902 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- suggestion, Your Honor --
04-631 +++$+++ 27903 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- should we, in effect, say there is no distinction between the tribe's position as sovereign and the tribe's position as retail gasoline-seller.
04-631 +++$+++ 27904 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think, in that situation, that the two are very similar, in the same way when a State sells at a State liquor store --
04-631 +++$+++ 27905 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, they're similar, because it -- ultimately, it's all going into the same pocket. We realize that. But, unless there is a claim that its taxing authority, as such, is being threatened or interfered with, I don't quite see why a preemption theory that rests upon tribal sovereignty has any place in the analysis.
04-631 +++$+++ 27906 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because, Your Honor, the -- it is exactly the tribal taxing authority that interfered. It's a -- it's quite a strange form of taxing authority that says you can tax the -- you can tax the station, but then -- but then essentially have to operate the station at a loss. That's not --
04-631 +++$+++ 27907 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's not operating at a loss.
04-631 +++$+++ 27908 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's strange about it? I mean, every upstream tax, as Mr. Olson said, raises the price of goods and services. And it's harder to retail them, because they cost more. So, that's true of every single good sold on the reservation. So I take it your claim must -- and, of course, it may or may not be true that the tribe can put a tax on that. It depends upon
04-631 +++$+++ 27909 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is not a --
04-631 +++$+++ 27910 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But suppose they can't?
04-631 +++$+++ 27911 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is not a --
04-631 +++$+++ 27912 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, my question is, If we hold for you here, and we don't take an absolute principle, well, I guess States are forbidden to put any upstream taxes on.
04-631 +++$+++ 27913 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
04-631 +++$+++ 27914 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why isn't that so?
04-631 +++$+++ 27915 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because that does not describe the tax that's at issue here. The tax at issue here is imposed on the sale or delivery of fuel to the tribe on the reservation, and that is plain --
04-631 +++$+++ 27916 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, isn't it -- but they say no, that it's imposed on the delivery to the distributor --
04-631 +++$+++ 27917 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
04-631 +++$+++ 27918 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- of fuel.
04-631 +++$+++ 27919 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and that, Your Honor, is not correct. What they have done is conflate two concepts, the incidence of the tax --
04-631 +++$+++ 27920 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's what the --
04-631 +++$+++ 27921 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and the --
04-631 +++$+++ 27922 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- statute says.
04-631 +++$+++ 27923 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- with respect, Your Honor, I don't think it is what the statute says. The statute says, in 3408, "a tax per gallon is hereby imposed on the use, sale, or delivery of fuel." It does not say "the receipt of fuel." "The distributor" is defined as somebody who receives and uses, sells, or delivers fuel. All of the critical exemptions in the statutes are based on the distributor's subsequent sale or delivery of fuel to the United States, out-of-State, the Federal contract --
04-631 +++$+++ 27924 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's just a subsequent deduction. I mean, if we get income, we're taxed on it. If we make a charitable contribution, we get a deduction. But that doesn't mean we don't have to pay and are subject to the income tax.
04-631 +++$+++ 27925 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, this would be a very different case if the State had -- if the legislature had passed a tax that said, "This is a tax on receipt," and we were trying to argue that these -- that somehow these exemptions made it not a tax on receipt. But the legislature has said it is a tax on the "use, sale, or delivery." And if I could point to two provisions that I think make this crystal clear, that it is not a tax on receipt, but on the subsequent use, sale, or delivery. The first is 3417, which provides --
04-631 +++$+++ 27926 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where is --
04-631 +++$+++ 27927 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and that is --
04-631 +++$+++ 27928 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- where is it?
04-631 +++$+++ 27929 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- at 10(a) in the appendix, has received the fuel, if he subsequently loses the fuel -- has it lost or burned -- gets a refund of the tax, if it's -- if that happens before he uses, sells, or delivers.
04-631 +++$+++ 27930 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that --
04-631 +++$+++ 27931 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The other thing that --
04-631 +++$+++ 27932 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- works with the income tax, too. You have casualty losses and things like that. It turns out you were subject to the tax, but you don't have to pay it, because you get a deduction. But that doesn't mean you're not subject to it in the first place.
04-631 +++$+++ 27933 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, there are -- there is literally nothing in the statute except for the incidence provision, which is what the State relies on, that makes this a tax on receipt. And, if I could, in Central --
04-631 +++$+++ 27934 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, we ought to know, because they've been -- haven't they had this for a while? So, there must be a dealer somewhere who's not on the reservation -- he's a distributor -- somebody delivered to him a thousand gallons, and it's sitting there in his tank. Doe he have to pay the tax, or doesn't he?
04-631 +++$+++ 27935 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I don't -- I think that you're -- that he would pay the tax in that instance --
04-631 +++$+++ 27936 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if he would --
04-631 +++$+++ 27937 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but I don't think --
04-631 +++$+++ 27938 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- pay the tax, then it is not --
04-631 +++$+++ 27939 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so --
04-631 +++$+++ 27940 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- on his --
04-631 +++$+++ 27941 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Your Honor.
04-631 +++$+++ 27942 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- redistribution.
04-631 +++$+++ 27943 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so, Your Honor.
04-631 +++$+++ 27944 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He is -- sorry -- if -- I'd like to ask the question.
04-631 +++$+++ 27945 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor.
04-631 +++$+++ 27946 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If -- and you can say why this is wrong -- if he gets a thousand gallons from whoever -- Exxon or somebody -- and he puts it in the tank, and he hasn't sold it, and he has to pay the tax, then it would seem to me to be a sale on the distribution to him, not the sale on his distribution to somebody else. Now, why is that wrong?
04-631 +++$+++ 27947 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because -- two reasons, Your Honor -- in the real world, what happens is the distributor picks up the fuel at the rack and delivers it to the retailer. If the -- if the distributor takes the fuel and holds it, he's not a distributor under the statute. A distributor is somebody who receives and uses, sells, or delivers. That's in -- on page 2(a) of the red brief, Your Honor. So that --
04-631 +++$+++ 27948 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, now you're telling me something different from what I understood. I thought you said it probably has happened in the history of this tax --
04-631 +++$+++ 27949 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
04-631 +++$+++ 27950 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that a distributor picked up a gallon of fuel, held it, and has not yet redistributed it. So, you're saying that's never happened.
04-631 +++$+++ 27951 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I'm not aware of that happening. But what I would say -- the point that I would like to --
04-631 +++$+++ 27952 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If I'm certain about what the tax is on, what should we do? Dismiss the case or send it to the -- ask a question, or what?
04-631 +++$+++ 27953 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think that this Court can decide this question based on what the face of the statute is -- itself says.
04-631 +++$+++ 27954 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I think we can --
04-631 +++$+++ 27955 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No court --
04-631 +++$+++ 27956 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- I think we can decide it on the basis that we know that when the distributor puts -- delivers gas to the gas station, it's not instantly sold. I mean, even we know that.
04-631 +++$+++ 27957 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor -- that's correct, Your Honor. But the statute provides that the tax is on the sale by the distributor to the tribe on its reservation. It is exactly like what happened in Central Machinery. In Central Machinery, the incidence of the tax was indisputably on the off-reservation seller. This Court, nevertheless, said, correctly, that the taxable event, the thing that was being taxed, was the sale of tractors to the tribe on the reservation --
04-631 +++$+++ 27958 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the statute says --
04-631 +++$+++ 27959 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that was, therefore, preempted.
04-631 +++$+++ 27960 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the statute says it's a tax on the sale, but then it goes on and says it's the first sale, and the first sale is to the distributor, and that's why the incidence of the tax is on him.
04-631 +++$+++ 27961 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect, Your Honor, what part (c) says, which is what you're reading from, it says, "the incidence of the tax is imposed on the distributor of first receipt." That is the "who." That is not the "what." The "what" is in -- is in 79-3408(a), and it is clearly imposed on the use, sale, or delivery of the fuel. If I could, another provision of the statute that also --
04-631 +++$+++ 27962 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But nobody -- but it's not sold -- it's not taxed twice. If it's sold to a distributor, that distributor has to pay the tax. The distributor then sells it to someone else. That someone else doesn't have to pay the tax.
04-631 +++$+++ 27963 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Your Honor. But the question is, What exactly is the State purporting to tax? This is a situation in which the State is not being unambiguous -- is being unambiguous about what it's taxing.
04-631 +++$+++ 27964 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What if -- what -- perhaps the State expresses it that way just to cover some people who get their gas illegally, and they would say the tax is still due, even if you haven't gotten your gas from a distributor who has paid the State tax. Wouldn't that suffice for why the court imposes the tax on the use, sale, or delivery? Use, sale, or delivery.
04-631 +++$+++ 27965 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think the term "use" is the distributor's use. The scheme that Kansas has set up is a sensible one. It is, the distributor gets the tax and then has three choices. It can use it, sell it, or deliver it. And if the distributor -- if the distributor is -- hasn't done one of those things, then it's -- then it -- then the distributor can be made liable for any tax increases that have -- that happen while the distributor is holding the tax. And so, in our view, and in every court that we're aware of's view -- tenth circuit didn't decide this case on the assumption that this was a tax on receipt of fuel off the reservation. What the tenth circuit said was that Kansas is now attempting to collect its tax for the first time, a tax on motor fuel distributed to Indian lands. It is, again, the same thing --
04-631 +++$+++ 27966 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right, suppose you're right. Can you answer my first question? Can you even remember it? I'll summarize. On your assumption. Look, the Indians, if there is a tax -- they have a retail shop or they have things on the reservation, they go buy them -- Kansas can't impose a tax on what goes on, on the reservation. We go through the balance. But they certainly could impose a tax on the department store in Kansas City, couldn't they?
04-631 +++$+++ 27967 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
04-631 +++$+++ 27968 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so, the Indian then goes to the department store and buys it. He has to pay the tax, doesn't he?
04-631 +++$+++ 27969 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-631 +++$+++ 27970 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Now what he does, he says, "Call up and" -- he says, "Please deliver it." Now he doesn't have to pay the tax?
04-631 +++$+++ 27971 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the answer is: that's correct, and that's exactly what happens in the commerce clause when a person from Virginia buys something from Illinois and has it delivered to himself in Virginia. They don't pay the sales tax.
04-631 +++$+++ 27972 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is the commerce constitutionally --
04-631 +++$+++ 27973 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, under interstate sales tax.
04-631 +++$+++ 27974 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Well --
04-631 +++$+++ 27975 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's the same situation --
04-631 +++$+++ 27976 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- we're now talking Federal rules. Go ahead.
04-631 +++$+++ 27977 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. It was -- it's the same situation there. The question is, Where does the relevant sale take place? And it takes place -- in the Virginia/Illinois situation, the sale takes place in Virginia, which is why you don't pay Illinois sales tax, though you may pay Virginia use tax. It would be the same thing in the tribal situation. The sale in that place, just like the sale in Central Machinery, takes place on the reservation. And what this Court said, in Central Machinery, is that a sale to a tribe of goods on the reservation is -- cannot be taxed by the State. And, indeed, because this tax is on the sale on the reservation, the broader balancing principles apply. The tribe here has imposed the -- its tax on a tribal station, on a tribal land, right where this Court has said its tribal taxing authority is strongest, and has dedicated those revenues to improving the miles of dirt and gravel road on the reservation.
04-631 +++$+++ 27978 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is it relevant --
04-631 +++$+++ 27979 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you what the --
04-631 +++$+++ 27980 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- to the balancing test --
04-631 +++$+++ 27981 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- may I ask you a question about the Federal exemption? In your view, is that made available at the time of the initial purchase by the distributor, or does he have to, in effect, claim a credit later on?
04-631 +++$+++ 27982 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- that way it works, in practice, Your Honor, is -- and their form is in the back of the red brief -- is that the distributor writes down the number of gallons received, and writes down the number of gallons sold to the United States, nets that out, and pays the tax on the net, so that it's -- it's essentially done at the -- at the same time.
04-631 +++$+++ 27983 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So that he -- his obligation to sell the gas is -- arises at the same time as his purchase.
04-631 +++$+++ 27984 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure his obligation to do so, but the form is due on the 25th of the month -- of the next month. And so --
04-631 +++$+++ 27985 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it shows both what they resell to the United States and what they acquired.
04-631 +++$+++ 27986 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, Your Honor. It shows gallons received, gallons exported, gallons sold to the United States.
04-631 +++$+++ 27987 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And let me ask you this question, too, on that subject. Do you think that the exemption that the State allows for resales to the United States is constitutionally compelled?
04-631 +++$+++ 27988 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think the answer to that is yes, under our theory of the case, but no, under their theory of the case. The exemption to the United States --
04-631 +++$+++ 27989 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it's no under our --
04-631 +++$+++ 27990 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- is constitutionally --
04-631 +++$+++ 27991 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- our precedent, I think, isn't it?
04-631 +++$+++ 27992 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry?
04-631 +++$+++ 27993 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's no, under our precedent.
04-631 +++$+++ 27994 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it depends, Your Honor, on whether the legal incidence is on the United States or whether the incidence is on the seller. Under this --
04-631 +++$+++ 27995 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, on that --
04-631 +++$+++ 27996 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Court's precedence --
04-631 +++$+++ 27997 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- on the legal incidence of the tax, we suggested, in the Chickasaw Nation case, that a tax statute's own declaration of the legal incidence would be dispositive. So, why don't we read the statute and say the incidence is on the distributor, and that's the end of it?
04-631 +++$+++ 27998 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because, Your Honor, I don't think that's what this Court's cases say. I think what this Court's --
04-631 +++$+++ 27999 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I thought that's --
04-631 +++$+++ 28000 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- cases say --
04-631 +++$+++ 28001 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- what we suggested in Chickasaw Nation.
04-631 +++$+++ 28002 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think --
04-631 +++$+++ 28003 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Chickasaw said when the tax was imposed on the tribe, we would take the State at its word. It said it's taxing the tribe. If the State put the tax on a non-Indian, then there would be balancing. And that's what Chickasaw --
04-631 +++$+++ 28004 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's my understanding, as well. And this Court has always held it's a Federal question where legal incidence lies, and has not deferred -- has given --
04-631 +++$+++ 28005 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. So, if balancing --
04-631 +++$+++ 28006 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But if I --
04-631 +++$+++ 28007 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- then how do you come out? Because what they're saying is, "Okay, balance. Fine. You want to balance? Here's how you balance."
04-631 +++$+++ 28008 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor?
04-631 +++$+++ 28009 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On the one hand, the Indians have to pay the tax. Okay, that's true. And it's harder for them to impose their own tax. That's true of every upstream tax. And it goes for roads that they use all the time. And they just have a one-and-a-half mile -- and why shouldn't they be treated every -- like everybody else, when they're going to use the roads the tax pays for? So, the balancing works in their favor. Now, what's your response?
04-631 +++$+++ 28010 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That the -- Your Honor, we disagree with that at every level. This -- the tribal tax is addressed to a specific road -- road problem that the Federal Government has identified and addressed in the Reservation Road Program. The reservation roads are in abysmal shape, as the Federal Government has recognized. More than 70 percent are in poor shape, poor condition. The fatality rate is four times the national average. And the tribe is using those revenues to fix -- advance that particular Federal interest, which is reflected in Federal statutes and in the Federal regulatory scheme.
04-631 +++$+++ 28011 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why should all of that make a difference? You make a big point in the briefing, "Well, you're not marketing the exemption, you're taxing, you're using" -- if the -- if the tribe does have the sovereign right to tax or not to tax, why can't it use it not to tax at all and say, "We're giving" -- why is there a presumption in favor of imposing taxes? Why can't the tribe say, "We're not going to tax you if you come to the reservation. Come on in and buy our gas. No tax"?
04-631 +++$+++ 28012 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This --
04-631 +++$+++ 28013 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why isn't -- why isn't that part of the tribal sovereign right?
04-631 +++$+++ 28014 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because this Court has held, in Colville -- and we don't dispute here -- that when the tribe is marketing an exemption, it has no -- it has no -- there are no Federal and tribal interests implicated. And we're not challenging that here. What this Court has said is that when a tribe is generating real value on the reservation so that it has created a market, as this tribe has, to draw people onto the reservation and can sell its fuel at market value, it has a sovereign right and interest in taxing that -- in imposing a tax that the State can't interfere with. And the State here has accommodated --
04-631 +++$+++ 28015 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Who is -- who is the tribe taxing? Is the tribe taxing the purchaser of the gas? Is that --
04-631 +++$+++ 28016 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it taxes --
04-631 +++$+++ 28017 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that --
04-631 +++$+++ 28018 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the retailer. It taxes the retailer, Your Honor.
04-631 +++$+++ 28019 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought the retailer was the tribe.
04-631 +++$+++ 28020 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is. It taxes the tribal station.
04-631 +++$+++ 28021 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, it's taxing itself.
04-631 +++$+++ 28022 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is, Your Honor, but that tax is --
04-631 +++$+++ 28023 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's real neat. I have never heard of that before. [Laughter.]
04-631 +++$+++ 28024 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, actually, it happens all the time. Pennsylvania imposes a tax on State-sold liquor. North Carolina does it. All the State-run liquor stores are subject to a State-imposed tax. But --
04-631 +++$+++ 28025 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, did I understand your earlier discussion, about the department store, to suggest that if the tribe had the tanker truck, and they picked up the fuel and then brought it back, that, in that case, you have no objection to the tax, even though the economic incidence and effect is going to be the same?
04-631 +++$+++ 28026 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, at that point, Central Machinery wouldn't apply. I think that would be a closer case for the balancing, in that situation. The -- so, we wouldn't -- we wouldn't concede that. But, in this case, it's much stronger, because the tax is on the reservation. If I could also just point to one thing that Justice Breyer raised about the -- about the exemptions for other States. What this -- what Kansas has done is provide an exemption for every other sovereign that's implicated -- for other States, for other countries, for --
04-631 +++$+++ 28027 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But is it --
04-631 +++$+++ 28028 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the United States --
04-631 +++$+++ 28029 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- constitutionally compelled to do so?
04-631 +++$+++ 28030 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's -- it is, Your Honor, in this sense. It comes in, in two situations. First, it is -- the Constitution and the Federal preemption doctrine prohibit discrimination. And so, it is, in that sense. But it also goes to the strength of the State interest here. The State has not only -- has accommodated the out-of-State interest, it has also accommodated the in-State Government interests, other than the tribe. It gives 30 to 40 percent of the fuel revenues to counties and to cities for roads. Every other sovereign is accommodated here except for the tribe, and we think that's exactly what Federal law prohibits and why the strength of the tribal interest here, and the tribe's interest in imposing the tax to fix reservation roads, to advance that Federal interest, is exactly what deserves protection.
04-631 +++$+++ 28031 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Cities and counties --
04-631 +++$+++ 28032 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But your --
04-631 +++$+++ 28033 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- aren't sovereign.
04-631 +++$+++ 28034 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- your claim wouldn't disappear if they decided to tax all these other sovereigns.
04-631 +++$+++ 28035 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor?
04-631 +++$+++ 28036 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your claim, as a tribe, would not disappear if they decided to become nondiscriminatory and tax all of the sales.
04-631 +++$+++ 28037 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, it wouldn't disappear, but it might alter the -- it would alter the balance. If the -- what is troubling here is that the State has asserted a right in predictability, but the State's right in predictability is only coming at the expense of a refusal to accommodate the tribal interests in the say way it accommodates every other sovereign. And so, we do think that that goes to the strength of the State's interest here, and to the State -- the strength of the -- of the State's assertion of its tax.
04-631 +++$+++ 28038 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And your view generally was that it was -- that it was indicative of discrimination.
04-631 +++$+++ 28039 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it --
04-631 +++$+++ 28040 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I thought that was the stronger argument, because the -- you're saying, "Look, the State has only the most trivial interest in the amount of taxation it would get here." That would be equally true whether it forgives taxes that -- on fuel that goes to the United States or not. But the discrimination point, if it's a fair one, would be the same.
04-631 +++$+++ 28041 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think -- that's correct, and we've made both arguments, that it's a --
04-631 +++$+++ 28042 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it would matter.
04-631 +++$+++ 28043 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that the discrimination is a freestanding reason that, even under an express preemption test like the State has articulated, we would prevail and that --
04-631 +++$+++ 28044 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All the other sovereigns you mentioned do not consume the gas -- or the gas sold to them is not consumed primarily on the roads of this State, except for cities and counties, which aren't sovereigns. I mean, they simply aren't sovereign. That's the State, itself. They're subdivisions of the State. So, it's making exemptions for its own -- its own State, plus exemptions for sovereigns, where the gas sold to those sovereigns probably will not be used primarily on the roads of this State.
04-631 +++$+++ 28045 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, there is --
04-631 +++$+++ 28046 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It makes perfect sense. I don't see there's any discrimination.
04-631 +++$+++ 28047 +++$+++ TRUE +++$+++ MR. GERSHENGORN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, thank you.
04-631 +++$+++ 28048 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Counsel. Mr. Kneedler.
04-631 +++$+++ 28050 +++$+++ FALSE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Mr. Chief Justice, and may it please the Court: The tribe here has imposed a tribal tax on sales at a tribal business on the tribe's own reservation on tribal land. The exercise of that power of taxation is at the core of tribal sovereignty, as this Court has long recognized, and that power --
04-631 +++$+++ 28051 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ Is it being interfered with?
04-631 +++$+++ 28052 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Yes. And, as to that question, I would point the Court to page 142 of the joint appendix, or page 12 of the petition appendix, in which the Court discusses the expert opinion that the tribe introduced into the record.
04-631 +++$+++ 28053 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ Well, that expert opinion is that, as an economic matter, you can't collect both.
04-631 +++$+++ 28054 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Yes, he says --
04-631 +++$+++ 28055 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ You can't impose both. But the tribe is still imposing its tax, and it's getting every penny that it -- that it purports to impose.
04-631 +++$+++ 28056 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ But it is operating at a loss. As I understand it, the tribe has chosen to subsidize --
04-631 +++$+++ 28057 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ Is --
04-631 +++$+++ 28058 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- out of --
04-631 +++$+++ 28059 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ -- is that --
04-631 +++$+++ 28060 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- revenues.
04-631 +++$+++ 28061 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ -- in the record?
04-631 +++$+++ 28062 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ That is my understanding of what's happening. That's not in the record. What is in the record --
04-631 +++$+++ 28063 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ Let's assume -- let's assume that is true. What difference does that make to an analysis based on a preemption theory which is supposed to take account of tribal sovereignty? The sovereign act is not selling gas, it's taxing. They are taxing. They're getting everything they want under their tax statute. Where, then, is there a basis for a preemption --
04-631 +++$+++ 28064 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ I think, for example, in this Court's decision in Colville, where the Court stressed there that the Court was marketing an exemption from State taxation; that portion of the analysis of the Court there did not turn on whether the tribe was imposing its own tax. It turned --
04-631 +++$+++ 28065 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ No, I mean, it was --
04-631 +++$+++ 28066 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- it turned on economic --
04-631 +++$+++ 28067 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ -- an entirely separate -- an entirely separate rationale. It was saying the tribe is getting this tremendous advantage by -- or wants this tremendous advantage -- by marketing the exemption.
04-631 +++$+++ 28068 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ But the flip side of that in Colville was that if the -- if the tribe, in that case, had been selling to people who would have been on the reservation anyway -- in other words had not come onto the reservation to take -- just to take advantage of an exemption from State taxation -- but would have been on the reservation anyway, the Court specifically contemplated, in that situation, that the tax might well be preempted, because it would be interfering --
04-631 +++$+++ 28069 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ Well, maybe -- maybe it contemplated that, and maybe it simply contemplated that that particular -- that particular argument against it -- i.e., that it was simply selling a tax exemption -- would not have been an argument against it. But it doesn't follow, from that, that the tribe would necessarily have had a winning argument on a preemption theory.
04-631 +++$+++ 28070 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ No, but we -- but we believe it is a winning argument. I think the fair reading of Colville is that the Court would have seen that as quite different.
04-631 +++$+++ 28071 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ Well, if that's a winning -- of course it is different, in the sense you say, but if, in fact, it's an interference -- look, every upstream tax raises the price of goods and services. Every upstream tax -- indeed, every tax in the world -- makes it harder to sell the product. So, every tax makes it harder for the tribe to tax that item which was taxed by somebody else. Now, if that's the basis for saying it's an interference, then every tax is an interference. And I don't see how that could be.
04-631 +++$+++ 28072 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Right. This is -- this is not just any upstream tax, and it -- and the theory here is not based on economic impact.
04-631 +++$+++ 28073 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ But, so far, your theory is based on economics, as I've heard it.
04-631 +++$+++ 28074 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ No --
04-631 +++$+++ 28075 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ But if it isn't, I would like to know what it is.
04-631 +++$+++ 28076 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Yes. Under the -- first of all, in our -- it is our position that, under the Kansas Supreme Court's decision in Kaul, which should get deference in terms of understanding operative incidence of the State tax. The incidence of the tax is, in fact, on the retailer. And the court there found it critical --
04-631 +++$+++ 28077 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ The incidence of the tax --
04-631 +++$+++ 28078 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ The legal incidence --
04-631 +++$+++ 28079 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ Oh.
04-631 +++$+++ 28080 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- was -- is on the retail --
04-631 +++$+++ 28081 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ That's very surprising. When I read the statute, it doesn't have one word about the retailer being obliged to pay --
04-631 +++$+++ 28082 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ And --
04-631 +++$+++ 28083 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ -- anything.
04-631 +++$+++ 28084 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ As we read the Kansas Supreme Court's decision, it's not without ambiguity, but we believe the better reading of that -- of that decision is that, as a matter of legislative intent, the incidence of the tax, who is ultimately going to pay the tax --
04-631 +++$+++ 28085 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ All right, if that's --
04-631 +++$+++ 28086 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- is on the retailer.
04-631 +++$+++ 28087 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ -- the legal incidence of the tax, I would think their side would win, in my mind. Now suppose, actually, the legal incidence of the tax is not on that retailer, but, rather, is on the distributor.
04-631 +++$+++ 28088 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ That would tell -- that would tell you -- I'm sorry --
04-631 +++$+++ 28089 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ If that's so, and if we get into balancing, which I don't know, what is to be said in favor of the Indian side? It sounded to me as if it's harder for them to tax. So, I'm thinking, well, that's true of every tax. And then, put it on something else. Put it on the tires. Put it on anything else, if you can. It'll be harder for them to tax non-Indians. But I didn't know they had a Federal right to tax the non-Indians.
04-631 +++$+++ 28090 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Yes, they do. And, again, this is the situation contemplated in Colville. It's analogous to what this Court said in Cabazon with respect to the gambling facility, where the tribe has introduced on-reservation value. And in Colville, the court contemplated if the tribe puts a service station and sells to people who would be there anyway, that is on-reservation value; they are not simply marketing a tax exemption and drawing people in by virtue of a tax exemption. But, beyond that, just because -- if the Court concludes that the incidence of the tax is on the distributor, notwithstanding the Kansas Supreme Court's decision, the subject matter of the tax, the "what is being taxed," is the sale or distribution, and that is a sale between the distributor and the retailer. That is clearly --
04-631 +++$+++ 28091 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ Well, why isn't it the sale between whoever is selling it to the distributor and the distributor?
04-631 +++$+++ 28092 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ I -- because if you look in -- it becomes particularly clear if you look at the form that is at the back of the respondent's brief, but we also believe it's clear from the -- from the provisions of the statute that are on page 8(a) of the brief. One that hasn't been discussed, for example, is exemption D5 -- excuse me -- the exception for deliveries to other distributors. In that -- in that situation, there is no tax. And, in fact, the form, on page 19(a), makes it clear that any sales by one distributor to another are automatically exempted and not counted in the computation at all. So, distributor-to-distributor taxes are exempted. And this Court, in the Chickasaw case, said that's very instructive, that the incidence of the tax is on the retailer. Whether or not the incidence is there, the transaction --
04-631 +++$+++ 28093 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ It would seem to me exempting distributor-to-distributor taxes just means that only one distributor has to pay.
04-631 +++$+++ 28094 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Only one distributor has to pay, but it means that a sale between the first distributor and the second distributor, for example, is not taxed.
04-631 +++$+++ 28095 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ No, but that's because there was a tax on the first sale to the first distributor. And may I ask this? Supposing --
04-631 +++$+++ 28096 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Actually, there is not. The tax is on the last distributor, with respect to his sale to the -- to the retailer.
04-631 +++$+++ 28097 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ Yeah, but that's because when a distributor sells to another distributor, he is not acting, for purposes of that sale, as a distributor.
04-631 +++$+++ 28098 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ I think that --
04-631 +++$+++ 28099 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ If you sell to another distributor, you're not being --
04-631 +++$+++ 28100 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ That makes -- that makes my point, that the -- that the statute, in applying to any use, delivery, or sale, the sale at issue is the sale that ultimately comes from a distributor to a retailer. And, under this Court's decisions in Central Arizona Machinery and the Bracker case, a sale by a -- by someone residing off the reservation, but where the sale takes place on the reservation, as this one clearly does -- the gasoline that's delivered there -- that is absolutely preempted under Central Arizona Machinery and the Indian Trader Statutes, because you --
04-631 +++$+++ 28101 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ But none of this -- none of this mattered to the tenth circuit, though, did it? I mean, they didn't care where the incidence was. They just went right into the balancing, right?
04-631 +++$+++ 28102 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Right, that's true. And if --
04-631 +++$+++ 28103 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ And you think that was wrong.
04-631 +++$+++ 28104 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ We think the court was wrong to conclude that the incidence was on the -- was on the distributor. And if the Court has a question about that, it could remand to certify that question to the Kansas Supreme Court to clear it up, any ambiguity after Kaul. But, even on the tenth circuit's own way of approaching it, we believe that it was then correct, because it properly applied this Court's approach of looking at the particular context of the Federal, State, and tribal interests. And here, there are very powerful tribal interests in maintaining --
04-631 +++$+++ 28105 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ Is the one other -- the interest other than the interest on being able to tax an item that an upstream tax prevents you from doing because of the economics?
04-631 +++$+++ 28106 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ It is the very same --
04-631 +++$+++ 28107 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ Is that the only one, or are there other ones?
04-631 +++$+++ 28108 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- it's the very same interest that the State is asserting, which is the interest to impose a fuel tax in order to --
04-631 +++$+++ 28109 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ I've got the -- --
04-631 +++$+++ 28110 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- maintain the roads --
04-631 +++$+++ 28111 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ -- I --
04-631 +++$+++ 28112 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- on the reservation.
04-631 +++$+++ 28113 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ -- I want to hear you and know if there's an additional one. I'm not disputing that one. I just want to be sure I get them all. One is -- one is that one.
04-631 +++$+++ 28114 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Is this --
04-631 +++$+++ 28115 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ What else?
04-631 +++$+++ 28116 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- is the general -- the general ability to impose a tax. But here, the interest is augmented by the fact that the tax is dedicated by tribal law to maintaining tribal roads, not just this one-and-a --
04-631 +++$+++ 28117 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ And I just don't --
04-631 +++$+++ 28118 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- -half mile --
04-631 +++$+++ 28119 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- understand. Why doesn't the tribe have an incidence of not having any tax at all, helping --
04-631 +++$+++ 28120 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ It --
04-631 +++$+++ 28121 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- helping its members?
04-631 +++$+++ 28122 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ It --
04-631 +++$+++ 28123 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Why does the balancing only work if it taxes?
04-631 +++$+++ 28124 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ We don't think it does. Under the Colville's decision, if the State is not just -- or the tribe is not just marketing an exemption from State taxation, we think that the tribe -- that the State tax is preempted there, as well. But here, where the tribe is asserting not simply a commercial interest, selling at market value and not marketing a tax exemption of States --
04-631 +++$+++ 28125 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ No, no, no. You say that it could --
04-631 +++$+++ 28126 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- it's imposing a --
04-631 +++$+++ 28127 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- market the exemption?
04-631 +++$+++ 28128 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Pardon me?
04-631 +++$+++ 28129 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ You say that a tribe can market its exemption?
04-631 +++$+++ 28130 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ No, we do not. Under this -- under this Court's decision in Colville, it can't -- the tribe cannot market an exemption, at least to people who would not otherwise be on the reservation. But here, the tribe is asserting both a commercial interest -- selling at profit; and also a sovereign interest -- in taxing. And where you have a tribe asserting both --
04-631 +++$+++ 28131 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Well, why isn't that sovereign interest in not taxing?
04-631 +++$+++ 28132 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ It could. But here, the tribe has asserted a sovereign interest in its tax, and that is what is being substantially interfered with.
04-631 +++$+++ 28133 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ Thank you, Mr. Kneedler. Mr. Olson, you have four and a half minutes left.
04-631 +++$+++ 28135 +++$+++ FALSE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice.
04-631 +++$+++ 28136 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about the Supreme Court's characterization of this as being --
04-631 +++$+++ 28137 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Kaul --
04-631 +++$+++ 28138 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-631 +++$+++ 28139 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Kaul case? I read -- I don't think the Kansas Supreme Court could have been any more clear. It said the legislature amended the legislation to clarify where the incidence of taxation falls. It provided that the incidence of the tax falls on the distributor. Then, in Victa, in connection with the standing issue, because economic burden fell on the retailers, it found that the retailers and -- those other retailers had standing. Kansas could not have been more clear. In Section 3401(f)(3), it defines a "distributor" as someone who receives the product. In 3408(c), it's -- taxes the distributor on the first receipt of the tax. In 3410, it again says it's on the distributor. Two district courts and two courts of appeals found that the legal incidence of the tax was on the distributor. The Kansas Supreme Court said the same thing, the distributor is liable for the tax, pays the tax. The retailer has no liability for the tax. What in the world can Kansas do to make it clearer? Now, the Central Machinery case that's -- that my opponents have been speaking about is a case that was decided under the Indian Trader Statutes with respect to the trading with the Indians, with respect to Central Machinery case, was -- over tractors sold on the reservation for use on the reservation. It fell within the scope of the Indian Trader Statute. But this Court has made clear, in a number of cases, the Indian Trader Statutes would not remotely apply.
04-631 +++$+++ 28140 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I take it Kansas has not indicted the distributor for failing to register under the Indian Trading Statute.
04-631 +++$+++ 28141 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, they're -- it hasn't really been mentioned until the -- I mean, hardly mentioned at all, until the Government decided to -- the United States Government decided to discuss that point.
04-631 +++$+++ 28142 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Aren't there usually two incidents? You talk about the incident of the taxes on a person, but it's also on an event. And what event is -- in your -- in your judgment is --
04-631 +++$+++ 28143 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the statute could not be more clear, Justice Scalia. It is the receipt by the distributor of the fuel. That is what the statute says. It is as plain --
04-631 +++$+++ 28144 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if the fuel --
04-631 +++$+++ 28145 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- as it could be.
04-631 +++$+++ 28146 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- were destroyed by flood or lightning or something like -- before it was resold to the retailer, there would be no tax --
04-631 +++$+++ 28147 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's an exemption for losses like -- one of the Court's questions with respect to a casualty loss or something that -- but it's limited. The liability, nonetheless, exists on the distributor.
04-631 +++$+++ 28148 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are there any incidents in which the distributor would pay the tax if he was not able to resell it to somebody else?
04-631 +++$+++ 28149 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that -- I think the reading of the statute is plain. If the distributor took the fuel, kept it, decided to warehouse it because the costs are going up or something like that, it would still have to pay the tax, because the tax is on the receipt by the distributor. In answer to your question, Justice Stevens, Would those other exemptions, the United States Government be required by the Constitution, or the other States? No, not under this Court's decision in the Blaze case, which, as I understood it, was unanimous. The Fresno case, U.S. vs. New Mexico, it's not a tax on the United States. It's -- or an agency of the United States. So they wouldn't be required. But they make sense, because the sales to other States are for people that drive on other States' highways. The sales to the United States Government is an exchange for almost the same amount of money that comes back. So, there's a rational purpose. It's not discrimination. The tribe makes the point that it's generating real value and reservation value. This is fuel that's used in cars that are -- drive all over the State of Kansas. The casino is there, so people come to the casino. And, under Cabazon, there might be some value added by the casino, which, by the way, is an exempt value created by an exemption from regulation. But the value for someone who puts fuel in their car is so that that car will then drive. And that -- cars that drive, in this case, drive on Kansas highways. This, ultimately is --
04-631 +++$+++ 28150 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Olson.
04-631 +++$+++ 28151 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-631 +++$+++ 28152 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The case is submitted.
04-637 +++$+++ 28156 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument now in Margaret Bradshaw v. John David Stumpf. Mr. Cole.
04-637 +++$+++ 28158 +++$+++ FALSE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: John Stumpf pleaded guilty to the aggravated murder of Mary Jane Stout. The evidence shows he is, in fact, guilty of that crime. The court below, nonetheless, vacated his conviction on habeas review citing two grounds. Its reasoning on each directly conflicts with this Court's opinions and significantly undermines the finality of the hundreds of thousands of State court criminal convictions based on pleas.
04-637 +++$+++ 28159 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Counsel, I -- I think he was given the death sentence. Is that right?
04-637 +++$+++ 28160 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Your Honor.
04-637 +++$+++ 28161 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ At the end of the day. And there was a separate sentencing hearing?
04-637 +++$+++ 28162 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There was a separate mitigation hearing under Ohio law, yes, Your Honor.
04-637 +++$+++ 28163 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And was it argued at that hearing by the State that Stumpf was the triggerman?
04-637 +++$+++ 28164 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the State said that they -- they thought there was evidence to support that. They said, I don't believe it's necessary for this court to conclude he was the actual shooter, and that's in the joint appendix at 186. So the death penalty is appropriate --
04-637 +++$+++ 28165 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it was argued.
04-637 +++$+++ 28166 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The court -- or I'm sorry. The prosecutor argued that there was sufficient evidence to show it.
04-637 +++$+++ 28167 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And was there evidence at the recent habeas hearing that at least one of the sentencers relied on the fact that the judge thought Stumpf was the triggerman and the murderer?
04-637 +++$+++ 28168 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, after -- at the time of the original sentencing hearing there was no other evidence, this new evidence of which he complaining --
04-637 +++$+++ 28169 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
04-637 +++$+++ 28170 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- didn't exist.
04-637 +++$+++ 28171 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
04-637 +++$+++ 28172 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ When it came into being, he then moved to vacate his sentence at the State --
04-637 +++$+++ 28173 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
04-637 +++$+++ 28174 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- court. And the judge there from the original panel --
04-637 +++$+++ 28175 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-637 +++$+++ 28176 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- one of the judges said, it may have made a difference. Of course, they had before them a motion to vacate the -- the sentence at that time, and they denied that motion. So apparently it didn't make a difference to that judge. Two other Ohio courts have independently reweighed all of the evidence and found that the death sentence was appropriate.
04-637 +++$+++ 28177 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I guess my concern actually is more with the sentencing proceeding here, in light of what's happened, than with the guilty plea. And I suppose it's possible that that stands, but conceivably he's entitled to a hearing on the sentencing aspect.
04-637 +++$+++ 28178 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I guess that would be conceivable, Your Honor, although I note that there's only one due process claim he's making. He's making one form of constitutional error claim predicated on the Due Process Clause, and if there was no due process violation with respect to his conviction, which is the claim that he was pressing before the Sixth Circuit, there's similarly no due process violation with respect to his sentence.
04-637 +++$+++ 28179 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why --
04-637 +++$+++ 28180 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you think he has waived any due process claim insofar as it applies to the sentencing? Do you think that's waived? Is that clear?
04-637 +++$+++ 28181 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, I wouldn't say that. In his Sixth Circuit briefs, he does -- in a section that's entitled I hereby challenge my conviction, he does also note in that section that he's got some concerns about his sentencing hearing. So I don't know that he's waived that. But I don't believe that there's a valid due process claim that he has with regard to either his conviction or his sentence.
04-637 +++$+++ 28182 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why do you argue that if there is no due process violation with respect to the actual plea, there is, therefore, no due process violation with respect to the sentence?
04-637 +++$+++ 28183 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because his theory, Justice Souter, is the same with regard to both. He says this -- the use of this --
04-637 +++$+++ 28184 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but we -- we may say the theory really is -- is not sufficiently relevant with respect to the plea but that it is with respect to the sentence.
04-637 +++$+++ 28185 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's conceivable, Your Honor. We understand that the -- we understood the Sixth Circuit opinion to be directed toward his conviction. So the --
04-637 +++$+++ 28186 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I -- no question about that.
04-637 +++$+++ 28187 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the thrust of our arguments before this Court were directed towards the conviction. The other side then raised, oh, the State has waived their claim about the sentencing, and -- and we were just making --
04-637 +++$+++ 28188 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No.
04-637 +++$+++ 28189 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- clear that, A, we haven't, but B, in any event, the due process theory sounds the same in both. And so if there's not a due process problem, with respect to these arguably inconsistent theories, then there's not a due process problem with respect to his sentence either. He hasn't brought any other set of facts --
04-637 +++$+++ 28190 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. I -- I understand that. May I go back just to one factual issue before we go on and forget it? You -- you stated, in response to Justice O'Connor, that the State argued in -- in the Stumpf case that there was sufficient evidence to find that he was the triggerman. Did the State stop there and say, in effect, we don't care whether you find him the triggerman or not? We're just telling you there's enough evidence. I -- I assumed the State went on to say there is enough and you ought to find that he is the triggerman.
04-637 +++$+++ 28191 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, referring to page 187 and 188 of the joint appendix, he says, given those circumstances, although we believe the evidence does prove he was the shooter of Mary Jane Stout, legally, technically, I don't believe it makes any difference when you have two people acting in concert for the joint and unlawful purpose of committing an aggravated robbery and -- and murder results.
04-637 +++$+++ 28192 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did -- did the prosecutor ever say he was the triggerman? The evidence supports it and -- and that's the conclusion that ought to be drawn: he was the triggerman.
04-637 +++$+++ 28193 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He said there's ample evidence from which the court could conclude --
04-637 +++$+++ 28194 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But did he take the second step and say there's ample evidence and he was, in fact, the triggerman and you should so find, or in so many words?
04-637 +++$+++ 28195 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In so many words, Your Honor, in connection with the mitigation phase, in -- in connection with the factual basis hearing even, he put on the evidence saying, you know, Mr. Stumpf says he wasn't the shooter and gives a lot of reasons to discount that evidence. So he's arguing that in fact Mr. Stumpf was the shooter. I think it's a fair implication if he doesn't say the express words, but it's a fair implication. Of course, at that time, there was absolutely no evidence to the contrary. Mr. Wesley had not yet been extradited from Texas. He hadn't even made this alleged statement to Mr. Eastman.
04-637 +++$+++ 28196 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the -- the evidence was Stumpf -- Stumpf himself who said Wesley was the triggerman with respect to Mrs. Stout. But I wanted to ask you a question about -- that -- it relates to the sentencing part and it follows up Justice O'Connor's question. The -- the -- you -- as -- if I understood you right, you said, well, there was a motion that came before two of the three judges that were part of the guilty plea and the sentencing. This was a plea, so no jury trial. It was three judges. One of them had died. The -- the two who remained -- one of them said, but if we had not been satisfied that Stumpf was, in fact, the triggerman, and we were satisfied that he was, in fact, an aider or abetter, that may very well have had an effect on the court's determination whether the death penalty should follow. I'm not saying it would, but it's possible. And then you said, but then he went ahead and voted to deny the motion.
04-637 +++$+++ 28197 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To vacate the sentence, yes, Your Honor.
04-637 +++$+++ 28198 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. But there's no explanation at all. The only expression that we have from that judge is -- he said, well, it's conceivable, although it wouldn't affect guilt, we would have come out with a different sentence, and then going from that statement to nothing, just a denial without explanation. You -- you want us to infer from that silent denial that the judge must have resolved his own difficulty and decided it wouldn't make any difference on the sentence.
04-637 +++$+++ 28199 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, A, I think that's an inference that's supported by the fact that he voted to deny the motion, but B, in any event, there's been an independent reweighing of all of the evidence in the Ohio intermediate appellate court and that court said that -- very specifically said, even if we didn't believe he was the principal -- or principal offender, the actual shooter -- we do believe that. But even if we didn't, the death sentence here would be appropriate. And this Court noted in Clemons that an independent reweighing by an appellate court of the evidentiary record can be sufficient to secure -- or to --
04-637 +++$+++ 28200 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it would be appropriate because the statute permits it. But the decision-maker has three choices. And if the evidence had come in that Wesley was the triggerman, maybe the -- this panel of judges would have done what the jury did in Wesley's case, that is, it's the same crime, but not give the death penalty for it.
04-637 +++$+++ 28201 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice -- Justice Ginsburg, the -- the evidence wasn't available at the time of the original sentence. So the failure to have that part of the record at the time of the original sentencing hearing, of course, can't violate due process. And then the question would be, did something that happened later violate due process? But I just don't think it can be the case that anytime new evidence comes up that might cause a judge to say, boy, if we'd have had that evidence before when we -- when we reached the sentencing decision, we might have reached a different result --
04-637 +++$+++ 28202 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what -- what is the rule if there are two successive -- there are successive trials with different defendants and there can only be one shooter and in each trial it's found that the defendant is the shooter? What should be the rule, or does the -- does the second person get the advantage? Does the State have to begin all over again with both? Or -- or does the State have no obligation to correct either?
04-637 +++$+++ 28203 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Kennedy, I -- I think it depends, at least in part, on what role that finding played. If those two verdicts each had as an essential component this fact, this person is the shooter and this person is the shooter, so that the verdicts are necessarily inconsistent so that we know the State has actually got someone in jail they're punishing that's innocent, we would concede there may be a substantive due process right of the -- against the State because the State at that point --
04-637 +++$+++ 28204 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ By whom? By whom? By which one of the two?
04-637 +++$+++ 28205 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I -- I think that's a great question.
04-637 +++$+++ 28206 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do we flip a coin?
04-637 +++$+++ 28207 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I think the point is probably both would have some kind of claim in that I don't think the State can pursue and convict two people on necessarily inconsistent theories because at that --
04-637 +++$+++ 28208 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why -- why is that? I mean, it seems to me due process requires that there be enough evidence to -- for a jury to find beyond a reasonable doubt that -- that the person was the shooter. And if in -- if there is, indeed, in both cases enough such evidence, it seems to me there is no denial of due process, and that the usual manner of accommodating for that apparent injustice is -- is for the Governor to grant clemency to one of the two, have him figure out which one of the two wasn't the shooter, or to apply for -- for reopening of the -- of the -- of one of cases. But I don't know that there is automatically a due process violation which allows one or the other of the cases -- proper convictions. Each one is fully proper. I don't know that there's a due process violation that allows one of them to be set aside.
04-637 +++$+++ 28209 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I don't know that there is either, Your Honor. We'd be willing to concede that for purposes of this argument because even if there is, it doesn't apply here --
04-637 +++$+++ 28210 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Due -- due process doesn't mean perfection. It doesn't mean that each jury has to always reach the right result.
04-637 +++$+++ 28211 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I agree with that, Your Honor, and I hate to argue against my position, so I -- I do this gently. But at the same time, the court has noted and -- and one of the old saws of American law is -- is it's better one guilty person should go free than that one innocent person should be punished. And if the State knows, as a matter of fact, that it secured two convictions for a crime that only one committed, the State knows at that point that it's punishing at least one innocent person and that might violate --
04-637 +++$+++ 28212 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ When -- when did this new evidence come to light?
04-637 +++$+++ 28213 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The new evidence came to light some 6 months after his plea was entered and after the sentence was announced.
04-637 +++$+++ 28214 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did the other guy confess to a -- kind of a jailhouse snitch?
04-637 +++$+++ 28215 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To -- to a jailhouse informant, yes, Your Honor. And the prosecutor put that evidence on at trial, at Wesley's trial, but it's interesting to note what he did with that evidence at Wesley's trial. He put it on but then in closing very expressly noted that while there's been this evidence, even if you don't believe he's the principal offender, you can still find him guilty of aggravated murder.
04-637 +++$+++ 28216 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it is the case that he argued that -- that you should find him guilty because he was the triggerman. I mean, that was an alternative argument. So the -- I mean, I think what's the -- the concern following Justice Kennedy's question, the concern that I have is not with the -- the guilt or innocence as such here. It's with the sentencing. And as -- it seems to me fair to say that as the record stands now, the State has made two arguments: one that Stumpf was the triggerman, one that Wesley was the triggerman. It has to be the case that one of those arguments, if accepted, would lead to a false result. And the question -- I think the due process question is whether the State can pursue those inconsistent arguments, even if it starts out innocently doing it, but can it pursue two inconsistent arguments knowing that in one case the argument must be for a false result, without there being any kind of -- of process to correct the State's inconsistent positions? What -- I mean, what's your response to that?
04-637 +++$+++ 28217 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, first, I -- I don't think they're -- he was without process. Mr. Stumpf had abundant process within the State system. He got all the evidence --
04-637 +++$+++ 28218 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, he could -- he could get into court, but as I understand it, there was no recognition here that there is -- that there is in fact something wrong with the two inconsistent -- or the two arguments of the State, each of which, if accepted, will necessarily result in one false conclusion.
04-637 +++$+++ 28219 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, the -- again, the intermediate appellate court independently reweighed this evidence and concluded that even if we conclude that Mr. Stumpf is not the shooter, even if that's our -- our conclusion -- it isn't, but even were we to conclude that, the death penalty would still be appropriate here. So there's been an independent reweighing of the evidence minus the mitigating evidence or minus the --
04-637 +++$+++ 28220 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Maybe -- maybe that's enough. Let me, with respect to that, just ask you one final question. And I'm assuming the -- the answer, but I want to be sure. I assume that at the point of this intermediate court's reweighing, the intermediate court was aware of the -- the evidence of -- of -- the hearsay evidence of Wesley's confession and was aware that the State argued in the second case that Wesley was the triggerman. Am I correct?
04-637 +++$+++ 28221 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. He -- the prosecutor, in fact, stipulated to the admissibility of the Eastman and the Wesley evidence from Wesley's trial back into the Stumpf proceeding in the original trial court before the two judges -- the two of the three judges that were remaining at that point, and then --
04-637 +++$+++ 28222 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and I take it also --
04-637 +++$+++ 28223 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That was part of the record on appeal.
04-637 +++$+++ 28224 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- stipulated or represented or admitted, whatever, that in fact the State had argued in the second case that Wesley was the triggerman.
04-637 +++$+++ 28225 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe so, Your Honor. The indictment in Wesley's case included a specification that he was the principal offender, so at the very least, the indictment would --
04-637 +++$+++ 28226 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because of being -- because of being the triggerman.
04-637 +++$+++ 28227 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The only way to be the principal offender under that specification is to be the triggerman. So that -- that's clear from the face of the indictment in -- in Wesley's case that the State had argued that. Now, the jury, importantly in Wesley's case, found that he should be acquitted on that aggravating circumstance. It's not an element of the crime, but it's one of the aggravating circumstances that the State could rely on in seeking the death penalty in Wesley's case, and the jury specifically rejected that aggravating circumstance and -- and found that the State had not proved it beyond a reasonable doubt. Throughout the -- throughout the appellate process, with regard to the sentence, the State's attorney argued that, yes, there's evidence in the record from which you could conclude that he's the actual shooter, but in any event, it doesn't matter. And the -- the State's attorney was correct in that, as a matter of Ohio law, aiders and abetters can both be found guilty of aggravated murder under Ohio law and are subject to the death penalty. The two -- the two aggravating circumstances -- I'm sorry. The one aggravating circumstance that remained after the plea deal turned merely on the reason why Mrs. Stout had been put to death. It did not turn at all on who was the person who put her to death. So as an accomplice, aider, and abetter, with liability for the aggravated murder, he was also subject to the death penalty under that --
04-637 +++$+++ 28228 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, General Cole, isn't there a distinction between eligibility for the death penalty and actually making the decision to impose the death penalty? And it's perfectly clear -- you're dead right, of course. He's eligible under either theory. But is it not likely that the sentencer would be more likely to sentence the defendant to death if the sentencer thought he had been the actual shooter?
04-637 +++$+++ 28229 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I think it's definitely a fact that the court weighs, although here we have evidence that at least one Ohio court took that possibility into account and said even in light of that fact --
04-637 +++$+++ 28230 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
04-637 +++$+++ 28231 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- we still conclude that the death sentence is appropriate. So I don't know that we can say that in this case it in any way would change the outcome. In fact, the record --
04-637 +++$+++ 28232 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, and the original sentencer might -- might not have done the same thing. We don't really know that.
04-637 +++$+++ 28233 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this did go back in front of the two -- two of the three original sentencers and they declined to allow him to vacate his sentence. The intermediate appellate court then independently reweighed and expressly said, whether he's the shooter or not, he's eligible for the death sentence. So there have been a number of Ohio judges that have --
04-637 +++$+++ 28234 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ As I understand the facts, even if he hadn't shot the wife to death, which was what the prosecution was for, he had tried to kill the husband, shooting him twice in the head?
04-637 +++$+++ 28235 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Twice at the head from essentially point-blank range, Your Honor.
04-637 +++$+++ 28236 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ From point-blank range.
04-637 +++$+++ 28237 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-637 +++$+++ 28238 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And then there was some discussion that the -- that the lying, seriously wounded husband heard between the two perpetrators, and then there was shooting of the wife. Whether he pulled the trigger or not, could that possibly make a difference? He did pull the trigger trying to kill the husband. Is it difficult to -- to think that -- that he willingly allowed his -- his cohort to do the same to the wife? I -- I can't imagine it would make any difference.
04-637 +++$+++ 28239 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we agree and that certainly falls well within the -- the range of culpability that this Court set out in Tyson as --
04-637 +++$+++ 28240 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There's no doubt that they could have -- the trier of fact could have reached the same conclusion. But I guess the problem is that when you go back to reopen the evidence the second time and the judges are sitting there, someone might have thought, well, the husband didn't die, and we don't know if he actually pulled the trigger on the wife. And we're trying to guess what those judges would have done if they thought that. I don't know. It could be that people don't want to impose capital punishment without thinking I know that this person has killed somebody, and if that's so, they wouldn't have reached the same conclusion. Now, I guess that's the problem because at that time on reopening, the State told that panel of judges pretty clearly by implication that the State thought that the evidence did support Stumpf having pulled the trigger, even though at that point the State knew and indeed referred to the statement to -- you know, the confession and all the things in the second trial. Now, what do you think about that problem?
04-637 +++$+++ 28241 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first, Your Honor, I don't think we have to guess what the judges would do because the judges did what they did. They denied the motion to vacate and then --
04-637 +++$+++ 28242 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They denied it, but as I read what the Ohio court said after the denial, I thought it did probably rest upon their determination that Stumpf had pulled the trigger.
04-637 +++$+++ 28243 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And certainly the intermediate --
04-637 +++$+++ 28244 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did you think that?
04-637 +++$+++ 28245 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the intermediate appellate court expressly said that its determination did not turn on who had pulled the trigger, that they would have reached the same conclusion independent of who pulled the trigger.
04-637 +++$+++ 28246 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the panel -- the panel that didn't reopen -- there was no reopening because they denied the motion. But they didn't say one way or another.
04-637 +++$+++ 28247 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's the Supreme Court of Ohio that then I think I got my impression from, and of course, they don't know either.
04-637 +++$+++ 28248 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-637 +++$+++ 28249 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The fact is we don't know what that original panel thought.
04-637 +++$+++ 28250 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's --
04-637 +++$+++ 28251 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it isn't that -- isn't one of the answers to Justice Breyer's questions that you -- you never know exactly what a fact finder would do. What you have to deal with are reasonable likelihoods and reasonable possibilities.
04-637 +++$+++ 28252 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's --
04-637 +++$+++ 28253 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And when -- and when you have someone who shoots the first person and is obviously attempting to kill him, and then there's an apparent discussion -- not -- not 100 percent clear that those were the two voices. It's pretty clear because there were only two other people there. So we talk about reasonable likelihoods, don't we?
04-637 +++$+++ 28254 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would think that's --
04-637 +++$+++ 28255 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Absolutely right. Of course, that's right. But we can't be sure what they would have done, and because we can't be sure what they would have done, I guess it might well have made a difference that the State told that panel we think Stumpf pulled the trigger.
04-637 +++$+++ 28256 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
04-637 +++$+++ 28257 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And that's what gives rise to the problem in the case.
04-637 +++$+++ 28258 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Justice Breyer, I think it -- it's always going to be the case that after a sentence is announced, there's the possibility that new evidence might come up that would cause us to say we can't know for sure what this panel would have done with that new evidence. And so there needs to be --
04-637 +++$+++ 28259 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the State say when it comes to the panel, the reopening panel, we'll tell you something. We think, indeed, that's what we argued, that the State -- in the last case we argued that Stumpf didn't pull the trigger, that the balance of evidence is against that, but nonetheless, he should be sentenced to death. That would make your position absolutely consistent with what you argued in that second trial with Mr. --
04-637 +++$+++ 28260 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Wesley.
04-637 +++$+++ 28261 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Wesley.
04-637 +++$+++ 28262 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Your Honor, I'm not sure that that would have been the State's position. I don't believe after the Wesley trial, that the balance of the evidence necessarily showed that Wesley was the shooter versus Stumpf. That was one person's testimony.
04-637 +++$+++ 28263 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. Now, the -- the jury in the Wesley trial rejected that position.
04-637 +++$+++ 28264 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They did, Your Honor, and Mr. Wesley -- it isn't as though all the new evidence is in Mr. Stumpf's favor. Mr. Wesley, the only other eyewitness who's testified, came and sat on the witness stand and said, yes, Mr. Stumpf pulled the trigger. At the end of the day, the only two people who know exactly who pulled the trigger are Mr. Wesley and Mr. Stumpf, and they have every reason to point their finger at the other person. So if that's --
04-637 +++$+++ 28265 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, but wait. Who did the -- who was the last person the State pointed its finger at? You -- you told me in -- in response to earlier questions that when the case back before the two remaining members of the panel, that in fact the State brought the -- called to their attention the fact that Wesley had confessed and -- and it was -- it was clear one way or another that -- that they had argued in Wesley's trial that he was the triggerman. When they -- at that point when they are back before the two remaining members of the panel in Stumpf's case, did the State say we now go back to our original position that Stumpf was the triggerman and Wesley wasn't, or did they say we think -- we think Wesley is the triggerman and Stumpf wasn't? Or did the State simply stand there agnostic?
04-637 +++$+++ 28266 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The State -- and I would encourage the Court to look at the State's response to that motion, which is in joint appendix at 126. But what the State says on 126 is -- essentially there's a lot of agnosticism in the response. It says, look, there's this new evidence. We don't know. It seems like from this record you could conclude that Stumpf was the shooter, but then the State says even deleting that finding, even if you don't agree with us, or even if you don't agree that's the case, because the State isn't really saying this is our position anymore, even if you delete that finding, there's still sufficient evidence here to support a death penalty against Mr. Stumpf.
04-637 +++$+++ 28267 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Could -- could I get one fact? Wesley didn't confess or we don't know that he confessed. He -- he said he wasn't the shooter at trial, didn't he?
04-637 +++$+++ 28268 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor.
04-637 +++$+++ 28269 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what was introduced was -- was the testimony of one of his jailhouse companions who said that Wesley had told him that he was the shooter. So who was the shooter was -- was as much an issue in Wesley's trial as it was in Stumpf's trial, wasn't it?
04-637 +++$+++ 28270 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As the court expressly -- or as -- as the State expressly noted in its closing in that case --
04-637 +++$+++ 28271 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but the State's position was that the jailhouse informant had told the truth, wasn't it?
04-637 +++$+++ 28272 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In closing --
04-637 +++$+++ 28273 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ At the trial.
04-637 +++$+++ 28274 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In -- in closing at that trial, Your Honor, the -- the prosecutor was relatively agnostic, frankly. He said, look, you could conclude --
04-637 +++$+++ 28275 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He at least put in the evidence.
04-637 +++$+++ 28276 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He -- he put in the evidence, and then he said, look, from this evidence you could conclude that Wesley was the shooter. You could also --
04-637 +++$+++ 28277 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Normally you don't put in evidence unless you think it will support a proposition that you -- that you're in favor of.
04-637 +++$+++ 28278 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, and Your Honor, I -- I think if he could show Wesley was the shooter, that would, of course, support a conviction against Wesley, but he recognized that the jury didn't necessarily need to believe that, and in fact, he wasn't relying on that in order to secure the conviction.
04-637 +++$+++ 28279 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask you one final question? As a matter of due process, why shouldn't the State -- after learning of the supposed admission in Wesley, after taking Wesley's position, why shouldn't the State, when it gets back to the Stumpf case before the remaining two members of the panel, have to fish or cut bait on a position and say we think he's the triggerman and we want you to affirm on that basis, or we don't think he was the triggerman because we've taken this other position? Why can the State, as a matter of due process, stand there agnostic?
04-637 +++$+++ 28280 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because, Your Honor, the State is not the fact finder. The judge is the fact finder. The State needs to put the evidence in and allow counsel for the defendant, counsel for the State to argue positions, and let the fact finder make the ultimate determination. With the Court's permission, I'd like to reserve the rest of my time.
04-637 +++$+++ 28281 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Very well, Mr. Cole. Mr. Freedman, we'll hear from you.
04-637 +++$+++ 28283 +++$+++ FALSE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In light of the questioning, I'd like to indicate what exactly was argued below and what was the rulings. In -- in the first Stumpf trial, they -- they argued that there was, quote/unquote, ample evidence to point --
04-637 +++$+++ 28284 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Who is they?
04-637 +++$+++ 28285 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The prosecutors. I'm sorry. Mr. Chief Justice, and may it please the Court: The prosecutors argued that there was ample evidence, quote/unquote, pointed --
04-637 +++$+++ 28286 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Freedman, it wasn't a trial. It was a -- it was a plea hearing.
04-637 +++$+++ 28287 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, but there was -- but -- but in Ohio there's a requirement to have an actual prove-up of the aggravating factor itself. And they argued that there was ample evidence, quote/unquote, pointed to Stumpf as the killer, and that's in joint appendix 186 to 187. Ultimately they -- and they urged that he was the shooter. Then when the Wesley trial took place, at the trial they did the same thing. They used the same terms, quote/unquote, ample evidence that Wesley was the shooter. They urged a finding that Wesley was -- was the shooter.
04-637 +++$+++ 28288 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I thought the prosecutor in closing in the Wesley trial said, it could have been Stumpf, but it doesn't make any difference.
04-637 +++$+++ 28289 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They --
04-637 +++$+++ 28290 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought they argued both?
04-637 +++$+++ 28291 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- they really didn't argue both. They -- they -- effect -- that was the throwaway argument. They came in there -- what -- what I think is critical in both trials and later on in the proceedings is what they were urging, what they were recommending the -- to the jury.
04-637 +++$+++ 28292 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but it's at the bottom of page 187. We're on this same point. Given these circumstances --
04-637 +++$+++ 28293 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what page is that?
04-637 +++$+++ 28294 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ 187 like the -- of the joint appendix. Given these circumstances, although we believe the evidence does prove he was the shooter, I don't believe it makes any difference when you have two people acting in concert for the joint and unlawful purpose of committing an aggravating robbery. That's at the top of 188.
04-637 +++$+++ 28295 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the -- but they urged. They recommended. They didn't come in and say -- and throughout this proceeding -- we don't know who the shooter is. We don't care who the shooter is. They both deserve the death penalty. They -- they were -- the prosecutors were aware that the -- the death penalty is what stirs the pot here, and so they were urging somebody to be the shooter to get the death penalty. If this wasn't a death penalty case, I don't think they -- it would have mattered who killed who. And so they were urging --
04-637 +++$+++ 28296 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I think there's quite a difference in -- in case A where you say our position is that Stumpf was the shooter, pure and simple. That's it. In case B, they say we think Stumpf was the shooter. We're not 100 percent sure, but he should get the death penalty. The alternative is before the sentencer and the sentencer can make that determination.
04-637 +++$+++ 28297 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but they took the position of actually urging, making a recommendation. I -- I don't think there would be a due process violation if they said, we don't know. They didn't take that. They -- they urged a position, and I think that's the key factor when the -- in this case.
04-637 +++$+++ 28298 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what was the due process violation here? You're talking about due process in the second trial, in --
04-637 +++$+++ 28299 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The due process violation, Your Honor, would be --
04-637 +++$+++ 28300 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was in the first trial?
04-637 +++$+++ 28301 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, of course, it wasn't in the first trial.
04-637 +++$+++ 28302 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's the trial that you're trying to get set aside here.
04-637 +++$+++ 28303 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We submit that the due process error is at the motion to vacate. At that time, again, after taking the position that Wesley was the shooter, they came back and urged that -- that Stumpf was the shooter, that the record was ample enough to support Stumpf being the shooter --
04-637 +++$+++ 28304 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it was. They're -- they're just -- they're just arguing that the evidence we introduced supported the jury verdict. What -- what is wrong with arguing that? There's --
04-637 +++$+++ 28305 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because they've taken inconsistent positions. The -- the violation here is in the positions itself, not in necessarily the results.
04-637 +++$+++ 28306 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Not -- not if they said in the second trial it doesn't matter whether he's the shooter.
04-637 +++$+++ 28307 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think they did more than it didn't -- it just didn't matter. I think they urged the position. It would -- I mean, a lot of the cases in the lower courts have made that distinction when the -- when the State comes in and says, we don't know what happens. We can't tell you who the shooter is or not, and we don't care who the shooter is.
04-637 +++$+++ 28308 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose the State had said on motion for resentencing in Stumpf's trial, Your Honor, we took the position that Wesley was the shooter in Wesley's trial. The jury disbelieved that. We accept the jury's verdict. Our position now is that -- that Stumpf was the shooter. We've learned from the jury verdict in the Wesley trial. We've had 12 people. They heard the evidence. We'll accept that. Any difference in that case and what we have here?
04-637 +++$+++ 28309 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's different, but that's not what happened. It's different if they've taken -- if they've taken the position --
04-637 +++$+++ 28310 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It -- it would -- in the case I put, would your argument be the same, and if so, why?
04-637 +++$+++ 28311 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I put it that it's not the same because they -- first of all, in reality, that's not what they did. But let's talk in terms of the hypothetical that -- that you've asked me. It is that you have to also look at what actually happened in the Wesley trial to determine due process for Stumpf because Wesley -- what happened in this case through the whole circular reasoning, Wesley didn't get the death penalty here because they were informed that Stumpf pled guilty, was found to be the principal offender, and was sentenced to death. Now --
04-637 +++$+++ 28312 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That was introduced by Wesley, not by the prosecution.
04-637 +++$+++ 28313 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. The prosecution in the Wesley trial originally did not want the -- the jury to hear at all what happened in Stumpf's trial. They wanted to argue the complete -- that -- that Stumpf's verdict was not even -- should be informed. The sentence of death shouldn't be informed or the sentence of death. And in fact, that's when they started to throw in a little bit of the alternative theory after that evidence did subsequently get in. The record shows that they originally did not get it in and they allowed the defense counsel -- prevented defense from getting -- in the Wesley trial from getting in the evidence of the Stumpf trial.
04-637 +++$+++ 28314 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Freedman, you're trying to read back now into what apparently you recognize is -- is not a flawed initial sentencing hearing.
04-637 +++$+++ 28315 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-637 +++$+++ 28316 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it might be more persuasive if the trier were a jury when the motion to vacate is made, but these are judges whose business it is to preside over these kinds of cases. They presided over that first hearing and now the same prosecutor -- was the same prosecutor in both?
04-637 +++$+++ 28317 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
04-637 +++$+++ 28318 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Comes back to them and says, judges, don't vacate the sentence that you yourself entered. It's -- given that we're dealing with sophisticated judges, the same panel in both episodes, it's a little hard to -- to see where the due process violation is.
04-637 +++$+++ 28319 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The due process violation is that at the minimum, assuming that -- that a weighing is even appropriate here, they never weighed it, and clearly any indication that there was a waiver -- a -- a weighing of whether Mr. Stumpf would be put to death as an aider and abetter. They never took Eastman's testimony as true and -- and the prosecution's position as true, and then ultimately said it would make no difference.
04-637 +++$+++ 28320 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, they didn't have to take it as true. As I understand it, when they went back before the -- the two original judges on the motion to vacate, they didn't have to take the -- the testimony about the jailhouse admission as true, and they didn't have to take the State's position at the Wesley trial as true. It was evidence. It was before them. They were in -- they were required to consider it. But as I understand it, the State at that point essentially was -- was agnostic. The State said, you know, this is what happened, this is what we said, this is what the jury did in the second trial, but regardless of how you determine -- of -- of any determination about triggerman, this man Stumpf still deserves death, so don't vacate the sentence. And -- and there was nothing I guess -- number one, there doesn't seem to be at that point a -- a problem with the State taking inconsistent positions, i.e., with its position in -- in the -- in the Wesley case, and there doesn't seem to be any -- any lack of candor. There may be a -- a lack of initiative on the State's part to fish or cut bait, but there's no lack of candor. So where does the due process violation come at that point?
04-637 +++$+++ 28321 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We submit the due process violation comes at the time of the motion to vacate. We urge -- we're urging that they've not take an agnostic position as prosecutors. They're -- they're urging again saying the -- the evidence is ample to support that -- that Stumpf was -- was the shooter.
04-637 +++$+++ 28322 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it -- I mean, that -- that statement is true, I take it.
04-637 +++$+++ 28323 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but they're also urging a position. The State at some point should take a position on what the evidence is. At that position -- at that point, after urging that Mr. Wesley is the shooter, they -- were they untrue? Were they -- I mean, the prosecutors at that point maybe then -- if they were believing that -- that Eastman was testifying truthfully, why wouldn't they now believe that he was testifying truthfully now in the motion to vacate?
04-637 +++$+++ 28324 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, because it seems to me they -- they would have two arguments. One is even if he wasn't the shooter, you -- you should -- you would have imposed the death penalty anyway, but argument number two is, wait a minute. You know, yes, we -- we don't know who the shooter is but there's a -- there was no violation of due process here. There was plenty of evidence for you to find that he was the shooter. That evidence is still there. Do you expect them to throw away that argument? I mean, it's -- it's very true and it goes to whether this conviction and sentence deserve to be set aside.
04-637 +++$+++ 28325 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We -- we proffer to the Court that they shouldn't be taking inconsistent positions as to -- in a death penalty case in the sentencing --
04-637 +++$+++ 28326 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What should -- what -- was Wesley then denied due process? Because at the time of Stumpf's initial plea hearing, Eastman hadn't appeared and there was only Stumpf's testimony that he was not the triggerman and the prosecutor's evidence that he was. Then we get to Wesley, and Eastman shows up. The prosecutors have already taken the position that Stumpf was the triggerman. Is Wesley denied due process because they're taking inconsistent positions at his trial?
04-637 +++$+++ 28327 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I don't believe that Wesley was denied due process. They discovered the evidence afterwards and ultimately at that trial they had -- the Wesley jury had the opportunity to hear what happened in the Stumpf trial, and they were able to weigh that case along with the evidence of the Stumpf finding and sentence of death and the finding that he was the principal offender. That's something we submit has not happened in this death penalty case.
04-637 +++$+++ 28328 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, do you concede that the evidence presented in the Stumpf proceeding was sufficient to support a finding of guilt as an aider and abetter? Was there enough evidence that the fact finder could so find?
04-637 +++$+++ 28329 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Without the Wesley evidence, I -- I -- at the initial trial, I certainly would concede that.
04-637 +++$+++ 28330 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right, right.
04-637 +++$+++ 28331 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As -- as to -- as to whether the evidence that you learn from the Wesley trial -- that's a much closer question because the -- the aggravating factor in this case --
04-637 +++$+++ 28332 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ She asked as aider or abetter, not as shooter.
04-637 +++$+++ 28333 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay, all right. I'm just -- that's correct.
04-637 +++$+++ 28334 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And as to that, it seems to me the guilty plea can stand and the only question that, it seems to me, I would have would be with the sentencing, and I'm not sure that has to be overturned.
04-637 +++$+++ 28335 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-637 +++$+++ 28336 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it would help to focus on that.
04-637 +++$+++ 28337 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
04-637 +++$+++ 28338 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did you address, on behalf of Stumpf, some allegation that he has to be resentenced?
04-637 +++$+++ 28339 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, and that's what the Sixth Circuit --
04-637 +++$+++ 28340 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that still before us?
04-637 +++$+++ 28341 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that is correct.
04-637 +++$+++ 28342 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or has that been subsumed somehow?
04-637 +++$+++ 28343 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. That's before you. In fact, there's a -- there's a question of whether they even challenge that. But clearly, that the sentence by the Sixth -- the sentence was challenged by the Sixth Circuit and found to be defective and a violation of due -- of due process, and that's in the cert --
04-637 +++$+++ 28344 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought a State appellate court had effectively reweighed and effectively resentenced, saying that this additional evidence would, in our view, have made no difference. And we -- we allow that to happen all the time. We speculate as to what the -- what the sentencer would have done had an invalid factor not been there. I mean, when -- when a -- an aggravating factor is -- is invalidated, the State supreme court can determine, you know, whether the same sentence of death would have been imposed even without that aggravating factor. Why is this any different?
04-637 +++$+++ 28345 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well -- well, I'd like to ask -- answer that in two ways. First, the -- we would submit that a reweighing isn't necessary. This is not like vacating an aggravating factor. This is determining a constitutional error of due process. But let's assume for the moment that reweighing is -- is adequate. There was no reweighing, proper reweighing, in either the appellate court or the Ohio Supreme Court. The -- the appellate court, which is the intermediate court in Ohio, came out and said both Wesley and Stumpf were principal slayers as if they were both shooters. And the whole opinion is hinged on the assumption that Mr. Stumpf pled guilty to being the shooter. If you -- I mean, that's -- we submit that's just a fair reading of the opinion. And also, if you go to their main opinion, which is the final opinion, which this Court reviews, the Ohio Supreme Court -- they did the same circular reasoning. Ultimately they said he pled guilty. He was the shooter, and therefore, Eastman's testimony will have little weight as hearsay to -- to vacate the death sentence. They never independently weighed the case saying, let's take Eastman as true, let's look at this case as an aider and abetter --
04-637 +++$+++ 28346 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is your best case, Mr. Freedman, for the idea that an inconsistency, such as you say was present here, is a violation of due process?
04-637 +++$+++ 28347 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The best case we cite in our brief is Green v. Georgia.
04-637 +++$+++ 28348 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which one?
04-637 +++$+++ 28349 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Green v. Georgia where they came in with inconsistent positions.
04-637 +++$+++ 28350 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Freedman, you've -- you've argued just a second ago that both of the appellate courts decided the case or went through so-called reweighing on a false premise that he had pleaded guilty to being the shooter. Let me go back to the -- to the two remaining members of the original trial panel. I take it they did not make that -- in your judgment that error.
04-637 +++$+++ 28351 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In all candor, I don't know. There's no finding. They simply said denied.
04-637 +++$+++ 28352 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. Let me -- let me ask you what your position would be if a hypothetical Justice Kennedy suggested earlier in the argument were true. What if the State had gone back at the -- at the hearing before the original two in response to the motion to vacate and had said, we did argue in the Wesley case that he was the triggerman? The jury rejected that argument. They found that -- that he was not. We've -- we've learned from -- from our own experience and -- and we now no longer think that -- that the evidence from the jailhouse informant should be accepted. We're back to the position that we took in the -- at the Stumpf sentencing hearing originally, that -- that he was the triggerman. If the State had taken that position, would you have a due process claim?
04-637 +++$+++ 28353 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ On -- on this -- on this record, we would have a due process claim for twofold. We submit that the -- that the error is in the attempt not necessarily the success, and particularly in the --
04-637 +++$+++ 28354 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm -- I'm not getting it. What do you mean?
04-637 +++$+++ 28355 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean -- I mean, it's -- it's that they honestly believed that Wesley -- that in the Wesley trial, that Eastman testified truthfully. They believed that.
04-637 +++$+++ 28356 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, can't they -- can't they profit from the jury's verdict?
04-637 +++$+++ 28357 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Perhaps, but not in this particular case because what the jury weighed in Wesley was not only Eastman's testimony, they weighed the fact that Stumpf pled guilty, was found to be the principal offender, and was sentenced to death. That's a -- I mean, that's going to lead to -- I -- I -- maybe I'm off base here, but that's going to lead a jury to come out in a conclusion to find Wesley the aider and abetter and not --
04-637 +++$+++ 28358 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The jury simply decided they didn't want to sentence two people to death for the same offense.
04-637 +++$+++ 28359 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. I mean, they already had the principal offender. They already had somebody sentenced to death for it.
04-637 +++$+++ 28360 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can I ask you a procedural question here? When I read the -- the Ohio Supreme Court opinion, my impression of their due process part of it is that they found a violation because of the inconsistency between the Wesley trial and the Stumpf sentencing proceeding. When you started to talk to Justice Scalia, you agreed that couldn't be right. Rather, you said there is an inconsistency between what the prosecutor said at the Wesley trial and what the prosecutor said when Stumpf made his motion to vacate. Now, if that's so, I'm not sure that the Ohio Supreme Court or the lower courts have addressed that question to determine whether they really were inconsistent, and if so, what or why or what difference it made. But I haven't read the record thoroughly, and my impression might be wrong. So I'd appreciate your telling me what are the facts there.
04-637 +++$+++ 28361 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They -- they argued generally in -- in the record, and it was -- it was somewhat cryptic. They argued that it was unfair --
04-637 +++$+++ 28362 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Who is they?
04-637 +++$+++ 28363 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. I apologize. The -- the defense counsel.
04-637 +++$+++ 28364 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not interested in what defense counsel did or did not say. I'm interested in what the Ohio courts did or did not say.
04-637 +++$+++ 28365 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
04-637 +++$+++ 28366 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And my point there is my -- do I repeat it or do you have it?
04-637 +++$+++ 28367 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I have it now, yes. The -- the Ohio -- the Ohio Supreme Court simply -- simply used -- simply used some sort of circular reasoning. They -- they hung to the position that Stumpf was the shooter, and then after that --
04-637 +++$+++ 28368 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Let's go to the circuit court of appeals. When I read the decision of the circuit court of appeals in the due -- what -- what am I reading, which is -- this is in the Sixth Circuit Court of Appeals.
04-637 +++$+++ 28369 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
04-637 +++$+++ 28370 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They went on both grounds, first the confession -- sorry -- the guilty plea, and second, the inconsistency. Now, there I thought that the Sixth Circuit Court of Appeals was -- now, I think I misspoke because I think that's where I see the problem.
04-637 +++$+++ 28371 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
04-637 +++$+++ 28372 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You understand what the problem is or shall I --
04-637 +++$+++ 28373 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I see it. You want to know somewhere in the Sixth Circuit opinion?
04-637 +++$+++ 28374 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The Sixth Circuit seemed to be addressing the inconsistency between the sentencing proceeding of Stumpf and the Wesley trial. Well, you say the inconsistency we should focus upon is between the Wesley trial and the motion to vacate. And I think you're right about that because I can't imagine the other being a problem.
04-637 +++$+++ 28375 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I -- maybe I should clarify. I -- I think that you have to compare the Wesley trial with the Stumpf trial.
04-637 +++$+++ 28376 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's relevant in terms of evidence, but I think you're asking us to say that there is a due process violation because of the inconsistency between what the prosecutor said at the Wesley trial and what the prosecutor said when Stumpf made his motion to vacate. Am I right?
04-637 +++$+++ 28377 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-637 +++$+++ 28378 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. I'm asking you if the Sixth Circuit or the Ohio courts has addressed that question.
04-637 +++$+++ 28379 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm uncertain. I -- I think they did it in a generic fashion.
04-637 +++$+++ 28380 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So I read this. You can't point to anything in which they have addressed that question. My quick reading of it -- I couldn't find anything in which they addressed that question. And if that's so, what should we do?
04-637 +++$+++ 28381 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, as an -- as an alternative, the Court could remand back to have the Sixth Circuit --
04-637 +++$+++ 28382 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did you raise that argument before the Sixth Circuit, the one that you're making now?
04-637 +++$+++ 28383 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With absolute certainty, Mr. Chief Justice, yes, because they asked the same questions. They asked where did the error occur, and that the line of the questionings were almost -- on that point was identical. They asked questions where did the error come, and of course, it wasn't in the first trial. The error occurred at the motion to vacate.
04-637 +++$+++ 28384 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What if -- what if Wesley comes in with a -- with a motion to vacate now and -- and he points to the inconsistency with the -- with the Stumpf trial? Would he also be entitled to get his sentence vacated because of the same inconsistency that you're pointing out?
04-637 +++$+++ 28385 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, he certainly wouldn't have the death sentence. That was -- is solely as to the guilt part of the case, Justice Scalia?
04-637 +++$+++ 28386 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-637 +++$+++ 28387 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He might. He might because the -- the -- I mean --
04-637 +++$+++ 28388 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So a jury, having found both of them guilty beyond a reasonable doubt and possibly on a basis that -- or not a jury but the judges and possibly on a basis that has nothing to do with whether they were the shooter, you think both of them are entitled to have the death sentence vacated. I think that's extraordinary.
04-637 +++$+++ 28389 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in all due respect, only one has the sentence --
04-637 +++$+++ 28390 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which one? I mean, doesn't Wesley have just as much of a complaint as your client does?
04-637 +++$+++ 28391 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not -- not as to the death -- not as to -- not as to the death sentence, no.
04-637 +++$+++ 28392 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why?
04-637 +++$+++ 28393 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Why? One, he didn't -- let's assume arguendo that he received the death sentence. He had an opportunity --
04-637 +++$+++ 28394 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought Wesley didn't receive a death sentence.
04-637 +++$+++ 28395 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, he did not. That's what -- but you --
04-637 +++$+++ 28396 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. That's -- that's my mistake.
04-637 +++$+++ 28397 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. He didn't receive the -- the death penalty. What would his argument be with respect to guilt or innocence? It seems to me that the issue only goes to penalty.
04-637 +++$+++ 28398 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's still an issue out there because this is killing a witness. As -- he would have a tougher role. I don't think Wesley would -- would have much of a chance. The -- the version of Mr. Stumpf's facts, whether it's a difficult row to hoe is that he -- he drops the gun. That was one of the -- and -- and shortly leaves the scene after that. So that he -- there's no intent, notwithstanding Justice Scalia's position that you -- attempt to shoot Mr. Stout, that he's automatically -- the specific intent is inferred. But it's not absolutely clear, leaving the scene, that the intent could be inferred to kill another witness.
04-637 +++$+++ 28399 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's Stumpf's case.
04-637 +++$+++ 28400 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, that's correct.
04-637 +++$+++ 28401 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. So I mean --
04-637 +++$+++ 28402 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So I'm saying that he would not --
04-637 +++$+++ 28403 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't see where Wesley --
04-637 +++$+++ 28404 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Wesley would not have -- Wesley would not have that scenario under --
04-637 +++$+++ 28405 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So -- so Wesley would have neither a -- a due process claim with respect to sentence nor with respect to guilt.
04-637 +++$+++ 28406 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. That's correct.
04-637 +++$+++ 28407 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But now your -- your part about the guilt, the Sixth Circuit agreed with you because it vacated not only the sentence, but the conviction. And what is your argument that the conviction is infirm?
04-637 +++$+++ 28408 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and what they -- they deduced from that is that the -- the evidence of the Wesley trial -- their position is that -- and the position that -- that the prosecutor took and the evidence that Eastman took, that there would be no specific intent as to the killing of -- of Mary Jane Stout inferred from the shooting of Norman Stout because he dropped the gun. I mean, you don't -- but there's no -- in -- in Ohio a plan is required. There's no foreseeability or reckless disregard for the death -- for the eligibility for the death penalty. It's one of the few States.
04-637 +++$+++ 28409 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I thought the -- the specific intent element would be satisfied if -- if they, by plan, went to the scene with -- with deadly weapons.
04-637 +++$+++ 28410 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe under Ohio law that that's not correct. I mean, it's one of the few States. And I believe even the cases that are cited by the State would infer that.
04-637 +++$+++ 28411 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought the State argued that knowledge -- that there's this plan, and they had a common design to rob. Is that right? And then the State said that common design plus knowledge that an inherently dangerous instrument would be employed to perpetuate the felony or that the felony and its manner of accomplishment would be reasonably likely to produce death. That's what the State argued was the law of Ohio.
04-637 +++$+++ 28412 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I -- I believe that they needed a plan for -- for the killing of a witness. They needed that plan at the time for killing the witness. It's not enough just to plan the robbery for the specific intent. And -- and they -- in the Wesley trial, I want to refer you to page --
04-637 +++$+++ 28413 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did -- did any judge say that, any judge on the Sixth Circuit say that that was the Ohio law?
04-637 +++$+++ 28414 +++$+++ TRUE +++$+++ MR. FREEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe so. That's my reading of the Sixth Circuit opinion. They said that there was an element of -- of intent that was -- I believe that's the -- the way I interpret the holding. I would like to refer you just to page 295 of the joint appendix, even the last sentence or so in the first paragraph. They imply that in the Wesley trial, talking about the same scenario, that there's not necessarily a plan coming in to kill the witnesses. There would have to be a plan while they're in the house. And -- and the scenario of Mr. Stumpf dropping the gun I believe is arguably that there's no specific intent. I -- I would just like to sum up and indicate that -- that the State argued in both cases urging the death of two individuals based on killing the same person, and ultimately there was not adequate review in Mr. Stumpf's case indicating that he would have gotten the death penalty notwithstanding Eastman's testimony, notwithstanding their position that he would have gotten the death penalty as an aider and abetter, which is a rather rare circumstance not only in Ohio but also in this country.
04-637 +++$+++ 28415 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Freedman. Mr. Cole, you have 3 minutes remaining.
04-637 +++$+++ 28417 +++$+++ FALSE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, to respond to your question, under Ohio law you do not need to -- to plan to kill the witness in order to have specific intent for aggravated murder. I would refer the Court to the In re Washington and State v. Scott cases that we cite in our brief that say that participation in an aggravated robbery where that's going to be done through force or violence or in a manner reasonably likely to result in death is sufficient to support a -- an intent -- a -- an inference of specific intent. So there's -- there's no need to find that they planned to kill the witnesses. If -- if I heard Mr. Freedman correctly, he admitted that Wesley would not have a due process argument here because he said the fact finders were apprised of Mr. Stumpf's proceedings. Well, exactly the same is true in Mr. Stumpf's case. As soon as that testimony became available, as soon as Mr. -- as the prosecutor had knowledge of Mr. Eastman's testimony, that testimony was then placed back in the record for further proceedings in the Stumpf matter. The prosecutor made arguments, but I don't think that the Due Process Clause requires --
04-637 +++$+++ 28418 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You -- you mean at the hearing on the motion to vacate.
04-637 +++$+++ 28419 +++$+++ TRUE +++$+++ MR. COLE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Hearing on the motion to vacate and further appellate review. I don't think the Due Process Clause requires the State to admit the ultimate truth of everything that Mr. Eastman testified to at that other trial. The question was did they have a good faith basis for putting him on, and they did. And did they have a good faith basis then for arguing that notwithstanding what he said, that the conviction and the sentence in Mr. Stumpf's case were appropriate? And I believe the record supports that they did have a good faith basis for making that argument. If we look at the arguments they made, they were arguments in the nature of, look, there's this evidence in the record. You may believe it, you may not. Either way, Mr. Stumpf is correctly eligible for the death sentence under Ohio law and that sentence is appropriate. And the courts found, based on that argument, that Mr. Stumpf had appropriately been sentenced to death. This Court has noted that the principal function of habeas is to assure that no man has been incarcerated under a procedure which creates an impermissibly large risk that an innocent person will be convicted. Well, we don't have that risk here. Stumpf has knowingly and voluntarily pled guilty, removing any risk about that. And if we look to this sentencing hearing, there's no risk that he received an impermissibly large sentence because the prosecutor made the evidence available, and Stumpf's counsel used that evidence and argued it, and the court simply rejected it. If the Court has no further questions, I'll stop. Thank you.
04-637 +++$+++ 28420 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Cole. The case is submitted.
04-6432 +++$+++ 28424 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument now in Aurelio Gonzalez v. James Crosby. Mr. Rashkind.
04-6432 +++$+++ 28426 +++$+++ FALSE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: We confront today the Eleventh Circuit's categorical and jurisdictional prohibition of rule 60(b) in habeas corpus cases absent fraud. That is a rule that has been rejected by nearly all of the other circuits and, in fact, has been rejected by the United States in its amicus brief filed in this case. We urge the Court to adopt instead the approach of the other nine circuits that have commented on this issue, the functional approach, in which a court is deemed to examine each motion individually to determine whether or not the motion comports with both rule 60(b) and AEDPA. I think the test we proposed here is a fairly simple one, although I'm not sure in the briefing it comes across as being as simple as it really is, but the test we are proposing, as opposed to the test proposed by the United States, is the one being used in nearly all of the other circuits and it has percolated through the system as one that seems to work very well. It's a two-part test and it's very simple I think. First, does the motion that's filed challenge the Federal judgment on a ground cognizable under one of the six prongs of rule 60(b)? If not, if it's really a new claim, if it is not within one of the six prongs of rule 60(b), then simply the district court denies it. If, on the other hand, the motion is a true 60(b) motion, as ours was in this case, then the court goes to step two, which is to examine which is the six prongs is implicated, what is the jurisprudence regarding the six -- that particular prong, and how would it apply in this particular case. That's the functional approach that most of the circuits have been using.
04-6432 +++$+++ 28427 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ At that point when the court makes that examination under your rule and it comes to point six --
04-6432 +++$+++ 28428 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-6432 +++$+++ 28429 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- does it refer at any point or in any circumstance to AEDPA?
04-6432 +++$+++ 28430 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does not but -- but point six has been cabined by jurisprudence. Although point six appears to be a wide-open door for any motion to be filed and granted, the courts, even before AEDPA, have treated category six as one that requires extraordinary circumstances. We have been able to quantify. Both an amicus who filed on behalf of the petitioner and the United States and the respondent have quantified the number of cases that have gone through the rule 60(b) process. There have only been, since AEDPA was passed, 28 successful motions that we can quantify, that are published in any way. And we would like to think, at least, that if the State or the Federal Government thought there was an inappropriate application, it would have been raised on appeal and we'd have that statistic. 28 in the 9-year history of the statute means fewer than 3 per year -- or slightly more than 3 per year for the whole country, a fraction for circuits.
04-6432 +++$+++ 28431 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if we were to make clear that 60(b) is widely available, even category six, don't you think -- and as a result the AEDPA restrictions don't apply, don't you think that number would increase rather dramatically?
04-6432 +++$+++ 28432 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do not. And I do not because at this point apparently nine circuits are following the rule we propose, and so the statistics that both the respondent that we bring to you are that small, are that infinitesimal because the courts have always treated 60(b) as a last ditch, extraordinary circumstances required. One can go through each of the six prongs and easily hypothesize examples that are appropriate, (b)(1), (b)(2) --
04-6432 +++$+++ 28433 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, there's no language in category six referring to extraordinary circumstances, any other reason justifying relief.
04-6432 +++$+++ 28434 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Court in the Ackermann decision -- there were two early decisions construing 60(b). The first was the Klapprott decision in which the Court recognized that 60(b) is intended to correct the kind of errors that might occur that are important. The Ackermann decision followed a year later and said, however, this is not a wide-open door. Extraordinary circumstances are required.
04-6432 +++$+++ 28435 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it's still very vague.
04-6432 +++$+++ 28436 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is but it isn't. It's vague in terms of reading the simple rule, but it's not vague if one considers the jurisprudence that surrounds the rule. One cannot ignore a half-century of -- of decisions, which have rejected 60(b)(6) and other 60(b) --
04-6432 +++$+++ 28437 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All that is true, but I think that the court below and the other parties say -- almost everybody is on your side. However, they also note a problem, and the problem is that given the very rigid structure of AEDPA and the imagination of lawyers, that if 60(b) hasn't proved an escape hatch for getting around the AEDPA restriction, it will, and that what the lawyers will do is they will reconstruct what they'd like as a second habeas and put it in the form of a 60(b). And so I can accept everything you say, but if that in the back of my mind is a concern running around Congress in this way, what form of words could you put in to restrict 60(b) to its domain which is the domain in which it's been used so far? Now, the Criminal Justice Legal Foundation filed a brief in which they tried to do that. I thought that was a constructive effort. So what's your opinion --
04-6432 +++$+++ 28438 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would --
04-6432 +++$+++ 28439 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- about how best to do that?
04-6432 +++$+++ 28440 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would prefer to rely upon the Court's principles in this regard.
04-6432 +++$+++ 28441 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but that's --
04-6432 +++$+++ 28442 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Rhines -- Rhines v. Weber is of good help here. Rhines v. Weber, that the Court delivered just very recently, considered the interaction of a rule and of AEDPA, and I thought it very clearly set forth three principles which work well within the test here. First, that there has to be good cause and good cause, of course, is clear in the jurisprudence here, that we're talking about extraordinary circumstances, not a simple legal error. In this case, for example, the extraordinary circumstance is that, for all intents and purposes, my client has been denied his first petition of right because the court foreclosed the issues erroneously. So good cause is the first thing that I learned from Rhines. Secondly, that there have to be potentially meritorious underlying issues. Now, that's going to filter out a lot of the cases because you can't come into court with another issue that might not be good, it mightn't be an unexhausted issue, it might be --
04-6432 +++$+++ 28443 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's pretty flabby.
04-6432 +++$+++ 28444 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- one procedurally defaulted.
04-6432 +++$+++ 28445 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's pretty flabby. Potentially meritorious? Not probably, potentially.
04-6432 +++$+++ 28446 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it is -- it is the terminology used in Rhines. And what I'm trying to do here for the Court is to draw upon your own authority, the words you've spoken, as opposed to the test proposed by the Criminal Justice Foundation and by the United States, which are interesting tests but in no way depend upon the Court's own jurisprudence. I'm trying to offer the Court its own tests that have worked.
04-6432 +++$+++ 28447 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But this is going to be taken up by some 800 district judges and a couple hundred appellate judges, and they're the ones who have the final say in most of these cases just because we decide so few.
04-6432 +++$+++ 28448 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I think that's why this test works. The third point would be that there be timeliness.
04-6432 +++$+++ 28449 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, aren't we dealing here with a time bar issue?
04-6432 +++$+++ 28450 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We are.
04-6432 +++$+++ 28451 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, there -- there was not a determination below, but an extraordinary amount of time expired before the application was made. Why would that count as some extraordinary circumstance? Why shouldn't the petitioner be stuck with the time bar? I don't see how this fits even under your proposed rule.
04-6432 +++$+++ 28452 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I was going to ask the same question. It's about as pedestrian an issue as you could get. It comes up all the time. I mean, this is not a cosmic legal issue.
04-6432 +++$+++ 28453 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It really isn't as pedestrian as it may have seemed. We underwent a change in the law, in AEDPA, that the Court has recognized is not fully clear. And so this was one provision the Court had to clarify in Artuz v. Bennett, and there was a very small number of cases. I think we totaled eight in which relief was granted because district courts had incorrectly barred a petitioner from the first petition because it really wasn't a violation of -- of the statute of limitations.
04-6432 +++$+++ 28454 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why -- why did Florida deny relief in -- in the post-conviction? I mean, one reason that looks like it might apply is that Florida had a 2-year statute of limitations and this was brought up 14 years later.
04-6432 +++$+++ 28455 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it wasn't a 2-year statute of limitations, Your Honor. In fact, it was slightly different from the Federal statute of limitations as well. There is a provision that allows for newly discovered evidence to bypass the standard 2-year statute of limitations, which by the way, the Florida statute of limitations wasn't even adopted until well after my client was convicted. As you know, he says that he was told at his sentencing proceeding, you'll serve 13 years, thereabouts, on a 99-year sentence, and that induced his plea of guilty in this case. And when 13 years came about, he inquired what's happening and they said, no, that's not going to happen. You have a release date of 2057. And as I think the Court knows from its decision in Linz v. Mathis, Florida -- Florida statutes really changed in that way. Gain time was reduced gradually and then much more quickly so that someone who might have served 13 years in 1982 is really looking at serving the 99.
04-6432 +++$+++ 28456 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are you saying that counsel -- what -- what he alleges counsel told him was, in fact, accurate at the time counsel said it, that somebody who got a 99-year sentence wouldn't have to serve more than 13 years?
04-6432 +++$+++ 28457 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To be clear -- and -- and I want to be clear about his allegation is -- because he does not speak English -- that the interpreter told him this, and this was not during a plea colloquy. This was during discussions between the lawyer and the client through an interpreter in advance of the plea itself. And so his allegation has consistently been that that's what the interpreter told him his lawyer said.
04-6432 +++$+++ 28458 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But has that been determined --
04-6432 +++$+++ 28459 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
04-6432 +++$+++ 28460 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- by some court? That's the allegation --
04-6432 +++$+++ 28461 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-6432 +++$+++ 28462 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- pure and simple --
04-6432 +++$+++ 28463 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-6432 +++$+++ 28464 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- yet to be determined.
04-6432 +++$+++ 28465 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And it's never been.
04-6432 +++$+++ 28466 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And so we have to know how the time bar element folds in here, and in an ordinary civil case, a time bar would be an adjudication on the merits. I mean, that -- that would end the case, and why would it be a different, more liberal rule in habeas?
04-6432 +++$+++ 28467 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is because that's the way the Court has treated the rule. The Court has always --
04-6432 +++$+++ 28468 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you're -- you're saying it is extraordinary.
04-6432 +++$+++ 28469 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In a different sense I'm saying it. In terms of computing whether a time bar is on the merits, the Court has not used that concept, which does relate to some sort of civil proceedings. Plaut would make it appear first to money judgment type cases. But the Court has not used that standard, for example, in Martinez-Villareal, has not used it in Slack v. McDaniel. Instead, the Court has not looked at the nomenclature of the order that dismissed the case or denied this case. Instead, the Court looks to did the -- the court below address the claims of the petitioner. And of course, a claim of statute of limitations is not a claim of a petitioner. That's an affirmative defense of the State.
04-6432 +++$+++ 28470 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. Counsel, what -- that -- that brings me to a question that I don't understand about your argument. It seems to me you're biting off more than you have to bite off here. Would you win on the following argument? And I will tell you in advance that it looks to me as though you would. But maybe there's some reason you're not making it. Number one, your statute of limitations claim is not the kind of claim that AEDPA is concerned with when it deals with limits on second and successive petitions. Number two, although a statute of limitations issue is on the merits, it is not on the merits in the second or successive petition category. In this case, you don't have to worry about making a -- an -- an AEDPA end run so far as second or successive goes, and therefore, 60(b) can be used simply not as a wide-open door, but as a door that could be opened when your claim is a claim about a rule that barred you from getting into Federal court, which is what the statute of limitations rule does. That's all you're asking for.
04-6432 +++$+++ 28471 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
04-6432 +++$+++ 28472 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And finally, you have an extraordinary situation here because you have a later determination in Artuz which declared the law not as a change in the law, but as what the law presumably meant from day one. As I understand it, if we accepted that argument, you would win. Do you agree?
04-6432 +++$+++ 28473 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, sir.
04-6432 +++$+++ 28474 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then why don't you make that argument?
04-6432 +++$+++ 28475 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do make that argument, and to the extent -- and -- and I make that argument, but that argument was rejected in the court below which addressed it with a completely different approach. And so I begin in this Court by having to address where I was in the Eleventh Circuit Court of Appeals.
04-6432 +++$+++ 28476 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can you go back to the district court before the Eleventh Circuit? You've now told me that the ground on which the Florida court denied relief was not based on the statute of limitations. Right?
04-6432 +++$+++ 28477 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-6432 +++$+++ 28478 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In the Federal court, what is the ground on which relief was denied and how would Artuz affect that decision?
04-6432 +++$+++ 28479 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the Federal court, the district judge said that the tolling provision would not apply here because it was the district court's determination that it was untimely when filed in the State court. That was not, however, the position of the Florida courts.
04-6432 +++$+++ 28480 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but your -- your immediate concern is how do I get into a Federal court. Whether you win or lose once you get in there is another problem, but I -- as I understand it, that's not what we're dealing with here. And -- and the -- you -- you were kept out of the district court on a statute of limitations issue. If you can say -- if you argue all I've got in front of you, us, is a statute of limitations issue, that's all I want under -- to raise under 60(b) and I have an extraordinary claim here because of the subsequent Artuz decision, that will get you into Federal court, if we accept that argument. Whether -- whether you win or lose, once you get there, I don't know, and I don't know that that's before us.
04-6432 +++$+++ 28481 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And it is not clear. I wish it were because that's precisely what my pro se client wrote in his rule 60(b) motion. He said I have been denied my right to a first petition because of an incorrect determination on the statute of limitations, that the Artuz decision makes clear that I was entitled to a tolling period that I was not awarded, and I would like the judgment modified or reopened. And that's as clear as a pro se litigant can make that claim. That's what the claim has been from the very beginning, long before I was ever his counsel.
04-6432 +++$+++ 28482 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You -- you had a question. Remember my -- you were giving me the three principles to prevent the end run.
04-6432 +++$+++ 28483 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-6432 +++$+++ 28484 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the first was good cause. The second was potentially meritorious underlying issues, and the third is?
04-6432 +++$+++ 28485 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No indication of dilatory tactics by the plaintiff.
04-6432 +++$+++ 28486 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you.
04-6432 +++$+++ 28487 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And this is very helpful I think because it gives those three rules, which the Court has given us in Rhines, helped us and helped the district court to sort out the things that shouldn't be stopping or reopening proceedings.
04-6432 +++$+++ 28488 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May -- may I ask you a question that may be a little bit collateral? There was disagreement on the court of appeals, as I remember it, as to whether or not a COA requirement applies to a denial of a 60(b) motion. What is your view on that issue?
04-6432 +++$+++ 28489 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I actually argued and I do believe that it shouldn't require a COA. And the reason is because -- part of the reason is because this case began before Slack v. McDaniel and continued after. And I think that's where Judge Tjoflat's opinion came from. How can someone whose case is dismissed procedurally ever get a COA? It's impossible because there's never going to be a constitutional issue. By virtue of the procedural ruling, the constitutional was not addressed. And Judge Tjoflat continued that dissenting position through the en banc decision, and I share the view that it is virtually impossible, if not completely impossible, in the typical case of a procedural resolution of the case, to ever get a COA. In this case, majority would point to the fact the my client did receive a certificate of appealability, but I don't think there are many others who will every get it because the question presented was, is a rule 60(b) still viable post AEDPA? And that question won't recur, certainly not after the Court rules here. And I think the very genuine concern that Judge Tjoflat had was and that he -- that he articulated is it's virtually impossible to get appellate review. One of the things we know about habeas corpus is --
04-6432 +++$+++ 28490 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, we're not talking about ordinary appellate review. We're talking about an appeal from an adverse decision by a Federal habeas court.
04-6432 +++$+++ 28491 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-6432 +++$+++ 28492 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So that isn't quite as strange as you make it sound.
04-6432 +++$+++ 28493 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is for this reason, Mr. Chief Justice. Before, you could file successive applications. In the early days of habeas corpus, you could file successive applications. And the reason given was there was no appeal. And so you could go from one judge to the next judge because there were no appeals. Then, of course, we had appeals, and the reason for having successive petitions would diminish. But what has happened to the appeal in a habeas corpus case is it has become so constrained that in many respects it doesn't exist, and that's what happened here. Here's my client who faces a situation in which he has clearly been thrown out of court improperly, and he goes to the court of appeals to have that decision reviewed and can't get past the gateway of the certificate of appealability. And so he has no opportunity to really have an appellate review. He has none.
04-6432 +++$+++ 28494 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but maybe that's what Congress wanted.
04-6432 +++$+++ 28495 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think Congress did intend that. When we looked --
04-6432 +++$+++ 28496 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But why isn't that always the case if it's time-barred?
04-6432 +++$+++ 28497 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it is time --
04-6432 +++$+++ 28498 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If it's time-barred, you never have your chance to have the merits argued.
04-6432 +++$+++ 28499 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's one of the ways in which a case could be dismissed procedurally, but it's not time-barred if the court rules it was erroneously. And that's the concern that I think my client has here.
04-6432 +++$+++ 28500 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But at what point do we bring this all to a halt? I mean, there's always one more argument to make that the last court to rule against me was wrong.
04-6432 +++$+++ 28501 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ One of the nice things about rule 60(b) is it really is a disciplined approach to a court examining its own mistakes. It isn't a wide-open door in any respect. It is a disciplined approach. There are six specific grounds, and even though the sixth one looks like it's wide-open, it certainly isn't under the jurisprudence of the Court. And so what this does is provide a very important opportunity for a judge to be able to look at an intervening decision from the Supreme Court of the United States and say, I have denied this person what Congress wanted them to have. There's no question. One reads AEDPA and one thing is very clear. They -- Congress intended for a person who has exhausted claims, not procedurally defaulted them in State court, and has filed a timely petition, that person under 2254 is entitled to have the claim entertained. And when a court makes a mistake, a procedural mistake, that forgoes or eliminates the opportunity for review, and that's barely reviewable on appeal, depending on how the certificate of appealability may be phrased -- and often these folks are pro se -- I think what happens is 2254 has failed and what Congress intended to happen isn't going to happen. The person was entitled to one petition, one bite at the apple and never receives that bite at the apple.
04-6432 +++$+++ 28502 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, now, the Federal Government has a different proposed rule than yours. Are you going to comment on their proposal?
04-6432 +++$+++ 28503 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I will. With due deference to my colleagues, it's 177 words long, over two pages. And that's why I thought that the approach that we brought to the Court from the other nine circuits is a simpler -- what I would call a simple two-step. Their approach actually can be read, as we did in our reply brief, to fit within our own rule, but I think the problem with the Government's rule is it is so broad and it does not rely upon any of the Court's precedents in -- in its writing. And so what you do, if you adopt a rule like that, first of all, is create confusion. And secondly, what you do is you make a whole new set of rules that are separate and apart from what you -- the Court has previously done in its AEDPA jurisprudence. To be able to touch upon Slack v. McDaniel, to be able to draw upon Martinez-Villareal, to be able to take from Rhines v. Weber, create a formula and a package that's familiar to the courts, to take a rule that's 177 words long that the Government puts together that I interpret as being favorable to my client and they interpret as being unfavorable to my client, I think just puts the kind of difficulty in the courts that this case should try to avoid. So my comment on it is that it may well, if it's read as we did in our reply brief, be the same thing that we're saying and what I refer to as a simple two-step test. And if not, it's just going to be a source of great confusion.
04-6432 +++$+++ 28504 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about the -- you -- you said 60(b) fits this like a glove because it's the district court correcting its own errors. But it isn't usually -- 60(b) was framed with the idea of the district court being the very first instance court. And here you will have the district court as the third going up the ladder. So -- and -- and given that the habeas rules say that -- that civil rules are applicable but have to be modified to be compatible with habeas jurisdiction.
04-6432 +++$+++ 28505 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it's very important to realize that both rule 81 of the Federal Rules of Civil Procedure and rule 11 of the rules of habeas procedure, which the State would have us use as a constraint, really are the first things that tell us that there's supposed to be a functional approach. Both of those rules tell us that the rules apply to the extent that they're compatible, and so that's certainly not a categorical approach. That is a functional approach.
04-6432 +++$+++ 28506 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the -- the Government, by the way, seems a broader rule than yours. The only thing it rules out is new legal claims or new evidence. I don't see anything in your -- tell me if I'm wrong, but I don't see anywhere where you say we should be able to bring a 60(b) motion based on new legal claims or new evidence.
04-6432 +++$+++ 28507 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ New legal -- this is the part that I think we have to look both at 60(b) and the statute. New claims -- new claims -- are brought under 2244(b)(2). Same claims are either going to be barred by (b)(1) or, if heard at all, under 60(b).
04-6432 +++$+++ 28508 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's what I said. I don't see how the Government hurts you. I think -- I think if you the Government's, you're even better off.
04-6432 +++$+++ 28509 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that they're --
04-6432 +++$+++ 28510 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, it's even -- but I want to know why -- why -- there's some reason you don't like the Government, and -- and -- other than fact that they must hurt you in some way. I don't see how it hurts you.
04-6432 +++$+++ 28511 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think it does, but they do. So that troubles me. (Laughter.)
04-6432 +++$+++ 28512 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- make us --
04-6432 +++$+++ 28513 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They make an argument that under their test, my client should not prevail. I can make an argument under our test my client prevails.
04-6432 +++$+++ 28514 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And under their test too, you say it's applying the same rule of -- it's not a new claim. It's the same claim as -- as -- just that they -- shows that the district judge got it wrong.
04-6432 +++$+++ 28515 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the heart of the Government's position is it requires a much more radical departure from general procedure than a simple change of law. But I don't think it's a simple change of law, for example, when it is an intervening decision that interprets a statute that was in effect and that the mistake of not interpreting correctly is to effectively bar the first bite at the habeas apple. Now, the Government does not give that ground in their test, and I think it's important that the Court leave that door open. And that's why I think our test is better and theirs in inadequate. I think ultimately we come down to three issues that support the position that we're taking. Chief Judge Edmonson made note of this in his concurring and dissenting opinion. He was troubled that we were not giving effect to both laws that Congress had approved, 60(b) and AEDPA. By virtue of the majority rule, 60(b) had been categorically eliminated. And I think the position we take before the Court today is that the Court should honor both provisions that Congress has adopted. May I reserve the balance of my time?
04-6432 +++$+++ 28516 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Very well, Mr. Rashkind.
04-6432 +++$+++ 28517 +++$+++ TRUE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-6432 +++$+++ 28518 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Kise, we'll hear from you.
04-6432 +++$+++ 28520 +++$+++ FALSE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: This case presents a fundamental inconsistency to this Court. Congress said through AEDPA that a habeas petitioner is to take all their claims, put them in one basket, bring them to court within 1 year, and a sovereign State is going to defend that judgment in Federal court one time. Rule 60(b) says, petitioner, use as many baskets as you need, take as long as you like, and the State, you're going to have to keep coming back over and over and over again. And this case here presents that -- that very problem.
04-6432 +++$+++ 28521 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Isn't that an exaggeration of how 60(b) works in practice? It isn't that every civil judgment can come back and back again with 60(b) motions. The district courts have been rather disciplined in handling 60(b) motions. So I think you have exaggerated what 60(b) does in the ordinary civil rules context.
04-6432 +++$+++ 28522 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, respectfully, Justice Ginsburg, I -- I would disagree with that in this sense. I would disagree with it in the sense that as Justice O'Connor pointed out, if this Court were to open that door, I think you would see that sort of abuse. I think you would see that sort of manipulation of the process. I think you would see that sort of --
04-6432 +++$+++ 28523 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But have we seen it in the -- there are other circuits who do adopt that rule, aren't there? And have we seen the abuse you're describing?
04-6432 +++$+++ 28524 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We have not yet, but I would submit to Your Honor that that is because there is still this uncertainty because this case is here before this Court, and -- and because this has not yet been approved. If this is approved by this Court, then you're going to see sovereign States like Florida dragged back in here nearly 25 years later --
04-6432 +++$+++ 28525 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that depends --
04-6432 +++$+++ 28526 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I had the same comment or the same reaction as Justice Ginsburg. Forget about the habeas area. Just in -- with general civil judgments, have there been Law Review articles saying that rule 60(b) undermines finality? People kept going back, back, and back. I -- I thought quite the opposite, that we were living very well with rule 60(b).
04-6432 +++$+++ 28527 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in -- in the ordinary civil context, that's perhaps correct, Your Honor, but -- but this isn't the ordinary civil context. This is the habeas context. And Congress has said that this is the structure that we want to take. This is the rule that we want to take. And as this Court has recognized that -- that AEDPA was passed with -- with this enduring respect for finality, this respect for the sovereignty of States. State, you're only going to have to come back here one time. You're only supposed to litigate one time, one -- all the claims in one basket. They're brought within 1 year, and the State is to defend its judgment one time because --
04-6432 +++$+++ 28528 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. But his -- his whole argument is you, State, get exactly what you're entitled to if I win on 60(b) because what I was entitled to and what you were entitled to was the 1-year statute but subject to the rule in Artuz. That's all you get, State. And what he is saying is, I want to get back into court so that I can have the statute of limitations -- the benefit of the statute of limitations as Artuz construed it. That means you, State, get what you want and I get my one chance. How is that an open door to the abuse that you're talking about?
04-6432 +++$+++ 28529 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, again, there -- there has to be some finality to the process, and -- and here what the petitioner got was at the time a perceptively correct view of the law.
04-6432 +++$+++ 28530 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He got what Artuz said was an erroneous view of the statute of limitations.
04-6432 +++$+++ 28531 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 2 years after the district judge made his ruling in this particular case. And it -- it was in this particular case 2 years. It could be 10 years. It could be 15 years, and that's the problem that we see is that if --
04-6432 +++$+++ 28532 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And do you -- do you think that there is -- that there is this -- this sort of tidal wave of -- of erroneous statute of limitations determinations that, if Artuz is applied, will suddenly be coming 5, 10, and 20 years into Federal court? I mean, it -- it -- your argument, in relation to his particular claim seems exaggerated.
04-6432 +++$+++ 28533 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, it's not exaggerated when you look at it from the standpoint that -- that Congress intended us to be in court one time to defend this judgment in Federal court. We were there. He received a --
04-6432 +++$+++ 28534 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You -- you were there for the purpose of getting him booted out. I mean, you didn't -- you didn't get into the merits of anything.
04-6432 +++$+++ 28535 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, he received a -- a final disposition on the non-technical procedural basis which was the applicable law at the time. He received that adjudication and --
04-6432 +++$+++ 28536 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it was not the applicable law at the time. The decision related back to before that hearing.
04-6432 +++$+++ 28537 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, then that would, respectfully, eviscerate any -- any notion of -- of the statute of limitations --
04-6432 +++$+++ 28538 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. Sometimes there are law-changing decisions, but this was not a law-changing decision. It's a decision interpreting what the law was from the date of its enactment.
04-6432 +++$+++ 28539 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But based on that, Your Honor, then there would be no statute of limitations. If -- if that decision came out 10 years from now, we would then be back in this Court on a 60(b) motion, which I would submit is fundamentally inconsistent with what Congress intended.
04-6432 +++$+++ 28540 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If there had been an Artuz violation and not every statute of limitations determination implicates Artuz.
04-6432 +++$+++ 28541 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. But at the same time, there may be some other mistake or some other excusable neglect or some other issue that comes up. I mean, what Congress intended to prevent is not just the successful filing of a 60(b) or the successful revisiting, if you will, of the judgment. It -- it intended to prevent the actual attempt itself. I mean, the idea is -- is that once this judgment is adjudicated, once we've had this adjudication, you are not to come back. You are not to --
04-6432 +++$+++ 28542 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what -- what Congress was principally concerned with -- Congress was concerned with two things. It was concerned with second and successive. That's not what is before us. Congress was also concerned with a 1-year statute of limitations. What is before us on that point is that this guy did not get the benefit of the statute of limitations that he had a right to get the benefit of, that there was a flat mistake of law. So by -- by recognizing his statute of limitations claim, we do not open the door to second and successive litigation. We open the door simply to Artuz problems on statute of limitations rulings and that's a pretty narrow category it seems to me.
04-6432 +++$+++ 28543 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I would -- I would respectfully disagree with Your Honor's premise that -- that he -- he's not seeking to revisit an adjudicated petition. He did -- he is seeking, as -- as we see it, to --
04-6432 +++$+++ 28544 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Sure. Sure, he does. And if it's second and successive, he's going to get thrown out again.
04-6432 +++$+++ 28545 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And we would submit that it is second and successive because it's seeking to revisit that adjudication, an adjudication that was had on a non-technical procedural basis.
04-6432 +++$+++ 28546 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So that's the --
04-6432 +++$+++ 28547 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You may -- you may be right, but that's what district courts are there for.
04-6432 +++$+++ 28548 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but the Congress intended to take that discretion away from the district courts. 2244(b)(1) says you will not look at it again, and 2244(b)(3) says, in fact, that when you do go back to potentially revisit an issue, when you do go back to potentially look at a second or successive, that it's not even the same district judge that makes that determination. As in 60(b), you go back to the same judge. 2244(b)(3) says, no, a three-judge panel of a circuit court of appeals must first determine whether or not you even have a right to get in --
04-6432 +++$+++ 28549 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's also true of (b)(3).
04-6432 +++$+++ 28550 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor --
04-6432 +++$+++ 28551 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And not even the Eleventh Circuit said (b)(3). And therefore, you want to say absolute, or are we really talking about which 60(b) motions escape the strictures of AEDPA?
04-6432 +++$+++ 28552 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I think we're talking about which 60(b)(3) motions -- or 60(b) motions do escape the strictures of AEDPA.
04-6432 +++$+++ 28553 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And you're prepared to defend the -- the Eleventh Circuit.
04-6432 +++$+++ 28554 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I am , Your Honor.
04-6432 +++$+++ 28555 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Correct, though you're alone on that because even the Government doesn't and nor does the criminal justice. But if you're prepared to defend them, I guess you'd say why is it that they will allow (b)(3), fraud on the court by the adverse party, to escape, but should your own witness turn out to have been committing his own fraud for whatever set of reasons, you can't.
04-6432 +++$+++ 28556 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I would -- I would say why fraud -- to answer your question, Your Honor, why fraud -- let me back up first to the premise that -- that our position and the Government's position are that far apart. I would respectfully say that -- that we are not that far apart. I do not see that much light between the positions, although I know their brief leaves some room --
04-6432 +++$+++ 28557 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, under I guess the Government, you can bring everything under 60(b). By the way, if they do bring a motion to reopen under 60(b) because of change of law, they're almost bound to lose. There are hardly any cases which find that an adequate ground under 60(b). But they let you do anything under 60(b), I take it, as long as the claims presented do not -- as long as they are not trying to obtain relief on the basis of new legal claims or new evidence. Now, I just noticed there's another one here. Do not support habeas relief. Maybe that's the problem.
04-6432 +++$+++ 28558 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Perhaps I --
04-6432 +++$+++ 28559 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You explain. I -- I thought when I first read this, that this was quite broad, but I may not have read it perfectly.
04-6432 +++$+++ 28560 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, and I don't want to pretend to speak for the United States because -- because that -- that might cause me to misspeak. But to answer your question about why fraud is different, I -- I have three bases for why fraud is different and why we think that that exception is the right exception. One, this Court has said in the past that fraud is different than other things. In the Hazel case that's cited in Calderon, this Court has said that tampering with the administration of justice through fraud involves more than an injury to a single litigant. It is a wrong against the very institutions designed to safeguard the public, institutions that cannot tolerate fraud.
04-6432 +++$+++ 28561 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So is that also true if his own witness has committed the fraud?
04-6432 +++$+++ 28562 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I would -- our fraud exception that -- that we -- we are delineating here is material, intentional conduct that subverts the process. And it can't be just anyone, Your Honor.
04-6432 +++$+++ 28563 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-6432 +++$+++ 28564 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It needs to be someone in a position to subvert the process for -- for a purpose like the Government or the court if you -- if -- a judge that's been bribed in the unusual example of that, or -- or the -- the subornation of perjury in the Hazel sense. Those examples -- that would be fraud that I think is what this Court was talking about in Hazel --
04-6432 +++$+++ 28565 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What about a claim that a witness perjured himself, a witness for the government, during trial?
04-6432 +++$+++ 28566 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, a witness for -- a -- a claim that a witness for the government perjured himself during the trial would certainly implicate material, intentional conduct designed to subvert the process. And one of the advantages to using fraud is -- is that it is a familiar bright line, workable standard for district courts. And with fraud, you have to plead a little bit more particularly, and so you would avoid in some respects some of the question marks that would come up --
04-6432 +++$+++ 28567 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And all I'm saying is exactly whatever criteria is met, that it happens to be his own witness, and sometimes your own witnesses do have their little games, you know, with prisoners, and so it's the same thing.
04-6432 +++$+++ 28568 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-6432 +++$+++ 28569 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Does that not count too?
04-6432 +++$+++ 28570 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think that would leave so much room for mischief, it would not be possible to contain the potential for -- for abuse. I mean, if every jailhouse snitch were -- were subject to -- to the -- the 60(b) exception that we're -- we're articulating here, if every -- every petitioner could simply say, well, my own witness that I put up on the stand -- that -- that witness perjured himself or herself, then -- then the opportunity for mischief would abound, and we would be back in the same position that we would be in general with -- with States having to respond again.
04-6432 +++$+++ 28571 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Kise, this may be important. Do you agree with Mr. Rashkind that in the Florida court the dismissal or the denial of relief was not on the Florida statute of limitations --
04-6432 +++$+++ 28572 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. We -- we would submit that it is on the statute of limitations, that -- that rule 3.850 provided the petitioner with 2 years within which to apply, and both of his petitions were dismissed on statute of limitations grounds. And I don't know that that matters --
04-6432 +++$+++ 28573 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But it's not -- not clear from --
04-6432 +++$+++ 28574 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to the end result here, but -- but that -- that's our position.
04-6432 +++$+++ 28575 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's not what the -- this is -- the -- the form of dismissal in the Florida Supreme Court doesn't tell us that. It just says something about allegations contained therein do not constitute legal grounds for granting the new trial.
04-6432 +++$+++ 28576 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor may be referring to the second 3.850 dismissal, and that second 3.850 didn't meet the requirements of the successive rule. There -- there was a first --
04-6432 +++$+++ 28577 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The first one was on the statute of limitations?
04-6432 +++$+++ 28578 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, and then the second one was also on the statute of limitations in addition to the fact that it did not meet the requirements of -- of the successive rule because it was essentially the same claim raised again. He raised the same claim a second time.
04-6432 +++$+++ 28579 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do we have that anyplace at -- in the papers before us, the first -- the first dismissal in the Florida -- in the Florida trial court?
04-6432 +++$+++ 28580 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure exactly where it is in the appendix, Your Honor. Let me see. I -- I don't know that we do. I know we have reference to it, but I don't know that we have the actual language.
04-6432 +++$+++ 28581 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you said --
04-6432 +++$+++ 28582 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is -- it is in the Eleventh Circuit opinion, I believe, Your Honor.
04-6432 +++$+++ 28583 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- that it was based on the Florida 2-year statute of limitations.
04-6432 +++$+++ 28584 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I believe -- when I said opinion, I'm sorry. The Eleventh Circuit record, Your Honor. It is in the Eleventh Circuit record, the -- the decision of the Florida court. But it is not in the appendix before this Court. But returning again to Justice Breyer, because I don't think I finished my three reasons. The first was because this Court said and says fraud is different. The second is because there never was a first review in that sense. I mean, they never obtained the first review that they -- they were seeking. And the third is -- is the State's finality interest, which this Court has -- has recognized as -- as near paramount under certain circumstances, must yield where you have the presence of fraud. And -- and so that's why Florida maintains that this is the correct and -- and only exception. And -- and there are several reasons that we maintain that this is the correct and only exception. The first and -- and most important, and -- and as I started this presentation, is that this is the only exception that preserves congressional intent. The second is -- is that AEDPA and rule 60(b) cannot coexist except in very narrow circumstances because they address the same subject matter in fundamentally different ways. And the third is, as I mentioned before, because the court --
04-6432 +++$+++ 28585 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But is it correct that they address the same subject matter? Isn't 60(b) directed at the integrity of the habeas proceeding, whereas AEDPA is directed at the integrity of the original conviction?
04-6432 +++$+++ 28586 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I would respectfully disagree with Your Honor because 2244(b)(1) does deal with the -- the revisiting of the Federal habeas petition. The 2244(b)(1) specifically applies to the revisitation of the Federal habeas petition. And in -- in terms of how they deal with the same subject matter in different ways, as I began, AEDPA's whole purpose is to provide one basket of claims within 1 year so the State has to defend one time, and 60(b) allows for the potential -- and -- and I would submit to you more than just the potential if this Court were to approve a standard -- for -- for repetitive claims, many baskets, many -- many years, and -- and many times that the State has to come back. And as I say, in this case the -- the principle of finality is all but abolished in this case and all be eviscerated simply by the fact that nearly 25 years later Florida is still in this Court defending this judgment that was based on a guilty plea, not even a -- a conviction. And -- and as this Court recognized, albeit not as part of the holding, but -- but mentioned in -- in Calderon with respect to the enduring respect for finality, this is something that has survived both direct and post-conviction review in the State court system. I mean, this is -- this is Federal review of a sovereign State's determination as to the application of its criminal laws, and Congress has made a policy determination that -- that that Federal review must be limited because State -- State exercise of its -- of its police power and -- and the enforcement of its judgments is something that needs to be respected. And Congress -- because the power to grant habeas is given by written law, Congress has the power to make that policy determination. And while the petitioner argues that 60(b) somehow strikes a balance, I would submit to this Court that Congress has already struck that balance. Congress has already made that determination. There isn't another balance to be struck by the use of 60(b), but that a balance has already been struck by Congress and Congress has made a determination that in most circumstances finality is going to trump. And this isn't a perfect system. There are going to be exceptions with any bright line rule. With any bright line rule that this Court has ever carved out --
04-6432 +++$+++ 28587 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Didn't Congress rule -- rule out 60(b) in -- in death cases?
04-6432 +++$+++ 28588 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor. Specifically rule out 60(b) --
04-6432 +++$+++ 28589 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, yes.
04-6432 +++$+++ 28590 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in -- in capital cases.
04-6432 +++$+++ 28591 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-6432 +++$+++ 28592 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know -- under the statute?
04-6432 +++$+++ 28593 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes. I may be wrong about having --
04-6432 +++$+++ 28594 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not certain. We -- we're submitting that the Congress under -- under AEDPA ruled out 60(b) in all cases with the exception of -- of the fraud.
04-6432 +++$+++ 28595 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought there was a special provision for capital cases.
04-6432 +++$+++ 28596 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe so, Your Honor. But with respect to the bright line rule that -- that we submit is necessary to effectuate congressional intent, as I was saying, that it's not a perfect system. And the petitioner can come up with all manner of examples that -- that seem to implicate various policy determinations about what should or should not happen in a given situation. But -- but our position -- and we believe the position of the Eleventh Circuit is -- is that Congress has already weighed that now. Congress has already made that determination. Congress has already told us where the line is going to be drawn and it's going to be drawn on the side of finality and it's going to be drawn on the side of respect for State sovereignty. And I would -- would also submit that -- that the Sixth Circuit test and the functional equivalent approach test that's advanced by the petitioner ignores really both the statute and it ignores reality. It ignores the statute because AEDPA tells us you can't revisit an adjudicated habeas petition unless there are certain limited circumstances that are met. And it ignores reality because the only reason to revisit a habeas petition is to ultimately revisit the underlying State court judgment. And the only purpose for being there is to ultimately get at that State court conviction that is -- that is under siege. With respect to the coexistence, the petitioner made a point about this case is somehow like the Rhines case that was decided recently by this Court. But in the Rhines case, this Court was balancing the exhaustion requirements with the statute of limitations provisions. Here there's nothing to balance. Here this is just simply a prohibition. Congress says you cannot revisit except in these isolated, limited circumstances. And so rule 81, habeas rule 11, and this Court's decision in Pitchess all say that 60(b) does not trump if the habeas statute holds differently. And finally, the courts do need a bright line that's not subject to variance, as I mentioned earlier. This is a workable standard. They're familiar with fraud. It's well defined in the case law. It requires more particularized pleading which makes less room for mischief, and it -- it gives the courts an easily identifiable standard by which they can effectuate that congressional policy, that congressional policy of one basket of claims within 1 year and the State will come into this Federal court one time to defend its sovereign judgment. If there are no further questions, thank you.
04-6432 +++$+++ 28597 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Kise. Ms. Millett, we'll hear from you.
04-6432 +++$+++ 28599 +++$+++ FALSE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Justice Breyer, let me assure you that our position is, if not as strict, only marginally less strict than the State of Florida's.
04-6432 +++$+++ 28600 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ On page 24, I read the or wrong.
04-6432 +++$+++ 28601 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
04-6432 +++$+++ 28602 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's -- you meant the things on both sides of the or.
04-6432 +++$+++ 28603 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's very --
04-6432 +++$+++ 28604 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And I was thinking the first side you'd allow, the second side you wouldn't. But if it's very, very strict, which now I understand it, because I read the or correctly when I went back.
04-6432 +++$+++ 28605 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right. I wanted to make sure --
04-6432 +++$+++ 28606 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ My question would be why.
04-6432 +++$+++ 28607 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. And -- and if you want a shorter statement -- I mean, a brief is a brief -- a short statement of what our test is, Justice Breyer, it's quite simple, and that is a rule 60(b) motion that seeks to set aside a denial of habeas relief on the grounds that it was incorrectly decided is barred. That is the territory that AEDPA occupies. That includes, Justice Souter, not just determinations on the --
04-6432 +++$+++ 28608 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would you say that again?
04-6432 +++$+++ 28609 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A rule 60(b) motion that seeks to set aside a final judgment denying Federal habeas relief on the grounds that it was incorrectly decided is a second or successive petition under AEDPA. It can proceed only under AEDPA's terms, which change not only the standards for a second decision, but the decision-maker, the gatekeeper. Justice Souter --
04-6432 +++$+++ 28610 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that a statement of when it's not available? I want to be sure I -- are you stating it positively or negatively?
04-6432 +++$+++ 28611 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It --
04-6432 +++$+++ 28612 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It is not available in the circumstance you described. Right?
04-6432 +++$+++ 28613 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. It is -- it is --
04-6432 +++$+++ 28614 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, would you state -- tell us when it is available?
04-6432 +++$+++ 28615 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. The flip side of that, if I can -- the -- the title of section 2244 is finality of determination. If you are seeking to upset a final determination, you are governed by 2244 not 60(b). If you are not seeking to upset a final determination, let me give you the two -- the two circumstances that come to mind right away. One is the fraud exception recognized by the court of appeals, and there could be similar errors like that -- and this is what we talk about in our brief -- that essentially vitiate the existence of a determination in the first place. They are that profound and that rudimentary. Then you are not upsetting what our system recognizes to be a determination and what Congress wanted you to have. The other exception is essentially 60(a), clerical -- you're not -- errors. You're not really upsetting anything. You're actually trying to implement or effectuate the actual ruling by the court of appeals. The only gap -- I'm not sure it's a gap at all after the argument here -- is that we don't limit it to fraud. We recognize that there are some other foundational, rudimentary, fundamental errors that conceivably could occur. I'm not aware of them happening, but something like a biased judge addressed by this Court in Toomey v. Ohio.
04-6432 +++$+++ 28616 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But now you're into -- I mean, you can use a tone of voice. You know, it sounds very strong. But I thought 60(b)(6) is weird things happen, and 60(b)(1) is there are all kinds of mistakes. You know, some of them can just be accidental. The lawyer was hit by a trolley. And in fact, all of 60(b) is meant to capture that kind of thing. So it sounds like what you're saying is, sure, follow 60(b), maybe not the evidentiary, maybe not the new evidence part, follow it, but be sure you do so strictly. Are you saying more than that?
04-6432 +++$+++ 28617 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I am saying a lot more than that, and that is, first of all, because the vast majority of things that are covered by 60(b) do not qualify as tantamount to fraud or a biased judge. And -- and the second incredibly important thing is that Congress changed the decision-maker. Under 60(b), you have 645 individual district court judges applying the historic equity power to -- to overturn final judgments.
04-6432 +++$+++ 28618 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Where -- where do you disagree with Judge Carnes?
04-6432 +++$+++ 28619 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With Judge?
04-6432 +++$+++ 28620 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ With -- with the majority of -- in -- in the Eleventh Circuit.
04-6432 +++$+++ 28621 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If that opinion is read -- and I think fairly it has to be -- as saying only fraud and not errors of similar magnitude like a biased judge or some other complete breakdown so that our system doesn't recognize that to be a judgment -- it's not what Congress thought it was giving you -- then that would be -- I can't tell you there's cases where this happens, but that -- but the -- the rationale for including fraud would exclude -- include some other similar errors of magnitude. That's our only --
04-6432 +++$+++ 28622 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now, how do you apply it in this case, the Artuz problem?
04-6432 +++$+++ 28623 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In -- in this case, the Artuz problem is only an argument, and I -- we're not even accepting that it's accurate, but only an argument that the court made a mistake of law. A mistake of law is not a fundamental breakdown in our system. It does not mean the court didn't act as a court. This Court reverses in -- or vacates in about 75 percent of its cases. It doesn't mean all the lower courts were not operating as courts as we recognize them as at the same level of fraud. It's routine to have mistakes of law --
04-6432 +++$+++ 28624 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, suppose Artuz had been decided and it was in the mail and the judge forgot to open his advance sheets that day. And so he goes back to his office, says, oh, my God. You know, I mean, a weird thing like that. And of course, he says nobody has been hurt yet. I'll reopen it. Okay? Is that all right?
04-6432 +++$+++ 28625 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If he does it within 10 days under rule --
04-6432 +++$+++ 28626 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it's 10 days and a half.
04-6432 +++$+++ 28627 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 10 -- (Laughter.)
04-6432 +++$+++ 28628 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Then, Justice Breyer, the nature of lines is somebody falls on the other side sometimes. There's an appeal process to deal with exactly that.
04-6432 +++$+++ 28629 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And the reason that it's happened is because all the lawyers were hit by four trolleys. (Laughter.)
04-6432 +++$+++ 28630 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I mean, you see what I'm doing? I'm simply trying to find cases that fit within the language, but they're very weird and justice cries out for a reopening. Now, that's what it seems to me one is about. Two is about. Three doesn't really. Three you agree applies. Two may not apply. Three you agree applies. Four I think you probably agree applies or not at all. Five doesn't apply at all, and six is anything under the sun.
04-6432 +++$+++ 28631 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, the problem is -- and -- and Justice Souter, you referenced this. There have been many references to this, that 60(b) is not a problem. It's already cabined out there. In fact, it's not. It's abuse of discretion review in courts of appeals. We cite a case, Hamilton v. Newland, from the Ninth Circuit where they used 60(b)(6). The -- the petitioner filed his claims. They were clearly barred by the statute of limitations, not an Artuz problem. So he said, all right, I'm going back to Federal court with a 60(b)(6) claim. I'm actually innocent. That puts me in 60(b)(6). I admit actual innocence. It's -- it's a very weak claim. I can't been get relief on it. But the district court said, come on in. I'm going to decide your claims.
04-6432 +++$+++ 28632 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, maybe --
04-6432 +++$+++ 28633 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And the -- and the --
04-6432 +++$+++ 28634 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- maybe the district court shouldn't have done that, but whatever -- whatever was wrong there, it was merely a classic application of -- of review of a statute of limitations point. There -- there was much else involved and maybe it was improper. My question, I guess, is why do you say that the -- why do you assume that the policy animating applying 60(b) to a gatekeeping issue like statute of limitations, where there is an unusual circumstance as in Artuz, should be the same policy that animates applying 60(b), let's say, when there is an attempt to -- to make an end run around the second and successive rules? The latter I think we can all understand pretty readily. I mean, it's very important. You've got the -- the -- AEDPA if you allow that. With respect to this kind of a statute of limitations problem, what the guy is asking for is what he was entitled to under AEDPA as a matter of timing and gatekeeping. Why is the policy under 60(b) the same in those two cases?
04-6432 +++$+++ 28635 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, there's two answers to that. The first is that this won't be -- it will be hard to limit this to a statute of limitations because the next argument is going to be procedural default, and the next argument is going to be misapplication of Teague's non-retroactivity principle, and the next one is going to be mistake in applying adequate, independent State grounds. The -- a bulk -- a huge percentage of Federal court decision-making in habeas cases is procedural rules because Federal habeas is not a roving commission for error correction. You have to -- at -- in the same breath that you establish a constitutional violation, you have to show it's proper for Federal courts to act. Procedural default and statute of limitations are as much your job to show to have Federal relief as it is to show that something went wrong under the Constitution. It's a -- there's a dual character to Federal habeas relief. So this, in fact, is exactly part of the habeas -- this is part of the second or successive determinations that -- applications that Congress wanted to bar. And we have to step back and think about what would happen here. What we have is the State of Florida coming up 23 years after a guilty plea not because to defend -- once again, it's judgment. It's conviction not because of anything they did in the conduct of the trial, not because the guy claims to be actually innocent, but because almost 2 decades after the plea, a Federal court allegedly made a mistake of law that wasn't cleared up through the appellate process. That's not the point of Federal habeas corpus. That's not what it's supposed to be about. But if we open the door, if we let the camel's nose in the tent, a camel is going to come behind it, and it's going to be procedural default, non-retroactivity of Teague, and all of the multiple other grounds on which Federal habeas decisions are made by courts.
04-6432 +++$+++ 28636 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Did the Federal court make a mistake of -- of law if the -- if the Florida court dismissed under the Florida 2-year statute of limitations?
04-6432 +++$+++ 28637 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Did -- did the Florida make a mistake of what --
04-6432 +++$+++ 28638 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, no. Did the Federal court. And suppose that the --
04-6432 +++$+++ 28639 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I guess -- I think this Court is going to tell us. I think the -- the Pace v. DiGuglielmo case that this Court heard -- I think it was last month --
04-6432 +++$+++ 28640 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's sub judice, before us now.
04-6432 +++$+++ 28641 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-6432 +++$+++ 28642 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But do you agree with Mr. Kise that the first dismissal in the Florida court, the first denial was on the Florida 2-year statute of limitations?
04-6432 +++$+++ 28643 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My -- the order from the court, my understanding, simply denied it on the grounds of legal insufficiency, and it didn't give a further explanation. It doesn't say what exact grounds was, but if you look to what was argued by Florida, they were arguing on timeliness. Thank you.
04-6432 +++$+++ 28644 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Ms. Millett. Mr. Rashkind, you have 4 minutes left.
04-6432 +++$+++ 28646 +++$+++ FALSE +++$+++ MR. RASHKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. If I may begin by correcting what I think are two inadvertent mistakes, but important ones. Justice Ginsburg, in answer to your question about the first State habeas, these are -- these documents are contained in -- in your record. They're noted at joint appendix 2-5. The first State habeas was dismissed because it was not notarized. That's the sole basis for its dismissal: it was not notarized. The second one was brought and denied, and the court specifically notes, as we note in the yellow brief, footnote 7 on page 12, it set forth the -- the court's grounds. It says the motion does not state grounds for relief. At no point does Florida ever adopt the State's position that either of the petitions was untimely. The State court addressed them directly on the merits. Justice Breyer, if I may, I can actually hypothesize several examples under subsection (5), of subsection (4), and perhaps even subsection (2) of rule 60(b), which would be permissible. For example, under (5), a judgment that should no longer have continuing effect might be that the district court entered an alternative writ of habeas corpus, tried the defendant within 60 days or 90 days, or set him free. And when everyone gets back to State court, it becomes plainly apparent that can't be done within 60 days, and either the State or the defendant might go back and say, please, amend that order out of time. It's a final order. Please amend it to make it 180 days. We can come up with examples, I think, for each of the provisions, and I think that's really what's interesting about this rule. It is written in a way that's durable against AEDPA, and it conforms nicely with AEDPA. And it does not take a lot of extra thought, it does not take a lot more than adopting the Court's previous holdings for us to be able to make it workable within AEDPA. The fact that this case is now in its 25th year is a result of law and not of delay. Mr. Gonzalez alleges -- and no one has ever been able to say otherwise because we've never had a hearing -- that it took him 13 years to find out about the newly discovered evidence. He exhausted his claims for 4 years. He was only in Federal court for 1 year before the State raised a bar, a statute of limitations bar, which turns out to be incorrect. In the last 7 years, there's been litigation both in the court of appeals and now before this Court caused by the State's argument that the case should have been dismissed on the statute of limitations. My client is not responsible for the fact that it's the 25th year, but what we do know about this case is he has approximately 76 years remaining on his 99-year sentence. And unless he gets one bite at the habeas apple, he has not gotten what Congress directed he receive. Congress made one thing clear in AEDPA, and I think it's a good thing, and that is, if a defendant goes through and does what he's supposed to do in State court, he does not procedurally default the issues, he exhausts fully, and he timely files a petition, that was the candidate Congress wanted to have to get habeas review. In this case Aurelio Gonzalez did all of those things, and he sits on the outside, having been told you get no bite at the apple, it's too late. And that's just plain wrong. And there's something wrong about that, and that's why there's rule 60(b). 60(b) is nothing but a coalescence of many great writs that were designed for one purpose and one purpose alone and that was to correct mistakes in extraordinary circumstances. There can be no more extraordinary circumstance than that a person is denied their right to habeas review, and that's what's happened here. And we respectfully submit that rule 60(b) is the only and best tool to remedy the error made within the discretion of the district court, and we ask for that result. Thank you.
04-6432 +++$+++ 28647 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Rashkind. The case is submitted.
04-6964 +++$+++ 28651 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument now in No. 04-6964, Jay Shawn Johnson v. California. Mr. Bedrick.
04-6964 +++$+++ 28653 +++$+++ FALSE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: I would like to address three points. One, the correct prima facie standard under Batson is whether there's sufficient evidence to permit a judge to draw a reasonable inference of discrimination. Two, the challenger's own reasons must be disclosed in order for the Batson process to work and to prevent discrimination. Three, it is improper for a third party to speculate at the prima facie stage as to a challenger's possible reason because what needs to be evaluated is the challenger's own reason and own credibility and own demeanor, and not someone else's guess as a reason. The correct prima facie test is a permissive inference test where there is sufficient evidence to allow a judge to draw a reasonable inference of discrimination. That's equivalent to the test where a judge decides whether there's sufficient evidence to pass a case to the jury, although I'd like to add one small proviso to that, which is in case of doubt, the benefit should go in the direction of obtaining the reason because the goals of Batson cannot properly be enforced unless the reason for the challenge -- the challenge is stated.
04-6964 +++$+++ 28654 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's not very --
04-6964 +++$+++ 28655 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's a very low standard in the first place, and why should it be watered down more?
04-6964 +++$+++ 28656 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm -- I'm not suggesting it be watered down, Your Honor. I'm just suggesting in case of a tie, in case the judge finds the question is in equipoise, then there should -- the benefit should go to the -- obtaining the reason and therefore obtaining a -- a ruling on the merits.
04-6964 +++$+++ 28657 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is the test for going to the jury the same as the test for whether or not discovery can proceed?
04-6964 +++$+++ 28658 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. The test for going to the jury is actually higher.
04-6964 +++$+++ 28659 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I'm -- I'm surprised you set the bar that high. If we're going to --
04-6964 +++$+++ 28660 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I guess I had the benefit of the argument before the Court last year and the benefit of further reflection, and I think that allowing the case to go to the jury is a good standard except for my proviso that if it was close and the -- was in equipoise, then the benefit ought to go to obtaining the reason because it is a discovery-type request.
04-6964 +++$+++ 28661 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I was just admiring your -- your proposal in that at least it relied on something that the lower courts are used to applying. I mean, yes, is there enough to go to the jury? My goodness, it's a standard test. But you've suddenly destroyed it all by saying it isn't quite that because, you know, if it's -- if it's really close, the tie goes to the plaintiff, which is an unusual way for the tie to go. The tie usually goes to the other side.
04-6964 +++$+++ 28662 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The tie goes here to -- the standard would be fine with -- with or without the benefit of a tie. I would be happy with the standard either way.
04-6964 +++$+++ 28663 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what's the standard under title VII when we talk about that, when we talk about enough evidence to shift the burden of proof? Is that something less?
04-6964 +++$+++ 28664 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The standard under title VII is something less, Your Honor, because under title VII, under McDonnell Douglas, the plaintiff has to prove four factors, that the plaintiff was a member of a protected group, protected minority group; that the plaintiff was qualified for a job and applied; that the plaintiff was rejected; and that the position stayed open. Those four --
04-6964 +++$+++ 28665 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, in -- in Batson, I guess the opinion for the Court suggested that it was basing it on the title VII cases, the McDonnell Douglas formula. Is that right or not? Or have we gone beyond that?
04-6964 +++$+++ 28666 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's a parallel -- it's based on McDonnell Douglas in the sense that -- that there's a parallel step of prima facie case, shifting the burden of production. The defendant or respondent comes up with an answer, and then eventually the trier of fact decides whether or not the -- the plaintiff or the moving party has been persuasive.
04-6964 +++$+++ 28667 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what happens if he doesn't come up with an answer in -- in this case? What --
04-6964 +++$+++ 28668 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We have --
04-6964 +++$+++ 28669 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- what happens if the prosecutor just says, gee, I -- you know -- or the -- the prosecutor has died? You know, it comes up later in -- in a habeas action. The prosecutor is dead.
04-6964 +++$+++ 28670 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's about four questions, Your Honor. If I can take them one at a time.
04-6964 +++$+++ 28671 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. It -- it's one hypothesis. There is no answer filed by the State as to what the real reason was. What happens?
04-6964 +++$+++ 28672 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The trial -- if the State refuses, willfully refuses to present an answer, the trial court could and most likely will, draw an inference from that intentional refusal and hold that inference against the State.
04-6964 +++$+++ 28673 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you going to say that if -- if there's no answer, then the challenge is presumed to be correct?
04-6964 +++$+++ 28674 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I'm not saying that.
04-6964 +++$+++ 28675 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. So the trial judge can -- can overrule the challenge.
04-6964 +++$+++ 28676 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The -- if -- if there is a --
04-6964 +++$+++ 28677 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It seems to me that's quite different from the standard that requires it go to the jury. You send a case to a jury if there's evidence from which the jury could find for the plaintiff.
04-6964 +++$+++ 28678 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-6964 +++$+++ 28679 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And that's -- it -- it seems to me that's a -- that's much more rigorous than the standard that you've proposed in -- in your brief, and that -- and that other courts use in the Batson case. The Batson inquiry, as -- as I understand it, is -- is simply that, an inquiry. There's a basis to ask the prosecutor the reason. That's all.
04-6964 +++$+++ 28680 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Very much so, Your Honor.
04-6964 +++$+++ 28681 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and that's quite different than sending a case to the jury.
04-6964 +++$+++ 28682 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the standard for -- I believe the standard we're asking -- that's -- that's why I said the standard of sending the case to the jury but with the benefit of a doubt going to the -- obtaining the reason.
04-6964 +++$+++ 28683 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I -- may I go back to your answer to the -- the question whether in the absence of an answer, there is a presumption of a Batson violation, and you said, no, there isn't a presumption --
04-6964 +++$+++ 28684 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
04-6964 +++$+++ 28685 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- where the court has still ultimately got to decide it? What sorts of things could the court consider when it ultimately decides?
04-6964 +++$+++ 28686 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At step one, whether or not there's a --
04-6964 +++$+++ 28687 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ At step three. We've -- we've gotten to step three.
04-6964 +++$+++ 28688 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-6964 +++$+++ 28689 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Step one, whatever the standard is, it has been met. Step two, silence. We get to step three. What does the court consider at step three?
04-6964 +++$+++ 28690 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The court considers the plaintiff's showing of a prima -- the -- the objector's showing a prima facie case. The court considers the answer given by the challenger.
04-6964 +++$+++ 28691 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which is zero. Which is silence. There is no answer.
04-6964 +++$+++ 28692 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If -- if -- I'm sorry, Your Honor. I misunderstood. I didn't realize it was a silence issue.
04-6964 +++$+++ 28693 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-6964 +++$+++ 28694 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If there's a prima facie case and if the prosecutor or the challenger willfully refuses to answer, the trial judge is entitled to draw an inference from that refusal to answer and I believe most likely would draw the inference that there's something wrong here and therefore would find a prima facie case.
04-6964 +++$+++ 28695 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. But what I'm getting at is let's assume he doesn't draw that inference. Ultimately at step three, he says, no. I am going to reject the challenge. I do not think that the burden of persuasion has been met. What -- what considerations might lead him to do that, assuming that step one has been satisfied?
04-6964 +++$+++ 28696 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do not know, Your Honor, because we have never seen a situation in which a --
04-6964 +++$+++ 28697 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Let me --
04-6964 +++$+++ 28698 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- prosecutor has refused to answer.
04-6964 +++$+++ 28699 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let me suggest this. Wouldn't -- wouldn't he almost necessarily have to consider at step three those reasons that the prosecutor has not given, but which he thinks might be good reasons for the challenge which do not raise Batson discrimination?
04-6964 +++$+++ 28700 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We have argued in our brief that it's not correct for the trial judge to speculate as to the prosecutor's possible reasons.
04-6964 +++$+++ 28701 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right. That's what I'm -- that's what I'm getting at. And -- and what I'm troubled by is I -- I take your -- I understand your point, that it's not appropriate for him to speculate and supply an answer at stage two. But if stage one -- at stage one, the objector has satisfied the test and at stage three, the -- the court may, nonetheless, reject the challenge, I don't know what he would be rejecting the challenge for unless it is on the basis of this kind of, as you put it, speculation about what the reasons might be. So help me out there.
04-6964 +++$+++ 28702 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I agree, Your Honor. I don't know what the basis would be either if a prima facie case --
04-6964 +++$+++ 28703 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then why don't you have to say at that stage, if there is silence on the part of the government, he's got to find the violation?
04-6964 +++$+++ 28704 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I -- the only words that would differ would be got to. I would say he'd be most likely to if there --
04-6964 +++$+++ 28705 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if he doesn't have to, he's got to have some reason for doing it. This is not a matter of whim. And if he's got to have a reason and his reasons may not legitimately be those speculations on what might be a legitimate basis for the challenge, but which were never raised by the State, and you can't think of any other reasons -- and I admit I can't right now -- then it seems to me that he would pretty -- it would -- it would follow that -- that he would be required to -- to uphold the challenge.
04-6964 +++$+++ 28706 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that it -- it would require -- that he would ultimately uphold the challenge but on the basis of drawing an inference from the refusal to answer, and those two -- adding two and two together, adding the --
04-6964 +++$+++ 28707 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but -- but the refusal to answer -- I just -- you know, it happened so long ago, Your Honor. I had a lot of other -- I -- you know. But it comes up later, and he says I just don't remember why I challenged this --
04-6964 +++$+++ 28708 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the case of don't remember, Your Honor --
04-6964 +++$+++ 28709 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Don't remember.
04-6964 +++$+++ 28710 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Batson has been the law for 18 or 19 years. In California, we've had Wheeler for 25 years. Any competent prosecutor who was challenging minority jurors and was faced with a Batson motion would make notes of some kind and keep a record of some kind. If he did not do that, he would not be acting competently and the trial court would be entitled to draw an inference from that claim, refusing to remember.
04-6964 +++$+++ 28711 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Bedrick, in your brief you were very, it seemed, uncomfortable about addressing this question. You said it's just like you go through the same litany as title VII, that is, the plaintiff meets a burden which is in title VII very easy to meet --
04-6964 +++$+++ 28712 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-6964 +++$+++ 28713 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- stage one. Then the defendant has to come up with a nondiscriminatory reason, and then you find out if that was pretext. You kept saying in your brief what you said a moment ago that you have never seen a case. You said it never happens. It never happens that the prosecutor stands silent. So this is a hypothetical, academic question. But I think you're being pressed to say, well, suppose it does happen, and I take it that your answer is in that case the person who's raising the Batson challenge wins. But you're -- you're not willing to say certainly. I mean, you seem to say -- well, why are you uncertain?
04-6964 +++$+++ 28714 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the title VII test and the Batson test are parallel, but not identical. And in the --
04-6964 +++$+++ 28715 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But suppose you had in a title VII case the employer says, I'm not going to give you a nondiscriminatory reason. You -- you've gone through the McDonnell Douglas. The plaintiff has shown those four things. The employer says, I'm not going to give you any reason. Then what happens?
04-6964 +++$+++ 28716 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The trial -- the trial court would find for the plaintiff because under the title VII formula, which this Court has established in the McDonnell Douglas/Furnco line of cases, the finding of a prima facie case entitles the plaintiff to a presumption.
04-6964 +++$+++ 28717 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's because --
04-6964 +++$+++ 28718 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And it's bursting the bubble --
04-6964 +++$+++ 28719 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wow.
04-6964 +++$+++ 28720 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- slightly --
04-6964 +++$+++ 28721 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I don't think we've ever said that. I thought we've -- we've said to the contrary, that the ultimate question is always, did the plaintiff show by a preponderance that -- that the reason was discrimination. That's what I thought our -- our cases say, not -- not automatically to punish the employer for not giving a reason, he loses, which is what you want to do here.
04-6964 +++$+++ 28722 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The employer will always give a reason and the challenger will always give a reason because --
04-6964 +++$+++ 28723 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What happens in a title VII case if, in fact, we meet just what Justice Ginsburg said? Can you have a jury trial? Imagine a situation, jury. Okay?
04-6964 +++$+++ 28724 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-6964 +++$+++ 28725 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The plaintiff gets up and establishes the four points. Defense. The defense rests. Now, does the judge send it to the jury, or does the judge direct a verdict for the plaintiff?
04-6964 +++$+++ 28726 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe in the title VII context the judge would direct the verdict for the plaintiff.
04-6964 +++$+++ 28727 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Unusual. I --
04-6964 +++$+++ 28728 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and it seems to me the -- your -- there's some difficulty in -- in trying to equate Batson challenges and -- and title VII, and that's because your beginning point is that you base -- you -- you require too much of the prima facie case. It -- it seems to me all that's required under Batson is reason to inquire.
04-6964 +++$+++ 28729 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-6964 +++$+++ 28730 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And that's -- that's a special use of the term prima facie. Now, if -- if we want to be consistent with the use of the word -- of the term, prima facie, from Batson to title VII, then it seems to me this inquiry is necessary. But -- and you're the one that puts it in motion by setting this rather high threshold that is the same as to go to a jury. I disagree with that.
04-6964 +++$+++ 28731 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I suggest you might have put the high threshold because it's a threshold that judges are familiar with and can use, whereas reason to inquire would be a fine test for when a judge is permitted to demand a response but it cannot possibly be a test for when a judge is required to demand a -- what does -- what does reason to inquire mean? Is that a -- is that a standard that -- that can be applied in law?
04-6964 +++$+++ 28732 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I accept the suggestion from the Court that the standard could also be reason to inquire. We would be -- we would be happy with that standard.
04-6964 +++$+++ 28733 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What does it mean?
04-6964 +++$+++ 28734 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the Batson procedure would work.
04-6964 +++$+++ 28735 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What does it mean?
04-6964 +++$+++ 28736 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It means when there is the purpose of --
04-6964 +++$+++ 28737 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Any suspicion whatever.
04-6964 +++$+++ 28738 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Pardon me, Your Honor?
04-6964 +++$+++ 28739 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Any suspicion -- he strikes one black from the jury.
04-6964 +++$+++ 28740 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, not any suspicion whatsoever. It's a higher standard --
04-6964 +++$+++ 28741 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It has to be reason to inquire.
04-6964 +++$+++ 28742 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It has to be reason to inquire.
04-6964 +++$+++ 28743 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's --
04-6964 +++$+++ 28744 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would vary depending on the circumstances. The --
04-6964 +++$+++ 28745 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and is that like permitting discovery to go forward?
04-6964 +++$+++ 28746 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's essentially what step one of Batson is --
04-6964 +++$+++ 28747 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and is that standard less than going to a jury?
04-6964 +++$+++ 28748 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-6964 +++$+++ 28749 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. So that -- that's -- I recognize that it's been difficult for us to find an analog. It may be that Batson is sui generis. It may not be. If we're going to talk about what judges are familiar with, then it's prima facie case and it's title VII.
04-6964 +++$+++ 28750 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But title VII doesn't quite work because the -- the prima -- the definition for prima facie case in title VII is different, and it's easier. If we were to put in the -- they're -- they're parallel tests. They're not identical. If we were to import the title VII prima facie case in a Batson, it will be satisfied every time there was a challenge to a minority juror because under any -- every such situation, there would be a minority juror who was qualified because he passed for cause who was rejected and the seat would be open. That would be -- that's a -- that's even a lower standard than we are --
04-6964 +++$+++ 28751 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then are you saying, look, judge -- imagine you had a jury on this question. If the defendant has made out enough of a case that you would send it to the jury, then go to step two and ask the questions as to why.
04-6964 +++$+++ 28752 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, that's my position.
04-6964 +++$+++ 28753 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's it. Fine.
04-6964 +++$+++ 28754 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Could -- could I take that a step further? Would this -- would this be a -- a fair summary of -- of your position on all the steps? Step one, there must be enough that would justify sending the question to the jury if it were a jury question.
04-6964 +++$+++ 28755 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-6964 +++$+++ 28756 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Number two, if there is silence at stage two or in Justice Scalia's example, the prosecutor just can't remember, and we then go to stage three, your position is as follows. At stage three, number one, there is enough -- there is enough evidence on the record from which the judge can find a Batson violation. Number two, there is a state of the evidence from which he is not required to find a Batson violation. Sometimes, maybe most times, the prosecutor's silence will be a reason to find a Batson violation, in addition to those that were stated at stage one. And finally, theoretically -- theoretically even with the prosecutor's silence, the evidence at stage one, sufficient as it might be to get to the jury, will not be persuasive. And there may be outlying cases in which, even with prosecutorial silence, the court will say I don't see the Batson violation shown here. Is that a fair statement of your position?
04-6964 +++$+++ 28757 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, it is.
04-6964 +++$+++ 28758 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
04-6964 +++$+++ 28759 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ An example -- the only example that I can think -- the only practical example that I can think of, however, where a trial court is likely not to draw a strong negative inference from the prosecutor's failure to answer is in the situation suggested where it reviews it -- reviewed it on appeal and the prosecutor died. Under those circumstances, the -- maybe there -- there may be notes in the file, but if there aren't notes in the file, the prosecutor's failure to answer is beyond his control.
04-6964 +++$+++ 28760 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I take it in your view the California standard is more strict than the title VII standard for prima facie case.
04-6964 +++$+++ 28761 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, in my view it is.
04-6964 +++$+++ 28762 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the California court at least appears to say it's the same.
04-6964 +++$+++ 28763 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- I believe the California court has misread title VII practice in several ways. I believe it has -- it misread what is produced at the -- it has misread what the plaintiff's burden is to produce a prima facie case. And under title VII, the plaintiff's burden is merely, as I stated, to show that a member of a protected group qualified, applied, rejected, position open.
04-6964 +++$+++ 28764 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And do we say that that equates to a standard of more likely than not or do we not say that?
04-6964 +++$+++ 28765 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- those facts under title VII must be proved more likely than not. And from that, under the title VII McDonnell Douglas formula --
04-6964 +++$+++ 28766 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is -- is step one of title VII more likely than not?
04-6964 +++$+++ 28767 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-6964 +++$+++ 28768 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I don't see how that's much different from what California is doing.
04-6964 +++$+++ 28769 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought step one was evidence from which it could be found more likely than not.
04-6964 +++$+++ 28770 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes --
04-6964 +++$+++ 28771 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He doesn't have to prove more likely than not at stage one, as I understand your position. He has to put in enough evidence from which a fact finder could find more likely than not if he accepts all the evidence as true and so on.
04-6964 +++$+++ 28772 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor, under -- under Batson. The tests are not identical. Here -- I'm sort of stumbling over my tongue a bit in trying to point out that the tests are parallel but they are not identical.
04-6964 +++$+++ 28773 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can I ask you a question about the other part of your case, which is that the judge cannot consider in -- in step one anything except the -- except the -- the racial strikes and -- and nothing else and cannot even speculate as to what causes might have produced the strikes? That seems to me rather extreme.
04-6964 +++$+++ 28774 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is --
04-6964 +++$+++ 28775 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How can you possibly decide whether it -- a reasonable juror could find this? Let's assume that all three of the -- of the minority, three blacks are stricken by the prosecution. The judge, the district judge, knows that everyone of them is -- is a -- a defendant's lawyer, every single one. He has to blot that out of his mind?
04-6964 +++$+++ 28776 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, that's a -- in that example, which I respectfully submit would be rather extreme and unusual, the trial judge should still not speculate. The reason why the trial judge should not speculate is shown by the facts of this case. With regard to juror Sara Edwards, the trial judge speculated on two possibly reasons. One possibly reason was that she had a relative who had been arrested for a serious crime 35 years ago, and the second reason that he speculated was that she had -- was -- did not know whether she could be fair in the case of a death of a child. As to the second reason, that would show -- if any bias, that would show pro-prosecution bias.
04-6964 +++$+++ 28777 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But once -- once you have the lenient test that you've established, why isn't it enough to say even with that -- even with that speculation, a reasonable juror could find? Once you have that lenient test, I don't know why you have to exclude the speculation. I mean, there -- what if all three of the blacks -- it's a case in which the -- the visual evidence is significant and all three of the blacks are blind and -- and you tell me the judge has to say, oh, no, it -- it can't be that -- that reason that they were stricken. That doesn't make any sense.
04-6964 +++$+++ 28778 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In presenting a test -- in presenting a test or significant formula, every once in a while there will be a case where this test is slightly over-inclusive. And Your Honor has given an example of that. But if that's the case, the trial judge will say, you know, I bet I know what the answer is. Mr. Prosecutor, what's the answer? The prosecutor gives the answer. The trial judge says, yes, I find that credible. Motion denied.
04-6964 +++$+++ 28779 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And yes, but one of the things, it seems to me, you're all overlooking is that if it's as obvious as they're all blind, those would be challenges for cause.
04-6964 +++$+++ 28780 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Very much so, Your Honor.
04-6964 +++$+++ 28781 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We're talking about challenges where there are no -- no obvious basis for it.
04-6964 +++$+++ 28782 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, in practice, Mr. Bedrick, is it always worked out like this kind of a minuet? First we have step one and step two. Isn't a lot of it just at a bench conference?
04-6964 +++$+++ 28783 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The minuet may -- may -- will be most likely at a bench conference. In this case the two motions were discussed. One was discussed during a jury recess. The other was discussed the next morning before the jury was assembled. So it may be a minuet, but it's a -- I'm not sure who the -- there's a 1-minute waltz. So it is more like a 1-minute waltz than a full minuet.
04-6964 +++$+++ 28784 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why do we need the same -- the same rules for State and Federal courts? You have here the California Supreme Court. Why do they have to use the same -- the same minuet that the Federal courts do?
04-6964 +++$+++ 28785 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because under Batson and then under Purkett v. Elem and under Hernandez v. New York, this Court has declared that Batson is a rule of Federal constitutional law, that the purpose of Batson is to protect the Sixth and Fourteenth Amendment rights of the jurors to equal protection and not being "perempted" for racial reasons. In --
04-6964 +++$+++ 28786 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but -- but State courts have different rules of evidence. They have different rules of procedure, and we allow Federal cases to be determined under those State rules of evidence and State rules of procedure so long as they provide due process.
04-6964 +++$+++ 28787 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The California --
04-6964 +++$+++ 28788 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why can't -- why can't the Batson question similarly be decided but decided under State rules of procedure?
04-6964 +++$+++ 28789 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The California Supreme Court made no claim to be deciding this case under State rules of procedure. It asserted repeatedly that in this case that it was deciding this question under its understanding of Federal law, under its understanding of the Batson line of cases, and that it was interpreting Federal law and nothing more. My opponent argues that there should be a State law question, but that's a different position than taken by the State supreme court.
04-6964 +++$+++ 28790 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you would have no objection to our limiting our opinion, saying, you know, reversing and remanding and saying this is not Federal law. It's not what we would do in Federal court. Of course, the California Supreme Court is free to have some different system.
04-6964 +++$+++ 28791 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would respectfully disagree, Your Honor.
04-6964 +++$+++ 28792 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, you don't want us to do that, do you?
04-6964 +++$+++ 28793 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. I respectfully disagree. This is -- I believe this is a question of Federal constitutional law that needs to be applied everywhere. This is a rule followed in 12 -- all 12 Federal district -- circuits and in 48 of the 50 States.
04-6964 +++$+++ 28794 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't it sometimes even when you're not involved with a constitutional question, if you have a Federal claim in a State court -- Byrd against Blue Ridge is one example -- the Federal procedure -- that the State procedure needs to be modified so it's in sync with the Federal?
04-6964 +++$+++ 28795 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree, Your Honor.
04-6964 +++$+++ 28796 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That was a question of what kind of questions go to juries.
04-6964 +++$+++ 28797 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-6964 +++$+++ 28798 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The State said ordinarily we don't give this kind of question to the jury, but we're dealing with a Federal claim, and the Federal procedure trumps.
04-6964 +++$+++ 28799 +++$+++ TRUE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes, Your Honor. If the Court has no more questions, may I reserve the rest of my time for rebuttal?
04-6964 +++$+++ 28800 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Very well, Mr. Bedrick. Mr. Schalit.
04-6964 +++$+++ 28802 +++$+++ FALSE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Petitioner's position would require this Court to abandon Batson's requirement for a shifting burden of production or to announce a new rule of constitutional evidence that burdens of production shift based on improbable inferences. The standard recognized by the State is consistent with Batson. Batson provided for a shifting burden of production and it directed the courts to look to this Court's title VII cases to see how that process operates. In title VII --
04-6964 +++$+++ 28803 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, do -- do you agree that the California standard is more rigorous than the standard applied by the Federal courts and by most State courts?
04-6964 +++$+++ 28804 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. California's standard is consistent with Batson. Now, there are very, very few courts that have actually considered the precise question presented here. California does not stand alone in its analysis of this --
04-6964 +++$+++ 28805 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think the California rule is the same as the Federal rule?
04-6964 +++$+++ 28806 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the Federal rule has been stated in many different ways. The Federal rule has been stated by lower courts in many different ways. It is certainly the same as or consistent with the Federal rule as announced by Batson, which is the only question that matters because in Batson --
04-6964 +++$+++ 28807 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what about Hanson, and is it Purkett v. Elem?
04-6964 +++$+++ 28808 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. In -- in Purkett and in -- I don't know whether it was Hernandez -- I may have misheard you -- the Court reiterated the three-step process. All of those cases, however, rely on the existence of a step one with a shifting burden of production before reasons must be given and they must be given when step one is met. The objecting party must make a prima facie case. That does not happen until he has shown that it is more likely than not that there is discrimination.
04-6964 +++$+++ 28809 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's in -- in the title VII context, certainly you don't have to show more likely than not to get past the initial threshold. All you have to do is to make four showings that -- that Federal courts have recognized are rather easily made. So the real show doesn't come until the pretext stage. But it's not that you have to show anything by a preponderance of the evidence, that -- you don't have to show discrimination by a preponderance of the evidence under title VII. You just have to show four things from which someone may but not must infer discrimination.
04-6964 +++$+++ 28810 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, in the title VII circumstance, you are correct. The ultimate, ultimate finding is, of course, made after the employer responds if the employer chooses to respond in light of all of the evidence. The employer may not respond, for example, if the employer does not believe those four elements have been established or the jury would find them to be established. However, if those four elements are established in the minds of the jury by a preponderance of the evidence, according to this Court in St. Mary's Honor Center and in -- in Burdine or Burdine, the obligation is on the fact finder at that point to find for the employee if there's no response at step two because a presumption is established. And Furnco expressly states that there is a presumption because the prima facie case if established makes it more likely than not that there was discrimination. The prima facie case in the run of the -- run of the cases we know the reason that those four facts are true is that there was discrimination in the face of silence.
04-6964 +++$+++ 28811 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought all it did was shift the burden of production to the defendant. It doesn't -- the showing at stage one doesn't involve the burden of persuasion.
04-6964 +++$+++ 28812 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. It -- it shifts the burden of production, but the reason it does so is that, in the language of Wigmore, the employee, or in a title VII case, the objecting party, has gone further. The -- that party has not simply removed the obligation to present evidence from which one can infer a fact. But he has gone further and presented sufficient evidence to entitle that party to prevail in the face of his opponent's silence. And Justice Powell, writing the opinion in Batson, clearly referred to the Court's title VII cases, including the opinion that he wrote for the Court in Burdine, which in the footnote expressly stated that the McDonnell Douglas presumption does not adopt the prima facie case in the sense of merely allowing the jury to make a finding. It stated that -- adopted the prima facie case with a shifting burden of production, and that is one with a presumption that entitles the party to prevail. The same is true --
04-6964 +++$+++ 28813 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, you -- you can say that its words say that, but what it does doesn't say that. I mean, to establish a prima facie case, all you have to show is that -- that you were qualified for the job, you're a member of a minority, and you weren't hired, and somebody who's not a member of a minority was hired. Do you think that's enough to show that it's more likely than not that race was the basis and that's -- you know, that's how those cases pan out? That's enough for a prima facie case. Is that enough to say it's more likely than not that race was the reason?
04-6964 +++$+++ 28814 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is enough to say that when unexplained, when there's no response from the employer, yes. The jury is instructed that --
04-6964 +++$+++ 28815 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Really?
04-6964 +++$+++ 28816 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That --
04-6964 +++$+++ 28817 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you really believe that? I mean, in -- in a large -- you know, large -- large operation, you -- you're a minority. You apply for a job. You're qualified for it. You aren't hired, but somebody who's not a minority is hired. That alone, without any other information, is enough to enable somebody to find that it is more likely than not that -- that race was the reason? My goodness. I -- I don't think that's an accurate description.
04-6964 +++$+++ 28818 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that is -- Your Honor, sorry. That was my reading of -- of St. Mary's when -- and Burdine when a --
04-6964 +++$+++ 28819 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Hicks does say that. I think you're right.
04-6964 +++$+++ 28820 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It does say it. I'm just saying --
04-6964 +++$+++ 28821 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. But suppose that -- but Wigmore says that the words, prima facie case, can be used either to describe the Hicks situation, which is the plaintiff produces the four elements. The defendant sits silent, and the judge says, directed verdict for plaintiff. That's what Hicks seems to say. And Wigmore says the words, prima facie case, can mean that. But then he says the words, prima facie case, can also mean a different thing, and the different thing is what the judge says then is, jury, you may find for the plaintiff, not you have to. And so I guess our question is which of the two meanings shall we take here. And my question to be -- to you is, why not the second? After all, the whole point of Batson is in suspicious circumstances to explore matters further, and once you get to the point where you're willing to tell a jury, jury, you may, you have suspicious circumstances.
04-6964 +++$+++ 28822 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, in the title VII case, I believe that what happens is that the case does go to the jury. It is not a directed verdict. It is --
04-6964 +++$+++ 28823 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if it's not a directed verdict, then a fortiori, then every analogy works against you.
04-6964 +++$+++ 28824 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. To be -- let me -- let me be perhaps slightly more precise. It is not a directed verdict. It is a requirement for the court to instruct the jury to make a finding if -- if in fact it finds all the four elements to be true. That is still a jury question.
04-6964 +++$+++ 28825 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. Assuming the four --
04-6964 +++$+++ 28826 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-6964 +++$+++ 28827 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- elements, directed verdict. If you're right --
04-6964 +++$+++ 28828 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-6964 +++$+++ 28829 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- about that, which is what Hicks says --
04-6964 +++$+++ 28830 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-6964 +++$+++ 28831 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- we have a choice, a fork in the road. Take it. All right.
04-6964 +++$+++ 28832 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-6964 +++$+++ 28833 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which fork? And I put the reason why. Your opponents will argue, it seems plausibly, take the second fork because we have the suspicious circumstance.
04-6964 +++$+++ 28834 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because that would upset the balance that -- that Batson has drawn. Suspicious circumstance was the same type of problem confronted in Rosales-Lopez and Ristaino. The Court adopted a possibility of a racial bias test for the purpose of inquiring of jurors on voir dire as to whether there's discrimination for use in a Federal system as a rule of criminal process and supervision over the Federal courts. It refused to apply that test, which is akin to the test adopted by the Ninth Circuit and advocated by petitioner, in Ristaino because it recognized that we should not adopt a divisive assumption that everything turns on race. It would be a very simple matter to inquire of jurors on voir dire about their racial biases on a mere possibility. The same argument about let us simply inquire and find out could be applied. After all, these --
04-6964 +++$+++ 28835 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On step one, I take it it's not enough to simply say, look, the person challenged is a member of a minority group. What more must be shown?
04-6964 +++$+++ 28836 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. I would agree that that is simply not enough. And Batson demonstrates that that is not enough because in Batson there were four blacks challenged, all four blacks in a case involving a black defendant. You must show under the totality of the circumstances at Batson -- as Batson says, that there's discrimination, and that includes circumstances that may refute the case because, as Batson says, the statements of the prosecutor and questions --
04-6964 +++$+++ 28837 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I'm talking about step one.
04-6964 +++$+++ 28838 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, and this is step one, Your Honor.
04-6964 +++$+++ 28839 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is all step one?
04-6964 +++$+++ 28840 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This is all step one. Batson, at page 97, states that a prosecutor's questions and statements on voir dire in exercising the challenges may support or refute an -- an inference of discrimination. The party who is making the claim is in the best position, any party who wants to be in, in terms of making a claim to a fact finder. He has the fact finder before him. That fact finder has witnessed the same thing as the party. They are all professionals and skilled in this area. And if that single juror was struck because of race, the party can say that it was the same race as the defendant if that may be a fact. It may be that that -- there's no apparent explanation because, let's say, it was a -- another prosecutor who has struck --
04-6964 +++$+++ 28841 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why -- why is the defense attorney in a better position to explain the -- the motives of the prosecutor than the prosecutor?
04-6964 +++$+++ 28842 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not --
04-6964 +++$+++ 28843 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't understand that.
04-6964 +++$+++ 28844 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not to explain the motives, Your Honor, but to confront the totality of the circumstances that are present in that courtroom that Batson requires that party to confront.
04-6964 +++$+++ 28845 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The question is what motivated the prosecutor. Correct?
04-6964 +++$+++ 28846 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-6964 +++$+++ 28847 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's hard for me to see how the -- the defense counsel is in a better position than the prosecutor to show that.
04-6964 +++$+++ 28848 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He's in a better -- he is in the position to meet his obligation under Batson to explain why, given --
04-6964 +++$+++ 28849 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The question is not what motivated the prosecutor unless and until the step one showing can be made.
04-6964 +++$+++ 28850 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, and thank you. That is a more precise response.
04-6964 +++$+++ 28851 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, of course, you can afford to be very rigorous at step two because your threshold at step one is high. The threshold is -- if the threshold at step one is -- is easier to cross, then we could be more rigorous at -- at step two.
04-6964 +++$+++ 28852 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Step two does not have any persuasiveness component to it. There is no rigorousness to it in my mind. It is merely a statement of a race-neutral reason or reasons. It is not the time to persuade, and we know that from Purkett.
04-6964 +++$+++ 28853 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And here there was no reason given.
04-6964 +++$+++ 28854 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Here, because there was no prima facie case, Your Honor, yes, there was no reason given.
04-6964 +++$+++ 28855 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So why shouldn't this operate as so many things do in -- in an unfolding proceeding? If someone stands silent -- and we're not involved with a Fifth Amendment privilege -- there's an inference -- an adverse inference. Worse, take a -- a discovery and one plaintiff asks for discovery from -- from the -- the defendant, and the defendant says, sorry, I'm not going to give you what you want. What is the consequence of that if the defendant, being presented with a opportunity or a requirement to give a reason or to produce something, says, I won't?
04-6964 +++$+++ 28856 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There may be an adverse inference that would be drawn from that. There might be issue preclusion. There might be a termination sanction. There's a range, as I understand civil procedure, of -- of options that are available. In this context, of course, petitioner asserts that there could be an adverse inference drawn from silence. However, if the standard is, as he proposes, that there is simply a mere inference from which discrimination can be detected, the silence of the striking party may have no informative content.
04-6964 +++$+++ 28857 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But one of the -- if we're going to continue with that analogy to someone who says I won't make discovery, is not just an inference but that you take what the opposing party says to be true on that issue.
04-6964 +++$+++ 28858 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. There -- there could be issue preclusion. I assume that's --
04-6964 +++$+++ 28859 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is not -- not issue preclusion. I mean, this is -- that is -- the defendant who stands silent is going to lose.
04-6964 +++$+++ 28860 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but in -- in this circumstance, the -- the striking party's silence is one -- when the test is set at the inference level not at the more likely than not level, the -- the test is one -- I'm sorry -- not the test, but the -- the silence is one of strategic judgment. Let me balance the risk of having the adverse inference drawn against me against the risk of disclosing my trial strategy or my voir dire strategy.
04-6964 +++$+++ 28861 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I must confess I'm a little puzzled about the discussion of the trial strategy because is it not correct that whenever the judge thinks step one has been met, the prosecutor always answers the question?
04-6964 +++$+++ 28862 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Does always answer the question because it is understood that, having shown at step one it is more likely than not that there's discrimination, silence at step two will result in an adverse finding. And --
04-6964 +++$+++ 28863 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well -- well, whatever it is, he -- generally they are not silent when the judge says I think step one has been met. I want to be sure understand California's position on one point. Is it your view in -- in California that the judge must decide himself that it is more likely than not that -- that discrimination is present before you proceed to step two?
04-6964 +++$+++ 28864 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-6964 +++$+++ 28865 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, that is not the test in an ordinary tort case in California, is it?
04-6964 +++$+++ 28866 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In a case of -- of --
04-6964 +++$+++ 28867 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In an ordinary tort case --
04-6964 +++$+++ 28868 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
04-6964 +++$+++ 28869 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- if the judge, at the end of the plaintiff's case, says I'm not sure what the answer is, but there is enough evidence here to submit to the jury, so I'm going to overrule the motion for judgment -- judgment at the end of the case. Now, that's a different test than you say is appropriate under Batson, is it not?
04-6964 +++$+++ 28870 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, because in that circumstance in deciding --
04-6964 +++$+++ 28871 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you -- so you have two -- in California you have two definitions of a prima facie case, one for Batson and one for all normal tort litigation.
04-6964 +++$+++ 28872 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In California, we like every other jurisdiction, as far as I know, probably has two definitions, just as this Court does.
04-6964 +++$+++ 28873 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And is it not true that the definition that your opponent asks for is the same definition that would apply in tort litigation in California and in most States of the country?
04-6964 +++$+++ 28874 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. That is my understanding.
04-6964 +++$+++ 28875 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you're asking for a special rule for California's application of Batson.
04-6964 +++$+++ 28876 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, because in that circumstance --
04-6964 +++$+++ 28877 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It sounds like you are in that it's a tougher standard than normal. Here you had a situation, did you not, where there were three black prospective jurors and the prosecutor struck all three?
04-6964 +++$+++ 28878 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-6964 +++$+++ 28879 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And could that present enough evidence that the fact finder, if it were referred to the fact finder, could find a Batson violation?
04-6964 +++$+++ 28880 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. A fact finder could make a -- a conclusion from that, but the --
04-6964 +++$+++ 28881 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So why is that not enough to satisfy the standard to require the prosecutor to give an answer?
04-6964 +++$+++ 28882 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because, for example, the appellate perspective as to whether a fact finder could make that conclusion, could any rational finder of facts draw that conclusion.
04-6964 +++$+++ 28883 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it because the judge could imagine reasons that the prosecutor might have had?
04-6964 +++$+++ 28884 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is not a question of -- of imagining reasons, Your Honor. It is a question of the judge bringing his or her observation to what has occurred in the courtroom, and to return to the example --
04-6964 +++$+++ 28885 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would your answer here be exactly the same if there had been 12 African American prospective jurors and all 12 were struck? Does that make a difference?
04-6964 +++$+++ 28886 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, it might in that the -- the inference would be probably -- it would be much stronger the greater number you have. But, for example, those 12 could theoretically all still be defense attorneys.
04-6964 +++$+++ 28887 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but your test is -- is that the judge under California law is required to find that there's a strong likelihood or a reasonable likelihood, but he must do that without hearing the prosecutor's reasons. That's your position. Right?
04-6964 +++$+++ 28888 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. Step one, because you do not hear reasons until, under JEB, you've gone past step one and get the reasons at step two. Under Batson, you do, however, consider information that may refute the inference. Batson tells the judge to do that and to consider the totality of the circumstance. And Justice Stevens's observation about the difference between the two tests is true, but in the -- in the circumstance in which the question is whether it goes to the jury to avoid, for example, non-suit, that is because there is a fact finder for the case to go to separate from the judge, and that fact finder does not have to make an intermediate determination. Here the court has --
04-6964 +++$+++ 28889 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but it would be the same rule if it was a bench trial. The judge could say to him -- say, I think you may have enough but I'm not 100 percent sure yet. I'd like to hear the defense -- hear the rest of the case. He doesn't -- it does not really -- the -- the definition of a prima facie case does not depend on whether it's a jury trial or a bench trial.
04-6964 +++$+++ 28890 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But it does also turn, Your Honor, in part on the nature of the interest at issue, and the particular process that the Court set up in Batson to create an order -- order -- system of proof and to allow the proper balance to be struck between the importance of peremptory challenges and their use in selecting a fair and unbiased jury and the interest in assuring that there has not been a constitutional violation, much for the same reason that in Ristaino we do not inquire on mere possibility. There are countervailing interests. In Ristaino there has to be much more than a mere possibility. In Batson, the Court sought to move away from the difficult-to-establish standard of Swain to something that would be more flexible yet still maintain the State's interest in having a peremptory challenge system. Your Honors, California does not stand alone in its interpretation of this test. As I mentioned earlier, there are very few States that have considered this issue. Connecticut, Maryland have done what this Court said it -- they should do, what all courts should do and look at the title VII cases. California has done that. It has not announced a standard that is inconsistent with Batson. It has announced a standard that follows from this Court's direction in Batson. It has required a shifting burden of production which does not occur until there has been either a presumption or a strong mass of evidence, to use Wigmore's term.
04-6964 +++$+++ 28891 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think that the -- the steps in this case have to be determined by what we do in title VII, that whatever we do here should be -- should be, must be the same as what we do in title VII?
04-6964 +++$+++ 28892 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it provides a close analogy. It is not -- it is not a perfect fit, no, Your Honor. But it does -- but the Court very carefully directed parties and courts to look to title VII for understanding of the operation of the proof rules.
04-6964 +++$+++ 28893 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but perhaps only for -- for the operation of, you know, what the various steps are. You have to go step one first, step two next, and so forth.
04-6964 +++$+++ 28894 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I believe the phrasing was that it's explained the operation of prima facie burden of proof rules, and that's the footnote on page 94, sort of the operation of the burden of proof rules that is at issue here. And the burden of proof and burden of production rules --
04-6964 +++$+++ 28895 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ A lot of people don't read footnotes. (Laughter.)
04-6964 +++$+++ 28896 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, California's Supreme Court did. Connecticut did. (Laughter.)
04-6964 +++$+++ 28897 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And given the -- given the -- an occasion to do so, I think that's the appropriate path to take.
04-6964 +++$+++ 28898 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could I -- I just confirm my understanding of how the jury selection process in California works? All the for-cause challenges are -- are made and ruled upon. Then there are 12 jurors in the box, and then you make the peremptory challenge juror by juror. Is that correct?
04-6964 +++$+++ 28899 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. There may be more jurors that have been subject to voir dire if a six pack is used, but challenges are only made to those in the box when the box is full, there's a full complement of jurors.
04-6964 +++$+++ 28900 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ After the for-cause challenges have been --
04-6964 +++$+++ 28901 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-6964 +++$+++ 28902 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ been exhausted.
04-6964 +++$+++ 28903 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. And, of course, in California like elsewhere, peremptories are used sometimes to remedy a failure to properly grant a challenge for cause. Your Honors, California's system maintains a proper balance between protection interests and the State's and parties' interests in using a venerable tool for selecting a fair and unbiased juror.
04-6964 +++$+++ 28904 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May -- may I just --
04-6964 +++$+++ 28905 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, please.
04-6964 +++$+++ 28906 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- ask you to clarify one thing? I -- I take it from what you've said, although I didn't understand it from your brief, that California doesn't have any different standard, that they are following the same standard that would be applicable in Federal court on a Batson challenge. Or did I misunderstand you?
04-6964 +++$+++ 28907 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ California is following the standard that we believe Batson has identified. Now, there are certainly Federal courts, such as the Ninth Circuit, that disagree with that. And so all Federal courts do not do what California believes Batson allows to be done. The Ninth Circuit has concluded that California's standard is contrary to and an unreasonable application of Batson. That's Wade v. Terhune, 202 F.3rd.
04-6964 +++$+++ 28908 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you're not arguing that States have flexibility to apply Batson according to different procedural rules. You're arguing that the Ninth Circuit is wrong about what the Federal standard is.
04-6964 +++$+++ 28909 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We're arguing, first, the Ninth Circuit is wrong and that California's rule is consistent with Batson. Now, as to whether other rules may apply, Batson has a footnote stating that it was not going to attempt to instruct courts on how to apply its process. That might leave room for other States to come up with alternate systems of proof. What is important here is that California's system is consistent, and as respondent, we are not seeking to require all States to do something. Rather, as the respondent, it is sufficient that California's process is acceptable just as California's process was acceptable in Smith v. Robbins for handling cases in which there are no nonfrivolous appeals on issues. A variety of standards perhaps could be tolerated.
04-6964 +++$+++ 28910 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Schalit, can you give me some reason why I should care a whole lot about this? What's the big deal? I mean, so what if we adopt a very minimal standard. So what. It just means you have a bench conference and the -- and the judge asks, you know -- you know, you struck three -- three blacks. It, you know, looks suspicious to me. I'm not sure it's more likely than not. I'm not sure it's even enough to go to a jury, but it looks suspicious to me. Why just -- how come you -- you struck all three blacks that were in the venire? What is such a big deal about adopting a very -- a very low standard?
04-6964 +++$+++ 28911 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because it intrudes on other interests that our State --
04-6964 +++$+++ 28912 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What?
04-6964 +++$+++ 28913 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It intrudes on --
04-6964 +++$+++ 28914 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Like -- like what?
04-6964 +++$+++ 28915 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe it intrudes on the parties' interest and work product and opinion work product and attorney-client privilege and perhaps even the defendant's Sixth -- Sixth Amendment right because it may require divulgence of those types of confidences.
04-6964 +++$+++ 28916 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So the State has an interest in exercising peremptories.
04-6964 +++$+++ 28917 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Your Honor, yes. Using peremptory challenges to select a fair and unbiased jury is very important to the State. Having confidence that the juries are fair and unbiased is important because it allows parties to accept the results of verdicts as being a product of a fair and just system.
04-6964 +++$+++ 28918 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I agree. Of course, the State has a -- has an interest in -- in exercising peremptories. But -- but why is it important that whether the State is doing it in a biased fashion be decided up front at step one instead of having the parties come to the judge and say, you know, why did you do it?
04-6964 +++$+++ 28919 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because --
04-6964 +++$+++ 28920 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's what I can't understand, why that is so important to the State.
04-6964 +++$+++ 28921 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the -- the challenges essentially cease being peremptory and become quasi-challenges for cause. The State has an interest in maintaining the system as a peremptory challenge system and in maintaining Sixth Amendment privileges and work product. And it has --
04-6964 +++$+++ 28922 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it still could be -- I mean, you're not taking away the peremptory. You're saying the -- the prosecutor can give a reason and the judge says, okay, that passes. It wouldn't pass for a challenge for cause, but as a peremptory, it's okay.
04-6964 +++$+++ 28923 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the challenge does cease being peremptory because the Equal Protection Clause has overturned the State statute that provides that challenges -- peremptory challenges are challenges for which no reason need be given.
04-6964 +++$+++ 28924 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But Batson overruled that. I mean, those days are gone. Tell California to stop worrying about that. (Laughter.)
04-6964 +++$+++ 28925 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You cannot make peremptory challenges for any reason anymore. You can't do it for any reason.
04-6964 +++$+++ 28926 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely not.
04-6964 +++$+++ 28927 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So they're gone. Now, once you acknowledge they're gone, what's the big deal about -- about having the parties come up to the judge and just explain to the judge, we didn't do it for a racial reason?
04-6964 +++$+++ 28928 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because Batson could have chosen to adopt a Connecticut-style strict objection system. It did not do that. The Court has made a judgment about the nature of peremptories as peremptories as still being important. Preserving that interest in using those and not disclosing trial strategy is important. Having -- avoiding the risk that a party may respond with unarticulable reasons that erroneously won't be believed is important. We do not want to chill the exercise of challenges for those reasons that are not based on discriminatory reasons but are unarticulable.
04-6964 +++$+++ 28929 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, in avoiding that chill, you're in effect saying the prosecutor is entitled to one or two free discriminatory challenges.
04-6964 +++$+++ 28930 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, certainly there -- there is a somewhat different consequence in -- in the standard as articulated by petitioner in that the striking party does get perhaps a freebie. And California doesn't accept that. We've recognized that in State supreme court cases there are no substantial free challenges.
04-6964 +++$+++ 28931 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The dog is entitled to one bite.
04-6964 +++$+++ 28932 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor?
04-6964 +++$+++ 28933 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I say, the dog is entitled to one bite.
04-6964 +++$+++ 28934 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh. (Laughter.)
04-6964 +++$+++ 28935 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Hopefully not --
04-6964 +++$+++ 28936 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's a New Hampshire rule. (Laughter.)
04-6964 +++$+++ 28937 +++$+++ TRUE +++$+++ MR. SCHALIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Your Honors. Unless there are any further questions.
04-6964 +++$+++ 28938 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Schalit. Mr. Bedrick, you have 4 minutes left.
04-6964 +++$+++ 28940 +++$+++ FALSE +++$+++ MR. BEDRICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Here the prosecutor perempted all three black jurors and left a black defendant to be tried by an all-white jury in a racially tinged case. These facts indisputably present an inference of discrimination. The -- my opponent suggests that silence may be a strategic decision. But we have yet to locate any -- any case where any prosecutor anywhere in a situation remotely like this has chosen silence as the proper strategy. The purpose of Batson is -- is to elicit reasons from the prosecutor and then for the trial court to evaluate those reasons and determine whether or not, looking at the -- all the circumstances and the prosecutor's credibility and the type of case, whether or not their challenge is race-based. Reasons are crucial. In the appendix to our opening brief, we examined 84 cases in the last couple years where discrimination was found in violation of Batson. In virtually all of these cases, the decision turned on the evaluation of the articulated reason. In some of those, the articulated reason was unsupported by the record. From that, there was an inference and a finding of discrimination. In others of those, the articulated reason applied to many white jurors who were not challenged. All those facts existed here. The goals of Batson, which are admirable and important, which should apply in all 50 States, not just in 48, require -- need the reasons to be elicited because Batson won't work unless reasons are known and examined and ruled on on the merits and a record is made. We'd ask this Court to bring California into the mainstream and ask that reasons be called for in California under the same standard that they're called for everywhere else.
04-6964 +++$+++ 28941 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Schalit. The case is submitted.
04-698 +++$+++ 28945 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We will now hear argument in Schaffer against Weast. Mr. Hurd, you may proceed.
04-698 +++$+++ 28947 +++$+++ FALSE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: As Congress recently reaffirmed, the IDEA was enacted to protect the rights of children with disabilities, and the rights of their parents. It is an Act intended by Congress to remedy a long history of discrimination that once kept these children from the schoolhouse door. It is an Act intended, as this Court said in Rowley, to maximize parental involvement and to ensure that these children have access to an appropriate education. Today, the intent of Congress, as shown by the text, structure, and purposes of the Act, calls for the burden of proof in administrative hearings to be placed on the school system, not on the parent. The Fourth Circuit said that placing the burden on the party who initiates proceeding is the traditional rule. But, there is no single traditional rule. Instead, there is a collection of different rules.
04-698 +++$+++ 28948 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now, Congress was silent on this subject of the burden of proof, was it not?
04-698 +++$+++ 28949 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it was, Justice O'Connor.
04-698 +++$+++ 28950 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was there -- did you find anything in the legislative history -- I know some members don't care to look at that, but I would be willing -- [Laughter.]
04-698 +++$+++ 28951 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that shows any discussion at all about the burden-of-proof question?
04-698 +++$+++ 28952 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We are aware of none, Your Honor. What we -- what we have here is a situation where Congress, when it wishes to allocate the burden of proof one way or the other legislatively, knows how to do so. It did so in the APA, for example, while adopting the rule that the Fourth Circuit said applies in this case. But Congress did not adopt the rule in this case.
04-698 +++$+++ 28953 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Excuse me. Why didn't it? I -- why wasn't the APA applicable?
04-698 +++$+++ 28954 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, the APA governs Federal agencies, it doesn't --
04-698 +++$+++ 28955 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I see.
04-698 +++$+++ 28956 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- govern proceedings --
04-698 +++$+++ 28957 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I see.
04-698 +++$+++ 28958 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- under the --
04-698 +++$+++ 28959 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So --
04-698 +++$+++ 28960 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- under the IDEA.
04-698 +++$+++ 28961 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- what it if were -- what it were a school on a Federal base? Are they covered by this Act, by the way? You know --
04-698 +++$+++ 28962 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, there are --
04-698 +++$+++ 28963 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- military schools on military --
04-698 +++$+++ 28964 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- DOD schools --
04-698 +++$+++ 28965 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ DOD schools. What do you do with them? Are they governed by the APA?
04-698 +++$+++ 28966 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't believe so, Your Honor.
04-698 +++$+++ 28967 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No?
04-698 +++$+++ 28968 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They are not. And part of the reason for that has to do with this unique structure of the Act. It is a very nontraditional statute. It is --
04-698 +++$+++ 28969 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you'd be suing some Federal agency. I mean, it has to be some Federal agency that's running that school, and at least for that kind of a school the burden is clearly going to be on the person challenging the agency action.
04-698 +++$+++ 28970 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't agree, Your Honor, and let me explain why, because of the unique structure of this Act, it creates an equal partnership between parents and the school system, with the purpose of that partnership being to produce an Individualized Education Program for the benefit of the child. And, as this Court recognized in Honig, that IEP is the centerpiece of the entire statute.
04-698 +++$+++ 28971 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, well, what if you had an IEP that the parents had initially agreed with, and then they decide it isn't working well, they want to challenge it. They shouldn't have a burden of proof?
04-698 +++$+++ 28972 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, that would be a different situation, and courts below have reached different results on that. We believe that the school system --
04-698 +++$+++ 28973 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you mean the court has -- every court faced with this problem is supposed to decide, in that particular case, who has the burden?
04-698 +++$+++ 28974 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. Some courts have decided that, where either party -- the school system or the parents -- challenges an existing IEP or wants to change an existing IEP, some courts have said the burden is always on the school system, some have said the party challenging has the burden. But --
04-698 +++$+++ 28975 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you --
04-698 +++$+++ 28976 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in this case --
04-698 +++$+++ 28977 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- do you think it's open to a State to adopt a general rule on who has the burden of proof under this statute?
04-698 +++$+++ 28978 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we think that it is not. We believe it is a Federal question that --
04-698 +++$+++ 28979 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Have some States purported to adopt a general rule on this?
04-698 +++$+++ 28980 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Some have, Your Honor.
04-698 +++$+++ 28981 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you think that's invalid?
04-698 +++$+++ 28982 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we believe -- yes, Your Honor, we believe it is a -- it is a Federal-law question. What we do know, however, is that Maryland has adopted no rule on this question, no statute to allocate the burden, one way or the other. And even if a State has the ability to adopt a rule, if it wishes to do so, that still leaves open the question of what rules should apply in the absence of a State-based rule. Now --
04-698 +++$+++ 28983 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Hurd, do you recognize -- to narrow what's at issue -- that the parent objecting to the school's IEP would at least have a burden of coming forward? In other words, I -- are you speaking just of the ultimate persuasion burden? Wouldn't the parents at least be required to come forward with some reason to believe that the State -- the school district's plan is inadequate?
04-698 +++$+++ 28984 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we don't believe that it's necessary. We do recognize that is a different question. In this case, for example, the school system was required to go first, but, initially, the parents were given the burden of proof. It is a -- it is a different question. And let me address, if I may, the different paradigm that this kind of action presents, because it's very different than a traditional statute. It goes back to this unique equal partnership. Congress intends for that child to have an IEP. And there are only two ways to get that IEP. One is a consensus between parent and school system. But if there is an impasse, Congress still wants that child to have an IEP, and there's only one way to carry out that congressional purpose; somebody has to step forward and ask for the hearing officer to make a decision. And it makes little sense to burden a party just because that party is the one who stepped forward to advance the congressional goal by asking for the IE- -- hearing officer first.
04-698 +++$+++ 28985 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What case is your closest one to support the view that the Court should adopt some particular rule here, based on the scheme?
04-698 +++$+++ 28986 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-698 +++$+++ 28987 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What do you rely on? I just don't know where we look for the --
04-698 +++$+++ 28988 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I would --
04-698 +++$+++ 28989 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- guiding principle.
04-698 +++$+++ 28990 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I would -- Justice O'Connor, I would point, for example, to your opinion in Gebser vs. Lago Vista, where you said that the general rule -- this was not a burden-of-proof case, but, in any event, you said the general rule must yield to the purposes of the statute --
04-698 +++$+++ 28991 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay, but let --
04-698 +++$+++ 28992 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in order to figure out --
04-698 +++$+++ 28993 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- let's talk about --
04-698 +++$+++ 28994 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- congressional intent.
04-698 +++$+++ 28995 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- burden-of-proof cases. What is your closest one where the courts are left to do this? What do we look to?
04-698 +++$+++ 28996 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, the Court, last year, in Alaska versus EPA, said, there is no single rule, or principle, governing the allocation of the burden. And in that case, this Court also said two other things that are important here. One is, it put the burden on the Government in that case, regardless of whether the Government was the plaintiff or the defendant. So, the idea of burdening the party who initiates the proceedings was rejected there, and this Court said it looked at the purposes of the statute and saw no reason to place the burden differently, depending upon whether the Government came to court as the plaintiff or took unilateral action forcing the other side to come to court where the Government would be the defendant.
04-698 +++$+++ 28997 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I understand the purposes-of-the-statute argument. The purpose of the statute is always to provide relief to someone who's been injured. And to conclude, from this, that, therefore, the burden should be on the other side, in order -- in order that people who are injured can get relief, is -- I mean --
04-698 +++$+++ 28998 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor --
04-698 +++$+++ 28999 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that will always be the case.
04-698 +++$+++ 29000 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, the purpose of the statute is to obtain for the child an Individualized Education Program.
04-698 +++$+++ 29001 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's fine. I -- that's one sort of relief. But, I mean, you have some relief at issue under every statute. They want a needy person to be given justice. And to say that, since that's their purpose, you should always put the burden on the other side, is -- I just don't understand that argument.
04-698 +++$+++ 29002 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, this is a unique statutory scheme. The purposes of the Act are set forth in the law very clearly -- page 6 and 7 of the addendum to the blue brief -- one is to ensure that all children with disabilities have available to them a free, appropriate public education. And --
04-698 +++$+++ 29003 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Sure.
04-698 +++$+++ 29004 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that purpose is served far more, Justice Scalia --
04-698 +++$+++ 29005 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the Federal Tort Claims Act, for all I know, says, in its prologue -- or, if it doesn't, it should have, or it could have -- the purpose of this is to assure that every person who's been injured by a -- by a Government tort obtains relief.
04-698 +++$+++ 29006 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But let me, then, point out the very different paradigm between the ordinary tort claim statute and this statute. In your ordinary tort claim statute, your ordinary litigation, the law starts out by being neutral with respect to the status quo. And that's the reason why you have this rule -- we don't think it is called "traditional rule" appropriately -- but the general rule that you place the burden on the party who initiates litigation is because the law is neutral with respect to the status quo at the beginning of the lawsuit. Here, the law is not neutral, because the status quo before the hearing is: the child has no Individualized Education Program.
04-698 +++$+++ 29007 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's where I am not understanding your argument. There is an IEP in all of these cases. I would understand your argument if the State -- the school district said, "We're not going to educate this kid. Throw him into the pot with everybody else. We won't give you an IEP." That's not what we've got here. And, in fact, if that's what we had here, the burden-of-proof issue would be of no significance, because the State -- the parents would walk in, and the only thing they'd have to do to satisfy "a" burden of proof would be to say, "They didn't come up with an IEP."
04-698 +++$+++ 29008 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia [sic] --
04-698 +++$+++ 29009 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Instead, what we have here is a fight about whether it's a good IEP or no IEP.
04-698 +++$+++ 29010 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, with all due respect, there is no IEP; there's only a proposed IEP. And that is --
04-698 +++$+++ 29011 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then --
04-698 +++$+++ 29012 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the crucial difference --
04-698 +++$+++ 29013 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- then we're arguing about words.
04-698 +++$+++ 29014 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The point, though, is that with --
04-698 +++$+++ 29015 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The State is not saying, "We will not come up with an IEP." The State is saying, "This is what we're going to give you," and the parents say, "It's not good enough."
04-698 +++$+++ 29016 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, that is not an IEP; that is a proposed IEP. And it is not merely arguing about words; it goes to the heart of the statute. Let me explain why. Three things this Court has said -- or the regulations say. Number one, the regulations say that the parents and the school system are equal partners. This Court said, in the Honig case, that Congress very much intended to strip school systems of the power to act unilaterally with respect to these children. Thirdly, this Court said, in Rowley, the purpose of the statute is to maximize parental involvement. Now, if we're equal partners at the table, what sense does it make for the school system to tell the parents that, "We are equal partners here, but, if you disagree with me once we leave the table, I am presumed correct"?
04-698 +++$+++ 29017 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What sense does it make for the parents to tell that to the school system? I mean --
04-698 +++$+++ 29018 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In an -- in an equal-partnership argument, nobody's got the burden of proof.
04-698 +++$+++ 29019 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, in an equal-partnership argument, nobody has the burden, because they initiated the proceeding to ask for the goal that Congress had in mind --
04-698 +++$+++ 29020 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In all events --
04-698 +++$+++ 29021 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that the child have an IEP.
04-698 +++$+++ 29022 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- in all events, it seems to me that it's still cut against you. This is a statutory scheme where, you point out, the parents have access to some initial consultation. In most instances -- or in many instances, people who are suing an institution don't have that initial access. Here, the parents get much more initial information than most -- than most petitioners do --
04-698 +++$+++ 29023 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They --
04-698 +++$+++ 29024 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- than most -- than most complainants, than most aggrieved persons do.
04-698 +++$+++ 29025 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, actually their discovery rights are less than what they would normally have. But let me go to the idea, then, that we are --
04-698 +++$+++ 29026 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then let --
04-698 +++$+++ 29027 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- equal partners --
04-698 +++$+++ 29028 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- let me point -- let me point out something else. Let's assume a state of affairs -- just assume that school districts -- many of them -- independently and, I think, collectively, because school districts talk to each other -- have a growing body of data and expertise about IEP. And this is the basis on which you say that they should come forward. It seems to me that, too, though, cuts against you, because when a school district has expertise, I think it's entitled to a presumption of governmental deregularity. And you have to challenge it.
04-698 +++$+++ 29029 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we disagree with that, because of the structure of the Act. Again, it makes no sense to be equal partners at the table, and, once you reach an impasse, to say, well, you're going to presume one side is right.
04-698 +++$+++ 29030 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's a well-established principle of administrative law. I've never seen a case in administrative law where a party -- a private party coming in and challenging a Government's action doesn't bear the burden of proof. And Alaska isn't contrary to that. Alaska, they were citing hornbook law, whether -- what happens with the -- if EPA normally does have a burden of proof when it challenges a State action, and that doesn't change, whether they bring it in a State proceeding or whether it's in a Federal proceeding. I didn't think it was quite on point. But maybe you know that I'm wrong on this. And so --
04-698 +++$+++ 29031 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor --
04-698 +++$+++ 29032 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- is there a -- can you think of any instance, in all of administrative law, where you didn't start out with the idea that a person challenging a -- an agency action that's been taken, and so forth, doesn't have the burden of proof?
04-698 +++$+++ 29033 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, there is no analogous case, because --
04-698 +++$+++ 29034 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's what I --
04-698 +++$+++ 29035 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- because --
04-698 +++$+++ 29036 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I do think that, yes.
04-698 +++$+++ 29037 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- because there is no analogous statute.
04-698 +++$+++ 29038 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There isn't?
04-698 +++$+++ 29039 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's no analogous statute. There is no other statute we've been able to find where private citizens are made equal partners with Government in the design and approval of Government actions.
04-698 +++$+++ 29040 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Does this every come up? I mean, the other thing I wondered about this -- it seems to me you have a hearing examiner and a district judge who have actually said what is only a law professor's dream. They say, "Oh, the evidence is precisely and equally in balance." I didn't know that happened in the real world. I -- [Laughter.]
04-698 +++$+++ 29041 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I thought that their -- that judges normally did their job, which is, you look at complicated evidence, and you say, "This side is a little bit better, or that side is a little bit better." Has this come up in -- a lot, where they say, in this area, "Oh, it's exactly" --
04-698 +++$+++ 29042 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-698 +++$+++ 29043 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- "in equipoise"?
04-698 +++$+++ 29044 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I don't -- I don't know how many times the hearing officer has said that. I do think the burden of proof is not -- is not -- or the evidence is not balanced on a razor's edge. I think it is a -- is a broader table than that. But let me explain, if I may, three reasons.
04-698 +++$+++ 29045 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask you, before you get to your three reasons, to go back to your -- something that you said? I asked you, Are you dividing the burden of production and persuasion? And you said no, it's all on one side or the other. But it seems to me your description of this proceeding, you said the school district goes first. So --
04-698 +++$+++ 29046 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this --
04-698 +++$+++ 29047 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the school district did come forward. And is that the usual practice in these administrative hearings -- that the first one to go to defend the plan is the school district, not the parents who are attacking it?
04-698 +++$+++ 29048 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I believe that the typical procedure would be that the -- whichever party has the burden of proof would go first.
04-698 +++$+++ 29049 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you said, in this case --
04-698 +++$+++ 29050 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It --
04-698 +++$+++ 29051 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the school district went first.
04-698 +++$+++ 29052 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. In this particular case, the hearing officer had not yet resolved the burden-of-proof issue at the beginning of the hearing, and --
04-698 +++$+++ 29053 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, now, as a result of the Fourth Circuit's decision, do the parents always go first --
04-698 +++$+++ 29054 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh --
04-698 +++$+++ 29055 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- and not the school district? The school district has a plan that it has put forward. And it seemed to me logical, well, it has a plan, so it should defend it.
04-698 +++$+++ 29056 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the typical rule is, obviously, that whichever party has the burden of proof in that proceeding would go first, but --
04-698 +++$+++ 29057 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, you think the ALJ -- or the administrative hearing officer in this case told the State to go first -- the school district to go first because he thought that maybe they had burden of proof, and would not have asked them to go first if he didn't?
04-698 +++$+++ 29058 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, there was a -- it's unclear why he had them go first. There was some State regulation -- then in effect, no longer in effect -- that suggested that perhaps the State had some initial burden in that case. We're not necessarily asking that the -- that the -- that the State be required to go first. What we are asking is that the State -- excuse me, not the State -- the local school system bear the burden of persuasion. And there are three --
04-698 +++$+++ 29059 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, but you're saying this -- this is an ad hoc thing. There is no general practice about which one goes first.
04-698 +++$+++ 29060 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the general practice would be that whoever has the burden of proof, the burden of persuasion, would also be the one to go first and go last. That's the general practice in procedures. And we believe it also applies here. But we're not -- what I'm -- my point is that we are not wedded -- this Court was to decide that the parents should go first, but the school system had the burden of persuasion, that would be fine with us. In the cases where the burden of persuasion is going to be determinative, both sides are going to have substantial evidence before the hearing officer. The question we think is most important here, if I may, is, Which allocation of the burden of proof best advances the purposes of Congress? There are three reasons, at least, why we believe putting the burden on the school system best advances purposes of the Congress. Number one has to do with the risk of an erroneous decision. This Court, for example, in Santosky, said: What will happen if there is an erroneous decision? It asked that question in the context of the standard of proof. It is important to ask that same question here. If the hearing officer makes a mistake and awards the child services that are not really needed, then the child will receive a somewhat better education than the law requires, and the school --
04-698 +++$+++ 29061 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's only play money, right?
04-698 +++$+++ 29062 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well I think it's only right - this isn't the question, Who's going to pay for it? Because this -- doesn't the parent often go ahead and get the other -- the better program, and then they ask for reimbursement for the -- from the Government?
04-698 +++$+++ 29063 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, not in that case, where the -- my hypothetical was, where the hearing officer has awarded services --
04-698 +++$+++ 29064 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't it true that many of these fights occur after much of the education has already taken place --
04-698 +++$+++ 29065 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, because of --
04-698 +++$+++ 29066 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- and they're fighting about who pays for it?
04-698 +++$+++ 29067 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the wheels of justice grind slowly -- sometimes they do, but they -- the key point here is, look at what happens if the hearing officer denies services the child needs. The child is going to be harmed, and, in the long run, society is going to be harmed, as this Court recognized in Rowley. The harm to the child if the burden is erroneously -- excuse me -- the harm --
04-698 +++$+++ 29068 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's --
04-698 +++$+++ 29069 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to the child --
04-698 +++$+++ 29070 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that's not true if the parents can afford to pay for it, and have, in fact, paid for it. Then the child is the neutral factor in it. Of course, in some cases, what you say would be true, but not in --
04-698 +++$+++ 29071 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, in most cases --
04-698 +++$+++ 29072 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- not in all cases.
04-698 +++$+++ 29073 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- it would be true. These parents were fortunate -- this child was fortunate, that they were able to pay for Brian's services until Montgomery County finally changed its mind and gave him the kind of services he had sought from the beginning, services they gave him once they were given the burden of proof. But most parents are not going to be in that situation. Most parents of children with disabilities are not going to be able to go out and obtain the services they need if the hearing officer does not award --
04-698 +++$+++ 29074 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Hurd, here's --
04-698 +++$+++ 29075 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This is true.
04-698 +++$+++ 29076 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- here's my problem with your assertion that we have to decide it in the way that furthers the purposes of the statute. We said, in other cases -- and correctly, I think -- that no statute pursues its purpose at all costs, that there are limitations upon its purpose. It, of course, wants students who need this special help to get it, but it also does not want students who don't need this special help to get it. And for you to say, "There's no harm done." You know, "If he -- if he's given it when he doesn't need it. What's the problem? He goes to a better school." The problem is that this is not play money. It's coming from somewhere; and, namely, on the citizens who have to pay for it.
04-698 +++$+++ 29077 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, my purpose is not to minimize the monetary interests involved, but it is to focus the Court's attention on the aspect of it that Congress had focused on. Certainly, if we have an erroneous decision either way, there will be some loss. If the loss is on the school system, it will not be unimportant; it will be some money. If the loss is on the child, it will be in the squandering of human potential --
04-698 +++$+++ 29078 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right, that's true. That's -- I understand. I sympathize with that point. I'm worried, however, about the fact that this statute doesn't just cover the initial IEP. It covers a whole range of things, including, for example, you have a hyperactive child. The hyperactive child behaves badly in class. The hyperactive child receives discipline related, say, to how it's placed. Well, the parents might -- properly, perhaps -- think that was very unfair and wrong, and they might challenge that disciplinary mark. There can be thousands of different kinds of issues that come up. And, in all of these issues, is it supposed to be the burden of the school board, for example, to show that the teacher who had the child sit in the back of the class or received a bad discipline mark or something? Does the -- does the school board have to prove that the teacher was right?
04-698 +++$+++ 29079 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, those cases would not arise under the IDEA --
04-698 +++$+++ 29080 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wouldn't it, if it were related to the placement?
04-698 +++$+++ 29081 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, your hypothetical did not change the child's placement.
04-698 +++$+++ 29082 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, no, I say that there are a number of -- what I'm thinking of is a lot of interim decisions that come up that are affecting how the child is placed -- whether in class, whether in that class, whether with a special teacher, whether without a special teacher, whether with somebody during the recess periods, whether not. I mean, they're -- these are very complicated matters, and there can be important overall matters, and there can be what I'd call interstitial matters.
04-698 +++$+++ 29083 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the initial matters you discussed -- sent to the back of the room -- the IDEA is not implicated there. If the school system tries to change the child's placement, then this Court has already said that the school system bears --
04-698 +++$+++ 29084 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What I'm driving at is -- and I think it was well expressed in one of these cases, a New Jersey case, perhaps -- that is it the same burden of proof whether the matter is interstitial or whether it's an initial placement or a change of --
04-698 +++$+++ 29085 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, sir.
04-698 +++$+++ 29086 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- placement? Do we have the same burden of proof always on the school board, no matter what?
04-698 +++$+++ 29087 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I understand your question, Your Honor. We believe the strongest possible case is, initially, where there is no IEP, where this is equal partnership, and the school system should be required to come forward and demonstrate this program is appropriate. If, however, you have a -- an agreed IEP and the parents say, "Well, now we want to change that," then the case for the parents is, frankly, not so strong. It is a different case. And some courts have said, in those cases, the parents have the burden, as the District Court did, actually, in this case, by way of dictum. Other courts have said, no, the school system always have the -- has the burden. The Court need not go so far here as the New Jersey court went in Lascari, and say the school system always has the burden in order to the rule -- rule for the parents in this case and say that, initially, when there is no IEP, only a proposed IEP -- and, Justice Souter, Burlington used that word three times, "IEP proposal," which we think implies that it was not a real IEP -- this -- the Court need not decide the other issue in order to decide that when there is no IEP, only a proposal, and when you have equal parties before the hearing officer, that it makes no sense to allocate the burden on which one filed for the hearing officer first, who asked for the tiebreaker first. That really makes no sense. You have to, instead, we submit, decide the case based on which allocation of the burden in this situation is most in accord with the purposes of the statute. Two purposes, if I may. Protecting the rights of children with disabilities, and the rights of their parents, is what the statute says. Protect them from whom? What did Congress have in mind? Obviously, to protect them, quite frankly, from the school systems, who had this history of discrimination, who are more powerful, if you will, in terms of both information and resources, and who have a financial incentive, as the Deal court recognized, to minimize the needs of the child. Protecting the side that Congress meant to protect means putting the burden on the other side: the school system. Secondly, more fundamentally, the purpose is to ensure the children have an appropriate education. The law doesn't say "promote." It doesn't say "presume." It doesn't say "risk." It says "ensure." In baseball, there's an old umpires' rule that the tie goes to the runner. In order to carry out purposes of this statute, when the evidence is in equipoise, the tie should go to the child. I'd like to reserve the balance of my time for rebuttal.
04-698 +++$+++ 29088 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Garre.
04-698 +++$+++ 29090 +++$+++ FALSE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Stevens, and may it please the Court: Petitioners rejected the educational plan found appropriate by local school officials, enrolled their child in an expensive private school, and then filed a due-process complaint seeking reimbursement of $21,000 in private tuition expenses. The Court of Appeals properly held that petitioners bore the burden of proof in that proceeding, just like --
04-698 +++$+++ 29091 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ This is a case where the parents unilaterally decided to move the child to a private school, and then they sought tuition reimbursement?
04-698 +++$+++ 29092 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Justice --
04-698 +++$+++ 29093 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-698 +++$+++ 29094 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- O'Connor. Petitioners bore the burden of --
04-698 +++$+++ 29095 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ As I understand it --
04-698 +++$+++ 29096 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You don't contend the rule would be different if we were -- if it was all prospective, do you?
04-698 +++$+++ 29097 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Your Honor, we think the rule is the same in all of the various situations that could arise under the statute -- the complaining party, whether it's the parents, as in this case, or the school district, as in many other instances. And, Justice Breyer, you're right, one of the situations that is covered by this statute is where a child with a disability acts out in class, and the school has to take disciplinary action against that child. In that situation, IDEA regulates the actions that the school district can take. And if the parents believe that the school district has -- take a more severe disciplinary action than is required by the statute, school -- the school district, or the parents, could initiate a challenge in that situation. In fact, there are many parts of the statute that we think speak to the question, or at least --
04-698 +++$+++ 29098 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Before we -- you go onto the argument, your answer to Justice O'Connor, if I remember the facts correctly, wasn't quite right. This child was in private school for years, and the parents weren't asking anybody to do anything, because -- and it's only when the private school said, "We have to -- we can no longer put up with your child. Your child has all these problems" -- at that time, the parents then came to the school district and asked for an IEP.
04-698 +++$+++ 29099 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, that's correct. The child was in a private school, at which point in time, the private school suggested that they find -- the parents find another environment for the child suitable for what they determined to be "special needs." The parents contacted the local school district, and, at that point, the school district, in conjunction with the parents, devised an educational plan for the child.
04-698 +++$+++ 29100 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which the parents didn't think was acceptable and, in the interim, placed the child in another private school. But it was not a case that they put the child in a private school first, and then sought reimbursement.
04-698 +++$+++ 29101 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct, Justice Ginsburg, except that the record does show that, during the time that the IEP was being developed, the parents applied for the child to attend a private school and actually accepted an application fee and enrolled the child in that school, and the ALJ in this case found that the parents had made a predetermined decision to send the student to child -- the student --
04-698 +++$+++ 29102 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought --
04-698 +++$+++ 29103 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to private school. But we don't think that the facts of this case bear on the question of who bears the burden of proof in the run of the Mine case. It's --
04-698 +++$+++ 29104 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Garre, you -- or, Mr. Garre, you said, in your earlier statement, that sometimes the school district will be the complaining party. How does that -- how does that come up?
04-698 +++$+++ 29105 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, there are three situations in which the school district can be the complaining party. First, where a parent refuses to subject his child to evaluation for special services under the Act, and the school district disagrees and initiates that action.
04-698 +++$+++ 29106 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now, why would the school district have to take any action? Why wouldn't it just --
04-698 +++$+++ 29107 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, under the statute Congress --
04-698 +++$+++ 29108 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- just say, "The child can't come to class. He's too disruptive," period?
04-698 +++$+++ 29109 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Congress placed on school districts the obligation to identify disabled children within their jurisdiction.
04-698 +++$+++ 29110 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right.
04-698 +++$+++ 29111 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And when they have -- they believe they identified such children, and they request the parents to subject them to the evaluation -- Congress placed on the school districts to at least conduct an evaluation in that situation, and if parents disagree --
04-698 +++$+++ 29112 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-698 +++$+++ 29113 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- school districts can initiate. The second situation is in -- is where children act up in the classroom. The school -- the statute places restrictions on how the school district can discipline a child if the school district determines that the misbehavior is a manifestation of the child's disability. In that situation, if the -- if the school district believes that more severe discipline is warranted than would be allowed under the statute, the school district has to initiate the hearing in order to get an ALJ to allow it to take more severe action. And the third situation is where the school district disagrees with a parent's request for an independent educational evaluation. Parents can request, as part of the developmental process of an educational plan, to have an independent educational evaluation conducted on their child, paid for at public expense. Most of the times, that's conducted without incidence. In some situations, if school districts believe that that expense was not warranted, they could initiate a proceeding. And in all those cases, we acknowledge that -- under the traditional rule, that the complaining party, the party that initiates the action and seeks relief, bears the burden of proof in that proceeding.
04-698 +++$+++ 29114 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Garre, do you have any numbers, overall, how -- of the incidence of the parents going to the administrative hearing first, as opposed to the school district? Isn't it overwhelming that, in these proceedings, the parents are the one -- ones who initiate the hearing?
04-698 +++$+++ 29115 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I don't have those statistics. I would -- I think it's probably true that in most instances it's the parents who are initiating the hearing. That would not have been news to Congress, however. Congress, in the statute -- and this is one of the things that we think is important, bearing on the burden of proof -- placed on parents the obligation to plead their case -- that is, to identify both the problem with the educational plan that they've seen -- and this is in 20 U.S.C. 1450(b)(7) -- as well as the proposed solution that they would -- that they would like to see the Court adopt. Now --
04-698 +++$+++ 29116 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now we go back to the -- an answer you gave before, when we were going through what, in fact, happened, the suggestion that maybe the parents were just trying to get the private-school tuition reimbursed, the -- there was a finding, wasn't there, in the District Court, in the -- this is in the Petitioner's appendix, at 46 and 47 -- the district court said, "The parents in no way prevented the IEP from being formulated or otherwise failed, in good faith, to consider it."
04-698 +++$+++ 29117 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- Your Honor, that's correct. I think that the District Court also acknowledged, though, that the parents probably were interested in sending their child to private school. I think, either way, we're not suggesting that the record in this case requires the Court to take one result or another on the fundamental question of who bears the burden of proof. We think that the complaining party bears the burden of proof. That's the rule --
04-698 +++$+++ 29118 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if I take -- if I accept your view of that, that would be a Federal rule written into the statute. And that would mean that, even if the Department of Education came to a different conclusion, or even if we have a bunch of States that come to a different conclusion, or even if it's in Minnesota, they want to have a rule that "sometimes it's one way, sometimes the other way," we couldn't do that. But if I were a Member of Congress, and never thought about the issue, which I think this void in the statute suggests, I might think it would work out better if we left it up to each State to do it whatever way they wanted here, if we left it up to the Department of Education to promulgate whatever rules they wanted. Now, couldn't we hold that?
04-698 +++$+++ 29119 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, and, in fact, we've suggested that. In fact --
04-698 +++$+++ 29120 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you haven't suggested leaving it up to each State, because you're suggesting a uniform rule. So, what -- how would you have it?
04-698 +++$+++ 29121 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, to be clear, we think that this -- that the statute establishes a Federal floor. It is spending clause -- a federal floor -- it is -- or a default rule that --
04-698 +++$+++ 29122 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, it's just --
04-698 +++$+++ 29123 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- unless --
04-698 +++$+++ 29124 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- a default rule.
04-698 +++$+++ 29125 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly. That the --
04-698 +++$+++ 29126 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. If it's just a default rule, that's a big improvement, because any State can do it any way it wants.
04-698 +++$+++ 29127 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that --
04-698 +++$+++ 29128 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But then, why not, here, send it back and say that the ALJ tried to answer the wrong question? He tried to answer the question of what was the Federal law, but what he really should have done was ask about what's the State law. And if he has a hard time figuring it out, perhaps he should look at that evidence harder and see. Maybe --
04-698 +++$+++ 29129 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, is there any doubt, here, that there's no State law?
04-698 +++$+++ 29130 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, and I believe you just heard Mr. Hurd acknowledge that there is no statute or regulation on this.
04-698 +++$+++ 29131 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but I've never heard of a State without law. There is no --
04-698 +++$+++ 29132 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-698 +++$+++ 29133 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- black hole in the law --
04-698 +++$+++ 29134 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ On the burden of proof in IEP cases --
04-698 +++$+++ 29135 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
04-698 +++$+++ 29136 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- I should have explained.
04-698 +++$+++ 29137 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And, Your Honor, the Maryland case law adopts a traditional rule for administrative proceedings. We cite the case, in page 18 of the red brief. Importantly, though, what petitioners --
04-698 +++$+++ 29138 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ These cases are appealed to Federal courts normally, aren't they?
04-698 +++$+++ 29139 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ These cases -- the Congress gave them the right to bring a civil action in Federal court.
04-698 +++$+++ 29140 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In Federal courts. And most of these cases are in Federal courts. And you're -- you want to condemn Federal courts to figuring out what the State burden of proof is?
04-698 +++$+++ 29141 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think -- we analogize it to the question of the substantive amount of benefits to which parents are entitled under the Act. We think that this spending-clause legislation would allow a State to adopt a higher standard than the standard that this Court established in Rowley for free and appropriate public education, and that that would be the standard that would apply in a proceeding. And so, too, we think, with the question of the burden of proof. If States wanted to voluntarily assume the burden of proof for their own school districts in these proceedings, which this Court has characterized as a substantive rule of law -- the question of who bears the burden of proof -- we think that States could do so, and that that would be the rule that applies. We don't quarrel with that.
04-698 +++$+++ 29142 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's not hypothetical. Isn't it -- it isn't hypothetical. States -- isn't it true that some States have said that, in these hearings, the school district will have the burden of proof?
04-698 +++$+++ 29143 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. We believe -- I believe eight States have said that. Three States -- at least three States have said that the burden of proof is on the parents in these proceedings. Some States have taken different views and said if -- I believe it's --
04-698 +++$+++ 29144 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well --
04-698 +++$+++ 29145 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Minnesota has said that --
04-698 +++$+++ 29146 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- to the -- to the extent that we're concerned about unnecessarily increasing costs on school districts, and burdens on school districts, why shouldn't we have a uniform Federal rule? In other words, if we agree with your position that ordinary allocations puts this on the complainant, we have to conserve resources, and so forth, why should we allow States to have a different rule, when we're dealing with the administration of a Federal program?
04-698 +++$+++ 29147 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, because of the spending-clause nature of the legislation. That's what we think, that --
04-698 +++$+++ 29148 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, would you --
04-698 +++$+++ 29149 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- this establishes a Federal floor that States can go beyond if they want to assume more costs under the Act.
04-698 +++$+++ 29150 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, you have a statute that -- you know, it's in -- it's in great detail -- on administrative procedures. It obviously -- you know, decision of hearing officer, administrative procedures, disclosure, evaluations, and recommendations. And you think the Federal Government goes into all this detail and doesn't care who has the burden of proof? That seems, to me, most unlikely.
04-698 +++$+++ 29151 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Scalia, we agree, in the sense that we think that the statute establishes at least a default rule. And, just to be clear, if the Court holds that Federal law establishes the traditional rule, then, obviously, we would be very happy with that decision. What we -- what we reject to strenuously is petitioner's position that Federal law imposes an unstated burden on the school districts in all proceedings initiated under the Act.
04-698 +++$+++ 29152 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I --
04-698 +++$+++ 29153 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would be --
04-698 +++$+++ 29154 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- ask this question? You've described three situations in which you have the burden of at least proceeding, and I guess persuasion, too -- and, of course, there's a difference between the two. And I was just trying to think, if I were a hearing officer, and I thought, well, the issue in this case is whether the parents' objections to the IEP are valid, I think the first thing I'd want to know is, What is the IEP, and who's the best person to tell me about it? And wouldn't the county be in the best position to explain what has been done and, sort of, get the -- get the hearing started, and so forth?
04-698 +++$+++ 29155 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Stevens, Congress has answered that problem, in the sense that it requires, in response to a complaint, the school district to submit the proposed -- the IEP, the educational plan, it's adopted, as well as the other considerations -- the other options it considered and why it didn't accept those other options. So, that evidence -- and I think we're talking about the burden of production --
04-698 +++$+++ 29156 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right. I --
04-698 +++$+++ 29157 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- not the --
04-698 +++$+++ 29158 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- understand.
04-698 +++$+++ 29159 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- burden persuasion there -- that evidence already is required to be exchanged and disclosed. Here --
04-698 +++$+++ 29160 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But then, at the hearing, who -- who introduces the first exhibit or the first witness?
04-698 +++$+++ 29161 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the way it's done in the States right now is, where, in the jurisdictions where school districts bear the burden of persuasion, they are required to go first. And that increases the costs and complexity of these trials for school districts, because the -- before the parents have put on their evidence as to why they think an educational plan is inappropriate or is -- in this case, why they think the school district hasn't properly characterized their child's disability, the school district has to go forward and present its case, which is a more complex -- it's -- there's more guesswork involved --
04-698 +++$+++ 29162 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask this? Are there any jurisdictions in which the burden of proceeding is different from the burden of persuasion?
04-698 +++$+++ 29163 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know the answer to that question, Justice Stevens. I think it would be a very unusual rule.
04-698 +++$+++ 29164 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I know, analytically, it's a different issue. But it would seem to me the normal rule would be whoever goes first has the burden of the persuasion.
04-698 +++$+++ 29165 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's absolutely correct, and that's certainly the way that we think it would -- it would, more preferably, operate under the statute. But the question before the Court in this case is, Who bears the burden of persuasion? That's a very important question under the Act. It's not just, with respect, an academic question about the number of cases in with -- in which the evidence is mathematically in equipoise. It is going not have a much broader impact on the implementation of this statute, because it's going to be decisive, or at least potentially decisive, in cases like this, where you've got a battle of the experts. I think --
04-698 +++$+++ 29166 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why? Why should it be? I mean, that's very interesting to me. Why shouldn't the law be such that particularly -- you have evidence on both sides and a neutral decision-maker who sits there -- that it encourages that decision-maker to decide. It's one thing if the record's blank. But not where they have a lot of experts. Decide. Don't retreat to something like announcing, "Oh, it's in equipoise."
04-698 +++$+++ 29167 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- we would agree with you, Justice Breyer, but, in practice, many of these cases, the dispute is over the provision of experimental therapies for children with disabilities, particularly children with autism, where medically and educationally --
04-698 +++$+++ 29168 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right, but then to do that is not really to look to the interests of the child or the board. I mean, it is to allow a sort of doctrine from left field, nothing to do with the merits, to decide the case.
04-698 +++$+++ 29169 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. We think that what it is to do is to give effect to the traditional presumption of regularity, which is, ultimately -- if you do have a tie, whose judgment ought to be given effect? And under the statute, where Congress recognized that State and local governments would retain the primary authority over educational decisions -- and in the Rowley case, where this Court reaffirmed that -- we think that, combined with the traditional presumption of regularity -- which is that the actions and decisions of public officials are presumed to be taken in good faith, and presumed to be correct -- those factors counsel strongly in favor of the traditional rule here. Petitioners --
04-698 +++$+++ 29170 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Garre, if you -- if you had a situation, say, under Title 7 -- and you pointed out in your brief that, in most benefit cases, most -- the person -- whether it's Social Security -- the person who is making the claim has the burden of proof. But there is something different about this setup, because the statute does obligate the school district to come up with a plan. And so, I was thinking, if you have a Title 7 case, and the plaintiff prevails on the merits, and then there's a question of remedy, and the employer said, "I propose this -- these changes to remedy the violation," wouldn't the employer in that case have the burden of establishing the adequacy of the plan that it has come up with to remedy the problem?
04-698 +++$+++ 29171 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think if you're talking about an affirmative defense or something beyond the threshold question of whether there has been discrimination, or as in a Social Security Act case question of whether an eligible person has been denied the benefits --
04-698 +++$+++ 29172 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, you made --
04-698 +++$+++ 29173 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to which he's entitled --
04-698 +++$+++ 29174 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that determination has been made --
04-698 +++$+++ 29175 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
04-698 +++$+++ 29176 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that the -- that there has been a violation. And then the question is, What remedy? And the employer proposes a remedy. Wouldn't the employer have the burden of showing the adequacy of the remedy that the employer --
04-698 +++$+++ 29177 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the plaintiff would still bear the burden of showing that he is -- he or she has been discriminated against --
04-698 +++$+++ 29178 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, there's no violation here. I mean, this is a totally different --
04-698 +++$+++ 29179 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-698 +++$+++ 29180 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- situation. I mean --
04-698 +++$+++ 29181 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that's my threshold --
04-698 +++$+++ 29182 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- there hasn't been finding of any violation by the school district. The school district --
04-698 +++$+++ 29183 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's my threshold point --
04-698 +++$+++ 29184 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But I -- but I'm interested in --
04-698 +++$+++ 29185 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that that's --
04-698 +++$+++ 29186 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- I'm interested in Justice Ginsburg's question. Let's assume you show a violation. Is there -- is there any law on who has the burden of showing that the remedy is sufficient?
04-698 +++$+++ 29187 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think when we talk about the burden of proof, we're talking about the essential elements of the claim, whether there's been a violation. So I think --
04-698 +++$+++ 29188 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But when I ask --
04-698 +++$+++ 29189 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- so I think we're asking --
04-698 +++$+++ 29190 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You're asking about the --
04-698 +++$+++ 29191 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- a different question.
04-698 +++$+++ 29192 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- about the -- wait a minute. Let's say that the -- we find that there's a violation.
04-698 +++$+++ 29193 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't -- in that situation, there may be -- I mean, in the same way that, in the sentencing, in the criminal context, other considerations come into play, it doesn't resolve it here. Placing the burden of proof on school districts in these proceedings would erode the trust and confidence that Congress placed in the judgments of State and local educational officials. It would create a demoralizing and destabilizing educational regime in which the judgments --
04-698 +++$+++ 29194 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Of course, the background --
04-698 +++$+++ 29195 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of --
04-698 +++$+++ 29196 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- of the Act is, Congress was very dissatisfied with most of the judgments being made by local officials --
04-698 +++$+++ 29197 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-698 +++$+++ 29198 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- in this whole area.
04-698 +++$+++ 29199 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Your Honor, Congress found that State and local governments would retain the primary responsibility for making educational --
04-698 +++$+++ 29200 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you say this is --
04-698 +++$+++ 29201 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- decisions under the Act.
04-698 +++$+++ 29202 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- okay. You say all these horrible consequences are perfectly okay, so long as the States do it.
04-698 +++$+++ 29203 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-698 +++$+++ 29204 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I mean, if the consequences are that horrible, how can you allow the States to put the burden on the other side?
04-698 +++$+++ 29205 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our position is that -- is that the Federal law creates a floor, Justice Scalia, that Congress established the rules --
04-698 +++$+++ 29206 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I understand that.
04-698 +++$+++ 29207 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that it thought was appropriate, and then States --
04-698 +++$+++ 29208 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But your -- your parade of horribles just never --
04-698 +++$+++ 29209 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-698 +++$+++ 29210 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- never gets started, once you -- once you acknowledge that the States can blow the whistle to start the parade.
04-698 +++$+++ 29211 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In that situation, though, States are voluntarily assuming the burden on their own school districts.
04-698 +++$+++ 29212 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there any --
04-698 +++$+++ 29213 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Here --
04-698 +++$+++ 29214 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now we have a number of States that do put the burden on the school district. Is there any indication that the cost is higher in those States than in States that put the burden on the parents?
04-698 +++$+++ 29215 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that the cost of the hearings -- there are not statistics on that, precisely, but the cost of hearings are going to be greater, because school districts -- Thank you, Your Honor.
04-698 +++$+++ 29216 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Salmons.
04-698 +++$+++ 29218 +++$+++ FALSE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Thank you, Justice Stevens, and may it please the Court: Several features of the IDEA confirm that Congress intended the traditional allocation of the burden of proof to apply to the administrative hearings under the Act, and the most important of these --
04-698 +++$+++ 29219 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Absent different disposition by the States? What's the Government's position? Can the States change this burden, just the background, you know -- unless you -- unless you think it's okay to, you know --
04-698 +++$+++ 29220 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Your Honor, the --
04-698 +++$+++ 29221 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- have the heavens fall -- we don't want the heavens to fall.
04-698 +++$+++ 29222 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Your Honor, the Government has always understood -- and this Court has understood -- that this is spending-clause legislation, and that the requirements of the Act establish a floor, and that that's true with regard with the substantive provisions of the Act, as well as the procedural ones. And let me give you one example. I will concede that this may seem somewhat anomalous, but this an unusual statute. In Rowley, for example, this Court construed the meaning of the term "a free, appropriate public education," and it determined -- in fact, it rejected a construction of that term that would have required maximizing the educational benefit to the child. There are States that have adopted that high substantive requirement for their schools. And when someone brings an action, either at a due-process hearing or in Federal or State court, a separate civil action under statute, the courts apply that higher State standard. We think the same would be true with regard to a State's decision to adopt more restrictive -- or more protective, excuse me, procedural provisions for the parents with children with disabilities. It is left up to the States. The Federal law --
04-698 +++$+++ 29223 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ In other words --
04-698 +++$+++ 29224 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- just establishes a floor.
04-698 +++$+++ 29225 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- your answer is yes, the States may adopt a burden-of-proof -- here -- standard?
04-698 +++$+++ 29226 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ States may, and States have. What we think is --
04-698 +++$+++ 29227 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ And do you have --
04-698 +++$+++ 29228 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- improper --
04-698 +++$+++ 29229 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ None +++$+++ -- do you have any information in -- to the question I asked earlier -- in the States that have said, "School district, you bear the burden," do we know whether there's more litigation? Do we know whether there has been a notable increase in the costs in those States that have placed the burden on the school districts?
04-698 +++$+++ 29230 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Your Honor, I would say that we don't have any evidence that is as strong as we would like on that. What we do have, and what I would refer the Court to, is the 2003 GAO report on the way in which the -- these provisions have been implemented. That is -- it's cited in both respondent's and petitioner's brief, and it was relied on by Congress in the 2004 amendments. And what it -- what it demonstrates is that 80 percent -- nearly 80 percent of all due-process hearings nationwide have occurred in just six jurisdictions, five States and the District of Columbia, and that -- and that, in those States -- it happens to be the case at all, but Maryland, which is one of those states -- have clear rules that put the burden of proof on the school districts, and that the costs --
04-698 +++$+++ 29231 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ This --
04-698 +++$+++ 29232 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ I'm sorry.
04-698 +++$+++ 29233 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ These other cases that you refer to, where -- that involve spending legislation, where the States go beyond what is minimally required -- I suspect that they are cases where it really is an imposition on the States, and they accept it. Here, the imposition is not on the States, it's on the local school districts. And very often, the interests of the local school district is quite different from the interests of the people, you know, down-State, in the State capital. I'm -- I am loath to think that just because a State supreme court says that every school district in the State has to bear the burden of proof, that Congress intended that to be the case. I think it's a different -- a different situation, where the spending is money that's coming out of the -- ultimately, out of the pocket of the school district.
04-698 +++$+++ 29234 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Your Honor, it may very well be that you would want something more than just a court decision. And I --
04-698 +++$+++ 29235 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Do we have to --
04-698 +++$+++ 29236 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- and the States that have done it --
04-698 +++$+++ 29237 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- decide that here?
04-698 +++$+++ 29238 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ No, I don't think --
04-698 +++$+++ 29239 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Maryland --
04-698 +++$+++ 29240 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- we do, Your Honor.
04-698 +++$+++ 29241 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- doesn't have --
04-698 +++$+++ 29242 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Maryland --
04-698 +++$+++ 29243 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- such a rule.
04-698 +++$+++ 29244 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- Maryland does not. And I think, in fact, the only thing -- the only question that's truly presented in this case is whether the Federal statute mandates the unusual burden -- shift of placing the burden on the schools in all cases. And we think that clearly wasn't what Congress intended. And let me point to the provision of the statute we think is the most relevant, and that is the requirement that the parents -- or the complaining party file a complaint to initiate the due-process hearing. And that traditional pleading regime requires that the -- in this context, the parents come forward and identify, with specificity and with supporting facts, the problem with the school's educational program and how they would propose to solve that problem. And, in 2004, Congress went even further and mandated that parents cannot even obtain a due-process hearing until they've first complied with this due-process notice requirement, and that the contents of the parents' complaint will strictly define the subjects that can be addressed at the hearing. And we think that is strong evidence that Congress intended the traditional allocation of the burden of proof.
04-698 +++$+++ 29245 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ And may I be sure I didn't misunderstand something you said earlier? Did you say that in most jurisdictions the -- by local option, the States have elected to adopt your adversary's --
04-698 +++$+++ 29246 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ No --
04-698 +++$+++ 29247 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- position?
04-698 +++$+++ 29248 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- no, Your Honor, I did not. What I indicated is that one of the unusual aspects of these due-process hearings is that they occur very infrequently, only about 5 for every 10,000 children receiving educational benefits under the Act nationwide. In certain jurisdictions, there is a very high incidence of these hearings. And Congress, in 2004, was clearly concerned about the costs that those hearings were imposing, and were diverting funds away from the real purposes of the Act. Now, getting back to the statute, we think --
04-698 +++$+++ 29249 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ I'm not sure you answered my question. Did you not tell us that in the States where there -- the largest volume of these hearings -- in most of those States the burden is on the school board?
04-698 +++$+++ 29250 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ That's correct, Your Honor. What I was saying is that I can't tell you that more States than not have adopted one rule --
04-698 +++$+++ 29251 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ No, I --
04-698 +++$+++ 29252 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- or the other.
04-698 +++$+++ 29253 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Not the number of States.
04-698 +++$+++ 29254 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ But most --
04-698 +++$+++ 29255 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Number of hearings.
04-698 +++$+++ 29256 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- of the due-process hearings that occur in --
04-698 +++$+++ 29257 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Yes.
04-698 +++$+++ 29258 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- in the country --
04-698 +++$+++ 29259 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Yes.
04-698 +++$+++ 29260 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- occur in jurisdictions --
04-698 +++$+++ 29261 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ I think --
04-698 +++$+++ 29262 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- where, either by court or by rule the burden has been placed --
04-698 +++$+++ 29263 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ And this was -- I wanted to point -- was that mostly -- in those jurisdictions, was it by court or by rule?
04-698 +++$+++ 29264 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Your Honor, I don't have that information. Most, I think, of the jurisdictions were -- most of the jurisdictions have the burden on the schools, because that's what the courts -- the Federal courts have construed the Federal statute to require. What -- the reason I have a difficult time answering that is because the amount of due process hearings varies so widely from one jurisdiction to another.
04-698 +++$+++ 29265 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Right.
04-698 +++$+++ 29266 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ And part of that is because of the rules and the ways in which it's been adopted.
04-698 +++$+++ 29267 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ See, this is really a unique statute in so many ways. We've learned, over the years, that discrimination is being treated like everybody else in this -- in this statute, unusual discrimination. And I'm just wondering, it's -- I find it surprising and significant that those who have been free to pick the right rule have picked the rule your opponent --
04-698 +++$+++ 29268 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Well, no -- Your Honor, there are several States that have clearly placed the rule -- by rule, on the -- on the -- on the person initiating --
04-698 +++$+++ 29269 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Right.
04-698 +++$+++ 29270 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- the hearing. And, in fact, I would say most States probably have a sort of State APA --
04-698 +++$+++ 29271 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ And the States that have --
04-698 +++$+++ 29272 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- very similar to the Federal APA.
04-698 +++$+++ 29273 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- the States where most of the hearings have taken place and have taken the opposite view, has --
04-698 +++$+++ 29274 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Well --
04-698 +++$+++ 29275 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- that been true for a number --
04-698 +++$+++ 29276 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ It --
04-698 +++$+++ 29277 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- of years?
04-698 +++$+++ 29278 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ There may be a cause-and-effect issue there, Your Honor. It may be the case that the types -- that by encouraging the type of litigation under the Act by switching the burden of proof has resulted in more cases being brought. The interesting fact --
04-698 +++$+++ 29279 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ I see what you mean.
04-698 +++$+++ 29280 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- from the 2004 amendments is that Congress sought to reduce the amount of litigation under the Act by, for example, allowing --
04-698 +++$+++ 29281 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ But those States --
04-698 +++$+++ 29282 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- for the first time --
04-698 +++$+++ 29283 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Apparently that's -- this has been -- this is not really a brand-new statute. We're going back to the '70s --
04-698 +++$+++ 29284 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ That's correct.
04-698 +++$+++ 29285 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ -- with this statute. And is it true that for most of that period that's been the rule, where most of litigation has taken place --
04-698 +++$+++ 29286 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ I -- Your Honor, I believe it's the -- I can't answer that. I think it's -- it's most -- it's more recent than that. And I think the explosion of litigation under the Act is more recent than that.
04-698 +++$+++ 29287 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Right.
04-698 +++$+++ 29288 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ And Congress has been very concerned about that. Now, by requiring that the parent's due-process complaint define the contours of the hearing, we think Congress has signaled where the burden of proof should be. And, in addition to that, it seems -- it seems to us that it has addressed the policy and fairness concerns the petitioners rely on so much. As this Court recognized in Rowley, it's through the procedural protections of the Act that Congress sought to ensure that parents had sufficient information and resources to defend the interests of their child. And we think, by place -- this complaint notice requirement represents a considered judgment by Congress that those procedural protections will have done their jobs and that parents will be in a strong enough position to adequately defend the interests of their child in any hearing. And that's certainly true if you would compare the position of the parents under this Act with benefits claimants and civil rights plaintiffs in any number of other Federal statutes. If Your Honors have no more questions, thank you.
04-698 +++$+++ 29289 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Mr. Hurd, you have about three minutes left.
04-698 +++$+++ 29291 +++$+++ FALSE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. Let me begin by focusing on the costs of placing the burden on the school system. Five years ago, the United States said, when it was then, in this case, on the side of the parents, that placing the burden on the school district, quote, "should not substantially increase the workload for the school," end quote, page 12 of its brief in 2000. The National School Board Association figures show that the total costs of mediation, due-process hearings and litigation works out to about $22 per head for every child in special education. That's not a lot of money to devote to the enforcement of civil rights law.
04-698 +++$+++ 29292 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ For each hearing or -- for each hearing or just --
04-698 +++$+++ 29293 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Total, Your Honor. The total figure, nationwide, is 146.5 million. If you divide that number by the 6.7 children in special ed --
04-698 +++$+++ 29294 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh.
04-698 +++$+++ 29295 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- it's about --
04-698 +++$+++ 29296 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh.
04-698 +++$+++ 29297 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- $22 a head. And that --
04-698 +++$+++ 29298 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I think it would be more realistic to divide it by the number of hearings, rather than by the number of heads.
04-698 +++$+++ 29299 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, the total -- the total figure is 146.5 million. It is a drop in the bucket compared to the 11.4 billion that Congress appropriates. Moreover, Your Honor --
04-698 +++$+++ 29300 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you know what the --
04-698 +++$+++ 29301 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- there's no indication --
04-698 +++$+++ 29302 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- do you know what the figure is per hearing?
04-698 +++$+++ 29303 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Per hearing --
04-698 +++$+++ 29304 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-698 +++$+++ 29305 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Your Honor, is going to vary. But there's no indication --
04-698 +++$+++ 29306 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, no. You divide the number of hearings by the figure you've just mentioned, and that's the result. Have you -- have you done --
04-698 +++$+++ 29307 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are about 3,000 --
04-698 +++$+++ 29308 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the arithmetic?
04-698 +++$+++ 29309 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- there are about 3,000 --
04-698 +++$+++ 29310 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Three- --
04-698 +++$+++ 29311 +++$+++ TRUE +++$+++ MR. HURD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- hearings, but that $146 million is not just the hearings; it also includes mediation, it includes litigation. And there's no basis to conclude that putting the burden on the parents is going to decrease, rather than increase, hearings. If you let the school systems slide by without being held accountable, they are likely to be less thorough in preparing their IEPs, as they were in this case. And when they're less thorough, there will be more understatement, more disputes, and less consensus. May I also point out, in response to Justice Breyer's point, if there is to be no Federal law on this question, if it is purely State law -- then it ought to be remanded back to the Maryland district court to ascertain what Maryland law is on this point. And, Justice O'Connor, while there is no statute or regulation on point, there are certainly background principles of law that Maryland has, just as we've been arguing here at the Federal level, that would dictate for Maryland where that burden of proof should lie. Now, opposing counsel, the Government, has pointed out that there are these pleading requirements. But these are not traditional pleading requirements, where one side makes allegations and the other side goes, "admit, admit, deny, deny." If you look on page 12 of the addendum, you see the portion of the statute that requires the kind of response the Government must make. It's not admit/deny. It is to give, essentially, a detailed explanation for its position, just as the parents have given a detailed explanation for their position. And, between those two positions, you can tell who should have the burden of proof. I see my time is up. Thank the Court.
04-70 +++$+++ 29316 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We will now hear argument in two different cases: Exxon Mobil against Allapattah and Ortega against Star-Kist Foods. Mr. Phillips.
04-70 +++$+++ 29318 +++$+++ FALSE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens, and may it please the Court: This Court 32 years ago in Zahn v. International Paper affirmed that a class action could not proceed under 28 U.S.C., section 1332, the diversity statute, if it was clear that some of the unnamed members of that class do not satisfy the amount-in-controversy requirement. The question in this case is whether Congress in 1990 overturned this Court's ruling in Zahn and its interpretation of section 1332 not by amending section 1332 but, instead, by enacting a supplemental jurisdiction statute, section 1367. The answer to that question, Your Honors, is no. Plaintiffs in the lower courts that have felt constrained to conclude that the language of section 1367 requires the conclusion that Zahn and, candidly, also this Court's decision in Strawbridge were overruled by 1367 do so by gliding past the express language in 1367(a) that is the primary basis upon which our argument stands. In the appendix 246a to the petition, there's -- the central language is in (a). It says, in any civil action, of which the district courts have original jurisdiction. That language by its terms and -- clearly indicates that Congress did not mean to make any adjustments in the background law that exists that defined diversity jurisdiction or Federal court jurisdiction, Federal question jurisdiction as a condition to going forward. So what the Congress says is, look at the law as it exists in 1990, as it's been interpreted by this Court, and then determine whether or not there's Federal jurisdiction, either for diversity or Federal question, and if there is, then you proceed forth from that point. And what we know is that there are two situations that will not satisfy original jurisdiction under those circumstances. The first one is in the Zahn situation. Where you have both satisfying and unsatisfying plaintiffs in the unnamed -- who are in the unnamed members of the class, this Court said you cannot proceed forth under the diversity jurisdiction. The second one is the classic sort of joinder situation, and what the Court held in Strawbridge is that simply because you have a plaintiff who satisfies the amount-in-controversy requirement and satisfies the complete diversity requirement does not mean that you're allowed to join under rule 20 an additional plaintiff who does not satisfy both of those requirements. And if you bring someone in under those circumstances, that defeats jurisdiction at the beginning before you ever took to trying to decide what the scope of section 1367(a) and (b) mean from that point forward. So then the question is, if that's the correct interpretation of 1367(a)'s predicate language, then what work does 1367(a) and 1367(b) do, and does our interpretation do any violence to the structure of the statute? And the answer to that is clearly no. Here we start by looking at what was Congress'clear intent, manifested primarily in the last language of 1367(a), where it says supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. Here --
04-70 +++$+++ 29319 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Phillips, before you proceed to going on to (b), the -- you have set up a dichotomy between a Federal question case where, as long as you have a Federal question claim in the case, you qualify within those words, of which the district courts have original jurisdiction. But you say that in a diversity case, that's not so if you have people not of the same citizenship -- of the same citizenship on both sides of the party line, so that you have to have a totally qualifying action on the diversity side to come within -- to -- to be within 1367(a). But we have had at least two cases where the starting lineup did not satisfy the complete diversity rule. One was Caterpillar and the other was Newman-Green, and the Court said, yes, on the day one there wasn't complete diversity, but that's curable later on, in the one case before the case was tried, in the other in the court of appeals. So don't at least those two cases suggest that you can have a diversity case legitimately in the Federal court even though at the outset you don't have -- fill all the requirements?
04-70 +++$+++ 29320 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I don't think that's the right conclusion to draw from those cases, Justice Ginsburg, because what happened is by the time that -- those cases got to this Court, the jurisdictional problems had been solved and the Court was faced with a question -- with what I perceive to be purely a remedial question, is what do you do in terms of trying to put the omelette back into the egg at that point when the litigation has gone forward. And the Court, as a matter of judicial efficiency, decided essentially to ignore the jurisdictional problem. Here, by contrast, this jurisdictional problem existed on day one, and the complaint was filed --
04-70 +++$+++ 29321 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought the Court said that --
04-70 +++$+++ 29322 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and continues --
04-70 +++$+++ 29323 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought the Court didn't say they were ignoring it. I thought they said it was curable.
04-70 +++$+++ 29324 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it -- it's curable in the sense that you can eventually excise out portions of the case, but what you cannot do is -- is allow the case to go -- it remains still jurisdictionally barred to proceed forth with parties who are not properly before the court. That's -- that's what this Court said specifically in -- in Zahn itself. It said the problem is that you cannot simply go forward with the Federal claim and with the State claims in that -- in that format. You surely can excise portions of them, but then you start over again. Once you excise them, that's a new complaint. It's a new case. That's the fundamental difference.
04-70 +++$+++ 29325 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They didn't start over in Caterpillar.
04-70 +++$+++ 29326 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry.
04-70 +++$+++ 29327 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The Caterpillar didn't start over and Newman-Green wasn't detected till appeal, but the appeals court didn't say start over.
04-70 +++$+++ 29328 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I understand that the Court's ultimate remedy in both of those cases was not to do a do over, but you also have to remember -- I mean, I think there are two questions here. One is do you ignore the jurisdictional problem. And what I'm proposing to you is this Court has never ignored the jurisdictional problem. It always solves the jurisdictional problem somehow, whether it dismisses the case, as it did in -- in Grupo Dataflux, whether it dismisses the case, as it -- as it proposed would have to happen in Zahn if they didn't excise one of the parties, or whether it makes an adjustment. The Court always takes account of the jurisdictional problem and finds a method of fixing it. So that's the --
04-70 +++$+++ 29329 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But why can't it make an adjustment in this case, Mr. Phillips.
04-70 +++$+++ 29330 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, Justice Stevens.
04-70 +++$+++ 29331 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why can't it make an adjustment in this case?
04-70 +++$+++ 29332 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- well, the -- and the question is what adjustment should it make. And the -- and -- and our argument is at a minimum you have to dismiss all of the class claims.
04-70 +++$+++ 29333 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But why is that the minimum? Wouldn't the minimum be just to dismiss those parties who don't have the aggregate -- the necessary jurisdictional amount?
04-70 +++$+++ 29334 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that takes you back to what the district court ruled in Zahn and -- and, in effect, what this Court affirmed in Zahn, which is that there's a fundamental difference between sort of finding a single, individual plaintiff and saying, you know, this person, if you could just excise that claim, drop it under rule -- that person under rule 21, that fixes it. There's a fundamental difference. I mean, the question here is what's the civil action because there are res judicata, collateral estoppel --
04-70 +++$+++ 29335 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but you do have cases where a complaint is filed seeking to be a class action and then the district judge does not certify the class and the case, nevertheless, goes forward. Now, why couldn't you do that here?
04-70 +++$+++ 29336 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that would -- one of the alternatives on the table -- I think it is appropriate -- is for the Court to excise the class action allegations --
04-70 +++$+++ 29337 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
04-70 +++$+++ 29338 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and dismiss the entirety of the class and proceed forth solely in the name of the four individual plaintiffs.
04-70 +++$+++ 29339 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, maybe. Why isn't it permissible just to dismiss those parties who don't have the requisite jurisdictional amount? That's what I -- where I stumble with this.
04-70 +++$+++ 29340 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the Court has the authority to do that. I think the practical implications of that are overwhelming and should be -- and should be rejected for that reason because in order to be able to have res judicata/collateral estoppel effects, you have to know what the civil action is. And with a class of unnamed members, who are, in many instances, unknowable in -- in some respects, we don't know what the res judicata or collateral estoppel effects are if your solution is to try to excise those who do not satisfy the amount-in-controversy requirement.
04-70 +++$+++ 29341 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't -- I don't follow that entirely, Mr. Phillips, because the -- Exxon lost at -- at this trial, and preclusion doctrines -- that means that Exxon had one full and fair opportunity to defend. So Exxon is going to be bound by that -- by the determination. Somebody who was not in the litigation and might say, well, I want more, say, somebody who had opted out --
04-70 +++$+++ 29342 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In other words, you'd have the same issue of preclusion problems if you had done the case from the beginning the way you contend it ought to have been done.
04-70 +++$+++ 29343 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I think the case should never have been allowed to go forward except with the named plaintiffs. Okay.
04-70 +++$+++ 29344 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I mean, Justice Ginsburg's point is you -- you -- even with a -- a few properly named defendants, you're going to have the same issue preclusion problem.
04-70 +++$+++ 29345 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, not -- but -- but it's a much more complicated issue preclusion problem because the question is, is there jurisdiction? This is a judgment that's been entered without jurisdiction. The court doesn't have proper jurisdiction here --
04-70 +++$+++ 29346 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if it's under the language of section 1367, I think it makes more sense to say the court has original jurisdiction over the action, but lacks original jurisdiction over the defective claims. I mean, that meets what 1367 seems to say on its face.
04-70 +++$+++ 29347 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I would --
04-70 +++$+++ 29348 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I hope you will address the fact that Congress very recently has enacted legislation that makes all this in the future at least non-objectionable.
04-70 +++$+++ 29349 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it doesn't eliminate it completely, Justice O'Connor. The Class Action Fairness Act only applies to claims where there are plaintiffs who exceed the number of 100, plaintiffs over 100, and -- and the $5 million amount-in-controversy --
04-70 +++$+++ 29350 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right, and it's not retroactive.
04-70 +++$+++ 29351 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it's not retroactive. But even prospectively, there will be situations where this precise issue will arise in the future. So there is reason for the Court to go ahead and resolve this question that has so badly divided the courts. But, Justice O'Connor, to answer your first question, I would have -- I would have thought the conclusion was exactly the opposite, that what -- what -- the statute says you don't have jurisdiction over civil actions over which you didn't have jurisdiction prior to 1990, but you do have jurisdiction over claims that then can be appended to those for which you have jurisdiction in 1990. So I would have thought the more sensible way, at least from my perspective, to read this case -- to read this statute is to say, is this a claim that could have been brought in 1990? And the answer from Zahn is absolutely no, it couldn't. And similarly with the -- with the joinder cases. They could not have been brought --
04-70 +++$+++ 29352 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Unless 1367 effectively overturned Zahn.
04-70 +++$+++ 29353 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
04-70 +++$+++ 29354 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It was enacted later.
04-70 +++$+++ 29355 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It clearly was enacted later, but my point here is that I think the language -- when the Congress both in (a) and (b) harkens back to in any civil action of which the district courts have original jurisdiction, it's clearly not trying to amend 1331 or 1332.
04-70 +++$+++ 29356 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it's not -- the weakness in your point, I think, as I -- as I understand it, which is a very optimistic assumption, given the complexity here --
04-70 +++$+++ 29357 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I hope that's not a criticism of the writing.
04-70 +++$+++ 29358 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- is -- is that you want to read (a) as if it applies to arising-under jurisdiction and not to diversity jurisdiction. Very simple. Arising under jurisdiction, you do maintain jurisdiction over the original action. You can add a claim, but as long as there's one good claim arising under, there's original jurisdiction. Diversity, there isn't.
04-70 +++$+++ 29359 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
04-70 +++$+++ 29360 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If you add that plaintiff, you don't get the original -- that's not right?
04-70 +++$+++ 29361 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, that's not right, Justice Breyer.
04-70 +++$+++ 29362 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right.
04-70 +++$+++ 29363 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the -- you know, the traditional case. You're from one State, I'm from another State, I have a claim against you for at least $50,000, I sue you in diversity jurisdiction.
04-70 +++$+++ 29364 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-70 +++$+++ 29365 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is a civil action of which district courts have original jurisdiction. So I've sued you. You have an insurer who's going -- who -- who lives in the same State I live.
04-70 +++$+++ 29366 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-70 +++$+++ 29367 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You bring in the insurer in a third party -- in a third party claim under rule 14. Okay? That claim doesn't satisfy the $75,000, whatever the amount-in-controversy requirement is that applies, because you've got a -- a retention. Okay? Then -- and so your -- your claim against them is only for $50,000. That wouldn't satisfy the amount-in-controversy requirement but it does satisfy the supplemental jurisdiction over claims brought separately.
04-70 +++$+++ 29368 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so, in -- in other words, in that situation, it's a third party claim by the defendant against another person.
04-70 +++$+++ 29369 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. That would be one easy --
04-70 +++$+++ 29370 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that's then -- that does fall within (a).
04-70 +++$+++ 29371 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely falls within (a).
04-70 +++$+++ 29372 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And then (b) knocks it out insofar as the plaintiff wants to assert a claim.
04-70 +++$+++ 29373 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly.
04-70 +++$+++ 29374 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that person can assert a claim against a plaintiff.
04-70 +++$+++ 29375 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly. That would be precisely how it operates.
04-70 +++$+++ 29376 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that, you say, is the answer to what I was going to ask --
04-70 +++$+++ 29377 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Which is?
04-70 +++$+++ 29378 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- which is why didn't they just use the word 1331. And the reason they didn't just use the word 1331 is there is a subset of diversity claims that also have to fall within (a).
04-70 +++$+++ 29379 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. I picked one.
04-70 +++$+++ 29380 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right.
04-70 +++$+++ 29381 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's another one that fits --
04-70 +++$+++ 29382 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So the other thing, of course, is if these three professors who wrote this had -- had figured this out so well, why in heaven's name didn't they at least write an article about it so we'd know what we were doing? (Laughter.)
04-70 +++$+++ 29383 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, my guess is if they did, you probably wouldn't want to rely on it as the authoritative source for interpreting the language of the statute in any event.
04-70 +++$+++ 29384 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What you're saying, Mr. Phillips, I think is that 1367 does nothing with regard to what was in the old days at least 1367(a), what was called ancillary jurisdiction. It changed pendent jurisdiction to overrule the Finley case.
04-70 +++$+++ 29385 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Pendent party jurisdiction.
04-70 +++$+++ 29386 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so you could have appendant parties, but what was once known as ancillary jurisdiction, applicable in diversity case, was not changed at all by 1367(a). I think that's what you're saying.
04-70 +++$+++ 29387 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, no. Actually what I'm saying is that 1367(a), in effect, codifies both aspects of the Kroger -- of this Court's decision in Kroger. In Kroger, the Court said you would have ancillary jurisdiction over the third party claim that I identified for Justice Breyer, and that that would fall within 1367(a) under my interpretation of it, but that 1367(b) would not allow the plaintiff then to bring a subsequent action against the third party defendant.
04-70 +++$+++ 29388 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But whether you -- whether you call it codify or anything else, there would be no change. 1367, as you read it, made no change. 1367(a) on the Federal question side certainly did. It overruled Finley. Before, you could have pendent party jurisdiction. Now you can. But Kroger was unchanged. I think what you're -- you're telling us is that except for some difference in (b), 1367(a) leaves ancillary jurisdiction as it found it. It doesn't make any change.
04-70 +++$+++ 29389 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The only way I would just -- you know, the only point I would make with respect to that is that I do think that in Finley this Court's opinion cast some doubt on the entire pendent and ancillary jurisdiction doctrines, and I think that 1367(a) is clearly designed to -- to eliminate that issue going forward because it says there is a role. There is now a -- an express provision from Congress to the courts of supplemental jurisdiction. And then the question is under what circumstances does it apply. So to go back to the Owen case, you know, we all assumed that there was ancillary jurisdiction over the third party claim. This statute makes it absolutely clear that there is jurisdiction over the third party claim because it -- it extends to that claim. And we know that by the express language of the provision. It wouldn't have changed anything if you accept the idea that the Court had inherent authority to do that. If you question that, then this is the basis on which that jurisdictional grant is provided. And so that is an important part of 1367(a) that affects --
04-70 +++$+++ 29390 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So what -- what is the language in 1367(a) that effects any -- any change in diversity jurisdiction, what was once called ancillary jurisdiction? I don't see that there's any change.
04-70 +++$+++ 29391 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I would go back --
04-70 +++$+++ 29392 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You may -- you may say that there's a confirmation of what was, but there's no change.
04-70 +++$+++ 29393 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it just depends on whether you accept as a given that the third party claim and other multi-party litigation was clearly going to fall within the Court's ancillary jurisdiction without the benefit of an express statutory provision granting that authority. If you accept that, then this makes a fundamental change. If I could --
04-70 +++$+++ 29394 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought that's what Kroger was about. It said, yes, that you could do it -- that the plaintiff then couldn't turn around and sue the third party defendant.
04-70 +++$+++ 29395 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-70 +++$+++ 29396 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that you did not need diversity between the defendant and the third party defendant.
04-70 +++$+++ 29397 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, but the -- the question is what was the statutory authority for that part of -- for the first part of ancillary jurisdiction, which is the bringing in of the third party defendant. And that's what 1367(a) does in the diversity context. If I could reserve the balance of my time, Justice Stevens.
04-70 +++$+++ 29398 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Long. Mr. Long, you represent the respondent in the second case. Is that right?
04-70 +++$+++ 29400 +++$+++ FALSE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Stevens. Justice Stevens, and may it please the Court: I have three basic points. First, section 1367 does not alter the requirements of section 1332 for original jurisdiction in a civil diversity action, and therefore, the plain language of section 1367 does not alter the complete diversity requirement or the requirement that each plaintiff in a diversity action must have more than $75,000 in controversy. Second, there is no sound basis for distinguishing between the two jurisdictional requirements of section 1332, and therefore, if section 1367 alters the matter-in-controversy rule of Zahn and Clark, it also alters the complete diversity rule of Strawbridge. And third, the best interpretation of section 1367 and the one that causes the least harm is that it overturns the result in Finley and otherwise, with a few exceptions, codifies the pre-Finley understanding of supplemental jurisdiction. Now, our -- our primary argument has already been addressed, and I don't want to waste time on it but it is crucial, critical to our argument. And that is, that the language of 1367(a) is that supplemental jurisdiction is conferred but only in a civil action, of which the district courts have original jurisdiction.
04-70 +++$+++ 29401 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And then you say the civil action has to give -- be diverse as to all claims.
04-70 +++$+++ 29402 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, yes. I mean, basically each -- as to each plaintiff, they must be diverse from each defendant and each --
04-70 +++$+++ 29403 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Over every claim -- every claim in the class.
04-70 +++$+++ 29404 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-70 +++$+++ 29405 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now, in -- in City of Chicago, we did not give that meaning to the term civil action. Now, then you would say, well, City of Chicago is a Federal question case.
04-70 +++$+++ 29406 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly.
04-70 +++$+++ 29407 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But then I would say then you're asking us to interpret civil action differently in two statutes.
04-70 +++$+++ 29408 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't think so. I think what the plain language -- and -- and here we are, I think -- we can rely on plain language. What 1367(a) says is that in each case you must look to some other statute that confers original jurisdiction. It can be 1331. It can be 1332. And of course, although those statutes use the same term, original jurisdiction, there are -- there's decisional law that comes along --
04-70 +++$+++ 29409 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, but they also use the term, civil action, and it seems to me that your interpretation of the two differs if -- if the City of Chicago --
04-70 +++$+++ 29410 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-70 +++$+++ 29411 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- is -- is correct.
04-70 +++$+++ 29412 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but I think it's the same answer. Original jurisdiction and civil action are found -- each of those terms is found in 1331 and 1332. And I do think it comes out of this Court's decisions that if you have a Federal question -- so you're claiming original jurisdiction under 1331 -- then yes, that is sufficient to give original jurisdiction over the action. That is what the Court held in the City of Chicago case. But it really can't be the same in a diversity case if, for example, there's going to be complete diversity. What -- what the courts have said that have thought that the plain language of 1367 compels this result that Zahn and -- and also Strawbridge go, they say look, the only way we can read this is if there's original jurisdiction of -- of one claim by one plaintiff against one defendant, then we've got original jurisdiction over the civil action. Then we're into supplemental jurisdiction and all we ask is -- is that within the same case of controversy, and then there are some exceptions in (b). But --
04-70 +++$+++ 29413 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then what you're saying is that this statute, as far as class actions go, changed nothing.
04-70 +++$+++ 29414 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, of course, our case is not a class action, but -- but we would say that --
04-70 +++$+++ 29415 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or party joinder, which is your case.
04-70 +++$+++ 29416 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Or -- yes, exactly. It carries forward the rules of party joinder under 1332. Strawbridge is an interpretation of what is now 1332, the requirements for original jurisdiction. There has to be complete diversity. You can't simply look at one plaintiff and one defendant --
04-70 +++$+++ 29417 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Strawbridge has become less hallowed in light of the new congressional enactment. What's it called? The Sunshine in Class Action? What is it?
04-70 +++$+++ 29418 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I didn't bring --
04-70 +++$+++ 29419 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Class Action Fairness Act.
04-70 +++$+++ 29420 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Class Action Fairness Act. Well, but I think that in -- in a way it -- it shows what Congress -- when Congress means to amend section 1332 and make exceptions to these requirements for original jurisdiction under 1332 --
04-70 +++$+++ 29421 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I understand in 2005 Congress doesn't necessarily express what was before, but it -- it seems to me there's an institutional judgment that Strawbridge is not that hallowed a -- a principle.
04-70 +++$+++ 29422 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I think you could fairly say the -- the new statute reflects a judgment by Congress that in these class actions of national importance, which meet certain requirements, minimal diversity should be sufficient. And, of course, that's constitutionally permissible. But I don't think there's been any suggestion that in the -- the more run-of-the-mill cases there ought to be simply minimal diversity. I mean, there -- there are millions, literally millions, of civil actions filed in State courts each year. About 60,000 end up in the Federal courts on the diversity side of the docket. If even 1 percent of those cases moves over to Federal court, that's going to be a doubling of the Federal courts' diversity docket, which is about half the trials. So -- and I don't think there's been any suggestion by Congress -- and, of course, complete diversity and matter-in-controversy are the two rules that keep that from happening. Now, the -- the class actions will be a sufficient -- a significant additional burden on the Federal courts, and to my knowledge, there aren't any additional resources to do that.
04-70 +++$+++ 29423 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what is the -- can you -- this is something I should know, but I don't know. All right. It's very elementary. If you have two parties from different States, diversity claim, they're in court perfectly properly. Now, if somebody intervenes under, say -- say, rule 24 or suppose it's rule 19, a necessary party, and that destroys the diversity, does the -- does the Federal court still have jurisdiction? It does, I gather, under rule 14 if the defendant impleads or brings his own lawsuit --
04-70 +++$+++ 29424 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but that --
04-70 +++$+++ 29425 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- against a third party. What -- what happens under -- that doesn't destroy it, rule 14. Right?
04-70 +++$+++ 29426 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The way -- the way this was understood to work --
04-70 +++$+++ 29427 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-70 +++$+++ 29428 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and it's in -- and this is the answer to the point that, well, there can never be any supplemental jurisdiction on our view in a -- in a diversity case. Yes, there can because in a variety of situations -- and -- and you've named where there's a rule 14 third party claim and that's by a defendant --
04-70 +++$+++ 29429 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I understand that. What about 19 and 24?
04-70 +++$+++ 29430 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, before -- this -- this is exactly an excellent example because it's one of the few things that was clearly changed by 1367, and it was changed in the direction of narrowing the -- the jurisdiction. The understanding was that you could -- if a party came in on its own under rule 24, said I -- I can intervene of right --
04-70 +++$+++ 29431 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-70 +++$+++ 29432 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but they were coming in on their own -- that was allowed. I mean, this could potentially be a problem under this rationale of Kroger.
04-70 +++$+++ 29433 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. So you mean by allowed that plaintiff is -- one -- he's from the same State and destroys the diversity.
04-70 +++$+++ 29434 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. It would otherwise --
04-70 +++$+++ 29435 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He can do it, though.
04-70 +++$+++ 29436 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it would be allowed. That was allowed before.
04-70 +++$+++ 29437 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what about under rule 19?
04-70 +++$+++ 29438 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under rule 19, the rule was that you couldn't do it even if --
04-70 +++$+++ 29439 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You could not?
04-70 +++$+++ 29440 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You could not, and the idea was this was getting too close to the Kroger problem --
04-70 +++$+++ 29441 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And rule 20 you could not?
04-70 +++$+++ 29442 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Could not. It was --
04-70 +++$+++ 29443 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And rule 24 you could.
04-70 +++$+++ 29444 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Kroger problem is if you -- you certainly couldn't put in these nondiverse parties in the initial complaint. And of course, Kroger worried about, well, the plaintiff leaves them out and then they come in in a second stage, and that's an evasion of completed diversity. But we can see very clearly from subsection (b), this is -- this is one part of the statute that is clear -- that the -- it has now been changed so that claims by persons proposed to be joined as plaintiffs under rule 19 or rule 24 will not be permitted unless they can satisfy the requirements of section 1332, that is, complete diversity and matter-in-controversy. So this was the kind of thing that was being thought about in the statute. The fact that this was actually not permitted, clearly not permitted, shows that this statute is very concerned about preserving the requirements of complete diversity and matter-in-controversy. So I think that's actually a good example to focus on. Another one -- sometimes examples help. In -- in the Owen --
04-70 +++$+++ 29445 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The difficulty, I guess, is that I'm having is let's imagine rule 19 or 24.
04-70 +++$+++ 29446 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
04-70 +++$+++ 29447 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, you're saying that is an instance where, if you bring the party in and he destroys diversity, you're out. That was true before this statute.
04-70 +++$+++ 29448 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, what would happen is -- I mean, you wouldn't get to that stage, Justice Breyer, because you wouldn't let the -- the court would not let the party in.
04-70 +++$+++ 29449 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-70 +++$+++ 29450 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And sometimes you have to dismiss the case --
04-70 +++$+++ 29451 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So there -- before this statute, there never is going to be a circumstance in which you bring in a person under rule 19 and diversity is destroyed.
04-70 +++$+++ 29452 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, because you won't let them in. Now, sometimes you'll have to dismiss the entire case.
04-70 +++$+++ 29453 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Now -- now, this is one of the things that mixes me up here.
04-70 +++$+++ 29454 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't understand what you mean, sometimes you'll have to dismiss the entire case.
04-70 +++$+++ 29455 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If -- if it turns out that the party is indispensable under rule 19.
04-70 +++$+++ 29456 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Oh, is indispensable.
04-70 +++$+++ 29457 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then -- then what's confuse -- now, we look at 1367(b) and it says the district court shall not have supplemental jurisdiction over a claim by the plaintiff against a rule 19 person who is brought on the defense side.
04-70 +++$+++ 29458 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. Right.
04-70 +++$+++ 29459 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where the inconsistent -- i.e., it would be nondiverse, but you said there couldn't be such a situation.
04-70 +++$+++ 29460 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I may have misspoken. What -- what is happening here in (b) is that it's possible for parties to come in under rules 14, 19, 20, or 24. We think the reading of that is that Congress wanted to allow that. So it's not impermissible, but then if plaintiffs want to turn around and assert a claim against them, it's got to be one that satisfies complete diversity and matter-in-controversy. And that's to protect the Owen Equipment rationale. But then --
04-70 +++$+++ 29461 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Michigan plaintiff against Iowa defendant, necessary party, Michigan defendant, rule 19. Now we bring him in. And you're saying before this statute, not going to come in because it will wreck jurisdiction. Right?
04-70 +++$+++ 29462 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that -- well, I think that's correct, if the -- at least if the plaintiff was trying to bring it in. You may have got me to a point where I'm not going to be able to --
04-70 +++$+++ 29463 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Well, then I'm going to stop asking --
04-70 +++$+++ 29464 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- give you the exactly right --
04-70 +++$+++ 29465 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- because it's very easy to me to reach the outer limit of my understanding.
04-70 +++$+++ 29466 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it would be easy for you to reach it with me. But -- but the -- the gist of it is certainly if -- if the -- if the party is coming in under rule 19 as a plaintiff or you can come in as a defendant -- maybe that's the answer. That's -- that's permissible. You can join parties as to plaintiffs or defendants.
04-70 +++$+++ 29467 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You could have before this statute.
04-70 +++$+++ 29468 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. Let me -- let me try another simpler example. Maybe this one will work better. There are a number of cases that are actually cited in the Court's opinion in Owen Equipment, and they give a sort of brief summary of these situations in which you could actually bring in extra parties and claims in a diversity case and the extra parties or claims would not be satisfying complete diversity or matter-in-controversy, and yet the original jurisdiction of section 1332 would not be destroyed. Footnote 18 of Owen Equipment cites one of these cases. It's called Scott against Fancher. It was a Fifth Circuit case. There was an accident with three trucks. One of the drivers was from Texas and the other two were from Oklahoma. So the -- their case was brought in Texas against the two. The Texas drivers sued the two Oklahoma drivers, so there was complete diversity. It did meet the matter-in-controversy. So one defendant filed a compulsory counterclaim. That was one of the examples, and this is all mentioned in Owen Equipment. And that was okay. Of course, the citizenship would be the same, but no question about whether the amount in controversy was -- was up to the required level. And they also filed a -- a cross claim against the other defendant, and that was also allowed. And again, no -- of course, now you have two citizens from Oklahoma. So that would not be complete diversity, but that -- that was allowed. And again, it's because the defendants are bringing in -- this is the language that the Court used in Owen Equipment, that when a defendant is hailed into court against its will, then some of these ancillary claims are going to be permitted.
04-70 +++$+++ 29469 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But not all. You couldn't have a -- if I remember right, a permissive counterclaim.
04-70 +++$+++ 29470 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-70 +++$+++ 29471 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The defendant --
04-70 +++$+++ 29472 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-70 +++$+++ 29473 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- can have a --
04-70 +++$+++ 29474 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I'm thinking again this all -- I think this all traces back to Owen Equipment in this rationale that we're not going to allow evasion of the requirements of complete diversity in matter-in-controversy by the plaintiff. And I think there's textual evidence in 1367 that this is what Congress was doing. I mean, if you look in subsection (b), you can find textual evidence for this interpretation. I mean, first of all, it refers to this rule 14 situation, the impleader of a third party defendant. That was exactly the situation that was at issue in Owen Equipment against Kroger. And then it uses this somewhat strange language, this language of claims by plaintiffs against persons made parties under these rules. This is what Justice Breyer was getting me tripped up on a minute ago. But the -- the point here is that these people can come in. I mean, this language doesn't make a lot of sense if they can't come in at all.
04-70 +++$+++ 29475 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. They could at least come in if the defendant --
04-70 +++$+++ 29476 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-70 +++$+++ 29477 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- under rule 14 joined another person.
04-70 +++$+++ 29478 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-70 +++$+++ 29479 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And then person X wanted to join --
04-70 +++$+++ 29480 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-70 +++$+++ 29481 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that part of the action --
04-70 +++$+++ 29482 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-70 +++$+++ 29483 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that could be a 19, 20, or 24.
04-70 +++$+++ 29484 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly. Exactly. That's -- and so there is work to be done in subsection (b) even in a diversity case. The only other point I'll make here is that counterclaims and cross claims come in under rule 13 of the Federal Rules of Civil Procedure, and there is actually rule 13(h) which says very specifically that parties may be brought in -- additional parties may be brought in under rules 19 and 20, once you get a counterclaim or a cross claim going. So that is -- could explain why there are these references to rules 19 and 20, as well as 14 and 24, in subsection (b). I do want to get to the argument that's made by -- or the petitioners in our case, which is really -- as I understand their argument, they accept that there must be original jurisdiction over the entire civil action, and they accept that that means that there must be complete diversity. But then they say, well, matter-in-controversy is really different. It should be treated differently. It really doesn't go to whether the court has jurisdiction over the civil action. It only goes to whether it has jurisdiction over a particular claim. And we don't think that's tenable. And -- and here would rely on statutory language, and it's the language of section of 1332, which sets out the two requirements for original jurisdiction of a civil action. Strawbridge is an interpretation of that requirement. To have original jurisdiction over the civil action, there must be complete diversity. Petitioners agree with that. The decisions like Zahn and Clark are an interpretation of the other requirement to have -- to meet the matter-in-controversy requirement, and to have original jurisdiction over the civil action, each plaintiff must meet that requirement. So --
04-70 +++$+++ 29485 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If we descend from the level of parsing the -- the statute to what's going on in these cases, in your cases I take it there was an injury to a child.
04-70 +++$+++ 29486 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-70 +++$+++ 29487 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that qualifies under the amount-in-controversy.
04-70 +++$+++ 29488 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-70 +++$+++ 29489 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And her mother or sister and, I think, father wanted to come in and -- and bring claims that were entirely derivative of the injured child's claim.
04-70 +++$+++ 29490 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-70 +++$+++ 29491 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And on your reading of 1367, there's the -- the -- there's no accommodation for that. So you'd either have to have the whole lawsuit in the courts of Puerto Rico or you'd have -- let the child sue in the Federal court and the parents would have to bring a separate suit?
04-70 +++$+++ 29492 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I mean, it's not -- it's -- that is the rule of Zahn and Clark that has been the rule for many decades. Yes, the problem can be cured by dropping some of the plaintiffs. That's a possibility, but you cannot have this piggy-backing, bringing in additional claims that are jurisdictionally insufficient. You can't get around Strawbridge and complete diversity that way, and you can't get around the matter-in-controversy that way either. They -- they are parallel in the language of 1332.
04-70 +++$+++ 29493 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what a legislature might think, well, now this Finley has -- we've been -- taken care of that. And your case looks very much the same in terms of breaking up a lawsuit into two when it makes sense to try it all together. So we think that -- that old case should go just the way Finley went. And the same thing with Zahn because, after all, Zahn doesn't fit very well with Ben Hur. If you're saying that the Strawbridge rule -- I mean, what really counts is diversity, and -- and Ben Hur says the only named representative citizenship counts and yet the amount-in-controversy, the lesser thing in your view -- every single member of the class has to meet that amount, but only the named representatives have to be of diverse citizenship.
04-70 +++$+++ 29494 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you've made a number of points. I wouldn't agree that the matter-in-controversy is the lesser requirement. I mean, indeed, in the class action situation, because of Ben Hur, that's the only rule that keeps out additional plaintiffs.
04-70 +++$+++ 29495 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if you -- does it make sense to have a rule that says we're going to ignore the citizenship of the members of the class for diversity purposes, for diversity of citizenship? Only the named representative counts. Well, then why shouldn't only the named representative count for amount-in-controversy? That would have been a rational thing for Congress if they wanted to fix that.
04-70 +++$+++ 29496 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in -- in the class action context -- and again, my case is not a class action -- I frankly can't explain how you reconcile Ben Hur and Zahn. I think those -- the cases -- for the same -- if -- if the rationale of Ben Hur is that the class members are not really parties in the full sense and so we don't need to worry about their citizenship, I would think you could make the same type of argument as to matter-in-controversy that as long as the representatives satisfy it, they're the parties in the full or true sense and so that's all that counts. But the Court decided Zahn. There was really no doubt about that. Congress never indicated that it had any -- any difficulties with that decision, and it's now well established. And I think -- the final point I'd just make very briefly is that if you were to interpret 1367 to have this broad effect of opening up diversity actions to unlimited joinder of plaintiffs, nondiverse plaintiffs, plaintiffs with -- who don't have the requisite amount in controversy, it -- it really would be absurd, not in the sense that doing that on its own is absurd. I don't contend that. But it -- it is not -- it would not be rational for Congress to go to all this trouble that it went to in subsection in (b) to rule out all these sort of indirect situations where the plaintiffs leave out a party in the initial complaint and then wait for the party to come in some other way -- I mean, things that frankly are not likely to happen in a lot of cases -- but then say, oh, but the -- the doors are -- are wide open under rule 20, bring in as many plaintiffs as you want right at the outset or later on if you'd prefer, don't worry about diversity, don't worry about the amount in controversy. Those two things just -- just don't go together. There are -- there are other things about subsection (b) that don't make good sense under the petitioner's view. I mean, for example, this is just one of them. If you just look at the language of subsection (b), it says you shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under -- a list of rules -- and then one of them is rule 20. Well, whenever you have more than one defendant in a case just named in the complaint, you use rule 20 get in more than one defendant. So read literally, that says if you had this broad view, plaintiffs can bring in as many additional plaintiffs as they like under rule 20. But on the defendant's side, as soon as you've got a second defendant in the case, suddenly all this supplemental jurisdiction goes away. Now, that makes sense under our view because plaintiffs are not supposed to be asserting these kinds of claims anyway. Whether there's one defendant or two, it's the rationale of Owen Equipment. Thank you.
04-70 +++$+++ 29497 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Long. Mr. Stearns, we'll hear from you.
04-70 +++$+++ 29499 +++$+++ FALSE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: I believe what's at stake here is whether this Court was serious in the Finley decision, and it's interesting that it was a 5 to 4 decision, in which four of you concluded that pendent party jurisdiction was a logical extension of Gibbs and five among you concluded that it was not up for this Court to make that determination, that only Congress could make that determination, and in the 200 years of history of the Federal courts that had preceded Finley, that the track record of this Court and the lower courts in expanding Federal jurisdiction had been a rocky one. But you weren't going to do it anymore. Now, that wasn't the first time this Court had said those words, we're not going to do it anymore, but it was said in a way that got somebody's attention. And if there was a surprise, it was within a year Congress did precisely what you asked them to do. They adopted 1367, and they did it in the way that Congress does things. It's better not to watch. They don't necessarily explain it carefully. They don't do it in an organized and comprehensive way. It is a matter that was of great interest to a small number of people and of no interest to the great body politic. Let's face it. Diversity jurisdiction is of great interest to you and me; it's of little interest to the people until they're hauled into court and find that only part of their case can be there. And when we look at the history of Federal jurisprudence, what do we see? We see that the history of this Court has been largely to allow defendants hauled into court to ignore rules that we once thought were sacrosanct, for example, the notion of destruction of jurisdiction. And in law school we all learned about destruction of jurisdiction. It doesn't apply. When a defendant is brought into court, we ignore Strawbridge. We did because this Court and other circuit courts said you could. And incidentally, when they're brought into court, they're brought into the same civil action as any plaintiff or defendant in the original complaint.
04-70 +++$+++ 29500 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you talking about a claim mover? I'm not --
04-70 +++$+++ 29501 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Any claim, Your Honor, that's brought in in a third party practice, any claim that's brought in an additional party claim is part of the same civil action. There's only one form of action. All the claims are in that one form of action. The importance of this, incidentally, is that their entire argument depends on interpretation of the two words, civil action. Does the district court have original jurisdiction over a civil action if the civil action includes claims over which there's clearly original jurisdiction and claims where there is not? Now, historically -- incidentally, Exxon has to basically make new law, and they do it by saying that Zahn stands for the proposition that there's no jurisdiction over a class action which includes smaller claimants. I -- I dare you to read Zahn and find those words. They don't exist. All Zahn says, all Snyder said, which preceded it, is that every class member's claim must be viewed individually. Now, that's a very interesting conclusion. In other words, it doesn't say there's no jurisdiction over the class action. It simply says the claims of the absent class members who don't meet the jurisdictional amount should be dismissed. Now, interesting, look at the language in 1332. It says the district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000. Well, when we read that statute and we apply Zahn and Snyder, we say civil action doesn't mean the aggregate of all claims. There we say what it means is we must evaluate each individual claim to determine if each individual claim within the civil action meets the jurisdictional minimum of the diversity statute.
04-70 +++$+++ 29502 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I imagine that if you filed a claim and the plaintiff was a class and the class contained a number of people who did not meet the jurisdictional minimum and they file a claim against a defendant in a diversity suit, I imagine the first thing the judge would say would be, I've read Zahn and we don't have jurisdiction over this action.
04-70 +++$+++ 29503 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Indeed. That was prior to the --
04-70 +++$+++ 29504 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, that was prior to the statute. So -- so they say, well, that's what the judge would have said, and moreover, if you had not a class action and you had three plaintiffs and one of them was from a different State than the defendant and the other two were not, the first thing the judge would say is, I'm very sorry. There is not complete diversity. I do not have jurisdiction over this action. And so I take it their point is by coincidence or not, that's what this statute says.
04-70 +++$+++ 29505 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'd --
04-70 +++$+++ 29506 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And since that's what the statute says, that's what it means.
04-70 +++$+++ 29507 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-70 +++$+++ 29508 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It means that this kind of a situation does not fall within 1367(a) because there was not jurisdiction over that action. So I agree with you that those words are what their claim depends upon, but what is the answer to that contention?
04-70 +++$+++ 29509 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Isn't it interesting, Your Honor, that what drove 1367 was this Court's decision in Finley? And what's interesting about the argument that Exxon makes here is that Finley discussed the words civil action. And in fact, what Finley said in civil action is rejected, the very argument Exxon makes here --
04-70 +++$+++ 29510 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. Finley happened to be an arising-under case, and in an arising-under case, as long as there is one claim that arises under, there is jurisdiction over the action.
04-70 +++$+++ 29511 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, I -- I agree that --
04-70 +++$+++ 29512 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Well, if you agree -- and I'm -- when I'm saying these things in such a definite tone of voice, they reflect deep insecurity because I -- (Laughter.)
04-70 +++$+++ 29513 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let -- let me tell you --
04-70 +++$+++ 29514 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but I -- I want to know what is the answer to that point.
04-70 +++$+++ 29515 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I was going to agree and disagree. I agree that Finley was a Federal question case. That, however, doesn't go to the point of what this Court said about the words, civil action. What you said was the 1948 recodification came relatively soon after the adoption of the Federal Rules of Civil Procedure, which provide that there shall be one form of action to be known as civil action. Consistent with this new terminology, the '48 revision inserted the expression, civil action, throughout the provisions governing district court jurisdiction. And what the Court held is there's no meaning to those words, especially when the revision is more naturally understood as stylistic. So the words, civil action -- and when you look at 1332, which is what Zahn is based on, if their interpretation of the words, civil action, was correct, then Zahn was wrongly decided and Snyder was wrongly decided.
04-70 +++$+++ 29516 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Stearns, there's a difference. It's not just style. There's a difference between a claim and a civil action. A civil action can bundle several claims.
04-70 +++$+++ 29517 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Indeed, Your Honor, but if their argument was correct, that the civil action bundled the claims, as they suggest, then Zahn was wrongly decided. Then the amount in controversy in Zahn was the totality of all the claims. In other words, to preserve Zahn, which concluded that the civil action word means an individual analysis of every claim within it, to preserve that conclusion, they have to argue the opposite conclusion that the words, civil action, mean all the claims are aggregated. The problem with that argument is that the historical practice of this Court --
04-70 +++$+++ 29518 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think they -- what -- the argument that I heard was not that all the claims have to be aggregated, but that they can't get in the door.
04-70 +++$+++ 29519 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Their -- well, Your Honor, respectfully, Congress created two doors. And they have a -- a door which is the door that existed under the Constitution, which is Article III jurisdiction. You can come in as a diversity plaintiff into -- into the courthouse. Now, Congress says there's another door. Congress went through and cleaned up 200 years of Federal court jurisprudence. And incidentally, it is anathema to law professors who have written books and tomes and lectured to law students, Your Honor, who don't understand what they're reading. The notion that in 1367 in one page, Congress could write down everything you needed to know about supplemental jurisdiction is horrifying to a host of law professors --
04-70 +++$+++ 29520 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I don't see -- where I'm starting from this -- because at some point I'd like you to get to the -- the virtue of their position in my mind at the moment is, one, it is consistent with the language, which says civil action, not claim. Two, it is consistent with the only instruction I read that any legislator gave to the people who were writing this, staff, namely, write something that's noncontroversial. And third, I can, on their interpretation at least, I believe at least late at night, make sense out of all the words in these three different sections.
04-70 +++$+++ 29521 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-70 +++$+++ 29522 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So at some point, I would appreciate your addressing that.
04-70 +++$+++ 29523 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, and I appreciate that, Your Honor, because let me start with the first premise. Three law professors didn't write this article -- didn't write this language. That's incorrect. The article is written by a subcommittee of the Federal Courts Study Committee that was chaired by Judge Posner. Judge Posner is the author of one of the decisions that affirms the -- has the same view as the Eleventh Circuit. Judge Posner had a member of his subcommittee, Mr. Kastenmeier, who was a Representative who just so happened to be chairman of the Senate Judiciary subcommittee that presented this language. What happened --
04-70 +++$+++ 29524 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The Federal -- the Federal Study Committee was divided on Zahn issues.
04-70 +++$+++ 29525 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-70 +++$+++ 29526 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They -- they didn't make a recommendation one way or another on it.
04-70 +++$+++ 29527 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's partially correct, but significantly incorrect, Your Honor. The subcommittee specifically said Zahn was wrong and wrote language to overrule Zahn.
04-70 +++$+++ 29528 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, and the whole committee said we do not want to take a position on Zahn.
04-70 +++$+++ 29529 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Respectfully, Your Honor, you have to follow it through. The subcommittee said we intend to overrule Zahn. The words in this statute were written by the people who said we intend to overrule Zahn.
04-70 +++$+++ 29530 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought the --
04-70 +++$+++ 29531 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It goes to the full committee.
04-70 +++$+++ 29532 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I thought the committee report said we do not intend to overrule Zahn.
04-70 +++$+++ 29533 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Actually the subcommittee report said we did, of the Federal Courts Study Committee.
04-70 +++$+++ 29534 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did not the House committee report say we do not intend to overrule Zahn?
04-70 +++$+++ 29535 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What the House committee --
04-70 +++$+++ 29536 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did it? Am I correct or incorrect?
04-70 +++$+++ 29537 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The House report --
04-70 +++$+++ 29538 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Am I correct or --
04-70 +++$+++ 29539 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- yes, said we do not intend to overrule Zahn, Your Honor.
04-70 +++$+++ 29540 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right, and that was also the same report that was filed in the Senate proceedings as well.
04-70 +++$+++ 29541 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it is the report that was filed in the Senate. It has a footnote that says we don't intend to overrule Zahn or Ben Hur --
04-70 +++$+++ 29542 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
04-70 +++$+++ 29543 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- which I think everybody has concluded are mutually exclusive positions, but that's what it said. But, Your Honor, respectfully, we now know, because they've all written Law Review articles, that the people that wrote the House report, because they've said it, wrote those law -- wrote those words because they knew that the language did overrule Zahn and they didn't want to achieve that outcome.
04-70 +++$+++ 29544 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think -- I think you're overstating what they say in the article.
04-70 +++$+++ 29545 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, respectfully, what we do have is undisputed fact here because if you see Judge Weis' conclusion, for example, Judge Weis is one of the people who has adopted one of the opinions opposing our view of -- of this position.
04-70 +++$+++ 29546 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He was the chair of the --
04-70 +++$+++ 29547 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He was. And Judge Weis, even in his own opinion, acknowledges that his subcommittee that wrote the language intended to overrule Zahn. And so what he says is --
04-70 +++$+++ 29548 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you sure he said that?
04-70 +++$+++ 29549 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He does, Your Honor, and what he says is --
04-70 +++$+++ 29550 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where did he say that?
04-70 +++$+++ 29551 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He says it in a footnote, and he says he was --
04-70 +++$+++ 29552 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In a footnote to what?
04-70 +++$+++ 29553 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To his opinion in this -- in the decision. It will take me a second to find it. His opinion in the Meritcare v. St. Paul. In a footnote, he acknowledges -- what he says is he was upset that --
04-70 +++$+++ 29554 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's in an opinion written after the statute was adopted. Right?
04-70 +++$+++ 29555 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir. Yes, Your Honor. What he says --
04-70 +++$+++ 29556 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When he did this thing -- when he was trying to write this statute, he seemed fixated on one thing, Kroger, and -- and (b) seems to reflect an effort to make -- put in statutory form Kroger.
04-70 +++$+++ 29557 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To put it in context, the subcommittee of the Federal Courts Study Committee says Zahn is bad law and doesn't make any sense, which by the way, respectfully, I think it is. So then you go to the full committee. The full committee -- Judge Weis doesn't like diversity jurisdiction at all. He wants to abolish all diversity jurisdiction. They make no recommendations.
04-70 +++$+++ 29558 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but they do say in no event should the enclosed materials be construed as having been adopted by the committee.
04-70 +++$+++ 29559 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Precisely. That's the point he makes in his footnote. He acknowledges what the subcommittee did. But it's -- it's important to know Representative Kastenmeier was a member of this subcommittee. The Federal Courts Study Committee is not Congress. It's merely an advisory body.
04-70 +++$+++ 29560 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Stearns, one of the things that we do know was that Congress intended to make a modest change. They had their eye on Finley. They wanted to overrule that. And if there's an ambiguity, isn't a court well advised to make the least change?
04-70 +++$+++ 29561 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, let's take those points. The answer is you make the change that Congress says in the statute you should make. And so when you have an --
04-70 +++$+++ 29562 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if -- if you have a statute with a clear meaning, I agree with you, but this statute seems to be a bit of a muddle. And if you could read it in two different ways, then why don't you say, well, I'll pick -- if they're both plausible, I'll pick the one that doesn't introduce any radical change, that just makes a minor change?
04-70 +++$+++ 29563 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, respectfully, if we look at the changes that were adopted in 1367, not a single one of the ones you're hearing argued today anybody can seriously argue are significant. For example, the Zahn issue. Zahn has no material significance on litigation in the Federal courts. And why is that? It's because most plaintiffs don't want to be in Federal court. These plaintiffs are different. And incidentally, by the way, this is not --
04-70 +++$+++ 29564 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It -- it does -- to the extent that Strawbridge is involved, it -- it is --
04-70 +++$+++ 29565 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, respectfully, this Court has been looking the other way on Strawbridge for 200 years, and what Congress did was ratify some of your previous abrogations of Strawbridge and they made another minor adjustment. And you know what it -- what did they did is, again, consistent with 200 years of friendliness to defendants in Federal court. The whole notion of diversity jurisdiction --
04-70 +++$+++ 29566 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wait. On your last statement, I -- you -- something that I hadn't focused on.
04-70 +++$+++ 29567 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The whole --
04-70 +++$+++ 29568 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can you just -- you said it doesn't make any difference. I thought it's the defendants who want to be in Federal court.
04-70 +++$+++ 29569 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Indeed.
04-70 +++$+++ 29570 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they can't remove the action unless it could have been there in the first place.
04-70 +++$+++ 29571 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Precisely.
04-70 +++$+++ 29572 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And therefore, this interpretation, if you're overruling Zahn, would have made a big difference because it would have meant the defendants could have brought a lot of cases into Federal court by the removal, and you would have seen the plaintiffs bar up in arms if, in fact, this provision would have allowed for easier removal.
04-70 +++$+++ 29573 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, respectfully --
04-70 +++$+++ 29574 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ As -- as indeed they were in the Class Action Fairness --
04-70 +++$+++ 29575 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I was going to get there, Your Honor, but in fact, Your Honor, respectfully, I hate to disagree with Your Honor, but I believe you're incorrect. Is that what you see in the Class Action Fairness Act, for example -- and we filed it in our brief -- the House and Senate committee reports which discussed this case and the fact that the majority of circuits of the circuit courts have agreed with our view -- there has been no class actions of any materiality filed. In fact, they made the note in 1999 or '97 more class actions were certified in one county in Illinois than filed and certified in the entire Federal system. And the reason they said that is because most plaintiffs lawyers, notwithstanding Zahn -- it isn't -- Zahn isn't the issue. Snyder was the issue. It's aggregation that's the issue. All plaintiffs lawyers had to do to avoid removal is simply put named plaintiffs that don't meet the jurisdictional standards for diversity, create imperfect diversity, have amounts in controversy of less than the amount in controversy required, and then they could never be removed. So Zahn is simply a footnote, and it got it -- all the billing of Zahn, Zahn, Zahn -- the reality is the predecessor to Zahn, which is Snyder that says that you can't aggregate under 1332 the amount in controversy, that was the significant decision. And what Congress has now done a few weeks ago is to take up the Snyder case and has overruled Snyder. And what they've done is to say, when there's an aggregate claim of more than $5 million, it goes into Federal court. But look at what Congress has said. Look at --
04-70 +++$+++ 29576 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They haven't overruled Snyder. They said in this class action context if you meet the standards that they set, you can aggregate.
04-70 +++$+++ 29577 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But Snyder was a class action case that says you cannot aggregate claims under 1332. And so what Snyder says is because -- because the Class Action Fairness Act is restricted to diversity cases or diversity type cases, what it says is that -- and, therefore, is an amendment to 1332. What it does is add a new section to create original jurisdiction in diversity cases involving class claims. And incidentally, the significance of that in this case is -- Justice O'Connor, you said is it retroactive. The answer is yes and no. It's applicable to all cases filed after its effective date, which is already effective as of a couple weeks ago. If Exxon gets dismissal of this claim and gets it refiled, we will be applicable to the Class Action Fairness Act and be right back in Federal court where we started. And so what you're left with is all they're really looking for here now is a new trial, and this is just a procedural game to come back. But there's very -- one important point I want to make to you. You said in Finley we're going to not make -- do this with jurisdiction anymore. We're going to ask Congress to do it. And Congress did it. And so you read 1367 and, respectfully, it is clear. Every court that read it at a certain point said it was clear, and the only ambiguity is created by a House report that says, notwithstanding what it says, we meant something else. That's -- the ambiguity is not created by the statute, but by an --
04-70 +++$+++ 29578 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's not a direct quote of the House report, I might find out. (Laughter.)
04-70 +++$+++ 29579 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry?
04-70 +++$+++ 29580 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I say that's not a direct quote of the House report.
04-70 +++$+++ 29581 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I paraphrased, Your Honor. (Laughter.)
04-70 +++$+++ 29582 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What we're left with here in this circumstance is that -- that what -- by the way, what you clearly have in the legislative history is -- for example, they obviously made a comment, a joke about what this Court will do when you look at the plain language of the statute and the history that they put in it. And by the way, these three gentlemen did not write the statute. It should be perfectly clear. They were there observing what was going on when it was going on.
04-70 +++$+++ 29583 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think they were being intellectually honest in their Law Review or do you think -- accuse them of something other than honesty in what they said?
04-70 +++$+++ 29584 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, I think whether it is or not, it demonstrates the mistake of relying upon something other than what's in the plain language of a statute because once you begin to encourage that kind of game to be played, then how would you have a trial over whether these professors were being honest or not? What do we know? They did write Law Review articles and they did pretty much admit what they did. Now, I may have a different take on it than someone else. But what are we doing here? These -- these plaintiffs filed this lawsuit in Federal court. They didn't go to Madison County, Illinois to sue one of the largest companies in the world. They didn't go to a friendly State court forum. They read 1367 to say, okay, we got original jurisdiction here under 1332 of the civil action, and we read civil action, because we just read Finley and Finley says civil action are just words of art. It doesn't mean what they say it means. So we filed in the Federal court and through the second door come these supplemental claims. And the supplemental claims are -- are -- incidentally, so it's perfectly clear, in a class action context under rule 23, the named plaintiffs represent themselves and they assert their own claims, all of which were within the jurisdictional minimum, and they represent the claims of unnamed class members who they have jurisdiction over those claims through the exercise of supplemental jurisdiction. Any way you cut it, this case -- all it is is come back again and try it again. It's been in the Federal courts for 14 years. 14 years. Enough. It's over. They were found guilty. Judgment should be entered. And incidentally, that last point. They want to reverse a judgment. There is no judgment.
04-70 +++$+++ 29585 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But do you agree that if they're right on the interpretation of 1367, the judgment has to be reversed?
04-70 +++$+++ 29586 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is no judgment, Your Honor, because the district court was well aware of the issue that existed here, notwithstanding his disagreement with some other courts, and he refused to enter judgment until the claims process went through where it was determined whether each claimant was above or below the jurisdictional amount. And so what he did in doing that was to -- there is no judgment entered and he said, I'm not going to enter final judgment until this process is over. And every single case --
04-70 +++$+++ 29587 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me modify the question. Do you agree that if they're correct, the entire action has to be dismissed?
04-70 +++$+++ 29588 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's no case that is -- that would support that outcome, including the cases they cite.
04-70 +++$+++ 29589 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your answer is no, I gather.
04-70 +++$+++ 29590 +++$+++ TRUE +++$+++ MR. STEARNS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The answer is no. Newman-Green doesn't say that. Caterpillar doesn't say that. No reported case says that. No reported case has ever found jurisdiction destruction in a jurisdictional amount case ever in the annals of Federal jurisprudence. And when people -- you invite people to look at a statute, you invite Congress to write one, and people look at it and read it, they ought to be able to rely upon it and not what some staff person put in the back door in a legislative report that's inconsistent with the words of the statute itself. Thank you.
04-70 +++$+++ 29591 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Stearns. Mr. Ayer, we'll hear from you.
04-70 +++$+++ 29593 +++$+++ FALSE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: We have a little bit different view I think of the statute than the other counsel arguing this morning. We -- we believe that the statute actually makes quite a lot of sense, and we also believe emphatically that it does not reverse the complete diversity requirement. I think the clearest indication of the incorrectness of Mr. Phillips' and Mr. Long's position is the comparative treatment under their reading of the Federal question case that is in Federal court and the diversity case. Under their reading, it's perfectly clear -- and I think everyone agrees -- that -- that when additional claims, as in the City of Chicago case, are joined with a Federal question case and they are -- they relate to the same subject matter, that it will, in fact -- they will be within the supplemental jurisdiction. Most importantly, for purposes of this comparison, they will not destroy the original jurisdiction over a civil action even though they are claims that are not themselves within the original jurisdiction. Somehow or other, the argument is advanced that when you have a diversity case in Federal court where all parties are diverse and there is the jurisdictional amount satisfied and you bring in other parties who do not destroy complete diversity and therefore do not destroy the jurisdiction of the court over the initial matter that was before it -- somehow or other the argument is advanced that the jurisdiction over the civil action in that situation is destroyed even though it is not destroyed in the Federal --
04-70 +++$+++ 29594 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I -- I don't know what you mean when you say they -- they don't destroy complete diversity. You mean that the original plaintiff and the original defendant are still who they used to be?
04-70 +++$+++ 29595 +++$+++ TRUE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, no. No, I'm sorry, Your Honor. I -- I must have misspoke. What I mean to say is that -- that in the case where a -- a diverse additional plaintiff comes in to bring a claim --
04-70 +++$+++ 29596 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're talking about geographical diversity --
04-70 +++$+++ 29597 +++$+++ TRUE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-70 +++$+++ 29598 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- not jurisdictional.
04-70 +++$+++ 29599 +++$+++ TRUE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct. I'm -- I'm drawing -- effectively what -- the point I'm making is that this distinction between the Federal question case joined with cases that are not within the original jurisdiction and the diversity case, which is clearly within the original jurisdiction, because all parties are diverse, but it is joined with claims that are below the jurisdictional amount, so that they are not within the diversity jurisdiction.
04-70 +++$+++ 29600 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I don't understand the distinction that you're making between diversity of citizenship and amount in controversy since 1332 includes both. To qualify for diversity from the very beginning, you have to be of the opposite -- you have to be from a different State than your opponent and the matter in controversy must be X. And that's always been part of the diversity -- diversity jurisdiction. There were two components. One was the citizenship of the parties. Two was the amount in controversy.
04-70 +++$+++ 29601 +++$+++ TRUE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct, Your Honor. The -- the question -- I think the difference is that the concept of complete diversity, which this Court for 200 years has articulated as in the statute that grants diversity jurisdiction is a relational concept. In order to determine whether you have jurisdiction over any parties in a case, you must look at all of the parties in the case. With regard to amount in controversy, it's perfectly clear, and -- and 1367 changes nothing about the fact that 1332 jurisdiction requires meeting the amount in controversy. But if 1367 has conferred, as it has, supplemental, additional jurisdiction, then the question that has to be asked is, does the fact that a party coming in with what is otherwise a supplemental claim -- does -- does the presence of that party destroy the original jurisdiction that exists where the new party coming in is diverse but doesn't meet the jurisdictional amount?
04-70 +++$+++ 29602 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, they're saying what's sauce for the goose is sauce for the gander. If it does in the amount, it does so in the -- if it's -- if -- you're trying to drive a wedge between the geographical diversity and amount.
04-70 +++$+++ 29603 +++$+++ TRUE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct, Your Honor.
04-70 +++$+++ 29604 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And they say you can't do that under the statute. If you're prepared to say that bringing in a new plaintiff from the same State as the defendant does destroy diversity over the original action, you must also be prepared to say that bringing in a new plaintiff who only has $3 at issue destroys the original jurisdiction because there's no way, in terms of the original jurisdiction and the wording of 1332, to make that distinction.
04-70 +++$+++ 29605 +++$+++ TRUE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-70 +++$+++ 29606 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, you respond to that what?
04-70 +++$+++ 29607 +++$+++ TRUE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I will. Well, I will. I'll respond in terms of the City of Chicago. City of Chicago is a case where you have issues, claims within the Federal question jurisdiction. Additional claims in the case arise under State law. They are not within the Federal question jurisdiction, but they are related to the same case or controversy. The Court said, with no difficulty, both for purposes of 1367 and for purposes of 1441, that is a case within the original jurisdiction. It's a civil action. In both statutes, the same language. It's a civil action within the original jurisdiction. And -- and if that is the case, in a Federal question case -- I think I want to -- I'm going to get to the important point here. This Court has many, many decisions and many other courts have many decisions saying emphatically that when you add a party or when there is a party in a case who destroys complete diversity, the court loses jurisdiction over the entire matter. To my knowledge, the last time the Court said it as a holding was in the Schacht case a few years ago. There are, I think, dozens of cases from this Court. We cite about five of them on page 24 and 25 of our blue brief. That is a fundamental principle and it is because the concept of complete diversity is a relational concept. It depends on who the parties are in the case. As has been said many times, the requirement of amount in controversy is individual. The fact that a party submits a complaint and the complaint has one party, as in our case, whose claim comes within the diversity jurisdiction and includes other parties who we agree their claims do not come within the original jurisdiction -- does the fact that those claims are all put on the same piece of a paper, put on a complaint, does that mean the court, the trial court, lacks jurisdiction over the first claim as to which all the requirements are met? There are no nondiverse parties here. We have complete diversity. We have a claimant who meets the jurisdictional amount. We have a civil -- a civil action within the original jurisdiction.
04-70 +++$+++ 29608 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you -- you could say the same thing about -- about a -- a second claim that destroys diversity. You could say the same thing. Does that -- does that -- does the absence of diversity in this second claim destroy the diversity that existed in the first claim?
04-70 +++$+++ 29609 +++$+++ TRUE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it does, Your Honor.
04-70 +++$+++ 29610 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, no, I doesn't. I mean, the diversity that existed in the first claim is still there.
04-70 +++$+++ 29611 +++$+++ TRUE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'll -- I'll give you an example of a situation that is often trotted out as a problem under our reading of the statute, and we think -- the irony of it is, I think, none of the parties actually think it's a problem, and I certainly don't, and that is, the problem of a rule 20 plaintiff who is not listed in (b). But let's just say a -- a plaintiff comes in and files a -- a complaint. There is complete diversity. Clever plaintiff says, aha, here I am. I've gotten through (a). We're in court. Now, I'm in (b) and I am -- I'm a rule 20. I'm going to add some rule 20 plaintiffs, and I've got these folks who are not diverse and we're going to bring them in. Well, we -- we have cited cases, I think on page 33 of our brief, where it's perfectly clear that no court, I think, in its right mind is going to turn around 2 weeks later and say, oh, you got me. You know, we're going to have to let these nondiverse plaintiffs in. We're going to have to go forward with this case because you did it in the right order. If you had filed it all in one complaint, you'd be out of court, but you're a clever guy and you filed it in two different steps. So supplemental jurisdiction. You come in.
04-70 +++$+++ 29612 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Exactly, but that's the reason for saying that -- look, as I understand it -- and this is -- the -- the thing that got me thinking they may have a point here is A, B, and C are dealing with three separate problems. The first problem is how to overrule Finley without affecting anything else like Zahn or any of the others.
04-70 +++$+++ 29613 +++$+++ TRUE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we -- we disagree with that.
04-70 +++$+++ 29614 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The second problem B is simply Kroger. B is how to make statutory Kroger. And C is United Mine Workers v. Pennington to make sure they have discretion to get rid of supplemental jurisdiction. Now, once you see it as three separate problems -- I know they wanted me to see it this way, but once you see it as three separate problems, the words fall into place as long as you do interpret that word, civil action, to mean, well, there is no jurisdiction over the civil action where what's happened is you've simply added as a defendant a nondiverse party or you've added as a plaintiff a nondiverse party or a party that doesn't meet the jurisdictional amount. Now, I spell all that out because I hope in the next 15 minutes you will tell me why that's wrong.
04-70 +++$+++ 29615 +++$+++ TRUE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- we agree entirely with the first part of what -- what Your Honor has said. We -- we agree completely that the complete diversity requirement, which has been articulated so many times, means that when you bring in a -- a nondiverse party, it destroys jurisdiction. There is not a single case from this Court or that I know of any other court that states that the jurisdiction over the original action is destroyed. One of the things that was said here very -- somewhat cleverly this morning is that in Zahn the -- the case was not allowed to go forward because of the presence of these other parties. That isn't what they said. Three different times in Zahn the Court said these parties must be dismissed. There is no jurisdiction over these parties whose claims are small. They are out. No one ever said, oh, my goodness, we're going to lose jurisdiction over the case. Every time this issue arises in the context of -- of complete diversity, the court says, oh, my goodness, we don't have jurisdiction. We can't hear any part of this.
04-70 +++$+++ 29616 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Ayer, let -- maybe I'm going to oversimplify to the point of the absurd but let me try it. The argument that you're answering is the argument that there is no textual basis in (a) to distinguish the geographical diversity requirement from the amount-in-controversy requirement. Your answer is, I think, that when the drafters in (a) refer to action and jurisdiction, those terms have to be understood historically as we have understood them, and the significance of a -- a geographical problem, which does destroy jurisdiction traditionally, is different from an amount-in-controversy problem which is -- which does not and is dealt with more simply. Is that your --
04-70 +++$+++ 29617 +++$+++ TRUE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Your Honor.
04-70 +++$+++ 29618 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
04-70 +++$+++ 29619 +++$+++ TRUE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. And -- and I would just like to go on and say one other thing, and that is, this Court has written how many hundreds I don't know, but hundreds of cases articulating nuances -- and -- and I've learned how remarkable they are, the nuances -- of law under 1332 and under what amounts to a case within -- it's incredible how complex the law that this Court has spelled out is under 1332. Our view of the statute is that that body of law has been preserved and it's been preserved in two places. It has been preserved in the first clause of 1367(a), which is really all that's at issue right here, and it's also been -- been preserved in the last clause of 1367(b) which says that -- that as to the list of enumerated exceptions -- in essence, (b) says if you've got a case within the original jurisdiction, then it says, with regard to plaintiffs' claims against parties joined under 14, 19, 20, and 24 and with regard to claims brought by persons to be joined under 19 or 24, then you don't have supplemental jurisdiction if to do so would be inconsistent with the requirements of jurisdiction under 1332. What does that mean? That means that those excepted claims may not come in if they could not have been brought in the case originally without destroying original jurisdiction under 1332. It can't possibly mean, as our opponents I think read it, that the only time you have supplemental jurisdiction over these claims is when you already have 1332 jurisdiction over these claims. That isn't supplemental jurisdiction. It would make absolutely no sense to read the statute that way. So how do we read it? We read it to say if these are claims whose presence in the case at the beginning would have destroyed the anchor that gets us into court, which is a case under 1332, then the whole thing goes out the window. And furthermore, I would say -- and again, this is not an easy point to spell out in all of its nuances, but at any point in the case, which will not be many and won't be often -- but at any point in the case where this Court's cases would say that you just lost jurisdiction under 1332 -- and I say that's not often because basically there's a time of filing rule and there are many, many, as you all know better than I -- there are many nuances as to what exceptions exist to that and what don't. But the bottom line is if the case falls out of 1332 jurisdiction, such as when the clever plaintiff tries to join a rule 20 compadre to come in and bring a nondiverse claim, goodbye. You're out of court because --
04-70 +++$+++ 29620 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ See, that -- that's what I thought was their view of -- of (b). To go to (b), you understand (b), you have to go back before Kroger. And Kroger was worried about some clever plaintiff, as you say --
04-70 +++$+++ 29621 +++$+++ TRUE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-70 +++$+++ 29622 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- getting a defendant. He knows this defendant is going to bring a third party complaint against Smith from the same State, and he says, ha, I'll sue this defendant. And analogous things happen with rule 19 and 24, not really with 20 they said, but 19 and 24. And then Kroger says, hey, you can't do that.
04-70 +++$+++ 29623 +++$+++ TRUE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-70 +++$+++ 29624 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And so (b) was Judge Weis'effort to make sure that was codified. It wasn't really meant so much as some kind of exception from (a).
04-70 +++$+++ 29625 +++$+++ TRUE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-70 +++$+++ 29626 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It was meant to have an independent basis there. So I didn't see, if you give it an independent basis, how anything odd happens --
04-70 +++$+++ 29627 +++$+++ TRUE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-70 +++$+++ 29628 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- by giving it their reading.
04-70 +++$+++ 29629 +++$+++ TRUE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I just think that the whole statute makes a very great deal of sense. I mean, one question is, does the first clause of (a) -- is -- is that a gate you have to get through and once you get through it, you're done? I think the answer is no. I think -- I think clearly you've got to have a case within the original jurisdiction under 1332, and if you lose it, the supplemental jurisdiction is a tail that falls off. It -- it goes away.
04-70 +++$+++ 29630 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. -- Mr. Ayer, may I ask you a question on your interpretation? I think you were -- your position is that Clark against Paul Gray has been overruled, and whatever one may say about the attention that was focused on Zahn, Clark against Paul Gray has been on the books since 1939. And it seems unlikely that Congress would have overruled that without even making a peep to that effect.
04-70 +++$+++ 29631 +++$+++ TRUE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Clark, of course, is a Federal question case. Clark is a case at -- at the time when there was an amount-in-controversy requirement.
04-70 +++$+++ 29632 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. It's about an amount in-controversy rule.
04-70 +++$+++ 29633 +++$+++ TRUE +++$+++ MR. AYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. I -- I understand, Your Honor. I -- I think -- I mean, I -- I would -- it seems to me that at the end of the day, we have to say that the statute did what it did, and -- and if -- if it reversed Zahn, it seems to me that it certainly reversed -- reversed Clark, and frankly, we think the conclusion is easier for all of the reasons based in the statute. One thing I would like to do before -- before the light goes off here is -- is talk a little bit about the legislative history. And of course, our position first -- in the first instance is that there really isn't any reason to consider it because this is not a statute that destroys complete diversity. It doesn't do anything radical. It actually is quite sensible and limited and clear when you read it. So we don't think you need to go to it. But if the Court is going to go to it, we would submit that there is a far more sensible way of thinking about the legislative history than grabbing one sentence out of the House report, which I'll talk about in a minute as to what significance it really has anyway. But essentially the sequence of events here -- and I'll try to go through it quickly -- is that you -- and as Mr. Stearns said, you have basically three versions of this -- of this enactment. The last one got tweaked a little bit at the end. The first version is the -- is the subcommittee report. And as he indicated, the subcommittee report, which actually appears at page 14 and 15 of our brief, of our yellow brief -- if you read the text of (a), which appears on page 14, what you see is language which on its face clearly does reverse Zahn, and then you have the commentary that went with it in the working papers to the subcommittee, and that commentary could not have been more emphatic of -- of the intent to reverse Zahn. The second enactment, which we have put in an addendum to our yellow brief because it, frankly, plays little role in the case in -- in thinking through the statute, is the section 120 of House Resolution 5381. And essentially when Congress -- it's quite correct that the Federal Courts Study Committee did not specifically endorse the subcommittee proposal. It passed it along, saying it wasn't taking a position. When it got to Congress, from somewhere a new enactment came forward onto the floor or onto the committee that was addressing it, and that's this provision in the addendum of our yellow brief. And all I'm going to say about that is that when you look at that, number one, it looks entirely different. Number two, it actually does a much poorer job of preserving complete diversity, and it does, in fact, explicitly overrule Owen Equipment v. Kroger. Judge Weis came in and testified and said, that's bad, don't do that. You know, you've got to show more respect for complete diversity, and -- and you shouldn't do that. That got put into the ash can. So that's the end of 120. And the next thing he did, attached to his same testimony, was -- was submit a proposal, which is in our yellow brief at page 16. And this -- this is what we said we think you should enact. If you compare the language of (a) with the language of (a) in the enactment on page 14, you will see that it's a couple lines longer. It has a few more embellishments and words, but it is substantively indistinguishable, the provision in (a). And so what we have is Judge Weis putting forward a proposal that can't be substantively distinguished from the one that the subcommittee said, clearly correctly, would reverse Zahn. The last question here is what happened then, and what happened then to provision (a) -- there are essentially three things that happened to this whole provision that I'm aware of. One is they took out the words, on a claim, and that's the argument that's principally advanced here. They took those. So it's civil action on a claim. They took out on a claim. They also changed the last clause of (b) and they also changed the reference in the supplemental jurisdiction from case or -- from -- what is the -- the transaction or occurrence to case or controversy. And those are all the changes. We would submit that there is no basis to infer from any of those things, and particularly not the first one that dealt with (a), that they meant by dropping on a claim to somehow say, oh, my goodness, you've got to have jurisdiction over all of the claims before you. Again, that is inconsistent with the Court's opinion in City of Chicago. You can't come out the same way in City of Chicago if the presence of a nonjurisdictional claim destroys original jurisdiction over the civil action. The last thing I -- I want to say about the -- the jurisdiction which the other side relies upon -- essentially it's a sentence that says there was no intent to, quote, affect the jurisdictional requirements of 1332 in diversity-only class actions. And then there's a cite, a footnote to Zahn and Ben Hur. That's pretty much what there is that they talk about. Well, number one, as has been said, the authors -- apparently the authors of that language, the ones who put it in conceded that this legislative history was an attempt to correct an oversight in the statute, which it would have been better to have corrected in the statute. We think that's significant. But I would go beyond that and say that if you just look at this language, no -- no intent to affect the jurisdictional requirements of 1332 in diversity-only class actions, number one, most importantly, we don't think there's been a change in the requirements under 1332. As I've said before, this statute engrafted this Court's entire body of 1332 jurisprudence in the first line of -- of clause (a) and in the last line of clause (b), and so it's all there. No one has changed 1332. This is supplemental jurisdiction additional to it. And secondly, this is not a class action. There's nothing in our case that relates to a class action. That's an issue, if you think this is relevant, you have to deal with in -- in the other case, but you don't have to deal with it in our case. I guess the last thing I would say about legislative history is that we think probably the most important legislative history here, other than the tracking of these provisions, which we think is quite indicative, is -- is that the -- the House report, among other things, also said that what they were trying to do was to provide, quote, a practical arena for the resolution of an entire controversy. And we think that in the context of our case, as -- as has been pointed out here already by Justice Ginsburg, it makes very little sense to resolve our case by splitting it in two and sending it to different courts. Thank you very much.
04-70 +++$+++ 29634 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Ayer. Mr. Phillips, you have another 4 minutes, and I see that will be adjournment time, I will let everyone else know.
04-70 +++$+++ 29636 +++$+++ FALSE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank -- thank you, Justice Stevens, and I'd just like to make a few points. First of all, Justice Kennedy, you asked about the City of Chicago case, and Justice Ginsburg said this sort of feels like a Finley type case in the -- in -- in how it applies in the diversity context. But the fundamental point here is that there is a very different approach and there has always been a very different approach to Federal question jurisdiction and to diversity jurisdiction. Federal question jurisdiction has always been claims-driven. Diversity jurisdiction has always been party-driven. And the Congress that enacted 1367 in 1990 had to have understood that. It's been the law for as long as -- as we've had -- for the 200 years that Strawbridge has been around, that distinction has -- has existed. And so we're not asking the Court to interpret civil action differently in this particular statute. We're asking the Court to focus on civil actions of which the district court has jurisdiction. That incorporates all of the requirements of 1331 and 1332. Second, Justice Breyer, I'm a little reluctant to get into this rule 19, rule 24 to try -- but I think I can help at least clarify at least some aspects of it. Rule 19 by its terms excludes situations that defeat jurisdiction. So it says in the rule that if you're bringing in a necessary party -- remember, this is the defendant who is bringing in a necessary party -- if it would defeat jurisdiction, you can't do it, and if it still is indispensable, you have to dismiss the entirety of the case, which is precedent for the notion that sometimes you have to dismiss the entirety of the case in situations where you don't have jurisdiction over a particular party. But the -- the second question, rule 24. I think the standard is that you could bring in a rule 24 party within supplemental jurisdiction that doesn't defeat anything with respect to the original civil action. I think that was the rule prior to 1367. But to the extent it was or wasn't, I think 1367(a) and (b) combine to allow that to happen. (b) then says that if someone intervenes as a party, the plaintiff cannot bring a claim against that -- that intervening party. Justice Souter, you asked about the different treatment between the amount-in-controversy requirement and the geography requirement. If there is a distinction -- and I don't think this provision allows any kind of meaningful distinction between the two as it applies in the 1367 context -- it is that the amount-in-controversy requirement is more important. That's what Zahn held. You can dispense with the geography requirement in Ben Hur, but you cannot dispense with the amount-in-controversy requirement. And the reason --
04-70 +++$+++ 29637 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This didn't make a whole lot of sense.
04-70 +++$+++ 29638 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, except it does because the -- the amount-in-controversy requirement keeps a lot of smaller cases out of Federal court that otherwise would be in there. It is a protection of this Court's docket and all the Federal courts' dockets, and that's important. And that's also a distinction between the Federal question cases and the diversity cases. If you resolve diversity in favor of driving cases to State court, you are promoting federalism interests because State courts should decide law. If you drive more cases into Federal courts under Federal question, that's right because you think Federal courts are, in general, better suited to resolve Federal courts -- Federal questions. And then finally, with respect to the remedy, Justice Ginsburg, Newman-Green says you can simply excise some parties if there is no prejudice. And what I submit to you is we have a case that has been litigated from day one without jurisdiction involving more than 1,000 plaintiffs.
04-70 +++$+++ 29639 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That -- this point was not -- would be you're asking us to decide it in the first instance. You, I would expect, make argument to the district judge when you go back.
04-70 +++$+++ 29640 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, except that this Court in Dataflux didn't send it back. This Court in Dataflux decided that the right -- in Grupo Dataflux that the right answer is that the remedy for this mistake is the dismissal certainly of the class, but I think frankly the dismissal of the entirety of the case.
04-70 +++$+++ 29641 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's because the Court conceived of there -- there being one entity, so you couldn't -- you couldn't change -- split that one entity into two fictitious persons.
04-70 +++$+++ 29642 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's -- and that's what the district court held in Zahn, which is the reason the district court didn't allow this case to come -- didn't allow this to go forward as a class action. And that's important to remember. This Court didn't say you dismiss out anything in Zahn. Zahn came up without it being a class action. The district court dismissed the class action. It came up trying to reinstate it. This Court said you can't reinstate it. Thank you, Your Honor.
04-70 +++$+++ 29643 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Phillips. This -- these cases are submitted.
04-712 +++$+++ 29647 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll now hear argument in Lincoln Property v. Roche. Mr. Frederick.
04-712 +++$+++ 29649 +++$+++ FALSE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: This is a routine diversity case that went seriously awry in the court of appeals. The original defendants in -- named in the complaint, Petitioners State of Wisconsin Investment Board, which I'll refer to as SWIB, and Lincoln Property Company, are completely proper and diverse parties. SWIB owned the apartment complex, and Lincoln managed it through agents. The Fourth Circuit, nonetheless, embarked on a search for affiliates of Lincoln that it thought would be more appropriate party defendants, what the court deemed, quote, "real parties in interest." The Fourth Circuit's holdings are fundamentally flawed, in two respects. First, because the named defendants are proper parties, the court erred in holding that Lincoln had not carried its burden of proof by failing to establish that some non-named putative defendants might possibly destroy complete diversity, and that the remedy for such a possibility was dismissal of the action from Federal court. Second, the court erroneously engrafted a, quote, "very close nexus" requirement onto the test for require -- for determining the citizenship of a limited partnership. Now, with respect to the first issue, a number of black-letter legal principles govern a court's consideration of non-named parties. Let's start with the statutory text. The diversity statute, at section 1332(a), talks about civil actions, and a "civil action" is defined as the naming of a plaintiff and a defendant. A civil action does not encompass those that are not named in the lawsuit. That language is tracked in the removal statute, section 1441(a), which also speaks of civil actions, and in -- mirrored in 1441(b), which says that a defendant may remove, where it is properly joined and served.
04-712 +++$+++ 29650 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I thought (b) simply enacted a special necessary condition when you had a local defendant. I thought it was not an eligibility provision. I thought it was a limitation provision.
04-712 +++$+++ 29651 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is, Justice Souter, but what -- my argument is that that language, properly joined and served, simply tracks the civil-action requirement under the original diversity statute, as well as the removal provision of 1441(a). But what the court --
04-712 +++$+++ 29652 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it's consistent with it, but I -- it seems to me that it's a bit of a stretch to say that anyone who is properly joined and served, at least in a formal sense, is, therefore, the only person who may be considered in a -- in a diversity inquiry.
04-712 +++$+++ 29653 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What the court of appeals did, and where we think it got off track, was it took the -- to -- the phrase "parties in interest," and it -- and it took cases from this Court that have used the phrase "real parties in interest" to determine what are proper party plaintiffs, and it used that concept on the defendant's side of the ledger. And none of the cases from this Court talk about "real parties in interest" as being defendants. The explanation given by the court for doing it on the plaintiff's side is to ensure that a defendant is not going to be subjected to multiple suits. But there are many purposes --
04-712 +++$+++ 29654 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, I take it your answer to Justice Souter is yes. In other words, if the mistake that the court made was relying on 1441(b), it was a similar mistake for you, in your opening brief, to put such weight on that language in 1441(b).
04-712 +++$+++ 29655 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our position, Your Honor, is that the phrase "parties in interest" -- we were seeking to find out where the court could have applied that phraseology on the defendant's side. And the only place that we could find, in the statutes or the rules, was in 1441(b) and the explanation for removal, that we were not a "proper party in interest." And that's why we focused on that.
04-712 +++$+++ 29656 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Frederick, what about cases where a plaintiff sues two defendants -- one is diverse, and the other is not diverse -- and there is a motion by the defendants to dismiss for want of diversity? The plaintiff then says, "Oh, but only one of those defendants is the 'real-party whatever,' and I can drop the other one, because the other one is not the 'real party in interest'"? Now, that's a situation where courts, even if this court has never had that problem, have said, "If the second defendant, the non-diverse defendant, is a 'real party,' you can't get rid of the case that way, but if it's not -- if it's not, you can keep the -- just drop it and keep the case going against the 'real party in interest.'" There are such cases.
04-712 +++$+++ 29657 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are, Justice Ginsburg. And the analysis goes to whether or not -- - how far along in the proceeding the litigation has occurred before the plaintiff makes that choice. Of course, a plaintiff can voluntarily drop defendants, without any consequences, and the courts have fairly uniformly held that it -- that it is no jurisdictional bar for a plaintiff to drop a non-diverse defendant in order to ensure that diversity would be present. Had this complaint been brought in Federal court, there is no doubt that the court would have had original jurisdiction, because, on the face of the complaint, the two named defendants were completely diverse.
04-712 +++$+++ 29658 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ah, but the plaintiff said, "This is a complicated real estate business, and I want to discover whether there is -- whether the 'true defendant' is a Virginia citizen, as I am." So, on the face of it, it looks like there's complete diversity, but, in fact, the diverse defendant is hiding the "real party." I think that's the position that the plaintiff was taking.
04-712 +++$+++ 29659 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that position is incorrect, both as a factual matter and as a legal matter. As a factual matter, Lincoln is a completely proper party. Its name is on the lease. It was the employer of Mr. Roche, who was one of the plaintiffs in the suit. It issued the mold policies that are at issue in the case. All of its advertising is alleged to have been fraudulent in the original complaint. And it was the director and manager of the agents whose acts were alleged to have been negligent here. There's --
04-712 +++$+++ 29660 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The plaintiff --
04-712 +++$+++ 29661 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- no question --
04-712 +++$+++ 29662 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the plaintiff points to two offices of the defendant, who's -- the defendant is described by defendant as a Texas corporation -- but there was one witness -- Chaney, was it? -- who said that Lincoln is not a corporation. It is a partnership. No corporate board.
04-712 +++$+++ 29663 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Mr. Chaney's testimony has to be viewed in contact -- in context, Justice Ginsburg. He was not called as a 30(b)(6) witness as a corporate -- for a corporate form and structure. The testimony that was being elicited was to see whether Lincoln had other entities and ownership of properties in Virginia so that they could attempt to prove that there was a problem that the parent company, Lincoln Property Company, knew about. There was a high degree of imprecision in the deposition questions, and it's fairly clear, I think, that the lawyer and the witness did not understand what each other were talking about. Yet in the discovery process, not a single question was presented that would get at the organizational structure of Lincoln. There was not any attempt to get behind the management documents between SWIB and Lincoln Property. It was one very small snippet of a deposition which has been taken out of context and, we would submit, blown out of proportion by the Respondents in their submissions in this case.
04-712 +++$+++ 29664 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, they thought they got closer with a witness named Franzen, who was a Virginia resident, and who also described Lincoln as a partnership, and himself as a partner.
04-712 +++$+++ 29665 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Ginsburg, as the Real Estate Roundtable brief demonstrates, and is unrebutted, the real-estate industry operates through many very complicated structures for perfectly legitimate finance and tax-related reasons. And Mr. Franzen is a partner in some deals, but the testimony that was provided in a declaration -- and it is appended to our reply brief -- demonstrates that Mr. Franzen was not a partner in any deal that had anything to do with the Westfield Village Apartments. But what the court of appeals did was, it erected a burden of proof that said that the defendant has to prove a negative, that there is not some affiliate corporation out there that is a citizen of the Commonwealth that would be existing to destroy diversity. And that type of burden, to prove a negative, has never been authorized in this Court's cases. Rather, what this Court's cases have held is that, as the masters of their complaint, plaintiffs have an opportunity to plead whichever defendants they want to try to prove their allegations against. If they want to try to prove Federal claims, this Court has held that that kind of case can be removed. If it wants to plead around Federal claims, this Court's cases have said that that would be respected, as well.
04-712 +++$+++ 29666 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Frederick, earlier you made the point that Lincoln was a proper "real party in interest." I take it that's not critical to your position. Your argument would be the same if they weren't a real party in interest, wouldn't it?
04-712 +++$+++ 29667 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we don't think, Justice -- Mr. Chief Justice, that the "real party in interest" analysis even applies on the defendant's side, but it is -- it would not apply to this extent. It's not for the courts, once they have a proper defendant, to be searching outside the record for possible jurisdictional spoilers once jurisdiction has been established. And this court's cases --
04-712 +++$+++ 29668 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if they -- if they don't have a proper defendant, they should do that?
04-712 +++$+++ 29669 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If they do -- if there is no proper defendant, then I think --
04-712 +++$+++ 29670 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I presume, then --
04-712 +++$+++ 29671 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. It --
04-712 +++$+++ 29672 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that the plaintiff loses, not that you get to have the court find the proper defendant for the plaintiff.
04-712 +++$+++ 29673 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. It would be a 12(b)(6) motion to dismiss, where there is no defendant who would be liable to the plaintiff. But what the court of appeals did here was, it imposed an obligation on the defendants that, in effect, confuses the obligations that are in Federal Rule of Civil Procedure 19, which looks at whether there are necessary or indispensable parties. And what the court did was, in effect, to take an unnamed affiliated entity to Lincoln and treat it as the --
04-712 +++$+++ 29674 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Frederick --
04-712 +++$+++ 29675 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- functional equivalent of an --
04-712 +++$+++ 29676 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- will you just clarify one thing for me? Did the defendant ever take the position in this litigation, in discovery or anywhere along the line, that they sued their own defendant?
04-712 +++$+++ 29677 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. In fact, in their answer, Justice Stevens, they admitted that they were the manager of the apartment, that they had run it through their agents. They acknowledged that it was their policies that were in effect. There wouldn't have been a basis that would have survived rule 11 that would have given Lincoln Property Company a basis on which not to defend the lawsuit. And so, to that extent, we think it's quite clear that they are a proper party defendant. We've always taken the position that if we are found liable, we would pay a judgment. The issue is that we don't think we're liable, because we think that the allegations in the complaint are completely baseless. And that's what the district court found when it held, on summary judgment, that there was not a dispute of fact as to the core allegations of the complaint. Returning to the point I was trying to make about rule 19, there is a mechanism for the courts to consider whether there are indispensable parties. And what the court did here was to take a rule 19 kind of inquiry -- Is a non-named defendant really an indispensable party, such that dismissal of the action is warranted? -- and to engraft that onto a jurisdictional inquiry. But the reason why we have the Rules of Civil Procedure is, of course, to follow them. And what the Fourth Circuit did here was, it took that kind of analysis, but it didn't follow the standards that the courts have set out for applying rule 19 properly.
04-712 +++$+++ 29678 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, plaintiff certainly wouldn't want to say there's an indispensable party missing, I take it, because then that would put the plaintiff out of court. The plaintiff is arguing that there's another defendant who should be in here.
04-712 +++$+++ 29679 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And, Justice Ginsburg, they never sought to name or join that other possible defendant. They never brought a joinder motion. They never even conducted discovery as to whether or not there was another possible defendant that might be affiliated. And their theory of liability made it unnecessary, because their theory of liability was that Lincoln Property Company, the parent, is responsible for all the acts of its agents. And had they really wanted to be in Federal court, they could have found plenty of Virginia citizens that they could have sued. They could have sued the plumber, they could have sued the installer of a -- heating and air-conditioning equipment, they could have sued the general contractors. There are a lot of people they could have sued if they were that intent on staying in Federal court. But, instead, they made a tactical choice to sue the deepest pockets. And the deepest pockets happened to be out-of-State citizens that have a right under the statutes to remove the case.
04-712 +++$+++ 29680 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And because you represent the removing defendant, it is true, is it not, that the removing defendant has the burden of showing that proper diversity exists?
04-712 +++$+++ 29681 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And we readily satisfied that, both on the face of the complaint, which identified Lincoln Property Company as a Texas corporation, and in the remand notice, which identified its principal place of business as Texas. Even the court of appeals had no problem calling it a "Texas parent," because the corporation documents, which are part of the record, amply demonstrated that Lincoln Property Company is, in fact, a Texas corporation and satisfies those requisites under the diversity jurisdiction provision. The -- instead, what the Fourth Circuit has done is to erect a standardless forum that will increase litigation over jurisdiction by inviting courts to make inquiry about parties and entities that are not named in the lawsuit, solely for the purpose of determining whether or not there are jurisdictional spoilers.
04-712 +++$+++ 29682 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- I know you contend that's not the case, but let's say there is a in-State subsidiary that's completely responsible for all the challenged actions, and the in-State plaintiff sues an -- only the out-of-State parent. What happens in that case?
04-712 +++$+++ 29683 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what the ninth circuit, in a -- in an opinion by then-Judge Kennedy that we have cited, called Simpson -- said you respect the plaintiff's allegations. If the plaintiff wants to sue the parent, and the parent is an out-of-State corporation, the plaintiff is the master of the complaint. And, in the Simpson case, the Ninth Circuit held that it was completely proper to remain in Federal court, even though it was obvious to all that there was a subsidiary that was an in-State subsidiary that, if it had been sued, would be non-diverse. So, we think that's the proper answer, Mr. Chief Justice. Now, if I could turn to the second issue that we have prevented -- presented, that concerns how one would treat EQR, which is the management agent of Lincoln Property Company. We read the Fourth Circuit's opinion as engrafting onto this Court's test in the Carden case an additional requirement that, in addition to the citizens of --
04-712 +++$+++ 29684 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Frederick, would you clarify one thing for me? I don't know how we even get to the second question, about partnership. If you're right that Lincoln is a corporation -- it's a Texas corporation, with its principal place of business in Texas, end of case; it's the only named defendant -- so, how do we get to something about a partnership?
04-712 +++$+++ 29685 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If you agree with us on question one, Justice Ginsburg, reversal is the appropriate disposition, and the Court need not reach question two. We would submit, however, that, because the error is so egregious and leads to the difficulties that have been outlined by the Real Estate Roundtable for nationwide business entities, that the Court certainly ought to say that this was error, as well, or at least to vacate that part of the judgment, as well. And the reason is, in the Carden case, what the Court held was that the --
04-712 +++$+++ 29686 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I don't understand it. We wouldn't vacate the judgment in part. If we reversed, --
04-712 +++$+++ 29687 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, but you --
04-712 +++$+++ 29688 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that's the end of it.
04-712 +++$+++ 29689 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- expressed disapproval with this very-close-nexus standard by which the Fourth Circuit attempted to engraft onto the normal citizenship rules for a limited partnership the notion that its citizenship could be deemed, if its activities had a very close nexus with the State -- and I'm referring now to the passage, Justice Ginsburg, that's at pages 16(a) to 17(a) of the petition appendix. There are four page -- four sentences on those two pages that capture the error of the Fourth Circuit. And, just below the bottom, it says -- it says, "The real party in interest owns land and operates a substantial part of its business in Virginia, thus establishing a very close nexus with the Commonwealth."
04-712 +++$+++ 29690 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but, Mr. Frederick, before that -- you know, read back -- the court -- the Fourth Circuit has said, "It appears that the real and substantial party in interest is this Virginia subsidiary, be it a partnership, be it a corporation." So, it's -- the thing about nexus is not self-standing. The court is positing that there is a Virginia corporation or a Virginia partnership in the picture, and then says, "And given that, not only is it -- is it a Virginia entity, but it's got this close nexus because of -- it's operating substantially there, as well."
04-712 +++$+++ 29691 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, all of the evidence, Justice Ginsburg, in the record was that EQR was a Delaware limited partnership, where it was registered, composed of a Texas corporation as its general partner, and a limited partner that had two partners that were, themselves, Texas corporations. So, the evidence in the record established that EQR, which was the entity the Fourth Circuit was alluding to here, was, in fact, a Texas citizen, and its attempt to confuse the record by suggesting that there was a way to look at the citizenship of that entity through its, quote, "very close nexus with the State," we submit, is also in error.
04-712 +++$+++ 29692 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Am I correct, though, this entity we're talking about is not a party to the case?
04-712 +++$+++ 29693 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-712 +++$+++ 29694 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So --
04-712 +++$+++ 29695 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Justice Stevens, and that's where we think that the Fourth Circuit went off. I'd just like to make one more point before saving the remainder of my time for rebuttal, and that is that if the Fourth Circuit was correct, SWIB is a critical party here, which the respondents never deny. It is the owner of the apartment building. It is a completely proper defendant for the acts of negligence in -- and other wrongdoings that they allege. But they never mention that party in their brief. So, if the Fourth Circuit is correct that Lincoln, the parent, really is nominal under this Court's decisions, its citizenship should be completely disregarded. That was the holding of this Court in Walden versus Skinner in 1879. On the other hand, if a Lincoln affiliate at that stage in the litigation is a proper defendant, but non-diverse, the Fourth Circuit should have dismissed it, under Horn versus Lockhart, which was decided in 1873. If the Court has no further questions, thank you.
04-712 +++$+++ 29696 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Frederick. Mr. Joseph.
04-712 +++$+++ 29698 +++$+++ FALSE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The judgment of the Fourth Circuit should be affirmed for two reasons, one of which responds to a question that the Chief Justice asked, and that is that Lincoln Property Company was not a real party to the controversy.
04-712 +++$+++ 29699 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was what?
04-712 +++$+++ 29700 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Was not a real party to the controversy.
04-712 +++$+++ 29701 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then why did you name it, in the complaint, as the defendant?
04-712 +++$+++ 29702 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Trial counsel named it, because that was the understanding that he had. It turned out, as Lincoln proved on remand, that it had abandoned the apartment management business in 1991. And that's at page 239 of the joint appendix.
04-712 +++$+++ 29703 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then you'll be left without -- if you've named the wrong defendant, then you have a suit against no defendant. It seems to me you are automatically dismissed. You didn't substitute another defendant.
04-712 +++$+++ 29704 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You're correct, Your Honor, and that's because Lincoln said that it was the manager. Lincoln, in its answer, paragraphs 13, paragraph 36, paragraph 5, said that it was the real party in interest, when, in fact, it was not. And that's what's led to the problem that we find ourselves in, because when you have a non-real party to the controversy, jurisdiction is determined by the salient jurisdictional --
04-712 +++$+++ 29705 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I've never heard of that.
04-712 +++$+++ 29706 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
04-712 +++$+++ 29707 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought, if you sue A, and then it turns out A doesn't own the building, well, then you've got to sue B.
04-712 +++$+++ 29708 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that is --
04-712 +++$+++ 29709 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you didn't sue B.
04-712 +++$+++ 29710 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We didn't sue B. We didn't know B existed.
04-712 +++$+++ 29711 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's too bad, that, unfortunately, if you don't know who owns the building, it's going to be hard for you to bring the lawsuit. But we had, I thought, like, pages and pages of discovery rules and -- I've never heard, before, of a lawyer who has a -- you know, in this kind of situation, can't find out who owns a building there. There are records, there are all kinds of things.
04-712 +++$+++ 29712 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, Lincoln represented to the public and to the court that it was, in fact, the manager. Discovery was, in fact, served that would have adduced this information. This issue came up in the reply brief, so it's not addressed in our brief, but if any of your clerks would care to look at the Fourth Circuit's supplemental appendix, it --
04-712 +++$+++ 29713 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I've looked through the appendix, actually. I read the joint appendix, insofar as the opinion cited it. And it cited, in the opinion, several -- five factors -- and I guess there are no others, though you can bring them out if there were -- that supported you. And the only two that seemed to say that it had something to do -- - that seemed to have anything at all to do with suggesting that there was no diversity -- was Mr. Fred Chaney, which said that it was a partnership and not a company. I read that. That didn't seem to me to be what he said. And then somebody called Mr. LeBeau, who said that Franzen is a senior vice president and -- a Virginia resident -- and partner in Lincoln Property. So, I looked up that, and it was on, like, page 273 and, I think, 173 there. And they asked Mr. LeBeau, and he says, "Lincoln operates through many different structures, and I don't know what they were using here." Am I right -- -
04-712 +++$+++ 29714 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
04-712 +++$+++ 29715 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- or did I misread it?
04-712 +++$+++ 29716 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- you read that absolutely correctly. There --
04-712 +++$+++ 29717 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. So --
04-712 +++$+++ 29718 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- are other --
04-712 +++$+++ 29719 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- what is the evidence?
04-712 +++$+++ 29720 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are -- there is other evidence on that issue, which I believe is a distinct issue, but let me address that issue. In lawyer-prepared documents that were submitted specifically to rule 26(a)(1) disclosures and the -- and the supplemental interrogatory answers, which we've cited in our brief, it was lawyers that identified Mr. Franzen as a senior vice president and partner of Lincoln Property Company, raising an issue --
04-712 +++$+++ 29721 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where is it in the appendix? It said that he -- you sue person X, and I take it the reason that you won this case in the Fourth Circuit -- which was surprising to me -- was that a person called Mr. Franzen, who is a resident of Virginia, was a partner of the defendant. Now, I would like -- and, indeed, it was a partnership of which he was a partner. So, if a Virginia resident is a partner of the defendant, which is a partnership, then maybe you were right. So, I'm interested in: What is the evidence that Mr. Franzen was a partner of the defendant, which is a partnership?
04-712 +++$+++ 29722 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ On page 179 of the joint appendix, Your Honor, in Lincoln's supplemental answers to interrogatories, Mr. Franzen is identified in this affirmation as a senior vice president and partner of Lincoln Property Company. As I said, there are two issues. What is Lincoln's characterization? On the next page, page 181, in the supplemental initial disclosures, Mr. Franzen is again, in the middle of the page, identified as a partner of Lincoln Property Company.
04-712 +++$+++ 29723 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What page --
04-712 +++$+++ 29724 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, that --
04-712 +++$+++ 29725 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- is that? Is that a --
04-712 +++$+++ 29726 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that was joint appendix, page 181.
04-712 +++$+++ 29727 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's better than what is in the opinion. What is it? 181.
04-712 +++$+++ 29728 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 181, Your Honor. The prior one was 179. There was --
04-712 +++$+++ 29729 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And how about joint appendix 239 and 275, both of which say that Franzen was not a partner in any entity responsible for managing the apartments in question?
04-712 +++$+++ 29730 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that evidence was also in the record. The Fourth Circuit was not comfortable that Mr. Franzen was being entirely candid by not identifying which partnerships, in fact, he was involved in. And I would note, Your Honor, that this paragraph does not identify any entity that actually managed the apartment building.
04-712 +++$+++ 29731 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, Mr. Joseph, I --
04-712 +++$+++ 29732 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-712 +++$+++ 29733 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I thought we had to decide whether an unnamed private party should be considered for jurisdictional purposes.
04-712 +++$+++ 29734 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-712 +++$+++ 29735 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And do you have any case supporting that proposition?
04-712 +++$+++ 29736 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. I'd cite two cases, in particular, for a real-party-to-the-controversy defendant, where his citizenship is disregarded, even though he's named: Barney versus City of Baltimore, 73 U.S. 580, and Little against Giles, 118 U.S. 596.
04-712 +++$+++ 29737 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the -- it sounds to me -- if I understood your answer correctly, you're talking about cases in which the named party citizenship is disregarded.
04-712 +++$+++ 29738 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, Your Honor.
04-712 +++$+++ 29739 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where the question is, Should an unnamed party citizenship "be" regarded?
04-712 +++$+++ 29740 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Your Honor. And that is the issue that we find in the Fourth Circuit. The Fourth Circuit found that Lincoln Property Company was a nominal defendant.
04-712 +++$+++ 29741 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then there's no defendant.
04-712 +++$+++ 29742 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, they defended the case. And we'd submit that, on the basis of Barney and Little, that what one does -- on the basis of the State Highway Commission case, when you have someone who is serving as a surrogate for another, you look to the jurisdictional characteristics of the other; otherwise, he can, by coming in to defend, obtain a Federal forum to which he is otherwise not entitled.
04-712 +++$+++ 29743 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, but he didn't come in to defend; you pulled him in to defend.
04-712 +++$+++ 29744 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It --
04-712 +++$+++ 29745 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the problem that I have with your position is, I don't know of anything in the record that indicates that he wasn't ready to defend, that he wouldn't have -- or it wasn't ready to defend, that it wouldn't have paid the judgment, that you could have -- could not have gotten, from the party you named, all the relief that you were asking for.
04-712 +++$+++ 29746 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, it was definitely a party to the controversy. We believe that the point of the "real party to the controversy" doctrine is that every party doesn't fall in that category, and that is what the focus --
04-712 +++$+++ 29747 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. But so far as the Fourth Circuit -- tell me if I'm wrong here -- it sounds to me that the Fourth Circuit took the following position, that for purposes of determining diversity, it is not enough to name a principal who may be liable for the acts of subsidiaries, without naming the subsidiary, or, if you name a -- I'm mixing up principal and corporation --
04-712 +++$+++ 29748 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Understood.
04-712 +++$+++ 29749 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- principal and -- corporate parent and subsidiary, or principal and business agent. And I don't know of any rule to the effect that, for diversity purposes, a plaintiff simply cannot choose to sue the parent, or to sue the principal.
04-712 +++$+++ 29750 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the facts, as you've stated them, I believe, are not the facts in this record.
04-712 +++$+++ 29751 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Where would I be wrong?
04-712 +++$+++ 29752 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And let me explain. It's certainly true that Lincoln identifies, at page 96 of the cert petition appendix, a chart of entities that are salient. The most notable omission from the chart is the relationship of any of those entities to Lincoln. There is no evidence as to what -- how attenuated that was or what the relationship is, what indemnities existed, or whether Lincoln actually had an interest in this outcome. They now rely on an agency theory. That isn't how the case was defended.
04-712 +++$+++ 29753 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you named Lincoln as the defendant. And I'm looking at your second amended complaint, which says, "Lincoln," on information and belief, "is a corporation with its headquarters in Dallas, and it is the developer and manager of the property." That's what you alleged in your complaint. You allege that Lincoln was the manager -- Lincoln, whose Texas corporation was the manager of the property in question. Now, would you -- you're saying that that was wrong, and you should have sued somebody else, and the Court should cure that for you? That's -- it's really bizarre.
04-712 +++$+++ 29754 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, let me try to make it less bizarre, Your Honor. What we're saying is, for example, if I had a dispute with John Smith, the son, who's not diverse, but I accidentally sue John Smith, the father, who is diverse, and he comes in -- - he removes, and he comes in to defend, on the merits, that he is not a real party to that controversy, and that his citizenship, under the opinions of this Court, would be measured by that of the son to determine whether or not a Federal forum is appropriate --
04-712 +++$+++ 29755 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He's a real party if you sued him.
04-712 +++$+++ 29756 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
04-712 +++$+++ 29757 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Just because you're going to lose doesn't mean that he's not a real party.
04-712 +++$+++ 29758 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's one thing --
04-712 +++$+++ 29759 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems to me anybody you sue is a real party.
04-712 +++$+++ 29760 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that cannot be the case, or the "real party to the controversy" case means that every defendant is a real party. And it's true, in this sense, that --
04-712 +++$+++ 29761 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they -- let me stop you on that "real party," because, as has been pointed out, the "real party in interest" concept, as a procedural matter, comes out of rule 17, and it's talking about plaintiffs, that suits have to be brought in the name of the real party so that the defendant isn't in a situation where he's sued one day by plaintiff A, and is not home free when plaintiff B comes in with the identical complaint. So, it was originally designed with, Who is the proper party, the assignee or the assignor? That's what real party -- that's what the concept is familiarly about. Who is the proper plaintiff, not defendant?
04-712 +++$+++ 29762 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, it's certainly true that rule 17 only deals with plaintiffs. But in the cases we've cited, including two I just cited today, it applies to defendants, as well, because rule 17 doesn't confine the limits. In Navarro, the Court said that it articulates the same principles, but it's not completely congruent with the "real party to the controversy" test.
04-712 +++$+++ 29763 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Rule 17 is about joinder of parties; it's not about jurisdiction.
04-712 +++$+++ 29764 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly right. And we're talking about the jurisdiction of the court under the "real party to the controversy" test.
04-712 +++$+++ 29765 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, that's -- it's something different. It's a -- it's a whole other animal, because "real party in interest," as used in the Federal rules, is a device -- is a joinder device, is in the joinder rules. Now you're saying, "Ah, but there's some other real-party concept out there that has to do with jurisdiction."
04-712 +++$+++ 29766 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. And I believe the Court's opinion, in Carden, identified "real party to the controversy" doctrine in a recent example. I believe it was mentioned again in the Grupo Dataflux opinion. The concept is that the real parties to the controversy must be before the court. And to respond to Justice Scalia's --
04-712 +++$+++ 29767 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought Carden was about: In a partnership, does every partner's citizenship count?
04-712 +++$+++ 29768 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. And in -- it identified --
04-712 +++$+++ 29769 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There wasn't any question that -- that it was the right or the -- that the defendant was a wrong defendant or that --
04-712 +++$+++ 29770 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The language I'm referring to, in Carden, was in distinguishing the dissenting opinion, in saying that if, in fact, the question were, Which of the parties before the court should be considered, for jurisdictional purposes? it would be the real parties to the controversy.
04-712 +++$+++ 29771 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But to get the real parties before the court, you have to sue them.
04-712 +++$+++ 29772 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-712 +++$+++ 29773 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And, apparently, you didn't sue the right people until you replied to me. Then I took your argument, because it seemed like seven arguments, mixed up, and I took that argument to be the following. I'm -- I, the plaintiff, sued a defendant, who is called the Lincoln Property Company. Now, I grant you, there is some evidence that that defendant, the one I sued, is a Texas corporation. One, they showed us the certificate of incorporation, or they got a sworn statement. Two, in my complaint, I said that's what he was. However, there is some evidence the other way. On page 179 and 181, we have a person named Mr. Franzen who says, "I am the senior president, vice president, partner for defendant Lincoln Property Company," in which case, if that's your argument, you're telling us -- is that your argument, that there is some evidence the real defendant, whom I sued, is not a corporation, despite the apparent evidence to the contrary?
04-712 +++$+++ 29774 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
04-712 +++$+++ 29775 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Rather, it is a partner, and Mr. Franzen is a partner in it. Is that your argument?
04-712 +++$+++ 29776 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We did argue, and we do argue, that the Fourth Circuit could reasonably conclude, on burden-of-proof grounds, that it was not satisfied that the Texas corporation was a corporate entity. But the argument that I've been using --
04-712 +++$+++ 29777 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you want to make that argument here, or are you going to give up on that argument?
04-712 +++$+++ 29778 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we're not abandoning the argument, only because if you look at the corporate entity, itself, from the joint appendix, 243, it began as Lincoln Property number one. If we then look at the yellow brief, in the addendum, we have thousands of Lincoln entities. We have no doubt there is a corporation that is a Texas entity. Now, our argument today is that that entity could not step in the shoes of another potentially non-diverse entity without at least identifying who the -- what the jurisdictional characteristics of that entity were. Agency was not argued. Agency was not argued below. Lincoln said it was the manager. The district court found, in three opinions, Lincoln was the manager. The plaintiffs thought they were suing the entity managing the premises. Lincoln was not that entity. It had abandoned that business.
04-712 +++$+++ 29779 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if they said they were, then it seems to me -- why don't you just hold them to it?
04-712 +++$+++ 29780 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, it was not the plaintiff's choice.
04-712 +++$+++ 29781 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, it seems very odd that they -- they say, "We were," and you say, "Oh, no, you weren't." [Laughter.]
04-712 +++$+++ 29782 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
04-712 +++$+++ 29783 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ "We shouldn't have sued you." Why don't you just take them at their word and sue them?
04-712 +++$+++ 29784 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There were significant tactical advantages to Lincoln, whatever its relationship with these entities, in being in Federal court. The plaintiff preferred a State-court venue where there was no Daubert and there was no summary judgment permissible on the basis of affidavits and deposition testimony.
04-712 +++$+++ 29785 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it isn't up to the court of appeals to make some kind of roving inquiry of who would have been a better defendant. It just seems to me the Fourth Circuit rule is totally unworkable and unprecedented. I don't see how you can possibly overcome that, because the plaintiff is the master of its complaint, and it can decide who to sue. And Lincoln was sued as a corporation, and I don't see what business it is of a court to say, "Oh, it should have been somebody else."
04-712 +++$+++ 29786 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me attempt to articulate a proposition, Your Honor, and that is that when jurisdiction is challenged, the party asserting jurisdiction, seeking the Federal forum, has to defend it by proving diversity of citizenship, and that means when its "real party to the controversy" status is challenged, it has to adduce sufficient evidence that it is, indeed, the real party to the controversy.
04-712 +++$+++ 29787 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you can move, as a party to the case, to dismiss somebody who's sued for some reason, but that isn't what happened here.
04-712 +++$+++ 29788 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is not what happened here. And I would submit to you it is not what happened here, because of a lack of candor on the part of the defendant. Ordinarily, one would expect the defendant to say, "Not me." In fact, this defendant proceeded to litigate --
04-712 +++$+++ 29789 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what if they did? Suppose they did say, "Not me," and you proceeded with your lawsuit.
04-712 +++$+++ 29790 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They'd --
04-712 +++$+++ 29791 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay? What would happen?
04-712 +++$+++ 29792 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your --
04-712 +++$+++ 29793 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They would win the judgment. Would they be the real party in that controversy?
04-712 +++$+++ 29794 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that --
04-712 +++$+++ 29795 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course they would be. Because you sued them. Even if they're innocent -- are you saying all innocent parties are not parties to the controversy?
04-712 +++$+++ 29796 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ By no means --
04-712 +++$+++ 29797 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't think so.
04-712 +++$+++ 29798 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Your Honor. And that was -- that was a part of your first question, which I want to respond to. Anybody who is a non-real party to the controversy finds jurisdiction in the Federal court to be able to establish that it is not the party. But when it defends, by standing in the shoes as a surrogate for another in order to obtain a Federal forum, the jurisdictional characteristics of that party are not germane. It is the jurisdictional characteristics of the party in whose shoes it stands.
04-712 +++$+++ 29799 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But we don't know --
04-712 +++$+++ 29800 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is --
04-712 +++$+++ 29801 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- who that party is. Let's go back to your -- when you started this case, you said that you would, on discovery -- this is what you said in -- at the time of your initial complaint -- determine if there is an additional defendant, or defendants, who should be named as parties. What discovery did you pursue to find out if there was an additional defendant, or defendants, who should be named as parties?
04-712 +++$+++ 29802 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Interrogatory number 3 in the Fourth Circuit supplemental appendix, at page 35, inquires about any person, which is defined to include any corporate affiliate, that has any knowledge of the tenancy of the plaintiffs. The objections are not in the record. Again, this issue came up in the yellow brief, but they did not reply to that.
04-712 +++$+++ 29803 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Has any knowledge of --
04-712 +++$+++ 29804 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Documents --
04-712 +++$+++ 29805 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the what of --
04-712 +++$+++ 29806 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of the tenancy of the --
04-712 +++$+++ 29807 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh.
04-712 +++$+++ 29808 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- lease relationship of the Roches in the Westfield Village Apartment --
04-712 +++$+++ 29809 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Joseph, can I ask you to go back to the beginning for a second?
04-712 +++$+++ 29810 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, sir.
04-712 +++$+++ 29811 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They filed a reply brief. There are a lot of disputes about the facts. Do you concede that the Lincoln Property Company that you sued is a Texas corporation?
04-712 +++$+++ 29812 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we acknowledge there is a Texas corporation. We sued the Texas --
04-712 +++$+++ 29813 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you acknowledge that the corporation that you sued, Lincoln Property Company, is a Texas corporation?
04-712 +++$+++ 29814 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we do not, in the sense that we accept the Fourth Circuit's determination that the burden of proof to clarify that entity's status, and the germane entity status --
04-712 +++$+++ 29815 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I understood them to be arguing, in essence, that there's some other entity that really is the real party in interest.
04-712 +++$+++ 29816 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct, Your Honor.
04-712 +++$+++ 29817 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you dispute, as a matter of fact, that Lincoln Property Company is a Texas corporation?
04-712 +++$+++ 29818 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, what we say is that the Fourth Circuit found that there was insufficient --
04-712 +++$+++ 29819 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm asking you a --
04-712 +++$+++ 29820 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- proof of that point.
04-712 +++$+++ 29821 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- very simple "yes" or "no" question.
04-712 +++$+++ 29822 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we do not -- we do not walk away from the Fourth Circuit's conclusion, so we -- we know there is a Texas corporation. We don't know that that is --
04-712 +++$+++ 29823 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is this corporation a Texas corporation? The one you sued.
04-712 +++$+++ 29824 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We so alleged, and they said yes. So --
04-712 +++$+++ 29825 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, you say yes, it is.
04-712 +++$+++ 29826 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is. But whether or not that is the entity, we can't be sure of, because --
04-712 +++$+++ 29827 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I'd like the -- these are very expensive, this litigation. You're all the way in the Supreme Court. It's costing people a lot of money. And if there is a legal issue here, I'd like to find out what it is. I have exactly the same question Justice Stevens had, which is where I started. Do you agree that the company you sued, called Lincoln Property, is a Texas corporation, yes or no?
04-712 +++$+++ 29828 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, we'll --
04-712 +++$+++ 29829 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right.
04-712 +++$+++ 29830 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- acknowledge that for this argument.
04-712 +++$+++ 29831 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then that's out -- fine, that's out of the case. The next question is -- of course you could sue a real company, called Lincoln Property or Jolly Fisherman, and it could turn out that that real company is a front, that it has no real existence, its -- all its papers and everything to do with it is signed by a totally separate corporation. Are you saying that's what happened here? And if that's what happened here, which is the real corporation and people in interest?
04-712 +++$+++ 29832 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is -- the burden-of-proof failure that the Fourth Circuit found was that we could not --
04-712 +++$+++ 29833 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not talking about burden-of-proof failure.
04-712 +++$+++ 29834 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't --
04-712 +++$+++ 29835 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm asking you, Who is the real corporation or person in interest that Lincoln Property is a kind of sham or front for?
04-712 +++$+++ 29836 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do not have the answer to that question. And that was the Fourth Circuit's conclusion. We know that EQR is a part of that. And that's why -- they put in an affidavit that said that EQR was the only affiliate of Lincoln involved in the management --
04-712 +++$+++ 29837 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Then you think --
04-712 +++$+++ 29838 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and that's why we --
04-712 +++$+++ 29839 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm getting there. I'm not arguing with you. I'm getting there. Then you think that whoever it is that they are the front for has -- is a Virginia resident. Is that what you think?
04-712 +++$+++ 29840 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What we think, Your Honor, is that they did not prove that that was not the case, and the burden of proof to sustain jurisdiction was theirs.
04-712 +++$+++ 29841 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Might be a Virginia resident.
04-712 +++$+++ 29842 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. We don't know --
04-712 +++$+++ 29843 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Might be.
04-712 +++$+++ 29844 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- who it is.
04-712 +++$+++ 29845 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You think there is a real party there that might be a Virginia resident. And do you have any idea whatsoever of what that real party is called?
04-712 +++$+++ 29846 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do not, Your Honor.
04-712 +++$+++ 29847 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what's the evidence that there is a Virginia resident, in there?
04-712 +++$+++ 29848 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is the burden-of-proof failure that the Fourth Circuit found. But the Real Estate Roundtable brief, at page 11, identifies the fact that it's very common to have a special-purpose entity that is property-specific, which gives further rise to that inference. But it is a failure of a burden of proof that was ultimately found by the Fourth Circuit. And because of the failure of the burden of proof, we're not in a position to identify the party. Had --
04-712 +++$+++ 29849 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the failure of the burden of proof is apparently a function of the Fourth Circuit's assumption that if you sue the parent, you have a duty to negate the possibility of suing any subsidiary; or if you sue the principal, you have an obligation to negate the possibility of suing any agent. And I don't see where that comes, except out of the sky somewhere.
04-712 +++$+++ 29850 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, I believe, in fairness to the Fourth Circuit, on page 16(a) of the petition appendix, they said that they found Lincoln to be a nominal defendant, not a real party to the controversy. In that case, the relevance of the subsidiary or other entity was to determine the jurisdictional characteristics. And that is the reason why the Fourth Circuit found a failure of the burden of proof, because they could not identify, at the time of that hearing, who was the appropriate subsidiary and what the jurisdictional characteristics were.
04-712 +++$+++ 29851 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, everything turned on the nominal-party finding.
04-712 +++$+++ 29852 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-712 +++$+++ 29853 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On the nominal-party assumption.
04-712 +++$+++ 29854 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. There's no dispute that if Lincoln were a real party to the controversy, they don't have to join every other real party to the controversy.
04-712 +++$+++ 29855 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if the Fourth Circuit is wrong on nominal party, that's the end of the case for your side.
04-712 +++$+++ 29856 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not quite, Your Honor, because there's still the burden-of-proof issue.
04-712 +++$+++ 29857 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but the burden-of-proof issue, as you've just answered my question, does not arise until the Fourth Circuit finds that Lincoln is a nominal party. And if, in fact, that conclusion is incorrect, then there's no burden-of-proof issue that has -- or no burden of proof that has not been satisfied.
04-712 +++$+++ 29858 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct only if Your Honor makes that determination based on matters that were before the Fourth Circuit. There are a series of affidavits they rely on that were submitted after the Fourth Circuit's determination which may affect the determination as to whether or not Lincoln is a real party to the controversy. Specifically, in the blue brief, in footnote 9, and in the yellow brief, in footnote 15, they've adduced additional evidence. The Fourth Circuit was ruling at a point in time as to what the burden of proof was.
04-712 +++$+++ 29859 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Joseph, do I take it that the essence of your position is that a removing defendant, if that removing party is a corporation, must disclose all affiliates that may have been involved in the -- in the occurrence that the plaintiff might have, but failed, to name as a defendant, that a defendant -- although, on the surface, there's complete diversity, a defendant corporation must, in order to remove, identify all subsidiaries and affiliates who might have been sued, as well?
04-712 +++$+++ 29860 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, that's not our position. And the reason that's not our position is that, at the time of removal, every defendant that is, on the face of the complaint, diverse has the ability to remove in order to defend on the grounds that it is innocent -- the innocence grounds. But if it then steps, instead, to defend the merits on behalf of another in order to invoke a Federal forum -- instead of saying, "Not me," which it could have done, but did not do -- had it said, "Not me," then the plaintiff would have known that it should be looking at other entities. In fact, it said nothing of the sort.
04-712 +++$+++ 29861 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But defendant never took the position, "Not me."
04-712 +++$+++ 29862 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is the --
04-712 +++$+++ 29863 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Defendant said --
04-712 +++$+++ 29864 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- entire issue.
04-712 +++$+++ 29865 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "Yes, we are the responsible party."
04-712 +++$+++ 29866 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that is correct. And they clearly were a party to the controversy. But if they were not the real party to the controversy, they managed, perhaps, to acquire a Federal forum by virtue of stepping into the shoes of the subsidiaries. And that is the argument, that if they are not the real party to the controversy because they're litigating the merits on behalf of another, it's the jurisdictional characteristics of the other that are germane, and that's the burden-of-proof failure. The "real party to the controversy" doctrine is not a new doctrine to this Court. It goes back to at least 1809, Brown against Strode. I mean, the -- it is a fundamental doctrine. And as Justice Ginsburg pointed out, it goes back as far, perhaps, as 1789, to the assignee clause in the Judiciary Act, in section --
04-712 +++$+++ 29867 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but I also --
04-712 +++$+++ 29868 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask --
04-712 +++$+++ 29869 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- pointed out it's --
04-712 +++$+++ 29870 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- this question? Did you engage in discovery trying to determine who the real party in interest was?
04-712 +++$+++ 29871 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Trial -- I wasn't trial counsel, Your Honor. Trial counsel did, in the Fourth Circuit supplemental appendix, at pages 35 to 38, make inquiries.
04-712 +++$+++ 29872 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, did he -- did he do a thorough job of trying to find out who the real party in interest --
04-712 +++$+++ 29873 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, and -- they did not -- and I --
04-712 +++$+++ 29874 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wouldn't it be his burden, if he thought it was the wrong person?
04-712 +++$+++ 29875 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, he didn't think it was the wrong person. He was being told it was the right person, and shouldn't be faulted for lack of diligence in accepting the representations that they had the right person.
04-712 +++$+++ 29876 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, but if you accept the representation, then they sued the right people.
04-712 +++$+++ 29877 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Your Honor, it only turned out at the end that, in fact, that was not correct. And these matters snuck in through discovery, in the course of --
04-712 +++$+++ 29878 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It would seem to me --
04-712 +++$+++ 29879 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- discovery that was a merits discovery.
04-712 +++$+++ 29880 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- if there was a dispute about this, it ought to -- there ought to have been extensive discovery before you got to the court of appeals.
04-712 +++$+++ 29881 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, there was -- there were discovery requests served. There was not discovery forthcoming on the issue of affiliates.
04-712 +++$+++ 29882 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you had no -- - I mean, you had no real reason to do it. You had somebody there who accepted responsibility, in the sense that they were willing to defend on the merits, right?
04-712 +++$+++ 29883 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Mr. Chief Justice, which is the reason --
04-712 +++$+++ 29884 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it's only because you lost that you now question whether or not they should have accepted -- you're saying they shouldn't have accepted responsibility, and shouldn't have defended on the merits.
04-712 +++$+++ 29885 +++$+++ TRUE +++$+++ MR. JOSEPH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is no doubt, Your Honor, this is a Hail Mary pass, because the court had made clear what its decision was going to be. But Hail Mary passes connect. And the question is whether or not a real party to the controversy was, in fact, litigating. And we believe that it was not. And that -- we basically come to the argument that limited jurisdiction means the limits must be respected. "Real party to the controversy" doctrine is an established limit. There are federalism issues involved, and we submit that the fourth circuit's judgments should be affirmed, because we did not have the real party to the controversy. Thank you very much, Your Honors.
04-712 +++$+++ 29886 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Joseph. Mr. Frederick, you have nine minutes remaining.
04-712 +++$+++ 29888 +++$+++ FALSE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would waive, but for the clarification of two points in the record. Number one, we take umbrage at being accused of a lack of candor in this Court. Paragraph 22 of their complaint says, and I'll quote, "All the defendants, acting through Lincoln and/or their obligations as owners of the property through the lease and acting by and through their agents, were responsible for one or more acts of common law and/or statutory negligent conduct with respect to Roche's apartment, including, but not limited to," a long laundry list. When the parent is sued for the acts of its agents, and the parent comes forward and says, "We will accept the responsibility for our agents," there's no cause to be accused of a lack of candor simply because there's no effort later to identify who those agents are.
04-712 +++$+++ 29889 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I guess what he's saying -- I'm trying to put the -- as good a light on it as I can -- it's a -- that if, in fact -- if a big real-estate developer, which is a corporation -- what they do is, they organize a lot of deals, and their deals would take the form of hundreds and hundreds of limited partnerships, which are owned buildings in various States. And I think he's saying, "Well, for diversity purposes, we should consider the citizenship of the parent corporation to be the citizenship of the limited partnership that happens to have control of the building that we're complaining about."
04-712 +++$+++ 29890 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And Lincoln had control. It was acting through agents. That's undisputed. But the lease says Lincoln Property Company is the party, as agent, for the owner, SWIB. Lincoln Property Company set the policies for the mold. Lincoln Property Company hired Mr. Roche as an employee. Lincoln Property Company directed the actions of all of the people involved in this. And so, there's not -- there's not any basis on which Lincoln Property could come -- Company could say, "We are not responsible." And when this was --
04-712 +++$+++ 29891 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, he thinks --
04-712 +++$+++ 29892 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- put to us --
04-712 +++$+++ 29893 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you are responsible, but he thinks you ought to have the citizenship of the intermediate entities that own, or manage directly, the building.
04-712 +++$+++ 29894 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There would be no authority from this Court to so hold. And there -- the interrogatory that he points to, interrogatory number 3, reads as follows, "Identify every person, other than your attorneys, who is aware of the facts and circumstances surrounding Mr. Roche's lease at Westfield Village Apartments and repeat in detail the substance of such person's knowledge." Now, from that interrogatory, we are supposed to infer that there are -- a question about the citizenship of the affiliated entities through which Lincoln is operating. We put forward all of the names of the people that we could identify who had some knowledge about this. But I would submit to you that a response, as he is suggesting here in this Court, is not a reasonable one. Finally, with respect to Mr. Franzen, the fact that his title may say "partner" surely cannot transform the corporation documents that say that Lincoln Property Company is a corporation in the State of Texas. Thank you.
04-712 +++$+++ 29895 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Frederick. The case is submitted.
04-721 +++$+++ 29900 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Evans versus Chavis. Ms. Chatman.
04-721 +++$+++ 29902 +++$+++ FALSE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The Ninth Circuit decision in the court below was wrong, for three reasons. It adopted a rule that frustrates Congress's intent to protect Federal Courts from hearing stale claims and to respect the finality of State Court convictions. It does so by improperly and arbitrarily adopting a conclusive presumption that misunderstands or ignores State law and practice. And it is inconsistent with this Court's decision in Carey versus Saffold. If the Federal Courts, on the other hand, complete their analysis of the Federal question of tolling the AEDPA statute of limitations by deciding whether a State petition was timely before granting tolling, it can properly dismiss more Federal petitions on statute-of-limitations grounds and can avoid litigating stale claims on the merits. Any difficulties in doing so can be ameliorated by the limited nature of the State-law inquiry and adoption of a 60-day presumption of timeliness.
04-721 +++$+++ 29903 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that's something -- where would we -- we would just pick that number, that --
04-721 +++$+++ 29904 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The 60 days?
04-721 +++$+++ 29905 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. Because that's a normal appeal period?
04-721 +++$+++ 29906 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Ginsburg, when California does look to timeliness in proceeding from one lower court to a higher court, then we see that it contemplates that a -- that a litigant will proceed in 60 days or less, because -- and the reason we have to turn to analogies is because nothing in California law requires the appellate courts in State habeas to look to that particular period of time between the lower court decision and proceeding to that court, because they're courts of original jurisdiction. So, they look at how long the prisoner proceeded from conviction to their court, as a whole. But the reason that we need to figure out this period is because this Court, in Carey versus Saffold, has said that our system functions enough like an appellate system to bring those periods into the tolling provision. So, when --
04-721 +++$+++ 29907 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, can't --
04-721 +++$+++ 29908 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- we look --
04-721 +++$+++ 29909 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the -- can't the California courts adopt a -- give us a 60-day rule, or a 30-day rule, or a 90-day rule? And if they don't do it, why should we do it?
04-721 +++$+++ 29910 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Up to this point, they have not done so. And I think that is because, as I said, they are looking at the time from conviction. How long did it take the prisoner to get to their court with their claims? And how -- and how long they take properly proceeding up the ladder through the courts is just one factor that they look at. And they --
04-721 +++$+++ 29911 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't know how this came about. I mean -- I mean, I'm asking both sides the same question. It'll sound very favorable to you, but if you answer it just yes, because it's favorable to you, I might learn, later, I was wrong, and you won't have had a chance to answer. So, I want your honest opinion on this. I don't know how this happened. And I don't know -- did you ask for en banc?
04-721 +++$+++ 29912 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, how the 3-year delay happened?
04-721 +++$+++ 29913 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. I don't know how the California Court could have read the opinion -- which, of course, I wrote for the Court, so maybe I am reading things into it that weren't there -- but I don't know how any judge could read that opinion we wrote and come to this conclusion. I thought that it said, you know, on -- that there are three issues -- what's the word "pending"? Does the word "pending" apply to the time period between when the lower court decides a case and you appeal? That's typically 20 days or 30 days.
04-721 +++$+++ 29914 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-721 +++$+++ 29915 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are those 20 days or 30 days counted in the tolling period? I thought part one clearly said the answer is yes. Then we looked at California, and they don't have the words "20 days" or "30 days." They say "reasonable time." And then we said, "Still applies, because 'reasonable time' is probably 20 or 30 days." They don't have a radically different rule; it's a similar rule. Then we come to part three, and it says, "This is 45 days." There's -- no 4 and a half months, wasn't it?
04-721 +++$+++ 29916 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Uh-huh.
04-721 +++$+++ 29917 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This isn't just 20 or 30 days.
04-721 +++$+++ 29918 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Uh-huh.
04-721 +++$+++ 29919 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, is it timely?
04-721 +++$+++ 29920 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Uh-huh.
04-721 +++$+++ 29921 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And, there, I thought the Court said -- I mean, I was reading it -- say, "Well, it's hard to say, because there might have been excuses for the delay." What about the words that were written there, "on the merits"?
04-721 +++$+++ 29922 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And there was an equitable- --
04-721 +++$+++ 29923 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ On --
04-721 +++$+++ 29924 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- -tolling question.
04-721 +++$+++ 29925 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that had nothing to --
04-721 +++$+++ 29926 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-721 +++$+++ 29927 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- do with the case. The lack of diligence had nothing to do with this aspect of the case. But, what about the words "on the merits"? And there, what I think the court wrote is that the fact that it says "on the merits" doesn't prove it -- what -- it doesn't prove that it was timely. Why? And then I listed a bunch of reasons. There are reasons. Sometimes courts say "on the merits," even though it's delayed. All right? They say "on the merits." Or because they want to tell the prisoner or -- there are a lot of reasons why, all of which are listed. So, we send it back to see whether this 4-and-a-half-month delay, given the excuses, was still timely. We -- all right?
04-721 +++$+++ 29928 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-721 +++$+++ 29929 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now --
04-721 +++$+++ 29930 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice --
04-721 +++$+++ 29931 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- we now get a case where it's 3 years.
04-721 +++$+++ 29932 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Uh-huh.
04-721 +++$+++ 29933 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the court says, "It's timely, because they used the word 'on the merits.'" But I thought -- I said, in the opinion, I thought the court adopted that the words "on the merits" do not decide the matter.
04-721 +++$+++ 29934 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't it --
04-721 +++$+++ 29935 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, what do you --
04-721 +++$+++ 29936 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- worse than that?
04-721 +++$+++ 29937 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- do in those circumstances?
04-721 +++$+++ 29938 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, I could not agree --
04-721 +++$+++ 29939 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but did --
04-721 +++$+++ 29940 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- with you more.
04-721 +++$+++ 29941 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you ask for rehearing en banc? Because any judge, including me, can make a mistake. What did you do?
04-721 +++$+++ 29942 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We petitioned for certiorari in this Court.
04-721 +++$+++ 29943 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you didn't ask for a hearing en banc.
04-721 +++$+++ 29944 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, we did not.
04-721 +++$+++ 29945 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why, when you --
04-721 +++$+++ 29946 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would --
04-721 +++$+++ 29947 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- get a fair -- because any judge can make a mistake --
04-721 +++$+++ 29948 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
04-721 +++$+++ 29949 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- why don't you just go and ask the Ninth Circuit to say, "Look, this is not -- read the opinion, read what they said. Correct it."
04-721 +++$+++ 29950 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This is not the first time that we have tried to take that approach with the Ninth Circuit on this issue. They -- on remand, in Saffold versus Carey, they made the same mistake, and the rehearing has got us nowhere -- asking for a rehearing. And so, we felt that in order to get this clarified as soon as possible, it seems futile to ask for rehearing when on the -- when we had not been successful before.
04-721 +++$+++ 29951 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. Well this --
04-721 +++$+++ 29952 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This is, by the way --
04-721 +++$+++ 29953 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- this case is different, actually, from the one that Justice Breyer put, because, in this case, the California Supreme Court didn't say --
04-721 +++$+++ 29954 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Uh-huh.
04-721 +++$+++ 29955 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- "on the merits." It said nothing at all. It just disposed of it. So, the question presented is quite different.
04-721 +++$+++ 29956 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's worse.
04-721 +++$+++ 29957 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's whether -- not whether it can be, nonetheless, timely when they say "on the merits," but whether it can be, nonetheless, timely when they don't say anything at all.
04-721 +++$+++ 29958 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
04-721 +++$+++ 29959 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I would think it's an a fortiori case, in other words.
04-721 +++$+++ 29960 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the Ninth Circuit is treating it as if it were the same sort of decision that was before this Court in Carey versus Saffold. It is a decision on the merits. And they are reading that as excluding any other possible grounds that might have existed for the denial in that case.
04-721 +++$+++ 29961 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're representing the attorney general of California, and you have a lot of litigation in the Ninth Circuit. It's -- I mean, the other side's going to answer on the merits, if they can. And they're in an awkward position here, I understand. But I need to know what to -- what do you think we should do? I mean, here, we write an opinion, and they --
04-721 +++$+++ 29962 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Uh-huh.
04-721 +++$+++ 29963 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- it seems to perhaps, inadvertently or not -- and the reason I turn to you is, judges are busy, they have huge dockets --
04-721 +++$+++ 29964 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-721 +++$+++ 29965 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And, often, unless it's very clearly pointed out by the lawyers, or the lawyers take action, you get -- waste everybody's time and money.
04-721 +++$+++ 29966 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Uh-huh. Well, I think the answer is to instruct the Federal Courts that, when they're undertaking this inquiry of whether an application is pending during the intervals, a Federal question that has a State-law component, then they must apply the State law to figure out if it's timely. And, you know, as this Court said in Carey the -- versus Saffold -- it's a matter of whether it's timely; it's not a matter of the basis of the State Court decision. And in the context of California, I think the answer is to adopt a presumption of 60 days, because that is the most analogous --
04-721 +++$+++ 29967 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In -- even if, as he alleged, he was unable to do anything in --
04-721 +++$+++ 29968 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Uh-huh.
04-721 +++$+++ 29969 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This is a layperson. He said, "I tripped in the intermediate appellate court, because I didn't do any research. And so, I wanted to do better, but they gave me a job where, during the hours that the library was open" --
04-721 +++$+++ 29970 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Uh-huh.
04-721 +++$+++ 29971 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- "I had to be at work. And that's why it took me all this time."
04-721 +++$+++ 29972 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Uh-huh.
04-721 +++$+++ 29973 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, is that -- suppose the prison locks down someone and says, "You can't go to the library."
04-721 +++$+++ 29974 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This is an easy decision for the Federal Court, even on these facts. Okay, this Petitioner has taken longer than 60 days, and he's offered an explanation. But if you look at his explanation, on its face, it's completely inadequate to account for a 3-year delay, because he doesn't take action to get -- to get library access for an entire year after the Court of Appeals decision denying his application is issued. Then he spends 3 months, quite correctly, going through the administrative procedures of the prison to get a job change. And he does, in fact, get a job change 3 months later -- about 3 months later. Then, he waits still more than another year before he files his petition in the California Supreme Court presenting essentially the same claims, same facts, same law.
04-721 +++$+++ 29975 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, in other words, he delays, after he gets the library access, for an extra year.
04-721 +++$+++ 29976 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, he does. Now, he --
04-721 +++$+++ 29977 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, is there any excuse they're making for that? Because if you don't tell me, they're --
04-721 +++$+++ 29978 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Later on --
04-721 +++$+++ 29979 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- going to tell me.
04-721 +++$+++ 29980 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- later on, once he gets to Federal Court --
04-721 +++$+++ 29981 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-721 +++$+++ 29982 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- he offers the explanation that the prison was on lockdowns. There are several problems with that assertion; the first being, it wasn't presented to the State Court, so it's -- it cannot cure his State untimeliness. The second being that he doesn't offer specific dates or explain how it prevented him from filing his petition. And the third problem is that State prisons provide procedures during lockdowns to get library materials to prisoners.
04-721 +++$+++ 29983 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can I ask a rather probably sort of stupid question? But I gather there are a large number of these cases disposed of by a postcard. Would there be anything wrong if the California Supreme Court said, "We're going to have two postcards. One says that 'the delay was unreasonable, denied'; and the other said, 'there's nothing to the merits, denied'" -- you use two postcards -- wouldn't that solve all the problems?
04-721 +++$+++ 29984 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The problem with that is -- certainly, it would solve things, but the problem with that is, it would require the -- require the California courts to make both of those determinations in every case. And, as it is now, they use a procedure much like --
04-721 +++$+++ 29985 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But they could adopt a 60-day rule, or a 90-day rule, and then just, when they decided to not follow the rule, they'd put a check on -- - say, "Well, we did look at the merits in this case."
04-721 +++$+++ 29986 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They could do that --
04-721 +++$+++ 29987 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Under our current law, it wouldn't make any difference, would it? Because even if they sent the "on the merits" postcard, Carey versus Saffold says --
04-721 +++$+++ 29988 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-721 +++$+++ 29989 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- it doesn't matter.
04-721 +++$+++ 29990 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true. And that is why I say they would have to make both determinations, because --
04-721 +++$+++ 29991 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, may --
04-721 +++$+++ 29992 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it might --
04-721 +++$+++ 29993 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- may I -- no, go ahead.
04-721 +++$+++ 29994 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I was just going to say, it might matter if they had another postcard that said it's untimely, and they didn't send that. That would be a whole different situation, right?
04-721 +++$+++ 29995 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, but we are -- we are engaging here in trying to tell the California State Courts how to dispose of these cases, which I am really not sure is an appropriate thing for us to do. They're --
04-721 +++$+++ 29996 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but --
04-721 +++$+++ 29997 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- using a --
04-721 +++$+++ 29998 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- if we --
04-721 +++$+++ 29999 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- procedure --
04-721 +++$+++ 30000 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- if we decided it -- it was at least appropriate to give a hint, aren't we in a little bit better position than you suggested, in the light of Carey? Because in -- is -- correct me if I'm wrong, but I thought, in Carey, the State order was not merely that it was on the merits, but that it was on the merits and it was untimely. In other words, it said A and B. And we said, you know, "That's ambiguous," to start with, and then we went on and said, "You know, sometimes 'merits' don't mean merits." But if the State were to revise its procedure and say, "We're either going to say A or we're going to say B, and that's our reason," and they said, "It's on the merits" or "it's untimely," wouldn't it make sense for us, even in the light of Carey, to say, "Okay, we'll accept that as the -- as the State's reason"?
04-721 +++$+++ 30001 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If they were to do that. But I don't anticipate the State Courts adopting that practice, because it would double their work. They would have to make both decisions, merits and untimeliness.
04-721 +++$+++ 30002 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't --
04-721 +++$+++ 30003 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It --
04-721 +++$+++ 30004 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- see why. If they're going to follow something like a prima facie 60-day rule, and it's -- it's on day 65, all they've got to say is, "It's untimely."
04-721 +++$+++ 30005 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, in this --
04-721 +++$+++ 30006 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the --
04-721 +++$+++ 30007 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in this case, in order to determine it was untimely, they would have presumably had to have gone into the factual analysis of whether the prison was on lockdown, whether he delayed for a year after getting the materials, and all of that stuff. So, it's a lot easier for them, when the merits of it seem to them absolutely clear, to simply deny it on the merits and not reach the "timely" question.
04-721 +++$+++ 30008 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that --
04-721 +++$+++ 30009 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the "timely" question is still before Federal Courts. That's what we said in Carey versus Saffold. So --
04-721 +++$+++ 30010 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree. And they --
04-721 +++$+++ 30011 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- although they can avoid it, we can't.
04-721 +++$+++ 30012 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that -- and that is the way the State Courts are approaching these cases. They, for the most part, will look first for a prima facie case, and in -- much like the Federal Courts do in Federal habeas under Rule 4, where they scream for frivolous petitions that can be dismissed outright without asking for a response from the warden or instituting briefing, then they can deny those summarily. And the reason why they cannot just decide timeliness is because then the Ninth Circuit will interpret that as not reaching the merits, and we will have a problem of deference. So, if they were to decide one explicitly, they'd have to decide the other, the way things stand now. And I --
04-721 +++$+++ 30013 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I --
04-721 +++$+++ 30014 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- as a --
04-721 +++$+++ 30015 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I must say, I don't quite follow the -- why couldn't they simply say it's untimely? Wouldn't that -- that it -- there was -- it was not pending during this period, because it -- 3 years elapsed, and that's unreasonable. Wouldn't that end the case?
04-721 +++$+++ 30016 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would, but it's not a State-law question. They don't -- whether it's pending during that period is not a --
04-721 +++$+++ 30017 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, I understand --
04-721 +++$+++ 30018 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- State law --
04-721 +++$+++ 30019 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- but whether --
04-721 +++$+++ 30020 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- question, because --
04-721 +++$+++ 30021 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- it was a reasonable time to file is a State-law question.
04-721 +++$+++ 30022 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Whether he took a reasonable time from the lower -- from time of conviction to their court is the only State-law question --
04-721 +++$+++ 30023 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, isn't the --
04-721 +++$+++ 30024 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- because of the --
04-721 +++$+++ 30025 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Doesn't the --
04-721 +++$+++ 30026 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- original --
04-721 +++$+++ 30027 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- California Supreme Court sometimes decide that the time between the intermediate court's decision and the filing in the California Supreme Court -- don't they ask whether that was reasonable?
04-721 +++$+++ 30028 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I have --
04-721 +++$+++ 30029 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or they only relate it back to the day of the conviction?
04-721 +++$+++ 30030 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I have only seen one case in California where they specifically addressed that particular interval because the Attorney General raised it, and that's Moss -- In Re Moss, which is cited in the red brief.
04-721 +++$+++ 30031 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask that, if you had a case in which the Attorney General raised the -- say, this case, and yet -- and say California Supreme Court wrote an opinion in which it said, "Now, 3 years has gone by, but the prisoner has given us a very elaborate explanation," as Justice Ginsburg suggested, "and we find that explanation sufficient; therefore, we conclude that, even though it was 3 years, it was a reasonable time; and, therefore, we're going to address the merits. And we now address the merits and say you lose." Now, in that case, would it be pending, for our purposes?
04-721 +++$+++ 30032 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, because the State Court found it timely, and that would be --
04-721 +++$+++ 30033 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It would? I thought --
04-721 +++$+++ 30034 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that would be --
04-721 +++$+++ 30035 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that was --
04-721 +++$+++ 30036 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the end of --
04-721 +++$+++ 30037 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- an open --
04-721 +++$+++ 30038 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the matter.
04-721 +++$+++ 30039 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- question, frankly. I mean, I can't imagine California would do this, but I guess if California did say that, "The period of time between the time you lost in the District Court and the time you filed, in every other State, is 30 days, but, in California, it's a reasonable time. And what we mean by a 'reasonable time' is 3 years, without any excuses" -- I guess, then, maybe the dissent in Carey v. Saffold would have been right in respect to that.
04-721 +++$+++ 30040 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If --
04-721 +++$+++ 30041 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It would have said that that isn't pending under Federal law, whether California says it or not. So, the role of the Federal law versus the State law, I thought we left open.
04-721 +++$+++ 30042 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think this Court, in Carey versus Saffold, and in Pace versus DiGuglielmo, has stressed the importance of deferring to State-law determinations --
04-721 +++$+++ 30043 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you can't --
04-721 +++$+++ 30044 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- State Court --
04-721 +++$+++ 30045 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- defer to something --
04-721 +++$+++ 30046 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- determinations.
04-721 +++$+++ 30047 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- under this statute, where Congress wrote the word "pending." And I wouldn't have thought they did have in mind a --
04-721 +++$+++ 30048 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Uh-huh.
04-721 +++$+++ 30049 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- State that says, "It's pending, even though you have no excuse and didn't file anything for 3 years, your appeal." Now, I haven't heard that fully briefed and so forth, so I hesitate to express a final conclusion on it. But it --
04-721 +++$+++ 30050 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's --
04-721 +++$+++ 30051 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- since it's never going to come up, I don't think, I don't know I have to have a final conclusion.
04-721 +++$+++ 30052 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so. But it's pending -- it's pending while -- if it's timely under State law. And if the State Court has already spoken to State law, I don't know that there's a question left for the Federal Court. I think -- I think they say, "Okay, this was timely, and, therefore, pending during the interval." But --
04-721 +++$+++ 30053 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, you want us to apply a presumption that a petition is timely if it's filed within 60 days. But California doesn't apply such a presumption, does it?
04-721 +++$+++ 30054 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it does --
04-721 +++$+++ 30055 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And --
04-721 +++$+++ 30056 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- not, but --
04-721 +++$+++ 30057 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- where do we get that? I mean, where does that come from?
04-721 +++$+++ 30058 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Where that comes from is, if you look to the closest analogous State procedures -- say, direct appeal from a conviction -- then you're allowed 60 days to go to the next -- to the appellate court. Similarly, if the State appeals the grant of habeas relief -- the State, unlike the defendant, can appeal -- then the State gets 60 days. So, when California thinks -- when California quantifies the concept of reasonableness in the appellate context, they do so in terms of 60 days or less. And I say "or less," because State habeas is actually supposed to be a quicker process than the appellate process.
04-721 +++$+++ 30059 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, shouldn't we leave it to California to adopt such a presumption?
04-721 +++$+++ 30060 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ California's not going to do that, because it's not a State-law question. It's just not a State-law question. But it's -- I think it's acceptable for a Federal Court to adopt a presumption to assist them in deciding a State-law issue, much --
04-721 +++$+++ 30061 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What --
04-721 +++$+++ 30062 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the way.
04-721 +++$+++ 30063 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- good would the -- what good would the presumption do if it's just a presumption? Presumably, if it's a presumption, the prisoner is --
04-721 +++$+++ 30064 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Uh-huh.
04-721 +++$+++ 30065 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- going to say, "Well, here's why you shouldn't follow the presumption in my case," just as, if it looks like he's waited a long time, he's going to say, "Well, here's why that delay was reasonable." I don't know that the presumption you're proposing serves much of a purpose.
04-721 +++$+++ 30066 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The value of a 60-day presumption is that it saves the Federal Court from having to look at the State-law time -- of the timeliness in that particular case and --
04-721 +++$+++ 30067 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, it doesn't --
04-721 +++$+++ 30068 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- it ought --
04-721 +++$+++ 30069 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- not if the prisoner says, "Here's why you shouldn't follow the presumption."
04-721 +++$+++ 30070 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's true. But if it -- - but if he files within 60 days, there's no need to look further or consider his argument regarding timeliness. And the other value in the 60-day --
04-721 +++$+++ 30071 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why phrase it as a presumption? Why not phrase it, "We determine California law to be, unless we hear otherwise, having examined what it does in other situations, that 60 days is timely"?
04-721 +++$+++ 30072 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that would be perfectly fair.
04-721 +++$+++ 30073 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's the same thing. But I wouldn't call it --
04-721 +++$+++ 30074 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right --
04-721 +++$+++ 30075 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- a presumption.
04-721 +++$+++ 30076 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that's a --
04-721 +++$+++ 30077 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And then --
04-721 +++$+++ 30078 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that's --
04-721 +++$+++ 30079 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- and then the -- you know, the incarcerated individual can come forward with excuses and say that, "California would make an exception to the 60-day rule for this," and we're back where we were.
04-721 +++$+++ 30080 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that would be fair, and it would accomplish the other thing that I offered the 60-day presumption to accomplish, is to offer a sort of safe harbor where the Petitioner knows that he gets tolling for 60 days, and need not file a protective petition.
04-721 +++$+++ 30081 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it would --
04-721 +++$+++ 30082 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So, it alleviates that problem.
04-721 +++$+++ 30083 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- it would -- it would be fair, but to call it a finding of California State law is a -- would be a bit of a stretch, wouldn't it? I mean, you -- you've made a perfectly good argument that it would be a sensible rule for California --
04-721 +++$+++ 30084 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Uh-huh.
04-721 +++$+++ 30085 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- to adopt, would not be sensible for us to adopt. But I'd have a hard time saying that I could justify it as a statement of current California law, and I'm --
04-721 +++$+++ 30086 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-721 +++$+++ 30087 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Am I missing something?
04-721 +++$+++ 30088 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Souter, I think it works very well as a presumption adopted by the Federal Courts for ease of administrability and, you know, at the same time, reflecting State law.
04-721 +++$+++ 30089 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, the --
04-721 +++$+++ 30090 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the --
04-721 +++$+++ 30091 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you're back to the presumption. But --
04-721 +++$+++ 30092 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. But --
04-721 +++$+++ 30093 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- but if --
04-721 +++$+++ 30094 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but the one thing --
04-721 +++$+++ 30095 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- if we're going to go further and say, "Oh, well, we find that that's what the State law is, unless they tell us differently," that's where I'm having trouble.
04-721 +++$+++ 30096 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's not very different from when the Federal Courts adopt a State statute of limitations --
04-721 +++$+++ 30097 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but we --
04-721 +++$+++ 30098 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- for a Federal --
04-721 +++$+++ 30099 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- know what it --
04-721 +++$+++ 30100 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- cause of action.
04-721 +++$+++ 30101 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- we know what it is. There's a State statute of limitations. It says --
04-721 +++$+++ 30102 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Uh-huh.
04-721 +++$+++ 30103 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- 3 years.
04-721 +++$+++ 30104 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-721 +++$+++ 30105 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We don't have anything like that here.
04-721 +++$+++ 30106 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ By analogy, you know that the period of time for seeking direct appeal is 60 days. So, it is -- it's deciding something by analogy, in much the same way the Federal Courts do for a Federal cause of action that has no statute of limitations.
04-721 +++$+++ 30107 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How many cases are there on habeas in California every year, about?
04-721 +++$+++ 30108 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh.
04-721 +++$+++ 30109 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, I mean about. Just give me the rough ballpark.
04-721 +++$+++ 30110 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would -- there are about 8,000, I would say.
04-721 +++$+++ 30111 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. So, the -- in the Supreme Court.
04-721 +++$+++ 30112 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. In the Supreme Court, I would say it is more like about 2500.
04-721 +++$+++ 30113 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, there are 25- -- so there are several thousand cases every year.
04-721 +++$+++ 30114 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thousands.
04-721 +++$+++ 30115 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Thousands.
04-721 +++$+++ 30116 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thousands.
04-721 +++$+++ 30117 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. So, I don't know what I'm doing with California procedure when I pass a -- pass a law, is what it would be. Write a rule, write a presumption. I have no idea what I'm doing there. They've worked out a system. But I don't -- why doesn't it work just to say to the lower courts, "Do your job"? What we said -- and maybe it wasn't expressed clearly -- maybe -- "Courts, look, it says 'reasonable time.' All right? Now, reasonable time, in every other State is 30 days, sometimes 20 days."
04-721 +++$+++ 30118 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Uh-huh.
04-721 +++$+++ 30119 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ "Sometimes the most, 60 days. So, look and see if it was filed within a reasonable time. That's all. And if California passes -- some specific thing says something special about it, of course, pay attention to that." What's wrong with that? They just would do it like they do any other thing of deciding what happens in --
04-721 +++$+++ 30120 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is -- that is exactly what I would ask this Court to do. Exactly -- is to -- Federal Courts take on this Federal question of tolling and complete the analysis by applying State law to find out if these petitions were timely filed in merit tolling.
04-721 +++$+++ 30121 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is "reasonable time" the issue, or is it what California would consider a "reasonable time"? I mean, that's the problem.
04-721 +++$+++ 30122 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, that is the problem.
04-721 +++$+++ 30123 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We're not --
04-721 +++$+++ 30124 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It --
04-721 +++$+++ 30125 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- making up, for ourselves, what's a reasonable time. If California says a year is a reasonable time, that would be the reasonable time at issue, wouldn't it?
04-721 +++$+++ 30126 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think it would be, in light of -- -- in light of the analogous State law that you only get 60 days to --
04-721 +++$+++ 30127 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but if --
04-721 +++$+++ 30128 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- appeal, but --
04-721 +++$+++ 30129 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the California Supreme Court says, "Despite all of these, in this kind of a situation, we think a year is a reasonable time" --
04-721 +++$+++ 30130 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But they --
04-721 +++$+++ 30131 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you --
04-721 +++$+++ 30132 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- haven't said so. The -- of course, you --
04-721 +++$+++ 30133 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know, but if they said so --
04-721 +++$+++ 30134 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If they said so --
04-721 +++$+++ 30135 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that would be binding --
04-721 +++$+++ 30136 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- if they had --
04-721 +++$+++ 30137 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- on us, wouldn't it?
04-721 +++$+++ 30138 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If they said so, then we'd have State law, and we would have to apply that. But we don't.
04-721 +++$+++ 30139 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why would you have to apply that? It's a Federal question whether the claim is pending or not during that whole period, right?
04-721 +++$+++ 30140 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of -- certainly it is. Certainly it is. But, at the end of the analysis, there is a little bit of State-law analysis. It has to be timely under State law. And if California Supreme Court tells us more about what's timely under their reasonableness standard, then I think you would have to take that into account. But the concept of reasonableness and due diligence that are employed in States -- in California's timeliness standards, I don't think "reasonableness" and "due diligence" mean anything different at the Federal courthouse in Sacramento than they do at the State Court of Appeal five blocks away, or in this Court. It's -- these are common terms that are used in the law all the time.
04-721 +++$+++ 30141 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask this question? I think our opinion the last time around suggested that possibility would certify into the California --
04-721 +++$+++ 30142 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Uh-huh.
04-721 +++$+++ 30143 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- Supreme Court, and that was not done. Was any other effort made that you can tell us about? Maybe you should, off the record, but to try and get the guidance of the California Supreme Court on the -- on the State-law problem here? Has anybody suggested to the court they might adopt a rule or a different practice or anything like that?
04-721 +++$+++ 30144 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, yes, we have suggested that. The California Supreme Court -- and, as you said, this is not within the record -- the California -- but, if I may, the California Supreme Court has declined to adopt a rule. They think it's a political question that has to be decided by the Legislature. And the Legislature, to date, has not adopted a rule or -- not a rule, a statute of limitations for these cases. And I have to say that, if they undertook that, then there would be certain costs to doing that, as well. You know, we would -- we would -- we would ease this issue, but we would confront the cost of considerable litigation, I would imagine, if we adopted a new statute for collateral relief in California. So, there's a cost to doing that, that might outweigh the benefits of --
04-721 +++$+++ 30145 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you.
04-721 +++$+++ 30146 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- clarifying this issue. If I may reserve my time?
04-721 +++$+++ 30147 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. Mr. Stris.
04-721 +++$+++ 30149 +++$+++ FALSE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: In light of Justice Breyer's questions, I feel compelled to begin with a brief explanation of why this case is a necessary consequence of Saffold. And, although it wasn't my initial intention to speak plainly, what I would suggest is that the problem is not the Ninth Circuit's decision in this case, but, rather, California's timeliness standards. And the problem that's presented by this case is one of Federal line-drawing. And it presents serious federalism, comity, and fairness concerns. And if we could step back from the facts of this case for a moment -- and I will discuss them -- I think it -- I hope, at least, it will become clear that the Ninth Circuit, in light of what it's dealing with in California, adopted the only sensible rule. So, the place to begin in answering some of your questions, Justice Breyer, is with California's timeliness standards. And to give some background, I would start with the principle that was articulated in the Warden's brief and that the California Supreme Court has articulated, which is that California does enforce its timeliness standards. It's usually done by -- in the summary-denial context, by citing to In re Swain or In re Robbins --
04-721 +++$+++ 30150 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I missed it. You said the problem is, California doesn't "support" or "import"? I just didn't --
04-721 +++$+++ 30151 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, I --
04-721 +++$+++ 30152 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- hear your word.
04-721 +++$+++ 30153 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- apologize.
04-721 +++$+++ 30154 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- the -- I just didn't hear what you said.
04-721 +++$+++ 30155 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What I had said is that California does enforce its --
04-721 +++$+++ 30156 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Enforce.
04-721 +++$+++ 30157 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- timeliness standards. And the way they customarily do that --
04-721 +++$+++ 30158 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what are those standards, please?
04-721 +++$+++ 30159 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. The standards are that a prisoner must file within a reasonable time. And that requires a two-part inquiry, Justice O'Connor. The first part is, Was there substantial delay? It's determined based upon a set standard, when the delay begins. But California's never articulated any standards for what period of time constitutes "substantial." That's the first problem. It's essentially an ad hoc determination that's made by individual California Courts. And that's why former Justice Brown described that as "an abstraction," and former Justice Moss described it as "vague and indeterminate at its very core." But that's what the Ninth Circuit is dealing with when it reviews these cases. So, to put it context for a moment, the way the State Courts do enforce this on a case-by-case basis, to be practical, is, the State Supreme Court often summarily dismisses cases on procedural bars, including timeliness. And, to give you some statistics from the Warden's brief, in 2004 there were 1,223 unexplained summary denials -- in other words, just denied -- and there were 1,174 denials with a citation to a case. And this is significant, because this means that, in about half of the cases in 2004 that went to the California Supreme Court, they enforced one of their procedural bars, and, in many of them, it was timeliness.
04-721 +++$+++ 30160 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wait. A case that was a procedural-bar case?
04-721 +++$+++ 30161 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure -- I'm not sure I follow the --
04-721 +++$+++ 30162 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you --
04-721 +++$+++ 30163 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- question, Justice.
04-721 +++$+++ 30164 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you could summarily deny and cite a case that showed you were denying on the merits.
04-721 +++$+++ 30165 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh. What I -- what I was suggesting is that there were 1,174 cases that were procedural-bar cases, where it said --
04-721 +++$+++ 30166 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where they cited a procedural-bar case.
04-721 +++$+++ 30167 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. It would say, "Denied, In Re Swain," meaning denied for being untimely. As opposed, Justice Scalia, to the 1,223 cases that were unexplained.
04-721 +++$+++ 30168 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And this could be --
04-721 +++$+++ 30169 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, now, maybe I'm --
04-721 +++$+++ 30170 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- just one point, if I may, Justice Breyer -- those are the California Supreme Court or California appellate court?
04-721 +++$+++ 30171 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's the California Supreme Court.
04-721 +++$+++ 30172 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you.
04-721 +++$+++ 30173 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
04-721 +++$+++ 30174 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, the difficulty of looking to that, which may be a good difficulty -- I mean, that is a serious problem, but I thought what we wrote in the case -- see, there are two problems here. First, which was bothering me, had to do with our Court's relation to the Ninth Circuit, which may be simple and -- as far as legally is concerned -- but I'm not sure about it. The other, which is much more interesting, is what you're talking about. All right, now, on the first one, I read the words. It says the words "on the merits." The Ninth Circuit thought those three words meant that the California Supreme Court could not have considered the petition too late, for, after all, it decided it on the merits, just as with the cite. Now, whether these words are right or wrong that follow, that's what we wrote. The next words were, "There are many plausible answers to this question." Sometimes, a court addresses the merits of a claim that it thought was presented in an untimely way. Why? Because they don't present any difficulty, and the timeliness issue does, or because it wants to give the reviewing court alternative grounds for decision, or maybe it just wants to show the prisoner we thought about the claim on the merits. He, after all, doesn't have a lawyer. He gets a postcard. That helps him. So, there are a lot of reasons. And it says, "Conclusion." Given the variety of reasons why they might have put the words "on the merits," the fact that they are there, those words cannot, by themselves, show that the petition was timely. So, then I read what they wrote. What they wrote is, "When the California Court denies a habeas petition without comment or citation, we have long treated the denial as a decision on the merits." Okay? And then it cites a pre-Carey case. "Therefore, the summary denial was on the merits, and the petition was not dismissed as untimely," citing two pre-Carey cases. Now, I don't see how, since I just said the words "on the merits do not end the issue" -- here, the words weren't even there, but they say, "We're treating it as if they were, and that ends the issue." So, what do we do about that? Then the next question, once I figure that one out, is, What do we do about the issue you're raising, which is quite important and interesting and so forth?
04-721 +++$+++ 30175 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. Well, as to the first question, the explanation that you just provided clearly requires the Federal Courts, when there's some indication from the State Court that it might have been untimely, to look into it. And that was the very problem with what the Ninth Circuit did in that case. It said "on the merits and for lack of diligence." So, to presume that that was just on the merits, that's flatly wrong. You'd need to do some further investigation. In light of the context of what's happening in California, however, when the State Court says nothing, there has to be some process by which the Federal Court can make a decision as to what that means, because if, in fact, in that case it was denied on the merits and the State Court thought it was timely, it would be extremely invasive for the Federal Court to re-review the case, potentially come to a different conclusion, and, we would suggest, dramatically alter the landscape of how prisoners exhaust their remedies in California, because now you're developing a Federal body of law that may be very different in deciding what's substantial and what's reasonable than California did. And so, what the Ninth Circuit, I believe, did in this case was look to context and come up with the presumption that was most reasonable in light of what's going on. So, the first thing that is relevant, from a --
04-721 +++$+++ 30176 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is that the most reasonable presumption? Why isn't the most reasonable presumption that the California Court denies, for untimeliness, wherever that issue is absolutely clear -- -
04-721 +++$+++ 30177 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The --
04-721 +++$+++ 30178 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and where that issue is not absolutely clear, and the -- and the merits issue is absolutely clear, it just -- it just denies?
04-721 +++$+++ 30179 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The answer -- pardon me --
04-721 +++$+++ 30180 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It doesn't want to say "denied on the merits," because that would suggest that it was timely.
04-721 +++$+++ 30181 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The answer, I would suggest, Justice Scalia, requires looking to California practice. And where I would start is with the California Supreme Court's decision in In re Sanders. And in In re Sanders, the Court made clear that after the Supreme Court adopted their policies in 1989 regarding certain presumptions in capital cases, and after the seminal In re Clark case in 1993, which asserted -- rather, articulated California's timeliness standards, most petitions -- and these are the California Supreme Court's words -- "Most petitions are timely filed." So, with that backdrop and the fact that half of the California Supreme Court's cases are being denied with a case citation, it's reasonable to conclude that the unexplained denials are not necessarily untimely. Now, I would add to that --
04-721 +++$+++ 30182 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't know what it -- "most" is 51 percent. I mean, among those that you don't know whether it was the merits or not, there could be a lot of ones where the timeliness is simply not decided upon.
04-721 +++$+++ 30183 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's certainly the case, Justice Scalia, that the presumptions the Ninth Circuit adopted could permit cases that even the California State Courts would consider to be untimely --
04-721 +++$+++ 30184 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, we could work with that. Now, that's, sort of, helpful, because if they say "most are timely filed," then the next question would be, "All right, what period of time is it?"
04-721 +++$+++ 30185 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's the --
04-721 +++$+++ 30186 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You'd have to get some professor to go through these cases, and they could -- they could figure out how long it is. What do you think it is, from your experience?
04-721 +++$+++ 30187 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I can't really answer that, and that's at the heart of --
04-721 +++$+++ 30188 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, I mean, is it more like a month, or is it more like 3 years?
04-721 +++$+++ 30189 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the reason I would suggest that -- and answering that is not necessarily appropriate or helpful in resolving the question -- is because of the series of cases that we quoted in footnote 15 of our brief. In certain instances, the California Courts have found 3 and a half years, 1 and a half years, 2 years to be reasonable. Now, that doesn't mean --
04-721 +++$+++ 30190 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because?
04-721 +++$+++ 30191 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In one instance, it was because of attorney abandonment. In other cases, it was because the prisoner was indigent.
04-721 +++$+++ 30192 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, there's a special reason. In your case, is there really a year that isn't explained at all?
04-721 +++$+++ 30193 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, I think it would apply to our case, as well.
04-721 +++$+++ 30194 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because?
04-721 +++$+++ 30195 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In our case, the first 15 months --
04-721 +++$+++ 30196 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, forget that. The library, I'll give you. What's the rest?
04-721 +++$+++ 30197 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ After that, our client was effectively on lockdown and had no access whatsoever to the library. Now, this presents the burden problem with doing any sort of independent determination. The Attorney General suggested, in the District Court, that there was a paging system in place whereby prisoners who are on lockdown could get access to the library. There was never any suggestion in the District Court on the part of the Attorney General that the lockdown didn't exist. And the Attorney General, and not my client, would have access to those records.
04-721 +++$+++ 30198 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- well, did your -- did your client file an affidavit or something saying he didn't have access to the library during the whole period of 3 years?
04-721 +++$+++ 30199 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I wouldn't call it an affidavit, but it was -- he filed an opposition to the motion to dismiss.
04-721 +++$+++ 30200 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
04-721 +++$+++ 30201 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
04-721 +++$+++ 30202 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- is there anything in the record that says, during the year after they said, "We'll change your job so you can get access to the library," that he didn't have access to the library?
04-721 +++$+++ 30203 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I -- well, I -- he didn't talk about not having access to the library. It's implicit, if you look at the Joint Appendix at --
04-721 +++$+++ 30204 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, all right, so what's his reason for saying that, "Last year, I was not able to file a petition in California Supreme Court"?
04-721 +++$+++ 30205 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That he had had -- had access to nothing. In other words, he didn't say, "I didn't have access" --
04-721 +++$+++ 30206 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, what does it say? What does he say? Go ahead.
04-721 +++$+++ 30207 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it would be on the Joint Appendix, pages 38 and 39, where he describes the lockdown. And, you know, I haven't looked at it recently, but my understanding is that he was suggesting that he had had access to nothing, including the prison library. And the Attorney General suggests that there was a paging system, but the documentary evidence that the Attorney General puts into the record, which is on pages 68 -- 67 -- no, pardon me, 88 through 96 -- is a prison manual that's dated 2000. Now, it says it's amended. But my client takes the position that this wasn't in the place at his prison at that time, and that would require a --
04-721 +++$+++ 30208 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
04-721 +++$+++ 30209 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- evidentiary hearing --
04-721 +++$+++ 30210 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the burden --
04-721 +++$+++ 30211 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to determine --
04-721 +++$+++ 30212 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- for that one is on him. I mean, if you say the burden is on the State to come up with a -- you know, showing that there was such a system, they came up with it. And you say, "The system may have been amended." Well, if it has been amended, there the burden is on you.
04-721 +++$+++ 30213 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course. But --
04-721 +++$+++ 30214 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean --
04-721 +++$+++ 30215 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the burden --
04-721 +++$+++ 30216 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- well --
04-721 +++$+++ 30217 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Pardon me. The burden on him would be in the context of an evidentiary hearing, which never took place. The District Court in this case didn't reach that issue, because they found that statutory tolling --
04-721 +++$+++ 30218 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, the --
04-721 +++$+++ 30219 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- wasn't available.
04-721 +++$+++ 30220 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the next thing, what he actually says here, is that the C facility where he was confined was put into lockdown clearly into February 1997. And this is all after he got access. Then it remained quiet and lockdown free until August 11th, 1997. So, that seems six months, on the most generous interpretation --
04-721 +++$+++ 30221 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that --
04-721 +++$+++ 30222 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- where he's not in lockdown, and he has access to the library.
04-721 +++$+++ 30223 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that illustrates the very --
04-721 +++$+++ 30224 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ About six months.
04-721 +++$+++ 30225 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Justice Breyer. And that illustrates the very problem with this case, which is that in cases where there is 90 days, 2 months, 4 months, the very difficult questions that a Federal Court would normally look to State law, if it was determinant, to apply, California is giving no guidance. And our case falls within that once you look to the particular explanations that our client put forward. And so, we would suggest that if there is a concern on the part of the Court about certain cases getting through and essentially allowing prisoners to abuse the writ, that this Court will use its equitable discretion to look at individual cases and to decide, "Hey, is this a situation where the behavior is dilatory? Is this a situation where the behavior is abusive?" And that would restrict the number of cases where Federal Courts would need to engage in a factual inquiry. The alternative is adopting a presumption, that the Attorney General suggested, that the California Courts have flatly rejected. That presumption has been adopted -- has been imported from the direct-appeal context. It has no significance in California habeas law. In the direct-appeal context, prisoners have the right to counsel. In the habeas context, they don't, except in capital cases. And, unsurprisingly -- pardon me -- unsurprisingly, the California Supreme Court has adopted a presumption of 90 days, in the capital context. So, in the -- in the noncapital cases, like my client's, where individuals have no incentive to delay -- my client has been up for parole twice already, he has no incentive to delay the habeas process -- and where people like Mr. Chavis think that they're, in good faith, complying -- and it's not just an issue of excuse -- and this goes back to a -- to a question that Justice O'Connor asked earlier -- there are specific policy reasons why the State of California has adopted the standard that it has. They've articulated --
04-721 +++$+++ 30226 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I just interrupt? I want to be sure that I get one thing straight. The 90-day presumption in capital cases, that is that if it's within 90 days, it's reasonable. Does it also presume that it's a -- more than 90 days, it's unreasonable?
04-721 +++$+++ 30227 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It presumes that if it's within 90 days, it's timely.
04-721 +++$+++ 30228 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
04-721 +++$+++ 30229 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And then you engage in the inquiry. But that's significant, Justice Stevens, because these individuals are represented by counsel.
04-721 +++$+++ 30230 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I understand. But do they adopt the converse? If it's more than 90 days, is it presumed to be untimely?
04-721 +++$+++ 30231 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, they do not. And they've flatly rejected that and found cases where there's -- several years' delay, even in the capital context, to be reasonable. But --
04-721 +++$+++ 30232 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I could see how they could overcome a presumption that way, but there's not even a presumption that over 90 days is unreasonable.
04-721 +++$+++ 30233 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct.
04-721 +++$+++ 30234 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There isn't. You --
04-721 +++$+++ 30235 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is not.
04-721 +++$+++ 30236 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You mean if you go in and you say, "I'm" -- you know, it's more than 90 days, and you bring in no evidence whatever of any excuse for being over 90 days, you're telling me that California Supreme Court would accept it?
04-721 +++$+++ 30237 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, that's not true. The --
04-721 +++$+++ 30238 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, then --
04-721 +++$+++ 30239 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the --
04-721 +++$+++ 30240 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- then it is a presumption --
04-721 +++$+++ 30241 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-721 +++$+++ 30242 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that if it's over 90 days, unless you have a reason, it's untimely.
04-721 +++$+++ 30243 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The burden shifts the prisoner to produce some evidence. I didn't understand that to be --
04-721 +++$+++ 30244 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, here we have 180 days -- 180 days, twice 90 -- with no excuse at all presented.
04-721 +++$+++ 30245 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the noncapital context. And it's very -- it's very different, because the California State Courts are articulating particularly -- - particular policy reasons for noncapital prisoners to delay. One that they're articulated is a desire to avoid the piecemeal presentation of claims. And this is particular to California's original writ system. You can have a functional appeal, but, because it's also an original writ, you -- if you have an additional claim that's legitimate, you need to add it in that claim.
04-721 +++$+++ 30246 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But once it's --
04-721 +++$+++ 30247 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
04-721 +++$+++ 30248 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- in the Federal habeas context, the AEDPA law suggests there's a great premium paid -- at stake for promptly resolving these things. What do we do about that? This is in the Federal court system now.
04-721 +++$+++ 30249 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If it were the case -- and there's no evidence on the record to suggest this -- that a substantial number of cases were going to start coming through California with massive delays, and this Court was going to be forced to provide statutory tolling, that would be a problem. But there's no evidence to suggest that. And that ties back to --
04-721 +++$+++ 30250 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what would we do in that situation?
04-721 +++$+++ 30251 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If that --
04-721 +++$+++ 30252 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If it's --
04-721 +++$+++ 30253 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- started happening?
04-721 +++$+++ 30254 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- open to the Federal Courts.
04-721 +++$+++ 30255 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If that started happening, I think you, in this Court, would do nothing. I think that Congress would see what was going on, and they'd amend the statute, because that's clearly not what they intended. But that's not this case.
04-721 +++$+++ 30256 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Amend just for California, when the system is working fine, all the other States that do have the timelines?
04-721 +++$+++ 30257 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think they would do that, Justice Ginsburg. But there's a proposal that I'm aware of, already, to change the specific language of 2244(d)(2), and it was made by a congressman in California. It doesn't suggest changing it for California; it suggests changing the language. But that hasn't happened.
04-721 +++$+++ 30258 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ To do what? What would it say?
04-721 +++$+++ 30259 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe it replaces the word "pending" with some replacement. And so, it essentially changes the tolling provision to account for this problem. But that hasn't happened yet. Right now, we have a congressional statute that, on its face, does not require the Federal Courts --
04-721 +++$+++ 30260 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about this? You might lose under this, but it -- see, so you say -- look, in every other State, the time for appealing from an appeals court to the State Supreme Court, asking them, is 20 days, normally, or sometimes 30. So, if the Ninth Circuit gets a case in which it was longer than 30 days, then, irrespective of whether they say "on the merits," whether they cite a case, whether they don't say anything and just have a postcard, what the Ninth Circuit should assume that they've done is consider it untimely, in the absence of the kind of excuse that the California Courts might accept as an excuse. So, then they'll look into that. And if California, in the future, wants something different -- which I'd be surprised -- they will say that their system means that a 3-year delay, or whatever it is, is actually timely. But, in the absence of some reason to think that, why not use the words, which would give you a chance to go back, and you could say, "This is not a case of total lack of excuse. There is excuse of the kind that California would accept."
04-721 +++$+++ 30261 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the problem with that sort of rule, Justice Breyer, is that it risks error, because California's standard is so indeterminate, and at very little -- it gets very little benefit. Because there's -- there is no real harm -- there's no real harm to the Federal interest here just because we have a conclusive presumption. The very nature of a conclusive presumption is that sometimes there will be cases that don't fit the presumption. But, on this record, and on anything I've seen from my review of California procedure, there's nothing to suggest that a -- the Federal interest in avoiding substantial delays is compromised by the specific rule that the Ninth Circuit has adopted. And the Ninth Circuit has adopted a --
04-721 +++$+++ 30262 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, how can you -- how can you say that? We do have a Federal rule and a limitation, and (d)(2) is an exception for time that it's pending before the State Courts. And if the State Courts aren't going to bother to tell us whether something's timely or not, or pending, giving them a blank check does undermine the Federal interest behind the 1-year limitation period.
04-721 +++$+++ 30263 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would say two things about that, Mr. Chief Justice. The first thing is, I would strongly resist your characterization that the State Court is saying nothing. I think that, in most cases, they are saying something, and that, in the cases that involve postcard denials, many of them, the court is saying that they're timely, and, in others, those are the hard questions. So, I would restrict your characterization to the fact that California is not saying something in some cases. Now, because the Federal statute necessarily imports a State standard, that's the very problem with the statute. I can conceive of many instances where --
04-721 +++$+++ 30264 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why do you think the Federal statute necessarily imports a State standard? It says that the State postconviction proceeding must be pending. And California presents an unusual situation, but we interpret that pending is a question of Federal law. It's not a State standard.
04-721 +++$+++ 30265 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true, Mr. Chief Justice. But if you took that to its logical conclusion, then, when State Courts made errors -- they didn't see that a case was properly filed, they just missed it -- the Federal Court would go in and review. Or in a case where they did claim the reverse, the Federal Court could say, "No, there was clear error." But this Court has rejected that in Saffold. It's rejected it in Pace. And -- because that is informed by the very view that the tolling provision was included to encourage one round of State exhaustion free of Federal interference.
04-721 +++$+++ 30266 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But we decided -- I'd like you to suggest something to -- from putting yourself in the -- in an imaginary position. Carey versus Saffold did have a dissent. And four Justices joined it. And let's imagine that, when I read the dissent, I see the -- and then I look at this case -- I see imaginary words on the top of the dissent, which are, "We told you so." [Laughter.]
04-721 +++$+++ 30267 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- now, therefore, think not of if you were arguing Carey v. Saffold afresh, but think of the words that are actually written there. And now think of what happened here. And now propose something, please, that will, in fact, deal with the problem that this case seems to present.
04-721 +++$+++ 30268 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I would be lying, Justice Breyer, if I didn't say that I haven't thought about that. And the problem is that the rule announced in Saffold isn't the right rule. It's trying to deal with a problem that's been created by the California State Courts. And so, the solution that the Ninth Circuit has adopted -- that's our proposal. We essentially think that it has a minimal harm to Federal interests, because maybe certain cases will get in that Congress didn't intend, but if you don't adopt it, there's no alternative. You can't certify the question. In California, you can't certify to the Court of Appeal. You can't certify from a District Court. So, if the California State Courts aren't going to change, it's not incumbent upon this Court to read the statute differently than the proper interpretation. And I concede the arguments that were made in the dissenting opinion in Saffold are very interesting, and they don't compel, in my opinion, a different interpretation of the statute; they recognize the difficulty that the statute presents. And it presents that difficulty because it does incorporate, in some measure, a State standard, and because there's one State out there, California, that's doing something that's very difficult to deal with.
04-721 +++$+++ 30269 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask this -- two questions about California? Is the problem we're discussing, with these long delays, primarily in the application the third range, the application of the California Supreme Court, as opposed to lower courts?
04-721 +++$+++ 30270 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I wouldn't characterize it as a problem, because, like I said before, I don't think that --
04-721 +++$+++ 30271 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But is the condition, that there is the long delay, that primarily occurs in the -- - in the application of State Supreme Court? Is it --
04-721 +++$+++ 30272 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I have no -- I've seen no specific evidence to be able to answer that with any citation, but my understanding, Justice Stevens, is that that makes sense, because it's the last process that the prisoner is going to be able to engage in, then they'll have to go to the Federal Circuit.
04-721 +++$+++ 30273 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then my second question is, Have we decided, or is it a matter of common practice in California, that the application to the California Supreme Court is necessary in order to complete the exhaustion?
04-721 +++$+++ 30274 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is -- it is necessary, in my opinion. I don't know if the State -- if this Court has ever --
04-721 +++$+++ 30275 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We've held it --
04-721 +++$+++ 30276 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- decided that.
04-721 +++$+++ 30277 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- in cases where there's direct review, but this is a different sort of animal that you have in California.
04-721 +++$+++ 30278 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But once you start from the premise that these are functional appeals, which they are, I don't see how you could read AEDPA any other way. I mean, AEDPA says that if there's an available method to challenge and -- a petition, whether it be by review or original writ, to the California Supreme Court would be available. So, you could be sure that if prisoners --
04-721 +++$+++ 30279 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think it is --
04-721 +++$+++ 30280 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- didn't file --
04-721 +++$+++ 30281 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- required.
04-721 +++$+++ 30282 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. If they didn't file, they'd get kicked out of Federal Court.
04-721 +++$+++ 30283 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There's one aspect of Saffold that you haven't addressed. We not only said what we said about they're saying "on the merits," we actually cited a case that involved exactly the situation here -- namely, Welch versus Newland, a CA9 case from 2001. And we cited that as an example of how the Ninth Circuit rule, quote, "risks the tolling of the Federal limitations period even when it is highly likely that the prisoner failed to seek timely review in the State appellate courts," close quote.
04-721 +++$+++ 30284 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would say two things about that.
04-721 +++$+++ 30285 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How could the Ninth Circuit here simply have ignored that criticism of exactly what they did here?
04-721 +++$+++ 30286 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't believe they ignored it, Justice Scalia. And if you look at the Welch case that you're referring to, on en banc rehearing the en banc panel reached a very different result. They didn't reach the issue of timeliness, for the reasons I described, but they determined that that was not a functional appeal, because --
04-721 +++$+++ 30287 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But we --
04-721 +++$+++ 30288 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the claim --
04-721 +++$+++ 30289 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- we didn't cite the en banc decision. We cited the panel decision --
04-721 +++$+++ 30290 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The en banc --
04-721 +++$+++ 30291 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- didn't we?
04-721 +++$+++ 30292 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- decision occurred after your -- -
04-721 +++$+++ 30293 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ After.
04-721 +++$+++ 30294 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- case.
04-721 +++$+++ 30295 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the point is, we criticized the panel decision in Welch, which did exactly what this panel did here.
04-721 +++$+++ 30296 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't agree with that characterization, Justice Scalia. I believe that case was included to illustrate that this Court thought that was probably too long, and that not looking at all to what's happening in the California system risks that. I don't think anything was at least necessary to the holding in Saffold --
04-721 +++$+++ 30297 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We cited --
04-721 +++$+++ 30298 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- because it --
04-721 +++$+++ 30299 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- it for the proposition that it -- as an example of how the Ninth Circuit rule, quote, "risks the tolling of the Federal limitations period even when it is highly likely that the prisoner failed to seek timely review in the State appellate courts." That's what we cited.
04-721 +++$+++ 30300 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is true. And in the context of a case like Saffold, where there's a reference to lack of diligence, that risk is too great. I'm not going to get up here and suggest that there's no risk to a conclusive presumption that some cases are going to make it into Federal Court that Congress didn't intend. But it's a balancing that's inherent in the notion of federalism. There is a risk that, by not reviewing clear statements by the California State Court, that cases get in that shouldn't. A case could not have been properly filed, and the State Court didn't find it. But, in Saffold and in Pace, this Court announced the principle that once the State Court decides, that's the end of the matter. And I guess, in summation, what I suggest is that atmospherically this case presents a difficult problem. The Ninth Circuit is involved. There is a five-four decision in Saffold. We recognize those things. However, there is no easy solution. The Ninth Circuit has adopted a rule that balances the very interest in federalism that the tolling provision was intended to preserve, and there's no suggestion that some corresponding Federal interest is compromised. And, in fact, if the Federal Courts are required to review these cases, they'll be required to do it in 60 days, in 70 days, in 80 days, and, if they make a mistake, and they find a case to be untimely that the California Court didn't, will deprive first Federal habeas, one Congress didn't intend. That's fundamentally contrary to the purpose of AEDPA.
04-721 +++$+++ 30301 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you --
04-721 +++$+++ 30302 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
04-721 +++$+++ 30303 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- Mr. Stris. Ms. Chatman, you have 4 minutes remaining.
04-721 +++$+++ 30305 +++$+++ FALSE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. Of course there's a Federal interest at stake here. It's the Federal interest in the Federal Courts not having to deal with stale habeas claims in Federal Court. One thing I'd like to address is the capital-case presumption, which is now -- excuse me -- 180 days. It's been changed from 90 days. That presumption is for -- from the filing of the reply brief to filing an initial petition in California Court. That is, your first habeas petition. That -- you only get presumed timely for 180 days. Here, we're talking about noncapital cases going just from -- taking claims, that have already been presented in one petition, to the next level. So, in those --
04-721 +++$+++ 30306 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, 180 days from what?
04-721 +++$+++ 30307 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ From the filing of the -- the final due date of the filing of the reply brief --
04-721 +++$+++ 30308 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I mean, you file --
04-721 +++$+++ 30309 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in the direct appeal.
04-721 +++$+++ 30310 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the reply brief in the lower court. Maybe the judge will take 4 months to decide it. What's the relation? I don't understand that. Or maybe it'll take --
04-721 +++$+++ 30311 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-721 +++$+++ 30312 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- 2 days --
04-721 +++$+++ 30313 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think --
04-721 +++$+++ 30314 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- to decide.
04-721 +++$+++ 30315 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think they -- I think they date it from the filing of the reply brief because --
04-721 +++$+++ 30316 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why? What would the theory be? I don't understand that.
04-721 +++$+++ 30317 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because they like to see these claims presented along with the appeal to be -- so that they can possibly bring them together and decide habeas claims in light of the record on appeal. So, I think that's why they date it from filing of the reply briefs.
04-721 +++$+++ 30318 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, a judge -- you file it. On day -- what -- you file it on April 1st, and then the judge decides it in August. Or September. And now it's only 3 days before the 6-months -- you have to file your appeal, like, in 3 days. That wouldn't make sense. And the converse would not --
04-721 +++$+++ 30319 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you're not -- you're generally not supposed to be waiting. I mean, you were talking about claims such as --
04-721 +++$+++ 30320 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You can't --
04-721 +++$+++ 30321 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- ineffective --
04-721 +++$+++ 30322 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- file an --
04-721 +++$+++ 30323 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- assistance --
04-721 +++$+++ 30324 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- appeal before -- oh, maybe you can in California. You're going to file the appeal before the lower court decides it?
04-721 +++$+++ 30325 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if we're talking about capital cases here, they are -- they are filing their appeals directly in the California Supreme Court; similarly, with their habeas petitions.
04-721 +++$+++ 30326 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Even -- or even before they get a lower court decision.
04-721 +++$+++ 30327 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There would be no lower court decision.
04-721 +++$+++ 30328 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They don't, at all.
04-721 +++$+++ 30329 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
04-721 +++$+++ 30330 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In other --
04-721 +++$+++ 30331 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, no, no.
04-721 +++$+++ 30332 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- they don't, at all.
04-721 +++$+++ 30333 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, they go --
04-721 +++$+++ 30334 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh.
04-721 +++$+++ 30335 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- straight to California Supreme Court. Which brings up one point, which is that the problem that we're looking at here in deciding timeliness will not arise in capital cases. We will not have that problem, because capital cases go straight to the California Supreme Court. There are not going to be intervals between the courts to deal with. So, that simplifies, I think, the problem a little bit. The other thing I'd like to address is the argument that a State Court is saying something with these summary orders. I strongly disagree with that. They are absolutely saying nothing. This Court said in Ylst that the essence of an unexplained order is that it says nothing. It does not say, "This is a timely petition."
04-721 +++$+++ 30336 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the ones that would cite a case that threw out the petition because it was untimely -- and we were told there were over a thousand of those every year -- that would be saying something, wouldn't it?
04-721 +++$+++ 30337 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is -- in the California Supreme Court, you will find that sometimes, that they will indicate untimeliness by a case citation; hardly ever in the lower appellate court. And I would also disagree with the characterization of delay being a problem going from the lower appellate court to the California Supreme Court. We see it at both levels. And I would also disagree that this shouldn't be a problem because these Petitioners have no incentive to delay. That may be the case, that they don't have an incentive to delay, but they do, in fact, sleep on their rights, as --
04-721 +++$+++ 30338 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How often --
04-721 +++$+++ 30339 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Mr. Chavis did.
04-721 +++$+++ 30340 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you, as the Attorney General, what period of time after the District Courts made a decision, and now -- they've now filed their claim in the Court of Appeals -- how long is it before you say it's untimely?
04-721 +++$+++ 30341 +++$+++ TRUE +++$+++ MS. CHATMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would -- we would say anything over 60 days. Yes, Your Honor. I see my time is up. Thank you.
04-721 +++$+++ 30342 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Ms. Chatman. The case is submitted.
04-759 +++$+++ 30347 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll now hear argument, United States v. Olson. Ms. Maynard.
04-759 +++$+++ 30349 +++$+++ FALSE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The Federal Tort Claims Act waives the sovereign immunity of the United States for the torts of Federal employees when private persons in like circumstances would be liable. But instead of applying private-person principles of liability, the Ninth Circuit looked to the State and governmental-entity principles of liability. It concluded that the United States could be liable here, because Arizona has decided to hold its governmental entities liable when State employees are negligent. That decision is wrong, for two reasons. First, it is contrary to the plain text of the Federal Tort Claims Act. The Federal Tort Claims Act makes clear that the liability of the United States is to be judged by the principles of private-person liability in the place where the tort occurred. In section 1346(b)(1), the Federal Tort Claims Act allows jurisdiction and waives the sovereign immunity of the United States under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
04-759 +++$+++ 30350 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do I understand that you would accept the rule that if Arizona held a private inspector liable to third persons for their injuries, then the Government of the United States would be liable? It's not quite the Good Samaritan -- not quite the Good Samaritan type, but you would accept that as the proper measure of your liability in a case like this?
04-759 +++$+++ 30351 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As long as Arizona applied that principle of liability to private persons in Arizona.
04-759 +++$+++ 30352 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-759 +++$+++ 30353 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Kennedy. So, it will depend on what the particular State's law is. Here, the only private-person law that was argued below was the Good Samaritan doctrine, and -- as a possible analogy to the conduct of the mine inspectors here. But it might --
04-759 +++$+++ 30354 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It gets ahead of the argument just a little bit, but you had a footnote about police officers. You have a park ranger, Federal employer. Is the analog there that we look to -- what the duties of a private security guard would be -- what do you do with those cases?
04-759 +++$+++ 30355 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, those cases, as we note, do present, often, special circumstances not present in this case, Justice Kennedy. But the answer to the question that's presented here is the same. You still would look to whether or not there is private -- a private-person analog. And, if there is, then you would look to the liability of private persons in that circumstance.
04-759 +++$+++ 30356 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, even with the police officer, I have to find a private analog.
04-759 +++$+++ 30357 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, you do. For example, if someone brought a trespass action against a Federal law enforcement officer for entering upon their land, you would apply the same State law as it relates to trespass claims against private persons. Those claims may, for example, have a defense of lawful authority to enter. When looking at whether or not a police officer had -- a Federal officer had lawful authority to enter, one might then look to Federal law to determine whether or not the officer had authority to enter, but you would still be applying the principles of private-person liability. If one concluded that there was no private-person analog, then the only answer under the Federal Tort Claims Act would be that the United States cannot be liable.
04-759 +++$+++ 30358 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I mean, that's kind of a $64,000 question here. Give me an example where you think there's no private-person analog.
04-759 +++$+++ 30359 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Mr. Chief Justice, we think it's often rare that there is no private-person analog, given this Court's decision in Indian Towing, which stresses --
04-759 +++$+++ 30360 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
04-759 +++$+++ 30361 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that one should look to a private person in like circumstances. I think this Court, in Feres, although that decision has been -- has been limited -- did determine that there was, in that situation, no private-party analog --
04-759 +++$+++ 30362 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't there always a private -- I mean, we're talking about tort law -- isn't there always a private analog, which is, you know, exercising reasonable care under the circumstances toward people to whom you owe some duty, and you just apply that general principle?
04-759 +++$+++ 30363 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To the extent you're suggesting that we just look to general theories of tort law, I think that would be incorrect. The -- because the Tort Claims Act -- the language of the Tort Claims Act makes the United States liable only where a private party in like circumstances would be liable. And in Indian Towing, this Court defines "in like circumstances" as looking to the same character of conduct of the -- of the person. So, you would have to find a private person who's engaged in the same character of conduct, and then ask the question, What principles of liability does the State apply to those persons? Here, the --
04-759 +++$+++ 30364 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, all right, so if it's a police officer stopping somebody on a highway, it's the same as a private security guard stopping somebody at a -- you know, the driveway at a plant or something.
04-759 +++$+++ 30365 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That may be the closest private-person analog. In that situation, however, when one goes to apply the defense, it's just as one would if talking about a private security guard. One would ask the questions whether the guard had the requisite authority. And the State would look to what that guard's authority was. And often States would look -- if the guard happened to be a Federal officer, would look to Federal law. And that can be appropriate, I think, for -- under, potentially, three different -- for, potentially, three different reasons. One, the language of the defense in 2680(a), which provides the United States with a defense to liability in circumstances where , with due care, you're carrying out a Federal statute or regulation. It -- another source of authority might be the State-law principles simply look to what the authority of the person doing the conduct is, and then you would look to Federal law for the source of that authority. And that could be right, under this Court's suggestion in Muniz, that Federal regulations -- once an actionable duty is established under State tort principles, one can look to Federal regulations to determine whether or not -- what the applicable standard of --
04-759 +++$+++ 30366 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can you back --
04-759 +++$+++ 30367 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- care was.
04-759 +++$+++ 30368 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- up in Muniz a little bit? Because that was a prison administration. And so, what is the private-party analog to that?
04-759 +++$+++ 30369 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think this Court suggested, in Muniz, that perhaps there could be private persons operating prisons, or one would look --
04-759 +++$+++ 30370 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't recall --
04-759 +++$+++ 30371 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in that --
04-759 +++$+++ 30372 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that in the decision. The phrase from the Tort Claims Act about "as a private party" was repeated, but I don't remember any discussion of what that private party would be, in Muniz.
04-759 +++$+++ 30373 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You may be right, Justice Ginsburg. I think the important point to take away from Muniz is that the Court stressed that, whatever the measure of the United States' liability would be for the claims at issue in that case, it could not be the State law as it related to governmental entities; that one would have to, as the text requires, look to State law as it relates to private persons. The point that I --
04-759 +++$+++ 30374 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because in those days the Government was arguing it should be like State officials.
04-759 +++$+++ 30375 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For purposes of obtaining immunity, we were arguing that -- which I think is a different argument than we're making here today -- we were arguing that the Federal Tort Claims Act was not meant to waive our sovereign immunity at all with respect to certain types of governmental activities. But that's not the argument that we're making today. Today, we are arguing simply that one must, as the Court held in Indian Towing and Rayonier, one should look to the -- to the -- to the text of the statute, and that that must be the measure of our liability.
04-759 +++$+++ 30376 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask you, what would you do if Arizona had a statute that said that any company that contracts privately to do mine inspections must obey the standards in the Federal guidelines? What would the standard be?
04-759 +++$+++ 30377 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That presents a difficult question, Justice Stevens, as I'm sure you know. [Laughter.]
04-759 +++$+++ 30378 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that would, obviously, be a harder case than the one that we have here, and -- which I would like to --
04-759 +++$+++ 30379 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you say --
04-759 +++$+++ 30380 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- address how you apply it here.
04-759 +++$+++ 30381 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- and I think you're probably right --
04-759 +++$+++ 30382 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If --
04-759 +++$+++ 30383 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that you can't just make a Federal -- implied Federal cause of action under the Federal standards, from what we know. But then I was wondering, What if the Arizona statute said that's what the private firm should do?
04-759 +++$+++ 30384 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If a State statute looked to Federal law as the source -- I think one has to be careful when one talks about "negligence per se" type principles, which is what you're suggesting -- some States look to statutes and regulations solely to establish a standard of care once a separate duty has been established. And some States, as respondents claim Arizona does, look to it establish both duty and a standard of care. But, putting that aside, if -- to respond directly to your question -- if a State adopted a Federal statute and used it to apply to private persons, you would be most of the way home in getting Federal Tort Claims Act -- at least the creation of potential liability against the United States. However, I think in that instance, there would still be a question as to the intent of Congress, in the Federal statute itself that was used, as to whether Congress intended to foreclose any private action, any private enforcement, such that the States -- if the State has misinterpreted, in other words, a Federal law, that presents, I think, a Federal question.
04-759 +++$+++ 30385 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, I'm assuming they just did it independently. They said, "We want a regulation on the private mine inspectors, and let's just adopt the -- a standard that shall, in all respects, be the same as the Federal standard."
04-759 +++$+++ 30386 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If they're just simply borrowing it, and don't feel compelled to borrow it, and are, indeed, applying it to private persons who perform safety inspections, then the United States could potentially be liable under the Federal Tort Claims Act. As I mentioned here, though, that is definitely not this case, because --
04-759 +++$+++ 30387 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but it seems to me that that's quite a foreseeable possibility. If there is such a thing as private safety inspectors in Arizona -- I'm not sure, but if there are, I assume that what they do is, when they go into a particular industrial area, they look at the safety standards for that industry, including Federal and State regulations. So, if you have a mine inspector, then it seems to me that his liability might very well be measured by whether or not he's inspected the mine in accordance to Federal safety standards.
04-759 +++$+++ 30388 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I have several answers to that question, Justice Kennedy. First, your use of "standards" there appears not to be one to create an actual duty in the first instance, which is really the question before this Court. Is there any duty between the United States and the private miners? Secondly --
04-759 +++$+++ 30389 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but I thought we said, at the outset -- and correct me if I'm wrong -- if Arizona imposes liability on private safety inspectors for injuries to third persons, then the United States would be liable here.
04-759 +++$+++ 30390 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, I'm sorry. I didn't realize you were still operating --
04-759 +++$+++ 30391 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That was the --
04-759 +++$+++ 30392 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- under Justice --
04-759 +++$+++ 30393 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- hypothetical.
04-759 +++$+++ 30394 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Stevens' hypothetical. If Arizona has created an actionable tort duty that it imposed -- that it's willing to impose upon its private citizens who perform safety inspections, to all persons who work at places where they perform safety inspections, that would be a different case. Then that would be applying the law as it relates to private persons in like circumstances. Here, though, it's clear from the cases we discuss in our brief, including Easter and Papastathis, that Arizona -- when private parties perform safety inspections on the property of another, Arizona applies its Good Samaritan doctrine. That is not -- in order to determine, at the outset, whether there's any actionable duty between the inspectors and the injured party. That's the step that the Ninth Circuit did not engage in here. The Ninth Circuit, instead, decided --
04-759 +++$+++ 30395 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I understand.
04-759 +++$+++ 30396 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay. So, the -- and the reason that you can't, in this case, follow Justice Stevens' reasoning is because the only provisions of law to which the respondents point to set the negligence per se principles are policy manuals and procedures of the coal -- Federal Mine Act that apply only to Federal employees. So, they point to no case or law where these provisions, upon which they rely, would impose either a duty or a standard of care upon private persons in Arizona. Now, in that -- to distinguish it -- I'm sorry.
04-759 +++$+++ 30397 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In your view -- even though the Federal standard would not be controlling, in your view, if you applied a general reasonable-person test, would the Federal standards be admissible so that the plaintiff could argue that there was a failure here which is evidence of negligence?
04-759 +++$+++ 30398 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In many States, one would look to Federal standards for setting the standard of care. And we think that it could be relevant here what the -- but you must get over the duty hurdle. And that, respondents cannot do by looking to State and governmental-entity liability.
04-759 +++$+++ 30399 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ When you say that it may be relevant, are you thinking of 2680(a)? Because 2680(a) says, you know, if you exercise due care, any act that you take in the -- in -- well, let's use the exact language -- "any act or omission in the execution of a statute or regulation will not be a ground of liability," with -- at least leaving open the door that any failure to take steps that would have been reasonable in executing it might be. Is that why you answered Justice Stevens as you did?
04-759 +++$+++ 30400 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, just to take your question, and then maybe clarify what you mean by what --
04-759 +++$+++ 30401 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let me -- let me --
04-759 +++$+++ 30402 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I can --
04-759 +++$+++ 30403 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- ask it --
04-759 +++$+++ 30404 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I can -- I can answer it the 26- --
04-759 +++$+++ 30405 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Look, I don't have to cross-reference --
04-759 +++$+++ 30406 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Good.
04-759 +++$+++ 30407 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- it to Justice Stevens.
04-759 +++$+++ 30408 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
04-759 +++$+++ 30409 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Give me an example of the -- of the function of 2680(a). When would there be liability, but for that provision?
04-759 +++$+++ 30410 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think -- obviously, you don't get to 2680(a) unless you've gotten through the first part and established --
04-759 +++$+++ 30411 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
04-759 +++$+++ 30412 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that there's some actionable duty on private persons in like circumstances and that we might be liable. If you do get over that hurdle -- say, for example, the State standard of care with -- in relation to private parties is higher than that required by Federal statute -- imagine a Federal regulation that requires VA doctors to --
04-759 +++$+++ 30413 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, I could -- I could --
04-759 +++$+++ 30414 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- take care of their patients once a day.
04-759 +++$+++ 30415 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I could understand that if they -- it would be an easier question for me if the statute said, "Even if you violate the statute, if you otherwise use reasonable care, no liability." But here, it talks about reasonable care when you are -- when you are, in the statutory phrase, in the execution of the statute, which suggests to me you're not violating the statute, you're not violating any standard. So, what function does it serve?
04-759 +++$+++ 30416 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it can serve functions in other instances; for example, if someone alleges that you were following the statute, but the statute was invalid. But I think in terms of a -- because it goes on to say whether or not the -- the regulation --
04-759 +++$+++ 30417 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, it's really --
04-759 +++$+++ 30418 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- is valid.
04-759 +++$+++ 30419 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the validity is the -- is the nub of the provision.
04-759 +++$+++ 30420 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. I was just saying it has that other function. I think, here, the short answer to your question is, if this -- if, when you're talking about the -- what's an appropriate standard of care once one's established an actionable duty -- if the State law, as it relates to private persons, set a more stringent standard of care than the Federal regulation, for example, and the Federal employee were complying with the standard of care set forth in the Federal regulation --
04-759 +++$+++ 30421 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of the Federal -- I -- okay.
04-759 +++$+++ 30422 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- this could potentially provide a defense, even though, once you went through the first part of the statute --
04-759 +++$+++ 30423 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I really don't understand the -- are you sure that a failure to execute a statute does not come within the language, "an act or omission," in the execution of a statute? I would think a total failure to execute is an omission in the execution of the statute.
04-759 +++$+++ 30424 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure I --
04-759 +++$+++ 30425 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You mean if you executed 90 percent and omit 10 percent of what you're supposed to do, it comes within that language, but if you don't execute at all, it doesn't? That seems to me most unlikely. I mean it seems to me --
04-759 +++$+++ 30426 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ She's saying "execution" is not synonymous with "performance," which may well be correct.
04-759 +++$+++ 30427 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. Well, you --
04-759 +++$+++ 30428 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I had assumed that --
04-759 +++$+++ 30429 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you accepted, it seemed to me, the premise of --
04-759 +++$+++ 30430 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-759 +++$+++ 30431 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- Justice Souter's question, which is that (a) -- 2680(a) only applies to a failed execution. There has to be at least an attempted execution. I'm not sure that's true. It says "an act or omission" in the execution. And I think a total -- I just don't do the thing at all. I think that's an omission in the execution.
04-759 +++$+++ 30432 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I must be missing the thread of the question somewhere. I was just --
04-759 +++$+++ 30433 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I --
04-759 +++$+++ 30434 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I was trying to make just --
04-759 +++$+++ 30435 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but you've --
04-759 +++$+++ 30436 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a simple, modest point that --
04-759 +++$+++ 30437 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you've still answered my question. I mean, you're -- you have said, "Assuming that the individual is executing the statute, there is no deficiency in the performance of executing the statute. There is still this function." And I think I understand your answer. But, I mean, I think Justice Scalia's point is correct, it may apply in cases in which you are purporting to act under the statute, but you omit actions that you should take. In other words, your performance is deficient. And there, the answer is easier, because it says as long as you're exercising due care, no liability.
04-759 +++$+++ 30438 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We may still have a defense in --
04-759 +++$+++ 30439 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-759 +++$+++ 30440 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that situation. I think --
04-759 +++$+++ 30441 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-759 +++$+++ 30442 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's correct. It's an important point --
04-759 +++$+++ 30443 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There was an argument that was made in your brief, and I didn't fully grasp the thrust of it, in the -- that is, you said that the Mine Safety and Health Administration has a duty to the Secretary of Labor, but not to the mine operator and not to the miner. If that were true, then would there be -- you wouldn't even get to the Good Samaritan doctrine, would you, if the only duty is to the Secretary of Labor?
04-759 +++$+++ 30444 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that, in fact, would be an application of the Good Samaritan doctrine, Justice Ginsburg. In other words, I think you're referring to the first part of the -- we have an -- we believe we have an argument. And the Daggett case, which we cite, addresses whether -- I think this is an open question in Arizona law under their interpretation of the Good Samaritan doctrine -- whether someone in the position of the United States here is -- has undertaken to render services to another. Because that's the argument to which you're referring, I believe. And we think there is an argument that we are not rendering services to another. But that is not the same as saying that the Good Samaritan doctrine -- that is an application of the Good Samaritan doctrine. In other words, courts, when they -- these are all factors that take into account whether someone will have a duty, pursuant to the Good Samaritan doctrine -- one of the factors is that you must have undertaken to render services to another. Another factor, which we think is also relevant here, is whether or not the injured party justifiably and detrimentally relied. And we don't think -- you know, they have asked you to decide this question -- we think this is more appropriate a question for remand, but the United States does not believe that the respondents can make out either of those elements of the Good Samaritan doctrine, and that the United States, therefore, cannot ultimately be liable only -- under the only available private-person analogy. But the important point is, you -- that is an application of the Good Samaritan doctrine.
04-759 +++$+++ 30445 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're not sure that the Good Samaritan doctrine is the -- is necessarily what the Arizona law would be -- what the analog would be.
04-759 +++$+++ 30446 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In our view, it's the only private-person law that respondents argued to the Ninth Circuit. Respondents have submitted a new argument to this court contending that governmental-entity law and private-party law in Arizona is equivalent in this situation. But that is wrong. It is clear that the State of Arizona, as a public-policy matter, has decided to create broader, actionable tort duties on its own governmental employees, and to expose itself and open its own coffers to -- when -- to claims when its employees have injured its citizens. But that is not the same law that they apply to private persons, and we know that from the Daggett case, which we discuss -- I believe it's on page 6 of our reply brief. In the Daggett case, that was a case involving an inspection by a county of a swimming recreation area, pursuant to mandatory State and county regulations that required such inspections. The Arizona Court of Appeals there held that there was a duty by the county to a person who had -- who dove into the swimming pool and was injured as a result of hitting the bottom, that there was an actionable duty running against the county there as a matter of the State of Arizona's decision to create tort duties when its employees and governmental entities violate mandatory obligations or perform them negligently.
04-759 +++$+++ 30447 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Maynard, may I interrupt and just ask this? Do we have to decide what the Arizona rule is in order to decide the main question presented -- namely, whether the analogy to Arizona public officials is sufficient?
04-759 +++$+++ 30448 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not necessarily, Justice Stevens. We think it's perfectly clear, from the text of the statute and the language of the Ninth Circuit's decision, that what they did is improper.
04-759 +++$+++ 30449 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I'm just wondering if you're not discussing a State-law issue that has not been decided by either court below or really fully argued here.
04-759 +++$+++ 30450 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it has not -- the -- whether or not there's an equivalency, whether or not private persons are liable in the same instances as State and governmental entities, was not argued by the respondents below.
04-759 +++$+++ 30451 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
04-759 +++$+++ 30452 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And, therefore, it was not decided. We do not think -- it is a question of State law, but we think the answer is very clear, because respondent -- the only thing respondents point to here to assert that there is an equivalent are cases making State and county and governmental entities liable. They point to nothing, as they concede, cases involving private persons. So, there -- if -- we don't think the Court should remand, which would be an invitation to the Ninth Circuit to essentially do, under another guise, what it has already done, which is essentially apply governmental-entity liability to the United States, in contradiction to the --
04-759 +++$+++ 30453 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I wouldn't do that.
04-759 +++$+++ 30454 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- text of the statute. If I can finish my Daggett answer, though, Justice Stevens, I think that'll make clear why the two are distinct and why it isn't a difficult question of Arizona law. The Daggett court went on to decide that the county, although it had a duty to the injured party pursuant to governmental entity law, similar to what the Ninth Circuit applied to us here, there would be no actionable duty if one applied the Good Samaritan doctrine. It found that none of the second three prongs of the Good Samaritan doctrine were met, and it also raised the question as to whether or not someone in the position of the county would even be rendering services into another sufficient to meet that part of the Good Samaritan doctrine. So, we think it is very clear that the two are not the same. The -- so, we would ask that the Court not remand, and leave that question open, Justice Stevens.
04-759 +++$+++ 30455 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's just a background question. I'm curious, was ASARCO sued here, or -- and is its liability capped by workmen's comp laws, or?
04-759 +++$+++ 30456 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do not know whether they were actually sued. There are -- their -- I do believe their liability, though, is that workers' comp is an exclusive remedy here. And, although it's not in the record in this case, the State of Arizona was also sued, and, according to news reports, settled for substantial sums with both of the respondents. If there are no further questions at this time, I would like to reserve my time.
04-759 +++$+++ 30457 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Ms. Maynard. Mr. Cotter.
04-759 +++$+++ 30459 +++$+++ FALSE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Your Honor. MR. CHIEF JUSTICE, AND MAY IT PLEASE THE COURT: I'd like to begin by addressing the last point made by the Office of the Solicitor General, which is the Daggett case. And I address that merely to highlight that this is a State law issue. It -- the Daggett case did not hold, as the Solicitor General maintains, that under Arizona law there would be no duty under the restatement sections 323 or 324. In fact, what the Court says in remanding the case because they found a duty under the county regulations, is, "We assume, without deciding, that there is a claim under 324 and -- 323 and 324, and note simply that there are no allegations in the plaintiff's complaint that would satisfy those issues." So, they simply say, because there's additional litigation coming, they were giving heads up to the party that he needs to amend the complain to assert the Good Samaritan elements.
04-759 +++$+++ 30460 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you a question that Justice Kennedy just brought up? Did this -- did Mr. Olson collect, under the State workers' compensation statute, from the mine operators?
04-759 +++$+++ 30461 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, Mr. Olson did collect, under the State workers' compensation statute, from the mine operator, that is correct, as did Mr. Vargas. And, in fact, the State of Arizona was sued -- the State mine inspector -- alleging that they were negligent, and that case was resolved. That -- a point of interest in that case is that in that case, the State -- because Arizona is a pure comparative-negligence State -- alleged that the Federal mine inspector was partially at fault and that, therefore, Mr. Olson and Mr. Vargas' damages should be reduced, just as, in our case, if we had proceeded beyond the motion-to-dismiss phase, we could have anticipated, as is common, that the Federal Government would have identified the State of Arizona and the mine operator to be non-parties at fault, as well, so that those individuals -- the negligence of those individuals would reduce the plaintiff's damages against the Federal Government.
04-759 +++$+++ 30462 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the -- but the mine operator -- the Compensation Act is the exclusive remedy under Arizona law, so the -- nobody could get anything more from the mine operator. Is that so?
04-759 +++$+++ 30463 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct. In the interest of candor, I have to tell Your Honor that we sued the parent company to the mine operator, which is Grupo Mexico, in an attempt to assert a claim, and that case was resolved only by some -- by making some concessions on the workers' compensation lien issues that the workers' compensation carrier had back against the claimants for their recovery from the State of Arizona. I hope that's clear. But, generally, workers' compensation carriers have a right to get repaid if there's some private settlement, and concessions were made on that right, because of the -- suing the parent company, and that case was never resolved on the merits. To begin, Your Honor, this came to the Ninth Circuit from a motion to dismiss. And that has significance to this -- to this question, because the plaintiffs were not able to develop the factual record which goes to the issues of whether or not there would be liability under the State law -- the Good Samaritan law or under -- issues about assumption of duty under State law.
04-759 +++$+++ 30464 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that goes to the remand question raised --
04-759 +++$+++ 30465 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It --
04-759 +++$+++ 30466 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- earlier.
04-759 +++$+++ 30467 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- it does --
04-759 +++$+++ 30468 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It doesn't -- it doesn't go to whether the Ninth Circuit was correct here.
04-759 +++$+++ 30469 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in a roundabout way, it does, Justice Scalia, because what happened was, the Ninth Circuit was faced with the task, under the Federal Tort Claim Act, of deciding whether -- if the Federal Government -- the Federal mine inspectors, if you would -- were private people under like circumstances, would they be liable? So, the Ninth Circuit was essentially asked a hypothetical question by the Federal Tort Claim, and it was asked to resolve that question on a motion to dismiss for failure to state a claim, which the standard is, of course, that we can set -- we can prove no facts which would -- which would establish a cause of action. And what the court really did, because the court applied a body of law -- the Ninth Circuit -- that began with the Louie doctrine -- is, the court looked at Arizona mine-inspector law as a predictor to what Arizona private-person law would be. And from Justice Roberts' questions about police officers, in the Louie case, the State of Washington, like the State of Arizona, had waived sovereign immunity.
04-759 +++$+++ 30470 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I mean, that might have -- you might have won if they had said, "We're going to look to see what the law is in Arizona governing a private person who performs a similar kind of inspection. And we decide that it's the same." You would have won that, I guess. But you didn't, because they didn't. That isn't what they said.
04-759 +++$+++ 30471 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That --
04-759 +++$+++ 30472 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That is, we're not looking to the law governing private persons, we are just looking at law governing municipalities, and they're -- it seems to me they are pretty clearly wrong about that, unless you give me a reason why they're right.
04-759 +++$+++ 30473 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, what -- our position is that, although they applied the law of municipalities and the State, what they were really doing is applying the Louie doctrine, which says that when you cannot identify a private actor, then the best evidence of what the State's law is, with respect to the actions of a party in the same circumstances, is to look at the State liability, and that --
04-759 +++$+++ 30474 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's a good question. Suppose you really had a person who -- there's just no comparable private person in like circumstances. I can't even imagine what that could be. Maybe you could imagine. But I was trying to think of some secret research on turning people invisible or something for military purposes. I mean, I -- it's just hard -- I mean, hard here, obviously. There is such a person. There are private mine inspectors.
04-759 +++$+++ 30475 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, actually, I'm not aware of any private mine inspectors, but if we want to take that thought --
04-759 +++$+++ 30476 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Maybe there are not --
04-759 +++$+++ 30477 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the private mine inspector had the -- assumed the same duties, so it's under like circumstances, that the Federal mine inspector had here, which was to inspect the mine in its entirety four times per year and to respond to all safety-related complaints and determine whether they present imminent hazards, and to remove the miners from the area -- if those are the characteristics of the private individual under like circumstances, then I concede that would be a better predictor of State -- and if we knew what Arizona would decide in that context, I --
04-759 +++$+++ 30478 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Cotter, I don't -- I don't see, in the opinion, any indication that the Ninth Circuit was doing what you -- what you assert it was trying to do -- namely, to predict what future California law -- locked deep in the bosom of the California Supreme Court, but not yet disclosed to the public -- will hold. It didn't proceed that way at all. It says, generally, the United States can be held liable only when liability was attached to a private actor. However, the United States may be liable, quoting from one of the Ninth Circuit's earlier cases, for the performance of some activities that private persons do not perform when a State or municipal entity would be held liable under the law where the activity occurred. I don't see they are saying, "We are trying to predict what California would do in a private situation." They have set forth a rule that, where there's no cause of action against a private person, we look to whether there would be a cause of action under -- against a State or subdivision of the State.
04-759 +++$+++ 30479 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, I concede that the Court has accurately characterized the opinion. If I remember the cases cited by the opinion, they're Concrete Tie and Hines, which lead directly back to the Louie opinion, which was the decided at the behest of the Government, because, in Louie, there was a law enforcement operator who -- a law enforcement official who failed to stop a drunk driver, and they said, "There is" -- the Government said, "There is no private person here." And, therefore, if you look to Washington State law, which does not impose liability in these circumstances, you get a good idea of what Washington law would rule if there were a private person.
04-759 +++$+++ 30480 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How long ago was that -- was Louie decided?
04-759 +++$+++ 30481 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I believe it was about 20 years ago.
04-759 +++$+++ 30482 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Twenty years ago. And Washington still has not yet made this prediction come true, I gather.
04-759 +++$+++ 30483 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You mean it has not ruled on --
04-759 +++$+++ 30484 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Exactly.
04-759 +++$+++ 30485 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the subject?
04-759 +++$+++ 30486 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It has not extended its Government Tort Claims Act to private citizens.
04-759 +++$+++ 30487 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think -- I think that the Federal Tort Claim Act does not apply to private citizens in Washington.
04-759 +++$+++ 30488 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I'm saying the prediction that Louie made had not yet come true. There is still no Washington decision that has done what Louie said it would --
04-759 +++$+++ 30489 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Would not do.
04-759 +++$+++ 30490 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- would be done.
04-759 +++$+++ 30491 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Louie predicted that there would be no liability. And, in fact, I think that that remains the law.
04-759 +++$+++ 30492 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but Louie, according to the SG, says, "We say here that this person is not liable -- the Government is not liable, because, in Washington, Washington would not make a municipality liable," while adding that the law of Washington is that a municipality is liable only if a private person in Washington is liable. So, I wouldn't think Louie is very good authority that the Ninth Circuit thought it was for the proposition that you look not to the private person, but you look to only the municipality.
04-759 +++$+++ 30493 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If I understand Your Honor's --
04-759 +++$+++ 30494 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I'm just --
04-759 +++$+++ 30495 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- point --
04-759 +++$+++ 30496 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- reading from their brief. What they say is, the court stressed that the equivalence is important. The equivalence of what? Under Washington law, State and municipal government entities are liable only to the same extent as a private person. And they cite page 825. And they stress this equivalence, because a finding of immunity for State employees under State law does not determine the scope of the U.S. liability, etcetera.
04-759 +++$+++ 30497 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And, in fact, Your Honor, the equivalence factor in Louie is present in this case.
04-759 +++$+++ 30498 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, anyway, if Louie helps something other than that, it's wrong, too, isn't it? Because what the statute says is, it's a question of looking to the --
04-759 +++$+++ 30499 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We --
04-759 +++$+++ 30500 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- private person.
04-759 +++$+++ 30501 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The respondents concede that the question is "private person under like circumstances." We concede that point. Our point is simply that, on a motion to dismiss, the Ninth Circuit was faced with trying to decide: What would Arizona law be with a private person under like circumstances?
04-759 +++$+++ 30502 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it didn't try to do that. It made no effort to do that. It just said -- it just said the United States may be liable when a State or municipal entity would be held liable. It made no effort to figure out what Washington would do with a private individual.
04-759 +++$+++ 30503 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In the -- in the face of a district court opinion that applied the Good Samaritan statute and threw the case out because no allegation could be made to come within the Good Samaritan statute. So, it seems pretty clear that they're doing something quite different from what you're suggesting.
04-759 +++$+++ 30504 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Roberts, our contention is that the genesis of the doctrine that they applied, and that the Fifth Circuit applies, and that the D.C. circuit applies, is to predict State law, that its purpose is not to expand liability where State law doesn't exist. In fact, if you read the opinion of the Ninth Circuit in this case, it acknowledges that private person is the test. But then it says that when we cannot find a private person, this is what we do. We go look to the State law. And the Crider case says, basically, that when you do that -- from the Fifth Circuit -- what you're doing is looking at the legal principles that are -- you're looking at a factual situation that best articulates the State-law legal principles --
04-759 +++$+++ 30505 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, doesn't that approach -- it doesn't make any sense, because you're only looking at half of the equation. Presumably, if you have a special set of principles for governmental actors, they include immunities and defenses and all that. And you just want the benefit of the liability, but you don't want, I take it, the immunities and defenses that go along with it.
04-759 +++$+++ 30506 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that issue was actually raised in the Henzel case, in the D.C. circuit, where the -- there was a high-speed chase and the officer caused a collision, and what happened was, the Government argued that you can't apply the standard applicable defined duty of the Government, but you can apply the Government -- or the D.C. regulations as to standard of care. And the D.C. Circuit found, no, it would follow Louie and Crider, and say that the best predictor of the State law, when you can't find an analogous private person, is the liability statutes that concern the law enforcement, but, following Indian Towing, it would not apply the gross-negligence standard that the D.C. Circuit had adopted that concerned the officers.
04-759 +++$+++ 30507 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's actually a rather interesting question I don't really know the answer to. The idea is that you can't find an analogous private person. We might have to write something about that. You could say -- you -- there always is an analogous private person. It's impossible to think of an example. The other extreme, you have the Ninth Circuit, which could -- which says as long as the Government was involved in regulation, there is no analogous private person, because private people don't regulate. I would think that was almost certainly wrong. But what is the right way to go about it? Are there such people, or aren't there?
04-759 +++$+++ 30508 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, what I would say in this case is, the absolute wrong way to go about it is on a motion to dismiss, because, unfortunately, the record wasn't developed, which may, in fact, speak to issues that may, in fact, address Arizona law on Good Samaritan, for instance -- the issue of whether, under Arizona law, a duty was assumed, the issue of whether reliance exists. And I have to correct the Solicitor General. The reliance does not merely come from the injured party. The restatement section, section three- -- or the restatement section 324 says reliance is from the other for the injured party. So, in this case --
04-759 +++$+++ 30509 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, doesn't that make it a contract case? If you're talking about the party who's contracted with, say, a private inspector -- I mean, I have a contract, somebody comes and inspects the house for termites, and I assume, if they don't do a good job and the house is damaged, they're liable. But that's under contract, and this is a question of tort liability.
04-759 +++$+++ 30510 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if I may answer with a hypothetical, Your Honor, because we did not get to develop the record, what happened in this case is, the mine method changed. They went from taking the floor to the taking the back. And they ripped out the ground support. So, people were working under unsupported ground. We, because there was a motion to dismiss, never got the opportunity to take the mine operator and said, "Why on Earth" -- the deposition of the mine operator -- "did you think you could do this?"
04-759 +++$+++ 30511 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What --
04-759 +++$+++ 30512 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ "Why on Earth did" --
04-759 +++$+++ 30513 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What was your response to the motion to dismiss? The Government said that you didn't raise, in response to the motion to dismiss, any assertion that private individuals would be liable --
04-759 +++$+++ 30514 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh --
04-759 +++$+++ 30515 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- under State law in this -- in this situation.
04-759 +++$+++ 30516 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, I did not understand the Government to be saying that --
04-759 +++$+++ 30517 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, I -- that's how I understood it.
04-759 +++$+++ 30518 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and it is not true, if that was --
04-759 +++$+++ 30519 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-759 +++$+++ 30520 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- what they said.
04-759 +++$+++ 30521 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What was your response?
04-759 +++$+++ 30522 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our response was that the law -- first, our response was that, under the motion to dismiss, our factual allegations in the complaint have to be accepted, and we alleged all the elements of the Good Samaritan doctrine, and all the elements of the uniquely governmental --
04-759 +++$+++ 30523 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You said that? You said that, "And we have a -- we have asserted all the elements of Good Samaritan"?
04-759 +++$+++ 30524 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-759 +++$+++ 30525 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-759 +++$+++ 30526 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And what happened was, frankly, Judge Browning dismissed, relying, I think, on the -- more on the discretionary function exception, and then the Myers case, out of the Sixth Circuit, saying, as a matter of law, this -- as a matter of Federal law, MSHA is not an assumption of duty by the Government. And I don't know whether this Court is inclined to address that issue or not, but I'd just like to point out on that issue, the Federal Tort Claim Act makes the issue of whether the Government's liable a question of State law. The question is, as we have conceded, whether the mine inspector would be liable if he were a private person, and -- which I think goes to the prior question about, "What if there is no" --
04-759 +++$+++ 30527 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But we can remand for that. What's here is, the Ninth Circuit held that there's liability based on what the liability of a State agent would be, and that's just not the rule.
04-759 +++$+++ 30528 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, if the Court is -- -
04-759 +++$+++ 30529 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, we have to give some instructions as to how the -- as to whether or not the Ninth Circuit is right about that.
04-759 +++$+++ 30530 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the Court --
04-759 +++$+++ 30531 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that's why you're here.
04-759 +++$+++ 30532 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- if the Court is convinced that what the Ninth Circuit did was not try to predict what private law would -- that -- what private law in Arizona would be, if the Federal mine inspector was a private citizen, then we would concede that that's not the law. But we believe that is what the Ninth Circuit did following those cases -- the Louie case, the Crider case, and all of the cases that were --
04-759 +++$+++ 30533 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ See, that's exactly what's concerning me, and I don't quite see my way to an answer. Suppose we do send it back because we think just what you said wasn't so is so, they have to now into this. They'll have to go into it. Should we suggest, "Look, you try harder to find a private analogy, because there's almost always a private analogy." Every Government official has some similarities to private people, and some differences. So, we could emphasize that, or we could suggest, "No, actually, there are quite a few differences." I don't have much of a feeling for which way to go on that.
04-759 +++$+++ 30534 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if you do decide to remand -- which if the issue of the Good Samaritan doctrine or assumption of duty under Arizona law is going to be addressed, we recommend that there is a remand -- we would urge the Court, as a matter of first -- the first rule is to instruct the Ninth Circuit that these are badly -- these are cases that are badly decided on motions to dismiss for failure to state a claim. Because the Arizona law on when someone cites a -- adopts a duty -- the Daggett case or the Papastathis case -- are all fact-intensive.
04-759 +++$+++ 30535 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, that's not -- that's not what I've been asking.
04-759 +++$+++ 30536 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
04-759 +++$+++ 30537 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And to expose everything I was -- perhaps the better thing is to say, "There's always a private analogy," or try very hard, because if you really found an instance there was no private analogy to, maybe there would be no recovery, because the statute simply speaks about private party.
04-759 +++$+++ 30538 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With all due respect, Your Honor --
04-759 +++$+++ 30539 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And this is a statute designed to give people recovery --
04-759 +++$+++ 30540 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure.
04-759 +++$+++ 30541 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- when people commit torts.
04-759 +++$+++ 30542 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's a -- it's a statute where -- with a broad waiver intended. But I actually think if the -- if the rule were "If there's no private analogy, there's no recovery," it sort of reverses the statute.
04-759 +++$+++ 30543 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It does.
04-759 +++$+++ 30544 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, it does, but that -- would we end up there, because of the way the statute's written? You avoid the whole matter if you say, "Look for the closest private person, no matter what." And maybe that's --
04-759 +++$+++ 30545 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I concede that point, Your Honor.
04-759 +++$+++ 30546 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay, who's your -- what's your best analog?
04-759 +++$+++ 30547 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My best analogy here is a private mine inspector who has the same duties as a Federal mine inspector, which, in this case, who -- you could say someone who contracted --
04-759 +++$+++ 30548 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Whom does he work for? Do mines hire these people, or does he work for the liability carrier, which I would have expected? I mean, if we're going to make the kind of suggestion that Justice Breyer says maybe we ought to make, we ought to have something in mind. And is it -- is it the -- is it an inspector who works for the liability carrier who would be the closest analog in your case?
04-759 +++$+++ 30549 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, earlier, the suggestion was made, "What happens if the Government" -- I thought the suggestion was, "What if the Government outsources mine inspections? What if, instead of" --
04-759 +++$+++ 30550 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but this -- that's all hypothetical. You're litigating this case. You must have something in mind. Whom do you have in mind as your best analog?
04-759 +++$+++ 30551 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Arizona State mine inspector. The --
04-759 +++$+++ 30552 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's your second-best analog? [Laughter.]
04-759 +++$+++ 30553 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, my second-best analog, I guess, would be a workers' comp carrier, an insurer, or --
04-759 +++$+++ 30554 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I thought you had assumed that, under the Arizona law, you could rely on the Good Samaritan doctrine --
04-759 +++$+++ 30555 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe we can rely --
04-759 +++$+++ 30556 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I thought that, at least, would be open on remand.
04-759 +++$+++ 30557 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
04-759 +++$+++ 30558 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it necessary that we go further than that?
04-759 +++$+++ 30559 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think it's necessary, if the Court doesn't want to address whether the Government always needs to -- or the courts always need to find a private person. The Good --
04-759 +++$+++ 30560 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Aren't there, in all kinds of situations, private inspectors? One of them that was mentioned in the briefs, I think, is an elevator operator.
04-759 +++$+++ 30561 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure.
04-759 +++$+++ 30562 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Elevator operation inspector. So, there's lots of private inspectors. There may not be private mine inspectors. I don't know about that. But this would be inspector liability.
04-759 +++$+++ 30563 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in the restatement, section 324, under "Assumption of a Duty," gives an example. And the example is, if a private company hires a scaffolding inspector, and the scaffolding inspector does a negligent inspection, and a worker falls and is injured, the worker has a claim against the scaffolding inspector. And then, under the reliance component is --
04-759 +++$+++ 30564 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but only -- presumably, only if they meet the requirements of the Good Samaritan law.
04-759 +++$+++ 30565 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe --
04-759 +++$+++ 30566 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which -- they would have to show that there was an increase in the risk of harm, which I think it would not be true in your hypothetical, or that there was a duty owed to the third party -- the scaffolding inspector is presumably hired by the contractor, not by the employees -- or there was reliance.
04-759 +++$+++ 30567 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that that's true, Your Honor, although I'd like to read a quote from Papastathis, which is -- the court relied on. The quote is just this, "Numerous cases have held that once a party gratuitously agrees to inspect and the third party is subsequently injured, that party can be held liable for its negligent inspection." There is a host of Arizona case law on assumed duties. And the case I would refer to is Martinez versus State, which is simply a case where a road washes out, and the Government reroutes the road for a -- for a period of time across a private land, and, for a period of time, grades it, and then stops grading it. And, in that circumstance, the Government was held liable simply for having, for that period of the time, assumed a duty. And there wasn't an analysis in the Martinez case of whether or not the elements of section 324(a) were met or not.
04-759 +++$+++ 30568 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, we're just debating now whether or not you've satisfied the requirements of the Good Samaritan statute.
04-759 +++$+++ 30569 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Or whether there are alternative theories of liability available under Arizona State law.
04-759 +++$+++ 30570 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did you argue -- I mean, you lost in the district court on the Good Samaritan statute.
04-759 +++$+++ 30571 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-759 +++$+++ 30572 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On your appeal, did you argue that that was wrong?
04-759 +++$+++ 30573 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. And the Ninth Circuit simply didn't reach that issue.
04-759 +++$+++ 30574 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you said the district court went off on discretionary function?
04-759 +++$+++ 30575 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It went off primarily under discretionary function, but then in addressing the Arizona -- the Good Samaritan doctrine under Arizona, it relied on the Myers case, which is a case in which -- the Sixth Circuit said that when you have the case -- or safety inspections like the Federal -- like MSHA, that court would adopt a actor, slash, monitor dichotomy so that there could never be an assumption of duty under -- because the Government was only in a monitor function. And, to the extent that that's at issue, Your Honor, I would think that that would be a question, under State law, of whether the Government had assumed the duty. And if not under State law, it would be a question under the Federal Tort Claim of whether an -- there is an exception that has been met. And there is no exception. I think that this Court, in Berkovitz, said that regulatory conduct can be actionable under the Federal Tort Claim if it -- the discretion isn't met -- or the discretionary exception isn't met. And in this case there was an absolute obligation to make these inspections and an absolute failure to do so.
04-759 +++$+++ 30576 +++$+++ TRUE +++$+++ MR. COTTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if there are -- or the Court -- if there's no further questions, I'd like to --
04-759 +++$+++ 30577 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Cotter. Ms. Maynard, you have five minutes left.
04-759 +++$+++ 30579 +++$+++ FALSE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. If I may just start where he ended. Just to be clear, Justice Scalia, the point that I was making is, the only private-person law to which respondents pointed below was that of the Good Samaritan doctrine. That -- whether or not respondents can make out a claim under the Good Samaritan doctrine would require meeting all of the elements of that doctrine. That would be primarily a State-law question, but we do think there's an ingredient of a Federal question there, especially, for example, in deciding whether or not they reasonably and detrimentally relied. Other courts of appeals, including the Sixth Circuit, in Myers and Raymer, have said that the language of the Mine Act is relevant to whether or not a party can simply rely on the very -- just the bare existence of the MSHA -- of MSHA's existence and its inspections, and held that, given the language in the Mine Act that expressly leaves the safety of the mine to the -- primarily to the mine operators through the assistance of the miners, that it would be unreasonable to rely. Here, it -- this was completely appropriately decided by the district court on a motion to dismiss, because they came forward with affidavits that say nothing more than that they relied upon the existence of the MSHA scheme. And that, under Arizona's Good Samaritan law in -- - taking into account the Federal scheme, is insufficient, because it is insufficient under Arizona law.
04-759 +++$+++ 30580 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You consider affidavits on a motion to dismiss?
04-759 +++$+++ 30581 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This is a 12(b)(1) and a 12(b)(6) motion to dismiss, Mr. Chief Justice, because it's also a jurisdictional issue, so it is possible. They came forward with these reliance affidavits, and I think it's significant how little they say. The reliance affidavits would obviously not require any discovery on their part to indicate what their actions were, in terms of --
04-759 +++$+++ 30582 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what --
04-759 +++$+++ 30583 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- upon which they were relying.
04-759 +++$+++ 30584 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- what argument do you have to avoid a remand for consideration of liability under the Good Samaritan law?
04-759 +++$+++ 30585 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's -- that's one of our arguments, that they can't meet the Good Samaritan law --
04-759 +++$+++ 30586 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But they didn't have a chance to argue that before the court of appeals, right?
04-759 +++$+++ 30587 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, no, Your Honor, they argued that before the --
04-759 +++$+++ 30588 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But court of appeals didn't decide that.
04-759 +++$+++ 30589 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The court of appeals didn't decide that. But, tellingly, I think, as Justice Breyer suggested, the court of appeals -- and I think your question has suggested -- it seems that they think there is no liability there. The premise of the court of appeals' holding was that there is no private-party analog. Justice Breyer, if there is no private-party analog, if you conclude that this type of regulatory activity has no private-party analog, the only appropriate answer under the Federal Tort Claims Act is that the United States cannot be liable. You cannot --
04-759 +++$+++ 30590 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you think there is a private-party analog.
04-759 +++$+++ 30591 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We think that the Good Samaritan doctrine affords an -- under this Court's interpretation, in Indian Towing, of the "like circumstances" doctrine, we think one could look to the Good Samaritan principles, under which we think we would prevail. If I may, Justice Ginsburg, return --
04-759 +++$+++ 30592 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Saying that there is no private-party analog is not quite the same thing as saying you lose under what we consider to be the proper private-party analog -- namely, Good Samaritan.
04-759 +++$+++ 30593 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We believe that once -- I'm not sure I get the vein of your question, but I'll -- the -- if there is no private-party analog, so there's no private-person in like circumstances, the United States cannot be held liable. If there is a private-party in like circumstances, one then must apply that law to the facts and the claims and determine whether or not the United States is liable.
04-759 +++$+++ 30594 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which the court of appeals hasn't done.
04-759 +++$+++ 30595 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the district court did here, Your Honor, and held that we weren't liable. If the Court's going to decide this on the record, we think the Court can decide on this record that there could not be Good Samaritan law under Arizona law.
04-759 +++$+++ 30596 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But we didn't bring cert on that question.
04-759 +++$+++ 30597 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That was -- I think it's fairly encompassed. The -- it -- the question presented is whether or not the court applied -- should have looked to private-person law. I think if you say yes, you could look to that law and conclude on this record that there can't be liability. Justice Ginsburg, if I may turn back to your point about Muniz, I think you're correct that they didn't specifically -- the court in that case didn't specifically suggest what the private analog might be on remand, although it did suggest perhaps it would be personal-injury law as it relates to private persons in like circumstances. But I think the important point in Muniz on that point is akin to what I was just making to Justice Scalia, which is that the court said there is consent to sue here, so the prisoners may sue. Whether or not they're going to be able to ultimately make out a claim under private-person law is a different question. So, the Federal Tort Claims Act is not a guarantee of monetary compensation from the United States. And one cannot do what the Ninth Circuit did, which is to keep looking for possible analogies in -- under which the result would be that the United States is held liable. Sometimes, just like with private-party analogs, just like with private safety inspectors, the answer will be: the private party can't be held liable under the applicable private-person law. And in -- the private-person law in Arizona, I think it's clear, is the Good -- I'm sorry. My Time is up.
04-759 +++$+++ 30598 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Ms. Maynard. The case is submitted.
04-805 +++$+++ 30603 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first in Texaco Inc. v. Dagher and Shell Oil v. Dagher. Mr. Nager.
04-805 +++$+++ 30605 +++$+++ FALSE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: In this case, the Court of Appeals of the Ninth Circuit held that a decision to unify the prices charged for the two branded gasoline products sold by a joint venture created by Shell and Texaco could be deemed a per se violation of section 1 of the Sherman Act. The Ninth Circuit's decision is plainly wrong. A joint venture has to be able to and is entitled to create and set the prices for the products that it sells.
04-805 +++$+++ 30606 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Nager, on -- on that point, I have a factual question and I figured I'd get it -- excuse me -- get it out on the table at the beginning so you'd know what at least is bothering me. The nub -- the nub of your factual argument is, as you just -- just stated it, there's a joint venture here and joint ventures price their products. The factual question that I have is this. This is -- or the preface for it is this. This is a joint venture that has continued to market, in effect, the same product that the -- that the two companies marketed beforehand, and it has done so, ostensibly, under the old brand names. Therefore, the fact that there is a joint venture doesn't necessarily disclose that there is a new product as -- as might be the case normally which you would expect the joint venture to set its own price for. Therefore, it seems to me that if the joint venture is clearly going to cover pricing, the joint venture agreements, the documents that indicated the joint venture at the beginning, should have mentioned pricing. And yet, my understanding is that they did not do so, and in fact, the claim on the other side, as I recall the briefs, is that when the Government looked at the joint venture, prior to its going into effect, nothing was said about fixing prices -- setting prices. So my question is, did the joint venture, as indicated by documentation, say in any -- so many words that the joint venture is going to set prices for these two -- or for the -- the -- whatever it -- whatever it sells? And -- and number two, if -- if the answer to that is no, should we regard the joint venture as covering pricing?
04-805 +++$+++ 30607 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe the -- the short answer to your question is -- is yes.
04-805 +++$+++ 30608 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There were two questions. Which? (Laughter.)
04-805 +++$+++ 30609 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The first question.
04-805 +++$+++ 30610 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
04-805 +++$+++ 30611 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it is undeniable -- and Mr. Minear can speak on behalf of the FTC to this. I think it is undisputed that the Government understood that this joint venture was a consolidation of both the refining assets of the two companies, as well as the marketing functions of the two companies, and that it would own the gasoline and it would decide how to sell it and what price to sell it at. I don't --
04-805 +++$+++ 30612 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is there a document that we could look at that -- that says that?
04-805 +++$+++ 30613 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know off the top of my head, Justice Souter, whether there's a specific document that says marketing includes pricing. But I don't think that anyone had any doubt that this included pricing. And indeed, the respondents, of course, in bringing their challenge, haven't framed this as a challenge to the ability and right of the joint venture to set its prices. What they've challenged is the subsequent decision that was made to sell the Texaco-branded Equilon gasoline and the Shell-branded Equilon gasoline at the same price.
04-805 +++$+++ 30614 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, taking that point just a bit further, your reply brief -- the reply brief for -- for Shell says that the respondent has conceded that the pricing decision to sell at the same price was not made till 8 months afterwards. I'm not sure that that's quite a fair statement. That isn't inconsistent with its suggestion that there might have been an agreement even before the joint venture to have single pricing. They just waited until 8 months to do it. So I'm not sure that your yellow brief correctly characterized their position. Tell me if I'm wrong.
04-805 +++$+++ 30615 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I think that that's a -- a fair interpretation of one possible understanding of their brief, Justice Kennedy. I don't think that it matters for this Court in deciding this case whether there was discussions by the owners of the joint venture earlier than the time of September of 1998 whether they were going to unify the prices or not. The -- the important point for this Court is that this was an efficiency-enhancing joint venture. The Ninth Circuit didn't question that. And that in an efficiency-enhancing joint venture, it is entitled to set the prices of its product, whether it decides to do it 8 months after the venture is in operation or 2 months before, as long as what they're doing is setting the prices of the products of the venture itself.
04-805 +++$+++ 30616 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it would depend. That's why -- really it's a question for Mr. Alioto, but I want to know chapter and verse citations. Pan Am and Grace meet before they set up Panagra. Of course, they talk about price. But what do they say? Suppose what they say is you, Panagra, have the power to set price. Normal. You, Panagra, have the power to set price but never below $14 a ticket. That wouldn't be normal. What are they trying to do there? They're trying to protect Grace. So I think a lot would depend on what they said in the preliminary meeting, and of course, what I want to know is this is a summary judgment motion where, as the other side pointed to particular conversations that they made which would say it's more like the second than the first.
04-805 +++$+++ 30617 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what I can say to that, Justice Breyer, is our opponents have repeatedly pointed out in their briefs deposition testimony that the parties refused to discuss price with each other before they had an actual memorandum of understanding out of concerns about the antitrust laws.
04-805 +++$+++ 30618 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It may be, but still at some point they discussed it and I would like to know what they said.
04-805 +++$+++ 30619 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'll have to leave that for the respondents to address for you. But what -- what the court below pointed to was conversations that took place in the spring of 1998 about a strategic marketing initiative. And this is after the formation of Equilon, after Equilon was operational. And at that point, all you conceivably have at that point with the owners of Equilon having left the market is Equilon subject to the direction of its owners setting the prices for its products, and it could sell them as Shell gasoline, it could sell them as Texaco gasoline, it could choose to sell them as something else.
04-805 +++$+++ 30620 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then what did it mean -- I think you said it in your brief -- that there -- both brands were sold exclusively by Equilon after the joint venture created -- was created. Each venturer maintains its own marketing strategy. What was the marketing strategy that each venturer, Shell and Texaco, separately maintained?
04-805 +++$+++ 30621 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure what the reference is, Justice Ginsburg. Once the joint venture existed, Equilon had its own marketing strategy, and Motiva, the other joint venturer, had its own marketing strategy. The -- the role of the owners at that point was on a members committee, which -- as a typical board of directors where the -- each CEO of each joint venture had to present a business plan and obtain approval by the owners of the -- of the joint ventures for the upcoming year.
04-805 +++$+++ 30622 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Were the parties indifferent as to how much of each brand was sold? Texaco didn't care if Shell got 90 percent of the sales? It just didn't care?
04-805 +++$+++ 30623 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think we could say they didn't care because there were, as part of the joint venture agreement, brand management protocols to preserve the equality of the brands. But that was the only limitation, and that's a limitation that could be challenged. Don't misunderstand our position in this case. That was part of the agreement to create the joint venture. That is subject to section 1 of the Sherman Act, but it's challengeable on a rule of reason inquiry because this is an efficiency-enhancing joint venture.
04-805 +++$+++ 30624 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- but if they cared, doesn't that show that there was still an element of competition, but the competition is suppressed if the price is the same?
04-805 +++$+++ 30625 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not in -- not for -- with regard to Equilon because why they care, Justice Kennedy, is that -- that they licensed these brand names to the joint ventures and they maintained control of the asset that they licensed, their name, because they operated in other markets where they weren't in competition with Equilon and Motiva. They did do business in other countries around the world, selling branded gasoline, unbranded gasoline, and other petroleum products. But as with any licensor, they care that the -- that the goodwill that they're licensing is not impaired. So like any licensor, they put restrictions on the ability of -- of the joint ventures to disparage those names or to undermine those names. But the decisions as to how to market and what to sell and at what price to sell was the single entity Equilon in the western United States, and that's why it's not covered by section 1, much less subject to per se analysis.
04-805 +++$+++ 30626 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ One more question and then -- how was it decided how much raw gas would be delivered to the venture by the two parties?
04-805 +++$+++ 30627 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That was a decision made by Equilon. Equilon would purchase petroleum on the open market. It could purchase it from Shell. It could purchase it from Texaco. It could purchase it from British Petroleum. And it -- the -- the petroleum products are bought on the open market in arm's length transactions, sent to the refineries, and then the managers of Equilon or Motiva would make the decision as to which petroleum products to make out of that crude. What's important to remember here is that Sherman Act doesn't apply to any agreement. Under this Court's decision in Copperweld, it applies to decisions between independent actors, that section 1 applies to concerted activity, not to unilateral activity, so that in Copperweld, a parent could not enter into a conspiracy with its wholly owned subsidiary. In Copperweld, the Court -- the Court points out that the officers of a company may enter into agreements with each other, but they don't enter into agreements covered by section 1. They're agreements within a single entity. And what we have here is the same thing that the Court was talking about in Copperweld in getting to its decision in Copperweld, is you have a agreement of Shell and Texaco, which is plainly subject to section 1, to create this joint venture and can be challenged on a rule of reason analysis. But once they have that agreement, you now have the directors of a single entity determining what the prices of its products will be, and that is not subject to further section 1 scrutiny.
04-805 +++$+++ 30628 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, do you acknowledge that the rule of reason analysis of the -- of the initial formation can include a rule of reason analysis of whether it -- it would violate the -- the Sherman Act to -- to have the new entity price both products the same?
04-805 +++$+++ 30629 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Scalia, but I don't think that anyone would ever do that in a rule of reason section 1 analysis. What they'd look at in a rule of reason section 1 analysis is whether the combined entity would have the sufficient market power to engage in supracompetitive pricing. This Court has repeatedly said in section 1 cases it doesn't ask whether the specific price set is a reasonable price --
04-805 +++$+++ 30630 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, that's a surprising concession to me. We -- we found a -- a joint marketing company. All right? And the whole point of this is to set single prices. And you're saying when they -- and the venture, let's say, is approved by the FTC, the joint selling agency. The purpose of it is to set a single price to sell in France or something.
04-805 +++$+++ 30631 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-805 +++$+++ 30632 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you're saying now we're going to go look at their prices that they set and decide if they're reasonable?
04-805 +++$+++ 30633 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what I -- what I tried to say, Justice Breyer -- maybe I should change my answer to no. What I tried to say is -- is that the facts at the -- at -- that are involved in the creation of the joint venture -- all of them can be considered as part of a rule of reason analysis. But what I tried to go on to say to Justice Scalia was no one doing that rule of reason analysis would care about what the specific price is. That isn't what they would look at. What --
04-805 +++$+++ 30634 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You could say you -- you just never get beyond step one. You don't go any further if there's no market power.
04-805 +++$+++ 30635 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. And in this --
04-805 +++$+++ 30636 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Maybe there is.
04-805 +++$+++ 30637 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this particular case, the respondents made a conscious litigation choice in the district court to waive a rule of reason claim. And this case proceeded in the court of appeals with the rule of reason challenge to the creation of the joint venture as waived. The court below didn't question that at all. It accepted it. It accepted that there had been a waiver of a rule of reason challenge, that this efficiency-enhancing joint venture had substantial economic justifications, and what it -- and the only -- the only rule of reason challenge that could have been brought then was waived by these parties. Another case. That's not this case. Another case, a rule of reason inquiry could be brought.
04-805 +++$+++ 30638 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Nager, what if you had a -- a crazy kind of joint venture -- or maybe it wouldn't be so crazy -- in which it was just like this one? The two companies said we're going to form a joint venture to market these products. You know, we'll use one fleet of trucks and -- and we'll have one computer to determine who needs gas and so on. But each company -- each of the -- the principals forming the venture retained the -- the power to determine the price of the gasoline that is sold under their brand. And then 6 months later, the two companies get together and they decide to fix the price. That decision would be subject either to quick look or per se analysis, wouldn't it?
04-805 +++$+++ 30639 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the answer to your question depends upon facts that you haven't stated. If the original joint venture is a sham for a horizontal arrangement --
04-805 +++$+++ 30640 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I'm assuming there -- there are, indeed, efficiencies to be attained by it so that it's not a sham. They just retained -- they said, look, we're -- we're still using our old brands, ostensibly, in the market and we're retaining the power to set the price individually with respect to the gas that is sold under those brands. So no sham.
04-805 +++$+++ 30641 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'm not sure at that point that they've entered into an agreement to share the risks and loss -- of profit and loss from the assets that they're putting together. I mean, this Court's decision in Maricopa County says that that's the critical test.
04-805 +++$+++ 30642 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, are you -- are you saying in practical terms that my hypothesis is -- is just a practical impossibility?
04-805 +++$+++ 30643 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I can't say that because you get to ask the questions.
04-805 +++$+++ 30644 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, no, but -- no. (Laughter.)
04-805 +++$+++ 30645 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Beyond -- be candid. I won't get mad. (Laughter.)
04-805 +++$+++ 30646 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is -- is that -- is that really your -- your point that I've come up with a hypothetical which is just a non-real-world hypothetical?
04-805 +++$+++ 30647 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's a big country, and there are a lot of things that happen out there and so I can't assume that I want you going back to chambers thinking that it can't happen. I want to answer it even if it can happen --
04-805 +++$+++ 30648 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. Assuming it can happen, in -- in that case, would the subsequent agreement as to price be subject to per se or a quick look analysis?
04-805 +++$+++ 30649 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so. It's like a law firm. It's like my law firm. When I join together with my partners, we may agree in our partnership agreement that each partner is going to have some control over what their billing rate is. As long as we have thrown our lot in together and as long as we're sharing the risks and loss of that activity -- that may be a stupid thing --
04-805 +++$+++ 30650 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but there's -- there's one part of the lot that you haven't thrown in together, and that's the pricing lot. In -- in my example, your -- your law firm agreement would be each partner can decide exactly what he wants to charge. If -- if one wants to charge $10,000 an hour and another wants to charge $15 an hour, his choice.
04-805 +++$+++ 30651 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, again, I don't think -- it's hard for me to see very many business persons getting together and entering into such an arrangement.
04-805 +++$+++ 30652 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I agree.
04-805 +++$+++ 30653 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But as long as --
04-805 +++$+++ 30654 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You said we're going to do it on the hypothesis that it's a big country and somewhere out there somebody might do this. If -- if two oil companies did it, quick -- quick look or per se analysis?
04-805 +++$+++ 30655 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I think the answer is -- is that if the -- if the -- the joint venture itself was an efficiency-creating joint venture that can survive rule of reason scrutiny, that business has the right to conduct itself subject to the restrictions that were put in the original agreement. That agreement to reserve the power to the parents would be subject to challenge as part of a rule of reason analysis whether they entered into an agreement later or not, but the challenge goes to the terms upon which the venture is created, not to the operational activities of the venture. Mr. Chief Justice, if I could reserve the remainder of my time.
04-805 +++$+++ 30656 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Nager. Mr. Minear, we'll hear from you.
04-805 +++$+++ 30658 +++$+++ FALSE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The court of appeals erred in this case in -- in its ruling that a alleged agreement between two noncompeting owners of a joint venture respecting price is a per se violation of the Sherman Act. And this is not a per se violation for two particular reasons. First, the venture in this case is not a sham, but rather a lawful efficiency-enhancing integration of economic activity. And second, the parties in this case do not compete with one another or the joint venture in the selling of the product.
04-805 +++$+++ 30659 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Respondents don't concede that the joint venture is lawful, though.
04-805 +++$+++ 30660 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As this case comes to this Court, that's a necessary conclusion of the court of appeals determination. In the district court, the parties -- the respondents had argued that this was a patently anticompetitive joint venture, and the district court rejected that, and it said at page 68 of the Texaco petition appendix that no reasonable jury could find that this joint venture is patently anticompetitive. And it further found that respondents did not make a rule of reason challenge to the legitimacy of the joint venture. So as the case came to the court of appeals, it came to it with that ruling, and the court of appeals itself at pages 4a and 5a of the petition appendix --
04-805 +++$+++ 30661 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, in the Citizens Publishing case, it wasn't a necessary predicate of the Court's ruling there to find that the joint venture was unlawful, was it?
04-805 +++$+++ 30662 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it wasn't, but we don't think that Citizens Publishing has a direct bearing on the case here. This Court's reasoning with regard to per se analysis and joint ventures have evolved beyond the simple statement that was made in Citizens Publishing. Instead, the Court looks to the question of whether or not the agreement at issue is plainly anticompetitive. And as this Court's decisions in cases such as BMI and NCAA have recognized, the -- simply attaching the moniker of price fixing or price unification is not sufficient to answer the question, the fundamental question here, which is, is there actually a fixing of prices between two parties that are in competition? That's not the case here. The price unification agreement that's alleged in this case is -- arises out of a joint venture in which, by the very nature of the joint venture itself, the two participants no longer compete, and in the absence of such competition, this is much like a merger. And in the same way that if the two parties had merged their downstream operations, they would be able to choose whatever prices that they chose. Likewise, the same applies with regard to the joint venture, and it's particularly true that this cannot be subject to a per se analysis.
04-805 +++$+++ 30663 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the two parties obviously don't compete within the terms of the joint venture, but they compete more generally.
04-805 +++$+++ 30664 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. And with regard to --
04-805 +++$+++ 30665 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you couldn't have two companies say we're not going to -- we're going to have a joint venture on this corner, but in -- you know, down the block, we're going to compete, and then it's all right to set prices on this corner but not down the block.
04-805 +++$+++ 30666 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. And so an agreement outside the joint venture to take -- to enter into anticompetitive activity outside the joint venture is subject to further analysis.
04-805 +++$+++ 30667 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But didn't we have competition even within the joint venture for a few months? Because -- correct me if I'm wrong on the facts. I thought for a few months the -- the price differential was maintained. I think there was a 2 cent price differential or something like that. And so long as that was maintained, weren't they competing?
04-805 +++$+++ 30668 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. The -- the decision, once the joint venture took effect, as to how the products would be priced, was simply an allocation of the profits of the joint venture. There's no actual competition between Texaco and Shell. That was simply the formula for determining --
04-805 +++$+++ 30669 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wasn't there competition in -- in the -- in the retail market? I mean, if I had two stations in front of me and one was selling gas 2 cents cheaper, I'd -- I'd go to the one that was 2 cents lower. Isn't that competition?
04-805 +++$+++ 30670 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. But in -- in that regard, there's competition at the pump, but there's no competition -- as between those two gas stations, but there's no competition between the owners of the joint venture here, Texaco and Shell.
04-805 +++$+++ 30671 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because that differential was not reflected in what their agreement provided that each could respectively take out of the joint venture.
04-805 +++$+++ 30672 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right.
04-805 +++$+++ 30673 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's exactly right. I would have thought there's no competition because there are not two independent decision-makers.
04-805 +++$+++ 30674 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-805 +++$+++ 30675 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It has nothing to do with the prices that end up.
04-805 +++$+++ 30676 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And in fact --
04-805 +++$+++ 30677 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Maybe you could explain to me how this did work. The -- the -- my understanding, which might be not correct, is we have some facilities that refine gasoline and there are some people who take the gasoline that is refined and they sell it to gas stations. Now, those facilities and those people now work for one hierarchy of officials called Equilon. Is that right?
04-805 +++$+++ 30678 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is all correct.
04-805 +++$+++ 30679 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. So somebody has to say what price it's being sold at. Equilon's gas. Who decides it?
04-805 +++$+++ 30680 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's the factual dispute that the court of appeals recognized in this case.
04-805 +++$+++ 30681 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. What is it?
04-805 +++$+++ 30682 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Texaco and Shell take the position that simply this is a decision that's made by the owners of Equilon or Equilon itself --
04-805 +++$+++ 30683 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. I imagine there are some human beings in Equilon called marketers, and those human beings in Equilon who work for Equilon would say Equilon will sell the refined gasoline to gas stations at such-and-such prices. That's normally how a company works. Is there something different about this?
04-805 +++$+++ 30684 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, there isn't. And in fact, that is why this cannot be analyzed under the per se rule. This is simply a situation in which a single company is selecting the prices of its -- of its --
04-805 +++$+++ 30685 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is their view of it?
04-805 +++$+++ 30686 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Respondents' view is that there was an agreement that was entered into, an alleged agreement, at the time of formation of this entity, in which Texaco and Shell agreed to set the Texaco product and the Shell product at the same price. And the United States' response to that is that cannot be a per se violation of the antitrust laws. That is simply -- there -- because the parties are not competing with one another, it doesn't make any difference whether or not they've agreed to set it as the same price or different prices. It simply is irrelevant to the anticompetitive --
04-805 +++$+++ 30687 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The Texaco product being a product that comes out of refineries that previously belonged to Texaco or the Texaco product being gasoline that comes out of either refinery but is sold to stations labeled Texaco, or both? Which?
04-805 +++$+++ 30688 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is more the latter, Your Honor, that what happens in these cases the refineries refine unbranded gasoline. They send it to distribution centers, the terminals, and at that point additives are added and the gasoline then is sold as either Texaco or Shell gasoline.
04-805 +++$+++ 30689 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. I could see how that could be a violation because it's possible that Equilon, if left on its own, would decide that its best marketing strategy was sometimes to set a differential. But now they can't do that because the two parents have agreed that they can't.
04-805 +++$+++ 30690 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But that is simply the choice that the owners --
04-805 +++$+++ 30691 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that what happened?
04-805 +++$+++ 30692 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is -- would be the same as if the owners or the shareholders made a decision about how two different products --
04-805 +++$+++ 30693 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That would be rather like Pan American and Grace saying that, Panagra, charge whatever price you want, but above all, don't go below $50 because remember, we, Grace, have some ships out there and we want people to take the ships.
04-805 +++$+++ 30694 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, in that situation there could be an antitrust violation, but it would not be a per se violation. It would be a rule of reason violation. And as this case comes to this Court, the question is whether is there -- there was a per se violation of the antitrust laws, and we cannot say that this agreement, if it exists, was so plainly anticompetitive that it can be condemned without a further inquiry into the nature of the relationship here. I'd like to point out also the court of appeals erred further by trying to limit the effects of its per se ruling by invoking the ancillary restraints doctrine. The ancillary restraints doctrine does not apply here. It applies to a situation that Justice Souter referred to earlier where if the two parties entered into a joint venture and then the owners of the joint venture agreed to some agreement outside of the joint venture -- for instance, to -- to set the price of their products outside the joint venture -- in that situation, under the ancillary restraints doctrine, the question would be, is that particular agreement reasonably necessary for -- to fulfill the purposes of the joint venture? But that's not what we have here. The agreement here goes to the conduct of the venture itself, and even under a rule of reason analysis, the inquiry would be, first, what is the nature of the agreement? Does it have anticompetitive effects? And are those anticompetitive effects outweighed by other procompetitive benefits? That is the type of analysis that would be made in this case if a rule of reason analysis was invoked by respondents. They have not done that in this case, and the same rule -- the same reasoning applies with respect to the quick look doctrine. In both of those cases, there simply is not a basis for finding a antitrust violation, and this Court should reverse the finding of the -- the judgment of the court of appeals and reinstate the judgment of the district court granting summary judgment to petitioners. This case --
04-805 +++$+++ 30695 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Minear, you've indicated that in the first 8 months, when there was differential pricing, you said that was the way to allocate profits. I thought they shared the profits on some other basis.
04-805 +++$+++ 30696 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If I said that, I misspoke. The profits were shared based on a ratio of the contributions of -- of assets that were devoted to the joint venture. What I meant to say, rather, was it could have been more like a performance-based pricing mechanism, but it does -- it had no bearing on the -- the relative profits that either firm would make. It was simply a pricing decision. Equilon had to price its products at some price, and so initially it set it at some -- whatever prices they may have been. But ultimately the pricing decision is -- simply does not have anticompetitive significance here. I would like to emphasize this case -- thank you, Your Honor.
04-805 +++$+++ 30697 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Minear. Mr. Alioto.
04-805 +++$+++ 30699 +++$+++ FALSE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Justice Souter, in answer to your question whether or not they advised that they were going to fix the prices when they formed the venture, the answer is no. In answer to your question whether or not they had any document advising the Government that they intended to fix the prices, the answer is no.
04-805 +++$+++ 30700 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't -- I don't really -- who -- who would set the price if it was not -- if it was not the joint venture?
04-805 +++$+++ 30701 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Shell and Texaco fixed the price, if it please -- if it please Your Honor. Under the brand management --
04-805 +++$+++ 30702 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The joint venture owns the gasoline. Okay? And it owns the gas stations, those that aren't independent stations. And somebody else is going to set the price for the gas that the joint venture owns? Wouldn't you need some separate agreement that clearly sets that forth?
04-805 +++$+++ 30703 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, and at page 5 of our brief, we pointed that out. There were two parts to it. Under the agreement -- and if you'll look at page 5 of our brief, we have both of the agreements. And under those agreements -- under those agreements, it was necessary that the -- I'm sorry. At page 7. Under those agreements, if the Court will look at it, first of all, it says, the company's business shall be conducted by the CEO and other officers of the company, subject to the direction by, and in accordance with the policies, business plans, and budgets approved by Shell and Texaco -- they said the members -- acting by and through the members committee. That's Shell and Texaco. But more importantly --
04-805 +++$+++ 30704 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's the board of directors. Isn't it? Isn't the members committee the board of directors of -- of the joint venture?
04-805 +++$+++ 30705 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the board of directors are Shell and Texaco and if they are the ones who are -- the next statement, Your Honor -- the -- they -- they must -- the company must follow the policies, strategies, and standards established by the members committee. The members committee is Shell and Texaco and Saudi.
04-805 +++$+++ 30706 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's because it's a joint venture.
04-805 +++$+++ 30707 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A joint --
04-805 +++$+++ 30708 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's the nature of a joint venture. The board of directors is composed of people representing the various elements of the joint venture.
04-805 +++$+++ 30709 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The pricing didn't --
04-805 +++$+++ 30710 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There's nothing subversive about that.
04-805 +++$+++ 30711 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The pricing didn't have anything to do with -- if it please the Court, the pricing didn't anything to do with the joint venture. On page 12 --
04-805 +++$+++ 30712 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but isn't -- isn't it expectable? I mean -- and this is -- I think this is Justice Scalia's -- isn't it -- isn't it expectable that if you don't have an agreement that clearly says the two -- the two joint venturers, respectively, retain the right to -- to price products sold to the consumer under their brand name, that in fact it is the joint venture that will price the products?
04-805 +++$+++ 30713 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor.
04-805 +++$+++ 30714 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And therefore, it is a decision of the joint venture, not of the -- the two original principals.
04-805 +++$+++ 30715 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, for a couple of reasons. First of all, in Citizens Publishing, that did not exist. This Court did not abolish the joint venture there. What it did was it cut out the price-fixing part of it only. Just as the lower court said, the joint venture there does not depend upon --
04-805 +++$+++ 30716 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Citizens -- Citizens Publishing did not have a joint venture that had advance approval from the FTC. It had --
04-805 +++$+++ 30717 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, Your Honor.
04-805 +++$+++ 30718 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I think that makes a big difference. I mean, the FTC blessed this and said it was okay. They asked for certain adjustments. Those were made. One of them was not, that you had to maintain a differential in the price between Texaco and Shell.
04-805 +++$+++ 30719 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If it please Your Honor, there are many times in which this Court has said that the FTC does not have the authority or power to grant immunity from antitrust violations. In --
04-805 +++$+++ 30720 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the FTC, which is the expert agency, said we don't think this joint venture is an antitrust violation. Don't we owe some respect to that determination, which was absent in Citizens Publishing?
04-805 +++$+++ 30721 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, but I believe also that you should have -- give some respect, too, to this Court's prior orders and this Court's prior decisions. In Citizens Publishing, the Court left alone the joint venture, and it separated out the pricing and took it out and cut it out.
04-805 +++$+++ 30722 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but that's because the joint venture did not include -- did not include a merging of the product as it did here. Here, the gasoline from both of them was merged into one gasoline, which was sold and the profit of which was divided between them. In -- in Citizens Publishing, each of the newspapers continued to sell its own newspaper and to -- and to reap whatever profit it could make from its own newspaper. That's fundamentally different from here. There -- there still is competition between the two newspapers.
04-805 +++$+++ 30723 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In all due respect, Justice Scalia, they did not join the gasoline. The gasoline was separate and apart. They -- that was very important. They maintained them separate and apart. They competed separately for at least 8 months.
04-805 +++$+++ 30724 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but Mr. Minear --
04-805 +++$+++ 30725 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So if they had combined and if they had agreed in the joint venture to sell a new brand of gasoline, Equilon gasoline, of course, they would -- the joint venture would be free to set the price of that.
04-805 +++$+++ 30726 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that that's probably correct, Mr. Chief Justice. However, it is not the kind of thing that this Court talked about in BMI and the other cases.
04-805 +++$+++ 30727 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So if that's correct -- if -- if that's correct, what is the difference if the joint venture decides that it's going -- they're going to make more money having two separate brands and even though it's Equilon gas, the people are going to think it's different because some people have always bought from Texaco and others from Shell? It's not going to affect how the profits are distributed. It's still going to be the same whether it's Equilon gas or Texaco and Shell. Why does the joint venture lose the authority to set the price of its product?
04-805 +++$+++ 30728 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The reason it loses the authority, Your Honor, is that there has to be some kind of reasonably necessary means so they -- it has to be reasonably necessary that they need to price the products in order to make the joint venture work. On page 12, we gave you the testimony where the chief executive officer of Texaco and others specifically said that the -- that the pricing had nothing to do with the cost savings or the --
04-805 +++$+++ 30729 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, that's right.
04-805 +++$+++ 30730 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's true, but Mr. Minear had a response to that, it seems to me, a kind of blanket response, and he said that's only relevant unless you are dealing with pricing decisions between competitors. And the one thing, if I understood him correctly, that is clear is that under the undisputed portions of the joint venture agreement, the price at which the products were sold, high, low, differential, no differential, did not affect the distribution of profits as between the two joint venturers. Therefore, they were not competing with respect to the pricing, and therefore, the -- your -- in effect, your whole argument collapses because you don't have, on any analysis, an agreement between two competitors.
04-805 +++$+++ 30731 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Justice Souter, Citizens Publishing -- they did exactly the same thing. They pooled their profits under a -- under a formula that was very similar to the formula here.
04-805 +++$+++ 30732 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they were competitors. They were -- each one of them sold its own newspaper. All they merged was -- was their publishing facilities. And when they agreed separately not to -- to charge the same price for the newspaper, that was not part of the joint venture. That was, indeed, an agreement between competitors. There were two separate newspapers selling on the basis of their own distribution system and so forth.
04-805 +++$+++ 30733 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And the same existed here, Justice Scalia. Shell and Texaco were -- operated basically independently for at least 8 months, and certainly before they were major competitors. But look what happened here. All of the costs that were -- all of the cost savings in this situation -- there are -- to show how -- to show the anticompetitive effects of what happened, in this case, the crude oil was down to its lowest since the Depression. The costs were being reduced under the so-called joint venture substantially. Plus, there was excess supply.
04-805 +++$+++ 30734 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me go back for a second. I'm just trying to get it clear. My -- my belief -- I've always thought that Citizens Publishing was a case where the district court said that the formation of the joint operating venture -- the basic formation, which involved a stock acquisition -- violated section 7. And then they created a decree. And the question was -- for the Supreme Court was whether the district court was right in holding there was a section 7 violation. Now -- now, maybe I'm wrong on that. I'll go back and look at it.
04-805 +++$+++ 30735 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Breyer.
04-805 +++$+++ 30736 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If so, if I'm right on it, then what we're lacking from your point of view here is a claim that this whole joint venture is unlawful. And I agree with you. If you make that claim, I don't think the FTC can insulate it, I guess, unless there's something I don't know about, but you're not making the claim anyway. So here, unlike Citizens Publishing, we're -- we have to deal with this on the assumption that the joint venture is lawful.
04-805 +++$+++ 30737 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Even --
04-805 +++$+++ 30738 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't see how to get out of that, but maybe you can tell me I can. But wait. Now, what I'm trying to get at is what precisely is your claim, given the lawfulness of the joint venture? One part I see. One part I see is that the people who are setting the prices are the board of directors of a venture company who represent Shell and Texaco. Now, that might run up against Justice Scalia's objection. But I want to sure -- sure I have all of them. That is, I want to know if there's some other claim you're making here in respect to an agreement between Shell and Texaco as to Equilon's prices. And if so, what is it and where is the reference in the record?
04-805 +++$+++ 30739 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Taking each of the questions that you asked, Justice Breyer, first, Citizens Publishing was section 1 and 2 and subsequently --
04-805 +++$+++ 30740 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ 7.
04-805 +++$+++ 30741 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- section 7. Okay. Second, in Citizens Publishing, the lawfulness of the joint venture, like here, even if you posit that the joint venture is lawful, it -- the pricing must be -- must be necessary in order to achieve those -- those savings in order to be justified. When there's no connection, it's just a straight, naked restraint, and even if it were -- even if the joint venture were lawful here, even if that were so and they had all these cost savings, in the face of all of those lowered costs and the lowest crude oil and the excess supply, they not only took the price leader and the price cutter, they brought them to the same level, and then they increased the price another 67 percent in major markets --
04-805 +++$+++ 30742 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I concede that it would have been perfectly legal for them to do that if they called all of their gasoline Equilon gasoline because they owned all the gas and the profits are going to be distributed to the owner the same way whether they call them Texaco or Shell. Why is it suddenly different because they put different labels on the -- keep different labels on the gasoline?
04-805 +++$+++ 30743 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They want to maintain, first of all, their independent identity just like Citizens Publishing. They want to maintain that. They had a standstill agreement you can't merge these. They didn't want to join them. They didn't want to make a new product. They didn't want to do that. All they wanted to do was fix the price of gasoline in the United States.
04-805 +++$+++ 30744 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That -- that might be. But I don't want you to forget the last part of my question, which for me was the most important, because I can read Citizens Publishing, but it's going to be tough for me to find in the record any claims that you make that the two companies have agreed as to price, like the Panagra example. That's why I gave it, to put it in your mind. So if there's anything like this that you're claiming, I'd like to know, or is your total claim that the activity of Shell and Texaco in setting the price of Equilon is to have their representatives on the Equilon board of directors tell Equilon what price to sell? Or is there something else? I just need to know. Is it just that, or is there something else in this case?
04-805 +++$+++ 30745 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is more. What the -- Okay. What they did is when -- is when the members decided that they wanted a new plan -- this is after 6 months that they had been operating their joint venture without fixing the price. They then had a program that they submitted that they required Equilon and Motiva to follow. And this was their so-called strategic price plan.
04-805 +++$+++ 30746 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was it the board of directors that did that, or was it something else?
04-805 +++$+++ 30747 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If -- if you want to say that the members committee are the board of directors, Justice Breyer, okay. But in fact and in truth, it is the -- it is Shell and Texaco, independently without any conversation with the representatives of Equilon, who are doing this. What differences this from -- from Northern Securities and -- and any of the other cases in which the board of directors, so-called, were the former major competitors -- what difference what form they take -- and they --
04-805 +++$+++ 30748 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I can understand your argument if we were doing a rule of reason analysis. Is that something that can properly be analyzed on quick look or per se?
04-805 +++$+++ 30749 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Your Honor, because first of all -- first of all, with regard to Citizens Publishing, it is per se. Secondly, with regard to quick look, look what you have. First you analyze the -- as we've said -- as you've said before in your decisions, first you analyze the restraint. What is it? It's a restraint directly on price. It's not covered up any way. It's not something doing something like less supply to fix the price. It's directly at the price. The second thing is, in doing that, is this restraint necessary, not less -- not much -- essential -- is it necessary to -- to get the -- what you're saving on the joint venture? Is it necessary to promote the objectives of the joint venture?
04-805 +++$+++ 30750 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask a very naive question? Is -- this is basically the same commodity, gasoline. They have different attitude -- additives, but basically costs the same. Facilities to produce it are the same. Why should they -- should there be from -- now that they're marketing this under one joint venture, why should they make a difference in the price of what is basically the same commodity?
04-805 +++$+++ 30751 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are two answers to that, Justice Ginsburg. First of all, they are not the same commodity because they said -- they were asked and they said it was different. They maintain the difference. They seem to think that it's different. Secondly --
04-805 +++$+++ 30752 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what difference physically is there other than they have different additive -- additives?
04-805 +++$+++ 30753 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's what they say, Your Honor. Secondly, if Equilon were given the right to do its own pricing, if they had given all of that right to them, and that they weren't the real puppeteers, as it were, that would -- might be a different situation.
04-805 +++$+++ 30754 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but that -- that sounds like the complaint that you're making. We have a problem, say, with -- with the newspapers or whatever it is. It's awfully dicey as to whether they should form this joint venture. It's going to eliminate a lot of competition. But now what you're saying is, look, at the very least, they should structure it in a way that the independent pricing decision is made by Equilon. Don't structure the pricing decision so that bit by bit, day by day it's made out by six people, half of whom represent Shell, half of whom represent Texaco. I can see that as an argument. This is more restrictive than necessary.
04-805 +++$+++ 30755 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course.
04-805 +++$+++ 30756 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, you get me that far, and now I -- I -- but I say why isn't that a rule of reason because you're really fighting the structure of the venture they come up with.
04-805 +++$+++ 30757 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They come -- then, if it please Your Honor, that after I pointed out that the restraint is directly on price, which should be a red flag to anyone, and also that I pointed out that there is no reasonable relationship between the pricing and the cost, the savings, for the joint venture, the last issue on that is whether there's any justification. And what justification is there? There's none.
04-805 +++$+++ 30758 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I don't -- I don't understand, Mr. Alioto, if the profits are -- are not traceable to how much of -- of the two products are sold, if the profits aren't divided that way, why should the two lines be continued to be marketed independently? There's no other analog I can think of in -- in the business world for that. There -- there's no motive to make one any cheaper than the other once the profits are shared evenly, and that's the structure of the venture.
04-805 +++$+++ 30759 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter -- I believe a number of answers to that, Justice Kennedy. First of all, this is so temporary. They've done this for -- they have the right to get out of this in 5 years. They're already out of it. It doesn't exist anymore. They could do it mutually in 5 years. They could do it by themselves after 5. They haven't done it anywhere else in the world. All they're doing is getting together and being able to fix the price. So it's so temporary. What difference does -- really does that make? But, in addition, it's the profit pooling that was also illegal, declared to be illegal by this Court in its 7 to 1 decision in Citizens.
04-805 +++$+++ 30760 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course --
04-805 +++$+++ 30761 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Court didn't like that either.
04-805 +++$+++ 30762 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- they're not able to fix the price unless they have market dominance. I mean, do you think they're just competing with each other? Aren't there other companies selling gasoline?
04-805 +++$+++ 30763 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In all due -- in all --
04-805 +++$+++ 30764 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I don't think that this -- this joint venture would have been allowed if -- if these two companies together dominated the market. Of course, it wouldn't have been allowed.
04-805 +++$+++ 30765 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In all due respect, Justice Scalia, the -- you do not have to have market power to fix prices. That's not a criteria. That is certainly not a predicate. Anybody can fix prices. You fix prices. It's illegal per se. That's the point. And --
04-805 +++$+++ 30766 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You mean fix prices successfully.
04-805 +++$+++ 30767 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They did it. (Laughter.)
04-805 +++$+++ 30768 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Fix -- fix prices and not be an idiot at the same time. (Laughter.)
04-805 +++$+++ 30769 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It wasn't silly for them to, first of all, change the differential that lasted for years, and it wasn't silly for them to increase the price by 70 percent as soon as they made the agreement. There was nothing silly about that. Many people suffered because of it.
04-805 +++$+++ 30770 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ One of the briefs said that the reason for that price hike was that there was an explosion in a refinery in California and outages in others and that there was a market-wide price increase. That was in --
04-805 +++$+++ 30771 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Ginsburg. If -- if -- in the face of the facts that we have in the record -- and that's not a -- I don't know that that's a fact. Let them present it to a jury if they say that that's the reason. When they have a situation where the crude oil is as low as it's ever been since the Depression, when they say they've saved $850 million on their joint venture, and when they say there's excess capacity, even -- you don't need to be Adam Smith to know that the prices are supposed to go down. And what happened instead? They went up and they went up dramatically.
04-805 +++$+++ 30772 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't -- you don't want them to present it to a jury, as I understand it.
04-805 +++$+++ 30773 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Pardon me? Pardon me, Justice?
04-805 +++$+++ 30774 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't want them to present it to a jury. The whole reason that you're here is that you want us to declare a per se violation. You -- you want to put it to a jury?
04-805 +++$+++ 30775 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Per se -- per se violations are put to juries all the time, Justice Scalia. The question is you have to prove that that's what they did. I agree with the Court in this way. I agree. I don't think it -- I don't think it should go to trial. I think this Court should do as it did in Citizens Publishing and make it very plain to everybody that you're not going to allow them to use a joint venture as a cover, even though it is legal --
04-805 +++$+++ 30776 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, Mr. Alioto --
04-805 +++$+++ 30777 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to go do something unlawful.
04-805 +++$+++ 30778 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- Mr. Alioto --
04-805 +++$+++ 30779 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Stevens.
04-805 +++$+++ 30780 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- is it not correct that in the Citizens Publishing case the agreement itself was invalid?
04-805 +++$+++ 30781 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the joint venture was not declared invalid, Justice. The joint venture was preserved. They were allowed to continue to keep the presses together, to keep the trucks together, to -- to use the joint venture. As the court said below and as this Court said, the -- the pricing didn't depend -- depend -- I mean, the joint venture didn't dependent upon the pricing.
04-805 +++$+++ 30782 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why did they get into the discussion of the failing company doctrine in the case?
04-805 +++$+++ 30783 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They've used the failing company doctrine, Your Honor, both in Northern Securities and in Citizens Publishing, and that was the -- that was the reason what -- which they gave initially to join, and that was an issue. And Justice Harlan said, okay, that was an issue. He thought that that should be tried. But that was not pertinent to the question of whether or not the pricing, if it is so divorced -- I -- I must bring -- bring the Court back to this statement by the chief executive officer. He said that the cost savings and all the synergies, the pricing had nothing to do with it. Nothing he said. So if it had nothing to do with it, then what are they doing fixing the price?
04-805 +++$+++ 30784 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but if the Government and everybody agrees that the joint venture is perfectly lawful, I'm still not quite sure your answer to the Chief Justice's question. If they can fix the price of a single brand, why can't they fix the price of -- of two brands at the same time?
04-805 +++$+++ 30785 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me say it in this way, Your Honor. I don't think that Shell and Texaco, if they got together and they say, look it, we'll get rid of both of our gasolines, let's just have one gasoline, and they fixed the price, I think that that would be illegal.
04-805 +++$+++ 30786 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, of course, that's one --
04-805 +++$+++ 30787 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I thought what the --
04-805 +++$+++ 30788 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that's one of the ironic things about this aspect of the law. If they just made the agreement by themselves without forming the joint venture, it would be illegal per se, but if they restrain competition even more by forming a joint venture, then it's perfectly okay. But that's apparently what the law provides.
04-805 +++$+++ 30789 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but if the Court -- (Laughter.)
04-805 +++$+++ 30790 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If it -- if it please the Court, if Equilon -- if Equilon were supposed to come up with a new -- with a new product itself -- I mean, the -- the -- your cases are so clear. BMI was allowed to fix the price because they came up with a product that nobody could do on their own, and that was one of the basic reasons. And even so, the people who made the agreement continued to compete against the -- the so-called product of the -- of the joint venture.
04-805 +++$+++ 30791 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't understand that. I mean, now you're backing away from your concession. If you have a lawful joint venture that's marketing a product, the joint venture has to be able to set the price of the product.
04-805 +++$+++ 30792 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Only if it is necessary to achieve the objectives of the joint venture.
04-805 +++$+++ 30793 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. No, if it's -- if it's a lawful joint venture and it's selling gasoline -- there's no retaining of prior brands -- the joint venture sets the price. And if the -- and all those people you said suffered when Equilon did this, those same number of people would have suffered if they're selling Equilon gasoline at a price determined by the joint venture. It seems to me a very artificial hook that you're trying to hang your case on, which is they retained for presumably legitimate brand competition reasons their separate brands, but that was the decision of the joint venture. And again, the joint venture has to be able to price its product whether it's sold as Equilon or whether it's sold as Texaco or Shell under -- under the same -- same joint venture.
04-805 +++$+++ 30794 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, I believe this Court has been consistently clear on this topic. You cannot even think about or touch price unless you have some specific, necessary connection to the joint venture.
04-805 +++$+++ 30795 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Really? Suppose we walk into a department store. In the department store, we see three perfume counters, and there are three salesmen, one behind each. Do they compete in price? The answer is obvious. Of course, not. Of course --
04-805 +++$+++ 30796 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Three sales persons?
04-805 +++$+++ 30797 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. Three counters. They sell perfume.
04-805 +++$+++ 30798 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-805 +++$+++ 30799 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, they don't compete. But do we know the department store has to be run that way? I mean, maybe some places it isn't. We can't prove it has to be run that way.
04-805 +++$+++ 30800 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, this would be --
04-805 +++$+++ 30801 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Think of a -- think of a mall. Think of a bunch of shops. Maybe it doesn't. Maybe they could compete. The reason that -- the law says they don't have to compete is because the law thinks in general it's a reasonable way to run a department store without forcing your sales people to compete. And similarly, a joint venture. You can't prove they have to have the price set at a central place, but the reason they set it at a central place, because it's a joint venture. And that's seems to me what the cases are consistent with. You tell me which one is it.
04-805 +++$+++ 30802 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The danger -- the danger, Justice Breyer, is this. Is the Court going to say that two major competitors in a major industry, that if they get together from -- for some joint venture, whatever it is, that they're then allowed to fix the price?
04-805 +++$+++ 30803 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, the answer is no. You're right.
04-805 +++$+++ 30804 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, Mr. Alioto, your argument, I think, is assuming that the facts in this case are like the facts in what I think I called my -- my crazy joint venture hypothetical in which the two principals agreed to a joint venture, but they accept in a clear and unequivocal way the pricing decisions. And -- and it seems to me that the -- two things have come out of this argument. Number one, you don't make that assumption, and that assumption is -- is not supported by the facts of this case. And number two, Mr. Minear comes back and says as long as the division of profits under the joint venture agreement does not depend on these pricing decisions, they are not competitors, and therefore it's irrelevant anyway. Doesn't your argument run against -- crash against one or the other or both of those answers?
04-805 +++$+++ 30805 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so. The second one made by counsel for the Government runs directly against Citizens Publishing. That was in the case, Your Honor. And no one has suggested that Citizens Publishing be reversed. And the second part is in fact they did that. They did act independently for at least 8 months.
04-805 +++$+++ 30806 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, they did not change the price for at least 8 months.
04-805 +++$+++ 30807 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. In between, they didn't -- they didn't change the price. They didn't get involved in the price. Then they came up with their program and then they instructed the joint venture to make the prices the same.
04-805 +++$+++ 30808 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Alioto --
04-805 +++$+++ 30809 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not the joint venture doing that.
04-805 +++$+++ 30810 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Who -- who is it that you would have had the price set by?
04-805 +++$+++ 30811 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would be --
04-805 +++$+++ 30812 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, it's their gas. Okay? They're marketing it through their stations. Who -- who would have set the price if -- if we said it's -- it's bad for Equilon to do it?
04-805 +++$+++ 30813 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If they gave them independence and if there were some relationship with the joint venture --
04-805 +++$+++ 30814 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Gave whom independence? Gave whom --
04-805 +++$+++ 30815 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Gave Equilon and to Motiva. If they gave them independence to make their own judgment -- maybe Equilon would like to make Texaco a lower price. Maybe it like to make it a -- a discounter.
04-805 +++$+++ 30816 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They did give them independence.
04-805 +++$+++ 30817 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
04-805 +++$+++ 30818 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That is --
04-805 +++$+++ 30819 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Precisely did not.
04-805 +++$+++ 30820 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They gave their board of directors independence. Now, the board of directors was composed, as -- as boards of directors of joint ventures are, by the parties to the joint ventures.
04-805 +++$+++ 30821 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not -- I'm not sure how it is in other situations. All I'm saying is when you have these two oil companies who are directing this and pretending that the decisions are being independent, that is not the fact in this case. And there's nothing wrong, Justice Souter, for two of these to read the way they did because they did it in our case.
04-805 +++$+++ 30822 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Who -- have you answered my question? Who would you have wanted to set the price in this case?
04-805 +++$+++ 30823 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Shell and Texaco should have done this. They should have said, okay, we're making Equilon for these -- for these cost savings. You, Equilon, can make the price decisions if you want to. Or they could say, you make the gasoline, give it to us, like GM and Toyota, and we will separately price it on our own.
04-805 +++$+++ 30824 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I think they did say the former. You -- you make the price decisions. Equilon.
04-805 +++$+++ 30825 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They did not. Justice -- Justice Scalia, they did not.
04-805 +++$+++ 30826 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your -- your complaint is that Equilon is in reality a joint venture of -- of the two -- the two gasoline companies.
04-805 +++$+++ 30827 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My complaint is --
04-805 +++$+++ 30828 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's your complaint.
04-805 +++$+++ 30829 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My complaint is that two gasoline companies controlled the price that they were never able to fix before.
04-805 +++$+++ 30830 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If that were a real rule of reason argument, did you waive the rule of reason here?
04-805 +++$+++ 30831 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I waived the rule of reason argument with regard to showing market power and -- and impact on the market. I chose NCAA under the footnote -- and under footnote 39 of NCAA. And I chose price-fixing per se on the basis of Citizens Publishing.
04-805 +++$+++ 30832 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So is the answer -- in -- in case the Court does not agree with you, can you then say, I would like to resurrect rule of reason or do you agree with your adversary that -- that that's out of the case because you forfeited it?
04-805 +++$+++ 30833 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you do it, as was noted in California Medical, where you have this whole line from per se to the end on rule of reason, and in between on Misty Flats, no one is sure what they are, but we now know I am getting rid of the final one, the far one. But I am not -- I am not getting rid of -- and I -- and I do not waive the rule of reason based on the so-called quick look doctrine, as announced by this Court on a number of occasions. And we have satisfied all of those requirements. The restraint is on price directly.
04-805 +++$+++ 30834 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The ordinary, routine rule of reason you have waived. Is that so?
04-805 +++$+++ 30835 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, on impact of market.
04-805 +++$+++ 30836 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Alioto.
04-805 +++$+++ 30837 +++$+++ TRUE +++$+++ MR. ALIOTO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If it please the Court, thank you, Your Honor.
04-805 +++$+++ 30838 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Nager, you have 2 minutes remaining.
04-805 +++$+++ 30840 +++$+++ FALSE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. I have three quick points. One, just to bring us back to the stipulated facts of this case, I'd ask the Court to check the joint appendix, page 78 to 79, stipulated fact number 62. The second sentence of that stipulation says, after the formation of Equilon and Motiva, the pricing was consolidated so that one person at Equilon set prices for both the Shell and Texaco brands in any given Equilon pricing area, and one person at Motiva set prices for both brands in any given Motiva pricing area. There's never been any allegation in this case that Shell and Texaco set the actual prices at which this gasoline was sold at. The only claim then that the owners of the joint venture said that the prices had to be the same between the two branded names in any given area. Secondly, with respect to the 8-month period that the respondents keep pointing to, the record reflects testimony that, as with any consolidation of two businesses that have been separate and are coming together, it took them a few months to figure out how to consolidate and unify and save the $800 million a year that was the purpose of this joint venture in consolidating. No -- no two companies, when they create a joint venture or merge, instantaneously are able to operate as if they didn't previously exist. It takes a while. And the third point -- and this is the point that Justice Breyer has made. When this joint venture was created, it eliminated competition in the United States for branded gasoline between Shell and Texaco. That's a stipulated fact in this case. And when it eliminated competition between Shell and Texaco, there was no further competition to effect. There was no further anticompetitive consequence that could happen from the pricing of the gasoline of that joint venture. It's your three counters in the department store. And if there is no further anticompetitive effect that can happen, there's no quick look reason possible, Justice Souter, for the issue that's been challenged in this case. Your hypothetical goes to the formation which they waived. Thank you very much.
04-805 +++$+++ 30841 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, just as long as you have a minute -- (Laughter.)
04-805 +++$+++ 30842 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I take it that their point was, what you sort of said there, that -- that they had agreed -- sorry. Forget it. (Laughter.)
04-805 +++$+++ 30843 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
04-848 +++$+++ 30847 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument today in Dolan versus United States Postal Service. Mr. Radmore.
04-848 +++$+++ 30849 +++$+++ FALSE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The Federal Tort Claims Act's postal-matter exception bars any claim arising out of the failure of the Postal Service to fulfill its duty to deliver mail to its intended destination on time and in good condition, but does not bar any claim arising out of ordinary negligence that happens to occur while the tortfeasor is delivering mail. The Petitioner's construction shields the Government from all claims arising out of loss or damage or delay or destruction of the mail, while allowing claims that do not stem from all -- do not stem from the violation of the unique duty of the Postal Service to make sure that the mail arrives on time and in good condition. It is the construction most faithful with the text and purpose of the Federal Tort Claims Act. The exception bars any claims, whether for personal injury or property damage, that arise while the mail is -- if the mail is lost, misdelivered, damaged, or delayed. The Government argues for a much broader construction that would bar all claims that arise from the handling of mail. The Government's construction depends on a definition of transmission of the mail, viewed in isolation from the rest --
04-848 +++$+++ 30850 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Mr. Radmore, what was the purpose of the enactment of the waiver of Federal sovereign immunity here? Was it to allow recovery for auto accidents occurring by postal trucks?
04-848 +++$+++ 30851 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the --
04-848 +++$+++ 30852 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Was that basically the purpose?
04-848 +++$+++ 30853 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice O'Connor, this Court's decision in Kosak tells us that one of the main purposes in enacting the Federal Tort Claims Act was to allow private persons to be able to make claims against the Postal Service from motor vehicle --
04-848 +++$+++ 30854 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Arising --
04-848 +++$+++ 30855 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- accidents.
04-848 +++$+++ 30856 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ -- out of auto accidents.
04-848 +++$+++ 30857 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-848 +++$+++ 30858 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ And do we normally construe waivers of sovereign immunity narrowly?
04-848 +++$+++ 30859 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, once you --
04-848 +++$+++ 30860 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ I thought we did.
04-848 +++$+++ 30861 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But once there's a broad waiver --
04-848 +++$+++ 30862 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ For auto accidents.
04-848 +++$+++ 30863 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-848 +++$+++ 30864 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Now, why should we interpret the exception broadly?
04-848 +++$+++ 30865 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the exception -- this Court has told us, in both Smith and Kosak, that it is the -- the lower courts and this Court, when they're viewing an exception to the Federal Tort Claims Act -- that they shouldn't extend the waiver, nor should they view it more narrowly, that they should look at the waiver -- they should look at the exception and make a determination as to what the meaning of the words are, and what the reason for the exception was, and they should do no more, nor no less, than that.
04-848 +++$+++ 30866 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I guess we've already construed it broadly, haven't we, in -- or, excuse me -- yes, construed the waiver broadly. In Kosak versus United States, we allowed a suit against the United States for negligence of a mail truck in an automobile accident. I suppose the language could have covered that, couldn't it?
04-848 +++$+++ 30867 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's exactly what the point -- that our point is, is that, because the Government, in this case in -- and the Court, in Kosak, has told us that automobile accidents are not barred, are -- from -- by -- they're not barred --
04-848 +++$+++ 30868 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It could --
04-848 +++$+++ 30869 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in the case --
04-848 +++$+++ 30870 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- have been within the literal. It could have been negligent -- what is it? -- negligence --
04-848 +++$+++ 30871 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Negligent --
04-848 +++$+++ 30872 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in the delivery of mail?
04-848 +++$+++ 30873 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Negligent --
04-848 +++$+++ 30874 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Negligent --
04-848 +++$+++ 30875 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- transmission.
04-848 +++$+++ 30876 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- transmission.
04-848 +++$+++ 30877 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-848 +++$+++ 30878 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But an automobile accident is something, as the Government points out, that any agency of Government can be involved in, not peculiar to the Postal Service. But the transmission of the letter is -- the words are "negligent transmission." Many people think of the Postal Service, the letter carrier, delivering the mail to one's home. That act surely fits the word "negligent transmission."
04-848 +++$+++ 30879 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, in isolation, we admit that the word "transmission" could have the broad interpretation that the Government as -- is urging this Court to follow. But you have to look at the term "negligent transmission" in the context of the whole exception. And if "negligent transmission" were to be given the broad interpretation that the Government urges and the Third Circuit found, then the words "loss" and "miscarriage" in the exception would be superfluous. And we also know that this Court, on prior occasions, has indicated that the canon that "words are known by their associate" applies in construing exceptions to the Federal Tort Claims Act. And in -- that canon tells us that when you have words that are in a group, they should be given like meaning. And we know that only mail can be lost, only mail can be delivered to the wrong location. And, as a result, it's pretty clear that the term "negligent transmission" deals with the mail, itself. And --
04-848 +++$+++ 30880 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How -- wait, I -- it's not true that only mail can be lost, or only mail can be delivered to the wrong location. If you order from a private delivery service, they can do all of those things, as well.
04-848 +++$+++ 30881 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they can do all those things, but they don't have the benefit of the -- of sovereign immunity.
04-848 +++$+++ 30882 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What do you consider covered by negligent transmission? I take it if the -- if the postal worker throws the package to the house and there's something in it that gets broken, that's covered by the exception?
04-848 +++$+++ 30883 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Any damage to the mail, itself, would be covered to the exception -- by the exception. For instance, if a -- if somebody had ordered their medication over the -- you know, through the Medicare Act, and they had ordered it from a warehouse somewhere in Idaho, and the -- during the transmission of the mail, the medication had been lost, well, if somebody was injured, if they had a stroke or they had a heart attack because they didn't get their mail on time --
04-848 +++$+++ 30884 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right. But if -- now, if they throw the package onto the porch, and it lands in a place where somebody's going to trip over it, you say that's not covered by the exception.
04-848 +++$+++ 30885 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's not covered, because that's an act of ordinary negligence. Damage to the package would always be covered, but the act of creating a hazardous condition would not be covered, because that's an ordinary tort that would be -- subject private persons to a liability between themselves. And that's -- the purpose of the Federal Tort Claims Act is to allow the Government to be held responsible for ordinary torts if there would be a like liability between private persons.
04-848 +++$+++ 30886 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wouldn't the term "negligent transmission" probably cover late deliveries?
04-848 +++$+++ 30887 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would cover late deliveries.
04-848 +++$+++ 30888 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or incorrect deliveries in --
04-848 +++$+++ 30889 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would -- could.
04-848 +++$+++ 30890 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- to the wrong address, something like that.
04-848 +++$+++ 30891 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Delay or damage --
04-848 +++$+++ 30892 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-848 +++$+++ 30893 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to the --
04-848 +++$+++ 30894 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It could cover, under your theory, this very act, just dumping the stuff there on the porch, if the consequence of that had not been that the homeowner tripped over it, but that rain destroyed the contents of the -- of the letters so that they were illegible.
04-848 +++$+++ 30895 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-848 +++$+++ 30896 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You would --
04-848 +++$+++ 30897 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-848 +++$+++ 30898 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- say that that would --
04-848 +++$+++ 30899 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice --
04-848 +++$+++ 30900 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- be covered.
04-848 +++$+++ 30901 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Scalia, that's correct, that the exception would bar suit against the Government for any damage to the actual contents of the package, itself.
04-848 +++$+++ 30902 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, in -- it seems to me a little strange that this same act is both within the exception and not within the exception, the same act of negligence.
04-848 +++$+++ 30903 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's not really the same act. It's the same act, in that they used the mail, and there was a consequence to the mail, but the creation of a hazard or -- through some kind of careless act, whether it be the postal employee or whether it be a person that would raise 2680(c) from the customs exception, whether -- or an IRS agent or a private person --
04-848 +++$+++ 30904 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it --
04-848 +++$+++ 30905 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- would all be responsible for creating a hazardous condition on the porch.
04-848 +++$+++ 30906 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But isn't your response to Justice Scalia -- you could make the same argument. If there's an accident, and the truck caught on fire, and the mail was destroyed, you couldn't recover for the lost mail in the truck, but you could -- but you could recover for personal injury resulting from the accident. It would be precisely the same conduct.
04-848 +++$+++ 30907 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Precisely the same under our interpretation of --
04-848 +++$+++ 30908 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That is a good answer. I'm glad you came up with that. [Laughter.]
04-848 +++$+++ 30909 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What does "negligent transmission" add to "loss" or "miscarriage"?
04-848 +++$+++ 30910 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- "loss" doesn't cover mail that would be delayed or damaged.
04-848 +++$+++ 30911 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I supposed "miscarriage" does.
04-848 +++$+++ 30912 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ "Miscarriage" would be mail that went to the wrong location. If it was misdelivered, that's what "miscarriage" would mean in this context.
04-848 +++$+++ 30913 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or mis-carried, like handled in a way that it's damaged, or put in a place where it's going to be damaged. It seems to me that -- I'm not sure what additional weight "negligent transmission" covers if you have a reasonable reading of "miscarriage."
04-848 +++$+++ 30914 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you could look at every term in the exception, and, if you gave it the broadest definition possible, you could say that all of the words are superfluous, that "loss" would cover mail that was, you know, lost and not delivered to the postal patron within two weeks, and, for that period of time, the mail was lost. But if you look at the exception in --
04-848 +++$+++ 30915 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, that doesn't work. I mean, if you deliver it to the house next door, you haven't lost it, you've misdelivered it or miscarried it. I don't -- I don't think "miscarriage" is redundant. But you -- your construction of "negligent transmission" is so narrow that I'm not sure it adds anything to "miscarriage," which suggests it might --
04-848 +++$+++ 30916 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, "miscarriage" doesn't mean that the mail was damaged. "Miscarriage," if I take the -- if the mail is delivered, Mr. Justice Roberts, to your next-door neighbor, it doesn't mean the mail is -- maybe miscarriaged, but it's not delayed, and it's not damaged. So --
04-848 +++$+++ 30917 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about "delay"? Does "delay" -- your -- isn't that something that's neither within "loss" or "miscarriage"?
04-848 +++$+++ 30918 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, "delayed" wouldn't be within either term. "Lost," I think, means exactly what it says, mail that's lost. "Lost" means lost.
04-848 +++$+++ 30919 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
04-848 +++$+++ 30920 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, if, in fact, they -- the Post Office negligently delays the knowledge that would come to me in the letter, that I have 15 days to claim my billion-dollar inheritance -- [Laughter.]
04-848 +++$+++ 30921 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I guess I couldn't sue.
04-848 +++$+++ 30922 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You couldn't sue.
04-848 +++$+++ 30923 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Well, suppose what they do is -- this is -- it seems to me this case is like a first-year law school hypothetical. But, I mean, the -- suppose that the -- what they do is, he puts the mail on the porch, my package, and he rips it open, negligently; and there for everyone to see is the toupee that I ordered. [Laughter.]
04-848 +++$+++ 30924 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I sue -- I sue for public humiliation. See? I mean, what about that one? [Laughter.]
04-848 +++$+++ 30925 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I have that same problem. [Laughter.]
04-848 +++$+++ 30926 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It --
04-848 +++$+++ 30927 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, what I -- to sort of my cards on the -- I was thinking, "Well, that comes close," but maybe it -- maybe it is within the -- within the -- within the exception. I'm not sure. And then --
04-848 +++$+++ 30928 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think --
04-848 +++$+++ 30929 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I think --
04-848 +++$+++ 30930 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I think you're covered.
04-848 +++$+++ 30931 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- on the other --
04-848 +++$+++ 30932 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think that's negligence transmission.
04-848 +++$+++ 30933 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ On the other -- no, they -- see, it -- he put it on the porch, which is transmitting it, in such a way that it fell open. But I'm just trying to think -- and then the -- on the other side of it, you have the automobile accident. And I guess he comes along the street, the postman, swinging my package around, and bops someone on the head with it. I guess that's covered. And then, this case is somewhere in the middle.
04-848 +++$+++ 30934 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, obviously, a line has to be drawn somewhere.
04-848 +++$+++ 30935 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what's the principle according to which we're drawing it?
04-848 +++$+++ 30936 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think anything -- any claim that would arise from the unique governmental duty to deliver the mail on time and in good condition would be barred. Any --
04-848 +++$+++ 30937 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Excuse me --
04-848 +++$+++ 30938 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the --
04-848 +++$+++ 30939 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I don't understand your last -- your last answer. You think bopping somebody on the head in the course of delivering a package would --
04-848 +++$+++ 30940 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, no, it wouldn't be barred, because that's an ordinary tort.
04-848 +++$+++ 30941 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
04-848 +++$+++ 30942 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the mail -- in that hypothetical, the mail still arrived on time and in good condition if they bopped somebody on the head. There wouldn't be a bar --
04-848 +++$+++ 30943 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, ordinary tort doesn't quite work, because I guess my public humiliation case is -- could be an ordinary tort. Somebody could go up to the porch and rip it open, nothing to do with the mail. And, moreover, somebody could, in fact, delay the transmission of my inheritance. See? They could. So, all those things could be ordinary torts.
04-848 +++$+++ 30944 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But they don't have a duty. The difference is, in that case, if a -- if a private person were to go and open up the package, or if a private person were to take your letter that showed that you had an inheritance, a private person doesn't have the duty. Only the Government has a duty to deliver the mail on time and in good condition.
04-848 +++$+++ 30945 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Doesn't it have a -- in good condition. Therefore, when they put it -- therefore, I guess, ripping it open is, in fact, not in good condition, so maybe that is immune. And leaving it on the porch in a position where somebody would trip over it, you might say they didn't deliver it in good condition, because what they're supposed to do is place it somewhere where you don't trip over it. And that's good condition for the delivery.
04-848 +++$+++ 30946 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's not good condition for purposes of ordinary torts. The exception bars a claim against the Government for the contents of the package. In your hypothetical, Justice Breyer, if the toupee were damaged as a result of the package being opened, then you could not make a claim, because that was the content of the mail, but if you fell over the package, that's an ordinary tort, that's a common duty between private persons. So --
04-848 +++$+++ 30947 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ As is a automobile accident, and it -- the Chief suggested to you that there are other kinds of people who deliver items. And that kind of negligence, you say, is within the exception.
04-848 +++$+++ 30948 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, I don't --
04-848 +++$+++ 30949 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That --
04-848 +++$+++ 30950 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- understand your --
04-848 +++$+++ 30951 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That you say --
04-848 +++$+++ 30952 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- question, Justice Ginsburg.
04-848 +++$+++ 30953 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm sorry. Outside the exception.
04-848 +++$+++ 30954 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-848 +++$+++ 30955 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, there, you're saying that the Post Office is just -- it's just like everyone else with respect to automobile accidents, right?
04-848 +++$+++ 30956 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Ginsburg.
04-848 +++$+++ 30957 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- and -- you -- therefore, it should be just like everyone else with respect to this negligent delivery in --
04-848 +++$+++ 30958 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect to ordinary torts. If they create -- if the Post Office creates a hazardous condition, then they should be a -- responsible, just as private persons are. We know that that's the purpose of the broad waiver of sovereign immunity under the Federal Tort Claims Act, is to make the Government -- or to allow private persons to make a claim against the Government if there is a duty that is common to private persons.
04-848 +++$+++ 30959 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Radmore, I don't think you're quite correct when you say, with regard to an automobile accident, it's just like a private entity delivering mail -- or delivering packages. If a private delivery service had an automobile accident that resulted in the destroy -- destruction of a package, a private party could sue for the contents of the package. But that's not true with regard to the Postal Service.
04-848 +++$+++ 30960 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely correct, Justice Stevens. And I believe that that's really the biggest problem the Government has with their interpretation of negligent transmission, because if there's an exclusion for motor-vehicle accidents, then that would mean that that exclusion would not only apply to the terms of the exception "negligent transmission," but, if it's an exclusion, as the Government has argued for, though they haven't explained why the exclusion wouldn't apply to loss and miscarriage, the logical endpoint of their exclusion is that if you have a tractor-trailer that has 10,000 IRS refund checks on it, and that tractor-trailer is in a accident, and all of the refund checks are destroyed, well, any private person who didn't get their refund check in time, and couldn't pay their mortgage, or they couldn't pay for their credit-card bill or they couldn't do something as a result of the loss of those refund checks, would be able to make a claim against the Government, as long as the loss occurred from a motor-vehicle accident. They make no explanation as to why that would not be the case.
04-848 +++$+++ 30961 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you -- the -- you assert that would be the case, don't you?
04-848 +++$+++ 30962 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I --
04-848 +++$+++ 30963 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, you assert that they would be able to sue.
04-848 +++$+++ 30964 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, not at all.
04-848 +++$+++ 30965 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh. All right.
04-848 +++$+++ 30966 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the -- any -- anytime that the mail is lost, the mail is delivered to the wrong location, the mail is damaged or --
04-848 +++$+++ 30967 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-848 +++$+++ 30968 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- delayed --
04-848 +++$+++ 30969 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. I gotcha.
04-848 +++$+++ 30970 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- through negligence, regardless if it's a motor-vehicle accident, then the Government is protected. And so, it's --
04-848 +++$+++ 30971 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I guess -- I -- following up on Justice Stevens' question, your theory with respect to negligent transmission is that the Postal Service should be liable in the same way that private parties are. But that theory doesn't hold up when you're talk -- that's not your theory.
04-848 +++$+++ 30972 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's not --
04-848 +++$+++ 30973 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, then, what is your --
04-848 +++$+++ 30974 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our theory is, if there's damage to the mail, there's an exception to --
04-848 +++$+++ 30975 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's --
04-848 +++$+++ 30976 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- some --
04-848 +++$+++ 30977 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I would have thought that was miscarriage.
04-848 +++$+++ 30978 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Damage?
04-848 +++$+++ 30979 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or loss.
04-848 +++$+++ 30980 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if it was -- if it was the same as miscarriage or loss, then that makes the whole term "negligent transmission" superfluous. And this Court has told us that every term in an -- in the -- any exception should be viewed so as --
04-848 +++$+++ 30981 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it's only superfluous under your reading. If it covers, for example, putting the package -- negligently placing the package in a location where it's going to cause injury, well, then it's not superfluous.
04-848 +++$+++ 30982 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in a broad -- that's true if you're going to read the words so broadly that -- it would then make "loss" and "miscarriage" superfluous."
04-848 +++$+++ 30983 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you're using --
04-848 +++$+++ 30984 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No.
04-848 +++$+++ 30985 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're -- no, please.
04-848 +++$+++ 30986 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I was just -- it wouldn't make it superfluous at all. "Loss" would cover loss. "Miscarriage" would cover damage. And "negligent transmission" would be transmitting it negligently, such as leaving it where somebody's going to trip over it.
04-848 +++$+++ 30987 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the broad interpretation that the Government asks for, and that the Third Circuit followed, was that "negligent transmission" covered anything that occurred to the mail from the time the mail was dropped off at the Post Office until it arrived at a third -- to the third person. So, with that broad definition of "negligent transmission," anything that occurred, whether it was a loss of the mail, whether it was misdelivered to the wrong location, would be covered, and that would make the words "loss" and "miscarriage" superfluous.
04-848 +++$+++ 30988 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you're taking as your prime -- or a prime example of what would be covered by the exception of "negligent transmission" the package that is delivered to the right place on time and all the china inside the box is smashed. I mean, that would be an example that would fit your theory.
04-848 +++$+++ 30989 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-848 +++$+++ 30990 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-848 +++$+++ 30991 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There would be a bar. The bar would apply.
04-848 +++$+++ 30992 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you would -- you would say that's supported by the -- you know, the noscitur a sociis argument, because it's damage of -- to the mail, or the condition of the mail, or the manner in which the mail itself is delivered, but it -- that's more or less where you -- where you think the exception should stop.
04-848 +++$+++ 30993 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's more, rather --
04-848 +++$+++ 30994 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-848 +++$+++ 30995 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- than less. That's exactly where we think --
04-848 +++$+++ 30996 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Yes, your theory is basically that the exception just deals with bad things that happen to the mail.
04-848 +++$+++ 30997 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it also would protect the Government when there is a -- either a personal injury or some kind of loss, a personal injury or an economic loss that arises from the damage or delay to the mail. You know, I think I brought up the example of the medication or if -- if you had a check or a coupon bond that was destroyed. There would --
04-848 +++$+++ 30998 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that would be, in each case -- in each example you're giving, as I understand it, that would be as a consequence to a violation that affected the mail, itself, in the first place.
04-848 +++$+++ 30999 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Souter.
04-848 +++$+++ 31000 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I lose the -- I lose the money, because the mail is slow, or whatever.
04-848 +++$+++ 31001 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Souter, exactly. And if there's no other questions, I'll reserve the remainder of my time.
04-848 +++$+++ 31002 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Radmore. Ms. Millet.
04-848 +++$+++ 31004 +++$+++ FALSE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Justice O'Connor, when you mentioned that this is a waiver of sovereign immunity and we have to construe that with that in mind, it's, sort of, central to our starting to our point for understanding this statute. This claim falls squarely within the text of the statutory exception, and there doesn't seem to be much dispute about that. And the question is whether --
04-848 +++$+++ 31005 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But isn't it true that it falls squarely within the word "transmission," just exactly as an automobile accident arising out of carrying -- transmitting mail does?
04-848 +++$+++ 31006 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It falls with --
04-848 +++$+++ 31007 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They are both equally within the plain language.
04-848 +++$+++ 31008 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It falls within the word "transmission," but the relevant phrase is "negligent transmission of mail or postal matter." And --
04-848 +++$+++ 31009 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which is happening in the -- in the truck when it has an accident.
04-848 +++$+++ 31010 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But what you're suing over in that case -- and this is exactly the line this Court drew in Kosak -- your claim isn't -- it has to arise out of the negligent transmission of mail. Your claim, when the -- when the delivery truck or the postal truck rear-ends you, doesn't arise out of the handling of the mail; it arises out of the handling of the vehicle. There's two activities going on at the same time, and you're suing about the one, and not the other. And I think it's a -- it's --
04-848 +++$+++ 31011 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, suppose you have a big crate that the postman uses, because you've been away for a week and yet the mail -- and he leaves a crate there, and you trip on the crate. Under your view, there would be liability, because the crate's like the -- the crate isn't the mail.
04-848 +++$+++ 31012 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think, at that point, sort of, the crate and the mail have become one thing, as if he left it in a bag or he -- they put a plastic bag around it to protect it from the rain, and technically you would trip over the plastic bag, but it's the lump of mail that you're tripping over. I mean, if the crate had some bar sticking out, and all you tripped over was the bar and not the mail, then that might be a different case. But I do think that we have to look carefully at whether it arises out of the handling of the mail. And that is a distinction that protects the activity that the Postal Service is engaged in that Congress wanted to protect, the handling of the mail. It's a -- it's a protection for the post, but it --
04-848 +++$+++ 31013 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the key word in the statute is "transmission," not "the transmission of letters or postal matter."
04-848 +++$+++ 31014 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The key words, I think, are the whole exception, which is "arising out of the negligent transmission of mail." It's not "negligent activities of the Postal Service." The text focuses -- it's a protection for the post, not the Postal Service.
04-848 +++$+++ 31015 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But --
04-848 +++$+++ 31016 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And just as if you're --
04-848 +++$+++ 31017 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if that's true, why do you need the words "miscarried" -- why do you need the word "miscarriage" in the statute?
04-848 +++$+++ 31018 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think "miscarriage" captures delivery to the wrong person, which doesn't harm the mail, itself.
04-848 +++$+++ 31019 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you -- but so would the word "transmission" if you -- under your reading, you don't need the word "miscarriage."
04-848 +++$+++ 31020 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What -- "transmission" adds a lot -- I think if you look, sort of, sequentially, the way Congress was thinking -- and it may not have been at, sort of, this level -- but "loss" is mail that doesn't go anywhere, it doesn't get there. "Miscarriage" gets to the wrong person. "Transmission" gets to the right person, but something went wrong in the process. And so, if you look at it that way, yes, there's no doubt there's overlap, but "transmission" captures a lot more than just "miscarriage." It is important to understand that --
04-848 +++$+++ 31021 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It covers damage, for one thing.
04-848 +++$+++ 31022 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It covers --
04-848 +++$+++ 31023 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You --
04-848 +++$+++ 31024 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It covers damage. It covers --
04-848 +++$+++ 31025 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which "loss" doesn't, and "miscarriage" doesn't.
04-848 +++$+++ 31026 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely. And the same delay may, or not, be with them. But the other thing that Petitioner's theory doesn't capture -- they're two very important things. One is the decision to admit things to the mail in the first place. If it ends up being a letterbomb or, unfortunately, anthrax, or biohazards -- I mean, we ship poisons, we ship medical specimens, we ship live alligators. I mean, every -- you wouldn't believe what goes into the mail. [Laughter.]
04-848 +++$+++ 31027 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And there has to be some protection for that decision to admit things into the mail in the first place. The other thing it doesn't capture is the very important decisions that post -- the Post Office has to make about getting the mail to someone on time. Part of that is how I get it there. And it's -- it includes not just how I get the millions of packages every day that don't fit in a mailbox or a mail slot to their customers; it includes how, after a hurricane, we decide to deliver mail outside the Superdome or to people whose mailboxes have been blown off of their houses.
04-848 +++$+++ 31028 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, how does it hurt you, say, in the live alligator, et cetera, case? If the Court says -- well, anything that's special in respect to transmission of live alligators, because it's the mail, et cetera, delayed -- or I -- I don't know how else you'd get a tort out of it. But if it's simply the kind of thing that anyone could do, like driving a postal truck or leaving something on a porch that somebody trips over or walking along the street swinging the live alligator over your head, or whatever you do -- [Laughter.]
04-848 +++$+++ 31029 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that kind of thing that doing it -- that kind of thing doesn't mean to fall within the "transmission." Now, suppose that that was the holding. How would the Government be hurt?
04-848 +++$+++ 31030 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ First of all, that -- if the -- if the exception, as I understand it, is that of harms to or from the content of the mail, that isn't going to --
04-848 +++$+++ 31031 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What we'd look to is, you'd look to the purpose of this. The purpose of it was, basically, I gather from the history, as recounted in Kosak -- in what the Court said in Kosak -- the purpose of this is to try to bring back into sovereign immunity, so you're not sued all the time, the very kind of common suit that a person could protect himself for the loss by registering the package, by taking out this ordinary transmission insurance, which is not that hard to do. So, they said, if we start opening it up to misdelivery claims, all that pack -- family of things, everybody'll say, "Hey, you hurt my pet, you didn't give me the check." I mean, all kinds of things will be opened up. But the Government's already liable for what I'd call the "swinging the package around," leaving it -- slip-and-fall, trucks. So that falls on the other side. Now, how does that hurt you, the Government, if that's how we'd come out?
04-848 +++$+++ 31032 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It hurts us -- I mean, my starting point, first of all, is this text, and not legislative history or purpose --
04-848 +++$+++ 31033 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you can't get too far --
04-848 +++$+++ 31034 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- which is --
04-848 +++$+++ 31035 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- with the text. I think you have a great claim, and so does the other side; but if it's just the text, that's not my question.
04-848 +++$+++ 31036 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. But I --
04-848 +++$+++ 31037 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The question is, If I think the text is perfectly ambiguous on this, I look to the purpose, suppose I came out the way I just said. How would the Government be hurt? is what I want to know.
04-848 +++$+++ 31038 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What the Government is hurt by is the fact that you're -- some -- you're allowing torts for the one activity that is distinct to the Postal Service amongst governmental agencies, and that is the act of delivering. That is what the transmission exception protects. When you're -- when you're driving a vehicle, the postal employee is making the -- is not making mail-specific judgments. The postal employee is making the same judgments that I made driving to work today and that everyone else on the road makes. But when you are making decisions about how to deliver 660 million pieces of mail a day to 142 million different locations -- the bottom of the Grand Canyon, remote Alaska, and urban cities -- that -- to get that job done, you have to be able to make judgments about the actual act of delivery. And --
04-848 +++$+++ 31039 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, how is mail- --
04-848 +++$+++ 31040 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what if it's for --
04-848 +++$+++ 31041 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- mail-specific any different than the grocery boy -- I mean, than the grocery-specific, under your view?
04-848 +++$+++ 31042 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but it's clear that Congress wanted to capture negligence. I mean, it's the -- it -- the fact that -- there has to be an analog to private people, or we're not in the Federal-Tort-Claims-Act land anyhow. The question is, Which of those activities? And the text focuses on --
04-848 +++$+++ 31043 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you're --
04-848 +++$+++ 31044 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the actual --
04-848 +++$+++ 31045 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you're saying -- you're -- you want us to say that mail is somehow unique. But it isn't. There's all kinds of delivery.
04-848 +++$+++ 31046 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- whether or not it's unique, Congress focused on the presence of mail in a mail-specific judgment. That's how we read --
04-848 +++$+++ 31047 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I'm saying --
04-848 +++$+++ 31048 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the text --
04-848 +++$+++ 31049 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- it's not mail-specific, because all delivery people have the same problem.
04-848 +++$+++ 31050 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The mail --
04-848 +++$+++ 31051 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, why is it mail-specific?
04-848 +++$+++ 31052 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ First of all, the decision to put it into a mailbox is a uniquely postal --
04-848 +++$+++ 31053 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, and letters are carried in a mail truck, but we allow a cause of action for negligence of the driver of the mail truck. That's unique to mail, too.
04-848 +++$+++ 31054 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Drive the -- driving is not unique to the mail. It's not, even amongst agencies, let alone amongst private parties. The -- what --
04-848 +++$+++ 31055 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're leaving something --
04-848 +++$+++ 31056 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And it --
04-848 +++$+++ 31057 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That was the very point, leaving something on the porch where somebody can trip on it isn't unique to mail --
04-848 +++$+++ 31058 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It doesn't --
04-848 +++$+++ 31059 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- just as driving a truck isn't.
04-848 +++$+++ 31060 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It doesn't have to be unique to mail. If it is unique to mail, if there's no private-party analog, the Federal Tort Claims Act doesn't apply, by its own terms. But what -- I mean, there is a distinct and unique postal act of putting things into the mailbox.
04-848 +++$+++ 31061 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, if --
04-848 +++$+++ 31062 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And if it --
04-848 +++$+++ 31063 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- in fact, you have a driver of the truck, the postal truck, and what he does is, he puts the mail in the truck, so my skis, which I have shipped by mail, happen to stick out the side, and, as he walk -- drives along, he just mows down the pedestrians. [Laughter.]
04-848 +++$+++ 31064 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I take it, on your theory, that that -- there is no lawsuit.
04-848 +++$+++ 31065 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- if your damage -- harms to and from the mail, yes. Yes, that is our position. If he mows 'em down with his arm or with his rearview mirror on his truck, your -- the liability attaches. But you asked why it is important, Justice Breyer. And one of the reasons it's very important is to look at these types of claims. The Postal Service is defenseless. We are essentially defenseless when we get one of these claims. Unlike a vehicle accident, where we are a party to it and know what happens when it happens, this type of injury, we may not know about for up to two years after --
04-848 +++$+++ 31066 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let --
04-848 +++$+++ 31067 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- it happens.
04-848 +++$+++ 31068 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- let me ask you about defenses. And it goes a little bit beyond the suit, but, as I -- I read through the regulations, and it's the duty of the occupant, or the recipient, of the mail to provide a box or a letter slot or something. Would the failure to do that, so that they just have to put it on the porch -- is that a defense?
04-848 +++$+++ 31069 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'd --
04-848 +++$+++ 31070 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's assume there's liability.
04-848 +++$+++ 31071 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Uh-huh.
04-848 +++$+++ 31072 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's assume that your interpretation of the statute does not prevail here. Does the Post Office have a defense if the person doesn't provide a mailbox, as the regulations require?
04-848 +++$+++ 31073 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not going to say here that we wouldn't have some defenses that me may want to invoke at a future time, but I'm not very optimistic, because I think the fact that you -- they may not have a box doesn't mean that we could put it -- assuming your theory that we're liable -- put it somewhere negligently --
04-848 +++$+++ 31074 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is --
04-848 +++$+++ 31075 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- as opposed --
04-848 +++$+++ 31076 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are there --
04-848 +++$+++ 31077 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- nonnegligently.
04-848 +++$+++ 31078 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are there regulations requiring that the mail be put in a reasonably safe place? And by that, I mean reasonably safe for the occupant, not reasonably safe for the mail.
04-848 +++$+++ 31079 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It --
04-848 +++$+++ 31080 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You -- because you quote -- you quote, on page 2, the footnote -- you quote the regulation. But I read that, that it has to be reasonably safe for the mail, because it says, "Oh, you can leave it on a stairway or under a porch, just so long as it's safe for the mail." That's the way I read that one.
04-848 +++$+++ 31081 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, I think they make the -- as a practical -- is there text in the Domestic Mail Manual that specifically says, "Put it where somebody won't slip"? No. I think it's the same judgment that's being made. They're making the best judgments that they can, but there is -- you know, they're, sort of, caught between them. So, they need to put it somewhere where it's sheltered, and that tends to be close up to buildings. And the problem is, it's not --
04-848 +++$+++ 31082 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I guess my point --
04-848 +++$+++ 31083 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- once it's on the --
04-848 +++$+++ 31084 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- my point is, if there's a duty, then it seems to me the Post Office is used to making these judgments. And if it does not make the correct judgment, it can be sued.
04-848 +++$+++ 31085 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-848 +++$+++ 31086 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not saying --
04-848 +++$+++ 31087 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The --
04-848 +++$+++ 31088 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that you're creating a cause of action.
04-848 +++$+++ 31089 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-848 +++$+++ 31090 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm just saying that you're not --
04-848 +++$+++ 31091 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The except --
04-848 +++$+++ 31092 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that much different than any institution faced with slip-and-fall cases.
04-848 +++$+++ 31093 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The except -- it is different -- the exception applies whether we do it negligently or nonnegligently. And so, the fact that we didn't happen to do it, at least allegedly, negligently in this case isn't what -- can't be what triggers the exception. And what is different is, you -- understanding, as a practical matter, what the postal carriers are supposed to do millions of times every day when the mail doesn't fit --
04-848 +++$+++ 31094 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But are -- you got the -- well, that's exactly the point I'd like you to hone in on, because I don't see what's -- you say, "Well, we're defenseless." Why are you more defenseless than any other business that leaves things on porches? That might be, you know, 482 million apple deliverers or Domino Pizza people. I don't know. Or they -- they ring the bell, probably, but some -- McDonald's hamburgers, lots of -- department stores. I mean, a lot of people leave things on porches. So, why are you more defenseless than they?
04-848 +++$+++ 31095 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because -- because we -- first of all, we leave it there for 37 cents, and we leave it in a volume -- 660 million pieces of -- a day. FedEx and UPS aren't even in the neighborhood --
04-848 +++$+++ 31096 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, are you talking about --
04-848 +++$+++ 31097 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of that amount.
04-848 +++$+++ 31098 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're talking about letters, though, right? I mean, I -- they -- is FedEx and UPS in the neighborhood when you're talking about packages --
04-848 +++$+++ 31099 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
04-848 +++$+++ 31100 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- of the size that have to be left --
04-848 +++$+++ 31101 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. We --
04-848 +++$+++ 31102 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- on the porch?
04-848 +++$+++ 31103 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 660 million includes letters and packages.
04-848 +++$+++ 31104 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
04-848 +++$+++ 31105 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ UPS does, I think, about 12 million a day; FedEx, about 5 million.
04-848 +++$+++ 31106 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what's the Postal Service number for large packages?
04-848 +++$+++ 31107 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Large? I mean, they -- they don't count it by large --
04-848 +++$+++ 31108 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-848 +++$+++ 31109 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- medium, or what will fit inside the mailbags. I simply can't give you a number --
04-848 +++$+++ 31110 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Well, that's --
04-848 +++$+++ 31111 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- on that. But --
04-848 +++$+++ 31112 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that's what people are likely to trip over. I mean, they're not likely to trip over a letter.
04-848 +++$+++ 31113 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A number of letters bundled -- I wouldn't -- I wouldn't be surprised to see what could happen if, in fact, the liability is allowed. If you're -- you know, you go to put it into the mailbox, and a piece slips out of the mailman's hand and lands on the porch, and it's one of those cellophane envelopes, and it's slippery. I mean, that's --
04-848 +++$+++ 31114 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do we have any sense --
04-848 +++$+++ 31115 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- maybe all that it takes.
04-848 +++$+++ 31116 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- of how many claims of this nature there are? I know we do have the Second Circuit case, on one side. And, by the way, I didn't notice that you refer to the Second Circuit decision in your brief. Did you?
04-848 +++$+++ 31117 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
04-848 +++$+++ 31118 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It --
04-848 +++$+++ 31119 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- don't remember.
04-848 +++$+++ 31120 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- goes --
04-848 +++$+++ 31121 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I know it was in our brief in opposition, but I don't recall if I did in this.
04-848 +++$+++ 31122 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In the brief here -- well, it's -- it surprised me that there were those two cases. But, do you have any notion of how many slip-and-fall, trip-over-mail cases -- claims are filed?
04-848 +++$+++ 31123 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I can give you a rough estimate. There are -- there are 700 -- about 700 slip-and-fall cases a year, but the vast, vast majority of those are slipping in a building on, you know, a slippery floor, which we concede liability for. Probably, you know -- less than a dozen, around ten or so a year, thus far. But --
04-848 +++$+++ 31124 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You concede --
04-848 +++$+++ 31125 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- we've been able to --
04-848 +++$+++ 31126 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- liability for a slippery fall in the Post Office.
04-848 +++$+++ 31127 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. We --
04-848 +++$+++ 31128 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-848 +++$+++ 31129 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- concede liability for that, because that -- just like -- that's not handling of the mail, that's handling of a building or handling of a vehicle, which we see different from handling of --
04-848 +++$+++ 31130 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, there was --
04-848 +++$+++ 31131 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the mail.
04-848 +++$+++ 31132 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- there was, in one of the briefs, an example where there's a puddle created by the janitor. The Post Office is liable. It's -- relates to taking care of the building. There's a parcel of mail that has a liquid in it, and it's dropped, and the puddle is created by the that. No liability. And you agree that that would be the result?
04-848 +++$+++ 31133 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If we break -- if we break -- whatever damage is done to the mail, and the package in the mail, the liquid in the mail cannot be sued over. That is -- and I think Petitioners agree -- damage to and from the mail --
04-848 +++$+++ 31134 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, you agree --
04-848 +++$+++ 31135 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- is our conception.
04-848 +++$+++ 31136 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that that hypothetical --
04-848 +++$+++ 31137 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-848 +++$+++ 31138 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- is correct? And there's another one that they gave. The letter carrier comes. He's got a mailbag filled with mail, dumps it on the street while he takes a rest, somebody trips over it. That's case one. Case two is, he's finished making his rounds, and he dumps the sack on the street, it has no mail in it, and somebody trips over it. On your theory of the case, would there be liability in both situations or only in the one where the mailbag was stuffed full of mail?
04-848 +++$+++ 31139 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you're tripping over mail, and the mail bag has mail in it, there's no liability. You're harmed from the mail. If it's from mail apparatus or, you know, a postal employee's leg sticking out while they're sleeping, then we will admit liability for that. The focus -- our view of the focus of this exception, I think, by its text -- and this is exactly what the Court said in Kosak -- is on the handling of the mail, and that is a very important line for the Postal Service. They have to make hard judgments --
04-848 +++$+++ 31140 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Except that you -- my biggest hangup -- and I wish you'd go through your distinguishing of it again -- is the -- is the Kosak case. Carrying the mail in a mail truck is the handling of the mail. There is no doubt that it's the handling of the mail. And it seems to me it doesn't -- it isn't enough to say, "Well, other people drive trucks, too." Well, that's true. But other people deliver packages, too, and leave 'em on the doorstep. How do you distinguish Kosak?
04-848 +++$+++ 31141 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think -- in -- first of all, it's just dicta in Kosak, which, in fact, construed the customs exception to include both -- you know, not to turn upon the type of damage that ensued, so we actually are asking for the sort of same analysis of the holding in Kosak -- the dicta in Kosak about motor vehicles is different -- I think if I could just -- for the logical reason, if someone rear-ends you, you don't --
04-848 +++$+++ 31142 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Excuse me.
04-848 +++$+++ 31143 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Uh-huh.
04-848 +++$+++ 31144 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're -- I assume the Government has conceded Kosak, the dictum in Kosak.
04-848 +++$+++ 31145 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-848 +++$+++ 31146 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, do you concede that point, or not?
04-848 +++$+++ 31147 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We --
04-848 +++$+++ 31148 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you concede the point, it doesn't matter whether it's dictum.
04-848 +++$+++ 31149 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree, but --
04-848 +++$+++ 31150 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, you --
04-848 +++$+++ 31151 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I wanted to point out that the holding --
04-848 +++$+++ 31152 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you are trying to draw a distinction between driving the mail in the truck and leaving the mail on the doorstep. What's the basis for that distinction?
04-848 +++$+++ 31153 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that language has to be read against the backdrop of the holding of Kosak, which recognized that when you have exceptions that are written in these broad terms, the form of the injury, the particular type of personal injury -- there, it was property injury -- that ensues doesn't change whether the exception applies. Motor vehicles are different. If you're rear-ended by a truck, you don't jump out and say, "Hey, you negligently transmitted the mail." You say -- you jump out and you say, "You didn't -- your brake lights weren't working," "You didn't signal." Those are -- there are not judgments about the handling of the mail being made that the claim arises out of. You're not suing about how we handled the mail; you're suing about how we handled motor vehicles. Yes, at --
04-848 +++$+++ 31154 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if the --
04-848 +++$+++ 31155 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- 30,000 feet, it's all --
04-848 +++$+++ 31156 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if the postman throws the box onto the porch and hits somebody there, you say that's within the exception?
04-848 +++$+++ 31157 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, that's -- if we --
04-848 +++$+++ 31158 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you don't say, "Hey, you hit me with the mail," right? You say, "You hit me with a box."
04-848 +++$+++ 31159 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your claim arises out of how we handled the mail, not how handled a vehicle, not how we handled a building, not how we handled --
04-848 +++$+++ 31160 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your claim --
04-848 +++$+++ 31161 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- mail apparatus.
04-848 +++$+++ 31162 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- arises out of how he handled the box, just like --
04-848 +++$+++ 31163 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-848 +++$+++ 31164 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- in the other case it arises out of how he handled the vehicle. You don't care whether it's the mail or not. By the same token, when you trip over something -- a box -- you don't care whether it's a mail box or if it's the box from UPS. And yet, in your case, it makes all the difference in the world.
04-848 +++$+++ 31165 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Perhaps I misunderstood. If -- I thought the box was the mail, itself, that you're throwing --
04-848 +++$+++ 31166 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-848 +++$+++ 31167 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- out of -- and if the box -- but your injury arises -- if it's to or from the mail --
04-848 +++$+++ 31168 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
04-848 +++$+++ 31169 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- it's within the exception. And, yes, there are fine lines, as with any of these distinctions. In practice -- in practice -- for the practical reason that you don't have the sheer volume of claims, against which the Postal Service is largely defenseless, that you have when you start talking --
04-848 +++$+++ 31170 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I suppose your --
04-848 +++$+++ 31171 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- about delivering --
04-848 +++$+++ 31172 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- defense affects the process. In other words, you would, more and more, be leaving those -- the little slips of paper saying, "Go down to the Post Office and pick up your package," rather than leaving the package on the porch.
04-848 +++$+++ 31173 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's exactly right. And it's hard to -- I mean, that is -- you know, what happens here when I show up with oversized mail, as a mail carrier? I've got the choice of delaying your receipt of the mail by taking it back to the Postal Service, inconveniencing you, making you come downtown. That act is within the exception. I can try a person-to-person delivery. But the Postal Service went away from that, for logical reasons, because that will delay everybody else's mail, and there's no liability for all of those delays. If you set this same package down, and it has medicine or food in it -- it says -- marked "perishable" on the outside -- it's in the sun, it goes rotten, the person gets sick, there's no liability. But the -- this is a protection for an activity of the Government, like the -- many of the other Federal Tort Claim Act exceptions. And the protection for that activity is an upfront protection that doesn't turn on the happenstance of which particular form of injury is manifested at -- hours later. And it's an important reason, as I said, not only for the sheer volume of claims that we could face if this is opened up on how we deliver, but all -- our inability to defend, when, two years later, we simply do not -- unlike FedEx or UPS, or probably the pizza delivery, we can't recreate, months later, how we delivered the mail --
04-848 +++$+++ 31174 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but you're --
04-848 +++$+++ 31175 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- unless it's registered.
04-848 +++$+++ 31176 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you're using the word "deliver," but the statutory word is "transmit." And -- are there other statutes or regulations in respect to the Post Office that talk about "delivery"?
04-848 +++$+++ 31177 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There --
04-848 +++$+++ 31178 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is the word -- because it seems to me -- the omission of "delivery," it seems to me, is a real problem for you, in your theory of the case.
04-848 +++$+++ 31179 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't think so. And, as we chronicle at length in our brief, both through history and contemporaneously, the use of the word "transmit" and "transmission" in postal services is commonplace, and it means delivery to -- it means getting something to the person. Congress has consistently used "transmission" that way. And the other thing I would like to bring you back to is, understand that the reason the vehicle distinction worked -- one of the reasons Congress would have expected that is, that had happened before in history. We show, again in our brief, a number of cases. For a long time, there have been distinctions between allowing liability for -- and back then, it was stagecoach drivers that drove too fast through town. And those cases were held -- you know, when you -- when you held someone liable for driving too fast through town, that was held not to be a stoppage of the mail, stoppage of the transmission of the mail. But when you tried to regulate, more fundamentally, how the Postal Service decided to do its deliveries, and whom it would authorize to undertake the delivery, that was held to interfere with the mails. And I think --
04-848 +++$+++ 31180 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about -- but I'm surprised that there's no empirical examples of what -- well, I would think it would have happened, in 50 years and tens of millions of packages, that a package falls off a truck. You know, the next driver veers somewhere and gets into an accident, and they say it was the -- it wasn't packed properly. I think should have happened sometime in the Post Service over -- Postal Service over 50 year. My guess is, it did happen and you just paid.
04-848 +++$+++ 31181 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My guess is that we did not pay, because that --
04-848 +++$+++ 31182 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Really?
04-848 +++$+++ 31183 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- would be an injury rising --
04-848 +++$+++ 31184 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there any --
04-848 +++$+++ 31185 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to and from the --
04-848 +++$+++ 31186 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do we actually know, either of us? I don't, I confess. Do you -- do you --
04-848 +++$+++ 31187 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't, off the top of my head, but I -- you know, the distinctions that -- in talking with the Postal Service here, I mean, it may -- it -- one would -- think it might have happened, but perhaps it hasn't. Hopefully, it hasn't. But, if it has, I mean, it's a fine distinction. And any tort -- you know, a first-year tort student knows that tort lines can, you know, give rise to difficult analysis at times. But if you understand that what Congress was trying to protect here was the movement of the mail and the handling of the mail in a way that the Postal Service does --
04-848 +++$+++ 31188 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but I don't --
04-848 +++$+++ 31189 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that really no one else --
04-848 +++$+++ 31190 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I don't understand your last distinction. You say there is no liability for the package that falls off the back of the truck, but there is liability if the truck hits another vehicle. I really don't understand the basis for that distinction.
04-848 +++$+++ 31191 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The claim for the -- if we're assuming it's a mispacking of the mail into the truck, is the --
04-848 +++$+++ 31192 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
04-848 +++$+++ 31193 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- is the claim --
04-848 +++$+++ 31194 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which happens all the time in other trucks, not just mail trucks.
04-848 +++$+++ 31195 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- then that is -- that is an -- I mean, plain text of the statute, that is a -- an allegation that we negligently transmitted the mail. We handled it negligently in how we packaged it. And --
04-848 +++$+++ 31196 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you can say the same thing about the driving of the truck that contains the mail.
04-848 +++$+++ 31197 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You can say that, but what -- when someone's -- you know, sues, what they're upset about is how you handled the vehicle, not how you handled the mail. Yes, at 30,000 feet, you can look at this and say it's all transmission. But Congress was looking at this as, sort of, on-the-ground level. And, in practical experience, the -- the person who was hit by the mail truck doesn't care if there's mail in there or not. Their injury is completely unaffected -- the presence of mail is incidental, irrelevant --
04-848 +++$+++ 31198 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Same thing with the --
04-848 +++$+++ 31199 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to that liability.
04-848 +++$+++ 31200 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- same thing with the person who veers to avoid the package that falls off the back of the mail truck.
04-848 +++$+++ 31201 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but that -- what they've been injured by -- the presence of mail is the cause of the accident --
04-848 +++$+++ 31202 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that does --
04-848 +++$+++ 31203 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and the way it was packed --
04-848 +++$+++ 31204 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- but the person who trips doesn't say, "Oh, this really hurts me because it's mail instead of a box of oranges," does he?
04-848 +++$+++ 31205 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ "Who put this mail here? This is -- this is -- mail shouldn't be here." I mean, you have -- a simple way of looking at it is, you have two things going on at the same time in the car, in the vehicle. You've got the regular activity of driving, and you've got the transmission of mail. But when you come to the porch, you have one activity, and one activity only.
04-848 +++$+++ 31206 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but --
04-848 +++$+++ 31207 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that is transmission --
04-848 +++$+++ 31208 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- your argument, as I understand it, on the -- on the truck accident and on the package that falls out of the truck -- is that the fact that mail transmission is going on at the same time is utterly irrelevant to the cause of the damage. And isn't it equally open to the -- isn't your position equally open to the argument that, when the person trips over the package on the porch, it is utterly irrelevant that that package has been placed there by a postal employee and has been carried in the mail? It is in the same -- it has the same character, vis-a-vis tripping, that a brick or a rock or any other package might have. So, if you're going to be consistent with respect to the passage of the truck, the package that drops out of the truck, and the piece -- and the package on the porch, don't you have to say it is irrelevant that the package in the porch has been carried in the mail and put there by a postal employee? It's its character of package at that place that matters.
04-848 +++$+++ 31209 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's the character as mail that matters. Mail that's been in transmission is what matters. And this --
04-848 +++$+++ 31210 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but you can say -- then you can say exactly the same thing about the package that falls off the truck. You can characterize that. You can say, "Look, it wouldn't have been in the truck if they weren't delivering mail."
04-848 +++$+++ 31211 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ She says that.
04-848 +++$+++ 31212 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What direct --
04-848 +++$+++ 31213 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Pardon me? But you -- and you could say that there wouldn't have been any accident with the truck if the truck hadn't been delivering mail.
04-848 +++$+++ 31214 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It may not be delivering mail at the time it has an accident with you. There's no way the delivery of mail occurs without the actual delivery of mail. That's the point. But, again, you have a text here that does not admit of distinctions based on what kind of injury happens two hours later, whether it's spoiled food, an exploding package, or a trip. And if it's difficult -- this is a waiver of sovereign immunity. And the fact that this is in the text, this case doesn't involve a vehicle, and that this case raises serious concerns for the Postal Service about how it's going to handle an enormous --
04-848 +++$+++ 31215 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But can I just --
04-848 +++$+++ 31216 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- volume of mail.
04-848 +++$+++ 31217 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- this question? The case is a little bit on the border, because it's a slip-and-fall, and it does -- there may not have been negligence. We -- but we're assuming, via the allegations, they're true. But your position would apply to an intentional tort, as well as a negligent tort, I think, wouldn't it?
04-848 +++$+++ 31218 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not if it's transmission of the mail, because the exception only applies to negligent transmission of the mail. And so, if we intentionally bop you over the head with the package, that would not be within --
04-848 +++$+++ 31219 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I see.
04-848 +++$+++ 31220 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the exception.
04-848 +++$+++ 31221 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-848 +++$+++ 31222 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would that -- this is neither here nor there, I guess, but would that be within the waiver?
04-848 +++$+++ 31223 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Negligence --
04-848 +++$+++ 31224 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's --
04-848 +++$+++ 31225 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Intentional --
04-848 +++$+++ 31226 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's --
04-848 +++$+++ 31227 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- torts aren't covered --
04-848 +++$+++ 31228 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-848 +++$+++ 31229 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- by it, are they?
04-848 +++$+++ 31230 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, actually negligent or wrongful acts are covered. There's 2680(h), which covers a number of intentional torts and -- it's often referred to as the intentional-tort exception. But, actually, it wouldn't cover -- the -- bopping with a package would probably be assault. But if we deliver a package that has anthrax in it, I don't know that that would be covered. Maybe we would try and argue --
04-848 +++$+++ 31231 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, only --
04-848 +++$+++ 31232 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that's fault of the --
04-848 +++$+++ 31233 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- because you weren't intention -- your --
04-848 +++$+++ 31234 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-848 +++$+++ 31235 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- intent was not to deliver anthrax.
04-848 +++$+++ 31236 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. But not all --
04-848 +++$+++ 31237 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if the intent is to hit the person with the alligator that you're swinging --
04-848 +++$+++ 31238 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But not -- right.
04-848 +++$+++ 31239 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that would be an intentional --
04-848 +++$+++ 31240 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But not all --
04-848 +++$+++ 31241 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- tort in --
04-848 +++$+++ 31242 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- intentional torts fall within 2680(h). If I don't like you, and I intentionally deliver your mail to your neighbor, knowing that it's got your inheritance information in it, I don't think that would fall within 2680(h), which normally -- it's essentially -- largely encompasses interference with contracts rights instead of physical assault, battery, those types of claims. But, again, I think it's very important to keep in mind here that we do have -- we have text -- this is a waiver of sovereign immunity, and that this falls within the text. There are two ways of looking at it. Their way does not capture important things to the Postal Service. It doesn't seem to capture what is admitted into the mails, and it doesn't seem to capture the important decisions that are made -- it may not seem so important, in this one case, to have put the mail on the porch, but multiply it by tens of millions of times a day when that decision is made, and the decision that that balance, of putting things there in a sheltered way, hopefully that will both protect the mail and the people, instead of either reverting to person-to-person delivery for all oversized mail or making people come down, like the old days, to the Post Office to pick it up. Thank you.
04-848 +++$+++ 31243 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Counsel. Mr. Radmore, you have 7 minutes remaining.
04-848 +++$+++ 31245 +++$+++ FALSE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Just one point. The choice of what to take into the mail would be covered by the discretionary-function exception of the exceptions to the Federal Tort Claims Act. So, I think that's a red herring. And with that, if there's no questions, the Petitioner will waive the remainder of his rebuttal.
04-848 +++$+++ 31246 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you have any -- I mean, you'll be responsible, if you prevail, for all of us having to go down to the Post Office every time we get -- [Laughter.]
04-848 +++$+++ 31247 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- packages. I mean, it there --
04-848 +++$+++ 31248 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, then I'll probably --
04-848 +++$+++ 31249 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- do you have any response to that policy concern? [Laughter.]
04-848 +++$+++ 31250 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Then I'll probably be subject to some intentional torts, myself. [Laughter.]
04-848 +++$+++ 31251 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about the practical problem that was raised that, in the automobile accident, there's witnesses, there's a police report, usually; but a slip-and-fall over mail, nobody's around, these are easily made up, and the Post Office has no opportunity to check?
04-848 +++$+++ 31252 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Post Office has every opportunity, just as in any ordinary tort. All the defenses apply. In this particular case, the Post Office -- and it's been alluded to by several Justices -- would be that they have the defense of contributory negligence. They would have any defense that would be available --
04-848 +++$+++ 31253 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the point that -- I think that they were making is that there will be an investigation, on the spot, ordinarily, in the case of a vehicle collision. Post Office won't even know about the slip-and-fall until a claim is filed, which could be weeks and weeks later.
04-848 +++$+++ 31254 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But that's -- that's the situation in any tort. There doesn't have to be a police report, necessarily, in an automobile accident. And in a -- any slip-and-fall or any tort, beyond the motor vehicle accident, it's the same situation. It's not unique to the Post Office.
04-848 +++$+++ 31255 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but the volume is unique. In other words, there aren't going to, in a typical case, be a lot of witnesses, and the volume is unique. And you can't bring the postal carrier in, two years after the fact, and say, "Do you remember where you placed this parcel on this porch on this day?"
04-848 +++$+++ 31256 +++$+++ TRUE +++$+++ MR. RADMORE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's what you'd have to do to a UPS or a Federal Express employee. And I believe Solicitor General's response to Justice Ginsburg question about the number of claims that you have a year -- I believe the Solicitor General said situations like this arise ten times a year. And the Postal -- the Post Office's own handbook dealing with the handling of negligence cases sets forth procedures and policies that deal exactly with this type of circumstance. If we were to look at the handbook -- I think, Justice Kennedy referred to the handbook, and that section 141 of the Postal Investigation Handbook talks about claims that arise for personal injury or property damage during the delivery of the mail. So, at least since -- and that's been -- that was put in place in 1992, so we at least know, for the last 13 years, that they've anticipated these type of claims. And, according to the Government, there's only been ten a year. So, I don't think that there's a real concern by the Post Office that there's going to be some -- a floodgate of litigation opened up.
04-848 +++$+++ 31257 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. The case is submitted.
04-881 +++$+++ 31262 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We will hear argument next in Lockhart versus United States. Mr. Wolfman.
04-881 +++$+++ 31264 +++$+++ FALSE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Section 207 of the Social Security Act contains a broad ban on the attachment of Social Security benefits that may be overridden if, in doing so, Congress expressly refers to Section 207. Our basic position is that the effect of an express reference to Section 207 can go no further than the authority that is granted in the statute that includes the express reference. Therefore, here, the Debt Collection Act, the statute that contains that express reference, prohibits offsets to collect claims that have been outstanding for more than 10 years. Therefore, the Government lacks offset authority to collect Mr. Lockhart's older debts. The Debt Collections Act's 10-year bar on the right of the Government to offset debt from governmental payments owing to debtors was enacted in 1982. But, at that time, the Government did not have authority to offset Social Security benefits at all. The Government's claim that there's no 10-year bar here relies entirely on a provision of the Higher Education technical amendments that overrode statutes of limitations for collecting student debts. But that was passed in 1991, 5 years before the -- before -- the Government had authority to offset Social Security benefits at all. That authority, as I've referred to, came only in 1996, in the Debt Collection Improvement Act, which did expressly refer to the Social Security Act's anti-attachment provision. But --
04-881 +++$+++ 31265 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Did -- are -- just as an initial matter, are you sure that one Congress can bind a future Congress that way, that Congress can pass a law that says, you know, "In the future, no statute shall have X effect unless it says" -- and then it writes in a phrase that has to be said?
04-881 +++$+++ 31266 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-881 +++$+++ 31267 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And then you have a future Congress that makes its intent entirely clear in a statute that does not use the magic words. I thought our cases held that, in such a situation, the will of the future Congress prevails --
04-881 +++$+++ 31268 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That --
04-881 +++$+++ 31269 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- so long as it's clearly expressed.
04-881 +++$+++ 31270 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I will say that that is something that we've considered. It's not briefed here, but I think the issue is not presented here. And here's why: because in -- what occurred in 1996 comported with the express-reference requirement. The problem here is that -- so, it said that they can offset Social Security benefits. But it is contained in a statute that includes the 10-year bar. So, even if the anti-attachment provision did not exclude the express-reference provision, it still -- whatever allowed the attachment has to be, in our view, coincident with the statute in which the express reference --
04-881 +++$+++ 31271 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It didn't contain the bar at the time that they said, "You can collect it." In the later statute, which said, "You now can collect out of Social Security," when they passed that, did it contain a 10-year bar?
04-881 +++$+++ 31272 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it did.
04-881 +++$+++ 31273 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought the Higher Education Act said -- as of what year did the Higher Education Act say, "No statute of limitations applies to us"?
04-881 +++$+++ 31274 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That was 1991.
04-881 +++$+++ 31275 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Fine. In --
04-881 +++$+++ 31276 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-881 +++$+++ 31277 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- 1991, it said, "No statute of limitations applies to us." Then, in what year did the statute -- was passed which said, "And you can collect money out of Social Security payments for higher education"?
04-881 +++$+++ 31278 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That occurred in 1996. But, as I --
04-881 +++$+++ 31279 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. Why isn't that the end of it? So --
04-881 +++$+++ 31280 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The reason that's --
04-881 +++$+++ 31281 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- so there was no -- there was no statute of limitations applying to the Social Security Act; and then, in 1996, they say, "And now go get them."
04-881 +++$+++ 31282 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because --
04-881 +++$+++ 31283 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What can we do about that?
04-881 +++$+++ 31284 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because, with respect, that's not what Congress said in 1996.
04-881 +++$+++ 31285 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What did they say?
04-881 +++$+++ 31286 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They didn't say, "Go get them." What they did is, as an amendment to the Debt Collection Act, in the Debt Collection Improvement Act, they inserted permission to go -- to offset Social Security benefits in a statute that has a 10-year bar. So --
04-881 +++$+++ 31287 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It has a 10-year bar. But the earlier 1991 Act says, "That doesn't apply to us."
04-881 +++$+++ 31288 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but -- but, again, getting back -- and I think this takes us back to Justice Scalia's question -- that -- the -- there is a broad anti-attachment provision. There is an express-reference requirement. Our view is that the -- that -- those requirements can go no -- the abrogation of the -- of the bar to offset Social Security benefits, or to attach Social Security benefits in any way, can go no further than the statute in which that abrogation occurs. And this statute has a 10-year bar. So, if I can explain further, the Debt Collection Improvement Act, and the Debt Collection Act before it, has a 10-year bar. It's not merely a statute of limitations. It says that the Government has no authority to offset after the 10-year period, after the claim has been outstanding for more than 10 years. That's the statute that includes the abrogation of the offset of Social Security benefits.
04-881 +++$+++ 31289 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, in other words, you're saying that that provision of the later statute that says, "Go get them on Social Security," implicitly reads into it the 10-year bar that's in a different part of the statute.
04-881 +++$+++ 31290 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I --
04-881 +++$+++ 31291 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, it's as if it said, "Go get them on Social Security, under 407, which is gone now, but only for 10 years."
04-881 +++$+++ 31292 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-881 +++$+++ 31293 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is that what your -- I'm trying to understand this.
04-881 +++$+++ 31294 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is our argument.
04-881 +++$+++ 31295 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-881 +++$+++ 31296 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is our argument.
04-881 +++$+++ 31297 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
04-881 +++$+++ 31298 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I would only qualify it --
04-881 +++$+++ 31299 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The only problem is, it doesn't say that.
04-881 +++$+++ 31300 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I would disagree, Your Honor. I would say that my only quarrel with your question is that it's not implicit, it is explicit. The statute -- the Debt Collection Improvement Act, as the Debt Collection Act before it, contains a 10-year bar on the authority of the Government to offset. This is not a mere statute-of-limitations defense that can be waived. This is a complete lack of authority to the -- in the Government to offset. That's --
04-881 +++$+++ 31301 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are --
04-881 +++$+++ 31302 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the statute --
04-881 +++$+++ 31303 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are you saying that this has a purpose other than barring stable -- stale claims? It's simply designed to limit the offset provisions in order to allow other Federal programs to proceed and -- I'm looking for some way for you to describe (e) as being something other than a limitations provision.
04-881 +++$+++ 31304 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what it says --
04-881 +++$+++ 31305 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Because I think that would help you.
04-881 +++$+++ 31306 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and I think -- that's exactly my point. What (e) says is that this Act does not apply -- and I'm quoting now -- "This Act does not apply when the claim has been outstanding for more than 10 years." That strikes us -- you can call it "limitations" if you want, but it strikes us as a very powerful one. Because it restricts the Government's ability to bring such a case --
04-881 +++$+++ 31307 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if --
04-881 +++$+++ 31308 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- for offset.
04-881 +++$+++ 31309 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- if we call it "limitations," you have a much harder case, because of the 1991 Act.
04-881 +++$+++ 31310 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- with respect, I don't think that the actual nomenclature matters that much, but I will distinguish it from what the law normally calls a limitations period, because a limitations period is one that is raised as an affirmative defense and may be waived. This provision, where it says, "This Act does not apply" --
04-881 +++$+++ 31311 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well --
04-881 +++$+++ 31312 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- does not apply.
04-881 +++$+++ 31313 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- can you give me a reason for the Government's adopting (e), the 10-year -- the 10-year bar, other than for stale claims or --
04-881 +++$+++ 31314 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, I don't know that there is one, but my point, again, is simply that the Government has no authority to proceed. So, then we look -- we look at that statute, and we say, "What did the -- what did the Congress do in 1996?" What the Congress did in 1996 was amend that very statute by saying, "Within the confines of this statute, you may now offset."
04-881 +++$+++ 31315 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right, but that's --
04-881 +++$+++ 31316 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I understand that, but I'm just -- I'm just saying, if you could give me an explanation, a characterization, a description, a statement of purpose that's other than the bar on stale claims, I think you'd have a stronger case. But it seems to me just like a stale-claims statute, so I go back and look for other limitations period, and I find it in 1091(a).
04-881 +++$+++ 31317 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You know, again, if -- it is not -- the purposes of the bar are not stated in any of the legislative materials, and we can assume that at least one of the principal purposes was to not allow the litigation, the contesting of stale claims, or to give the individuals repose, which is a purpose of time bars.
04-881 +++$+++ 31318 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You can call it any purpose you want, but there is an earlier word in 9- -- 1091(a), just what Justice Kennedy said. The earlier word says limitations don't apply to the higher-education debt. And so, if this later statute, the words you're talking about, the words of "10 years," the words that limit when you can do it, if those words, which are in subsection (e), are a "limitation," then I guess the earlier statute says they don't apply to the higher-education debt. And so, I don't see how you get out of that. I mean -- I mean, this is a rather harsh result. I understand why you'd like to get out of it. But I don't understand how we do get out of it.
04-881 +++$+++ 31319 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think there are -- there are -- I -- there are several answers. And, if I might, first of all, if you must characterize what -- and we are happy to do so -- was in the 1996 Act as either a time bar or a limitations period, this is clearly the former, because this -- because the limitations periods in the law are ones which have to be raised by affirmative defense. For instance, the Rules of Civil Procedure say limitations periods are raised by affirmative defense, and the case law is unanimous that they can be waived. That is not what this provision does. This provision restricts the authority, in the first instance, for the Government to bring the case. The second thing I would say, though, Your Honor -- and I think it does not matter, ultimately -- that can be our principal submission here, and it is, but it does not matter -- I think, ultimately, the nomenclature doesn't matter, because -- again, because the Act restricts the authority of the Government to bring a case that is beyond the 10-year period. And that is the statute that contains the express reference. That is the --
04-881 +++$+++ 31320 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Of course, part of the problem is that 1091(a)(2), the "notwithstanding" clause, talks also specifically about offsets, which is what this is, I take it.
04-881 +++$+++ 31321 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I understand that, Your Honor. I mean --
04-881 +++$+++ 31322 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, if it had said "no" --
04-881 +++$+++ 31323 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I understand that.
04-881 +++$+++ 31324 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- "no limitations period," then I might -- this specifically talks about an offset.
04-881 +++$+++ 31325 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's right. The -- and I -- I don't think that undercuts our argument at all, because, after all, there's no question that, prior to 1996, there was offset authority in the Government to offset -- to collect debt against other types of income, other than Social Security. So, I don't think that undercuts our argument at all. But let me, if I might, go back to your question one more time, because I think there's yet a third answer, which is -- which is the chronological answer that -- made in our briefs that, in 1991, the Congress could not have had the intent to get at Social Security benefits at all, because, of course, there -- and it's -- this point is conceded -- the Government had no authority whatsoever to offset Social Security benefits. If I might, in the -- let me go --
04-881 +++$+++ 31326 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I pursue that point for a second --
04-881 +++$+++ 31327 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- more? I -- it seems to me that you would have a much stronger argument on that point if, in 1996, the Act provided that, suddenly, Social Security benefits -- some Social Security benefits would be -- would be subject to administrative offset, but only those when the Government -- imposed when the Government is trying to collect educational loans. We would then have what seems to -- would seem to me to be a really head-to-head conflict between the two statutes. The trouble is that, in 1996, the extension of the administrative setoff authority covered Social Security benefits to be -- for which there would be a setoff for any purpose -- not just educational loans; for any purpose. So that, in fact, it is possible for us to read the 1996 Act as having an effect -- there's a 10-year limit, generally -- at the same time that we read the earlier -- I forget what the -- '91, I guess it is --
04-881 +++$+++ 31328 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The HETA law, yes.
04-881 +++$+++ 31329 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- which says, with respect to educational loan collections, including by setoff, there's no limitation at all. So, we can have both statutes without rendering either one of them nugatory. And isn't that the preferred way to read statutes?
04-881 +++$+++ 31330 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but I -- but I -- with all respect, I think our interpretation certainly does not render HETA nugatory, because HETA would still override limitations periods for other forms of collection with respect to other types --
04-881 +++$+++ 31331 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But with --
04-881 +++$+++ 31332 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ of debts.
04-881 +++$+++ 31333 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- with respect to Social Security setoffs, of course, it would.
04-881 +++$+++ 31334 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it -- I'm not sure I understand that question.
04-881 +++$+++ 31335 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Social Security -- Social Security said it would be -- it would be a -- it would -- a flat head-to-head contradiction, no matter how you read it, on Social Security setoffs for educational loans.
04-881 +++$+++ 31336 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-881 +++$+++ 31337 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And if that's the only thing that the 1996 Act covered, we would say, "Boy, there is just an absolute conflict here. We can't have both statutes." But, in fact, we can have both statutes most of the time. We read the 1996 10-year limitation as covering everything except setoffs against Social Security for educational loans. And, with respect to the educational loans, we give respect to the -- to the earlier decision that there be no limitation at all. You just have a weaker argument than you would have if the 1996 Act only covered this case.
04-881 +++$+++ 31338 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that may be, but let me, again, if I -- if I might, respond to that -- to this -- to this point, because I think it is true that the proportion of times under our argument that the 10-year bar would apply would -- is greater under our position, but it is, nevertheless, true that HETA still applies to many situations, under our reading, and the 10-year bar applies to somewhat more. But let me -- I think there's another answer to your point, which is, it still does not undercut our basic submission that the Congress could not have formed this specific intent. And it's very unlike the -- the intent being to get to the Government the -- the result it seeks here. And the reason for that is -- is, they could not have focused on this problem, because in -- it wasn't for another 5 years that Social Security was even on the radar screen at all. And this brings me back, I think, to Justice Breyer's --
04-881 +++$+++ 31339 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but --
04-881 +++$+++ 31340 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- initial question.
04-881 +++$+++ 31341 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- may I ask this question? That's a very -- that's a very interesting statutory construction case, I must say, by the way. But the -- in 1996, when they made the offset available against Social Security payments, they didn't enact a 10-year statute of limitations; they changed subsection, I think, (b) to (d) and said the 10-year provision is retained. And when the 10-year provision was first put in -- I mean, when the exception for student loans was made, in 1991, you had a statute that had a 10-year period for everything except student loan recovery. And it seems to me that if you look at the 1996 statute as saying, "We're going to allow offsets against Social Security," under the same scheme that was enacted in 1991, because we had just amended the 10-year provision to preserve it -- they preserved the 10- year provision -- that they seem to me to be preserving it in a statute that made this distinction between student loans and all other offsets. Is --
04-881 +++$+++ 31342 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-881 +++$+++ 31343 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It isn't as though they enacted, for the first time, an authority to offset Social Security and, in that statute, said, "And -- but, by the way, there's a 10-year period of limitations here."
04-881 +++$+++ 31344 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that --
04-881 +++$+++ 31345 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Rather, they amended the 1991 Act.
04-881 +++$+++ 31346 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that is correct. And I think that -- but with a caveat, which I'll get to -- but -- I think that is correct, but it is a -- it is a consequence of the situation that Congress found itself in, in 1996. In other words, it already had a statute, the offset statute, which had a 10-year bar. And so --
04-881 +++$+++ 31347 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it also had the exception for student loans. It's -- it was --
04-881 +++$+++ 31348 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-881 +++$+++ 31349 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- side by side with the rest of the 10-year bar.
04-881 +++$+++ 31350 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure what you mean in that -- I'm not sure what you mean by the exception for student loans. There --
04-881 +++$+++ 31351 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it's 1091(a).
04-881 +++$+++ 31352 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, 1091 was in a different statutory provision, in a different part of the code. But yes, what I'm saying is, they --
04-881 +++$+++ 31353 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it was in the 1991 statute.
04-881 +++$+++ 31354 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. It was in a 1991 statute that was a freestanding statute that dealt with Social Security benefits, generally. Then what you had in 1996 was a focus on offsets, specifically, and on Social Security, specifically. And the only point --
04-881 +++$+++ 31355 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the '91 Act mentions offsets, specifically, as well.
04-881 +++$+++ 31356 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. And -- but it mentions a lot of -- many meanings of "collection," that is correct. And -- but I think it's not quite fair to say that they merely reenacted the 10-year bar. We think that's sufficient for us to prevail. But, you know, the Congress, in 1996, did a pretty comprehensive overall -- overhaul of the Debt Collection Act. It appears to have gone through every section. It strengthened some of the notice provisions. It focused specifically on Social Security and said that you can now offset them by making the express reference. And then it turned to -- what had been subsection (c) then became subsection (e). It amended one of the paragraphs, but retained the paragraph that has the 10-year bar. So, I think it's fair to say that Congress looked at all the sections carefully. Now --
04-881 +++$+++ 31357 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If you say that -- let me just throw this thought out, so you can comment on it.
04-881 +++$+++ 31358 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It seems to me that there is a reasonable basis for assuming Congress might have thought that student loans should not have a 10-year bar if you're going to collect from Social Security, because most Social Security payments won't accrue until many, many years -- much more than 10 years after the student-loan default.
04-881 +++$+++ 31359 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that -- the Government certainly makes that submission in its brief, but, as we note in our reply brief, the statistics the Government cites don't really back that up. I -- but we do -- we do acknowledge that, with respect to Social Security retirement benefits, there will be many people who are beyond the 10-year bar. With respect to people who get other sorts of Social Security benefits, that's not clear at all, actually. There are survivors --
04-881 +++$+++ 31360 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but there is a --
04-881 +++$+++ 31361 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and there are disability --
04-881 +++$+++ 31362 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Retirement benefits are a pretty big part --
04-881 +++$+++ 31363 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Are a --
04-881 +++$+++ 31364 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- of the whole package.
04-881 +++$+++ 31365 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- larger number, that is true.
04-881 +++$+++ 31366 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-881 +++$+++ 31367 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, again, I don't think that -- there's no -- there's no suggestion in -- the problem -- the ultimate problem with that point for the Government, Justice Stevens, is that it requires us to believe that Congress formed that intent in 1991, which is an impossibility, because --
04-881 +++$+++ 31368 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, I understand that.
04-881 +++$+++ 31369 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in 1991, Social Security benefits were just, sort of, off the table. They weren't on the radar screen at all. And that's the ultimate problem with the Government's --
04-881 +++$+++ 31370 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. --
04-881 +++$+++ 31371 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- theory there.
04-881 +++$+++ 31372 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- Wolfman, are there provisions by regulation in the Department of Education for discharge of debts like this on a showing of total and permanent disability?
04-881 +++$+++ 31373 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are, Your Honor.
04-881 +++$+++ 31374 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And your client doesn't qualify, or --
04-881 +++$+++ 31375 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the record is completely silent on that question. I don't know the answer to that. He was certainly disabled. I will only point out that the standards for total and permanent disability under the Department of Education regs are much more stringent than those for Social Security, because that only requires a 12-month period of disability. But I don't know the answer as to him. I do want to get to one other point before I sit down, and -- which is to address one of the Government's arguments -- is that to -- to get around a -- the problem that the DCIA reenacted the 10-year bar, the Government relies on the "notwithstanding" clause of the 1991 Education Act, arguing that it wipes away any time bar, regardless of when the time bar was enacted, and no matter what type of collection is at issue. But, as we note in our reply brief extensively, those "notwithstanding" clauses are not as all-powerful as the Government suggests they are. And what the case law -- the lower-court case law suggests is that you need to look, as we have done in our submission, at the legislative history and the legislative motive surrounding both Acts, the previous Act and the subsequent Act. And, here, what you have -- and I don't want to beat a dead horse, but I will repeat once again that the problem here is -- for the Government -- is that we have this very powerful anti-attachment provision with its express-reference requirement. And the only place in these statutory materials where the express reference occurs is in a -- the very Act that includes the 10-year bar. And to accept the Government's argument, you would have to accept the notion that the -- an express reference in an act can go beyond the authority that's granted by that very act.
04-881 +++$+++ 31376 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, it -- I mean, you -- it's -- it probably comes up a lot. You have -- you have the earlier act that imposes -- suppose you have some -- Endangered Species Act and -- at an earlier time -- and it says all provisions of a certain kind will have this effect in respect to endangered species. And then you have some laters act -- later acts. And, in those later acts, there are certain things about how to treat certain animals and so forth. And the question would be, "Well, does that earlier thing, telling you how to treat an endangered species, apply now to the animals in this later act insofar as they're endangered?" And the answer would be, "Of course it does" --
04-881 +++$+++ 31377 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-881 +++$+++ 31378 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- unless there's some special reason --
04-881 +++$+++ 31379 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-881 +++$+++ 31380 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- for thinking that it doesn't. And so, what's the special reason --
04-881 +++$+++ 31381 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-881 +++$+++ 31382 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- here? You have an earlier act that says, when you see those words, "10-year limitations," forget them where student loans in effect. Now we have a later act, and it has the word "10-year limitations," and you're giving some reasons why --
04-881 +++$+++ 31383 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-881 +++$+++ 31384 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- it is special and --
04-881 +++$+++ 31385 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-881 +++$+++ 31386 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- so forth. And --
04-881 +++$+++ 31387 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I --
04-881 +++$+++ 31388 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- I don't know --
04-881 +++$+++ 31389 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but I --
04-881 +++$+++ 31390 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- if they're --
04-881 +++$+++ 31391 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but I think that that's --
04-881 +++$+++ 31392 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- strong enough --
04-881 +++$+++ 31393 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's the nub of the case --
04-881 +++$+++ 31394 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Uh-huh. Yes, that is the nub.
04-881 +++$+++ 31395 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the special reasons. But -- but I -- but I -- let me -- let me -- let me answer your question --
04-881 +++$+++ 31396 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, I mean, they don't have that big burden to show. They have to just --
04-881 +++$+++ 31397 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-881 +++$+++ 31398 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- show it's normal.
04-881 +++$+++ 31399 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's where I --
04-881 +++$+++ 31400 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you have to show it's special.
04-881 +++$+++ 31401 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think, on these legislative materials, they have quite a burden. And let me explain why. Your -- the -- Justice Breyer, the hypothetical you posit is one with which I can agree. We are not saying -- I don't want to be mistaken -- that -- we are not saying that previous legislation can't have effect on future events, or even future legislation. We're not saying that all. But the nub of our argument is this express-reference requirement, and I think it's -- it seems very, very odd to us that when you have a statute that has an -- where the express reference appears, and that has a 10-year bar on the authority --
04-881 +++$+++ 31402 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, Mr. --
04-881 +++$+++ 31403 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to collect --
04-881 +++$+++ 31404 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- Wolfman, couldn't you say the question could be phrased in this way? Do we view the notwithstanding language in 1091(a) as enacted in 1091 and governing the future, or do we view the 1996 amendment as, in effect, an amendment to that stat which -- which reenacted the provisions that were already there? And if it's a reenactment in 1996, then it's just an exception from the 10-year bar.
04-881 +++$+++ 31405 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. I think that -- that is a fair characterization of one our arguments here --
04-881 +++$+++ 31406 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-881 +++$+++ 31407 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- which -- one of our arguments here is, given the various indicia of intent, both in '91 and '96, that the '96 Act, with respect to a small sliver of collections, is effectively an amendment of the '91 Act. However, that is not our only, or even our principal submission. Our principal submission has to do with the powerful anti-attachment --
04-881 +++$+++ 31408 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right.
04-881 +++$+++ 31409 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- provision.
04-881 +++$+++ 31410 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I understand.
04-881 +++$+++ 31411 +++$+++ TRUE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay? And, again, the Government's position -- and I will rest after this, because I've repeated this already -- but the -- the Government's position is, in effect, that you can use the anti-attachment position in the express-reference requirement in a statute to allow authority beyond that very statute. And we submit that that is -- that is not permissible under section 407. Unless the Court has further questions, I'll reserve the rest of my time.
04-881 +++$+++ 31412 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Wolfman. Ms. Blatt.
04-881 +++$+++ 31414 +++$+++ FALSE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: In sweeping and unqualified language, the Higher Education Act provides that, notwithstanding any other provision of law, no limitations as to time shall apply to the collection of student-loan debt by offset. Therefore, notwithstanding the general 10-year limit that applies to the offset of all Federal payments, including Social Security payments, no time limit applies.
04-881 +++$+++ 31415 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But it didn't include Social Security payments when it was enacted.
04-881 +++$+++ 31416 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. In 1982, Congress authorized --
04-881 +++$+++ 31417 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Or 1991. Either one.
04-881 +++$+++ 31418 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. In 1982, Federal payments were subject to offsets such as Federal grants or contracts or pension. And, in 1991, Congress passed a law that said there's no -- going to be no time limit for the Government to collect student-loan debt by offset. Therefore, there has always been a student-loan exception to the Government's ability to offset for only up to 10 years. So, we can't offset Federal pension payments or contract payments beyond 10 years unless it's for student loans.
04-881 +++$+++ 31419 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, but then -- but then, in -- you know, you know what's coming. You -- the provision you rely on is 3116, and it's stuck into the middle of this -- of a provision which requires written notice, opportunity to inspect records, and so forth. All those apply. But you have to say that (e) doesn't apply.
04-881 +++$+++ 31420 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, (e) is a limitations period, and it is a provision of law, and the Higher Education Act says, notwithstanding any other provision of law, there's no time limit for offsetting -- for collection by offset when it's to collect student-loan debt. What happened in 1996 is, Congress authorized Social Security benefits as another source of Federal payment. But it's critical to understand that Congress left completely undisturbed and intact that pre-existing 10-year limit and the pre-existing student-loan exception --
04-881 +++$+++ 31421 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But Mr. Wolfman tells us, Ms. Blatt, that this clause is not quite as sweeping as you suggest, the clause in the 1991 Act, and points specifically to provisions that say, "no other provision of law enacted before, on, or after." The picture we're given of the 1991 Act is that up until 1991, whatever exists up until 1991, there's no time limitation, but that this 1991 statute does not speak to subsequently enacted statutes.
04-881 +++$+++ 31422 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, well, it is unqualified, on its face, Justice Ginsburg. It doesn't say "notwithstanding any other provision of existing law." It says "any law." And it would be a rather bizarre and novel statute if Congress had to keep amending every time Congress redesignated a limitation provision, which is all that's happened here. Every time Congress had a limitation provision that changed from subsection (e) to (a), or was given a different section number, Congress would have to go back and say -- I guess, reenact the Higher Education Act every time it amended the statute of limitations. But, even if you think that it only applied to pre-existing limitations period, this 10-year limit predated the Higher Education Act. It was passed in 1982, and had -- and has appeared in identical language since 1983. Nothing happened in 1996 to statutes of limitations. All that happened was that Congress, in essence, put Social Security benefits on par, equal footing, with all other Federal payments. And let me just say, imposing a 10-year limit would largely nullify Social Security offsets to collect student-loan debt.
04-881 +++$+++ 31423 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The point that Justice Stevens made --
04-881 +++$+++ 31424 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-881 +++$+++ 31425 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- before.
04-881 +++$+++ 31426 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Ninety percent of all student-loan debtors who default do so before age 55. And, therefore, a 10-year time limit will have expired before the debtor reaches full retirement age, at age 65. And it's relevant not so much what Congress what was thinking in '91, but it's relevant for what Congress was thinking in 1996. In 1996, Congress made Social Security benefits subject to offset. And it's completely rational to think that Congress of course understood there would be a general 10-year limit that's always been applied to offsets of all Federal payments, including the Federal contract payments or pension payments, and now Social Security payments, but, yes, there's another provision of the U.S. code that contains an express and, we think, extraordinary exception. It says time limits are intolerable when it comes to the collection of student-loan debt. Now, at the same time, Social Security recipients are protected from any undue burden. The -- if you are disabled under the Department's regulations, you can obtain a complete discharge, a total walk-away-from-the-debt-forever, if you have a disability that prevents you from earning income. You also -- the amount of the Social Security offset is limited to the lesser of 15 percent of the benefit payment or the amount by which the benefit payment exceeds $750. And any debtor can enter into a repayment agreement that will take their total --
04-881 +++$+++ 31427 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Those are -- those are regulatory provisions, right?
04-881 +++$+++ 31428 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The caps, Mr. Chief Justice, are in the statute, and further limited by the regulations. But, actually, the repayment agreements are mandated provisions under the Higher Education Act. It mandates the Secretary of Education to allow debtors to enter in repayment agreements that are contingent on their income, and that will allow them to repay their debt under reasonable and affordable terms. That's also in the statute.
04-881 +++$+++ 31429 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, is the statute -- I saw something here, that a person who's going to get this offset, and he has Social Security, you exempt $9,000 of the Social Security, and then you limit it to 15 percent of the remainder or whatever is reasonable, whichever is less.
04-881 +++$+++ 31430 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's the lesser of -- it's the lesser of the 15 percent or the amount by which the benefit payment exceeds 750. So, in this case, when the original Social Security check was, I think, like, $874, 15 percent would have been a higher number. You have to leave the recipient with 750, so I think only $94 was taken out. And I may have my math a little off. But you -- the -- you give the recipient the benefit. Now, the only thing that's in the regulations, Mr. Chief Justice, are the disability, that that is just a -- it's a walkaway on the loan. Even if you win the lottery the next day, if you can show that you can't work because of a disability, the Secretary of Education will discharge your loan. Now, the principal argument on the other side is section 207 of the Social Security Act. Now, that statute requires an explicit reference before Social Security benefits can be subject to a legal process. But it doesn't require an explicit reference when the only question is the statute of limitations that are applicable to a legal process that is already otherwise expressly authorized. The Debt Collection Act is the actual statute that authorizes the offset of Social Security benefits. The Higher Education Act just lifts limitations periods when there's another statute that establishes a collection mechanism. And the Debt Collection Act contains the express reference. It provides, in 3716, that, "We're making our clear statement, we want Social Security benefits to be subject to offset." And, like I said, it just -- it plugged the Social Security system into this pre-existing --
04-881 +++$+++ 31431 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But it is -- it is true that the 1996 statute, which is the first time the express reference appears, does contain the 10-year statute by the indirect reference, and does not expressly refer to the -- cite the 1091(a).
04-881 +++$+++ 31432 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. It makes the express reference to 207, and it has this general limitations period that applies to all offsets. But, Justice Stevens, just --
04-881 +++$+++ 31433 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And it says -- and it says "offsets under this section."
04-881 +++$+++ 31434 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. And that takes you down to the subsection (e), which imposes a 10-year limit. But just as today Congress certainly is free to say, "From now on, Social Security benefits and all offsets will be subject to an 11-year limitations period," it doesn't have to expressly reference 207 to amend the Debt Collection Act. The Debt Collection Act is what's being, in effect, amended or an exception. And the Debt Collection Act doesn't contain its own express-reference requirement before it can be amended. Congress didn't say, "We're forever binding ourselves," or, "We want some different canon of interpretation here." And so, you have a very extraordinary provision in the Higher Education Act that says, "Notwithstanding any other provision of law, there's not going to be a time limit to offset in order to collect student loan" --
04-881 +++$+++ 31435 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But -- yeah, I think he's -- one argument that they're emphasizing, anyway, is that -- you look at the Debt Collection Act, and suppose it had said the following, "Section 207 is amended, or changed, as follows. We refer specially now -- we can collect, through offset, but only for 10 years. I mean, only to claims that are more than 10 years old. So, we are changing what 207 says for debts over 10 year -- under 10 years old, and we can offset those." Now, suppose it had said that.
04-881 +++$+++ 31436 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would still -- the express reference would be completely overtaken, because it says the "notwithstanding section 207." It would authorize offset for --
04-881 +++$+++ 31437 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And you'd say it's the same.
04-881 +++$+++ 31438 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For up to 10 years.
04-881 +++$+++ 31439 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. If that's the same, let's imagine this statute. The statute says, "We bestow upon the Social Security agency a very limited power." And it says, "This is the limited power. The Social Security Agency may, despite 207, levy offsets on under- 10-year-old debts." That's what they say, right in the Act.
04-881 +++$+++ 31440 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. It would -- the --
04-881 +++$+++ 31441 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And then, indeed, the whole point of it -- it's entitled "Limited Offset Ability," parenthesis -- "Limited Offset Ability (Extending Only to Debts of Less than Ten Years)," end parenthesis. That's the title of the Act, and then it says just what I say, repeating that.
04-881 +++$+++ 31442 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Well, our position is that the Social Security Act only requires an express reference to create authorization to offset.
04-881 +++$+++ 31443 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you're not going to treat that --
04-881 +++$+++ 31444 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
04-881 +++$+++ 31445 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- one the same. You see, what they're saying here is -- they want to say that what I've just said is what Congress wrote in this Act. And --
04-881 +++$+++ 31446 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-881 +++$+++ 31447 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- I'm making it harder and harder for you to accept that saying --
04-881 +++$+++ 31448 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Well, our --
04-881 +++$+++ 31449 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- automatically.
04-881 +++$+++ 31450 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- fundamental position -- -- I'll be clear on this -- is that the Higher Education Act applies unless it's been repealed. And there's just nothing in the Higher Education Act that comes close to repealing -- in, excuse me, the Debt Collection Act -- that comes close to repealing the Higher Education Act, because it doesn't address the subject of student loans. It just speaks to the ability to offset Social Security benefits, as well as all other Federal payments that have been subject to offset.
04-881 +++$+++ 31451 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Ms. Blatt, can I ask -- there's no discussion -- legislative history in the briefs that I -- because I -- that I recall. Is it true that the people voting on the bill in 1996 had nothing but the amendment before them? Did they have a committee report on it explaining that it still applied to the -- that the -- that the "notwithstanding" clause in 1091(a) would still be in effect?
04-881 +++$+++ 31452 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I know of no statement to that effect. But I know of no statement -- any discussion about limitations period. There's no discussion of the 10-year limit either.
04-881 +++$+++ 31453 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Because it seems to me that, conceivably, a legislator looking at the bill all by itself, not getting out the earlier provisions of the code, might well think, "Well, this includes a 10-year limit."
04-881 +++$+++ 31454 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Maybe they did, maybe they didn't. Maybe the knew that a court would actually apply the U.S. code, as written --
04-881 +++$+++ 31455 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-881 +++$+++ 31456 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and just because it -- the limitation period was in one section -- but, now, here's where I think the policy does come into play. A legislature would think that a 10-year limit would never come in to offset Social Security benefits on student loan, except in a rare case of an old debtor who -- and also defaults close in time to age 65. And, like I said, 90 percent of all the student-loan defaults are by debtors who are under age 55, and over -- about 83 or 84 percent of all Social Security payments are under the retirement system, not the disability system. And if a person is disabled, there's no reason to think that they can't get a discharge of that loan. So, all we're talking about is basically rendering a dead letter Social Security offsets to collect student-loan debt, if Petitioner's position were to prevail.
04-881 +++$+++ 31457 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why can he get a discharge if he's disabled?
04-881 +++$+++ 31458 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You can get a discharge of your loan if you have a disability of indefinite duration that prevents you from working. The rationale is, sort of, a changed-circumstances rationale. If you took out a loan, you signed a promissory note, you intend to pay it back. But if you later become disabled, and that disability is going to prevent you from ever working, they'll discharge it. Now, about 30 percent of all people who do apply for this disability discharge do get it, and about 80 percent get a conditional discharge, what gives them -- it gives them a 3-year grace period. And the only difference between -- I mean, there are some small differences, but the main difference between a Social Security disability determination and an Education Department disability determination is the Department of Education wants you to be disabled of an indefinite duration, and not just 12 months, because it's a complete and total walkaway from the loan. And Social Security will actually do a lookback after 12 months. But Education will never go back and ask for the money. Once they've discharged it, it's a permanent discharge.
04-881 +++$+++ 31459 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Ms. Blatt, it -- was this statute -- I'm just really kind of curious that something this important, we're first putting this burden on Social Security -- it's a fairly important change. Was this part of one of these omnibus bills that covered 99 different subjects at once?
04-881 +++$+++ 31460 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I --
04-881 +++$+++ 31461 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That --
04-881 +++$+++ 31462 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I remember trying to find it on Westlaw. It's, like, 3,000 pages. It's --
04-881 +++$+++ 31463 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-881 +++$+++ 31464 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- huge. And it covers many, many different subjects.
04-881 +++$+++ 31465 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And they did not have a separate committee proceeding on each separate part of that monster bill --
04-881 +++$+++ 31466 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That --
04-881 +++$+++ 31467 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- as I remember.
04-881 +++$+++ 31468 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That, I don't recall. But I can say the overall thrust -- and it's in their statement of purpose -- was to improve the Government's debt-collection --
04-881 +++$+++ 31469 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-881 +++$+++ 31470 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- efforts. And what it did was, for the first time -- and this was a very significant development -- establish a centralized offset. Before 1996, there was no ability to cross-check a debt from one agency to a payment to --
04-881 +++$+++ 31471 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right.
04-881 +++$+++ 31472 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- another agency, such that one Department had no idea what another Department was doing. And now it is a massive program involving over $1 trillion of Federal payables, $255 billion of certified debt, and 33 billion of that is education loan debt. And so, that -- this was to -- an enormous undertaking to start that, in 1996. And one of the things that Congress did in setting up this massive program was, made Social Security benefits part of the offset program. There's about $480 or $490 billion in Social Security benefits, so -- which -- it was a huge source of revenue, although Congress obviously limited it substantially with the caveat. And if there are no further questions, we would ask that the Court of Appeals judgment be affirmed.
04-881 +++$+++ 31473 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Ms. Blatt. Mr. Wolfman, you have three and a half minutes remaining.
04-881 +++$+++ 31475 +++$+++ FALSE +++$+++ MR. WOLFMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. I want to address, first, a point that the Government makes, that -- and it's about Section 207 of the Social Security Act, the anti-attachment provision. Opposing counsel says that it doesn't really matter that the 10-year bar was not addressed in 1996, because all that's necessary under the express-reference provision is to refer to the law, in general, that it doesn't apply to limitations periods. But that simply cannot be the case here, because, again, this statute that we are talking about, the Debt Collection Improvement Act, and the Debt Collection Act before, is a bar on the authority of the Government to collect after 10 years. And let me pick up on the language that Justice Kennedy pointed to from the Debt Collection Act. It says, in the very subsection in which Social Security first was put on the radar screen, was first dealt with, (c)(3)(a)(i) -- it says that you can now go after Social Security benefits, because they are subject to offset under this section, meaning 3716. Then, if you turn to another subsection of that section, it says -- and this is the 10-year bar -- this section, quote, "does not apply," end quote, to a claim under this subchapter that has been outstanding for more than 10 years. Now, I don't see any reason to say that 207, the requirement of an express reference, is, sort of, a halfway requirement. In other words, "You only have to refer to Social Security benefits. We don't care what the extent of that authority is in the very section that you use that express reference." Here, the entire authority is circumscribed by the 10-year bar. That is our essential submission. I have one other point, which is that the -- because there was a number of questions on it. We think it doesn't go to the congressional intent here, but I do want to clarify. There is a substantial difference between being disabled and being eligible to get the discharge. Discharge requires permanent disability -- forever, you cannot -- you are not capable of working. In Social Security law, you have to be incapable of working for a period of 12 months. Thank you.
04-881 +++$+++ 31476 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Counsel. The case is submitted.
04-885 +++$+++ 31481 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Central Virginia Community College versus Katz. Mr. Thro.
04-885 +++$+++ 31483 +++$+++ FALSE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: This case involves a conflict between two constitutional values. On the one hand, Congress has the sovereign power to make laws which apply to everyone, including the States. On the other hand, the States have sovereign immunity from all aspects of suit. In the past, this Court has reconciled this conflict by drawing a line between sovereign power and sovereign immunity. States are bound by Federal law, but the States are immune from monetary damages for violations of those laws. In the bankruptcy context, this line means the States are bound by the discharge decisions, but that the States are immune from the trustee's attempts to augment the estate through monetary judgment.
04-885 +++$+++ 31484 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can you tell us how often States are creditors in bankruptcies around the country? Do you have any idea?
04-885 +++$+++ 31485 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is some information to that effect in the amicus brief of Ohio and every other State of the Union, Justice O'Connor, but my recollection is that the States are creditors in probably the majority of bankruptcies around the country.
04-885 +++$+++ 31486 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, if you're correct, how would the result you want affect all the other creditors in these bankruptcies?
04-885 +++$+++ 31487 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would have some impact on the other creditors, in that you would not be able to augment the estate by collecting a monetary judgment from the State.
04-885 +++$+++ 31488 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And probably, on your theory, States can disregard the automatic stay that issues --
04-885 +++$+++ 31489 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, not at all --
04-885 +++$+++ 31490 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- when a bankruptcy --
04-885 +++$+++ 31491 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Your Honor.
04-885 +++$+++ 31492 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- commences?
04-885 +++$+++ 31493 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Under our -- under our theory, the -- theory, the States are bound by the automatic stay. The States are also bound by --
04-885 +++$+++ 31494 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How is that, on your theory?
04-885 +++$+++ 31495 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because --
04-885 +++$+++ 31496 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why wouldn't the sovereign immunity extend to that?
04-885 +++$+++ 31497 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The automatic stay is an exercise of sovereign -- of the sovereign power of Congress, just as the discharge decisions of a bankruptcy court are an exercise of the sovereign power of Congress. The States are bound by the discharge decisions. States are also bound by the automatic stay. Where we draw the line is where the trustee attempts to get a monetary judgment as a means of augmenting the estate, which is what is happening with this case.
04-885 +++$+++ 31498 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why don't we say that that's the exercise of the sovereign power of commerce, just -- of Congress, just like you said? That --
04-885 +++$+++ 31499 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The automatic --
04-885 +++$+++ 31500 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, it seems that that answer is just conclusory, that it's an exercise of the sovereign power of Congress, okay. That's just -- that's just a conclusion. That's not a reason.
04-885 +++$+++ 31501 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. The -- this Court's decisions have struck a balance between respecting the need for the States to obey Federal law and, at the same time, respecting the constitutional value of the States' sovereign immunity. What we have here in -- with respect to the automatic stay and with respect to the discharge decisions, is States being bound by Federal law, no different than the States being bound by the minimum wage law, for example. But what we have with respect to the trustee's attempts to augment the estate by collecting a monetary judgment against the States is an attempt to invade the State treasury, which this Court's decisions clearly state is barred by sovereign immunity.
04-885 +++$+++ 31502 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Tell me, if you're -- if you're right -- let's suppose you're right. I'm over here. That's -- [Laughter.]
04-885 +++$+++ 31503 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sorry, Justice Breyer.
04-885 +++$+++ 31504 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's all right. So, it's hard to figure out, because the direction -- you can't tell by the sound. I don't know if there's a modern system that would help with that, but -- you're right. Suppose that the State -- suppose you're right. What I'd worry about -- and I'd like your response to this -- is that in bankruptcies, or weak firms -- a lot of firms are weak, and they owe a lot of money to the States. So, the States figure this out after a while. It takes a few years to seep through, but once they see what they can do, they say, "Here's what we'll do. Settle your claims against the State, which happen to be pretty good, for 50 cents on the dollar. Give us the money. And you're -- we're out of it." So, they settle it. A month later, bankrupt. Now, two things have happened. The States got 50 cents on the dollar, every other creditor gets 5 cents on the dollar, because they were a month ahead of it. The second thing that happened is, the creditor -- the firm lost the chance to come in and be rehabilitated. So, the result of this is two bad things: bankruptcy's law's basic purpose, to treat creditors fairly, bankruptcy law's basic purpose, to give firms a chance to rehabilitate, are both seriously undermined. So, given the Bankruptcy Clause in the Constitution, how is it possible to say that Congress does not have the power to prevent those two very, very seriously harmful results -- harmful in terms of the basic purpose of the Bankruptcy Clause?
04-885 +++$+++ 31505 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the Constitution -- specifically, the eleventh amendment -- confirms that the States are not to be treated like private parties. Private parties are not immune from contract actions; States are. Private parties are not immune from torts -- from tort actions.
04-885 +++$+++ 31506 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But there is not a Tort Clause of the United States Constitution. There is not a Contract Clause. And there is a Bankruptcy Clause.
04-885 +++$+++ 31507 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is a Bankruptcy Clause, Your Honor, and that clause empowers Congress to make bankruptcy laws which apply throughout the entire Nation and which apply to the States. However, the Bankruptcy Clause does not authorize Congress to abrogate the State's sovereign immunity from suit. When -- while abrogation can be accomplished using other provisions, it cannot be accomplished using the bankruptcy provision.
04-885 +++$+++ 31508 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Bankruptcy Clause presumably does not allow Congress to set up the bankruptcy law in such a way that it would amount to a taking of property without just compensation, right? Wouldn't allow another constitution to be violated. So the only question here is whether the constitutional protection of States' sovereign immunity can be taken away by the Bankruptcy Clause; whereas, other provisions clearly can't, right?
04-885 +++$+++ 31509 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. And this Court said, in Seminole Tribe, that the Article 1 powers could not be used to take away, or to abrogate, the States' sovereign immunity. Now, obviously, section 5 of the fourteenth amendment can be used to do it, but there is no suggestion that Congress used section 5 of the fourteenth amendment in enacting its attempt to abrogate sovereign immunity.
04-885 +++$+++ 31510 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, may I ask, how do you -- how do you reach the conclusion that you're bound by the automatic stay and the discharge? Why aren't those also an infringement of State sovereignty?
04-885 +++$+++ 31511 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think there is a strong argument which can be made that both the automatic stay and the discharge decisions infringe upon State sovereignty. However, this Court's decisions, dating back to at least New York versus Irving Trust in 1933, have made it clear that the States are bound by the provisions of the discharge orders. I think, also, the automatic stay is something similar to the Ex Parte Young doctrine, in terms of the States being enjoined from doing something else. However --
04-885 +++$+++ 31512 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ To say -- to say that the State can't be sued is not the same thing as saying that the State can sue, is it? You --
04-885 +++$+++ 31513 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it's not, Your Honor.
04-885 +++$+++ 31514 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you can prevent the State from suing, even though you can't sue the State. There's no incompatibility, is there?
04-885 +++$+++ 31515 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, there's not, Your Honor. What we have --
04-885 +++$+++ 31516 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now, do you -- do you agree that there are situations where, notwithstanding the sovereign immunity of States, there can be in rem jurisdiction in a court to resolve claims against property --
04-885 +++$+++ 31517 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certain --
04-885 +++$+++ 31518 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- and bind the State, as well?
04-885 +++$+++ 31519 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly, this Court's decisions indicate that, in some instances, there can be in rem decisions which --
04-885 +++$+++ 31520 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, maybe bankruptcy estates are one such instance.
04-885 +++$+++ 31521 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As this Court noted in Hood, the bankruptcy decisions regarding the discharge are in rem and, of course, are binding upon the State. But what we have here is not an in rem proceeding. As this Court noted in Nordic Village, an action to recover a preferential transfer claim is not an in rem proceeding. Rather, as this Court noted in Schoenthal versus Irving Trust in 1932, and Granfinanciera versus Nordberg in 1989, actions to recover preferential transfer are much like actions to recover a contract claim. That is, like a contract claim, they do not involve the core bankruptcy proceedings, but, rather, involve matters that are -- or controversies that are tangential to the core bankruptcy proceedings. They're nothing more than an attempt to augment the State. And where we would draw the line, and where we propose that this Court draws -- draw the line -- and a line that we believe is consistent with this Court's previous decisions -- is that the States are bound by discharge, the States are subject to the automatic stay, but the trustees' attempts to obtain monetary judgments, and thereby augment the value of the estate, are barred by sovereign immunity.
04-885 +++$+++ 31522 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Wouldn't it at least be theoretically possible to differentiate between setting aside a preference, on the one hand, and just bringing a suit for a tort or a breach of contact, on the other? One could treat the assets that are -- were transferred prematurely -- or hastily, whatever you call it -- as part of the estate. At least it's conceptually possible.
04-885 +++$+++ 31523 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Conceptually, it's possible. And certainly there is an argument that the bankruptcy code says that preferential transfer is, in fact, property of the State. With respect, however, to a preference to a State, we would say that that particular reading, as applied to the State, is unconstitutional. I don't believe Congress can make a law which would require the State to divest money or something to which the State has in its possession in which the State has a colorable claim of ownership. Here, there is no dispute that the money is in the State treasury. What they are trying to do is to recover a monetary judgment from the State. As this Court said in Schoenfeld [sic] and in Granfinanciera, this is very much like a contracts claim.
04-885 +++$+++ 31524 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I suppose you could say that a -- the intangible of a contract claim is part of the estate, too, right? It's --
04-885 +++$+++ 31525 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The current bankruptcy code does not say that. In theory, I --
04-885 +++$+++ 31526 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, I mean, you could be -- there's no less reason to say that that's part of the res than there is to say that the preferential transfer is.
04-885 +++$+++ 31527 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. And just as the contract claims are barred, so are the preferential --
04-885 +++$+++ 31528 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Except Congress --
04-885 +++$+++ 31529 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- transfer claims.
04-885 +++$+++ 31530 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- has drawn that very distinction hadn't it?
04-885 +++$+++ 31531 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, Your Honor?
04-885 +++$+++ 31532 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I said Congress has drawn the distinction that -- between the preferential claim and the contract claim.
04-885 +++$+++ 31533 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Congress has drawn a distinction between preferential transfer claims and contracts claims. However, this Court has noted that the difference between an action to recover a contract claim in order to augment the estate and an action to recover a preferential transfer in order to augment the estate, that there really is no difference. Both are --
04-885 +++$+++ 31534 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the theory of the second is that you're not augmenting the estate, you're merely preserving the estate, isn't it?
04-885 +++$+++ 31535 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think -- Congress has certainly defined the estate so that a preferential transfer is considered property. I'm not sure that Congress can do that when the preferential transfer involves the estate. That strikes me as the effect of Congress, in effect, saying that property which clearly belongs to the State no longer does. I think that's probably an affront to tenth amendment federalism concerns. But what we do have here is a situation where, like in a breach of contract claim, they are trying to recovery a monetary judgment in order to augment the estate. It's our position that that is barred by sovereign immunity.
04-885 +++$+++ 31536 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, now --
04-885 +++$+++ 31537 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What if the --
04-885 +++$+++ 31538 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- Mr. Thro, doesn't the Respondent want to dismiss the contract claims here?
04-885 +++$+++ 31539 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Respondent had asked the bankruptcy court -- after reading our brief, the Respondent asked the bankruptcy court to dismiss --
04-885 +++$+++ 31540 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. So, why do you insist that they be adjudicated?
04-885 +++$+++ 31541 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I think this is an attempt by the Respondent to rewrite the question presented. Neither --
04-885 +++$+++ 31542 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but why --
04-885 +++$+++ 31543 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- our petition --
04-885 +++$+++ 31544 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- why should we force a plaintiff below to pursue claims they want to give up? That just seems so odd to me.
04-885 +++$+++ 31545 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is rather odd, Your Honor, but my read of this Court's rules are that there is no mechanism for a Respondent, the party that won below, to, in effect, give up its victory once they get in this Court. I'm not quite sure why they wish to drop the breach of contract claims. Perhaps they feel that by dropping the breach of contract claim, they somehow obtain a tactical advantage. And, if that's the case, certainly this Court should not allow them to rewrite the question presented in order to obtain a tactical advantage. But, in any event, both the breach of contract claim and the preferential transfer claims are attempts to augment the estate and are barred by sovereign immunity.
04-885 +++$+++ 31546 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, do you think the waiver argument that's made is properly before us?
04-885 +++$+++ 31547 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The waiver argument is not properly before you. It was not passed upon by the Court of Appeals below. Moreover, it was, for the most part, not preserved in the Court of Appeals below. While they did argue that Virginia Military Institute waived sovereign immunity for all claims involving Virginia Military Institute in the Sixth Circuit, they made no such argument that filing proof of claim constituted a waiver of sovereign immunity for the transactions involving the other institutions.
04-885 +++$+++ 31548 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You may be right about that, but, while I've got you here, let's assume just one State entity, not multiple State entities. And the State has received a preferential transfer of $2,000. It still has an outstanding claim -- a different claim against the same bankrupt for $1,000. And it goes in to enforce its claim for $1,000. Could we hold, consistently with the eleventh amendment, that that is a waiver?
04-885 +++$+++ 31549 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that this Court's decisions indicate the following position. When a State files a proof of claim, it exposes itself to the trustee's defenses to that claim. So, in other words, if the -- if the -- if the preferential transfer was part of the same transaction or occurrence --
04-885 +++$+++ 31550 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, different claim. The --
04-885 +++$+++ 31551 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Different claim.
04-885 +++$+++ 31552 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ One, the State received $2,000 worth of taxes, but it -- still have its $1,000 contract claim.
04-885 +++$+++ 31553 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Then I believe that this Court's opinions indicate that that would not be a waiver with respect to the different transaction or occurrence. Certainly, by filing the proof of claim you would expose yourself to the trustee's defenses with respect to the same transaction or occurrence.
04-885 +++$+++ 31554 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Go --
04-885 +++$+++ 31555 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So was -- there's a section of the Bankruptcy Act -- I think it's 160(c) [sic] -- that says if it's an unrelated transaction, then -- so, it would be a permissive counterclaim if we had ordinary civil proceedings. Then there can be a setoff to the extent of the claim that's being made against the bankrupt estate. There can't be any affirmative recovery, as there could be with a permissive -- with a compulsory counterclaim. But you're saying that that section is unconstitutional -- 160(c) [sic]?
04-885 +++$+++ 31556 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To the extent that 106(c) goes beyond the rule announced in Gardner, then, yes, it has constitutional problems. But you need not reach the constitutionality of 106(c). What we were talking about here is basically a straightforward application of this Court's precedence in a line that you have drawn in other contexts.
04-885 +++$+++ 31557 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if we're talking just about VMI, not about the other schools, then you -- if this claim is unrelated, so that it would be a permissive counterclaim, then you would say not even against VMI could you have the setoff.
04-885 +++$+++ 31558 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. In -- this Court's decisions dealing with what effect happens when a sovereign entity initiates litigation indicate that the sovereign, by initiating litigation, certainly exposes itself to defenses, but does not expose itself to affirmative recoveries.
04-885 +++$+++ 31559 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But why shouldn't a setoff be a defense, even if it's unrelated? I mean, there were such things in -- at common law, were there not, that you could set off an unrelated debt?
04-885 +++$+++ 31560 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. And to the extent that a setoff is a defense, it would be permitted. But I may have misunderstood your hypothetical that you were talking about, a setoff which involved an affirmative recovery against the State.
04-885 +++$+++ 31561 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, I mean a setoff --
04-885 +++$+++ 31562 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
04-885 +++$+++ 31563 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- only --
04-885 +++$+++ 31564 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Then I misunderstood your hypothetical. I'm sorry, Your Honor.
04-885 +++$+++ 31565 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Thro, I -- am I correct in assuming that if the -- if the preference in a case like this, that had been given to the State, were not a bank transfer, a check, but were some tangible object, like a gold bar, that there would be in rem jurisdiction on the part of the court to get the gold bar back as a -- even though its function is that of a preferential transfer?
04-885 +++$+++ 31566 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Your Honor. I -- although this Court has recognized certain in rem exceptions to sovereign immunity, particularly in the admiralty context, this Court has never recognized -- said that sovereign immunity allows a Federal court to order the State to return something where, number one, it's in the State's possession, as it would be in your hypothetical, and, number two, the State has at least a colorable claim of ownership, which, if I understood your hypothetical correctly, the State does have a colorable claim of ownership. But you need not reach -- deal with the intangible or personal property issues. The only thing that is at issue here is a demand for a monetary judgment.
04-885 +++$+++ 31567 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's -- with respect to -- I mean, you can say that of any claim that is valued in dollars. But, I mean, your -- you know, what I'm getting at is your position that there is no distinction to be drawn between the contract action and the preferential transfer. And my point was, some transfers might be satisfied -- might be sought in what, at least in the traditional classification, would be an in rem, rather than an in personam, action. Would your answer be any different if the -- if the gold bar were simply sitting on the -- on the desk of some State purchasing agent, as opposed to deposited in the -- in the State treasury or sold by the State for the monetary value?
04-885 +++$+++ 31568 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As I understand this Court's decisions on this, if the -- if the property is in the possession of the State, and if the State has a colorable claim to ownership, then sovereign immunity will bar the -- a court --
04-885 +++$+++ 31569 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay, so --
04-885 +++$+++ 31570 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a Federal court order to --
04-885 +++$+++ 31571 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- in effect, you're saying there are some in rem exceptions, but not all in rem actions are exceptions. And this would not --
04-885 +++$+++ 31572 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court has certainly recognized certain in rem exceptions, notably in the Treasure Salvors case, where the State did not have a colorable claim to title, and also in Deep Sea Research, where the State did not have possession of the object. Also, in the Whiting Pools case, the Federal Government had possession of a intangible asset, but it was clear that the debtor still had the ownership interest, and this Court said that, in that circumstance, the Federal court would -- could order the return.
04-885 +++$+++ 31573 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I suppose you could have a contract action that -- in which the State promises to turn over a particular parcel of land that it owns, or even, for that matter, a gold bar that is on somebody's -- some State functionary's desk. And I guess you could have a suit for that gold bar or for the piece of property. And I guess you could call that an in rem action, if you wanted to. But it wouldn't be.
04-885 +++$+++ 31574 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. It would be a gross in -- a radical in -- expansion of in rem jurisdiction. Traditionally --
04-885 +++$+++ 31575 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, because --
04-885 +++$+++ 31576 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in rem --
04-885 +++$+++ 31577 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- because we normally deal with that as specific performance of the contract, and what -- you know it's in rem, in the sense that we're talking about an object, but that's not what we mean, traditionally, by "in rem jurisdiction," is it?
04-885 +++$+++ 31578 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Traditionally, in rem jurisdiction has a couple of characteristics. One is, it is -- it is everyone against the world. It binds --
04-885 +++$+++ 31579 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, you sue -- in effect, you sue the race, rather than --
04-885 +++$+++ 31580 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-885 +++$+++ 31581 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- than the person.
04-885 +++$+++ 31582 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
04-885 +++$+++ 31583 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And in the -- in a -- in a specific performance contract action, you sue the person.
04-885 +++$+++ 31584 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. And a specific performance contract action, while barred in Federal court, would, of course, be allowed in State court, to the extent that Virginia has --
04-885 +++$+++ 31585 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about a rescission action in which the private party has conveyed property to the State, and the State doesn't pay, and the private party seeks to rescind the action and to receive back the property that it turned over, which is real estate or a gold bar? Could that not --
04-885 +++$+++ 31586 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-885 +++$+++ 31587 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- not be a -- characterized as an in rem action? He's seeking back the property he gave over.
04-885 +++$+++ 31588 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe it could be characterized as an in rem action, given the traditional understandings of "in rem." But, regardless of whether you call it "in rem" or "in personam," sovereign immunity would still bar such a thing in Federal court. This Court has never said that there is an in rem exception to sovereign immunity. To the contrary, you explicitly rejected an in rem exception to sovereign immunity in Nordic Village, at least where money was concerned. You have allowed recovery in certain limited circumstances, such as the admiralty cases. Those do not exist here. This is not an in rem proceeding. Preferential transfer is not an in rem proceeding under Nordic Village. Moreover, as this Court's opinions in Schoenthal and Granfinanciera make clear, it's more -- it's a traditional sort of common law, similar to a contract action.
04-885 +++$+++ 31589 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'd like to get away from in rem and back to the waiver aspect that's being argued here. Let's assume that there is an offset obligation that the State has to comply with, that there's been a preference and it has another claim, and with just one entity. If that's true, it seems to me somewhat unfair to say that the State can proceed on multiple fronts with different entities and fractionate its immunity so that if there are more than three entities -- or if there are three or four entities, each one is judged separately as to the offset obligation. It seems to me that if one State entity is subject to offset, then all of them are.
04-885 +++$+++ 31590 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe --
04-885 +++$+++ 31591 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Otherwise, the State immunity, it seems to me, can be -- can be fractionated.
04-885 +++$+++ 31592 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I believe that this Court's decisions in the bankruptcy context draw the line with respect to the same transaction or occurrence. So, to the extent that it arises out of the same transaction or occurrence, then you've got that, sort of, partial or limited waiver. Where --
04-885 +++$+++ 31593 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I --
04-885 +++$+++ 31594 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- however, with --
04-885 +++$+++ 31595 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I thought, with respect to Justice Ginsburg's colloquy -- and my own, earlier -- that we said that there is an offset obligation, even if they're different claims.
04-885 +++$+++ 31596 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is an offset. I --
04-885 +++$+++ 31597 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And now -- and now I want to extrapolate from that to multiple entities, each of which asserts its own immunity.
04-885 +++$+++ 31598 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. I think the offset obligation -- my understanding of Justice Ginsburg's hypothetical was that the -- was that we were talking about an offset that would not be an affirmative recovery, but would merely be using as -- an offset as one of the trustee's defenses to the claim.
04-885 +++$+++ 31599 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Against the entire State --
04-885 +++$+++ 31600 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Against the entire State.
04-885 +++$+++ 31601 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- including any money owed to the other -- to the other State institutions. You acknowledged that that --
04-885 +++$+++ 31602 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-885 +++$+++ 31603 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- offset could be --
04-885 +++$+++ 31604 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-885 +++$+++ 31605 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- applied not just against the college here, but against the --
04-885 +++$+++ 31606 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
04-885 +++$+++ 31607 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- other entities.
04-885 +++$+++ 31608 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The offset with respect to that particular -- with respect to that particular transaction or occurrence, not to the other transactions or occurrences.
04-885 +++$+++ 31609 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, you're not -- I thought your position was: VMI, okay. If they filed a claim, then they're open to affirmative recovery if it's a compulsory counterclaim; offset, if it's a permissive counterclaim. But I thought you said, as to the three other schools, no waiver. There's not -- no way you can lump them in. I thought that was --
04-885 +++$+++ 31610 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-885 +++$+++ 31611 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- your position.
04-885 +++$+++ 31612 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is no way that you can lump in the other three schools. With respect to VMI, by filing a proof of claim, VMI exposed itself to the trustee's defenses. To the extent that the setoff is a defense for the trustee, then, of course, that setoff would apply to VMI. Before I sit down, I'd like to make three points. First, Seminole Tribe controls. Congress may not use its Article 1 Bankruptcy Clause to abrogate sovereign immunity. Second, to rule in favor of Virginia does not require any alterations in this Court's jurisprudence; however, to rule for Mr. Katz on any theory requires certain fundamental changes in this Court's jurisprudence. Finally, regardless of context, sovereign immunity bars monetary judgment claims. States are immune from contract actions; private parties are not. States are immune from court actions; private parties are not. States are immune from actions by the trustee to augment the estate; private parties are not. Thank you.
04-885 +++$+++ 31613 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. Ms. Lewis.
04-885 +++$+++ 31615 +++$+++ FALSE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The -- if the States are permitted to opt out of the collective bankruptcy process, and they're permitted to disregard Federal preference statutes with impunity, it will have a negative effect on the bankruptcy process. States are large creditors.
04-885 +++$+++ 31616 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's the same problem in the patent area, isn't it? And yet, in the Florida Prepaid cases, we've enforced the sovereign immunity with respect to patent proceedings.
04-885 +++$+++ 31617 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, in the Florida Prepaid case, there was an alternative State remedy. In that case the plaintiff could sue the State of Florida -- I'm sorry -- yes, could sue the State of Florida in that particular case. In this case, they can't do that. There is a -- an estate representative, who has one option, and that option, to preserve the collective benefit of the estate, is to sue the estate -- or to sue the State in the bankruptcy court.
04-885 +++$+++ 31618 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Assuming that's so, for sovereign immunity purposes, why should it make a difference?
04-885 +++$+++ 31619 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For -- well --
04-885 +++$+++ 31620 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, I mean, this is a tougher case, but if sovereign immunity is the issue, why does it make any difference?
04-885 +++$+++ 31621 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do believe that it makes a difference that there is no alternative remedy. However, in this case, I don't think --
04-885 +++$+++ 31622 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why? What does that have to do with the theory of sovereign immunity?
04-885 +++$+++ 31623 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure that it has anything to do, directly, with the theory of sovereign immunity, but --
04-885 +++$+++ 31624 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Believe me, I -- I mean, I -- as you know, I'm not a big fan of sovereign immunity in these circumstances, but I'm not quite sure how to get around it, based on the fact that there is no alternative remedy here.
04-885 +++$+++ 31625 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Souter, the thing that I think is very troubling in this case is that there's a very basic bankruptcy policy, and that basic bankruptcy policy on preferences is equality of distribution and to prevent abusive debt-collection practices on the eve of bankruptcy.
04-885 +++$+++ 31626 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Then, basically, you're making the argument from the uniformity phrase -- uniform bankruptcy laws. That's essentially your argument. And you're saying, in the -- in this case, that that trumps the sovereign immunity, and that gets you out of Seminole Tribe.
04-885 +++$+++ 31627 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that it -- I believe that it does, Your Honor. But I -- I'm not sure the Court even has to reach the uniformity argument in this case, because the fact that Virginia Military Institute, on behalf of the Commonwealth of Virginia, waived its sovereign immunity.
04-885 +++$+++ 31628 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, but, of course, that doesn't hold true for the other agencies, necessarily, unless you think VMI can waive it for all of them. That seems to me to be only a partial argument.
04-885 +++$+++ 31629 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice O'Connor, the -- VMI waived the only sovereign immunity that existed, which was the Commonwealth of Virginia's sovereign immunity. And, as a result -- all of the agencies of the Commonwealth of Virginia served as unitary creditors -- and so, when VMI waived the only sovereign immunity that existed, there was nothing left to waive. And, at that point, the recoveries of the estate -- which were recoveries against other agencies, not only VMI -- were -- the Respondent was permitted to bring those actions.
04-885 +++$+++ 31630 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your waiver argument is -- is it under 106(b) or 106(c)? It's beyond both of those, isn't it?
04-885 +++$+++ 31631 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Chief Justice, it's not under 106(b) or 106(c), because the waiver of sovereign immunity -- 106(a) provides that, with respect to preference claims --
04-885 +++$+++ 31632 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's an abrogation, that's not --
04-885 +++$+++ 31633 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That --
04-885 +++$+++ 31634 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- a waiver.
04-885 +++$+++ 31635 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that's correct, Your Honor.
04-885 +++$+++ 31636 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, my question would be, How can you argue in favor of waiver when you have a statute with a much more limited waiver, the limits in 106(b) and 106(c), and you're saying, "Well, they waived it much more broadly"? It would seem to me that the most you can argue is that there was a waiver under 106(b) or 106(c), but that doesn't get rid of the whole case.
04-885 +++$+++ 31637 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I don't believe that 106(b) or 106(c) limits the waiver in this case, because, again, the sovereign immunity that was waived was the sovereign immunity of the Commonwealth of Virginia. And so, the claims that were asserted in that action, the preference actions that are served against VMI and the other institutions, are preserved, because we can --
04-885 +++$+++ 31638 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you're saying that much of the language of (b) is ineffective and superfluous? (b) certainly tries to limit it. It says "has waived sovereign immunity with respect to a claim against such governmental unit that is property of the estate and that arose out of the same transaction." You're just saying all of that is ineffective, then?
04-885 +++$+++ 31639 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm saying that, in this context, it isn't -- it isn't effective, Your Honor.
04-885 +++$+++ 31640 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In what context would it be effective?
04-885 +++$+++ 31641 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- 106(b) was intended for claims that didn't -- that did not arise under the bankruptcy code. 106(a) claims, which was the abrogation of sovereign immunity, are claims that arise under the code. 106(b) and 106(c), there is no sovereign immunity to waive. So, 106(b) and 106(c) were designed for the contract claims that Justice Scalia referred to earlier in the Petitioner's argument. And then we looked to the Federal -- this Court's jurisprudence with respect to what constitutes a waiver of sovereign immunity. And we would most naturally look at the Lapides case, in which -- in which a State came into this -- removed a case from State to Federal court, and the court said it didn't matter the type of claim that was being asserted, or that there was affirmative recovery that was being asserted, but, in fact, they constituted a waiver of sovereign immunity. And the State certainly can't say, here, that they didn't know the filing of a proof of claim would constitute a waiver of sovereign immunity, because back in 1947, in the Gardner versus New Jersey case, this Court acknowledged that filing a proof of claim constituted a waiver. And there are ways that a State could avoid this. They could have a process by which they had to go through -- whether it be the Attorney General's office, or whomever -- that in order to file a proof of claim, they had to first go somewhere to get authority to do that. And that most naturally happens with corporations, because, as this Court is aware in the Granfinanciera case, if you -- if you assert a proof of claim, you waive your jury-trial right. And that is a large issue for corporations --
04-885 +++$+++ 31642 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How do we interpret the statute to establish that Congress intended the States to waive their immunity with the filing of the claim? I don't see that anywhere in the statute.
04-885 +++$+++ 31643 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, can you --
04-885 +++$+++ 31644 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're arguing that by filing the claim, the State has waived all of its immunity, but I don't see where in the statute it imposes that kind of waiver upon States. I see where they abrogate the immunity, but that's different than saying that there's a waiver. Is your argument that just because they abrogated immunity, and it turned out they didn't -- may or may not have that authority, they necessarily imposed a waiver?
04-885 +++$+++ 31645 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think 106(b) applies with respect to the preference claims, Your Honor.
04-885 +++$+++ 31646 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Well, then where is the waiver of sovereign immunity in this statute?
04-885 +++$+++ 31647 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- in -- 106(b) and 106(c) specifies the conduct by which a sovereign must -- must engage in, in order to waive sovereign immunity in a noncore matter, in those matters not set forth in section 106- --
04-885 +++$+++ 31648 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I thought -- you're not relying on 106(b) and 106(c).
04-885 +++$+++ 31649 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
04-885 +++$+++ 31650 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, where is the waiver of immunity on which you're relying?
04-885 +++$+++ 31651 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The waiver of sovereign immunity is the jurisprudence of this Court, that eleventh amendment sovereign immunity is not absolute, that a sovereign can waive that sovereign immunity. And it did, in Gardner versus New Jersey. And, again, this Court looked at that in the Lapides case.
04-885 +++$+++ 31652 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you have no argument that Congress imposed a waiver.
04-885 +++$+++ 31653 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
04-885 +++$+++ 31654 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-885 +++$+++ 31655 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And, again, I still don't see how you distinguish (b) when you say "(b) doesn't apply here, it may apply in other cases." If it doesn't apply here, why would it apply in other cases?
04-885 +++$+++ 31656 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
04-885 +++$+++ 31657 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, if you are appealing to this broader principle, that you either waive all of sovereign immunity or you waive none of it at all, and you can't just restrict it to the particular claim, which is what (b) says, I don't know why, in any case, that wouldn't be true.
04-885 +++$+++ 31658 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, again, it's because we do not believe 106(b) governs here, because it deals with claims that are not abrogated under 106(a) of the bankruptcy code.
04-885 +++$+++ 31659 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Of course, if Congress had thought it had successfully abrogated, there would be no reason to provide for a waiver, I don't suppose.
04-885 +++$+++ 31660 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Justice Stevens. And I think this Court has recognized that bankruptcy is different in other contexts. And I think that it's very important to talk about bankruptcy differently. This Court has looked at, in -- just last term, in the Hood case, which was the debtor's discharge. And the Court said that that constituted in rem authority. This Court, in Perez versus Campbell, said that somebody cannot be denied a driver's license simply because they failed to play a discharged obligation. The Court, in the Irving Trust case, said that a State is required to satisfy the procedure of bankruptcy if they want to participate in the claims process. In Van Huffel and Straton, this Court said that a bankruptcy estate is permitted to sell property free and clear of the State's tax liens. In Whiting Pools, this Court said the IRS, who seized property on the eve of bankruptcy on behalf of a -- of a lien, had to return that in its in rem jurisdiction. And I believe it was Justice O'Connor who asked the question of Petitioner with respect to, How would this affect the automatic stay? And how I've thought of that is, sometimes the automatic stay, there may be an effect with respect to monetary relief, and there may be an effect as far as an injunctive relief. For example, if there was a judgment that a State had, prior to bankruptcy, against the estate, and then sought to enforce the judgment, executed on the debtor's bank accounts post-petition, debtor didn't know about it, because, in a -- in a debtor's reorganization, the first month of the debtor's bankruptcy, you can't -- you're not following everything that's happening the case. There is an execution on the bank account, the money is taken into the State's coffers. Does that mean that the State is bound by the automatic stay, or is the State not bound by the automatic stay? It was money that was transferred from one -- from the estate to the State.
04-885 +++$+++ 31661 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought (b) and (c) -- tell if I'm right about this -- but suppose an individual bankruptcy, and sometime prior to the bankruptcy the individual got into an automobile accident and ran into a State building and wrecked it. All right? Now, I take it that, in a State that hasn't waived sovereign immunity, that individual, were he not bankrupt, might not be able to bring a lawsuit for his damages caused by a claim that the wall was too high or something. Each is claiming the other is negligent. I guess the person wouldn't 10 be able to file. And the fact that he's bankrupt, he couldn't, 11 either.
04-885 +++$+++ 31662 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-885 +++$+++ 31663 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay. Now, in (b), I guess it's saying that if the 14 State happens to come in, after he's gone bankrupt, and brought 15 his negligent suit against him, he can respond.
04-885 +++$+++ 31664 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. That --
04-885 +++$+++ 31665 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, if, in fact, you were to lose 18 on (a), I guess the whole section would fall, because it 19 wouldn't make any sense anymore, and we'd just wipe out the 20 whole thing, (a), (b), and (c).
04-885 +++$+++ 31666 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. It was -- 22 it was a --
04-885 +++$+++ 31667 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. So, then the case 24 really turns on the extent to which the Government can -- sorry, 25 the extent to which Congress can waive sovereign immunity, as they seem to have waived it in (a), whether the Constitution permits them to do what they did in (a).
04-885 +++$+++ 31668 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, to abrogate sovereign immunity.
04-885 +++$+++ 31669 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And if you win on that, you win. And if you lose on that, the whole section 106 would probably fall.
04-885 +++$+++ 31670 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe 106 would fall, but, if 106 falls, doesn't mean that Respondent would lose, as far as the waiver argument, because --
04-885 +++$+++ 31671 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm not sure, because if you lose on the whole thing -- suppose you were to say Congress doesn't have the power to do anything there. I just wonder if (b) and (c) would survive, because they may have had something else in mind. But maybe that's too complicated to go into now.
04-885 +++$+++ 31672 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Breyer, I think that (b) and (c), as pointed out by another one of the Justices, may be a limitation on the general concept of common law waiver. So, to the extent that 106 would be -- this Court were to rule (b) that would -- unconstitutional, you would look to the general common law waiver of sovereign immunity, which would be the Gardner versus New Jersey case and the Lapides case. The --
04-885 +++$+++ 31673 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, how do you -- how do you have an informed waiver if the argument is over the authority to abrogate? In other words, the Federal Government is saying, under your theory, that we're abrogating your immunity. And the State's saying, "You don't have that authority." And how do you get an informed waiver, simply because the State participates in a bankruptcy proceeding, on the basis of the legal theory that they're asserting here today, that Congress doesn't have the authority to abrogate the immunity?
04-885 +++$+++ 31674 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We believe, obviously, Congress had the right to abrogate sovereign immunity --
04-885 +++$+++ 31675 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I understand that. But your theory, as I read in your brief, as an alternative argument, is that there was a --
04-885 +++$+++ 31676 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-885 +++$+++ 31677 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- waiver. The State waived its immunity by participating through -- in the --
04-885 +++$+++ 31678 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-885 +++$+++ 31679 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- bankruptcy proceeding. How is there an informed waiver if the argument is over the authority to abrogate?
04-885 +++$+++ 31680 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I believe, because this Court has recognized, in Gardner versus New Jersey, that if a State files a proof of claim, it constitutes a waiver, that the State had to have to been informed, it had to know that the actual conduct of filing a proof of claim would have a consequence of a waiver.
04-885 +++$+++ 31681 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but all the -- all the statute does is abrogate.
04-885 +++$+++ 31682 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All --
04-885 +++$+++ 31683 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In 106(a). It's --
04-885 +++$+++ 31684 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct --
04-885 +++$+++ 31685 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- an attempt to --
04-885 +++$+++ 31686 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Your Honor.
04-885 +++$+++ 31687 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- abrogate.
04-885 +++$+++ 31688 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-885 +++$+++ 31689 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if it turns out that Congress doesn't have that authority, I don't see how you can say the State has made an informed waiver, when their theory is, "Guess what? You don't have that authority to abrogate."
04-885 +++$+++ 31690 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, 106(a) certainly didn't exist back in Gardner versus New Jersey in 1947 either. And I think that the -- the fact that -- if sovereign immunity exists, sovereign immunity can be waived. I'm not sure --
04-885 +++$+++ 31691 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, no, no, he's -- so, I'm wrong. What I said is wrong. The answer has to be that -- we're only talking about (a) at the moment. And what Congress tried to do in (a) is abrogate sovereign immunity insofar as it is constitutional to do so. So, then, you say, if you lose on it, it's unconstitutional for it to do so here, but it could -- it is constitutional for it to do so insofar as there is this situation that the State brings a case against the estate, and you can do an offset, et cetera. But it would have nothing to do with (b) and (c). It would have to do with reading that into (a), I guess.
04-885 +++$+++ 31692 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that's correct --
04-885 +++$+++ 31693 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right.
04-885 +++$+++ 31694 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Justice Breyer.
04-885 +++$+++ 31695 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In -- I don't follow that, because I thought the theory of the cases were that you can waive something by conduct. And so, when you ask a court for relief against a party, then it's reasonable to say, "If you're coming in and asking the court to give you something, then it's only fair that your adversary should be able to" --
04-885 +++$+++ 31696 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ A light bulb exploded. A light bulb exploded.
04-885 +++$+++ 31697 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think we're -- I think it's safe.
04-885 +++$+++ 31698 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ A light bulb went out.
04-885 +++$+++ 31699 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's a trick they play on new Chief Justices all the time. [Laughter.]
04-885 +++$+++ 31700 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Happy Halloween. [Laughter.]
04-885 +++$+++ 31701 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Let me ask this --
04-885 +++$+++ 31702 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Take your time. We're interested --
04-885 +++$+++ 31703 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We're even -- yeah, we're even more in the dark now than before. [Laughter.]
04-885 +++$+++ 31704 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If you lose on the abrogation notion, and the Court holds that there is no authority in Congress to abrogate sovereign immunity, still the bankruptcy code codifies what is, across the board, the law. That is, if you come to a court and say, "Give me X against D," that D should be able to come back and say, "Either I want full relief because it's a compulsory type counterclaim. I have to bring it here. I can't bring it separately. Or at least a setoff." I mean, that was understood, that a party over whom the court would not have jurisdiction otherwise, is amendable to the court's jurisdiction to the extent of a counterclaim or a setoff. So, I don't see why (b) and (c) are not discrete from (a). (b) and (c) are implementing the idea of a setoff. You come to court for a claim, you are deemed to have waived any jurisdictional objection to the counterclaim or the setoff.
04-885 +++$+++ 31705 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand that argument, Justice Ginsburg, but I believe when Congress enacted 106(a), (b), and (c), that they enacted it -- (a), being those actions which were abrogated, (b) were those actions that remained. And those actions that remained, there were limitations to that waiver. Because this is not -- there was nothing to waive on sovereign immunity on 106(b) as to preference actions, for example. Contract claims are different. Contract claims would have -- are not abrogated under 106(a), so, therefore, the only way they can be waived is under 106(b).
04-885 +++$+++ 31706 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's the same question. But let's say that the court thinks there might be merit to the argument of waiver, that the State entity comes in asking to be treated as a creditor, and its preference is then before the bankruptcy court. How is that issue preserved in the question you raise? You say, maybe the Congress used Article 1 to abrogate the State's sovereign immunity.
04-885 +++$+++ 31707 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Did you ask how it's preserved? We raised the --
04-885 +++$+++ 31708 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It just seems to -- seem to me to be part of the question presented.
04-885 +++$+++ 31709 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think, to the extent that this Court can avoid addressing the Constitution about constitutionality of a statute -- and, in the situation of waiver, we believe that it can -- then we believe that's the appropriate jurisprudence.
04-885 +++$+++ 31710 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you asked -- you framed the question.
04-885 +++$+++ 31711 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. No.
04-885 +++$+++ 31712 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, no, you -- you're right. You're right. You're exactly right.
04-885 +++$+++ 31713 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, to what extent was this argument raised below, I guess is a --
04-885 +++$+++ 31714 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Chief Justice, it was raised, to the extent of VMI's sovereign immunity. And the reason that it was is, at the time that the motion to dismiss was filed, as recognized by the Petitioner in their brief, and as recognized by the court, at the bankruptcy court level, the Hood decision at the Sixth Circuit had been a decision. And so, there was no necessity for the court to engage into any other proceedings, other than to deal with the Hood decision.
04-885 +++$+++ 31715 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask a question on another subject, just talking for a minute about your in rem theory of the case? And I understand you would contend that assets have been subject to a fraudulent transfer or a preference should be deemed to be part of the estate. But is it not true that this case also involves a claim on the accounts receivable? And do you contend they also should be treated as part of the estate?
04-885 +++$+++ 31716 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, we did seek to dismiss the causative action with respect to the accounts receivable and the causative action that we --
04-885 +++$+++ 31717 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that because you concede, in effect, that they would not be part of the estate if we adopted an in rem theory that included the preferential transfers?
04-885 +++$+++ 31718 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They would not be part of the estate --
04-885 +++$+++ 31719 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-885 +++$+++ 31720 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in a situation of -- if this adopt -- Court adopted an in rem theory, that's correct.
04-885 +++$+++ 31721 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Which would not? I'm sorry.
04-885 +++$+++ 31722 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Any recoveries on behalf of State contract claims, account receivable as collections.
04-885 +++$+++ 31723 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And you have some of those.
04-885 +++$+++ 31724 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do, Your -- Justice Breyer.
04-885 +++$+++ 31725 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are you trying to get those in this case?
04-885 +++$+++ 31726 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, we are not.
04-885 +++$+++ 31727 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Oh, okay.
04-885 +++$+++ 31728 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We sought to dismiss them.
04-885 +++$+++ 31729 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you were, but you're not.
04-885 +++$+++ 31730 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Justice --
04-885 +++$+++ 31731 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, you're --
04-885 +++$+++ 31732 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Scalia.
04-885 +++$+++ 31733 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- trying to get rid of that, right?
04-885 +++$+++ 31734 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Justice Scalia.
04-885 +++$+++ 31735 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now, that doesn't fit into your in rem theory, but why wouldn't you have been able to recover that on a waiver theory? If you -- and I understand your waiver argument is, you can defend the judgment on the ground not -- you know, any ground to uphold the judgment is okay for the Respondent. But why wouldn't you have tried to defend that part of your case on the waiver theory?
04-885 +++$+++ 31736 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would have been the waiver with respect to just VMI's contract claims. And, I apologize, off the top of my head I don't recall what the value of just the VMI contract claims would have been. But that's what we believe the waiver would have been limited to. It would have not included the contract claims of Central Virginia Community College, Blue Ridge.
04-885 +++$+++ 31737 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would you explain to me again why it's okay that your waiver argument below was only directed to the claims against VMI?
04-885 +++$+++ 31738 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At the --
04-885 +++$+++ 31739 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not -- I didn't understand your answer to that. You made a much narrower argument there than you're making here.
04-885 +++$+++ 31740 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
04-885 +++$+++ 31741 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You didn't -- you didn't assert that all the sovereign immunity for the entire State and all of its institutions had been waived simply because of the claim by VMI. You didn't make that argument.
04-885 +++$+++ 31742 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At the time of that decision, Justice --
04-885 +++$+++ 31743 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-885 +++$+++ 31744 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Scalia, the Sixth Circuit Hood decision had already been decided, and, just as it was acknowledged in the --
04-885 +++$+++ 31745 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- which said what?
04-885 +++$+++ 31746 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Which said that sovereign immunity is waived, or abrogated, for preference actions in -- it was actually across the board -- an abrogation of State sovereign immunity. And, at that point, there was notice --
04-885 +++$+++ 31747 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, then why didn't you make the argument? I mean, if Hood said, when you make a partial -- or one institution -- if I understand what you're saying, Hood said that a waiver by one institution waives for the whole State. Is that -- is that what Hood said?
04-885 +++$+++ 31748 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. Hood said --
04-885 +++$+++ 31749 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
04-885 +++$+++ 31750 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- that Congress could abrogate.
04-885 +++$+++ 31751 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. Congress could --
04-885 +++$+++ 31752 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- through the Bankruptcy Clause. The -- what -- and then when the case came to this Court, we didn't --
04-885 +++$+++ 31753 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-885 +++$+++ 31754 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- address that issue.
04-885 +++$+++ 31755 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if you're making a separate waiver argument, apart from the abrogation argument, I don't see why you would not make that waiver argument as broadly as possible. It's a separate argument from the abrogation argument.
04-885 +++$+++ 31756 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We --
04-885 +++$+++ 31757 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you're making it as a separate argument here. But here, you're making it as to all claims against all State institutions; whereas, below you made it only as to the claims against VMI. I don't understand that.
04-885 +++$+++ 31758 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At the time, 106(a), in the Sixth Circuit, it was determined that that was constitutional. So, at the time, the only thing left for the States to waive was the contract actions. And the contract actions of VMI were the only things that could be waived as part of the --
04-885 +++$+++ 31759 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I see.
04-885 +++$+++ 31760 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- underlying --
04-885 +++$+++ 31761 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I see.
04-885 +++$+++ 31762 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, the -- so, the long and short of it is, for good and sufficient reasons you did not make the same waiver below that you're making here today.
04-885 +++$+++ 31763 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Chief --
04-885 +++$+++ 31764 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-885 +++$+++ 31765 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Justice.
04-885 +++$+++ 31766 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the proof of claim in VMI was $43,000, and the preference was $25,000.
04-885 +++$+++ 31767 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-885 +++$+++ 31768 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now, on your in rem argument, how do you distinguish Nordic Village's case?
04-885 +++$+++ 31769 +++$+++ TRUE +++$+++ MS. LEWIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the Nordic Village case, the trustee in that case focused on the money damages. They didn't focus on the portion of the preference statute that says you can get the transfer back, you can get the property back. And as this Court recognized in Bowen versus Massachusetts, just because it is monetary relief doesn't mean that it's money damages. And that's how we distinguished the Nordic Village case, Your Honor. The -- this Court, I believe, would be extending the Article -- its jurisprudence if it permitted the bankruptcy estate not to be able to sue the States. This Court has recognized that a private citizen, Indian tribes, and foreign sovereigns cannot be sued. But this Court's never recognized a Federal entity cannot pursue a State. And this Court -- this is a situation where there is no alternative remedy. We aren't in a situation where we have the ADA, the ADEA, where the EEOC can bring an action on behalf of the Government and on behalf of the individuals to enforce a Federal law. We have no other enforcement in bankruptcy, other than the collective bankruptcy process, the bankruptcy code. And the bankruptcy code assigns to the debtor in possession, or to the trustee, the ability to collect on behalf of the estate. Bankruptcy is unique in its very in rem application and its very narrow and specialized enforcement of the bankruptcy system. The framers recognized the critical nature of binding the States in a uniform scheme. The decision below ought to be affirmed on the basis of in rem, on the basis of the Constitution, and on the basis that Virginia, the Commonwealth of Virginia, waived its sovereign immunity. Thank you.
04-885 +++$+++ 31770 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Counsel. Apologize for the fireworks. [Laughter.]
04-885 +++$+++ 31771 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Thro, you have three and a half minutes left.
04-885 +++$+++ 31773 +++$+++ FALSE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. The question presented is whether or not Congress may use the Article 1 Bankruptcy Clause to abrogate sovereign immunity. In Alden versus Maine, this Court held that there was a presumption that the States had retained their immunity unless it could be shown by conclusive evidence that the States surrendered their immunity in the plan of convention. If Congress can use the Article 1 bankruptcy power to abrogate sovereign immunity, then one would expect there to be discussions to that effect at the constitutional convention, in the federalist and antifederalist writings, and in the ratifying conventions. Yet, as the Sixth Circuit conceded in its version of Hood, there is no compelling evidence. There is, at best, silence. Silence cannot equal the compelling evidence. Therefore, the Article 1 bankruptcy power cannot be used to abrogate sovereign immunity.
04-885 +++$+++ 31774 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's the question you've presented, Mr. Thro, but it was the same question that was presented to us in Hood. And in Hood, we decided that we were not going to answer the question presented, we were going to decide the case on a lesser ground. So, the Court, certainly if our venture in Hood was proper, here, too, we could decide the case on some other ground than the one you presented in your question.
04-885 +++$+++ 31775 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, you could, Your Honor. But you should not address any of the alternative arguments raised by Mr. Katz.
04-885 +++$+++ 31776 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We couldn't decide it in your favor, on some alternative ground, though, could we? [Laughter.]
04-885 +++$+++ 31777 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-885 +++$+++ 31778 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I mean, that distinguishes it --
04-885 +++$+++ 31779 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, absolutely, Your Honor --
04-885 +++$+++ 31780 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The difference between this and Hood.
04-885 +++$+++ 31781 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Your Honor, but I believe that the proper exercise of judicial restraint is to decide the question presented, and only the question presented, and do the other grounds for perhaps another day. All of Katz's -- all of Katz's novel arguments raise complex constitutional issues and, quite frankly, ask for radical alteration of this Court's jurisprudence.
04-885 +++$+++ 31782 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask if you think, within the text of the question presented, we could decide whether the sovereign immunity was abrogated by the convention itself, not by Congress? There is that argument out there, you know.
04-885 +++$+++ 31783 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Within -- I think, in effect, if you were to decide -- if you decided that the convention itself had intended --
04-885 +++$+++ 31784 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Abrogated.
04-885 +++$+++ 31785 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- for the States not to have sovereign immunity in bankruptcy, then you would conclude that the Article 1 Bankruptcy Clause includes the abrogation power. So, I think it's, sort of, two sides of the same question. Returning to Justice Ginsburg's question, a second reason for not addressing Katz's arguments were, they were not passed on below. As this Court noted in Granfinanciera, where --
04-885 +++$+++ 31786 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, then that would be a ground to allow them to present it below. They had a total winner --
04-885 +++$+++ 31787 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes.
04-885 +++$+++ 31788 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- on that hands below.
04-885 +++$+++ 31789 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, absolutely. You -- it -- you can -- you should decide the question presented. And if you decide the question presented in our favor -- that is, that Congress has -- does not have the power to abrogate sovereign immunity -- you would presumably remand to the Sixth Circuit for further proceedings, consistent with your opinion. At that time, Katz could attempt to present these other defenses. We would, of course, argue that some of those defenses had not been properly preserved. But it has not been briefed below.
04-885 +++$+++ 31790 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel.
04-885 +++$+++ 31791 +++$+++ TRUE +++$+++ MR. THRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-885 +++$+++ 31792 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The case is submitted.
04-8990 +++$+++ 31797 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument next in House v. Bell. Mr. Kissinger.
04-8990 +++$+++ 31799 +++$+++ FALSE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, may it please the Court: The jurors which --
04-8990 +++$+++ 31800 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Why don't you raise the level of the podium a little so we can hear you?
04-8990 +++$+++ 31801 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Is that better, Your Honor?
04-8990 +++$+++ 31802 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Not much.
04-8990 +++$+++ 31803 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ One more sound check. Does that --
04-8990 +++$+++ 31804 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you.
04-8990 +++$+++ 31805 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. The jurors who convicted Mr. House of first degree murder heard that semen stains on the victim's clothing matched Mr. House. They didn't hear the DNA evidence which showed that not to be the case. The jurors heard --
04-8990 +++$+++ 31806 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Was that because there was no such analysis at the time?
04-8990 +++$+++ 31807 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Justice O'Connor.
04-8990 +++$+++ 31808 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ How many years ago was this trial?
04-8990 +++$+++ 31809 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The trial, Your Honor, was approximately 20 years ago. The jurors who convicted Mr. House heard that bloodstains on Mr. House's blue jeans matched the blood belonging to the victim. They didn't hear the assistant chief medical examiner for the State of Tennessee testify that the source of those bloodstains was a sample taken during Ms. Muncey's autopsy, nor did they hear --
04-8990 +++$+++ 31810 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The district court heard that, though, didn't it?
04-8990 +++$+++ 31811 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Justice Scalia.
04-8990 +++$+++ 31812 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And didn't believe it. Right? And did not believe it. Found as a matter of fact that the blood was -- was not a result of the spill.
04-8990 +++$+++ 31813 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, the court made a conclusion that the blood which had spilt from the tube had spilt after -- after the blood had been tested. It did not, however, make a factual finding. It made a conclusion of law regarding that, Your Honor.
04-8990 +++$+++ 31814 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That -- is that a conclusion of law?
04-8990 +++$+++ 31815 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is, Your Honor. If the Court were to look at the district court order, the district court order was divided into two distinct parts. The first part --
04-8990 +++$+++ 31816 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't care what part it put it in. The district court did not believe that the blood on the trousers was a consequence of the spill and that -- and that, therefore, blood was identified on the inside of his trousers that was the blood of the victim. That's what the district court believed, having heard the testimony.
04-8990 +++$+++ 31817 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, what the district -- what the district court concluded as a matter of law was that it -- that notwithstanding Dr. Blake's testimony regarding the source of the blood found on Mr. House's jeans, that that did not eliminate the -- eliminate the testimony of Agent Scott who said that he saw blood on the jeans when he first -- excuse me. Let me rephrase that because it's actually a critical matter. He saw what he thought appeared to be bloodstains on the jeans when he first picked them up. What the district court did in that instance was exactly the error that Mr. House has brought to the attention of this Court, which is in the face of evidence of innocence, the district court, simply because it found some contrary evidence in the record, found that Mr. House had failed to make his showing.
04-8990 +++$+++ 31818 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ On that point -- on that one point, do you contend that the district court was clearly erroneous?
04-8990 +++$+++ 31819 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor --
04-8990 +++$+++ 31820 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ On that one point of the blood, of whether, indeed, his blood was on -- or the victim's blood was on the inside of his trousers? On that one point, do you claim that the district court was clearly erroneous?
04-8990 +++$+++ 31821 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, we actually make two claims regarding that. First, that that was a conclusion of law entitled to -- entitled to de novo review. Second, that --
04-8990 +++$+++ 31822 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What's your -- what's your second point? Because I --
04-8990 +++$+++ 31823 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Second, Justice Scalia, if indeed it was a finding of fact, yes, that finding of fact was clearly erroneous.
04-8990 +++$+++ 31824 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ On the basis solely of the testimony of -- of this expert.
04-8990 +++$+++ 31825 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, on the basis of the entirety of the record, which is what this Court instructed the district court to examine when it conducts a Schlup inquiry.
04-8990 +++$+++ 31826 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Including the contrary testimony that said if it had been the result of a spill, it would not have been splattered all over, as it was here. Some of it wouldn't have been on the inside of the trousers. Some of it wouldn't have been mixed with mud. Despite all of that, you -- you can say that the district court's finding, which I consider a finding of fact, was clearly erroneous.
04-8990 +++$+++ 31827 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, including not only that testimony, but the testimony of the same expert who made the statements which the Court just cited, who said that she was unable -- that she was excluding merely the direct spillage, the pouring of blood onto the jeans, and conceded in her testimony that the transfer stains which she observed, the type of stains which she observed could, in fact, have been -- that she had no opinion as to the cause of those, only that it was the result of one object wiping against another object. Also, in light of the testimony in regarding --
04-8990 +++$+++ 31828 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Excuse me. I -- I agree that all of this stuff would -- would have made a better case for the defendant here. But once the case has been tried and both sides have put on all the evidence they have, we have a -- a much different test, and -- and that is whether any reasonable juror could have found him guilty. That's a very heavy burden: whether any reasonable jury could have found guilt. I agree it would have been a much closer case, but -- but the burden you -- you have before us here is to establish that no reasonable jury could possibly have found him guilty.
04-8990 +++$+++ 31829 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia --
04-8990 +++$+++ 31830 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And on -- just on the blood thing alone, I -- I find that a hard burden to bear.
04-8990 +++$+++ 31831 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, there -- there are two things which come into the -- into the Court's analysis. First is the Court is correct. The burden is quite high, and it's -- it's high for a reason. It's justifiably high. We don't shrink from that burden, Your Honor. What we say is that along with that burden, the Court also requires that the entirety of the evidence be reviewed. If the entirety of the evidence is reviewed and the effect of the entirety of the evidence on a properly instructed, reasonable juror -- that's the nature of the -- the determination -- what effect will that have? When we look at the facts in this case, when we look at the blood evidence in this case, yes, we don't deny that there is evidence which could support conviction. However, that is not the test in Schlup. Schlup specifically rejected that inquiry.
04-8990 +++$+++ 31832 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What did it rest on? What -- what is the district court's conclusion? The court concludes that the spillage occurred after the FBI crime lab received and tested the evidence. What does that rest on?
04-8990 +++$+++ 31833 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, quite frankly, we can't determine that -- that statement rests on anything. The undisputed evidence in the record consists of a photograph of the blood samples at the time they were received by the defense expert. The box was opened. A photograph was taken. The photograph shows clearly that one entire tube of blood is missing and the second tube of blood has leaked within the packaging. But the record also contains the testimony of the TBI agent who transported the blood from the FBI to the defense expert who said he observed no blood that leaked other than the -- other than what was inside the container. It also contains the testimony of the FBI agent who tested the blood at the FBI who said two things. One, I used no -- no more than one quarter of a tube of blood and that no blood spilt while the tube was in the possession of the FBI.
04-8990 +++$+++ 31834 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And it also contained the testimony of an expert who said that if the tube spilled in that way, it would not have created the kind of spatterings that -- that were incriminating in this case. Even if there was some spill, it would not have produced the kind of spattering. So, you know, I call that a draw.
04-8990 +++$+++ 31835 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, two -- two things to -- two things to point out there. First is that that eliminates only one possible hypothesis and that is the hypothesis that blood was directly spilt onto -- onto the -- onto the jeans. I think the example that the expert gave was these are not stains, for example, the pouring of a -- like coffee -- pouring coffee onto the lap of your jeans or something like that. These are simply transfers: one bloody object wiped against another. So while she gave a hypothesis of guilt -- and again, Your Honor, it comes to the could and would distinction. Yes, it -- that could be considered evidence of guilt, what would a -- but, however, that's not the inquiry. The inquiry is what would a reasonable juror who heard that on one side, that it didn't spill directly, but on the other side, heard the evidence that we began -- that I began to discuss with Justice Breyer, which is the evidence of the TBI agent, the photographic evidence, the evidence of the FBI agent, the evidence that the Styrofoam box was opened during transit to the FBI and that objects were removed from it during transit.
04-8990 +++$+++ 31836 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I have two questions on the blood, and there's a lot you want to cover here, so I won't take too much of your time. One, is it significant for your case that this was a very small sample? Two, was the evidence about the enzymatic degradation -- was that available? Was the science about that fully available to the defense at the time of trial? I had those two questions.
04-8990 +++$+++ 31837 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, in terms of the -- the size of -- of the bloodstains, it was significant to the extent that it bears upon the probative value of the testimony of Charles Scott when he says -- when he said he saw what he thought might be stains. As a simple matter of fact, this -- the jeans were stained with a number of substances, not just blood, and a number of witnesses, including the trial prosecutor himself, described the bloodstains as actually so small that they were difficult to detect by the human eye. The second part of your question, Justice Kennedy, yes. That evidence was available. And our position is that it -- that goes actually to the substance of our constitutional ineffective assistance of counsel claim. Trial counsel had in his possession -- or his expert certainly had in his possession the photograph that showed an entire tube of blood missing. Therefore, he had evidence that there was something wrong with the blood. Trial counsel was actually concerned about this blood. He filed a pretrial motion to suppress this blood evidence. Here's trial counsel with evidence that blood is missing. He knows it's a critical issue in the case and he failed to go out and hire someone like the assistant chief medical examiner for the State of Tennessee who came into Federal court and testified as to the -- that the source of this blood was, in fact, that empty tube.
04-8990 +++$+++ 31838 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That -- that would be an important point if, in fact, it conclusively established that the blood was not the blood of the victim, but I don't think it does conclusively establish that, and if it doesn't, the -- the less than perfect performance of counsel is -- is no basis for setting aside the conviction.
04-8990 +++$+++ 31839 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, two matters on that. Again, the proof of innocence does not have to be absolute. This Court stated in Schlup that the fact that there is still some evidence of guilt or that there still exists even substantial evidence of guilt does not prevent a defendant from passing through the Schlup gateway. The second matter and one which I think is important is that as a matter of Tennessee law, a circumstantial evidence case requires not only that the prosecution prove its case beyond a reasonable doubt, but that it eliminate all reasonable hypotheses of innocence. So even if a jury could conclude that the blood came during -- that the blood got on the jeans during the course of the crime, it would also have to be able -- it would also have to be probable that the same jury would also conclude that it was an impossibility for Mr. Blake -- Dr. Blake's testimony to be correct. So, in fact, it's Dr. Blake's testimony which has to be impossible to -- to accept in order for a jury to find --
04-8990 +++$+++ 31840 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ At one point --
04-8990 +++$+++ 31841 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a reasonable juror to find --
04-8990 +++$+++ 31842 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Justice Scalia said blood of the victim. You don't contest that this was the blood of the victim. The question is at what point did it get transferred to the jeans.
04-8990 +++$+++ 31843 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Justice Ginsburg.
04-8990 +++$+++ 31844 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There's no question about it being someone else's blood.
04-8990 +++$+++ 31845 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Justice Ginsburg. The question has been, from the beginning of this case, when the blood came to get on Mr. House's jeans.
04-8990 +++$+++ 31846 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right. And -- and the point of controversy is whether a spill of -- of the -- of the blood in -- in the course of transport could have produced this -- this kind of -- of spattering, including a spattering on the inside of -- of the trousers near the button. It -- it seems to me unlikely, and -- and I am unable to say that no reasonable jury -- juror could not think it unlikely.
04-8990 +++$+++ 31847 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, I -- I would disagree with -- with the Court's analysis there. I -- I think what -- what the issue here is more whether, given the testimony of Dr. Blake, given the corroborating evidence that supports Dr. Blake's testimony, would a reasonable juror have doubts or would any reasonable juror have a -- retain a reasonable -- excuse me --
04-8990 +++$+++ 31848 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's much more than that.
04-8990 +++$+++ 31849 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Let me rephrase that, Justice Scalia. The question is, given the Tennessee jury instruction --
04-8990 +++$+++ 31850 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Any reasonable juror would have had to have a reasonable doubt.
04-8990 +++$+++ 31851 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, thank you, Justice Breyer.
04-8990 +++$+++ 31852 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. And you're saying yes, any reasonable juror would have had to have a reasonable doubt irrespective of what the trial judge found.
04-8990 +++$+++ 31853 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Justice Breyer.
04-8990 +++$+++ 31854 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So the -- so the -- we would have to be finding in this case, if we ruled in your favor, that we think the trial judge is unreasonable.
04-8990 +++$+++ 31855 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, that's actually not correct either. Schlup specifically says that the function of the district judge in a Schlup hearing is not to make an independent judgment on the evidence in front of him, but to make a probabilistic determination of the effect of the evidence on a reasonable juror.
04-8990 +++$+++ 31856 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, but surely he's supposed to make factual determinations. We -- I -- I don't want to make factual determinations on all these questions. That's -- that's not our system of law. Those factual determinations are made by the trial judge. And here, I agree with you that we don't have to accept his judgment as to what a reasonable juror would have done, but I do think that we have to accept his factual findings as accurate unless they're clearly erroneous. And here, he made the factual finding that that blood was there before the transport. And I -- I think I'm bound by that unless you can show that it is clearly erroneous, which I don't think you can.
04-8990 +++$+++ 31857 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, first, we -- we believe we have -- have shown that it's clearly erroneous. Second, even viewing the blood evidence separately, even saying, well, Mr. House has put up some evidence of -- some evidence of innocence regarding this blood evidence, but not enough to really sway me regarding that, that evidence itself has to be viewed in light of the entire record. And in light of the entire record, that blood evidence, standing alone in its even somewhat compromised state, no reasonable juror would be able to come to the conclusion that Mr. House was guilty because the remaining evidence of his innocence is also very substantial.
04-8990 +++$+++ 31858 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Are you going to mention any of the other, or are we going to just deal with the blood today?
04-8990 +++$+++ 31859 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice O'Connor, we -- we would like to move on to -- to some of the other evidence because it -- it is substantial. And we've set -- we've set out a lot of that evidence beginning at page 6 of our reply brief.
04-8990 +++$+++ 31860 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Will you also cover, because your time is short, if you get through the gateway on your actual innocence contention, what are your constitutional claims that lie behind it? Because I don't think much was said about that in the briefing. What is it that you would -- you would say if you got through the gate?
04-8990 +++$+++ 31861 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, as -- as I mentioned earlier, we believe that we have numerous instances of ineffective assistance of counsel. First, counsel's failure to -- upon knowing of the importance of the blood evidence, which he clearly did because he raised -- raised the issue himself, upon knowing of the photograph showing the missing blood, he failed to go forward and basically do what we did in Federal court, which was hire an expert to look at the results of the FBI testing and to determine whether there was a viable defense -- a viable defense strategy available there, which he did not. Also, if we look at the record in this case, we have a situation where trial counsel also pointed toward Hubert Muncey, Jr. as the actual perpetrator of this crime. He actually called the sister of the victim to say that his sister was afraid of Mr. Muncey and that she had plans to leave him. When we look at what was available to trial counsel there, we see five witnesses, many of whom were friends of Mr. Muncey, who presented evidence that showed that on the night of Ms. Muncey's murder, Mr. Muncey and Ms. Muncey had a fight at the C&C Recreation Center, that Ms. Muncey went home, that Mr. Muncey followed her there, that he confessed that when he returned home, he was angry and drunk, that they began to argue again, that he struck her in the head, that she fell, that he checked her lifeless body and found she was dead, and that he hid her body in the bushes.
04-8990 +++$+++ 31862 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- but the -- the injuries on the body are simply not consonant with -- with that manner of her -- of her death. A police officer testified not only to a head injury, but to blood coming out of the nose and ears, scratches and bruises on her throat and legs, scratches on her face. That simply is not consonant with one whack on the head.
04-8990 +++$+++ 31863 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, there -- there are two issues there. In fact, the -- the pathologist's testimony and -- and the law enforcement officer's testimony is consistent to the extent that the injuries which Mr. Muncey described inflicting were, in fact, inflicted upon the victim. There were those injuries. The point -- the fact that there were additional injuries to the victims -- to the victim assumes that somehow Mr. Muncey's independent, short confession, because, remember, when he started to confess -- after he makes this confession, he's rushed out of the home and told that they don't want to hear anything. This isn't a situation like a law enforcement -- a confession made to law enforcement where once obtaining evidence of guilt, law enforcement pursues and tries to get as many of the details out of it. I don't believe that it would be -- it's significant or it would be significant to any reasonable juror that Mr. Muncey did not describe every single injury that he inflicted on Ms. Muncey that night.
04-8990 +++$+++ 31864 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You've mentioned -- in response to Justice Ginsburg, you didn't mention -- and perhaps it was inadvertent. If not, I want to know why not. I thought if you get through the gate, what you're going to say is the State should have given us evidence that they had that showed that Mr. Muncey had sexual relations with his wife the morning of the killing, and therefore, the semen that they found didn't necessarily belong to your client, but rather belonged to him. As it turned out, it didn't.
04-8990 +++$+++ 31865 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Justice Breyer.
04-8990 +++$+++ 31866 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you're going to make that Brady claim.
04-8990 +++$+++ 31867 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We -- we are going to also make the Brady claim. In addition, Your Honor, if indeed that evidence was available to trial counsel, who did talk to Mr. Muncey, who was able to interview Mr. Muncey, and failed to ask Mr. Muncey whether he had had sexual relationships with his wife, even though trial counsel attempted ineffectively at trial to -- to show that -- that that semen belonged to Mr. Muncey. So it's one of those situations, Justice Breyer, where there is either Brady for the State's failure to turn it over, or if it was available, it's another instance of ineffective assistance of counsel.
04-8990 +++$+++ 31868 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Counsel, could I step -- step back a little bit to get -- to get back to the standard of review? Because I think it's an unusual one. You started out by talking about what the first jury knew and didn't know, but we are in no sense reviewing that jury determination. Correct?
04-8990 +++$+++ 31869 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Justice Roberts.
04-8990 +++$+++ 31870 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We are supposed to look at all of the evidence, the new evidence and the old evidence, and determine simply whether or not it would be unreasonable for any juror to vote to convict on the basis of all of that evidence. Is that right?
04-8990 +++$+++ 31871 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, what Schlup says is that we are to step back and see whether it is more likely than not that no -- that any reasonable juror would vote to convict.
04-8990 +++$+++ 31872 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Any reasonable juror would have to have a reasonable doubt.
04-8990 +++$+++ 31873 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Would have -- would have -- that's correct, Justice Breyer.
04-8990 +++$+++ 31874 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, in other words, no reasonable juror -- no -- no juror could reasonably vote to convict. In other words, if we look at this evidence and think that -- and again, we're not reviewing the prior jury's evidence. If we look at this and say, maybe a jury would come out 10 to 2 in favor of acquittal, if we think that would be reasonable, then you lose. Right?
04-8990 +++$+++ 31875 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Chief Justice Roberts, I --
04-8990 +++$+++ 31876 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Under my hypothetical there are two reasonable jurors who vote to convict.
04-8990 +++$+++ 31877 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Chief Justice Roberts, the danger in that hypothetical is that we are approaching an area where the definition of the reasonable juror becomes something subjective. The definition of a reasonable juror is not a subjective inquiry. In fact, it's a -- it's an objective inquiry. So to that extent, I would have to disagree with -- with your analysis or your -- or your hypothetical, which is that maybe there might be two jurors out there who would listen to this evidence and vote to convict Mr. House. I don't think that's a correct statement --
04-8990 +++$+++ 31878 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, Schlup shouldn't -- shouldn't have expressed it that way then. Schlup must have -- must have made a big mistake when it said no reasonable juror could. It should have expressed it differently and said a reasonable juror would not -- would not have found, but they didn't say that. It said no reasonable juror.
04-8990 +++$+++ 31879 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I believe the Court in -- I believe the Court in Schlup took the word reasonable to encompass the point which I have just made.
04-8990 +++$+++ 31880 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, didn't -- you -- you have accepted Justice Scalia's formulation, but my understanding is that Schlup did not say no reasonable juror could. Schlup said no reasonable juror would have. Isn't that correct?
04-8990 +++$+++ 31881 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that's correct, Justice Souter.
04-8990 +++$+++ 31882 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I mean, it's would, not could.
04-8990 +++$+++ 31883 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it is would.
04-8990 +++$+++ 31884 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Could would imply a sufficiency of evidence possibility of analyzing it, but the would language excludes a sufficiency of evidence. The -- the would formulation says, in effect, what would the reasonable juror actually have done. Is that your understanding? I mean, is that your point?
04-8990 +++$+++ 31885 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is, Justice Souter.
04-8990 +++$+++ 31886 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Or more precisely, what would all reasonable jurors have done.
04-8990 +++$+++ 31887 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What would any reasonable juror, Justice Scalia.
04-8990 +++$+++ 31888 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All reasonable jurors.
04-8990 +++$+++ 31889 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe the language is any. Well, if there are no more questions, I'd like to reserve the remainder of my time.
04-8990 +++$+++ 31890 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Kissinger. Ms. Smith, we'll hear now from you.
04-8990 +++$+++ 31892 +++$+++ FALSE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The evidence presented in the district court fails to raise sufficient doubt about Mr. House's guilt to justify review of his procedurally defaulted claims because reasonable jurors would not ignore the fact that Mr. House's jeans were stained with the blood of Carolyn Muncey. That is a fact that has not been undermined by any of the evidence presented in the Federal habeas proceeding. The enzymatic degradation theory of Dr. Blake was so thoroughly discredited in the Federal evidentiary hearing that it is highly unlikely that any reasonable juror, viewing all the evidence, would be convinced by it, let alone that everyone would vote to acquit in light of it. In fact, the petitioner's evidence of innocence was disputed in nearly every respect and sorely --
04-8990 +++$+++ 31893 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How was -- how was that? I thought you'd go on to say how that -- how was it? I -- I read that Dr. Blake said this. He said, look, I -- there -- there are tiny little specks of blood on the jeans and we test them. They were tested. And they show that a certain enzyme deteriorated to degree X, and that's true of the test tube blood as well. Both deteriorated to degree X. But if you take fresh blood and splatter it, there will be no deterioration. So conclusion: the blood on the jeans came from the test tube. Now, you say that was discredited, but I didn't read anywhere anything that discredited it. What was the discrediting of that?
04-8990 +++$+++ 31894 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was specifically discredited by the -- by the testimony of Agent Bigbee.
04-8990 +++$+++ 31895 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Who said?
04-8990 +++$+++ 31896 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Dr. Blake's specific opinion was that his interpretation of the enzyme marker study, specifically the GLO1 enzyme on the jeans and on the vial --
04-8990 +++$+++ 31897 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
04-8990 +++$+++ 31898 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- showed inc -- inc --
04-8990 +++$+++ 31899 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-8990 +++$+++ 31900 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- which he took to mean incomplete penetrance.
04-8990 +++$+++ 31901 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-8990 +++$+++ 31902 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Agent Bigbee specifically disputed not only the literal interpretation of that, in that it doesn't mean incomplete penetrance. In fact, Agent Bigbee did not know what that even meant in the area of serology, but he -- he disagreed with the meaning that Dr. Blake ascribed to that -- to that definition -- to that notation.
04-8990 +++$+++ 31903 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which meant what?
04-8990 +++$+++ 31904 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Which Dr. Blake concluded that --
04-8990 +++$+++ 31905 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was incomplete, and what did the FBI man say it was?
04-8990 +++$+++ 31906 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Agent Bigbee testified -- or Dr. Blake testified that the inc meant that the enzyme was not present, that it had dropped out.
04-8990 +++$+++ 31907 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He -- he says it meant incomplete. And what do you -- what did -- what did Dr. Bigbee say it --
04-8990 +++$+++ 31908 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Dr. Blake said it was not present. It had dropped out. Agent --
04-8990 +++$+++ 31909 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now -- I -- Dr. Blake, you just said, said that the word inc meant incomplete.
04-8990 +++$+++ 31910 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-8990 +++$+++ 31911 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you say Dr. Bigbee discredited that by saying, no, it didn't mean that.
04-8990 +++$+++ 31912 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's Agent Bigbee. I'm getting confused.
04-8990 +++$+++ 31913 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It meant something else. What is the something else?
04-8990 +++$+++ 31914 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Agent Bigbee testified that inc means --
04-8990 +++$+++ 31915 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Means.
04-8990 +++$+++ 31916 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- inconclusive --
04-8990 +++$+++ 31917 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Fine. Now, all right --
04-8990 +++$+++ 31918 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- which means that the enzyme is present --
04-8990 +++$+++ 31919 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Fine, okay.
04-8990 +++$+++ 31920 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but that he could not subtype it.
04-8990 +++$+++ 31921 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They don't know how much. Now, I have on page 119, which they cite, of the transcript Mr. Pruden is talking to Mr. -- Dr. Blake. Would your opinion change, doctor, if the, quote, inc notation meant inconclusive rather than incomplete penetration? Answer: same difference. Question: so your opinion would not change? Answer: that is correct.
04-8990 +++$+++ 31922 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the -- the dispute goes beyond the literal interpretation of the inc. It goes to the meaning ascribed to it. And Agent Bigbee disagreed that Dr. Blake -- with Dr. Blake's conclusion that the inc indicated that the enzyme had dropped out of the sample. He said it was present. It could not be typed. Agent Bigbee also disagreed with Dr. Blake's overarching theory that there was equal deterioration in the vials -- in the blood in the vials and the blood on the pants. In fact, Agent Bigbee went through step by step --
04-8990 +++$+++ 31923 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it would have been the easiest thing in the world for you if, in fact, you think that this is not true that enzyme GL706BX, contrary to what Dr. Blake said, had not deteriorated in the blood spot, do a test. Find out if it's deteriorated or not. Can't -- can't that be done? I mean, Dr. Blake in this part is reading his own report. His own report says the enzyme deteriorated in the spots on the jeans, and I see nothing here that says to the contrary. But if that weren't true, the blood is right there, and if it weren't true that it had deteriorated, I would have expected testimony, at the least, saying no, Dr. Blake, you are wrong.
04-8990 +++$+++ 31924 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that --
04-8990 +++$+++ 31925 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The blood did not deteriorate. The enzyme did not deteriorate. But there is no such testimony. Instead, you seem to be relying on the difference between the word incomplete and inconclusive, a difference that Dr. Blake says is inconclusive or incomplete.
04-8990 +++$+++ 31926 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Dr. Blake was not reading his own report. Dr. Blake performed no independent analysis. Dr. Blake was reading Agent Bigbee's report. Agent Bigbee was explaining to the district court the meaning of the notations that he included in his report. But the -- but the dispute goes beyond just experts.
04-8990 +++$+++ 31927 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So Bigbee -- Bigbee was explaining what he meant when he wrote inc.
04-8990 +++$+++ 31928 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
04-8990 +++$+++ 31929 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And it was different than what Dr. Blake said it meant.
04-8990 +++$+++ 31930 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. The report at issue was a report prepared pretrial by Agent Bigbee when he did the -- the initial enzyme analysis.
04-8990 +++$+++ 31931 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The district court heard all of this, didn't it, all this evidence, and -- and didn't the district court make a factual finding?
04-8990 +++$+++ 31932 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. Not only did the district court note --
04-8990 +++$+++ 31933 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I mean, we -- we can call in these witnesses ourselves, I suppose, and hear them all again, but we usually accept the factual findings of the trier of fact.
04-8990 +++$+++ 31934 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. And the district court specifically found as a fact that the blood spill --
04-8990 +++$+++ 31935 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But does that finding rest on the conclusion that Dr. Blake was not credible and Agent Bigbee was credible?
04-8990 +++$+++ 31936 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that that conclusion implicitly includes a finding that Agent Bigbee was -- was credible and Dr. Blake was not credible.
04-8990 +++$+++ 31937 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that Dr. Blake was not credible.
04-8990 +++$+++ 31938 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There were additional --
04-8990 +++$+++ 31939 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And who -- what was Dr. Blake's background?
04-8990 +++$+++ 31940 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Dr. Blake's background is -- is that he was a forensic pathologist.
04-8990 +++$+++ 31941 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Employed often by the State?
04-8990 +++$+++ 31942 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He was often employed by the State. He had a history of -- of being employed by the State. At this time, he was not a State agent, Your Honor. He was not -- had not worked in any way, shape, or form on this case. He did not perform the autopsy. He did not view the body. He did not perform the enzyme marker study in this case. He simply came in and reviewed results and photographs that had been conducted and taken by -- by individuals previously. He had no direct responsibility in this case aside from --
04-8990 +++$+++ 31943 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you're -- you're basically arguing he was not a credible witness.
04-8990 +++$+++ 31944 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He was not a credible witness, Your Honor.
04-8990 +++$+++ 31945 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what is the answer to my question? Because I do think it turns on this. A lot does. The trial judge sat there and said this is very important. Dr. Blake is quoting from something called part 5, which I thought was his report. And then the trial judge says, where did you get that idea? Where did you get that idea, that the -- that the enzyme wasn't there in -- in the jeans' blood? Where did you get it? And he says I got it from the FBI report, I think. He's not certain because he's remembering his own conclusion. He isn't quite sure where he got it from. And now it turns out that the inc when they -- it said inc, which he thought meant there isn't much enzyme there. And then they say, well, maybe it meant inconclusive. And he says, that wouldn't matter because I guess I took it to mean that too would show there wasn't much enzyme there. Both would come to the same thing. And now, if I'm sitting there and thinking, I'm thinking, well, either there is or there isn't this enzyme in the -- in the blood that's right there. Easiest thing in the world to prove. And if somebody is going to dispute it, the State will come back and say, no, no, the enzyme is there. But they didn't. So I read the testimony and I read the fact that you didn't dispute it with any evidence that's saying, yes, the enzyme is not there.
04-8990 +++$+++ 31946 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, Agent Bigbee specifically testified that the enzyme was there.
04-8990 +++$+++ 31947 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He did? Where is that?
04-8990 +++$+++ 31948 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He specifically testified on page 282 of the joint appendix. He specifically said, that doesn't mean it wasn't present. He also pointed out GLO should have been present --
04-8990 +++$+++ 31949 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's --
04-8990 +++$+++ 31950 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and said it wasn't.
04-8990 +++$+++ 31951 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It doesn't mean it isn't present isn't quite the same thing, is it?
04-8990 +++$+++ 31952 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Agent Bigbee specifically testified that the enzyme was present. It could not be typed to any degree of certainty. So he simply called it inconclusive but that it was present. If it had not been present, he would have marked it N/A, meaning no activity, which was also included in the report in a separate location. But I think it goes beyond --
04-8990 +++$+++ 31953 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Smith, would -- could you focusing on this, what's called a finding, although the district judge himself puts it under conclusions of law, just -- the court concludes that the spillage occurred after the FBI crime laboratory received and tested the evidence. What is the basis, the specific basis, for that conclusion, that it occurred after the FBI tested the evidence?
04-8990 +++$+++ 31954 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The specific basis identified explicitly in the opinion was that Special Agent Scott, when he removed the -- the blue jeans from the hamper in Donna Turner's trailer, saw what appeared to be bloodstains on the jeans. That blood ultimately ended up testing as -- as positive for blood and, in fact, Carolyn Muncey's blood so that -- so that the stains were observed when they were removed from the hamper. He also noted that Agent Bigbee testified when he received the blood at the -- the FBI laboratory, there was no evidence of contamination. Agent Bigbee testified to the FBI protocols and said that if there had been any evidence of contamination or spillage, the evidence would have been returned without testing. So he looked specifically at that. He also looked and specifically pointed out a significant -- the testimony of Paulette Sutton, who indicated -- who was the blood spatter expert. She indicated that some of the bloodstains were mixed with mud, and to her that indicated that there had not been some accidental spillage in -- in an evidence container, that the mud and the blood would have -- were -- were combined to the extent that they would have had to get on the jeans at or near the same time. So those -- those things --
04-8990 +++$+++ 31955 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but then there was also the evidence that was not disputed, that it was a dry day and that there was no mud at all at the scene of the crime.
04-8990 +++$+++ 31956 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I'm not sure that the evidence is undisputed that it was a dry day. If you look at the autopsy report that's in -- that's in evidence in -- in the trial record, it specifically says that it was drizzling that day, that the temperature was between 80 and 90 degrees and it was drizzling. Mr. House showed up with blood all over his jeans. He got the blood somewhere. I don't -- nothing is -- I don't think it's entirely clear that -- that the conditions were dry. His -- his jeans were clearly muddy --
04-8990 +++$+++ 31957 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought that was --
04-8990 +++$+++ 31958 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and it showed up.
04-8990 +++$+++ 31959 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that it was agreed that there -- that the site where the body was found, that that was dry, that that was dry ground. I thought there was no dispute about that.
04-8990 +++$+++ 31960 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure that -- that it's clear where Mr. House got the mud on his jeans. He was -- he traveled some distance from the site of the body and -- and to his home. He could have gotten muddy en route. I -- I can't explain how he got the blood on his jeans. I know he showed up with muddy jeans. He got mud on his jeans at some point, and those -- and the mud and the blood were -- were intermingled. I'm not sure that they got on there at the same time. I'm also not sure that the mud that Paulette Sutton saw was -- was created by a combination of mud and water. It could have been perspiration. It could have been any other type of -- of fluid. It could have been blood creating the mud. So it's -- that is -- that's very ambiguous, and -- and I think that the fact -- the significance of the testimony is that it -- it did not indicate an accidental spillage after the fact of the blood onto the jeans. And I think that was -- that was the point that the district court took from that. He wasn't trying to -- to recreate the exact sequence of events in the crime. He was simply trying to pinpoint at what point the blood spilled because there's no question the blood spilled. The -- the photograph shows it spilled. The photograph shows that the -- that the tops had come off. But the -- the photograph also shows --
04-8990 +++$+++ 31961 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but isn't there also evidence that the spillage in the Styrofoam container seemed to be inadequate to account for all of the blood that was missing from the vial?
04-8990 +++$+++ 31962 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think there was testimony that -- that the appearance of it seemed to be inadequate. There was no specific quantification of the blood, and -- and no one -- no one attempted to do that. It's not clear whether some of the blood leaked out of the container and maybe wasn't contained within it. There were -- there were pieces of gauze that had blood soaked in it. There was also a dispute about the size of the vials.
04-8990 +++$+++ 31963 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but that's important for this whole question. Quantity relates to chain of custody.
04-8990 +++$+++ 31964 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think what's important is the point of the spillage. If -- if the blood spilled after it left the FBI lab -- and that was a specific finding made by the district court, and that finding is clearly supported by the record. What happened to the blood, where it spilled after the fact -- and we know that it did spill -- really is -- is beside the point because --
04-8990 +++$+++ 31965 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Another blood question because I -- the -- you make a point of the -- the sheriff having said, well, I -- I saw blood on the jeans. So I looked at the pictures and the pictures seem to have little tiny bits of blood, while a lot of mud. So I came to the conclusion that no reasonable person could think that that testimony really shows that the -- that there was -- there was blood from the -- from the victim on his jeans. Now, am I right about that? You're going to think I'm wrong, and I want to hear why.
04-8990 +++$+++ 31966 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I do think you're wrong, Your Honor, because I -- I think that if you look in the record, there are at least four witnesses who indicated that they saw the blood. One was Special Agent Scott.
04-8990 +++$+++ 31967 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How could you have? It's so tiny.
04-8990 +++$+++ 31968 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, the -- the photographs that you have are photographs that are taken after portions of the jeans have been cut out and sent for testing. You're not seeing everything that -- that the agent saw. Special Agent Scott saw what he believed to be blood. He couldn't -- he didn't know it was blood, but -- but he suspected it was blood. He identified in -- in the habeas proceeding the areas that he believed it to be blood, and it turned out to be blood. Jerry Morissey, who was the defense serologist and -- and, incidentally, just to -- that reminds me of -- of a comment made by my colleague in his argument about defense counsel's deficiency in not -- in not hiring a serological expert. He had a serological expert. Jerry Morissey testified, was a serologist, and testified that he received the jeans after the FBI tested it. He was unable to duplicate the result, but as part of his testimony, he said that he observed some bloodstains, what he thought to be bloodstains, around the FBI cuttings, and he attempted to do additional testing on those bloodstains. So he saw the stains. Agent Bigbee testified that he observed the stains. He didn't say that some were big or some were small. He said that he observed them. As well, Paulette Sutton in the Federal habeas proceeding said that she saw the stains. She said she couldn't tell upon observation that it was blood, but it was dark and she suspected it was blood. It was suspicious. So we have at least four witnesses who say they saw this blood. This wasn't microscopic. This was something that -- that witnesses -- and incidentally, Paulette Sutton's observation was borne out because she did presumptive testing. So the things that -- the spots that she suspected were blood in fact turned out to be blood.
04-8990 +++$+++ 31969 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Ms. Smith, could -- could you go on to some of the other elements that are contested here? In particular, I'm interested in -- in Mr. Muncey's confession. What -- what do you -- what do you say about that?
04-8990 +++$+++ 31970 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I -- I think of all the evidence presented below, I think that the confession evidence is -- is perhaps the least reliable in terms of -- of the Schlup analysis.
04-8990 +++$+++ 31971 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ What did the jury hear about Muncey's confession?
04-8990 +++$+++ 31972 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The jury was never informed of Muncey's confession because the --
04-8990 +++$+++ 31973 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ I thought not.
04-8990 +++$+++ 31974 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the fact of Muncey's confession didn't come up until 13-14 years after the trial had already been concluded. And -- and that's one of the things that the district court, in -- in examining their testimony, found what was significant in his --
04-8990 +++$+++ 31975 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But wasn't the district court incorrect in that? Because as I understand it, there was evidence from one of the two witnesses who put in the confession evidence that she had gone to the sheriff's department to -- to tell them about the confession and had simply gotten a runaround and finally left. So as I understand it, the -- the record would not support the finding that -- that the -- the sources of evidence simply kept silent for over a decade.
04-8990 +++$+++ 31976 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's what the witness testified to, Your Honor.
04-8990 +++$+++ 31977 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, is there any reason not -- did the -- did the district court explain that it was rejecting that element of the witnesses' testimonies?
04-8990 +++$+++ 31978 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The district court did not specifically address that element of the witnesses' testimony. The court found that it -- specifically that it was not impressed with the testimony of a witness who waits. And -- and this Court has said on many occasions that --
04-8990 +++$+++ 31979 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I know, but without getting to that point, it sounds as though the district court simply made a mistake, just forgot I suppose, the evidence that the witness didn't wait at all.
04-8990 +++$+++ 31980 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, regardless of whether the witness waited or not, the Court examined the credibility of the testimony and found that it wasn't credible.
04-8990 +++$+++ 31981 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but one of the reasons for the finding of -- of incredibility was the decade or more of silence.
04-8990 +++$+++ 31982 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was one of the reasons, but the primary reason that the -- that the confession itself was inconsistent with the other evidence, and that was what the court specifically pointed to in his opinion.
04-8990 +++$+++ 31983 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the -- tell -- help me out here. As -- as has been explored earlier, the confession referred to -- to some of the injuries on the body, but not to all of them. Were there -- were there other disparities between the confession and -- and the -- and other evidence?
04-8990 +++$+++ 31984 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There were several disparities, Your Honor. The confession indicates that there was apparently an extensive argument at home. The testimony of the daughter both at trial and in the habeas corpus proceeding was that there was no such argument. She heard no argument. And the court, incidentally, found her testimony to be very credible. He observed her demeanor and -- and found her testimony to be credible. So that's inconsistent.
04-8990 +++$+++ 31985 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, as far as that's concerned, she did testify that there was a car out there.
04-8990 +++$+++ 31986 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-8990 +++$+++ 31987 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the rest of the story doesn't -- doesn't put the defendant House at the time of the crime in a car. He's walking.
04-8990 +++$+++ 31988 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the -- the testimony at trial was ambiguous about the -- about the car. The witness identified two separate incidents. She heard a car and she heard someone inquire as to Mr. Muncey's whereabouts, and then she also heard an individual come and tell her -- her mother that her father had been in a wreck down by the creek and heard her mother leave sobbing. Those are two distinct incidences. And Lora Muncey testified that she did not know whether she had gone back to sleep. She never could identify or -- or define the specific length of time between the two. But logically those are two separate incidences. It doesn't make sense for someone to come and ask where Mr. Muncey is and then to say, well, he's down by the creek. He just had a wreck. So it -- it seems that just logically those are two separate incidences, and there's nothing in the -- in the testimony to indicate that -- that they're same.
04-8990 +++$+++ 31989 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they happened at the same time, didn't they? The --
04-8990 +++$+++ 31990 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. The --
04-8990 +++$+++ 31991 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the child testified to what she heard, and I thought she heard a car and someone in a low voice, and then her mother left with that someone.
04-8990 +++$+++ 31992 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. She heard a car and someone inquire as to the whereabouts of her father, and she heard her mother answer. And then there was a period of time where she said she wasn't sure whether she went back to sleep or not, and then she heard a person with a low voice come in and inform her mother that she -- that -- that her father, Hubert Muncey, Jr., had been in a wreck down by the creek. She heard her mother sob and leave with the individual who had relayed that information. Those are two distinct incidences. But beyond that -- the -- the court, incidentally, found her testimony to be very credible, found that her testimony did not support this -- this theory of some sort of confrontation in the house. In addition, the court also heard the live testimony of Hubert Muncey, Jr. himself, explaining his whereabouts, explaining -- and actually denying ever having made the statement. And -- and the court balanced that. As well, Dennis Wallace, who testified at the evidentiary hearing -- he investigated a missing person's report. He was in the home. He saw no evidence of any sort of struggle in the home. So all of these things balanced against this -- this confession, which has absolutely no corroborative support in the record, the court found that the testimony simply wasn't credible.
04-8990 +++$+++ 31993 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it did have corroboration. Wasn't there a -- a wound on the victim that was consistent with -- with the confession?
04-8990 +++$+++ 31994 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was a -- a wound to the victim's left forehead.
04-8990 +++$+++ 31995 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was that not consistent with the confession?
04-8990 +++$+++ 31996 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The confession was that Mr. Muncey hit her and she fell and hit her head.
04-8990 +++$+++ 31997 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You tell me yes or no. Was it -- was it consistent with the confession?
04-8990 +++$+++ 31998 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it could be consistent with the confession. It was -- it was very sketchy. There -- there was a dispute between the two pathologists in the habeas as to whether or not that -- that wound could have been sustained by -- by falling and hitting her head on a table and actually could have created the -- the damage in -- in the brain.
04-8990 +++$+++ 31999 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So overall, if -- looking at this -- and that's why I think the question about the weight to give to the fact finding is important. You think -- you have a theory under which he could have done it, and it's certainly possible in my opinion. But also you think, my goodness, if he did it, going and this luring of the woman to the creek -- you know, there's nothing else in the record that suggests he would plot in that way to do this. Nothing. The husband is away at the time from the dance. He could have done it. They are fighting. They could have done it. And if the luring theory correct, the motive was sexual, but the sexual physical evidence is from the husband, not from him. So the jury is brought into this on a theory that there is a sexual attack and the one -- by the defendant, and the one thing that seems disproved pretty much is that. And now we have two experts, Dr. Blake and Dr. Bigbee. And reading a page, which I hadn't read thoroughly until you pointed it out, I'd say they might disagree. They might disagree. And it's just not conclusive. So if you're sitting there, do you have to have a reasonable doubt when there's such strong evidence for both people? And -- and the part that's bothering me -- I -- I see what that district judge said on that one point, which he may have thought was peripheral but it turns out to be quite important about when the blood spilled. But if you look to the underlying thing and I think, well, maybe you're right, but maybe you're not right. And so how do -- how do I -- how do I do this? What's the -- what's the weighing? I sit there and think, my goodness, I don't know who committed this crime if I'd been on that jury. And could -- could a person sitting there reasonably come to a conclusion, my goodness, I know?
04-8990 +++$+++ 32000 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think to answer your question is if you are at that mental state where you are saying maybe this evidence is right, maybe that -- that evidence is right, maybe I can go one way or another, then I think the respondent prevails in this case --
04-8990 +++$+++ 32001 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but that -- that simply says if the -- it seems to me you're simply saying there would be sufficient evidence to go the one way rather than the other. And -- and you may well be right about that, but that certainly is not the reasonable doubt standard.
04-8990 +++$+++ 32002 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it goes beyond just having sufficient evidence to convict, Your Honor. I think you also look at these credibility determinations and you look at the probabilistic result of a reasonable juror.
04-8990 +++$+++ 32003 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Justice Breyer has not heard these witnesses and hasn't had the opportunity to know whether -- whether, for example, these -- this testimony about the confession was credible or not.
04-8990 +++$+++ 32004 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
04-8990 +++$+++ 32005 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And the hearer of -- at the trial did have that opportunity.
04-8990 +++$+++ 32006 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The district court heard both of the -- both of the sisters regarding the confession. The district court heard Hubert Muncey, Jr. regarding the alleged confession.
04-8990 +++$+++ 32007 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but may I interrupt you? What -- what about -- I want to just follow up on something that Justice Breyer alluded to and that is the significance of the DNA evidence. And I have tended to -- to think that a reasonable juror would look at it this way, but if I'm wrong, I -- I want you to comment on it. One of the -- I -- I assume, to begin with, that any reasonable juror would have found this evidence, the evidence of the semen stains, extremely significant because not only did the State argue rape as a -- as a motive, possible motive, but there was a specific finding of an aggravated circumstance that the murder occurred in the course of kidnapping and rape. I don't know of any evidence that would suggest an -- an independent kidnapping crime without the rape element under, you know, the circumstances of -- of this crime. So I'm -- I -- I assume that the reasonable juror, having come to the conclusion that that aggravating circumstance is true, found that a rape was being committed. If that juror had heard the DNA evidence, that juror would have said the only positive evidence that a rape was committed here would be evidence that pointed to the husband, not in fact to -- to the defendant House. And if -- if a juror had heard that evidence, it seems to me it is highly unlikely that any reasonable juror would have concluded that that aggravating circumstance was found, and I suppose that would play a -- a significant role in -- in the ultimate conclusion. Now, you have argued that the fact that the DNA evidence shows that it was the husband's fluids, not House's, doesn't conclusively prove that House didn't rape her, and of course, you're right. But my understanding is that there is no evidence from which one would reasonably infer that House did this. Now, what is -- what is your comment on that --
04-8990 +++$+++ 32008 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My comment -- sorry.
04-8990 +++$+++ 32009 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- analysis?
04-8990 +++$+++ 32010 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My comment on the DNA evidence is that the DNA evidence did nothing more than confirm what the jury was -- already knew was very likely, which was that the donor of the semen was the husband. The jury at trial was informed that the husband -- and it went through several pages. In the joint appendix, it goes all the way from page 56 to 66 where we're exploring that the semen could have been deposited by the husband or by Mr. House.
04-8990 +++$+++ 32011 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there was a finding that it was in the course of the rape.
04-8990 +++$+++ 32012 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was --
04-8990 +++$+++ 32013 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That was part of that. That was -- that was one of the -- was it one of three aggravating circumstances?
04-8990 +++$+++ 32014 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ One of three, and -- and that was --
04-8990 +++$+++ 32015 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It was found at the guilt phase or the trial phase, the aggravating circumstance?
04-8990 +++$+++ 32016 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was at -- it was an aggravating circumstance of sentencing, that -- that the murder was perpetrated in the -- in the attempt -- in -- in the perpetration or attempt to perpetrate kidnapping or rape or attempted rape.
04-8990 +++$+++ 32017 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, then at -- at a minimum, it seems to me that the sentencing phase is -- is in question by that. But also, it seems to me if I were a juror and was faced with these conflicting things, I would look for motive.
04-8990 +++$+++ 32018 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the motive is -- is well supported by the circumstances. And in fact, if you look at the prosecutor's argument --
04-8990 +++$+++ 32019 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There is evidence of rape besides -- besides the semen. The semen wasn't the only evidence of rape, was it?
04-8990 +++$+++ 32020 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, sir, it wasn't.
04-8990 +++$+++ 32021 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There were scratches on the thighs.
04-8990 +++$+++ 32022 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was --
04-8990 +++$+++ 32023 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but the semen was used to -- to connect it to the -- to the defendant, and we now know that that's wrong.
04-8990 +++$+++ 32024 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The prosecutor argued at trial on the motive question, why else would someone lure a woman out of her home with a lie in the middle of the night in her night clothes and take her out into the woods, if not to have some sort of --
04-8990 +++$+++ 32025 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Who put in the evidence -- who put in the semen evidence?
04-8990 +++$+++ 32026 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The State put in the semen evidence, Your Honor.
04-8990 +++$+++ 32027 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They did that to prove she had sex with her husband? Is that the reason? (Laughter.)
04-8990 +++$+++ 32028 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The State put in the semen evidence because it was -- it was not inconsistent with Mr. House and that there was other evidence in the record that was not -- all of the -- all this -- this physical evidence was consistent with Mr. House, just as the semen was.
04-8990 +++$+++ 32029 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't it --
04-8990 +++$+++ 32030 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can I get back to this -- the standard of review question? Because it goes directly to this point. Even if you think that the argument based on the semen is not harmless error, in other words, that the prior jury may well have convicted based on that, we're not reviewing that jury's determination. Correct?
04-8990 +++$+++ 32031 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. You're looking at how -- how a reasonable juror would view the case if it knew --
04-8990 +++$+++ 32032 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So we should be looking at the case with the semen evidence showing what we know it to show, regardless of whether we think the prior jury was misled by the admission of that evidence.
04-8990 +++$+++ 32033 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's absolutely correct, Your Honor. If -- if the -- if a reasonable jury knew that the semen belonged to Mr. -- belonged to Mr. Muncey and not Mr. House, the result would be exactly the same because Carolyn Muncey's blood was all over Mr. House's pants. That is an indisputable fact. And all of this --
04-8990 +++$+++ 32034 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about at the sentencing stage? Justice Kennedy brought it up. The -- the prosecutor didn't emphasize unduly the semen at the -- at the guilt stage but, boy, made a big deal out of it at the sentencing stage.
04-8990 +++$+++ 32035 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I disagree that -- that they made a big deal. They made a big deal of the kidnapping at the sentencing phase. That was -- that was of significance. The -- what the prosecutor did --
04-8990 +++$+++ 32036 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where was it in the -- in the joint appendix? I thought it was more than kidnapping.
04-8990 +++$+++ 32037 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the -- the sentencing phase argument is not contained in -- in the joint appendix. The closing argument from the guilt phase is contained in -- in the joint appendix, but it's certainly in the -- in the transcripts before the Court. What -- what the prosecutor focused on at sentencing was -- was the kidnapping and also was the malice and -- and I'm sorry -- the -- specifically the kidnapping --
04-8990 +++$+++ 32038 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Said nothing about the semen --
04-8990 +++$+++ 32039 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The --
04-8990 +++$+++ 32040 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- at the -- at the sentencing stage?
04-8990 +++$+++ 32041 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At the sentencing phase, the prosecutor said that the evidence would have been consistent with sexual molestation, I think was the word that he used.
04-8990 +++$+++ 32042 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Ms. Smith.
04-8990 +++$+++ 32043 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Your Honor.
04-8990 +++$+++ 32044 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Kissinger, you have 4 minutes remaining.
04-8990 +++$+++ 32046 +++$+++ FALSE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Very quickly. Dr. Blake's testimony was not, in fact, discredited. Counsel for respondent says that -- places great significance on -- on Dr. Blake's interpretation of the initials inc as standing for incomplete penetration, and that -- correctly that should have been construed as inconclusive. Counsel fails to acknowledge the record -- record 4 of the district court, volume 6, page 906. Agent Bigbee himself uses the term inc to mean -- or incomplete, just as Dr. Blake did. So in addition to Dr. Blake saying, yes, I meant the same thing as Justice Breyer observed, Justice Bigbee himself uses the term inc to mean incomplete.
04-8990 +++$+++ 32047 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Page 282 of the joint appendix, he says inconclusive is what the inc stands for. Dr. Blake testified it is incomplete penetration, which I haven't the foggiest idea what that means.
04-8990 +++$+++ 32048 +++$+++ TRUE +++$+++ MR. KISSINGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that's correct, Your Honor. In trial, he used -- he said that inc stands for incomplete, and then Agent Bigbee at trial proceeded to use incomplete and inconclusive interchangeably just as Dr. Blake did. In addition, when -- concerning Dr. Blake's testimony, we have to remember that we still have the missing tube of blood, and the blood on the jeans is more consistent with blood coming from the degraded blood sample than it is from blood which came -- got on the jeans during the time of the offense. The other thing, which I think is an important matter to -- to keep in -- keep in mind regarding Dr. Blake's testimony and Dr. Bigbee's, is that Dr. Blake and Agent Bigbee both agree on the basic science that blood enzymes deteriorate according the various environmental factors and that as they deteriorate, they become less detectable. In terms of the -- the implicit credibility findings, which respondent relies upon, the district court during its opinion demonstrated that it know -- it knew how to make credibility findings. In fact, it made two specific credibility findings in this case when it found Mr. House's testimony to be incredible and the testimony of Lora Muncey to be credible. As far as the -- the suggestion that, yes, there was -- the crime scene was wet, that that -- that there was water at -- or there's a possibility of mud at the crime scene, not only is this contradicted by the absence of the mud -- of mud on the victim's clothing, but also the drizzling which counsel described occurred on the day following the murder, not before it happened, not at the time the murder was occurring, but on the day following the murder. So, in fact, there was -- the murder scene was dry, just as petitioner has informed the Court. As far as the daughter not hearing any sign of a struggle, the daughter's testimony was that she did not hear any sign of a struggle when she got up immediately after her mother left the home. The testimony at the evidentiary hearing, unrebutted and unimpeached, was that at that point in time when she was hearing nothing, her mother was, in fact, at the C&C Recreation Center involved in a fight with Hubert Muncey, Jr. In fact, that testimony goes to Mr. House's innocence because at the time she hears nothing, she hears no sign of a struggle, is the very time that the State of Tennessee contended that Mr. House was out murdering Carolyn Muncey, and yet the daughter who was outside of the home within 50 yards of where this murder occurred heard absolutely nothing. Justice Scalia asked was there, in fact, other evidence of -- of rape. Wasn't there, in fact, bruises found on her thighs? On cross examination, the pathologist testified, admitted on cross examination, that the scratches on Ms. Muncey's thighs were more likely attributable to her being dragged through the brush and her body being hidden which, incidentally, is an act which Mr. Muncey confessed to doing. In addition, as I stated before, the evidence has to be viewed in light of the entirety of the evidence of the record. It isn't just the blood evidence. It isn't just the semen evidence. It isn't even just the confession. It's also the fact that the same witness who puts Mr. Muncey -- or who puts Mr. House even leaving the Donna Turner home on the night of the murder puts Mr. House leaving the home at a -- thank you, Your Honor.
04-8990 +++$+++ 32049 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
04-905 +++$+++ 32053 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first today in Volvo Trucks North America versus Reeder-Simco GMC. Mr. Englert.
04-905 +++$+++ 32055 +++$+++ FALSE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: Sixty-six years elapsed between the passage of the Robinson-Patman Act and the judgment of the District Court in this case. In that time, there is no reported instance of a finding of a violation by a seller operating in an industry like this one in which a sale is made to the plaintiff distributor if, and only if, it has already secured a contract for resale to a particular end user. Courts have long understood that mere offers at different prices cannot violate the Act, because it requires two purchases, and that successful purchases in winner-take-all bidding cannot have the requisite effect on competition. To affirm the judgment below would open up new vistas for application of the Robinson-Patman Act where it has never been applied before. This case --
04-905 +++$+++ 32056 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You concede, though, don't you, Mr. Englert, that the language of the statute covers the conduct here?
04-905 +++$+++ 32057 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Very much the opposite, Your Honor.
04-905 +++$+++ 32058 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you have a person who's engaged in commerce, who's discriminating in the price that they offer to different purchasers. Now, I know your argument about the structure, but the actual language does seem to encompass the activity.
04-905 +++$+++ 32059 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't agree, with respect, Your Honor. With respect to mere offers, offering a price to different purchasers is not covered by the statutory language. With respect to the sales-to-sales comparisons, there is not the requisite effect of such discrimination --
04-905 +++$+++ 32060 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, just to --
04-905 +++$+++ 32061 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- on competition.
04-905 +++$+++ 32062 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- get to your first point, the statute talks about discrimination in price between different purchasers, and not different actual purchases.
04-905 +++$+++ 32063 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But this --
04-905 +++$+++ 32064 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It doesn't seem it's that much of a stretch to cover would-be purchasers, potential purchasers.
04-905 +++$+++ 32065 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, except that, back in 1947, this Court, in the Bruce's Juices case, made clear, in the early days of the Act, that it takes two completed sales to violate the Act. No one sale can violate the Act. Even earlier than that, the Third Circuit, in the Shaw's case, in 1939, laid down that rule, and it's been an accepted rule of Robinson-Patman Act jurisprudence for that entire time. And it is a natural reading of the statute, and in accordance with the general principle, that this statute should be construed consistently with the larger body of antitrust law.
04-905 +++$+++ 32066 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But may I not ask, Isn't it true that each of the parties here, over a long period of time, was a purchaser? I mean, the -- Reeder was a purchaser, was he not? They were a dealer.
04-905 +++$+++ 32067 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-905 +++$+++ 32068 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, they were a purchaser. And were not the other people who purchased from Volvo also purchasers?
04-905 +++$+++ 32069 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. With respect to the sales --
04-905 +++$+++ 32070 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So there were --
04-905 +++$+++ 32071 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- -to-sales transactions --
04-905 +++$+++ 32072 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- two purchasers.
04-905 +++$+++ 32073 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, with respect to the sales-to-sales transactions in which there were --
04-905 +++$+++ 32074 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Over a --
04-905 +++$+++ 32075 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- two purchases --
04-905 +++$+++ 32076 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- period of time, you had two purchasers.
04-905 +++$+++ 32077 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. But the statutory language is the effect of "such discrimination" must be to harm competition in one of these justified instances.
04-905 +++$+++ 32078 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the discrimination occurred over a period of a couple of years, as I understand it.
04-905 +++$+++ 32079 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. This case was tried on the basis of several discrete transaction comparisons. It was not tried on the basis of any systematic study of every offer to Reeder and every offer to --
04-905 +++$+++ 32080 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if --
04-905 +++$+++ 32081 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- another --
04-905 +++$+++ 32082 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- these are ordinary automobile dealers who sold out of inventory, would you agree that they were -- you had two purchasers?
04-905 +++$+++ 32083 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure.
04-905 +++$+++ 32084 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So that the whole point of your case is they're negotiated transactions?
04-905 +++$+++ 32085 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The whole point of the case is the -- is twofold. Each transaction is one in which there is a purchase if, and only if, there is already a contract for resale, so that when there is an offer compared to a purchase, you don't have two purchases. And when you've already got the contract for resale --
04-905 +++$+++ 32086 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but -- I mean, you say that, but the title goes to the dealer. The dealer makes the purchase. Aren't you -- as I understand your answer to Justice Stevens, and also your answer to the Chief Justice, if these were automobile dealers that sold some inventory, there would be a cause of action if you extrapolate this -- these kind of facts. One dealer being discriminated against, vis-a-vis another dealer.
04-905 +++$+++ 32087 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the requisite effect on competition is shown, yes.
04-905 +++$+++ 32088 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, and if there was a sale to the other dealer. You would say that there had to be a sale to the other dealer.
04-905 +++$+++ 32089 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There have to be two sales.
04-905 +++$+++ 32090 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Not just an --
04-905 +++$+++ 32091 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But there would --
04-905 +++$+++ 32092 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- not just an offer to the other dealer --
04-905 +++$+++ 32093 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-905 +++$+++ 32094 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- of higher prices.
04-905 +++$+++ 32095 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but there would be sales if they were selling from inventory. I mean, there would have been a preceding sale, and the sale would have been at differential prices, as between two dealers.
04-905 +++$+++ 32096 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that's the typical --
04-905 +++$+++ 32097 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-905 +++$+++ 32098 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Robinson-Patman case. That's the case in which there is a potential violation. The case in which there is a sale by the purchaser if, but only if -- I'm sorry, the case in which there is a purchase by the purchaser if, but only if, it already has the sale is the case in which it can't have lost that sale in competition with a favored dealer because of price discrimination, which is what the statutory language requires, which is --
04-905 +++$+++ 32099 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Englert --
04-905 +++$+++ 32100 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- why the Robinson-Patman Act --
04-905 +++$+++ 32101 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- suppose you had a case of two Volvo dealers, and the scheme is, as this one, specially ordered goods with competitive bidding, but, over a substantial period of time, one dealer -- we'll call that dealer the "favored dealer" -- consistently gets higher concessions, and the other dealer, who ends up being the plaintiff in the case, consistently, in that same period, gets lower concessions. So, we don't have a picture of what you call "mix and match," but two dealers, one consistently getting higher concessions, and one consistently getting lower, and, therefore, missing out on sales or making sales at a very low profit. That, too, would be out of Robinson-Patman, if I understand your view of the statute.
04-905 +++$+++ 32102 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- yes, I think that's correct. That's a closer case to what's the -- what the statute was designed to cover than this case, but, yes, that, too, would be out of Robinson-Patman.
04-905 +++$+++ 32103 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, you go back to the language -- are you finished with that answer? Go ahead and finish, if you want.
04-905 +++$+++ 32104 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Enough for now, Justice Breyer --
04-905 +++$+++ 32105 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right.
04-905 +++$+++ 32106 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- yes.
04-905 +++$+++ 32107 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In respect to the language, how do you read it? I think it's ambiguous. "To discriminate in price between different purchasers of commodities." Do you read it -- "different purchaser" -- "to discriminate in price in respect to that commodity that is purchased"? Do you read it "to discriminate in price between different purchasers of commodities -- i.e., the commodity, the particular item -- the commodity there refers to the particular item in respect to which there is the discrimination"? How do you want to read it, literally? I just want your --
04-905 +++$+++ 32108 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-905 +++$+++ 32109 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- literal reading of the statute to -- I agree with you, 60 years, nobody's questioned it. I agree with you, policy reasons, very strongly on your side. I agree with you, at least hypothetically, but for the particular language. So, look at the phrase and read the language as you want me to read it.
04-905 +++$+++ 32110 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, two different issues, Justice Breyer. With respect to the two-purchase rule, if the statutory language is ambiguous, and if it can be read to say "purchaser status is enough," then I think the principle stated in all of this Court's cases, that the Robinson-Patman Act --
04-905 +++$+++ 32111 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're giving --
04-905 +++$+++ 32112 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- should be construed --
04-905 +++$+++ 32113 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- me a policy argument. I don't want a policy argument, for the moment. I want to know -- what you're saying is that the word "purchaser" means "purchaser in respect to the particular commodity -- this one that is purchased, there has to be a discrimination in price."
04-905 +++$+++ 32114 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And there's a textual reason --
04-905 +++$+++ 32115 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what you're hearing, I think, is, well, this person, the dealer, bought other items in respect to which there was no discrimination in price. So, he is a purchaser of that commodity. You see, "commodity" could refer to the kind of thing -- Volvo trucks -- or it could refer to the particular thing -- this truck. And I want to know how you read the literal language.
04-905 +++$+++ 32116 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The textual answer to your question is --
04-905 +++$+++ 32117 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's all I want --
04-905 +++$+++ 32118 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the phrase --
04-905 +++$+++ 32119 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the textual answer.
04-905 +++$+++ 32120 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the phrase "the effect of such competition" ties --
04-905 +++$+++ 32121 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, no, no. I'm very --
04-905 +++$+++ 32122 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, the effect of such --
04-905 +++$+++ 32123 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- sorry. The effect of such competition --
04-905 +++$+++ 32124 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- discrimination.
04-905 +++$+++ 32125 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- was conceded in this case, that there's the effect on the competition. There are two separate things. There is the truck that was purchased by the disfavored dealer. In respect to that, he wasn't hurt, in the sense of the statute, because, even though he got a lower profit margin, that doesn't count. I'm not focusing on that. I am focusing upon the truck that he did not purchase. The reason that the disfavored dealer did not purchase that truck is that he had a rival -- maybe there's only one case of it, but there's at least one -- he had a rival, the favored dealer, who got the purchase. He got the order from the customer, and then ordered the truck. Now, in that one, I take it, the problem is that there was no purchase by the disfavored dealer.
04-905 +++$+++ 32126 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-905 +++$+++ 32127 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. But what you're hearing is, "So what? He was a dealer whose line of business was to purchase Volvo trucks, and, therefore, he is a purchaser of a commodity -- namely, Volvo trucks."
04-905 +++$+++ 32128 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-905 +++$+++ 32129 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And there was a discrimination -- namely, the offer was discriminatory. And there was a harm to competition, in the -- in the Robinson-Patman sense -- his rival got the sale.
04-905 +++$+++ 32130 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I still question whether --
04-905 +++$+++ 32131 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, I want the textual answer.
04-905 +++$+++ 32132 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay. I still question whether the -- under the text -- the effect of such discrimination was the requisite effect on --
04-905 +++$+++ 32133 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-905 +++$+++ 32134 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- competition. But --
04-905 +++$+++ 32135 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The effect of such discrimination is that his next-door rival, in effect, "got the sale." Do you want to say that isn't enough?
04-905 +++$+++ 32136 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I do want to say that isn't enough. And, Justice Breyer, first of all, I --
04-905 +++$+++ 32137 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let's assume I don't agree with you about that. Now --
04-905 +++$+++ 32138 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-905 +++$+++ 32139 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- what?
04-905 +++$+++ 32140 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Englert, I thought you were relying on the succeeding phrase, where "either or any of the purchases involved in such discrimination are in commerce," which seems to require that -- "to discriminate in price between different purchasers where either or any of the purchases involved in such discrimination" -- I thought that's what you were hanging your hat on, to say that there has to be a discrimination in particular sales.
04-905 +++$+++ 32141 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the statute, read as a whole, compels that conclusion. But if I'm wrong about that, and if there is enough ambiguity to admit of a different conclusion, then the principle comes into play that cases of ambiguity in the Robinson-Patman Act are construed to be more consistent with the overall --
04-905 +++$+++ 32142 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, of course, if we can go back to the language, it's between different purchases of commodities of "like grade and quality." And that seems to me to indicate that Volvo Trucks, generically, must be looked at -- the policy, with reference to Volvo trucks, generically. Suppose one dealer always got a 10 percent discount, the other dealer always got a 20 percent discount over a period of time.
04-905 +++$+++ 32143 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I think everyone, including the lower courts in this case, agrees that you don't look at the goods generically. You have to look at their characteristics to determine like grade and quality. And I would actually think that the grade --
04-905 +++$+++ 32144 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It has to be purchase-by-purchase to determine like grade or quality?
04-905 +++$+++ 32145 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Every Robinson-Patman case there's ever been has been purchase-by-purchase at the level of --
04-905 +++$+++ 32146 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Fine. That's --
04-905 +++$+++ 32147 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- sale from the manufacturer to the dealer.
04-905 +++$+++ 32148 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You've put your finger right on it. My question is so obvious that you're not giving me an answer. Every case for 60 years has been on your side of it. Those judges, though, were -- must have been reading some language. And how did they interpret that language? That's all I'm asking you. A very literal question. It has nothing to do with policy or anything. And all I want you to do is take the statute and read the language so that it is possible for you to win this case.
04-905 +++$+++ 32149 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
04-905 +++$+++ 32150 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
04-905 +++$+++ 32151 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm a manufacturer. I'm reading the statute. I have to give a price on a particular deal. I realize I can't discriminate in price between different purchasers of like grade and quality, where the effect of such discrimination may be one of the prohibited effects. I say, "Okay, can I give a different price to one dealer or to another?" Yes, I can, because it says "different purchasers of commodities of like grade and quality." It is a specific instance of a purchase, a specific instance of discrimination. The very words in the statute are what judges have read consistently to compel that result.
04-905 +++$+++ 32152 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask this question, just to get it in the -- Supposing volvo had a policy of granting everybody a 20 percent concession, and they had -- except Reeder -- and they always granted Reeder just a 15 percent concession, and the -- you had the same sales pattern you have here. Would there be a violation of the Robinson-Patman Act?
04-905 +++$+++ 32153 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, again --
04-905 +++$+++ 32154 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Prima facie violation.
04-905 +++$+++ 32155 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the answer is no, Your Honor, although that -- although that would be a closer case --
04-905 +++$+++ 32156 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even if there --
04-905 +++$+++ 32157 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- than this case.
04-905 +++$+++ 32158 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- were dozens and dozens --
04-905 +++$+++ 32159 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This case was tried on the basis of the same transactions.
04-905 +++$+++ 32160 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- of sales to both.
04-905 +++$+++ 32161 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes. That would be a closer case. But the -- it might fit the policy of the Act, but it's a very poor fit with the words of the statute. And --
04-905 +++$+++ 32162 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it depends on how -- whether you regard the purchase as on a single -- each single transaction as a separate purchase or if you look at a course of dealing and say that, over a period of years, the favored dealer is one purchaser and the disfavored dealer is the other purchaser. Why can't you look at the pattern of dealing by automobile dealers over a period of time?
04-905 +++$+++ 32163 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be the argument in favor of an expansive reading of the language in the hypothetical example to cover that case. But it would not be consistent with the general policies of antitrust law.
04-905 +++$+++ 32164 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It would be consistent with the literal language, wouldn't it? If you treat it, the purchaser, as a -- as -- look not at just individual transactions, but what they do over a period of years, just like any other -- any ordinary automobile dealer. Two dealers in this market, one in Arlington and one in Bethesda, are both purchasers, even though they may not compete on the same transactions, aren't they?
04-905 +++$+++ 32165 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The effect of such discrimination has to be to harm competition with the favored purchaser. And if all transactions are hermetically sealed from one another, yes, the buyer might like a better price, but it's not complaining about the effect of such discrimination on competition with the favored purchaser. To put this point in perspective, imagine that Volvo raised its price to every so-called favored purchaser --
04-905 +++$+++ 32166 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But --
04-905 +++$+++ 32167 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in this case.
04-905 +++$+++ 32168 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You would agree, in my hypothetical, there's discrimination, but you'd say there's no injury to competition.
04-905 +++$+++ 32169 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's no injury to competition that is the effect of such --
04-905 +++$+++ 32170 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even if you --
04-905 +++$+++ 32171 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- competition with --
04-905 +++$+++ 32172 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- got an expert to --
04-905 +++$+++ 32173 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a favored purchaser that is the effect of such --
04-905 +++$+++ 32174 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- even if you got an expert to come and say, "Well, these two dealers are in the same relevant market, and there's a likelihood that customers go to the favored dealer," that would not be a prima facie --
04-905 +++$+++ 32175 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, if you have that evidence?
04-905 +++$+++ 32176 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-905 +++$+++ 32177 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That there is a likelihood that, in a pattern, customers have gone to the favored dealer? That's -- that begins to come within the statutory language in a way this case does not.
04-905 +++$+++ 32178 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I understand --
04-905 +++$+++ 32179 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is no customer testimony, no evidence of diversion to any favored dealer in this case, no evidence that Reeder lost profits because of the price given to any favored dealer, only evidence that if Reeder had gotten a price, it would have -- better price -- it would have made more money. Well, every dealer can show that.
04-905 +++$+++ 32180 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I understand your argument that there's no injury or impact in competition for resale of the trucks. What's wrong with looking at the statute as being concerned to protect competition to be the Volvo dealer? In other words, you know, they're competing -- if Volvo's restructuring its approach, they're competing to be the favored dealer, even though they don't compete with other Volvo dealers directly.
04-905 +++$+++ 32181 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The main problem with that interpretation of the statute is, it takes the last phrase of the statute and makes it no longer a limiting phrase. It essentially makes all price discrimination illegal. And this Court said, in Brooke Group, and has said in many other cases, that it is not -- not all price discrimination is made illegal by this statute. It does require the requisite effect on competition. I'd like to reserve the balance of my time.
04-905 +++$+++ 32182 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you. Mr. Hungar.
04-905 +++$+++ 32184 +++$+++ FALSE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The fundamental question in this case is whether a plaintiff who did not purchase goods for resale in competition with a favored purchaser can, nonetheless, establish all the elements of a Robinson-Patman Act claim by picking and choosing from among different aspects of unrelated transactions. The position of the United States is --
04-905 +++$+++ 32185 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But how can you say --
04-905 +++$+++ 32186 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that the answer is no.
04-905 +++$+++ 32187 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that the dealer didn't purchase goods for resale in competition with other Volvo dealers? That's exactly what they do every day, isn't it?
04-905 +++$+++ 32188 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. When they purchase the goods, they are not in competition with any other Volvo dealer. By definition, they have the sale. And so, if --
04-905 +++$+++ 32189 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can't they be --
04-905 +++$+++ 32190 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's the point that I'm making.
04-905 +++$+++ 32191 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- in competition just from -- on a day-to-day basis over the years, over a period of time, trying to get business?
04-905 +++$+++ 32192 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In a different sense, they may be in competition --
04-905 +++$+++ 32193 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Assuming --
04-905 +++$+++ 32194 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- with other --
04-905 +++$+++ 32195 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- they're in the same relevant market, of course.
04-905 +++$+++ 32196 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In a different sense, yes. But the point is, the price discrimination does not occur when there is any competition. And, therefore, the requirements of the Act are not satisfied.
04-905 +++$+++ 32197 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're assuming they're not in competition on a continuing basis, they're only in competition for one isolated transaction after another.
04-905 +++$+++ 32198 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. The -- they may be, in other senses, and in -- and in seeking other customers, in a -- in some sense, in competition with other Volvo dealers. But, at the point that the price discrimination occurs, they are not. And, therefore, even in the -- in the -- in the -- well, in any of the examples offered by the Respondents in this case, they don't show price discrimination between competing purchasers, which is what this Court, in the Morton Salt case and in other cases, have indicated the Act was aimed at. And as Mr. Englert indicated, that is why, in the 70 years since the Robinson-Patman Act was enacted, we haven't seen cases like this, because it is understood that the Act has no application in these circumstances, and --
04-905 +++$+++ 32199 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Two --
04-905 +++$+++ 32200 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I would --
04-905 +++$+++ 32201 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- two dealers within 10 miles of each other, customers frequently go to both dealers to check out -- to get the lowest price. Dealer A gets 10 percent discount routinely; Dealer B, 20 percent discount routinely. Over a period of time, would there be a violation of the Robinson-Patman Act?
04-905 +++$+++ 32202 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And all the same structure as this --
04-905 +++$+++ 32203 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-905 +++$+++ 32204 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- hypothetical? Well, the answer is no, but only for, I think, one of the several reasons why in this case the answer is no. That is, in your hypothetical they are, in a sense -- and I'm assuming that there might be direct head-to-head competition, but the offers are different -- or affected by the differing differentials. So, there is -- there is competition between the purchasers, and there is discrimination in offers, although not in purchases. So, there is still the two-purchaser requirement which is not satisfied in that circumstance. There is the -- Reeder is not purchasing in -- assuming it loses the sale to the other customer, it's not purchasing in competition with a favored customer, a favored dealer, because it's not purchasing at all.
04-905 +++$+++ 32205 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Just so --
04-905 +++$+++ 32206 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I would point out that even if the Court is unwilling to go that far in this case, that you don't need to go that far to resolve this case and to reverse the judgment below for the other -- because of the other failings in the plaintiff's case here.
04-905 +++$+++ 32207 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the -- and the main failing there is that Volvo Trucks and Reeder-Simco do not compete in the same market for sales of Volvo trucks. Is that a correct statement of the record?
04-905 +++$+++ 32208 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think I would put it that way. I think, again, they don't compete at the point at which the price --
04-905 +++$+++ 32209 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ For any --
04-905 +++$+++ 32210 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- discrimination occurs.
04-905 +++$+++ 32211 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- particular sales.
04-905 +++$+++ 32212 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Yes.
04-905 +++$+++ 32213 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I see.
04-905 +++$+++ 32214 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that's --
04-905 +++$+++ 32215 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
04-905 +++$+++ 32216 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- right. Other than -- there are the -- the two examples of what have been called head-to-head competition, in one of which there was clearly no price discrimination, in the other of which our reading of the record is that a reasonable jury could not have found that there was price discrimination. And even if there were price discrimination, that one instance, standing alone, could not support a finding of a Robinson-Patman Act --
04-905 +++$+++ 32217 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why not?
04-905 +++$+++ 32218 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- violation.
04-905 +++$+++ 32219 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why not? The -- Hiland -- is that the one?
04-905 +++$+++ 32220 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because there --
04-905 +++$+++ 32221 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Hiland Dairy?
04-905 +++$+++ 32222 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- because there's no substantial injury to competition.
04-905 +++$+++ 32223 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In other words, a -- I mean, you could go in -- I see that. But what -- is there any authority for that, that just one -- a head-to-head competition, he bought the truck. Let's -- keep that out of it, so imagine they bought the truck, they resold it, and the market structure is such there probably is quite a lot of competition, in fact, with other dealers, and they lost at least one sale. That's not enough to prove an injury to competition?
04-905 +++$+++ 32224 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Your Honor. I mean, clearly --
04-905 +++$+++ 32225 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's the authority for that?
04-905 +++$+++ 32226 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, certainly the Morton Salt inference wouldn't apply, because there's no substantial --
04-905 +++$+++ 32227 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's a different matter. That's a -- what -- I'm saying, What authority is there -- have there been cases in which that was not viewed? After all, let's suppose the dealers are located geographically in about the same place, and it's logical to think they'd go for the same customers. They overlap. Their territories are close. Logical to think people shop around for trucks. And we have in the record one item where they -- one instance in which they found the customer, and he said, "Yeah, I did -- I did go and shop in both. I lost" -- the disfavored dealer lost the sale.
04-905 +++$+++ 32228 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't --
04-905 +++$+++ 32229 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Any authority?
04-905 +++$+++ 32230 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this Court's cases, and the lower courts', have understood the Act to require a likelihood of a substantial injury to competition --
04-905 +++$+++ 32231 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, they say, "This is our evidence that it is likely." Just what I said.
04-905 +++$+++ 32232 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But one sale is not substantial, Your Honor, I would submit. And, moreover, in this case, of course, they don't have that evidence of the close dealer with whom they are in repeated competition for the same customers that -- and so, I don't think we have that case. We don't have a substantial injury, even if you assume -- even if you read the evidence the way they do with respect to the one head-to-head competition. And it's important to understand that this -- the two-purchaser rule is not the only flaw in the judgment below. The Act requires causation. That is, the price differential must cause the injury to competition. Here, it's not the price differential that causes the injury, in the sense that the Robinson-Patman Act addresses. The Act is addressed to the situation where they're competing head to head, the favored purchaser has a competitive -- a relative competitive advantage which allows them to offer a lower price and, thereby, either get the sale or reduce the profits of the competing purchaser. But that's simply not the case here in these sales-to-sales or offers-to-sales competitions. The fact that some other dealer in some other transaction with some other customer got a better price has absolutely no relevance, no significance, and no effect on Reeder's ability to get a sale or make a profit in its transactions with an unrelated customer. So, there -- the causation element that's so crucial under the Act is absolutely missing here. And, in fact, Reeder's interpretation would simply read the injury requirement out of the statute. They would say, "Whenever there is a price differential, we've been injured, because if we had gotten the lower price instead of the higher price, we would have made more money." So, there's per se injury. The Morton Salt inference is converted into an irrebuttable presumption --
04-905 +++$+++ 32233 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. --
04-905 +++$+++ 32234 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- contrary --
04-905 +++$+++ 32235 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- Mr. Hungar, do you agree with Mr. Englert that even if you had -- you could -- you had a case based on two dealers, one consistently gets higher concessions, one consistently gets lower concessions, and they're in roughly the same market -- that even that would not be covered by Robinson-Patman?
04-905 +++$+++ 32236 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And they're in repeated head-to-head competition for the same customers -- one gets -- they're getting --
04-905 +++$+++ 32237 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I --
04-905 +++$+++ 32238 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- differential offers? Is that --
04-905 +++$+++ 32239 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I'm not putting the head-to-head in. Just, one of his sales gets lower concessions; one, higher. That's --
04-905 +++$+++ 32240 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree that that would not be actionable under the Robinson-Patman Act. The reasons why -- the reason, or reasons, why depend on whether they are in head-to-head competition or not. If they're never in head-to-head competition, then they're never in competition --
04-905 +++$+++ 32241 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let me just --
04-905 +++$+++ 32242 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and they would fail to have --
04-905 +++$+++ 32243 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- modify Justice Ginsburg's question a little bit. Supposing, over a period of years, one dealer always got 15 percent off, and the other one always got 20 percent, and there's testimony they're in the same relevant market, so presumably customers can go to either one. What more do they have to prove to establish a prima facie case?
04-905 +++$+++ 32244 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They have to prove at least what Morton Salt said, which is price differentials between competing purchasers. And the way the purchasers were competing in Morton Salt was that --
04-905 +++$+++ 32245 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I understand --
04-905 +++$+++ 32246 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- they were both competing --
04-905 +++$+++ 32247 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- I understand the Morton Salt case, but do the -- I'm assuming they're in the same relevant market in which customers patronize both of them from time to time, but they can't identify that Mr. Smith was here on this day, and the other dealer on the same day, but just an overlapping in the -- in the same competitive market. Would that not create a prima facie case? And if not, how much more would they have to prove?
04-905 +++$+++ 32248 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in this market, they'd have to show that they were purchasers --
04-905 +++$+++ 32249 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well --
04-905 +++$+++ 32250 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- at --
04-905 +++$+++ 32251 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- they're both purchasers. They're dealers, in my hypothesis. Each of them buys a hundred cars a year, and one of them pays a higher price than the other, and they're in the same relevant market --
04-905 +++$+++ 32252 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, but they haven't purchased --
04-905 +++$+++ 32253 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What?
04-905 +++$+++ 32254 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They haven't purchased in connection with the --
04-905 +++$+++ 32255 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They all purchased --
04-905 +++$+++ 32256 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a price discrimination --
04-905 +++$+++ 32257 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- for the purpose of reselling, if they can find customers.
04-905 +++$+++ 32258 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, right. But, as Justice Scalia pointed out, the Act clearly does not apply to offers. It requires purchases --
04-905 +++$+++ 32259 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I understand.
04-905 +++$+++ 32260 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and it requires --
04-905 +++$+++ 32261 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In my case --
04-905 +++$+++ 32262 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- sales.
04-905 +++$+++ 32263 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- there are a hundred purchases by each of them at different prices. What more do they have to prove, other than that they were in the same relevant market?
04-905 +++$+++ 32264 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They have to prove that they were in competition with each other and that competition was --
04-905 +++$+++ 32265 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now, isn't the fact they're --
04-905 +++$+++ 32266 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- injured by --
04-905 +++$+++ 32267 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- in the same --
04-905 +++$+++ 32268 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the differential.
04-905 +++$+++ 32269 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- relevant market enough to prove they're in competition with each other?
04-905 +++$+++ 32270 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, because -- it's not enough to prove they're in competition with each other. They have to prove that they are in -- that the price differential injured, or was likely to injure, substantially, that competition. And that is not true if they aren't competing in connection with the transactions --
04-905 +++$+++ 32271 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but if you're looking at --
04-905 +++$+++ 32272 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in which the price discrimination occurs.
04-905 +++$+++ 32273 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- if you're looking at broad market competition, you don't normally require them to identify competition on a customer -- on a per-customer basis. The only reason we get into the per-customer basis is that we have this odd -- not an odd situation, but the situation with Volvo trucks that no dealer ever buys unless he's already got a -- got a sale waiting. But in Justice Stevens' hypothetical, we -- as long as the market was identified, and as long as they were buying, we wouldn't require anything more to show competition, would we?
04-905 +++$+++ 32274 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ May I answer?
04-905 +++$+++ 32275 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Sure.
04-905 +++$+++ 32276 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, if -- I understood Justice Stevens' hypothetical to address the situation where, as in this circumstance, they are not competing at the point at which they actually purchase --
04-905 +++$+++ 32277 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No.
04-905 +++$+++ 32278 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the product. If it were the traditional Robinson-Patman Act case, where they purchase for inventory and are both trying to sell the same goods to the same customers, then yes, the problems that we've identified here would not exist.
04-905 +++$+++ 32279 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Hungar.
04-905 +++$+++ 32280 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-905 +++$+++ 32281 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Phillips.
04-905 +++$+++ 32283 +++$+++ FALSE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: It seems to me there are three issues that have been posed by the way both this case has been argued by the parties on the other side and as the questions have arisen. And the first one is whether or not there is competition in this particular case. And Justice Stevens' question, it seems to me, posed the issue about as starkly as it can be: Is it not the case that under traditional standards of Tampa Electric, this Court's decision there, and a host of other cases, that we define "competition" by reference to whether or not entities compete for the same -- with respect to the same product in the same market, same region, and if they're -- if that's what you have by way of competition, then you look to the next level, which is to see: Is there price discrimination, and is there injury to that competition?
04-905 +++$+++ 32284 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What evidence was there of competition here? How -- did you bring forward instances where they both bid for sale of special trucks to a single repurchaser?
04-905 +++$+++ 32285 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we clearly did that with the -- with the Hiland case. That was -- that was clear. But the testimony was uncontested on both sides. Both Reeder's -- Reeder testified, "We compete against other dealers every day." And Volvo's witness testified --
04-905 +++$+++ 32286 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Not other Volvo dealers.
04-905 +++$+++ 32287 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, other Volvo dealers.
04-905 +++$+++ 32288 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought the Volvo policy was, if you had two dealers competing for the same sale, they gave the same discount to each dealer.
04-905 +++$+++ 32289 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's not the competition. That's the question as whether there is discrimination. The question is, Do Volvo dealers compete against other Volvo dealers, in the first instance? And with respect to that, the testimony was absolutely clear, it's in the -- witnesses for Volvo -- are quoted in our brief at page 8 -- explicitly say, "We compete, on a daily basis, in the region and the district, Volvo dealer to Volvo dealer." Now, there's a separate --
04-905 +++$+++ 32290 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there's never -- but, in those situations, there's never two purchases, there's always one -- there's only one completed purchase.
04-905 +++$+++ 32291 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- again, there are lots of situations where there are two purchasers. Again, you go back to the -- to the four specific transactions that were identified. For the 102 sales, 55 percent of the sales between 1996 and 2000 involve -- I mean, 1998 -- involved direct-comparison sales, where we purchased from Volvo, and one of our competitors 200 miles down the road -- and on interstate highways, 200 miles down the road's the same as next door -- and we -- we purchased exactly the same product, and we got a significantly lower concession --
04-905 +++$+++ 32292 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, but --
04-905 +++$+++ 32293 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- under the circumstances.
04-905 +++$+++ 32294 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that was for a resale to -- that was for resale to different purchasers.
04-905 +++$+++ 32295 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To be sure, it was --
04-905 +++$+++ 32296 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Nobody's buying two --
04-905 +++$+++ 32297 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- for resale.
04-905 +++$+++ 32298 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- nobody's buying two trucks from two different purchasers.
04-905 +++$+++ 32299 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. Anymore than anybody's buying two cars from two different purchasers in the -- in the classic inventory situation.
04-905 +++$+++ 32300 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but it's very hard to compare those two sales, because they all depend upon the special features on the trucks that are ordered by the particular individual, and also how -- you know, how much of a hard bargain that individual is driving. I don't know how you can compare a sale to one -- one person with XYZ features on the truck with a sale to a totally different person with ABC features on the truck.
04-905 +++$+++ 32301 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, that was precisely the defense that Volvo made at trial. They put it to the jury, "Remember, it has to be like kind and quality. We are required to demonstrate that the truck that we are getting a 10 percent discount on and the truck that they're getting a 20 percent discount on is exactly the same like kind and quality of truck." And that was their defense. And our witness meticulously -- I'd commend the record to you if you want to read it -- but he meticulously examined each of those trucks and showed that, systematically, for 102 sales, they sold the exact same truck to a dealer down the road, with a significantly better price than the truck they sold to us, in order to implement the "Volvo Vision" and drive my client --
04-905 +++$+++ 32302 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ For resale --
04-905 +++$+++ 32303 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- out of the dealership business.
04-905 +++$+++ 32304 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- to a different purchaser, who may have been in a better position with regard to the negotiation than any of your customers were.
04-905 +++$+++ 32305 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, he -- but whatever that person's position was, vis-a-vis its customer, doesn't affect the relationship between Reeder-Simco and Volvo, and that individual and Volvo.
04-905 +++$+++ 32306 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is it --
04-905 +++$+++ 32307 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There, it has to be a level playing field.
04-905 +++$+++ 32308 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- why is it --
04-905 +++$+++ 32309 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is precisely what Robinson-Patman is about.
04-905 +++$+++ 32310 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- why is it unreasonable -- why does it violate the principle of Robinson-Patman, and why does it destroy competition, for Volvo to say, "We'll make whatever discount it takes to get the sale, and if this dealer needs a 20 percent discount for this sale, but this other fellow over here only needs a 10 percent discount to make that sale, we're going to have a differential discount"? Why -- I don't see why that harms competition.
04-905 +++$+++ 32311 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the -- it wouldn't necessarily, on an episodic basis. But what you have in this case is substantial price discrimination across time, which this Court held, under Morton Salt, triggers an inference of competitive injury.
04-905 +++$+++ 32312 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Phillips, the problem that I have with even accepting your theory is what the other side calls the "mix and match" quality of your evidence. That is, you say here's Reeder, disfavored, and here's someone else, favored. But it's not consistently the same someone else. And, for all we know, someone else could make a case saying, "We compare ourselves with Reeder, and we say, oh, there was that sale 7 months ago, where they got a whopping discount and we got a much smaller one." You're not -- you don't have the same favored customer. You're picking from a series of sales, and we don't know how manipulative this proof is. And we I mean - and we don't --
04-905 +++$+++ 32313 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I mean, putting aside the fact, Your Honor, that I think that that's essentially a jury question -- I mean, I do think both sides get to put on the evidence that shows that there's been discrimination and that there -- and then we know what the market consequences will be. But if you look at plaintiff's exhibit 104, which is in the appendix to the Court of Appeals at 577, and you look down that list, you will see that they are -- where they're specifically talking about Reeder-Simco, and it has -- and it satisfies its 28 percent of its overall objective in 1999; and then you go through the testimony of Reeder-Simco's co-owner, and he's -- identifies each of the four or five competing entities that were the beneficiaries of those -- of the price discrimination of those sales in the 102 sales that were the basis for liability; and their percentages for the objectives during the next -- during 1999 are 71 percent, 81 percent, 97 percent, 107 percent, 92 percent -- those are -- those are huge differentials.
04-905 +++$+++ 32314 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Phillips, when you lose --
04-905 +++$+++ 32315 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
04-905 +++$+++ 32316 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If I may. When you lose a sale, it's because Volvo didn't give you a big enough discount. It's not because they gave another Volvo dealer a bigger discount.
04-905 +++$+++ 32317 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's today, Mr. Chief Justice, to be sure. But tomorrow, when I go to the next dealer to -- go to the next purchaser, the reason I didn't get that sale was because I didn't have enough capital to have the same quality of salesperson in place to make that sale.
04-905 +++$+++ 32318 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, sure, but, I mean, that's -- I mean, long term -- of course, Volvo can terminate you, as a dealer, tomorrow. And --
04-905 +++$+++ 32319 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it can't. Under the contract --
04-905 +++$+++ 32320 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
04-905 +++$+++ 32321 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and under State -- Arkansas State law, it can't.
04-905 +++$+++ 32322 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- well, what -- but it -- under the Robinson-Patman Act, it can.
04-905 +++$+++ 32323 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As long as it doesn't discriminate on the basis of price --
04-905 +++$+++ 32324 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The classic --
04-905 +++$+++ 32325 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- you're right.
04-905 +++$+++ 32326 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- case that the Robinson-Patman Act is directed to is when you lose sales because they're giving bigger discounts to other sellers. And that's just not the case here.
04-905 +++$+++ 32327 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But it -- it's not just sales. It's always been lost profits, as well. And if we are paying more, we're losing money, vis-a-vis our competitors. And then every day after that, we're competing with our -- one arm tied behind our back because we have less money. And is there any reason to doubt that --
04-905 +++$+++ 32328 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But Volvo's interest may be in as -- making as much money off of sales this year, and they may not be terribly concerned about whether you, as a reseller, are making enough profit to last 3 years or 5 years.
04-905 +++$+++ 32329 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true. But we know from the record that Volvo's purpose in this enterprise was to eliminate 50 percent of its dealers --
04-905 +++$+++ 32330 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That -- that's a --
04-905 +++$+++ 32331 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and to do so by using price discrimination.
04-905 +++$+++ 32332 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that's a -- that's a broad Robinson-Patman principle you're arguing for, that a -- that a seller such as Volvo has to make sure that each of its distributors makes the same profit?
04-905 +++$+++ 32333 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, no. To be sure, no --
04-905 +++$+++ 32334 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if --
04-905 +++$+++ 32335 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of course not.
04-905 +++$+++ 32336 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- if it works its system in such a way that one of them is making less profit than another, it's liable?
04-905 +++$+++ 32337 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, there are -- there are two elements to this, Justice Scalia. You first have to demonstrate that there's discrimination. And the way you demonstrate anticompetitive discrimination is to show that there is a consistent pattern. It has to be substantial discrimination over a substantial period of time. If we're trying to cut deals on a daily basis, presumably today you got a deal with a customer, and I'll give you a 10 percent, and then the Chief Justice got a deal tomorrow, and I may give him 12 percent, but, 2 weeks down the line, the situations will likely be flipped out. You're not going to find, where you have 55 percent of your sales, 102 sales involving $250,000-plus of sales differentials to be the basis for the claim that there is price discrimination in the first instance, Justice Scalia.
04-905 +++$+++ 32338 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you have any instance where you made an offer to a buyer assuming that you'd get the kind of a break that Volvo gives to other dealers -- all right? -- you made that offer, and the buyer says, "Yes, I'll take it at that price" -- and then you go to Volvo, and they won't give you that?
04-905 +++$+++ 32339 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, sure. We had thousands of those examples.
04-905 +++$+++ 32340 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where you made the offer to the buyer --
04-905 +++$+++ 32341 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-905 +++$+++ 32342 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and the buyer had agreed to buy it --
04-905 +++$+++ 32343 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure.
04-905 +++$+++ 32344 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and you --
04-905 +++$+++ 32345 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Where we -- well, I -- had agreed to buy it. We had a -- clearly, there was an understanding. Our sales person thought that, "If I can get this discount at this rate, I can cut this deal," went to -- went to Volvo, asked for that rate, Volvo said no. Didn't get the deal.
04-905 +++$+++ 32346 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is the Robinson --
04-905 +++$+++ 32347 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That happened literally more than a thousand times. The testimony on that is rampant. And the reason we don't make more of that, Justice Scalia, in this particular case, is because the jury verdict is based on actual sales. There is as very clear fidelity to the two-purchaser rule in the way the jury verdict was rendered and the way the Court of Appeals affirmed it. That said, I -- a lot of this discussion about, you know: Is that two-purchaser rule, in its most strict version, the right way to interpret the Robinson-Patman Act? Our view is, it's not. But we don't have to get there --
04-905 +++$+++ 32348 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If it's not, the -- the reason -- I thought, for about 60 years, the words "different purchasers of commodities," it forbids any person to discriminate in price between different purchasers of commodities. Now, you have to refer -- as soon as I ask the question, or start getting into the language, I forget the statute, and it's so complicated that I'm giving you time to think about it -- [Laughter.]
04-905 +++$+++ 32349 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and to think of those words in your mind.
04-905 +++$+++ 32350 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right.
04-905 +++$+++ 32351 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's a -- it's forbidden to discriminate in price between different purchasers of commodities.
04-905 +++$+++ 32352 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-905 +++$+++ 32353 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, I had always thought -- and I think the Courts' decisions bear that out, or the absence of decisions -- that the words "discriminate in price between different purchasers of commodities" meant you can't discriminate in price between different purchasers of the item, or items, in respect to which the discrimination of price exists. That's what I thought it meant. And it seems to me that was the general understanding in the antitrust bar, that was the general understanding of the courts. And either it's not permissible to give such an interpretation -- I don't know why it wouldn't be; it's literal -- or there's a good policy reason for not doing it in respect to the policy. And in respect to the policy, what worries me about the broader interpretation is suddenly doing what Volvo -- forbidding Volvo from doing what it probably wants to do here. If it wants to get rid of its dealers, it's because it wants to compete better with other brands. And that means lower prices for consumers, though individual dealers might be hurt. So, if I'm trying to read that law consistent with 60 years of history, and the basic purposes of the antitrust law, I guess I would -- might favor your opponents in this. I'm exposing my entire line of thought. I'm trying to protect interbrand competition, why -- while, at the same time, not being -- not being unfair to the purposes of Robinson-Patman; and, therefore, I'm reading this fairly literally, as it's been read. So, what's your response?
04-905 +++$+++ 32354 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I guess the difficulty I have, Justice Breyer, is understanding why you don't think we are -- what we have here is precisely different purchasers of commodities.
04-905 +++$+++ 32355 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I said -- I said they -- in -- the problem for you is that, in respect to discrimination between the item, or items, the -- in respect to -- the purchase of the item, or items, in respect to which the discrimination existed. Insofar as there were items, or items, purchased, there is no discrimination. At least there is no discrimination that -- in terms of the injury of the statute, creates that kind of injury. In respect to instances where you have a strong case of the right kind of injury, there was no purchase, defined as I just defined it.
04-905 +++$+++ 32356 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I apologize for being --
04-905 +++$+++ 32357 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, let me deal --
04-905 +++$+++ 32358 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- dense, Justice Breyer. [Laughter.]
04-905 +++$+++ 32359 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- with the latter. I will say --
04-905 +++$+++ 32360 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let --
04-905 +++$+++ 32361 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- there are some items where your client bought the truck.
04-905 +++$+++ 32362 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely.
04-905 +++$+++ 32363 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When he bought the truck, he got the sale, although he earned less profit. Put those to the side.
04-905 +++$+++ 32364 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's difficult --
04-905 +++$+++ 32365 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's focus --
04-905 +++$+++ 32366 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- for me to do that, Justice Breyer --
04-905 +++$+++ 32367 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you are.
04-905 +++$+++ 32368 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but I understand.
04-905 +++$+++ 32369 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's focus -- [Laughter.]
04-905 +++$+++ 32370 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- on the items -- let's focus on the items where he didn't get the sale.
04-905 +++$+++ 32371 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-905 +++$+++ 32372 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When he didn't get the sale, there was no purchase of the item, or items, from the manufacturer in respect to which the discrimination existed.
04-905 +++$+++ 32373 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-905 +++$+++ 32374 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay? Now, it's that second class --
04-905 +++$+++ 32375 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's what you want me to focus on.
04-905 +++$+++ 32376 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
04-905 +++$+++ 32377 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's fine. As long as you accept that the first class is a distinct one, and, as far as I'm concerned --
04-905 +++$+++ 32378 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course it's distinct. Of course --
04-905 +++$+++ 32379 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but -- and it totally makes my case, as far as I'm concerned.
04-905 +++$+++ 32380 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, well, you have a --
04-905 +++$+++ 32381 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I realize you may disagree with me on that, but -- [Laughter.]
04-905 +++$+++ 32382 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- we'll start there. But I just want to be clear that that's a completely separate analysis. Then, it seems to me, what you -- what you have to go back to is the kind of analysis that Justice Stevens was saying, which is that when you're talking about different purchasers of commodities, there is no reason to be so focused on the -- on the identical transaction, rather than recognizing, particularly in the context of a dealership arrangement where you're -- have continuous relationships between the -- between the seller -- the manufacturer and the dealer, where you have this enormous disadvantage to the dealer, who has already sunk, you know, huge amounts of money into this and is in -- essentially at the whim of what is now a monopoly seller -- a monopsony -- a monopoly seller. And, under those circumstances, it makes perfect sense to say, "Look, if I'm going to systematically keep getting 20 -- 10 percent discounts, where my competitor, a hundred miles away, is always getting 20 percent discounts," that's a situation that this statute seems clearly aimed at dealing with.
04-905 +++$+++ 32383 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're not at the whim of a monopoly seller. You mentioned to me just a little while ago, you've got a contract with them. You can put in that contract whatever you want about pricing.
04-905 +++$+++ 32384 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I have a 5-year contract that's already in place, so, at least for the 5 years, I'm pretty much at the whim of my -- unless I want to breach the contract, which --
04-905 +++$+++ 32385 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You should have written a better contract.
04-905 +++$+++ 32386 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, unfortunately -- [Laughter.]
04-905 +++$+++ 32387 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I didn't write that contract, Justice Scalia.
04-905 +++$+++ 32388 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But on a misinterpretation of Robinson-Patman. [Laughter.]
04-905 +++$+++ 32389 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you do with the policy argument -- at, sort of, the level of the forest, rather than the trees -- that the antitrust laws are designed to prefer competition in interbrand -- in the interbrand market, rather than intrabrand, and that, therefore, to the extent there's ambiguity, that supports an interpretation that allows the manufacturer to strengthen his interbrand position, as opposed to protect the intrabrand position?
04-905 +++$+++ 32390 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think to make that argument you essentially have to make mush out of the last half of the Robinson-Patman Act, because it's not injury in any line of commerce, which is where I think you would be talking about interbrand problems. It's problems with respect to customers of either of them. And it's quite clear, and it's been clear since 1948 in Justice Black's opinion for the Court in Morton Salt, that this is designed to recognize that when you harm an intrabrand competitor, that that's the kind of injury to competition that this statute was aimed at. And this Court reaffirmed that both in the 1980s, reaffirmed it again in 1990, in Texaco. And it's -- and notwithstanding some effort to ask the Court to revisit Morton Salt at this point, it seems to me that that principle ought to be completely settled at this stage. If there's to be any fix there, it ought to be a fix that's offered up by Congress. To go back to, then, your point, Justice Scalia, I told you, first, you have this discrimination in price, you have to show that it's substantial, lasts for a substantial period of time, you get the Morton Salt inference. You -- then we still have to show, under section 4 of the Clayton Act, that we have actual injury to our business and property. And in this context, it seems to me, the evidence is absolutely overwhelming, because you have a situation where, in 1995, we are next-to-none dealer for Volvo. In 1995, we're selling 66 cars, we're making $165,000. Volvo implements its "Volvo Vision," the purpose of which is to drive my client out of this dealership. It engages in systematic discrimination, both with respect to unquestionable purchases on both sides and, candidly, more broadly than that. And the effect of that, at the end of the day, is that our sales go from 65 to 34 to 18 to 8. Our gross profits dropped to $26,327. You compare that to the kind of evidence this Court looked at in the -- in the J. Truett Payne case, where it wasn't clear that there was really any discrimination involved there, there was no drop in the market, there was no evidence of any diversion of any sales. And, even in that context, this Court was unwilling to say that the Fifth Circuit's decision holding that the evidence was flat-out inconsistent -- or inadequate to sustain the verdict, was overturned, had to be sent back. I submit to you, the evidence in this case is vastly stronger. The jury reached the result that it did. That result was approved in the face of a JMOL --
04-905 +++$+++ 32391 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, let me ask you --
04-905 +++$+++ 32392 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and affirmed --
04-905 +++$+++ 32393 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- this question.
04-905 +++$+++ 32394 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- on appeal.
04-905 +++$+++ 32395 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Supposing you did have a contract, such as Justice Scalia suggests, in which the manufacturer agreed that, at any given point of time, you will get just as favorable a concession as any other Volvo dealer could get at the same time. If there were such a contract in place, would the evidence show that it was breached?
04-905 +++$+++ 32396 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In this case, yes, it would have been. We have evidence that they clearly didn't. Because they have a policy of trying to accomplish the same thing, and didn't achieve that in this particular case, in at least two instances.
04-905 +++$+++ 32397 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you did -- you did get a judgment on the -- whatever it was -- the State Franchises Act, and that is not being contested --
04-905 +++$+++ 32398 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct --
04-905 +++$+++ 32399 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- on appeal.
04-905 +++$+++ 32400 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Justice Ginsburg.
04-905 +++$+++ 32401 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So that if -- the question is whether fair franchising practices -- were there unfair practices? You won a verdict that there was a violation of the Fairness in Franchising Act.
04-905 +++$+++ 32402 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. We clearly aren't raising the State law issue here. Our argument here is that the Robinson-Patman --
04-905 +++$+++ 32403 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you won on it.
04-905 +++$+++ 32404 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- violation --
04-905 +++$+++ 32405 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You won on it. But the difference is that that doesn't give you treble damages.
04-905 +++$+++ 32406 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it also has a different statute of limitations, Justice Ginsburg. There are a lot of differences between the State law and the Federal claim that we're --
04-905 +++$+++ 32407 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On --
04-905 +++$+++ 32408 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that we're pursuing here.
04-905 +++$+++ 32409 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- limitations, one of the aspects of this mismatches -- that in one case you went back as much as -- there was a 7-month differential. Is there a timeframe, if we adopt your theory, about -- in which you can engage in this comparison?
04-905 +++$+++ 32410 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, of course. You require the jury to make a determination that it's within a reasonable period of time and that it's in a reasonable adjustment. There is no challenge to the jury instruction on whether or not the comparisons that were made were legitimate in any way. So, that's -- you know, there's no question that this Court can certainly establish a rule that says certain timeframes are either, per se, good or bad, but that issue is clearly not raised by the way the jury -- this jury was instructed, because there was no challenge to the instruction, in this case.
04-905 +++$+++ 32411 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And it's also not disputed now that these were goods of like grade and quality.
04-905 +++$+++ 32412 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not disputed that these are goods of like grade and quality, Your Honor.
04-905 +++$+++ 32413 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Phillips, how many States have these fair franchising laws? Are there any States that don't?
04-905 +++$+++ 32414 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, I'm sure there are some States that don't. I think there are about 30-some States that do, as I recall.
04-905 +++$+++ 32415 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your argument that focuses on the dealer's profits, I guess, doesn't depend upon you losing those sales at all. I mean, if you -- you had made all the sales, but you still thought you should have gotten a bigger discount that would have allowed you to make more money, you'd have the same argument, right?
04-905 +++$+++ 32416 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think if we had gotten all of those sales the first time around, we would have ended up with the profits that would have allowed us to make the sales --
04-905 +++$+++ 32417 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, no, you just go back and look again, 7 months or a year down the road, and if somebody else was getting a bigger discount -- if you had gotten the bigger discount, you would have made more money on those sales, and then you would have had more capital, and you'd be able to be a dealer for a longer time.
04-905 +++$+++ 32418 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think, at the end of the day, what we're talking about is essentially a jury question: Were we entitled to say these were lost profits, the margins were reduced, we didn't have as much money? That interfered with our ability to make sales in the future period, because you have the complete before-and-after documented history in this particular case.
04-905 +++$+++ 32419 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So --
04-905 +++$+++ 32420 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It seems to me that's a jury question. And the jury found in our favor.
04-905 +++$+++ 32421 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wouldn't --
04-905 +++$+++ 32422 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You suggest something very -- to me, quite interesting, but it would be quite a departure, I think, from prior law that --
04-905 +++$+++ 32423 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I hope not.
04-905 +++$+++ 32424 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you want to go look at this, you know, you say, all right, here's -- we should be realistic about it. We're going to be realistic. Realistic, they -- we're only now looking at the cases where they undoubtedly bought the item, but the profit was lower. There's no purchaser problem.
04-905 +++$+++ 32425 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-905 +++$+++ 32426 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they got a lower profit. And I think, there, the mine-run of cases is against you that that counts as an injury.
04-905 +++$+++ 32427 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That, by itself, wouldn't count as an injury.
04-905 +++$+++ 32428 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. Yes, but it's -- you know, it shows that they're going to be hurt, that they may be driven out of business.
04-905 +++$+++ 32429 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-905 +++$+++ 32430 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Indeed, the market in -- the dealership market, whatever -- if that's a separate market, which it might be -- becomes more concentrated, and the result of -- you know, I could make a -- tell a little story there that would be quite consistent with the purposes of the antitrust law. So we follow that approach in this case and say goodbye to Morton Salt, because Morton Salt, after all, was a case that was quite formalistic. It didn't really look to the injury to competition in a market. It had a formalistic slogan that would, in fact, be a proxy for that.
04-905 +++$+++ 32431 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-905 +++$+++ 32432 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, what do you think of that? We follow your -- we follow your advice, we say, "Okay, we're going to be very realistic in the future. Forget the presumptions. And, court, look to see whether competition, in the sense of increased concentration through people going out of business, will lead to higher prices with the ordinary antitrust proxies there." What about that? I mean, I don't know if you -- you know, I --
04-905 +++$+++ 32433 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm not here to --
04-905 +++$+++ 32434 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I'm being a little --
04-905 +++$+++ 32435 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I'm not here, necessarily, as an advocate for overturning Morton Salt, for obvious reasons. I think the answer to your question is, under Morton Salt we clearly win, because we -- we probably didn't need to show as much as we did, in terms of the impact of this particular discrimination on our ability to compete in the future. I think we were entitled to a straight inference of that, in terms of the substantial -- or reasonable possibility of injury in the first instance. But, beyond that, I -- you know, you could certainly hold, in this case, that Reeder-Simco has made more than enough of a case in order to recover under the Robinson-Patman Act. But --
04-905 +++$+++ 32436 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, in fact --
04-905 +++$+++ 32437 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- we, neverthe- -- I'm sorry, Justice --
04-905 +++$+++ 32438 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you almost have to show that. But the evidence of the head-to-head competition, it seems to me, too insubstantial to support liability here. Would you agree? I -- and I --
04-905 +++$+++ 32439 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ One --
04-905 +++$+++ 32440 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I -- your opposing counsel says you almost concede that, right?
04-905 +++$+++ 32441 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we -- I mean, we don't rely on it. And part of this -- part of the problem is that it's not -- that head-to-head item wasn't part of the jury instruction. So, that -- we -- I can't rely on it, in terms of supporting it. If you ask me, outside of the context of this case, would I defend that argument? I probably would try to defend the argument. But it's obviously much tougher when you only have one head-to-head. It's completely different when you're talking about 102 sales-to-sales comparisons over years, with significant differentials, that clearly caused the kind of injury we have here. If there are no further questions, Your Honors, I'd give you back the rest of my time. Thank you.
04-905 +++$+++ 32442 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Phillips. Mr. Englert, you have four minutes remaining.
04-905 +++$+++ 32444 +++$+++ FALSE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. The heart of the theory of this case came up in colloquy between the Chief Justice and Mr. Phillips. The Chief Justice pointed out that Reeder doesn't lose a sale because of the concession that Volvo gives to the other dealer, which makes this quite different from every other Robinson-Patman case. Mr. Phillips' response was, "That's today, Your Honor. But our future ability to compete is impaired." Well, that's very similar to the evidence this Court referred to as "weak" in J. Truett Payne. The Court didn't go all the way and say that that wasn't enough to give rise to damages under section 4 of the Clayton Act, but the -- but all nine Justices agreed that such evidence was very weak. The Fifth Circuit, on remand, threw out the jury verdict, a case that arose in the same posture as this case. And there is not -- as we said in the reply brief, Reeder is complaining about price, not price discrimination. Now, let me say a word or two about the record. Mr. Phillips says the "Volvo Vision" was to get rid of dealers, and to do so through price discrimination. That is a leap of faith that Reeder asked the jury to make at trial, but there is not an iota of evidence connecting Volvo's interest in making its dealer network smaller and more efficient to price discrimination. That's entirely a leap of faith. Mr. Phillips says an inference should be made. That's not the kind of inference we usually allow juries to draw in antitrust cases without some evidence. The evidence was actually that Reeder's biggest customer, New Hi-Way, which was 82 percent of its business, was bought by a Memphis company. So, just to point to Reeder's before-and-after sales is really terribly misleading, in terms of causation here between so-called discrimination and the decline in Reeder's business. The so-called 102 sales are four transactions. There's one 77-truck transaction to New Hi-Way before it was bought by the Memphis company, and 25 other trucks in the other three transactions. They are all cases in which all Reeder did was take its own completed sales and compare them to sales by some other dealer in some other State. Reeder wasn't competing for the sale to that dealer's customer. That customer wasn't competing for the sale to Reeder's customer. So it is, as Justice Ginsburg's questions pointed out, completely a mix-and-match approach. And Bill Heck conceded that there were times when Reeder got better concessions than other dealers. If you have a company that doesn't engage in uniform pricing, as Volvo does not, it's not going to be hard for any plaintiff, whether it's Reeder or Reeder's competitor, to come up with instances in which it was the so-called disfavored dealer if it is admissible to compare transactions to completely unrelated transactions, which is what the proof at trial in this case was. Thank you.
04-905 +++$+++ 32445 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you --
04-905 +++$+++ 32446 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let me ask you, if you have a minute left, is your central point that there was no proof of damages or no proof of injury to competition?
04-905 +++$+++ 32447 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Both, Your Honor. They need both. They need --
04-905 +++$+++ 32448 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I know they --
04-905 +++$+++ 32449 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In 2(a) --
04-905 +++$+++ 32450 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- need both, but which is your principal argument?
04-905 +++$+++ 32451 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My principal argument is under 2(a), but if I fail on that, I think they fail under Clayton Act, section 4, as well. And --
04-905 +++$+++ 32452 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Your principal argument, that there was no injury to competition.
04-905 +++$+++ 32453 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That was the effect of such discrimination, yes.
04-905 +++$+++ 32454 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay. Thank you.
04-905 +++$+++ 32455 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. The case is submitted.
04-928 +++$+++ 32460 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first this morning in Oregon versus Guzek. Ms. Williams.
04-928 +++$+++ 32462 +++$+++ FALSE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The eight amendment requires that a sentencing jury in a capital case must consider mitigation, which this Court consistently has defined as related to a defendant's background, character, or the circumstances of the offense. The Oregon Supreme Court in this case has broadly construed circumstances of the offense to include evidence that is inconsistent with the defendant's guilt. That holding is not constitutionally compelled and does not further the purpose of having the sentencing jury consider mitigation.
04-928 +++$+++ 32463 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can you --
04-928 +++$+++ 32464 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Is it --
04-928 +++$+++ 32465 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can you --
04-928 +++$+++ 32466 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ -- possible that the Supreme Court of Oregon misapprehended some of the facts in this case?
04-928 +++$+++ 32467 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice O'Connor, it is possible that the Supreme Court was not aware that defendant's mother had testified in the --
04-928 +++$+++ 32468 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Right.
04-928 +++$+++ 32469 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- guilt phase, and that's because defendant did not raise that issue in the trial court, did not move to have her alibi testimony admitted under the State statute that would have caused the Court to address her prior --
04-928 +++$+++ 32470 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Do we --
04-928 +++$+++ 32471 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- testimony.
04-928 +++$+++ 32472 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ -- need to vacate the judgment and remand for that, or --
04-928 +++$+++ 32473 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No --
04-928 +++$+++ 32474 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ -- do we just go ahead and --
04-928 +++$+++ 32475 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice O'Connor, I don't believe that there needs to be any change in the posture of the case in order -- in order for the Court to address the Federal issue, and that's because the significance of the Oregon Supreme Court ruling doesn't turn on whether someone's testimony was admitted in the guilt phase, or not.
04-928 +++$+++ 32476 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Well, under Oregon law, is it possible that some of the mother's testimony would be otherwise admissible at the penalty stage?
04-928 +++$+++ 32477 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under Oregon law, under the majority's holding in this case and the way they dealt with the grandfather's prior testimony, on remand defendant could have the mother's transcript from the guilt phase read, but what would be different about it under the Oregon Supreme Court holding, and what we're asking the Court to address, is what they can do with that alibi testimony, no matter what form it comes in. And that's the significant part of the Supreme Court holding.
04-928 +++$+++ 32478 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I -- may -- I want you, perhaps, to elaborate on that, as well. And perhaps the Respondent is the one to answer this question. Do you understand that they, on remand, if they prevail in this case, would want to introduce the mother's live testimony?
04-928 +++$+++ 32479 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I am not sure. Under the --
04-928 +++$+++ 32480 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We're not sure --
04-928 +++$+++ 32481 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Oregon Supreme --
04-928 +++$+++ 32482 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- all right.
04-928 +++$+++ 32483 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Court holding, they would certainly be free to introduce her live testimony. It's very clear from the Oregon Supreme Court decision that any alibi evidence comes in, and that's not limited to evidence that was presented in the guilt phase, or even witnesses who had been in the guilt phase. And -- but coming back to what the court's holding focuses on is how that alibi evidence can be used in the remanded proceeding. And not only does it come in, and the primary statute on -- that they dealt with for the grandfather's testimony is really a statute that deals with admissibility of evidence -- prevents the parties from having to go through making foundations and other showings in order to get evidence admitted. But, under the Oregon Supreme Court holding, defense counsel can argue, based on that evidence, that the jury should consider the possibility that defendant is innocent, as a mitigating factor in determining the sentence.
04-928 +++$+++ 32484 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, can't you under -- look, first imagine that they don't want to introduce one word from the mother's mouth that isn't already in that transcript. Imagine that's the circumstance. If that's the circumstance, then I should think there is no doubt, under Oregon law, that those words in the transcript are admissible. And I believe that under Oregon law -- and I'm not certain -- that, an ordinary case, a death-eligible person does have the right to argue in the sentencing proceeding. Think back over that trial jury and you will see that there are doubts as to whether this man is guilty or not. Am I right -- am I right on the first part? Am I right on the second part?
04-928 +++$+++ 32485 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, you are correct on the first part, but not on the second part, and that's because Oregon Supreme Court unanimously has construed Oregon's law on mitigation to say that what the Oregon Legislature intended was to have as mitigation only those pieces that are required by the eighth amendment.
04-928 +++$+++ 32486 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. In other words, prior to this case, in the State of Oregon, where there was a death case -- maybe there weren't very many, but where there was one, under Oregon law -- we have the trial; immediately thereafter, the sentencing, and the lawyer had no right to argue, under Oregon law. Think back about your certainty as to whether this individual is guilty.
04-928 +++$+++ 32487 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be correct, Your Honor, that --
04-928 +++$+++ 32488 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, all right.
04-928 +++$+++ 32489 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- unless the eighth amendment --
04-928 +++$+++ 32490 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And did the court say, here -- the Oregon court, in this case -- one, You can introduce evidence, which it seems to have been mistaken about, about not being there, but that, second, the Federal Constitution gives you the right to argue the residual doubt?
04-928 +++$+++ 32491 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. And that's most clear, from the dissent, as characterizing the question that the Court is addressing. And the Oregon Supreme Court opinion is in the -- excuse me -- the appendix to the cert petition. And at page 68 of the appendix from the dissent, Justice Gillette writes, "The issue in this case is whether under the emphasized wording of that statutorily required jury instruction," referring to the mitigation question, "defendant was entitled to have the jury consider the evidence that he proffered. The majority says he was. I disagree."
04-928 +++$+++ 32492 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ah. "Consider the evidence" is different from "making an argument about the evidence." And what I didn't see in the -- Oregon's majority opinion, is a statement that not only can this evidence be introduced -- because, after all, in a normal case, the jury's heard it --
04-928 +++$+++ 32493 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-928 +++$+++ 32494 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's the same jury. But I didn't see, anywhere, where they addressed the question about what kind of argument the defense had the right to make at the sentencing trial in respect to the residual doubt that they might have from what they just heard. Can you point, in that opinion, to where they made that statement that you just said they made about the argument?
04-928 +++$+++ 32495 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ About the argument. Where I read -- no, I cannot point to specific language in the majority opinion that says "and defense counsel gets to make an argument based on this, and the jury must consider that." That comes from this Court's case law of how mitigating evidence must be treated once it is -- -
04-928 +++$+++ 32496 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You want --
04-928 +++$+++ 32497 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- required to be --
04-928 +++$+++ 32498 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You want us to hold that. You want us to say that a defense counsel can be admonished by the judge not to make the argument that, "Ladies and gentlemen, this is the final penalty. My client claims he's innocent. If, in 20 years, it turns out that there is evidence exonerating him, it will be too late. I want you to consider that and give him life." You can't make that argument.
04-928 +++$+++ 32499 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, I -- our position is that the eighth amendment does not require that as a mitigating factor, that that is not one of the circumstances of the offense, certainly not -- it doesn't go to the defendant's character or background.
04-928 +++$+++ 32500 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Williams, I don't -- I don't understand all of this discussion about what the -- whether the State law would have produced the same result, or not. We have never held, have we, that, where a State Supreme Court opinion clearly rests on a Federal ground, a Federal constitutional ground, we do not have jurisdiction if there is a possible State ground that would have left it -- led to the same result? Have we ever held that?
04-928 +++$+++ 32501 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Scalia. In fact -- -
04-928 +++$+++ 32502 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And we've said just the opposite, haven't we?
04-928 +++$+++ 32503 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Scalia.
04-928 +++$+++ 32504 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that isn't the thrust of my question, of course. The thrust of my question is that if, in fact, this evidence from the mother comes in under State law, it comes in under State law, because -- I have the cite; you know the --
04-928 +++$+++ 32505 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-928 +++$+++ 32506 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- section I'm referring to. If it comes in under State law, and they're not trying to prove anything else, and the holding of the Oregon Supreme Court is about what evidence is admissible, and not about what arguments to be made, I don't see what reason we would have to reach an issue that isn't in the case.
04-928 +++$+++ 32507 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And, Justice Breyer, I think the primary reason that the State is concerned with it is because of the broad holding that the Oregon Supreme Court has announced under -- about what eight amendment requires. When you combine that with what this Court has said about what that means when evidence is mitigating evidence, then I think a necessary corollary of the Oregon Supreme Court holding is that defense counsel does get to make that argument, and that the jury must --
04-928 +++$+++ 32508 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there's no --
04-928 +++$+++ 32509 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- be permitted --
04-928 +++$+++ 32510 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- reason that the defendant couldn't introduce other evidence in his resentencing trial, is there?
04-928 +++$+++ 32511 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under the --
04-928 +++$+++ 32512 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, if he has other -- he says, "I have other witnesses that go to the residual-doubt question," and I would -- you know, on retrial, if he prevails here, presumably he would be entitled to put in that evidence, as well.
04-928 +++$+++ 32513 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Mr. Chief Justice. The Oregon Supreme Court's conclusion is very broad, that any alibi evidence comes in, and, as the dissent notes, that it also would not be limited simply to alibi evidence, but any evidence that is inconsistent with the guilt verdict in this case that would form a basis for arguing that doubt about the defendant's guilt should be a factor that the jury considers in responding to the mitigation question that --
04-928 +++$+++ 32514 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let me --
04-928 +++$+++ 32515 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what do we do with the case --
04-928 +++$+++ 32516 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- ask you --
04-928 +++$+++ 32517 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- if your opponent acknowledges that -- or stipulates, in effect, that he's not going to put anything in except what's already in the transcript? Then do we have a case?
04-928 +++$+++ 32518 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think you still have a case, Justice Stevens --
04-928 +++$+++ 32519 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it --
04-928 +++$+++ 32520 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- because --
04-928 +++$+++ 32521 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- about the right to argue? Is that what it is?
04-928 +++$+++ 32522 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's about the right to argue and what the jury is told to do with that. And it's also that the State is going to have to live with this decision in other capital cases, and other capital defendants --
04-928 +++$+++ 32523 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. But our --
04-928 +++$+++ 32524 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- may not be willing to --
04-928 +++$+++ 32525 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- jurisdiction is limited to reviewing a final judgment in this case.
04-928 +++$+++ 32526 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-928 +++$+++ 32527 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We can't give an advisory opinion which would tell you what to do in other cases, which -- if that's all it does.
04-928 +++$+++ 32528 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I do not believe that a party can force the Court into that position by stipulating that, although the State Supreme Court holding permits it --
04-928 +++$+++ 32529 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But would they're --
04-928 +++$+++ 32530 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to do much more --
04-928 +++$+++ 32531 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- they would be giving up the right that you claim you don't want them to have.
04-928 +++$+++ 32532 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But they would give it up in a way that would basically lock the State into a box. We couldn't get --
04-928 +++$+++ 32533 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ For other cases --
04-928 +++$+++ 32534 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- review here, we couldn't get --
04-928 +++$+++ 32535 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- but not for this case.
04-928 +++$+++ 32536 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- review. Not for this case --
04-928 +++$+++ 32537 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-928 +++$+++ 32538 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's correct.
04-928 +++$+++ 32539 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's why I'm concerned that perhaps we're being confronted with a request for an advisory opinion. I don't know. Maybe they haven't categorically agreed to what -- they may be going -- willing to say that they aren't going to put anything else in. I don't really know that yet.
04-928 +++$+++ 32540 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I think their stipulation would have to have two parts -- one, that they wouldn't put anything else in that wasn't presented in the guilt phase; and, two, that they wouldn't argue that, based on that evidence, the jury should consider doubts about the defendant's guilt in deciding what the appropriate sentence is.
04-928 +++$+++ 32541 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We may -- we may not have held they have a constitutional right to make that argument, but do you -- do you think that State -- that you did -- you don't think they could even make the argument as a matter of State procedure or anything at all?
04-928 +++$+++ 32542 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not on the mitigation question, Your Honor. And that's because of the way the Oregon Supreme Court has construed the mitigation question, and has construed it to mean that only that which the eighth amendment requires is to be presented to the jury. The Legislature adopted that provision in response to this Court's mitigation case law, and that's what they were intending to implement, and nothing more than that. I think States are free to do more, but Oregon has not, as a matter of how the Oregon Supreme Court has --
04-928 +++$+++ 32543 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why is --
04-928 +++$+++ 32544 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- construed the statute --
04-928 +++$+++ 32545 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about Oregon revised stat 163.150? It says, "In a capital sentencing proceeding, the court shall instruct the jury that all evidence previously offered and received may be considered for purposes of the sentencing hearing." Now, that's Oregon law. It's long been there. What possible reason could Oregon have for having that provision, which is, "Jury, you shall consider all the evidence you just heard at the guilt phase of the trial"? What reason could that be? How is it supposed to be relevant, "all evidence," unless it's relevant to the question of whether there is doubt?
04-928 +++$+++ 32546 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, I'd point you to the -- an earlier part of that same section of the statute that says, "Evidence may -- in the sentencing proceeding, evidence may be presented as to any matter that the court deems relevant to sentence." And their --
04-928 +++$+++ 32547 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that's a different provision. I'm now thinking of the "normal case," where you hear the guilt phase, and now we're in the sentencing phase, and it says here, under Oregon law, "Judge, tell the jury that everything they previously heard at the guilt phase they may consider for purposes of what sentence they should impose." I just wonder what that sentence is doing there in Oregon law, unless the jury is supposed to think about whether this guy's really -- "I'm completely certain he's guilty."
04-928 +++$+++ 32548 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There -- it does serve a different purpose, Your Honor, and that is that -- when you read the entire section, what it -- what it does is, it says that, first of all, parties may present additional evidence, if it's relevant. The -- they cannot present repetitive, or cumulative, evidence that had been presented earlier. And then, the court's supposed to inform that jury that what had come in the guilt phase may be considered in the penalty phase. And so -- and we've had the --
04-928 +++$+++ 32549 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I suppose that if that provision weren't there, the court would have to decide, item-of-evidence by item-of-evidence, which pieces, that the jury has already heard, were relevant to the penalty, and not to the guilt. Whereas, by just allowing everything in, but just telling the jury, "You only consider it insofar as it goes to the penalty, and not to the guilt," we -- the court does not have to enter into that item-by-item discrimination.
04-928 +++$+++ 32550 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, what it does is, it allows the jury to know that just because something hasn't been re-presented to them in the penalty phase, but came in, in the guilt phase, it's open for their consideration.
04-928 +++$+++ 32551 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Without any clue --
04-928 +++$+++ 32552 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What it doesn't do --
04-928 +++$+++ 32553 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- without any clue whether there's a relevance test? I mean, here we're talking about alibi evidence. If the determination of guilt is final, then alibi is irrelevant at the penalty stage. That's why I found that statute so puzzling, that the jury doesn't have a clue. They're told, "Everything from the guilt phase comes in, you can consider," but it doesn't sort out, doesn't even tell them, relevance.
04-928 +++$+++ 32554 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And, Justice Ginsburg, other jury instructions will inform the jury how to use what evidence. And this does not mean that evidence that has been presented is relevant for any purpose that anybody wants to put it to in the guilt phase.
04-928 +++$+++ 32555 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That isn't the basis on which the court decided this case, is it?
04-928 +++$+++ 32556 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, sir.
04-928 +++$+++ 32557 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What we're saying here is that this is a possible basis on which the Oregon Supreme Court might have decided this case. They did not decide it on that case -- on that ground. They decided that the jury has to be able to consider doubt, not because of that provision of the statute, but because of the eighth amendment. And --
04-928 +++$+++ 32558 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
04-928 +++$+++ 32559 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And --
04-928 +++$+++ 32560 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, I wasn't suggesting anything other than what Justice Scalia said, but I was just curious about this statute that tells the jury, "You can consider everything," and gives them no guidance, because some of it might be quite inappropriate for them to consider.
04-928 +++$+++ 32561 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the guidance does come from the other instructions that tell the jury what the specific questions are that they must answer in the penalty phase, and what they take into account in answering those questions.
04-928 +++$+++ 32562 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But --
04-928 +++$+++ 32563 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What has our constitutional law regarding the requirement of allowing the jury to consider all mitigating factors -- the requirement that they have to be allowed to be take into account of that -- what guidance has that provided? Has our constitutional law said what constitutes a mitigating factor?
04-928 +++$+++ 32564 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In -- it has. And I believe that in Franklin versus Lynaugh, this Court came very close to deciding this question, that residual doubt is not one of those mitigating factors.
04-928 +++$+++ 32565 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Apart from that, apart from the fact of whether the person's guilty or not, have we specified what factors the jury can take into account by way of mitigation?
04-928 +++$+++ 32566 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are some factors that the Court has described as being required as appropriate for mitigation. So, age, the mental state of the individual, the --
04-928 +++$+++ 32567 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Don't you think that if a State listed specific factors that could be taken into account, and no others, that there would be considerable doubt whether this Court would allow such a statute to stand?
04-928 +++$+++ 32568 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think certainly with respect to the background and character of the defendant, but the question here would be a fairly limited restriction to say that circumstances of the offense presume that the offense has occurred and that the defendant is guilty; and so, evidence inconsistent with that guilt is not a circumstance of the offense. And I'd like to reserve time for rebuttal.
04-928 +++$+++ 32569 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Ms. Williams. Mr. Shanmugam.
04-928 +++$+++ 32571 +++$+++ FALSE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: It does not constitute cruel and unusual punishment to prohibit a capital defendant from relitigating his guilt at sentencing. Contrary to the reasoning --
04-928 +++$+++ 32572 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you have any view on whether this question is properly before us, given the Oregon statutes?
04-928 +++$+++ 32573 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, our view is that this Court certainly could reach the constitutional question presented. And, indeed, there are good reasons that this Court should. The Oregon Supreme Court squarely confronted, and resolved, the Federal constitutional question, and it is ripe for this Court's review. It is true, as Justice O'Connor suggested at the outset, that the Oregon Supreme Court appears to have been laboring under a factual misimpression -- namely, that Respondent's mother did not testify at the initial trial. That having been said, it appears to be clear that Respondent was seeking -- and is still seeking, even before this Court -- to introduce the live testimony of his mother.
04-928 +++$+++ 32574 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But --
04-928 +++$+++ 32575 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the --
04-928 +++$+++ 32576 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, based on what you have just said, which was my understanding, too, assuming the Oregon Supreme Court made the assumption that the mother's testimony had not been admitted at prior trial, the only thing that the Oregon Supreme Court was ruling on was the admissibility of new testimony, and the use to which new testimony could be put, right?
04-928 +++$+++ 32577 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that is correct, Justice Souter.
04-928 +++$+++ 32578 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that if the --
04-928 +++$+++ 32579 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do think --
04-928 +++$+++ 32580 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- if the other side says, "We totally give up any claim to introduce new testimony," then don't we have a jurisdictional problem?
04-928 +++$+++ 32581 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that we would agree with the State of Oregon that a necessary implication of the Oregon Supreme Court's holding, albeit unstated, was that a defendant is constitutionally entitled to argue residual doubt, as well as to present evidence of residual doubt. Were that not true, the failure to admit the evidence would, in some sense, be harmless, since it is true, certainly to some extent, that the mere presentation of the evidence might lead to the jury taking it into account even absent an argument or instruction to that effect. But, as a practical matter, this Court has never distinguished, in its consideration of mitigating factors, between the presentation of argument or evidence and obtaining --
04-928 +++$+++ 32582 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, we --
04-928 +++$+++ 32583 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- an instruction --
04-928 +++$+++ 32584 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- have not, but it's possible for, it seems to me -- for all we know, it's possible that Oregon could say, "Look, we have a statute that says everything that was introduced at trial may be considered. That may be a good thing or a bad thing, but that's what our statute says, and they may consider it. But when the question comes, What new evidence may be admitted at the sentencing hearing -- the sentencing phase only, then we're going to restrict that only to evidence which, in our view, is required by the eighth amendment." So, if that is, then -- we don't -- I don't know whether the Oregon Supreme Court took that view, or not. But if it did take that view, and, in this case, the Respondents say, "We no longer want to introduce any new evidence," then we would not have a case left, it seems to me.
04-928 +++$+++ 32585 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that that is true, to some extent, Justice Souter, but I do think that -- at least with regard to the question of what factors are relevant to the ultimate determination, that is governed by a quite different statutory provision. And the Oregon Supreme Court construed that provision to limit the mitigating factors that the jury can take into account to those that are mandated by the eighth amendment.
04-928 +++$+++ 32586 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, on that --
04-928 +++$+++ 32587 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I would further note --
04-928 +++$+++ 32588 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- on that substantive point, it does seem -- I assume a Governor could take this into account in clemency?
04-928 +++$+++ 32589 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, certainly.
04-928 +++$+++ 32590 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I suppose the Governors can do more than juries can. But, still, it seems odd to me that a jury cannot consider that this is a close case. It's been proven beyond a reasonable doubt, of course. It goes at least to whether or not the defendant is obdurate in not accepting guilt. He says, "I didn't do it."
04-928 +++$+++ 32591 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, acceptance of responsibility may present different issues, but we would submit that the fundamental problem with the constitutional rule that the Oregon Supreme Court did expressly adopt is that it would effectively allow jurors, at their discretion, to apply what is a higher standard of proof at capital sentencing than the reasonable-doubt standard, which, after all, is the standard that applies in all other criminal contexts.
04-928 +++$+++ 32592 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, no, the evidence goes to explain why the defendant is taking the position that he does. He said, "I wasn't there." Now, it's true, the jury, in the guilt phase, found that he was -- -
04-928 +++$+++ 32593 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the jury did --
04-928 +++$+++ 32594 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- at least it explains his attitude, his demeanor, his refusal to accept responsibility. There's a reason for that.
04-928 +++$+++ 32595 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the jury did determine, at the guilt phase, that the defendant was guilty beyond a reasonable doubt. And the fundamental point of the reasonable-doubt standard is that it is the highest standard of law -- of proof known to the law, short of absolute certainty. And I think, turning to this Court's case law in the mitigation area, this Court has, time and time again, limited mitigating evidence to evidence concerning the character or record of the defendant and the circumstances of the offense. And the reason for that, I think, is that the very concept of mitigating evidence really does presuppose that the defendant has committed the crime in the first place. To put it another way, mitigating evidence is evidence that suggests that a defendant who has committed the crime is somehow less deserving of the death penalty. And going back to --
04-928 +++$+++ 32596 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it would follow from that, that if a State wanted to exclude the defense evidence on alibi from a sentencing jury's consideration -- let's assume it's a new -- a new sentencing jury -- they could do that.
04-928 +++$+++ 32597 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we believe that that would be permissible. And I think, going back to the joint opinion in Woodson versus North Carolina, which was really where this constitutional requirement of mitigation was first recognized, this Court did not suggest in any way that, to the extent that individualized consideration at sentencing is mandated, a jury is entitled to consider any and all factors that it might think is relevant. Instead, the Court really recognized a category of mitigating factors that is limited to factors that are traditionally taken into account at sentencing -- namely, the character or record of the defendant and the circumstances --
04-928 +++$+++ 32598 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course, that's true --
04-928 +++$+++ 32599 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of the offense.
04-928 +++$+++ 32600 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- with respect to putting in new evidence. I understand your point. But there -- - as a realistic matter, do you think it's possible to prevent a juror from deciding, "I thought it was really a closer case than beyond a reasonable doubt; and so, I'm a little hesitant about the death penalty"? There's no way to prevent that --
04-928 +++$+++ 32601 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think --
04-928 +++$+++ 32602 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- from happening.
04-928 +++$+++ 32603 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- as a practical matter, it may be very difficult to --
04-928 +++$+++ 32604 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-928 +++$+++ 32605 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- prevent it. I'm not sure that it is necessarily desirable for jurors to do that. And there is some suggestion, in the empirical evidence, that what actually goes on in the jury room is that jurors with some level of doubt about a defendant's guilt will actually negotiate with other jurors to ensure that a defendant is convicted, but ends up not being sentenced to death.
04-928 +++$+++ 32606 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there's -- used on the other side and as a policy model, the model penal code, I think, says it's okay. It -- not really that it's okay. It should be considered.
04-928 +++$+++ 32607 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, the model penal code does say that. It was adopted, I think, in 1962. And I think that it is telling that, in the years since 1962, since this Court recognized that the death penalty was constitutional again in the 1970s, no State has expressly adopted a statute that permits consideration of residual doubt in --
04-928 +++$+++ 32608 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ When you --
04-928 +++$+++ 32609 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there are a number of States that do --
04-928 +++$+++ 32610 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To be sure, there are courts in several States -- I think we identified seven in our brief --
04-928 +++$+++ 32611 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Your --
04-928 +++$+++ 32612 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that have --
04-928 +++$+++ 32613 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- position is --
04-928 +++$+++ 32614 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- recognized --
04-928 +++$+++ 32615 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that it's up to the States, I take it, but it's not compelled by the eighth amendment.
04-928 +++$+++ 32616 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right, Justice Ginsburg, just as it would be up to the States, at their discretion, to decide to simply adopt a higher standard of proof across the board in capital cases. A State could certainly decide to adopt an absolute-certainty standard. But I think my point is simply that no State has expressly permitted consideration of residual doubts. Courts have construed statutes in some States to permit it, typically because those State statutes contain broad language either with regard to the definition of "mitigating factors" or with regard to the discretion the jury has in making the ultimate sentencing determination.
04-928 +++$+++ 32617 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, you think -- you think the Oregon Supreme Court might well come out that way, if it wished, although not resting on the eighth amendment?
04-928 +++$+++ 32618 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Might come out that way with regard to the right of a defendant to, say, argue residual doubt?
04-928 +++$+++ 32619 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-928 +++$+++ 32620 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there's no indication of that on the face of the opinion. And I think that, in some sense, it would be quite difficult for the Oregon Supreme Court to do that, having construed the statute that governs the determination that the jury actually makes at sentencing, to limit the factors that the jury can consider to those that this Court has recognized are constitutionally mandated under the eighth amendment. So, as a practical matter, I think the Oregon Supreme Court's reasoning in this case really forecloses that interpretation. If the Court has no further questions, we would ask that the Court vacate the decision -- Thank you.
04-928 +++$+++ 32621 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. Mr. Wolf.
04-928 +++$+++ 32623 +++$+++ FALSE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you. Mr. Chief Justice, Associate Justices, may it please the Court: Hopefully, I can simplify this matter for the Court. As is set forth in our brief, and in our motion that was recently filed, Mr. Guzek does disclaim any reliance on the eighth amendment of the United States Constitution as a basis for admitting, at his retrial -- -
04-928 +++$+++ 32624 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but that doesn't matter. I mean, the question is what the Oregon Supreme Court did, and it's quite clear that it based its decision on the eighth amendment, not these various provisions of Oregon evidence law.
04-928 +++$+++ 32625 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, with all due respect, Mr. Chief Justice, if Mr. Guzek does not intend to rely upon the eighth amendment, I think that this would moot the case and that the -- this Court could then vacate that portion of the Oregon Supreme Court's opinion.
04-928 +++$+++ 32626 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You argue in -- an eighth amendment case in the Supreme Court, you win on the eighth amendment, then you leave the courthouse and say, "Well, I don't want it anymore," and you think that moots the case?
04-928 +++$+++ 32627 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-928 +++$+++ 32628 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's still a decision, binding in this case, giving you the right to admit any evidence on residual doubt in the retrial.
04-928 +++$+++ 32629 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I respectfully disagree. In -- because, in fact, we didn't really argue, in the Oregon Supreme Court, that we were entitled, necessarily, under the eighth amendment. Our argument was primarily under the statute, that this statute says any evidence which came in should be admitted in the retrial.
04-928 +++$+++ 32630 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you don't question, or doubt, that the State Supreme Court decision was based on the eighth amendment.
04-928 +++$+++ 32631 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
04-928 +++$+++ 32632 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-928 +++$+++ 32633 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, if we vacate it and the case is remanded on that ground, I assume it's still open for you to point out to the Oregon Supreme Court that they were in error about the -- about the status of the testimony that you tried to get in, and have it admitted on that ground. Why isn't that the way to handle the matter, rather than your --
04-928 +++$+++ 32634 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That --
04-928 +++$+++ 32635 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- as you express it, "mooting the case"?
04-928 +++$+++ 32636 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that -- we believe that we are entitled to present it under State law, and we think that is the resolution.
04-928 +++$+++ 32637 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, that -- there would still remain -- whether you mooted the case, or whether we vacated and then it was left to the Oregon Supreme Court whether to let this evidence in -- there would still remain the question of what kind of an instruction the jury can be given regarding the consideration of this evidence for purposes not of determining whether a guilty person should not be given the death penalty, but, rather, for purpose of considering whether the guilt is clear enough. I mean, that's -- that issue would still remain, wouldn't it?
04-928 +++$+++ 32638 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, not necessarily. I --
04-928 +++$+++ 32639 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why wouldn't it?
04-928 +++$+++ 32640 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think, under Oregon law, we are entitled to put on -- well, first we have to distinguish between these unitary juries and these retrial juries, because, of course, the retrial jury has not heard the evidence from the guilt/innocence phase, from the original trial. And in the event that a retrial jury is hearing -- they're hearing this evidence for the first time, and the State should not be permitted to just put on the evidence that they think helps aggravate the case.
04-928 +++$+++ 32641 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I understand, but what are you -- what are you going to argue to that jury? Are you going to argue to that jury, you know, that, "Yes, my client has been convicted, but the evidence of his guilt was really not all that clear, and you should take that into" -- don't you want to make that argument?
04-928 +++$+++ 32642 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's a potential argument.
04-928 +++$+++ 32643 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the Oregon Supreme Court says you can make that argument, because the eighth amendment requires you to be able to make that argument.
04-928 +++$+++ 32644 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But we think --
04-928 +++$+++ 32645 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what the State says is, "No, the eighth amendment requires no such thing." So, the issue hasn't gone away. It's still here. It's here in this very case.
04-928 +++$+++ 32646 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we think we're entitled to make it, under Oregon law, in a -- regardless of whether we're entitled to make it under --
04-928 +++$+++ 32647 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What the --
04-928 +++$+++ 32648 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- eighth amendment.
04-928 +++$+++ 32649 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no, no. You're entitled to get the evidence in, under Oregon law, but the question of how that evidence can properly be used by the jury has been decided by the Oregon Supreme Court only on the basis of the eighth amendment, not on the basis of any Oregon statute.
04-928 +++$+++ 32650 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I disagree, Justice Scalia, because the court has said that this evidence, regardless -- with respect to the grandfather -- regardless of its substance, is to be admitted. And if it's to be admitted, it is to be considered. The statute with --
04-928 +++$+++ 32651 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ But considered --
04-928 +++$+++ 32652 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- which Justice Breyer --
04-928 +++$+++ 32653 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ -- for what? That's the problem. I mean, here is someone who's been found guilty beyond a reasonable doubt.
04-928 +++$+++ 32654 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-928 +++$+++ 32655 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ And I don't see how it's relevant to go in at sentencing and say, "Oh, but there are all these doubts." I mean, by finding "beyond a reasonable doubt," there isn't a reasonable doubt left.
04-928 +++$+++ 32656 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The --
04-928 +++$+++ 32657 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ You -- I don't see how that's open to argument. You can say, "Consider the evidence that shows he's a good person underneath it all," or, "There -- he has some moral values that ought to be respected," or something like that, or, "He's capable of doing good things." But I don't see how you can argue doubt.
04-928 +++$+++ 32658 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, first of all, we never did argue doubt. The words "residual doubt" never occurred in this -- in the trial court, they never appeared before the Oregon Supreme Court. Lingering residual doubt was never argued. But in the hypothetical case, the defendant is entitled, and the statute instructs the jury, to consider the evidence from both phases of the trial for all -- for the sentencing purposes. And the Oregon statute is sui generis in the sense that we have a statute that has four questions the jury must answer beyond a reasonable -- the first three must be answered beyond a reasonable doubt. And these are factual questions related to the crime. Did the defendant act deliberately? So, in essence, what we have is -- a case which is charged as an aggravated murder does not make the defendant death-eligible at that point. The defendant is not death-eligible until he is first convicted of aggravated murder beyond a reasonable doubt, and then, in the penalty phase, he is found to have committed the act deliberately, he is found to have -- the victim should not have -- did not provoke him, and his response was unreasonable to that.
04-928 +++$+++ 32659 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In the penalty phase.
04-928 +++$+++ 32660 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-928 +++$+++ 32661 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In the penalty phase?
04-928 +++$+++ 32662 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It has not --
04-928 +++$+++ 32663 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Hasn't that already been found in the guilt phase?
04-928 +++$+++ 32664 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. No, Your Honor. Those are penalty phase --
04-928 +++$+++ 32665 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You --
04-928 +++$+++ 32666 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- questions.
04-928 +++$+++ 32667 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You can be found guilty of murder when you didn't intend to kill?
04-928 +++$+++ 32668 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, you must be found guilty of intentional murder. But, in the penalty phase, the very first question in our statute, which appears in the appendix of the State's brief, is whether the conducts of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased, or another, would result. So, it's additional mental state, a factual determination, that goes beyond whether you intentionally caused death. That --
04-928 +++$+++ 32669 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That seems to be very strange, because I think our cases require -- require that for death eligibility, and --
04-928 +++$+++ 32670 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't disagree with you, Your Honor, and -- however, our petition in this matter was not granted. But the -- this -- that is the -- the point is that our statute is very unique. I don't know of any other --
04-928 +++$+++ 32671 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I have two questions, if I may. One -- of course, that wouldn't -- the alibi evidence would already have been rejected, whether there was deliberateness or not, so that would not support putting in the alibi evidence. But the second question I have -- I wanted to be sure we're clear on -- - do you intend, on the future hearing, to introduce anything other than the transcript of the prior proceeding? Do you intend to introduce live witnesses under -- as you may, perhaps, be able to, under Oregon law?
04-928 +++$+++ 32672 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, first of all --
04-928 +++$+++ 32673 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because I got the impression, from your motion to dismiss the writ as improvidently granted, that you did not. But I don't see anything unequivocally establishing that in the record.
04-928 +++$+++ 32674 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we believe that we are entitled to -- clearly, under the --
04-928 +++$+++ 32675 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ To --
04-928 +++$+++ 32676 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- statute, to --
04-928 +++$+++ 32677 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ To put in --
04-928 +++$+++ 32678 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- put on the live testimony of the -- of the --
04-928 +++$+++ 32679 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, okay.
04-928 +++$+++ 32680 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of the mother.
04-928 +++$+++ 32681 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But is that --
04-928 +++$+++ 32682 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The statute --
04-928 +++$+++ 32683 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, there definitely is a case before us, then.
04-928 +++$+++ 32684 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-928 +++$+++ 32685 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, do you intend to --
04-928 +++$+++ 32686 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then there was really no basis for your motion to dismiss the writ as improvidently granted, if that's true.
04-928 +++$+++ 32687 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, perhaps not as improvidently granted, but if there is -- if the evidence comes in, under Oregon law, and we are disavowing any reliance on the --
04-928 +++$+++ 32688 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But under --
04-928 +++$+++ 32689 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- eighth amendment --
04-928 +++$+++ 32690 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- Oregon law, what is not clear is -- you want to put the mother on the stand.
04-928 +++$+++ 32691 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-928 +++$+++ 32692 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, do you want to go into anything at all that wasn't raised at the trial?
04-928 +++$+++ 32693 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-928 +++$+++ 32694 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, that --
04-928 +++$+++ 32695 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- for us to go into anything that wasn't raised in the original trial, that would have to be otherwise relevant.
04-928 +++$+++ 32696 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's right. So --
04-928 +++$+++ 32697 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And so, for example, if --
04-928 +++$+++ 32698 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that's why I want to know that. That's what's ambiguous.
04-928 +++$+++ 32699 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- if mom --
04-928 +++$+++ 32700 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Look, you only get to go into something if it was not otherwise -- if it is otherwise relevant; and, therefore, if you want to. The reason they think it is relevant is because of a constitutional holding of the Oregon Supreme Court. So, if you want to go into something, we have to decide whether it is, or is not, otherwise relevant. If you want to ask the same thing, that's just a question of whether you have to have a transcript or a live witness. And I don't know that that's a question that depends on their constitutional holding. So, I want to know, Do you want to go into things that are not there in the original trial, yes or no?
04-928 +++$+++ 32701 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, no.
04-928 +++$+++ 32702 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-928 +++$+++ 32703 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't understand that answer, in light of the previous discussion about the deliberate -- deliberately.
04-928 +++$+++ 32704 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the deliberateness, Your Honor -- to this --
04-928 +++$+++ 32705 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did the Oregon courts take the position that, in the sentencing phase, the "deliberately" requirement must be judged just by what was in -- introduced in the guilt phase?
04-928 +++$+++ 32706 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it -- it's -- additional evidence can be put on.
04-928 +++$+++ 32707 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I thought that --
04-928 +++$+++ 32708 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you --
04-928 +++$+++ 32709 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you told us additional evidence on deliberation can be put in the -- in the sentencing phase. But then you're saying that you're not going to do that.
04-928 +++$+++ 32710 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I guess it depends on the nature of -- if it is to impeach the codefendant's testimony, if that's deemed to be additional --
04-928 +++$+++ 32711 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. No, I'm not saying that. I -- look, until this minute, you might have been equivocal. You're quite right, I was leading you. [Laughter.]
04-928 +++$+++ 32712 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, that doesn't mean you can't say yes or no. You can decide right now. So, decide. And I'm -- I will be bound by the answer, as I think we all are. And if your answer is, "Yes, I want to go into otherwise relevant things," I'd like to know that. And if the answer is no, I want to know that, too.
04-928 +++$+++ 32713 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-928 +++$+++ 32714 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I would pass, if I were you. [Laughter.]
04-928 +++$+++ 32715 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I didn't --
04-928 +++$+++ 32716 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, if you pass -- if you pass, I will think you do. And as long as you do, I think we have to decide whether it is, or is not, otherwise relevant. I'm being totally open and honest with you. [Laughter.]
04-928 +++$+++ 32717 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, as a matter of Oregon law, we think we can -- we could put mom on, she could testify verbatim from her original trial, and she could be asked, or she could say, "And I love my son. Please don't kill him."
04-928 +++$+++ 32718 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, I'm not being tricky about it. I want to know if we have to go to the words "otherwise relevant" in the Oregon statute -- "otherwise relevant," particularly in respect to this question of residual doubt.
04-928 +++$+++ 32719 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- it -- I'd ask --
04-928 +++$+++ 32720 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I really would like an answer, if possible.
04-928 +++$+++ 32721 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it -- the answer, Your Honor, is, I'd ask the Court to look to page 3 of our brief, where the statute is set forth, and look carefully at the way that statute is worded, which says, "Either party may recall any witness who testified at the prior trial or sentencing proceeding and may present additional relevant evidence."
04-928 +++$+++ 32722 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right. And they said that relevance is -- of residual doubt is relevant. And the reason that it's relevant is because the Constitution of the United States requires the jury to hear it.
04-928 +++$+++ 32723 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No --
04-928 +++$+++ 32724 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That is what I am focusing on, and I want to know if you want to go into "otherwise relevant," for that reason.
04-928 +++$+++ 32725 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, with all respect, the Oregon Supreme Court did not say residual doubt was admissible. And residual doubt was never argued to the trial court, to the Oregon Supreme Court; and, therefore, whether or not it can come in --
04-928 +++$+++ 32726 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It said that your alibi defense, that had been rejected by the prior jury, was relevant under the eighth amendment.
04-928 +++$+++ 32727 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It did say that.
04-928 +++$+++ 32728 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-928 +++$+++ 32729 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But it's relevant to this idea of deliberation. For example, if the defendant -- the codefendants have testified that the -- Mr. Guzek is the mastermind of this, and that he helped plan this. If the alibi goes to whether or not he was present for all of those events that relate to this issue --
04-928 +++$+++ 32730 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That --
04-928 +++$+++ 32731 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of deliberation --
04-928 +++$+++ 32732 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that brings up a question I have. Particularly under the resentencing provision, it looks like the sentencing trial is going to be just a rerun of the guilt trial, because your main evidence that you want to put in is alibi evidence, "I didn't do it." So, you're going to say, "Here's" -- the mother is going to say, "I -- he was at home." And then, presumably, the State gets to put on all of its witnesses, saying, "No, here are the people who saw him do it," and blah, blah, blah. And so, it's just the same trial all over again.
04-928 +++$+++ 32733 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could be. But it could be a different trial, such as we would propose in this case --
04-928 +++$+++ 32734 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They used to have --
04-928 +++$+++ 32735 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in the sense that --
04-928 +++$+++ 32736 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- two trials. I mean, you know, that's the whole problem here. Your client has been tried as to whether he committed the offense, and found guilty, and now you --
04-928 +++$+++ 32737 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-928 +++$+++ 32738 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- now you want to relitigate the same matter. I don't --
04-928 +++$+++ 32739 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not --
04-928 +++$+++ 32740 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't --
04-928 +++$+++ 32741 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- not that the same matter.
04-928 +++$+++ 32742 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And on the basis that the Constitution requires you to be able to relitigate the same matter two times in the same criminal proceeding, that doesn't seem, to me, right.
04-928 +++$+++ 32743 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but the -- but the factual -- - there are factual determinations to be made in the sentencing proceeding that are a continuation of the original trial.
04-928 +++$+++ 32744 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. So, let's go to the constitutional --
04-928 +++$+++ 32745 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
04-928 +++$+++ 32746 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- issue. Now, let's imagine we have a trial. And at the trial, we have a lot of evidence about the alibi.
04-928 +++$+++ 32747 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-928 +++$+++ 32748 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what the State Court says, "This is our law. When a person is" -- now go to the sentencing phase, the jury has heard it --
04-928 +++$+++ 32749 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-928 +++$+++ 32750 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay? So, they take it into account. And, moreover, we tell them they have to consider it.
04-928 +++$+++ 32751 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-928 +++$+++ 32752 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay? That's a State law. Now, what happens when there's an appeal in the middle, and now we go back just to the sentencing? Here's what we do. We introduce the transcript. And, moreover, we introduce some live witnesses to say what they said before, but nothing else. Now, you're saying there is a constitutional right to present an additional witness on the matter that has already been litigated to go into things that were not there in the trial before.
04-928 +++$+++ 32753 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if --
04-928 +++$+++ 32754 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, my goodness, if you had real evidence of an alibi, why didn't you put it in the first time? And if, in fact, you -- it's not such good evidence, and so forth, why does the State have to waste its time to hear some more about the alibi that you didn't put in the first time? I mean, you know, that's what you're saying the Constitution protects. I'm being a little skeptical. I want to know what your answer is.
04-928 +++$+++ 32755 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we did put it in the first time in this case, and we don't necessarily need to rely on the eighth amendment, we believe, to put it in, if --
04-928 +++$+++ 32756 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I'm agreeing with you --
04-928 +++$+++ 32757 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-928 +++$+++ 32758 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- insofar as you have a right to put in what you've put in the first time.
04-928 +++$+++ 32759 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-928 +++$+++ 32760 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I agree with you on that one. But you said you wanted to do something else. You wouldn't say, "We don't want to do something else." You --
04-928 +++$+++ 32761 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-928 +++$+++ 32762 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- want to do more.
04-928 +++$+++ 32763 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If --
04-928 +++$+++ 32764 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And, in the "more" part, where does the Constitution protect you? I'm willing to, at least hypothetically, go with you on the protection for what they already heard.
04-928 +++$+++ 32765 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Constitution protects us in the sense that it allows us to rebut and respond and reply to evidence offered by the State in aggravation of a sentence of death. And if they're offering evidence that he is -- he acted deliberately, we have a right to respond to that. We don't have to sit there with our hands tied behind our back.
04-928 +++$+++ 32766 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And your --
04-928 +++$+++ 32767 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
04-928 +++$+++ 32768 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- response is that he wasn't there. It's one thing to say, "It was intentional, but you didn't prove deliberate." The other thing is to say, "He wasn't there. He didn't commit the crime in the first place." Those are two quite different things.
04-928 +++$+++ 32769 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but it's also a question of, "How much of it was he there for?" -- as in Green. Was he there when he -- was he there for the planning stage? Because the jury is to consider all of the evidence. So, if he --
04-928 +++$+++ 32770 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought -- well, I guess it -- I guess it depends on what you mean by an "alibi." If all you mean by an "alibi" is that, for part of the offense, he was somewhere -- I thought an alibi meant, "I am not guilty, because I was not there." That's what I thought an alibi was --
04-928 +++$+++ 32771 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think "alibi" means, "I was somewhere else at the time of the offense." But if what the jury --
04-928 +++$+++ 32772 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ But it sounds --
04-928 +++$+++ 32773 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- has considered --
04-928 +++$+++ 32774 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ -- like you're trying to relitigate that question at the sentencing hearing. And, certainly, the eighth amendment does not require that.
04-928 +++$+++ 32775 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
04-928 +++$+++ 32776 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ So, to the extent the Oregon Supreme Court thought that, and rested its holding on that, we ought to reject it out of hand.
04-928 +++$+++ 32777 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but our statute requires the jury, in the sentencing phase, to make these additional factual determinations about the offense.
04-928 +++$+++ 32778 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Well, that's up to the court, on remand, but it ought to be straightened out that the eighth amendment does not require relitigation of where the defendant was at the time of the murder. That was the basis for the "beyond a reasonable doubt" finding of guilt.
04-928 +++$+++ 32779 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of guilt, but not necessarily of the -- but if the evidence of deliberation occurred at other events in the chain of events, than the alibi is relevant to the sentencing question the jury must decide. It's also relevant to -- perhaps, to provocation. So, there are factual determinations that the sentencing jury has to make.
04-928 +++$+++ 32780 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can you put it -- make it concrete for this case? Because I don't see that there would be -- I mean, if the action is intentional, and the question was whether it was deliberate, what planning here would have gone on in some different timeframe?
04-928 +++$+++ 32781 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there was -- there was a timeframe of -- there was evidence that they -- the codefendants testified that the -- the three of them planned to do another burglary of a different house, and then -- the codefendants' timeframes are rather fuzzy, but then they went back, at some point, to the defendant's father -- house to obtain weapons, and then went on to the ultimate victim's house. So, to the extent that this deliberation includes events that occurred before the actual homicide, it's relevant to this deliberation question. And, additionally, the --
04-928 +++$+++ 32782 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I still don't -- I still don't understand. You say that there was -- there had to be proof for conviction and guilt -- of guilt of intentional conduct. And this is a simple story that's told: they wanted to go to one house, too many lights on in that house; they were frustrated, they wanted to go someplace else, so they came upon the aunt and uncle of the defendant's former girlfriend.
04-928 +++$+++ 32783 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it was a much longer timeframe than that. There was testimony that they went back to town, and went to the father's house and obtained weapons before they went to the house where the homicides occurred. The other issue is that there has been subsequent evidence, since the first trial. These codefendants have recanted certain statements. They have recanted --
04-928 +++$+++ 32784 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You want to put that in?
04-928 +++$+++ 32785 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. We believe that that's -- we're entitled to do that to rebut --
04-928 +++$+++ 32786 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Any new -- any new evidence relevant to alibi or degree of guilt.
04-928 +++$+++ 32787 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not to -- no, I wouldn't characterize it as to alibi. Any evidence that goes to the sentencing questions the jury must consider, to deliberation, to --
04-928 +++$+++ 32788 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you -- and you want to retain the right to put in whatever evidence is relevant on those questions.
04-928 +++$+++ 32789 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely.
04-928 +++$+++ 32790 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, then what was all the discussion about the mother's having -- then, when you go back, you can put on anything, whether it was presented before, or not, right? Because the eighth amendment requires that, according to the Oregon Supreme Court.
04-928 +++$+++ 32791 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, whether it's required under the eighth amendment, or not, is for you to decide, obviously, but we think --
04-928 +++$+++ 32792 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-928 +++$+++ 32793 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that it's whether or not Oregon law also requires it. And we believe, under Oregon law, we're entitled to put this on, we're entitled to rebut this. For example, Justice Kennedy was talking about a scenario -- and, in this very case, the joint appendix, at page 92, the prosecutor in this case -- this is an excerpt from the trial -- was trying to get in evidence that the defendant was being manipulative. And, at this point, the alibi evidence had been excluded. And so, the fact that the defendant was not taking responsibility, perhaps was being deemed as manipulating people by trying to get them to come forward to say, "I wasn't there," then alibi is relevant to respond -- to rebut and respond to that kind of an argument.
04-928 +++$+++ 32794 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Whatever Oregon law might say, or not say, it appears that this Supreme -- Oregon Supreme Court was acting under what it thought was the compulsion of the eighth amendment. If it's wrong about that, you can make your argument about what Oregon law should be, without any eighth amendment constraint.
04-928 +++$+++ 32795 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
04-928 +++$+++ 32796 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it does seem that this court was operating on the assumption that the eighth amendment required it to let in this alibi and other evidence.
04-928 +++$+++ 32797 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And we think -- we agree that the Oregon Supreme Court went farther than it needed to in this case in order to decide the issue, because, under Oregon law, mom testified --
04-928 +++$+++ 32798 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, you know, we're being asked to decide whether Oregon Supreme Court correctly interpreted the Federal Constitution. And you seem to be making most of your argument to the effect, "Well, we don't really need that holding. We can prevail on Oregon law."
04-928 +++$+++ 32799 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Uh-huh.
04-928 +++$+++ 32800 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But are you going to make any argument in support of the decision made by the Oregon Supreme Court?
04-928 +++$+++ 32801 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, not as long as the State of Oregon agrees that this statute operates in an evenhanded fashion. In other words, if they get to recall witnesses who originally testified, or present transcript testimony, then we should have the same right.
04-928 +++$+++ 32802 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Well, this is --
04-928 +++$+++ 32803 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
04-928 +++$+++ 32804 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ -- so odd. It -- almost as though we should appoint some amicus here, Counsel, to argue in support of the merits.
04-928 +++$+++ 32805 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
04-928 +++$+++ 32806 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ I mean, you don't seem to be doing that.
04-928 +++$+++ 32807 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, on the merits, we --
04-928 +++$+++ 32808 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ It's very strange.
04-928 +++$+++ 32809 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we think that the -- that the Oregon Supreme Court decision was correct in -- on the -- on the eighth amendment. And we think it's -- but it's -- not necessarily for the reasons stated by the Oregon Supreme Court. And the fact is that if the Oregon Supreme Court held that we have a right to -- we believe that we have a right to respond to any evidence they offer on aggravation.
04-928 +++$+++ 32810 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about -- what about -- for example, the single most important feature leading juries to recommend against death, apparently, from the studies, is their residual doubt. Every juror who hears sentencing matters directly after a trial automatically takes that into account. Therefore, those who are resentenced and have a new jury should have the same kind of right. Otherwise, it's cruel and unusual. Now, I made that argument. You didn't make it. But it seems to me that there are several arguments that you might make in favor of the Oregon Supreme Court's approach if, at least, you concede that it is up to Oregon to control, through its evidentiary rules, whether a matter is relevant, what form it comes in, et cetera.
04-928 +++$+++ 32811 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we think that if -- by directing that the jury consider all evidence in both phases of the trial, it must be relevant. Why else would they instruct the jury to consider such evidence, unless it was relevant to the sentencing questions the jury must answer? And obviously I agree with you, Justice Breyer, that if the -- if a defendant must run the gamut of having -- we have to remember that the first trial was set aside because it was defective in some way. And it would be an anomalous result for the resentencing jury to not be entitled to hear what the first jury heard when the defendant had an unconstitutional, or a defective, trial. So --
04-928 +++$+++ 32812 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Wolf, in view of the direction this discussion is going in, I want to go back to something that I really think we all thought we had passed but I would like to go back and get clear on. My recollection is that you stated, in your answer to Justice Stevens, that you currently maintain that you have a right to recall the mother to the stand at the -- at the sentencing proceeding. My question, which is prompted by your motion -- my question is, Is it your present intention to call the mother to the stand, or is it your present intention to use the mother's testimony, which we all -- - I understand to be admissible? Are you going to call her, or not?
04-928 +++$+++ 32813 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we would intend to call her.
04-928 +++$+++ 32814 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You do intend to call her.
04-928 +++$+++ 32815 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because we think it's important --
04-928 +++$+++ 32816 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I'm not asking why. I just want to know whether you are. And your representation to me is that you do intend to call her as a live witness as the -- at the resentencing.
04-928 +++$+++ 32817 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-928 +++$+++ 32818 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-928 +++$+++ 32819 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I'd like to answer the reason for that, because we think the jury is entitled to see her demeanor and gauge, based on how she testifies, how believable she is. We think it's much -- we think it's better for a jury to be able to see a live witness than hear a cold transcript being read by surrogates. And so, of course, in -- as we know, in -- if she were to stray from what she testified at the original trial, of course she would be impeached with, "Well, you didn't testify about that the first time." But the jury, we think, as the statute clearly indicates, should allow witnesses who testified originally to be recalled, unless, for some reason, they're unavailable --
04-928 +++$+++ 32820 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Wolf, I --
04-928 +++$+++ 32821 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in which case --
04-928 +++$+++ 32822 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I had misunderstood something. There's going to be a new sentencing, but there also is going to be a new trial, is there, on the merits?
04-928 +++$+++ 32823 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. There --
04-928 +++$+++ 32824 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why -- because you mentioned, earlier, about the defect in the trial.
04-928 +++$+++ 32825 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The convictions -- well, the defect was in the penalty phase.
04-928 +++$+++ 32826 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, okay.
04-928 +++$+++ 32827 +++$+++ TRUE +++$+++ MR. WOLF +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And so, the convictions are affirmed. The jury is going to be instructed, "The defendant stands convicted, has been found convicted beyond a reasonable doubt." It is to decide these four questions: Did he act deliberately? Does he constitute a future danger? And, to the extent the Government puts on evidence that addresses those concerns, we believe we have the right to respond to that. And also -- we also have to remember that the -- that the alibi in this case was -- really was offered as impeachment of the codefendants. The codefendants are really the only evidence that links the defendant to these crimes. And so, to the extent that -- it's impeachment by contradiction. So, while they may find that if the codefendants say, "He did A, B, and C," and mom says, "No, he was with me," it doesn't necessarily mean that he was with mom, only that they should disbelieve the codefendants. And that is a -- although it seems incongruous, that's standard impeachment by contradiction. The jury is given an instruction that they're to consider it for the limited purpose of whether or not to believe the codefendants, but not necessarily as substantive evidence of alibi. And that happens in trials every day. So, we don't think it's that unusual for the -- if the evidence relates to the sentencing questions the jury must consider, then it should come in. So, the other point that I think is important in this case is that the -- you know, the -- it's really not unlike this -- cases that this Court has held, Sumner versus Shuman, and Skipper. If the Government puts on evidence -- I see my time is up.
04-928 +++$+++ 32828 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Counsel. Ms. Williams, you have 2 minutes remaining.
04-928 +++$+++ 32830 +++$+++ FALSE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ General Williams, I have one question. I'm not sure it goes to our eighth amendment question before us, but I honestly don't understand what your statute is all about. It says that after having been convicted of aggravated murder -- aggravated murder -- the sentencing jury shall be presented with the following questions. Number one, whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased, or another, would result. Don't you have to find that in order to convict of aggravated murder?
04-928 +++$+++ 32831 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, we copied from Texas on those special issues. And so, in the guilt phase, what you have to establish is the defendant acted intentionally. And that's what's required as far as a constitutional state of mind. And the deliberateness question is sort of an intentional-plus.
04-928 +++$+++ 32832 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Plus, okay.
04-928 +++$+++ 32833 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's from an additional --
04-928 +++$+++ 32834 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I gotcha.
04-928 +++$+++ 32835 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- finding, beyond intentional, that the State has to then establish in the penalty phase. Two quick points. First, on how this evidence was offered. It was not offered as impeachment evidence. It was not offered under any State statute. If you look in the joint appendix, the second volume, at page 94 is the notice of intent to rely on evidence of alibi as mitigating evidence. And then there's an accompanying memo that follows. And, also, at page 88 of the joint appendix, there's a colloquy between defense counsel and the trial court, where defense counsel says, "Your Honor, I made it very clear that alibi is being offered as mitigation. It goes to the circumstances of the crime. It's mitigating evidence that someone is not there." And, later, circumstances of the offense is part of the fourth question, which, in Oregon, is the mitigation question. If the --
04-928 +++$+++ 32836 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is the 2:16 a.m. alarm clock in the original trial, or not?
04-928 +++$+++ 32837 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The mother's testimony about the time from --
04-928 +++$+++ 32838 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-928 +++$+++ 32839 +++$+++ TRUE +++$+++ MS. WILLIAMS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- 2:10 a.m. to 4:20 is in the guilt phase of the trial. And again from the colloquy, "If you're not there, that is certainly mitigating." And let me just mention, in terms of the timing of the alibi evidence, the grandfather's alibi covered from 9 o'clock at night until 2 o'clock in the morning; the mother's, from 2:10 in the morning til 4:20. The crimes occurred in the early morning hours. And so, there isn't any way to parse this out and say that the alibi testimony might have been relevant, in some small piece, on deliberateness. To the extent that the State puts on additional evidence to establish deliberateness, of course defendant can respond to that additional evidence, but the State doesn't make the question of whether the defendant was there wide open again in the penalty phase.
04-928 +++$+++ 32840 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Ms. Williams. The case is submitted.
04-944 +++$+++ 32845 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first today in Arbaugh v. Y & H Corporation. Mr. Joseffer.
04-944 +++$+++ 32846 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++  +++$+++ Mr. Schwartz.
04-944 +++$+++ 32847 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ Mr. Schwartz. Excuse me. Mr. Schwartz.
04-944 +++$+++ 32849 +++$+++ FALSE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: A Federal court has subject matter jurisdiction over a claim brought under title VII regardless of whether an employer has 15 employees. This is so because when Congress enacted title VII, it included a specific jurisdictional grant and that grant provides that jurisdiction will exist in the Federal courts over all claims brought under the act. This specific grant of jurisdiction is consistent with the more general grant of jurisdiction contained in 28 U.S.C. 1331 wherein Federal question jurisdiction exists over all claims that arise under a Federal law. Title VII is a Federal law. The Fifth Circuit erred when it -- when it determined that the employer numerosity issue went to the subject matter jurisdiction of the court. Indeed, when title VII was passed, Congress actually expanded jurisdiction, the Federal question issue of title VII, because at that time 28 U.S.C. 1331 had a $10,000 amount in controversy requirement that Congress did away with because the jurisdictional grant contained within title VII made no mention of the $10,000 requirement.
04-944 +++$+++ 32850 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you say -- so now it's essentially redundant. Now that 1331 has no jurisdictional amount, no amount in controversy, the jurisdictional provision in title VII is just going over the same territory. It doesn't add or detract. Is that so?
04-944 +++$+++ 32851 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would agree with that. Indeed, the question --
04-944 +++$+++ 32852 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In the first sentence, but not in the venue part.
04-944 +++$+++ 32853 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not in the venue part and -- and certainly -- because it does apply to which district court a case should be brought. I would say it -- it's redundant to the extent of conferring jurisdiction to a Federal court, but not on the venue provision --
04-944 +++$+++ 32854 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which is not subject matter jurisdiction, which is what we're concerned with here.
04-944 +++$+++ 32855 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. It's not an issue in this case.
04-944 +++$+++ 32856 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about the argument, though, that when you're talking about a threshold question like coverage, who the statute covers, and it's quite different from the cause of action cases, many of which you rely on in your brief?
04-944 +++$+++ 32857 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we're talking here about a question of whether or not coverage is subject matter jurisdiction, and it's our position that once you go beyond the text and you start evaluating the various aspects of title VII, Mr. Chief Justice, you are going down a -- a slippery slope. An example would be a case perhaps where a -- in fact, a case that I'm currently involved in where a plaintiff is alleging that they were discharged discriminatorily. And the reality is from the employer's perspective, that that person was never terminated. They're still an active employee. That is an essential issue of a cause of action. The coverage of title VII --
04-944 +++$+++ 32858 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's more a question of -- of whether or not the -- there's been a violation of title VII. It seems to me that the number of employee issue is whether you're covered at all, whether you have to conform your conduct to that law. Your question -- your -- your case of whether someone has been discharged or not just goes to whether there's been a violation.
04-944 +++$+++ 32859 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Mr. Chief Justice, but I believe that the analogy applies because it still goes to whether or not you start reading the act beyond the jurisdictional grant. It's unnecessary to go beyond the jurisdictional grant because --
04-944 +++$+++ 32860 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But in City of -- in City of Kenosha, of course, the Court went beyond the jurisdictional grant and it said that the definition of the term person in 1983 raised a jurisdictional question.
04-944 +++$+++ 32861 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I would not necessarily agree that that goes beyond the jurisdictional grant because the jurisdictional grant of -- contained in 1334 -- 1343 requires that -- that jurisdiction apply against a person acting under color of State law. And that's an example which Congress has done many times of putting qualifiers within a jurisdictional grant. An example of -- of that we have -- we attached 60 such statutes to our appendix in our reply brief, but a specific example, which I think is applicable here, is the Uniformed Service Employee Reemployment Rights Act wherein Congress put in that the act would only apply jurisdictionally, subject matter jurisdictionally, against employers. And then there's a subsequent definition of employer further on in -- in the statute which is missing here because title --
04-944 +++$+++ 32862 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's the practical consequence of the one or the other? Number one, if you don't raise it below, you can still raise it on appeal if it's jurisdictional. Right?
04-944 +++$+++ 32863 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-944 +++$+++ 32864 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And number two, the -- if it's a jurisdictional question, it would be decided by the -- by the judge rather than by the jury?
04-944 +++$+++ 32865 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct as well. And I would go further that the practical problem is what happened in our case where it wasn't raised in the trial -- in -- in the case until after a trial on the merits and after the jury returned the verdict, and we wasted a lot of time. It -- it could have been brought up beforehand as a -- a substantive motion for summary judgment or a 12(b)(6) motion if the pleadings resolved the issue.
04-944 +++$+++ 32866 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that's always the case. I mean, why -- you know, if those disadvantages -- those disadvantages will always exist. So why would Congress ever make something jurisdictional rather than simply making it an element of the cause of action? You understand what I'm saying? I mean, that's always a consequence.
04-944 +++$+++ 32867 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I think the --
04-944 +++$+++ 32868 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And yet, you -- you acknowledge that some things are jurisdictional.
04-944 +++$+++ 32869 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I think if I'm -- if I'm an attorney representing a plaintiff and I want to make an evaluation of whether or not I have a claim, I want to first evaluate do I pass a jurisdictional threshold. If a come -- a person comes into my office and says, look, this happened to me, I want to bring a cause of action, and I know that they employ less than 15 people, then I'm not going to waste my time.
04-944 +++$+++ 32870 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Well, but what's the rule that you suggest we look to in deciding whether a provision is jurisdictional? Because, as the Chief Justice pointed out, in 1983 cases where the question is whether the defendant is a person, we've held that is jurisdictional. So what is the rule in telling us when we should treat something as jurisdictional?
04-944 +++$+++ 32871 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the rule that has existed for some time now, going back to Bell v. Hood, is a -- a fair way to look at this. If a statute, a Federal law, creates a cause of action, then a cause -- a cause of action lies absent Congress expressly limiting or qualifying an -- a jurisdictional element within its grant contained within that law, which is -- which is missing completely in title VII.
04-944 +++$+++ 32872 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What would you call this? Would you call 15 or more employees an element of your claim that you must prove?
04-944 +++$+++ 32873 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-944 +++$+++ 32874 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or there could be an affirmative defense and you're not claiming the latter.
04-944 +++$+++ 32875 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It could be an affirmative defense.
04-944 +++$+++ 32876 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you're -- you're accepting that it is your burden rather than the employer's to show that the employer had fewer than 15 employees.
04-944 +++$+++ 32877 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ More than 15, yes, Your Honor.
04-944 +++$+++ 32878 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ More than.
04-944 +++$+++ 32879 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. That -- that's the plaintiff's burden just like it's the plaintiff's burden to prove that they were terminated --
04-944 +++$+++ 32880 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Did you establish that in the course of the proceedings?
04-944 +++$+++ 32881 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We did not plead it with particularity. We pled that the employer sexually harassed the plaintiff, and then thereafter in the pretrial order, it was not raised as a contested issue of fact. And I believe the law of the case doctrine would control in that instance because the --
04-944 +++$+++ 32882 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I was going to ask what -- how does the waiver work? Suppose the judge pre-verdict says, you know, I'm concerned that there are less than 15 employees. Can the plaintiff say, oh, well, now, Your Honor, you can't get into that? They waived that. They didn't raise it. I mean, how does that work?
04-944 +++$+++ 32883 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it's -- if it doesn't go to the subject matter jurisdiction --
04-944 +++$+++ 32884 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Under your theory of the case?
04-944 +++$+++ 32885 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- then I would say that it is waived, if it's been answered --
04-944 +++$+++ 32886 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Well, but if it's your burden to prove it, how can it be waived by the defendant? I don't understand your theory.
04-944 +++$+++ 32887 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You mean the judge just has to watch the case sail over the waterfall and --
04-944 +++$+++ 32888 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, let's talk about two different examples. If we have pled with particularity that the employer has 15 or more employees and is subject to title VII for liability purposes and the defendant in their answer admits that fact, then that becomes a -- a admission --
04-944 +++$+++ 32889 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, in my case nobody mentions it but the judge.
04-944 +++$+++ 32890 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ All right. So we have alleged in our lawsuit that the employer terminated or sexually harassed the plaintiff and the -- there is not -- it's not particularly pled. Is that the hypothetical, Justice Kennedy?
04-944 +++$+++ 32891 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, and the -- and the judge calls it sua sponte to the attention of the parties.
04-944 +++$+++ 32892 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would think that if the judge in a -- in a Federal cause of action was troubled by any element of the claim, based upon his or her own review of the factual setting, it's conceivable that -- that the court then could entertain motions on that particular issue.
04-944 +++$+++ 32893 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, wait. You -- you pleaded -- you pleaded that -- that the defendant was -- was an employer under the act. Right?
04-944 +++$+++ 32894 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-944 +++$+++ 32895 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it's the definition of employer that says he has to have more than -- more than 15 employees. So, in effect, you -- in making your complaint, you -- you at least implied and maybe said that this person is an employer under the act. So it seems to me at that point the -- the burden shifts to the other side to say -- the burden of going forward of saying no, this person isn't an employer under the act, and if they say nothing, then they've accepted what -- what your complaint on its face says.
04-944 +++$+++ 32896 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree with you, Justice Scalia.
04-944 +++$+++ 32897 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I knew you would. (Laughter.)
04-944 +++$+++ 32898 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- but maybe -- but that doesn't sound like a reasonable agreement. All you -- so you file one sentence saying this person violated title VII. Are you impliedly including all of the allegations of what constitutes a violation of title VII because if you didn't allege every particular element, it wouldn't be a violation of title VII? That's not how pleading works.
04-944 +++$+++ 32899 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. And -- and I can -- I can tell you, Mr. Chief Justice, I have probably handled 500 causes of action for discrimination cases, and I've never seen anybody plead the issue of whether or not somebody has 15 employees. It's just not done.
04-944 +++$+++ 32900 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In your pleadings, did you say he's an employer?
04-944 +++$+++ 32901 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-944 +++$+++ 32902 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did you use the term employer?
04-944 +++$+++ 32903 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Souter.
04-944 +++$+++ 32904 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
04-944 +++$+++ 32905 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and it was admitted and then it was never challenged thereafter until after the verdict.
04-944 +++$+++ 32906 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How does it -- you -- you told us of your extensive experience. How does the numerosity requirement usually come up? You've accepted that it's an element of your claim rather than an affirmative defense the defendant must plead and prove. So how does it ordinarily come up? Does it -- because defendant answers and asserts that it has fewer than 15 employees?
04-944 +++$+++ 32907 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I can give you one real-world example, Justice Ginsburg. I represented a defendant in a case that didn't employ 15 people, and when I attempted to convince the plaintiff -- plaintiff's lawyer of that fact after the litigation commenced and they weren't willing to -- to go ahead and voluntarily dismiss, I simply filed a motion for summary judgment attaching affidavit material, including payroll records. And then once the plaintiff's attorney reviewed that, they voluntarily gave up and the case was dismissed. That would be the way it would normally play out, provided it's not held to be an issue of subject matter jurisdiction. Another reason why this should not be a subject matter jurisdiction goes to the practical elements of the way this would progress in litigation and title VII's admonition, which is a rare admonition in legislation, that title VII cases be heard in an -- is in an expedited way. In enacting that particular language, it appears to me that Congress was acknowledging that this is a very important law. We're trying to remediate a terrible wrong, that is, employment discrimination. So we don't want these cases to languish. It's almost as though it's being processed like a Federal Rule of Civil Procedure injunction proceeding, that this is a case that should move very quickly. And many courts, like the one across the river in Virginia that are known as so-called rocket dockets, process these cases on a very fast track. I know that -- that court does it. Other courts that I practice in do it as well where it is not uncommon that from the pleading that a trial is set as quickly as 6 months thereafter. If this was to be subject matter jurisdiction and we had to initially litigate the question of whether or not the person is an employer and putting aside all other issues in the case, it would invariably result in a dragged-out process. In our case, as we -- as we noted --
04-944 +++$+++ 32908 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's true in a lot of areas. I think of admiralty. If there's an issue of admiralty jurisdiction that questions whether an injury is caused by a vessel in navigable water, you often have extended litigation over that jurisdictional question.
04-944 +++$+++ 32909 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and in those cases, the jurisdictional grant in the Jones Act does include elements of jurisdiction. So it's -- it's required. But I don't -- I don't believe that the Jones Act has the same type of language, Mr. Chief Justice, that title VII has, requiring that these cases be heard expeditiously. So --
04-944 +++$+++ 32910 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does it -- does it have to be resolved preliminarily? Why can't you leave the jurisdictional question to be decided at the conclusion of the trial with all the other questions? Is there some rule of law that says that a jurisdictional question must be confronted before the trial and before the merits? Indeed, most jurisdictional questions are reexamined as the trial proceeds. That is, you know, initially the court will say, yes, there appears to be jurisdiction on the basis of the pleading. Then if there's a motion to dismiss, yes, there -- there appears to be jurisdiction on the basis of the affidavits. But then if the trial proceeds and it turns out that, in fact, there isn't jurisdiction, the court dismisses. So why couldn't this jurisdictional question always be handled that way? Just -- just leave it to be resolved during the trial. It wouldn't slow anything up.
04-944 +++$+++ 32911 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There -- there's a few problems with that. One is that it is not uncommon in title VII cases that there are supplemental State claims brought in the cause of action, and so we would have a situation where there would be a lot of wasted effort on the pending claim if, at some point, Justice Scalia, at the end of the day the case was dismissed on subject matter jurisdiction. That was s situation in our case where we had a pendant tort claim for battery, and we also had a pendant claim under the ancillary Louisiana discrimination statute.
04-944 +++$+++ 32912 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. So this is a third consequence of the jurisdictional issue.
04-944 +++$+++ 32913 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-944 +++$+++ 32914 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If the issue is jurisdictional, all the pendant State claims don't belong there and they've got to be chucked out; whereas, if it just goes to the merits, the pendant claims are properly before the court.
04-944 +++$+++ 32915 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Your Honor.
04-944 +++$+++ 32916 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's an important consequence.
04-944 +++$+++ 32917 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In addition, the Court's recent opinions addressing subject matter jurisdiction have all gone back, it seems to me, to this question of what does the text say. The -- the issue of not conflating the use of the word jurisdiction, which has been referenced in a number of the Court's opinions, Steel Company, Kontrick, Eberhart, Scarborough, all point to the fact that where the text is clear, as it is in this case, and there is no ambiguity, then subject matter jurisdiction lies if a claim is brought under a Federal act. If there's no further questions, I'd like to reserve the balance of my time for rebuttal.
04-944 +++$+++ 32918 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Schwartz. Now Mr. Joseffer.
04-944 +++$+++ 32920 +++$+++ FALSE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Justice O'Connor, we think the rule here, because it's a question of congressional intent, is simply how to best interpret the relevant statutes. Here, Congress twice unambiguously conferred jurisdiction over all title VII claims, at least twice: first in section 1331 and again in the title VII jurisdictional provision which confers jurisdiction over all claims brought under title VII.
04-944 +++$+++ 32921 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Joseffer, maybe you can raise the podium a bit so the microphone works better. The other way.
04-944 +++$+++ 32922 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sorry. Is that better? Thank you. As I was saying, the question is -- is -- because it's a question of congressional intent, we think normal rules of construction apply. And, Justice Ginsburg, you asked about whether the title VII subject matter jurisdictional provision is now redundant in light of the reduction of the amount of controversy from section 1331. Technically we think the answer is yes, but it still has great interpretive value because it shows that when Congress meant to address the jurisdictional question in title VII, it expressly said so and it did so by conferring jurisdiction over all title VII claims. The definition of employer, which is the relevant issue here, does not itself speak in jurisdictional terms and does not modify in any way title VII's broad jurisdictional provision.
04-944 +++$+++ 32923 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what about the EEOC having typed the question jurisdictional for administrative processing purposes?
04-944 +++$+++ 32924 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Well, as the Court has remarked on multiple occasions, the word jurisdiction is a word of many, many meanings, and the EEOC has never said that it's a question of the subject matter jurisdiction of the Federal courts. It was -- until about 5 or 6 years ago, EEOC in an administrative context used the word jurisdiction to refer to the definition of employer, statutes of limitations, and a variety of other matters that are clearly not subject matter jurisdictional. But after this Court held in Zipes that another provision of title VII is not one of subject matter jurisdiction, EEOC realized that its administrative use of the broad term jurisdiction was confusing. So 5 or 6 years ago, EEOC amended its compliance manual and no longer refers to any of these questions as jurisdictional. But I guess the key point is it never said it was on subject matter jurisdiction. And Mr. Chief Justice, you asked about whether a threshold question of coverage could be considered different than another element of the cause of action. I think the important thing here is that the place where Congress used the term person is in setting forth what conduct is unlawful. Title VII says that it shall be an unlawful employment practice for a person to discriminate in various ways. So the way the definition is irrelevant is in setting forth the scope of unlawful conduct which is a quintessential merits or cause of action inquiry as opposed to a jurisdictional one. The City of Kenosha is different because, as petitioner's counsel recognized, that interpreted not section 1331 but section 1343 which --
04-944 +++$+++ 32925 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Interpreted section -- the use of the word person in section 1983.
04-944 +++$+++ 32926 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Interpreted the word person in section 1983 not to apply to municipal corporations, but with respect to the jurisdictional inquiry, it said that the -- that 1343 did not confer jurisdiction. In Mt. Healthy several years later, the Court held that although section 1343 was narrowly limited to actions that are quote, authorized by law, which connoted somewhat of a merits inquiry, section 1331's jurisdictional provision is not so limited and is not limited by the definition of person, which is what the Court held in section 1331.
04-944 +++$+++ 32927 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So City of Kenosha was just kind of a silly waste of time.
04-944 +++$+++ 32928 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-944 +++$+++ 32929 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ 1331 was applicable there as well. Right?
04-944 +++$+++ 32930 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At the time section 1331 had the amount in controversy requirement, and I think that's why now that section 1331 no longer has the amount in controversy requirement, this Court's section 1343 cases have more or less petered out because plaintiffs can now just go under section 1331. And Justice Scalia, you asked about the -- the practical consequences. I agree there are three practical consequences, and from that perspective, it makes little sense to believe that Congress would have thought that this requirement should be jurisdictional. The first is whether the issue can be raised at any point in the litigation. The second is who decides the issue, and the third is whether, after dismissal of the Federal claims, the State law claims must be dismissed for lack of jurisdiction. And given that this is just one of many facts that arises in determining whether a plaintiff can state a valid title VII claim, it's hard to believe that Congress would have thought that this is the one fact that should be raised at the end of the case instead of at the outset where it can be adjudicated in an orderly manner with all of the other facts. Also, common law juries have been deciding for centuries whether a worker is an employee or an independent contractor for purposes of agency and tort law. And since that is the ultimate dispute here, it seems remarkable to think that that's the one fact that Congress would say should not go to a jury. And similarly --
04-944 +++$+++ 32931 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm sorry. What have juries been determining?
04-944 +++$+++ 32932 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the question as to whether there are 15 employees here --
04-944 +++$+++ 32933 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
04-944 +++$+++ 32934 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- turns on whether some workers are independent contractors or employees. And for agency law purposes, which becomes relevant in tort law in terms of vicarious liability, the question whether someone is an employee or an independent contractor is a -- is a longstanding jury question.
04-944 +++$+++ 32935 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The -- the question was whether the truck drivers counted as employees because if they did, they'd have enough?
04-944 +++$+++ 32936 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. If the -- if the -- if those -- if the delivery drivers were workers -- were employees, there's no question there were 15 employees. So the question was whether some workers count as employees and whether a worker is an employee or an independent contractor is -- is a longstanding question for a jury when there's a disputed issue of -- of fact. And then the third consequence -- I mean, here, there -- the jury rendered a verdict on the State law claims, found in favor of respondent on one, petitioner on the other. And it seems highly unlikely that Congress would think that that jury verdict should be vacated and the case retried in State court because the defendant has 14 instead of 15 employees.
04-944 +++$+++ 32937 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that's the -- that's a consequence of a determination that it's jurisdictional in any case. Right?
04-944 +++$+++ 32938 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, and there -- there are circumstances --
04-944 +++$+++ 32939 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, if you had a case where you didn't dispute that the issue was jurisdictional and there had been a jury trial on the pendant State law claims, we'd still have to throw that out. Right?
04-944 +++$+++ 32940 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but I think that's one reason that Congress does not ordinarily make jurisdiction turn on those types of facts. In the admiralty concept -- context that you recognized, it's necessary to distinguish between admiralty jurisdiction and general Federal question jurisdiction. So Congress had to distinguish in some way, and the way it did was by saying, well, is the alleged injury caused by a vessel in navigable waters or elsewhere. But ordinarily when -- a distinction does not have to be drawn like that. In section 1343, it was the same because Congress didn't want that to be conflated with section 1331 at the time. When jurisdiction does not necessarily turn on contextual factors, Congress ordinarily just lets the broad jurisdictional ground of section 1331 be a clear, simple threshold inquiry so parties can determine they're in the right court, and then the case can be proceeded -- can be litigated on the merits from there. Justice Kennedy asked whether a court could raise the issue on its own, even assuming that it's a merits issue. And I think the answer is that although the defendant waived the issue here and therefore has no right to insist that it be raised, most waiver doctrines are discretionary, and therefore, courts retain some inherent discretion to overlook waivers in some circumstances. That discretion would be greater at the outset of a case where a Federal court decided it should not be deciding a case than it would be once a jury had already decided the case, which is what happened here. Finally, respondent relies on a number of this Court's title VII decisions for the proposition that this requirement is one of subject matter jurisdiction. The basic point is that this Court has never opined in dicta or in holding on whether this requirement is one of subject matter jurisdiction of the courts. This Court's only title VII subject matter jurisdiction case is Zipes which held that a requirement was not jurisdictional because it was not -- did not textually modify title VII's broad jurisdictional provision and in light of other relevant canons of construction. And for precisely the same reasons, the definition of employer does not textually modify the definitional provision and therefore it does not limit the court's subject matter jurisdiction to adjudicate this claim either up or down based on its merits. If the Court has no further questions, I have nothing further.
04-944 +++$+++ 32941 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Joseffer. Mr. Prendergast, we'll now hear from you.
04-944 +++$+++ 32943 +++$+++ FALSE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, may it please the Court: I have to start off by disagreeing with my learned colleagues on at least three areas. First of all, Mr. Schwartz indicated that the plaintiff pled that the defendant Y & H was an employer in this matter. That is inaccurate. What the defendant actually pled and which became the subject of the subsequent post-trial motions was that the court had jurisdiction, and when the matter of the number of employees was raised, that was the pleading -- the allegation in the complaint that the plaintiff raised to say this issue has been waived. There was no specific pleading in the complaint that said that Y & H qualified for the definition of an employer under title VII. There was no pleading that Y & H had 15 or more employees for the 20 or more weeks that were necessary.
04-944 +++$+++ 32944 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There was no -- there was no allegation that the plaintiff was employed by your client?
04-944 +++$+++ 32945 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was an allegation, Your Honor, that the plaintiff was employed by the company, but there was no allegation that Y & H was an employer as the term is defined in title VII.
04-944 +++$+++ 32946 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Was the --
04-944 +++$+++ 32947 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was the word employer used in the pleadings?
04-944 +++$+++ 32948 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't recall, Your Honor, whether or not the word employer was used. I think it was clearly stated that -- and -- and there's no doubt Ms. Arbaugh was, in fact, employed by Y & H.
04-944 +++$+++ 32949 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. I'm just asking the really formal question. Was the word employer used to refer to your client at any point in the pleadings?
04-944 +++$+++ 32950 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm -- I'm not sure, Your Honor.
04-944 +++$+++ 32951 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do we have the complaint in --
04-944 +++$+++ 32952 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the record, yes, Your Honor.
04-944 +++$+++ 32953 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was there an allegation that the company, petitioner, or whatever it was -- that they violated the act?
04-944 +++$+++ 32954 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was an allegation, Your Honor, that --
04-944 +++$+++ 32955 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right -- I guess that -- they must have thought that there were 15 or more employees because otherwise you wouldn't have.
04-944 +++$+++ 32956 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. And -- and naturally, though, Your Honor, that was denied. The -- the admission that the plaintiff relied upon in the post-trial motions was the allegation that this Court has jurisdiction under title VII, under the relevant provision.
04-944 +++$+++ 32957 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was that denied?
04-944 +++$+++ 32958 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was admitted. The jurisdiction was admitted, and -- and in the post-trial motions, that was the issue that the plaintiff hung their hat on to come back and say this issue is -- is established and stipulated. There was clearly no admission that the --
04-944 +++$+++ 32959 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You denied it. Then they presented evidence, and their evidence was A, B, C, D, E. And I guess then you presented some contrary evidence, and you didn't present any evidence that he wasn't an employer. So I guess the odds are he was.
04-944 +++$+++ 32960 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there was -- but --
04-944 +++$+++ 32961 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if the odds are he was, they win in the absence of any evidence.
04-944 +++$+++ 32962 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, if an employer -- and -- and I disagree with the position that it's -- I -- I think it is an element of the merits in addition to being an element of jurisdiction. But if a plaintiff has that as part of their burden of proof, then the plaintiff naturally has to introduce evidence --
04-944 +++$+++ 32963 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then I guess maybe you could have appealed on that point. So did you?
04-944 +++$+++ 32964 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, because --
04-944 +++$+++ 32965 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then I guess it's waived unless it's jurisdictional. So we're back to the jurisdictional question.
04-944 +++$+++ 32966 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And which we maintain that it is jurisdictional. I'm not sure, Your Honor, whether or not there is, in fact, any waiver because --
04-944 +++$+++ 32967 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I never heard of a point on the merits that if you -- you think you're right. It's right on the merits, the element of the offense. You don't think they proved it, but unfortunately, you don't raise that in the appeal.
04-944 +++$+++ 32968 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, we didn't raise it in the appeal, the reason being that while the matter was still pending in the trial court, in addition to the motion to dismiss for jurisdiction, which was granted, there was a motion for a renewed judgment as a matter of law, which included the plaintiff's failure to maintain their burden of proof.
04-944 +++$+++ 32969 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And did you win or lose on that?
04-944 +++$+++ 32970 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was dismissed as moot because of the jurisdictional issue, Your Honor. So whether or not that is waived or not -- I agree with you. It's not before this Court today, but I don't think it's a matter that can be decided by this Court either. It's a matter, if this Court should decide that it is a merits issue, that goes back to the trial court on remand.
04-944 +++$+++ 32971 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What other aspects of title VII do you think are jurisdictional?
04-944 +++$+++ 32972 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the other aspects -- and clearly, this has not been the subject of as great a research -- would be the other ones that designate the scope or the coverage of the act, for example, especially as it relates to employer. At least three circuit -- and in addition to excluding small companies as employers, the act also includes as -- excludes as employers private membership clubs, the Government, the United States, agencies of the United States, wholly owned corporations of the United States, and also Indian tribes. At least three circuit courts have held that Indian tribes and their status is a matter of subject matter jurisdiction. That's the Fifth Circuit in Thomas v. Choctaw, the Tenth Circuit in Duke v. Absentee Shawnee Tribe, and the Ninth Circuit in --
04-944 +++$+++ 32973 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do they hold that the plaintiff must allege the employer is not an Indian tribe? I'm over here.
04-944 +++$+++ 32974 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry.
04-944 +++$+++ 32975 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Over here. (Laughter.)
04-944 +++$+++ 32976 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I say in -- in those case that you just cited, did they hold that the plaintiff must allege that the employer is not an Indian tribe?
04-944 +++$+++ 32977 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think they got into that matter, Justice Stevens. Instead, what they simply decided was whether or not the -- the employer was an Indian tribe. There was a question concerning some of the structures and just the business organizations that the Indian tribes were using and --
04-944 +++$+++ 32978 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you interpret those cases as, in fact, holding that if there was a trial and a judgment in favor of the plaintiff against what turns out later to be an Indian tribe, that after the case is taken up on appeal, the Indian tribe can have the judgment set aside?
04-944 +++$+++ 32979 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, because the -- the cases did clearly hold that the matter of -- as an Indian tribe was a matter of subject matter jurisdiction. And as a matter of subject matter jurisdiction, it is completely established law that that may not be waived. It may be raised at any time. So --
04-944 +++$+++ 32980 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did it, in fact, come up in that posture in the case? It has already been mentioned that the word jurisdiction has many, too many uses. Did it -- did the question come up in the Indian tribe cases as it did here after the case was fully tried and after there was a jury verdict for the plaintiff?
04-944 +++$+++ 32981 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. Those were cases where there were motions to dismiss based upon lack of subject matter jurisdiction.
04-944 +++$+++ 32982 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When -- if -- if it's brought up promptly, it really doesn't matter, does it, whether you label it 12(b)(1) jurisdiction or 12(b)(6), failure to state a claim? It goes out either way. When it is consequential is when you bring it up, as you did here, after you lose on -- at the trial.
04-944 +++$+++ 32983 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think the effect could be different when you raise it. I think there can also be a difference in effect in how it will be treated, even if it was promptly raised. I think, for example, on a 12(b)(1) motion, I don't believe the -- the court is obligated to accept all the plaintiff's pleadings. It's allowed to look outside the pleadings to actually determine the jurisdiction. Whereas, in a 12(b)(6) motion, if the plaintiff says it's an Indian tribe, it's an Indian tribe.
04-944 +++$+++ 32984 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Prendergast --
04-944 +++$+++ 32985 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-944 +++$+++ 32986 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- my problem with -- with your -- your contention is that I don't know how it is that you -- that you intuit that this one definition is jurisdictional. I mean, the definition -- the -- the 15 employee limit is -- is part of the definition of employer in section 701.
04-944 +++$+++ 32987 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-944 +++$+++ 32988 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There are 13 other definitions in section 1701. For example, it defines on the basis of sex. Now, if -- if you contest whether a particular remark or a particular practice of the employer was -- fell within that definition, was on the basis of sex or not, would you say that the court had no jurisdiction?
04-944 +++$+++ 32989 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor.
04-944 +++$+++ 32990 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Will you challenge -- well, why are you challenging jurisdiction when you're -- when you're saying the -- the definition of -- of employer has not been met, but you are not challenging jurisdiction when you say the definition of on the basis of sex has not been met. Why -- why pick on one rather than the other?
04-944 +++$+++ 32991 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the distinction is similar to an Aldinger/Kenosha type distinction. And I think the question goes back to it requires an interpretation of whether or not Congress wanted to give the lower Federal courts the type of jurisdiction being discussed.
04-944 +++$+++ 32992 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, I -- I understand that.
04-944 +++$+++ 32993 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and --
04-944 +++$+++ 32994 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That -- that's what it comes down to.
04-944 +++$+++ 32995 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and --
04-944 +++$+++ 32996 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But how do you know --
04-944 +++$+++ 32997 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, how --
04-944 +++$+++ 32998 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If both definitions in section 701 --
04-944 +++$+++ 32999 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ How -- how do you know --
04-944 +++$+++ 33000 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- why does one of them express one thing and another not express --
04-944 +++$+++ 33001 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, the way you know is because you look at the logical deductions that can be drawn from the congressional statutes, as this Court suggested in Aldinger. And with respect to the other definitions, I cannot speak categorically with respect to those other definitions because that's not the matter before this Court. I can't suggest to this Court a wholesale general policy of these definitions are jurisdictional and these definitions are not jurisdictional.
04-944 +++$+++ 33002 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ But the practical consequences of affirming here are severe in terms of handling these cases. And we've pointed out in some recent cases of ours that we've been a little sloppy in the past in using the word jurisdiction. So it looks to me like there are many indicators that would point to not treating the 15 employee requirement as one of subject matter jurisdiction.
04-944 +++$+++ 33003 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice O'Connor, I would say the -- the consequences of not affirming are even more severe. Congress, in 1964, made a clear decision that it wanted small businesses not to be burdened with --
04-944 +++$+++ 33004 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Yes, but it's entirely in the hands of the defendant to raise some objection. Who knows better than the employer how many employees the employer has had? I mean, it's totally within your capacity to say, wait a minute --
04-944 +++$+++ 33005 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But one --
04-944 +++$+++ 33006 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ -- we didn't have 15.
04-944 +++$+++ 33007 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- one -- one of the -- one of the concerns, I believe, that Congress did have with respect to small employers was the fact that in the terms of small employers, you are dealing with less sophisticated litigants, less sophisticated litigants with less access to legal resources that bigger companies have.
04-944 +++$+++ 33008 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Were you representing this employer at the time?
04-944 +++$+++ 33009 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. I handled this matter only post-trial.
04-944 +++$+++ 33010 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's -- what's wrong with the rule? We're not dealing with article III here. What's wrong with the rule that if Congress doesn't put it in the jurisdictional section, it's not jurisdictional?
04-944 +++$+++ 33011 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think --
04-944 +++$+++ 33012 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It would make the future cases a lot easier to decide.
04-944 +++$+++ 33013 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that would be contrary, however, Mr. Chief Justice, to the previous holdings of this Court where they say you do look to the logical deductions --
04-944 +++$+++ 33014 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's --
04-944 +++$+++ 33015 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and you look to all the statutes. For example, petitioner makes note of Zipes, but if -- if the jurisdictional statute is going to be the be all and end all of -- of the analysis and the discussion, then Zipes would have merely looked and said, oh, well, the statute of limitations is not in the jurisdictional provision. End of discussion. But Zipes didn't do that. Zipes said we need to look at the -- the jurisdictional statute, the way it's structured. We need to look at congressional intent and the legislative history, how they referred to this matter. We need to look at our prior cases how we referred to this matter. So I think to say just, okay, let's look at the jurisdictional statute -- one, I think there are two problems with it. One --
04-944 +++$+++ 33016 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I go back to Zipes? In Zipes, the Court was faced with the -- the word jurisdictional had been appended to the statute of limitations. I think that was true of the way the EEOC spoke of the rigid time limit, that it was mandatory and jurisdictional. And then the Court explained in Zipes that a strict time line doesn't mean that it's jurisdictional. You can have a rule that's rigid, but it doesn't determine subject matter jurisdiction. And that's what Zipes tried to explain. The Court in Zipes was faced with a number of cases that had used that term to describe the time in which you must bring the action, mandatory and jurisdictional.
04-944 +++$+++ 33017 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Ginsburg. But Zipes also dealt with a legislative history where they referred to it as a statute of limitations period. Zipes also said, okay, we have other cases where we have used the term jurisdictional, but more often than not, we've referred to this as a limitations period. Zipes looked at the whole context and said, yes, we're not going to be held by a few random, maybe casual or careless uses of the term jurisdictional, but we are going to look at the whole thing. Here, the legislative history has traditionally referred to this as a jurisdictional provision. The '72 amendments, which increase -- decrease the number of employees necessary from 25 to 15, referred to it as an expansion of jurisdiction. This Court has had the matter come up before it always in jurisdictional terms. This Court has referred to this. EEOC has referred to it as jurisdictional.
04-944 +++$+++ 33018 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but now we know it's -- EEOC has changed.
04-944 +++$+++ 33019 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Seeing the errors of their ways, I guess.
04-944 +++$+++ 33020 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But why -- now that we do have Zipes, why should the number of employees be treated any differently than that rigid time line in -- in Zipes?
04-944 +++$+++ 33021 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think the reason that the number of employees should be different -- treated differently is because we go back to the Aldinger question, and the Aldinger question is this Court has to decide did Congress want to give this type of jurisdiction to the lower Federal courts.
04-944 +++$+++ 33022 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that was a pendant jurisdiction case. Wasn't Aldinger --
04-944 +++$+++ 33023 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Aldinger dealt with a pendant party issue, yes, Your Honor. Kenosha, however, dealt with -- as the Chief Justice has indicated, Kenosha dealt with a definition that excluded counties from section 1983 and that was found to be implicitly brought into the -- the jurisdictional grant for civil rights actions. So I think the mere fact that something is or is not in the jurisdictional statute cannot be determinative because ultimately you do need to go back to the question of did Congress want to give this type of jurisdiction to the lower Federal courts. My question would be why would Congress seek to give this type of jurisdiction to the lower Federal courts for a whole category of cases where, in the words of this Court in Hishon, it has granted these businesses complete immunity from title VII?
04-944 +++$+++ 33024 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you just used an interesting word because there are litigants who can claim complete immunity from liability, but that immunity, whether it's absolute or qualified, doesn't go to the court's subject matter jurisdiction. It has to be raised in those cases as a defense.
04-944 +++$+++ 33025 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ True, Justice Ginsburg. The difference, however, between the immunity in those cases and the type of immunity here that the Court talked about in Hishon -- immunity for a police officer in a civil rights case with qualified immunity will depend upon a police officer's particular actions in that particular case. The police officer, in general, can be sued under section 1983. The immunity that's present here, with respect to small employers, has no relationship whatsoever to the actions of that employer. An employer who employs 12 people at most can engage in the most egregious employment discrimination and harassment possible, and the Congress of the United States has said, as a policy matter, on balance we would rather accept that kind of awful conduct because we don't want to impose these burdens on small businesses.
04-944 +++$+++ 33026 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or leave it to the States that often do cover smaller shops.
04-944 +++$+++ 33027 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, or leave it to the States and let the States do it. But we don't want the Federal Government to be intruding into the operations -- into the culture of these small businesses, and that I believe is the difference between the immunity that you mentioned, the qualified or prosecutorial type immunity, which depends upon actions, and this immunity here which depends upon simply the status of the defendant, the whole class --
04-944 +++$+++ 33028 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that -- that argument doesn't apply to absolute immunity cases, and yet in absolute immunity cases, once again, it's clear there's jurisdiction. There's simply immunity. The immunity doesn't depend on any particular facts.
04-944 +++$+++ 33029 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The absolute immunity, Justice Souter, that I'm most familiar with would be prosecutorial immunity. I think there can still be exceptions for prosecutorial immunity. I think a prosecutor, depending upon the type of actions he's engaged in, can still be subject to liability.
04-944 +++$+++ 33030 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But we have to determine whether he's acting as a prosecutor. Sure. We have to determine whether the President was acting in a presidential capacity, but that's not the kind of fact inquiry that you were talking about with respect to the qualified immunity.
04-944 +++$+++ 33031 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It certainly -- yes, Your Honor, I will concede it's a different kind of inquiry. But I -- I do think, though, here the categorical exclusion of small businesses is a clear indication of congressional intent of what Congress wanted to have happen.
04-944 +++$+++ 33032 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I -- I don't see why the same argument can't be made with respect to prosecutors. It is clear that if -- if an individual is acting in a prosecutorial capacity and enjoys the appointment as a prosecutor, that at least the -- the system -- we're not necessarily talking about Congress here. The system says there -- there should be, as a categorical matter, an -- an immunity from prosecution. And yet, that does not go to subject matter jurisdiction. And it seems to me that that is essentially the exact argument that you're making here, and I don't see why it should be any more sound here than it would be in the absolute immunity case.
04-944 +++$+++ 33033 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Another -- well, Your Honor, I'll offer another distinction then. The other distinction is prosecutorial immunity and qualified immunity, for that matter, are court-created entities --
04-944 +++$+++ 33034 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's right.
04-944 +++$+++ 33035 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- court-created defenses. And as this Court is well aware, this Court nor any other court has the power to define subject matter jurisdiction. That is Congress' purview and power. Only Congress can limit the court's jurisdiction and define the court's jurisdiction for the lower Federal courts. Here, Congress has spoken with respect to small businesses. It's a different matter, I would suggest, with respect to prosecutors, which is an immunity that is -- is a product of common law and -- and a judicial creation. I would also want to point out that -- another thing. The Solicitor General indicated that if you look at the structure of the -- the liability section, he implied that it just imposes the employer definition into the -- all the other causes of action. In fact, it does not. It says, it -- it shall be unlawful for an employer to, and then it defines what is unlawful. So I think there again it's indicating a difference between other elements of the cause of action and the employer relationship and the employer existence under title VII. Ultimately, what this boils down to is whether or not small businesses are going to continue to receive the protection that Congress has indicated that it wanted them to have.
04-944 +++$+++ 33036 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why can't get they get the protections through summary judgment?
04-944 +++$+++ 33037 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think they would be offered some level of protection, Justice Souter, through summary judgment. The problem is summary judgment offers its own unique hurdles to a defendant. And again, it's a difference --
04-944 +++$+++ 33038 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Among other things, you -- you've got to do it up front.
04-944 +++$+++ 33039 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's -- it's a different standard as well, Your Honor, because under summary judgment, a plaintiff has it within their capability -- have to view all the inferences in the light most favorable to the plaintiff, and -- and the small business could end up being dragged into the litigation further and further than I think Congress intended.
04-944 +++$+++ 33040 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if -- if we're worried about dragging people into litigation, I presume Congress didn't intend, as a -- as a general matter, to allow the -- the situation that we've got here. One party has been dragged through a piece of litigation and, having lost, has decided it wants to take another shot at getting out of the case. Surely you can't say that was within the contemplation of Congress' intent.
04-944 +++$+++ 33041 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, actually I -- I would not have viewed it as outside of Congress' contemplation or intent because Congress -- and I think this is an important part of legislative history. Congress in 1990 enacted the ADA, and they adopted the employer definition from title VII. And at the time that Congress adopted title VII's employer definition for the ADA, all but one circuit court had decided that this was a matter of subject matter jurisdiction. And if you decide something is a matter of subject matter jurisdiction, you take with it the unfairness. And I'm not going to contend that it's not sometimes unfair to parties, some of the consequences of subject matter jurisdiction. But you take that with it when you decide that it's a matter of subject matter jurisdiction. And Congress in 1990 adopted for the ADA the title VII definition. So it's implied that they understood what was going on. In 1991, they -- they had the Civil Rights Act and amended and provided for jury trials in these types of matters. And again, Congress was aware of the state of the law.
04-944 +++$+++ 33042 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ My -- my point --
04-944 +++$+++ 33043 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And Congress did not --
04-944 +++$+++ 33044 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- my point is not --
04-944 +++$+++ 33045 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- seek a change.
04-944 +++$+++ 33046 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- my point is not that Congress in some specific sense, when it establishes a jurisdictional requirement, does not intend the occasional costs that the system has to bear by virtue of treating that requirement as jurisdictional. My point simply is that if we are in -- in a situation in which it is not clear whether it's jurisdictional or not, and the issue can be raised, in effect, up front effectively through summary judgment, and in the alternative, can be treated -- and -- as -- as an ineffective fact element, and in the alternative, can be left, in effect, forever to be raised as a jurisdictional element. The fact that it can be treated effectively up front is one reason to think that Congress would probably have wanted that fact issue to be regarded not as jurisdictional but as elemental so that it can be gotten out of the way and the parties are not going to go through entire trials only to have the whole thing upset by a belated jurisdictional argument. That's my only point.
04-944 +++$+++ 33047 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and, Justice Souter, I understand that point. However, I -- I tend to believe that this is, after all, an aberration case. Petitioner has suggested and the Solicitor General has suggested that businesses may tend to sandbag this issue. I simply do not believe that that is a realistic danger at all. In this case, quite frankly, the matter was overlooked, and that's how we ended up here. But in most cases, these small businesses are not going to be looking to spend a lot of money and go through a whole trial and then say, oh, well, I had my shot at it. Let me see. If -- if it doesn't work out now, I'll get out as a matter of subject matter jurisdiction. Most cases, small businesses are going to say, make this case go away from me as fast as you can. And so I don't think that that's really much of a danger to suggest that this is a pattern that's going to be repeated, especially after a decision from this Court. If this Court, as we believe that it should, comes down and holds that this is a matter of subject matter jurisdiction, I think parties will raise the matter and get it disposed of.
04-944 +++$+++ 33048 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In other words, it doesn't make a whole lot of difference.
04-944 +++$+++ 33049 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think --
04-944 +++$+++ 33050 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not sure that helps your case. (Laughter.)
04-944 +++$+++ 33051 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does it make a difference on the -- the -- does the categorization make a difference on the relevant time of the inquiry for the 15 employees? You have 16 employees when the discrimination takes place. By the time the lawsuit is filed, you've only got 14. Does it matter whether that's called jurisdiction or going to the merits?
04-944 +++$+++ 33052 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I believe that the -- the case law has uniformly held that you look at the time of the discrimination to determine the number of employees.
04-944 +++$+++ 33053 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even -- even if it's a question of jurisdiction.
04-944 +++$+++ 33054 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Even if it's a question of jurisdiction, yes, Your Honor. And I do think ultimately, though, it does matter because it does become a matter -- it doesn't matter for the plaintiff. It doesn't matter for the plaintiff whether or not it's a matter of subject matter jurisdiction or a matter of the merits because the bottom line is they're going to lose in either event.
04-944 +++$+++ 33055 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It certainly matters for plaintiffs in this situation.
04-944 +++$+++ 33056 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In this particular --
04-944 +++$+++ 33057 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It certainly matters from the defendant's point of view too. In many of these cases, it's not clear whether the number 15 has been -- as in this case, you have delivery drivers. You have owners whose wives are employed in the business.
04-944 +++$+++ 33058 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And, Your Honor, and I would urge that those kind of matters that need to be addressed are best addressed by the court as opposed to by a jury. I think to the matter of determining whether or not someone is a -- is an independent contractor --
04-944 +++$+++ 33059 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ From the -- from the point of view of a defendant who thinks I'm going to fight this case on the merits, but if I lose, I still have this ace up my sleeve.
04-944 +++$+++ 33060 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I just -- Your Honor, I simply do not believe a defendant would generally do that because, as I pointed out in my brief, the problem with that is if I'm representing the defendant, all right, and I'm going to defend my case on the merits and I know I got this 15 employee question here, I go to trial, let's suppose I win. I win at trial in Federal court. Subject matter jurisdiction can be raised by the plaintiff. Now, after I've won at trial, the plaintiff stands up and says, oh, this court didn't have subject matter jurisdiction. I get a do-over.
04-944 +++$+++ 33061 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That sounds like a good reason why a court should think long and hard about categorizing this as a question of subject matter jurisdiction.
04-944 +++$+++ 33062 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, but again, I -- I simply don't believe that that's going to be a problem that's going to come up. I think the importance of -- of categorizing this as subject matter jurisdiction is to avoid -- among other things, is adding another complicating factor to a jury trial because, if you make this a matter of the merits now -- counsel for petitioner describes in his brief extended hearings to determine the number of employees. We're now -- if you make it part -- just a part of the merits, now before you can get to the actual issue of discrimination, a jury is going to have to sit through and try to decide how many employees there were.
04-944 +++$+++ 33063 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it would be simultaneous. The jury -- the jury would have that question. Didn't I understand the attorney for the United States to say this is typical of what juries decide, was this person an independent contractor or an employee?
04-944 +++$+++ 33064 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I -- I heard that argument as well. All I can say is given the number of factors that are laid out under, for example, the Fifth Circuit law to determine whether or not somebody is an independent contractor or an employee, that seems to me to be more like the function of a judge than a jury because it's a matter of balancing of the relevant factors.
04-944 +++$+++ 33065 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Prendergast.
04-944 +++$+++ 33066 +++$+++ TRUE +++$+++ MR. PRENDERGAST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
04-944 +++$+++ 33067 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Schwartz, you have 3 minutes remaining.
04-944 +++$+++ 33069 +++$+++ FALSE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If there are no additional questions, I -- I have nothing further.
04-944 +++$+++ 33070 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you think -- do you think it's possible that -- that Indian tribes could be jurisdictional but an employer couldn't? I mean, it seems to me the two the questions are quite different. An Indian tribe is always an Indian tribe. Right? And you're -- you're excluding -- just as a prosecutor is always a prosecutor. You're excluding a whole category of people. But you're -- you're not excluding a category of employers here, are you? Because it's a -- it's a factual question, whether at the time of the alleged offense, the particular company was employing more than 15 people. It isn't that this company forever has immunity.
04-944 +++$+++ 33071 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I agree with that.
04-944 +++$+++ 33072 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you're -- you're not arguing for the Indian tribes here.
04-944 +++$+++ 33073 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As -- well, my -- I leave that to other people. (Laughter.)
04-944 +++$+++ 33074 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the -- I could -- in answer to that question, I can see an interesting scenario where a plaintiff working for a casino on an Indian tribe, there might be a question of who the actual employer is. And -- and that could come up and that would certainly involve some litigation.
04-944 +++$+++ 33075 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask you if the practice of law has returned to normal in New Orleans?
04-944 +++$+++ 33076 +++$+++ TRUE +++$+++ MR. SCHWARTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. It's -- it's a struggle somewhat for jury pools. The State court in particular, because it only covers Orleans Parish, is -- is really struggling with pulling in jurors. The Federal courts have a larger number of parishes to draw from. I'm actually still living in Atlanta.
04-944 +++$+++ 33077 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
04-9728 +++$+++ 33081 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument first this morning in Samson versus California. Mr. Long.
04-9728 +++$+++ 33083 +++$+++ FALSE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The search in this case was not based on individualized suspicion, and no other adequate safeguards limited the police officer's discretion to search Petitioner. For this reason, the search, which would not be permitted by virtually any other State or by the Federal Government, was unreasonable. The Court has reaffirmed many times that the Fourth Amendment does not permit the individual officer in the field to exercise unconstrained discretion to search. The Court has said that the Fourth Amendment is primarily directed at the evil -- it was primarily directed at the evil of general warrants and writs of assistance, and the evil of general warrants and writs of assistance was that they gave individual officers blanket authority to search where they pleased and placed the liberty of every man in the hands of every petty officer.
04-9728 +++$+++ 33084 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Long --
04-9728 +++$+++ 33085 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Long --
04-9728 +++$+++ 33086 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- with respect to liberty, as it -- it's not disputed, is it, that your client could have had his parole revoked even though the search was suspicionless? So, what we're talking about the difference between revocation of parole, on the one hand, and a separate criminal offense. Is that right?
04-9728 +++$+++ 33087 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, a parolee has conditional liberty. But, at the time of this search, Mr. Samson was on parole, there was no suspicion of any wrongdoing --
04-9728 +++$+++ 33088 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I thought that evidence seized could be introduced, could be a basis to revoke parole.
04-9728 +++$+++ 33089 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, well, the Court held, in the Scott case, that the exclusionary rule does not apply at parole revocation hearings. So, if there is an unreasonable search of a parolee that violates the Fourth Amendment, the evidence could not be admitted at a criminal trial, but it could be admitted at a parole revocation --
04-9728 +++$+++ 33090 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, the -- what the -- the consequence here is whether --
04-9728 +++$+++ 33091 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-9728 +++$+++ 33092 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- he will have his parole revoked --
04-9728 +++$+++ 33093 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-9728 +++$+++ 33094 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- or he will have a separate criminal offense.
04-9728 +++$+++ 33095 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I understand your question. In California, Justice Ginsburg, a nonviolent drug offense, the possession of a small amount of an illegal substance, is not a basis for revocation of parole. It is not possible to revoke parole in California for this offense. So, parole revocation would not have been a possibility here.
04-9728 +++$+++ 33096 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, Justice Ginsburg, I suppose, can pursue her own line of questioning, but let me ask you this, because I -- her question suggests this, to me at least. Suppose the parole officer said, "Now, look, I'm going to search you. If you don't consent, then I'm going to revoke your parole."
04-9728 +++$+++ 33097 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this, of course, was a police officer, not a parole officer.
04-9728 +++$+++ 33098 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I --
04-9728 +++$+++ 33099 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But if --
04-9728 +++$+++ 33100 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I -- my question was a parole officer, and I'll get to police officer next.
04-9728 +++$+++ 33101 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ All right. I think if a parole officer said, "You must consent to this search" --
04-9728 +++$+++ 33102 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ When you see the --
04-9728 +++$+++ 33103 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- "this particular search" --
04-9728 +++$+++ 33104 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- person on the street, et cetera, et cetera.
04-9728 +++$+++ 33105 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ "And, if you don't, I'll revoke your" -- I mean, the consent is not, in this case, first. I mean, California has said, the Supreme Court has said, parole, in the parole search condition, is imposed as a matter of law. Your hypothetical poses a question of, could there be knowing and voluntary consent to a search if the consequence of refusing is revocation of parole? I would argue, in that situation, that the consequences of refusal are so dire that, effectively, the parolee would have no real choice but to consent. So, it would be, in a sense, a coerced consent.
04-9728 +++$+++ 33106 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why are they dire? I mean, he's just back in the situation he would have been in, did he not comply with the conditions of his parole. I don't see that that's dire. He has a choice. He can stay in prison and --
04-9728 +++$+++ 33107 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-9728 +++$+++ 33108 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- and suffer the reduction of privacy there, which is much, much greater than being subjected to -- I mean, he -- he cannot even go to the toilet in privacy. Or he can go out on parole, subject to the condition that --
04-9728 +++$+++ 33109 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-9728 +++$+++ 33110 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that he --
04-9728 +++$+++ 33111 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I mean --
04-9728 +++$+++ 33112 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- he can --
04-9728 +++$+++ 33113 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-9728 +++$+++ 33114 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- be searched.
04-9728 +++$+++ 33115 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I have two answers to that, Justice Scalia. I mean, first, in California, you finish your prison sentence, and then parole is a separate period that happens. The California Supreme Court said, in People v. Guzman and other cases, parole is not a part of the sentence --
04-9728 +++$+++ 33116 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but it's --
04-9728 +++$+++ 33117 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in California.
04-9728 +++$+++ 33118 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- but it's also clear from the California statute that it is not a right, that it's a privilege, that you get the privilege of parole in exchange -- in exchange for agreeing to the conditions, one of which is that you can be searched.
04-9728 +++$+++ 33119 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's -- in California, every inmate gets parole. It's a matter of law. It's not a privilege -- in Morrissey against Brewer. The Court -- in other cases, the Court rejected the rights privilege distinction anyway.
04-9728 +++$+++ 33120 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ California statute says it's a privilege, doesn't it?
04-9728 +++$+++ 33121 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, in section 3067.
04-9728 +++$+++ 33122 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It does.
04-9728 +++$+++ 33123 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it is -- it is also a -- section 3000 of the California penal code says every prisoner gets parole. It is imposed on the prisoner as --
04-9728 +++$+++ 33124 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even if the --
04-9728 +++$+++ 33125 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a matter of law.
04-9728 +++$+++ 33126 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- prisoner -- oh, I thought that he can turn it down, and that some prisoners do, if --
04-9728 +++$+++ 33127 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-9728 +++$+++ 33128 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- if they decide that they don't want to be subjected to searches.
04-9728 +++$+++ 33129 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The California Supreme Court has held, in People v. Reyes, and in other cases cited in our brief, that, in California, parole is not a matter of choice, it is imposed as a matter of law.
04-9728 +++$+++ 33130 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is -- and you mean people are put out on the street when -- kicking and screaming when they say, "No, I want to stay in jail. I don't want to be" --
04-9728 +++$+++ 33131 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's --
04-9728 +++$+++ 33132 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- "searched. I would rather stay in jail"? And --
04-9728 +++$+++ 33133 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-9728 +++$+++ 33134 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- they are dragged out --
04-9728 +++$+++ 33135 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That --
04-9728 +++$+++ 33136 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- into the street. Is that what happens?
04-9728 +++$+++ 33137 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is what the California Supreme Court has said.
04-9728 +++$+++ 33138 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, I --
04-9728 +++$+++ 33139 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And what the statutes say is --
04-9728 +++$+++ 33140 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- I don't think so.
04-9728 +++$+++ 33141 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- the statutes say that parole is a -- is a transitional period, and that every inmate should undergo a period of parole. But coming back to your earlier question, the Court has said that the condition of a parolee is very different from the condition of a prisoner. The Court said that in Morrissey against Brewer. And the Court said, in Griffin, as to probationers, that while the Fourth Amendment rights of probationers -- and so, parolees, too, we concede -- are reduced, there are -- the State can go too far. And if the State exceeds --
04-9728 +++$+++ 33142 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but --
04-9728 +++$+++ 33143 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the permissible limits, it's a violation.
04-9728 +++$+++ 33144 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- their condition is very different, in a broad range of areas. They -- you give up First Amendment rights. For example, it's typical to have a condition of parole that you don't consort with known criminals or gang members. You -- often it says you must refrain from alcohol. Sometimes they say you can't go near particular places, if they think that's going to tempt you to return to a life of crime. Those are all First Amendment rights that are sacrificed while you're on parole. Why is this any different?
04-9728 +++$+++ 33145 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there are many rights that are sacrificed. What the Court has said about the Fourth Amendment rights is, because parolees have conditional liberty, they will have a reduced, but not eliminated, Fourth Amendment protection --
04-9728 +++$+++ 33146 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about a drug -- what if you're convicted of a drug offense, you're on parole, and one of the conditions is, every week you have to go in for a drug test?
04-9728 +++$+++ 33147 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that --
04-9728 +++$+++ 33148 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you --
04-9728 +++$+++ 33149 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that would be --
04-9728 +++$+++ 33150 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- do you -- is that acceptable?
04-9728 +++$+++ 33151 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be different in several respects, Mr. Chief Justice. First of all, there would not be discretion. You wouldn't have the individual officer deciding --
04-9728 +++$+++ 33152 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it would be a Fourth Amendment right that you would be giving up --
04-9728 +++$+++ 33153 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. And --
04-9728 +++$+++ 33154 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that you would otherwise have if you weren't on parole.
04-9728 +++$+++ 33155 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I want to be clear, we are not -- we're arguing there is a broad spectrum of searches that States can undertake of parolees, and I'm, by no means, arguing today that all of them, or even most of them, are unconstitutional. This is a --
04-9728 +++$+++ 33156 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What would you say about a condition that you must -- not a regular drug test -- you just have to submit yourself to a drug test whenever a police officer asks you to?
04-9728 +++$+++ 33157 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you know, that would be much narrower, because it would simply be a drug test. I think it would have the problems of -- the officer would have complete discretion. If it were like the California --
04-9728 +++$+++ 33158 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but it's -- I mean, the point --
04-9728 +++$+++ 33159 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you think it would valid? That's what I was asking you.
04-9728 +++$+++ 33160 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think, because that's a much narrower test, that that could pass muster if -- but I would think there really ought to be some guidance to the officer. I think our ultimate submission today is --
04-9728 +++$+++ 33161 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, so that a --
04-9728 +++$+++ 33162 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- this is so --
04-9728 +++$+++ 33163 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- so that a burglar could be searched for burglar tools --
04-9728 +++$+++ 33164 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-9728 +++$+++ 33165 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- but not for drugs? And the drug addict can be searched for drugs, and not burglar tools?
04-9728 +++$+++ 33166 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it were -- if it were tied to the crime that the parolee has committed, you know, that would give it some limitation. This is a completely unlimited search, for anything, any crime.
04-9728 +++$+++ 33167 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But Justice Stevens's question highlights the point that you criticize about: the randomness of it is often a critical element. I suppose it makes much more sense to say you're subject to a random drug test than that you have to come in at a scheduled time, when you -- presumably, you could refrain from using drugs prior to the test. And, to some extent, it's the same, even if you're not talking about a drug test.
04-9728 +++$+++ 33168 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in all --
04-9728 +++$+++ 33169 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The search is only going to be effective if it's not announced or --
04-9728 +++$+++ 33170 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in --
04-9728 +++$+++ 33171 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- scheduled.
04-9728 +++$+++ 33172 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and in this Court's suspicionless search cases, you can have a random test where you draw names at random. There's some other process that doesn't leave it up to each individual officer to decide who gets the drug test or which car to stop to check the driver's license and registration. What the Court has consistently held is really at the core of the Fourth Amendment is this notion of: the individual officer in the field has complete discretion to decide, "Do I search this person? Do I not? What's the scope of the search? What do" --
04-9728 +++$+++ 33173 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are you relying --
04-9728 +++$+++ 33174 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- "I search for?"
04-9728 +++$+++ 33175 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- on the difference between -- you said "officer in the field." Would this be okay if it had been his parole officer?
04-9728 +++$+++ 33176 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think --
04-9728 +++$+++ 33177 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The parole officer was walking along the street, saw this guy, and said, "I'm going to search you."
04-9728 +++$+++ 33178 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it's a very different set of circumstances if we have a parole officer. This Court has said, at least twice, in Griffin and in Scott, that a parole officer has a different function. They are not in an adversarial, or a purely adversarial, relationship. They often think of the parolee or the probationer as a client. They're trying to see that the person succeeds. In some sense, the parole officer fails when the parolee goes back to prison. The parole -- the parole officer can act on their entire knowledge and experience with the client, or the parolee. So, all of that makes a difference. And the Court has noted that several times.
04-9728 +++$+++ 33179 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ When he's in prison, is there any problem about the prison guards intruding upon his privacy, willy-nilly, whenever they choose?
04-9728 +++$+++ 33180 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- as I understand the Court's --
04-9728 +++$+++ 33181 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, walking --
04-9728 +++$+++ 33182 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- holding --
04-9728 +++$+++ 33183 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- by his cell, which is always opened, and checking in on him to see what's -- what he's doing.
04-9728 +++$+++ 33184 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As I understand the Court's holding in Hudson against Palmer, the Fourth Amendment does not apply in a prison cell. And --
04-9728 +++$+++ 33185 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, he's better off on parole than -- well, at least no worse off on parole than he would be when he was in prison.
04-9728 +++$+++ 33186 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Your Honor, that's not the way this Court has analyzed the Fourth Amendment issues. It's a different situation. It is conditional liberty. It's the -- that sort of active grace theory, or right, privilege, distinction, or greater power includes the lesser, all those arguments have been rejected, in --
04-9728 +++$+++ 33187 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are --
04-9728 +++$+++ 33188 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Morrissey against Brewer, and Gagnon --
04-9728 +++$+++ 33189 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What --
04-9728 +++$+++ 33190 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- against Scarpelli.
04-9728 +++$+++ 33191 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not --
04-9728 +++$+++ 33192 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- what do you make of --
04-9728 +++$+++ 33193 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- by me. No, please.
04-9728 +++$+++ 33194 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's --
04-9728 +++$+++ 33195 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What do you make of the pragmatic argument that seems to cut through all of your objections? The pragmatic argument is both in favor of complete discretion and of suspicionless search, that the in terrorem effect of knowing that these searches can occur at any moment, in fact, discourages recidivism.
04-9728 +++$+++ 33196 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-9728 +++$+++ 33197 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's your response to that?
04-9728 +++$+++ 33198 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I have a pragmatic argument, and then I have an argument just based on the Fourth Amendment. Pragmatically, no other State, as far as we can tell, and not the Federal Government, authorizes this kind of search; that is, blanket suspicionless discretionary searches by police officers.
04-9728 +++$+++ 33199 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Apart from --
04-9728 +++$+++ 33200 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So --
04-9728 +++$+++ 33201 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Apart from the lack of popularity of the State's view --
04-9728 +++$+++ 33202 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-9728 +++$+++ 33203 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- do we have -- do we have any empirical evidence that bears on the in terrorem argument?
04-9728 +++$+++ 33204 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- well, the empirical evidence is that all the other States don't seem to be having a harder time --
04-9728 +++$+++ 33205 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, I --
04-9728 +++$+++ 33206 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- with recidivism.
04-9728 +++$+++ 33207 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I realize that. But, beyond that, do we have any empirical evidence, one way or the other?
04-9728 +++$+++ 33208 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the California -- I think that's a pretty powerful demonstration, but we do have, beyond that, empirically, California was with all the other States until the People against Reyes decision. Now they've moved to suspicionless searches. They seem to have about the same rate of recidivism --
04-9728 +++$+++ 33209 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I take it --
04-9728 +++$+++ 33210 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- as they --
04-9728 +++$+++ 33211 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the answer is --
04-9728 +++$+++ 33212 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- did before.
04-9728 +++$+++ 33213 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- we don't have any empirical evidence, one way or the other, apart from the fact that California stands out in its system. Is that correct?
04-9728 +++$+++ 33214 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I'm -- think I'm offering you evidence that counts as empirical in my mind, but --
04-9728 +++$+++ 33215 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, I --
04-9728 +++$+++ 33216 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- apparently it's not --
04-9728 +++$+++ 33217 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I know it, but I've said, about three times, that I want to get beyond the peculiar position of California to any other empirical evidence that cuts for you or against you. And I take it there really isn't --
04-9728 +++$+++ 33218 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there -- we have a footnote. There is a brief submitted by a Stanford law professor, and we have at least a footnote in our brief. There is some social science research that suggests that this more intensive supervision is really not effective, if you look at broad numbers. I mean, I think you will catch some additional people. I mean, it happened in this case. But if you step back and look at the overall effects, it's not -- it's not particularly helpful --
04-9728 +++$+++ 33219 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why --
04-9728 +++$+++ 33220 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well --
04-9728 +++$+++ 33221 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why, if we're going to catch some additional people, is that not sufficient? That is, why is it unreasonable, say, not for law professors, but business school professors, management consultants, to say, "You have a lot of prisoners in California, hundreds of thousands -- I don't know, maybe more than 100,000 -- and we'll tell the Legislature that they can cut the terms, save money, release them early, but we want to have management checks. And the management checks are, you might be searched at any time. And we catch a few. And that's helpful." Now, if the --
04-9728 +++$+++ 33222 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-9728 +++$+++ 33223 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- State decides that, what's unreasonable about it? "They're" --
04-9728 +++$+++ 33224 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-9728 +++$+++ 33225 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- "letting the people out earlier than they otherwise would" --
04-9728 +++$+++ 33226 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because --
04-9728 +++$+++ 33227 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- says the Legislature.
04-9728 +++$+++ 33228 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because, Justice Breyer, it has to be a balancing analysis, and --
04-9728 +++$+++ 33229 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what's on the other side? The other side --
04-9728 +++$+++ 33230 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-9728 +++$+++ 33231 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- is, you'd rather not have policemen search you, but your alternative is going to be in jail.
04-9728 +++$+++ 33232 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I mean, the other side is a search condition that says you have -- you could be searched at any time, any place, by any police officer for evidence of any crime, is a breathtakingly broad invasion of privacy.
04-9728 +++$+++ 33233 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, of course, that's how it happens when he's in prison.
04-9728 +++$+++ 33234 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but he has come out of prison. The State has seen fit to release him on parole into society. He has conditional liberty. And the Court --
04-9728 +++$+++ 33235 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But there is a breathtakingly high probability that he is committing a crime. The statistics cited in the Government's brief say that in an April 2001 report prepared by the California Criminal Justice Statistics Center, 68 percent of adult parolees are returned to prison -- 68 percent; 55 percent, for a parole violation; and 13 percent for the commission of a new felony offense. I mean, it seems to me a breathtaking statistic like that may call for breathtaking --
04-9728 +++$+++ 33236 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-9728 +++$+++ 33237 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- measures to try to police the matter closely.
04-9728 +++$+++ 33238 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is a very serious problem. We don't want to minimize it. I mean, it is a fact that many -- many parolees -- and this is true especially in California -- end up being returned for technical violations, like not showing up to meetings with parole officers. Some of the offenses are not as serious as others. But it is a very serious problem. We recognize that. But what the Court has said is that the gravity of the problem cannot justify any means. There has to be a balancing of the invasion of privacy against the State's need to undertake this. And coming back to my second answer to the question you asked several minutes ago, Justice Scalia, I mean, ultimately this search is a -- it's a general warrant. It's a writ of assistance. It's limited to parolees, but if the Court is going to stand by what it has said in Griffin and other cases, that their parolees and probationers have some modicum of Fourth Amendment rights -- reduced, we recognize that -- this is -- this is the core of what the --
04-9728 +++$+++ 33239 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the --
04-9728 +++$+++ 33240 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- framers of --
04-9728 +++$+++ 33241 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- California --
04-9728 +++$+++ 33242 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the Fourth Amendment prohibited.
04-9728 +++$+++ 33243 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The California Supreme Court said that the Fourth Amendment applied to these searches, but it only protected in a limited way, along the same lines as we said in Griffin. And the standard they applied was, it protected against arbitrary or harassing or capricious searches --
04-9728 +++$+++ 33244 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but --
04-9728 +++$+++ 33245 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- which seems to go to your argument, which is centered around the unbridled discretion of the officer. And the California Supreme Court is saying it's not unbridled.
04-9728 +++$+++ 33246 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is their answer to my argument, and I want to be very clear about "arbitrary, capricious, and harassing." That's the California Supreme Court's standard. So, of course, they get to define it. And they have not defined it the way this Court perhaps would define "arbitrary." It's not arbitrary, capricious, or harassing if it has a permissible law enforcement purpose. So, as long as the officer says, "Well, I don't have any reason to think there's evidence of any crime here, but that's what I'm looking for. Perhaps there's evidence of crime" --
04-9728 +++$+++ 33247 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's --
04-9728 +++$+++ 33248 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's enough.
04-9728 +++$+++ 33249 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- fine. But it turns out he stops the guy every hour of the day, then he has a pretty strong case that this is for harassment, and it's not --
04-9728 +++$+++ 33250 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-9728 +++$+++ 33251 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- for the special law enforcement --
04-9728 +++$+++ 33252 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, and --
04-9728 +++$+++ 33253 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- need that accompanies releasing parolees.
04-9728 +++$+++ 33254 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I take it the Fourth Amendment itself would prohibit that sort of thing. But it -- you couldn't -- you couldn't justify a general warrant by saying, "Well, yes, the officer can search anybody, without any suspicion, and he can choose." But it -- you know, the search can't happen too often, or it can't last too long. That would not be -- and you -- and you -- similarly, it would not be an answer to say, "Well, as long as he's looking for evidence of crime."
04-9728 +++$+++ 33255 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but your point was that this is the core of the Fourth Amendment, and they're taking away all of the protection and leaving it to the unbridled discretion. And that turns out to be not the case. Under the law that authorizes the procedure, the California Supreme Court interpretation is that the Fourth Amendment provides protection against harassment or arbitrary and --
04-9728 +++$+++ 33256 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-9728 +++$+++ 33257 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- capricious searches.
04-9728 +++$+++ 33258 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I mean, my argument is that what is left of the Fourth Amendment under the California approach is not the core. It's the far periphery. There has never been a case -- and we were able to find over a hundred, and perhaps over 200; it depends on how you count -- of cases where parolees or probationers have said, "You know, this search was arbitrary or capricious or harassing." It is always rejected, for the same reason it was in this case. The Court says, "Well" --
04-9728 +++$+++ 33259 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then which way do you think that cuts? There's --
04-9728 +++$+++ 33260 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It --
04-9728 +++$+++ 33261 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- never been a case of a harassing search of a parolee.
04-9728 +++$+++ 33262 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-9728 +++$+++ 33263 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, that's what -- - or 200 cases in the --
04-9728 +++$+++ 33264 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
04-9728 +++$+++ 33265 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- in --
04-9728 +++$+++ 33266 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I think it cuts in the direction that it is an empty, vacuous standard. It's a standard --
04-9728 +++$+++ 33267 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why?
04-9728 +++$+++ 33268 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's always --
04-9728 +++$+++ 33269 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why? If it -- if it -- if it -- it doesn't go to the suspicionless character of the search, but it does say it has to be reasonable in time, place, or manner.
04-9728 +++$+++ 33270 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-9728 +++$+++ 33271 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And maybe the --
04-9728 +++$+++ 33272 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-9728 +++$+++ 33273 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- officers are reasonable in time, place --
04-9728 +++$+++ 33274 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-9728 +++$+++ 33275 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- or manner.
04-9728 +++$+++ 33276 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- but it's -- it had -- there has never been a case in which a court has rejected a parolee search as unreasonable in time, place, or manner. And you could --
04-9728 +++$+++ 33277 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How many times has it been challenged --
04-9728 +++$+++ 33278 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As --
04-9728 +++$+++ 33279 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- on the --
04-9728 +++$+++ 33280 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- we said -- we found over a hundred cases in which it's been challenged in the California courts. And it --
04-9728 +++$+++ 33281 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well --
04-9728 +++$+++ 33282 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I mean, if you think about it, if the search is, say, at night, the argument is going to be -- well, if we said we'd not -- "never going to search you at night," then you would commit crimes at night. We had a very extreme case in our brief about body-cavity searches. And they said, "Well, that -- of course, that" -- you know, the suggestion was, "Of course, that would be too extreme." But you could see an argument if parolees and probationers knew that that was off limits, that -- you know, that would become a -- -
04-9728 +++$+++ 33283 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You say there was a case in which, without any special reason, they did --
04-9728 +++$+++ 33284 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Let --
04-9728 +++$+++ 33285 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- a cavity search --
04-9728 +++$+++ 33286 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, let me be -- I am not aware of any actual case. We posited that. We said -- you know, because you don't need to know anything about the parolee, except he's on parole, and you can search for evidence of any crime. You don't need any suspicion that -- so, you could have somebody, a sort of white-collar criminal, or you'd check someone who's written a bad check. And if you say, "Well, I think perhaps you're involved in drugs. Maybe you're one of these balloon-swallowers" -- - you don't need any actual reason to think that's happening, you can simply say, "I want to investigate that." And the way -- you have to investigate that by x rays or something else quite intrusive.
04-9728 +++$+++ 33287 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The California Supreme Court may -- might well hold that it's arbitrary to conduct such an extreme search as a body-cavity search, or to -- - I don't know --
04-9728 +++$+++ 33288 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-9728 +++$+++ 33289 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- to decide to search the person when he's in the men's room or something. I mean, there are --
04-9728 +++$+++ 33290 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
04-9728 +++$+++ 33291 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- there are a lot of limitations that the California court --
04-9728 +++$+++ 33292 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They might, and --
04-9728 +++$+++ 33293 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- could put on it, within the context of harassment or --
04-9728 +++$+++ 33294 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But our principal submission, Justice Scalia -- I mean, if California said, "We have a terrible problem with crime in California; and, therefore, we're authorizing every police officer to search every person anytime, anywhere, for any crime," that would be, I would submit, the clearest sort of Fourth Amendment violation you could imagine. It would be a general warrant or a writ of assistance. It couldn't possibly be justified by saying, "Well, if it gets too extreme, if it gets into body-cavity searches, we won't allow it." We are talking about parolees, yes. Their Fourth Amendment rights are reduced, yes. We recognize that. But saying that this sort of absolutely unguided discretion --
04-9728 +++$+++ 33295 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the reason --
04-9728 +++$+++ 33296 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- there's no sort of --
04-9728 +++$+++ 33297 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the reason that people, I think, are saying that is because they have a lot of prisoners, they're trying to create a category of people who don't have to stay in prison, where they have no rights. And the real question is, can California, in trying to create this interim category, reduce the Fourth Amendment right in the way you describe?
04-9728 +++$+++ 33298 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They --
04-9728 +++$+++ 33299 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course they can't do it, but the justification is not that there is something bad about this particular individual or he's in some kind of limbo. The reason is that there's a policy tending towards release, which California has decided they want to introduce this as a condition. Now --
04-9728 +++$+++ 33300 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-9728 +++$+++ 33301 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- and so, what -- and the question is, what's unreasonable about that?
04-9728 +++$+++ 33302 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what's unreasonable about it is that it goes so far in the direction of eliminating the Fourth Amendment rights of people who are not prisoners -- they are -- they have conditional liberty -- that it is simply not consistent with the Fourth Amendment. And on the empirical side, California is an outlier. All the other States --
04-9728 +++$+++ 33303 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I -- may I ask you --
04-9728 +++$+++ 33304 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and the Federal Government --
04-9728 +++$+++ 33305 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- this question? Part of your appeal of your case is, you talk about the corporate offender or tax dodger, something like that. It seems quite unreasonable, I agree with you. But what if you defined the class much more narrowly and limit it to people who have been convicted of violent crimes of a very serious nature and so forth, and said, as to those, they can have a totally suspicionless search? Would that --
04-9728 +++$+++ 33306 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-9728 +++$+++ 33307 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- be permissible?
04-9728 +++$+++ 33308 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I -- one of the things we wanted to make -- I think there are many things that States can do. They could certainly --
04-9728 +++$+++ 33309 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I wonder whether --
04-9728 +++$+++ 33310 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- there's the possibility of --
04-9728 +++$+++ 33311 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- whether you think they could do that.
04-9728 +++$+++ 33312 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's the possibility of individual determinations, based on the individual circumstances. If you went --
04-9728 +++$+++ 33313 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what I'm --
04-9728 +++$+++ 33314 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- category by --
04-9728 +++$+++ 33315 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I wanted to see if there is a way that the class could be defined narrowly, because I want to ask the other side if they would allow the search for any ex-felon, for example. You could divide it in a way that seemed obviously too broad. But is --
04-9728 +++$+++ 33316 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
04-9728 +++$+++ 33317 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- there a narrower class -- -
04-9728 +++$+++ 33318 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-9728 +++$+++ 33319 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that you think would be acceptable?
04-9728 +++$+++ 33320 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think this could be much narrower. And, in my view, it would become a much closer constitutional question if it were limited to certain crimes where the legislature or the State made a finding that there's a particular need to have --
04-9728 +++$+++ 33321 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Say you were a --
04-9728 +++$+++ 33322 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- suspicionless --
04-9728 +++$+++ 33323 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- terrorist, for example.
04-9728 +++$+++ 33324 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
04-9728 +++$+++ 33325 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's just limited to terrorists, convicted terrorists.
04-9728 +++$+++ 33326 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, perhaps convicted terrorists. You know, that -- and it -- that's very different from what we have here, because --
04-9728 +++$+++ 33327 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about drug offenders, given the high rate of recidivism?
04-9728 +++$+++ 33328 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- you know, we -- I think you would have to see the facts of that case, but if they made a finding that, "Because of the nature of drug offenses, we need suspicionless searches rather than simply reasonable suspicion, and we need police officers, not parole officers" -- and there could be other regulations. The Federal regulations, we think, are a model, really. They have lots of limitations on --
04-9728 +++$+++ 33329 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Long, is it -- is it fair to compare California to other States? The assumption would have to be that other States grant parole as liberally as California does. Maybe California has made the decision, "We have too many people in prison. We're going to let a lot of them out, but we're going to keep them on a very tight leash." Why shouldn't it be able to do that? To have tighter controls, but let out many more people on parole, which is -- which is exactly what I think they're doing.
04-9728 +++$+++ 33330 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, and I -- I think they can have tighter controls, Your Honor. They can -- they can have -- they could have -- they could make this a special condition of parole --
04-9728 +++$+++ 33331 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But my only --
04-9728 +++$+++ 33332 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- rather than a general condition --
04-9728 +++$+++ 33333 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- point is --
04-9728 +++$+++ 33334 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of parole.
04-9728 +++$+++ 33335 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the fact that other States aren't as tight doesn't prove anything, because other States --
04-9728 +++$+++ 33336 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-9728 +++$+++ 33337 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- may not be --
04-9728 +++$+++ 33338 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
04-9728 +++$+++ 33339 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- be trying to do the same thing --
04-9728 +++$+++ 33340 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I mean --
04-9728 +++$+++ 33341 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- to empty their prisons --
04-9728 +++$+++ 33342 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court has said, generally, that what the Court has found to be reasonable for one State is reasonable for all. And when a practice is not well established -- and here, it's far from well established; California's virtually unique -- the Court has taken that into account for --
04-9728 +++$+++ 33343 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose you were in a halfway house, and the State says, "We're creating a status. One is, you're a prisoner. Another is, you're a halfway house. Another is, on your -- parole. But we want to subject you to suspicionless searches at -- in all three stages -- prison, halfway house, parole." Could they do it for the halfway house?
04-9728 +++$+++ 33344 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they might -- halfway houses, as I understand it, Justice Ginsburg, are largely now a thing of the past. But if the idea is you would actually be in a custody situation at night, perhaps in lockdown, then perhaps Hudson against Palmer would come into play --
04-9728 +++$+++ 33345 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ This person goes --
04-9728 +++$+++ 33346 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- which --
04-9728 +++$+++ 33347 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- out to work, comes back at the end of the day, and is checked in.
04-9728 +++$+++ 33348 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And so, your hypothetical is, could there be suspicionless searches by --
04-9728 +++$+++ 33349 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, while the --
04-9728 +++$+++ 33350 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- police officers --
04-9728 +++$+++ 33351 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- while the --
04-9728 +++$+++ 33352 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- at work?
04-9728 +++$+++ 33353 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The person who is in this semi-custody state, he's going to work, and, while he's at his workplace, the police officer shows up and says, "I'm going to pat you down, and then I'm going to" --
04-9728 +++$+++ 33354 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's --
04-9728 +++$+++ 33355 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- "see if you have drugs."
04-9728 +++$+++ 33356 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's a -- it's a harder case. Again, our bottom line is, there would need to be some limitations on that individual officer's discretion. That's the core of the Fourth Amendment. If there are no further questions, I'd like to reserve the balance of my time.
04-9728 +++$+++ 33357 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Long. Mr. Niver, we'll hear now from you.
04-9728 +++$+++ 33359 +++$+++ FALSE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it -- may it please the Court: Alarmed by the State rate of recidivism and revocation of the more than 100,000 parolees, California enacted a statute which authorized the search of a parolee based solely on his status as a parolee. We submit that such a search is reasonable under the Fourth Amendment. As this Court held recently in United States versus Knights, to determine the validity of the search we balance the State's need to search against the privacy interest affected. Here, the need is overwhelming, and the privacy interest is dramatically reduced. Turning first to Petitioner's expectation of privacy, it is greatly diminished. Even if it exists, it is far less than that enjoyed by the average law-abiding citizen. No one outside the confines of a prison has a lesser expectation of privacy than a parolee.
04-9728 +++$+++ 33360 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why is that? Doesn't that kind of beg the question? I mean, if we say he's got the normal Fourth Amendment rights, his -- I mean, the expectation-of-privacy analysis seems to me to be totally circular.
04-9728 +++$+++ 33361 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's what the --
04-9728 +++$+++ 33362 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You say he doesn't have an expectation of privacy, so it's not protected. Well, if we say he does have a -- if we say it is protected, then he does have an expectation of privacy.
04-9728 +++$+++ 33363 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, this Court spoke to that in Knights and said, unanimously that the -- in Knights, it was a probation condition, but I think that it -- obviously, the same analysis applies here -- that the imposition or acceptance of a -- of a search condition by a parolee or a probationer results in the severely diminished expectation of privacy enjoyed by the parolee or probationer. And this Court said that unanimously in Knights.
04-9728 +++$+++ 33364 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, Knights involved a situation where reasonable suspicion was required, so it addressed the problem that Mr. Long has of unbridled discretion. You still had to have an articulable reasonable suspicion with respect to the individual.
04-9728 +++$+++ 33365 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is true, Your Honor, but the threshold question was whether he had an expectation of privacy at all, or to the -- the extent of that expectation of privacy. And the Court, in Knights, before it discussed the balance, had to identify the factors in the balance. In terms of the probationer's interest in that case, by virtue of the search condition, this Court said that his interest in -- his expectation of privacy was severely diminished, and left open specific --
04-9728 +++$+++ 33366 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why -- and why was his expectation of privacy severely diminished?
04-9728 +++$+++ 33367 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because of the parole's -- excuse me -- the probation search that was imposed upon him by virtue of the --
04-9728 +++$+++ 33368 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Because of the very practice that's being challenged here today, right?
04-9728 +++$+++ 33369 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, yes.
04-9728 +++$+++ 33370 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Because he saw something -- you -- he signed something that said, "You're subject to searches." Well, that's what is at issue. It seems to me that it's -- I guess I've said it before, he's -- it's begging the question to say, "You can do this, because he has a diminished expectation of privacy." How far do you push this? Can you have parolees come in and take a lie-detector test every week? Do they have -- do they have diminished expectation with respect to their Fifth Amendment rights?
04-9728 +++$+++ 33371 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With regard to the Fifth Amendment rights, if they are not in custody, then -- or even if they are -- I don't think that that would necessarily -- the -- any expectation of privacy would preclude the imposition of a lie-detector test, no.
04-9728 +++$+++ 33372 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Was that a yes, you can have them --
04-9728 +++$+++ 33373 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
04-9728 +++$+++ 33374 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You can.
04-9728 +++$+++ 33375 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. But in this case, the --
04-9728 +++$+++ 33376 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is --
04-9728 +++$+++ 33377 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What about --
04-9728 +++$+++ 33378 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is --
04-9728 +++$+++ 33379 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What about --
04-9728 +++$+++ 33380 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that right? I mean, even in prison, I -- what -- I'm not sure you could even do that if they were still in prison. Can you subject people in prison --
04-9728 +++$+++ 33381 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, of course, that would not be a Fourth Amendment claim.
04-9728 +++$+++ 33382 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. No, I --
04-9728 +++$+++ 33383 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would be a different --
04-9728 +++$+++ 33384 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The Chief Justice was trying to get out of the Fourth Amendment into the Fifth.
04-9728 +++$+++ 33385 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That failing -- well, in terms of the lack of a precedent from this Court, you know, at this point we can only speculate, but it seems to me that if a person can be required to submit to a drug test by virtue of the status as a parolee or probationer, I don't think that it is an extravagant step to say that they could be required to submit to an interview.
04-9728 +++$+++ 33386 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would you say the same thing if the offense he had committed was tax evasion or price-fixing or speeding? Would the -- would a person on parole for any one of those offenses have -- be subject to the same risk of a suspicionless search? And would it be justified?
04-9728 +++$+++ 33387 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Suspicionless search?
04-9728 +++$+++ 33388 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
04-9728 +++$+++ 33389 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Where we're back to --
04-9728 +++$+++ 33390 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- applying this statute to --
04-9728 +++$+++ 33391 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-9728 +++$+++ 33392 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- a price-fixer, tax-evader, speeder. Do you think it's justified?
04-9728 +++$+++ 33393 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If he's on parole, Your Honor, if he's -- look, this applies to parolees in California who have been convicted of felonies, served time in prison, and have been --
04-9728 +++$+++ 33394 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if it's to be --
04-9728 +++$+++ 33395 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- released on parole.
04-9728 +++$+++ 33396 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- applied to the tax offender and so forth, how about just applying it to all ex-felons? Would that be permissible?
04-9728 +++$+++ 33397 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ On parole, or not on --
04-9728 +++$+++ 33398 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, just the very fact that there's -- they're an ex-felon. And let the person know, at the time of his discharge from prison, that this is one of the things that the State is going to exact from you as a punishment for your crime.
04-9728 +++$+++ 33399 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the person is on parole, the answer --
04-9728 +++$+++ 33400 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I'm saying --
04-9728 +++$+++ 33401 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh --
04-9728 +++$+++ 33402 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- he's not on parole.
04-9728 +++$+++ 33403 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- he's no longer on parole? Than the entire balance changes. The reduction of the expectation of privacy --
04-9728 +++$+++ 33404 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I'm hypothesizing a case in which the law will destroy the expectation of privacy, because it will provide that all ex-felons are subject to search. So, they would know, the same as a parolee now knows, he's subject to search. Would that be valid?
04-9728 +++$+++ 33405 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My answer to that is, it would not be valid, Your Honor, because a person, having served his time on parole, the State's overwhelming interest in supervision has ended. The State has determined that that person, having successfully completed his period of parole --
04-9728 +++$+++ 33406 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- so you don't --
04-9728 +++$+++ 33407 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Most --
04-9728 +++$+++ 33408 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- rely on --
04-9728 +++$+++ 33409 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Most States --
04-9728 +++$+++ 33410 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the fact that --
04-9728 +++$+++ 33411 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- don't let felons vote. I mean, that's a punishment that they impose after they're out of prison.
04-9728 +++$+++ 33412 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but this is not -- yes, Your Honor, but this is really not about punishment, this is about supervision. And if a parolee has successfully completed this parole, has been discharged from parole, then the balance --
04-9728 +++$+++ 33413 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But then we're not relying on the elimination of the expectation of privacy, because, under my hypothetical statute, the ex-felon would know he's subject to it. So, it has to be something other than the absence of an expectation of privacy. Is that correct?
04-9728 +++$+++ 33414 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not -- a person who is no longer on parole, there is no longer the overwhelming State interest in supervision. The balance changes. Our position would be that that would not be a permissible search.
04-9728 +++$+++ 33415 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It seems to me that the principal difference, Mr. Niver, is that when he's on parole, it's in lieu of being in jail. If that's not the difference, you don't persuade me. He has voluntarily accepted the parole in exchange for his getting out of jail. And he'd be in worse condition if he were in jail. That's what, seems to me, makes the difference.
04-9728 +++$+++ 33416 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's -- I think that's exactly right, Your Honor. The ex-parolee, no longer on parole, is no longer in custody of the -- of the California Department of Corrections. There is no longer an overwhelming need to supervise the person, who, having successfully completed parole, is presumptively not the threat to society that he was that he -- when he was a parolee. The balance changes, and such a condition -- that is to say a suspicionless search of an ex-parolee, I think would offend the Fourth Amendment.
04-9728 +++$+++ 33417 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Niver --
04-9728 +++$+++ 33418 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what do you achieve by this system that you have that you couldn't achieve by a system that more carefully worked out the rules and conditions of a random search? I mean, rules, so that you avoid the totally discretionary element. And if you want to have management consultants, as I was imagining, have 'em. They're not just going to tell you, "Go and ask anybody to search anytime he wants." They'll have a system worked out. So, why not at least require you to think it through that much? And, otherwise, it is unreasonable.
04-9728 +++$+++ 33419 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we have disputed Petitioner's position that this is a search, although suspicionless, that it is -- that discretion is not circumscribed is our position. And it is, because --
04-9728 +++$+++ 33420 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, are there manuals -- are there any -- here is the cop on the beat.
04-9728 +++$+++ 33421 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-9728 +++$+++ 33422 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ He sees someone that he knows is a parolee. Is there any instruction that he's been given so that his discretion can be guided instead of rudderless? In practice in California, are all --
04-9728 +++$+++ 33423 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In -- I'm sorry, Your Honor.
04-9728 +++$+++ 33424 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes. What is the practice?
04-9728 +++$+++ 33425 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In practice, the -- a search -- a parole search may not be arbitrary, capricious, or conducted solely for the purpose of harassing --
04-9728 +++$+++ 33426 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm asking you about what instruction, what training, if you know, are officers given? Or are they given no training, just the law that says, "You can search any parolee"?
04-9728 +++$+++ 33427 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, they are not told that they may search any parolee, Your Honor. Rather, they are told that the search must be to rehabilitate, reform, or have some other law enforcement purpose. And they -- -
04-9728 +++$+++ 33428 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. The officer says, "I'm searching to see whether the person has any evidence of crime on him." For example, whether he has any drugs on him. Law enforcement purpose: supervisory, I suppose. They want to know whether their -- whether their parolees are committing offenses. And yet, that reason would apply to everyone virtually all the time. So, it doesn't seem to be a limitation at all. What -- am I -- am I missing something?
04-9728 +++$+++ 33429 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does apply -- it is a limitation. It is not a limitation that would protect the expectation of privacy of a nonparole --
04-9728 +++$+++ 33430 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, how does the limitation work? The guy is on 1st Street, and an officer says, you know, "I recognize this person is a parolee, and I have a law enforcement objective. Is the person committing a crime? Is the -- is the person a recidivist? Is the person violating parole?" So, he searches him. The person gets to 2nd Street, another officer does the same thing. Three hours later, a third officer does the same thing. In each case, it seems to me, their justification would not fall afoul of the arbitrary, capricious, or harassment standard. It's not coordinated. They have a -- both a parole and a law enforcement objective. Why is there any limitation, then, on the right to search?
04-9728 +++$+++ 33431 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If these are, as I understand Your Honor's hypothetical, three independent searches -- -
04-9728 +++$+++ 33432 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Uh-huh.
04-9728 +++$+++ 33433 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to the extent that that could happen, and I suppose it could, the -- again, the limitation is it be, as Your Honor states, for a valid law enforcement purpose, and it would require --
04-9728 +++$+++ 33434 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. No, but let's get behind the rhetoric. Is there any reason my hypothetical could not, in fact, turn out to be true?
04-9728 +++$+++ 33435 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is no --
04-9728 +++$+++ 33436 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Apart from the unlikelihood of all those police officers out there. But, leaving that aside, is there -- is there any reason, in the standard, that my hypothetical could not be true?
04-9728 +++$+++ 33437 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, no, there is no reason, but it would -- it requires more than testimony by the officers. If the officers at -- each testified that they conducted the search, they're -- also requires a finding of fact by the trial court that the searches were, in fact, for a valid law enforcement purpose.
04-9728 +++$+++ 33438 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. I mean, let's assume the police are telling the truth, and the judge says, "Sure." So, there is no limitation. And it sounds to me, then, as though about the only limitation that would be enforceable would be the limitation against harassment. If one officer did it every 15 minutes to the same person, or if there were a departmental systematic policy saying, you know, "Get so-and-so," that I can understand as being a limitation. But I don't see any other limit.
04-9728 +++$+++ 33439 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the limitation is, as Your Honor states, if it's a -- for a valid law enforcement purpose or to promote rehabilitation or --
04-9728 +++$+++ 33440 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I realize --
04-9728 +++$+++ 33441 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- recommend --
04-9728 +++$+++ 33442 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- but do you --
04-9728 +++$+++ 33443 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-9728 +++$+++ 33444 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- do you agree that there is not any practical limitation, other than the harassment limitation?
04-9728 +++$+++ 33445 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- well, that harassment limitation is sufficient to protect the residuum of an expectation --
04-9728 +++$+++ 33446 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, maybe --
04-9728 +++$+++ 33447 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of --
04-9728 +++$+++ 33448 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- maybe it is. But what's the answer to my question? Is that, in practical terms, the only limitation?
04-9728 +++$+++ 33449 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is a -- but it -- yes, Your Honor, that is the protection.
04-9728 +++$+++ 33450 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
04-9728 +++$+++ 33451 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought you said that maybe cavity searches would not -- would not be allowed without some special reason for them. And that wouldn't necessarily be harassment.
04-9728 +++$+++ 33452 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it depends on the circumstances of the search.
04-9728 +++$+++ 33453 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes --
04-9728 +++$+++ 33454 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's an --
04-9728 +++$+++ 33455 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I mean --
04-9728 +++$+++ 33456 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- overarching principle here, under the Fourth Amendment, that the search be reasonable, in terms of manner and scope.
04-9728 +++$+++ 33457 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-9728 +++$+++ 33458 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That applies equally to a suspicionless search as it would to a search based on individual suspicion. To that extent, it's really not an issue that arises from the fact that this is suspicionless.
04-9728 +++$+++ 33459 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What would be arbitrary and capricious? You told us harassing would be the repeated searches by the same officer.
04-9728 +++$+++ 33460 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Or an -- or a needlessly intrusive search, as has been just described, or --
04-9728 +++$+++ 33461 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let's assume -- let's assume that the cavity search is demanded at the bus station, and the officer says, "We know that drugs get transported by people who ingest them in the balloons, and they get on buses and they travel back and forth from city A to city B." Any reason that that would run afoul of arbitrary and capricious?
04-9728 +++$+++ 33462 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Depends on the circumstances of the search. Again, Your Honor --
04-9728 +++$+++ 33463 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All I'm telling you is, he's at a bus station. The facts are that a lot of people who travel on buses are drug couriers. This person is a parolee. Would that run afoul of the -- of any arbitrary and capricious limitation?
04-9728 +++$+++ 33464 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would, for example, if it were done in public view. If the officer didn't, then --
04-9728 +++$+++ 33465 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, sure, but the officer says, "All right. I'm taking you down to the station for a cavity search."
04-9728 +++$+++ 33466 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, the office -- if the officer did it under those circumstances, it's for the finder of fact to decide whether it was done for a legitimate purpose or --
04-9728 +++$+++ 33467 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you're -- I'm asking you to be the finder of fact for me. This is the officer's explanation. This is the factual -- set of factual premises on which he acts. Has he violated the arbitrary and capricious limitation?
04-9728 +++$+++ 33468 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If, in fact, it was for the purpose that you state, a legitimate law enforcement purpose, and he has been removed from public view, and it's reasonable, in terms of manner and intensity, then it would be permissible.
04-9728 +++$+++ 33469 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I have one --
04-9728 +++$+++ 33470 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, suppose you couldn't -- -
04-9728 +++$+++ 33471 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I have one --
04-9728 +++$+++ 33472 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- you couldn't --
04-9728 +++$+++ 33473 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I have --
04-9728 +++$+++ 33474 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- conduct cavity searches without some special reason, even in prison. Wouldn't that be -- isn't there some remnant of a fourth-amendment right in prison that you cannot subject, you know, the whole cellblock to cavity searches?
04-9728 +++$+++ 33475 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would depend, Your Honor, on the prison, the prison regs, the State. I can't answer that question --
04-9728 +++$+++ 33476 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I --
04-9728 +++$+++ 33477 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in --
04-9728 +++$+++ 33478 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I thought the assumption of your answer to my question a moment ago was that there was no such limitation, so far as California is concerned.
04-9728 +++$+++ 33479 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, there is a limitation, in terms of manner and scope.
04-9728 +++$+++ 33480 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, sure. But we -- the manner, in this case, is, they take him down to the station, so that they're not going through this in the middle of a crowded bus terminal. But the point of the question was, any parolee at a bus terminal could be subjected to this demand for search, and I thought your answer was, yes, he could be. And now, in response to Justice Scalia's question, you're saying, "Well, there may be some limitation." So, which is it?
04-9728 +++$+++ 33481 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That if the search is a -- for a valid law enforcement purpose, and it is reasonable in scope and manner, then it is a permissible parolee search, in California.
04-9728 +++$+++ 33482 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Does it depend -- I mean, what if he's on parole for transporting drugs in balloons from bus stations? Does that make a difference? -- as opposed to, he's on parole for tax fraud.
04-9728 +++$+++ 33483 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It certainly might, Your Honor. And, again, that would be -- that -- an additional bit of evidence to present -- to be presented to the suppression court to determine whether the scope of the search was reasonable.
04-9728 +++$+++ 33484 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But all this is on a case -- would be on a case-by-case basis. There are no going-in guides for the officer on the street.
04-9728 +++$+++ 33485 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's necessarily determined on the -- any search has to be decided -- the reasonableness of any search has to be decided on a case-by-case basis.
04-9728 +++$+++ 33486 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do we --
04-9728 +++$+++ 33487 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the reasonableness here would be unreasonable, unless there are some checks. We're talking about suspicionless searches. And you could have checks. But what about saying -- why is it reasonable to do it without any rule-based controls on the behavior of the police? That's the question.
04-9728 +++$+++ 33488 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. And the answer is, in terms of the competing interests, the lowered expectations --
04-9728 +++$+++ 33489 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. But what interest does it serve not to have some rules, manuals, regulations that help make sure it really is random, or help make sure it isn't harassing, or help make sure that it's serving the very ends that you hope to serve with the suspicionless searches?
04-9728 +++$+++ 33490 +++$+++ TRUE +++$+++ MR. NIVER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If a State wishes to adopt such rules, those would -- may comply with the Fourth Amendment. The question is not, what could be done? The question is, What was done? The question is whether California's rule, which permits parolee searches that -- with the -- absolute prohibition of arbitrary, capricious, and harassing suits, and which must be conducted under the Fourth Amendment, in terms -- reasonable, in terms of time, place, manner, and scope -- the question is whether that system, the California scheme, is constitutional under the Fourth Amendment. And here, the system was designed to address an overwhelming problem that the Court, this Court, has well defined. The -- over 100,000 parolees are on the street at any given time. Almost 90,000 of them will be revoked in any given period. They -- the California parolees require intense supervision. The statute, 3067, was enacted to permit that kind of intense supervision. And the protection afforded to the parolee, in terms of a requirement of a proper purpose --
04-9728 +++$+++ 33491 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Niver. Mr. Marcus.
04-9728 +++$+++ 33493 +++$+++ FALSE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you. Mr. Chief Justice, and may it please the Court: Concerned about the threat that parolees pose to public safety, the California Legislature, in 1996, authorized both police and parole officers to search them without individualized suspicion. Whether evaluated under the special-needs doctrine applied in Griffin, or the totality-of-the-circumstances approach applied in Knights, the search of Petitioner in this case, pursuant to his search condition, was reasonable under the Fourth Amendment.
04-9728 +++$+++ 33494 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do we have --
04-9728 +++$+++ 33495 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But not the consent --
04-9728 +++$+++ 33496 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- to decide --
04-9728 +++$+++ 33497 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- not the consent approach, I take it. I didn't get an opportunity to ask the counsel who argued just previously. Seemed to me that he argued consent when he answered Justice Stevens's question about the tax-evader. But he argued the overwhelming practical needs when he argued the rest of the case. And I thought I saw some tension in the argument there. And I take it the Government does not embrace the consent argument?
04-9728 +++$+++ 33498 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, we do embrace it. We -- but we briefed --
04-9728 +++$+++ 33499 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you --
04-9728 +++$+++ 33500 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the --
04-9728 +++$+++ 33501 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- just --
04-9728 +++$+++ 33502 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It --
04-9728 +++$+++ 33503 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- put it in number --
04-9728 +++$+++ 33504 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We --
04-9728 +++$+++ 33505 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- you put it --
04-9728 +++$+++ 33506 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We --
04-9728 +++$+++ 33507 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- in number three?
04-9728 +++$+++ 33508 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. It --
04-9728 +++$+++ 33509 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In --
04-9728 +++$+++ 33510 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- well, primarily -- for a couple of reasons. First, Your Honor, the California Supreme Court has not had a chance to interpret 3067(a), you know, after the Reyes decision. They weren't interpreting it there. And so, they haven't had a chance to revisit their ruling that, as a matter of State law, it's not -- there's no consent when it comes to a parolee. And that's -- so, we thought maybe that would be a reason this Court, prudentially, wouldn't want to reach that issue. And, secondly, the -- while the joint appendix contains a portion of the agreement that the Petitioner signed, it doesn't contain the whole content of the agreement. The appellate record doesn't contain the whole content of the agreement. So, we didn't --
04-9728 +++$+++ 33511 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But in your view, if the consent was straightforward in the documents, would that be the strongest argument or the weakest argument?
04-9728 +++$+++ 33512 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think --
04-9728 +++$+++ 33513 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I mean, I take you'll win on any --
04-9728 +++$+++ 33514 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We --
04-9728 +++$+++ 33515 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- argument --
04-9728 +++$+++ 33516 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, we think all --
04-9728 +++$+++ 33517 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- you can take.
04-9728 +++$+++ 33518 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- we think all three arguments are strong. I don't think -- one isn't necessarily stronger than the other. And -- but -- and this Court -- but if the Court -- I mean, the Court certainly, at a minimum, can look at the statutes under California law, and can certainly conclude from the statutes that if a -- if some -- if an inmate doesn't sign the papers, he stays in prison until his sentence basically terminates. And then -- and then, at that point, when he's released, this -- another provision, section 3060.5, kicks in, and his parole -- his parole is revoked. And he eventually will -- he ultimately will serve his whole term of parole in prison, so that the Court can see by the statutes that it is, effectively, a choice, statutorily, that he -- someone who does not want to be on parole does not have -- does not have to sign the condition, and will never go on parole.
04-9728 +++$+++ 33519 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Long seemed to have -- tell us something different about that. It's -- they had -- they must go out. He seemed to say they didn't have the choice of staying in.
04-9728 +++$+++ 33520 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think it's fairly clear, Your Honor, under -- if you look at the appendix to the Petitioner's brief, if you -- if you look at a combination of section 3067(b), and then -- which --
04-9728 +++$+++ 33521 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I think he said he was unaware of anybody who was dragged out kicking and screaming.
04-9728 +++$+++ 33522 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. And then if you look at 3067(b), and then you also look at -- 3067(a) and (b), and then you look at section 3060.5, which provides for revocation if the -- if the inmate is -- or the parolee is unwilling to --
04-9728 +++$+++ 33523 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But it really --
04-9728 +++$+++ 33524 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- sign the --
04-9728 +++$+++ 33525 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- it really isn't.
04-9728 +++$+++ 33526 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- agreement.
04-9728 +++$+++ 33527 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's -- this is not like you sign an agreement and you're -- you can do it or you can not do it. I mean, this is a real Hobson's choice, isn't it?
04-9728 +++$+++ 33528 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you know, again, if you think that --
04-9728 +++$+++ 33529 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You can't --
04-9728 +++$+++ 33530 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- there --
04-9728 +++$+++ 33531 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- negotiate, "I don't" --
04-9728 +++$+++ 33532 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There --
04-9728 +++$+++ 33533 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- "want this part."
04-9728 +++$+++ 33534 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There undoubtedly are adverse consequences to not signing the agreement.
04-9728 +++$+++ 33535 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Could you --
04-9728 +++$+++ 33536 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-9728 +++$+++ 33537 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- waive your -- could you waive --
04-9728 +++$+++ 33538 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-9728 +++$+++ 33539 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- your Eighth Amendment rights? You know, if your parole's revoked, you're going to go back into a very cruel and unusual prison, not the one you left.
04-9728 +++$+++ 33540 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I mean, I think -- I think the test would be whether it's -- whether it's reasonably the consent -- what they're asking you to agree to is reasonably related to the purposes of punishment. And, in this case, the -- you know, the supervision of the parolee, rehabilitation, protection of public safety. And so, we think the consent argument works very well here. But, if I could, I'd like to also address our arguments under the totality of the circumstances and special needs. Faced with a serious recidivism problem, California has made the reasonable judgment that subjecting parolees to suspicionless searches is necessary to protect public safety and to promote rehabilitation.
04-9728 +++$+++ 33541 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What if it's the case --
04-9728 +++$+++ 33542 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-9728 +++$+++ 33543 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- that this program would allow some searches that are -- that violate the Fourth Amendment, but that this particular search would not? How closely can we focus just on what happened here, or do we have to consider all the -- all the types of searches and the circumstances of searches that the California program might permit?
04-9728 +++$+++ 33544 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- no, I mean, I think typically this Court applies a very, sort of, narrowly tailored approach to Fourth Amendment questions, and focuses narrowly on the context in which the search was conducted. In this case, for example, you wouldn't -- you wouldn't have to reach the question of whether a search of a home was constitutional. This -- I mean, the question here is whether a search of the Petitioner on a public street was constitutional. And the Court does typically limit its Fourth Amendment cases to the facts presented. So -- but, at the same time, in analyzing that, I think you do have to consider what the Fourth Amendment standard is. And we believe the Fourth Amendment does impose -- the Fourth Amendment itself imposes restrictions on the discretion of police officers and parole officers that are meaningful, that -- as the Reyes Court said, there are restrictions on the timing, the frequency, the duration, and the oppressiveness of the search. So, police officers and parole officers are on notice that courts will review suspicionless searches very carefully. They're on notice that there are limits to what they can do. And they're --
04-9728 +++$+++ 33545 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But following --
04-9728 +++$+++ 33546 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- on notice that --
04-9728 +++$+++ 33547 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- up on Justice --
04-9728 +++$+++ 33548 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- if a search is --
04-9728 +++$+++ 33549 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- Alito's thought, supposing there were no restrictions whatsoever, but this particular search didn't seem very offensive. Would you still defend it?
04-9728 +++$+++ 33550 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If there were no -- no, we -- no, we think there are -- the Fourth Amendment imposes restrictions -- time, place, and manner restrictions -- on the suspicionless searches.
04-9728 +++$+++ 33551 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No.
04-9728 +++$+++ 33552 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And so, that --
04-9728 +++$+++ 33553 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ He's asking you, I think, Justice Alito's question, "Do we have to get into that?" So long as this one's okay, why do -- why do we have to get into whether there might be some other ones that aren't okay?
04-9728 +++$+++ 33554 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- that's correct. I don't -- I mean, I --
04-9728 +++$+++ 33555 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it --
04-9728 +++$+++ 33556 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I think you just --
04-9728 +++$+++ 33557 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- it was assumed California --
04-9728 +++$+++ 33558 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
04-9728 +++$+++ 33559 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- didn't say if they had protection against harassment and so forth. Suppose they just said, "Cart blanche, you can search any parolee at any time, any place." And then you'd ask whether this search was reasonable.
04-9728 +++$+++ 33560 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. And I think, in determining that, you would -- in determining it and looking at the facts of this case, you would -- you would apply a Fourth Amendment standard to determine whether this search was objectively reasonable. And you would look at factors like the time, place, frequency, and manner to determine whether a search was, in fact, reasonable --
04-9728 +++$+++ 33561 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, it would uphold this.
04-9728 +++$+++ 33562 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and objective --
04-9728 +++$+++ 33563 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There's --
04-9728 +++$+++ 33564 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- objective --
04-9728 +++$+++ 33565 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- no matter now unreasonable the California statute might be in other applications.
04-9728 +++$+++ 33566 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. And it's to see whether it's objective -- whether the search in this case was objectively related to the purposes of supervision, to protect public safety, and to promote rehabilitation. That, we think, is the test under the Fourth Amendment. And while Petitioner points out that there are a hundred cases out there where the standard, you know, hasn't been used to throw out a search, at the same time, he hasn't pointed to any cases where a prosecution has been based on an abusive search that this standard has been too toothless to throw out. And we think that's significant, given that this type of condition has been in place for over 20 years for probationers, since the Bravo decision in 1987. And the parole condition has been in place since 1996, when the Legislature authorized this and made a considered decision to switch from a reasonable-suspicion standard to a suspicionless standard for parolees.
04-9728 +++$+++ 33567 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The Government -- is the Government of the United States somewhat behind the State of California? It's not efficient in -- as efficient as California in supervising its parolees? Because you don't have this rule.
04-9728 +++$+++ 33568 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't have this program. There are -- I mean, District Courts have the authority to impose a suspicionless search condition. And some have. I think the important thing to keep in mind here is that this is a -- the Court has traditionally given a lot of deference to States in dealing with convicted felons in their criminal justice system, in making sentencing determinations, reasonable sentencing determinations, as this Court emphasized in the Ewing decision. And so, California clearly has a big problem on their hands. The recidivism rates are demonstrated, they're in the record. The -- California was responding to those high recidivism rates. They were also responding to some high-profile crimes involving parolees. And the -- and, on top of that, we do have a brief that's submitted by 21 States who say that they do need this authority to effectively supervise parolees.
04-9728 +++$+++ 33569 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Has --
04-9728 +++$+++ 33570 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
04-9728 +++$+++ 33571 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- the recidivism rate gone down in the years since the Reyes decision, since this is suspicionless search, as opposed to reasonable suspicion?
04-9728 +++$+++ 33572 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I mean, I'm not sure if the studies have been -- statistics have been, sort of, documented up to this -- to this date, but I think it's fair to say that it would be difficult to draw conclusions from those statistics, because, of course, this gives -- this provision gives the California parole and police officers more authority to conduct searches; and so, there's -- to the extent it's increasing the detection of crime, and so more people are actually being, you know, put back in prison on a parole violation or a criminal violation, it wouldn't necessarily mean that it's -- this isn't, you know, being successful in reducing recidivism, because there's --
04-9728 +++$+++ 33573 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do --
04-9728 +++$+++ 33574 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I mean, there's that side to it, too.
04-9728 +++$+++ 33575 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even apart from the -- what -- the lack of evidence for any change since the Reyes decision, do we have any empirical evidence, perhaps involving a control group, about the likelihood of the -- this liberal search policy in reducing recidivism?
04-9728 +++$+++ 33576 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ May I answer the question, Your Honor?
04-9728 +++$+++ 33577 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Go ahead.
04-9728 +++$+++ 33578 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think, you know, traditionally this Court has been very deferential to State decisions on -- you know, on efficacy, on whether a particular program is going to be efficacious -- I mean, cases like Martinez-Fuerte and the Sitz decision involving checkpoints for drunk driving -- in a court. Even with, you know, very strong, you know, low efficacy rates -- in, you know, a program that's showing very low efficacy rates, the Court said that these are judgment that -- judgments that the States need to make, and they ought to be given a lot of deference, even if, you know, their -- the numbers, you know, of -- don't show, by clear and convincing proof, that the problem isn't being ameliorated.
04-9728 +++$+++ 33579 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Marcus. Mr. Long, you have 2 minutes remaining.
04-9728 +++$+++ 33581 +++$+++ FALSE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In answer to Justice Alito's question, this search is unconstitutional, because the officer was completely at liberty -- he had complete discretion to decide whether to search. And it would not be acceptable if California said, "You can search anybody on the street," if the answer was, "Well, it wasn't a particularly invasive search." Granted, parolees have far less Fourth Amendment rights than others, but this is so much the core of the Fourth Amendment. This is what the framers wrote the Fourth Amendment to stop, these general warrants and writs of assistance. One --
04-9728 +++$+++ 33582 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But we --
04-9728 +++$+++ 33583 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- consent --
04-9728 +++$+++ 33584 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- we normally don't look into the mind of the officer to decide whether his action was okay or not.
04-9728 +++$+++ 33585 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, and we're not asking you to look into the mind of the officer. It's -- California's system, it's quite clear -- they admitted it here -- leaves it up to -- the officer can have any reason for doing the search. It's arbitrary, in the sense this Court would use, but not California. On consent, very quickly, footnote 16 of our reply brief, the California Supreme Court has said repeatedly that -- including very recently, since this section 3067 -- that parole is not a matter of consent; it is imposed on you. This is a question of State law. Perhaps this Court would read the State law differently. But, as the Court said in Griffin, the State Supreme Court is the last word on the questions of State law. As to abuses, there are a number. One that I'll just mention, the California Supreme Court has held that it's perfectly okay -- if the officer knows somebody in the house is on parole or probation, they can use that as a lever to go in and search to try to find evidence about somebody else who's in the house. That is permissible under the California standard. But the bottom line here is that this type of search regime is at the core of the prohibition of the Fourth Amendment. It's what the framers wrote the Fourth Amendment to prohibit. So, if parolees have any Fourth Amendment rights, other than, you know, an essentially useless arbitrary-and-capricious standard that's never going to work, the Fourth Amendment has to prohibit this search. There are many other things the States can do. They have many options. This is at the endpoint on the spectrum. Thank you.
04-9728 +++$+++ 33586 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Long. The case is submitted.
04-980 +++$+++ 33591 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Brown vs. Sanders. Ms. Kirkland, proceed, please.
04-980 +++$+++ 33593 +++$+++ FALSE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. Mr. Chief Justice, and may it please the Court: Whether a capital sentencing statute is categorized as "weighing" or "non-weighing" determines how courts assess the impact of an invalid death eligibility factor on a jury's sentence selection. To decide whether a statute is "weighing" or "non-weighing," we look to the function, if any, of an eligibility factor in the statute's sentence-selection process. In a "weighing" scheme, as this Court first stated in Zant, a jury is specifically instructed to weigh the statutory eligibility factors, along with any mitigation, to choose the sentence. In a "non-weighing" scheme, the eligibility factors have no role above the role of "all other sentencing evidence." California is a "non-weighing" State, for two primary reasons. First, the only reference whatsoever to "eligibility factors" in California's statutory list of 11 open-ended sentencing factors is in its sentencing factor (a), but that reference has no significance, because, under the language of the statute and the holdings of the California Supreme Court, factor (a) means the jury is to consider, if it's relevant, the facts and circumstances of the offenses, including the facts and circumstances that underlie the eligibility factors.
04-980 +++$+++ 33594 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't the difficulty with that argument that that, at least, is not the way the jury was instructed in this case? As I understand it, the -- and I don't have it in front of me, but I looked when I was going through the briefs -- the jury was instructed to consider the special circumstance, or -stances, as such. They were not instructed that, "You will simply consider the facts that underlay whatever conclusion you drew at the -- at the earliest stage about special circumstances." They are instructed to consider special circumstances.
04-980 +++$+++ 33595 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They're instructed in the language of the statute. And in that sentencing factor (a), there is a reference to those special circumstances.
04-980 +++$+++ 33596 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ As such. I mean --
04-980 +++$+++ 33597 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So that --
04-980 +++$+++ 33598 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- it calls them special circumstances, right?
04-980 +++$+++ 33599 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
04-980 +++$+++ 33600 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
04-980 +++$+++ 33601 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it's not reasonably likely that the jury would have understood that to mean that they should accord any special weight to the title of special circumstances, apart from the overall umbrella of the --
04-980 +++$+++ 33602 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well --
04-980 +++$+++ 33603 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- special circumstances that --
04-980 +++$+++ 33604 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- well, that may be an argument for the way we have looked at special circumstances, is as something -- as factors that do carry a special weight, but I don't see any reason to differentiate the instruction to consider special circumstances here from the instructions in law to consider eligibility factors in other States, which we have called "weighing" States.
04-980 +++$+++ 33605 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in "weighing" States, the eligibility factors form the primary aggravation for the jury to consider at sentencing. In California, the reference to the eligibility factors is that one subpart of one of otherwise completely distinguished from eligibility factors --
04-980 +++$+++ 33606 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I --
04-980 +++$+++ 33607 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- sentencing factors --
04-980 +++$+++ 33608 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- I know what you're saying, because, in California, you've got a long list of other things, and you're entirely right. But, as I understand it, in the States that we have classified as "weighing" States, the juries were not -- were not strictly limited, on the aggravating side, to consider only the special circumstances or the aggravating factors, as they have been previously defined; they could consider other things. And that's the case here. So, I don't see how we can draw a categorical distinction between California's situation and that of States we've called "weighing" States.
04-980 +++$+++ 33609 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's two differences between that. In any of those "weighing" States -- well, in Mississippi and Florida, for example -- the eligibility or aggravating factors are -- are the sole aggravation at sentencing, and --
04-980 +++$+++ 33610 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought in --
04-980 +++$+++ 33611 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's really --
04-980 +++$+++ 33612 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- I thought in Mississippi they could take into consideration other facts.
04-980 +++$+++ 33613 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they couldn't at the time of Clemons and Stringer. Apparently, in the interim, in the 1990s, as is discussed in our brief, they -- Mississippi changed the interpretation of its statute, so it now has, sort of, an overarching circumstances-of-the-crime aggravation consideration in its sentencing. But that was not the time as of Clemons. And, in the footnote in Clemons, which -- this Court referred to the statute of Mississippi -- it was clear that, at least at the time of Clemons, the eligibility factors were the sole aggravation. But the --
04-980 +++$+++ 33614 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, you would say Clemons should come out the other way, given the current state of the Mississippi statute?
04-980 +++$+++ 33615 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It depends how else the aggravating factors are; what kind of a role the aggravating factors play now under Mississippi statute. If the role is de minimus, then it's probably not a "weighing" State. But the "weighing" States -- in the "weighing" States, the eligibility factors are the lynchpin of the sentencing decision.
04-980 +++$+++ 33616 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I suppose the reason behind this distinction -- and it's, in a sense, artificial, because we made it up -- I suppose the reason is that, in the "weighing" State, the concern is that if there is an ineligible -- or an invalid factor in the eligibility determination, it carries over with a degree of force and weight -- it's almost -- it's a presumption that the jury is liable to treat it -- or, at least the jury is liable to treat it as such. And I see that same aspect to this case, when the instructions refer -- as you indicated in your colloquy with Justice Souter -- that the instructions specifically say "any special -- any special circumstance which has been found."
04-980 +++$+++ 33617 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's -- that is a --
04-980 +++$+++ 33618 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Am I right that the special --
04-980 +++$+++ 33619 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's what it says. It's a -- it's a phrase, just as it's in the California statute, that directs the jury, as a sentencing factor, to consider the facts and circumstances of the crime along with any special circumstances found to be true. And this Court's made it clear, in Stringer and in other cases, that how the State court sees its statutory language ought to be dispositive. And California has repeatedly held -- and we submit it's not reasonably likely a jury would interpret it any other way -- that that means that the jury is to consider the facts and circumstances of the case, all of those facts and circumstances, including those that underlie the special circumstances. That --
04-980 +++$+++ 33620 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ See, I'm not -- this is a fairly complex area.
04-980 +++$+++ 33621 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd agree.
04-980 +++$+++ 33622 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And, as I understand, at this moment -- and I hope you'll correct me if I'm wrong -- in a "weighing" State, we look at the aggravating side, and there seem, let's say, to be three factors that you could take into account and weigh them against all the mitigation. I'm imagining that. And you might have thought, if factor one turns out to be invalid, the reason that that's a big mistake, because the jury would have weighed something against all that mitigating evidence that it shouldn't have. And what's something? There would be a lot of evidence on it, so it took it -- evidence into account it shouldn't have. So, I might have thought that was so. But when I read the cases, that isn't so, because I think it's -- in Clemons the evidence would have come in anyway. So, if that isn't so, what could be wrong with this problem in the "weighing" State? And the answer, I guess, has to be that the prosecutor or the State said, "Jury, you look to these three things," with a tone of voice that really made them important. And the jury then weighed one and two and three. It didn't have anything to do with the evidence. Well, if that's the problem, California seems to have that problem, because one of the things it says to weigh is, "Weigh circumstances of the crime." And that means that's not everything. That's not the history of this defendant. And so, the problem that existed in Clemons and in Stringer and in Zant that led to constitutional error seems to be there in California's case, too. Now, I probably have made five mistakes in my little recitation here, and I'd ask you to point them out. [Laughter.]
04-980 +++$+++ 33623 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In California -- well, first of all, if this is new jurisprudence to you, or unfamiliar, the critical difference is that most States, and most of this Court's jurisprudence, uses the term "aggravating factor" and "eligibility factor" interchangeably, because in most States, and particularly in the "weighing" States, "aggravating factor" is the eligibility factor that makes the defendant eligible for death, but it's also the sole, or primary, factor that the jury is to take into consideration on the side militating in favor of death. In California, we have "eligibility factors," which are the special circumstances, and those happen at the guilt phase of the trial. And then we have "sentencing factors," 11 factors that are totally different from the special circumstances or --
04-980 +++$+++ 33624 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They're not totally different, because one of them is special circumstances.
04-980 +++$+++ 33625 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, one part of one of them. In factor (a), there is one reference to special circumstances, and that's --
04-980 +++$+++ 33626 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And it distinguishes those from circumstances of the crime, and then it -- then it says, "and special circumstances." So, it seems to me that "special circumstances" is a discrete factor, different from "circumstances of the crime."
04-980 +++$+++ 33627 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The way that California has interpreted that -- in fact, there is a case that's cited in these briefs, People versus Cain, and Morris -- which is on our merits brief, in page 27, and in our reply brief, on page 6 -- where a defendant in California argued that that reference to "special circumstances" ought to be excised from the direction to the jury of what they're to consider at sentencing. And in rejecting the idea that that should be excised, the California Supreme Court said, "An instruction not to consider the special circumstances would defeat the manifest purpose of factor (a) to inform jurors that they should consider, as one factor, the totality of the circumstances involved in the criminal episode that's on trial."
04-980 +++$+++ 33628 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It is, indeed, very complicated, Ms. Kirkland. And, I forget, which provision of the Constitution is it that contains this complexity? [Laughter.]
04-980 +++$+++ 33629 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ All of this jurisprudence is based on the eighth amendment requirement --
04-980 +++$+++ 33630 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That says?
04-980 +++$+++ 33631 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that says that, "A valid death-penalty statute must provide sufficient narrowing" --
04-980 +++$+++ 33632 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that what the eighth amendment says?
04-980 +++$+++ 33633 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's the way the eighth amendment has been interpreted in its application of cruel and unusual --
04-980 +++$+++ 33634 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Cruel and unusual punishments are forbidden. And this is where that comes from?
04-980 +++$+++ 33635 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And may I ask you a question about the California statute, if I may, please? In subsection (a) of 190.3, it says that the trier of fact "shall" take into account any of the following factors, if relevant. And one of those is the existence of any special circumstance found to be true, pursuant to 190.1. And under 190.1, one of the special circumstances is number 14, "heinous, atrocious, or cruel." Does that mean the statute required in the weighing process -- that the jury take into account that factor? And is it not true that factor was held invalid?
04-980 +++$+++ 33636 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That factor was held invalid, but what --
04-980 +++$+++ 33637 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, they were -- they were directed to take into -- they "shall" take into account an invalid factor.
04-980 +++$+++ 33638 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, yes. "Shall" -- as interpreted in California versus Brown by this Court and in the California Supreme Court jurisprudence, "shall" is a directive, it's not -- it's not -- California does not have a mandatory statute. In fact, none of these factors are labeled as either aggravating or mitigating. It's possible --
04-980 +++$+++ 33639 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but the -- number 14 clearly is not mitigating.
04-980 +++$+++ 33640 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. But whether or not a crime is heinous, atrocious, and cruel is part of -- apart from its labeling as a special circumstance, that's certainly a valid consideration for the jury to be thinking about when it's engaged in its normative process of choosing sentencing. The only thing that's different under the California statute -- when "heinous, atrocious, and cruel," as a special circumstance, is out of the mix -- is whether it can be labeled "heinous, atrocious, and cruel," and whether that label has any independent weight. But all of the evidence and the --
04-980 +++$+++ 33641 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All of the evidence --
04-980 +++$+++ 33642 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- description of the crime --
04-980 +++$+++ 33643 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would you agree, though, that, if you had a separate sentencing jury, one that did not have all the evidence, and that jury was instructed that at the guilt phase a determination has been -- that has -- it has been found that the crime was especially heinous, atrocious, and so forth, that that finding might tip the scales in favor of imposing the death penalty?
04-980 +++$+++ 33644 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Your Honor, since that --
04-980 +++$+++ 33645 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Because the underlying facts are already before the jury, and they can make their own judgment about them.
04-980 +++$+++ 33646 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. And that instruction specifically directs the jury to all the facts and circumstances of the crime; and so, not only the characteristics of all those facts, but it would even be appropriate for the prosecutor to refer to the crime as "heinous and atrocious."
04-980 +++$+++ 33647 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ See, one of the -- one of the things that concerns me about this case -- unlike Zant, most of the cases in which we have found the label of aggravating -- immaterial -- or findings like prior criminal histories -- robbery, or something like -- but whenever a pejorative factor of this kind has been found, we've generally found it did tilt the scales a little bit on the -- on the -- in favor of death. Clemons and the other were cases of this kind of aggravating --
04-980 +++$+++ 33648 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but --
04-980 +++$+++ 33649 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- circumstance.
04-980 +++$+++ 33650 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but Clemons is a "weighing" State, where those --
04-980 +++$+++ 33651 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I understand.
04-980 +++$+++ 33652 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- aggravating or eligibility factors are at the core of the sentencing decision. And that's not the case in California. They're -- these are not the --
04-980 +++$+++ 33653 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are there any --
04-980 +++$+++ 33654 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the lynchpin of it.
04-980 +++$+++ 33655 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- cases in which we have held a fact of -- a finding of the fact of this kind was irrelevant, was harmless? I think the cases are all the other --
04-980 +++$+++ 33656 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in "weighing" States, that's true, but --
04-980 +++$+++ 33657 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Kirkland, assume for a moment -- I know you don't agree, but assume that the Court, or a majority of it, were to hold that California appears to be a "weighing" State. This case arose before the enactment of the Federal law that we call AEDPA. So, I guess pre-AEDPA law governs. And we would then have to consider -- what? -- whether this is harmless error? But the third question that you raised was -- apparently did not incorporate any consideration of the Brecht standard. Is that what would be applied if we had to address the consequence here, of holding it to be a "weighing" State?
04-980 +++$+++ 33658 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. We believe the Brecht standard would not apply --
04-980 +++$+++ 33659 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why?
04-980 +++$+++ 33660 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in this instance, and that's because what happens --
04-980 +++$+++ 33661 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wasn't that the pre-AEDPA standard?
04-980 +++$+++ 33662 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that's the pre-AEDPA standard, and --
04-980 +++$+++ 33663 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, why wouldn't that apply?
04-980 +++$+++ 33664 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because, in this -- if California were a "weighing" State -- and therefore, the Clemons ruled applied -- in the first instance, the State court has the opportunity to cure the error. And if the error is cured by re-weighing -- appellate court re-weighing the evidence, or appellate court harmless-error analysis, then there is no error to be assessed under the Brecht standard. And when it comes to the Federal court on habeas corpus, the error has been cured. And so, Brecht does not apply.
04-980 +++$+++ 33665 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In this case --
04-980 +++$+++ 33666 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I have one background question. And maybe I've missed something. Number 14, "murder was especially heinous, atrocious, and cruel" -- taken alone, that would be vague. But I thought that in Profitt we said that if it were -- if there were a gloss given by the courts in interpreting that standard so that it was made more specific, evidenced in a pitiless attitude, pitiless crime, that then it was valid. Has a Federal court, or have we said, that this provision is unconstitutional? Or do we just assume that in this case?
04-980 +++$+++ 33667 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Do we --
04-980 +++$+++ 33668 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or am I missing --
04-980 +++$+++ 33669 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- assume that the "heinous, atrocious, and cruel" special circumstance in this case was invalid?
04-980 +++$+++ 33670 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-980 +++$+++ 33671 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it -- we assume that, because, in this case, the California Supreme Court held that to be invalid. In Profitt -- and that's Florida statute --
04-980 +++$+++ 33672 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Invalid as a matter of Federal law?
04-980 +++$+++ 33673 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's invalid as a matter of State law.
04-980 +++$+++ 33674 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
04-980 +++$+++ 33675 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So, the -- California's holding on "heinous, atrocious, and cruel" in its Engert case, which is cited in these briefs, pre-dates this Court's holding in Maynard that "heinous, atrocious, and cruel" was invalid under the eighth amendment.
04-980 +++$+++ 33676 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, now we have an extra layer of complexity, because something that's been held unconstitutional under State law is said to skew the weighing, if it is weighing, as a matter of Federal law.
04-980 +++$+++ 33677 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it can be looked at --
04-980 +++$+++ 33678 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right.
04-980 +++$+++ 33679 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that way. But the other thing that I wanted to say about your question about Profitt is that Florida, like some of the other States, after Maynard v. Cartwright declared that "heinous, atrocious, and cruel" was an inappropriate eligibility circumstance under the eighth amendment, some States have fashioned either instructions or changes in their law to tailor their "heinous circumstance" to meet the concerns that are expressed in Profitt. But California has never done that, because --
04-980 +++$+++ 33680 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was it --
04-980 +++$+++ 33681 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- it held it invalid under California law --
04-980 +++$+++ 33682 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- was it this case in which the Supreme Court of California made the definitive interpretation --
04-980 +++$+++ 33683 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
04-980 +++$+++ 33684 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that this is -- what was --
04-980 +++$+++ 33685 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That case is Engert, which is --
04-980 +++$+++ 33686 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Engert. I can find it, thank you.
04-980 +++$+++ 33687 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's in the -- it's cited in the briefs.
04-980 +++$+++ 33688 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What did -- what did the California Supreme Court hold? Did it hold that considering the "heinous, atrocious, or cruel" nature of the crime as part of the totality of the balancing was improper, or did it hold that that language is insufficient to form one of the narrowing functions that the aggravating circumstances provided.
04-980 +++$+++ 33689 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Engert case specifically held that the "heinous, atrocious, and cruel" circumstance was only invalid as an eligibility determinant, because it failed to adequately narrow. So, it specifically --
04-980 +++$+++ 33690 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, if I think something is "heinous, atrocious, or cruel," I can use that in the balancing, even though I can't use it as one of the narrowing factors.
04-980 +++$+++ 33691 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. And in the Engert case itself, the California Supreme Court indicated that "heinous, atrocious, and cruel" would be a valid sentencing consideration; it just wasn't a valid narrowing consideration.
04-980 +++$+++ 33692 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, of course, this goes to a question, really, for the Respondent. It helps -- there is a paradox here. To the extent that a State attempts to guide and to limit what the jury can consider in the selection phase, it's held to a higher standard. There is -- there is certainly a paradox there.
04-980 +++$+++ 33693 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-980 +++$+++ 33694 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Counsel, I was confused by your answer to Justice O'Connor's question. Do you think the -- we should review the California Supreme Court's harmless-error analysis, or should we undertake a Brecht analysis?
04-980 +++$+++ 33695 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this case --
04-980 +++$+++ 33696 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Assuming you'd -- we'd --
04-980 +++$+++ 33697 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Assuming --
04-980 +++$+++ 33698 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you lose on the first question.
04-980 +++$+++ 33699 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- California is a "weighing" State --
04-980 +++$+++ 33700 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
04-980 +++$+++ 33701 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- then the first step is for this Court -- as the Ninth Circuit did, is to look at whether California performed a proper Clemons review, which is that the appellate court looks to see whether there is a principled and complete harmless-error review. The Ninth Circuit held that there was no such principled and complete review, because --
04-980 +++$+++ 33702 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I would have thought that that might have collapsed into the Brecht analysis.
04-980 +++$+++ 33703 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It could have, but it -- the court did it in two steps, and we believe it's because the Ninth Circuit recognized that it couldn't get to Brecht unless it found that California's attempt to cure the error under Clemons failed.
04-980 +++$+++ 33704 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In other words, you said that the error was harmless under Chapman, the higher standard --
04-980 +++$+++ 33705 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
04-980 +++$+++ 33706 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- and that the California court so ruled. And if that ruling is correct, then you would never get to any Brecht standard; the Federal court would have to say California applied the proper harmless-error analysis, and that's the end of the case.
04-980 +++$+++ 33707 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
04-980 +++$+++ 33708 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So the -- so the second question, once we get past weighing, is whether California, in fact, did do what Chapman said. Is that right?
04-980 +++$+++ 33709 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, that they not only have to have applied the appropriate standards -- that is, the "beyond a reasonable doubt" standard, which is the same as California's "reasonable possibility" standard -- they not only have cried -- applied the correct standard, but they have to have done so in a principled and complete way so the reviewing court can make sure that they've actually cured the error.
04-980 +++$+++ 33710 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the problem --
04-980 +++$+++ 33711 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
04-980 +++$+++ 33712 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- here is that the California Supreme Court decision is rather skimpy once you get to harmless error.
04-980 +++$+++ 33713 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we think that their analysis of the error was fairly complete. They refer to the critical aspect of it. They talked about the standard that should be applied. And they made clear, as they have -- consistent with their holdings, that because all the other evidence that related to the burglary, felony murder, special circumstance, or eligibility factor and the "heinous, atrocious, and cruel" eligibility factor, since all of that evidence was properly before the jury and the prosecutor, and nothing about the arguments or the instructions emphasized the independent weight of those eligibility factors in the sentencing, that, therefore, there was no harm.
04-980 +++$+++ 33714 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're --
04-980 +++$+++ 33715 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What was -- the argument was that, in California, the burden of proof is on --
04-980 +++$+++ 33716 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right.
04-980 +++$+++ 33717 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the defendant, instead of on the prosecutor for the harmless-error inquiry?
04-980 +++$+++ 33718 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We think that the burden-of-proof argument is illusory here, that the way that these things are analyzed, just as they were in this very case, is that it's the court who performs the analysis, and there's no discussion of which side has to prove what. It's the court who determines whether -- what standard's to be applied and whether that standard is met by all of the facts and circumstances --
04-980 +++$+++ 33719 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Maybe --
04-980 +++$+++ 33720 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of the case.
04-980 +++$+++ 33721 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- so, in this -- or, weren't there previous California cases -- or, again, correct me if I'm wrong -- where California says the reasonable-possibility test requires the defendant to establish that the error was prejudicial? I thought that was the California law. Or am I wrong?
04-980 +++$+++ 33722 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the California -- the California Supreme Court has said that "reasonable possibility" and "beyond a reasonable doubt" are the same thing. And those burden cases are in a completely different context than this. In this case, in this kind of circumstance, when we're talking about capital-case sentencing, it's the court who does the analysis. There's no discussion of burden, and there's --
04-980 +++$+++ 33723 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but don't --
04-980 +++$+++ 33724 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- no placement of burden.
04-980 +++$+++ 33725 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- don't we assume that the court follows California law on the -- on the burden? And isn't it clear that, under California law, the burden is on the defendant?
04-980 +++$+++ 33726 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. In this case, the court -- there is no discussion of burden. There --
04-980 +++$+++ 33727 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I know there is no discussion of burden. But when there is no discussion of burden, isn't the reasonable assumption for us to make, as a reviewing Court, the assumption that the California Supreme Court followed its own law, and its own law is that the burden is on the defendant?
04-980 +++$+++ 33728 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think it's fair to assume that in this instance, since burden didn't play any role in this, that there was -- neither side had any burden. The court itself performed the analysis. If the court has --
04-980 +++$+++ 33729 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask you one quick question, but you can comment on it -- the statute expressly says, "They shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances." How do you respond to that? Why is it not a "weighing" State when it says that?
04-980 +++$+++ 33730 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the word "weigh" isn't the talisman for the process that the jury goes through. "Weigh" is a normative process that -- opposing counsel have made the point that, in the 1977 law, which everybody agreed was a "non-weighing" law, that when we injected the word "weigh" into the 1978 capital sentencing statute, that that changed this. But the California Supreme Court made clear, in its Frierson decision, that, as far as California is concerned, the process -- the mental process that the jury goes through under either statute is the same, that "weigh," "consider," "balance," so on, none has a talismanic thing. It's just a metaphorical description for the jury's normative evaluation. So, the term "weigh" is not dispositive.
04-980 +++$+++ 33731 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the term "concluding that it does outweigh" is something different from "weighing."
04-980 +++$+++ 33732 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it's the same process. And in California, too, a critical thing is that that "aggravating circumstances" mean the sentencing factors that militate in favor of death; it doesn't mean that "eligibility circumstance." It refers to those sentencing factors. I'd like to reserve the rest of my time for rebuttal.
04-980 +++$+++ 33733 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Ms. Kirkland. Ms. Rivkind.
04-980 +++$+++ 33735 +++$+++ FALSE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: I would like to focus on the observation that we need to look at what the jury was instructed, because I think that will clarify for the Court that California's 1978 law is, indeed, a "weighing" statute under the established law of this Court. In Mr. Sanders' case, the jury was instructed in the language of section 190.3, and this language gave the jury a very explicit roadmap as to how it was to undertake its sentence selection in this case. Section 190.3 assigns a specific role to the aggravating factors. It tells a jury that, "In determining the penalty, you shall consider, take into account, and be guided by the listed enumerated factors." The special circumstances, as the questions from the Court have noted, are specifically included. Factor (a) has two independent components, and one is the existence of any "special circumstance" finding. As Justice Stevens noted, this could only be considered aggravating. It is, after all, the reason that California has said that this case moved from being an ordinary murder to being one that was worthy of either death or life without parole.
04-980 +++$+++ 33736 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's not -- it's prefaced by circumstances of the crime.
04-980 +++$+++ 33737 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
04-980 +++$+++ 33738 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And this State, and other States, can determine, "Oh, the victim was in fear for a long time, or was tortured." It seems very odd that a State, which is a so-called "non-weighing" State, could allow all of this same evidence to come in, but California, which tries to give some structure, is suddenly held to a higher standard. That's paradoxical.
04-980 +++$+++ 33739 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, no, I think it's not, and I think it's very consistent with what we see in Mississippi. In California, factor (a) contains two independent components. One is the "circumstances of the crime," and one is the "special circumstances." The California Supreme Court, both before it affirmed Mr. Sanders' death sentence and after -- before, in a case, People versus Hamilton, and after, in People versus Benson -- in the context of assessing invalid special circumstances, said that it presumes the jury follows its instructions, and considers the special circumstances independently of their underlying facts.
04-980 +++$+++ 33740 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, it's -- it's invalid only because it's too vague for eligibility. It's not invalid because it's too vague for selection.
04-980 +++$+++ 33741 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that distinction holds up. And I think that we see that both in Clemons and in Stringer. And this takes us to a misunderstanding of the Mississippi statute. In Mississippi, the statute has not changed since the time of Clemons, except for one provision, and that is the addition of another category of capital murder. In Mississippi, death eligibility is decided by the definition of "capital murder" in section 97-3-19. And the State lists, I think, now nine -- I think it was eight at the time of Clemons -- categories of capital murder. The defendant then goes to a penalty phase, and the statute sets forth aggravating circumstances in Mississippi's statute, section 99-19-101. There is a correlation between many -- at the time of Clemons, all of the categories of capital murder and the aggravating circumstances, much as there is in Louisiana. However, there are two additional aggravating factors at the sentence-selection phase, and those are the "heinous, atrocious, and cruel" aggravator, which, in Mississippi, is only a selection factor, and whether the defendant had a prior conviction. And so, in this sense, we -- the Mississippi statute is very comparable to California. And it goes further, because, in Mississippi -- in Clemons' case, if you look at the joint appendix, at 24, and also in Stringer's case, at joint appendix 10 -- the juries were instructed, pursuant to the Mississippi standard capital-sentencing instructions -- the very first opening paragraph tells the juries that, "In determining penalty, you must objectively consider the detailed circumstances of the crime." And I think this instruction helps explain the court's footnote 5 in Clemons, which I think is very important in terms of understanding why this whole focus on circumstances of the crime is not relevant to the distinction between "weighing" and "non-weighing."
04-980 +++$+++ 33742 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is --
04-980 +++$+++ 33743 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Rivkind, I really don't understand what harm is done here. I can understand you're saying that there is harm done when a statute says, "The jury shall weigh the aggravating circumstances," which are -- have been specified and which are narrowing circumstances; there are only five named in the statute -- "shall weigh the aggravating circumstances found to be true against the mitigating," and it turns out that one of those five aggravating circumstances is unconstitutional. Okay? Then you have the jury weighing something that it shouldn't have weighed, because that aggravating circumstance was bad. I don't see why any harm is done where you have a statute that lists aggravating factors, one of which is "heinous, atrocious, or cruel," and that is later found invalid by the State supreme court. But then, in the weighing process, the jury is told, "Don't just weigh aggravating factors, weigh all of the circumstances of the crime." Now, it seems to me that the same jury that erroneously found, as one of the aggravating factors, "heinous, atrocious, and cruel," would also have found that "heinousness, atrociousness, and cruelty" to be one of the circumstances to be weighed. So, what harm is done?
04-980 +++$+++ 33744 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the harm is -- there is harm. I think the fact that the jury considers the circumstances of the crime, in California, as an aggravating factor. It may go to prejudice. Certainly, the nature of a statute will inform a court's prejudice analysis. But Mr. Sanders went into the penalty phase essentially with four weights on death's side of the scale, based solely on the special circumstances, and two of those weights should not have been there. And his jury was given a very --
04-980 +++$+++ 33745 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the -- but the evidence supporting them was perfectly admissible. So, the jury could consider that evidence and come to the same conclusion; it's just the label that seems to be giving you the most concern.
04-980 +++$+++ 33746 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I have two responses, Your Honor. First, the rule -- the distinction between "weighing" and "non-weighing" is not an evidentiary rule. It is a rule about the statutory labels that a State gives to the factors that the jury puts on death's side of the scale. Even in a "non-weighing" State, as Zant made clear, if and in where a harmless-error review need not be done, because the court has concluded there will be -- the aggravating circumstances have an inconsequential impact, because the jury is not required to consider them in the selection decision -- even there, if an invalid aggravating circumstance permits the introduction of evidence that would otherwise have been inadmissible, we have error. And that's the conclusion that the --
04-980 +++$+++ 33747 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay, but aren't we in, sort of, the converse situation here? There isn't any question about the admissibility of evidence that shouldn't otherwise have come in. I thought your argument here is: the error proceeds from the fact that, by using this label -- by referring to the circumstance as a "special circumstance," having been found at the eligibility stage -- that circumstance, and all the evidence that might support it, is given extra weight, and that's where the thumb on the scale comes. Isn't that your point here?
04-980 +++$+++ 33748 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My argument is that the "special circumstance" finding, itself, is the invalid aggravating factor on death's side of the scale. That is what the California Supreme Court --
04-980 +++$+++ 33749 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But that's what I thought I was trying to say. I mean, am I getting it wrong? Because this is the --
04-980 +++$+++ 33750 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
04-980 +++$+++ 33751 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- time to correct me, if I am.
04-980 +++$+++ 33752 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, the -- the jury could consider the facts of the crime, as in Mississippi. The jury is told to consider all the crime facts when deciding the penalty. And in California the jury could have considered the manner of the killing and who was killed and how the crime proceeded. The harm to Mr. Sanders was that the jury was told that it had a process that was mandated for reaching its decision, and that process required the jury to put two special circumstances on death's side of the scale, that should not have been there, and then required the jury to reach the penalty decision by balancing.
04-980 +++$+++ 33753 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are you saying -- because this can get pretty complex -- simply, that because special circumstances are a discreet category, that, in effect, what went -- what the court is instructing is double counting that factor? It's a factor in all the circumstances how the -- how the crime was committed is a factor of all circumstances; and then, in addition, it is a special circumstance. So it is, in effect, counted twice. Is that the essence of your argument?
04-980 +++$+++ 33754 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it's more than that, because I -- I think if -- the harm is --
04-980 +++$+++ 33755 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I hope so. [Laughter.]
04-980 +++$+++ 33756 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is more than that, because we have to think of how the jury is understanding this. To ordinary citizens who are called to stand in ultimate judgment --
04-980 +++$+++ 33757 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, didn't the California Supreme Court answer that in --
04-980 +++$+++ 33758 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-980 +++$+++ 33759 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- its Bacigalupo --
04-980 +++$+++ 33760 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
04-980 +++$+++ 33761 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- decision, where, as I read it, it says juries don't give special circumstances any extra weight in considering all the variety of factors listed in the statute?
04-980 +++$+++ 33762 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't read Bacigalupo as saying that. Bacigalupo did not deal with the question of invalid special circumstances being weighed at the penalty selection. I think the more appropriate authority of the California Supreme Court are its Hamilton and Benson decisions, wherein, addressing exactly the situation, a claim that invalid special circumstances tainted the death sentence, the court said, specifically, "We presume the jury weighs those special circumstances, apart from the crime" --
04-980 +++$+++ 33763 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The word "special circumstances" is ambiguous, because it might refer to something in the world, in which case it's about evidence, or it might refer to something in the law, in which case it's a statement by a prosecutor to look at some of this evidence and give it some special weight. Now, that what's confusing me throughout. As I understood this area, to go back to what Justice Scalia was saying -- no, wait, just -- I'll back up to try to get you to correct my misunderstanding -- Zant is the key, because Zant says, "Judge, if you have a 'non-weighing' State" -- that is, everything's relevant but the kitchen sink -- "the fact that the prosecutor made a mistake at the eligibility stage by including something he shouldn't is beside the point." Is that right?
04-980 +++$+++ 33764 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct.
04-980 +++$+++ 33765 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Fine. Then we look at Stringer and Clemons, and they're making exceptions to Zant. And they're making exceptions for "weighing" States. So, even if the evidence in all three cases is identical and it made no difference to the evidence -- that is, to what really happened in the world -- still, says Clemons and Stringer -- still, you're not home free yet, State. Rather, you have to back up and do harmless-error analysis. So, the answer, I think, to Justice Scalia, if I understand it, is, Justice Scalia, you may be right, maybe all this is harmless, but we don't have before us the product of harmless-error analysis, because you didn't grant cert on it, among other reasons. Now, if I'm right so far, and if we want to straighten all this out, why not go back and say all three cases are wrong? What you really ought to do is say, "Court, always conduct harmless-error analysis. Conduct it whether you're in 'non-weighing,' conduct it whether you're in 'weighing.' We'll simplify." Now, what would be so terrible about that?
04-980 +++$+++ 33766 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if I were able to write on a clean slate, that is the rule I would propose. I think that if you -- the whole idea of Zant was carving out an exception from conducting harmless-error review, and the court was assured that because the aggravating circumstance, which was only a death eligibility factor, fell away at the selection stage, there was really -- it was -- the impact of that aggravating circumstance was likely to be inconsequential, as the Georgia Supreme Court found, and as this Court found in Zant. The simple approach would be to apply harmless-error review, no matter what the structure of the statute --
04-980 +++$+++ 33767 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Then we would not have this crossword puzzle, which probably only five people in the United States understand, and the worst thing that would happen would be, you'd always conduct harmless-error analysis, and thus, if Justice Scalia is right about it, you would lose, and if -- because it would be harmless -- and if he's wrong about it, you'd win.
04-980 +++$+++ 33768 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Assuming --
04-980 +++$+++ 33769 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think -- I --
04-980 +++$+++ 33770 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- assuming the district court does the -- the district court in the Ninth Circuit does the harmless-error analysis correctly.
04-980 +++$+++ 33771 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- [Laughter.]
04-980 +++$+++ 33772 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I --
04-980 +++$+++ 33773 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But isn't it the California Supreme Court that has to do the harmless error, in the first instance? And here, this is puzzling about this case. Defendant said, at trial, to his lawyer, "Don't argue any mitigators. I'd just as soon die as spend my life in prison." So, no mitigators were argued. So then, even if you have a wrong aggravator, you have other aggravators that are right, and there's nothing to weigh against those correct aggregators. So, what mitigation is there to weigh against the valid aggravators?
04-980 +++$+++ 33774 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think we first need to distinguish between the lack of a formal mitigation case and the absence of mitigating factors. In this case, in reviewing a different claim, the California Supreme Court -- and I refer the Court to joint appendix 108, I believe is the cite -- the California Supreme Court found that Mr. Sanders' decision to refuse to take part in the penalty phase did not necessarily make a death sentence more likely, and it also found that the jury could have found mitigating factors from the guilt-phase evidence. Indeed, the jury was instructed to consider the evidence from all parts of the trial.
04-980 +++$+++ 33775 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, what were those? I see that sentence. The jury --
04-980 +++$+++ 33776 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So, I think there was a --
04-980 +++$+++ 33777 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but what were the mitigating factors from the evidence presented at the guilt phase?
04-980 +++$+++ 33778 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The main mitigating evidence was a powerful mitigating factor which went to the personal culpability of Mr. Sanders, and that was that the prosecutor, in his closing guilt-phase argument, told the jury, "We don't know whether Mr. Sanders was the actual killer or whether his co-defendant, Mr. Cebreros, was." And there was evidence from the surviving victim that there was a conversation between the two assailants, before the surviving victim was struck, in which one of the men said he wanted to leave the apartment. And, again, there was no evidence as to which defendant this was. This Court, in Green versus Georgia, has realized that whether someone is an actual killer or an accomplice is of critical importance in deciding between life and death. That was the main powerful mitigating factor in this case. And --
04-980 +++$+++ 33779 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I've never heard that described as a mitigating factor before. I mean, it's certainly worse if you're a triggerman, but I don't know what makes it -- somehow it's mitigating if you were not the triggerman. I would say that you're not guilty of something even worse. But to call that a factor of mitigation --
04-980 +++$+++ 33780 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it is mitigating, and the fact that there is a question about one of the people, perhaps the accomplice, which very well could have been Mr. Sanders, wanting to leave before the murder occurred was basis enough to give the jury pause. And if we look at the deliberations, we realize that there was a jury note, about three-quarters of the way through its deliberations, asking the jury the consequences if it could not reach a unanimous jury verdict.
04-980 +++$+++ 33781 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But now you're getting into what has sometimes been called "residual doubt." You point out that a juror asked, "What if it were not unanimous?" And you also pointed out that there was an earlier hung jury in this case. But you didn't argue, below, that residual doubt counts. It's one thing to say, "If defendant argues it, the court should take it into account." But there was no such argument made in this case.
04-980 +++$+++ 33782 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You mean in the trial court.
04-980 +++$+++ 33783 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ At any time.
04-980 +++$+++ 33784 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, in the -- in the ninth circuit, residual doubt was argued. It is a mitigating factor in --
04-980 +++$+++ 33785 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But in the trial court, it wasn't, because that's when it would count.
04-980 +++$+++ 33786 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, in the trial court, nothing was argued, because trial counsel acquiesced to Mr. Sanders' request that there be no penalty defense. And I want to make it clear, this is not a case because Mr. Sanders wanted death. As his trial counsel told the court, Mr. Sanders insisted he was innocent and wanted to go home. The trial court made it very clear to him, that wasn't an option.
04-980 +++$+++ 33787 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Didn't -- wasn't there a statement that he was indifferent between death and life imprisonment?
04-980 +++$+++ 33788 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- there was a statement that he did not want either penalty.
04-980 +++$+++ 33789 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you -- do you defend that the difference in -- our distinction between balancing and non-balancing -- or, pardon me, "weighing" and "non- weighing" States -- your answer to Justice Breyer indicates the -- that you would not be disconsolate if we jettisoned the whole -- the whole distinction. And isn't it true that it's paradoxical that a State which tries to structure the selection phase by giving specific factors as held to a higher standard than a State that doesn't? That seems to me very odd.
04-980 +++$+++ 33790 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't -- I don't think that's odd. I think what that recognizes is that the Court has said, "While you do not have to give a -- we do not need a guided-discretion statute" -- that, as Zant holds, a jury can have complete, absolute discretion in choosing between life and death -- that when a State does regulate that, it must be done within the contours of the Constitution. The essential wisdom in the distinction between "weighing" --
04-980 +++$+++ 33791 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it is within the contours of the Constitution if, in a "non-weighing" State, the same evidence could be considered.
04-980 +++$+++ 33792 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But it -- I don't -- again, I don't think it's a question of evidence, I think it's a question of what are those factors that are being put in -- on -- in death's side of the scale, and how are they being balanced --
04-980 +++$+++ 33793 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, and I can imagine, in "non-weighing" State, a prosecutor banging on and on, at the eligibility stage, on factor X, and really fixing that in the mind of the jury, and it turns out that factor X is not an aggravator. Now, the jury might have been prejudiced. And I can imagine, in a "weighing" State that, because the evidence is the same, and because there were so many factors just like it, the fact that they used the wrong factor didn't really make any difference. So, it seems to me the lineup between harm -- real harm in a case, and weighing/non-weighing, it doesn't line up terribly well. But you have the experience. And that's why I'd like your reaction.
04-980 +++$+++ 33794 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In terms of the rule of --
04-980 +++$+++ 33795 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes. Yes. I mean, a serious effort to go back and say, "Look, harmless error throughout." I mean, I'm pushing the same thing I said before.
04-980 +++$+++ 33796 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He wants to know whether you would like to be thrown --
04-980 +++$+++ 33797 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-980 +++$+++ 33798 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- into the "Breyer" patch. I think -- [Laughter.]
04-980 +++$+++ 33799 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I think the answer is yes. [Laughter.]
04-980 +++$+++ 33800 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I'd like harmless-error analysis. I think -- I think that would be a simpler approach. It would accommodate competing interests, because each State's statute would be informing the prejudice analysis, and you would be looking at how many different sentencing selection factors were before the jury.
04-980 +++$+++ 33801 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In that --
04-980 +++$+++ 33802 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
04-980 +++$+++ 33803 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- analysis, would you use, as one factor, the circumstance that an eligibility determination was made by the jury, was focused on by the prosecutor, and that that was impermissibly vague? Would that be a component of your harmless-error analysis?
04-980 +++$+++ 33804 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor, I don't -- I didn't --
04-980 +++$+++ 33805 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would it be a --
04-980 +++$+++ 33806 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- get the question.
04-980 +++$+++ 33807 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, we have the rule, already, that if there is an invalid eligibility factor and it's a "weighing" State, that there's -- that the process is defective. Would you carry over that same argument just as one component of the harmless-error analysis?
04-980 +++$+++ 33808 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think if we had -- well, I first would like to clarify something you said. I think, under the existing law, it's not -- it is not just eligibility factors, the invalidity of eligibility factors -- that create -- arbitrarily skew the sentencing, that, as we see in Mississippi, the "heinous, atrocious, and cruel" was only a selection factor. So, I think it -- this focus on an equivalence or a overlap between eligibility and selection factors is just not found in the Court's case law.
04-980 +++$+++ 33809 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that was the whole basis -- correct me if I'm wrong -- for the Ninth Circuit's case in your -- Ninth Circuit decision in your favor in this case. In this case, it certainly --
04-980 +++$+++ 33810 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in --
04-980 +++$+++ 33811 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- is an accurate description of --
04-980 +++$+++ 33812 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in this --
04-980 +++$+++ 33813 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- what the rule is.
04-980 +++$+++ 33814 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- case, yes. The special circumstances that are the invalid aggravating factors were eligibility requirements. But that is not -- as the Federal death penalty shows, that is not a prerequisite in the weighing/non-weighing distinction. And I think I didn't answer the second part of your question, but, I'm sorry, I can't remember it --
04-980 +++$+++ 33815 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I --
04-980 +++$+++ 33816 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- about --
04-980 +++$+++ 33817 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I was just asking if we can import the same formal rule we now have and reach -- and -- if we don't consider the same things in harmless-error analysis.
04-980 +++$+++ 33818 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think they would be. I mean, the way I would envision it is that if the jury weighs an invalid factor -- and under Sochor, the invalidity does not have to be based on Federal constitutional law. State-law invalidity creates the same harm; you're arbitrarily skewing the process toward death.
04-980 +++$+++ 33819 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it --
04-980 +++$+++ 33820 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If --
04-980 +++$+++ 33821 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- but it's only invalid as an eligibility factor. It's not invalid as a selection factor.
04-980 +++$+++ 33822 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In Sochor.
04-980 +++$+++ 33823 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In this case.
04-980 +++$+++ 33824 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In this case, it's invalid as to both, because it serves both purposes. It's -- first, sees it as an eligibility factor, and then the -- the provision says -- it doesn't say just consider special circumstances in some vague, undefined way; it specifically refers the jury back to its findings at the guilt phase. Section 190.3, subsection (a), says, "Consider the existence of an -- any special circumstances found true at the guilt phase." That's telling the jury, "Your -- the findings that made the defendant get the death penalty" --
04-980 +++$+++ 33825 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's the same jury. It's the same jury. The same jury that found it atrocious and cruel in the guilt phase would find it atrocious and cruel in the weighing stage. I don't see --
04-980 +++$+++ 33826 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In --
04-980 +++$+++ 33827 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But in -- would you clarify something? Is it the correct interpretation of the California law that the -- the California court held, in effect, that you may not consider the fact that the crime was heinous and atrocious for purposes of deciding whether he's eligible for the death penalty, but you may consider that fact for the purpose of deciding whether to impose the death penalty?
04-980 +++$+++ 33828 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I think if it's invalid for one, it's invalid for the other.
04-980 +++$+++ 33829 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But is that what the California court would say?
04-980 +++$+++ 33830 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The California -- the -- in Engert, the question was eligibility. In this case, the question was only selection. And the California Supreme Court -- the State conceded that the "heinous, atrocious, and cruel" circumstance was invalid, and the court, in this case, addressed its use as a selection factor.
04-980 +++$+++ 33831 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what -- the specificity you need for the narrowing factor does not exist with respect to mitigating factors. We've said anything can be a mitigating factor. I find it impossible to believe that the California Supreme Court said not only is the phrase "heinous, atrocious, and cruel" too -- you know, too vague for the narrowing factor, but, when you get to the weighing phase, the fact that the murderer sliced up his victim with a thousand cuts of the knife cannot be taken into account by the jury. That's unbelievable.
04-980 +++$+++ 33832 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the eighth amendment, as this Court said in Tuilaepa, does apply to the selection factors. It looks as -- at whether there's a commonsense core meaning.
04-980 +++$+++ 33833 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, but isn't -- I want to throw you a suggestion -- isn't the answer to that problem that anything may be considered as mitigating evidence, but a mitigating factor is a conclusion that evidence has a certain significance, and not everything may be taken into consideration as a mitigating factor? Isn't -- the problem that Justice Scalia raises addressed by distinguishing between evidence -- consider it all -- and factors, a characterization of evidence which may not necessarily be considered.
04-980 +++$+++ 33834 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You mean aggravating --
04-980 +++$+++ 33835 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I'm confused.
04-980 +++$+++ 33836 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes. Yes. Yes.
04-980 +++$+++ 33837 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. Because we're --
04-980 +++$+++ 33838 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
04-980 +++$+++ 33839 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. Because we're talking about aggravating factors.
04-980 +++$+++ 33840 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes. Yes. I misspoke. But, I mean, the distinction between "evidence" and "factor" is the -- is the key, isn't it?
04-980 +++$+++ 33841 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's the key, because the consideration of the circumstances of the crime is not the problem that we have. What we have is that the jury's told to consider this fact or this finding that the jury understands makes the defendant -- because the State has said this is a reason both to make him death-eligible and a reason to impose death -- creates a weight on death's side of the scale.
04-980 +++$+++ 33842 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. That means the answer to my question is yes, right?
04-980 +++$+++ 33843 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-980 +++$+++ 33844 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-980 +++$+++ 33845 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the statute does not say "the finding of any special circumstances found to be true." It says "the existence of any special circumstances found to be true." That's what they're -- that's what they're instructed to consider. The existence. In determining the penalty, the trier of fact take into account the following, (a), it says, the "existence" of any special circumstances found to be true; not the "fact" that they were found to be true.
04-980 +++$+++ 33846 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the prosecutor's argument in this case shows that they understood it as the finding. The prosecutor here argued -- in the precise language of the special circumstance, argued that this -- "the heinous, atrocious and cruel nature of this crime," parroting the language of the special circumstance. Clearly, the jury, I think --
04-980 +++$+++ 33847 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And that was correct under the law, wasn't it? In other words, "special circumstance" means the same thing when it's referred to -- the term means the same thing when it's referred to in the statute on selection as it means in the statute on eligibility.
04-980 +++$+++ 33848 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
04-980 +++$+++ 33849 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
04-980 +++$+++ 33850 +++$+++ TRUE +++$+++ MS. RIVKIND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In this case, what we have under the law that exists now is that California assigned a specific role to the aggravating circumstances that included the special circumstances --
04-980 +++$+++ 33851 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Rivkind. Ms. Kirkland, you have two and a half minutes left.
04-980 +++$+++ 33853 +++$+++ FALSE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd like to make three quick points in rebuttal. The first is that, as to the claim -- Ms. Rivkind's claim, that she's reiterated here, that the California Supreme Court has determined that the "special circumstances" label has some independent weight that it's important for the jury to consider at sentencing -- she's only cited half of the sentence in Benson and Hamilton. The other half rebuts her claim. The sentence is, "Although we presume that the jurors followed their instructions and considered the invalid special circumstances finding, independent of thier underlying facts" -- that's what she relies on -- they say, then, as they've said in a number of cases, "we cannot conclude that they could reasonably have given them any independent significant weight." So, it's just the point we're making. It's just a label that does not carry with it any independent significant weight, because the evidence, the argument, the circumstances are all before the jury in the same way. The second point is that, while there may be some doubt as to whether Mr. Sanders was the actual killer in this case, there's no question as to his complete culpability in the crime. He was the leader. He led Cebreros there. He was the one who incited the crime in order to cover up for a prior botched robbery.
04-980 +++$+++ 33854 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you agree that such residual-doubt factors are appropriately considered if the defendant didn't raise them? I mean, the question of -- that, yes, the jury found the defendant guilty beyond a reasonable doubt, but maybe there's something that makes that determination doubtful.
04-980 +++$+++ 33855 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that's an appropriate consideration here, where it wasn't raised, ever. The third point is that we wouldn't be here, except for the overlap in factor -- sentencing factor (a). That subclause, which the California Supreme Court has repeatedly held, means only that the jury is to consider all the facts and circumstances of the crime, including the facts and circumstances underlying the special circumstance, or eligibility factor. If that subclause wasn't in there, our eligibility factors in the special circumstance, and our sentencing factors, would be completely mutually exclusive and there would be no issue whatsoever.
04-980 +++$+++ 33856 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Ms. Kirkland.
04-980 +++$+++ 33857 +++$+++ TRUE +++$+++ MS. KIRKLAND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
04-980 +++$+++ 33858 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The case is submitted.
05-1056 +++$+++ 33863 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument now in No. 05-1056, Microsoft against AT&T. Mr. Olson.
05-1056 +++$+++ 33865 +++$+++ FALSE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens. May it please the Court: The limited monopoly granted by U.S. patent laws protects against the making, using or selling a patented invention within the United States. Section 271(f) also makes it an infringement to make components of a patented invention within the United States and then simply ship them abroad for reassembly.
05-1056 +++$+++ 33866 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Olson, before you get into the merits I have a question, a preliminary question. I understand from AT&T's brief that there has been a stipulation entered into between the parties after the judgment below which preserved Microsoft's right to appeal and prescribed different dollar amounts that Microsoft must pay AT&T depending on the outcome of the appeal. Does that raise any, any muteness problem? Can you sort of wager on the outcome of an appeal that way?
05-1056 +++$+++ 33867 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't believe so, Justice Scalia.
05-1056 +++$+++ 33868 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, suppose two parties just, you know, parties that otherwise do not have a case or controversy, bet each other that the district court will come out one way or the other way in, in a trumped-up suit. Does that create a standing --
05-1056 +++$+++ 33869 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This is by no means a trumped-up suit. It's a very serious suit. The outcome, the judgment, the amount of damages that must be paid is not a matter of wager. It depends upon the decision of a matter of law of an interpretation of a statute of the United States.
05-1056 +++$+++ 33870 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you could say the same thing in the hypothetical I gave. It is a matter of wager, which way the Court will come out.
05-1056 +++$+++ 33871 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This is an entirely legitimate, I submit, means by which parties may preserve a legal issue depending upon how a legal question is decided. The only thing that's been resolved is the amount that will be paid as damages depending upon the outcome of the appeal.
05-1056 +++$+++ 33872 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you know of any, any precedent for that?
05-1056 +++$+++ 33873 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It seems to me, Justice Scalia, that it happens frequently, especially in criminal cases where there is -- someone pleads guilty in and preserving a right to appeal a certain issue. I don't have a case to cite to you but it strikes me as quite understandable that the parties might agree if the outcome of the legal question that the judge might decide is going to be X, then the consequence will be a liability for Y. If it's -- if it's of the opposite outcome, the outcome will be different. That's --
05-1056 +++$+++ 33874 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose the amount were trivial and you just wanted to get a resolution of this question?
05-1056 +++$+++ 33875 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that if the amount --
05-1056 +++$+++ 33876 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then there would be a case with a controversy problem, I should think.
05-1056 +++$+++ 33877 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know what the Court might mean by the word trivial, Justice Kennedy, but this is a very significant major amount involved in this case. There is no question that the parties are very serious. It's a very significant legal question with respect to the interpretation.
05-1056 +++$+++ 33878 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's so, but is there a lot of money involved depending on whether you win or lose?
05-1056 +++$+++ 33879 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1056 +++$+++ 33880 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
05-1056 +++$+++ 33881 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this case, notwithstanding the limitation of in Section 271(f) that the components, there's -- liability of the components are created here, and reassemble the broad. The Federal Circuit held that foreign made tangible reproductions of computer operating code installed in foreign-made computers may be components which are deemed or essentially supplied from the United States, because copying is part and parcel of software distribution, and thus subsumed in the act of supplying. Under this ruling, U.S. companies may be held liable for patent infringement whenever their products are copied or replicated abroad. This -- the court of appeals decision and the position of Respondents requires reworking several words in the statute. The statute says supplied from the United States. The court of appeals said, well, it might be deemed supplied from the United States after it's copied abroad. The Respondent takes the words "such components" in the statute and reads them as not the same components.
05-1056 +++$+++ 33882 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Olson, isn't one of the questions whether the software is really being copied when it's transferred from the golden disk to the new manufacturer, or whether it's actually being supplied?
05-1056 +++$+++ 33883 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is being copied. There isn't any question that it's being copied, Justice Stevens. The stipulation which is in pages 44-A through 47-A of the petition appendix contains the words -- this is words to which respondent stipulated -- foreign-made copies replicated object code, foreign manufactured copies, foreign replicated object code. What happens, Justice Stevens, is that the golden master of the disk which contains the physical manifestation of the object code is read by a machine somewhere outside the United States, looked at and then copied onto another physical medium, either a hard drive or a disk. Many hard drives, many disks. Those foreign replicated physical tangible copies are then installed in computers and they become components of those computers.
05-1056 +++$+++ 33884 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is the master disk a component?
05-1056 +++$+++ 33885 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The master -- well, AT&T has taken two positions on that. We --
05-1056 +++$+++ 33886 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's your position?
05-1056 +++$+++ 33887 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our position is that it's not a component of the final product computers that are made abroad. What is a component is a replication, a copy of a new hard drive or a new disk that's made a part of those computers which, without which --
05-1056 +++$+++ 33888 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Just the disk but not the information on the disk is the component.
05-1056 +++$+++ 33889 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The information on the disk is of no use to the computer unless it's made into a physical machine readable document -- object.
05-1056 +++$+++ 33890 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That -- Mr. Olson, that is the position of AT&T as I understand it, that what you call the object code appears in the -- in the computer that it's -- that is what is sent, along with the master disk, and the object code is the critical component, according to AT&T. In fact, wasn't that the first question that you raised, whether digital software code, an intangible sequence of 1's and 0's may be considered a component of a patent, patented invention?
05-1056 +++$+++ 33891 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If I understand your question, Justice Ginsburg, let me answer it this way. AT&T has taken two positions. The most recent position is that it's the intangible object code, the series of 1's and 0's, or instructions to a computer switch to be on or off, that is a component. They also took a position earlier in the case and which is referred to in the stipulation that it was the golden master, the physical manifestation on the -- on a master disk that went abroad that was the component.
05-1056 +++$+++ 33892 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I still would like to know your position. The golden disk is or is not a component?
05-1056 +++$+++ 33893 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is not a component --
05-1056 +++$+++ 33894 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But copies of the golden disk are or are not components?
05-1056 +++$+++ 33895 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The copies, the physical manifestation on a hard drive --
05-1056 +++$+++ 33896 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Physical manifestation?
05-1056 +++$+++ 33897 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our components of the foreign manufactured computers. Those components are not supplied from --
05-1056 +++$+++ 33898 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I suppose if you could, if you made 99 copies, those would be 99 components. Then if you used -- if you're going to make 100 machines. If you used for your disk the master disk for the last copy, then that would have been -- that would -- then the master disk would be a copy, a component of the last machine.
05-1056 +++$+++ 33899 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If -- well, I think, if I understand your question, if you make -- and it depends upon where you make it, where you transfer --
05-1056 +++$+++ 33900 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You make them abroad.
05-1056 +++$+++ 33901 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If you make it abroad, that -- and it's -- that is where the component is supplied from. Copies are made abroad. There's no question about that and --
05-1056 +++$+++ 33902 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if the disk, if the golden disk itself after they finish the copies, were used --
05-1056 +++$+++ 33903 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the physical --
05-1056 +++$+++ 33904 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in a hardware, then that would be a component.
05-1056 +++$+++ 33905 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If that physical golden disk were actually put into a computer and used without more.
05-1056 +++$+++ 33906 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I'm a little confused, because I thought the golden disk was just one method of getting the software into the new computers. And I thought it was the software which was arguably the component, not any physical manifestation.
05-1056 +++$+++ 33907 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's why I said AT&T has taken two positions. Here's the position that they took in their brief before the court of appeals. Three decades of patent jurisprudence have authoritatively recognized software to be a physical and structural component of patented machines. The problem, Justice Stevens --
05-1056 +++$+++ 33908 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But do you -- what is your view on whether or not software is a component?
05-1056 +++$+++ 33909 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- if I may answer that by saying that people use the word "software" in two different ways. One of which, they use it as the intangible series of 1's and 0's. We submit that the correct way to understand the word "software" is the physical manifestation of that what is called source code, which is made into object code, which is made into machine readable code.
05-1056 +++$+++ 33910 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or at least the correct way to understand component.
05-1056 +++$+++ 33911 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is the correct way to understand the --
05-1056 +++$+++ 33912 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the component then would be either a disk which is put into a computer or the portion of the hard drive to which the code is transferred.
05-1056 +++$+++ 33913 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. As I understand it, Justice Souter, and I think the stipulations make this clear, there's a reference in the stipulations to encoded transmissions but there's a -- but the parties also agree that's the same process as the golden disk. The golden disk is sent abroad. That is read by a machine and then the machine understands -- it's almost as if you were to read physically any other type of document, read it to a machine. The machine understands what is said, puts it into a physical manifestation on a disk or on a hard drive. Many copies are made in that fashion. They are installed in computers made abroad, sold to foreign purchasers.
05-1056 +++$+++ 33914 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So are you saying that neither the source code nor the compilation are a component?
05-1056 +++$+++ 33915 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of the foreign? The language of the statute is the foreign manufactured product. Those are the computers that are sold abroad. It is our position that the only components that are in issue in this case are the physical manifestations of the object code on a hard drive or on a disk.
05-1056 +++$+++ 33916 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that neither the source code nor the compilation are a component, save as, the compilation is put on a disk?
05-1056 +++$+++ 33917 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. And the -- the thing that's on the disk in the foreign --
05-1056 +++$+++ 33918 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That seems odd. I mean, Microsoft doesn't say please buy our disk because it's the prettiest disk in the business.
05-1056 +++$+++ 33919 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy --
05-1056 +++$+++ 33920 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It says buy our program because the program means something.
05-1056 +++$+++ 33921 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the program is nothing until made into a physical manifestation that can be made by the computer.
05-1056 +++$+++ 33922 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What is patented? Is the physical object patented or is the software patented?
05-1056 +++$+++ 33923 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The AT&T patent --
05-1056 +++$+++ 33924 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right.
05-1056 +++$+++ 33925 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The '580 patent is a program, as I understand it, that's married to a computer, has to be married to a computer in order to be patented.
05-1056 +++$+++ 33926 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You can't patent, you know, on-off, on-off code in the abstract, can you?
05-1056 +++$+++ 33927 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Justice Scalia.
05-1056 +++$+++ 33928 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There needs to be a device.
05-1056 +++$+++ 33929 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ An idea or a principle, two plus two equals four can't be patented. It has to be put together with a machine and made into a usable device. The bind that AT&T is in here is that the components that make the machines run that are produced abroad are not supplied from the United States. They are made in Belgium or Frankfurt or something.
05-1056 +++$+++ 33930 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That depends on what you consider the component. They define component as including the, what you've been calling the abstract.
05-1056 +++$+++ 33931 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They have attempted, Justice Ginsburg, with respect, to have it both ways. They've said that it is a physical and structural thing, something that's on the golden master disk. And then they say it's just the binary code in the abstract, but that in the abstract never becomes a part of the computer.
05-1056 +++$+++ 33932 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What did the Federal Circuit say? And I read the opinion a couple of times and it was, it seemed to me ambiguous whether the Federal Circuit was identifying the component as the object code itself or the master disk.
05-1056 +++$+++ 33933 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. I agree with you. The Federal Circuit was ambiguous, in part because there were two separate decisions. The court considered the component issue in the Eolas case and then when this case came along, said we've already decided the component portion of the statute; now we must decide the supplied from. So the language which the Federal Circuit used is a bit confusing. Basically what it said, though, is that the act of supplying embraces the act of copying. That means that any, any company sending a machine or a patented product abroad, that that machine must be copied in order to be mass produced abroad. It might be a pill. It might be a mousetrap. It might be a Buick. That exact identical copy if replicated abroad does not violate the statutes, the patent laws, it doesn't constitute an infringement.
05-1056 +++$+++ 33934 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose you had a patent on a biological organism and it was contained in a little vial, and you shipped it abroad. Just by doing nothing at all, it grew, and it had -- it grew into 100 different parts.
05-1056 +++$+++ 33935 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it reproduces itself, Justice Kennedy, somewhere outside the United States --
05-1056 +++$+++ 33936 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
05-1056 +++$+++ 33937 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What you're suggesting is that there is a pattern or a recipe or a template or a mold. It could be the same thing. If it's reproduced outside the United States by some laboratory outside the United States, then the components are not being sent from the United States for reassembly abroad.
05-1056 +++$+++ 33938 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't this an artificial distinction in -- when you're talking about the making of a tangible part, there's at least some cost involved in doing it here or doing it abroad, and some time involved. But with, with software, the Federal Circuit's point was that it is so easy and inexpensive and fast to copy it that simply sending the information abroad, sending the object code abroad in the form of the golden disk, is tantamount to manufacturing copies overseas.
05-1056 +++$+++ 33939 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think there are three answers to that. Surely the patent laws cannot be determined according to whether it's easy or fast or efficient to replicate something. There has to be a line that makes some sense. Number two, it may be fast and efficient but there are certainly costs involved in taking the machines to do it. Number three, where would that take us? A design -- every product contains its own manifestation of its design. That would take us everywhere, because any product can be copied abroad. However -- and maybe there are going to be fast ways to produce other things. These are replicas, reproductions, copies. These are not such components that are supplied from the United States. If I may reserve the balance of my time? Thank you.
05-1056 +++$+++ 33940 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Joseffer.
05-1056 +++$+++ 33942 +++$+++ FALSE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: It might help if I could start by putting this case into its context in both the United States and international patent law. Section 271(f) is a limited extension of normal territoriality principles that is designed to shore up the prohibition against actually making a patented invention in the United States, but it does not take the further and extraordinary step of applying United States law to the conduct of copying parts abroad for assembly and sale abroad conduct is properly the subject of foreign law. As a result, in the context of traditional manufacturing, for example, it has always been understood pursuant to the statute's text, that while companies cannot make parts in the United States for final assembly abroad -- that's too close to making it here -- they may make copies in a foreign country by, for example, sending the design to the foreign country or sending a specific part to the foreign country that can be copied there. That distinction between copying in the United States and copying in the foreign country has two critical dimensions. The first is that it protects the foreign government's sovereign prerogative to establish the rules of competition that will govern companies that wish to compete in that foreign country's markets by copying their products abroad, assembling them there and selling them there. The second, which is the flip side of that point, is that it enables United States companies to compete on an even playing field abroad against their foreign competitors by manufacturing, assembling, and selling parts abroad, subject --
05-1056 +++$+++ 33943 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Joseffer, to the, to the extent that you are claiming that there are foreign nations that would have an interest in this, usually when that is so, hear from them and in this case there is a strange silence in that regard.
05-1056 +++$+++ 33944 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that -- I can say -- a couple points I can make. One is, this case has, has been viewed because of the Federal Circuit's attempt to tie this to software on the grounds that software can easily be copied abroad, I think this case has been somewhat narrowly viewed as a software case. But in truth, there's no basis for distinguishing software from anything else, and if the Federal Circuit's decision was actually taken to its logical conclusion I have no doubt that other nations would be quite concerned, like in -- in two ways. One is we have looked, not exhaustively but we have looked, and we have not been able to find a single other country that would apply its law in the circumstances if they were reversed. In other words if a German condition wanted to compete in the United States subject to German law by making copies here, assembling them here, selling them here, Germany would stay out of that because it's the United States' prerogative. Also there are significant differences between the nations' patent laws. For software in particular, the United States is much more bullish on the patentability of software-related inventions than many other countries. But even for more mundane reasons, if we were talking about anything -- it could be that the foreign government doesn't think that an invention is particularly novel, it just disagrees with us about that, or it doesn't think there is sufficient advance in the prior art sufficiently inventive to warrant patent protection. And if the foreign country is going to make that determination regarding competition policy in its own borders, it's entitled to make that determination.
05-1056 +++$+++ 33945 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let me ask you about a domestic law question. One side is telling us it's the component that's supplied, whether it's the master disk or the object code. And the other side says this is just like a blueprint, like a mold, like a template. Can a blueprint be patented? Can a mold be patented?
05-1056 +++$+++ 33946 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not ordinarily. I mean -- I'm sorry.
05-1056 +++$+++ 33947 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Copyright. Copyright. You normally copyright.
05-1056 +++$+++ 33948 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You can certainly copyright something like that.
05-1056 +++$+++ 33949 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yeah, but patent --
05-1056 +++$+++ 33950 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well the -- no, but the -- I think the most important point here is that the components of patented inventions do not have to be patentable. Many patented inventions are comprised of a bunch of parts where the parts themselves would not be patentable because say they were standard off the shelf parts.
05-1056 +++$+++ 33951 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, there can be a process patent.
05-1056 +++$+++ 33952 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and we don't -- I mean, process patents, a process patent is a series of steps or acts for performing a certain function, such as turning rubber into a tire. We don't think process patents are relevant -- are, are covered by this statute for a couple of reasons. And it's not --
05-1056 +++$+++ 33953 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What, what is your view of what the component is in this case.
05-1056 +++$+++ 33954 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The component is the, is the actual machine readable copy of software that is inserted in --
05-1056 +++$+++ 33955 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The software is the component?
05-1056 +++$+++ 33956 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but the, the -- but like with anything, you could say a computer is also the component, but it's the actual computer, not you know, any copy of the same computer.
05-1056 +++$+++ 33957 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But in this case, you're -- but Mr. Olson said the component is either the disk or the portion of the hard drive to which the, the coded instructions are transferred.
05-1056 +++$+++ 33958 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-1056 +++$+++ 33959 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you accept that?
05-1056 +++$+++ 33960 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The United States view -- I'm not sure exactly how much we disagree on this -- but the United States view is that, for example, a blank disk is not a component of this invention because you don't need a blank disk to practice this invention. The -- the actual component is the physical substantiation, the physical copy of the software that's inserted into a computer and if you get a disk --
05-1056 +++$+++ 33961 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In other words, the disk plus the -- plus the coded instructions.
05-1056 +++$+++ 33962 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. And again the coded -- the software could be on a disk or it could be on some other technology. It doesn't matter how it --
05-1056 +++$+++ 33963 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It could be on the hard drive.
05-1056 +++$+++ 33964 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And once it's copied on to the hard drive, then the copy on the hard drive is itself a component.
05-1056 +++$+++ 33965 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I take it that we are operating under the assumption that software is patentable? We have never held that in this Court, have we?
05-1056 +++$+++ 33966 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, but as I was saying before --
05-1056 +++$+++ 33967 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So what should we do here? Should, if we are writing this, since it's never been held that it's patentable in this Court --
05-1056 +++$+++ 33968 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think if --
05-1056 +++$+++ 33969 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If I were writing something, should I say on the assumption that it's patentable? Since the issue isn't raised?
05-1056 +++$+++ 33970 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I think, I think the reason that's not relevant here is that the patented invention in this case is not software. It's computer that has software loaded into it. And the components of a patented invention do not themselves have to be patented.
05-1056 +++$+++ 33971 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can have you have a copyright on a program?
05-1056 +++$+++ 33972 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Ah, if you wrote it out, yes. If I wrote out a string of 1's and 0's I could copyright the strings of 1's and 0's that was -- that was written out on a piece of paper. But the -- in terms of what the component is here, the other things --
05-1056 +++$+++ 33973 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can I ask you, the point I don't understand when you say the -- the component is the disk that contains material, I understand that because here is a separate piece; it's a disk. You plug it in; it has the information on it. But then you say, if you put it on the hard drive it becomes the component. But the hard drive is not a separate thing like a disk. And when you say you put it on the hard drive you have nothing there but -- but -- but ons and offs. You have nothing there but the -- but the thought.
05-1056 +++$+++ 33974 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-1056 +++$+++ 33975 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How can you call, you know, what? Is it a separate section of the hard drive? No.
05-1056 +++$+++ 33976 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you could go later in and delete that software off the hard drive which confirms that the software does have a separate physical existence in there. But the main point is that the -- the component is the, is the physical substantiation of the software. The actual copy of the software. It doesn't matter if it's on a hard disk; doesn't mean it's on a disk; it doesn't matter if it's in the air in wireless transmission. It's just the physical copy of the software. And you could have a situation where there are multiple copies of that same component in a computer. One --
05-1056 +++$+++ 33977 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If these -- if these computers are built abroad and are sold with Windows installed, the component is the electrons on the hard drive? Is that what, that's your position?
05-1056 +++$+++ 33978 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's the physical embodiment of the software which in some instances is manifested by -- by those electrons. Now AT&T's contrary view is that the abstract code in the abstract is the component. The reason that can't be is that object code in the abstract is just a series of 1's and 0's. In theory I could memorize in my head or write down on a piece of paper. But that's not going to combine with other, with other parts to make a patented invention. And if I could illustrate that with a simple lock and key example, a key has a series of ridges on it that enable it to open a lock. And that series of ridges can be denoted by a sequence of numbers, bigger numbers for deeper ridges. But the component is the key that actually turns the lock, not the abstract sequence of ridges on the key. And you can then say that about anything; you can always say that any physical product, any physical part, is a physical manifestation of its abstract design.
05-1056 +++$+++ 33979 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that analogous to the source and the compilation, the source being the design, the compilation being the key?
05-1056 +++$+++ 33980 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The source code and object code are just different computer languages for expressing the same thing. There is no -- there's no difference between them. One is words and one is numbers, but they mean the same thing. There is no reason to treat them differently. The point is just that if you treat the -- either the source code or the object code as the component, that's just the design of the actual physical software that goes into the computer. If you did that you'd have a vastly different statute because any physical part has a design, but the whole point of the statute is to prohibit copying of parts in the United States while permitting copying of parts abroad for sale abroad. But if the design itself was a component then you could never copy parts abroad when something was designed in the United States, because something designed abroad would always infringe because the something designed abroad would itself be the component, and that would be a vastly different statute there's no reason to think Congress intended here, especially because of the extraterritorial consequences.
05-1056 +++$+++ 33981 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Windows wasn't around when this statute was passed.
05-1056 +++$+++ 33982 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the statute was enacted in 1984 when software was certainly present. It's fair to say that Congress was not thinking of software, but that's further caution for not expanding the statute beyond traditional territorial reaches. Because first, this Court has cautioned, has said that it should be cautious in applying existing electrical property statutes to new technologies. And in addition it's emphasized in Deepsouth that the caution against extraterritoriality applies in this very context. So Congress is writing against the backdrop of normal territorial principles, which are the making, using or selling inventions of foreign countries subject only to foreign law, and against the backdrop of Deepsouth, which has specifically held that Congress has to speak clearly to enact of statute like this.
05-1056 +++$+++ 33983 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought it was the position of the Federal Circuit that Deepsouth has to be brought into an electronic era, and so the -- the Federal Circuit was taking a statute that had a shrimp deveiner in mind and saying well, this is how that notion should apply to an electronic world.
05-1056 +++$+++ 33984 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. And the reason that doesn't work in the statutory text and policies is that the component that we are talking about here is the specific part that goes in the machine. And if -- and if -- and under the statute you have to let the company send the design abroad to manufacture it abroad, both to protect the company's ability to compete abroad and to protect the foreign government's prerogatives. Otherwise it's just a vastly different statute than the one that Congress enacted. That's really our terms of the politics.
05-1056 +++$+++ 33985 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Your time is up, but I want to ask you one yes or no question. In your view is software patentable?
05-1056 +++$+++ 33986 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Standing alone in and of itself, no.
05-1056 +++$+++ 33987 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you. Mr. Waxman.
05-1056 +++$+++ 33989 +++$+++ FALSE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Justice Stevens, and may it please the Court. There is no question that Microsoft supplies the Windows object code, that is the precise, machine readable sequence of commands that instructs a computer's processor. From the United States, that is paragraph 7 of the stipulation. There is likewise no question that it does so with the intent that precisely the same sequence, which runs to millions of lines of binary digits, will be installed and stored -- those are Microsoft's words -- in foreign computers precisely so that they may practice AT&T's invention. Those facts resolve this case because it is thus entirely consistent with the ordinary meaning of the words of the statute to say that Microsoft has quote, "supplied" a quote, "component" that when quote, "combined with hardware" enables the practice of AT&T's invention. Now let's look at --
05-1056 +++$+++ 33990 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose I send someone to the Patent Office --
05-1056 +++$+++ 33991 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Excuse me?
05-1056 +++$+++ 33992 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose I send someone to the Patent Office, goes there, picks up the patent, and this patent is written very, very, very concretely and specifically. Gets on the phone, phones somebody in Germany and reads it to him. And that person, having an excellent memory, takes everything in and now he has the precise instruction necessary to change the machine around or put various things into it. So now it is a precise copy of the machine in the United States.
05-1056 +++$+++ 33993 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's not the --
05-1056 +++$+++ 33994 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that -- how is that different from this? How is it different?
05-1056 +++$+++ 33995 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is very different than this case because what -- first of all, we all agree that software code in and of itself, removed from a physical structure, cannot be patentable and when software -- when some -- when an invention that is practiced with software is patented, at the most what you will see is preferred embodiments of the source code which is language that humans understand and which computers do not. A lot of work has to be done in items of debugging and testing and compiling to create what is, by stipulation, at issue in this case, which is the precise, machine readable sequence that commands a computer's CPU millions of times a second. Source code would do nothing. Source code has to be worked on overseas.
05-1056 +++$+++ 33996 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. We have a genius -- we have, as they used to have to get all the stuff that we stole from England, with the -- with the -- remember the weaving machines and the cotton spinners and so forth? This genius comes over here; he looks at a really complex machine; it is now stored in his head, the precise details that nobody else could do. He runs back to Germany, and he builds it. Well, he has absolutely stolen the precise, incredibly complex details of this machine.
05-1056 +++$+++ 33997 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-1056 +++$+++ 33998 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, does it matter, if instead of sending the individual, we send the machine to Germany. This genius looks at it in Germany and there he makes the copy. Are they any different?
05-1056 +++$+++ 33999 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ When you're talking -- when you're talking about sending designs over or blueprints or management instructions or a high level version of, gee let's have a code that will perform the following functions, and you have people design and make and compile and test and debug that code overseas, of course that component, the component is the object code, the precise commands that reside in the computer and continually interact with the hardware of the computer in a way I'm going to describe and is not disputed, millions of times a second. Let's take this case. Okay. Is it -- the question is, is it a component and whether what was supplied was in fact combined. That's, that's -- that's what this case boils down to. As to the component. We have something, software program, the NetMeeting and sound recorded program that can in its object, its machine readable command form, is developed, bought and sold entirely separately from any hardware that it commands.
05-1056 +++$+++ 34000 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that is what is on master disk.
05-1056 +++$+++ 34001 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that is what is either on the master disk or, although either side obscures this, that is what is represented in the electric -- electronic transmission, that is another means by which the code is supplied. And in paragraph 7 of the stipulation Microsoft acknowledges that it supplies the Windows object code by transmitting it to manufacturers overseas. And the way that happens is the code, the machine language, is resident in Redmond, either in the pits and lands of a CD or on the varying magnetic orientations of a hard drive, and a, some engineer from Microsoft presses a button and it is essentially, it is taken and converted into photons which stream whatever it is, 7,000 miles, under the land and under the Atlantic Ocean and emerges into a machine, a computer, a bit of otherwise inanimate parts that are sitting there in Dusseldorf, where it is loaded onto the hard drive, it's converted from photons to a series of electrical pulses.
05-1056 +++$+++ 34002 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that really what happens? As I understand it there is an intermediate step. They don't send it directly from the United States to each of the individual computers in Germany. They send it to a central point which then redistributes it. Is that not right.
05-1056 +++$+++ 34003 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that paragraph 7 of the stipulation, it doesn't specify one way or the other, but their case, Justice Stevens, depends upon the following. Because if I --
05-1056 +++$+++ 34004 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If you're correct that they're just sending from New York direct to the 500 different machines all on one transmission from New York, there's no lawsuit here.
05-1056 +++$+++ 34005 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me give you two examples --
05-1056 +++$+++ 34006 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that what you're trying to tell us, that they do send it directly from New York to 500 different recipients in Germany?
05-1056 +++$+++ 34007 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no, no. And it wouldn't -- what I'm saying is there is at least one violation of 271(f) here. 271(f) looks exclusively at what is done in the United States. It is entirely irrelevant to 271(f) what, if anything, is done overseas. The Federal Circuit has made this clear in the Waymark case and it's consistent with the language.
05-1056 +++$+++ 34008 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would it be a violation if they sent, if they sent the golden disk abroad and nobody ever copied anything off the golden disk?
05-1056 +++$+++ 34009 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If they sent the golden disk abroad or if the Microsoft engineer --
05-1056 +++$+++ 34010 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would you answer my question?
05-1056 +++$+++ 34011 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think I am. The answer is --
05-1056 +++$+++ 34012 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If they send the golden disk abroad and never use it, would that be a violation?
05-1056 +++$+++ 34013 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If they had the necessary intent and purpose. They had to have had the specific intent and purpose that it be combined in order to create a device that wouldn't --
05-1056 +++$+++ 34014 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Suppose it is never, it is never combined?
05-1056 +++$+++ 34015 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It wouldn't matter.
05-1056 +++$+++ 34016 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you -- and the reason it wouldn't matter on your view is that the component is the object code on the disk, not the disk itself?
05-1056 +++$+++ 34017 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
05-1056 +++$+++ 34018 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Then why doesn't that get you --
05-1056 +++$+++ 34019 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could be --
05-1056 +++$+++ 34020 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why doesn't that get you right back to the point that Justice Breyer was making? You are saying, I think, in essence if you send a blueprint -- this is like a blueprint. It tells, it tells a machine which may be in Europe how to put the object code on other disks or on hard drives. The machine in Europe is following instructions just the way an artisan would follow a blueprint.
05-1056 +++$+++ 34021 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Here's the difference.
05-1056 +++$+++ 34022 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is the difference?
05-1056 +++$+++ 34023 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And it's nicely embodied in Microsoft's reply's use, repeated use of the word "antecedent." A blueprint or a design is a precursor to the actual device. It is the instructions about how to make something. It's not the thing itself. And here what we have is the object code that is the precise commands that, unlike design information, interact continuously with the hard drive and with the processor in order to make physical changes on an ongoing basis.
05-1056 +++$+++ 34024 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but the "continuously" does not describe the process of going from the master disk to what you claim to be the infringing computer sold in Europe. There is no continuous process there. As I understand it, what happens is -- let's just take the master disk and forget the photon for the moment. The master disk functions like a blueprint. They send, from the United States they send the blueprint to Europe. The blueprint is put in some kind of a machine in Europe. And by the use of the blueprint the machine puts electrical charges on a disk or on a hard drive, and that it seems to me does bear out the blueprint analogy. And if it does, then any export of a blueprint or indeed the simple export, the simple sending of the '820, if that's the right number, patent in this case would be a violation.
05-1056 +++$+++ 34025 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I have to disagree, Justice Souter, because the blueprint -- the patent is not the actual series of commands that runs the machine and neither is the blueprint. The blueprint is instructions, to be sure, and it can be reflected in intangible code, but it's instructions about how to make something and once it's made it's done. You can say, as Mr. Olson did, that the design is embodied in the thing that is made. The blueprint for a semiconductor chip in some sense is always reflected in that chip. But if you don't like the chip you have to get rid of it. Software can be -- if you don't like Microsoft Word, you can download it and you can delete it and download WordPerfect and use that. And what happens in the computer -- and I think this does bear on what the nature of the component is and why in the ordinary sense of the word "component" and the ordinary sense of the words "supply" and "combine," they apply naturally to what Microsoft does. I mean, is a disk, is a typewriter, is a screen, is a hard drive, is a CPU a component? Are they components when they have the code embedded in it? Of course. But that doesn't -- a tire doesn't become not a component of a car just because a tire with a wheel attached to it is also a component. The question is --
05-1056 +++$+++ 34026 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But suppose, suppose you had a machine that makes another machine, and if you ship that machine to Europe -- and there's a patent for the machine that makes it. If you ship it to Europe and it starts making another machine, the statute is not violated; and isn't that just what's happening here?
05-1056 +++$+++ 34027 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no, no. This is not a machine tool. The thing that was violated, the machine readable object code, is precisely what is installed on the computer and precisely what is moved from one part of the computer to another in different forms as the computer operates and it continually instructs. This is dynamic. It's not --
05-1056 +++$+++ 34028 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How would you, how would you -- go back for a second, please, because, if you're finished with that, because I don't see how to decide for you without at the same time permitting a person to walk over to the Patent Office, to read that application and the description, which after all at least can be a very highly detailed set of instructions of how to make a machine, getting on the phone, explaining that just like the blueprint which it is just like to somebody in Europe. They then make it. And that on your reading would violate the statute. It can't be right that that would and you don't even think it would.
05-1056 +++$+++ 34029 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't because --
05-1056 +++$+++ 34030 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so what's the difference between that and this case for you?
05-1056 +++$+++ 34031 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, there is a long, long spectrum with respect to software that goes, goes from high level system architecture to all the way down through component architecture, pseudo code, source code, which is, which is a description that humans understand, and the actual machine language that a computer will understand. Invention -- patents do not specify machine language. The machine code is totally dependent on what type of processor it's relating to and somebody who takes source code -- I could make an argument that if you take, steal the Microsoft source code, which is the crown jewel, it is the greatest trade secret of this country, it will not be sent overseas, but if somebody took it with a bunch of smart engineers and said, you know, convert this into, convert this into something a computer will understand that will combine with a computer, that involves a question of whether what's going on overseas is manufacture as opposed to assembly. Look at it from the perspective -- maybe this helps. Let's look at the question from the perspective of Microsoft, the OEM, and the user overseas. Object code is the end of Microsoft's manufacturing process. That is what they make. They don't make hard drives, they don't make disks, they don't make computers. They fully finish their product, the Windows operating code, and then send it overseas. The OEM is --
05-1056 +++$+++ 34032 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That, that code is not patentable, you've said.
05-1056 +++$+++ 34033 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The code is not patentable. The expression is copyrightable. AT&T has not sought to get a patent on the code. AT&T has a patent on a system that can be practiced, among other ways, through the use of software.
05-1056 +++$+++ 34034 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what is it that they export and send overseas?
05-1056 +++$+++ 34035 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They export in a variety of different physical forms --
05-1056 +++$+++ 34036 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right, it's a thing. It's an object of some sort, isn't it?
05-1056 +++$+++ 34037 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is an intangible sequence of commands that is carrying --
05-1056 +++$+++ 34038 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It is an object that has coded onto it, transferred to it in a readable way, those commands. But it's an object, isn't it?
05-1056 +++$+++ 34039 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's not necessarily an object. I don't know whether you would call a stream of photons that is constantly repeated under the Atlantic Ocean an object.
05-1056 +++$+++ 34040 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Waxman, this may, this may help focus that question. Suppose the master disks were made abroad. You would be taking the same position, would you not?
05-1056 +++$+++ 34041 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If -- that depends how it were made. If it were --
05-1056 +++$+++ 34042 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I hope we can continue calling it the golden disk. It has a certain Scheherazade quality that really adds a lot of interest to this case. (Laughter.)
05-1056 +++$+++ 34043 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, the question is what is made. If making it means somehow creating, reconfiguring the precise sequence of commands --
05-1056 +++$+++ 34044 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. That's given by Microsoft to one of its offices in Europe. But the golden disk itself is made abroad.
05-1056 +++$+++ 34045 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the, if the object code itself, the very precise sequence that can't be changed, is supplied from the United States --
05-1056 +++$+++ 34046 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-1056 +++$+++ 34047 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the act is implicated.
05-1056 +++$+++ 34048 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So the only thing --
05-1056 +++$+++ 34049 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Regardless of --
05-1056 +++$+++ 34050 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The only thing supplied is this, one side calls it abstract, one side calls it something else. But anyway, it is the series of 0's and 1's; that's the only thing that's supplied from the United States?
05-1056 +++$+++ 34051 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
05-1056 +++$+++ 34052 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Any physical manifestation of it is done abroad. You would still be taking the position that you're taking, is that not so?
05-1056 +++$+++ 34053 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, yes, except that the intangible sequence of commands can only be carried in the form of, by attaching it to a physical platform or a bucket.
05-1056 +++$+++ 34054 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but it doesn't have to be --
05-1056 +++$+++ 34055 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Even a radio wave. Microsoft has patent claims for software.
05-1056 +++$+++ 34056 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The physical object does not have to originate in the United States. Can they not transmit the commands to a physical object in Germany and have that be the substitute for the golden disk?
05-1056 +++$+++ 34057 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, of course, and they do that.
05-1056 +++$+++ 34058 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
05-1056 +++$+++ 34059 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They press a button and they have an electronic transmission that sends a stream of protons under the Atlantic Ocean and are changed into electrical impulses that are used to inscribe the precise code onto a hard drive in the form of electromagnetic pulses.
05-1056 +++$+++ 34060 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But that they now send to some central point which redistributes them. They send one copy to, say, the wholesaler, who then makes 500 copies that are sent to the retail customers, isn't that correct?
05-1056 +++$+++ 34061 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That may be. We don't --
05-1056 +++$+++ 34062 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Which is exactly what happens in this case?
05-1056 +++$+++ 34063 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's one of the things that happens in this case. We have a stipulated record that is not very detailed, but in that instance there is only one violation.
05-1056 +++$+++ 34064 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ My question is if that is what happens, when the retransmission takes place when one copy is converted into 500 how can those 500 all be components rather than copies of the single component?
05-1056 +++$+++ 34065 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the only -- I have two answers to that question, both of them I think directly answering your question. First of all, the statute is violated only when the precise object code is expatriated from the United States, when it is supplied from the United States. That's the violation. The other issues are damages, what damages are you entitled to. What is combined with the computer is the precise thing that is supplied because it is the precise sequence of commands.
05-1056 +++$+++ 34066 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But is there any precedent for that sort of thing? That is, I understand your point now, I think, but however you put it, it has to come down to the fact that this very, very complex and detailed thing that is being supplied is an abstract set of numbers. And I can understand how the patent application does not itself contain that set of numbers, but rather contains an instruction as to how to generate that set of numbers. But I then would be quite frightened of deciding for you and discovering that all over the world there are vast numbers of inventions that really can be thought of in the same way that you're thinking of this one, and suddenly all kinds of transmissions of information themselves and alone become components. So I'm asking you, is there any outside the computer field analogous instance where the transmission of information has itself been viewed as the transmission of a component?
05-1056 +++$+++ 34067 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not aware of any. In the lower courts, Microsoft was arguing that the biotech industry was an analogy, but there is some very obvious differences between what is supplied in terms of object code that instructs a machine and a, you know, a sequence of nucleotides, the abstract sequence of nucleotides. But I think we need to be quite precise here. We are not complaining that the component is an idea. We're not complaining -- we're not arguing that a component is some form of information. What we're saying here is -- I mean, nobody is paying billions of dollars from an idea. When the commands are loaded onto the hard drive of a computer in the form of electromagnetic orientations and when you press a button saying give me NetMeeting, and the processor says -- and this is what electrical engineers say -- fetch the instructions, fetch the commands to the random access memory where it's -- where it is there reflected in a -- in a form of patterns of electrical charges. And when the code then moves back and forth, the instructions move back and forth from the CPU and RAM, they -- they -- millions of times a second they are replicating themselves.
05-1056 +++$+++ 34068 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, is it an answer to Justice Breyer, or maybe it isn't, that we have no conceptual problem saying there would be liability if this happened within the territorial limits of the United States?
05-1056 +++$+++ 34069 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely not.
05-1056 +++$+++ 34070 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so there shouldn't be a greater conceptual problem if you prevail, in applying it abroad.
05-1056 +++$+++ 34071 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
05-1056 +++$+++ 34072 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, sure, there is. It's a bigger --
05-1056 +++$+++ 34073 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If I can, I just want to make sure I answer your question.
05-1056 +++$+++ 34074 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's totally different in that of course it violates the patent in the United States. The whole question here is whether or not the person has to go get a patent in Germany, which he can do or not do. And the -- the concern that I'm worried about is in the future it might be outside your field, it might be in biology, but if you suddenly say that the transmission purely of information is the transmission of a component, no matter how detailed, I can easily see in biology or medicine where a patent has an instruction and indeed, that instruction is an instruction to create other detailed procedures, processes, dishes, Petri dishes, I don't know what it is, and we transmit that detailed information abroad. Then suddenly it's our patent law and not the foreign patent law that would govern. That's why I asked for precedent.
05-1056 +++$+++ 34075 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. First of all, this statute does not reach anything that is done overseas. It doesn't reach what the German OEM does. It doesn't reach what anybody does overseas. It -- it makes liable as an infringer somebody who supplies -- who is in the United States who supplies from the United States a component with the intent, with the express intent that that component be combined in a way to create a device that would practice a U.S. patent. Now I don't believe -- I firmly am confident that if you look at what's at issue in this case, there may be all sorts of questions about what is or isn't a component. I might think that a design is a component or it isn't a component, but think of these three features: One, this is something that is totally modular. It is developed, bought and sold entirely independent of any of the hardware to which it is, with which it is combined, and between which it moves continuously as it operates. Number two, it can be removed or updated entirely independently of the other components. And it is dynamic, unlike designs, unlike molds, unlike instructions about how to make something, all of which are exhausted. They have done their work when the thing is made. That's why those things are called hardware.
05-1056 +++$+++ 34076 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. But --
05-1056 +++$+++ 34077 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ These are instructions not about how to make something. They are instructions about what the other things that are made should do and how they do it.
05-1056 +++$+++ 34078 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You can perfectly well say that in this case. You can say that the instruction is exhausted once the golden disk has sent its information through an intermediary machine onto the new disk that is made.
05-1056 +++$+++ 34079 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You could not say that because if you take the information from a golden master or a stream of photons and put it on a hard drive, unless that continues to move and change in form, the computer will not work. The computer operates by having you press a button saying do this function. The central processing unit then says where are my instructions on how to do it. It says find them and put them in random access memory, where it is then replicated in the form of patterns of electrical charges, quite a different physical form than it exists on the hard drive. And the program counter --
05-1056 +++$+++ 34080 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That simply means that after the -- the -- the -- the idea as you put it, has been placed on the hard drive, certain other processes must take place too before we get the result that people are buying computers to -- to obtain. But it's still the case that the -- that the code on the golden disk is exhausted once that has been transferred from the disk through an intermediary machine on its way ultimately to a working computer just -- and my only point is -- just the way you can say that the blueprint in effect is exhausted once the house has been built.
05-1056 +++$+++ 34081 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not because the blueprint has no further work to do. It was something that --
05-1056 +++$+++ 34082 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Sure. You can use it again.
05-1056 +++$+++ 34083 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Something you teach, has no further work to do with respect to the infringing device, but the object code works continuously and gives continuous instructions to the various hardware components completely unlike. But let me go to --
05-1056 +++$+++ 34084 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The object code has several jobs. One job when embodied on the golden disk is tell a -- is to tell a machine how to make disks or how to put a message on a hard drive. Another job that the object code has is when the object code gets on the resulting disk or the hard drive. But in fact, the manifestation of the object code on the golden disk and the manifestation of the object code on the resulting disk are separable, just as the blueprint is separable from what is constructed.
05-1056 +++$+++ 34085 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, just taking your -- taking that as -- that as the case, the United States in footnote 2 of its brief repeats what Microsoft argued in the court of appeals and the district court, which is that if it took instead of one golden master, but 100,000 CDs, which is what a golden master is, one for each computer, that would be a 271(f) infringement. But that also requires copying and transforming the code that is on the CD-ROM which is in the form of physical pits and lands and indentations, and downloading it into the hard drive where the same exact sequence is manifested as varying orientations of electronic, electromagnetic fields, and that is no different whatsoever than this case. If you say, well, what destroys you in this case is that the code has to be copied, replication, precise instantaneous replication is simply how software works. It's not just how it's supplied. It's not just how it's combined. It's how it interacts dynamically within the computer. And that's why we say it's a component. Let me just be clear about what the statutory interpretation question here is. It's not as whether our conception of the component as the code -- as the -- as the command is better than their conception of the component as a CD or a light wave or a telephone wire that contains that. The question is, there may very -- it may very well be both things. The question is whether the word component naturally applies to what we do. And our -- we have given dozens of references to the use of intangible software, program software as components. We have given you the dictionary definition with an example from Webster's. They have not responded with one counter-example. The only dictionary example they provide you relates to the word "such", and it's in their reply brief on page 5. But they have given you not the first definition of such under Black, in Black's Eighth, they have given you the second one. The first one is, of this or that kind, she collects a variety of things. And that definition, under that definition it wouldn't matter whether you said, well, the component has to be physical or, you know, it could be either. Because even if it has to be physical --
05-1056 +++$+++ 34086 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can you think of any machine -- can you think of any machine other than a computer that has a component that is not a physical thing?
05-1056 +++$+++ 34087 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I can't. And that's why it seems to me, I mean -- and there are -- there are machines that have nonphysical things in them but not that operate in the sort of same dynamic way. We gave the example of the intangible text of Moby Dick in a book. And they give the example of, you know, an incredibly complicated series of circuits on a -- on a chip. But those don't continue to operate and interact in the way that this paradigmatic component does. Thank you.
05-1056 +++$+++ 34088 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Waxman. Mr. Olson, you have, let's see, four minutes.
05-1056 +++$+++ 34090 +++$+++ FALSE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Scalia. I mean Justice Stevens. (Laughter.) I was about to address Justice Scalia and recite the case -- cite the case Nixon versus Fitzgerald, which is directly responsive to the question Justice Scalia raised at the very beginning of the audience, that a stipulation with respect to damages does not make a case moot. And also with respect to a question raised by Justice Scalia, or a comment made by him, it doesn't have to be gold. It's a master disk.
05-1056 +++$+++ 34091 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm sorry.
05-1056 +++$+++ 34092 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What this essentially comes down to is something that Mr. Waxman repeatedly said. It is the commands that are a component. The commands to the individual foreign made computers. Those are -- those commands cannot be understood and cannot be used by that computer unless they are in a physical medium that is created as a copy of the master disk that sends abroad -- that's sent abroad. As I said at the beginning, the stipulation is full of the word "copies", foreign replicated copies. That's what we're talking about here, something that is recreated. And Justice Breyer, your question about someone who's got a really good memory and can go abroad and recite the 1's and 0's, pictures can be taken, copies can be made in lots of different ways. And in response to Justice --
05-1056 +++$+++ 34093 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ His answer to me is that -- that -- it's sort of misleading to think of this as if it's just information, because it's really a method that switches things at a level of detail that is impossible to put in a patent application. It's taking the information in a patent application, it's transforming it into what we think of as 1's and 0's, but they're not really even 1's and 0's. What they are is things that happen with electricity.
05-1056 +++$+++ 34094 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
05-1056 +++$+++ 34095 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it's putting that on the disk and then it makes other things happen.
05-1056 +++$+++ 34096 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree.
05-1056 +++$+++ 34097 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's putting something physical on a disk, pits and lands, instructions that are copied from the master disk and then put into either a hard drive or a disk, it's the same thing. It's something that is into the computer that will make the computer operate. You're right, Justice Ginsburg, that the court of appeals for the Federal Circuit thought it was bringing this statute up to date and it even said so. We are making an extension of the statute to keep up to date with the technology. That is not for courts to do. This Court is --
05-1056 +++$+++ 34098 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you saying that the infringement act that happened in the United States involved no components?
05-1056 +++$+++ 34099 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The infringement that happened in the United States which was under Section B, which provides Section B inducement liability for making copies domestically of -- the same thing that happened here. Copies of the object code were put on physical mediums and sent to domestic manufacturers. Domestic reproduction constitutes infringement under Section 271(b) but foreign reproduction is not a violation of Section 271(a) or 271(b). Hence, we're talking about the two sections where --
05-1056 +++$+++ 34100 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So they had a license to do that, because if they didn't have a license to make the master disk here in the United States, the making of it would have violated the patent; is that right?
05-1056 +++$+++ 34101 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The making of the master disk if actually used in a computer with a microphone and a speaker, and that's the liability that existed in the stipulation under 271(a). Making copies is liability domestically under 271(b). If it's going to be liable for foreign made replications, then it must be under 271(f). The language of the statute, we submit is clear. Physical things must be components under 271(f) because they must be supplied from somewhere. Ideas have no physical from. They're in the air. The words used, "supplied from" tells us that it must be a physical thing combined with. Ideas don't combine with physical things to make a patented invention. Physical things do. Thank you, Your Honor.
05-1056 +++$+++ 34102 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Olson. The case is submitted.
05-1074 +++$+++ 34107 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument next in Ledbetter versus Goodyear Tire & Rubber Company. Mr. Russell.
05-1074 +++$+++ 34109 +++$+++ FALSE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court. A jury found that at the time petitioner filed for charge of discrimination with the EEOC, respondent was paying her less for each week's work than it paid similarly situated male employees and that it did so because of her sex. The question for the Court is whether that present act of disparate treatment because of sex constituted a present violation of Title VII. This Court has already answered that question. Consistent with the law's traditional treatment of pay as arising from recurring transactions and giving rise to recurring causes of action, and consistent with the paycheck accrual rule everyone agrees Congress adopted for the Equal Pay Act, this Court in Bazemore versus Friday held under Title VII, each week's paycheck that offers less to an employee because of her race or sex --
05-1074 +++$+++ 34110 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But are you saying that the rule for paycheck decisions is different than the rule for other sorts of decisions?
05-1074 +++$+++ 34111 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it is. For example, the respondents give the example of promotion decisions but we think that there are analytical and well as practical and historical distinctions that Congress, that led Congress to treat pay differently. As a practical matter, while it's always the case or almost always the case that somebody knows they have been subject to disparate treatment in a promotion case -- they know that they didn't get the promotion and somebody else did -- -it is frequently possible for an employee to be subject to disparate pay without ever knowing that she has been treated differently than anybody else. And certainly --
05-1074 +++$+++ 34112 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That seems to me to work the other way around, just like the case we've just heard argued in the last hour. It's a question of specificity here. If the, if the employee, he alleges that promotions were based on experience and the employee didn't have the experience because of past discrimination, why is that different than the paycheck rule? I take it indicates that you would not allow the, a cause of action unless the discrimination was within the statute of limitations period?
05-1074 +++$+++ 34113 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes. A promotion -- discrimination in promotion is different analytically than with discrimination with respect to pay decisions themselves. Because in a promotion decision the employee is deprived of the opportunity to take on added responsibilities and therefore earn more pay, but in, but the pay itself is not discriminatory in the sense of treating people doing the same work differently.
05-1074 +++$+++ 34114 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't really see a vast difference between a promotion and being elevated to a higher pay grade. I mean, there may be no different responsibilities but it's a single act of discrimination: "No, you're not going to move up to the next pay level." I don't see why that's different from "no, you're not going to move up to the next job."
05-1074 +++$+++ 34115 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because, I think the difference is that when somebody is denied a promotion for discriminatory reasons the paychecks themselves are not discriminatory. They treat similarly situated workers differently.
05-1074 +++$+++ 34116 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Russell, I thought that your argument was that yes, you know that you haven't got the promotion, you know you haven't got the transfer, but the spread in the pay is an incremental thing. You may think the first year you didn't get a raise, "well, so be it." But you have, you have no reason to think that there is going to be this inequality. I mean she started out getting the same pay, right?
05-1074 +++$+++ 34117 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and that practical distinction I think does support Congress's decision under the Equal Pay Act as well as under Title VII to choose a paycheck accrual rule because it's frequently that even if an employee knows she has been subject to disparate pay, it's frequently very difficult for her to have a good faith belief that that pay is intentionally discriminatory without more information. So for example, if you look at that chart on page 174 of the joint appendix, which summarizes the pay decisions for one of the years at issue here, if petitioner knew only the pay raise that she got that year, she would know that she got a 5.28 percent raise which is not - which is not suspicious. If she knew what Mr. Conte had gotten, she would know that in fact that pay raise decision decreased the disparity between her pay and Mr. Conte's pay. If she knew what also happened with respect to Mr. Bice she would see he got a higher absolute raise than he did, but she got a bigger one than Todd. It's only if petitioner had all of the information in this chart, that she would know that that pay raise decision increased the overall disparity between her wages and the average wages of men doing the same job. And even then the amount of that disparity, standing alone wouldn't provide a sufficient reason to go claim intentional discrimination to the EEOC.
05-1074 +++$+++ 34118 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How does, how does time solve that difficulty?
05-1074 +++$+++ 34119 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's only after -- one would expect in a merit system that there would be some level of variation in the area and that would work out over time. It's only when it doesn't, when the disparity persists, when the different treatment accrues again and again and the overall disparity in the wages increases, that the employee has some reasonable basis to think that it's not natural variation in the pay decisions but actually intentional discrimination. In the paycheck accrual rule that's been applied by the lower courts for more than 20 years without incident, adequately balances the interest of employees and being able to come forward once they find out that there is a reason to suspect discrimination, with an employer's reasonable interest in avoiding having to defend stale claims. I think it's important to note that the Equal Pay Act, which everybody agrees has a paycheck accrual rule, imposes all of the same burdens on employers that respondents allege would have led Congress to never impose a paycheck accrual under Title VII.
05-1074 +++$+++ 34120 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What happened to the Equal Pay Act claim? You started out with a Title VII claim and an equal pay claim and somewhere along the way the equal pay claim dropped out.
05-1074 +++$+++ 34121 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It did. The magistrate judge initially recommended dismissing both the Title VII and equal pay claims on the grounds that there was a nondiscriminatory reason for the disparity. The District Courts held that there were fact disputes that precluded that conclusion, but for some reason only reinstated the Title VII claim.
05-1074 +++$+++ 34122 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why didn't you ask for the equal pay claim? As I understand the magistrate judge he said, yes, you had made it across the first hurdle, you had a prima facie case. You showed that you're a woman, and you're getting this and all the men are getting much higher. But the employer has come forward with any other factor other than sex and the other factor is that, your inadequate performance.
05-1074 +++$+++ 34123 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We should have objected to the failure to reinstate the Equal Pay Act claim. We didn't; we didn't think it was that important and the time because we still had the Title VII claim.
05-1074 +++$+++ 34124 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because in the Title VII case assuming you're right, that you get across the same threshold, you're faced with the same defense. Right?
05-1074 +++$+++ 34125 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. It's essentially the same case kind of case in each instance. Although the jury has to find intentional discrimination in the Title VII case; under the Equal Pay Act the jury has to determine whether the employer has shown that the present disparity is the result of some factor other than sex. And so in both cases, the jury always has to consider the basis of prior decisions that are the cause of the present disparity.
05-1074 +++$+++ 34126 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you have to show that at the time when a particular paycheck in question is issued, there was an intent to discriminate?
05-1074 +++$+++ 34127 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The execution of a prior discriminatory decision constitutes a present violation of Title VII. It's frequently --
05-1074 +++$+++ 34128 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What if the situation is that when the particular paycheck is cut, the company, the employer, whoever it is, has no intent whatsoever to discriminate? They think that they are issuing this pay on a totally nondiscriminatory basis?
05-1074 +++$+++ 34129 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It still constitutes a violation because they are executing a present disparity that is because of sex within the meaning of the statute.
05-1074 +++$+++ 34130 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So if 15 years earlier a discriminatory decision was made to give a pay raise of 4 percent rather than 5 percent, and that over the 15 years became the basis with other raises, you think you can challenge the discrimination 15 years later and say well, this was discriminatory because 15 years ago I didn't get a raise and that, carried forward, had a ripple effect into the current 180-day period.
05-1074 +++$+++ 34131 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. That kind of claim would be timely under Section 706. The employer would have an awfully good laches defense.
05-1074 +++$+++ 34132 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would that be true if there were a change in ownership of the company, so the discrimination originally occurred under owner A, then the company is purchased by owner B, completely unrelated, and the, the disparity is used for bonuses, etcetera?
05-1074 +++$+++ 34133 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would depend on the general rules for attributing a liability from a successful --
05-1074 +++$+++ 34134 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, under the, under the answer that you gave to the Chief Justice and the rule you propose, what of the case of differing ownership?
05-1074 +++$+++ 34135 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would think that they are still responsible in the same way that they are responsible for other actions that the prior company took.
05-1074 +++$+++ 34136 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that, but that would not be the result if the reason for the disparity between 4 percent and 5 percent was not a, a denial of a pay increase to a higher pay level, but rather denial of a promotion to another job.
05-1074 +++$+++ 34137 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-1074 +++$+++ 34138 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If that were the case, then it washes out and you have to challenge it right away.
05-1074 +++$+++ 34139 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. And we think --
05-1074 +++$+++ 34140 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does that make any sense?
05-1074 +++$+++ 34141 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that it does for the reason that I said before, that that kind of consequence is a secondary effect of the prior unlawful employment practice, but under Evans, which that kind of problem goes to --
05-1074 +++$+++ 34142 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you could call it a secondary effect but the only reason you want to get promoted to another job is to get more money. I think it's a primary effect.
05-1074 +++$+++ 34143 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well even if the Court didn't think that this is a completely satisfactory analytical line to draw, as I said before there are good practical reasons for drawing it, and every reason to think that Congress did draw it, because Congress enacted this statute against the background legal principle that pay, that the pay aspects of the employment relationship arise out of recurring transactions and give rise to recurring causes of action. And that's the rule that everybody acknowledges Congress adopted under the Equal Pay Act. And to hold that there is a different rule under Title VII would for example lead to the anomalous proposition that Congress intended to permit women, a white woman in 1967 to challenge the present disparity in her pay, but not a black man under Title VII because the discrimination there was racial. We don't think that Congress intended the two acts to perform in such dramatically different ways. In fact --
05-1074 +++$+++ 34144 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, Congress could have specifically provided for the Equal Pay Act rule under Title VII, but it didn't do that.
05-1074 +++$+++ 34145 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it didn't have the same elements, but there's no reason to think that the difference in the elements --
05-1074 +++$+++ 34146 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It didn't have the same defenses because the Bennett amendment makes the defenses under the Equal Pay Act applicable under Title VII, right?
05-1074 +++$+++ 34147 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. And as a result the claims and the process of adjudicating both kinds of claims are not significantly different.
05-1074 +++$+++ 34148 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose you go back to the 15 year old action which led to disparity that continues up to today, and suppose at the beginning or in July of 2006 the woman discovers it and brings her claim and suppose she wins. Now, is it the case -- and here I'm uncertain. I thought there was some rule in respect to getting damages that you could only go back 2 years?
05-1074 +++$+++ 34149 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is a provision of Title VII that limits back pay to at most 2 years.
05-1074 +++$+++ 34150 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And in that case would it mean that in this case where it happened 15 years ago and she won, but she didn't bring her act until August of 2006, that she could only then collect the extra money for the preceding 2 years?
05-1074 +++$+++ 34151 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-1074 +++$+++ 34152 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it isn't going to open up tremendous liability for 15 or 20 years ago.
05-1074 +++$+++ 34153 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely right, and in fact there's no reason to think that such claims are particularly common. This has been the rule in effect for 20 years in the lower courts and respondent is unable to show any actual evidence that these kinds of claims are common. But much more common are instances in which an employee has no reasonable basis for filing a charge of discrimination within 180 days of the disparity.
05-1074 +++$+++ 34154 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I suppose all they'd have to do is allege that sometime over the past -- I mean, it doesn't have to be 15 years. It could be 40 years, right -- that there was a discriminatory act, in one of the semi-annual pay reviews I was denied this, a raise that I should have gotten. It may have been 20 years ago. It may have been 40 years ago.
05-1074 +++$+++ 34155 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They can certainly make that allegation, but the employer is left open to avail itself of the equitable defenses and they'll have a very easy time of showing that there's been undue delay.
05-1074 +++$+++ 34156 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where does it say --
05-1074 +++$+++ 34157 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why is that if they just discovered it? I just learned about what happened 30 years ago at this company and it's -- I filed right away. There's no laches.
05-1074 +++$+++ 34158 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In that case --
05-1074 +++$+++ 34159 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But then they have to go back and litigate what happened 30 years ago.
05-1074 +++$+++ 34160 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do acknowledge that a traditional laches defense would be more difficult than those --
05-1074 +++$+++ 34161 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought your answer before was that this is not -- if she's going to bring a case I got a 2 percent raise, he got a 3 percent raise, her chances are very slim, but if this builds up year by year to the point where see is saying, I'm being denied equal pay, it's a requirement of the anti-discrimination law that I get equal pay, so today I'm not getting equal pay, I thought -- I mean, the chance that she could win when she gets a salary review and she gets a little less than the other person are nil.
05-1074 +++$+++ 34162 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and it's only after that same kind of decision has been repeated over a number of years that you actually have a case that you can bring to the EEOC. But under respondent's view by that time it's too late.
05-1074 +++$+++ 34163 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's not your theory. I mean, if it happened once 20 years ago you have a case that you can bring, isn't it?
05-1074 +++$+++ 34164 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, but the practical --
05-1074 +++$+++ 34165 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You've got a memo that says we're going to pay, 20 years ago, we're going to pay males this much and we're going to pay females this much, and she says that obviously affected my pay over the ensuing 15, 20 years.
05-1074 +++$+++ 34166 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, but the paycheck accrual rule also serves the function of the much more common case in which somebody doesn't derive notice of the potential discrimination until the discrimination has been repeated over time.
05-1074 +++$+++ 34167 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But isn't your position that an employer violates Title VII unless the employer periodically reviews the entire pay record of every employee to make sure that there has never been an uncomplained of act of discrimination at any point in the past that would have a continuing present effect on the amount of money that the employee is paid?
05-1074 +++$+++ 34168 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. They certainly have an incentive to do that under both the Equal Pay Act, which everybody acknowledges puts the employer subject to liability for any present disparity based on any prior decision that can't be justified as based on some factor other than sex, and that incentive has been around for a very long time and respondents aren't able to show that that's been an unmanageable burden. But employers as a matter of basic agency law know from the very beginning whether or not they've been paying the plaintiff less because of her sex.
05-1074 +++$+++ 34169 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How do they know that? 10 years ago the employee got a particular, got a particular job evaluation and that dictated the amount of pay that that employee was going to get for that period and all, all subsequent pay built on that base, and then it turns out many years later that there was discrimination in the way the employee was evaluated way back when, even though there was no complaint about it; then under your theory that would be a present Title VII violation, to cut a paycheck that built, that was based on pay that was built on this act of discrimination that occurred long ago?
05-1074 +++$+++ 34170 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because this Court made clear as recently Faragher that when an employer delegates pay-setting authority to a supervisor the discrimination undertaken by that supervisor is imputed to the employer as a matter of agency law principles.
05-1074 +++$+++ 34171 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, yeah, but that assumed a present discrimination, and it seems to me the problem that we've got is the problem of connecting a past discrimination with what may in fact be an apparently neutral act 15 or 20 years later.
05-1074 +++$+++ 34172 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think that the proof that the act is discriminatory is any more difficult or any more difficult in concept when it happened several years ago than when it happened 180 days ago. It's still the employer -- the employee still has to show that the present disparity is because of sex. And the fact that it may be more difficult as a practical matter is something that the court can take into account under a laches defense.
05-1074 +++$+++ 34173 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does he have to know that the present decision to continue the pay structure is discriminatory?
05-1074 +++$+++ 34174 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. It's enough that the employer knows as a matter of basic agency law that the petitioner is being paid less because of her sex, because of prior discriminatory decisions.
05-1074 +++$+++ 34175 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The -- as I remember the facts of this case, wasn't it in 1995 that she got a substantial raise and the reason, according to her supervisor, was that he noticed that her pay was below the minimum of the appropriate range for her job?
05-1074 +++$+++ 34176 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true. She did get a higher raise that year and that was his testimony. He also testified that he had told her differently, that she had done a very good job that year and that's why she had gotten it, and the jury was entitled to believe that.
05-1074 +++$+++ 34177 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I didn't understand one of your answers. Supposing that today the management does not know of the prior discrimination. Just, records that have been lost, it happened a long time ago. But there was evidence that there was a firm policy that women get 20 percent less than men forever and it's still -- that policy has continued up to date, but that these people making the decision today did not know that. Would there be liability or not?
05-1074 +++$+++ 34178 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There would.
05-1074 +++$+++ 34179 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought you said the other. That's why I was --
05-1074 +++$+++ 34180 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I apologize if I was unclear about that. There would be liability, and basic agency law principles impute to the employer those prior decisions. So it's not possible for Goodyear as a matter of law to claim that it did not know about those decisions when they occurred, and I'm not aware of any principle of agency law --
05-1074 +++$+++ 34181 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the question is whether or not there was a discriminatory act and if the employer, let's say it's an employer that has just purchased a business, thinks that it's a neutral criterion to base wages or bonuses or increase on a prior pay scale and he doesn't know about the prior discrimination, why isn't that a defense?
05-1074 +++$+++ 34182 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It may be a defense. I'm not quite certain how agency law principles apply in that circumstance when there's been a change of ownership. But certainly when there hasn't been it's not unfair to the employer to say that so long as you base present pay on long past decisions it's your responsibility to make sure that that present pay is not discriminatory.
05-1074 +++$+++ 34183 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And it's not enough presumably for somebody to come in and even up everybody? I mean, if you see that the women are making 20 percent less than the men you don't escape liability by paying everybody the same going forward, because perhaps if nondiscriminatory decisions had been made the women would have making 20 percent more than the men. You have to go back and revisit every pay decision or you're exposed to liability for current pay.
05-1074 +++$+++ 34184 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, that they have an incentive to do so. They also have that incentive concededly under the Equal Pay Act and nothing in this Court's decision in this case is going to remove that incentive or that burden. And the fact that Congress didn't find that burden inappropriate under the Equal Pay Act is good reason to think that Congress wouldn't have thought it was inappropriate here.
05-1074 +++$+++ 34185 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what is your burden to prove? You've talked about their burden to go back when -- do I understand it that your view is that the only thing you have to prove is that in this case a woman was being paid at a rate which is different from the rate of a man doing a comparable job?
05-1074 +++$+++ 34186 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, that's not our position. We have to prove in addition that that disparity is because of sex, which necessarily --
05-1074 +++$+++ 34187 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you too then have to go, unless you can find a present policy to discriminate on sex, you too in your proof have to go back whatever it may be, you know, the 15 or 20 years?
05-1074 +++$+++ 34188 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and the longer that an employee waits the longer it is for her to sustain her burden of proof on that score. And in fact --
05-1074 +++$+++ 34189 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why is that true? I mean, it depends. I suppose it may be harder for the company to mount a defense over time, so it may be to her advantage to wait.
05-1074 +++$+++ 34190 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But if the employer can show in fact that there is a disadvantage, that there is prejudice, it can ask the court to limit the scope of the claim or eliminate it entirely under an equitable defense such as laches. I think it's important to keep in mind that this is not the first time that this Court has struggled with this question when does the unlawful employment practice occur in a disparate pay case. This Court confronted precisely that question in Bazemore and held that -- and rejected the Fourth Circuit's interpretation in that case that the present payment of a disparate wage was simply a consequence and not in itself a present violation of Title VII?
05-1074 +++$+++ 34191 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What do you say of the explanation that was given in Bazemore? I forget the subsequent case. It was in footnote 6. You know what I mean. Which referred to Bazemore as a case that involved a present discrimination which, which is inconsistent with your theory. What do you say about footnote 6?
05-1074 +++$+++ 34192 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think it's inconsistent. There was present discrimination. There was, people were being paid less and it was because of their race. It just so happened that the because of their race was based on a decision that was made before the effective date of the act. I don't think --
05-1074 +++$+++ 34193 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the policy -- I thought the assumption was that the policy was in fact a policy which, which was sort of currently honored and intended to be honored by the company, whereas the case that we're concerned about is the case in which there was a discriminatory act, you know, 5, 10, 15 years ago. Nobody remembers the discrimination now. It's just that it continues to have these ripple effect consequences. I would have thought that the subsequent explanation in Bazemore would have been inconsistent with your position with respect to the current ripple effect.
05-1074 +++$+++ 34194 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't think that's an accurate description of what was going on in Bazemore. Recall, for example, that there were plaintiffs in Bazemore --
05-1074 +++$+++ 34195 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, do you take -- I'm sorry, I can't think of the name of the case. You know the case that I'm talking about with the footnote?
05-1074 +++$+++ 34196 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Lorance?
05-1074 +++$+++ 34197 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I guess. Do you think that the Court in the footnote misstated Bazemore and that therefore we should trust to Bazemore and not the subsequent explanation?
05-1074 +++$+++ 34198 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I thought -- I'd take the footnote in Lorance, if that's what you're referring to, to simply say that, like a facially discriminatory pay policy which discriminates every time it's implemented, a facially discriminatory seniority policy that discriminates every time it's implemented, the Court was -- considered in Bazemore a similar kind of recurring violation because, just like a facially discriminatory policy, a discriminatory pay structure or pay decision treats differently -- similarly situated people differently every time it's implemented.
05-1074 +++$+++ 34199 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that assumes that the company in effect says, we have a pay structure and our pay structure as it is now treats people differently depending on sex, race, or whatever. And that's not the kind -- that's something very different from the ripple effect argument.
05-1074 +++$+++ 34200 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that it is. For example, remember that in Bazemore there were plaintiffs, workers who were hired after the merger, after 1965, and when they were hired they were paid the same rate as the white employees, and the disparity in their wages in 1972 arose solely because of the discriminatory application of a merit-based pay raise decision, system, which is exactly the same kind of claim that we're making in this case. But this Court nonetheless held that continuing to pay workers, those workers, less than similarly situated whites because of that discrimination that occurred before the effective date of the act was still a present violation of Title VII.
05-1074 +++$+++ 34201 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let me ask this question. Supposing in the annual review before a promotion is concerned the officer making the recommendation was instructed not only to decide what increase would be appropriate but also to review past history and decide whether or not the employee was being paid fairly in a nondiscriminatory basis and that was part of the assignment. Would you have a case if that were the case?
05-1074 +++$+++ 34202 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The plaintiff would be required to show that that de novo decision was intentionally discriminatory.
05-1074 +++$+++ 34203 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You couldn't rely on the past history in that situation?
05-1074 +++$+++ 34204 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
05-1074 +++$+++ 34205 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because I think that's sort of what Justice -- Judge Jofla thought was going on here.
05-1074 +++$+++ 34206 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that he -- he couldn't have thought that because the facts are absolutely clear and Goodyear acknowledges in this Court that the pay system that they had in place simply made an annual decision whether to make a marginal increase into the raise and took the prior salary as given. If I could, before I sit down, I'd like to make the point that to the extent the Court doesn't think Bazemore decides this case, and doesn't think that the statute is clear on this question, it should defer to the expert opinion of the EEOC on this question in which they have particular expertise because they see thousands of these claims every year. They know better than anybody else whether the paycheck accrual rule is unworkable in practice, or that the pay decision accrual rule will lead to the elimination of many claims that Congress would have intended to preserve. If I could reserve the remainder of my time.
05-1074 +++$+++ 34207 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you counsel. Mr. Nager, we'll hear now from you.
05-1074 +++$+++ 34209 +++$+++ FALSE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: This Court has repeatedly said that a claim of intentional discrimination is timely and actionable only if it concerns intentionally discriminatory acts taken during Title VII's charge filing period. And the question presented in this case asks the Court to hold that a disparity in pay states a timely actionable claim for intentional discrimination if it is merely the result of allegedly discriminatory actions taken outside of the charge filing period. The question presented is inconsistent with holding after holding of this Court. When Goodyear issued paychecks during the charge filing period, it did not commit intentionally discriminatory acts. No one at Goodyear took Miss Ledbetter's sex into account during the charge filing period in deciding what to pay her.
05-1074 +++$+++ 34210 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Nager, can I test your theory with a hypothetical question? Supposing 20 years ago, there was an actual written policy statement, we pay women 20 percent less than men. And that was written up and everybody knew it. And then nothing changed for the next 20 years, and the person then sued today. Would she be -- and there was no intent to do anything, this is just the way it's always been. Would she have a cause of action?
05-1074 +++$+++ 34211 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The answer to that, I think, is no, if I understand your hypothetical, if the employer was not intending to classify on the basis of gender.
05-1074 +++$+++ 34212 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If present intent was merely to do what we have always done, you have to go back 20 years to find out that what we have always done is the result of a policy decision made 20 years ago that we can hire women at a less expense than men so we will continue to pay the same rate. Would the per paycheck rule apply to that case?
05-1074 +++$+++ 34213 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the answer is it clearly would be untimely insofar as the allegation is that there is discrimination today merely because there was discrimination yesterday. Whether or not there is discrimination going on during the charge filing period, whether or not women are intentionally being treated differently than men, I think the answer, based upon your hypothetical, is no, given what you've said.
05-1074 +++$+++ 34214 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If the employer had a policy of paying women, all women, 20 percent less than men, and it continued that policy, surely it would know in the present day when it issued those paychecks that it was paying women less than men. So it would be intentionally discriminating at this time, wouldn't it?
05-1074 +++$+++ 34215 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Alito, that's why I qualified my answer to Justice Stevens, because I think that the question his hypothetical raises, like your question, goes to the sufficiency of evidence necessary to prove intent during the charge filing period. And I don't want in any way to be heard that there is anything in our position in this case that tries to answer that question. The reason I'm not trying to answer that question in this case is because that question is not before the Court except with one small respect. If the only thing that the plaintiff is relying upon is discrimination outside of the charge filing period, that is legally insufficient under this Court's cases in Evans, Ricks, Lorance and Machinists before it. What Bazemore dealt with was a case very much like your hypothetical, Justice Alito, of an allegation of an ongoing racial classification during the actionable time period. And it was because of that allegation of ongoing actionable racial classification and pay that there was both a timely claim, and according to Justice Brennan's opinion for all nine members of the Court of that -- in that case, a very serious potential error by the district court in that case as to whether or not it had been clearly erroneous in holding that the United States had failed its proof of proving an ongoing intentional race discrimination case --
05-1074 +++$+++ 34216 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Nager, why did it make any sense to treat this area any different from the Equal Pay Act.
05-1074 +++$+++ 34217 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because they are two different statutes and the elements of the plaintiff's claims are fundamentally different. That's the fundamental flaw in the petitioner's claim in this case. Let me explain, if I may, Justice Scalia. In a Title VII case, in an intentional discrimination case, the question is whether or not there is an act that is motivated by gender during the charge filing period. That is not an element of the plaintiff's cause of action in an Equal Pay Act case. In an Equal Pay Act case, all the plaintiff has to do is allege they are performing equal work to a male, and that they are paid differently. And it's that cause of action that triggers the statute of limitations in an Equal Pay Act case. That's fundamentally different. As Chief Justice Roberts said --
05-1074 +++$+++ 34218 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is it different if the one further statement was made. And the employer knew that every woman is being paid less than every man. Why isn't that sufficient under Title VII, and if you want evidence, your own supervisor said, oh, we saw one year that she was outside the range appropriate for this job.
05-1074 +++$+++ 34219 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, knowledge is a necessary condition, but it's not a sufficient condition, Justice Ginsburg. In Evans, the employer knew it previously had a sexual -- a gender-based discriminatory policy about whether or not female flight attendants could work after they got married. But that prior knowledge of prior discrimination by the employer wasn't sufficient to make the neutral action taken --
05-1074 +++$+++ 34220 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Evans involved a factor that simply is not present here. I mean, Evans involved a seniority system. And if this person who had been off the job were to come back two years later, and bump people who had been there every day, well, certainly that's a different case than this one, where she is saying, I should have been paid equally. I wasn't. And I know I can go back only two years. That's quite a bit different than the Evans situation.
05-1074 +++$+++ 34221 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, Title VII allows proof of dissimilar treatment as evidence of present intentional discrimination, but it's not the elements of the claim. As Chief Justice Roberts was pointing out, Title VII would prohibit paying a woman the same amount as a male if the employer would have paid the female more because she had a -- more degrees or other criteria that the employer ordinarily took into account. The elements of those two claims are fundamentally different. What makes this case untimely and unactionable is that there is no claim and there can be no claim because it's the law of the case that Goodyear took Miss Ledbetter's sex into account during the charge filing period. What Goodyear did was the same kind of neutral rule as in Evans. What Goodyear did was it said, we are looking at the pay rate contained in our payroll system, and applying those rates as they are mandated for all of our employees, male or female. And what Goodyear did at the beginning of each evaluation period was say, we are starting this payroll period with the pay rates that were paid in the last period for all of our employees, male or female, no matter what their prior causes.
05-1074 +++$+++ 34222 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If only the 180 day period counts, and she can complain only about discrimination in that period, then how do you account for her being able to go back not 180 days, but two years for her remedy?
05-1074 +++$+++ 34223 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The two-year rule is only a damages rule that applies only in Title VII cases. And it's triggered in cases such as where there has been equitable tolling or equitable estoppel, because the employer -- it was a promotion case or a pay case --
05-1074 +++$+++ 34224 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought it was the lid on the amount of compensation you could get in Title VII cases. You can't go back more than two years for damages. But it would seem that doesn't fit at all whether you can go back only 180 days.
05-1074 +++$+++ 34225 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. What the 180 days is for is determining the time period during which the allegedly illegal act must occur. That period can be tolled using a tolling rule. It can tolled for three years possibly. The back pay rule says, even if you tolled the statute of limitations for more than the two-year back pay period, you can only get back pay for two years. What is going on, of course, in this case, is they are trying to use allegedly discriminatory acts that occurred 10, 15, 20 years ago, both to make neutral acts actionable, and to get compensatory and punitive damages.
05-1074 +++$+++ 34226 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is she claiming that in 1995, a supervisor recognized that my pay was way out of line. Isn't that what the supervisor testified?
05-1074 +++$+++ 34227 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He did. And he said he raised her pay up the maximum amount he was entitled to that year. And she didn't file a charge of discrimination in 1995.
05-1074 +++$+++ 34228 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Maybe she thought that, well, they are on the right track. Next year, they are going to raise me up to the equal pay level.
05-1074 +++$+++ 34229 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And what the purpose of the charge filing requirement under Title VII, as this Court has repeatedly said, is to require that employee to come forward promptly within 180 days of the date that the alleged unlawful employment action is communicated to her, and bring that claim or lose it, that the purpose of Section 706 was to create repose.
05-1074 +++$+++ 34230 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The question that I asked Mr. Nager that I think is really important, and that is, where do you put these pay cases? Do you put it in the box with the hostile environment that builds up over time, and as long as the environment is hostile at the time you bring your complaint, then it doesn't matter that it started 20 years ago. This notion of one year, it's 2 percent, and the other person got 3 percent, you really don't have an effective claim unless it builds up to the point where there is a noticeable disparity.
05-1074 +++$+++ 34231 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, the petitioner in this case has agreed with us that this is the kind of discrete employment action that triggers the 180-day period. It is not like a sexual harassment claim.
05-1074 +++$+++ 34232 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where is that agreement?
05-1074 +++$+++ 34233 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's in their brief. They repeatedly quote the portion of Morgan which described pay claims as discrete acts subject to the discrete trigger rule in the Morgan opinion. And that, of course, is an obvious concession that they had to make in this case, because Mr. Russell would not concede when Justice Scalia asked that that first pay rate decision was not an identifiable act, that it wasn't an actionable -- immediately actionable claim.
05-1074 +++$+++ 34234 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought that the Morgan decision quotes Bazemore for saying, under Title VII, each week's paycheck that delivered less to a black than to a similarly situated white is a wrong, actionable under Title VII.
05-1074 +++$+++ 34235 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that's in the portion of the opinion that's dealing with discrete employment action. It's not in the portion of the opinion dealing with sexual harassment claims. I'm trying to answer your question about which portion of Morgan pay claims fall into.
05-1074 +++$+++ 34236 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Whatever portion it's in, it says each week's paycheck that delivered less to a black than to a similarly situated white is a wrong, actionable --
05-1074 +++$+++ 34237 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because Justice Thomas' opinion was accurately describing the holding in Bazemore on the facts of Bazemore, because in Bazemore there was a claim, in contrast to this case, of ongoing intentional race discrimination in classifying employees on the basis of their race and paying the black employees less than the whites. If the Court would look at the remand order in the Bazemore case, they'll see that the Court did not remand with instructions that judgment be entered for the United States merely because there was a disparity in salaries.
05-1074 +++$+++ 34238 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Justice Brennan's opinion sounds to me, part one, as if he is saying what the mistake was that the company made here is that they didn't really eradicate the effects of the past bad act, and they were trying to eradicate it.
05-1074 +++$+++ 34239 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, actually, the United States' allegations in the case were trying --
05-1074 +++$+++ 34240 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's another part of the case that's part two and part three about the evidence that came in. In fact, there are about six other parts. I'm just talking about part one.
05-1074 +++$+++ 34241 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's part one.
05-1074 +++$+++ 34242 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. All right. So I read that. Now, this is my this is my cost/benefit analysis here. If we follow the other side's rule, it's very simple, we just said Bazemore applies, whether there's a practice or whether it was a discrete thing, or whatever, so it's simple. But we do have to distinguish pay from the other kinds of things. And we have heard them explain why there is a distinction. I'd rather get to your side and then you can attack both, or whatever. Your side of it, it seems to me, if I agree to you, I now have to create in the law some kind of thing that sounds very complicated about whether that old bad thing was somehow a pattern or a practice that, as a pattern or a practice, didn't get eradicated within the last few years, or was a totally discrete act, and therefore, had no implication as a pattern or practice that didn't get eradicated. That sounds hard. And the second thing I guess I'd have to do is to create a lot of tolling law because there will be probably a significant number of circumstances where a woman is being paid less, and all she does is for the last six months get her paychecks and she doesn't really know it because pay is a complicated thing, and through no fault of her own, it takes about eight or nine months or even a year for her to find out. And we are going to have to toll, aren't we? So I have, legally speaking, a complicated tolling system that I have to graft on to this, your case. I also have to start distinguishing Bazemore which is pretty hard to do. But on the other side, they are just saying, go with the flow. Nobody is really hurt, because the employer has to worry about all this stuff anyway under the Equal Pay Act. I'm giving you that summary so you can just shoot it down.
05-1074 +++$+++ 34243 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it was a compound question, but I'll try to answer each of its parts. The first point I would make is that Bazemore came after Evans and Hazelwood and Ricks, and it did not distinguish Evans or Hazelwood or Ricks on the grounds that Bazemore is a pay case and Hazelwood and Evans were not pay cases. It distinguished them on the grounds of whether or not the alleged discrimination was taking place in the charge filing period. So this notion that Bazemore stands as a proposition that Evans and Lorance and that line of cases doesn't apply because they don't apply to pay cases was not the opinion of the Court in Bazemore. Secondly, we are not asking you, and I don't think it takes any difficulty to apply the rule that we are proposing in this case. We are proposing the same rule that's set forth in Justice Stevens' opinion for the Court in Evans, the same rule that's set forth in Justice Powell's opinion in Ricks, the same rule that's set forward in Justice Scalia's opinion for the Court in Lorance.
05-1074 +++$+++ 34244 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there is a slight difference in that you're focused on whether discrimination occurred within the 180-day period. And if I understand you correctly, discrimination would have occurred during the 180-day period if the employer knew of the policy that I described, because then he would be knowingly paying less.
05-1074 +++$+++ 34245 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Not if he had knowledge of --
05-1074 +++$+++ 34246 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought your answer to Justice Alito made that point.
05-1074 +++$+++ 34247 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, what I said to Justice Alito was, if the employer knew that it previously had a policy and if it knew and intended that its present pay would be done for gender-related reasons or racially-related reasons, it would constitute --
05-1074 +++$+++ 34248 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the question of whether just knowing that that's a source of the policy would be a gender-related reason.
05-1074 +++$+++ 34249 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the question is whether there was a present policy. That's the point the Solicitor General makes in its brief and the point we make in our brief.
05-1074 +++$+++ 34250 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, in my hypothetical there was a policy established 20 years ago, a 20 percent differential, never been changed. And the only question that would differ, in some cases the employer knows about it and in some others he doesn't.
05-1074 +++$+++ 34251 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And if the employer is presently applying, and knowingly and intentionally doing so, a 20 percent differential for male and female employees for no reason other than the gender of the employees, that's a present violation.
05-1074 +++$+++ 34252 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what his reason is, this is always the way we did it. That's his reason.
05-1074 +++$+++ 34253 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if what he's saying is, the way we have always done it is engage in gender discrimination, then doing it in the present time period would state a present claim.
05-1074 +++$+++ 34254 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But suppose he has no intent to discriminate as a present matter, but he also knows that his decision is necessarily based on a policy that was discriminatory some years ago. What result?
05-1074 +++$+++ 34255 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think if I understood the question, Justice Kennedy, I think no present claim, because the only thing you said that he knew is that they previously engaged in discriminatory actions.
05-1074 +++$+++ 34256 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ He knows it, but his present decision is necessarily based on some prior decision that was discriminatory.
05-1074 +++$+++ 34257 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That in and of itself is not sufficient. That's the point that, the seniority system in Lorance was necessarily based upon an earlier decision that the employer --
05-1074 +++$+++ 34258 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How is that -- how is that consistent with the statement in Bazemore that the employer has a duty to eradicate past discrimination?
05-1074 +++$+++ 34259 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the duty was to eradicate the alleged ongoing facially discriminatory pay practices that preceded the enactment of Title VII and were alleged to have been maintained for racially purposeful reasons after Title VII became effective to a public employer. There is no contemplation in that case that that duty would require an employer to investigate discrete employment decisions made in years gone by that weren't made the subject of a timely charge. What this Court has said repeatedly is when the charge filing period passes and no charge is brought, the employer is entitled to treat that past act as if it was a lawful act. That's what Justice Thomas' opinion in Morgan says. That's what, the opinion that Justice Stevens wrote for the Court in Evans.
05-1074 +++$+++ 34260 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that so even if they know it was in fact originally an unlawful act?
05-1074 +++$+++ 34261 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-1074 +++$+++ 34262 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You draw a line between present purposeful discrimination and present knowledge of past discrimination which is knowingly carried forward.
05-1074 +++$+++ 34263 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. Because the purpose of Section 706(e) is to give repose for those past decisions.
05-1074 +++$+++ 34264 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How do you describe dealing with a case like Manhart where they were complaining about a pension plan that had been instituted, oh, way longer than 180 days, years and years before?
05-1074 +++$+++ 34265 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That plan was facially discriminatory. It included on the face of the plan gender-based mortality tables. And as Justice Scalia's opinion for the Court in Lorance and the footnote that Justice Souter pointed out to, a facially discriminatory policy necessarily evidences present intent each time it is applied, and that is the important distinction. On the one hand you have cases that are both timely and as a matter of law show present intent because they are facially discriminatory. On the other end of the continuum you have cases that are only about past discrimination and do not involve any present actionable claim of intentional discrimination, and they are both untimely and legally insufficient. And then you have the cases in the middle which concern present allegations of discriminatory practices so obnoxious, as alleged in Bazemore, that the Court held that district court may have been clearly erroneous in its conclusion that there was no present intentional discrimination.
05-1074 +++$+++ 34266 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Nager. Mr. Gornstein?
05-1074 +++$+++ 34268 +++$+++ FALSE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Title VII gives employees like petitioner 180 days to challenge an individual pay decision such as a denial of a pay raise. Employees who allow the 180-day period to pass may not years later and even at the end of their careers challenge their current paychecks on the grounds that they are the result of a number of discrete individually discriminatory pay decisions that occurred long ago.
05-1074 +++$+++ 34269 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This would be a good Equal Pay Act case, wouldn't it?
05-1074 +++$+++ 34270 +++$+++ TRUE +++$+++ MR. NAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If it met the requirements of the Equal Pay Act, which is that it has to be the same knowledge, skills and responsibilities and effort for the job, then every time that you have a failure to deliver equal pay for equal work there is a violation of the act. But Title VII is not an equal pay for equal work statute, it is a nondiscrimination statute, and so that you have to show intentional discrimination in pay, not just the absence of equal pay.
05-1074 +++$+++ 34271 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why doesn't it become intentional, at least after 1995, when the supervisor recognizes that he's got an employee that is out of the appropriate range for her job, whether she does it badly or well?
05-1074 +++$+++ 34272 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, if an employee brought a claim within 180 days of the decision made then, that is to not, to not equalize the pay further --
05-1074 +++$+++ 34273 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why would she bring it then? They gave her a big raise that year.
05-1074 +++$+++ 34274 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, because I think what you're suggesting is they didn't give her a big enough raise, because there was still intentional discrimination from prior years that were not, that were unchallenged.
05-1074 +++$+++ 34275 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Didn't she have every reason to expect, well, they finally noticed it, so next year I'm going to get that same size raise, but that it doesn't happen the next year?
05-1074 +++$+++ 34276 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And if it doesn't happen that next year, then that employee has 180 days to challenge that pay decision on the ground that it's intentionally discriminatory. If she does not do that, she cannot come back 15 years later and say that a decision that was made 15 years ago and 14 years ago were based on my gender, and they --
05-1074 +++$+++ 34277 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ She is not talking about a decision made 15 or 14 in this case. She starts out even, and it builds up over time.
05-1074 +++$+++ 34278 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think in some, in some cases that, pay cases, it will build up over time. In some cases it will happen immediately. But in either case, what Title VII says is that you have 180 days to challenge a discrete pay decision. If you do not do that, you cannot come back later, years later, four years later, six years later, or here at the end of her career, and challenge every pay decision that's been made up until then on the grounds that intent, it was intentionally discriminatory and continues to have ongoing effects.
05-1074 +++$+++ 34279 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you could if the person making the decision was aware of the discriminatory policy.
05-1074 +++$+++ 34280 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Knowledge of prior unlawful acts is relevant evidence in deciding whether it's present day intentional discrimination. But just as in a case where there's a promotion and I'm aware that there was a prior discrimination in a promotion and that was not timely challenged, and the person comes to me today and says I want my promotion now. If I'm aware that she was denied that promotion for discriminatory reason but she did not timely challenge it, my decision not to give her that promotion is not automatically discriminatory.
05-1074 +++$+++ 34281 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you're changing the hypothetical. My hypothetical was simply a pay case.
05-1074 +++$+++ 34282 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand that, and I'm saying the same rule applies in a pay case that applies in a promotion case.
05-1074 +++$+++ 34283 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're saying, I think contrary to your colleague if I remember correctly, that even if the employer knew of the 20 percent differential policy established 20 years ago, it could still carry it into effect today.
05-1074 +++$+++ 34284 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What I'm saying with respect to a policy is if you have an ongoing policy that is still being applied in the limitations period, and that your current policy is to pay less to women than to men, then of course you can sue.
05-1074 +++$+++ 34285 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Let's say it's the same person who made the decision. You know, five years ago he said I'm giving a 6 percent raise to men, I'm giving a 3 percent raise to women, and then he decides that's illegal, and so from now on everybody is going to get a 4 percent raise every year if you meet certain standards. Is that ongoing discrimination or is that a neutral thing, that he doesn't have to take into account the past discrimination?
05-1074 +++$+++ 34286 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's a neutral discrete act that was made at the time. It was not challenged.
05-1074 +++$+++ 34287 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Even though he knows that it carries forward the illegal discrimination?
05-1074 +++$+++ 34288 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Even when the employer -- you can have an inference from knowledge of past illegal conduct that your present intent is to carry forward that differential based on the person's sex, but it is not an automatic inference. You can also, the employer could say look, that was a decision that occurred a while ago. A lot of people did this. There were decisions made that affected a lot of other people --
05-1074 +++$+++ 34289 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you're talking about --
05-1074 +++$+++ 34290 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and I didn't correct those either, and that's a neutral policy.
05-1074 +++$+++ 34291 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's a defense. And you're talking about, yes, you might draw that inference but that inference would be wrong because I have a defense. The defense is poor performance explains it, not sex discrimination.
05-1074 +++$+++ 34292 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But under Title VII, poor performance isn't a defense. It is negating intentional discrimination. It's the employer's employee's burden --
05-1074 +++$+++ 34293 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought at least in this area, the defenses were the same as under the Equal Pay Act.
05-1074 +++$+++ 34294 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there are -- there is an additional layer of defense, but still the employee has to prove an additional element in a Title VII claim, not just the absence of equal pay for equal work, it has to --
05-1074 +++$+++ 34295 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Gornstein, why should we listen to the Solicitor General rather than the EEOC? I mean, they have taken a different position from the one that you're urging upon us.
05-1074 +++$+++ 34296 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The EEOC has taken a different position but that decision that the EEOC has taken has been based on its reading of this Court's decision in Bazemore, and this Court does not give deference to the EEOC under Skidmore or under any other standard.
05-1074 +++$+++ 34297 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So why don't we at least hear from the EEOC? That has happened in other cases where the Department of Justice and the EEOC take different positions, at least the EEOC filed a brief even though it wasn't the Government's brief.
05-1074 +++$+++ 34298 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That has occasionally happened in the past. It has not happened as a regular matter, or to my knowledge it does not ordinarily occur. The EEOC --
05-1074 +++$+++ 34299 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If the EEOC is upheld in the Court of Appeals and review is sought here, will the Government confess error?
05-1074 +++$+++ 34300 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Justice Souter?
05-1074 +++$+++ 34301 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If the EEOC decision is upheld by one of the Courts of Appeals and there is an attempt to bring the case here on cert, will the Government confess error?
05-1074 +++$+++ 34302 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the Court rules in the Government's favor in this case, then that case would have to be vacated and remanded for reconsideration in light of this Court's decision today. The EEOC's --
05-1074 +++$+++ 34303 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I'm asking a simpler question. Let's assume that somehow we fudge it. If -- if there is a clear cut case in which the EEOC takes a position different from the one the Government is now espousing, and a Court of Appeals upholds it, and cert is sought here, will the Solicitor General say please remand, or simply confess judgment?
05-1074 +++$+++ 34304 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, I would like to answer that question today but of course if the Court doesn't resolve the question today that's been decided today, but issues a new decision, anything we would have to do would have to look at that new decision and make a judgment about what the law is at that time. And so my -- my point is --
05-1074 +++$+++ 34305 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think I got your point.
05-1074 +++$+++ 34306 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Touche.
05-1074 +++$+++ 34307 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To go on, there are three decisions of this Court that control the result here, Evans, Ricks and Lorance, each of which says that the employee cannot circumvent the limitations period by challenging conduct within the limitations period on the grounds that it is the result of a prior act of intentional discrimination that was not timely challenged. A second reason to reject petitioner's rule is that petitioner's rule, as petitioner admits, creates a special rule for pay cases when there is nothing in the language of Title VII that would justify a special rule. Title VII has the same mandate of nondiscrimination for pay as for any other practice. It has the same 180-day period for pay claims as any other claim. And the third reason to reject petitioner's view is that it would undo the statute of limitations in pay cases, because the result would be, what you have here is that an employee could wait until the end of their career, or at least a very substantial number of years, and then challenge current pay on the basis of past acts that took place a long time ago. And Justice Breyer, you talked about it being limited to just back pay during the two-year period. The courts that have looked at this have not decided whether it's the 180-day period or the two-year period if you buy petitioner's theory, I don't think he has either. But the important additional point of order is you're still hinging liability on past acts long ago and you're adding the possibility of compensatory relief and punitive damages, so it's not the limited damage award that you're contemplating necessarily.
05-1074 +++$+++ 34308 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What would you do on the other side of this? It if you win on this, then don't you have to have a fairly relaxed standard of allowing the woman, tolling or something, when she just gets some paychecks that would take her a while to figure out that these are really reflecting some old discrimination and she doesn't know. It's different in that respect from the promotion itself.
05-1074 +++$+++ 34309 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well in some -- if she's denied a pay raise and she's aware that other people are getting substantial pay raises -- I don't think it's that much different than somebody else getting the promotion and me not getting that promotion.
05-1074 +++$+++ 34310 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, she knows this. She knows that, all these boxes on her paychecks and she's not quite sure what they mean. All right, your answer is not much different.
05-1074 +++$+++ 34311 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, to the extent that you want to address equitable tolling. That's the question, should there be equitable tolling until such time as she's aware of the disparity. But what petitioner's theory does is says even after the employee is aware of the disparity she can wait 15 more years and then sue.
05-1074 +++$+++ 34312 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Russell, you have 3 minutes remaining.
05-1074 +++$+++ 34314 +++$+++ FALSE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the fundamental disagreement in this case comes down to what is the unlawful employment practice Congress was referring to when it prohibited discrimination with respect to compensation. If it is under our view, in our view, the payment of an intentionally disparate wage, then there's no question that under Bazemore the violation occurred during the limitations period. The fact that the intent was formed outside the limitations period doesn't make the present payment of a disparate wage because of sex any less intentionally discriminatory. But the difference in the conceptions, which frankly isn't answered by the plain text of this statute itself, should be resolved in light of the practical consequences of the differences in the rules. The Solicitor General acknowledges that a paycheck accrual rule applies at least in a case of a policy of discrimination, but that's a very difficult rule to administer for the EEOC, which must make a determination of timeliness before it even has authority to investigate a claim. It shouldn't be left to the EEOC to figure out whether there's an unwritten practice or an unwritten policy which would require an extensive investigation not only of the petitioner's pay but of everybody else's. You recall that in Bazemore they had to conduct a multiple regression analysis to establish a pattern of discrimination there. Our rule is simple to administer and has been administered for decades in the lower courts and it's the rule that the EEOC itself has chosen in construing this ambiguous aspect of the statute.
05-1074 +++$+++ 34315 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you agree that their action is just based on Bazemore or their reading of Bazemore?
05-1074 +++$+++ 34316 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, that's incorrect. I mean, the EEOC has taken this position that you can challenge present pay disparities even before the Court's decision in Bazemore and it continued to adhere to it afterward. The fact that they cited to Bazemore shouldn't disentitle them to the kind of deference that they're ordinarily entitled to when they construe a statute that's given to them, and this is precisely the kind of question Congress would have entitled them to exercise their expertise on. Finally, I would like to raise the point that under respondent's rule the Extension Service would have been permitted to pay blacks less than white in perpetuity in Bazemore so long as it did so because of cost and not because it wanted to continue to discriminate on the basis of race. And similarly, under the Solicitor General's view an employer who had intentionally discriminated through discrete decisions against some of its employees prior to the act would be allowed to continue to do so after the act because the decision would have been the potentially unlawful act in that case and that wouldn't have been actionable. We respectfully suggest that Congress intended nothing than a complete --
05-1074 +++$+++ 34317 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How could cost justify a dual pay scale?
05-1074 +++$+++ 34318 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It could -- the Extension Service --
05-1074 +++$+++ 34319 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You'd have to have another factor in the decision, which was that you didn't want to change pay. But cost alone couldn't justify that.
05-1074 +++$+++ 34320 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be a nondiscriminatory reason. They would -- they would say that, the reason we didn't immediately equalize salaries is because it cost too much, it would have required -- we'd be required to cut down on our programs. And under respondent's view that is not intentionally pay-maintaining discrimination.
05-1074 +++$+++ 34321 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, you'd have to say, we don't want to spend any more and we also don't want to equalize pay. You have to say the second too.
05-1074 +++$+++ 34322 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They would say, we don't want to equalize pay because it costs too much, and that's not a discriminatory reason for maintaining the prior disparity. But ultimately --
05-1074 +++$+++ 34323 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If you say you're not going to equalize pay, you're saying you're going to discriminate on the basis of race.
05-1074 +++$+++ 34324 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Which is what happened here. Goodyear continued to discriminate on the basis of sex, knowing as a matter of agency law that it had done, it had set her pay for discriminatory reasons in the past.
05-1074 +++$+++ 34325 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You can equalize pay by lowering others. You don't -- raising the discriminated-against class is not the only way to equalize pay. So I don't see how cost is a justification for continuing the disparity.
05-1074 +++$+++ 34326 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Not under the Equal Pay Act. You can only equalize up, not down.
05-1074 +++$+++ 34327 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true.
05-1074 +++$+++ 34328 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Under Title VII you can equalize either way, right?
05-1074 +++$+++ 34329 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would, but if they chose not to equalize at all because they don't want to spend the money the money that would be a nondiscriminatory reason.
05-1074 +++$+++ 34330 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You'd certainly have a very happy work force if you equalized one way.
05-1074 +++$+++ 34331 +++$+++ TRUE +++$+++ MR. RUSSELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
05-1074 +++$+++ 34332 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
05-1120 +++$+++ 34336 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument first today in 05-1120, Massachusetts versus Environmental Protection Agency. Mr. Milkey.
05-1120 +++$+++ 34338 +++$+++ FALSE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: If I may, I'd like to frame the merits very quickly and then turn immediately to standing. Although the case before you arises in an important policy area, it turns on ordinary principles of statutory interpretation and administrative law. EPA made a decision based on two grounds, both of which constitute plain errors of law reviewable under any standard. EPA's principle grounds was that it lacked authority over the emissions of the four substances at issue, even if they, in fact, endanger public health and welfare. That legal conclusion fails as a matter of law. As a fallback position, EPA declined to consider if these substances are endangering public health and welfare, claiming its policy approach made more sense than the regulatory scheme encompassed in section 1202 of the Clean Air Act. Although EPA possesses a good deal of discretion in applying the statutory endangerment test, it cannot rest its ruling on impermissible grounds as it did here. We are not asking the Court to pass judgment on the science of climate change or to order EPA to set emission standards. We simply want EPA to visit the rulemaking petition based upon permissible considerations. And now, Your Honor, I'd like to turn to standing. Petitioner showed a wide variety of injury in fact, all of which are the kinds of harms the statute was aimed at preventing. For example, our uncontested affidavits establish that as a matter of physics, the more greenhouse gases accumulate in the air, the more temperatures are going to rise, ocean waters expand, and the seas rise. And of course as the seas expand, they rise everywhere around the world. Some areas such as Massachusetts will be hit particularly hard because we're also subject to a land subsidence, but that --
05-1120 +++$+++ 34339 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought that the standing requires imminent harm. If you haven't been harmed already, you have to show the harm is imminent. Is this harm imminent?
05-1120 +++$+++ 34340 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is, Your Honor. We have shown that the sea levels are already occurring from the current amounts of greenhouse gases in the air, and that means it is only going to get worse as the --
05-1120 +++$+++ 34341 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ When? I mean, when is the predicted cataclysm?
05-1120 +++$+++ 34342 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it's not so much a cataclysm as ongoing harm. The harm does not suddenly spring up in the year 2100, it plays out continuously over time. And even to the extent you focus on harms that occur in the future, there's nothing conjectural about that. Once these gases are emitted into the area, and they stay a long time, the laws of physics take over.
05-1120 +++$+++ 34343 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, there's a lot of conjecture about whether -- I gather that there's something of a consensus on warming, but not a consensus on how much of that is attributable to human activity. And I gather that -- what is it? Something like seven percent of the total carbon dioxide emissions are attributable to automobiles in the United States?
05-1120 +++$+++ 34344 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's actually about 6 percent, Your Honor.
05-1120 +++$+++ 34345 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ 6 percent? Thank you.
05-1120 +++$+++ 34346 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it's important to point out as well, though, that in the ruling we challenge, EPA has disavowed authority over all U.S. sources of emissions, which constitute about 20 percent of global --
05-1120 +++$+++ 34347 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but that doesn't go to the harm that you're claiming. I mean, we're talking about the, you know, the standing issue right now. And if you've been harmed, you've claimed harm because of carbon dioxide emissions, right?
05-1120 +++$+++ 34348 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Agreed, Your Honor. But my point was that they disclaimed authority over all sources of carbon --
05-1120 +++$+++ 34349 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I understand, but that has nothing to do with whether you have standing. That has to do with the merits of the case. But on the standing point, only new cars would be affected, right? So even the reduction of the 6 percent would take a few years, wouldn't it?
05-1120 +++$+++ 34350 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would take a few years, Your Honor, but it is a basic premise of the Clean Air Act that vehicle fleets regularly turn over --
05-1120 +++$+++ 34351 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I understand. But it goes to how imminent the harm is and how remediable the imminent harm is. If, in fact, the 6 percent will only be reduced to maybe five and a half in the next few years, your --
05-1120 +++$+++ 34352 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we have shown in the record that a 40 percent reduction in carbon dioxide from cars is currently feasible. And since those emissions account for --
05-1120 +++$+++ 34353 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not in the first year.
05-1120 +++$+++ 34354 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, no. We agree, Your Honor.
05-1120 +++$+++ 34355 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean ultimately, when all the cars currently on the roads are off and the new cars with, you know, whatever measures you think will reduce the carbon dioxide are on the road, then 40 percent would be the figure.
05-1120 +++$+++ 34356 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-1120 +++$+++ 34357 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But whatever position holds for motor vehicles would similarly hold for power plants, and has there been any application to EPA with respect to carbon dioxide in power plants?
05-1120 +++$+++ 34358 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There has, Your Honor. In fact, EPA has turned down a rulemaking petition to regulate them under the new source performance standard section of the Clean Air Act, and that is currently on appeal in the D.C. Circuit, but it is currently stayed pending the outcome of this case, and it just --
05-1120 +++$+++ 34359 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you get the benefit of that broader allegation in establishing your standard? In other words, if you've challenged EPA's refusal to apply a particular level of greenhouse regulation to a particular model of car, can you say, well, they're following the same approach to a coal powered -- coal fueled power plant, and so we get to establish a broader injury? Or, aren't you limited to the specific legal challenge you're raising here?
05-1120 +++$+++ 34360 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think it's actually more direct in the sense that in the decision we challenge here, they said greenhouse gases are not air pollutants under any regulatory provision of the act. So at least on --
05-1120 +++$+++ 34361 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Don't you have to show injury from their decision here? The fact that other people, or you presumably as well might be injured by their decisions that you are not challenging here, that doesn't help your standing here, does it?
05-1120 +++$+++ 34362 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe it does, Your Honor, because we cannot win that other case unless we win this case here in terms of the authority question. And in any event, it is important to point out that because of the scale of the problem, relatively small percentage deductions in global emissions can lead to real world results.
05-1120 +++$+++ 34363 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But at the outset, you made this, some of this perhaps reassuring statement that we need not decide about global warming in this case. But don't we have to do that in order to decide the standing argument, because there's no injury if there's not global warming? Or, can you show standing simply because there is a likelihood that the perceived would show that there's an injury?
05-1120 +++$+++ 34364 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, especially in this case where none of our affidavits were challenged, I don't think the Court needs to go there ultimately on the merits because we showed through our uncontested affidavits that these harms will occur. There was no evidence put in to the contrary, and I would add that the reports on which EPA itself relies conclude that climate change is occurring in --
05-1120 +++$+++ 34365 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Those affidavits talked about the fact that if the government starts to regulate, the technology is going to change, if the technology changes, other governments will adopt it, and all that, and that strikes me as sort of spitting out conjecture on conjecture, the sort that we disapproved of.
05-1120 +++$+++ 34366 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, although we believe we have shown other governments will follow suit, we are not in any sense relying on that. We can easily show our standing without relying on that. And that's because --
05-1120 +++$+++ 34367 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Same argument if the automobile emissions were 1 percent contributors?
05-1120 +++$+++ 34368 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be the same argument. And I would add that EPA in other contexts has determined on several occasions that a 1 percent contribution is significant under the Clean Air Act.
05-1120 +++$+++ 34369 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How is that consistent with our taxpayer standing cases where the argument is that a taxpayer doesn't have standing to challenge an illegal expenditure as a general matter simply because his contribution, the benefit that he's claiming is so small and so widely dispersed?
05-1120 +++$+++ 34370 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it is different because here there is particularized injury that we have shown. The injury doesn't get any more particular than states losing 200 miles of coastline, both sovereign territory and property we actually own, to rising seas.
05-1120 +++$+++ 34371 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If you look ahead, I don't know how far imminence allows you to look ahead, but let's say we're looking at 5 years or 10 years, what particularized harm does the record show that Massachusetts will, or faces an imminent threat of suffering, that can be traceable to the reductions that you want to produce through these regulations?
05-1120 +++$+++ 34372 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, if I can deal with the traceability part of that question first, traceability is easy to show here because the extent of our harm is caused by the overall amount of the gases in the air. And being focused on the 20 percent of all U.S. sources, or the 6 percent of the cars, that's still a sizeable portion of the problem, so we know that 6 or 20 percent is there. In terms of the particular harms, similarly we have shown --
05-1120 +++$+++ 34373 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ 6 percent is the total emissions, the total contribution from motor vehicles in the United States, right?
05-1120 +++$+++ 34374 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To the global carbon dioxide emission.
05-1120 +++$+++ 34375 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ To the global. And so, the reduction that you could achieve under the best of circumstances with these regulations would be a small portion of that, would it not?
05-1120 +++$+++ 34376 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be, we have shown in the record it would be about a two-and-a-half percent over the time it takes to turn the fleet over. But it's important that given the nature of the harms, even small reductions can be significant. For example, if we're able to save only a small fraction of the hundreds of millions of dollars that Massachusetts parks agencies are projected to lose, that reduction is itself significant.
05-1120 +++$+++ 34377 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That assumes everything else is going to remain constant, though, right? It assumes there isn't going to be a greater contribution of greenhouse gases from economic development in China and other places that's going to displace whatever marginal benefit you get here.
05-1120 +++$+++ 34378 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. But reducing domestic emissions will reduce our harm, the harm we would otherwise face regardless of what --
05-1120 +++$+++ 34379 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not if your harm is the alleged loss of coastline. Not necessarily. It depends upon what happens across the globe with respect to greenhouse emissions.
05-1120 +++$+++ 34380 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we would still lose coastline but we would not lose as much because these harms are cumulative, and while reducing U.S. emissions will not eliminate all the harm we face, it can reduce the harm that these emissions are causing. So it will necessarily reduce our harm and satisfy redressibility.
05-1120 +++$+++ 34381 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, do we know that that's a straight line ratio, that a reduction of two-and-a-half percent of carbon dioxide -- well, two and a half overall would save two-and-a-half percent of your coastline? Is that how it works? I'm not a scientist, but I'd be surprised if it was so rigid.
05-1120 +++$+++ 34382 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I don't believe it's established it's necessarily a straight line. But I want to emphasize that small vertical rises cause a large loss of horizontal land. For example, where the slope is less than 2 percent, which is true of much of the Massachusetts coastline, every foot rise will create a loss of more than 50 feet of horizontal land. And for example, in the State of New York, the Oppenheimer affidavit projects that New York could well lose thousands of acres of its sovereign territory by the year 2020. So the harm is already occurring. It is ongoing and it will happen well into the future.
05-1120 +++$+++ 34383 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What's your strongest case from this Court to support your standing allegation?
05-1120 +++$+++ 34384 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, what I would say to that is our standing here is so much more direct and particularized than, for example, the harm this Court found sufficient in Laidlaw, which was --
05-1120 +++$+++ 34385 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Laidlaw was a specific citizen suit provision, wasn't it?
05-1120 +++$+++ 34386 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was, Your Honor.
05-1120 +++$+++ 34387 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So doesn't that make it somewhat analytically distinct from this case?
05-1120 +++$+++ 34388 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe so, Your Honor. Here I think the fact that the States are showing harm not only to them in a property sense, but in their sovereign capacity --
05-1120 +++$+++ 34389 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's your authority for that? I have the same question as the Chief Justice. I was looking at your brief for the strongest case. Suppose there were a big landowner that owned lots of coastline. Would he have the same standing that you do or do you have some special standing as a State, and if so what is the case which would demonstrate that?
05-1120 +++$+++ 34390 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, first of all, we agree that a large landowner would himself or herself have --
05-1120 +++$+++ 34391 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What of a small landowner?
05-1120 +++$+++ 34392 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, no. I'm asking whether you have some special standing --
05-1120 +++$+++ 34393 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes --
05-1120 +++$+++ 34394 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- as a State and, if so, what's the authority for that?
05-1120 +++$+++ 34395 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, first of all, I do think we have special standing. For example, here it's uncontested that greenhouse gases are going to make ozone problems worse, which makes it harder for us to comply with our existing Clean Air Act responsibilities. And the -- in the West Virginia case, which is a D.C. Circuit case, the Court found that that itself provided an independent source of standing. In terms of Supreme Court cases, the -- it's been -- for 200 years, this Court has recognized loss of state sovereign property as a traditional --
05-1120 +++$+++ 34396 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I don't know. 1907 was Georgia versus Tennessee Copper, and that was pre-Massachusetts versus Mellon. That seems to me your best case. What about a small landowner? I asked the question about a big landowner. Suppose you have a small landowner and he owned a lot?
05-1120 +++$+++ 34397 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think if someone is losing property because of this problem, then that person would have standing, but we're nowhere near a de minimis threshold here. We have shown we own property, 200 miles of coastline which we're losing, and we think the standing is straightforward.
05-1120 +++$+++ 34398 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, I'm not sure -- I think our opinions have even said it, but certainly commentators have often said it, that really the far margin of our standing cases has been, you know, the famous scrap case, in which the allegation was that the added pollution from municipal incineration of municipal waste which would -- which couldn't be transported by rail for burial because the ICC rates were too high, that added pollution interfered with the students' -- they were Georgetown Law students -- their hiking in the George Washington Forest along the Blue Ridge. That seems to me a much more immediate kind of damage; yet that's been referred to as really the far margin of our standing cases. You're talking not about their being affected by ambient air but being affected by a stratospheric effect which then has another consequence that you allege.
05-1120 +++$+++ 34399 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, once these are emitted the laws of physics take over, so our harm is imminent in the sense that lighting a fuse on a bomb is imminent harm. It may take --
05-1120 +++$+++ 34400 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Milkey, does it make a difference that you're not representing a group of law students, but a number of States who are claiming that they are disarmed from regulating and that the regulatory responsibility has been given to the Federal Government and the Federal Government isn't exercising it? I thought you had a discrete claim based on the sovereignty of States and their inability to regulate dependent on the law Congress passed that gives that authority to the EPA. I thought that was --
05-1120 +++$+++ 34401 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, you are correct that we are saying that provides us also an independent source of our standing.
05-1120 +++$+++ 34402 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't understand that. You have standing whenever a Federal law preempts State action? You can complain about the implementation of that law because it has preempted your State action? Is that the basis of standing you're alleging?
05-1120 +++$+++ 34403 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In short, Your Honor --
05-1120 +++$+++ 34404 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you know any case that has ever held that?
05-1120 +++$+++ 34405 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I would cite you to the amicus brief of the State of Arizona et al., which cites several cases, albeit not in this Court, that stand for that principle. Your Honor, if I may turn to the merits quickly, section 202(a)(1) provides EPA jurisdiction over any air pollutant that motor vehicles emit. It's not restricted to certain types of air pollutants or to air pollutants that cause certain kinds of harm. And not only does the act define air pollutant with comprehensive breadth, but we know these four substances are air pollutants from other evidence. For example, Congress itself expressly referred to carbon dioxide as an air pollutant in section 103(g). And since by definition all air pollutants are air pollution agents, we know that Congress understood carbon dioxide to be an agent of air pollution. And if air pollution --
05-1120 +++$+++ 34406 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Moving from your authority argument to the exercise of authority, the clause 202(a)(1) requires EPA to prescribe standards which in their judgment cause or contribute to air pollution reasonably anticipated to endanger public health. And they say they haven't made that judgment yet, so they're not in violation of that statutory command.
05-1120 +++$+++ 34407 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Your Honor; but they have said that they have put off making a judgment based on impermissible grounds. While EPA's explanation is difficult even to follow, one overarching point shines through and that is the agency does not agree with taking a regulatory approach regardless of how it might otherwise come out.
05-1120 +++$+++ 34408 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let's say the first day this law is passed, there are a lot of air pollutants that come out of motor vehicles. I mean, is EPA immediately in violation of this statute if they don't issue emissions regulations for every one those air pollutants on day one?
05-1120 +++$+++ 34409 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. EPA has a lot of room to move based both on the endangerment standard itself and on background principles of administrative law.
05-1120 +++$+++ 34410 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And presumably the principle that they want to deal with what they regard as the more serious threats sooner. They want to deal with lead first and then they want to deal with other stuff. I mean, what is the -- when did they -- I guess -- move into an abuse of discretion in not exercising a judgment with respect to a particular pollutant?
05-1120 +++$+++ 34411 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The answer to that, Your Honor, is that when they do not rely on any of those grounds, they do not rely on lack of information, they did not rely on background principles of administrative law. What though said here is -- and -- that they did not, in fact, contest the seriousness of the problem. But note, in two back to back sentences on page A-82 of the third petition they say: We must address the, issue but we disagree with the regulatory approach. The very section in which they explained why they weren't going to regulate is entitled "Different Policy Approach." Rejecting mandatory motor vehicle regulation as a bad idea is simply not a policy choice that Congress left to EPA.
05-1120 +++$+++ 34412 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if you are right and then it went back and the EPA then said, well, an obvious reason also is constraint on our own resources, we have the authority to say what comes first, Congress -- we couldn't possibly do everything that Congress has authorized us to do; so it's our decision, even though we have the authority to do this, we think that we should spend our resources on other things. Suppose they said that? You said they didn't say it this time around, but how far will you get if all that's going to happen is it goes back and then EPA says our resources are constrained and we're not going to spend the money?
05-1120 +++$+++ 34413 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, while background administrative law principles provide EPA at least some room to move, we think it's important that EPA say that. If they -- it's a very different opinion if they say, we are not going to regular here because we just don't want to spend the resources on this problem and we want to look elsewhere. If they want to say that, they can say that and then, if at all, there'd be a narrow arbitrary and capricious challenge on that. But the point is here they relied on the impermissible consideration that they simply disagreed with the policy behind the statute.
05-1120 +++$+++ 34414 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's not all they said. I'm looking at A-85 and they said establishing emissions now would require EPA to make scientific and technical judgments without the benefit of studies that are being developed to reduce the uncertainty in the area. That's different than saying they disagree with the regulatory approach.
05-1120 +++$+++ 34415 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is and it isn't, Your Honor, because that statement will alleges be true. There will always be scientific uncertainty. Agencies will always have an understandable interest in seeing more information. They never --
05-1120 +++$+++ 34416 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There's a difference between the scientific status of the harm from lead emissions from vehicles that -- when you have lead in the gasoline, to the status, the status of scientific knowledge with respect to the impact on global warming today? Those are two very different levels of uncertainty.
05-1120 +++$+++ 34417 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, when EPA regulated lead back in the ethyl days, as the Court court itself took note, there were huge amounts of uncertainty at that time. And EPA has a lot of discretion in evaluating that, that uncertainty. And if the EPA determined that the level of uncertainty was such that it was not reasonable to anticipate endangerment, that is perfectly appropriate. It would also be appropriate if the agency determined that there was so much uncertainty that they couldn't even form a judgment on that. That would be applying the endangerment statute at the same time it put off. But the point is they did not say any of that. They instead relied on impermissible grounds.
05-1120 +++$+++ 34418 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Milkey, I had -- my problem is precisely on the impermissible grounds. To be sure, carbon dioxide is a pollutant, and it can be an air pollutant. If we fill this room with carbon dioxide, it could be an air pollutant that endangers health. But I always thought an air pollutant was something different from a stratospheric pollutant, and your claim here is not that the pollution of what we normally call "air" is endangering health. That isn't, that isn't -- your assertion is that after the pollutant leaves the air and goes up into the stratosphere it is contributing to global warming.
05-1120 +++$+++ 34419 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Respectfully, Your Honor, it is not the stratosphere. It's the troposphere.
05-1120 +++$+++ 34420 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Troposphere, whatever. I told you before I'm not a scientist. (Laughter.)
05-1120 +++$+++ 34421 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's why I don't want to have to deal with global warming, to tell you the truth.
05-1120 +++$+++ 34422 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under the express words of the statute -- and this is 302(g) -- for something to be an air pollutant it has to be emitted into the ambient air or otherwise entered there.
05-1120 +++$+++ 34423 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, and I agree with that. It is when it comes out an air pollutant. But is it an air pollutant that endangers health? I think it has to endanger health by reason of polluting the air, and this does not endanger health by reason of polluting the air at all.
05-1120 +++$+++ 34424 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, respectfully, I disagree, and there is nothing in the act that actually requires the harm to occur in the ambient air. In fact, some of the harm here does occur there.
05-1120 +++$+++ 34425 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it talks about air pollution all the time. That's what the, that's what the thing is about, air pollution. It's not about global warming and it's not about the troposphere.
05-1120 +++$+++ 34426 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we are not saying, first of all that global warming is air pollution, any more than we're saying that asthma is air pollution. They're both effects. I would point you to the example of acid rain, where the pollutant there, sulfur dioxide, the problem is it causes its harm after it leaves the air, after it gets washed out. Air pollutants do not need to cause harm in the ambient air. Your Honor, I would add that our interpretation satisfies common sense because, while EPA has plenary authority over substances that motor vehicles emit, those substances are regulated only if EPA determines that they cause endangerment. By defining the term "air pollutant" comprehensively, Congress has not prejudged what may cause endangerment, but it has allowed other pollutants to be regulated as their harms become appreciated. It is EPA's interpretation that fails the common sense test. They have suggested that the term "air pollutant agent" creates an independent test so important that it may prevent some harmful compounds from being regulated without providing any hint of what the term means or how it applies in this case. And they cannot explain any number of anomalies such as the fact that methane is already a regulated air pollutant, yet they claim they can't look at its climate effects. Your Honor, if there are no more questions I'd like to reserve my time.
05-1120 +++$+++ 34427 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Milkey. Mr. Garre.
05-1120 +++$+++ 34429 +++$+++ FALSE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you. Mr. Chief Justice, and may it please the Court. After carefully considering the issue the nation's expert agency in environmental matters concluded that Congress has not authorized it to embark on the regulation of greenhouse gas emissions to address global climate change. And that even if it has, now is not the time to exercise such authority, in light of the substantial scientific uncertainty surrounding global climate change and the ongoing studies designed to address those uncertainties. Plaintiffs have provide no reason to override that quintessential administrative judgment.
05-1120 +++$+++ 34430 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Garre, doesn't the EPA's decision on the first, "we don't have any authority," doesn't that infect its subsequent decision, "well, even if we did, we wouldn't exercise it." But they've already decided they don't have authority.
05-1120 +++$+++ 34431 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I don't think that it does. In the sense, I think EPA made clear in its decisional document that it considered as an alternative matter, that if it, even assuming it did have the authority, that it wouldn't be appropriate to exercise it at this time. And importantly, too, I mean, just to be clear on this, EPA has never made an endangerment finding with respect to global climate change. That was true in 1998 and 1999 when the agency had a different position on authority to regulate. Even then the agency's position was clear. Even assuming we have the authority, now is not the time to exercise it. So I don't think --
05-1120 +++$+++ 34432 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I take it that on that question, is there authority, the EPA has come out one way, but at least it is debatable because as you just said, the predecessors of the current people said we do have the authority.
05-1120 +++$+++ 34433 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, to that degree, Your Honor, this Court has made clear, for example, in the Brand X case that even where agencies change positions, where they've provided reasonable grounds for a new interpretation, that interpretation is entitled to Chevron deference. We think that that is true in this case.
05-1120 +++$+++ 34434 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On this particular issue, the opinion as I read it, of the EPA, consists of 32 pages. Twenty of those pages, 22 in fact, deal with whether they have statutory authority. And of the 10 that deal with the issue we're talking about now, five of them give as their reason that they think that the President has a different policy. Of the remaining five, two more consider international aspects of the problem and how you have to get other countries to cooperate; and then the conclusion of that part says in light of these considerations, we decide not to exercise our power. Now their claim with respect to that, is that at least three of the four considerations are not proper things for the agency to take into account: namely whether the President wants to do something different, whether we're running foreign policy properly, whether cooperation with other countries are relevant to this particular issue. So what they've asked us to do is send it back so they can get the right reasons. Now -- if they want not to do it. What's your response to that?
05-1120 +++$+++ 34435 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, I don't think that it depends on how many pages that the agency devoted to the --
05-1120 +++$+++ 34436 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The reason it depended on that is whether or not these other, improper considerations might have influenced the ultimate decision not to go ahead.
05-1120 +++$+++ 34437 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it depends on the reasons that the agency gave. And one of the reasons that the agency gave was the substantial scientific uncertainty surrounding the issue of global climate change. Petitioners acknowledge that that was an appropriate consideration for the agency. So even if you think the other considerations were inappropriate, and we certainly do not, but even if you think they are, the agency gave an appropriate reason. And that reasons --
05-1120 +++$+++ 34438 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When I write an opinion -- when I write an opinion, sometimes I write the words: "We decide this matter in light of the following three factors taken together." And I guess a lawyer who said, "one of those factors alone the Court has held justified the result all by itself" -- in saying the Court has held that, I guess that wouldn't be so. That would be a bad lawyer, wouldn't it?
05-1120 +++$+++ 34439 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But Your Honor --
05-1120 +++$+++ 34440 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If they write that all of these considerations justify our result, again, one of them by themselves, it sounds, they think would not have been sufficient.
05-1120 +++$+++ 34441 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I don't think that that is a fair reading of the EPA decisional document, Your Honor. Certainly, the agency didn't go out of its way to say, "and reading these considerations together and not any of them individually." And with respect to the scientific uncertainty, Your Honor, you also have to take into account that the EPA had before it and pointed to the report of the National Research Council on global climate change.
05-1120 +++$+++ 34442 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I find it interesting that the scientists whose worked on that report said there were a good many omissions that would have indicated that there wasn't nearly the uncertainty that the agency described.
05-1120 +++$+++ 34443 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if you are referring to the amicus brief, Your Honor, there are -- assuming there are amicus briefs on the other side. The Ballunas amicus brief -- I think it is fair for the Court to look at, to look at the document that the agency had before it. That -- that document produced by the National Research -- Research Council, that's the research arm of the National Academy of Sciences. And it's one of the gold standards of research.
05-1120 +++$+++ 34444 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in their selective quotations, they left out parts that indicated there was far less uncertainty than the agency purported to find.
05-1120 +++$+++ 34445 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think one thing that we ought to be able to agree on is there is that there is uncertainty surrounding the phenomenon of global climate change. I think the debate is on which areas are more uncertain than the others. But certainly I think the agency was entitled to conclude, particularly if you take into account the deference this Court should give to that kind of determination, that the scientific uncertainty surrounding the issue of global climate change, surrounding issues of the extent of natural variability in climate, surrounding the issues of impact of climate feedbacks like ocean circulation, and low cloud cover, are permissible considerations for the agency to take into -- --
05-1120 +++$+++ 34446 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there uncertainty on the basic proposition that these greenhouse gases contribute to global warming.
05-1120 +++$+++ 34447 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the report says that it is likely that there is a -- a connection, but that it cannot unequivocally be established. I think that -- if I could use that to go back to the standing question, Your Honor, which is the fundamental question of whether they've showed not just a connection between greenhouse gas emissions in toto and the phenomenon of global climate change, but the particular class of greenhouse gas emissions at issue in this case. Six percent of global greenhouse gas emissions, at most. That assumes you put all U.S. vehicles off the road or that they are all zero emission cars. So you're talking about emissions --
05-1120 +++$+++ 34448 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- it is not a mathematical question, right? I mean, you would -- it's that you would -- what is the number? What's enough? 10 percent? 15 percent? Presumably, there's more to it than the percentage of emissions attributable to be this particular --
05-1120 +++$+++ 34449 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's true, Your Honor. But what petitioners here to show, they bear the burden in order to establish standing under this case, is that regulation of the class of greenhouse gases at issue in this case will make a difference to them.
05-1120 +++$+++ 34450 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose it is not greenhouse gas. Suppose it was Agent Orange. Suppose there a car is coming down the street and it sprays out Agent Orange. And I come into the Court and I say, you know, I think that Agent Orange is going to kill me with cancer. And the reply is, well, we have some scientists here who say your chance of dying of cancer from Agent Orange is only 1 in 30. Maybe 1 in 50. Maybe 1 in a thousand. Maybe 1 in 10,000. And therefore, you have no standing to require the EPA to regulate this pollutant, Agent Orange, which is in a green cloud all over the city. Now, would you say that the person who's made that claim has no standing?
05-1120 +++$+++ 34451 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think that that is a fundamentally different case, for the simple reason that global climate change is a global phenomenon. I mean one --
05-1120 +++$+++ 34452 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I was only addressing, using that to -- to address your problem that the chances are too small that, in fact, any one individual will be affected by the 7 percent or 6 percent of the material that comes out of the truck -- the CO2.
05-1120 +++$+++ 34453 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the individual in that case, Your Honor, like the plaintiffs here, would have to show specific facts demonstrating injury, redressibility and traceability. Now in this case --
05-1120 +++$+++ 34454 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your problem, I think, you take the position, the proposition that the greater the harm the greater the risk, the smaller the probability has to be before it is reasonable to act, and necessary to act.
05-1120 +++$+++ 34455 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, this Court's standing cases make clear that you have to show that granting the relief requested is likely to redress the alleged harms. And again, looking at the --
05-1120 +++$+++ 34456 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They are saying it is likely to do so, even though we cannot give you a point for point percentage correlation between reduction of gas and coastline loss. You're saying, it seems to me, that they have somehow got to pinpoint this mathematically --
05-1120 +++$+++ 34457 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't -- we're not saying that.
05-1120 +++$+++ 34458 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- before, before there is redressibility.
05-1120 +++$+++ 34459 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We're not saying that, Your Honor. We're saying that they have, they certainly have to do more than they have done here. And they're granted their standing --
05-1120 +++$+++ 34460 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Tell me what it is that they need, be more specific about what they need to do.
05-1120 +++$+++ 34461 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I will be more specific. And if I could also just point to what they grounded their case on here. They grounded their case on here, in the declarations, on the notion if the United States regulates greenhouse gas emissions of vehicles, then other countries will follow suit with respect to the emissions of vehicles and other greenhouse gas emissions. That's clear from the McCracken declaration on page 239, paragraph 32 of the JA, as well as the Walsh declaration.
05-1120 +++$+++ 34462 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I think it can be argued that the Assistant Attorney General hasn't argued that here.
05-1120 +++$+++ 34463 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-1120 +++$+++ 34464 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ He has said that 6 percent is enough.
05-1120 +++$+++ 34465 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That, that's true, Your Honor, but I still think you have to look at the basis that they've relied upon on standing. And they haven't shown specific facts which should provide any comfort to this Court that regulation of less than 6 percent or fewer greenhouse emissions worldwide will have any effect on their alleged injuries.
05-1120 +++$+++ 34466 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is there -- why is there reason to assume that it will have no effect?
05-1120 +++$+++ 34467 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-1120 +++$+++ 34468 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That seems to be the assumption you're making. You are saying unless they can pinpoint the correlation between reduction of gas and effect, let's say in coastline loss, they have not shown either causation or a sufficient likelihood of redressibility.
05-1120 +++$+++ 34469 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
05-1120 +++$+++ 34470 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But why do they have to show a precise correlation as opposed simply to establishing what I think is not really contested, that there is a correlation between greenhouse gases and the kind of loss that they're talking about; and it is reasonable to suppose that some reduction in the gases will result in some reduction in future loss. Why is that insufficient?
05-1120 +++$+++ 34471 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, one fundamental reason is that we don't know what the rest of the world is going to do, whether or not --
05-1120 +++$+++ 34472 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's assume the rest -- let's assume that the rest of the world does nothing. I don't think that's a very reasonable assumption, but let's make that assumption. So that the only thing we're talking is the 6 percent. If the 6 percent can be reduced -- I think the suggestion was over a reasonable period of time, by two and a half percent of the 6, there is, I suppose, reason to expect that there will be, maybe not two and a half percent less coastline lost, but some degree of less coastline lost because there is a correlation between the gas and the loss of the coastline. Why is that an unreasonable assumption to make in order to show causation and redressibility, bearing in mind that redressibility is a question of more or less, not a question of either/or. They don't have to show that it will stop global warming. Their point is that will reduce the degree of global warming and likely reduce the degree of loss, if it is only by two and a half percent. What's wrong with that?
05-1120 +++$+++ 34473 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, their burden is to show that if the Court grants their requested relief it will redress their injuries. I'm not aware --
05-1120 +++$+++ 34474 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Not redress their injury in the sense that it will prevent any global warming or stop global warming and stop coastal erosion; their argument is a different one. It will reduce the degree of global warming and reduce the degree of coastal loss.
05-1120 +++$+++ 34475 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think --
05-1120 +++$+++ 34476 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's their argument. Not all or nothing. But a part. That's what they're trying to show.
05-1120 +++$+++ 34477 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that's fine, Justice Souter, I grant you that. But they still have to show that there is reason that it is likely to believe, that the reduction in that tiny fraction of United States emissions, putting aside the 99 percent or the 95 percent in the rest of the world and what they do, and the evidence that shows that greenhouse gas emissions in those countries are increasing, they have to show the regulation of that tiny fraction would have an affect on their alleged injuries, not to completely redress them, Your Honor. We don't say that --
05-1120 +++$+++ 34478 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Don't they have to show that it is reasonable to suppose it will have an effect?
05-1120 +++$+++ 34479 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They have to show that it is likely, Your Honor. And they haven't even tried to make that showing. The one thing that they've --
05-1120 +++$+++ 34480 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is that showing -- and I agree with, by the way, with the Chief's suggestion a moment ago, life is not, or physics are not so simple as to assume that there's going to be a be a direct two and a half percent reduction of coastline for a two and a half percent reduction from the 6 percent. But isn't it intuitively reasonable to suppose that with some reduction of the greenhouse gases, there will be some reduction of the ensuing damage or the ensuing climate change which causes the damage? Isn't that fair?
05-1120 +++$+++ 34481 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that it is fair, Your Honor. I don't want to pretend to be an expert on global climate change. But the one thing I can say is from the materials I looked at is that this an extraordinarily complex area of science. I'm not aware of any studies available that would suggest that the regulation of that minuscule fraction of greenhouse gas emissions would have any effect whatsoever on the global -- --
05-1120 +++$+++ 34482 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But do you have any --
05-1120 +++$+++ 34483 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose others cooperate? Suppose, for example, they regulate this and before you know it, they start to sequester carbon with the power plants, and before you know it, they decide ethanol might be a good idea, and before you know it, they decide any one of 15 things, each of which has an impact, and lo and behold, Cape Cod is saved. Now why is it unreasonable? Why is it unreasonable to go to an agency and say now you do your part, which is 6 percent, and now we're going to go to a different agency like NHTSA and we're going to ask them too, and we're going to go to your electricity regulation program, and coal. And there are like not a million things that have to be done, maybe there are only seven. But by the time we get those seven things done, we'll make a big difference. Now what is it in the law that says that somehow a person cannot go to an agency and say we want you to do your part? Would you be up here saying the same thing if we're trying to regulate child pornography, and it turns out that anyone with a computer can get pornography elsewhere? I don't think so.
05-1120 +++$+++ 34484 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, what I would point you to is your decision in Lujan versus Defenders of Wildlife, Justice Kennedy's opinion in ASARCO versus Kadish, where the Court made clear that you cannot establish standing based on predictions of the actions of independent actors not before it. That's true about other agencies that aren't here today. That's true about other countries whom this Court does not have jurisdiction over.
05-1120 +++$+++ 34485 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So they couldn't have gone in and asked for ozone regulations, because that requires other countries? Or what about dumping heavy metals in the sea, and as the sea gets polluted because of what other countries do, but EPA tried to regulate that. Acid rain they tried to regulate. You're saying there is no standing to ask for any of that.
05-1120 +++$+++ 34486 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, first of all, Congress has specifically addressed two of the areas that you mentioned, Your Honor, and we're not saying that categorically --
05-1120 +++$+++ 34487 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Just because there's no standing to challenge an agency's decision doesn't mean the agency can't regulate that particular area, right?
05-1120 +++$+++ 34488 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's exactly right, Your Honor. That's exactly right.
05-1120 +++$+++ 34489 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you are saying if Congress passes a statute and they put the words CO2 right in this statute under ambient air, and they say anybody can go and sue if the EPA doesn't do it, you're saying Congress lacks the constitutional authority to do that, because it's Article III we're talking about?
05-1120 +++$+++ 34490 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, we're saying two things. First, every plaintiff has the obligation to establish that he has Article III standing under this Constitution. And secondly, there are members of this Court, for example, Justice Kennedy in his concurring opinion in Defenders of Wildlife, who did suggest that perhaps if Congress specifically addresses an issue, that could inform the standing analysis. For example --
05-1120 +++$+++ 34491 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ They can't compromise the requirements of Article III.
05-1120 +++$+++ 34492 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It cannot, Your Honor. Congress could make findings with respect to causation or other issues that this Court would have to give deference to and seriously consider, but you're right. It would not override the requirements of Article III. And there may be some global phenomenon that create more difficult challenges to establish standing but --
05-1120 +++$+++ 34493 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ As I understand the government's position, you're not merely questioning standing but you also take the position you do not have the authority to do what the plaintiff asks you to do; is that correct?
05-1120 +++$+++ 34494 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true, Your Honor, moving to the merits, that's true. And with respect to that, the agency engaged in the same type of analysis that this Court laid out in the Brown and Williamson case.
05-1120 +++$+++ 34495 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you on that question, if we turn to the statute, to Section 201, there's reference to "shall regulate" if in the judgment of the administrator there is a for real danger and so forth. In your view, is there a duty to make a judgment?
05-1120 +++$+++ 34496 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, our view is that agencies have inherent discretion to determine when to make that judgment.
05-1120 +++$+++ 34497 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could they have a discretion never to make the judgment?
05-1120 +++$+++ 34498 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that gets to the question of whether there is, what judicial review is available. We have assumed in this case that there's some measure of judicial review. So I think at some point you got to the point where the agency either has provided no reasons whatsoever, or there is no sound basis for the agency not to take that step. Then assuming that there is a role for the courts here, a court could come in and say that that was inappropriate.
05-1120 +++$+++ 34499 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But as I read your brief, you didn't really confront the question, s I understand it, of whether or not there was a duty to make a judgment at all. And I'm interested in what your position on that is.
05-1120 +++$+++ 34500 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again, I think it goes to the question -- we think the statute does not put a deadline on when the agency has to have, and that therefore --
05-1120 +++$+++ 34501 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ To me, just reading the text of the statute is a little ambiguous. I'm not entirely clear, but it seems to me that just reading that statute, I got the impression that Congress thought that the administrator had a duty to make a judgment when there was enough evidence out there that people were concerned about it and so forth, that there would be a duty there, but you think not?
05-1120 +++$+++ 34502 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's not the agency's interpretation. In fact in its decisional document under the section no mandatory duty, the agency explains why that's not its interpretation and we think that that's a reasonable interpretation. Congress knows how to constrain the exercise of discretion. We point in footnotes 18 and 19 of our brief of many examples where Congress has laid out deadlines or other constraints on the exercise of discretion, and those aren't present in Section 203.
05-1120 +++$+++ 34503 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you would agree that if they did make a judgment, then you would have authority to regulate?
05-1120 +++$+++ 34504 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. And then I think it's a point the D.C. Circuit made in the Ethyl Corporation case at footnote 37, that precisely because the statute imposes a duty to act once that endangerment finding is made, the agency has discretion to determine when to make the endangerment finding.
05-1120 +++$+++ 34505 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In Norton versus Utah Wilderness Alliance, having to do with the regulation of off-road vehicles, we indicated that one measure was whether or not the agency has unreasonably delayed its action.
05-1120 +++$+++ 34506 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's a separate sort of action, Your Honor. There are cases where people have said that this is unreasonable delay. That's not the claim that the petitioners in this case brought.
05-1120 +++$+++ 34507 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Let me understand your answer to Justice Stevens' question. If EPA made the judgment under the statute, you think they would have had the authority?
05-1120 +++$+++ 34508 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under the statute --
05-1120 +++$+++ 34509 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought you had a Brown and Williamson argument that EPA was precluded.
05-1120 +++$+++ 34510 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I was assuming -- in answering Justice Stevens' questions, that we were down in the exercise of discretion part. But you're right, Your Honor, the threshold position of the agency on this is that it lacks the authority to --
05-1120 +++$+++ 34511 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can I ask about that? I found persuasive Solicitor General Garre's point that in the acid rain context, it isn't air pollution that harms health, but rather it is the effect of the pollutant after it leaves the air and produces the acid rain. Is there anything wrong with that response? It seems to me --
05-1120 +++$+++ 34512 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think there is, Your Honor. The way that the agency looked at this is to look at the question of whether Congress intended it to regulate greenhouse gas emissions to address global climate change, and it looked to the factors that this Court laid out in Brown and Williamson. The statute as a whole is specific legislation addressing global climate change, and it concluded that the agency had not authorized it to embark on that regulatory --
05-1120 +++$+++ 34513 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You concede that it's an air pollutant that affects health?
05-1120 +++$+++ 34514 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. The agency -- what the agency found, Your Honor, was that because global climate change is not air pollution within the meaning of the statute -- which is to say that Congress did not authorize it to regulate it as air pollution.
05-1120 +++$+++ 34515 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Then why isn't it air pollution within the meaning of the statute, although whatever it is that causes acid rain is?
05-1120 +++$+++ 34516 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think, Your Honor, that the key to the agency was that Congress did not give it regulatory authority over this. And I think on the question of whether or not greenhouse gas emissions qualify --
05-1120 +++$+++ 34517 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you can't give me any text in this statute itself. It isn't the phrase "air pollution" or any other phrase?
05-1120 +++$+++ 34518 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The agency pointed to the term "air pollution agent" in the statute, and concluded that because global climate change was not air pollution that Congress intended to address --
05-1120 +++$+++ 34519 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And that gets us back to acid rain.
05-1120 +++$+++ 34520 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And with respect to acid rain, it's a good example insofar as Congress has enacted a whole separate title of the Clean Air Act to address acid rain. The other thing I want to mention on the interpretive question is, in the Brown and Williamson case, this Court assumed at the outset of its analysis that nicotine would be within the general terms of the definition of drug in the Food, Drug and Cosmetic Act, and that cigarettes would fall within the general term of drug --
05-1120 +++$+++ 34521 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So that's the position you're taking, that it is within the general term?
05-1120 +++$+++ 34522 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it's largely the position that the agency took, Your Honor, insofar as it reasoned that, look, we've looked at everything. We conclude that Congress doesn't intend us to regulate global climate change as air pollution. And so therefore, we're not going to say that greenhouse gases are air pollution agents.
05-1120 +++$+++ 34523 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which is why there's a significant difference between the agency saying that for 60 years, and I think this Court stressed that in its opinion, and Congress reacting to that, what the agency's position was. And here where it's a newly minted position, because the agency's position not too long ago was that they did have the authority.
05-1120 +++$+++ 34524 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Ginsburg, it was 30 years before the agency reached the conclusion in 1998 that carbon dioxide was an air pollutant. And again, even when it reached that conclusion, it made clear that it didn't think that the agency would exercise its authority to regulate it.
05-1120 +++$+++ 34525 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's a different question. I'm just focusing on, did it have authority to deal with this issue?
05-1120 +++$+++ 34526 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I think -- I mean, I grant you that there are differences between Brown and Williamson and this case, but the fundamental conclusion that the agency reached is the same. Which was, to borrow the phrase from the Whitman case, Congress did not intend to hide elephants in mouse holes. Here we are talking about an issue of the magnitude of regulating global climate change and greenhouse gas emissions, which are fundamentally an important part of the nation's economy. Nearly 85 percent of the economy is a direct or indirect source of greenhouse gas emissions. And when we look at when Congress did mention carbon dioxide in the statute, which is in the 1990 amendments, Section 103(g), that was the first time that Congress mentioned CO2. And when it did that, it went out of its way to say that it was giving non-regulatory authority to the agency, and moreover, that nothing in this section shall provide any basis for any air pollution control requirements. That's a strange thing for Congress to say if it believed that the agency already had this far-reaching authority to regulate greenhouse gas emissions. There are other aspects of the statute that we think lead to the same conclusion in Brown & Williamson. There's a fundamental inconsistency, the agency concluded, between attempting to regulate greenhouse gas emissions under the national air ambient quality system, and that inconsistency is similar to the inconsistency that the Court pointed out in the Brown and Williamson case.
05-1120 +++$+++ 34527 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'd like you to address that. You said there was a lot of legislation in Congress that would have been pretty inconsistent with serious regulation by the FDA. And in this case, I don't think Congress is opposing the notion. I don't know anybody there who's in favor of global warming. And it seems to me they haven't passed laws that is actually, that would be significantly interfered with by the EPA trying to do its best to deal with this problem. Or am I wrong?
05-1120 +++$+++ 34528 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think you're wrong in the following respect, Your Honor.
05-1120 +++$+++ 34529 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What articles would be --
05-1120 +++$+++ 34530 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Congress has passed at least six separate statutes to specifically address the issue of global warming, and all of them share two common features. One, we want you to research this issue and learn more about it. And two, we want you to work on an international framework for addressing global climate change. The agency reasonably concluded that unilateral U.S. regulation of greenhouse gases --
05-1120 +++$+++ 34531 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there anything in the statute that prevents them from consulting with other nations or prevents the government from doing that when they determine how best to work out whatever standards or other forms of regulation they want?
05-1120 +++$+++ 34532 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's nothing in the Clean Air Act, if that's the stature you're referring to, but I --
05-1120 +++$+++ 34533 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I presume the problem that they have in mind is that we have nothing to give in international negotiations. If we have done everything we can to reduce CO2, you know, what deal do we make with foreign nations? What incentive do they have to go along with us?
05-1120 +++$+++ 34534 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Your Honor. We've got a unique collective action problem, and yet, the reaction experience of the agency in dealing with the issue of stratospheric ozone depletion rate had precisely that situation, where the U.S. initially took steps. The stratospheric ozone depletion worsened, and it was only after international agreement was reached in the Montreal Protocol that a global solution to the problem was reached.
05-1120 +++$+++ 34535 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think they have a good reason, yes or no? Because I'm not an expert in foreign affairs. The EPA probably is more than I am. But do you think that if they do rest their decision on their analysis of foreign affairs, that that is a proper basis for an agency like the EPA to refuse to regulate?
05-1120 +++$+++ 34536 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it's a proper basis within its inherent discretion, Your Honor, for at least two reasons. One, the agency is a part of the executive branch and it had unique experience with the issue of stratospheric ozone depletion. And two, Congress has made clear, for example in the Global Climate Protection Act of 1987, that the EPA has a role in at least reporting to Congress on international cooperation and efforts in that realm.
05-1120 +++$+++ 34537 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But Congress has not directed, don't regulate domestically for purposes of global warming.
05-1120 +++$+++ 34538 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true, Your Honor, but --
05-1120 +++$+++ 34539 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The problem that I have with your reference to this very -- these various pieces of legislation that suggest that Congress has a different modus operandi in mind is that Congress certainly is aware that EPA has authority over pollutants, and it has never interfered with it.
05-1120 +++$+++ 34540 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, again, I think in looking at all the sources the agency looked to, the conclusion is, that the agency responsibly and prudently reached, is that Congress has not authorized it to embark on this regulatory endeavor. And I think the closest statute that comes to --
05-1120 +++$+++ 34541 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But isn't that a misstatement? Isn't the conclusion that they're trying to draw that Congress doesn't want them to exercise the authority they have for this purpose? And isn't that something quite different? And doesn't that raise the question whether that is a legitimate concern for them under the statute that does give them the authority?
05-1120 +++$+++ 34542 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ May I answer the question? No, Your Honor. I think the agency's conclusion was Congress had not authorized it to undertake the regulation of greenhouse gas emissions to address global climate change and that, even if it had, that authority should not be exercised. Thank you very much.
05-1120 +++$+++ 34543 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Garre. Mr. Milkey, you have 3 minutes remaining.
05-1120 +++$+++ 34545 +++$+++ FALSE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Milkey, do you want us to send this case back to the EPA to ask them whether if only the last two pages of their opinion were given as a reason that would suffice? Would that make you happy?
05-1120 +++$+++ 34546 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would not make us happy, Your Honor.
05-1120 +++$+++ 34547 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I didn't think so. (Laughter.)
05-1120 +++$+++ 34548 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, if I can address the global aspect of the problem, the fact that the solution to the whole problem --
05-1120 +++$+++ 34549 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is your answer to Justice Scalia? Because I thought you said before that you thought it was appropriate for us to send this case back so that they could redetermine in light of proper considerations whether they wanted to exercise their authority.
05-1120 +++$+++ 34550 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is exactly --
05-1120 +++$+++ 34551 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Am I wrong about that?
05-1120 +++$+++ 34552 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, that is exactly what we want. I understood Justice Scalia to be saying --
05-1120 +++$+++ 34553 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's what I was asking, yes. And you think it will go back to them and they will say, oh my goodness, the scientific uncertainty is not enough by itself? You really expect that to happen?
05-1120 +++$+++ 34554 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Respectfully, Your Honor, I think EPA will have a hard time saying that there is insufficient -- I mean, too much scientific uncertainty. The very sentence --
05-1120 +++$+++ 34555 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They said it already.
05-1120 +++$+++ 34556 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
05-1120 +++$+++ 34557 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The only question is whether that alone is enough.
05-1120 +++$+++ 34558 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Respectfully, Your Honor, they did not say that. They did not anywhere say why the existing uncertainty mattered. To the contrary, they emphasized the need to act in the face of current uncertainty, but never explained why that principle applies to a nonregulatory approach but not to a regulatory one.
05-1120 +++$+++ 34559 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What they said was until more is understood about causes, extent and significance of climate change and the potential options for addressing it, we believe it's inappropriate to regulate these emissions.
05-1120 +++$+++ 34560 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor.
05-1120 +++$+++ 34561 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That strikes me as saying they think there is too much uncertainty for them to act.
05-1120 +++$+++ 34562 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, they did not say there is too much uncertainty for them to form a judgment, which is the key issue. They said they preferred more certainty, but because of the nature of the endangerment standard, which emphasizes the important of regulating in the face of uncertainty, they have to at least explain why the uncertainty matters. And that is -- what they did here is particularly troubling in the fact that they ignored all of the indications pointing toward endangerment. They looked at what we don't know without ever looking at what we do know.
05-1120 +++$+++ 34563 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If the EPA concludes that regulating an air pollutant would endanger public health and welfare, can it decline to regulate?
05-1120 +++$+++ 34564 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not under section 202, Your Honor.
05-1120 +++$+++ 34565 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It has to regulate even if it concludes that regulation would make things worse?
05-1120 +++$+++ 34566 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Would make things worse?
05-1120 +++$+++ 34567 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
05-1120 +++$+++ 34568 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, I didn't understand that. No.
05-1120 +++$+++ 34569 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. If they thought there would be more endangerment that way they would not have to regulate.
05-1120 +++$+++ 34570 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then why can't they -- what is wrong with their view that for the United States to proceed unilaterally would make things worse and therefore they're going to decline to regular for that reason?
05-1120 +++$+++ 34571 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, first of all, I don't believe they actually said that, and there is nothing in the statute that even hints that they can take foreign policy considerations into account. To the contrary, the statute is very specific in other sections about when they're supposed to look at foreign emissions --
05-1120 +++$+++ 34572 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't the definition of public welfare extremely broad?
05-1120 +++$+++ 34573 +++$+++ TRUE +++$+++ MR. MILKEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it is certainly extremely broad, and it does include climate. Thank you, Your Honor.
05-1120 +++$+++ 34574 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
05-1126 +++$+++ 34578 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first today in Bell Atlantic Corporation vs. Twombly. Mr. Kellogg.
05-1126 +++$+++ 34580 +++$+++ FALSE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: I think the most important point that I can make today is that this is a case about the substantive requirements of antitrust law, and just as in Dura and in Blue Chip Stamps, the Court articulated the substantive requirements for pleading a claim under the securities law, and just as in Anza, it did so under RICO, so too in Associated General Contractors, in Trinko. And in the instant case, the Court is faced with the question of what a plaintiff needs to plead in order to state a claim and show an entitlement to relief under the antitrust laws. In that regard, I'd like to direct the Court's attention to paragraph 51 of the plaintiff's complaint in this case, which is at page 27 of the joint appendix, and which summarizes the grounds for plaintiffs' allegation that there is a contract combination or conspiracy in restraint of trade. The complaint states, and I quote, "in the absence of any meaningful competition among the defendants," and, quote, in light of the parallel course of conduct that each engaged in to prevent competition, the plaintiffs -- the defendants conspired.
05-1126 +++$+++ 34581 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but isn't the next sentence, the substance of the sentence is "plaintiffs allege upon information and belief that defendants have entered into a contract combination or conspiracy to prevent competitive entry in their respective telephone and/or high speed interstate markets, and agreed not to compete with one another and otherwise allocated customers and markets to one another." Now, does that state a violation of the Sherman Act?
05-1126 +++$+++ 34582 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does not, Your Honor.
05-1126 +++$+++ 34583 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It does not?
05-1126 +++$+++ 34584 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does not state a claim.
05-1126 +++$+++ 34585 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, you could leave out everything before plaintiff, the part you quoted, that's not part of the declaration in the sentence. But the sentence itself alleges a garden variety of the violation of the Sherman Act, doesn't it?
05-1126 +++$+++ 34586 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The sentence recites the language of the Sherman Act, that is correct. But what this Court's cases indicate and what Rule 8 requires --
05-1126 +++$+++ 34587 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's got the language of the Sherman Act, a conspiracy to prevent competitive entry in their respective telephone and/or high speed markets. That's not in the Sherman Act, that's a description of the alleged conspiracy in this case.
05-1126 +++$+++ 34588 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is true that they have described the alleged conspiracy, but what Dura, Associated General Contractors, and other cases of this Court require is a statement of facts that warrants the legal conclusion that the plaintiffs wish to --
05-1126 +++$+++ 34589 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Kellogg, the Federal Rules of Civil Procedure assiduously avoid using the word fact throughout. And from 1938 on, it has been repeated that it is not necessary to plead facts. The index of forms, the appendix of forms shows how simple the plain statement of a claim is, and you're not required to plead facts. And yet that's the central -- seems to be the central thrust of your argument.
05-1126 +++$+++ 34590 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, every case of this Court dealing with pleading standards has indicated that it is not sufficient merely to recite a legal conclusion, and claim an entitlement to relief therefore. In Dura, for example, the plaintiffs claimed proximate cause and loss causation, and the Court said --
05-1126 +++$+++ 34591 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But Mr. Kellogg, that's not a legal conclusion, it's an allegation of fact that there was an agreement to prevent competitive entry into respective markets. There are dozens of antitrust complaints that are no more specific than that.
05-1126 +++$+++ 34592 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, in the context in which this claim is made, the allegation of agreement or conspiracy is not a statement of fact. It is an inference that the plaintiffs seek to draw from the facts that they allege in the complaint. Context here is everything. In form 9, for example, Justice Ginsburg, or in the case of Sherkovitz, you had a specific context. You had a time, a place, individual participants named, a clear injury in form 9, a broken leg as a report --
05-1126 +++$+++ 34593 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But negligently drove. It doesn't say whether it went through a stop light. Doesn't say whether it was speeding. It doesn't say any one of the umpteen ways one could be negligent.
05-1126 +++$+++ 34594 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Justice O'Connor, but you have a direct context -- Justice Ginsburg, you had a direct context in which an eyewitness participant in the event is claiming negligence on behalf of the driver of the car. In the instant case, we have no injury that's separate from the alleged conspiracy, and we have no time, place or participants for the alleged conspirators.
05-1126 +++$+++ 34595 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you do have a case -- anywhere, forget antitrust. Suppose it's a tort case, and the following complaint is filed. My foot hurts. I've gone to Dr. Smith for 15 years. I claim he is negligent. Is that valid?
05-1126 +++$+++ 34596 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do not think so, because I don't think --
05-1126 +++$+++ 34597 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Now, if you think that's valid, I understand that you think this complaint does just what I said in the field of antitrust. But is there any case that you've come across which would say a complaint just as I have described it --
05-1126 +++$+++ 34598 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1126 +++$+++ 34599 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Either is valid or is not valid. You'd like to find one that says it's not valid, so what's your best effort in any field of law.
05-1126 +++$+++ 34600 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would cite, for example, the Court's decision in the Papasan case, where the plaintiffs claimed that they were not getting a minimally adequate education. That sounds like a factual statement. But what the Court expressly said in that case is that we do not have to accept legal conclusions in the guise of factual allegations.
05-1126 +++$+++ 34601 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But of course, there the legal standard was not clear. And the Dura case, I looked at, and perhaps you disagree based on what you -- what I have just heard, and I thought Dura was a lack of proximate cause. They just didn't show any relation between the injury they alleged to have suffered, and their own.
05-1126 +++$+++ 34602 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think Dura is --
05-1126 +++$+++ 34603 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And that's the way I read Dura.
05-1126 +++$+++ 34604 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think Dura is an exact analogy. In Dura, they allege proximate cause, they allege loss causation. And the Court said, well, let's look at their statement of facts, which only showed that they had bought at an inflated price. And the Court said there was a fatal gap between that factual allegation and the legal conclusion that they wished to draw.
05-1126 +++$+++ 34605 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You can get into trouble by alleging too much, I guess, because if you allege a lot, you might leave something out. And you say, well, what about that one. But suppose we keep it very, very minimal. And a person just says, I'm hurt and the defendant, I claim, negligently injured me. Period. Period.
05-1126 +++$+++ 34606 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would not provide --
05-1126 +++$+++ 34607 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why not?
05-1126 +++$+++ 34608 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The grounds upon which the claim is based.
05-1126 +++$+++ 34609 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So the only thing that's missing there are some facts.
05-1126 +++$+++ 34610 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Some facts indicative that the defendant is responsible for the --
05-1126 +++$+++ 34611 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. So now you're saying a complaint has to have facts?
05-1126 +++$+++ 34612 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
05-1126 +++$+++ 34613 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I thought you were also making a different argument. I thought you were making the argument that they have, by their pleadings, in effect, affirmatively indicated that they don't have enough facts to support a general allegation. I thought you were saying that because of the preface that you began reading, that in view simply of the fact that they are not competing, and in view of parallel conduct, they have violated the Act. So I guess my question is, would your position be different if there were no allegation simply of an absence of competition and parallel action if -- would your position be different if they had simply alleged, as Justice Stevens emphasized, that here were these parties and they had -- they had taken some action, not specified, which resulted in violation of the Act?
05-1126 +++$+++ 34614 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our position would not be different. It's the uniform view of the cases that I cited, the Courts of Appeals and a requirement of Rule -- Rule 8 that you do more than simply parrot the words of the cause of action or announce legal conclusions. But as you point out, in this case --
05-1126 +++$+++ 34615 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that would not be good enough, but are you saying that this is worse because, in effect, they have gone some steps towards specification. And the specifications that they have made affirmatively show that they don't have enough for the agreement.
05-1126 +++$+++ 34616 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is certainly true that all they have alleged is conduct from which they seek to draw an inference of conspiracy. And they have made that quite clear, that they have made no direct allegation.
05-1126 +++$+++ 34617 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you're saying that inference cannot be drawn from the particular facts that they have alleged.
05-1126 +++$+++ 34618 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. Our position is that as a matter of substantive antitrust law, what this Court said in Matsushita is that antitrust law limits the range of permissible inferences that can be drawn from parallel conduct. And if all you have is parallel conduct that's consistent, on the one hand, with conspiracy, or on the other hand, with ordinary business judgment, you cannot draw an inference of the sort that the plaintiffs depend upon in this case.
05-1126 +++$+++ 34619 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Of course, that may be true on summary judgment, you may be dead right on the merits, but are you telling me that an allegation that the defendants have agreed not to compete with one another is not a statement of fact?
05-1126 +++$+++ 34620 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I am. I would say that that's a -- that's a conclusion --
05-1126 +++$+++ 34621 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, what if they said they agreed in writing not to compete with one another, would that be sufficient? Or if they have agreed orally not to compete with one another, would that be sufficient?
05-1126 +++$+++ 34622 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If there were a specific context and they said --
05-1126 +++$+++ 34623 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If they said they have agreed orally not to compete with one another, would that be a statement of fact, an allegation of fact?
05-1126 +++$+++ 34624 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Because you require --
05-1126 +++$+++ 34625 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then why did you leave the words orally out? Why is it not a statement, allegation of fact?
05-1126 +++$+++ 34626 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the plaintiffs here were very careful, in light of Rule 11, not to make any direct allegations of conspiracy, not to suggest that there was a time and place --
05-1126 +++$+++ 34627 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that's a direct allegation of conspiracy, that very statement.
05-1126 +++$+++ 34628 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But they make it clear in that paragraph that it's an inference.
05-1126 +++$+++ 34629 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They make it fairly clear that they may only have the evidence of parallel conduct that you describe, and that may not be sufficient, and maybe for that reason, you get a summary judgment. But how you can say this is not an allegation of fact, I find mind-boggling.
05-1126 +++$+++ 34630 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm saying that it's not sufficient to state a claim. Just as the allegation that there was lost causation in Dura, or that there was harm to the union in Associated General Contractors or there, that there was harm --
05-1126 +++$+++ 34631 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now you're, that's the part precisely which you're following that I don't, that I actually don't know, is the extent to which you have to put in a complaint, in whatever field of law, you can allege a fact. You say the person ran over me --
05-1126 +++$+++ 34632 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1126 +++$+++ 34633 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or you say, they treated me negligently. That's a fact. That means something happened there. But suppose you write the complaint and there is just no notion that you have a what and when, how, under what circumstances. It's just totally out of thin air, and the defendant doesn't know what, what period of time he is supposed to be thinking about, what, what happens to such a complaint? There must be some law on it in torts or someplace?
05-1126 +++$+++ 34634 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, ordinarily in a complaint like that, you could file a 12(e) motion and ask for more specificity. Our problem --
05-1126 +++$+++ 34635 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why couldn't you do the same?
05-1126 +++$+++ 34636 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our problem with the current complaint is not a lack of specificity, it's quite specific. It provides color maps and such. The problem is that the facts specifically alleged simply don't amount to an antitrust violation because they don't support the inference that the plaintiffs ask the Court to draw.
05-1126 +++$+++ 34637 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, but they're -- they're using the fact that there was parallel behavior as a basis for thinking there was more than parallel behavior. They are using it as a basis for thinking that once, on some occasion that's relevant, there were people meeting in a room and saying things to each other. So they are not just saying that it's sufficient. They are saying it's evidence that something else occurred.
05-1126 +++$+++ 34638 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. That's exactly what they are saying and what Matsushita and the other courses, cases of this Court dealing with parallel conduct indicate, is that that's not a fair inference from parallel conduct.
05-1126 +++$+++ 34639 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Wasn't that a summary judgment case and hadn't there been discovery before? The Matsushita decision?
05-1126 +++$+++ 34640 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. But the Court announced that as a principle of substantive law. They said substantive antitrust law limits the range of permissible inferences. We are not suggesting that the plaintiffs need the sort of specificity or certainly any evidence at the pleadings stage. For example --
05-1126 +++$+++ 34641 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They just have to say orally, I wish you would reconsider that? Because if that's, if that's all you're arguing, I don't see anything to be gained by -- by such a holding. It doesn't tell you -- you know, this is a suit against a number of large corporations, nationwide businesses, thousands of employees. And on this complaint you have no idea who agreed with whom, where, when, any of that. I can understand that you're saying that does not give us enough notice to prepare a defense. But if you say oh, but it would be perfectly all right so long as they said orally. I mean -- forget about it.
05-1126 +++$+++ 34642 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I should not agree to that. That's simply adding the word orally. It's certainly fair when you are talking about a nationwide class over a period of 10 years attacking an entire industry to suggest that the plaintiffs have to give some indication of what it is that the defendants have done that is wrong. Some concrete basis for the Court to believe there is a reason to go forward to the --
05-1126 +++$+++ 34643 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So in the negligently drove case, the plaintiff negligently drove over -- the defendant negligently drove over the plaintiff, if it's not specific as to time and place it must be dismissed? If it's specific as to time and place it's, it withstands the motion?
05-1126 +++$+++ 34644 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well certainly, Form 9 is very specific. It gives a specific corner, it gives a time, it gives the names of the participants.
05-1126 +++$+++ 34645 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What if it does say within the last 10 years.
05-1126 +++$+++ 34646 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that's sufficient, Your Honor. But with a -- with a --
05-1126 +++$+++ 34647 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you have a case, do you have a case I can look to that tells me that?
05-1126 +++$+++ 34648 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With a negligence case a 12(e) motion could then specify the actual time and place, but the plaintiffs here have had ample opportunity to amend their complaint to supplement. If they had any specifics indicating that there was such an agreement as opposed to lawyer speculation and a desire to engage in expensive discovery they would have produced that.
05-1126 +++$+++ 34649 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did you seek a more specific statement?
05-1126 +++$+++ 34650 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We did not, Your Honor.
05-1126 +++$+++ 34651 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why not? Why didn't you ask when and where was this agreement.
05-1126 +++$+++ 34652 +++$+++ TRUE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well again the whole way this was litigated below by the plaintiffs was that they, they acknowledged they had no specifics. They simply asked that an inference be drawn from the parallel conduct they alleged. And that is our central point that you simply cannot infer an agreement from this conduct. If the Court has no questions, I reserve my time.
05-1126 +++$+++ 34653 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Kellogg. Mr. Barnett.
05-1126 +++$+++ 34655 +++$+++ FALSE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court. The fundamental concern of the United States is that the decision of the Second Circuit can be read to hold that a Section 1 Sherman Act complaint will survive a motion to dismiss merely by alleging parallel action or inaction in attaching the bare assertion of an agreement. Such a result fails to appreciate that parallel action or inaction is ubiquitous in our economy and often reflects beneficial competitive forces.
05-1126 +++$+++ 34656 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What do you mean can be held, can be thought to hold that? Is there any interpretation of what they did.
05-1126 +++$+++ 34657 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well there are certain portions of the decision that talk about a plausibility requirement but when it turns to the specific area of a Section 1 complaint and a complaint alleged on parallel conduct, I agree with you, Justice Scalia, that that's the only interpretation I can draw from that passage. The Court held that if you allege parallel action unless there are no set of facts that can be proved, and it's always possible to hypothesize an agreement, you cannot dismiss that complaint.
05-1126 +++$+++ 34658 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, is that really what they -- I thought, and correct me if I'm wrong, but I thought that the, that the Court spoke of no set of facts, only on the assumption that there had been a pleading which did raise a plausible, possible inference of forbidden conduct, and I thought the Court was saying if the, if the plausibility criterion has been satisfied, then the only way that the defendant can get a dismissal is by showing that there is no set of facts which would actually support the action. And I'm not sure that that can be done at the, at the, at the stage of simply pleading a dismissal as opposed to summary judgment or something like that. But I thought the Court did not get to its no set of facts point until it had first assumed that there had been a, a pleading on the basis of which a plausible inference of forbidden conduct could be drawn. Am I about that?
05-1126 +++$+++ 34659 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Souter, I read that passage of the Second Circuit decision as not expressly referencing the plausibility requirement. There is language saying that the allegation needs to be plausible but when you get to this specific passage it says that if you allege parallel conduct a court cannot dismiss the claim unless there could be no set of facts that could be proved. But regardless, even if I am, your interpretation is potentially permissible interpretation, the fundamental concern of the United States is that this Court, having the case now, clarify that a Section 1 Sherman Act complaint should not be able to survive a motion to dismiss unless it alleges some facts beyond mere generic parallel action.
05-1126 +++$+++ 34660 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, so that if plausibility is the standard this does not meet the standard of plausibility, that's your argument?
05-1126 +++$+++ 34661 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we prefer the formulation that, from the Court's opinion in Dura that says that the facts need to demonstrate some reasonably founded expectation that there is an unlawful agreement within the meaning of Section 1 of the Sherman Act.
05-1126 +++$+++ 34662 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And some parallel action would indicate that wouldn't it? I mean, if for example they, you have nine companies that change their price at the same hour of the same day, 10 months in a row.
05-1126 +++$+++ 34663 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Justice Scalia. I agree.
05-1126 +++$+++ 34664 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you're, you're not saying that parallel action can never create this, this kind of --
05-1126 +++$+++ 34665 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. If all you know is that there is parallel action or inaction, that in and of itself tells you nothing. Once you start to add the facts and circumstances surrounding it, particular parallel action can be suspicious enough, and the example you give is a good one, that demonstrates a reasonably founded expectation for believing that discovery may yield evidence showing that that parallel price increase at the same time by nine different companies was the result of an unlawful conspiracy. If I can turn to, in -- in deciding whether or not there is such a reasonably founded expectation, you do need to look to the substantive law. Here the issue is the law on agreement under Section 1 of the Sherman Act. Some of the questions I think I've heard go to this issue. Section 1 law specifically limits the kinds of facts that can be used to establish an agreement that is cognizable under the Sherman Act. In particular, the Court's rulings made clear that conscious parallelism which some economists might argue is a form of an agreement, is not an agreement within the meaning of Section 1.
05-1126 +++$+++ 34666 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's clear it's not sufficient to prove it, but is it admissible evidence?
05-1126 +++$+++ 34667 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It may be admissible evidence but depending on the facts and circumstances --
05-1126 +++$+++ 34668 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Should a plaintiffs's complaint fail because it includes unnecessary, verbose, admissible evidence?
05-1126 +++$+++ 34669 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. It should fail if it fail -- if it does not allege facts that indicate reasonable found --
05-1126 +++$+++ 34670 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is not it an allegation that they've agreed not to compete with one another an allegation of fact?
05-1126 +++$+++ 34671 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is a combined question of law and fact in our view, because as I said the Section 1 law limits the kinds of facts that can be used to establish an agreement. If all they have alleged is parallel action without more --
05-1126 +++$+++ 34672 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But they have alleged more. They have alleged an actual agreement.
05-1126 +++$+++ 34673 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But as paragraph 51 of the complaint is, as you were discussing, in some ways even worse. Because it specifically relies upon parallel action and alleged parallel inaction.
05-1126 +++$+++ 34674 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what if it didn't? I mean, I mean face the question that Justice Stevens puts. Suppose you have a complaint that says nothing else except that these defendants entered into an agreement in -- in restraint of trade.
05-1126 +++$+++ 34675 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that is not sufficient because in our view the complaint needs to allege some facts that demonstrate a basis for believing there was an unlawful agreement within --
05-1126 +++$+++ 34676 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What if the complaint in addition to that alleged that up to a certain date, it was unlawful for the companies to compete with one another but the law was changed and after that change took place they were advised by their lawyers they could compete, but they agreed not to. Would that be sufficient?
05-1126 +++$+++ 34677 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Every business, every day fails to enter some new line of business or take some potential competitive action. The mere --
05-1126 +++$+++ 34678 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But Justice Stevens's question was that the allegation was that after that date they agreed not to compete. That states -- that states a cause of action under the Sherman Act, doesn't it?
05-1126 +++$+++ 34679 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I would, with respect, Mr. Chief Justice, I would disagree with that. There still needs in our view to be some allegation that indicates -- a factual allegation that indicates a reason for believing there may have been unlawful agreement.
05-1126 +++$+++ 34680 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can they say on the 14th of January, 2004, we believe that in the city of New York, they agreed upon this course of action? That would surely be sufficient?
05-1126 +++$+++ 34681 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That may be sufficient because it is providing enough facts to give you a reason to believe that the plaintiff has a basis for --
05-1126 +++$+++ 34682 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it's saying, all I've done is limited it in time and space. Just as you might say on October the 24th, 2004 at the corner of 14th and Third Avenue, defendant drove negligently and injured me. That's certainly a complaint, isn't it?
05-1126 +++$+++ 34683 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, and it -- you -- you --
05-1126 +++$+++ 34684 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't it?
05-1126 +++$+++ 34685 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It needs to allege enough specifics --
05-1126 +++$+++ 34686 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, look, the one I just alleged in the tort law is a complaint. I've just copied it out of the model complaints.
05-1126 +++$+++ 34687 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I want to be clear --
05-1126 +++$+++ 34688 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Am I right or not?
05-1126 +++$+++ 34689 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The facts allege need to be specific enough to suggest --
05-1126 +++$+++ 34690 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I understand the standard.
05-1126 +++$+++ 34691 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1126 +++$+++ 34692 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I want to know how to apply the standard and now I take my tort case --
05-1126 +++$+++ 34693 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1126 +++$+++ 34694 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- which is okay, and now I say sometime during the last 10 years he drove negligently and injured me. Is that no good?
05-1126 +++$+++ 34695 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In my view that's probably insufficient --
05-1126 +++$+++ 34696 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And so you're saying that this case is like that, when because they don't say when they met, they don't say what happened, they don't give a time or place. If that's, leaving your side parallelism out of it, I'm past you on that, all right? I'll accept for argument's sake all your point about that. Now if you're saying this is too vague, leaving that out of it, because it doesn't say time and place of the meetings or give any other clue for meetings etcetera, what's your best authority ? This is an area of law I'm not familiar with. I'm looking for cases that will tell me how specific a complaint has to be to tie the events down to specific ones.
05-1126 +++$+++ 34697 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that this Court's decision in Dura Pharmaceutical --
05-1126 +++$+++ 34698 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Dura is still the best. I think I, did I write that case? (Laughter.)
05-1126 +++$+++ 34699 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You did --
05-1126 +++$+++ 34700 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm not drawing total comfort from it. (Laughter.)
05-1126 +++$+++ 34701 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In fact I'd like something in tort law or something that, you know, that I get a general idea of what the law is because I don't know that antitrust is --
05-1126 +++$+++ 34702 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Barnett, I thought --
05-1126 +++$+++ 34703 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I thought our brief lists cases that go to that point.
05-1126 +++$+++ 34704 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Barnett I thought you had, you had said that you don't need to indicate the particular day of the agreement. That it would be enough if it was the kind of parallel action that suggested an agreement that over nine years they all raised the price at the same time. Now that doesn't really give the defendant notice of, you know, what individuals were responsible for this, when it occurred. But you say that would still be adequate?
05-1126 +++$+++ 34705 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it does provide notice that -- this is a fairly low threshold. It provides some indication. It can be an indication of direct evidence. It can be an indication of circumstantial evidence. It does focus the litigation, however, by providing a, a reason why the court and the defendant should be defending themselves against a section 1 claim. My time is up.
05-1126 +++$+++ 34706 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Barnett. Mr. Richards, we'll hear now from you.
05-1126 +++$+++ 34708 +++$+++ FALSE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice and may it please the Court: There are four essential dimensions to the problem that's before the Court and on every one of those dimensions the guidance that the Solicitor General gave in its amicus brief in the Swierkiewicz case is 180 degrees opposite the guidance that the Solicitor General is providing in its amicus brief in this case. The first of those dimensions I'll begin with because it's where petitioners began. In their brief, the Solicitor General in the Swierkiewicz case very clearly said that evidentiary standards cannot be made into pleading standards. What they said on page 5 was that by requiring pleading of the McDonnell Douglas prima facie case from employment law the Second Circuit had erroneously conflated the fair notice owed the defendant at the outset of the litigation with the standards governing the plaintiff's present of proof in court. Later at page 11, they said the court's test confuses pleading --
05-1126 +++$+++ 34709 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now you're reading from the Swierkiewicz brief?
05-1126 +++$+++ 34710 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ From the Swierkiewicz Solicitor General brief. They said that the court test in the Second Circuit that was reversed --
05-1126 +++$+++ 34711 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, i mean, you know, that's shame on them. But we're trying to get this case right and, you know, I don't care what position they took before. I care about what the right answer is, and I find it difficult to believe that you can simply allege in a complaint, I was injured by the negligence of the defendant in driving an automobile, period. Does that satisfy the, the Federal Rules?
05-1126 +++$+++ 34712 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's a big difference between -- the answer is I don't know, perhaps.
05-1126 +++$+++ 34713 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Perhaps?
05-1126 +++$+++ 34714 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Perhaps. But that's very different from this case and it's different in that an automobile accident is something that happens all in one moment in time. An antitrust conspiracy like the conspiracy alleged --
05-1126 +++$+++ 34715 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The agreement happens at one moment in time.
05-1126 +++$+++ 34716 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, it could happen in many moments.
05-1126 +++$+++ 34717 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Meetings of the minds, meeting of the minds. I used to each Contracts. Meeting of the minds at one moment in time, okay.
05-1126 +++$+++ 34718 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But what the Second Circuit said on this point, and I submit that the Second Circuit was correct, was that the complaint does set forth the temporal and geographic parameters of the alleged illegal activity and the identities of the alleged key participants, and I think that's correct.
05-1126 +++$+++ 34719 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But where does it set forth agreement?
05-1126 +++$+++ 34720 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It alleges --
05-1126 +++$+++ 34721 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Temporal, geographic, the identities, but where does it set forth anything evincing an agreement other than the allegation of parallel conduct?
05-1126 +++$+++ 34722 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It alleges that there was an agreement, but it doesn't prove that there was an agreement because proving the facts alleged is not a plaintiff's burden in the complaint.
05-1126 +++$+++ 34723 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you have any, is there an allegation of an agreement apart from the parallel conduct?
05-1126 +++$+++ 34724 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-1126 +++$+++ 34725 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what does that consist of?
05-1126 +++$+++ 34726 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The leading plus factor that's generally used in, in the Matsushita context, in the Monsanto context, is action that would have been against the self-interest of the conspirators in the absence of a conspiracy, and this complaint alleges very clearly that the conduct of not entering into one another's territories and competing among the ILECs as a CLEC was contrary to what would have been --
05-1126 +++$+++ 34727 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it states -- would it state an antitrust violation if had you a grocery store on one corner of the block and a pet store on the other corner of the block and you say, well, the grocery store is not selling pet supplies and they could make money if they did, therefore that's an antitrust violation?
05-1126 +++$+++ 34728 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If that conspiracy were implausible, if it made no sense.
05-1126 +++$+++ 34729 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's all the facts that are alleged.
05-1126 +++$+++ 34730 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, but the Second Circuit standard and the standard we defend is that if someone alleges a conspiracy I that just makes no sense because it's obvious from the face of the complaint that the alleged conspirators aren't in the same product market, not in the same geographic market or something of that kind, there is no conceivable motive for them to enter into the kind of conspiracy at hand, the complaint can be dismissed.
05-1126 +++$+++ 34731 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If my case, the gasoline, oil prices fell, but I happen to know there were four gasoline shops near each other, gasoline stations, and they didn't cut their prices. Complaint?
05-1126 +++$+++ 34732 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-1126 +++$+++ 34733 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, then that's the economy, and you can go sue half the firms in this economy. Every firm in a concentrated industry engages in -- I mean, normally conscious parallelism, and I know there are economists who think that that should be the case, but I thought the law to date was that the Department of Justice is not given by the Sherman Act the authority to remake the entire American economy. But if we accept your view I guess it is.
05-1126 +++$+++ 34734 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Breyer, in the NHL case, the National Hockey League case, which is one of the cases that the petitioners relied upon for a circuit conflict to get here, what the court said is that allegations that defendant's action taken independently would be contrary to their economic self-interest will ordinarily tend to exclude the likelihood --
05-1126 +++$+++ 34735 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ordinarily, if you take that sentence and read it for how you're reading, a consciously parallel action is a violation of Sherman Act section 2, then we have that radical change that many have advocated for the last 40 or 50 years, that half the economy is in violation, because in any concentrated industry, after all, it is in the interest of a firm to cut prices and to make a large market unless he knows his three competitors will also keep prices up. Now, you have to know that or you'd cut them. And that's called conscious parallelism. And I had always thought that this Court had not said that that in and of itself is a violation of the Sherman Act.
05-1126 +++$+++ 34736 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Breyer, we don't just allege conscious parallelism. We allege --
05-1126 +++$+++ 34737 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I know that, but if in fact all you have to do in order to bring a price-fixing case and get into discovery is to allege conscious parallelism and then add without further foundation, and we think there was a real agreement too, but there's nothing other than the conscious parallelism to back it up, now we've got just what I said, with the exception you might not win at the end of the day. What have you is a ticket to conduct discovery. Now, that's what's bothering the Department of Justice and so I'd like to know the answer to that problem.
05-1126 +++$+++ 34738 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Breyer, the difference between that, a critical difference between that scenario and what we have alleged in this complaint is that we do allege in great detail that not entering into one another's territories would have been contrary to the interests of --
05-1126 +++$+++ 34739 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that does not help you with respect to the other claim, the claim that there was a conspiracy to prevent upstart competitors from coming in. There's no plus factor as I understand it alleged there, and I also understand that it would have been entirely in the interest of each of your defendants to keep the upstarts out and that there is no need for them to agree to do that. It would be the most natural thing in the world to do it. What do you say about that part of your case?
05-1126 +++$+++ 34740 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As to that aspect of the case, paragraph 50 does allege two plus factors, but they are essentially allegations of common motive, which is a less strong, I'll grant you --
05-1126 +++$+++ 34741 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but a common, isn't the common motive consistent, just as consistent with no agreement as with agreement? In other words, they didn't have to agree; their common motive was operative agreement or not?
05-1126 +++$+++ 34742 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The important thing as to that aspect of the conspiracy is the Continental case in this Court, which said that you're not supposed to dismember -- it's an inappropriate way to approach a conspiracy to dismember it, look at one piece of it in isolation, evaluate it as though it's by itself and then wipe the slate clean at the end of that analysis, and that's essentially what the other side is trying to do repeatedly.
05-1126 +++$+++ 34743 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, what the other side is saying is that simply by alleging parallelism when it would be in the interest of each of the alleged conspirators to do just as you claim they are doing in the absence of an agreement, you have not alleged something that gets to the threshold of plausibility. That's their argument and I, I --
05-1126 +++$+++ 34744 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think, by the way, that that argument applies not just to the keeping out the upstart claim, but also to the not entering the other alleged conspirator s' fields of monopoly, if you want to put it that way, because if I, if I enter your field I know that you're going to enter mine. It just doesn't pay for me to do it. Yeah, I can make money, but I'll lose money. It seems to me perfectly natural for companies that have a certain geographic area in which they are the, the principal, the selected instrument and although they technically can enter somebody else's geographic area, they know that if they do it they will be subjected to the same thing. That is nothing more than conscious parallelism.
05-1126 +++$+++ 34745 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You may reply to us jointly or severally, however you may want. (Laughter.)
05-1126 +++$+++ 34746 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If I may, I'll try to pose a hypothetical that I think addresses Justice Souter's question and then, Justice Scalia, I'll try to address your question. Justice Souter, a good example would be suppose one alleges a conspiracy to rob a bank and to steal a number of getaway cars at the same time and one comes -- in order to get away, so that the conspirators couldn't be found at the site of robbing the bank. One could say, well, there's a reason to rob the getaway cars totally independent of the bank and without a conspiracy. Why do they need a conspiracy to steal a car? Why isn't that something that they wouldn't individually do?
05-1126 +++$+++ 34747 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the difference between that case and this is that the allegation with respect to the agreement to procure the getaway cars gets to a kind of specificity that is not present here. Here the allegation simply is parallel conduct to make it hard for the upstarts to get in. And at that general level the answer is, of course anyone in his right mind would want to make it difficult to let the upstarts in. There's no need to assume that they might have agreed on some matter of detail which is not essential to the scheme. This is a general characteristic of competition and resistance of competition.
05-1126 +++$+++ 34748 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand, but the point I'm trying to make with the hypothetical is that what one does if one is just looking at the conspiracy to keep CLECs out by itself first, taking the secondary aspect of the conspiracy, putting it first and analyzing it in isolation, is like taking the getaway car theft, analyzing it in isolation, saying, well, they have a reason individually to steal the cars, so I guess that couldn't --
05-1126 +++$+++ 34749 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Richards, can I ask you this question. Supposing that you were allowed to have discovery and each chief executive of the defendant companies got on the stand and said: I never talked to my, my competitors at all, I never seriously considered competing in the other, other company's territory for the reasons set forth in the, in your opponent's brief on the merits here. We never did agree. And you're able to prove the things you've alleged in the agreement. Would the, would it be appropriate to enter summary judgment against you on that testimony if you had no evidence of a specific agreement?
05-1126 +++$+++ 34750 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the context of summary judgment or at trial, we would be required to prove what we have now alleged.
05-1126 +++$+++ 34751 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But my question is you can prove what you've now alleged factually, but they deny the existence of any agreement and they explained the reasons for it exactly as the lawyers did in this brief. Would you not lose on summary judgment?
05-1126 +++$+++ 34752 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If we don't have proof at that point of what we've alleged here, we'd lose --
05-1126 +++$+++ 34753 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ After several years --
05-1126 +++$+++ 34754 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Prove what you have alleged, in effect, except for the key allegation of agreement among the competitors. If you had no other evidence of that agreement, would you win.
05-1126 +++$+++ 34755 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If we had proof that they actually acted against what would have been their self-interest in the absence of a conspiracy, we would satisfy then the Matsushita standard for summary judgment.
05-1126 +++$+++ 34756 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't understand acting in self interest. I mean, they might just decide apart from, you know, if they go into their territory they'll come into mine, that investing in this wired business isn't the best, the best bet for them. Maybe they want to get into the wireless business and think that's a better way to spend their money.
05-1126 +++$+++ 34757 +++$+++ TRUE +++$+++ MR. BARNETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Surely it is possible to conceive of facts under which they would not have not conspired and they would have had a different motive, but that's not the legal standard under Conley versus Gibson.
05-1126 +++$+++ 34758 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But I'm questioning you. You say you meet the plus factor because they were acting against their self- interest, that a self-interested player in this league would have gone into the other's territory, and I'm questioning that by saying that they might have seen this whole area as not the best place to invest their money.
05-1126 +++$+++ 34759 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand that. But we have alleged that as fact, Justice Ginsburg, and that fact and that allegation has to be treated as true under conventional pleading standards for purposes of a motion to dismiss. If we are unable to prove that fact when we get to summary judgment --
05-1126 +++$+++ 34760 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You mean the mere fact that you have alleged something is against their self-interest is enough to make an issue of fact on whether it's against their self-interest?
05-1126 +++$+++ 34761 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, yes.
05-1126 +++$+++ 34762 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ They could have gone on the stand, they gave all the reasons in the red briefs -- or the blue briefs in this case, that say it's not against their self-interest; you'd say that would be a jury question?
05-1126 +++$+++ 34763 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, not at summary judgment. What I'm saying is that at the pleading stage to allege that, which is an allegation of fact, satisfies pleading standards. Just to allege it with testimony on the other side and no evidence to prove that allegation on summary judgment --
05-1126 +++$+++ 34764 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are you suggesting that you don't have to prove an actual agreement? You can merely prove conduct contrary to self-interest is sufficient?
05-1126 +++$+++ 34765 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Conduct contrary to self-interest is a way of inferring actual agreement in the absence of direct evidence.
05-1126 +++$+++ 34766 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you agree you must -- do you agree that you must prove an actual agreement among the defendants?
05-1126 +++$+++ 34767 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There must be an inference of actual agreement, but the inference can be drawn from circumstantial evidence, and that's what Matsushita is all about.
05-1126 +++$+++ 34768 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So then when we get back to the paragraph 51, let me start with your statement at the bottom half of that paragraph, that plaintiffs allege upon information and belief that they have entered into a contract, is a conclusion based upon your prior allegations, it's not an independent allegation of an agreement. It's saying because of this parallel conduct, because we think it's contrary to their self interest, therefore, they have agreed.
05-1126 +++$+++ 34769 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Counsel presented it as though it's a complete summary of everything, but what it says is, and the other facts and market circumstances alleged above, and it's preceded by --
05-1126 +++$+++ 34770 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's a statement of a conclusion based upon your allegations that precede it.
05-1126 +++$+++ 34771 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
05-1126 +++$+++ 34772 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's not a statement that independently there apart from all of this, there's an agreement.
05-1126 +++$+++ 34773 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's also an independent statement and allegation on information and belief, which is permitted under Rule 8, that there is agreement.
05-1126 +++$+++ 34774 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I guess if you had just alleged the last part of paragraph 51, plaintiffs have alleged, plaintiffs allege upon information and belief, et cetera, without the detail that you provided, would that have been sufficient?
05-1126 +++$+++ 34775 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you gave no context of what kind of a conspiracy you were alleging and what kind of scope it had, so that a court could balance --
05-1126 +++$+++ 34776 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you omit all the allegations about parallel conduct and the other allegations that you think provide a basis for inferring a conspiracy from the parallel conduct, if you omit all that but you just include the last part of 51, would that be enough?
05-1126 +++$+++ 34777 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If there isn't enough in the way of facts alleged to permit a court to understand what it is you're claiming in general terms happening, then you haven't satisfied Rule 8. I mean --
05-1126 +++$+++ 34778 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's the answer to Justice Alito's question in this case?
05-1126 +++$+++ 34779 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in this case we have provided, as the Second Circuit --
05-1126 +++$+++ 34780 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. His hypothetical is all you've done is to allege the final sentence without the preceding clause, the five or six lines before there's a comma. That's out. All there is is the allegation of the conspiracy. Is that enough in this case?
05-1126 +++$+++ 34781 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In this case with the allegations of the nature of the conspiracy that precede that sentence, it's enough.
05-1126 +++$+++ 34782 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. The hypothetical is without the preceding clause. Is that enough --
05-1126 +++$+++ 34783 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That sentence by itself --
05-1126 +++$+++ 34784 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that enough in this case for what Justice Alito asked, and I think we are interested in the answer that you make given this complaint in this case that we are faced with.
05-1126 +++$+++ 34785 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that that would satisfy conventional pleading standards under Rule 8(a). On the other hand, I don't think it would satisfy the Second Circuit's standard below, because the Second Circuit required enough facts to enable a court to wrap its mind around a complainant, understanding what it is you claimed happened. You don't have to prove your case as a complainant, you just have to --
05-1126 +++$+++ 34786 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'd also like a clear answer, and I would like to go back to Justice Stevens' question because I'm not sure what you're thinking there. We have three steel sheet companies in the United States, no more. They sell at $10 a sheet. One day we have action in the case, a memo to the president of the company. He says Mr. President, if you cut your prices to $7 you will make even more money unless the others go along. And if they get there first, you will lose money. So whether they cut or not, you'd better cut your prices. Reply from the president: But if I don't cut my prices, they won't cut theirs, and we are all better off. That's your evidence. Do you win?
05-1126 +++$+++ 34787 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would depend on the vehicle --
05-1126 +++$+++ 34788 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There is no depend. That's the evidence. Do you win?
05-1126 +++$+++ 34789 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If that's the evidence, I think I win.
05-1126 +++$+++ 34790 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. And you cite Matsushita for that?
05-1126 +++$+++ 34791 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. For that I would cite Judge Posner's decision.
05-1126 +++$+++ 34792 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you're right, then I guess we could engage in this major restructuring of the economy, and if that's the law, I'm surprised they haven't done it, but maybe they have just been recalcitrant.
05-1126 +++$+++ 34793 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there's no major restructuring of the --
05-1126 +++$+++ 34794 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, because we have concentrated industries throughout the economy, I guess, or at least we used to, and I suppose that that's a perfectly valid way of reasoning for an executive in such a company, at least they teach that at the schools of government, and people who aren't really experienced in these things, but --
05-1126 +++$+++ 34795 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the way Judge Posner explains it in High Fructose is to say that it is possible to have an agreement without a moment where there's a statement of agreement. The participants in a conspiracy can possibly treat what one of them does as an offer, which another one can accept by following it, to satisfy that way of showing a conspiracy.
05-1126 +++$+++ 34796 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay, fine. Now, let's forget my immediate disagreement or not. Let's say I agree with you on this. Now we have our example right in mind. What other than the parallel to my example could one reading this complaint think you intend to prove?
05-1126 +++$+++ 34797 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, the strongest -- plus factors that, in the absence of direct evidence of conspiracy at the outset of a case, which private plaintiffs will almost never have because people don't conspire in public parks. All a plaintiff can have is what are called plus factors under Matsushita, and the strongest of those plus factors is what has been alleged in great detail in this complaint of action against self interest. The case law recognizes that --
05-1126 +++$+++ 34798 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But how do you tell? I mean, companies get proposals all the time. Here's a way you could make more money. You could all enter the market in some foreign country. The people decide, I mean, life is short and they've got certain objectives, and they don't have to do everything that an economist might think is in their economic self interest. I mean, what is the limiting self interest to that?
05-1126 +++$+++ 34799 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This is different from that because this is a situation where when the Telecommunications Act was passed in 1996, Congress expected that the ILECs would compete in one another's territories as CLECs. The defendants pledged that they would compete in one another's territories at ILECs. They then for years in Congress complained that the CLECs who were trying to compete with them were given an unfair advantage in the terms and conditions on which they were permitted to --
05-1126 +++$+++ 34800 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it an adequate response for the executive to say, I'm a little risk averse, I want to see how things work out over the next five years. They keep changing the laws, the regulatory environment. That's why I didn't jump in and compete?
05-1126 +++$+++ 34801 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If they can prove that that's the reason why they didn't jump in and compete, then they have a nonconspiratorial reason for what they did.
05-1126 +++$+++ 34802 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if they don't do that, is it your argument that simply by behaving differently from the way Congress assumed when it passed the statute, that raises the plausible inference of violation?
05-1126 +++$+++ 34803 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Within the other facts that I was identifying, there is a strong suggestion here that competition as a CLEC would have been, in the absence of the pattern of conduct that we allege here, would have been a profitable endeavor.
05-1126 +++$+++ 34804 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. But is part of the plausibility of that inference the fact, in your argument, the fact that Congress assumed that would happen?
05-1126 +++$+++ 34805 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's one factor that I point to among several to --
05-1126 +++$+++ 34806 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I mean, the congressional assumption is part of your case, in other words?
05-1126 +++$+++ 34807 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is.
05-1126 +++$+++ 34808 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-1126 +++$+++ 34809 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that along with other factors such as the constant complaints to Congress about how CLECs had the better side of the deal than the ILECs, along with the pledges of the defendants that they would do, and that they didn't do.
05-1126 +++$+++ 34810 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I used to work in the field of telecommunications and if the criterion is that happens which Congress expected to happen when it passed its law, your case is very weak.
05-1126 +++$+++ 34811 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, that -- I certainly don't expect that that is the evidence that we would be relying on at trial or at summary judgment to support our case, but in our motion to dismiss we don't have to have the evidence to support our case.
05-1126 +++$+++ 34812 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you need what is called the plus factor, and I gather that you acknowledge that if I disagree with you that this, this parallel action seemed to be against the self interest of the companies, you no longer have a plus factor and you would lose.
05-1126 +++$+++ 34813 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that the Court, if the Court comes to a conclusion on its own that the facts that we have alleged, which is that it would have been in their interest to do this in the absence of conspiracy, is wrong, then the Court is not following conventional pleading standards.
05-1126 +++$+++ 34814 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So all you have to do to prove, to establish a plus factor is to say in your pleading, and there is a plus factor?
05-1126 +++$+++ 34815 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you have to say what it is.
05-1126 +++$+++ 34816 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You have to say what it is, that's all, and even if it's implausible?
05-1126 +++$+++ 34817 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if it's implausible, that might be a different consideration.
05-1126 +++$+++ 34818 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Richards, didn't the Second Circuit say you don't need a plus factor? They said if you did, we think that the plaintiffs could show it, but the second sentence is you don't need a plus factor.
05-1126 +++$+++ 34819 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
05-1126 +++$+++ 34820 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And that can be wrong or right, but the Second Circuit was very clear that Rule 8 wants a plain statement of the claim and no plus factor.
05-1126 +++$+++ 34821 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree with that, Your Honor, and my contention as to what the law is is that we are not required to plead plus factors. But the fact remains that we have, and that our factual pleading of plus factors has to be treated as true for purposes of a --
05-1126 +++$+++ 34822 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What if you pled more than you had to, and it's clear from what you pled that you were drawing an implausible inference? Can't the complaint then be dismissed for failure to state a claim?
05-1126 +++$+++ 34823 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't believe that it can be if -- because the Court is not, the correct function of the Court under a Rule 12(b)(6) motion is not to be decided by whether it believes or is persuaded by the allegations in the complaint.
05-1126 +++$+++ 34824 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let's take the Form 9 where you take the form complaint for an automobile accident, and suppose what it says is, I was injured in an automobile accident at a particular place in time. I was hit by a compact car with Massachusetts plates. The defendant owns the compact car with Massachusetts plates. That's the complaint. The Court can't dismiss that for failure to state a claim when it's apparent from the face of the claim that you're, that the basis for suing the defendant is a totally implausible inference?
05-1126 +++$+++ 34825 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if the allegation is also made that the defendant was negligent, then I think it clearly satisfies the pleading standard under Form 9. I think it would be a more detailed complaint than the sample that comprises Form 9 of the rules.
05-1126 +++$+++ 34826 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even if it reveals that the only basis for identifying this person as the defendant is the fact that the person has a Massachusetts license plate and a compact car?
05-1126 +++$+++ 34827 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, because that's more than nothing, and the rule in Form 9 contains nothing.
05-1126 +++$+++ 34828 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it contains a time and a place. It's quite specific that there was an accident and that defendant, defendant of a certain name at a certain time and place negligently drove. What it doesn't tell you is the details of the, of what was negligent, but it certainly is specific in time and place and person, which is one of the -- one of the concerns, I mean, if you strip away everything, it seems that you have a suspicion that there may have been a conspiracy and you want to use a discovery process to find out whether or not that's true. Isn't that essentially what this complaint is?
05-1126 +++$+++ 34829 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is the situation that any plaintiff is going to be in in a horizontal conspiracy case in the sense that we don't know for certain that there was a conspiracy. We have observed market facts which are suggestive of a conspiracy and we allege that there was a conspiracy. Now under conventional standards, all we would have to do is allege that there was a conspiracy and say what it was. We wouldn't have to plead a basis to infer that we are correct or incorrect because that's not the analysis that Rule 12(b)(6) --
05-1126 +++$+++ 34830 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you don't think you have to prove that either? I mean, you don't think you have to prove anything more than what you've alleged in the complaint about the background context, the parallel conduct?
05-1126 +++$+++ 34831 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the Court -- if we were to prove to the satisfaction of the finder of fact that the conduct we have pointed to here was or would have been contrary to the interests of the defendants in the absence of a conspiracy, we were to prove that as distinguished from pleading, we would satisfy Matsushita. Now at that stage in the case, it's inconceivable that there won't be all kinds of other memos and, you know, real world things that will shed light on why the defendants internally think they did this.
05-1126 +++$+++ 34832 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How much money do you think it would have cost the defendants by then to assemble all of the documents that you're going to be interested in looking at? How many buildings will have to be rented to store those documents and how many years will be expended in, in gathering all the materials?
05-1126 +++$+++ 34833 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, to address that concern, which we share, because we don't gain anything with Matsushita. At the end of the road in the case, we don't gain anything by pursuing a case for years in an unnecessarily burdensome way if we are not sure that it's going to prevail. So we proposed in this case a phased discovery process, pursuant to which you would first have discovery into conspiracy, and then the Court would have an early opportunity for a Matsushita motion and we either carry the day at that point or we don't. That's discovery.
05-1126 +++$+++ 34834 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ At what point does it get characterized as a class action, before this discovery or after?
05-1126 +++$+++ 34835 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's at the Court's discretion when to entertain the motion for class certification. In this particular case the defendants, a couple of the defendants proposed that we include in that phased discovery proposal class certification as an additional subject of that first phase of discovery, and we would be amenable to that as a compromise. But the point, getting back to Justice Scalia's point, that discovery as to whether there was a conspiracy in this case in order to satisfy that first phased analysis, would not need to be terribly burdensome and wouldn't necessarily be more burdensome than all kinds of other cases. It's really a very targeted issue. I think it's actually an appropriate way to deal with cases of this kind and it's actually a way that the Court has proposed dealing with similar issues in the past in the Anderson versus Creighton case.
05-1126 +++$+++ 34836 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, how would it be focused if you're talking about whether it's in their economic interest? You would have to say why, why didn't you enter into this particular realm of competition and they would say, well because we were doing other things. We had other areas that we were focusing on. And they would have to document all that to your satisfaction.
05-1126 +++$+++ 34837 +++$+++ TRUE +++$+++ MR. RICHARDS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We'd -- we would ask for production of documents reflecting their thinking process about entering into one another's territories. And that would be very enlightening. And after we get those documents we would have a much clearer idea and be able to share with the Court a much clearer idea of the entire picture of a kind that we can't have at the 12(b)(6) stage. Thank you.
05-1126 +++$+++ 34838 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you Mr. Richard, Mr. Kellogg, you have four minutes remaining.
05-1126 +++$+++ 34840 +++$+++ FALSE +++$+++ MR. KELLOGG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. Your Honor. I have three quick points that I would like to make. First following up on Justice Ginsburg's point, the private plaintiffs do not have an authority to issue purely investigative complaints. The Department of Justice of course can issue civil investigative demands, but for private plaintiffs the price of admission even to discovery, particularly to the sort of massive discovery at issue here, is to establish some basis for thinking the plaintiff -- the defendants have done something wrong. In that regard, in the Trinko case, the plaintiffs there specifically alleged that the defendants were engaged in actions against self interest by not cooperating with new entrants. And what the Court did is it went behind that mere allegation, looked at the complaint, looked at facts concerning the industry, looked at the statute, regulatory rulings and said that's ridiculous. Of course it is in the self interest of the incumbents to not go out of their way to cooperate with new entrants to allow them to take business away. Now the flip side, the second half of the conspiracy that the plaintiffs alleged here is our failure to enter new markets. And it's important to recognize that they are suggesting we should have relied upon a regulatory regime that we were successfully challenging in the courts. We got it struck down three separate times, and it was simply not a viable business opportunity in light of those facts and there is no reason to suggest that it was anything but in the self interest of the defendants to decline to enter these markets. Even conscious parallelism is not sufficient to state a claim under the antitrust laws. And at best, that is what we have here, and as a consequence they failed to state a claim. If the Court has further questions? I have nothing further.
05-1126 +++$+++ 34841 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Kellogg. The case is submitted.
05-11284 +++$+++ 34845 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument next in 05-11284, Abdul-Kabir vs. Quarterman, and 05-11287, Brewer versus Quarterman. Mr. Owen.
05-11284 +++$+++ 34847 +++$+++ FALSE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: When this Court granted review in mid October in these consolidated cases, the cases exemplified the Fifth Circuit's settled approach to reviewing claims of error under this Court's 1989 decision in Penry v. Lynaugh. In both cases the court below failed to take seriously the requirement that capital jurors have a meaningful basis for giving effect to the relevant mitigating qualities of a defendant's evidence, and in both cases the court below found as a factual matter, both against common sense and this Court's holdings, that reasonable jurors would regard evidence that a defendant had experienced significant mistreatment or abuse as a child or had mental impairments as an adult as reasons to find him less dangerous rather than more dangerous. But those opinions, however incorrect, no longer represent the Fifth Circuit's view of Penry. In mid December the Fifth Circuit decided in its en banc decision in Nelson vs. Quarterman to take a sharp turn away from its prior treatment of Penry claims and to follow instead this Court's guidance in Tennard and Smith. Under such circumstances, where the assumption that we imagine underlay this Court's decision to grant review in this case has been so profoundly changed by an intervening decision of the court below, we respectfully suggested by motion that the Court return these cases, vacate the judgments, return them to the Fifth Circuit for further consideration in light of the new opinion in Nelson.
05-11284 +++$+++ 34848 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why, when we are told that, that the State will surely challenge Nelson in this Court, and we already have the issue before us, so all that you would achieve is delay, just substituting the Nelson case for this one?
05-11284 +++$+++ 34849 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe, Your Honor, that, that all that would be accomplished by that would be certainly not just delay. I think that if the Court chooses to wait for the State's cert petition in Nelson, the Court could certainly put our cases aside and hold them awaiting Nelson -- Nelson's cert petition should be filed by mid March -- and then could make its judgment about whether to grant cert in Nelson or not. If it granted cert in Nelson it could decide the three cases together; if it found Nelson raised no questions that were worthy of review, it could either proceed to decide these cases or send them back to the Fifth Circuit. I think that the State's decision, though, Your Honor, is based on a, a misreading of Nelson. I think that the State has suggested to the Court that Nelson is in the State's phrase a narrow fact-based decision and I think that's not, I think that's not a fair characterization of the Nelson --
05-11284 +++$+++ 34850 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why can't we just read Nelson and then say in these cases whether or not it's correct?
05-11284 +++$+++ 34851 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the main reason, Your Honor, is that these cases aren't Nelson, and that Nelson if it presents issues that are worthy of the Court's consideration, that would be the better vehicle, rather than trying to use in effect these cases to decide issues that are presented by a different set of facts.
05-11284 +++$+++ 34852 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If these cases aren't Nelson that's a reason why we should decide these cases; it seems to me.
05-11284 +++$+++ 34853 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I am, I am confident that if the Court chooses to proceed on the merits of this case that we will prevail on the merits, until it finds --
05-11284 +++$+++ 34854 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why don't you try to convince us of that?
05-11284 +++$+++ 34855 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Then let me turn, let me turn to our, our merits, Your Honor. The issue before the Court in this case as we said is whether the jury instructions gave the jurors a meaningful basis for considering the relevant mitigating qualities of these two Defendants' mitigating evidence. In Mr. Brewer's case that included the fact that he was hospitalized for treatment for a major episode of depression about three months before the murder, and the fact that the evidence indicated he had suffered serious abuse, serious physical and emotional abuse from his father as a teenager. In Mr. Cole's case the evidence indicated that as a result of neglect and deprivation that he suffered as a child, he had himself emotional problems, fragmented personality, chronic depression, enormous need for nurturance, a lot of emotional turmoil and problems that continued into adulthood. And in addition to that, the expert who testified at Mr. Cole's trial indicated that he had been given a set of generally accepted neuropsychological tests and that on those tests he had scored below normal and on some of them very far below normal, under the fifth percentile. And as a result that he probably suffers from some sort of central nervous dysfunction which limits his impulse control. We respectfully suggest that under this Court's decision in Penry, those are all the kinds of facts about these two Defendants that could reasonably support a juror in concluding that a life sentence rather than the death penalty was an appropriate sentence. But because the jurors were never asked whether the mitigating evidence reduced the Defendant's culpability in such a way as to call for a life sentence, the resulting death sentences are unreliable. The jurors are asked only two questions as the Court well knows. But just to review, under the pre-1991 Texas statute jurors were only asked two questions: Was the crime committed deliberately and is the Defendant likely to pose a continuing threat to society? And those instructions alone as has been mentioned earlier this morning, don't mention mitigating evidence; the verdict form doesn't mention mitigating evidence; and so this Court has held repeatedly that whether that two question format satisfies the Eighth Amendment's individualized sentencing requirement is a matter of the evidence that's presented in a particular case, how it's argued to the jury, and what are the jurors told about the meaning of their instruction. And we believe that in this case, throughout the trial -- in both of these cases, excuse me -- throughout the trials the jurors were emphatically told that they were not entitled in deciding the future dangers test question to engage in any sort of broad inquiry into these Defendants' moral culpability. Instead, the prosecutors in both cases made very clear to the jurors during jury selection that in answering the future dangerousness question you must put to one side your opinion about whether the Defendant's background, for example, calls for a particular sentence and answer the question solely on, as the prosecutor put it, the basis of the facts. And we feel that the evidence in this case very strongly would have supported the inference that these, both of these Defendants were likely to be dangerous --
05-11284 +++$+++ 34856 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How would you compare that evidence with the evidence in Penry itself?
05-11284 +++$+++ 34857 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think, Your Honor --
05-11284 +++$+++ 34858 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ These are closer cases than Penry, I think. You'd have to concede that, wouldn't you?
05-11284 +++$+++ 34859 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think they are different cases, Your Honor, I'm not willing to concede that they are closer cases. I think that in, in the juror's mind, the only conclusion that could be drawn from the evidence in these cases is that the Defendants are likely to be dangerous in the future. That is exactly the same conclusion that would have been compelled by the evidence in Penry. I think that --
05-11284 +++$+++ 34860 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How does that, if the evidence, suppose we think the evidence is weaker, it's still evidence of childhood abuse and mental disorder of some kind, and those are relevant mitigating factors.
05-11284 +++$+++ 34861 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. Absolutely, Your Honor,.
05-11284 +++$+++ 34862 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you -- if your case is less strong than maybe the jury will decide it the other way. But it doesn't mean that those factors are not mitigating factors.
05-11284 +++$+++ 34863 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I couldn't agree more, Your Honor. I think it's very clearly settled by Tennard and other cases going back to 1976 that facts like a deprived or abused background or mental impairment are certainly mitigating. And with further response to your --
05-11284 +++$+++ 34864 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Tennard, Tennard was decided after the State decision here, wasn't it?
05-11284 +++$+++ 34865 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court's decision in Tennard postdates the State court decisions in both of these cases. Yes, Your Honor.
05-11284 +++$+++ 34866 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And where is -- this is an AEDPA case, isn't it?
05-11284 +++$+++ 34867 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-11284 +++$+++ 34868 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So we're, we're asking whether this State court made an unreasonable decision at the time, and at the time regardless of what the Fifth Circuit has now said, at the time under Johnson, and -- and there is another earlier case, we said that you didn't have to give full mitigating effects; as long as there was some manner in which mitigating effect could be given that was enough.
05-11284 +++$+++ 34869 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Court has been consistent --
05-11284 +++$+++ 34870 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So I think Tennard is utterly irrelevant even if it is right.
05-11284 +++$+++ 34871 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I, I -- I don't agree. And here's why, Your Honor. Tennard was itself both a habeas case and a case governed by the antiterrorism act, like these two cases. And so in Tennard the Court was called on to decide not squarely the question of whether the State court decision in that case had been objectively unreasonable, but whether a reasonable jurist could have found it to be objectively unreasonable such that a certificate of appealability was warranted. Mr. Tennard's case was decided by the State court in 1997, so I think it is immanent in this Court's ruling in Tennard that at least as of 1997, it was apparent that a, a low IQ score alone implicated the concerns of Penry.
05-11284 +++$+++ 34872 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Did Tennard purport to overrule Smith, even when it came down? It simply, it simply quoted language of the Justice O'Connor's concurrence in an earlier case. It certainly didn't purport to overrule Smith?
05-11284 +++$+++ 34873 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I, I see where Your Honor is --
05-11284 +++$+++ 34874 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm sorry, Johnson, not Smith.
05-11284 +++$+++ 34875 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. And I, and I -- no, it didn't purport to overrule Johnson. And the reason why is this: I think the concept that ties this Court's cases together on Penry is this concept of meaningful consideration. Because Your Honor focused on one bit of language from Johnson: the jury has to be able to give some effect. Elsewhere in the Johnson opinion the Court said there has to be a meaningful basis for giving effect to the relevant mitigating qualities of the evidence. And I think neither of those two phrases can be read out of the context of the other. In other words, it can't just be some imaginable, conceivable, strained effect. It has to be some effect which speaks sensibly to the way that a juror would -- would understand the evidence to relate to future dangerousness. In the Johnson case, the defendant's evidence was his chronological youth, and I believe that it was, it is sensible for the Court to find that a reasonable juror could conclude that, that its relevance to culpability and its relevance to future dangerousness are essentially coextensive. This case is not like that.
05-11284 +++$+++ 34876 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In Brewer --
05-11284 +++$+++ 34877 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, in Johnson wasn't there also --
05-11284 +++$+++ 34878 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Go ahead.
05-11284 +++$+++ 34879 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Wasn't there also mitigating evidence about a troubled, about his troubled youth, which is analogous to what was involved at least -- well in both of these cases?
05-11284 +++$+++ 34880 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Very little such evidence, Your Honor, in Mr. Johnson's case. And in that case moreover this Court's question presented, the question on which it granted review, was limited to the question of age, so this Court didn't reach or decide in Johnson the question of whether the other facts about Johnson's background that found their way before the jury might have been within the jurors' effective reach. And I do think that the specific evidence in Johnson again was argued as a basis for a finding of nondangerousness, of rehabilitatability. That's utterly untrue of evidence in Mr. Brewer's case and Mr. Cole's case, where I think it's very clear that the evidence is being offered to provide some kind of explanation for the jurors about what caused these men to commit these terrible crimes, not that --
05-11284 +++$+++ 34881 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But in, in Brewer's case, it's, quoting the record, evidence of one hospitalization for a single episode of nonpsychotic major depression. So it was certainly opened for a jury to determine that as mitigating and not aggravating in assessing the likelihood that there was going to be further violent behavior.
05-11284 +++$+++ 34882 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think, Your Honor --
05-11284 +++$+++ 34883 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Quite a bit different than Penry.
05-11284 +++$+++ 34884 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that you can separate the diagnosis of depression, that, even that one single episode of hospitalization for depression, from what the jury knew about Mr. Brewer's upbringing, from the fact that they knew he had been hit by his father in the terms of, his mother said, numerous times. He was struck with the butt of a pistol, he was hit with a flashlight, he was hit with a stick of firewood. His father told him if you ever raise your hand to me you better kill me, because I'll kill you. He saw his father bloody his mother, and bruise her eyes, throw chairs at her.
05-11284 +++$+++ 34885 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And your submission -- your submission is that every juror is, or a reasonable juror is going to look at that, and the only conclusion that they are going to draw is that he is more likely to be violent in the future? As opposed to the conclusion that there is mitigating evidence because of this, that he should -- mercy should be shown to him in light of all of this? And I just don't see how you can speculate which way the jury is going to go.
05-11284 +++$+++ 34886 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that it's not simply speculation, Your Honor, I think this Court recognized in Tennard as it did in Penry, that when there is evidence of mental impairment before the jury, there is at least the probable inference of dangerousness. The amici before the court, both the American Academy of Child and Adolescent Psychiatry, on the one hand, the Child Welfare League of America, on the other, their amicus briefs I think really -- really detailed the fact that this is a commonplace understanding in our society. And the reason that we know that, Your Honor, is what the prosecutor said in his closing argument, where he said to the jury if you take a puppy and you beat that puppy, then he is going to bite and he is going to bite as long as he lives. There is nothing you can do to change that. I think that where you have --
05-11284 +++$+++ 34887 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So that was in, in Brewer. Now --
05-11284 +++$+++ 34888 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-11284 +++$+++ 34889 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- there was no reliance or no similar statement by the prosecutor in Abdul-Kabir or Mr. Cole's case.
05-11284 +++$+++ 34890 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There was no similar --
05-11284 +++$+++ 34891 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So do we have different results in these two consolidated cases?
05-11284 +++$+++ 34892 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. I think that this Court's case in -- decision in Tennard, when it's talking about the inference of probable future dangerousness, this Court says: The jurors might well have believed that Mr. Tennard would be dangerous in the future, both as an inference to be drawn from the evidence and because the prosecutor expressly told them that's how they ought to regard the evidence. And in this case we have the prosecutor, in Mr. Brewer's case we have the prosecutor expressly telling the jury, just as the prosecutor did in Mr. Tennard's case, what is mitigating about the guy's background --
05-11284 +++$+++ 34893 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So the, so the -- but my point is the absence of a similar prosecutorial statement in the Cole case cuts against you.
05-11284 +++$+++ 34894 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It simply doesn't cut as far in favor of us, Your Honor. The fact that in Tennard this Court said that from mental impairment, a probable inference of dangerousness may be drawn, cuts squarely in our favor. And you don't even have to go to the level of inference. In Mr. Cole's case his expert witnesses said that the background experiences that this young man had make him dangerous. And they, they could not forecast exactly how long it might be before he would conceivably age out of that. But they said is it 10 years? It could be 15 years, it could be 20 years. I mean, there is just -- that doesn't give a reasonable juror, as -- if all you ask the juror is, after they have heard that evidence is, is there a probability that this guy is going to be dangerous in the future? I think they would be compelled to say yes, even though they might say, if they were broadly instructed --
05-11284 +++$+++ 34895 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where is evidence of abatement in that case that was before the jury? So that if you ask them, was it this person's fault in some moral sense, that might affect whether they wish to show mercy? And if you ask them whether he is going to grow out of it, they may well say, it was not his fault because of this brain disorder and he is going to grow out of it and that was the evidence, and so we are not going to sentence him to death.
05-11284 +++$+++ 34896 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that it's not unconceivable that a juror could have reasoned in that fashion. But I think it's not reasonably possible. I think that this Court's decisions in Penry and Tennard suggest that a juror's commonsensical response to evidence that a defendant has, presently poses a grave danger as a result of his life experiences and the enduring impacts that they have left upon him, the reasonable response of a juror shown such evidence is to find future dangerousness, and that that is precisely the problem with the pre-1991 Texas sentencing statute. If we had a broad mitigating evidence issue like the one that's presently given to Texas juries then we could all be confident that the jury had engaged in precisely the reasoning that the Court -- that the Court is hypothesizing. That they looked at the evidence and said yes, he's dangerous, but he's also deserving of something less than death so we will accomplish that by answering this issue in a certain way.
05-11284 +++$+++ 34897 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But in Penry we didn't establish a per se rule. We said it depends upon the evidence. It depends upon the instructions. It depends upon what the prosecutors say. It seems to me that you're arguing for an absolute rule.
05-11284 +++$+++ 34898 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't -- no, Your Honor, and don't let me, please don't let me be misunderstood. I do not believe that this is a per se rule. I think Johnson stands with our case. I think that Graham stands with our case. I think there's no -- there's no need for the Court to -- to change anything other than to -- and it doesn't have to change anything about its existing approach to Penry for our clients to prevail. Because I think that if the Court looks at this evidence and concludes that a reasonable juror approaching this, there's no reasonable probability that they would have felt constrained to find him to be a future danger, then we lose. But I don't think you can look at this record and see that.
05-11284 +++$+++ 34899 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it's not no reasonable probability, that's not the standard. The standard under Smith is whether the juries can consider this mitigating evidence in some manner.
05-11284 +++$+++ 34900 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think, Your Honor, that again, removing that language from Smith, from the language in -- if you're talking about Johnson, I know you're referring to Johnson, that the language in Johnson about some effect can't be separated from the language about meaningful effect.
05-11284 +++$+++ 34901 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's absolutely one step removed from that.
05-11284 +++$+++ 34902 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, Your Honor?
05-11284 +++$+++ 34903 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I say the actual question is even one step removed. It's whether it is unreasonable to conclude otherwise than what you conclude, which is wrong.
05-11284 +++$+++ 34904 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. And I think --
05-11284 +++$+++ 34905 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But unreasonable.
05-11284 +++$+++ 34906 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, and I think that it is unreasonable. I think the State court in this case had essentially two lines of authority, that it was trying to decide which one controlled this case. It had Penry which involved evidence of mental impairment and child abuse, and it had Johnson and Graham which involved evidence of youth and other background. And I think that the facts of these cases, given the facts of these two cases, it is objectively unreasonable to say they fit over here with Johnson and Graham rather than they fit over here with Penry. And that's why I think the decisions by the State courts are not just wrong, but objectively unreasonable. If the court has no further questions, I will reserve the remainder of my time.
05-11284 +++$+++ 34907 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Owen. Mr. Marshall.
05-11284 +++$+++ 34909 +++$+++ FALSE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice and may it please the Court: When the State court considered these Penry claims in 1994, 1999 and January 2001, this Court's decisions in Graham and Johnson made it clear that the Eighth Amendment requires only that a jury be only able to consider mitigating evidence in some manner, not in every conceivable manner. This is because virtually any mitigating evidence may be viewed as relevant to moral culpability apart from its relevance to these Texas special issues. Cole and Brewer with sizzling bright IQ scores of 121 and 115, dysfunctional childhoods and depression, are much more like the troubled childhood and youth evidence in Graham and Johnson than the mental retardation, brain damage and severe child abuse evidence in Penry. Equating these facts to Penry --
05-11284 +++$+++ 34910 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's the same kind of evidence. It may be weaker. In other words, it's not evidence of good deeds in the community. It's two specific kinds of evidence, the very kinds of evidence that were involved in Penry. You can argue about whether this was weaker, but it's certainly different from youth and reputation for good character.
05-11284 +++$+++ 34911 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I disagree, Your Honor. In Graham in particular, the Court was not just considering youth, the Court was considering a troubled childhood, a difficult childhood in which Graham's mother had been hospitalized with a mental illness, his custody shifted from relative to relative. That's exactly the same kind of evidence we have in Cole.
05-11284 +++$+++ 34912 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the evidence was that he didn't react hostilely, he didn't do bad deeds. On the contrary, he was gentle, kind, God fearing, and that's why the jury should regard the murder as aberrational. That was the Graham picture, whereas here we're dealing with people who are dangerous.
05-11284 +++$+++ 34913 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, that's not the way counsel argued it to the jury in either case. In both of these cases defense counsel presented his case to the jury during -- through his evidence and his argument, that this was youthful indiscretion or it was an aberration, and it wouldn't happen again, which is exactly what Graham --
05-11284 +++$+++ 34914 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What other choice does defense counsel have, given that the jury is going to get a question, is this man likely to be a danger in the future? What else could counsel argue?
05-11284 +++$+++ 34915 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Ginsburg, that's not the question before the Court. The question before the Court is whether the Eighth Amendment was violated and whether the jury had a reasonable opportunity, and in --
05-11284 +++$+++ 34916 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. Well, maybe sending counsel into those two questions, what violates the Eighth Amendment instead of doing what Texas now does and say jury mitigating evidence is for you to judge. We're not going to bottle it up inside of two special questions.
05-11284 +++$+++ 34917 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Respectfully, Justice Ginsburg, that's not the question before the Court, though. We're trying to determine in this case whether the State courts unreasonably determined that these juries had a fair opportunity to consider that evidence. And I think looking at argument, when we're determining the reasonableness of that decision, looking at counsel's argument is all we have to go on in determining whether the jury had a fair shot. Now I think if you look back at the '90s --
05-11284 +++$+++ 34918 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But realistically, a defense counsel who knows that the jury is going to have those two questions, he's got to fit his argument to the jury into those questions.
05-11284 +++$+++ 34919 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that was a strategic choice, though. This is not a Sixth Amendment claim. We're looking at the Eighth Amendment now. And so what counsel chose to do is not the question. We're looking at what he did, and we've got this record to work with.
05-11284 +++$+++ 34920 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're looking at what Texas law forced him to do.
05-11284 +++$+++ 34921 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that's the issue before the Court, Your Honor. I think what we're looking at is whether he -- the jury had a fair opportunity here, regardless of what counsel chose not to do or what the statute forced him to do. The fact is when the State courts looked at these claims in 1994 and 1999, this evidence was much more like Graham than it was like Penry, and it was reasonable for them to decide that there was no Penry error in these cases because of that fact. And I think it's worth mentioning that if that's not the case, then I think we've arrived at the point where Penry has swallowed the rule announced in Jurek 31 years ago and it -- to which it was only supposed to be an exception.
05-11284 +++$+++ 34922 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Jurek was a facial challenge, and the Court said no, on its face we can see that there are things that would fit into it. Good character would fit into it. But Jurek said as applied, we're not certainly not ruling on that. All we're saying is it doesn't fall on its face, and then as cases come up the law is filled out. But Jurek doesn't say -- Jurek didn't say across the board, it's enough that there are these two special factors, that everything can be squeezed into them, all mitigating evidence one way or another can be squeezed into them.
05-11284 +++$+++ 34923 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct, Your Honor. Jurek was a facial challenge. But in Johnson and Graham the Court made it pretty clear, I think, that as long as the evidence is relevant in some way within those special issues, some mitigating way --
05-11284 +++$+++ 34924 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought in Johnson the only question presented was age.
05-11284 +++$+++ 34925 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In Johnson, Your Honor?
05-11284 +++$+++ 34926 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-11284 +++$+++ 34927 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Youth was the central point of Johnson, but Graham involved youth and a distinctly troubled childhood, much like we have in these cases. And so if that evidence was relevant within future dangerousness and did not amount to Eighth Amendment error, then this evidence has to be just as relevant. And in fact we have another layer of analysis on top of this because we are looking at the State court's decision under AEDPA.
05-11284 +++$+++ 34928 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't see how this fits in the Graham package. The Graham is, this child came from a deprived background but managed to survive it, and he fits right into the category, he's not dangerous. Look at all the bad things that were done to him. He turns out not to be dangerous. Apart from this one murder, he's been a good boy. That's not the picture in either of these cases.
05-11284 +++$+++ 34929 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's essentially the picture, Justice Ginsburg, in Brewer. That's exactly the way counsel presented it to the jury. But not only did counsel argue that he wasn't going to be dangerous despite his childhood shortcomings, there was a deliberateness definition submitted in the Brewer case, which is what this Court suggested in Penry in 1989 might remedy this problem. And so the court submitted a definition of deliberateness and counsel argued it to the jury, that -- the definition was read to the jury, counsel argued --
05-11284 +++$+++ 34930 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where is that charge?
05-11284 +++$+++ 34931 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It appears at page 90 of the joint appendix, Your Honor, and that's the Brewer joint appendix. Now counsel read that definition to the jury, and the definition reads as follows: "A manner of doing an act characterized by or resulting from careful and thorough consideration characterized by awareness of the consequences, willful, slow, unhurried and steady, as though allowing time for a decision." Now counsel read that definition to the jury during his closing argument. He argued that Brewer's crime reflected poor planning and execution, that he was led into it by other actors, by his girlfriend Christy Nystrom, and that his commitment to a mental hospital and his mental illness, depression in this case, were argued specifically as cause for those faults. And so counsel related the evidence within that deliberateness instruction to the jury, and that provided them with a significant vehicle to give effect to this evidence.
05-11284 +++$+++ 34932 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that what the Penry Court was talking about, something like what you just read?
05-11284 +++$+++ 34933 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think so, Your Honor, and the Penry Court was not specific about what that definition should say, but this is certainly helpful to the jury in this case and in taking account some of this evidence that was before it.
05-11284 +++$+++ 34934 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you see, in Johnson the Court was confronted with the special issues and it makes the assumption based on the State's representation there, that the special issues had enough latitude for a jury to fully consider this. What has happened in these cases is that the prosecutors tell the jury, they keep reminding the jury you just must answer special issues one and two as given. And in the Cole case they say, even though you felt maybe he had had a rough time as a kid, you still must put that out of the mind, of your mind, and just go by the special issues. And that's the concern in these cases.
05-11284 +++$+++ 34935 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That may be a concern, Justice Kennedy, but the Cole case provides a particular example of how defense counsel countered that argument. 75 percent of his argument, which is between pages 141 and 144 of the Cole joint appendix, 75 percent of that argument is that Cole will burn out as he grows older, and that's based on the testimony of his experts. And he says that burnout, that likeliness that he will not be dangerous is a reasonable one.
05-11284 +++$+++ 34936 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's because the issues confined him to that.
05-11284 +++$+++ 34937 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor, but that's a legitimate argument on the evidence here, and I think that it would be, it's difficult in my mind anyway to determine that the State court in reading Graham and Johnson could unreasonably determine that that wasn't a good vehicle for the jury when he said, you have a reasonable doubt about this man's dangerousness because of the testimony that we presented to you from his experts that said he wouldn't be dangerous in the future.
05-11284 +++$+++ 34938 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He's 30 years old, and the testimony is 40, 50. It says, jury, for 10 years this man is going to be walking in prison corridors and he's going to be a danger for at least 10 years. And that's an effective --
05-11284 +++$+++ 34939 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, that's easily as effective as the -- as youth was in Graham and Johnson. Youth is evidence that -- I mean, we don't know how long it takes people to grow out of youth, but certainly 10 years wouldn't be unreasonable under the circumstances in that case. And so I don't see any difference between youth and burnout in this context. We are talking about a finite amount of time, we don't know exactly what that amount of time is, but it's certainly reasonable for a jury to give mitigating effect to it under that question.
05-11284 +++$+++ 34940 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Marshall, I heard what you read from this charge, and I don't have the exact words of what the Court was talking about in Penry, but it did say a special instruction that would enable the jury who believed Penry committed the crime deliberately, that he committed it deliberately, not slowly, whatever you just read, but also believed that his background and diminished mental capacity diminished his moral culpability, making the imposition of the death sentence unwarranted. So what Penry said very clearly is yes, it's deliberate, but you give them a charge that tells them even though it was deliberate, because of his abuse, because of his retardation, he is not morally culpable to the same extent as someone who doesn't have those impairments. That's the instruction that Penry said could be given and that would be okay under the deliberateness. Quite different from the instruction you read.
05-11284 +++$+++ 34941 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's different, Your Honor, but I don't think it's that much different, and the reason is that this makes the crime a function of awareness of the consequences of slow unhurried consideration of those consequences. And then counsel argues to the jury that Brewer is uncapable of engaging in that sort of premeditation because of his mental problems, and so that's what reduces his culpability under the circumstances. And I think if you combine the argument and the definition, which we were bound to do under Boyde versus California, we're supposed to look at the entire context of the trial here, that that meets that suggestion in Penry for it. It's not exactly what the Court suggested.
05-11284 +++$+++ 34942 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wasn't there something about moral culpability in what you read?
05-11284 +++$+++ 34943 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. It's not mentioned in this definition.
05-11284 +++$+++ 34944 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's what Penry makes clear, makes the distinction, between these are factors that don't say he is that dangerous, don't say he didn't act deliberately, but they reduce or the jury may decide that they reduce his moral culpability. And that's not what this charge was?
05-11284 +++$+++ 34945 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This charge is different and you're correct in that, Justice Ginsburg. However, future dangerousness also provides that vehicle in this case, just the same as it did in Graham, and so -- and in Johnson. The Court said that this kind of evidence, the evidence of a troubled childhood, could find effect within future dangerousness in some manner. And granted we can conceive of other ways it might be relevant to culpability, but the Court explained -- and this was what the State court was working with at the time it considered this claim -- this Court explained that just because we can imagine other ways in which it might be relevant doesn't mean that we have got Eighth Amendment error. It's just important that the jury had some way of getting to it. And I don't see how this is markedly different than the evidence that the Court said fit within future dangerousness in Graham. Now, in -- I think another thing that I need to mention about Cole is, is that my colleague noted the expert testimony that Cole lacked impulse control. Now, I think the, the mitigating nature of that testimony in this case becomes especially apparent when you realize that, that Cole planned this crime 2 days in advance. He planned to strangle this 66-year-old blind man 2 days before he did it. And so I don't think that an impulse control problem mitigates his culpability for this crime in any way and I don't think any reasonable juror would ever see that. So I think that the mitigating significance of that evidence in this case is severely diminished as opposed to the testimony that the jury heard in Penry, for example, which is that he'll never learn from his mistakes, he had previously committed a rape, he didn't learn from it; this time he committed a murder and a rape. And so the mitigating relevance of that evidence was only aggravating within future dangerousness.
05-11284 +++$+++ 34946 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How do we, how does that factor in on the issues that are before us, the weakness of the mitigating evidence? In what way are we supposed to assess it? We don't have a harmless error question in these cases.
05-11284 +++$+++ 34947 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is no harmless error question, correct, Mr. Chief Justice. However, I think when we're looking at the Boyde standard, which is -- and in Johnson -- a reasonable likelihood that the jury was precluded from giving effect to the evidence, the reasonableness of that likelihood, the reasonableness of that possibility, depends upon the way the juror, the jury, heard the evidence and the relative strength of that evidence. And so evidence of intoxication, for example, while it does mitigate culpability in some manner, would not create the reasonable possibility of Eighth Amendment error in that sense.
05-11284 +++$+++ 34948 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So your argument is that the mitigating evidence was not precluded by, reasonable consideration was not precluded by the instruction; it was precluded by the fact that there wasn't much mitigating evidence to begin with?
05-11284 +++$+++ 34949 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. But in addition to all of that, the State court was looking at Penry and Graham when they decided this case and there was no Penry II yet. There was no Tennard or Smith. And so it was reasonable for them to compare the evidence, the weight of that evidence, the strength of that evidence, to those cases and decide that it fell on the Graham and Johnson side of the line rather than the Penry side of the line. That's the only thing they could do at the time.
05-11284 +++$+++ 34950 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, do you think the case should have been decided differently should it have been decided after those decisions?
05-11284 +++$+++ 34951 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Stevens, if we take into account the full effect language that gets quoted in Penry II, we might well have a different result. But that wasn't the standard at the time and under AEDPA --
05-11284 +++$+++ 34952 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But those decisions didn't purport to change the law.
05-11284 +++$+++ 34953 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, under Teague they did not purport to change the law. But I think AEDPA is a different inquiry here. We're looking at what clearly established law was at the time the State courts made their decisions and not necessarily what, you know, what the Teague inquiry would be. And so at that point I think it's pretty clear under Graham and Johnson we're looking at some effect. Whatever "full effect" means now, it doesn't apply to these cases. And I think that gets to the main point here. We're looking at an exceedingly ordinary fact pattern in a capital murder case in both of these cases: Dysfunctional childhoods, a small amount of abuse in Brewer, undescribed --
05-11284 +++$+++ 34954 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Am I correct, your position essentially is that, while it may well be true that these instructions did not permit the jury to give full effect to this mitigating evidence, that was not clearly established law at the time of these decisions?
05-11284 +++$+++ 34955 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Justice Stevens.
05-11284 +++$+++ 34956 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's your view.
05-11284 +++$+++ 34957 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Were these decisions post-Johnson.
05-11284 +++$+++ 34958 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. In fact, the Brewer case was decided the year after Johnson and the, the Cole case was decided in 1999. So the Court had not held forth on what Penry meant in a long time at that point. Graham and Johnson were the last clear statements the Court had made. Now, I want to correct one misstatement by my opposing counsel in Brewer. Brewer was -- there are three distinct episodes of abuse that appear in the record in that case: That he was struck with a pistol by his father, he was struck with his fist, and struck with a flashlight. He was never struck with a stick of firewood, and that's on page 65 of the joint appendix. That's pretty clear. This isolated abuse that occurred late in life -- we don't know the exact time frame, but it could be as late as age 18 or 19 -- surely has different characteristics in a jury's eyes than the evidence in Penry which, in which the defendant was beat and beat severely from a very young age, from his infancy, and that beating, that abuse, caused brain damage or mental retardation. The ordinary nature of this evidence in comparison to the exceptional --
05-11284 +++$+++ 34959 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you suggesting that some kind of a psychological expert would say that abuse as an adolescent is not as damaging as abuse as a young child?
05-11284 +++$+++ 34960 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not suggesting that, Your Honor. I'm just suggesting that this is a smaller amount of abuse than what was in Penry.
05-11284 +++$+++ 34961 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I guess striking a big person is not quite as bad as striking a little person.
05-11284 +++$+++ 34962 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That may be true, Your Honor.
05-11284 +++$+++ 34963 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If the question is one of the evidence was weak, why isn't that a harmless error question rather than a question of whether the jury can give it effect?
05-11284 +++$+++ 34964 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there is, there is that reasonable likelihood standard built in under Boyde.
05-11284 +++$+++ 34965 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The likelihood of?
05-11284 +++$+++ 34966 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of constitutional error.
05-11284 +++$+++ 34967 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, constitutional error is --
05-11284 +++$+++ 34968 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Is the reasonable likelihood --
05-11284 +++$+++ 34969 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-11284 +++$+++ 34970 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Reasonable likelihood that the juror was precluded from considering the relevant mitigating evidence.
05-11284 +++$+++ 34971 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. So if the evidence is very weak and if the instructions prevent you from considering it, then it's precluded. But if the evidence is very weak it didn't matter.
05-11284 +++$+++ 34972 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think it's a reasonable reading of Graham and Johnson, though, Your Honor, that weak evidence does fit within these special issues. That's what those cases held. They said the jury could consider the evidence in some manner and therefore there was no reasonable likelihood that they were precluded from doing so.
05-11284 +++$+++ 34973 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So imagine you're a juror and you think to yourself, I see all this stuff about the childhood, frankly it doesn't move me so far as his dangerousness, I think he's dangerous, and I also think he did it deliberately. And then you think to yourself, well, could I consider it because it shows a bad childhood and that is deserving of a life term? I'm not sure it shows me that, but can I consider it for that purpose at all? What's my answer under Texas law?
05-11284 +++$+++ 34974 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, the State court considering this case was looking at Graham, in which the Court Stated that that evidence fit within future dangerousness.
05-11284 +++$+++ 34975 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. I have gotten -- I've finished considering it for future dangerousness. No, it doesn't move me; he's dangerous. Now I say to myself, can I consider it for the purpose of showing a bad childhood deserving of mercy, if you like? Can I consider it for that purpose? What's the answer under State law?
05-11284 +++$+++ 34976 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-11284 +++$+++ 34977 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The answer is no.
05-11284 +++$+++ 34978 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Breyer, the answer is yes.
05-11284 +++$+++ 34979 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The answer is yes?
05-11284 +++$+++ 34980 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The answer is yes because this Court said it was yes. This Court said that in Graham the jury was free to accept counsel's suggestion that Graham's conduct was merely an aberration and that, and that he wouldn't do it again. That's exactly the way the case was argued to the jury by these two defense lawyers.
05-11284 +++$+++ 34981 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not talking about future dangerousness. I'm talking about -- I would be repeating myself. You've taken that, I'm not talking about future dangerousness. The jury's decided that matter in your favor. I'm saying does Texas law allow -- you understood what I said, didn't you?
05-11284 +++$+++ 34982 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, yes.
05-11284 +++$+++ 34983 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right, and the answer is yes, you can take it in to show mercy?
05-11284 +++$+++ 34984 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-11284 +++$+++ 34985 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what's the Texas case that says that?
05-11284 +++$+++ 34986 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, it's not a Texas case. It's this court in Graham and Johnson. This Court said that evidence of a troubled childhood, of the particular dysfunction that comes with youth, can be taken as an aberration, that the person will not repeat --
05-11284 +++$+++ 34987 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, did we say that in the case of all childhood, in cases, in every case of childhood abuse and so forth?
05-11284 +++$+++ 34988 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The question is --
05-11284 +++$+++ 34989 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or was it really applied just in the context of the Graham evidence?
05-11284 +++$+++ 34990 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, in these cases it's relevant for the same reasons it was in Graham. This evidence is not enough like Penry to warrant relief.
05-11284 +++$+++ 34991 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right. But the answer to Justice Breyer it seems to me has to be that you can only consider it in the, in the context of deliberateness or future dangerousness.
05-11284 +++$+++ 34992 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
05-11284 +++$+++ 34993 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And that depends on the nature of the evidence, I take it? I mean, if the evidence we were talking about was biological predisposition to violence, that's only going to point in one direction, right? I mean, if the evidence is isolated incident, incidents of depression, the idea is that, well, a juror might look at that and say, well, that's why he did it, and that since it was isolated it's not likely to come up again and therefore it can be regarded as mitigating as well as aggravating.
05-11284 +++$+++ 34994 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Mr. Chief Justice.
05-11284 +++$+++ 34995 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And so when you get into this evidence of child abuse, I mean, how are we supposed to decide if the evidence is sufficient so that anyone looking at it is going to say, he's only going to do it again, or if someone who's looking at it is going to say, well, there's an excuse for it and he's going to outgrow it? Do we make that determination in every case based on the particular evidence and the particular arguments that counsel made?
05-11284 +++$+++ 34996 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think there's any other way to do it, Mr. Chief Justice. This Court has continually engaged in a case-specific analysis on a case-by-case basis in these types, when granting these types of claims. If the Court has no further questions --
05-11284 +++$+++ 34997 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Unless you take the view that Penry took, which is you have to let the jury distinguish between dangerousness and deliberate conduct on the one hand and mitigation for mercy purposes that don't tie in at all to dangerousness.
05-11284 +++$+++ 34998 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's because, Justice Ginsburg, the Penry's evidence was relevant only in an aggravating way to those issues. It suggested nothing other than the fact that he would be a future danger, and when the evidence is not so aggravating, when the evidence suggests, suggests that there is a mitigating answer to the future dangerousness question, that the person won't be a future danger because they're going to burn out or because this is an isolated incident, we have a different situation.
05-11284 +++$+++ 34999 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can you tell me, if you know, how many cases in the Texas system, capital cases, are pending that were decided before the legislature amended the instruction?
05-11284 +++$+++ 35000 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, there are 47 inmates on Texas death row that were sentenced under this statute that remain there. There are nine cases which have litigated Penry claims all the way to conclusion in Federal court. There are 25 more that are somewhere in the pipeline either in State court or Federal court. I've actually looked at the cases and 17 of those cases, 17 of the 34 that are still in the system, have evidence that's almost identical to these cases.
05-11284 +++$+++ 35001 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that wasn't the question. Your question was how many were before or after the --
05-11284 +++$+++ 35002 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I take it your answer was that all these were tried before Texas amended the statute. Was it 1991 when it amended the statute?
05-11284 +++$+++ 35003 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-11284 +++$+++ 35004 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And all the cases you mentioned were tried before 1991.
05-11284 +++$+++ 35005 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. 47. 47 cases were sentenced under this pre-1991 statute. If the Court has no further questions, I'd ask that they affirm the judgment of the court below.
05-11284 +++$+++ 35006 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Marshall. You Mr. Owen, have you 12 minutes remaining.
05-11284 +++$+++ 35008 +++$+++ FALSE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd like to make two points about Graham since it's been a subject of some discussion. First is to remind the Court that Graham was a Teague case. Graham was a case about whether the law in 1984, prior to Penry -- Mr. Graham's case became final on direct appeal -- dictated the result that he was asking for, which I think doesn't mean it has no persuasive impact on these cases, but I certainly think it limits its precedential value outside the scope of the question of youth that Johnson later settled squarely. The second thing I want to say about Graham is this is the State's brief in Graham, 91-7580, and I want to just note that at page 26, squarely. This is the State's brief in Graham 917580 and I want to note at page 26, footnote 8 the State says the insubstantiality of Graham's evidence of a troubled childhood is readily apparent, which certainly suggests that there is a fair reading of the evidence in Graham of this background evidence as not being substantial, not being evidence about abuse or mistreatment. The fact that he was moved from one relative to another because of the circumstances in his family, in that case was not shown to have any negative impact on him. Whereas I think in Mr. Cole's case certainly there is expert testimony that it had a very devastating negative impact on him. So Graham really does not even give the Court much guidance on the question of troubled background because there is no indication that Graham actually had a, a background of mistreatment. By the same token with respect to the State's comment or my brother's comment that the, the record doesn't bear out that Mr. Brewer was struck by his father with a stick of firewood, that is correct. What the record actually says is, if I may quote from the Brewer JA at page 90 -- 95 -- 65, excuse me: "He tried to hit him with a stick of firewood. When he went outside to grab the firewood I --" -- that's Mr. Brewer's mother -- "slammed the front door and locked it, and he smashed the glass out of the front door with the firewood. That was the night I had him arrested."
05-11284 +++$+++ 35009 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How old was Brewer at that time?
05-11284 +++$+++ 35010 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe he was 15, Your Honor. But I also want to, I also want to emphasize that I think there, the fact is, the testimony is that Mr. Brewer was hit numerous times. That's his mom's word. Hit with objects only twice, but hit numerous times. And I don't think the Court should also underestimate the significance of the evidence that Mr. Brewer saw his father brutalize his mother on many occasions, because that evidence too contributes. It's not just the difference between being hit and watching someone else being hit. I think everyone understands that there are enduring feelings of shame and guilt, and that the teenage son feels --
05-11284 +++$+++ 35011 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the argument is that the jury hearing this evidence in light of all the instructions will only conclude that the evidence shows that he will be violent again. They will not feel that they can take it into account in any way to determine that it's a situation in which they should extend mercy, or that, I guess it was, I get the Cole and the Brewer records confused here, but that this, the cause for the violence will abate with, with age.
05-11284 +++$+++ 35012 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think, Your Honor --
05-11284 +++$+++ 35013 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Or that in, I guess in Brewer's case in particular, that since the violence was caused by a particular bout of depression, that would not necessarily recur.
05-11284 +++$+++ 35014 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I, I don't think that's -- that's not our argument, first, Your Honor, for this reason. The court's question was, as I understand it, don't we have to show there is no way the jury could have understood this evidence except as aggravating? I don't think that's, I don't think that's the test. In Tennard this Court said if the jury might well have considered the evidence as aggravating, then --
05-11284 +++$+++ 35015 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that was after -- I guess the question would be under Johnson, whether or not it could be considered in some manner.
05-11284 +++$+++ 35016 +++$+++ TRUE +++$+++ MR. OWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In some manner that is reasonable and that gives effect to the relevant mitigating qualities of the evidence. Yes, Your Honor. And I do think that the, that the fact of Mr. Brewer's -- the fact that the jury knew that he had endured this mistreatment as a teenager could only have been given aggravating effect. I don't think there is any way to reason from the premise that he was mistreated physically and emotionally by his father when he was a teenager, to the conclusion that therefore he will be less dangerous in the future. That doesn't seem to me to be a reasonable connection. And I think that what the Court was calling for in Johnson was that there be some sensible link between the proffered mitigating evidence and these narrow questions, which as has been pointed out already were the only options for the jury in this case. There was no, there was no mercy option. There was no mitigation instruction. The jury was told solely these two -- these two special issues. With respect to the Brewer argument that there was a deliberateness instruction, I think Justice Ginsburg has it exactly right in observing that in Penry, what the Court said was that to satisfy the, you know, to fix the deficit in the former Texas special issues, a definition of deliberateness would have to direct the jury's attention to the defendant's personal culpability. And I don't think this instruction does that. This instruction directs them to the sort of quantity of forethought, how much did he think about it, how long did he think about it, did he mull it over? But I don't think that that captures the moral culpability aspect that Penry says is required under the Eighth Amendment. If the Court has further questions I'm happy to entertain them. Otherwise we would ask that the Court grant our motions. In the alternative we would ask that the Court reverse the judgments in both cases with directions to reinstate the District Court's favorable judgment in Mr. Brewer's case and to grant habeas relief in Mr. Cole's case. Thank you, Your Honor.
05-11284 +++$+++ 35017 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you Mr. Owen. The case is submitted.
05-11304 +++$+++ 35021 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument first this morning in 05-11304, Smith versus Texas. Mr. Steiker.
05-11304 +++$+++ 35023 +++$+++ FALSE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: This case is here for the second time. In your summary of reversal, this Court held that Petitioner's mitigating evidence could not be given adequate consideration through the Texas special issues or the nullification instructions. On remand, the CCA found the error harmless by concluding the opposite, that Petitioner's jury could give sufficient consideration to his mitigating evidence, including specifically the evidence of his 78 IQ, learning disabilities and troubled background.
05-11304 +++$+++ 35024 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Did they find it could or did they find that it did? I thought our holding was that given the instructions, the jury would not necessarily take into account those mitigating factors, and I thought that what the Texas court held is, yes, that was a possibility, and we have to see whether that possibility came to pass, which is what harmless error analysis involves.
05-11304 +++$+++ 35025 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think, Justice Scalia, what the --
05-11304 +++$+++ 35026 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So they are not contradicting the fact that the jury wasn't required to take it into account, but they are saying nonetheless, in our view, the jury did take it into account, and therefore, the error was harmless. That doesn't contradict our opinion. I mean, you might want to argue against it on the merits, but I don't think that will contradict our opinion.
05-11304 +++$+++ 35027 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it does contradict your opinion, Justice Scalia. Your opinion said that Petitioner's mitigating evidence had little or nothing to do with the inquiries of the special issues, and your opinion also said that the nullification instruction, no matter how clearly conveyed or fully understood by the jury, would not solve that problem.
05-11304 +++$+++ 35028 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's right. And that means that the jury was not instructed to take it into account. And I think the Texas court is conceding that. But it's, it's saying, nonetheless, we don't think that the error made any difference because, in our view, the jury did take it into account.
05-11304 +++$+++ 35029 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The matter in which the CCA posited that the jury could take it into account was the fact that on voir dire, the jurors said we can follow a nullification instruction and falsify our answers to the special issues in order to give effect to mitigating evidence. That was the exact same proposition that the CCA had issued in its first opinion that this Court summarily reversed.
05-11304 +++$+++ 35030 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but it seems to me it's one thing to use it for the purpose of saying the instruction was okay. And it's something else to use it for the purpose of saying even though the instruction didn't require that, it was a fuzzy instruction and a juror could very reasonably have understood it not to allow nullification, nonetheless, we have satisfied ourselves that the jury indeed thought it had the nullification power. I don't see how it contradicts our opinion.
05-11304 +++$+++ 35031 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think what's contradictory, Your Honor, is that the notion that the nullification instruction would be an adequate vehicle was what this Court specifically rejected.
05-11304 +++$+++ 35032 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They didn't say it was an adequate vehicle. I mean, they acknowledged that that instruction shouldn't be given again because it doesn't require the jury to do what, what you say the jury must do, and I think they accept that. They say, oh, no, I thought it was fuzzy, and didn't require -- we think the jury did indeed think it had the power to nullify.
05-11304 +++$+++ 35033 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I would also add that when you actually look at the voir dire on which the CCA relied in which it said jurors express no discomfort, no hesitation about their willingness to falsify their answers to the special issues, the very first juror in this case, a lawyer, expressed exactly the kinds of discomfort that this Court feared and anticipated with the use of the nullification instruction.
05-11304 +++$+++ 35034 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, Mr. Steiker, may I interrupt you or interrupt the course of your argument to get to a more preliminary point before you get down to details? Do you concede that harmless error analysis is ever appropriate, is ever open as an option following an, in effect, a finding of this kind of instructional error, Penry I instructional error? Do you concede that?
05-11304 +++$+++ 35035 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, we do not concede that, but nor do we rely on that as a basis for relief in this case. We believe that the purported harmless error analysis that the CCA applied was so interwoven with a rejection of the Federal constitutional --
05-11304 +++$+++ 35036 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I quite agree. I understand that. Was the, was the issue of the availability of harmless error raised on your side of the case in the proceedings back in Texas?
05-11304 +++$+++ 35037 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it was. It was raised on remand from this Court.
05-11304 +++$+++ 35038 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Also on the same preliminary line of inquiry, are we in as good a position as the State court to conduct harmless error analysis, or can we or must we defer to the State court's harmless error analysis?
05-11304 +++$+++ 35039 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would say ordinarily this Court is not in as good a position as a State court to conduct harmless error analysis. Our belief here is that the, the basis for the State finding the error harmless was a very unusual rejection of the conclusion that this, these instructions would facilitate consideration of mitigating evidence.
05-11304 +++$+++ 35040 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You agree that the application of the harmless error analysis is a question of State law, though, correct?
05-11304 +++$+++ 35041 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do not agree with that. I think that the application of harmless error analysis, when it's predicated on a misunderstanding of Federal constitutional law, is not an independent basis for decision. It's clearly wrapped up in the Federal claim, and I think this Court's cases have clearly so held.
05-11304 +++$+++ 35042 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that if there is an instruction given to the jury and it violates the Constitution, then we, as a de novo matter, can determine the harmless error, harmless error inquiry?
05-11304 +++$+++ 35043 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's, it's certainly possible. I don't think that that's a usual practice and I wouldn't advocate that here. And this is not a usual case in which the State has conducted an ordinary harmless error analysis. The State has actually in no way disparaged the power and extent of Petitioner's mitigating evidence.
05-11304 +++$+++ 35044 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, is the level of harmless error determined as a matter of Federal or State law when there is a Federal law?
05-11304 +++$+++ 35045 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Generally speaking, it's a matter of State law with some limitations.
05-11304 +++$+++ 35046 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Really. You mean that they could have something that it has to be harmless beyond a reasonable doubt and we'd be bound by that?
05-11304 +++$+++ 35047 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, on direct review, Chapman clearly says it's a Federal question what the standard of review may be. And on direct review, it's undoubted that a harmless beyond a reasonable doubt standard is required by Chapman. This case doesn't present the issue on whether on State -- post-conviction, a State can have the latitude of requiring greater harm, because on the CCA's own analysis, the standard of harm that's applied on State habeas is identical to the standard of harm that's applied on direct review, the standard of Almanza, which posits Chapman error, harmless beyond a reasonable doubt for preserved error, and egregious harm for unpreserved error.
05-11304 +++$+++ 35048 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And, and this was unpreserved error. I mean, they are not saying this for everything. They are saying he did not object to the instructions at the time and therefore our harmless error standard is -- is more rigorous than it would otherwise be. What's unreasonable about that?
05-11304 +++$+++ 35049 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And we -- we argue that there are three independent bases, Federal bases for finding that the application of egregious harm in this case to be violative of Federal rights. And I'd like to turn to the first of those arguments. Petitioner plainly objected that the special issues and verdict form did not allow for consideration of his mitigating evidence. That was and remains his core argument throughout this case.
05-11304 +++$+++ 35050 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but that's a very generalized argument, and what he won on was a very specific point that, that this instruction in effect required, if they were going to give mitigating effect, required a jury nullification. That's a very specific point.
05-11304 +++$+++ 35051 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ On that --
05-11304 +++$+++ 35052 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ He did not object -- he did not object to that specific problem. Had he objected, the court would have said, you know, there is something to what you say, and I'll give a different instruction. But he didn't.
05-11304 +++$+++ 35053 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Everyone at trial understood that the special issues on the verdict form were unalterable, that Texas law required the legislature to specify what was on the special verdict form. What the trial court invited counsel to do was to offer a different form of nullification in the supplemental instruction that would then interpret the special issues. This Court's opinion in its summary reversal made plain that the problem with nullification instructions is broad and intractable and applies to all nullification instructions.
05-11304 +++$+++ 35054 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What you're going to hear in a second, I'm sure, because I read it in the briefs, my understanding of the Texas point is slightly different. It is this. That under Texas law, when you file before the, before the trial, a general objection, unless you make the objection again when the specific, when a specific instruction is given, you've forfeited your rights to appeal. Under Texas law. And they say that's true of evidence and that's true here, too. And they say that's just Texas law, ordinary Texas law. Now --
05-11304 +++$+++ 35055 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's nothing --
05-11304 +++$+++ 35056 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's what you did, you didn't make the right objection. Now you come up here and well, you are out. You can't make any argument. But -- we are very generous, and we will let even people who make every wrong procedural thing still have a shot, if what they have, if what they are pointing to absolutely egregious. But your isn't absolutely egregious so you're in the same boat as if you just didn't have any argument because you didn't follow the Texas law. Now, I take it, that's their point. What's your response?
05-11304 +++$+++ 35057 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I have special responses, Your Honor. The objection to the special verdict form and the special issues was made plain in pretrial motions and that objection was clearly recognized by the trial judge at trial and denied at trial when the instructions were being considered for the purposes of voir dire.
05-11304 +++$+++ 35058 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, you're there in a Texas court. We're not. We are following Texas law, they say, and you're wrong. Now, what are we supposed to do about that?
05-11304 +++$+++ 35059 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The court, the Court of Criminal Appeals did not invoke this basis for saying that his trial objection was inadequate. They didn't say that it was made at the wrong time, or in the wrong -- what they specifically said --
05-11304 +++$+++ 35060 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They applied, they applied a legal standard, the egregious harm standard, that depends on failure of an objection. So I would have thought they, they certainly thought that there was an inadequate objection, or they wouldn't have applied that standard.
05-11304 +++$+++ 35061 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. I -- I misspoke if I -- I conveyed the impression that they did not suggest that it was inadequate objection. I was merely suggesting that it wasn't inadequate in the sense that it was made at the wrong time, pretrial or at trial.
05-11304 +++$+++ 35062 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The judge, the judge, I thought, told the lawyers what the charge would be, and I think also said I can't give a separate charge on mitigation because that's a job that only the Texas legislature can do. I am bound by the statute to give these two things. I think the judge said that, so it was the understanding of everyone.
05-11304 +++$+++ 35063 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was the understanding of everyone. It's reflected in the record in the first State habeas opinion that the Court of Criminal Appeals acknowledges that the verdict form was sacrosanct. That was not going to be altered, so the nature of the CCA's suggested failing of Petitioner was that he did not specifically object to the nullification instruction.
05-11304 +++$+++ 35064 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It sounds like you're arguing that the Texas court misapplied Texas law, and you want us to reverse their application of their own law about what is an adequate objection.
05-11304 +++$+++ 35065 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. I believe that the CCA misunderstood the Federal law of the relationship between Penry I and Penry II. The failing in this case was a verdict form that made no mention of mitigating evidence. The nullification instruction was the State's flawed defense to that failing.
05-11304 +++$+++ 35066 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but on the issue of whether there was an adequate -- I thought you were arguing that, in fact, there was an adequate objection. And if the, if the State court held against you on that point, that's an issue of Texas law, isn't it?
05-11304 +++$+++ 35067 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think it is an issue of Texas law, Your Honor, because the basis for the finding that it was inadequate was that he had to separately object to the nullification instruction as opposed to what everyone agreed he object to, was the inadequacy of the verdict form. That was his Federal claim. And our view is that the misunderstanding of the nature of the Federal claim was what led the Texas court to conclude that his objection was inadequate. I'd also like to --
05-11304 +++$+++ 35068 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I, may I again interrupt you to just get the context of your argument? You said earlier that under Chapman, assuming there is a harmless error issue, that essentially is -- is necessarily a Federal issue. And therefore, I take it, the basis of your point here is, if that is a Federal issue, then the adequacy of actions of counsel to raise it is also a Federal issue. Is that correct?
05-11304 +++$+++ 35069 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
05-11304 +++$+++ 35070 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is my understanding --
05-11304 +++$+++ 35071 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Your Honor.
05-11304 +++$+++ 35072 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you.
05-11304 +++$+++ 35073 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd like to make it clear --
05-11304 +++$+++ 35074 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do we make up our own procedural rules, too? I mean, why, why -- why is it just a Federal judgment as to whether it adequately complied with the Texas rule? Presumably we should make up our own rule.
05-11304 +++$+++ 35075 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think you need to make up --
05-11304 +++$+++ 35076 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why not? You say it's a Federal question.
05-11304 +++$+++ 35077 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's a Federal question about what the nature of the claim is, and if the State's misunderstanding of the Federal claim was what was intertwined with its conclusion that it was an inadequate objection, that is a misunderstanding of Federal law. We also believe that the procedural, that the application --
05-11304 +++$+++ 35078 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's -- that's a little bit different from your, from your response to Justice Souter. You are making a much narrower argument. You, you don't --
05-11304 +++$+++ 35079 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe our, I believe our right to be --
05-11304 +++$+++ 35080 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You don't assert that in every case when there is a procedural objection in a capital case or any case involving Federal law, Federal law will determine whether the procedural objection is adequate?
05-11304 +++$+++ 35081 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree with that fully, Your Honor.
05-11304 +++$+++ 35082 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you do, but you do take that position with respect to a harmless error?
05-11304 +++$+++ 35083 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that the question of whether an error can be deemed harmless is always a Federal question. Chapman says as much.
05-11304 +++$+++ 35084 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. If we assume, for the sake of argument, that there is disagreement on that point, are there any cases of this Court on the matter of adequacy of State procedural bars that would support you, even on the assumption that it's a State, not a Federal issue?
05-11304 +++$+++ 35085 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, clearly Ake vs. Oklahoma holds that if the State invocation of the procedural rule is dependent on a judgment about Federal law, and that judgment is incorrect, it is not an independent basis for decision under the independent adequacy grounds.
05-11304 +++$+++ 35086 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about the case, the name of which I cannot think of, to the effect that requiring procedural action by the defendant which would simply be a useless formality and so on?
05-11304 +++$+++ 35087 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's Flowers.
05-11304 +++$+++ 35088 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's Flowers. All right. Wouldn't, wouldn't that be authority that you would invoke, in the, in the sense, as I understood your earlier argument, that the, that the pretrial motion and the adjudication of that made it plain to everybody what the, what the issue was, and therefore requiring anything more would -- would in effect violate the Flowers rule?
05-11304 +++$+++ 35089 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree with that, Justice Souter. I think that to apply the default in these circumstances where everyone was plainly aware of his concerns about the inadequacy of the verdict form in special -- and the special issues, would be imposing too high and too excessively burdensome a requirement for the preservation of the Federal right. I do also want to argue that there is a --
05-11304 +++$+++ 35090 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why is that -- just, why is that too burdensome? What's so burdensome about saying I object to that instruction?
05-11304 +++$+++ 35091 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, he did --
05-11304 +++$+++ 35092 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're saying, there is a difference between saying it would have been futile and saying it's high and burdensome, and I'm just wondering what your specific point is.
05-11304 +++$+++ 35093 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My specific point is once he has made it plain -- and this is all that Texas law itself says is required -- once he has made it plain that he objects to a special verdict form which cannot allow for the consideration of mitigating evidence, and this Court's holding is that that is precisely the error in this case, that no supplemental nullification instruction could correct, he has plainly made clear what his objection was and there was nothing else he could do.
05-11304 +++$+++ 35094 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I, may I ask this question about your position? Is it your position that they should not have applied any harmless error review, or that they applied the wrong standard? And if it's the latter, what was the standard they should have applied?
05-11304 +++$+++ 35095 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We believe it is the latter. That we are assuming that harmless error analysis could apply here without conceding that it's necessarily applied, but assuming for the purposes of this case that it does apply, it should have applied the Chapman standard, which is their standard for preserving --
05-11304 +++$+++ 35096 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It wouldn't be preserving the Chapman standard if it was Federal collateral review, would it?
05-11304 +++$+++ 35097 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. It would be under Brett. It would be a different standard. But Texas law for jury instruction claims clearly states that for preserved error, the standard is Chapman.
05-11304 +++$+++ 35098 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's preserved error on direct review, isn't it? On page 23 of their brief there's a footnote that, the red brief, that at least claims to describe the sort of the structure of Texas law, and I thought under Texas law you got a Chapman analysis only if you were on direct review and had preserved error. Is that correct?
05-11304 +++$+++ 35099 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that the CCA's position and Respondent's position is that Almanza applies dually on direct review and post conviction, and that that's that's their explanation for why the State court didn't impose a procedural default on State habeas. And one of our views is even if you don't agree that under Federal law this objection was inadequate, we believe that the State could not in effect change its mind about the adequacy of his trial objection only after this Court summarily reversed its rule on the merits. And we think there are --
05-11304 +++$+++ 35100 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but it didn't have to reach the harmless error question after it made an erroneous determination that there was no error at all. When the case came up here and the Court determined there was error, then it was necessary to reach it. I don't see that it's changing its position at all.
05-11304 +++$+++ 35101 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it is changing its position. When four judges signal that this may be a procedural impediment in the case and the court declines to embrace it, I think that is a signal to this Court that --
05-11304 +++$+++ 35102 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Wouldn't it be normal exercise of judicial restraint to say, we don't have to reach out and decide whether this error was harmless if we've already decided there's no error at all?
05-11304 +++$+++ 35103 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it would not be in the case of State habeas, for this reason. The vast overwhelming number of cases that proceed into State habeas are on their way when they're final into Federal habeas, and the State court was abandoning this argument for Federal habeas. That is, it was removing any procedural impediment to a merits review.
05-11304 +++$+++ 35104 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I just don't -- you say whenever, whenever a court decides the case on the merits instead of using an intervening procedural objection, the procedural objection is waived.
05-11304 +++$+++ 35105 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I do not make that, I do not make that broad argument, Your Honor. I think in the special circumstances of State habeas, where, as this Court knows, 99 percent of cases are on their way to Federal habeas, and the State does not adopt this procedural impediment which would from a judicial --
05-11304 +++$+++ 35106 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Especially in capital cases, courts don't like to say, oh, you know, yes, you may be innocent but there's this procedural objection. I think most courts --
05-11304 +++$+++ 35107 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm afraid that's not my experience with the court of criminal appeals.
05-11304 +++$+++ 35108 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it's my experience with a lot of courts.
05-11304 +++$+++ 35109 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And it's a very bad -- I think in the long term in the broad category of cases, it would be a very bad solution for defendants, because what's going to happen, once a court's determined there's no error at all, it's much easier for them to say, oh and by the way if there was it's harmless. And if they did that and then it turns out there was an error, you're going to be back here saying, well, don't be bound by their harmless error decision because they thought there was no error at all, so they didn't focus on it carefully. I would say the way they approached it in this case is the more desirable way. If you don't think there's an error don't go on and decide whether it's harmless or not in the abstract.
05-11304 +++$+++ 35110 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the vast majority of cases, Chief Justice Roberts, the courts in Texas take that approach, which is if there is a procedural impediment to the case they flag that procedural impediment, rule on alternative grounds, and I think that is good evidence that in this case when four justices urged a procedural element --
05-11304 +++$+++ 35111 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why, why, why do you say there are a lot of cases where it doesn't matter? I would have thought every case it mattered. Look, isn't it an absolute rule that there's a Federal issue in a case and there's a State ground, the State ground typically is a failure to raise an objection, and a State court says the Federal ground is what we're talking about. They say nothing about the State ground and they decide the Federal ground. The defendant goes to a Federal court and he says, I'm entitled to be released because they got the Federal ground wrong. I thought it's a hundred percent the case, and this is where you'll correct me, that it's now too late for the State to raise the State ground but the State's waived their adequate and independent State ground and that if they try to raise it again the answer is always, not some of the time: I'm very sorry, State; you're out of luck; you should have decided it on the State ground and not reached the Federal ground.
05-11304 +++$+++ 35112 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's exactly right, sir.
05-11304 +++$+++ 35113 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why wouldn't that be the case? Suppose the --
05-11304 +++$+++ 35114 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm sorry.
05-11304 +++$+++ 35115 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose the State --
05-11304 +++$+++ 35116 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't there a difference between waiving it as a procedural bar and waiving it as an objection to the proper standard of review?
05-11304 +++$+++ 35117 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't think it's a difference, Your Honor, because we think the underlying fact, the adequacy of the trial objection, was what obtained. And I'd like to point out --
05-11304 +++$+++ 35118 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Who gives the State court the power to, as you say, waive that objection? I can understand when you say the prosecutor didn't object. It's the prosecutor that has the power to forfeit certain arguments on behalf of the people which he chooses not to raise.
05-11304 +++$+++ 35119 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think "waiver" might not be the right word.
05-11304 +++$+++ 35120 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well --
05-11304 +++$+++ 35121 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it's clear that if the State court does not rely on a procedural impediment when the case goes into Federal habeas that impediment cannot be reintroduced in the case as a separate ground of decision.
05-11304 +++$+++ 35122 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But even if it is, logically anterior to consideration of that procedural impediment is a particular ruling on the merits and the State court didn't make that merits. They thought there was no error. It is logically not necessary for them to decide whether an error is harmless if they don't think there's an error, and to say that they waive that, that later ground I would have thought would be very surprising. Why do we remand these cases for further proceedings not inconsistent with our opinion if there's nothing further to be considered?
05-11304 +++$+++ 35123 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that the concerns for judicial economy in this case would have dictated that if the State court believed that the trial objection was inadequate, it would have rested its decision on that ground to essentially preclude merits review of that Federal constitutional issue.
05-11304 +++$+++ 35124 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Otherwise you have a Supreme Court decision that the State court can say, thanks, thanks, that's very interesting advice, but we -- there was a procedural default here. Although we bypassed it the first time, we're not going to bypass it after the Supreme Court has told us what the Federal law is.
05-11304 +++$+++ 35125 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it's a special risk in State habeas when the --
05-11304 +++$+++ 35126 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it would be a special risk if you, if you, if you allowed them to raise the bar, allowed a State to raise a bar to consideration of the issue. But I want to go back to your answer to Justice Stevens' question. You, you say you draw no distinction between the, the procedural failing as a bar to raising the issue and as a basis for determining a standard of harmless error review later. I don't understand why you, you can maintain there is no distinction because if they may not consider it as the basis for their, their standard of harmless error review, assuming we have such a thing, then what are they supposed to use as their standard? Your answer I take it is Chapman, but Chapman as I understand the statement of Federal law would not apply -- State law -- Chapman would not apply in these circumstances. And if you were in a Federal court and this were a Federal conviction Chapman wouldn't apply on collateral review. So it seems to me that you've either got to accept the distinction between procedural error as bar to issue, procedural error as basis for standard of review, or you have no way to figure out what the, what the standard of review should be.
05-11304 +++$+++ 35127 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we would take the CCA at its word that the Almanza standard's appropriate. But if the underlying fact of the adequacy of the trial objection has basically been accepted by the State court, we don't believe that on State habeas it could reintroduce the inadequacy of that. I'd like to reserve if I may the remainder of my time.
05-11304 +++$+++ 35128 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, counsel. Mr. Cruz.
05-11304 +++$+++ 35130 +++$+++ FALSE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice and may it please the Court: Two postulates govern this case. First, reconciling Jurek and Johnson and Graham on the one hand and Penry II and Tennard and Smith II on the other hand is not an easy task and State and Federal courts have struggled for two decades to draw the appropriate lines and to faithfully apply this court's Penry jurisprudence. Second, the usual default rule in both State and Federal court is that most constitutional errors are subject to harmless error review. Petitioner suggests that the State habeas --
05-11304 +++$+++ 35131 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I take it that is not an issue before us?
05-11304 +++$+++ 35132 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is an issue that on the reply brief Petitioner has essentially conceded. In footnote 5 Petitioner states that he is not seeking reversal on the basis that Penry error is structural error. But that is the issue of what the Court of Criminal Appeals did to us.
05-11304 +++$+++ 35133 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the Penry error, even if not structural, is not subject to harmless error review and you could say that that distinction is possible because Penry has a built-in harmless error or a harmful error component. But as I understand it that's not -- that issue is not in this case.
05-11304 +++$+++ 35134 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is not in this case because of Petitioner's concession, but Petitioner's concession has serious consequences because the only ground upon which Petitioner can prevail in this Court is that the State court's application of harmless error violated the United States Constitution and by giving up his structural error argument he gives up virtually any basis to lay out why that would violate the U.S. Constitution, not simply why it was incorrect but why it is unconstitutional for the State court to apply that doctrine.
05-11304 +++$+++ 35135 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's a question of waiver, part of it. I mean, that's -- it's well established that, I guess, I mean, if a State waives an adequate State ground by considering the Federal issue, the Federal courts will go into the Federal ground and they can't later, can they -- is there any case you found anywhere -- I haven't found one -- where say any Federal court considered a State case where the State went into the Federal issue, the State had said nothing about a State ground, and then after the Federal court's decided it somehow the State got a hold of it again and they this time said, oh dear, we forgot, we forgot; in fact, there is the State ground here. And is there any case that you found like that which says that was permissible?
05-11304 +++$+++ 35136 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, I do not disagree with you.
05-11304 +++$+++ 35137 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay, there's no such case and therefore this would be the first.
05-11304 +++$+++ 35138 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that's not what happened here.
05-11304 +++$+++ 35139 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
05-11304 +++$+++ 35140 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do not disagree with you that if the State court had concluded for Petitioner on a State ground TO begin with and after being reversed revisited that conclusion --
05-11304 +++$+++ 35141 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no, no. I'm saying the State typically decides against the defendant. They decide against the defendant on a Federal issue. There's a perfectly adequate State issue. It's called failure to object, and they don't mention it. I'd be repeating myself. Are you following what my, my -- and I'm saying is there any case you found anywhere which says after that occurred that the State when it gets a hold of the case again can say, oh dear, we forgot, there's also this adequate State ground, bad luck? I've never seen such a thing. I doubt that you have.
05-11304 +++$+++ 35142 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, there is no suggestion --
05-11304 +++$+++ 35143 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I say this would be the first.
05-11304 +++$+++ 35144 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's not what happened here and so we are not urging that ground to support what the Court of Criminal Appeals did. But as the Chief Justice suggested, the Almanza standard, the State harmless error standard, is a two-step inquiry. Inquiry number one, is there error; and under State law if you conclude no the analysis ends. So the first time the State court considered this it concluded there is no constitutional error and so it never addressed harmless error.
05-11304 +++$+++ 35145 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm making a mistake here. I thought that the reason they bring in the Almanza standard is, as I put it before, a kind of act of charity. That is, since there was no contemporaneous objection or proper one, you don't get any appeal normally. But we'll let you do it if you can show egregious harm. I'm wrong about that?
05-11304 +++$+++ 35146 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is not exactly how the State court and State law does it. What the State law does and our position in this case is that Petitioner failed to preserve his objection because he did not object specifically on the grounds --
05-11304 +++$+++ 35147 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but Mr. Cruz, is it not true that if he did fail to preserve the objection then there should have been a procedural bar to the case going forward?
05-11304 +++$+++ 35148 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is not a procedural bar --
05-11304 +++$+++ 35149 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is that?
05-11304 +++$+++ 35150 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- because the State Court of Criminal Appeals has chosen to forgive failure to preserve for purposes of procedural default and subsequent habeas rights.
05-11304 +++$+++ 35151 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In other words, they are saying that the failure to object does not constitute -- would constitute a procedural bar if we elected to treat it that way, but we've decided not to, but we're nevertheless going to rely on the failure to object to justify a higher standard of review on harmless error?
05-11304 +++$+++ 35152 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's exactly correct, Justice Stevens.
05-11304 +++$+++ 35153 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there any precedent for that ambivalent use of a potential procedural bar?
05-11304 +++$+++ 35154 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me suggest it's not an ambivalent use, but rather what the Court of Criminal Appeals has held, in the Black case it held that Penry I was so novel that the State courts would excuse a failure to preserve for purposes of procedural bar. So in this regard the State court is more forgiving to defendant than the Federal courts are.
05-11304 +++$+++ 35155 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ General Cruz, none of this went on in the opinion and there were four judges of that court who said there's a procedural bar here, end of case. The majority never explained why they weren't going along with that. I didn't see anything in the majority opinion that said, well, never mind that there's a procedural bar here, we're going to deal with the Federal question.
05-11304 +++$+++ 35156 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, you're right that in Smith I, the Court of Criminal Appeals, the majority did not explain why there wasn't a procedural bar. But there had been a long line of cases where the CCA had decided Penry errors were not going to bar access to the courthouse, and just last week in another decision that was decided after briefing in the case, in the In Re Hood case, the Court of Criminal Appeals made clear that in its judgment Penry II was also so novel that for purposes of successive risk it would excuse a failure to preserve.
05-11304 +++$+++ 35157 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The simple question is the procedural objection, as the four judges suggested, could have precluded consideration of the Federal claim at all.
05-11304 +++$+++ 35158 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
05-11304 +++$+++ 35159 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And the court said we're going to go ahead and consider it, and then when it turns out that they got it wrong and there was error they had to apply harmless error review. In Texas law, harmless error review turns on the standard whether there was an objection or not, and they went back and said there was no objection. The contrary assertions assumes that when they let the claim go forward, that they were waiving any reliance on objection for any purposes, not consideration on the merits, but also for any eventual later consideration on harmless error pursuant to the established State standard.
05-11304 +++$+++ 35160 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Cruz, would you clarify one thing for me? Did the Texas Court of Appeals say in effect, there is a procedural bar but we're going to waive it, or did they just not address the issue?
05-11304 +++$+++ 35161 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In Black they said exactly what you say.
05-11304 +++$+++ 35162 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How about in this case?
05-11304 +++$+++ 35163 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In this case they didn't -- they didn't say because longstanding CCA precedent made clear that --
05-11304 +++$+++ 35164 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you're assuming there's longstanding precedents. It is also at least conceivable that at the time they thought the objection was properly preserved.
05-11304 +++$+++ 35165 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is conceivable, but I would suggest the more reasonable inference is they followed their long line of precedents that said we're not going to interpose, as the Chief Justice suggests, a total bar to raising these claims. So for procedural default and for successive writs, we're not going to penalize Petitioners for failing to make objections. Just because the State court decides to be more lenient than the Federal courts in that respect does not mean that they also need to apply the lesser standard of --
05-11304 +++$+++ 35166 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you're assuming that they decided to be more lenient rather than assuming that they may have actually decided and rejected the procedural bar.
05-11304 +++$+++ 35167 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-11304 +++$+++ 35168 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's at least possible on this record, is it not?
05-11304 +++$+++ 35169 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They did not say one way or the other the first time.
05-11304 +++$+++ 35170 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. But isn't the implausibility of the argument that you are making something like this: You say the Texas rule is not that failure to object is a procedural bar but that failure to object determines the standard of harmless error review if in fact there is a later appeal. The implausibility, though, I guess of the position is that as I understand it, four members of the Texas Criminal Court of Appeals did not understand that to be the case at all. Four of them said it is a procedural bar. The four did not understand that there was this rule that you invoke, and when the four said there is a procedural bar, the majority of the court never came out and said no, there isn't.
05-11304 +++$+++ 35171 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The most reasonable explanation for that, Justice Souter, I would suggest is at the time of Smith III the Court had not decided Hood, which means it had not concluded that Penry II was also so novel that it would forgive failure to raise it.
05-11304 +++$+++ 35172 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't the consequence of that, though, that for purposes of this case there was no clear State bar at the time in question and therefore, they cannot apply it now? Maybe they can apply it in cases down the road. I'll assume for the sake of argument that they can. But not in your case, because the bar was not established at the relevant time in your case.
05-11304 +++$+++ 35173 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would arguably be the case if on remand the Court of Criminal Appeals had applied procedural default and refused to consider the case -- the claim, but not what it did.
05-11304 +++$+++ 35174 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. But what it is doing is in effect saying there was a kind of default which is subsumed in what the four dissenting justices said the first time around. And so we're going to, we're going to sort of call it a half-loaf procedural default, but we never said so the first time around.
05-11304 +++$+++ 35175 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Respectfully, they are altogether separate concepts that procedural default is a total bar to the courthouse.
05-11304 +++$+++ 35176 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I can understand that they would be separate concepts if there were a rule or if there had been a rule in place at the time he was going through his State habeas that so said. But we don't seem to have such a rule because as you said, there was disagreement within the court, and Hood had not been decided, and therefore --
05-11304 +++$+++ 35177 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But Black had.
05-11304 +++$+++ 35178 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Pardon me?
05-11304 +++$+++ 35179 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Black had and Almanza had.
05-11304 +++$+++ 35180 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Black being -- help me out, Black?
05-11304 +++$+++ 35181 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Black is what excused the failure to raise Penry I for novelty. And so it was clearly established State law at the time of this trial --
05-11304 +++$+++ 35182 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that goes to Penry I, and this is then an objection both to Penry I and based on Penry II.
05-11304 +++$+++ 35183 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the --
05-11304 +++$+++ 35184 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it's --
05-11304 +++$+++ 35185 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the Hood -- the Hood decision with respect to Penry II is being forgiving to criminal defendant. It's not a bar. It's forgiving a bar. That does not mean that the Almanza standard which had been present for -- has been present in State law for over 20 years is suddenly inadequate.
05-11304 +++$+++ 35186 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're right.
05-11304 +++$+++ 35187 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But did they cite that case in this case, in this opinion in this case?
05-11304 +++$+++ 35188 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They absolutely cited Almanza.
05-11304 +++$+++ 35189 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Speaking of that case, can you give me any citation? And just give me a citation, and here there may not be one, but you give me a citation where Texas previously said that a defendant who raised an objection before trial to the application of the statute to his client, he said it's unconstitutional as applied to my client, give me one example in Texas law where that was raised and the State appeals court of any -- at any level said, I'm very sorry, you can't really appeal that because you should have said it again during the trial.
05-11304 +++$+++ 35190 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Respectfully, Justice Breyer, that is not what we are urging, and I'm very glad you asked that question because I'd like to clarify what we are urging in our brief. That is not why we think Smith is not defaulted.
05-11304 +++$+++ 35191 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In other words, there's no case, there's no case in Texas law which says what I just said?
05-11304 +++$+++ 35192 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know if there is or not but our --
05-11304 +++$+++ 35193 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You can't say.
05-11304 +++$+++ 35194 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our argument is not based on the timing of the objection, so it has nothing to do with when he did or didn't raise his objection. And so --
05-11304 +++$+++ 35195 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought it was because he didn't raise it again in the trial.
05-11304 +++$+++ 35196 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is not --
05-11304 +++$+++ 35197 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is the argument?
05-11304 +++$+++ 35198 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The argument is that he made a different objection, a substantively different objection, because what he filed was an argument that the Texas death penalty was unconstitutional on its face across the board and as applied to him, and he made a conscious strategic choice which is, when the judge presented a charge to the counsel and said do you have any objections, do you have any suggestions, is there any way I can change it, he could have done what Penry's counsel did. Penry's counsel twice asked the judge, please instruct the jury on deliberateness so they can consider my mitigating evidence for deliberateness. Penry I said that would solve the Penry problem.
05-11304 +++$+++ 35199 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. But in this case the counsel for the defendant did one other thing, and it said to the judge, you don't have authority under State law to add to these supplemental instructions. And I was going to ask you, he was right about that, wasn't he?
05-11304 +++$+++ 35200 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, he was categorically wrong about that, and that fundamentally --
05-11304 +++$+++ 35201 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Really?
05-11304 +++$+++ 35202 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. For two reasons. Number one, because Penry I, which has already been decided, this Court has said the way to correct a Penry error is to give an instruction. And the Court of Criminal Appeals following Penry had already squarely held the way to correct a Penry error is to give an instruction.
05-11304 +++$+++ 35203 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What instruction? I haven't seen one. I haven't seen --
05-11304 +++$+++ 35204 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was it the nullification instruction?
05-11304 +++$+++ 35205 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's what the Court of Criminal Appeals has said Penry I said, a deliberateness instruction or a catch-all instruction. So -- but in both cases, both this Court and the State court have said judges can give an instruction. And Penry I's counsel made --
05-11304 +++$+++ 35206 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is your instruction -- I think this is of some importance. My understanding in this case is that the judge as well as counsel thought that the judge couldn't say in essence what became the Texas law because the legislature put it in, which is: Jury, is it two special issues, but you can consider all the mitigating evidence and it's up to you if you think that mitigating evidence is enough to have a life rather than a death sentence. That I thought the judge couldn't do. I have not seen a prelegislative change, charge in Texas that says what the legislature provided.
05-11304 +++$+++ 35207 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, that is in fact what the judge did here. What the judge could do clearly under Texas law is give any reasonable instruction to cure the error. What the judge couldn't do is submit a third special issue. It couldn't ask the jury, check, is there enough mitigating evidence to sentence to death. So it couldn't change the output from the jury. It couldn't add a new special issue but it could give any instruction possible to correct the error. That was Texas law, that you could give instructions, but the special issues are set by statute.
05-11304 +++$+++ 35208 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so the jury, what they take into the jury room is something that says these are the two questions that you must answer.
05-11304 +++$+++ 35209 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But they also have a written charge, so they get a written charge with the instruction.
05-11304 +++$+++ 35210 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which tells them that the only way that they can give effect to mitigating evidence is if they answer one of those questions falsely.
05-11304 +++$+++ 35211 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But this Court said in both Penry I and Penry II that if the trial judge defined deliberateness appropriately, even under the old special issues, that it could solve the problem.
05-11304 +++$+++ 35212 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in this case the judge said I'm going to give the nullification instruction, and the attorney said, and I think quite properly, he said that won't work.
05-11304 +++$+++ 35213 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But what the attorney -- the attorney didn't say that won't work because it puts jurors in an ethical quandary, it causes them to violate the oath. What the attorney said is, you can give no instructions. And the reason for that strategic choice is that Smith's counsel made the judgment, I want it to be impossible for my client to be subject to the death penalty. Had Smith's counsel made the same objection that Penry made, had he read Penry right in front of him and asked, give me a deliberateness instruction, it would have cured the error. But the reason I would suggest that Smith's counsel didn't is that the quantum of mitigating evidence in this case was so slight compared to the pervious cases that he made a very conscious strategic choice, I'd rather go all or nothing. I would rather make an argument that there is --
05-11304 +++$+++ 35214 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ General Cruz, how can you make that assumption when the kind of mitigating evidence that has been considered possible within these special questions, the -- the -- in the Graham case where the reputation of this young man, he was sweet, gentle, kind, God fearing, and so the murder that he committed was an aberration. And youth. Those are the two things that I know that we have recognized fall within that. The evidence in this case is surely not that we are dealing with a sweet and kind person. We are dealing with somebody who has been abused as a child and who has a mental disorder.
05-11304 +++$+++ 35215 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Respectfully, Justice Ginsburg, the evidence was precisely that he had been sweet and kind. Over 90 percent of the evidence that defense counsel relied on in closing was the 15 character witnesses to show that he was a big lovable Teddy bear and went to church, and was sweet and kind, and he had overcome these obstacles, and this was a momentary aberration. That was the central theme of defense's arguments. And in fact when the court --
05-11304 +++$+++ 35216 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When you say 90 percent, you're talking about argument time, aren't you?
05-11304 +++$+++ 35217 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm talking --
05-11304 +++$+++ 35218 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your answer to that is, there were several hundred pages of records from school and the testing that went on in school that indicated there was something seriously wrong with this guy.
05-11304 +++$+++ 35219 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well -- and it's interesting. The several hundred pages they talk about, there are three IQ tests that he had gotten. When he was 7 years old he tested at 87; when he was 10 years old he tested at 87; when he was 13 he tested at 78. They -- and they introduced all three. These were the school records. There weren't competing experts. It's interesting in closing arguments --
05-11304 +++$+++ 35220 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Maybe -- but the fact is that we're talking right now about sort of quantum of evidence. Was there something serious there for the jury to consider which in effect is the basis for all of this argument? And it seems to me it's not fairly characterized by saying, well, 90 percent of the mitigation case was that he was sweet and loving there. Whether you find it -- whether you find it persuasive or not, there was a substantial amount of evidence of -- going to his mental capacity and to his abuse.
05-11304 +++$+++ 35221 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, not only was it a very small part of the presentation, but in closing argument defense counsel explicitly pointed out to the jury that -- and let me read from defense counsel's closing: "I think it speaks well for both sides, the State and the defense to be quite honest, that we didn't bring you some hired gun, some psychiatrist that gets paid to get up here and say oh well, these are all family problems." And that is at 33, volume 33 of the record, page 59. He affirmatively -- in Penry the whole argument was there's IQ problems, there's serious abuse. There's no abuse in this case, Justice Ginsburg, no allegation of abuse whatsoever. And he affirmatively said to the jury, look, we're not relying on some psychiatrist saying there are all these family problems. Our story is that this is a good person who led a good life and this is an aberration.
05-11304 +++$+++ 35222 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Cruz. Mr. Schaerr.
05-11304 +++$+++ 35224 +++$+++ FALSE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice and may it please the Court: I represent California and 20 other states who are concerned about the implications of Petitioner's arguments for their ability to apply their own varied harmless error standards in their own State habeas proceedings, and thereby to strike what they believe to be the right balance between the two competing concerns that this Court identified in Calderon. One being the significant social costs of retrial or resentencing, and the other the desire to ensure that the extraordinary remedy of habeas corpus is available to those whom society has grievously wronged. And with those concerns in mind, I'd like to address three specific points. The first is the whole question of whether States have the ability under our Federal Constitution to choose their own harmless error standards even when they are addressing Federal error. Petitioner appears to concede as a general matter that States do have that authority, but let me just briefly indicate why that concession is well founded. First of all, as this Court has held in Pennsylvania versus Finley --
05-11304 +++$+++ 35225 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you talking about both collateral review and direct review, or just collateral review?
05-11304 +++$+++ 35226 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm just talking about collateral review right now. As this Court has held in Pennsylvania versus Finley, the States are under no obligation to provide collateral review at all, and so it would be extraordinary if they take the step of deciding that they will provide such review, for this Court to say, well, if you're going to do that you have to apply a Federal standard on State habeas review rather than the standard that you choose. Secondly, to the extent the States decide to provide habeas review or any other kind of post-conviction review, the authority by which they do that derives from State law, not from the Federal Constitution or any other Federal law, and this Court obviously does not have general supervisory authority over, over State courts as it does Federal courts. And third, unlike the situation with direct review, this Court could not as a practical matter impose a Federal standard on State habeas proceedings without being highly intrusive. I mean --
05-11304 +++$+++ 35227 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In, in this case suppose the following circumstance. Suppose a Federal court has decided in the case of this defendant --
05-11304 +++$+++ 35228 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
05-11304 +++$+++ 35229 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- there was an error of Federal constitutional law, search and seizure or confessions or something, and now we send it back. And let's suppose further the State has no independent State ground, they are not trying to make the argument, whether or not they're trying to make it here. There's no independent State ground, no objection to problem, nothing. Now, I read that one standard that could be applied is the structural error standard. A second is a harmless error standard. But I've never seen a case, but that's perhaps my ignorance -- -that's whey want you to show me -- where it's definitively established by a Federal court anyway that there was a serious Federal error, I've never seen a case where this Court said, or I can't recall one, that the State applied yet some third kind of standard, such as, well, I know there was a very important error, I know it was Federal and constitutional, but nonetheless we're not going to give them any remedy unless it's absolutely egregious harm. I've never seen that in the law. Now, can you point to me in the law where, which will correct my lacuna?
05-11304 +++$+++ 35230 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not aware that the Court has expressly addressed that precise question, which I think is --
05-11304 +++$+++ 35231 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Have you ever seen it in a State? Have you ever seen a State which gets a case back from --
05-11304 +++$+++ 35232 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-11304 +++$+++ 35233 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where? Where should I look on that?
05-11304 +++$+++ 35234 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, our amicus brief, Your Honor, cites, cites dozens of cases in which, in which States have addressed Federal --
05-11304 +++$+++ 35235 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. I'm not talking about that because obviously they can do what they want, I think, in the State courts, but they might violate Federal law if they do it. And now so what's happened is somebody has gone into Federal court or this Court and Federal court or this Court has said: Here's a Federal error, of course you're free to apply harmless error or whatever, you don't have to let the person have a new trial or let him out. But I've never seen an instance I can think of where, that having happened, the State then applied yet some third standard like absolutely egregious horrible harm or not totally wonderful harm or something like that. I've never seen. That's what I'm looking for. Is there such an instance?
05-11304 +++$+++ 35236 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Or plain error, as applied in the Federal cases under Alano.
05-11304 +++$+++ 35237 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, that's possible.
05-11304 +++$+++ 35238 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is there some reason, Mr. Schaerr, why that would be more egregious when the Federal constitutional question has been answered by a Federal district court than it is when the Federal constitutional question has been answered by the State supreme court? Wouldn't it be just as bad when the State supreme court has said the Federal Constitution has been violated and then the case goes back to the lower State court and the lower State court applies some standard for plain error which is, which is simply different from what is, what is being urged here today. I'm sure that happens all the time.
05-11304 +++$+++ 35239 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sure it does.
05-11304 +++$+++ 35240 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And I don't know why it's any worse, any worse when you do it to a Federal district court's determination of what the Federal Constitution says than when you do it to the State supreme court's determination of what the Federal Constitution says.
05-11304 +++$+++ 35241 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
05-11304 +++$+++ 35242 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I guess the reason would be that there is a problem with enforcing Federal constitutional standards. I have not heard of a State that says, suppose the jury was chosen in a racially discriminatory way, suppose there are all kinds of things, the State says, well, we admit, we admit that there is this violation, but we're just not going to apply a harmless error standard. We're going to apply a tough one. I guess that would be the reason. That's why I don't think I've ever seen it.
05-11304 +++$+++ 35243 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, and the question is whether the State is free in that circumstance to apply a State harmless error standard or if it has to be required to apply a Federal harmless error standard. And our -- and the fact is that on the ground the States are routinely applying State harmless error standards in those situations. And so it would be a sea change if this Court were to now hold that, no, when a State court is reviewing the effect of a Federal error that the State court has to apply a Federal standard rather than the State.
05-11304 +++$+++ 35244 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is there any special Federal harmless error standard that applies to unpreserved error?
05-11304 +++$+++ 35245 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it's the Alano standard, at least in the Federal --
05-11304 +++$+++ 35246 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, that's for Federal, that's in the Federal courts. But there isn't one that's applicable able to the State courts, is there?
05-11304 +++$+++ 35247 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no. There isn't.
05-11304 +++$+++ 35248 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, we haven't had the issue before us, have we? That's why you're here.
05-11304 +++$+++ 35249 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's why I'm here, that's right.
05-11304 +++$+++ 35250 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This question is a little different. If you had two harmless errors in a given State, do they have to apply them consistently?
05-11304 +++$+++ 35251 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, then the question would be is there some Federal law reason why they have to. I mean, they may under State law have to apply them --
05-11304 +++$+++ 35252 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In other words, if for example the higher standard only applies to unpreserved error and the record clearly establishes and the several State judges confirm there was no unpreserved error, then would there not be a duty to apply the lower standard?
05-11304 +++$+++ 35253 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There may be under State law, it's not clear why that would raise a Federal issue.
05-11304 +++$+++ 35254 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if the State follows the rule in just one exceptional case before the Federal court, can the court said, hey, you're not following your regular rule?
05-11304 +++$+++ 35255 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there may be a due process objection to that, but here the only objection --
05-11304 +++$+++ 35256 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there no Federal interest in ensuring that there is a full and fair implementation of a Federal right? And if the State higher standard is erroneously applied, doesn't that prejudice the Federal right?
05-11304 +++$+++ 35257 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that may be one reason why we have Federal habeas proceedings.
05-11304 +++$+++ 35258 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, that reason would apply equally, however, to determinations of Federal rights by State courts.
05-11304 +++$+++ 35259 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
05-11304 +++$+++ 35260 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And I think everybody understands that State courts do this all the time, and indeed a good way to do an end run around what, what, what the other side in this case seems to want is simply for the State supreme court to find a violation of Federal law so that it doesn't get to a Federal court and then have the State lower court apply whatever harmless error standard it wishes, which would be a crazy system.
05-11304 +++$+++ 35261 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
05-11304 +++$+++ 35262 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So if you're going to adopt this rule, this rule would have to be adopted not only for references back to the State court from a Federal decision, but you would surely have to apply it to all State determinations of Federal law, and I don't really know what authority we would have to require lower State courts to do that.
05-11304 +++$+++ 35263 +++$+++ TRUE +++$+++ MR. SCHAERR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's, that's exactly right and especially in the habeas context it would be, it would be extremely intrusive and invasive for this Court to attempt to do that. It's one thing on direct review of a State criminal conviction to say as a matter of Federal constitutional law we think there was an error here and we're going to nullify the conviction, which is what the Constitution gives this Court the power to do. But it's quite another, after the conviction is final and the defendant is already incarcerated, then on a State habeas proceeding for the issue to come, to come back to this Court, it would be extraordinary for this Court to say, well, you have to apply Federal standards or Federally dictated procedures in that circumstance. Thank you.
05-11304 +++$+++ 35264 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Steiker, you have 4 minutes remaining.
05-11304 +++$+++ 35266 +++$+++ FALSE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd like to return to the record in this case because I think once it's clarified what the nature of the evidence was in this case it's clear that this Court could find that the error was harmful under any standard, including the egregious harm standard. We have in this case over 200 pages of exhibits documenting a lifelong disability. This evidence was first introduced in the guilt-innocence phase of the trial. It was argued at the guilt-innocence closing argument, in which trial counsel said, this is a 19-year-old ninth grader who has been charged with this crime, and argued that that was the basis for considering him less culpable than his college-educated co-defendant. During the punishment phase, it's clear that the single most important witness, the one whose testimony was the most central, the most time-consuming, was Alberta Pingle, who brought in all of the school records showing from at the time the Petitioner was in school he had been diagnosed as a learning disabled, possibly organic in nature, 78 IQ. And his counsel emphasized this as the central basis for withholding a death sentence. He said, this man has a 78 IQ, 8 points from being mentally retarded, lifelong learning disabilities, possibly organic in nature. And the argument that there was no evidence of abuse in this case is belied by the fact that the evidence showed that Petitioner's father chased him with a butcher knife in order to steel the family's car in order to support his crack habit. If that's not evidence of abuse and evidence that could show reduced culpability for this defendant, coupled especially with his impairment which made him less capable of responding to that role model and avoiding dangerous behavior --
05-11304 +++$+++ 35267 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about General, Mr. Cruz's comments that this was a minor point in counsel's summation before the jury?
05-11304 +++$+++ 35268 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is true that this evidence was presented as only one page of his closing argument, but that was because of the problem in this case. As this Court noted in its summary reversal, the prosecutor got up right before defense counsel and said: You promised us on voir dire you would answer the special issues honestly and that if the evidence supported a yes answer to deliberateness and dangerousness you would give us yes answers. Basically, right before he spoke the prosecutor gave an anti-nullification instruction which said this evidence isn't relevant to the special issues of deliberateness and dangerousness. In that posture, he was left to argue that the evidence showed he wasn't dangerous, that the evidence showed he didn't act deliberately, and just hope that the jury would be willing to lie on the special verdict form.
05-11304 +++$+++ 35269 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is this argument an assertion that the Texas State court was wrong in its determination of this question of Texas State law?
05-11304 +++$+++ 35270 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ His argument --
05-11304 +++$+++ 35271 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, your argument right now.
05-11304 +++$+++ 35272 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry. I don't understand.
05-11304 +++$+++ 35273 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is your argument an argument that the Texas State court was wrong on its ruling under Texas State law harmless error.
05-11304 +++$+++ 35274 +++$+++ TRUE +++$+++ MR. STEIKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Our argument is that when you take out the clearly impermissible Federal conclusion that the jury could give effect to this evidence, which was exactly what this Court said to the contrary in its summary reversal -- this Court said this evidence couldn't be considered. The State court said he has extensive evidence, he has powerful evidence, powerfully presented, dramatically presented, but we think, unlike the Supreme Court, that a carefully crafted nullification instruction will facilitate the jurors' consideration of it. So if you take away the impermissible Federal conclusion, this Court could clearly conceive, conclude, on the basis of the State court's own characterization of this evidence, which departs tremendously from the Respondent's view, that this was powerful mitigating evidence. The Court of Criminal Appeals' error was to conclude that this could be taken into account after this Court said exactly the opposite. Thank you, Your Honor.
05-11304 +++$+++ 35275 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
05-1157 +++$+++ 35279 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument this morning in case 05-1157, Credit Suisse Securities versus Billing, et al. Mr. Shapiro.
05-1157 +++$+++ 35281 +++$+++ FALSE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The pivotal question in this case is whether this Court's decisions in Gordon and NASD require implied antitrust immunity as the district court believed. And we submit that the answer is yes. The '33 and '34 acts were of course passed for the very purpose of regulating IPOs and alleged market manipulation. And this Court has referred to these laws as the anchor of Federal economic policy in the securities field. And under these laws the SEC has laid down detailed regulations applicable to the very practices that are at issue in this case with active supervision by the SEC and the NASD. And it has done this with full understanding that syndicated underwriting is inherently concerted action. An underwriting requires joint action in accumulating information and setting the price of the offering along with allotting shares to customers. Now the Gordon and NASD cases apply directly here because of the danger of inconsistency and conflict which the SEC cited. As in cases of this Court in the past, like NASD and Gordon and later Trinko, Congress required this expert administrative agency to take competition into account when issuing its standards. And review in antitrust courts across the country would once again raise the danger of false positives and conflicts and wasteful redundancy.
05-1157 +++$+++ 35282 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did it, did it specifically state that, or is it that or just the principle that all Federal agencies have an obligation to --
05-1157 +++$+++ 35283 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, no, Your Honor, it is very express in 75 and then again in the 96. Capital formation, investor protection and competition have to be weighed against each other by the SEC, and in Gordon this Court attached great importance to that standard, which differs from the competition first standard of, the antitrust laws impose.
05-1157 +++$+++ 35284 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Shapiro, to what extent has the SEC regulated the specific vertical restraints that are alleged here?
05-1157 +++$+++ 35285 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The SEC regulates the -- the alleged tie-ins and it regulates the alleged excessive compensation claims.
05-1157 +++$+++ 35286 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And laddering, for example?
05-1157 +++$+++ 35287 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Laddering, tying, and excessive compensation. And it's had a number of enforcement actions. Its regulation M is focused exactly on those practices. It's issued very detailed guidance in a document that we attach to our petition appendix on what constitutes --
05-1157 +++$+++ 35288 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And are we to assume that if the allegations are true, which they of course may not be, that this is a violation of the -- of the securities laws?
05-1157 +++$+++ 35289 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well the SEC has said it depends on the circumstances. And they draw very fine lines in this area, Your Honor. And if, in fact, the SEC concludes it is a tie-in under its finely calibrated standards, then yes. But that's the critical issue here. It is very easy to term these things excessive compensation or tie-ins, but when the NASD looked at a real complaint of this sort in the Invemed case it found that there was no excessive compensation and no commercial bribery. And --
05-1157 +++$+++ 35290 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How about in this case Did the SEC examine that question at all in this case? And did it take any position?
05-1157 +++$+++ 35291 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this case it took no position on the merit of the underlying claims, but it said that there would be serious problems if antitrust law were applied to these allegations. It would interfere with the agency's ability to define what is manipulation and to amend its definitions. It has ongoing rulemaking proceedings right now addressed to this issue; and it said further that it would discourage underwriters from going up to the line of prohibition, which is very important in this area. Because if they don't step over the line and they engage in book building conversations, that's critical to setting the right price for the IPO. And so --
05-1157 +++$+++ 35292 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How should we, we weigh -- Congress is asking with respect to securities, private securities litigation, Congress looked at that and thought some restraint had to be placed on private actions, but it didn't do anything with respect to antitrust private action.
05-1157 +++$+++ 35293 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We think part of the repugnance analysis here should focus on the fact that these securities claims have simply been repleaded as antitrust claims. Congress wasn't aware of any problem of this sort; nobody had attempted to replead securities violations like tie-ins and excessive compensation as antitrust claims. And Congress of course relied --
05-1157 +++$+++ 35294 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Doesn't, doesn't the statute specifically provide for -- for exactly this possibility? Doesn't both the '33 and the '34 act have a saving other remedies clause?
05-1157 +++$+++ 35295 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It doesn't refer to antitrust cases. Those were references to state law remedies that Congress later contracted with the --
05-1157 +++$+++ 35296 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was it -- were those two clauses expressly limited to state law remedies?
05-1157 +++$+++ 35297 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. They referred to other claims, Your Honor, but they don't refer to antitrust. So we don't believe --
05-1157 +++$+++ 35298 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But do they have to?
05-1157 +++$+++ 35299 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't believe --
05-1157 +++$+++ 35300 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ None of the claims includes an antitrust claim on its face.
05-1157 +++$+++ 35301 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, we think -- we think they don't apply to antitrust, and in Gordon and NASD those same provisions were in place but that didn't deter the Court from finding them --
05-1157 +++$+++ 35302 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't even think we mentioned them. Did we mention them?
05-1157 +++$+++ 35303 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Pardon me?
05-1157 +++$+++ 35304 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did we mention them in those cases?
05-1157 +++$+++ 35305 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe the Court did.
05-1157 +++$+++ 35306 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, maybe we just forgot. (Laughter.)
05-1157 +++$+++ 35307 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They -- well, they -- they don't pertain to antitrust. If you look at the history of those provisions they are talking about state causes of action and there's no reference to antitrust as such in them. That's quite different from Trinko where there was an antitrust savings clause that went on in detail about saving the antitrust cause of action. The danger of conflict that the SEC is talking about here is an acute danger to its ability to --
05-1157 +++$+++ 35308 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What happened in respect to the SEC? What about primary jurisdiction? That's what I wondered as I read this. Nobody mentions it. But there's certainly a lot of precedent in the area in this kind of thing. You ask the agency, have to go to the agency, see what they say.
05-1157 +++$+++ 35309 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, the reason it doesn't get mentioned is in that Gordon the Court held primary jurisdiction was not a fix for this kind of conflict. And here the SEC has expressed its opinion in its amicus briefs already. The Court is aware of those positions laid out in our cert petition --
05-1157 +++$+++ 35310 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The allegations in this are quite different from Gordon. There you have got a horizontal -- allegedly horizontal agreement. Here you have got a vertical agreement which it seems to me depends on non-disclosure for it work at all. If there been full disclosure of all these laddering and flippings I don't see how in the world you would ever get a -- an antitrust violation.
05-1157 +++$+++ 35311 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, the conflict is different, but it's really quite a more serious conflict than it was in Gordon. In Gordon the only concern was the SEC might reinstitute fixed rates in the future, and it never did that in 30 years. Here the SEC says the conflict goes to our ability to define manipulation and to amend our rules which we're in the process of doing and we can't have conduct deterred.
05-1157 +++$+++ 35312 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, Mr. Shapiro, you're doing a good job of defending the SEC's interests but your position goes considerably beyond their position today.
05-1157 +++$+++ 35313 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the SEC in the lower courts advocated dismissal of the complaints; and in the Supreme Court, of course, they've -- they've urged for a vacator of the lower court decision. And the brief of the SG echoes many of the concerns that the SEC expressed in the lower courts.
05-1157 +++$+++ 35314 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's why I wonder about primary jurisdiction. You put a burden on the, on the plaintiffs to go to the agency and the agency could take a range of positions. It might say this is absolutely unlawful, BUT it's close enough we think an antitrust court has no business mucking around in this. Or it's unlawful and we don't care. Or, it's not -- in which case they could bring their suit. Or it's -- it's not unlawful but we don't care, or it's not unlawful and we do care. I mean, there is a range of positions they could take which was the purpose of the primary jurisdiction doctrine, to see in the context of the particular conduct, not general but in the context of the particular conduct, what the agency thought about this in terms of its regulatory mission.
05-1157 +++$+++ 35315 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think Gordon is very informative on that point. It rejected primary jurisdiction because the agency's views were already known to the Court. Here the SEC has filed a 40-page submission in the district court explaining that the suit has to be dismissed because of conflict with the administrative scheme.
05-1157 +++$+++ 35316 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's in respect to the particular conduct at issue here.
05-1157 +++$+++ 35317 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. The particular conduct at issue --
05-1157 +++$+++ 35318 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course the Petitioners have not had an opportunity, I would think -- they filed a complaint. But they've not had an opportunity to argue this out in front of the SEC with particular evidence, with particular witnesses, et cetera.
05-1157 +++$+++ 35319 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what this Court said in Gordon was that it's a legal question whether there is potential interference with the administrative scheme for us to decide the SEC's views are entitled to considerable deference, the Court said. But if they've been submitted in the form of amicus briefs, that is sufficient to demonstrate the repugnance.
05-1157 +++$+++ 35320 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I suppose if primary jurisdiction were a cure-all, there would never be any cases in which the regulatory scheme did not displace the antitrust laws.
05-1157 +++$+++ 35321 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely right. In that case, where the Court did refer an antitrust issue, the agency declined to take the reference. And here there there was a factual issue the agency was supposed to opine on. Here we have a pure legal question, the Court has held, of potential repugnance with the SEC scheme. That's for the Court to decide.
05-1157 +++$+++ 35322 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The difference between this case and Gordon is that this case, the heart of their allegations are failure to disclose which is quintessentially the SEC's business, making sure disclosures are right. I don't think if there were disclosure, they would have a problem in this case. Am I missing something on that?
05-1157 +++$+++ 35323 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what the SEC says is that if the conduct is ordinary book building, communications about future transactions, at future prices, there's no misconduct to be disclosed. It is perfectly permissible.
05-1157 +++$+++ 35324 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The allegation in the complaint is there was no disclosure.
05-1157 +++$+++ 35325 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The complaint alleges an antitrust violation. Just that there was agreement to engage in tie-ins, and an agreement not to --
05-1157 +++$+++ 35326 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The allegation is the agreement -- the agreement not to disclose.
05-1157 +++$+++ 35327 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That certainly highlights why this is an SEC case and not an antitrust case, it seems to me, because that -- disclosure is for this administrative agency to wrestle with, and it has made clear that investor welfare will be harmed and issuer welfare will be harmed if these sensitive questions are taken from it and are frozen by antitrust judgments. That was the problem the Court faced in NASD and it was the problem the Court faced in Gordon.
05-1157 +++$+++ 35328 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let me just ask one more question, Mr. Shapiro. Supposing there had been full disclosure here. Do you think there would be an antitrust violation?
05-1157 +++$+++ 35329 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in part, I would say yes, there was an agreement in restraint of trade --
05-1157 +++$+++ 35330 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Agreeing on what the --
05-1157 +++$+++ 35331 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yeah, that's their theory.
05-1157 +++$+++ 35332 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The preliminary before the IPO. But what they did after the IPO, would that violate the antitrust laws?
05-1157 +++$+++ 35333 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Really what they are alleging is a conspiracy to violate the securities laws here, that had some -- what they claim, a market effect. And it is the agreement that they contend is an unreasonable restraint of trade or they refer to the compensation payments as excessive commercial bribes. They say that violates the Robinson-Patman Act. The trouble is no matter how you phrase this, no matter how they could amend their pleading, inherent in the case are challenges to tie-ins and alleged excessive compensation payments that under the securities laws have to be regulated by the SEC. The Government has to speak with one voice on this issue under one set of standards, or administrative law gets frozen. And there's a huge deterrent effect on underwriters.
05-1157 +++$+++ 35334 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are there many situations in which a particular industry is subject to regulators and they sometimes conflict? Like EPA and OSHA?
05-1157 +++$+++ 35335 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, yes. Under these two decisions of the Court, NASD and Gordon, there has to be active supervision or pervasive regulation by the agency, and then a direct conflict with what the SEC is trying to accomplish. There are a number of things that can be regulated even under the antitrust laws under those standards. NASD and Gordon didn't stop all antitrust litigation in its tracks. Only things that were within the agency's supervisory jurisdiction to present --
05-1157 +++$+++ 35336 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The EPA is not a hands-on regulatory agency the way the SEC is. It has not been given an entire industry to regulate.
05-1157 +++$+++ 35337 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's right, Your Honor. The '33 Act, if you look at the Act, every provision in it is focused on IPOs. It is state of the art comprehensive legislation. The '34 Act in three separate provisions gives the SEC power to define manipulation. Then it has rulemaking power and then it has exemption power. This is comprehensive. It is far more pervasive than the kind of regulation that was before the Court in NASD. In that case, there was just unexercised rulemaking power. Here we have got voluminous regulations, we have interpretations, we have many enforcement actions aimed at this very same conduct.
05-1157 +++$+++ 35338 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the Government says that's fine where the regulations have been issued, and where they -- where they render the action here lawful. There's no -- no problemo. What's wrong with that?
05-1157 +++$+++ 35339 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the Government says --
05-1157 +++$+++ 35340 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The Government's willing, in other words, to give the SEC carte blanche. Whatever you say is lawful is lawful that won't violate the antitrust laws.
05-1157 +++$+++ 35341 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We think immunity extends beyond what is expressly permitted by the SEC. The way the Court phrased it in NASD was things that are connected to the agency's regulatory responsibility have to be immunized to allow the agency to do its task. And that extends a little bit further than the permission standard that the Government has given. And there --
05-1157 +++$+++ 35342 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Extends a lot further, I would think.
05-1157 +++$+++ 35343 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would think it does. I would think the NASD case would come out the other way under the standard the SG is using today. But we think we win under the inextricably intertwined standard, because all of this conduct is closely connected to what is permissible. There's a very fine line between what is forbidden and what is permitted. They can ask about future market prices. They can give the IPOs to their best customers, but they can't solicit a transaction in the immediate aftermarket while the IPO is still --
05-1157 +++$+++ 35344 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So we could decide that way. We could say, we don't have to decide what the standard is, even if it is inextricably intertwined as the Government does, you would win, you would be happy --
05-1157 +++$+++ 35345 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would win under either of these standards. But what we advocate is dismissal with prejudice, which is the relief the Court gave in the NASD case, and not a shapeless remand of the case for further pleading. And the reason for that is that the interference would overhang the market. The interference would affect the SEC's ability to lay down the standards and encourage conduct going up to the line of prohibition. And the remedy that the Court approved in NASD is exactly appropriate here, dismissal with prejudice. These plaintiffs did not even seek to amend their complaints in the lower courts. Under Second Circuit law, they've waived their right to seek an amendment. So we, in sum, urge the Court to stick with its own standards in NASD and Gordon. The standards are not broken. They don't need to be fixed. Nobody has pointed to any changed circumstances that would warrant a change in this Court's decisions, and those decisions require dismissal with prejudice. If there are no further questions, we'd reserve the balance of our time.
05-1157 +++$+++ 35346 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Shapiro. General Clement.
05-1157 +++$+++ 35348 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The United States has responsibility for enforcing both the securities laws through the SEC and the antitrust laws through the Justice Department and the FTC. It thus has a critical interest in ensuring that these laws can be reconciled in a manner that gives effect to both, and completely ousts neither. Any effort to try to reconcile those laws in the specific context of the underwriting of IPOs has to begin with an understanding of the particular regulatory context and scheme. The SEC obviously carefully regulates both the registration and the underwriting process for individual IPOs. There are two aspects of that regulatory regime that are particularly important: First, the approval for all sorts of collaborative conduct that is the hallmark of the underwriting syndicate. And second, the very fine nature of the distinctions that the SEC draws between permissible book building activity and impermissible market manipulation. And in that regulatory context, the kind of collaborative conduct that would in many other contexts raise yellow or red flags of an antitrust violation is innocuous, because it's a hallmark of the underwriting process. Equally important, the SEC does make certain conduct like tie-ins and laddering unlawful, but very closely related conduct is not only permissible, but is considered beneficial to the capital formation process.
05-1157 +++$+++ 35349 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask this question about the laddering and so forth? If it were fully disclosed, would it be unlawful under either statute.
05-1157 +++$+++ 35350 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it might, Justice Stevens. The prohibitions on laddering and tie-ins are not just disclosure provisions. And I think as a practical matter, if these kind of things were disclosed, they probably wouldn't happen. So it's a little hard to --
05-1157 +++$+++ 35351 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I can see how they would affect the market if they were disclosed.
05-1157 +++$+++ 35352 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That may be true, but the way the regulation approaches that conduct is a little bit more of a prophylactic approach. It's not just a disclosure approach, and it does say that there's conduct that is forbidden. But I think it is important to recognize just how fine the lines that are drawn here become, because, to give you a real world example, the guidance document that's at page 216A of the petition appendix makes clear that it is permissible for the lead underwriter, when talking to customers, to gauge their interest at various price points in the initial offering.
05-1157 +++$+++ 35353 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In light of the very fine line, how is the Court to distinguish between -- determine whether what's alleged is inextricably intertwined with authorized conduct?
05-1157 +++$+++ 35354 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think if you were looking at a challenge that took place solely within the context of a single IPO, it would probably be so difficult that I think we would concede that you can't practically separate the two. What I think is important from the standpoint of the Justice Department and its antitrust responsibilities is you don't want to sweep an immunity so broad that it would, say, give cover to a conspiracy that cut across IPOs, and was an effort to fix commission rates, or to make territorial agreements, or exclude a rival investment bank from the underwriting process.
05-1157 +++$+++ 35355 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the problem you address has been a problem of strike suits. And it is the problem that Congress addressed in its legislation. Shake downs. It just is less expensive to pay off the suitor than it is to litigate it to a final conclusion, where that conclusion is highly uncertain. And I don't see how your -- your solution of inextricably intertwined, where there's a penalty of treble damages if you guess wrong about that line, I don't see how that's going to stop the strike suits any more than the current situation does.
05-1157 +++$+++ 35356 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia --
05-1157 +++$+++ 35357 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I wouldn't want to roll the dice on whether something is inextricably intertwined, with treble damages at the end.
05-1157 +++$+++ 35358 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia, I think that you could certainly perform this test and make the test protect conduct sufficient to protect against that threat. We are certainly sensitive to the threat that a regulatory agency is trying to draw a fine line between two closely related areas of conduct. They're not going to be able to enforce that line as a practical matter if the regulated community knows that the consequence of having a foot fault in crossing that line will be treble damages in a class action suit. On the other hand, we would caution against adopting some sort of broad immunity that would preclude, say, the Justice Department from investigating and prosecuting an antitrust conspiracy that cut across IPOs. And of course, the Congress has addressed the problem of treble damages directly in a number of areas. And I suppose, if they were to address the area in the antitrust context, they might draw a distinction between private treble damages suits and Government enforcement efforts. Now, that's a little hard to do --
05-1157 +++$+++ 35359 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They might, but they haven't yet. A couple of times you've used this phrase cutting across IPOs. Are you saying there should be an absolute immunity from antitrust prosecution within a single IPO?
05-1157 +++$+++ 35360 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, I mean, I would warn you off of sort of saying absolutely no. I think as a practical matter, though, it is going to be -- I mean, I can't conceive of a ready example of where an allegation that is specific to an internal single IPO would really be practically inseparable. So I think the role of the antitrust laws will largely be in allegations that cut across IPOs.
05-1157 +++$+++ 35361 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And even then, why do you take the other position? It is pretty easy to imagine the SEC, under some circumstances, deciding that's a proper way to market securities, to have some kinds of agreements between IPOs or something like that. I don't see why not.
05-1157 +++$+++ 35362 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I suppose it's possible, Justice Breyer.
05-1157 +++$+++ 35363 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It is possible. I'm back to Justice Alito's question. I mean, if you're worried about taking authority from the Department to prosecute territorial restrictions as some kind of blatant price fix, that's not in front of us. So this doesn't have to be precedent for that. You're talking about this case. And there, I think the Respondent -- the Petitioners here say that my goodness, we don't see any way that a district court is going to be able to start talking about whether this evidence is protected. What does that mean, protected? Maybe protected here, because they have thought about it, but there will be a lot of cases where the SEC hasn't thought about the particular conduct. We don't know what they're going to prove. I'm back to Justice Alito. How is anybody going to administer the standard that you are asking the Court to enunciate?
05-1157 +++$+++ 35364 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think if you draw a distinction between intraIPO allegations and interIPO allegations, you go a long way towards doing it. And I should note, that's basically the line this Court drew in NASD. If you look particularly at the part of the decision that deals with count 1 of the Government's complaint, that was a horizontal allegation. And it was all in the context of vertical agreements that were specific to a particular mutual fund. And in that context, this Court said that with respect to the horizontal agreement, there's nothing in the SEC regulations that specifically addresses that, but the SEC specifically blesses the vertical agreements, so we're going to give additional immunity to that horizontal agreement. That same page, page 733 of the opinion, they say, what we don't have before us is an allegation by the government that there is a scheme here to reduce competition between mutual funds. There is no allegation that they were trying to cut down, there was an agreement that would cut down competition between Fidelity and Wellington, for example. It was all in the context of individual funds and retarding the secondary market for individual funds. The language the Court used on page 733 of that opinion seems to us a perfectly reasonable test. The Court said, quote: "The close relationship is fatal" the close relationship between what the SEC had prohibited in the vertical context and what was sought to be gone after in the context of the horizontal restraints, those are too closely related. I don't think that test has caused the undue confusion. And I think what it does it makes a reasonable balance between a ruling that on the one hand preserves a great deal of immunity, but on the other hand doesn't give a kind of blanket immunity that would basically completely oust the antitrust laws. And I think that's the balance we hope to --
05-1157 +++$+++ 35365 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What happens on remand in this very case based on your theory? You are not adopting the district judge's position that this case should be dismissed outright.
05-1157 +++$+++ 35366 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Justice Ginsburg, and --
05-1157 +++$+++ 35367 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What happens when it goes back?
05-1157 +++$+++ 35368 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think this Court could do one of two things. I mean, the Petitioners for their part have pointed to in footnote 6 of the blue briefs, to a variety of Second Circuit precedents about the standards for repleading. Perhaps the easiest course for this Court would be to just vacate and let the Second Circuit apply its own law of repleading. That would be one option. The other option would be --
05-1157 +++$+++ 35369 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But why, if this is a sprawling complaint and if the problem is that it says too much or too vaguely? A district court doesn't have to leave the pleader to its own devices. It can have a pretrial conference and say, now let's get this whole thing in order, and it's not that the pleader is left alone to do what he or she will. But in complex cases like this, the district judge will often assert control from the beginning and not leave the parties to do what they want.
05-1157 +++$+++ 35370 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would have no objection to that, Justice Ginsburg. And I would say, you know, you might say that, particularly based on the guidance this Court gives in this case and the guidance this Court gives perhaps in the Twombley case, that it might be fair to let the plaintiffs have a crack at making a new complaint in this area. Oh the other hand, as I say, we would have no objection to just allowing the Second Circuit to sort it out based on Second Circuit pleading law. I think the important thing from our perspective --
05-1157 +++$+++ 35371 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What would, what would a satisfactory complaint for this party look like?
05-1157 +++$+++ 35372 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Ginsburg, it's a little hard for me to frame that complaint. I think if it focused on inter-IPO allegations and, contrary to this complaint, paragraph 42 of this complaint, actually alleges that there were a variety of different mechanisms that were used, that doesn't sound like what you would expect from a disagreement that cut across IPOs. You'd expect uniform conduct to be alleged. And if there was that sort of conduct and it was alleged to violate both regulatory regimes in a clear way, then maybe it could go forward. Thank you.
05-1157 +++$+++ 35373 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General Clement. Mr. Lovell.
05-1157 +++$+++ 35375 +++$+++ FALSE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: This Court's decisions in NASD and National Gerimedical determined that implied immunity is not favored, is justified only by a, quote, "convincing showing of clear repugnancy," and then, quote, "only to the minimum extent necessary," close quote. It is not necessary to make the securities laws work to permit a conspiracy to engage in conduct that the securities laws have been trying to stop since their inception.
05-1157 +++$+++ 35376 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it might well be, because the reasoning would be, which I find very strong, is that as soon as you make an, bring an antitrust court in, you're talking about juries and treble damages. And as soon as that happens, the people who are subject to it stay miles away from the conduct that, in fact, would subject them to liability. And yet staying miles away, they will not engage in conduct that, A, the SEC might believe is permissible, or, B, actually favor. Where you get a complex complaint like yours, that begins to ring true, that argument. And that's what's concerning me.
05-1157 +++$+++ 35377 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I totally disagree, with great respect. Our complaint is that the conspiracy was to require laddering in order to develop pools of orders right after the stock began trading.
05-1157 +++$+++ 35378 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What they say in respect to that is the other side says it's common to try to what's called make a book or something. I don't know these terms.
05-1157 +++$+++ 35379 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
05-1157 +++$+++ 35380 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And when they do, what happens is that the marketer goes out and he asks people: What's your plan? What are you thinking of doing next month? What's your plan for this stock? Hold it? Not? It doesn't require much imagination to see how certain answers to that kind of question could be brought by a plaintiff in perfectly good faith as evidence that there's an agreement that next month they will pay more for the stock and next month they'll pay a lot more.
05-1157 +++$+++ 35381 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's not this case, Your Honor. That's not this case. We say that the underwriters made a horizontal conspiracy to inflate the prices and to inflate their charges as a result by requiring these laddering orders and jointly negotiating together the amounts of the laddering.
05-1157 +++$+++ 35382 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He's not saying that that's this case. He's just saying that it's so easy to make allegations that action which was perfectly legitimate amounted to action that was illegitimate. And that question ultimately gets thrown into the laps of the jury; and if the jury comes out the wrong way, you get hit with treble damages.
05-1157 +++$+++ 35383 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, sorry for interrupting.
05-1157 +++$+++ 35384 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm done.
05-1157 +++$+++ 35385 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. It's like a lawyer knows what to say and knows what not to say. This has been established for years. You cannot say in the securities business, Your Honor -- and we don't know this; we know what to do as lawyers. You cannot say it's a quid pro quo, I'm going to negotiate with you how much you have to purchase. That type of conduct created pools during the 1920s and the early 30s which manipulated prices to unsustainable levels that led to the great stock market crash and maybe the depression. The legislative history said: We want to stop pools. In section 982 of the Securities and Exchange Act it says, quote, "One person or more cannot work together to raise prices." We allege that the first part of this horizontal conspiracy, across underwriters and across IPOs, was to require the laddering in order to raise prices.
05-1157 +++$+++ 35386 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The problem -- I'd be repeating it. we're not talking about, say, your case. I don't know what your evidence is. But let's imagine a case where the evidence of just what you said consists of some rather ambiguous discussions which might be characterized in a variety of ways, including the way the way the plaintiff wants to characterize it, who would repeat the very words you just said. Now, the issue, it seems to me here, is in light of that possibility, do we want an antitrust judge to say whether that's so? I know you do. Or do you want the SEC to say whether that's so in the particular case? Or that's why I thought of primary jurisdiction: Maybe first send it to the SEC. What's your view?
05-1157 +++$+++ 35387 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'll do primary jurisdiction last, Your Honor. My view is that to bring in the other case is, in effect, to exculpate antitrust violations. On this narrow case that we've alleged, under Connelly versus Gibson there is no other case. Anybody who's charged with murder or any serious conduct could say: Well, you can't really apply that because this is the other case.
05-1157 +++$+++ 35388 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you if your conspiracy allegation would be the same if there were only one underwriter?
05-1157 +++$+++ 35389 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. No, Your Honor.
05-1157 +++$+++ 35390 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It is critical to your case that there are multiple underwriters?
05-1157 +++$+++ 35391 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, yes.
05-1157 +++$+++ 35392 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What if we thought that the activities of the multiple underwriters were Comparable to a single joint venture? In many respects they're like a joint venture. Would that mean your whole case could collapse? In other words, I'm really wondering to what extent you're depending on your horizontal agreement as opposed to the vertical arrangements like laddering and flipping and that sort of thing.
05-1157 +++$+++ 35393 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We totally depend on the horizontal agreement, Your Honor. The case rises or falls on the horizontal agreement among underwriters to require that which the securities law --
05-1157 +++$+++ 35394 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If there had just been the vertical agreements and if they had been fully disclosed, there would no antitrust violation, would there? If there had just been publicly disclosed agreement by one underwriter with the purchasers to engage in these activities, there would be no violation, would there?
05-1157 +++$+++ 35395 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If there's no market power, we're not alleging that, and we wouldn't try to bring that case, Your Honor. Where the antitrust laws, as General Clement says, have their reach is that they get the whole elephant. If we prove that the underwriters conspired as we alleged, and there's five administrative complaints here -- it's not something where it's is a strike suit. There's five administrative complaints finding this parallel unlawful conduct, which would work best through a conspiracy. And we have our allegations in the complaint that they worked jointly together to do in this case what's always been prohibited under the securities laws.
05-1157 +++$+++ 35396 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about the Solicitor General's suggestion about extending antitrust immunity to a single IPO? In other words, what's wrong with that? That's where the SEC's regulation seems to be most pervasive, and what you can do in the context of an IPO if your allegations cut across IPOs that might be different.
05-1157 +++$+++ 35397 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's a hypothetical. We're not trying to do an individual case. I don't have a strong position on it. There is a case called Roth berg in the Eastern District of New York -- the Eastern District of Pennsylvania, a district court case, that recognized an antitrust violation in a single stock manipulation. There are other cases called Shumway and -- and I forget the other case -- that said, no, you can't have it. They've gone both ways. It wouldn't matter to our case at all. We're trying to get at -- the securities laws are transactional. They can't get at a big wrong like this. They only get their own part of the elephant. The antitrust laws, this is business as usual, step into my office. As General Clement says, the antitrust laws come if we prove that there was a horizontal agreement. Then all of these individual efforts --
05-1157 +++$+++ 35398 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What are you talking about when you say a horizontal agreement? Are you talking about a group of underwriters in the context of a single IPO?
05-1157 +++$+++ 35399 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
05-1157 +++$+++ 35400 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No.
05-1157 +++$+++ 35401 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. It's across IPOs and across underwriters. They changed their business. They all changed the business at about the same time: This is the way we're going to operate. We're going to require the laddering orders. That moves the price up. And we're going to require another type of tie-in agreement that allows the underwriters to participate in the customer's profits from the difference between the IPO price and the inflated prices at which transaction sales were made right after the IPO.
05-1157 +++$+++ 35402 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about an agreement among underwriters, among underwriters, which says the following: We agree that we go -- when we go on our tour, we will be certain to ask the potential purchasers whether they plan to hold this stock for at least a month.
05-1157 +++$+++ 35403 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No problem.
05-1157 +++$+++ 35404 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No problem.
05-1157 +++$+++ 35405 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Never.
05-1157 +++$+++ 35406 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How do you know that isn't a disguise when they say --
05-1157 +++$+++ 35407 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We wouldn't bring the case, Your Honor.
05-1157 +++$+++ 35408 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ah, ah. What they've said was -- you see, they have the same allegations. I don't know how to -- you see what I'm driving at?
05-1157 +++$+++ 35409 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Yes, but --
05-1157 +++$+++ 35410 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's the answer?
05-1157 +++$+++ 35411 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think it fits into the way of this narrow case and the facts that are presented for immunity here, which the Congress has been trying to stop forever, and the conduct's spread between 1997 and 2001 and was a massive violation that the securities laws really aren't cut out to address. I know I'm getting off your question a little bit, but in the NASDAQ antitrust litigation these defendants and their predecessors agreed to keep the spreads wide in the over-the-counter market. There were rules about maximum spreads. There were many rules, many regulations. However, it was never permitted in the securities markets for all the underwriters across 5,000 stocks -- we only proved it out to 1600 -- to widen their spreads, to keep their bids and offers wide. Billions of dollars -- the Justice Department after we brought the case, the Justice Department brought a case. The entire industry was changed. You can now trade a million dollars worth of stock for less than it costs to change your tire or something. And it's all due to the antitrust -- I'm sorry, Your Honor.
05-1157 +++$+++ 35412 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm trying to grasp the difference between the single IPO and multiple. So in response to Justice Breyer's hypothetical, they all agree in the context of a single IPO, let's make sure everyone's going to hold the stock for a month, and you say no problem.
05-1157 +++$+++ 35413 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No problem.
05-1157 +++$+++ 35414 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if the same underwriters get together the next month, they've got a different IPO and they say, you know, let's do the same thing we did last time because seemed to work well in terms of the issuance and the capital formation. All of a sudden that's an antitrust problem?
05-1157 +++$+++ 35415 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. The basis for my answer is two levels of no problem. There's not a problem as to the single deal and there's not a problem as to saying you have to hold the stock. That's not at issue. We have no problem with that. What's always been prohibited is to create pools of orders to drive up the price of the stock. If you work to raise the price of the stock, which this was all geared to do, after it came public, it drives prices to unsustainable levels. It creates a lot of action in the stock. People come in and buy. Our clients buy directly from the defendants who are driving the stock up. And yes, there was no disclosure. As with any antitrust conspiracy, if there was disclosure there could have been --
05-1157 +++$+++ 35416 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can you get damages for that from the SEC? I mean, it sounds like bad conduct.
05-1157 +++$+++ 35417 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The SEC refers the customers to the private lawyers if you complain. The securities laws are totally different from the ICC, from the common carrier case.
05-1157 +++$+++ 35418 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose you lose, your client -- suppose all these bad things happen and you don't have an antitrust claim. Is there somewhere in the law that you can get damages?
05-1157 +++$+++ 35419 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Where?
05-1157 +++$+++ 35420 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The specific intent of Congress in creating the securities laws was to create private remedies which are available, and to preserve all other remedies, including --
05-1157 +++$+++ 35421 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So what's at issue here is not whether you get a remedy. It's whether you get treble damages.
05-1157 +++$+++ 35422 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Theoretically, there are other remedies as to each individual client for what each individual client did. No one can address in a securities case the wrong that happens here. The agreement. That can only be addressed as General Clement says at page 22 of the brief, through an antitrust case.
05-1157 +++$+++ 35423 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is that? I don't understand why the SEC could not -- they can make rules for a single IPO; it seems to me they can make rules for coordination of IPO. Why can't they do that?
05-1157 +++$+++ 35424 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the SEC could make a rule to prohibit -- to further supplement the protections.
05-1157 +++$+++ 35425 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right, right.
05-1157 +++$+++ 35426 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. They could supplement the prohibitions --
05-1157 +++$+++ 35427 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They have chosen not to.
05-1157 +++$+++ 35428 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it -- it -- I think it's more institutional that the focus has always been transactional, Your Honor. And the Congress clearly in 982 of the Securities and Exchange Act of 1934 clearly prohibits individual or joint efforts to raise prices, empowers private investors to sue, empowers the SEC to sue --
05-1157 +++$+++ 35429 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but --
05-1157 +++$+++ 35430 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There could have been a suit by now but it has never happened.
05-1157 +++$+++ 35431 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you -- you could regard the activity of laddering and of making a book on a stock when the -- in the case of a single offering. You could -- you could look upon that as, as an attempt to raise the price. That's what it is, isn't it? An attempt to make sure there's going to be a high enough price for the stock so that it won't flop once it's out there?
05-1157 +++$+++ 35432 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the -- there's huge qualitative differences between certain types of conduct which has always been accepted and was not prohibited in the securities laws and laddering or pools of orders to raise prices and tie-in agreements. The only metaphor I can throw out, Your Honor, is that we know how far we can say and what we can't say, the brokers always know this, until 1997 to 2001 when they -- they changed their underwriting businesses to go -- and we, we allege that they required, induced, solicited -- not that they did things on the way -- close to the line or -- in the, what had always been the accepted area, the world changed. And that change moved into the territory that had -- sorry for hurrying -- that had always been prohibited.
05-1157 +++$+++ 35433 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah. And you're saying they did this just -- not in the context of just single IPOs, but that they agreed across IPOs that they would all do this.
05-1157 +++$+++ 35434 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, across IPOs and across underwriters, so that --
05-1157 +++$+++ 35435 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why?
05-1157 +++$+++ 35436 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So that a customer couldn't go to another underwriter for a different deal.
05-1157 +++$+++ 35437 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Uh-huh. The customer being the issuer?
05-1157 +++$+++ 35438 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no. The public customers who have accounts with the underwriters; they're also brokerage firms. If they wanted to get an IPO in what we call class security, the technologies securities, they had to pay --
05-1157 +++$+++ 35439 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They'd have to pay the premium.
05-1157 +++$+++ 35440 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yeah. They had to pay these unlawful charges under securities laws, no matter where they went. And in terms of the inextricably intertwined, it is the qualitative difference that stops that. I think behind the Solicitor General and the SEC's proposal is a fear that the syndicates, the underwriters are vulnerable to an antitrust case because they operate together. That's not true. There's never been a case precisely like this; and the underwriters as brokers, as market makers, they operate together and cooperatively all the time. Five years goes by. Seven years goes by. There's no antitrust case --
05-1157 +++$+++ 35441 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. So what are the words you use in the opinion, that would separate your case, where it is like price fixing and so forth, to charge them, from the case that they're worried about, which is where the evidence is, to prove the allegation is, really involves activity that could be quite legitimate? Now, now -- what words would I write in the opinion that in your opinion would separate the sheep from the goats?
05-1157 +++$+++ 35442 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They agreed to inflate prices in precisely the way the securities laws have always prohibited. They agreed to inflate prices and they agreed to make tie-in agreements that have always been prohibited under the securities laws, to participate in the profits from the inflated prices, which they were not permitted to participate in.
05-1157 +++$+++ 35443 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So your test is it has to be prohibited by the securities laws?
05-1157 +++$+++ 35444 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. But in this narrow case, it happens to be that the method that they went to, which was always a guaranteed method to drive up prices and to participate, was -- had always been prohibited by the securities laws. It is not the test. The test for the antitrust claim is merely this: they wanted to make an agreement to inflate prices and they wanted to make an agreement to inflate their charges. And if a customer came to this underwriting trust at the time to deal with them, they had to do this type of transaction to inflate the price, and they had to pay the underwriting extra --
05-1157 +++$+++ 35445 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you say to the -- sort of stepping back from the trees to the forest, to the general suggestion that Congress has been tightening up the requirements for private securities litigation over the past few years; and you're bringing this now as antitrust claims as a way to circumvent Congress's regulation.
05-1157 +++$+++ 35446 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That the actual facts show that Congress wanted this claim to be brought. Certain -- Congress is well aware of the NASDAQ antitrust litigation and of the Salomon Brothers antitrust litigation, both antitrust claims in the securities markets. Both situations where the diligent professionals at the SEC were criticized by the congressional oversight people for not finding out what was going on, perhaps, and that the antitrust bar did and brought the case, and then the DOJ brought it and then there was questions.
05-1157 +++$+++ 35447 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about -- what about -- listen to what I'm about to say. I'm thinking of the standard. The standard would be where the allegations are such, where the case is such that -- to go further -- that, one, it is an allegation of a claim of illegality; is price fixing, in price fixing; and it is of longstandingly prohibited under the securities law; and there is evidence to support that, of -- strong evidence to support it, or the evidence in support thereof is not primarily evidence simply of asking the jury to draw inferences from conduct that is protected. Under those circumstances there is no immunity.
05-1157 +++$+++ 35448 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Bingo. That -- we live with all that, Your Honor. To quote -- sorry, sorry. (Laughter.)
05-1157 +++$+++ 35449 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't know if it's -- I mean, you know -- (Laughter.)
05-1157 +++$+++ 35450 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no - but we agree on every one. But to go back --
05-1157 +++$+++ 35451 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How could the Court -- how could a court enforce that at the 12(b)(6) stage? Determining whether there's strong evidence of one type or another.
05-1157 +++$+++ 35452 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in this particular case, Your Honor, there's five administrative proceedings that have, that have come forth since we -- we filed first, and there was nothing. And -- but since then there have been a lot of administrative proceedings. I would say that the fact that parallel unusual -- unlawful conduct is occurring in a way that the horizontal people who are doing it inflate their prices at the expense of the public, would satisfy any test.
05-1157 +++$+++ 35453 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Look, the question isn't whether it satisfies it. The question is whether you can get rid of this suit at the outset or do you have to go through enormously expensive discovery, which -- which isn't worth the candle.
05-1157 +++$+++ 35454 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think you have -- for the good of the country, I think you have to follow the facts and find out if these people conspired as alleged.
05-1157 +++$+++ 35455 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- discovery? Right?
05-1157 +++$+++ 35456 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Sure.
05-1157 +++$+++ 35457 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the problem -- the problem is that, of course, these people are to some extent under the securities laws in the business of fixing prices. They get together as a syndicate, a syndicate, and say well, you have to figure out what price we're going to charge for this initial public offering. It looks, if you didn't understand the context, it would look an awful lot like an antitrust violation. And the problem is, I guess, that -- that when you take that type of evidence, the type of evidence you're going to be relying on to show that there's price fixing, it is exactly what the SEC wants the people to do. They want them to get together. They want them to agree on an appropriate IPO price that's going to contribute to capital formation and everything else. And how do you at, as Justice Alito pointed out, at the 12(b)(6) stage, how is a district court supposed to say well, this is the bad price fixing, this isn't the good price fixing?
05-1157 +++$+++ 35458 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again it is the qualitative difference. Everybody knows -- and the SEC does want IPO prices to be fixed, just like in the NASD case, they only wanted one price for the mutual fund shares because people could be disadvantaged. However, everybody also knows under Section 982 and Section 17 of the Securities Act, that you don't go over and rig the after market, not even in one stock, let alone what we allege, across stocks. And with regard to the question earlier, Your Honor, about how Congress --
05-1157 +++$+++ 35459 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't think you've answered his question.
05-1157 +++$+++ 35460 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, I'm sorry.
05-1157 +++$+++ 35461 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think that you've said that the two were different. His question was how can you tell at the outset, at the 12(b)(6) stage, the difference between those two things that you've mentioned? Sure they're different but -- but the evidence that is only evidence of the one also looks like evidence of the other.
05-1157 +++$+++ 35462 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-1157 +++$+++ 35463 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is the particular difference between supporting the price and rigging the aftermarket? I mean, how do we tell that at the 12(b)(6)?
05-1157 +++$+++ 35464 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You look, you compare the cases to the language in the complaint. In paragraphs 4 and 5 of the complaint we say that they agreed to require laddering, they agreed to require this. We don't say that they made any -- any hints or legitimate activity. We're held to that burden of proof. You look at the cases, required has always been unlawful. To require a pool of orders to drive up the prices -- always unlawful. And Congress during the 1990s did narrow the securities laws; and they took away treble damages as to RICO, and they stopped resorting to state court, where the standards weren't as stringent as under the PS law -- for class action. However, they knew about these antitrust cases that had saved billions of dollars for consumers. They applauded them. And they reenacted the savings clause that says all rights and remedies are preserved.
05-1157 +++$+++ 35465 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How did they applaud them?
05-1157 +++$+++ 35466 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they just said that they -- Congress -- that's too strong a statement. The specific Congress people involved were glad that the -- the wrongdoing was uncovered and said as much and wrote to the Attorney General, and the SEC, and said why -- why wasn't it found sooner? But they did not touch these antitrust actions. Number one, they come very infrequently. Number two, they've done great benefit for the securities markets and for the participants in the securities markets, and even for the defendants themselves. They forced the defendants to operate by talent and bring out their best, and not resort to what the problems for the public always is --
05-1157 +++$+++ 35467 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The SEC which is the agency charged with supervising those markets, thinks otherwise.
05-1157 +++$+++ 35468 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No -- no.
05-1157 +++$+++ 35469 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They don't think these, the antitrust actions are good for the securities markets.
05-1157 +++$+++ 35470 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The SEC -- and this is the first immunity case before the court where the SEC and the DOJ both are in favor of not having substantive immunity. They both oppose immunity.
05-1157 +++$+++ 35471 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that wasn't the SEC's position below, was it?
05-1157 +++$+++ 35472 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. No, it was not, Your Honor.
05-1157 +++$+++ 35473 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the Justice Department was on one side, the SEC was on the other. Right?
05-1157 +++$+++ 35474 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. And --
05-1157 +++$+++ 35475 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It looks to me like they split the baby up here. (Laughter.)
05-1157 +++$+++ 35476 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I -- that's the only way I can see it. But if Your Honor looks at the questions that the SEC answered to Second Circuit, the SEC said they couldn't say how the current laws couldn't work on the facts of this case, but future cases might present a closer case, Your Honor.
05-1157 +++$+++ 35477 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I would always -- I think the standard I was more or less talking about is pretty close to what the SG says. And I think he says that -- that -- that Justice Alito's point, which is certainly a good point, is that you would have to allege facts such that it was clear from the face of the complaint that you weren't resting your case on the conduct that was -- that's what he means by protected -- and there's an ongoing obligation, it says, on the part of the district judge to be sure that the case isn't really growing out of this conduct that is arguably okay.
05-1157 +++$+++ 35478 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Protected conduct. And we could live with --
05-1157 +++$+++ 35479 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You, you could live with the SG --
05-1157 +++$+++ 35480 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We could live with that. On the other hand, applied immunity is an affirmative defense. It was held in Cantor versus Detroit Edison, 428 US 579, which didn't make it into our brief, that applied antitrust immunity is an affirmative defense. As we brief, there's a long line of cases from Your Honors that say that you don't have to plead in the complaint to negate an affirmative defense. I don't think that unlawful conduct under the securities laws is entitled to more protection than free speech or some of the conduct in these other cases; and I -- and we've opposed the inextricably intertwined standard as particularly inappropriate where an affirmative defense is involved. Nonetheless, we could live with that, if it came down. And we think the complaint already lives with it. The complaint has, from paragraph 53 through paragraph 63, a number of allegations of joint conduct to do things which are clearly unlawful under the securities laws. It does have one allegation about holding road shows. On its own, that's permissible. We don't have a footnote that says this is permissible on its own. That may have caused somewhat of the problem for -- for people. But reading the complaint as a whole, paragraph 5 says that these later paragraphs I just referred to show how the time in the syndicates was abused. And I'm going back to this vulnerability point. The defendants are vulnerable to an antitrust class action plaintiffs saying, you conspired. Yes. But it only happens -- it only happens once in a while. And think about it. If they abuse their time in the syndicates to create a conspiracy of this nature, to do something that's always been prohibited under the securities laws, and it's clearly prohibited under the antitrust laws, why should we bend over backwards to protect that every five years or seven years? The normal --
05-1157 +++$+++ 35481 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You didn't have a chance to answer Justice Breyer's question about primary jurisdiction. Let's get the SEC's views first of whether there is any interference with securities law enforcement.
05-1157 +++$+++ 35482 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The public carrier cases, the Interstate Commerce Commission, the sea carriers and the air carriers have had primary jurisdiction as an approach. In order to keep it uniform, they kept the rate and then there would be questions on the rate. So both for administrative discretion and factfinding, the Court said that's their baby, we're going to stay out. The securities laws have always been totally different. The antitrust laws - it was a little bit patterned after the antitrust laws. Section 9(e) is like the antitrust laws, 15 U.S.C. 15. the antitrust laws said we want private attorney generals to go out and sue. The securities laws said we want to give the remedies under this act, new remedies. We want to preserve -- preserve all other remedies, any and all other remedies. The single damages point raised by the defendants in the same section is only a limit on recovery. It's not a limit on the rights and remedies. So the answer to primary jurisdiction is that it's always worked this way, that the private plaintiff is supposed to sue in court. He's expressly empowered under securities laws to sue in court, As he's expressly empowered under the antitrust laws, and the courts have always resolved the issue.
05-1157 +++$+++ 35483 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but we haven't had this problem focus before, and isn't primary jurisdiction the most efficient answer to the problem that we've got? In other words, isn't it time to do something different?
05-1157 +++$+++ 35484 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't believe so, Your Honor. The times that it's come up before in the NASDAQ case, United States versus Morgan, the courts have said business as usual. They used the usual implied immunity standard and they resolve it, as usually happens. In Richey, the Richey case and a few other cases we've either said -- not implied immunity, but we've either said we're not going to get involved, it's the agency's, it's the ICC's responsibility, or it was referred one time in the Richey case to the old Commodity Exchange Commission, which then declined to take the referral because -- that was an appropriate referral because it had to do with the exchange rules.
05-1157 +++$+++ 35485 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't understand what happens with this primary jurisdiction in the context of an antitrust suit. You're entitled to a jury trial in the antitrust suit, right?
05-1157 +++$+++ 35486 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-1157 +++$+++ 35487 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And in primary jurisdiction, would we refer it to the SEC and accept the SEC's fact determinations and then instruct the jury that --
05-1157 +++$+++ 35488 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Never happened before, and it's contrary to the -- what Congress wants. In a different statutory context, it was what Congress wanted for uniformity.
05-1157 +++$+++ 35489 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it is really the factual determination that is the hang-up, that you don't want things that are innocent and that the SEC would know are innocent to be taken as evidence of guilty by the jury. So you really haven't accomplished a whole lot if you just send it over to the SEC for rulings on the law as opposed to rulings on whether this particular conduct violated the law.
05-1157 +++$+++ 35490 +++$+++ TRUE +++$+++ MR. LOVELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree, Your Honor. I think that the presence here of the SEC complaints, the SEC's fact-finding, saying that things got out of hand during this time and the law was broken on a widespread basis, indicate that we are not coming forth with weak facts. And I also agree that in the securities context, primary jurisdiction has not had the basis it's had in other legislative contexts where uniformity was desired. Thank you.
05-1157 +++$+++ 35491 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Lovell. Mr. Shapiro, you have four minutes remaining. STATEMENT OF STEPHEN M. SHAPIRO ON BEHALF OF THE PETITIONERS
05-1157 +++$+++ 35492 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice. The key question in this litigation is who's going to design what a tie-in is and who's going to decide what constitutes unreasonable compensation. The plaintiffs say quite overtly in their briefs these issues can't be left in the hands of the SEC. Well, Congress put these issues in the hands of the SEC. There are three separate provisions that give the SEC power to define what is forbidden manipulation, what is a forbidden tie-in, and what is excessive compensation. The SEC this Court has said is an agency that Congress had considerable confidence in in the Gordon case and that confidence is well justified here.
05-1157 +++$+++ 35493 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's your test, Mr. Shapiro?
05-1157 +++$+++ 35494 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our test is the one the Court laid down in those two cases: Is there active supervision or is there pervasive regulation? If the answer is yes to either of those, you ask, is there a potential conflict, and if so immunity applies and the complaint has to be dismissed. And this is true whether you're talking about one IPO or an agreement that cuts across several IPOs, because even in the multiple IPO situation the jury would still have to decide, was that a tie-in or was it something innocent; was it unreasonable compensation or was it something that was proper?
05-1157 +++$+++ 35495 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We all agree, say a group of underwriters, that for the next we will insist that every customer, whatever price we charge, will pay 30 percent more for 50 percent more shares next month. Absolutely illegal, isn't it?
05-1157 +++$+++ 35496 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-1157 +++$+++ 35497 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They write it down, just what I said.
05-1157 +++$+++ 35498 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The same circumstances were presented very similar to the NASD in the Invemed case. They had a Three-week trial, 17 experts, and they concluded that those charges were quite permissible considering the whole range of services that were given. Now, if this occurred with concerted action the SEC has power to deal with concerted action. Congress said that they could deal with multiple party manipulations. They have many cases where they proceeded against multiple parties. In the NASD case the claim was that there was a horizontal conspiracy involving many brokers and many underwriters, it was industrywide, it went on for years and years. And the Government argued there it was improper, it was contrary to the SEC's policies this. This Court held squarely that that is within the SEC's power to regulate and if something of that sort is occurring the SEC can deal with it. The test there wasn't whether it was connected to something that was permissible. The test was whether it was connected to the SEC's regulatory responsibilities and the SEC could deal with that sort of concerted action on an industrywide basis. Now, Mr. Lovell has argued that the conduct has always been forbidden. He labels it that way. There are many case from this Court that we cite in our reply brief holding that that labeling does not defeat immunity because it's always possible to characterize conduct in that fashion. But the agency has to apply its expertise to decide what is forbidden and to change its rules over time, which the SEC is now doing. And it has to be able to prevent, deterring conduct that comes up to the line of prohibition. Here that conduct is essential to protect investors and to protect issuers. The markets couldn't function efficiently if underwriters could not engage freely in the kinds of conversations that get twisted in this litigation into something characterized as tie-ins. Now, there are 310 private suits now pending under the securities laws brought by many of these same lawyers, making the same claims of concerted action to manipulate the stock market. Those suits are subject to a panoply of safeguards that Congress has prescribed, including single damages, restrictions on class action abuse, serious loss causation requirements. The only purpose for stretching the antitrust laws here is to evade all of the safeguards that Congress has passed, each and every one of them. We think NASD and Gordon are very important in preventing that kind of a pleading tactic. And of course, when counsel talks about concerted action and manipulating the stock market, what did Congress pass the '34 Act for if it wasn't that? There were extensive hearings about concerted manipulation involving pools and groups that were manipulating the market. That's why there are several anti-manipulation provisions in the '34 Act that give Power to define the misconduct and to deal with it effectively. And this is the toughest cop in Washington, the SEC. They're perfectly capable of dealing with this.
05-1157 +++$+++ 35499 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Shapiro.
05-1157 +++$+++ 35500 +++$+++ TRUE +++$+++ MR. SHAPIRO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We thank the Court.
05-1157 +++$+++ 35501 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The case is now submitted.
05-1240 +++$+++ 35506 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument next in Wallace versus Kato and Roy. Mr. Flaxman.
05-1240 +++$+++ 35508 +++$+++ FALSE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: This case presents the Court with the question it addressed in Heck versus Humphrey raised in a slightly different context. The context in Heck was of a prisoner whose conviction had been affirmed who was in prison, who had filed a civil rights case that would have had the practical effect of collaterally challenging his criminal conviction. The context in this case is of a civil rights plaintiff who has prevailed in his criminal case, who was imprisoned for 8-1/2 years fighting the criminal case and comes to Federal court with a Section 1983 action saying, I now seek a remedy for my unconstitutional incarceration, and files his lawsuit. The court in Heck held that this action, an action to recover damages for unconstitutional conviction or imprisonment, accrues when the conviction is set aside. That's the principle that we asked the court of appeals to apply and the court of appeals said: We're not going to apply that because we will adopt a categorical rule without any implied exceptions whatsoever that says when you're arrested you have 2 years, which is the statute of limitations in 1983 cases in Illinois, to file your claim for damages.
05-1240 +++$+++ 35509 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Flaxman, one starting point. You say that this case should be just like Heck, but in Heck the core problem was the line between 1983 and habeas, right?
05-1240 +++$+++ 35510 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that was one view of the core problem.
05-1240 +++$+++ 35511 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But at least this case involves no such concern about habeas.
05-1240 +++$+++ 35512 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. In Heck the Court solves the core problem by concluding -- by denying the existence of a cause of action for damages until the criminal case had been resolved in favor of the civil rights claimant, which is the rule, the common law rule for malicious prosecution. That's the solution that the Court came up with in Heck, which is the solution that the petitioner believes should be applied in this case.
05-1240 +++$+++ 35513 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But only if, only if the challenged evidence, the challenge to the evidence, if sustained, would necessarily -- and this is the crucial language -- invalidate the criminal conviction.
05-1240 +++$+++ 35514 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's what would have happened in this case, as the dissenting judge in the petition for rehearing --
05-1240 +++$+++ 35515 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would necessarily have? You could have said that ex ante?
05-1240 +++$+++ 35516 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. In criminal cases there's discovery and the criminal defendant knows what the prosecution --
05-1240 +++$+++ 35517 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You don't know what other evidence there might have been in the criminal case. Ex ante you can't tell.
05-1240 +++$+++ 35518 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You do know because it's disclosed in discovery. We don't do trial by ambush any more in criminal cases. The defendant knew that all the evidence against him was the alleged --
05-1240 +++$+++ 35519 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but he did not know that for years later. I mean, they don't have to bring a prosecution immediately. They can wait until the day before the statute of limitations runs.
05-1240 +++$+++ 35520 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there is no statute of limitations for murder in Illinois.
05-1240 +++$+++ 35521 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, then they can wait a long time. (Laughter.)
05-1240 +++$+++ 35522 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If he's incarcerated that whole time awaiting the filing of charges, then his cause of action would not have accrued. But the more likely scenario is that he would be arrested --
05-1240 +++$+++ 35523 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, is that -- I mean, your friend on the other side says that the cause of action would have accrued at the moment at which he was bound over by the decision of an independent magistrate. At that point the false arrest and the incarceration incident to the false arrest is over and if there is ever going to be a claim for what happens next, I gather it'ss going to be a common law action for false imprisonment, and that, I guess, would not accrue until the imprisonment is over. But so far as the arrest is concerned, whatever whatever wrong is done, that wrong is completed at the point at which an independent magistrate takes over.
05-1240 +++$+++ 35524 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the claim was solely directed at the arrest, then Your Honor would be absolutely correct. The claim in this case, the cause of action, is not that he was taken off the street without probable cause. The core of the cause of action is that the respondent police officers exploited that arrest to get this untruthful confession that was used to hold Mr. Wallace in custody for 8-1/2 years, to seize him for 8-1/2 years. It's not just the arrest. It's the arrest plus exploiting it.
05-1240 +++$+++ 35525 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But all of that occurred, as I -- correct me if I'm wrong on the facts, but I thought all of that occurred prior to -- I don't know what they call it in Illinois, but prior to a bind-over hearing or prior to the point at which the judiciary steps in, breaking the, as it were, the chain of causation between what the police do and the subsequent incarceration.
05-1240 +++$+++ 35526 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under Malley versus Briggs, it doesn't break the chain of causation if we adhere --
05-1240 +++$+++ 35527 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but just as a factual matter is it correct -- is it correct as a factual matter that the confession that was given was a confession that was given before there was any judicial intervention, before he was brought before a magistrate?
05-1240 +++$+++ 35528 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-1240 +++$+++ 35529 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
05-1240 +++$+++ 35530 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There was no other evidence presented to the magistrate or that could have been presented to the magistrate other than the confession to show --
05-1240 +++$+++ 35531 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, Mr. Flaxman, is your argument limited to that situation, where there is no evidence whatsoever against the criminal defendant other than the illegally seized evidence? Or would it apply in some situations in which there is some additional evidence?
05-1240 +++$+++ 35532 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If there's some additional evidence, we could not say was necessarily -- would necessarily imply the invalidity of the conviction. And would be -- that's not our situation.
05-1240 +++$+++ 35533 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Any additional evidence, even if it would be insufficient to support a conviction, takes -- makes make this -- would make this a different case.
05-1240 +++$+++ 35534 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would not say -- well, it would make it a different case. But if I was arguing in a case where there was a little bit of evidence, but not enough to say there's probable cause to accuse him of a crime, I would say that suppressing or eliminating the confession would necessarily imply the invalidity of any conviction.
05-1240 +++$+++ 35535 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What, what does necessarily mean? Does it mean no additional evidence? Does it mean no additional evidence that is insufficient to support a conviction? Does it mean no additional evidence that would be likely to persuade a trier of fact?
05-1240 +++$+++ 35536 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What I think it means is that there's no conviction -- what I think it should mean -- and I'm not trying to debate the dictionary, what I think it should mean is that if there is no evidence other than after -- that is excluded, to base a prosecution on, as in this case where the man is let go, because there is no evidence to prosecute him, that that does imply the invalidity of the conviction.
05-1240 +++$+++ 35537 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, in this case, let me just me more question on it. In this case, suppose there had been a witness who said at about the time when this murder took place, I saw somebody who was between, I would judge as between the age of 15 and 25, average height, average build, running away. And let's say that your client fits that description. Now would that be enough to take this case out of the rule that you're arguing for?
05-1240 +++$+++ 35538 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Unless that witness could say and the man who I saw then is the defendant in this -- is the criminal defendant, Mr. Wallace. There was an eyewitness in this case. And he could not make an in-court identification of Mr. Wallace. And the prosecutor realized that that wasn't enough evidence on which to base a criminal prosecution, and gave up.
05-1240 +++$+++ 35539 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Again, you didn't, you didn't know that at the time the arrest was made, or at the time the confession was extorted, or at the time he was bound over. You really didn't know that until the trial. For all you knew, they might have found in addition to the confession, they might have found eyewitnesss who would have identified your client. You couldn't tell that until the trial.
05-1240 +++$+++ 35540 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that would have been very unfair if they withheld -- they ambushed the defendant with --
05-1240 +++$+++ 35541 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, well -- until the trial --
05-1240 +++$+++ 35542 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Until the trial, until the process of trial began.
05-1240 +++$+++ 35543 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we didn't know that because there weren't any, because this man didn't commit that crime. We are talking -- in the hypothetical, I think we should set, start with Mr. Wallace being an innocent man, who was arrested unlawfully, who gives an involuntarily -- an involuntary false confession. And on the basis of that is held for eight and a half years, finally wins the case, is set free, and then sues the --
05-1240 +++$+++ 35544 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, but you presume in your last answer that other than that, there is an absolutely fair prosecution.
05-1240 +++$+++ 35545 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Other than the fact --
05-1240 +++$+++ 35546 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, why do we make that assumption when we start out with the allegation of a tort and a violation of the Constitution? I don't understand.
05-1240 +++$+++ 35547 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the tort is against the police officers who made an unlawful arrest and exploited it to get the evidence that was used to hold Mr. Wallace. The, the problem with saying that Mr. Wallace has to sue, as soon as he files his motion to suppress, he should have filed his Section 1983 action, would produce a multitude of 1983 actions.
05-1240 +++$+++ 35548 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about the fact -- suppose that there were even a more serious battery here, a broken limb or something. Would you have to sue for the damages for the battery right away? The police officers injured --
05-1240 +++$+++ 35549 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. If excessive force was used against somebody when they're being arrested, that's a claim that everyone agrees accrues at the time of the injury.
05-1240 +++$+++ 35550 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, what about this case?
05-1240 +++$+++ 35551 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This case would necessarily impair the validity of the conviction. If --
05-1240 +++$+++ 35552 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the conviction in Heck existed at the time of the alleged tort. And what Heck said is where you have an outstanding conviction, and you have a constitutional tort, you can't sue on that constitutional -- and where -- you cannot sue on that constitutional tort if the decision on the tort would effectively contradict your conviction. Until the conviction has been set aside. Well, this is not that situation. There was no outstanding conviction involved. So why did you have to wait?
05-1240 +++$+++ 35553 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you had to wait because it would -- it would be a fruitless act to file the case while the case -- file a Federal case while the state criminal case was pending. But --
05-1240 +++$+++ 35554 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm still, I'm still puzzled about my question. Suppose there's a battery resulting in a serious injury to the defendant.
05-1240 +++$+++ 35555 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That claim would --
05-1240 +++$+++ 35556 +++$+++ TRUE +++$+++ JUSTICE KENNED +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But there's other evidence and so forth. Can you sue for the battery at once?
05-1240 +++$+++ 35557 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You can sue and you have to sue for the battery immediately.
05-1240 +++$+++ 35558 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why is that the situation?
05-1240 +++$+++ 35559 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Why is that different? Because this --
05-1240 +++$+++ 35560 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And -- or is it just because of the assumption that the conviction might stand anyway.
05-1240 +++$+++ 35561 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well the conviction generally does stand with -- the battery generally has nothing to with the conviction.
05-1240 +++$+++ 35562 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if does, then you wait?
05-1240 +++$+++ 35563 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it is an element of the offense, you wait. Or if it is an element of what could be the defense in a criminal case. But getting back to the Heck question, in Heck the court looked to the common law for the appropriate rule to apply to the cause of action that Mr. Heck was applying. If we look to the common law for the appropriate rule for Mr. Wallace, we don't come up with the Seventh Circuit's rule of immediate accrual. We come up with the rule --
05-1240 +++$+++ 35564 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the point, the whole point of Heck was to avoid 1983 becoming an end run around habeas. But here you don't have that problem because you don't have any available relief under habeas under Stone versus Powell.
05-1240 +++$+++ 35565 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we don't know before the criminal case starts whether Mr. Wallace will receive a full and fair hearing on his Fourth Amendment claim. And until we know that we don't say Stone versus Powell would bar a Fourth Amendment claim. We don't know that the state will give Mr. Wallace an attorney who can stay awake, who can file a motion, who knows that there is a Fourth Amendment, and Mr. Wallace might end up not getting a full and fair hearing and might have a valid claim cognizable with Federal habeas corpus that --
05-1240 +++$+++ 35566 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are there many cases in which the rule of Stone versus Powell is inapplicable for that reason?
05-1240 +++$+++ 35567 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. But there are some. It is not a non-existent occurrence in.
05-1240 +++$+++ 35568 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What happens -- I'm trying to think of what the problem is for you. On January 1, your client's arrested unlawfully. Now suppose the rule was you have two years to file it, starting now. What is the problem for you? The problem is maybe in a year, or maybe less, the police start to prosecute him. In the meantime, your trial is going forward because you filed it on time. So when they start to prosecute him, you don't yet know what's going to happen. And it could happen that he's convicted and you think it's illegal because of the arrest and necessarily so. And therefore you have to stop the trial, I guess, because of Heck.
05-1240 +++$+++ 35569 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The civil trial will be stayed pending the --
05-1240 +++$+++ 35570 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That would work, I guess. They'd stop it and then they'd have to bring it -- you'd have to stop it and then you'd have to go through these other remedies and they you'd have to go back to it.
05-1240 +++$+++ 35571 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be on the district court's docket for ten years waiting the final --
05-1240 +++$+++ 35572 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that would work.
05-1240 +++$+++ 35573 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would, well, it would be a horrible --
05-1240 +++$+++ 35574 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ A mess.
05-1240 +++$+++ 35575 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a horrible mess for the district court. It would not work because --
05-1240 +++$+++ 35576 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose I modify it.
05-1240 +++$+++ 35577 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why would it be a mess? I mean, it seems to me that the district court, once it is filed -- something is filed within the two year statute, the district court can tell virtually immediately whether there are criminal proceedings that are yet to be held, and the district court can simply, it can simply stay further proceedings until those criminal proceedings are over. If there's a possibility of collateral attacks, the district court can simply say hey, are you going to file a collateral attack? And if the answer is yes, stay it further. If the answer is no, go ahead with it then. What's tough about that?
05-1240 +++$+++ 35578 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the district judge will not allow a civil case to go forward because it would allow the criminal defendant --
05-1240 +++$+++ 35579 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's the premise of my question. But I mean it seems to me to be fairly easily administered.
05-1240 +++$+++ 35580 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I mean, I, I shudder to think of 20,000 cases on district court dockets being stayed while criminal cases are being resolved.
05-1240 +++$+++ 35581 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ 20,000 might make me shudder. But we got one. (Laughter.)
05-1240 +++$+++ 35582 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We have one. The criminal defendant will be disinclined to file his civil rights case on time because it will be used against him in his criminal case to impeach his bias.
05-1240 +++$+++ 35583 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well -- explain that.
05-1240 +++$+++ 35584 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It will impeach his bias. If he, when he testifies in the criminal case, he will be cross-examined, aren't you seeking money damage from the police officers? Don't you want to make money from this case? And the jury will consider that when they weigh the truthfulness of the --
05-1240 +++$+++ 35585 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And don't you think that a civil action which necessarily has to be stayed, might be a basis for, for the court in the criminal case to limit that kind of cross-examination?
05-1240 +++$+++ 35586 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not in the Circuit Court of Cook County. That cross-examination will occur every time a civil --
05-1240 +++$+++ 35587 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are there appeals from the Circuit Court of Cook County?
05-1240 +++$+++ 35588 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are appeals and.
05-1240 +++$+++ 35589 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay, don't you -- don't you think ultimately you could get that issue resolved?
05-1240 +++$+++ 35590 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I am absolutely confident the Illinois courts at the highest level will say that is proper cross-examination.
05-1240 +++$+++ 35591 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Come -- come back here. (Laughter.)
05-1240 +++$+++ 35592 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose it is complicated. I want to suggest a modification with this suit here. You say you have to file within two years. But wait, you have -- we tolled the statute. If the person is arrested and charged, and convicted, for all the time that is going on, it is just tolled, equitably. And after the conviction, if he's acquitted, by the way, or he isn't arrested, the statute starts to run again. Now if he's convicted, as long as you have filed, proceeding to challenge the conviction, it is tolled. Now, would that -- that it seems to me would help every problem you have, and it would be called equitable tolling. And that's been suggested by judges in different forums and many states have it. And what's the problem? That just solves the problem, doesn't it?
05-1240 +++$+++ 35593 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I have four answers. I hope I can get them out. If Heck instead of adopting a rule of accrual and denying existence of a cause of action had established the Federal tolling rule, saying that these causes of action are tolled while you're in custody, that would have solved the problem.
05-1240 +++$+++ 35594 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right, well, we could do it in this case.
05-1240 +++$+++ 35595 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I, I -- the Court certainly can do it. It would require carving a hole into, into Tomiano with this --
05-1240 +++$+++ 35596 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yeah, it would require overruling our cases that say for tolling, your borrow state law --
05-1240 +++$+++ 35597 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What cases require overruling?
05-1240 +++$+++ 35598 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Unless state law is inconsistent with Federal Board of Regents versus Tomiano, I think the Court could say that. The other thing that the Court should be aware of is that the Seventh Circuit, and I think four other circuits follow the common law rule that you can't have a 1983 action about a false arrest if you have been convicted of the charge on which you were arrested. So these cases would not be brought in the Seventh Circuit and the --
05-1240 +++$+++ 35599 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it seems to me identical to the rule you are advocating but with one difference. The difference with the rule you are advocating is a judge who is going to be judge at time A with your first case, is going to have to guess whether it is in this case or not in this case necessarily related to some kind of challenge to conviction you're going to bring later if you happen to get convicted.
05-1240 +++$+++ 35600 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think --
05-1240 +++$+++ 35601 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There is no way to guess that.
05-1240 +++$+++ 35602 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think tolling, a Federal tolling rule for this cause of action, while someone in custody although a criminal conviction is, has not been resolved in favor of the defendant, criminal defendant, would be an excellent solution.
05-1240 +++$+++ 35603 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And is there anything that you are aware of that it would be contrary to? I know there are cases that say you look to states but you only look to states where the state law is, in fact, consistent with the Federal right.
05-1240 +++$+++ 35604 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I think the Court could say without overruling anything that there, in this the state law does not fully reflect or protect the Federal rights at stake here.
05-1240 +++$+++ 35605 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So then you deny the officers the purpose you have for the reason you have statutes of limitation, which is repose. They are going to wait ten years instead of the two years to find out if they are going to have to answer any claim for damages.
05-1240 +++$+++ 35606 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but the officers will also get the benefit of not being sued if there is a conviction based on the charge for which the person was arrested. That case would not be brought, especially in the Seventh Circuit where there is no cause of action -- and it wouldn't be brought anywhere because there's no damages if you are arrested and properly convicted and serving sentence. Those cases just are not going to exist; the officers would have that benefit.
05-1240 +++$+++ 35607 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought the Seventh Circuit said in -- quickly in passing that the damages would run only from the time of the allegedly unlawful arrest until the time of arraignment. That would, that would be the -- be all of your damages. If there wasn't an arraignment, whatever happens is not attributed to the seizure.
05-1240 +++$+++ 35608 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's the Seventh Circuit's view about what the cause of action is, which goes back to what is the cause of action and when does it accrue? In the Seventh Circuit the cause of action starts when you're arrested and -- either at the time of arraignment of, as they said in a subsequent case, when there's a Gerstein probable cause hearing. In I think every other circuit, the cause of action doesn't end at the time of arraignment. It continues until the time that you're released from being in custody.
05-1240 +++$+++ 35609 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You asked us to take that case and we didn't.
05-1240 +++$+++ 35610 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I asked you to consider damages but I think -- as a question of damages, and there are many issues related to damages that would have been presented in question to --
05-1240 +++$+++ 35611 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if that's the boundaries of the false arrest claim, then why does one happen later matter?
05-1240 +++$+++ 35612 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the common law false arrest claim would allow damages up until the time you were released from the imprisonment, which is not at the time of --
05-1240 +++$+++ 35613 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even on the basis of innocence?
05-1240 +++$+++ 35614 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not for a false arrest. As long as you're not convicted. So malicious prosecution, you would --
05-1240 +++$+++ 35615 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The common law would give damages in a case like this in which the release was basically governed by a suppression which has nothing to do one way or the other with the innocence of that person?
05-1240 +++$+++ 35616 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. The common law element -- malicious prosecution requires that the innocence or grounds not consistent with guilt, but there's no such element in the common law false imprisonment, which would accrue when you are released from being in prison, which would benefit Mr. Wallace in this case. When the Seventh Circuit talked about there are three alternatives that we have to choose from, the proof immediately, the case by case of when it accrues, or it only accrues at the end of the case, they didn't consider the fourth possibility of the common law rule that it occurs when the imprisonment ends.
05-1240 +++$+++ 35617 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What does somebody like Mr. Wallace do under your rule if he's in a jurisdiction where there's not a lot of discovery in criminal cases. He isn't going to know until trial whether his cause of action accrued sometime earlier or whether it waited.
05-1240 +++$+++ 35618 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But he's not going to file his civil rights claim until his criminal case is over, because he knows and his lawyer will tell him, that's going to hurt you in winning the criminal case, and you should be concerned about that.
05-1240 +++$+++ 35619 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But he's never going to know, in the case where there's no statute of limitations, he's never going to know when his criminal case is going to be over because he may never know when it's going to start.
05-1240 +++$+++ 35620 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if Mr. Wallace had been arrested and released, he would have had two years from when he was released to bring a civil rights action, that being false imprisonment
05-1240 +++$+++ 35621 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So what happens if he files a suit after one year and then after one year and 350 days he's prosecuted? His action accrued but then it didn't accrue?
05-1240 +++$+++ 35622 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would suggest that it would be the same as when someone is convicted of battery, and then 10 years later, the victim of the battery dies from the injury caused by the battery. There would be a second prosecution for murder that would not be barred from double jeopardy. I think that's Diaz versus United States. I think --
05-1240 +++$+++ 35623 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So his action accrued and maybe it's even over, but then it turns out when they bring the prosecution, it should have never have been brought because it never accrued.
05-1240 +++$+++ 35624 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I think he would have two actions. He'd have the action for being arrested and then he'd have the action later when the -- when he was seized because of the unlawful -- the fruits of the unlawful arrest. As a practical matter, though, those cases are going to arise even less frequently than the Stone versus Powell cases that are brought properly in Federal habeas corpus.
05-1240 +++$+++ 35625 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That problem is solved too if you simply say bring it, day one, you are arrested, and if in fact before the statute of limitations expires, your client is brought to the court and is going to be prosecuted. Tolled. They don't need two actions.
05-1240 +++$+++ 35626 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ A Federal tolling rule would solve these problems.
05-1240 +++$+++ 35627 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I want to be sure I understood your position with regard to Justice Kennedy's hypothetical where the defendant is arrested and excessive force is used by the police, they beat him up or something like that. When does that cause of action accrue?
05-1240 +++$+++ 35628 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At the time they beat him up, unless the beating up relates to an element of the offense.
05-1240 +++$+++ 35629 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose that they had beat him up two or three times. The first time it didn't relate to it, but then they took him into the interrogation room and they beat him up again. What about that case?
05-1240 +++$+++ 35630 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the beating up is -- if the beating up is related to, used to extort a confession and the confession is used against him, then there would be a cause of action when the confession is used.
05-1240 +++$+++ 35631 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So there would be two causes of action?
05-1240 +++$+++ 35632 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Multiple causes, yes. There could be at least two.
05-1240 +++$+++ 35633 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would he have to sue on the first one right away?
05-1240 +++$+++ 35634 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If you want to get damages for being beaten up, I would tell my client to sue right away. I would also tell my client if he's being charged with a serious criminal crime offense, to wait until the criminal case is over, because it will hurt you.
05-1240 +++$+++ 35635 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Flaxman, before you save your time, I didn't understand why you're content with Justice Breyer's tolling situation, bearing in mind that the way he put it is, so long as the -- as the criminal case is commenced within the two-year statute of limitations, how does that help you when the statute of limitations has passed? Then there's no tolling.
05-1240 +++$+++ 35636 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But criminal cases are not commenced many, many years after the unlawful arrest, as a practical matter.
05-1240 +++$+++ 35637 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And two years doesn't seem to be unheard of.
05-1240 +++$+++ 35638 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if we're talking about complicated financial crimes, that's not unusual.
05-1240 +++$+++ 35639 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're willing to let those people go?
05-1240 +++$+++ 35640 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If we're talking about the kinds of crimes that are involved with this kind of, with street crime, with murder, armed robbery, rape, the defendant is not allowed to let them run over two years.
05-1240 +++$+++ 35641 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Those are the only defendants you are concerned about?
05-1240 +++$+++ 35642 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Those are the defendants who get unlawfully arrested and are forced to give confessions. If I may reserve my time?
05-1240 +++$+++ 35643 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Flaxman. Ms. Solomon.
05-1240 +++$+++ 35645 +++$+++ FALSE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: Our submission this morning rests on the proposition that the victim of an unreasonable search or seizure has the right to sue as soon as that Fourth Amendment violation occurs. For purposes of accrual of that claim, it does not matter whether the victim is subsequently prosecuted or whether he is subsequently convicted. Accordingly, petitioner's Fourth Amendment claim accrued for purposes of the two-year statute of limitations as soon as his unlawful arrest and detention occurred, and his lawsuit filed some nine years later is time barred. The claim accrued --
05-1240 +++$+++ 35646 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask, just to get it straight at the beginning, what if the claim includes a Fifth Amendment claim for extorting a conviction and it's mixed up with a Fourth Amendment claim? What about that claim?
05-1240 +++$+++ 35647 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that the rule for the Fifth Amendment claim, I believe the Court's view in Chavez is that a coerced confession claim has as an element of the claim, the use of that claim at trial. So it would be our view if that is an element of the claim, that that claim would not accrue until trial. A claim --
05-1240 +++$+++ 35648 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What about the beating of the defendant?
05-1240 +++$+++ 35649 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly. A claim for conscience shocking techniques to obtain the confession or the excessive force to obtain the confession, both of those claims, and use of the confession at trial is not an element of those claims, and those claims would accrue at the time of those acts, just like the Fourth Amendment rule that we urge in this case. Only where there is a trial right and use of some evidence at trial, suppression of evidence at trial, something of that order, if the trial right is implicated, that claim would not accrue until at trial. That is different from the Fourth Amendment claim, of course, because --
05-1240 +++$+++ 35650 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Miss Solomon, do I gather from your response to Justice Stevens about the Fifth Amendment claim, that under Chavez it wouldn't accrue until it is used at trial, is this case therefore a pleading slip on petitioner's part? That is, if he had alleged a Fifth Amendment claim based on the coerced confession, then he wouldn't have a statute of limitations problem?
05-1240 +++$+++ 35651 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He brought two claims in his criminal case. He lost them both in the Illinois Circuit Court at the time of his suppression motion. He pursued only one of those on appeal to the Illinois Appellate Court, and the circuit court made findings that the confession was voluntary. So at the outset, there were problems with that claim going into Federal court.
05-1240 +++$+++ 35652 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's a puzzling feature of it, too, because I thought at the end the second time around, the Court of Appeals held that the confession was no good.
05-1240 +++$+++ 35653 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Illinois Appellate Court overturned the conviction on the basis that it was obtained through use of a confession in violation of the Fourth Amendment only. The only findings that have ever been made regarding Mr. Wallace's confession, the voluntariness of the confession, were made in the Illinois Circuit Court, and the finding was that the confession was voluntary, that it was not coerced. That finding has never been reviewed. Petitioner did file both Fourth and Fifth Amendment claims in this civil case, but we did not assert statute of limitations to the Fifth Amendment claim for precisely the reasons that I indicated to Justice Stevens. And for that reason, although the question was presented in the petition, we did not acquiesce in the Fifth Amendment portion of question 1 of the petition, and the court did not grant the Fifth Amendment claim. So I do not believe -- a short answer, sorry -- I do not believe it was a pleading error. It is simply that that claim as the litigation developed is not before this Court now, but not through a simple pleading error. It is a far more weighty problem than that.
05-1240 +++$+++ 35654 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But if the Fifth Amendment claim were before us, do I understand you to have said before that the Fourth Amendment claim of false arrest would also be subject to litigation as part of the Fifth Amendment claim or under the umbrella of the Fifth Amendment claim, so that the statute would not have run on that?
05-1240 +++$+++ 35655 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. If I indicated that, I definitely misspoke. In our view, all Fourth Amendment claims except for those that do negate an element of the offense, and those are described in footnote 6 of Heck, with that exception, all Fourth Amendment claims should be regarded as accruing at the time that the act that actually violates the Fourth Amendment occurs.
05-1240 +++$+++ 35656 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well then, my question is going to be along the same lines. Suppose -- I assume this is a rather frequent case -- the confession is alleged to be the product of a beating. The two are merged. If we have to wait for the Fifth Amendment claim anyway, then as a matter of policy, matter of convenience, why don't we wait for the Fourth Amendment as well?
05-1240 +++$+++ 35657 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the rule of accrual is that the act -- the claim accrues when the plaintiff experiences an injury.
05-1240 +++$+++ 35658 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, we're making up the rule of accrual, Ms. Solomon. I'm asking, if we have to wait for one, why not wait for the other?
05-1240 +++$+++ 35659 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, with respect, Justice Kennedy, I don't believe the Court is making up a rule of accrual. I think those rules are quite well settled. Cases like Ricks and Chardon make clear, and the Fourth Amendment cases make clear that a Fourth Amendment violation, unlike the Fifth, where evidence is used at trial, the Fourth Amendment claim violation is fully accomplished at the time of the illegal search or seizure. Anything --
05-1240 +++$+++ 35660 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Who is the defendant in a Fifth Amendment claim? Is it the policemen who extracted the confession or is it the prosecutor who introduced it at trial, since that is the offense?
05-1240 +++$+++ 35661 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the prosecutor would be absolutely immune, of course.
05-1240 +++$+++ 35662 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right.
05-1240 +++$+++ 35663 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And some of those cases are brought against the police officers. But, the reasons that would suggest a certain accrual date for the Fifth Amendment claim are very different from the reasons that dictate the accrual of the Fourth Amendment claim at the time -- the only action the petitioner alleges violated the Fourth Amendment in this case was when his detention at the police station, which was consensual at the outset, became unconsensual, became involuntary at some point before he confessed.
05-1240 +++$+++ 35664 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But if he had also brought a Fifth Amendment claim, your view as I take it would be as follows: Number one, his Fourth Amendment claim, the running of the statute, the Fourth Amendment claim would be unaffected by that, so that would have to have been brought within the two-year period.
05-1240 +++$+++ 35665 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
05-1240 +++$+++ 35666 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Number two, I'm assuming, and this is what I want you to tell me whether my assumption is right -- I am assuming that if a Fifth Amendment claim were brought by -- no, strike the assumption. You, I take it, would -- let me ask a different question. I take it you would agree that so long as a criminal case was pending, that it would be sensible and maybe required for the court simply to abstain from any proceedings on the Fourth Amendment claim.
05-1240 +++$+++ 35667 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do -- our position is that they do occur when they happen and they must be filed within the limitations, yes.
05-1240 +++$+++ 35668 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you would agree that the court, if there's a criminal case going on, I take it you would agree that the court should not proceed to trial in the 1983 action.
05-1240 +++$+++ 35669 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If there is a Fourth Amendment claim being raised in the criminal case, and of course, it might not be, but that is a very easy --
05-1240 +++$+++ 35670 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's the problem. I don't know if it is easy. It seems to me if you take your point of view, now, on January 1, some, let's call it an unconstitutional action allegedly. So, I don't want to distinguish for the moment between Fourth and Fifth. On January 1 the event occurs. Then you say you have two years to file your claim in the Federal court of a violation of 1983, for example. Then that happens. Let's say two months later they file it. The defendant files it. A month after that, there is a state criminal proceeding. Now, you're the Federal judge. What's supposed to happen? It sounds to me as if the judge sitting there, under your theory, is going to have to make a decision. He's going to have to say now, is the kind of claim that's being argued in my court that the policemen did something unconstitutional, if I say that's correct, that the plaintiff wins, I have to go on to say does the correctness of that, there was a violation, mean that the conviction if there is a conviction in the state court later, will necessarily be vitiated. If the answer to that question is yes, he shouldn't go ahead; is that right?
05-1240 +++$+++ 35671 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, that is correct.
05-1240 +++$+++ 35672 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. If that's correct, we're getting to exactly the same problem, whether we do it through a set of abstention rules, which we have to have Federal abstention rules or it won't be worked out properly, or we have to have Federal tolling rules. I don't see any way to get to a sensible result here without either having clear abstention rules, just as you say, having clear tolling rules, as I suggested before. Am I right? If I'm wrong, let me know why; and if I'm right, which do you prefer?
05-1240 +++$+++ 35673 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think those are essentially the two choices, with one caveat. We would call it an accrual rule as opposed to a tolling rule, for the reason that this court has always respected the tolling rules that states have whereas accrual is a Federal question. But with that slight caveat, I do believe that those are the two main options. But I don't believe the Court should be indifferent as between them. There are very serious practical reasons weighing down on our rule, which is a rule of immediate accrual and filing not immediately, of course -- the case need only be filed within the period of the statute of limitations. Thereafter it might well be that some cases, maybe many cases, maybe nearly all cases, would need a stay of some sort while the Federal -- excuse me -- while the criminal case is ongoing. But that question, figuring out whether a stay is warranted in order to avoid interference with a ongoing state prosecution, is far easier to figure out than whether the evidence is the only evidence, whether it's critical evidence, whether there was other evidence.
05-1240 +++$+++ 35674 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I suppose -- correct me if I'm wrong -- when the district court wants to determine if he should hold something in abeyance, this is not necessarily abstention; this is what courts always do when there are multiple actions. Other action pending is a general ground for a court to stay its hand.
05-1240 +++$+++ 35675 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's exactly right, Justice Kennedy, and it's also --
05-1240 +++$+++ 35676 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I suppose it would make a difference to the officers, a principle of equitable tolling. They don't know if they're going to be sued for 10 years, 12 years, however long. Under an accrual rule with a stay, they know whether they're going to be facing a civil action or not.
05-1240 +++$+++ 35677 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is the second major advantage that we see to our rule, Chief Justice Roberts.
05-1240 +++$+++ 35678 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you do it with a stay, I mean, I see that disadvantage. If you do it with a stay, the Federal judge is going to have to sit there with the papers in front of him, look at that evidence, think what's going to happen in the trial at the criminal case which I'm not quite certain yet, and then make a determination. It sounds like a very difficult decision and it sounds like sometimes they'll get it wrong, sometimes they'll get it right. The defendant might be arguing two different things, you know, one in the state court to try to get them to go ahead, and the other to try to get them to go ahead in the Federal court. What do you --
05-1240 +++$+++ 35679 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Accepting your earlier construct where there really are essentially two rules, we either delay accrual or we --
05-1240 +++$+++ 35680 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you delay accrual by tolling, you do have the disadvantage that in some instances the policemen won't know for quite a while whether the case is being brought. That's true; and in the other instance, he won't know for quite a while how the case is going to come out, which may be worse. But you don't have any uncertainty. You have no uncertainty. You would know once the man is released. It's no tolling. Once he's convicted, it's tolled. Then the conviction comes in. Not tolled until they bring a proceeding.
05-1240 +++$+++ 35681 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The rule that we propose, which is immediate accrual coupled with a stay of some sort if the Fourth Amendment claim is being actively litigated in the state court at that time, has two advantages. The first is that it does serve the purposes that all statutes of limitations serve, which is it puts the defendant on notice you are now the defendant in a lawsuit, you should be marshalling your evidence, you should be preserving your records, and you are not in repose. This Court has respected those as very important interests. They are absolutely not served by a rule of delayed accrual. At the same time, the rule to allow a stay where necessary - as I indicated, it's not going to be all of the cases, and it's far easier to figure it out. The Federal district court figures it out by having the defendant, the criminal defendant, who is a plaintiff in his court, come in and is asked a question: Are you currently --
05-1240 +++$+++ 35682 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ They're not going to waste a lot of time figuring out whether to grant a stay or not when you have a criminal prosecution pending in state court. I think in most cases -- I mean, it's not like they're looking for cases. They're going to say in most cases: Stay granted, come back when this is over. They don't have to be -- unlike perhaps the situation with an equitable tolling rule, it doesn't matter whether they're precisely right or wrong. I mean, if it's close enough just stay it, and it doesn't seem to me there's much prejudice from that.
05-1240 +++$+++ 35683 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's correct, Your Honor, and we wouldn't have any objection to a rule that --
05-1240 +++$+++ 35684 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But isn't there this practical problem? I think what you say fits together beautifully with regard to the law, but isn't it true that this will give an incentive in every criminal case for the defendant to file a 1983 action. So we may multiply the number of Federal cases that are filed and then sit there while a criminal case proceeds.
05-1240 +++$+++ 35685 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the assumption, Your Honor, should be that the number of cases is going to be the same either way. It's just a question of when are they filed and, moreover --
05-1240 +++$+++ 35686 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, if your opponent's rule is adopted, they wouldn't file unless -- if they get convicted and the conviction stands up, the case would never be filed.
05-1240 +++$+++ 35687 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's curious that they make that argument, because of course every victim of a Fourth Amendment violation has the right to damages for at least the invasion of their privacy, for the antecedent conduct between the time of arrest and charging. At a minimum, Mr. Wallace had that coming to him because he was, according to the Illinois appellate court, illegally seized.
05-1240 +++$+++ 35688 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The thing I just want you to comment on is, my thought is every person arrested has a potential, and something follows and so forth, has a potential Fourth Amendment claim, even though he may not have one on the merits. It just seems to me that there's a potential here of an awful lot of what may turn out to be frivolous claims filed, but it would seem to be routine procedure for defense lawyers who want to make a suppression motion to say, well, I better file my 1983 case at the same time. So you might get literally hundreds and hundreds of cases.
05-1240 +++$+++ 35689 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect, Your Honor, we'll take that chance for the benefits that the statute of limitations does bring to the officer. And as far as the burden on the court, whether all cases are stayed or some cases are stayed, of course, we're content to have this Court or the district court handling the case figure that out. But the main point that I would make is that a rule of delayed accrual wholly undermines the purposes of the statute of limitations, and where the plaintiff's interest, the claimant's interests, can be served, as I indicated, at a minimum every victim of a Fourth Amendment violation has the right to some damages. That is actually precisely why we say that Fourth Amendment claims do not necessarily imply the invalidity of the conviction.
05-1240 +++$+++ 35690 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I had missed Mr. Flaxman's point that this would an advantage to the prosecutor to say, aren't you going to make a lot of money about this case? My initial reaction as the defense counsel, I would love that comment. I would tell the jury: Of course, it's our duty as counsel to point out that my client was beaten, he was terrified, he was beaten again, he had a false confession, and the damages we're not interested in; we'll get much more damages if you convict and we show this 15 years later because the policemen lied as they always do. You know, you hear it.
05-1240 +++$+++ 35691 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It may be not in a --
05-1240 +++$+++ 35692 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But he has tried more of these cases than I have and he indicates this is a serious concern.
05-1240 +++$+++ 35693 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He has tried way more of them than I have as well, and I can't speak to that specifically. It's not an argument that was ever made in the briefs. But again, I have no reason to believe that the Federal district court can't take account of whatever it needs to take account of in order to avoid --
05-1240 +++$+++ 35694 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, no. This is the Cook County. This is the Cook County court.
05-1240 +++$+++ 35695 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Yes, I understand. But all that has to happen, of course, is that the complaint be put on file in the Federal court. It's notice pleading. It can be a very, very long complaint.
05-1240 +++$+++ 35696 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, but he says the fact of the complaint the prosecutor's going to use in order to show that they're trying to profit from a false claim of a beating.
05-1240 +++$+++ 35697 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but as I indicated, every victim of a Fourth Amendment rights, even those who are guilty, even those who are convicted -- that's the Herring case. Herring exactly shows --
05-1240 +++$+++ 35698 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, but the point is if the complaint is filed then the prosecution can makes that point.
05-1240 +++$+++ 35699 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would imagine that it would cut both ways in many cases, Your Honor. I'm sorry, I can't speak to it more specifically than that.
05-1240 +++$+++ 35700 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does your position in this case leave any reason at all for equitable tolling?
05-1240 +++$+++ 35701 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does, Your Honor, absolutely. Equitable tolling is always available in an extraordinary case when the plaintiff could not put a complaint on file within the period of the statute of limitations. And unlike the accrual question, as indicated a moment ago, the tolling is governed by the states. In this case, for example, because Mr. Wallace was only 15 years old at the time of the arrest, his claim was tolled. He actually had nearly four years beyond the two-year statute of limitations to put a complaint on file and it still would have been toll -- would have been timely. He filed outside even that time. Illinois does not toll for prisoners, but many states do, as the Court indicated in the Hardin case. So there's all sorts of tolling available, or could be under state law. Mr. Wallace has actually never urged tolling in this case and I assume that that's because there is no basis for that under state law. He did get the advantage already of the time when he was a minor and there is no other basis under Illinois law that would allow him any basis for tolling. But of course, tolling is proper when the plaintiff does not know and could not know that his rights were violated. If Mr. Wallace was illegally seized, he was right there when it happened. He might not have known that a court would ultimately accept his argument on that, but of course the plaintiff never has a right to be told that he has a successful claim before he brings that claim.
05-1240 +++$+++ 35702 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there any remedy that Illinois law provides for a case like this where a person spends, what was it, eight years in prison and is ultimately released because the state never had enough evidence to try him in the first place?
05-1240 +++$+++ 35703 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In many cases, the state law of malicious prosecution will provide a remedy. Of course, in Illinois and in all states, it requires favorable termination. In this case, of course, petitioner conceded long ago that he cannot show favorable termination because the circumstances under which the criminal case ended did not -- were not consistent with a favorable termination. But, of course, he would have had a Fourth Amendment claim if he had filed it timely. He would have had a state law malicious prosecution claim if he had been able to show favorable termination. In states that don't have malicious prosecution, perhaps there would be a due process claim as well. The result that there are no damages available to somebody when the conviction is overturned solely by operation of the exclusionary rule, however, should not be troubling because the conviction itself, of course, was not an independent violation of the Constitution. Petitioner did receive the benefit of the exclusionary rule. His conviction was overturned. We're not aware of any case indicating that deterrence purposes would require both the exclusion of evidence and a damages claim.
05-1240 +++$+++ 35704 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would it ever be proper for a district court to insist on proceeding to the merits of the claim, to dispose of the merits of the claim, while the prosecution was pending? Suppose the district court thought that it was seeing too many of these claims and it wanted to get to the bottom of them?
05-1240 +++$+++ 35705 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in our experience the district courts don't tend to want to go ahead. But I would suppose that if the -- if the court did, rules of comity are sufficient to allow the state courts to have the first crack at issues that are arising in the criminal cases, to be the ones that --
05-1240 +++$+++ 35706 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ We haven't written about that other than in Heck explicitly and implicitly, and in Younger? That's about it?
05-1240 +++$+++ 35707 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In Heck and in Younger. There's the concurrence in Deacons against Monahan indicates that a claim for damages should be stayed and not dismissed or gone forward with. Justice White's concurrence specifically addressed the difference between dismissing and going forward with the claim. Of course, the footnotes 8 and 9 in the Heck opinion are very powerful indications of the weighty reasons. We have no reason to think that the district court would want to charge ahead with a claim that would -- with a case that will only get simpler if it waits for the state court proceedings to conclude, as well as of course the comity and respect for the state courts. In this case, of course, as I mentioned, the -- Mr. Wallace always had a claim available to him for his initial seizure regardless of the outcome of his criminal prosecution. If he wanted to seek damages for that prosecution and our primary submission, part one of our brief is even assuming those damage might be available on a Fourth Amendment claim, he was nevertheless obligated to bring that claim within the period of the statute of limitations, because otherwise it would be time barred. In our view, petitioner does not have one claim for that arrest and another claim for his trial and prosecution. He has one claim for a Fourth Amendment violation with two elements of damages. But mounting future or delayed damages do not delay accrual. Even where the plaintiff does not know the full extent of his injuries, he still must sue within the period of the statute of limitations. In fact, petitioner does not cite a single case including the ones newly arrived in the reply brief that uses either his accrual rule or his damages rule to award damages for the entire time of a lengthy period of incarceration. And as I indicated petitioner conceded long ago that he cannot show favorable termination. And although he could have obtained some damages had he brought his claim timely, his claim did accrue he was seized and not when the charges --
05-1240 +++$+++ 35708 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you agree with Judge Wood that the limitation on damages would be from the period, from the time of the arrest until the arraignment? That would be the measure and nothing after?
05-1240 +++$+++ 35709 +++$+++ TRUE +++$+++ MS. SOLOMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A number of courts have reached that result, Your Honor. Footnote 25 recites five court of appeals decisions to that effect. But our primary submission in this Court is that regardless of the damages that are available on a Fourth Amendment claim, that the mounting of damages did not delay accrual, and without a timely claim, it doesn't matter what damages the plaintiff is seeking. The reference in Heck to a claim for damages for unconstitutional conviction, we take to be a shorthand for a claim of some sort of constitutional violation that can be brought through the vehicle of Section 1983 that would enable the plaintiff to recover damages for the incarceration. 1983 of course itself does not create any substantive rights. The plaintiff needs an underlying claim and in this case of course the plaintiff only has the Fourth Amendment claim. We do have, in our brief and argument why the Fourth Amendment should not be regarded as allowing those damages, but our primary submission and we do think the Court can decide the case without -- without reaching that issue. The only date to delay an accrual in this case was the date that the charges were nol prossed. But that date is meaningless for the Fourth Amendment and it is therefore meaningless for accrual. We would the judgment be affirmed.
05-1240 +++$+++ 35710 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Ms. Solomon. Mr. Flaxman, you have four minutes remaining.
05-1240 +++$+++ 35712 +++$+++ FALSE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The issue that has been sitting in this case like the elephant in the room is what is Mr. Wallace's cause of action? Is it a cause of action for being seized until he was arraigned? Or is it a cause of action for being seized for the eight and a half years that he was locked up until he was, the criminal case was resolved in his favor? My sister argues that it was just, the Federal remedy is only until you're being arraigned, and that the state remedy for malicious prosecution doesn't exist if the Seventh Circuit has construed Illinois law to say that there is no malicious prosecution when you win the Federal case, when you win the criminal case, because the evidence has been suppressed. The false imprisonment, state false imprisonment was dismissed by the district court, under his reading of Illinois law that the cause of action accrued at the time of the arrest. Not at the time he was released. And the Seventh Circuit when that issue was raised on appeal to them in a brief by both sides chose to reject it without discussion. What, the cause of action that respondent proposes is none, for the eight and a half year seizure. There is no state cause of action in Illinois. And there is no Federal cause of action. It is just tough. You are seized for eight and a half years, and you can't go to state court, you can't go to Federal court. You should have sued immediately after you were arrested to get a little bit of damages, but that's all you can get. And have a nice day; we're sorry. That, I don't think is consistent with Heck. I don't think it is consistent with this Court's jurisprudence about the meaning of Section 1983. I don't think it is consistent with the Fourth Amendment and it should not be the rule that the Court adopts. The statute of limitations problem isn't really a problem because all of the evidence that's material to the legality of the arrest, to the legality and the -- whether the confession was the proximate -- was proximately caused by the arrest or proximately caused by the incarceration, has been developed in the criminal case. When there's very strong interest in seeing that the facts are fully determined and fairly determined for both sides. It is not that the police officer who sued eight -- eight and a half years later is much less is much less prejudiced than Mr. Wallace is, who comes out of prison after eight and a half years with no remedy. The questions about the multiple causes of action that can arise: if you're beaten, you have to sue immediately after you're beaten; if you're beaten but a confession is extorted from you, your right to sue starts with the confession is used against you at trial -- and if there's some constitutional violation which necessarily impairs the conviction, then you can sue after you successfully defended a criminal case -- is really an administrative nightmare that really could be solved by a Federal tolling rule that all Section 1983 cases are tolled; the statute does not start to run until the criminal case has been resolved. In most cases, then, instead of being filed in district court --
05-1240 +++$+++ 35713 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That in effect is saying we can't have a statute of limitations rule; we're just going to laches, we're just going to an equitable rule.
05-1240 +++$+++ 35714 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-1240 +++$+++ 35715 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We're just throwing up our hands and saying there is statute of limitations statute of limitations.
05-1240 +++$+++ 35716 +++$+++ TRUE +++$+++ MR. FLAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, there is a statute of limitations. It starts to run when the criminal case is over. That will weed out all of the really nonsensical cases that would otherwise be filed under respondent's rule, when you file the 1983 action the same day you file the motion to suppress and the district judge says well, this goes on my state calendar of 5,000 cases and the clerk's office is troubled with collecting the $350 filing fee in installments, and the jails are troubled by paying those installments every time there's $10 in the prisoner's account. It's -- it would -- there are more important things for the courts, the prisons to do. Thank you.
05-1240 +++$+++ 35717 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Counsel. The case is submitted.
05-1256 +++$+++ 35721 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first this morning in Philip Morris v. Williams. Mr. Frey.
05-1256 +++$+++ 35723 +++$+++ FALSE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: This case is here following this Court's remand to the Oregon courts to reconsider their decision in light of State Farm, a task at which we submit the Oregon courts completely failed. It presents two independent but thematically interrelated issues, both of which implicate what the Court said in State Farm, which is that, and I quote, "courts must ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered." Now significantly, Respondent defends neither -- oh, I should stop for a minute and describe the issues. So the first issue is whether the Oregon Supreme Court properly held that Philip Morris was correctly denied an instruction which would have told the jury that it was not to punish for harm to nonparties. The Oregon Supreme Court held that that Official instruction was legally incorrect, it was proper for the jury to punish for harm to nonparties, and therefore the instruction was correctly denied.
05-1256 +++$+++ 35724 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Frey, are you talking about what is numbered, is it number 34?
05-1256 +++$+++ 35725 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1256 +++$+++ 35726 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's the --
05-1256 +++$+++ 35727 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The key paragraph from number 34 which is set forth at page 4 of our brief, as well as numerous other places in the materials. It says, the size of any punishment should bear reasonable relationship to the harm caused to Jesse Williams by the defendant's punishable misconduct. Although you may consider the extent of harm suffered by others in determining what that reasonable relationship is, you're not to punish the defendant for the impact of its alleged misconduct of other persons who may bring lawsuits of their own, etc.
05-1256 +++$+++ 35728 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You don't think that would confuse the jury if they are first told that they may consider the extent of harm suffered by others, and then the next instruction seems to say they can't?
05-1256 +++$+++ 35729 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't. First of all, I don't think that's what it says, and I don't think it would confuse the jury, and I'm confident that with that Official instruction, counsel could explain it. But let me stop here, because I know this was something that Justice Scalia expressed some uncertainty about in the State Farm argument, and that the Oregon Supreme Court said they didn't clearly understand. To consider the conduct means to evaluate it in connection with assessing the blameworthiness of the conduct being punished.
05-1256 +++$+++ 35730 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't that the problem? If the instruction had said that, you would have a very different instruction, and I'm bothered by the instruction too for just that reason. It says you may consider, and if I were a juror parsing the instruction, I would say, "why? You've just told me I'm not supposed to punish them."
05-1256 +++$+++ 35731 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the second part of it is, what punishment means is what would be done in a class action, for instance, to impose punishment for all the harm suffered by Oregon smokers.
05-1256 +++$+++ 35732 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. This is an argument you're making to us, but I don't know how a juror is supposed to figure this out.
05-1256 +++$+++ 35733 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, let me say a couple of things about that. First of all, the Oregon Supreme Court did not rely on this aspect. It held that it was Official proper to punish for harm to nonparties. Now this, in our view, this instruction, and there's always a danger when you add words to an instruction that you will add something that a court will find was incorrect and therefore deny the instruction, even though the essence of it was correct.
05-1256 +++$+++ 35734 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where did the Oregon Supreme Court say it was proper to punish for harm to nonparties? Your brief quotes something to that effect, but -- the sentence on page 18(a) of the appendix to the petition. It says, what the Oregon court said is, Philip Morris asserts that Campbell prohibits the State acting through a civil jury from using punitive damages to punish a defendant for harm to nonparties. The Oregon Supreme Court on its own, I think, didn't put it in terms of harming particular nonparties, but to exposing Oregon residents to the risk of a deadly disease.
05-1256 +++$+++ 35735 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would refer the Court to pages 20(a) to 21(a) of the appendix, where the court discusses, comes to its conclusion on this point. And it says, the instruction would have prohibited the jury from punishing the defendant for the impact of its alleged conduct on other persons even if those persons were Oregonians who were harmed. But on 28(a) it says, Official because the proposed jury did not accurately reflect the law, this is not a statement about Philip Morris's position, the trial court did not commit reversible error when it refused to give it. So I think the court was quite clear in saying -- let me complete my answer, because I think considering it moves the needle along the scale of allowable punishment for the harm to Jesse Williams, but it does not abandon the principle of proportionality to that harm, whereas punishing for it is what you would do in a class action. You would punish for all the harms to all the Oregonians. This is a one-way class action in which Philip Morris was exposed to global punishment by the jury without any of the protections of a class action. So --
05-1256 +++$+++ 35736 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let me -- let me -- let me focus the problem that I have right now this way. If I look at the Oregon Supreme Court opinion, and particularly at the point that you mention in 20 and 21, I have to say I, I read the opinion the way you read the opinion. I read them the same, just what you claimed they were saying. The difficulty that I have is because I think the instruction that was proposed on behalf of your client was not a clear instruction, I have great difficulty in seeing how I could find that it was error to refuse to give the instruction. Official
05-1256 +++$+++ 35737 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-1256 +++$+++ 35738 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So my problem is, if I think they really did have the wrong view of the law but the issue was focused at the trial court by a request for an instruction which I think was properly denied, what do I do? Do I concentrate on what they said in the opinion or do I concentrate on what I think was the deficiency of the instruction?
05-1256 +++$+++ 35739 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think what you do is decide the Federal issue, which I think is whether they were correct in the legal proposition that they asserted.
05-1256 +++$+++ 35740 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But then they would respond, when they made that, when they gave that explanation in the Oregon Supreme Court, they were responding to a claim of error which was focused and raised at the trial level by the request for an instruction, which strikes me as probably an unsound instruction, an unsound request.
05-1256 +++$+++ 35741 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I guess we could leave it up to them whether they want to disallow the instruction for a different reason, but the fact is they disallowed it for the reason that you say.
05-1256 +++$+++ 35742 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-1256 +++$+++ 35743 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And we can say that is Official error and remand it to them. That might not make you very happy, but it would be up to them whether or not --
05-1256 +++$+++ 35744 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-1256 +++$+++ 35745 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In effect, it would give you another chance in Oregon.
05-1256 +++$+++ 35746 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I do want to question the premise. First of all, the instruction says basically what this Court said in BMW, which is where it drew precisely that distinction.
05-1256 +++$+++ 35747 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It was a good thing we weren't instructing a jury.
05-1256 +++$+++ 35748 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think there is -- the concept may be abstract, the difference between considering and punishing, but it's quite clear in this Court's jurisprudence and I think it can be made quite clear to the jury with the benefit of the proper instruction, and I don't -- I don't have any --
05-1256 +++$+++ 35749 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, I do too. I don't have any trouble with the distinction.
05-1256 +++$+++ 35750 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If we had this instruction, if we had this instruction which I believe is correct, there is nothing incorrect about this instruction. It is correct that the jury may consider. We are not challenging that the jury may consider the conduct and Official may determine that the conduct --
05-1256 +++$+++ 35751 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it doesn't answer the question, if the juror were to speak up. It doesn't answer the question. Consider for what? How? Why am I supposed to be considering it when you've just told me not to punish?
05-1256 +++$+++ 35752 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think the instruction said --
05-1256 +++$+++ 35753 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or not punish for other --
05-1256 +++$+++ 35754 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the instruction says that you are to consider it in connection with determining the reprehensibility of the conduct.
05-1256 +++$+++ 35755 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. If it had said that, I would have no trouble with it. What it says is, you may consider it in determining what the reasonable relationship is between the harm caused to Jesse Williams and the amount of punitive damages assessed. I don't see how injury to others can have any bearing upon whether the punitive damages bear a reasonable relationship to Jesse Williams' harm. That's my problem with it.
05-1256 +++$+++ 35756 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they do, because conduct that is more blameworthy, in terms of determining, as this Court has said in all its cases, and I know you don't agree with the whole inquiry -- Official
05-1256 +++$+++ 35757 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't.
05-1256 +++$+++ 35758 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But as this Court has made quite clear, the reprehensibility of the conduct is an important factor in determining where along the scale of reasonable relationships in a particular case you might, the relationship might be reasonable. So, more conduct that is calculated to harm large numbers of people can be found more blameworthy as to warrant a higher proportion, a higher relationship between the punitive and compensatory damages.
05-1256 +++$+++ 35759 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And when you do that, counsel, aren't you punishing the defendant for the harm to others? You're going to award a higher multiple with respect to the damages --
05-1256 +++$+++ 35760 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
05-1256 +++$+++ 35761 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- based on the conduct to others. Why wouldn't a normal juror think --
05-1256 +++$+++ 35762 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think you are --
05-1256 +++$+++ 35763 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Excuse me. Why wouldn't a normal jury view that as punishing the defendant for the harm to others?
05-1256 +++$+++ 35764 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that the semantical quibbling is not something that the jury would have difficulty with, in my opinion. But let me try to explain the difference this way. If you're considering Official the conduct in relation in determining what is the proper punishment for the harm to Jesse Williams, you should come up with a number that can be properly replicated in case after case if other juries arrived at the same conclusion about the conduct. If you are punishing for the conduct, you should come up with a number that precludes further punishment for the same, punishing for the harm, further punishment for the same harm, for the same causes of action for punitive damages that various Oregonians had. So there's a fundamental difference in that respect between considering and punishing for it, and the Court has said repeatedly, and I don't think we can contest this, that the character of the conduct can be considered in determining the proper level or allowable level of punitive damages, that included the character of the conduct is the intended scope of the harm, if it's an isolated incident, if it's a consistent pattern of misconduct. So, I don't think we could properly have told the jury that they may not consider the conduct without getting ourselves in serious trouble. So -- and I don't, I don't think, and the difference is potentially enormous. If you think about a jury that was deciding a punitive damages class action and a jury that was told that they had to punish for the harm to the particular Official plaintiff in the, in the particular case, it's, it's obvious that the results would be vastly different in those cases. And the problem we were worried about was that the jury would think of itself as the punishment agency to impose statewide punishment for the harms to all Oregon smokers who were deceived by Philip Morris --
05-1256 +++$+++ 35765 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, Mr. Frey, let me ask you a question. Suppose this was a criminal case and the defendant was being punished for crime A and the judge in working out the sentence realizes he also committed crimes B, C, D, and E. He could take those into account in determining the extent of the sentence given for crime A. Why isn't that similar?
05-1256 +++$+++ 35766 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is similar, but what he can't do is punish for crimes B, C, D, and E. Suppose we had a mail fraud prosecution --
05-1256 +++$+++ 35767 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And if there was a second -- the same defendant got convicted again for crime X. At that sentencing the judge could again take into account the harm to defendants B, C, and D.
05-1256 +++$+++ 35768 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true. That's certainly true. That's why our point is that it's one thing to produce a punishment that can properly be replicated in case after case without producing an excessive total punishment. It's another thing to punish in case after Official case for the same harms.
05-1256 +++$+++ 35769 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's not the same harm if it's a different defendant or a different plaintiff in the second case. You're punishing him for the harm to be this time, and you can -- just as in a criminal case, why can't you in both cases take into account that, the harm to the class, to the public at large?
05-1256 +++$+++ 35770 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If this was a mail fraud prosecution for defrauding Jesse Williams into buying cigarettes and the punishment was five years for that, the judge could consider in setting the punishment between zero and five the fact that this was part of a scheme that was intended to or may have deceived large numbers of other people in setting the punishment between zero and five. What the judge cannot do and what we were worried the jury would do here and what we think the size of its verdict may suggest it actually did here is to think that they could punish it that time not just 5 years, but 10 or 15 or 20 for all of the other punishments, for all the other wrongs that they find to have been done.
05-1256 +++$+++ 35771 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In that respect, how does the -- there may not be a definitive authority by this. Oregon says that if a corporation commits manslaughter it's required to pay up to twice the amount Official the corporation gained by committing the offense --
05-1256 +++$+++ 35772 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1256 +++$+++ 35773 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- is my understanding. Suppose a corporation in a hypothetical case commits five manslaughters. Would they be liable -- and gained for $1 million. Would they be liable for twice a million dollars in every manslaughter case?
05-1256 +++$+++ 35774 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. But I think the disgorgement argument that has been made by the other side suffers from exactly the same problem as the global punishment problem. That is, you can't -- if you disgorged in every case all the profits that were earned from selling cigarettes to Oregonians and to Oregonians became who sick --
05-1256 +++$+++ 35775 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But Mr. Frey, we don't know what Oregon law is on that point. They do have a law that the Oregon court thought meant that they must adjust in the next case. And how would you deal -- would it be different if Oregon, as many States, said part of that punitive award goes not to the plaintiff, but to some State fund?
05-1256 +++$+++ 35776 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't, I don't think that -- our complaint is not that the plaintiff is getting the money. Our complaint is with how much we're being punished and what the procedural regime is that has led Official to punishing us.
05-1256 +++$+++ 35777 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if the law in Oregon were, plaintiff number two, you don't get punitive damages or you can get only the difference between what the jury awarded you and what Philip Morris has already paid out in punitive damages?
05-1256 +++$+++ 35778 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first of all, that's not the law in Oregon.
05-1256 +++$+++ 35779 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We don't know what it is. We haven't had the second case.
05-1256 +++$+++ 35780 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we have no -- well, the Oregon Supreme Court did not rely on this, on this statute, for purposes of dealing with the harm to others, harm to nonparties problem. The statute does not require giving credit, only consideration. Even if it, even if it did, it operates as a one-way ratchet. That is, you keep making awards until you've reached the maximum that would be allowable for all the conduct even though juries, properly instructed, might have awarded substantially less and even though many juries might exonerate the defendant totally, as many juries have in tobacco cases. So the Oregon regime is, is a formula for having what amounts to excessive punishment or at least unfair punishment. And finally, the, the 30.925, which was Official referred to by the court of appeals, requires submitting this evidence to the jury and, as the trial court said in this case at page 195a of the joint appendix, there is no telling whether submitting the prior awards to the jury would produce higher or lower awards in this case. So I think it's an entirely illusory protection to rely on that.
05-1256 +++$+++ 35781 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can I ask you -- are you finished?
05-1256 +++$+++ 35782 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. I was going to say that because our concern is structural with the design of the Oregon system as it's been approved by the Oregon Supreme Court, I don't think this inadequate remedy can save that system.
05-1256 +++$+++ 35783 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I wanted to know what you think about a suggestion that I got from something that Justice Scalia said. I don't know whether he was making it or not, but I'll make the suggestion and see what you think. Suppose that this case -- suppose we were to say, there are many issues in this case, some of them very difficult, but one thing we're certain about: You cannot in a trial consistent with the due process clause in a trial of plaintiff versus defendant take money from the defendant and give it to the plaintiff for the purpose of punishing the Defendant for something he did Official to a different person who wasn't there. Now -- so he couldn't defend against him. That person didn't present a claim. So we are certain of that. Now, we're not certain whether that's what happened here. It may have done. There is certainly a lot of language to suggest it, and there is some language the other way. So we remand it to the court with that instruction that they cannot permit this to have happened if it happened. Whether it happened and what happened is a matter of Oregon law in large part and things about instructions, etc. Now, what's your view of that kind of disposition?
05-1256 +++$+++ 35784 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think the first part of your premise is clearly correct and totally consistent with the position we are taking. Whether it happened here or not is an interesting question. It is in the nature of a limiting instruction, which was basically what this was. You can use the evidence for one purpose, legitimate purpose, but don't use it for an illegitimate purpose. But we can't tell ordinarily, because jury deliberations are secret and we can't probe what they have decided, we can't probe whether they have imposed global punishment or not. But we anticipate the problem. We proposed an instruction which would as best we could at the time Official address the problem. Maybe it could be edited up to be a little sharper. But I think it contains the essential point that we're driving at here today.
05-1256 +++$+++ 35785 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Maybe, but it's possible the Oregon court would say: Well, no instructions are perfect, but -- and no set of jury instructions is perfect. But if we look at the jury instructions without the suggested one that was rejected and then we look at the suggested one, we find the suggested one had many things wrong with it, not just, you know, problems, confusion, et cetera. We find the instructions weren't perfect but, given Oregon evidentiary law, we think the trial judge made reasonable decisions, therefore okay.
05-1256 +++$+++ 35786 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You're raising a question whether that would be an adequate --
05-1256 +++$+++ 35787 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't know. That's what worrying me, what's worrying me about this is I see as we try to determine what this instruction said, whether it was good enough, whether the instructions without it are good enough, that we're going to be in a kind of bog of mixtures of constitutional law, unclear Oregon State law, not certain exactly what was meant by whom in the context of the trial, et cetera.
05-1256 +++$+++ 35788 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think this is a pretty fundamental principle. I believe the instruction fairly Official captured it. I don't think there would be an adequate and independent State ground for refusing the instruction. Keep in mind that in State Farm the Court said the defendant upon request would have been entitled to an instruction on the subject of extraterritorial punishment. Now, this is conceptually not really different from extraterritorial punishment. We wouldn't --
05-1256 +++$+++ 35789 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Frey, I suppose your theory here depends on the nature of the underlying tort, I suppose, in that there are, you argue, defenses that might be available with respect to other, other individuals who are harmed.
05-1256 +++$+++ 35790 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly.
05-1256 +++$+++ 35791 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So this argument wouldn't apply in a case if the underlying tort weren't susceptible to those sorts of defenses.
05-1256 +++$+++ 35792 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would still apply because different factfinders, different juries, might reach different conclusions on the same evidence, assuming that a summary judgment for the plaintiff is not proper. What you're doing is preempting, you're allowing a potentially aberrational verdict, which there could be in many cases, to preempt the work of other juries. The whole essence of the idea that we were trying to convey Official here and the legal principle that we are arguing today is to confine the jury to its proper domain and its domain is the case before it.
05-1256 +++$+++ 35793 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The jury can't really find that other people were harmed. The jury doesn't have evidence before it except as to this person. The most the jury can find, it seems to me, is that the, the activity engaged in bore a very serious risk of harming other people. I think a jury could find that. And therefore, the activity is more heinous and should be punished more severely. But I -- you don't --
05-1256 +++$+++ 35794 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Accepting the premise, accepting the premise, we don't disagree with your conclusion. That is, if the jury could find that they could punish this more severely. What they cannot do is punish it globally.
05-1256 +++$+++ 35795 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but I don't think I'm quibbling, but you seem to be conceding that this jury can decide that other people have been harmed and take into account the harm that it found other people suffered in deciding the penalty. And I don't think this jury has any basis for finding that other people were harmed. It could say there was a serious risk of it.
05-1256 +++$+++ 35796 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It can certainly consider the Official scope of the intended scheme. The fact that it didn't have evidence didn't stop the Oregon Court of Appeals from finding and the Oregon Supreme Court from endorsing the finding that many Oregonians were deceived, even though --
05-1256 +++$+++ 35797 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't there a distinction between actual harm to others and the risk of harm? Supposing a defendant fired a machine gun into a crowd of people.
05-1256 +++$+++ 35798 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-1256 +++$+++ 35799 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And he killed one, at least one. And that one sued and said: I want extra punitive damages because all these other people were subjected to the same risk. Wouldn't that be a proper consideration?
05-1256 +++$+++ 35800 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it is. I think in TXO the Court --
05-1256 +++$+++ 35801 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would it be a proper consideration even if a second person brought the same action?
05-1256 +++$+++ 35802 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if there were more, if there were other people who had causes of action, then I think there is a problem. In your hypothesis if only one person is injured --
05-1256 +++$+++ 35803 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you're not asking to Official recover for the actual harm to the others. You're saying there was a general risk of harm to many, many people, which is similar to what we have here. We don't know whether they're harmed or not, but that can be taken into account in fixing the ultimate verdict.
05-1256 +++$+++ 35804 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's what the Court said in BMW in effect, that the jury could consider even out of State conduct insofar as it revealed something about the blameworthiness of the defendant's conduct, the defendant's state of mind, the defendant's intentions. We're not saying that these things can't be considered for that purpose. What we are saying is that other people can bring their own lawsuits and punishment in those lawsuits -- If $79.5 million is right for Jesse Williams --
05-1256 +++$+++ 35805 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't the time to determine what to do with the second lawsuit is when the second lawsuit is brought?
05-1256 +++$+++ 35806 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, because the problem is a problem with the design. If you punish in the beginning -- if you have A, B, C, and D who are potentially injured and you punish in A's case for the harm to B, C, and D and then the defendant --
05-1256 +++$+++ 35807 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But can't I punish for the risk of harm to B, C, and D? Official
05-1256 +++$+++ 35808 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if you're punishing for the risk of harm then the same punishment would be appropriate in B's case and C's case and D's case.
05-1256 +++$+++ 35809 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But part of this award, at least according to the trial -- there's a footnote referring to an Oregon statute that provides for the distribution of punitive damages between prevailing parties and the State of Oregon. Is -- was this award shared?
05-1256 +++$+++ 35810 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it hasn't been paid yet.
05-1256 +++$+++ 35811 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But would it be?
05-1256 +++$+++ 35812 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it would be subject to that statute. Now, there's a question whether under the master settlement agreement it would have to be paid back to the companies. But that's a separate question that's not before the Court. But our position --
05-1256 +++$+++ 35813 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if the State law provides that part of the recovery goes to the State, then at least as to the part that goes to the State you can say, well the State has recovered and you can't --
05-1256 +++$+++ 35814 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But we have no protection for that. We have no protection. First of all, this verdict --
05-1256 +++$+++ 35815 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But then you can object in the next case if you're subjected to -- Official
05-1256 +++$+++ 35816 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And if we win the next case and we win the case after that and we win the case after that, when do we get credit?
05-1256 +++$+++ 35817 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, I mean when you lose the case on the merits and there's a determination of damages, Oregon says, we adjust for having a prior award. We don't know what that adjustment will be.
05-1256 +++$+++ 35818 +++$+++ TRUE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, but the regime is flawed in its structure because it's a ratchet to get up to the highest possible level even though juries who understood the underlying constitutional principle might award less. So I'd like to save, if I may, the balance of my time for rebuttal.
05-1256 +++$+++ 35819 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Frey. Mr. Peck.
05-1256 +++$+++ 35821 +++$+++ FALSE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: I'll start with the proposed instruction because that is where Philip Morris began and the Oregon courts properly treated that as an enigma. It told the jury, it would have told the jury, both that they could consider the extent of harm and not Official consider the extent of harm with respect to a reasonable relationship. That's the disparity guide post. Clearly, that is not what this Court has said. And what, it's not what the Oregon Supreme Court did. It's also significant if you look at the actual proposed instruction, which is, starts on page 240, 279(a) of the joint appendix, the, the proposed instruction says you may consider whether the imposition of punitive damages is necessary to punish and deter similar misconduct by defendant and others in the future. Now, that's part of a calculation that considers harm to others in the future as a potential harm. So that is one of the things that the Oregon Supreme Court discussed when it said that this does not reflect our law. It's also significant that they said that you could consider financial condition and you cannot consider financial condition which is part of the Oregon statute. Now Philip Morris in their reply brief says that we have conflated an alternative instruction with one that they offered but if you look at page 280(a) --
05-1256 +++$+++ 35822 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You're losing me, counsel. What, what specifically is wrong with the instruction proposed here?
05-1256 +++$+++ 35823 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This instruction --
05-1256 +++$+++ 35824 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ As briefly as possible, Official one, two, three.
05-1256 +++$+++ 35825 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This instruction basically advises the jury to do precisely what Philip Morris argues before this Court it cannot do and that is to take into account the harm suffered by others in determining this disparity.
05-1256 +++$+++ 35826 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you object to in this instruction. I mean, and I thought our cases clearly established that you can consider the harm to others in assessing the reprehensible nature of the conduct. You don't disagree with that?
05-1256 +++$+++ 35827 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't disagree with that and that's precisely what the Oregon Supreme Court did.
05-1256 +++$+++ 35828 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On the other hand, you cannot -- on the other hand you cannot punish the defendant for those harms particularly in a case where the defendant might have defenses available with respect to those others. So I understood what the instruction sought to do is simply try to draw, it's a fine line but the reason it's a fine line is because of our prior cases, and it tried to draw that distinction between assessing reprehensibility and punishing for harm to others.
05-1256 +++$+++ 35829 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We submit that it was unsuccessful in conveying properly what this Court has Official held and that is sufficient grounds for the Oregon Supreme Court to uphold the trial court's decision.
05-1256 +++$+++ 35830 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would it have been a proper instruction if the second sentence had read, although you may consider the extent of harm suffered by others in determining what the -- what that reasonable relationship is, although you may consider the extent of harm suffered by others in determining how heinous the crime, the action of the defendant was, and hence -- what, what that reasonable relationship is? If you had just added in that additional thought.
05-1256 +++$+++ 35831 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, if that --
05-1256 +++$+++ 35832 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It seems to me that's all that's left out of it. Now does leaving that out of it make it erroneous?
05-1256 +++$+++ 35833 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Leaving that out made it erroneous because it said, not with respect to reprehensibility analysis but with respect to reasonable relationship. That was erroneous.
05-1256 +++$+++ 35834 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes but reprehensibility analysis is part of the reasonable relationship. The more reprehensible it is the higher the ratio can be, according to our cases as I understand it.
05-1256 +++$+++ 35835 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me take a step back because I think there is a confusion here over also the word Official punishment. Punitive damages do not punish for harm, they punish misconduct. And this is an important distinction because harm is a compensatory concept. You compensate others for harm and of course you cannot compensate others for harm in the course of this case. But you can consider the potential risks, the potential harm and the future harm if this course of misconduct is not deterred.
05-1256 +++$+++ 35836 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You're saying this instruction was too favorable to you --
05-1256 +++$+++ 35837 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I'm saying --
05-1256 +++$+++ 35838 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- because it allowed them to consider harm.
05-1256 +++$+++ 35839 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- this instruction -- --
05-1256 +++$+++ 35840 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And you don't think they should have been allowed to consider harm, correct?
05-1256 +++$+++ 35841 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This instruction as the Oregon Supreme Court said, you know, doesn't provide the clarity that Philip Morris hoped to provide to the jury. And it says and they can't see how this summarizes Philip Morris' interpretation of Campbell. That's in footnote 3 of the court's opinion.
05-1256 +++$+++ 35842 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why, why -- why though? I'm having the same problem. As I read the sentence that we have just been quoted it seems to me Official at first blush that it's completely right. You may consider the harm, the extent of harm suffered by others in determining what the reasonable relationship is. Now you have to be sophisticated in this. Don't ask me how the jury is, but assuming that they are, that means that the more severely awful the conduct, the higher the ratio between the damage award and the injury suffered by this victim in court. And if it's really bad, you're going to maybe have a hundred times this compensation instead of only ten times or five times. So -- we take it into account, the extent of the harm that could be suffered, in deciding what that ratio should be. That means it goes to the evilness of the conduct. But you are not to punish the defendant for the impact of its alleged misconduct on other persons who aren't here in court. In other words, what you aren't to do is to look at good old Mrs. Smith who has really suffered terribly, she happens not to be in court, think about her suffering, which is real and serious, and then say I'm going to punish this defendant because of what he did to her. Which would be a natural human reaction, and perhaps admirable, but regardless, the law is that that's what you're not supposed to do. So reading it as I just read it naturally, it seems to describe what our cases have said is the Official law. Why isn't that right? I'm looking for a real answer to the question. I'm posing it in a hostile way and hope I'll get an answer. [Laughter.]
05-1256 +++$+++ 35843 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, if the instruction had been given the way you have just stated it we would have --
05-1256 +++$+++ 35844 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I --
05-1256 +++$+++ 35845 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- had no problems. But it's not how it reads.
05-1256 +++$+++ 35846 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-1256 +++$+++ 35847 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And it's not what it does. It starts out saying that reasonable relationship is about the harm to Jesse Williams and then it says you may consider the harm suffered by others in determining that reasonable relationship. Well, how does harm to others help you figure out what the relationship to Jesse Williams is? It doesn't compute.
05-1256 +++$+++ 35848 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, because the instructions indicate and juries often do this that punitive damages are certain multiple of the compensatory damages, and therefore that's what they are saying. In determining what that multiple should be you consider whether they have harmed others. And this instruction would make all the difference to the world Official in terms of what lawyers are going to be arguing about. If you're allowed to punish for harm to others, you say, well, there is however many, a thousand other people in the plaintiff's position, so a thousand times would be perfectly reasonable but you wouldn't say that the conduct is a thousand times more reprehensible. There is a more, there is a more natural limit on the multiple when you get this kind of instruction.
05-1256 +++$+++ 35849 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, but juries don't look at punitive damages in terms of a multiple. They are not asked to multiply anything and they shouldn't be. They are looking at the misconduct. They are looking at how you deter others from similar misconduct. They are looking at profitability here which is a statutory requirement to them.
05-1256 +++$+++ 35850 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Counsel, it seems to me the point you're making is not the basis on which the Supreme Court of Oregon said the instruction was properly disallowed. The Supreme Court of Oregon said it was properly disallowed because you can take into account directly the harm to other people, isn't that the case?
05-1256 +++$+++ 35851 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is not the case.
05-1256 +++$+++ 35852 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay. Why not?
05-1256 +++$+++ 35853 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As Justice Ginsburg pointed out Official earlier, the citations that they have used in their brief are to the characterization of Philip Morris' argument. But if you look at 30(a) in the petition -- and that second paragraph there starts out with "using harm to others as part of the ratio may have been correct under the plurality opinion in TXO" -- and then you jump down to, "however, it no longer appears to be permissible if it ever was."
05-1256 +++$+++ 35854 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what about footnote 3, on page 18(a)? On the last sentence says, if the jury cannot punish for the conduct which is harming others, then it is difficult to see why it may consider it at all.
05-1256 +++$+++ 35855 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that's because of the nature of this conduct. This is not conduct that was directed at Jesse Williams and he was the sole recipient of what Philip Morris did here. This was a massive market directed fraud driven by their rational and deliberate decisions at the highest levels of the company to deceive customers and knowingly endanger their health. They knew that this would have a special impact on those who are highly addicted, as Jesse Williams was. And so this is the misconduct that Oregon is seeking to deter. And how is a State, given the considerable flexibility that this Court has recognized, going to deter that kind of misconduct if instead society's interest has to be Official fractionalized on an individual case-by-case basis knowing that the majority of those cases will never take place and in fact in Oregon will not?
05-1256 +++$+++ 35856 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because you read it's about harm. You say look here is the person doing something absolutely awful, I mean really awful. And look at how awful it is. It's the kind of thing that would have hurt X number of people badly, maybe kill them.
05-1256 +++$+++ 35857 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
05-1256 +++$+++ 35858 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now I think we all agree that that's an appropriate thing to say. And as long as you can say that why can't you create serious damages for that type of conduct?
05-1256 +++$+++ 35859 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that is precisely what we believe the Oregon Supreme Court did here. When it talked about how highly reprehensible this was, extraordinary by any measure, it said those concerns override ratio by which they meant single digit ratios.
05-1256 +++$+++ 35860 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you say, I mean Justice Alito asked you a question about the footnote. And I, in all candor I think you told us more about the, your case than about the footnote, but let me ask you basically the same question about what the Oregon Supreme Court meant in the passage that runs from the bottom of 20(a) up to 21. It says "Philip Morris's Official proposed jury instructions would have prohibited the jury from punishing the defendant for the impact of its alleged misconduct on other persons even if those other persons were Oregonians who were harmed by the same conduct that had harmed Williams, and in the same way. As we noted that is not correct as an independent matter of Oregon law," and so on. That is not a totally unambiguous statement. I will concede that, but isn't the most obvious reasoning, reading of that a reading that says you can punish for harm to others, so long as those others are Oregonians and not people in other States?
05-1256 +++$+++ 35861 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe, Justice Souter that what the court was doing there which is somewhat similar to the analysis below in the Oregon Court of Appeals, was to talk about the prospective future victims of this fraud, that if it were not deterred which is a consideration that the Oregon statute makes clear, if it was not deterred then this kind of consideration for the same acts having the same effect on others then doesn't allow you to make sure that on that scale that this is at the high end of what we are --
05-1256 +++$+++ 35862 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's a, that's a, I will assume that's a legitimate reading in your favor. But the answer, I mean, I think the response has to be after Official listening to you, I don't know. I don't know whether that's what they really had in mind here. And if, if I really can't figure out what they had in mind, and if I go back to the footnote that Justice Alito mentioned before, isn't perhaps the better, the better course to send this back to them and say, "We don't know what you mean. Were you saying you can punish for these others as distinct from considering risk to others for, on reprehensibility?" And let them tell us clearly. Isn't that the better course?
05-1256 +++$+++ 35863 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you know, perhaps that's one way to determine what the court meant. But I would suggest --
05-1256 +++$+++ 35864 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ One way to look at what it meant is what you argued below, I'm looking at the joint appendix page 199(a), the plaintiff's counsel in Oregon to the jury: "How many people do you see outside driving home smoking cigarettes?" Now, that type of argument is perfectly appropriate to assess reprehensibility. On the other hand, with the instruction that was offered the defense counsel could have warned the jury keep in mind you can't punish for those other people. We only have one plaintiff before us and we are assessing the reprehensibility with respect to that plaintiff. But without the instruction Official you're allowed to argue how many people do you see in Oregon smoking cigarettes?
05-1256 +++$+++ 35865 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me suggest that both the Oregon Supreme Court and the instructions that were actually given to the jury helped answer this by looking at the statutory criteria. Oregon has taken extraordinary steps since this Court's decision in Oberg to enact a statute that guides the courts on the, guides the juries and the courts in the assessment of punitive damages. You know, first there is a threshold. Before you can even plead punitive damages you must meet that threshold and you must demonstrate to the court by admissible evidence that there was a reckless and outrageous indifference to a highly unreasonable risk of harm, that they've acted with a conscious indifference to the health and safety and welfare of others. Now, this is part of what infuses it with public purpose. Then --
05-1256 +++$+++ 35866 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I just ask you what is the division? How much of this --
05-1256 +++$+++ 35867 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 60 percent of an award by statute goes to a crime victims fund of the State of Oregon and as soon as the judgment is rendered then the State becomes a judgment creditor. Official
05-1256 +++$+++ 35868 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That has no relevance to the question of the extent to which the defendant is being punished, does it?
05-1256 +++$+++ 35869 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but the statutory criteria which requires that the jury find by clear and convincing evidence the following factors, which was given to this jury in the fashion that I'm about to tell you, constrains this award and I think properly makes it reasonable. First, you have to consider whether there is a likelihood that serious harm would arise from the defendant's misconduct. Second, the degree of the defendant's awareness of that likelihood. Three, profitability in the State of Oregon. Four, duration of the misconduct and concealment of it. Five, the attitude and the conduct of the defendant upon discovery of the misconduct. And then finally, financial condition of the defendant, which cuts both ways. It protects a defendant from being bankrupted by punitive damages while at the same time assures that punitive damages are enough to have that deterrent effect. Now even after that, the defendant could opt to have the jury address whether they had been previously punished for this misconduct or choose not to, which you would expect most defendants to choose, Official and instead post verdict, present that to the trial judge.
05-1256 +++$+++ 35870 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The trouble with the more basic question, I don't know if you can answer it, but it is a problem, that when I -- most States have factors like that, or many do. Alabama did. You know, not quite as good as that, and we saw the patent fraud, you know. And there are other cases that would bring up products liability. And it's pretty hard to think of a products liability case where the jury found negligence, where they might not also find these factors. Because in a typical case, you'll get competing memos within the company. Somebody will have been hurt and likely seriously, and when you start thinking about the victim in front of you, it all looks pretty bad, and it often is, at least in this instance. And now you read these five factors, and the difficulty for me has always been, well, you read the jury factors like that and they can do almost anything. And it's that, it's that fact that anything goes that I found disturbing.
05-1256 +++$+++ 35871 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But this last factor that I was about to get to, which I think provides a constraint that's unlike the ones that you've seen in other cases, and that is the total deterrent effect of other punishment imposed in any remedial measures the Official defendant has taken. Now this can be presented first to the trial judge, saying okay, we have this huge award, but, you know, we have been fined by the government, we have had punitive damages assessed against us in other cases, and as a result we have taken the following measures which assure that we will not engage in this kind of misconduct again, and as a result also, this award should be cut.
05-1256 +++$+++ 35872 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you say this after the fact? The jury doesn't hear this?
05-1256 +++$+++ 35873 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The jury does not. You have the option of presenting it to the jury but you do not have to present it to the jury. You can present it first to the trial judge and you can also present it at the appellate level.
05-1256 +++$+++ 35874 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems very odd that a major argument for constraint is something that the jury can't hear. It just goes to show, really, the irrational nature of the exercise.
05-1256 +++$+++ 35875 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would suggest it's not irrational because what you do is, you've given the defendant the option as a strategic matter either to present it to the jury or if they think that will guarantee an award of punitive damages against them, they can withhold it and present it only to the trial Official judge. This is a protection to the defendant rather than, you know, an oddity, I think.
05-1256 +++$+++ 35876 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask this question? Assuming there's a distinction, and the instruction does, between taking into account the extent of harm to others on the one hand and punishing for the extent of harm on the other. As I understand what you recited about the five parts of the instructions, none of them really authorized punishment for harm to others.
05-1256 +++$+++ 35877 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct, and --
05-1256 +++$+++ 35878 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And is it also true that the part the Chief Justice quoted from 199(a), it seems to me that could be an argument that you should take into account the extent of harm to others, but it does not seem to me to be an argument that you can punish on. And the question I want to ask, are there other parts of the closing argument in which plaintiff's counsel argued that you should take into account, that you should punish for harm to others?
05-1256 +++$+++ 35879 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is not. The only argument that was made in closing was that you can think about the others, which was clearly intended to go towards that reprehensibility analysis. You know, certainly in the criminal law context, an attempted crime is punished as badly as an actual crime when all the elements that Official are required to, to accomplish that crime have occurred. And in the context of this very unusual long in duration misconduct, what you had to do was you had to look at that broad attempt to effect Oregon --
05-1256 +++$+++ 35880 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think juries can, Oregon juries or juries anywhere can understand what they are told if they are told, you can take into account conduct directed at other people for the purpose of assessing how reprehensible the conduct is, but you can't punish for the harm that is caused other people?
05-1256 +++$+++ 35881 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe they can. This -- this jury did a very good job. First of all, if they --
05-1256 +++$+++ 35882 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They can understand that distinction and --
05-1256 +++$+++ 35883 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe they can.
05-1256 +++$+++ 35884 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you would have them apply that principle in this case?
05-1256 +++$+++ 35885 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They understood contributory or comparative negligence, and gave no award on the basis of negligence. They made a distinction in, in the fraud claim by only awarding a little bit more than $21,000, even though the request was much higher.
05-1256 +++$+++ 35886 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if they can understand that distinction, why wasn't the defense counsel entitled to argue to the jury just as you Official argued, you can consider the harm to others in assessing reprehensibility, why couldn't the defense counsel say, but, you can't punish for the harm to others, if as you answered to Justice Alito, a jury can understand that distinction?
05-1256 +++$+++ 35887 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe the defense counsel would have been entitled to make such an argument. I don't think there would have been any need for corrective instruction. But what they proposed, which was conflicting in two different respects, just did not meet the muster.
05-1256 +++$+++ 35888 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you think it would have been, putting aside what they proposed, if they had proposed an instruction that said, you may consider the harm to others in assessing how reprehensible the conduct is but you may not punish Philip Morris for the harm to others, you would have had no objection to that instruction?
05-1256 +++$+++ 35889 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would have had no objection.
05-1256 +++$+++ 35890 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So your only objection is that they left out the reason why it is relevant to determining what the ratio should be? They just didn't say you can consider it in connection with reprehensibility. Why is that crucial?
05-1256 +++$+++ 35891 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it was critical and of Official course, you know, Oregon is entitled to run its court system as it has for more than 30 years.
05-1256 +++$+++ 35892 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But why was it critical?
05-1256 +++$+++ 35893 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why was it critical?
05-1256 +++$+++ 35894 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Why was it corrected?
05-1256 +++$+++ 35895 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah. Justice Scalia said, you know, they left out this one little bit. Why was that critical? What's the answer.
05-1256 +++$+++ 35896 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the answer is because, again, it was not directed for the specific purpose for which harm to others may be considered, and that's in the reprehensibility analysis. There is no disagreement between the parties on that.
05-1256 +++$+++ 35897 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're saying, I think you're saying the jury couldn't have figured that out without somebody telling them?
05-1256 +++$+++ 35898 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But what this instruction told him --
05-1256 +++$+++ 35899 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't that what you're saying?
05-1256 +++$+++ 35900 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I'm not saying that. What the instruction told them is to consider it with respect to the reasonable relationship. That means the ratio. That means proportionality. And that would suggest, as Justice Stevens suggested, that they might multiply it Official by how many people are out there, because I think this instruction was an enigma and was confusing.
05-1256 +++$+++ 35901 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Too favorable to you. Too favorable to you again, right? (Laughter.)
05-1256 +++$+++ 35902 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You know, perhaps so. But you know, the fact of the matter is that, you know, we did not advocate that the jury punish for harm to others. We do not believe the Oregon court upheld this judgment for that reason. If I can go on to the, some of the other points that are made by Philip Morris. They talk about this Court's decision in State Farm as if it were nothing more than a ratio, so they reduce the decision to ratio. They transform the most important indicium, reprehensibility, into a subsidiary role in the ratio analysis.
05-1256 +++$+++ 35903 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can I make, just to get the ground rules here, you're not asking us to reconsider either State Farm, BMW, any of our punitive damages precedents?
05-1256 +++$+++ 35904 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, we are not asking you to do that. We think that this, this judgment is valid under those precedents. They denigrate the State's interest which this Court has said is the first consideration, Official the State's interest in deterrence to this fractionalized sort of passenger on each individual lawsuit, even though the State's interest here when we get to the punitive damages phase, it's infused with public purpose, that State interest is in deterring misconduct, not in figuring out how many dollars might be additionally awarded to the plaintiff or even into its crime victims fund. It removes the State's flexibility and ability to experiment with different ways to address the concerns that this Court has stated with respect to punitive damages.
05-1256 +++$+++ 35905 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It depends when you say something about duplicative recoveries, because that seems to be a major concern.
05-1256 +++$+++ 35906 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This total deterrent effect requirement is the key here, that this is a part of a State statute that says that to the extent that there had been prior punitive damage awards that have operated to affect that deterrence that the State is interested in, to the effect that there have been other punishments, to the effect that there had been remedial measures taken to prevent such misconduct again in the future, then the judge is to reduce this award. The Oregon Supreme Court has said that this fully addresses the concern with multiple awards, duplicative awards, Official and that authoritative construction by that court should, should weigh heavily with this Court. But at the same time, the fact of the matter is --
05-1256 +++$+++ 35907 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But what if -- your friend says, what if we never get assessed for any other case? Where do we make up this money?
05-1256 +++$+++ 35908 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you know --
05-1256 +++$+++ 35909 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Suppose they win every other case in Oregon.
05-1256 +++$+++ 35910 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, as a practical matter, they have been, they have lost both, the only two cases that have gone to a trial in Oregon. And as a practical matter, the statute of ultimate repose practically prevents any future Oregon plaintiff from bringing such a lawsuit. They would have to show that they contracted cancer or a disease from smoking within the repose period, which is eight years, if one were filed tomorrow, eight years ago, and that indeed that the fraud was a substantial factor in contracting that disease. That is what we were put to prove in this case, the relevant date being 1988. Now imagine, that window is rapidly closing on eight years, because it was after this case that Philip Morris decided that they were no longer going to deny that smoking causes cancer and they were no longer Official going to deny that nicotine was addictive. So that window is rapidly closing, and it's highly unlikely that a smoker can point to eight years ago as the point at which their cancer basically became active. So as a practical matter, there is going to be no awards, future awards in Oregon. And as a legal matter, doctrinal matter, I believe that Oregon has taken the step necessary to prevent multiple awards. You know, six States do not permit punitive damages in most instances. Another 20 or so cap punitive damages. And then 12, of which Oregon is one, has chosen a method like this to address that duplicative award approach. I think that kind of experimentation which is done in good faith, which has been authoritatively construed by the courts to address this question, is sufficient to address any concerns with due process. But let's, let's remember also, that while the Constitution contains many places where numbers are important, the President must be 35 years of age, it has implied in other places numbers, like in one person, one vote. But the due process clause in its spaciousness and majesty doesn't talk about numbers, and that is where the concern is only about reasonableness. It's about fairness. And here the Oregon legislature, Official supplemented by the Oregon courts, have taken those steps to properly constrain awards. Since the decision in Oberg, there have been only 14 punitive damage decisions in Oregon. Four of them have been overturned entirely by the Oregon Supreme Court, so no punitive damages awarded. There are only two out of all those awards that exceed single digits, and this is one of them. So I think that the courts have done a good job there of trying to address these concerns. And one of the areas of agreement between our opponents and us is that the statement in their brief that, reprehensibility ensures that the greater wrong receives the greater punishment. But the regime that they are suggesting, one that has a categorical ratio limit and atomizes this kind of consideration so you don't look at the broader societal and public purpose, that one guarantees a regime of underdeterrence. And Oregon has, as it is their right, opted for optimal deterrent effect. Thank you.
05-1256 +++$+++ 35911 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Peck. Mr. Frey, you have four minutes remaining.
05-1256 +++$+++ 35913 +++$+++ FALSE +++$+++ MR. FREY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. Official Let me, let me start with, let me start with the observation that Mr. Peck has argued as though this was a class action, as though total deterrence, disgorgement, and all these things were all to be achieved in this case, which is the heart of our problem here with the denial of the instruction. He referred to this other case in Oregon, which is the Schwarz case, as finding liability also, but what he didn't mention was that on the issue of the fraud relating, involving the relationship between cancer, between smoking and health, the jury found for the defendant. They found liability on a different issue, but not on this issue. So it hardly proves that we would lose all cases. It's also true that in that case, where the jury did not receive -- we asked for but we didn't get an instruction like this -- the jury actually came back and said: Does our award have to be reasonably related to the injury to Mrs. Schwarz? And the judge refused to tell them the answer to that. So juries do understand this problem and they do think about this problem. The suggestion was made that you can present prior awards to the trial judge. Now, I, I hope during my opening argument I covered the reasons why there's a structural deficiency in the system if the system even called for getting credit, which the Official statutes don't require. But you should know that the Oregon plaintiffs' lawyers have argued that under the Oregon Constitution it must be presented to the jury or is it may not be considered by the court. So while here he wants to assure you that it can be presented to the court, that's not the position they are taking below. On the question by Justice Souter about whether you should send it back and what the Oregon Supreme Court meant by its discussion, if it didn't mean what we say it meant they should have reversed and said were entitled to the instruction or identified some other reason why we're not entitled to the instruction. Now, there may be some independent State ground that you're not aware of, but you ought to say at a minimum that they were wrong and that a defendant in a punitive damages case is entitled to an instruction of this general nature, and then we can let the Oregon courts on remand address whether there is some other problem which we frankly don't see, but that would be for them. Now, if Mr. Peck is right about the nature of the conduct, there should be plenty of lawsuits and plenty of liability. If there isn't, the Court can't speculate that we ought to punish Philip Morris more in this case because other people are not Official sufficiently aggrieved to sue. That seems to me totally impermissible speculation. On the question of harm versus conduct, the unit of prosecution is the cause of action, so that it's not, it's not, you can repeatedly -- in our, in our submission you can repeatedly punish a defendant for the same conduct, for the impact of the same conduct causing injury to different people. What we are basically saying is that there are, there are potentially many causes of action out there for this conduct and the punishment in this case should be limited to the cause of action that is being tried before the jury in this case. Let's see if I -- if I have anything else. Justice Stevens talked about the ambiguity of the closing argument and I agree it's not clear what plaintiff's counsel was exactly saying. It could be interpreted in different ways. But that is a reason to have a cautionary instruction, not a reason to forgo one, to make sure the jury understands the applicable principles. Thank you.
05-1256 +++$+++ 35914 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Frey. The case is submitted.
05-1272 +++$+++ 35918 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We will hear argument next in 05-1272, Rockwell International Corporation versus United States. Ms. Mahoney.
05-1272 +++$+++ 35920 +++$+++ FALSE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The Tenth Circuit in this case correctly held that Stone could not share in the award given by the jury unless he was an original source of pondcrete allegations. But it then went on to find that he was an original source based upon a misinterpretation of the core requirements of the statutory definition.
05-1272 +++$+++ 35921 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. Mahoney, let me ask you a question. Am I wrong about this? It seems to me that if he was not an original source, not only shouldn't he get any money, but neither should the government. Isn't that the way the statute reads?
05-1272 +++$+++ 35922 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, that is one possible interpretation of the statute.
05-1272 +++$+++ 35923 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How is there any other possible one? It says there's no jurisdiction in this situation.
05-1272 +++$+++ 35924 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the way that the courts have handled it below is that it says that there's no jurisdiction unless it is a claim brought by a relator who is an original source or if it's brought by the United States. And if the relator drops out, I think courts deem it to at that point be viewed as a claim brought by the United States. It's sort of a retroactive amendment of the pleadings.
05-1272 +++$+++ 35925 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's not brought by the United States as long as he's still there.
05-1272 +++$+++ 35926 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-1272 +++$+++ 35927 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's your argument.
05-1272 +++$+++ 35928 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it can't be, Your Honor, because under the statutory terms, under section 3720(a) the Attorney General has the authority to bring a claim on behalf of the United States. There is no authority for the United States to bring a claim on behalf of the relator. Instead there is a second type of claim under section 3730, and that's a section (b), which authorizes a relator to bring a claim on behalf of himself and the United States. Similarly, Your Honor, if you look at the provisions in section (d), which authorize an award to a relator, it requires that the action be one brought under section (b), that is in other words it be an action brought by the relator which the United States then proceeds on for (d)(1).
05-1272 +++$+++ 35929 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I guess it really depends on whether you think the language "if the Government proceeds with an action" is equivalent to the Government's bringing the action.
05-1272 +++$+++ 35930 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think it can be, Your Honor, because if you look at the language throughout these sections, it differentiates between two kinds of actions, actions brought by the United States or the Attorney General and actions brought by the relator. And it is only an action brought by the relator under section (b) that authorizes an award under section (d). And it consistently talks about that. What they're really arguing, Your Honor, is that --
05-1272 +++$+++ 35931 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, wait. It says under 3, what is it, (c)(3) I guess, if the elects not to proceed with the action, the person who initiated the action shall have the right to conduct the action. Now, that suggests that if the Government intervenes the Government is proceeding with the action, right?
05-1272 +++$+++ 35932 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-1272 +++$+++ 35933 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you say that's different from the Government bringing the action.
05-1272 +++$+++ 35934 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. If you look at, if you look at the language in section (d), for instance, it says if the government proceeds with an action brought by a person under section, subsection (b). In other words, it has to be an action under subsection (b) in order to authorize an award at all. The Government has -- has authority under subsection (a) to bring an action, but it has no authority to bring it on behalf of the relator. The statute consistently uses these same terms, and this Court in Graham County, which was a decision dealing with the statute of limitations, actually described this section in the same way, saying that there are two kinds of actions, those that are brought by the Attorney General under subsection (a) and those that are brought by a relator under subsection (b), which the United States can then proceed with. What the relator is really arguing here is that if you look at the -- at subsection (e)(4), they're adding a phrase that's not there. They're saying that there's no jurisdiction over an action under this section if it is brought by the Attorney General or brought by a relator who is an original source or the United States intervenes and proceeds with the action. And that's not in here.
05-1272 +++$+++ 35935 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're being very picky-picky with this text, considering that you're willing to swallow whole the notion that so long as the -- so long as the original party, so long as the non-government plaintiff drops out, all of a sudden it become as action brought by the United States. That's a very, very expansive notion of what "brought by the United States" means. What I'm saying is or, to put it another way, if you take your picky-picky notion of being brought by the United States, to be logical about it you must reach the conclusion that if you defeat the private plaintiff under -- under he's not original source, the whole thing is thrown out, not just his recovery but the Government's recovery.
05-1272 +++$+++ 35936 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, of course that would be great for Rockwell, and so --
05-1272 +++$+++ 35937 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know, but it would be so extreme that we're not likely to buy it.
05-1272 +++$+++ 35938 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we don't argue for that because I think that the Court has said that the Government's intervention does not cure defects with respect to the relator, and therefore, if the relator didn't have -- that -- doesn't have standing -- you know, part of this goes to the issue of the Stevens assignment. If they don't have an assignment, then they don't even have standing to be in the action, they have no right to recover. And so if you're correct that it can't be cured, in effect, through a procedure like, say, 28 U.S.C. section 1553, which allows amendments to defective jurisdictional allegations where I think that, while the courts don't technically require it, they could say that really this, while it was pled as a section (b) action, when the relator drops out we could treat it as a section (a) action, because --
05-1272 +++$+++ 35939 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Otherwise, the Attorney General could just bring it all over again, a fresh complaint, and that would be wasted motion?
05-1272 +++$+++ 35940 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. I think it is a pragmatic rule. But again, if the rule is that they lose as well, then so be it. The fact is this statute uses the term that is used in section (a), which is "brought by the United States." And it makes perfect sense because otherwise think of what the consequences are if the relator can simply copy an indictment, file a complaint, and say -- and the Government intervenes because it's a major action, and then they say, aha, you're stuck with me because you've intervened and now there's jurisdiction and there's no problem, I don't have to be an original source.
05-1272 +++$+++ 35941 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They don't have to give them any money, though. The court doesn't have to.
05-1272 +++$+++ 35942 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think that you could say that they don't have to give them money.
05-1272 +++$+++ 35943 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you'd then have to pay his attorneys' fees. That's what really this is about, isn't it?
05-1272 +++$+++ 35944 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it is about that, but we don't have to pay his attorneys' fees, Your Honor, if he doesn't get a share, because the way that section (d) is written is it says that a relator who is paid a share of the proceeds shall also be entitled to attorneys' fees. So this is not just an issue between the United States and Stone. The statute controls the award of fees based upon whether he's entitled to a share. So even if this weren't an issue of jurisdiction, if he's not entitled to a share under a section (d)(1), then he's also not entitled to attorneys' fees. And therefore, we would win. He would still need to -- whether it's a jurisdictional rule or a substantive rule, if he's not an original source he's out. But the share is not the only issue that makes the Government's -- or that makes Stone's argument implausible here. That is that once the relator is in the action, the United States can't get them out of the action. Even if they don't have to pay them money, under subsection (c) they have a whole range of rights to participate in the action. They can't dismiss the relator. So it makes no sense to read this statute to say that someone who copies an indictment, files a complaint, the Government intervenes, they're in there forever. It instead makes much more sense to read the terms the way they're used elsewhere in the statute, to mean that there is only jurisdiction if it is a section (a) claim brought by the United States on behalf of itself or if it is a section b) claim by a relator that is an original source. That's what makes sense of the statute as a whole. If I could turn to the issue of whether or not the Tenth Circuit correctly held that Stone had direct and independent knowledge of the information on which his allegations were based. It bears emphasis that every act that he had to prove in order to recover on the pondcrete allegations -- whether they're measured at the beginning of the case or the end of the case doesn't matter -- every single act occurred after he left the plaintiff, after he had left his job. And we can see that from the outset of the case. If you look at his Responses to Interrogatories at JA-189 to 190, he identifies the factual basis for the pondcrete allegations that he is asserting. And that factual basis is described he is asserting and that factual basis is described as Rockwell's knowing storage of pondcrete on outdoor pads at the plant in violation of RCRA with false certification from 1987 to 1989. Now, he left his job in March of 1986. How could he possibly have direct and independent knowledge of those predicate acts?
05-1272 +++$+++ 35945 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, suppose a company has a plan to defraud the Government and it use a certain chemical mix to save money and that's what the real fraud is. And it puts it in place and it puts it in place in 1988. And the -- and it has just two containers full of this. And the relator knows about it. The relator then quits. Then for 10 years the company does the same thing, following the same patterns, same method, same improper formula. And he then rings -- he then brings this to the attention of the Government in the proper way and files a suit. He cannot recover for the later action which was the same pattern, practice?
05-1272 +++$+++ 35946 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Perhaps, Your Honor, in certain circumstances. I think the key question is what's the standard, and he has to have substantial knowledge about core fraudulent acts. And it may be reasonable in your hypothetical or some others to infer that he knew plenty about this fraudulent conduct and had plenty of reason to conclude that it was continuing on. But here, Your Honor, nothing of the kind happened. He didn't know about any fraudulent conduct pertaining to pondcrete before he left. And In fact, his allegations start in 1987. He does not say that there were pondcrete violations before then and indeed there were not. The reason there weren't is because when he was at the plant Rockwell was producing hard pondcrete, hard pondcrete, and it wasn't storing it on site, it was shipping it to Nevada. So he couldn't -- and it wasn't even clear that it was subject to RCRA because DOE didn't enter into a RCRA compliance agreement until after he left. He also concedes in his deposition that he was not, except with one exception -- he was not aware of any time when Rockwell affirmatively represented that it was in compliance with environmental safety and health provisions when it was not. That's JA-106. So he didn't -- unlike your hypothetical, he didn't know anything about there being a pondcrete fraud prior to the time of his departure and doesn't even allege one. Instead, what the Tenth Circuit rested upon was the fact that he had reviewed a design for making pondcrete 5 years -- in fact, not for making pondcrete; it was actually a design for removing sludge from the ponds -- 5 years before any of the events at issue here, and he said he predicted there would be a design problem.
05-1272 +++$+++ 35947 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It wouldn't have to have anything to do with pondcrete at all. The statute just says the information on which his allegations are based. They don't say the allegations that eventually give rise to a recovery.
05-1272 +++$+++ 35948 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, every court that has considered that question has said that it has to be analyzed on what they call a claim by claim basis. Let me explain the reason. First of all, let me explain what they mean by claim by claim. They really mean a factual theory of falsity, and that it has to be done on a claim by claim basis, and here's why --
05-1272 +++$+++ 35949 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Factual theory of falsity, that doesn't mean anything to me.
05-1272 +++$+++ 35950 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ A theory of falsity. In other words, a claim, what is called a claim in these cases in the claim by claim analysis is a theory of falsity. In other words, it's why were -- why was the fraudulent claim false? Because there may be a certification, for instance, of compliance with let's say all laws and there could be five different, completely different fact patterns as to why that was false, and the damages might be completely differ as well. So all of the courts have said that's really the way that FCA cases are litigated, that's really what we call a claim. And then, moving back, if you didn't do it on a claim by claim basis, you would allow a relator to copy an indictment that he knows nothing about, come to court, file it, add one theory that he does know about, an overcharge for five dollars on a hammer, say that, I'm now entitled to proceed on the whole thing and if the Government doesn't intervene I get a minimum of 25 percent of the --
05-1272 +++$+++ 35951 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's one way to look at it. Another way would be you would allow a relator in a situation who alleges a particular fraud that causes the government to examine the books and uncovers a different fraud to recover on that basis. It's an unusual situation to have a jurisdictional prerequisite determined only after the case is over.
05-1272 +++$+++ 35952 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Your Honor, it doesn't have to be determined after the case is over. These inquiries should -- it should have been determined here as well at the very outset of the case. And it was. It was just determined wrong. We do not have to show that it was wrong at the end of the trial in order to prevail in this case. It was wrong at the beginning. The interrogatories --
05-1272 +++$+++ 35953 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If you only show that it's wrong at the end, you still say that they should be thrown out.
05-1272 +++$+++ 35954 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, we do, Your Honor but it is not by any means necessary to the outcome in this case. And the reason why I think that you do have to at least allow for the possibility of looking at the end of the case, whether there is jurisdiction or not, is because of the nature of this particular jurisdictional bar. This is a jurisdictional bar that turns on the nature of the allegations at issue in the case. Much like -- I think the Foreign Sovereign Immunities Act is a perfect example because it too talks about jurisdiction being predicated on, for instance, commercial -- claims that are based upon commercial activity. Suppose that the plaintiff at the outset of the case when the 12(b)(1) motion is filed posits one theory of the case that involves a predicate commercial act. But when it gets to trial he's abandoned that theory and now he doesn't have any commercial act. Surely the Court would say you have to satisfy jurisdiction over the theory that has actually gone to trial. This statute is very much the same. And it should not be read in a way that allows relators to simply disguise the true basis of their claims, hide the relevance of the public information, and then just shift gears when you get to trial. But here again, if we just look at the very beginning of the case, he does identify in those interrogatory responses, for instance, what the factual basis for the pondcrete allegations are. All that factual basis is all identified as -- as core acts that occurred after he left the plant. So we can look back in this case and say that the trial court erred at the outset by not dismissing this portion of his claim as well as, in fact, should have dismissed the whole thing, Your Honor.
05-1272 +++$+++ 35955 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, his allegation was that this, the design is not going to work.
05-1272 +++$+++ 35956 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But Your Honor --
05-1272 +++$+++ 35957 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's not an allegation that's -- I mean, it is either true or it's not true. The fact that you find out after he's left, after he's been terminated, that it doesn't work, I don't see how that should affect the validity of his allegations.
05-1272 +++$+++ 35958 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because, Your Honor, this, this is a statute about fraud. It's not a statute that's violated because Rockwell may have had a suboptimal pipe. That's not, that's not even the RCRA violation. That's not -- and it is certainly not a False Claims Act violation. They weren't selling pondcrete to the United States. He didn't know about a plan to defraud the United States.
05-1272 +++$+++ 35959 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They were certifying their compliance with the applicable laws --
05-1272 +++$+++ 35960 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At that, at the time --
05-1272 +++$+++ 35961 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- based upon their pondcrete design.
05-1272 +++$+++ 35962 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At the time that he was there that was not actually -- he didn't even allege that he knew they were doing that with respect to pondcrete. He didn't allege that there were any problems with respect to the pondcrete production or, or certifications during his tenure. From -- they began producing pondcrete in 1985, Your Honor. And there were no problems that were alleged with respect to that pondcrete. His claim by his own admission starts in 1987, after he was gone. And again, the mere fact that there may have been a defective pipe wouldn't establish the RCRA violation, because what they had to show by their owning pleading here was that they were storing it on site, that it was actually leaking, and, of course, the mere fact there may have been a problem with the pipe doesn't mean it is actually going to leak, because they can fix it in a variety of ways. They can add more cement, they can put it in metal containers, they can do a myriad of things. He didn't even say he knew know that there was a plan to not remedy and problems in the design that he had identified if and when there became a problem with it.
05-1272 +++$+++ 35963 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Am, am I correct that they were, in fact, using that same pipe or that same pipe system during a period when perfectly fine cement blocks were being produced?
05-1272 +++$+++ 35964 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We think that's correct, Your Honor.
05-1272 +++$+++ 35965 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that true, is that conceded?
05-1272 +++$+++ 35966 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that it's conceded that -- well, their own counsels told the jury that they were making it wrong, they weren't adding enough cement, that that was the reason that it was failing; and the Government told the jury that they were making it fine until they reduced the ratio of cement. So yes, I think it is correct that it has been conceded at trial that the system was working fine as long as they were adding enough cement. But instead what happens after he left --
05-1272 +++$+++ 35967 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The whole purpose, the whole purpose of this legislation is to ferret out fraud on the Government. I mean, if he makes an allegation that this design is not going to work, the pondcrete is not going to work, and the Government, prompted by his lawsuit, investigates it and finds out that because of human error they're not making it the right way, even if the design does work, he get no credit for that?
05-1272 +++$+++ 35968 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, the statute isn't written in that way. But let me also call your attention to some facts. And that is that a year before he brought this claim --
05-1272 +++$+++ 35969 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what about the hypothetical? Are you suggesting that in a situation like that -- -we'll talk about whether the facts comport with it later -- but in a situation like that, he's not entitled to share in the recovery that the Government eventually receives?
05-1272 +++$+++ 35970 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If -- the mere fact that he is a trigger for the Government discovery of a different problem, no, that is not a basis for recovery. The statute says that if there has been a public disclosure, if -- let's assume there was a public disclosure. If there's no public disclosure it is no problem. He can bring whatever claim he wants. He doesn't have to have direct knowledge of it. Bit if there has been a public disclosures at that point he has to have direct knowledge of the information on which the allegations are based. And that has to be a substantial standard. Direct knowledge is one of the key things that the Tenth Circuit just did not --
05-1272 +++$+++ 35971 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You would, you would change that to say direct knowledge of the information not on which the allegations are based, but on which recovery is eventually -- eventually ordered?
05-1272 +++$+++ 35972 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ On which the allegations of the claim is based. In other words, it, it's not -- it has to be -- and the Government says this as well -- they say under that Section D(1), the relator isn't entitled to share in the proceeds of anything that the jury gives. The relator is only entitled to share in the proceeds of a claim for which they were an original source or for which they brought the -- brought the action under, under Section B. Sometimes the Government intervenes and adds its own claims not on behalf of the relator, because it doesn't have authority on behalf of the relator, and it takes the position, I think correctly, that the relator isn't entitled to a share in those circumstances. And Your Honor, this -- the courts have identified all the ways in which this statute doesn't make any sense if it is looked at on --
05-1272 +++$+++ 35973 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Identified them all?
05-1272 +++$+++ 35974 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- on a global basis. Excuse me?
05-1272 +++$+++ 35975 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They've identified them all already? (Laughter.)
05-1272 +++$+++ 35976 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't think they have identified them all. But I --
05-1272 +++$+++ 35977 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You may find another one.
05-1272 +++$+++ 35978 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I, I would also -- again, it would allow the relator to get, you know, a share of, when the Government doesn't intervene, a minimum of 25 percent of a billion dollar recovery after a public disclosure that he knew nothing about, if he just knew one little piece after separate theory of fraud.
05-1272 +++$+++ 35979 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the theory is not necessarily bad. The, the relator has to cooperate with the Government, ideally he should. And if the Government said we prefer a variance of your theory, and the relator said fine, "I don't want to put competing theories before the jury, so I'll surrender my first theory and go with the Government's," why should the relator be penalized for that good litigation practice? It doesn't necessarily mean that the original complaint is no good or even that it might not have been proved, if the Government had preferred another route.
05-1272 +++$+++ 35980 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well it there, if there's a minor variation, you know, something like that, I certainly don't think that disqualifies the relator from, from being an original source. And again, here he wasn't an original source even under his own theory at the outset of the case. What happened at trial is the one little thing that he knew or claimed to know, his prediction that a pipe would have a problem five years before, was dropped completely from the case. So he went from being a relator who knew something very small about the case or about the theories to nothing at all. It was never good enough, but certainly once, once that theory was -- once that piece of information dropped out, it just demonstrated, it just highlights that he's not an original source. And Your Honor, here it wasn't just that they didn't want to use that bit of evidence. It was actually inconsistent with the theory that they, that they pressed with the jury. They said the equipment was fine. Rockwell was making pondcrete just fine from 1985 forward until it stopped adding the cement. And that's what they -- that's the theory they went with. But again, measure it at the outset of the case, and he still wasn't an original source. If I could save the remainder of my time?
05-1272 +++$+++ 35981 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask just one quick question?
05-1272 +++$+++ 35982 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-1272 +++$+++ 35983 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What was the public disclosure of the claim that ultimately prevailed?
05-1272 +++$+++ 35984 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The public -- there -- the public disclosure was in 19 -- it can be from several pieces. But in 1988, there were widely covered stories of the fact that pondcrete was being stored at Rocky Flats on outdoor pads, that it was leaking and that the reason it was occurring was because the employees had reduced the ratio of cement. And then you couple that with the disclosure --
05-1272 +++$+++ 35985 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the public disclosure was made in the newspapers rather than in an official Government proceeding?
05-1272 +++$+++ 35986 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. It was in the newspapers. But it was definitely covered, Your Honor. And that was more than a year before he brought his action. And then in addition, there were disclosures of allegations of performance bonuses being paid based upon falsified evaluations. That's JA 143. Thank you.
05-1272 +++$+++ 35987 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Ms. Mahoney. Ms. Vullo.
05-1272 +++$+++ 35989 +++$+++ FALSE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court. The Court should affirm the decision of the Court of Appeals because as the Government recognizes, Mr. Stone is an original source. And it is important to the look at the statute and its purpose. The original source provision is intended to determine who may bring a claim on behalf of the United States Government. And the recovery provision, 3730(d)(1), determines how much if anything a relator may share in the Government's recovery. In this case, whether where the Government fully supports the relator, I would submit that the interests of the statute and the interests of the United States are fully satisfied. And that is because Mr. Stone is the paradigm not parasitic relator. He had knowledge firsthand from his six years at Rockwell of a pattern, Justice Kennedy, a pattern of criminal conduct and a pattern of Rockwell concealing that information.
05-1272 +++$+++ 35990 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Unfortunately, it was not the criminal conduct that was ultimately -- it was not the manner of criminal conduct that was ultimately the basis on which the Government proceeded? He knew about this bad pipe, right? Or he said that this was a bad pipe system? He didn't say anything as I understand it about their not adding enough cement which is the theory that went to the jury.
05-1272 +++$+++ 35991 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, I would beg to differ on that. Mr. Stone in his affidavit at 179 in the joint appendix and also in his disclosure statement, which is at 29 -- I'm sorry, 174 and 175 of the joint appendix, and the disclosure statement at 290, what he described was a defective design of the system for taking the sludge out of the pond. And what he specifically said -- and this is very important -- what he specifically said was when you took the sludge out of the ponds in that manner, it was going to have too much liquid, and it was going to lead to deterioration of the environment. He said that in the very beginning of the case. And at trial, what the testimony was -- and I would direct the Court to Mr. Freibach's testimony at joint appendix 522, as well as at the trial transcript at 987, the issue there was the variability of the sludge which may have caused greater inspections and may have required additional cement. And what is very important is even Mr. Freibach who is the first foreman, on whom petitioners rely, he testified that during his tenure, the variation of the sludge required between 200 and 350 pounds of cement. That's at the trial transcript at 987 and the joint appendix at 522.
05-1272 +++$+++ 35992 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah. Let me -- let me look at what -- let me look at 175. This is, this what he says. "After careful study, I concluded that the suggested process" -- this means of piping the sludge out -- "would result in an unstable mixture that would later deteriorate and cause unwanted release of toxic wastes to the environment. I also noted based on my analysis of chemical processes at Rocky Flats that that the sludge and liquid present in the -- present in the evaporation ponds contained some of the most toxic and radioactive substances at Rocky Flats." I mean, that's all very good, but it has nothing to do with what this company was convicted of, which is not -- cutting down on the amount of cement it was adding.
05-1272 +++$+++ 35993 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
05-1272 +++$+++ 35994 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ During a certain period after this it was creating perfectly good blocks by adding more cement. Then they got a new manager who said let's use less cement. And that's when they started producing the defective blocks. It has nothing to do with his allegations.
05-1272 +++$+++ 35995 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, two important points. First is that neither the criminal conviction nor the jury's verdict determined the cause of insolidity. The issue in the criminal case and the issue in the False Claims Act case as to pondcrete was that the pondcrete was insolid and they were lying to the -- the Government about that.
05-1272 +++$+++ 35996 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And why did the government claim it was insolid? What was the claim made for -- as to the reason for the insolidity?
05-1272 +++$+++ 35997 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, one of the pieces of evidence -- and I would -- out of 55 witnesses and 500 documents, was that there were certain people who were using too little cement. There was also evidence --
05-1272 +++$+++ 35998 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but was the reason they were using too little cement, the reason that there was a variation in the amount of liquid being taken out with the sludge as you've described to us that he had claimed, or was the reason simply that there was a kind of standard ratio of cement to sludge and that standard ratio was not followed in the later cases? In other words, is it because there was such a tremendous variation in the liquid in the sludge or simply because there was a standard formula having no particular relationship to the liquid in the sludge, and they simply didn't follow the standard formula? I thought the government's theory was the latter, and if it was the latter, it has nothing to do with the claim that he was making that there was too much variation in the amount of liquid in the sludge.
05-1272 +++$+++ 35999 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's not correct, Justice Souter. The reason for the variation and the need for additional cement was because the sludge had variations and there was too much liquid in it, which was precisely what Mr. Stone said. And every one of the witnesses testified to huge variation of the liquid content in the sludge which required more cement, and even the amount of cement that was required was very variable.
05-1272 +++$+++ 36000 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if they had followed the formula that they followed at the beginning, isn't it true that there's no evidence that even these variations in the liquid in the sludge would have resulted in instable or insolid pondcrete?
05-1272 +++$+++ 36001 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. That's not correct, Justice Souter. In fact, there was no particular ratio that had to be followed of cement to sludge. There was testimony that different individuals who worked on the pondcrete used different amounts of cement. And as I said --
05-1272 +++$+++ 36002 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This was truly even before the troubles started, even before the insolid pondcrete?
05-1272 +++$+++ 36003 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. Yes, Justice Souter. Mr. Freibach, who was the earlier foreman, testified that under his watch, he needed between 250 and 300 pounds of cement, and that there was a constant inconsistency in the sludge content coming out of the ponds.
05-1272 +++$+++ 36004 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was -- here's an easy question. Was this evidence that we read, his testimony from 175 of the joint appendix, was that introduced at the trial?
05-1272 +++$+++ 36005 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Stone did not testify at trial.
05-1272 +++$+++ 36006 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was this evidence introduced from some other source? Was the jury told there was this piping that was taking out too much liquid with the sludge? Was the jury told that?
05-1272 +++$+++ 36007 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The jury -- Mr. Freibach described the process. We did not get into the engineering detail, Your Honor, of it.
05-1272 +++$+++ 36008 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So his central allegation was not even placed before the jury?
05-1272 +++$+++ 36009 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I would submit to you, Justice Scalia, that that wasn't required. What we needed to prove --
05-1272 +++$+++ 36010 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it is worse than that, though. This information was not even provided to the government, which the statute requires. He not only has to have direct and independent knowledge, he has to voluntarily provide that to the government. And I understand that the Tenth Circuit, to have relied solely on the document at joint appendix page 605, that's the only thing he provided to the government. And all it says is that this design will not work. There are a lot of things that don't work, but that doesn't mean there's fraud on the government. You don't know if they're going to fix it, they're going to change it, use a different design, not make a claim based on that design. Why is that enough to satisfy the statute?
05-1272 +++$+++ 36011 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, the voluntarily provides prong requires the relator to be honest and truthful and submit all the information he has. And Mr. Stone did that and the government has never said otherwise. In fact, he met with the FBI agent --
05-1272 +++$+++ 36012 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But he has to -- if the information that he provides isn't direct and independent information of the allegations, it would seem that the statute is not satisfied.
05-1272 +++$+++ 36013 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct, Your Honor, but Mr. Stone did have direct and independent knowledge of his allegations. And I'd like to go back to the discussion with petitioner's counsel as to the jurisdictional petition in this statute. There is no question that --
05-1272 +++$+++ 36014 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't want to get off my question here but did you -- do you agree that this page JA 605 was the only information that he provided to the government?
05-1272 +++$+++ 36015 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor.
05-1272 +++$+++ 36016 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, maybe I'd better phrase it differently. Do you agree that that is the only information on which the Tenth Circuit relied?
05-1272 +++$+++ 36017 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That, the Tenth Circuit did rely on that document and did not consider any other information as a result of its ruling with respect to that document. The Tenth Circuit also had before it the awards fee documents which Mr. Stone provided to the government, and those are at joint appendix 247 to 249. It also had Mr. Stone's affidavit when he testified in his affidavit as to his meetings with the government, and also had additional affidavits --
05-1272 +++$+++ 36018 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but this -- he has to provide this information before filing an action.
05-1272 +++$+++ 36019 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. And his affidavit describes his meetings with the FBI and EPA beginning in 1986, and that's at joint appendix 180 through 181.
05-1272 +++$+++ 36020 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I have a question.
05-1272 +++$+++ 36021 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Stevens.
05-1272 +++$+++ 36022 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ As I understand the statute, you his the first prong. It has to be an action based on public disclosure of information, which you agree it was; is that right?
05-1272 +++$+++ 36023 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, we in the courts below agreed for purposes of the original source provision that there was a public disclosure. I think what's important following up on the question --
05-1272 +++$+++ 36024 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You agree that it's within 4(a), that it was an action based on a public disclosure of information disclosed in newspapers; is that right?
05-1272 +++$+++ 36025 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In newspapers and also the criminal investigation, but I think what's important is that the standard that Rockwell seeks to have this Court adopt would actually require such a great level of specificity that is not in the public disclosure at all. And I think, Justice Stevens, you asked that precise question. The public disclosure was very general. And the Tenth Circuit --
05-1272 +++$+++ 36026 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I am asking you, really what I'm seeking to find out is what is the scope of the public disclosure that everyone agrees was made? Was it all newspapers?
05-1272 +++$+++ 36027 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was newspapers, and the FBI agents' search warrant affidavit was also publicly disclosed prior to Mr. Stone's filing of the action.
05-1272 +++$+++ 36028 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If it was publicly disclosed in the newspapers, does that fit into one of the categories of public disclosure mentioned in 4(a)?
05-1272 +++$+++ 36029 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. It says news reports in that provision of the statute.
05-1272 +++$+++ 36030 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And everybody agrees on what those news reports contained?
05-1272 +++$+++ 36031 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm not sure what Rockwell agrees, but I could tell Your Honor what I believe those news reports said, and they said that there were environmental violations. There were some news reports in June of 1988 about a spill on the pondcrete pads. Not a single one of the news reports about the spill on the pondcrete pads described at all any false claim or false statement, and neither did the agents' search warrant affidavit.
05-1272 +++$+++ 36032 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So you're saying that the original source of the information was published?
05-1272 +++$+++ 36033 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe that that's the appropriate test. It's not before this Court, but I believe that the direct and independent knowledge requirement is information on which the allegations are based, and the allegations refer to Mr. Stone's allegations at the commencement of the action. After all, it's a jurisdictional provision, and it should be determined at the outset of the action.
05-1272 +++$+++ 36034 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I would have thought the allegations referred to the public disclosure. It talks about public disclosure of allegations, and then says he has to have direct and independent knowledge of the allegations. So I would assume that's the important linkage.
05-1272 +++$+++ 36035 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, there is a split in the circuits on that issue. The issue was not decided by the Court of Appeals and as I understand even Rockwell's position, that is not Rockwell's position, that Rockwell's position is like our position, that it's information in the allegations of the complaint. But I would submit that that would make no difference in this case because Mr. Stone's knowledge is direct and independent of the information in his complaint as well as the information in the public disclosure. And what is important is that Rockwell is asking this Court to adopt the quick trigger that the Court of Appeals adopted because that was the Tenth Circuit's law on public disclosure. Yet in this case, say that Mr. Stone's direct and independent knowledge has to be very, very specific. It has to be of the particular false statements, and that would eviscerate the entire original source rule. And if I could just get to the point of the jurisdictional issue and why Rockwell's position as to the trial evidence is wrong, it's wrong for two reasons. The first is that the statute speaks in terms of allegations. It does not speak in terms of evidence. In fact, in the provision E.2, which is a provision regarding bringing claims against members of the judiciary and members of Congress, Congress said information or evidence, but in this provision E.4, Congress only said information. So looking at the trial evidence would be wrong by virtue of the plain language of the statute. It also would be wrong as, Mr. Chief Justice, you pointed out. Since 1824, I believe this Court has held that jurisdiction is determined at the time of commencement as of the state of things at that time. And as, Justice Ginsburg, you pointed out, it would be an inappropriate rule to say that if the government decides to refine the allegation, after all, it is still a concrete allegation.
05-1272 +++$+++ 36036 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We've also said that jurisdiction must be maintained throughout the case. Something like standing. We say standing is examined throughout the trial. There's an easier standard at the beginning, and then for the complaint; and then for a motion to dismiss, a somewhat higher standard; and finally, if the facts of -- involving standing are tried, there's the highest standard at the end of the trial. I mean, it seems to me jurisdiction has to be assured throughout.
05-1272 +++$+++ 36037 +++$+++ TRUE +++$+++ MS. VULLO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, I think this is a jurisdictional provision that Congress created. We're not talking about the Federal question jurisdictional statute. But in this provision, just like in the Clean Water Act in the Walton case, the statute uses the word allegations. As in that case, the statute used the word alleged. And the Court held very clearly that you look at it as of commencement. Now it might be a different case if we had a federal question case and the relator or the plaintiff withdrew the Federal claim. Then there would be a loss of jurisdiction. Here of course, the amended complaint satisfied jurisdiction when the government adopted the relator's claim. Thank you.
05-1272 +++$+++ 36038 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Vullo. Mr. Stewart?
05-1272 +++$+++ 36040 +++$+++ FALSE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: One of the features of this case that may appear anomalous is the fact that the government is aligned with Stone. That is, it's Rockwell's position that the entire recovery in this case should go to the United States. It is Stone's position that the recovery should be shared with the relator, and the government agrees with Stone. It might be natural for the Court to wonder, why would it be in the government's interest to advocate that a share of the money damages in this case should be given to a private party. And the reason is that the government believes that there are three systemic government interests that are implicated by this case and that would be endangered if Rockwell's position prevailed. First, in our view, Stone is precisely the type of relator that Congress intended to encourage. Stone was somebody who had substantial firsthand knowledge of Rockwell's environmental practices and of its billing practices, and moreover, Stone was somebody who didn't conceal his information from the government.
05-1272 +++$+++ 36041 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's all very nice, but Congress didn't leave it up to you to decide who ought to get rewarded or not. It laid down some textual conditions in the statute. And unless they are complied with, the fact that you think this is the kind of person you think ought to get the money is really totally irrelevant.
05-1272 +++$+++ 36042 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We agree. And as to Stone's original complaint, the statute frames the inquiry as whether Stone has direct and independent knowledge of the information on which the allegations were based. And we agree with Rockwell and with Stone that that refers to the allegations in his complaint. Now the allegations were fairly generalized. They didn't refer specifically to pondcrete, and they covered a wide range of time, from 1980 through to the present, which was 1989 as of the filing of the complaint. Stone subsequently submitted a lengthy affidavit in which he explained what led him to the conclusion that Rockwell was engaged in a systematic practice of violating the environmental laws and misrepresenting the nature of its compliance to the government. That information --
05-1272 +++$+++ 36043 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What if the defect that he identified turns out to be entirely different? What if there is no dispute, it's completely different from the defects that led to the false claims on which there were recovery?
05-1272 +++$+++ 36044 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, there certainly could be a situation in which the government intervenes in a suit but files what can be regarded as a substantially different claim. For instance, if the government had intervened in this suit and had claimed that Rockwell's requests for payment were fraudulent because Rockwell had misrepresented its compliance with the anti-discrimination laws, that would be an example of a fundamentally different fraudulent scheme and --
05-1272 +++$+++ 36045 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's take this case. Did the government use any of the evidence that Stone produced? Did it introduce that affidavit which said the pipe wasn't working right? Was that part of the evidence?
05-1272 +++$+++ 36046 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It didn't introduce the engineering report. And I do want to focus on --
05-1272 +++$+++ 36047 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what else had he provided beyond -- did you use anything that came from him?
05-1272 +++$+++ 36048 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He had provided substantial information about a pattern of concealment of environmental violations generally. That at least to some extent was responsible for an FBI investigation which uncovered further --
05-1272 +++$+++ 36049 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But did you use at trial anything that he provided you?
05-1272 +++$+++ 36050 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We proved essentially the state of affairs that he predicted would occur.
05-1272 +++$+++ 36051 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did you use anything he provided you in order to prove it?
05-1272 +++$+++ 36052 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not aware of anything that --
05-1272 +++$+++ 36053 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, neither am I.
05-1272 +++$+++ 36054 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But nevertheless, the relator had direct and independent knowledge of the information on which his allegations were based. And I'd like to focus on this question of the cause of the insolidity of the pondcrete because I think to regard that as the theory of the government's liability really reflects a misunderstanding of the False Claims Act. For purposes of the False Claims Act counts in this case, it was sufficient for the government to prove that the pondcrete in fact failed, leaked hazardous substances into the environment, that Rockwell was aware that the pondcrete was failing, and that Rockwell nevertheless continued to represent that it was in compliance with the environmental laws. For purposes of proving those allegations, it was not necessary for the Government to offer any hypothesis as to why the pondcrete failed. It would have been sufficient to prove that the pondcrete failed and that Rockwell knew about it. In fact, I wouldn't encourage the Court to read the whole trial transcript, but I think if the Court reads the plaintiff's statement of claims, which is about 30 pages of the joint appendix beginning at JA-463, that summarizes the events that Rockwell -- I mean, I'm sorry, that Stone and the United States intended to prove at trial, and by far the predominant focus is on the fact of pondcrete failures and Rockwell's awareness that they had -- that pondcrete had failed. There were a couple of paragraphs in those 30 pages that alluded to the supposition that the cause of the failure was inadequate cement content. There were also isolated references to that theory at trial. But to characterize that as the theory of liability I think would be a misconception. The Government didn't have to persuade the jury one way or the other as to why the pondcrete failed.
05-1272 +++$+++ 36055 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How is it possible to say that he had direct knowledge of events that occurred after he had left Rockwell? I mean, all of this failure occurred after he was gone.
05-1272 +++$+++ 36056 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But again --
05-1272 +++$+++ 36057 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Not only not because of this pipe thing that he predicted would cause a failure, not only it was not because of that. But he was gone.
05-1272 +++$+++ 36058 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, the statute doesn't require direct and independent knowledge of the fraud. It requires direct and independent knowledge of the information on which the allegations were based.
05-1272 +++$+++ 36059 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's right. And how would he know except from published report that these blocks were failing?
05-1272 +++$+++ 36060 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ His basis for making that prediction was that he believed that the process would malfunction. He was also aware --
05-1272 +++$+++ 36061 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But prediction is not knowledge. Prediction is not direct knowledge.
05-1272 +++$+++ 36062 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think independent of whether there had every been a public disclosure, it would have been open to Rockwell to argue in response to the original complaint that Stone couldn't consistent with Rule 11 make allegations as to what had happened at the plant after he left because he no longer had an evidentiary basis for doing so. Rockwell could have made that argument, again regardless of whether a public disclosure had occurred, and the question whether it is a permissible inference for a plaintiff to say, I saw them committing systematic environmental violations while I was there and I inferred that the same thing would go on after I left -- the question that's a permissible inference for a plaintiff in a Federal civil action to make is a question to be decided under the Federal Rules of Civil Procedure. The public disclosure provision serves a different purpose entirely. It's designed for those cases in which the relator has sufficient information to file a complaint that complies with the federal rules of similar procedure, but that information overlaps substantially with information in the public domain.
05-1272 +++$+++ 36063 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And his sufficient information you assert is his prediction that these blocks would fail for a reason that turned out not to be the reason for their failure. That is what you say is his direct knowledge.
05-1272 +++$+++ 36064 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That knowledge, but I think it's also important to recognize that the original complaint was not focused on pondcrete specifically. The original complaint alleged more generally that Rockwell was engaged in widespread environmental safety and health violations and was consistently misrepresenting to the Government that it was in compliance and -- even though it knew that it was not doing so.
05-1272 +++$+++ 36065 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you think relators can get part of the Government's recovery even where their initial allegations before the Government intervenes have nothing whatever to do with the reason the Government is ultimately giving money? You think they are still entitled to a piece of the pie?
05-1272 +++$+++ 36066 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I guess I would -- I would disagree with the premise that his reasons had nothing whatever to do with why the Government is getting money. Again to return to the hypothetical I suggested earlier, if the Government then filed --
05-1272 +++$+++ 36067 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you don't believe that, then. You think that indeed the reason the Government was given the money has to be connected with, with his allegations? Right?
05-1272 +++$+++ 36068 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It has to be connected with his allegations. And certainly, if you look at the theory of liability that prevailed at trial, namely that pondcrete blocks were leaking hazardous substances into the environment and Rockwell was nevertheless asking for Government funds based on misrepresentations that it was in compliance, if you look at that theory of liability and then examine Stone's original complaint, clearly that theory is logically encompassed within the more generalized --
05-1272 +++$+++ 36069 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you mean by connected? Is it -- I got -- I'm getting the sense that you think it's enough that he says, look, Rockwell is just lying to the Government in this area, and you say well -- what if what if you added a count in your complaint when you intervene on tax fraud? You found out also that they didn't pay taxes. Would he be able to recover for that, because, you know, if they're going to lie about pondcrete they're going to lie about taxes. Is that sufficiently connected?
05-1272 +++$+++ 36070 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, and I think I would put that with the hypothetical that I offered about the Government adding a claim that Rockwell had misrepresented its compliance with the antidiscrimination laws. And I think there won't be a clear dividing line, but I think this is a line that courts have to draw for other purposes as well.
05-1272 +++$+++ 36071 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it doesn't matter to you if he just, if he's completely wrong? Let's say he says -- you have special interrogatories to the jury and his allegation has always been the pondcrete's going to fail because you're putting in the wrong kind of cement. And it turns out it has nothing to do with that at all. The jury says, no, that's not the reason it failed, it failed for another reason. Is that a sufficient connection?
05-1272 +++$+++ 36072 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think we would -- I think there could still be a sufficient connection even if his reason for thinking the pondcrete failed, they all turned out to be correct. And again, we would emphasize that that's particularly so here because the reason for the pondcrete failure was not an element of the claim. I mean, imagine if this case had been tried to the jury and there had been an established rule in place that if the pondcrete was shown to have failed because of a defect in the machinery, Stone would get a share, but if it was shown to have failed because the human operator added too little cement Stone wouldn't get a share. If that had been the rule there would have been a clear potential for disharmony between the Government and the relator. It would have raised exactly the specter that Justice Ginsburg alluded to, where the Government prefers to emphasize one view of the facts rather than another and the defendant is getting in the way by suggesting that the relator will be deprived of a share.
05-1272 +++$+++ 36073 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Try this hypothetical. The relator says: I know that they've been cheating the Government because I, I observed the president of the company going into a meeting with the chief engineer and another person, and at that meeting I suspect they were devising this scheme to defraud the Government. It turns out there was indeed a scheme to defraud the Government, but that meeting never occurred. It wasn't the president of the company who went into the meeting. It was Charlie Chaplin. And the facts are totally, totally wrong. Does he get money?
05-1272 +++$+++ 36074 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think --
05-1272 +++$+++ 36075 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does he get money just because he came out with the same charge that the Government ultimately proves? Simply because he said the company is guilty of cheating the Government, even though the facts on which he bases it are entirely wrong?
05-1272 +++$+++ 36076 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, I need to know more about the hypothetical, but my initial reaction is that that's a complaint that's easily dismissed based on Rule 11, leaving aside the question of any public disclosure. And I can imagine extreme hypotheticals --
05-1272 +++$+++ 36077 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, assume one that just gets over the line.
05-1272 +++$+++ 36078 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think if the complaint just gets over the line, that is if the evidence in the relator's possession is just barely good enough to sustain the allegation of fraud or at least to allow the suit to go forward, there's no reason to read the public disclosure --
05-1272 +++$+++ 36079 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It turns out to be entirely wrong. Turns out to be entirely wrong, so that the only reason he believed this company was defrauding the Government was absolutely wrong.
05-1272 +++$+++ 36080 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think we would still want to compare the nature of the fraud that the Government alleged with the nature of the fraud that the relator alleged. And obviously this is a question in which the Court is going to have to balance competing interests. It's possible to come up with hypotheticals in which it seems as though the relator has no equitable entitlement to a share. The two things we want to emphasize are, first, in terms of the way that the lawsuit progresses even when the Government doesn't intervene, relators once they file suit, if they are allowed to proceed on their own, they presumably can take advantage of all of the rules of civil procedure. And those include the discovery provisions of the Federal Rules. And it would obviously be self-defeating to tell the relator: You can invoke discovery and you can learn relevant information from the defendant, but if you didn't know it already you can't use it at trial, because if you use something that you didn't have direct and independent knowledge of before the complaint was filed and it turns out to be persuasive to the jury you can be kicked for not being an original source. I don't think Congress can be said to have had that intention. Second, in cases where the Government and the relator intervenes -- where the Government intervenes in the a relator's suit and the two prosecute the suit together, we would want the Court to avoid a rule that would create artificial disincentives to cooperation between the two plaintiffs. And the idea that relatively minor variations in factual assertions that are ultimately not necessary to the establishment of False Claims Act liability, if those carried the day then relators in future circumstances would have a strong disincentive to accede to the Government's request that one view of the evidence be emphasized rather than another. If the Court has nothing, no further questions --
05-1272 +++$+++ 36081 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Explain why it would be a minor variation if what he has identified as a defect in the pipe system and what turns out to be the situation that was covered up is the inadequate cement that caused the loss?
05-1272 +++$+++ 36082 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's a minor variation in the sense that it's not relevant to the defendant's ultimate liability. That is, if we had proved that the pondcrete leaked hazardous substances into the environment and that Rockwell knew that it was having that effect and that it nevertheless represented to the Government it was in compliance, that would be enough to establish the knowing submission of a false claim even if we had no idea what was the reason for the pondcrete failure. And even if Rockwell had taken the most Herculean measures to produce good pondcrete and had not departed from standards of care in any respect, if nevertheless they knew that the pondcrete was in fact failing despite their best efforts and they represented that it was succeeding, they would be liable under the False Claims Act.
05-1272 +++$+++ 36083 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask this question: Supposing he is the only source of the information that's publicly disclosed on which precipitated the filing of the complaint, and after the complaint is filed discovery reveals other violations of law on which the Government prevails, but they do not prevail on the theory of the original complaint. Would he be -- come within the statute or without? The statute focuses on the information that gave rise to the suit, not on what's found by way of discovery.
05-1272 +++$+++ 36084 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, my instinct would be that probably he could still recover. I think the question then would boil down to whether the discovery responses are themselves public disclosures such that they would trigger a new original source.
05-1272 +++$+++ 36085 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Assuming we only look at the public information at the time the complaint is filed.
05-1272 +++$+++ 36086 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, probably that question would raise no public disclosure issue to begin with, because if there had been no -- at least if there had been no public disclosure of the fraudulent conduct that was revealed through discovery, there would be no need for him to satisfy the original source test with respect to those new allegations.
05-1272 +++$+++ 36087 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Stewart. Ms. Mahoney, you have 4 minutes remaining.
05-1272 +++$+++ 36089 +++$+++ FALSE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would like to first just address, the Government's suggested that he could be an original source because he had knowledge of false representations and concealments derived throughout his employment. I just want to emphasize that the Tenth Circuit did not rely on that theory, said that he did not have to have knowledge of any fraudulent acts. It was just enough that he knew something that might be relevant to the proof of an environmental violation. And the reason that the Tenth Circuit said that was because Stone had conceded in his deposition at pages JA-106 and 112 that he did not know about any false representations and he did not know whether DOE was aware of any of the environmental problems.
05-1272 +++$+++ 36090 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is your response to the Government's assertion, which seems to me quite true, that in order to -- in order to prevail it did not have to show why these blocks were not solidified?
05-1272 +++$+++ 36091 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think what --
05-1272 +++$+++ 36092 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It just had to show that they weren't. So it doesn't matter whether they were using his theory or too little cement. It doesn't matter.
05-1272 +++$+++ 36093 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the point is that Mr. Stone wasn't there when the manufacturing problems occurred, so he didn't actually have direct knowledge that pondcrete was leaking. That's the real point. What they're really saying is that his theory about why it might leak some day didn't turn out to be important to the gravamen of the claim. This is a fraud claim. He didn't know anything about fraud and he couldn't have known they were leaking at the time, 5 years later because he wasn't there. And the statute requires direct knowledge. The Government's suggestion that somehow Rule 11 will be the basis on which we can sort out who's an original source and who's not strikes me as rather odd. First of all, nothing hardly ever gets dismissed on Rule 11 grounds. And this is a jurisdictional statute that requires direct knowledge. A relator could read an indictment and satisfy Rule 10 just by copying the allegations. Does that count? I think that direct knowledge means there can't be undue conjecture. The only thing that he said he knew, even though it wasn't the gravamen of the claim, was clearly based upon conjecture, a belief that in his opinion this pipe would not work. And then when we get to the trial, there were 55 witnesses. Stone had not identified a single one of them as a person with relevant knowledge at the outset of the case when he answered his interrogatory responses. In addition, every person -- no person he identified testified at the case. He identified four documents that he said were key. None of them were introduced. He knew nothing about what went to trial. In addition, I'd like to focus on the "voluntarily provide". That is a separate ground for reversal in this case, and would emphasize that the Tenth Circuit said the engineering order that refers to removal of sludge and says in my opinion this won't work, that's all it says -- the Tenth Circuit says that's fine. The district court made a factual finding that Stone had not communicated his concerns to the Government about pondcrete, saltcrete, or spray irrigation, the three theories issues at issue at trial here.
05-1272 +++$+++ 36094 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There were other documents. He said there were other documents and the district court said sorry, you came up with that too late, I'm not going to look at the other documents.
05-1272 +++$+++ 36095 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, what they're referring to is the affidavit, I think. He filed an affidavit at the outset of the case when Rockwell filed the motion to dismiss and then tried to do a new one 10 years later that was rejected. Thank you very much.
05-1272 +++$+++ 36096 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you Ms. Mahoney. The case is submitted.
05-128 +++$+++ 36100 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first today in 05-128, Howard Delivery Service v. Zurich American Insurance Company. Mr. Strain.
05-128 +++$+++ 36102 +++$+++ FALSE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: We are here about a bankruptcy priority, and bankruptcy priorities must be clearly granted by statute or they are not granted at all. That's the first principle of bankruptcy law that this Court has laid down, that equal priority, that equal distribution is the first principle, and every priority is a deviation from that first principle, and therefore, they must be clearly set out in the statute. This Court has been very clear over and over on those bedrock principles. Applying them here, Zurich must demonstrate that its workers' comp insurance policy receivables are clearly included within the statutory phrase of 507(a)(4), contributions to an employee benefit plan arising from services rendered within 180 days. Judge Niemeyer -- Judge Niemeyer followed those principles, those bedrock principles of this Court. The two concurring opinions below did not follow nor even mention those principles, and that led them to err, we -- we submit.
05-128 +++$+++ 36103 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can I get you to step back just -- the presumption that you began with. What -- what's your strongest authority for that? The first thing you cite in your brief is a dissenting opinion of two justices.
05-128 +++$+++ 36104 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The strongest authority for that, Your Honor, is the opinion in Kothe, K-o-t-h-e, a 1930 opinion, followed by Nathanson, followed by Embassy Restaurant, and it is the --
05-128 +++$+++ 36105 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Nathanson is the -- you cite the dissenting opinion for this proposition?
05-128 +++$+++ 36106 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. It is -- Nathanson -- the -- the citation, the page citation, is to the majority -- is to the majority opinion. The principle is laid out in the majority opinion, Mr. Chief Justice. And Nathanson majority opinion relied on Kothe, and Nathanson majority opinion was followed in 1959 by this Court in Embassy Restaurants, and followed in 1968 by this Court in Joint Industries Board also dealing with bankruptcy priorities. That is the bedrock principles in the -- of the majority decisions of -- of this case -- of this Court. And what we have here, Your Honor and members of the Court, is that a -- an insurance policy -- what we're talking about here is an insurance policy, and the statutory language refers to an employee benefit plan. We don't even have a plan here. We have a policy. There's a citation in the Zurich brief at page 20 to this Court's opinion in Pegram v. Herdrich, which I think drives that point home. It is an incomplete citation. The omitted language from the Zurich brief is as follows. From page --
05-128 +++$+++ 36107 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where -- where is the unomitted language? What -- what page of the brief are you quoting from?
05-128 +++$+++ 36108 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's on page 20, Your Honor, of Zurich. Citing to page 223 from this Court's opinion in Pegram, the omitted language, which comes in the middle of the quotation given at page 20, is as follows. Thus, when employers contract with an HMO to provide benefits to employees subject to ERISA, the provisions of documents that set up the HMO are not, as such, an ERISA plan. Now, that is what our case is, an insurance policy that incorporates a duty to pay benefits subject to workers' comp laws of the different States. So even under the citation in -- the full citation in Pegram, it is seriously questionable whether this insurance policy is a plan at all. The statute requires an employee benefit plan. The -- this Court requires that it be clear from the statute that this insurance policy is itself a plan.
05-128 +++$+++ 36109 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, ERISA -- ERISA makes it very clear that -- that a plan to pay insurance for employee benefits, whether it's disability or retirement or whatever else, is an employee benefit plan and -- and explicitly excludes workmen's comp because otherwise it would fall within that definition of an employee benefit plan.
05-128 +++$+++ 36110 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that is -- is correct, Justice Scalia.
05-128 +++$+++ 36111 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know that's a different statute. I'm not saying that the -- that the definitions of that statute have to apply here, but the definitions of that statute at least demonstrate that it is a permissible use of the -- of -- of the term employee benefit plan.
05-128 +++$+++ 36112 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I disagree with you, Justice Scalia --
05-128 +++$+++ 36113 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Tell me why.
05-128 +++$+++ 36114 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to this -- to this extent. The definition of employee benefit plan under ERISA is in two parts: a section (a), which is a -- which is a listing; and a section (b), which is incorporation of provisions of the Taft-Hartley law. And it's under the section (b), the incorporation of provisions of the Taft-Hartley law, that workers' compensation comes in. And, of course it is then excluded by -- by ERISA. But a -- the ERISA definition does not demonstrate that a -- an insurance policy is a plan. This Court has dealt with the issue under ERISA of whether everything scheduled in ERISA is a plan or not. In the Massachusetts v. Morash decision, this Court determined whether a vacation -- unpaid vacation policy was a plan under the definition of ERISA, and this Court held that it was not. So it is clear from this Court's precedent that whether or not something is listed in ERISA, even if it applied -- in that case, ERISA applied; in this case it does not -- even if it applied, would not qualify as a plan.
05-128 +++$+++ 36115 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would it -- would it if the employer were self-insured? Can you be self-insured for workers' comp?
05-128 +++$+++ 36116 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The employer can be self-insured for workers' --
05-128 +++$+++ 36117 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would that be a plan then?
05-128 +++$+++ 36118 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it would not, Your Honor, because the self-insurance for workers' comp, as I understand them, what they normally do is, just as the Court referred to in that omitted section of the Pegram opinion, is it simply is -- is an agreement that it will provide the necessary wherewithal and bonding to pay the benefits as specified, as they may change from time to time in a State statute. There is none of the other things, as I understand it, that the Court dealt with in Pegram which would make it a plan that are present in either a workers' compensation insurance policy or a self-insurance program, as is permitted and --
05-128 +++$+++ 36119 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it would be an employee benefit program, but not a plan.
05-128 +++$+++ 36120 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be, Your Honor, or in the case of our case, an employee benefit policy. And I would like to pick up on that, if I may, because it is not --
05-128 +++$+++ 36121 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Before you -- before you go on, could you satisfy a curiosity of mine? Maybe Mr. Verrilli should be the one I should ask this, but you must have your -- your version of it. How do you decide whether an insurance premium is for work that was done within the last 180 days? How -- how do you calculate it, whether that characteristic of the -- of the statute is complied with?
05-128 +++$+++ 36122 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I don't know that there is any good way to do that, and I think that's one of the anomalies in trying to superimpose an insurance policy under the rubric of an employee benefit plan. Now, premiums -- premiums, of course, there is a -- there is a mechanism --
05-128 +++$+++ 36123 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, if it said premiums due within the last 180 days, I could understand it --
05-128 +++$+++ 36124 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And there is a mechanism in the policy to determine the payment of premiums.
05-128 +++$+++ 36125 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But isn't -- doesn't the mechanism take into account the number of employees who are on the rolls at any given time?
05-128 +++$+++ 36126 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe it does, Your Honor.
05-128 +++$+++ 36127 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if that's the case, then -- then doesn't the premium that you're supposed to pay depend in -- in -- on the number of employees within the last 180 days, which in turn depends on their working in the last 180 days?
05-128 +++$+++ 36128 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is not my understanding -- and I may be mistaken because this policy was not placed in the record by Zurich. It is not my understanding that that is how the policy premium calculations are made, Your Honor. Now --
05-128 +++$+++ 36129 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, how -- maybe you just don't know the answer.
05-128 +++$+++ 36130 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- certainly, Justice Souter, you may be right, but we've checked the proof of claim filed by Zurich which started this off, and they did not attach the workers' compensation insurance policy to it. So it is not in the record, and I simply don't know --
05-128 +++$+++ 36131 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So that's -- that's really not an issue for us.
05-128 +++$+++ 36132 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I will not say that it's not an issue, Your Honor. It is -- it is an issue --
05-128 +++$+++ 36133 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if you want to make it an issue, you'd have to get the -- the predicate in the record to do it, and -- and we just don't have that.
05-128 +++$+++ 36134 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-128 +++$+++ 36135 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We -- we couldn't resolve that.
05-128 +++$+++ 36136 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or else establish that there's no conceivable way that 180 days makes any sense.
05-128 +++$+++ 36137 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and I -- I think that, as -- as I hope may blend the answers to both questions. I think that --
05-128 +++$+++ 36138 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Consider us together, yes.
05-128 +++$+++ 36139 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We're together on this. (Laughter.)
05-128 +++$+++ 36140 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I think that is -- I think that is where we -- where we are. We have a policy that was not placed in the record by the applicant for this priority. We have our general knowledge of what workers' comp insurance policies are. We have a statutory requirement which reads, a calculation with 180 days, which I suggest is an anomaly when we compare it to the statutory language.
05-128 +++$+++ 36141 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is there anything in the statute which says how promptly the premiums have to be paid as it -- to -- to make it analogous, say, to withholding where you might have to pay every quarter on -- by a certain day? Does -- does the statute regulate when and how promptly the premiums must be paid, or is that just all comprehended in the terms of the policy agreement?
05-128 +++$+++ 36142 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well -- well, certainly the priority statute does not because the priority statute doesn't --
05-128 +++$+++ 36143 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. I meant the State workmen's comp law.
05-128 +++$+++ 36144 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The State workers' -- workers' comp law. Your Honor, I -- I don't know the answer. I know that the State laws -- I know that the State laws vary, and we have 10 different workers' comp laws that allude to or mention workers' comp insurance policies present just in this case. So it may be that those statutes might provide some of the basis for an explanation, but I simply don't know the answer to that. I did want to --
05-128 +++$+++ 36145 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If you have an employer who says, I promise to give $200 a month per worker to a fund, which money will go to pay their health costs when they're sick, that's plainly covered.
05-128 +++$+++ 36146 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it is, Your Honor.
05-128 +++$+++ 36147 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And now suppose it's exactly the same, but instead of his paying $200 a month, he pays $200 to an insurance company in return for a promise that they'll pay precisely the same amount to the employee if he gets sick. In your view, that's not covered.
05-128 +++$+++ 36148 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In our view -- in our view, Your Honor -- I -- if -- if I may, I think that the hypothetical you pose is not quite our case.
05-128 +++$+++ 36149 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course. It's not meant to be.
05-128 +++$+++ 36150 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it --
05-128 +++$+++ 36151 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I want to know how you are going to answer my hypothetical. (Laughter.)
05-128 +++$+++ 36152 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I -- I think the -- the focus of the answer should be on whether it is an employee benefit or not.
05-128 +++$+++ 36153 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm not -- I'm asking you --
05-128 +++$+++ 36154 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-128 +++$+++ 36155 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- to answer my hypothetical please. If in fact -- you didn't want me to repeat it?
05-128 +++$+++ 36156 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, no. No, I --
05-128 +++$+++ 36157 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then what is the answer?
05-128 +++$+++ 36158 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I understand it, Your Honor.
05-128 +++$+++ 36159 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In your view, is my hypothetical covered or not?
05-128 +++$+++ 36160 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I think it is not, Your Honor.
05-128 +++$+++ 36161 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It is not.
05-128 +++$+++ 36162 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think --
05-128 +++$+++ 36163 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And therefore, if we accept your interpretation, then all those employers who, instead of contributing directly to health funds, instead buy insurance policies to do the same thing, will discover they do not have the advantage of the fifth priority.
05-128 +++$+++ 36164 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ All right. And now I see -- now I see, Justice Breyer, I did misunderstand -- misunderstand the facts. Those facts clearly are covered. They're -- they're covered under --
05-128 +++$+++ 36165 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, if they are covered -- if they are covered, as I thought, then what is the difference whether the employer buys a policy whereby the insurance companies pays for their health benefit when they're sick or pays for their accident benefit when they have an accident at work?
05-128 +++$+++ 36166 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think the difference are -- are several. Number one is what the employer is doing here is insuring itself against a claim that would otherwise be against the insurer. That was not in your hypothetical, Your Honor. That makes what we have here a policy for an employer benefit. It is not an employee benefit. Now, the -- the employer is the insured.
05-128 +++$+++ 36167 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The -- the correlative hypothetical would be a plan such as Justice Breyer describes in which the employer has contracted to pay his employees $200 a month for when they're sick, and that's a contractual obligation of his, and then he buys insurance to cover that contractual obligation.
05-128 +++$+++ 36168 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
05-128 +++$+++ 36169 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You say that would be this case.
05-128 +++$+++ 36170 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be this case, Your Honor.
05-128 +++$+++ 36171 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you say that wouldn't be covered.
05-128 +++$+++ 36172 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that would not be covered, and that would not be covered in great part because it is an employer benefit, employer choice, employer benefit. And what we have in this case --
05-128 +++$+++ 36173 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's -- that's a better way to put it. If -- if that's right, then what you're saying, as I understand it, is in those cases where an employer goes to an insurance company, they give a contractual promise to pay the employee when he gets sick in return for a premium by the employer -- and it's a health benefit or a vacation benefit, the most typical thing -- you're saying all those -- all those -- there's no fifth priority. They don't -- can't take advantage of that.
05-128 +++$+++ 36174 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Your Honor, what -- what I'm saying is and what we have here, if what you're describing, if I understand it correctly, is a normal fringe benefit. That is, an employer agrees to take out a -- to contribute to a pension fund for the benefit of the employees. That is clearly covered. That was the kind of thing dealt with in Embassy Restaurant and the Joint Industries Board that (a)(4) was intended to supplant or overrule.
05-128 +++$+++ 36175 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And why did --
05-128 +++$+++ 36176 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And that's clearly covered.
05-128 +++$+++ 36177 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- why did you answer Justice Scalia's question as you did? That is also an employee benefit, that is, vacation, sickness.
05-128 +++$+++ 36178 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I answered that because, as Justice Scalia changed the hypothetical, it was not an employee benefit. It was the employer insuring itself, buying an annuity or, like we have here, insuring itself, so it -- so it could make the payments. What we have here, Your Honor, is a situation where, as it is admitted in the record, the employees don't benefit at all. As Zurich has admitted in this record at page 17, the employees are in the same position whether there is insurance or no insurance. In fact, the irony here is that if Zurich prevails, not only do the employees not benefit, they are harmed because there are in the (a)(4) -- the (a)(4) priority claimants are a total of 1.6 million, including the 400,000 of Zurich. All the others are health and welfare funds such as Justice Breyer was -- was posing. Zurich is not. But what happens -- and there's not enough money to pay everyone. What happens is if the Zurich Insurance Company receivable gets an equal priority with the health and welfare funds, then there is a dilution of the money going for the employees' health and welfare and pension, a 25 percent, in this case, dilution of that money because the employer chose to insure itself for its liability, potential liability, to the employees. The employer benefited from that insurance. In some States, it would be required to have the insurance. In most States, it has the option of having insurance or not.
05-128 +++$+++ 36179 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would the same thing happen under multi-employer plans? Would not the employees typically receive the benefits even if their employer did not make the contributions that it was required to make?
05-128 +++$+++ 36180 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would -- they would typically -- in a multi-employer plan, as many of our priority claimants are here, because the money is spread, the employees still get some money. But if we consider the greater whole, the money, the available res, the available pot, to play those -- pay those employees is diminished. So --
05-128 +++$+++ 36181 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought there's also, isn't there, the Pension Benefit -- even if there's no money in the till for the plan, isn't there a Government fund so that the worker would receive the benefit in any event if -- I don't see the distinction that you're making based on whether the worker would get a benefit whether or not the employer made the contribution.
05-128 +++$+++ 36182 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, there certainly is -- there certainly are -- in most States at least, there certainly are funds that step in if a workers' comp insurer or an employer does not make -- is not available to pay an award to a workers' comp injured -- a worker who was injured on the job. On the other -- on the other hand, Your Honor, whether such funds exist to step in and supplant the payments not made to -- in the ordinary health and welfare and pension context, I think not, Your Honor.
05-128 +++$+++ 36183 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I recognize there are different schemes. The only one I'm familiar with is my former State. But did I understand from your answer that in some or many of these States, the employer is free not to have insurance? He can be self-funded?
05-128 +++$+++ 36184 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes, that's correct, Your Honor, in -- in --
05-128 +++$+++ 36185 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And is there any requirement that there be an actual fund in place or is it just a general liability?
05-128 +++$+++ 36186 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there is -- there is -- it is a -- a traditional self-insurance with the overlay. That is, there -- there must -- there must be a showing of the wherewithal, but with the additional overlay, in all or virtually every State which permits this, of the requirement of a bond. And that's --
05-128 +++$+++ 36187 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ A bond.
05-128 +++$+++ 36188 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- which is an interesting point because if Zurich prevails, we have the -- the camel's nose is under the tent because in all the self-insurance contexts, the bond issuer will have an equivalent claim to Zurich. Under their broad reasoning or broad interpretation of the statute that should be considered narrowly -- under the broad interpretation they want, that camel's nose would be under the tent, and the bond issuer would have an equivalent claim to Zurich on its policy. To extend that a little further, what Zurich did here -- was an insurance company -- it required letters of credit of Howard Delivery, the debtor, to issue its policies. It drew down those letters of credit $1.1 million. F&M Bank, the letter of credit issuer, of course sought security from the debtor, but not enough. As is commonly the situation once the liquidation is finished, there wasn't enough security. So F&M, which had facilitated Zurich's workers' compensation insurance by its letters -- letters of credit, would have an equivalent claim to Zurich as well. So more and more of the camel is going under the tent. This is a very broad interpretation with major implications that they seek and it is completely inappropriate under the bedrock principles of approaches to priorities under bankruptcy law.
05-128 +++$+++ 36189 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if there were letters of credit, why is Zurich injured? Because the letters of credit were not large enough to cover the premium liability?
05-128 +++$+++ 36190 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They -- they were not, Your Honor. They were not.
05-128 +++$+++ 36191 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ See, what I don't understand --
05-128 +++$+++ 36192 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Strain --
05-128 +++$+++ 36193 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Strain, you -- you mentioned --
05-128 +++$+++ 36194 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in -- in your brief, you seem to put considerable stress on something that I haven't heard you say one word about so far, and that is that these -- workers' compensation is State-mandated. They're not negotiated or even employer-determined benefits. They are whatever the law prescribes. And you haven't -- haven't mentioned that, so I'm wondering where that fits into your picture.
05-128 +++$+++ 36195 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- I haven't mentioned it. I'll take this opportunity to mention it, Justice Ginsburg, because it is a very important point. We know that in the statute -- (a)(4) we're talking about -- section (a)(3) -- these are numberings before 2005 amendment to the act. The language stayed the same. The numbers were -- are different. But there are two that work together. The (a)(3) priority for wages for the employees and the --
05-128 +++$+++ 36196 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where does (a)(3) appear? There -- there was that discussion in your brief, and I'm darned if I could find (a)(3).
05-128 +++$+++ 36197 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Section (a)(3), Your Honor. I'll refer you, if I may, to the brief of amicus at page 11, and that's why I mentioned, Your Honor, that there is a new numbering because the numbering in the amicus brief is using the 2005 numbering in the revised statute. And what is listed there as (a)(4) is the wages priority, and at the next page, (a)(5) is the priority that we're talking about as -- as (a)(4).
05-128 +++$+++ 36198 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it would have been nice to have it in your brief --
05-128 +++$+++ 36199 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree.
05-128 +++$+++ 36200 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- and numbered -- numbered 3 instead of 4. That would have helped a lot.
05-128 +++$+++ 36201 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I certainly recognize that, Your Honor. The -- the provision of (a)(3) and (a)(4) -- they work in tandem to protect the workers. They share a cap. The more a worker benefits from a wage priority, the less the worker benefits from the -- from the employee benefit plan priority. And so they work together; they work in tandem, which gives meaning to (a)(4) under many of the canons of construction that -- that we're familiar with. It would not work -- it's an anomaly that an insurance company receivable would share the cap with the wages priority. That is simply an anomaly. And when we look to the legislative history, it is absolutely clear, Your Honor, that the fact of the judicial -- the statutory mandate for workers' compensation insurance is very important because what is spoken about, as Judge Niemeyer pointed out in his dissent below -- what is spoken about in the legislative history over and over again is a wage substitute or a wage surrogate that employers do not give -- will lower the wages but provide fringe benefits. So the package remains the same. Now, that's not a workers' compensation insurance policy, but that is the wage surrogates that the Congress was looking at.
05-128 +++$+++ 36202 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let -- let me, if I may, ask you about other possible wage surrogates because what you're saying now seems to me to mesh with the argument, another legislative history argument, to the effect that the -- the current provision was meant to overrule two prior cases of this Court. And the -- the question I have turns on the fact that the -- the language is broader than what would merely have been necessary to overrule those cases. So my question is if the broader language does not cover the premiums that we're concerned with here, what other items dealing with -- with wage substitutes would it pick up, would it include?
05-128 +++$+++ 36203 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I -- I would answer from -- in part from the legislative history of some of the things discussed were joint apprentices and training programs, by way of example, as new forms of fringe benefits that some of the witnesses wished to see to ensure would be covered. I think that sort of thing could be covered under -- under this language as well. We know from the legislative history -- we know from the legislative history that there was absolutely no intention to incorporate the definition of ERISA, and we know from this Court's teaching in the decision in United States v. C&F Fabrication just 10 years ago that it is absolutely inappropriate to incorporate into the bankruptcy statute an ERISA definition where Congress does not provide. That's an absolute square holding of this Court that exactly should lead to rejection of the effort by Zurich to incorporate -- to ask the Court to engraft onto this statute a -- a definition from another statute. If there are no questions at -- additional questions at this time, I would like to reserve my remaining time.
05-128 +++$+++ 36204 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Strain. Mr. Verrilli.
05-128 +++$+++ 36206 +++$+++ FALSE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: I think it's important to focus at the outset on exactly what a workers' compensation plan provides. A workers' compensation plan provides health insurance that pays for the medical costs of a workplace accident, disability insurance --
05-128 +++$+++ 36207 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're begging the question by calling it a plan. I mean, that -- that's -- that's one of the issues here. Why don't you tell us what workmen compensation laws require?
05-128 +++$+++ 36208 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'd be happy to go right to the question of whether it's a plan, Justice Scalia, because I think it's indisputably a plan under this -- under the dictionary definition, ordinary meaning of plan, this Court's interpretation of it in Pegram, under ERISA, under the Department of Labor's interpretation of it, and under plain common sense. A plan is an arrangement or program or scheme, as Pegram said, to -- established by an employer or an employee organization to secure the provision of benefits to an employee through insurance or otherwise.
05-128 +++$+++ 36209 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Verrilli, there's no employer or employee, for that matter, who's doing the planning. The planning is all done by the Government --
05-128 +++$+++ 36210 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ See, I -- I --
05-128 +++$+++ 36211 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- because what's covered is prescribed by law.
05-128 +++$+++ 36212 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think there is a plan for this reason, Justice Ginsburg. The -- what the law prescribes is that which the employer must provide to the employees. But it's not a self-executing law. The -- the employer has got to make arrangements to ensure that the benefits are provided, and under the laws of the vast majority of the States, the employer has options for doing that. The employer can contract with an insurance company to do it. The employer can self-insure to do it. And by the way, Justice Kennedy, there are quite stringent requirements for fiscal solvency and there is a surety bond that needs to be posted in order to -- in order to self-insure.
05-128 +++$+++ 36213 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the it is not negotiable. We think of a health plan, a retirement plan. That doesn't have to be any set coverage. It's negotiated or the employer, if it's not a collective bargaining situation, determines what the benefits will be. Here, the law determines what the benefits will be.
05-128 +++$+++ 36214 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree that that aspect of the arrangement is not negotiated, but there is nonetheless an arrangement that secures and guarantees the provisions of the benefits, and that's the plan. There are steps that the employer has to take to secure the provision of the benefits, here through the purchase of insurance, and that is the plan. The plan is the arrangement to secure the provision of benefits. Certainly they are --
05-128 +++$+++ 36215 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So that if an employer decides to -- because his employees have had a good year, he's going to put in a new parking lot for them -- he -- his plan is to have a contract with a paving company to pave the parking lot. Are the payments under that contract's contributions to an employee benefit plan?
05-128 +++$+++ 36216 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think the answer to that question is yes, Mr. Chief Justice. I think the answer is no. I mean, I suppose you could say that those are -- that's a benefit provided to employees, but --
05-128 +++$+++ 36217 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems like the consequence of your theory though --
05-128 +++$+++ 36218 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so. I think there's a limiting principle here and I think the limiting principle is to look to ERISA. ERISA has a set of -- it defines what employee benefits are for ERISA purposes, and it's not -- and it's not these benefits and similar things. It's an exhaustive list of benefits. The parking lot isn't on the list. Similarly, a break room wouldn't be on the list. None of those things are on the list, and therefore, I think by reference to ERISA, one can relatively easily exclude those --
05-128 +++$+++ 36219 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but providing for workers' compensation through insurance, rather than through self-insurance, is also not on the list.
05-128 +++$+++ 36220 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think both of them are on the list actually, Mr. Chief Justice, because both of those are programs or arrangements to secure the provision of benefits, and one is through insurance and the other through self-insurance. So I think they're plans in both instances.
05-128 +++$+++ 36221 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's your answer to the 180 days question I answered -- I asked? You know, the provision provides contributions. It doesn't say just contributions to an employee benefit plan. It says contributions to an employee benefit plan arising from services rendered, and then it goes on to say, but -- but the services have to be within the last 180 days.
05-128 +++$+++ 36222 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
05-128 +++$+++ 36223 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How do you square that with -- with the purchase of block insurance like this?
05-128 +++$+++ 36224 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, because the amounts that Zurich is seeking in premiums are the amounts that were due for providing coverage during the 180 days before Howard ceased operations, and the reason that arises from -- it seems to me there are two ways in which that could arise from services rendered. It can arise from services rendered to the employees in the following sense. Howard has the obligation to provide those benefits by virtue of the fact that the employees are working for it during that period of time. That's what Judge King said in his opinion in the Fourth Circuit, and that seems to me exactly right. Alternatively -- alternatively, as other courts have suggested, the -- the services rendered --
05-128 +++$+++ 36225 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But each of those insurance premiums that's paid by the employer doesn't just cover workers who've worked for the last 180 days. Each premium is divided among all the workers who've been working there for years. Some of the premiums are going to go to -- to allow the insurance company to pay in the future people who have been there for 20 years.
05-128 +++$+++ 36226 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-128 +++$+++ 36227 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, it just seems to me it's a square peg in a round hole. I -- I don't see how you make sense out of that 180 --
05-128 +++$+++ 36228 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I appreciate that, Justice Scalia, but I do think the -- the obligation on the part of the employer to keep paying the premiums during that period arises from the fact that the employees are continuing to work during that period. And what the -- and what the insurance company is seeking to recover is merely the cost of providing the insurance during that period of 180 days which arises --
05-128 +++$+++ 36229 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If -- if they don't pay the premium with respect to the 180 days, if there's an accident during the 180 days, the insurance doesn't cover the accident.
05-128 +++$+++ 36230 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's an important point, Justice Souter, and I would like to focus on that and I -- I hope correct something that the Petitioners said. With respect -- it all depends on when the insurance policy cancels. If there's nonpayment of premiums, then the insurance company has the right to cancel the policy, and there has -- there's a notice provision, 10 days in some jurisdictions, up to 30 days in others. But they have a right to cancel the policy. If an injury occurs before cancellation, that injury is covered and it's covered for all time, even if the policy subsequently cancels. But the key thing here, I think, the critical point is that without the priority, the -- the insurance company is going to look at the situation and say, we have very little prospect of recovering if this company actually goes down the tubes and into bankruptcy as a general unsecured creditor. Therefore, we need to get out of this situation fast. And they -- at that point, they're going to cancel the policy. There's going to be much more of a hair-trigger sense of the need to cancel policies. When they cancel policies, the immediate consequence, of course, is that the -- that the employees are no longer covered. And then, the -- it seems to me, the secondary consequence, which is also quite important --
05-128 +++$+++ 36231 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You really think that -- that they cut it that fine? They say, oh, yes, this guy is going to go into bankruptcy. We're pretty sure about that, but don't worry. We'll have priority.
05-128 +++$+++ 36232 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's absolutely --
05-128 +++$+++ 36233 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think as soon as they smell bankruptcy, they're going to pull the plug anyway.
05-128 +++$+++ 36234 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- I -- I disagree with that, Justice Scalia. I think in -- in the real common practice here, the amount that they can recover and the amount that they think they have a prospect of recovering is a very important determinant in their decision on whether to hang in and how long to hang in until they get to the chapter 11 process where the debtor can then husband its assets and can pay the workers' compensation premiums as an administrative claim. So I think it's a -- it's a significant determinant. Without the priority, there's going to be a hair trigger, which means coverage is terminated sooner, and it's going to mean for many employers that they're going to have to go out of business because you can't operate without --
05-128 +++$+++ 36235 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There -- there are two parts in my mind to this. The question is what is the difference between a workmen's -- worker compensation and health benefits. I agree with you, so far tentatively, that that difference can't lie in the nature of the contract providing the benefit. Now, I know they'll want to argue the contrary, but put that to the side. If it doesn't depend on that, it depends on the difference between workers' compensation and health benefits. And you want to say there isn't enough of a difference there, though they argued the mandate makes a difference. Of course, you could mandate health benefits too, and I don't think that would matter. But if you're right, what about a -- a long-term contract for bottled water for the workers?
05-128 +++$+++ 36236 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think my answer would be the same as to the Chief Justice that in some sense, I suppose you could say it's an employee benefit; in some sense, I suppose you could say that there's a contract to provide it. But I think you can set the outer bounds here by reference to the employee benefits that ERISA defines as employee benefits. But in any event --
05-128 +++$+++ 36237 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, actually -- this is -- to me anyway, this is an important point because at some point you have to draw the line between the things of a kind that workers might bargain for and things not. Now, if that's where we're getting there, the history of workers' compensation may cut the other way.
05-128 +++$+++ 36238 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't -- I don't think so, Justice Breyer --
05-128 +++$+++ 36239 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because? What's -- what's the principle I'm going to use?
05-128 +++$+++ 36240 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, first, if I can make a prefatory point, that the bottled water example doesn't distinguish the Petitioners' position from our position. The Petitioners' position is that if it's a -- if it's a negotiated-for, bargained-for benefit, it's in. So I don't think that's a -- it provides a limiting principle. And it seems to me, wherever the line is --
05-128 +++$+++ 36241 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, sure, if they have a contract, as part of their -- part of their contract, they get the bottled water, that's -- that's easy to see why that's covered. But the -- the question is when it's not. It's just something that the employer does in the course of his business that has -- that benefits both his business and his workers.
05-128 +++$+++ 36242 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, but --
05-128 +++$+++ 36243 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It has to be arising from services rendered. I mean, it -- it really has to be part of the contract with the employer --
05-128 +++$+++ 36244 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I don't think that's right. For example, in the -- in the case of most voluntarily provided health insurance, the vast majority of employees in this country -- it's not bargained for. It's something an employer provides unilaterally --
05-128 +++$+++ 36245 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there's one feature of this that is -- does make it different, at least one, and that is this is a benefit to the employer in the way that the others are not. The employer -- there's a tradeoff in workers' compensation. It's not just I'm going to pay benefits when the person is injured, but I'm going to get off the hook for the tort liability that I might otherwise have. And in the other cases of the other benefits, there is no -- no such tradeoff.
05-128 +++$+++ 36246 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the fact that there may be a benefit to the employer doesn't make it any less of an employee benefit. The question is whether there is a plan that provides employee benefits, and the insurance coverage provided by workers' compensation are clearly employee benefits. I also -- and -- and, of course, the with -- with respect to that tradeoff, that's -- that tradeoff is an employee benefit too, Justice Ginsburg, because the -- the employee has no-fault liability, gets paid promptly rather than have to sue and wait years, doesn't lose his or her job as a result of the injury or as a result of bringing the lawsuit. So I don't think you can make the judgment that it's not an employee benefit plan on the basis of that fact. And of course, voluntarily provided benefits also benefit the employer by making it a more attractive place to work and -- and --
05-128 +++$+++ 36247 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask this question, Mr. Verrilli?
05-128 +++$+++ 36248 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- better morale.
05-128 +++$+++ 36249 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can I -- can I ask you -- it goes back to the first point your opponent made. What is the purpose of granting the priority? It seems to me the purpose of the priority is to increase the likelihood that the wage claims will be paid. And if you -- if you win, it won't affect it one way or another, as you acknowledge in your brief. But it seems to me the priority should serve the purpose of increasing the likelihood that the benefits would actually flow to the employee benefit plan.
05-128 +++$+++ 36250 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think there are four things I'd like to say in response to that, Justice Stevens. First, there isn't a textual hook for -- for that being a determinant, and it -- and it --
05-128 +++$+++ 36251 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it talks about contributions to an employee benefit plan which one would not normally think of as paying insurance premiums.
05-128 +++$+++ 36252 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And the second thing -- well, I think to the contrary, Justice Stevens. I think in the overwhelming majority of instances, the contributions employers make to employee benefit plans is the payment of insurance premiums to secure the benefits. Collectively bargained benefits provided by union trusts are a small minority of the benefits that are provided to workers in this country. But -- but going back to the specific question, of course, as Justice Alito's question earlier suggested, in a multi-employer pension plan situation, the plan is obligated by law to provide all vested pension benefits whether or not the employee's employer has defaulted on its payments into the fund. So it's in exactly the same position as the insurance company is with respect to that set of benefits, and therefore, the argument doesn't draw a distinction between the two.
05-128 +++$+++ 36253 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Verrilli, what -- what is your response to Mr. Strain's assertion that if you get a priority, so should the secondary insurer, that is, the -- the bank that gave letters of credit? They're just insuring -- that -- that's part of the plan too. They couldn't have gotten the insurance from you unless they got the letters of -- of credit from the bank, which is a kind of secondary insurance. And also in the case of self-insurance, which is something of a plan -- I -- I guess you'd call it a plan -- what about the -- the person who puts up the bond? That person is a kind of insurer, just as you are. Do all of these people now -- now get bumped up to the head of the line?
05-128 +++$+++ 36254 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The answer is no. The statute expressly covers this. The last provision of section 507 says no subrogation, and those would be subrogation situations. So the statute just expressly covers it. They aren't -- they don't get bumped up in the line, period. I don't think there's any dispute about that. If I could, though, return to a -- a point that --
05-128 +++$+++ 36255 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where -- where does that appear?
05-128 +++$+++ 36256 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. I can't direct you to where it is --
05-128 +++$+++ 36257 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, because it's not in the briefs --
05-128 +++$+++ 36258 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Justice Scalia.
05-128 +++$+++ 36259 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- just -- just as the contract isn't before us.
05-128 +++$+++ 36260 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It should be in the briefs. It's not, but that is what the last section of section 507 says, that those who are subrogated to the rights of someone with a priority don't get the priority. So that's just taken care of by the statute.
05-128 +++$+++ 36261 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if the payment of the premiums doesn't increase the likelihood that the employees will get the benefits, why should you get priority?
05-128 +++$+++ 36262 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does increase the likelihood, and it goes back to the example I was -- I was discussing with Justice Souter earlier. And -- and what -- it will not affect employees who are injured before cancellation, but it will accelerate cancellation. And as a result of accelerating cancellation, employers who are injured after cancellation will not get the benefits. And so it will --
05-128 +++$+++ 36263 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What -- what about the -- the example we discussed, payment of a bond premium if you're self-insured?
05-128 +++$+++ 36264 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I think that -- I think, again, that last section of 507 takes care of that.
05-128 +++$+++ 36265 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How do we know what you've just told us? Is that in the record? You're just assuring us what the content of the insurance contract is. Right? But we don't have the insurance contract.
05-128 +++$+++ 36266 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The insurance contract is not in the record. That's right, but the --
05-128 +++$+++ 36267 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So we -- we have your assurance that that's what happens here.
05-128 +++$+++ 36268 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As a systematic matter -- it seems to me as a systematic matter, this is what insurance companies will do. I don't think that's dependent actually, Justice Scalia, on -- on the particular terms of this contract. I'm saying as a systematic matter insurance companies --
05-128 +++$+++ 36269 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it has to be that way? I could write a contract differently.
05-128 +++$+++ 36270 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well -- well, sure, but the contracts comply with State law. State law sets notice periods for cancellation, 10 days minimum, up to 30 days. We've cited those in our briefs. And so in most States and in many States here, within as few as 10 days after nonpayment, you can cancel.
05-128 +++$+++ 36271 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's a --
05-128 +++$+++ 36272 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Verrilli, before --
05-128 +++$+++ 36273 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But I was -- can -- can I -- I still don't quite understand the answer to the bond premium question.
05-128 +++$+++ 36274 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that -- there would be no priority there because that would be -- that would be a subrogated claim, and the last section of section of -- the last provision of section 507 says if you're subrogated to a --
05-128 +++$+++ 36275 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. No, it wouldn't be subrogated. The bond premium -- the bonding company says we're entitled to priority.
05-128 +++$+++ 36276 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think --
05-128 +++$+++ 36277 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And it files the claim directly with the bankruptcy.
05-128 +++$+++ 36278 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I don't think that would be a claim for contribution to the plan, Your Honor, in the same sense that we're talking about here. The -- if I -- if I could --
05-128 +++$+++ 36279 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You couldn't have the plan without the bond, just as here you wouldn't have a plan without the insurance policy. It's just a different way of paying for the same thing.
05-128 +++$+++ 36280 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm -- I think there's an order of -- there's another order of degree of removal, and it would make it a harder question, I suppose, as to whether there would be a -- whether there would be a claim for priority in that context. But I think, if I could, Mr. Chief Justice, I'd like to return to the question of narrow construction where we started the argument.
05-128 +++$+++ 36281 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I detract you just for a moment? On -- on a question of the statutory history, correct me if I'm wrong, but originally, 1934, the kind of claim that you have would be a seventh priority claim. And then in '38, Congress said no priority at all covering workers' compensation. And then when Congress restored a priority, it ratcheted it up to four or five, depending upon which version of the statute we use. Is there any explanation why, when Congress originally assigned first a very low priority and then no priority, suddenly it gets up to be on a par with the fringe benefits?
05-128 +++$+++ 36282 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I think there are two significant points there, Justice Ginsburg, in terms of the history. First, in 1934 what Congress said was that workers' compensation could be a provable claim. It then said it's -- it gets the -- the seventh priority, but the seventh priority was not a priority specific to workers' compensation. It was a priority that's -- it was a provision that said you get a priority if State law provides the priority. In 1938, what Congress did was wipe out that provision for all State law granted priorities, not for workers' comp in specific. So it doesn't seem to me it was a specific judgment about workers' comp and its place in the priority system. And, of course, you didn't have the well-developed system of employee benefit plans in the 1930's that you have now. And what Congress did, when it enacted this provision in 1978, following closely after ERISA, was to use language which is identical to ERISA in providing a priority for employee benefit plans which, as ERISA on its face, I think, makes clear, would encompass workers' compensation plans.
05-128 +++$+++ 36283 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Verrilli, your -- your friend's argument about the interrelation between (a)(3) and (a)(4) seems like a compelling one. What is your answer to that?
05-128 +++$+++ 36284 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the complete explanation for the relationship between (a)(3) and (a)(4) was that Congress was trying to expand the scope of the priority here without doing damage either to the wage priority above it, which -- and -- and there would have been damage to the wage priority above it if wages were simply redefined to include the broader set of employee benefits -- or to the priorities below. Congress just took the aggregate amount. It seems to me just an elegant solution that protects the wage priority above, creates a new priority, and doesn't disadvantage any of the -- any of the priority-holders below. And I really do think that's the complete explanation for the relationship between the two. You really can't infer anything more than that. But if I could just address the so-called rule of narrow construction. Certainly there is a sentence or two in Nathanson and Embassy Restaurant, but those were such clear cases of statutory construction that -- that the rule of narrow construction, I submit, played no role there. In many, many more cases in which this Court has interpreted the priority provisions of the act and the code, the Court has not mentioned this idea that there's a rule of narrow construction or that the principle of equality of distribution to creditors should trump everything else. We've cited four in our brief: Lewis, Shropshire, Ricketts, and SBA v. McClellan, which by the way, expressly cut back on Nathanson. But there are many more cases. There's a whole line of tax priority cases culminating in the Reorganized CF&I Fabricators decision in which the courts adjudicated the question of -- of the scope of the tax priority. Most of the time, they find priority. Occasionally they find no priority. But in none of those cases is this so-called rule of construction ever mentioned or the supposed primacy of the rule of equality of -- of the principle of equality of distribution ever mentioned.
05-128 +++$+++ 36285 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, much of your case hinges on the assumption that Congress incorporated the ERISA definition into the bankruptcy code. What -- what is your strongest evidence for that?
05-128 +++$+++ 36286 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the fact that the phrase is identical to the phrase that appears in ERISA, employee benefit plan, is significant. ERISA was one of the most substantial legislative accomplishments of that decade of the 1970s. And so I think the mere fact that the exact same language appears in both places, importantly, however, with -- without the limiting qualification in section 507(a)(4) that exists in ERISA itself with respect to workers' compensation plans. I also think that if the Court does look at the legislative history, what -- what one learns from the legislative history is that when the bill was originally introduced to -- to create this priority, it created a priority for -- proposed to create a priority for pensions, insurance, and similar employee benefit plans. The union representatives came in to Congress and said that's too narrow. We need something significantly broader to ensure that the full range of employee benefits is protected and granted this priority. What the union representatives all urged Congress to do was to adopt the ERISA definition wholesale. Now, we don't have anything in the -- in the House or Senate report saying that's what we did. In other words, we intended to adopted ERISA wholesale, but we do know that is what, in fact, they did. They used exactly the language from ERISA and they moved it into the priority in section 507.
05-128 +++$+++ 36287 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ To follow up on the earlier question of the Chief Justice, by whom do you understand the services have to be rendered within the meaning of the act?
05-128 +++$+++ 36288 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that the -- I think that the statute could be read --
05-128 +++$+++ 36289 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does it refer to the -- the bankrupt's employees or your employees?
05-128 +++$+++ 36290 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could be the -- it could be either, it seems to me, Justice Stevens.
05-128 +++$+++ 36291 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You think it could be either.
05-128 +++$+++ 36292 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I -- but I don't think it matters in this case because you get to the same answer either way. If it's the services rendered of the employees, the -- the claim is for contributions to -- for the cost of providing insurance to those employees during the 180 days. If it's the services rendered at Zurich it's the provision of services during the 180 days --
05-128 +++$+++ 36293 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's not just to those. It's to a lot of other people. I mean, that's --
05-128 +++$+++ 36294 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But it -- but it arises from. The -- had -- I think it arises from in this sense, Justice Scalia. Had Howard shut down on a certain day and didn't have employees anymore, it wouldn't have any continuing obligation to or need to pay workers' compensation premiums because there would be no workers to cover. And so it arises from --
05-128 +++$+++ 36295 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, except the workers who had already been injured in the past --
05-128 +++$+++ 36296 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, but you don't need --
05-128 +++$+++ 36297 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and -- and whom you continue to pay. Right?
05-128 +++$+++ 36298 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- yes. But not -- but -- but we -- let's see. I think that maybe this will clear up the confusion. We continue to pay for them even after the policy is over --
05-128 +++$+++ 36299 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
05-128 +++$+++ 36300 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and -- but -- and so --
05-128 +++$+++ 36301 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I assume that each of your premiums takes into account the fact that you're not only going to be paying for people, you know, who were injured between the last premium and now, but that you're also going to be paying for people who were injured a long time ago.
05-128 +++$+++ 36302 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, depending on the kind of policy, that may be true to some extent. Sometimes policies are loss-sensitive policies in which the amounts owed are calculated very carefully with respect to the amounts actually of loss incurred during the period. That is, in fact, the case here. If you have an understanding of insurance, you can infer that from the charts that are included in the joint appendix, although I acknowledge it's very difficult to do so. So I do think -- I do think on any common sense understanding of the -- of the phrase, arising from, which is a capacious phrase, it really does arise from. But in terms of -- I think, Justice Stevens, with respect to your question, to get to the same answer, in terms of calculating the amount of the claim, whichever one you pick here, there's actually a division of authority in the lower courts. There's a Fourth Circuit opinion by Judge Luttig, saying it's services rendered by the insurance company. Other courts say services rendered by the employees. Since it doesn't make a difference in this case, I would respectfully suggest probably it ought not to be decided in this case because you get to the same place either way. I do -- I do think that it's important also -- I'm sorry. Excuse me. If I may just go back to the narrow construction rule. The -- the point of this idea of primacy of equality of distribution. Equality of distribution is an important policy under the bankruptcy code, but it's only one important policy under the bankruptcy code. Rehabilitation of the debtor is an important policy under the code. The maximizing the value of the estate is an important policy under the code, and specific code provisions advance other specific policies as well. So in any given case, as here, all of those co-policies aren't going to align and point in the same direction. Sometimes they're going to be at cross purposes. And what -- what the Court said in Union Bank, in I think a closely analogous context interpreting the ordinary course exemption from -- from the preference rule, was that we don't put a thumb on the scale either way here. We don't assume that one of these policies is more important than the other. What we assume is that Congress struck the balance between the potentially competing policies, that the balance is reflected in the text of the statute that Congress enacted, and that we should interpret the text as it's written without -- without a presumption in either direction. I really think Union Bank is highly instructive on that, and it's just -- it's just right and plain common sense. And that's why I think in the vast majority of cases, there is no rule of narrow construction.
05-128 +++$+++ 36303 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is -- what is unemployment compensation? Those two I think of as those are law-mandated coverage that every employer must have: workers' comp and unemployment. So what's unemployment, is that a plan too?
05-128 +++$+++ 36304 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, because the employer doesn't have the obligation to provide unemployment compensation. That's a State-run system in which the State has the obligation to provide the benefit, and the State does in fact provide the benefit. It's usually funded through a tax. The key difference is this is an employer obligation to provide these benefits, and I think that's why this is an employee benefit plan. The employer is obligated to provide it to employees by virtue of the fact that the employees are working for the employer. Not true about unemployment compensation. In conclusion, if I could just focus on the -- the point that it really is the case that enforcing this priority, as it is written, will advance the purposes for which Congress included it in the code. It will protect the interests of workers, millions of whom have no employee benefit plan other than workers' compensation, because it will increase the prospects that that money is there to pay workers' compensation claims. It will also advance the code's purpose of better rehabilitation because it will give insurance companies a reason not to pull the hair trigger, to hang in there with these companies, and to allow them to have a chance to rehabilitate rather than forcing them into liquidation by canceling coverage which the law allows. Thank you.
05-128 +++$+++ 36305 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Verrilli. Mr. Strain, you have 4 minutes remaining.
05-128 +++$+++ 36307 +++$+++ FALSE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. This Court 10 years ago in United States v. Reorganized CF&I provided that -- I suggest, that the engrafting of the ERISA definition into this bankruptcy statute was improper. Almost word for word what we're asking the Court to find about this engrafting of the ERISA definition into the bankruptcy statute is dealt with in plain language in this Supreme Court decision. It is simply improper to do that, and yet, that is the answer given by Zurich to the many probing hypotheticals about parking lots and bottled water and the rest.
05-128 +++$+++ 36308 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, they're doing that to get a standard.
05-128 +++$+++ 36309 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, Your Honor?
05-128 +++$+++ 36310 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I'd like to know what your -- they're trying to use that as a basis for separating the bottled water from the workmen's comp from the health benefit. And they're saying here's an example of where Congress put the workers' comp on the same side as the health benefit. Now, that's their approach. What's your approach to the standard? What rule or system would you use from deciding which insured-for or paid-for benefits count as the plan and which ones don't?
05-128 +++$+++ 36311 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What we look to, Justice Breyer, first of all, is whether it is a true wage substitute rather than a policy to take care of a non-negotiable statutory requirement that's --
05-128 +++$+++ 36312 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So if, in fact -- if, in fact, the State legislature mandates certain health benefits, then the plan that provides those benefits would no longer qualify.
05-128 +++$+++ 36313 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be one significant factor to consider, Your Honor. There are certainly others, but that would be one significant factor to consider. That is true. And I -- I suggest to the Court that when we look to the legislative history, as the questions were asked about the legislative history, it is devoid of any reference to the commission that recommended the law, the House report or the Senate report, or even one stray Congressperson suggesting that workers' comp insurance policies should get a priority. Not one. The industry didn't even put up a representative to make that suggestion at a hearing. It is devoid of any support for putting this nose under the tent in the way they suggest, and it truly is a broadening. It is not subrogation. The bondholder would not have a subrogated claim. F&M Bank would not have a subrogated claim. They would have a claim, a direct claim, just as Zurich does here. And I think that the issue we come back to -- and I'm glad my brothers ended with that as well because that's where we began. The issue is what is the Court's proper approach to this attempt to enlarge the priority under subsection (a)(4). It is not correct that this Court departs from the idea that priorities are a deviation from the bedrock principle of equality of -- equality of distribution. That remains good law, cited by this Court a number of times. The cases they purportedly cite to the contrary were plain language cases, were Embassy Restaurant and Joint Industries Board. This Court didn't even feel necessary to cite that principle because of the -- because of the plain language. Where is the plain language establishing clearly, as this Court requires, that this is a plan? Where is the plain language establishing clearly that this is an employee benefit? The insurance policy. That's what we're talking about. Not the workers' compensation statute. The insurance policy may benefit the employer. The statute may benefit the employee. But we are talking about contributions to an employee benefit plan. Zurich's insurance policy is neither. Unless there are further questions, Mr. Chief Justice, that concludes my argument.
05-128 +++$+++ 36314 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Strain.
05-128 +++$+++ 36315 +++$+++ TRUE +++$+++ MR. STRAIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
05-128 +++$+++ 36316 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The case is submitted.
05-130 +++$+++ 36320 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in eBay v. MercExchange. Mr. Phillips.
05-130 +++$+++ 36322 +++$+++ FALSE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The fundamental question that's posed in this particular case is whether or not the court of appeals by adopting a rule that declares categorically that three out of the four traditional factors for deciding whether or not to grant permanent injunctive relief will be irrebuttably presumed to be satisfied whenever a jury has found that a patent is valid and has been infringed. The rule in the Federal Circuit for at least 20 years has been that if you have validity and infringement decided by the jury, that then there is irrebuttable finding of -- of irreparable injury, of inadequate remedy at law, and that the balance of harms decidedly favors the plaintiff, and that the only issue that remains available to the defendant in that circumstance is a heightened scrutiny on the standard of whether or not the -- the public interest commands that an injunction be denied in a particular case. And even in that context, the Federal Circuit's rule is extraordinarily stringent because not just any public interest can -- will satisfy, but instead, it has to be a public interest that endangers the public health.
05-130 +++$+++ 36323 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that all in Judge Bryson's decision? I certainly didn't see it there.
05-130 +++$+++ 36324 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that is precise -- I think it's the only way to read Judge Bryson's decision, Justice Ginsburg, where the court says, at page 26a, that a permanent injunction will issue once infringement and validity have been adjudged, and then say, to be sure, it will not be so to protect the public interest. And we all know the traditional rule with respect to the grant of injunctive relief is that it's a four-factor test.
05-130 +++$+++ 36325 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I didn't see anything about irrebuttable presumption.
05-130 +++$+++ 36326 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the point is that if an injunction follows with a finding of -- of validity and infringement, then that means that there has to be -- there has to be irreparable injury, inadequate remedy at law, and that the balance of hardships has to tilt in -- in favor of the plaintiff. And then the only issue that remains is whether or not the public interest justifies not granting an injunction under the circumstances of this case. It seems to me there's no other way to read that. And if you read it in the context of the -- of the previous 20 years of decisions from the Federal Circuit, it is absolutely clear. We don't have the opportunity to come back as a defendant in an infringement action and say, Your Honor, in the specific facts of this case, this is someone for whom money damages is a completely adequate remedy. And -- and it seems to me quite clear that section 283 is designed to be exactly the opposite of the way the Federal Circuit has interpreted this -- this scheme. Section 283 says explicitly -- and this is at page 1 of the blue brief -- district courts, quote, may -- not shall -- grant injunctions in accordance with principles of equity. And principles of equity, as Justice Story said almost 200 years ago, systematically reject the idea that you will act on a categorical basis in deciding whether or not to grant or withdraw the injunctive relief in -- in particular circumstances. And to the contrary, you have to look at each specific issue. And in that regard --
05-130 +++$+++ 36327 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is -- is that so with -- with respect to someone else's use of -- of your property? It seems to me very rare where -- where someone takes your property, that the court wouldn't -- wouldn't give you the property back and -- and simply say, you know -- I can think of a few extraordinary examples. If somebody makes a statue out of stolen gold, you know, the -- the old classic, I guess you'd get the money back. But ordinarily we're talking about a property right here, and -- and the property right is -- is explicitly the right to exclude others from -- from use of that. That's what the patent right is. And all he's asking for is give me my property back.
05-130 +++$+++ 36328 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. And -- and Congress already made the -- the balance, Justice Scalia, with respect to that because Congress obviously identified the property right as the right to exclude. And then Congress did not confer upon the district courts no discretion to act in -- in a situation where the property right has been violated. Instead, Congress expressly adopts in 283 a very broad grant of equitable discretion. To be sure, in the ordinary case, you -- you very well may have irreparable injury proved, but the question is, do you -- do you eliminate any inquiry and any specific facts of the case and instead not only presume it, which I think is a mistake, although the district court did that and found that in this case the presumption was rebutted, but to -- but to say irrebuttably it's presumed that you have irreparable injury, irrebuttably presumed that you don't have an adequate remedy at law, and irrebuttably presume that the balance of equities tilt in favor of the plaintiff. And that, it seems to me, cannot be squared with the language of the statute. And, indeed, on that score, the United States sort of magically ends up on our side of the -- of the table because the United States says the same thing. There is no way --
05-130 +++$+++ 36329 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ On Justice Scalia's question, I was trying to think of some, and I was trying to think the analogy might -- you might find some analogy in the public utilities field, the -- or a ferris wheel or something. What you want is a person who uses his property not at all himself, but licensed the public generally. And now would a -- would a court issue an injunction there? And as I think about that, I don't realize I don't know the answer.
05-130 +++$+++ 36330 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know of any. I mean, I certainly wouldn't categorically declare that you have to I guess is the way I would respond to that.
05-130 +++$+++ 36331 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, that's what -- I mean, that -- that's what you're trying to analogize this case to, I guess, is a person who licenses others to use his property and never uses it himself.
05-130 +++$+++ 36332 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's precisely what this case involves.
05-130 +++$+++ 36333 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And there, I don't know how courts do normally act in other areas of property law.
05-130 +++$+++ 36334 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't know that there are a whole lot of them like that, but the one thing that -- I mean, there are two things to think about the property concept in the statute. First of all, Congress does not declare that the property interest here is a real property interest, which traditionally has been protected differently. It's a personal property interest, which is traditionally given -- accorded less protection under this kind of a scheme. And so there -- and -- and again, Congress in any event struck the balance. It didn't say, as it could have, that there is presumed -- there's a presumption that we have an injunction. It didn't say, as it could have, that we shall have a -- shall have either a presumption or an injunction in any particular case. And so under the statutory scheme here, it seems to --
05-130 +++$+++ 36335 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but -- but the exercise of discretion is channeled over time, as -- as judges apply it in -- in similar cases. You're not suggesting that in a typical run-of-the-mine patent case, no special considerations, it would be wrong to say that in those cases you typically would grant an injunction?
05-130 +++$+++ 36336 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think in those cases, the irreparable injury and the inadequacy of the remedy at law will be -- will be easy to demonstrate, as they have been for hundreds of years. The -- the fundamental difference -- this is important to have this in mind. The Federal Circuit adopted this rule of law some 20 years ago. That's before the high-tech boom, before the explosion in the number of patents. And so the opportunity to deal with these issues on an individualized basis that might give rise to some kinds of rules that you could, in fact, apply to the generality of cases based on an experience has never been there. We have been dealing with an irrebuttable presumption for 20 years in a way that has -- has completely stultified the ability to develop any of those kinds of rules. And what we're asking this Court to do at this point is to say, no, enough is enough. We need to go back to a time where the -- go back to the language of the statute, confer the discretion on the district courts. And it's important not just for a case like this one, but it -- but it distorts tremendously the settlement value and the process and the relationship between the patent holder and all of the potential licensees because we're in a -- in a world -- and I don't think the Court can ignore this because it's in the amicus briefs. We're in a world where if a patent holder files a lawsuit in Marshall, Texas, no patent has ever been declared invalid in that jurisdiction, and no patent has ever been found not to infringe. And then you take that finding automatically and you turn it into an injunction. Any person who has been threatened under those circumstances and told that we're going to face a lawsuit in Marshall, Texas is going to have a very different negotiating posture than in a situation where --
05-130 +++$+++ 36337 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You know, I mean, that's -- that's a problem with Marshall, Texas, not with the patent law. I mean, maybe -- maybe we should remedy that problem.
05-130 +++$+++ 36338 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I hope you do.
05-130 +++$+++ 36339 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I don't think we should write -- write our patent law because we have some renegade jurisdictions. Why -- why isn't the -- the free market normally adequate to solve any problems you're talking about? Everybody is in this for the money. Nobody is going to hold off giving the license beyond the point where -- where it makes financial sense.
05-130 +++$+++ 36340 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-130 +++$+++ 36341 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why can't -- why can't we let the market take care of the problem?
05-130 +++$+++ 36342 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think the -- the market will take care of the problem. The question is under what standards are you going to apply. Are you going to say that there is no effective check on the jury system, that it goes automatically from a jury's finding to injunctive relief, or are you going to implement it against the backdrop of what Congress specifically provides, which is that the district courts should exercise equitable discretion in deciding how best to proceed.
05-130 +++$+++ 36343 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ One of the problems with the district court exercising equitable discretion without a close review by the Federal Circuit is just the thing that the Federal Circuit was created to handle, that is, you get a tremendous disparity among district judges. I don't know that it's only in Marshall, Texas that you have a tilt in one direction or in the other. So the Federal Circuit is put there not to say that the district judges have no discretion, but to try to rein it in somewhat so that you won't have wide disparities, which you very well might have if you just say discretion to the district judges and very light review on appeal.
05-130 +++$+++ 36344 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Justice Ginsburg, the -- the problem with that is that that's not the scheme that Congress created with respect to the remedial aspects of -- of the patent laws. I mean, it is surely the case that Congress meant, as -- as substantive patent law is generally enforced and implemented, that the Federal Circuit would play a significant role in ensuring some kind of uniformity, but Congress didn't then go the extra step and say, and when it comes time to decide whether or not injunctive relief ought to be granted, that it will -- that we will presume it or that we will deal with it in a categorical way. Congress granted that discretion to the district courts and with good reason because district --
05-130 +++$+++ 36345 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think maybe you exaggerate the -- the extent of equitable discretion. I mean, it wasn't as though it's just left up to the judge, seems like a good idea or not a good idea. There are a lot of rules for when -- when you would give injunctive relief and not. And -- and I -- you know, I'm not sure you're going to get into the kind of wide-ranging allowance that -- that you seem to be arguing for.
05-130 +++$+++ 36346 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't know that I need a wide-ranging allowance with respect to this. What I need is elimination of the irrebuttable presumption that doesn't allow any consideration of whether money damages are adequate in a particular case. And -- and here, it's very important to focus. The -- the district judge didn't just say, I woke up this morning and I felt really good about the defendant, and therefore, I'm not granting an injunction. The district court here said, I'm making specific findings of fact with regard to the adequacy of money damages to deal --
05-130 +++$+++ 36347 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but he said other things too, and one thing he said is, I don't like business method patents very much, and so I'm not going to give an injunction here.
05-130 +++$+++ 36348 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's --
05-130 +++$+++ 36349 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you think that was proper or improper?
05-130 +++$+++ 36350 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's -- that's not precisely what he said, Mr. Chief Justice. What he said was that business method patents stand on a somewhat different footing because they're subject --
05-130 +++$+++ 36351 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He said there's a growing concern over the issuance of business method patents.
05-130 +++$+++ 36352 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-130 +++$+++ 36353 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that an appropriate consideration to take into account in determining whether to grant an injunction or not?
05-130 +++$+++ 36354 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think probably, at the end of the day, it wouldn't be, but the bottom line is that he did that in the context of analyzing the public interest consideration and he said that didn't --
05-130 +++$+++ 36355 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, then he went on and he said --
05-130 +++$+++ 36356 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- tilt in favor.
05-130 +++$+++ 36357 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- another -- another consideration is that this patentee does not practice its patents. But, I mean, isn't that just saying he's, you know, the -- the guy in the garage and he's an inventor and the way he's going to market his discoveries is by getting some firm that basically speculates on patents.
05-130 +++$+++ 36358 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure. And --
05-130 +++$+++ 36359 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if he's denying that inventor, you know, the -- what he'd give to Bell Labs -- or whatever Bell Labs is these days -- that does practice the inventions --
05-130 +++$+++ 36360 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I should know that actually, but -- (Laughter.)
05-130 +++$+++ 36361 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Mr. Chief Justice, I -- I think you can -- it's -- it's not fair to pick apart each one of his findings and say does that finding good enough or is that finding enough. The truth is the district court made a series of four findings that overlap, and one of which was, obviously, he doesn't -- he doesn't practice this patent. He also doesn't effectively license. He's willing to license his patent to eBay. He's willing to license this patent to anybody under these circumstances.
05-130 +++$+++ 36362 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but --
05-130 +++$+++ 36363 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And candidly, most of the licensing arrangements don't even exist, and they're -- I'm sorry, Justice Kennedy.
05-130 +++$+++ 36364 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I'm -- I interrupted you. But the -- the business process point you give away fairly quickly. I -- I thought that was rather substantial. The whole point is, is that a business process patent is -- is difficult to define and could be very -- it can be very restrictive.
05-130 +++$+++ 36365 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I think in -- in a proper case -- and I don't think you do it under the -- under the public interest analysis. I think you'd probably end up doing it under the balance of the hardships. But in any event -- and -- and what you -- you know, obviously, this case is -- is more complicated because --
05-130 +++$+++ 36366 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ My concern is if you take that away, I don't know if you've got a lot left for the -- saying no injunction in this case.
05-130 +++$+++ 36367 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I mean, there's plenty left because he doesn't practice this invention. He has no intention of practicing this invention beyond the receipt of money. Money damages are a completely adequate remedy under these particular circumstances, given -- given especially the fact that if -- if the infringement continues -- and remember, this is not a situation where he proposes to continue to infringe. We propose to work around it, but if the infringement continues, we're then subject to enhanced damages and all of the deterrent power that that has, plus the possibility, obviously, down the road that the district court could, on a rule 54 motion, now come back and say, well, no, now I've decided that injunctive relief is warranted under these circumstances.
05-130 +++$+++ 36368 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, isn't it a concern that Congress didn't provide for compulsory licensing which this seems to have a very strong resemblance to? It says eBay wants to do this, so they're going to have to pay for it, but the patentee can't stop them. It just has -- in effect, has to license them to do it.
05-130 +++$+++ 36369 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But -- but we're not asking for a compulsory license because it is not our intention, going forward, to infringe this patent. We've made it very clear to the district court and the district court recognizes that we not only intend to but have, in fact, implemented a design-around or a work-around to this particular patent. And that's what we expect will happen. So we're not asking for the right to continue to infringe and a willingness to pay as we go. Our concern -- and this does go to the business method patent because it does go to the -- to the uncertainty. The problem we have here is we don't know where the line is going to be drawn. That's why the district court said specifically, you know, there's going to be unending litigation on this because it's very difficult to define the metes and bounds of this particular patent, and we're going to have to fight over that, so that the traditional reason for injunctive relief, which is to bring peace, isn't available in this case. We're not going to have peace under these circumstances. And when you have that situation and you have the kind of uncertainty, not because of business method patents generally -- that's -- that's where I was I think probably giving up too much immediately. I don't think the fact of a business method patent is per se a problem, but I think analyzing the specific business method patent and its uncertainty is a legitimate consideration for the district court to take into account in deciding whether or not, in a particular circumstance, we are better off saying, pay the plaintiff the money for the past injury, let's see how the work-around develops, and take it into account, but without the sort of --
05-130 +++$+++ 36370 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well -- well, tell me how -- how this works. It seems to me that an injunctive hearing is -- might be the cheapest, most effective way to -- to sort out whether there's going to be a violation. You call the parties in and they indicate what -- what they propose to do, and the judge says, well, this is within it or it's without it. It's -- it's much cheaper than a -- a new lawsuit.
05-130 +++$+++ 36371 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, of course, the consequences of the -- of the process are significantly different because, obviously, the remedies for -- for contempt are significantly more draconian than -- than just a finding of a -- of a violation. But more -- more important than that, Justice Kennedy --
05-130 +++$+++ 36372 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but this gives you the advantage of coming in in advance saying, I want -- I -- I want a ruling in advance that I'm not going to violate the injunction. You've got a cheap lawsuit.
05-130 +++$+++ 36373 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, and the reality is the district court already looked at this and said that it -- it is the district court's judgment that they're going to require full infringement trials. I mean, that was the finding it made with respect to the balance of hardships. And -- and neither the court of appeals nor the -- nor the Respondent in this case has -- has challenged that particular finding. So the reality is the district court has made the determination that that's not -- that process is either not available or not practical in the context of this particular case, which of course, goes back to why it's important to make sure that you look at each of these cases on their individual facts rather than across the board on a -- on these -- on an irrebuttable presumption basis. The -- the additional point that I think it's important I at least spend a minute on, because the Court asked for us to deal with Continental Paper Bag, is that it does seem to me quite clear that, at least at this stage, the parties are pretty much in sync, that -- that the Court need not revisit Continental Paper Bag. The holding in that case is actually almost a sort of quintessential situation where you have two participants in the market, one of whom would like to take advantage of a patent that will improve that participant's ability to produce a product. The patent holder is not ready yet to develop that product using that particular method and, therefore, sues to stop his competitor from entering into that market. I mean, that's the classic kind of situation where you have a -- you know, where you -- where you've got the potential infringer is looking at what's going on and making a decision and copying it and then trying to implement it. And the Court said, under those circumstances, you get an injunction. But here, of course, we're dealing with a vastly different situation, as we -- as we point out that -- in our brief, where the -- at page 9 where the district court specifically found that not any of eBay's success is attributable to anything in the patents of the plaintiff in this case and that nothing in the patents that were put forward by the plaintiff in this case provide any basis on which anyone could build a business model. So this is, to my mind, the antithesis of the situation in Continental Paper Bag. But in any event, the holding there is clearly not implicated here. It's been codified by Congress. There's no basis for the Court to reconsider it. To the extent that there is -- is dicta in there that talks about the right to exclude, Justice Scalia, I think, in general, the right to exclude is one that you do, in fact, enforce with injunctive relief in many cases, but the question here is whether or not the Federal Circuit should have adopted a rule that says you -- you enforce it in every case irrebuttably as to three of the four factors, and as to the fourth factor, you don't go any further than requiring the plaintiff to show that there's a -- an imminent public health crisis. Under those circumstances, it seems to me the Court should reverse the court of appeals. And, indeed, if there were ever a case in which the Court ought to uphold the district court on a -- under the abuse of discretion standard, it is this case.
05-130 +++$+++ 36374 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why should we -- if I can get back to one of the factors. Why should we draw a distinction between the -- the sole inventor who needs a patent speculation firm to market his discovery and -- and somebody else? Why -- why should he lose the leverage of the normal injunction and have substituted for that a duel of experts over what a reasonable royalty should be?
05-130 +++$+++ 36375 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the -- because Congress didn't dictate that he gets that leverage in every situation. And -- and it's quite possible that the -- there are going to be a lot of situations. And the Solicitor General's brief identifies four of them in which an inventor, who doesn't plan to practice the invention, engages in -- in various kinds of licensing schemes that create all kinds of interrelationships among the way the patent is going to be developed, and I think all of those are perfectly legitimate and could easily justify injunctive relief in precisely the kind of case that you pose, Mr. Chief Justice. But that's not this case.
05-130 +++$+++ 36376 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can I -- maybe I don't understand what it means to practice the invention. If -- if I -- does that -- if -- if I invent something, you know, a new -- better way to make a car engine work and I want to sell that to somebody, that's -- you'd say that's not practicing the invention because I don't build cars?
05-130 +++$+++ 36377 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. But again, you've licensed it and there are certain rights that, obviously, arise out of the licensing. None of these factors is alone, I don't believe, sufficient to say you don't get injunctive relief. But I think what the district court said, and I think that this is why the Court ought to affirm the district court's under -- under an abuse of discretion standard, which never been applied to this case -- what the Court should say is, look, and where you have no practicing of the invention by the inventor, where you have a complete willingness to license not only to the world, but also to eBay specifically, and where you've never sought preliminary injunctive relief, under all of those -- and where -- and where there's serious question about the lines to be drawn, there's no benefit to be had by -- in the way of trying to eliminate the amount of litigation on an ongoing basis, under all of those circumstances, all of which the district court identified, then it's not appropriate to grant injunctive relief. We'll allow enhanced damages in the interim and even the potential down the road, obviously, of -- of an injunction to serve as enough of a deterrent to protect the right to exclude that the plaintiff has under the statute.
05-130 +++$+++ 36378 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why -- why does the fact that -- that you're not practicing the invention make a difference? I mean, why -- why should I be in better shape, as far as getting an injunction is concerned, if I produce an automobile engine and -- and make some undeterminate profit --
05-130 +++$+++ 36379 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-130 +++$+++ 36380 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- from the use of this particular invention in the engine than I would be if I licensed it with a royalty based upon the number of sales of engines? I mean, they're both risking, you know, the same future use of the -- of the device. Why -- why does one situation justify an injunction more than the other?
05-130 +++$+++ 36381 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I think -- I think I ought to modify it slightly because it's not just simply that you don't practice the invention. It's that you're not in the market itself because that's -- that's the Continental Paper Bag case. You know, in Continental Paper Bag, they don't want to -- they don't want to practice the invention either because they want to hold it back in order to be able effectively to use it. If they had wanted to license it, that would have made sense too. But this is not a competitor in the market. If they were a -- it seems to me you have a much better claim to a need to occupy space. That's what the injunction is trying to say. This is my space. I want to occupy it. But if you choose not to occupy it, it's not to say that you abandon your right to an injunction, but that that ought to be a legitimate, individualized consideration, among other considerations --
05-130 +++$+++ 36382 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ By not occupying it, you mean including not licensing it to somebody else.
05-130 +++$+++ 36383 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if you didn't license it -- and actually we have no relevant licenses here too -- that would be another factor that ought to be -- that ought to count in the mix. Again, it's not -- I'm not looking for a presumption the other way and I'm not looking for categorical rules that say that if you -- if you're a nonperforming entity, that you don't get a license, or even if you're a troll, as that term gets bandied around, that you're never entitled to a -- to an injunction.
05-130 +++$+++ 36384 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, is -- is the troll the scary thing under the bridge, or is it a fishing technique? I -- I want -- (Laughter.)
05-130 +++$+++ 36385 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For my clients, it's been the scary thing under the bridge, but -- (Laughter.)
05-130 +++$+++ 36386 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, is that what the troll is?
05-130 +++$+++ 36387 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I believe that's the -- I think that's what -- what it is, although you -- maybe we should think of it more as Orks, now that we have a new generation, but at this point troll is the word that gets -- that gets used. If there are no further questions, I'd like to reserve the balance of my time, Your Honors.
05-130 +++$+++ 36388 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Phillips. Mr. Minear, we'll hear from you.
05-130 +++$+++ 36390 +++$+++ FALSE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The United States submits that the right to a patent is an important matter, but it must be considered in the context of the remedies as well. And the United States further submits the patentee's right to an injunction should be covered by the familiar four-factor test this Court has applied in cases such as Weinberger v. Romero-Barcelo. This Court's express endorsement of the four-factor test would provide disciplined guidance and a framework for the lower courts to evaluate whether or not a patent should issue in any particular case. The court of appeals in this case did not make express reference to the four-factor test. Nevertheless, it did identify the difficulties with the -- the district court's decisions.
05-130 +++$+++ 36391 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't think Mr. -- you don't think Judge Bryson forgot about the four-factor test, do you?
05-130 +++$+++ 36392 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely not.
05-130 +++$+++ 36393 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Sure. And -- and he was just reflecting the reality that in a typical case, this is what happens. It seems to me all you want us to do is edit his opinion and stick in this formulaic paragraph about there are four factors and here they are.
05-130 +++$+++ 36394 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not exactly, Your Honor. We think that there is some legitimate confusion among the patent bar and in the community about whether or not this test issues nearly automatically or not. Certainly there are many amicus briefs on both sides. And we think it's useful for this Court to make clear that this is an exercise of equitable discretion. Now, Judge Bryson, I think, was aware of the four-factor test. In fact, both parties cited the four-factor test before the district court. He was also aware of the abuse of discretion standard. That's a well-established standard and the parties cited that standard to the Federal Circuit in the course of briefing this case below. But what we think this Court can do is it can provide guidance on how those factors are applied in the patent context in this very important area. We think the court of appeals decision is correct. The judgment is correct. But we think that there's some benefit to this Court explaining why that is so, and I'd like to --
05-130 +++$+++ 36395 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can I ask you about one factor in particular? What if by the time you get to the injunction stage, the -- the patent office has, you know, rejected all of the underlying claims in a preliminary way? It's not final. Can the district court take that into account in deciding not to issue an injunction?
05-130 +++$+++ 36396 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think, Your Honor, you're referring to the reexamination process
05-130 +++$+++ 36397 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
05-130 +++$+++ 36398 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that, in fact, is ongoing in this case. And we think merely that the Patent and Trademark Office's office action is not sufficient. In this case, if I can speak outside the record, there has been what is called a first office action and a second office action, but no final action by the PTO. But even if there was final action by the PTO, that would still be subject to review by an administrative body, the Board of Patent Appeals and Interferences, and there would be further judicial review. The PTO would not withdraw the patent, would not certify that it's invalid until the conclusion of the judicial process. So we think for that reason the district court should not act precipitously. It may have -- the district court would have discretion to take that into account, whether it should stay further proceedings pending the --
05-130 +++$+++ 36399 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's what struck me as odd there. Footnote 27 says that's a basis for staying the injunction. It seems to me if it's a basis for staying the injunction, it's a basis not to issue one in the first place.
05-130 +++$+++ 36400 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it also might be a -- a basis in terms of how to structure the injunction. We simply meant to indicate in footnote 27 the district court has discretion on remand to take these factors into account based on where the case is at that time. We're not taking a position one way or another what the Court should do in this particular case. That is an exercise of discretion. It's subject to review for abuse of discretion. But I would like to talk about the four individual factors in this case because I think it provides helpful guidance in the resolution of the dispute before the Court. As an initial matter, with regard to irreparable injury, patent infringement normally will result in irreparable injury because it denies the patent holder its statutory right to exclude others from practicing the invention. It's the type of right that is susceptible to irreparable injury because --
05-130 +++$+++ 36401 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it denies the right subject to being a damage remedy that's available.
05-130 +++$+++ 36402 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, but the difficulty here is the pragmatic question of whether the district court can determine whether damages are appropriate or not in a particular case.
05-130 +++$+++ 36403 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it always -- is it always going to be irreparable injury if the patentee always gets fairly compensated?
05-130 +++$+++ 36404 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. There -- we certainly recognize there can be cases where there would not be irreparable --
05-130 +++$+++ 36405 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So if there are some cases when he gets fairly compensated and some he does not, why should you say it's always irreparable injury?
05-130 +++$+++ 36406 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, my -- our position is not that it's always, but that it normally is irreparable injury. It usually will be. And there are certainly circumstances we can envision where it would not be irreparable injury.
05-130 +++$+++ 36407 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that usually will be because usually damages are not an adequate remedy?
05-130 +++$+++ 36408 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, that's correct. And the reason why damages are not an adequate remedy is because, as Judge Easterbrook indicated, it's very difficult for the district court, looking forward, to determine what business opportunities are available to the -- to the licensor or the practitioner in the face of the prospect of continuing infringement. And that is why, as Judge Easterbrook noted in the Catheter case, the injunction harnesses the market to determine what the market value of that patent is. It forces negotiation between the parties, as compared to the court acting to try and develop a reasonable royalty based on a battle of experts.
05-130 +++$+++ 36409 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When you say going forward, I thought we were talking about damages for the past violation, not damages for future violations which will continue. Are we talking about that too?
05-130 +++$+++ 36410 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, that's what we're talking about.
05-130 +++$+++ 36411 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ About the court effectively saying, yes, here pay him and -- and go on and skip away and continue violating it.
05-130 +++$+++ 36412 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, when a district court --
05-130 +++$+++ 36413 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In this case, they -- they claim not to want to violate it in the future. They're just talking about, you know, the -- the past actions should -- should be compensable by damages and not -- they should not be subjected to a very threatening injunction.
05-130 +++$+++ 36414 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but in this case the district court has awarded the damages for the past -- past actions already, and the question is how will we deal with the threat of continuing infringement. And the difficulty that the district court faces here is it has to, if it takes no action, as it's done now, it will at some later date have to go back and determine what those damages would be.
05-130 +++$+++ 36415 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which -- when they will be calculable. You're saying it's hard to calculate them into the future. You want the district court to calculate what the future damages will be and say, we think the damages will be this. Here, take your money, and you, God bless you, go continue to violate the patent.
05-130 +++$+++ 36416 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely not.
05-130 +++$+++ 36417 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that what --
05-130 +++$+++ 36418 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We are suggesting what Justice Kennedy suggested; namely, that the injunction proceedings provide an opportunity to determine whether or not the supposed work-around that eBay has will work or will not, and the injunction will be structured to allow it or not, depending on whether or not it's determined to be infringing. That allows the market to go forward with a determination, a certainty that eBay will have that its work-around is either violative or it is not. But our view is that by issuing the injunction, the district court, in the proceedings leading up to the injunction, can determine whether or not this work-around is valid or not.
05-130 +++$+++ 36419 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there a classic case where the injunction should not be issued?
05-130 +++$+++ 36420 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. There -- I think there -- this is a four-factor test, and there are questions of balance of hardship and public interest. And certainly equity should be cautious not to inflict unnecessary hardship on parties. In the case of a nonwillful infringer, for instance, that has made good faith investments that might be set aside by the -- by an injunction, there might be grounds in those circumstances not to issue an injunction. There's also a public interest inquiry as well. If the injunction would threaten national security, public health and safety, undermine core aspects of commerce --
05-130 +++$+++ 36421 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Business processes?
05-130 +++$+++ 36422 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, business processes are not -- the district court clearly erred here in saying that the mere debate about business process patents is a reason for withholding injunctions. That simply is not a sufficient view -- reason in our mind for weighing against the general public interest and the enforceability of patents and the use of injunctions to make sure that those property rights are secure.
05-130 +++$+++ 36423 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose --
05-130 +++$+++ 36424 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm curious about your nonwillful infringer. You're devaluing the value of a particular patent by denying the injunction simply because the people who infringed it weren't willful, and I wonder why that makes sense.
05-130 +++$+++ 36425 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We're not suggesting that automatically that there is withhold with relief because of a nonwillful infringement. We're simply drawing the -- the distinction between a case, such as this, where there is willful infringement -- and, in fact, the party has been found to have both had notice of the patent and also have known that it did not -- did not have a reasonable basis for concluding it was not infringing or the patent was invalid. In those circumstances, the patentee takes on greater risk than the party that simply is not aware of the -- of the patent and in a sense stepped over a property line without realizing that, in fact, it was there. This is, again, a four-factor test, and we believe all factors need to be considered in order to provide the --
05-130 +++$+++ 36426 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is it your bottom line then, send it back with your four-factor test, because there seems to be some uncertainty whether that was applied?
05-130 +++$+++ 36427 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't think that's appropriate because, first of all, the -- the court of appeals did identify the factors the district court relied on that weighed on -- it thought weighed on eBay's side of the balance, and it properly rejected each one of those. But furthermore, we think that this Court's enunciation of the tests and the application of the tests, much as it did in the patent case of Pfaff v. Wells Electronics 3 years ago, could provide very useful guidance in terms of how this test applies in a specific, concrete context. But the factors that the court of appeals relied on here and rejected, found insufficient were really quite right. First of all, there should not be an automatic distinction between a party that practices the patent and one that licenses it. They both have --
05-130 +++$+++ 36428 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There isn't an automatic distinction, but a person who licenses a patent and who is licensing a patent that probably won't be developed very much beyond what it is -- it's fairly easy to -- I'll ask Mr. Waxman.
05-130 +++$+++ 36429 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Your Honor. (Laughter.)
05-130 +++$+++ 36430 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Minear. Mr. Waxman.
05-130 +++$+++ 36432 +++$+++ FALSE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: I -- I can anticipate at least one question. Let me just say at the outset -- (Laughter.)
05-130 +++$+++ 36433 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that long, perhaps centuries, before Justice Story ever wrote his commentaries on equity, it has been firmly, unequivocally established that a final judgment, not -- we're not talking about an interlocutory order, but a final judgment of patent infringement yields an injunction in all but the very rare case. And that settled regime is not an exception to traditional equitable principles. It's an application of those principles. Equity, as this Court has reminded us over and over again, including in the Weinberger and the Amoco cases -- equity first takes account of the nature of both the right at stake and the violation. And because the only right that a patent provides under U.S. law is a limited-term right to exclude others from practicing the invention, infringement produces an injury that is both, A, irreparable by its nature and, B, continuing in the nature of a continuing trespass to chattels. And under traditional equity principles, a showing of either of those things, either irreparable injury or a continuing harm, warrants an injunction in the owner's favor unless the offending party can marshal very strong equities otherwise. That is the settled rule. Now, no such showing could be made in this case. The jury found, by clear and convincing evidence, that eBay had willfully infringed the '265 patent, that it knew about it, and it had no good faith belief either that the patent was invalid or that it was not infringing. The jury was told that if it found either of those things, it could not find willfulness, and it found willfulness by clear and convincing evidence.
05-130 +++$+++ 36434 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We also know by now that the patent office has rejected all of the claims of the patent. The staff.
05-130 +++$+++ 36435 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- what we know is that -- that is correct, Mr. Chief Justice, with the following clarification, that the office action, as Mr. Minear has indicated, represents a -- an initial judgment by a staff member in the office. And what -- what is quite -- and it is -- doesn't represent even the PTO's final judgment in the case, but what is really revealing here is that reexamination is a process that was invoked by eBay. And as we point out in our brief, typically if a competitor is concerned or doubts the validity of a patent, it will invoke reexamination, ask the PTO to reexamine it when it first learns about it. eBay not only didn't invoke reexamination, it cited the '265 patent at least 24 times years before. It then came to MercExchange and offered to buy it.
05-130 +++$+++ 36436 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that a factor that a district court could take into account in deciding whether to issue an injunction?
05-130 +++$+++ 36437 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't --
05-130 +++$+++ 36438 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Say the injunction question came up right now, today. Could the district court say, well, the patent office staff has rejected every claim of this patent, and I'm going to take that into account in deciding whether to put eBay out of business?
05-130 +++$+++ 36439 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that -- the case that the U.S. cites in its footnote is an example where reexamination processes are underway when the case is first filed or when it's pending in the district court, and the district judge certainly has the discretion to say, I don't want to get into a -- a fight here about separation of powers and Hayburns case. Let's let the reexam proceed, and then we'll have a trial. In this case, eBay waited not only until it was sued and not only until it was found to have willfully infringed this patent, but in the middle of the appeals process. It then comes running in and a rule that would allow a district judge now to give notice of that in denying an injunction would basically be a -- an open invitation for everybody to go ahead and try and win at trial, go through the whole multi-year process, and if you don't, just put it into reexam. This -- although the reexamination is required to be -- is required to proceed with, quote, special dispatch under the statute, this reexamination of the '265 patent has been almost 3 years in the patent office and we still don't have a final action. So we think, in the circumstances of this case, where the district judge had no reason to consider reexam because eBay hadn't invoked reexam at the time, it would be an abuse of discretion for the court to either refuse an injunction or stay it in light of the fact that it's now proceeding. But that's not an issue for this Court. It wasn't an issue for the court of appeals because it wasn't part of the district judge's analysis of the requisite equitable factors. And what -- if I can just get back to the facts of this particular case and then talk about the law. The finding of eBay's willfulness in this case disables eBay from invoking the relative balance of harms. We certainly agree --
05-130 +++$+++ 36440 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why? I mean, I think there are so many factors that could enter into it.
05-130 +++$+++ 36441 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-130 +++$+++ 36442 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What I was going to ask was if you have a -- a patentee that does only license and, moreover, licenses only to people who, by and large, will not take that product and develop it further, then it's fairly easy to calculate damages. Now, couple that with a client or a patentee who also waits for a long time, waits till the invention is embedded in a series of other inventions so that if, in fact, there's an injunction, what will happen is that the patentee will be able to extract far more than this particular invention is worth because the infringer would have to give up the entire invention.
05-130 +++$+++ 36443 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice --
05-130 +++$+++ 36444 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Couple that with a patent that, if you read it on page 2 of the red brief, reminds, at least one person who read it, namely me, that if this could be patented, maybe A&P could patent their process for a supermarket. I -- I mean, you'd worry about that as a judge. And couple that with all the other things that are here. Now, special case? Why not?
05-130 +++$+++ 36445 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I've been asked to couple so many things together, I may forget some of the coupling. Please -- I mean this in seriousness. Please remind me because there is a very good answer in law and on the record to each of your points.
05-130 +++$+++ 36446 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The main point -- what I was trying to do is I was trying to take what I'd call the patent troll case.
05-130 +++$+++ 36447 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. First of all, this is no patent troll. The founder of MercExchange really did invent this innovation. He really did, as the record clearly shows, spend years of effort trying to build the system to suit himself, and he is no promiscuous licensor. He has -- it has entered into licenses, which are all in the joint appendix, that are very specialized in terms. He was asked by eBay in 2000 to consider selling them. He offered to license them. The parties couldn't come to terms, and eBay then stole the technology. It willfully infringed it, knowing about it, having cited this as prior art, having had one patent rejected as fully anticipated by the '265. And the common law and equitable principles have -- are quite clear from Story, Pomeroy, all the way back, that when you -- when you're talking about balancing private harms, which is what equity courts do -- I'm not talking about the public interest, but I mean private harms, when you have an adjudicated, willful infringer -- I mean, the jury found that it had no good faith belief either that it wasn't infringing or that the patent was invalid -- you don't balance private harms. But let's take the case in which you don't have willfulness. It's not this case. Let's take the case of somebody who doesn't try and, quote, practice the patent. That's not this case. Let's take the case of somebody who's a garage inventor who decides the way to exploit the patent is to license it. License -- this -- so far as I'm aware, this is the first case. The district court decision in this case is the first case in the context of a permanent injunction. And I'll explain why preliminary injunctions that seek to preserve the status quo are different. This is the first permanent injunction case I'm aware of that has ever thought that exploiting the patent by licensing it to others to make use of would in -- somehow be costly or disable you from obtaining the relief that section 283 and the -- and tradition provided. Section -- section 284, which is the damages provision, talks about remedies, remedies for infringement that has already occurred. The text of section 283 says -- the other side keeps referring to may, may, may not, shall. That's fine. But the purpose of it is to prevent. The operative word in 283 is to prevent. And unless there is an instance in which the patent has expired, the -- the infringer is out of business and can show that it couldn't possibly infringe anymore, an injunction issues to prevent further violation.
05-130 +++$+++ 36448 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On that very point, my question there really was -- that was the heart of it -- that I don't think there's a moral or even patent-related value attached to whether you practice it yourself or not. It's just that when you license it, it's easier -- and a lot of other things matter too.
05-130 +++$+++ 36449 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-130 +++$+++ 36450 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's easier to calculate the damage. Now, at least in some subset of cases. So if you have a case where, on the one hand, it's easier to calculate the damage remedy, and at the same time you fear that to issue an injunction will produce a harm to the other side way out of proportion to, in fact, the value that's being lost by infringing on the patent, then those are two things you'd put in the balance.
05-130 +++$+++ 36451 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
05-130 +++$+++ 36452 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So the -- other things being equal --
05-130 +++$+++ 36453 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the case of a nonwillful infringer, a court in --
05-130 +++$+++ 36454 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. Willful, willful. It wouldn't matter willful or nonwillful, because if he's willful, the reason that he might be willful is he thinks that the patentee is holding him up.
05-130 +++$+++ 36455 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You know, the -- the -- there are 52 self-proclaimed intellectual property professors that filed a brief written by Professor Lemley in support of eBay in this case. Professor Lemley testified under oath to Congress that, even though there are problems with patent trolls, in the case of a willful infringer, the law -- equity doesn't balance private harms. But even if that were wrong, I acknowledge that in balancing, there may be cases in which you can show a vastly disproportionate harm. Okay? I mean, the other side has amicus briefs that come up with these hypothetical scenarios about, you know, one little aspect of a computer chip that has 30,000 components to it. Note, A, that all of those are hypothetical, and B, I'll explain why it's a problem of extremely limited circumstances. But, of course, equity courts can decide that, just as they can decide whether the -- the, quote, innocent patent holder is guilty of laches, unclean hands, estoppel, all of these other equitable considerations that aren't captured by this formulaic four-factor test but that equity courts, including district courts sitting under -- under 283, consider. But this is not the case of some profligate licensor. This is somebody who has licensed with specific provisions. The other side says, well, there are no operative licenses, suggesting somehow that the AutoTrader license, which is one of our examples, is in fact invalid. That came up in their reply brief. It is not correct. It is absolutely true that eBay will not -- the '265 patent is included by that license. It relates to the field of use of auto sales. It provides specifically that eBay -- that MercExchange cannot receive royalties unless it enforces this patent within the field of use. There is no doubt that -- that MercExchange will not be able to start getting patent royalties from AutoTrader unless and until it obtains this injunction. And for example --
05-130 +++$+++ 36456 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Waxman, you mentioned, in -- in responding to the suggestion that we're dealing with a troll, you described -- what exactly is the invention here?
05-130 +++$+++ 36457 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the invention is a -- it's -- it's not a business method. It doesn't claim methods. It claims a system, an apparatus for an electric market for the sale of goods via a network.
05-130 +++$+++ 36458 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Electric. I mean, it's not like --
05-130 +++$+++ 36459 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Electronic market.
05-130 +++$+++ 36460 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- he invented the, you know, internal combustion engine or anything. It's very vague I think, and this is one of the considerations --
05-130 +++$+++ 36461 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-130 +++$+++ 36462 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the district court mentioned. The exact parameters of when it was going to be infringed and when it wasn't were amorphous. And so isn't that a factor the district court can take into account in deciding whether to issue an injunction because it's going to be hard to issue an injunction to define exactly when it's going to be violated and when it's not?
05-130 +++$+++ 36463 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Mr. Chief Justice, if it turns out that it's too hard and -- and the -- and a specific injunction can't be written, rule 65(d) requires that an injunction not issue. And in fact, as we've cited in pages 17 and 18 and, I think, 19 of our brief, the Federal Circuit has, in fact, overruled injunctions that were insufficiently precise to satisfy rule 65. But the claim of imprecision here is -- look, I'm not a software developer and I have reason to believe that neither is Your Honor, and I -- I can't -- (Laughter.)
05-130 +++$+++ 36464 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- explain specifically what this claims. It's laid out very carefully in --
05-130 +++$+++ 36465 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I may not be a software developer, but as I read the invention, it's displaying pictures of your wares on a computer network and, you know, picking which ones you want and buying them. I -- I might have been able to do that.
05-130 +++$+++ 36466 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well -- (Laughter.)
05-130 +++$+++ 36467 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'll say respectfully that that is not a fair characterization of the innovation here, the actual innovation. But let me just say, for purposes of this case, there is no challenge continuing to the validity of this patent. It was challenged before the district court and on appeal on grounds of an inadequate written description, et cetera, et cetera, and upheld. There was a Markman hearing in which the district court construed the patent, added certain claim limitation terms that eBay wanted and we thought were not fairly in it. But significantly, there was never -- never -- a claim to the judge -- and this is an issue for the judge under section 112, paragraph 2 -- of -- of invalidity for indefiniteness.
05-130 +++$+++ 36468 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but the patent office staff has rejected all the claims. I don't know on what grounds.
05-130 +++$+++ 36469 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The patent office -- none of the claims have been rejected on indefinite grounds. They have been rejected, as I understand it, certainly in this patent, for obviousness under prior art, which is all the same prior art that was presented to an Article III court here and that a jury entered a finding on. There are a host of questions that undoubtedly will be presented in the case, if it ever happens, in which a final -- Patent and Trademark Office, on the validity of a patent, contravenes something that a -- a final judgment of an Article III court. But that's not this case. And we certainly agree with the United States that when -- if the judgment is affirmed, the case will go back and the district court will then have to address a point it hasn't addressed yet, which is is the -- is the -- the permanent injunction proposed by MercExchange adequate or inadequate and how can it be made specific, and this supposed work-around -- does it or doesn't it violate the terms of the injunction. I mean, the district judge actually found bad faith -- this is page, I think, 71 of the petition appendix -- of eBay in its conduct in the district court of proclaiming that for $8,000 -- its experts testified that for $8,000, they could work around or design around this problem and there wouldn't be an infringement. But they didn't do it. And they didn't -- they certainly didn't appear to have done it in the Federal Circuit because their brief in the Federal Circuit never mentions it, and the Federal Circuit opinion surely would have said, they've designed around this problem and, you know, therefore this, that, or the other. Even in this Court, eBay has said in its -- in its opening brief at page 43, here there is a possibility that the infringer can develop a work-around. Well --
05-130 +++$+++ 36470 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Waxman, could you help me with something I just realized I have no conception of here? What kind of -- what do these injunctions say? Do they just say don't infringe patent '265 anymore, or do they give a list of things you cannot do and a list of articles you cannot make and so forth?
05-130 +++$+++ 36471 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You couldn't just say don't infringe anymore because rule 65(d) requires specificity and precision. Ordinarily what happens in these cases is there's -- you know, there's usually been a claimed -- a detailed, claimed construction following a Markman hearing. There have been jury instructions. The jury instructions have to specifically describe to the jury on what basis it's to conclude who is right --
05-130 +++$+++ 36472 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The thought just occurs to me and I -- frankly, with all the briefs we've had, I feel kind of stupid not to have thought it before. But it seems to me a great difference might turn on what exactly the injunction provided. Some injunctions must be -- might be much more burdensome than some others. If they're not all fungible, that's certainly true.
05-130 +++$+++ 36473 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly not. And the terms of an injunction are appealable, and the Federal Circuit has reviewed actual terms of permanent injunctions and reversed a number of them and said this is -- this doesn't satisfy rule 65 or it doesn't meet other requirements. But in the -- in the context of this case, it is so critical that the judgment be affirmed, not vacated, because this is a real inventor. This is somebody who really did try to put it in place. This is somebody who eBay approached and then, when they didn't buy it, appropriated the technology, and the validity and infringement are final. They aren't even challenged in this Court. And any suggestion that uncertainty exists on the facts of this case would dramatically destabilize settled law, licensing practices, and the investment-backed expectations of patent holders, large and small, the sole -- you know, hall of fame inventors that are in the Cooper brief filed in support of us and big, integrated companies like GE and Johnson & Johnson that have also filed on our side.
05-130 +++$+++ 36474 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask this?
05-130 +++$+++ 36475 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ These are patent portfolios --
05-130 +++$+++ 36476 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ One -- one short question. Is the draft of the injunction that you want in the record?
05-130 +++$+++ 36477 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is in the court of appeals record, but not the joint appendix. But it certainly will have to be changed because the court of appeals invalidated the '176 patent, which the jury found had been infringed, and therefore, it's -- it will need to be revisited when the case goes back for the entry of an injunction. Thank you, Your Honor.
05-130 +++$+++ 36478 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Waxman. Mr. Phillips, you have 6 minutes remaining.
05-130 +++$+++ 36480 +++$+++ FALSE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. I realize I'm the only thing standing between you and lunch, so I'll try to be brief at this point. Justice Stevens, with respect to the place in the record, this is in the joint appendix and the court of appeals at A6523 -- 62523. That's the proposed permanent injunction, and I won't purport to read the whole thing, but it starts off with anything directly or indirectly, and it goes on for three pages. It is, I think, fairly characterized as a very broad injunction. The -- I think it's important, after Mr. Waxman's challenge to the conduct of eBay in this case, to -- to recognize that willfulness in the patent context has a meaning different from willfulness in any other context. And it is recognized that we're talking about simply a failure to satisfy a duty to check out and find a lawyer's opinion that a particular infringement has not taken place or that the patent is not valid. And when you do that, you of course incur the risk that you will also waive your attorney-client privilege. So there's a risk to it. And that's the willfulness that we're talking about here. With respect to the notion of stealing this patent, let's go back to what the district court specifically held on page 68 of the appendix. Where the defendants maintain that their success did not arise from the use of anything contained in the plaintiff's patents and the defendants argued that the patents offered no business or engineering guidance which the defendants could copy, and this court agrees with that. That's not the kind of bad faith or willfulness -- it's the reason why the court didn't grant enhanced damages. It's the reason why the court didn't grant attorney's fees in this particular case, and it doesn't provide a reason for simply jettisoning three out of the four factors that ought to be applied in the traditional -- in the traditional test. And, Justice Breyer, you asked the question, what are you going to do with a situation where you have the embedded patent and you have the case like this one where we're going along with our process and we've got our source code and we've done all of the hard work, and they go along and come up with some sort of more vague idea and show up at our doorstep and, one, claim that we've got to stop doing what we're doing, or, worse in other cases, we're going to find situations where it's embedded in a manufacturing process. Mr. Waxman says, well, in that situation equity will step in. Not so under the Federal Circuit's approach because that's a balance of the equities kind of a consideration, and that's irrebuttably presumed to favor the plaintiff under the Federal Circuit's approach. Mr. Chief Justice, I know, as well as you know, that Judge Bryson understands the four-factor test and the abuse of discretion standard. And what he did in this case was to go through each of the findings of the district court with respect to the use of the -- of the licensing arrangements, the failure to commercialize this, not being in the business, and said, does any of these rise to the level of the kind of public interest concern that is the only legitimate consideration this court will use in deciding whether or not the district court can justify not granting an injunction in a particular case, instead of what is clearly the traditional approach of equity, which is to say, look at the -- the primary two issues, you know, the flip side of the same thing, so I'll just treat it the one way. Are money damages adequate in the specific case? That's the fundamental question that equity asks. That's the fundamental question that the district court found to be satisfied in this case. Money damages will get the job done. The right to exclude will be adequately protected by enhanced damages and even potentially injunctive relief in the future. Beyond that, nothing more is required. That's the kind of decision that a district court who has sat in a 5-week trial and has overseen this entire litigation is uniquely suited to make a judgment. That judgment is entitled to respect on a classic abuse of discretion standard. The court of appeals long ago jettisoned that approach, and the time has come for this Court to say no, that's not what this Patent Act requires. The Patent Act says the right to exclude is important, but it's only protected by the principles of equity under section 283. That wasn't given here. We urge you to reverse the court of appeals. If there are no further questions, thank you, Your Honor.
05-130 +++$+++ 36481 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
05-1342 +++$+++ 36485 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in 05-1342, Watters v. Wachovia Bank. Mr. Blanchard.
05-1342 +++$+++ 36487 +++$+++ FALSE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The dual banking system of State and Federal regulation in our nation which we've enjoyed for over 140 years is one of the finest examples of cooperative federalism in our history. For 35 years, the States, not the OCC, have prudently exercised their authority over non-bank State-chartered operating local subsidiaries of national banks. Indeed, respondent Wachovia Mortgage complied with Michigan law for 6 years until in 2003 there was a corporate reshuffling and now it claims it's exempt from the same Michigan laws it complied with. The OCC through its Regulation 7.40006 has disrupted the careful balance and seeks to deprive the States of the regulatory authority that they have historically exercised.
05-1342 +++$+++ 36488 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If the national bank set up its mortgage operations as a division or as a department, then the sole regulator would be OCC, right?
05-1342 +++$+++ 36489 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. But Wachovia Bank and Wachovia Mortgage made a choice. They made a business judgment to create a State-chartered operating subsidiary.
05-1342 +++$+++ 36490 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why did they do that? What's the advantage to them having that subsidiary rather than doing this directly?
05-1342 +++$+++ 36491 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the advantage is that Wachovia Bank insulates itself from liability, because it's a bedrock principle of state corporate law that the parent corporation is not liable for the acts of the subsidiary corporation.
05-1342 +++$+++ 36492 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So mortgage subsidiary could possibly get into some trouble that the bank wants to protect itself from and not have -- they have a certain number of assets that are subject to liability in the subsidiary, but they would -- otherwise they'd expose the whole bank to those liabilities?
05-1342 +++$+++ 36493 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Your Honor. From -- the conception behind operating subsidiaries was to separate a certain part of the business and the attendant risks of that business also to separate.
05-1342 +++$+++ 36494 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I assume that the Federal regulating authorities require a certain ratio of loans to real estate value, things of that sort. And I assume that the States may have different rules with regard to that; right? In other words, the oversight might be different. The States may be more permissive as to certain loans or as to, you know, what the balance sheet of the bank has to look like than the Federal Government is. And if you have a State subsidiary that is overseen by state authorities, you might have a different result.
05-1342 +++$+++ 36495 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Possibly, but --
05-1342 +++$+++ 36496 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if not I don't see any advantage in this great Federal banking system you're talking about, if it's Tweedledum and Tweedledee.
05-1342 +++$+++ 36497 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the States do not -- exclusive visitorial powers over national banks rest with the OCC. But Wachovia Bank and Wachovia Mortgage are separate and distinct.
05-1342 +++$+++ 36498 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're not seeking visit -- "visitorial," is that the word?
05-1342 +++$+++ 36499 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
05-1342 +++$+++ 36500 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're not seeking visitorial rights with respect to the parent bank.
05-1342 +++$+++ 36501 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely not.
05-1342 +++$+++ 36502 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're not arguing that because you need to see more about the mortgage subsidiary you need to see what the parent is up to?
05-1342 +++$+++ 36503 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
05-1342 +++$+++ 36504 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
05-1342 +++$+++ 36505 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, we're not. Michigan and the States want to be able to help their citizens with abusive and predatory lending complaints.
05-1342 +++$+++ 36506 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose that it was a national bank. Forget the subsidiary. And your State says: Well, we want to have a law here that says we want to send our own bank examiners in. And moreover, we don't want them to make any loans in excess of 12 percent interest. Fine. Would that be constitutional? I mean, wouldn't be preempted?
05-1342 +++$+++ 36507 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As to the national bank?
05-1342 +++$+++ 36508 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
05-1342 +++$+++ 36509 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1342 +++$+++ 36510 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, of course, because it conflicts and they don't want it.
05-1342 +++$+++ 36511 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1342 +++$+++ 36512 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. Do they have the authority to say a subsidiary is a national bank?
05-1342 +++$+++ 36513 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
05-1342 +++$+++ 36514 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, they can't? Where is it in the law that says they don't have the authority to say that a subsidiary of a national bank owned by a national bank is a national bank? Is there something specifically that stops them from saying that?
05-1342 +++$+++ 36515 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1342 +++$+++ 36516 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What?
05-1342 +++$+++ 36517 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Gold Foods case, the --
05-1342 +++$+++ 36518 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What is it? What is it -- I mean, what statute or what is it that prevents them from saying it? I don't know the Gold Foods case.
05-1342 +++$+++ 36519 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the point is that the corporate law recognizes the two as separate and distinct corporate entities.
05-1342 +++$+++ 36520 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought your point was that the statute defines national bank, but also defines affiliates, and refers to them as two separate entities.
05-1342 +++$+++ 36521 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-1342 +++$+++ 36522 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I thought your point was that the effect of this regulation is to simply eliminate that distinction?
05-1342 +++$+++ 36523 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You're right.
05-1342 +++$+++ 36524 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Their argument, they haven't argued -- I realize this was a hypothetical, but they haven't argued that the subsidiary should be treated as a national bank. They're arguing that they're entitled to say that the same preemption that applies to the national bank applies to the subsidiaries.
05-1342 +++$+++ 36525 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly. That's what they --
05-1342 +++$+++ 36526 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Presumably, if they said it's treated as a national bank they would lose the benefit of the separate corporate existence when it came to issues of liability. If they said this subsidiary is a national bank, then presumably the separate corporate existence they're seeking to take advantage of would be obliterated.
05-1342 +++$+++ 36527 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but that's the -- they are trying to contend that they are one and the same. But they can't have their cake and eat it, too.
05-1342 +++$+++ 36528 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I guess we can ask the respondents. But is it your understanding that respondents take the position that the State has no control at all over whether or not the shares have been properly issued, whether or not certain accounting requirements applicable to all corporations have been complied with?
05-1342 +++$+++ 36529 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that is my understanding of their position.
05-1342 +++$+++ 36530 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They say that there's no area of State law that is applicable to the subsidiary corporation?
05-1342 +++$+++ 36531 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They are saying that visitorial powers over the State-chartered operating subs is exclusively --
05-1342 +++$+++ 36532 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I could understand that with reference to just the amount of consumer loans, as Justice Scalia was talking about. But just to see if the corporation has a -- had -- had a meeting that year, has duly elected its officers under State law, do the respondents take the position you have no authority to visit the corporation to determine that?
05-1342 +++$+++ 36533 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They take the authority -- the position that Michigan has no authority to impose on the State-chartered operating sub the two Michigan laws --
05-1342 +++$+++ 36534 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But let's -- there are two different kinds of regulations. I think Justice Kennedy was talking about regulations of a chartering State. This subsidiary was set up under the law of a State. It wasn't Michigan. Is there -- is anyone contesting that -- was it North Carolina?
05-1342 +++$+++ 36535 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, you're correct.
05-1342 +++$+++ 36536 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that they have to meet all the requirements for setting up a corporation and having meetings and all that that North Carolina requires of corporations that are incorporated in that State?
05-1342 +++$+++ 36537 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I've not heard them say that as to North Carolina law. But what they're saying is that the Michigan Mortgage Broker, Lenders and Servicers Licensing Act and the Michigan Secondary Mortgage Act do not apply to them.
05-1342 +++$+++ 36538 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that seems to be a standard preemption case. It's not as broad as just visitorial powers generally. Maybe I'm wrong. Do some subsidiaries of the -- of a national bank do things other than banking, say title insurance or something like that? I don't see anything in the record where the OCC wants to displace the State as to that. This is just a standard preemption case. When the OCC has regulations that control, then the State has no authority to add to those regulations or to have, or to have contrary regulations. But if it's something that doesn't have to do with banking at all, then I suppose they would say -- I can ask them -- I suppose they say the State has authority to regulate.
05-1342 +++$+++ 36539 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The important point, though, Your Honor, is that the OCC has no independent power to preempt the validly enacted legislation of a sovereign State.
05-1342 +++$+++ 36540 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Doesn't it have exactly the same power that any other agency or Congress has? That it has the power, if its regulation is authorized, it has the power to what they say, preempt a state law that obstructs, impairs, or conditions a bank's ability fully to exercise its federally authorized real estate lending powers? That's what they say, and then they list some examples. Suppose they said nothing. Wouldn't we be in the same boat? After all, a state cannot under the Federal Constitution normally enact a law that interferes or stands as an obstacle to the achievement of the objective of the Federal law. So if that's right, or if it's wrong, explain why it's wrong, but if it's right, why don't you tell me whether the two laws that you are worried about do or do not stand as an obstacle to the full achievement of the purposes of the statute as implemented by their regulation?
05-1342 +++$+++ 36541 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They do not. First of all, if the OCC -- if Congress intends to alter the balance that I spoke of earlier, it must do so with clear and manifest language. There must be unmistakably clear language that Congress intended to authorize the OCC to preempt the state law.
05-1342 +++$+++ 36542 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let's assume I don't agree with you about that, that I think conflict preemption does not require clear language. Assume that, even though you disagree with it. Now on my assumption that you can have the law if it doesn't conflict, but you can't have the law if it does conflict, so now you explain to me why the two laws at issue here don't conflict.
05-1342 +++$+++ 36543 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, in the Barnett case and in the Atherton case, in order to have the kind of problem you're talking about, there must be a significant interference with the business of banking or an incapacitation of the business of banking. Our Michigan law doesn't incapacitate what --
05-1342 +++$+++ 36544 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Blanchard, may I ask you a question, perhaps preliminary to what you are launching into? My understanding was that you did not question the OCC's regulatory authority over a unit that it says can do what the national bank itself could do in the real estate business, no more, no less. OCC regulation, visitation, all the rest, OCC's regulations validly applied to this subsidiary that has been set up in North Carolina and is operating in Michigan; is that right? It is one thing for you to say we have the authority to regulate. Are you saying at the same time that OCC is out of the picture because its dual regulation conflicts with the inevitable?
05-1342 +++$+++ 36545 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I am not saying that. What I am saying is the OCC does not have the exclusive right.
05-1342 +++$+++ 36546 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Ah, you're saying, you started to say they can't have their cake and eat it too, but you're saying they can have the worst of all possible regulatory worlds, so that they've got two equally competent regulators, and they have to meet the requirements of both?
05-1342 +++$+++ 36547 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. I am saying that --
05-1342 +++$+++ 36548 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if they don't want to, they don't have to set up a separate subsidiary, right? They can do this business directly as a national bank and they're not going to be subject to any visitation?
05-1342 +++$+++ 36549 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You are absolutely correct. As I started to say earlier, they made that choice and they came to Michigan, and they obtained a certificate of authority from the Michigan Corporations Division as a foreign for-profit corporation doing business in the state.
05-1342 +++$+++ 36550 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right. And I would have thought your answer to Justice Breyer was yes, that they get to regulate to the extent they want to, and the state does, and if there's a conflict, the federal regulation will prevail, but what's the problem here is that they're issuing a categorical regulation saying the state can't regulate at all.
05-1342 +++$+++ 36551 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. They are claiming exclusive preemptive authority.
05-1342 +++$+++ 36552 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I didn't understand that you made this --
05-1342 +++$+++ 36553 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I just finish, please? You argued, as I understand it, correctly, that the state does, exercises certain regulatory controls that will not be exercised -- will not be replaced by federal controls; is that right? In other words, you -- that they will be unregulated to a certain extent? There will be less regulation under the federal sovereign than there is under the state; is that correct?
05-1342 +++$+++ 36554 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You are correct, Your Honor, in that Wachovia Mortgage as a subsidiary of a national bank is a registrant under Michigan law. And as a registrant, it is not subject to an annual --
05-1342 +++$+++ 36555 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can you give me some specific examples of what Michigan would require that the OCC does not require? You mentioned licensing, for example.
05-1342 +++$+++ 36556 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Michigan would require Wachovia Mortgage to register. There's a difference between registration and licensure. As a subsidiary of Wachovia Bank, they are a registrant like they've been for the last --
05-1342 +++$+++ 36557 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does that have any impact on the way they run their business?
05-1342 +++$+++ 36558 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
05-1342 +++$+++ 36559 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, does it make any difference as a matter of what they have to do in order to comply with the law that they are now exempt from Michigan rules and subject to Federal rules instead?
05-1342 +++$+++ 36560 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Michigan just wants to be able to -- and the other states -- to deal with fraud and deceit and material misrepresentation in mortgage transactions, and to have a say over the corporations that come to their state and do business.
05-1342 +++$+++ 36561 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Blanchard, if I could go back to what you were saying before this last line of questioning, I didn't understand your position to be that the OCC can come in and regulate this non-Federal bank up to the point where its -- well, can do it apparently without limitation. And where its regulation conflicts with the state regulation, the Federal prevails.
05-1342 +++$+++ 36562 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Or the more restrictive.
05-1342 +++$+++ 36563 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ah, or the more restrictive.
05-1342 +++$+++ 36564 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's the difference.
05-1342 +++$+++ 36565 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The Federal Government says you can have outstanding loans of $10 billion and the state says no, you can have outstanding loans of 8 billion.
05-1342 +++$+++ 36566 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, the --
05-1342 +++$+++ 36567 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wait. What happens in that situation?
05-1342 +++$+++ 36568 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it doesn't happen in Michigan because --
05-1342 +++$+++ 36569 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, invent some other hypothetical then. I'm talking about a situation in which the Federal law is more permissive than the state law. Which law prevails? The Federal law allows this bank to do things which the state law would not allow it to do. As I understood your prior answer, you say oh, of course, if the Federal law allows to it do things the state law doesn't allow to it do, the Federal law prevails. I didn't understand that to be your position. And if it is your position, I don't know what all this fuss is about. That's the end of the game, isn't it?
05-1342 +++$+++ 36570 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. You see, in -- we do not conduct -- they are exempt from an examination where we go in and look yearly at such things as capital assets management, earnings, liquidity. Those aren't the kinds of things that we're talking about. They, as a registrant, they are exempt from that, from an annual examination. They're not incapacitated, nor are --
05-1342 +++$+++ 36571 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Exempt from state examination?
05-1342 +++$+++ 36572 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The state chartered corporation, Wachovia Mortgage, is exempt under Michigan law from an annual examination.
05-1342 +++$+++ 36573 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We're not looking for that. We're looking for the opposite. As I read this, the banking agency has not said, we wipe out all of your laws. They've said, we wipe out a subset of laws, which are defined as those laws that obstruct, impair, or limit the ability of this bank to fulfill its federally mandated powers. Okay? So they're just saying, we only get the ones that are in conflict. Now, they then have a list of which ones they preempt and which ones they don't. So my question to you is, give me a list here of which ones they think conflict that you think don't.
05-1342 +++$+++ 36574 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They -- their position is that both laws that we append to our brief, both laws in their entirety, are preempted.
05-1342 +++$+++ 36575 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Their position is not that it only preempts in cases of conflict. Under 12c apart, 7.4006, it says, state laws apply to national bank operated subsidiaries, which is what we're dealing with here, to the same extent that those laws apply to the parent national bank, which is to say not at all.
05-1342 +++$+++ 36576 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
05-1342 +++$+++ 36577 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it's not a case of conflict preemption. They're trying to preempt state law whether it conflicts or not, right?
05-1342 +++$+++ 36578 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor.
05-1342 +++$+++ 36579 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You do have -- one thing that seems concrete and clear to me -- correct me if I get this wrong -- Michigan is kind of deferring to OCC in its primary jurisdiction sense. It says customers, if you've got complaints about what this operating subsidiary is doing, you go first to the OCC; and then if we think -- we, Michigan -- thinks OCC has not given you an adequate response to your complaint, we take over.
05-1342 +++$+++ 36580 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You are exactly correct. That's the Michigan regulatory --
05-1342 +++$+++ 36581 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So it's kind of a reverse supremacy. Where it's usually the feds that have the last word, but here you're saying Michigan has decided that it will let OCC go first and Michigan will be kind of a supervisor for the adequacy of the OCC's handling of the consumer's complaint?
05-1342 +++$+++ 36582 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, you are exactly correct. Our regulatory framework in Michigan says that the complaint is referred to the appropriate Federal agency, and only if that complaint is not being adequately pursued does the commissioner have that window of investigative authority for her to pursue it. It is a cooperative type of statute.
05-1342 +++$+++ 36583 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you know another arrangement where the Federal agency goes first but then the state agency has authority to say Federal agency, you didn't deal with this consumer adequately, so we will take over? I know schemes that work the other way where the state goes first, and then the Federal authority, but do you know another one?
05-1342 +++$+++ 36584 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Another one that --
05-1342 +++$+++ 36585 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where the primary adjudicator, decision-maker would be the Federal authority, but then the state can override that if it thinks the Federal authority hasn't done an adequate job?
05-1342 +++$+++ 36586 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in a sense, in our statute, the commissioner of the state agency is able to investigate if the complaint referred to the comptroller has not been adequately --
05-1342 +++$+++ 36587 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's not the question. Justice Ginsburg is trying to find out if you know any other situation where when the Federal agency doesn't do an adequate job, the state agency comes in?
05-1342 +++$+++ 36588 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No situations come directly to mind.
05-1342 +++$+++ 36589 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Maybe civil rights actions where there's a Federal agency that has some remedial powers and if the Federal agency doesn't act, the citizen is free to bring litigation in state court? I guess that would be --
05-1342 +++$+++ 36590 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or environmental regulation where just because the Federal EPA doesn't take a particular action against a polluter, doesn't mean that the state can't take action against the polluter.
05-1342 +++$+++ 36591 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-1342 +++$+++ 36592 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't the action an inadequate action? Michigan is saying yeah, the Federal authority can do with respect to this unit just what it would do to a national bank itself, but if we think that is inadequate, that is a question of just one act or the other, but if the -- it is the state judging the adequacy of a particular Federal response.
05-1342 +++$+++ 36593 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1342 +++$+++ 36594 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So if the Federal U.S. Attorney prosecutes, decides to prosecute someone for manslaughter, the state can decide that's not an adequate enough response and prosecute them for murder, right?
05-1342 +++$+++ 36595 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-1342 +++$+++ 36596 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Could the OCC --
05-1342 +++$+++ 36597 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did this go through your -- can I just ask --
05-1342 +++$+++ 36598 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Sure.
05-1342 +++$+++ 36599 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This still goes to the same thing. Does Michigan do this by grace? If Michigan wanted to, could it just tell the feds to butt out and say, you know, all these years we've been letting you come in first, and we only step in when we think you haven't done a good job, but we've had it. (Laughter.)
05-1342 +++$+++ 36600 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Especially after this lawsuit, get out, we're going to regulate our state banks?
05-1342 +++$+++ 36601 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. That would be contrary to the express statutory scheme in Michigan.
05-1342 +++$+++ 36602 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know in Michigan. I'm saying, could Michigan change its statutory scheme to kick the Feds out? Or would that be prevented by this Federal statute we're discussing here? I'm trying to see what you think this Federal statute does. Or what the --
05-1342 +++$+++ 36603 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Federal rule provides that the operating -- the State chartered operating subs are to be treated just like the law pertaining to the parent national bank. And there is no authority from Congress given to the OCC that kind of rule. The OCC only has the authority that Congress gives it, either through a preemptive statute or through the dell designation of preemptive authority; and Congress has not given them that kind of power.
05-1342 +++$+++ 36604 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let me ask the question -- the regulatory question. You do not dispute Michigan does not dispute that the operating -- well, strike that. Michigan does not dispute that national banks can go into business of real estate loans? And Michigan does not dispute that Congress has authorized national banks to operate through subsidiaries for specific purposes like this. My question is can you give me any plausible reason to think that Congress would have contemplated this system of potentially more restrictive State legislation when its national bank in a given instance decides to do -- to exercise its Federal banking power through a subsidiary rather than directly? Can you think of any reason that Congress would have contemplated the scheme that you're, that you're defending?
05-1342 +++$+++ 36605 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first of all, Your Honor, I'm not defending that Michigan has a more restrictive scheme or that Michigan law in any way incapacitates or significantly interferes with the business of banking.
05-1342 +++$+++ 36606 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if, if -- if the banks have got, let's say, a subsidiary has to go through two rounds of bank inspection every year instead of one round, it is going to cost them something. Regulation costs the regulated entity something. It is a burden on them. And we also have to assume that there may be instances -- you brought it up -- in, in which the, the -- the State burden is heavier. So with those possibilities in mind, can you think of any reason why Congress in authorizing the exercise of the Federal banking power through a subsidiary would have contemplated Michigan or any State would have this authority? It seems counterintuitive to me. They're saying you can -- - you can -- you banks can exercise the Federal banking power through a subsidiary. It would seem strange to me that Congress would silently say, "and, of course, we acquiesce to a -- a dual system of regulation that would not apply to the bank itself." What reason would Congress have had for assuming that might be the result?
05-1342 +++$+++ 36607 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ A recognition that the States have a sovereign, compelling and legitimate interest in regulating those corporations that it charters and that do business within its borders. And -- and that that balance should be respected.
05-1342 +++$+++ 36608 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So it is state sovereign immunity in effect, is the answer -- State sovereignty is rather the answer?
05-1342 +++$+++ 36609 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the - but the key point, and I would like to reserve whatever time I may have.
05-1342 +++$+++ 36610 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You better hurry then.
05-1342 +++$+++ 36611 +++$+++ TRUE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The key, the key point is that Congress has distinguished clearly and unequivocally between affiliates and national banks; but it has not included affiliates in either Section 481 or 484 of the National Bank Act. National banks are not synonymous or equivalent to the State-chartered operating subsidiaries.
05-1342 +++$+++ 36612 +++$+++ TRUE +++$+++ THE COURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Blanchard. Mr. Long?
05-1342 +++$+++ 36614 +++$+++ FALSE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court. I would like to start with the question that Justice Souter asked because there are some important principles that are really not disputed in this case, and I think they help to focus the issue that is before the Court. There is no dispute, as we understand it, that mortgage lending by national banks is supervised exclusively by the Comptroller of the Currency. And there is also no dispute that national banks' incidental powers under Section 247 include the power to make mortgage loans through a operating subsidiary. And an additional point is that both Federal statutes and Federal regulations state that when national banks make mortgage loans or exercise their banking powers through subsidiaries they do so subject to the same terms and conditions that apply to the exercise of the power by the national --
05-1342 +++$+++ 36615 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Blanchard, may I ask you a question. I just want to understand. Wachovia has branch banks all over the country. Are they generally subsidiaries or are they divisions of the bank?
05-1342 +++$+++ 36616 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, a branch of a national bank has a particular status under Section 36 of the National Bank Act.
05-1342 +++$+++ 36617 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I understand that. I'm asking a factual question.
05-1342 +++$+++ 36618 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would not be separately incorporated. So --
05-1342 +++$+++ 36619 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They are actually divisions, in effect, of the national bank itself?
05-1342 +++$+++ 36620 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think they are generally referred to as branches but I think its would be more a division. That would be --
05-1342 +++$+++ 36621 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ At least they are not separate corporate subsidiaries.
05-1342 +++$+++ 36622 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that --
05-1342 +++$+++ 36623 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is that, that the Best bank decided to use the subsidiary approach for this business, rather than the more traditional banking approach.
05-1342 +++$+++ 36624 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, of course, anything that a bank does through an operating subsidiary it could do through the bank. It can always do it through the bank. But there are many reasons why a bank may choose an operating subsidiary. They can be managerial reasons; it's -- just sometimes works better as matter of business management.
05-1342 +++$+++ 36625 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It protects from liability, too.
05-1342 +++$+++ 36626 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that is one of the reasons. Although --
05-1342 +++$+++ 36627 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- in the district.
05-1342 +++$+++ 36628 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I will say, Justice Stevens, I have not been able to find examples of national bank operating subsidiaries that have become insolvent. They are regulated very heavily by the Comptroller and so they don't.
05-1342 +++$+++ 36629 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you have a subsidiary that's in the mortgage lending business that presumably competes with other companies in the mortgage lending business that are not associated with national banks, and you're claiming an immunity from the regulation that their competitors are subject to. Is that right?
05-1342 +++$+++ 36630 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but again, Mr. Chief Justice, the national banks compete. And its undisputed --
05-1342 +++$+++ 36631 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that's fine, and they have an express provision in 48 -- 484(a) that says they're, they're exempt from regulation. The question is whether a separate subsidiary that is not a national bank that competes with other mortgage lending companies is immune from the regulation that those other companies --
05-1342 +++$+++ 36632 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But again, Mr. Chief Justice, thrifts, S&Ls, State-Chartered banks in all 50 States are permitted to have operating subsidiaries. It's recognized not just for national banks, but really for all types of banking institutions, that are operating subsidiaries are a useful tool of banking. This is not a sort of special privilege that's given --
05-1342 +++$+++ 36633 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Justice Breyer's questions were pointing out, to the extent your regulation -- the Federal regulation of your subsidiary conflicts with the State law, that regulation is going to prevail. The question is whether or not you are immune from State regulation across the board --
05-1342 +++$+++ 36634 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, and you asked that question. I mean, I think it might be useful to think first about national banks and then about the operating subsidiaries. It is not true that there are no State laws that apply to national banks. This Court's unanimous Barnett Bank decision is the clearest statement of the principle. Any State laws that prevent or significantly impair or impede the exercise of national banking powers are preempted. But many State laws having to do with contracts --
05-1342 +++$+++ 36635 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In real world terms, what's involved here? What are examples of some of the things that Michigan does or some other State does that impair or impede the operations to the --
05-1342 +++$+++ 36636 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The beginning is, it is a complete separate set of regulation. You have to register or obtain a license. You have to submit to examination by the regulator. Investigation. Enforcement. There are substantive laws; Michigan has some that are not directly at issue in this case --
05-1342 +++$+++ 36637 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ One of those laws might be, I mean, let's say they have a law, when you're issuing a mortgage to a consumer, you have to give them a disclosure about how much they're going to end up paying over the life of the loan and all that. And they require that of anybody who issues a mortgage in Michigan. Could that law be applied to your subsidiary?
05-1342 +++$+++ 36638 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the question, Mr. Chief Justice, would be is it preempted as to the national bank? The Comptroller of the Currency would say yes. But the issue in this case is if it is preempted as to the national bank, then it is also preempted when the national bank chooses to exercise this power that it has under Section 24 --
05-1342 +++$+++ 36639 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't -- isn't your friend correct then? You are really trying to have your cake and eat it, too. You're saying if we did this without a subsidiary, we wouldn't be subject to that. But you want to be able to operate through a subsidiary and yet not be subject to the same rules that apply to other people.
05-1342 +++$+++ 36640 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but it, it with respect, it is not really a case of having our cake and eating it, too. We are in the area of powers of national banks. And the Court has recognized for a century that in that area, when national banks have powers, including incidental powers recognized by the Comptroller, they generally preempt any State law that prevents or significantly interferes --
05-1342 +++$+++ 36641 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's the question I had. I got somewhat thrown by the Chief Justice's question, because I thought first, when I read the reg, 34.4.ab, that those things that are preempted are those things that obstruct, impair or condition, or in other words limit, the Federal powers of a national bank.
05-1342 +++$+++ 36642 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That, that is correct.
05-1342 +++$+++ 36643 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But I thought we were basically dealing with conflict --
05-1342 +++$+++ 36644 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-1342 +++$+++ 36645 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- not fielding.
05-1342 +++$+++ 36646 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's -- that's one level --
05-1342 +++$+++ 36647 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But -- but the last part of the reg says that what applies, no State law applies to a national bank operating subsidiary if it doesn't apply to the parent bank. And I began to think it fields preemption. Am I right in thinking that it is conflict preemption, not field, because it is conflict in the case of a national bank?
05-1342 +++$+++ 36648 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well -- it's, it's a very important point. And our position is there are actually several ways in which you could analyze this case and arrive at the conclusion that the Comptroller's regulations are valid. One is looking simply at statutory language and saying we would, we the Court would reach this result as we did in the Franklin National Bank case even without any regulation. And second of all is to say the regulations are a reasonable interpretation of the statute. A third is to say that the Comptroller has broad rulemaking authority. And as this Court recognized in De La Cuesta and many other cases, an agency exercising its rulemaking authority can preempt State laws even though the statute itself would not --
05-1342 +++$+++ 36649 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think, the question is not whether it can preempt State laws but whether the rulemaking authority can, can eliminate a, a basic division of the statute into a national bank and affiliates of the national bank. The statute makes a clear distinction between the two. And the effect of what, of what the agency has to done here is simply to eliminate that distinction, and to say really it doesn't matter.
05-1342 +++$+++ 36650 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. It -- I --
05-1342 +++$+++ 36651 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you are an affiliate of a national bank, you have the same immunity that the national bank has. That's not what the statute says.
05-1342 +++$+++ 36652 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I have a two-part answer to that question, Justice Scalia. One is that Section 484 of the section you're referring to does limit the visitorial authority as to national banks, but it is silent as to operating subsidiaries or any other type of affiliate. States do exercise visitorial authority over some affiliates of national banks. That's established. Operating subsidiaries are a special type of affiliate; 484, which was enacted during the Civil War, a hundred years before operating subsidiaries were authorized, really doesn't address the question of visitorial authority.
05-1342 +++$+++ 36653 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, an operating subsidiary is an affiliate, right? What kind of affiliates did they have before they had operating subsidiaries? Did they rent pool halls, or what?
05-1342 +++$+++ 36654 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's a type of affiliate --
05-1342 +++$+++ 36655 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I would have thought that any affiliate of a national bank would, would be engaged in essentially banking business.
05-1342 +++$+++ 36656 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, but this really became clear, in answer to your question, in part two of my answer. In 1999 when Congress enacted the Gramm-Leach-Bliley Act, it directly addressed this question of affiliates of national banks. And this is on page 2A of our appendix. It refers to, it created a new type of affiliate, for the first time, financial subsidiaries which can do anything financial in nature. So they can actually engage in activities that the parent national bank could not. But if you look at the bottom of page 2A of our appendix, this is Section 24A now of the act, it said that financial subsidiaries can also engage in activities that are permitted for national banks to engage in directly, subject to the same terms and conditions that govern the conduct of the activities by a national bank. And then at the bottom of 3A and going over to 4A where they actually define financial subsidiaries, they do so by distinguishing them from the operating subsidiaries which had existed for decades. And at the top of 4A you see that the operating subsidiary again engages only in activities that the national banks may engage in directly and are conducted subject to the same terms and conditions. Then if you'll bear with me a moment longer, on page 12A of our appendix some additional provisions of GLBA -- actually, that's the Gramm-Leach-Bliley Act, GLBA people call it -- said -- this is on 12A -- that securities activities and insurance activities, activities that have been traditionally subject to State regulation, if they're engaged in by a functionally regulated subsidiary, operating subsidiary or a financial subsidiary, then they may be regulated by relevant State securities authorities or State insurance authorities. So Congress was actually quite specific. I mean, your question is about statutory language. You don't find this in 484, which is, since it's a century old, doesn't really get into this. But in this 1999 statute, it's all about subsidiaries of national banks. Congress was pretty clear if it's securities, if it's insurance, it can be regulated by States. They were specific about that. If it's a banking activity that the bank itself can undertake, it's subject to the same terms and conditions. And so, going back to the Chief Justice's question, you have this question of would it be a preempted State preempted state law if it were applied to the national bank when the national bank is making a mortgage loan. Not every State law is preempted because not every State law conflicts. But if it does --
05-1342 +++$+++ 36657 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What authority do you have for the proposition that when then Federal law says subject to the same terms and conditions that they're referring To State regulation as opposed to the same Federal regulation that applies to the national banks?
05-1342 +++$+++ 36658 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I mean, we have section 7.4006, which is the 0CC's regulation interpreting that language in the statute and in its own OPSUB regulations, section 5.34. And we also relied simply on the ordinary meaning of "terms and conditions." It means prerequisites, limitations.
05-1342 +++$+++ 36659 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was 7.4006 issued pursuant to -- what did you call it, GLBA?
05-1342 +++$+++ 36660 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ GLBA?
05-1342 +++$+++ 36661 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. Or did it predate that?
05-1342 +++$+++ 36662 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 7.4006 was issued pursuant to 24-7, which is this incidental powers provision, and 24(a), which I've just been walking you through, which is a provision of GLBA. So it is based partly upon GLBA, and it is an interpretation of the same terms and conditions language.
05-1342 +++$+++ 36663 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Conflict preemption basically strikes down a State law that stands as an obstacle to the full enforcement of the Federal law.
05-1342 +++$+++ 36664 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-1342 +++$+++ 36665 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. Now, with that in mind, suppose that you didn't have either 7.4006 or 34.4(a)(B). Neither existed. But we listened to what the agency said as a Court and they explained how the regulation worked. Would you expect to come to precisely the same result?
05-1342 +++$+++ 36666 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I mean, of course --
05-1342 +++$+++ 36667 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would you or not?
05-1342 +++$+++ 36668 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do have them and we think that makes the case easier, of course.
05-1342 +++$+++ 36669 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I know, but would you -- would you expect to come to the same result or not?
05-1342 +++$+++ 36670 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. We would say that if you start with 24-7 and the incidental powers of national banks and the undisputed point that one of those incidental powers is for the national bank --
05-1342 +++$+++ 36671 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How does it conflict with Federal banking authority for the State to audit the books of the mortgage subsidiary?
05-1342 +++$+++ 36672 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it has been established since the beginning of the national banking system that -- and this goes back to the history of the first and second Bank of the United States in McCullough against Maryland -- that the national banking system is protected from possibly unfriendly State legislation.
05-1342 +++$+++ 36673 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Take my earlier case about the consumer disclosure. Michigan has a law, I assume, that any mortgage lender has to tell the consumer all this information. Would that conflict with the authority of a national bank?
05-1342 +++$+++ 36674 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Comptroller's view as I understand it is that it would. But again let me emphasize --
05-1342 +++$+++ 36675 +++$+++ TRUE +++$+++ THE COURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ How?
05-1342 +++$+++ 36676 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because --
05-1342 +++$+++ 36677 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you think any regulation would conflict with the national bank status?
05-1342 +++$+++ 36678 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that may go too far. But I think what Comptroller has done, it has -- has been to look at a series of these State regulations and determine whether in fact they do impair or impede the exercise --
05-1342 +++$+++ 36679 +++$+++ TRUE +++$+++ THE COURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm trying to get a handle on it. As I understood the case that came, I don't think there's disagreement on either side about how conflict preemption works. But I thought your position was that more is involved here and that the State can't regulate it at all, and you're not getting into a conflict preemption question. It's just if it's a State regulation it can't --
05-1342 +++$+++ 36680 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think our position is there are multiple roots that we can win this case. One is based on conflict preemption. Another --
05-1342 +++$+++ 36681 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you do take a field preemption position, don't you?
05-1342 +++$+++ 36682 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, of course. And another route is simply that the agency has --
05-1342 +++$+++ 36683 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, it's truly broader than just conflict preemption.
05-1342 +++$+++ 36684 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-1342 +++$+++ 36685 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Literally.
05-1342 +++$+++ 36686 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. And the agency has broad rulemaking power. It's exercised it here. There's really no dispute about what the OCC's rules mean. The only question is whether they're valid and then what is --
05-1342 +++$+++ 36687 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What's your best case for the proposition that an agency and not the Congress defines the extent of field preemption?
05-1342 +++$+++ 36688 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That an agency and not the -- certainly the Delaquesta line of cases stand for the proposition that if an agency has preempted State law by regulation, the questions are simply whether the agency has acted within the scope of its delegated authority and whether it is a reasonable accommodation of the conflicting principles and whether there's any reason to think that Congress would have disagreed with it. Are there -- I mean, there are examples. For example, in the world of Federal thrifts OTS has a sort of field preemption as I understand it. It's evolved differently in the world of national banks. That's conflict preemption.
05-1342 +++$+++ 36689 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is a functionally regulated subsidiary of a depository institution.
05-1342 +++$+++ 36690 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that that again goes to this scheme of GLBA that I was trying to describe. The notion that Congress had is that you're going to regulate by function. So if it's insurance, the State can regulate it whether it's in the subsidiary or in the bank. If it's securities, the SEC and in some circumstances the States can regulate it. But if it's core banking functions like mortgage lending, that's going to be regulated subject to the same terms and conditions that apply when the bank itself conducts those activities.
05-1342 +++$+++ 36691 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And is that a functionally regulated subsidiary?
05-1342 +++$+++ 36692 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-1342 +++$+++ 36693 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If it's just engaging in banking activities?
05-1342 +++$+++ 36694 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is the concept as I understand it. It's going by function and we think that shows actually Congress did --
05-1342 +++$+++ 36695 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does Wachovia have any branch banks in Michigan?
05-1342 +++$+++ 36696 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Wachovia does not, although -- I mean, an interesting feature of the Michigan law is if they did Michigan's law would not apply, which we think is not consistent with their view that the OCC is an inadequate regulator, because it would be exactly the same whether or not there's a branch.
05-1342 +++$+++ 36697 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are there States in which Wachovia has both branch banks and subsidiaries comparable to this?
05-1342 +++$+++ 36698 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, yes. North Carolina and others. I will add, there was a point at the beginning that this Wachovia Mortgage Company actually was regulated by Michigan for 6 years and there were no problems. During that period it was a subsidiary of a bank holding company, and that's a completely different situation. Those are not regulated at all by the OCC. So of course they were regulated by Michigan. That's the way subsidiaries of bank holding companies are regulated. That's simply a different situation. If there are no further questions, I will --
05-1342 +++$+++ 36699 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Long. Mr. Srinivasan.
05-1342 +++$+++ 36701 +++$+++ FALSE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: Let me begin by addressing this question of whether what's going on here is conflict preemption or field preemption. Now, it depends on how one defines those terms. But as we understand it it's conflict preemption, not field preemption, in the following sense. Our position is not that State laws have no application to operating subsidiaries or to national banks for that matter. It's that State laws apply to the same extent to operating subsidiaries as they would to national banks. And as this court has made clear in the Atherton case and in the Barnett Bank case, State laws do apply to national banks and operating subsidiaries in a variety of respects, and State contract law would be an example. But with operating subsidiaries in particular, State laws dealing with corporate governance questions, for example the process of incorporation, dissolution, shareholder voting, and things of that sort, would be controlling and so federal law doesn't control those sorts of aspects.
05-1342 +++$+++ 36702 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's field preemption when it comes to regulation. Yes, if the bank is sued the normal rules of contract are going to apply for enforcing a contract. But you're claiming field preemption with respect to regulation, correct?
05-1342 +++$+++ 36703 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I guess it depends on the degree to which the regulations apply to the national banks. That's my only point, is that State laws apply to the same extent to the operating subsidiary as to the national bank.
05-1342 +++$+++ 36704 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ State laws generally -- State agencies generally don't regulate national banks at all, right?
05-1342 +++$+++ 36705 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ State agencies don't generally do that because there's a specific statutory prohibition on that. And Justice Scalia, this goes to your questions about the scope of these provisions at 12 U.S.C. 484(a) and 481. It's true that those provisions say by their terms that visitorial authority resides exclusively with the Comptroller of the Currency with respect to national banks, and there's another provision that deals with affiliates. And so that's the point with visitorial authority. But visitorial authority by its very nature is asserted in service of and enforcement of some underlying substantive requirement, and the underlying substantive requirement at issue here is the requirement that operating subsidiaries register with the State. And so there's a question of conflict preemption that applies both to the national bank and the operating subsidiary of whether that underlying substantive registration requirement could be applied to the national bank or could be applied to the operating subsidiary.
05-1342 +++$+++ 36706 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but it is true, is it not, that as long as this mortgage company was a subsidiary of a holding company rather than the bank itself, the State would have done the visiting, the visitorial power, whereas once they changed the Federal Government assumed that responsibility?
05-1342 +++$+++ 36707 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't know what you mean by "holding company," Justice Stevens.
05-1342 +++$+++ 36708 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, as your co-counsel pointed out, previously this very company was a subsidiary of a holding company that also owned the bank, and at that time it was exclusively regulated by Michigan.
05-1342 +++$+++ 36709 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, because it wasn't an operating subsidiary of a federally chartered national bank.
05-1342 +++$+++ 36710 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the change in the corporate structure is the sole basis for saying now it's exclusively regulated by the OCC?
05-1342 +++$+++ 36711 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is, but it's changing the corporate structure in a fundamentally important way. That's that it's no owned and controlled by a federally chartered national bank.
05-1342 +++$+++ 36712 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But this results in field preemption to the extent that the exercise of visitorial power is a regulatory function?
05-1342 +++$+++ 36713 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again it depends on how one defines those terms. And I don't take issue with the fact that as a consequence of the fact that this became a subsidiary --
05-1342 +++$+++ 36714 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it is now only the Federal agency that does the visiting, whereas it used to be only the State agency?
05-1342 +++$+++ 36715 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
05-1342 +++$+++ 36716 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the question that led me to is how many additional personnel did OOC employ when it took over this area for 48 States?
05-1342 +++$+++ 36717 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't have an empirical answer to that question.
05-1342 +++$+++ 36718 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it was certainly quite a few people, I assume.
05-1342 +++$+++ 36719 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But Justice Stevens, in the regulatory materials that attended the promulgation of these rules OCC specifically addressed the question whether it had sufficient resources to exercise oversight authority over operating subsidiaries of national banks. And let's be clear. It's not that the OCC previously had no authority over operating subsidiaries. The question is whether the OCC has exclusive authority over operating subsidiaries. And the OCC determined in the regulatory materials that it had sufficient resources to exercise oversight authority over operating subsidiaries --
05-1342 +++$+++ 36720 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the authority under the old regime was just to make sure that the operation did not affect the financial stability of the parent bank.
05-1342 +++$+++ 36721 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that's because it wasn't an operating subsidiary of a federally chartered national bank, and that changes things in a fundamental way for the following reason: That under the Barnett Bank case the rule of preemption, the special rule of preemption that applies in the context of national banking, is that when you're dealing with enumerated or incidental powers of national banks -- and one incidental power of a national bank is undisputed to be the power to conduct affairs through an operating subsidiary -- that the grants of those powers are normally preemptive of rather than preempted by State law> And so once the operating --
05-1342 +++$+++ 36722 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That was an effort of the State to prohibit the national bank from engaging in the activity, correct?
05-1342 +++$+++ 36723 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that was. But the Court --
05-1342 +++$+++ 36724 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's an obvious case of conflict preemption. Here we have a question of whether or not the State can regular the operating subsidiary to any extent.
05-1342 +++$+++ 36725 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the Court's decisions aren't limited to prohibitions of that sort. I'd make two points in that regard. First of all, in one sense this is a prohibition, because the operating subsidiary can't engage in federally authorized activities unless and until it gets the State's permission. So at least there is a prohibition at the outset. But more importantly, the Court's cases aren't limited to situations involving prohibitions of the sort that Your Honor posits, because in the Franklin National Bank case that was a situation in which the national bank had the power to accept savings deposits and the State law that was deemed to be preempted there didn't prohibit the national bank from accepting savings deposits.
05-1342 +++$+++ 36726 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What comes next? Can the OCC say, well, the corporate law of this State doesn't really allow subsidiaries to do as much as we think a subsidiary of a national bank ought to be able to do, so we're going to attribute additional corporate powers to this subsidiary? Can it do that?
05-1342 +++$+++ 36727 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, not if you're talking about corporate powers, because those are governed by State law. What it could do, though, is regulate the subsidiary's conduct of the business of banking, because, after all, an operating subsidiary has one purpose and one purpose only, and that's to carry out functions that the national bank itself could perform.
05-1342 +++$+++ 36728 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What troubles me, and maybe you can answer to it more specifically than you have, is that the core function of a banking regulatory agency is the visitation power, and the Banking Act makes it very clear that there is visitation power to national banks and makes it very clear that there is not for subsidiaries. And here is a regulation which under the guise, it seems to me, of defining the powers of the national bank simply eliminates that distinction. And it seems to me that perhaps goes beyond what an agency regulation is allowed to do.
05-1342 +++$+++ 36729 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect, Justice Scalia, I don't think the statutes say that at all. There is a statute, 484(a), that says that the OCC's visitorial authority is exclusive with respect to national banks. But there is no statute that says that the OCC's visitorial authority is not exclusive with respect to subsidiaries. There's another statute that deals with affiliates. Now one point is that affiliates are not limited to subsidiaries, but they could include for example, I guess brother and sister corporations for lack of a better term, that are controlled by a common parent. But another point is that at the time these statutes were enacted, Congress simply didn't have within its field of vision the notion that a national bank would have the power to exercise its functions through a subsidiary corporation.
05-1342 +++$+++ 36730 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why should we assume that they wanted to preempt state laws to that extent.
05-1342 +++$+++ 36731 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because what Congress was trying to do is to make sure that the OCC had exclusive visitorial authority with respect to the conduct of national bank function. It's just at the time that these statutes were enacted, the only play that national bank functions were being conducted was by a national bank itself. Now later on, when the laws of all 50 states, the OTS, the Federal Reserve with respect to state member banks, and the comptroller gives banks the authority to conduct national -- to conduct bank functions through its subsidiaries, then this issue arises about who exercises visitorial authority with respect to the conduct of those functions for a subsidiary. And it stands to reason that if the baseline rule is that with respect to the conduct of national bank functions through a national bank itself, the OCC visitorial authority is exclusive, then when a national bank exercises its Federal entitlement to conduct those very same functions through an operating subsidiary, the OCC's visitorial authority, likewise, would be exclusive. That seems to me to be an entirely reasonable regulatory determination by the comptroller, and there's nothing in those statutory provisions that speaks directly to that issue and that in any way precludes the comptroller from reaching that determination.
05-1342 +++$+++ 36732 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Practically, is there any difference between the way they operated when they were just a corporation as before, and now a parent and sub?
05-1342 +++$+++ 36733 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there could be. I don't know about this particular case but there absolutely could be, Justice Ginsburg, because when they become subsidiaries they are controlled by the national bank and not by some other entity. And the reason that a national bank would choose to engage in this sort of structure rather than folding the enterprise into the bank itself are many fold. And in part it's for efficiency purposes because you can have focused management, especially when you're dealing with the sort of specialized things that operating subsidiaries typically do. But there's also other reasons. For example, there's a modularity component to this in the sense that the best specialized functions such as mortgage lending, very often a national bank will purchase an entity that conducts that activity, and may be interested in selling the entity later, and it's much more straightforward to do that if those functions are maintained in a separate subsidiary corporation.
05-1342 +++$+++ 36734 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there any aspect of state law, including liability limitation, that they want to take advantage of by establishing a subsidiary chartered under state law, Michigan or another state, and yet they're claiming immunity from all other state regulations?
05-1342 +++$+++ 36735 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, with respect to liability limitation in particular, Mr. Chief Justice, I should clarify that veil piercing principles and things of that sort would be governed by state law with respect to the operating subsidiary. So if the question is whether the corporate veil is pierced, state law would dictate an answer to that question. But, may I just finish one thought? States won't have an incentive to liberally construe veil piercing principles with respect to national banks precisely because state member banks in all 50 states also have operating subsidiaries through which they charter banks to conduct banking functions. Thank you.
05-1342 +++$+++ 36736 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Blanchard, you have a minute remaining.
05-1342 +++$+++ 36738 +++$+++ FALSE +++$+++ MR. BLANCHARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Two key points. First, Section 484 and 481 have been amended subsequent to the time operating subsidiaries came into play. Congress knew of operating subsidiaries when it amended 484 twice in the 1980s, and 481 was amended four times. Yet, never did Congress insert the word "affiliates" into the exclusive power of the OCC in 488. Secondly, the Gramm-Leach-Bliley act is being greatly distorted. The same terms and conditions language that my opponent referred to was meant to return op subs only to the authority that the parent bank could engage in. It wasn't preemptive or meant to preempt the states. The comptroller had issued a ruling, 34.F, (f), and they had allowed operating subsidiaries to do things differently from the parent bank.
05-1342 +++$+++ 36739 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Blanchard. The case is submitted.
05-1345 +++$+++ 36743 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument next in United Haulers Association versus Oneida-Herkimer Solid Waste Management Authority. Mr. Tager.
05-1345 +++$+++ 36745 +++$+++ FALSE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The barriers to interstate commerce imposed by the flow control ordinances in this case are even more severe than those resulting from the ordinance this Court struck down in Carbone. As in Carbone, no local waste can leave the counties for processing. In addition, now that Respondent's landfill is up and running no local waste can leave the counties for disposal either. The issue here is whether Carbone is inapplicable to this outright embargo merely because Respondent's own the facilities to which the haulers are required to bring the waste. The answer is no, and the reason is that the concerns underlying the Commerce Clause are implicated whether interstate commerce was being obstructed for the benefit of a public enterprise or a private one. The whole point of the Commerce Clause was to promote the national economy and to put an end to parochial barriers to interstate trade. This Court has consistently held that embargoes, local processing requirements, and other barriers to interstate commerce violate the Commerce Clause because such laws inevitably prompt resentment, retaliation, and ultimately --
05-1345 +++$+++ 36746 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I guess in many thousands of municipalities throughout the United States it's fairly common to have a locally owned electricity distribution company, or an electrically -- or a gas distribution company. And I thought it was fairly common for a municipally owned pipeline, gas pipeline, or electricity distribution to say, if you live in our town you've got to buy from us; you've got to buy from the local community. And I guess that's been going on for about 110 years. And yet I've never seen anybody think or write or anything that that violated the Commerce Clause. But of course, there could be somebody in another State who'd like to sell electricity to the people in our town. They can't do it because the town says, we own the company and you got to buy from us. Now, if we agree with you are we saying that all those gas companies, distribution companies, et cetera, are behaving unconstitutionally?
05-1345 +++$+++ 36747 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The first point of clarification on that is the question -- the question is does strict scrutiny apply.
05-1345 +++$+++ 36748 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, I'm not interested in tests. I'm interested in just the outcome. I just raise the question.
05-1345 +++$+++ 36749 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. I am not, I am not sure that it's correct that in all of those municipalities you hypothesize that they are actually pairing their provision of local --
05-1345 +++$+++ 36750 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I used to teach the subject and I can't say you're wrong. But I knew that it was a fairly common thing to have a certification that gave you a -- as a company, it would give them a local area in which they had an exclusive monopoly. And that was common and it was called a service area, and in the local town, the service area, I never even heard of a company trying to come in and sell from abroad, because I thought that this certificate gave them an exclusive right to provide the local electricity service or the natural gas service. I mean, it's a fairly obvious thing. And I might be wrong and I mention that my memory -- I've never focused directly on it. Just everybody I read and everything I read, I assumed the constitutionality of this. But of course, memory is fallible, including mine. Therefore, I raise the question.
05-1345 +++$+++ 36751 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if the utility is -- if the utility is privately owned --
05-1345 +++$+++ 36752 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, no. I'm not talking about that because I guess that would be trying to attack Carbone. Far be it from me. But I know at least there are these things called municipal gas utilities and municipal electricity companies; and during the New Deal that was thought to be quite a good thing, and that's years ago. In all that time when people were attacking New Deal agencies, I've never seen an attack based on this ground.
05-1345 +++$+++ 36753 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that the same logic would apply as in --
05-1345 +++$+++ 36754 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yeah, I think it would. The same logic would apply.
05-1345 +++$+++ 36755 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And it would apply to all of the cases this Court has ever held. In every single case involving an embargo or a local processing requirement or a local needs requirement, if you just substitute "in public ownership" you'd have the exact same case --
05-1345 +++$+++ 36756 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the fact is there is a difference between public ownership and giving an exclusive franchise to a public company. And the public ownership means that the people of the State have decided to have their own little nationalized industry, which again people don't like, many. But I never knew there was anything in the Constitution that forbid it.
05-1345 +++$+++ 36757 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that the whole point of the Commerce Clause was to stop these kind of --
05-1345 +++$+++ 36758 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Nationalized industries?
05-1345 +++$+++ 36759 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, to stop the idea that everything can be localized.
05-1345 +++$+++ 36760 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but you don't even have to get into the theory. What happens in a lot of municipalities of course is that they decide, well, we're going to run the waste treatment facility and we're going to tax the people in the municipality to support it and the service is going to be free. Now, is that a violation of the Commerce Clause?
05-1345 +++$+++ 36761 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If they're only providing it for free and not barring you --
05-1345 +++$+++ 36762 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
05-1345 +++$+++ 36763 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- from engaging in interstate commerce, in the event, for example, that you found there to be some additional benefit from engaging in an interstate transaction, I think we would have -- the Commerce Clause would be implicated. But as a practical matter, they would be able to accomplish much the same thing because most people would take the free service.
05-1345 +++$+++ 36764 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I don't understand. You know, as far as the impact on out of State competitors are concerned, it's exactly the same. The State or the municipality runs its own waste disposal facility. There is no charge for dumping the waste there. The cost of it is entirely covered by taxes. Okay. Now, the people you're representing, out of state people who would provide dumping grounds for this waste, they would charge 9 dollars a ton or whatever they would charge. It would be more than what the municipality is charging. Now, why isn't that a restraint on interstate commerce, discrimination against interstate commerce?
05-1345 +++$+++ 36765 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's market participation if all they're doing is public collection and bringing it --
05-1345 +++$+++ 36766 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, I'm sorry. You have to dump your waste in the municipal garbage dump.
05-1345 +++$+++ 36767 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If you parrot the Flow Control ordinance I think it's exactly the same.
05-1345 +++$+++ 36768 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay, so that's fair. Even if they support it entirely by taxes?
05-1345 +++$+++ 36769 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1345 +++$+++ 36770 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So that they're not competing in the marketplace in any way, they're not getting any money from the people who are dumping garbage. They get money from the whole tax base.
05-1345 +++$+++ 36771 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The impact on the interstate market is the same, and I think that --
05-1345 +++$+++ 36772 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, it is indeed.
05-1345 +++$+++ 36773 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the Court's Commerce Clause --
05-1345 +++$+++ 36774 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I didn't think you'd be willing to go that far, but you'd say that that violates the Commerce Clause.
05-1345 +++$+++ 36775 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I don't think I -- let me be clear. We don't need to win that case in order to win this case, because in this case --
05-1345 +++$+++ 36776 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I'm not so sure.
05-1345 +++$+++ 36777 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This case is almost on all fours with Carbone. All you've done is transfer the ownership. As you know, in Carbone that facility was destined to be owned within less than 2 years from the time the Court issued its opinion.
05-1345 +++$+++ 36778 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But in the majority opinion, as opposed to the dissent, at least as I read it, on almost every page it uses words like "local operator," "local enterprise," "local proprietor," "local business," doesn't speak, as the dissent did, about a municipal facility. It seems great care was taken in the majority to not characterize that transfer pledge as a municipal facility.
05-1345 +++$+++ 36779 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, two responses to that, Justice Ginsburg. First, there were other references where the opinion said "the town's facility." Indeed, the Flow Control witness himself referred to it as the town's facility. And the other response is, to call someone a proprietor doesn't mean that they're private. In this case, they're charging $81 -- or $86 a ton. Every ton that comes in, they make more money.
05-1345 +++$+++ 36780 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm sorry. At least as I read the Carbone opinion, it didn't deal with the public-private distinction. It seemed to assume it was a private entrepreneur. And it didn't take a position one way or another whether there would be a distinction.
05-1345 +++$+++ 36781 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think the Court affirmatively decided the issue. I think the distinction didn't matter to the majority. I think the majority is focusing on the consequences of putting up barriers to interstate commerce, of putting up embargoes and local processing requirements. And you could take almost any one of the Court's cases and just substitute in public ownership. Take, for example --
05-1345 +++$+++ 36782 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But not -- you know, you have a whole string of commercial products, but you have recognized, too, that garbage disposal has for long been considered a municipal responsibility, a municipal function. And you also say that the total, the -- what is it -- cradle to grave, if the county took over all of the garbage disposal business, the hauling from the garbage generator to the plant, and then there wouldn't be any commerce problem, right? But if it does something less, there is?
05-1345 +++$+++ 36783 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there were two questions embedded there. Let me see if I can take them in order. The idea that it is a traditional local function, I don't think can support any kind of meaningful test in this case. The Court has rejected that very - that very standard in Garcia and the Tenth Amendment cases, and prior to that in the intergovernmental tax immunity cases, and the reason it did so is it found that it was unworkable to try to determine what is a traditional government function in any particular case. The Court found that it was in a total line-drawing morass. And so it said we're throwing that out.
05-1345 +++$+++ 36784 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, there is still at least the obvious distinction, that one of the main purposes of the dormant Commerce Clause is to prevent protectionism. Protectionism is when a state favors its own producers. And you could see, indeed a big argument in Carbone was, you aren't favoring your own producer; well, we are at least favoring one. But now where the municipality is running it itself, no one is favored. So I don't think it was an object of the Commerce Clause to prevent a State from favoring its own government.
05-1345 +++$+++ 36785 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know whether the framers considered it but I do know --
05-1345 +++$+++ 36786 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it's about --
05-1345 +++$+++ 36787 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- protectionism wasn't the only thing that they were concerned about.
05-1345 +++$+++ 36788 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, is there something here that is not protection? Because Carbone was still perhaps viewing it most favorably, an extreme case of protection, only one individual was protected.
05-1345 +++$+++ 36789 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. First of all, what was being protected was this plan. The town had to fund its transfer station, a transfer station that it was going to take possession of less than two years after this Court decided the case. So the protectionism that was going on there was really protection of their investment in their scheme.
05-1345 +++$+++ 36790 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it was also protectionism -- I mean, I didn't agree with this at the time, but I mean there, it -- you have to admit that there was protectionism of the one licensee, the person who constructed the plant and was going to sell it to the town for a dollar. That, so far as we know, that person or that company was in it for the money. And so for the period of the five years prior to the transfer to the town for the dollar, that particular entity was being protected so it could make money, and therefore, make it worthwhile for that company to sell its, its real estate to the town for a dollar. Surely that entity was being protected handsomely.
05-1345 +++$+++ 36791 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it would be equally protected, Your Honor, if the government owned the facility but said you keep all the tipping fees until it's paid off and take a nice profit on top, too. This distinction --
05-1345 +++$+++ 36792 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's -- that's a third case but that's not the question we have here, is it?
05-1345 +++$+++ 36793 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the case you have here is are you going to adopt a new formalistic particular distinction between public and private ownership, when in the past this Court has concluded that a lot of these other distinctions were unworkable.
05-1345 +++$+++ 36794 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, so, you say formalistic as if it's a bad thing. But the, the distinction, say in the First Amendment, if the private contractor the day before the municipality bought the facility for a dollar had fired an employee because of his or her political views, you wouldn't argue that that is state action just because the next day it was going to be controlled by the public entity. And yet the next day, that type of action would be subject to First Amendment scrutiny. It may be a formalistic distinction but in many areas of the law it makes all the difference.
05-1345 +++$+++ 36795 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I just think you are going to be walking into so many line-drawing problems because if that example is one, are you going to require 100 percent public ownership, or a majority interest, 50-50? Once you go down this road, I think it is just opening up a huge can of worms when the focus ought to be what is the impact on interstate commerce? What we have here now that the landfill is up and running is an absolute embargo. No waste generated in this town, in these counties, excuse me, can leave the State, period, end of story. It is no different, in effect, it is no less likely to breed resentment and retaliation than --
05-1345 +++$+++ 36796 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It is kind of formalistic on the other side because you, I thought you agreed that if the municipality did it through tax revenues and there was no formal flow restriction and yet it only made sense to dump your waste at the free facility, you seem to suggest that would be okay.
05-1345 +++$+++ 36797 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'm glad you reminded me of that point. I meant to make it earlier. In West Lynn Creamery this Court said that these kind of things make a difference. There are certain ways you do things and certain ways you can't do things. If you place an embargo, that's traditionally been regarded as subject to strict scrutiny. If you try to do the same thing by making it free and providing public -- public -- public collection, that's okay. And -- and what the Court cases say is do it the right way and we'll worry about the consequences later.
05-1345 +++$+++ 36798 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Here, I take it the reason they want to do this is because they wanted their municipal facility to charge a higher price for the non-recyclable rubbish and that will encourage people to segregate the rubbish and thereby have more cyclable -- recyclable rubbish, and therefore overall pay less. And that's why they want to do it, and of course that's not going to work. If somebody comes in from out of State and charges a lower price for all of the non-recyclable rubbish or you know, for all rubbish, it just won't work. It is rather like electricity, interestingly enough, where municipalities would do the same thing. They want discriminatory rates in order to push out the possibility of poorer people getting electricity. This they want to do the same thing but they want to do it for rubbish, for, to encourage recycling.
05-1345 +++$+++ 36799 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Several answers to that, Justice Breyer. One, the same argument was made in Carbone. It doesn't matter who owns the facility. Two, this is an argument about why they might survive strict scrutiny, it's not a -- I know you don't like hearing about that -- but the question here is do we apply strict scrutiny or not. And that goes to the strength of their interest. And then of course the question turns on, can it be met in nondiscriminatory ways? The answer is "very well." Since Carbone was decided, the municipalities have been living with no flow control, virtually every one in the country, yet recycling has gone up in the, in that intervening period. Indeed the best way to accomplish recycling is to charge volume-based fees to, to the -- between the haulers and the, and the generators. That's not what is going on here. They're just charging it at the disposal point. So there are plenty of communities all -- excuse me -- plenty of communities all over the country that are charging what's known as a batch fee where you pay for each -- you pay -- you get a label, like you put on a bag; you can't dispose of the bag without the label, the label costs a certain amount of money. None of these people have flow -- none of these communities have flow control but there's a direct straightforward way. They can also impose regulations directly on the generators and directly on the haulers to make sure they're doing these things. So it is hardly a reason for creating a brand-new public-private distinction.
05-1345 +++$+++ 36800 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It sounds to me as though, if we accept your argument that, going back to Justice Breyer's first question, every municipal utility in the United States is going to fall.
05-1345 +++$+++ 36801 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well -- I'm not an expert on -- on that industry.
05-1345 +++$+++ 36802 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but you know, you know that there are plenty of, of communities that don't have municipal utilities and seem to get natural gas. They seem to get electricity. The lights go on. And therefore by parity of reasoning to what we have just heard, there just wouldn't be the justification for, let's say, embargoing the importation of electricity and gas by private entities from outside. So that if you win on this argument, no more municipal lifelines.
05-1345 +++$+++ 36803 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I didn't hear the last part.
05-1345 +++$+++ 36804 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No more municipal pipelines.
05-1345 +++$+++ 36805 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think they can have the plant. They just -- assuming that is --
05-1345 +++$+++ 36806 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, they'd like to run them as --
05-1345 +++$+++ 36807 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They'd like to have a monopoly, and --
05-1345 +++$+++ 36808 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- an exclusive monopoly, and in that sense they won't, they won't be around anymore because the Commerce Clause will, will declare them unconstitutional.
05-1345 +++$+++ 36809 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but that's excluding that -- as I understand it --
05-1345 +++$+++ 36810 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You would say that they can do it so long as they charge less than out of State people --
05-1345 +++$+++ 36811 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1345 +++$+++ 36812 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- and therefore people buy their services because they're cheaper. So long as they don't prohibit the importation, if they run the municipal facility on tax revenues, and therefore charge very little for the electricity or whatever they're providing, that's perfectly okay for you. Right?
05-1345 +++$+++ 36813 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
05-1345 +++$+++ 36814 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So long as they don't prohibit anybody from out of State.
05-1345 +++$+++ 36815 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1345 +++$+++ 36816 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then where does your argument about formalism go? Isn't it a formalistic distinction whether the utility does its financing through or its collection through taxes, or through a user fee? You said, you said distinctions on -- I thought you said distinctions like that were purely formalistic --
05-1345 +++$+++ 36817 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-1345 +++$+++ 36818 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- for purposes of the Commerce Clause, and therefore the distinction I suppose wouldn't count.
05-1345 +++$+++ 36819 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think what I was talking about, the public-private distinction, it is different in kind from saying there are certain kinds of conduct, some kinds of Government conduct that are permissible like a subsidy, for example, take your South-Central Timber versus Wunnicke case. The Court said in that opinion you can't impose contractually on the people who buy the timber the obligation to process it in the State; but what you can do is you can subsidize it, so they can't want to do it. So this is something that has --
05-1345 +++$+++ 36820 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There's some, then I guess you are saying some formalistic distinctions, some distinctions that don't make any difference economically but are formalistically different are okay.
05-1345 +++$+++ 36821 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'm not sure that one is completely formalistic. The Court said there, that gives people a choice. They can still take it out of the State if they want to, and they may have good reason to. Going back to the trash argument, the trash example, you could provide it for free; but a consumer might say, you know what, I'd like to have more days of pickup than you're providing me. Or I think their trucks of this private company are a lot nicer; I'd rather have a van stopping in front of my house than your beaten up municipal truck. So a case like Wunnicke establishes that that's the way it works. That it's okay to have alternatives. What you can't have is forcing people to do this through regulation.
05-1345 +++$+++ 36822 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I -- is there a distinction between the question Justice Breyer put to you, the hypothetical of a municipal electricity company, and this case? In this case you have private haulers, you have private waste dumps at the end, you just have a public, a publicly owned and mandated processing center in the middle. It would be as if in the electric case you have private electric companies that generate the power, private electric companies that distribute the power, but they all have to go through a Government-owned transformer at the key. It seems that's the case you have here.
05-1345 +++$+++ 36823 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. That's why --
05-1345 +++$+++ 36824 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you don't make that, that's not the argument you make.
05-1345 +++$+++ 36825 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would --
05-1345 +++$+++ 36826 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ At least that's not the way you answered Justice Breyer.
05-1345 +++$+++ 36827 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I like your answer better, Your Honor. (Laughter.)
05-1345 +++$+++ 36828 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But what, what I was trying to get back to was --
05-1345 +++$+++ 36829 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Like it --
05-1345 +++$+++ 36830 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But, but then, but then Justice Breyer is going to say well, you --
05-1345 +++$+++ 36831 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He'd changed the hypo.
05-1345 +++$+++ 36832 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that you, that you can bar it altogether but you can't regulate it just a little bit --
05-1345 +++$+++ 36833 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You can --
05-1345 +++$+++ 36834 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- actually is greater than the sum of it.
05-1345 +++$+++ 36835 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I actually point out that California, I think, wants to own the grid and privatize the rest of it. And there are -- I mean, it -- Justice Kennedy is totally right. There are all kinds of combinations and permutations. There, there could be distributors who are in fact regulated private companies and local distributors who are owned by the city, and I guess there, there is one generator, at least, company that's owned by the -- that's a -- TV -- with TVA. They, they make their own. So there are all kinds of permutations and combinations. And I think we're getting at, when we take that aspect of the permutation and combination and say that aspect of it which is owned by a Government says: "Our way or the highway." You know, that's what they say. "Buy from us." Period. And if you're in a certain region, I've always thought they could do that. And I have to admit I never really looked it up; I've just never came across a case that says to the contrary.
05-1345 +++$+++ 36836 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I, I haven't seen a case either way. It's my, my way of seeing this case law is that there's -- that the rule is simple: if you are doing something to interfere with the free flow of interstate commerce, you're subject to strict scrutiny. And maybe in that situation, maybe it survives strict scrutiny. I don't know that they would in this day and age, when getting, getting gas or other kinds of power to a commercial establishment, for example, is not very difficult and would not necessarily tear up the infrastructure, or whatever. I think they might --
05-1345 +++$+++ 36837 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What I guess we really don't know is whether Justice Breyer's parade of horribles are cases in which the municipality was able to provide the service more cheaply if it subsidized it, in which case there's no burden on commerce, or were they accompanied by prohibitions against competition, as Justice Scalia pointed out. I don't know.
05-1345 +++$+++ 36838 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it's hypothetical.
05-1345 +++$+++ 36839 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's a quite different assumption.
05-1345 +++$+++ 36840 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think his hypothetical assumed a ban. But I certainly agree with you, Justice Stevens, that if they do it simply by competing, then that's perfectly acceptable.
05-1345 +++$+++ 36841 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what is your authority for the proposition that we use strict scrutiny?
05-1345 +++$+++ 36842 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I draw it from the entire line of cases, from the local processing cases, the embargo cases, the local --
05-1345 +++$+++ 36843 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can you give me one case of it being strict scrutiny?
05-1345 +++$+++ 36844 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For?
05-1345 +++$+++ 36845 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, I just didn't realize that that phrase entered into our Commerce Clause jurisprudence. Correct me if I'm wrong.
05-1345 +++$+++ 36846 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I was using it as a synonym for the "virtually per se unconstitutional" rule.
05-1345 +++$+++ 36847 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That is to say, if it discriminates?
05-1345 +++$+++ 36848 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it discriminates, or some of the earlier cases didn't use the term --
05-1345 +++$+++ 36849 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But certainly on burden cases we don't require that.
05-1345 +++$+++ 36850 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, not the burden that we talk about in the price context. But in the earlier cases they referred, cases like Minnesota versus Barber and some of the other, earlier cases, refer to it as being burdens on commerce, but clearly what they meant was there are certain kinds of regulations, and I think it's easier to just categorize them, embargoes, local needs requirements, local processing requirements, things likes that, which basically so obstruct interstate commerce as to require the virtual per se rule. Indeed, Pike itself has that very statement. That's sort of the classic case in which you invoke that high level of scrutiny. If the Court has no further questions, I'd like to reserve the balance of my time.
05-1345 +++$+++ 36851 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, counsel. Mr. Cahill.
05-1345 +++$+++ 36853 +++$+++ FALSE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: No decision of this Court has held that public service is comparable to private enterprise for purposes of dormant Commerce Clause analysis. Here the only entity that benefits from these laws is the government itself.
05-1345 +++$+++ 36854 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All the local processing cases, would they have come other differently if those facilities -- the milk processing plant, the shrimp processing plant, and so forth -- had been publicly owned?
05-1345 +++$+++ 36855 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think, Your Honor, they would be different. In each of those cases the laws in question operated to protect a private entity or group of entities. In Dean Mills, for instance, it was a group of private milk pasteurizers within a five-mile radius of the town -- the city of Madison. In none of those cases was the government itself engaged in providing the service to the public.
05-1345 +++$+++ 36856 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it might be a good revenue device for the government to say, yeah, let's have our own pasteurizing plant, we'll make it a criminal offense for anybody to use a facility other than ours and we'll charge triple the price.
05-1345 +++$+++ 36857 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor.
05-1345 +++$+++ 36858 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's not a burden on interstate commerce?
05-1345 +++$+++ 36859 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That might be. In our case that is not the case here. What we use is a user fee. We have a limit. There's a limit to a user fee. We can --
05-1345 +++$+++ 36860 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose the user fee were ten times what it is?
05-1345 +++$+++ 36861 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We can only charge something that's reasonably related to the cost of what, of the service that we provide.
05-1345 +++$+++ 36862 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is that?
05-1345 +++$+++ 36863 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In Evansville Airport, Your Honor, this Court held that -- versus Delta Airlines -- that a user fee is constitutionally limited; there has to be a relationship between the cost of a service and the amount that's charged.
05-1345 +++$+++ 36864 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So don't call it a user fee. Call it something else.
05-1345 +++$+++ 36865 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if we --
05-1345 +++$+++ 36866 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Call it a tax ripoff. (Laughter.)
05-1345 +++$+++ 36867 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Then you can charge whatever you want, so long as you don't call it a user fee, right?
05-1345 +++$+++ 36868 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In New York, Your Honor, you either have to call it a user fee or a tax or something else.
05-1345 +++$+++ 36869 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Call it a cable TV franchise fee. I mean, isn't that the way municipalities used to make a lot of money? They charged outrageous amounts to give the cable franchise and then grant a monopoly in exchange.
05-1345 +++$+++ 36870 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know what cable franchises base their, base their amounts on. I do know that in our case the cost to tip a ton of waste is directly related to the value of the services that we provide to the public.
05-1345 +++$+++ 36871 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ To get back to the public-private distinction, what is the answer to Mr. Tager's point that that's difficult to -- what if you have a 50 percent publicly owned, 50 percent privately owned company? Is that covered by the Commerce Clause cases or not?
05-1345 +++$+++ 36872 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think that the -- they would not be -- it would not be unconstitutional under the Commerce Clause cases. I think that the distinction is that when government is actually in the transaction, when it's taking the risks, when it's spending public money, when it's providing a service directly to the people, it's a public, it's a public service.
05-1345 +++$+++ 36873 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But at the same -- exactly that -- that avoids the problem. At exactly the same time, it's protecting the private 50 percent interest. Why isn't the better answer that in fact that would be subject to Commerce Clause analysis and that would fall, that if the government wants to do this the government's going to do it the way the government's doing it in your case, it's going to be a 100 percent government. If it doesn't, it's protectionism.
05-1345 +++$+++ 36874 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I agree with you. We don't have 50 percent ownership. We don't have any private ownership anywhere. There are, however, government agencies in other contexts where there is a private partner. That's a case that isn't here today. But the question was what if there was, and I don't think the answer is automatic one way or the other.
05-1345 +++$+++ 36875 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You know, there's a general agreement throughout the world nowadays that sovereign immunity, which usually applies to governments, doesn't apply when the government is engaged in a commercial activity. Now, why shouldn't something similar apply to government regulation which ends up discriminating against out of State businesses, when the government is engaging in a commercial activity it is subject to the restrictions of the Commerce Clause? Why isn't that a reasonable rule?
05-1345 +++$+++ 36876 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it is a reasonable rule. But I don't think that we're engaging in commercial activity in this particular case. If we were to offer our services to citizens to whom we do not have a governmental responsibility, then I think we're entering into the realm of competition with the private sector.
05-1345 +++$+++ 36877 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I suppose any private entity can choose its market.
05-1345 +++$+++ 36878 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Pardon me, Your Honor?
05-1345 +++$+++ 36879 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I suppose any private entity can choose its market. You're a market participant. You're saying, we're going to serve this class of consumers. That's your privilege. But what you do is you have a market participation which is sanctioned by the criminal law. You've built this trash utopia where everybody sends wonderful trash and you enforce use of that by the criminal law. So you're engaging as a market participant, but you're taking an extra advantage by using the criminal law to enforce, to enforce its use.
05-1345 +++$+++ 36880 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I don't -- I agree with you that we're providing a service here, and we do use the law to require that haulers and generators participate in the service that we -- in the system that we've created. We need to have -- to achieve the goals that we're trying to achieve. We've asked our public to separate their wastes and we've asked our haulers to collect it in a way that's consistent with the programs that we've established.
05-1345 +++$+++ 36881 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You could do that by requiring all trash pickup to segregate recyclable and non-recyclable, and if it's going to cost each householder just as much trouble then there could be competition and you would have achieved your goal. No?
05-1345 +++$+++ 36882 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. There is no competition between our program and -- that's offered by the private sector. What we do is different than what the private sector offers and there's no place else for it to go. The haulers are required today to comply with the program and to coordinate their activities with the separation done by the residents and the facilities that the authority has putting to. We do things -- we have three different, three basic differences between what we do and what the private sector would do. The first one is to step in and take some of the risk for proper disposal. When the haulers make the decision about where the garbage goes, there's a liability that attaches to the waste. If it goes to the wrong place it's going to follow, follow back both to the hauler and to the person who generated it. We have had some bad experiences with people making bad decisions about where waste goes in the 1980s and the public asked us to set something up so that they could trust who was making the disposal decisions. So as a government we've stepped into that problem. We've stepped into the shoes of the generator, and we're trying to set up a place --
05-1345 +++$+++ 36883 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You could do that by law. You could do that by law. You could specify that only certain waste facilities can be used.
05-1345 +++$+++ 36884 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think not, Your Honor.
05-1345 +++$+++ 36885 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You don't have to run the business in order to assure that, do you?
05-1345 +++$+++ 36886 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think we do.
05-1345 +++$+++ 36887 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why?
05-1345 +++$+++ 36888 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because we don't have the power as a local government in New York to talk to landfills in Ohio or Pennsylvania about how they should run their facilities. The only way that we can be sure that it goes to the right place, that's engineered the right way and built the right way and run the right way is to offer to do it ourselves. And that's what we've --
05-1345 +++$+++ 36889 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But none of that -- in answer to my earlier question, I thought you said none of that really matters, right? The only thing that matters is that this is a publicly owned facility. You could be selling hamburgers or renting videos and it would come out the same way.
05-1345 +++$+++ 36890 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think why public ownership matters is that it's not discriminatory. I think the strict scrutiny test should not apply when government owns --
05-1345 +++$+++ 36891 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So your answer is yes?
05-1345 +++$+++ 36892 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-1345 +++$+++ 36893 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It doesn't matter? Hamburgers are just as good?
05-1345 +++$+++ 36894 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, hamburgers, Your Honor, if the government was going to be the sole purveyor of hamburgers in a community, I think they'd have to have a very, very good reason. If they had such a good reason, then yes, government could do that.
05-1345 +++$+++ 36895 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, that's just a question of New York law, isn't it?
05-1345 +++$+++ 36896 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of --
05-1345 +++$+++ 36897 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't know, I don't know what municipalities can do in New York. You say they've got to have a good reason. I assume you're referring to New York law for that purpose.
05-1345 +++$+++ 36898 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I am not, Your Honor. I have no idea --
05-1345 +++$+++ 36899 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What are you referring to, then?
05-1345 +++$+++ 36900 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The concept, the concept that government might be, might find it necessary to get into the hamburger business. I can't --
05-1345 +++$+++ 36901 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Then essentially it's just a political check on it. When you say there's got to be a good reason, politically people would get mad if you didn't have a good reason; is that basically it?
05-1345 +++$+++ 36902 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's one reason. It would also --
05-1345 +++$+++ 36903 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But there's no Commerce Clause reason?
05-1345 +++$+++ 36904 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think there's no Commerce Clause reason.
05-1345 +++$+++ 36905 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
05-1345 +++$+++ 36906 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think there's no Commerce Clause reason.
05-1345 +++$+++ 36907 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Cahill, you started to tell us three reasons why it was important that you regulate. You gave us one. Mention the other two.
05-1345 +++$+++ 36908 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The other two are, Your Honor, that we are fulfilling national objectives in trying to establish the system that reduces the amount of waste that we generate and recycles as much as possible. That's not necessarily something that the private sector would do. A landfill is not built to discourage the amount of waste that comes through it. Our system is designed to try to change the habits of our citizens and increase recycling --
05-1345 +++$+++ 36909 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but it's basic Commerce Clause analysis that a State has no interest in what happens to the product out of State. Baldwin versus Seelig.
05-1345 +++$+++ 36910 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think --
05-1345 +++$+++ 36911 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You can't say we want -- we're enacting this law to affect what happens in other States. That's just contrary to the Commerce Clause.
05-1345 +++$+++ 36912 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We are not attempting to regulate what goes on in other States. We are attempting --
05-1345 +++$+++ 36913 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I thought that was just the answer you gave to Justice Stevens on your point two.
05-1345 +++$+++ 36914 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We are attempting to protect our own citizens by reducing the liabilities that they may incur if that waste is shipped anywhere outside of the counties. We hope to give them a better solution for disposal than they would get from the marketplace. To the extent that liability crosses state lines, we are trying to protect our citizens from that liability --
05-1345 +++$+++ 36915 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Whether they want the protection or not?
05-1345 +++$+++ 36916 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-1345 +++$+++ 36917 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And whether a private individual can come and offer them the same protection for less money or not?
05-1345 +++$+++ 36918 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, that's true.
05-1345 +++$+++ 36919 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ We're the government and we're here to help you?
05-1345 +++$+++ 36920 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-1345 +++$+++ 36921 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But isn't that almost a fourth point? I realize you didn't get the third point out yet. But isn't -- I remember your brief and isn't there sort of a fourth point? And that is, I will assume that the government does have some basic health and safety objectives and the objective to protect its citizens here.
05-1345 +++$+++ 36922 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-1345 +++$+++ 36923 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If the government tries to pursue these policies solely by private inducement, trash haulers may say, we don't want to deal on those terms, we can haul somewhere else, in another county, another State, what-not. By taking on the job itself, the government in effect is guaranteeing that to the extent it can protect its citizens, induce respect for environmental policy, and so on, it will do so without any cessation of service? There's kind of an assurance of service plus the objectives that the government gets by running the plant itself. And isn't that sort of the nub of all of your points?
05-1345 +++$+++ 36924 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, that's true. That is the essence of government. We are there and we are going to have to stay there. Whether -- where a private entity might decide to go out of business tomorrow, government is going to be there to continue to do what we set out to do. But this leads me also to my third point, which is that we're attempting to implement a comprehensive solid waste plan. With the passage of Federal legislation on these environmental matters touching on waste in the 1970s, with the Resource Conservation and Recovery Act, and With the Comprehensive Environmental Response and Liability Act, there was a new message sent to the country, which to generators meant, you better think about what you're doing with this stuff. You better make a -- you better watch where it goes and you better be careful because liability could attach to you. And RCRA told government, States and localities, it was their responsibility to come up with plans to find new ways to manage solid wastes. That's what we've done. Any time a government comes together to put a plan together to dispose of solid wastes, whether like ours it uses several different technologies to try to address different parts of the waste stream, you have to have the cooperation of the people who collect the waste. If the people who collect the waste could drive its away to anywhere they please, the plan is no plan; the plan is just a suggestion. The haulers --
05-1345 +++$+++ 36925 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Who mandated this plan? The State of New York?
05-1345 +++$+++ 36926 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The State of New York.
05-1345 +++$+++ 36927 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the State of New York can't mandate what happens to interstate commerce.
05-1345 +++$+++ 36928 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, it cannot.
05-1345 +++$+++ 36929 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you say the Congress of the United States has authorized discrimination against interstate commerce, then of course it can do that. That has happened.
05-1345 +++$+++ 36930 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is not our position, Your Honor. We're not saying that RCRA or any of these statutes authorize discrimination against interstate commerce. What the Federal statutes did do, however, was recognize that the states do have the sovereign power to act, and they expected the states to act in this way.
05-1345 +++$+++ 36931 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Let's take one of these classic discrimination cases involving milk. I think what you're telling us is that if Wisconsin adopted a law requiring all milk to be pasteurized at a facility owned and operated by the State of Wisconsin, that would be perfectly okay.
05-1345 +++$+++ 36932 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would not discriminate against interstate commerce.
05-1345 +++$+++ 36933 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's right. And it would really advantage Wisconsin dairy farmers, wouldn't it, and really disadvantage out of Wisconsin dairy farmers, and you think that the Commerce Clause doesn't speak to that.
05-1345 +++$+++ 36934 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I do think the Commerce Clause speaks to it, Your Honor, but I just -- our position is it just doesn't require strict scrutiny. I think the Pike test is a very good test to get to the bottom of why Wisconsin would want to do such a thing, and it would also be a good test to show just what the adverse impact on interstate commerce was, and what precisely the benefits of, to Wisconsin there might be. I think the Pike test --
05-1345 +++$+++ 36935 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So then, the Commerce Clause would become the vehicle by which we would develop federal law about what's appropriate for municipal governments to do and what's not appropriate? We could decide it may be appropriate to run waste facilities but not to run milk pasteurization. I don't know how we would do that.
05-1345 +++$+++ 36936 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know how you would do that either, Your Honor, but you would be led into that by accepting the petitioner's argument that public services and private sector services are comparable under the Commerce Clause. To go back to your example, earlier, Justice Scalia --
05-1345 +++$+++ 36937 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, if we accepted that argument, we would treat the public services just like we treat, you know, the legislation favoring private companies. You're the one that's arguing for special treatment based on public ownership.
05-1345 +++$+++ 36938 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think we are not, Your Honor. I think public ownership and public services are unique and they're different, and they should be subject to Commerce Clause scrutiny, but not --
05-1345 +++$+++ 36939 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But the whole point is these are not unique. The whole point is there are private companies that provide these kinds of services. Maybe water, maybe electricity, maybe those are or are not unique. But you can't say that this is a unique service being provided by government.
05-1345 +++$+++ 36940 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the approach that Oneida-Herkimer has taken is in fact unique. It is tailored to our local situation. It's not something that the marketplace would provide if the government was not there. And if the Petitioner's idea that any government service could be challenged under the dormant Commerce Clause simply because there's a private entity out there that says they could do the same thing were accepted, the definition of discrimination would be changed from differential treatment of economic interests to differential treatment of government or economic interests. And whether we use the taxing power or police power to support a public enterprise, it would be subject to challenge.
05-1345 +++$+++ 36941 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the challenge here isn't gauging this business, the question is whether you can require everybody in the area to go through the one facility and pay a tipping fee.
05-1345 +++$+++ 36942 +++$+++ TRUE +++$+++ MR. CAHILL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I would like to close, I think, because I'm running out of time, with just the admonition or requirement that we are, in providing a public service, still subject to the Constitution and we must deal with the part private sector fairly. But if we do deal with the private sector fairly and we don't favor anyone in state or anyone out of state, we should be judged under the balancing test of Pike, so that the Court, if the court below found the benefits of our system substantially outweigh any incidental burdens that are placed on it by commerce, placed on commerce by the system. Thank you.
05-1345 +++$+++ 36943 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Cahill. Ms. Halligan.
05-1345 +++$+++ 36945 +++$+++ FALSE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: As you suggested, Justice Breyer, the theory that petitioners would have the Court adopt here is in fact a novel one. What they are suggesting is that there is discrimination sufficient to trigger near fatal scrutiny every time the government takes over, to the exclusion of all private actors both in state and out of state, a government service, that that is sufficient to trigger strict scrutiny. That is completely inconsistent with the way that this Court has defined what constitutes discrimination for purposes of the dormant Commerce Clause. The Court has said, and it has stressed repeatedly in its precedent, that discrimination is the differential treatment of in state and out of State economic interests, not government interests, in a way that benefits the former and burdens the latter. That's from Oregon Waste System.
05-1345 +++$+++ 36946 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me ask you a sort of simple question. Is there an interstate impact on, of a municipal rule whether it is milk, or garbage, or what, that says all of this product must be processed within this city before it can go out of State?
05-1345 +++$+++ 36947 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There may well be an interstate impact.
05-1345 +++$+++ 36948 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Doesn't that have a burden on interstate commerce?
05-1345 +++$+++ 36949 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It may well, and that is something that is appropriately judged under the Pike standard.
05-1345 +++$+++ 36950 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't that exactly what we have here?
05-1345 +++$+++ 36951 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that you do have that here, and you should judge it under the Pike valency test, not under the near fatal scrutiny that's, that's --
05-1345 +++$+++ 36952 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But Pike doesn't apply to discrimination. Pike applies to burdens.
05-1345 +++$+++ 36953 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. And where you have --
05-1345 +++$+++ 36954 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems you are conflating the two.
05-1345 +++$+++ 36955 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Respectfully, I disagree, Your Honor. Where you have the government taking over a service entirely, that doesn't constitute discrimination because there is no local private interest that is advantaged, and no burden that is shifted to out of state interest. That is where the dormant Commerce Clause is primarily --
05-1345 +++$+++ 36956 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So long as the government enters the commercial market, it can, it can create Fortress California?
05-1345 +++$+++ 36957 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We're not asking for a rule that broad, Your Honor. What we are suggesting is that where you have a publicly owned operation, a government operation, and it does not disproportionately benefit in state or local interests, as against out of state interests -- But it always does. It benefits the people of the State, who make the money from the money from the, from the very expensive hamburgers that are sold by the State of California.
05-1345 +++$+++ 36958 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If --
05-1345 +++$+++ 36959 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It always benefits the State of California.
05-1345 +++$+++ 36960 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-1345 +++$+++ 36961 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And you're saying so long as it doesn't benefit one particular malefactor of great wealth in the State of California, it is okay.
05-1345 +++$+++ 36962 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor --
05-1345 +++$+++ 36963 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't see the distinction as far as the harm to the national market is concerned.
05-1345 +++$+++ 36964 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you were to have government action, for example, someone suggested could the government sell hamburgers. I believe Justice Alito suggested that, and that was to operate to the disadvantage of out of state interests, even if it only advantaged one in state interest, we would agree that that would be appropriate for treatment under strict scrutiny. But that's not what you have here. What both the district court and the circuit court in fact found here is that the primary burden of these local ordnances in fact is on local residents. And so the political process check that this Court has found critical in cases like Minnesota versus Cloverleaf and Wunnicke is very much precedent here. This is not an attractive proposition that these localities have entered into.
05-1345 +++$+++ 36965 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What would you do with Justice Alito's question? Dean Milk versus Madison: All milk must be processed whether been 20 miles of where it's --
05-1345 +++$+++ 36966 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's --
05-1345 +++$+++ 36967 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- produced.
05-1345 +++$+++ 36968 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-1345 +++$+++ 36969 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Held discriminatory against interstate commerce. Could -- under your view, could your city require all milk be pasteurized within your city at a government owned, city owned facility?
05-1345 +++$+++ 36970 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If that rule imposed no disproportionate benefits on out of state --
05-1345 +++$+++ 36971 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but Justice Scalia says it always does because it benefits the locality.
05-1345 +++$+++ 36972 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's different if it benefits --
05-1345 +++$+++ 36973 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You have -- by criminal laws --
05-1345 +++$+++ 36974 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You -- I'm sorry. We're looking at the interstate aspect from the wrong point of view. I'm a home owner. I have two choices. I either send it to the local facility or I can ship it over to New Jersey. You're telling me I can't ship it to New Jersey. Doesn't that burden an interstate transaction?
05-1345 +++$+++ 36975 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This is very different from those kinds of export bans. Those export bans did one of two things.
05-1345 +++$+++ 36976 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is an export ban.
05-1345 +++$+++ 36977 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The export bans that this Court has struck down either created local --
05-1345 +++$+++ 36978 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your case involves an expert ban. All the trash has to be processed in your tipping facility.
05-1345 +++$+++ 36979 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does, and it does, and to the extent that's what you are characterizing as an export ban, that's certainly correct. What the Court has found problematic about export bans are either that they are put in place to create local to correct economic opportunities, for example the timber cases or the shrimp cases. That's not what you have here. There's no allegation that the purposes of these statutes is to foster or promote local industry. In fact, the only plaintiffs in this case are local haulers themselves.
05-1345 +++$+++ 36980 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, there is an allegation that you charge above market rates to pursue particular economic goals that the municipality has.
05-1345 +++$+++ 36981 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For a different basket of services, Your Honor. A basket of services that includes a wider range of, of goals that the private sector has no Interest in providing. To return, to return to the question of whether or not this is an inappropriate benefit for the citizens, I would argue that there is a meaningful distinction between government taking an action which benefits the citizens as a whole, which we would hope any government law would -- any law passed by a government would do, as opposed to a law that benefits a local private economic interest and is intended to do so. For the dormant Commerce Clause to reach that far would be unprecedented. It would implicate not only electricity but under Petitioner's theory it would implicate, I would think for example government decisions to provide prison and correctional services through a public system as opposed to a private one. What about school bus services? Car insurance --
05-1345 +++$+++ 36982 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If only facilities on your side of the case that are traditional municipal services, but then this seems to be at the borderline. I mean, on the other side, they have the hamburger cases or the milk processing cases. How do we decide whether this is one of the traditional governmental services, the police, the prisons, whatever, or is it one of these that looks more like regular market participation?
05-1345 +++$+++ 36983 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Two answers if I can, Your Honor. First of all, I think this Court has answered that question with respect to waste management more than a hundred years ago in the California Reduction case. It was clearly held there the provision of waste management services is an essential function that governments appropriately provide. So that's been answered here. With respect to this question about hamburgers and other services that look commercial, I think there are two checks on those kinds of ordinances. First of all, I think it is very likely that in most circumstances if you were to say that hamburgers will be sold at a government operated facility, that that would disadvantage local interests significantly, and there would be a political process check. Secondly the Court has been clear that it is not bound by formalistic distinctions in the Commerce Clause arena and so it will look for discrimination that is protectionist in nature whether it is, as the Court has said, forthright or ingenious. So if case were to present itself, and the facts in the facts in this case no whiff of that protectionism, where you were to believe that the motive of a government entity was, in fact, to favor some local private interest, then strict scrutiny might be appropriate.
05-1345 +++$+++ 36984 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that what it turns on, the motive? If the motive were to keep the jobs at the plant in New York, rather than in some facility outside of New York, that would be, that would make a difference?
05-1345 +++$+++ 36985 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I think this Court has held the purpose alone cannot cure an inappropriate means that is used. But what we are arguing is that here you have both a very legitimate purpose, as my co-counsel outlined for you; you also have appropriate means. It is not inappropriate under the dormant Commerce Clause for the government to step in and take over provision of a service. Petitioners themselves agree that, in fact, the government could take over waste management services from soup to nuts. They suggest that there is some difference of a constitutional magnitude because some aspect of that is contracted out to the private market, and would argue that actually turns the dominant Commerce Clause on its head. One final point, if I could make. Several of you asked about whether or not there are other mechanisms that the localities could use to further these goals, goals which are set forth in both Federal and State laws. First of all, under the Pike test, there is no least restrictive alternative test. So it is not required that the localities demonstrate that there is no other option that might meet these goals. The Second Circuit concluded and rightly so I think on page 20a of the appendix to the petition that there was no other option that presented itself in the record that the counties could address, or could use to address their liability concerns and to encourage recycling across a very wide range of products.
05-1345 +++$+++ 36986 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There is no determinative element in the Pike test whatever. It is a totality of the circumstances test, right?
05-1345 +++$+++ 36987 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-1345 +++$+++ 36988 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's wonderful. (Laughter.)
05-1345 +++$+++ 36989 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And we suggest that that is the appropriate test here.
05-1345 +++$+++ 36990 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Ms. Halligan, how do you answer something in the Petitioner's brief that says there's no difference between this case and Carbone because these transfer stations are constructed and operated by a private company?
05-1345 +++$+++ 36991 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that that distinction is essential here. It is essential because of the purposes of the dormant Commerce Clause. These are publicly owned facilities. The facility in Carbone was privately owned and as you suggested, Justice Ginsburg, the opinion is replete with careful references to that.
05-1345 +++$+++ 36992 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Where do you, where do you come out on the 50-50 facility?
05-1345 +++$+++ 36993 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's a hard question, Your Honor. And I think there the kind of approach that the Court took in a case like Westland Creamery and Hunt versus Washington Apple is helpful. If it appears to the Court that the motive is protectionist then it is appropriate to apply strict scrutiny. Whether that line is 50 percent, 55 percent --
05-1345 +++$+++ 36994 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I thought you said earlier motive was not the test, in response to I think it was Justice Alito.
05-1345 +++$+++ 36995 +++$+++ TRUE +++$+++ MS. HALLIGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. I'm saying you should look as you have -- and I see my time is up. If I may continue -- you should look as you have, in all of the dormant Commerce Clause cases at the context that is presented. So if there is 100 --
05-1345 +++$+++ 36996 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you. Thank you, Counsel. Mr. Tager you have three minutes remaining.
05-1345 +++$+++ 36998 +++$+++ FALSE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. The first point I'd like to make is I'd like to ask the Court to review Reeves versus Stake which is a market participant case. But what is significant there -- that's the cement plant case -- there's two significant things about that case which I think are of interest. First, the Court's footnote 1 is an interesting historical footnote about how South Dakota had elected to make a lot of these different industries state-run industries, so the hypotheticals we've been discussing are not completely off the wall. If you can do it for waste you can do it for, in that case coal. They wanted to do it for stockyards but I think the legislature rejected the government's proposal. So the hypos are right on point. Secondly, the Court made a point there in rejecting the argument, the constitutional argument that the state was not prohibiting competing cement companies. And I think the inference from that is that it had, there would have been a Commerce Clause problem. Second, Mr. Cahill's user -- user fee point. I just want to remind the Court that in addition to paying for the recycling and everything, they were using the user fee to pay off the bond for their failed energy recovery facility. So, if you start focusing on what you use it for, it is a very slippery slope. On his point about protecting the generator from liability, we've addressed that at great lengths in our briefs. But one other point I want to make is he's wrong about their ability to determine whether other facilities that the haulers want to use are safe for environmental purposes. That's exactly what the city of New York does. Because it doesn't have its own disposal facility, its got very stringent requirements for where the waste can be taken. Fourth, Justice Souter, I believe you were raising an inquiry about the political process and whether that's adequate to protect the out of State interests. And I'd like to refer you to the West Lynn Creamery decision where the Court said the people whose oxen are being gored by a tariff are the local residents as well, but a tariff is the prototypical Commerce Clause violation. The political process is simply not a good answer to our argument. In terms of your other question about --
05-1345 +++$+++ 36999 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ A tariff is also imposed by a State, isn't it? As opposed to --
05-1345 +++$+++ 37000 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1345 +++$+++ 37001 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Money goes to a State.
05-1345 +++$+++ 37002 +++$+++ TRUE +++$+++ MR. TAGER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would go to a State. I suppose it could be done by a subdivision, though. On Ms. Halligan's point about California Reduction, I just would like to remind the Court that that was a case of flow control to a private company. So Carbone, to the extent that case was concerned at all with the Commerce Clause, and it didn't say that it was, it was a taking case, I think, it has been overruled to the extent it had any Commerce Clause implications. Finally, I would like end with the point that Carbone has been the law for 13 years -- may I finish? If the Respondents have a problem with Carbone, Congress can fix it. That's one of the unique things about the Commerce Clause that is different from other constitutional provisions.
05-1345 +++$+++ 37003 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
05-1382 +++$+++ 37007 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++  +++$+++ Now we'll hear argument in 05-1382, Gonzales versus Planned Parenthood Federation of America. General Clement.
05-1382 +++$+++ 37009 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice and may it please the Court: This case presents the same basic constitutional question concerning the Federal Partial-Birth Abortion Act as the first case. Of course, the Ninth Circuit in the decision under review here went much further in invalidating the Federal act. If I could begin by talking about whether what we're talking about here is medical necessity or just some marginal effect on the risks. I think in order to fairly understand the argument that respondents are making in this case, their argument has to be a matter of simply marginal risks, because one illustration of this, as I indicated in the first argument, if a doctor really believes that a D&X procedure is the way to go in a case then there's no ban on the procedure as such. What the act bans is the infliction of the D&X procedure on a living fetus. So if a doctor really thinks the D&X procedure is the way to go, he can induce fetal demise at the outset of the procedure.
05-1382 +++$+++ 37010 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the problem with this is that there -- well, some doctors absolutely agree. I mean, you know, my list over here, in which I have hundreds of references from this thing, is doctor after doctor who takes the other position, and they say: Look, all that we're doing here is trying to remove the fetus in a single pass. The fetus is going to die anyway. It's not viable. We're trying to remove it in a single pass, and the reason we're trying to do that is if we don't, there may be bone fragments left inside the womb. There may be fetal parts left inside the womb. Every time you make another pass, it turns out there's an added risk of scarring or hurting the inside of the womb. If you try to induce demise through a drug before, there is serious risks of introducing drugs into the system. If the woman has uterine cancer, it's a serious problem of not trying to get the child out as quickly as possible. If you have preeclampsia or eclampsia, where you're in a situation where the woman will be dead in five minutes or 10 minutes, there could be such a situation. The doctor thinks only one thing: Get it out as fast as possible. All right. Now, I know there are doctors who think the contrary. There's lots of testimony of the doctors who think roughly along the lines I've taken. That was true in Stenberg as well. So I think the issue is not that you don't have support -- you do -- but that the support is contraverted, and therefore, what do we do in that case?
05-1382 +++$+++ 37011 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Breyer, let me take as a point of departure the specific risks that you associated with the injection that induces fetal demise, because if there isn't a significant risk to that injection, then all the other benefits that are associated with the D&X procedure don't matter because they can perform the D&X procedure. Now if you look through the record on this point, I think you will not find any testimony that supports a significant risk from that injection. Yes, there are risks because there are risks from any medical procedure, but the risks are not significant.
05-1382 +++$+++ 37012 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Is there a definition in the law of significant risk, other than doctors saying, I've been trained to try to save life and I want to perform the safest possible way? Is there some legal definition of what's a small risk, a big risk, a giant risk?
05-1382 +++$+++ 37013 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With all respect, I think if a single injection that doesn't take any particular risk other than the fact that it's an injection, if that counts as a significant risk, then we might as well strike the word "significant" from the discussion in Stenberg. And Then I think what you have is that it's very clear that their position is one of zero tolerance for any marginal risk to maternal health.
05-1382 +++$+++ 37014 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, my question is the same as Justice Breyer's. Is there anything in the literature, including medical literature, that talks about significant or minor risks? I mean, you fill out forms when you go to the dentist about risks. Now, if -- if the chance of death is one out of 100, is that significant? I mean, I don't know.
05-1382 +++$+++ 37015 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's a very difficult question to evaluate in the abstract, Justice Kennedy. And I think it actually, that question, though, has direct bearing on this case, because Congress after all found that there was some risks with the D&X procedure. The most prominent one that I would point to is the risk of cervical incompetence because the D&X procedure does -- it does require additional dilation, which can be associated with risks of losing future pregnancies. And that was born out, although not at a level of statistical significance, in the Chasen study by a plaintiff practitioner, where 2 of the 17 women who had the D&X procedure and were available for follow-up care had an early pre-term pregnancy in the follow-up. So I think those risks are born out in the only study that's available. And I think the question becomes, now, if D&X were some life-saving procedure for something that there was no other known cure for, you might think, well, those are the risks you run. But when there remains available the D&E procedure, which has been well tested and works every single time as a way to terminate the pregnancy, then I think risks that, if you were talking about a life-saving treatment for some life-threatening condition with no known cure, those risks might not be significant in that context.
05-1382 +++$+++ 37016 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but there is a risk if the uterine wall is compromised by cancer or some forms of preeclampsia and it's very thin, there's a risk of being punctured.
05-1382 +++$+++ 37017 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is a risk, Justice Kennedy, but I think that, first of all, that even in those limited circumstances, that the marginal risk between the D&X procedure and the D&E procedure are really as far as I can tell nonexistent. Even in that condition, unless there's some reason not to put the injection in, if the doctor really thought the D&X procedure was the way to go, he could begin, as Dr. Carhart does in every single case after the 17th week and start off with a digoxin injection or potassium chloride injection, induce fetal demise, and he has nothing to worry about from this statute. And I think the very fact that they are attributing significant risks to a single injection shows that at bottom their position is a zero tolerance position. And that's a legitimate position, I suppose, but it's completely inconsistent with this Court's precedence, most notably the Casey decision. Because if all you needed to do is point to some marginal risk, then this Court should have struck down the 24-hour waiting period in the Casey decision, because the plaintiffs there said the 24-hour waiting condition has imposed significant risks. They were backed in that point by an amicus brief by ACOG. But this Court didn't say, well, you know, you're right, there's marginal risks, we're going to apply a zero tolerance rule. This Court instead upheld the 24-hour period, even though it required overruling Akron I's contrary decision and this Court pointed, of course, to Akron I as an exemplar of the pre-Casey decisions that put too little weight on the legitimate countervailing interest that the government has in this area. And so with respect, I think that the argument they are making is effectively an argument for returning to Akron I and Thornburgh, where the rule of law was that there would be no interference between a doctor and the doctor's patient and the doctor's best judgment as to how to treat the patient. This Court of course consciously moved away from that in Casey and expressly repudiated the language in Akron I and Thornburgh to that effect.
05-1382 +++$+++ 37018 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ May I follow up on a question the Chief Justice asked you during the last argument? We got into the government's construction of the statute to narrow it to intentional situations. Would you explain a little more exactly what situations you would exclude and what you would include in your interpretation of the statute?
05-1382 +++$+++ 37019 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, justice Stevens, let me answer it this way and maybe if you want me to take you specifically to the text, I can do that. But I think the bottom line would be that under our view of the statute, the most important thing is for those doctors, like Dr. Cranen or Dr. Vivicar, who try to do the D&E procedure every time, and they succeed 99 or 100 percent of the time. Well, in the 1 percent of the cases where they inadvertently deliver the fetus past the anatomical landmark, we would say they are not covered by the statute because they would not satisfy what is really a compound mens rea requirement in the statute, which requires that the delivery of the fetus be intentional and deliberate and for the purpose of committing the overt act of killing fetus. And in those cases, of course, the intent of the doctor performing the D&E isn't to deliver the fetus at all; it's to deliver a fetal arm or a fetal leg as part of the dismemberment procedure. So they would not be covered by the mens rea requirement of the statute.
05-1382 +++$+++ 37020 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Would you measure the mens rea at the outset of the procedure when they begin the dilation a day or two before the actual operation is performed, or is it at the time of beginning the operation?
05-1382 +++$+++ 37021 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think you could measure it from either time point. I think the better view is actually that it would be measured from the beginning of the surgical operation, though the evidence of their intent at the beginning of the dilation would be very, very relevant. The reason I would say that is I think if somebody tries to dilate and then gets an extreme amount of dilation at the point they start the procedure, I think the intent of Congress would still be for them to do a dismemberment procedure at that point, rather than an intact removal. But if this Court thought that the constitutional line mattered on the answer to that, then you could start from the beginning of the dilation because I think in fairness the differences between the two procedures are probably most manifest in the dilation regimen. I also think, though, the record supports the notion that there are differences even once you begin the procedure as to how you manipulate the fetus. I mean, Dr. Chasen for example, who is trying to do the intact removal, says that after he has one leg removed he effectively tries to reach back up and swing the second leg across so he can remove the entire fetal body. If you're -- obviously if you're performing a dismemberment D&E you're not trying to swing the second leg across; you're simply continuing to pull or twist on the first extremity that prevents itself. So I think there are differences even at the procedural level. So I think that it would probably be most consistent with Congress's intent to measure it from the beginning of the surgical part of the procedure. But if you, as I say, in order to save the statute, I think it's amenable to the contrary interpretatio.
05-1382 +++$+++ 37022 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think you're wrong about -- you're probably wrong about this. But just before you leave, I mean, this is why it's so hard for me to get into the medical procedure. I heard you as saying, perhaps wrongly, that well, the doctor can always use a lethal injection to kill the fetus. All right? That rang a bell. So I look up and see what the lower courts said about that and what they said is that nearly everyone agrees it is not always possible to kill the fetus by injection.
05-1382 +++$+++ 37023 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, but can I respond to that specifically?
05-1382 +++$+++ 37024 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He says It is not always possible -- what?
05-1382 +++$+++ 37025 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Can I respond to that specifically?
05-1382 +++$+++ 37026 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, he then goes; he tells you why. He says there is a Dr. Knorr who says you can't do it when the woman has a prior surgery, pelvic inflammatory disease. And then another one says they are not considered appropriate candidates because of medical illness or cardiovascular disease, etcetera. So there's a list of medical situations where they couldn't use a fetal injection.
05-1382 +++$+++ 37027 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, if I could respond to that.
05-1382 +++$+++ 37028 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1382 +++$+++ 37029 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I mean, there are certain situations where the injection is contraindicated. I think they'd be relatively rare situations. And I think, you know, you could imagine I suppose that the statute might pose a problem if you could identify particular conditions where a D&X was particularly useful, and those were also situations where an injection would be contraindicated. I think, you know, the universe of that may be zero, it may be one in a million; I don't know, but it's very small. Another point that's made in the record which I think is important is they suggest well, you know, maybe, maybe if you can't do the injection into the heart of the fetus, then you're only going to be successful something like 92 percent of the times. I think though for purposes of the mens rea requirement would certainly take care of any concern that the physician would have --
05-1382 +++$+++ 37030 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's bothering me, why I'm using this as an illustration is that there are so many of these things. Of course there are special cases. We are only talking about a few, rare special cases. And as soon as you tell me that what's supposed to happen is that the judges are supposed to start deciding whether this is one of these unusual cases or not, rather than relying upon significant medical opinion, as this doctor is now illustrating, I don't see how it's going to work. At least I don't see how it's going to work without some people suffering serious illness as a result of mistakes by the judge.
05-1382 +++$+++ 37031 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, I wish we were talking about just a few rare cases because I think if we were, there would be, the statute would be amenable to not being applied in those rare cases. But this is one thing that I think my colleagues on the other side of the podium will agree with me on, is that their doctors don't think that this is a safer procedure in rare cases. They think it's a safer procedure every single time. And that's why doctors like Dr. Chasen and Dr. Frederickson try to do the D&X procedure every single time, and they don't do it because they are indifferent to health, I suppose. In their best judgment they think that's the better way to go. And it's just a question ultimately of whether you're going to defer to individual doctors' judgments, even when it's very much of a minority judgment; I mean anything you want to say about this procedure it is the heterodox procedure, not the orthodoxy. Most ob-gyns are going to do the D&E procedure, not the D&X procedure. Even in the Nebraska case three of the four plaintiffs don't try to do the intact removal, so I think that just gives you, just a, know you, anecdotal observation that you are talking about the rare procedure, the heterodox procedure. And so the question is when you have a perfectly safe alternative, and you have some doctors who like to do is it a different way, can Congress countermand the doctors' judgment or do the doctors get the final word?
05-1382 +++$+++ 37032 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Suppose the doctor has the intent, the good faith intent to perform a standard in utero D&E, and he knows because of what's happened in the last three months, with women with this particular shaped fetus and particular position of the fetus, that the chances are 50 percent, 60 percent that it's going to be an intact delivery, at which point he is presented with the problem. Does he have the prohibitive intent? Because aren't you, don't you have an intent to commit the, most likely consequences of your acts?
05-1382 +++$+++ 37033 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so. I mean that might be a situation -- I don't know that that's a realistic hypothetical, I mean, let me just say that. If that turned out to be a realistic hypothetical, that might be an example of where this question I talked about with Justice Stevens might matter. Which is in that case it might matter whether or not the intent was measured --
05-1382 +++$+++ 37034 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's important to me because you seem to think that there is a standard D&E. In reading the medical testimony it seemed to me that D&Es ought to result in result in intact deliveries quite without the intent of the doctor. Now maybe that's wrong.
05-1382 +++$+++ 37035 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect, Justice Kennedy, I don't think that's born out in this record, it's the other way, which is doctors who want to perform a D&X, often, in a majority of the cases end up performing a D&E. But the doctors that set out to perform a D&E, in Dr. Vibhakar's case she says a hundred percent of the time, she ends up with dismemberment. Dr. Creinen says it's 99% of the time that he ends up with dismemberment.
05-1382 +++$+++ 37036 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I gather your submission is that we can tell who is setting out to perform which, by the dilation protocol. Those were the record references that you gave earlier?
05-1382 +++$+++ 37037 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. And you can, you can, you can tell you can tell from the fact that a doctor, like one of the plaintiffs in the Nebraska case, Dr. Fitzhugh, says, that, well, I don't do the intact removal because if I wanted to do that I would have to do a second round of dilation with a second round of laminarias. And of course, that second round of laminaria is also a medical procedure. Like the injection, every medical procedure has some risks, risks of infection. If you looked at Dr. Creinen's testimony, this is at 174 A to 177 A in the Eighth Circuit petition appendix, he says that he doesn't like to do a second round of laminaria dilation because it's painful to the patient. And that's his testimony. So there are countervailing indications here. And as I say, this idea of trying to prohibit a practice that involves further dilation is not an irrelevant concern from a health standpoint, because one of the things that Congress heard was that there were risks to future pregnancies from cervical incompetence. And that's a particularly important concern because first of all, the plaintiff's experts aren't in a very good position to evaluate that risk because they provide abortion services, not follow-up services. So they're not in a good position to judge that risk. Second of all, the only study we have here points out that there is a greater incidence of that preterm delivery in the group that had a D&X procedure. Now again they say, they are going to come up and say well it's not statistically significant. But the numbers I think are striking. They had 17 women in the group that had a D&X and came back. Two of them had a preterm pregnancy. The D&E group was much larger, 45, and two of them had a preterm delivery. Now I think as a commonsense manner, if you know that you were going to be in a room with 17 people where two people were going to have something bad happen to them, or in a room with 45 and two -- bad things were going to happen to two, I know which room I'd like to be in. And all I'm pointing out --
05-1382 +++$+++ 37038 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, once you're making a point of that study, I think it was also the case that the ones that had the intact were older or rather further along in pregnancy; isn't that true?
05-1382 +++$+++ 37039 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
05-1382 +++$+++ 37040 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Therefore the risks were greater.
05-1382 +++$+++ 37041 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well if I could just --
05-1382 +++$+++ 37042 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And therefore since the risks were greater, the other side says that this actually shows it was safer. I mean, I don't know how to evaluate that.
05-1382 +++$+++ 37043 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it's even more complicated than that, Justice Breyer, because in fact, you're right that the D&X patients were at a further gestational age, but the D&E patients were actually older. And so I think --
05-1382 +++$+++ 37044 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I missed that.
05-1382 +++$+++ 37045 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. But it happens that, the D&E patients were on average two years older, which I think also would be associated with greater risk. So I think it's a wash. But I still think the Chasen study net is quite helpful to our side. For one thing, this is a study put together by one of the plaintiff practitioners, a plaintiff in the Southern District case, based on a study of his own practice. And of course one of the intuitions about the D&X procedure is because you remove it intact it's going to be a faster procedure and there is going to be less blood loss.
05-1382 +++$+++ 37046 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ General Clement --
05-1382 +++$+++ 37047 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what did he find when he studied that? It was exactly the same for those two procedures. I'm sorry.
05-1382 +++$+++ 37048 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because your time is running out I did want to ask you about a feature of this legislation that hasn't come up so far, and that is perhaps stimulated by Stenberg. But up until now, all regulation on access to abortion has been state regulation and this measure is saying to the states, like it or not, the Federal Government is going to ban a particular practice and we are going to take away the choice from the states, in an area where up until now it's, it's been open to the states to make those decisions. How should that weigh in this case? And it is something new.
05-1382 +++$+++ 37049 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I mean I don't think it should figure in this Court's decision. I mean principally because the other side in neither case makes a challenge based on the Commerce Clause, and I suppose there is two reasons for that. That legal reason that they don't bring the challenge is because there is a jurisdictional element that I think would address the challenges as a doctrinal matter. The practical reason I think is because this isn't the only instance in which the Federal Government has gotten involved to address issues related to the abortion context.
05-1382 +++$+++ 37050 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well I know, when it is a question of funding --
05-1382 +++$+++ 37051 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well but also access to clinics, in the the face act, which is also --
05-1382 +++$+++ 37052 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The bes example where government has gotten involved in overriding what the states want to do is Casey. It seems rather odd for this Court to be concerned about stepping on the toes of the states.
05-1382 +++$+++ 37053 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well -- it's certainly true that abortion has been dealt with at a Federal level one way or another since 1973. So I think that's also part of the backdrop, but I also think, I mean, you know, the Federal Government gets involved in this issue, you know, depending on your perspective, for good or for harm. It's there to protect access to the abortion clinics --
05-1382 +++$+++ 37054 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ General Clement, That brings up a question I was intending to ask you. I notice the finding says nothing about interstate commerce but the statute says any physician who in or affecting interstate commerce performs the procedures. Does that mean that the procedure is performed in a free clinic, as opposed to a profit organization, it would not be covered?
05-1382 +++$+++ 37055 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, I don't think we have taken, the Federal Government hasn't taken a definitive position on that. I think it could be interpreted either way. I think my understanding is the face context, a free clinic would be covered. There's not a jurisdictional element in the face statute. So there may be differences as, in application.
05-1382 +++$+++ 37056 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But how could the Commerce Clause justify application to a free clinic? I don't understand.
05-1382 +++$+++ 37057 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think by, I mean, you know, the Court's precedents in other areas has suggested it's just not a matter of whether the ultimate service is provided in commerce but in order to get the services they have to take --
05-1382 +++$+++ 37058 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Activities that --
05-1382 +++$+++ 37059 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Exactly. I don't, I mean, that hasn't been briefed up in this case. If it had been we'd probably have a definitive position one way or another. But I don't think the constitutionality in this facial challenge where that hasn't been a feature of the challenge turns on the answer to that question one way or another. I think in regards to the Chasen study the last thing I would say about it though is that it's important because most of the arguments on the other side are intuitive arguments. They are intuitive arguments, that they would be less passive, so that will be more safe. And what I think is telling is that the same intuition would lead to the notion that it would be quicker and there will be less blood loss. And when that was actually tested in a controlled study, it turned out not to be the case. The last thing I'll say about the Chasen study is there was this indication that the two most serious complications were associated with the D&E procedure. But one thing that I think is important to understand about the Chasen study is it is a retrospective study of Dr. Chasen and his partner's own practice. Now what they do in every case is they set out to perform a D&X procedure, and so what they are studying and what they call the D&X procedures, that cohort are the times when they tried to do a D&X procedure and they were successful. The D&X cohort from this study, is you know, are those circumstances where he and his partner tried to do a D&X procedure, weren't successful and did a D&E procedure. Now why is that significant? Because it shows as Chasen noted in his article that in those situations that were D&Es and they were associated with serious complications there was nothing he could have done about it. He could have performed a D&X, he tried to perform a D&X and it wasn't successful, so he ended up performing a D&E. And so I really think on balance the Chasen study ends up supporting our position, because the first time you have any kind of controlled study what you find is that some of the intuition turns out not to be true, and the safety benefits from these are a wash, and the one sort of loose end from the study is the threat that you do see from the greater dilation. Now it's not statistically robust, but I think that it does bear out one of Congress's concerns.
05-1382 +++$+++ 37060 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Could you address the question I asked respondent's counsel in the last case about the availability of other facilities? Because there are alternate methods but some of these require hospitalization, and my understanding is the hospitals aren't always open.
05-1382 +++$+++ 37061 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, I -- I --
05-1382 +++$+++ 37062 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So it doesn't make much sense to say well, there is an alternate procedure if you can't be admitted to the facility.
05-1382 +++$+++ 37063 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure. And as I tried to indicate in rebuttal, that's really not a concern because, the difference is whether some clinics will only offer the D&X and the D&E and will say that basically you've got to go to a hospital to get the induction procedure. But that doesn't really, I don't think matter, because the point is anybody could can got a D&X who is at a clinic can also get a D&E. In every single case the doctor that can perform the D&X can also offer the D&E. And since the D&E is what the district court in the Nebraska case described as the gold standard of Casey, I think every woman in every case is going to have that option of a safe, of a safe pregnancy option. And again one way to illustrate that is Chasen.
05-1382 +++$+++ 37064 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But then you pin your whole case on the availability of D&E even though D&Es sometimes inadvertently turn into intact D&Es.
05-1382 +++$+++ 37065 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but, Justice Kennedy, I think we have our answer to that, which is the best reading of the statute requires the intent at the outset of the procedure, and therefore nobody -- in the 99 percent of the cases that Dr. Crainer sets out to performs a D&E and succeeds, there's no issue in the world because everybody would look at that and say that's a D&E. In the one case --
05-1382 +++$+++ 37066 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ How do you do that, because I looked at that part of the statute and, comparing it with the statute in Cathcart, the relevant part forbid a doctor from doing this for the purpose of performing an abortion that the doctor knows will kill the fetus. That's the language basically, right. And in this one it says you can't deliver past the fetal trunk for the purpose of performing an overt act that the doctor knows will kill the fetus. So I look at those two sets of words. I mean, I've simplified them slightly, but I don't see the difference. So if the one in Cathcart is viewed as too vague, why is the other one here not too vague?
05-1382 +++$+++ 37067 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Breyer, it's because of the addition of the anatomical landmark language to the Federal statute.
05-1382 +++$+++ 37068 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'll grant you that in respect -- if what Cathcart was worried about I guess was you didn't know what the words "significant substantial portion of the child," that tends to be cured. But if what Cathcart was worried about was the fact that a doctor who sets out to perform a D&E will, making a pass, think he'll have the fetus dismembered and, lo and behold, it doesn't dismember, so the bottom portion of the fetus descends outside the womb. And there he is and now what happens? If that's the concern, then I guess you'd agree that that same concern exists here.
05-1382 +++$+++ 37069 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, only with the caveat, though, is that I think this Court really didn't have to confront the second concern because it had the first concern. And if you thought that a leg, which this Court did, was a substantial portion, and that was the, that was the act that induced fetal demise, either way it was covered no matter what your purpose was, because the doctor's purpose in removing the leg was to induce fetal demise. Here the compound mens rea requirement works with the anatomical landmark language, so that what you need to satisfy the statute is the deliberate and purposeful intent to remove the fetus past the navel with the purpose of performing an overt act that will, will lead to fetal demise, which is not covered when you don't even have the intent to take it out of the -- past the anatomical landmark in the first place and you're trying to do something that's going to take place in utero. If I could reserve the balance of my time for rebuttal.
05-1382 +++$+++ 37070 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, General Clement. Miss Gartner.
05-1382 +++$+++ 37072 +++$+++ FALSE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice and may it please the Court: In Casey, this Court reaffirmed that the government cannot ban pre-viability abortions. Despite Casey, Stenberg suggested that there is a narrow category of pre-viability abortions, intact D&Es, as this Court understood that term in Stenberg, that can be banned so long as the ban contains a health exception. But I'd like to leave the health exception question aside for a minute and turn to the scope of the law that Congress has enacted here. The question is whether Congress can enact a pre-viability abortion ban that does not track the hallmark of intact D&E abortions as this Court understood that term in Stenberg and by doing so to ban a substantially greater array of abortions than would be banned had the law faithfully tracked the language in the Stenberg opinions about what constitutes an intact D&E. And I'm referring both to the majority opinion in Stenberg and in the dissents. It is our position that this Court must reject Congress's effort to exploit the limited license that this Court seemingly granted in Stenberg because to allow such an expansion of pre- viability abortions that can be banned would set the stage for continued legislative efforts to ban other iterations of the classic D&E method of abortion until truly there would be nothing left at all of Casey's holding that it is unconstitutional to ban pre- viability second trimester abortions. The government in this case has conceded that the act bans more abortions than merely the intact D&E as this Court understood it in Stenberg. But I want to highlight for the Court how the language of this act departs from the hallmarks of intact D&E and how these departures place doctors at risk of prosecution for the very facet of D&E abortions, and by that I mean all D&E abortions, that enhance their safety. There is three respects in which the act departs from the hallmarks of intact D&E as understood in Stenberg. First, the act does not require breach extraction of an intact fetus to the head, one of the primary hallmarks that this Court understood in Stenberg. Instead, the act applies once the fetus is extracted past the navel, a far more frequent occurrence than extraction to the head. And in fact the government in its briefing both in their initial brief and in their reply concedes that in any of what the government calls standard D&Es a living fetus can be extracted past the fetal navel before demise occurs. In addition, the act does not require the fetus to be delivered intact at the end of the procedure, another component of what is considered to be a hallmark of intact D&E in Stenberg. In fact, the word intact appears nowhere in the statute and again the government concedes that some non-intact D&Es would violate this law as drafted. In fact, the government contends that one of the "advantages," in its words, is that the law would ban more than intact D&E. And finally, the act does not require that the fetus be extracted in a breach presentation at all, even though in Stenberg the Court thought of the breach extraction as one of the hallmarks of intact D&E. Now this --
05-1382 +++$+++ 37073 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Do you -- I think this question was asked earlier, but I want your position. How often does the vertex delivery occur in a D&X procedure? I --
05-1382 +++$+++ 37074 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, two, two doctors in particular, Dr. Chasen and Dr. Hammond, testified that they have used in their practice the vertex presentation to treat women who, as Ms. Smith indicated, the fetus suffered from a serious lethal anomaly that involved a greatly distended abdomen. The fetus presented in a head-first presentation. The head delivered through the dilated cervix, but the only way to complete the procedure was to reduce the size of the, of the abdomen that was, that was anomalous in size because of the underlying fetal condition. In those cases, those doctors testified that that was absolutely the safest way to terminate the pregnancy for the woman. The only alternative way would have been abdominal surgery, which, which all the, virtually all of the doctors, even the government's doctors, agreed carries far greater risks for the woman than a vaginal surgical abortion.
05-1382 +++$+++ 37075 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Miss Gartner, with regard to your argument that the statute here did not track what you have described as the characteristics, the hallmarks, I think the answer from the other side is that the, the theory of this statute is a theory of a clear line between a legitimate abortion and infanticide. And if that is the theory, then whether it's a breach delivery or a non-breach delivery is irrelevant. What would your answer be to that?
05-1382 +++$+++ 37076 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, two answers, Your Honor. First of all, the clear line that this Court drew in Stenberg was essentially the line at intact delivery to the head followed by an act that results in fetal demise. Very clearly what this Court understood in Stenberg could -- was, was an intact D&E and several members of the court suggested that that would be constitutional to ban. In addition, the government today seems to suggest --
05-1382 +++$+++ 37077 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we said that that would be an appropriate line. But the question here is is it really essential to an appropriate line that we talk, that we describe it as a, as a breach delivery or a non-breach delivery.
05-1382 +++$+++ 37078 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I would agree that of the three hallmarks that the Court recognized in Stenberg, the breach delivery is probably the least, the least central; that the other two hallmarks, the extraction to the head followed by a completely intact delivery after demise, were absolutely the hallmarks that everyone on this Court understood in Stenberg, and those, those lines, are nowhere in the statute that Congress enacted. Today General Clement seems to be arguing that there is a different line that's protected in this statute, a different line than the Court recognized in Stenberg, and the line is about where the fetus is when demise occurs. But, but this Court in Stenberg understood that even in a classical D&E, a standard D&E, as the government calls it, part of the fetus is outside the woman's uterus when fetal demise occurs. The Court recognized that fetal demise occurs even in a standard D&E when, after a part of the fetus is drawn out of the women's uterus, resistance is met, disarticulation occurs, and after that fetal demise. So even in a standard D&E the line that the government today is offering up, the line of inside or outside the uterus, would be violated in any D&E --
05-1382 +++$+++ 37079 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understood the statute here to apply only when the, in the words of the statute, that the partially delivered infant is killed after passing the anatomical landmark.
05-1382 +++$+++ 37080 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's right, Your Honor.
05-1382 +++$+++ 37081 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So we just say your hypothetical about extraction of the leg it seems to be would not be covered by the statute.
05-1382 +++$+++ 37082 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Your Honor, that's right. But what I'm saying is that some part of the fetus, no matter what, is outside the women's uterus, whether it's an intact D&E, a non-intact D&E --
05-1382 +++$+++ 37083 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But we don't talk about a leg dying. We talk about the fetus dying, I think, and I think that's not the leg.
05-1382 +++$+++ 37084 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the important point is that the government acknowledges that in a standard D&E, what it calls standard D&Es, the fetus can be extracted past the anatomical landmark. So the anatomical landmark isn't a bright-line decision between intact D&Es and non-intact D&Es. But in Stenberg this Court drew that line between intact D&Es and non-intact D&Es. It suggested --
05-1382 +++$+++ 37085 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Where does the government concede that in a standard D&E the living fetus is extracted past the anatomical landmark?
05-1382 +++$+++ 37086 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does so --
05-1382 +++$+++ 37087 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I thought that was -- I thought their position was that that was not the standard D&E.
05-1382 +++$+++ 37088 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. It does so in two places, Your Honor. On page 32 of their initial brief they refer to, they describe two circumstances that they say or two parts of the law that they say saved the law from banning non- intact D&Es. The first is the anatomical landmark and the second is the requirement of an overt act. They describe the overt act as saving non-intact D&Es that were not already excluded from the anatomical landmark requirement. So that suggests that there are some standard D&Es that would not be saved by the anatomical landmark requirement. In addition, in their reply brief on page 22 they explicitly say that the fetus is usually not delivered past the anatomic landmark in the standard D&E, but they don't say that that never occurs. So they do admit that that sometimes is the case, and in fact the government witness, doctor --
05-1382 +++$+++ 37089 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I thought their answer on that was that sometimes the D&E procedure will lead to a D&X procedure, but that the requirement of deliberately and intentionally removes those situations from the scope of the statute.
05-1382 +++$+++ 37090 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that's not how I understood it, Your Honor. But in addition, the government witnesses, witness, Dr. Sadigian, admitted that in any standard D&E the fetus can be extracted past the navel, the anatomic landmark of the navel, of the naval, even in a standard.
05-1382 +++$+++ 37091 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Prior to demise?
05-1382 +++$+++ 37092 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Your Honor.
05-1382 +++$+++ 37093 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Did you understand the government's argument or answer to that to be, well, if the intent did not exist, if there was not an intent to do that, then the doctor is not liable?
05-1382 +++$+++ 37094 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think this gets to the point I was going to make about the safety of doing abortions in a way that would be banned by the law, and that's that in every D&E, regardless of whether the intent is to do an intact D&E or not an intact D&E, the intent is to minimize the insertion of instruments into the uterus and to extract the fetus as intact as possible, because each insertion of the instruments increases the risk of causing harm to the woman's uterus. And so in every D&E, regardless of whether the physician expects to have an intact fetus at the very end of the procedure, they do want to minimize the -- the amount of instrumentation and bring it out in as few parts as possible and so there is a deliberate and intentional delivery of the fetus as far as possible which often can be past the navel, though in most cases it won't be up to the head. So that's why the line that this Court drew in Stenberg is the line that first of all delineates between two distinct procedures: intact D&E and nonintact D&E. The difference between those two procedures is whether the fetus is extracted to the head or not to the head before demise occurs. This, this statute doesn't draw that line. It draws a different line and in doing that, it captures far more abortions than the other law would and, and the key thing is that if this law stands with the past the navel line the inevitable result is that doctors in order to try to avoid the reach of this statute will have to stop trying to minimize the instrumentation and stop trying to draw the fetus out as intact as possible because often when that happens --
05-1382 +++$+++ 37095 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My concern with your argument is it's not just the anatomical line. The statute, I guess the Solicitor General referred to this as the multiple mens rea requirement. It's not simply the extraction to a particular anatomical landmark but with the purpose of demise at that point. So, if in the typical D&E the demise is going to be accomplished before extraction passed the anatomical landmark. It wouldn't be covered by this law.
05-1382 +++$+++ 37096 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I guess to some extent it comes down to what intent means but if what it means that the doctors would prefer, would like it to come out as far as possible before they have to take any, any kind of action to clear an obstructing part, that's, that's what they intend. The doctor only uses disarticulation when it's necessary to clear an obstruction because the continued extraction --
05-1382 +++$+++ 37097 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What about the Solicitor General's reference with respect to the differing protocols on dilation which suggests a different intent going into the procedure for the D&E and D&X?
05-1382 +++$+++ 37098 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, two points, Your Honor. One is the statute makes no mention of dilation protocols even though some group like the American College of Obstetricians and Gynecologists when they intend to define an intact D&E abortion they've defined it specifically by reference to dilation protocols. And some state statutes have also used dilation protocols as part of the definition of intact D&E but this statute makes no mention of dilation protocols.
05-1382 +++$+++ 37099 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but the dilation protocol certainly would be relevant on the question of intent which this statute does refer to, wouldn't it?
05-1382 +++$+++ 37100 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it would be relevant, Your Honor, but I think it's not -- it really can't be dispositive of the physician's intent be --
05-1382 +++$+++ 37101 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because?
05-1382 +++$+++ 37102 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Some doctors use a one day protocol, some doctors use a two day protocol but that in of itself isn't --
05-1382 +++$+++ 37103 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But you're telling us that some do this and some do that and the question is why wouldn't following one protocol rather than another protocol very significant evidence of what was intended?
05-1382 +++$+++ 37104 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because some doctors use a two day protocol, Your Honor, even if they don't expect to get an intact D&E. There is not a direct correlation, there's some correlation between the amount of dilation and the percentage of times that a physician achieves intact D&E. To some extent doctors also use other agents to dilate, they use misoprostol and medication. That even if they're doing a one day protocol --
05-1382 +++$+++ 37105 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Do we have any indication in your case about the effective safety of any other aspect of this procedure if these doctors would change their, their method of operation and go to a one-day protocol?
05-1382 +++$+++ 37106 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In terms, one-day protocol?
05-1382 +++$+++ 37107 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-1382 +++$+++ 37108 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Some doctors -- I think one thing is that doctors perform abortions most safely when they do them in a way that they are most accustomed do. They are doing them the way they were trained to do them.
05-1382 +++$+++ 37109 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't want to cut your answer but I want to know whether there is anything specifically in the record in your case that bears on my question.
05-1382 +++$+++ 37110 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is nothing specific about doctors changing protocols. There is significant evidence about increased risks if doctors were to stop trying to extract the fetus as intact as possible. Several witnesses, including several government witnesses have agreed.
05-1382 +++$+++ 37111 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Do you mean start and stop with a different intent?
05-1382 +++$+++ 37112 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Your Honor.
05-1382 +++$+++ 37113 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As opposed to adopting a completely different procedure entirely -- a different protocol entirely.
05-1382 +++$+++ 37114 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, no actually even the other government witness, Dr. Cook, agreed that -- and the other government witness, Dr. Lockwood, agreed that removing the fetus as intact as possible in any D&E is the safest way to perform a D&E procedure regardless of whether the intent was to do an intact D&E procedure.
05-1382 +++$+++ 37115 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For such a doctor, a doctor who thinks that I'm trying to remove in this emergency situation as much of the fetus as possible as quickly as possible, would such a doctor often, never, sometimes be thinking what I think is likely to happen here, I'll make a pass at the fetus, try to draw it out, and what's most likely to happen is that the trunk, a lot of it will come out and then the head of the fetus will dismember, after a lot of the trunk comes out. Is that --
05-1382 +++$+++ 37116 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would say it certainly is not never and it's not always. It's somewhere in between but I think --
05-1382 +++$+++ 37117 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So if a doctor is being honest about that, is there any way that such a doctor could escape the language of the statute on the government's interpretation?
05-1382 +++$+++ 37118 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think not Your Honor because the intent is to extract the fetus as intact as possible. In a good many cases it will be extracted past the navel though not to the head. So the doctor falls within the deliberately and intentionally language and I don't think, the government also proffers the idea of specific intent, but again because this statute doesn't track the actual differences between the two procedures, the having the specific intent doesn't save the statute. The doctor may intend to perform the abortion as defined in this law but not intend to do an intact D&E and that was the testimony in these cases.
05-1382 +++$+++ 37119 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Would you clear up one thing for me? You say it's always the doctor's intent to extract as much as possible before causing fetal demise. I thought there was significant number of cases in which there was a deliberate decision to cause fetal demise before I start any extraction?
05-1382 +++$+++ 37120 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor there is testimony in our case, in the California case, that a few doctors that testified said the beginning at approximately 22 weeks of pregnancy, they offered women the option of undergoing a fetal demise injection before the procedure began. But the testimony was also overwhelming, including from the government witnesses, that that injection procedure carries significant risks for some women. For example, women with either susceptibility to infection, like women with HIV or hepatitis, you definitely don't want to do an additional injection. That in addition --
05-1382 +++$+++ 37121 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ From the point of view of the doctor it would be the safest thing to avoid criminal responsibility.
05-1382 +++$+++ 37122 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- but the problem is as the district court, found it's an unnecessary medical procedure that subjects the woman to additional risk. Now if the doctors --
05-1382 +++$+++ 37123 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Why would the doctors in that case propose that option to their patients?
05-1382 +++$+++ 37124 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At 22 weeks and later, as the abortion is getting closer to the viability line, the doctors feel that some women would feel more -- it's for psychological reasons for the woman. That's why it's an offer; it's not a requirement.
05-1382 +++$+++ 37125 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, what -- what are the psychological reasons?
05-1382 +++$+++ 37126 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If she would prefer that the fetus undergo demise before the extraction begins, some women may feel better about that. The testimony was also that other women absolutely don't want that. And you know, feel that they -- you know, it's a very personal question that really goes to the heart of this case. It's a very personal decision how the woman who has made this very difficult moral/religious decision to end her pregnancy, often for very tragic reasons, how does she want the fetus to undergo demise? Different people will have different views about this. But here Congress has legislated that for the woman and done so pre-viability, when the state interests really are insufficient to require the woman to undergo a procedure that is not marginally safer but significantly safer for her.
05-1382 +++$+++ 37127 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well is there a difference between, in your view, in the constitutionality, marginally safer and significantly safer? In other words, I take it we don't, you obviously were here for the discussion in the prior case. We don't have evidence on marginal significant. And do you think it matters; if in fact it's a marginal difference in safety, does that, is that still enough to override Congress's interests in this case?
05-1382 +++$+++ 37128 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, it does matter. Marginal safety would not be enough but I think what is important is that you assess, you assess the question of marginal versus significant by looking at the averted harms. It's not a question of quantifying how many women would avert the harms.
05-1382 +++$+++ 37129 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, do we just look at the averted harms, or -- or do we, or Congress, also look at the incidence of the averted harms? Is it a theoretical -- is it a theoretical inquiry or is it to some extent a quantified inquiry?
05-1382 +++$+++ 37130 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think it can't be a quantified, quantified inquiry. Ultimately this Court has never looked at the constitutional question of when an abortion statute interferes with a woman's health to an extent that it's unconstitutional, in terms of how many women are affected. The question is, is how seriously would a woman be affected if she affected? And the evidence here is overwhelming.
05-1382 +++$+++ 37131 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Doesn't the answer to my question turn largely on the age of the fetus? Isn't it a vast difference between the kind of decision the mother that is to make if it's a 14 week fetus on the one hand and 26 week fetus on the other?
05-1382 +++$+++ 37132 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm not sure if that's.
05-1382 +++$+++ 37133 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For example, one of the congressional interests described in the finding is avoiding fetal pain to the fetus. And I guess they don't suffer any pain prior to 20 weeks but after 20 weeks there is some risk of pain. And that seems to me, that could affect a calculus very dramatically for the woman making the decision.
05-1382 +++$+++ 37134 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For the woman, but I think the important point, Your Honor, is that this, that the intact D&E procedure, and the testimony was overwhelming to this effect, that -- in some cases this procedure averts catastrophic health consequences for the woman. It averts uterine perforation, it averts the spread of sepsis or infection; it averts the spread of -- potentially the spread of malignant cancer throughout the women's body.
05-1382 +++$+++ 37135 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If -- if the woman can take into account the impact on the fetus at a certain point in time, and your option, as you said some physicians give, of fetal demise prior to the procedure, why is that beyond the scope of things that Congress can take into account?
05-1382 +++$+++ 37136 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because what Congress has done here is take away from women the option of what may be the safest procedure for her. This Court has never recognized a state interest that was sufficient to trump the woman's interest in her health. If the woman and her doctor together agree that proceeding in this way is going to avert significant health risks to her, and the testimony here is overwhelming that there are situations where that occurs, this Court has never recognized a state interest that was sufficient to trump that woman's paramount interest in her health.
05-1382 +++$+++ 37137 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but we have -- we have said that that judgment has to reflect some kind of substantial medical judgment. It can't be an idiosyncratic determination by one doctor alone.
05-1382 +++$+++ 37138 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Justice Souter.
05-1382 +++$+++ 37139 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So to that extent --
05-1382 +++$+++ 37140 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that's -- and I take that -- and maybe that was my -- and I take this as a given here. Given the overwhelming testimony from doctors from the American College of Obstetricians and Gynecologists, and this Court's holding in Stenberg, where the record was less robust, that we have that substantial medical authority here. And given that substantial medical authority, doctors need to be able to use their appropriate medical judgment, in the words of Roe and Casey, to provide this procedure for their patients when in their judgment -- not in their unfettered discretion, but in their sound clinical experience and medical judgment it's going to be the safest for her and avert catastrophic health consequences. So this is -- again, it may be that the number of women is not large, but for the women who are affected the impact of this ban is undoubtedly significant.
05-1382 +++$+++ 37141 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't want to misinterpret the Attorney General, the Solicitor General's remarks but he indicated in those case there could be an as applied challenge.
05-1382 +++$+++ 37142 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think, Justice Kennedy, you answered that question as well as I could. If a woman had to wait until she needed a banned abortion for her health, and file a proceeding wait for the court to grant relief, undoubtedly she would not get the relief she needed in time.
05-1382 +++$+++ 37143 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the answer that the Solicitor gave -- General gave to that was, you could have a pre-enforcement proceeding. That you can back up the clock.
05-1382 +++$+++ 37144 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. I'm not sure that I actually understood his answers though, because I think that that's what we have here, in fact, is a pre-enforcement proceeding to, to determine that this law blanketly banned intact D&E abortions even when the doctor believes it's, it would have significant health benefits for the patient. So this is not, I want to go back to, because my light is on, Stenberg suggested that there was a line that could constitutionally be drawn between banned, between permissibly banned procedures and, and procedures that have constitutional protection. But the statute didn't draw the line and it didn't draw that line in two ways. This, this statute defiantly rejected this Court's view that because there is substantial medical authority for the proposition that intact D&E is sometimes safer, a health exception is absolutely needed here, and they also refused to draw the line at what this Court understood was the defining difference between intact D&E and nonintact D&E. In the Solicitor General's reply brief they talk about the promise of Stenberg. Well, the promise of Stenberg was absolutely betrayed by Congress in this case in both respects, both in terms of preserving the health of the woman and allowing her to use what a substantial medical authority thinks is the safest procedure for the woman, and in terms of holding the line at a limited ban on pre-viability abortions given that Casey recognized that women have a constitutional right to choose to end their pregnancy pre-viability. I was going to address briefly some of the concerns that the Solicitor General offered about some of the health risks of intact D&E and cervical incompetence. Just briefly. The, all of the government witnesses in this case agreed that the congressional findings completely overstate any risks of intact -- there is no, there is no reasonable basis to conclude that intact D&E puts a woman at any greater risk of harm than standard D&E, and in fact the evidence is quite to the contrary. It averts catastrophic health consequences in some circumstances. There is no strong evidence that intact D&E has any impact on cervical incompetence. The Solicitor General talks at length about the two cases in Dr. Jason's study, but both of those women who experienced cervical incompetence had, in future pregnancy, had had cervical incompetence in prior pregnancies, and that's a condition that tends to stay with the woman. So there is no reason to think that it was the intact D&E itself that caused cervical incompetence in the subsequent pregnancies because of intact D&E. And finally, yes, it's true that Dr. Chasen used intact D&E or attempted to use intact D&E in all cases, and the women who had D&Es, three of them suffered very serious medical consequences after having a D&E. The Solicitor General says well, Dr. Chasen tried to do intact and he failed so, so there was really nothing to say about this law. But the fact is, if this law went into effect, no woman could have intact D&E. So even though, even in those cases where Dr. Chasen was able to do intact D&E, he would no longer be able to do that. So the incidence of those women having catastrophic health consequences, which in the Chasen study, three of the women having D&Es had catastrophic health consequences. Inevitably if this law is upheld, an intact D&E is not available as an option to doctors when in their judgment based on substantial medical authority, it's the best option for the woman. Inevitably there will be more and more women having D&Es and suffering catastrophic health consequences in situations where if intact D&E had been available, those catastrophic consequences could have been averted.
05-1382 +++$+++ 37145 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Ms. Gartner.
05-1382 +++$+++ 37146 +++$+++ TRUE +++$+++ MS. GARTNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you for your consideration, Your Honor.
05-1382 +++$+++ 37147 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ General Clement, you have three minutes remaining.
05-1382 +++$+++ 37149 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: A few final points. First of all, I don't think the constitutionality of Congress's act depends on whether the anatomical landmark is the navel or up to the head. Congress, as everyone recognizes, had to draw a line. I think drawing the line at more than halfway out is a pretty good place to draw the line. Second, my learned co-counsel is certainly correct. This is a pre-enforcement challenge, in response to your question, Justice Kennedy. But the point is, this is a pre-enforcement spatial challenge, and if the Court rejects it and allows this statute to go into operation, it will not foreclose the possibility of a future pre-enforcement as applied challenge that focuses on particular medical conditions. That's not something, though, that one can reach in this record, because as the district court in this case found at 147a, there is no specific condition here in which the D&X procedure is particularly ready met for or otherwise is medically necessary. Rather, the claims in this case are that it's always better. That's what some doctors say. It's a heterodox position, it's not the majority position, but it's not focussed on specific situations. The other thing it's not focused on, and this is in reference to something that Justice Breyer mentioned, it's not focused on emergencies. Another thing that the district court noted at page 128a of its opinion is that the D&E procedure and the D&X procedure, neither of them are particularly good in dealing with true medical emergencies where time is of the essence, because both these procedures require substantial advance time to do the dilation. And since the D&X procedure requires more dilation, I actually think in an emergency, you'd probably end up performing the D&E procedure if you performed either one, because you'd need less time for the dilation in an emergency. The other thing I should point out is that, of course, there is this question about what's a significant risk. And one thing about the lethal injection at the beginning of the process, the Digoxin injection, is the other side concedes that the mother gets to make the choice as to whether or not to do that procedure. Well, Dr. Carhart does it as a matter of course after 17 weeks, and I certainly don't think anyone would suggest that Dr. Carhart is needlessly inflicting significant risks on his patients after 17 weeks by following that regimen in every case after 17 weeks. And I think it's worth noting that the legal regime that respondents would construct is a legal regime where the woman can decide whether or not to have that shot, Dr. Carhart can decide it for her and that's okay, but Congress can't make this judgment. But it's important to draw a line here, and say that fetal demise that takes place in utero is one thing. That is abortion as it has always been understood. But this procedure, the banned procedure is something different. This is not about fetal demise in utero. This is something that is far too close to infanticide for society to tolerate. Thank you.
05-1382 +++$+++ 37150 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, General Clement. The case is submitted.
05-1429 +++$+++ 37154 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in 05-1429, Travelers Casualty and Surety Company versus Pacific Gas and Electric Company. Mr. Brunstad.
05-1429 +++$+++ 37156 +++$+++ FALSE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The Ninth Circuit's Fobian rule creates an unwarranted Federal common law rule that exists outside the structure of the Bankruptcy Code. The Bankruptcy Code has a distinct structure. For example, if a debtor has a right to an attorneys' fees valid under State law, after the petition date, the date the debtor files for bankruptcy, that right passes to the bankruptcy estate. If a creditor has a State law right to attorneys' fees, after the petition date, that right becomes a claim in bankruptcy. The Ninth Circuit's Fobian rule intercepts those rights even before we get to what the Bankruptcy Code provides or does to them and basically says, if you're litigating Federal issues, you simply cannot have a right to attorneys' fees unless the Federal law authorizes that right, in this case, contractual rights, or alternatively rights available under State statute. That, we submit, is an impermissible creation of a Federal common law rule. There is no basis for it under this Court's preemption precedents. There's no conflict between Federal policy and State policy which would justify the creation of the rule, and accordingly, it is unwarranted.
05-1429 +++$+++ 37157 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can you tell me -- this is just basic bankruptcy. I should know, but I looked it up and couldn't find it. A standard promissory note which provides for attorneys' fees, the holder of the note is the creditor, the maker of the note is the bankrupt -- the maker of the note goes bankrupt. The holder of the note gets his attorney and says: File a claim in bankruptcy. And the attorney sends him a bill. Is the attorneys' fees, the attorney fee for filing the bankruptcy claim, recoverable as part of the claim?
05-1429 +++$+++ 37158 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It depends, Justice Kennedy. It depends on what their contractual right provides. Here we have a contractual --
05-1429 +++$+++ 37159 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's the standard, it's the standard attorneys' fee provision, all attorneys' fees in connection with collection of this note and enforcement of the terms of this note.
05-1429 +++$+++ 37160 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Then, yes, Justice Kennedy, I would say it probably would be covered. It probably would be covered and the analysis --
05-1429 +++$+++ 37161 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is there something where I can look that up in Collier? Are there millions of cases? I mean, this seems to me fairly rudimentary.
05-1429 +++$+++ 37162 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Kennedy. In our reply brief, we do cite to Collier, where we talk about exactly that scenario and it is described. And it basically works like this. A claim under the Bankruptcy Code is defined under Section 1015. The claim includes any right to payment whether it's contingent or fixed, matured, unmatured, et cetera. Any right to payment, literally any right to payment, when the debtor files for bankruptcy, that becomes a claim. If the right --
05-1429 +++$+++ 37163 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, no. But in my case, it's a post-petition action.
05-1429 +++$+++ 37164 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Kennedy. The key concept -- and this is explained clearly in Collier -- is where does the right come from? If it arises out of a pre-petition contract, then the right is pre-petition in nature, even though the fees are incurred post-petition. Think of a guarantee. Think of if PG&E had guaranteed its parent's debt for the $100 million, let's say.
05-1429 +++$+++ 37165 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Could you just back up just for a second? Supposing at the time of the bankruptcy that the services have not been performed. It's post-petition conduct by the lawyer.
05-1429 +++$+++ 37166 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-1429 +++$+++ 37167 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, in that case, are you saying that routinely the lawyer recovers fees in the bankruptcy case even if the debtor, the debtor was insolvent? And we're assuming insolvency in the hypothetical, although it may not fit this case.
05-1429 +++$+++ 37168 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly, yes, Justice Stevens, if in fact, though, the creditor bothers to assert the claim for fees in the bankruptcy case. In most cases, creditors don't, because it's not worth the effort of asserting the claim for fees subsequently. In cases such as this, where you have a solvent debtor who can pay all claims in full, there's no reason why they should be able to get out of their contractual obligations in bankruptcy.
05-1429 +++$+++ 37169 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why wouldn't it be worth -- I know here. But why wouldn't it be worth the effort, instead of getting $90 on the note, to get 95?
05-1429 +++$+++ 37170 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because there's a transaction cost in actually filing the additional claim setting forth the amount that you've incurred. In most cases, Justice Stevens, creditors don't even hire attorneys to pursue or file a claim in bankruptcy. In most Chapter 7 cases, for example, they are no-asset cases.
05-1429 +++$+++ 37171 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you telling me just based on your experience that in Justice Kennedy's hypothetical, normally, no fees are recovered?
05-1429 +++$+++ 37172 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Normally, there's no distribution on unsecured claims in most bankruptcy cases. So why bother?
05-1429 +++$+++ 37173 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But assuming in those cases where there's some distribution, is it correct, as I'm assuming your answer to Justice Kennedy's question, that the normal practice is you don't bother because there is not enough involved?
05-1429 +++$+++ 37174 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Typically, Justice Stevens, that is correct. But in cases such as this, where the attorneys' fees are substantial, the debtor is solvent, and there are substantial --
05-1429 +++$+++ 37175 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Just in the hypothetical, I would think that in many cases, there's going to be some payout for the promissory note, and the holder of the note tells his attorneys: Make sure I get that claim in bankruptcy. The attorney files a claim. And every attorney that files a claim for a promissory note which is entitled to a fee from the bankruptcy court for filing in the bankruptcy court.
05-1429 +++$+++ 37176 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For the work done in performing, filing the proof of claim, that's correct. And even though, Justice Kennedy, the attorney's conduct was after the debtor filed for bankruptcy, the right to payment arises out of the pre-petition contract. Again, think of the guarantee hypothetical. There you had the --
05-1429 +++$+++ 37177 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The pre-petition contract, but not out of pre-petition conduct.
05-1429 +++$+++ 37178 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Justice Stevens. But just think about the pre-petition tort claim, where there has been exposure to asbestos products pre-petition, but the injury arises post-petition. It's still a pre-petition claim.
05-1429 +++$+++ 37179 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, but you're one step ahead of that here, because here there hasn't been any, in effect, any exposure. Here there isn't any certain default on the note. So far as we know, here, there may never be any default on the workers comp obligation. So that your contingency is a much more remote contingency. Why should that, why should this case fall into the same category as the promissory note?
05-1429 +++$+++ 37180 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, it's different in this sense. This is an indemnity, all-loss indemnity provision. The surety is not supposed to incur any loss, any cost whatsoever, for supplying these surety bonds to PG&E.
05-1429 +++$+++ 37181 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And so far as we know, it won't.
05-1429 +++$+++ 37182 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it has, because when PG&E filed for bankruptcy --
05-1429 +++$+++ 37183 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it has, but that depends on a totally circular argument. The minute it filed for bankruptcy, although there had been no default on the comp obligation, your client started incurring attorneys' fees, and it was not incurring attorneys' fees based on any default by the, by the debtor.
05-1429 +++$+++ 37184 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, you can visualize bankruptcy itself as being a default. When the debtor files for bankruptcy, you must come to the bankruptcy court to present your rights --
05-1429 +++$+++ 37185 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You can call bankruptcy a default, but that's not what I mean, and you know that's not what I mean. I'm talking about a default on the workers comp obligation.
05-1429 +++$+++ 37186 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, sir.
05-1429 +++$+++ 37187 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There has been no default on the workers comp obligation, and because they intend to keep on running this business, there is reason to suppose that there will not be.
05-1429 +++$+++ 37188 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, by analogy, Justice Souter, in the LTV case, the same posture at the beginning of the case. We don't know what's going to happen in the future. You must file your claim at the beginning of the case. In LTV --
05-1429 +++$+++ 37189 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, and maybe you don't have a claim at the beginning of the case. I mean, that's what we're getting at. We can understand the claim when the note -- when you've got a promissory note and you're out of money. The claim is inevitable. In this case, there is no inevitable claim.
05-1429 +++$+++ 37190 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But that's precisely the point of why claim is defined so broadly to include contingent claims.
05-1429 +++$+++ 37191 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if it is defined as broadly as this, we're in a situation exactly like this. There has been no default on the obligation, and prior to getting to this Court, $167,000 has been racked up in legal fees that accomplishes absolutely nothing.
05-1429 +++$+++ 37192 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely false, Justice Souter. In bankruptcy, if you do not present your rights, if the rights of the workers themselves are not properly treated, they are lost. Under Section 1141, they are extinguished.
05-1429 +++$+++ 37193 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right, in this case, $167,000 has been spent to come to the conclusion, as I understand it. That if the time comes to assert a right of indemnification, you can assert a right of indemnification and we can oppose it. If we are going to construe the bankruptcy law to provide a law like this, then maybe there is something wrong in the, in the construction of the bankruptcy law.
05-1429 +++$+++ 37194 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Souter, because if you look at what Section 1141 of the Bankruptcy Code does, it provides that a plan of reorganization binds all parties. If you're not provided for adequately in the plan under Section 1141(d), your rights are extinguished forever. You must come to the bankruptcy court; you must be sure that the rights are properly characterized. Excuse me.
05-1429 +++$+++ 37195 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that's not what this bankruptcy court thought about the claim. This bankruptcy court said some rather critical things.
05-1429 +++$+++ 37196 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Ginsburg, but I think we need to distinguish two different things. There was the work that was performed in preserving the rights of the injured employees, to make sure they were properly classified, that their rights were rendered unimpaired. If that hadn't been in the plan, then their rights would have been extinguished under Section 1141. Then there was the claim that the surety provides for having had to have done all of that work.
05-1429 +++$+++ 37197 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I don't -- there was never a time that the plan said we are not going to pay our workers' compensation.
05-1429 +++$+++ 37198 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The problem, Justice Ginsburg, is that the plan said nothing at all. And when the plan says nothing at all, the default rule in bankruptcy is that rights are extinguished; they are discharged under Section 1141(d). It must be in the plan in order to be invalid after the confirmation of the plan. We had to assure those rights were properly treated in the plan, because if they weren't, they would have been discharged under the general -- general discharge provision. That is why one must come to the bankruptcy court, one must file a proof of claim, one must enforce your rights in bankruptcy; if you don't, you lose them. That's why the surety here stepped forward, said it has subrogation rights; the workers have rights. And the bankruptcy court agreed with Travelers. It directed the debtor to put that language in the plan. Travelers --
05-1429 +++$+++ 37199 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought there was a section of the code that preserved subrogation rights.
05-1429 +++$+++ 37200 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's Section 509, Justice Ginsburg.
05-1429 +++$+++ 37201 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
05-1429 +++$+++ 37202 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But that's not what I was speaking of just momentarily. The rights of the injured employees, the workers, when they filed for -- when PG&E filed for bankruptcy, the injured workers had claims. They were going to receive periodic benefit payments off into the future. If PG&E had not properly provided for those claims in the bankruptcy case in their plan, those claims would have been extinguished. As a result, though, Travelers would not have been off the hook on its surety bond, Travelers would have had to have stepped forward and make the payments if PG&E did not. But if Travelers hadn't come to the bankruptcy court and said, these are our rights, these need to be preserved, its recourse against PG&E would have extinguished as well. If one does not come to the bankruptcy court and assert one's rights, one loses them. And of course, creditors when they do have to assert their rights, incur attorneys' fees for doing so. And here we had a pre-petition contract that said, whatever loss we incur, including attorneys' fees, we have a right to recover, a right to payment. That becomes the claim.
05-1429 +++$+++ 37203 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let's assume, let's assume that one of the recipients of comp payments had come forward and said: I object to the plan, I have a claim for comp payments and I object to the plan because it doesn't provide for them. And the -- the court said, you're, you're right. The plan is going to include provision for comp payments and it had been so amended, and it was then -- the plan was then amended. Would you, under those circumstances, have had any -- would Travelers, under those circumstances, have had any reason to assert a claim?
05-1429 +++$+++ 37204 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would not have done that work. No, Justice Souter, because the injured worker him or herself would have done it.
05-1429 +++$+++ 37205 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, I know it. But would you have had any other claim that you would have asserted, had that been done?
05-1429 +++$+++ 37206 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, with respect to the, the treatment of the workers under the plan, no. With respect to --
05-1429 +++$+++ 37207 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ With respect to any interest of Travelers?
05-1429 +++$+++ 37208 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Souter.
05-1429 +++$+++ 37209 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If that had been done, would Travelers have asserted a claim?
05-1429 +++$+++ 37210 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Souter.
05-1429 +++$+++ 37211 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What?
05-1429 +++$+++ 37212 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would have said, in our proof of claim, as we did: If we must make payment in the future, we are entitled to two things. One, we are entitled to reimbursement from PG&E for any amount that we must spend in the future whenever that might occur. Two, if we have to pay any of the employees, we are subrogated. We stand in the shoes of the employees and may assert those rights. The subrogation right would have been fully protected, though, Justice Souter, because of the treatment of the workers in the plan rendering them unimpaired. We would have left simply -- with simply saying we have these reimbursement rights which we would have in case we have to make payment. Now, in the LTV case, which we cite in our papers, at the beginning of the LTV case, the surety who has had $40 million in surety bonds was in a position, very much the same as in this case, when PG&E filed. PG&E got an order authorizing it to continue to pay but not requiring it to pay. That can only be done in the plan of reorganization. LTV started paying the workers' comp benefits, but then defaulted and stopped, long after the bankruptcy case had commenced, but far short of when it concluded. The surety had to step up to the plate and make the payments. If the surety had not filed a proof of claim at the beginning of the case, the surety would have lost its recourse against the debtor, LTV, even though it subsequently, far later, had to make payment.
05-1429 +++$+++ 37213 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Correct me if I'm wrong --
05-1429 +++$+++ 37214 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's how bankruptcy works.
05-1429 +++$+++ 37215 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In -- in this case, I thought that if a contingency claim for indemnification is not allowed, but if it becomes fixed at some time, then the claim can be made and is not lost.
05-1429 +++$+++ 37216 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Ginsburg. There is a bar date set in the beginning of Chapter 11 cases. You must file your claim by the bar date or you'll be forever barred, even if your liability becomes fixed later.
05-1429 +++$+++ 37217 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm talking about 502(e)(1).
05-1429 +++$+++ 37218 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Ginsburg, if your reimbursement claim is contingent, it will be disallowed, subject to reconsideration under Section 502(j). And that's what the parties stipulated to in this case in our stipulation. We filed our proof of claim, then PG&E objected to our proof of claim, but Justice Ginsburg, PG&E did a lot more than just object to our contingent reimbursement rights. They mischaracterized our subrogation rights as claims; they sought to disallow our subrogation claims; and they sought to subordinate our claims. Plus in addition, they sought to disallow the claims of the injured workers. So we had to respond to the litigation that was commenced. We had to defend our rights, and we were successful. The workers' claims were ultimately left unimpaired in the bankruptcy as they should have been. PG&E was fully responsible for paying the workers' claims.
05-1429 +++$+++ 37219 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In any case, this has nothing to do with the, Fobian, so-called Fobian issue, whether the Ninth Circuit drew the bright line.
05-1429 +++$+++ 37220 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct, Justice Ginsburg. The Fobian rule, we submit, is an impermissible creation of Federal common law. It's not justified by any concept of preemption; there is no conflict with bankruptcy policy --
05-1429 +++$+++ 37221 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are they --
05-1429 +++$+++ 37222 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Question --
05-1429 +++$+++ 37223 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let me just ask you about the Fobian, and I know Justice Breyer has a question. Let's assume that you're correct in that the fees are allowable. Can the bankruptcy court make the determination of the reasonableness of the fees?
05-1429 +++$+++ 37224 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It depends, Justice Kennedy. If State law, if it's an unsecured claim under Section 501(b)(1) --
05-1429 +++$+++ 37225 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In this case.
05-1429 +++$+++ 37226 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this case, that would be a determination under State law. Every State, Your Honor, has a reasonableness requirement.
05-1429 +++$+++ 37227 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so if the bankruptcy judge isn't sure of what the amount is, he looks to State law to determine the amount?
05-1429 +++$+++ 37228 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Kennedy. Under Section 501(b)(1) --
05-1429 +++$+++ 37229 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the bankruptcy court does determine reasonableness.
05-1429 +++$+++ 37230 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If State law provides for it, and all States do. The bankruptcy court adopts the State reasonableness standard for unsecured claims under Section 502(b)(1). Yes, Justice Breyer?
05-1429 +++$+++ 37231 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm sort of back where Justice Kennedy started on this. Forget -- I'd like to forget your case, because your case seems to me to be a case where parties argue reasonably about whether the contract itself covers this kind of fee. And maybe it doesn't, if it's very unreasonable, et cetera. But let's take a very straightforward case. It's an obvious contract to collect a debt, or maybe a mortgage, and in the debt or the mortgage agreement, it says, attorneys' fees will be paid for collection. It clearly covers bankruptcy, too, by its language. And now there must be many instances or some, anyway, where the security is inadequate.
05-1429 +++$+++ 37232 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The security --
05-1429 +++$+++ 37233 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And there must be other instances in which there wasn't any security. And if I read Collier as you pointed to, that seems to say, in such cases, very simple, the creditor has the status of an unsecured creditor in respect to those attorneys' fees.
05-1429 +++$+++ 37234 +++$+++ TRUE +++$+++ BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And in --
05-1429 +++$+++ 37235 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Overage in the secured case, and the whole claim in the unsecured case. So get in the queue and you can collect your pro-rata share.
05-1429 +++$+++ 37236 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Justice Breyer.
05-1429 +++$+++ 37237 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ My question is, I have 19 professors on the other side coming to tell me that that's never happened. They can't even find an instance. So it isn't as if, it isn't as if you haven't found an instance, it is that they are prepared to say it never happened. And then there may be one exception or two or something like that. And I can't, that -- I'm now totally puzzled. Because if it's so clear as you say, and I follow your logic, and I followed Collier, why? After all, there are bankrupt people who do have some assets. Explain it.
05-1429 +++$+++ 37238 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer it happens all the time. In our brief, we cite to many, many cases in which attorneys' fees are allowed as unsecured claims. It's actually been happening for over 100 years, it happened in the Bankruptcy Act of 1998.
05-1429 +++$+++ 37239 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, no. But -- but we are talking about attorneys' fees for services performed in the bankruptcy proceeding?
05-1429 +++$+++ 37240 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct, Your Honor.
05-1429 +++$+++ 37241 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The cost of filing the claim, the cost of talking to the bankruptcy judge, et cetera.
05-1429 +++$+++ 37242 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct, Your Honor. And in a key case we cited, the Second Circuit's decision, United Manufacturers and Merchants, where they didn't even hire an attorney until after the bankruptcy case was filed, the attorney performed services, filing a proof of claim, protecting the equitable rights, and the Second Circuit clearly held that those attorneys' fees were properly part of the unsecured claim, but it couldn't be any clearer. And the Second Circuit --
05-1429 +++$+++ 37243 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what I don't -- there is a body of law on the other side of that issue, too, isn't there?
05-1429 +++$+++ 37244 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is, Justice Stevens, but those are lower court decisions.
05-1429 +++$+++ 37245 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. Absolutely. The Second Circuit is a lower court.
05-1429 +++$+++ 37246 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, compared to this Court, certainly, Justice Stevens.
05-1429 +++$+++ 37247 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's exactly right. There are no cases from this Court speaking to this precise issue, are there? On which there is a disagreement among the lower courts?
05-1429 +++$+++ 37248 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, I think it's important to say that the alternative rule that PG&E asked for is one that every court of appeals to have addressed has rejected. What they are saying is, oh, you can't get your attorneys' fees based on a construction of the Bankruptcy Code. No court of appeals has accepted it. There are some lower bankruptcy court decisions that have accepted it, but that is routinely overturned on appeal. The issue of whether you get your attorneys' fees as part of an unsecured claim, Cohen versus De La Cruz, in that case this Court had to construe whether the term debt, which means under the Bankruptcy Code the same thing as a claim, is defined as liability on a claim, there the Court, this Court concluded that that debt included attorneys' fees, the treble damages, the whole nine yards.
05-1429 +++$+++ 37249 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You would have thought that the one group of people who ought to know this thoroughly, or at least have a view are the bankruptcy bar.
05-1429 +++$+++ 37250 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-1429 +++$+++ 37251 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And, and yet there are no briefs from them; there are not -- there is no article that I could find in Bankruptcy Journal.
05-1429 +++$+++ 37252 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, there may be no briefs from them because it isn't the question on which we granted cert, is it?
05-1429 +++$+++ 37253 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Chief Justice Roberts, that's correct. And our view is that the Court should deal only with the Fobian rule. And the alternative argument which Respondent presented was never argued below, was not decided below, was not presented in the opposition to certiorari. It's been rejected by every single court of appeals --
05-1429 +++$+++ 37254 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it would be proper to remand for the Ninth Circuit to consider those other arguments?
05-1429 +++$+++ 37255 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Ginsburg. And that's exactly what this Court should do. It should remand their statutory interpretation argument to the Court of Appeals to consider, for the lower courts to consider. This Court deserves more than just a 20-page reply brief in response to 80 pages of briefing by the other side on an issue that was never raised below, not presented in the opposition to certiorari. Remand would be the proper thing to do with respect to their claim. I do believe that is true, Justice Ginsburg.
05-1429 +++$+++ 37256 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ On both their statutory interpretation and the contract?
05-1429 +++$+++ 37257 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The contract, reasonableness, all of those issues. The circuit split, which we presented to the Court, and which I understand certiorari was -- well, I'm guessing -- certiorari was granted on, it deals with the Fobian rule. As this common law rule, this sort of construct, that if you're litigating Federal law issues, well, as a matter of general Federal common law, you can't get the attorneys' fees unless it's authorized by Federal law. And our brief was entirely devoted to that. You can't justify that rule in our view under preemption principles; there's no conflict; there is no Congress preempting the field in any way; you can't justify this under Atherton as a, as a -- something that's necessary because of a conflict with Federal policy. And also the Fobian rule is inappropriately categorical, in violation of what we submit are these Court's principles in the Nolan case, in the CF and I case. In those cases, the Court said: It's not for the courts to create these claims processing rules in bankruptcy. But that exactly is what the Ninth Circuit did here. If there are no further questions I'd like to reserve the balance of my time for rebuttal.
05-1429 +++$+++ 37258 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ One quick question, if I may. Would one of the issues open on remand be the construction of the contract? Is there an issue at State law as to whether Travelers pays for these particular services?
05-1429 +++$+++ 37259 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Stevens. That would be appropriate on remand. I reserve the balance of my time.
05-1429 +++$+++ 37260 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel.
05-1429 +++$+++ 37261 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
05-1429 +++$+++ 37262 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Rosenkranz.
05-1429 +++$+++ 37264 +++$+++ FALSE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Let me begin at the threshold, on whether this Court should consider the statutory construction argument that we've presented. The issue of statutory --
05-1429 +++$+++ 37265 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And can we be, take one step before that and tell us if you are conceding that the Fobian rule has no basis in the statute and is wrong?
05-1429 +++$+++ 37266 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the Fobian rule reaches the correct conclusion in this case, but Your Honor is correct. The problem with the Fobian rule is that it doesn't go far enough in presenting, in preventing creditors from requiring other creditors to pay for their attorneys' fees.
05-1429 +++$+++ 37267 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if you say it doesn't go far enough then I infer from that you say that it's valid as far as it goes?
05-1429 +++$+++ 37268 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is valid as far as it covers this case but not on the rationale of the Ninth Circuit. In other words, the Ninth Circuit did begin in the wrong place, which was not to read the statute, Section 502, which is why that is a rational predicate to the issue that Travelers is presenting here.
05-1429 +++$+++ 37269 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not sure I agree, Counsel, that the Fobian rule is both narrower and broader than the question you try to present. For example it applies to the claims of a secured creditor for attorneys fees on a secured claim as well.
05-1429 +++$+++ 37270 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor --
05-1429 +++$+++ 37271 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why -- it doesn't?
05-1429 +++$+++ 37272 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Mr. Chief Justice. No court has ever held that the Fobian rule applies to oversecured creditors. Everyone acknowledges that Section 506(b) applies to oversecured creditors so.
05-1429 +++$+++ 37273 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So if you're an oversecured creditor with a claim for attorneys' fees arising under solely issues of matters of Federal bankruptcy law, the Fobian rule doesn't prevent that?
05-1429 +++$+++ 37274 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. Everyone is absolutely clear that Fobian to the extent that it applies --
05-1429 +++$+++ 37275 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, not everyone. I'm not clear on it.
05-1429 +++$+++ 37276 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor. All the bankruptcy practitioners and courts are clear that to the extent that Fobian applies, it applies only to unsecured creditors. But again this is a rational predicate to this Court's analysis of Fobian. How do we know?
05-1429 +++$+++ 37277 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If it is a rational predicate, we might have expected to hear about it in the opposition to certiorari.
05-1429 +++$+++ 37278 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. I apologize for focusing only on the issue that Travelers was focusing on, which was whether this was, whether the Fobian rule was itself cert-worthy question. But it is a rational predicate because, as you can see from Travelers' brief, Travelers says no fewer than a dozen times, including in two point headings: Read the code; read the code. It will tell you that unsecured creditors have an allowable claim for post-petition attorneys' fees, and only if you begin by reading the code can you figure out whether the Fobian common law overlay is correct or not. So when we say, Your Honors, yes, let's read the code, that's not an ambush and that is not smuggling in.
05-1429 +++$+++ 37279 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, it's an ambush and it is smuggling in the sense we don't have a court of appeals decision one way or the other on that question, do we?
05-1429 +++$+++ 37280 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we do have court of appeals decisions on this precise question, not in this case because the court of appeals had Fobian and the rule that underlay Fobian for 20 years. But there are three courts of appeals --
05-1429 +++$+++ 37281 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Justice Ginsburg has a question I'm very interested in. Do you defend the Fobian rule?
05-1429 +++$+++ 37282 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do not, Your Honor. The Fobian rule is wrong at least, especially as to the distinction that it draws between State law and Federal litigation. There's only one answer to the question --
05-1429 +++$+++ 37283 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why then isn't the proper disposition of this case to send it back to the Ninth Circuit to consider all these other arguments?
05-1429 +++$+++ 37284 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, because this issue has been fully ventilated among the lower courts.
05-1429 +++$+++ 37285 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but we are not a court of first view and you know that very well. We are a court of review. So no matter how well it's been aired, we wait to see what the lower courts have said on a question. We don't take it in the first instance.
05-1429 +++$+++ 37286 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I understand that, Your Honor. It would have been futile to argue this before the Ninth Circuit. The Ninth Circuit would have said that --
05-1429 +++$+++ 37287 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I understand that because they have the Fobian rule.
05-1429 +++$+++ 37288 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Now, but, Your Honor, let me just add two additional reasons why this Court should consider it now. The first is this has been fully ventilated in the lower courts. There is not a single argument in the briefs on either side on which there is not a lower court opinion going one way or another on every argument. Secondly, there is an enormous amount of affirmative harm that can come from this Court simply saying, let us conclude that the Ninth Circuit was wrong in disallowing these claims on the logic that the Ninth Circuit followed, but we will reserve for a later day an open question of law on what Section 502(b) and 506(b) means. And the harm comes from the fact that overwhelmingly the lower courts in the last 10 years have concluded that 502(b) and 506(b) mean that unsecured creditors do not have these claims. If this Court declares that it is now an open question --
05-1429 +++$+++ 37289 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me ask you a question about that. Your argument depends -- you analogize -- you would agree, I take it, that if this was an oversecured, secured creditor they'd be entitled to fees?
05-1429 +++$+++ 37290 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we would dispute the contractual interpretation, but yes, Your Honor.
05-1429 +++$+++ 37291 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But assuming, assuming the contract provides that.
05-1429 +++$+++ 37292 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-1429 +++$+++ 37293 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if that's true -- and the reason for that I suppose is that doesn't impair the rights of the general creditors at all.
05-1429 +++$+++ 37294 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's one logic of the --
05-1429 +++$+++ 37295 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If that's so, why isn't their argument that, well, your client is solvent, the complete answer to your position?
05-1429 +++$+++ 37296 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, because Congress didn't say that. Congress gave only one answer to the question whether unsecured creditors get their attorneys' fees allowed, that is post-petition attorneys' fees allowed. It's either yes or no. There is no on-off switch for solvent or insolvent creditors within the code, which is why Travelers never argued that as a, an objection to the plan of confirmation.
05-1429 +++$+++ 37297 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They argue it in their reply brief here.
05-1429 +++$+++ 37298 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, and that is absolutely incorrect. If you look at the case that they cite, that case relies on a provision of the code, which is Section 726. And Section 726 is only about post-petition interest for solvent debtors, not post-petition attorneys' fees.
05-1429 +++$+++ 37299 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, how do you avoid -- what about their statement from Collier?
05-1429 +++$+++ 37300 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the statement that Travelers quotes from Collier is about a proposition that we don't dispute, which is whether it is a pre-petition claim. But Collier.
05-1429 +++$+++ 37301 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. No. It said -- a pre-petition claim, if a creditor incurs the attorneys' fees post-petition, they incur it post-petition, afterwards they file, after the petition they file a claim with the bankruptcy court, in exercising or protecting a pre-petition claim that included a right to recover attorneys' fees. And they say that's what we have, we had a contract that gave us this right to attorneys' fees. The fees will be pre- petitioned in nature, constituting a contingent pre-petition obligation that became fixed post-petition when the fees were incurred. All right. Now, what is your response to that?
05-1429 +++$+++ 37302 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, my response is I urge you, Justice Breyer, to look back at Colliers, because that is absolutely accurate and it doesn't apply to this case.
05-1429 +++$+++ 37303 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because?
05-1429 +++$+++ 37304 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because, Your Honor, that is a statement about whether it is a pre-petition claim, not about whether the claim is allowable or not, which is what we are arguing about.
05-1429 +++$+++ 37305 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then you explain that to me?
05-1429 +++$+++ 37306 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. Step one is, is it a claim. No one disputes that this is a claim. It is a right to payment. Step two, is this an allowable claim? The answer under the code is absolutely not, because the code says there is only one class of creditors that gets their attorneys' fees claims allowed and that is oversecured creditors and so --
05-1429 +++$+++ 37307 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's because 506 had to do that in order to tell the bankruptcy courts how to deal with secured claims.
05-1429 +++$+++ 37308 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor.
05-1429 +++$+++ 37309 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That doesn't -- and then you have the negative inference or the exclusio unius argument, whatever, which I think is misplaced in this context.
05-1429 +++$+++ 37310 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, Congress put 506(b) in the code for one purpose and one purpose only, and that was to allow claims that are not elsewhere allowed, because if it doesn't do that 506(b) serves no purpose at all. 506(b) says nothing at all about whether the claim is secured.
05-1429 +++$+++ 37311 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why doesn't it serve the purpose of saying that the fees will be covered by the security? They'll not be just be claims for fees that would stand together with the unsecured creditors, but that the oversecured -- the security will cover the interest, will cover the attorneys' fees, and that's the function of 506 whatever --
05-1429 +++$+++ 37312 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the answer is 506(b) does not say anything about whether the allowed claim is secured or not. It is completely silent about that. Now, if we accept, as we explain in our brief in much more detail, if we accept Travelers' argument that it was an allowed claim in the first instance and it is therefore furthermore an allowed security claim, 506(a) tells you what to do with that. 506(a) tells us that an allowed claim to a secured creditor is a secured claim. It still leaves Section 506(b) with nothing left to do. Now, let me just back up and underscore: Any creditor would love to get the other creditors to pay its attorneys' fees. Tort claimants would love it, trade creditors would love it, local tax collectors would love it. But Congress said only one category of claimants get to claim their post-petition attorneys' fees.
05-1429 +++$+++ 37313 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, that is exactly what's puzzling me. But why haven't they gone out and got? So why -- what you're pointing to so far is that Congress has said a particular class of people get the attorneys' fees out of the security insofar as the security will support it. It doesn't say a word about what happens to the attorneys' fees after the security is exhausted, nor about anybody else's attorneys' fees, where so provided by contract. Colliers says they can get it.
05-1429 +++$+++ 37314 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, Congress said --
05-1429 +++$+++ 37315 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Same puzzlement.
05-1429 +++$+++ 37316 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, Congress has said no such thing. What Congress says is that an allowed claim is allowed as of the date of the filing of the petition. That is when you value the claim and you value the claim as of the date of the filing of the petition. At that point, it is worth zero because no post-petition attorneys' fees have been incurred. And the fact of the matter is it may well have never occurred to the drafters of the code when --
05-1429 +++$+++ 37317 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose I sell you a house and I make a promise that I'll fix any leaks in the bathroom. And lo and behold, before there's a leak the -- I'm bankrupt. And while I'm bankrupt it floods, the bathroom. No claim?
05-1429 +++$+++ 37318 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that is a claim. It is a --
05-1429 +++$+++ 37319 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It is a contingent claim. And you're saying this is the same.
05-1429 +++$+++ 37320 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm saying -- they are saying this is a contingent claim. If -- and it is a very strange sort of a contingency. It is Travelers saying, we have a claim, it is a contingent claim; the contingency is whether tomorrow morning we're going to pick up the phone and called Weil Gotshal to monitor the bankruptcy proceeding. But let's assume it is a contingent claim. It is still a disallowed claim and Congress provided numerous statutory indications that it was. I already mentioned 506(b) but there are more. Congress said that attorneys' fees are available only, quote, "to the extent that a claim is oversecured." Now that would be a very --
05-1429 +++$+++ 37321 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. It's quite unlike the situation, for example in Timbers, where had you in 502 a disallowance of post-petition interest. There is not in 502 a disallowance of attorneys' fees.
05-1429 +++$+++ 37322 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I was just going to get there. Timbers underscores this proposition. Timbers focused on the structure of 506 and it began with and it underscored, the only words that it underscored were, "to the extent that." But let me turn to that.
05-1429 +++$+++ 37323 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, Timbers cited, as the Chief Justice indicates, the interest section in 506. That's all it's about. I don't -- I think Timbers is misleading on this point.
05-1429 +++$+++ 37324 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, Timbers has the structural argument that focuses on what the purpose of 506(b) is. But there are more indications. It would be odd for Congress, for example, to draft this provision 506(b) that purports to put post-petition attorneys' fees on the same footing at post-petition interest if it intended to put them on different footings. It's an observation this Court made in Ron Pair. Moreover, Congress was not oblivious to the existence of attorneys' fees post-petition. There are 15 occasions in the code where Congress spoke to attorneys' fees and if Congress had intended attorneys' fees to be available to this enormous class of unsecured creditors, one would think that it would not have hidden that in the definition of "claim" --
05-1429 +++$+++ 37325 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, are those 15 places -- do they involve attorneys' fees as administrative expenses? Do any of them involve attorneys' fees simply as an unsecured claim for attorneys' fees?
05-1429 +++$+++ 37326 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, as to creditors, four of them apply to attorneys' fees as administrative expenses. It's a very important point because the code says and it adopts this age old rule that if you are going to take money away from some unsecured creditors and give it to attorneys it better be because you're expanding the pot for all of the other creditors.
05-1429 +++$+++ 37327 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's the answer to my question? Is the answer that 11 of them say you can collect attorneys' fees, but only as an unsecured claim against creditors.
05-1429 +++$+++ 37328 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, for the, for creditors there are only six that apply. Four of them are the administrative.
05-1429 +++$+++ 37329 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right, so six.
05-1429 +++$+++ 37330 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-1429 +++$+++ 37331 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So six are administrative, and then the remaining two say that the creditor can collect it as an unsecured debt?
05-1429 +++$+++ 37332 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-1429 +++$+++ 37333 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which are those two?
05-1429 +++$+++ 37334 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, one of them does.
05-1429 +++$+++ 37335 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which is that?
05-1429 +++$+++ 37336 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is the provision that Travelers cites -- and I apologize it's not in any of the appendices -- 502(b)(4). And 502(b)(4) underscores our point. 502(b)(4) says, and I'm quoting directly from the code: "A claim is allowed to the" -- "is disallowed to the extent that," and then "(4) if such claim is for services of an insider or attorney and such claim exceeds the reasonable value of such services." That is focused on pre-petition activities of the lawyers on behalf of the debtor.
05-1429 +++$+++ 37337 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That seems to cut the other way because it says it's disallowed insofar as it's unreasonable of course, and therefore it would be allowed insofar as it's reasonable.
05-1429 +++$+++ 37338 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, yes. Pre-petition claims for services provided by an attorney before for the petition.
05-1429 +++$+++ 37339 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, attorney for the debtor.
05-1429 +++$+++ 37340 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ An attorney for the debtor and, Your Honor, the code is clear it's noteworthy.
05-1429 +++$+++ 37341 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but I mean you don't have exactly what I was driving to. I was quite interested that you said there are 11 other provisions that we could look at for support, and I wouldn't think it was support if those consider -- concern administrative expenses, which nobody's asking for here, they just want an unsecured claim, or if they concern some other --
05-1429 +++$+++ 37342 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Fair enough Your Honor.
05-1429 +++$+++ 37343 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- irrelevant thing.
05-1429 +++$+++ 37344 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Fair enough, Your Honor. My point is that Congress knew about attorneys' fees and if it wanted this huge class of unsecured creditors to collect their attorneys' fees for post-petition activities, it wouldn't have hidden that in a general definition of claim or in the general statement of allowability.
05-1429 +++$+++ 37345 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, your brother in his reply brief said that no court of appeals has endorsed your theory, and I -- earlier you told me one had. Which one in particular?
05-1429 +++$+++ 37346 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the First Circuit -- there are three courts of appeals that have addressed the question, all in dictum but in very extensive dictum. So the First Circuit comes out our way in Adams versus Zimmerman. The Second Circuit comes out also in dictum on Travelers' side in United Merchants. And then the Sixth Circuit splits the baby in half, or reads the code all the way up to our position as we do, and then takes a detour in another direction.
05-1429 +++$+++ 37347 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you really want us to reach out and decide a question that's not presented when there has been no holding of the court of appeals one way or the other on the issue?
05-1429 +++$+++ 37348 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we didn't come here asking this Court to address this question. Travelers put it front and center. They conceded --
05-1429 +++$+++ 37349 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you thought the Fobian rule was wrong, you could have said that.
05-1429 +++$+++ 37350 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, it would have made no sense for us to argue that Fobian was wrong when we were trying to defend the judgment below. But I concede, Your Honor, this Court has discretion to decide whether it's going to address what we believe is an absolute factual predicate, and what Travelers seems -- I'm sorry, legal predicate -- and what Travelers seems to believe is a legal predicate, which is why we're saying to the Court this case, this issue has been ventilating for 20 years, and a lot of mischief can be --
05-1429 +++$+++ 37351 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How -- can we decide? But I'm wondering about, maybe you don't want to answer this, but I mean, if we were to say Fobian is wrong, everybody will agree with us. But we should have to say why it's wrong. And if we say the reason that it's wrong is because you can't collect attorneys' fees at all, you'll be delighted. And if we say the reason it's wrong is because you can collect attorneys' fees regardless, they'll be delighted. And our only other alternative is to not say why it's wrong or -- I mean, that's the problem.
05-1429 +++$+++ 37352 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's exactly --
05-1429 +++$+++ 37353 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's an added complication. There's another case on which the Ninth Circuit's based its decision in your case, DeRoche. Your proposed solution here doesn't address the issue in DeRoche because there it's the debtor that's seeking attorneys' fees.
05-1429 +++$+++ 37354 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Your Honor.
05-1429 +++$+++ 37355 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So we still have to decide the Fobian issue. And your failure to defend it here means that we're going to have to decide in on that inadequate record. If you have mentioned that in an opposition to certiorari, perhaps we would have granted cert in the DeRoche case and had an argument about the rule that we have to decide.
05-1429 +++$+++ 37356 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I appreciate that, and I apologize for not having raised it in the cert petition, cert opposition, we were simply focused on why it is that this little sliver of the Fobian rule was not worth this Court's attention. But I understand that this Court needs to look forward and try and figure out what exactly the issues are that are presented. I only add that the statutory question that is presented in DeRoche and in this case are as Your Honor has pointed out, mirror images of each other. So whatever this Court decides as to the statutory construction question on 502(b), this Court can say it's not resolving Fobian because this is a predicate question. And this Court can say there may well be circumstances in which a creditor can say, you know what, for State law litigation we have this common law right, and we reserve for a later day the question of whether there is an exception to the statutory rule that we are articulating. Now I want to underscore that Congress had very important reasons that are built into the code for coming out this way and disallowing unsecured creditors attorneys' fees. Bear in mind that these sorts of fee shifting provisions are absolutely ubiquitous. They are in every credit card contract. They are in every bank loan. They are in virtually any written contract, and when a contract doesn't provide for it, quite often State law statutes do. Allowing all of these unsecured creditors to pay their lawyers out of the hides of all of the other unsecured creditors --
05-1429 +++$+++ 37357 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but that's not the facts of this case. Isn't that correct?
05-1429 +++$+++ 37358 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor --
05-1429 +++$+++ 37359 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This will not have any adverse, if I understand the facts, any adverse impact whatsoever on any unsecured creditor.
05-1429 +++$+++ 37360 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, on the facts of this case if the rule had been otherwise, we don't know whether PG&E would have been solvent at all. But we are arguing about a rule that is not one rule for Travelers and one rule for everyone else. We are arguing about a rule for the vast majority of cases.
05-1429 +++$+++ 37361 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but just looking at this case itself, if there is plenty of money there to pay a State law obligation, why shouldn't just ordinary rules of contract law apply?
05-1429 +++$+++ 37362 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, the answer is, Congress dealt with this issue and decided that no one gets to get in line and get their attorneys' fees, regardless of whether they're solvent or not. It's a --
05-1429 +++$+++ 37363 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're raising a provision that says just that, it's the absence of a provision for attorneys' fees that you're relying on.
05-1429 +++$+++ 37364 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, no, Your Honor. We've been talking about why the only natural way to read the code is to disallow attorneys' fees, and I'm explaining that if attorneys' fees are generally disallowed to everyone, there's no exception to that rule in the code that says ah, yes, but if there's an insolvent -- if there's a solvent debtor, the rule is otherwise.
05-1429 +++$+++ 37365 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where is the provision that generally disallows attorneys' fees?
05-1429 +++$+++ 37366 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. What I'm saying is 502(b) when you read "as of the time of the filing of the petition," it says -- that means, that must mean that it doesn't apply to post-petition attorneys' fees, especially when you look at 502(b) through the lens, as this Court did in Timbers, of the rest of the code. 506(b), all of these other attorneys' fees --
05-1429 +++$+++ 37367 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, on that point you disagree with the Collier citation at page 9 of the reply brief then?
05-1429 +++$+++ 37368 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, I disagree with Colliers, but I don't think Colliers comes out one way or another on this particular question. That was the same question that was asked earlier about whether it's a claim, whether it's a pre-petition claim.
05-1429 +++$+++ 37369 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it says if the creditor incurs the attorneys' fees post petition in connection with protecting a pre-petition claim --
05-1429 +++$+++ 37370 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-1429 +++$+++ 37371 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the fees will be pre-petition.
05-1429 +++$+++ 37372 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was the same --
05-1429 +++$+++ 37373 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you disagree with that?
05-1429 +++$+++ 37374 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't disagree with that, Your Honor. I was referring to another provision of Colliers, not the one that's cited in the reply brief. That is a correct statement but it has no application here because we are not arguing about whether it's a pre-petition obligation. Of course it's a pre-petition obligation. Just like pre-petition interest -- excuse me -- post-petition interest is a pre-petition obligation we are arguing that the code cancels that obligation because there are very important reasons, such as equality among all unsecured creditors, the --
05-1429 +++$+++ 37375 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're saying this particular set of pre-petition obligations. Collier, I think in context must be saying, you get paid the money. I mean, he goes on in the next sentence and says by the way, despite my last sentence, you don't get the money?
05-1429 +++$+++ 37376 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. What Colliers is talking about is a completely different question. He doesn't answer that question one way or another in Colliers.
05-1429 +++$+++ 37377 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, in other words what he implies, if I ready the whole page I'll see, although he just said what we quoted, the whole page means, by the way, I'm not telling you if you get the money or not?
05-1429 +++$+++ 37378 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This was a completely different discussion on a --
05-1429 +++$+++ 37379 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Sorry, I'll --
05-1429 +++$+++ 37380 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- completely different section referring to setoffs.
05-1429 +++$+++ 37381 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think your 506(b) argument, I see your point, I see your point, is there -- I mean, and you'd have to say well, 506(b) simply repeats 506(a), as sometimes provisions do, and then it becomes somewhat superfluous, somewhat not. I got that point. I also have your point about, well, there are other references. Now, is there any other point in the code?
05-1429 +++$+++ 37382 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. There is one other point and that is, 502(c) tells the court what it is supposed to do with contingent claims. It is supposed to either liquidate them or estimate them. These are -- this is a very strange sort of contingency, as I mentioned earlier.
05-1429 +++$+++ 37383 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's not in the materials, 502(c)?
05-1429 +++$+++ 37384 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 502(c) is, Your Honor. It's on the very back of the cert petition appendix on page, I believe 28. And so it says either estimate or liquidate, but always as of the date of the filing of the petition. Now as of the date of the filing of the petition it would be impossible to estimate without a crystal ball.
05-1429 +++$+++ 37385 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How do they do it with my leaky bathroom?
05-1429 +++$+++ 37386 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, what you do is -- that is a classic contingency. What you do is to estimate the likelihood that the bathroom will in fact leak and the cost of those expenses, and you put something into the, into the bankruptcy estate for that purpose. That would be something that Congress would never have wanted to do with thousands and thousands of unsecured creditors.
05-1429 +++$+++ 37387 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I am concerned about your point that there are all kinds of attorneys' fees contracts out there and if everybody can get fees for filing the claim post-petition act, we have a huge amount of claims to pay. Travelers would tell us, though, that a surety is different, that they somehow stand in the shoes of PG&E or something.
05-1429 +++$+++ 37388 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I don't understand why a surety is different from any other contract. All contractual creditors will want their fees. The reason that they haven't been applying for them is that the overwhelming majority of bankruptcy courts will tell you no, you can't have them, because the overwhelming majority of cases have been saying exactly what I'm saying to you. 502(b) does not allow them, and we can tell that by looking at 506(b). And there are other reasons that Congress would not have wanted to do that. It would have burdened the administration of the state -- of the estate. The court would be spending more time administering claims about fees and what does this contract mean, and fees upon fees upon fees, than it would be spending administering the basic bankruptcy estate.
05-1429 +++$+++ 37389 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, of course the argument here is that this is something different from the general abuse that you're describing, because the plan didn't make any provision here for, for paying the workers comp obligation at all. What is your response to that?
05-1429 +++$+++ 37390 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, my response is that is absolutely wrong. The first draft of the plan which you can see on page 28 of the appendix says explicitly, and I quote, "all workers compensation programs are treated as executory contract." Treated as executory contracts and deemed assumed by the debtor, and that means that the workers got the most favorable treatment that they could have gotten. These are not just unsecured claims.
05-1429 +++$+++ 37391 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your friend says it's more favorable to say the claims are unimpaired.
05-1429 +++$+++ 37392 +++$+++ TRUE +++$+++ MR. ROSENKRANZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that's what they argued. The bankruptcy court explicitly held otherwise and the Ninth Circuit agreed with the bankruptcy court. The bankruptcy court said, none of your interventions were reasonably necessary to reach -- excuse me -- to advance your interests. Therefore, you are absolutely wrong when you argue to us that you are on the State law side of the Fobian rule. Now if you ask me, Your Honor, where in the bankruptcy court decision does it say that, I would refer the Court to page 24a of the -- of the cert petition appendix, where you see asterisks for a missing paragraph right in the middle of the opinion. That, and just to orient the Court, we're looking at the first paragraph that says first of all. Then there's a -- there is an asterisk eliminating a paragraph. Look at page 140a, 141 of the joint appendix where the missing paragraph that Travelers eliminated is filled in, and there the court summarizes a 15-page colloquy with Travelers about why it is completely wrong in claiming that its steps were reasonably necessary. And on page 141, just to orient the Court again, you see that it begins, second paragraph, first of all. That's the same paragraph. The next paragraph refers to Mr. Brunstad's arguments. It says, "I just simply don't by it. I don't think you can sort of say, you know, we thought there was a thief hiding under the bed so we had to clear out under the bed. I don't think there was a risk there." And that was the gist of 15 pages proceeding the joint appendix, where the court methodically demolishes each of the argument Travelers presents here. Thank you, Your Honor.
05-1429 +++$+++ 37393 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Brunstad, you have eight minutes remaining.
05-1429 +++$+++ 37395 +++$+++ FALSE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, in our brief on pages 25 and 26, we cite to a number of cases where the courts allowed attorneys' fees as an unsecured claim, both for pre-petition work done and also post-petition work done where the contractual right was pre-petitioned. We also cite a bunch of cases around page 44 -- 43 and 44 of our brief, including an article in the middle of page 44, quote: "In cases decided under the Bankruptcy Act, the higher courts consistently held that attorneys' fees were allowable even as unsecured claims in bankruptcy." Close quote. I've been a bankruptcy lawyer for over 20 years. I've been teaching bankruptcy law for 17 years. It is absolutely not true that courts routinely disallow claims for attorneys' fees as part of unsecured claims. It's the opposite is true it's routine that they are allowed in practical reality however they are not presented because creditors don't bother to present them because distributions are generally so low in bankruptcy. On the point about the plan completely protected the rights of the injured workers, nothing could be farther from the truth. The provision that counsel cites in the plan refers to exec, as executory contracts, workers' compensation benefit programs. Those are the contractual relationships between PG&E and its administrators, not the claims of the workers themselves. Tellingly, PG&E never argued in the bankruptcy court that the claims of the workers were fine under the plan. In fact, they said, we will do what Travelers wants after the bankruptcy court directed -- and it's in the transcript -- that that was the appropriate thing to do. In fact, what Travelers insisted is required by Section 1123 of the Bankruptcy Code, claims such as the workers' must be classified, their treatment must be specified. If they are not they are eliminated. The reference to executory contracts clearly doesn't apply. As we explain in our reply brief, the workers' claims were not executory contracts under applicable law. That section does not apply. Of course, I think, Chief Justice Roberts, there is a lot more that we would like to say about their alternative arguments than we were able to put in our 20-page reply brief. The issue that they raised has not been fully ventilated in the lower courts. In fact, there are many more things we would say about it on remand. I also think it's important to point out, Justice Stevens, they are a solvent debtor, and under the concept of absolute priority shareholders are not allowed to recover anything unless creditors are paid in full. What they are trying to do is they're trying to get rid of their contractual obligations in bankruptcy for the benefit of their shareholders. There's no implication between creditors, creditors' recoveries in this case one versus the other. In the Dow Corning case which we cite in our reply brief the Sixth Circuit expressly held where you have a solvent debtor you have to pay all of the attorneys' fees. That is an additional argument we would develop on remand. But all of their arguments about Section 506 and their interpretation of 502 simply don't matter, because as a solvent debtor they're not entitled to take advantage of that theory even if it were valid. And we contend that it isn't valid. The court of appeals have resoundingly rejected it. The Second Circuit rejected it in United Merchants and Manufacturers. The Sixth Circuit rejected it in Dow Corning. The Eleventh Circuit it en banc in the Wellsville case. All of them considered the 506 argument that they're making and rejected it, and properly so. Counsel cites to Section 502(b)(4). That's an important section because that demonstrates that Congress understood that attorneys' fees would be allowable as an unsecured claim under Section 502. And in Section 502(b)(4) it provided the only exception, the only one where attorneys' fees would not be allowable as an unsecured claim. It provided expressly attorneys' fees would not be allowable for the attorney for the debtor to the extent the claim for the fees exceeded the reasonable value of the services performed. Why is that provision there? Because Congress saw there was a problem. There was a problem of debtors sending money to their attorneys. Congress understood that to be a problem and it remedied it. Congress did not think there was a problem with respect to this historic practice of going on over 100 years of attorneys' fees being allowed as unsecured claims, and so in Section 502 it allows them. Respondents' argument about Section 506(b) renders Section 502(b)(4) superfluous. If attorneys' fees were never allowable as part of an unsecured claim except for how 506(b) allows it, then there would not be a need for Section 502(b)(4). In addition, Respondent overstates the office of Section 506. 506, as this Court explained in Ron Pair, provides, essentially tells us what secured creditors get out of their collateral and in what order -- the pre-petition amount and then, if there's any value left, the value of the collateral. After you pay the pre-petition amount of the claim, you can add attorneys' fees and you can add, post-petition you can add interest. Their interpretation of Section 506(b) would render Section 502(b)(2) superfluous. Under their theory, only oversecured creditors get post-petition interest, get interest.
05-1429 +++$+++ 37396 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If you prevail, why can't every attorney who represents a creditor who has a credit card or a promissory note providing for attorneys' fees file something in bankruptcy and get attorneys' fees for the filing of the claim?
05-1429 +++$+++ 37397 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That already happens, Justice Kennedy. In all the circuits that recognize that attorneys' fees are allowed as unsecured claims, that already happens. And that has not cause any disaster or any problem. It's been a practice for 100 years. If Congress had wished to change the practice, it would have when it codified the Bankruptcy Code in 1979. The fact that it hasn't perceived it to be a problem demonstrates that Congress wanted to leave the practice unchanged. Now, what happens, though, again, Justice Kennedy, is that creditors don't bother to file claims for those amounts. And where it matters is in cases where it should matter, like in this case, in the PG&E case, where a solvent debtor is simply trying to get out of its contractual relationships. And under principles of absolute priority they are not allowed to do that for the benefit of shareholders where creditors are not being paid in full. And I think it's important to underscore again, Justice Kennedy.
05-1429 +++$+++ 37398 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's interesting. You're of course a teacher too. The amicus brief by a bunch of professors has a different view of the history than you're describing.
05-1429 +++$+++ 37399 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, what I take, what I take from their analysis is a hostility towards attorneys' fees being allowed in bankruptcy. And perhaps maybe as a matter of policy, if we were to start from scratch, well, maybe we shouldn't allow attorneys' fees to be allowed in bankruptcy. Maybe we shouldn't allow tort claims to be allowed in bankruptcy. Maybe we shouldn't allow certain kinds of environmental claims to be allowed in bankruptcy. They don't like the rule, apparently, but their analysis of the history is wrong. And we cite innumerable cases and law review articles that demonstrate that the practice is as we say that it is. And policy reasons are no grounds to sort of create these Federal common law rules or these categorical rules of preclusions.
05-1429 +++$+++ 37400 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you say a word about Justice Holmes' opinion in the Scruggs case.
05-1429 +++$+++ 37401 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Stevens. The Randolph case was decided in 1903 and the law changed dramatically since then. For example, in 1903 contingent claims were not provable under the Bankruptcy Act. That changed in 1938 when contingent claims became provable under the Bankruptcy Act. Randolph & Randolph versus Scruggs involved the claim of a custodian, a custodian, an assignee, who took control of all the debtor's assets before the bankruptcy filing. Now under Section 503(b)(3)(E), the Randolph versus Scruggs analysis as it pertains to the claims of the assignee, those are now treated as an administrative expense under Section 503 dealing with administrative expenses. In Randolph, it's interesting, the fees -- Justice Kennedy, the fees incurred in preparing the assignment were allowed as an unsecured claim in the bankruptcy case. Justice Holmes for the Court said they are allowed. So in fact Randolph I think refutes their analysis rather than supports it.
05-1429 +++$+++ 37402 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
05-1508 +++$+++ 37406 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first today in case 05-1508, Zuni Public School District, et al. vs. Department of Education. Mr. Van Amberg.
05-1508 +++$+++ 37408 +++$+++ FALSE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice and may it please the Court: In 1994, Congress enacted the equalization formula under the Impact Aid Act. It did so clearly and decisively, and described a methodology which was unambiguous, was self contained, reflected a recognized statistical standard, and assisted in actually promulgating -- and -- the intent of the Impact Aid Act, which is to benefit impacted local educational agencies or school districts and not fund the general educational program of the States. In so doing, Congress removed from the Secretary the previously delegated authority to establish by regulation the equalization formula. The Secretary in turn in 1996, in enacting his regulations in response to the 1994 legislation, disavowed that he was engaging in any rulemaking or in fact in any interpretations of statutes. Instead, the Secretary sought and announced that he was proceeding under an exception to the public notice and comment laws, 5 U.S.C. 553(b), by stating that his regulations merely reflected changes in legislation, refining regulatory language.
05-1508 +++$+++ 37409 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Van Amberg, they were essentially the same as the prior regulations, were they not? And those regulations had gone through the notice and comment process.
05-1508 +++$+++ 37410 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. That is correct, Justice Ginsburg -- Ginsburg. Those were essentially, except for a few words here and there, those were the same regulations. But they were in response to a congressional directive back in 1974 that the Secretary is to create the equalization formula. In 1994, Congress came in with legislation and established that formula.
05-1508 +++$+++ 37411 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought that the formula was proposed to Congress by the Department of Education, which is not something that Congress did in other words, to stop the Secretary from whatever he was doing. But it was indeed -- wasn't it the Secretary's own language that Congress enacted?
05-1508 +++$+++ 37412 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The contention is made that this 545-page omnibus education bill --
05-1508 +++$+++ 37413 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, just as to that, the provision that we're talking about, do you say, you say it wasn't drafted by the Department of Education?
05-1508 +++$+++ 37414 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think we know exactly who it was drafted by. I think there is -- there is some references in the Congressional -- Congressional Record that this is an administration bill. But I would, I would like to respond, Justice Ginsburg, based on the assumption that this was the Secretary's bill. Under the statutory formula, the language is clear that what is disregarded in -- in ranking LEAs and eliminating percentiles of LEAs is those LEAs which fall above the 95th percentile --
05-1508 +++$+++ 37415 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Before you get into the substance let's -- let's finish with this, this problem, whether it was indeed the other Secretary's own bill. Was the Secretary who proposed the -- the '94 legislation, the same Secretary who had promulgated the prior regulations?
05-1508 +++$+++ 37416 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. This --
05-1508 +++$+++ 37417 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The prior regulations were promulgated when?
05-1508 +++$+++ 37418 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The former regulations were promulgated in 1976.
05-1508 +++$+++ 37419 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ My goodness, that's a long time before.
05-1508 +++$+++ 37420 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's a long time.
05-1508 +++$+++ 37421 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ With a different Secretary now.
05-1508 +++$+++ 37422 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And a different agency. There wasn't even --
05-1508 +++$+++ 37423 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So there's no reason to believe that the same Secretary -- that the Secretary continued to have the same view of what was proper, is there?
05-1508 +++$+++ 37424 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We view that it did not and, and also, Justice Scalia and Justice Ginsburg, we also view that if this was the chief educational officer of the Federal Government, he was more than capable of developing a statute which reflected his methodology of --
05-1508 +++$+++ 37425 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Indeed he could have copied the regulations that were on the book and just put them in the statute, couldn't he?
05-1508 +++$+++ 37426 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, even in the same act, Your Honor, under when they had the EFIG statute, there Congress was able to reference the regulations of the Secretary. They didn't do so when they were, when they enacted the impact aid part of it. So --
05-1508 +++$+++ 37427 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, as -- as far as the difference in time, it was the Secretary's decision, the later Secretary's decision to retain, as you acknowledged, the, almost the identical regulation. You said it didn't go through notice and comment the second time, but the text was basically the same in '76 and in --
05-1508 +++$+++ 37428 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He didn't -- if I could, Your Honor, he did not retain the second regulation. This was supposed to be a new regulation which was promulgated by the Secretary because the Impact Aid Act had been repealed --
05-1508 +++$+++ 37429 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes --
05-1508 +++$+++ 37430 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and re-enacted.
05-1508 +++$+++ 37431 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- and I appreciate that. But the text of it, what the regulation said was not significantly different from what the earlier regulation said.
05-1508 +++$+++ 37432 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. But it --
05-1508 +++$+++ 37433 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was this the same Secretary, by the way, as the Secretary who issued the new regulation, the same Secretary that was in office when the new legislation had been proposed?
05-1508 +++$+++ 37434 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The new legislation was '94. Secretary enacted it in '96. I think it probably was. I -- I -- it was the same administration.
05-1508 +++$+++ 37435 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why, why would the Secretary, if indeed it was his bill, why would he deprive himself of the power to decide what the formula should be? Which is the power he had before. I mean, one must think that there must have been some pressures from elsewhere when the Secretary goes in and says take some power away from me, please.
05-1508 +++$+++ 37436 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that, and I would agree, Justice Scalia, that that is not a, a usual event where an administration intentionally disgorges from itself its own authority. And, and I would also point out the fact that again, there is a dramatic difference between what, what the statute proposed and, and the methodology described in the regulation. And what's, what's very significant is if you go back to 1976 when the original regulation was promulgated, there was a debate that went on in the public notice and comment portion of these proceedings where they discussed whether you eliminate percentile of LEAs directly or whether you add this extra step of eliminating percentage, percentages of pupils and then eliminating LEAs as these pupils are eliminated. I mean, it's a totally different process, totally different philosophy behind them and as we can see in this particular case, in New Mexico and in Alaska, totally different results.
05-1508 +++$+++ 37437 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, Mr. Van Amberg, is the statutory language really as unambiguous as you suggest? It says above the 95th percentile or below the 5th percentile, but it doesn't say above the 95th percentile of local education agencies or below the 5th percentile of local education agencies, does it?
05-1508 +++$+++ 37438 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Alito, I, I think what you, I think it is clear and unambiguous. And the reason is that if you, in order to run a percentile calculation you need units against which to run that, and then you need these, an identified set of variable standards such as they provided here, the average per pupil expenditures of each set of these LEAs or districts. So you rank the, the LEAs. You've got the variable values and then it, it's, the statute provides that you find that you eliminate those LEAs which are above the 95th percentile. And then if you go back to what "such" means and referencing back to other portions of the statute, it's 95th percentile of the revenues and expenditures of the LEAs in the State. It's a very similar process for --
05-1508 +++$+++ 37439 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but what do you distribute?
05-1508 +++$+++ 37440 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Pardon?
05-1508 +++$+++ 37441 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What do you distribute? I mean, I agree you have a, some kind of, let's put something on cards, so you have thousands of cards and each one has a number on it. What are you distributing -- the cards? Are you, are you -- what's distribute -- a 5th percentile refers to some kind of distribution. What's it a distribution of?
05-1508 +++$+++ 37442 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's the distribution of the percent of the, what is --
05-1508 +++$+++ 37443 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is it a thing?
05-1508 +++$+++ 37444 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Like a thing.
05-1508 +++$+++ 37445 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Like a -- like a set of things that you're distributing, what are they?
05-1508 +++$+++ 37446 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The thing that you're running the percentile against is the total number of, of expenditures and revenues in the State.
05-1508 +++$+++ 37447 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In other words, you take all the -- there is a set of numbers, each number is a different number and the characteristic of each number is there some school district that spends per, or takes in per pupil, revenue equal to that number. So we write each one on a card. Is that what we're, is that our distribution? We have like, let's say we have a, a thousand cards. Is that what it is?
05-1508 +++$+++ 37448 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you know, in New Mexico's case you have --
05-1508 +++$+++ 37449 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. No. I'm not, I'm saying what do you think it has to be? What do you think it should be? What are, what is it we are distributing? A simple question, I guess, for a statistician. I unfortunately am not one and can't find one, so I have no idea what this statute means. (Laughter.)
05-1508 +++$+++ 37450 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the, the -- the value against which --
05-1508 +++$+++ 37451 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not a value. I want to know what I'm distributing. And if you don't know I would say that this is, I have never seen a case so much better fitted for relying on the views of an agency.
05-1508 +++$+++ 37452 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Counsel, I thought you said that you did know what it was. I thought you simply quoted the statute, the 5th percentile of such expenditures or revenues in the State. That's what's being distributed.
05-1508 +++$+++ 37453 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but --
05-1508 +++$+++ 37454 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm sorry, I don't know how --
05-1508 +++$+++ 37455 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Such revenues or expenditures in the State consist of, the word "such" obviously refers you back to some prior reference to revenues in the State, and that prior reference in subsection A is a reference to district by district, not pupil by pupil.
05-1508 +++$+++ 37456 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That, that's correct.
05-1508 +++$+++ 37457 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, so in other words we are distributing those cards, it's a set of numbers? If you're certain, isn't it fair to say that this statute is not clear as to what it is you're distributing?
05-1508 +++$+++ 37458 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'm sorry, Justice -- I'm -- Breyer; I'm having a little trouble understanding --
05-1508 +++$+++ 37459 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I -- I thought not. Is there a --
05-1508 +++$+++ 37460 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the question.
05-1508 +++$+++ 37461 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're not certain about the hypothetical but you're certain about the statute, aren't you?
05-1508 +++$+++ 37462 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm certain about the statute. You're provided the variable values that are attributed to each of the LEAs; you rank them; and you provide a percentile. It's a methodology which was described in 1976. It's a methodology employed every day in ranking students and schools.
05-1508 +++$+++ 37463 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yeah -- that -- right. But I unfortunately don't know enough about this subject, so I thought, not being an expert on it, that when you referred to a percentile, you have some group of things, a set of things that's being distributed in a certain order and there is a top of that and a bottom of that.
05-1508 +++$+++ 37464 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
05-1508 +++$+++ 37465 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And if that's what percentile refers to, I just want to know what those things are that are being distributed. And - and that's where I find the ambiguity. And if there is an ambiguity, I guess we are going to take the view of the agency at least as I understand it. So -- so that's why I asked the question.
05-1508 +++$+++ 37466 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ All right. And, and I think I understand the question now, Justice Breyer. Thank you. The units that are ranked or distributed are the LEAs or the school districts. And they are ranked in order of their per pupil expenditures and revenues. Those are the units and the component parts of this calculation that are provided for us by Congress.
05-1508 +++$+++ 37467 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And does the statute say you have to do it that way? It has to be the group that's distributed?
05-1508 +++$+++ 37468 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's my understanding under -- under Brown and Williamson is if Congress speaks to an issue, Congress is to be obeyed.
05-1508 +++$+++ 37469 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Clearly.
05-1508 +++$+++ 37470 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is nothing mysterious about this type of a methodology. And this is the one that Congress chose.
05-1508 +++$+++ 37471 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, you could do it that way and the reason the Government, I think, says that you shouldn't do it that way is that it would produce an absurd result.
05-1508 +++$+++ 37472 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ All right.
05-1508 +++$+++ 37473 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That the object of the statute is to catch the outliers. And if you, for example, had one giant school district like New York City which was at the top of the list and another giant school district that was at the bottom of the list you would cut those two out, and you might have cut out half the pupils in the whole State, and those wouldn't be outliers would they? I mean, that's the problem.
05-1508 +++$+++ 37474 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And you have a similar infirmity associated with the other methodology. That is, if you have a number of LEAs which are small in numbers, as in New Mexico, particularly if you had a number of small LEAs at the bottom, which is I think a huge problem policy wise, you were to cut them out and let them to float off in their poverty. I think, I can understand where there is --
05-1508 +++$+++ 37475 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Doesn't, doesn't subsection b(ii) address outliers? I was surprised there wasn't more discussion of that in the briefing and maybe it's, it's because of some reason I'm unaware of. That says that the Secretary in making this determination can take into account particular types of LEAs where there is extra, additional costs. I would have thought for example if you had a very small LEA with only 20 students and the cost is particularly high because you don't have economies of scale, that you haven't -- that would, could be knocked out for that reason. Is that not how that works?
05-1508 +++$+++ 37476 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. And this is the, the whole problem, that we can argue philosophically how whether Congress's methodology or the Secretary's methodology is better, but the backdrop of this is that the, the statute and also the regulation allows for school, for the States to back out all these disequalizing expenditures so that you, you make an adjustment to more or less end up with a baseline per pupil expenditure. And there is really no reason after you do that for having a wide disparity, even between the top and the bottom LEA. The Secretary's formula, and I don't think we should be arguing whose formula is better, because if they are different, Congress wins, but nevertheless, the Secretary's formula, it eliminates 26 percent of the school districts. And under New Mexico, if you, if you look at the top and the bottom school district even after the eliminating of these funding differentials, you've got a 244 percent disparity.
05-1508 +++$+++ 37477 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It, it eliminates 26 school districts but those 26 school districts account for 5 percent or 10 percent of the pupils. And I guess what we are interested in here is not school districts; they are not a thing -- they are a thing of a kind, but we are interested in students, real people who get money. And so that it, that it -- it eliminates 26 percent of the school districts would see, to be a good thing, not a bad thing, because what we are really interested in are the pupils and it keeps in 90 percent of the pupils.
05-1508 +++$+++ 37478 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And Justice Breyer, I think Congress and in its methodology has disagreed with that view, because it does not rely strictly upon pupils, and pupils are not necessarily the driving force in how we work this formula.
05-1508 +++$+++ 37479 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought the problem was disparity in school districts. Since much of the funding for education is local funding, in some places there are very rich school districts and very, very poor, poor school districts. And I thought that the purpose of this was to make sure that there is not an enormous disparity, not pupil to pupil but district to district. It makes perfect sense, it seems to me.
05-1508 +++$+++ 37480 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that is correct. Because these districts particularly in New Mexico serve a unique purpose. New Mexico has pockets of, of urban and populations, and then they have got small traditional villages; they have got farming communities; they have got Indian lands; they have got military bases. And a school district whether it educates 100 children or 1,000 children or 5,000 children has a special value in the State and in our educational process. And simply because a child in New Mexico attends the school district that does not have particularly many students in it doesn't mean that he has to suffer a poorer education than his brethren and brothers and sisters in the metropolitan area.
05-1508 +++$+++ 37481 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Van Amberg, if there is any ambiguity in the statute, one relevant consideration might be how would this work across States, and I think it's true, is it not, that your reading would lead to wildly different, wildly different results from State to State depending on whether they have large districts or small districts at the top and the bottom, whereas the other way, counting pupils rather than school districts regardless of size, you would get uniformity going from State to State.
05-1508 +++$+++ 37482 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, the Secretary recognized in 1976 that both methodologies have their problems, depending on how your districts, the number of districts that you have in a State, their relative populations, how they line up. And --
05-1508 +++$+++ 37483 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Am I correct in understanding that at the end of the line here, if you win the Federal money will go to your two districts, whereas if the other side wins the Federal money will go to the State? Is that what the bottom line is?
05-1508 +++$+++ 37484 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's the bottom line.
05-1508 +++$+++ 37485 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
05-1508 +++$+++ 37486 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I would point out, Justice Stevens, that Congress has made it clear that the impact aid is supposed to go to the impacted districts. It is not supposed to fund the general educational program of a State. The money that the State, that the State of New Mexico seeks to retain is under a limited exception that has been created and it is, it is not that we are trying to take the State's money as the bottom line. It is that the State has taken the impact aid dollars and doesn't have an equalized system. New Mexico could equalize if it wants to. It established its equalization formula.
05-1508 +++$+++ 37487 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let me ask another general question. If it were true, and I don't think it is in this case, that the biggest district was the one that got the most per pupil money -- the two biggest districts that were at the opposite ends of the spectrum, they would all be taken out, wouldn't they, under your view?
05-1508 +++$+++ 37488 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it actually depends -- you get into statistical approaches, but if, let's say, there were less than 20 districts, you just had let's say 18 districts or 19 districts, then if you do the percentile against, if you work the percentile in that particular setting, nobody gets eliminated.
05-1508 +++$+++ 37489 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you have the same problem if it's students, I take it? You'd have the same statistical question whether you, you use districts or students?
05-1508 +++$+++ 37490 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct, because you would run -- because if you had districts, big districts at both ends, you run your 5 percent on both ends with the students, you end up not eliminating anybody.
05-1508 +++$+++ 37491 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's all right. I wouldn't think that was a problem. But what about Justice Stevens' question. There are 20 districts in our State -- it's exaggerated, let me exaggerate it -- and the rich district has 20, has a quarter of the students, and the poor district has another quarter. So our outliers in that situation which we're eliminating from our calculation are the rich district and the poor district. One's at the top, one's at the bottom. And now we're left with 18 districts to figure out whether they're equalized. But those 18 districts account for less than half or about half of all the students. That's the problem. It seems that isn't very representative and we're trying to get representativeness.
05-1508 +++$+++ 37492 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Breyer, I, I would respectfully like to go back, not to what we are trying to accomplish through judicial decision, but what Congress accomplished through its decision.
05-1508 +++$+++ 37493 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I understand that. If the language doesn't permit it you can't do it, they can't, and you win. But if the language does permit it, the reason -- you have to stretch the language, I suspect, in my view to get to the Government's result. It might just barely permit it. But one of the things on their side is that if we take your view it produces an absurd result, because of what Justice Ginsburg said, because there is such variation in the number of pupils among school districts in different states.
05-1508 +++$+++ 37494 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. If I could address that, Your Honor. The only argument I see the State has is the argument about absurdity. This debate that we're having now is the debate that took place in 1976 in front of the Secretary. He recognized that there were two methodologies that he was considering. He recognized that they both had their problems. But in 1994, Congress had before it at least or had available to it information as to the, whether, what, how this particular formula would work. There were only three and perhaps -- three States, Kansas, Alaska, New Mexico, and perhaps Arizona -- that had -- that were trying to take advantage of the, of this narrow exception. So they knew the configuration and the composition of these school districts. And so they could look if they wanted to -- and there's no legislative history to this, but they could have looked if they had wanted to, to exactly what the practical effect would be of these two formulas. And the practical effect is that in New Mexico the formula which the Respondents contend is absurd reduced only 11 percent of the LEAs. And with the backdrop that this, that these LEAs should have been more or less equalized anyhow because of removing the disparate funding, that's, that's much more reasonable and certainly doesn't reflect an absurdity, and when you compare that to the Secretary's approach which eliminates 26 percent and cuts loose 23 school districts out of 89 from any consideration and you end up with kind of a core block in their 14 or 15 percent disparity, I think there may be those who could argue forcefully that that's an absurdity.
05-1508 +++$+++ 37495 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I see your white light is on. I don't want to take -- would the other States make that same answer that you just made?
05-1508 +++$+++ 37496 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Kansas equalizes under any formula, as New Mexico did, could do. Alaska, you eliminate 22 percent in order for them to just kind of squeak by. If they applied Congress's formula they would just equalize. This is an option I contend that's available to every State that wants to take advantage. If you give them a 25 percent disparity allowance, you allow them to back out disequalizing expenditures. There's really no explanation that's been offered why there's any disequalization at all. With that, if there is any time -- unless there are any further questions.
05-1508 +++$+++ 37497 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. Mr. Srinivasan.
05-1508 +++$+++ 37499 +++$+++ FALSE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court:
05-1508 +++$+++ 37500 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Srinivasan, you don't want us to stretch the language, do you?
05-1508 +++$+++ 37501 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think you need to stretch the language, Justice Scalia.
05-1508 +++$+++ 37502 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you wouldn't urge us to do either, would you?
05-1508 +++$+++ 37503 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it depends on what you mean by stretch. (Laughter.)
05-1508 +++$+++ 37504 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The question, the question before the Court is whether the Secretary's formula is unambiguously foreclosed by the statutory test, not whether it's the better reading, but whether it's unambiguously foreclosed. And we happen to think it's the better reading, but we certainly think it's not unambiguously foreclosed. And maybe the clearest indication that Congress did not unambiguously foreclose the Secretary's methodology --
05-1508 +++$+++ 37505 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's the case that says "unambiguously foreclosed"?
05-1508 +++$+++ 37506 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Brand X says that, but it's a characterization of the step one inquiry under Chevron. And we can use "foreclosed" if you like, Your Honor. But the clearest indication that the statute does not foreclose the Secretary's methodology is a provision that I think hasn't been addressed thus far in the argument and that's that in the very same act in Congress in which Congress enacted Section 7709, the provision at issue here, Congress also explicitly endorsed and incorporated the Secretary's --
05-1508 +++$+++ 37507 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You begin with an argument that directly cuts against your position. They knew how to do it under the -- I assume you're referring to the education finance and incentive grant program?
05-1508 +++$+++ 37508 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I am.
05-1508 +++$+++ 37509 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, they did it there, they didn't do it here. To me that suggests the opposite of the inference you're trying to draw.
05-1508 +++$+++ 37510 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so, Mr. Chief Justice, with respect. There are two education finance incentive grant program, or EFIG, provisions that we identified in the briefs and one of them I would acknowledge is susceptible to that line of argument, although I don't think it's persuasive. But it's the other one that I'm focusing on, and what the other one does is to explicitly incorporate the Secretary's regulations and so what Congress said in 1994 is that for purposes --
05-1508 +++$+++ 37511 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which they did not say in this act.
05-1508 +++$+++ 37512 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They didn't, but I think it would be very odd to attribute to Congress the intention on one hand to say, we like your regulation, so much so that we want to use it and we want you to continue to use it for purposes of the EFIG program --
05-1508 +++$+++ 37513 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Different purposes.
05-1508 +++$+++ 37514 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They're not --
05-1508 +++$+++ 37515 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They're for different purposes.
05-1508 +++$+++ 37516 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They're not different purposes at all, Justice Scalia, with respect. They're the exact same purpose. In both programs what Congress wanted to do was to get an assessment of the extent to which education expenditures were equalized in a State among school districts. They're the very same purpose.
05-1508 +++$+++ 37517 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But for different purposes. In the one case, in this act we're worried about an extensive Federal presence that has an effect on the tax base available for schools and under the EFIG program it's an entirely different question of equalization.
05-1508 +++$+++ 37518 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, at that level of generality you might be right, but with respect to the purpose of the equalization provisions of both of those acts the purpose is exactly the same. In impact aid, just like in EFIG, the question is to what extent has the State equalized expenditures across school districts. It's the very same question.
05-1508 +++$+++ 37519 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, maybe let me ask it directly. If they could so easily just say we incorporate the Secretary's regulation in EFIG, why didn't they do it here?
05-1508 +++$+++ 37520 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, because --
05-1508 +++$+++ 37521 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They instead went to the trouble of mimicking part of the regulation, but not mimicking the appendix, which is where your calculation methodology is.
05-1508 +++$+++ 37522 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they didn't mimic it. They incorporated it. And so far as the argument is that they incorporated just the regulation qua regulation and not the appendix to the regulation, I don't think that that argument can be squared with the statutory text or the regulatory text.
05-1508 +++$+++ 37523 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can I ask, is there a difference legally between a regulation and an appendix to the regulation?
05-1508 +++$+++ 37524 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so, at least not in the circumstance of this case, where the regulation by its own terms incorporates the appendix. And so when Congress incorporated the regulation it necessarily incorporated the appendix.
05-1508 +++$+++ 37525 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you say "incorporated," though. What it did was it took the language and it did not take --
05-1508 +++$+++ 37526 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
05-1508 +++$+++ 37527 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No?
05-1508 +++$+++ 37528 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't think so, Your Honor. The text of the statute in 1994 is set forth at the top of page 30 of the Government's brief, and I'm quoting from the second line of page 30 and what Congress said in the EFIG statute in 1994, again in the very same act that enacted this language --
05-1508 +++$+++ 37529 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In the EFIG statute?
05-1508 +++$+++ 37530 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the EFIG statute.
05-1508 +++$+++ 37531 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in this statute the regulation says look to the, look at the appendix. Congress as I understood when it enacted our statute, it took language from the regulation; it didn't take the part that said look to the appendix.
05-1508 +++$+++ 37532 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it didn't take the part that said look to the appendix because I don't know that that would have been a sensible thing to do when you're enacting a statute. But the point I'm trying to make is that when Congress in the EFIG statute incorporated the regulation it specifically referred to the regulation that the Secretary had in place at that time.
05-1508 +++$+++ 37533 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it didn't do that here?
05-1508 +++$+++ 37534 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It didn't do that here, but it didn't have to. It makes sense --
05-1508 +++$+++ 37535 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I still think it cuts against you rather than for you, the fact that they could have done the same thing here and we wouldn't have this case.
05-1508 +++$+++ 37536 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, let me just make one more point on this, Your Honor, and then I'll move to the text of Section 7709, because I do think that this point has a great deal of force. The reason that Congress would have incorporated the regulation specifically in EFIG but not in impact aid is because we're dealing with an impact aid regulation. So the Secretary ordinarily wouldn't have thought that he should apply the impact aid regulation for purposes of EFIG unless Congress told him to do that and that's what Congress did. But with respect to impact aid, there's no reason to incorporate the regulation. The regulation already existed, and the question is did Congress in this act foreclose the Secretary from continuing to apply that longstanding regulatory methodology. And I would suggest that if Congress really wanted to --
05-1508 +++$+++ 37537 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Srinivasan, if we could come to the, to the text that you're talking about.
05-1508 +++$+++ 37538 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure.
05-1508 +++$+++ 37539 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What I don't understand about the Government's position is why you use this, this per pupil theory for purposes of (B)i), but don't use it for purposes of (A). You, you don't -- in the major computation portions, namely for purposes of paragraph 1, a program of State aid equalizes expenditures among local expenditures, if in the second fiscal year is made the amount of per pupil expenditures made by or per pupil revenue available to, you do it agency by agency, don't you? You DON'T apply this, you know, it depends on how many pupils in each agency. Why don't you do for both?
05-1508 +++$+++ 37540 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if you look at 2(a), Your Honor what that says is that the disparity, the disparity standard at its broadest level deals with whether the per-pupil revenues for the highest ranked local educational agency exceeds the per pupil revenues for the lowest one by 25 percent.
05-1508 +++$+++ 37541 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
05-1508 +++$+++ 37542 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would make no difference if you take into account pupils for that part of the analysis, and here's the reason why. When you take into account pupils with respect to a local educational agency and you weight the local, the figure by the number of pupils served by the local educational agency, the per pupil figure that you're going to attach to each of those individual pupils is the same. It's the same per pupil figure for each one. It's just that you multiply it by the number of pupils. So for purposes of this part of the statute, where you're comparing the highest to the lowest, whether you took into account the number of pupils or not you'd still be dealing with the same two figures. You'd be dealing with a figure that applies to the highest ranked local educational agency and you'd be dealing with a figure that applies to the lowest ranked local educational agency.
05-1508 +++$+++ 37543 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're saying it comes to the same, but the fact remains you don't use that methodology in A, because you don't think the language requires that methodology. And it is the same language in B.
05-1508 +++$+++ 37544 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, there would be -- I don't know that we use one or the other. It's just that there would be absolutely no purpose served by using pupils with respect to --
05-1508 +++$+++ 37545 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the purpose would be to follow the language of the statute, and if you think that the language in B requires this kind of an approach you should take the same approach in A, especially if it makes no difference.
05-1508 +++$+++ 37546 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, no; especially because it makes no difference, because with respect to the B part of it, the 95th and 5th percentile exclusions, it makes all the difference in the world whether you take into account --
05-1508 +++$+++ 37547 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I have a conceptual difficulty, and it may be my limitations with the way you do it. You take students and you assign a per-pupil number to each individual student.
05-1508 +++$+++ 37548 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Effectively.
05-1508 +++$+++ 37549 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I would have thought the per-pupil concept only makes sense if you're dealing with LEAs. They have a per-pupil number because they've got a bunch of pupils. You take individual students, and you know for example in that school district you don't spend the same amount of money on the kindergartner that you spend on the eighth grader. And yet, you give the kindergartner a per-pupil number and the eighth grader a per-pupil number that is the same. It's an artificial association. It makes sense to speak of per-pupil numbers when you're referring to the LEAs because they have so many pupils, they get so much money, you can do the calculation. It doesn't make sense to say, you know, John Smith the kindergartner has a per-pupil expenditure of a thousand dollars. He may have $200 and the eighth grader 2,000, so why are you creating this artificial association and then using, using that methodology?
05-1508 +++$+++ 37550 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's an approximation to be sure, and per-pupil revenues by definition deal with approximations across the swath of students that are covered by local educational agencies.
05-1508 +++$+++ 37551 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it's only -- the reason is to rank them if you have an entity that has a swath of students, the district, that's the way it should be ranked. When you're ranking it by pupils, maybe if you ranked them by pupils and you have the actual numbers of course, which nobody does, your methodology would make sense.
05-1508 +++$+++ 37552 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think what we're really doing, Your Honor, is weighting each figure by the amount of pupils in the school district, and the reason we're doing that is to get a more accurate picture of the extent to which any one school district's per-pupil revenue figure contributes to the overall revenue pictures in the State. And if I could use one example which I think might help to crystallize why it's necessary to do this sort of weighting and why education finance practitioners routinely prescribe that you have to do this sort of weighting in order to avoid distorted results, if you consider the example of a State that has two school districts, and I'll use real examples from New Mexico. One would be the district that has the highest per-pupil revenues in the state, the Mosquero district, in which there's 57 pupils. And the other would be the Albuquerque school district, the largest school district in the State, which serves 84,000 pupils. Now the per-pupil revenues for Albuquerque are roughly $3,000 and the per-pupil revenues for Mosquero, the smaller school district, are roughly $7,000. And if you imagine a State that consists of just those two districts, and you ask the question to pair with the statutory language, what is the 50th percentile, and I'll use 50th just for ease of analysis, what is the 50th percentile of such per-pupil revenues in the State? One answer would be that you take the number for Mosquero, the 7,000 and you take the number for Albuquerque, the 3,000, you split the difference and you say the 50th percentile of per-pupil revenues in the State is $5,000. But I think that would present a very misleading picture of what's actually going on in the State.
05-1508 +++$+++ 37553 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No --
05-1508 +++$+++ 37554 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because --
05-1508 +++$+++ 37555 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, because it's an absurd hypothetical. What is the --
05-1508 +++$+++ 37556 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't -- I -- it is not --
05-1508 +++$+++ 37557 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is the smallest number of districts, what is the smallest number of school districts in a State?
05-1508 +++$+++ 37558 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ One.
05-1508 +++$+++ 37559 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which State has one school district?
05-1508 +++$+++ 37560 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Hawaii. Hawaii has one which is a special case but there are states that have a relatively small number of school districts.
05-1508 +++$+++ 37561 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In the, in the hypothetical you posed why couldn't the Secretary address that disparity under (b)(ii)? In other words, the school district which has only 57 students, it seems to me could be taken out of the calculation under (b)(ii), and then you would be dealing only with more representative school districts, not the special case of the particularly isolated school district or whatever.
05-1508 +++$+++ 37562 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Two points on (b)(ii), Mr. Chief Justice. The first is that by -- by the statutory text, (b)(ii) is over and above what you do in (b)(i,). The 95th and 5th percentiles exclusions. So you first have to do that. But the more relevant point --
05-1508 +++$+++ 37563 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why do you have to do that? Why do you have to do it first? It says you can take into account this -- extent to which the program reflects additional costs in particular districts.
05-1508 +++$+++ 37564 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, my point is simply that under (b)(i) the statute says the Secretary shall disregard local education agencies that are above the 95th and below the 5th percentile. So I think the Secretary has to do that. Now (b)(ii) in some sense could be seen as an additional option for the Secretary over and above the exclusion, but there is a more fundamental point which is that with (b)(ii), it says take into account the extent to which a program of State aid reflects the additional costs. And so what that does is a piggyback on the way that the State approaches the situation. So this, as -- this provision as the Secretary understands it allows it to give effect to a State that gives effect to those sorts of considerations, but it's not an independent grant of authority for the Secretary himself to take those considerations into account.
05-1508 +++$+++ 37565 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Srinivasan, you -- you may have convinced me. I'll stipulate that you have convinced me that the argument that you're arguing for would probably be a better method, but you haven't touched the text of (b)(2)(b)(i) yet, and that's where some of us at least are, are having our -- our problems. Do you agree that in the absence of the other program, I forget the, the acronym for it -- that you really would not have any argument that there is ambiguity in the text here?
05-1508 +++$+++ 37566 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. No. Absolutely not.
05-1508 +++$+++ 37567 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then -- then would you address the text?
05-1508 +++$+++ 37568 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure, I will. It's at page 4a of the appendix of the Government's brief, b -- (b)(i). And what the text says is disregard local educational agencies with per-pupil expenditures or revenues above the 59th percentile or below the 5th percentile of such expenditures or revenues in the State.
05-1508 +++$+++ 37569 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
05-1508 +++$+++ 37570 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Now one point I make --
05-1508 +++$+++ 37571 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So what is supposed to be disregarded are educational agencies?
05-1508 +++$+++ 37572 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-1508 +++$+++ 37573 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right. And the agencies are identified how? How do we identify the agencies that would be disregarded?
05-1508 +++$+++ 37574 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You identify the agencies to be disregarded by first identifying the 59th and 5th percentiles of per-pupil revenues in the State. And then you disregard --
05-1508 +++$+++ 37575 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And we identify their per-pupil revenues, too, don't we? Agencies with per-pupil expenditures or revenues above or below, right?
05-1508 +++$+++ 37576 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but -- and -- but the critical test is the 95th percentile and 5th percentile of such expenditures or revenues in the State.
05-1508 +++$+++ 37577 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that critical test is being applied to an agency which is being identified by reference to per-pupil expenditures or revenues, correct?
05-1508 +++$+++ 37578 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is. I mean there is no doubt that the per-pupil revenues or expenditure figures that lie on the spectrum are associated with the local educational agencies. That's how --
05-1508 +++$+++ 37579 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's not merely that they are associated with. The very definition, the very identification of LEA here is exclusively in terms of per-pupil expenditures or revenues. It's not merely in association. It is a definition, isn't that so?
05-1508 +++$+++ 37580 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so. The --
05-1508 +++$+++ 37581 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then, then what does the phrase with per-pupil expenditures or revenues above 95 or below 5 mean?
05-1508 +++$+++ 37582 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's true that each local education agency has a per-pupil expenditure or revenue. But the critical part of the statute which has 59th percentile or 5th percentile of such expenditures or revenues doesn't foreclose weighting. And I think the point that Justice Alito made bears, which is --
05-1508 +++$+++ 37583 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why doesn't it? It seems to me that the only identification of an entity or person, if you want, to be disregarded is the identification of an LEA, and the LEA is described in terms exclusively of its expenditures or revenues. So why doesn't that foreclose your position?
05-1508 +++$+++ 37584 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we -- two parts to the answer, Justice Souter. First the Secretary's formulation, no less than Petitioner's formulation, does disregard local educational agencies with per-pupil revenues above the 95th and 5th percentiles.
05-1508 +++$+++ 37585 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right. Obviously --
05-1508 +++$+++ 37586 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Where we disagree is in identifying the 95th exactly.
05-1508 +++$+++ 37587 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ After identifying them in terms of the expenditures or revenues. That's what you're supposed to do.
05-1508 +++$+++ 37588 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly. And I'd -- exactly. And I'd reiterate the point that Justice Alito made earlier, which is that Congress could have compelled the approach that Petitioners compelled -- contend, if it would have said --
05-1508 +++$+++ 37589 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There are lots of things that Congress could have done differently from what it did do, but it, that doesn't seem to me to inject an ambiguity in the identification in, in this subsection of the LEA that we are talking about. And it doesn't create an ambiguity in, in the clear provision that what is to be disregarded is an LEA as so defined.
05-1508 +++$+++ 37590 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think it does, Your Honor, because there are two different ways of ranking the LEAs. One is to take the per-pupil revenues associated with each LEA and simply take that list into account. Another is to take the same list but then weight it by the number of pupils in each LEA.
05-1508 +++$+++ 37591 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Sure, that's another way to --
05-1508 +++$+++ 37592 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Nothing in the statute forecloses that approach.
05-1508 +++$+++ 37593 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- do it, but tell me why that is consistent with the text.
05-1508 +++$+++ 37594 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the text refers to the 95th and 5th percentiles of such expenditures or revenues in the State, and the list that includes the weighting does represent a list of expenditures or revenues in the State.
05-1508 +++$+++ 37595 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would such be -- of such expenditures or revenues. That refers back to local educational agencies with per-pupil expenditures or revenues. It's referring you back not to the totality of students but to, to agencies with per-pupil expenditures or revenues.
05-1508 +++$+++ 37596 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure. And I don't, I don't dispute that the per-pupil revenue figures belong to a local educational agency. But again that doesn't mean that you can't take into account the relative extent to which a particular school district contributes to the overall State picture, and the way you do that --
05-1508 +++$+++ 37597 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wouldn't the statute have told you, though, to, to disregard pupils according to the ranking? It does tell you to disregard LEAs, which suggests the ranking -- at least to me, that the ranking ought to be of LEAs and not pupils.
05-1508 +++$+++ 37598 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it is, it is a ranking of LEAs in the first instance and then it's, each of those LEA figures is weighted by the number of pupils the way we do it, and we do end up disregarding LEAs. But as Justice Souter pointed out the first step is identifying the 5th and 95th percentiles, and on that step we take into account the number of pupils. It's only at that step that we take into account the number of pupils.
05-1508 +++$+++ 37599 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask --
05-1508 +++$+++ 37600 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And nothing in the statute forecloses that. I'm sorry.
05-1508 +++$+++ 37601 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- a rather basic question? What if I'm convinced that your opponent's reading is really only the fair reading of the statute, but I'm also convinced by you that that's not what Congress intended. What should I do? (Laughter.)
05-1508 +++$+++ 37602 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, one way or another I think your should rule in our favor. (Laughter.)
05-1508 +++$+++ 37603 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well no. Accept, accept my premises. What do you think I should do?
05-1508 +++$+++ 37604 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think in that situation you sort of have the sliding scale that we often confront with textual analysis. And if you really think that Congress would have compelled an absurd result, and I think it does verge on that, then you would --
05-1508 +++$+++ 37605 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't think it has to be absurd, it's just, I would measure it by what Congress actually intended. Assume there two permissible readings, and two -- both of them make sense. And I'm convinced, assume I'm convinced by you, that they really intended to perpetuate the prior method of procedure. May I take that, may I come to that result even though I think the language really says exactly what your opponent says it says?
05-1508 +++$+++ 37606 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if the language absolutely unambiguously compels that reading, then I think it would be a difficult position. But I don't think it goes, goes to that degree.
05-1508 +++$+++ 37607 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I would have thought your office had answered that question in countless briefs where it tells us to be guided by the language of the statute and not some unexpressed intent.
05-1508 +++$+++ 37608 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's why I said, if you think that the statute unambiguously actually compels that reading, then I don't know that we would have a position.
05-1508 +++$+++ 37609 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you still have a Church of the Holy Trinity team over there somewhere, don't you? (Laughter.)
05-1508 +++$+++ 37610 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why doesn't it -- why doesn't absolutely compel it? Where is the ambiguity, you say?
05-1508 +++$+++ 37611 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It says --
05-1508 +++$+++ 37612 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- the 5th percentile of such per-pupil expenditure. And that --
05-1508 +++$+++ 37613 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
05-1508 +++$+++ 37614 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now how are you going to get that so it doesn't just say just list cards with per-pupil expenditure on it, different ones and take the top five?
05-1508 +++$+++ 37615 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, well it's just the number of cards, ultimately, under your hypothetical, Justice Breyer.
05-1508 +++$+++ 37616 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you have a lot of cards that have the same cards that have the same number? You have a lot --
05-1508 +++$+++ 37617 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They have the same cards, we just have -- they have the numbers, exactly.
05-1508 +++$+++ 37618 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yeah.
05-1508 +++$+++ 37619 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's the same cards with the same numbers. We just add more cards in order to reflect the extent to which each LEA contributes to the overall picture.
05-1508 +++$+++ 37620 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And why, why don't you take the top five where we have 10 percent of the students, let's take the second five and they happens to have the same number on the card as the first five, and why don't they fall in the first 5 percent?
05-1508 +++$+++ 37621 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure I understand.
05-1508 +++$+++ 37622 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. Forget it. (Laughter.)
05-1508 +++$+++ 37623 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sorry.
05-1508 +++$+++ 37624 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can you enlighten us a little bit about how this statute developed?
05-1508 +++$+++ 37625 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure.
05-1508 +++$+++ 37626 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ As far as I know it was the same Secretary of Education when the statute came on the books and when the regulation was kind of readopted, I think it was --
05-1508 +++$+++ 37627 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's right, Justice Ginsburg.
05-1508 +++$+++ 37628 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But there was a peculiar proposal to drop, it was the Secretary's proposal to drop the bottom five. So it was a different proposal, and what was the reason for that? Why keep, keep the 95th percentile but not the 5th?
05-1508 +++$+++ 37629 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, as we point out in a footnote in our brief there was some education finance experts that suggested there would be no reason to retain the exclusion at the bottom of the range, and I think that's because when you have low per-pupil revenues there is a reason not to exclude those figures. But the important point is the material important part of the language, which is 95th percentile of such expenditures or revenues in the State, is exactly what the Secretary proposed and the Secretary of course wouldn't have curtailed his own discretion to continue the same methodology that he had long had in place. Thank you.
05-1508 +++$+++ 37630 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Counsel. Mr. Manasevit.
05-1508 +++$+++ 37632 +++$+++ FALSE +++$+++ MR. MANASEVIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, may it please the Court: I'd like to begin with Justice Ginsburg's question, because I think that that is very illuminating to where we are today. This statute began against a history, an 18-year history where the agency had been delegated by Congress virtually carte blanche authority to devise equalization tests. That was the earlier statute. The agency had three tests at the time. One was the 25 percent disparity test that we see today and there were two other tests. In 1994, what happened was the Secretary proposed to the Congress and the Congress following the Secretary's lead eliminated the two other tests. That's, that's what was happening. And Justice Scalia asked well, why would the Secretary tie his hands? What happened was the Secretary no longer was satisfied or liked the other two tests and eliminated those and proposed the test that he had been using for 18 years to the Congress. Congress adopted that test and that's the test that we have today, the 25 percent disparity test. The difference is that whereas the Secretary had the free rein to develop that disparity test, however he wanted, previously, the Secretary -- the Congress now told the Secretary in disparity, do the following things. First of all 25 percent is the maximum disparity that we are going to allow you, number one. And number two, take out the outliers in a range of 5 to --
05-1508 +++$+++ 37633 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't it -- I'm sorry. Go ahead.
05-1508 +++$+++ 37634 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You know, I really don't care what the Secretary thought he was doing. I mean, it seems to me we have to ask the question, what would a member of Congress who voted on this thing have thought he was voting for, who had, you know, didn't have this history you're giving us. And more importantly, what would a citizen to whom this language is promulgated think the language means? I don't care what the Secretary had in the back of his mind. Why should that make any difference to us?
05-1508 +++$+++ 37635 +++$+++ TRUE +++$+++ MR. MANASEVIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Fair question, Justice Scalia, and that brings us back to the language of the statute, where of course we begin, and we have to look precisely to the language of the statute. The language of the statute, what Petitioners mistake is that the language of the statute here has a two-part process. We don't look at LEAs first. It doesn't say 5th percentile of LEAs. We have to first rank expenditures or revenues in the State. It's above 95th percentile or below 5th percentile of the expenditures.
05-1508 +++$+++ 37636 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of such expenditures or revenues.
05-1508 +++$+++ 37637 +++$+++ TRUE +++$+++ MR. MANASEVIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of such.
05-1508 +++$+++ 37638 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you've got to find out what "such" refers to.
05-1508 +++$+++ 37639 +++$+++ TRUE +++$+++ MR. MANASEVIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And "such" would refer just to the previous usage of that precise term, which is disregard local education agencies with per-pupil expenditures or revenues. So it's that "with per-pupil revenues" that the "such" would refer back to, the most immediate prior reference, so we're still looking at per-pupil revenues or expenditures in the State which we have to rank first. We don't identify LEAs first. It doesn't say 95th percentile of LEAs. It tells us rank per-pupil revenue. The only difference --
05-1508 +++$+++ 37640 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It says disregard LEAs; it then identifies certain LEAs which are to be disregarded. Nowhere does it say disregard pupils.
05-1508 +++$+++ 37641 +++$+++ TRUE +++$+++ MR. MANASEVIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. It says -- it says -- we are disregarding the LEAs. That's the end of the process. But we have to identify the range of value that 5 percent and 95 percent applies to. The range -- the percentiles apply to a range of values. We have in New Mexico, we have 89 amounts of per-pupil revenue per district, we have 89 of those. But we also have 377,000 per-pupil revenues, because a per-pupil revenue repeats for every time that there's a student, and --
05-1508 +++$+++ 37642 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. No. See, that's my conceptual difficulty. It is only per pupil when you're dealing with an aggregation of the pupils. If you're going to break it down pupil by pupil, which is what you do, you don't have a per-pupil number associated with each pupil. You have a number. Nobody knows what it is because nobody knows how much you spend on each individual. We know how much you give to this district, and therefore, the district has a per-pupil number, and therefore, I would have thought a reference to per-pupil numbers suggests you're grouping according to district.
05-1508 +++$+++ 37643 +++$+++ TRUE +++$+++ MR. MANASEVIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, we are not saying that it can't. We're -- all we're saying is that it equally carries both meanings. School finance is an extraordinarily technical area, which is precisely why Congress left this issue to the agency to work this out. When Congress -- when Congress used the terms 5 percent and 10 percent, and again I'm not, I'm not reading Congress's mind to say that when Congress used those terms, those percentiles, Congress must have intended some national uniformity. This is a national program and Congress expects these programs to be applied somewhat uniformly across -- across the country.
05-1508 +++$+++ 37644 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me --
05-1508 +++$+++ 37645 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Go ahead.
05-1508 +++$+++ 37646 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me ask you the same question I asked -- I asked the Government. Why don't you, if this is a natural reading, why don't you apply it to, to 2.A? You don't even think of doing that in 2.A. In 2.A you just look at the individual agency, but it's the same language in 2.A.
05-1508 +++$+++ 37647 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In 2.A, 2.A calls for a different type of comparison. And I also note that in 2.A it refers to percent instead of percentile, which refers to two numbers being compared. Percentile refers to an entire ranking of value, so the processes are somewhat different. Now we're not, I'm not contending that this statute is absolutely clear and a model of draftsmanship, but certainly the meaning of 95th percentile or 5th percentile of such expenditures or revenues is a broad enough term.
05-1508 +++$+++ 37648 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ To include the words per-pupil revenue for each pupil, is that what you're saying?
05-1508 +++$+++ 37649 +++$+++ TRUE +++$+++ MR. MANASEVIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, to --
05-1508 +++$+++ 37650 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How do you want to say it, per-pupil revenue attached to each pupil?
05-1508 +++$+++ 37651 +++$+++ TRUE +++$+++ MR. MANASEVIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I believe --
05-1508 +++$+++ 37652 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Or how do you want to say it then?
05-1508 +++$+++ 37653 +++$+++ TRUE +++$+++ MR. MANASEVIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe simply that the word per-pupil revenue can mean the dollar amount per each agency 89 times, or it can mean repeated each time a student generates --
05-1508 +++$+++ 37654 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What is attached to each pupil? You say the word such is broad enough to include per-pupil revenue as attached to each pupil?
05-1508 +++$+++ 37655 +++$+++ TRUE +++$+++ MR. MANASEVIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Correct. Remember --
05-1508 +++$+++ 37656 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And I don't know where to look to discover if you're right or wrong.
05-1508 +++$+++ 37657 +++$+++ TRUE +++$+++ MR. MANASEVIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, bear in mind -- bear in mind the nature of many education --
05-1508 +++$+++ 37658 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is there any statistical text that you could look at to see it that's the way people use the words?
05-1508 +++$+++ 37659 +++$+++ TRUE +++$+++ MR. MANASEVIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That answer I couldn't answer, but I can tell you that typically in an education statute, funding is distributed on the basis of numbers of pupils. So if the statute says $3,000 per pupil shall go somewhere, the -- the statute means you take that dollar amount and you --
05-1508 +++$+++ 37660 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that must not be right, because otherwise we wouldn't have any disparity to worry about equalization in the first place. Right?
05-1508 +++$+++ 37661 +++$+++ TRUE +++$+++ MR. MANASEVIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we always -- we always will have disparity in the real world and that -- and that's because lots of things cause disparity. In this case actually, local tax revenues are not the cause of disparity because there are no significant local tax revenues at issue here. But disparity happens -- in the top three or four districts in New Mexico you have under 100 students, or slightly over 100 students. In a district that small, minor things, an insurance recovery for example, a couple hundred thousand dollar insurance recovery in a district of 87 students will generate $3,000 of revenue per member for that year. It's a distorting figure. That's precisely what Congress is trying to get rid of. But when Congress says 5 percent, presumably Congress intends that 5 percent to have some uniform applicability across the country and not vary with a State like New Mexico where it would just eliminate five districts. Or in our -- in our neighboring State of Maryland, Montgomery County has the highest per-pupil revenues in the State. It has 16 percent of the population. Under petitioners' view, that -- and it has 24 districts, so that district would be eliminated under petitioners' view. It would completely be eliminated. Yet under our view, the 10 percent would fall within that and we would keep it in. So --
05-1508 +++$+++ 37662 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Don't you think Congress, if Congress is concerned about the, in this provision, about the impact of the Federal presence, and your reading prevents the money that Congress meant to go to those particular districts from actually reaching the districts, I mean, wouldn't we be inclined to read it the way that, let the money get where Congress meant it to go?
05-1508 +++$+++ 37663 +++$+++ TRUE +++$+++ MR. MANASEVIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, because that was on the list of things that I wanted to cover, and I'm sure that petitioners 'counsel inadvertently misspoke. Impact aid never ever gets diverted from the district. Impact Aid goes from the Federal Government pursuant to a formula --
05-1508 +++$+++ 37664 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, sure, but then the question is whether the State can consider it when they're figuring out how much money to give it. So in effect it's diverted.
05-1508 +++$+++ 37665 +++$+++ TRUE +++$+++ MR. MANASEVIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, remember, the State figures a total cost of program for every district starting from zero, number of students and dollars needed to manage those number of students, and the State supplies that amount of money. So where the district gets some of that necessary money from another source, the State under equalization is allowed to just consider that that amount of money, in addition to what the State is going to provide, will provide the entire amount.
05-1508 +++$+++ 37666 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel.
05-1508 +++$+++ 37667 +++$+++ TRUE +++$+++ MR. MANASEVIT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you very much.
05-1508 +++$+++ 37668 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Van Amberg, you have three minutes remaining.
05-1508 +++$+++ 37670 +++$+++ FALSE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice had a question as to whether or not the, an appendix is something different from a regulation or carries a different weight, and I haven't found anything determinative. But I would refer the Court to Young versus Community Nutrition Institute where it identifies something similar to an appendix as an example, and the Court says an example is just that, an example. And I don't think we need the argument to prevail, but we would submit that it is at best confusion, it's confusing that the Secretary would take the body of the methodology proposed by Congress, put it in his, in the body of his regulation, and then refer the public to an appendix in order to, how to work the methodology. And in this appendix, he then flips what Congress intended and what he had in the body of his own regulation. I would also suggest that Congress cannot be presumed even in this instance to not be, at least have some input as to what was happening. In the Senate bill, my understanding is that there was a suggestion that the disparity figure would only be 10 percent and not 25 percent. That didn't make it through but the statute as it was written, and I think lasted for about a year or so, had the disparity amount going from 25 percent to 20 percent. That was subsequently amended and kept back up at the 25 percent level. So the idea that this was not a bill where Congress paid attention, I think, is not a warranted assumption.
05-1508 +++$+++ 37671 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Van Amberg, could a State get to the same result? Let's say your reading of the statute is the only permissible one. By combining school districts, it's no longer going to be the X school district and the Y school district, it will be the XY school district, and then the population would increase. Still only one LEA.
05-1508 +++$+++ 37672 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is a provision, Justice Ginsburg, in the Impact Aid Act, and I think it's 7113, in which it basically says that if the Secretary of the Education perceives that a State is manipulating its LEAs in a way in which to take advantage of the, of this limited exception, it can disregard that action. So I think there is built -- I think Congress was one step ahead of us and recognized that possibility and addressed it.
05-1508 +++$+++ 37673 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you.
05-1508 +++$+++ 37674 +++$+++ TRUE +++$+++ MR. VAN AMBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. With that, thank you very much.
05-1508 +++$+++ 37675 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
05-1541 +++$+++ 37679 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument first this morning in case 05-1541, EC Term of Years Trust vs. United States. Mr. Ainsa.
05-1541 +++$+++ 37681 +++$+++ FALSE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice and may it please the Court: The Defendant, in unequivocal language of section 1346, waives sovereign immunity and permits a refund suit by a third party such as Petitioner. That conclusion that I've stated to the Court was supported by the holding in United States versus Williams. That case, as the Court well knows, dealt with a situation in which the Government sought to recover money through a tax lien as opposed to a tax levy, which is the situation in this case. However, there is no substantive difference between the --
05-1541 +++$+++ 37682 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And why did the court point out twice in Williams that section 7426 was not available?
05-1541 +++$+++ 37683 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, section 7426 was not available in the case of Mrs. Williams, but --
05-1541 +++$+++ 37684 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Because there was no levy. It was only a lien.
05-1541 +++$+++ 37685 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was a lien case, and of course, 7426 involves a levy. But nonetheless, the holding that I have read in that case very definitively deals with the breadth of section 1346. And the breadth of section 1346, according to the holding and United States vs. Williams, is certainly broad enough to encompass a third party like Petitioner. I do not view the fact that 7426 was not available to be a controlling issue because the question was whether or not 1346 would permit a third party to bring a refund action. And that was the holding of the court as I read that opinion.
05-1541 +++$+++ 37686 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But when Congress provides a special remedy for a particular class of persons, that special remedy usually excludes a more general provision.
05-1541 +++$+++ 37687 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, in the case of 7426, Congress never made that remedy expressly exclusive. The language is completely missing from that statute. And the argument was raised in United States vs. Williams that if section 1346 was made available to third parties, like Mrs. Williams, it would render meaningless the short statute of limitations. 1346 offers only post deprivation relief. section 7426 offers both pre and post deprivation relief. So the two statutes can live in harmony and can be harmonized and should not be held to have preempt -- one over the other when there is no express declaration from Congress making that the case.
05-1541 +++$+++ 37688 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The Government does cite the principle that when there's a specific statutory scheme that controls over a more general one. It doesn't cite a tax case for that, at least as I recall. Has that principle ever been applied in the tax code, do you know?
05-1541 +++$+++ 37689 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, I don't believe that's been applied in the tax code, but I can answer your question, I think, by saying this. Congress on many instances has made provisions of the United States Internal Revenue Code exclusive. Congress knows how to write those provisions into the tax code when it wants to do so. In this case, it was not done. And I would also like to point out that after the decision in United States vs. Williams, Congress amended 7426 to add a special provision. And in that special provision, it was made exclusive. And I use that to exemplify the fact that Congress can, when it wants to, make a tax provision exclusive.
05-1541 +++$+++ 37690 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In the law, we don't -- we certainly don't want to deprive any statutory provision of its whole purpose and effect. And as I understand the purpose of this especially short statute of limitations, it is to enable the Government to dispose of the property that it has seized, and to be able to give clear title to it without somebody coming back, you know, many years later and saying this property should not have been taken. How is that purpose served if indeed you can proceed under the provision that has a longer statute?
05-1541 +++$+++ 37691 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, 7426 has four different components. Two of the components are clearly pre-deprivation type remedies. They are the ability of a taxpayer or third party to seek an injunction to prohibit the Government from either selling property or conducting a levy. Those are clearly pre-deprivation. The other two are primarily post deprivation remedies. And so the object that the Government was trying to achieve can be achieved through looking at it from a pre-deprivation/post-deprivation analysis. I don't believe that the Government's underlying purpose is in any way diminished when the two statutes can live in harmony. And without having an exclusivity provision expressly stated in 7426, and given the fact that 1346 on its face plainly waives sovereign immunity for third parties to bring refund suits, the two statutes must be construed --
05-1541 +++$+++ 37692 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But isn't there this difference between the two. One of them -- you're not challenging the amount of the tax in this case, are you?
05-1541 +++$+++ 37693 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I'm sorry. I didn't understand your question.
05-1541 +++$+++ 37694 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're not challenging the amount of the assessed tax, are you? You're just -- whether they can collect it from this particular person?
05-1541 +++$+++ 37695 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Petitioner is not challenging the underlying assessment against the taxpayer.
05-1541 +++$+++ 37696 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And isn't that the basic difference between the two statutes, that one of them deals with a fight about how much money the taxpayer owes, and the other one deals with the method of collection.
05-1541 +++$+++ 37697 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ 7426 clearly prevents a person from contesting the underlying assessment, whereas in 1346, that is possible. But in this case, 1346 is broad enough because it uses the term collected. And just like in Williams, we are not seeking to contest the underlying assessment.
05-1541 +++$+++ 37698 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it does seem to me if you think of the two statutes as performing rather separate functions, one primarily focused at the method of collection, the other the amount of tax, makes quite good sense to have different statute of limitations for the two, because there is an interest in the prompt resolution of the former issue that doesn't apply to the latter.
05-1541 +++$+++ 37699 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, there is certainly -- Government has demonstrated by -- or Congress has demonstrated by passing 7426, that there is an interest in a shorter statute of limitations in certain cases. However, I return to my original argument that if 1346 is broad enough to encompass third party refund suits, and if Congress has not made 7426 exclusive, the two statutes should be allowed to coexist. This Court has held on other occasions that it will not preempt statutes without a very clear expression from Congress. And Congress, once again, knew how to do it after the Williams case.
05-1541 +++$+++ 37700 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I suppose -- tell me if I'm wrong, or the Government can tell me if I'm wrong -- but there is this difference also that in a refund suit, you have to pay the money. The Government has the money before you can bring the refund suit. Am I right about that?
05-1541 +++$+++ 37701 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
05-1541 +++$+++ 37702 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Incidentally, I'm just curious, if the underlying assessment -- if you wished to have challenged the underlying assessment, it's for a million dollars, can you pay $100,000 and then bring the refund suit in order to test the validity of the tax, or do you have to pay the whole amount?
05-1541 +++$+++ 37703 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The whole amount.
05-1541 +++$+++ 37704 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about the underlying principle that waivers of sovereign immunity are strictly construed. And when you have a waiver on the broader statute, but shouldn't you read them together with the specific to suggest that they weren't waiving sovereign immunity when a more specific statute governed, except to the extent of the provisions in that more specific statute.
05-1541 +++$+++ 37705 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, when I read the opinion in United States vs. Williams, the Nordic case was brought up by the dissent in that case, that there must be an absolutely unequivocal waiver of sovereign immunity in order to allow a particular suit against the United States. The holding in United States versus Williams was that 1346 was sufficiently broad. And given that holding, and given the fact that the Government was asserting that Mrs. Williams had other remedies in the form of a quiet title action, a refund action --
05-1541 +++$+++ 37706 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The court took care to point out why those were not realistic remedies. But here there is a prompt and efficient remedy.
05-1541 +++$+++ 37707 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, there is another remedy, which is certainly governed by a much shorter statute of limitations. But in my view, the equities or the facts of the case should not drive the construction of the statute, any more than it did in United States versus Williams. And if 1346 is broad enough to encompass a third party case in the instance of a lien, it is broad enough to encompass it in the case of a levy. There is no functional substantive difference between money taken from a -- from a third party via a lien or via a levy.
05-1541 +++$+++ 37708 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, your argument is probably based on the statute. I just question one phrase you mentioned, which was that Williams was not driven by the equities. It seems to me it was wholly driven by the equities.
05-1541 +++$+++ 37709 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, as I read the holding in United States vs. Williams, the Court found that there was an unequivocal waiver of sovereign immunity in section 1346. And observed afterwards that a person like Mrs. Williams did not have a meaningful remedy. I did not read that to be -- that the construction of the statute was driven by the equities. It was an observation after the fact.
05-1541 +++$+++ 37710 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It was a determination that the word taxpayer encompassed someone who had, in fact, paid the tax. Here you don't even have that, because the tax wasn't paid directly by the EC Trust. The trust deposited the money in the bank, and then the Government levied on it, as distinguished from Williams, where Mrs. Williams, in fact, wrote a check to the Internal Revenue Service covering her husband's tax liability.
05-1541 +++$+++ 37711 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, I believe that both Mrs. Williams and the trust are in the same position. Both of them paid the tax. Both were third parties. Neither was a taxpayer. In the case of Williams, the taxpayer was her husband. In the case of the trust --
05-1541 +++$+++ 37712 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the whole case was about whether she indeed qualified as a taxpayer, having voluntarily paid the tax.
05-1541 +++$+++ 37713 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this case, the levy was an involuntary act on the part of the Government to take the money from EC Trust, from the deposit that was put up.
05-1541 +++$+++ 37714 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. It was an involuntary act, whereas in Williams, she stepped forward and paid the tax and claimed on that basis that she was the taxpayer.
05-1541 +++$+++ 37715 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, the situation in Williams, however, involved the tax lien. Mrs. Williams would not have paid the tax had the Government not asserted the tax lien and forced her to pay the tax out of the proceeds of the house when it was sold. It was no more voluntary than a levy in the sense that I'm talking about.
05-1541 +++$+++ 37716 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why isn't the obvious difference -- I may have missed this -- but you say, in the case, a taxpayer owed some money and the Government via a lien took property from a different person who then had to pay the tax who then had to get rid of the lien and wanted it back. And in this case they did exactly the same thing but they did it via a levy. So you say if the first could sue so could the second. But the difference, the obvious difference, which maybe you have explained and I missed, is that in the second case, namely this case, there is a specific statute that says you have to do it with a levy in nine months, and in the other case there wasn't such a statute. Why isn't that the obvious difference?
05-1541 +++$+++ 37717 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, the answer is because 1346 also permits a third party to bring a refund action. It is not restricted even though there is a specific statute dealing with levies, 1346 was held to be broad enough to -- to encompass the refund action.
05-1541 +++$+++ 37718 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Encompasses a lien for a refund action in the case where you took the property via a lien. And you'd say -- they say, I guess, but it doesn't encompass it when you take it via a levy. Why not? Because of the specific, the same thing I just said. Now I want to be sure I have your whole answer to that.
05-1541 +++$+++ 37719 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My answer to that is there is no substantive distinction between a levy and a lien. And that while Williams dealt with a lien, and I fully understand that, the taking by the Government was just as involuntary under the levy as it is with a lien. And once section 1346 is deemed to be broad enough or held to be broad enough to encompass a refund action, it should encompass an action by the levy. Essentially I'm arguing that the two statutes can coexist together and should coexist together in the absence of a clear declaration from Congress that 7426 is exclusive. I can support my argument by the fact that after Williams, Congress did make, did amend 7426 and did make a specific new remedy and they're exclusive. Congress could have done that at the time 7426 was originally enacted in 1966 but did not do so.
05-1541 +++$+++ 37720 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If your interpretation is correct then are there many such cases where the Government takes property via a levy and the person who wants to sue would get worried about nine months, because obviously he would think I can sue under a -- kind of thing. It's two years. So are there still some where he would have to worry about nine months?
05-1541 +++$+++ 37721 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
05-1541 +++$+++ 37722 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In other words, are -- in your interpretation, does the nine-month statute become meaningless?
05-1541 +++$+++ 37723 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It, it does not become meaningless because 7426 offers certain remedies that are clearly post deprivation such as filing for an injunction to stop the levy, filing for an injunction to stop a foreclosure. Those are still viable under 7426 and would fall within the nine-month period but essentially Congress has permitted two different complementary actions to seek a refund.
05-1541 +++$+++ 37724 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you just -- you just pointed to situations where one to expect action to be taken promptly. You don't want to wait to, to get an injunction against a levy because the Government might be there and levy on the property and then you're out of luck. Where the incompatibility exists is post deprivation, when the nine-month, the interest in having these claims resolved properly is totally defeated if you can get the longer statute of limitations under the general refund statute.
05-1541 +++$+++ 37725 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, if I understand your question you're really talking about the underlying policy of a short statute of limitations driving certain types of --
05-1541 +++$+++ 37726 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's why the code has that nine-month period instead of the two-year or in fact four-years because you have to go to the administrative process first. The whole purpose of the nine-months is to get people to act quickly.
05-1541 +++$+++ 37727 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I can say to you that with some degree, I think, of sound legal argument, that once 1346 was found to have unequivocally waived sovereign immunity for third party refund actions in the context of a lien it should also follow that it waived sovereign immunity for levies because there is no fundamental legal difference between the manner in which the money is extracted from the third party. There is no, the core logic of the decision in United States vs. Williams is that money was involuntarily taken from Mrs. -- from Mrs. Williams.
05-1541 +++$+++ 37728 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It doesn't seem to me that the fact that there is a waiver of sovereign immunity with regard to levies answers the statute of limitations question. Sure, there is a waive of sovereign immunity, but the question is how long does the -- how promptly do you have to act?
05-1541 +++$+++ 37729 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, the -- the issue of the statute of limitations I believe is dependent upon whether or not 1346 provides for remaining a viable method of seeking a refund. And my position is that if 1346 does provide that in the context of a levy, then you have in effect two statutory schemes which coexist; one is 7426 and one is 10 - uh, 1346. It is true that they overlap in the sense that there is a refund provision that could be sought under either one of them, but 7426 is distinctly different in that it offers pre-deprivation relief that is not offered under 1326.
05-1541 +++$+++ 37730 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Getting back to my earlier question, if there is a million-dollar tax liability, and there is a levy on the bank account for $100,000, do you have to pay the extra 900,000 before can you bring the refund suit?
05-1541 +++$+++ 37731 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-1541 +++$+++ 37732 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So that's, that's also a difference.
05-1541 +++$+++ 37733 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. In this case, it wasn't a million dollars, it was $3 million and the entire amount was paid in order to bring the refund suit.
05-1541 +++$+++ 37734 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What if the amount wasn't paid and what if your client just sat back and the, the assets, or let's say some real estate were, were seized by the Government. Would the 1346 action still lie? Or is it only for return of money that, that's been paid to satisfy the tax?
05-1541 +++$+++ 37735 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ 1346 in my view would not apply to that situation, in that if property was seized and used to, under a tax lien, if that was seized and the Government proceeded to sell, then the third party, Petitioner, would have to file for an injunction to stop the foreclosure sale under 7426.
05-1541 +++$+++ 37736 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that's the, it seems to me the principal problem that the Government was facing and justified the short statute, wasn't it? That is the need to get, to be able to convey clear title to this property that it has seized. But once -- once the money is put up, and what the Government has taken is in effect payment of the tax, maybe there is no harm in proceeding under 1346.
05-1541 +++$+++ 37737 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia --
05-1541 +++$+++ 37738 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm helping you.
05-1541 +++$+++ 37739 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is no harm in proceeding under 1346 once the money is paid because you're dealing with a simple refund action. You're not dealing with trying to stop a foreclosure suit or stop a levy. You're dealing with a simple foreclosure action.
05-1541 +++$+++ 37740 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but there may be situations where the Government, having levied, doesn't feel the need to pursued other remedies available to it. And if you then allow a challenge to the levy to come in later the person they would have proceeded against if they didn't have the levy may have left the country, may have dissipated the funds that they would otherwise go after. They need to know early on that they are barking up the wrong tree if they have levied on the wrong property, and that's why you have a short statute to clear that up as soon as possible.
05-1541 +++$+++ 37741 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, there is rationale for having a short statute, but once again I point out that you have two statutory schemes which appear to be able to be harmonized and coexist together. 1346 constitutes or at least the language is clear and unequivocal in its waiver of sovereign immunity for a third party who desires to collect a tax that's been taken from that third party. And with that construction, it seems to me that only Congress can -- can deal with the question that you've just raised, if Congress wants to make it.
05-1541 +++$+++ 37742 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The -- the, the statute that you point to talks about taking a civil action against the United States. When there has been a wrongful levy, is that right?
05-1541 +++$+++ 37743 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ 7426.
05-1541 +++$+++ 37744 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It doesn't say an injunctive action. So I would reading it think it encompasses both actions for injunctions, which are rare, probably, and what I think is not rare at all, an action for damages or money back. Now your reading of the statute takes that whole ordinary case, where people are just suing to get back some money, and it says our nine-month statute of limitations here is meaningless. All it applies to are injunctive actions which I bet are far and few between. You can tell me I'm wrong on that.
05-1541 +++$+++ 37745 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
05-1541 +++$+++ 37746 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I won't say you've made it meaningless but you have eviscerated it. Is that fair?
05-1541 +++$+++ 37747 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, it is fair. And it's fair for this reason, that in the Williams case the very --
05-1541 +++$+++ 37748 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, is my characterization fair? (Laughter.)
05-1541 +++$+++ 37749 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You want to say no to that. (Laughter.)
05-1541 +++$+++ 37750 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the Williams case, the very same argument was raised, that 7426 would be rendered meaningless if, and other, the quiet title action and other actions would be rendered meanings less if 1346 was construed to allow Mrs. Williams to have a third party action.
05-1541 +++$+++ 37751 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why would it have? Because there I think we are talking about liens and it doesn't cover liens, the specifics statute.
05-1541 +++$+++ 37752 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Government contended that Mrs. Williams had remedies available to her, certainly not a levy, because there was no levy, but the Government was contending she could have sought relief under the Quiet Title Act. She could have sought relief by posting --
05-1541 +++$+++ 37753 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the Government -- and the opinion points out that if she had gone the quiet title route she would have lost the advantageous -- she would have had to make. She could never complete a quiet title suit within the time that she needed to execute this sale.
05-1541 +++$+++ 37754 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, I, I know you've found that in the opinion. But at the same time I'm pointing out that the Government was contending that the Quiet Title Act was available to Mrs. Williams, and also that she could have simply put the money up. And -- put the money up, and the land would have been released and there was an argument over whether the secretary would have discretion to turn her down. But the point is there were other remedies out there, and they were not deemed --
05-1541 +++$+++ 37755 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the, and the opinion suggests -- not merely suggests, determines -- that those other remedies, unlike 7426 in cases where it applies, were ineffective. The Government raised other remedies and the Court said they were ineffective.
05-1541 +++$+++ 37756 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The other remedies I understand were determined to be not meaningful in the opinion of the Court. But I'm pointing out that argument was raised and rejected. And it was rejected because, because 1346 as I understand it has a life of its own, so to speak, and it was construed to be an unequivocal waiver of sovereign immunity. And I return to my original buoyant that if that is the case then the two statutes most coexist together. Mr. Chief Justice, if there are no further questions I would like to reserve the remainder of my time for rebuttal.
05-1541 +++$+++ 37757 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Counsel. Ms. Maynard.
05-1541 +++$+++ 37759 +++$+++ FALSE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court. When Congress creates a specific remedy for a specific situation that remedy forecloses resort to a more general remedy when that general remedy would frustrate the purposes of the specific remedy.
05-1541 +++$+++ 37760 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you have a citation for that as would apply to the Internal Revenue code?
05-1541 +++$+++ 37761 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. The A.S. Kreider decision that we discuss in our brief is about was whether or not the sorter statute of limitations, ironically, in the case for refund suit, applied, rather than the broad general Tucker Act statute of limitations. And this Court held that the specific controlled over the general because Congress was entitled to provide more specifically in a particular situation when the need called for it.
05-1541 +++$+++ 37762 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Was, was the more specific statute there enacted after the more general statute?
05-1541 +++$+++ 37763 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Both of those statutes, it's been a long time, Your Honor. I'm not, I'm not totally --
05-1541 +++$+++ 37764 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The reason I ask is we -- we do have a principle which I think is a sound one, that repeals by implication are not fatal. And what you're saying is that the enactment of the more narrow statute impliedly repeals the cause of action that existed under 1346. Do you know if any of your cases that you cite, even those outside of the Internal Revenue field, involve more specific statutes enacted after the general statute that they supposedly limit?
05-1541 +++$+++ 37765 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure if they answer that precise question, but --
05-1541 +++$+++ 37766 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I guess --
05-1541 +++$+++ 37767 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the implied repeal analysis is not the proper analysis to apply here, because the proper principle is that the specific remedy forecloses resort to the more general remedy, when two things are true.
05-1541 +++$+++ 37768 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, that's certainly true when the two are enacted at the same time, obviously. Or even when the, when the general is enacted after the more specific one and does not thereby limit the more specific one. But, well --
05-1541 +++$+++ 37769 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In -- in this Court's case, if I can answer your, the principle of your question, Your Honor, which is that the replied repeal doctrine is not the proper analysis here because the specific controls the general.
05-1541 +++$+++ 37770 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If 7426 had not been enacted, wouldn't this case have fallen within 1346 as interpreted by Williams.
05-1541 +++$+++ 37771 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we would certainly have a more difficult argument here if that were the case, Your Honor. But Williams' specific withholding was -- didn't answer the question at issue here, because it only held that a person who had been subjected to a lien, involuntarily paid it under duress, could be a taxpayer within the meaning of 1346. But it didn't answer the question here, which is whether or not when Congress has provided specifically for parties in Petitioner's situation and created a remedial scheme that would be wholly frustrated --
05-1541 +++$+++ 37772 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What could you point to in the language of 1346 that would take this case outside of 1346 as interpreted in Williams?
05-1541 +++$+++ 37773 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would be a difficult argument to make, that it doesn't fall within the erroneously or illegally collected tax. But that was the same case in A.S. Kreider. That was the same language in A.S. Kreider, the erroneously collected tax. Yet the Court held that the more specific refund statute of limitations there applied.
05-1541 +++$+++ 37774 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But if this case would have fallen within 1346 as interpreted by Williams until -- then you must be arguing that 1346 was in part impliedly repealed when 7426 was enacted.
05-1541 +++$+++ 37775 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ One can look at it that way, Your Honor. But I think if one looks at it that way then I think this Court's cases in Brown and Block are how you apply the implied repeal analysis when a specific statute would be wholly fully frustrated by application of a more general statute. And that's particularly true where it's uncertain at the time Congress enacted the specific statute.
05-1541 +++$+++ 37776 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't, I don't see how you can say there's frustration. Perhaps I'm missing something. It seems to me that for years the Revenue Code has had two basic schemes. One is you can contest the liability before you pay the money. The other is you pay the money and sue for refund. And one requires you go to the Tax Court and the other district court and so forth. So these are two different schemes and here you have to -- we are advised that even if there was a levy for $100,000 you, couldn't contest it unless you paid the extra 900. So those are two very different schemes. Am I wrong about that?
05-1541 +++$+++ 37777 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they are two very different schemes, Your Honor, and one is for the situation that Petitioner faces, which is a third party whose property is levied upon to collect the taxes of another, and it has its own venue provisions, its own jurisdictional provisions, its own short statute of limitations. Importantly, however --
05-1541 +++$+++ 37778 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Of course, because the Government doesn't have the money. But in the refund suit the Government has the money.
05-1541 +++$+++ 37779 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no, Your Honor. In a levy suit the Government often does have the property.
05-1541 +++$+++ 37780 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Often does, but not necessarily, and doesn't have to have all the amount.
05-1541 +++$+++ 37781 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not -- I think, Your Honor, the Flora requirement, which is a judicially interpretation on the refund statute which requires you, a taxpayer to pay all of its tax liability for a given year before it can bring a refund statute challenge, actually supports our argument here because it shows how complicated it would be to apply that scheme when you're talking about a party who doesn't owe the tax. We haven't -- the Government has not assessed the tax against the trust here. It believes the trust is a nominee or alter ego of the taxpayer and the -- the wrongful levy statute has a short statute of limitations for the precise reason that if we seize the property of the trust the Government needs to know promptly if the trust claims it's not the taxpayer's property because the Government, as the Chief Justice indicated, will cease going after the taxpayer if it believes it has already collected the tax from someone else that it believes to be holding the money for the taxpayer, which is different and crucially different than in a refund suit, as Justice Stevens alluded to, because in a refund suit where the taxpayer brings the challenge and has paid the tax, at the end of that suit either the Government has to pay the money back to the taxpayer in a refund or the Government gets to keep the tax and that's the end of the matter. In a third party challenge, whether the third party brings it pre- deprivation or post-deprivation, the Government's interest is knowing whether or not the third party has taxpayer property or not. Because if it turns out that it's not the taxpayer's property the Government needs to pursue the taxpayer. And Congress accounted for that not only in 7426 by the short statute of limitations, but also for the expression suspension of the Government's period of time that it can pursue the taxpayer. The, the section 7426 expressly suspends the time period during the running of a third party challenge whether that's pre or post deprivation. In addition, the -- if I can go back to Justice Scalia, I would like to impress upon you why we don't believe the implied repeal doctrine is applicable here, and not only is it because the specific controls the general when it would be wholly frustrated as it would be here by both the statute of limitations provision and its express suspension, but also because the availability of the general remedy was uncertain at the time that Congress passed -- and for the purposes of the implied repeal doctrine that's the proper analysis: What did the 1966 Congress think it needed to say in order to make this the exclusive remedy? The state of the law at the time --
05-1541 +++$+++ 37782 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Pre-Williams you're talking about?
05-1541 +++$+++ 37783 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, in 1966, Your Honor. The state of the law at the time when the Congress was deciding how to write this provision, there was certainly no authoritative pronouncement that, that the, that third parties could bring a suit, and indeed the law that --
05-1541 +++$+++ 37784 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why does that make your argument stronger? If Congress didn't think that 1346 applied, then surely it didn't intend to repeal it.
05-1541 +++$+++ 37785 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the cases say it matters what the Congress saw at the time it passed the statute in Brown and Block. But the reason it does matter as a logical matter is that the state of the law was such that third parties couldn't bring a refund suit under 1346. The actions that had been allowed, Your Honor, were against the IRS officials and those were expressly replaced by the statute. Congress expressly replaced them in section 7426(d) and (e), which is on 12a of our, of our petition. So that shows that Congress did intend to make this the exclusive remedy. The other reason why I think you can --
05-1541 +++$+++ 37786 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Did you make that argument, did the Government make that argument, in Williams?
05-1541 +++$+++ 37787 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Did we make the argument in Williams?
05-1541 +++$+++ 37788 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, that -- that Congress had enacted another statute which presumes that there is no cause of action under 1346?
05-1541 +++$+++ 37789 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the Government conceded in Williams that 7426 was not available to Ms. Williams there because she had only been subjected to a lien, not a levy. So the remedies the Government was pointing to in that case as exclusive of the 1346 remedy were the quiet title action and a discretionary --
05-1541 +++$+++ 37790 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but even if it wasn't available to her, the fact that there was another statute the whole premise for which is the unavailability of a remedy under 1346, it seems to me that would have, that would have strengthened the Government's case in Williams.
05-1541 +++$+++ 37791 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we did point to the statute, Your Honor, and suggest that the Congress had made it available. I think the other reason why the implied repeal doctrine is not the right analysis here is that section 7426 did not withdraw any substantive rights. This, the trust here is simply trying to take advantage of another remedial provision, 1346, and rename its cause of action. They're bringing exactly the same -- their complaint is substantively identical to the complaint they brought in their first action.
05-1541 +++$+++ 37792 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It looks like it's the same in the Kreider case. I can't tell, I don't know. But this case was a specific statute of limitations acted after the general refund statute, right?
05-1541 +++$+++ 37793 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Your Honor.
05-1541 +++$+++ 37794 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And in the prior case it seems to be a specific statute that was enacted in 1926. I just got it out of the library. They give it to us, you know, if you ask them.
05-1541 +++$+++ 37795 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Bless them, Your Honor. (Laughter.)
05-1541 +++$+++ 37796 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And it was the 1926 code and it concerned 1926 income, so it must have been brought, the suit, fairly close to when that was enacted. And the general provision was a general judicial code provision having to do with general statute of limitations and, no, it doesn't say. It looks -- I mean, it sounds as if that had been long in existence.
05-1541 +++$+++ 37797 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe it had been. It was a Tucker Act provision. Thank you. That would be the answer to your question, Justice Scalia. But in direct response to the question you started with, Justice Breyer, Congress -- the general statute of limitations for refund actions did already exist. In fact, the Government believes it's significant when Congress passed 7426, instead of referring to that specific provision, it placed in the same section of the code a shorter statute of limitations specifically for these actions. It created a new subsection and said 7426 actions must be brought within 9 months.
05-1541 +++$+++ 37798 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So why was it so hard for them to say that this is an exclusive remedy, as they have done in other situations?
05-1541 +++$+++ 37799 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As I indicated, Your Honor, at the time there was no authoritative pronouncement. If even --
05-1541 +++$+++ 37800 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's even all the more reason for them to say. I mean. If there's confusion about what remedies are available and they want it to be exclusive, it's easy enough to say that.
05-1541 +++$+++ 37801 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the remedies that have been allowed by the courts, Your Honor -- and we believe, in the absence of any appropriate waiver -- but the actions that have been allowed have been allowed against IRS officials, and Congress did expressly replace those, on 12a, in 7426(d): "No action may be maintained against any officer or employee of the United States."
05-1541 +++$+++ 37802 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, again that suggests that they know how to spell out exclusivity when they have it in mind, and they didn't do it with respect to the availability of an action under 1346.
05-1541 +++$+++ 37803 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true, Your Honor. But I think for purposes of trying to discern the intent of the 1966 Congress one has to look at the state of the law in 1966. And there was no reason to believe and certainly no authoritative pronouncement at the time that 1346 covered this type of action, and I don't think --
05-1541 +++$+++ 37804 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So the Williams decision came like a bolt out of the blue, then?
05-1541 +++$+++ 37805 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's probably how the Government viewed it, Your Honor. But certainly I don't think one should ascribe for purposes of implied repeal, in other words to assume a presumption, by making the Congress prescient of what this Court was going to decide in 1995. And I certainly wouldn't concede, although the Petitioner would like to argue, that Williams' holding is as broad as it is. Williams was about a very particular situation, a woman, as I said, who had a lien placed on her, and the Court didn't answer this question of whether someone who had, as Justice Ginsburg indicated, who had a levy placed on there, could be a taxpayer within the meaning of 1346 as this Court held in Williams. Justice Kennedy, also on your question about the tax code, although we don't cite it in our brief, Estate of Ramani is another case in which this Court had in effect held that a specific provision in the tax code, in this very Tax Lien Act, took priority over a more general provision that had to do with the priority of the United States' claims. And that's Estate of Ramani, 525 U.S. 517. I believe if there are no further questions, the Government would ask the Court to find that 7426 is the -- except I have one more thing to add. Getting lots of help today from all quarters.
05-1541 +++$+++ 37806 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Hungar has a further question.
05-1541 +++$+++ 37807 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I beg your pardon?
05-1541 +++$+++ 37808 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Hungar has a further question. (Laughter.)
05-1541 +++$+++ 37809 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He wants me to point out to the Court that, in addition to -- it's always nice to have help. In addition to the great American Federal Savings & Loan case, Justice Scalia, which indicated that the implied repeal analysis is not appropriate when you're talking about a subsequent simply remedial provision that doesn't withdraw substantive rights, the Court in a case authored I believe by Your Honor, Rancho Palos Verdes, in footnote 2 made that same point last term.
05-1541 +++$+++ 37810 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I forgot about that footnote. (Laughter.)
05-1541 +++$+++ 37811 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Hungar might have questioned your memory. If there are no further questions, we would ask that the Court affirm.
05-1541 +++$+++ 37812 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Ainsa, you have 5 minutes remaining.
05-1541 +++$+++ 37814 +++$+++ FALSE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Government argues that A.S. Kreider has relevance to this case and I will submit to the Court that it does not. The analysis in A.S. Kreider about a more specific statute following a general statute controlling was based upon the peculiar syntax of the statute in question. The analysis in A.S. Kreider was that the more general statute was phrased in the negative and that therefore all it did was set an outside time limit that Congress was free to shorten with a subsequent statute. We do not have that situation in this case. There was -- there is no similar analysis that you can apply to 1346 and 7426.
05-1541 +++$+++ 37815 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And both statutes in Kreider I take it applied to the refund suit?
05-1541 +++$+++ 37816 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1541 +++$+++ 37817 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So there were two statutes bearing on the same remedy.
05-1541 +++$+++ 37818 +++$+++ TRUE +++$+++ MR. AINSA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Two statutes bearing on the same remedy. And I submit that the A.S. Kreider analysis is not relevant here. The Government ALSO relies on Brown versus the General Services Administration for the proposition that a very detailed, complete, balanced, structured statute will control over a more general statute, and the argument is of course that 7426 is that type of statute. But the problem is in the Brown case we were dealing, the Court was dealing, with the Civil Rights Act and the Civil Rights Act was clearly the first piece of legislation that had been enacted by Congress to remedy Federal employment discrimination. It was a brand new remedy. In the case before the Court today, 7426 was a response to a particular issue that was raised in 1966 and that was that claimants who desired to seek redress from the Government when their property was taken were suing the director. They were suing the tax collector. This was just a statute to give them a remedy directly against the Government. It wasn't creating a brand new situation. It was clarifying that now you could sue the Government directly as opposed to the tax collector. And in fact, the Federal Tax Lien Act prohibited suits against Government officials, as was previously the practice in the United States. And so it's, this issue of implied repeal with the shorter statute I don't believe is apropos to the situation that confronts us here. And I would like to also simply conclude my argument with regards to the Government's contention that the Government needs to know. In this particular case the tax years in question were 1981 through 1984. The Government did not assess the taxpayer until 1993 and 1994, 12 years after the first tax year. The government did not levy until 1999, which was 18 years after the first tax year. During this time the Government knew, very clearly knew, what the situation was in this case and for whatever reason did not take prompt action. Therefore, on behalf of the Petitioner, I ask that you reverse and send this case back to the district court for proceedings under the refund statute.
05-1541 +++$+++ 37819 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Ainsa. The case is submitted.
05-1575 +++$+++ 37824 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in 05-1575, Schriro versus Landrigan. Mr. Cattani.
05-1575 +++$+++ 37826 +++$+++ FALSE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The Ninth Circuit's rejection of a reasoned State court factual determination and decision is improper under any deferential standard of review, and it is particularly improper under the highly deferential standard of review required under the AEDPA. This morning I'd like to try to develop three -- three points. First, the State court's factual finding that Landrigan instructed his attorney not to present any mitigating evidence was not an unreasonable finding and, in fact, is the most logical interpretation of the record. Although Landrigan now argues that the record does not show whether his decision not to present mitigation evidence was knowing or voluntary, that is not a claim that was ever developed in State court. He never alleged in his State post-conviction proceedings that that, his decision to do that was not knowing or voluntary. Secondly, an evidentiary hearing is unwarranted in this case --
05-1575 +++$+++ 37827 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask about the first one? Does the Constitution require there be no involuntary?
05-1575 +++$+++ 37828 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would require that it would be knowing and voluntary, yes.
05-1575 +++$+++ 37829 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So if the record showed that he didn't get, there wasn't a procedure followed to voluntarily waive those Constitutional rights, wouldn't the district court be able to reexamine that?
05-1575 +++$+++ 37830 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there's no colloquy requirement for a defendant to waive presentation of mitigation. And I think it would have been enough if the defendant or defense counsel had simply said my -- if the attorney had said my client has instructed me not to present any mitigating evidence, and that would be adequate. If a defendant chooses to make a claim that his waiver was not knowing or voluntary, the burden would shift to him to do that in a post-conviction proceeding, and he did not do that in this case.
05-1575 +++$+++ 37831 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How would he make such a claim in this case where in open court he was asked by the judge, right, with nobody twisting his arm, whether it was the case that he did not want any mitigating evidence introduced? And he said, right, yes, that's correct?
05-1575 +++$+++ 37832 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree, Your Honor. It would be very difficult for him to make that argument and I suspect that's why the argument was not raised in the State post-conviction proceeding.
05-1575 +++$+++ 37833 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I don't know if you got to the third point you were going to make. You were outlining three different points. But it seems to me that from the very start, what happens is that you and your brother for the respondent are talking past each other. You want to talk to us about the adequacy of the State court's finding. The respondent says what we -- all we want is a hearing in the district court, and those are two different issues. We want a hearing in the district court, i.e., so that we can show the findings are insubstantial or incorrect. Those, it seems to me, are two different issues, and I sense the briefs are talking past each other on this point. Did you see the same thing?
05-1575 +++$+++ 37834 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I did, Your Honor, and I think the reason for that is, in our view an evidentiary hearing is not necessary because the factual finding by the State court obviates the need for one. An evidentiary hearing would be developing evidence that would never have been presented. Given this factual finding, the State court is in effect saying no matter what counsel might or might not have developed, it would not have been presented at sentencing because this defendant specifically instructed his attorney not to present any mitigating evidence.
05-1575 +++$+++ 37835 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In your view, what is the standard for when the district court may hold an evidentiary hearing? I know there's an element of discretion in it.
05-1575 +++$+++ 37836 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ A district -- the district court can order an evidentiary hearing if the defendant has been denied an opportunity to develop relevant facts necessary to resolve a colorable claim in State court. And I think here the defendant fails on two different points. First --
05-1575 +++$+++ 37837 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's the only time the district court can hold a hearing?
05-1575 +++$+++ 37838 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it has to be through no fault of his own and if the facts were not developed in State court. Certainly it's the petitioner's obligation, a defendant's obligation to present these claims in State court and the only -- the reason --
05-1575 +++$+++ 37839 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but it seems that if he doesn't do that, then that's a bar. But if he has done that, when can he ask for a further hearing?
05-1575 +++$+++ 37840 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but that's the point here. He has not done that. He did not attempt to develop facts or he was not precluded from developing facts that would be relevant to a resolution of his ineffective assistance claim. If I could, Your Honor, there are two different parts of that question. First, the facts are not relevant. The facts that he's seeking to develop in an evidentiary hearing is this additional, this mitigation that should have been developed. If, in fact, his avowal that he did not want any mitigation to be presented is accurate, then these other facts are not relevant.
05-1575 +++$+++ 37841 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but isn't that the problem in your argument? Because your argument assumes, and I think you said this quite candidly a moment ago, that once there has been a finding that he informed the court that he did not want mitigation evidence presented, that in effect is a matter of -- binds him as a matter of law for all time. And what he is saying here is look, if I had known that there was this kind of mitigating evidence, as opposed to what was proffered to the court at the end of the trial in fact, I would not have made that waiver, if you want to call it that. I would not have made that representation to the court. And what I want is an evidentiary hearing to show that, to show that in fact, when I said to the court no mitigating evidence, I didn't mean this. And he wants a hearing for that. The only way it seems to me that you can properly win on the issue that he thus raises is exactly the way that I think you said a moment ago. That once there is a finding that he made a statement, whatever its predicate, a statement that I don't want any mitigating evidence presented, that is the end of the issue as a matter of law. My question is, do you have any authority for that?
05-1575 +++$+++ 37842 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Simply the AEDPA 2254(e). I don't have a specific case that also would go directly to that point. Your Honor, I would also --
05-1575 +++$+++ 37843 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Justice Souter's question highlights an ambiguity in this Ninth Circuit opinion, for me anyway. Do you understand the hearing that they directed to be on the waiver question, or is the hearing that they directed on the alleged mitigation evidence that he now wants to present?
05-1575 +++$+++ 37844 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It seems to me the hearing is directed at presenting all of the mitigation evidence that he now wants to present.
05-1575 +++$+++ 37845 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Doesn't it have to go to both? Because I mean, he's saying look, first I want to show that there's a certain kind of mitigation evidence that was not proffered, that I didn't have in mind, that I wouldn't have objected to. And he then wants to proceed with respect to his inadequacy of counsel claim based also on the existence of this kind of evidence that counsel didn't look to. There's a dual purpose, I thought.
05-1575 +++$+++ 37846 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would agree with that, but Your Honor --
05-1575 +++$+++ 37847 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I wouldn't agree with it. I thought that the Ninth Circuit had been very clear that it did not agree with the district court's determination that he had waived mitigating evidence. I thought the Ninth Circuit simply disagreed with that finding and remanded for a hearing on the mitigating evidence.
05-1575 +++$+++ 37848 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1575 +++$+++ 37849 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't that so? I mean, that's what that -- one of the reasons the case was here, that the Ninth Circuit simply smacked down a district court factual finding that he had waived any mitigating evidence. Isn't that what happened?
05-1575 +++$+++ 37850 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor.
05-1575 +++$+++ 37851 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it wasn't remanding for a hearing on whether he had waived mitigating evidence. It made the determination that he had not waived it, and then remanded for investigation into what that mitigating evidence would be.
05-1575 +++$+++ 37852 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know that it's completely clear as to what the Ninth Circuit is saying can be developed and how that evidence can be used.
05-1575 +++$+++ 37853 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it's clear at least that they disagreed with the finding of the district court that there had been a waiver, no?
05-1575 +++$+++ 37854 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Your Honor, and I think --
05-1575 +++$+++ 37855 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So it's clear that they disagreed that the finding was necessarily dispositive. Is anything clear beyond that? I mean, I guess I'm hesitant to say I'm raising the same question that the Chief Justice did, about the ambiguity of what the court did. I mean, there's no question that they found that the -- the State trial court's finding with respect to waiver or whatever we want to call it was not necessarily dispositive. I don't think it's clear that they found anything beyond that, but correct me if I'm wrong.
05-1575 +++$+++ 37856 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Ninth Circuit ordered an evidentiary hearing to allow him to develop whatever mitigation he's proffered in Federal court.
05-1575 +++$+++ 37857 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right. But that could have, as we said a moment ago, that could have a dual purpose. One to show the, in effect, the inadequacy or the nondispositive character of the State court's finding; and two, to show relief for inadequate assistance of counsel. And the question here is that, the immediate question is what exactly did the State court find with respect to -- oh, sorry -- what exactly did the Ninth Circuit find with respect to the State court finding? And there's no question that the Ninth Circuit assumed that the State court finding was not necessarily dispositive, but I don't know that it's clear it went beyond that, and that's where perhaps you could help me if I'm wrong.
05-1575 +++$+++ 37858 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the Ninth Circuit clearly held that the State court's determination of the facts was unreasonable. And that's the problem with its decision because if the determination of facts was reasonable, it obviates the need for any further evidentiary hearing.
05-1575 +++$+++ 37859 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, on the waiver point, let's assume that this case had not come in -- come here, and you had gone back to the district court pursuant to the order of the Ninth Circuit. Surely you would have taken the position, or you could have taken the position if the evidence developed that way, that he really knew or should have known about all this mitigating evidence and he waived. You certainly could continue to take that position in the district court.
05-1575 +++$+++ 37860 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1575 +++$+++ 37861 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the district court would say I now have a more full, factual record, and I make the finding that there was knowing waiver, or there wasn't.
05-1575 +++$+++ 37862 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but the point we've tried to make is that he was allowed an opportunity to develop his claim about whether his -- whether he made that statement and whether he intended to instruct his attorney not to present any mitigating evidence. He submitted an affidavit where he said, if my counsel had told me there was this evidence of a genetic predisposition to violence, I would have allowed that to be presented. The court -- there was no need for an evidentiary hearing because the court simply accepted -- accepted as true that Landrigan would have provided that testimony.
05-1575 +++$+++ 37863 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, how could the district court on remand find that there was a valid waiver when the Ninth Circuit says on A-17, the appendix to the petition, for all the foregoing reasons, Landrigan has not waived the right to assert a claim for ineffective assistance of counsel?
05-1575 +++$+++ 37864 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think you're correct. The Ninth Circuit has specifically found that the determination of facts was unreasonable and found that Landrigan has established a colorable claim of ineffective assistance.
05-1575 +++$+++ 37865 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it has not waived. Not that the district court was -- didn't have enough evidence before it. It says the foregoing, Landrigan has not waived the right to assert a claim for effective assistance. So how can you possibly say that that question is still open?
05-1575 +++$+++ 37866 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I --
05-1575 +++$+++ 37867 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The district court has to accept that he hasn't waived. And what it's sent back for is for all of the facts that show -- that show he had ineffective assistance of counsel.
05-1575 +++$+++ 37868 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let me ask this question. It seems to me that there are two separate parts to the waiver issue. One, did he intend to say I don't want to put on any mitigating evidence? But then the second part of the question is, was that statement made knowingly and voluntarily, just as a guilty plea or something like that has to be. So is it enough for you to say it's clear what he intended, or is it also part of your burden to say that that intent was expressed in a way that was knowing and voluntary, compliant with the rule that applies to waivers of constitutional rights?
05-1575 +++$+++ 37869 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it's clearly enough simply to say that, as I indicated, even if it had just been an avowal by the attorney that this defendant has instructed me not to present mitigating evidence, that that would be enough.
05-1575 +++$+++ 37870 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is that a sufficient waiver without inquiring as to whether it was a knowing and intelligent waiver, that he knew what he could put in, and so forth and so on?
05-1575 +++$+++ 37871 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it is, Your Honor. I think to the extent that the defendant wants to raise that, he can raise that in a State post-conviction proceeding. He should make that type of argument in the post-conviction proceeding. And that's not what he did here. An analogous situation is that -- came up in a case that the defense, that Landrigan has cited, Iowa versus Tovar. And this Court expressly noted that the time to raise a claim -- that case involved whether it was a counsel -- it was a decision to waive counsel at a plea proceeding. And this Court noted that the time to raise that is in a post-conviction proceeding, and that the burden shifts to the defendant to raise that issue. And here if you look at the, the petition for post-conviction relief, if you look at the affidavit that Mr. Landrigan submitted, there, there is nothing in there that suggests that "I did not understand what I was doing when I instructed my counsel not to present mitigation. I, I did not understand the concept of mitigation." There's nothing in there to suggest that. So I would --
05-1575 +++$+++ 37872 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't there something that, isn't he saying implicitly Justice Souter implicitly "I didn't have this kind of evidence in mind; if I had been aware of this kind of evidence, I wouldn't have given that instruction?" So he is, it seems to me, implicitly saying well, my waiver was not knowing, in the sense that I understood there was this kind of evidence and intended to preclude its introduction? Isn't that clear?
05-1575 +++$+++ 37873 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's clear he is saying that I would have permitted one type of mitigating evidence.
05-1575 +++$+++ 37874 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that's the same thing, isn't that the same, a way of saying that to that extent my waiver was not knowing?
05-1575 +++$+++ 37875 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He, he's raised to it that extent as to that particular piece of mitigation. And the trial court is expressly saying I disbelieve you when you say you would have allowed presentation of that mitigation.
05-1575 +++$+++ 37876 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And he's saying if you will give me a hearing, district court, I will try to demonstrate to you why, why the State court's finding on that point was unreasonable. The State court made that finding based on its observation of me at trial and, and at the sentencing phase; but it didn't give me a, a further chance to develop my evidence on, on post-conviction. And I want a hearing to develop that evidence in front of you, Federal district court, in order to prove that the State court's finding in light of that evidence was unreasonable. Isn't, isn't it correct that that's what he's asking for now?
05-1575 +++$+++ 37877 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He is, Your Honor, but I would suggest that there is no further evidence that was presented that he was attempting to present in State court regarding whether his waiver was knowing or voluntary.
05-1575 +++$+++ 37878 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How would -- how do we know that?
05-1575 +++$+++ 37879 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ How do we know we know that? Because of the, the affidavit he submitted. And he, he's required to submit an affidavit to establish a colorable claim. And, and he's required to allege in his post-conviction petition that his waiver is not knowing or voluntary. But the burden is on the defendant --
05-1575 +++$+++ 37880 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you, I don't think you mean this, but you're not arguing that he just omitted the magic words not knowing and voluntary?
05-1575 +++$+++ 37881 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think, I don't think he just omitted them. I think he was not raising that claim.
05-1575 +++$+++ 37882 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but, I thought a second ago you -- you admitted that to a degree he was, because he is saying implicitly if I had known about this kind of mitigating evidence, I wouldn't have waived. Therefore, my waiver was, as to this, not a knowing waiver.
05-1575 +++$+++ 37883 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He raised that as to that one aspect of mitigation. But it would have been very simple for him, a simple matter for him to argue I didn't understand the whole concept of mitigation. I didn't understand what I was doing.
05-1575 +++$+++ 37884 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Look, it would have been a better affidavit, it would have been better pleading. We can stipulate to that. But is there, I don't see there is any serious question that he is arguing right now that as to this kind of evidence, had I known about it I wouldn't have waived and therefore, I shouldn't be precluded from, from getting it in now. And, and if there's no question about that, then -- then I think we're just fighting about words.
05-1575 +++$+++ 37885 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think the issue was resolved by the State court's factual determination that Landrigan was not credible even in making that assertion that I would have allowed presentation of genetic predisposition of violence.
05-1575 +++$+++ 37886 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And he says in the district, he says in the district court: I want a hearing to show that I was credible. So credible that the State court finding should be seen as an unreasonable resolution of a factual issue. I want a hearing. That's all he's asking for, isn't it?
05-1575 +++$+++ 37887 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would just suggest that there is no further evidence other than putting Landrigan on the stand to say --
05-1575 +++$+++ 37888 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's pretty good evidence, isn't it? I mean, he may be a believable witness on this point. I don't know.
05-1575 +++$+++ 37889 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think there was any need for an, for the trial court to put Landrigan on the stand having already presided over Landrigan's trial and sentencing.
05-1575 +++$+++ 37890 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If he wants, if he wants a hearing on that, we'd have to reverse the Ninth Circuit, right? Because the Ninth Circuit held that he didn't waive --
05-1575 +++$+++ 37891 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
05-1575 +++$+++ 37892 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- this claim?
05-1575 +++$+++ 37893 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
05-1575 +++$+++ 37894 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The part of the opinion that Justice Alito quoted on page A-17.
05-1575 +++$+++ 37895 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That, that's right, Your Honor. And I think that's why this case should be relatively straightforward. Because the Ninth Circuit, the Ninth Circuit's finding, that the State court unreasonably found that, that Landrigan expressly instructed that his attorney not present any mitigation, given that -- that's the problem with the Ninth Circuit's opinion. Everything else builds on top of that. If that's an incorrect holding, then the rest of the ruling is, is incorrect.
05-1575 +++$+++ 37896 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even if it is incorrect, if we -- we don't know precisely what he meant by the words he said, why doesn't that argue even more strongly for a hearing? At the hearing he wants to introduce, doesn't he, his stepparents, or foster parents, a school teacher, the various others? And he'll say anyone who listens to those people will see that I have the most horrendous upbringing anyone could have. The worst you've ever heard. And my argument is that if only my lawyer had looked into this at that moment in the trial, he would have said in the sentencing proceeding, look what I can present for you. And if he had done it and told me that, anyone would have said, "of course, present it." And I want a chance to show that that's true of my case. Now, why shouldn't he have a hearing on that? No hearing was given him in the State court.
05-1575 +++$+++ 37897 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the problem with, that Your Honor, is that he didn't ask for, for a hearing to present testimony from, for example, his biological mother and his ex-wife, who would have presented the very evidence --
05-1575 +++$+++ 37898 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In State court he didn't.
05-1575 +++$+++ 37899 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In State court in the --
05-1575 +++$+++ 37900 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I mean, is the requirement such that when you ask for a hearing in a State court on a general matter, "I would like to show through a hearing," then he gives a whole lot of affidavits of the kind of thing he's going to produce, that then the State says "no," you go into Federal court and say "I'm roughly going to do the same thing, I have a few extra witnesses, some of the people say some extra things," no, you can't do that?
05-1575 +++$+++ 37901 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there is a requirement in State court that you plead with specificity what type of claims you're raising in a post-conviction --
05-1575 +++$+++ 37902 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Didn't he say my claim is ineffective assistance?
05-1575 +++$+++ 37903 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Ineffective assistance --
05-1575 +++$+++ 37904 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yeah. Because he didn't investigate to discover the horrendous circumstances in which I was raised, and had he done it, he would have found roughly this kind of thing, and I would like to show that he should have done that because it would have changed the result?
05-1575 +++$+++ 37905 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, his argument at State court was not that he didn't investigate that; his argument in the post-conviction proceeding was he could have presented that through some other witnesses. The -- his argument at the trial -- at the post-conviction --
05-1575 +++$+++ 37906 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's not what I understood his argument that he wants to raise to be. In his affidavit, it is a different argument. It is the biological component of violence. "Look, my grandfather was convicted, my father was convicted," and so the mitigating evidence he wants to present at sentencing that is I'm biologically predetermined to commit crimes.
05-1575 +++$+++ 37907 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The criminal gene argument.
05-1575 +++$+++ 37908 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That -- which is certainly an ambiguous argument to present in mitigation at a sentencing hearing.
05-1575 +++$+++ 37909 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly. And that is, that is the main point I'm trying to make is that that was the only thing he was asserting in his post-conviction proceeding, was that "I would have liked have raised this argument that I'm generically predisposed to violence." The rest of the argument I think would have been frivolous because it was so obvious that he had restricted, he had limited his counsel's, restricted his counsel from presenting the very type of evidence that we're talking about now, this other type of evidence.
05-1575 +++$+++ 37910 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought all that evidence was basically before the district court anyway. Didn't the district court know about all of that when it made its ruling?
05-1575 +++$+++ 37911 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor and the trial court knew about it when it made its ruling.
05-1575 +++$+++ 37912 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the district court had a proffer, but the district court but had not heard witnesses, it had not heard evidence.
05-1575 +++$+++ 37913 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, but the focus here is on the reasonableness of the State court's factual finding.
05-1575 +++$+++ 37914 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Sure, but the reasonableness of factual findings depends on what the evidence is that can go in on the issue of reasonableness. And there's a universe of difference between a proffer of evidence which the district court says "well, I'll assume that," on the one hand, and on the other hand, the actual presentation of witnesses perhaps including Landrigan himself, which the court actually hears. You know, you, sometimes you get a lot more impressed by real evidence than by assumptions you make for the sake of argument. And that seems to me a world of difference.
05-1575 +++$+++ 37915 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't necessarily disagree except that we're -- the focus has to be on what the claim was that was raised in the State post-conviction proceeding; and --
05-1575 +++$+++ 37916 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The only thing, but the -- the -- I guess on that point, my only, my only reason for raising this with you is on that point, it's not enough to say well, the district court assumed this. Or for that matter, the State trial court assumed this. That is not the same thing as putting in the evidence.
05-1575 +++$+++ 37917 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Except in this case we certainly had the trial court that presided over the sentencing and had seen Landrigan in person and was uniquely qualified to make a credibility assessment regarding the points that Landrigan made in his affidavit, that "I would have allowed presentation of genetic predisposition."
05-1575 +++$+++ 37918 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask what might be an awfully elementary and stupid question? But -- it seems to me that there's no question about the facts of what he said. And you can interpret him saying I don't want any mitigating evidence put it. But isn't it clear that the waiver of the right to put in any mitigating evidence at a capital sentencing hearing is a constitutional right of very important dimensions? And can that right be waived if the record does not show whether or not he knew the full right of -- that is available to every defendant in a capital case? Namely, he had been advised by his counsel he could put in all sorts of stuff. Is there anything to show that there was that kind of waiver here, on the face of the record?
05-1575 +++$+++ 37919 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There, there's not a specific colloquy that goes through --
05-1575 +++$+++ 37920 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then it is, as a matter of law, an ineffective waiver. Isn't the Ninth Circuit dead right, not factually, but just as a matter of law, that you cannot waive this right unless the record shows that he's fully advised of the scope of the right that he's waiving.
05-1575 +++$+++ 37921 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first, there's no authority that I'm aware of that would require any type of a specific colloquy. I think this record --
05-1575 +++$+++ 37922 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's new to me also. I never heard of it.
05-1575 +++$+++ 37923 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I think that would be --
05-1575 +++$+++ 37924 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But why should it be, why should there be a less complete colloquy for this kind of waiver than a guilty plea itself? Now I admit there's no authority on the point. But isn't it absolutely obvious?
05-1575 +++$+++ 37925 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think the reason there's no need for one is because a defendant can come in and if he really believes that his waiver was not knowing and voluntary, he has an opportunity to pursue that type of claim in a post-conviction proceeding. And he can come in and proffer whatever evidence he wants to proffer if, in fact, that's his claim, that he didn't understand --
05-1575 +++$+++ 37926 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Some kind of waivers, like waiver to the right to counsel, we do indeed require a colloquy, because a defendant is not likely to know what consequences of foregoing counsel are. So the judge discusses with him and, you know, points out what a -- what a significant decision that is. But it doesn't take a whole lot of smarts to answer yes or no to the question, you know, "do you agree that your counsel should not introduce any mitigating evidence?" I mean, it's clear on, on its face.
05-1575 +++$+++ 37927 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would agree, Your Honor. And I think --
05-1575 +++$+++ 37928 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But doesn't that assume that the defendant know what mitigating evidence is? I mean, this defendant, I suppose wants to show, "I thought mitigating evidence was just going to be what the, these two relatives were going to testify to. There was really much more, if my counsel had investigated." And that's not a knowing waiver.
05-1575 +++$+++ 37929 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that type of argument was belied by what, what happened at the time of sentencing.
05-1575 +++$+++ 37930 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, unless the argument is, and maybe this is what the other side its going to argue, that -- that when you make waiver of all mitigating evidence, knowing as any person knows who's reached that far in the criminal process what mitigating evidence is, you must know, in fact, all of the elements of mitigation that could have been introduced. Which will almost never be the case. So that it's always possible after waiving the right to introduce mitigating evidence to come into the court a year later and say, "Oh, my goodness, here's the sort of mitigating evidence I didn't know about at the time. My grandfather was a criminal. I didn't realize that at the time. And now I want" -- you know -- "therefore my waiver was uninformed" and, you know, we go back to square one and try the case again. That would always be possible, wouldn't it?
05-1575 +++$+++ 37931 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I agree, Your Honor. And it's because the nature of mitigation is so open ended, it would be difficult to explain precisely and have a waiver of every conceivable item of mitigation.
05-1575 +++$+++ 37932 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And so are you, are you in effect then saying that the waiver does not need to be a knowing waiver in the sense that it needs to be based upon an appreciation of all the possible mitigation evidence that in this case might come in? Are you saying it need not be knowing in that sense?
05-1575 +++$+++ 37933 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think a defendant needs to understand the nature -- the basic nature and concept of mitigation. But this case provides a good example --
05-1575 +++$+++ 37934 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you're not answering my question. I -- we all agree that he needs to understand the basic concept of mitigation. Does his waiver have to be a knowing one in the sense that I just described? Or doesn't it? What's your position?
05-1575 +++$+++ 37935 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does have to -- it does not have to be knowing as to every conceivable aspect of mitigation.
05-1575 +++$+++ 37936 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And it will nonetheless kind him if he comes in later and says look, I accept the fact that it's my burden to show at this point that my waiver was not a knowing one, and that there us mitigating evidence that I would have let in? Are you saying that he simply as a matter of law cannot say that? Or cannot be heard to say that?
05-1575 +++$+++ 37937 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He is bound by that, Your Honor. And if I could --
05-1575 +++$+++ 37938 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So -- so the answer to my question is yes?
05-1575 +++$+++ 37939 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1575 +++$+++ 37940 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ As a matter of law, he cannot do what he is trying to do here?
05-1575 +++$+++ 37941 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1575 +++$+++ 37942 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
05-1575 +++$+++ 37943 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And Your Honor, l think here we have a situation where the defendant is now trying to proffer evidence that is inconsistent with what counsel was trying to present at the time of sentencing.
05-1575 +++$+++ 37944 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you are -- what you are saying is that it was sufficient when he said, I don't want my lawyer to introduce mitigating evidence, and the trial court said, do you know what that means, and he said yes?
05-1575 +++$+++ 37945 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-1575 +++$+++ 37946 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That doesn't have to be fleshed out at all, unlike a Rule 11 colloquy. To see if he really understands? Do you know what that means, and he yes and that's the end of it?
05-1575 +++$+++ 37947 +++$+++ TRUE +++$+++ MR. CATTANI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that is sufficient, Your Honor. And again, here he's now raising this claim of genetic predisposition. The sentencing memorandum that counsel submitted attempted to pore Landrigan as someone who is basically a good person who committed this crime because he was under the influence of alcohol and drugs. This new type of evidence -- and the sentencing memorandum -- and you'll see that Landrigan had been evaluated by an expert, who had said he didn't have any mental deficiencies.
05-1575 +++$+++ 37948 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. Mr. Verrilli.
05-1575 +++$+++ 37950 +++$+++ FALSE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: I'd like to begin by clearing up what exactly we did and didn't argue with respect to waiver and what exactly is and isn't before this Court on that set of issues in our judgment. I then would like to spend a couple of minutes on what I think the Ninth Circuit did and what effect that would have on this Court's disposition of the case. And if there's any time remaining. I'd like to turn to the question of whether we have asserted colorable claims that warrant an evidentiary hearing here, which is all that we're asking for. Now, with respect to this question of whether we pursued or didn't pursue waiver, I'm afraid counsel for the State is just wrong about this. It's important to understand how this comes up. We asserted a claim for ineffective assistance of counsel, deficient performance and prejudice. The State asserted as a defense to that claim: No, no, he's waived. And the trial judge, the State habeas judge in the State court conviction ruling, agreed with that and said, well, yes, he's waived. We then filed a petition for rehearing in which we said, no, you can't rely on that defense because it's got to be a knowing and intelligent waiver under Johnson against Zerbst. That's at page 92 of the joint appendix. That motion for rehearing was denied without any further comment. We then took a petition to review to the Arizona Supreme Court. That's also in the joint appendix and I believe the page cite is 101 and 102, in which we specifically argued that you can't look to this so-called waiver as a defense to our claim of ineffective assistance because it wasn't knowingly and intent. Now, in the State's response to our petition, which unfortunately is not in the joint appendix but is in the record, the State says: No, this waiver is binding and, furthermore, you're procedurally defaulted because this procedure was decided on direct review. But the one thing the State does not say is that you raised this Johnson against Zerbst issue too late, it can't be considered. We then went to --
05-1575 +++$+++ 37951 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Excuse me. I'm looking at page 92 of the joint appendix. I don't, I don't see that.
05-1575 +++$+++ 37952 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I may have the wrong page.
05-1575 +++$+++ 37953 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's rather important, don't you think?
05-1575 +++$+++ 37954 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. I will find it for Your Honor. I'm sorry for the delay here. The motion for rehearing is, I'm sorry, 99, and on 102 is where we raise it, and then subsequently -- then subsequently we raise it --
05-1575 +++$+++ 37955 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that effective? Does the court have to entertain a motion for rehearing?
05-1575 +++$+++ 37956 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it doesn't have to, but, Your Honor --
05-1575 +++$+++ 37957 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't it your obligation to raise it in your original motion rather than in a motion for rehearing?
05-1575 +++$+++ 37958 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there's no -- but the point is that's not -- when we took this to the Arizona Supreme Court that's not an argument that the State made in opposition to our raising Johnson against Zerbst. Then when we got to the Federal district court we raised this again, this exact argument in Federal district court, and the State in Federal district court didn't object that we had failed to raise this appropriately in the State proceedings. We took it to the Ninth Circuit. They didn't raise the objection that we failed to raise it appropriately in the State proceedings. The first time that question has even been raised here is in the reply brief on the merits in this Court. And I think that's tied to the next point I want to make, which is significant, which is as the case comes to this Court the Ninth Circuit has ruled that we have met the requirements of 2254(e)(2) and are therefore entitled to an evidentiary hearing. Now, what the State is essentially saying is, well, no, you really aren't entitled to an evidentiary hearing on this set of issues because you didn't raise them adequately in the State court.
05-1575 +++$+++ 37959 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And is it just an evidentiary hearing on his biological pre determination to commit violent crime or an evidentiary hearing on the waiver question?
05-1575 +++$+++ 37960 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ On both, Your Honor.
05-1575 +++$+++ 37961 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why did -- the court on page A-17 ruled that there was no waiver. So why would they then send it back for an evidentiary hearing on waiver?
05-1575 +++$+++ 37962 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me move to that if I could, because I do think that's significant. I think the Court has elucidated the two potential readings of the Ninth Circuit's decision. It seemed to us as we prepared this case on the merits that the reality is that the two, the issue of performance and the issue of waiver, are tied together, because if it comes out after a hearing that counsel did perform an effective job, a diligent job of performing the investigation, and did instruct the client as to what the mitigation evidence was, then you view the waiver in a different light than of course you would if the counsel hadn't. So we acknowledge here that the proper disposition of this case ought to be a remand for an evidentiary hearing.
05-1575 +++$+++ 37963 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that wasn't your assertion even in this motion for a hearing. It wasn't that he didn't know what he was giving up. It was rather the sentencing transcript, you say, "does not establish that Petitioner knowingly, voluntarily, and intelligently waived his right to present mitigating evidence. Rather, it shows that Petitioner gave up that right without thought, in the heat of anger, and in frustration with his attorney during that particular proceeding."
05-1575 +++$+++ 37964 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We're trying to establish there, Your Honor --
05-1575 +++$+++ 37965 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that was a factual matter best, best disposed of by the judge who was present at the time. And he didn't think it was in the heat of anger. He did think that it was a valid waiver. Now, you're raising a totally different issue. You're saying, oh, he can't waive validly without knowing all the elements of mitigation that the waiver might embrace. That wasn't the argument you were making here.
05-1575 +++$+++ 37966 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I want to respond directly to Your Honor's question, if you'll just permit me one more thought about the Ninth Circuit and I'll turn right back to that.
05-1575 +++$+++ 37967 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
05-1575 +++$+++ 37968 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So in other words, we are making a more modest request for relief here which, is affirmance of the judgment sending back for an evidentiary hearing, but with a recognition that the evidentiary hearing ought to deal with the issue of waiver, which should be understood to be left open. I think we're conceding something here, that waiver ought to be left open and not definitively resolved. It's premature to definitively resolve that against the State without an inquiry. Now, turning to Your Honor's point, the -- with respect to whether there was a waiver here or not and what the State judge did or didn't do, something very significant here that I think the State's argument just overlooks. There's an assumption in the State's argument that Landrigan's conduct at the sentencing hearing itself was a waiver and considered to be a waiver. But if one looks at the transcript of that hearing, and this is D to the appendix to the petition and beginning at page D-4 -- D-3 is where the colloquy occurs where this alleged waiver happened. The very next thing that occurs, the very next thing that occurs, is the trial judge says: Okay, I want to hear from the mitigation witnesses. Then the mitigation witnesses say: Well, we're not going to testify. Then the very next thing that occurs is the trial judge says: Well, I want a proffer of what they would have said. Then when -- then when all that's said and done, the trial judge says to the lawyer -- - and this is at D-15 -- you got anything else, and the lawyer says, no, Your Honor, that's all I've got, all I've got is what's in the sentencing memo and these two witnesses. Then the judge proceeds to pass sentence. That's the -- the particularly important pages are D-20 and 21, and on those pages you will see that what the judge does is not treat Mr. Landrigan's statements as a waiver, because if she had treated those statements as a waiver what she would have said is, well, here's the aggravation case, Mr. Landrigan has waived mitigation, he has a right to do that.
05-1575 +++$+++ 37969 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is belt and suspenders, that's all. The -- I don't think any judge likes to decide a case just on the basis of waiver. This judge is saying he waived it and even if he hadn't waived it there's nothing there --
05-1575 +++$+++ 37970 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I respectfully --
05-1575 +++$+++ 37971 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- because he wasn't bringing in at this point the biological -- by the way, biological proclivity to violence is a mitigating factor rather than an aggravating factor?
05-1575 +++$+++ 37972 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me address your second question first and then your first question. I think that that in two senses does not accurately represent what this mitigation case presented to the State court and presented to the Federal court is all about. With respect even to his affidavit, which I don't think fairly under Arizona procedure can define the full scope of his claim, but with respect to that affidavit alone, what it says is not genetic predisposition. It says the "biological component of violence." That's the language that Mr. Landrigan's affidavit uses.
05-1575 +++$+++ 37973 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but the prior paragraph says it's because of the history of his biological grandfather, biological brother, and biological child. That suggests to me it's a genetic claim and --
05-1575 +++$+++ 37974 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But one other thing it does that's very significant, Mr. Chief Justice, is it also says that these witnesses can attest to the use of alcohol and drugs by the biological mother when Landrigan was in utero.
05-1575 +++$+++ 37975 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but he knew about that. He knew about that mitigating evidence at the trial because his biological mother was there.
05-1575 +++$+++ 37976 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but what he's saying that he would have agreed to, it seems to me the only fair reading in this affidavit, which again I don't think fairly defines the full scope of what he's allowed to proceed with under Arizona procedure, but with respect to this affidavit he's saying, well, if you had had an expert who could have come in and given testimony about fetal alcohol syndrome and the organic brain damage and other impairments that it causes, I would have cooperated with that. And that's really significant because if you look at page D-21 of the appendix to the petition --
05-1575 +++$+++ 37977 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How could that be helpful to him if he doesn't allow his biological mother to testify about drug and alcohol abuse? What use would the expert be if the potential predicate --
05-1575 +++$+++ 37978 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because all the biological mother would have had to do was to give that information to the expert. That's a routine matter, for experts to gather factual information and assimilate it into an expert opinion and then provide it to the court. That could have happened easily here. And I think it's very significant because on page 21 you'll see that the trial judge makes a fundamental error about this exact issue. She says: Well, I'll grant this, I'll take the mother's testimony as a proffer. I'll consider the possibility of fetal alcohol syndrome, but all fetal alcohol syndrome establishes is that the kid will also have a predisposition to addiction.
05-1575 +++$+++ 37979 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The defendant would have been happy to have his biological mother talk with the expert, but was unwilling to have his biological mother say the same thing in court?
05-1575 +++$+++ 37980 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure, and I don't think there's anything unreasonable about that. Those are very different experiences, but --
05-1575 +++$+++ 37981 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't understand. It seems unreasonable to me. He was trying to spare his mother, what, the nervousness of testifying in court? That's what he had in mind?
05-1575 +++$+++ 37982 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If I -- whatever else happened, the trial judge here considered this evidence of mitigation and did a weighing. And the key point I want to make sure I make here is that therefore any evidence that this lawyer had prepared, an expert on fetal alcohol syndrome most prominently and any other evidence, the trial lawyer could have proffered at the time and had considered at the time and had weighed at the time by this trial judge. And that's a claim of prejudice, it seems to me, that even if one grants, even if one assumes -- and we dispute it and I'd like too talk about that -- but even if one assumes that there is a finding and we can't do anything about it that Landrigan would not have cooperated in the presentation of any --
05-1575 +++$+++ 37983 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, do you think it's possible to have a valid waiver of the presentation of mitigating evidence or is it always possible that some additional evidence would come up and you say, what if I had known that, I wouldn't have waived it?
05-1575 +++$+++ 37984 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think there's a yes or no answer to that question. It's something --
05-1575 +++$+++ 37985 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You can't give a yes answer to whether it's ever possible.
05-1575 +++$+++ 37986 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Yes, it's possible. It's certainly possible.
05-1575 +++$+++ 37987 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
05-1575 +++$+++ 37988 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I think I don't -- I want to make sure I don't leave any implication that the rule we're asking for here is going to open the door to lots of claims, because I don't think it does for two sets of reasons. One is a procedural set of reasons and that's the -- that, we refer the Court to the Blackledge against Allison decision -- that if -- that it's not going to be enough in every case for you to plead an adequate claim and then jump right to an evidentiary hearing. As the court said in Allison, the district court has available to it a number of tools that it can use to test the claim before granting an evidentiary hearing. So there's a limitation there. Now --
05-1575 +++$+++ 37989 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Could you do it concretely, Mr. Verrilli, for this case. The defendant is being rather obstreperous and says: I don't want any mitigating evidence; I'm a really bad guy. And that's how he's trying to portray himself. What -- you said, and you allow for the possibility that there could be a knowing waiver of mitigation. What would have had to transpire in this case to make it a knowing waiver?
05-1575 +++$+++ 37990 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's important, and hopefully it will help explain why we think that this is a narrow -- that the rule we're asking for here is a narrow one, and it's not going to open the door to lots of claims. It's clear that just like the waiver of any other fundamental constitutional right to a fair trial, the defendant's got to understand what mitigation means. He's got to understand its significance in the proceedings --
05-1575 +++$+++ 37991 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, he certainly understood that. He said if you want to give me the death penalty, bring it on, I'm ready for it. The purpose of mitigating evidence is to prevent the imposition of the death penalty. He says bring it on.
05-1575 +++$+++ 37992 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And he needs to be assisted by competent counsel. That's a consistent theme of this Court's decisions on the Johnson inquiry. And so if you have a situation in which you have documented that the client understands what mitigation is -- and frankly I don't think, with all due respect, Mr. Chief Justice, this is the kind of documentation that ought to suffice. But even if you had that, even if you documented that the defendant understood it, even if you documented that the defendant clearly waived it and documented that was done with counsel's assistance, then it seems to me it is going to be very hard for a habeas petitioner to plead something that's going to get past --
05-1575 +++$+++ 37993 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why isn't the type of documentation that would be sufficient? He understands what the consequence of not putting mitigating evidence on is going to be.
05-1575 +++$+++ 37994 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, because I think there isn't clarity at all that he understands what mitigating evidence is, what the full scope of it is and how it could --
05-1575 +++$+++ 37995 +++$+++ TRUE +++$+++ THE COURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He's present in the court while they're making a proffer of this sort of mitigating evidence. The judge is quite careful, saying okay, if he doesn't want the evidence, I want to know what it is. And he called the two witnesses. And all that this defendant does is undermine his lawyer's effort to present the mitigation.
05-1575 +++$+++ 37996 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But again, Mr. Chief Justice, at the time the trial judge didn't treat that as a waiver. And so I don't think you can cut off his ability to litigate an ineffective assistance claim years later on the ground that it was an ineffective waiver.
05-1575 +++$+++ 37997 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, are you claiming that -- are you claiming that his attorney did not adequately represent him at the sentencing hearing with respect to the question of waiver? In other words, when -- that the attorney should have insisted that the judge go through some kind of more comprehensive colloquy with him about waiver and inform him of certain things about what he was giving up? Are you making that claim?
05-1575 +++$+++ 37998 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think, Justice Alito, we're making a couple of different claims, not that claim, but a couple of different claims. One is, and it pertains particularly to a mental health expert, that even if Landrigan behaved exactly the way -- at 13 -- he in fact behaved in the counterfactual world in which he had received adequate representation, that the mental health expert testimony could have been proffered to the Court, had it been prepared and developed, would have been considered, and could have made a critically important difference and for precisely the reason that Justice Ginsburg's question suggested, which is that he's obviously behaving badly in this situation. What the trial court ruled out of that is, well, he's an amoral person. What the mental health testimony would give you is an alternative frame of reference for making a reasoned moral judgment about this guy, and could be critically important in explaining that behavior. So even within the confines of accepting that the world would have unfolded exactly the way it did, it was ineffective to have dropped the ball on preparing that kind of evidence. Then it's also ineffective in --
05-1575 +++$+++ 37999 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Excuse me. I'm not following you. You mean the mental health expert's testimony could have gone to whether the judge should have accepted the waiver?
05-1575 +++$+++ 38000 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
05-1575 +++$+++ 38001 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought that's what you were saying, I'm sorry.
05-1575 +++$+++ 38002 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, to the basic weighing the mitigation which the judge undertook based on all proffered evidence. Then beyond that, we're making an argument that the waiver that, even if you are going to consider that a waiver, you can't consider it a knowing and voluntary waiver, knowing intelligent waiver supported adequately by the efforts of counsel.
05-1575 +++$+++ 38003 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't that a separate question, whether it's a knowing and intelligent waiver? Isn't the question here whether he was prejudiced, which is a question of fact, which is a question of whether had he been informed of the possibility of mitigation evidence relating to a history of family violence, he would have persisted in blocking the admission of any mitigation evidence? Isn't that the issue? Not whether it was knowing and intelligent. That would be a separate legal question.
05-1575 +++$+++ 38004 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I don't think that's the issue. With all due respect, Justice Alito, I think the test under Strickland is whether there was sufficient performance, which we think we have a very powerful record of here, and then a reasonable probability that the outcome would have been different. And I think the inquiry here that the State habeas judge is undertaking is the reasonable probability inquiry. That seems to me to be a mixed question that requires --
05-1575 +++$+++ 38005 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, it's a mixed question. But if the post-conviction relief court found as a matter of fact that even had he known about the possibility of this type of mitigation evidence, he would have persisted in refusing to cooperate -- if there was such a finding, and know you dispute it -- and if you were granted a hearing, is it not true you would have to disprove that by clear and convincing evidence?
05-1575 +++$+++ 38006 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, taking our first argument to the side, our first argument which I've been discussing about what happened at the hearing, I think with respect to that argument the answer's no, that argument stands without any need to disprove the factual finding, if you assume it is a factual finding, and we don't concede that. But if it is a factual finding, then yes, we would have to disprove it by clear and convincing evidence, but we think we can do that, and all we're asking for is a hearing to enable us the opportunity.
05-1575 +++$+++ 38007 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What is the standard? I ask that because I'm not certain from what I heard previously -- I think the State was saying that the only issue that was raised before the State proceeding, collateral, the State collateral post-sentencing proceeding, was that you wanted to present evidence that he had a biological gene, it's a faulty gene, something like that. When I've looked at this, it's on page 88, the motion filed says we have two claims. One claim is the claim that was just mentioned, it says that -- about it's from the biological mother, and use of drugs and alcohol.
05-1575 +++$+++ 38008 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where are you quoting from? I'm sorry.
05-1575 +++$+++ 38009 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Joint appendix A. And then there's a second one on page 88 that says in addition to failing to investigate these alternative sources, we also want to say that counsel failed to explore additional grounds, and that was the sister. And the sister was going to testify that the mother -- the foster mother, Mrs. Landrigan, abused alcohol, and she has a whole list of things in her affidavit. So is that still before us? I mean, isn't that something you want to argue?
05-1575 +++$+++ 38010 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely.
05-1575 +++$+++ 38011 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right.
05-1575 +++$+++ 38012 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Your Honor, for bringing us back to that question.
05-1575 +++$+++ 38013 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And then the claim would be this: You want a hearing in which you're going to present the sister, the Landrigans, what they did , what the school says, what happened to him at school, all things that are there in Affidavit 5 which was in the State court, and that the biological gene. And you want to say, am I right, I don't want to put words in your mouth, and you want to say that given all this, had this been looked into and presented to the defendant, the defendant would not have said don't present any of that, it would have been presented, and it would have made a difference. What -- is that what you want to do?
05-1575 +++$+++ 38014 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-1575 +++$+++ 38015 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right.
05-1575 +++$+++ 38016 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With one addition, which is this one, fetal alcohol syndrome expert testimony is very important.
05-1575 +++$+++ 38017 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right, with that too.
05-1575 +++$+++ 38018 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-1575 +++$+++ 38019 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now, what the Ninth Circuit said is, we'll give you a hearing. We don't know if you're right or wrong. What's the standard for giving you the hearing? I -- a lot of things in the law aren't always written down exactly, and I was under the impression that trial judges often give hearings on what you might call seat of the pants. I'd like to hear more about it. I've been on appellate courts where rightly or wrongly we've said, I just think I'd like to know more about this. I can't quite understand it. Let's have a hearing. And we're going to tell the trial judge to do it.
05-1575 +++$+++ 38020 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Verrilli, I thought you already conceded that the Ninth Circuit did not ask for a hearing on this question of whether he had waived, effectively waived mitigating evidence.
05-1575 +++$+++ 38021 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
05-1575 +++$+++ 38022 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That isn't what the Ninth Circuit said.
05-1575 +++$+++ 38023 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but --
05-1575 +++$+++ 38024 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It found that he had not waived mitigating evidence. So what --
05-1575 +++$+++ 38025 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm not actually talking about waiver. My question was just generally what I asked. What is the standard there on whether you get a hearing?
05-1575 +++$+++ 38026 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, would you permit me to answer that question, and I'll come back to Your Honor's?
05-1575 +++$+++ 38027 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Whatever.
05-1575 +++$+++ 38028 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you. The -- with respect to the standard, there are two things that we have to show and if we do, we're entitled to a hearing. One is that we're not disentitled under the analysis under Section 2254(e)(2) as explicated in the Court's Michael Williams decision, to show that the court below found it, it was not raised in the cert petition. We pointed out in the brief in opposition that it wasn't raised, it had nothing about it. That's established and the case comes to the court.
05-1575 +++$+++ 38029 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is established? That you've satisfied (e)(2)?
05-1575 +++$+++ 38030 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That (e)(2) does not apply to us proceeding to an evidentiary hearing.
05-1575 +++$+++ 38031 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why, because you satisfy it or because it doesn't apply?
05-1575 +++$+++ 38032 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the -- there is no lack of diligence here that would trigger us meeting the heightened requirements of (e)(2), and therefore it doesn't apply to bar us. That's the theory. Now, with -- the other thing we have to show --
05-1575 +++$+++ 38033 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm sorry, you'll just have to bear with me.
05-1575 +++$+++ 38034 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Mr. Chief Justice.
05-1575 +++$+++ 38035 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you're saying you satisfy (e)(2)(A)(ii), because there's no lack of diligence. Don't you also have to satisfy (e)(2)(B), which is to show that no reasonable factfinder would have found him guilty, in other words words subject to --
05-1575 +++$+++ 38036 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. No, Your Honor. That's -- as we understand the Michael Williams decision interpreting that provision, Your Honor, those requirements only kick in in a situation where you haven't shown diligence and therefore you're at fault, and you can overcome your fault by meeting those heightened standards. They don't apply in a situation where you have been diligent and therefore you're not -- they don't apply to you at all. With respect to the -- what else -- with respect to what else we'd have to show, we'd have to show that -- and this is the Townsend standard, which nothing has changed -- that we've alleged facts which, if proven, entitle us to relief. Those are the two things we have to show and we've done both of those things.
05-1575 +++$+++ 38037 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the district court has substantial discretion in determining whether or not to grant that hearing on that basis.
05-1575 +++$+++ 38038 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And the Ninth Circuit -- and it seems to us actually, Your Honor, under Townsend in that situation the hearing's mandatory. The district court would have discretion under habeas, under habeas practice, to hold a hearing as a discretionary matter even in a situation where we haven't shown a mandatory entitlement to it. So there is discretion there.
05-1575 +++$+++ 38039 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Part of that discretion is, and you've been careful to say this, that there's a likelihood of a different result?
05-1575 +++$+++ 38040 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Yes.
05-1575 +++$+++ 38041 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it seems to me that that is the difficult part of your case based on this evidence.
05-1575 +++$+++ 38042 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but I think -- what I think is important there is that that issue ought to be decided after an evidentiary hearing when you know what it's going to be. It's premature to decide that --
05-1575 +++$+++ 38043 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, we know what the fetal alcohol testimony is going to be.
05-1575 +++$+++ 38044 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's true.
05-1575 +++$+++ 38045 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And we could make a determination or the court of appeals could make a determination or the district court could make a determination how likely that would to be affect the result.
05-1575 +++$+++ 38046 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they could, but it seems to me not until you actually hear the expert testimony, and then we have all of the other testimony that Justice Breyer detailed that you'd want to consider. I do want to try to come back, Justice Scalia, to your point. Yes, we acknowledge that the Ninth Circuit went too far in the way Your Honor described. But you don't get from that conclusion to the conclusion that you ought to grant the relief that the State is requesting here, which is a reversal and directing dismissal of the petition, because to get to that you have to show that there's no set of circumstances under which we could prevail. We're -- our position is an intermediate one, which is that the right answer here is that the judgment to send it back for an evidentiary hearing was correct and should be affirmed.
05-1575 +++$+++ 38047 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you do with -- following up on Justice Kennedy's question, the dissent took the position in the Ninth Circuit that the mitigating value of any proven, quoting A-24, "genetic predisposition to violence would not have outweighed its aggravating tendency to suggest that Landrigan was undeterable and even from prison would present a future danger"?
05-1575 +++$+++ 38048 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the answer is that that is an inappropriately truncated assessment of the mitigation case and a wrongly focused assessment of the mitigation case, which ought to Focus on the troubled history and the fetal alcohol syndrome, which provide a medical mental health explanation for his conduct which is quite different and that -- and so that's what ought to be balanced.
05-1575 +++$+++ 38049 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That was presented in the State court proceedings.
05-1575 +++$+++ 38050 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's not correct, Your Honor.
05-1575 +++$+++ 38051 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The biological mother's abuse of alcohol and drugs.
05-1575 +++$+++ 38052 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The fact that she used abusive -- that she abused alcohol, but not the medical expert testimony explaining what effects that would have. That's precisely the thing that wasn't there and that was the big problem. So I do think that that -- that's why we need an evidentiary hearing, to develop that. This weighing, by the way --
05-1575 +++$+++ 38053 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you think the State trial court had no familiarity with fetal alcohol syndrome?
05-1575 +++$+++ 38054 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if you look at page D-21, Mr. Chief Justice, what you'll see is actually proof in the transcript that she had no familiarity, because she said on page D-21 all it does is predispose you to being an addict yourself. But fetal alcohol syndrome is a much, much broader set of impairments that can bear directly on one's, one's moral culpability. If I could just say --
05-1575 +++$+++ 38055 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I have just one other question on a different matter. In Judge Bias's dissent, Judge Bay's dissent, he quotes a letter from the Petitioner, the Petitioner does not want to proceed with this appeal and wants the execution scheduled. Can you comment on that?
05-1575 +++$+++ 38056 +++$+++ TRUE +++$+++ MR. VERRILLI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure. What there was that the Ninth Circuit, upon receiving this letter, contacted counsel for Mr. Landrigan, asked him -- asked them to go visit him in prison and find out what's going on. They did so. They reported back to the Ninth Circuit that Mr. Landrigan did in fact want to proceed with the appeals. He has continued to want to proceed with the appeals, signing the IFP papers, et cetera, and it turns out there were neurological problems that were afflicting him, very serious, at the time. So that's what happened. If I could say in conclusion, just remind the Court what it said in the first Norrell decision, that even in the world of habeas there's a difference between deference and abdication. And in a situation like this one, in which the State court has not afforded an evidentiary hearing and has not allowed the development of the evidence that bears directly on Mr. Landrigan's claims, it would be a form of abdication to hold that he can be conclusively barred from proceeding further, even to an evidentiary hearing, on the basis of the present record. Thank you.
05-1575 +++$+++ 38057 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Verrilli. The case is submitted.
05-1589 +++$+++ 38061 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in 05-1589, Davenport versus Washington Education Association, and 05-1657 consolidated, Washington versus Washington Education Association. General McKenna.
05-1589 +++$+++ 38063 +++$+++ FALSE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Washington law authorizes union security agreements which permit unions to enter into collective bargaining agreements that require non-member employees to pay an agency shop fee or lose their job. The union's authority to select these compelled fees is based solely on statute and the subject of statutory conditions. Section 760, as adopted by Washington voters in 1992, requires unions to obtain the affirmative consent from non-members before their fees may be used to influence an election or operate a political committee. 760 serves the state's interest in election integrity by means of ensuring that union election activity is funded by voluntary contributions, just like every other organization that seeks political funds. 760 is a valid condition on the union statutory authority and does not violate the union's First Amendment rights. 760 serves the state's interests specified in the adopted initiative, which were -- which are found at petition appendix 138a codified as RCW 4217.620. Three interests in election integrity are stated, or three means of serving an interest in election integrity are stated in this portion, the intent portion of the statute. First, to ensure that individuals have a fair and equal opportunity to influence elections; second, to reduce the influence of large organizational contributors; third, to restore public trust in the election process. The Washington Supreme Court, petition appendix 22a-23a, agreed that the intent of Initiative 134 was to protect the integrity of the election process from the perception that individuals have an insignificant role to play.
05-1589 +++$+++ 38064 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm surprised that that's the -- I would have thought its primary purpose would be to spare individuals the necessity of supporting causes that they don't support. Was there no First Amendment interest.
05-1589 +++$+++ 38065 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, I --
05-1589 +++$+++ 38066 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it only an election law interest?
05-1589 +++$+++ 38067 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Actually, Justice Scalia, we believe that Section, Section 760 accomplishes both purposes. The overall intent of the initiative was as I stated found by the State Supreme Court, but clearly from the plain language of Section 760 --
05-1589 +++$+++ 38068 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you just said the State Supreme Court was wrong. I mean, why do you believe it on this if you don't believe it on everything else? You're appealing from it, aren't you?
05-1589 +++$+++ 38069 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We believe that the integrity of the election process, Justice Scalia, is in fact served by helping ensure that individuals make voluntary contributions. We think that in fact it does help the integrity of the election process, yes, sir.
05-1589 +++$+++ 38070 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, how can the State Supreme Court determine what is the purpose, the intent, of the ballot initiative?
05-1589 +++$+++ 38071 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not certain, Your Honor. They referred to the --
05-1589 +++$+++ 38072 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ A lot of people voted for it.
05-1589 +++$+++ 38073 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-1589 +++$+++ 38074 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But is the State Supreme Court in a position to determine why they voted for it?
05-1589 +++$+++ 38075 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They simply hold, Your Honor, in their opinion that this is what the voters intended.
05-1589 +++$+++ 38076 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How do they know that?
05-1589 +++$+++ 38077 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know how they know it, Your Honor.
05-1589 +++$+++ 38078 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If that's what they intended, then how can a State say, well, it's the union's money, we don't want you to send this little bit of your money to contribute in a campaign, but if the local swimming team wants to, or the bar association or the corporation, if they want to spend money that people have given them for totally other purposes, the compulsory bar association, well, they can do that. It's just the labor unions that can't spend the money that these people forced to belong -- you know, they have to object affirmatively -- but all the other similar organizations, they can't.
05-1589 +++$+++ 38079 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, beginning with the Railway Labor Act case and continuing up through the public school teacher cases, Abood and Hudson, this Court has recognized that compelling employees to pay fees must be balanced against the need to protect them from --
05-1589 +++$+++ 38080 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, now you're talking about this other purpose, but that other purpose, which is rather interesting -- I take it that's one of the main points on the other side -- the other purpose has nothing to do with this case. If Washington wanted to have a similar statute where it was worried about protecting the interests of the compelled member or the compelled payor, fine, fine, that would be a different case. That isn't this case.
05-1589 +++$+++ 38081 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor --
05-1589 +++$+++ 38082 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In this case they couldn't care less about that.
05-1589 +++$+++ 38083 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Actually, Your Honor, I think the plain language of 760 makes it clear that the authors of the initiative intended to protect individual interests. There is no meaningful distinction between the use of individuals in 760, in Section 760, than there is in the Hudson, in the Hudson statute, for example. The Hudson statute, the Illinois statute at issue in Hudson, also required nonmembers to opt in in order to make, not just political contributions but any contributions. But the Court, this Court, found no problem with Hudson or with the Illinois statute in that case.
05-1589 +++$+++ 38084 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's true, but in that case, in that case they didn't have a State Supreme Court interpreting the statute which is just as you started off saying it was, which has nothing to with the rights of the nonmember, zero. It has to do with the appearance of fairness in the election.
05-1589 +++$+++ 38085 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, with due respect that was the legal conclusion of the Washington Supreme Court. It was not a construction of the statute. It was a legal conclusion based on their reading or divining of voter intend. But this Court is not bound by such an assessment.
05-1589 +++$+++ 38086 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I wanted to ask about that. Suppose Washington says that as a matter of Washington law we are bound by our interpretation of purpose and we interpret the statute according to that purpose. You use the words "plain language" a few minutes ago.
05-1589 +++$+++ 38087 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes.
05-1589 +++$+++ 38088 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are we free to disregard that and to say. Oh well, we're just going to follow the plain language?
05-1589 +++$+++ 38089 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, no.
05-1589 +++$+++ 38090 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Like the says that was argued, the first case this morning?
05-1589 +++$+++ 38091 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, as Chief Justice Roberts mentioned in the last case you heard this morning, first look to the plain language, as the Solicitor General has pointed out in numerous briefs --
05-1589 +++$+++ 38092 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that's a Federal, a Federal statute and this is a State statute. If the State court says, we're interested in purposes, we decided, and you must as a matter of State law interpret the statute according to the purpose as we found it, aren't we bound by that?
05-1589 +++$+++ 38093 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe you are bound by that, Your Honor. For example --
05-1589 +++$+++ 38094 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's your authority for that?
05-1589 +++$+++ 38095 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Wisconsin v. Mitchell, Your Honor. In that case the Wisconsin Supreme Court was found by this Court not to have constructed the statute, but to have made an assessment of its practical effects, and this Court found it was not bound. Similarly in Teller, a case more directly relevant to this case, the State Supreme Court found that the Bar Association of California is a governmental agency and this Court declined to follow the State Supreme Court of California and found that in fact it was not.
05-1589 +++$+++ 38096 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's because the characterization had a Federal consequence.
05-1589 +++$+++ 38097 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I simply observed that this Court did not find it was bound by the California Supreme Court's finding that the bar association is a government agency, nor did it find in Wisconsin v. Mitchell that it was bound by the Wisconsin Supreme Court in regards to its assessment of practical effects of the Wisconsin statute at issue there.
05-1589 +++$+++ 38098 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do they get their money back? If this is upheld and I'm an agency member, I hate the union, can't stand it, gave them the $20 for this and they spent it on a political candidate I hate even more and you win, do I get my $20 back or can the union just spend my $20 on something else?
05-1589 +++$+++ 38099 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, if it is a 760 expense they should get the money back. If it is a non-760 expense which is not germane, then they would have to opt out at that -- they would have to opt out to get that kind of money back, unless Your Honor is referring to what happens on, if the statute is upheld, what happens when we go back and have a further trial on the issues in this case. I'm not sure which scenario you were envisioning, but --
05-1589 +++$+++ 38100 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm trying to get at the question is this the union's money or is this the workers', the teachers' money?
05-1589 +++$+++ 38101 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor --
05-1589 +++$+++ 38102 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So does he get this money back if they violate the statute.
05-1589 +++$+++ 38103 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the 760 money -- excuse me. The 760 money is not the union's money until they have satisfied the conditions laid out in the statute, in this case Section 760. Possession of the fees does not entitle the WEA or any union to use those fees to influence an election or operate a political committee until after they have satisfied the condition on that collection, the condition being in this case they have to obtain affirmative authorization. This Court held in Phillipson and Brown that, analogizing to that money, that non-members own the fees until the statutory conditions are satisfied.
05-1589 +++$+++ 38104 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let, let's assume that it makes a difference whether the purpose of the statute was at least in part to protect the First Amendment rights of the non-union members or whether, as the Washington Supreme Court seemed to say -- at least they said its principal purpose was to protect the voting process. Elsewhere in its opinion, however, the Washington Supreme Court says where a statute is ambiguous and this court is able to construe it in a manner which renders it constitutional the court is obliged to do so, which sounds to me like good law. Wouldn't that apply to its intuition as to what the intent of the people who enacted this statute were?
05-1589 +++$+++ 38105 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, sir --
05-1589 +++$+++ 38106 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wouldn't the Washington Supreme Court be obliged to intuit that purpose which would make it constitutional rather than unconstitutional?
05-1589 +++$+++ 38107 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, it would if in fact Section 760 were ambiguous. It is, however, not ambiguous. It is plain on its face, and in fact the Supreme Court did not state that any term or phrase in Section 760 is ambiguous. Instead they referred to their divination of voter intent. And I believe, Your Honor --
05-1589 +++$+++ 38108 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you agree with the court's conclusion that constitutionality is at issue here?
05-1589 +++$+++ 38109 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The constitutionality of the statute with regard to the union's First Amendment rights is not at issue here, Your Honor, no.
05-1589 +++$+++ 38110 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't it your position that this statute is constitutional either way you interpret it?
05-1589 +++$+++ 38111 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, it is. Your Honor, I'd like to make the further point that -- and I think this is a fairly obvious point, but we think that since under your decisions the State can prohibit a union from collecting an agency fee altogether, that it is reasonable for the State to impose a condition on that collection which falls, falls far short of actually prohibiting it. We further point out that in the Hudson case the Illinois statute at issue was effectively an opt-in statute, a statute under which no amount that was not germane could be collected in advance, unlike the more generous Washington State statute which allows the union, permits the union, to collect a fee in an amount equal to dues or would permit it to collect a fee which had been reduced in advance to reflect non-germane or reduced just to reflect 760 expenses. It seems to us that it is within the power of the State to establish such a condition in the interest of an election's integrity by means of protecting the First Amendment interests of the non-members, and we think the statute does that very well without imposing in fact a substantial administrative burden on the union in this case or unions in general. For example, the, the way that the WEA or any union can comply with Section 760 would be to simply place an additional form in the Hudson packet they send out. Now, recognizing that the Hudson packet is about this thick, that it is received by the teachers in September, the busiest month of the year for teachers, and that there is no form currently provided in that packet whatsoever to allow people to opt out, but rather a statement that you must send a letter to the union to opt out, we think it's quite easy. And we look to the WEA PAC for instruction on what they could do. But now. Because the WEA has chosen to form a PAC and is required to solicit members and non-members if they choose in order to contribute to that PAC, they do a very good job of soliciting members. They include a very convenient form encouraging people to check off and send their dues in to the PAC to support candidate elections. They provide no such form for the opt-out process, but it would be easy for them to do so. The burden imposed on them is not great administratively, as they suggest, any more than the burden on the other teachers unions in Abood or in Hudson because it can easily be met through these simple. If there are no further questions, Your Honor, I'd like to reserve the balance of my time.
05-1589 +++$+++ 38112 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General. General Clement.
05-1589 +++$+++ 38114 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice and may it please the Court: The statute at issue here imposes only a narrow limitation on the union's use of agency fees, namely by requiring the affirmative assent of the non-members before the union may use those funds for non- germane political expenditures. The statute does not limit the union's ability to spend its own money on political causes and every avenue that is available to any other organization in the State to solicit contributions from non- members remains available to the union. The court below nonetheless struck the statute down only by treating the workers' minimum constitutional rights as a constitutional ceiling as well as a floor. In the process, the court below rigidly constitutionalized an area of labor law in which the States and the Federal Government have at least since the Lochner era enjoyed substantial discretion to make labor policy. We would request that the Court reverse the decision below, but also reverse and restore room for play in the joints in this area of labor law. I think the starting problem with the court's analysis below is that the rights that are at issue in this area principally are the rights of the individual workers. This court has recognized that agency shop itself raises significant First Amendment issues and First Amendment impingements and so the forced extraction of fees is justified only to the extent that it can be justified by the government's interest in maintaining labor peace or in avoiding free ridership. So as a minimum constitutional matter, the workers have to have an opt- out right. The question is whether the States can go further and either do an opt-in regime or do what was at issue in the Hudson case and not even allow the union to collect the non-germane funds in the first place from non-members.
05-1589 +++$+++ 38115 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Clement, if we reverse as you suggest and the State Supreme Court said, well, I guess we were wrong under the First Amendment, we just realized our State constitution requires the same result, would that judgment stand, do you think?
05-1589 +++$+++ 38116 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it might well. I mean, I think there might be an argument at that point that somehow the Federal Constitution requires more than opt-out rights. Certainly some of the amici have made that argument. The Davenport Petitioners have made that argument, and I suppose you could at that point confront a second petition in this case. But at least as a starting matter, I think that's an option that's available to the Washington Supreme Court.
05-1589 +++$+++ 38117 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But Washington -- at a minimum, I would assume that the Washington Supreme Court would not have constitutional avoidance as a crutch in order to reach that, to reach that conclusion, because there is no constitutional issue here under your view.
05-1589 +++$+++ 38118 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, though I mean -- I don't mean to be able to constrain the Washington Supreme Court's ability to find a State constitutional problem that it would then think there's a need to avoid.
05-1589 +++$+++ 38119 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are the courts in Washington State elected, do we know that? Are they elected?
05-1589 +++$+++ 38120 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They are elected.
05-1589 +++$+++ 38121 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They are elected, so it's easier to blame it on us than it is for them to say, we hold as a matter of Washington law that this can't be done and we disallow what the people have voted for. That would be harder, a harder call, don't you think?
05-1589 +++$+++ 38122 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It might be a harder call, Justice Scalia. I seem to recall a reference -- it might have actually been in the court of appeals opinion rather than in the State Supreme Court opinion -- that as a general matter the Washington courts have not construed their First Amendment, State constituent First Amendment to be radically different than the Federal Constitution. So I would imagine there's going to be some State law that may limit their ability to do that. I'm certainly not an expert on the Washington State law of the First Amendment.
05-1589 +++$+++ 38123 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if this money is the non-union member's money and an opt-out -- I'm sorry -- opt-in scheme is not much of a burden on the unions, why should the First Amendment permit anything other than an opt-in scheme.
05-1589 +++$+++ 38124 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia, it's a fair question. As I say, it's a question that's certainly raised by the Davenport Petitioners. I think there's an answer to it and I'll get to it in a minute. But I would say in fairness to Mr. -- one of the anomalies of this case is that in many respects I think that's a more difficult constitutional question than the one that the Washington Supreme Court answered adversely to Petitioners in this case. I think, if I can sketch an answer as to why it is that the opt out is the constitutional minimum and there isn't as a matter of constitutional law required to be an opt-in right, I think it goes back to what the Court has construed as the relevant First Amendment interest here. And the Court has seemingly construed the relevant First Amendment interest here in not having a compelled extraction, and as part and parcel of the constitutional violation, it seems to have assumed there's a need for a stated objection. And I think that's where you get the opt-out right. And so if you put it in the analogy, an analogous compelled speech context like Willie against Maynard and the New Hampshire license plate, in that context an important parcel of the violation is the objection to having "Live Free or Die" on your license plate. And the Court hasn't construed the compelled speech there to be that everybody has a compelled speech violation because they are presumptively forced to have the license plate on the back of their car. So I think that --
05-1589 +++$+++ 38125 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The union can make it as difficult as it wants for somebody to opt out. They can send a packet that's this thick and not provide a form.
05-1589 +++$+++ 38126 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I wouldn't think so, Justice Alito. And I think that there are two separate questions, I would think. One is, what is an adequate set of procedures and protections for exercising the opt-out right? And then a separate question would be, do you actually have to go all the way to an opt-in right? And I think that there may well be many cases where the Hudson notice that's provided doesn't provide a sufficient constitutional opportunity. I mean, you have in a case like this, a 100-page packet, I'm told, that has no -- no form in it that you're supposed to return to opt out. You basically have to go to the third page, find the address of the president of the union, and then send in a letter. And I think it's instructive if you look in the joint appendix, I think it's at page joint appendix 45, you have the form that's available to union members to opt in to PAC contributions, and have payroll deductions made for the PAC contributions. The union certainly makes it much easier to opt in to PAC contributions than it makes it to opt out vis a vis the Hudson packet.
05-1589 +++$+++ 38127 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it relevant, General Clement, that the legislature didn't seem to be, or the ballot initiative didn't seem to be focused at all on beefing up the rights of the non-member of the union? It seemed to be concerned with the integrity of the election process, because they left the same old Hudson in place for union nongermane spending that didn't have to do with elections.
05-1589 +++$+++ 38128 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely right, Justice Ginsburg, and I think the way we look at it is that this whole debate about the purpose of the provision is a little bit of a red herring, because at the end of the day it's clearly a hybrid. If you look at the text, it's hard to understand how it does not have at least the effect of protecting workers. On the other hand, you're absolutely right that it doesn't address the entirety of germane, of non-germane expenses. It addressed a subset that have the most direct impact on the election process.
05-1589 +++$+++ 38129 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or even nongermane political expenses.
05-1589 +++$+++ 38130 +++$+++ TRUE +++$+++ MR. CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true. That's true, I mean, for example, a nongermane lobbying expense which you might consider to be political in some broad sense, is not covered by the opt-in and remains subject to the Hudson opt out right. But I don't think that there is certainly anything problematic about that. It's not like the interest in protecting electoral integrity is some sort of forbidden government interest that makes this a suspicious piece of legislation. And I think at the end, if you again put the text of the relevant provision together with the overall purpose, it's clear that it's trying to protect the rights of workers but it's doing so in service of a broader intent of improving electoral integrity, and I could suggest where maybe the Washington Supreme Court went awry in its analysis, it focused almost exclusively on the three stated purposes that were included in the text of Initiative 134, which were all focused more on electoral integrity. That's not surprising, because there were 36 sections in Initiative 134 that dealt with the whole manner of different campaign finance initiatives. Before this initiative was passed by the voters of Washington there weren't any campaign contribution limits in the State of Washington. So this initiative is doing a lot more work, just besides Section 760. I think 760 isn't unrelated to those broader purposes because it does make sure that the contributions of the workers here are voluntary, and I think that is certainly something that's very similar to what Federal law accomplishes through the separate segregated fund requirements. If I could make just one note about the fact that this targets unions and not other entities, I think two points are relevant. The first is that argument was very clearly waived, and if you look at footnote 6 of the Washington Supreme Court opinion which is at 25a of the -- of the State's petition appendix, it's clear that any argument about the, the disparate treatment of unions versus corporations or other entities was not before that court.
05-1589 +++$+++ 38131 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, are there any other such entities that are given the power by the State to collect money from people against their will?
05-1589 +++$+++ 38132 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You've anticipated my second point, which is the power that's being -- I mean, it's no accident that they targeted this particular power or this particular issue because it has always been understood to be an anomaly in this area. That the unions have a right to effectively take a claim on the paycheck on people who are nonmembers of the union. These are individuals who have already opted out of union membership, and that is a sufficient anomaly and sufficiently unlike any other context that I think there is nothing that prevents the State of Washington from targeting that problem and that problem alone. If there are no further questions, thank you.
05-1589 +++$+++ 38133 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General. Mr. West.
05-1589 +++$+++ 38135 +++$+++ FALSE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief -- Mr. Chief Justice, and may it please the Court: Our submission that Section 760 unconstitutionally burdens the union's First Amendment right to engage in political advocacy rests on three points. One, the statute before the Court is a campaign finance law that was enacted for the purpose of protecting the public's interest in the integrity of the electoral process. Two, it is a content-based restriction on speech, which cannot be justified by the State's authority to limit agency fees in the first place. Three, the statute does not serve a compelling State interest both because it is overbroad in restricting, restricting speech on ballot propositions and because it's underinclusive in regulating the campaign speech of unions but not of other comparably situated entities.
05-1589 +++$+++ 38136 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are the First Amendment rights of the union members, of the workers who are non-union members relevant?
05-1589 +++$+++ 38137 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Uh, the First Amendment rights --
05-1589 +++$+++ 38138 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, you -- you begin by talking about the First Amendment but you, you proceed as if there are no First Amendment rights of, of workers involved at all.
05-1589 +++$+++ 38139 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the -- the nonmember employees certainly have a First Amendment right not to be compelled to finance, help finance political, ideological and other nongermane expenditures over their objection. And that right is fully protected independently of 760 by the Hudson process, and as the Washington Supreme Court held, when there is the availability of a ready means for opting out of that participation in, in financing those causes, there is no compelled speech. And this is what the, what the First Amendment gives to the nonmember fee payers.
05-1589 +++$+++ 38140 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I take it States have considerable discretion in determining how to protect Federal constitutional rights.
05-1589 +++$+++ 38141 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The States --
05-1589 +++$+++ 38142 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And absent some direction that we have to consider this as only being for a, for purposes of election transparency, it seems to me that Washington acted quite properly in saying we will use this mechanism in order to protect our workers' First Amendment constitutional rights.
05-1589 +++$+++ 38143 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, what the State is protecting, Justice Kennedy, is not the First Amendment right itself which by definition is protected through the Hudson process.
05-1589 +++$+++ 38144 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why can't the State protect it more? I mean the fact that Hudson would be adequate -- it --
05-1589 +++$+++ 38145 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The State --
05-1589 +++$+++ 38146 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- from that it does not follow that the State is not protecting the rights.
05-1589 +++$+++ 38147 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The State can certainly protect the interest that is protected by the First Amendment right more, or to a greater degree, but if it does so, it can only do so if it does not infringe on other constitutional rights. And if it does then the question is whether the State's regulation that infringes on other constitutional rights, in this case the union's First Amendment right of political advocacy, whether that infringement is justified by a compelling State interest.
05-1589 +++$+++ 38148 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And your claim as I take it, that there is an infringement with the union's right of political advocacy, is that if in effect the scheme restricts the union's use of its own funds?
05-1589 +++$+++ 38149 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The scheme restricts the, the use of funds that are, are properly collected from agency fee payers by the union and --
05-1589 +++$+++ 38150 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. You agree that the union could segregate these funds as opposed to commingling them, and that would cure, that would in effect answer your, your constitutional objection?
05-1589 +++$+++ 38151 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it wouldn't, because then the question is what do you do after you've segregated them. If the statute --
05-1589 +++$+++ 38152 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's clear from the statute that, that what you would do would be leave them subject to the opt-in determination, but all other funds, i.e., the funds that you are constitutionally entitled to protect, would be unencumbered.
05-1589 +++$+++ 38153 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly Justice Souter, but then the question is, for those fee payers, and certainly there are going to be some out of three or four thousand that do not give affirmative authorization, then what do you do with their funds? And the, the --
05-1589 +++$+++ 38154 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think that would create an independent constitutional problem assuming that you did segregate the funds?
05-1589 +++$+++ 38155 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, the --
05-1589 +++$+++ 38156 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That would, that would create an issue? You know, what if they say: Nothing? Maybe, maybe the statute does not deal adequately with that. But does that raise a constitutional problem that in effect would be, would be of equal parity with the one that is, that is raised on behalf of the, the, the dissenting workers?
05-1589 +++$+++ 38157 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, the reason it raises a constitutional problem is because of the content discrimination issue. What the State is saying is that you have a right to collect an agency fee that is the full equivalent of union dues, but if you choose to spend any money from your treasury for electoral advocacy, you may spend whatever you want from your treasury for -- for legislative lobbying, for public relations, for all kinds of other issues, forms of speech that are not chargeable to objectors. But if you choose to spend any for one particular type of speech, namely electoral advocacy, then you must segregate and refund a portion of the --
05-1589 +++$+++ 38158 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's, under --
05-1589 +++$+++ 38159 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to the fee payers.
05-1589 +++$+++ 38160 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Under the Federal law you can't even have this opt-in system. You have to have a separate organization as I understand, for the election. So there would be no, no possibility that the nonmember of the union, that funds would go to election financing.
05-1589 +++$+++ 38161 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly, Justice Ginsburg.
05-1589 +++$+++ 38162 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that's much harder on the union, I would think, isn't it?
05-1589 +++$+++ 38163 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's much harder on the union in that respect but not in the respect that's critical here, and that is the Federal law as well as the laws of all the other States who have, have required separate segregated funds limit that requirement to candidate elections. The, the reason this statute is unconstitutional, the reason it does not consist of a compelling, does not provide a compelling governmental interest in regulating elections, is because it goes far beyond the permissible realm of regulating expenditures on candidate elections, and prohibits the union without affirmative authorization from spending its funds for ballot propositions.
05-1589 +++$+++ 38164 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're -- you're back to its funds again.
05-1589 +++$+++ 38165 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Whether they're --
05-1589 +++$+++ 38166 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you're saying, first you said well, segregating the funds does not answer the problem. And I thought the reason it didn't answer the problem was that the, that it was, that the purposes of the, of the act were underinclusive. And now you're responding to Justice Ginsburg by going back to making the assumption that the segregated funds would be the union's funds.
05-1589 +++$+++ 38167 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, if they are segregated, if the union segregates them, assuming they don't -- for those for whom they don't receive affirmative authorization, they keep them in escrow indefinitely, or they put them in a locked box and never do anything with them, certainly the union would satisfy the statute in -- in that way. But what, what the statute says as interpreted by the trial court, if then the union puts those funds back into its general treasury, or even if it doesn't, and spends them in some way for some purpose whatever, that it's violating the statute. And the only way that the union can comply is by not only segregating the funds, but then if affirmative authorization is not received, by rebating a certain portion of the fund to the individual fee payers.
05-1589 +++$+++ 38168 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I thought that approach was exactly what we held was required in the Street decision, the International Association of Machinists versus Street, so that you can't get around this requirement by saying, oh well, we'll use the objectors' funds for collective bargaining and we'll use the others for that.
05-1589 +++$+++ 38169 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure. Exactly. And that's -- and that's why I think that that interpretation of the statute may be correct. But the problem we have here is this is a statute, and why it's unconstitutional is this is a statute that is saying this only with respect to a particular kind of speech. It's saying the union may collect a hundred percent of dues and it may spend them in whatever way it deems appropriate for --
05-1589 +++$+++ 38170 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Doesn't that objection apply whether it's opt in or opt out?
05-1589 +++$+++ 38171 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it doesn't, Mr. Chief Justice, because the -- the -- in -- in the Street and Abood decisions, the Court has -- has said that there is -- all -- has talked in terms of expenditures that are not germane to collective bargaining.
05-1589 +++$+++ 38172 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it content discrimination which subjects legislation to strict scrutiny if the Government, Federal Government or a State designates certain funds for use by school districts to teach patriotism, American history, something like that? Is that subject to strict scrutiny?
05-1589 +++$+++ 38173 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, because this is Government funding. This is --
05-1589 +++$+++ 38174 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Now let's assume it's not Government funding. Instead of doing that the Government says, you will have authority to collect money from certain people only for a particular purpose. Is that content discrimination which calls into play strict scrutiny?
05-1589 +++$+++ 38175 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe it is, Justice Scalia, because --
05-1589 +++$+++ 38176 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't see why the one is any worse than the other. The Government has a particular purpose in mind and in one case it gives out money with that purpose in mind, which discriminates of course; in the other case it allows this extraordinary power to exact funds from people, but only for certain purposes. That's not the kind of content discrimination that they calls strict scrutiny into play, it seems to me.
05-1589 +++$+++ 38177 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's strict scrutiny if it's not the Government acting as the speaker, and the Government is acting here as --
05-1589 +++$+++ 38178 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Here is the Government acting as a coercer. It's because of the Government that you're allowed to get this money from these non-union members.
05-1589 +++$+++ 38179 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't believe the Court has ever put it quite that way in the Government speech cases, the Government funding cases.
05-1589 +++$+++ 38180 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask this question on your overinclusive, or underinclusive rather, argument? Supposing the statute was broader and said the union may not use any non-member agency fee collections for any non-germane purpose at all without affirmative consent? Would that solve all the constitutional problems?
05-1589 +++$+++ 38181 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the problem here -- let me say two things in response to that, Justice Stevens.
05-1589 +++$+++ 38182 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could you just tell me yes or no, and then explain?
05-1589 +++$+++ 38183 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly. Well, the answer is yes and no. The answer is, if you're talking about -- (Laughter.)
05-1589 +++$+++ 38184 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ At least insofar as your argument under inclusiveness, the answer would have to be that was, that statute would be okay.
05-1589 +++$+++ 38185 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If -- if the -- if you're -- if what you're doing is talking about the, an election statute like --
05-1589 +++$+++ 38186 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm talking about a statute that the individuals say I don't want to spend any more money, give any more money to the union than I absolutely have to. And the legislature decides to protect the right, that right by saying you cannot use agency sock fees for any non-germane purpose. What's wrong with that?
05-1589 +++$+++ 38187 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That, Justice Stevens, if this is what the state is saying with respect to the public sector employees as to which it has the authority to regulate the agency fee. This is perfectly constitutional. This is the kind of --
05-1589 +++$+++ 38188 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If that's perfectly constitutional, this is a fortiori okay.
05-1589 +++$+++ 38189 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not --
05-1589 +++$+++ 38190 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it's less of a burden on the union and there's less protection to the employee.
05-1589 +++$+++ 38191 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it's not. It's a different case for two reasons, Justice Stevens. First of all, because it's content discriminatory. It's not saying the -- it's not saying you -- we limit the agency fee to the nonchargeable, the non-germane, or to the purposes that are germane to collective bargaining. The State can permissibly do that because it's making --
05-1589 +++$+++ 38192 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why isn't that a content-based restriction? You've got to look at it and see if it's germane.
05-1589 +++$+++ 38193 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The purposes that -- the purposes for which the -- that are being excluded in that case are a wide variety of different kinds of speech and non-speech activities, not only political speech but public relations. Many courts have interpreted organizing activities to be non-germane to collective bargaining. Membership benefits that are not available, non-members are put in that category. Donations to charities. International activities. There's a whole variety of union expenditures that the courts have held are not germane to collective bargaining and cannot be charged over a non-member's objection, and a State would be perfectly free, as several states like Pennsylvania and New Mexico have, to say our judgment is that our interest in labor peace does not extend further than in authorizing an agency fee that includes purposes germane to collective bargaining.
05-1589 +++$+++ 38194 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm just curious below in the opinion, I didn't notice in footnote 6, which I hadn't taken in, that the court explicitly says that you did not make any argument about underinclusiveness and overinclusiveness with respect to other organizations, corporations and so forth. Now, did -- I can't recall, I just don't recall. What you're saying now, I take it, is that the word "election," you can't use it for elections, and elections involve candidates and they also involve ballot issues.
05-1589 +++$+++ 38195 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
05-1589 +++$+++ 38196 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you're saying that the real problem with this statute is that it throws in ballot issues along with candidate elections.
05-1589 +++$+++ 38197 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there are two problems. There's the concept -- I mean, there's --
05-1589 +++$+++ 38198 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But on that first one, did they discuss that at some length in the lower court opinion? I don't --
05-1589 +++$+++ 38199 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The lower court, no, did not discuss the --
05-1589 +++$+++ 38200 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So this is really a ground that they haven't considered.
05-1589 +++$+++ 38201 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What the Washington Supreme Court held is that the -- what was argued in the Washington Supreme Court generally is that this is a violation of the union's right to engage in political advocacy.
05-1589 +++$+++ 38202 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But this thing about the ballot issue is not there.
05-1589 +++$+++ 38203 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And the reason -- this is a reason I think the Washington Supreme Court took note of the fact of what the funds were spent on, on balloting initiatives solely, not on candidate elections.
05-1589 +++$+++ 38204 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In fact, you want to us decide that question, and was there another one that -- you just said there were two reasons basically.
05-1589 +++$+++ 38205 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the two reasons why the statute fails to constitute a compelling Government interest are the overbroad extension to ballot propositions, unlike the Federal law and any other State law. And secondly, the underinclusiveness that this is a statute that is ostensibly intended to protect the integrity of the elections by ensuring that the funds that organizations spend for political electoral purposes represent the views of the people from whom those funds were derived. And the -- what the State has chosen to regulate to advance that interest is solely people who already have the opportunity to prevent the use of their funds for purposes they disagree with, while not regulating at all other entities in which --
05-1589 +++$+++ 38206 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's the argument that the State Supreme Court in footnote 6 expressly said you did not raise.
05-1589 +++$+++ 38207 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that would be a valid argument if we were attempting to raise an equal protection claim here, Mr. Chief Justice. That's not what we're doing. What we're saying, we are making an argument based on what the State Supreme Court held, namely that this is a violation of the -- the union's right to engage in political speech, and this is one of the reasons for it. Granted, that particular justification for the ruling was not argued below, but this is not like we were attempting to argue equal protection, a totally new basis.
05-1589 +++$+++ 38208 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On which -- on what you were arguing, you were very careful in your brief to say funds lawfully possessed by the union, as distinguished from what's in a corporate treasury or -- there is something peculiar about this, and you recognized it by saying we possess them, because if the non-member wants it back, the non-member would be entitled. So it's not like money in the corporate till.
05-1589 +++$+++ 38209 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it is, Justice Ginsburg, if the -- this is why the purpose of the statute is so important. If the purpose of the statute is to protect the integrity of the elections by ensuring that what organizations spend for political purposes represents the views of those who contributed the money, then it's very much to the point that there are other organizations. For example, the Michigan Chamber of Commerce --
05-1589 +++$+++ 38210 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You want us to consider this case as if the First Amendment rights of non-union members were not involved?
05-1589 +++$+++ 38211 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely -- absolutely not, Justice Kennedy. We recognize --
05-1589 +++$+++ 38212 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's been your whole argument so far.
05-1589 +++$+++ 38213 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely not. I'm sorry, Justice Kennedy, but that's certainly not what I intend to be saying. We recognize that the non-members have First Amendment rights. We also recognize that those rights are protected by the Hudson procedures which the union uses. The non-members have the absolute right to prevent the use of their funds not only for this kind of electoral speech but for any kind of political ideological speech and other nonchargeable activities with which they disagree simply by sending in a letter.
05-1589 +++$+++ 38214 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it's a First Amendment right that is waived by failing to make a timely objection.
05-1589 +++$+++ 38215 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's not that a right is waived. What it is --
05-1589 +++$+++ 38216 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's gone under your theory.
05-1589 +++$+++ 38217 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. It's -- Justice Stevens, it's what the right is. The constitutional right is a right against being required to -- to engage in compelled speech.
05-1589 +++$+++ 38218 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which no longer exists if you don't make a timely objection.
05-1589 +++$+++ 38219 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, you have the -- but that would be just like -- like the solicitor general on the -- the license plate case. Someone who receives in the mail the license plate that says "Live Free or Die" or "Taxation Without Representation" and puts it on his car is not waiving a constitutional right by --
05-1589 +++$+++ 38220 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's not exactly the same situation. These are teachers who have chosen not to join the Washington Education Association; isn't that right?
05-1589 +++$+++ 38221 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ These are teachers who have not joined the Washington Education --
05-1589 +++$+++ 38222 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't it overwhelmingly likely that they, if you spoke to them and you said would you like to give money to the union to spend on elections, they would say no?
05-1589 +++$+++ 38223 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I absolutely disagree with you, Justice Alito, because keep in mind --
05-1589 +++$+++ 38224 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Explain to me the thinking of somebody who chooses not to join, the 5 percent who choose not to join, and yet they would like to make this contribution. Now maybe there's some, but what would be the thinking of such a person?
05-1589 +++$+++ 38225 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not asking them to make a contribution. It's asking them, is it okay with you if your money is used for this purpose. But keep in mind what the money is being used for here.
05-1589 +++$+++ 38226 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's the difference between that?
05-1589 +++$+++ 38227 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The money is being used --
05-1589 +++$+++ 38228 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's the difference between saying would you like to make a contribution, and would you like to allow us to use money that we possess for our purposes rather than returning it to us? What's the difference between those two?
05-1589 +++$+++ 38229 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, whether there is a difference or not, Justice Alito, the point is the union here is using this money for purposes that it has every reason to believe is in the interest of the vast majority of teachers, including --
05-1589 +++$+++ 38230 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well surely, they get to make that decision, don't they? Under the statute, it's their decision whether or not -- you don't get to say, well, this is in your interests, or whether you'd want to spend the money or not.
05-1589 +++$+++ 38231 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but I'm responding to the suggestion that there should be some kind of presumption that they would, would decline to authorize this. That's -- the question you raised, Mr. Chief Justice, is exactly the question before the Court, whether the State can, constitutionally can insist that the union obtain affirmative authorization for this particular type of speech and for no other type of speech. Let me -- let me suggest --
05-1589 +++$+++ 38232 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I still don't understand the thinking of these hypothetical people. If I'm a union member, I get various benefits. If I choose not to be a union member, I don't get those benefits. Why would I choose to give up the benefits of union membership and yet want to allow the union to spend my money for its political purposes?
05-1589 +++$+++ 38233 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, maybe Mr. -- Justice Alito, if you knew that what the union was spending its money for was to improve, to increase cost of living adjustments for teachers or to reduce class size for teachers, or to enact tax levies in local school districts --
05-1589 +++$+++ 38234 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is this all hypothetical, Mr. West, or is there any empirical evidence about what the people who are non-union members, if they had their druthers, would they say not a penny more goes into the union till than we are forced to put there? Is there any empirical evidence that divides up the universe of people who don't, deliberately don't join unions?
05-1589 +++$+++ 38235 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Justice Ginsburg, there's a lot of speculation on both sides. I don't think there's any empirical evidence, but there is plenty of reason to think that there are many reasons that people choose not to join the union, whether from a free rider motivation, whether from just not being a joiner, any variety of reasons. Some of them may be --
05-1589 +++$+++ 38236 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you're free under this system to send them the same sort of materials you send about your PAC and say we do all sorts of good things with the money from people who opt in, you should opt in.
05-1589 +++$+++ 38237 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yeah.
05-1589 +++$+++ 38238 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you want to do it without giving them that opportunity.
05-1589 +++$+++ 38239 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the question is whether the State can compel us to, to obtain that authorization for this limited type of speech.
05-1589 +++$+++ 38240 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Only if the State has given you the power to exact the money from these people. That changes everything. If this was money that they had contributed themselves, you'd have a different argument, but the State compels them to give you that money and the State says however, you will not use this money for this purpose without their consent.
05-1589 +++$+++ 38241 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It doesn't change everything, Justice Scalia, precisely for the reasons that you discussed in your opinion for the court in RAV versus St. Paul, the St. Paul cross-burning case, where you pointed out that, that the greater includes the lesser argument does not apply where you have content discrimination. The State could justifiably ban all symbols and displays that involve fighting words, but it could not single out a particular --
05-1589 +++$+++ 38242 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That brings us back to the question I asked earlier and I suggested in my answer to that I don't think it's content discrimination of the sort that triggers strict scrutiny when the government gives money for a particular purpose only and not for other purposes, and I also don't think it's content discrimination of the sort that triggers strict scrutiny when the government allows a private organization to use governmental power to exact money from people for a particular purpose only. That's a different ball game.
05-1589 +++$+++ 38243 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, imagine, if I may take a little bit starker example, imagine that what the government said in the statute that the union must obtain affirmative authorization if it is going to use agency fee funds to support Democratic candidates, but not if it's going to support Republican candidates. Obviously it couldn't do that.
05-1589 +++$+++ 38244 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I see that you've put a lot of weight on this argument.
05-1589 +++$+++ 38245 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that -- it goes further than this. That's viewpoint discrimination. But this is content discrimination and the Court has held in Consolidated Edison and a number of other cases that that is also a constitutional problem.
05-1589 +++$+++ 38246 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What you're saying right now, if it is, is ballots versus candidates under the word "election."
05-1589 +++$+++ 38247 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly.
05-1589 +++$+++ 38248 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that has a lot of implications for all kinds of campaign finance law that has nothing to do, I think, with unions.
05-1589 +++$+++ 38249 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly.
05-1589 +++$+++ 38250 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the lower court didn't consider it, and is this open now, if it's going back for other things such as the State Constitution, for them to consider this matter on remand?
05-1589 +++$+++ 38251 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it would be open to them to consider. I also think it's a matter that when we get to that point at least --
05-1589 +++$+++ 38252 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I don't know, perhaps you don't know, what the implication of a decision say in your favor here would have for Vermont's campaign finance law or California's or some other.
05-1589 +++$+++ 38253 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Perhaps, but it's certainly true that on this, at least on this point of the lack of any compelling justification for restricting entities' contributions and expenditures in support of or in opposition to ballot propositions, the law, this Court's law, is fully clearly on that point. It's our submission, Mr. Chief Justice, that what you have here is a content-based restriction on WEA's ability to engage in political speech on issues of educational policy that are of vital importance to the 70,000 teachers that it represents.
05-1589 +++$+++ 38254 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could the State have a restriction requiring affirmative authorization for all union expenditures that fall within the Abood-Machinist line of cases?
05-1589 +++$+++ 38255 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. If this were -- particularly if this were --
05-1589 +++$+++ 38256 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If this were across the board as to all First Amendment rights an objecting member has, then the statute would be void -- would be valid, rather?
05-1589 +++$+++ 38257 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly if this were done in the statute that authorized the agency fee in the first place.
05-1589 +++$+++ 38258 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, it's done in this statute.
05-1589 +++$+++ 38259 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If it's done in this statute, the problem that would remain, Justice Kennedy, is this is an election law that presumably has to be justified on the basis of whether it promotes the integrity of elections. And when you have --
05-1589 +++$+++ 38260 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, my hypothetical is that there's a Washington statute or a Washington constitutional referendum provision, initiative provision, which says that as to all protected speech for non- union members who have moneys taken out, there must be affirmative authorization.
05-1589 +++$+++ 38261 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The State could do that, at least if it limited it to the public sector, where the State has the authority to authorize the amount of the agency fee. I believe the State could do that. The State could certainly -- some people have talked about the size of the Hudson notice. The State could impose requirements that the notice be clearer, that it be shorter. The state could impose that affirmative authorization requirement. The State could limit the --
05-1589 +++$+++ 38262 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Back to your example about the political party saying you can't use it for Democrats, what if they said, as they might have in the 1940s, you can use it for anybody except communist candidates?
05-1589 +++$+++ 38263 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that would be a problem, too. And that's --
05-1589 +++$+++ 38264 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
05-1589 +++$+++ 38265 +++$+++ TRUE +++$+++ MR. WEST +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would be viewpoint discriminatory, but here we have a legislative statute that, that it's content discriminatory, that can't be justified as a compelling State interest to promote the integrity of the elections, and we believe the judgment of the Washington Supreme Court should be affirmed. Thank you.
05-1589 +++$+++ 38266 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. West. General McKenna, you have 7 minutes remaining.
05-1589 +++$+++ 38268 +++$+++ FALSE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, thank you. First of all, I wanted to get back to a question raised by Justice Breyer concerning whether they get their money back. I took your question to refer to a hypothetical, but allow me to address the real circumstances in this case by referring to the joint appendix at 210-212. These are the pages covering the permanent injunction that was entered by the trial court. Under that permanent injunction, the WEA shall return to all agency fee payers who have not affirmatively authorized the use of their fees for expenditures, and it lays out the means of doing that. For the first 2 years there's an agreed-upon amount. For the next 3 years of the injunction there's another amount. But they do get their money back under that injunction. Referring to the issue of whether they waive or not, under the current process used by the WEA, referring to JA-198, which is the letter sent out on September 15, 2000, by the WEA to the non-members, you'll note the statement, quote: "If such written objection has not been postmarked by October 16, 2000, you will waive your ability to object." The State of Washington's position is that non-members should not be required to say no twice. They said no when they chose not to join the union. The union's position now is, well, we get to use your money for political purposes unless you say no a second time. That does not seem to be a reasonable default position to take and certainly we believe the State --
05-1589 +++$+++ 38269 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the State of Washington seems to think that's fine for everything other than election expenses.
05-1589 +++$+++ 38270 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, in terms of Section 760 the State of Washington does think that's fine because of the purpose of the statute and the purpose of Section 760, the purpose being to protect the integrity of the elections by several different means involving protecting --
05-1589 +++$+++ 38271 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, do you see an underlying constitutional problem as to non-election expenditures that are still political expenditures?
05-1589 +++$+++ 38272 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't take a position on whether there's a constitutional problem with regard to non- germane expenditures, Your Honor. But we do believe --
05-1589 +++$+++ 38273 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Didn't we take one in Abood?
05-1589 +++$+++ 38274 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry?
05-1589 +++$+++ 38275 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Didn't we take a position in Abood?
05-1589 +++$+++ 38276 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What I meant was --
05-1589 +++$+++ 38277 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I suppose the way the statute works, you have to opt in for the election expenditures, but you have to have a right to opt out for other non-germane.
05-1589 +++$+++ 38278 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Your Honor, the Chief Justice is correct, of course. What I thought the question was about was the question of whether or not all, all non-germane expenses must be opt-in, must be provided. That's all I meant. You're absolutely correct. Of course, in your decisions opt-out is satisfactory, and we're not saying that opt-out is not satisfactory here as far as the State's position is concerned. But what we are saying is that the State has the right to impose this additional requirement of affirmative authorization.
05-1589 +++$+++ 38279 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What do you say about his hypothetical involving Democrats versus Republicans?
05-1589 +++$+++ 38280 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, that would certainly seem to be viewpoint discrimination, and it would implicate --
05-1589 +++$+++ 38281 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, he says, well, this is content discrimination. Is that --
05-1589 +++$+++ 38282 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we do not agree that this is content, content discrimination. This is content neutral. 760 establishes a procedure, that is to say a requirement that must be met before the money may be used.
05-1589 +++$+++ 38283 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but it's content in the sense that only some speech has to be affirmatively authorized.
05-1589 +++$+++ 38284 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, that additional affirmative authorization does apply to this category of speech, influencing an election or operating a political committee. But we don't believe that it is problematic constitutionally any more than the argument of Taxpayers With Representations in the Reagan case was, where they argued that they had a constitutional right to receive tax deductible contributions and use them for lobbying. The Court found to the contrary. And indeed, Initiative 134 is about protecting individuals. It's about protecting individuals in Section 760. It says in the intent section --
05-1589 +++$+++ 38285 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can I just go back to, you mentioned my question.
05-1589 +++$+++ 38286 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, sir.
05-1589 +++$+++ 38287 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Your point of your answer to his hypothetical is, well, the viewpoint discrimination would be impermissible, but the content discrimination is permissible?
05-1589 +++$+++ 38288 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it is content discrimination, Your Honor, we believe it is permissible, yes, sir. And if it were viewpoint -- in the hypothetical, if there were viewpoint discrimination that would not implicate any constitutional right of the union, but it may very well implicate the Southworth interests of the non-member fee payers.
05-1589 +++$+++ 38289 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it content? I mean, it doesn't say which way you're trying to influence the election.
05-1589 +++$+++ 38290 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't believe it is content-based, Your Honor. As I said, we don't believe it is, because it's any election of any kind.
05-1589 +++$+++ 38291 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the content means a category of speech as opposed to what is the political position you're taking.
05-1589 +++$+++ 38292 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that is it's only in regard to influencing elections or operating a political committee, which is a second.
05-1589 +++$+++ 38293 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I thought that that was content. You could do it, say, in the press, but you couldn't do it over the air.
05-1589 +++$+++ 38294 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's my understanding, too. I think you got to get out of it some other way. I mean, you've got to say it's content but it doesn't apply when it's the government contributing money or it doesn't apply when you're applying it to money that's being coerced by the government.
05-1589 +++$+++ 38295 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-1589 +++$+++ 38296 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If that's yes, then the category here is election speech. If you're going to call a statute that treats election speech especially, then all of campaign finance regulation would fall in that category. And if you're going to use that distinction to say strict scrutiny applies, then strict scrutiny would apply to all campaign finance regulation. And courts never to my knowledge apply strict scrutiny to campaign finance regulation because there are speech interests on both sides of the equation.
05-1589 +++$+++ 38297 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. Of course, we believe that --
05-1589 +++$+++ 38298 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm glad you said yes to me because that implies a no to the last question. (Laughter.)
05-1589 +++$+++ 38299 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, I understand your question. (Laughter.)
05-1589 +++$+++ 38300 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And we believe that -- we believe of course that Section 760 is not subject to strict scrutiny, it is subject at most to a rationale basis; and that clearly there is a rationale basis for the State in this case to require the affirmative authorization of non-member fee payers.
05-1589 +++$+++ 38301 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can you get to the point you were about to make, what the purpose of the thing is?
05-1589 +++$+++ 38302 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, yes, Your Honor. Your Honor, the Supreme Court of Washington found a purpose of the entire law, Initiative 134, to be to protect election integrity. But 760 is one means of achieving that purpose by means of protecting individual interests. Similarly, Section 680 of this law, which, I apologize, is not in the joint appendix, but it's RCW 4217-680, which requires positive checkoff before an employer may deduct PAC contributions for any employee.
05-1589 +++$+++ 38303 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I just -- I'm sorry. May I just take you back to the point of the objective being protection of election integrity. As I understand it, so far as the protection of election integrity is concerned, with respect to these contributions, that is simply the obverse side or the flip side, if you will, of protecting the right of the dissenting union member or the non-joined -- strike that -- the non-union worker, to control the use of the funds that would be used for the political purposes. The one is simply the obverse of the other. Do you agree?
05-1589 +++$+++ 38304 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. We believe they are two sides of the same coin.
05-1589 +++$+++ 38305 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So by articulating that the election integrity is a purpose, the Washington Supreme Court should not be understood as excluding the protection of the non-member workers' interests?
05-1589 +++$+++ 38306 +++$+++ TRUE +++$+++ MR. MCKENNA +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. I would agree. Thank you.
05-1589 +++$+++ 38307 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General. The case is submitted.
05-1629 +++$+++ 38311 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first today in case 05-1629 Gonzales versus Duenas-Alvarez. Mr. Himelfarb.
05-1629 +++$+++ 38313 +++$+++ FALSE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court. The Ninth Circuit held that the term theft offense, an aggravated felony under the Immigration and Nationality Act, does not include aiding and abetting. That holding is incorrect. Indeed, it is so clearly incorrect that even respondent does not defend it. Respondent's aiding and abetting argument is that his violation of the California vehicle theft statute is not a theft offense under the INA, not because the California statute covers aiding and abetting and the theft offense does not, as the Ninth Circuit held, but because the California statute covers a certain kind of aiding and abetting, so-called natural and probable consequences rule, and a theft offense does not. That theory is slightly narrower than the Ninth Circuit's but it is mistaken for many of the same reasons. One of the reasons that the Ninth Circuit's holding is mistaken is that it would drastically limit the number of aliens who could be treated as aggravated felons based on a conviction obtained in any jurisdiction, because no jurisdiction distinguishes between principals and aiders and abetters and it is ordinarily not possible to prove that an alien in a particular case was not convicted as an aider and abettor. Respondent's theory would have the same effect when a conviction was obtained in any jurisdiction that obtains the natural and probable consequences rule.
05-1629 +++$+++ 38314 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Will you help me out on one mechanical point? As you probably know from your brief, I don't come from a jurisdiction that uses this rule and I'm just not used to it. I had thought -- and I guess I'm wrong -- that if the natural and probable consequences theory were used to prove, let's say, ultimately the offense of assault, in what started out as a theft case, that there would have to be a separate charge of assault but that the theory of proof would be the natural and consequences extension of aiding and abetting so that there would at least be on the record a charge of assault. And I take it that's not the case.
05-1629 +++$+++ 38315 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I don't think it is. I --
05-1629 +++$+++ 38316 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Otherwise, you wouldn't have this problem.
05-1629 +++$+++ 38317 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it is the case that the aider and abettor has to intend to aid and abet what is sometimes called the target crime. It also has to be the case that the principal has to then go on to commit some other crime, a subsequent crime. The issue then arises whether the aider and abettor who intended to assist the target crime is held liable for the subsequent crime.
05-1629 +++$+++ 38318 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But in any case in my example of -- of theft, and the further offense under natural and probable consequences being assault, the only charge against the defendant who aided and abetted would be a charge of theft; is that correct?
05-1629 +++$+++ 38319 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It could be. It could be. But in the course of proving the aider and abettor guilty of the subsequent crime on this natural and probable consequences theory, there would have to be proof that bore upon the target crime to show what his intent was with respect to the target crime and also whether the subsequent crime was a foreseeable consequence of the initial crime.
05-1629 +++$+++ 38320 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't understand it. How can he be convicted of -- of the consequential crime if he is never charged with the consequential crime? You charge him with the -- with the theft and convict him of assault?
05-1629 +++$+++ 38321 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Scalia. He would have to be charged with the subsequent crime.
05-1629 +++$+++ 38322 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, well I thought you -- I thought you answered --
05-1629 +++$+++ 38323 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Me too.
05-1629 +++$+++ 38324 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I didn't mean to say that. I meant to say he didn't have to be charged with the initial crime. In fact, even the principal wouldn't have to be charged with the initial crime or for that matter, any crime. The aider and abettor could be charged only with a consequent crime but in the course of proving that under the natural and probable consequences rule, there would have to be proof with respect to the target crime, because the elements of the natural and probable consequences rule depend upon what happened.
05-1629 +++$+++ 38325 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The theory being that anybody who intended to aid and abet a crime which naturally leads to another crime intended the other crime as well.
05-1629 +++$+++ 38326 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's the basic principle.
05-1629 +++$+++ 38327 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Himmelfarb, does the government urge that we consider the point that you're now arguing and the other points? You started out by saying everyone agrees that the rationale of the Ninth Circuit won't wash, but if we go beyond that, then we are deciding the question as a matter of first view instead of review. Does the government urge that we dispose of those issues anyway, even though they were not disposed of by the Ninth Circuit?
05-1629 +++$+++ 38328 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We think that the aiding and betting argument that respondent raises is fairly included within the question presented and that it should be resolved. We don't think the other two issues are fairly included within the question presented. We think that this issue is fairly presented within the -- fairly included within the question presented and should resolve --
05-1629 +++$+++ 38329 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it wasn't discussed by the Ninth Circuit, was it?
05-1629 +++$+++ 38330 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It wasn't, Justice Ginsburg, but it bears upon the question of what it means to say that an aggravated felony encompasses aiding and abetting. If the Court simply holds contrary to the Ninth Circuit's holding that aiding and abetting is included in an aggravated felony, it will leave open a very important question which we think the Court should provide guidance to the lower courts on. It would leave open the question of whether that means that there is some general Federal immigration law definition of aiding and abetting with which the law of aiding and abetting in the jurisdiction of conviction would have to be compared in every single removal case, at least potentially, or rather as we would submit, that Congress intended to cover the entire range of aiding and abetting under whatever formulation was used in any jurisdiction at the time the aiding and abetting provision was added to the Immigration and Nationality Act.
05-1629 +++$+++ 38331 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what about the remaining questions that were not decided by the Ninth Circuit?
05-1629 +++$+++ 38332 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, certainly the --
05-1629 +++$+++ 38333 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do we remand for those or what?
05-1629 +++$+++ 38334 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. It's open to -- it would be open to the Ninth Circuit. Assuming the Ninth Circuit were of the view that they were fairly raised in the Ninth Circuit, and also that they were fairly raised in the agency, it would be open to the Ninth Circuit to resolve those questions in the first instance. Let me just add that --
05-1629 +++$+++ 38335 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why would it have to be raised in the Ninth Circuit? I thought this case was controlled by a prior decision of the Ninth Circuit. Therefore, there was nothing more that was needed to take care of this case.
05-1629 +++$+++ 38336 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true. The Ninth Circuit didn't pass upon any issue except the question whether aiding and abetting as a general matter is included in a theft offense. Relying on a prior decision, it held that it wasn't, and sent the case back to the Board of Immigration Appeals. But there, I think it would still be fair for the government to argue that a particular theory that may be raised here in defense of the judgment wasn't properly raised either in the Ninth Circuit by respondent, or before the agency, such that that claim was not properly exhausted.
05-1629 +++$+++ 38337 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Himelfarb, you point out these last two issues are not, and probably correctly, that they are not fairly included within the question presented. Well, that would be disabling if indeed it was the petitioner that is seeking to raise those two additional issues. But here it is the respondent; and we can certainly reach those issues if we want to.
05-1629 +++$+++ 38338 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of course. Of course.
05-1629 +++$+++ 38339 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The respondent can seek to uphold the judgment below on whatever grounds he wishes.
05-1629 +++$+++ 38340 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of course.
05-1629 +++$+++ 38341 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So we can reach those other issues if we wish.
05-1629 +++$+++ 38342 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's ultimately a matter of the Court's discretion. Our submission is that the wiser exercise of the Court's discretion would not -- would be not to address the issue, particularly the last issue raised in respondent's brief.
05-1629 +++$+++ 38343 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the only thing that the Ninth Circuit held was that the definition of a theft offense in California is broader than the generic definition of theft. All of these arguments that are being discussed are ways in which that particular ruling is supported. I don't know why they wouldn't be considered subsumed under the Ninth Circuit's decision.
05-1629 +++$+++ 38344 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Mr. Chief Justice, we don't read the Ninth Circuit's order that way. We think the Ninth Circuit simply reversed on the strength of its prior decision in Penuliar. And in Penuliar, the Ninth Circuit clearly held the reason this California statute was not a theft offense was that conviction under it is possible under an aiding and betting liability theory. So insofar as the order relied on Penuliar, it was saying nothing more and nothing less than that respondent's conviction was not a theft offense because it is theoretically possible he was convicted as an aider and abettor and the definition of theft offense under the INA does not include aiding and abetting. Now as I was saying, I think it's important for the Court to make clear what it means to say, that aiding and abetting is included in the aggravated felony definition. And this -- the type of argument that respondent raises here, I think is important to keep in mind, is not limited to the particular aspect of aiding and abetting law on which he relies. There are a great many different formulations of the basic requirements of aiding and betting. Not only that they -- they vary not only from jurisdiction to jurisdiction but even within jurisdictions. So in the next case, you could imagine an alien or removal case arguing that because some other requirement of aiding and abetting law in the jurisdiction in which he was convicted is broader than the more typical formulation, that even though he was clearly convicted of, for example, murder, and even though the elements of murder in that jurisdiction perfectly match up with the federal definition of murder in the immigration statute --
05-1629 +++$+++ 38345 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Counsel, you're ahead of me, and I'm still back on the last question, but I take it your rationale for not reaching these other grounds would also apply to your argument that whatever the categorical definition, that this defendant was convicted of an actual theft offense, looking at the charging documents. That wasn't a basis for the Ninth Circuit's decision either.
05-1629 +++$+++ 38346 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, Mr. Chief Justice. Our main submission is that the Ninth Circuit relied on an issue of aiding and abetting. We petitioned on that question and the Court granted certiorari on that question. The three grounds on which respondent relies on defense of the judgment, even though they all vary in some sense from the Ninth Circuit's ground, two of them simply have nothing to do with aiding and abetting. The first ground is an aiding and abetting argument. It's slightly different from the one, slightly narrower than the one on which the Ninth Circuit relied, but we think it's fairly included and we think the Court should address it. We think the Court should reject it for the reasons I am attempting to articulate now. If you have a jurisdiction with a law of aiding and abetting that is broader, it can be characterized as broader in some sense than what might be thought to be the general notion of aiding and abetting, under the premise of respondent's theory, you could conceivably have this kind of argument in any removal case --
05-1629 +++$+++ 38347 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What if a particular jurisdiction has an entirely novel and fundamentally different theory of aiding and abetting? Is it simply sufficient that it is labeled aiding and abetting?
05-1629 +++$+++ 38348 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Alito, we think it would be perfectly appropriate for the Court to leave open the question that if at some point in the future, some entirely novel radical far-reaching theory of aiding and abetting were adopted, that would not be sufficient. I don't think as the law currently stands there is any such theory in any jurisdiction; and I think that Congress should be presumed when it enacted the aggravated felony provision, to be covering the field of possibilities. But if at some point in the future some jurisdiction decided that, you know, somebody could be strictly liable --
05-1629 +++$+++ 38349 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Himmelfarb, what about accessory after the fact, do your comments apply to that argument as well?
05-1629 +++$+++ 38350 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we think that that's not fairly included within the question presented. We think that's just a -- accessory after the fact is a separate crime
05-1629 +++$+++ 38351 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it may not be fairly included but as you've acknowledged, it is an argument asserted to defend the judgment.
05-1629 +++$+++ 38352 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. We think that the Court could resolve that issue along the lines we've suggested in our reply brief. Respondent's basic submission on that point is that the term -- the phrase in the California statute, any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, that in that phrase the term accessory means accessory after the fact. An accessory after the fact is not included in the definition of the theft offense. Therefore, the California statute is broader than a theft offense. It's our submission that the Court can assume that he's right about that but still rule for the government on the accessory after the fact issue, because whatever the statute might say, he was charged as a principal. And the law is clear that somebody charged as a principal --
05-1629 +++$+++ 38353 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How do we know that? I was looking at, what is it, 13-A? How do we know that that charge is as a principal? In the appendix to the petition.
05-1629 +++$+++ 38354 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Ginsburg, it tracks the language of the statute up to the point where the statute uses the phrase I just read. So it's principal language. It's theoretically possible that he was convicted as an aider and abettor because the law in California, as it is elsewhere, is that somebody charged as a principal can be convicted as an aider and abettor; but the law in California, as it is elsewhere, is that somebody charged as a principal cannot be convicted as an accessory after the fact. There is no language in the charging instrument to suggest that respondent was charged as an accessory after the fact.
05-1629 +++$+++ 38355 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But to accept your answer, we've got to look into a question of California pleading law which hasn't been passed on below.
05-1629 +++$+++ 38356 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's right. Respondent raises a number of arguments in response essentially to the argument I just made. We think they're all entirely insubstantial and could be rejected quite easily. But it may well be that the Court would think that the better course is not to address the accessory after the fact issue.
05-1629 +++$+++ 38357 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why wouldn't the better course be also not to decide the principal question you want us to decide on the broad ground that you want us to take, which is that if there are minor differences between what you might call the general law of aiding and abetting, it doesn't matter. Why wouldn't it be wiser to decide this on the simple ground that this kind of consequential liability is part of the general law of aiding and abetting, which you argue in your brief? So that would be the narrower ground.
05-1629 +++$+++ 38358 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be narrower ground. That is certainly our fallback position and we would not be at all unhappy if the case were resolved on that ground.
05-1629 +++$+++ 38359 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Even though that position has been widely criticized, I think. Is it the ALI Model Penal Code, which thinks it's a bad rule?
05-1629 +++$+++ 38360 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There has been some criticism of the rule, Justice Ginsburg, but it is applied in criminal cases in Federal courts; and whatever criticism there might be in the academic literature, even in some state decisions, we think it is just inconceivable that Congress would have intended that somebody could be convicted under this theory under the Federal criminal law and be subject to the same criminal penalties as a principal, and yet under the federal immigration law could not be subject to the same immigration consequences as a principal. So whatever grounds there are for criticizing it, it is the law in most places. And most importantly, we think, it is the law in Federal courts. Taking account of minor variations in formulation of aiding and abetting standards among jurisdictions would not only have the consequence of drastically limiting the number of aliens who could be found to be aggravated felons, because of the difficulty of establishing that someone was convicted as a principal rather than an aider and abettor. It would also complicate removal cases enormously, as I mentioned. The premise of respondent's aiding and abetting theory would suggest that in any case, it would be necessary for the immigration judge, board of immigration appeals and the reviewing court, to engage not only in an analysis of whether the principal offense of conviction matches some Federal definition, which itself can be a quite complex enterprise, but having done that, it would then have to go on and compare the aiding and abetting law of the state of conviction with some Federal aiding and abetting law.
05-1629 +++$+++ 38361 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In that former question as to whether California theft is general theft, do you propose the same rule? That even if California has some minor variations -- not just in aiding and abetting but in what constitutes theft -- minor variations from what the general national rule is, they should be disregarded? And if not, why not?
05-1629 +++$+++ 38362 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we think that -- we don't, first of all. And I think no court would say that and we certainly wouldn't. But there's a very important difference insofar as that type of comparison was concerned between on the one hand a principal offense and on the other hand aiding and abetting. The two important differences are if you have a general definition of the principal offense, whether it's a theft offense or burglary, any reasonable framework would contemplate that in a great many cases you would be able to tell whether the alien before the court was convicted of that offense, of the Federal definition of that offense, simply by looking at the State statute of conviction; and if it matches it, that's the end of the analysis. If it's broader, in most cases you'd be able to look at the charging instrument and see whether that person was charged with something narrower than the whole range of conduct that's covered by the statute. Under respondent's theory, if you were to apply that same approach to aiding and abetting you would never be able to look at the statute to see whether somebody was convicted under an aiding and abetting theory that matches the Federal definition because every statute includes aiding and abetting, so it's impossible to tell from the statute whether somebody was convicted as a principal or an aider and abettor. Then if you look at the charging instrument, that won't suffice either because the law everywhere as far as I'm aware is that somebody charged as a principal can be convicted as an aider and abettor. So the only cases in which you'd be able to establish that somebody was not convicted as an aider and abettor are the unusual cases where there happens to be something in the files of the criminal case that will explain in some admissible fashion whether the defendant was convicted as a principal or an aider and abettor. That's the first important distinction. The second --
05-1629 +++$+++ 38363 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you would limit your rule just to aiding and abetting and not to other minor variations, just minor variations in the aiding and abetting definition?
05-1629 +++$+++ 38364 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. I mean, our submission is that Congress's intent in enacting an aggravated felony provision that captures aiders and abettors was that minor variations in formulation wouldn't matter for the reasons I'm giving. So it's ultimately a matter of Congressional intent. The second reason why this is important is because if you were to apply that rule to aiding and abetting you would be saying, in effect, that in any jurisdiction that applies a broader rule of aiding and abetting every single crime in the criminal code would not qualify for aggravated felony status, because an aiding and betting statute runs with the entirety of the criminal code and is a potential theory of liability for every substantive criminal offense. So that would mean that in those, those broader aiding and abetting jurisdictions, nothing could ever be an aggravated felony unless the government could somehow search through the criminal files and find something to prove that in fact the defendant was not convicted under an aiding and abetting theory.
05-1629 +++$+++ 38365 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Himmelfarb, before your time runs out, there's something curious about this California statute. This one is in the Motor Vehicle Code, and there's this offense in the Penal Code called car theft. Do you know what the difference between those two and what would move a prosecutor to charge under the Penal Code as opposed to the Vehicle Code?
05-1629 +++$+++ 38366 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the theft offense that covers cars under than this one in California that I'm aware of, Justice Ginsburg, is just a grand theft statute, which is just general theft as applied to particular circumstances, one of which is the theft of a car.
05-1629 +++$+++ 38367 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's mentioned in what, 487(d)?
05-1629 +++$+++ 38368 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. That's right. And as I understand it, that is essentially a larceny statute, which encompasses a common law larceny rule, which is that there has to be an intent to steal or, stated differently, that there has to be an intent to deprive the owner of the car, of the car permanently, whereas the California vehicle theft statute at issue here is a broader statute in that it doesn't require any intent to steal. It doesn't even require a taking. A driving is sufficient. So it would capture the receipt of stolen property. And it doesn't require an intent to deprive the owner of the car permanently. It would be sufficient if there was an intent to deprive the owner of the car temporarily.
05-1629 +++$+++ 38369 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It covers joyriding?
05-1629 +++$+++ 38370 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it would cover -- it would cover what is colloquially known as joyriding if it fell within the terms of the statute. That is, if there was an intent to deprive the owner of the property. And on the subject of joyriding, let me --
05-1629 +++$+++ 38371 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Temporarily.
05-1629 +++$+++ 38372 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At least temporarily. Respondent makes much of the fact that on our reading of the statute, on our understanding, that a theft offense would cover the California vehicle theft statute here. That would mean that joyriding would be included. But I think it's critical to keep in mind that there are two very important limitations in the Federal definition of theft offense. The first is that, as interpreted by the Board of Immigration Appeals, it does require an intent to deprive the owner of property, and a great many unauthorized use of vehicle statutes in the State don't have that element. That's one important limitation. The other is that many of these statutes are misdemeanor statutes, so somebody convicted of it would not be sentenced to more than a year in prison. By the terms of the theft offense provision of the aggravated felony provision in the INA you have to be sentenced to at least a year in prison in order to be treated as an aggravated felon. So we think the vast majority of what is colloquially known as joyriding cases would not fall within this particular aggravated felony.
05-1629 +++$+++ 38373 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But in California they would? Or is there a separate joyriding --
05-1629 +++$+++ 38374 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Joyriding in California would be prosecuted under this statute. But unless there was an intent to deprive, there could be no conviction, and unless the sentence was at least a year it would not be treated as an aggravated felony.
05-1629 +++$+++ 38375 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it the sentence given or the sentence prescribed for the crime?
05-1629 +++$+++ 38376 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The sentence given, Justice Scalia.
05-1629 +++$+++ 38377 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Given.
05-1629 +++$+++ 38378 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd like to reserve the remainder of my time.
05-1629 +++$+++ 38379 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Himmelfarb. Mr. Meade.
05-1629 +++$+++ 38381 +++$+++ FALSE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: I would like to pick up on the point made by Justice Ginsburg. This case does not involve a conviction under California's car theft statute, which is Penal Code 487(d), which requires an intent to steal. Rather, it involves a conviction under California's Vehicle Code, which covers varied and less serious conduct including liability with or without the intent to steal and also expressly reaching accessories after the fact, which the Government concedes would make it broader than the generic definition of theft. The question is whether a conviction under this statute is a theft offense and therefore an aggravated felony triggering the extremely serious consequences of automatic deportation from the United States, a permanent bar from the United States, and in the sentencing context a sentencing enhancement from 2 to 20 years for illegal reentry.
05-1629 +++$+++ 38382 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your friend began his argument by saying you don't defend the decision of the Ninth Circuit below on aiding and abetting. Is that correct?
05-1629 +++$+++ 38383 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do defend the judgment of the Ninth Circuit.
05-1629 +++$+++ 38384 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I know the judgment, but you focused at least primarily on other grounds than the one on which the Ninth Circuit relied. Is he correct that you concede that merely because the statute extends to aiders and abettors that is not sufficient to take it out of the categorical treatment?
05-1629 +++$+++ 38385 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As an abstract general matter divorced from the facts of this case and divorced from California law, we agree that aiding and abetting liability is part of a generic definition of any crime, including the theft offense here. However, that's not what the Ninth Circuit stated in either this case or in Penuliar. In Penuliar the Ninth Circuit stressed the extremely broad nature of California's aiding and abetting liability. It cited a case, People v. Beeman, which refers to the specific natural and probable consequences doctrine under California law. So the Ninth Circuit was talking about the broad sweep of aiding and abetting liability under California law.
05-1629 +++$+++ 38386 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could I ask a factual question? I'm just curious. If the Government's statement of the facts here is correct, your client, a Peruvian, was convicted of burglary in 1992 and convicted of possession of a firearm by a felon in 1994, and nonetheless was made a lawful permanent resident in 1998. How does that happen? Is that a mistake or -- how do we decide who's admitted as a lawful permanent resident?
05-1629 +++$+++ 38387 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know the answer to the question except to state that those two, those convictions did happen in the years that you state and he did become a lawful permanent resident in 1998. I believe it was through a waiver provision under the INA that that's how he became a lawful permanent resident.
05-1629 +++$+++ 38388 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He's not a joyrider anyway.
05-1629 +++$+++ 38389 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would disagree with that. All we know in this case from the record is that he was not charged with 487(d) car theft, which requires an intent to steal. He was rather charged under a conviction which covers joyriding. In my reading of the Government's brief, the Government doesn't contest that joyriding would put a statute outside the generic definition of theft offense. Even in the Government's presentation today, the Government suggested that in most States joyriding would be outside the generic definition of --
05-1629 +++$+++ 38390 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So then the Ninth Circuit was wrong in your opinion when it defined generic theft as the taking or exercising control over property without consent, with the intent to deprive the owner of rights and benefits, even if it is less than permanent or total? They're wrong in your opinion?
05-1629 +++$+++ 38391 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't think they're wrong.
05-1629 +++$+++ 38392 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well then, I don't see how you make --
05-1629 +++$+++ 38393 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure. I'd be happy to --
05-1629 +++$+++ 38394 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't that inconsistent with what you just said?
05-1629 +++$+++ 38395 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
05-1629 +++$+++ 38396 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why not?
05-1629 +++$+++ 38397 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it's not inconsistent. We don't take the position that a permanent deprivation is required, is required. A less than permanent is sufficient, as the Ninth Circuit stated in Corona-Sanchez. The Ninth Circuit has subsequently held that a joyriding offense is outside that definition because it includes a brief taking with an intent to return, and the last footnote of the Government's brief, note 8, cites that Ninth Circuit case.
05-1629 +++$+++ 38398 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't understand how that could be right, though. I mean, when you joyride it's less than personal. In other words, their definition is if you take somebody else's property for an hour that that isn't theft, but if you take it for a day it is?
05-1629 +++$+++ 38399 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The question has to do with how long of the taking. And at common law --
05-1629 +++$+++ 38400 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They're trying to -- is there a common law, because they're trying to report -- is under the common law there a rule or any generic rule that says if you take somebody else's property for a couple of hours it is not theft, but if you take it for several hours or several days it is theft?
05-1629 +++$+++ 38401 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is a generic rule on this, and there is a consensus among the vast majority of States. I point to both Professor LeFave as well as the Model Penal Code. And what these rules say -- and this is true in the vast majority of States, 42 States by our count -- is that if you take either permanently or for an unreasonable amount of time such that it would deprive the owner of the significant portion of the economic value, then that constitute a theft offense.
05-1629 +++$+++ 38402 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You shouldn't steal it for an unreasonable amount of time, just for a reasonable amount of time?
05-1629 +++$+++ 38403 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Excuse me.
05-1629 +++$+++ 38404 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't understand the concept of stealing something for a reasonable amount of time.
05-1629 +++$+++ 38405 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I mean, that goes to the exact point, Justice Scalia, because we're not -- the question is what is stealing. The question --
05-1629 +++$+++ 38406 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're saying that the rule is something is theft only if you take it long enough to deprive an owner of a significant portion of its value?
05-1629 +++$+++ 38407 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Or a reasonable time, or to place --
05-1629 +++$+++ 38408 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no, no. Wait. I want to know where that comes from, because I would think I have a Volvo. It lasts for about 30 years, apparently. So I guess if you took my car for a year, that that then would not be a theft, or maybe it would be. Where is the source of the rule you just cited?
05-1629 +++$+++ 38409 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The source is the generic definition as applied in all of the States.
05-1629 +++$+++ 38410 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. I want a book. I want a book that will tell me that if they take my car for a month it isn't theft, but if they take it for a year it is. What book, or where do I look to verify that this is common law? I'm not denying what you're saying. I just want to know where to look.
05-1629 +++$+++ 38411 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure. Two sources. One would be Professor LeFave in his discussion of what the intent required for the different theft offenses; and the second source would be the Model Penal Code when it sets forth the requisite mens rea for theft offenses.
05-1629 +++$+++ 38412 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That was the third reference to the Model Penal Code, so I have to ask. No one's enacted the Model Penal Code, have they?
05-1629 +++$+++ 38413 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. But in Taylor and in Seidler this Court used the Model Penal Code as a shorthand for the generic definition of a certain crime. But we don't rely on the Model Penal Code.
05-1629 +++$+++ 38414 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would you describe the Model Penal Code as closer to restatement or aspirational in terms of its reflection of the existence of general law?
05-1629 +++$+++ 38415 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would say that the Model Penal Code is consistent with the majority view. On this question of intent to steal, as we set forth in our brief, 42 States hold what we say the law is, that an intent to steal -- a theft offense requires a mens rea more than taking with an intent to give back.
05-1629 +++$+++ 38416 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You assert, you assert it's consistent with the majority view on this issue, not on everything. What does it say about the death penalty?
05-1629 +++$+++ 38417 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure what it says about the death penalty. On this issue.
05-1629 +++$+++ 38418 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that what joyriding is? That when you're done with your joy ride, you return the car where you picked it up? I thought they just abandoned it wherever you happen to be.
05-1629 +++$+++ 38419 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you abandon the car wherever you happen to be that's not joy riding. That's covered by traditional larceny principles. In the, the case of State v. Davis from 1875 involves that exact principle. That is larceny in that case. But however, if someone takes a car, a teenager, a neighbor takes a car, drives it around the block, brings it back to the same place, that is joyriding. That is covered by 108.51.
05-1629 +++$+++ 38420 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's the joy in that? (Laughter.)
05-1629 +++$+++ 38421 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The joy apparently is you don't get convicted of theft. (Laughter.)
05-1629 +++$+++ 38422 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But what we have here is statute that criminalized conduct less serious than car theft. This is -- 108.51 is the only statute in California that covers joyriding. There's a whole different provision that deals with car theft. In cases where that's the appropriate charge, prosecutors will charge the person with car theft and meet the burden of proof. Here we're dealing with a less serious crime, a less serious statute and the question is whether this statute that require a very minimal mens rea, with or without intent to steal, is sufficient to lead to the very serious consequences of being an aggravated felony.
05-1629 +++$+++ 38423 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you understand that point to be what the Ninth Circuit relied on?
05-1629 +++$+++ 38424 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Absolutely not. The Ninth Circuit didn't rely on that. It was presented to the Ninth Circuit but the Ninth Circuit did not rely on that.
05-1629 +++$+++ 38425 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So if we decided on the question, the aiding and abetting question, they did decide this would available to you to argue on remand?
05-1629 +++$+++ 38426 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Uh, yes.
05-1629 +++$+++ 38427 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because you presented it to the Ninth Circuit below.
05-1629 +++$+++ 38428 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, it would. I would like to also to address the question of accessory liability under California law. 108.51 expressly covers accessories. The Government concedes that if that term means accessory after the fact, then this statute is outside the generic definition of a theft offense. Under California law, accessory has only one meaning, and that one meaning is accessory after the fact. On that ground alone, this statute is broader than a generic definition of theft offense and would provide a -- an alternate ground of affirmance in this case.
05-1629 +++$+++ 38429 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Meade, the Government says that definition holds for penal code offenses, but it's not altogether clear that a definition in the penal code would carry over to the vehicle code.
05-1629 +++$+++ 38430 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I have two responses, Justice Ginsburg. First, there's a similar provision to 108.51 covering the taking or operating of an airplane. It is in the penal code. It is 499(b). It exactly mirrors the language of 108.51. So presumably the Government would agree that the definition of accessory under California law in the penal code would cover 499(b) for the same reasons it would cover under 108.51. Moreover, accessory under California law only has one meaning. In 1872 the California legislature passed the provision at issue, Section 32 and said accessory is defined to be accessory after the fact. At the same time, the legislature passed other provisions which also used accessory in that consistent way. The California Supreme Court as early as 1898 stated that accessory means accessory after the fact and relatedly, accessory before the fact, the only other plausible meaning of the term, has no meaning under California law. So with all due respect to the Government, accessory in 108.51 means accessory after the fact and that alone makes a broad and generic definition of theft offense.
05-1629 +++$+++ 38431 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So wouldn't it odd for this Court to decide that issue of California law?
05-1629 +++$+++ 38432 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I wouldn't think it would be odd, Justice Alito, because it is so clear. It has to do with a statutory term. It has to do with a statutory term that's defined under the California statute. Moreover, under a Taylor inquiry, Federal courts are often required to look at state law to figure out whether a particular provision is within or outside a generic definition of a crime.
05-1629 +++$+++ 38433 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course if you're right about this it would mean the statute is broader, but it would still be available to find out whether your client was in fact convicted as an accessory or as a principal.
05-1629 +++$+++ 38434 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
05-1629 +++$+++ 38435 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now is that -- is it possible? Or is that out of the question in this case?
05-1629 +++$+++ 38436 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. Is what possible?
05-1629 +++$+++ 38437 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it possible from pleading documents, from the charge, to determine whether he was convicted as an accessory or not? And if it's clear that he wasn't, then we're just wasting our sometime in arguing this point, aren't we?
05-1629 +++$+++ 38438 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I disagree. Because as an initial matter, this case in our view is about the categorical approach. But as to your question about what these documents show, no, the documents in this case do show that he was an accessory after the fact or a principal, but the Government has failed to meet its burden one way or the other.
05-1629 +++$+++ 38439 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, they say you cannot be convicted as an accessory unless you are charged as such, and that the documents show he was charged as a principal.
05-1629 +++$+++ 38440 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We disagree with that characterization of the Government as we set forth in our brief. California law does not require someone to be charged with that specific -- level of specificity. And that's something we set forth in our brief. Moreover --
05-1629 +++$+++ 38441 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well how about how -- how the defendant was charged in this very case? Mr. Himelfarb thought that it was plain from that charge, that's on 13(a), that he was charged as a principal. And you must take the view that this charge, this information was inadequate to identify him as principal.
05-1629 +++$+++ 38442 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This charge is ambiguous as to whether he was charged as a driver and taker, as the principal, or as an accessory after the fact.
05-1629 +++$+++ 38443 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no, no. It says, "who at the time and place last aforesaid did willfully and unlawfully drive or take a vehicle." I mean, he is -- he's charged with being the person who took the vehicle, not, not some subsequent accessory.
05-1629 +++$+++ 38444 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, this is a question of California law.
05-1629 +++$+++ 38445 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It is not a question of Cal -- it is a question of English.
05-1629 +++$+++ 38446 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I disagree, Your Honor. I mean, it's a question of California law what needs to be charged in a California charging document.
05-1629 +++$+++ 38447 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We're not saying about what needs to be charged. We're talking about what was charged. And it seems to me there's no question what was charged is that he did willfully and unlawfully drive or take a vehicle. There is no way you can consider that an accessory.
05-1629 +++$+++ 38448 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I disagree. Because under California law you need to charge generally under the statute, and the statute says drive or take. That's how he was charged. Moreover, though, under California law, the charging document does not necessarily control the conviction.
05-1629 +++$+++ 38449 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but you're -- you're saying then despite the fact that the, the indictment in this case said he willfully et cetera did this, it would be open to California to prove that in fact he didn't do any of those things, but was merely an accessory after the fact? That -- that's your position? That's what California pleading law allows?
05-1629 +++$+++ 38450 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-1629 +++$+++ 38451 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. JUSTICE STEVENS? Do you have any case on that?
05-1629 +++$+++ 38452 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. People v West and People v Toro.
05-1629 +++$+++ 38453 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Both West and Toro.
05-1629 +++$+++ 38454 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. W-e-s-t, and People v Toro. There's also the case of Sandoval which is also cited in our brief.
05-1629 +++$+++ 38455 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does any of those cases squarely hold that he could be convicted of being an accessory after the fact on a general indictment like this?
05-1629 +++$+++ 38456 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, none of them do. They talk about the general principle under California law, about that a charging document does not necessarily control the ultimate conviction and sets forth the test that needs to be applied. But on this question --
05-1629 +++$+++ 38457 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the Government -- it is not only that. The Government has authority going the other way. People versus Prado, "in the absence of a statute, an accessory after the fact must be indicted and convicted as such." If you look at this information, it's clear that he's not being indicted as an accessory after the fact.
05-1629 +++$+++ 38458 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we think People v Prado supports our view which is a statute specifically that allows for accessory liability on its face. So, therefore, a person need not be charged under the different accessory statute. However, to the extent this Court finds the charging documents or ultimate conviction ambiguous, which it sounds like some members of the Court may believe it is, this is a question of California law, as a first point; but moreover, the question here is whether the Government has met its burden under Taylor and Shepard. And under Taylor and Shepard the inquiry is whether it can necessarily be shown that someone was convicted of a generic definition; and here, given the ambiguity under California law, it can't be said that --
05-1629 +++$+++ 38459 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what do we do about that? No, you have no interest in answering my question, but the question, it seems to me under the law, here is what I do -- and I'm a good deference lawyer, as you are. I simply look at the statute. And I imagine some very weird case that the statute could cover where the person wouldn't have the right intent or it wouldn't be theft or it would be some odd thing. There's no possibility in the world that applied to my client. But most charges are simply stated in the wording of the statute. And most judgments simply say guilty. So I say "see, you see, it is theoretically possible." And now when you decide what really happened, Court, you're supposed to look only to the charging documents in the judgment; and you can't say it didn't. So the whole congressional scheme is basically put to the side. Now what's the answer to that problem, insofar as you want to answer it?
05-1629 +++$+++ 38460 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course, I'd be happy to. I don't think it puts the whole scheme aside. Remember, the Government gets two bites at the apple here. They get a first bite on the categoric approach where all they need to show is that all the elements are within the generic definition of the crime. We'd be dealing with a different case if the person was charged under the penal code which doesn't require -- which requires intent to steal and which does not cover accessories after the fact. So the Government gets a free pass on round one. On round two, on the modified categorical approach as we're discussing here, the Government gets a second chance to -- based on actual documents in the record to establish whether there's enough there. Here the Government relies on the charging document in an abstractive judgment, but the Government does not put in a plea colloquy, it does not put in plea allocution, it does not put in any other documents that would establish under Shepard that someone was necessarily convicted of the crime. So what -- the Government here is asking to be relieved of its burden of proof which it has in this case. I would like to note that on the --
05-1629 +++$+++ 38461 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the charging document you acknowledge would suffice if it indeed is California law that in order to convict as an accessory you have to charge as an accessory? You would acknowledge this?
05-1629 +++$+++ 38462 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I would acknowledge the charging document unto itself, but not taking into account the fact that the charging document and the conviction not match. I would note, though, that the Court need not go to the modified categorical approach, and I would say should not. This is something that the board -- the agency has been able to deal with for 60 years or so, dealing with the actual documents, trying to figure out a whether particular charging document is or is not enough. In Shepard itself, which actually dealt with the question of which documents could or could not be considered, the Court did not go further and look at the next step and decide whether those particular documents did or did not meet the definition in that case. I'd also like to note to the extent that this Court finds California charging law ambiguous or hard to understand, under the principle of Jett v Dallas Independent School District, the circuit courts are in a better position to consider a matter of California State law in the first instance. So our accessory argument is that the Court should decide the categorical approach alone on the accessory after the fact ground and remand to the agency for consideration under the modified approach. I'd like to also stress that if the Court were to affirm on that ground it would be a very narrow holding. There's only two other statutes in California that expressly include accessories after the fact. California's car theft statute does not include accessories after the fact.
05-1629 +++$+++ 38463 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In order to agree with you on the accessory point, though, don't we have to decide two disputed issues of California law? Whether accessory here in this statute means accessory after the fact, and whether if somebody is charged under that statute as an accessory, that has to be alleged specifically in the indictment, or whether it is just sufficient to charge the person with the offense.
05-1629 +++$+++ 38464 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Court would only need to decide that first question, not the second question. The first question is what is the meaning of accessory under California law. That is sufficiently clear in our view that the Court need not send it back to the Court of Appeals. The second question under the modified approach is outside the core of what this case is about, and we suggest that that should be remanded to the Ninth Circuit or the agency.
05-1629 +++$+++ 38465 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Has anyone ever been prosecuted as an accessory after the fact to joyriding?
05-1629 +++$+++ 38466 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do not know one way or the other, Your Honor. But I also note that we don't know whether anyone has been prosecuted under 108.51 on that ground, we also do not know whether someone has been prosecuted under Section 32, which is the accessory after the fact provision, or more generally on that ground.
05-1629 +++$+++ 38467 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if no one has ever been prosecuted as an accessory after the fact for joyriding, we'd really have to go out on a limb to construe this charging document which charges him as a principal as actually meaning to charge him as an accessory after the fact, wouldn't we?
05-1629 +++$+++ 38468 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not necessarily, because what we have is a statutory provision that clearly covers accessories after the fact. We do not have an example of someone who was charged under 108.51, but there are many reasons why that may not show up, partly because the charging documents don't need to so provide, in our view. So figuring out who was and who was not an accessory after the fact or a principal under 108.51 is not so easy to distill.
05-1629 +++$+++ 38469 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Have you been able to think of any examples where a person could have been, convicted of this statute, under the statute would he actually have been some kind of accessory to another person committing another crime, and the natural and probable consequence was that that other person would violate this statute?
05-1629 +++$+++ 38470 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So --
05-1629 +++$+++ 38471 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Have you been able to think of one?
05-1629 +++$+++ 38472 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure. So you're switching to the natural and probable consequences?
05-1629 +++$+++ 38473 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, I am.
05-1629 +++$+++ 38474 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, and I thank you for that question. Someone who, say, could aid and abet, or have the intent to aid and abet purchasing alcohol for a minor, a natural and probable consequence of that could be joyriding. I would also like to -- turning to the question of the natural and probable consequences doctrine, the government is incorrect when it states that the majority view accepts the natural and probable consequences.
05-1629 +++$+++ 38475 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are there cases that hold that the natural and probably consequences of purchasing alcohol for a minor could be joyriding?
05-1629 +++$+++ 38476 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We have not found a case on that. However --
05-1629 +++$+++ 38477 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or anything else that somebody might do after getting intoxicated?
05-1629 +++$+++ 38478 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Partying maybe I would understand. I don't know about joyriding.
05-1629 +++$+++ 38479 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The natural and probable consequences theory cuts across a wide variety of crimes, as the government points out. So it would also cover the different provisions under the INA such as burglary, theft, and other provisions as well. The government, though, is incorrect in stating that the natural and probable consequences is a majority view. Even in its brief, the government only sets forth 22 states that it says apply that analysis. Those 22 states that the government cites, many of them do not support the proposition that it is a majority view or even applied in those states. For example, just to give a couple of examples, the government cites Missouri as a state that applies the natural and probable consequences doctrine. However in Missouri, in the very case cited by the government, People v. Evans, the court rejects the use of the natural and probable consequences doctrine and says, "The use of the natural and probable consequences doctrine was error as a matter of law." The same is true -- and that's on the same page the government cites. The same is true with respect to Maryland, where the same footnote that the government cites rejects the natural and probable consequences doctrine in favor of a narrower theory. It's also true in Idaho, Louisiana, Georgia and Texas, also do not apply the natural and probable consequences doctrine. So what, the government here is seeking to hold someone guilty of a theft offense as an aggravated felony without the requisite mens rea, and something that's a minority view of the states. Just to put this into context, under the natural and probable consequences doctrine, it's as if California passed a statute saying that in some cases someone can be guilty of burglary without the mens rea of burglary, or saying that one can be guilty of theft without the mens rea of theft.
05-1629 +++$+++ 38480 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your argument isn't limited to theft offenses, correct? That would cut across all of these areas in which the federal law refers, in which a Taylor analysis would apply?
05-1629 +++$+++ 38481 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, it would. So it would not necessarily apply to the non-Taylor provisions such as the one --
05-1629 +++$+++ 38482 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It would mean we could not rely on the categorical approach in almost any of those cases?
05-1629 +++$+++ 38483 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As -- on the first step, yes.
05-1629 +++$+++ 38484 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, the categorical approach.
05-1629 +++$+++ 38485 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does mean that, Your Honor.
05-1629 +++$+++ 38486 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well then, what's an example of where you're held guilty on the ground that you aided and abetted natural and probable -- somebody did X and the natural and probable consequence was Y. Because after all, you are properly held guilty when you do an act and a known consequence is Y. So what's an example of that?
05-1629 +++$+++ 38487 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure. I'd be happy to give a number of examples.
05-1629 +++$+++ 38488 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ One would be good enough. The best one.
05-1629 +++$+++ 38489 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you intend to aid and abet robbery, you intend to aid and abet robbery, you can be held liable for an unintended rape of another. If you aid and abet --
05-1629 +++$+++ 38490 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's a known and probable consequence? That's a probable consequence?
05-1629 +++$+++ 38491 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-1629 +++$+++ 38492 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well then, maybe the problem is that they don't define natural and probable consequence properly.
05-1629 +++$+++ 38493 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, this is how it's applied under California law. To give another example --
05-1629 +++$+++ 38494 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wait a minute. That's a real case?
05-1629 +++$+++ 38495 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's a real case, and I'll give you the cite. People v. Banks, 2002 Westlaw 192, 720. There's another case cited in our brief, aid and abet robbery, natural probable consequence, sex offenses, that's the People v. Nguyen case. Another example, a person who has the intention to aid and abet battery, beating someone up, can be held guilty for an unintended robbery. And to show how stark this is, this is in California, it's broader than even the common law.
05-1629 +++$+++ 38496 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It sounds like the doctrine of unnatural improbable consequences. (Laughter.)
05-1629 +++$+++ 38497 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're asking us to say that not only do the states have to have the same rule, but they have to interpret the rule the same way. This would make the application of the categorical approach impossible. You'd have to look not only to the expression of the rule of law by the state courts, but to its application by the state courts in every jurisdiction. I mean, that just makes the whole enterprise infeasible, it seems to me.
05-1629 +++$+++ 38498 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What the Taylor analysis looks to is what's in the heartland of a certain crime, and here what's in the heartland of aiding and abetting. And what we have here is an aberrant doctrine of California law that is outside the mainstream.
05-1629 +++$+++ 38499 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me tell you, what's aberrant is the California interpretation of the standard doctrine that is used in many states, which is you intend the natural and probable consequences of what you do. And if California has, some California courts have come up with weird notions of that, I don't know that that destroys the uniformity among the states.
05-1629 +++$+++ 38500 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Just to briefly respond?
05-1629 +++$+++ 38501 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, sir.
05-1629 +++$+++ 38502 +++$+++ TRUE +++$+++ MR. MEADE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The rule that you state is that one intends the natural and probable consequences of one's own acts. We do not dispute this rule. The question is as applied to aiding and abetting liability, and California is one of a handful of states that applies the natural and probable consequences doctrine to aiding and abetting liability, which has the novel and aberrant consequences of holding people liable even if they don't have the requisite mens rea for the offense.
05-1629 +++$+++ 38503 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Meade. Mr. Himelfarb, you have four minutes remaining.
05-1629 +++$+++ 38505 +++$+++ FALSE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would it be completely inconsistent with Taylor versus United States for us to say that when there is a novel or an unusual theory of potential liability such as proposed by the respondent, which would exonerate him from application of this statute, that he has the burden to show that that's what happened?
05-1629 +++$+++ 38506 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we think --
05-1629 +++$+++ 38507 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would Taylor allow us to do that sort of burden shifting?
05-1629 +++$+++ 38508 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well ultimately, Justice Kennedy, we don't think that Taylor controls on the question of what Congress's intent was under the INA. Ultimately Taylor was a question about Congress's intent in enacting the Armed Career Criminal Act, and every aspect of that decision was tied in some way to Congress's intent there. We think Congress's intent in enacting the aggravated felony provision of the INA has to be that it didn't intend that you would have these highly arcane comparisons of some general definition of aiding and abetting, which either would or wouldn't include the infinite variety of formulations of aiding and abetting.
05-1629 +++$+++ 38509 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And so your general rule to accomplish your objective would be?
05-1629 +++$+++ 38510 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's the one I suggested when I was up here earlier, which is a holding by this Court that Congress intended to include aiding and abetting liability in the aggravated felony provision, and intended to cover whatever formulations were extant in 1988 when the provision was enacted. The Court can leave open the possibility that if in some future case, some jurisdiction were to enact an extraordinarily far reaching theretofore unheard of formulation, for example, anybody who intentionally insists -- assists -- without regard to whether the person even knew about the principles of criminal conduct, could be held liable as an aider and abettor. In that circumstance, it might well be the case that a state, by adopting such a far reaching theory of aiding and abetting, would in effect forfeit the right to have any of the subsequent provisions in its criminal code treated as aggravated felonies unless the government in the immigration case could somehow prove that the alien wasn't convicted as an aider and abettor.
05-1629 +++$+++ 38511 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think that, the problem I guess that I have with your argument, is that the theory of Taylor and as carried forward in Shepard was that there was a concept of a generic offense. And when aiding and abetting liability is extended in the natural and probable consequences theory, we face the fact that regardless of what the actual count is, even on your count, there isn't even a majority of states that do it. And I have difficulty seeing how that can, therefore, form an element of a generic offense when it is -- or a generic concept of the offense -- when it is a minority view.
05-1629 +++$+++ 38512 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, even under our fallback position, Justice Souter, under which you would have to come up with some general definition of aiding and abetting and then make a comparison with the law of aiding and abetting in the jurisdiction of conviction. And even if it's, you know, 20-20 or 18-18 among the states on this particular wrinkle in the law of aiding and abetting, we think it is frankly dispositive in this case, that it is the Federal rule, and my friend Mr. Meade has not disputed that. We think it's just inconceivable that Congress would have intended that in a Federal criminal case if you're charged with murder, you can be convicted under a natural and probable consequences theory such that you could conceivably spend life in prison the same way a principal would, and yet you would not be subject to the same immigration consequences as somebody convicted of the principal offense of murder, and indeed, that you wouldn't even be able -- the government wouldn't be able to --
05-1629 +++$+++ 38513 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why didn't we simply take the closest Federal definition as being the touchstone?
05-1629 +++$+++ 38514 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- in Taylor?
05-1629 +++$+++ 38515 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
05-1629 +++$+++ 38516 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that one of the problems in Taylor was that there really is no Federal definition of burglary. That's part of it. The other part of it is to some extent, the Court did rely on the Federal definition in Taylor. The original version, the original version of the office statute defined burglary, and it defined it in a generic way which was broader than the common law rule.
05-1629 +++$+++ 38517 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was Taylor an immigration case?
05-1629 +++$+++ 38518 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it wasn't. It was a criminal case.
05-1629 +++$+++ 38519 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you are in effect, you would say that the rule should be, or the modified Taylor rule for application here should be that it's either got to fall within the concept of the Federal offense, or in default of there being a comparable Federal offense, a generic offense defined by reference to state practice?
05-1629 +++$+++ 38520 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ May I answer the question?
05-1629 +++$+++ 38521 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Certainly.
05-1629 +++$+++ 38522 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our primary submission is that in the context of aiding and abetting, there shouldn't be any generic definition beyond what the states apply, whatever the formulation. Our fallback position is essentially what you just described, and we think we should prevail under it because we think we have the Federal rule. We think we have the majority rule in the states. And we have the common law rule as well.
05-1629 +++$+++ 38523 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Himmelfarb. The case is submitted.
05-1631 +++$+++ 38527 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Case 05-1631, Scott versus Harris. Mr. Savrin.
05-1631 +++$+++ 38529 +++$+++ FALSE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, may it please the Court: This case concerns whether a police officer could be held personally liable for using force to terminate a dangerous high-speed pursuit. The undisputed facts show that Deputy Scott did not violate the Fourth Amendment. Respondent had led the police officers on a nine-mile pursuit at exceptionally high speeds. As the videotapes that have been admitted in evidence show, Respondent was driving on narrow two-lane roads at night. He swerved across the double line to pass cars that were in his path, actually traveling in the wrong lane of travel. He ran through a number of red lights. He weaved through a shopping center and collided with Deputy Scott's vehicle. Deputy Scott at that point had tried to block the exit from the shopping center, but Mr. Harris was successful in using his vehicle to escape. At that point, he continued driving at exceptionally high speeds.
05-1631 +++$+++ 38530 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can I ask this question about the shopping center. Wouldn't your case be exactly the same if the shopping center incident had not occurred?
05-1631 +++$+++ 38531 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would, Your Honor.
05-1631 +++$+++ 38532 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So that we really don't have to get distracted by the shopping center?
05-1631 +++$+++ 38533 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is a -- yes, Your Honor. There is a factual dispute as far as whether Deputy Scott's vehicle collided with Mr. Harris' vehicle or vice versa, but we do not believe that that is a material dispute. We believe that the fact, the undisputed fact, that Mr. Harris was driving at such exceptionally high rate of speeds -- and to put in context, 90 miles per hour, which is the average speed, and of course --
05-1631 +++$+++ 38534 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm not sure why you concede that. I mean, I looked at the case and it seemed to me it's a case involving the whole ball of wax. And I suspect my reaction to that tape was in part affected by the fact that he went through the shopping center, came out and crashed into a police car, which is what Scott saw.
05-1631 +++$+++ 38535 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But Scott -- yes, Your Honor, I think that is part of the analysis.
05-1631 +++$+++ 38536 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So how do I know whether, which of these things is directly or not indirectly -- well, you go ahead. But I mean, are you -- am I not supposed to look at the part which involves the shopping center?
05-1631 +++$+++ 38537 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Your Honor. My point was that, the point was that there was a collision, not who caused the collision, whether the deputy pulled into Mr. Harris' line of travel or Mr. Harris pulled towards the deputy.
05-1631 +++$+++ 38538 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is the rule that you propose that the policeman must balance the risk of harm to others versus the risk of harm to the fleeing person?
05-1631 +++$+++ 38539 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor -- yes, essentially.
05-1631 +++$+++ 38540 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Your brief says that the officer reasonably believes that doing so, i.e., terminating the chase, would avoid a greater risk of bodily injury or death.
05-1631 +++$+++ 38541 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. And we believe --
05-1631 +++$+++ 38542 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Greater than what? Greater than --
05-1631 +++$+++ 38543 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Greater than not taking action. In other words, that the harm --
05-1631 +++$+++ 38544 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Without reference to the possible harm to the driver? I just want to know what you're testing.
05-1631 +++$+++ 38545 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that -- I think that is one of the factors to be considered.
05-1631 +++$+++ 38546 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't know that I agree with that. I mean, if this fellow driving 90 miles an hour is responsible for endangering people, you're proposing a rule that says if there's a 50 percent chance that he'll hurt some innocent person and a 50 percent chance that he'll get hurt if you try to stop him, you shouldn't do anything. I don't agree with that.
05-1631 +++$+++ 38547 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor --
05-1631 +++$+++ 38548 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'd stop him. I mean, he's the fellow that's causing the danger, endangerment, isn't he?
05-1631 +++$+++ 38549 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, I would agree with that.
05-1631 +++$+++ 38550 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think you're giving away too much.
05-1631 +++$+++ 38551 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ One thing I did want to point out is that a speed of 90 miles per hour -- and of course there's evidence in the record that the vehicles were at times traveling over 100 miles an hour --
05-1631 +++$+++ 38552 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I didn't mean to put words in your mouth. It seems to me your test might be whether there is a greater risk in stopping him or not stopping him as to other people, without reference to the risk to himself.
05-1631 +++$+++ 38553 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that's probably a better articulation.
05-1631 +++$+++ 38554 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it's your brief. I want you to --
05-1631 +++$+++ 38555 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's a better articulation of what the appropriate test would be, the way --
05-1631 +++$+++ 38556 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, isn't the speed also relevant to the likelihood that -- that running into a car at that speed would cause the death of a driver?
05-1631 +++$+++ 38557 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would, Your Honor.
05-1631 +++$+++ 38558 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't it a fair high probability that if you hit someone at that speed that there will be something, either death or serious injury as a result?
05-1631 +++$+++ 38559 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, my answer to that question would be that that's always going to be the case whenever force is used to stop a vehicle at this high rate of speed.
05-1631 +++$+++ 38560 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I suppose there is also a high probability where you're going 90 miles an hour on a one-way road, crossing over the double yellow line, with oncoming traffic, that you're going to hurt somebody else.
05-1631 +++$+++ 38561 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-1631 +++$+++ 38562 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, the more you increase the speed the more likely he's going to be hurt. But also the more likely if you let him go somebody else is going to be hurt.
05-1631 +++$+++ 38563 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. And to put it in a more complete perspective, 90 miles an hour is mathematically equivalent to over 130 feet per second.
05-1631 +++$+++ 38564 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But Mr. Savrin, there was an episode in the parking lot where things came to a temporary halt. If Scott had stopped pursuing Harris at that point, maybe Harris would not -- maybe he would have slowed down. If he was -- he was trying to flee from the police, but if the police weren't after him there is no indication that he would have been speeding.
05-1631 +++$+++ 38565 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I would disagree with that, that in fact --
05-1631 +++$+++ 38566 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, he was speeding before the police knew about him, right? That's the whole, where this all started.
05-1631 +++$+++ 38567 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The initial offense was speeding, and Mr. Harris, instead of pulling over or slowing down as would might be expected by a reasonable person, sped up and continued to drive recklessly. We would contend that it was Mr. Harris that was in control of the force that the officers need to terminate, the risk that he presented. At any time, any time, Mr. Harris could have either slowed down his vehicle or stopped, and he chose not to do that.
05-1631 +++$+++ 38568 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, do you contend that an officer can always use deadly force to stop a high-speed driver who's creating this kind of a risk?
05-1631 +++$+++ 38569 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it depends on how you define deadly force. Of course, there can be different --
05-1631 +++$+++ 38570 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Running into him with a high probability that he'll get killed.
05-1631 +++$+++ 38571 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that, that would be the case, as I indicated, whenever an officer uses force to stop a vehicle at this speed. I think there is -- if it is deadly force, and of course this Court has not articulated a test of that particular question --
05-1631 +++$+++ 38572 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Wasn't that acknowledged in the district court, in the trial court?
05-1631 +++$+++ 38573 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this case?
05-1631 +++$+++ 38574 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
05-1631 +++$+++ 38575 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, the district court found that it did not need to resolve whether or not -- --
05-1631 +++$+++ 38576 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the jury might find that it was deadly force.
05-1631 +++$+++ 38577 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Eleventh Circuit found that the jury might conclude it was deadly force.
05-1631 +++$+++ 38578 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And do you conclude that the jury could not find that it was deadly force?
05-1631 +++$+++ 38579 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe, again, Your Honor, I believe that it depends on how broad the test is. The Model Penal Code test, which most of the circuit courts --
05-1631 +++$+++ 38580 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but is your -- is it your view that a jury could not find on these facts that there was deadly force?
05-1631 +++$+++ 38581 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe, yes, under, under the test as articulated in some of the circuits, yes, this would not be deadly force. Of course, what we're saying is --
05-1631 +++$+++ 38582 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought we had a test for deadly force in Garner and it's whether or not there is -- it's more likely than not, whether or not there is a serious risk that death will ensue. That's the test, Garner.
05-1631 +++$+++ 38583 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, as I read the Garner opinion, the court did not need to reach a definition of deadly force because shooting someone in the back of the head is clearly going to be deadly force. The circuit courts -- I can tell you that the circuit courts in the wake of Garner have said that Garner did not create a test and have created different tests along the lines of the Model Penal Code to reach that definition. But the point -- I was going to say a point that I would like to make is that there are degrees even within the continuum that might be within a definition of deadly force, such as using a vehicle to make contact, blowing out the tires, using stop sticks, using a firearm. Those have different degrees of potential lethality, so even if they are all considered deadly force there are decisions that an officer has to make.
05-1631 +++$+++ 38584 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What test, what of deadly force would not be met here?
05-1631 +++$+++ 38585 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ A likelihood -- --
05-1631 +++$+++ 38586 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Considering that it's a summary judgment issue.
05-1631 +++$+++ 38587 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. I would say that the Third Circuit decision in the Philadelphia litigation case, where the officers dropped a bomb on a building in order to gain access and they ended up killing 11 people. The Court found that that was not deadly force because the officers were trying to gain access to the building and they reasonably believe that they were able to do that without the loss of life. I think that if that definition were applied to this case, then I think that this would not be deadly force. But I think --
05-1631 +++$+++ 38588 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Finish that.
05-1631 +++$+++ 38589 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry. I keep interrupting you.
05-1631 +++$+++ 38590 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Excuse me. He reasonably -- because Scott reasonably believed that he could bump the car off the road at 90 miles an hour without risking the driver's life? Is that why it's like the Third Circuit case?
05-1631 +++$+++ 38591 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, his intent was to end the pursuit, not to cause an accident.
05-1631 +++$+++ 38592 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but the Third Circuit case you just described didn't talk about intent. It talked about reasonable belief.
05-1631 +++$+++ 38593 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, let me cite another case then, the Adams case from the Eleventh Circuit.
05-1631 +++$+++ 38594 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Before do you that, will you go back to the Philadelphia case. Do you contend that a jury could find that he reasonably believed that he would not cause, that he would not raise a serious risk of death or serious bodily harm by bumping the car at 90 miles an hour?
05-1631 +++$+++ 38595 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. And if I --
05-1631 +++$+++ 38596 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't understand that. How could such a belief be reasonable? What am I missing here?
05-1631 +++$+++ 38597 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Let me cite the Court to the Eleventh Circuit's own reasoning in the Adams case. And that case involves a misdemeanant where the officer intentionally made contact with the vehicle several times. The last contact caused the death of a passenger. The Eleventh Circuit found that Garner did not apply to that situation and further said that a policeman's use of his vehicle is very different from a policeman's use of his gun.
05-1631 +++$+++ 38598 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That doesn't answer my question.
05-1631 +++$+++ 38599 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, Your Honor.
05-1631 +++$+++ 38600 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why, why would it be reasonable to believe that a car could be bumped at 90 miles an hour plus without raising a substantial risk of death or serious bodily harm? How could such a belief be reasonable?
05-1631 +++$+++ 38601 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because there are vehicle collisions every day, Your Honor, that do not end in death or serious bodily harm.
05-1631 +++$+++ 38602 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Some people are lucky. We're talking about creating a substantial risk. How would it be reasonable to assume that one would not create a substantial risk?
05-1631 +++$+++ 38603 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, because Mr. Harris could have regained control of his vehicle. The point is that Mister -- that the Petitioner had limited options based on the manner in which Mr. Harris was driving. Even if this would be considered deadly force, we do believe it would be justified under the circumstances.
05-1631 +++$+++ 38604 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's a different issue and you may prevail on other arguments in the case. But as to whether or not there's a likelihood or a reasonable likelihood of serious injury, it seems to me that's clearly a question for the jury. I mean, we might argue about it up here, but that's classic jury question, isn't it?
05-1631 +++$+++ 38605 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe in the context of the Fourth Amendment and the Graham factors and the question of probable cause, that it's not the same as simply a jury question. But I do concede that if it's not deadly force it's very close to it. But I think the important thing is that, whatever force Mister -- the Petitioner used was limited by Mr. Harris' driving.
05-1631 +++$+++ 38606 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Savrin, one technique that Officer Scott asked permission to use was described as a PIT technique that would be a life and limb-sparing measure. One oddity about this case is that he called and asked permission to use that less risky method and yet when he determined that he couldn't do that, given the speed of the vehicles, he didn't ask permission to do what he did do, which was life-endangering.
05-1631 +++$+++ 38607 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, if I could respond to that in two respects. First, it is not, it is not the case that the PIT maneuver, as it's commonly called, is safe. What it does is spin the car out, and if Mr. Harris' vehicle had been spun out in this case it is more likelihood that he would have lost control. In other words, it causes the vehicle to lose control. The second response I would have is that the Petitioner did ask permission to do the PIT maneuver and the permission that the supervisor gave, which was Mr. Faninger that's in the record undisputed, was to use force up to deadly force. So Mr. --
05-1631 +++$+++ 38608 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where is that?
05-1631 +++$+++ 38609 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's in Mark Faninger's deposition, and he is the supervisor that was --
05-1631 +++$+++ 38610 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And he said he gave permission for more than PIT procedure?
05-1631 +++$+++ 38611 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. His testimony was that he was giving, he believes he was giving permission up to and including deadly force.
05-1631 +++$+++ 38612 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the phrase used was "take him out," wasn't it?
05-1631 +++$+++ 38613 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes, Your Honor.
05-1631 +++$+++ 38614 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does a police officer have any obligation in a situation like this to consider other alternatives, and if so what other alternatives might have been available to this officer?
05-1631 +++$+++ 38615 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Stevens. I think the officer had very limited options, two options at that point: Either use force or let Mr. Harris go. And I think it was a balancing of --
05-1631 +++$+++ 38616 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And even with letting him go, isn't it possible they could get other roadblocks up ahead or get other people involved in the attempt to catch him?
05-1631 +++$+++ 38617 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, there always are other potentials. However, I would submit that a vehicle traveling at 130 feet per second can do a lot of damage in a very short period of time before the police officers can figure out what route he's going to take.
05-1631 +++$+++ 38618 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't it true that there's no traffic on the road at that particular time?
05-1631 +++$+++ 38619 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Deputy Scott took the action that he did because there was a low likelihood of injury to third parties other than to Mr. Harris because there was no one in his immediate path of travel.
05-1631 +++$+++ 38620 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, in that circumstance why wouldn't he just consider discontinuing the chase?
05-1631 +++$+++ 38621 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because there were -- the videotape shows that Mr. Harris passed approximately 36 cars during this period of time. 12 seconds before the contact was made, a vehicle was passed by Mr. Harris. There was a high likelihood, in fact a probability, that this case was going to end in tragedy, and Deputy Scott took the action that he could.
05-1631 +++$+++ 38622 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would that have been likely if the officer had discontinued the chase?
05-1631 +++$+++ 38623 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Whether he discontinued the chase or not, Mr. Harris could still injure whoever might be around the next corner, Your Honor. If there are no further questions, I'd like to save my time for rebuttal.
05-1631 +++$+++ 38624 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Savrin. Mr. Garre?
05-1631 +++$+++ 38626 +++$+++ FALSE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: When a suspect disobeys a lawful command to stop, races off in a reckless attempt to elude the police, and demonstrates a disregard for his own life and the lives of others in his path, the police may use force, including deadly force, to bring the suspect's vehicle flight to a halt and protect the public safety.
05-1631 +++$+++ 38627 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does it matter exactly what the nature of the escape was? Are we supposed to evaluate whether this was reckless enough? Well, let's say the driver did not go off 90 miles an hour. Let's say he obeyed the speed limit. He just wasn't going to stop. Does that make it a different case?
05-1631 +++$+++ 38628 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does, Your Honor. The key determination is whether the officer on the scene reasonably determines that the vehicle poses a substantial risk to other motorists or the police in his way.
05-1631 +++$+++ 38629 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I would think that would apply to all high-speed cases; would you not agree?
05-1631 +++$+++ 38630 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree that it does, Justice Kennedy. Here what you have is an individual who's going extraordinarily high speeds, 80 to 100 miles an hour. An individual who has passed cars, crossed the double, double line; there were numerous motors, motor vehicles on the night. And an individual who has ran red lights, an individual who when three police cars --
05-1631 +++$+++ 38631 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. But that was while he was being chased, right? Before being chased he hadn't done any of this. He was going 72 miles an hour in a 55-mile zone, isn't that right.
05-1631 +++$+++ 38632 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's true, Your Honor. But as the Court said in the Sacramento versus Lewis case, we don't blame police for the individual's reckless flight in that context. We don't blame police that Respondent made a decision to just --
05-1631 +++$+++ 38633 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No but if you're thinking of the likelihood of harm if they discontinued the chase, is it not reasonable to assume he might go back to going 72 miles an hour in a 55-mile zone?
05-1631 +++$+++ 38634 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not on this record, Justice Stevens. In this particular --
05-1631 +++$+++ 38635 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It would might also be reasonable to assume that anyone who was chased by the police will immediately speed up to 90 miles an hour.
05-1631 +++$+++ 38636 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right, Justice Sc alia.
05-1631 +++$+++ 38637 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It doesn't seem to me a very good rule to give to police forces: Anybody who's going 72 miles an hour, let him go. Or at least if he hits 90, let him go.
05-1631 +++$+++ 38638 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We agree, Justice Scalia. As Justice Kennedy put it Sacramento versus Lewis, if there's a real danger --
05-1631 +++$+++ 38639 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There isn't a question. There is a question of whether it justifies the use of deadly force, to prevent this -- this situation.
05-1631 +++$+++ 38640 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The question in our mind, Justice Stevens, is whether Deputy Scott reasonably believed that Respondent posed a serious risk of injury or death to other motor vehicles, bystanders or police on the roadway that night.
05-1631 +++$+++ 38641 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why are these absolute? I mean I looked at Garner and then I looked at Graham and Graham which came later said that all claims that officers have used excessive force, deadly or not, should be analyzed under the Fourth Amendment and its reasonableness standard. So I guess -- isn't that right, isn't that the law?
05-1631 +++$+++ 38642 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We agree, Your Honor.
05-1631 +++$+++ 38643 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right, if that's the law, then whether -- of course an automobile could, could kill people. Of course it can. So can a lot of things. But an automobile isn't a gun, and a chase on the highway is not a chase through a back yard, though both could end up with the person being chased dead. So aren't we supposed to look at all the circumstances, including the circumstance of what -- one that interests me, one, is that the right standard? Two, did Scott know that the reason he was chasing this person was because he had violated a speed limit, or was he ignorant of the reason why the individual was racing away at 90 miles an hour, which is as far as the record could show?
05-1631 +++$+++ 38644 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, to answer the second question first, Scott did not know that he was initially in a chase.
05-1631 +++$+++ 38645 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And a reasonable juror could not conclude to the contrary?
05-1631 +++$+++ 38646 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Scott, I believe, Scott's testimony was that he did not know. What Scott knew, and he was engaged in the chase, was this is an individual who had crossed cars, crossed the double yellow line. This was an individual who had ran red lights. This was an individual, when three police squad cars converged on him in the shopping center parking lot, collided with them and ran off into the highway, reaching again speeds up to 90 miles an hour.
05-1631 +++$+++ 38647 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it reasonable for him to suppose that there might be something more going on if the guy is trying this hard to get away from a speeding ticket? That presents he presents a danger to the community quite apart from the driving?
05-1631 +++$+++ 38648 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
05-1631 +++$+++ 38649 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that a factor that goes into the analysis?
05-1631 +++$+++ 38650 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is, certainly, at a commonsense level. Statistic show that most vehicles who flee in this fashion, oftentimes there is alcohol or drug abuse involved, oftentimes they are stolen vehicles. We don't think --
05-1631 +++$+++ 38651 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What if they knew there were drugs in the car that he would dispose of if he had got caught. Would that justify this using deadly force?
05-1631 +++$+++ 38652 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure that it would, Justice Scalia -- uh, Justice Stevens.
05-1631 +++$+++ 38653 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm rather clear it would not, isn't it? Because that would be no more serious than the crime in Garner, would it?
05-1631 +++$+++ 38654 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well -- that's true. The key, the key point about this case is the threat that Respondent posed in the -- suspects who engage in high speed vehicle chases pose to the public, and that is, that is fundamentally different from Garner for the reason that you mentioned. Garner involved --
05-1631 +++$+++ 38655 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But your position would be the same even if Scott knew that the only reason they were trying to stop him initially was the speeding violation?
05-1631 +++$+++ 38656 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. It doesn't matter why the chase began. The point is that when Scott made the decision to use force against Respondent, he reasonably determined that Respondent posed a grave threat to other motorists, the police and any bystanders who might come in his way.
05-1631 +++$+++ 38657 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why, why wouldn't it matter? I mean, other things being equal, suppose that he known that all that happens, suppose he was two miles beyond the speed limit. And Scott knew the whole thing or Scott was the one who did it, and he says maybe he is a young kid who is frightened and he has his license number and he could get him later. I mean, why wouldn't it be nutty to -- to try to bump somebody off the road, when all, that's all that's at stake?
05-1631 +++$+++ 38658 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because, Your Honor, regardless of the reason the chase began, at the moment that Deputy Scott used the force, this car posed a serious risk to everyone else on the road that night. Someone traveling 90 miles an hour, up to 90 miles an hour, on a two-lane windy road with numerous cars passing during this course of the chase, it was that threat that Deputy Scott acted against when he used that force, and that was a reasonable use of force. It's reasonable regardless of whether or not this Court determines --
05-1631 +++$+++ 38659 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How do you deal with the Brower case? That it was a 193 -- 83 action against the police for setting up a roadblock to catch a speeder. And the Court said that the roadblock was enough to give rise to a 1983 claim?
05-1631 +++$+++ 38660 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, the holding in that case was that a roadblock amounted to a seizure. And we don't, no one disputes there was a seizure in this case when Deputy Scott intentionally used force to put Respondents off the road. So it respect, Brower doesn't speak to the question in this case, which is whether or not that use of force was reasonable under the circumstances. Justice Kennedy in the Sacramento versus Lewis case, in his concurring opinion, say that there was a real danger of adopting a constitutional rule that suspects are free to disobey lawful commands.
05-1631 +++$+++ 38661 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I just make this one point? Is it correct that the issue is whether it's reasonable or is the issue whether a jury could find it unreasonable?
05-1631 +++$+++ 38662 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- ultimately to determine whether this decision could be made at the summary judgment stage you would have to consider whether a jury could find it unreasonable. Here, on the relevant undisputed facts, we submit as a matter of law, Deputy Scott reasonably believed that this force was necessary under the circumstances. And the final point that I wanted to make, going back to Justice Kennedy's concurrence, is that there is a real danger in adopting that kind of constitutional rule, that it will encourage more suspects to flee, and will only increase the danger to the public and to police and to motorists in these high speed chases. I would urge this Court to reverse the decision below. If there are no further questions --
05-1631 +++$+++ 38663 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Garre. Mr. Jones.
05-1631 +++$+++ 38665 +++$+++ FALSE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court. I'd like to begin by responding to some of the questions that were asked of Petitioner. First of all, Officer Scott himself admitted in his testimony that he knew at the time that he was using deadly force, and he realized at the time that he was likely to cause injury or -- death or serious injury to Mr. Harris.
05-1631 +++$+++ 38666 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there any doubt that Mr. Harris was likely to cause death or serious injury to the other cars on the highway that he was passing?
05-1631 +++$+++ 38667 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Harris was simply a -- an unsafe driver. There is always a risk at driving in excess of speed limit, driving in violation of traffic laws. But that risk in and of itself is not --
05-1631 +++$+++ 38668 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We are not talking about driving in violation of traffic laws. We talking about 90 miles an hour on a two-lane highway, swerving past cars in the incoming traffic --
05-1631 +++$+++ 38669 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we're talking --
05-1631 +++$+++ 38670 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Hitting -- after hitting Officer Scott's car and continuing on. That's a little more than just unsafe.
05-1631 +++$+++ 38671 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, those are not the facts before the Court, Mr. Chief Justice. The facts are that he was driving fast but he was under control. He only crossed the center line to pass and when he passed, he used his turn signal when he passed.
05-1631 +++$+++ 38672 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He used the turning signal. That's like the strangler who observes the no smoking sign. (Laughter.)
05-1631 +++$+++ 38673 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ When he turned into the -- when he turned into the shopping center he wasn't weaving through a parking lot. He was going through a private access road in a shopping mall which was closed at 11 o'clock at night. And the collision, the impact occurred when Officer Scott, who was going too fast to make the turn into the shopping center, went up to the next intersection, came around the other way to head my client off at the pass. And then what happened was that Mr. Harris took evasive action to a avoid collision when Mr. Harris -- excuse me when Officer Scott -- put himself right in Mr. Harris' way.
05-1631 +++$+++ 38674 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Jones, I looked at the videotape on this. It seemed to me that he created a tremendous risk of drivers on that road. Is that an unreasonable way of looking at the -- at this tape?
05-1631 +++$+++ 38675 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He created the scariest chase I ever saw since "The French Connection." (Laughter.)
05-1631 +++$+++ 38676 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It is frightening.
05-1631 +++$+++ 38677 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As a --
05-1631 +++$+++ 38678 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ A frightening amount of speed, and cars coming in the opposite direction, at night, on a two-lane windy road --
05-1631 +++$+++ 38679 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, as the Court below found, and as the tape indicates, Mr. Harris didn't run anybody off the road. He didn't ram anybody. He didn't try to ram anybody. He was just driving away.
05-1631 +++$+++ 38680 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The question was whether he was creating a substantial risk doing that.
05-1631 +++$+++ 38681 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He was creating --
05-1631 +++$+++ 38682 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And my, my question is how could a jury find otherwise? Your answer up to this point is that well, he used signal lights and his reflexes were good, and they sure were. But the question is whether he was creating a substantial risk of death or serious bodily harm to others. And my question is leaving -- assuming that his reflexes were good and he knew how to use the signal lights, how could the jury fail to find that he was creating such a risk?
05-1631 +++$+++ 38683 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the jury could certainly find he's creating a risk. But with regard to the other Garner factors that must be shown before deadly force can be used, he had not committed a violent felony, a crime involving the infliction or threat of infliction --
05-1631 +++$+++ 38684 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Garner was not talking about someone who at the time the deadly force was used was himself creating a substantial risk of death or serious bodily harm to others. That's what we are dealing with here. And the reasonableness of the officer's action depends on whether, at the summary judgment stage, a jury can reasonably find that, in fact, he was not creating at that moment, a substantial risk of serious bodily harm or death to others. And my question is, how could a jury find anything else?
05-1631 +++$+++ 38685 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, a jury could find that the pursuit by the officer escalated the risk rather than diminishing the risk to others. And that given a choice between using deadly force to terminate a pursuit where the officer himself had escalated the risk versus backing off, letting the offender escape and then perhaps arresting him an hour later at the house.
05-1631 +++$+++ 38686 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did Scott, know that? Did Scott -- Do you have evidence to show that Scott knew that the underlying offense was a speeding violation?
05-1631 +++$+++ 38687 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We have evidence that it was called out on the radio. "I'm pursuing somebody." Whether Scott knew we don't know.
05-1631 +++$+++ 38688 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And Scott has testified he didn't know it.
05-1631 +++$+++ 38689 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Scott has testified he --
05-1631 +++$+++ 38690 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, do you think you can get to the jury on the question of whether he knew it.
05-1631 +++$+++ 38691 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Scott --
05-1631 +++$+++ 38692 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'd like a yes or no answer.
05-1631 +++$+++ 38693 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The testimony --
05-1631 +++$+++ 38694 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That doesn't sound like yes or no.
05-1631 +++$+++ 38695 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not certain I understand the question.
05-1631 +++$+++ 38696 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The question is, can you get to the jury on the question of whether Scott knew that the underlying offense was for speeding?
05-1631 +++$+++ 38697 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Scott did not know that was it.
05-1631 +++$+++ 38698 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. If Scott didn't know it, I mean, my goodness, then I don't see the relevance of whether it was speeding or not. And I was with you when I read the -- the opinion of the court below. And I read the other brief. I was on the other side. Then I've been shifting back and forth. Then I look at that tape, and I have to say that when I looked at the tape, my reaction was somewhat similar to Justice Alito's. And so if it's doubtful and then you can't even show that the person who did it knew that this was for speeding rather than for murder, how can you get to the jury?
05-1631 +++$+++ 38699 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there is certainly a credibility issue as to whether Scott says he knew or didn't know. I mean, certainly the call on the radio he could have acquired. The thing is that --
05-1631 +++$+++ 38700 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, as the Chief Justice indicated through a question earlier, isn't it reasonable for an officer to assume that it is -- he is trying to escape because there is something more serious than speeding at stake? I mean, that's the assumption I would draw.
05-1631 +++$+++ 38701 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That assumption would not be based upon probability or based upon police training. Officers in pursuit situations are trying to believe --
05-1631 +++$+++ 38702 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You mean just as many people take off in high speed chases for speeding as for serious crimes?
05-1631 +++$+++ 38703 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The vast majority have committed minor crimes. And it's not a rational --
05-1631 +++$+++ 38704 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But at the moment Scott came into this case, what difference does that make? Why is that even relevant? Let's assume Scott knew that this entire situation had eventuated out of an 18 mile in excess of speed act by the individual. Assume that. What Scott also knew at the point at which he joined the chase was that this individual was driving a car at 90 miles an hour. He was crossing yellow lines, going through red lights, et cetera. At that point, wasn't the only legally relevant data whether or not Harris was creating the risk of death or bodily harm to others?
05-1631 +++$+++ 38705 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's the issue. Was there an immediate risk of death or serious bodily harm --
05-1631 +++$+++ 38706 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you agree that whether Scott knew or didn't know, that this whole scenario had eventuated out of a speeding situation was irrelevant?
05-1631 +++$+++ 38707 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not relevant. It's relevant to that termination. Yeah, the issue is, is there an immediate risk. But one of the factors that is significant is what is the severity of the underlying crime. And if it is a crime of violence, then certainly the officer is entitled to presume --
05-1631 +++$+++ 38708 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's exactly where I started. And I wondered -- that's what I'm uncertain about the standard for this. Because as you and the others have been arguing, if the question is one about rules surrounding the use of deadly force. But then when I read what I read out to you, in Graham, it seemed to me that Graham, which comes after Garner, says that's not the standard. Graham is a standard of simple reasonableness and Garner is simply an illustration of that as applied to guns and a backyard chase, not as applied to cars which threaten other people much more.
05-1631 +++$+++ 38709 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's a good question.
05-1631 +++$+++ 38710 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what is the standard? Am I supposed to apply -- am I not supposed to apply Graham?
05-1631 +++$+++ 38711 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, whether you apply Garner or Graham, the result is the same in this case. And let me explain why. What Graham did is it expanded the Garner rule, which you can't use deadly force to stop a fleeing suspect who is merely fleeing, expanded that to include the entire range of use of force, deadly or nondeadly. And with regard to the factors that are to be considered in determining whether the use of force is reasonable under Graham, the balance with respect to a fleeing suspect who is subjected to deadly force was already drawn by Garner. Garner created a bright light rule. Graham extended that to an ad hoc balancing test with all use of force applications. But with respect to deadly force and a fleeing suspect, Garner still provides a bright line rule.
05-1631 +++$+++ 38712 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you're saying I cannot do the following under the law, which would seem to be contrary to common sense, to say there is a big difference between a policeman shooting a person who is running away and threatens no harm to others, and a policeman using a gun -- using a car on a highway to try to get a person to stop who is threatening others. I have to treat those exactly as if they were the same thing.
05-1631 +++$+++ 38713 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. And Garner, this Court's decision in Garner and this Court's decision in Brower, which was written by Justice Scalia, basically to quote Brower in both cases. In the Brower versus County of Inyo --
05-1631 +++$+++ 38714 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The Eleventh Circuit gave the exact opposite answer in the Adams case, which if you're looking at what the -- was clearly established law from the point of view of the officer that provides him guidance that the Garner case does not dictate a result in the use of deadly force in the police chase case involving an automobile.
05-1631 +++$+++ 38715 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the holding of the Adams versus St. Lucie County case was that in 1985, an incident which occurred six weeks after the Garner decision and four years before the Brower decision, there is no way the officers could have known at that time that their act of ramming a police car to prevent an escape of another fleeing vehicle would have been considered deadly force in violation of the Fourth Amendment. As the dissent pointed out in the, in the Adams case, though, certainly as of the Court's decision in 1993, this was now clearly established. You had Brower saying that it's a seizure, and then you had this Court saying that now the law was clearly established where it wasn't before --
05-1631 +++$+++ 38716 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So when Officer Scott was trying to figure out what the law was, he should have relied on the dissent in the case?
05-1631 +++$+++ 38717 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, another case came about later which held that as early as 1998 in another case involving the same department, that there was clearly established law.
05-1631 +++$+++ 38718 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was there any case at the time of the action in this case, any decision that said ramming, ramming a car to end a chase violates the Fourth Amendment?
05-1631 +++$+++ 38719 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Brower versus County of Inyo says --
05-1631 +++$+++ 38720 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Brower was a roadblock case.
05-1631 +++$+++ 38721 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was a roadblock which produced a collision, a physical impact between vehicles. And that was the -- that was the distinction which Justice Scalia latched onto in that case, and said that the mere fact that the person was fleeing by car in Brower was no different than the burglar fleeing by foot in Garner. Either one of them --
05-1631 +++$+++ 38722 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the issue in the case was quite simply whether there had been a seizure. Isn't that the issue?
05-1631 +++$+++ 38723 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was the first holding. The second holding was that the Plaintiff had sufficiently claimed a cause of action on the seizure. And then it went back to the lower court to be considered under the Garner analysis. And what I liked about your decision -- excuse me, Mr. Chief Justice.
05-1631 +++$+++ 38724 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Go ahead. Finish your --
05-1631 +++$+++ 38725 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What I liked about your decision in that case, Justice Scalia, was that you said that the officer's culpability for using excessive force is not diminished by the fact that perpetrator chose to continue running, whether it was the fleeing burglar in Garner or the fleeing driver in Brower. Excuse me, Mr. Chief Justice.
05-1631 +++$+++ 38726 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If I could just get back to an earlier point. You think what the officer should have done in this case was to let Mr. Harris go.
05-1631 +++$+++ 38727 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was one option. He could have continued the pursuit and simply decided not to mow him off the road at 90 miles an hour, or he could have stopped a pursuit and let him go which often happens in many pursuits.
05-1631 +++$+++ 38728 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even though he doesn't know at that point that he will ever be able to arrest him later. He doesn't know if it's a stolen car or not.
05-1631 +++$+++ 38729 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
05-1631 +++$+++ 38730 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And he doesn't know why he is being pursued, whether it's for mass murder or terrorism or anything else.
05-1631 +++$+++ 38731 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's correct. But in the majority of cases -- and this is the only testimony in this record, Your Honors. Our experts testified on a study -- based on a study which was commissioned for him by the Department of Justice, a study which has been cited by some of the amicus briefs on both sides in this case, Dr. Albert testified that 70 percent of the time, when police back off pursuit, the perpetrator stops running and they resume safe driving. And when the car is stolen, most of the time --
05-1631 +++$+++ 38732 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Once they have gotten away, I assume.
05-1631 +++$+++ 38733 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, sometimes you have to let them get away. In Garner, it says, even if the guy has just broken into somebody's house in the middle of the night and committed a felony, if the choice is letting them go or using deadly force when the factors authorizing deadly force are not present, you have to let him go.
05-1631 +++$+++ 38734 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Not if he is shooting his way out of the house and endangering other people.
05-1631 +++$+++ 38735 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
05-1631 +++$+++ 38736 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, that's a factor here, of course. If he has taken the jewelry and he's gone off into the night, if shooting at him might endanger somebody else, or even kill him, you have to let him go. I'm talking about a burglar who is, you know, who is shooting as he leaves.
05-1631 +++$+++ 38737 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You can shoot him. I'd be there shooting him, too.
05-1631 +++$+++ 38738 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course you can shoot him.
05-1631 +++$+++ 38739 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me take that distinction and apply it to the vehicle, Justice Scalia. What we have to have to authorize deadly force in this context is something more than just unsafe flight. You've got to have someone who is behaving violently, who is menacing people, trying to ram people.
05-1631 +++$+++ 38740 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can you tell me as of the time he exited the parking lot, by that point, had he committed any felonies?
05-1631 +++$+++ 38741 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. All he had done was taken evasive action to avoid an officer who --
05-1631 +++$+++ 38742 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ 90 miles an hour would not be a felony, not a reckless driving?
05-1631 +++$+++ 38743 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Are you talking about the traffic pursuit?
05-1631 +++$+++ 38744 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-1631 +++$+++ 38745 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, none of those are felonies under Georgia law.
05-1631 +++$+++ 38746 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ At no point did he commit a felony?
05-1631 +++$+++ 38747 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. It's not even a felony in Georgia.
05-1631 +++$+++ 38748 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But he certainly committed a lot of --
05-1631 +++$+++ 38749 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If he had intended to hit the police officer, was it --
05-1631 +++$+++ 38750 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If he had intended to hit the police officer, if that was shown by the evidence, so they could have charged with aggravated assault. They didn't do that. They left traffic citations in his hospital room. They never arrested him. They never prosecuted him.
05-1631 +++$+++ 38751 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The key point is that he is endangering the lives and safety of others. Anyone who has watched that tape has got to come to that conclusion, looking at the road and the way that this car was swerving, and the cars coming in the opposite direction. This was a situation fraught with danger.
05-1631 +++$+++ 38752 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Ginsburg, I hope I don't have you on my jury if that's -- but what the trial court found was that construing the facts in a light most favorable to the Plaintiff as a nonmoving party, that reasonable jurors can find that this was simply a person who was driving fast. This was not a person who was driving assaultively. He wasn't driving violently. He wasn't a threat to anyone that would authorize the use of deadly force against him.
05-1631 +++$+++ 38753 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that a factual finding of the, of the trial court here?
05-1631 +++$+++ 38754 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is a factual finding.
05-1631 +++$+++ 38755 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are we bound by that fact?
05-1631 +++$+++ 38756 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We are bound by that. This is an interlocutory appeal, this an interlocutory appeal under Mitchell v. Forsythe, and the Court is bound by its own ruling to accept the facts as found by the court below, and decide the narrow issue of law here which is, one, is there a constitutional violation on these facts. And two, was the law clearly established.
05-1631 +++$+++ 38757 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even if having watched the tape, there is no way that, that factual finding can be accurate?
05-1631 +++$+++ 38758 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you want to repeal Johnson v. Jones and Mitchell v. Forsythe, then yes. This is the Supreme Court. You can make that determination. But based upon the prior rulings of this Court, this Court is bound to accept the findings of fact of the courts below, and then to determine solely the legal issue on an interlocutory basis. The bottom line issue here, Your Honors, is whether the fact that someone is driving in violation of traffic laws in and of itself can be justification for the use of deadly force.
05-1631 +++$+++ 38759 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't see how -- I mean, you know, given our prior discussion here, I don't see how that's the issue. Because you say we have to assume that the Defendant here didn't know that, in fact, all that was at issue was a violation of the traffic law.
05-1631 +++$+++ 38760 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm not talking about the underlying violation here. I'm talking about the conduct observed by the officer who made the decision to use deadly force.
05-1631 +++$+++ 38761 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That conduct -- it could be conduct -- you could say exactly your same question, just as the Chief just said. I mean, I don't know how to get around this. You could say the question was, does a person who reasonably thinks he might be being pursued for a murder --
05-1631 +++$+++ 38762 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This is the issue. This is the issue. If what this person is doing is driving, say driving unsafely, but they are not driving violently, they are not driving aggressively, they are not menacing anyone on the road. They are simply driving fast trying to get away, that in and of itself, is that going to be justification for the use of deadly force or is something more going to be required?
05-1631 +++$+++ 38763 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When someone is fleeing and creating a grave danger, let's just assume that that's the case, creating a very danger for other drivers on the road, when in your view is it reasonable for the police to use deadly force to stop that, as opposed to breaking off the chase? What, what is the test.
05-1631 +++$+++ 38764 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, under Garner the test is they have to be threatening violence or inflicting violence against someone. There have to be no other alternatives other than deadly force available to effect the apprehension. And assuming there is justification for deadly force, then there is a duty to give a warning where feasible before using deadly force. And the court below felt none of those three factors --
05-1631 +++$+++ 38765 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How could you possibly give a warning in this situation?
05-1631 +++$+++ 38766 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's academic in this case, because the first two factors were not met. I mean, it's our position that you don't worry about giving a warning unless you have the right to use deadly force, and if you don't get to that point then it's -- it's a moot question.
05-1631 +++$+++ 38767 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why wasn't there warning? There were lights, there were sirens. Surely the defendant knew that the police were trying to stop him.
05-1631 +++$+++ 38768 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was certainly warning that he needed -- that he was expected to pull over. There was no warning of any intent to use deadly force.
05-1631 +++$+++ 38769 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What am I -- you said factually. What am I supposed to assume? You said in light of -- I mean, I looked at the tape and that tape shows he is weaving on both sides of the lane, swerving around automobiles that are coming in the opposite direction with their lights on, goes through a red light where there are several cars that are right there, weaves around them, and there are cars coming the other way, weaves back, goes down the road. Now, what in fact -- am I supposed to pretend I haven't seen that? What am I supposed to pretend to here?
05-1631 +++$+++ 38770 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I didn't see that.
05-1631 +++$+++ 38771 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You didn't see that?
05-1631 +++$+++ 38772 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
05-1631 +++$+++ 38773 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You didn't -- I thought that -- you didn't see that?
05-1631 +++$+++ 38774 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the point is most people use the word weaving to describe the motion of Mr. Harris's car is when they are going through the, the shopping center --
05-1631 +++$+++ 38775 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. I -- what I saw is he is driving down one lane, what I mean by weaving, and this lane goes with me in traffic. And there is some cars in front of him, so he goes in the other lane where the cars are now coming right directly at him. And then before they hit him, he goes back to the first lane and he does this while going through a red light, it seemed to me. Am I -- did I mis-see that? I'll go look at it again if you --
05-1631 +++$+++ 38776 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- feel free to look at it again.
05-1631 +++$+++ 38777 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah.
05-1631 +++$+++ 38778 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But those are not the facts that were found by the court below in this --
05-1631 +++$+++ 38779 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well that's, that's what I wonder. If the court says that isn't what happened, and I see with my eyes that is what happened, what am I supposed to do?
05-1631 +++$+++ 38780 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think you apply the law, Your Honor.
05-1631 +++$+++ 38781 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The district -- (Laughter.)
05-1631 +++$+++ 38782 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Under, under -- under your rule, what you're concerned with is the bumping, the use of the force. Under your rule, if the police continue the chase without using the, without trying to ram him, and then there is an accident and innocent people are killed, or injured, I assume that under the tort laws of most states, the police could be liable.
05-1631 +++$+++ 38783 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well in theory perhaps they could be if the officer was a joint proximate cause of the accident, but in most states --
05-1631 +++$+++ 38784 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, aren't they the proximate cause if they continue the chase without trying to terminate it?
05-1631 +++$+++ 38785 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. If the officer terminates the chase then he is never going to be liable because number one he is acting prudently; he is going based upon Department of Justice studies showing 70 percent --
05-1631 +++$+++ 38786 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. No. Well, I meant terminate the chase by -- by -- by forcing him off the road.
05-1631 +++$+++ 38787 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if he terminates the chase using deadly force, that that creates a whole host of other problems.
05-1631 +++$+++ 38788 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But isn't there -- but isn't that one way to assure that the police are not liable, both from a moral standpoint and a legal standpoint, for causing the injury of other people?
05-1631 +++$+++ 38789 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Now from a constitutional standpoint the Fourth Amendment doesn't protect other people. It protects those who have been seized. And that's, that's the framework we are dealing with here today.
05-1631 +++$+++ 38790 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you mean it's irrelevant to our analysis to consider that he might injure other people?
05-1631 +++$+++ 38791 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The potential for danger to others is certainly part of the justification for deadly force, just as, if deadly force cannot be used endangering other people, then that certainly goes into the matrix, too.
05-1631 +++$+++ 38792 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Jones, could I --
05-1631 +++$+++ 38793 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yeah.
05-1631 +++$+++ 38794 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could I ask whether the portion of the opinion that you say establishes that he was not endangering anybody is this portion? The court is mindful that traffic laws are designed to -- safely -- and Harris acted in an unsafe manner. However, the record reflects" -- - is this the portion?
05-1631 +++$+++ 38795 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-1631 +++$+++ 38796 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "that he maintained control over his vehicle." Well, that doesn't prove he's not endangering anybody. "Used his turn signals" -- wonderful. (Laughter.)
05-1631 +++$+++ 38797 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ "And did not endanger any particular motorist on the road." I think that's true. In that scary chase he, he didn't come close to hitting any particular car, but I don't think that's, that's a finding that he was not endangering anybody. "Any particular motorist," but he was endangering the public at large.
05-1631 +++$+++ 38798 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, this is my point is that if, if the drive -- if the hazard caused by driving in and of itself is the only threat here, does that rise to a level of imminency and immediacy that justifies the use of deadly force? If it does, then any officer who perceives that someone is driving unsafely and that they may cause an accident to someone who may or may not be down the road if not stopped, would be justified in using deadly force, to literally take out anyone who is speeding.
05-1631 +++$+++ 38799 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It depends on how fast -- if depends on how fast the car is going, whether it's a two-lane road or four-lane divided highway. All those factors come into, into account. And it doesn't seem to me that we have to adopt a rule that will, that will discourage police officers. There's, there's enough disincentive to engage in this kind of activity in the fact that the police officer may hurt himself. It's pretty risky to conduct this kind of a maneuver, don't you think? I wouldn't have done it if I was Scott.
05-1631 +++$+++ 38800 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well that's --
05-1631 +++$+++ 38801 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I would have let the guy go.
05-1631 +++$+++ 38802 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Now what he, if he --
05-1631 +++$+++ 38803 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Driving 90 miles an hour and comes up, approaches that car, that car swerved. Scott could have been killed, couldn't he?
05-1631 +++$+++ 38804 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely. Or because he's also --
05-1631 +++$+++ 38805 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So I don't think we need a whole lot of disincentive to stop police officers in engaging in frolicsome conduct.
05-1631 +++$+++ 38806 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, not only that, Justice Scalia. The officer had no control over what was going to happen once he used deadly force, like the officer who fired into the cab of a flying vehicle in Barn v Cox, once you disable the driver the car keeps going. And in this case, when you -- when you hit the vehicle and knock a vehicle that has been in control and make it out of control, then it's now an unguided missile that could just as easily cross the center line and hit an innocent person.
05-1631 +++$+++ 38807 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Let me just ask this question. In trying to assess the likelihood of harm to innocent people who would be hurt by this by this guy driving so fast, is that, do we measure it by assuming that the chase will continue? Or do we measure it by assuming that the chase would be discontinued?
05-1631 +++$+++ 38808 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The officer --
05-1631 +++$+++ 38809 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Just as we did in Garner?
05-1631 +++$+++ 38810 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The officer has both options. I mean Garner simply commands that he not use deadly force if it's a choice between letting him go and using deadly force. Now in the Sacramento v Lewis case, it does say that involves a different, a different type of claim and a different standard. But in the Sacramento case it does say that an officer in a pursuit has a duty to always be weighing the risk of the continued pursuit against the risk to the public. So there is an independent duty there to act reasonably.
05-1631 +++$+++ 38811 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If it were -- clear that a jury could find that there would be no unreasonable risk to innocent motorists if they discontinued the chase -- assume that's a possible finding. If that were true, would there be a duty to discontinue the chase?
05-1631 +++$+++ 38812 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not under the Fourth Amendment. Now, the -- the only expert testimony in this record on that subject says there is a 7 percent chance --
05-1631 +++$+++ 38813 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You're saying there is a duty not to use deadly force.
05-1631 +++$+++ 38814 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's what Garner says, if you don't use deadly force. And that's what our claim is.
05-1631 +++$+++ 38815 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And aren't you concerned that that creates an incentive in every case for anyone who, that sees the blue lights behind them to know that all they have to do is keep fleeing and the police are going to have to give up eventually?
05-1631 +++$+++ 38816 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, let me respond by reading a portion of Garner that deals with that point, Mr. Chief Justice. These, these same important policy reasons were raised in Garner, that we don't want to encourage disobedience of issues. We want to discourage people from fleeing. And this is what the Garner Court said --
05-1631 +++$+++ 38817 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, Garner -- Garner was the case involving shooting the guy in the back, right?
05-1631 +++$+++ 38818 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. He might easily break into someone else's house and perhaps end up killing them. This was a vigorous dissent in Garner. But this is what the majority said: "Without in any way disparaging the importance of these goals we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects." And if unsafe driving --
05-1631 +++$+++ 38819 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But your, your answer to Justice Stevens as I understand it was the police not have the duty to discontinue the chase? The obverse of that is that the police may prolong the chase, i.e., prolong the injury to the public. I'm surprised at your answer.
05-1631 +++$+++ 38820 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think there is an independent duty, it doesn't rise under the Fourth Amendment, but there is an independent duty to do that. But my concern is that under Garner, given a choice between --
05-1631 +++$+++ 38821 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It is certainly the case that if there is going to be a, a risk of deadly harm to innocent third parties, there would be a duty to discontinue the chase rather kill him. But you don't seem to buy that.
05-1631 +++$+++ 38822 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, experience shows most of the time when you discontinue a chase, the person who is running discontinues driving unsafely. That is the -- that is experience. This officer's own policy says that --
05-1631 +++$+++ 38823 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did this study show what future fleeing speeders would do? I mean, I will accept that for, for the sake of argument that -- in fact, it's probably true. I would have guessed that, if the police stopped chasing, you don't go 90 miles an hour anymore. But did this study show what the effect of a rule that says stop chasing when he hits 85, what the effect of that rule would be on, on fleeing speeders or fleeing felons, or fleeing anybody?
05-1631 +++$+++ 38824 +++$+++ TRUE +++$+++ MR. JONES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the rule simply says you don't kill him just because he is driving unsafely. And if, it simply says that if the choice is between killing him and letting him go, you have to let him go if the Garner factors aren't present. And we find nothing in the law and no reason to create a new exception in the law that says that Garner doesn't apply if you're fleeing by vehicle. Thank you. We ask that the Court of Appeals be affirmed.
05-1631 +++$+++ 38825 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Jones. Mr. Savrin, you have four minutes remaining.
05-1631 +++$+++ 38827 +++$+++ FALSE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. Let me refocus for a moment that in order for the officer to be denied qualified immunity in this context a jury would have to be able to find two things. One, that no -- that there was no probable cause, and second, that that was clearly established. And I think that the discussion this morning if nothing else shows that it's not clearly established. As far as the Fourth Amendment is concerned, I think the measure needs to be exactly as this Court stated in Graham versus Connor, which is looking at the facts from the standpoint of the officer on the scene, because after all, he has to make split-second decisions. He does not have the benefit of taking depositions of Mr. Harris --
05-1631 +++$+++ 38828 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What am I supposed to do? I mean, I'll look again at the tape. I certainly will do that. But suppose I look at the tape and I end up with Chico Marx's old question with respect to the Court of Appeals: Who do you believe, me or your own eyes?
05-1631 +++$+++ 38829 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think the answer to that question was provided in this decision in Ornelas versus United States, a decision by this Court in 1996 that came up in the context of a criminal, a direct criminal appeal involving the question of probable cause. And this Court set forth very clearly that the historical facts are given deference. The question of, a legal question about whether those facts reasonably give rise to probable cause is an independent de novo review.
05-1631 +++$+++ 38830 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Whether he is endangering anybody is a historical fact, no? So what do you do about that finding?
05-1631 +++$+++ 38831 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe that is historical fact.
05-1631 +++$+++ 38832 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It is.
05-1631 +++$+++ 38833 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The historical facts here are whether Mr. Harris was driving excessively, whether he was driving across the line, whether he was driving at high rates of speed, whether there was anybody in his path, whether he had collided with anyone. I think the question about whether or not those facts give rise to probable cause to believe that Harris was a threat of serious physical harm is a legal issue, and I think the Court of Appeals recognized that in this case when they applied a different analysis or came out with a different result to those same undisputed facts.
05-1631 +++$+++ 38834 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is the, the court saying -- and this is on page 39 A of the petition appendix -- when Harris was driving away from officers and when there, when there were no other motorists or pedestrians nearby, thus casting doubt on defendant's assertion that at the time of the ramming, Harris posed an immediate threat of harm to others. This is a finding that there were no other motorists or pedestrians nearby when the ramming occurred.
05-1631 +++$+++ 38835 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that is a fact that we accept as true in the immediate vicinity. The tape shows that there was a vehicle just 12 seconds before, and I think that a reasonable officer at the time would believe that that wasn't going to be the last vehicle on that road.
05-1631 +++$+++ 38836 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I would hope he would wait until there were no pedestrians or vehicles coming before he, before he did the ramming.
05-1631 +++$+++ 38837 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-1631 +++$+++ 38838 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I assume he waited precisely for that kind of a gap in the traffic?
05-1631 +++$+++ 38839 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. Exactly. He had limited options and I believe it was a no-win scenario. And he took the best course that he reasonably believed he could at the time. And --
05-1631 +++$+++ 38840 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you agree with Mr. Jones' statement that none of Mr. Harris' conduct rose to the level of a felony?
05-1631 +++$+++ 38841 +++$+++ TRUE +++$+++ MR. SAVRIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would not, Your Honor. In our brief we did list a number of felonies that Mr. Harris, that we believe he committed. But I would go back to Garner, and Garner says that an armed suspect would have been a different case. And Garner also says that some misdemeanors such as drunk driving are more dangerous that some felonies such as white collar crime. So I think the question should not be whether it's a technical issue of crossing the line from misdemeanor to felony, but the harm that is being caused by the continued driving that's exactly what occurred in this case. And if I could respond to Justice Breyer's question about what to do in terms of responding to Mr. Marx's question, I think the Ornelas case says that you would review it for clear error. And in this case you would not owe deference of a finding of fact by the lower court.
05-1631 +++$+++ 38842 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Savrin. The case is submitted.
05-18 +++$+++ 38847 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first in Arlington Central School District Board of Education v. Murphy. Mr. Kuntz.
05-18 +++$+++ 38849 +++$+++ FALSE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The statute awarding attorneys' fees as part of the costs to the prevailing parents provides a clear rule, imposes a certain obligation. It should not be expanded to include fees for expert witnesses. This is a case of statutory construction. Under longstanding rules, statutes are construed by first looking at the words of the statute. Is the meaning plain? If so, the inquiry stops there. This statute is unambiguous. Expert fees are not a part of attorneys' fees. Expert fees are not costs. The statute contains no reference to expert fees. They are not shifted to the school district when the parents prevail. It's our belief that the lack of compensation for experts is an intentional exclusion and omission from the statute. Congress knows how to add expert fees in a cost-shifting statute, and that omission is telling here. In that context, I think it's important to draw the Court's attention to the origin of the statute. It was in response to this Court's decision in Smith against Robinson. At the time that Smith against Robinson was heard, the EHA was often grafted onto other causes of action as a pleading device to -- in an attempt to ensure that attorneys' fees flowed to the prevailing party at the conclusion of the case. So cases were brought not only under the -- the Education for All Handicapped Children Act, but also under 504 of the Rehabilitation Act of 1973 and under 1983 as well of -- on the theory that these were equal protection claims brought under the Fourteenth Amendment. In Smith against Robinson, this Court made it clear that the avenue that had to be followed by the parents was exclusively that of -- of the remedy provided under the Education for All Handicapped Children Act. In response to that decision of the Court, as my opponent points out in his brief -- I think it was 19 days later -- bills were introduced into Congress to remedy what Congress at that point saw was a -- a lack of coverage for fees for attorneys for the prevailing parties in cases under the -- under the act. So it's no -- no great surprise that what Congress did in that instance was to take the language that appears in section 1988 and, in effect, lift it and put it into the -- into the act, into what we now call the IDEA. And it's very clear that in doing so, it limited the right of recovery to attorneys' fees, and that right does not include the expert fees advocated by the Respondents here this morning.
05-18 +++$+++ 38850 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think the right includes any costs other than statutory costs, any expenses?
05-18 +++$+++ 38851 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it does not, Your Honor.
05-18 +++$+++ 38852 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How do you explain the reference to expenses on page 4 of the red brief which quotes from the -- a section of the statute authorizing a report to be made, a report authorized under? They shall include data about the specific amount of attorneys' fees, costs, and expenses. Why do you suppose they put the word expenses in?
05-18 +++$+++ 38853 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it said attorneys' fees, costs, and expenses.
05-18 +++$+++ 38854 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right.
05-18 +++$+++ 38855 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And it's a direction to --
05-18 +++$+++ 38856 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So the expenses must be something other than attorneys' fees or costs.
05-18 +++$+++ 38857 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they could be expenses of the attorney. But if they were to be -- be set aside separately, that's no indication that -- that Congress intended that expenses of other individuals be shifted to the cost -- shifted, rather, to the school district. It's a direction to the GAO to acquire data --
05-18 +++$+++ 38858 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right.
05-18 +++$+++ 38859 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- for future reference by -- by Congress.
05-18 +++$+++ 38860 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, what about -- may I just take the question one step further? I think it's in a subsequent clause in that same section requiring the GAO report that it refers to the -- the -- I forget whether -- the expenses of consultants. Why was the word consultant in there? Because as -- as I understand it, a consultant would not be covered by the costs -- the general costs statute.
05-18 +++$+++ 38861 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I believe that's correct. That's in -- in subdivision (B).
05-18 +++$+++ 38862 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it? Is it? I thought the -- there was a reference to hours of consultants, but not expenses.
05-18 +++$+++ 38863 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are two subdivisions: subdivision (A) and subdivision (B). Subdivision (A) says attorneys' fees, costs, and expenses -- expenses, and in subdivision (B), it refers to consultants. But there isn't any --
05-18 +++$+++ 38864 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I would have thought that your answer would be that the Congress was interested in finding out the cost of this act, and it's very clear that school districts hire consultants to assist them in -- in these cases, and it wanted to know the amount they were paying to the consultants. And that's also why it used the word personnel, which -- which is a word usually reserved for a government agency.
05-18 +++$+++ 38865 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I believe Your Honor is correct in that it -- it's a direction by the GAO to acquire data. And I believe we argued that point in our brief, just as Your Honor has expressed it. We think that that direction to the GAO, however, does not relate back particularly and -- and certainly doesn't inform this Court or inform the statute that expert's fees are to be included and shifted over to the -- to the school district.
05-18 +++$+++ 38866 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But does it make it possible to read -- I mean, I agree with you it doesn't say to do that, but I guess you could read it to do that, couldn't you? I mean, you said the word cost wasn't ambiguous.
05-18 +++$+++ 38867 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under this statute.
05-18 +++$+++ 38868 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Maybe you might be right, maybe absolutely, but might you also be wrong? How is it not ambiguous? It might cover -- it might cover the fees of consultants. It might be that the argument you made is right, but it also mightn't.
05-18 +++$+++ 38869 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think this Court has looked at that issue in -- in two separate cases, and one of those cases is Crawford Fitting and the other is --
05-18 +++$+++ 38870 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which involved this statute?
05-18 +++$+++ 38871 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it didn't involve this --
05-18 +++$+++ 38872 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. Well, I mean, we have a statute and they're using the word costs in the statute, and whatever they used in some other statute they might have meant something different in this statute. And my question is simply how do we know they didn't by just reading the word five times, particularly since, in fact, if you look at another part of the statute, they do seem to use the word cost to include number of hours spent by personnel, including consultants, and the expenses incurred. I mean, can you say -- is there a dictionary that says the word costs couldn't include that?
05-18 +++$+++ 38873 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it -- it could, but I --
05-18 +++$+++ 38874 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, once you say it could, then possibly it's reasonable to ask what the Congress Members were actually thinking, and as soon as we look at what they were actually thinking, that's perfectly clear. Isn't it? Because both the conference report and the Senate report say absolutely clearly that they intended this kind of expense to be used, which is why the GAO went out and did all the studies to include it.
05-18 +++$+++ 38875 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But we come back to the historical derivation of how this statute came into -- into being, and it did come in in response to Smith against Robinson.
05-18 +++$+++ 38876 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought the GAO study included not just the -- the hours worked and the -- the costs, however you choose to define it, on the part of the parent challenging the school board action, but it also included those hours and those costs expended by the school.
05-18 +++$+++ 38877 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, it does.
05-18 +++$+++ 38878 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In which case it could not possibly have been directed to what items are compensable.
05-18 +++$+++ 38879 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We think that's a separate section.
05-18 +++$+++ 38880 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ On its face, it covers at least half of the items that are not compensable.
05-18 +++$+++ 38881 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, Your Honor.
05-18 +++$+++ 38882 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's true, but --
05-18 +++$+++ 38883 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't it true that the provision I referred to refers to the specific amount of attorneys' fees, costs, and expenses awarded to the prevailing party? So it's definitely referring to expenses incurred by the -- by the plaintiff. Isn't that true?
05-18 +++$+++ 38884 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I -- that's correct.
05-18 +++$+++ 38885 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
05-18 +++$+++ 38886 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I think there are expenses that -- that the attorney bears in -- in the routine of a -- of a -- of handling the client. Those are expenses --
05-18 +++$+++ 38887 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you're saying the word expenses should refer only to expenses incurred by counsel, which of course would be normally reimbursable.
05-18 +++$+++ 38888 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-18 +++$+++ 38889 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but I'm not -- I'm not sure that you don't have a further answer to Justice Stevens because there's (3)(A) and (3)(B). (3)(A) talks about costs and expenses awarded to the prevailing party. (3)(B) says, for the same sample the number of hours spent.
05-18 +++$+++ 38890 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They're talking about -- the same sample refers to a -- a designated number of States, a representative number of States. So the sample refers to the States surveyed, not to those --
05-18 +++$+++ 38891 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's certainly possible. I just wonder why don't we look and see what they intended, since they told us. In the conference report, they say the conferees intend the phrase, attorneys' fees as part of costs, to include reasonable expenses and fees of expert witnesses and the reasonable cost of any test or evaluation which is found to be necessary for the preparation of a parent or guardian's case in the action or proceeding. So why are we metaphysically trying to guess what Congress intended when they told us what they intended?
05-18 +++$+++ 38892 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I don't think it's so much a question of metaphysics or philosophy -- maybe perhaps of philosophy.
05-18 +++$+++ 38893 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ My question is why don't we just look and see what they intended since they wrote it down on a piece of paper and all we have to do is read it?
05-18 +++$+++ 38894 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did Congress say that, Mr. Kuntz?
05-18 +++$+++ 38895 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Congress didn't say that.
05-18 +++$+++ 38896 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought it did. I thought that the conferees in Congress wrote in the conference report precisely what they intended.
05-18 +++$+++ 38897 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, if I might respond to that.
05-18 +++$+++ 38898 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, I'd like you to respond to it. (Laughter.)
05-18 +++$+++ 38899 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's -- it's a longstanding rule of statutory construction that Congress' intent is best found in the language that Congress actually puts into the statute. And as we pointed out in the brief, there were previous versions of this act which included experts' fees which did not make its way to the final version approved by both the -- the Senate and the House.
05-18 +++$+++ 38900 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There's no doubt that the best evidence is the text of the statute, but at least the people who drafted this, even if they were not the conferees themselves but were just staff members, they apparently thought the language was subject to that reading.
05-18 +++$+++ 38901 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor --
05-18 +++$+++ 38902 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which would mean it would be ambiguous, wouldn't it?
05-18 +++$+++ 38903 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The rule that we look first to the -- yes, Your Honor. Yes.
05-18 +++$+++ 38904 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The rule that you refer to that you cannot look at legislative history -- of course, we always start with the plain language. That's clear. But the rule that you cannot look at legislative history didn't really get any emphasis till after 1987, and this statute was enacted in 1986.
05-18 +++$+++ 38905 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But that -- in -- in the retrospective view that the Court looked at in -- in the -- the Casey decision, it went back and it traced the origin of a number of -- of statutes and looked essentially to similar language, and it found that experts' fees were not a part of attorneys' fees, and it found that experts' fees were not a part of -- of costs.
05-18 +++$+++ 38906 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it also found that there were dozens of statutes, I think -- didn't Justice Scalia list in his opinion for -- it went on for a couple of pages, including footnotes? I think it was over 30 that did mention experts. It mentioned attorneys' fees and expert fees.
05-18 +++$+++ 38907 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, and to us that proves that Congress knows how to distinguish between experts' fees and attorneys' fees when it wants to.
05-18 +++$+++ 38908 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was this language, by the way -- I'm not clear. It always cited to the House -- the House conferees. Was -- was this language in the -- in the Senate conference report?
05-18 +++$+++ 38909 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, I don't believe it was.
05-18 +++$+++ 38910 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So we don't really know --
05-18 +++$+++ 38911 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It emanates -- it emanates solely from the House conference report.
05-18 +++$+++ 38912 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's only half of the Congress, isn't it? Even if --
05-18 +++$+++ 38913 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought it was a joint explanatory statement.
05-18 +++$+++ 38914 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- even if everybody in the House agreed with that, which we don't really know. What about the President? When he signed it, did -- did he indicate any interpretation?
05-18 +++$+++ 38915 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ His -- Your Honor, the -- the President's hesitancy was about the retroactive effect of the statute, and he noted that in his signing memorandum, but he didn't note any other differences.
05-18 +++$+++ 38916 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So we have a committee of one house that said -- that said that, that thought it meant that or would have liked it to mean that.
05-18 +++$+++ 38917 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. And it isn't all that unusual that the congressional history of a particular statute might point one way and the actual plain meaning point another way.
05-18 +++$+++ 38918 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How do you explain the title, Joint Explanatory Statement of the Committee of the Conference? Doesn't that speak for both the House and the Senate?
05-18 +++$+++ 38919 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- yes, Your Honor, it does.
05-18 +++$+++ 38920 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So it's not correct it's just for one house. It's -- what I have is the Joint Explanatory Committee, and it says the managers, on the part of the House and the Senate.
05-18 +++$+++ 38921 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it does say that, Your Honor.
05-18 +++$+++ 38922 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. And is there some rule -- I don't know what this rule is you can't refer to legislative history. Does it say that in the Constitution of the United States?
05-18 +++$+++ 38923 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, it doesn't.
05-18 +++$+++ 38924 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. And so --
05-18 +++$+++ 38925 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Counsel, sometimes these joint statements are actually voted on by the Congress as a whole. Was this one -- was this one voted on?
05-18 +++$+++ 38926 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There was no evidence of that, Your Honor, in our review.
05-18 +++$+++ 38927 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which ones are voted on? I've not heard of that. I mean, they might be, but it used to be that the -- they circulate the report to all the Members and the Members read it, and if a Member disagrees with it, they note their dissent. Maybe it's changed. But I guess --
05-18 +++$+++ 38928 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can you cite an example of a conference report that was voted on by the Congress?
05-18 +++$+++ 38929 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I cannot, Your Honor, and that's why I -- I responded as I did, which is that I know of no evidence.
05-18 +++$+++ 38930 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think we have said that conference reports are more valuable than the reports of a single house. I think we have said that.
05-18 +++$+++ 38931 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They are voted on when the -- when the conferees make changes, which they sometimes do. Then -- then, of course, they have to be voted on. So it's frequent. It's frequent that they're voted on, but this one apparently -- there were no changes made and it wasn't voted on.
05-18 +++$+++ 38932 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. If I -- if there are no further questions, I'd like --
05-18 +++$+++ 38933 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Justice Breyer knows that. He -- he's worked there.
05-18 +++$+++ 38934 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, I'm sorry.
05-18 +++$+++ 38935 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I didn't have an opportunity to work for a Senator who, in fact, to my experience asked me to report on a vote on such a thing. I just wasn't aware of it.
05-18 +++$+++ 38936 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel.
05-18 +++$+++ 38937 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. I'd like to reserve my time for rebuttal.
05-18 +++$+++ 38938 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Certainly.
05-18 +++$+++ 38939 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
05-18 +++$+++ 38940 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Salmons.
05-18 +++$+++ 38942 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You have examples of conference reports being voted on, don't you?
05-18 +++$+++ 38943 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do not, Your Honor. I -- I do not dispute the representations that have been made about that practice. But let me begin by saying, thank you, Mr. Chief Justice, and may it please the Court: This Court should give the attorneys' fee provision of IDEA the same construction it gave the nearly identical language of section 1988 in Casey and hold that an award of attorneys' fees as part of the cost does not include expert fees. Respondent's sole argument is that expert fees are included in the statutory term costs, but as this Court made clear in both Casey and Crawford Fitting, the term costs in a fee-shifting statute has a well-settled meaning and is a reference and is limited to those -- that modest category of costs that may be awarded under 28 U.S.C. 1920 and 1821. Now --
05-18 +++$+++ 38944 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What -- what do you say about expenses? Isn't -- isn't it a fairly common practice for a -- a trial lawyer to -- to hire his experts and pay them and then bill the client for -- for whatever he's paid for the experts? I mean, if that is the -- this has been a long time since I've practiced law. So maybe that isn't the way it's done anymore. But it -- it certainly has been done that way, and -- and if that is still the practice, wouldn't it make sense for Congress to have assumed that expenses would include those kinds of expenses?
05-18 +++$+++ 38945 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. No, I don't think so, Your Honor. Now, first of all, just to be clear, the -- the fee provision that's at issue here is identical to the fee provision that was at issue in Casey, and it makes no reference to expenses. It says attorneys' fees as part of the costs. Now, in this separate section instructing the GAO to do a report --
05-18 +++$+++ 38946 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's the GAO reference. You're right.
05-18 +++$+++ 38947 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- it says to look at the -- the awards in cases, the awards of attorneys' fees, costs, and expenses. We don't think the term expenses in -- in that provision can fairly be read to somehow dramatically expand the meaning of the phrase, attorneys' fees as part of the costs. We think it's much more naturally to read that as just a reference, as this Court noted in Casey, to the common practice of including out-of-pocket expenses of attorneys for things like copying costs and -- and necessary travel expenses and things like that as -- as also being compensable. And so we don't think that that -- that term expenses does anything dramatically to the meaning of the statutory provision at issue here. And as far as subsection (B) of that provision related to the GAO, we think it's clear that it's no longer referring to the actual awards in cases, and is instructing the GAO to do a broader study about the time that's spent by attorneys and consultants and others on both sides in these cases because Congress was very concerned about the amount of litigation and the expense of that litigation and the diversion of funds away from the core educational services of the schools. As this Court noted in Schaffer, that's one of the primary concerns Congress has had, especially in the more recent amendments to the act. And we think, in fact, that the -- the fact that Congress instructed the GAO to study that is, if anything, more consistent with the idea that Congress decided not to legislate on the question of expert fees, but to leave it for another day after they've had the benefit of that study at a minimum. Now --
05-18 +++$+++ 38948 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Salmons, there's one difference, a marked difference, between this statute and the others, and that is, in -- in many of these cases, it is the consultant that is the primary, perhaps exclusive, aide to the parent. There's not a case where they have these determinations, a lawyer is in the front line. Even in this very case, wasn't it true that it was the consultant who was the aide to the parent and there was no lawyer on the scene?
05-18 +++$+++ 38949 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that is correct. During the administrative proceeding and in the -- and in the district court, there was no attorney here. But -- but I think there's one important thing to keep in mind about that is that that's -- Congress expected that that would be the result. This is not a statute where Congress didn't think about the role of experts. Among other things, section --
05-18 +++$+++ 38950 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What do you -- what do you say about the legislative history, which has been so prominent in the discussion this morning? The conference report.
05-18 +++$+++ 38951 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure. Well, I think the conference report clearly represents the view of the author of the conference report with regard to the meaning of the language.
05-18 +++$+++ 38952 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, don't you suppose it represents the view of the House and Senate conferees?
05-18 +++$+++ 38953 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I mean, I think -- I think what that points to is the perils of -- of using committee reports and statements --
05-18 +++$+++ 38954 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. I -- I realize that, but I mean, an --
05-18 +++$+++ 38955 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- from the legislative history when the text is clear.
05-18 +++$+++ 38956 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- an argument, a perfectly fair argument, can be made, whether -- whether you find it dispositive or not, that everything that goes into a committee report of one house cannot simply be taken as a literal reflection of the thinking -- the -- the actual thinking of -- of everybody on that committee, let alone a whole house. But when we're talking about a conference report that has been hammered out between two sets of conferees, I think it is reasonable to suppose that the conferees know exactly what is in that report and would take exception to it if it didn't represent their views. Isn't -- isn't that a -- a fair reason for saying that whatever you may think of reports in general, the conference report probably has a -- a superior authority?
05-18 +++$+++ 38957 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Your Honor, and let me try to explain why. First of all, this Court made clear in Casey, dealing with the exact same language, it took -- you know, that's at issue here --
05-18 +++$+++ 38958 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The text or --
05-18 +++$+++ 38959 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Language in the statute but not in the conference report.
05-18 +++$+++ 38960 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
05-18 +++$+++ 38961 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was there a conference report in --
05-18 +++$+++ 38962 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. That's right. And I'm referring to the statutory language here, that this Court considered this exact --
05-18 +++$+++ 38963 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And would you agree, if the statute is ambiguous, you can look at the conference report?
05-18 +++$+++ 38964 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but my point, Your Honor, is that what this Court said --
05-18 +++$+++ 38965 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would you answer my question?
05-18 +++$+++ 38966 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. If the Court thinks the statute is ambiguous, it's fair to look at the conference report.
05-18 +++$+++ 38967 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And why is it not ambiguous if the author of the conference report read it that way?
05-18 +++$+++ 38968 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For, among other reasons, Your Honor -- this is what I was trying to -- trying to state because this Court in Casey, dealing with this exact same language, said the following. It said where the statute contains a phrase that is unambiguous, attorneys' fees as part of the cost, that has a clearly accepted meaning in both legislative and judicial practices -- again, this Court in Casey tracked through the -- the usage, the history of the usage of this language and the way courts had responded to this over time -- that when that's the case, we do not permit it to be expanded or contracted by the statements of individual legislators or committees during the course of the enactment process. We think that holding in Casey is equally applicable here --
05-18 +++$+++ 38969 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, one thing here --
05-18 +++$+++ 38970 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and it be would wrong to look to that. Now, if the Court did, I think the thing that the Court should take away from it, if you're going to look at what Congress intended here -- and this is undisputably true. Everyone agrees on this. The primary purpose of this legislation was to respond to this Court's decision in Smith v. Robinson. And prior to this Court's decision in Smith, section 1988 had provided the means by which courts had awarded attorneys' fees in cases under IDEA's predecessor.
05-18 +++$+++ 38971 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does the gravamen --
05-18 +++$+++ 38972 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Smith foreclosed those fees --
05-18 +++$+++ 38973 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- does the gravamen -- well, I'll let you finish your answer.
05-18 +++$+++ 38974 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure.
05-18 +++$+++ 38975 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does the gravamen of the argument -- is it that this phrase is unambiguous?
05-18 +++$+++ 38976 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that is certainly our first argument, absolutely, Your Honor. The point I'm making now is that if you look at the context in which this language was used, Smith foreclosed the award of section 1988 fees. Congress responded shortly thereafter by -- by adding the precise language of section 1988 to the language in IDEA's predecessor. Now, however anomalous it would normally be to give the same language in two different fee provisions different meanings -- and it would be quite anomalous -- to do so here with section --
05-18 +++$+++ 38977 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But isn't it true that at the time they did that, it was well settled in cases of this kind that the Court would look at the conference report to ascertain the meaning of the statute? At that time, in 1986.
05-18 +++$+++ 38978 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think --
05-18 +++$+++ 38979 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was there any case that said you can't look at the conference report at that time?
05-18 +++$+++ 38980 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are plenty of cases, Your Honor, that -- that point out --
05-18 +++$+++ 38981 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- later.
05-18 +++$+++ 38982 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that the -- that -- that point out, even -- even I think beforehand, that the language is the primary basis to look.
05-18 +++$+++ 38983 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is the best evidence, but not the sole evidence.
05-18 +++$+++ 38984 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that even when it's unambiguous, that's the end of the matter.
05-18 +++$+++ 38985 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Counsel, even in -- in those benighted days, I don't think -- I don't think we ever would use the conference report when the statute was not ambiguous. I thought it was always a rule that -- that --
05-18 +++$+++ 38986 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We certainly agree with that, and I would just add that I'm not aware of any decision of this Court that would suggest that the type of statutory construction tools the Court would use would depend on what was in place at the time that the statute was enacted.
05-18 +++$+++ 38987 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. Of course --
05-18 +++$+++ 38988 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I mean, this Court applies the rules that it thinks are appropriate at the time it issues its decision. Now --
05-18 +++$+++ 38989 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You can't use red if the statute says green. Green doesn't include red. I understand that. And that's why, in fact, I wondered if the presence in this bill of the GAO section suggests in the bill itself the possibility that the word cost means something special. And if that's so, then I would think it is ambiguous enough to refer to the legislative history. It's not like using the word red and arguing it includes green.
05-18 +++$+++ 38990 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Two responses to that, Your Honor. The first is that we don't think it's ambiguous at all, and we think when -- even if you look at the GAO provision, you don't get the kind of ambiguity that would allow you to otherwise deviate from the -- the clear meaning of this language when it's -- when it's been consistent with statutory usage over time. As this Court noted in Casey, more than 34 statutes use -- expressly state attorneys' fees in addition to expert -- expert fees in addition to attorneys' fees, and there would be no point to those. But -- but moreover, I think the important thing to keep in mind is that it's not just this fee provision. If you want a further indication of Congress' intent, let me refer you to some other provisions of the statute itself, again, the language of the statute. Among other things, section 1415(d)(2) expressly details the content of the notice that has to be given to the parents about the procedural safeguards in the act, and it's very specific. It lists 13 different things that States have to explain in full to the parents. The -- the 12th and the 13th items on that list are the parents' ability to bring a civil action and their right to bring, quote, attorneys' fees, no mention whatsoever of expert fees. Thank you, Your Honors.
05-18 +++$+++ 38991 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Salmons. Mr. Vladeck.
05-18 +++$+++ 38993 +++$+++ FALSE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The Murphys' principal submission in this case is that the text of IDEA authorizes courts to award prevailing parents the costs of the experts who assist them in IDEA hearings which are typically held before State administrative tribunals and in Federal court.
05-18 +++$+++ 38994 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Vladeck, let me just give you a purely hypothetical situation. Let's suppose that the conferees can't agree whether expert fees should be included. Some think they should; some think they shouldn't. And somebody suggests a compromise. The compromise is we won't put it in the statute, but we'll put it in the report and we'll let the courts figure it out. What should happen in that situation?
05-18 +++$+++ 38995 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you so much, Your Honor. I think -- I think that if the statutory text was clear, which -- and I believe this text is clear in the other direction -- I think we would lose that case. But that is not this case, Your Honor, and let me explain why.
05-18 +++$+++ 38996 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well if that's not this case, what in the world prevented the conferees from putting something as important in this context as expert fees, as I understand it, probably more important than attorneys' fees -- what prevented them from putting that in the statute if that clearly was their intent?
05-18 +++$+++ 38997 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Without being flippant, Your Honor, I think that the conferees thought they had put it in the statute. Remember, this statute was passed back in 1986 when, at least with respect to the 99th Congress that enacted this provision, the word cost did not have the term-of-art meaning that was later ascribed to it in this Court's opinion in Casey.
05-18 +++$+++ 38998 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ As you --
05-18 +++$+++ 38999 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I was going to say it certainly had the meaning in Federal -- the Federal court context set forth in section 1920 of the Judicial Code.
05-18 +++$+++ 39000 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand that, Your Honor, but Congress thought it was adding -- that the use of the word cost and its breadth was a way of -- of including the cost. And -- and this is important, Your Honor. The language --
05-18 +++$+++ 39001 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Before you get past Casey, Casey didn't invent this as a definition. Casey said it has always meant this in innumerable Federal statutes. Casey was relying on a longstanding practice which existed long before Casey was -- was pronounced.
05-18 +++$+++ 39002 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, at the time Casey was -- at the time this case was -- excuse me -- at the time this statute was enacted by Congress, for example, costs were routinely read to include expert fees in title VII cases, for example. So I don't disagree with Your Honor's point. I am simply saying that the lens through which this statute must be judged is the understanding of the 99th Congress, and every indication in the legislative history here is that Congress used the word cost for its breadth, not as a term of art.
05-18 +++$+++ 39003 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Vladeck, why -- if that was what Congress had in mind, then how do you explain the multiple statutes that are listed in Casey that say, in the text of the statute, witness fees?
05-18 +++$+++ 39004 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My only explanation, Your Honor, is that the -- the Members of Congress who wrote this provision were unaware of the difference this Court would later ascribe to those statutes in Casey.
05-18 +++$+++ 39005 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Not later ascribe. I mean, Casey was relying on --
05-18 +++$+++ 39006 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Casey -- Casey is very clear in saying the judicial background against which Congress enacted 1988, talking about 1988, mirror the statutory background, and it says the judicial background was that expert fees were quite different than attorneys' fees. They were not a subset of attorneys' fees.
05-18 +++$+++ 39007 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Even -- even conceding all of that, which I -- I think is -- let me take a step back. Even if you reject that submission, the next provision of the statute on which we rely is section 4 of the Handicapped Children's Protection Act, which was enacted at the same time as section 1415(i)(3)(B), and if you look at that provision, it is clear that Congress intended the word cost to have a broader meaning. Section 4(b)(A) directs the General Accounting Office to study --
05-18 +++$+++ 39008 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where is that set forth?
05-18 +++$+++ 39009 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry? That's page -- excuse me. Page 4 of the red brief, Your Honor.
05-18 +++$+++ 39010 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you.
05-18 +++$+++ 39011 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That directs the General Accounting Office, first, to study the amount of attorneys' fees, costs, and expenses awarded to the prevailing party. In this statute, only the parents could be the awarding -- the prevailing party because, unlike 1988, this statute is a one-way street and provides only for awards to parents. And secondly, it says that for -- for the --
05-18 +++$+++ 39012 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what -- Mr. Vladeck, may I stop you there? Because the parents are always the plaintiff. It's not the child. The parents are representing the child.
05-18 +++$+++ 39013 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
05-18 +++$+++ 39014 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So prevailing party is identical to parents. The parents are the ones who prevail.
05-18 +++$+++ 39015 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's exactly my point, Your Honor. And -- and --
05-18 +++$+++ 39016 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but the word consultants appears in subsection (B) of the statute.
05-18 +++$+++ 39017 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, Your Honor.
05-18 +++$+++ 39018 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that specifically refers to the State educational agency and local educational agency.
05-18 +++$+++ 39019 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
05-18 +++$+++ 39020 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it uses personnel, which sounds to me a very odd way to talk about private experts hired by an attorney. You don't talk about them as personnel.
05-18 +++$+++ 39021 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, this provision, up until the last part which says, and expenses incurred by the parents, the -- the last clause of this provision was added in the conference. And the conference report makes that clear at page 7. The conference report makes it clear that the House -- the Senate recedes to the House bill. The GAO study provision was only in the House bill, with an amendment expanding the data collection requirements of the GAO study to include information recording the amount of funds expended by local educational agencies and State education agencies on civil actions and administrative proceedings. That clause was added, Your Honor, in conference. Prior to the conference, the provision was very much the same as it is today. So --
05-18 +++$+++ 39022 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Vladeck, my -- my problem with the argument you're now making is -- is a little more basic. Assuming, which I think is a -- is a major assumption, that expenses refers to expert fees, I don't see how it helps your case that in another part of the statute, the statute says, fees, costs, and expenses, whereas in the operative part that we're talking about here, it only refers to fees as part of costs. How does it help your case that --
05-18 +++$+++ 39023 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
05-18 +++$+++ 39024 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that elsewhere they go out of their way to add and -- and expenses? It seems to me that hurts your case.
05-18 +++$+++ 39025 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I don't believe that this is an inoperative part of the statute. I believe that -- that -- this direction to GAO makes no sense if all Congress sought to authorize was attorneys' fees and the costs that are historically available under section 1920 and section 1821. This provision makes no sense.
05-18 +++$+++ 39026 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Isn't -- isn't it really the point not that it makes no sense, but that it raises a question? It creates the question, which -- which we have in mind when we say the statute is ambiguous, and it is in answering that question, that you then turn to the legislative history, which has a pretty unequivocal statement in your favor. Isn't -- isn't that the -- the way to analyze it?
05-18 +++$+++ 39027 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- it certainly can be read that way. I read it as more of an affirmative statement by Congress --
05-18 +++$+++ 39028 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but if you conclude that the statute is ambiguous, what do you do with the Spending Clause problem? We've said that when you're imposing conditions in Spending Clause legislation, you have to do that unambiguously. It's what the Court said in -- in Pennhurst.
05-18 +++$+++ 39029 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
05-18 +++$+++ 39030 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If it's ambiguous, if the availability of expert fees, which is the big-ticket item in these things, not the attorneys' fees, States are not unambiguously on notice that they're accepting that liability when they take the funds.
05-18 +++$+++ 39031 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With all respect, let me quarrel with one of the premises in your question, which is that the -- the expenses for experts are, quote, a big-ticket item. If you look at page 28, footnote 17 of our brief, we've tried to compile all of the reported cases on the amount of expert fees that are awarded. They tend to be exceedingly modest, Your Honor. They run from a few hundred dollars to a few thousand dollars.
05-18 +++$+++ 39032 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's before the Magna Carta you're asking for in this case which would establish a whole -- a whole --
05-18 +++$+++ 39033 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
05-18 +++$+++ 39034 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- new profession of experts.
05-18 +++$+++ 39035 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that is not the case. The -- the rule that we seek to preserve has been the way courts have interpreted this provision since 1988. That's --
05-18 +++$+++ 39036 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, even if it is not the big-ticket item --
05-18 +++$+++ 39037 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So -- so these are modest.
05-18 +++$+++ 39038 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- it still has to be -- it still has to be unambiguously set forth in Spending Clause legislation.
05-18 +++$+++ 39039 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. And -- and if the Court finds that the legislative history adds the clarity that the statute otherwise needed -- is needed, I do not see why that would not comply with the Spending Clause, particularly since, Your Honor, this statute has been on the book for 20 years. There are dozens of opinions finding that expert fees are compensable. No Spending Clause argument has ever been raised in this kind of issue even though the statute has been on the books for 20 years.
05-18 +++$+++ 39040 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Under your reading of 1415, may a court award to parents any costs that they incur in connection with the litigation, or -- or would you just add expert fees to the attorneys' fees?
05-18 +++$+++ 39041 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, there is a body of law on that issue that already exists because courts have interpreted this provision since 1986. By and large, the costs that have been awarded under the statute are costs that are normally associated with litigation, copying costs, computer-assisted research when there's a lawyer involved.
05-18 +++$+++ 39042 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about testing? Isn't testing --
05-18 +++$+++ 39043 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The cost of testing and evaluation, which is -- which is a crucial component of the statute -- those costs have been awarded.
05-18 +++$+++ 39044 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if costs is not a term -- is not a legal term of art, if it really -- if it means just the expenses that parents incur, why wouldn't it include things like travel expenses or lost wages to attend the court proceeding?
05-18 +++$+++ 39045 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the way the courts have addressed that issue, Your Honor, is they -- they have looked to the -- the initial phrase of the statute, in an action or a proceeding, and have found those costs not sufficiently closely enough related to the action or proceeding to justify an award. And also courts have applied the rule 54 reasonableness standard in ordering costs under this provision, and therefore, expert costs have been reduced and other costs have been reduced to meet the general requirements of rule 54. I would like -- I would like to --
05-18 +++$+++ 39046 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would you read the phrase from the conference report as a limitation? That is, that -- we're trying to figure out what the Congress meant by the phrase costs. It says it means includes reasonable expense and fees of expert witnesses and reasonable costs of any test or evaluation that's necessary. So then is that -- have the courts read that as a -- as a limitation?
05-18 +++$+++ 39047 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, but they've also imposed limitations that are generally -- that generally constrain the awards of costs in cases. They have not done what -- what I understood Justice Alito -- his question to -- to get to, was to use this as -- as a broad, open door. I'd like to talk about the legislative history, and particularly I'd like to respond to Justice Scalia's comment about the conference report in this case. This statute was changed dramatically in conference. It does not reflect either the House bill or the Senate bill. If one reads the conference report in the Joint Explanatory Statement of the Committee of the Conference, which is three pages long, one will see that there were dramatic and substantial changes made because there were substantial disagreements between the House and the Senate, not on the question of reimbursement of expert costs. That -- that provision -- that understanding was shared on a bipartisan basis in both houses. But the --
05-18 +++$+++ 39048 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why were the earlier versions that included that expressly then not -- why didn't they make it through to the final version?
05-18 +++$+++ 39049 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the version that -- that was referred to earlier, Your Honor, came out of the Senate bill. The Senate bill contained a number of very controversial features. It was pared down, and the word cost was substituted, as the drafter of the language made clear on the floor of the Senate before the Senate voted on its version of the bill, and Senator Weicker's explanation of what the word cost means could not be clearer, and he -- he --
05-18 +++$+++ 39050 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, we've slid back from the joint statement to the statement of one Member on the floor now.
05-18 +++$+++ 39051 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm happy for you to rely on the joint statement, Your Honor. My only point is, is that the understanding in the House report is expert fees were included in the House bill, which referred to costs and expenses. Senator Weicker explains precisely the question you asked, which is what happened to the Senate bill. And Senator Weicker's explanation, which was made before the Senate, immediately before the Senate voted on the bill, makes clear that expert costs are included. Then, of course, you have the bill going to conference. There were many changes in the bill, including the language of section 1415. Prior to the conference, it did not say attorneys' fees as part of costs. It said attorneys' fees in addition to costs. That language was changed in conference to accommodate this Court's decision in Marek v. Chesny, which had to do with the applicability of rule 68.
05-18 +++$+++ 39052 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, speaking of that -- of that language, that attorneys' fees may be awarded as part of costs, does that suggest -- it doesn't say directly that costs may be awarded. Does that suggest that the attorneys' fees are simply to be regarded as another element of costs that -- that may be awarded under the costs statute?
05-18 +++$+++ 39053 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe that Congress, when it used the word costs, was adverting to section 1920. If that is your question, I do not believe that that is --
05-18 +++$+++ 39054 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, then where is the authorization? I think that's what Justice Alito's question goes to. You have to come up with some statutory authorization to pay expert fees. Now, attorneys' fees as part of costs does not authorize any costs. It just says whatever costs are otherwise authorized, attorneys' fees will be part of that.
05-18 +++$+++ 39055 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, it says -- it's part of the cost to the parents. And unlike section 1980, this language is not, contrary to the previous submissions to the Court, identical to the language in 1988. It says that a court may award attorneys' fees as part of the costs to parents, and the --
05-18 +++$+++ 39056 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is the authorization to pay costs, to pay those costs that include expert fees? All -- all this section says is they may award attorneys' fees as part of costs, and costs are presumably elsewhere authorized.
05-18 +++$+++ 39057 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
05-18 +++$+++ 39058 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But where is the authorization to pay?
05-18 +++$+++ 39059 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under -- under that reading, no statute would authorize the -- the payment of costs.
05-18 +++$+++ 39060 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Under that reading, wouldn't -- wouldn't you have a problem in a State court? Because doesn't this same provision govern in a State court, so that if the State did not have a separate cost statute, it would -- it would authorize nothing. Isn't -- isn't that the problem you'd run into.
05-18 +++$+++ 39061 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct. Let me make one last --
05-18 +++$+++ 39062 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you know any State that doesn't have a cost statute?
05-18 +++$+++ 39063 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I have not -- I've not looked at them to see whether they correspond to 1920, Your Honor.
05-18 +++$+++ 39064 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Vladeck, you have -- you referred to the section on GAO reporting --
05-18 +++$+++ 39065 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-18 +++$+++ 39066 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- as an assist to help you include consultant fees in -- in costs. But how do you explain the -- the provision in this very statute that says attorneys' fees can be reduced? Congress explicitly provided that you could reduce attorneys' fees -- this is in 1415(i)(3)(F) -- and not one word about reducing the costs of testing fees or consulting fees.
05-18 +++$+++ 39067 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, all costs are subject to the general requirement in rule 54 of reasonableness, and --
05-18 +++$+++ 39068 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then why -- then it would be unnecessary to have done that for attorneys' fees.
05-18 +++$+++ 39069 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Here's the reason, Your Honor. At least, here's the reason that -- as I understand it. Much of the litigation in IDEA cases takes out -- takes place outside the confines of Federal court. Most of the litigation takes place in State due process hearings. And what I believe Congress was interested in making sure were the general rules, like rule 11, the general rules that punish parties for engaging in vexatious or frivolous litigation would have some analog in these proceedings. And therefore, what the court -- what -- what Congress did was to authorize a Federal court, in reviewing an application for attorneys' fees incurred before a State-administered tribunal, because that's where the action takes place in these cases, to -- to be able to reduce an attorneys' fee award if there was misconduct by the parent or -- or the lawyer, misconduct in the sense of trying to protract litigation or multiply proceedings. And interestingly, Your Honor, the -- the conference report addresses this issue and does explain -- and now I'm quoting from page 6 of the -- of the conference report, the joint explanation -- that the court shall accordingly reduce the amount of attorneys' fees and related expenses otherwise allowable if they determine that this misconduct had taken place. So I think that at least in the conference report, Congress is signaling that if there were other costs that were incurred unreasonably as a result of lawyers protracting or delaying the proceeding, they too would be subject to the same reduction.
05-18 +++$+++ 39070 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that's effective too, as though it were written into the statute, because one committee of Congress said so. That's effective.
05-18 +++$+++ 39071 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, this is not one committee of Congress. This was -- this -- the conference report was circulated to all Members of Congress before they voted on the final bill.
05-18 +++$+++ 39072 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and they read it.
05-18 +++$+++ 39073 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, this is the final bill they voted on, and if they turned the page --
05-18 +++$+++ 39074 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's the only thing we know for sure that they voted on.
05-18 +++$+++ 39075 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct, Your Honor, though the vote technically, of course, is a vote to approve the conference report. That is the final vote Congress took on this legislation. The vote was a vote to approve the conference report, which contains four pages -- three pages of text and three pages of explanation.
05-18 +++$+++ 39076 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did the -- did the final bill say we adopt the findings of the conference report?
05-18 +++$+++ 39077 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It did not, Your Honor.
05-18 +++$+++ 39078 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And other bills have said that.
05-18 +++$+++ 39079 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
05-18 +++$+++ 39080 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Like in -- as in Nofstiker.
05-18 +++$+++ 39081 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As far as I know, Your Honor, the procedure followed here was the standard procedure when the conference report takes bills and essentially amalgamates them or redrafts them --
05-18 +++$+++ 39082 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But was this legislation vetoed by the President?
05-18 +++$+++ 39083 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was not, Your Honor.
05-18 +++$+++ 39084 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, when the President signed it, did -- did he also approve the conference report? Did he have the conference report in front of him?
05-18 +++$+++ 39085 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do not know that.
05-18 +++$+++ 39086 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He had the statute in front of him, didn't he?
05-18 +++$+++ 39087 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- he -- my assumption, Your Honor, is he had this.
05-18 +++$+++ 39088 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You -- you think he read the conference report too.
05-18 +++$+++ 39089 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe that. (Laughter.)
05-18 +++$+++ 39090 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not arguing that he did. My assumption, though, is if he had the statute before him, he probably had this. The President --
05-18 +++$+++ 39091 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Was there any opposition? Was there any -- is there any history of anyone in this Senate or the House either before or after suggesting that they didn't want to allow recovery for the expert fees?
05-18 +++$+++ 39092 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not at all, Your Honor. And one of the points that I would like to make -- and I would like to return to the language of 1415 -- is this statute is all -- the IDEA is a statute all about protecting parents and children with disabilities. One provision of IDEA we have not mentioned, but I think is an important one, is the general guarantee that --
05-18 +++$+++ 39093 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, if I could interrupt you. As I understood it, this gets back to where you started. Your position is that if this same scenario had taken place in 1988 as opposed to 1986, that your position would not be the same. In other words, you said -- your suggestion was that it was the legal context at the time in '86 that governed what Congress thought the effectiveness of its statements in committee reports would be. Maybe I'm ascribing one of the Justice's views to you.
05-18 +++$+++ 39094 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If -- if you're -- and -- and forgive my -- my lack of knowledge of the exact history of this, but if 1988 is a date upon which the Court begins to be reluctant to look at legislative history, I would concede that my case would be different post- 1988. It is quite clear that the Congress that enacted this bill assumed, and rightly so, that this Court and reviewing courts would rely on legislative history. Indeed, when this Court issued its opinion in Casey, footnote 5 of Casey says that this case may be different because of the conference report.
05-18 +++$+++ 39095 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what date in -- I mean, so we have two different modes of interpreting statutes: one, pre-1988 in which we use legislative history, and one post-1988 in which we don't use legislative history?
05-18 +++$+++ 39096 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
05-18 +++$+++ 39097 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, that -- that's what you're suggesting, isn't it?
05-18 +++$+++ 39098 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What I am suggesting is that the Court's role, as I understand it, is to be the faithful agent of Congress, and if the -- if the expectation of Members of Congress is that language in committee reports will -- will garner respect from the Court, it is hard to then change the rules on Congress. The operative question here is what --
05-18 +++$+++ 39099 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The reason one does not use legislative history, if one does not use it, as I don't -- as I don't, is not because Congress doesn't expect it to be used, but because Congress does not have the power to delegate to one of its committees the content of -- of its statutes. The Constitution provides that legislation will be passed by two houses and signed by the President, and the problem with legislative history, for those of us who have a problem with it, is this amounts to a delegation by Congress. It's not a matter of what Congress expected. I don't care what Congress expected. It can't do it. It can't leave it to a -- to a committee to -- to fill in the blanks in a statute. That's the problem, and that has nothing to do with expectations.
05-18 +++$+++ 39100 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, my only point is that the Congress that enacted this statute, the 99th Congress, thought -- and this -- this view is expressed repeatedly in the legislative history, and I believe it -- it is reflected in the statutory language as well -- that the word costs here would be given a broad meaning to ensure that parents were made whole when they have to fight against school boards to secure that which IDEA guarantees their child, which is a free and appropriate public education. This Court has repeatedly in Township of Burlington, in Tatrow, in Florence County said that provisions of IDEA should not be interpreted in ways that detract from this fundamental guarantee. There would be no more clear detraction from that guarantee than requiring parents to bear the expense, which for many of these parents is enormous, even though Chief Justice, it may amount to only a few hundred or a few thousand dollars, to retain an expert, to do battle with school boards who have experts on staff. Earlier this term, this Court decided Schaffer v. Weast. Post Schaffer, parents cannot hope to meet their burden of production, let alone their burden of proof in IDEA hearings without expert assistance. To force parents to bear those expenses, even when they prevail, will detract from IDEA's core guarantee that the -- that the education provided to the child is both appropriate and free. Those provisions are in the statute to avoid having parents being compelled to make the Hobson's choice: a free education that's inappropriate or an appropriate education that is not free. This Court repeatedly instructs lower courts to interpret statutes consistent with the statutory context. I would urge that in looking at section 1415, you take a look at -- at -- there are now eight sections of the statute that reinforce this guarantee. It is hard to imagine a statutory guarantee more deeply embedded in an act than the guarantee of a free and appropriate public education than is embedded in the IDEA. Permitting parents to recover their expert costs --
05-18 +++$+++ 39101 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's not -- if the parents make a reasonable effort, but they lose, it's not going to be free. I mean, the -- the statute gives them --
05-18 +++$+++ 39102 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but --
05-18 +++$+++ 39103 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- a right to oppose the school board's choice, and if what you say about making it easier on parents of limited resources, they're told it's going to be a gamble if you lose, you don't get your fees.
05-18 +++$+++ 39104 +++$+++ TRUE +++$+++ MR. VLADECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor, but they lose only when the school board is providing, in fact, an education that is appropriate. But where the parent prevails because the school board was not providing a free and appropriate education, the act's guarantee would be seriously eroded unless parents can recover the costs of their expert -- of their experts. If there are no further questions, thank you very much.
05-18 +++$+++ 39105 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Kuntz, you have 4 minutes remaining.
05-18 +++$+++ 39107 +++$+++ FALSE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. Shifting the costs to the school district of experts' fees will also shift scarce public resources away from the point where it's most effective, at the stage when the parent meets with the IEP team to resolve the differences. When Congress has revisited this statute, as it has since 1986, time and time and again, it's -- it's spoken to the -- to the goal of reducing litigation and -- and reducing the costs associated with litigation. If -- if as the Respondents claim, it's central to the fulfillment of this statute that -- that Congress be seen to have shifted the costs of these so-called experts to the -- to the school district when -- when they prevail, I -- I call to the Court's attention that the reality is that the school district has no staff of experts as Respondents intimate. It has no staff of consultants. What it has are the people who actually provide the services to the child, and when they come to testify at the hearing, typically they're -- they're scared or nervous because it's the first time that they've been at such a hearing. They're not professional experts. They're not testimonial experts. Those are the kinds of experts that the Respondents are talking about and asking this Court to see in the statute. One needs to ask the question if Congress really intended expert fees to be a part of this statute, what stayed Congress' hand from writing those words into the statute? It's very clear that Congress knew how to do that when it became appropriate, in its judgment, for it to do that. To sort of see it here lurking in the shadows in -- in sort of the backwaters of -- of the act and to intimate from there that the plain language of the statute has meaning that needs to be expanded and enlightened by the congressional report doesn't make a lot of -- of sense. If -- if it's that important, it should have been there. The -- its absence is very, very telling. And --
05-18 +++$+++ 39108 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Don't the school boards have some consultants and experts in this area other than the teachers?
05-18 +++$+++ 39109 +++$+++ TRUE +++$+++ MR. KUNTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Typically they do not, Your Honor. The typical IEP team meeting has the school psychologist perhaps, has the -- the teachers of the -- of the child. Those -- some of those are required members. It has the parent of a handicapped child. It might have the -- the service providers like the speech pathologist. And when -- when it comes to a trial, comes to a due process hearing, those are the folks who come and testify as to what they know about the child, the test results they have. There are no typical consultants or testimonial experts that appear for the school district. So the -- the central part of this statute, its -- its revolution, where it brings parents of children who are disabled into contact with the -- with the school, has had a wonderful effect in fulfilling the promise of this statute. Energizing the litigation aspect of this by transferring those costs to the school district will -- will take away and will detract from the -- the true meaning of the statute, which was to build a partnership between the parents and the school district, not to let it dribble off into litigation. Thank you.
05-18 +++$+++ 39110 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Kuntz. The case is submitted.
05-184 +++$+++ 39114 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument in number 05-184, Hamdan against Rumsfeld. Mr. Katyal, you may proceed.
05-184 +++$+++ 39116 +++$+++ FALSE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: We ask this Court to preserve the status quo to require that the President respect time-honored limitations on military commissions. These limits, placed in articles 21 and 36 of the Uniform Code of Military Justice, require no more than that the President try offenses that are, indeed, war crimes and to conduct trials according to the minimal procedural requirements of the UCMJ and the laws of war themselves. These limits do not represent any change in the way military commissions have historically operated. Rather, they reflect Congress's authority under the Define and Punish Clause to codify limits on commissions, limits that this Court has historically enforced to avoid presidential blank checks. And because this commission transgresses those limits, it should be struck down and the district court order reinstated. If I could turn to the jurisdictional matter for a few moments first. We believe that the DTA, while certainly not a model of clarity, does not divest this Court of jurisdiction, for four essential reasons. The first is that, if I could turn to the surreply at page -- the appendix at page 14(a), that contains the initial version of the bill that passed the Senate on November 10th. And at 14(a) it says, on the effective-date provision, "The amendment made by paragraph 1," which is the jurisdiction-stripping provision, "shall apply to any application or other action that is pending on or after the date of enactment of this act." That language clearly attempted to strip courts of jurisdiction over Guantanamo claims. That language, however, was changed in the final version of the DTA, and the final version of the DTA is found at page 10(a) of the surreply. And that has the following as its effective date. It has two effective-date provisions. The first one I want to start with is H(2), review of combatant status tribunal, CSRT, and military commission decisions, "Paragraphs 2 and 3 of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of enactment of the Act." And then, there is a separate provision for the rest of the DTA, for --
05-184 +++$+++ 39117 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where was that change made from the prior version?
05-184 +++$+++ 39118 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The change was made between November 10th and November 15th.
05-184 +++$+++ 39119 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but, I mean, what -- it was made in what house? Was it made by the conference committee?
05-184 +++$+++ 39120 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was made in the Senate.
05-184 +++$+++ 39121 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It was made in the Senate. So the House presumably never saw the prior --
05-184 +++$+++ 39122 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That --
05-184 +++$+++ 39123 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- language.
05-184 +++$+++ 39124 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-184 +++$+++ 39125 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the President, who signed this bill, never saw the prior language.
05-184 +++$+++ 39126 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
05-184 +++$+++ 39127 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, why should we attribute to both the House and to the President a knowledge of the prior version of the legislation?
05-184 +++$+++ 39128 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because the language itself was, I think, the subject of an immense amount of debate. And, indeed, when the language was --
05-184 +++$+++ 39129 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In the Senate.
05-184 +++$+++ 39130 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the Senate. And well-known. And, indeed, you don't have to attribute any knowledge to the President. We have evidence in the record that the administration tried to change the language back to the original formulation. And, indeed, in the House, the chairman of one of the -- the vice chairman of the Conference Report said that the change in the language was in -- was -- the change in the language meant that it grandfathered pending cases such as this one. So, this is not an example of which we have to resort simply to the negative inference of Lindh. However, we do think that is the second reason for you to believe that this case is grandfathered under the existing DTA.
05-184 +++$+++ 39131 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But isn't that --
05-184 +++$+++ 39132 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What, in addition to this case -- I mean, this case is pending in the U.S. Supreme Court. There are many cases pending in the district court when this law comes into effect. What about those cases?
05-184 +++$+++ 39133 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We believe that, as the cosponsor said, on November 15th when they introduce the final version of the language, that all of those cases are grandfathered with respect to the H(1) effective-date provision and the E(1) jurisdiction-stripping provision. However, that still leaves in place the Government's main argument in the D.C. Circuit below, which is that the E(2) provision governing CSRT and final decisions, and the H(2) provision governing final decisions of military -- final decisions of CSRTs, truncates all of the review that is currently in the D.C. Circuit. So, it's certainly plausible -- it's certainly possible, though it's not, of course, presented in this case, to read the DTA as truncating the vast majority of claims at Guantanamo in current pending cases. Of course, that isn't the issue before you here. The issue before you here is simply the Hamdan case, and there was -- and there was a strong -- the strong desire by the Congress not to interfere with this Court's traditionally exercised jurisdiction.
05-184 +++$+++ 39134 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Please go over that again. I'm not -- I'm not sure I understood -- I understood your response.
05-184 +++$+++ 39135 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
05-184 +++$+++ 39136 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You say that it could be read to preclude cases in the lower courts, but not here.
05-184 +++$+++ 39137 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, cases in which there is a final CSRT decision; that is, that the Government's argument in the D.C. Circuit, Justice Scalia, is that there are two different ways in which the DTA truncated the review of Guantanamo cases. One is the claim that the jurisdiction-stripping provision applies to pending cases. That, we reject. That, we think the Senate rejected on November 15th when it passed the bill. The other is the claim that the E(2) provision governing final decisions of CSRTs, which does, of course, apply to pending cases, as the plain text says, eliminates and truncates a vast -- majority of the detainees' claims. That is the provision --
05-184 +++$+++ 39138 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does that mean, in practical terms, that the -- that the -- that the other claims that are in the district court get transferred to the circuit, the circuit is bound by the limitations that you've just described, and, at the end of the day, the complaining parties in those cases can raise the question whether they -- whether Congress could properly have truncated them, as it did, but it's simply got to wait?
05-184 +++$+++ 39139 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. And --
05-184 +++$+++ 39140 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
05-184 +++$+++ 39141 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to be clear, that's not the position we're saying that is the DTA. That's not presented here.
05-184 +++$+++ 39142 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I realize --
05-184 +++$+++ 39143 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's the issue --
05-184 +++$+++ 39144 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
05-184 +++$+++ 39145 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- below, in the D.C. Circuit. In addition, we believe that this statute doesn't fall within the Bruner Hallowell presumption that the Government seeks to -- seeks to use here, for a few reasons. The first is, this is not a statute that is merely divesting a lower court of jurisdiction. Rather, it's a statute that alters substantive rights of Mr. Hamdan. In particular, as the Government itself says, it eliminates question 2, upon which certiorari was granted, which is compliance with the Geneva Conventions. In addition, it alters entirely what both courts below found, which is that Mr. Hamdan has a pretrial right, a right analogous to Abney versus United States, to bring his claim now, because he's challenging the jurisdiction of the tribunal. That pretrial right is something that mirrors -- that goes all the way back to the founding, in the early cases that this Court decided, on pretrial habeas. In addition, we believe that --
05-184 +++$+++ 39146 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why does it -- why does it affect the scope of the review that he could get eventually? If there's a final decision, there can be review of whether the use of the standards or procedures that were used by the commission to reach a final decision is consistent with the Constitution and laws of the United States? Why doesn't that encompass any claim that he might want to make later on?
05-184 +++$+++ 39147 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, as the Government says, it does -- certainly does not encompass question 2, because it eliminates the word "treaties." It's a change from the habeas corpus statute. More generally, it doesn't do two things. First, if that's the reading that the Government wants to give, well, then it essentially means that the -- that the President has the ability to block habeas corpus or post-DTA review for all time, because, Justice Alito, it doesn't turn on -- you can't walk into court right after you're convicted, under the DTA; you can only walk into court after a final decision. And a final decision requires the sign-off of the President of the United States. And so, effectively, this reading would give a litigant the ability to block Federal Court review for all time.
05-184 +++$+++ 39148 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, criminal litigation review after the final decision is the general rule. There generally is not any interlocutory -- any interlocutory appeal. And what you say could happen in any criminal case if you assume bad faith on the part of the people who are responsible for making the decisions along the way. They could delay indefinitely and postpone the entry of a final decision.
05-184 +++$+++ 39149 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia -- Justice Alito, if this were a final -- if this were like a criminal proceeding, we wouldn't be here. The whole point of this is to say we're challenging the lawfulness of the tribunal itself. This isn't a challenge to some decision that a court makes. This is a challenge to the court itself. And that's why it's different than the ordinary criminal context that you're positing. The ordinary criminal context you're positing -- and I'm thinking of a case like Schlesinger versus Councilman, a court-martial case -- what the Court has said is that it's the -- the predicate for abstention is the idea that Congress has fairly balanced the rights of both sides, an independent branch, and has -- and has made certain determinations. Here, none of that has happened. It's all been made by the executive. And the difference is crucial in military justice, because, as Justice Kennedy said for the Court in Loving, the framers harbored a deep distrust of military tribunals. And the thing that makes it different than the ordinary criminal context, the thing that, as this Court said, stops military justice from being lawless is the Congress of the United States setting clear limits on the use of military justice. Now, if those limits had been observed, if this Court -- if the military commission complied with the rules of courts-martial, we wouldn't be here. Our whole point is that they don't, and that it falls outside of the well-recognized abstention exception for courts-martial cases. In addition, we believe that to further -- to further on -- Justice Alito, on your point -- this Court has already said in the military commission context that a different rule applies. In Quirin, this Court rushed in to hear a military-commission challenge before the commission was over, and the reason why it did so was, it said that the public interest required adjudication of these issues. And the public interest is no less severe in that case than it is here. That is, this is a military commission that is literally unbounded by the laws, Constitution, and treaties of the United States. And if you adopt the Government's position here, it effectively replicates the blank check that this Court rejected in Hamdi.
05-184 +++$+++ 39150 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Could I come back to Justice Alito's question as to what the normal procedure would be in criminal cases? Suppose you're -- you have a challenge to the makeup of the tribunal in a criminal case. Is it -- is it the normal practice that you would get to raise that challenge? Let's say one of the judges is disqualified for some other reason. Can you normally raise that challenge before the criminal case is filed?
05-184 +++$+++ 39151 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe so.
05-184 +++$+++ 39152 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, there would be nothing different in this situation, if you couldn't raise it until it was final.
05-184 +++$+++ 39153 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, everything is different about this. That is, in your posited hypothetical, there is some law that you know will govern that ultimate question about disqualification or whatever the --
05-184 +++$+++ 39154 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, I know --
05-184 +++$+++ 39155 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the matter is --
05-184 +++$+++ 39156 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the merits of the issue. I'm just talking about the timing of the issue.
05-184 +++$+++ 39157 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I do think that there's an integral relationship to the -- between the two. That is, that the predicate for abstention has always been that Congress, or some other entity, has fairly balanced the rights of both sides. Here, you don't have that fundamental guarantee. Indeed, if you adopt the Government's reading here, the -- they have said that they want to try 75 military-commission cases or so in the first wave. You will then be left with 75 trials that take place without even the most basic question of what the parameters are that these commissions are to operate under.
05-184 +++$+++ 39158 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, when you say Congress hasn't fairly balanced it, I mean, I guess that depends upon your reading of the statute. If, indeed, you read it the way the Government reads it, they would assert that Congress did consider these military commissions and thought that it was okay to wait until they had completed their work before full review was provided.
05-184 +++$+++ 39159 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
05-184 +++$+++ 39160 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, it's sort of a -- you know, a -- you're running in a circle.
05-184 +++$+++ 39161 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's precisely, Justice Scalia, our argument, that I don't think one can consider the abstention claim -- and this is what I believe both courts below had held -- you can't consider the abstention claim without deciding the underlying merits. And if you believe that the -- that Congress has fairly balanced the rights and are compliant with the UCMJ and the like, then I don't think -- then you're reaching the merits, and there's no abstention holding. So, if I could turn to the merits -- the merits challenges. The first thing I'd like to discuss on -- is question number 1 and whether this military commission states a charge that violates the laws of war. And we believe it doesn't, for two essential reasons. First, the only charge in this case is one of conspiracy. And conspiracy has been rejected as a violation of the laws of war for -- in every tribunal to consider the issue since World War II. It has been rejected in Nuremberg, it's been rejected in the Tokyo tribunals, it's been rejected in the international tribunals for Rwanda and Yugoslavia, and, most importantly, it's been rejected by the Congress of the United States, in 1997 --
05-184 +++$+++ 39162 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Katyal, will you help me? Where is the conspiracy charge in the papers?
05-184 +++$+++ 39163 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The charge itself, Justice Stevens, is found at 63(a) of the Petition appendix.
05-184 +++$+++ 39164 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, thank you very much.
05-184 +++$+++ 39165 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure. And --
05-184 +++$+++ 39166 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And suppose you had a tribunal that was properly constituted, as you contend that it ought to be, and then the charge was conspiracy. Would the -- would the courts then have review before the trial proceeded? And let's assume that it's a conspiracy and some other charge. Is there some analog in ordinary criminal proceedings where you challenge, in advance, the validity of the charge?
05-184 +++$+++ 39167 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Ordinarily, Justice Kennedy, the answer would be no, you wouldn't challenge the validity of the charge. And, indeed, I think Councilman itself is a -- is a case in which there was a charge at issue, and the question was subject-matter jurisdiction. The reason why this is different, however, is twofold. First, the claim that Mr. Hamdan is making is that conspiracy itself falls entirely out of any authorization of Congress. In Councilman, the question was -- there was an article, article 134 of the UCMJ, which was a criminal statute, and it had been interpreted to punish drug dealing. And in the case the court said where -- this Court said, "We will defer as to whether the facts showed the requisite amount of drug dealing to violate the Uniform Code." Here, by contrast, Mr. Hamdan's claim is that the conspiracy charge falls entirely outside of the laws of war as a whole.
05-184 +++$+++ 39168 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Could the tribunal interpret the conspiracy charge to mean joint enterprise, which would be closer, at least, to accepted practice in the international tribunals?
05-184 +++$+++ 39169 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The charge itself is one of conspiracy. Joint enterprise is, itself, not an independent charge in international tribunals; so you can charge, for example, murder. And your theory, in an international tribunal, of how you get to murder is joint criminal enterprise. But you'd have to charge the underlying violation, itself. Here --
05-184 +++$+++ 39170 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm still not sure why, if we think that there is merit to your argument that the tribunal is not properly established anyway, that you -- we have to reach the conspiracy charge.
05-184 +++$+++ 39171 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If you --
05-184 +++$+++ 39172 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if we -- and if we think that you're wrong on that, I don't know why that court can't hear the conspiracy argument.
05-184 +++$+++ 39173 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there's two different reasons. The tribunal is not authorized, and that the charge doesn't state a violation. Now, even if we assume that the tribunal is authorized and that all of its microprocedures are authorized under the act of Congress, this -- allowing this charge, conspiracy, is to open the floodgates to give the President the ability to charge whatever he wants --
05-184 +++$+++ 39174 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's --
05-184 +++$+++ 39175 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in a military commission.
05-184 +++$+++ 39176 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Katyal, I mean, that's a good argument for -- from a broad policy, but isn't there a narrower reason? If we assume that the -- that the commission is properly established for some purpose, by definition that purpose is limited. We are not dealing here, as we would in the normal criminal case, with a court of general jurisdiction. If we're dealing with a court of general jurisdiction, we postpone claims like yours til the end, because we say the jurisdiction is so broad, they probably had it. Maybe not, but we can wait. But in a -- in a -- in a court of limited jurisdiction, or a commission of limited jurisdiction, we can't indulge that presumption. And that's why, I thought, your claim that conspiracy is not cognizable can be raised at the beginning, because it's inseparable from the limited jurisdiction of the court. Am I off in left field?
05-184 +++$+++ 39177 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You are --
05-184 +++$+++ 39178 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or do you like that answer.
05-184 +++$+++ 39179 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- absolutely correct, Justice --
05-184 +++$+++ 39180 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
05-184 +++$+++ 39181 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Souter. And, indeed, I would add to that that the conspiracy charge here, Justice Kennedy, is -- the problem with it is compounded by the fact that the tribunal itself is charging a violation of the laws of war, when the military commission has never operated to try violations of terrorism in stateless, territoryless conflicts. That is, it's not just the charge, but it's where the charge operates that we find so central, that the -- that there are two different things --
05-184 +++$+++ 39182 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But is it clear that the --
05-184 +++$+++ 39183 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- there's two different problems.
05-184 +++$+++ 39184 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- charges against your client could not be amended?
05-184 +++$+++ 39185 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They may be amended, yes.
05-184 +++$+++ 39186 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then why should we -- why should there be review, before trial, of a charge that could be amended?
05-184 +++$+++ 39187 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Be- --
05-184 +++$+++ 39188 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There could be additional charges added by the time there's a final decision.
05-184 +++$+++ 39189 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the -- Justice Alito, the Government has had, essentially, now 4 years to get their charges together on Mr. Hamdan. At this point, that -- you know, what you have before you is the charge. And that -- and they've stuck with this charge, of conspiracy, which is not a violation of the laws of war. And, indeed, the -- and the -- it's not just conspiracy isn't, but that the commission is operating in totally uncharted waters, because it's charging a violation in a stateless, territoryless conflict, something as to which the full laws of war have never applied. Indeed, Justice Alito, all 10 people facing military commissions today, all 10 indictments charge conspiracy right now. Seven only charge conspiracy.
05-184 +++$+++ 39190 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't this contrary to the way legal proceedings and appeals are normally handled? You have a -- essentially, a pretrial appeal concerning the validity of a charge that may not even be the final charge.
05-184 +++$+++ 39191 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not in -- not here, because, as, I think, both courts below indicated, this case, and his challenge, falls very much like Abney versus United States. This is a challenge to the lawfulness of the underlying tribunal and the charge that's against him. Indeed, this Court, in Quirin, heard, as its first question, Does the charge state a violation of the laws of war? That was the first thing it said had to be asked. So, I think the -- what we are doing is applying nothing more than the settled practice that has always been the case with respect to military commissions. And it -- in -- the public interest here, again, just as in Quirin, I think, requires some limits placed on military commissions, Justice Alito, because, otherwise, if the Government's position is taken as the final word, it'll give the President the ability to essentially create that blank check, for years on end, render a final decision at some point, and then that final decision will then be subject to the truncated review procedures in the DTA, which I don't think is what Congress intended when they changed the language of the bill. Rather, I think what they did was intend that this Court would decide the basic -- apply the basic structural limits on military commissions that have always applied.
05-184 +++$+++ 39192 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask this question about the charge? The charge is not just conspiracy in the abstract, it's conspiracy to do specific things, one of which is attacking civilians and civilian objects. And is it clear that the commission would not have -- a military commission would not have jurisdiction to try a conspiracy to armed civilians in a war zone, for example?
05-184 +++$+++ 39193 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is clear, Justice Stevens. That is -- that is precisely what the international tribunals reject. Conspiracy is a standalone offense. One can charge, as a war crime, attacking civilians and the like, as a pure crime, but what you can't do is charge conspiracy. And, indeed, the Congress of the United States, in 1997, when they wrote the War Crimes Act, essentially made that conclusion, because they defined "war crimes" with incorporating a variety of treaties --
05-184 +++$+++ 39194 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, suppose that proof were to show that there was very substantial and knowing involvement rendering him basically an accomplice or a principal, but it was -- it was still found under conspiracy. Would international law violate that?
05-184 +++$+++ 39195 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the --
05-184 +++$+++ 39196 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Assume that he's been given notice of -- during the -- during the course of the proceedings as to what the charges specifically are as the proof is adduced.
05-184 +++$+++ 39197 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, on this particular point, on conspiracy, yes, if -- that you couldn't charge some other offense, like aiding and abetting, and transmute some conspiracy charge into that. Rather, the international law and the laws of the United States recognize you can prosecute him for aiding and abetting as a violation of whatever the specific underlying crime is, like murder or attacking civilians. What you can't do is use the standalone offense of conspiracy. And here's why. Because the standalone offense of conspiracy is rejected by international law, because it's too vague. And this Court has said that the test for a violation of the laws of war is when universal agreement and practice make it a violation. The world rejects conspiracy, because if it's adopted it allows so many individuals to get swept up within its net. Justice Kennedy, aiding and abetting requires a much closer relationship between the conduct and the individual offender. Conspiracy does not. And so, for example, under the Government's theory, a little old lady in Switzerland who donates money to al Qaeda, and that turns out to be a front for terrorist acts and so on, might be swept up within this broad definition of conspiracy. And that's why international law has so rejected the concept of conspiracy.
05-184 +++$+++ 39198 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that wouldn't be --
05-184 +++$+++ 39199 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, let me put it this way. If we were to find that the Geneva Convention or other settled principles of international law were controlling here, why couldn't we just remand to the D.C. Circuit and let it figure that out? Or let it -- have the tribunal figure it out, in the first instance, assuming the tribunal is properly authorized.
05-184 +++$+++ 39200 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it is the role of this Court to confine the tribunal to its lawful jurisdiction. That's what this Court held in Quirin. And that's what we think you should do here. The tribunal itself can't be the judge of its own jurisdiction.
05-184 +++$+++ 39201 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, suppose we told the D.C. Circuit that the Geneva Convention or some other body of international law controls, and just remand it for it to go into all these arguments?
05-184 +++$+++ 39202 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Again, we think, at this point, that the public interest is best served by this Court saying that conspiracy doesn't violate -- to set some limits. After all, all -- everyone facing a military commission is facing this charge. Seven are only facing this charge. The Government wants to put 75 of these cases through. And it has taken 4 and a half years since the President's military order --
05-184 +++$+++ 39203 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask --
05-184 +++$+++ 39204 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- for this case --
05-184 +++$+++ 39205 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- this question? Supposing the charge had been slightly amended. Instead of saying, "The criminal purpose, and conspired and agreed with Osama bin Laden to commit the following offenses," it said, "It and Osama bin Laden attempted to -- aided and abetted in committing the following offenses." Would it then be -- violate the laws of war?
05-184 +++$+++ 39206 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the charge is the specific offenses themselves, not aiding and abetting, Justice Stevens --
05-184 +++$+++ 39207 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the specific offenses are attacking civilians and attacking civilian objects.
05-184 +++$+++ 39208 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, with respect to this particular claim about conspiracy, that would solve that problem. If you say the charge is attacking civilians, and your theory of proving it is aiding and abetting the murder or the attacking of civilians --
05-184 +++$+++ 39209 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And then --
05-184 +++$+++ 39210 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- yes.
05-184 +++$+++ 39211 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- what if the trial judge who looked at the indictment or ruling on a motion to dismiss the indictment, or its equivalent at this time -- said, "Well, I'm going to construe these words 'conspired or agreed' as the substantial equivalent of 'aiding and abetting.'" Would that let the charge stand?
05-184 +++$+++ 39212 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would mix apples and oranges, because "conspiracy" and "aiding and abetting" are two entirely different things. One is a standalone offense. And one is a theory of how to prove a violation --
05-184 +++$+++ 39213 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the language is "conspired and agreed with." And "agreed with" is pretty close to "tried to do it himself."
05-184 +++$+++ 39214 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's not, Justice Stevens, because it requires a different level of participation, and the liability is entirely different. Because if conspiracy is accepted, you're accepting Pinkerton liability. That's what the Government's own charge said -- the Government's own instruction said, which means that Mr. Hamdan is liable for all the acts of 9/11 and everything al Qaeda has done. "Aiding and abetting," as you are saying, Justice Stevens, in your hypothetical, is a much more closely tethered theory of liability, requiring a higher level of individual culpability and a totally different level of punishment.
05-184 +++$+++ 39215 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ As I recall the Sixth Amendment, you're entitled to know the charge against you. And you're saying that the charge of conspiracy is not the charge of aiding and abetting.
05-184 +++$+++ 39216 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. If I could turn to a second argument for why we believe this military commission is impermissible, and that is that it defies the Uniform Code of Military Justice. The Uniform Code of Military Justice, in article 36, sets minimal ground rules for military justice, writ large. And it says that the President can't act in ways that are contrary to, or inconsistent with, this chapter. As Judge Robertson found, already we know that has happened here. Mr. Hamdan has been kicked out of his criminal trial right at the get-go. And the Government's position is that they don't have to abide by the UCMJ, which is a further reason, of course, why we believe that abstention isn't appropriate, because it defies the rules set out by Congress. We're asking this Court to apply the minimal rules of the UCMJ to the military commissions that operate at Guantanamo Bay, because article 2 of the UCMJ has been extended, and its protections now extend to Guantanamo Bay and protect those who are detained there. And one of its protections is the right to be present, and that has been fundamentally violated by -- already. If I could --
05-184 +++$+++ 39217 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You acknowledge the existence of things called commissions. Or don't you?
05-184 +++$+++ 39218 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We do.
05-184 +++$+++ 39219 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean --
05-184 +++$+++ 39220 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
05-184 +++$+++ 39221 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What is the use of them if they have to follow all of the procedures required by the UCMJ? I mean, I thought that the whole object was to have a different procedure.
05-184 +++$+++ 39222 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, that's what the Government would like you to believe. I don't think that's true. The historical relationship has been that military commissions in courts-martial follow the same procedures. That's what General Crowder said when he testified in 1916, and what this Court has quoted from his testimony. It's what every military treatise says. Now, to be clear, our position is not that military commissions must follow all the rules for courts-martial. Not at all. They must require -- must follow the minimal baseline rules set in the Uniform Code of Military Justice by Congress. They can depart from the panoply of rules, the 867 pages of rules in the Manual for Courts-Martial, so long as they don't depart from the UCMJ itself. Congress has answered this question, Justice Scalia, in article 36, by saying the President does have a wide ability to depart from the rules, but he can't depart from the fundamentals of the UCMJ. And, indeed, that's what --
05-184 +++$+++ 39223 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What fundamentals, other than personal presence, are you concerned with in this case?
05-184 +++$+++ 39224 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-184 +++$+++ 39225 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or is that it?
05-184 +++$+++ 39226 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we do believe that the -- that the entire panoply of UCMJ protection --
05-184 +++$+++ 39227 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I understand --
05-184 +++$+++ 39228 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- is involved.
05-184 +++$+++ 39229 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the nature -- the appointing authority and so forth. But so far as the rights of the defendant at the proceeding --
05-184 +++$+++ 39230 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-184 +++$+++ 39231 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- just right to be present? Is there a requirement of prompt convening of the proceedings?
05-184 +++$+++ 39232 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. There's an article 10 right for speedy charges. There is also an article 67 right for independent Court of Appeals for the Armed Forces review, which is something that is not guaranteed by this commission. And so -- and, indeed, was a predicate for this Court's abstention holding in Councilman. So, we do believe that there are -- that these fundamental rights apply. And, of course, this is just all, Justice Kennedy, default rules. If the -- if the Congress wants to pass a law to exempt military commissions from article 36, that -- they are free to do so, and that will then be -- that'll then be --
05-184 +++$+++ 39233 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if you have to --
05-184 +++$+++ 39234 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a separate case --
05-184 +++$+++ 39235 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- approximately the same procedures, what's the point of having a military commission? I think that was implicit in Justice Scalia's question. So, if you go back -- Revolution, Seminoles, Modoc, Mexican War, World War II -- why have them?
05-184 +++$+++ 39236 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we had them before, because -- we had them before, because we couldn't find military court-martial jurisdiction. They were situations of absolute necessity. The reason was that the Articles of War, for one reason or another, didn't cover particular individuals. And, therefore, we needed to craft a separate procedure. But, whenever we did so, Justice Breyer, we always said that court-martial rules apply. In 1847, which is really the first instance of a military commission, because General Washington operated under statutory charges to try spying -- but in 1847, we applied court-martial rules by General Order Number 1. In the Civil War, we applied General Order Number 1 again, and it said that it would -- that we needed to apply to court-martial -- court-martial rules, because, otherwise, abuses would arise. And, essentially, the worry is one of forum shopping, that you give the President the ability to pick a forum and define the rules. And that -- and that fundamentally open-ended authority is what I believe this Court rejected in Hamdi, and it's -- and when it rejected the blank check.
05-184 +++$+++ 39237 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Katyal, you've addressed the Detainee Treatment act in its -- in its capacity as, arguably, removing jurisdiction. Might not the act also function as a retroactive approval of what the President has done?
05-184 +++$+++ 39238 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly, there's nothing in the text of the act itself -- and even -- I know this isn't relevant for you, but for other individuals on the Court -- there's nothing in the legislative history, or even the post -- even the brief filed by Senators Graham and Kyl, which suggest, in any way, that this was ratification. But suppose it were, Justice Scalia. Suppose it did ratify some sort of military commission. I don't believe that it authorized this military commission with this charge, conspiracy, in this conflict, a stateless, territoryless conflict, with these procedures, procedures that violate the UCMJ. So, it may be that they authorized something. But even that, I think, may be a bit hard, because, after all, what they did was authorize, as Justice Alito said, certain challenges to military commissions.
05-184 +++$+++ 39239 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you think, as a minimum, that they authorized a military commission?
05-184 +++$+++ 39240 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They -- I think it's perfectly -- well, it's a -- it's a -- it is a possible reading to say the DTA authorized some sort of military commission. The text doesn't say so. It is, of course, addressed to the jurisdiction of this Court, and not in any way to the -- to the -- to the -- to the underlying merits. I do think that the -- that there is a -- you know, a conceivable argument. However, the reason why I think this Court, if it did decide to reach that ultimate question, should reach it against the Government, is that that kind of back-door kind of -- you know, approval by inference has never been sufficient when it comes to authorizing military jurisdiction, in the most awesome powers of the Government, to dispense life imprisonment and death. That is, I think, a clearer statement would be required in this unique setting, because we aren't talking about, after all, minor things. We're talking about the most grave powers of our Government, the power to dispense life imprisonment and death. And I certainly don't think Congress, on the basis of a few hours of debate, intended to ratify this entire apparatus. If I could turn to question 2 and the Geneva Conventions, I'd like to start with Common Article 3 and its minimal baseline requirements that a regularly constituted court be set up, and one that dispense -- that affords the rights indispensable to civilized peoples. As Judge Williams found, below, that article does apply to Mr. Hamdan, and protects him. It's the most minimal rudimentary requirements that the United States Senate adhered to when it ratified the convention in 1955. And those requirements --
05-184 +++$+++ 39241 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It depends on what you mean by "regularly constituted." In your brief, I gather you -- what you meant is that a court that was pre-existing. It doesn't necessarily mean that. It just -- it could mean one that was set up for the occasion, but was set up for the occasion by proper procedures. Wouldn't that be a "regularly constituted court"?
05-184 +++$+++ 39242 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think the way that it has been interpreted, "regularly constituted court," is not an ad hoc court with ad hoc rules. So, that is to say, Justice Scalia, if they resuscitated --
05-184 +++$+++ 39243 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I mean, not ad hoc in that sense, "I'm creating one court for this defendant, another court for the other defendant," but setting up for the occasion, and for trying numerous defendants, a new court. I don't think that, just because it's a new court, you can say that it's not a "regularly constituted court."
05-184 +++$+++ 39244 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So long as it is, (a) independent of the executive, which is what it's been interpreted to be, and, (b) affords the rights known to civilized peoples. And here, we think this military commission strays from both of those -- both of those. It's not independent of the executive --
05-184 +++$+++ 39245 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You've mentioned -- you've mentioned that the defendant has no right to appear before the tribunal. What are the other rights recognized by all civilized people that these tribunals do not guarantee?
05-184 +++$+++ 39246 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So far, Justice Ginsburg, all that we have before -- you know, I think all that's happened is the right to be present. To look to what other rights are guaranteed by Common Article 3, you can look to Additional Protocol 1 of the Geneva Conventions, which specifies rights like appeal rights and the like. But they're the most minimal baseline rights. We're not talking about, you know, Miranda rights or something like that. We're talking about just a set of core ideas that every country on the world -- every country in the world is supposed to dispense when they create war-crimes trials. And, even that minimal standard, the Government says they don't want to apply here. And why we think this is enforceable is that Mr. Hamdan is being prosecuted in the name of the laws of war. And he has the right to invoke the Geneva Conventions defensively as a -- as a way to constrain the tribunal, to say that they can't --
05-184 +++$+++ 39247 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How do you want us to view his status? Do we accept the Government's submission that there's probable cause to believe that he was not of -- in a formal uniform, that he was not a formal combatant, but that he was aiding and abetting, or conspiring, with al Qaeda? Can we accept that, that there's probable cause for that?
05-184 +++$+++ 39248 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Kennedy, for two reasons.
05-184 +++$+++ 39249 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, in -- particularly based on the CSRT hearing?
05-184 +++$+++ 39250 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The CSRT, to my knowledge, never asked any of those --
05-184 +++$+++ 39251 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you have to --
05-184 +++$+++ 39252 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- questions about --
05-184 +++$+++ 39253 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you have to give us --
05-184 +++$+++ 39254 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- uniforms or --
05-184 +++$+++ 39255 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- a beginning point. You have to give us a beginning point.
05-184 +++$+++ 39256 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would love a beginning point. And the beginning point is an article 5 hearing, which is required by Army Regulation 190-8, in article 5 of the Geneva Conventions. The CSRT in no way suffices to do that. It didn't ask those questions about, Are -- you know, uniforms, and the like, to my knowledge. Of course, the CSRT isn't in the record, so we don't really know. The Government said, below, that it had, quote, "zero effect on this case," and didn't introduce it. But, be that as it may, suppose that the CSRT did decide that Mr. Hamdan is an enemy combatant. Justice Kennedy, most enemy combatants are prisoners of war. So, if anything, all the CSRT did was affirm Mr. Hamdan's separate claim, apart from Common Article 3, to the full protection of the Geneva Conventions. If I --
05-184 +++$+++ 39257 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And that would require a determination by a different tribunal that he was not a POW, in default of which he would be treated as a POW and be entitled to a court-martial? Is that the point?
05-184 +++$+++ 39258 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice --
05-184 +++$+++ 39259 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
05-184 +++$+++ 39260 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Souter. If I could reserve the balance of my time.
05-184 +++$+++ 39261 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, you certainly may. General Clement.
05-184 +++$+++ 39263 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: The executive branch has long exercised the authority to try enemy combatants by military commissions. That authority was part and parcel of George Washington's authority as Commander in Chief of the Revolutionary Forces, as dramatically illustrated by the case of Major Andre. And that authority was incorporated into the Constitution. Congress has repeatedly recognized and sanctioned that authority. Indeed, each time Congress has extended the jurisdiction of the court-martials, Congress was at pains to emphasize that that extension did not come in derogation of the jurisdiction of military commissions. And in its most recent action, Congress clearly did not operate as somebody who viewed the military commissions as ultra vires. They offered no immediate review, and no review at all for charges resulting in a conviction of less than 10 years. Of course, even more clearly, Congress's most recent action made it clear that the courts no longer have jurisdiction over pre-enforcement challenges. And it's to that I'd like to turn first.
05-184 +++$+++ 39264 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But let me just ask this question, Mr. Clement. What sources of law have the commissions generally enforced over the years, beginning with George Washington and so forth? Just Army regulations or American law or foreign law? What are the basic sources of law that they can enforce?
05-184 +++$+++ 39265 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, what I would say, Justice Stevens, is, they basically enforce the laws of war. At times, there are obviously United States sources that are relevant to that. Obviously, if you have a field manual or something that says specifically that certain offenses are triable under the law of war, that would be very instructive in the tribunals. In certain situations that I don't think are principally relevant here, you might also have war courts that were set up to deal with municipal offenses. But that's not what we have. And then, they would look to U.S. law.
05-184 +++$+++ 39266 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what we have here is enforcement of the laws of war.
05-184 +++$+++ 39267 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is right. And, of course, in this context, you have a controlling executive act in the form of the regulations themselves that make it clear that the executive views things like conspiracy to violate the laws of war to be actionable under the laws of war. Now --
05-184 +++$+++ 39268 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If -- just one hypothetical. Assume that the laws of war do not prohibit conspiracy. Just assume -- I know you disagree with that. Could the President, by his action, add conspiracy as a triable offense by a commission?
05-184 +++$+++ 39269 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think if you did that, Justice Stevens, it would present the very difficult question that this Court has never squarely addressed, which is, does the President have some authority to try, by military commission, beyond that which Congress has joined him in? Obviously, article 21 of the UCMJ gives Congress's sanction to any military commissions, to the extent they try crimes that are triable by the law of war. So, in that sense, I think, as long as this Court construes consistent with over 100 years of United States tradition and history, the conspiracy to commit a law -- a violation of the law of war is a war crime, then you don't have to reach that --
05-184 +++$+++ 39270 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if --
05-184 +++$+++ 39271 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- difficult issue.
05-184 +++$+++ 39272 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's easy if it is a war crime. I'm trying to wrestle with the question of, if we concluded that it were not, and just -- and I'm asking -- can the question add an additional crime that the commission could try?
05-184 +++$+++ 39273 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think he --
05-184 +++$+++ 39274 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You think he could.
05-184 +++$+++ 39275 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think we would take the position that he could, as a matter of pure constitutional power. I don't think, though -- he has not acted in this case on the theory that conspiracy is outside of the laws of war. He's acted inconsistent with 150 years of tradition.
05-184 +++$+++ 39276 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, the basic position you're asserting is that we have -- that the -- this commission intends to try a violation of the laws of war. And do the laws of war then have any application to the procedures that they have to follow?
05-184 +++$+++ 39277 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I mean, in the sense that I think that if there were -- there -- the other side is certainly able to argue, before the military commissions, that certain procedural provisions or the like are prohibited by the law of war or give them some greater entitlement. Now, as this Court has recognized in cases like Madsen, I don't think that the law of war is -- you know, extensively regulates procedure. And, indeed, as the Madsen Court recognized, Congress's approach to military commissions has been radically different than its approach to court-martials. In court-martials, they regulate every jot and tittle of the procedure. And if the UCMJ and its provisions for court-martials applies, then the defendants are going to get not just Miranda, but Miranda plus, and a whole panoply of rights. If, on the other hand, this Court follows the precedents in Madsen, it will recognize that only those nine provisions of the UCMJ that expressly reference military commissions will apply, and the rest is left to a much more common-law, war-court approach, where there's much greater flexibility.
05-184 +++$+++ 39278 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you -- what do you make of the argument that Mr. Katyal just alluded to, that if you take the -- as you do -- take the position that the commissions are operating under the laws of war, you've got to accept that one law of war here is the Geneva Convention right to a presumption of POW status unless there is a determination by a competent tribunal otherwise, with the -- among other things, the rights that that carries. I mean, how -- do you -- why not -- why don't you go from the frying pan into the fire, in effect, when you take the position that the laws of war are what the tribunal is applying?
05-184 +++$+++ 39279 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Souter, I don't think there's any frying pan effect or fire effect, precisely because what you have with respect to the claim that the Geneva Conventions applies -- okay, that claim could be brought to the military commissions, but they could adjudicate it and say that the Geneva Conventions don't apply here, for any number of reasons. And I think that this idea that there needs to be an article 5 proceeding --
05-184 +++$+++ 39280 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but you're -- are you saying that the -- that the commission will adjudicate POW status under the Geneva Convention? In other words, are you stipulating that the Geneva Convention does apply, so that the only argument left between you and Mr. Katyal would be whether the commission itself was a competent tribunal to make the determination? Is that your position?
05-184 +++$+++ 39281 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think so, Justice Souter. I mean, I think the disagreement is more fundamental than that. What I would say is, a claim could be brought in the tribunal that the Geneva Conventions apply. Now, just because the Geneva Convention does apply --
05-184 +++$+++ 39282 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, do you agree that it applies as part of the law of war?
05-184 +++$+++ 39283 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think, consistent with the position of the executive, that the Geneva Convention applies in this particular conflict.
05-184 +++$+++ 39284 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that, I guess, is the problem that I'm having. For purposes of determining the domestic authority to set up a commission, you say, the President is operating under the laws of war recognized by Congress, but for purposes of a claim to status, and, hence, the procedural rights that go with that status, you're saying the laws of war don't apply. And I don't see how you can have it both ways.
05-184 +++$+++ 39285 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We're not trying to have it both ways, Justice Souter. The fact that the Geneva Conventions are part of the law of war doesn't mean that Petitioner is entitled to any protection under those conventions. And --
05-184 +++$+++ 39286 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But he is entitled to make a claim under them to determine whether, on the merits, he is entitled. Isn't that entailed by your position?
05-184 +++$+++ 39287 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it is, Your Honor, but let me just say that that's a claim that he could have brought before the CSRTs, and that is a claim he can still bring before the military commissions.
05-184 +++$+++ 39288 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I have --
05-184 +++$+++ 39289 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Lawful --
05-184 +++$+++ 39290 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I have -- I have trouble with the argument that -- insofar as he says there is a structural invalidity to the military commission, that he brings that before the commission. The historic office of habeas is to test whether or not you are being tried by a lawful tribunal. And he says, under the Geneva Convention, as you know, that it isn't.
05-184 +++$+++ 39291 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, and we disagree with those claims. We think that most of those claims -- to the extent that he thinks some procedural requirement is provided either by the Geneva Convention, if applicable -- but we don't think it would be -- and that argument would be made; but, if by some other, sort of, principle of the law of war that a procedure is required --
05-184 +++$+++ 39292 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's not some --
05-184 +++$+++ 39293 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- he could -- he could make that argument.
05-184 +++$+++ 39294 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- procedural -- it's the structural requirement of the composition and the -- and the appointing origins of the court.
05-184 +++$+++ 39295 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again, I think he could -- he could bring that claim. I don't think it would be well taken by the -- by the commission. I don't think it's a valid claim. I also don't think, if -- there's any reason why that claim has to be brought at this stage in the procedure. We think that abstention --
05-184 +++$+++ 39296 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought --
05-184 +++$+++ 39297 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- principles --
05-184 +++$+++ 39298 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought we -- I thought we established, earlier -- somebody told me -- that, in the normal criminal suit, even if you claim that the forum is not properly constituted, that claim is not adjudicated immediately, it's adjudicated at the conclusion of the proceeding.
05-184 +++$+++ 39299 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, of course that's true. And --
05-184 +++$+++ 39300 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ We --
05-184 +++$+++ 39301 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- also --
05-184 +++$+++ 39302 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ We don't -- we don't intervene on habeas corpus when somebody says that the panel is improperly constituted. We wait until the proceeding's terminated, normally.
05-184 +++$+++ 39303 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's exactly right, Justice Scalia. And this Court made clear that it doesn't intervene --
05-184 +++$+++ 39304 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, is --
05-184 +++$+++ 39305 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- even when a U.S. --
05-184 +++$+++ 39306 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- is that -- is that true? If a group of people decides they're going to try somebody, we wait until that group of people finishes the trial before the Court -- before habeas intervenes to determine the authority of the tribunal to hold and to try?
05-184 +++$+++ 39307 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, with respect, Justice Kennedy, this isn't a "group of people." This is the President invoking an authority that he's exercised in virtually every war that we've had. It's something that was recognized in the Civil War, something in the World War II that this Court approved.
05-184 +++$+++ 39308 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I had thought that the historic function of habeas is to -- one of its functions -- is to test the jurisdiction and the legitimacy of a court.
05-184 +++$+++ 39309 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but -- habeas corpus generally doesn't give a right to a pre-enforcement challenge. And this Court, for example, in Schlesinger against Councilman --
05-184 +++$+++ 39310 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ To a forum that is prima facie properly constituted. I mean, it -- this is not a -- you know, a necktie party. Where it parades as a court, and it's been constituted as a court, we normally wait until the proceeding's completed.
05-184 +++$+++ 39311 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's exactly right, Justice Scalia. And Congress has spoken to this precise issue in the DTA. Whatever was the question about applying --
05-184 +++$+++ 39312 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, Mr. Clement --
05-184 +++$+++ 39313 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- judge made --
05-184 +++$+++ 39314 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- if you assume that the laws of war apply, and perhaps the treaty applies, isn't the issue whether this is a "group of people," on the one hand, or a "regularly constituted court," on the other?
05-184 +++$+++ 39315 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I mean, I don't really think there's any serious dispute about which it is. I mean, this is something that is --
05-184 +++$+++ 39316 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, they argue very strenuously that this is really just a "group of people" --
05-184 +++$+++ 39317 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well -- and if this Court --
05-184 +++$+++ 39318 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- because it's not a "regularly constituted court" within the meaning of the treaty.
05-184 +++$+++ 39319 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Stevens, I think that even if a court might have had jurisdiction to hear just that issue and --
05-184 +++$+++ 39320 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-184 +++$+++ 39321 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- nothing else before the DTA, Congress has now spoken, and Congress has made it clear that, whatever else is true, these military commission proceedings can proceed, and exclusive review can be done after the fact, after conviction, in the D.C. Circuit.
05-184 +++$+++ 39322 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Exclusive review of what? I don't see that the -- that the -- that the DTA preserves a right to review of the very issue that they want to raise here.
05-184 +++$+++ 39323 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think I disagree, at least --
05-184 +++$+++ 39324 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They can -- they can -- they can review their enemy combatant determination. They can review the consistency of the procedure of the court with whatever law applies. But I don't see that there is a clear reservation of right to get to the very basic question of the -- of the constitution of the court itself.
05-184 +++$+++ 39325 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, I disagree, Justice Souter. E(3) specifically preserves the claim that the commissions were not, and the procedures were not, consistent with the Constitution and laws of the United States --
05-184 +++$+++ 39326 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, you're reading --
05-184 +++$+++ 39327 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to the extent --
05-184 +++$+++ 39328 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- procedures --
05-184 +++$+++ 39329 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- they're pledgeable.
05-184 +++$+++ 39330 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- to encompass the very act constituting the court itself? Is that the Government's -- I mean, are you going to go on the record --
05-184 +++$+++ 39331 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure, if they want to come in and argue that there is a violation of article 21 of the UCMJ, or article 36 of the UCMJ, after their conviction, they are perfectly free to do that --
05-184 +++$+++ 39332 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's hard for me to --
05-184 +++$+++ 39333 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- under E(3), but --
05-184 +++$+++ 39334 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- see that with the language of this, because the language that you're talking about refers to "such standards." "Such standards and procedures" refer to the preceding paragraph, which is standards and procedures specified in the military order referred to in subparagraph (a). That military order is an order of August 31st which talks about procedures. It's not the order that sets up the commission, which is an order issued the preceding November. Rather, this language seems to mean what it says. But even if it didn't -- even if it didn't, wouldn't your reading raise a terrifically difficult constitutional question, if not this case, in cases that are pending right now, where prisoners in Guantanamo are claiming that they have not yet had the CSRT hearing, they're claiming, one or two, "We had it, and we're still here. We won, but we're still here." They're claiming, "We don't want to be sent back to Qatar." And they're claiming, some, that they were tortured. All right? Now, if we could avoid that case with your interpretation here, and avoid that constitutional question -- we can't avoid it. So, my question is, one, How is what you're arguing consistent with the language I quoted? And, two, How could it, if we accepted your interpretation, possibly avoid the most terribly difficult and important constitutional question of whether Congress can constitutionally deprive this Court of jurisdiction in habeas cases?
05-184 +++$+++ 39335 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Breyer, let me answer both pieces of that. I certainly think that such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States. There is a reference to the first military order. I believe there's also a reference to any other subsequent orders implementing that. All of that, together, implements the November 13th order. So, I would think that there is -- it is very easy to read this language to allow any challenge that is being brought here, with the possible exception of the treaty challenge.
05-184 +++$+++ 39336 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would you --
05-184 +++$+++ 39337 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
05-184 +++$+++ 39338 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would you --
05-184 +++$+++ 39339 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I think the language is capacious enough if the treaty challenge is what you thought was very important, the D.C. Circuit, at the end of the day, could decide whether or not there is a requirement that the treaty challenge be brought.
05-184 +++$+++ 39340 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ General Clement, if you can straighten me out on the piece that you read about "consistent with the Constitution and laws of the United States," I thought that it was the Government's position that these enemy combatants do not have any rights under the Constitution and laws of the United States.
05-184 +++$+++ 39341 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is true, Justice Ginsburg. And Congress, in this act, was very careful to basically write without prejudice to the answer to that question. So, we would have that argument. The other side would have their argument. What this act provides that we don't have any argument on, that was something that wasn't before this Court, say, in the Rasul decision, was the fact that the procedures that the military has promulgated are going to be enforceable under this exclusive review provision. So, there at least will be some law to apply now under this exclusive review provision.
05-184 +++$+++ 39342 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what --
05-184 +++$+++ 39343 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So, that --
05-184 +++$+++ 39344 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But how will the question, whether the laws in the United -- and Constitution -- of the United States, whether these petitioners have any claim to state under the laws and Constitution of the United States? Because as I read -- the review that's provided doesn't open up that question. It's a very narrow review that's given to the D.C. Circuit.
05-184 +++$+++ 39345 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Ginsburg, I certainly think that Petitioner will be up there arguing that Eisentrager is no longer good law, not just as a statutory matter, as a constitutional matter, and those arguments will be made. Without respect to that, certainly the arguments about article 21 and Article 36, that are very much the centerpiece of their argument here today, would also be available to the D.C. Circuit. And if there's some constitutional requirement that that review be slightly broader or slightly narrower, that seems like something that can better be adjudicated in the context of a concrete case at the point that that review is sought.
05-184 +++$+++ 39346 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there --
05-184 +++$+++ 39347 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But one thing I --
05-184 +++$+++ 39348 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there -- is there any review in this Court, following the D.C. Circuit, either the original classification or the conviction -- is there -- does this Court have any part in the scheme?
05-184 +++$+++ 39349 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Ginsburg, there would be 1254 review. Once the provision is in the court of appeals, then the case would be under -- under E(3), the review provision -- then the case would be in the court of appeals for purposes of this Court's 1254 jurisdiction.
05-184 +++$+++ 39350 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I still don't see the answer to my question, which had two parts. As to the language, (a) which is what's cross-referenced, refers to Military Commission Order Number 1, August 31, 2005, or any successor military order. The order, as I understand it, that's created the commission by the President, is an order which was November 13, 2001, not a successor to 2005. But leaving the language aside, what I'm mostly interested in, because I think your interpretation inevitably creates it, is, what is the answer to the claim that it is not constitutional for Congress, without suspending the writ of habeas corpus, to accomplish the same result by removing jurisdiction from the courts in a significant number of cases, even one?
05-184 +++$+++ 39351 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Breyer, let me answer that question in two parts, which is to say that I think that this case, and most of the cases, don't raise a serious Suspension Clause problem, for the simple reason that I think deferring review or channeling it to the court of appeals does not amount to a suspension.
05-184 +++$+++ 39352 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I listed four sets of cases that I don't see how you could possibly shoehorn into E(2) and E(3), even if you are able to shoehorn this one. And my language was designed to make you see how difficult it is.
05-184 +++$+++ 39353 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but --
05-184 +++$+++ 39354 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I listed four that I don't see how anybody could shoehorn into that.
05-184 +++$+++ 39355 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, with respect, Justice Breyer, I think that cuts both ways, because I don't think there's any particular interpretation of these provisions on the table before this Court that's going to eliminate those potential Suspension Clause issues.
05-184 +++$+++ 39356 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the whole point, it seems to me, of the argument, is, should we not consider the significance of those very questions, because, if we don't, as Justice Breyer said, at the end of the day, as you describe it, we will have to face the serious constitutional question whether Congress can, in fact, limit jurisdiction without suspending habeas corpus? The whole point is to grapple with them now, and to -- and to treat them in a way that allows for this adjudication, so that we avoid this constitutional difficulty tomorrow.
05-184 +++$+++ 39357 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Souter, first of all, I would think general principles of constitutional avoidance would say deferring the constitutional question is a good thing, not a bad thing. The one point I would --
05-184 +++$+++ 39358 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We may not have to reach the constitutional question. That's what -- that's what constitutional avoidance hopes for.
05-184 +++$+++ 39359 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. But I don't see any argument on the other side that's really a constitutional avoidance argument. Their principal argument is --
05-184 +++$+++ 39360 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, the argument --
05-184 +++$+++ 39361 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- don't apply this --
05-184 +++$+++ 39362 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the other side -- if you want the argument, the other side is, there are several hundred cases already pending. And, therefore, if we accept your interpretation, we know we have to reach the constitutional argument. If we reject your interpretation, since all these cases, several hundred of them, are already there, it might be: new ones won't be brought. But, of course, "new ones won't" might. And, therefore, what is your answer to --
05-184 +++$+++ 39363 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-184 +++$+++ 39364 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the question that this is unconstitutional -- if not here, in other places?
05-184 +++$+++ 39365 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And, Justice Breyer, what I would say is that our interpretation basically provides for pending claims exactly the way that Congress did. With respect to any future claims that might be brought, there may or may not be a constitutional question. And if I could turn to our interpretation of the DTA, it's the only one that really, I think, reads the various provisions in the statute in harmony. Now, this Court's decision in Bruner, and in a host of other cases, says that when Congress eliminates jurisdiction, pending cases fall, unless there's a savings clause. The closest thing to a savings clause in this statute, in E(1), is the provision that says "except pursuant to Section 1005." And I think that's important, because if Congress wanted to put in a savings clause of the kind that this Court seems to refer to in Bruner, and that would certainly be consistent with Senator Levin's intent, it would have been very easy. Instead of saying "except for Section 1005," they could have said "except for pending cases." The choice is important, because what does Section 1005 provide? It provides the exclusive review in E(2) and E(3). And then, H(2), in very complementary fashion, says that, just in case there's any question about it, those provisions on E(2) and E(3) apply to pending claims governed by those sections. I think every word's important. It doesn't say "pending cases," it says "pending claims." Congress understood two important things. There were no cases currently pending under E(2) and E(3), because Congress was creating E(2) and E(3). It also knew that most of the cases before the D.C. Courts had some claims that were pure challenges to the final CSRT determination and other claims. So, what H(2) says is -- H(2) says that, to the extent those cases involve claims governed by E(2) and E(3), they are preserved under E(2) and E(3); otherwise, this -- there's no savings clause that covers those claims, and their jurisdiction is removed. The --
05-184 +++$+++ 39366 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask --
05-184 +++$+++ 39367 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- retroactivity aspect -- I'm sorry.
05-184 +++$+++ 39368 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I just ask this, just to clarify? When they do take away some jurisdiction of some habeas corpus claims, do you defend that, in part, as a permissible exercise of the power to suspend the writ, or do you say it is not a suspension of the writ?
05-184 +++$+++ 39369 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think both, ultimately. I mean, I don't think --
05-184 +++$+++ 39370 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It can't be both. [Laughter.]
05-184 +++$+++ 39371 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I don't see why I can't have alternative arguments here, as for anywhere else, Justice Stevens. We think that Congress, in this action, did not do anything that triggers the suspension of the writ. But if you think that --
05-184 +++$+++ 39372 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that --
05-184 +++$+++ 39373 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- it did, I think that --
05-184 +++$+++ 39374 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that's your position, they did not suspend the writ. You're not arguing that it's a justifiable suspension of the writ.
05-184 +++$+++ 39375 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that the terms of the Suspension Clause would be satisfied here because of the exigencies of 9/11. If the question is, am I taking the position that Congress consciously thought that it was suspending the writ, then I would say no.
05-184 +++$+++ 39376 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
05-184 +++$+++ 39377 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And if you think, in order for there be to a -- to be a valid suspension, Congress has to do it consciously, then I think you could see why the arguments are mutually exclusive. My view would be that if Congress, sort of, stumbles upon a suspension of the writ, but the preconditions are satisfied, that would still be constitutionally valid. So, I think that may be the disagreement.
05-184 +++$+++ 39378 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't there a --
05-184 +++$+++ 39379 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean --
05-184 +++$+++ 39380 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't there a pretty good argument that a suspension of the writ of Congress is just about the most stupendously significant act that the Congress of the United States can take? And, therefore, we ought to be at least a little slow to accept your argument that it can be done from pure inadvertence?
05-184 +++$+++ 39381 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, a couple of things, Justice Souter. I would agree with you if what we were talking about is suspending the right as to citizens within the Continental United States, but all Congress did here is restore the law to the understanding of the law that had prevailed for 200 years. Now, this Court obviously took a different view --
05-184 +++$+++ 39382 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If we have to --
05-184 +++$+++ 39383 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in Rasul.
05-184 +++$+++ 39384 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- get to the issue, in accordance with Justice Breyer's question, whether or not the writ of habeas corpus was suspended, you are leaving us with the position of the United States that the Congress may validly suspend it inadvertently. Is that really your position?
05-184 +++$+++ 39385 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think at least if you're talking about the extension of the writ to enemy combatants --
05-184 +++$+++ 39386 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The writ is the --
05-184 +++$+++ 39387 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- held outside --
05-184 +++$+++ 39388 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The writ is the --
05-184 +++$+++ 39389 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the territory of the United States --
05-184 +++$+++ 39390 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, wait a minute. The writ is the writ.
05-184 +++$+++ 39391 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
05-184 +++$+++ 39392 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There are not two writs of habeas corpus for some cases and for other cases. The rights that -- the rights that may be asserted, the rights that may be vindicated, will vary with the circumstances, but jurisdiction over habeas corpus is jurisdiction over habeas corpus. And it seems to me that the position you have taken is that if, at the end of the day, we have to reach the question that Justice Breyer described, the answer to that question may be, "Yes, the writ of habeas corpus was suspended by inadvertence. Congress did not intend to do it." Is that really your position?
05-184 +++$+++ 39393 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Souter. There's no -- my point is not inadvertence. It's whether they have to say or incant any magic words that they are now invoking their power --
05-184 +++$+++ 39394 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ They could surely --
05-184 +++$+++ 39395 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to suspend the writ.
05-184 +++$+++ 39396 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- set forth a procedure which amounts to a suspension of the writ. And if that procedure is done in a state of insurrection or invasion, that would constitute a suspension of the writ, even though they don't say, "We are suspending the writ of habeas corpus."
05-184 +++$+++ 39397 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is my point. And there's nothing inadvertent here --
05-184 +++$+++ 39398 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it also your point when there is no insurrection or invasion?
05-184 +++$+++ 39399 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, then any effort to suspend the writ would be invalid. But this is not a case where there's any question of --
05-184 +++$+++ 39400 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Perhaps that's something that a court ought to inquire into when it gets into the question of congressional intent.
05-184 +++$+++ 39401 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think --
05-184 +++$+++ 39402 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And how specific --
05-184 +++$+++ 39403 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I disagree with that.
05-184 +++$+++ 39404 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that intent --
05-184 +++$+++ 39405 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I guess my point would --
05-184 +++$+++ 39406 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and how specific that intent must be.
05-184 +++$+++ 39407 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think I disagree with that. But there's two separate points here, is that -- one is, does Congress have to say, "We are now suspending the writ under our Suspension Clause"? And I don't think there's any call to say that they have to do that. Obviously, in cases like St. Cyr, this Court has been very clear to say, "Congress obviously can't stumble upon the Habeas Clause."
05-184 +++$+++ 39408 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Let's --
05-184 +++$+++ 39409 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that's not --
05-184 +++$+++ 39410 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's --
05-184 +++$+++ 39411 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- at issue here.
05-184 +++$+++ 39412 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's assume we do not have a magic-words requirement. Given the significance of suspending the writ of habeas corpus, should we not have a pretty clear statement requirement?
05-184 +++$+++ 39413 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. And there's no question that Congress, here, tried to amend the habeas statute. This is not like St. Cyr, where they didn't go after 2241 in terms. There's nothing subtle about this statute with respect to the clarity with which it speaks --
05-184 +++$+++ 39414 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There may be nothing --
05-184 +++$+++ 39415 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to the habeas statute.
05-184 +++$+++ 39416 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- subtle about the statute, but there is something very silent about the statute as to whether Congress understood that it was -- that it was acting under its authority to suspend the writ of habeas corpus. And, at the very least, that unclarity is manifested by the effective-date provision. H(1) doesn't have the language that it had before the amendment. Therefore, it seems to me, there would be some difficulty, if we have to get to the question, in finding a clear intent on the part of Congress to suspend the writ under its article I power.
05-184 +++$+++ 39417 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect, Justice Souter, I don't think making a retroactivity analysis or holding here is going to spare you the trouble of dealing with the Suspension Clause argument. I mean, in St. Cyr, it's worth noting that this Court addressed the specificity with which the statute applied separately from the retroactivity question. Here, to take the first question first, there's no question, this wolf comes as a wolf. Congress was going after 2241. It clearly did that. All of E(1) --
05-184 +++$+++ 39418 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It comes --
05-184 +++$+++ 39419 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- is a new subsection.
05-184 +++$+++ 39420 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It comes as a wolf under H(2), but the wolf is silent under H(1), and the wolf used to speak under H(1), and it had its teeth taken out. [Laughter.]
05-184 +++$+++ 39421 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect, Justice Souter, H(1) never spoke to the question. An earlier provision, D(1), had very different language, in an earlier provision of the statute, that spoke with greater clarity. I'll grant --
05-184 +++$+++ 39422 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that's --
05-184 +++$+++ 39423 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- you that.
05-184 +++$+++ 39424 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- gone.
05-184 +++$+++ 39425 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's gone. But just because Congress could have made it clearer doesn't mean that the Government loses here.
05-184 +++$+++ 39426 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The very fact --
05-184 +++$+++ 39427 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Senator --
05-184 +++$+++ 39428 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that Congress chose to remove the clarity of the prior provision is of no significance?
05-184 +++$+++ 39429 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not of dispositive significance, Justice Souter.
05-184 +++$+++ 39430 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't think Congress chose to do that. One house of Congress chose to do it. We don't know what the other house thought, and we don't know what the President thought.
05-184 +++$+++ 39431 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's a very fair point, Justice Scalia. But even to get at the very -- what happened here is very analogous to the legislative evolution this Court found unilluminating in Martin against Haddocks. There, the attorneys fees provision you had before it -- before you, used to be in 802 of the statute, which was expressly applicable to pending cases. Congress moved it out into its own separate section that didn't expressly apply to pending cases.
05-184 +++$+++ 39432 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What --
05-184 +++$+++ 39433 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This Court did not --
05-184 +++$+++ 39434 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Whatever may be the standard of due care for courts in reviewing acts of Congress with respect to attorneys fees, it doesn't reach the level that, it seems to me, is incumbent on us when we're talking about suspending the writ of habeas corpus.
05-184 +++$+++ 39435 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't disagree with that, Justice Souter, but there's no special habeas retroactivity law. There is a special rule, under St. Cyr, for habeas, but we amply satisfy that, because --
05-184 +++$+++ 39436 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can --
05-184 +++$+++ 39437 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- 22- --
05-184 +++$+++ 39438 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-184 +++$+++ 39439 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- this whole thing is a 2241(e) new section. So, this is all about amending habeas.
05-184 +++$+++ 39440 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you another question about the clarity with which Congress spoke? This law was proposed and enacted some weeks after this Court granted cert in this very case. It is an extraordinary act, I think, to withdraw jurisdiction from this Court in a pending case. Congress didn't say, explicitly, it was doing that. It hasn't done it, as far as I know, since McArdle. But there Congress said, "We are withdrawing jurisdiction in this very case." They didn't say that here. So, why should we assume that Congress withdraw our jurisdiction to hear this case once the case was already lodged here?
05-184 +++$+++ 39441 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the answer, Justice Ginsburg, is that, you're right, this isn't like ex parte McArdle. What made ex parte McArdle so unique is, Congress went after this Court's appellate jurisdiction, and that alone. What Congress has done here, which is not that unusual, and it's certainly happened several times since McArdle, is that the Court has modified the jurisdiction of all the courts, and that has had the effect of eliminating jurisdiction in this Court over a pending case.
05-184 +++$+++ 39442 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. --
05-184 +++$+++ 39443 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's happened any number of times. The Guagliardo cases that we cite in our brief provide one example. And as Justice Holmes made the point there, it's not a situation where you go after this Court's appellate jurisdiction, as such. There, it's a situation, as Justice Holmes put it, that, when the root is cut, the branches fall; when the district court loses jurisdiction over these cases, then this Court loses jurisdiction. But it's much less of an affront to this Court than the kind of statute that Congress passed in the McArdle situation.
05-184 +++$+++ 39444 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Clement, I, for one, have lost track of your time. I'm interested in your arguments on the -- on the legitimacy and the regularity of these commissions.
05-184 +++$+++ 39445 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And if I could talk to various aspects of that, I'm happy --
05-184 +++$+++ 39446 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can I put the --
05-184 +++$+++ 39447 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to do so.
05-184 +++$+++ 39448 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that issue in -- don't -- ignore my question, which is the same as Justice Kennedy's, if it doesn't help. I'm trying to focus this. And, in my mind, I take their argument as saying, "Look, you want to try a war crime. You want to say this is a war crimes tribunal. One, this is not a war, at least not an ordinary war. Two, it's not a war crime, because that doesn't fall under international law. And, three, it's not a war crime tribunal or commission, because no emergency, not on the battlefield, civil courts are open, there is no military commander asking for it, it's not in any of those in other respects, like past history. And if the President can do this, well, then he can set up commissions to go to Toledo, and, in Toledo, pick up an alien, and not have any trial at all, except before that special commission." Now, I've tried to summarize a whole bunch of points for you to get at, as you wish.
05-184 +++$+++ 39449 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me try to hit a couple -- [Laughter.]
05-184 +++$+++ 39450 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me try to hit a couple of highlights.
05-184 +++$+++ 39451 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'll be interested in your answer, if you can get it out. [Laughter.]
05-184 +++$+++ 39452 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me try to hit a couple of highlights. This is much more of a call for military commissions in a real war than, certainly, the use of military commissions against the Medoc Indians or any number of other instances in which the President has availed himself of this authority in the past. I think the events of 9/11 speak to the fact that this is a war where the laws of war are involved. As to whether or not the law of war encompasses the crime of conspiracy to violate the laws of war, we think that is clearly established. That is something that the United States treated as a valid war crime in the Civil War. That is something that the United States treated as a valid war crime in World War II. I would invite you, as to the former, to look at Winthrop's Treatise, page 839, note 5. He makes it very clear that those conspiracies are not just conspiracies of municipal law, what he called "of the first class," but they included the second class, which are classic war crimes. The most prominent examples are the Lincoln conspirators and a conspiracy at Andersonville Prison to deny POWs their lawful rights. Clearly, those are classic war crimes. In World War II, of course, conspiracy was also charged. And this Court saw it in the Kearing case, although it didn't reach that element of the charge. Now, I think it's very important to understand that history, because the most relevant text on this question is article 21's reference to the law of war. And as this Court was crystal clear in the Madsen case, what that reference is, is Congress's effort, when it extended the jurisdiction of the courts-martials to include more and more crimes, that it didn't want to crowd out the military jurisdiction of the military commissions just because they had concurrent jurisdiction. And this Court, in Madsen, said what Congress authorized was the jurisdiction of the military commissions as it existed in 1916, and then presumably again when it passed article 21 of the UCMJ, the jurisdiction that existed as of 1950. Well, in 1960, you could try conspiracies to violate the law of war. In 1950, you could violate conspiracies to the law of war. So, now let me try to get to the procedures that would be applicable. The argument that's made here is an extraordinary one, that article 36, when it says that military commissions can deviate from the laws of evidence, to the extent the President determines necessary, except that it must apply for the -- comply with the provisions of the UCMJ. Clearly, what that provision means is the provisions of the UCMJ that specifically impose requirements on the military commissions. And there are nine of them. And they impose some -- certain minimum rules. But to say that that provision incorporates all of the UCMJ provisions that put much higher requirements on courts-martials, is to violate this Court's Madsen decision, which clearly recognized that there were differences between court-martials and military commissions. And, although that was an act -- that was a case that addressed the articles of war, article 38 is identical to article 36(a) of the UCMJ, so that's not a difference that matters. And, if I could say, the other thing is, that just violates any normal principle of statutory construction, because then the nine express references to the military commissions are rendered utterly superfluous. Clearly, what Congress had in mind was that, "You must comply with those provisions of the UCMJ that apply specifically to the military commissions." If I could make this point clear, because I think it's helpful in reading the past cases, what made Yamashita and other of the World War II cases so difficult is that the President in that situation constituted commissions that violated even the procedural rules that the articles of war made specifically applicable to the commissions. And so, if you look, for example, at Justice Rutledge's dissent in the Yamashita case, he was at pains to emphasize that very few of the provisions of the articles of war applied to military commissions. And the difficulty was that the -- that the military, in that case, was not complying with even those provisions that specifically applied to military commissions by terms. That's not an issue here. These military commissions comply with all of the provisions of the UCMJ that are specifically addressed to military commissions. So, I just don't think there's a procedural problem here. The import of extending article 2 jurisdiction to new individuals doesn't mean that anything in Yamashita, as to this point, is really no -- is still relevant. What that does is, it takes away the argument -- to the extent that these individuals are within article 2, it takes away the argument that the President doesn't have to even comply with those provisions of the UCMJ that are expressly directed to the military commissions. But that's not an argument we're making here. The argument on the other side of this is really that when Congress specifies that nine rules apply to military commissions, and everything else applies to courts-martials, that somehow all of them have to apply to the military commissions. And as Justice Scalia's question alluded to earlier, in order to accept that argument, you really have to believe that what Congress was doing when it was carefully preserving the military -- the jurisdiction of the military commissions was simply to preserve the option of calling something that had to comply with every single statutory requirement in the court-martials. They got to label it something else. They got to label it a "military commission." Clearly, if you look at the legislative history of Article of War 15 and article 21, as they were developed in the Madsen decision and discussed in the authoritative testimony of General Crowder, that's exactly what wasn't going on. They wanted to make sure that this argument, that as we get more and more things that come within the military jurisdiction of the courts-martials, that somehow we're cutting back on the military commissions. That's not what they wanted. The next thing that may be lurking in the question is the question of, Wwat about the Geneva Conventions? And I think that, very importantly, we have arguments that we have surfaced in our briefs that the Geneva Conventions do not provide relief in these circumstances, that they do not apply, for various reasons. But the first question, at the outset, is whether this Court is going to overrule that portion of Eisentrager that basically said the Geneva Conventions are not judicially enforceable. Now, of course, this Court can say, "That was the '29 Convention, and this is the 1949 Convention." But, as the court of appeals correctly determined --
05-184 +++$+++ 39453 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And there was a footnote dicta.
05-184 +++$+++ 39454 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think it was dicta, Justice Stevens. If there's one thing I think the Eisentrager decision has, it's an awful lot of alternative holdings. And -- [Laughter.]
05-184 +++$+++ 39455 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Justice Black was concerned about that, and said, "What are you doing reaching the merits when you have, you know, said there's no jurisdiction?" But the Court, as a holding, said that the Geneva Conventions of 1929 did not apply. There aren't any material differences about 1949 Conventions. And I ask you to think about why that makes sense. Because the 1949 Geneva Conventions were being negotiated contemporaneously with this Court's decision in Eisentrager. And even if you think the rule is different today, at that point, Justice Jackson was quite correct that the idea that an enemy combatant would get access to the domestic courts of a detaining power was absolutely absurd. And so, what the -- the framers of the Geneva Convention recognized that they were dealing with a group of people that were uniquely vulnerable. So, they went to great pains to make sure there were mechanisms to enforce their rights. And so, there are various provisions for party-to-party enforcement. There are various provisions for getting the protecting powers, which is now a role basically taken over by the ICRC, to get access to the detainees and to provide other mediating effects. So, what you have is a treaty that's really written against the backdrop, that of course these people aren't going to be able to get to the domestic courts of their detaining -- the detaining power. If you look at the treaty, and read it as a whole, I think it's almost impossible to read it as applying judicially enforceable rights in the domestic courts. The constant --
05-184 +++$+++ 39456 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does it -- does it -- does it define the contours, along with other relevant international sources, of the meaning of the statutory words "laws of war." He's being charged with a violation of the laws of war in both statutes, like -- what is it? -- 2240 -- 2441, in Quirin. To get the meaning of that term, courts looked to other law.
05-184 +++$+++ 39457 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And, in particular, why isn't he part of the Common Article 3 under the Geneva Convention, as Judge Williams found? That's part of the same question.
05-184 +++$+++ 39458 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Judge Williams found that, you know, Common Article 3 was applicable here. I don't know why that the Common Article 3, and nothing else would be judicially enforceable. And I don't read his opinion as saying otherwise. I think he still took the view that the entirety of the Geneva Conventions were not judicially enforceable. Now, I take it that the thrust of the question, though, is, don't these Geneva Conventions, even if they're not applicable for one reason or another, don't they form the background of some sort of customary international law that influences what -- how we should interpret the word "law of war" in the statute? And I would say, at a minimum, if there is some role for customary international law here, it has to, consistently with The Paquete Habana case, take into account and give due weight to a controlling executive act. Here, the President has determined, for example, that conspiracy is an actionable violation of the law of war that can be tried in front of these commissions. He's made that clear. He's also made clear that these procedures are sufficient and supply the rights. And so, I think that has to take -- be taken into account into the analysis. I think, also, since article 21 is the most logical place you would -- you would look to any of this as the law of war, I think it's important to understand that I would read that as incorporating some question about what kind of crimes can be brought in this jurisdiction.
05-184 +++$+++ 39459 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it the President, and not Congress, defining the content of the law, the criminal law, under which a person will be tried? Isn't there a "separation of powers" problem there?
05-184 +++$+++ 39460 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I sure hope not, Justice Breyer, because that's been the tradition for over 200 years. And article 21 itself makes this clear, because what does it say can be tried by military commission? It says anything that's made a violation of statute or law of war.
05-184 +++$+++ 39461 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I don't --
05-184 +++$+++ 39462 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So --
05-184 +++$+++ 39463 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- think, Mr. Clement, the 200 years have approved of his adding additional crimes under the law of war. I mean, he has never -- I don't think we have ever held that the President can make something a crime which was not already a crime under the law of war.
05-184 +++$+++ 39464 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that may be true, Justice Stevens --
05-184 +++$+++ 39465 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-184 +++$+++ 39466 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- certainly as to the article --
05-184 +++$+++ 39467 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And one --
05-184 +++$+++ 39468 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- 21 point.
05-184 +++$+++ 39469 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- of the issues is whether he's done that here --
05-184 +++$+++ 39470 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
05-184 +++$+++ 39471 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I think.
05-184 +++$+++ 39472 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But there's no innovation in trying conspiracy as a violation of the law of war.
05-184 +++$+++ 39473 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you're right on that, you're right on the ultimate question, too.
05-184 +++$+++ 39474 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I hope so, because there's really no question that conspiracy has been charged. And, like you said, I would encourage you to look at footnote 5 on page 839 of the Winthrop Treatise; and this Quirin case had, also, that charge brought before it. Colepaugh against Looney, which is a Tenth Circuit case from World War II, involved the charge of conspiracy. Now, they're going to come up here and tell you, "Well, but that wasn't -- you know, in Colepaugh and Quirin, that wasn't the one that the Court settled on." But that doesn't dispute the fact that that is a crime that has traditionally been charged as a violation of the law of war.
05-184 +++$+++ 39475 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your time is -- why isn't Hamdam a uniquely vulnerable individual that -- you used the phrase "uniquely vulnerable individuals" were involved in another case, but not here. Why not here?
05-184 +++$+++ 39476 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, he's -- I mean, I -- I'm not saying that he isn't somebody who is protected by the laws of war, the customary laws of war. I think that he is protected by those. I don't think he's protected by the Geneva Conventions, but that's largely because he chose not to comply with the basic laws of war. He's obviously --
05-184 +++$+++ 39477 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought -- I thought -- I thought you said all prisoners of war were uniquely vulnerable -- I thought that was the point you were making --
05-184 +++$+++ 39478 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is the point --
05-184 +++$+++ 39479 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- and had -- needed --
05-184 +++$+++ 39480 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that I'm making --
05-184 +++$+++ 39481 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- needed protection of the -- of the supervising powers, or whatever they're called.
05-184 +++$+++ 39482 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, but not the domestic courts of the detaining power. And if he's any different than a usual prisoner of war, it's because he's disentitled themselves to some protections by what has been determined by the CSRT protections. Let me just address, if I could, the idea that having provided him with CSRT, we now have to provide him with an article 5 hearing. The CSRT provisions provide all of the protections, and then some, that were normally provided in an article 5 hearing. They were focused on the question that is relevant in this dispute, which is whether or not somebody is an innocent civilian or an unlawful enemy combatant. Nobody has a claim here that they were part of the uniformed al Qaeda division that complied with all of the laws of war, such that they are entitled to POW status. The POW unlawful enemy combatant line is not one that really needs to be policed in this conflict. The serious concern -- and it was his claim when Petitioner walked into Federal Court in Washington -- he said, "I am not an enemy combatant. I did not take up arms against the United States." That's the claim that he brought to the CSRT, the CSRT rejected. For these purposes, at this stage in the litigation, that ought to be enough to allow the proceeding to go forward in front of the military commission. One of the defenses in the military commissions is lawful combatancy immunity. He can make the argument that he wants to make in front of the commissions. If the commission rejects the argument, then there will be review of that decision in the court of appeals on a concrete record. This Court can then address that under 1254. The use of military commissions to try enemy combatants has been part and parcel of the war power for 200 years. Congress recognized it in 1916 in the Articles of War, then again, after World War II, in the UCMJ. This Court recognized it in a host of cases, not just Quirin, but Yamashita, Eisentrager, and, most clearly, in Madsen. Since that is such an important component of the law of war, something that has been part and parcel of that power from Major Andre's capture to today, there is no reason for this Court to depart from that tradition. Thank you.
05-184 +++$+++ 39483 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Clement. Mr. Katyal.
05-184 +++$+++ 39485 +++$+++ FALSE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is a foundational role of this Court, as Justice Kennedy says, to test the lawfulness of tribunals, particularly executive detention. And in the pretrial area, that's the historic role of this Court from Bereford to Quirin. This claim is -- Mr. Hamdan's claim is primarily a jurisdictional one, as both courts below found when they recognized his ability to bring this pretrial challenge, because he is not an offender under the laws of war until he obtains his article 5 hearing, because the charge doesn't state a violation of the laws of war, which is, itself, jurisdictional, and because it doesn't follow the procedures of the laws of war, which this Court, in Yamashita, in pages 5, and, in the dissent, at page 72, recognized as jurisdictional.
05-184 +++$+++ 39486 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't want to --
05-184 +++$+++ 39487 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Now, that was --
05-184 +++$+++ 39488 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't want to take up from your time, but have you read the footnote that the -- Mr. Clement relies on very heavily?
05-184 +++$+++ 39489 +++$+++ TRUE +++$+++ MR. KATYAL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect to conspiracy? Yes, I have. And I do believe the text says that they're referring to domestic offenses. It's certainly the case that conspiracy has been tried as a violation of the laws of war at some point in the Civil War. But that has been entirely eclipsed by the modern laws of war, which have rejected it everywhere. And if you adopt the Government's reading, Justice Stevens, that the laws of war are frozen into time in 1916, then I believe there goes the Government's case entirely, because the thrust of the Government's case is the laws of war have to adapt to this stateless, territoryless organization known as al Qaeda. If we're playing by 1916 rules, there is no way that this commission would have been accepted in 1916. Now, all of those jurisdictional pretrial challenges were accepted by the courts below when the full panoply of DTA rights -- when the full panoply of rights existed. Now the DTA certainly circumscribes the scope. We don't know whether question one very clearly is able to be raised after the DTA's enactment. We certainly -- question two, as the Solicitor General has said, is not raisable. We don't know when it can be raised, because the President can block final review for all time under the DTA. He has the keys to the Federal courthouse. And if you defer to this system and give the President the ability to launch all of these tribunals for 75 individuals with these charges, with these procedures, you will be countenancing a huge expansion of military jurisdiction. Conspiracy is one of the few offenses, Justices, that has now been rejected by the laws of war internationally in tribunal after tribunal. It's certainly never been approved by a Federal Court. And, indeed, it has been rejected. In Colepaugh, for example, no challenge to conspiracy was raised. The Government's argument, in the end, it seems to me, is one that this Court rejected in Loving, because it depends, as its predicate, on the idea that the President has ultimate flexibility with respect to these military commissions, except for the nine provisions in the UCMJ which govern translators and deposition testimony. It is inconceivable that the UCMJ, when enacted, intended to regulate military commissions with only that bare bones to it. Indeed, General Crowder said, "Military commissions and courts-martial follow the same procedures." Finally, Justices, we'd just point out that the predicate of abstention is not met here. This is not a ordinary criminal trial applying lawful ordinary procedures. This is an ad hoc trial in which the procedures are all defined with the President. He says the laws of war do not apply when we're talking about protecting this vulnerable individual at Guantanamo. But then he says they do apply and permit him to charge Mr. Hamdan with the one offense which is rejected entirely at international law. It was a great American patriot, Thomas Paine, who warned, "He who -- that would make his own liberty secure must guard even his enemy from oppression, for if he violates that duty, he establishes a precedent that will reach unto himself." That's what we're asking you to do here, just enforce the lawful uses of military commissions and the historic role of this Court. Thank you.
05-184 +++$+++ 39490 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. The case is submitted.
05-200 +++$+++ 39495 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument next in 05-200, Empire Healthchoice Assurance v. McVeigh. Mr. Shelley.
05-200 +++$+++ 39497 +++$+++ FALSE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Empire's complaint in this case raises a Federal claim. As a result, it arises under Federal law. This case involves fringe benefits for Federal employees provided by the Federal Government. The case involves enforcement of a Federal Government contract. The same contract is rooted in a Federal statute, and the money collected here will go to the Federal Treasury. Nonetheless, the court of appeals held that this case belonged in State court to be governed by State law. The court of appeals should be reversed. In particular, this case concerns the reimbursement of health benefits by a Federal employee to his Federal Government health benefit plan, which is known as the service benefit plan. That plan is governed by the Federal Employees Health Benefits Act, FEHBA, and is established through a Federal Government contract. In this case, Empire paid approximately $157,000 in benefits for certain injuries suffered by Joseph McVeigh, but the plan conditioned the payment of those benefits on reimbursement in the event that a recovery was made from a third party. Those terms are part of the Government contract, the reimbursement terms. Thereafter --
05-200 +++$+++ 39498 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can you go back and because the -- the parties seem to have different views about it? I think you said it was required by OPM to have this reimbursement term, and the other side said that there was no requirement from the Government agency that you include the reimbursement term.
05-200 +++$+++ 39499 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under the statute -- Justice Ginsburg, under the statute, the Office of Personnel Management is charged with selecting the benefits and exclusions for this particular program and for this particular plan. The statutory section is 8902(d). And those terms are -- OPM has the final authority over those terms and those terms are placed in a statement of benefits which the -- which this statute also says shall become part of the contract and are attached and incorporated into the contract. So the final authority over the benefits and the exclusions --
05-200 +++$+++ 39500 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that -- all that says is that OPM looked at these terms and it thought they were okay. It's not -- it doesn't show that OPM required these -- this as a condition for Empire to serve as the insurer.
05-200 +++$+++ 39501 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's -- our obligations are through the contract, and our only obligations here are the ones in the contract. And that contract -- that provision is in the contract. And as a result of that, we were -- we were mandated to enforce that provision. If the Government wanted that provision out, it had the final authority to take it out, and it would only have been included if, as a matter of authorization, OPM wanted it in there.
05-200 +++$+++ 39502 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that's different from putting it in. I mean, you want to change what you -- what you allege, that -- that it's mandated by the Government to simply the Government, although it had authority to eliminate it, did not do so? If -- you know, that's a different -- different assertion.
05-200 +++$+++ 39503 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- I think it makes no difference. The fact of the reality is that it's in the contract.
05-200 +++$+++ 39504 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'll assume it's the latter then.
05-200 +++$+++ 39505 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The reality is that the -- these reimbursement terms are in all the contracts essentially of the FEHBA carriers, and as a result, I think it can be assumed that it's the policy of the Government that they should be in here. And the result of them is that they save the Government money. So it does make good Government policy to have these provisions in -- in the contracts to begin with.
05-200 +++$+++ 39506 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But this is a fairly indirect way of establishing a Federal cause of action. I mean, it -- it's a preemption provision. Why isn't it reasonable to assume Congress thought there was no need for a Federal cause of action? Because it's a contract action. State courts handle those every day, and they assumed they'd be handled by State court.
05-200 +++$+++ 39507 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the Court's decision in Jackson Transit sets up the framework for that, and that is, that Congress did assume there would be a contract cause of action, but --
05-200 +++$+++ 39508 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I noticed you referred in your brief to the Jackson Transit line of authority. Do you know how many times Jackson Transit has been cited in the last 20 years by this Court?
05-200 +++$+++ 39509 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It has not been applied again since then, but we would say it's settled law as a result.
05-200 +++$+++ 39510 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's not been cited. I think it's never been applied and it's not been cited once in 20 years. So what's the line of authority?
05-200 +++$+++ 39511 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's four or five cases that Jackson Transit was built on, for instance, the Machinists case v. Central Airlines, which came out of the 1960's. In those cases, for instance, they -- the principle is simple and it's a strong one, and that is that Congress assumes that a -- when it calls for the creation of a -- a contract in a statute, that it will be enforceable just as with ordinary contracts.
05-200 +++$+++ 39512 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Those cases came from the days when we were also quite willing to imply Federal causes of action in statutes that had nothing to do with the Government, you know, 10b-5 and things of that sort. I thought we had put all of that behind us. You want us to go back to that bygone age.
05-200 +++$+++ 39513 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't think so, Justice Scalia. The -- the Court in Jackson Transit specifically differentiated between Congress assuming there was a contract cause of action whenever it calls for the creation of a contract and separately implying a cause of action. That's different because that -- that has to -- in doing that, the Court has to create a cause of action in the first place, but Congress is assumed to want contracts to be enforceable when it calls for the creation of the contracts in a Federal statute.
05-200 +++$+++ 39514 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We're not talking about the contract between you and the Federal Government. We're talking about some other agreement between you and an individual employee.
05-200 +++$+++ 39515 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. We're talking about the contract between us and the Government because it's that contract that contains the reimbursement terms, and when the enrollee enrolls in the Federal program, he or she takes on the obligation of complying with all the terms of the Government contract.
05-200 +++$+++ 39516 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that may give rise to a separate agreement, a related agreement, if you will, between you and the employee. But it's not -- it's not a -- you're not the Government. The employee is not the Government, at least not for these purposes. So why is it a Government contract?
05-200 +++$+++ 39517 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the -- the underlying terms are part of the Government contract and --
05-200 +++$+++ 39518 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So if the Government says -- Congress says, we think OPM should have a recreation center for its employees and it should have all these things, and then OPM enters into a contract with a company that runs recreation centers -- okay -- that's a contract with the Government. And then that entity enters into a contract with somebody else to supply the basketball hoops. Would you say that that last contract is a Government contract?
05-200 +++$+++ 39519 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The subcontract?
05-200 +++$+++ 39520 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
05-200 +++$+++ 39521 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would not say it's a contract with the Government, and that's not our situation.
05-200 +++$+++ 39522 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even if the provision -- even if at some point Congress said, and besides, you know, the basketball hoops should be -- you know, made in America as opposed to somewhere else and, you know, specifies the terms of the subcontract.
05-200 +++$+++ 39523 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's not a Government contract. The Government contract is the contract between the party with the Government, and that's what we have here and that's what we're seeking to enforce. But I would point out that cases like Jackson Transit and the Central Airlines case -- the case -- the party suing wasn't really suing on the contract even. It was -- the case emanated from the contract, and as a result, the Court, nonetheless, held it arose under Federal -- Federal law. In this case, the -- the case is directly on the contract itself. So it's a much closer connection to the Government terms. Under the --
05-200 +++$+++ 39524 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But there's nothing in the statute that speaks about a Federal forum. And if you look at this entire picture, you're seeking reimbursement, and you're seeking reimbursement based on a tort recovery. And why wouldn't the most sensible, the most natural thing for a legislature, if they thought about it, be to say, well, that claim for reimbursement ought to come in on the coattails of the tort claim? You don't need to make a whole separate Federal case out -- out of it. Why would Congress want these claims to be subject to a separate Federal case?
05-200 +++$+++ 39525 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, every other type of claim under this program is in Federal court already, denials of benefits cases, disputes between the carrier and the United States. Only a sliver of lawsuits, these reimbursement suits, are -- are left. And it would be anomalous to -- for Congress to have wanted those to be in State court. But even aside from that, a Federal forum offers the --
05-200 +++$+++ 39526 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it's because there's an anterior lawsuit that everything rides on that State court suit. There wouldn't be any recovery from which you could claim reimbursement were it not for that State court lawsuit.
05-200 +++$+++ 39527 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The reality is that a straightforward Federal lawsuit and a Federal rule that these -- these reimbursement provisions are straightforwardly enforceable through Federal claims means that they will -- the reimbursement will be collected efficiently and correctly.
05-200 +++$+++ 39528 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Could you -- following up on Justice Ginsburg's question, could you intervene asserting rights of subrogation in the underlying tort suit that your covered beneficiary brought in State court?
05-200 +++$+++ 39529 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Conceivably, but the Federal question statute allows us to raise Federal claims in Federal court, and through it, Congress has determined that if the case turns on Federal law, that the Federal forum is an appropriate forum for that.
05-200 +++$+++ 39530 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, wouldn't it be more efficient for you to intervene in the pending State suit and get it all resolved at once rather than waiting until your beneficiary gets a recovery and then starting a whole other Federal suit over this somewhat subsidiary subrogation point?
05-200 +++$+++ 39531 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, because in many States -- many States don't allow reimbursement altogether. They have anti-subrogation policies as well, and the reality is, is that what --
05-200 +++$+++ 39532 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, at that point, you'd be able to assert your argument under the Federal preemption provision that says, in my view somewhat surprisingly, that these contract terms preempt State law.
05-200 +++$+++ 39533 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and we've fought many battles on those fronts in the State courts. And the reality is that the Federal forum with its familiarity with Federal law, its solicitude towards Federal law is the appropriate forum in these cases, more so than the State court. And what may seem like an efficient --
05-200 +++$+++ 39534 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You don't have any such problem here. There's no conflict between the New York law -- you certainly could have gone into that lawsuit and --
05-200 +++$+++ 39535 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, no conflict is required, for instance, under the Jackson Transit analysis. The analysis is, is this a pervasively Federal regime to start with, and if so, it's a Federal claim whether there's a conflict or not. And so a conflict is really unnecessary. But the other point is that with the --
05-200 +++$+++ 39536 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I could see if this were -- what we were talking about everything is -- the insurance of a Federal employee and questions about coverage, questions about benefits, all of that between the employee and the carrier. But this comes up because we have a third party who enters the picture in an estate law claim. So I don't think you can just say, well, everything is -- this whole thing is -- is all a Federal contract.
05-200 +++$+++ 39537 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, there is no -- there's no requirement in the preemption provision either for a conflict. I mean, Congress went back to the -- to the drafting table in 1998 and said, we want State law to be preempted whether or not there's a conflict in this particular situation. So --
05-200 +++$+++ 39538 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That would have been a good time for them to say we want a Federal -- Federal court jurisdiction over these causes of actions if that's what they had in mind, but they didn't do that.
05-200 +++$+++ 39539 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first of all, there have -- there was no dispute whatsoever that these types of cases could be brought in Federal court in 1998.
05-200 +++$+++ 39540 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, there sure was. For those who like to look at the legislative history, the House report said that -- again, it's very curious language. It said, this change will help strengthen the case in favor of Federal jurisdiction, or something like that.
05-200 +++$+++ 39541 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Mr. Chief Justice --
05-200 +++$+++ 39542 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, since when is Congress trying to strengthen -- they either decide it's going to be Federal jurisdiction or not. They don't try to make arguments.
05-200 +++$+++ 39543 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There had been no dispute about whether reimbursement claims could be brought in Federal court. The courts -- the courts were in agreement on that. What there was a dispute about was whether denials of benefits cases could be removed from State court to Federal court. And what Congress did was it followed the ERISA model and changed the preemption provision because the preemption provision was what had been giving the courts problems about the removal issue. And so Congress did, I think, what the courts told it to do, was get rid of some language in the preemption provision that is hampering Federal jurisdiction. Congress did that and created Federal jurisdiction. Nonetheless, now we come up with a new dispute that had never been a problem before --
05-200 +++$+++ 39544 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's sort of queer terminology anyway. When Congress has already decided that there should be Federal jurisdiction. It would seem very strange for Congress to say this strengthens the case for Federal -- what do you mean the case for Federal jurisdiction?
05-200 +++$+++ 39545 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think --
05-200 +++$+++ 39546 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We prescribe Federal jurisdiction. I -- you know, I'm not a fan of legislative history, but I -- I don't find that particular piece very much against you. In fact, it may be just -- just the opposite. It may be -- it's lawyers' language, you know. We don't know whether there's Federal jurisdiction or not, but this will make a better case for -- you know, for the other side.
05-200 +++$+++ 39547 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think Congress enacted the statute in 1995 against the backdrop of -- of settled law that Federal programs are typically litigated in Federal court. What happened, though, was that the States started -- started enacting provisions in the area and Congress went to work in 1978 and enacted a preemption provision to reemphasize what I -- what it believed in the first instance. Then in 1998, after courts continued even to interpret the preemption provision narrowly, they went back to the -- they went back to the -- to the statute and they strengthened it even further to make it absolutely clear. So I think what we have is a --
05-200 +++$+++ 39548 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought that the -- the purpose of the preemption provision in this statute was related to benefits and coverage. Some States have mandatory coverage for this or that. The case that was mentioned is the chiropractor. And the -- in the Federal scheme, the Federal administrator didn't want to be saddled with whatever the particular packages that the States had. So the coverage and the benefits -- those were to be determined on the Federal level, and you weren't supposed to be saddled with whatever the State thought would be good to have in the plan.
05-200 +++$+++ 39549 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the provision doesn't read simply that State laws defining benefits shall be preempted. It reads State laws relating to the extent of coverage or the nature or provision of coverage, benefits, or payments with respect to benefits. And so it covers a broad array of things other than simply mandated benefit statutes.
05-200 +++$+++ 39550 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is --
05-200 +++$+++ 39551 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but -- but -- I'm sorry.
05-200 +++$+++ 39552 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is there any comparable situation where a contract between two private parties has the effect of preempting State law? Suppose all you have to do in your service benefit plan is agree with your beneficiaries that in the case of subrogation, you're entitled to, you know, 10 times actual damages, if they don't pay up right away or something like that. And -- and that would override all sorts of State law. You could specify you're entitled to interest at 20 percent and that would preempt State usury laws?
05-200 +++$+++ 39553 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I believe there are many other statutes in the benefits area involving the Federal Government from long-term care to miliary benefits which have a similar preemption provision. I think it --
05-200 +++$+++ 39554 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's a sloppy way to put it, don't you think? Maybe what Congress should have said, although Congress doesn't always speak precisely, is that any -- any State law which contradicts a provision of the contract on these particular subjects is preempted.
05-200 +++$+++ 39555 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It said that originally, and the courts interpreted that so narrowly that Congress took that out. Took the contradiction part out. There was an inconsistency requirement in the statute. Congress took it out specifically to knock out even supplementary or --
05-200 +++$+++ 39556 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay, I'll put it differently. All State laws relating to subjects that are covered in the contract are preempted.
05-200 +++$+++ 39557 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I would say that that's -- that Congress, when it enacted the provision, I think intended something on those lines. The provision is, in fact, the result of several different amendments and it reads the way it does as a result of the amendments. And if I could reserve the remainder of my time for rebuttal, Mr. Chief Justice.
05-200 +++$+++ 39558 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, counsel. Mr. Srinivasan.
05-200 +++$+++ 39560 +++$+++ FALSE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: An action to enforce the terms of a FEHBA contract is a Federal action because the rights and duties in FEHBA contracts are Federal in nature under the Jackson Transit inquiry. The Federal nature of the rights and duties comes both from the context in which FEHBA operates and also from the terms of the express preemption provision. Briefly --
05-200 +++$+++ 39561 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't there -- isn't that a big leap? I mean, even if we agree with you that there are Federal rights and duties, is it irrational for Congress to determine, since they arise in a normal breach of contract action, we're going to assume they're going to be brought in State court? The cause of action is for breach of contract that every State recognizes.
05-200 +++$+++ 39562 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I guess that seems like an unlikely outcome, given that under the express terms of the preemption provision, it's clear that the contract terms are matters of Federal law in the sense that Federal law dictates that they govern over State law. And if we know that Federal law provides a substantive rule of decision with respect to the construction of the contract, it seems anomalous to impute to Congress the intention that those Federal rights and duties should be litigated solely in a State court action.
05-200 +++$+++ 39563 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But wouldn't it have been the easiest thing for Congress to say, as it does countless times when it creates Federal rights, that Federal courts have jurisdiction to enforce these rights? And they didn't do that here.
05-200 +++$+++ 39564 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they didn't do that, but I think as Jackson Transit explains, it's -- it's different in the contract context than in your standard implied cause of action context for the following reason. When Congress specifically contemplates the construction of contracts, as it did in FEHBA, it clearly contemplates that those contracts will be enforceable somewhere. So there is a cause of action for breach. The only question is whether that cause of action sounds in State law or instead in Federal law. And on that question, when Congress prescribes, as it did in the preemption provision, that the rights and duties are matters of Federal law, it seems most likely that Congress intended there would be a Federal cause of action that could be brought in Federal court to litigate those terms. And that's what Congress did in the terms of the preemption provision. That --
05-200 +++$+++ 39565 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What -- you -- you might follow along with that perfectly well if you're talking about the beneficiary, the Federal employee, saying I'm entitled to a certain coverage or I'm entitled to certain benefits. You would expect that suit to be in Federal court. But why would you expect what piece of the tort recovery the carrier will get to be in Federal court?
05-200 +++$+++ 39566 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this is part and parcel of benefits, Justice Ginsburg, because you're right that when -- and when an employee asks for benefits, you'd expect that issue to be litigated in Federal court. But this is a condition on benefits. That's how the reimbursement obligation is framed in the contract. It's that if you get benefits from the Federal Government and then later on get the same benefits from a third party, a condition on the Government benefits is at that point you have to reimburse the Federal Treasury. So I don't think that one can easily draw a distinction between benefits qua benefits and benefits that are at -- at one point issued to the employee but then are subsequently returned pursuant to the terms of the reimbursement obligation.
05-200 +++$+++ 39567 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose there's a dispute in the -- in the lawsuit about whether a particular benefit to which one - the party was entitled under the contract has been waived. Okay? That's the issue. Is that issue to be decided by Federal law or by State law?
05-200 +++$+++ 39568 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, do you mean in an underlying tort action or --
05-200 +++$+++ 39569 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
05-200 +++$+++ 39570 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. In the underlying tort action, that generally would be governed by State law. Now, on the question of whether a benefit is something that the individual is entitled to or, conversely, whether the benefit is obligated to -- whether the individual is obligated to --
05-200 +++$+++ 39571 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, I'm not talking about the -- I'm talking about the claim, the claim made by an individual against the carrier. And -- and it is asserted that this claim should have been made sooner. It has been waived by not having been brought forward sooner. Okay? That's -- that's the hypothetical. Do -- do you think that that -- that is governed by Federal law?
05-200 +++$+++ 39572 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure --
05-200 +++$+++ 39573 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Whether waiver occurred or not.
05-200 +++$+++ 39574 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I think that -- that when it's a claim for benefits, it probably would be governed by Federal law.
05-200 +++$+++ 39575 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why?
05-200 +++$+++ 39576 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But even --
05-200 +++$+++ 39577 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, the text -- the text only -- only says, shall -- which relate to the nature, provision, or extent of coverage or benefits. Extent of coverage or benefits. I don't know that that relates to any of them. It relates to whether the benefit that was covered has been waived.
05-200 +++$+++ 39578 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it depends on whether the contract speaks to the issue. Now, insofar as the contract --
05-200 +++$+++ 39579 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
05-200 +++$+++ 39580 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- insofar --
05-200 +++$+++ 39581 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It doesn't speak to it.
05-200 +++$+++ 39582 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- insofar as the contract doesn't speak to an issue, there obviously would be a stronger argument for the operation of State law. But that's not --
05-200 +++$+++ 39583 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay. So you're not saying that -- that Federal law is -- is pervasive here, that it covers the -- the entire -- the entire suit between the claimant and the insurer.
05-200 +++$+++ 39584 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not necessarily.
05-200 +++$+++ 39585 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay. In that respect, doesn't it differ from ERISA?
05-200 +++$+++ 39586 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it -- it differs from ERISA in the following sense, that in ERISA, ERISA sets forth a cause of action. And so the Court has concluded that that cause of action is exclusive of State court causes of action. And we're not taking that position here. We -- we don't say that the Federal action is the only action -- excuse me -- that's available. State court actions for breach of contract might also be available. But --
05-200 +++$+++ 39587 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you're gong to make a lot of trouble for us. We're going to have to sort out which of these things are covered by State law and which aren't.
05-200 +++$+++ 39588 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't know that it's going to be a -- a terribly difficult inquiry because of the precision with which the terms of the preemption provision speaks. And it's certainly not difficult with respect to the reimbursement obligation because it fits --
05-200 +++$+++ 39589 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, ERISA has a very clear preemption provision too, and that's generated a fair amount of work for us.
05-200 +++$+++ 39590 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It has, but in terms of -- in terms of the relate-to requirement, that's true, and I think the Court would apply exactly the same standards that it applies in ERISA.
05-200 +++$+++ 39591 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think there's any constitutional difficulty with the preemption provision in this statute?
05-200 +++$+++ 39592 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't. I think --
05-200 +++$+++ 39593 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You can make a contract preempt State law. Is there any precedent for that?
05-200 +++$+++ 39594 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think Boyle somewhat stands for the same proposition in this --
05-200 +++$+++ 39595 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You don't have Boyle for that.
05-200 +++$+++ 39596 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry?
05-200 +++$+++ 39597 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I didn't think Boyle went that far.
05-200 +++$+++ 39598 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Boyle at least establishes that the terms of a contract preempted State law because it was a procurement contract and the idea was that by complying with the terms of the procurement contract, the contractor asserted essentially a federally compelled defense to the State court action.
05-200 +++$+++ 39599 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I thought -- I thought it defined a duty. I -- I agree with Justice Stevens. I -- I've never seen it -- are there other statutes where the contracting parties can decide whether or not they're going to oust Federal law -- or State law?
05-200 +++$+++ 39600 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know that there are other statutes, but what this particular -- particular provision indicates is that Congress thought it was very important that FEHBA contracts would control over State law, and I don't think there's any constitutional limitation on Congress' ability to do that. After all --
05-200 +++$+++ 39601 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I -- I wrote Boyle and what I thought I was saying was that the common -- (Laughter.)
05-200 +++$+++ 39602 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- was that the common law, Federal common law precluded, preempted any State law which contradicted this contract. Now, you can -- you can put that in a sloppy fashion by saying that the contract preempted State law, but it wasn't --
05-200 +++$+++ 39603 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
05-200 +++$+++ 39604 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that we thought it was the contract that preempted State law. It was Federal common law which said that the contract -- that any provision in State law which contradicts the contract is preempted by Federal common law. And you can read this statute the same way. It's a sloppy way of putting it, but what it means is Federal law preempts any State provision that is contrary to a provision of the contract --
05-200 +++$+++ 39605 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that --
05-200 +++$+++ 39606 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- which -- which is certainly constitutional.
05-200 +++$+++ 39607 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely that's constitutional, and that's -- that's what I mean to be saying because it's Federal law --
05-200 +++$+++ 39608 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Congress isn't always precise, is it?
05-200 +++$+++ 39609 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, they're not.
05-200 +++$+++ 39610 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is there any significant variation among the different carriers as to the terms of the contracts they use in different places for Federal employees?
05-200 +++$+++ 39611 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ On which particular --
05-200 +++$+++ 39612 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Under this program.
05-200 +++$+++ 39613 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's -- there's variation, sure. Now, on -- on --
05-200 +++$+++ 39614 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is there a lot or a little?
05-200 +++$+++ 39615 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there's -- it depends on what you're talking about.
05-200 +++$+++ 39616 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What I'm thinking of is a statute. The statute has fairly close detail as to what the contracts must contain. It gives authority to OMB or -- to write regs. And they have written regs that have very detailed provisions as to what the contracts must contain, and then there is the contract with the individual carried -- when the -- when the carrier is implementing these rules, regulations, and statutes.
05-200 +++$+++ 39617 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-200 +++$+++ 39618 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I'm trying to figure out is --
05-200 +++$+++ 39619 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The statute doesn't give a great deal of specific --
05-200 +++$+++ 39620 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It gives some.
05-200 +++$+++ 39621 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- direction on the terminology.
05-200 +++$+++ 39622 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It gives some.
05-200 +++$+++ 39623 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It gives some, but it's only bare bones, Justice Breyer.
05-200 +++$+++ 39624 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, I know, but I'm trying --
05-200 +++$+++ 39625 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I think that's important because what -- what Congress has done is essentially to leave it to OPM to negotiate the terms of these contracts.
05-200 +++$+++ 39626 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Insofar as the individual carriers write contracts with their covered employees, i.e., me and you and other people, and there's a lot of variation, I would say there's a lot of private going on. But insofar as those contracts are dictated by what OPM says, then it looks more to me like a regular Federal program.
05-200 +++$+++ 39627 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, those --
05-200 +++$+++ 39628 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I'm trying to get a handle on that.
05-200 +++$+++ 39629 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The contracts between the individual and the carrier are dictated by OPM in some sense because OPM negotiates the terms that bind the individual. So, the contract that you and I enter into when we sign on for health insurance is a part of the -- of the program, if you will, that's negotiated by OPM with the carrier.
05-200 +++$+++ 39630 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So in other words, when I sign a contract, or anyone who's a Federal employee, it's OPM who effectively sets those terms?
05-200 +++$+++ 39631 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, in negotiation with the carrier, and the statement of benefits is essentially the program. It tells you what benefits you're entitled to and it tells you what obligations you're encumbered by when you take on those benefits. And one of the obligations that you're encumbered by under the clear terms of this contract is the obligation to reimburse the carrier in the event --
05-200 +++$+++ 39632 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, I understand.
05-200 +++$+++ 39633 +++$+++ TRUE +++$+++ MR. SRINIVASAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that you receive benefits and then subsequently receive benefits from a third party. And one thing that I don't want to lose sight of is that ultimately this concerns money that will be reimbursed to the Federal Treasury. And so the fact that this case happens to involve litigation between two private parties shouldn't obscure the strength of the Government's interest in the area, given that Federal funds are involved.
05-200 +++$+++ 39634 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Srinivasan. Mr. Stock.
05-200 +++$+++ 39636 +++$+++ FALSE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, may it please the Court: I must confess that I continue to be perplexed by the claim that Congress intended reimbursement claims of this type to be handled and -- and to be dealt with in the Federal courts when that same Congress, in enacting the FEHBA statute, did not provide for that cause of action or that right in the first instance.
05-200 +++$+++ 39637 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's quite possible no one in Congress thought about this --
05-200 +++$+++ 39638 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it --
05-200 +++$+++ 39639 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- which is common. So if it is common, why is it that we would not use the same approach that the Court used in Clearfield Trust, in Kimbell Foods, and really look to the nature of the contract? Whereas here, the rights at stake are really those of the United States in that they are going to get the money. We have a statute. We have all those things I just listed. It covers only Federal employees. Should -- there are strong interests in uniformity throughout the Nation, et cetera, et cetera. So what is the difference between this case, other than a technical difference? I concede that one. The title is not United States. It's Blue Cross Blue Shield or whatever.
05-200 +++$+++ 39640 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
05-200 +++$+++ 39641 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Empire, et cetera. But aside from that, why is it different?
05-200 +++$+++ 39642 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because, Your Honor, in the first instance, number one, uniformity really is not a -- a legitimate claim in this -- in this instance by Blue Cross and Blue Shield.
05-200 +++$+++ 39643 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why -- why?
05-200 +++$+++ 39644 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because --
05-200 +++$+++ 39645 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The obvious reason for uniformity would be you are a Federal employee, whether you're in Alaska or whether you're in Virginia.
05-200 +++$+++ 39646 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
05-200 +++$+++ 39647 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it's unreasonable to think Congress would want the rights of those different Federal employees to differ just because of where they live. And so what's the answer to that?
05-200 +++$+++ 39648 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- the fact of the matter is, is the way Blue Cross has written this reimbursement provision, they will differ. The reimbursement provision, which -- by the way, to start with, the reimbursement provision that is in the Blue Cross Blue -- Blue Cross Blue Shield contract with the employees is different than the reimbursement provisions which are described in the contract between OPM and Blue Cross Blue Shield. It is markedly different in several ways, the first way being that, with respect to procurement costs and the issue of this $157,000, who pays to obtain that. In the OPM Blue Cross Blue Shield contract, it provides for attorney's fees and disbursements to be paid by the Government and the -- and the claim -- the reimbursement claim to be reduced by that. In the Blue Cross Blue Shield version of that between Blue Cross Blue Shield and the -- the litigant here, that provision is changed. And this is why I say they then undercut their own claim for uniformity. They basically say that we'll allow you attorney's fees if we feel like it in a particular case. That's not a uniformity provision.
05-200 +++$+++ 39649 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you're saying that there is a uniformity between a master contract between the United States and Blue Cross on the one hand, and Blue Cross and the subscriber on the other hand. But doesn't the United States approve the latter contract? In other words, doesn't it -- well, I forget the initials -- OPM or whatever it is. Doesn't it have a -- a requirement of approval going to the terms of the contract between Empire and -- and the employee before that contract goes into effect?
05-200 +++$+++ 39650 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure what the mechanics are of it, Your Honor.
05-200 +++$+++ 39651 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But isn't that -- isn't that crucial, though, in your answer to Justice Breyer? Because if the United States -- if OPM approves the Empire employee contract, maybe you can say, well, gee, there's something strange going on at OPM that they don't require exactly the same terms in the contract with the employee that they -- that they require in their master contract with -- with Empire. But it doesn't say anything one way or the other about the interest of the United States in having uniformity in which the -- in the -- in the interpretation and application of contracts, which they do approve, between Empire, other Blue Cross Blue Shield entities, and their employees.
05-200 +++$+++ 39652 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think when we're talking about uniformity, Your Honor, because this is a statute designed to benefit Federal employees, that we're talking about uniformity in the context of all Federal employees are treated the same. The provision that Blue Cross Blue --
05-200 +++$+++ 39653 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the United States is treated the same in relation to all Federal employees. I mean, there's -- there's an interest in uniformity for fairness among employees, and there's an interest in the United States in having the same expectation, in this case a reimbursement expectation, no matter where the employee is.
05-200 +++$+++ 39654 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. But in -- in terms of uniformity, the provision that Blue Cross -- several provisions that Blue Cross Blue Shield has added to this reimbursement clause undercut the uniformity aspect of it. And when you say in a particular case, we'll decide, well, the fellow from Alaska -- we'll give him his attorney's fees and disbursements, but the fellow from New York, we won't give it to, you undercut any -- any --
05-200 +++$+++ 39655 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's uniform in both Alaska and New York, they are subject to the -- to the Blue Cross waiver of attorney's fees or not. They're being treated uniformly. I don't see that that's disuniform. What is disuniform, it seems to me, is that you have an employee who wins a judgment in Alaska and he gets to keep all his money because Alaska law says the reimbursement provision is -- is invalid, and then you have a Federal employee in Texas who -- who gets a -- wins the same tort lawsuit, and he has to turn over to Blue Cross all the -- the portion of his recovery that would cover the outlay that Blue Cross has made. That's disuniformity.
05-200 +++$+++ 39656 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the uniformity which we're seeking, relative to these benefits, and the -- and the argument as to uniformity I would submit to you, at least as to how we treat the Federal employees, is illusory in this case because no matter how this Court decides in this particular case, whether there's Federal jurisdiction here or not, the employees are being treated differently State to State based upon the provision that Blue Cross Blue Shield has enacted.
05-200 +++$+++ 39657 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And I suppose that the preemption provision would apply equally if this were brought in State court or Federal court. Correct?
05-200 +++$+++ 39658 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-200 +++$+++ 39659 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I'm curious --
05-200 +++$+++ 39660 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your -- your answer to -- to Justice Scalia -- I'm sorry -- just did not register. I don't understand --
05-200 +++$+++ 39661 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it was incomplete, Your Honor, because I -- I had turned around to answer the Chief Justice. The -- the way they have this set up with the right of reimbursement and the -- and the kickers that Blue Cross Blue Shield puts in the statement of benefits creates a situation. They -- they add that these rights of reimbursement apply no matter how the cause of action for damages is delineated, in other words, whether it's seeking damages for medical benefits or damages for pain and suffering. And what Blue Cross Blue Shield has introduced is that -- that kicker. And -- and what that does, in effect, from State to State is change the outcome for the employee because, for instance, in New York where we have a collateral source rule by statute that says, you may not prove medical damages in a personal injury case for which you've collected insurance. So, for instance, in Denise McVeigh's case, I can't prove her medical bills. Yet, Blue Cross Blue Shield is going to come in and pick Denise Finn's pocket on her claim for pain and suffering for the $157,000 in medical bills that they say they've paid. Whereas, if I go across the river -- and I don't know the law in New Jersey, but assuming that New Jersey uses the older rule where, if I had the good sense to buy myself medical insurance and I collected medical insurance for the benefits that were -- if I collect the medical payments for the medical bills, I can still go into court and prove those medical bills as against the tortfeasor. In that particular instance, Blue Cross Blue Shield comes in and it takes money at least that I've gotten from the other side as opposed to in New York where they take money that I haven't gotten from the other side.
05-200 +++$+++ 39662 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but do they take money in New York that you haven't gotten from the other side?
05-200 +++$+++ 39663 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely. They're looking to assert a claim. I don't have a claim for medical benefits in the underlying court --
05-200 +++$+++ 39664 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but there's uniformity because the Government wins in both cases.
05-200 +++$+++ 39665 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor?
05-200 +++$+++ 39666 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There's uniformity because the Government wins in both cases. (Laughter.)
05-200 +++$+++ 39667 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I have to concede that that's true, and if that is the uniformity that we seek and the only --
05-200 +++$+++ 39668 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, that's the kind of uniformity the Government loves.
05-200 +++$+++ 39669 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sure they do. (Laughter.)
05-200 +++$+++ 39670 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I wasn't thinking of that kind of uniformity. (Laughter.)
05-200 +++$+++ 39671 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I assure you, Your Honor, that Denise Finn doesn't.
05-200 +++$+++ 39672 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I was thinking of the contract -- the contracts that the carriers enter into with the individual Federal employees in different places. And I'm trying to get an idea of whether those contracts all read the same or they don't. And so far, you have found one example of where they read differently. Some contracts apparently say when you reimburse us, you can subtract attorney's fees, and others say when you reimburse us maybe you can subtract attorney's fees, depending on how we feel about it. And I grant you that is a difference. And I am curious, as was Justice Souter, as to whether you have to get OPM approval for that difference or whether OPM can tell you, knock it off, we want the same. And also I'd like other examples. What I'm trying to do, to be clear about it, is I'm trying to see how similar this is to the instance of the Federal employee checks, which this Court many, many years ago said, when you pay your Federal employees and you write a check, it's Federal law that's going to govern the interpretation of the endorsement. I want to see how similar it is and how different. I have two differences. One is the name on this case is Empire, not United States, and the second difference is the one you just mentioned about may rather than must. Now, are there others?
05-200 +++$+++ 39673 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are differences in my understanding, Your Honor, from State to State between the different Blue Cross entities. I couldn't tell you what exactly those differences are, but my understanding is that these Blue Cross policies vary from State to State. Do they vary -- I -- I think, Your Honor, although it supports my contention, that you may have misunderstood what I said about the -- the difference between the reimbursement clauses, honestly. What I -- what I indicated was the -- the reimbursement clause that is in the OPM/Blue Cross contract is different from what Blue Cross then enters into with its members. That differs. I was not asserting that it differs from State to State. What I'm saying is that the effect of that differs from State to State certainly.
05-200 +++$+++ 39674 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May -- may I ask this? Because I think your example overlooks the fact that at least your opponent claims that the Blue Cross contract provision would preempt the New York law that denies your client recovery for health benefits.
05-200 +++$+++ 39675 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does --
05-200 +++$+++ 39676 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I think that would be their answer to your example.
05-200 +++$+++ 39677 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it would be in error, I believe, Your Honor.
05-200 +++$+++ 39678 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, if we -- if we think Congress can provide that a contract provision would preempt a State law, it seems to me the example you've given is the precise example that that statute was intended to cover.
05-200 +++$+++ 39679 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- at the -- at the very essence of that, I don't believe that a contract can preempt State law. The constitutional laws of the United States can preempt State law. If somehow you can bootstrap a contract into that by some theory, I suppose you could argue that it -- that it --
05-200 +++$+++ 39680 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But if -- if it does, it would eliminate the lack of uniformity on which you rely.
05-200 +++$+++ 39681 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it would not, Your Honor, in this instance because the -- the operation of that statute does not affect their right to reimbursement under their contract provision. It affects the --
05-200 +++$+++ 39682 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, but it affects the amount that your client can recover. And they would say that they -- because it assumes an absence of -- it assumes a payment by the carrier, and under -- I -- I think they would take the position that they have, in fact, the -- they have not, in fact, paid that insurance cost.
05-200 +++$+++ 39683 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I don't think we would ever --
05-200 +++$+++ 39684 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm not stating it very well, but I --
05-200 +++$+++ 39685 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the situation with the -- the term of New York law that I am -- that I had indicated would occur during a trial of the case and in terms of my cause of action. It would not affect Blue Cross' lawsuit against my client.
05-200 +++$+++ 39686 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. But the defendant would say, we don't have to pay those damages because they're covered by insurance. And the response would be, well, they're not -- they -- they are only covered by insurance if they can be reimbursed. I don't want to take up too much of your time on this.
05-200 +++$+++ 39687 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, they wouldn't be a party to that suit at that time, though, Your Honor, in -- in terms of raising that issue.
05-200 +++$+++ 39688 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But -- but the preemption provision, at least with respect to the rights of Empire, would ensure uniformity. In other words, if the contract terms preempt State law, then any impediment to recovery by Empire that varies from State to State would be overridden.
05-200 +++$+++ 39689 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, but that wouldn't affect -- that wouldn't override the net -- the net effect on the -- on the person. The -- the real world effect on Denise Finn and other people like her would still be different.
05-200 +++$+++ 39690 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, I understand that. But to the extent people are concerned about disuniformity from the point of view of the Federal recovery, the preemption provision is going to apply whether this action is in State court or Federal court.
05-200 +++$+++ 39691 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
05-200 +++$+++ 39692 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's your --
05-200 +++$+++ 39693 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And if the only -- if the only interest in uniformity we have, again, is whether the -- whether the Federal Government gets its -- its money back, then -- you know, then the uniformity argument may fly. But if we're also interested in the -- in the uniformity argument in the manner in which Federal employees are treated and in the manner in which ladies who -- such as Denise Finn are treated, then uniformity is -- is out the window under these -- under this --
05-200 +++$+++ 39694 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But the only question that we're considering today is whether or not Federal question jurisdiction exists to authorize bringing this suit in Federal court.
05-200 +++$+++ 39695 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I would submit to Your Honor it clearly does not because this case, involving Blue Cross suing Denise Finn for these benefits involves not issues of the construction or interpretation of a Federal statute, but issue -- the issues involved in our case are whether they're entitled to collect the money that they paid three times to the same doctor for the same service on the same day. They paid a particular Dr. Brown $17,500 for the same service on three occasions. In addition, our dispute involves whether or not some of the benefits that they claim they paid and which were medically a result of this accident were in fact or whether they were taking other benefits they paid and trying to be a little cute and collect those under saxony. Those are the issues. Those issues --
05-200 +++$+++ 39696 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I would have thought the issue is whether Federal law governs this --
05-200 +++$+++ 39697 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, yes, but --
05-200 +++$+++ 39698 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and they come to Federal court. So what is clearly -- maybe I -- maybe you've -- I don't think you've said this. We know this. That if the United States issues checks to all of its employees throughout the country and then it seeks to recover from one of the drawees or one of the people who endorsed the check on the ground it was fraudulent, we know that it is Federal law that must govern those checks. Right? From Clearfield.
05-200 +++$+++ 39699 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, which --
05-200 +++$+++ 39700 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Now, what is the difference in this case? In this case, we have a private administrator of this Federal -- of this -- of this Federal program. There are Federal employees throughout the country. They are supposed to receive uniform -- reasonably uniform health insurance, and the private administrator wants to obtain money that it thinks it's entitled to to put into the Federal Treasury. Now, aside from the name, what's the difference?
05-200 +++$+++ 39701 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The difference is, is in the instance of Clearfield Trust, you had the Government involved in a dispute over their own commercial paper that they issued and a uniquely Federal interest and a uniquely Federal item. Here, these -- Federal employees aren't the only employees in America who get health benefits, and they are -- these disputes that arise under this statute are most frequently not of the -- not seeking to answer the grand questions. They're most frequently involved in dealing with issues such as we have here. Whether the --
05-200 +++$+++ 39702 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If the Federal Government were running this program itself, would you make the same argument?
05-200 +++$+++ 39703 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor. I missed the first --
05-200 +++$+++ 39704 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If the Federal Government were running the program itself, rather than having it -- private entities administer the program for it, would you make the same argument?
05-200 +++$+++ 39705 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know that I would, but I think the caveat to that is if the Federal Government were running it themselves, pursuant to a different statute than we have here, the first thing I think I would look at is what jurisdiction or what the Congress had to say about where they wanted cases arising from that. It may well be --
05-200 +++$+++ 39706 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, they've already said that. I mean, there would be Federal jurisdiction there because the Federal Government would be a party to the case. Right?
05-200 +++$+++ 39707 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. But they're not a party to this case.
05-200 +++$+++ 39708 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's exactly what I'm trying to find out. That's -- that's what I'm -- I'm trying to figure out in my mind how close this is to the Federal Government running a uniform program. I mean, everybody agrees Federal law governs questions involving the rights of the United States --
05-200 +++$+++ 39709 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-200 +++$+++ 39710 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- arising under nationwide Federal programs. And here, we have not the United States. We have Empire. And so how close is Empire to being simply an instrument of the United States in this respect, and how close is it to being really an independent company that sets up its own insurance contracts? That's what I'm trying --
05-200 +++$+++ 39711 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Interestingly enough, the Government has told us that. And what they told us -- and it's at page 4 of -- and in a footnote number 3 from the amicus curiae's briefs from Cruz. And the Government has told us in Cruz's pending certiorari petition that that -- Blue Cross Blue Shield carriers do not perform outsourced Government tasks, are not agents of the Government, and do not act on behalf of OPM. Rather, they function as independent economic entities that offer and run their own health insurance plans, performing a role that is not governmental in nature.
05-200 +++$+++ 39712 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's quite good. What are you reading from?
05-200 +++$+++ 39713 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor?
05-200 +++$+++ 39714 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What are you reading from there?
05-200 +++$+++ 39715 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We're reading from the footnote number 3 of the amicus curiae's brief at -- at page 4.
05-200 +++$+++ 39716 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The Government -- the Government as amicus? The Government as amicus.
05-200 +++$+++ 39717 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no. The -- the amicus from the -- representing Cruz.
05-200 +++$+++ 39718 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't -- isn't that --
05-200 +++$+++ 39719 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And their -- but it is --
05-200 +++$+++ 39720 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- isn't that -- isn't that --
05-200 +++$+++ 39721 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- their statement in their -- in the certiorari -- this is the Government's statement. This is the Department of Justice's concession that Blue Cross has sole authority over reimbursement decisions, and that is their language. That's the way they describe --
05-200 +++$+++ 39722 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But at the end of the day, the money, every penny collected, minus any service fee, is going to go into the Federal Treasury. Isn't it?
05-200 +++$+++ 39723 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true.
05-200 +++$+++ 39724 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Of course, you could say the same about -- about any recovery, that a certain percentage in taxes will go to the Federal Treasury I -- I --
05-200 +++$+++ 39725 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we can also say -- we can also say that irrespective of whether the Federal courts collect it or the State courts collect it, it's still going to end up in the Federal Treasury, and that these are --
05-200 +++$+++ 39726 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But whether it's collected or not may -- indeed, may vary depending on whether State law or Federal law applies. And if Federal law applies, then you have the jurisdictional consequence.
05-200 +++$+++ 39727 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The problem in this case, in terms of asserting arising-under jurisdiction, is -- and -- and in terms of Boyle also, is that the -- the Petitioner has failed to point out any difference in how it would occur. There is absolutely no difference pointed out by the Petitioner as to how the law would differ --
05-200 +++$+++ 39728 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, presumably it didn't do that because the preemption provision does not rely upon conflict.
05-200 +++$+++ 39729 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The preemption provision doesn't apply to reimbursement provisions either, Your Honor. It applies to --
05-200 +++$+++ 39730 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it doesn't apply to reimbursement provisions, you say, but it does apply to benefits. And -- and the value of a benefit is going to vary from the -- the policy limit to zero depending, in a case like this, on whether a third party payment has to be given to the Government with -- with -- isn't -- isn't that a question of benefit?
05-200 +++$+++ 39731 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it is not, Your Honor. And with all due respect, this Court has consistently held that words used in one place in the statute should mean the same thing as in other places in the statute. Coverage and benefits, as it's defined in this statute, does not include reimbursement claims, and to stretch that preemption clause --
05-200 +++$+++ 39732 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Will you quote the language that you're referring to?
05-200 +++$+++ 39733 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If I can find it, Your Honor, sure. I'm sorry, Your Honor.
05-200 +++$+++ 39734 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I don't want to take up too --
05-200 +++$+++ 39735 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I'm sorry, Your Honor. I'm flipping around. I have it here.
05-200 +++$+++ 39736 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ My -- my concern simply is that you've made a conclusory statement that elsewhere there's a definition that doesn't --
05-200 +++$+++ 39737 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is.
05-200 +++$+++ 39738 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and --
05-200 +++$+++ 39739 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And it's --
05-200 +++$+++ 39740 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ After the argument, just give me a cite so I know exactly what you're -- you're getting at.
05-200 +++$+++ 39741 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No problem, Your Honor. The -- the punch line to it is or to paraphrase it, you know, benefits are described as payments for medical -- medical payments for this, that kind of thing. But there is a very specific description of what benefits means in the plan. It doesn't include reimbursement. And I -- and I think it really stretches it to include reimbursement as a -- under that benefit setting.
05-200 +++$+++ 39742 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But how do you answer the question that I think Justice Breyer was -- was getting at, that it's -- it's a -- the -- what's in it for the carrier? Nothing. As -- if -- if every penny that the carrier collects is going to go into the U.S. Treasury, then why does the carrier care?
05-200 +++$+++ 39743 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Being a cynic, I'm not so sure of that, Judge. But -- Your Honor. I'm sorry. I'm not so sure of that because early on in the -- in Blue Cross Blue Shield's summary of the facts, they indicate that Blue Cross' fees in the matter are determined based upon performance. I don't know what performance means, but I suspect it has something to do with how much money ultimately ends up being spent. I don't think it's necessarily relevant to the inquiry that we're involved in. The fact that -- that all of the money may ultimately go to the Government, though, I don't think changes the issue as to whether or not this Court should confer subject matter jurisdiction upon the district courts in this case. There -- the -- the issues here can be resolved in the State courts and more efficiently than in the Federal courts. And certainly I think that the Federal courts would not look forward to an influx of cases dealing with issues in -- in essentially personal injury issues involving whether or not particular doctors were paid properly, whether or not particular payments need to be made in connection with and are reimbursable to the Government, or the types of issues that we have here. And to be perfectly honest, most of the cases are not of the magnitude of this one where we're talking about $150,000. Most of the cases involve $5,500 and $6,500 and things like that. The Government --
05-200 +++$+++ 39744 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but this is a claim for $150,000 out of a settlement of $3 million or $4 million.
05-200 +++$+++ 39745 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-200 +++$+++ 39746 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What was your defense on the merits?
05-200 +++$+++ 39747 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To this claim?
05-200 +++$+++ 39748 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
05-200 +++$+++ 39749 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our defense on the merits to this claim, were we to get there, is that the Government has paid the same doctor $17,500 three times for the same service, and that Denise Finn should not be required to reimburse Blue Cross Blue Shield when they have incompetently, in effect, paid out more money than they should have. The second defense involves the fact that some of the benefits which Blue Cross Blue Shield is seeking reimbursement for are not connected to the accident that injured Mr. McVeigh. They're part of his normal health care type of services which wouldn't fall under the reimbursement claim. Those claims are -- are not the type of things that I think that the Federal district courts want to deal with. This case --
05-200 +++$+++ 39750 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I take it you're not foreclosed from making your defense or your claim in the Federal court.
05-200 +++$+++ 39751 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, absolutely not. But --
05-200 +++$+++ 39752 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. -- Mr. Stock, we have one loose end. I think we do. Both Justice Breyer and I have -- have asked the question whether OPM has to approve of the terms of the contract between Blue Cross and -- and the -- the insured. Is -- does OPM have to approve?
05-200 +++$+++ 39753 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe they do, Your Honor. I think the terms of OPM and Blue Cross' contract provide that Blue Cross will enter into a -- a contract with the -- with the policyholders that is consistent with its contract with OPM. But I don't -- I don't believe -- and -- and honestly, I -- I did not look before we -- we talked about this. I don't believe it requires their approval. They don't get a copy of the contract and read it over.
05-200 +++$+++ 39754 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Assuming the consistency term, that supports an argument that the Government has an interest in -- in uniformity of -- of interpretation, doesn't it?
05-200 +++$+++ 39755 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Only if the -- if in uniformity of interpretation of the contract?
05-200 +++$+++ 39756 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, yes.
05-200 +++$+++ 39757 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the Government has an interest in uniformity of the manner in which the -- the employees are ultimately treated, and I think when we talk about uniformity, that that's what we ought be talking about.
05-200 +++$+++ 39758 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I guess you can be -- depending upon how detailed the OPM contract is, you can be consistent with that contract and still have an enormous amount of variation from one to another. It depends entirely upon whether the OPM contract is entirely comprehensive. If it covers every jot and tittle, then I guess you can't be consistent with it and different. But if it's -- if it's sort of bare bones, you -- you could be consistent with that and have a lot of variation, couldn't you?
05-200 +++$+++ 39759 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, absolutely. And -- and my understanding is that -- is for that reason that OPM does not review the contracts and approve the contract language of Blue Cross Blue Shield.
05-200 +++$+++ 39760 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if -- if --
05-200 +++$+++ 39761 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I don't know that.
05-200 +++$+++ 39762 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- if, in fact, there were consistently only in this remote sense so that the interests which are meant to be protected in the -- in the OPM Blue Cross contract aren't being protected at the next level, then OPM could bring an action against -- against Blue Cross saying it's not consistent enough, couldn't it?
05-200 +++$+++ 39763 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could.
05-200 +++$+++ 39764 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-200 +++$+++ 39765 +++$+++ TRUE +++$+++ MR. STOCK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could. But in this particular instance, the contract provisions that Blue Cross are -- and Blue Shield are seeking to enforce, as regards reimbursement, are markedly different. I mean, it's -- it's not a small variation. It's a very substantial matter in terms of, first, the procurement costs and, second, in terms of what kind of a cause of action Blue Cross Blue Shield can take the money from. But that's not an -- an incidental. That goes to the heart of -- of the matter. If there's no other questions, Your Honors, thank you.
05-200 +++$+++ 39766 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you very much, Mr. Stock. Mr. Shelley, you have 4 minutes remaining.
05-200 +++$+++ 39768 +++$+++ FALSE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice.
05-200 +++$+++ 39769 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I wonder if you could focus on one question for me. If you have a State law cause of action and the law to be applied to some aspects of that cause of action is Federal law, is that sufficient to establish Federal question jurisdiction or not?
05-200 +++$+++ 39770 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is, Your Honor, under the Grable case that the Court issued last year. A State law claim that turns on the construction of Federal law, a substantial question of Federal law, is removable to Federal court and arises under Federal law in the first place. I wanted to address Justice Souter's question of whether OPM does approve the contract. There's no individual contract -- excuse me -- between Blue Cross and any individual enrollee. The statement of benefits is part of the Government contract. It is attached at appendix A and the terms of the contract, the master contract, specifically say that in sections 2.2 and 2.5, that the benefits shall be -- and -- and reimbursement terms as well -- shall be consistent with and incorporated by the statement of benefits, which is attached. And so it is part of the contract. There's no separate contract here. It's one --
05-200 +++$+++ 39771 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You mean everybody in the entire United States gets the same piece of paper.
05-200 +++$+++ 39772 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The same brochure.
05-200 +++$+++ 39773 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it's identical. There is no difference between every individual's contract, every Federal employee's -- I guess it's a contract with the Federal employee. Isn't it? I mean, he's bound by it you say.
05-200 +++$+++ 39774 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They -- by enrolling, they bind themselves to the contract.
05-200 +++$+++ 39775 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. So I am -- in Alaska, Virginia, everywhere, they get the same piece of paper. They enroll and then they're bound by it.
05-200 +++$+++ 39776 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
05-200 +++$+++ 39777 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the question here is whether that should get different interpretations possibly in different places.
05-200 +++$+++ 39778 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under State law, and it should not. And we are -- it is a uniform system across the country, and the -- the carrier is bound to apply those terms, particularly the reimbursement terms, consistently and equitably across the country.
05-200 +++$+++ 39779 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Counsel --
05-200 +++$+++ 39780 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Section 4.1 of the contract says that.
05-200 +++$+++ 39781 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the -- the Grable case said, though, that the Federal question had to be a necessary element of the State law cause of action. That's not always the case in these cases, is it?
05-200 +++$+++ 39782 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-200 +++$+++ 39783 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's only -- the -- the Federal question comes up only on issues of preemption. They may or may not be presented in a particular case.
05-200 +++$+++ 39784 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the first instance, our claim is an enforcement claim for the contract. The contract itself and the common law that surrounds it are -- are Federal law, and as a result, we --
05-200 +++$+++ 39785 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that kind of -- that begs the -- that's not the question I asked and it sort of begs the question. I mean, you have the State law cause of action to enforce your contract claim, and if there's some State law that's asserted against you that's inconsistent with the contract, then you have the Federal question issue. But that's the only Federal question I see in the case.
05-200 +++$+++ 39786 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but there are, for instance, seven States that wouldn't allow us to bring the cause of action in the first place, and that's why we need to go back to the question of whether the claim itself is Federal in nature. And under the Jackson Transit or Clearfield Trust analogies, the law at the start, the cause of action, the claim itself is Federal in nature, and you don't need to get to the question of whether the vessel of a State law claim --
05-200 +++$+++ 39787 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ My hypothetical that I started with was assuming you have a State law claim, a State law cause of action. So do you have any authority other than Grable for the proposition that a State law cause of action which -- in which the law to apply may or may not turn on Federal law in particular aspects presents a Federal question?
05-200 +++$+++ 39788 +++$+++ TRUE +++$+++ MR. SHELLEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the contract itself is Federal law. It -- it is a -- it is tantamount to a regulation that the Government has selected the terms of, and as a result, it should be treated as Federal law. And -- and cases, Franchise Tax Board, on which -- on which Grable relies and the earlier cases -- we -- we would say those reach a similar result. One other point I wanted to address was this issue of whether this attorney's fees question is different than the master contract or the statement of benefits. It's not. The master contract addresses the question of whether we can deduct our own attorney's fees from the recovery before we give the money to the Federal Treasury. The statement of benefits governs the question of whether we -- we will deduct for attorney's fees when we collect the claim from the subscriber.
05-200 +++$+++ 39789 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you very much, Mr. Shelley. The case is submitted.
05-204 +++$+++ 39793 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument next in No. 05-204, League of United Latin American Citizens v. Perry, and the consolidated cases. Mr. Smith.
05-204 +++$+++ 39795 +++$+++ FALSE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The Texas legislature passed a new congressional districting map in 2003 for only one reason: maximizing the number of Republicans who would represent the State of Texas in Congress. Even though the existing lawful map already had 20 of 32 districts which strongly favored the Republicans, lawmakers went to extraordinary lengths to lock in control of 22 districts, moving around 8 million people into new districts, abandoning concerns about compactness, wherever necessary, and most importantly, segregating the population by race and by politics into 32 districts which are extremely noncompetitive.
05-204 +++$+++ 39796 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So your -- your statement that it was for one reason only means it wasn't for any discriminatory reason on the grounds of race or ethnicity?
05-204 +++$+++ 39797 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the finding of the district court, which we're relying on here, was that it was purely for discrimination based on partisanship rather than on the basis of race. Now, they started out by trying to engineer the defeat in the -- in the legislative process, engineer the defeat of the six Democratic Congressmen who had managed to be elected in Republican-leaning districts because they were moderate to conservative and they were, as the district court put it, able to appeal to voters to split their tickets and vote for them in 2002. By the end of the legislative process, they went further and decided to take the risk of eliminating one of only four districts in the State in which African Americans had an opportunity to elect candidates of their choice and also to eliminate one of the Hispanic opportunity districts in south Texas. Now, in the latter case, they did try to replace that with another Hispanic opportunity district, but that was the one that we've called the land bridge district, District 25, which spans 300 miles, linking up urban concentrations of Latinos in Austin and in McAllen down on the Mexican border.
05-204 +++$+++ 39798 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You think that's no good.
05-204 +++$+++ 39799 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we --
05-204 +++$+++ 39800 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not -- not even to prevent retrogression, which would violate section 5.
05-204 +++$+++ 39801 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the retrogression problem was created by the fact that they had gotten rid of a much more natural -- naturally occurring --
05-204 +++$+++ 39802 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that was done for political reasons, not racial reasons.
05-204 +++$+++ 39803 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly, Your Honor, and that's the argument that was made and rejected expressly by this Court in Bush v. Vera, that we had to make an ugly minority district rather than a compact minority district because if we did it the other way, a nearby incumbent would lose his seat. That was precisely the argument that was made there, that it was really incumbency protection, and we had to make it this ugly district to send that excessive racial message in order to protect other nearby incumbents, an argument which is mirrored here exactly and -- and as to which I notice the -- the State of Texas offers no response.
05-204 +++$+++ 39804 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But what -- what is your proposal? What -- what is -- what is a State to do if -- assuming there is a political motivation in drawing its districts, perfectly valid political motivation let's assume, and the result of that redrawing is that it would eliminate a majority minority district, what -- what is the State supposed to do?
05-204 +++$+++ 39805 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the State has to stay within the constitutional confines of the Shaw v. Reno doctrine which would require it not to go so far in the pursuit of its political agenda that it creates a district -- has to -- has to create a minority opportunity district somewhere that would otherwise violate Shaw. Now --
05-204 +++$+++ 39806 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what's the -- I'm -- as Justice Scalia, I'm interested in the section 25 problem. The briefs --
05-204 +++$+++ 39807 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ District.
05-204 +++$+++ 39808 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- for your co-counsel don't talk much about it, and it's -- it's a problem for me. Justice Scalia's point was let's assume -- and I have some doubt about it. Let's assume that there's a valid reason for redoing section 23. That means you need another district to avoid retrogression. What is -- what is your position as to district 25 on that assumption, based on that assumption?
05-204 +++$+++ 39809 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that it makes a constitutional difference under this Court's cases whether or not the reason they decided to place the district there and give it that configuration was because they had a political agenda somewhere else. The -- the fact of the matter is they -- they were deliberately trying to create an Hispanic majority district there, and to do it, they had to go all the way up to Austin and grab 300,000 Latinos and link them up with --
05-204 +++$+++ 39810 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Surely, that's not what makes it bad. Even if they created a compact district but with the -- with the intent of creating a majority minority district, that would be a district created for a racial reason. The mere fact that this one happens to be not compact doesn't eliminate the motivation, and -- and I don't see how you can avoid that motivation unless you're going to abandon the -- the prohibition against regression.
05-204 +++$+++ 39811 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our point, Your Honor, is that in this situation, doing it this way, the -- the motivation predominates over the other legitimate districting criteria, which I think under Bush and under --
05-204 +++$+++ 39812 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which -- which motivation?
05-204 +++$+++ 39813 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- the racial motivation to create a district -- to -- to reach out as far as they did to capture --
05-204 +++$+++ 39814 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, can the -- can the State by its action with one district, i.e., 23, in effect bootstrap itself in a position where it's entitled to use race where -- in a -- in a predominant and I -- I think insulting way and -- and then have a defense?
05-204 +++$+++ 39815 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our submission is that they cannot, Your Honor. Now, if I could turn to the partisanship issue, our --
05-204 +++$+++ 39816 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I just clarify one thing on that?
05-204 +++$+++ 39817 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure.
05-204 +++$+++ 39818 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I take it your reason was that in Bush v. Vera, the Court said, of course, they can use race to prevent retrogression. Of course, they can, but if they do, they have to create a compact majority minority district, not an elongated majority --
05-204 +++$+++ 39819 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-204 +++$+++ 39820 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's the -- that's the argument. I have to go back and look at Bush v. Vera.
05-204 +++$+++ 39821 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, and that they can't say we have to create it in a non-compact way where the race predominates over the other values because we have a political agenda of protecting some other incumbent in a non-minority district.
05-204 +++$+++ 39822 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How -- how does that make any sense to say that what you're objecting to is the consideration of race in one situation, but if it's compact and the predominant motive was the consideration of race, that doesn't bother you? That seems to me to be a back-door way to get into a more extensive judicial review of the compactness and based on racial considerations that are, under your view, the predominant factor in each case.
05-204 +++$+++ 39823 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I think there's a question of what you mean by the word predominance. And I as understand the Court's cases, there are times when the shape and the extra efforts that are made to -- to kind of gather up minority voters as, for example, in Miller v. Johnson where we had a very similar district, where race is said to predominate in a different sense than it does when you simply are creating a minority district to avoid retrogression or to -- to stay in compliance with the Voting Rights Act. Clearly, the Voting Rights Act requires you to create minority districts. It should require that it makes sense that people make efforts to do that. We're not saying you shouldn't do any of those things. We're just saying in this instance, under this Court's cases, you shouldn't be able to use your political agenda to allow you and justify you to do it in a different way which sends this extra message of excessive racial consideration.
05-204 +++$+++ 39824 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And that's a --
05-204 +++$+++ 39825 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you can take race into account if it's compact as a predominant motive. You can't take race into account if it's not compact.
05-204 +++$+++ 39826 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think, Your Honor, you certainly can --
05-204 +++$+++ 39827 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ As a dominant motive.
05-204 +++$+++ 39828 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You certainly can intentionally create a minority district under section 2 of the Voting Rights Act. I don't know how you could comply with section 2 of the Voting Rights Act if you don't do that in situations where, under the Gingles criteria, that's what you're supposed to do.
05-204 +++$+++ 39829 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask? I'm a little puzzled by the -- the questioning. Doesn't everyone agree that the predominant motive in all the districts was political? You agree to that, don't you?
05-204 +++$+++ 39830 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-204 +++$+++ 39831 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you don't agree that that necessarily makes it valid, that that's necessarily a defense to section 2.
05-204 +++$+++ 39832 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I actually don't agree with that, Your Honor, and you're right.
05-204 +++$+++ 39833 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and the problem with section -- with district 23, under section 2 of the Voting Rights Act, is not the motivation. It's the results that have changed. Isn't that correct?
05-204 +++$+++ 39834 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor.
05-204 +++$+++ 39835 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the question under the district court's opinion is whether the political motive was an adequate defense to what would otherwise be a violation of section 2. Is that correct?
05-204 +++$+++ 39836 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor.
05-204 +++$+++ 39837 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, isn't it correct, though, that a result is -- focus on results is not sufficient if the challenge is an equal protection one and not a section 2 one?
05-204 +++$+++ 39838 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, but -- but our challenge under the Equal Protection Clause --
05-204 +++$+++ 39839 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm talking about district 25.
05-204 +++$+++ 39840 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's a little hard to keep all the different arguments straight, but yes. Our argument is based on intent there, yes, Your Honor. And -- and the argument is that the intent went too far because they had to --
05-204 +++$+++ 39841 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's why I asked earlier that your -- your statement that all of this was done with a political motive -- I wondered how that satisfied the equal protection requirement, not the section 2 requirement.
05-204 +++$+++ 39842 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think there are situations in which you have a political motive overarching the entire map, and that -- but at the same time, that pushes you to do some things which could violate the Fourteenth Amendment in terms of racial conduct. And that's what this -- that's what our argument is --
05-204 +++$+++ 39843 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you don't think that's a defense. It seems to me the State creates the very problem that it claims that it must use race to settle.
05-204 +++$+++ 39844 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor, yes. We don't think it's a defense in this instance.
05-204 +++$+++ 39845 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, with respect to section 2, what is -- what is your position on the relationship between the predominant political motivation and the existence and nonexistence of a section 2 violation?
05-204 +++$+++ 39846 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, if I understand the question, I -- if the question is is it permissible to have --
05-204 +++$+++ 39847 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If -- let me put it another way.
05-204 +++$+++ 39848 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
05-204 +++$+++ 39849 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If -- if you otherwise demonstrate a section 2 violation, is the political motivation a defense?
05-204 +++$+++ 39850 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
05-204 +++$+++ 39851 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No.
05-204 +++$+++ 39852 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly not. Now, we have a -- an argument about that too, which has to do with the district in the Dallas-Fort Worth area, and I think the political defense there doesn't have anything to do with it. Now, if -- if I could, I think that the whole map -- the decision to redraw the whole map violates the Equal Protection Clause for a wholly different reason, which was that it was wholly lacking in any rational, legitimate public purpose. At the time, there was a lawful map in place that had the right number of districts, and the district court found as fact that the only reason that this law was even considered, let alone passed, was to help one political party gain more seats in the Congress at the expense of the other.
05-204 +++$+++ 39853 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about having a --
05-204 +++$+++ 39854 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Wow. That's a surprise. (Laughter.)
05-204 +++$+++ 39855 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about having a -- a plan that was put in place by the legislature instead of a temporary plan put in effect by a court?
05-204 +++$+++ 39856 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
05-204 +++$+++ 39857 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't there -- isn't it -- you -- you seem to treat this as a redone redistricting instead of as the very first redistricting done by a legislature.
05-204 +++$+++ 39858 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was the first one done by the legislature because they violated the Constitution intentionally when they had an obligation to -- to draw a map 2 years earlier. Our submission is that the existence of some power that the legislature may have to -- to alter the remedial map -- and they may well have that power. We don't -- we don't question that -- doesn't justify the map. They still have to, in exercising that power, point to some constitutional basis for which they're acting.
05-204 +++$+++ 39859 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which -- but it's a perfectly constitutional basis to alter the map because we don't think it allocates the seats in the fashion that our political power enables us to -- to provide for. Legislatures redraw the maps all the time for political reasons. I mean, to say that this is, you know, something horrible is ridiculous. You acknowledge that political motivation is fine.
05-204 +++$+++ 39860 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we --
05-204 +++$+++ 39861 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Don't you?
05-204 +++$+++ 39862 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- we acknowledge that we tolerate political motivation in the context of map-drawing when there's other legitimate public purposes being served, which is to say at the beginning of the decade when they have to redraw the map anyway.
05-204 +++$+++ 39863 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I see.
05-204 +++$+++ 39864 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But our position is when it's purely for partisan motivation, which is -- only occurs in mid-decade --
05-204 +++$+++ 39865 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even -- even when the map is so distorted -- you -- you acknowledge that the map that came out, after this -- this realignment of districts, had less of a divergence between the voting strength of the Republican Party and the number of Republican seats than had existed under the previous allocation by the Democrats.
05-204 +++$+++ 39866 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that is not, we believe, a justification for two reasons, Your Honor. This notion that you can have compensatory gerrymandering and that that can be your justification -- I think it's wrong as a matter of law because all it amounts to is another way of saying we like -- we don't like the partisan composition of the delegation that the people voted for and we're going to change it.
05-204 +++$+++ 39867 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm saying less. Less. It -- there's less of a divergence under the new map than there was under the old one. The only difference is this divergence is in favor of the majority.
05-204 +++$+++ 39868 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, as the district court found -- and this is on page 85 of our jurisdictional statement appendix -- it wasn't that there was bias in the map that the court drew. It was that there were 20 of 32 districts that strongly favored the Republicans in the court-drawn map. It just so happened that the voters in those districts, in six of those Republican-leaning districts, happened to like voting for moderate to conservative Democrats who they were comfortable with. Now, if you tell me -- I -- I find difficulty -- I find it difficult to understand how anyone could say the legislature can, as a matter of -- use the machinery of government to decide that those voters should not have that opportunity to do that again, that that was a mistake.
05-204 +++$+++ 39869 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, counsel, just take it in -- in an abstract way. If you think that the prior system has been gerrymandered by the party in power, are you saying that when that shift in power in the statewide offices changes, that the new party in power cannot redress the gerrymandering of its predecessor?
05-204 +++$+++ 39870 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My -- my answers to that are twofold. I think as a matter of law that the Court should hold that -- if that's the only justification, you ought to wait until you have other public purposes for redrawing the lines. But even if that were -- even if the Court is going to allow that kind of justification for mid-decade redistricting, it shouldn't allow it here because it was just factually untrue, as the district court found.
05-204 +++$+++ 39871 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but let's get back to the -- to the principle without just talking about these -- these factfindings. It -- it seems to me very odd for you to be telling us that partisan gerrymandering is -- is improper when that's the sole or substantial, predominant motivation, but then saying that we can't correct it when it's happened. Let's assume that the 1990 legislative plan was one that was done with -- without a wholly partisan intent, but over the years, it -- it now freezes in the Democrats or party X to having a much greater advantage than the general registration would give it. And if it leaves it in for a particularly partisan purpose, why -- why can't it be redone?
05-204 +++$+++ 39872 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I think that if the Court --
05-204 +++$+++ 39873 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I just don't understand that argument.
05-204 +++$+++ 39874 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it's a dangerous thing to do, to say to the legislatures of the country you can't redistrict for partisan gain, but if you can recouch it as partisan compensation, that's okay.
05-204 +++$+++ 39875 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let me give you another parallel. Let's suppose that districts have been gerrymandered for racially discriminatory purposes for years. Can you take race into account in drawing new districts to remedy that racial discrimination?
05-204 +++$+++ 39876 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think if a map is illegal, Your Honor, then -- then certainly it is within the power of -- of the legislature to --
05-204 +++$+++ 39877 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, well, that's -- but now, in fairness, I think to the red brief argument -- you've read the red briefs.
05-204 +++$+++ 39878 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I have, Your Honor.
05-204 +++$+++ 39879 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. They are filled with factual information that in their opinion shows that previously the Democrats had gerrymandered this much worse, and that what -- this was an effort to create a balance. That's what their view is. Now, I want to know really precisely what is your response to that argument.
05-204 +++$+++ 39880 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My response is -- is -- factual response is that by the time we got to 2002, the district court's drawn map had 20 of 32 districts, which voted overwhelmingly Republican for every other office, in the range of 60 to 70 percent, so that whatever bias was introduced into the map in 1991, if there was one, had been eradicated because all of these Democrats in those districts had become more Republican. And so the map was not biased. There was nothing wrong with the lines.
05-204 +++$+++ 39881 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, what do I look to in the record to verify what you just said?
05-204 +++$+++ 39882 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You look to the court's finding on page 85 which said that 20 of 32 districts favored the Republicans. And you look at the expert reports filed by both sides at the trial that preceded that finding, and the experts for both sides said that the court-drawn map was a pro-Republican map that favored the Republicans or, at minimum, was fair, and that with the kind of voting patterns that existed in Texas at the time, one would expect the Republicans to carry 20 districts in most of the elections. Now, they also said -- and -- and this is a reason why the State didn't actually put their expert on the stand -- that the map that the legislature had drawn instead was wildly biased in favor of the Republicans in that at 52 percent of the vote, they would still get 22 districts, and at 50 percent of the vote, they'd still get 20 districts.
05-204 +++$+++ 39883 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but what percentage did they have? I -- I thought that -- you say that they should have gotten 20 districts, and how many districts did the plan give them?
05-204 +++$+++ 39884 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The plan gave them 20 districts in which they had a strong Republican majority. Now, what that means is that --
05-204 +++$+++ 39885 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you say that's what they should have had, given -- given the voting in the State.
05-204 +++$+++ 39886 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I say they -- that given that opportunity to have 20 districts elect Congressmen, that's -- that's all that anybody could reasonably ask for. That's the only kind of justification that I can even imagine justifying purely partisan redistricting in mid-decade. The fact of the matter is the large majority of the Members of Congress who went to Washington after the 2002 election were elected by Republicans in Republican districts. That's what the facts are. Now, they say, well, vestiges of the past gerrymander are still around, but what does that mean? The fact is the districts are by now overwhelmingly Republican in the large majority of cases.
05-204 +++$+++ 39887 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you have any -- any authority either in the text of the Constitution or in a -- a case for the proposition that the only reason a legislature can reapportion its districts is because there's been a census?
05-204 +++$+++ 39888 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our -- our position is slightly different.
05-204 +++$+++ 39889 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but that's your position when you said mid-decade redistricting is bad because your -- your position is the only reason is the census is -- has -- has caused there to be less than -- than one man/one vote.
05-204 +++$+++ 39890 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There may be cases where you could do mid-decade redistricting for neutral, legitimate public purposes. I submit they'll be quite rare in -- in practice, but there certainly could be. Our position is you can't redraw the lines purely for partisan gain, and the case I would point to that I think most strongly speaks to that is Cox v. Larios. In that case, the district court found that population deviations, sufficiently small that they weren't even usually requiring justifications, didn't pass the rational basis test because the only explanation you could offer for those deviations was that they were systematically attempting to help the Democrats at the expense of the Republicans.
05-204 +++$+++ 39891 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- but are you saying --
05-204 +++$+++ 39892 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if you say that mid-decennial districting is suspect or subject to some special rules, then it seems to me that you're -- you're taking away a very important deterrent that works on legislatures when they do decennial districting. If you know as a legislature, when you do a decennial districting, that your program is going to be presumptively valid or not subject to partisan gerrymandering, then -- then you're -- then you're liable to overreach. And it -- it seems to me very dangerous for this Court to take away that control mechanism that exists so that legislatures know that there's a possibility that if they overreach, they can be corrected.
05-204 +++$+++ 39893 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that might be a concern, Your Honor. I don't think the -- the historical practice supports it because the fact is that while there's been a fair amount of partisan redistricting, whatever one wants to call it, in the last several decades, there have been precious few, if any, examples of anybody trying to convene the legislature before the next census to try to fix it. It is extraordinarily rare. And the reason for it is we -- there's a general tradition we've established in this country that whatever happens when those lines get drawn, even if it's done by a court, you leave it alone until the next time --
05-204 +++$+++ 39894 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, there was no --
05-204 +++$+++ 39895 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That -- that little -- even if it's done by the court. I like the way you slipped that in. I mean, even if you had a general rule that you cannot redistrict except after a decennial census, surely there ought to be an exception unless -- which -- which would read, unless the districting you're living under was never decreed by the legislature, but was decreed by a court. And that was the situation here. Surely, that's a good reason, even if you adopted your general proposition.
05-204 +++$+++ 39896 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the reason I -- I slipped it in is that in my description of what I think is the current tradition, Your Honor, is we went and looked and found how many court-drawn congressional district maps have there been in this country in the last 40 years, and how many times were they redrawn by the legislature. And the answer is that if you go back between 1970 and 2000, there were 36 of them, and only two of them were redrawn in very small, technical ways, one in Hawaii where they only have two districts and then the one in Texas, which was changed in Dallas. It's not --
05-204 +++$+++ 39897 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I'd say that's a shame for the democratic process. I -- I don't like the idea that -- that there are a lot of districts out there that have never been drawn by the people, which is what the Constitution envisions.
05-204 +++$+++ 39898 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, the other thing I think about this -- this argument about that we have this -- this need to have a legislative plan is you invite an abuse of a different kind. If you -- if you say to the legislature, you can sit on your hands at the time when you have an undisputed constitutional obligation to redraw the lines at the beginning of -- of the decade, as long -- and you'll know that what that will do is it will give you the right to come along anytime you feel like it when you get your political ducks --
05-204 +++$+++ 39899 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is that the reason these lines were not redrawn at the beginning of the decade, because the majority party sat on its hands?
05-204 +++$+++ 39900 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely what happened here, Your Honor. They didn't make any serious efforts to redo it. The only person --
05-204 +++$+++ 39901 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought there was --
05-204 +++$+++ 39902 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought --
05-204 +++$+++ 39903 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I thought there -- the houses were divided. One party, one -- had one house; the other, the other. And so they were at loggerheads and they --
05-204 +++$+++ 39904 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The reality is -- and the record -- there was discussion of this at trial by Senator Ratliffe -- there was not very serious effort to do this at the time. The only person who can call a special session -- and it does take special sessions in Texas to get these lines drawn historically -- is the Governor. He declined to call any special sessions when they -- when they had a divided legislature. Of course, 2 years later, when they had unilateral control of the whole legislature, we were calling special sessions like mad to get the job done. So --
05-204 +++$+++ 39905 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the court -- even from the court's perspective, was it the same three judges that did the -- that did the plan, the court-ordered plan? And I thought that the -- the judge who presided told us in his latest opinion that they never anticipated that as being a permanent plan, and indeed, they tried to stay as close as they could to the then-existing plan.
05-204 +++$+++ 39906 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, there was some language to that effect. If you go back, though, and read the opinion that the -- the judges wrote in -- in 2001 when they actually were describing in meticulous detail their process of drawing the map, he specifically said then that they didn't follow the old lines, that they used neutral criteria like compactness and following political subdivisions, and that they -- this was not an effort to -- to come up with a map that matched the old map. The only thing that I think really fairly can be said about the court-drawn map is it did give a separate district to all of the incumbents, which is what you'd expect a court to do. They're not going to sit around and decide mutual incumbents ought to have to run against each other. And so it did have that effect, I think, of allowing some incumbency advantage to continue on. But it is -- it is not true that the -- that the court tried to keep some pattern in the map beyond that. The court specifically said otherwise in 2001 when it drew the map, and then it said in --
05-204 +++$+++ 39907 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, we're not -- we're not trying the court for a bad intent. We're looking at the effect of what it's done, and if the effect of what it's done is to leave in place something that's slanted based on -- on statewide registration in favor of the Democrats, then -- then, it seems to me, there's -- there's a ground for the new legislature to act. And -- and one -- one reason legislatures may not have redrawn plans often is because they always protect incumbents.
05-204 +++$+++ 39908 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Your Honor, the facts are that it wasn't slanted. The facts are the experts both testified from both sides at the trial that the map was fair to both parties and that it contained 20 Republican districts. And that's what the court found too in 2004. Then we have an appeal and we go back down on remand, and suddenly we're starting to hear about vestiges of gerrymanders. But the court didn't withdraw its finding of fact that there were 20 Republican districts in its own map. That's true. I mean, look at the way the votes were cast in 2002. There were 20 Republican districts in the map. The six districts that these Democrats represented who they -- who they -- the moderate Democrats that they were targeting -- the average vote for statewide office in that district was something like 65 percent -- 55 to 65 percent for the Republican candidate. I -- I looked, for example, yesterday at the -- there was an election for the Attorney General in Texas in 2002. It was an open seat, two -- two non-incumbents running against each other, two people from Austin. And the average vote for the Republican Attorney General candidate, Mr. Cruz's boss, in that election in those six districts was 62 percent for him and 38 percent for the -- the Democrat. So these were not Democratic districts. This was not a gerrymander in any rational use of the word.
05-204 +++$+++ 39909 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Smith, may -- may I ask you to comment on -- on one problem that I have with your position that has nothing whatever to do with the -- with the fact that there was a -- a judicial redrawing in the first place here? If I understand your argument, you're saying that a -- a districting that takes place prior to the report of a new decennial census, which is done for purely political reasons, maximizing political advantage, is invalid for that reason, I guess under the Equal Protection Clause.
05-204 +++$+++ 39910 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-204 +++$+++ 39911 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And yet, I take it it's also your position that if the districting is done in response to the new decennial figures so that there's a need to do something to conform to one person/one vote, that there is nothing illegitimate about political motivation, at least up to some point --
05-204 +++$+++ 39912 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-204 +++$+++ 39913 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in -- in drawing the lines at that time. How can we in principle say that the motivation which is legitimate in 1991 is somehow constitutionally illegitimate and dispositive in 1995?
05-204 +++$+++ 39914 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It seems to me that one is not saying that it's legitimate in 1991. One is saying that in redistricting, which is a messy process, we tolerate a lot of mixed motives. We tolerate some consideration of race. We -- we ask for some consideration of race. We tolerate some consideration of politics. But that is dramatically different under the rational basis test from a law that is passed solely for political reasons because it doesn't have the other kinds of interests that are being promoted and protected in -- at the beginning of the decade. And so there's a drastic difference, it seems to me, under the rational basis analysis between a law which serves a lot of purposes, some governmental and public, some of them private, and -- and not legitimate bases for governmental action.
05-204 +++$+++ 39915 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you're making the assumption that a mid-decennial districting is not interested in compactness, it's not interested in counties, it's not interested in keeping a university within one -- within one district. That's -- that's just simply not true.
05-204 +++$+++ 39916 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, the -- the fact here is that the only reason they decided to change was for partisanship. That's what the district court found as a matter of fact. Now, the other legal requirements of -- of the map that are -- give you the -- the legitimate bases for redrawing the lines at the beginning of the decade were already satisfied because such a map already existed. And as this Court said in -- in Growe, the -- the court-drawn map, in some sense, changes the status quo. You have to say what are the additional governmental interests that are -- that exist and justify going through this process again and changing that map, which already is fully lawful, has been affirmed by this -- this Court as lawful.
05-204 +++$+++ 39917 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But your answer, both to the Justice Kennedy and -- and to me, ultimately comes down, I guess, to saying that political partisanship alone, undiluted, unadulterated by any other motivations, is per se wrong.
05-204 +++$+++ 39918 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's -- it's not a basis that can justify public conduct, State action. If -- if it was, then it would be perfectly okay, I suppose, to have government subsidies for some parties and not for others, or to have -- let some people use public facilities and not others.
05-204 +++$+++ 39919 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. Let's -- let's assume that the -- that the partisans who do the mid-term redistricting candidly say, we are doing this for partisan reasons, but we recognize limits on what we can do. And the limits are the traditional ones, compactness, et cetera. Let us assume that there is, in fact, evidence of a good faith effort at least to conform to those districting principles. Under those circumstances, is the mid-term redistricting equally illegitimate?
05-204 +++$+++ 39920 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The question I think you need to pose is what is the justification for doing anything, not -- not for any particular line --
05-204 +++$+++ 39921 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that may be, but how about the question that I posed? (Laughter.)
05-204 +++$+++ 39922 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it seems to me, Your Honor, that if -- if the -- I was trying to get to an answer. I really was.
05-204 +++$+++ 39923 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
05-204 +++$+++ 39924 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It seems to me that if -- if you can -- if they can legitimately and -- and plausibly say, we are -- we -- we decided to redraw the old map because it was so departed -- it's so departed from these important principles and values like compactness and respect for subdivision -- so if that's our reason --
05-204 +++$+++ 39925 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. I'm -- in a way, I'm making it easy for you. I'm saying, look, they're -- they're saying we think we can get a better deal for our party, but we are respecting these districting principles. Equally illegitimate?
05-204 +++$+++ 39926 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think so, Your Honor. If all they're saying is we -- we didn't go as crazy as we could have, but the only reason we did anything is because we want more seats, but we could have done even worse, that seems to me not a -- not a justification for action, but merely a -- a decision not to -- to be more political than purely political.
05-204 +++$+++ 39927 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The difficulty I have with that is that it is -- it is impossible -- I think you would agree. It is impossible -- and may, indeed -- let's assume undesirable -- to take partisanship out of a political process. And -- and if partisanship pure and simple, even though subject to the discipline of districting principles, is -- is illegitimate, then I don't see why that does not imply the illegitimacy of any districting at any time.
05-204 +++$+++ 39928 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, our -- our submission is it makes a difference when it's pure rather than merely one of the many things that is going on. If I could take a few minutes just to talk about our section 2 argument with respect to the African American --
05-204 +++$+++ 39929 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Before you do that, may I just ask one short question?
05-204 +++$+++ 39930 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure.
05-204 +++$+++ 39931 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You've mainly attacked the plan as a whole in your briefs. And I'm wondering. I often look at particular districts, as you may know. Are there residents of districts 23, district 24 that are plaintiffs?
05-204 +++$+++ 39932 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We have plaintiffs in every district, I think, on the whole map, certainly any district that would raise a concern under --
05-204 +++$+++ 39933 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But they're not identified easily --
05-204 +++$+++ 39934 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, but -- but I think that there -- there was a -- in the complaint there's allegations about where each of these people live, and I think that -- that we were very careful to make sure anything we were talking about specifically, such as, for example, district 24 in Dallas, we had -- we had plaintiffs. The -- the list is quite long. So there is standing, I think, for all of those arguments. Now, on -- on district 24, our submission is that under section 2, there ought to be protection for districts where the minority group does not have an absolute majority but where the evidence shows that it can effectively elect a candidate of its choice in -- in concert with a -- a predictable group of Anglo or sometimes Hispanic crossover voters, and that we think on the facts of this case, this was such a district because the African Americans in every case were a large majority of the voters in the Democratic primary and the Democratic nominee, in virtually every case, is elected in this district regardless of what -- what race that person may be.
05-204 +++$+++ 39935 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What was the percentage of the African American voters in the district as a whole?
05-204 +++$+++ 39936 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Citizen voting age population is 26 percent, Your Honor. The --
05-204 +++$+++ 39937 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- but if -- if your -- if your test is that section 2 ought to be opened up to any racial group that could influence an -- an election, I don't see the limits on your principle.
05-204 +++$+++ 39938 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's not our -- our test, Your Honor. Our test is they -- they have to control the election, and --
05-204 +++$+++ 39939 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So that if you had a situation where it's 40 percent one group, 40 percent another group, and 20 percent where the 20 percent controlled who was elected by siding with one group or the other group, then you would say that that was an influence district for that small -- the smallest group in the district?
05-204 +++$+++ 39940 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I don't think that would work because I think the way we -- we view what you have -- you -- the group has to be able to decide who's going to be on the ballot, and then you want to see whether there's enough crossover voting to --
05-204 +++$+++ 39941 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. Suppose there's a primary where it works that they can get on the ballot. Suppose we're looking at the general election.
05-204 +++$+++ 39942 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If -- if that group gets to decide who gets on the ballot --
05-204 +++$+++ 39943 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Accept the hypothetical.
05-204 +++$+++ 39944 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. If that group has -- has picked who gets on the ballot and their choice always wins the general election, I think that's not an influence district. That's -- that's --
05-204 +++$+++ 39945 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is the answer? I mean, you've read the briefs. The obvious reply to that is there are many, many districts in the United States where African American voters have a big influence on the Democratic primary.
05-204 +++$+++ 39946 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-204 +++$+++ 39947 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ A lot. And there are a lot where the Democrat wins. So if your principle is accepted, says the other side, that means that any district that's drawn here to favor the Democrats can't be changed, but all the ones that favor the Republicans can be changed. Now, if that argument is right, it's hard for me to accept, but that's a neutral principle of constitutional law. So I want to see what -- what your response is to that.
05-204 +++$+++ 39948 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think there are a number of limiting principles that apply here that -- that suggest we're not just coming in here and asking for the Voting Rights Act to become the -- the pro-Democratic act --
05-204 +++$+++ 39949 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Obviously you're not. That's why I would like --
05-204 +++$+++ 39950 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and --
05-204 +++$+++ 39951 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you to say what specifically the answer to that argument is.
05-204 +++$+++ 39952 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the -- first of all, there are not that many districts in which African Americans control the Democratic primary and then have predictable ability to see that person elected in -- in the general election. Where that is the truth, they then have representation of the kind that I think is valuable under section 2 of the Voting Rights Act. Now, of course, there are going to be limits. One of them is De Grandy. They -- they only have rights up to a proportional level of their proportion of the population. And by not respecting -- not protecting this kind of district, what you do is, in fact, condemn the people, the African Americans in Texas, to less than proportional representation because there is no other way to give them a district in which they have any possibility of -- of participation in the process and electing a candidate of their choice. This is the only place in Texas where it can be done. They're -- they are more than an eighth of the population, citizen voting age population, and they're only getting 3 districts out of 32 because the State of Texas chose to eliminate this district.
05-204 +++$+++ 39953 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This would be at -- least your criterion, whether we accept it or not, would -- would be more administrable if we're dealing with the elimination of a district than if we were dealing with the question of creating one. Do you take the position that the NAAC brief does that there really should be distinct criteria, depending on whether you're asking to create something new or preserve something which has been in place?
05-204 +++$+++ 39954 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I perhaps have more faith in the ability of courts to predict the future than -- than that brief does, but -- but I certainly can imagine a rule where the court says, we're going to require that there be experience, not simply predictions by experts, in order to create a district below the majority level. That would be an administrable rule which would give -- at least give some protection in situations of the kind that we -- we face here. If I could reserve the balance of my time, Your Honor.
05-204 +++$+++ 39955 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Smith. Ms. Perales.
05-204 +++$+++ 39957 +++$+++ FALSE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: I will begin by arguing that Texas violated the Equal Protection Clause by making excessive use of race in its changes to district 23. After removing 100,000 Latinos from district 23, the State used race to craft a razor-thin Latino majority. Abandoning political data, the State used census block redistricting to achieve 50.9 percent Latino voting age population.
05-204 +++$+++ 39958 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In 23.
05-204 +++$+++ 39959 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In district 23, Your Honor. Thus, the State used race, as we contend, not only to protect an incumbent, but to give the false impression of Latino support for that incumbent.
05-204 +++$+++ 39960 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Focus for a minute just on the -- what we can call the removal, the drawing of the lines to exclude some Latino voters. Just focus on that, not the later justification. The district court found that this was for political reasons, not racial reasons, even though it was a largely racial group that was removed. Do you attack that finding as clearly erroneous?
05-204 +++$+++ 39961 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Kennedy, we do attack that finding as clearly erroneous. This case is really the flip side of Easley v. Cromartie because in this case Latino voters supported Republican and Democratic candidates. As the State asserts vigorously, Latino voters voted significantly and substantially --
05-204 +++$+++ 39962 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I interrupt you just with one -- one question on district 23? Regardless of what the intent of the parties was, I'm just wondering why is the district court's finding on intent relevant to the section 2 issue when the test under section 2 is results?
05-204 +++$+++ 39963 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Stevens. The -- the test under section 2 is results, and that goes --
05-204 +++$+++ 39964 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that even if the intent was primarily political, it would still violate section 2.
05-204 +++$+++ 39965 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and we argue in our brief exactly that. But we hope today to focus in oral argument at least first on the Fourteenth Amendment violation, which is the intentional use of race both as intentional vote dilution, as well as the analytically distinct claim under Shaw v. Miller. With respect to the question whether Latino voters voted with such a high correlation -- and that's the phrase used from Easley v. Cromartie -- whether there was such a high correlation between Latino voters and Democratic voters, particularly in district 23, to justify removing them because of their race and then saying that they were Democrats, that nexus simply doesn't exist under the facts of this case. Besides the State's arguments and -- and the many assertions that it makes with respect to Latino voting support for Republican candidates and especially Congressman Bonilla, we also have Latino voting for Bonilla that rises and falls. If Latinos were close adherents to the Democratic ticket, you wouldn't see fluctuating support for Congressman Bonilla. You would see low and steady support if Latinos were Democratic voters. Instead, we see something very different, which is Congressman Bonilla gaining support in the Latino community within his district up until 1996 where the peak is 30 percent Latino support and then a steady decline over a series of elections, ending in 2002 with only 8 percent, as the district court found, Latino support for Congressman Bonilla. This is not --
05-204 +++$+++ 39966 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does that undermine the assumption that there's -- they're voting as a bloc? 30 percent of the group is voting for one candidate. Is that sufficient to establish a voting bloc?
05-204 +++$+++ 39967 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Mr. Chief Justice. Under section 2's question with respect to racially polarized voting, we would contend that voting as a bloc 70 percent or subsequently higher than 70 percent to 90-92 percent is enough under section 2 to satisfy the test whether Latinos are voting cohesively. Congressman Bonilla has never been able to garner a majority of Latino support, not more than 30 percent. But with respect to a somewhat different question, which is whether partisanship and race correlate so highly in district 23, that you can remove Latinos and in the hopes of being able to take the Democratic index down, we say that that kind of voting is not tight enough. In Easley v. Cromartie, of course, the Court found that African American voters voted 95 to 97 percent for Democratic candidates across elections.
05-204 +++$+++ 39968 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't understand. Does this go to motive or result? I mean, what if I'm -- I'm stupid and I think there's the correlation and I remove it for that reason? I'm not removing them for racial reasons. I'm removing them because I want to remove Democrats. And you're saying that if I have made a mistake about how solidly they vote Democratic, that turns my validly non-racial decision into a racial decision?
05-204 +++$+++ 39969 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court made clear in Bush v. Vera that the State may not make exactly the kind of assumption, Justice Scalia, that you described. The -- the Court held in Bush v. Vera that you cannot use race as a proxy for partisanship. You cannot make that assumption. So if the State --
05-204 +++$+++ 39970 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but -- but that was because it was deliberate in that case, and that's not the hypothetical that Justice Scalia has posed.
05-204 +++$+++ 39971 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this case, we contend that the State removed Latino voters from district 23 because they were Latino and that --
05-204 +++$+++ 39972 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that's not the hypothetical that was posed to you by the Justice.
05-204 +++$+++ 39973 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That if the State --
05-204 +++$+++ 39974 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm assuming --
05-204 +++$+++ 39975 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ As I -- as I understood it.
05-204 +++$+++ 39976 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- they're removing them because they're Democrats, but I'm wrong about that.
05-204 +++$+++ 39977 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Then it is still wrong to take out 100,000 Latinos using that assumption. I mean, the -- the act that was done was to slice through the most Latino county in the United States, 95 percent Latino. The people were not removed anywhere else. Clearly, the State removed Latinos from this district and then said, well, we did it because we were aiming for Democrats.
05-204 +++$+++ 39978 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But is it -- is it wrong under the Equal Protection Clause or is it wrong under section 2?
05-204 +++$+++ 39979 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's wrong under both, we would argue in our brief.
05-204 +++$+++ 39980 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. But on Justice -- Justice Scalia's hypothesis, there is no intention to remove Latinos as Latinos. And maybe the answer to that is if you're removing Latinos, it does not matter whether your motivation is invidious or not. I don't know whether that's your position. But it -- if that's not your position, then I think there's got to be a difference between the -- the Equal Protection Clause analysis and the section 2 analysis.
05-204 +++$+++ 39981 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We contend that in this case the removal is invidious because it was Latinos that were identified and taken out and then -- for incumbency protection, similar to what --
05-204 +++$+++ 39982 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, is that because there were no other Democrats who could have been identified and taken out?
05-204 +++$+++ 39983 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's no testimony that the State considered ever taking out anybody else but the people in Webb County.
05-204 +++$+++ 39984 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought you said that the county was 92 percent Latino or something like that.
05-204 +++$+++ 39985 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Scalia.
05-204 +++$+++ 39986 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, how can you -- how can you possibly take out any substantial number of Democrats without taking out Latinos?
05-204 +++$+++ 39987 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly our point, that the State removed --
05-204 +++$+++ 39988 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's my point too. (Laughter.)
05-204 +++$+++ 39989 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Moving to what I -- the point --
05-204 +++$+++ 39990 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can I -- can I -- I don't understand -- I think your argument is at cross purposes. I mean, the one point -- and you're making the point that the Democrats do not vote overwhelmingly for the Democratic candidate. They voted as much as 30 percent for Bonilla. But the Voting Rights Act is concerned with whether or not a group voting ethnically as a bloc can vote for candidates of its choice. Well, if they're 30/70, it's not -- it's hard to think of them as having a clear candidate of choice. So what does it matter whether they're in or out?
05-204 +++$+++ 39991 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree, Mr. Chief Justice, but under the facts of this case, what had happened by 2002 was something very, very different. After 1996, when Mr. Bonilla garnered the high of 30 percent among Latino voters, not -- not in his district but among that group --
05-204 +++$+++ 39992 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, the percentage goes up, the percentage goes down.
05-204 +++$+++ 39993 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-204 +++$+++ 39994 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It depends on who's running against him. At the low point, there was a popular Hispanic candidate running against him in some of those elections. But it seems to me that the predicate for coverage under the Voting Rights Act that a particular group is being denied the opportunity to elect a candidate of its choice doesn't even come into play if you're right that the -- the vote is split over time, depending on the circumstances in a particular election.
05-204 +++$+++ 39995 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Mr. Chief Justice, because this is bloc voting at rates of 70 percent or higher, and after 1996, that 70 percent bloc went to 80 percent and then it went to 90 percent. And as the voters became increasingly disenchanted, I suppose, with the incumbent, that decline was steady. It didn't fluctuate up and down. It was going down and it went down even farther. Mr. Bonilla was always opposed by a Latino candidate in each of his general elections that he's had since he's been elected. So that hasn't really been a factor for the voters. But as they became more cohesive and they reached 55 percent of the -- the registration in the district, they were poised to elect their candidate of choice.
05-204 +++$+++ 39996 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, then -- well, but then -- and this is why I say it's an argument at cross purposes. If you're right about that, then the assumption that the Hispanic voters are going to be voting Democratic is not one that was unfounded, which I thought was your -- your first point.
05-204 +++$+++ 39997 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would contend, Mr. Chief Justice, that voting against Congressman Bonilla doesn't make you a Democrat. And it, in fact, highlights that the State was seeking voters, Latino voters, who had withdrawn their support for Congressman Bonilla as opposed to just seeking Democrats because you can vote against Congressman Bonilla and still vote Republican in other races, as Latinos did. And you could have been a former supporter of Congressman Bonilla. It doesn't make you a Democrat in that sense that race and partisanship are completely interchangeable so that the State can scoop in and grab 100,000 people of the same race and then say later, well, we were taking out Democrats.
05-204 +++$+++ 39998 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's not just the State that's saying it, though. You have a district court finding that ethnicity was not the predominant factor, that politics was the predominant factor. Maybe -- as Justice Scalia suggests, maybe they were right, maybe they were wrong, but the point was that it was being done for political purposes not for ethnic purposes.
05-204 +++$+++ 39999 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We agree, Mr. Chief Justice, that the end goal was political in the sense of incumbency protection, but a State may not use race as the means to the end of protecting an incumbent. What happened here was that the only group of voters who had shifted their support away from Congressman Bonilla were Latino. Democrats had never voted for Congressman Bonilla. The problem inside this district was not a problem of Democratic voters. It was Latino voters who had supported him and withdrawn.
05-204 +++$+++ 40000 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, can -- can the State use race as the means to an end of electing a new candidate that the race wants? And what should be the difference?
05-204 +++$+++ 40001 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It should turn on the candidate of choice --
05-204 +++$+++ 40002 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, it sounds like you're going to say race cannot be used as this basis, but how can race be used not to protect an incumbent but to allow the group to choose the representative of its choice and then reelect him every year?
05-204 +++$+++ 40003 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, district 23 was created by the Balderas court pursuant to a finding under section 2. So it was a remedial district under section 2 when it was created in 2001. And in 2002, when it was used as a remedial district, it -- it elected a Latino-preferred candidate in 13 out of 15 elections, according to the State's expert, and came very close to unseating Congressman Bonilla. The State's response was essentially to punish Latino voters for voting against Congressman Bonilla by slicing them out of the district. So the State used race to achieve its end of -- of incumbency protection.
05-204 +++$+++ 40004 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if the -- if the objective is just to get rid of voters who vote against Congressman Bonilla, why is that an equal protection violation? It's not done for -- for race or ethnicity, but just to get rid of voters who vote against him.
05-204 +++$+++ 40005 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the group of voters who had withdrawn their support were Latino voters. The district court discusses the -- the interrelationship of these phenomenon in its opinion at jurisdictional statement appendix 128 when it says, the State acted to shore up the incumbency of Congressman Bonilla, and the next sentence is, his support among Latino voters had dropped to 8 percent. It was, in fact, the -- the voting behavior of Latinos as opposed to anybody else who had caused the incumbency crisis, and it was Latinos as Latinos who were removed from the district. At the same time, however, the redistricters sat down and figured out exactly how many Latinos they wanted to leave inside this district to achieve a bare, razor-thin Latino voting age majority population, and that was done to give the impression of Latino support for the incumbent. The chief redistricter --
05-204 +++$+++ 40006 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is that -- and what relevance does that have? What provision of the Constitution prevents you from leaving a majority of one group in a district to create the impression that the district supports a particular candidate?
05-204 +++$+++ 40007 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Fourteenth Amendment, Mr. Chief Justice, race may --
05-204 +++$+++ 40008 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's what the Fourteenth Amendment was passed for, to avoid creating the impression that a particular group supports a particular candidate?
05-204 +++$+++ 40009 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court has held that race may not be used for its own sake in redistricting, and here race was used most gratuitously and cynically to make sure that the State could say a majority of Latinos in district 23 support Congressman Bonilla. The chief redistricter in the House, Representative Phil King, testified -- and this is expressed motivation -- that they sought to maintain a 50 percent Latino voting age majority in the district while making it safer for Congressman Bonilla, which involved pulling 100,000 Latinos out. Similarly --
05-204 +++$+++ 40010 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And how many -- what percentage would they have shifted from making it look like a Hispanic opportunity district with about 51 percent to when it would actually be one? What percentage does it shift from being looking like one to being one, both above a majority?
05-204 +++$+++ 40011 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, yes, Mr. Chief Justice, but -- but quite a distance. The -- as the Balderas court --
05-204 +++$+++ 40012 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But what's the number?
05-204 +++$+++ 40013 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The voting age population for district 23, as created by the Balderas court, Your Honor, was a great deal higher. It was 63 percent, and that was what was able to give the 55 percent voter registration --
05-204 +++$+++ 40014 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is that your number? It has to -- anything short of 63, it's just looking like it? I mean, really, you're asking us to draw a very fine line between a -- in each case a majority Hispanic voting age district, but in one case, it's a constitutional violation and in the other case, it's -- it's required by the Voting Rights Act. So what is the magic number between 51 and 63?
05-204 +++$+++ 40015 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would argue that race cannot be used for its own sake, that if you're going to put people together into a Latino majority district, it should be to meet a purpose, for example, to create an opportunity district under the Voting Rights Act.
05-204 +++$+++ 40016 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What's the number?
05-204 +++$+++ 40017 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be -- well, depending on how many people it takes in that particular district to elect a candidate of choice. In this case it was 63 percent. It might be a different number for a different district. But your --
05-204 +++$+++ 40018 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So if this district were drawn with 60 percent, you would say that's just to make it look like a Hispanic district?
05-204 +++$+++ 40019 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
05-204 +++$+++ 40020 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. So what's the number? It's -- it's somewhat more than 51 percent because you're saying that's a constitutional violation, and I want to know how many more it takes before it becomes what's required under the Voting Rights Act.
05-204 +++$+++ 40021 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Maybe I can answer the question by going around to the court's finding, which was that district 23 was created not as a Latino opportunity district, that it would not operate to offer the opportunity to elect the Latino preferred candidate. And the -- and the district court found this on page 145-146 of our appendix to the jurisdictional statement. And in that same paragraph, they said, but it has a political nuance that Congressman Bonilla will be elected from a Latino majority district.
05-204 +++$+++ 40022 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm just trying to get a number. If you're asking us to rule on a constitutional violation, I'm asking to find out what the number is that changes it from a political nuance to a Hispanic opportunity.
05-204 +++$+++ 40023 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That number would be the number that shows Latinos have the opportunity to elect their candidate of choice. It will be a different number for each district, but it would always be in the evidence of the case because the analysis is done on different districts. Here, all of the experts agreed that district 23 had been created so that it would not elect a Latino candidate of choice, but that the State testified that it wanted to keep it voting age majority, that they did so because they wanted Henry Bonilla to run from a Latino majority district. The State abandoned traditional redistricting criteria to do so, redistricting at the bloc level and splitting 6 election precincts out of 51 in Webb County, which is wholly unnecessary even to equalize population in either district. There is no reason for the State --
05-204 +++$+++ 40024 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would it have been better --
05-204 +++$+++ 40025 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to have done that.
05-204 +++$+++ 40026 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- would it have been better in your view if they had excluded more Hispanics so it didn't look like a Hispanic opportunity district?
05-204 +++$+++ 40027 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the State certainly could have moved Webb County whole out of the district. It depends on how they would have done the overall --
05-204 +++$+++ 40028 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And -- and that would have been preferable. It would have been preferable to you if it was, say, 45 percent Hispanic rather than 50.8, or whatever it was.
05-204 +++$+++ 40029 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, it -- it just doesn't hang on a particular number. It -- it turns on whether or not the district is an opportunity district, and if it isn't an opportunity district, why is the State sitting down and using race for its own sake to be able to say we got 50.9 percent Latino voting age population? We managed to zigzag that boundary through the streets and -- and through the neighborhoods of the City of Laredo so that we could say it was a Latino majority district.
05-204 +++$+++ 40030 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, isn't -- isn't one answer that we were doing it, number one, because we wanted to protect the incumbent and we also had to use race to avoid a section 5 problem and a section 2 claim? You've got to use race for those purposes.
05-204 +++$+++ 40031 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, under section 5, the State went ahead and created district 25 as the offset because it seemed fairly clear that district 23 had been dismantled to such a degree it was no longer going to be able to be used for section 5 purposes. Similarly, under section 2, the State saw that it was terribly vulnerable and so again tried to make an offset district which caused its own problems. So the use of race here to achieve the 50.9 percent voting age majority was not to satisfy the Voting Rights Act, either section 5 or section 2.
05-204 +++$+++ 40032 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you could have used that reasoning to create a district in the first place, but you cannot use that reasoning to create an offset district in the second place at the same time that you're trying to protect an incumbent. I think that's what you're saying.
05-204 +++$+++ 40033 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To create a district with 50.9 percent voting age population here in this part of the State, it would be obvious that you weren't going to yield an opportunity district.
05-204 +++$+++ 40034 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In other words, you're saying that would be implausible as a section 2/section 5 justification, regardless of when you're doing it. Is that --
05-204 +++$+++ 40035 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-204 +++$+++ 40036 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
05-204 +++$+++ 40037 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, most certainly. This case represents an egregious use of race in redistricting. Without the Equal Protection Clause to protect minority voters, States will have free rein to use race to manipulate not only electoral outcomes, as it did here, but also the complexion of a district in order to be able to express some kind of symbolic --
05-204 +++$+++ 40038 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, of course, you want them to use race to manipulate outcomes. It's just sometimes.
05-204 +++$+++ 40039 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You may answer.
05-204 +++$+++ 40040 +++$+++ TRUE +++$+++ MS. PERALES +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. To serve a compelling State interest, to comply with the Voting Rights Act, yes, Justice Scalia, it is appropriate. It was not appropriate here.
05-204 +++$+++ 40041 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Ms. Perales. Mr. Cruz.
05-204 +++$+++ 40043 +++$+++ FALSE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The central issue in resolving these various challenges to mid-decade redistricting is determining which institution is constitutionally vested with the primary responsibility for redistricting. Elected legislatures or Federal courts. In Texas, for the first time in 12 years, the legislature acted to adopt a congressional redistricting map. That map, in turn, replaced one of the most profoundly anti-majoritarian congressional maps in the country with a map that reflects the demonstrated preferences --
05-204 +++$+++ 40044 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But may I ask, General Cruz, are you talking about replacing the court-ordered map or the preceding Democrat gerrymandered map?
05-204 +++$+++ 40045 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The legislature replaced the court-ordered map, but the court found as a factual matter that the court-ordered map, in the court's words, quote, perpetuated the 1991 Democratic Party gerrymander, and that was the court characterizing its own map with the same judges.
05-204 +++$+++ 40046 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but you don't think it really perpetuated the same degree of gerrymandering that was present in the earlier map, do you?
05-204 +++$+++ 40047 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the court's map, under the --
05-204 +++$+++ 40048 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm asking you.
05-204 +++$+++ 40049 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-204 +++$+++ 40050 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think it did? Do you think --
05-204 +++$+++ 40051 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, we do.
05-204 +++$+++ 40052 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the court-ordered map is just as bad as the Democratic map?
05-204 +++$+++ 40053 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The district court found that it had blunted some of the most egregious lines, but under the district court's map, 28 of 28 incumbents were reelected. So the identical outcome was yielded.
05-204 +++$+++ 40054 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But is your opponent correct in saying that in six of those districts, the Democrat won even though the district was majority Republican?
05-204 +++$+++ 40055 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that is correct, and then the district court --
05-204 +++$+++ 40056 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does that sound like a gerrymander?
05-204 +++$+++ 40057 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it depends. The districts were drawn such that the Democrats who were running were incumbency. And the reality of congressional elections is that incumbency is a tremendous advantage, and in the face of incumbency --
05-204 +++$+++ 40058 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. I was going to say I -- if I were gerrymandering, I would absolutely want to leave majority other party districts in which the people from the other party were voting for a candidate from my party with some regularity. I'd want to do that. That's exactly what I'd want a gerrymander to do.
05-204 +++$+++ 40059 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that's exactly right. These districts were drawn to protect incumbents. It is notable that if one looks on a national level, the 2001 map drawn by the court led to the most anti-majoritarian results of any of the 50 States in the Union. There were only two other States with more than five Members of Congress that saw a minority of voters electing a majority of the delegation, and those were Illinois and Tennessee. In each of those, 49 percent in Illinois elected one extra seat to Congress; in Tennessee, 48 percent. In Texas, by contrast, 45 percent of the two-party vote and 41 percent of the overall State vote elected not just a one-seat majority, but a two-seat majority. And so on any national level, the prior map was the most profoundly anti-majoritarian. Now, this Court resolved in -- in Vieth that majoritarianism is not a constitutional mandate, but that being said, as Mr. Smith characterized in Vieth, he characterized the fundamental principle of democracy -- and this is Mr. Smith's characterization -- is the principle that a majority can elect a majority of the delegation. And as this Court concluded in Gaffney v. Cummings, achieving political fairness, achieving a rough sense of proportionality, such that a majority can elect a majority of the delegation, is not only legitimate, it is salutary. It is --
05-204 +++$+++ 40060 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. So I -- I wrote an opinion, as you know, where I was agreeing with you on that, and I wonder if -- if then the thing to do would be to say, yes, indeed, a legislature can redraw a map to prevent a minority of the voters electing a majority of the congressional delegation. But when they do that, there has to be some reasonable assurance that it works the same way for both parties. I mean as a standard. I thought my standard worked before. I guess there wasn't that much agreement, but -- but -- (Laughter.)
05-204 +++$+++ 40061 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- from the point of view of -- of taking that standard, which you agree with, I'm glad to say, apparently, and modifying it to be sure it works out the same way for both.
05-204 +++$+++ 40062 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, under the standard articulated in your opinion in Vieth, in our judgment the result would be a straightforward affirmance here because the map that was adopted is precisely what was advocated in Vieth of a majority of the population electing a majority of the delegation. That being said, the question here is not whether that is required. Indeed, it is ironic. In 1992 the Republicans in Texas brought a political gerrymandering challenge to the predecessor map here, and that map was rejected -- that challenge was rejected under Bandemer, and the district court in 1992 told the Republican plaintiffs -- said even though this may be tilted against you, there is nothing to prevent you, over the ensuing decade, from running candidates, from building support, and from eventually taking control by electing your candidates to the machinery of government and adopting a map you deem fair. That -- those words of the district court prove prescient because that is precisely what happened over the ensuing decade, and it is equally true today. There is nothing in Texas to prevent the Democratic Party from doing the exact same thing over the ensuing decade if they can command a majority of votes at the polls.
05-204 +++$+++ 40063 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you this question? Assume you're correct that as a whole the plan is well-justified and makes gains and so forth. Does that necessarily mean that every district within the -- the plan is immune from constitutional attack?
05-204 +++$+++ 40064 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course, it does not, and there are a variety of district-specific attacks. The plaintiffs have framed their partisan gerrymandering attack as one that focuses on the map as a whole. And -- and the --
05-204 +++$+++ 40065 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I understand.
05-204 +++$+++ 40066 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and the reason for that is that in the Vieth decision, Justice Kennedy's concurrence was the controlling concurrence, and it set out a standard for subsequent partisan gerrymandering cases that litigants should find a, quote, substantive definition of fairness in districting that commands general assent. Rather than attempt to meet that challenge, the plaintiffs have refused to discuss effects at all, and that's not by accident because any assessment of effects would yield that the current plan is more fair than the predecessor.
05-204 +++$+++ 40067 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the -- the next question I wanted to ask you is that if it is possible there can be a single-district challenge, what is the justification for the -- the cracking of district 24, which was a majority Democratic district before, into five different districts, none of which would elect a Democrat.
05-204 +++$+++ 40068 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The legislature made a policy judgment, and under the decision --
05-204 +++$+++ 40069 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But is it -- is it defended by anything other than political motivation?
05-204 +++$+++ 40070 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There were a host of --
05-204 +++$+++ 40071 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean in district 24.
05-204 +++$+++ 40072 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There were a host of judgments about the multiple districts that district 24 was broken into, and the district court found, for example, that Representative Grusendorf wanted the City of Arlington contained in one single district. There were a whole host of specific motivations about the surrounding districts that were drawn. Indeed, the district court said on remand that appellants' argument ignores, as it must, the reality that the lines are infused with the myriad mixtures of local politics and accommodations, often inconsistent with overall objectives of partisan gains. That was the district court's finding on remand, that there are a host of decisions here that have nothing to do with partisan gain, that have to do with drawing a map that are the constitutional responsibility of a legislature in drawing a redistricting map. Appellants frame their basic challenge on partisan gerrymandering because they cannot look at effects, because any examination of substantive effects yields the conclusion that the current map is much more fair than the prior. They disavow any examination of effects. Instead, they frame it as solely partisan intent, which has never been the standard under this Court's precedents. But even under that standard, they base it on a simple syllogism that is found nowhere in the Court's precedents, a syllogism that says because there was an extant legal map in place, the redistricting was unnecessary. And so anytime there is a court map, it is unnecessary redistricting. The problem is appellants raise a false dichotomy because every legislative redistricting is voluntary. Whether it is Texas in 2003 or Pennsylvania in 2001, the legislatures face a binary choice. They can act and adopt their legislative policy preferences, or they can not act, in which case they know with an absolute certainty that a court-drawn map will govern the election that follows. In Pennsylvania, to be sure, it was a map that would be drawn subsequently, but the decision is the same. Does the legislature act to embody its preferences or does it allow a court-drawn map to govern the elections in the States? And I would note the consequence of the rule that appellants are urging is that it would create an enormous incentive for the minority party in every State to attempt to deadlock the system, to shut down at the beginning of the decade any effort to adopt a map because if they're able to deadlock the system, if they are able, as happened in Texas, to flee the State and no map passes, the consequence of that -- they would know for certain under appellants' rule -- is a court will draw the map. And under the Upham standard, the court map will reflect the preexisting policy judgments of the predecessor legislature. So any minority party has an incentive. If they can stop it from happening at the beginning of the decade, they have an incentive to seek a better map.
05-204 +++$+++ 40073 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ A -- a minority who was a majority.
05-204 +++$+++ 40074 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Indeed, yes. That -- that is predicated upon a preference for a decade ago rather than what would be adopted now. The Framers chose political checks for the problem of partisan gerrymandering. They assigned principal responsibility to elected State legislatures whom they certainly knew would care a great deal about politics, and they assigned supervisory authority to another elected legislature, Congress. The appellants point to a host of perceived policy problems about the specter of seriatim redistricting of legislatures coming back every 2 years and tweaking the line here and tweaking the line there. To the extent that is a problem, Congress is the institution constitutionally authorized to address it, and there is no indication that there is a looming threat of seriatim redistricting. It didn't happen here. It was the first time in 12 years the legislature had acted.
05-204 +++$+++ 40075 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ General Cruz, could I ask you another district-specific question? Because I want to get it on the table and let you explain it to me. Focusing on district 23 for a moment, assuming for the moment -- and I -- I know you probably disagree with this but -- that the results of the redrawing of district 23 violated section 2, would you say that it would be a defense to that violation that the motivation was actually non-racial but purely political?
05-204 +++$+++ 40076 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As the hypothetical is -- is asked, the answer would be no. But -- but the difficulty is if the motivation -- if there's a violation of section 2, a political motivation does not excuse it.
05-204 +++$+++ 40077 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Not a defense. And the second question for me is that if there were a violation in district 23 of section 2, could it be cured by creating a district -- the district farther to the east. I forget the number. 25 I guess it was. Would that be a cure in your -- in your judgment?
05-204 +++$+++ 40078 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Court has concluded before --
05-204 +++$+++ 40079 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Given what the Court said in Shaw II.
05-204 +++$+++ 40080 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, right, that -- that a -- a section 2 violation in one area cannot be corrected with a discrete change in a different area.
05-204 +++$+++ 40081 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
05-204 +++$+++ 40082 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ However, in De Grandy, the Court also said that the assessment is the totality of circumstances in the region under assessment. And in the totality of circumstances, the district court made factual findings against the plaintiffs that they cannot demonstrate were clearly erroneous. Indeed, that -- that is the problem with all of the district-specific claims that all of the sets of plaintiffs have brought is that this was tried in a full trial. The district court took testimony, made credibility determinations --
05-204 +++$+++ 40083 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Except for the fact the district court really didn't find a violation in section 2. They didn't quite, as I'm suggesting, say, well, given a violation on section 2, can we cure it and have a defense by what we do in -- in district 25. And I don't think De Grandy is an answer to that, and I'm not quite sure whether you said yes or no on my question.
05-204 +++$+++ 40084 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If they are wholly different areas --
05-204 +++$+++ 40085 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-204 +++$+++ 40086 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the Court has concluded no.
05-204 +++$+++ 40087 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-204 +++$+++ 40088 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If they are --
05-204 +++$+++ 40089 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So the argument -- the question then would be whether district 25 is a wholly different area from district 23.
05-204 +++$+++ 40090 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
05-204 +++$+++ 40091 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And what do we look at to determine that? I know what we said in De Grandy, but I mean how -- I mean, you talk about the south and west Texas. I mean, on the other hand, 23 and 25 are actually not that close together. So how do we know that we should be looking at all the way from El Paso to the Gulf, as opposed to a narrower area?
05-204 +++$+++ 40092 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They are not that relatively close together, but -- but that is because this region of Texas is -- is vast and -- and relatively lightly populated. And so district 23, for example, runs 800 miles in length because you've got miles and miles of -- of desert land and open ranch land with very low population. The way the Court did it in De Grandy, which is also the way the Court should do so here, is to look at what the parties agreed to and how they litigated the case. In this case, everyone litigated the district 23 section 2 claim with a focus on south and west Texas. Indeed, what speaks volumes is that if one examines the demonstration map that the GI Forum appellants introduced, which is at their -- their appendix to their jurisdictional statement, page 241, that map only covered south and west Texas. They proposed no districts for the rest of the State. They were focused --
05-204 +++$+++ 40093 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But I didn't understand Ms. Perales' argument to concern section -- district 25 at all.
05-204 +++$+++ 40094 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It did not, and -- and, indeed, she has never joined in the racial gerrymandering claim that has been brought by the -- by the Jackson plaintiffs. Her claim has focused on -- as -- as it concerns racial gerrymandering, not that the legislature did too much of it, but -- but in a sense that it should have done more. It should have been more aggressive in seeking to create majority minority districts. And -- and the district court has factual findings that rule against those claims.
05-204 +++$+++ 40095 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would a -- I'd like you to elaborate a little because, as I understood your claim, particularly in response to Justice Stevens, you agree that if 23 violated section 2, they can't make up for it somewhere else. You agree they can't make up for it particularly when their only way is for political reasons. But your argument is they never violated -- that 23 as redrawn didn't violate section 2.
05-204 +++$+++ 40096 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
05-204 +++$+++ 40097 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the reason that it didn't violate section 2, I want to know, is what? Because you have the three preconditions which seem to be met, and then you have some kind of -- it doesn't violate section 2 from De Grandy if, despite the preconditions, there is some kind of overall proportionality. But all that is rather unclear in my mind, and I want to know what your view of it is.
05-204 +++$+++ 40098 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are multiple reasons, Justice Breyer. As an initial matter, the district court found on page 131a of the Jackson appendix to their jurisdictional statement that CD 23 was not an effective minority opportunity district. So that's a direct finding that the -- that the old CD 23 was not an effective minority opportunity district.
05-204 +++$+++ 40099 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And why was that?
05-204 +++$+++ 40100 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the -- the data demonstrated that a majority of Hispanic voters were not able to elect their candidate of choice. Although Congressman Bonilla consistently commanded a significant percentage of Hispanic votes, he did not command a majority, and the candidate for whom a majority voted did not prevail in the congressional election.
05-204 +++$+++ 40101 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But isn't that somewhat inconsistent with the decision to reshape the district? Why did they do it then?
05-204 +++$+++ 40102 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What the legislature did -- the legislature's express intention was to shore up Congressman Bonilla's electoral chances, and -- and it was explicitly because Congressman Bonilla is a valued member of the delegation and the legislature made a judgment that they wanted to increase his margin of victory. If one --
05-204 +++$+++ 40103 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and in your view, that justification allows the creation of district 25, which has, as far as Latino population, people of quite different economic backgrounds and so forth, you know, the -- the two-ended -- the district on the two ends.
05-204 +++$+++ 40104 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We did not --
05-204 +++$+++ 40105 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That -- that to me was -- was not discussed much in your brief, but it's a serious Shaw violation. And -- and the two are really linked, 23 and 25, in this respect because it was by virtue of what it did in 23, that the State claims a right to do what it did in 25.
05-204 +++$+++ 40106 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We did not place our principal emphasis, with respect to 25, on the Voting Rights Act's concerns potentially raised by the alterations in 23. That was a motivation, but it's not our principal motivation. Our principal argument on 25 is that there are a series of factual findings the district court made that are not clearly erroneous and, indeed, we would submit, are -- are completely supported by the record to --
05-204 +++$+++ 40107 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you have a -- a section 5 argument with respect to district 25 as opposed to a section 2 argument involving district 23?
05-204 +++$+++ 40108 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The legislature was certainly concerned about section 5, and with respect to the adjustment in -- in district 23, it was possible that the Department of Justice might deem the alteration of district 23 to be something that would be retrogressive and, accordingly, having a district that was -- a performing Hispanic opportunity district would increase the chances of preclearance. So -- so that was a factor in the consideration, was a desire to comply with section 5 and also to comply with section 2, although section 5 was the -- the principal focus of the legislative discussion.
05-204 +++$+++ 40109 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is it permissible for a legislature concerned with section 5 to take race and ethnicity in account -- into account in drawing a district?
05-204 +++$+++ 40110 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This Court has never squarely resolved that. This Court has assumed in the racial gerrymandering cases, assumed without deciding, that compliance with the Voting Rights Act is a compelling interest. And the -- the districts that have been struck down have been struck down as not being narrowly tailored. Although we advance that argument, we don't have to prevail on that argument for district 25 to survive the racial gerrymandering claim.
05-204 +++$+++ 40111 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And as to 23, do you want this Court to say that it's constitutionally permissible to take away a number of minority voters from the district, but leave just enough so that it looks like a minority? Is that a permissible use of race? It -- it seems to me that's an affront and an insult.
05-204 +++$+++ 40112 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Except the district court found as a factual matter that what happened in district 23 was wholly political. It was not racial, so that the voters were not removed because of race. They were removed because of politics.
05-204 +++$+++ 40113 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but -- but the additional finding is that 50 percent were kept to make it -- to make it look good.
05-204 +++$+++ 40114 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the legislature was aware of -- as this Court has said, the legislature will always be aware of the racial composition of a district. But the legislature specifically -- for example, unlike Bush v. Vera, there are no bloc-level cuts based on race. Indeed, in district 23, what the legislature did, by and large, is go straight down Interstate 35 which cuts right in the middle of Webb County. Now, if one considers Webb County, there -- there are two halves of it. There is the half that moved into new district 28. Now, those voters presumably cannot complain about being disenfranchised in that. At least the Hispanic voters there are now in a unquestionably performing Hispanic opportunity district that elects an Hispanic Democrat to Congress. The remaining voters in Webb County -- in 2004, Congressman Bonilla carried a majority of Webb County, and so it is difficult to see who is being disenfranchised, given that both halves of Webb County are electing a Congressman for whom a majority of their voters are voting.
05-204 +++$+++ 40115 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why -- in -- in --
05-204 +++$+++ 40116 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Go ahead. I'm sorry.
05-204 +++$+++ 40117 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In -- in contrast to that, however, you could not make that argument or -- or that response with respect to -- to district 24, the district in which the -- the Black vote was -- was cracked. And in response to earlier questions from Justice Stevens, you -- you mentioned there were a number of motivations for dividing it up the way it did, and -- and yet, as you also acknowledge, those differing motivations don't answer a -- a section 2 argument. What is your answer to the section 2 claim?
05-204 +++$+++ 40118 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, as you know, Justice Souter, purpose under the '82 amendment is irrelevant to section 2. It is an effects-only test, and -- and the district court had a series of factual findings, most of which appellants did not even challenge until their reply brief, each of which is independently sufficient to defeat their claim. The -- the district court found against them on all three prongs of Gingles, and those findings were fully supported by the record. As an initial matter, the appellants attempted to frame this as debating the legal question over whether 50 percent is an absolute barrier. The district court concluded that it needn't resolve that question because the facts here presented no opportunity to determine if there might be some tolerable deviation below 50 percent. In this case, African American voters in old district 24 comprise less than 22 percent of the voting age population.
05-204 +++$+++ 40119 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but following Georgia and Ashcroft, isn't -- isn't that a possibility that we should consider as a satisfaction of what has come to be known as the -- you know, the first of -- of the Gingles factors?
05-204 +++$+++ 40120 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In our judgment, Georgia against Ashcroft expanded the flexibility for States to determine how to comply with the Voting Rights Act. Georgia against Ashcroft obviously was a section 5 case, and it determined that in considering retrogression, that opportunity districts and influence districts should both be considered. It surely did not mean that there was a cause of action now for any plaintiff to argue that any conceivable influence district must be drawn. That goes entirely against the central theme of Georgia against Ashcroft, which is that States have flexibility in choosing a representational model for voters in that State.
05-204 +++$+++ 40121 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it -- it is not inconsistent with Georgia and Ashcroft to say that for -- for much the same reason, States have less flexibility in cracking influence districts once they have been established.
05-204 +++$+++ 40122 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That might perhaps be true if the plaintiffs could demonstrate the other Gingles prongs, but on the second and third prong, the district court found that African American voter cohesion was far from clear and there was absolutely no cohesion between African Americans and Hispanics in district 24. Indeed, they voted in an almost completely polar manner in Democratic primaries. And third, the district court found that there was not Anglo bloc voting. And so all three of the prongs -- what the district court found as a factual matter is that district 24 functioned as an Anglo Democratic district. And indeed, this case is unusual in that there were some extraordinary direct testimony that the way district 24 operates is not accidental, that in 1991, it was explicitly drawn by Anglo Democrats for the specific purpose of electing Anglo Democrats and only Anglo Democrats. And that was testimony not from a State witness but from Congresswoman Eddie Bernice Johnson, a Democratic African American incumbent from the adjoining district who was in the State legislature in 1991, and she said the African American population there was deliberately split up to create a district that would be -- elect white Democrats. That direct testimony is extraordinary and it shows that what the data demonstrate, which is that white Democrats control the district -- and that's what the district court found as a factual matter -- is not an accident. It was precisely the intended effect of the map-drawers. Indeed, if one looks to the three races that the appellants' experts examined that were African American versus Anglo in the primaries, of those three races, an African American candidate of choice who was Black prevailed in only one. Of the 20 races appellants' experts examined, of those 20, only one Black candidate prevailed, and that case, the district court found, was aberrational because that candidate was Ron Kirk. He was a former mayor of the City of Dallas. He was a very popular, local politician with a strong friends and neighbors effect. If you take that aberrational case out, the two other cases appellants' experts looked to both showed that the African American candidate, one of whom was supported by 76 percent of African American voters, lost. And indeed, what happened was the Anglos and the Hispanics voted in virtual unison against the African American candidate. That data -- if one looks to the endogenous races, there had never been an African American opponent to Martin Frost, or the exogenous races, those three we talked about -- the data demonstrate quite persuasively that African Americans were drawn into a district where they did not have an equal opportunity to elect their candidate of choice because they lacked the ability to elect a Black candidate. Now, they could choose to do otherwise, but in this district, they could not choose to elect a Black candidate. And that was the district court's finding and that's what the data demonstrated.
05-204 +++$+++ 40123 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Counsel, can I move you south and west again, back to district 23? How do we tell -- as redrawn, it had what? 50.8 percent. And I gather that that's not considered a Hispanic opportunity district because of lower voting turnout, registration, participation? How do we tell when something is being done to make it look like a Hispanic district and, instead, when it's being done for the opportunity of providing a Hispanic opportunity district if voter turnout and registration are increased?
05-204 +++$+++ 40124 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The district court made a finding that the reason district 23 was altered was to increase the chances of Congressman Bonilla prevailing. And in particular, if one looks to Webb County, which is the county that was split, Webb County centers on the City of Laredo. And in 2002 -- the race that the GI Forum appellants focus on principally -- the candidate that ran against Congressman Bonilla was Henry Cuellar, a popular, local politician from Laredo, and he had a very strong following in Laredo. And as a consequence, Mr. Cuellar did very well in that election, came within slightly under 4 points of beating Mr. Bonilla and Mr. Bonilla's percentage of the -- of the Latino vote dropped to its lowest historic point. That, as the district court found, was also aberrational because of Mr. Cuellar's very strong local support, and the clearest evidence of that is under the new map, when half of Webb County was placed in the adjoining district, district 28, Mr. Cuellar ran against the incumbent Democratic Congressman, Ciro Rodriguez, and beat him in the primary, which demonstrates that his success was because the -- the voters in Laredo are supporters of Mr. Cuellar and, accordingly, voted for him against either opponent, Henry Bonilla or Mr. Rodriguez. And so, when the legislature was determining which section of voters to remove for political reasons, the region that voted heavily against Mr. Bonilla in the preceding election, Laredo, Webb County, was a natural place to move voters who had in the last election demonstrated they would vote for his opponent. Under any assessment of 23, the prior map had five districts that were indisputably Hispanic opportunity districts, plus district 23 that elected Congressman Bonilla, an Hispanic Republican. The current map has six districts that are indisputably Hispanic opportunity districts, plus district 23 which elects Henry Bonilla. So the result is the same in district 23, and there is an additional Hispanic opportunity district in district 25. If I may turn to district 25 and return to Justice Kennedy's questions earlier about racial gerrymandering with respect to that district. The first indicium this Court has looked to in racial gerrymandering case -- cases is unusual or bizarre shape, and on that indicium, this district does not fall anywhere near the districts this Court has struck down as racial gerrymanders.
05-204 +++$+++ 40125 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, of course, the reason the lines are straight is nobody is there. (Laughter.)
05-204 +++$+++ 40126 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But those counties have to be placed in some district. And -- and so the appellants call a series of seven whole contiguous counties a land bridge, but those are very sparsely populated counties. In whatever district they're in, they're going to have to connect with a population zone. And what the district court found as a factual matter is that the elongated nature -- the relatively elongated nature of district 25 was a function of the geography and the fact that you have population along the border and then you have a large space of relatively low population, and then you have to get back up to population. So Texas historically has run north-south districts to get enough population to form a congressional district under this Court's one person/one vote precedents. District 25, if one examines -- the district court expressly found that the plaintiffs failed to prove purposeful discrimination. The State defendants introduced at trial a Cromartie analysis that was precisely drawn from this Court's first Cromartie decision, Hunt v. Cromartie, and it's found on pages 331 and 332 of the joint appendix. And what that analysis did is precisely what this Court found in Cromartie I was sufficient on summary judgment to defeat a claim of racial gerrymandering. It assessed the lines in Travis County, the northern part of district 25, and it asked are the cuts the legislature made driven by politics or driven by race. And so what the State's expert did is drew a map that would be based on race that would maximize the Hispanics in district 25 on the northern end of Travis County. He then compared that map to the map that the legislature had drawn and said what are the differences between what it would look like if the legislature was attempting to maximize race as compared to what it would look like if it was attempting to maximize party. And what the State's expert found is there was on the order of a 1 percent differential which is you're talking between 24 and 25 percent. So it was about 4 percent differential of fewer Hispanics in the State's map and more Democrats in the State's map. And so what the State's expert found is precisely along the lines as the evidence in Cromartie I that the legislature had drawn the map looking for Democrats rather than looking for Hispanics. In addition, if one examines the two numerical measures of compactness, smallest circle and perimeter to area, smallest circle this map measured 8.5, which is smaller than North Carolina's reconfigured district 12 upheld in Cromartie, which was 8.6 Its perimeter-to-area score, 9.5, is terribly low. As a -- as a means of comparison, districts 18, 29, and 30 that this Court struck down in Vera had perimeter-to-area scores of 106, 144, and 69, as compared to district 25's score of 9.5.
05-204 +++$+++ 40127 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ General Cruz, if you've finished your answer -- I didn't want to interrupt you, but that makes -- reminds me of a question I wanted to answer you because -- ask you, rather, because you make a very persuasive argument in your brief, which I found very helpful, that the -- a State should be able to correct a prior gerrymander by -- for -- with political motivations. I would like you to comment on this suggestion. Supposing we said they have an absolute right to do that with one caveat, that any new district has to be more compact -- no more -- no less compact than its predecessor, wouldn't that avoid all sorts of problems?
05-204 +++$+++ 40128 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That could be a salutary policy goal, and -- and Congress could certainly enact that. But I -- I see no -- no source in the Constitution placing that requirement upon States particularly --
05-204 +++$+++ 40129 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We have -- we have quite a history, as you just identified in your response to Justice Kennedy, of being concerned about particularly grotesque shapes, and that's why they developed these tests of compactness for use in this very litigation. And the fact that the lawyers have come up with this approach to it makes me think maybe it does have some relevance to the whole problem we're trying to confront.
05-204 +++$+++ 40130 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At an extreme level, lack of compactness can indicate something was going on. If one looks at the districts this Court has struck down, if you look at Bush v. Vera -- and we have in the joint appendix the silhouettes of those districts that were -- you know, had fingers going out in every direction. There's plainly something questionable going on. These districts are nothing like that.
05-204 +++$+++ 40131 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When I -- when I was thinking about this problem, I looked at district 24. The thing that was interesting to me is that most of the neutral justifications that you describe -- and they're certainly in the -- in the five new districts that replaced it, but in the key part of the population that was moved, it becomes much less compact than it was before.
05-204 +++$+++ 40132 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the new map --
05-204 +++$+++ 40133 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which it seems to me quite significant.
05-204 +++$+++ 40134 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the new map was somewhat less compact than the prior map, but it does --
05-204 +++$+++ 40135 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And its particularly -- particular reference to the targeted group that was moved out of the district.
05-204 +++$+++ 40136 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But lack of compactness does not -- no one has brought a racial gerrymandering claim with respect to districts other than 25 and, to some extent, 23, although the 23 challenge is not a typical racial gerrymandering claim.
05-204 +++$+++ 40137 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm suggesting the challenge to 24 should be a political gerrymandering challenge.
05-204 +++$+++ 40138 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand that, although a majority of the Court in Vieth concluded that in order for a political gerrymandering claim to succeed, that there must be a substantive standard for fairness to measure the map against some baseline.
05-204 +++$+++ 40139 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, Justice Stevens --
05-204 +++$+++ 40140 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that's the standard I'm suggesting. Right. That's exactly the point.
05-204 +++$+++ 40141 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
05-204 +++$+++ 40142 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The compactness standard.
05-204 +++$+++ 40143 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-204 +++$+++ 40144 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the Court had before it -- appellants urged in Vieth compactness, principles of cracking, principles of packing. One of the dissenting Justices advocated that standard, and yet, a majority of the Court -- the plurality explicitly rejected it. And Justice Kennedy's concurrence explicitly rejected the standards discussed in the dissents, including a standard looking to compactness.
05-204 +++$+++ 40145 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm not sure that Justice Stevens is suggesting that as a standard. He's suggesting it as a disqualifier. If it's not as compact, it's no good, but if it is as compact, he's -- I -- I don't think he's suggesting it's okay. So we still don't have a standard.
05-204 +++$+++ 40146 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. I was suggesting that would be a safe harbor, and -- and it would just --
05-204 +++$+++ 40147 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ A safe harbor from an unknown standard. (Laughter.)
05-204 +++$+++ 40148 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Jump in whenever you want. (Laughter.)
05-204 +++$+++ 40149 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under any standard that looks to the substantive lines on the map, anything that -- and we have spent hours racking our brains trying to think of a standard for litigation purposes that would yield the old map being more fair than the new one. We're not aware of any coherent standard that looks to substance.
05-204 +++$+++ 40150 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let -- let me ask you this. Suppose you have a court that's required to redistrict, and the court has two experts. Expert number one says, here is a plan. It's totally partisan in its orientation, but it balances the Democratic and the Republican registration. It gives them exactly proportional representation. Plan number two gives minimal consideration to this, but it's compact. It takes into account geography, communities of interest, and so forth. Would the district court be in error if it adopted the first plan?
05-204 +++$+++ 40151 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that -- that question actually was litigated in this case, the first time in 2001, as part of the litigation over how to draw the new map. One of the arguments that was presented to the district court was that the old map was no longer consistent with how Texas voters were voting. And the district court concluded that under the Upham case, it lacked the authority to take that into account and to change the demonstrated policy preferences of the last legislative map. And that's why, on remand in this case, the district court found although it didn't intend to work partisan bias, that that was the effect of its map.
05-204 +++$+++ 40152 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but my hypothetical is designed to suggest that partisanship, political lines should be certainly a secondary consideration to a valid principled scheme and that perhaps in the hypothetical case, you could reverse a district court for abuse of discretion in -- in overemphasizing political considerations. And then if that's true, it means that there is some standard lurking out there indicating that political considerations should be of at least secondary importance.
05-204 +++$+++ 40153 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In this case, the district court was presented with maps that would be more fair on -- on pretty much any measure of partisanship, and what the district court concluded is it didn't have the ability -- that making that judgment was a political judgment, and it was the legislature's job to do it. And so it drew in the districts it was required to draw because Texas had two new districts. It drew in what it believed the Voting Rights Act required, and beyond that, it made as few changes as possible. And so the district court recognized that the consequence of that map-drawing technique is whatever partisan bias was there before is reflected in its own map that just neutrally carries over the preexisting bias. And that's why the district court found it was perpetuating the prior bias, not because it intended to do so, but because it was consciously restraining itself from doing anything to alter the partisan composition other than to carry over what was already there.
05-204 +++$+++ 40154 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- district 24. I take it -- it's a long walking stick is what it looks like. And the -- I take it you're saying when I go back to the record here, I'll discover a finding that the district court made. They said this was not an effort to use race to district. Is that right? And one of the reasons that you think that is because, although it's not a circle, it's not absolutely terrible. That -- that is a supporter of the ultimate conclusion they did not use race. Is that right?
05-204 +++$+++ 40155 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, that's -- that's exactly correct --
05-204 +++$+++ 40156 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then -- then if I -- if I -- so I have to go back, look at the record, and see what it says. Now, suppose I came to a different conclusion. Then you might still win on this point if the rationale for using race to district was because we want to avoid a section 2 violation. And there, you would lose, however, because you can't use that rationale unless, according to Bush v. Vera, the district that you draw is, in their words, reasonably compact. So, again, you'd have to say that this district that looks like a walking stick is reasonably compact for that other purpose. Is that right?
05-204 +++$+++ 40157 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, although we would submit this district is reasonably compact.
05-204 +++$+++ 40158 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, so I understand that. But -- but if -- if I -- you have two bites at this apple with your reasonably compactness. One, you want to say it wasn't -- you think this proves it wasn't to use race in the first place, but if I'm wrong on that, it's still a legitimate use of race because it's a reasonably compact effort to conform with section 2.
05-204 +++$+++ 40159 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, you're correct that if the Court concludes this district is not reasonably compact, then under its precedents, it wouldn't be a narrowly tailored way to satisfy a voting rights violation, but --
05-204 +++$+++ 40160 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And is there anything I can look to to decide what reasonably compact means in that second --
05-204 +++$+++ 40161 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the district court's finding was that Texas geography and population dispersion limit the availability of district compactness in southern and western regions of the State, and that was at the Jackson jurisdictional statement, page 154a. So that's -- there's -- there's a challenge in Texas because you've got these --
05-204 +++$+++ 40162 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You're talking about district 25. Right?
05-204 +++$+++ 40163 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 25, yes. Yes, we're talking about 25.
05-204 +++$+++ 40164 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, 25.
05-204 +++$+++ 40165 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 25 has seven whole counties and only two county splits, which is unusual. Most of the cases that this Court has struck down what it's perceived to be racial gerrymanders have been a number of county splits. In this case, the county splits -- those were mandated to -- because we have achieve perfect equipopulosity, so we had to get exactly, within one person, precise lines. But within -- in between the two, they are whole contiguous counties that are longstanding geographic units. The testimony is clear that the -- the legislature made no effort to avoid Anglo voters. It's not like they snaked around. And even the lean of it is a simple fact that the Gulf of Mexico leans like this, and it follows the geographic boundaries of the State, so that if one examines this district next to the other districts, it follows historic lines that have been used in Texas.
05-204 +++$+++ 40166 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ General Cruz, why wouldn't it be a -- at least a helpful guide to what is reasonably compact to compare with the preceding district? Now, that fits 24 but not necessarily 25 I understand. Wouldn't that make -- make sense if the reasonable compactness is -- is one of the tests?
05-204 +++$+++ 40167 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ One could certainly compare the preceding district, and with respect to the preceding district, the differential is -- is not great. It is somewhat more compact. But there were other policy agendas the district court --
05-204 +++$+++ 40168 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ When you're carved out of a couple of preceding districts, which is the preceding district? I mean, isn't -- isn't that a problem with that test?
05-204 +++$+++ 40169 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that is a certainly a challenge.
05-204 +++$+++ 40170 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I suppose if you have a plaintiff suing, it would be the one he lives in.
05-204 +++$+++ 40171 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You know, if you compare, for example, district 25's perimeter-to-area score is 9.6. You know, if -- if one looks at, for example, the plan 1385 submitted by GI Forum, that has one plan, district -- one district, district 28, with a higher perimeter-to-area score of -- of 10.0. And indeed, the district court found as a factual matter that the demonstration plan submitted by the GI Forum appellants was -- was less compact and critically would not perform. Going back to the section 2 question about district 23, the district court found that one district in the demonstration plan, district 28, had only a bare majority of citizen voting population, 50.3 percent, and there was undisputed testimony that for a district to perform in this region, it had to have --
05-204 +++$+++ 40172 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why did they have -- why did have just 50.3 percent?
05-204 +++$+++ 40173 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the Hispanic population is dispersed enough that one can't -- one can't draw --
05-204 +++$+++ 40174 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ They're doing that to make it look like whoever was elected had Hispanic support in that district? Is that --
05-204 +++$+++ 40175 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We did not ascribe motives to them. They -- they drew it to demonstrate that -- that you could draw a district with a bare majority of citizen voting population, although their experts also testified that a bare majority will not elect in this region because of lower voter -- voter turnout.
05-204 +++$+++ 40176 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On the -- either it is reasonably compact or it isn't. If it is reasonably compact, we never get into Bush v. Vera, whatever, the Vera case in the first place. And if it isn't, you can't get out of it by saying it's an effort to cure a section 2 violation.
05-204 +++$+++ 40177 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, but with respect to the question of racial gerrymandering, this Court's question is, is race the predominant motivation? There's a direct factual finding by the district court that it was not. Indeed, the district court said that the -- that the measures of compactness, examined in relationship to the geography and population, reflect the sheer size and population distribution of this area, rather than a calculated stretch to find voters of a particular ethnic makeup.
05-204 +++$+++ 40178 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You mean 25 -- the -- the Latino makeup of 25 is accidental?
05-204 +++$+++ 40179 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is a function of the population in south and west Texas.
05-204 +++$+++ 40180 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's accidental.
05-204 +++$+++ 40181 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- it is not accidental in the sense that the legislature was unaware of it, and as this Court has said, whenever a legislature is districting, it is aware of the -- the racial distribution. But it was drawing an additional district there, and the district court found that in drawing those lines, it did not reach out to segregate voters on either side based on race, that that was not its intent and that was not the effect of what it in fact drew.
05-204 +++$+++ 40182 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what do you say to Ms. Perales' argument that the -- the numbers are just too precise to have been reflective of anything but a racial motivation, and that, therefore, the -- the district court's finding was clearly erroneous?
05-204 +++$+++ 40183 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that -- that concerns district 23, and -- and --
05-204 +++$+++ 40184 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Aren't they equally precise here?
05-204 +++$+++ 40185 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. District 25 is -- has a -- a large majority on Hispanic voting age population and also citizen voting age population.
05-204 +++$+++ 40186 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I misspoke. Okay.
05-204 +++$+++ 40187 +++$+++ TRUE +++$+++ MR. CRUZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect to district 23, there's an unusual aspect to the GI Forum appellants' argument in that it's unlike a typical racial gerrymandering claim where they say you're -- you're seeking to draw lines based on race. She's arguing they should have been more aggressive drawing lines on -- based on race, which is -- which is not an argument that sounds in the Shaw line of cases. What the district court found is that it was purely a political motivation that drew that decision, and if one is looking to the Voting Rights Act, under any assessment, the district is performing identically as it did before. And on the totality of circumstances, either based on the region, in which case their argument -- argument is one for maximization -- they have six of seven districts. They're arguing they're entitled to seven of seven districts -- or on a statewide basis, the district court found totality of the circumstances was met. With respect to district 24, the findings -- the -- two of the three findings, with respect to Anglo bloc voting and cohesion, the appellants have made no attempt to get around other than in their reply brief, they have -- have briefly challenged them. But it was their own expert who provided the information that the district court found credible, that there was no cohesion, that African Americans couldn't elect their candidate of choice. And it is undisputed that in new district 9, African Americans can elect their candidate of choice. And so from a statewide -- from a totality of circumstances perspective, the ability to elect a candidate of choice for African Americans in the State is higher under this map than it was in the preceding map. In sum, the basic question here is whether courts or legislatures are the principal decision-makers. If appellants' proffered rule is adopted, it removes the safety valve that the Constitution provided. It is rarely employed because it is rare that one finds a plan so out of step with the demonstrated preferences of voters for a decade. We are aware of no other plan that allowed a minority of voters who never crossed the 44 percent threshold to control the majority of the delegation. We're aware of no other map in the country. And so if there is a standard that this is impermissible, that consequence would either elevate courts above legislatures, contrary to the constitutional text and to 4 decades of this Court's precedents, or if it looks to substance, it would call into question the districts in a host of other districts because on any objective measure, the districts in Texas are fair as a partisan matter, compared to the other States, compared to the predecessor map, compared to any metric that one applies. Indeed, the social scientists say, based on the seats/votes curve, that given that Republican voters are currently voting at roughly 60 percent for Republican candidates, one would expect a higher percentage of Republican candidates elected than -- than what this map is yielding. And so on any coherent measure of a substantive measure of fairness, this map should survive. If there are no further questions.
05-204 +++$+++ 40188 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Cruz. Mr. Garre.
05-204 +++$+++ 40190 +++$+++ FALSE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The United States' participation in this case is addressed to the Voting Rights Act issues, and our position is that the district court properly concluded that the 2003 plan does not unlawfully dilute minority voting strength in either the Dallas/Fort Worth area or the south and west region of the State. The district court based that conclusion on factual findings that are entitled to great respect on appeal and that preclude appellants' section 2 claims under this Court's decisions.
05-204 +++$+++ 40191 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you if you agree with General Cruz, that if the results of the 20 -- section -- district 23 violated section 2, it would not be a defense that was politically motivated?
05-204 +++$+++ 40192 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think that's right, Justice Stevens, insofar as --
05-204 +++$+++ 40193 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And would you also agree with the second question I asked as to whether if it were a violation -- I understand you don't think it was -- it would not be a defense that they were able to create a district -- a Hispanic district in another part of the State.
05-204 +++$+++ 40194 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's true in the context that the Court said it in the Shaw II case, but we don't think that the principle of Shaw II would apply to the section 2 claim in the south and west part of Texas in this case. And that's because in Shaw II, the Court found a violation in the southern part of the State and considered the question as to whether a creation of a district in a completely different part of the State, the middle of the State with no connection, would remedy the section 2 violation, and the Court said no. This case deals with a section 2 claim which is addressed to a particular region of the State, a region that's marked by its high concentration of Hispanic citizen voting age population, as well as common geography and other factors. And we know that the claim is addressed to that particular region of the State because that -- that region is the focus of the plaintiffs' demonstration plan. Mr. Cruz referred to it. It's at page 241 of the GI Forum jurisdictional statement. That's the plan that they claim they're entitled to under section 2 of the Voting Rights Act, and it's addressed to the entire part of the State. So in that situation where you've got a claim where you have a -- a Voting Rights Act section 2 claim addressed to a particular region of the State, we don't think that the Shaw II principle would come into a play. Here, we don't think there's any section 2 violation with respect to the elimination of --
05-204 +++$+++ 40195 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that based on the premise that section -- that district 25 and district 23 are in the same part of the State?
05-204 +++$+++ 40196 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, not just the same part of the State, but a part of the State that falls within the section 2 -- within the focus of the plaintiffs' section 2 claim, and a part of the State that's marked by its high concentration of minority citizen voting age population. In -- in the De Grandy case, this Court confronted a very similar problem where you had one part of the State, the Miami-Dade area of Florida, which had a high concentration of Hispanic citizen voting age population, and the State was drawing various districts in that part of the State. And the Court looked to those districts and considered whether there was a proportional representation of the minority group in that area and -- and found that, under the totality of the circumstances, there was, and therefore, there was no violation of section 2. Here, you have a situation where the district court found that the citizen voting age population in the south and west part of the State was 58 percent, and that under the State's plan, Hispanics enjoyed 85 percent majority minority districts in that area, which is to say, six of the seven districts under the State's plans were districts in which Hispanics enjoyed a majority of citizen voting age population. The decision within that area of where to draw district lines is a decision that section 2 and this Court's precedents leaves up to the States. And, in fact, in the De Grandy case, this Court in -- in particular considered the situation where a district line ran through a minority neighborhood and split up that neighborhood. The Court discussed it on page 1015 of its decision. And it said that the fact that the district line went through that neighborhood and had an effect on minority voters, in terms of which district they went into, didn't in itself establish a section 2 violation. And we think the same principle would apply here, where the fact that the district lines separating district 23 and 28 in the southern part of the State near Laredo splits a Hispanic neighborhood, which is, after all, not -- not surprising given that the large percentage of the population in that part of the State is Hispanic, doesn't in itself establish a section 2 violation. The plaintiffs' section 2 claim in that part of the State really sounds very much in a section 5 retrogression or dismantling claim, and this Court made clear in the Holder v. Hall case that retrogression principles of section 5 are not applicable in section 2 cases. And we certainly think that that principle holds here and that --
05-204 +++$+++ 40197 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are there cases that -- that we've issued from this Court that address what happens in a case like this where the economic circumstances and many other circumstances of the two Latino populations are very different? The border Hispanics and the Hispanics in Austin have very -- very little in common other than -- than the Latino background. Are there -- are there cases that address whether or not these populations can be combined in -- in order to satisfy the -- the Voting Rights Act requirements?
05-204 +++$+++ 40198 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't know of a --
05-204 +++$+++ 40199 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Have we talked about that?
05-204 +++$+++ 40200 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- specific case that has addressed that concern. I suppose it would go perhaps to the cohesiveness analysis under the Gingles factors. I mean, what -- what is clear under this Court's cases and the text of section 2(b) is that the Court has to take into account the totality of the circumstances in the area, not just the rough proportion -- the existence of proportionality between the Hispanic population and the number of districts in which they enjoy a majority, but all the circumstances that could bear on the region. And the district court in this case conducted that analysis and it found, under the totality of the circumstances, that there was an -- that there was not a section 2 violation in the south and west region of the State. And we certainly think that that finding is entitled to respect under the clearly erroneous standard that this Court applies in reviewing findings of -- ultimate findings of vote dilution. The Court has -- has said repeatedly that it will not disturb such a factual finding unless it is left with the definite and firm conviction that a mistake has been made, and we don't think the record in this case would support such a conclusion with respect to either the section 2 claim in the south and west or the section 2 claim in the Dallas/Fort Worth area. As we have explained in our brief, that claim -- and I'm now turning to the Dallas/Fort Worth claim -- fails because of the district court's finding that African American voters in old congressional district 24 lacked the ability to elect candidates of choice in that district in the sense that they would be unable, in a contested election, to put their candidate, the African American candidate, into office. That finding too is supported by ample record evidence and we think could not be set aside under the standard that this Court applies.
05-204 +++$+++ 40201 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it possible it violates section 2, the following? We look at the map as it's drawn. We ask the question, is there a way to redraw this map so that, say, the minority group has a more significant influence for their bloc voting, et cetera, et cetera? Gingles. Answer: Of course, there is. It's the old way. And you say, well, why didn't you do it the old way? Well, the only reason you didn't do it the old way was pure politics and that that isn't a sufficient justification.
05-204 +++$+++ 40202 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think that would bear on the typical section 2 analysis this Court would apply. The -- the plaintiffs bear the burden of coming in in a section 2 case, which is, after all, a claim that the State is forced to draw a district in a particular way, to show the demonstration district in which the three Gingles factors can be met. And this case is a little bit unusual in that instead of coming up with a -- a new district, they've just pointed to the old district, which in itself is -- is similar to more of a section 5 claim. But with respect to that district, the district court failed -- failed to -- the district court found that plaintiffs failed to meet the first Gingles precondition, which is that they could not show in that district that they had the ability to elect the candidate of their choice because African Americans were 22 percent of the population in that district, the third largest racial group, and because other evidence, including the past elections in that district and direct testimony of politicians with intimate familiarity of that district, supported the logical conclusion that a group that comprises only 22 percent of the electorate --
05-204 +++$+++ 40203 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I was thinking of district 23.
05-204 +++$+++ 40204 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, I'm sorry. With respect to district 23, again I -- I think the -- the framework for the plaintiffs' challenge to section 23 is the south and west region of the State in a claim that they were entitled to a seventh -- a seventh effective majority district in that part of the State. The State's plan, 2003 plan, gives them six majority minority districts. The plaintiffs, GI Forum --
05-204 +++$+++ 40205 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's not -- not including 23.
05-204 +++$+++ 40206 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not including 23. That's right, Mr. Chief Justice. They claim that they're entitled to a seventh majority minority district. The district court rejected that claim because it found that they had failed to show that the seventh district that they drew would be an effective district because it only had 50.3 percent citizen voting age population --
05-204 +++$+++ 40207 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ When you say they drew, you mean the GI Forum proposal?
05-204 +++$+++ 40208 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The GI Forum drew. That's right. And again, that's at page 241 of the GI Forum jurisdictional statement. It found that that district was not effective because it only had a 50.3 percent citizen voting age population, and the district court found, based on the testimony that showed that Hispanics have a comparatively low turnout rate in elections, that a 50.3 percentage wouldn't do the trick to give them the potential to elect.
05-204 +++$+++ 40209 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Garre.
05-204 +++$+++ 40210 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
05-204 +++$+++ 40211 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Smith, you have 4 minutes remaining.
05-204 +++$+++ 40213 +++$+++ FALSE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. As I understand the State's argument, it is that the rational, legitimate governmental purpose that was served in passing a new map in 2003 was to eliminate an anti-majoritarian map drawn by the Federal district court in 2001. I submit to you that's an odd use of the word in a couple of different senses. First of all, as the experts for both sides found and as the court itself found, that -- the court-drawn map was not unfair or biased in any way. It did not in any way maldistribute voters in a way that -- that hurt -- hurt Republicans' chances to elect Members of Congress. So when Mr. Cruz says that the problem with the old map was that a minority of voters were controlling the delegation, that is factually untrue. What happened was that Republican districts chose to elect moderate to conservative Members of Congress who happened to be affiliated with the Democratic Party rather than the Republican Party, but that does not mean that Democrats were controlling the delegation. The anti-majoritarian name is odd in another way because the map that replaced it, of course, is terribly anti-majoritarian, as the experts for both sides agreed. It totally flunks any -- any kind of standard analysis about bias in a map to the point where it locks in 22 to 10 regardless, essentially, of how anybody votes in the State of Texas, and it's going to produce majorities that are going to average about -- margins of victory that are about 40 percent in -- for the rest of the decade, even if the Democrats gain votes over time. Now, it's a dangerous road we're going down, I submit to you, if we start authorizing this kind of partisan festival every couple of years adjusting the lines. Now, we've had three States redo their congressional districts already in this decade, and if this Court were to uphold this one, I think we'll start seeing lots and lots of other ones tit for tat around the country. There's another particular aspect of this that I think is potentially dangerous, which is as you get further into the decade, the census numbers get older and older and more and more out-of-date. And what the line-drawers then do is they've got the census numbers over here, they know where the real people are over here, and they can exploit that differential using the old census numbers. So it seems to me that even if you're going to say there's a legitimate public purpose for redrawing the lines through the decade, we ought to require the States to come up with fresh numbers. The population -- one person/one vote requirements are so incredibly strict in the congressional area. Simply to sort of assume that these people can use the old numbers when they're redrawing the lines 5 years after the census seems -- seems mistaken to me and it does invite terrible abuse. There -- and there are mechanisms for getting new census numbers if the States really feel it's important to do so. Let me then turn, if I might, quickly to respond, I think, to Justice Stevens' question about what the record shows about the intent for taking the -- the African American community in Fort Worth and sending it up to Oklahoma, so to speak. That intent is set forth in pages 87 to 88 of the jurisdictional statement appendix where the map-drawer himself -- his testimony is quoted, and he explained that we had to find a Republican district in the -- in the neighborhood that we could -- we could tack them onto that could sort -- that could, quote, handle that particular component of the current county population, which is to say a district sufficiently Republican that they would be completely disempowered for the rest of the decade. Now, there was -- there was a comment from Mr. Cruz about how the district 24 was created for a Anglo -- Anglo Democrat to win. The district that -- that was talked about in the testimony was the district drawn in 1991. What Mr. Cruz didn't point out was that in 1996, that district was completely changed by a Federal district court in Bush v. Vera. The old district went way down into the southeast into the countryside. The new district, which is the one you see in the maps before you, was drawn by the Federal district court. It wasn't drawn by anybody seeking to uphold any Anglo Democrats' opportunities.
05-204 +++$+++ 40214 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Who was the -- who was the -- the candidate in that district after the district court plan?
05-204 +++$+++ 40215 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Frost continued to run in that district, Your Honor.
05-204 +++$+++ 40216 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, didn't the district court say one of its criteria was preserving incumbency?
05-204 +++$+++ 40217 +++$+++ TRUE +++$+++ MR. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's a different Federal district court. I was talking about the -- the Bush v. Vera court was the one that redrew it, Your Honor, not the -- not the one that's in 2001. Thank you, Your Honor.
05-204 +++$+++ 40218 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Smith.
05-259 +++$+++ 40222 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument next in Burlington Northern and Santa Fe Railway Company v. White. Mr. Phillips.
05-259 +++$+++ 40224 +++$+++ FALSE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: There is no more vexing set of issues in the employment discrimination context than arise out of issues of retaliation under section 704 of title VII. As the Solicitor General's brief and a couple of the other amici briefs point out, the number of -- the number of these claims has increased by more than 100 percent over the course of the last decade, more than 30 percent of the EEOC's docket is now made up of retaliation claims, and the cost of an average contested retaliation claim exceeds $130,000 per case. Plainly, this is a fundamentally important question, and the standard to be applied under section 704 is critically important to both employers and employees. And the Respondent has given you truly a choice and not a shadow in this particular case because the Respondent's analysis of section 704, based essentially on the language, any discrimination, is that everything that is in any sense against an employee, any act of retaliation, no matter how trivial, is nevertheless a basis for a section 704 lawsuit. This is a position that's embraced by none of her supporting amici. It's a position that's been embraced by no court of appeals up until this point, and it is a position that is utterly untethered in the relationship between section 704 and its language and section 703, which is the heart and soul of the anti-discrimination norms in title VII.
05-259 +++$+++ 40225 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It has been endorsed by the EEOC, though.
05-259 +++$+++ 40226 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not -- not that broad -- no, not even the EEOC in its most aggressive interpretation, which obviously the United States has rejected in this case, ever went to the point of saying any. And I'll give you a good illustration of that because in the guidelines, the commission always said that in a situation where there was absolutely no question of retaliation, charge filed against a supervisor, supervisor disinvites an employee to lunch, a lunch that's held with all the other employees -- it has always been the position of the -- of the EEOC that in that circumstance, that would not be enough to raise even a fact issue to go to a jury on. Under the Respondent's theory of this case, it is clear to me that being disinvited to a lunch would, in fact, be a basis for a Federal lawsuit under section 704. So there is no one, neither governmental nor nongovernmental, that has embraced the extreme position that the Respondent has put forward under section 704. And indeed, it's very difficult for me to understand why Congress would ever have adopted a rule that was more protective of those against whom -- against -- where retaliation takes place as opposed to the core of who was protected by section 703, which is the people who are in the protected class in the first instance. To adopt the rule, I think, of the Respondent in this case would not only increase the number of claims another 100 percent, at least, in the future, but it seems to me would render completely meaningless the observation of this Court in Weber that management prerogatives are to be left undisturbed to the greatest extent possible. There are no management prerogatives once an employee has filed a complaint under -- and, therefore, is protected under section 704. At that point, everything becomes essentially a straitjacket problem. I don't think there's a rationale to support that interpretation, and so therefore the question is, what is the right standard under section 704? And here, it seems to me the United States and Burlington Northern are on exactly the same page. We believe that this Court announced the appropriate standard under section 703 in dealing with harassment cases. That's the Ellerth standard, and we believe that the Ellerth standard is the proper one for defining a tangible employment action.
05-259 +++$+++ 40227 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But 703 has the language and 704 doesn't. I mean, 703 has language limiting it to -- to employment, prerogatives of employment. 704 doesn't.
05-259 +++$+++ 40228 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Justice Scalia, this Court has also said that that negative pregnant has never been used as an overarching interpretive guide. You have to evaluate 703 and 704 in tandem, and it seems much easier to interpret 704 as simply using discrimination against as a shorthand for the wide range of discriminations that are outlined in section 703. It seems quite cumbersome, at a minimum, and probably worse if Congress were to actually sit down and try to rewrite every aspect of 703 in order simply to say in addition to the protected classes that 703 protects, there is certain conduct under 704 that we protect in exactly the same way that we protect --
05-259 +++$+++ 40229 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. It wouldn't have to do -- I mean, fairly -- you know, to be fair, it wouldn't have had to say that. It would have said any -- any act that is discrimination under 703. Any act that is discrimination under 703. Seven words it could have said.
05-259 +++$+++ 40230 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They could have said it that way, but it seems to me quite clear that Congress still intended for 703 and 704 to be interpreted in pari materia. And -- and again, you -- you still run into the same problem, Justice Scalia, as to why is it that Congress would want to protect more thoroughly 704 plaintiffs than it would 703 plaintiffs. And it seems to me there's no --
05-259 +++$+++ 40231 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's a curiosity. It is.
05-259 +++$+++ 40232 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the answer would be because Congress is worried that people won't complain. That's why. And there are millions of ways of harassing people. They start issuing a complaint. You do all kinds of things. You freeze them out. You -- you insult them. You -- I mean, it's easy to think of things that don't rise to the level of the -- Ellerth. So, I mean, if I -- maybe I'm right, maybe I'm wrong, but if I'm right, why not just take, say, the D.C. Circuit standard? They -- they say that you have to show that the employer's action would have been material, which means the action might well have dissuaded a reasonable worker from making or supporting a charge of discrimination. Now, how about that? That has the virtue of allowing a person not to be harassed, et cetera, who wants to make a complaint, and it also allows the judge to focus on the particular case and see if what the person is doing is reasonable. It holds the complainant to a standard of reasonableness, which is common in law.
05-259 +++$+++ 40233 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the issue would be, I assume, how much a reasonable person likes a free lunch.
05-259 +++$+++ 40234 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be -- that would be the question.
05-259 +++$+++ 40235 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, in fact, if it turns out to be the power lunch of all time and, in fact, the person can't be at the power lunch because she's a woman, for example, and therefore, her future career is likely to take a real nose dive, why shouldn't that count as a violation?
05-259 +++$+++ 40236 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I will tell you, Justice Breyer, that the -- at least one of the problems with that is that the EEOC's guidelines expressly state that that is not a claim that's actionable under section 704.
05-259 +++$+++ 40237 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They say one lunch, but not if there's a weekly lunch, and the only person who gets left out is the person who filed a charge under title VII. That's -- a one-at-a-time curiosity the EEOC guidelines leave out, but if it's a routine lunch with all the preferred employees and they leave out the one who filed a title VII charge, that would fit within the EEOC's definition.
05-259 +++$+++ 40238 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would fit under the EEOC's definition, although I don't think it's an answer to Justice Breyer's hypothetical --
05-259 +++$+++ 40239 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it wouldn't fit under your --
05-259 +++$+++ 40240 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that was talking the big power lunch.
05-259 +++$+++ 40241 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Under your definition, lunch is lunch, and so there would never be -- there couldn't be --
05-259 +++$+++ 40242 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, not under my -- no, that's not necessarily the case, Justice Ginsburg. In my -- you know, there are two standards under -- under an adverse employment action. The first one is whether there's a tangible action, and that's the Ellerth standard. And then there's always the pervasive and severe standard, so that if you have -- you know, being routinely excluded rises to the level of pervasive or severe, that would still be actionable under 704 in exactly the same way that that's actionable under 703.
05-259 +++$+++ 40243 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, does it or doesn't it? The -- the facts are simply that the manager takes out all the employees, except this one that filed the title VII charge, once a week. Is that --
05-259 +++$+++ 40244 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and does it on a pervasive basis, sustained and pervasive basis.
05-259 +++$+++ 40245 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does it once a week, and I'm not using any adjective to characterize it. It just happens once a week.
05-259 +++$+++ 40246 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think you probably have a jury question at some point, depending on how long it went on for because it would become -- it would become a pervasive practice. And under those circumstances, this Court has a rule that allows that to become a jury issue. But if it's only once or twice, it strikes me that that's not a particular problem.
05-259 +++$+++ 40247 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, how about excluding from the forklift forever or a year? You can't work the forklift for a year.
05-259 +++$+++ 40248 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- the reason why that's not a problem is that there is no economic effect that attaches to not working on the forklift for a year or for 10 years. The -- the proof in this case is absolutely clear.
05-259 +++$+++ 40249 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it has an effect on your back.
05-259 +++$+++ 40250 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But that was not the -- but the -- but she didn't get hired as a forklift operator. She was hired as a track laborer, Justice Kennedy.
05-259 +++$+++ 40251 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but you've got a jury --
05-259 +++$+++ 40252 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay, but if that argument is sound --
05-259 +++$+++ 40253 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- you've got a jury finding here. You've got a jury finding this was discriminatory.
05-259 +++$+++ 40254 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there's -- there's no question that there's a jury finding of retaliation. The question is whether or not this is a tangible employment action.
05-259 +++$+++ 40255 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but if your -- if your argument is sound, Mr. Phillips, then -- then any employer is well advised to define job categories by having one really nice job within the category and one really rotten job within the category. And if anybody who's got the nice job does something like make a title VII complaint, automatically gets, in effect, reassigned to the rotten job, and your answer will be, you know, there's no economic effect. They're getting the same amount of money each week. I mean, that would seem to me -- asks for an end run around the whole concept of retaliation.
05-259 +++$+++ 40256 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, let me -- in the first place, it's not a very practical hypothetical because, one, when you -- when you define your job positions --
05-259 +++$+++ 40257 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, isn't -- isn't there a big difference between sitting on a seat and running a forklift and -- and picking up steel rails with your bare hands?
05-259 +++$+++ 40258 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, one, she wasn't typically picking up steel rails with her bare hands. All of this stuff is done mechanically. She was pulling nails out of rails periodically. So I'm not sure that that's precisely the way to characterize it. But the -- but at the end of the day, it still seems to me that what Ellerth tells you you should look at is primarily whether there is a -- a direct economic effect. And if there is no direct economic effect, then what you ought to be looking for is whether or not the -- the conduct is severe or pervasive, and -- and if it is --
05-259 +++$+++ 40259 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay, but --
05-259 +++$+++ 40260 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- then, it seems to me, there's a separate action. But that's not the claim she brought in this case.
05-259 +++$+++ 40261 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay, but do you -- do you agree that direct economic effect cannot be the only criterion here?
05-259 +++$+++ 40262 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't think it can be the only criterion. I think that you would have a situation -- and a lot of times the -- the economic effect will be either immediate or potentially indirect in the sense of the hypothetical the commission uses in its guidelines where a butcher is shifted over to be a cashier. And in that situation, that's a fundamentally different job with a fundamentally different career path. And it may not have any economic effects in the short run, but in the long run, it will have. And that may be an answer in part to your question, Justice Souter, about just one big job classification that --
05-259 +++$+++ 40263 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask you this hypothetical? Supposing people like to work the forklift, but nobody had a -- a right to do it, but they traded every day or something like that, and the company put out a notice that said anybody who -- who files a claim will not be eligible to ride on the forklift ever again.
05-259 +++$+++ 40264 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. That's a quid pro quo violation.
05-259 +++$+++ 40265 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That would be a violation?
05-259 +++$+++ 40266 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court held in -- in Ellerth that those kinds of quid pro quos are -- are subject to liability.
05-259 +++$+++ 40267 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So anytime there's an advance notice that you will -- there will be some kind of action in response to a -- a claim, that would be retaliation.
05-259 +++$+++ 40268 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, because the employer -- I mean, employers aren't going to --
05-259 +++$+++ 40269 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even though it was not an adverse job action.
05-259 +++$+++ 40270 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- adopt that kind of a standard. I'm sorry, Justice Stevens?
05-259 +++$+++ 40271 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even though it did not amount to -- did not have any economic effect on the employee.
05-259 +++$+++ 40272 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in that -- you know, in -- under those circumstances, it seems to me that the standard is slightly different for quid pro quo violations than they are for simply tangible employment actions.
05-259 +++$+++ 40273 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So a quid pro quo violation does not have to be an adverse employment action.
05-259 +++$+++ 40274 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- right, because the -- there are -- I mean, they are all adverse employment actions. There's a tangible employment action. There's a quid pro quo action, and then there's the --
05-259 +++$+++ 40275 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It seems to me that -- that interpretation requires you to interpret 703 and 704 differently.
05-259 +++$+++ 40276 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I -- I don't believe so because I'm -- I'm -- what I'm trying to do at least is to apply the Ellerth standard under 703 for each of the three elements in the same way that I'm trying to apply them under 704.
05-259 +++$+++ 40277 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- but are you? I'm -- I'm a little concerned that -- that you're trying to persuade us to interpret 704 the same as 703 at the expense of watering down 703. I don't understand how you can concede that -- that refusing to invite somebody to lunch, if it's more than -- more than a single lunch, could be a violation of 703. How does that come within the -- with respect to compensation, terms, conditions, or privileges of employment?
05-259 +++$+++ 40278 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that if -- if you could certainly envision a circumstance -- and again, this goes to the pervasiveness of it. It's -- it's a fundamental, sort of constructive adjustment of your employment situation. Terms and conditions is a fairly capacious term, Justice Scalia, and I could well imagine that if you were being systematically treated differently and differently from every other employee --
05-259 +++$+++ 40279 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not -- not by the --
05-259 +++$+++ 40280 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- then at some point it becomes severe or pervasive in a way that -- that, it would seem to me, would raise a jury trial issue.
05-259 +++$+++ 40281 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And -- and going to lunch is the conditions of employment.
05-259 +++$+++ 40282 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Going to lunch once, no.
05-259 +++$+++ 40283 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Privilege.
05-259 +++$+++ 40284 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Going to lunch twice, I'm sure not. But, you know, if it is a continuous process, at some point it strikes me that it would become somewhat problematic. Yes.
05-259 +++$+++ 40285 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But let's get the --
05-259 +++$+++ 40286 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But -- and that is why it's important, and it goes back to Justice Breyer's question, if I can go back to that for a second, because he asked about the D.C. Circuit's opinion, which, you know, of course, adopted the EEOC's now-discredited theory of this case and, again, untethers 703 from 704. That's the problem with the D.C. Circuit's interpretation.
05-259 +++$+++ 40287 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why? Why? You see, I can think of a million things. I can't think literally of a million, but it does seem --
05-259 +++$+++ 40288 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I suspect you could, actually. (Laughter.)
05-259 +++$+++ 40289 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- to me there are many, many possible ways of really discouraging a worker from complaining that are not quite as tangible as the list under 703. So the D.C. Circuit -- and I think even the SG here, which seems like a variation of the D.C. Circuit -- much -- the standards seem much -- not as different as you might -- as it seems to me you're saying. But -- but they're -- they're trying to be a little vaguer and a bit broader than the specific Ellerth language because they recognize there are many possible ways of seriously injuring a person with the intent or -- to stop them from complaining. That gives effect to the language differences.
05-259 +++$+++ 40290 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-259 +++$+++ 40291 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It leaves it up to case-by-case. It leaves it up to the administrative agency, all in areas where I frankly don't know one lunch from another.
05-259 +++$+++ 40292 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry?
05-259 +++$+++ 40293 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't know one lunch from another often, but the -- the EEOC might and -- and so might a judge who hears evidence.
05-259 +++$+++ 40294 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer --
05-259 +++$+++ 40295 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that's the virtue of their standard.
05-259 +++$+++ 40296 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I mean, you can ask Mr. Garre what his view is with respect to the waiting on the position of the Solicitor General here. But it still seems to me that there is a fundamental difference between the way the D.C. Circuit is analyzing this case and -- and the way this Court analyzed it Ellerth. And the fundamental difference is -- I agree with you. There are other circumstances that are not tangible employment actions that are, nevertheless, actionable under both 703 and 704, but those are -- those are taken care of under the Meritor standards. The -- the assumption is that they are both retaliatory in purpose and that they are severe or pervasive.
05-259 +++$+++ 40297 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about the --
05-259 +++$+++ 40298 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ When you reach that standard, then you create a question of fact for the jury.
05-259 +++$+++ 40299 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- what about the Seventh Circuit case that posed the question of same job, same character of work, except that the employee had flex time, which enabled her to take care of her disabled child when she could leave at 3:00, and she's just changed to -- same job except it's got to be 9:00 to 5:00. Would that fit within your definition?
05-259 +++$+++ 40300 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I doubt it actually, Justice Ginsburg, because I think typically mere inconveniences, even -- even significant inconveniences, have traditionally been rejected as bases for taking an issue to the jury.
05-259 +++$+++ 40301 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even though the jury has made a finding that the only reason that was done was in retaliation for her having filed a complaint.
05-259 +++$+++ 40302 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, every one of these cases is based on the assumption that the only reason it was done is because of retaliation.
05-259 +++$+++ 40303 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right.
05-259 +++$+++ 40304 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The lunch is in exactly the same position.
05-259 +++$+++ 40305 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you would say that's outside --
05-259 +++$+++ 40306 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So that can't be the standard.
05-259 +++$+++ 40307 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that would be outside 704 if this is done deliberately in retaliation for filing a complaint. Just switch her from a work routine that she could easily manage and still take care of her family and to one that is impossible for her to manage.
05-259 +++$+++ 40308 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, if you adopt the other approach, what you say is that every change in assignments within the ordinary course of business is subject to claim by a plaintiff --
05-259 +++$+++ 40309 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not -- not --
05-259 +++$+++ 40310 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in any situation --
05-259 +++$+++ 40311 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- not every --
05-259 +++$+++ 40312 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- where he or she thinks she's been retaliated against.
05-259 +++$+++ 40313 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not everyone, but only the ones that would, in fact, deter a reasonable person from filing a charge. And that would not be every trivial --
05-259 +++$+++ 40314 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and again, the problem with that legal standard, Justice Ginsburg, is it is not the same one that applies under section 703, and it seems to me there's no reason to provide greater protections under 704 to plaintiffs than you would have under section 703.
05-259 +++$+++ 40315 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why wouldn't you say that Justice Ginsburg's hypothetical would be covered by the Meritor standard, if in fact this woman couldn't -- couldn't really do the job with this -- with this new time assignment? Why wouldn't it qualify as being sufficiently severe or persuasive --
05-259 +++$+++ 40316 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Pervasive.
05-259 +++$+++ 40317 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- to alter the conditions of the victim's employment and create an abusive work environment?
05-259 +++$+++ 40318 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I mean, to be sure, that's a possibility -- that's a possible answer.
05-259 +++$+++ 40319 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that -- this is a peculiar effect on one person, but for most people --
05-259 +++$+++ 40320 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it could be severe enough.
05-259 +++$+++ 40321 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- most people it wouldn't matter. But --
05-259 +++$+++ 40322 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, but the question is, is it severe, I think, to that person? I think that is the Meritor standard, is, is it severe to the individual plaintiff?
05-259 +++$+++ 40323 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you're changing your answer. You originally told me that, no, that that wouldn't fit because it's the same job.
05-259 +++$+++ 40324 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Well, that's because that's the tangible employment aspect of it. Justice Scalia says you're right about -- well, I don't know if he said I'm right about the tangible -- tangible employment aspect of it. But he says, you know, as you recognize, there is a second category of claims, and the second category of claims is the Meritor standard, which I've been arguing for.
05-259 +++$+++ 40325 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't a change in the hours that a person works a change in the terms and conditions? You change your -- somebody's shift from the day shift to the -- to the night shift, isn't that a change under 703?
05-259 +++$+++ 40326 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it probably depends on whether or not it was the expectation of the -- of the employee that -- that he or she would have a certain set of hours, because an awful lot of employees take a job with the expectation that they'll work any hours. Now, you may get into a particular pattern and -- and even set yourself up for that, but if -- if the expectation is that you were going to work potentially 24 hours and you shift from one set to another, that I don't think is a change in terms and conditions of employment within the meaning of 703. If I could just shift slightly to the suspension, pending investigation, part of the case. And there are two parts, and it's important to recognize that if the Court sets aside either one of those claims, then we're entitled to a new trial because the damages flow directly from both and there was no specific -- there was no special verdict in this case to identify what -- where the damages come from. And our argument with respect to the suspension, pending investigation, is that there was simply no final action taken by the employer in this context until 15 days later. She was suspended for insubordination by her supervisor. Under the collective bargaining agreement, all she had to do was send in a letter. If she didn't want to send in a letter, the -- the decision would become final and there would be final action that's clearly subject to a claim under section 704. She did send in a letter. There was an informal investigation. The informal investigation concluded that there was no basis for suspending her for insubordination, and she was reinstated with complete back pay.
05-259 +++$+++ 40327 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So she was docked in her pay for 2 weeks. I mean, for some people, this would be a real hardship, no pay for 2 weeks. I mean, it's -- it's final as far as she's concerned, for those 2 weeks.
05-259 +++$+++ 40328 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Except that it was all -- it was -- it was reinstated.
05-259 +++$+++ 40329 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, well, they went back later and -- and made up for their mistake. But -- but the -- it seems to me the issue is whether a mistake was made that -- that was final action that hurt her. I don't see why -- it's certainly official action. I mean, you can't say --
05-259 +++$+++ 40330 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is official action.
05-259 +++$+++ 40331 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- it's not official just -- just because it was decreed by a -- you know, a track boss or something. It -- it was an action of the company because the company cut -- cut off her pay for 2 weeks. Right?
05-259 +++$+++ 40332 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, but then the question still remains, Justice Scalia, for it to be a tangible employment action, is it -- is it available to the employer to cure, when the purpose of this entire statutory scheme is to avoid litigation and to provide informal mechanisms for protecting the rights of the employee.
05-259 +++$+++ 40333 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it didn't --
05-259 +++$+++ 40334 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but if the employer --
05-259 +++$+++ 40335 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- it didn't cure. I mean, it was 37 days, right, that she went without pay?
05-259 +++$+++ 40336 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-259 +++$+++ 40337 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Not just 2 weeks. And she understandably experienced much stress in that time. She worried about how she would be able to feed her children, could she get them Christmas presents. That was -- there was nothing that she got, when it was determined that she hadn't been insubordinate, that compensated her for that stress and, indeed, for the medical expense that she incurred because she had that stress.
05-259 +++$+++ 40338 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, there still remains the core question of whether this is a tangible employment action. It's not a long-term action. It's not an economic effect, and the fact of -- of anxiety -- that happens all the time in the work place. It's not actionable.
05-259 +++$+++ 40339 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But when -- when somebody is suspended, it seems to me that is as tangible as it can get. It gets registered officially. This person is suspended, and if she doesn't do something about it, she's out.
05-259 +++$+++ 40340 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But she did something about it, and it was corrected, Your Honor. I'd like to --
05-259 +++$+++ 40341 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But --
05-259 +++$+++ 40342 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but --
05-259 +++$+++ 40343 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- official action is -- is different from -- the problem with Ellerth was that if there's nothing formally that had been done, the employer -- this -- Ellerth was concerned with vicarious liability, nothing official. There had been none -- the boss wouldn't know about it. But somebody who is suspended, that is an official -- that's a tangible action.
05-259 +++$+++ 40344 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To be sure. And the question is, can you cure it? And that's the fundamental issue we ask you to decide. Can I reserve the balance of my time?
05-259 +++$+++ 40345 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Phillips. Mr. Garre.
05-259 +++$+++ 40347 +++$+++ FALSE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: Because title VII prohibits an employer from suspending an employee for 37 days without pay because of her sex or from reassigning her from one responsibility that's material different -- materially different than another responsibility because of her sex, it prohibits an employer from doing so because she filed an EEOC charge complaining about discrimination. Title VII's anti-retaliation provision creates an additional basis for unlawful discrimination, but it does not create a different or more expansive concept of discrimination in the statute's core prohibitions.
05-259 +++$+++ 40348 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Counsel, in -- in the absence of any suggestion that the collective bargaining process is also infected with sex discrimination, why can't we rely on that process to give some basis to the job descriptions? In other words, forklift operator was not a separate job from rail yard employee, and if the union wanted to make them separate jobs, they could negotiate that, but they didn't. So why -- why do we regard that as a material change when you're doing one part of a job as opposed to another part of a job?
05-259 +++$+++ 40349 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Well, I think the problem that Justice Souter identified, I believe, where an employer or even a collective bargaining agreement could identify categories that had so many different responsibilities --
05-259 +++$+++ 40350 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Well, but the difference there is that's an employer unilaterally. We don't have that here. The employer is dealing with the union. If the jobs really were that different, the union would categorize them differently and negotiate for that.
05-259 +++$+++ 40351 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Here, what we know and what the jury found -- and this is actually -- it's important to keep in mind. This is a jury finding. The jury was instructed properly on what would constitute a material adverse employment action. The instruction is at page 63 and 64 of the joint appendix. One of the conditions that a jury could find an adverse action based on was a materially significant change in responsibilities. The jury heard evidence on the different types of responsibilities that the Respondent performed, and it concluded that being changed, being reassigned after 3 months of working the forklift, to manually repairing railroad track was a materially significant change in responsibilities. That's the language that comes from this --
05-259 +++$+++ 40352 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Doesn't your approach require an employer to keep shuffling the employees around so they don't get a sort of adverse possession of particular types of job responsibilities?
05-259 +++$+++ 40353 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ I don't think so. I think it would be ultimately a jury question in this particular category of claims. As -- if -- if it were the case that employees typically worked the forklift and then the next day worked the -- worked the track, then the next day did something else, then I don't think a jury could find that there was a material -- materially significant change in responsibilities.
05-259 +++$+++ 40354 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ No. That's his point. I mean, that's his point, that -- that the one way to avoid the problem is to keep shifting people around.
05-259 +++$+++ 40355 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Well, that -- that --
05-259 +++$+++ 40356 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ That would have been impossible here because there was no one in that entire unit who could operate a forklift except this one employee.
05-259 +++$+++ 40357 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ That's right. And -- and if -- if employees were shifted around for one reason or the other, then I still think it would be unlikely to be a material change in their responsibilities when they went --
05-259 +++$+++ 40358 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Is it -- is it -- was it in this category, this track category? Because it was something new for the employer. There hadn't been a forklift operator. I gather there had only been one before.
05-259 +++$+++ 40359 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ There was testimony to that effect, Justice Ginsburg. Also, when -- when Respondent was hired, they had just lost their existing forklift operator, someone who had done that. In any event, I don't think the evidence will permit a court, if it agrees that material adverse employment action is the test, to overturn the jury's finding that the change here was materially adverse.
05-259 +++$+++ 40360 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ With respect to the suspension, what -- what if she had been -- during the process of investigation, she had been allowed to stay on the job with pay? In other words, the facts are the same. It's just that the -- the sort of stay process works the other way and she's not relieved until the end of the company's investigation. Is the initiation of that an materially adverse employment action?
05-259 +++$+++ 40361 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Well, I think most courts have held that where you have suspension with pay, then you don't have material adverse employment action. Now, at some level, if the suspension is so long, 6 months, a year, then effectively you could have a different type of material adverse action, but where it's a 2-week suspension to investigate, that would not be material adverse action. In fact, as -- as the AFL-CIO amicus brief points out, I think, that's the favored practice in the industry. Now, we -- we do think that with respect to the standard, that as this Court recognized in Faragher, it makes good sense to harmonize discrimination standards. And here, we think that Congress intended the courts to harmonize the standard for section 704, the anti-retaliation provision, with the standard for section 03, the act's core prohibitions. Justice Scalia, it does -- the section 704 does omit the phrase, terms, conditions of employment, but as we've explained in our brief, we think it is reasonable to read the discriminate against as a shorthand for the unlawful employment practices identified in section 703. It's also important to keep in mind that Congress knows how to write a broader anti-retaliation statute when it wants to. Look at the ADA, the Family Medical Leave Act. These are statutes which, by their terms, prohibit employers from any attempt to intimidate, coerce, threaten, or interfere with the exercise of rights. Look at the Family Medical Leave Act --
05-259 +++$+++ 40362 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ I don't know if that hurts you or helps you. I mean, that -- that eliminates what seems to me is the strongest argument of the -- of your side, which is that it makes no sense to impose greater sanctions upon somebody who -- who files a complaint than it does upon somebody who -- who violates somebody's race, religion, or whatever by -- by discriminating.
05-259 +++$+++ 40363 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Well, we --
05-259 +++$+++ 40364 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ You're telling me it does make sense, that we've done it in other areas.
05-259 +++$+++ 40365 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ With respect, what I'm telling you is that Congress has determined in that some areas it may be important to have a broader provision protecting against intimidation and coercion. I mean, if the Court interprets discriminate against to include all that kind of conduct, then it renders those provisions redundant.
05-259 +++$+++ 40366 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Does your test cover the person who's a former employee who complained under title VII, wants a recommendation letter, and isn't given one for retaliation -- as retaliation for having complained under title VII?
05-259 +++$+++ 40367 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ It does, Justice Ginsburg. As the Government explained in its brief in the Robinson case, post-employment references are reasonably viewed as a term, condition, or privilege of employment because it's routine for employees to request them and routine for employers to provide them. Now, if I could address the --
05-259 +++$+++ 40368 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Well --
05-259 +++$+++ 40369 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ -- the reasonably likely to deter test that you referred to, Justice Breyer. If the Court disagrees with our submission that the statute should be written in pari materia, then as we said in our brief, we think that that is the next best test to adopt. But -- but the Court should -- it should be clear to the Court how much broader that test is than the material adverse action test.
05-259 +++$+++ 40370 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ It's not -- it's not -- the -- the words of the statute that I think are relevant is it -- is it -- you can't discriminate with respect to his compensation, terms, conditions, or privileges of employment. Now, the words I just cited are present in 703. So that's the substantive offense. Those words, as Justice Scalia pointed out and others, are missing in 704, and that suggests that you could have a broader definition than those words I just cited as to what counts as harm flowing from a discrimination. That's the statutory argument. And then you add, there could be good reason for that. These people typically are at work and there are lots of subtle forms of harm and some not so subtle.
05-259 +++$+++ 40371 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Well, again, we think Congress knows how to write that statute, and it does it differently. It has a different provision. For example, in the Family Medical Leave Act, not only included the coercion and intimidation language, it also said in any manner discriminate. We also think, again, going to our interpretation of discriminate against, it makes sense to read that for a -- as a shorthand for the -- the unlawful practices spelled out and detailed in section 703.
05-259 +++$+++ 40372 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Well, I'd be curious. In the -- in the Seventh Circuit, they have a test, I gather, like the D.C. Circuit, which you've characterized as broader. Have there suddenly been a flow of these claims towards the Seventh Circuit? Is there any empirical data that this concern that has been brought up is empirically present in the Seventh Circuit?
05-259 +++$+++ 40373 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Two -- two points with respect to that. First, no, I don't know of empirical data in the Seventh Circuit. Second, we know that retaliation charges are -- are rising. They've more than doubled in the past decade. And third, the Seventh Circuit test is essentially like the -- the test that this Court applies in the First Amendment context to determine when there's retaliation. This Court in the Rutan case observed that something as trivial as failing to hold a birthday party for an employee could satisfy that test. Applying this test in the lower courts, courts have held that an officer not being able to see his police dog would be -- could go to a jury, that -- that a shunning conduct less than hostile work environment could go to a jury, that failing to hold employee feedback meetings could go to a jury --
05-259 +++$+++ 40374 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ But if 704 doesn't incorporate 703 why would the -- the EEOC test be the next best test? If Congress -- there's nothing in 704 that refers to the EEOC standard, is there?
05-259 +++$+++ 40375 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ That's -- that's true. I mean, at that point, we think it would just be a policy decision. Again, we think that Congress made the policy decision that the tests should be harmonized.
05-259 +++$+++ 40376 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Well, Congress could have -- could have said -- could have thought not only do we not want people who -- who file complaints not to suffer those things that would deter a reasonable person from filing a complaint, but we just don't want them to suffer at all for having engaged in this protected activity.
05-259 +++$+++ 40377 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ That's possible. That would be --
05-259 +++$+++ 40378 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ What -- what basis would there be for deciding that Congress had one policy objective as opposed to the other there?
05-259 +++$+++ 40379 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ We think that the balance that Congress struck in title VII was from -- between deterring all forms of discrimination and not -- not allowing every employee grievance to become a Federal court case. I think the Court has recognized repeatedly not all work place conduct that's offensive or even harassing violates title VII, and we think that that same compromise should inform the Court's interpretation of section 704 of the statute. If there are no further questions.
05-259 +++$+++ 40380 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ None +++$+++ Thank you, Mr. Garre. Mr. Donati.
05-259 +++$+++ 40382 +++$+++ FALSE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, may it please the Court: When Burlington Northern reassigned Ms. White from the forklift to the track and then removed her without pay for 37 days during Christmas, it, quote, discriminated against Ms. White under any reasonable standard, the EEOC standard, the plain language standard, or the standard that the unanimous en banc court of the Sixth Circuit adopted. Whatever standard the Court applies, Ms. White should prevail, if it's a reasonable standard, other than that of the -- of the Petitioner.
05-259 +++$+++ 40383 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What if she'd been operating the forklift for only a week and then she was reassigned? Would that still be discrimination under any standard?
05-259 +++$+++ 40384 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect to the motivation, if there -- if there was a motivation, a retaliatory motivation, according to the proper reading of 704, it would be because what that aims at is motivation. And the question was asked, and -- and a legitimate question was asked. Why would Congress make 704(a) more expansive than 703? Well, if you look at the text of 704(a) at the beginning of the caption, it says, discriminate in assisting, participating, or cooperating with enforcement. This -- this provision, as the dissent said in the Jackson case last term, in referring to retaliation, the dissent made this -- made this point about the relationship between retaliation and the primary right. The dissent indicated that the primary right is being protected by the retaliation provision, that without the retaliation provision, the primary right could be impeded, inhibited, and prevented from individuals having access to the remedial mechanisms. It doesn't take much to intimidate an individual from filing a claim of discrimination if they have an economic interest. It takes much, much less to intimidate a witness to come and testify when they have no basis. What 704 was aimed at was allowing the law enforcement agency here, the EEOC, to have access to complaints about discrimination and witnesses, allowing the courts to have access to complaints and witnesses because without that free access and without 704 acting as a guardian around the primary rights, the primary rights would be eviscerated. This is a perfect example of -- of a case where that's the situation. You have a -- a woman here who did exactly what this Court asked her to do in Ellerth. She complained internally about sexual harassment. She was hired because of her forklift responsibilities. She was immediately put on the forklift. She performed for 90 days competently as a forklift operator. No complaints about what she did. Because she complained about sexual harassment, the jury found, and correctly, she was removed from the forklift.
05-259 +++$+++ 40385 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm -- I'm a supervisor, and the employee files a complaint against me as a supervisor. Thereafter, I am not as friendly to that employee as I used to be. I don't smile and say, good morning, how are you, as I used to. All right? (Laughter.)
05-259 +++$+++ 40386 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And you wouldn't expect me to. This person has, you know, hauled me onto the block. Now, am -- am I discriminating against that person?
05-259 +++$+++ 40387 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Scalia.
05-259 +++$+++ 40388 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm not? I'm not treating her the way I did before.
05-259 +++$+++ 40389 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Until there is some use of official authority that affects that individual, you're not discriminating. That's a -- that's a personal matter between you and the individual.
05-259 +++$+++ 40390 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Sort of like taking her to lunch.
05-259 +++$+++ 40391 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If it's -- if it's a blue collar worker and it's -- it's not part of their responsibility and they sometimes eat together in the lunchroom or not, that would not be. However, if it is a --
05-259 +++$+++ 40392 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now, you say it -- it has to be part of my -- it doesn't have to relate to her terms and conditions of employment, you say --
05-259 +++$+++ 40393 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No --
05-259 +++$+++ 40394 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- because it's not the same as 703. But somehow you say it -- it has to. Does it have to or not have to?
05-259 +++$+++ 40395 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are situations where it would be broader than 703. 704 would be broader. An example. If a CEO of a company came up to an African American male and punched him because he's Black, that would not rise to the level of a hostile work environment under your test. It wouldn't alter that individual's terms and conditions of employment. However, if the CEO came up to an individual who had filed a charge of discrimination -- of discrimination, and said, I don't like you filing charges of discrimination, and pushed that individual, that would have the effect of impeding individuals from complaining. And that's -- that's a situation that's different because Congress anticipated that -- that retaliation is only as varied as the human imagination. Congress could have easily --
05-259 +++$+++ 40396 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, I worry about that, as -- as varied as the human imagination. Juries can have wonderful imaginations. I mean, that -- that is the problem. Is it meant to be this -- this uncontrolled, this uncabined?
05-259 +++$+++ 40397 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
05-259 +++$+++ 40398 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What -- what is your criterion that is going to stop every little thing from -- from being deemed a retaliatory measure, such as not saying good morning to this employee?
05-259 +++$+++ 40399 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are several things that are built into the statute. First is 701(b). It has to be an act of the employer, and those trivial matters --
05-259 +++$+++ 40400 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, I understand that. But almost any act of his subordinates will be deemed act of the -- of the employer where retaliation is concerned, I'll bet you. What else besides that?
05-259 +++$+++ 40401 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Plus, you always have to show causation, and many, many cases are dismissed on the basis of summary judgment, even termination cases on the basis of causation.
05-259 +++$+++ 40402 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'll give you causation. But I'm talking about the triviality -- the triviality of the action in question. Is there no test that eliminates a trivial action from the aggrieved employee who -- who wants to litigate?
05-259 +++$+++ 40403 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, both the EEOC test, as well as our test, is one based upon a reasonable person under all of the circumstances. And -- and the trial courts frequently say under this set of --
05-259 +++$+++ 40404 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ A reasonable person would what -- would what?
05-259 +++$+++ 40405 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under our standard, it would be --
05-259 +++$+++ 40406 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ A reasonable person would consider it to be?
05-259 +++$+++ 40407 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Adverse.
05-259 +++$+++ 40408 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Adverse.
05-259 +++$+++ 40409 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If it was -- if it was unfavorable to the plaintiff. On the EEOC standard, it would be if it deterred an individual from filing a charge. And, Justice Scalia, we have cited favorably the EEOC standard. What we were asked to do here --
05-259 +++$+++ 40410 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why is the EEOC standard any more based in the text of the statute than -- than the standard proposed by your adversary here?
05-259 +++$+++ 40411 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's why we proposed one that's based with what the statute means. And -- and the statute is very clear. The plain language is unambiguous. That's our first test, which is unfavorable to the employee based upon an objective standard. But if the Court felt it necessary to -- to back to a position that was not quite so expansive, the EEOC standard is -- is the one that's most rational because it's based in the purpose of 704(a).
05-259 +++$+++ 40412 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You won on the basis of the standard that the Sixth Circuit used, which was not your standard and not the EEOC standard. Why should this Court deal with anything other than that the petitioner's standard is unsatisfactory, that at least the Sixth Circuit standard -- why should the Court deal with the universe of cases when it has this case before it, two actions, and a unanimous Sixth Circuit judgment that says these two actions fall within 704?
05-259 +++$+++ 40413 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, you're exactly correct. You don't have to reach the issue about how expansive 704 is here. You can affirm the Sixth Circuit's decision based upon the material adverse employment action standard that they articulated, that was litigated below, that the defendant did not object to, and which we won on.
05-259 +++$+++ 40414 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Counsel, you said earlier that the act -- one of the protections against trivial charges was that the act had to be the act of the employer. If the employer sets up a review system in which the final act of the employer is the decision, why is a preliminary charge, initial suspension, review -- why are those also considered acts of the employer?
05-259 +++$+++ 40415 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, I want to answer one question related to that. The collective bargaining agreement did not cover the forklift. That's in the trial transcript on page 524. It was a new position. It was not covered by the collective bargaining. So they --
05-259 +++$+++ 40416 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What does that mean, it was not covered by the collective bargaining agreement? Presumably you paid -- the person who did that was paid wages pursuant to the collective bargaining agreement.
05-259 +++$+++ 40417 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was not a defined job within the collective bargaining agreement.
05-259 +++$+++ 40418 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right.
05-259 +++$+++ 40419 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And if you look at the -- the job title, which is part of the joint appendix, forklift is not mentioned, and it was not part of that. But to answer your question specifically with respect to these facts, the -- in this case here, she was discharged. If you look at the joint appendix, on rule 91(b) -- and that's found at page 54 and 55 of -- I'm sorry. 55 of the joint appendix. This is the rule under which she requested the, quote, investigation. By its very terms, it doesn't even apply until an employee is, quote, disciplined or, quote, dismissed. She was dismissed when she was removed from service. Then she asked for a hearing under subpart (b), and she was given an investigation. This Court, in its jurisprudence dealing with statute of limitations, said in the Morgan case that an act of discrimination occurs when it happens. Well, when she was happened -- when this happened, she lost pay, she lost benefits. She was terminated. Even -- even their own witness, Roadmaster Brown, testified had she not asked for an appeal, she was terminated. So it was a discrete act at that time.
05-259 +++$+++ 40420 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Your position is that it would be an -- it would be a covered employment action even if none of that were true, she didn't lose pay, she didn't lose benefits, so long as there was the initiation of the disciplinary action. You regard that as sufficiently adverse under 704.
05-259 +++$+++ 40421 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, under these facts, it was sufficiently adverse because she lost pay. Now, in a -- in a theoretical sense, if she had not lost pay, that still could be adverse under 704(a). It depends upon the effect and the motive. I don't think that anyone would quarrel under 703 if an African American was suspended without pay because of race, that that would be actionable. Why would it not be actionable in this context? There's a difference between damages and whether or not there's actionability under this one little part of -- of the claim. Perhaps if she was -- was suspended for a retaliatory motive and 5 days later she was returned, she may have no damages, and -- and the claim might -- but in terms of --
05-259 +++$+++ 40422 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Other than eligibility for punitive damages.
05-259 +++$+++ 40423 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, assuming that you could get through the hurdles. And I don't think punitive damages would necessarily sound there. In the Kolstad case, the Court indicated one factor to consider would be how quickly the -- the defendant corrected the situation. I mean, if you have a -- if there's a legitimate process that's -- that's available and a supervisor who has authority to suspend does that for a retaliatory motive and -- and that process corrects it, it may be a factor in punitives, but it's not a factor whether a -- an act has been taken because the act is a discrete act. It caused her to lose compensation and -- and to lose benefits. So it could affect the punitive damages. Now, with respect to the -- the statutory construction -- well, let me address the -- the forklift issue just a -- a little bit further. If you take the position that the -- the petitioner has here, Ms. White -- it's a jury finding. Their witnesses testified -- went from the most easy or one of the most easy positions to the most difficult position because she complained about sexual harassment. That's the finding of fact. They don't dispute the findings of fact. That's the finding of fact. So if -- if he's correct, tomorrow, if his -- his position is affirmed, they could tell everyone who complains about sexual harassment, that if you do that, we're going to transfer you to the most difficult position in the company.
05-259 +++$+++ 40424 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Suppose -- suppose I disagree with you as to the standard, that is, I think 704 and 703 both require something related to the employment. Would -- what would the outcome be? Would -- would the case have to go back to be submitted to the jury under that standard? What standard did the jury find --
05-259 +++$+++ 40425 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if -- if you look at -- if you look at the joint appendix at page 63, the trial judge actually instructed the court -- instructed the jury, listing six factors. Those six factors are listed in a footnote in Ellerth, which you cite favorably as what the standard is -- or what the standard is for vicarious liability. So the court -- the jury was instructed on material adverse employment action standard. It was tried on the material adverse employment action standard. I argued that the forklift position was materially adverse. The defendant, if you look at the transcript of the closing at pages 48 and 49, didn't even challenge that it was adverse. Everybody that heard the proof, common sense told you that when you went from a forklift running things around to pulling out railroad ties, it was adverse. So to answer your question, Justice Scalia, we traveled all the way up to this Court on the material adverse employment action standard, and we won.
05-259 +++$+++ 40426 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What does -- what does material mean?
05-259 +++$+++ 40427 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's a great question, and we -- (Laughter.)
05-259 +++$+++ 40428 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and we -- we truly struggled with that. We found nothing in the statute, the text of the statute to say material. Where it uses adverse, at -- at section 703(a)(2), it uses the term adverse, but it doesn't use it with the term material. And --
05-259 +++$+++ 40429 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, do -- do you think it does anything more than just eliminate clearly de minimis action?
05-259 +++$+++ 40430 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. I didn't --
05-259 +++$+++ 40431 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do -- do you think the -- the materially modifier here does anything other than eliminate obviously de minimis behavior on the part of the employer?
05-259 +++$+++ 40432 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think it does anything other than that. It could also be interpreted as -- as this Court said in the -- in the Wrigley case involving interpretation of statutes, that there's a de minimis rule. It could -- it could also be applied that way, that every -- every statute -- there's a -- that -- that construction applies some de minimis level view. But in terms of this case, this was definitely material. I mean, it was substantial injury, substantial action to -- to Ms. White. But with respect to the forklift, their witnesses testified -- and we cite at pages 2 and 3 of the brief -- that they considered it easier. The supervisor, Mr. Brown, testified that the men considered it easier. And it clearly was.
05-259 +++$+++ 40433 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What -- what if she operated the forklift usually 3 out of 5 days, and the other 2 days was pulling up the rail ties and -- and the shift was now she does -- operates the forklift 2 out of 5 days and 3 out of 5 days she's pulling up rail ties? Is that materially adverse?
05-259 +++$+++ 40434 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That probably would not -- I probably could not convince a jury that that was materially adverse. But --
05-259 +++$+++ 40435 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, that isn't the test, I mean, whether you can convince a jury. I think you -- you have to acknowledge that -- that before we -- we say that these trial instructions were adequate to -- to give you your victory, we -- we have to find that at least a reasonable jury could conclude under section 703 that -- that both of these -- both of these adverse actions qualified as discrimination under 703, if -- if we're going to use that test. Right? You acknowledge that.
05-259 +++$+++ 40436 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I acknowledge and the facts -- and the Sixth Circuit unanimously affirmed that -- that the facts were there. And I could -- I could go on for 30 minutes about the facts, and they're -- they're contained in the first --
05-259 +++$+++ 40437 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay, but that -- that is at least what -- what's before us here, that if -- if we go the 703 equals 704 route, we would have to conclude, in order to affirm here, that a reasonable jury could find. This jury did, but we'd have to find that that's reasonable. Right?
05-259 +++$+++ 40438 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. You know, I would like to address two things that have been mixed. Apples and oranges have been mixed here about tangible employment action, and that's the standard this Court has adopted. What the Court did in Ellerth was apply the rules of vicarious liability in a discrete set of -- of cases, harassment cases. Harassment cases arise out of the word condition. As you indicated, sexual harassment has to alter the condition, and it has to be severe or pervasive. And what the -- the petitioner is -- is saying is that because of your application of tangible employment action to vicarious liability, that you really defined what constitutes discrimination. Well, that's not what the -- the ruling was. You were strictly limited to whether instances of vicarious liability, when -- when employers will be found liable. At the outset, that needs to be, I think, clarified that it was not a finding of what constitutes discrimination. And with respect to also the Ellerth situation, any test that this Court adopts should not be a per se test where some things are per se legal, because when you say that an act of retaliation is per se legal, it provides safe harbor for people to do things to individuals. Most employers are --
05-259 +++$+++ 40439 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Am I right in thinking -- I just want to clarify this -- that in the circuit court, they applied a pretty tough standard, namely, a standard that sounds a lot like Ellerth, the Kocsis, or whatever it is? Tangible employment actions, a significant change in employment status, hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. And that's basically what the jury was instructed.
05-259 +++$+++ 40440 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
05-259 +++$+++ 40441 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And you won under the toughest standard.
05-259 +++$+++ 40442 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, a very tough standard.
05-259 +++$+++ 40443 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So in a sense, you have nowhere to go but up. (Laughter.)
05-259 +++$+++ 40444 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly right. And I find -- and I find myself, Justice Breyer, here sort of arguing against the standard that I won under.
05-259 +++$+++ 40445 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You don't care what standard --
05-259 +++$+++ 40446 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I don't care what standard it is.
05-259 +++$+++ 40447 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- for this case.
05-259 +++$+++ 40448 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't care what the standard is for this case. But if you adopt a -- a standard that is -- is broad -- or you have to adopt a national standard or -- and you don't have to here. You don't have to make these -- make these findings. But if you do and you adopt a material adverse employment action standard, there always needs to be a provision that prevents per se rules because -- and in the Sixth Circuit, they talk about unique circumstances. Some other circuits talk about unusual or exceptional circumstances because if you -- if you black letter something, that this is legal retaliation, employers who want to will engage in that process.
05-259 +++$+++ 40449 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, and the other argument is that if you don't do it, there's no way to -- to get a case dismissed before it goes to a jury. You're saying every claim is going to be a jury trial. I mean, that -- you know, come on.
05-259 +++$+++ 40450 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, every claim would not be a jury trial because you're going to have to show the causation issues and damages issues. And --
05-259 +++$+++ 40451 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But the triviality issue would be out of the case. No matter how trivial, it goes to a jury. That's -- that's what you want us to say.
05-259 +++$+++ 40452 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, that's not what I want --
05-259 +++$+++ 40453 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, then we have to have some per se rules.
05-259 +++$+++ 40454 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- the rule that you could apply that would not have per se rules and would ferret out any kind of -- of trivial matters would be the EEOC standard with a de minimis rule.
05-259 +++$+++ 40455 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Don't you want us to exclude this ultimate employment decision? I think that's one thing. In order to win, you have to say what counts is the suspension and not the ultimate decision.
05-259 +++$+++ 40456 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. Under the ultimate employment action standard of the Fifth Circuit, the -- the suspension would be in question.
05-259 +++$+++ 40457 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So for you to win to preserve your Sixth Circuit victory, that would have to be ruled out.
05-259 +++$+++ 40458 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Court should find that that's not applicable and it's not appropriate under title VII and -- and that would be necessary for us to prevail, even though the defendant did not argue ultimate employment action standard at the trial level, didn't ask for such an instruction, didn't raise that issue until subsequent to the -- this. But you're correct. We would need the Court to say that that does not apply. And then one other issue about -- about bright line rules. I advise and many lawyers advise women every day that complain about sexual harassment. And Mr. Phillips is absolutely correct. There has been a rise in retaliation claims. And, of course, it's complex what the reasons are, but anecdotally I can tell you a lot of it sits at the foot of Ellerth because employers establish policies, they publish the policies, they educated women and men about those policies. People use those policies, and women who complain about sexual harassment, such as Ms. White, internally and then are retaliated against, when they go to the EEOC, they file a retaliation claim. And there's been an increase of those claims. But if this Court applies a black line rule, a per se rule, where you say something is legal, that you can do what you did to Ms. White, then I'll have to advise individuals to go to the EEOC. There might be some retaliation and it's legal. And a woman placed in a situation like that will not complain about sexual harassment. And the protection, the guardian that rule -- that 704(a) has around the primary right will be eliminated, and the primary right will be adversely affected because women will no longer complain. So whatever rule you apply, don't apply a black letter, per se rule because you're going to cause serious harm to the underlying primary rights. If there are no more questions.
05-259 +++$+++ 40459 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, counsel.
05-259 +++$+++ 40460 +++$+++ TRUE +++$+++ MR. DONATI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
05-259 +++$+++ 40461 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Phillips, you have 2 minutes remaining.
05-259 +++$+++ 40463 +++$+++ FALSE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. Let me begin by focusing on the jury instruction in this case. The jury was not instructed with the Ellerth standard. There's a variant of the Ellerth standard, and it was not upheld by the court of appeals on the Ellerth standard. What the court of appeals said was in the Sixth Circuit there is a unique circumstances standard that arises out of its particular way of analyzing these issues, and under that standard, it could be upheld. And that was the same basis on which the district court at Pet. App. 118a upheld this particular verdict. So the question of the right standard to be applied and whether a reasonable jury could find it under these circumstances, Justice Scalia, is clearly presented in this case, and it's an issue that this Court still has to decide. Second, with respect to the suspension, the -- the collective bargaining agreement specifically provides for discipline and then 15 days. It's not a final decision. There's nothing in that collective bargaining agreement that says it's a decision of the employer. To the contrary, the decision at the end of the -- of the investigation is the decision of the carrier. And we don't need a final employer action standard in order to prevail on this. What we need is the opportunity to cure and a reasonable way under -- under section 704, as the D.C. Circuit held specifically in Taylor. And then finally, with respect to the observation about, you know, don't make any per se rules, well, the truth is there aren't going to be any per se rules. There will be a lot of cases that get dismissed out under a tangible employment action theory because there aren't tangible employment actions. But there will always be available the severe and -- and pervasive standard, which is always going to constrain any employer from -- from adopting those kinds of policies. And the point that counsel made is that he recommends to every one of his employees -- he probably should recommend two things. One, you show up. You ought to file a complaint about discrimination in the work place because under his approach, you will, therefore, be super-protected under section 704 in a way you wouldn't have been by merely being protected under 703. That cannot possibly be what Congress intended or what is helpful for the work place. The Court should reject that approach, should reject the Sixth Circuit's view, and remand. Thank you, Your Honors.
05-259 +++$+++ 40464 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Phillips. The case is submitted.
05-260 +++$+++ 40468 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument first this morning in Sereboff v. Mid Atlantic Medical Services. Mr. Stris.
05-260 +++$+++ 40470 +++$+++ FALSE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The question presented today is whether a claim for contractual reimbursement is cognizable under section 502(a)(3) of ERISA. In this case, MAMSI, the fiduciary of an ERISA plan, seeks monetary reimbursement from the Sereboffs, two beneficiaries of the plan. MAMSI has consistently taken the position that its money claim is governed exclusively by the terms of its contract with the Sereboffs. This contract expressly disclaims and replaces most equitable principles. At its core, MAMSI's claim is nothing more than a request for money damages. This claim is not cognizable under ERISA because MAMSI is not entitled to any relief that was typically available at equity.
05-260 +++$+++ 40471 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask you this? If the -- if the day before the settlement was consummated, the plan had gone into court and had said the -- the beneficiaries plan to settle the case and they've indicated that they're not going to give us any of the settlement in accordance with the terms of the contract and we want an injunction preventing their distribution to anyone but -- but us, if the -- if the judge believed that and believed that under the contract, the plan was entitled to reimbursement, could the judge have enjoined the -- the distribution of the funds to the -- you know, to the extent of the plan's claim?
05-260 +++$+++ 40472 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what I would say, Justice Souter, is that an injunction to -- merely to prohibit distribution would be equitable relief.
05-260 +++$+++ 40473 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
05-260 +++$+++ 40474 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That doesn't necessarily mean, however, that once that injunction issued, the plan could enforce the terms of the contract under ERISA.
05-260 +++$+++ 40475 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it could enforce the injunction.
05-260 +++$+++ 40476 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It could enforce the injunction provided that -- that the injunction was not a mandatory injunction. This Court in Great-West clearly held that a mandatory injunction under 502(a)(3), saying pay us this money that's due under the contract, is not --
05-260 +++$+++ 40477 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but that -- that was -- that was an ex post remedy and there were no identifiable funds. What we're talking about here is an ex ante injunction and the funds are identifiable. And you are telling me that, in fact, all the -- all the equity court could have said was, don't pay yourself?
05-260 +++$+++ 40478 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-260 +++$+++ 40479 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It could not have said, give the $75,000, or whatever it is, to the plan?
05-260 +++$+++ 40480 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I would say two things, Justice Souter. The first is that, respectfully, I don't think Great-West made the distinction that a mandatory injunction was impermissible because it was ex post. I think Great-West squarely held that a mandatory injunction is just a clever attempt by lawyers to enforce a contract for legal damages.
05-260 +++$+++ 40481 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, when we get down to clever attempts, aren't we at the clever attempt point when -- when you say that they can enjoin the distribution to anybody else, including themselves, but they can't tell them to pay the money to -- to Great-West? I mean, isn't that the point at which we get to silliness?
05-260 +++$+++ 40482 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't -- I don't think that's true, Your Honor, because we do not take the position that MAMSI or an ERISA plan doesn't have alternative remedies. Of course, there -- that -- that should -- that consideration should be irrelevant because either the claim is legal or equitable, and there are many claims that beneficiaries have for the violation of a plan term that --
05-260 +++$+++ 40483 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you -- in any case, I don't want to prolong this unduly. You're saying that there would have been some equitable claim and some equitable remedy with respect to the $75,000 that -- that a -- a court could have taken cognizance of the day before the settlement.
05-260 +++$+++ 40484 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, to be clear, Your Honor, I will suggest a few remedies that I think might be available here.
05-260 +++$+++ 40485 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. I'm -- I'm just trying to characterize your answer to me. You said, yes, that would be an injunction and it would be an injunction typical of what courts of equity issue.
05-260 +++$+++ 40486 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-260 +++$+++ 40487 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I don't understand.
05-260 +++$+++ 40488 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- an injunction pending litigation? Is that the idea just until you resolve whatever claim it is they have to -- to the money, determine it. It may be a legal claim, an equitable claim, but until you sort it out, you can get an injunction to prevent them from dissipating the -- the claimed funds.
05-260 +++$+++ 40489 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Mr. Chief Justice, and that's extremely important because we would suggest --
05-260 +++$+++ 40490 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I -- I still don't understand. If I'm the -- the trial judge and you ask -- and I'm asked to enter an injunction, I enter an injunction knowing that in the end it's going to be to no purpose? I have to -- I have to be enforcing some ultimate injury of -- of which the plaintiff has standing to assert.
05-260 +++$+++ 40491 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's a fair point, Justice Kennedy, but that doesn't --
05-260 +++$+++ 40492 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So that's why I don't understand your questions. I would think you'd say no injunction because, at the end of the day, it amounts to nothing.
05-260 +++$+++ 40493 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ See, I don't think that's true, though, because there's a distinction I'd like to draw between having a remedy under 502(a)(3) of ERISA and having a remedy at all. We would suggest that the plan can intervene in the State court suit. We would suggest that the plan could write a letter to the tortfeasor notifying the tortfeasor that it has a subrogation right, and if the tortfeasor entered into a release, it wouldn't be viable. So there may be good reason for the Federal court to enter the injunction that you suggested, Mr. Chief Justice, merely to prevent the dissipation of the funds because the funds might need to be preserved for a separate purpose.
05-260 +++$+++ 40494 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Stris, I'd -- I'd like to know what -- what you make of our opinion in Barnes v. Alexander. It's an old case but it involved a situation similar to this, namely, a contingent fee arrangement with a lawyer, and the client received all the money, without giving the lawyer his contingent fee. We reasoned in our opinion that, quote, the contract for a contingent fee out of a fund awarded constituted a lien upon the fund and that, quote, it is one of the familiar rules in equity that a contract to convey a specific object, even before it is acquired, will make the contractor a trustee as soon as he gets title to the thing. Why doesn't that absolutely resolve the present case?
05-260 +++$+++ 40495 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That does not resolve the present case, Justice Scalia, because the -- MAMSI's interpretation of the Barnes line of cases, the equitable lien by assignment cases, would entirely negate the limitation that Congress put into 502(a)(3). And -- and if you'd permit me to explain why. A remedy of an equitable lien by assignment, as we explained in our opening brief, is not a restitutionary remedy. No unjust enrichment need be proved. No tracing need be proved. It's purely a contractual remedy. Now, as a result, courts of equity historically developed this remedy to give priority to one creditor over another if there was a present intent on the part of the promisor to pledge that specific property as security.
05-260 +++$+++ 40496 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But we -- but, you know, our opinions haven't said only certain kinds of equitable relief, only restitutionary equitable relief. We've simply said whether equitable relief would normally be available. And now you're -- you're trying to rewrite our cases to say that only certain types of equitable relief are -- are available.
05-260 +++$+++ 40497 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't --
05-260 +++$+++ 40498 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And -- and if, indeed, it does -- it does occupy a lot of the field, so be it. That's the way Congress wrote the statute.
05-260 +++$+++ 40499 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that's fair, Your Honor, but that's not what I'm saying. I would -- I would direct the Court's attention to -- to page 211 of the Great-West opinion, note 1, where the Court wrote that any equitable remedy under 502(a)(3) must -- and I quote -- be deemed to contain the limitations upon its availability that equity typically imposes. And my only point --
05-260 +++$+++ 40500 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, what about --
05-260 +++$+++ 40501 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- my only --
05-260 +++$+++ 40502 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- what about if you're -- if you're using Great-West, it seemed to me the most relevant point made in Great-West was that the plan could seek restitution in equity where money identified as belonging in good conscience to the plan could clearly be traced to particular funds in -- in the defendant's possession. The problem in Great-West was the money had already been dissipated. It had been set aside.
05-260 +++$+++ 40503 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that's true, Justice Ginsburg, and -- and it -- it proves my point more than refutes it, and here's why. Great-West had no -- this Court in Great-West had no occasion to explain when something was traceable or when it belonged in good conscience to the plan. It merely said that you look to history for those requirements. And this is why, Justice Scalia, I distinguish between equitable restitution and an equitable lien by assignment. They were both typically available in equity as narrow exceptions to getting money for breach of contract. I concede that. But they had very different requirements, neither of which can be met in this case.
05-260 +++$+++ 40504 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose in the 18th century -- I'm not an expert in this. You're more of one. But suppose you had an absolute classical trust. It's the -- it's a trust for the benefit of the fifth grandchild of the Duke of Hamilton. All right?
05-260 +++$+++ 40505 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
05-260 +++$+++ 40506 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The trustee. And this trustee, going to the fifth grandchild one day, lends him 1,000 pounds, and he takes his security. The grandchild says, 4 years from now my great, great Aunt Margaret is likely to die and she's going to leave me my ring -- her ring. And the -- the trustee says, fine. When you get the ring, give it to me and that's repayment. Yes, okay, done. Now, the great, great grandchild being a bit of a --
05-260 +++$+++ 40507 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You don't need to say it. I understand.
05-260 +++$+++ 40508 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. He keeps the ring. (Laughter.)
05-260 +++$+++ 40509 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. My question is could the trustee go to the equity court and say, there it is. It's in his pocket. Equity court, I'd like you to order that ring to be given to the trust. Can that happen?
05-260 +++$+++ 40510 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The answer is it depends and --
05-260 +++$+++ 40511 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It depends. They couldn't get that?
05-260 +++$+++ 40512 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It depends, and that -- and that --
05-260 +++$+++ 40513 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What does it depend on?
05-260 +++$+++ 40514 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and that is my answer to Justice Scalia's question. It -- it depends on whether the -- what the court believed the intent of the great grandson was at the time the promise was made.
05-260 +++$+++ 40515 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The great grandson's intent was to get the money as fast as he could, and, in fact, he thinks -- when he'll get the ring, he thinks he'll give it back to the trust but -- at least -- yes. That's what he thinks.
05-260 +++$+++ 40516 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Then to be clear, Your Honor, that would not be enforceable as an equitable lien by assignment, and it's important --
05-260 +++$+++ 40517 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In other words, a court of equity could not have taken the ring?
05-260 +++$+++ 40518 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-260 +++$+++ 40519 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Like -- what it is it? You have to go back to the 15th century or the 16th? Is there -- is there a case? There must have been cases like that.
05-260 +++$+++ 40520 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we -- we cite a -- we cite a series of cases in our reply brief, pages 12 and 13, that all stand for this principle. And it's important to understand why. The reason why is equitable lien by assignment historically only occurred in cases where there was -- for the most part, 99 percent of the times, occurred in cases where there was insolvency. So the fight was between different creditors. And the question was, was there an intent to merely just pay this debt as a promise, in which case we don't give priority of -- of the ring to this one creditor, or was there the intent to pledge this particular piece of property as security, in which case we will give it as priority? And I'd like to take a step back because I'm concerned that this comes across as a hyper-technical argument, but it's really not because if we start with the background principle that --
05-260 +++$+++ 40521 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, then suppose there are no other creditors.
05-260 +++$+++ 40522 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If there were no --
05-260 +++$+++ 40523 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There's no other creditor.
05-260 +++$+++ 40524 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If --
05-260 +++$+++ 40525 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ See, he goes -- there's nobody. All there is is the ring. Nobody else makes any claim to it whatsoever. Now can the -- can the trustee get it?
05-260 +++$+++ 40526 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The answer is still no.
05-260 +++$+++ 40527 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No.
05-260 +++$+++ 40528 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But -- but I would add to that there -- there are very few cases in that area because in that area the person would usually sue at law for money damages. If they --
05-260 +++$+++ 40529 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. He has no money. All he has is the ring in his pocket.
05-260 +++$+++ 40530 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. That's fair. And the cases that do arise, arise because the person wants that specific piece of property. And at equity, it would not be recoverable. It would only be a claim for money damages at law. Now, to take this --
05-260 +++$+++ 40531 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can I get back to the -- the Barnes case that Justice Scalia asked you about? Is it a possible distinction of that case that that involved a contingent fee arrangement, and in other words, the lawyer's labors generated the -- the asset, while in this case, the claim depends upon the -- the contractual provision?
05-260 +++$+++ 40532 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly, Your Honor, and -- and as we note in our -- in our reply brief, many courts over the years have described Barnes, Wylie, and the other attorney's fees cases cited by MAMSI in this case as -- as very narrow exceptions to the strict rule at equity because in attorney's fees cases, it was the attorney's efforts that created the fund. I don't think we need to rely on that exception.
05-260 +++$+++ 40533 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What -- I don't understand what difference that makes. I mean, in both cases there was a commitment to pay the contingent fee. It was a promise. And when the money was collected, the court said, we're going to enforce an equitable lien upon your recovery in order to comply with the promise.
05-260 +++$+++ 40534 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, to be clear, Your Honor, we don't rely on the distinction, but we do think the distinction adds some persuasive force, and here's why. My understanding is that these courts viewed the Barnes line of cases as a hybrid line of cases. They're willing to relax slightly the very strict rules at equity because they think there's an element of unjust enrichment.
05-260 +++$+++ 40535 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you may not -- you may not rely on the distinction, but I would have thought your answer might have been that the lawyer had an equitable claim apart from the contractual provisions so that when you enforce the contractual provisions, Justice Holmes would have thought of it in equitable terms, while here, there's no equitable claim apart from the particular provisions of the contract.
05-260 +++$+++ 40536 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in candor, Your Honor, I was attempting to suggest that and clearly I didn't say it as artfully. But that -- that is -- that is what I meant --
05-260 +++$+++ 40537 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Take it. Take it. It's a good one. Right.
05-260 +++$+++ 40538 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- about the -- the distinction (Laughter.)
05-260 +++$+++ 40539 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I will take it. And it bleeds very nicely into what I was about to say, which is to take a step back as to why this isn't a hyper-technical argument. It's important to start with the background principle that 502(a)(3) doesn't include legal relief, and this is -- this is significant. If we look at 502(g), there's a very narrow provision for plans to enforce terms that require certain employers to make contributions to plans, and in 502(g) Congress said, well, in this case you can seek liquidated damages to enforce the terms of the plan. You can seek legal relief. In fact, it uses the phrase, legal and equitable relief. So when we sit here today and look at 502(a)(3), it's very easy, particularly on the facts of an individual case, to say, hey, you know, legal relief should be available here. But Congress made the decision only to allow equitable relief.
05-260 +++$+++ 40540 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But why is that? I mean, we spend a lot of time with these old English cases. Why -- why did Congress -- it seems an arbitrary line.
05-260 +++$+++ 40541 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't -- I don't think it is arbitrary, Your Honor, and I would suggest that there's two reasons why did that. The first is that as a backdrop rule they believed that it's not a good policy to have fiduciaries suing participants and beneficiaries for money, and when they thought that there was a good reason like 502(g), they expressly enumerated it. The second reason I think that they -- they did this is because the only times when it might make sense to recover money for the violation of a plan term, for the most part, fall within -- under the rubric of unjust enrichment. And I believe that Congress, rightfully so, thought that there were non -- sufficient non-ERISA remedies whereby a plan could assert truly equitable unjust enrichment claims. So there was no need to provide that remedy in the civil enforcement provisions of ERISA. So if we look at that as the backdrop rule and apply it to Barnes and that line of cases, I would suggest that MAMSI's reading of the Barnes line of cases is very dangerous.
05-260 +++$+++ 40542 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you -- do you not think that Congress had in mind no compensatory damages, no punitive damages? Do you really think that Congress had in mind the distinction that you are now drawing in the ring case based on 15th and 16th century English precedent?
05-260 +++$+++ 40543 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I wasn't suggesting that they had 15th and 16th century cases in mind. Certainly not. I was relying on those cases because Great-West mandates that that's what we do. But I do believe that --
05-260 +++$+++ 40544 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but Great-West also said money. It said money, identified as belonging in good conscience to the plan. And why doesn't it belong in good conscience to the plan when the beneficiary has promised that, if it gets a tort recovery, it will reimburse the plan?
05-260 +++$+++ 40545 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay. Well, that goes to the very heart of why we believe this is a -- a legal claim and not an equitable claim. If we look at the particular plan provision here, it allows MAMSI to totally avoid proving any double recovery. And let me -- let me give an example, Your Honor. There are 36 States that have limited the collateral source rule. Under the MAMSI plan here, if a particular plaintiff recovered money in a personal injury suit, it clearly could not recover all, in some of the States, part in other States, of its advanced medical expenses because they came from a collateral source. Nonetheless, under the plan, as MAMSI has written it, they can recover their full amount, and there's nothing equitable in allowing a boiler plate provision to authorize the plan to get contract damages.
05-260 +++$+++ 40546 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, isn't -- isn't the simple answer to that is that the equity court would not enforce any injunction or any mandatory order, or whatever the relief was, if it involved double recovery?
05-260 +++$+++ 40547 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I don't know how simple that answer is, Your Honor, but I would -- I would take it, as Justice Scalia said a moment ago. And if this Court believes that MAMSI could state that sort of equitable claim, we would be very comfortable with a remand in this case to weigh the equitable factors at issue. That didn't occur here, though, because MAMSI argued that the contractual terms govern. The court agreed. And so as a result, the disclaimer of the made-whole doctrine, the requirement that MAMSI established double recovery --
05-260 +++$+++ 40548 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What -- what is the double recovery that you're talking about? The plan has paid out to the care providers the benefits in full.
05-260 +++$+++ 40549 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-260 +++$+++ 40550 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And now it wants to get back its benefits in full.
05-260 +++$+++ 40551 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. And -- and I would suggest that at equity, whether we look at it historically or even in a modern sense, a subrogation-based claim or an equitable claim would require MAMSI demonstrating that some of the settlement it received constituted a payment for medical expenses. And that --
05-260 +++$+++ 40552 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the plaintiff could so -- in the tort litigation, if that's what it is, the plaintiff could say, I don't want any medical damages. Give me everything for pain and suffering.
05-260 +++$+++ 40553 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, and -- and I would suggest that if that occurred and you applied equitable principles, the insurer could argue, I think rightfully so, that the insurer impaired its subrogation rights. That would be an equitable claim. The point I'm making, Your Honor, is that none of this occurred here because the procedural posture of this case was a motion for summary judgment at the district court level where MAMSI went in and said all that matters are the contract terms. We don't have to look at whether the Sereboffs were made whole. We don't have to look at whether there was double recovery. We can't consider our diligence in refusing --
05-260 +++$+++ 40554 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but they look at the medical expenses were something like $75,000 and the settlement was -- what was it? $750,000.
05-260 +++$+++ 40555 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ $750,000, Your Honor. And -- and I would suggest that we never had an opportunity to introduce any facts. It --
05-260 +++$+++ 40556 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, did you attempt to?
05-260 +++$+++ 40557 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We did not, but --
05-260 +++$+++ 40558 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, did -- did you respond to the summary judgment by saying, you know, there are reasons why they should -- specific reasons why they shouldn't get the full 75?
05-260 +++$+++ 40559 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-260 +++$+++ 40560 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you were denied a hearing on that?
05-260 +++$+++ 40561 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We -- yes. I mean --
05-260 +++$+++ 40562 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That -- that may be a -- a reason for you to appeal on the merits, but I don't see what it has to do with the -- with the jurisdiction of the court as -- as awarding equitable relief. Maybe it did a poor job in deciding what was equitable.
05-260 +++$+++ 40563 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I don't --
05-260 +++$+++ 40564 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it -- it has nothing to do with its power to award an equitable remedy.
05-260 +++$+++ 40565 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that's true, Your Honor, because MAMSI didn't move for summary judgment on an equitable theory. They moved for summary judgment on a contractual theory. And page 8 of their summary judgment motion is -- is particularly clear on this. It makes clear that the contract creates, governs, and is the end all and be all of their rights.
05-260 +++$+++ 40566 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, they would have nothing to say if they hadn't invoked the contract. They've got to invoke the contract. The question is, are they asking for equitable relief?
05-260 +++$+++ 40567 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think they have to invoke the contract, Your Honor, in the sense that --
05-260 +++$+++ 40568 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You mean without a contract, they could have gone in and said, we'd like $75,000?
05-260 +++$+++ 40569 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not under 502(a)(3), but certainly under other principles. Equitable principles of subrogation, as MAMSI repeatedly describes in their brief, is a doctrine that is governed by equity. It's created wholly apart of a contract. And we cite numerous cases for the proposition that you can limit by contract --
05-260 +++$+++ 40570 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And are you suggesting that the jurisdiction of the court would have been different if they had gone -- if the -- if the plan had gone in and said, we don't care anything about our contract, we're just relying on equitable principles of subrogation? In that case, are you suggesting the court would have had equitable jurisdiction, whereas when they went in and said, we happen to have a contractual right to this, the court doesn't have equitable jurisdiction?
05-260 +++$+++ 40571 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is a very difficult question, Your Honor, and I would --
05-260 +++$+++ 40572 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I think that's implicit in your argument.
05-260 +++$+++ 40573 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is an important question, and I would answer it this way. I would say that that hypothetical presents a much closer question. If the contract merely had a subrogation provision that said we are subrogated and the plan went in and tried to enforce that provision by employing equitable principles, seeking equitable remedies, that would be a closer question. That might be permissible under 502(a)(3). That's not what occurred here. I think it probably wouldn't be permissible because, although it would seek an equitable remedy, it wouldn't be an equitable remedy to --
05-260 +++$+++ 40574 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why -- why isn't that what occurred here? What -- what's the essential difference?
05-260 +++$+++ 40575 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, the essential difference is that there are various equitable principles that were categorically applied to subrogation claims, including reimbursement versions of subrogation claims. And they could not be disclaimed or overridden by contract. The burden of the insurer was to establish that there was a double recovery. That's part of the claim. The burden of the insurer was to show that the defendant, the insured, was made whole.
05-260 +++$+++ 40576 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How does the -- how does the insurer show that if the parties could just say -- the plaintiff can say, I am the master of my complaint. I am not seeking damages for medical expenses. I just want damages for lost earnings, pain and suffering.
05-260 +++$+++ 40577 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, but my answer to that, Your Honor, would be that if it's a lie, meaning if they did get damages for medical expenses, you couldn't overcome it merely by saying you didn't seek them. And if it's true, meaning in the -- in the tort action the plaintiff didn't actually seek those damages, then there would be an equitable theory called impairment of a subrogation right that could be asserted. But this is significant. This isn't -- this isn't historical minutia. This is significant because it goes to the heart of whether the claim is equitable or really just a dressed-up claim to say, hey, you breached this contract provision because when you define in the contract -- and this goes to your jurisdictional question, Justice Souter. When you define in the contract the very contours of reimbursement, all you're doing is mandating contract damages. And here, it's worse than that. MAMSI expressly disclaimed the make-whole doctrine. They did it in the plan. They -- in their motion for preliminary injunction, they cited In re Paris, which is a Fourth Circuit case that governs, and you can do that. And even before this Court, they have -- their footnotes 19 and 20 of their -- of their brief -- they're not -- they're continuing to rely on their ability to do that in their contract.
05-260 +++$+++ 40578 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay, but why -- why isn't the answer to your argument the -- the historical answer that courts of equity frequently provided remedies and supplementary remedies when remedies at law were not fully adequate? And they were still equitable remedies. They were still typically equitable, and that's what is being requested here?
05-260 +++$+++ 40579 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-260 +++$+++ 40580 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why isn't that the answer to your -- your argument?
05-260 +++$+++ 40581 +++$+++ TRUE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would say two things, and then I would -- if -- if I'm permitted, I would like to reserve the rest of my time. First, I would say that that's not what's being requested here, and if MAMSI could state that claim, then a remand is required so they can proceed on that theory. The second thing I would say, though, is that that notion runs square up against Great-West because Great-West said it had to be a claim that was traditionally available in equity, not something that an equity court would have jurisdiction over because of the clean-up doctrine, not something that could come into an equity court for another reason, but a remedy that was traditionally equitable. And when you're looking at something like a constructive trust, MAMSI is correct to point out that it doesn't matter if there's an adequate remedy at law. A constructive trust historically was an equitable remedy that was available in an equity court even if there was an adequate remedy at law. But that doesn't win the day for MAMSI. They still have to prove that they meet the requirements, the tracing requirements, which don't exist here in this breach of contract case, and that's why that remedy is not available. So, if I may, I'd like to reserve my --
05-260 +++$+++ 40582 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Stris. Mr. Coleman, we'll hear from you.
05-260 +++$+++ 40584 +++$+++ FALSE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Good morning, Mr. Chief Justice, and may it please the Court: Subrogation-based claims have always been fundamentally equitable in nature and fit comfortably within the prescriptive limits of section 502(a)(3). The Court should reject Petitioners' attempt to make these kind of subrogation-based reimbursement provisions universally unenforceable in ERISA plans.
05-260 +++$+++ 40585 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, but I mean, once you get out of the contract terms and are trying to make your case on the basis of subrogation, you do have to show that -- that part of the recovery was -- was for the -- for the medical expenses. And has that been shown?
05-260 +++$+++ 40586 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It has been, Your Honor. And -- and let me make clear what the plan says. The plan, I think, does three things. The plan memorializes our right to subrogation, a -- a right that has existed in equity in modern times and ancient times throughout the history of equity. Second --
05-260 +++$+++ 40587 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, if I can just stop you there. Your -- your friend on the other side cites the many common law cases not allowing subrogation in this sort of situation, or if it does allow it, subject to the make-whole doctrine.
05-260 +++$+++ 40588 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe that he does cite cases disallowing it under circumstances anywhere close to this. He did cite in his brief Trist and other cases from his reply brief that this Court in Barnes expressly disapproved. And so in suggesting that -- that there is not somehow an equitable right that attaches to this type of a plan language, we think that on that additional ground that fails. This type of a claim is a fundamentally equitable claim. When we pay over the medical expenses, we obtain a right in equity to receive an amount up to that which we have provided to the Petitioner. Our plan reflects that language. Our plan also goes on to say that it contains a commitment that we will look only to the recovery, to the fund that is received from a third party by settlement or judgment. We think that that fits clearly within the language of Barnes, that we are committing ourselves to a recovery that will look only to the fund that is recovered.
05-260 +++$+++ 40589 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ He just said -- your brother said, well -- because I simplified that to the ring, and he says, well, if in fact you had a subrogation right or some other absolutely clear contractual right to get repaid from the ring, you know, which is a physical thing, you couldn't -- stronger than your case -- you couldn't get it in equity. If I really knew about the 18th century cases, I would realize that, and it's only my ignorance that and my dissent that prevents me from understanding this.
05-260 +++$+++ 40590 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I disagree with his response. I think the ring clearly would have been recoverable in equity and I -- I don't think there can be any reasonable question about that.
05-260 +++$+++ 40591 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right, fine. Then where do I look?
05-260 +++$+++ 40592 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can you cite us to something for the -- can you cite something to that effect?
05-260 +++$+++ 40593 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For the -- for the ring proposition?
05-260 +++$+++ 40594 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ For your answer.
05-260 +++$+++ 40595 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do think the Barnes line of cases that include with it Walker v. Brown and -- and other cases fully stand for that type of a proposition, that -- that if you have committed to something that -- that requires the return and recovery of a specific item or fund, that is it. I think that type of thing would also fall clearly within the realm of specific performance, which is a known exception to contract-based claims that falls clearly within -- within the realm of equity.
05-260 +++$+++ 40596 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, instead of looking for an equitable counterpart, this is an action for money you think is owing to you under a contract. Why isn't that a classic form of legal relief?
05-260 +++$+++ 40597 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the right to subrogation exists independent of the contract. This Court has said that numerous times. We've cited cases in our brief going back into the 1800's.
05-260 +++$+++ 40598 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So why did you cite the contract in your complaint?
05-260 +++$+++ 40599 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because of the specific requirements of ERISA litigation. 502(a)(3) doesn't say that you can bring any claim in equity. It says that we can bring a claim seeking appropriate equitable relief to remedy a violation of the plan or to enforce the terms of the plan. So there is a necessary joining of equity and the terms of the plan when you bring --
05-260 +++$+++ 40600 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If equity -- if the equitable subrogation claim were subject to the make-whole doctrine or -- or these other equitable doctrines, and your contractual claim is not, which relief are you entitled to? The -- the one subject to the equitable doctrines or the relief that's specified in your contract?
05-260 +++$+++ 40601 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We believe that the courts of appeals have already resolved that question, and that is that -- first of all, there are -- there are variations on make-whole. Theirs is only one. Their view of it is only one, which is the -- the most --
05-260 +++$+++ 40602 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is your claim subject to the equitable doctrines or subject to the legal contractual claim?
05-260 +++$+++ 40603 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't distinguish between the two, Your Honor. And ultimately the reason for it is, is that a third part of the plan language is that it contains essentially a pre-agreed allocation. That's all that it does. It says because of the risk of manipulation in these settlements where the insured will settle a third party claim and say, okay, it's a million dollars, but let's write $10,000 in for medicals and the rest will be pain and suffering because we don't want to have to pay back on subrogation. So it is well established, both within and outside the ERISA context, in these types of situations, that the subrogation language will contain an allocation so that when you get the money coming back, it is applied first to the medical damages. That is -- that is all that it is. It is -- it is not something that exists outside.
05-260 +++$+++ 40604 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, are you -- do you contend it's always applied first to the medical damages? In other words, supposing there was -- instead of the $750,000 settlement, it had been $100,000 here. $75,000 was medical, and they had a lot of substantial other claims, pain, suffering, loss of earnings, and so forth. Would you always get your full amount if -- if the amount of the settlement is over the amount of the medical expense?
05-260 +++$+++ 40605 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think we would be entitled to it under the -- the terms of the plan.
05-260 +++$+++ 40606 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You think that's the equitable rule.
05-260 +++$+++ 40607 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Obviously, in -- in doing these things, there's a practical side on -- on the business side when they work these things out. But the reason that claim would settled for $100,000 again speaks to the strength of their claim for other kinds of damages.
05-260 +++$+++ 40608 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it might be because -- it might be because there's contributory negligence, all sorts of things. They might have compromised at 20 cents on the dollar across the board. Why should you get 100 cents when the -- when the rest of the recovery only gets 20 -- 20 cents?
05-260 +++$+++ 40609 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, it's -- it's because of the nature of the allocation.
05-260 +++$+++ 40610 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's equitable in your view? What?
05-260 +++$+++ 40611 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is because --
05-260 +++$+++ 40612 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You think that's the equitable rule.
05-260 +++$+++ 40613 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Courts in equity in -- in -- modern courts in equity in -- in analyzing these types of -- of claims have permitted these types of allocation --
05-260 +++$+++ 40614 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And some do, but some do not I think.
05-260 +++$+++ 40615 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's an accurate statement outside of the ERISA context, Justice Stevens, that there are courts that enforce one form of make-whole that might not. But there are many States that do enforce a --
05-260 +++$+++ 40616 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You -- you have piqued my curiosity and -- and didn't satisfy it. You say there are variations on make-whole. What -- you were about to describe the variations. What are the variations?
05-260 +++$+++ 40617 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are variations that -- the -- the most stringent is Petitioners' rule, which is we have to be made whole for everything that we wanted to claim, pain and suffering. We thought our claim was $1 million and we didn't settle for $1 million, and therefore, we're not made whole. There is -- there is another version that is less restrictive than that, but as long as there is a showing that medical expenses have been paid, you get a return of medical expenses. There are another version -- there's another version that is enforced in many States, including Virginia and California and I -- some others I believe, in which essentially the make-whole runs the other way towards the insurer, that -- that you have basically a first dollar type to ensure that the medical expenses are paid first. There are -- there are a variety of things, but within the ERISA context, every court of appeals that has addressed this has said that when you put these kinds of terms into the plan -- and they are very common -- we're not going to adopt from various States equitable rules that will contradict the terms of the plan and that will --
05-260 +++$+++ 40618 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Counsel, it seems to me you -- you must be biting your -- your tongue here. There's an easy answer to Justice Stevens and to Justice Scalia, and it's that we get all the money first because that's what the contract says. But you can't give that answer because then it starts to look like a legal claim. Instead, you get mired in all these obscure equitable doctrines because you're -- when there's a simple answer there in black and white, but it's in the contract. And as soon as you say that, it starts to sound legal rather than equitable.
05-260 +++$+++ 40619 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- the plan contains an allocation agreement that is part of -- the allocation agreement is enforceable. Every court of appeals that has -- has ruled on this issue has said that they are -- that they are not going to adopt State court rules that contradict plan terms because that would be contrary to the intent of Congress in enacting ERISA and in making plan sponsors the -- the governors of plan design. So we didn't want that type of thing to happen. Every court of appeals has ruled that. But that -- that --
05-260 +++$+++ 40620 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What do you think --
05-260 +++$+++ 40621 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The fact that your equitable claim, you know, traces itself to a contract certainly doesn't -- doesn't cause it to cease to be an equitable claim. I mean, the classic equitable claim is somebody declaring a trust in exchange for some money, and he declares a trust. Equity will enforce that trust, but the trust is based on a contractual commitment. Right?
05-260 +++$+++ 40622 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe -- I believe that is correct. We believe that it runs the other way, that our plan language simply reflects an age-old, historical subrogation right that has existed in equity and that has been slightly modified.
05-260 +++$+++ 40623 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If -- if you understand as I -- that four people on the Court took a broader view that Congress didn't want to get into this matter, and restitution is restitution, whatever it means now; but five took the historical view. Now, if we're in the historical view, which we are, that was the majority. At that point, I want to know how you think this case should come out. What words should be written there if I'm thinking of the next case? And after you win this case, if you do, the next case will simply be precisely the same as yours, but the lawyers, having acted 5 minutes quickly -- more quickly, will mix up all the funds. Now it's commingled and all we have is exactly the same with every future case that you have, and now the pension fund can't get a penny back of the money that it loaned that it should get back in good conscience. No doubt about it. A promise, good conscience, and they can't get a penny. Now, you have the interest in telling me what words this Court should write, other than overrule Great-Western, that will prevent that result from coming about. I would like to know your --
05-260 +++$+++ 40624 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'll try to get most of that in order. First of all, the Court did -- has ruled. It's an issue of statutory interpretation, and the Court has not usually gone back on it. We're very comfortable with Mertens. We're comfortable with Great-West. We think --
05-260 +++$+++ 40625 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I should think your response is that Congress provided for only equitable relief.
05-260 +++$+++ 40626 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-260 +++$+++ 40627 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And -- and that that's the -- that's the answer.
05-260 +++$+++ 40628 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In other words, you don't care about these other --
05-260 +++$+++ 40629 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Congress said that.
05-260 +++$+++ 40630 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I was actually interested in what your response was because I thought you have an interest in not losing your recovery in all those other cases.
05-260 +++$+++ 40631 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we are very comfortable within the law that this Court has set out. We believe that the Court has gotten it right.
05-260 +++$+++ 40632 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well -- well, why should you be if -- if an -- if this -- if you prevail in this case and then every other personal injury lawyer will make sure that that recovery goes into a trust for the care of the accident victims, never goes into their own investment account.
05-260 +++$+++ 40633 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that presumes that -- that we don't have things that we can do along the way before it comes into the attorney's hands. This is a very interactive process.
05-260 +++$+++ 40634 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but Justice Breyer's question is the eggs have gotten scrambled. That's the -- that's the hypothesis. Are you saying or are you going to say you can't unscramble the eggs consistently with -- with the limitation to equitable remedies, or are you going to say you can unscramble the eggs?
05-260 +++$+++ 40635 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer's example is one specifically related to commingling. Commingling itself does not, in fact, bar --
05-260 +++$+++ 40636 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, that's what I meant by scrambled eggs.
05-260 +++$+++ 40637 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But if -- if you go out and, you know, give out dollar bills on the street till it's all gone -- we accept that there are limits to our recovery.
05-260 +++$+++ 40638 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, how about Justice Breyer's hypothetical? Is the -- is the court under ERISA incapable of dealing with that situation, or is isn't it?
05-260 +++$+++ 40639 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the commingling situation is one in which the courts would look to see if the person is still essentially in possession of the funds as the Court stated in Great-West. We think under that circumstance it would be. I can envision circumstances --
05-260 +++$+++ 40640 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Under that -- under Justice Breyer's hypothetical, a court, consistently with ERISA, could give an equitable remedy?
05-260 +++$+++ 40641 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, absolutely.
05-260 +++$+++ 40642 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
05-260 +++$+++ 40643 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But -- but if the recovery is set up in such a way that it never goes into the personal account of the accident victims and, instead, just what happened in Great-West, isn't that what every personal injury lawyer will do if you prevail in this case?
05-260 +++$+++ 40644 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Then, Justice Ginsburg, we would test the language at the end of Great-West and we would have to go after a different defendant. And we would -- we would have to test our luck under that type of situation, go after the person in possession or control of the funds, and we would be able to do that. And we believe that courts would -- would allow that and would enforce our equitable rights in that type of a situation. I don't mean --
05-260 +++$+++ 40645 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would California allow you to intervene when it has a no-subrogation rule?
05-260 +++$+++ 40646 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There, I believe there's a strong argument that California might not have permitted us to intervene at all.
05-260 +++$+++ 40647 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, then how are you going to prevent the funds from being commingled or being assigned immediately to a trust?
05-260 +++$+++ 40648 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that our --
05-260 +++$+++ 40649 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm not sure how you can avoid also the trustee being one of the named plaintiffs.
05-260 +++$+++ 40650 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think that our remedy is under (a)(3), Your Honor, and that we would -- we would try to act under (a)(3) in terms of enforcing our equitable rights that exist.
05-260 +++$+++ 40651 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Or you might try to get ERISA amended. (Laughter.)
05-260 +++$+++ 40652 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sure you'll wish us luck with that, Justice Scalia. But I think that our rights are sufficiently secure under ERISA as it is now written and under the jurisprudence that this Court has set forward. We believe that our plan sufficiently captures the essence of the age-old equitable subrogation right, that in seeking to enforce that plan, we both capture those subrogation-based rights, but our plan also commits to seek funds solely from a fund, a res, that will come into existence as a result of the third party litigation --
05-260 +++$+++ 40653 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Your theory is that your argument would be exactly the same if you did not have this provision in your contract. It's an equitable claim. It's an age-old subrogation right. You just sue in equity saying, look, I paid the medical expenses, I'm entitled to it. You don't need the contractual provision at all.
05-260 +++$+++ 40654 +++$+++ TRUE +++$+++ MR. COLEMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We have a right that exists in equity independent of the plan, but (a)(3) does have that language that you seek appropriate equitable relief to enforce the terms of the plan. That part of it might be missing if we were just out relying solely on what exists in equity, separate from the plan. That is why the plan memorializes these rights. It was Congress' intent that we write the terms into the plan so that people can be given notice of what is there and they can accept it. They can understand what is in the plan. And as long as our plan is consistent with -- and we believe it is -- in seeking what is appropriate equitable relief, then we think that the courts have authority to hear these claims. And really, there's a lot that's been discussed here, but the question that has been presented to the Court is really only does (a)(3) authorize these types of claim. The answer to that is clearly yes, and in asserting that a court should have enforced or should have looked at various equitable defenses, we think that's merely a concession that our claim is equitable in nature and that in asserting these various defenses, that -- that the courts of appeals have unanimously thus far rejected, the Court does not need to look at it. Those courts have correctly decided all of those issues in -- in evaluating the -- the balancing of Congress' intent in enacting ERISA and putting these kinds of terms into play, allowing plan sponsors to have a lot of deference and leeway over how plans are designed and then enforcing them under (a)(3) in seeking equitable relief. And we believe that the Fourth Circuit properly evaluated that and that the court's judgment should be affirmed.
05-260 +++$+++ 40655 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Coleman. Mr. Feldman.
05-260 +++$+++ 40657 +++$+++ FALSE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: This -- this case is an action for appropriate equitable relief under this Court's decision in Great-West. First, it seeks a specifically identifiable fund, which is the money that Petitioners got from their tort settlement. Second, that fund can be traced to Petitioners. It's sitting now in an investment account, and they've committed to holding it there. Third, the fund belongs in good conscience to the plan because the plan provided that the fund -- that that fund, quote, must be used to reimburse the plan, quote, for benefits paid.
05-260 +++$+++ 40658 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How is this -- to go to your first point, how is this specifically identifiable? No court has said that there's this -- you only want the medical expenses, and no court has said there's this much for medical expenses. You have to figure out how much of the recovery is allocable to medical expenses. In fact, already did that. They cut out some percentage for attorney's fees. It's far removed from the traditional sort of res that we deal with in equity.
05-260 +++$+++ 40659 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that's correct, with respect. In Barnes against Alexander and in the whole line of cases that we cite, the Court has made quite clear that parties can commit contractually that a particular fund that will come into existence in the future should be used for a certain purpose, and that will be equitably enforced.
05-260 +++$+++ 40660 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So we -- how enforced? I mean, if you're enforcing a contract, you do that legally not equitably.
05-260 +++$+++ 40661 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that's right. And if you're enforcing a contract and you're seeking normal contractual damages of various sorts, you definitely do that legally and not equitably. But equity always enforced contracts. They would enforce its equitable liens that were created by contract. For example, in the case of Walker against Brown, which was not an attorney's fees case -- by the way, on -- in Barnes against Alexander, which was an attorney's fees case, nowhere in the decision does the Court rely at all on the fact that this had anything to do with any special rule that applies to attorney's fees. But that, in turn, relied on the prior case of Walker against Brown in which -- just involved an equitable lien that was created by contract and that a party was trying to enforce. And the Court quoted Pomeroy's Treatise. Now, Walker was decided in 1897. Pomeroy's Treatise on Equity, quote, every express executory agreement in writing, whereby the contracting party sufficiently indicates an intention to make some particular property, real or personal, or fund therein described or identified as a security for a debt, creates an equitable lien upon the property so described.
05-260 +++$+++ 40662 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, what would happen if this case were a weak case on -- on liability and it was settled for $60,000? What would happen to your tracing theory then?
05-260 +++$+++ 40663 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think -- in general, I think that the terms of the plan, both under ERISA law and under these traditional equitable principles that we've talked about or I mentioned just now, that the plan would likely be entitled to get -- get up to the amount of the medical expenses --
05-260 +++$+++ 40664 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Presumably such a weak -- such a weak claim would not be brought because there --
05-260 +++$+++ 40665 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. It is --
05-260 +++$+++ 40666 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- there's nothing at the end of it.
05-260 +++$+++ 40667 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is the case that in extreme cases, for example, the beneficiary has collected the medical benefits, does have some leverage over the plan, and in fact, the plan -- and -- and can say, well, I'm not going to bring the claim, I'm not going to, you know, do what I can to collect the money unless we come to some kind of agreement. And in fact, the plan in this case provides -- that says, the company's share of recovery will not be reduced because your -- you have not received the full damages claimed, unless the company agrees in writing to a reduction. And they leave it open there, in appropriate cases, for the parties to negotiate that. But there was no bar in equity for an equitable court to enforce an equitable lien that arose out of a contract where that satisfied the -- the standards for an equitable lien.
05-260 +++$+++ 40668 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are these claims subject to the qualifications that go along with the equitable lien, the make-whole, whatever the applicable rules are?
05-260 +++$+++ 40669 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, first of all, make-whole I think is best -- there are a variety of make-whole rules in addition to those that Mr. Coleman mentioned. There's rules where you prorate the settlement in certain ways so that you get some proportion. But the basic make-whole rule, as has been described by the courts of appeals, is a default rule and that is where you're just relying on a pure subrogation clause or you don't mention it all in a particular insurance document, then some courts have said you apply some kind of make-whole rule or some other allocation rule to figure out how much of the tort recovery goes to the insurer.
05-260 +++$+++ 40670 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So that wouldn't apply here because you're relying on the contract.
05-260 +++$+++ 40671 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, where you -- where the parties have specified. Even in other -- in insurance law generally, where the parties have specified in the insurance contract how that's supposed to work, then the courts will enforce that. And there's nothing unusual in courts of equity taking a look at the agreement that was reached between a -- the parties, presumably supported by consideration, in deciding what kind of relief to grant. That was a traditional function that equity served.
05-260 +++$+++ 40672 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So even if you had an early neutral evaluator who said this entire claim with pain and suffering and the medical, it's -- all together it's $100,000. But there was some contributory negligence. So I think $80,000 would be right. So there would still be no prorating --
05-260 +++$+++ 40673 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think, first of all, the -- the question presented in this case is whether there's a cause of action. Those -- that question really goes to the amount of money that gets recovered in the cause of action, and actually the -- the question presented in the petition doesn't squarely present that. But insofar as where you're going on to that further -- because this case can be just answered by saying, yes, there's a cause of action under 502(a)(3). Now, insofar as the Court goes further into the make-whole doctrine, I think generally courts should -- courts have recognized that under ERISA what they're supposed to do is enforce the terms of the plan.
05-260 +++$+++ 40674 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So what if the plan said -- you know, this is an insurance company. They don't like litigation -- we are subrogated to double whatever the medical expenses are that we contributed? That's our recovery. It's an equitable claim, but it's going to be enforced according to the terms of the plan.
05-260 +++$+++ 40675 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Court has recognized that -- that Federal courts, especially in an unusual circumstance like that -- but Federal courts do have the obligation under ERISA to determine a common law of rights and obligations under ERISA plans. And there are doctrines like unconscionability and other doctrines that may be applied in particular cases where some plan is just taking advantage of another party, where --
05-260 +++$+++ 40676 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you would still call that an equitable claim?
05-260 +++$+++ 40677 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. It would still be an equitable claim because the question still is are you enforcing the terms of the plan, and -- and the equitable lien cases make quite clear that that court in equity will enforce that so long as a particular -- so long as a particular fund, even if it has not yet come into existence, is what's been specified. In fact, the cases that are cited by Petitioners' counsel to the contrary, starting with the Trist case, was a case that was specifically disapproved in Barnes against Alexander as resting on other grounds. That was a case where the -- there was a contingent fee for lobbying Congress and there was a statute that forbade it. There were two other grounds that the Court decided the case, and then Justice Holmes in the Barnes case went on to say -- well, insofar as the question is open, he gave the answer, which is the question as to whether there's an equitable lien is determined by what the contract says. As far as the make-whole doctrine, another point about the make-whole doctrine that's worth keeping in mind is that insofar as some States have applied it, as a matter of their insurance law and have said, well, an insurance company is not allowed under our State's law to contract out of the make-whole doctrine which we -- under our State's law is the default rule. Insofar as a State has said that, that would apply equally to ERISA plans under the insurance savings clause and there wouldn't be any question I think that it would. But --
05-260 +++$+++ 40678 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It would apply simply as a matter of -- of contract construction in determining what the contract was that -- that would be looked to for determining what equitable remedy would be available.
05-260 +++$+++ 40679 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. And if the insurance contract departed from what the State's law was, the State's law would govern it under ERISA's insurance savings clause. But where you have an -- and so the -- the case with ERISA plans is not really any different than it is outside ERISA. Insofar as a State under its insurance law decides to establish a make-whole doctrine or an allocation rule of some sort or a default rule, it can do that, and that can be applied to insured ERISA plans. But as to uninsured ERISA plans, it wouldn't be applied. And that -- this Court established that in its decision in FMC against Holliday. This case really actually arises -- it was really -- it was at the intersection of two distinct doctrines that -- two distinct lines of cases that both support equitable relief in a case like that. One is the -- those that I've spoken about already, which is the equitable lien cases. The other is the line of subrogation cases that Mr. Coleman spoke about. And from the very earliest times, it was recognized in subrogation cases that that gave the insurer not only a right to advance the insured's claim, but where the insured advanced the claim and got a recovery, he holds it as a trustee for the insurer. And that was recognized from the early -- from the mid-18th century cases that Mr. Coleman cited in his brief. It was recognized by this Court in Comegys -- the Comegys case, written by Justice Story in the 1820's, and it's been a consistent rule. And this is an appropriate equitable relief to enforce the terms of the plan because it arises directly at the confluence of those two lines of equitable cases. Thank you.
05-260 +++$+++ 40680 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Feldman. Mr. Stris, you have 3 minutes remaining.
05-260 +++$+++ 40682 +++$+++ FALSE +++$+++ MR. STRIS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. In my limited time, I'd like to make three very brief points. The first point I'd like to make is why these claims are never permissible under 502(a)(3). And I think it comes out of a -- a concession that Mr. Coleman made in his argument. He answered your question, Mr. Chief Justice -- and he said that they would have had this equitable right without any plan provision. But, hey, they put the plan provision in because that's what section 502(a)(3) requires. You can only get equitable relief to remedy the violation of a plan. That's why these claims are never authorized under 502(a)(3) because they're not really to -- to enforce or remedy the violation of a plan term. More importantly, though, that's not what happened here because in this contract they disclaimed the very equitable principles. And that brings me to my second point, which is that even if the answer to the question we presented in our cert petition is sometimes, the question is still presented. The answer to the question could be that, as you put it, Justice Souter, jurisdictionally sometimes these claims for reimbursement are authorized, and the sometimes is when the contract doesn't disclaim equitable principles because if the party relies on the contract and fails to establish the equitable principles that make the remedy equitable, then it's nothing more than a breach of contract damages case. And Mr. Coleman's answer was very interesting. He tried to -- to sort of squirm out of that by suggesting that, no, it's equitable because this was a pre-allocation of how the money would be distributed. Well, where I'm sitting, that looks an awful like a liquidated damages provision for a breach of contract. And there's nothing wrong with a liquidated damages provision, but this Court has squarely held that that's legal relief when it's for a breach of contract. It's prohibited by section 502(a)(3). And that brings me to my final point, which is this. Just because the source of the claim is the contract doesn't mean that there can never be an equitable remedy. We never take this position, Justice Scalia. But what it does mean is that the plaintiff has to fit within one of the narrow exceptions at equity for an equitable remedy if they're seeking money for a violation of a plan term. And I'll close by saying that this theory of lien by assignment is very dangerous because it is not restitution. It does not require tracing. Plans could write terms in that say, if you breach this provision of the contract, we are entitled to specific funds out of any bank account that you may have in the bank at the time that you breach the contract. Under their theory of the Barnes line of cases, that would be equitable lien by assignment. That clearly bars legal relief. Thank you.
05-260 +++$+++ 40683 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Stris. The case is submitted.
05-352 +++$+++ 40687 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first in United States v. Gonzalez-Lopez. Mr. Dreeben.
05-352 +++$+++ 40689 +++$+++ FALSE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: This Court has made clear in its jurisprudence concerning the Sixth Amendment right to the assistance of counsel that the core purpose of that right is to secure a fair trial conducted in accordance with adversary procedures. As a result of the Court's analysis of that purpose, this Court has required in its Sixth Amendment assistance of counsel cases either a showing that prejudice be demonstrated in a particular case to show that a fair trial has not been guaranteed or that there is a basis for presuming prejudice.
05-352 +++$+++ 40690 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ When did -- when did we first hold that the State had to provide counsel if -- if the defendant could not afford his own counsel?
05-352 +++$+++ 40691 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that Gideon was decided in 1963, Justice Scalia.
05-352 +++$+++ 40692 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that's what we generally mean nowadays by the right -- by -- by the right to counsel. And when you talk about fairness being its objective, you're talking about the objective of that newly discovered right to have counsel appointed. But I don't know that fairness was the -- was the object of the original right to counsel in the -- in the Bill of Rights, which -- which only applied to -- to your ability to hire your own counsel, and if you couldn't afford counsel, you didn't get one. I hardly think that -- that fairness is the object of that.
05-352 +++$+++ 40693 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia, in fact, this Court has recognized that under the Sixth Amendment, as applied to the Federal Government, even before the Sixth Amendment was made applicable to the States through the Fourteenth Amendment, that it did guarantee the right to appointed counsel if the defendant --
05-352 +++$+++ 40694 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ When -- when was our first holding to that effect?
05-352 +++$+++ 40695 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Johnson v. Zerbst, I believe, was in the '30s.
05-352 +++$+++ 40696 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In the '30s. Gee, that's --
05-352 +++$+++ 40697 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the fact --
05-352 +++$+++ 40698 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that's hardly -- that's hardly the original purpose and meaning of the Sixth Amendment, and -- and you come here and say that its fundamental purpose is something that is only the purpose of the newly evolved Sixth Amendment and not of the original one.
05-352 +++$+++ 40699 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, our position on what the purpose of the Assistance of Counsel Clause is -- is drawn from what this Court has said that purpose is in the way that it's elaborated it. And I think that if the Court looks at the spectrum of contexts in which the Court has applied the Sixth Amendment right to counsel, it's apparent that the most fundamental aspect of the guarantee and the one that is most indispensable to protecting the fairness of a trial, which is the overarching goal of the Sixth Amendment, is that the defendant have counsel by his side at all.
05-352 +++$+++ 40700 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't think that's the overarching goal of the original. I think it's -- it's very fundamental, that if you have funds with which you can hire someone to speak for you, you should be able to use all of your -- I mean, your -- no. Your -- your freedom is at stake. You should be able to use all of your money to get the best spokesman for you as possible. That's the element of fairness that I think is there.
05-352 +++$+++ 40701 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I think that this Court has made clear that the core element of fairness is protecting the defendant's ability to have a lawyer there at all, and if the lawyer is not there, the essential fairness of the trial is in jeopardy. And it's for that reason --
05-352 +++$+++ 40702 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But until the 1930s that element didn't exist.
05-352 +++$+++ 40703 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There were --
05-352 +++$+++ 40704 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Until the 1930s, if you didn't have the money, you didn't have counsel.
05-352 +++$+++ 40705 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's not entirely true, Justice Scalia, because there certainly were many jurisdictions, even at the time of the founding, that provided for the appointment of counsel if the defendant was not able to retain his own counsel.
05-352 +++$+++ 40706 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, excuse me. As far as the Constitution is concerned, if you didn't have the money, you didn't have counsel.
05-352 +++$+++ 40707 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What this Court has done I think, in the course of the 20th century jurisprudence that has examined the right to counsel, is establish a hierarchy of the critical rights that are necessary for a fair trial. The first, of course, is that --
05-352 +++$+++ 40708 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but what if -- just to take an example, let's suppose there are two possible defenses you could raise, entrapment and that you didn't do it. And one lawyer wants to argue entrapment and the other wants to, you know -- the one that you want is the one who said we'll argue you didn't do it. Don't you have a right to have a lawyer present the defense along the lines you want presented as opposed to having to take another lawyer that is different than your choice?
05-352 +++$+++ 40709 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, within limits, I think that that's certainly true, Mr. Chief Justice. But, of course, this case and many of the cases that raise this issue do not involve a situation in which the defendant is deprived of retained counsel with whom he can consult and whose strategic decisions he can control through his role as the client.
05-352 +++$+++ 40710 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that was my -- even in the Chief Justice's hypothetical, I -- I take it the client has a right to direct the attorney what defense to present, or am I wrong about it?
05-352 +++$+++ 40711 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think within limits, that's absolutely right, Justice Kennedy. And the right of counsel of choice, as this Court has articulated it in its Wheat decision, is far from an absolute right. It's a qualified right that does yield to interests that are designed to protect the fairness of the trial.
05-352 +++$+++ 40712 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But in this -- in this case, Mr. Dreeben, we have a defendant ready, willing, and able to pay for an experienced lawyer in whom he has great trust. He's instead stuck with a younger, rather inexperienced lawyer, and he says, that doesn't fit within my Sixth Amendment right. I have a right to choose the counsel that I want and not the one that the court forces on me.
05-352 +++$+++ 40713 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Ginsburg, I think it's critical in this case that it -- the court never forced a lawyer on Respondent in this case.
05-352 +++$+++ 40714 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it was a junior counsel. As I understand it, the counsel that represented him finally, when the judge wrongfully refused to allow his chosen counsel to proceed, was one chosen as a junior by the more senior counsel, the one that defendant wanted.
05-352 +++$+++ 40715 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the Respondent had months after that disqualification was made clear and the court of appeals denied mandamus to retain a different counsel if he chose to retain a different counsel. There's no showing in this record that the Respondent didn't consult with the lawyer who was disqualified and with the lawyer who he elected to have represent him at trial and not determine that that was in his best interest at that time.
05-352 +++$+++ 40716 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So he was just disabled from -- from his first choice.
05-352 +++$+++ 40717 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He was disabled --
05-352 +++$+++ 40718 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The court told him you can't have the counsel you want. Go find somebody else.
05-352 +++$+++ 40719 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, and that's why we are not disagreeing in this case that there's been an infringement of his constitutionally protected interest in having counsel of choice. But the question for this Court is how should that be defined as a denial of a Sixth Amendment right. Should it be something that is automatically reversible so that even if Respondent had --
05-352 +++$+++ 40720 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How do you reconcile your position with the right to self-representation, if somebody doesn't want a lawyer at all? And I guess if the judge insists on him taking a lawyer, that could be reversible error.
05-352 +++$+++ 40721 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court has made clear that the right to self-representation is unique.
05-352 +++$+++ 40722 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is even a greater right than the right to pick your own lawyer.
05-352 +++$+++ 40723 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is a much greater right because it protects autonomy interests that are --
05-352 +++$+++ 40724 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why doesn't the choice of counsel protect autonomy too?
05-352 +++$+++ 40725 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It protects it, but in a much --
05-352 +++$+++ 40726 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You have a lawyer. After 30 years, you trust him completely. You want him to represent you. Isn't that a -- an element of autonomy?
05-352 +++$+++ 40727 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's a modest element of autonomy in the right of counsel of choice, but the right of self-representation is complete autonomy. There is no substitute for the individual defendant's voice in the courtroom. There is no representative that could give him that right. And this Court has also recognized that the right to self-representation is usually a right that redounds negatively for the defendant. It tends to produce worse trial outcomes for the defendant. And in recognition of the autonomy as independent of fair trial interests that are protected by the right of self-representation, this Court has placed it in that very small group of rights in which automatic reversal is appropriate.
05-352 +++$+++ 40728 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What would the Government's position be if the disappointed client whose choice of counsel was rejected by the court applied for mandate review in the court of appeals?
05-352 +++$+++ 40729 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our position is that if there were a clear abuse of discretion, in accordance with the ordinary mandamus standards --
05-352 +++$+++ 40730 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, we don't know -- we don't know if that's the case. He -- he wants to go immediately to the court of appeals. What would the Government's position be?
05-352 +++$+++ 40731 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Government's position is that he could seek a writ of mandamus, and if he qualified under the standards for mandamus, then he could obtain relief. This Court has already held in the Flanagan decision that there's no automatic right of interlocutory review from the denial of counsel of choice, and the Court did that in recognition of the fact that either the right could be vindicated at the end of the trial or it's not totally separable from the merits.
05-352 +++$+++ 40732 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the Government always acquiesces in the propriety of seeking mandate from the court of appeals?
05-352 +++$+++ 40733 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think it's really up to the Government. The defendant can seek mandamus, and if the --
05-352 +++$+++ 40734 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I mean, I suppose the Government can object that it's improper or that it's unnecessary or a waste of time. I'm asking what the Government's position is.
05-352 +++$+++ 40735 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Government's position is that it would depend on whether the defendant could satisfy the high standards required for mandamus. And certainly if the Government believed that the disqualification was --
05-352 +++$+++ 40736 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if -- if the question is fairness, as you -- as you propose, then it would seem to me that there would be no need for the extraordinary proceeding.
05-352 +++$+++ 40737 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Government doesn't dispute that as in this -- as this Court held in Wheat, there's a presumption in favor of counsel of choice. Every court has rules that govern how lawyers are to enter their appearances and represent defendants, and district courts can make --
05-352 +++$+++ 40738 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you say that presumption is sufficient so that mandate should be entertained by a court of appeals anytime this question comes up?
05-352 +++$+++ 40739 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not anytime, Justice Kennedy. I think that would effectively overturn this Court's holding in Flanagan, that there's no right of taking a collateral order appeal in every single case involving the disqualification of counsel. But what's critical here, I think, is to compare the position of a defendant who has no counsel at all, the position of a defendant who has counsel who's laboring under a conflict of interest, the position of a defendant who has a counsel who's not performing competently, who's making professionally unreasonable decisions. Only in the first of those instances has this Court held that automatic reversal without any showing of prejudice at all is warranted.
05-352 +++$+++ 40740 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Did Flanagan, the case that denied mandamus on this issue -- did it assume any resolution of the question whether if -- if you can't have counsel of your choice, in order to get your conviction reversed, you have to show -- you have to show that the error was not harmless?
05-352 +++$+++ 40741 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, Flanagan held that there was no collateral order appeal. It didn't address the mandamus question.
05-352 +++$+++ 40742 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, I understand, but --
05-352 +++$+++ 40743 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In rejecting --
05-352 +++$+++ 40744 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- but I would certainly think that it's relevant to the question of whether you allow immediate appeal, what the consequences of not allowing immediate appeal are. If you're totally deprived of your right, you -- you might allow it and --
05-352 +++$+++ 40745 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What this Court said in Flanagan is that if the defendant, at the end of the day -- and if was the operative word -- could obtain automatic reversal, then the defendant's interests could be vindicated at the end of trial. And if, alternatively, the defendant had to establish prejudice, then the interlocutory appeal would fail the requirement that the issue be totally separate from the merits, and therefore, there was no collateral order appeal. And Flanagan didn't address this issue, but in addressing it, I suggest that this Court should look at the way that it has protected other criminal defendants' rights under the Sixth Amendment.
05-352 +++$+++ 40746 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Dreeben, did I understand your brief to suggest that the -- I understand your main burden is to overturn the idea of automatic reversal.
05-352 +++$+++ 40747 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
05-352 +++$+++ 40748 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if there were a standard, is your standard of prejudice the same as under Strickland, or is it a different standard?
05-352 +++$+++ 40749 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our -- our standard of prejudice, our preferred standard of prejudice, is the same as under Strickland. We would not require the defendant to show that his second-choice retained counsel performed incompetently. Second-choice retained counsel can perform fully competently and have made a significantly different strategic course of action than the counsel who actually went to trial, and that could easily be established by having an affidavit or testimony submitted. It's actually easier than conducting a Strickland inquiry because in Strickland, you're looking at the way counsel performed and your hypothesizing how a competent counsel would perform.
05-352 +++$+++ 40750 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why would it be easier than in Strickland? In the -- in the case of ineffective assistance of counsel, you have a very focused inquiry, but in this situation, how are you going to -- how can a judge assess, after the fact, whether the strategy that was pursued was inferior to another strategy that's -- that -- that allegedly would have been pursued if the first-choice attorney had been selected? Or maybe even more difficult, how can a judge assess whether the attorney who ended up representing the defendant was in some way less skillful than the attorney that the -- the defendant preferred to have? That seems like a very difficult determination to make.
05-352 +++$+++ 40751 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Alito, I don't think that it is that difficult. I think, in fact, it's easier than Strickland because in Strickland, you have to look at one lawyer and decide whether his performance was not competent and then hypothesize what a competent lawyer would have done, and then conduct the counter-factual inquiry of how it would have affected the trial.
05-352 +++$+++ 40752 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but isn't it almost essential, in one of these inquiries, to -- to invade the attorney-client privilege over and over again to find out what they might have done with a different lawyer?
05-352 +++$+++ 40753 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This almost invariably occurs in every Strickland case. And my fundamental submission here is that a defendant who is saddled with a lawyer who performs in an unprofessionally incompetent manner cannot overturn his conviction without --
05-352 +++$+++ 40754 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't -- I don't want -- I don't want a competent lawyer. I want a lawyer who's going to get me off. (Laughter.)
05-352 +++$+++ 40755 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I want a lawyer who will invent the Twinkie defense. I would -- I would not -- I would not consider the Twinkie defense an invention of a competent lawyer. But -- but I want a lawyer who's going to win for me. And -- and there's no way to predict what lawyer has a charming way with the jury or -- or brings in some -- some side matters that maybe shouldn't be brought in but the judge is silly enough to let them in. I want to win. And -- and the criterion for winning is not how competent is the lawyer necessarily.
05-352 +++$+++ 40756 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, but I think that -- that Your Honor's question reveals that different lawyers will make different strategic judgments and assessing the impact of those on the trial --
05-352 +++$+++ 40757 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, in -- in hindsight, you've always made a mistake if your client is found guilty. I -- I'm just not sure how this inquiry would proceed. It seems to me that there ought to be either automatic reversal on one -- on one hand, or the other rule ought to be incompetency of counsel. But you're -- you're going to have satellite litigation with speculation, and it seems -- it seems to me not a good remedy.
05-352 +++$+++ 40758 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- the remedy that -- that this Court has chosen when counsel is not competent requires I think a -- a systematic inquiry. I wouldn't call it entirely speculative. It's a focused inquiry into what the impact would have been had counsel performed differently.
05-352 +++$+++ 40759 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The only issue in that case is competent performance, and it seems to me that the -- the difficulty behind a number of our questions this morning is that you are trying to draw an analogy from -- from counsel issues that don't involve an autonomy interest to a counsel issue that does involve an autonomy interest, maybe in theory not as greatly as self-representation, but as -- as everybody agrees, as you've said, it involves some autonomy interest. And if we're going to import the rule of prejudice from non-autonomy cases as the -- as the necessary condition in autonomy cases, then it seems to me the autonomy interest is devalued to the point of almost of disappearance. It becomes not much more than -- a little bit, but not much more than an ineffective assistance case.
05-352 +++$+++ 40760 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think it becomes considerably more than an ineffective assistance case. And the autonomy interest that's being protected here needs to be viewed in relation to the fact that the defendant can still retain his counsel. It's not that he's denied all choice of counsel. He's denied his first-choice counsel which --
05-352 +++$+++ 40761 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but you say he's -- he's not denied all choice. He is denied the choice that he wants to make.
05-352 +++$+++ 40762 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He may very well be denied that choice, Justice Souter, if he tries to retain that lawyer and that lawyer has a conflict of interest.
05-352 +++$+++ 40763 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's not the State's problem. We're talking about the State standing in the way of it. In this case the State through the court system stood in the way of it because it made an error that denied him his right. But the -- the -- it seems to me the autonomy interest is not merely an interest in choosing second-best. It's an interest in choosing the one you want.
05-352 +++$+++ 40764 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it isn't necessarily second-best. And the irony of Respondent --
05-352 +++$+++ 40765 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's second-best to the guy who wants somebody else.
05-352 +++$+++ 40766 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if -- if he retains somebody else and that person obtains a complete acquittal, that -- that individual is, no doubt, going to be very satisfied. And the historical example --
05-352 +++$+++ 40767 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But what good is that as -- as an answer to our question? Sure, no harm, no foul. But that can't be the -- that can't be the criterion for a court and that can't be our criterion in deciding whether he really has a right to his first choice or not.
05-352 +++$+++ 40768 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, I think what it illustrates is that the right to choose counsel is connected with the desirability, as Justice Scalia pointed out, of a favorable outcome. And it is not complete --
05-352 +++$+++ 40769 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's -- it's basically -- in -- in Justice Scalia's question, it is connected with what the -- the client believes will be a favorable outcome by using the lawyer he wants. It's his judgment about what will probably be a favorable outcome, and his judgment about the lawyer who is most likely to bring that about.
05-352 +++$+++ 40770 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's --
05-352 +++$+++ 40771 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, all -- all I'm getting it, is that's a different -- that is a very different criterion from what we apply in Strickland.
05-352 +++$+++ 40772 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and I'm not suggesting that the Court apply the criteria in Strickland. And this Court has a variety of other standards that it could choose if it concluded that the Eighth Circuit's rule of automatic reversal provides an unjustified windfall for a defendant when it's considered that defendants who -- this would basically be equating the right of counsel of choice, which is available only to about 10 percent of our defendants in the criminal justice system, because the other 90 percent don't have the funds. Therefore, they're not hiring anyone.
05-352 +++$+++ 40773 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why -- why take it away from the 10 percent?
05-352 +++$+++ 40774 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not suggesting that it be taken away. I think that it needs to be protected.
05-352 +++$+++ 40775 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're -- because you're saying they don't have it.
05-352 +++$+++ 40776 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm saying that they have it, but in order for this Court to conclude that reversal of a trial that can be presumed fundamentally fair, because the defendant, in fact, went to trial with counsel who he had chosen, albeit as his second choice, should not occur with all of the societal impacts that that has, the potential for victims to have to go through a retrial.
05-352 +++$+++ 40777 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's a fair trial. Nobody is saying it wasn't a fair trial, but he didn't have the lawyer he wanted. I mean, we could assure everybody a fair trial by allowing nobody to pick their lawyers and assigning lawyers to everybody. That would -- that would accomplish fair trials throughout the United States, but that's not the system we have. You're -- you're entitled to the lawyer that you want.
05-352 +++$+++ 40778 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and we're not disputing that that entitlement exists. The question is whether it should be remedied automatically, which puts it in a --
05-352 +++$+++ 40779 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, Mr. Dreeben, I think you're underestimating the importance of the autonomy interest because going through a criminal trial for a defendant is a very traumatic experience, not just what happens in the courtroom, but during the entire process. He has a lawyer of his own choice who's going to advise him on what he should do and how he should react to possible changes in his own condition and everything else. The -- the autonomy interest is powerful in that situation.
05-352 +++$+++ 40780 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the autonomy interest is deserving of protection, as this Court has held, but --
05-352 +++$+++ 40781 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Totally independently of the trial strategy --
05-352 +++$+++ 40782 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I -- I don't agree that it's -- that it really has a function in the Sixth Amendment that's independent of what the Sixth Amendment itself says, which is the assistance of counsel for his defense. And this Court has made clear that in the context in which it's looked at and involving conflicted counsel, involving ineffective counsel, involving total denial of counsel, involving appointment of counsel or even the retention of counsel in a situation where no lawyer could be expected to perform in a competent manner and protect the defendant's rights, that all of those rights and interests are tied to the basic purpose of the Assistance of Counsel Clause. It is not a expressive clause in the middle of the Constitution. It is not a mini First Amendment. It is a right that is tied to the purpose of the Sixth Amendment guarantee in helping assure fair trial outcomes.
05-352 +++$+++ 40783 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well --
05-352 +++$+++ 40784 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's the right of assistance of counsel for his defense. Right?
05-352 +++$+++ 40785 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
05-352 +++$+++ 40786 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Not for the fuller expression of his autonomy.
05-352 +++$+++ 40787 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. And that is why this Court, in construing this right, in the context of what I think is probably the most critical aspect of the right, once you have a lawyer in the criminal justice system, namely the right to the effective assistance of counsel, the Court has looked to the impact on the fairness of the trial. Now, this Court --
05-352 +++$+++ 40788 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I, Mr. Dreeben --
05-352 +++$+++ 40789 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, you -- you could say the -- you could say the same thing, counsel, about his right to self-representation, that he has the right to self-representation for his defense or for his --
05-352 +++$+++ 40790 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, you could not say that, Justice Scalia. This Court did not infer the right of self-representation from the Assistance of Counsel Clause. It inferred it from the network of rights that are provided in the Sixth Amendment --
05-352 +++$+++ 40791 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but it is limited to the right of self-representation for his defense, just as his choice of counsel is limited to his choice of counsel for his defense.
05-352 +++$+++ 40792 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that's accurate, Justice Scalia, because what the Court made clear in its self-representation cases is that there was an important historical tradition that was being protected, and it's being protected independent of the defendant's interest in a successful outcome. It's allowing the defendant to speak to the jury in his own voice because there's something deemed fundamentally unfair about a system in which a defendant needs to go to prison without ever having been able to speak in his own voice to a courtroom.
05-352 +++$+++ 40793 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why is there a less worthy historical tradition to be honored in a defendant's choice of his own counsel?
05-352 +++$+++ 40794 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't deny that there's a historical tradition, Justice Souter.
05-352 +++$+++ 40795 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- but you --
05-352 +++$+++ 40796 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it's a very qualified one.
05-352 +++$+++ 40797 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you concede that if -- if it's a historical tradition to speak in one's own voice, it gets -- for practical purposes, it gets a kind of absolute respect. Whereas, if it's a historical tradition to choose one's own counsel, it does not get that -- I mean, it's very -- that seems to me a -- a kind of historical dissonance.
05-352 +++$+++ 40798 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There -- the point that the Court relied on in concluding that automatic reversal was appropriate for denial of the right to self-representation included the critical fact that this is not a right that proceeds in connection with the fairness of the trial. Its -- its sole existence is --
05-352 +++$+++ 40799 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right, and the question is he -- I mean, the -- the whole point here isn't the -- isn't the interest in autonomy a separate interest which should be recognized by some means other than merely looking to the fairness of the trial.
05-352 +++$+++ 40800 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that it is a right that should be -- an interest that should be recognized, and it is, of course, recognized in Wheat by saying that it's comprehended within the Sixth Amendment. There is a qualified interest that a defendant has in retaining counsel of choice. But should it be elevated to be equated with the total denial of counsel?
05-352 +++$+++ 40801 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But compared to what? You haven't fully stated what you would replace the automatic new trial with. And you said -- you started to say something about if the defendant could show that his preferred counsel would have pursued a different strategy. Is that it? Or would he have to go beyond that and show that that different strategy would have a greater chance of success than the strategy that was in fact pursued?
05-352 +++$+++ 40802 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, I think the Court has before it three options for some standard that would not consist of an automatic reversal standard. The first, and the Government's preferred position, is that the defendant should come in and show what counsel of first choice would have done as a matter of strategy and show that if he had pursued that, it would create a reasonable probability of a different outcome, the same test as in Strickland.
05-352 +++$+++ 40803 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does different outcome mean --
05-352 +++$+++ 40804 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ More favorable --
05-352 +++$+++ 40805 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- if the defendant is found guilty, he would have been acquitted?
05-352 +++$+++ 40806 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. The same -- same test as in Strickland. It doesn't require proof that more likely than not the defendant would have been acquitted, but it undermines confidence in the outcome.
05-352 +++$+++ 40807 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How do you think that would work with the Twinkie defense?
05-352 +++$+++ 40808 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think, Justice Scalia, you'd have to actually look at the specific facts of the case and make a determination.
05-352 +++$+++ 40809 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't think any court would conceivably reverse the -- the disqualification of counsel on the ground that he would have come up with that defense and win.
05-352 +++$+++ 40810 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And if that's because any court would conclude that that defense was not likely to prevail, then I would submit that the proper accommodation of the societal interest in respecting a final judgment and protecting the interest -- the qualified interest in counsel of choice is properly resolved.
05-352 +++$+++ 40811 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let me ask --
05-352 +++$+++ 40812 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You said you had -- you said you had -- your first preference would be --
05-352 +++$+++ 40813 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
05-352 +++$+++ 40814 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- different strategy and would have been acquitted with that strategy. What's your other --
05-352 +++$+++ 40815 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The second option would be the standard that the Seventh Circuit selected in Rodriguez v. Chandler, which requires a showing that the second-choice lawyer was deficient in some important qualification or would -- pursued a different strategic interest and a different strategic approach than first-choice counsel, and that's it. More analogous to this Court's conflicts jurisprudence where, when there is simultaneous multiple representation, it's sufficient for the defendant to show a different strategic approach that was not taken because the conflict caused the -- the lawyer not to do that, and there's no requirement of outcome determinativeness that goes along with that. And the third alternative would simply be to provide a harmless error standard, instead of deeming this to be structural error, equating it with a biased judge, total denial of counsel, racial discrimination in the grand jury. This Court could provide a standard in which it's the Government's burden to show that the error was harmless beyond a reasonable doubt, which in cases of overwhelming evidence, the Government could establish. And although, I acknowledge, Justice Souter, that the autonomy interest would be, to a certain extent, lost in that instance, there are many rights, many interests that are sacrificed and not deemed remediable when the error is found harmless.
05-352 +++$+++ 40816 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But isn't the sacrifice sort of egregious here? Because in the case of self-representation, we give virtually absolute respect to it, knowing perfectly well that the decision to represent one's self is usually crazy. Whereas, in this case, when the decision may very well be sound, we give -- we would, on your view, give a -- a much reduced respect to it. That does not seem consistent.
05-352 +++$+++ 40817 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, I -- I do want to reserve the remainder of my time, but the point is that a defendant who has his second-choice opportunity of counsel is able to express his autonomy interests in a much more significant way than a defendant who is denied the right to self-representation.
05-352 +++$+++ 40818 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Dreeben.
05-352 +++$+++ 40819 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd like to reserve my time.
05-352 +++$+++ 40820 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Fisher.
05-352 +++$+++ 40822 +++$+++ FALSE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: At the moment a trial court impermissibly disqualifies a defendant's retained counsel of choice, it violates the Sixth Amendment. It is not necessary to wait and see what happens at any trial that follows, and indeed, in our view --
05-352 +++$+++ 40823 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's not just disqualify. Suppose he denies a motion for continuance. The counsel is in another trial and he said, I can't be here for another 10 days. And the court says, I -- I deny that. I -- I assume if it's an abuse of discretion, the result would be the same under your view.
05-352 +++$+++ 40824 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, this Court already has a body of jurisprudence, beginning with Powell against Alabama, that decides when a judge acts within his discretion in denying a continuance, for example, to allow the defendant to get the retained counsel of his choice. We'll -- we'll leave that jurisprudence where we found it when we showed up today because here, it's undisputed in the record, and the -- and the United States does not dispute in this Court, that the denial was impermissible --
05-352 +++$+++ 40825 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you may leave the jurisprudence where you found it, but other attorneys might not. And I'm -- I'm concerned with the consequences of your rule. There are many reasons, it seems to me, why a counsel may not be able to represent the -- the client that has chosen him as -- as the first choice.
05-352 +++$+++ 40826 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
05-352 +++$+++ 40827 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if -- if you prevail here, it seems to me that counsel can come in and say, now, Judge, I've looked at your calendar, and you can certainly wait for another 2 weeks, and the judge has to do it.
05-352 +++$+++ 40828 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't -- we don't believe that's the --
05-352 +++$+++ 40829 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I don't know why he wouldn't.
05-352 +++$+++ 40830 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't think that's the case, Justice Kennedy. In this Court's jurisprudence, you've already recognized that trial judges have substantial discretion, both in terms of calendaring and efficiency concerns, and in the Wheat case, for things like conflicts in interest to regulate when the defendant is able to proceed with the defendant -- I'm sorry -- with the lawyer he's chosen. As I said, we're not asking to change the status quo in any respect here because here it's undisputed that the trial judge had no legitimate reason to deny the defendant --
05-352 +++$+++ 40831 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You would require -- if -- if a defendant is on his second choice and he's filed an affidavit saying, you know, the guy did a great job. I can't think of a way he would have done anything differently. I was convicted. I'm perfectly happy with his strategy, but I didn't get my first choice. You would still require reversal of the conviction in that case.
05-352 +++$+++ 40832 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it seems -- you know, perhaps we could imagine a scenario, Mr. Chief Justice, where the defendant effectively waives his right, and if he came out and said so much to the court. But certainly it is our position that if he's denied the first-choice counsel against his wishes and without any legitimate justification, a Sixth Amendment violation occurs right then and there.
05-352 +++$+++ 40833 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and if -- if he were not able to afford a -- afford an attorney and one were appointed for him and that lawyer were incompetent, that client would still have to show prejudice. But in your case, you don't have to show anything at all.
05-352 +++$+++ 40834 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. And that goes to the heart of the kind of right that we're talking about today, and this is the critical difference between the counsel of choice right and the Strickland right. And the difference is in -- in the counsel of choice right, the Government has affirmatively acted to interfere with the way the defendant wants to conduct his defense and has every right to conduct his defense --
05-352 +++$+++ 40835 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does a -- someone relying on appointed counsel have the same right? Why can't he say to the first person who comes through the door, you know, I've got a -- I'd like to see the others before I make a choice?
05-352 +++$+++ 40836 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, he doesn't, Your Honor. The --
05-352 +++$+++ 40837 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why not?
05-352 +++$+++ 40838 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the defendant who has counsel of his -- who's -- who's appointed counsel does have a limited right to control certain fundamental decisions in his defense such as whether he testifies, whether he accepts a plea offer. So there is even some autonomy that resides in the defendant who has appointed counsel. But the critical distinction --
05-352 +++$+++ 40839 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I think he can also reject an appointed counsel. Can't he go to the court and say, I -- you know, I don't like this counsel?
05-352 +++$+++ 40840 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly that happens, Justice Scalia.
05-352 +++$+++ 40841 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, I know it happens.
05-352 +++$+++ 40842 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You know, there are -- there are certain instances where a defendant may be so -- have so little basis for doing so or may be -- you know, may be asking too much of the court --
05-352 +++$+++ 40843 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it seems to me that would happen if there's an autonomous, structural right of the kind you -- you urge.
05-352 +++$+++ 40844 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the autonomy interest in this case is the defendant's right to control his defense. It's the defendant's right, as this Court put it in Faretta and later in McKaskle, to control the way his case --
05-352 +++$+++ 40845 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So I want to control the case by having a different appointed counsel.
05-352 +++$+++ 40846 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, this Court -- I mean, in numerous areas of this Court's jurisprudence, not just in criminal procedure, this Court recognizes that there -- people have certain rights, but if they have the means to effectuate those rights, they're in a better position than people that don't. Take the First Amendment. The First Amendment protects people with printing presses, but the Government doesn't have to go around giving other people printing presses in order to -- to say what they want to say. So what we're talking about here is the 10 percent, or whatever number we want to ascribe to it, of defendants who have the -- the ability and the means to hire retained counsel. And at the moment a trial court tells them, for no legitimate reason, you cannot go forward with this person, that's what we submit constitutes a Sixth Amendment violation. And in --
05-352 +++$+++ 40847 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How many lawyers -- you're talking about a very refined assertion of a constitutional right. I mean there are hundreds and hundreds of thousands of lawyers, and what you're saying is that if he doesn't get choice one, choice two is just not going to do, no matter how close, no matter how similar their approaches are going to be. It's not like he's, you know, wants a Rolls Royce and he gets a -- you know, whatever -- a Yugo or something. He could choose, you know, the next best out of hundreds and hundreds of thousands.
05-352 +++$+++ 40848 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In some cases, that's true, Mr. Chief Justice, although I would hasten to -- to tell you that even in the context of defendants who can retain counsel, very often, if their retained counsel is disqualified, they're forced, as in this case -- they're simply out of money and have to go forward with local counsel. So as practical terms, I'm not quite sure that's right. But, yes, we are talking about a small universe of people, but it's an important universe of people. It's people that come into court and they say this is how I want to conduct my defense. In McKaskle, talking about the self-representation right, this Court said that oftentimes the messenger is as important as the message in -- in a criminal defendant's case.
05-352 +++$+++ 40849 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, can there not be a case where it's clear beyond a reasonable doubt that the -- the judge's mistaken ruling on a disqualification motion didn't have any effect on the outcome?
05-352 +++$+++ 40850 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think only in the case of an acquittal. And -- and there -- and there, of course, we don't have an appeal. But, Justice Alito, I think this goes back --
05-352 +++$+++ 40851 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why not?
05-352 +++$+++ 40852 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- to the Twinkie --
05-352 +++$+++ 40853 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why not in the case of an acquittal? There's still a violation of the Sixth Amendment. Maybe you don't have an appeal, but you have a 1983 action. Right? Because your constitutional rights have been violated because, although you won, you didn't win with the counsel of your choice. And if -- your personal autonomy interests have been quashed.
05-352 +++$+++ 40854 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think you'd have a constitutional violation, but it would, in fact, be harmless, and I don't think you'd have a 1983 action because --
05-352 +++$+++ 40855 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It wouldn't be harmless under your theory because your theory is that this is giving expression to your personal autonomy. It's not simply for your defense. If it were harmless, it would say that it's totally wrapped up in the defense. But there's another constitutional interest under your theory.
05-352 +++$+++ 40856 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. Well, I -- I think what I'll say is then we have an immunity problem with bringing the 1983 case.
05-352 +++$+++ 40857 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let's say the defendant wanted to be represented by a relative whose -- whose specialty is real estate, and for some reason, that lawyer is wrongfully disqualified. And so then the defendant ends up with a very experienced criminal practitioner with a national representation -- a national reputation, and still the defendant is convicted. Could that not be harmless beyond a reasonable doubt?
05-352 +++$+++ 40858 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me say two things to that, Justice Alito. The first is that's akin to the hypotheticals in the United States' brief. We've -- we're not aware of that situation ever having occurred. But if it did, yes, you would have a violation. And it's important to separate the right from the remedy here. We would unquestionably have a Sixth Amendment violation when the trial court, for no legitimate reason, said, you cannot go forward with the counsel of choice. Now, the only question I think you're framing is whether we'd have a Chapman case there. But this just brings up, Justice Scalia's Twinkie case, and to take away --
05-352 +++$+++ 40859 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Or -- or my Uncle Vinnie. What about the real -- the real case of my Uncle Vinnie? There's --
05-352 +++$+++ 40860 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-352 +++$+++ 40861 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't know -- I don't know whether he was a real estate lawyer or not. (Laughter.)
05-352 +++$+++ 40862 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'll try to do even better than Uncle Vinnie, and say in our brief we talk about a case, the Euel Lee case, which is a case where a black defendant wanted to go forward with his counsel of choice in -- in the District of Maryland, and he was forced to go ahead with a more experienced, establishment-type counsel and -- and to his detriment. So -- so we proceed at our peril where we say that the defendant doesn't have the right to decide what's best for him. The core right, which this Court recognized in Wheat -- we would submit to the Court that this Court saying in Wheat there's a presumption that the defendants have the right to proceed with counsel of choice really can't be explained in any other way than saying that the right -- the Sixth Amendment right here goes beyond simply a fair trial and does encompass an autonomy interest. And to conceptualize that autonomy interest within the Sixth Amendment the way that Wheat does is simply to say that the right to counsel of choice is like any number of other Sixth Amendment rights, which is to say, trial judges have the power to curtail it or qualify it when they have legitimate reasons for things like the integrity of the courts, for things like the efficiency of the docket, Justice Kennedy, and lots of other things. The same is true of self-representation. A defendant does not have an unqualified right to self-representation. A defendant can be forced to have standby counsel. The defendant can even have his right to self-representation taken away if he's too -- too disruptive in the courtroom. So the same kinds of concerns --
05-352 +++$+++ 40863 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but -- but this is all subject challenge as an abuse of discretion.
05-352 +++$+++ 40864 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. And there is -- the United States raises in its brief the -- the supposed danger that courts and prosecutors will be too hesitant to challenge selected counsel of choice, but you've already taken that fully in consideration in your Wheat decision. I mean, that's the basis for this Wheat decision is to say these are decisions that have to be made at the outset of trial. And so, therefore, we're going to give trial judges substantial latitude and broad discretion to decide when -- when the defendant has to accept a different lawyer.
05-352 +++$+++ 40865 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, I suppose this -- this right applies on appeal as well. Right? Somebody says, I want Mr. Fisher to argue my case in the Supreme Court. I don't want anybody else. And -- and yet -- and we get motions for admission to our bar pro hac vice. If we deny one of those, does that violate the Sixth Amendment?
05-352 +++$+++ 40866 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's not contested in this case that the -- that the pro hac vice denial did violate the Sixth Amendment. So I'm not sure -- this isn't something you have to deal with in this case. But, yes, this would be a right that would -- that would go forward on appeal, provided the defendant walked into court and said this is the person who I want to go forward with me, and the court, under its rules and practices and in the substantial discretion that court has in Wheat, if the trial court simply went -- if the court simply went off the reservation and said, no, you can't have this person for no reason, there would be.
05-352 +++$+++ 40867 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are you saying that this -- trial is -- is one thing. Appeal -- but you say he would do the appeal over? He'd do the appellate argument over? Do the petition for cert over with counsel of choice? There's a different stage involved.
05-352 +++$+++ 40868 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It might, Justice Ginsburg. And to be frank with you, I haven't thought all the way through the consequences --
05-352 +++$+++ 40869 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are you entitled to represent yourself on appeal?
05-352 +++$+++ 40870 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, you're not.
05-352 +++$+++ 40871 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So --
05-352 +++$+++ 40872 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So there is a difference, of course, this Court has recognized in its Martinez case, that takes place. But to bring the point home, in -- in Wheat, simply saying that the defendant has the right to counsel of choice unless the trial court has a good reason for saying no, would make this right just like lots of other rights in the Sixth Amendment, the right to self-representation, the right to cross-examination, all the other rights in the Sixth Amendment that can give way for efficiency or integrity concerns. But what the United States is suggesting is something radically different that we submit doesn't exist anywhere else in constitutional law, which is to say that this Court recognizes that a certain right exists, but when it's arbitrarily denied, the defendant simply has no remedy unless he can affirmatively show his own prejudice.
05-352 +++$+++ 40873 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That -- that happens all the time. That happens, for example, in the case of incompetent counsel. There's a right to -- to competent counsel. If you -- if that right is violated, the defendant still has to show prejudice --
05-352 +++$+++ 40874 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It --
05-352 +++$+++ 40875 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- before he'll get relief.
05-352 +++$+++ 40876 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Mr. Chief Justice. The critical difference between this and the right to effective assistance of counsel is the affirmative action by the court. And in Strickland itself at page 686, this Court recognized the Geders -- the Geders decision, the Brooks decision, the Herring decision, which are all accepted by the Solicitor General in footnote 3 of its brief. And the core holding of those cases is when the court interferes with what the defendant wants to do, then a Sixth Amendment violation takes place right then and there, and we don't look at all to whether prejudice took place.
05-352 +++$+++ 40877 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are you -- are you relying at all on the effect that you want the Court's decision to have on trial judges and prosecutors, that is, a judge who knows if he disqualifies a lawyer who shouldn't be disqualified, that there will be an automatic new trial? And the prosecutor who's standing by -- by the way, what did the prosecutor -- did the prosecutor take the position in this case when the judge says, I don't want that lawyer to be in my courtroom?
05-352 +++$+++ 40878 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me answer it both on the facts and on the law. On the facts of this case, there was a pretrial sanction hearing in which the prosecutor showed up unannounced to the defense and actually submitted witnesses and evidence to support the disqualification of Mr. Low. So, yes, the prosecutor did play a part and support the disqualification in this case. Now, to answer your question on the law and the practicalities, we're here today defending the status quo because the rule in every Federal circuit is that on direct appeal if the right to counsel of choice is denied, it's an automatic reversal. So we're -- we're relying on the practicalities of how things work in the lower courts only to the extent to say it's working fine just now, and this Court ought not to upset that. Right now, by our count, you get probably fewer than one case a year in the Federal courts of appeals where a scenario as rare as this arises. And so we think that this Court's incentives, which are put in place by the Wheat case, as I was talking about, get it just right. They get it so that, yes, there's a little bit of hesitance, but on the other hand, trial judges have substantial discretion in making these threshold decisions. And so we submit --
05-352 +++$+++ 40879 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are there cases in the records where it shows government overreaching or bad faith and so forth in trying to get rid of the counsel? That just doesn't happen?
05-352 +++$+++ 40880 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not aware of any case, Justice Kennedy, where an express finding of bad faith is placed on the record. But -- but, of course, that points out one of the -- one of the things about this kind of case is that we just have a record in many ways. What the United States is suggesting is that we should have these satellite collateral proceedings where we have to not just investigate questions like that perhaps, but also recreate an entire trial. And this is much more difficult than the Strickland scenario because, as Justice Alito pointed out, in Strickland we can at least compare the defendant -- the defendant's lawyer's performance against an objective -- an objective counsel. And even -- and it's even easier than that because, because of the performance prong, the first prong of the Strickland test, we winnow out the decisions that lawyer made to probably just two or three. I mean, in this Court's typical Strickland case, it looks at one or two decisions a trial judge -- the trial counsel made. In this context, we'd have to look not just at an entire trial, but at the entire attorney-client relationship from the moment the -- the counsel would have met the defendant, all of the different decisions that might have taken place in terms of investigation, negotiation, strategy before trial, strategy during trial. And what you'd be asking is for this first-choice counsel presumably to take the stand or file some sort of affidavit not saying this is the strategy that would have -- would have necessarily happened because he didn't get to try the case. What -- what you'd be asking this person to do is sort of take the stand and hypothesize what he might have done in all these various situations --
05-352 +++$+++ 40881 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would your -- would your rule --
05-352 +++$+++ 40882 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- with all the problems of hindsight.
05-352 +++$+++ 40883 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would your rule apply in the case of a guilty plea?
05-352 +++$+++ 40884 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I mean, our rule would -- would apply in a guilty plea case, provided the defendant didn't waive it, didn't waive the -- the argument in his guilty plea. But the problem with -- you know, to look at the other side, imagine the -- the case where the defendant's first-choice counsel is disqualified and he does plead guilty and he wants to plead guilty, which, of course, happens in over 90 percent of the criminal cases in the country. There, we have an enormous problem because how is that person supposed to show on appeal what would have happened with his first-choice lawyer? First of all, under the -- under the United States conception, which conflates this -- this right with Strickland, they have the problem of this Court's decision in Hill against Lockhart which holds that a defendant doesn't have an ineffective assistance type claim unless he can show that he wouldn't have pleaded guilty at all but for his counsel's advice. And secondly, we have the problem, once again, of just the crazy kind of predictions that we have start to engage in. We -- I suppose there in a guilty plea case, we have to put the -- the first-choice lawyer on the stand to testify to all the various things he might have done. Then perhaps we have to put the prosecutor on the stand to say, oh, would you have taken the deal if this would have taken place and that would have taken place and the other would have taken place. And -- and what we submit is that not only is -- is this fundamentally improper because once we have a constitutional violation, the only -- the only choices on appeal are Chapman error and structural error, and all of this is outside the record. So it would be impossible to do under Chapman.
05-352 +++$+++ 40885 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Fisher, remind me in bringing up the plea question. I thought one of the reasons why this defendant wanted this particular lawyer is that this lawyer made good bargains with the prosecutor. Was that not so?
05-352 +++$+++ 40886 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is part of the record, Justice Ginsburg. The lawyer that the defendant wanted in this case had appeared in the very same court several months before before the very same judge and stepped in on the eve of trial and negotiated an extremely favorable plea agreement for the defendant in that case. And that's how Mr. Gonzalez-Lopez learned about Mr. Low and that's why he sought him out. I don't think it's a part of the record whether he wanted to plead guilty or whether he wanted to go to trial.
05-352 +++$+++ 40887 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Some of the --
05-352 +++$+++ 40888 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that's certainly one of his considerations.
05-352 +++$+++ 40889 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Some of the concerns about the evidentiary presentation were addressed by the Seventh Circuit and are the reason they adopted a -- a lesser standard than the prejudice standard in -- in Strickland. Why isn't that adequate to meet those concerns?
05-352 +++$+++ 40890 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, for two reasons, Mr. Chief Justice. First of all, the Seventh Circuit, with due respect, simply misconceived the right. It's our fundamental submission here that the right is violated at the moment the trial judge impermissibly disqualifies the counsel, and that's what the Seventh Circuit didn't understand. Once you say that that violates the right, then your only choices, under this Court's jurisprudence -- what it said in Neder was the only two choices are structural error or a Chapman review. The Seventh Circuit, of course, was deciding a habeas case. It had an evidentiary -- it had the ability to compile an evidentiary record, but once you recognize that the Sixth Amendment right to counsel of choice is violated at the moment of the disqualification, then your only choices are Strickland -- I'm sorry -- are Chapman or structural error. The Seventh Circuit way of doing things, which the United States to some degree embraces, of having an evidentiary hearing on collateral review proves the point why we can't say this is subject to harmless error review because we don't have the stuff in the record that we need. And that's what the Seventh Circuit didn't -- didn't -- first of all, it wasn't speaking to it because, of course, it was deciding a habeas case. But it --
05-352 +++$+++ 40891 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What are the -- what are the practicalities or impracticalities, as the case may be, of seeking immediate review from the court of appeals by writ of mandate?
05-352 +++$+++ 40892 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, well, there's -- there's two big problems with what the -- with the United States' position on that point, Justice Kennedy. The first is, I -- I think as -- as came out, if mandamus became too common, it would effectively overrule this Court's Flanagan decision. But there's an even more fundamental problem, which is to say that mandamus is only available when a defendant can show a clear violation of a right. Now, the way the United States conceives the right, there's no violation of the right until you haven't received a fair trial. So imagine the defendant going up pretrial on mandamus and saying, my right to counsel of choice has been violated. The appellate court's response would be, well, we can't decide that. We don't even know whether it's been violated until we see the record that develops in this case and the defense that your -- that your replacement counsel puts on.
05-352 +++$+++ 40893 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think it would be easy for us to make a distinction between the right and the remedy.
05-352 +++$+++ 40894 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm -- I'm not sure you're properly characterizing the -- the Government's position. I mean, you -- you don't have to assert that the right is not violated until -- until there's an unfair trial in order to take the position that the Government takes. I mean, the right -- a lot of rights that are later reviewed for harmless error or for -- to see whether there was prejudice were violated at the time, and not -- not just on the basis of whether there was prejudice or not.
05-352 +++$+++ 40895 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, I think I'm fairly characterizing the Government's position when I say that as a constitutional matter, they say there's no Sixth Amendment violation until we see what happens at the trial.
05-352 +++$+++ 40896 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought they said there isn't if the question is remedied.
05-352 +++$+++ 40897 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that's the way that they're presenting their case, Justice Ginsburg, and this is important because what the Government is saying is the right itself is not violated until we have a breakdown in the adversarial process at trial.
05-352 +++$+++ 40898 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but in all events, we could structure the decision to make -- to make sense, and if these instances happen, as you indicate in your brief, very early, it seems to me that the answer is mandate in a court of appeals.
05-352 +++$+++ 40899 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you -- if you conceived the right as one that you made clear there's a violation at the moment the trial court impermissibly denies counsel of choice, and then perhaps to say -- and then you went on to say there's either an automatic reversal rule or even a Chapman standard, then you could say that there would be a right for mandamus on appeal. But then you run into the same problem of Flanagan. And then -- but if you didn't do that and he said what the United States --
05-352 +++$+++ 40900 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but then you wouldn't -- I'm sorry to interrupt you. But at that point, the defendant would be well advised to go ahead with trial with his second-choice lawyer. Right?
05-352 +++$+++ 40901 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He may well be.
05-352 +++$+++ 40902 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Take his chance and then if he -- if he loses, he gets automatic reversal. So why would he do mandamus?
05-352 +++$+++ 40903 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's right.
05-352 +++$+++ 40904 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, because --
05-352 +++$+++ 40905 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Unless you compel him to seek mandamus on pain of losing the constitutional claim, your -- every incentive is to go right ahead with the trial.
05-352 +++$+++ 40906 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think in the ordinary case, yes, but let me talk about -- let me go back to the facts of this case. I mean, we have a defendant here with only very limited funds. He may decide that I only have enough money to pay one lawyer for one trial, and -- and I don't want to depend on this lawyer's good will or something. I mean, so we're getting down the line to -- to hypotheticals.
05-352 +++$+++ 40907 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't think the mandamus solution works unless you compel mandamus, unless you say you lose -- you lose the claim unless you bring mandamus.
05-352 +++$+++ 40908 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I mean, I think I'll accept that mandamus doesn't work. And Justice Kennedy, even on -- even on this record, if you look at the rule of the Eastern District of Missouri for -- for pro hac vice admission, it's entirely discretionary on its face. And so it's hard to imagine what your mandamus argument would be. And, of course, here the Eighth Circuit just issued a one-word dismissal. So it's our position that for -- not only for the legal reasons of the historical grounding of -- of the right to counsel of choice and the logical reasons with the differences between the government interfering with what the defendant wants to do versus the situation that we have in Strickland where this Court has said that even if -- if the government doesn't do anything at all -- and this Court emphasized in Strickland that -- another difference between Strickland and this case is the -- is that the government is powerless in the Strickland scenario to prevent -- to prevent the constitutional violation. When we have the difference here of the government acting to interfere with the way the defendant wants to --
05-352 +++$+++ 40909 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In the government, you're including the court in that.
05-352 +++$+++ 40910 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. When I say the government, I mean the court or a prosecutor.
05-352 +++$+++ 40911 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's not always true in a Strickland case. It's often the court that's making the mistakes that the lawyer should have objected to and was incompetent in not doing so.
05-352 +++$+++ 40912 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but then those sorts of mistakes aren't necessarily a Sixth Amendment right to counsel arguments, I don't think, Mr. Chief Justice. Those might be different kinds of mistakes. But here, what we're talking about is the court interfering with the right -- the Sixth Amendment right the defendant has. And in the cases that Strickland expressly distinguished and which the United States accepts in footnote 3 of its brief and in the self-representation cases, which -- which recognized that the kernel of the defendant's right is to present -- and this is what the Court said in McKaskle. The core Faretta right is the -- is the defendant's right to present the case to the jury the way he wants to submit it.
05-352 +++$+++ 40913 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, your comment about the defendant running out of a funds is -- raises a good point. So the remedy would be an automatic reversal in a case like that where the defendant would be represented by appointed counsel?
05-352 +++$+++ 40914 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What we have in -- what we have in this case is a lawyer who was retained and who's -- who is willing to go forward under that retainer and in a pro bono sense. So -- so, I mean, even under this Court's --
05-352 +++$+++ 40915 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In this case.
05-352 +++$+++ 40916 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Even under the current -- yes, in this case. Even under the -- even under the current jurisprudence, Justice Alito, you're right. The defendant sometimes may not be able to be put all the way back into the position he -- he would have been. But here, we submit that the lower court's rule of -- of automatic reversal is the proper rule. It's the one that's working, and it's the one this Court should -- should refuse to change today.
05-352 +++$+++ 40917 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How many -- how many circuits are applying that rule?
05-352 +++$+++ 40918 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's roughly -- roughly half the circuits have addressed this issue on direct appeal, and they've all said this is structural error, Justice Scalia. If there are no further questions, I'll submit the case.
05-352 +++$+++ 40919 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Fisher. Mr. Dreeben, you have 2 minutes remaining.
05-352 +++$+++ 40921 +++$+++ FALSE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. Respondent's submission in the Eighth Circuit's holding in this case is fundamentally anomalous in two respects. The first is that it is anomalous when compared to the other rights that this Court has acknowledged protection of under the Sixth Amendment because it accords to a defendant who had the full opportunity to select his counsel and to select a backup counsel the same remedy as a defendant who had no lawyer at all. And it's anomalous factually because a defendant who is deprived of his first-choice counsel may have selected that counsel improvidently, may select his second-choice counsel with much greater care, may obtain a lawyer who is far more competent and far more effective, and all of those things have to be discarded on Respondent's view and the Eighth Circuit's holding and automatic reversal ordered, forcing society to bear the costs of a retrial even when there is no reasonable probability or it is a beyond a reasonable doubt that no lawyer could have made a difference. And the proper accommodation of the values that are at stake in this case is to recognize that some form of prejudice inquiry is appropriate before this Court imposes on the judicial system the extreme consequence of automatic reversal.
05-352 +++$+++ 40922 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, Mr. Dreeben, do you agree with his characterization that all the courts of appeals go the other way?
05-352 +++$+++ 40923 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The Seventh Circuit made perfectly clear in the Rodriguez case that it was rejecting on the merits the view that automatic reversal is warranted. And the view that automatic reversal is warranted largely arose from a misunderstanding of this Court's Flanagan decision in which dictum was quoted as if it were a holding and because the courts failed to triangulate the right in question here with the right that this Court has recognized in the ineffectiveness context and in the conflicts context. Thank you.
05-352 +++$+++ 40924 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
05-380 +++$+++ 40928 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first this morning in case 05-380, Gonzales v. Carhart. General Clement.
05-380 +++$+++ 40930 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Congress held six hearings over four different Congresses and heard from dozens of witnesses in determining that partial-birth abortions are never medically necessary, pose health risks, and should be banned. Under familiar principles of deference to congressional factfinding, those determinations should be upheld as long as they represent reasonable inferences based on substantial evidence in the congressional record. That standard is amply satisfied here. The evidence before Congress was clear that partial-birth abortions were never medically necessary, and that safe alternatives were always available such that no woman would be prevented from terminating her pregnancy. As a result, Congress was entitled to make a judgment in furthering its legitimate interests that they were going Official to ban a particularly gruesome procedure that blurred the line between abortion and infanticide.
05-380 +++$+++ 40931 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ General Clement, couldn't a similar record be made with respect to what is the more common procedure, the D&E, that involves dismemberment of a fetus inside the womb. So assuming you're right that it is constitutional for Congress to ban the D&X proceeding, wouldn't the same reasoning apply, couldn't Congress make similar findings with respect to what is the most common method for second trimester abortions?
05-380 +++$+++ 40932 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Justice Ginsburg, and I think that this Court's precedence, in particular the Danforth case, would stand as an obstacle to that piece of legislation, because in Danforth, this Court struck down an effort to ban what was then the majority method of inducing a second-term abortion. And I think in the same way, there is quite a different situation when Congress comes in and tries to deal with the primary abortion method in the second trimester. Here, though, Congress didn't go after the dog, so to speak, it went after the tail. This very aberrant procedure, atypical procedure. And the numbers are hard to come by, but I don't think anybody suggests that the D&X procedure is anything more than a very Official small minority of second trimester abortions. And so I do think --
05-380 +++$+++ 40933 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even though we are told by some of the medical briefs that the procedures are basically the same, they start out in the same way and that the difference -- the differences are not large in particular cases.
05-380 +++$+++ 40934 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Ginsburg, let me make a couple of points in response to that. I think -- taken at the broader level first, I think there is one very important difference between these two procedures that led Congress to ban one and allow the other to stand. And that is whether fetal demise takes place in utero, which is, of course, the hallmark of all abortions, or whether fetal demise, the lethal act takes place when the fetus is more than halfway out of the mother. Now, as to their suggestion, I think most particularly by Respondents in the second case, that there really is no meaningful difference between those two procedures. And with respect, I just don't think the record supports that. If you look at the record in this case, it's very clear in the district court opinion that you have some doctors, and examples would be Plaintiff's expert, Dr. Creinin, or one of the Nebraska Official Plaintiffs, Dr. Vibhakar. They go in, in each and every case, and try to perform a dismemberment, or D&E, procedure. And because they're trying to perform the D&E procedure, they need to dilate the cervix only modestly. And so Dr. Creinin, for example, his testimony is he only dilates the cervix two centimeters or two and a half centimeters. Now, in contrast, you have other doctors, and here the examples I would point to are two of the Plaintiff's experts, Dr. Chasen and Dr. Frederickson, they, in every single case, set out to perform the D&X procedure. And that has material differences. For example, the dilation regimen that they use. And so Dr. Frederickson, for example, uses multiple sets of laminaria to dilate the cervix, and she gets a much greater degree of dilation, 5 to 6 centimeters of dilation. And of course, not only do they set out to perform different procedures, but they, in fact, perform different procedures. So the evidence here again reflects that Dr. Vibhakar, for example, in 100 percent of the cases, ends up performing a dismemberment procedure, or a D&E procedure. For Dr. Creinin, it's 99 percent. Official Now, by contrast, Dr. Chasen and Dr. Frederickson, when they set out to perform a D&X procedure, they are successful in their objective less often. There are different numbers for different doctors, but it seems that, at most, they can achieve their objective about a third of the time.
05-380 +++$+++ 40935 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, those doctors testified in the congressional hearings or in the Eighth Circuit or Ninth Circuit or the Second Circuit? There are so many doctors here. Which are the two that you're referring to that do not dilate the cervix fully? Did they testify in any of the district court cases?
05-380 +++$+++ 40936 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They did, Justice Kennedy, and in particular, Dr. Creinin is an expert. I think his deposition was taken, or his testimony was taken principally in the California case, but it was introduced in all three cases as part of the evidentiary record. Dr. Vibhakar is one of the Plaintiffs in this particular case. And Dr. Chasen and Dr. Frederickson would also -- their testimony was in the record, I think, in all three cases.
05-380 +++$+++ 40937 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Just from my going through this record, I compare it with Stenhart, with what's in Congress. We have two cases here. And it's a fair conclusion that there are, in each case, before Congress Official and in here, there are some doctors who think this is safe and some doctors who think it isn't safe. And if you look at the -- sort of by counting, by numbers, I guess if you look by lines of testimony or by different doctors, interestingly enough, it seems to me there are more doctors in these two cases and in front of Congress who said it is not safe than there were when we considered the other case. And there are fewer doctors who say it is safe even with the other case. So I don't know if you're supposed to count doctors or what. My question would be, if this -- do we owe more deference to a congressional finding or to Congress than we owe to a State legislature? What is -- I mean, I take it a State legislature is democratically elected, and don't we owe similar deference to both?
05-380 +++$+++ 40938 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Breyer, I think you certainly owe deference to both. I think --
05-380 +++$+++ 40939 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if we owe deference to both, and I would have thought that we did, then I think in the Nebraska case, despite the deference that was owed, the Court came to the conclusion that the statute of Nebraska was unconstitutional because it lacked an exception for the health of the mother, something that came from preceding cases. So if giving Official deference to Nebraska, we reach that conclusion there, and if the deference that is owed is the same, and if the evidence is about the same on both sides, how can we reach a different conclusion here?
05-380 +++$+++ 40940 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Breyer, I mean, obviously I'm at a certain deficit to you in discussing what this Court held in the Stenberg opinion, which you wrote. But my reading of that opinion is that this Court did not focus on what was before the Nebraska legislature. But this Court focused on what the district court found. And in particular, in the critical part of the opinion, which would be Section 2(A) of the opinion, as I read the opinion, what this Court did is it confronted Nebraska's argument that the D&X procedure was not, in fact, safer. And the first thing this Court did is said, well, that argument faces quite a burden, because the district court made a contrary finding. And then this Court in 2(A)(1) of the opinion referenced that finding, and four different times cited the district court record, and then so on and so forth. It then noted the various eight arguments were made by the State in its amici to the contrary. And as I read the opinion, it basically said the latter, the objections don't outweigh the former, the findings. Official Now, I think if you compare the record before the courts and before Congress, compare that to what was before the district court in Stenberg, I think there is a much more robust factual record here. If you look at the Stenberg case --
05-380 +++$+++ 40941 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ General Clement, are not some of the findings by Congress clearly erroneous? For example, there is a statement that no current medical schools provide instruction in the procedure. Now that's clearly wrong, isn't it?
05-380 +++$+++ 40942 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I mean, specifically what Congress found in that finding was that none of them provided it as part of a curriculum. And I think what the record here clearly reflects -- you know, I don't know that the idea of a curriculum -- I don't know exactly what Congress had in mind. But clearly, is a matter of sort of what you teach residents --
05-380 +++$+++ 40943 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think that finding is correct?
05-380 +++$+++ 40944 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know if it's correct, based on the curriculum.
05-380 +++$+++ 40945 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Supposing there was a lot of evidence introduced in the district court that there were schools like Yale and New York University that did include this as part of a curriculum, could the district Official court disregard that finding and make a contrary finding?
05-380 +++$+++ 40946 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think if the evidence in the district court were overwhelmingly to the contrary, I think that the district court could effectively undermine that one finding. I don't think in this case anything turned --
05-380 +++$+++ 40947 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, on other findings, is there a different standard of review of what the district court found as opposed to what Congress found?
05-380 +++$+++ 40948 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Stevens, I would answer you this way. You might first want to isolate those situations where, if the district court was addressing something, an issue that just wasn't before Congress at all, but it's somehow relevant, and makes factual findings, I suppose the district court is entitled to the normal kind of deference on review. But I think if you have situations, which you have in this case, where the district court heard some of the same witnesses who testified before Congress and before the district court, and the district court makes a different credibility finding than the Congress made, I don't think that's a basis for the district court to be able to overcome the contrary findings of Congress. Official
05-380 +++$+++ 40949 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I don't understand Congress to have made credibility findings. As I read the -- I read the whole finding. There were six or seven pages of findings, and I don't find a single reference in those findings to the performance of an abortion on a nonviable fetus. All of the language in the findings seem to be referring to viable fetuses just inches away from becoming a person. And I don't think you can even find the word fetus in those findings. The findings as opposed to the text of the statute.
05-380 +++$+++ 40950 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure, Justice Stevens, I think I need to clarify an important point there, which is to say, the statute didn't focus on viable versus nonviable, because it applies to both sides of the viability line.
05-380 +++$+++ 40951 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm talking about the findings. Is there a single word in the findings that refers to a viable fetus? It maybe refers to a nonviable fetus.
05-380 +++$+++ 40952 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think there is, Justice Stevens, but I wouldn't find that at all remarkable in a statute that applies and bans certain procedures without regard to whether the procedure is applied to a viable or nonviable fetus and when Congress does make specific findings that the procedure Official it's banning would have the effect of preventing a lethal act on a fetus just inches from being born. It's not --
05-380 +++$+++ 40953 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I interrupt?
05-380 +++$+++ 40954 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure.
05-380 +++$+++ 40955 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's not preventing the lethal act, it is requiring that the lethal act be performed prior to any part of the delivery, because there is no doubt there will be a lethal act. The only issue is when it may be performed.
05-380 +++$+++ 40956 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The issue is whether --
05-380 +++$+++ 40957 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
05-380 +++$+++ 40958 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Because the issue is to whether it's going to be performed in utero, or when the child is more than halfway outside the womb, and that of course --
05-380 +++$+++ 40959 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Whether the fetus is more than halfway out, and some of these fetuses I understand in the procedure, are only four or five inches long. They are very different from fully formed babies.
05-380 +++$+++ 40960 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, again, you're right.
05-380 +++$+++ 40961 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ When it's halfway out, I guess you can call it either a child or a fetus. It's sort of half and half isn't it? Official
05-380 +++$+++ 40962 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think you could use either terminology, Justice Scalia. My point is, nothing turns on the terminology. I mean, the terminology that Congress chose to use is a living fetus. I think the point, though, is that when fetal demise is induced in utero, whatever else you think about that procedure that is classically an abortion, as it has been always understood. But when fetal demise is induced when the, when the living fetus is over halfway outside of the womb, then I think Congress --
05-380 +++$+++ 40963 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Wouldn't the fetus be -- I think it suffer a demise in seconds anyway.
05-380 +++$+++ 40964 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well it may be seconds, it may be hours; it depends on -- because even a pre --
05-380 +++$+++ 40965 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you not agree that it has no chance of survival, in most cases?
05-380 +++$+++ 40966 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If we are talking about previability then by definition chances are it won't survive.
05-380 +++$+++ 40967 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, that's right.
05-380 +++$+++ 40968 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But again, I don't think that, you know, that anything in this act --
05-380 +++$+++ 40969 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Congress has made the judgment that it is far preferable to ensure that fetal demise takes place before any delivery begins. That's Official the big issue.
05-380 +++$+++ 40970 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'm not sure if it's whether, that's a fair, that's a fair summary. I mean, you know, the line isn't that fetal demise has to be done before any delivery begins, but the basic point of this statute is to draw a bright line between a procedure that induces fetal demise in utero and one where the lethal act occurs when the child or the fetus, whichever you want to call it, is more than halfway outside of the mother's womb.
05-380 +++$+++ 40971 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would it, would it be lawful or would it be infanticide to deliver the fetus entirely and just let it expire without any attempt to keep it alive?
05-380 +++$+++ 40972 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in the postviability context it would clearly be, it would clearly be infanticide. I think in the previability context, if you have a complete delivery but the child isn't going to survive, I don't think it would be infanticide to necessarily let the child expire --
05-380 +++$+++ 40973 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. --
05-380 +++$+++ 40974 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I do think by contrast if somebody tried to, with the fetus, you know, perfectly alive and in the hours that it might have to live, if somebody came in and ripped its head open, I Official think we'd call that murder, and in fact Congress passed another statute --
05-380 +++$+++ 40975 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ General Clement, that's not what this case is about, because I think you have recognized, quite appropriately, that we're not talking about whether any fetus will be preserved by this legislation. The only question that you are raising is whether Congress can ban a certain method of performing an abortion. So anything about infanticide, babies, all that, is just beside the point because what this bans is a method of abortion. It doesn't preserve any fetus because you just do it inside the womb instead of outside.
05-380 +++$+++ 40976 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsberg, that's right, but I don't think that's to trivialize Congress's interest in maintaining a bright line between abortion and infanticide. And the way I would illustrate it is that line, even if you might think it has a temporal line, in the sense that viability versus previability is relevant, it clearly has a spatial dimension as well and the best illustration of that I think is think about a lawful postviability abortion. There is a problem with the mother's health, there is a problem with her life so it's a lawful postviability abortion. I don't think anybody thinks that the law is or should be Official indifferent to whether in that case fetal demise takes place in utero or outside the mother's womb. The one is abortion, the other is murder. And I think that just recognizes that even in the postviability context you have a very important line which is a spatial line, and that line is basically in womb, outside of womb, and what Congress tried to do in this statute is to draw that line and differentiate between one procedure where fetal demise takes place in utero --
05-380 +++$+++ 40977 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if this case were limited to postviability abortions it would be a different matter. But isn't it so that the vast majority of these abortions are going to be performed previability?
05-380 +++$+++ 40978 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's probably right, Justice Ginsburg, but I think the point I would make is that Congress has an interest in maintaining the spatial line between infanticide and abortion, even with respect to previability fetuses and that's true for at least two reasons.
05-380 +++$+++ 40979 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If -- I see what you're driving at in terms of the procedure. We are focusing on a universe where the fetus is not going to survive no matter what, right? Official
05-380 +++$+++ 40980 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-380 +++$+++ 40981 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay. So we are not talking about anyone being born and living. They are not going to.
05-380 +++$+++ 40982 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, with the caveat that the statute does apply both --
05-380 +++$+++ 40983 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that's the area of focus.
05-380 +++$+++ 40984 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-380 +++$+++ 40985 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now, Congress has said that -- the doctor, you can achieve that result through method A, but not through method B, and you're saying Congress had good reason for doing that. I take it Congress also agrees that if method B, which they don't want, were to be necessary for the safety or health of the mother, the Constitution would require it being done. I didn't see anything here about Congress disagreeing with that.
05-380 +++$+++ 40986 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, I think that's right, Justice Breyer. I think this, Congress --
05-380 +++$+++ 40987 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. If that's right --
05-380 +++$+++ 40988 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- took this Court's Stenberg's decision as a given --
05-380 +++$+++ 40989 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right. Fine. Okay. They make a finding that although we don't disagree with Official that, we don't think it's ever necessary for the health or safety of the mother. That's where we are. Now as I look at the record, I see many, many, many doctors telling Congress and everybody else that it is necessary, and safe. And I see other doctors telling Congress primarily, but in court, too, that it isn't necessary, ever for safety. And so if medical opinion is divided, and I'm not advocating what I'm about to say, I just want to know your reaction. If medical opinion is divided, why wouldn't it be up to this Court or could this Court say this use of this procedure, we enjoin the statute to permit its use but only where appropriate medical opinion finds it necessary for the safety or health of the mother? Now, if Congress is right, there will be no such case so it's no problem. But if Congress is wrong, then the doctor will be able to perform the procedure and Congress couldn't object to that because the Congress isn't worried about, I mean Congress, then Congress was wrong. They agreed that we had a health or safety exception.
05-380 +++$+++ 40990 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect, Justice Breyer, here is the problem with that way of approaching the statute. That might be a permissible way of Official approaching it if what the evidence on the other side was, that well you know there are cause-specific reasons why you need this procedure. There are particular conditions where you need this procedure. But that's not the evidence on the other side. What their doctors say, the doctors who perform this D&X procedure, the Dr. Chasens, the Dr. Fredericksons, what they will tell you is that every single case the D&X procedure is better and safer and they want to do it. And so it doesn't make, I mean Congress can't pass a statute that bans procedure A, and that ban doesn't apply any time a doctor prefers procedure A.
05-380 +++$+++ 40991 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. It just wouldn't be a question of the doctor's preference. You would have to refer back to prior cases, and what the prior cases talk about including Stenberg is not that that the doctor simply has a preference, but rather that there has to be a significant body of medical opinion that says that this is safer procedure and necessary for the safety of the mother. Now, where that's true, the Court has previously said that the Constitution protects the right. And I don't see anything in what Congress says that wants to change that law. They simply have a different view of the facts. Official
05-380 +++$+++ 40992 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they do have a different view of the facts. And I guess the question --
05-380 +++$+++ 40993 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So if they have a different view of the facts, why can't we leave it up to whatever facts develop? If there is an appropriate body of medical opinion that does in fact believe this is necessary for the health of the mother, so be it, and the abortion could be performed and the injunction would say that.
05-380 +++$+++ 40994 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think --
05-380 +++$+++ 40995 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And otherwise not.
05-380 +++$+++ 40996 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If this Court rejects the facial challenge to this statute it is still going to be open for litigants in the future to try to identify specific conditions where this procedure is the safer alternative.
05-380 +++$+++ 40997 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can you tell me a hypothetical instance in which where an as applied challenge could be brought if we sustain the statutue on its face? The procedure has to take place within 24, 48, 72 hours. How would as applied challenge take place? You know, I read all the doctors' testimony in this case, hundreds of pages, and I'm familiar with the area generally. But it takes a while to get up to Official speed. I don't know if you could just go to a district judge and say I need an order, the judge would take -- would have to take many hours to understand that.
05-380 +++$+++ 40998 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, what I think I have in mind principally would be a preenforcement challenge that was an as applied challenge. And what I have in mind, you know that's something that there is in other areas of the law, Steffl against Thompson is an example. But what you would have in mind is a doctor who had standing under this Court's abortion jurisprudence would come in and say, look, in my practice I've seen that this procedure would be particularly useful in dealing with preeclampsia or placental previa or some condition.
05-380 +++$+++ 40999 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why isn't that already in the record in the Ninth Circuit, in the Second Circuit and in the Eighth Circuit, in the district courts, proceedings in those circuits?
05-380 +++$+++ 41000 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there is an effort to make that showing. I don't think that it's been a successful effort to make that showing. In fact I think if you look at the findings of the district courts in these cases, two of the three district courts found that there was no particular condition where the D&X abortion was medically necessary or had marginal safe benefits -- Official safety benefits. In this case, the Nebraska case, the district court identified only two conditions, preeclampsia combined with maternal cancer, and placenta previa. And as to those particular findings as we point out in our reply brief, there are problems with each of those findings.
05-380 +++$+++ 41001 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ General Clement, I'm just thinking, trying to imagine how an as applied challenge would be really much different from what we have seen already.
05-380 +++$+++ 41002 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think, I mean, they've challenged everything including every application of the statute and they've tried to pick off some particular conditions. What I'm imagining is in the future you might have, you might have additional evidence, you might have additional experience with doctors, and they might come in and target their challenge to particular conditions and try to say --
05-380 +++$+++ 41003 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But General -- General Clement, conditions don't show up in the abstract. Wouldn't it often be the case that it depends on the vulnerability of the particular patient and you couldn't bring a preenforcement challenge as to that. Maybe it's a question of hemorrhaging, that -- it's a combination of what the condition is and the Official vulnerability of the particular patient and I don't see how that could be tested in advance.
05-380 +++$+++ 41004 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Ginsburg my understanding is even when you talk about an idiosyncratic condition, I mean, the doctors who perform these abortions perform, you know, hundreds of them a year and they can identify those conditions and they have names for those conditions and I think it would be amenable to bringing a more as applied challenge.
05-380 +++$+++ 41005 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ General, do you understand the scope of this statute to be different than the scope of the statute at issue in Stenberg, focusing in particular on the deliberate and intentional language?
05-380 +++$+++ 41006 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I certainly do, Mr. Chief Justice, and I think that this statute, unlike the Nebraska statute, clearly uses an anatomical landmark approach that is based in the text of the statute and clearly distinguishes between the D&E procedure on the one hand and the D&X on the other hand.
05-380 +++$+++ 41007 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But isn't it quite independent of the anatomical approach that the health exception is denied? I mean that's an -- that does not depend on the anatomical approach. The anatomical approach may well be an answer at the facial Official challenge stage, to problems of vagueness, for example. But the health excepton problem is not affected by that. And the difficulty that I have with your argument that somehow the health exception issue should be left to an as applied challenge is the statement in Stenberg, and it's on 938. I'm quoting: "But where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health, Casey requires the statute to include a health exception where the procedure is necessary in appropriate medical judgment for the preservation --" -- excuse me -- "of the life or health of the mother." Now, your position, it seems to me, requires us to do one of three things. Either we, we overrule Stenberg in that respect, or we, we find -- I don't know how but we might find, well, in this case, there is no substantial medical authority, and therefore on the face of the statute there seems to be no impediment in the Stenberg statement. Or three, we say well, there seems to be a tension between the showing of substantial medical authority which occurred in the litigation in these cases and the findings made by Congress, and under those circumstances in effect we are required to ignore the record in the cases and go with Congress's Official apparently contrary judgment. Which of the three do we take?
05-380 +++$+++ 41008 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we would urge you to take any one of them.
05-380 +++$+++ 41009 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Take all three. (Laughter.)
05-380 +++$+++ 41010 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but seriously --
05-380 +++$+++ 41011 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But in fairness, I mean, you know, we have an obligation to defend the statute. So our first, you know, our first effort would be to say we distinguish the --
05-380 +++$+++ 41012 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay, but the problem, I guess -- focus the problem this way. The, the Stenberg opinion talks about substantial medical authority as triggering this requirement for a statutory element. That problem is not focused simply by saying Congress made some findings and the district court made other findings and Congress should prevail. The fact is the substantial medical judgment finding I would suppose is satisfied by the, by the record in the district courts in these cases. This is not one doctor's idiosyncratic judgment and a court can reasonably find, it seems to me, that there is substantial medical judgment. If we are going to defer, as you say we should defer to Congress, haven't we got Official to overrule that statement?
05-380 +++$+++ 41013 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Justice Souter. Let me just -- I'd like to save some time for rebuttal, but let me try to answer it this way, which is our way of looking at Stenberg is Stenberg really doesn't address what you do when there are congressional findings. And there is some tension between Stenberg and Turner on this, because Stenberg seems to suggest, well, when there is a doubt, the kind of doubt that would normally get you past a summary judgment, you defer to the doctors, and Turner seems to suggest when you have a doubt, conflicting evidence, the kind of doubt that might get you past summary judgment normally, you defer to Congress. And it has to be one or the other. It can't go both ways, can't go opposite ways, and we would say resolve that tension, but when there is congressional findings, something that you obviously didn't have to confront in Stenberg, defer to the congressional approach. If Stenberg means something contrary, that even in the face of congressional findings that you have to defer to a minority opinion of doctors and, you know, kind of invert what would normally be the way of approaching it, we think then that would be inconsistent with this Court's decision in Casey, among others, and Official you should revisit Stenberg to that effect, to that extent. Thank you.
05-380 +++$+++ 41014 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General. Miss Smith.
05-380 +++$+++ 41016 +++$+++ FALSE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice and may it please the Court: The Government throughout this case has quarreled with the plaintiff's statement of Stenberg and Congress quarreled clearly with the district court findings, but their real argument here is with this Court in the Court's ruling in Stenberg, particularly in light of the congressional findings that are, that are frankly unsupported by either the congressional record or the additional evidence presented to the district courts. The only course here that preserves the independence of the judiciary, that exemplifies the importance of stare decisis, not to mention the only course that will protect women from needless risks of uterine perforation, infertility, sepsis and hemorrhage, is to hold this act unconstitutional.
05-380 +++$+++ 41017 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can you tell me -- I didn't find it in the materials. Maybe the statistics Official aren't available. In the cases where intact D&E or D&X are performed in the period I guess, what, 16 through 20, 21st, 22nd weeks, in how many of those instances, do you have any idea, in how many of those instances is there serious health risk to the mother that requires the procedure as opposed to simply being an elective procedure? Are there any statistics on that?
05-380 +++$+++ 41018 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. In terms of the underlying medical conditions there really aren't, Your Honor, and it varies dramatically according to the practice of the physician. If a physician is in a high risk OBGYN practice, he or she is much more likely to encounter patients with serious underlying medical conditions such as the ones that the doctors have testified about in this case, the liver disease, kidney disease, heart, cardiovascular disease, cancer of the placenta, bleeding placenta previa, all of these issues and underlying conditions that makes the impact and the risks that are reduced by the intact D&E particularly important.
05-380 +++$+++ 41019 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We have no evidence either in the record before the Court or Congress as to how often that situation arises?
05-380 +++$+++ 41020 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, we don't, Your Honor. We know that in some practices it's quite frequent, in some practices it's not as frequent because those are mostly Official hospital-based practices. But on the other hand, there's extensive evidence in this case, much more evidence frankly, Your Honor, Justice Breyer, than there was in the Stenberg case, of the, of the --
05-380 +++$+++ 41021 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I have just one other question that, it's generally related to the first. If there is substantial evidence that other procedures or alternate procedures are available, alternate to D&X, alternate to intact D&E, is your response that, although they're available as a matter of science, as a matter of, of medical expertise, they are not available because hospitals don't allow the patients to be admitted? I was going to ask that same question to the Government, because there is some indication in the record that certain hospitals just don't admit patients for this purpose, which is -- goes back to my earlier question. I was wondering if that's because it's surely elective.
05-380 +++$+++ 41022 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because it's what sir?
05-380 +++$+++ 41023 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because it's purely elective and not medically necessary.
05-380 +++$+++ 41024 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. Hospitals, many, many hospitals throughout the United States refuse to provide any abortions whatsoever as just a blanket rule. There are some that will provide abortions in certain, in certain circumstances where the woman is Official obtaining the abortion because of a certain medical condition. Then there are women who are obtaining an abortion because they have chosen that that's the best course for them who also have underlying medical conditions. So if you're a woman who has chosen to obtain an abortion and you have an underlying cardiac disease, for example -- we had a case like this in Louisiana. The hospital refused to do the abortion because her chance of dying from the underlying medical condition was not over 50 percent. So the availability of hospital services is somewhat unrelated to this case, but it is, it is quite limited in some circumstances.
05-380 +++$+++ 41025 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it might be related in the sense that the Government's argument that there are alternate mechanisms is not a practical alternative. I was going to ask the Government about that. On the other hand, the fact that any number of hospitals don't allow the procedure is also indicated, indication that there is a medical opinion against it.
05-380 +++$+++ 41026 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, not at all, Your Honor. The medical opinion in those cases is against abortion whatsoever and a refusal to use one's facilities to provide any abortion --
05-380 +++$+++ 41027 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So in terms of --
05-380 +++$+++ 41028 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of any kind, not about any Official particular procedure. I'm sorry, Justice Breyer.
05-380 +++$+++ 41029 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I didn't like your characterization and the Government's of the state of the record. I asked my law clerk basically to go look up every statement that was made in four forums. The first was the first Stenberg case. Second was Congress. Third is this, one of the cases here; and the fourth is the other case here. Now, my own impression of that is if you're talking about the medical need for such a case, that is for intact D&E, that there is a risk attached if you don't use it in some instances. The fewest number of statements for that proposition was in the first Stenberg.
05-380 +++$+++ 41030 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-380 +++$+++ 41031 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ More statements in Congress, more statements that you -- doctors who say, I need this procedure for safety.
05-380 +++$+++ 41032 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are many more in this --
05-380 +++$+++ 41033 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There are many more in this case than there were -- in these two cases there are many more than there were in Congress and in Congress there are many more than they were in first Stenberg.
05-380 +++$+++ 41034 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
05-380 +++$+++ 41035 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now, if we look to the Official other side of the coin, the doctors who say, no, it isn't safe, there I'd have to say there are probably many more in Congress than there are -- who say it isn't safe, there are probably many more in Congress; and then there are some in these cases, too; and there are hardly any in Stenberg, not too many.
05-380 +++$+++ 41036 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there is --
05-380 +++$+++ 41037 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It was against you, in other words.
05-380 +++$+++ 41038 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are many letters written to Congress that are in the record. In terms of live witnesses, Your Honor --
05-380 +++$+++ 41039 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
05-380 +++$+++ 41040 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- there were in Congress eight live witnesses that testified.
05-380 +++$+++ 41041 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right, so I'm left with a record where I guess you have a subjective characterization that there is at least as much evidence in these cases supporting you and as much in Congress supporting you as there was in the first Stenberg case. But Congress made this finding, so what am I to do with the finding?
05-380 +++$+++ 41042 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. Well, the important point, Your Honor, is that even if the Court applied the highest level of deference under Turner, the findings Official would be rejected and must be rejected, as all three district courts held, because they're simply unreasonable even under a Turner standard.
05-380 +++$+++ 41043 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Ms. Smith, was the statement of the American College of Obstetricians and Gynecologists before Congress?
05-380 +++$+++ 41044 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, it was, as was the brief that was filed, the amicus brief that was filed in this case in Stenberg was before Congress, and also testimony from numerous physicians in the form of letter. In terms of live witnesses, there were simply not that many.
05-380 +++$+++ 41045 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We'll give you an extra 30 seconds. Proceed.
05-380 +++$+++ 41046 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's fine, Your Honor. I've lost track of my train of thought, though, I think. I think what I was saying was there were eight witnesses who testified live.
05-380 +++$+++ 41047 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ My question basically I think you might have been going after is, I was saying that I agreed with you in that there is more evidence supporting your side in these cases than there was before Congress, than there was in first Stenberg.
05-380 +++$+++ 41048 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-380 +++$+++ 41049 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But still there was a Official finding in Congress and there wasn't a finding in the Nebraska legislature, and so does that fact of the finding being in Congress and not in the Nebraska legislature -- what kind of legal difference does that make?
05-380 +++$+++ 41050 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And Your Honor, what I would say in this case, it makes none. While it's an extremely interesting academic question about the level of deference that should be applied in this kind of circumstance, here it really is academic because under, even under the Turner standard, if applied in a way that Turner actually applied deference, to carefully review the findings in light of the evidence in Congress and again in light of the evidence in the district court --
05-380 +++$+++ 41051 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask you this question about what you think we should do. If I thought the evidence did support the conclusion that it's never medically necessary, it merely -- the evidence merely supports the proposition that a doctor has to be a lot more careful if he goes one way rather than the other because there are more risks involved in one procedure rather than the other, would that be sufficient to support the -- I can see the argument that the intact delivery may have less risk of complications and so forth without it not necessarily being absolutely Official necessary.
05-380 +++$+++ 41052 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think there is, there's been some confusion about the word "necessary" and it's been used sometimes to talk about whether there are other procedures that could be used, as opposed to the determination that it is the safest procedure that reduces significantly the risk of very serious complications, not the risks of minor complications.
05-380 +++$+++ 41053 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I guess that gets back to the point earlier. I mean, do you agree with the discussion earlier that this act is not going to prevent abortions?
05-380 +++$+++ 41054 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, not at all, Your Honor. I -- the issue of the scope and breadth of the law is -- I think the evidence clearly shows that this is a very broad law that applies to D&E abortions and, contrary to what the Solicitor General said about the intent of abortions, abortion providers like Dr. Vibhakar and others, they actually, their intent is always to remove the fetus as intact as possible, and the district courts have recognized that as an intent that's covered under the terms of the act.
05-380 +++$+++ 41055 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What degree of marginal impact on safety do you think is necessary to override the State's interest? I mean, if you have Official complications under the D&E procedure in say 10 percent of the cases, complications under D&X in 9.99 percent of the cases, is that marginal benefit in safety enough to override the State's articulated interest?
05-380 +++$+++ 41056 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe a marginal benefit in safety is enough and I don't believe that's what we have here. The testimony from over, from at least 11 board-certified OBGYNs, from the American College of Obstetricians and Gynecologists, is that the reduction in risk is significant and that it reduces the risk of serious complications, such as uterine perforation, which can lead to hysterectomy and infertility.
05-380 +++$+++ 41057 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I thought your submission earlier was that we don't have any record evidence about how often the complications arise, so it's hard to get a handle on exactly what the difference is in terms of safety under your submission.
05-380 +++$+++ 41058 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't have a quantification of the safety. What we what we have is the clinical experience of major leading physicians in the field, who've testified that they've used both procedures. In fact, many of them have testified that they perforated uteruses in non-intact D&Es and they've never perforated a uterus in an intact D&E. And that in fact is borne Official out by the Chasen study, a very small study with very small numbers, but it shows all the serious complications are in the non-intact group.
05-380 +++$+++ 41059 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If we could go back to the first question that the Chief asked you, you said yes, it will prevent abortions because of this uncertain line between the D&X and the D&E. Is there a way that Congress could have written the statute that would have insulated the physician who's performing a D&E?
05-380 +++$+++ 41060 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Your Honor. I think that the blueprint that this Court laid out, that certainly is suggested in Justice O'Connor's concurrence in Stenberg, was rejected by Congress. She references three statutes, that if they had included a health exception, she thinks would have been constitutional. They all include the word intact. I think there's another narrower construction of the act too that is possible. Adding in the word intact, reading in the word intact, it seems to me, is not a reasonable interpretation of the statute as it is, but certainly Congress could have done that and other States have done it, but Congress set out not to do that.
05-380 +++$+++ 41061 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask you to focus on one particular problem that I think is implicated by Official Justice Ginsburg's question. If I understood you correctly a moment ago, and I think this is in your briefs too, you said that the definitional problem is that doctors always set out to do an intact procedure if they can, because it involves less risk to the mother from, from acts performed inside. And if that's the case, then it would be, I guess in the real world, very difficult for Congress to define a difference between D&E and D&X, because the intention is always, as you understand it, to have an intact result. Your brother on the other side, the Solicitor General says there certainly is testimony to the effect that that is not so. That doctors who intend to perform a D&E simply intend at the beginning to have a lesser degree of dilation which will force them to do the D&E and not have a totally intact procedure. Would you comment on what I think is the factual difference between you and the Solicitor General there?
05-380 +++$+++ 41062 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. The -- the problem with the law is that because it's not limited to intact, it would in fact cover the procedures that are performed by physicians who intend to perform a procedure as intact as possible but simply don't expect that. Official
05-380 +++$+++ 41063 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I understand that.
05-380 +++$+++ 41064 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-380 +++$+++ 41065 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But could you start simply with the factual predicate for your argument and his argument. You seem to be starting from, if I understand the two of you correctly, you seem to be starting from basically different factual assumptions. Could you, could you start by commenting on that?
05-380 +++$+++ 41066 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. The doctors perform the same dilation protocols whether they are going to perform a D&E or an intact D&E, and that's true for Dr. Chasen and Dr. Westhoff, who performed both intact and non-intact procedures.
05-380 +++$+++ 41067 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought the evidence was that you're looking for a different degree of dilation if you're intending to perform D&E than if -- and you're looking for a greater degree if you're intending to perform a D&X.
05-380 +++$+++ 41068 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It doesn't play out that way. Doctors do have different dilation protocols, but they are often looking for as much dilation as they can get. On the other hand --
05-380 +++$+++ 41069 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is your submission that there aren't different dilation protocols if you're intending a D&E and if you're intending a D&X, they're Official the same?
05-380 +++$+++ 41070 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It varies by doctor. For example, Dr. Carhart uses the same dilation protocol whether he's going to do an intact or a non-intact. Other doctors might try to do more dilation. And the doctors, importantly, can't control the amount of dilation they get, so a decision happens.
05-380 +++$+++ 41071 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, they may not be able to control it in an absolute sense, but can't they go about it in a way that would tend to produce less rather than more dilation?
05-380 +++$+++ 41072 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not --
05-380 +++$+++ 41073 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It can't guarantee results, but couldn't they at least start with a, I don't know how you put it, a procedure that would be likely to produce less rather than more, and hence come within the safe harbor, if you will, of the statute?
05-380 +++$+++ 41074 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they are always looking for a minimal amount of dilation. Then people who chose to do another day of dilation, for example, that could add additional dilation. But for the first day of dilation, no, Your Honor. They don't seek more or less over one day. They might do a second day or --
05-380 +++$+++ 41075 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, you say they don't, but my question is, can they? And the record may not Official show this. I'm not asking you to answer the impossible, but do we have evidence that would indicate that they can or that they can't?
05-380 +++$+++ 41076 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not in the first day of dilation, no. They can't control how much dilation is going to occur. They need a minimal amount and they are not going to shoot for less than that.
05-380 +++$+++ 41077 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can you tell us where to look in the record for the evidence on that?
05-380 +++$+++ 41078 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Each doctor testifies about their own dilation protocols, Your Honor, and I believe that's in the Eighth Circuit appendix. Those -- those -- portions of that testimony, and are cited more specifically in the Eighth Circuit briefs, which goes more into the factual detail, Your Honor, but I don't have the cites right now. I'm sorry.
05-380 +++$+++ 41079 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If there were a health exception --
05-380 +++$+++ 41080 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-380 +++$+++ 41081 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The health of the woman, would that obviate the vagueness and overbreadth problems that you bring up? Because then after we say to the doctor, you put the health of your patients first and if you think that it's riskier for her health to do it one way than another way, then you pick the safer way. Official If you had that, then wouldn't the concerns about overbreadth fade?
05-380 +++$+++ 41082 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not if this is not limited to intact, Your Honor, because then you would be limiting D&E abortions, which is 95 percent of all abortions, to circumstances where the doctor could prove that it was in fact the safest procedure. And we've had doctors testify in trial, for example, that they refused to describe even intact -- regular D&Es to their patients because they believe induction is always safer. So those doctors, I think would still be at risk, and it would put 95 percent of second trimester abortions at risk in that case, to prosecution for performing a D&E when you should have been performing an induction procedure.
05-380 +++$+++ 41083 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think the, on the same issue I think, that the addition of the deliberately and intentionally language in the congressional act addresses that concern?
05-380 +++$+++ 41084 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, because actually that same language is in the Stenberg, the Nebraska statute. It also was targeted at deliberately intentionally. I do think that if there is a construction that would narrow the law to a limited amount of intact D&Es, if you read the "for the purpose Official of" language in the statute, to be performing an overt act for the sole purpose of completing delivery, then -- or rather -- I'm sorry. For the purpose of performing an overt act that causes fetal demise, that does not facilitate delivery of the statute -- of the fetus.
05-380 +++$+++ 41085 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's what I was wondering, because --
05-380 +++$+++ 41086 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry.
05-380 +++$+++ 41087 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose, this might help, suppose the physician testifies that I wanted to do a non-intact, an in utero D&E, that that's, that was my intent, that's what I wanted to do, that's what I always want to do. In this case I had an intact delivery and had no other choice. Are you saying that we could interpret the statute to say that that is not the prohibited criminal intent, he is immune from prosecution in that case?
05-380 +++$+++ 41088 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I don't believe that's the line that could be drawn, Your Honor, because anyone who does a D&E is intending to remove the fetus as intact as possible, and always can have the intent to go to the anatomical landmark that's here. I'm suggesting a different interpretation that uses the "for the purpose of" language where it says for the purpose of performing an overt act that the person knows will kill the Official partially delivered living fetus. If that language was interpreted to be for the sole purpose of performing fetal demise at that point, rather than what the doctors do, which is perform the action that causes fetal demise in order to facilitate delivery of the fetus. So if it's not to facilitate delivery of the fetus --
05-380 +++$+++ 41089 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, give me one instance in which your proposed interpretation would work in the real world.
05-380 +++$+++ 41090 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there are allegations in the Congressional Record, for example, in reference -- in Justice Thomas' dissent by Nurse Schaffer, Dr. Pamela Smith, about circumstances where the physician actually holds the fetus in the woman's body in order to cause fetal demise, rather than causing fetal demise because it's an integral part of removal of the fetus from the woman's uterus. And those circumstances would be banned under that interpretation. But I want to get back to the Turner point, if I may for a minute, the issue of deference to congressional finding.
05-380 +++$+++ 41091 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, just on that last point, I mean, we are interested of course in different interpretations, but it just seems to me that your interpretation would have very little practical effect. Official
05-380 +++$+++ 41092 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it would -- it would ban certainly a certain type of intact procedure that was discussed, and I think is the image many people have of "partial-birth abortion" frankly, that this is something that's done gratuitously, not as an integral part of making this procedure the safest for the woman, and avoiding instrumentation and avoiding perforation and hysterectomies, which are serious complications that though rare, when they occur, they are catastrophic and life changing and disastrous. So the numbers are not high of any complications, but the complications when they occur are, are devastating. And this is what the doctors are experiencing when they perform intact D&Es, that they are not having these types of complications. So -- if I can move to the deference point, I would like to talk a little bit about deference to congressional findings because there is significant authority from this Court of course, saying that where there are danger signs of constitutional risks, as the Court recently said in Randall versus Sorrell, that the Court must independently and carefully review congressional findings. And the Court has rejected findings that attempted to change either by findings of fact or legal findings, that attempted to change a constitutional standard. Official But in any case, the findings in this case are simply unreasonable and not supported by the evidence. If you go to the findings themselves, the ultimate finding in 14o, which claims that it is actually relying on the preceding findings, it says, "for these reasons, Congress finds that partial birth abortion is never medically indicated," and then you go backwards and look at the reasons. The reasons are the findings that are not defended by the Government, that were not defended by the Government witnesses and that are blatantly false, except for perhaps one of them. There are findings of, that partial-birth abortion poses serious risks. The Government witnesses agreed that this was not true. Their findings that partial-birth abortion is not taught in medical schools. Of course, we know that is simply not true, it's an integral part of abortion training at major medical institutions like Cornell, Columbia, Yale, NYU, Northwestern, etc. It says that abortion, partial-birth abortion is a disfavored practice among abortion providers. That is absolutely not true. And it says that there are no comparative studies. We know now that is not true because the Chasen study has come out, and is the first study of its Official kind to try to evaluate the differences between intact and non-intact. It is still true that there are no controlled studies, there is no randomized clinical trial, but if that were the standard, no new and safer abortion procedures could ever be developed. Turning back, Your Honors, to the health issue.
05-380 +++$+++ 41093 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could I ask you just one thing?
05-380 +++$+++ 41094 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-380 +++$+++ 41095 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The statute, of course, refers to both feet first and vertex deliveries. How common is the vertex delivery in the D&X?
05-380 +++$+++ 41096 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not very common. Not very common, Your Honor. It would occur in circumstances where there is a significant fetal anomaly and some kind of a, something called a sides, or another type of fetal anomaly where there is a distension of the abdomen, but it's very rare.
05-380 +++$+++ 41097 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And in giving your arguments toward the safety benefits of the D&X, I couldn't understand why they wouldn't also apply to the total delivery of the fetus in a vertex delivery situation.
05-380 +++$+++ 41098 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. I don't know if I understand. Official
05-380 +++$+++ 41099 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, my understanding is that the vertex, the skull and head are already outside the mother.
05-380 +++$+++ 41100 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-380 +++$+++ 41101 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the objection in the feet first is that you want fewer instrument passes and so on.
05-380 +++$+++ 41102 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-380 +++$+++ 41103 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in that case, it's not the skull itself that is preventing the delivery of the fetus.
05-380 +++$+++ 41104 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
05-380 +++$+++ 41105 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So your arguments about why the D&X is safer than feet first, wouldn't that apply in the case of total delivery of the fetus as well? In other words, if you want as much of the fetus intact and out as possible, why wait, stop it halfway? Wouldn't the safety argument suggest delivery of the fetus?
05-380 +++$+++ 41106 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but these are circumstances where the fetus can't be delivered. That's the point, Your Honor, is that the fetus is obstructed and so the overt act that takes place is --
05-380 +++$+++ 41107 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In the case of a vertex delivery, where is the obstruction? Official
05-380 +++$+++ 41108 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The obstruction would come from a distension of the abdomen, usually from a significant fetal anomaly like a sides, which is, this is a serious anomaly. It's lethal anomalies that I was talking about. And in those circumstances, an overt act would need to be performed that would in fact cause fetal demise before the fetus could be, the delivery could be continued.
05-380 +++$+++ 41109 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems to me that your argument is that there is always a constitutional right to use what the physician thinks is the safest procedure.
05-380 +++$+++ 41110 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. I think the --
05-380 +++$+++ 41111 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I inferred that from your comments.
05-380 +++$+++ 41112 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so, Your Honor. What, what the Court held in Stenberg in applying the appropriate medical judgment standard of Casey, was that there had to be a substantial body of medical opinion, an objective standard that in fact supports the use of that procedure. And that both, that balances concerns against protecting a woman's health with a concern of unfettered discretion, which the Court has rejected.
05-380 +++$+++ 41113 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So then, you think there are instances in which the State can require that a Official procedure be used, even if it's not the safest procedure?
05-380 +++$+++ 41114 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. I --
05-380 +++$+++ 41115 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So then, the --
05-380 +++$+++ 41116 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yeah.
05-380 +++$+++ 41117 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The obverse of the proposition I put at first, it must be true that there are some instances in which the State can prohibit a procedure even if it is the safest procedure.
05-380 +++$+++ 41118 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true, Your Honor, as long as it doesn't pose an undue burden on the woman, which as you know, certainly the circumstance with the D&E, which is 95 percent of abortions, under the Stenberg ruling.
05-380 +++$+++ 41119 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can I just follow up on that?
05-380 +++$+++ 41120 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-380 +++$+++ 41121 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't understand that. In other words, the fact that it's not the safest procedure does not itself constitute an undue burden? In other words, under Justice Kennedy's hypothetical --
05-380 +++$+++ 41122 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't understand what you mean.
05-380 +++$+++ 41123 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He said that the State can prohibit something even if it is the safest Official procedure, and your answer was so long as it doesn't --
05-380 +++$+++ 41124 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
05-380 +++$+++ 41125 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- pose an undue burden. And I was just following up to say that so, in some circumstances, prohibiting what you regard is the safest procedure does not itself constitute an undue burden.
05-380 +++$+++ 41126 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I understood Justice Kennedy's question to be, could the State prohibit what it thinks is not the safest. And under the Stenberg ruling, although the Court hasn't addressed that question directly, under Stenberg what the Court has said is, the Court can ban procedures only where there is not significant medical authority supporting their use as the safest procedure in some circumstances. So perhaps I misunderstood your question. But the Court has not ever addressed the question, can we ban a procedure that's not the safest. I think the ruling in Stenberg would say well, there has to be significant medical authority that in some circumstances it is the safest. The alternative argument would be, but, if it is the procedure that's used in 95 percent of the cases, or a vast majority of the cases, and banning it would thereby deny women the right to get an abortion and be a substantial obstacle Official in their path in obtaining a legal abortion, that would be another reason why you couldn't ban it.
05-380 +++$+++ 41127 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Miss Smith.
05-380 +++$+++ 41128 +++$+++ TRUE +++$+++ MS. SMITH +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
05-380 +++$+++ 41129 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ General Clement, you have two minutes remaining.
05-380 +++$+++ 41131 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. Let me make just a couple of points in rebuttal. I'd like to start with Justice Kennedy's question, about whether or not there are going to be alternative methods available to end the pregnancy as a practical matter. And the answer to that is there will always be an alternative available as a practical matter. The alternative will always be the D&E procedure, which the district court in this case called the gold standard. And the best evidence of that, Justice Kennedy, is that their own witnesses like Dr. Chasen, for example, when they set out to perform the D&X procedure, they are only successful about 33 percent of the time. What happens in the other 67 percent of the cases is they actually, even though they tried to perform a D&X, will perform a D&E. And so all of the clinics that provide D&X also Official necessarily provide D&E, because the D&E is what they end up with if they are not able to remove the fetus intact. So in every single case, there are some, you know, the induction procedure has to be done in a hospital, but the D&X and D&E procedures are both equally available in clinics, so no woman as either a theoretical matter or a practical matter, is going to be denied a safe alternative to end her pregnancy. I wanted to pick up on Justice Souter's question as well. You asked for factual citations in the record on this dispute between us. I think the record is really overwhelmingly in our favor. I point you to Dr. Fitzhugh, who's one of the plaintiffs on this side, 135a. He says he doesn't try for intact delivery in every case because it would necessitate a second round of dilation, a second round of laminarias, so he doesn't do the second round, he gets dismemberment. Dr. Knorr, another one of the plaintiffs, at page 142a, he says the procedure would require greater dilation. And if I could just finish on the citations, Dr. Vibhakar, who does dismemberment 100 percent of the time, 148a -- all of these are in the petition appendix of the district court opinion -- Dr. Cranen explains his procedure at 174a to 177a. Thank you
05-380 +++$+++ 41132 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General. Official The case is submitted.
05-381 +++$+++ 41136 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first in case 05-381 Weyerhaeuser Company versus Ross-Simmons Hardwood Lumber Company. Mr. Pincus.
05-381 +++$+++ 41138 +++$+++ FALSE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The question in this case is whether the standards this Court adopted in Brooke Group to determine whether a seller's prices violate the antitrust laws because they are too low also should apply in assessing the claim that the buyer's purchase prices are illegally high. We submit that the Brooke Group test applies because the four key underpinnings of the Court's ruling apply fully here. First, there's a high risk of mistaking aggressive competition for anticompetitive behavior. Increasing the prices that are paid for inputs like lowering sales prices is a mechanism by which a firm competes. It's the result that we would expect from a buyer's ordinary competitive instincts. So the conduct targeted here is on its face identical to core procompetitive conduct. It's also very hard to distinguish losses suffered by a more inefficient competitor from hard -- to anticompetitive behavior, but the antitrust laws --
05-381 +++$+++ 41139 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can I ask you a preliminary question before you get too far into your argument? Is it your understanding that the instructions to the jury were that finding that predatory price cutting was in itself sufficient to establish a Section 2 violation? I know the Court of Appeals opinion reads that way but is it, do you think the jury was so instructed?
05-381 +++$+++ 41140 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Our position is that that is what the jury was instructed, because the predatory pricing instruction said one of plaintiff's contentions is that defendant purchased more logs than needed or paid a higher price for logs than necessary in order to prevent the plaintiffs from obtaining the logs they needed at a fair price. I'm reading from page 14(a) of the appendix to the petition. And then it concluded, if you find this to be true, you may regard it as an anticompetitive act.
05-381 +++$+++ 41141 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You may consider it as an anticompetitive act, but it does not say you may regard it as a violation of Section 2.
05-381 +++$+++ 41142 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
05-381 +++$+++ 41143 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And as I read the instructions, it did require there be three elements of the violation of Section 2 which, two of which were not discussed by the Court of Appeals.
05-381 +++$+++ 41144 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, there is no, there is no contention here about monopoly power. The focus here is on the conduct element of Section 2.
05-381 +++$+++ 41145 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you concede there is monopoly power?
05-381 +++$+++ 41146 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We are not disputing it before this Court.
05-381 +++$+++ 41147 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But is that relevant to the question whether, if there is monopoly power plus an attempt to preserve that power or require that power, plus an anticompetitive act, is that a violation of section 2.
05-381 +++$+++ 41148 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, our view is what the Court has said in cases like Trinko, is that the test is monopoly power and anticompetitive conduct. Those are the two elements. We are not contesting the monopoly power element. We are looking at whether there was anticompetitive conduct here.
05-381 +++$+++ 41149 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you do agree that the conduct in itself is not sufficient to establish a violation, the question of whether the conduct plus the monopoly power --
05-381 +++$+++ 41150 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Because this is a claim under Section 2, there would have to be either monopoly power or a danger of probability to the monopoly power. It's single firm conduct so there would have to be --
05-381 +++$+++ 41151 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And so you're arguing not only that the pricing conduct was not itself sufficient to prove a violation, but it also was not even an anticompetitive act that may give rise to damages?
05-381 +++$+++ 41152 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. We are arguing both things. I think, I'm not sure that there is much space between the two, but to the extent there is, we are arguing both.
05-381 +++$+++ 41153 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Obviously, if there's just an anticompetitive act without a violation of the statute, then there would be no basis for damages.
05-381 +++$+++ 41154 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's right, but I guess the way I think the Court has approached determining anticompetitive act, anticompetitive conduct, is it's the kind of conduct when engaged in by a monopolist or an entity that has a dangerous probability of cheating it, it is a violation of this statute.
05-381 +++$+++ 41155 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course in the Brooke case, it may not have even been a monopolist.
05-381 +++$+++ 41156 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because Brooke involved a claim under the Patent Act. But this Court in the Trinko case has certainly interpreted the Brooke Standard as also applying to claims under Section 2. And in fact the Court explicitly said that in Brooke Group. As I said, the first critical underpinning is the risk of mistaking aggressive competition for anticompetitive behavior. Second, this case involves --
05-381 +++$+++ 41157 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it's a little different here in that in the Brooke Group cases, of course, the alleged anticompetitive conduct was pricing too low, which has at least a direct benefit to consumers either in the short term, certainly in the short term, and arguably in the long-term as well, while here that is not the form in which the anticompetitive conduct, that's not the form the anticompetitive conduct takes. So isn't that a reason not to think that we should apply the Brooke Group test to this situation?
05-381 +++$+++ 41158 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we don't, we don't think that that difference is a distinction that warrants a different test, for several reasons. First of all, we are dealing here with single firm pricing conduct and it's recognized that that's key to the proper functioning of the markets. As the court said in Professional Engineers, fixed pricing is the central nervous system of the economy. It allocates goods and ensures that, that they are allocated to the most efficient use. Here, although there's no immediate benefit to consumers, there is an immediate benefit to the sellers of the logs, who certainly benefit when competition drives up the prices that they achieve. And we think that the Sherman Act protects them and gives them the benefit of full competition just as much as it does consumers. Over the course --
05-381 +++$+++ 41159 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Have we ever identified that as a benefit that the antitrust laws try to achieve, people get higher prices for what they sell?
05-381 +++$+++ 41160 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. In Mandeville Farms, which was a Section 1 case, the Court did talk about the fact that the antitrust laws protect sellers as well as buyers, and that was a case in which there was allegedly a Section 1 conspiracy to price too low, and the Court said that's per se unlawful.
05-381 +++$+++ 41161 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So in Brooke Group, we said it's a benefit when prices are low to consumers, and in this other case we said it's a benefit when prices are high to suppliers.
05-381 +++$+++ 41162 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the benefit that I think the Court is looking at in both cases is not the particular price levels, but in achieving and ensuring free price competition because of the central role that price plays in the economy. That's what the Court is trying to protect in Professional Real Estate -- in Professional Engineers --
05-381 +++$+++ 41163 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I assume it's a benefit to consumers if the supply of the needed goods is increased because of higher prices being paid for those needed goods, and I assume when a higher price is paid, more of those goods will be forthcoming, which will benefit consumers who want those goods.
05-381 +++$+++ 41164 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is our second argument, Justice Scalia.
05-381 +++$+++ 41165 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you don't have that in this case, do you, because I thought the, I thought one of the arguments on the other side was the inelasticity of the supplies, so that no matter what they were paying, basically the same amount of wood was ultimately going to get processed; is that correct?
05-381 +++$+++ 41166 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. The claim is that the supply was relatively inelastic, not that it's perfectly inelastic, and as long as the supply market is not perfectly inelastic, an increase in price may lead to more supplies, maybe not as much as if there were higher elasticity, but more. But there's another benefit to consumers here, which is that if one would expect that a buyer bidding more can make a more efficient use of the product and therefore generate more output, and that output expansion which doesn't depend on supply expansion is also beneficial to consumers because that means there will be more output in the downstream market and a corresponding decrease in price. So we have those two benefits to consumers and we also have the fact that as the Court said in Professional Engineers, the Sherman Act reflects a judgment that price competition generally, a free and open price competition will produce lower prices and better goods and services, and the Court has not required that that be traced to consumer welfare in every particular case.
05-381 +++$+++ 41167 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I presume it could lead to lower consumer prices too. If you have a firm that has developed a new, a new technique for processing the logs, and it can process them cheaper and faster, and sell them for a lower price but in greater volume, and thereby make even more profit, that firm would be willing to pay more for those logs, even though it would sell them for less than competitors might sell them.
05-381 +++$+++ 41168 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right, Justice Scalia, and that's what the record reflects here, that Weyerhaeuser invested in its lumber mills and created a process that got more value out of a log. The record reflects that plaintiffs, for example, did not do that. And there is testimony that plaintiff's mill was quite, relatively inefficient compared to Weyerhaeuser. Weyerhaeuser invested new processes that had less waste, produced more output as Justice Scalia suggested, and therefore it was able to sell, sell that output at a lower price and still make a profit, because it was getting more output for log and therefore could pay more for the log.
05-381 +++$+++ 41169 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was there any argument in the trial court or in the briefs of the Court of Appeals as to how to calculate cost? You basically have two markets. You don't usually think of cost when you buy something. But was there any argument as to how to determine whether or not this was below cost in the Brooke Group sense?
05-381 +++$+++ 41170 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, our view, Justice Kennedy, there really wasn't, because the district judge had made clear his view in the pretrial motions that there wasn't a need to prove prices, and that --
05-381 +++$+++ 41171 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that was the end of it at the trial court.
05-381 +++$+++ 41172 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But our position is, and there has certainly been some writing on this in the literature, is that what one does is take the cost of producing the output which includes the allegedly predatory price of the log, and here logs are 75 percent of the cost so it's a very big cost. Compare those costs to the revenues that are received in the downstream market and if those revenues exceed costs, then you're in a position where the defendant is behaving perfectly economically rationally. If they're less, then you go on to recoup it.
05-381 +++$+++ 41173 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Pincus, how do you determine the price of the logs? Because we, the charges that some logs were purchased at an excessive price, and if we were dealing with only those logs to determine cost, that's one thing. But we are, also in this picture is that some of the logs came from Weyerhaeuser's own land and some came from long-term contracts that it had, and those, the price was not inflated on those. So if you take those into account you may get one figure, but if you take only the high bid logs you might get a different picture. So how, what is it? How do you determine costs? Do you look at all the logs that were purchased or only the ones that were allegedly bid out?
05-381 +++$+++ 41174 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. You would look, you would look, Your Honor, at all of the, at all of the logs, just as in the downstream market if you have a sell side case, you look at, you look at prices of all sales. Here it's interesting that the record reflects that plaintiff received more than, between 30 and 50 percent of its logs from the same kind of long-term sources that it argues that Weyerhaeuser received it from. So in this case there really isn't the kind of disparity, but our position would be that you add all of those up and compare them to revenues.
05-381 +++$+++ 41175 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's not clear to me that we have to get into this but if we do, I'm not sure about your answer to Justice Ginsburg's question. If you have your own logs that you own already and if you have logs on a long-term contract, the only relevant logs are the logs that both people are competing for. That's the only relevant market that we are talking about insofar as the purchaser is concerned.
05-381 +++$+++ 41176 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And it might be --
05-381 +++$+++ 41177 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if Weyerhaeuser wanted to drive somebody out of the market, then they go after the logs which are open to both parties.
05-381 +++$+++ 41178 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And Your Honor, as the Court observed in Brooke Group, there really wasn't a need there to get into how the test works and we think there isn't here. We think the issue is symmetrical and it might be that the focus is on the incremental costs that are associated with the alleged predatory volume, and therefore that might focus on those incremental costs. But in this case there's no dispute that, whatever the measure of costs, there has been no challenge to the position that Weyerhaeuser's prices were above those costs. Let me just turn back to, to the other two reasons why we think Brooke Group applies because I think they're important. The third is it's much more likely that the high bids here were going to, were a result of legitimate competition than of anticompetitive effort. As this Court has observed both in Brooke Group and Matsushita, predatory conduct is self-deterring. To engage in it, the defendant has to be willing to incur a near-term loss against the hope of higher returns later. And as the Court explained in those cases, the loss is definite but the gain depends on a number of imponderables. So there is some self-deterring. And finally, a test that provides no guidance threatens false positives that will deter the very competition that our economy requires and that helps our economy reach its most efficient state. As Justice Breyer put it for the First Circuit in Town of Comfort, antitrust rules must be clear enough for lawyers to explain them to their clients, especially in a sensitive area like pricing. And certainly the rule that the Ninth Circuit adopted here has none of that clarity and we think that the Court's Brooke Group decision and that test does.
05-381 +++$+++ 41179 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask this question? Supposing the evidence was perfectly clear that the company did engage in a plan to get a total monopoly and there were minutes of the board of directors says that in order to do this we've got to drive company X out of business and so you, we want you to compete in every transaction with company X that you can and buy the logs at a higher price. Would that be an anticompetitive act even if it did not result in loss to the defendant?
05-381 +++$+++ 41180 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the only anticompetitive conduct alleged was pricing conduct, Your Honor?
05-381 +++$+++ 41181 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. The anticompetitive -- the plan is to drive the company out of business. And the only anticompetitive conduct other than proving the whole objective is that you pick on this one competitor and outbid him every time you can. Could that possibly give rise to a damage claim?
05-381 +++$+++ 41182 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it wouldn't, Your Honor.
05-381 +++$+++ 41183 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Even if the whole purpose was to drive it out of business?
05-381 +++$+++ 41184 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Even if that was the whole purpose.
05-381 +++$+++ 41185 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Pursuant to a plan to acquire a monopoly.
05-381 +++$+++ 41186 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the reason for that, Justice Stevens, is it's very hard to distinguish, especially for the judicial system to distinguish, between hard-fought competition and anticompetitive intent if all we're looking at is what's in people's mind set. As judge Easterbrook wrote in his AA Poultry decision --
05-381 +++$+++ 41187 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why is it so hard if you take Justice Stevens' premise that there's an agreement and we take that as a given, as a given premise?
05-381 +++$+++ 41188 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because there won't be a given premise in every case, Your Honor, and the problem is the Court has to write rules that will, that will govern conduct, primary conduct of business people in the market, and a rule that says if you can prove intent then you don't have to worry about prices and costs is a rule that opens the door to second-guess, judicial second-guessing of prices --
05-381 +++$+++ 41189 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but only intent plus monopoly power. You have to be able to prove monopoly power, too.
05-381 +++$+++ 41190 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You do, Your Honor.
05-381 +++$+++ 41191 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There aren't too many cases that fit this.
05-381 +++$+++ 41192 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As the Court has recognized in the section 2 context, the problem of deterring procompetitive conduct is even more serious because you don't have the threshold environment of proof of conspiracy, as one does in section 1. We're dealing with unilateral conduct, and so --
05-381 +++$+++ 41193 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but unilateral conduct where you have monopoly power. There aren't too many of these cases, as you know.
05-381 +++$+++ 41194 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, market definition is a complicated issue and it may be hard for businesses --
05-381 +++$+++ 41195 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It was an issue that was resolved by the jury in this case and I don't understand you to be disputing the resolution of that issue.
05-381 +++$+++ 41196 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What do we do in the correlative situation where there is an allegation of predatory selling rather than predatory buying if you had the same situation posed by Justice Stevens? Namely evidence that you're trying to drive the competitor out of business, wouldn't that establish a violation?
05-381 +++$+++ 41197 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would not establish a violation, Your Honor. In fact, the Brooke Group Court dealt with that very case because the dissent in Brooke Group pointed out that the district court in that case had held that the intent evidence was amongst the most powerful that had ever been, been presented in any case, and it still said, even though there was a clear evidence of intent --
05-381 +++$+++ 41198 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that did not involve a monopoly. That did not involve monopoly power.
05-381 +++$+++ 41199 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it involved the test for predatory pricing, Your Honor, under Robinson-Patman. But the Court said its test was perfectly applicable to section 2. And the lower courts have certainly applied that test in just that way in section 2 cases. And if the rule would be that even in the predatory selling situation intent can override the price-cost and the recoupment requirements, then you're in a situation where there's no ability for business people to know in advance when low prices are justified. All we think is that there should be symmetry. If the Court has no further questions I'll reserve the balance of my time.
05-381 +++$+++ 41200 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Pincus. Mr. Shanmugam.
05-381 +++$+++ 41202 +++$+++ FALSE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court. Aggressive bidding by the buyer of an input, no less than aggressive pricecutting by the seller of a finished product, is usually procompetitive. Because a claim of predatory bidding is simply the flip side of a claim of predatory pricing, the Brooke Group standard for predatory pricing claims should apply to predatory bidding claims as well. And in our view the court of appeals erred in this case by sanctioning a broader and more subjective standard of liability. In Brooke Group, this Court adopted its now familiar two-pronged standard for predatory pricing claims despite recognizing that each prong of that standard might permit some anticompetitive pricecutting. The court was willing to tolerate that modest degree of underinclusion because, in the Court's own words, "The mechanism by which a firm engages in predatory pricing is the same mechanism by which a firm stimulates competition, namely by lowering its prices. And the Court explained that a broader or a less precise standard of liability would run the risk of prohibiting or chilling some procompetitive price cutting. In our view the same analysis can apply to a claim of predatory bidding. Because aggressive bidding is usually procompetitive, application of the Brooke Group standard is warranted in order to avoid prohibiting or chilling procompetitive conduct with regard to price in that context as well. The court of appeals in this case held that Brooke Group was inapplicable to respondent's claim of predatory bidding by --
05-381 +++$+++ 41203 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you describe the hypothetical Justice Stevens posed to your, your brother, would you describe that as just aggressive bidding? Aggressive is, you know, it's kind of a good term when you're talking about competition. But what if it's purposely bidding higher than you know your rival can afford?
05-381 +++$+++ 41204 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Mr. Chief Justice, I understood Justice Stevens' hypothetical, and he can correct me if I'm wrong, to posit a case in which there was dynamite evidence that the defendant had a monopolistic or exclusionary intent. But in our view that is insufficient to state a section 2 claim. One has to have exclusionary conduct as well.
05-381 +++$+++ 41205 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, you have to have the monopoly power as well.
05-381 +++$+++ 41206 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that is also true, and with regard to a claim of attempted --
05-381 +++$+++ 41207 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In your view, if as the jury was instructed in this case there was proof of monopoly power and intent to maintain or preserve that power, plus anticompetitive acts, does the anticompetitive act have to be in and of itself a violation of the Sherman Act?
05-381 +++$+++ 41208 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think you need to have all three of those elements in order to state a claim of attempted monopolization --
05-381 +++$+++ 41209 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if you do have all three, is that enough to prove a violation?
05-381 +++$+++ 41210 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be enough to state a claim for attempted monopolization under this Court's decision in Separate Forks.
05-381 +++$+++ 41211 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And isn't that how the jury was instructed in this case?
05-381 +++$+++ 41212 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In our view the jury was instructed that it would be sufficient to establish an anticompetitive act to find that petitioner priced its logs --
05-381 +++$+++ 41213 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but if it was not instructed it would be sufficient to find a violation of section 2 by those, by that accounting, is that not correct?
05-381 +++$+++ 41214 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Justice Stevens, and the jury was also instructed and in our view the jury was properly instructed with regard to the other two elements, namely a dangerous probability of monopolization and a specific intent to monopolize. The sole question before this Court is what constitutes exclusionary conduct for purposes of section 2, what constitutes it regardless of whether it's a claim of attempted monopolization or actual monopolization.
05-381 +++$+++ 41215 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Go back to my hypothetical. Supposing you have the first two elements and you say in order to drive this company out of business we want you to compete with them and get the logs at whatever cost it takes. Would that be an anticompetitive act?
05-381 +++$+++ 41216 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Stevens. That would solely be --
05-381 +++$+++ 41217 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Even if it was for the sole purpose of driving the company out of business in order to accomplish the goal of getting a monopoly?
05-381 +++$+++ 41218 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be evidence, and it may be powerful evidence, of a monopolistic intent, though courts have noted that even with regard to that requirement it's famously difficult to distinguish between a legitimate competitive attempt on the one hand and an illegitimate monopolistic intent.
05-381 +++$+++ 41219 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, no. I'm assuming this is not evidence of intent. There's independent evidence of both intent and monopoly power. With those two elements established, would this, the kind of evidence I described, be evidence of an injury to the plaintiff that could be actual in damages?
05-381 +++$+++ 41220 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Stevens. You would need to have objective evidence that the defendant met both of the prongs of the Brooke Group requirement.
05-381 +++$+++ 41221 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Will you need to meet the prongs of the Brooker test even if you otherwise prove a violation of section 2?
05-381 +++$+++ 41222 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'm not quite sure what it means to say that you otherwise prove a violation in that example.
05-381 +++$+++ 41223 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You prove monopoly power plus an intent to maintain or acquire it.
05-381 +++$+++ 41224 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is insufficient. You have to have some action --
05-381 +++$+++ 41225 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's insufficient to prove a violation of Section 2?
05-381 +++$+++ 41226 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is insufficient to prove a violation of section 2 because you have to have some conduct that is classed as exclusionary, and in our view that is the content that the Brooke Group standard supplies. It specifies the conduct that you need to have and that conduct is the defendant suffering a loss in the short term and having a dangerous probability of recouping that loss in the long term.
05-381 +++$+++ 41227 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I assume you could have a company that has a dynamite evidence of seeking to monopolize and the means that they choose is just idiotic. For example, they say, we're going to try to get a monopoly by buying these logs at a lower price as, at as low a price as possible. You would have the two elements, monopoly power, intent to monopolize, but you wouldn't have an act that constitutes anticompetitive conduct.
05-381 +++$+++ 41228 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia --
05-381 +++$+++ 41229 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And that's what you're asserting is the case here.
05-381 +++$+++ 41230 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You could have an incompetent monopolist more generally or an incompetent predator in this specific context. And I think that the only other thing I would say with regard to this colloquy is that the Court really did confront this issue in Brooke Group. There was fairly strong evidence of monopolistic intent and the majority opinion --
05-381 +++$+++ 41231 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there is no evidence of monopoly power and it isn't even remotely at issue in that case.
05-381 +++$+++ 41232 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, and it wasn't an issue simply because it was a Robinson-Patman Act case and all that is required under the Robinson-Patman Act is the possibility of harm to competition and there was some disagreement about whether a showing had been made of that requisite possibility between the majority opinion and your dissenting opinion. But I don't think that there was any disagreement in Brooke Group with regard to the relevant standard for exclusionary conduct. Even the dissenting opinion recognized that recoupment would be necessary in order to state the predatory pricing claim in the Robinson-Patman Act context.
05-381 +++$+++ 41233 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would your answer be the same if you added to Justice Stevens' hypothetical very high barriers of entry that would prevent other competitors from entering the market after the target was driven out?
05-381 +++$+++ 41234 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ High barriers to entry, Justice Alito, would be very relevant to the inquiry under the second prong of the Brooke Group standard, namely whether the defendant had a dangerous probability of recoupment in the long term. And indeed in many predation cases, many predatory pricing cases in the 13 years since Brooke Group, barriers to entry have been absolutely vital in resolving predatory pricing claims at the summary judgment stage, because typically defendants will make the argument that the absence of barriers to entry make the possibility of recoupment unlikely. But that is a consideration that is built into the Brooke Group standard and it certainly would be part of the Brooke Group analysis in the predatory bidding context as well. I want to say just one thing in response to Justice Ginsburg and Justice Kennedy's questions to my friend Mr. Pincus about the question of the appropriate measure of cost if Brooke Group were to apply to predatory bidding claims. As in Brooke Group itself, we believe that it is unnecessary for this Court to specify the exact method of calculating costs in this case. But the position of the United States more generally both in the predatory pricing context and in the predatory bidding context is that a Court should look to a defendant's incremental costs, and in this context that would mean looking to the amount of the input that was the subject of the alleged predation. So in this case the amount of logs that petitioner allegedly predatorily purchased on the open market. And such an incremental approach to be sure is not within its difficulties in application and for that reason a number of lower courts in the predatory pricing context have instead looked to average variable costs or other measures as a proxy for incremental costs. But we believe that in a case such as this one, looking to incremental costs may be useful because it effectively excludes from the analysis any potential cross-subsidization, whether by virtue of the fact that in this case, for example, petitioner may have harvested logs from its own lands. There are claims in this case that petitioner entered into various exclusive dealing arrangements as well, obtained logs at a lower price on that basis. And an incremental approach has the virtue of focusing only on that portion of the market that is the subject of the alleged predation claims.
05-381 +++$+++ 41235 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You also, I take it, have to have an equally limited approach on the recoupment analysis, then. I mean, your recoupment analysis would have to be symmetrical with your cost analysis.
05-381 +++$+++ 41236 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. That's absolutely true, Justice Souter, and again this is an issue that the lower courts have been grappling with in the predatory pricing context, and I by no means want to suggest that it is always an easy analysis in the predatory pricing context. Professor Arita's treatise has hundreds of pages on the appropriate calculation of cost, but I think that the important thing to remember with regard to the below cost pricing prong of the Brooke Group analysis is that it does provide an objective yardstick by which a defendant's loss can be measured. Thank you.
05-381 +++$+++ 41237 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Shanmugam. Mr. Haglund.
05-381 +++$+++ 41239 +++$+++ FALSE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please The Court. In this Court's antitrust jurisprudence over the last 25 years, market realities have consistently trumped per se rules. The same approach should apply here. Brooke Group's per se rule which carved out a special exception to the standard rule of reason balancing test in Section 2 cases should not be extended to the buy side. No safe harbor per se rule is justified here because raising input prices, unlike cutting output prices, is moving prices in the wrong direction for consumers.
05-381 +++$+++ 41240 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But even it does hurt the suppliers and the antitrust laws are just as, I don't know just as, but they are just as concerned about a group of small farmers or a group of small growers or a group of small fishermen faced with a monopsony buyer as they are with a group of consumers having to fight off a monopoly seller.
05-381 +++$+++ 41241 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer --
05-381 +++$+++ 41242 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean that's pretty well established, isn't it?
05-381 +++$+++ 41243 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well I'd like to point out that the Mandeville Farms case that Mr. Pincus cited does not stand for the same --
05-381 +++$+++ 41244 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no, Congress has actually passed special legislation that the Mandeville Farms is consistent with the Farmers Cooperative and so -- you want me to write the proposition that the antitrust laws are not concerned --
05-381 +++$+++ 41245 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, absolutely --
05-381 +++$+++ 41246 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- with the monopoly buyer who would in fact exploit a group of small suppliers, farmers?
05-381 +++$+++ 41247 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely not.
05-381 +++$+++ 41248 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
05-381 +++$+++ 41249 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But in this particular context which the Ninth Circuit repeatedly emphasized, in an inelastic market like this one raising input prices is not going to increase supply and --
05-381 +++$+++ 41250 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That can't possibly be right, can it? I mean if in fact the object here is to strike, is -- suppose their object is what you say. Their object is in fact to try to get a monopoly on the buying side over a group of small woodsmen. And they might do that if they drove out all the buying competitors, and now what are they going to try to do? What they will try to do if they get that terrible monopoly, which would be bad --
05-381 +++$+++ 41251 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Drive prices down.
05-381 +++$+++ 41252 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right. Drive prices way down, below what the woodsmen could get for them. And if that's going to have any effect aside from an income effect, it will leave some of them to go to the bread line or go to other places where they have other jobs at lesser revenue than they would get by staying in the woods business and selling at a reasonable price. That would be an antitrust concern.
05-381 +++$+++ 41253 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, and that is exactly what Weyerhaeuser's plan was here, as shown by their own materials, that their plan was and in fact they did foresee and project that log prices would go down in 2001 --
05-381 +++$+++ 41254 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So where we are is at the problem. The problem is the same as at the buying side. What we have is possibly a very bad motive and very bad effects. On the other hand, low prices are good for the consumer.
05-381 +++$+++ 41255 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But you're not --
05-381 +++$+++ 41256 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Here we have bad effects, bad possibilities. On the other hand, higher prices are good for the woodsmen. So we need rules to separate the sheep from the goats. And the other side is proposing a rule, and the rule simply is don't count this as bad conduct, unless the person who pays the money for the goods is in fact buying so many goods that later on when he tries to sell them he will incur a loss. Now I would have thought for 40 years that was a traditional idea. If you're trying to decide whether people are hogging goods unnecessarily for bad purposes, or rather storing up nuts for winter for good purposes, then a very good key to that is do these people expect in the long run to make money out of this without driving those victims out? If the answer is yes; they can make money on the market, they are storing up nuts for winter. It's good. And if the answer is no it's bad. That's called the recoupment test. I don't think that's new. I think it's old. And I'm not sure what your view of it is.
05-381 +++$+++ 41257 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, as to Brooke Group and what the Court's being asked to do here, Justice Breyer, is to go down the same path that it did in Albrecht versus Harold Company in '68 when it agreed to treat completely symmetrically minimum and maximum vertical resale price restraints. Later on, in State Oil Company vs. Kahn the Court abandoned and accepted Justice Harlan's dissent that it was wrong to equate those two.
05-381 +++$+++ 41258 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I agree with you. But I don't still think you can defend this retail versus maximum price restraint. That's a whole another kettle of fish. And what I'm interested -- I guess my question particularly is, I propose one test not two, but it might be that my test encompasses the dollar test and incremental costs and so forth. What do you think of my one test?
05-381 +++$+++ 41259 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-381 +++$+++ 41260 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ One test is if they are not going to make money legitimately out of this in the long run, it's bad, unless they can explain it away. But if they are, it's okay.
05-381 +++$+++ 41261 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The problem with granting a safe harbor for above cost input purchases is that it does not work well in this context, especially in an inelastic market. The suggestion that you can simply use incremental cost is not a workable approach here if you look at the facts in this case.
05-381 +++$+++ 41262 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about the fact that the woodsmen in Justice Breyer's story are rational actors as well, and they don't have to be geniuses to realize that they are in a better shape having two buyers rather than just one. So maybe they forego the extra 50 cents a log, or whatever -- tree, it is in the short term and sell enough to keep the other company in business? I mean they can make that decision themselves. Or they can make the decision as rational actors that they are better off having more money that they can then use to buy more alder saplings that they can plant for the future. And either way it benefits the consumers.
05-381 +++$+++ 41263 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well not, that's not quite correct, because the signals that the higher input prices show, yes, they do generally incent more production in a, in a typical market. Here, however, where you have a product that takes 30 to 50 years time and production, the price, higher price signals when they are sent by a monopsonist, like Weyerhaeuser in this case, actually send a very powerful message to tree farmers not to replant alder, despite those high prices. And there was evidence in the follow-on cases that reference that. It was alleged in our complaint in this case but not actually backed up by any testimony at trial, that tree farmers in Oregon and Washington were actually electing not to replant alder and as Professor Noel notes in his law review article in the issue of the Antitrust Law Journal, which by the way is the only area -- half of this issue is devoted to this subject. It's the sum total of literature devoted to predatory overbidding in this area. And what Professor Noel notes is that where you have localized monopsony, the result is when the monopsony is in full flower a misallocation of resources between regions. The highly productive forest lands of the Pacific Northwest won't have as much alder in the future because of the significant signals sent by a monopsonist, even when they are engaged in that scheme. The seller is happy if he has mature alder to sell at that time to get the good price, but he is not going to replant, because he sees that 30 years down the road he will not have a competitive marketplace within which to sell his timber, and that was the reality in this case.
05-381 +++$+++ 41264 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well if he is, if he is that rational and foresighted, why isn't he rational and foresighted enough to know that he ought to be selling some to the other, the other processor even if that processor is not bidding as much?
05-381 +++$+++ 41265 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well we did actually have some record evidence in this case that at least a few people were doing that. One of the major suppliers of the respondent here, Ross-Simmons, was a company called Longview Fiber which made it -- a very sophisticated publicly held company -- made it a practice to sell most of its volume to Ross-Simmons on a market basis because it did not want the eventuality of not having Ross-Simmons in that competitive circle with Weyerhaeuser. Most small woodland owners, however, who may only be in the market once every five years because that's the nature of their rotation, of the age classes of the timber that they have got, are not in that kind of sophisticated position because they are in the market so infrequently to make that kind of a judgment. It's been --
05-381 +++$+++ 41266 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If we don't take the Brooke Group approach, is the alternative to ask the jury to do what the instructions in this case ask them to do.
05-381 +++$+++ 41267 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it's not.
05-381 +++$+++ 41268 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ To decide whether Weyerhaeuser bought more logs than it needed in order to prevent its rivals from obtaining the logs that they needed at a fair price? How is a jury to, a lay jury, to decide whether a company like Weyerhaeuser bought more logs than it needed, or what is the fair price?
05-381 +++$+++ 41269 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't contend that the instruction was perfect here, but if one looks at the instruction as a whole and --
05-381 +++$+++ 41270 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you think it was sufficient.
05-381 +++$+++ 41271 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Pardon me?
05-381 +++$+++ 41272 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You think it was sufficient enough.
05-381 +++$+++ 41273 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In this case it was legally sufficient and I point out that this Court very recently has issued a decision in the first case of the term, Ayers vs. Belmontes, where you looked at the question of the catch-all mitigation factor in California in the penalty phase of a capital murder case. And you looked at the instruction and interpreted it in terms of the closing arguments, the evidence and the other instructions as a whole.
05-381 +++$+++ 41274 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Who proposed the instruction in this case?
05-381 +++$+++ 41275 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The instruction, the paragraph that is subject to the great criticism on the other side, was a paragraph that was drafted by the district judge and handed out near the end of the trial and then commented on by the lawyers in, prior to --
05-381 +++$+++ 41276 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There was no requested charge on this point by the plaintiff?
05-381 +++$+++ 41277 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- as to the issue of predatory pricing, plaintiffs, as we make clear in our brief, actually submitted a predatory pricing instruction three weeks before the trial. You tend to be overinclusive pretrial. Defendant on the other hand surprisingly submitted no such instruction on predatory pricing. The judge submitted a paragraph that had something more than what the current, or the ultimate paragraph contained. There was a debate over whether it needed to be, whether it was consistent with Brooke Group. I agreed with the other side that it did not have both components of the Brooke Group test. Judge Panner and I had a colloquy where ultimately he was going to turn one paragraph into two, include a Brooke Group test. We then withdrew our request for that instruction, Weyerhaeuser objected to the, the thinned down version of the ultimate paragraph. But the interesting thing about Weyerhaeuser's relationship to this instruction is that they really invited the linguistic framework of this, "bought more than they needed" or --
05-381 +++$+++ 41278 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What does that mean? What does a fair price in this, in this context mean? Does it mean the price that's necessary in order to keep an inefficient competitor in business?
05-381 +++$+++ 41279 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, what it meant in this case, Justice Alito, is that it meant what, how much did Weyerhaeuser artificially increase the log market above where it otherwise would have been? We had several experts and a number of both industry and forest economists testify that for 20-plus years log prices had been following lumber. There was an equilibrium in the market. Then you get to --
05-381 +++$+++ 41280 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is that the standard of fairness? I mean that, you know, that may be fine. But how does, how does a jury, A, what's the authority for saying that is the standard of fairness and B, how does a jury know that?
05-381 +++$+++ 41281 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- if you look at the Ninth Circuit opinion, the Ninth Circuit made it clear that the instructions as a whole provided sufficient guidance. Nowhere in the case as we tried it did we attempt to exploit the instruction in the way that Weyerhaeuser suggests happened.
05-381 +++$+++ 41282 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Maybe you didn't, but that basically left the jury on a, on a free float, didn't it?
05-381 +++$+++ 41283 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think so if you look at the evidence. The evidence that we presented included a forest economist who presented three different scenarios where he identified how much Weyerhaeuser had artificially increased log prices above where they would have been but for their anticompetitive behavior. We in no way went to the jury in closing, saying award what you think is fair. We relied completely on that evidence, and in fact the jury, which included a Ph.D. in physics in a high-tech industry, an accountant, the head of a chain store, and a banker and a retired farmer, they looked at the evidence and they actually to the dollar picked one of those market -based scenarios for how much was the market elevated.
05-381 +++$+++ 41284 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Let's assume I accept your sort of Delmonte's analysis here. If we were to approve of that instruction in effect, as you want us to do, and we also believe that on its face something more has got to be said than merely the word fair, what proposition would we say must be included in that instruction to make the so-called fairness instruction a sensible one that can be consistently applied?
05-381 +++$+++ 41285 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And we don't contend that it was a perfect instruction. We think it would be perfectly appropriate if --
05-381 +++$+++ 41286 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I realize that.
05-381 +++$+++ 41287 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
05-381 +++$+++ 41288 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I'm saying if we follow your lead, we're going to try to take that and make it a closer to perfect instruction, and what should we say must be added to it?
05-381 +++$+++ 41289 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's quite simple. If you look at that paragraph, there are two pieces of it. One of them, one portion says that you can regard it as an anticompetitive act if defendant purchased more logs than it needed. We don't think that needs to be improved because that's easy to figure out, and here we had evidence that they continued --
05-381 +++$+++ 41290 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why? Why is it easy to figure out? As Justice Breyer brought up the stockpiling, how do you know whether they are storing it, or a time when the supply is short, or they are just letting it go to rack and moon in order to put this company out of business?
05-381 +++$+++ 41291 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, you will know because of the evidence in the case. If the plaintiff, the defendant is able to show that they were storing up this extra input against a prospect of a price hike in the future or because they were out trying to get enough volume for some promotion for a customer that was going to significantly increase their purchases, then you'd have a different kind of case. We have a situation where they warehoused large, unprecedentedly high volumes of lumber because they --
05-381 +++$+++ 41292 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why did they say they needed it? I mean, why do you need all this Ph.D. guy up there? Why don't you just prove what you just said?
05-381 +++$+++ 41293 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We did.
05-381 +++$+++ 41294 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Fine. Then why do you need all these other instructions about pricing? I suppose the only reason you'd need them is if there's a dispute as to whether it was in their economic interest in the absence of any intent to monopolize these people to buy all these logs or not. And so it would be very interesting if you have a way of proving that they did not need these for any legitimate purpose, a matter which is likely to be disputed. So, I think the hard thing in these cases is to prove that. And if you can tell me how you prove that without giving the jury an instruction something like, look to see whether they can sell them reasonably at a profit. Or, look to see even if they can't sell them at a profit, whether they could recoup whatever they are losing later. Or, or, and you fill in some blanks, and now I'll have some candidates for testing.
05-381 +++$+++ 41295 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, as to the paid a higher price than necessary, the language we would suggest could be used in another case and passed on by this Court, is the following: Paid a higher price than necessary to move the log market to higher levels than otherwise would have prevailed in order to injure competition.
05-381 +++$+++ 41296 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh. But of course, I want to injure competition always when I in fact sell at a lower price that I very much hope my competitor can't possibly meet, indeed would go out of business. I cheer. I would love to get a monopoly. I would love to make a better product, lower prices, et cetera. Do you see the problem? And so what you've told the jury there on that instruction --
05-381 +++$+++ 41297 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But here --
05-381 +++$+++ 41298 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- is that they can find this person guilty even if all he wants to do is so second-guess that market that he gets the logs and will sell them at a huge profit later on in a competitive selling market.
05-381 +++$+++ 41299 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't have a situation here, Justice Breyer, where Weyerhaeuser presented evidence that they were the most efficient and able to pay higher prices. Weyerhaeuser presented no quantitative evidence that it was the lowest cost producer in terms of costs --
05-381 +++$+++ 41300 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What if it were the highest cost producer? Suppose still, they think that by buying these logs we later can make a profit when we resell them on the competitive market. You see, the reason they're coming up with this test is they don't think you can give, the reasoning of it is that they don't think that you can produce a better one. So I'm listening.
05-381 +++$+++ 41301 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, one of the reasons that one can't go in this direction here, Brooke Group was a pricing only case. As the briefs make clear and the decision made clear, if that had been a standard monopolization case it would have been out the door on summary judgment because the defendant was a 12 percent player. They had no prospect of, of attempted or monopolization, a viable monopolization claim. Here we have a situation where Weyerhaeuser's pricing conduct, deliberately and artificially pushing the market up through a variety of mechanisms, was also interconnected and linked to complementary other conduct that we think set the table for the effectiveness of their strategy in elevating the log market that our client was participating in. Bear in mind that, that at JA 901 we have a Weyerhaeuser document showing that very significant foreclosure from their exclusive contracts in the, in Oregon for example, this is a document that shows that 62 percent of the market was covered through either exclusive purchase arrangements between Weyerhaeuser and large landowners, or non-efficiency-based trades were the, were linked to the exchange of the alder sawlogs from that landowner. Only 33 percent according to JA 901 show, in Oregon, was projected to be open market bidding. Weyerhaeuser acquired, when it was then at a 65 percent market share, acquired the dominant seller, a built-in monopsony in British Columbia and it's five, 15 to 20-year exclusive forest licenses. That kind of foreclosure, linked with the anticompetitive behavior they engaged in that was a variety of bidding practices, some of it was overbuying, some of it was manipulating bidding back and forth, and then putting the last bid in terms of that cost on the other side. I think it's important, I'd like to shift to the instruction again, and make the point that Weyerhaeuser never gave either the plaintiff in this case or the district judge the opportunity to consider a different instruction than was given here. And the fact that's demonstratively shown if one looks at page 43 of their opening brief in the Ninth Circuit, in the Ninth Circuit they only took the position in the bulk of their brief that they were entitled to judgment as a matter of law on the basis of Brooke Group. As to the ground or the contention --
05-381 +++$+++ 41302 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you -- do you agree that you couldn't have made it on Brooke Group because they were selling these logs at a profit?
05-381 +++$+++ 41303 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I didn't quite hear that, Justice Ginsburg.
05-381 +++$+++ 41304 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you agree that you could not have prevailed under the Brooke Group test because Weyerhaeuser was, was making a profit on these sales even though it had bid up the price of the logs?
05-381 +++$+++ 41305 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do not agree as to the evidence in this case. We have evidence in this case that we cited to in our brief that when you adjust, as against the Longview mill which our client was literally right next door to, when you adjust for the fact that Weyerhaeuser supplied half of the raw material needs of the Longview mill at way below market transfer prices, when you adjust those to the average price they paid other third parties for logs, the Longview mill ran at a loss for a significant part of the, of the predation period. We do have the evidence in this case to contend --
05-381 +++$+++ 41306 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's ultimately a jury question, I assume.
05-381 +++$+++ 41307 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If Brooke Group is applied --
05-381 +++$+++ 41308 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that question was not put to the jury, right?
05-381 +++$+++ 41309 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. We withdrew the request for a Brooke Group instruction. But to finish my point about the fact that this --
05-381 +++$+++ 41310 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So then, would you be entitled to a remand on that or not, given that you withdrew that instruction?
05-381 +++$+++ 41311 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the Court concludes the Brooke Group applies to this case, then the instruction was incomplete, it was not correct, and we would be entitled to a remand and a chance to retry the case.
05-381 +++$+++ 41312 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what about the recoupment prong, given that Weyerhaeuser doesn't have market power in the selling market and that mills were entering, new mills were coming on line during this period. How would you satisfy the recoupment?
05-381 +++$+++ 41313 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the recoupment is not in the output end of things. The recoupment is the opportunity to drive log costs down to recoup the extra costs you pay during the predatory period. And we had evidence in the record that a former executive from Weyerhaeuser testified that they had used this strategy multiple times, that when it was questioned by some in top management that the head of a division would always say once we either acquire or get rid of a competitor, we will recoup those costs many fold. That's at JA 260, Cliff Chulos. We also had at JA 903 a planning document in 2001 where Weyerhaeuser was showing in that PowerPoint chart the expectation that log prices would be going down in '01, '02, '03, and for every 2 percent change downward it was an extra $2 million in profits to the bottom line. There was no plan to pass on the benefits of those lower input prices to consumers. Obvious consumer lack of benefit in that situation. Also as to recoupment, if you look at JA 831 to 95, which are the year-end financials for the Weyerhaeuser alder mills in Oregon, Washington and BC during a roughly four-year period, you see a monu -- a huge price differential between the prices in British Columbia and those prevailing in Oregon and Washington. We think there was every expectation on management's part to drive the prices down to the levels that prevailed in British Columbia, which works out to about $40 million a year, way way above the amount they were spending in this predatory scheme predominantly in Oregon and Washington, because there is no competition in British Columbia. But I would like to point out that they never preserved the issue of whether or not the standard that the Ninth Circuit in dictum stated was as a whole sufficient to guide the jury as to a definition of anticompetitive conduct. At page 43 of their brief after quoting this paragraph they so criticize, they note, although that statement of the law -- this is 43 of the Ninth Circuit brief, not the blue brief that you have -- although that statement of the law may have been acceptable when Reed Brothers was decided, it is not in the wake of Brooke Group for reasons explained above. The point here is that they never made any charge in the Ninth Circuit that the instruction was flawed independent of Brooke Group. Now we concede, if Brooke Group applies, the instruction was -- was -- is wrong, and the case should be reversed and remanded. But the second point that they try to make in their briefing is not properly preserved. And in fact, I'd like to point out that they contributed to the linguistic framework of this instruction in a very significant way. First --
05-381 +++$+++ 41314 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm losing you. What's the second point that they're trying to make besides the fact that this didn't conform to Brooke Group?
05-381 +++$+++ 41315 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they have also asserted in their briefing that as an independent ground for reversal, the instruction was so standardless that the verdict cannot stand.
05-381 +++$+++ 41316 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Regardless of Brooke Group.
05-381 +++$+++ 41317 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But isn't that something that we've got to consider because if, if we disagree with them on Brooke Group, we've got to do it in the course of making a choice between a Brooke Group instruction and something else, and the only something else we've got right now is what we have in this case and we ought to, we ought to decide whether in fact that is good enough.
05-381 +++$+++ 41318 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree with that.
05-381 +++$+++ 41319 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so I mean, I think, they may not have made that an independent basis of reversal but we've got to consider it.
05-381 +++$+++ 41320 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree with that, but I would like to point out these facts in terms of the way they contributed to it. They submitted jury instructions just like us based upon the ABA model instructions, theirs are at JA 97 to 122, that used the words outside of this paragraph that we are talking about, fair, reasonable or necessary 18 times. They showed up 19 times in those instructions. In their opening and closing --
05-381 +++$+++ 41321 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'll stipulate to that.
05-381 +++$+++ 41322 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
05-381 +++$+++ 41323 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Assuming they don't have a leg to stand on in complaint, we have still got to face what the alternative to a Brooke Group kind of instruction is. And -- and however they may have tried their case, we've still got the same problem.
05-381 +++$+++ 41324 +++$+++ TRUE +++$+++ MR. HAGLUND +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. And I suggest that you look to the type of formulation I gave a little earlier where you're looking at how much did the defendant push the market to levels that are above where it otherwise would have been. It's not too far from the test that is proposed by the State at page 29 of their brief where they suggest it's, that the conduct be measured by whether it raised the price that the buyer's rivals had to pay for the input beyond a level that could be justified or explained by other market or exogenous factors and substantially affected the ability of the buyer's rivals to compete for the input. The eight States, all of which have concerns both as sellers into these vulnerable resource markets and for citizens and companies in their own resource State, laden States, whether it's mineral, whether it's agriculture, they have that concern and they've offered that test that's not too far from what I posited as a way to improve the instruction that Weyerhaeuser invited. I'd like to make one further point on that subject and that is, if you look at the opening statement of their counsel, the closing, he used that very language. They were going to put on witnesses who would all state that they never bought more than they needed, they never paid more than necessary. That same litany was put to 13 different witnesses. Thank you.
05-381 +++$+++ 41325 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Haglund. Mr. Pincus, you have two minutes remaining.
05-381 +++$+++ 41327 +++$+++ FALSE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. Just a couple of points. With respect to the story of how this instruction came to be, in fact it closely resembles some language that was requested by respondent that appears on page 93A of the joint appendix which refers to a test that paying a price for logs with higher than market value unnecessarily to drive out or injure competition. So I do think that this is an instruction that comes from respondent. It's true that we did not request a Brooke Group instruction because the district court had ruled that Brooke Group didn't apply at the summary judgment phase. We did object to the instruction proposed by the district judge on the grounds that it did not conform with Brooke Group in order to preserve our argument here and we believe that that objection gives the Court the power to adopt an intermediate rule, but it isn't exactly what we requested and there are decisions in the court of appeals of to that effect. With respect to the question about purchasing more logs than they needed, as we say in our briefs we think that that claim can't really be separated from the predatory pricing claim here because the argument is that by purchasing more logs the price was driven up and it's the increased price, that's the impact that respondent complains of. So creating a separate overbuying claim that relies on price for impact would be the same thing as saying on the sell side you can have an overselling claim regardless of whether you flunk the Brooke Group standard with respect to prices, and that's just going to undercut the certainty that this Court has prescribed. With respect to the document that Mr. Haglund cited, 901A about the inputs, that document is described in testimony in the joint appendix at 571A to 573A, and that's a hypothetical look at what the market might would look like if current, past purchasing patterns had continued. It's not a document that in any way says that the various sources of log supply were locked up and it doesn't indicate that, and in fact there's nothing in the record to indicate what the percentage of logs were that were available to Weyerhaeuser by long-term contract, in contrast, as I said, to the testimony in the record that indicates that respondent got between 30 and 50 percent of its logs through those long-term sources. With respect to the proper disposition of the case, in the Boyle case this Court made clear that where there's no, not sufficient evidence in the record -- I'm sorry, my time is up.
05-381 +++$+++ 41328 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You can finish your sentence.
05-381 +++$+++ 41329 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Where there's not sufficient evidence in the record to go to the jury under the proper jury instruction, the proper outcome is for the claim to be dropped from the case.
05-381 +++$+++ 41330 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Pincus. The case is submitted.
05-409 +++$+++ 41334 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Kircher v. Putnam Funds Trust. Mr. Frederick.
05-409 +++$+++ 41336 +++$+++ FALSE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: This case concerns the appealability of remand orders under the Securities Litigation Uniform Standards Act, or SLUSA. Our position is that the general rule prohibiting appealability applies in this case for three reasons. First, section 1447(d) has been consistently construed to prohibit appeal of remand orders based on a district court's lack of subject-matter jurisdiction. That rule governs even if the district court incorrectly construes a subject-matter jurisdiction provision. Second, SLUSA section 77p(c) concededly defines removal jurisdiction and it does so by incorporating the criteria for preemption. Thus, the court's subject-matter jurisdiction is coextensive with those cases that SLUSA preempts. And third, Congress knows how to make remand orders appealable when it wants to, but SLUSA contains no provision for appellate review of remand orders. Under Respondent's approach, the Federal courts would obtain jurisdiction in cases not subject to SLUSA preemption, but there's no indication that Congress intended that result.
05-409 +++$+++ 41337 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Under your approach, Mr. Frederick, the Federal court would decide the principal substantive issue in the case, the principal legal issue, nonfactual perhaps, and then decide that is has no jurisdiction if it finds that it doesn't come within -- within (c), sends it back to the State court. Is -- is the State court bound by -- by that finding by the Federal court?
05-409 +++$+++ 41338 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it's not.
05-409 +++$+++ 41339 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why not?
05-409 +++$+++ 41340 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because under this Court's longstanding precedent, for there to be preclusion, there must be a right of appellate review. So if you agree that the general rule of 1447(d) applies and there is no right to appeal the remand order, then the basis on which that order is -- is founded, the preemption of SLUSA is open for the State court to address on remand.
05-409 +++$+++ 41341 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And for this Court, I assume, at least theoretically, on petition for certiorari?
05-409 +++$+++ 41342 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, through the State court system.
05-409 +++$+++ 41343 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what was the basis then, or was there a basis, for Judge Easterbrook's comment, it's now or never?
05-409 +++$+++ 41344 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He was wrong. He was wrong. The issue of preemption under SLUSA can be raised by the defendants on remand in the State courts. It can be litigated. It's important to note that the removal provision says, shall be removable. It's at the defendants' discretion whether they want to ask the Federal court to test whether SLUSA preempts the case or to keep it in State court for the State court to apply SLUSA and thereby hold that the class action would be unsustainable.
05-409 +++$+++ 41345 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do we have a standard --
05-409 +++$+++ 41346 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do we have any cases that -- that are like this one which are like this one which involve not just res judicata of -- of the -- of the finding by the Federal court, but the law of the case? I mean this is the same case when it's remanded. You've already had a court that has found a particular element with respect to this case. It seems to me highly unusual to have the same issue in the same case then decided by a second court. Do you have any -- any parallel?
05-409 +++$+++ 41347 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are cases in the lower courts, Your Honor, in the complete preemption area that have held that a removal based on the doctrine of complete preemption was not sustainable because the case was not completely preempted, but holding that preemption, implied conflict preemption, can be applied by the State courts on remand. And it's important to note here that there --
05-409 +++$+++ 41348 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You don't have any case of ours, though.
05-409 +++$+++ 41349 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not that I'm aware of, but what the City of Waco case says, upon which they base their reliance, is that the reason why there was appeal of that particular order was because it would be held preclusive. Here, it would not be held preclusive because there is no right of appellate review.
05-409 +++$+++ 41350 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, is -- is there -- correct me if I'm wrong, but I -- I had thought there was an -- an easier answer, and that is that the -- the decision that ultimately the State court will make, as to whether there is or is not preclusion, is not identical to the decision that the Federal court -- that the district court makes on the motion for remand because on the -- and this is the way I was going about it. On the motion for remand, all a Federal court decides is whether, in fact, there is a colorable basis for the removal. When it goes back, if it does go back, to the State court, there will be an opportunity not to go merely to the stage of colorable basis, but to litigate it ultimately on the merits. So -- so that what we have is a -- in effect, a kind of quick-look finding at the Federal level, and that does not preclude a -- a complete development of the issue on the merits in the State court, if that's where it goes.
05-409 +++$+++ 41351 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is certainly true, although I would take issue with the notion of there being a colorable claim. I don't think that the SLUSA removal is analogous to the Federal officer removal statute where the statute itself says the defense has to be under color of law, and this Court in the Mesa v. California case said that phrase is where the colorable claim creates article III jurisdiction.
05-409 +++$+++ 41352 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, but do you take the position --
05-409 +++$+++ 41353 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I -- I don't -- sorry. If I could just finish. I don't contest the rest of it, which is that on remand, preemption can be developed through amended pleadings, through facts that are developed --
05-409 +++$+++ 41354 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but you must take issue with the this is only a quick determination, unless you also agree with -- disagree with Justice -- Judge Easterbrook when he said, the decision for the Federal court is only two things. It's either remand or dismiss the action. That is, the Federal court under no circumstances will keep this case for trial. Either it will dismiss it outright or it will remand.
05-409 +++$+++ 41355 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, under their theory, though, Justice Ginsburg, the court could, because of their construction of the removal jurisdiction provision, would retain jurisdiction.
05-409 +++$+++ 41356 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but that was not -- certainly not the Seventh Circuit's understanding.
05-409 +++$+++ 41357 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, and we think that that position that they have advanced in this Court is incorrect, and I would agree with your postulate that what the Federal district court does and it has jurisdiction to do is to decide whether preemption applies and then remand the case, or if preemption does apply, to dismiss it.
05-409 +++$+++ 41358 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Whether preemption applies or whether there's a colorable basis for saying? I thought you were saying that the district court decides whether preemption applies.
05-409 +++$+++ 41359 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does -- it does do that. It's actually --
05-409 +++$+++ 41360 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you don't -- you don't agree with what Justice Souter was saying, that all it's -- all it's making is a colorable basis.
05-409 +++$+++ 41361 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I thought I expressed my position there.
05-409 +++$+++ 41362 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In other words, you take the position that -- and -- and you may well be right, but I mean, you take the position that there is a complete determination on the merits at the -- at the stage at which the district court rules on the motion to remand.
05-409 +++$+++ 41363 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's -- on the basis of the record then before it.
05-409 +++$+++ 41364 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
05-409 +++$+++ 41365 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-409 +++$+++ 41366 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you say on the basis of the record then before it. I mean, they can -- they can -- can they put in any evidence they want?
05-409 +++$+++ 41367 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The court always has the authority to have evidence taken to determine its own jurisdiction. That's routinely done by district courts.
05-409 +++$+++ 41368 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Frederick, as I understand it, at least the Seventh Circuit's fix on this case was that the Federal courts have adjudicatory authority to do one thing and to do that one thing finally, that is, to decide whether this is a case that cannot be brought in any court or whether it's a case that Congress has left over for the States still to deal with. That was the whole theory of the Seventh Circuit, that this is no quick look. The -- the Federal courts are making a final determination. And I think that would exclude what Justice Souter has suggested.
05-409 +++$+++ 41369 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I agree with you that that is how the Seventh Circuit described the opinion and what -- what the adjudicatory authority was, and that is why we take issue with the Seventh Circuit. We do think that the State court on remand has any issue that the defendants want to raise before it. All that the Federal district court has done is to decide that -- that there was no basis for a SLUSA preemption because the requisites of subsection (b) had been satisfied. But I want to point out that the issue before you is whether or not that decision, correct or not, is appealable. And what is important in the error of the Seventh Circuit was that they held that that decision was appealable, and under the Thermtron rule, as applied in Gravitt and Things Remembered, even a district court decision that is erroneous in its construction of a subject-matter jurisdiction provision is still a remand based on subject-matter jurisdiction and therefore falls within the four corners --
05-409 +++$+++ 41370 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it doesn't -- what Thermtron says is that we read (d) in conjunction with (c). Now, the reason that (c) is relevant here is because it says, if at any time before final judgment it appears that the district court lacks subject-matter jurisdiction, the case shall be remanded. Presumably what (c) is thinking of are cases where subject-matter jurisdiction is not the whole issue before the -- the Federal court. It's thinking that subject-matter jurisdiction in certain instances, like a defect in a removal proceeding, is something that the -- that the Federal court could get to prior to a final judgment. But here, the final judgment in the Federal court is the very question of whether this is preempted or not. And therefore, I guess what Easterbrook is thinking is that that isn't the kind of subject-matter jurisdiction dismissal to which (c) refers. Consequently, it is not within the scope of (d)'s no appellate review rule.
05-409 +++$+++ 41371 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And our problem with that, Justice Breyer, is that all eight district court decisions here thought that they were deciding subject-matter jurisdiction, and they thought that because Federal preemption ordinarily is not a basis for removal. And --
05-409 +++$+++ 41372 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. It's no doubt that all the lower courts then would be wrong. But the reason he says that they are wrong is because they looked at the word, subject-matter jurisdiction, in (c) without realizing that the reference in (c) is a reference to instances where subject-matter jurisdiction is not the whole issue; i.e., it's something other than the final Federal court decision.
05-409 +++$+++ 41373 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it is --
05-409 +++$+++ 41374 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That would be the argument he's making. I would like your response.
05-409 +++$+++ 41375 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, functionally it is the equivalent of codifying the complete preemption doctrine, which is how SLUSA actually works. And in the complete preemption cases, Beneficial Bank is what spells out this --
05-409 +++$+++ 41376 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I agree with you. You would also have to say that the same rule applies, one, to the complete preemption cases and, two, to sovereign immunity determinations under the Foreign Sovereign Immunity Act. But he would say that may be so, but nonetheless, Judge Easterbrook would say, well, so be it. That's what Congress intended. That is wrong to deprive someone of a right to appeal when it turns on a misreading of (c) and an incorporation of the misreading into (d).
05-409 +++$+++ 41377 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be a strikingly odd result, though, for this Court to reach that, given that Congress has clearly provided for appellate review of remand orders in other contexts, including in the Class Action Fairness Act, under tribal property disputes, the FDIC, the RTC, and specifically in 1447(d) itself, civil rights cases. So Congress knows how to do this if that's what Congress had intended.
05-409 +++$+++ 41378 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but isn't the -- isn't the argument --
05-409 +++$+++ 41379 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Frederick, can I ask you a question?
05-409 +++$+++ 41380 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that in those cases in which Congress has provided, we -- we are not dealing with a situation in which the -- the removal or not, the preemption or not is the end of the litigation. Here, we've got a case in which there -- there are basically two kinds of preemption, as -- as you've recognized. There is -- there is regular preemption, on the basis of which there may or may not be a removal, and there is a preclusion of any litigation whatsoever. And in the cases in which Congress has made specific provision, were they -- the instances -- were they instances in which it was the second issue which precluded any litigation whatsoever? The answer may be yes. I just don't know.
05-409 +++$+++ 41381 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that the closest analogy, again, is in the complete preemption area where the Court has held that, you know, the removal is based on complete preemption, and if that is found by the district court, that functionally terminates the litigation. But I would point out that even in the Federal officer removal statute, there's no appellate review of a district court's decision that the Federal officer statute was improperly invoked to remove an action. So what the securities defendants here are asking for is something Congress didn't even give to Federal officers.
05-409 +++$+++ 41382 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let me ask you one preliminary question just to be sure I understand the case. Is it your view -- when the petition for removal was filed, did the district -- Federal district court have jurisdiction to decide the preemption issue in your view?
05-409 +++$+++ 41383 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It had the -- it had the power to determine whether SLUSA applied.
05-409 +++$+++ 41384 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right.
05-409 +++$+++ 41385 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that's what section 77p(c), when it says, as set forth in subsection (b), is referring to. So the district court analyzed those factors and it came --
05-409 +++$+++ 41386 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So the -- there -- there was jurisdiction in the Federal court to entertain the removed case.
05-409 +++$+++ 41387 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-409 +++$+++ 41388 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then -- then why -- then how can you say the -- the remand was based on a lack of -- of jurisdiction?
05-409 +++$+++ 41389 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the courts held that the requisites of SLUSA of subsection (b) had not been satisfied.
05-409 +++$+++ 41390 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but they -- they had held it acting on an interpretation of SLUSA before our decision in Dabit.
05-409 +++$+++ 41391 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-409 +++$+++ 41392 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And isn't it at least possible that they would -- would have decided that issue had they reviewed --
05-409 +++$+++ 41393 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is possible, but that's why the issue of the underlying district court's determination is not before you. The issue before you is can appellate jurisdiction be asserted to review that decision. But I would further point out, Justice Stevens, that the Dabit court assiduously avoided the kinds of claims that are present in our case, which is whether or not negligence can be asserted against the securities defendants for failure to fair-value price. Dabit was strictly a fraud case, as this Court made clear. This is a negligence case, and there is a part of subsection (b) which makes very clear that what SLUSA is getting at are claims based on fraud. But even if you were to disagree that the -- the district court had, you know, an alternate basis that had not been properly ventilated or addressed by the district court because it went off on the holder theory that this Court rejected in Dabit, you still wouldn't have jurisdiction to decide that because of the general rule of 1447(d), which provides, as I have stated, that a court doesn't have jurisdiction to review -- appellate review of a remand order.
05-409 +++$+++ 41394 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How --
05-409 +++$+++ 41395 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Frederick, will -- would you please explain something to me that you just said? You said that our complaint isn't about fraud. It isn't about deception. It's about negligence. But the Seventh Circuit reported and seemed to have no doubt about it that the complaints in this set of cases were based on allegations of deceit and manipulation, not mismanagement.
05-409 +++$+++ 41396 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's incorrect, Justice Ginsburg. We've put the complaints before you. They are in the joint appendix. We have cited every paragraph in which those claims are asserted. The Seventh Circuit based its decision about that on a misunderstanding of the colloquy at oral argument in the Seventh Circuit, which Respondent's have recited the Web site. You can listen to the argument yourself. It did not contain any type of concession by counsel for the class that these claims were anything other than the negligence claims, which on the four corners of the complaint, they assert themselves to be.
05-409 +++$+++ 41397 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The -- the Seventh Circuit said precisely, in particular, they did not argue in their briefs and did not maintain at oral argument, despite the court's invitation that their suits allege mismanagement rather than deceit or manipulation. So is that totally wrong, that you did do it -- mention it in your briefs?
05-409 +++$+++ 41398 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The briefs recounted what the claims are, which are negligence claims.
05-409 +++$+++ 41399 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then how could the Seventh Circuit have gotten it that wrong?
05-409 +++$+++ 41400 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the Seventh Circuit made five crucial errors, that it was wrong to describe the district court as saying that removal was proper. The district court didn't say that. They were wrong to say that the remand was based on section 77(d)(4). That's not what the district court did. They were wrong to evaluate section 77p(c) without even reciting or construing the language. They were wrong to say that SLUSA's substantive decisions, quote, must be made by the Federal rather than the State judiciary. That's not correct. And they were wrong to say that it was now or never for appellate review whether an action under State law is preempted.
05-409 +++$+++ 41401 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it -- it might have been that prior to Dabit, you would have been emphasizing -- or whoever would have been emphasizing the -- the fraud character of -- of the claims, and after Dabit, perhaps the negligence boat is the only one left for you.
05-409 +++$+++ 41402 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the point, Mr. Chief Justice, is that this is on a basis of subject-matter jurisdiction. It's not waivable and we're permitted to say that a district court decision based on subject-matter jurisdiction can look at the relevant claims. It is true that the perception at the time was that these holder theories evaded SLUSA. All of the courts up until that time of Kircher II had held that, and that's not an unreasonable position for a lawyer to take. Now, certainly after Dabit, those claims are foreclosed where there are holder fraud claims. We do -- we obviously don't take issue with that. But here, the claims in the complaint themselves are based on negligence, and it is certainly fair --
05-409 +++$+++ 41403 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Maybe this is not a fair -- how likely is it, given our determination in Dabit about how Congress intended to treat fraud claims, that negligence claims are going to fare any better?
05-409 +++$+++ 41404 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this Court in the Santa Fe case, Mr. Chief Justice, said that negligence claims are not within 10b-5. Those are claims that are properly brought under State law.
05-409 +++$+++ 41405 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would it make sense --
05-409 +++$+++ 41406 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So if the -- if the State court applies Dabit and Santa Fe, it will come to the conclusion that the holder theory is preempted under Dabit, but the negligence theory is not preempted under the Santa Fe case.
05-409 +++$+++ 41407 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does it make -- what's worrying me in the back of my mind is we have decided Dabit since this case was brought. Then I thought, well, could we remand this case in light of Dabit. Now, if we did that, we wouldn't decide the issue that you all want decided, and we'd let this, unfortunately, slightly confused situation continue to exist. What would be the consequence of that? Are there -- are there a lot of cases, or is this something that comes up often?
05-409 +++$+++ 41408 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does come up often because the securities bar, every time they get a district court decision that they don't like, they want to appeal it, notwithstanding the general bar of appealability. So this issue is something that is very important to both sides in the development of this law. But I would further point out, Justice Breyer, that as this case has come up, your -- your view would have to be based on do you have appellate jurisdiction, and our submission is that you don't, subject for purposes of remanding the case in light of Dabit.
05-409 +++$+++ 41409 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm trying to think. It seems if you -- it ought to work out similarly to what happens in a case where there's a Federal issue that you remove under. Now you've removed. And there also is a State issue pendent. Now, what the judge does is he says, defendant, you win on the Federal issue, and I'm going to send this thing back now, remand it, because I don't think I want to maintain here the State issue. And so it's a remand order. The case is remanded. Now, I think you get an appeal on your Federal issue there. And then -- then why shouldn't -- if that's so, shouldn't this work out the same way?
05-409 +++$+++ 41410 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in the Cohill case, this Court addressed the situation where there was a Federal dismissal of the claims and the -- and the Federal district court remanded the State claims for consideration under -- under State jurisdiction. And the Court had internal discussion about whether or not, you know, there was appealability of what was left in the case. Our -- our position is that ordinarily a dismissal of a Federal claim is an appealable matter and that that is subject to appeal, but that a remand decision, which is what the district court made in this case, is not.
05-409 +++$+++ 41411 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Shouldn't it work out the same?
05-409 +++$+++ 41412 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it shouldn't and the reason it shouldn't is because Congress has decided that it shouldn't. Congress has decided that there is a paramount interest in having decisions made on their merits, which is why there is not appellate review of remand orders. That's --
05-409 +++$+++ 41413 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But aren't you -- aren't you urging a very strange result that the -- the decision on the merits of the SLUSA preclusion issue should be decided by the State courts when the whole purpose of -- of that provision was to take matters out of the State courts because there was a view in Congress that they were not being handled properly there?
05-409 +++$+++ 41414 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Alito, to the contrary. They are being decided by Federal district courts. They're just no subject to appellate review, and it was because --
05-409 +++$+++ 41415 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought you said the merits of the issue was not going to be decided by the Federal court.
05-409 +++$+++ 41416 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Well, the -- the merits of the case are going to be decided by the State court. The question of whether there's a Federal defense based on SLUSA in the first instance is decided by the district court in remanding the case, and then if there becomes a basis through evidence or amendment to the pleadings or whatnot, if the defendants want to re-raise their SLUSA preemption argument, they are certainly free to do that.
05-409 +++$+++ 41417 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So he's right that it's ultimately not decided by the Federal court.
05-409 +++$+++ 41418 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it is decided.
05-409 +++$+++ 41419 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're saying the Federal court makes a decision which is not binding in the case. That decision can be undone by the State court.
05-409 +++$+++ 41420 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is decided by the Federal court within the confines of what Congress has determined based on its wording of SLUSA and its fact that, as this Court has said in Things Remembered, the Congress is presumed to accept the general rule of nonappealability unless it says so.
05-409 +++$+++ 41421 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, I understand that. Can you answer my question? You -- you were saying that the -- that the decision by the Federal court on this issue is not final.
05-409 +++$+++ 41422 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm saying that it is final for purposes of remand.
05-409 +++$+++ 41423 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, but it is not final --
05-409 +++$+++ 41424 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that in terms --
05-409 +++$+++ 41425 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- for purposes of the lawsuit.
05-409 +++$+++ 41426 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because -- because what SLUSA does is it has an interplay between the removal jurisdiction provision and it says, as set forth in subsection (b).
05-409 +++$+++ 41427 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I understand that, but as long as you say that, the point that -- that Justice Alito makes is -- is well taken, that we -- we thought that this was a -- a statute designed to have the Federal courts determine this issue, and it turns out that the Federal court just takes the first swing at it, and if a State court disagrees, it's -- it's free to do so.
05-409 +++$+++ 41428 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is a policy choice that Congress made when not providing a special mechanism for appellate review of remand orders.
05-409 +++$+++ 41429 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course, if the Federal district court says there is preclusion, therefore, case dismissed, that would be reviewable.
05-409 +++$+++ 41430 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, and that's where the uniformity of decisions would come from, the reviews by plaintiffs who's had their -- who have had their cases dismissed. Those are subject to appeal. I'd like to reserve the balance of my time.
05-409 +++$+++ 41431 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Frederick. Mr. Perry.
05-409 +++$+++ 41433 +++$+++ FALSE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: It was quite a litany of errors that Judge Easterbrook is alleged to have committed in this case. I would submit, Your Honors, he committed none. Judge Easterbrook correctly recognized that the only issue put into play by these Petitioners was the Dabit question. In their motion to remand this docket, docket number 20 in the Kircher case, they said, it is the fourth requirement, the in-connection-with requirement, which is at issue in the present case. We pointed out in every subsequent brief that they had waived all other issues, and they never responded to that waiver. It is that, Justice Ginsburg, to which Judge Easterbrook was responding when he said plaintiffs never argued in their briefs and they did not maintain an argument that any other requirement --
05-409 +++$+++ 41434 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could we just -- can I ask you suppose they didn't waive it? Would their -- would their position have any merit?
05-409 +++$+++ 41435 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. Their complaint rests on two factors that are clearly within SLUSA. First, misrepresentations. They claim that our prospectuses misled them into investing in these mutual funds and then --
05-409 +++$+++ 41436 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me put the question just a little differently. Suppose the -- in Dabit, we decided that the distinction between the purchaser-seller rule and the scope of 10b-5 did not prevent SLUSA from preempting. But does SLUSA preempt a claim that is beyond the scope of rule 10b-5?
05-409 +++$+++ 41437 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, SLUSA precludes precisely what subsection (b) says it precludes, which is beyond the scope of 10b-5. For example, 10b-5 requires scienter. SLUSA has no scienter requirement. So a non-scienter-based State law claim is still precluded under SLUSA. What SLUSA requires is a misrepresentation, omission, manipulation, or deceptive device in connection with the purchase or sale of securities. Period. All of that is present in this complaint. They allege omissions.
05-409 +++$+++ 41438 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they can always amend the complaint and pare it down and say now -- we -- we complained all along about negligence. Now, Judge, we are complaining about mismanagement on the defendants' part, nothing more. No manipulation. Cut out -- they could have such a complaint, and would that be precluded if -- if they started afresh in the State court and they said, we are complaining about mismanagement? We're not charging anyone with fraud or deception. Couldn't -- isn't that a viable claim?
05-409 +++$+++ 41439 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, in this case they could not amend their complaint because the Federal jurisdiction is determined on the complaint that we removed. And at the time of removal, it was clearly precluded by SLUSA. And the Court's cases are very clear that a plaintiff may not amend. For example, you can't lower the amount in controversy below $75,000 to get back to State court. At the time of removal, the Federal court both had jurisdiction over this case and it was clearly precluded under SLUSA.
05-409 +++$+++ 41440 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and I understand your submission -- and perhaps it's distinct from the Seventh Circuit holding in this respect -- to suggest that those are different standards, the standard for removal and the standard for preclusion.
05-409 +++$+++ 41441 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think we're the same as the Seventh Circuit. We may have articulated it slightly different, but yes, they are different standards.
05-409 +++$+++ 41442 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So that under your view at least, it's possible that you could have removal jurisdiction and then determine that the -- the case is not, in fact, preempted.
05-409 +++$+++ 41443 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-409 +++$+++ 41444 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so that an entirely State law case would proceed in Federal court.
05-409 +++$+++ 41445 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, let me give you an example. The answer is yes. In a case in which there is removal jurisdiction because the defense is colorable, there may be a factual issue as to whether the in-connection-with requirement is met. In 10b-5 cases, it's not uncommon that that is a factual question, not a legal question. The Federal court would then retain jurisdiction to decide that question on summary judgment, at trial, or whatever. It won't know until it finally disposes of the --
05-409 +++$+++ 41446 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there another instance in which we've upheld Federal court jurisdiction over a purely State law cause of action, apart from the Federal officer situation?
05-409 +++$+++ 41447 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You have the Federal officer situation and you have the FSIA, Foreign Sovereign Immunities Act situation, Your Honor.
05-409 +++$+++ 41448 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But those are the only two.
05-409 +++$+++ 41449 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
05-409 +++$+++ 41450 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So this would be a pretty unusual creature that you're asking us to sanction.
05-409 +++$+++ 41451 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. It would be precisely the same creature that happens every time Congress makes a case removable on the basis of a Federal defense. Every time Congress does that, which is not very often, the Court has held that the colorable defense is sufficient to invest the Federal court with jurisdiction.
05-409 +++$+++ 41452 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But then, Mr. Perry, there's a whole case. See, what's peculiar about this is Congress says it's not really preemption. I think Justice Stevens pointed that out in Dabit. It is preclusion. It says this action shall not exist. Period. Not as a State claim, not as a Federal claim. And it wanted the Federal courts to monitor that determination. It surely didn't want -- if -- if the State claim is outside that preclusion, didn't want the Federal courts to sit and have a whole trial on what is a non-diverse, no Federal question case. I mean, it just seems -- if you're going to imagine what Congress wouldn't want in the Federal court, that would be it.
05-409 +++$+++ 41453 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, three answers. First, Congress wanted Federal courts to make the decision, not monitor the decision. Second, we agree the Federal court has the power to remand the case. If all that's left is State law claims, the court doesn't have to keep it. And third, that is what -- the regime that Congress set up was designed because there is a risk of error. Some district courts will get some SLUSA preclusion questions wrong. And the question before this Court really is would Congress have wanted those cases to stay in the Federal courts subject to Federal appellate review or --
05-409 +++$+++ 41454 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But now there you must admit that you are departing from Judge Easterbrook because Judge Easterbrook said this statute gives the Federal court adjudicatory authority to do one thing, to decide whether there's preemption or preclusion or, if not, then to remand. So they make -- they make one determination and bow out he said. And you're telling us, no, they don't bow out. They can, if they want to, keep the State law claim and adjudicate it on the merits.
05-409 +++$+++ 41455 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, Judge Easterbrook read section -- subsection (d)(4) to require remand. Petitioners and Respondent's are in agreement in this Court for the first time that (d)(4) does not apply to the remand in this case. It only applies to remands for expressly exempted actions. The -- (d)(4), it says, shall be remanded. The corollary to that, we would submit, is that where Congress recognizes that certain cases shall be remanded, even though they're within the removal jurisdiction, other cases, such as this one, may be remanded. Otherwise, Congress could have said all cases that are not precluded shall be remanded. And -- and, Justice Ginsburg, it's not as counterintuitive as -- as I think Petitioners are trying to make it seem because there may be Federal issues that continue past the preclusion --
05-409 +++$+++ 41456 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. I'm simply asking about the Seventh Circuit's understanding of the case. It says, after making the decision that 77p(b) requires, the district court has nothing else to do. Dismissal and remand are the only options. So Judge Easterbrook or the Seventh Circuit clearly did not think that there was any adjudication on the merits of a State law claim to be made. He said it twice. One is at 14a of the joint appendix, and the other is 11a.
05-409 +++$+++ 41457 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And, Justice Ginsburg, the reason he said that was because of -- of section -- subsection (d)(4), which is quoted in full at the top of page 12a of the petition appendix. That is because the Second Circuit had held that (d)(4) applies to remands in this situation, and both Petitioners and Respondent's in their Seventh Circuit briefing took that position. When we got to this Court and we both looked harder at the statutory scheme, we both realized that we were wrong. Therefore, Judge Easterbrook -- you know, the one mistake he made was the one we led him into making. But that doesn't change the validity of his jurisdictional analysis, which is to say that the only requirement of SLUSA that goes to the jurisdiction on removal is whether this is a covered class action. The elements of the preclusion defense are then the substantive question of Federal law that Congress authorized the Federal court to make, and it authorized the Federal court to make final.
05-409 +++$+++ 41458 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm confused now. You're saying both sides agreed that section 1447(d) does not apply?
05-409 +++$+++ 41459 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Breyer. Both sides agree that SLUSA, section 77p(d)(4) --
05-409 +++$+++ 41460 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Now, then -- then I understand that. What I don't understand is the question about something remaining to be done. What -- what 77p(b) says is the covered class action, I take it, is any private party alleging. And when I see the word alleging, I think you're supposed to look at the complaint to see what they allege, not some other thing about what's going to happen later. But you're telling me that's wrong.
05-409 +++$+++ 41461 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
05-409 +++$+++ 41462 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if you're right that that's wrong, I don't see how you could possibly get out of (c) in 1447(c) which talks about a decision before final judgment, that it lacks subject-matter jurisdiction. Because if you're right, then this is before final judgment, it lacks subject-matter jurisdiction. That's the end of your case.
05-409 +++$+++ 41463 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, I disagree respectfully.
05-409 +++$+++ 41464 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. You have to disagree with -- I guess -- go ahead. Disagree. I'd like to hear the answer. (Laughter.)
05-409 +++$+++ 41465 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If it is a covered class action, that is, 50 plaintiffs and so forth --
05-409 +++$+++ 41466 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-409 +++$+++ 41467 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- it is removable and within the subject-matter jurisdiction of the Federal courts so long as the defendant has presented, either on the complaint or in the removal papers, a colorable defense of preclusion. Only --
05-409 +++$+++ 41468 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, which would have to be a colorable defense that there is an allegation by the plaintiff that falls within (b).
05-409 +++$+++ 41469 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ An allegation by the plaintiff as elaborated on by the removal notice, if necessary, because where Congress has waived the well-pleaded complaint rule, the removal court will look beyond the four corners of the complaint to include affidavits and other materials provided by the defendant. That has always been held the case in -- in the rare instances where Congress has made a Federal defense removable. The Court said that in the Franchise Tax Board case, for example, and it's well supported by history from the 1870's --
05-409 +++$+++ 41470 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I don't think that any of those cases are comparable, in that the removed case is going to be tried someplace. Take a diversity case. The Federal court has to decide -- and it's removed -- whether the parties are really diverse. If it decides that they are really diverse, it keeps the case and it's adjudicated in Federal court. If it decides they're not, the case is adjudicated in the State court. But here, the determination is, is there a claim to be tried anyplace? And if there is preclusion under SLUSA, then it's not a question of, as Judge Easterbrook put a menu, where is -- it's not a where question. It's a whether question. And so that makes -- makes SLUSA quite different from other cases where the -- the case is going to be tried someplace. Here, the decision to be made is, is this going to be tried or not? Is it -- is it a claim or is not a claim?
05-409 +++$+++ 41471 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I entirely agree with you, Judge -- Justice Ginsburg, and I think that supports Judge Easterbrook's opinion. In the where will it be tried case, the lack of appellate review is less important because the merits of the case will go to State court and up through the system, and any Federal issues can reach this case. In the SLUSA case, where the district court erroneously, as we know the district court erroneously did here, denies the preclusion and sends the case back to State court, that is a final determination of Federal law that we submit is not reviewable in State court and can't be reviewed by this Court up on review through the State system. So that --
05-409 +++$+++ 41472 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why do you say it is not -- why do you say that it cannot be examined in State court if there's no appeal in the Federal forum?
05-409 +++$+++ 41473 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, this Court has always held and reiterated in the Munsingwear case that where a collateral estoppel attaches because an issue has been fully and finally litigated in a court of competent jurisdiction between the same parties, that the availability of an appeal --
05-409 +++$+++ 41474 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but the --
05-409 +++$+++ 41475 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- does affect collateral estoppel.
05-409 +++$+++ 41476 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but -- but there is also exceptions to the rule of claim and issue preclusion, and when you don't have an opportunity to appeal because the system doesn't let you appeal, then you can say, Judge, don't give this preclusive effect. I did not have that full and fair opportunity because I was unable to appeal. And I think that that's a solid preclusion law.
05-409 +++$+++ 41477 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, this Court has never held that an appeal is required to give collateral estoppel effect. Therefore, on remand, the court could -- the Madison County State court could give collateral estoppel effect. In fact, I expect Petitioners would argue precisely that. And no decision of this Court stands as a barrier to that. The Court would have to change preclusion law to say that the lack of an appeal is a prerequisite to an approval. I agree with you, Your Honor, that it can be taken into account by a court, but it does not --
05-409 +++$+++ 41478 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And a Nassau County court could say, we're not going to treat that as preclusive. They didn't have a fair chance to appeal. And that would be all right.
05-409 +++$+++ 41479 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And if they came out the other way and said, I am going to treat it as preclusive, because the Supreme Court says you don't have to have a right to appeal, we'd be stuck with that.
05-409 +++$+++ 41480 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you wouldn't be stuck with it. I mean, that would be a Federal preclusion decision and that would ultimately be reviewable here.
05-409 +++$+++ 41481 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that decision would be reviewable here, Your Honor. It's an unnecessary multiple layers of appeals and going through the State system to decide a Federal question that Congress wanted to have decided in the Federal courts.
05-409 +++$+++ 41482 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in any case, you said Easterbrook made only one mistake.
05-409 +++$+++ 41483 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Only one mistake.
05-409 +++$+++ 41484 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But he made another one when he said, it's now or never for appellate review. That preclusion question could come to this Court if it went -- the case went back and the Nassau County said, well, I'm going to follow the Federal court, I'm not going to -- at the end of the road, the preclusion question would be open for this Court to review.
05-409 +++$+++ 41485 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I respectfully disagree with you, Justice Ginsburg. The -- if the State court gave preclusive effect to the Federal court judgment, the preclusion question would be open to question -- the collateral estoppel question would be open to review. But the substance of the remand order would not be. It would still be barred by 1447(d), if Petitioners are right, and this Court held exactly that in the Missouri Pacific Railroad case in 1896 and has never revisited that. So that we cannot get the SLUSA issue up back through the State system. Judge Easterbrook was exactly right. It is now or never, Your Honor. And Congress certainly could not have expected on an issue of this magnitude where it passed a law 3 years after the PSLRA --
05-409 +++$+++ 41486 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now or never. The question is not can you -- is there an appeal or does 1447(d) bar it. The question is whether an action under State law is preempted. And suppose this case had gone along in the Federal -- in the State court, and the defense of preclusion is made in the State court. The State court could certainly decide that question. Nobody removed it. So the State court has competence to decide that question, doesn't it?
05-409 +++$+++ 41487 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly, Your Honor.
05-409 +++$+++ 41488 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And in -- this Court could decide it on review.
05-409 +++$+++ 41489 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In a non-removed case, yes. Petitioners' theory, though, is if this is a 1447(d) bar, and it was removed to Federal court, decided that it was not precluded by SLUSA and remanded it, this Court could not review it directly or indirectly, could not review the issue of SLUSA preclusion decided by the Federal court.
05-409 +++$+++ 41490 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I -- I don't understand that. Why can't it?
05-409 +++$+++ 41491 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And your best case on that is Munsingwear?
05-409 +++$+++ 41492 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. Our case on that, where the Court held exactly that, is Missouri Pacific Railroad v. Fitzgerald.
05-409 +++$+++ 41493 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, the Missouri Pacific case.
05-409 +++$+++ 41494 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was that a case where there was no possibility of reviewing the decision of the court of first instance?
05-409 +++$+++ 41495 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. It was a case --
05-409 +++$+++ 41496 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On -- on the merits of the issue as opposed to diversity?
05-409 +++$+++ 41497 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ On the merits of the final judgment in the case, correct, Your Honor.
05-409 +++$+++ 41498 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And why --
05-409 +++$+++ 41499 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In other words, if -- I mean, it's awfully surprising -- I think that's why you're getting this resistance -- that there's an issue in a case, does -- is the -- the State action preempted or not. They've never had an appeal. So they get it tried. The whole case is tried out, and then the -- some State court says, in our opinion it is preempted. But they can't decide that. They can't decide it because there was a Federal judge who said the opposite in the same case before the case was final.
05-409 +++$+++ 41500 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, I think the State court could decide that. It's not --
05-409 +++$+++ 41501 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if they don't -- and if they refuse to decide it, why wouldn't this Court say, this is the same case? There is only one case. It isn't over yet, and we're reviewing that, and we think that district judge was wrong. We think that Federal district judge never read Dabit, which isn't surprising since it was decided after he wrote the opinion. (Laughter.)
05-409 +++$+++ 41502 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, we would certainly hope that if Petitioners were to prevail on the 1447(d) issue, this Court would make clear both that we could relitigate the question to State court and bring it to this Court. What we are saying is under the current state of this Court's law, laid out in our brief and not challenged in any regard by Petitioners, that is not obviously the case, so that we are left with the fact that a State court could give preclusive effect to an obviously wrong Federal judgment that could not be reviewed in this Court.
05-409 +++$+++ 41503 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you're saying we would have to overrule Missouri Pacific?
05-409 +++$+++ 41504 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think you would have to clarify at least that Missouri Pacific does not apply to SLUSA removals and remands, Justice Souter.
05-409 +++$+++ 41505 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is part of the dynamic here, Mr. Perry, that if this goes back to the State court, that affects the dynamics of the litigation because you now have a class action that has to proceed, and that a large part of the litigation strategy in these cases is determined by whether or not there's going to be a full trial on the merits of the class action to effect a settlement, and so forth, so that Congress wanted to have this reviewed quickly and in the Federal courts?
05-409 +++$+++ 41506 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, Your Honor. And --
05-409 +++$+++ 41507 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask this question? Because I hadn't, frankly, realized the importance you attach to the Missouri Pacific case. And the way you describe it as saying that the -- the State court cannot be held to have decided against a Federal right -- well, anyway, the -- the point is there are two things that are decided by the Federal court when it remands a case. One, there was no preemption, and two, therefore, there shall be a removal. Now, as I understood the principle underlying that case, the -- the correctness of the remand could not be reviewed. That's litigated. But could not the correctness of the reason given for the remand, namely there was no preemption, be removed by us on certiorari?
05-409 +++$+++ 41508 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not under Petitioners' theory, Your Honor, because their theory is that the inquiries are completely and totally coextensive. That the jurisdictional inquiry, the -- the remand inquiry is precisely the same as the preclusion inquiry. Our position is that --
05-409 +++$+++ 41509 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Under their theory, but it seems to me very strange to say that we could not, when we do get the case on a petition for certiorari -- couldn't review whether it was -- whether it was in fact preemption.
05-409 +++$+++ 41510 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I'd submit that it's very strange that this would not be just reviewable straight up through the Federal system, as Judge Easterbrook and the Seventh Circuit correctly held.
05-409 +++$+++ 41511 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the reason is there are two separate questions. They just happen to be identical. But I mean, the State court isn't going to worry about whether removal is appropriate or not. It doesn't have to answer that question, but it may well have to answer the question whether it's preempted. It happens to be the same analysis, at least under a reading of the statute, but that doesn't meant that you -- that just because a review of the removal decision -- the remand decision is -- is precluded, that review of the preemption decision is precluded.
05-409 +++$+++ 41512 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that -- that may well be a fair distinction of the Missouri Pacific case. We come to the Court today with the law as it stands and not knowing whether such a distinction will be drawn in the future --
05-409 +++$+++ 41513 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's so odd.
05-409 +++$+++ 41514 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the Seventh Circuit.
05-409 +++$+++ 41515 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose -- suppose the -- it came up under the Foreign Sovereign Immunities Act. The district court judge remands the case. In his opinion Romania is not a country. That's what he thinks. Never heard of it. (Laughter.)
05-409 +++$+++ 41516 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So -- so it goes back to the State court and the State court says, yes, that's right. We've not heard of Romania either. It's not a country. All right. Now, you're saying there we are for all time. Everybody is stuck with this holding.
05-409 +++$+++ 41517 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
05-409 +++$+++ 41518 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that right? Maybe that's why I'm so surprised that such could be the law.
05-409 +++$+++ 41519 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If -- if it works the same way with SLUSA, such could be the law. The Court certainly has the opportunity to clarify that. Again, I'll return to the simpler way --
05-409 +++$+++ 41520 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're -- you're positing a -- a State court that's going to, by golly, give that Federal decision preclusive effect even though, say, the Restatement of Judgments says -- now if a decision didn't -- if there was no opportunity for review, then that's a ground for refusing preclusive effect.
05-409 +++$+++ 41521 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And in -- and in Munsingwear, Your Honor, the United States cited that precise provision of the Restatement of Judgments to this Court, and six Justices of this Court held, no, if there's no appeal, we are still going to give this judgment collateral estoppel effect. Certainly a State court would not be unreasonable in following this Court's lead, since this Court has never retreated from that statement.
05-409 +++$+++ 41522 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought Munsingwear was about mootness.
05-409 +++$+++ 41523 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, it was about mootness and the result of the -- the Government's complaint there was that it was going to have to live with the collateral estoppel effects of the judgment. One of the arguments they made was, well, because we can't get an appeal, we won't be bound, and the Court disagreed with that en route to saying, and to avoid that problem, precisely that problem, you should have asked for vacatur. But since the Solicitor General didn't do it, the Court -- the decision stood and it had collateral estoppel effect. That -- that is the holding of Munsingwear, Your Honor.
05-409 +++$+++ 41524 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in -- in any case, Munsingwear turned on -- not on the availability of -- of an appeal generally, but on the mootness of the case. In other words, Munsingwear said, look, your case disappeared, and the -- the only way to get rid of the order you don't like is -- is vacatur. And if you didn't take that opportunity to get rid of it, then the -- the decision that was made survives, and that gets preclusive effect. It -- it doesn't -- Munsingwear would not apply of its own force in this case.
05-409 +++$+++ 41525 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Munsingwear reaffirmed Johnson v. Wharton which said that where Congress takes away the right to appeal, there is still collateral estoppel effect of the district court judgment. That -- that was the previous decision that Munsingwear affirmed.
05-409 +++$+++ 41526 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But not if the litigant asks to have it vacated under Munsingwear, the litigant would be entitled to have it vacated. So it was a foot fault and the -- the Court held the counsel to the mistake that had been made.
05-409 +++$+++ 41527 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the -- the holding of Munsingwear is that Johnson v. Wharton is good law, and a court need not give -- may give preclusive effect to a case without an appeal.
05-409 +++$+++ 41528 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel --
05-409 +++$+++ 41529 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the Court would like to change that law, it's -- it's up to this Court, but that's how we come to this case.
05-409 +++$+++ 41530 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, if you -- on the removal question, if there's a dispute about whether it's a covered class action, dispute about the number of people involved, the dollar amount, I take it that is litigated at the jurisdictional stage?
05-409 +++$+++ 41531 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, Your Honor. I think --
05-409 +++$+++ 41532 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. But you say that when it gets to whether it's a -- there's a -- involving a covered security, for some reason that can't be litigated at the jurisdictional stage.
05-409 +++$+++ 41533 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. That is the merits determination. And -- and the statute tracks --
05-409 +++$+++ 41534 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm sorry. No or yes? That that is not litigated at the jurisdictional stage?
05-409 +++$+++ 41535 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That the preclusive elements are the merits question of the case, not the jurisdictional question.
05-409 +++$+++ 41536 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is that? There -- it's the same clause. What you can remove is a covered class action involving a covered security. So why do we have such different approaches to the different prongs?
05-409 +++$+++ 41537 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I'm agreeing with you on covered security. I'm -- I'm saying that there then is the further inquiry of whether all of the preclusive elements of subsection 77p(b) are met, which is the merits inquiry.
05-409 +++$+++ 41538 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right. And --
05-409 +++$+++ 41539 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There -- there are very few cases that don't involve covered securities because virtually every security is covered. There are very few cases that aren't covered class actions because if they involve more than 50 people, that's about all the requirement there is. Those are the jurisdictional prerequisites. That, if established, gives the court subject-matter jurisdiction. Then we have the substantive elements of the SLUSA preclusion defense provided in a different statute that is not jurisdictional, just like this Court described in Arbaugh. The covered security and covered class action Congress made jurisdictional by putting them in the statute. The substantive elements of the defense Congress did not make jurisdictional because they're in another statute. That's the disconnect that Judge Easterbrook understood so that on the face of the opinion of the district court, where it recites the defendants maintain that the in-connection-with requirement was met, that defense, if colorable -- and it clearly was. This Court has accepted it in Dabit -- conferred jurisdiction on the court, and then the substantive decision on the merits was the merits determination. That is the decoupling that Congress did in SLUSA, that Judge Easterbrook correctly recognized, and that puts this case squarely within the Thermtron exception to 1447(d).
05-409 +++$+++ 41540 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How do you answer the argument, the third argument, that Mr. Frederick stressed that is, that Congress provided specifically in the Class Action Fairness Act, a couple of other acts, and 1447 itself with respect to civil rights actions removable under 1443? In all those cases, it provided specifically for review of remand decisions, and here the silence is deafening.
05-409 +++$+++ 41541 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In those cases, Your Honor, they work differently than SLUSA for two reasons. One, they're the whether -- not whether it will be tried, but where it will be tried. And when Congress -- and when it was only a where question, Congress puts in a specific provision. The other is CAFA, for example, is expressly jurisdictional. It amends the diversity statute. So there's no argument that it would be within Thermtron. Every CAFA question is a 1447(c) issue. Congress had to make it. Here, Congress knew about Thermtron. Congress has known about Thermtron for 30 years. This Court reaffirmed Thermtron while they were debating SLUSA. And Congress knew that this question was not jurisdictional. Congress decoupled them, just as this Court described in Arbaugh.
05-409 +++$+++ 41542 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't know what -- what Congress' knowledge about Thermtron was a district judge who said, they removed this case, but I'm much too busy. This court is much too busy to mess with stuff that belongs in the State court. I'm remanding it. That was just too much, and the Federal court --
05-409 +++$+++ 41543 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And, Justice Ginsburg, if Judge Hermansdorfer had said, I'm much too busy and therefore I lack subject-matter jurisdiction, it is inconceivable that the Thermtron case would have been decided any differently. Congress understands the difference between jurisdiction and merits. This Court understands the difference between jurisdiction and merits. Judge Easterbrook certainly understood that distinction. This determination made by the district court here was a merits determination not controlled by 1447(c), and therefore, appeal was not barred by 1447(d).
05-409 +++$+++ 41544 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but I still don't -- and this gets back to the question I asked before. I mean, subsection (c) of 77p -- it's unfortunate we've got a lot of subsection (c)'s here but -- of -- of SLUSA incorporates subsection (b).
05-409 +++$+++ 41545 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. It references subsection (b).
05-409 +++$+++ 41546 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it says what can be removed is the covered class action involving a covered security, as set forth in subsection (b).
05-409 +++$+++ 41547 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Just as title VII says what can be brought is an action under this title or just as the environmental statute in Steel Company said what can be brought is an action under subsection (a). The cross reference of another provision containing substantive elements of Federal law does not make those elements jurisdictional. That's the holding of Arbaugh. That's the holding of Steel Company. There's no reason that the same principle shouldn't be applied when Congress makes a Federal defense removable as when it makes a Federal claim subject to suit within the original jurisdiction of the Federal courts.
05-409 +++$+++ 41548 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but here, what is set out in subsection (b) is exactly the reason for Congress' wanting to place these restrictions on it, and that, it seems to me, is the sensible reason for reading it the way your -- your brother on the other side does.
05-409 +++$+++ 41549 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Souter, we know from Mesa that if Congress had just made all covered class actions removable, we would have to find some Federal defense to support article III jurisdiction. Congress, by cross-referencing subsection (b), just pointed the Federal courts to the particular Federal defense that is sufficient, clearly sufficient, to make article III satisfied under the Mesa case. That's all that that cross reference is doing. It's not, however, picking up every element. If Congress wanted to include every element of title VII, that environmental statute of SLUSA, it would have put them in the jurisdictional provision. Arbaugh says --
05-409 +++$+++ 41550 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why would it have done that? That would have been a waste of time. I mean, you just say, as set forth in subsection (b). You're saying if they had repeated subsection (b) there, we'd have -- the case would come out the other way?
05-409 +++$+++ 41551 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. We have not only the -- the reference there, but we have the final sentence of that clause where we say after removal, after the court establishes that it has removal jurisdiction, it shall subject the action to subsection (b). That clause is entirely redundant under Petitioners' reading of the statute. Entirely redundant. I've read the reply brief a number of times. I don't understand their explanation for that. The only explanation is that Congress made removability contingent on the subsection (c) factors. Thank you, Your Honor.
05-409 +++$+++ 41552 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Perry. Mr. Frederick, you have 4 minutes remaining.
05-409 +++$+++ 41554 +++$+++ FALSE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. I think it's really important for you to look at the complaints in these cases because every single one of them asserts claims on the basis of negligence and the value -- the fair-value pricing of the securities. They are not based on misrepresentations. The other side has attempted to make them look like misrepresentations, and they've quoted things out of context in order to do so. But the complaints themselves are pure negligence claims that would fall outside of SLUSA. But even if you were to disagree with that and even if you were to disagree with the district court's basis for saying that remand was proper because it lacked subject-matter jurisdiction, the general rule of Thermtron, Things Remembered, and importantly, the Gravitt case applies. And this Court does not have appellate jurisdiction. The Seventh Circuit does not have appellate jurisdiction because of the plain language of section 1447(d). Respondents concede that State courts can decide SLUSA questions. It is up to defendants to decide whether to try to remove them. And subsection (d), about which Mr. Perry spoke, expressly provides that certain kinds of securities actions shall be remanded because Congress was not so concerned that Federal courts decide everything concerning securities cases, but only as to those that are expressly set forth in subsection (b). And, Mr. Chief Justice, respectfully, what subsection (c) is doing with its references to subsection (b) are to incorporate those criteria as one of the three elements or criteria for removability. It has to be a covered security, has to be a covered class action, and it has to meet the requisites of subsection (b). That's the only reasonable way to read that. And the last clause is simply confirmatory that if those are -- are met, then the district court has to find that the case shall be precluded. In the Gravitt case, in which this Court through a per curiam dismissed the appeal, there was a dispute between the district court and the court of appeals over whether the district court had properly applied subject-matter jurisdiction principles in deciding whether or not there was diversity. This Court said, no matter. That is outside the -- the requisite -- that is outside 1447(d), and the general rule against appealability applies. Now, importantly, they argue that they would be precluded by -- from arguing against SLUSA preemption in State court, but in fact, the last brief -- the last page of our brief, our reply brief, cites the Standefer case in which this Court held, under contemporary principles -- and I'm quoting now -- under contemporary principles of collateral estoppel, the inability to pursue an appeal is a factor strongly militating against giving a judgment preclusive effect.
05-409 +++$+++ 41555 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you agree that there would be Federal court review in this Court from a State court determination on the applicability of SLUSA in this case?
05-409 +++$+++ 41556 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, there would be. And there would be -- their argument about the Missouri Pacific case is wrong because what the -- what was going on there was the remand determination, not the underlying Federal right. And that's what would be appealed, and there would also be appeal of the preclusive consequences because that would be a question of Federal law under this Court's longstanding determination. The Restatement --
05-409 +++$+++ 41557 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask you one question, Mr. Frederick? Because it's important to me. Would you agree that a complaint that alleged that the defendant negligently used or employed manipulative devices and so forth would be covered by SLUSA -- would preempt it?
05-409 +++$+++ 41558 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be covered. And -- and the reason is that it is -- involved a manipulation. The wording of SLUSA involves a manipulation of -- of the security.
05-409 +++$+++ 41559 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So the mere fact that it's negligently caused would not preclude preclusion.
05-409 +++$+++ 41560 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What -- what we're talking about here, Justice Stevens -- it's important -- is that in how these securities get priced, was there negligence in the pricing of those, that had deleterious effects on one class of holders but not on market-timers that we were moving in and out of the market. And so, frankly, Judge Easterbrook was wrong for a sixth reason, and that was in saying that there would have been a derivative claim here too because a derivative case has to be brought on behalf of the corporation on behalf of all shareholders --
05-409 +++$+++ 41561 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then the district court was wrong too I guess because the district court made the same --
05-409 +++$+++ 41562 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The district court was wrong in not anticipating what this Court held in Dabit, but it was not wrong insofar as it held that there was no subject-matter jurisdiction because this case is based on negligence and not fraud. Thank you.
05-409 +++$+++ 41563 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Frederick. The case is submitted.
05-416 +++$+++ 41567 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in 05-416, Woodford versus Ngo. Ms. Perkell.
05-416 +++$+++ 41569 +++$+++ FALSE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The question presented in this case is whether, in enacting the Prison Litigation Reform Act's exhaustion requirement, Congress intended to require inmates to comply with administrative grievance procedures or whether Congress intended to permit inmates to ignore those procedures. Petitioners submit that Congress intended to require inmates to comply with administrative grievance procedures, for three principal reasons: One, the established principle of exhaustion in the administrative law context requires a grievance -- a grievant to timely comply with administrative agency proceedings. Two, in enacting the Prison Litigation Reform Act's exhaustion requirement, Congress was responding to this Court's decision in McCarthy v. Madigan, in which this Court presumed that an express or mandatory exhaustion requirement for prisoners would necessitate compliance with prison filing deadlines. And, three, Congress's objectives in enacting the Prison Litigation Reform Act's exhaustion requirement are directly facilitated by a rule in which inmates must comply with administrative grievance procedures, including filing deadlines; whereas, those objectives are invariably subverted when an inmate is permitted to ignore those procedures. In the administrative law context, the established principle of exhaustion generally requires that a grievant comply with administrative agency proceedings in a proper and timely manner in order to be able to proceed to Federal Court. In this case, Congress has, indeed, enacted an administrative exhaustion requirement. Even the court of appeals agreed that in so doing Congress was attempting to bring the exhaustion rule for prisoners more into line with established administrative exhaustion rules that apply in other contexts.
05-416 +++$+++ 41570 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What do you say to the argument that that really is an inapposite argument because the 1983 proceeding is de novo?
05-416 +++$+++ 41571 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would suggest -- I -- we concede there's that distinction. However, I would suggest it's irrelevant for purposes of how Congress would have understood the term "exhaust" in enacting the statute. The definition of the "principle of exhaustion" in administrative law is one in which there's an obligation to comply with the agency's grievance proceedings. And so, that is the definition of exhaustion that Congress was presumably -- I would suggest was presumably invoking in this context.
05-416 +++$+++ 41572 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that's the -- a function of -- you want the first-line decisionmaker -- you need that decision, because, at the second rung, in -- at the court level, deference is owed to it. But in the prison setting, there's no deference owed to it. So, I would think that this kind of requirement, that you must file someplace else first, a place that won't get deference, is more like the EEOC example and the Age Discrimination Act.
05-416 +++$+++ 41573 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, in the first instance --
05-416 +++$+++ 41574 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm sorry, Ms. Perkell, could I ask you to speak up just a bit?
05-416 +++$+++ 41575 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, sure. I --
05-416 +++$+++ 41576 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thanks.
05-416 +++$+++ 41577 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I apologize. Again, we're submitting that Congress understood the term "exhaust" in a particular way, given how it's just generally used in the administrative context. And with respect to the EEOC context, we think that that is inapposite, because primarily that -- the relevant statutes in those contexts invoke the word "commence," which --
05-416 +++$+++ 41578 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Invoke what?
05-416 +++$+++ 41579 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The word "commence" instead of "exhaust," which this Court has expressly, again, distinguished from an exhaustion requirement. Moreover, under those statutes Congress has limited the meaning of "commencement" in such a way that this Court has interpreted Congress to expressly preclude the possibility of a procedural default by virtue of a failure to comply with State filing provisions.
05-416 +++$+++ 41580 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are you -- are you saying, then, that those two go together, they're inextricably tied together? If you've got an exhaustion rule, then embedded in it is always a procedural default rule?
05-416 +++$+++ 41581 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm suggesting in that -- in the -- excuse me -- in the administrative law context, which is the context in which Congress was legislating under this statute, that that is, indeed, the established conception of that term.
05-416 +++$+++ 41582 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They're saying that it's special here. If you look at the language of the text, the language talks -- is almost identical to the language that was in CRIPA, or whatever is -- you know, CRIPA. Is that the correct pronunciation of the concatenation of --
05-416 +++$+++ 41583 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, I'm not sure what Your Honor --
05-416 +++$+++ 41584 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm think -- oh, well, I guess it isn't -- unlike IIRIRA, it is apparently unknown.
05-416 +++$+++ 41585 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh.
05-416 +++$+++ 41586 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There was a predecessor act, and the predecessor act used this same language, just about. And what it said was, "Judge, you may require exhaustion of such remedies as are available." And, given that language, nobody thought that was a procedure default rule; it just meant the judge, if there's a remedy available, can say, "Prisoner, go do it," in an appropriate case. And all that happened here, if you look at the history, is, they changed the "may" to a "must." And all the people that wrote in were writing in about that. Nobody dreamt, nobody said, nothing suggests, that what Congress intended to do was to bring in the procedural default aspect of it. And there would have been a lot of objections if they had. So, that's the argument the other way. Now, I'd like to know what do you have at all that overcomes what I just said?
05-416 +++$+++ 41587 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would suggest that, in part, the language of the CRIPA, which is -- I believe, is -- that's how I pronounce it; I believe that's what Your Honor is referring to -- in part, precluded the possibility of a default -- procedural default bar largely because it required a continuance of a case for 90 -- or I believe it started out as 180 days, and then became 90 days. And -- in order to permit the judge to order the inmate to go back and exhaust -- and under those circumstances, even if he had been untimely by virtue of the continuance language, he was, nonetheless, permitted to return to Federal Court. So, I think by virtue of the language of the statute, it's at least possible that Congress had a -- deliberately excluded that possibility. Moreover, I think that the statutory history and the statutory purposes in this case support the conclusion that Congress intended inmates to require with applicable grievance proceedings. And if I may refer to the statutory history, in this Court -- excuse me, in Booth v. Churner, this Court recognized that this Court's prior decision in McCarthy v. Madigan constituted a substantial portion of the statutory history from the PLRA's exhaustion requirement. And, in relevant part, for purposes of the question presented here, that decision observed that -- or assumed that an exhaustion -- a mandatory exhaustion requirement for prisoners would necessitate the compliance of administrative filing deadlines.
05-416 +++$+++ 41588 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that was a comment made when the decision itself held that there was no exhaustion. The -- wasn't that so? I mean, the holding in Madigan was in favor of the Petitioner.
05-416 +++$+++ 41589 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is so. This Court --
05-416 +++$+++ 41590 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean McCarthy.
05-416 +++$+++ 41591 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court made that observation. It was one of two grounds upon which this Court relied in holding that this Court would not judicially impose a mandatory exhaustion requirement for prisoners under that decision. So, the first part of the decision evaluated the text of the former version of 1997(e), and, in the second part of this decision, this Court said, "Nonetheless, notwithstanding that the statute doesn't expressly require exhaustion, we will not judicially impose exhaustion in this case for the reason that such a requirement would, indeed, represent a possibility of forfeiture of a claim for an inmate's failure to comply with deadlines." And, again, as this Court recognized in Booth v. Churner, that decision is a significant part of the statutory history of this provision, and this Court presumed that Congress was responding to that decision when it revised 1997(e).
05-416 +++$+++ 41592 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, there was -- in McCarthy, itself, the wording was something that -- of the kind proposed. And so, it's not clear whether it's referring to -- what was proposed was a rule that would incorporate a procedural default motion. It's not clear, just from the -- reading that opinion.
05-416 +++$+++ 41593 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I would respectfully dispute that, in that our reading of the opinion, as well as the Government's brief in that case, seemed to propose no unusual rule of exhaustion. It appeared that the rule of exhaustion that was being discussed was an ordinary rule of exhaustion. So, I don't believe that there was anything unusual about the exhaustion concept that was at issue in that case. Finally, I would submit that Congress's purposes in enacting --
05-416 +++$+++ 41594 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Before you get to the purposes, you quote in your brief -- the only legislative history I could find here -- you said that Congressman LoBiondo referred to McCarthy, which you find relevant, because McCarthy indicated that the word "exhaustion" would carry along with it a procedural default rule. So, what did the Congressman say?
05-416 +++$+++ 41595 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What did Representative LoBiondo --
05-416 +++$+++ 41596 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Uh-huh.
05-416 +++$+++ 41597 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- say?
05-416 +++$+++ 41598 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Uh-huh.
05-416 +++$+++ 41599 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The significance of excerpting that provision was to, in part, demonstrate that Congress was, indeed, aware, consistent --
05-416 +++$+++ 41600 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. So, I take it from your answer he didn't really say anything helpful to you --
05-416 +++$+++ 41601 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He --
05-416 +++$+++ 41602 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- except to refer to the name of the case --
05-416 +++$+++ 41603 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-416 +++$+++ 41604 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in which case, what we have on the -- all right. Is that right?
05-416 +++$+++ 41605 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think there are two relevant things about that statement. First is the significance of his referencing the McCarthy case and demonstrating affirmatively that Congress was, indeed, aware of that decision when it revised the statute. But, moreover, it was another iteration of the purposes that Congress sought to achieve through enactment of the statute. So, speaking to the third point, which was purposes of the statute, our position is that those purposes are directly served by a rule in which inmates are required to comply with administrative grievance proceedings. By contrast, those rules are subverted by a rule in which an inmate is permitted to file an untimely appeal, which is rejected on procedural grounds, and which, therefore, receives the benefit of no prior administrative review.
05-416 +++$+++ 41606 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In thinking --
05-416 +++$+++ 41607 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's --
05-416 +++$+++ 41608 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- of what Congress might have meant, one part of the picture is, we're not dealing with statutes of limitations enacted by legislatures. We're dealing with grievance procedures that vary from State to State, and maybe even from prison to prison. And some of them have a very short span. I think the brief said some of them are 2, 3, 5 days.
05-416 +++$+++ 41609 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. Those were proceedings that were noted on one of the briefs. I think it's reasonable to presume that Congress was aware of the variety of prison filing deadlines when it enacted this statute. And I also think that it's reasonable to presume that Congress intended for those -- for whatever grievance procedure the State sets forth to be governing in this instance. And this is because, under the former version of the statute, the CRIPA, Congress had required that grievance proceedings comply with specified standards, specified Federal standards. And in the new version of the statute, Congress dispensed with those requirements. And I think that the obvious conclusion to draw from that change was that Congress was intending for -- whatever prison procedures are established in any given situation are those that are going to govern the inmate's appeal process.
05-416 +++$+++ 41610 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, you would treat a State with a 2-day statute of limitations just like your State, with a 15-day statute.
05-416 +++$+++ 41611 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the -- always, the relevant inquiry, especially in light of the statute -- or precisely because of the statutory language, the inquiry is whether or not remedies are, indeed, available and capable of use by the inmates. So, without any further facts, yes, I would treat a 2-day --
05-416 +++$+++ 41612 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It was --
05-416 +++$+++ 41613 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- filing period.
05-416 +++$+++ 41614 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- available for 2 days, so that satisfies -- so, I suppose it would be okay for 6 hours, too.
05-416 +++$+++ 41615 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It could conceivably be. As long as remedies are, indeed, available to the inmate, there is an obligation under the statute that he exhaust --
05-416 +++$+++ 41616 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is that --
05-416 +++$+++ 41617 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I suppose --
05-416 +++$+++ 41618 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- plausible?
05-416 +++$+++ 41619 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I suppose there can always be a specific objection to the reasonable availability of a particular remedy. I mean, if this -- the prison remedy is, you know, within 5 minutes you've got to file a complaint or something. But that's not the question here. The question here is what the PLRA requires, as a general matter, with respect to prison remedies.
05-416 +++$+++ 41620 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, that is correct. And as -- we are submitting that it does, indeed, require compliance with the administrative grievance --
05-416 +++$+++ 41621 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you agree that there's a requirement that the exhaustion period be reasonable?
05-416 +++$+++ 41622 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm -- I -- the requirement that I think is relevant under the statute is whether or not the procedure is available.
05-416 +++$+++ 41623 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Conceivably, if it's too short, it's not reasonably available. I guess --
05-416 +++$+++ 41624 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is -- yes, Your Honor, that is --
05-416 +++$+++ 41625 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
05-416 +++$+++ 41626 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that is a conceivable --
05-416 +++$+++ 41627 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's conceivable.
05-416 +++$+++ 41628 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- conceivable --
05-416 +++$+++ 41629 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well --
05-416 +++$+++ 41630 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- scenario.
05-416 +++$+++ 41631 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- what do you --
05-416 +++$+++ 41632 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
05-416 +++$+++ 41633 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- what do you make of the fact that there was prior law that required -- I forget its exact words, but something like "reasonable procedure," and that language was repealed?
05-416 +++$+++ 41634 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I presume, from that, that Congress had shifted its focus in the new statute to the purposes that we have articulated in the brief, one of them being --
05-416 +++$+++ 41635 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if that's -- if that's the case, then, on your own reasoning, you can't assume that there's -- that availability requires any reasonable availability. It's got to be availability as, I guess, a physical possibility, and that's all.
05-416 +++$+++ 41636 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would agree with that, Your Honor. That is our --
05-416 +++$+++ 41637 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you find --
05-416 +++$+++ 41638 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- position.
05-416 +++$+++ 41639 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- it plausible that Congress, in effect, would have intended these -- the statute of limitations on 1983 to be truncated in that way?
05-416 +++$+++ 41640 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, I do believe that. Congress was legislating, enacted this statute for the purpose of addressing a particular category of section 1983 actions in which it appears that Congress reached the conclusion that there was be -- there was an abuse of that process under 1983. And so, the purpose of -- what this --
05-416 +++$+++ 41641 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but the abuse was not coming from people who filed -- or the -- let's say the line that identifies the abuse was not a line between those who file a grievance within 2 days and those who do not. I mean, that's -- that -- it's true, if you -- if you have a 2-hour statute of limitations, you're going to keep out a lot of cases, but it's not a tool that is particularly suited to the problem that Congress was dealing with, which is frivolous actions.
05-416 +++$+++ 41642 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I would first dispute that a 2-hour time limitation would necessarily keep out a lot of cases. As long as it's an available remedy --
05-416 +++$+++ 41643 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Wouldn't you like to have a 2- hour time limit? [Laughter.]
05-416 +++$+++ 41644 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it --
05-416 +++$+++ 41645 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You'd have a lot -- you know, a lot more time at the park. [Laughter.]
05-416 +++$+++ 41646 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it wouldn't necessarily be my preference, but I certainly wouldn't suggest that it was a remedy unavailable or incapable of use by anyone, if you take into consideration other aspects of the prison grievance procedure.
05-416 +++$+++ 41647 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I --
05-416 +++$+++ 41648 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So --
05-416 +++$+++ 41649 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask you just one thing --
05-416 +++$+++ 41650 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-416 +++$+++ 41651 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- about how this operates and who reviews what? One of the claims that was made -- this prisoner filed twice. And, the second time, as I recall, he said, "Every day that I'm here, the clock starts running again, because this is a continuing violation. I'm restricted today, and I'll be restricted tomorrow." And there was no -- is that something that would be reviewable in court?
05-416 +++$+++ 41652 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think what -- in this -- as occurred in this case, the inmate has made this contention that there was a continuing violation. It would be incumbent upon the district court to evaluate that question under the grievance proceeding at issue and under the facts --
05-416 +++$+++ 41653 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, what --
05-416 +++$+++ 41654 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- as presented.
05-416 +++$+++ 41655 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- role would govern whether a continuing violation occurred? Would it be --
05-416 +++$+++ 41656 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would suggest that the law of the prison grievance proceeding. If there's --
05-416 +++$+++ 41657 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And what is the law of the prison grievance proceeding on that point?
05-416 +++$+++ 41658 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in California the requirement is that an inmate must file a grievance within 15 working days or 3 weeks of the event or decision at issue. The facts in this case --
05-416 +++$+++ 41659 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, he -- that -- his point is that the event at issue happens every day.
05-416 +++$+++ 41660 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would submit that the facts of this case actually show that the events at issue are the two decisions that were made which resulted in consequences with which the inmate was dissatisfied. Those two decisions were the first decision --
05-416 +++$+++ 41661 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But your -- but your point -- your -- whatever the internal grievance procedure is, there's no judge that would decide that, which you said, this is all for the internal procedure.
05-416 +++$+++ 41662 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. And, again, the district court could be called upon to address that question, as appears to be the case here, and the district court would endeavor to apply the rules of the grievance proceeding to the facts regarding exhaustion. If, in the event the grievance proceeding didn't, for instance, sufficiently put the inmate on notice, didn't provide clarity on whether or not -- on what he had to do under circumstances where there's a continuing consequence to a decision, perhaps in that instance it would be appropriate for the district court to decide, yes, indeed, he had exhausted, given the ambiguity on that point in the regulations.
05-416 +++$+++ 41663 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Ms. --
05-416 +++$+++ 41664 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If --
05-416 +++$+++ 41665 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- Perkell, perhaps you'd like to save your remaining --
05-416 +++$+++ 41666 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-416 +++$+++ 41667 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- time for rebuttal.
05-416 +++$+++ 41668 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor.
05-416 +++$+++ 41669 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you. Mr. Himmelfarb, we'll hear now from you.
05-416 +++$+++ 41671 +++$+++ FALSE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The United States agrees with Petitioners' submission that the Ninth Circuit's decision is inconsistent with the text, history, and purposes of the PLRA exhaustion requirement. We would add that the Ninth Circuit's decision has consequences that Congress could not have intended. To begin with, under the Ninth Circuit's interpretation, a prisoner can wait years to file an administrative claim, such that it is virtually certain that the prison will reject the claim as untimely and not decide the claim on the merits. That is hardly different from not requiring an exhaustion requirement -- not requiring exhaustion at all. Indeed, Respondent candidly concedes -- this is on page 43 of his brief -- that, under his interpretation, if the prison system does not give prison decisionmakers any discretion to decide an untimely claim, the prisoner would not have to file an administrative claim at all. All he would have to do is wait for the filing deadline to pass. In addition, if the Ninth Circuit's interpretation is correct, the PLRA would be the only context in the law in which a claimant who is required to exhaust would be able to get into Federal Court by virtue of untimely exhaustion; that is, without complying with filing deadlines. It would be odd, to put it mildly, if Congress intended to adopt such a uniquely forgiving exhaustion rule as part of a statute whose very purpose was to combat abusive litigation by prisoners. Respondent's submission is that the administrative law principle, the established administrative law principle, that exhaustion requires compliance with the agency's procedural rules, is inapplicable here, because what we're dealing with is what he calls an original proceeding rather than a review proceeding.
05-416 +++$+++ 41672 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is his best case, your brother's best case, in your view -- and you probably -- may not think of it as a very persuasive case -- Fay and Noia, is that the closest Respondents can come?
05-416 +++$+++ 41673 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, probably, Justice Kennedy. And that is a habeas corpus case that involves exhaustion under the habeas corpus statute. It doesn't involve administrative exhaustion. And, of course, the Court abandoned that principle, which was the deliberate bypass exception to the procedural default rule, years ago, I believe in 1977, in favor of the cause and prejudice exception in Wainwright versus Sykes, which was subsequently codified by Congress in AEDPA. But there is no administrative exhaustion context, of which we are aware, where untimely exhaustion is sufficient.
05-416 +++$+++ 41674 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You --
05-416 +++$+++ 41675 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Respondent places --
05-416 +++$+++ 41676 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Could --
05-416 +++$+++ 41677 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- heavy --
05-416 +++$+++ 41678 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would Respondent tell us, well, that at least in some administrative law schemes, generally there is a requirement that the exhaustion period must be reasonable?
05-416 +++$+++ 41679 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- this Court has made clear, in various cases, including in the very context of the exhaustion provision at issue here, in the Booth versus Churner decision, that there are no exceptions to the exhaustion -- to an administrative exhaustion requirement when Congress provides otherwise; that is, in the context of statutory, as opposed to a judge-made, exhaustion requirement. It is the case that what is required under the PLRA is exhaustion of available administrative remedies. So, under some of the hypotheticals that the Court was suggesting -- for example, if there were a 6-hour filing deadline; and, as far as I'm aware, there is no prison that has a 6-hour filing deadline -- but, if there were, and in that particular case, for some reason, the prisoner were unable to comply with the deadline, because, for example, forms were unavailable or he was in a hospital bed, incapacitated, or he was in solitary confinement, I think it would be appropriate for a Federal Court to conclude that the remedy at issue was not available; and, therefore, that he didn't have to pursue that remedy; he would be able to get into Federal Court, assuming he had otherwise complied with the prison's procedural requirements.
05-416 +++$+++ 41680 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, wouldn't it go -- wouldn't that apply -- that principle apply to reasonable -- unreasonable remedies? You have to have a reasonable remedy. I don't see how you can decide to import half of administrative law and not the other half.
05-416 +++$+++ 41681 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't think -- I don't think reasonableness is the right way to think about it, Justice Breyer. It is not a -- in our view, it's not a categorical question of whether a particular filing deadline is reasonable or not in the view of the Court.
05-416 +++$+++ 41682 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's not just a filing deadline. It's the whole procedure. I mean, Rehnquist -- Chief Justice Rehnquist, in McCarthy, lists a bunch of reasons in cases where the process subjects the plaintiffs to unreasonable delay, to an indefinite timeframe. And there could be others. The normal thing is, you excuse exhaustion where the exhaustion requirement was such that the person couldn't reasonably comply. Now, either you do want to import that into this statute, or not. And if you do not, then I think you're asking us to say we import what goes normally with the word "exhaustion," where it favors the Government, but not what normally goes with the word "exhaustion" where it doesn't.
05-416 +++$+++ 41683 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our only point, Justice Breyer, is that it wouldn't be appropriate for a court to look at a particular filing deadline in a prison. Most of them, incidently, are somewhere between 14 and 30 days. But if there were, for example, a 24-hour filing deadline, our submission is that it wouldn't be appropriate for a court to look at that deadline and say, "We think that that's just too short, and, therefore, unreasonable." It would only be appropriate to say that the remedy wasn't available if -- regardless of the length of the filing deadline -- in a particular case, the facts were such that literally the prisoner were unable to pursue that administrative remedy. If he were literally unable to do so, the remedy would not be available under the PLRA exhaustion provision. The case on which Respondent places --
05-416 +++$+++ 41684 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would that apply to a prisoner who claimed he'd been raped by a guard or something, but was afraid to bring the proceeding, for 2 or 3 weeks, until the guard was transferred to another facility? And he alleged those facts, and then he was denied relief because it was over 15 days. Would that be --
05-416 +++$+++ 41685 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, I think there would be cases -- and that might be one of them -- that would present difficult questions. Under your hypothetical, for example, if the -- if it were clear that there were explicit threats --
05-416 +++$+++ 41686 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, those are --
05-416 +++$+++ 41687 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- from the guard --
05-416 +++$+++ 41688 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- his allegations. These are just his allegations. And when that -- and they then said, "No, it's -- you're out of time." Could a Federal Court take that case?
05-416 +++$+++ 41689 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If a prisoner filed a 1983 or Bivens action, and the --
05-416 +++$+++ 41690 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, he -- first he files a prisoner complaint, 17 days late, but makes the allegations I describe, and he's just denied because he's too late. Could a Federal Court take that case, under your view?
05-416 +++$+++ 41691 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would think --
05-416 +++$+++ 41692 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And then he'd have to file a second -- subsequently file a 1983 case.
05-416 +++$+++ 41693 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That could be an issue that would have to be litigated in connection with a motion to dismiss for failure to exhaust. If the prisoner alleged, and could prove, for example, that he received explicit threats from the prison guard that, if he filed this administrative claim, harm would come to him, I would think that a court could permissibly find that that wasn't an available remedy. But short of -- short of explicit threats, I think he would -- it would be a more difficult issue --
05-416 +++$+++ 41694 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So even --
05-416 +++$+++ 41695 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and a much harder --
05-416 +++$+++ 41696 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- if it was seven --
05-416 +++$+++ 41697 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- case.
05-416 +++$+++ 41698 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- even after the 17th day, the Federal Court could hear a -- have a factual hearing.
05-416 +++$+++ 41699 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There would have -- if the remedy was not available, because the prisoner --
05-416 +++$+++ 41700 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ He's just alleged it isn't -- in -- and the only -- the only response from the State is, "You're 2 days late." That's all -- that's all the State has said.
05-416 +++$+++ 41701 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. But there -- you would -- you would often have factual issues in connection -- maybe not "often" -- you would sometimes have factual issues in connection with a motion to dismiss which might transform it, in effect, into a motion for summary judgment when there is an exhaustion defense raised by the prison. And that might be an example -- I think that would be a rare case, but that might be an example of where that would happen. I do want to respond to Respondent's reliance on the Oscar Mayer case. The distinction between Oscar Mayer and this case is that that case did not involve an exhaustion provision. The Court explicitly stated, in Oscar Mayer, that the provision at issue, a provision of the ADEA, does not stipulate an exhaustion requirement. The requirement was one of commencement. It obligated the claimant to go to a State administrative agency, wait 60 days, and then he was free to go into Federal Court. Exhaustion requires a claimant to go to an agency and complete his remedies. In Oscar Mayer, the Court relied on features of the provision at issue there that are not present here, and it said, correctly, that the provision at issue there had the purpose of providing a claimant with a limited opportunity to obtain relief in the State administrative process. The PLRA exhaustion provision was enacted to give the prison a full and fair opportunity, not a limited opportunity, to provide relief before a prisoner is entitled to go into Federal Court.
05-416 +++$+++ 41702 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why did they use the word "until," instead of the word "unless"?
05-416 +++$+++ 41703 +++$+++ TRUE +++$+++ MR. HIMMELFARB +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are lots of statutory exhaustion requirements that are framed in lots of different types of language. Some say "until," some say "unless," some say "before," some say "after," some say "only if." But, in every single context of which I am aware, they incorporate the settled administrative law principle that a claimant has to comply with the agency's procedural requirements.
05-416 +++$+++ 41704 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Himmelfarb. Mr. Feder.
05-416 +++$+++ 41706 +++$+++ FALSE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: There are three basic reasons that a procedural default rule should not be read into the PLRA. The first is, the text of section 1997(e) is most naturally read as requiring simple exhaustion, which is satisfied once -- when there are no remedies available at the time the suit is filed.
05-416 +++$+++ 41707 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I would -- I would not describe "exhaustion" that way. I would -- I would describe a failure to file within the prescribed time, not as an exhaustion of remedies, but as a failure to exhaust remedies. I mean, I guess I'm having a terminological problem in this case, as I did in the previous case.
05-416 +++$+++ 41708 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think -- I think that in the habeas cases the Court has consistently read "exhaustion" as referring simply to "no remedies presently available."
05-416 +++$+++ 41709 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, well, we're talking about administrative law, which is a field I used to know something about, and I've never thought "exhaustion" included "failure to exhaust," which --
05-416 +++$+++ 41710 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-416 +++$+++ 41711 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- which is --
05-416 +++$+++ 41712 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- first --
05-416 +++$+++ 41713 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- what happens when you simply don't file within the prescribed period.
05-416 +++$+++ 41714 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, first of all, Your Honor, I don't think we're -- that administrative law is the appropriate analogy here. There are a number of reasons why habeas provides a much closer source of meaning for the word and concept of "exhaustion" here, both because of the similarity of the language in the exhaustion provision here, and the habeas exhaustion provision, because of the fact that both are prisoner litigation. There is an overlap between habeas cases and section 1983 cases in this context. And --
05-416 +++$+++ 41715 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I'm not sure. It seems to me, as Justice Scalia's question indicates -- I was surprised that we're talking about procedural default. I, too, thought this was an administrative law case. And it's an administrative law case, because we want the input of the administrative -- of the administrative body. In the habeas cases, we're simply giving deference as a matter of comity and courtesy to the State Courts. Is it --
05-416 +++$+++ 41716 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, actually, Your Honor, I don't think there's any indication that Congress was focused on input from the prison grievance system. In fact, the way -- the way it works is that once the prison grievance system addresses the claim that's of no effect in the subsequent Federal suit, which starts over from square one --
05-416 +++$+++ 41717 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, not so much maybe input, but so that they can -- they can resolve the program -- the problem within the institution, and not have to come to the courts.
05-416 +++$+++ 41718 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, two things. First, as I say, there are a number of reasons why, in looking at the language Congress was using, it's more reasonable to look to the habeas statute. But even in the administrative law context, this is dramatically different from most administrative law circumstances, because in those situations you have an administrative decision that is in some way being reviewed, the administrative agency record may have some effect. Here, you don't have that aspect of review, and the administrative context that is close to this, if you're looking for an administrative analogy, is the Title VII and Age Discrimination Act cases, because those cases, similarly, provided for invocation of State remedies that were designed to give the State an opportunity to resolve the case voluntarily, if that would satisfy the prospective plaintiff, but if the plaintiff were not satisfied, he'd be able to move on. And I think that both opposing counsel have made a point of saying that the Oscar Mayer case pointed out that it was not an exhaustion requirement in Oscar Mayer, but, rather, that it used the word "commence." But I think it's important to look at what the Court said it meant by saying it wasn't an exhaustion requirement. And this is at 441 U.S. at 761, and the Court said, "section 14(b) does not stipulate an exhaustion requirement. The section is intended only to give State agencies a limited opportunity to settle the grievances of ADEA claimants in a voluntary, localized manner so that the grievants thereafter have no need or desire for independent Federal relief." So, the sense in which the Court was saying that that's not an exhaustion requirement is basically saying that that scheme is like this one, where the PLRA does not approach attempting to reduce the Federal prisoner claims by kicking cases out of court indiscriminately or by defaults; it aims to reduce it by raising the degree of difficulty for the prisoner in getting to Federal Court in various ways --
05-416 +++$+++ 41719 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But how does it do that? I mean, if there's any object that Congress had in mind, surely it was to reduce the number of frivolous prisoner claims that are coming into Federal district courts. And it hoped to do this by sending the -- making sure that they went through the prison system first. Whether we looked at what the prison system did or not, we hoped that the prison system would get rid of a large -- a large number of these frivolous claims. Now, can you tell me how that purpose is possibly served --
05-416 +++$+++ 41720 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly, Your Honor.
05-416 +++$+++ 41721 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- by saying, "Do nothing. So long as you don't even try to go through the prison grievance system, you can come directly into court." It seems to me this --
05-416 +++$+++ 41722 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we're not --
05-416 +++$+++ 41723 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- this --
05-416 +++$+++ 41724 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- we're not saying that, Your Honor.
05-416 +++$+++ 41725 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, no, "You -- you have to go there late. You" --
05-416 +++$+++ 41726 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-416 +++$+++ 41727 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "you just sit around until it's too late, file a grievance that you know will not be accepted, because it's too late, and then you can come into Federal Court." This is going to cut back considerably on the number of frivolous claims?
05-416 +++$+++ 41728 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think that -- there are a few points to respond to there -- I think that the provision does make sense that way. I mean, first, it's worth noting that the PLRA was working very well before procedural default even came into the picture. The first court of appeals decision recognizing procedural default under the PLRA was in 2002. The Petitioner has statistics -- Petitioners have statistics in their brief showing that between 1995 and 2000 there was already a nearly 50 percent drop in the rate of inmate filings. But going specifically --
05-416 +++$+++ 41729 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Maybe because they thought they had to file on time.
05-416 +++$+++ 41730 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But there is no -- there is no indication anywhere of there being widespread defaults. But I should address your question about how this advances -- why the provision wouldn't be meaningless without procedural default. And there are least three ways that it is still meaningful. The first is, it removes any rational incentive for the prisoner to evade the grievance system. I'll come back to that in a second. I just want to say the second and third things are, it gives the State an opportunity to address the grievance, if it wants to, and, at a minimum, it delays and raises the degree of difficulty for the prisoner. But going back to the incentives, there are two basic reasons why an inmate might rationally want to evade the grievance process. And, I mean, there's this notion here of prisoners scheming to get around the grievance process and deliberate bypass. And it's completely overblown, because the -- there are two basic reasons the prisoner might want to. First, if proceeding with the grievance and having it adjudicated in the prison grievance system could somehow harm his later Federal suit. Second would be to get to Federal Court faster. Neither one of these things happens under the PLRA, even without a procedural default rule being read into it. On the first thing, the prisoner is not affected in Federal Court, unlike, say, a habeas case, where a prisoner may want to evade a State Court decision, because that decision will get deference in the later Federal habeas proceeding. Here, the grievance decision is of no force and effect. That incentive is not there.
05-416 +++$+++ 41731 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes it is. Because the whole -- one of the reasons you have reasonably short time is that you get the witnesses there, they remember it. If you have to file within 15 days with the prison, the prisoner does that, the guard is there, "Do you remember what happened?" "Yes. This, this, and this." "Who else was there?" "These people were there." You wait 3 months, the prisoner files a complaint, they ask the guard, "Do you remember?" "Not really. It was 3 months ago." "Who else was there?" "I'm not sure." Then he has -- you know, the evidence against him is much weaker when he files his claim in Federal Court.
05-416 +++$+++ 41732 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- Your Honor, I don't -- I don't think it really makes sense to say that, within this kind of time periods that we're talking about, that that's really going to help the inmate's claim, because -- I mean, we're dealing here within --
05-416 +++$+++ 41733 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, the point is that if he complies with the time limit, it's going to hurt his claim; therefore, he doesn't want to comply with the time limit.
05-416 +++$+++ 41734 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand, Your Honor, but everything here is within the framework of the section 1983 statute of limitations. And -- which is set, presumably, to be able to adjudicate claims with -- on the theory that it's fresh enough -- reasonably fresh if it's within whatever that period is in the particular State; 2 years, in many States. So, the idea that something -- that the guard is not going to be able to testify 6 months later is, I think, you know, maybe at the margins. It's not likely to affect this.
05-416 +++$+++ 41735 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you were suggesting that the prisoner had no incentive not to comply and go through the State grievance procedure. And it seems to me that the reason you have the short procedures are to maintain a fresh record that more accurately reflects the truth, and, since Congress was acting against the backdrop in which they thought there were too many frivolous cases, they thought that might be one way to limit those.
05-416 +++$+++ 41736 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the more frivolous the case, the more likely it is that it won't be remembered by a guard. I mean, you know, the suit is, "A guard spat on my painting," or something like that, you know. Who's going to remember anything like that 4 months later?
05-416 +++$+++ 41737 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, again, I think that, at a minimum -- even if you grant that there may -- the prisoner may see some advantage in that, there is, at a minimum, a substantially smaller incentive than you would -- than you would have in, for example, a habeas case. But I want to get to the second thing, which is, I think, the more likely incentive that existed before the PLRA. Before the PLRA is passed, if a prisoner wants to get to Federal Court as quickly as possible, the prisoner, the day after he suffers whatever injury he feels he has suffered, can go about filing his Federal claim. The PLRA, with or without a procedural default rule, prevents that. He can't do that, because, first of all, he has to wait until -- if he's going to avoid the grievance system for some reason, he has to wait until that time has run. But he then can't just go and file in Federal Court. If he just files in Federal Court, he's going to get bounced back, because he still has a potential remedy in the grievance system that he hasn't filed. The United States says that we've conceded that in systems where there isn't some sort of discretion that's clear to consider a late claim, that, in that case, the prisoner is not going to have to file. We do not concede that at all. I don't -- you can look at our brief, at page 43 -- I don't think we concede that. We do refer to the fact that California and many other States provide for discretion. But the fact is that, in any event, we're not talking, here, about -- with -- in -- with grievance time limits, we're not talking about something like a notice-of-appeal requirement that's jurisdictional, that's going to bar it from being appealed. If -- there's always a possibility, particularly since many of these systems are internal rules of the grievance system, that, one way or another, it can be considered. And I think --
05-416 +++$+++ 41738 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, all right, but the thing I don't understand in this, which is hard -- Is there any answer to this point from the other side? What this statute does seem to be about is exhaustion, which normally does carry with it the notion, "If you don't exhaust, you lose." Dozens of cases say that. And it seems to make it a requirement, not leaving it to the discretion of the prisoner. Well, your interpretation leaves it up to the prisoner. If the prisoner doesn't want to do it, he doesn't do it. He pays a price, he has to wait, but it's up to him. Now, that's the point that is bothering me the most, frankly.
05-416 +++$+++ 41739 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And what I'm saying now, Your Honor, is that he can't just wait and not file.
05-416 +++$+++ 41740 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why not?
05-416 +++$+++ 41741 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because he will not have exhausted until he files and has --
05-416 +++$+++ 41742 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no, but, I mean, that's a -- that sounds to me like a verbal gimmick, to tell you the truth. If he waits, and he waits to past the deadline, sure, he'll put a piece of paper in, but it'll be denied.
05-416 +++$+++ 41743 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, two things about that.
05-416 +++$+++ 41744 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't that true? So, I'm not counting he puts a piece of paper in, and it's -- in my way of speaking, if what's left for him to do in the system, because there is this deadline, 6 months, it's passed, it's now 9 months, so he says, "Here's my paper. I'm exhausting."
05-416 +++$+++ 41745 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Part of --
05-416 +++$+++ 41746 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Denied.
05-416 +++$+++ 41747 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Part of --
05-416 +++$+++ 41748 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Now, I'd say that's -- means he isn't exhausting. He's failed to exhaust, as I'm using the term.
05-416 +++$+++ 41749 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think -- again, first of all, it's a -- it's important to understand that we are saying he will have to file, in all circumstances. It's not necessarily clear --
05-416 +++$+++ 41750 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right.
05-416 +++$+++ 41751 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that the State --
05-416 +++$+++ 41752 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, I want to get rid of that argument. Use my --
05-416 +++$+++ 41753 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand.
05-416 +++$+++ 41754 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- terminology --
05-416 +++$+++ 41755 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Putting that --
05-416 +++$+++ 41756 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and now answer what I am, frankly, bothered by the most --
05-416 +++$+++ 41757 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, certainly.
05-416 +++$+++ 41758 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- which is what I just said. It leaves it up to him.
05-416 +++$+++ 41759 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ First of all, there is always the possibility, depending on the nature of the grievance, that the prison may address it. For instance, if the complaint is a failure-to-protect claim, and the prisoner is being harmed by being placed with another prisoner, who is -- who's dangerous to him, if the State gets that complaint late, they may -- they may very well still want to act on it and ameliorate that situation, and that's the kind of thing that could, in the end, satisfy the prisoner and have him not sue. But the other thing is, even if the State -- assuming the State doesn't address it, the prisoner, again, has to not just file that; there is an appeals process that normally he'll have to go through, although, in this case, the California -- the -- excuse me -- the prison appeals coordinator just said, "I'm not even going to file it, so you can't appeal." Normally, though, you would think you would be able to appeal. He'll have to go through the entire system. At best, for him, he's delayed a long time. And the way Congress approached this was to -- by provisions like for costs and fees and so forth -- was to attempt to dissuade prisoners from filing. This, at a minimum, is going to help to dissuade him from filing, coupled with the fact that, because he is not getting to court faster, he doesn't have what, before the PLRA, would have been the main incentive to bypass a system that otherwise isn't going to hurt him.
05-416 +++$+++ 41760 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems to me you're understating the amount of time that he's saving by failing to exhaust. It's not just if he waits six months and then puts it in. If he had filed within the right period, he would get a hearing at one level. And there may be as many as two other levels of review before he's fully off -- before he's fully exhausted. Now, here's a guy who -- you know, he's lying around in jail. He's -- this is a frivolous filer. He wants to get out of the jail, downtown, you know, to the district court in L.A., where he can look at the beautiful people and relieve the humdrum of prison life. He wants to get to district court as soon as he can.
05-416 +++$+++ 41761 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, there are a lot of provisions in the PLRA that may prevent him from actually attending, but -- [Laughter.]
05-416 +++$+++ 41762 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in -- in any event, I guess the point here is, first of all, he has -- there are appeal levels, whether or not -- no matter what the grounds something is rejected on, there are -- normally would be an appeal through the entire system. There is nothing requiring the State to speed it through the appeals process if the State feels that it's important for the prisoner not to be able to get to Federal Court as quickly as possible. And, also -- I mean, one thing that we're not getting to here, that I think is important -- well, I should state one more thing before leaving that. I mean, Booth also tells us that Congress did see value in requiring prisoners to file, even when it seemed very unlikely that they would get the relief that they were seeking. And the ways in which this requires a prisoner to file, and delays him, are significant in many of the same ways. But the other very important point here is that in considering the reasonableness of doing this with or without a procedural default requirement, sure, with procedural -- excuse me, a procedural default rule -- with that, of course, you're going to make the provision somewhat more effective, but there's a tradeoff. And the tradeoff is, you're going to make it more effective by kicking prisoners out of court on a nonmerits ground. And Congress -- the sponsors of the legislation made it clear they were not meaning to kick out potentially meritorious claims. You also are creating another bad incentive, which is, with this procedural default rule, the prison officials have the incentive to try to get rid of cases on nonmerits grounds, because if they rule on a -- on a procedural ground, then the prisoner can't file. If they rule -- if they address it on the merits, then the prisoner has the chance of going there. So, in that respect, the -- a procedural default rule makes it less likely something gets affected on the merits. But the point is, there's a policy tradeoff here, that there is --
05-416 +++$+++ 41763 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but --
05-416 +++$+++ 41764 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- no indication --
05-416 +++$+++ 41765 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- but as I interpret your argument, you're saying that there is some merit, some benefit, to avoiding the State administrative procedures. What you're saying is that, "You know, these" --
05-416 +++$+++ 41766 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor.
05-416 +++$+++ 41767 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "administrative procedures aren't all that -- they're cracked up to be. There's a good reason to avoid them." I --
05-416 +++$+++ 41768 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I'm --
05-416 +++$+++ 41769 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's a --
05-416 +++$+++ 41770 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- saying --
05-416 +++$+++ 41771 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that's a -- that's a difficult argument for us --
05-416 +++$+++ 41772 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To --
05-416 +++$+++ 41773 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- to accept.
05-416 +++$+++ 41774 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, to the contrary, Your Honor. I'm saying there's -- there is -- there is no good reason to avoid them. I certainly don't mean to be suggesting that, if I -- if I misspoke. But I think -- the important point here is, though, there's a real policy tradeoff. There is no indication anywhere in the language of the Act, or anywhere in the legislative history, that this is a policy tradeoff that Congress actually was willing to make. And I guess I didn't touch on the language, but there are numerous textual indications, as we argue in detail in our brief, even aside from getting to the word "exhausted," that Congress contemplated simple exhaustion, and there's no sign of any contemplation of a procedural default rule. The word "exhausted" itself, again, I think that habeas, for a number of reasons, is a much closer analogy, including the fact that this was passed practically contemporaneous with AEDPA. There was -- at one point, there were provisions in the same bill that -- one of which was an exhaustion provision in AEDPA, and one of which was the early version of this. There's no indication that exhaustion was used in different contexts there. And the habeas cases make clear that a defaulted claim is exhausted, and it's a timely requirement. On the legislative history, if there was an expectation that there would be this sort of procedural default rule and prisoners would forfeit claims -- and, as you can tell with 2- or 3-day filing deadlines some places, and other technical requirements elsewhere -- there would be expected to be a number of forfeitures, no indication in the legislative history that Congress thought one of the ways the PLRA would reduce suits was by causing forfeitures. And, in addition, it's important to understand that, although, as we concede, the provision will be -- it will not be as effective without a procedural default rule, but it still does have some effect without the procedural default rule, the problem with imposing a procedural default rule is that the consequences of that are very troubling, because what you'd be doing then is essentially incorporating every State, and local jail facility, for that matter, filing deadline as a de facto statute of limitations --
05-416 +++$+++ 41775 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Not necessarily.
05-416 +++$+++ 41776 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- for section 1983 --
05-416 +++$+++ 41777 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That -- that's what I find interesting. It might be, if you're representing the interests of defendants here, you'd love this to have the procedural default rule, because it will end up with the Federal judges all over the country systematically reviewing the exhaustion procedures -- or the -- yes, the remedies in the prisons. And where those remedies are not right or unfair or too short or have other problems with them, the judges will say, "You can't have this kind of remedy. If you want me to apply exhaustion principles, you can't do it."
05-416 +++$+++ 41778 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would like --
05-416 +++$+++ 41779 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And, therefore, we'll get a force for improvement. And that's, I thought, maybe why nobody wanted, really, to bring it up.
05-416 +++$+++ 41780 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would like to think that, Your Honor, but, actually, as opposing counsel has indicated, Congress eliminated the language -- the pre-existing language that placed some sort of requirement -- it removed the "plain, speedy, and effective" language, removed the "minimum standards" language. The indication was that they wouldn't be reviewed for the adequacy of the standards.
05-416 +++$+++ 41781 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I suppose you could add to that, that Mr. Himmelfarb wouldn't even accept "reasonable." He said it has to be "impossible" to comply with.
05-416 +++$+++ 41782 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think -- I think that's right. And I think that that's actually an indication that Congress was not expecting it to have this sort of harsh consequence, where you're taking whatever procedural rule from whatever State. Another thing about the PLRA, aside from removing the old language, is that one of the goals of the PLRA was to remove intrusive Federal judicial oversight from prison systems. And if you were going to be in a position of reviewing everything for reasonableness, you have exactly that kind of oversight saying, you know, "Your procedure is adequate. Yours isn't adequate." And that's what -- that's what Congress removed. The consequences also mean that if this procedural default rule is accepted, you could have even continuing violations, continuing unconstitutional conduct that would not be challengeable, could be insulated from Federal review after the passage of a short deadline or violation of whatever other procedure, fair or unfair, that a State -- that a State creates --
05-416 +++$+++ 41783 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Let me be sure --
05-416 +++$+++ 41784 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Feder --
05-416 +++$+++ 41785 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- I understand one thing about your position. You do agree, do you not, that in order to exhaust, even if the time has run the 15-day period, there is an obligation to go to the State and ask them to hear the case, even though it's untimely?
05-416 +++$+++ 41786 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I think there clearly is.
05-416 +++$+++ 41787 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So that you do say that you at least will give the State the opportunity to decide whether it wants to try and remedy it in an informal or hasty manner.
05-416 +++$+++ 41788 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-416 +++$+++ 41789 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
05-416 +++$+++ 41790 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And is that true even if the State does not have a procedure for reopening for late claims?
05-416 +++$+++ 41791 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I think -- I think it is. Because I think that until it becomes absolutely clear that the State --
05-416 +++$+++ 41792 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, suppose --
05-416 +++$+++ 41793 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- or the grievances --
05-416 +++$+++ 41794 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the State says, "We don't consider late claims." As they do here.
05-416 +++$+++ 41795 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sorry?
05-416 +++$+++ 41796 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose the State says, "We don't consider late claims."
05-416 +++$+++ 41797 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And may -- and if it does it as a binding rule that's not -- that's not subject to change, I suppose that that -- that that would be possible. But the fact is -- actually, a good example is, in one of the administrative cases that the United States cites in their brief, the United States versus L.A. Tucker Lines, what -- the argument there is, "We didn't need to present this argument to the Interstate Commerce Commission, because they had a rule that meant that they couldn't accept our claim, and the court -- and the court says no to exhaust. You do have to present the claim. They may change it."
05-416 +++$+++ 41798 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What if the claim is presented in a way that's gibberish, it's impossible to understand?
05-416 +++$+++ 41799 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Then it'll -- then, presumably, if the State rejects it on that ground, if he tries to file in Federal Court, he'll get sent back for having failed to actually complete his exhaustion obligations until he manages to file a --
05-416 +++$+++ 41800 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But he can --
05-416 +++$+++ 41801 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- claim that would satisfy --
05-416 +++$+++ 41802 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it can never be procedurally defaulted, because the claim isn't presented in a comprehensible form to the -- to the prison grievance officials?
05-416 +++$+++ 41803 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that maybe it's possible, in some cases, as a sanction for bad-faith conduct. Conceivably -- I'm not sure where that would come from -- but if he fails to present the claim in a -- in a way that it can be addressed, he has to -- he can't come to Federal Court until he presents it to them in a way in which it at least could have been addressed.
05-416 +++$+++ 41804 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is that procedural rule binding on him, but the time procedural rule not binding on him? I don't know why. I mean, if --
05-416 +++$+++ 41805 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's only binding --
05-416 +++$+++ 41806 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- they're procedural rules, you have to set it forth in a comprehensible manner, and you have to be on time.
05-416 +++$+++ 41807 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think that if the State were to say that you -- that, "This is definitively rejected, and we're not going to let him amend it," then, in that case, you would have satisfied exhaustion, as far as the -- but only if it's definitive. Otherwise -- well -- and I should just go back to the -- to the point I was making about a continuing violation. For instance, let's say there is a failure-to-protect claim. Someone is in danger, doesn't file. He's in -- he's in one of the States where it's 2 days. I think Michigan is one of those. He doesn't file within 2 days. The State has -- after that, can say, "You can't go to Federal Court, because you haven't met our deadline." In this case, here, there was a continuing violation that was alleged, and the -- and the State basically said, "Our rule is, even if it's continuing, you have to file it within 30 days -- or 15 days of when it first arose." And, I mean, you can imagine a number of circumstances where this rule here would mean -- again, any prison or local jail procedural rule, no matter -- is a -- presumably, until you get to the point of violating due process, would be a basis for saying that prisoners don't have to go to court. There is nothing in the words of the statute that suggest that, nothing in the legislative history of the statute that suggest it. The only real argument on the other side is that Congress must have meant to include it, because that's what "exhaustion" usually means.
05-416 +++$+++ 41808 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Feder, there is one anomaly that the Government points out. And I -- before you sit down, I'd like to know what your answer is. They said, "Imagine one prisoner who begins the grievance process on time, he goes to step two, goes to step three, then he stops. And then another prisoner who waits til the time has come and gone, she files. The prison says, 'We don't take late filings.' The second prisoner gets to court, and the first, who did go through three steps, but stopped short of the fourth, doesn't have any access to Federal Court."
05-416 +++$+++ 41809 +++$+++ TRUE +++$+++ MR. FEDER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, except that he's not permanently barred, because if he -- if he hasn't exhausted, he gets sent back and has to at least file the last appeal. Thank you, Your Honor.
05-416 +++$+++ 41810 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Feder. Ms. Perkell, you may have a minute for rebuttal.
05-416 +++$+++ 41812 +++$+++ FALSE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Three quick points, Your Honors. It's not so much that the Ninth Circuit's rule creates an incentive for an inmate to file untimely, it's that it doesn't create the incentive to file timely. Moreover, Respondent is relying on the habeas corpus analogy, but, at the same time, he wants the results under the PLRA to be different from under the habeas corpus statute. And, third, untimely -- the rule of untimely exhaustion adopted by the Ninth Circuit undermines the purposes of the statute, because, first, prisons will usually enforce their deadlines, and grievances will not receive any merits review before they reach Federal Court. And, second, because grievances filed untimely, and particularly months or years untimely, deprive prisons of a genuine opportunity to investigate and respond to prisoner -- or they do deprive prisons of a genuine opportunity to investigate and respond to prisoner grievances, because oftentimes witnesses, evidence, and, in particular, recollections, are no longer available. Unless the Court has any --
05-416 +++$+++ 41813 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel.
05-416 +++$+++ 41814 +++$+++ TRUE +++$+++ MS. PERKELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
05-416 +++$+++ 41815 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The case is submitted.
05-465 +++$+++ 41820 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Mohawk Industries v. Williams. Mr. Phillips.
05-465 +++$+++ 41822 +++$+++ FALSE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: This case involves the somewhat murky concept of an association-in-fact enterprise within the meaning of section 1961(4) of title 18, which is the RICO statute, and actually the specific language in this case, which is reproduced in the Petitioner's brief at page 2, is a group of individuals associated in fact. In this case, there are two fairly obvious enterprises that one might have expected a plaintiff to identify in this -- in its -- in their complaint. The first one is Mohawk Industries, which is their employer. That is a corporation, clearly eligible to serve as an enterprise. But, of course, the problem is if you identify Mohawk as the -- as the enterprise, you then cannot sue Mohawk as the person under this Court's decision in Kushner. And so Mohawk was an unattractive enterprise under -- on that -- because of that reason. Second, there are the recruiting and temporary agencies which are likely corporations and certainly are legal entities and, again, are eligible to be enterprises within the meaning of the statute. But, again, here the problem is that there is no indication that Mohawk in any way directs or conducts the affairs of those agencies, and therefore, under this Court's explicit holding in Reves, there would no -- there would be no basis for liability. And so the plaintiffs have attempted to sort of move around those two substantial obstacles to stating a claim by laying the claim to what is called an association-in-fact enterprise. Their complaint at paragraph 76, which is on page 23 of the joint appendix, states this fairly broadly. Mohawk has participated in an association-in-fact enterprise with third party employment agencies and other recruiters. The question is what is this enterprise and does it have legs for purposes of bringing a RICO action. In analyzing that question, it seems to me there are two subissues within that. The first one is whether or not the language of section 1961(4) precludes using the corporation as part of an association-in-fact enterprise because 1961(4) explicitly -- or specifically refers to individuals, and everyone has recognized, including I think the Respondents and the United States, that if -- if it were clear that association-in-fact enterprises or that enterprises limited to individuals under these circumstances, given the structure of the statute, the corporation would not be permissibly brought in on this particular theory. So you have to get past whether or not that is a limiting principle under this definition.
05-465 +++$+++ 41823 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If we were --
05-465 +++$+++ 41824 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Before you get to your second point, why is that first point before us? You -- you didn't raise it in the courts below. You didn't raise it in your petition here. Your question presented it -- I'd like to stretch to reach it, but I don't even find it necessarily included within the question presented. The question presented is whether a defendant corporation and its agents engaged in ordinary, arms-length dealings can constitute an enterprise in light of the settled rule that a RICO defendant must conduct or participate in the affairs of some distinct enterprise and not just its own affairs. It seems to me it's only question two you put before us.
05-465 +++$+++ 41825 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, the -- the answer -- a couple answers. First of all, obviously, we could not have raised this before the -- either the district court or the court of appeals because the law was absolutely settled in the Eleventh Circuit.
05-465 +++$+++ 41826 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ As it is in nine other circuits.
05-465 +++$+++ 41827 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As it is in nine other circuits.
05-465 +++$+++ 41828 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And all circuits against you.
05-465 +++$+++ 41829 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To be sure.
05-465 +++$+++ 41830 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And we would have been unlikely to accept cert on -- on point one alone I think.
05-465 +++$+++ 41831 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. But the second -- but the question is not -- the question is whether or not that issue is fairly subsumed within the question that was actually presented, and that --
05-465 +++$+++ 41832 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think it's -- it's a little more difficult in your case because you're pursuing an interlocutory appeal, which you were allowed to do only because you've got double certification and you got certification on the questions that the district court addressed. You can't expand a 1292(b) order to include things that were not decided below.
05-465 +++$+++ 41833 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the question presented in this case -- and it's the same question that was presented below -- is whether the defendant corporation and its agents under these circumstances can constitute an enterprise.
05-465 +++$+++ 41834 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In light of the settled rule that a defendant must conduct or participate in the affairs of some distinct enterprise and not just its own affairs.
05-465 +++$+++ 41835 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To be sure. But the --
05-465 +++$+++ 41836 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If you hadn't included that last part, in light of, but it seems to me you're focusing on the -- on the particular claim that you're making.
05-465 +++$+++ 41837 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Justice Scalia, the in light of certainly raises the secondary issue, but it's still -- I mean, the rule is whether it's fairly subsumed within the question. And it is a logically prior question whether or not the statute extends to this particular situation.
05-465 +++$+++ 41838 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It is logically prior, and I hate to go through all the trouble of figuring out this case if, indeed, corporations are ineligible anyway. I mean, you know, we're -- we're answering a totally hypothetical, nonexistent question.
05-465 +++$+++ 41839 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the situation that's presented here is identical to the situation that existed in McNally v. United States, Justice Scalia. In that case, the question was whether or not an intangible rights theory of mail fraud could be extended to include nongovernment officials. That was the specific question presented in that case, and that's the -- the question the Court granted. And every court of appeals had interpreted that statute to say that intangible rights theories are valid under that statute. And -- and that issue was not adverted to in the petition, and it was briefed in this Court --
05-465 +++$+++ 41840 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And they weren't --
05-465 +++$+++ 41841 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and it was regarded as fairly subsumed just as --
05-465 +++$+++ 41842 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- they weren't --
05-465 +++$+++ 41843 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, Justice Ginsburg.
05-465 +++$+++ 41844 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- they weren't -- your problem is you don't have a final judgment. The only way that you can get even to the court of appeals is on that 1292(b) order. And I thought that the function of 1292(b) was to say specify the questions that are so important that they have to be decided and appealed before there's a final judgment. And whatever there might have -- whatever one might read into a question presented, I don't think that 1292(b) orders have ever been treated that way.
05-465 +++$+++ 41845 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I don't have any specific authority to the contrary, although the other side didn't argue 1292(b) as in some sense a limitation here. And I don't see anything in this Court's rules which broadly authorize the Court to grant certiorari to any question that's fairly subsumed within the question presented. And it is a totally artificial inquiry to sit here and say, you know, how are we going to analyze what is --
05-465 +++$+++ 41846 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose we get through that. I see the artificial part. Just what is it? Piling Pelion on something or other. Mountains that you pile one on top of the other. But your opponents have cited in your brief -- in the brief on page 12 that counsel for Mohawk said to the court, specifically, Mohawk agrees that a corporation can be both a RICO person and part of an association-in-fact enterprise. Now, if we can overcome all these other problems --
05-465 +++$+++ 41847 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-465 +++$+++ 41848 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- what do we do about that particular concession?
05-465 +++$+++ 41849 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the clause that introduces that is under current law, and that's absolutely true in the Eleventh Circuit. Under current law, as it existed in the Eleventh Circuit when we wrote that, there was no question that a corporation can be included within an association-in-fact enterprise. Therefore, all we were doing was conceding what the state of the law was in the Eleventh Circuit and not questioning that, as -- as, candidly, we had no ability to do that. It would have been an utterly futile gesture to have raised this issue at any point prior to. We could have raised it in the petition for certiorari, to be sure. We -- we think it is fairly subsumed within the question presented, and we also think it would be an -- an utterly artificial exercise to try to analyze what is an association-in-fact enterprise without first deciding whether or not a corporation could be included in the first instance because, as Justice Scalia says, if they can't, then it seems to me this is a substantially easier question, and also it is an extraordinarily important one. It is true that the courts of appeals have lined up consistently on the other side of this issue, but it is equally true that none of them has analyzed this issue with anything near the kind of care that would at least give me comfort that they've finally and fully resolved the issue. And we're not going to get a more thorough vetting of it at this point because the circuits are -- are at this -- at this stage essentially lined up. So the right time and opportunity for the Court is here.
05-465 +++$+++ 41850 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, unless somebody raises it. Unless somebody raises it below to preserve it for the rehearing en banc or -- or some other way.
05-465 +++$+++ 41851 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But all of those courts are going to say the same thing, which is that this issue has been resolved. It's possible, presumably, you might get an en banc review on it, but again, you don't have the question -- you don't have a split anywhere other than some district court decisions that have -- that have recognized our interpretation. The issue is squarely posed here at this point. It's been fully briefed for this Court.
05-465 +++$+++ 41852 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what -- what sense would it make on the merits to get your interpretation on the merits, which would mean, I guess, that five individuals could be an enterprise because that's a group of individuals.
05-465 +++$+++ 41853 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that's true.
05-465 +++$+++ 41854 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Five labor unions couldn't. Five corporations couldn't. One individual and four labor unions couldn't. One individual and four corporations couldn't. One individual and three partnerships couldn't. And -- but what -- what sense would that make?
05-465 +++$+++ 41855 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because all of those various combinations can still be attacked under the theory of RICO by just simply structuring your -- your enterprise in the proper way. It is true you can't broaden it. You can't expand the enterprise definition in order to include a variety of different elements, but there's no way -- I mean, in this case, for instance, they could have named Mohawk as the enterprise. They could have named the -- the recruiting agencies as the enterprise. They could have named the corporate officers as the enterprise, and they could have dealt with all of them as a conspiracy. And all of those are ways to get at precisely the issues that you identify, Justice Breyer.
05-465 +++$+++ 41856 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If -- if --
05-465 +++$+++ 41857 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the answer --
05-465 +++$+++ 41858 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- if Mohawk were a partnership instead of a corporation --
05-465 +++$+++ 41859 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-465 +++$+++ 41860 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the partnership is an association of individuals.
05-465 +++$+++ 41861 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, a partnership is identified specifically under the statute as a -- as a -- as an enterprise -- as eligible for an enterprise.
05-465 +++$+++ 41862 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So if the answer is yes, if Mohawk had been a partnership, you would not have this particular objection.
05-465 +++$+++ 41863 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. That wouldn't be this particular --
05-465 +++$+++ 41864 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it's only the corporate form.
05-465 +++$+++ 41865 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, no. If we were a partnership, it couldn't be in an enterprise with -- with an association of individuals. The question is --
05-465 +++$+++ 41866 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's --
05-465 +++$+++ 41867 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- does -- can you have an associational enterprise that extends beyond individuals, that gets -- that goes beyond the gangs and their family.
05-465 +++$+++ 41868 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's why I'm asking you about the partnership because it is an association of individuals. So I'm not clear on what your answer is. No partnership could be treated just like a corporation. They're not an individual? Or partnerships are okay because there's not a separate entity. It's a -- it's a association of individuals.
05-465 +++$+++ 41869 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, let me be clear on this, that if -- if you just bring an action against the partnership qua partnership you could clearly do that because that's defined as a -- as a legal entity --
05-465 +++$+++ 41870 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. Would the --
05-465 +++$+++ 41871 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- for purposes -- if you're trying to take the partnership and tag it to another group of rag-tag individuals, that would not be an enterprise in fact because that's not an -- an association of individuals. It's a partnership which has an entity apart from the individuals. Now, if you disaggregated all of the individuals within the partnership and called them individuals and said that they group with another group of individuals, then, yes. I think if you could demonstrate that there is the loose organization, common purpose, and all of the requirements for having an association-in-fact available, sure, that wouldn't be any problem.
05-465 +++$+++ 41872 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If this provision is exclusive, as you claim it is -- it's intended to be an exclusive definition, why -- why would they include union, just union and individuals? What's magic about a union that --
05-465 +++$+++ 41873 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because --
05-465 +++$+++ 41874 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that is not equally magic about a partnership or a corporation?
05-465 +++$+++ 41875 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Well, because what they have -- you have to go back to the original list. The list starts off with individuals, corporations, partnerships, associations, and other legal entities, unions, which is in addition to that because it's not a legal entity, or at least there was case law at the time --
05-465 +++$+++ 41876 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, I see.
05-465 +++$+++ 41877 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that it's not a legal entity. And then other associations.
05-465 +++$+++ 41878 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This refers to a union that is not -- is not an association.
05-465 +++$+++ 41879 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. This is just a union.
05-465 +++$+++ 41880 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or any legal entity.
05-465 +++$+++ 41881 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-465 +++$+++ 41882 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ A union that is not --
05-465 +++$+++ 41883 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's just an additional item in the list.
05-465 +++$+++ 41884 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- not a legal entity. I see.
05-465 +++$+++ 41885 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But why would they use includes in that provision and means in other provisions?
05-465 +++$+++ 41886 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because I think they viewed those as absolutely synonymous, Justice Alito, and -- and the reason I think that is because we know that in some instances they use including but not limited to, which reflects that Congress recognized that includes in some contexts is an exhaustive listing, and I think they thought in some contexts, meaning 1961(4), that it was an exhaustive listing. And also, it's important to look at the other definitions of 1961(4), and I think this is the most important element of the other side's submission in this case because they do no business with any of the other definitions. The Attorney General, the definition of property for forfeiture purposes, those are unquestionably exhaustive lists. At least, that's the way I -- we argued it. They didn't respond to that. And yet, those are introduced with the term includes. So it strikes me that the best contextual evidence of what Congress intended here was that includes would be used exhaustively and that the use of individuals of associated in fact would be used as a limiting principle, not as part of an exhaustive principle that expands the scope of this beyond -- beyond -- into a realm where it becomes nothing but a mere conspiracy statute, which is what it is today under this -- under this particular theory. That's -- unless there are further questions about the straight statutory interpretation question, then I would go to the second issue, which is assuming that corporations can, nevertheless, be involved in association-in-fact enterprises, does this state such a thing. And here, you have to go back to the Court's opinion in Reves, and in Reves, what the Court held is that liability depends on showing that the defendants conducted or participated in the conduct of the enterprise's affairs, not just their own affairs. Okay? So it is an element of RICO liability that you have to distinguish the -- the corporate defendant's affairs in that case and -- and the affairs of the -- of the enterprise in this case.
05-465 +++$+++ 41887 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And don't they do that by -- don't the allegations do that here by claiming that the corporation was manufacturing or providing false Social Security cards and was giving aid to the immigrants if the -- the law got too close to them? I mean, that is not merely the conduct by a corporation of the normal business of hiring and employing people. Isn't that the sort of extra that is alleged that takes this out simply of the -- of the category of the -- of the corporation conducting its own affairs?
05-465 +++$+++ 41888 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, that is the only allegation that comes remotely close to suggesting anything along those lines, but I -- my submission to you is that it doesn't get you there because what it says is that the recruiters are sometimes assisted -- it does say the recruiters -- by Mohawk employees who carry Social Security cards which they use for prospective or existing employees' needs to assume a new identity. That's when they come to Mohawk as applicants or as employees, Mohawk provides them with this identification. That's the allegation. That's simply Mohawk conducting its own affairs. That's not conducting or directing the affairs.
05-465 +++$+++ 41889 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, maybe I misunderstood the thrust of the allegation. I thought the thrust of the allegation was that Mohawk was acting illegally in providing phony Social Security cards.
05-465 +++$+++ 41890 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't doubt that there's a claim that -- that there's illegality. All of this is permeated with claims of illegality.
05-465 +++$+++ 41891 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Doesn't -- doesn't that get them at least to -- through the motion to dismiss, and doesn't it at least get them to summary judgment?
05-465 +++$+++ 41892 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so because even in Reves, the -- Ernst & Young had been found to have engaged in illegality, that there was -- that there was securities fraud involved there. So that's -- that doesn't distinguish it. The fact of illegality would make it a conspiracy, but it doesn't demonstrate either what the -- what the association-in-fact enterprise is and what are its affairs that are distinguished from the affairs of the corporation.
05-465 +++$+++ 41893 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But in -- in Reves -- and if -- and -- and you -- you may well correct me on this because I'm -- I'm -- my memory is not precise. But I thought in Reves, in effect, what they did was to lie in the course of doing the sort of the thing that they normally do. Here, the allegation is that they were doing something, providing phony ID's, that employers don't normally do. Isn't -- and, you know, maybe that's a fine line, but is -- is it not a fine enough line to get it out of Reves and get it beyond the motion to dismiss?
05-465 +++$+++ 41894 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Justice Souter, because -- because the -- it's a question I think of abstraction. What we normally do is hire employees and review their applications. Now, in that process, we've been alleged to engage in illegal acts by providing them with false identifications. But I don't see how that's any different from the Reves situation where the claim is that you're providing ordinary auditing advice, but in the process you're lying. You're engaged in illegal activities. It seems to me it is precisely the same problem in both situations.
05-465 +++$+++ 41895 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, there is -- there is a common element of illegality, but the distinction is that in Reves, you're supposed to be providing these services, making out statements, et cetera, and you put the wrong numbers in them.
05-465 +++$+++ 41896 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Intentionally.
05-465 +++$+++ 41897 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Whereas in -- in this case, an employer does not normally go about providing phony ID's or any ID's for the people it hires. It says, who are you? What's your Social Security number? And -- and there's -- there's an affirmative act here.
05-465 +++$+++ 41898 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Justice Souter, I don't doubt that, but the question is what is the legal standard in Reves. And Reves doesn't say, did you engage in illegality, and Reves doesn't say, can we make out a claim of conspiracy. Reves says what you have to demonstrate is that you are conducting or directing the operations or affairs of some entity, apart from yourself. And here, all we're doing is giving ID cards to our either actual or potential employees.
05-465 +++$+++ 41899 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In -- in -- yes, but you're doing it in connection with a -- a joint recruitment activity. In other words, the -- the agencies that you hire to get the workers up to the door are not going to succeed very well if -- if all the workers are going to arrive without any papers and without any -- any indication like a Social Security card and so on that they can be part of -- of the legal work force. So there's -- there's something extra being done both by the -- the recruiters and by you, and the extra, in effect, is a -- a scheme to provide phony ID's that suggest that these people are -- are lawful rather than -- than unlawful immigrants.
05-465 +++$+++ 41900 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But that still doesn't seem to me, Justice Souter, to satisfy the Reves standard, which is not just that there has to be something more than conducting your own affairs immediately, although that's important, and I don't think that -- I don't think you can show that -- either that we went beyond conducting our affairs or that the recruiters went beyond conducting their affairs. All of these allegations break out that way. But what Reves says you have to do is demonstrate that you conducted or directed the affairs of whatever this association-in-fact entity is.
05-465 +++$+++ 41901 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so that if you charged --
05-465 +++$+++ 41902 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that's the part that's missing. I'm sorry.
05-465 +++$+++ 41903 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that if you charged the workers, you know, $10 for their fake ID cards, you think that would be a different case.
05-465 +++$+++ 41904 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't think either of those --
05-465 +++$+++ 41905 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because there, that's -- there, you -- you -- there's a separate enterprise basically selling ID cards, and that's not part of Mohawk's business. But if you're just hiring them the way you hire other employees, illegally as it's alleged, that's Mohawk's enterprise if there's some separate illegal activity?
05-465 +++$+++ 41906 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, see, under those circumstances, I wouldn't have any problem calling Mohawk the enterprise. I mean, that's the whole point of this. The -- the logical enterprise here is the corporation. The question is do you go beyond that to create these completely artificial entities. I mean, you know, this -- this associational enterprise doesn't exist except in the minds of the plaintiffs.
05-465 +++$+++ 41907 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Phillips, I -- I tend to agree with that, but I -- I just hate to get the lower courts into this business of determining when a corporation is going beyond its business. Your -- your discussion with Justice Souter I think indicates how -- how hard that is, or some of the examples that the Government brings up, such as a drug company that -- that sells drugs illegally, violating the drug laws. Is that part of its business or not part of its business? I -- I really don't -- don't want to buy into that.
05-465 +++$+++ 41908 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think it's a little late in the day, Justice Scalia, because that is precisely the standard the Court articulated in Reves. It said the question is not do you -- are you -- are you conducting the affairs of your own operation, however that's defined. But I'm not sure whether you need to -- you need to define. I mean, you know, in some ways, this also goes to why it -- it's a mistake to get into this in the first place because if you just said it has to be individuals associated in fact, you don't have to get into any of this inquiry. You could obviate the need to evaluate all of these problems in one fell swoop. But even assuming that you still want to live in this world, you still -- it seems to me you've got to identify what it is -- what -- what is the nature, what is the loose organization of this separate enterprise, and then what are its functions. And then you have to evaluate how it is that the defendant is, in fact, operating or conducting or directing the affairs of that enterprise. And that's what's missing, Justice Souter, in -- in footnote -- or excuse me -- in paragraph 76 because while it goes to -- you know, it says we paid for illegal aliens to be employed. Okay, well, that -- that's clearly hiring. That's the first one. The second one is they have temp agencies and they pool their employees and they loan them to us for a fee. Well, that's the business of temp agencies. That's what they do. They transport employees to -- so they'll have them available in their pool. That's not -- we don't direct any of that. We -- we are their -- we are -- it's an arms-length deal.
05-465 +++$+++ 41909 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, but I still think sooner or later we have to come back to something that you and I went over a moment ago, and that is the -- one function, maybe the function, of -- of the -- of the -- the entity claimed here is -- is providing cover for the illegal status of the aliens. And it seems to me that there is at least a bare claim here that Mohawk is directing the affairs or the business of -- of this third entity --
05-465 +++$+++ 41910 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- the --
05-465 +++$+++ 41911 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- by -- by the way that it is -- allegedly provides phony Social Security cards.
05-465 +++$+++ 41912 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, according to the allegation in paragraph 77, it just says obtaining illegal workers. It doesn't say anything about providing them with cover, that the common purpose of this enterprise --
05-465 +++$+++ 41913 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where -- where do we -- you're going to have to help me out then. Where -- where in the -- the pleadings or the -- the papers do we get into the Social -- do we get the allegations of the Social Security card?
05-465 +++$+++ 41914 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's paragraph 76.
05-465 +++$+++ 41915 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
05-465 +++$+++ 41916 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that's a factual allegation. But -- but it -- but all I'm saying is --
05-465 +++$+++ 41917 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But isn't that factual allegation, as a bare matter, sufficient to satisfy the objection that you raise, that something more than merely the activity -- the conduct of -- of their separate business is going on?
05-465 +++$+++ 41918 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, because what you still need -- there's still a higher -- it's not just the higher threshold that it's got to be something that moves beyond what the corporation does. It has to involve the direction or the conduct of the operation of a separate entity.
05-465 +++$+++ 41919 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if -- if, in fact, it is the case that Mohawk is -- is providing the Social Security cards, isn't it directing the means by which the third -- the third entity is, in effect, illegally -- or supplying illegal workers in -- in this -- this joint enterprise?
05-465 +++$+++ 41920 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, obviously, we're going to disagree about this I think, but at the end of the day, I think the bottom line is what we're doing is when the applicant shows up at our doorstep or when they have, in fact, been hired, if for -- and this is the allegation. Obviously, none of this is true. But this is the allegation. That we then -- we then supply those employees -- our employees and our applicants with these false ID's. That's part of the process of our own hiring.
05-465 +++$+++ 41921 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it reasonable -- is it reasonable to suppose, on the basis reading the allegations as they have to be read at this stage of the proceeding -- is it reasonable to infer that -- from the allegation that there is an understanding between Mohawk and the employment agencies that Mohawk will provide this documentation and therefore make the scheme work?
05-465 +++$+++ 41922 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it -- the allegation certainly doesn't say that.
05-465 +++$+++ 41923 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It doesn't say that in any -- any black letter statement.
05-465 +++$+++ 41924 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is only one sentence in the allegation that even remotely says anything about this. And again, Justice Souter, the -- the fundamental assumption here is that if there's something that goes anywhere beyond our affairs, that that by itself is sufficient to take you out of Reves. And what I would argue strenuously is that what Reves says is you have to be conducting or directing the operations of the other entity's affairs. And providing this doesn't conduct or direct anything. It may -- it may be a conspiracy. It may satisfy some interrelationship, but I don't see how it gets you to the point of an existing enterprise. If there are no further questions, I'd reserve the balance of my time, Mr. Chief Justice.
05-465 +++$+++ 41925 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Phillips. Mr. Foster.
05-465 +++$+++ 41927 +++$+++ FALSE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Thank you, Mr. Chief Justice, and may it please the Court: As Mr. Phillips makes quite clear, Mohawk does not like the way the plaintiffs have written their complaint in this case. He would prefer -- they would prefer that the enterprise be Mohawk Industries and certain individuals within the corporation be named as the RICO persons. But the plaintiffs write their complaint and the plaintiffs are the master of their complaint, and at this stage, as far as the case has proceeded, which is only up to a motion to dismiss, that's what we are to deal with, whether this states a cause of action under RICO. There seems to be no dispute in the lower courts that corporations can form associations of fact with other entities and that a corporation can be a person conducting the affairs of such an entity. We have alleged that here.
05-465 +++$+++ 41928 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There may be no dispute about it, but it does seem kind of strange to encompass them under the term individuals when the same statute uses individuals and corporations separately.
05-465 +++$+++ 41929 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Mr. Chief Justice. But actually the term -- the definition of enterprise in RICO starts with the word includes and it also states any union or group of individuals associated in fact, though not a legal entity. The word union is not defined. According to Mohawk, union should be interpreted to mean a labor union, but that makes no sense structurally because the first part of that definition includes legal entities, and if reference were being made by Congress to a labor union, then the union would have been inserted in that part of it because at the time RICO was written in 1970, Congress had already enacted the Labor Management Relations Act of 1946, which made labor unions suable entities.
05-465 +++$+++ 41930 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, do you agree that that's an exhaustive list in subsection (4)?
05-465 +++$+++ 41931 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think it's an exhaustive list, Justice Alito. It -- the Court has held in previous cases that RICO used concepts and terms of breadth. This would appear to be that, as the Court said in both H.J. v. Northwestern, Russello, and Turkette.
05-465 +++$+++ 41932 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, would you agree that includes is meant to be exhaustive in many of the other -- in a number of the other subsections of this definitional provision?
05-465 +++$+++ 41933 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I don't think so. I believe that the way includes is actually used, for example, in the definition of Attorney General, opens a long definition which is itself exhaustive, but leaves room for change. Attorney General was written in a way that allowed any official to be designated by the Attorney General to fall within that description. There's room for designations and there's room for change in the Justice Department as it occurs over time.
05-465 +++$+++ 41934 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't see how your point regarding union helps you any because if -- if you -- if you win the point that union doesn't mean a labor union, you still have, as -- as the end of this definition, any union or group of individuals.
05-465 +++$+++ 41935 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-465 +++$+++ 41936 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ A union of individuals or a group of individuals. You're still stuck with individuals.
05-465 +++$+++ 41937 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think union is -- it says union or group of individuals. I think union is something --
05-465 +++$+++ 41938 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Either union means labor union or it means a union or group of individuals.
05-465 +++$+++ 41939 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would -- Justice Scalia, I don't believe that union means labor union because --
05-465 +++$+++ 41940 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
05-465 +++$+++ 41941 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- if it meant a labor union there --
05-465 +++$+++ 41942 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'll give you that. Then -- then it means a union or group of individuals.
05-465 +++$+++ 41943 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A union or group of individuals.
05-465 +++$+++ 41944 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right. So, you know, you're just as bad off.
05-465 +++$+++ 41945 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the word individual is not defined in the statute either, and --
05-465 +++$+++ 41946 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's not defined in the statute, but the prior list in the same sentence says individual, partnership, corporation. So you'd assume whatever an individual is it's different than a corporation or they wouldn't have had to say corporation again.
05-465 +++$+++ 41947 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The enterprise alleged here, Mr. Chief Justice, is actually not a single corporation. That first list would not encompass a group of corporations. A group of corporations is actually not a single legal entity. It's a group of legal entities that have combined to commit a pattern of racketeering activity. It doesn't neatly fit into the first definition, which seems to encompass only single entities. And so every single circuit court in the -- in the country to examine this question has held that Congress didn't expect, anticipate, or intend to exclude groups of legal entities from being -- being a -- a RICO enterprise. They were captured by the second part of the definition.
05-465 +++$+++ 41948 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There is --
05-465 +++$+++ 41949 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Still, it -- it -- you know, we usually talk about person can mean a corporation. This says individual. A person is defined in -- in sub (3) just above it. A person includes any individual or entity. Then the next thing says individual. So it's not a -- it doesn't sound like a corporation.
05-465 +++$+++ 41950 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the use of the word union or group of individuals seems to broaden it. The word includes at the beginning of the definitional section broadens it even further. As this Court held in footnote 14 of the -- in the Sedima decision, the use of the word requires in that definitional section was key to understanding what it meant, and it said requires, in terms of pattern, meant more than simply two predicate acts. The word requires had to mean more, and it had to be read in context. We think that this should be read in context.
05-465 +++$+++ 41951 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought your position was it shouldn't be read at all because --
05-465 +++$+++ 41952 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-465 +++$+++ 41953 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- this -- this Court is a court of review, and to take a question that was never certified, even to the court of appeals, to have this Court address it seems to me very strange. It seems to me to erode rather starkly the final judgment rule, which we don't have here.
05-465 +++$+++ 41954 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I agree with that, Justice Ginsburg. I don't think the Court should entertain the question at all. And --
05-465 +++$+++ 41955 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what we're reviewing is a ruling, not a question. You certify a ruling. Now, it's usually set out for the court of appeals so they know what the question is.
05-465 +++$+++ 41956 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We are reviewing a ruling --
05-465 +++$+++ 41957 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What you're reviewing here is a ruling.
05-465 +++$+++ 41958 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's a ruling. We're not reviewing a final judgment. All it is is a ruling. It came to this Court and the question that this Court accepted for certiorari has actually been -- all but abandoned. Mr. Phillips hardly used the word agent at all, if at all. He doesn't argue why his rule about distinctness should be applied here. There is no allegation or he doesn't make any legal argument that the members of this association-in-fact enterprise should be deemed to be agents of Mohawk. That's not alleged in the complaint. That's not the way the complaint was written. They're all alleged to be separate legal entities. They're -- for the motion to dismiss stage, that is enough to satisfy this Court's requirement in Cedric Kushner that the members of an enterprise be distinct from --
05-465 +++$+++ 41959 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is there different about your proceeding to treat this as a RICO enterprise that isn't covered by normal corporate criminal conspiracy law? What does RICO add here?
05-465 +++$+++ 41960 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ RICO does add more. It can't be a mere criminal conspiracy to commit a single crime. There needs to be an association of entities that associate over a considerable period of time to meet either closed-ended continuity or open-ended and commit a pattern of criminal acts that are related to each other, that go on for --
05-465 +++$+++ 41961 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So they hire more than one person.
05-465 +++$+++ 41962 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They hired -- and the association itself, Mr. Chief Justice, would have to exist over a -- a significant period of time. There would have to be -- there's this durational element --
05-465 +++$+++ 41963 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How is that different than a normal contractual relationship that a corporation is going to have with any number of suppliers, vendors, agents?
05-465 +++$+++ 41964 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Normal contractual relationship is not to commit a felony, and if --
05-465 +++$+++ 41965 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but I'm trying to see what RICO adds to the normal conspiracy law --
05-465 +++$+++ 41966 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-465 +++$+++ 41967 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that would otherwise be applicable. So we're assuming that the arrangement is there and that they're engaging in illegal activity.
05-465 +++$+++ 41968 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right. And then we have the pattern and the durational aspect of it. And it has to affect interstate commerce -- the enterprise does -- and in order to have a civil cause of action --
05-465 +++$+++ 41969 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But Congress didn't -- to be fair, Congress did not enact RICO because it was concerned that criminal conspiracy law, applied to corporations, didn't adequately touch interstate commerce. The whole point is that they had something significantly different in mind, and your allegations in the complaint seem to be fully met by application of criminal conspiracy law.
05-465 +++$+++ 41970 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Mr. Chief Justice, a RICO enterprise among -- is a conspiracy to commit crime, but it's conspiracy plus. The plus is --
05-465 +++$+++ 41971 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But isn't -- isn't the plus simply more than one act?
05-465 +++$+++ 41972 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The plus is more than one act. There has to be a pattern.
05-465 +++$+++ 41973 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So -- so -- no, but I mean literally. As -- as long as -- as two illegal workers are going to be hired, isn't that sufficient to convert -- to go from conspiracy to -- to RICO on your analysis?
05-465 +++$+++ 41974 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There would have to be at least two, and there would -- it would have to go on to meet the Court's pattern requirement. Two generally is held not to be enough if it's a closed period of time that's over. But this complaint alleges an open period, and two would be enough, coupled with the allegation that this is the normal way for the company to conduct its business.
05-465 +++$+++ 41975 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm trying to give you a chance to explain why this looks like RICO rather than just criminal conspiracy. And you've come up you said interstate commerce. There's got to be more than one. Well, none of that really suggests a distinction. What -- what is it that makes this a RICO case rather than just a criminal conspiracy case?
05-465 +++$+++ 41976 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's because we have a joint venture of entities operating over a long period of time that have victimized a large number of people, and there's a pattern of racketeering activity. And --
05-465 +++$+++ 41977 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There's a pattern because they hired more than one.
05-465 +++$+++ 41978 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They hired more than one. In fact, the statute requires 10 in a 12-month period. So there would actually have to be 10 for at least 2 years. So that would mean at least 20 illegal aliens have to have been hired under the 1324 section that's alleged in this complaint. And probably for more than 2 years or an ongoing pattern of racketeering activity, and a person has to have been proximately harmed by a predicate act in order to assert a civil cause of action. Beyond that, there is the -- of course, the requirement of Reves that the person -- and here the corporation is participating in the affairs or conducting the affairs of an enterprise. And --
05-465 +++$+++ 41979 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but Reves demonstrates that -- that your statement earlier that since it was fraudulent action, it couldn't have been the business of the corporation is simply false. We -- we haven't held that whenever a corporation violates the law, it goes beyond its business, although in a sense it does. In Reves, we -- we said it didn't.
05-465 +++$+++ 41980 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Here, Justice Scalia, there is, as was pointed out earlier in the dialogue with Justice Souter, a very close cooperation among Mohawk and these third parties to get workers, to bring them from --
05-465 +++$+++ 41981 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I understand that, but that's -- we have to get into that is my point. We can't just say since providing them with -- with phony ID's is unlawful, it can't be the business of the corporation.
05-465 +++$+++ 41982 +++$+++ TRUE +++$+++ MR. FOSTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I agree. And I would contend that there is enough factual detail and a description of the claim asserted in this complaint to satisfy rule 8 to state a claim. And the type of factual inquiry that Mohawk has suggested, that Mr. Phillips has suggested, saying, for example, their test that Mohawk cannot be participating in the affairs of an enterprise that involves hiring because it itself involves hiring would dramatically change the interpretation of RICO. It would mean that, for example, a drug dealer could not participate in a drug enterprise because he does what the enterprise does. Since all corporations are engaged in hiring activities, therefore, then no corporation or other business entity could ever be prosecuted or sued under RICO because that -- there is overlap between what they do and what an enterprise does, the -- if the enterprise is devoted to recruiting illegal workers for a business. That just can't be what Congress had in mind, and it's not consistent with what this Court held in Turkette that a common purpose is required for there to be a RICO enterprise. In conclusion, I do not believe that the Court should address Mohawk's first point. I thought it was startling to return to that issue, that Mr. Phillips stated the reason that it was not raised below was because he knew that they would lose and the Eleventh Circuit would rule against them. But, nevertheless, he wishes it to be addressed by this Court and simply bypass the court of appeal in the Eleventh Circuit. If there's no split below, then the question would not have been accepted for cert presumably, as has been pointed out, and it should not be entertained now. For the reasons stated, I believe that the judgment of the Eleventh Circuit Court of Appeals should be affirmed. Thank you.
05-465 +++$+++ 41983 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel. And Mr. Stewart.
05-465 +++$+++ 41985 +++$+++ FALSE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: Respondents' complaint alleges that Petitioner has entered into a long-term, collaborative venture with outside recruiters in order to perpetrate hundreds, if not thousands of violations of Federal immigration law. That sort of concerted, ongoing racketeering activity alleged in the complaint is encompassed by the text of 18 U.S.C. 1962(c) and it directly implicates section 1962(c)'s core purpose. The judgment of the court of appeals should be affirmed. Now, with respect to the textual question, our argument is not that the collaborative venture alleged in this complaint falls within the terms of section 1961(4). Our argument is that it falls within the usual background understanding of the term enterprise and that it's not excluded from the statute by operation of 1961(4). To take the first point first, if Congress had not defined the term enterprise at all, but had used the term enterprise in section 1962(c), this -- the courts construing the provision would have had to determine whether the term enterprise was naturally encompassed -- was naturally construed to encompass not simply discrete legal entities but collaborations between discrete actors. And I think it's pretty clear that the term would have been construed to include such ventures. That is, the -- RICO was enacted against the backdrop of the Travel Act which prevented the use of business enterprises to perpetrate particular crimes and it was well established that a business enterprise meant not simply a corporation or similar discrete legal entity --
05-465 +++$+++ 41986 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why shouldn't includes here be read to mean means when that seems to be the way it's used in other subsections of this provision and when the only thing that seems to be -- if this is not an exhaustive list, the only thing that seems possibly to be omitted from the list is what's involved here, which is a group consisting of a corporation or other legal -- other legal entity and -- and natural persons.
05-465 +++$+++ 41987 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think there are several reasons. First, this Court's decisions make clear that while includes may be construed as exclusive, if it appears alone, when Congress employs the means/includes structures -- structure and introduces some definitions with the word means and others with the word includes, that choice of verb should be taken as advertent, and the Court shouldn't likely conclude that Congress simply used the terms as interchangeable. Second --
05-465 +++$+++ 41988 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do -- do any of those cases that you allude to that have means in some sections, includes in others -- do any of them have in third sections, includes, comma, without limitation, comma?
05-465 +++$+++ 41989 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but the -- the includes --
05-465 +++$+++ 41990 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I think that's a big difference.
05-465 +++$+++ 41991 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it would be a big difference if the phrase, including but not limited to, appeared in another provision of 1961, but that's not where the phrase appears. The phrase appears in, I believe it's, 1964(c) which deals with the -- the civil remedies provision, and where --
05-465 +++$+++ 41992 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Close enough.
05-465 +++$+++ 41993 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- where the word includes stood alone within that section, it was natural for Congress to use what we call a -- a belt and suspenders approach, making it clear that the word includes shouldn't be taken as exclusive. The second point I'd make is that the last of -- I believe it's the last provision of 1961(4) is the definition of pattern of racketeering activity. And that definition is introduced by the word requires. The term pattern of racketeering activity requires at least two racketeering acts committed not more than 10 years apart. And this Court in Sedima and then in H.J., Incorporated has attached significance to that choice of verbs and has explained that Congress' use of the word requires, rather than the verb means, implies that two are necessary but not necessarily sufficient. So when we're construing a provision in which the Court has already recognized that, at least in some instances, Congress' use of varying verbs to introduce the different subsections will be taken as significant --
05-465 +++$+++ 41994 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but if we're trying to think of what they were getting at, it's possible that Congress was worried about organized crime taking over the pizza parlor or taking over a trades union or taking over a similar kind of enterprise. So that's what they're thinking about. Now, if we're thinking about that, they put in the word groups of individuals because they understand that organized crime could take over a group of individuals. Now, once you do that, you RICO-ize vast amounts of conspiracy law.
05-465 +++$+++ 41995 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think --
05-465 +++$+++ 41996 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but they had no reason whatsoever for doing the same thing for what we have are associations of trade unions with each other or associations of -- of corporations with each other. And to do that, adding that in when it doesn't say that, would RICO-ize, with its treble damages and private plaintiffs and everything, vast amounts of ordinary commercial activity, not ordinary only in that, but importantly, a certain amount of criminal activity like passing bad checks or fraudulent behavior is involved. But Congress wouldn't have wanted to -- that has not to do with organized crime. That does not have to do with taking over legitimate enterprises. So read this, I think he's saying, to mean what it says most naturally. They're worried about groups of individuals. They're not worried about groups of corporations or groups of trade unions interacting with each other. And I'm trying to put the argument the other way, and I wanted see what you respond.
05-465 +++$+++ 41997 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, in terms of speculation about Congress's motive, I think you're very likely right that the reason Congress added a specific reference to groups of individuals was that they were thinking in terms of mob families or syndicates, criminal gangs that had no discrete status as a legal entity. They're not incorporated, but they function as unit. And they had those in mind, and they intended -- they wanted to make sure those were covered even though they were not discrete legal entities. And I think you're likely right that the reason they didn't specifically include groups of corporations is that they didn't have them in mind as likely sources of trouble at the time. But that doesn't answer the question whether they intended to exclude the coverage of those alliances if they would otherwise be encompassed by the normal meaning of the term enterprise. And if it came to cause the --
05-465 +++$+++ 41998 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're -- you're willing to go this far with them. You say take those words, groups of individuals, and throw them away. And you're saying after we throw them away, they're still covered, and the reason that they're still covered is even though the word enterprise includes any individual, partnership, corporation, the word enterprise also includes groups of legal entities, groups of trades unions, groups of associations, even without that word group of individuals.
05-465 +++$+++ 41999 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly. If -- if the term enterprise appeared in 1962(c) but were an undefined term --
05-465 +++$+++ 42000 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Now, is there any indication in the legislative history or anywhere else in the statute that this meaning of the word enterprise is what is intended, that is, that this meaning of the word enterprise went beyond what it says here, excluding group of individuals?
05-465 +++$+++ 42001 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There -- there is in the legislative history. That is, the legislative history describes the coverage of the term enterprise as encompassing any associative group. Now, we don't contend from that stray reference that Congress specifically had in mind alliances between corporations and specifically intended to include them. What we do contend is that that legislative history is inconsistent with the hypothesis that Congress anticipated the problem of alliances of corporations and carefully --
05-465 +++$+++ 42002 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Stewart, this -- this thing is at least -- at least -- ambiguous. Why shouldn't we apply the rule that we normally apply with regard to criminal statutes that where there is an ambiguity, the rule of lenity applies and we shouldn't give the -- the Government license to -- to ride closer herd than -- than is clear in the statute? Why isn't -- why isn't that an easy way to --
05-465 +++$+++ 42003 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ First, I --
05-465 +++$+++ 42004 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- resolve this question?
05-465 +++$+++ 42005 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I don't think that at the end of the day, after all the tools of statutory construction are applied, there is a genuine and certainly not a grievous ambiguity. That is, there -- there are two potential sources of ambiguity. One could simply be there's uncertainty about whether the word enterprise, taken alone, would typically be construed -- nobody is contending --
05-465 +++$+++ 42006 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's irrelevant because it's not taken alone. It is defined. So the only -- the only question is what this -- what this definition means. Is it exclusive or not exclusive? That's really the only issue.
05-465 +++$+++ 42007 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the only question is whether this list should be taken to exclude things that are not on the list even though they would otherwise be encompassed by the normal meaning of the word enterprise. And this Court in many decisions has given Congress a template. It said if you use the means/includes dichotomy, we will take that choice to be advertent and we will assume that when you use means that's intended to be exclusive; when you use includes, that's intended to be not exclusive.
05-465 +++$+++ 42008 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even -- even when it's absolutely clear and -- and as pointed out by -- by your friend, you -- you did not refute the point that in other sections where it says includes, it is unquestionable that it is exclusive.
05-465 +++$+++ 42009 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that was part of Justice Alito's question, and I think there are two different senses in which a statutory list could be considered exclusive or comprehensive. That is, one would be legal exclusivity. For instance, the definition of racketeering activity says racketeering activity means acts indictable under the following statutes. That definition is legally exclusive in the sense that if -- if Congress enacted a new statute and it prohibited conduct that was classic mob activity, but it wasn't on the list of RICO predicates, we would say that's out, it's not racketeering within the meaning of the statute even though it would be racketeering activity within a common understanding. I think with the definition of Attorney General, what we have is a different sort of comprehensiveness. That is, it may well be that the definition of Attorney General is comprehensive in the sense of actually listing all the people who could otherwise plausibly be regarded as standing in the shoes of the Attorney General. It may be that Congress, when it promulgated the list, got everything that would have been covered anyway. It's not legally comprehensive or legally exclusive in the sense of directing courts that even an official who would otherwise be regarded as an appropriate surrogate for the Attorney General is not to be so regarded if he's off -- off the list.
05-465 +++$+++ 42010 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, a State attorney -- a State attorney general wouldn't fall within subsection 10. Would -- would that be the case?
05-465 +++$+++ 42011 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I agree with that, but I don't think that in the context of a Federal statute referring to the Attorney General, a State attorney general would typically be encompassed within the meaning of that provision even if the provision were undefined, whereas I think because executive power is -- is generally deemed to be delegable, subordinate officials standing in the shoes of a cabinet officer would usually be thought to be encompassed by the reference to the cabinet officer alone. The other thing we would say, of course, on the -- the statutory point is that there have -- there has been a unanimous pattern of court of appeals decisions in this area. Congress has not acted to contract the definition of enterprise, but instead has added new predicate acts.
05-465 +++$+++ 42012 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's the best court of appeals opinion, the most thoroughly considered? I haven't read any of them. Tell me -- tell me the best one. I'd like to read it.
05-465 +++$+++ 42013 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I've looked at them and -- I would agree with Mr. Phillips that the analysis doesn't tend to be lengthy, but I think Feldman would be one. By and large, the -- the courts adopt the -- the reasoning that we've adopted here, namely that because the word includes signals an intent to be nonexhaustive or to admit of other things being covered even if they're not on the list, then they should be covered. The --
05-465 +++$+++ 42014 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are there any dissents in any of those cases?
05-465 +++$+++ 42015 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't recall any dissents at least on the point. I -- I don't want to represent that there have never been any. I don't recall any dissents at least on the -- the pure question of whether an association in fact comprised in part of artificial legal entities can ever be covered.
05-465 +++$+++ 42016 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do any of the court of appeals opinions deal specifically with the peculiarity of this definition in which, although it starts out with the word includes, then follows a -- a listing, A, B, C, and D, and then it repeats one, but only one, of the items on the list and says groups of these items, i.e., individuals, are included? That's the peculiarity of the definition. Do any of the courts of appeals come to grips with that?
05-465 +++$+++ 42017 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know of any court of appeals opinion that really focus on that -- focuses on that aspect of the question. But -- but, again, we can accept kind of the factual premises about what led Congress to draft the legislation as it did, namely that it anticipated the problem of groups of individuals banding together to commit criminal acts and didn't anticipate the problem of groups of corporations banding together for like purposes. But I think the whole point of having a template, having an established rule that means and includes, when they're used in the same statutory provision will be taken as meaning different things, as to give Congress a clue that if you've tried to list everything but you're not sure that you've got it all, here's the way that you can ensure that some new arrangement that would otherwise fall within the defined term is not going to be knocked out, and if you want it to be knocked out, use the words means. With respect to the second argument, that the -- the core of Petitioner's position is that it can't be held liable under RICO because it's simply conducting its own business, and I think that's wrong for two reasons. First, there's no rule that says a corporation can't simultaneously in a single act be conducting its own business and the business of a separate enterprise, and I think H.J., Incorporated is an example of that. The allegation in that case was that a utility corporation and its officers had engaged in a systematic pattern of bribing the members of a public utility commission to allow the corporation to charge higher rates. And the suit was allowed to go forward on the theory that through the pattern of bribery, the utility was, in practical terms, participating in the conduct of the public utility commission's affairs. Now, clearly in attempting to bribe the utility commission members, the utility was, in a sense, conducting its own business. That is, viewed at a high level of generality, efforts to persuade rate-setting bodies to allow a utility to charge higher rates are an integral part of the utility's own business. That didn't prevent it from simultaneously being a means of participating in the conduct of a different entity's business. And second, there's more alleged in this complaint, and I think some of the questions brought this out. May I finish my sentence? There's more alleged in the complaint than simply the unlawful hiring of illegal aliens. There are hiring inducement and transporting offenses that would constitute separate violations that are antecedent to but not part of Mohawk's business.
05-465 +++$+++ 42018 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Phillips, you have 4 minutes remaining.
05-465 +++$+++ 42020 +++$+++ FALSE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. Justice Ginsburg, let me -- let me try to justify having this issue before the Court. First of all, 1292(b) has never been as narrowly confined as you suggest, and indeed, in this case, you know, what you're entitled to do is to bring up any issues related to the challenged order. And in this case we not only raised the RICO issue, but we also raise State law issues in the -- in the Eleventh Circuit which were not within the specific grant and were entertained by the Eleventh Circuit because that's the standard. And then once you get past that, Justice Kennedy is absolutely right. The issue is whether there's an order to be reviewed. There is no final judgment rule on claims coming out of the Federal courts of appeals, and therefore, it's -- it's absolutely fair game. And the issue is I -- I submit, fairly subsumed within the question presented. Justice Souter, you know, with respect to the ID cards, I think it's very important to recognize that for us to do our business, we have to have an ID card in order to fill out the forms necessary to satisfy the immigration laws. So that -- you know, those ID cards add nothing to the -- to the conduct of our business. And, you know, Mr. Stewart just suggested that, well, but you know, we do go beyond that and that H.J. allows some a -- a different analysis of this particular point. But H.J. preceded Reves. This Court held in Reves that you have to distinguish between the activities of the enterprise and the activities of the defendant and -- and they've never made any effort to do that. All they do is suggest we've engaged in wrongdoing, that our third party recruiters engaged in wrongdoing, and that we're a conspiracy. There's nothing in there that remotely suggests that there is an existing enterprise. With respect to the question of how to interpret this particular statute, Justice Scalia is absolutely correct that at the end of the day, this is at most an ambiguous provision, and if it's an ambiguous provision, we ought to be entitled to the rule of lenity. I didn't hear any adequate answer to Justice Kennedy's specific question about why do they use person in the subsection just ahead of it, if they really meant to embrace everything here. And it's no answer to say, well, enterprise is a term that could be -- that has a general background. Enterprise is the linchpin of this statute. The notion that Congress didn't mean to very specifically and explicitly define enterprise here is absurd. Of course, it defined it, and it provided a very specific and detailed definition. And it's not free for the Government or for anyone else then to come here and shunt aside that definition and say, well, we're just going to deal with background principles. The truth is they're trying to write out of it groups of individuals acting in association. That language is there. It was put there for a reason. The Government concedes that it didn't -- that it never -- that Congress never had this issue in mind. How it can be then that this is not at least sufficiently ambiguous that you should construe it in our favor strikes me as -- as very difficult to understand. And finally, I don't -- I've never heard the expression RICO-ize before, Justice Breyer, but I -- I embrace it wholeheartedly because that is precisely what we're talking about here. These are enormous penalties that are imposed, and it's a statute that this Court has recognized in the past, even on its own terms, is very broad. Certainly there is no reason to take those terms and RICO-ize the -- the breadth of corporate activity that the plaintiffs' complaint in this case would -- would allow. The Court should reverse the decision below and dismiss this complaint, just as the Seventh Circuit did. If there are no further questions, thank you, Your Honors.
05-465 +++$+++ 42021 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Phillips. The case is submitted.
05-493 +++$+++ 42025 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Ayers versus Belmontes. Mr. Johnson.
05-493 +++$+++ 42027 +++$+++ FALSE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: This case concerns the constitutional sufficiency of California's catchall factor (k) instruction, which was given in the penalty-phase portion of California capital cases, and which directed the jurors to consider any other circumstance that extenuates the gravity of the crime, even though it is not a legal excuse for the crime. In this case, the Ninth Circuit Court of Appeals held that this instruction violates the Eighth Amendment because it allegedly misled the jurors to believe they could not consider so-called forward-looking evidence that did not relate directly to the defendant's actual culpability for the crime itself. In the State's view, the Ninth Circuit's conclusion is fundamentally flawed, because it rests on an illusory distinction between different forms of character evidence in a way that is inconsistent with this Court's prior decisions in California -- or Boyde versus California and Brown versus Payton. In Boyde, this Court addressed, and rejected, a virtually identical challenge to the factor (k), and concluded that this instruction did, in fact, allow jurors to consider non-crime-related evidence; specifically, it allowed the jurors to consider evidence of the defendant's background and character. There was nothing in the Boyde decision to support the Ninth Circuit's distinction between different forms of character evidence. In fact, Boyde implicitly acknowledged that the factor (k) would, in fact, be understood to encompass Belmontes' good character evidence, in this case, because, for all practical purposes, there is no meaningful distinction between the nature of the background and character offered in Boyde and the nature of the background --
05-493 +++$+++ 42028 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Johnson, would you comment on the footnote on the -- on the -- drawing the distinction with regard to the dance contest that the defendant won in that case, between -- it's over here; I'm asking the question -- between facts that occurred before the crime and facts that might have occurred after.
05-493 +++$+++ 42029 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. In footnote 5, this Court addressed a contention, raised for the first time in argument, that Boyde's evidence might be admissible under Skipper versus South Carolina, and this Court distinguished Boyde from Skipper, for a couple of reasons. First, as the -- as Your Honor pointed out, the evidence in this case related to good-character evidence, events that occurred before the crime itself, unlike in Skipper, which dealt with post-crime events. The Court also pointed out that the evidence in Boyde -- his dancing achievement, his good character evidence in that case -- was not offered for the specific inference that the evidence in Skipper was offered. The Court, in footnote 5 -- and in the opinion, in general, in Boyde -- nonetheless found that this evidence did, in fact, constitute good-character evidence of the -- of the defendant's present good character, because it showed that his crime was an aberration from otherwise good character. Or, as Justice Marshall put it in his dissenting opinion, that Boyde had redeeming qualities, which is a decidedly forward-looking consideration. And, as I was saying, the evidence in this case, and in Boyde --
05-493 +++$+++ 42030 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It doesn't have to be forward-looking, does it? I mean, I thought we've said "so long as it can be taken into account in any manner," whether backward-looking or forward-looking. Haven't we said that, explicitly?
05-493 +++$+++ 42031 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes Your Honor. The -- and, in fact, the Court has, in Franklin versus Linite, said that they have not distinguished between different forms of character evidence. And I understand that, in the past, we've always discussed background and character evidence as sort of the same thing. In this case, however, the Ninth Circuit's conclusion does, in fact, rest on a distinction between different forms of backward-looking and forward-looking character --
05-493 +++$+++ 42032 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well it was --
05-493 +++$+++ 42033 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- evidence.
05-493 +++$+++ 42034 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- it was addressing itself to the fact -- to the words of the factor (k) instruction. How does post-crime prison conduct reduce the seriousness of a previous crime?
05-493 +++$+++ 42035 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does not -- it does not relate to the seriousness of the -- of the crime at all. The -- Boyde's dancing --
05-493 +++$+++ 42036 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I mean, it has to relate to the gravity of the crime, under the words of factor (k), doesn't it?
05-493 +++$+++ 42037 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would relate to the gravity -- to circumstances that extenuate the gravity of the crime, for purposes of a jury's sentencing determination. And the point I'd like to make on that point is this, Your Honor. In California, jurors are well aware what their task is at a sentencing determination. In California, the guilt and the death eligibility determinations are made during the guilt-phase trial and the jurors are expressly told, during the penalty-phase trial, that their lone determination, their one concern, is to decide between a sentence of death or a sentence of life without the possibility of parole. And, in that light, the jurors are very well aware that their only determination in a California case is to make a moral, normative determination, a single normal -- moral normative determination, as to whether this man, this defendant standing before them in this Court today, deserves death or life without possibility --
05-493 +++$+++ 42038 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, now, do you --
05-493 +++$+++ 42039 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of parole.
05-493 +++$+++ 42040 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- do you have an instruction that supports what you've just told us, that the jury is told they have to make a single moral determination? Is that what the court instructed the jury? Or was --
05-493 +++$+++ 42041 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, that's --
05-493 +++$+++ 42042 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- instructed in items of factor (k)?
05-493 +++$+++ 42043 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
05-493 +++$+++ 42044 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I think you have to rest on your argument, that what we are talking about is the gravity of his crime "for purposes of sentencing." I understand that argument. But then, when you go on to make the argument you just made, the jury understands it is a single moral judgment, what -- is there some specific instruction you can point to, other than the factor (k) instruction itself?
05-493 +++$+++ 42045 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, they are -- and I may have been misleading. The jurors are expressly instructed that is -- that it is their duty to determine, and their only duty to determine, whether the defendant should receive life or death and parole, and -- or life without the possibility of parole -- and in --
05-493 +++$+++ 42046 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well --
05-493 +++$+++ 42047 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- light of that determination, jurors, naturally, would understand that they could take into account anything that extenuated the gravity of the crime.
05-493 +++$+++ 42048 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's what they were told, right? They're instructed that the mitigating circumstances, including factor (k), are merely examples, right?
05-493 +++$+++ 42049 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. In this -- yes. In --
05-493 +++$+++ 42050 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask you about that? This case is unusual, because it has that separate instruction that, "The mitigating circumstances are merely examples, and you should pay careful attention to those, but you may -- but you may rely on other mitigating circumstances." May I ask you, would it have been constitutional if the judge had added a sentence at the end of that instruction which said, "However, you may not consider anything mitigating unless it extenuates the gravity of the crime"?
05-493 +++$+++ 42051 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would have been constitutional, to the extent that it would have allowed the jurors to give some use whatsoever to Belmontes' proffered evidence in mitigation, and that's what this Court's prior cases has -- and, particularly, the various Texas cases have said that jurors must be given an avenue to make use of the evidence. In California --
05-493 +++$+++ 42052 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm not sure you've answered my question. Would it have been a constitutional addition to that instruction to say, "But I want to -- you to clearly understand that it is not to be considered mitigating unless it extenuates the gravity of the crime"? Would that have been permissible?
05-493 +++$+++ 42053 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would appear to -- no. It would appear not to be, because --
05-493 +++$+++ 42054 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Because that would have foreclosed consideration of the Skipper-type evidence, right?
05-493 +++$+++ 42055 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would have -- well, it would foreclose consideration of all present good-character evidence, I believe. It would -- it would have foreclosed the consideration of Boyde's evidence, of Payton's evidence.
05-493 +++$+++ 42056 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, then the question in this case is whether the jury might have understood factor (k) to limit them to the consideration of factors that extenuate the gravity of the crime.
05-493 +++$+++ 42057 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- yes, the question is whether the jurors would reasonably understand the instruction to preclude the consideration of constitutionally -- of relevant evidence.
05-493 +++$+++ 42058 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This Court, in Payton, said that it was not unreasonable to conclude that evidence of remorse extenuated the gravity of the crime. So, why wouldn't an instruction to the jury along the lines of Justice Stevens's hypothetical have been perfectly constitutional as extenuate the gravity of the crime that's interpreted in Brown versus Payton?
05-493 +++$+++ 42059 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, to the -- to the extent -- the jurors would have likely understood that, it -- that instruction in Belmontes and in Payton, to extenuate the gravity of the crime for purposes of their sentencing determination --
05-493 +++$+++ 42060 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's what I thought your position was. And --
05-493 +++$+++ 42061 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes --
05-493 +++$+++ 42062 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- then you back off of it, and you say, "extenuate the gravity" of the crime doesn't relate to anything that's after the crime. I would have -- I would have interpreted the phrase to mean "anything that justifies you in giving a lesser punishment for the crime."
05-493 +++$+++ 42063 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's precisely my argument.
05-493 +++$+++ 42064 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, then your answer to Justice Stevens should have been different.
05-493 +++$+++ 42065 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if -- and I apologize if I was misunderstood. My --
05-493 +++$+++ 42066 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think --
05-493 +++$+++ 42067 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- question --
05-493 +++$+++ 42068 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that the jury in this very case understood that, given the questions that were asked?
05-493 +++$+++ 42069 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, yes, Your Honor. In this -- in this case, I -- there is certainly no reasonable likelihood that the jurors felt precluded, because, as was previously discussed, first there was this additional instruction that supplemented the other instructions in this case that made it very clear that the aggravating factors, the various factors listed in the standard instruction A through G, that those were the -- they could only rely on those two for aggravating factors, but their understanding of mitigating factors was not limited. In fact, they were expressly told that the previous factors were merely examples.
05-493 +++$+++ 42070 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about the -- what actually went on? I mean, the jury first came in and said, "What if we can't decide? Can we decide by majority?" And then the question was asked, that seemed to indicate the jurors' understanding, that we take all those factors that you told us about, and we just take those factors into account. And there were clarifying instructions asked by the defense that were not given.
05-493 +++$+++ 42071 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there -- to answer your questions, Your Honor, first, there was no indication at this conference that the jurors were, in fact, confused about whether they could consider any particular evidence as being mitigating. The conference itself was called to address, as you mentioned, the jurors' concern -- or the jurors' inquiry about the result -- what would happen if they couldn't reach a unanimous verdict in this case.
05-493 +++$+++ 42072 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that may be why they had the conference, but they got into the colloquy that Justice Ginsburg described. And the last -- as I recall, the last reference to "factors," whether aggravating or mitigating, was simply in terms of the list, or "the listing," I guess the term was, so that the -- it seems to me at least, there's a fair argument on the other side of this case, that the last reference that the -- that the judge made to the jurors with respect to aggravation or mitigation was to refer to a listing. The listing itself didn't have anything to do, as I understand it, with the instruction that you are not limited to the listed mitigating factors. So, the concern is that, because the last reference was to the list, that the list included factor (k), without embellishment, and that jurors tend to give -- we have held that the jurors tend to give the greatest emphasis to clarifying instructions or later instructions in response to questions. Isn't it a pretty good argument that, in this case, there is -- there's a reasonable likelihood that the jurors went back to their task thinking that they were limited to the list?
05-493 +++$+++ 42073 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Respectfully, no, Your Honor. And the reason why is --
05-493 +++$+++ 42074 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I -- I'm not necessarily saying that's my position, so you don't have to be respectful to me about it. Just --
05-493 +++$+++ 42075 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'll be respectful anyhow, Your Honor.
05-493 +++$+++ 42076 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- knock it down if you can.
05-493 +++$+++ 42077 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Be respectful anyway.
05-493 +++$+++ 42078 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The point is, with this instruction conference, there -- the -- an argument that this reference to "the listing" reflected some unconstitutional -- or constitutionally restrictive view presupposes that the jurors reasonably would have misinterpreted the meaning of the factor (k); and there is nothing in there -- in any of these questions to put anybody on notice that that -- that they had any such concerns. And first --
05-493 +++$+++ 42079 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, except for the language of factor (k) itself. And if -- without some embellishment, isn't it a bit of a stretch to think that factor (k) goes as far as Skipper evidence?
05-493 +++$+++ 42080 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, it's not a stretch at all, because any evidence relating to the defendant's background and character, his present character in court, could be seen as extenuating the gravity of the crime for sentencing purposes.
05-493 +++$+++ 42081 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well --
05-493 +++$+++ 42082 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the jurors --
05-493 +++$+++ 42083 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- California itself recognized that there was a problem here of jury confusion. And now they have amended the provision so that it would be clear to any juror.
05-493 +++$+++ 42084 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor, in People v. Easley the California --
05-493 +++$+++ 42085 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or maybe they thought that was a problem of Ninth Circuit confusion rather than jury confusion. [Laughter.]
05-493 +++$+++ 42086 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, having that opinion in front of them, you would think they would amend it, of course, to prevent that kind of decision again.
05-493 +++$+++ 42087 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they -- what they were doing was certainly a prophylactic measure here, to -- they recognized that perhaps there might be some concern of confusion, and so they wanted to forestall any chance of that happening. But notably, this case and -- this case, and no other California Supreme Court case, has found that the factor (k) instruction, the pre-Easley version of it, by itself, did mislead the jurors. In fact, the Supreme Court, in this case, came down 7-0 in support of the conclusion that the jurors were properly told about the --
05-493 +++$+++ 42088 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where does this factor (k) come from? What was the source of it?
05-493 +++$+++ 42089 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The factor (k), as the entire standard instruction given in these cases, recites verbatim the language of the California statute, which is California penal code section 190.3. And, interestingly enough, the -- not only the California Supreme Court, but this Court, implicitly has -- have both said that not only the California statute, but the instruction -- this standard instruction, upon -- which is based on the statute, do allow consideration of all relevant mitigating factors. In fact, as far back as 1983, in this Court's California v. Ramos decision, this Court stated, albeit in dicta, that the factor (k) -- or that the standard instruction would allow consideration of background and character evidence; and, in fact, the Court stated, in footnote 20 --
05-493 +++$+++ 42090 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ General Johnson, I don't mean to interrupt you, but I want to be sure you answered your -- you stick to your answer on -- to my question, earlier, --
05-493 +++$+++ 42091 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
05-493 +++$+++ 42092 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- because you -- I think you changed your answer after Justice -- the Chief Justice and Justice Scalia suggested you might have made a mistake. Are you -- is it your position that it would be constitutional to instruct the jury that, "You may not consider any evidence mitigating, unless it extenuates the gravity of the crime"?
05-493 +++$+++ 42093 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, because the jurors would -- even if that instruction were given, the jurors would understand that an instruction that extenuates the gravity of the crime would encompass any relevant character evidence. And this Court has made these determinations all the time.
05-493 +++$+++ 42094 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is --
05-493 +++$+++ 42095 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That --
05-493 +++$+++ 42096 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that answer consistent with the position of defense counsel, who said he would not insult the intelligence of the jury by suggesting to them that the religious conversion of the defendant did not extenuate the gravity of the crime?
05-493 +++$+++ 42097 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. What the -- what the counsel actually said was that the defendant's religious conversion did not provide an excuse for the crime itself. And, in fact, that argument was, itself, echoing the language of the factor (k) instruction, which of course --
05-493 +++$+++ 42098 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's right.
05-493 +++$+++ 42099 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- directs the jurors to consider any other circumstance that extenuates the gravity of the crime, even though it's not a legal excuse for the crime. And so, counsel was dovetailing his very effective argument with the -- with the instruction itself. And what's significant here is that, like in Payton, like in Boyde, this case involved virtually all of Belmontes' penalty-phase evidence. And the entire main thrust of his argument to the jury was that he could not make it on the outside, but he could fit in the system and contribute to society in the future, if given a chance on the inside. And again, as was true in Boyde and Payton --
05-493 +++$+++ 42100 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If that were true would that have extenuated the gravity of the crime, if he could get along in prison?
05-493 +++$+++ 42101 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, for purposes of jurors -- at jury's sentencing determination, absolutely, because it would be viewed as good-character evidence, precisely --
05-493 +++$+++ 42102 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you think juries would clearly understand that what he did in the future in prison would extenuate the gravity of the crime.
05-493 +++$+++ 42103 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, because, in light of everything that's been said and done in this trial, as the Boyde Court noted, jurors do not parse instructions for subtle shades of meaning; they understand instructions in a commonsense manner, and in --
05-493 +++$+++ 42104 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The prosecutor didn't object to any of this mitigating -- mitigation evidence that was submitted by the defendant, did he?
05-493 +++$+++ 42105 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The prosecutor objected to none of this evidence. And, in fact, the prosecutor, in closing statement, argued that the -- not only could the jurors consider Belmontes' forward-looking prospects, but the jurors should consider those prospects. So, in this case what we have --
05-493 +++$+++ 42106 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the prosecutor's closing was schizophrenic, because he said, "But really this shouldn't matter."
05-493 +++$+++ 42107 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He acknowledged it was something that -- this argument was something that was proper for consideration, but -- however, he argued that the evidence of Belmontes' religious conversion, which happens -- you know, and then lapsed immediately before he committed the murder, in this case -- was very weak evidence. But he did, nonetheless, tell the jurors that they could consider Belmontes' prior character as bearing on his present character now.
05-493 +++$+++ 42108 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, didn't he go beyond saying it was weak? He did say that, but didn't he say that he doubted that it fit within (k)?
05-493 +++$+++ 42109 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
05-493 +++$+++ 42110 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He's -- yes, the prosecutor first stated that the factor (k) was a catchall, a true catchall.
05-493 +++$+++ 42111 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, the prosecutor, I take it, would have answered Justice Stevens's question the other way. The prosecutor would have said, "Well, no, this probably would not be understood by the jurors to refer to the gravity of the offense."
05-493 +++$+++ 42112 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, because in the -- in the previous page, the prosecutor did State that it was a catchall, you know, which, by implication, incorporates everything, but -- and the prosecutor's argument, that, "I'm not sure if it fits in there," signifies that there -- not that the evidence -- that such evidence could not be considered as mitigating as a -- in a general matter, but that -- just that the religious evidence in this case was extremely weak, to the point of having, as a practical purpose, no mitigating value. The prosecutor followed that comment. I'm not sure it fits in there, in next breath, with, "It's" -- something to the effect of, "It's no secret that Belmontes' religious evidence is pretty shaky here," and went on to conclude that. But then, in the next breath, he said, "But, nonetheless, this is something that's proper for you to consider." And, again, reasonable jurors, hearing this -- having been given the instruction here -- would reasonably interpret this -- all of this evidence as something they could use to extenuate the gravity of the crime. And particularly in this context, because, like in Boyde, in addition to this factor (k), the standard instruction directed the jurors to consider all the evidence. The first factor of the enumerated factors -- (a) through (g), in this case -- told the jurors that they should -- that they should focus on -- that the first thing to consider was the -- or the circumstances of the crime itself. The final factor, therefore, that any other circumstance that extenuates the gravity of the crime would clearly be understood to relate to matters outside the crime itself. And, to the extent that there was any ambiguity about the meaning of that in this particular case, the argument by counsel, the additional instruction here, clarified that to the point that there is certainly no reasonable likelihood that the jurors felt that they were constrained in considering any mitigating evidence in any way they thought fit.
05-493 +++$+++ 42113 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Johnson, when I asked you about the derivation of factor (k), you gave me a California statutory cite, but is there -- does it come from any model code? Does any other State have such a provision? How widespread is it?
05-493 +++$+++ 42114 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of the -- the actual wording of this instruction?
05-493 +++$+++ 42115 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How many States have an instruction that talks about extenuating the circumstances of the crime?
05-493 +++$+++ 42116 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure, Your Honor. I'm not sure. I know that this -- that this instruction itself came from the statute, which, in turn, was adopted from the California Briggs initiative in the 1978 statute. I'm not aware of any -- of any other States -- there may or may not be -- who have adopted the same statutory model that California has.
05-493 +++$+++ 42117 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which -- California hasn't had it since 1983, right?
05-493 +++$+++ 42118 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Pardon me, Your Honor?
05-493 +++$+++ 42119 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ California hasn't used this instruction since 1983.
05-493 +++$+++ 42120 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. After People v. Easely, the California Supreme Court augmented the instruction.
05-493 +++$+++ 42121 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, is this a one-of-a-kind case? I mean, you said, in your brief, that the Ninth Circuit decision threatens many other valid California death judgments. But these would all have to be rather ancient cases.
05-493 +++$+++ 42122 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. And, unfortunately, there's -- there are several of them that are still being litigated. I've done research on this issue, and, as of this date, I can't give you an actual -- an absolute number, but I believe there is approximately 15 cases pending, like this one, that involve the factor (k) instruction -- this factor (k) instruction -- that involve evidence of -- somehow, future-looking evidence, which -- all character evidence, frankly, is future-looking --
05-493 +++$+++ 42123 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And --
05-493 +++$+++ 42124 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- whereas --
05-493 +++$+++ 42125 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that wouldn't wash out, on the other grounds?
05-493 +++$+++ 42126 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, that -- and -- that are still pending, and that are -- unlike Payton, are not governed by the AEDPA.
05-493 +++$+++ 42127 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you're saying those convictions are more than -- more than 23 years old?
05-493 +++$+++ 42128 +++$+++ TRUE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. Unfortunately, there's -- they're -- I believe all of them are being litigated now in the Federal court system in California. If you have no further questions, I guess I'll reserve the rest of my time.
05-493 +++$+++ 42129 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. Mr. Multhaup.
05-493 +++$+++ 42131 +++$+++ FALSE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Here is Respondent's 60-second nutshell summary of our core position. This case does not turn on the constitutional factor (k) standing alone. Rather, it turns on a straightforward application of the Boyde test, to the unusual, unique circumstances that occurred during the arguments, instructions to deliberations at the penalty trial of this case. Here are the two key components of our claim. During arguments to the jury, both counsel conveyed to the jury that Belmontes' evidence of Youth Authority religious experience was not covered by factor (k). However, both counsel suggested to the jury that it should be considered anyway. Now, this is unusual, because, of all -- of all the things that the district attorney and the defense counsel disagreed on, this was one that they did agree on, and it's likely that the jury would have taken note of that. The case then proceeded to instructions and deliberations. The jury came back to court, announced that they were deeply divided, perhaps with a majority favoring life. The turning point occurred when one juror, Juror Hern, requested judicial confirmation that the specific list of factors previously given was the only base -- was the only framework within which the penalty decision could be made. At that point, the trial court had a constitutional obligation to disabuse Juror Hern and the rest of the assembled jurors of that misapprehension and, at the very least, to reinstruct the jurors that the enumerated factors were merely illustrative and not exhaustive, and instruct the jurors that the jury had to consider all of the mitigating evidence. The trial court did neither, with the result that the jury all too likely returned to its deliberations with the belief that the only factors -- the only matters they considered -- could consider were those encompassed within the enumerated factors, and believing -- based on counsel's prior arguments -- that factor (k) did not include the Youth Authority religious-experience evidence.
05-493 +++$+++ 42132 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When did the defense counsel say that this evidence did not fit within factor (k)?
05-493 +++$+++ 42133 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, it occurred in argument. And my counsel -- esteemed co-counsel will give me the exact page -- but it occurred in the context -- the context -- during the prosecutor's argument, the prosecutor said to the jury that, "I suspect" -- and then he, for emphasis, said, "I can't imagine that you won't be told that the religious-conversion evidence doesn't fit within factor (k)." And, at that point, he expressed reservations, doubts, as to whether it did fit in factor (k) or --
05-493 +++$+++ 42134 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why does that --
05-493 +++$+++ 42135 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- any other factor.
05-493 +++$+++ 42136 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why does that matter? Because the jury was told that the factors were merely examples of the mitigating evidence they could consider.
05-493 +++$+++ 42137 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm more than --
05-493 +++$+++ 42138 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It probably didn't fit into factor (h), either, but it doesn't matter.
05-493 +++$+++ 42139 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it has -- if it -- oh, Your Honor, the -- calling your -- or you've called my attention to the instruction that said that the set -- in the prior set of -- or in the general set of instructions, that the enumerated factors were merely illustrative. Now, that instruction had a cloud of confusion surrounding it, because the way it was phrased was, the Court said, "The mitigating factors that I have expressed to you are illustrative." There was no list of mitigating factors. There was only a single list, unitary list, of factors that could be either aggravating or mitigating, depending on a jury's decision. The instruction that you're referring to, Your Honor, was a -- was the result of the trial court denying some, and granting some, parts of the special instructions requested by the defense. And so, when the trial court said to the jury, "The list of mitigating factors is illustrative only," I -- we, who know the background of this, understand what -- the point he was trying to make, but the jury, hearing it, they would think, very reasonably, "There's no list of mitigating factors."
05-493 +++$+++ 42140 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You said this case is different because both counsel told the jury that the evidence that you're relying on did not fit within factor (k). And I'm not sure what you're referring to.
05-493 +++$+++ 42141 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
05-493 +++$+++ 42142 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, as to defense counsel, are you referring to what you quoted on page 9 of your brief, where he says, "I'm not going to insult you" -- what you highlighted on page 9 -- "I'm not going to insult you by telling you I think it excuses, in any way, what happened here"? That's what you -- is that what you're referring to?
05-493 +++$+++ 42143 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's one of the passages that I am referring to, and it came as a direct response to the District Attorney, in effect, calling out the defense attorney, "I can't imagine that you won't be told that this fits within factor (k)." So, at that point, the defense counsel had to make a decision, "Okay, either I have to argue that my Skipper evidence is -- my square peg of Skipper evidence has to fit in the round hole of" --
05-493 +++$+++ 42144 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't he --
05-493 +++$+++ 42145 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- "factor (k)" --
05-493 +++$+++ 42146 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- saying something very different there? He isn't -- he's not saying, "This doesn't fit within factor (k)." And he makes no reference to factor (k). He says nothing about "extenuating." He says "excuses." Isn't that something very different, "excusing" the crime?
05-493 +++$+++ 42147 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, this Court has used the terms "extenuate" and "excuse" as synonyms in Boyde and --
05-493 +++$+++ 42148 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you had been --
05-493 +++$+++ 42149 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in Payton with --
05-493 +++$+++ 42150 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- if you were arguing this to the jury, would you have said, "You know, my client earned a position of responsibility on the fire crew that patrolled the Sierra Foothills, and, therefore, that excuses the crime that you've found that he committed here"?
05-493 +++$+++ 42151 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. No. The --
05-493 +++$+++ 42152 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't see, anywhere in Mr. Schick's statement, at least from 165 to 170, where he says what you said he said. Now, maybe he says it some other place, but -- I'd like the reference to it -- but I -- what I have him as saying is that -- he says, for example, several times, "The presence -- I don't suggest that the -- that the presence of religion, in itself, is totally mitigating." Well, it certainly wasn't, in this instance. I gather I'm right. Am I right in thinking that all this religious conversion took place before he murdered the girl? So, this is not a case of your trying to get some evidence that took place after the crime.
05-493 +++$+++ 42153 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. And --
05-493 +++$+++ 42154 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. If --
05-493 +++$+++ 42155 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- then --
05-493 +++$+++ 42156 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- that's right, then maybe it does more easily fit within factor (k). The prosecutor told the jury they should consider it, or they could. The judge told the jury they could consider it -- it sounded as -- says, "You take it -- this is an example" -- he says, "It's an example in factor (k)." Maybe he's wrong, but they certainly likely think they can consider it. And Mr. Schick doesn't say it's not in factor (k). At least, I don't see it. That's why I'm asking.
05-493 +++$+++ 42157 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the whole point of factor (k) is that -- evidence that's an excuse for the crime. And if we're --
05-493 +++$+++ 42158 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, no, I know the point of factor (k). I'm trying to be absolutely certain, before thinking --
05-493 +++$+++ 42159 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
05-493 +++$+++ 42160 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- he didn't say it, that I've made every effort to get from you the place where -- that this -- where the defense counsel says, "Jury, I agree, you cannot put this into factor (k)."
05-493 +++$+++ 42161 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. And, Your Honor, looking at it in context, given the district attorney's argument, the district attorney says, "I can't imagine you won't be told that it doesn't -- that it -- that it doesn't fit within factor (k)." So, the defense attorney gets up and says, "I'm -- I am going to tell you that it doesn't within -- fit within factor (k). It doesn't" --
05-493 +++$+++ 42162 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that page --
05-493 +++$+++ 42163 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- "constitute" --
05-493 +++$+++ 42164 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- where he says that is where?
05-493 +++$+++ 42165 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ When he -- when he says, Your Honor, "It doesn't constitute an excuse in any way."
05-493 +++$+++ 42166 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Were his words "it doesn't constitute an excuse"?
05-493 +++$+++ 42167 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ "It doesn't excuse, in any way," Your Honor. And we -- as a matter --
05-493 +++$+++ 42168 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in --
05-493 +++$+++ 42169 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of semantics --
05-493 +++$+++ 42170 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- but, in a sense, that's right, just like remorse. Remorse doesn't excuse the crime. It's a consideration that you take into account in assessing the gravity of the crime for purposes of punishment.
05-493 +++$+++ 42171 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. Your Honor, this is a point of, perhaps, semantics. But the -- by the time you get to penalty phase, there's nothing to excuse the crime, in the sense of self-defense or "not guilty by reason of insanity." The only thing --
05-493 +++$+++ 42172 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- "in any way."
05-493 +++$+++ 42173 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does say "in any way."
05-493 +++$+++ 42174 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Where?
05-493 +++$+++ 42175 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's on page 9 of your -- of your brief. The --
05-493 +++$+++ 42176 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
05-493 +++$+++ 42177 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you.
05-493 +++$+++ 42178 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- italicized portion.
05-493 +++$+++ 42179 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's on 166 of the joint appendix.
05-493 +++$+++ 42180 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you. And if the -- if trial counsel was trying to make the point that, "Well, it doesn't constitute a legal excuse, but it does constitute a partial excuse or some kind of mitigating evidence under this factor," he would have put that in there. The clear import, from the context here, is that defense counsel was not trying to sell the jury a position that was, on its face, untenable, but, rather, to acknowledge that it did not fit within the "excuse the gravity of the crime" factor, which --
05-493 +++$+++ 42181 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Only if you think that excusing the crime and extenuating its gravity are one and the same thing, which I don't really think.
05-493 +++$+++ 42182 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, there's two -- I'd like to make two responses to that. First of all, this Court has used those terms interchangeably, in Boyde and Payton, with respect to mitigating evidence. Second of all, let's -- as a -- as a practical matter, we have a defense attorney arguing a case to a jury in a Central Valley California county. And if the defense attorney has a choice between two synonyms, one which is used in common parlance, "excuse," and one which is not used in common parlance, "extenuate," it hardly constitutes an -- a defect or concession on his part if he were to say, "This does not excuse the crime in any way." That's plain speaking to a jury, that -- and what he -- what he -- counsel --
05-493 +++$+++ 42183 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But wouldn't a jury think all this evidence must have some purpose? The only purpose it could have is to -- is to propel us toward life rather than death. I mean, the bulk of the evidence at the sentencing phase -- wasn't it? -- was how he behaved when he was a prisoner before.
05-493 +++$+++ 42184 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, not -- that's not exactly what happened at penalty phase here. This is not a case like Boyde, where all the evidence was background and character evidence, and it's not a case like Payton, where the only evidence was a post-crime conversion. This case involved a mixture of evidence, where first there was the grandfather who testified to what a bad upbringing he had, traditional background and character evidence. The mother testified to her undying love for her son, traditional evidence. Friends testified to his good characteristics. And then, at the end, there was a clear segment that related to his good performance in Youth Authority and his religious conversion. So, it was only a -- it was a partial part of -- partial part of the penalty-phase presentation, but it certainly wasn't the entire presentation, as it was in Boyde and --
05-493 +++$+++ 42185 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Even so, there was --
05-493 +++$+++ 42186 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Payton.
05-493 +++$+++ 42187 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- there was extensive testimony about his prospects for doing good in a prison setting.
05-493 +++$+++ 42188 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, certainly, Your Honor.
05-493 +++$+++ 42189 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And the jury must have thought there's some reason why the judge allowed that evidence in. And what reason could it be, other than to show that, if he is given life, he will be a good prisoner?
05-493 +++$+++ 42190 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that's a very logical, sensible thing for the jury to have thought. And now I'd like to drop the second shoe of the key components of our claim. The first shoe was the arguments of counsel that we've discussed the various permutations on. The most likely -- so, the jury began deliberating based on the instructions and the arguments that they had -- that they had had. And it's entirely likely that when the jury was favoring a life verdict during the first part of their deliberations, Belmontes' prospects for good behavior in prison and contributions were part of the debate. When Juror Hern asked for judicial clarification -- not clarification, confirmation -- of a very specific view that only the enumerated factors could be considered in the penalty-phase deliberations, the jury -- and the trial court assented without qualification to that -- at that point, the jury would have very likely thought, "The trial court who holds a position of great deference to us, much more than most other authority figures we have in our life, just told us what the marching orders are here. This is the framework for decision." Now, what happened during the -- during the trial is the defense -- and I'm suggesting what the jury might have thought, in relation to your question -- that, "The defense attorney was taking his best shot for his client, pushing the envelope, maybe went over the top a little bit. But defense attorneys do that. The prosecutor was being a very decent stand-up kind of person, and -- but, right now, when we get down to the business of making the decision, we have to follow the rules. And the rules are what the -- are what the -- are what Judge Gisson just confirmed to us, that we are limited to the enumerated factors, and factor (k) does not include the Skipper evidence, because that was explained to us by counsel." I would like to --
05-493 +++$+++ 42191 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Before you move on, Counsel --
05-493 +++$+++ 42192 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, of course you --
05-493 +++$+++ 42193 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- don't you --
05-493 +++$+++ 42194 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- don't you -- excuse me. Excuse me.
05-493 +++$+++ 42195 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- don't you have to address the Teague question a little bit? You -- you're entitled to this new rule adopted by the Court of Appeals only if it was dictated by precedent at the time the judgment became final. Isn't that kind of a hard argument to make in light of our subsequent decision in Brown v. Payton?
05-493 +++$+++ 42196 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I don't see -- as to the first part of Your Honor's question, I don't believe that there is any new rule whatsoever in the Ninth Circuit opinion. It's a straightforward application of Boyde to the totality of circumstances that occurred.
05-493 +++$+++ 42197 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of Boyde? It's straightforward application of Boyde?
05-493 +++$+++ 42198 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. The Ninth Circuit began with Boyde, and it went through all of the proceedings at trial, and concluded that there was a reasonable likelihood that the jury didn't consider Skipper evidence. And that's what we're asking this Court to do, the exact same -- applying the Boyde test to the rule -- the rule of decision that was clearly established by this Court as of 1986, and reiterated and expanded by this Court in 1987, with Skipper.
05-493 +++$+++ 42199 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but what has to be clear under Teague is not just the rule, but the rule's application in circumstances like this. There are a lot of rules that are clear, but if Teague means anything at all it has to mean that you should have known that, in this case, the rule would produce this result. So it's not enough to say that there was a rule. There are a lot of rules out there, but the question is whether the outcome should have been clear at the time. Isn't that what Teague means?
05-493 +++$+++ 42200 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly, Your Honor. And applying -- because when we -- when we take a look at Penry I, this Court said -- in response to a Teague argument by the attorney general, this Court held that Penry got past the threshold Teague issue because of -- at the time of the finality of his direct appeal, in 1986, the rule was well-established that the sentencer may not be precluded from considering relevant evidence in mitigation, by Lockett, Eddings, and others. So if that was a firmly established rule as of 1986 --
05-493 +++$+++ 42201 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, Penry was considerably tightened by the subsequent decision in Graham versus Collins, though.
05-493 +++$+++ 42202 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Graham v. Collins was an AEDPA case, as was Payton. So, we have a very, very different standard of review. And, if I may, Your Honor --
05-493 +++$+++ 42203 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I know Payton was an AEDPA case, but it, nonetheless, concluded that it was not unreasonable for the California Supreme Court to read instruction (k) in a way that allowed this evidence to be considered. And I would have thought, if it was not unreasonable to have that reading, that the contrary reading that you're proposing, and that the Ninth Circuit adopted below, could hardly be said to have been dictated by existing precedent.
05-493 +++$+++ 42204 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Ah. Well, the -- our position in relation to that is, the direct quote from -- direct quote from Payton itself, in which the Court said that, assuming the California Supreme Court was incorrect, Payton, nonetheless, loses. Here we're arguing that the California Supreme Court was incorrect, and, therefore, Belmontes --
05-493 +++$+++ 42205 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because if it was --
05-493 +++$+++ 42206 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- should win.
05-493 +++$+++ 42207 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- because, even if incorrect, it was, nonetheless, reasonable. And I'm just having trouble understanding how, if a contrary position is dictated by precedent under Teague, a reading 180 degrees the opposite of that could be regarded by this Court as reasonable.
05-493 +++$+++ 42208 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The unusual facts of this case are much stronger in favor of relief under the Boyde test than were those in Payton. Therefore, applying the longstanding rule of Lockett and Eddings to the different, and more compelling, facts of this case, there is no reason -- there is every reason to provide Belmontes relief, where it was denied to Payton. And there's no reason to believe that the California Supreme Court was being incorrect, but reasonable, in -- to presume, or find, based on Payton, that the California Supreme Court was being incorrect, but reasonable, in this case. Penry could not have won his case under the -- under the -- that particular analysis, because the Texas --
05-493 +++$+++ 42209 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I --
05-493 +++$+++ 42210 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Supreme Court --
05-493 +++$+++ 42211 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Graham didn't win his case.
05-493 +++$+++ 42212 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And Payton didn't win either, but we're operating under the prior regime. So -- I understand the -- the Court is suggesting, I believe, that somehow Payton is a sword, in some sense, to deny relief as to all California defendants under penalty-phase instructional claims cited by the California Supreme Court, even under different facts and under more egregious circumstances. And I -- I may have -- be misinterpreting the Court's argument, but I would argue that there are any number of scenarios, notwithstanding Payton, that would require relief under the pre-AEDPA standards when you apply the test of Boyde to all the circumstances of the case.
05-493 +++$+++ 42213 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Multhaup, one aspect of your argument I wish you would clarify, and that's in your brief at page 20, footnote 3. As I understand it, you are saying -- you are not challenging factor -- the factor (k) instruction as excluding Skipper evidence. Your challenge is limited to this particular case. Is that what you're saying in that footnote?
05-493 +++$+++ 42214 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. I'm not here to refight the battle of Boyde. You know, I spilled tons of hours of time and printer's ink in an amicus brief in 1989, and I understand the concept of "you lose." What we are arguing is that the Boyde test should be applied to the circumstances of this case, and that factor (k), standing alone, in a -- in a case where defendant relies on Skipper evidence, does not warrant relief by that fact alone. Here we have much more than that fact which, under Boyde, does call for relief. I would like to give --
05-493 +++$+++ 42215 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And the --
05-493 +++$+++ 42216 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Respondent's --
05-493 +++$+++ 42217 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- the "much more" is the questions that the jury asked?
05-493 +++$+++ 42218 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The "much more" includes the arguments by counsel, which, notwithstanding different -- reasonably differing views of it, does put a context on the -- put into context what defense counsel was arguing. We have the confusion inherent in the instruction that the Court gave the -- the putatively proper instruction about them being illustrative rather than exhaustive. We have the colloquy during the penalty deliberations. We have Juror Hailstone's follow-up question regarding the possibility of considering the availability of psychiatric treatment, which was explicitly rejected, and very likely confirming the message that had just been given to -- via the answer to Juror Hern's case, that only the enumerated factors can be considered.
05-493 +++$+++ 42219 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, there is no evidence on that question presented, right? The reason that the possibility of psychiatric treatment couldn't be considered is because neither party had put evidence on that question before the jury.
05-493 +++$+++ 42220 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, you know that, because you're the Chief Justice, but the people of San Joaquin County had no idea that that was the reason, and if not explained --
05-493 +++$+++ 42221 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. It's a question of what mitigating evidence was put before the jury. The jurors couldn't consider that, because it was the -- quite proper for the trial judge to say, "You can't consider that, because there was no evidence on it."
05-493 +++$+++ 42222 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would have been perfectly proper for the trial court to say, "You can't consider that, because" -- appended exactly the -- the explanation that you gave. And the jurors would have understood that they had to consider the evidence presented, but they couldn't speculate about other things. If, at the crucial point in the proceedings, the trial court had said, "Juror Hern, you do have to pay attention to those factors, but they're illustrative rather than exhaustive, and you must consider all of Belmontes' evidence. Please go back and deliberate," that would have cured the errors here. However, the error occurred when the -- when the court didn't do that. And Juror Hailstone's question -- the trial court's answer could only have reaffirmed the misimpression that the court returned to the -- to deliberate with. I have a -- just a few minutes, and I would like to give Respondent's answer to Justice Kennedy's question to Petitioner, paraphrasing somewhat, How does Skipper evidence extenuate the gravity of the crime? And the answer is, it doesn't at all, logically, ethically, or morally. As defense counsel conveyed to the jury, the circumstances of the crime are what they are, and there's nothing that can be done about that. The circumstances of the crime are immutable and irreparable. The only thing that can be extenuated in a penalty presentation is Petitioner's culpability for the crime. And counsel argued that Petitioner's culpability was some -- to some extent, extenuated and mitigated because the evidence showed that there was no plan to kill the decedent when they went to her house.
05-493 +++$+++ 42223 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But we have said that remorse extenuates the gravity of the crime, for punishment purposes, under factor (k).
05-493 +++$+++ 42224 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, of --
05-493 +++$+++ 42225 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that --
05-493 +++$+++ 42226 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- course --
05-493 +++$+++ 42227 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that -- and that -- that's post -- that's post-crime.
05-493 +++$+++ 42228 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And, Your Honor, this pre- and post- distinction, I don't believe has -- is a relevant distinction. It's whether it's functionally related to the culpability for the crime, because when a defendant expresses remorse --
05-493 +++$+++ 42229 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, you think pre- and crime -- pre- and post- distinction has no bearing on this case? I thought that was really the linchpin of your argument?
05-493 +++$+++ 42230 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. It's that Skipper evidence is a specific and different kind of mitigating character evidence that doesn't extenuate the gravity of the crime, but it provides a different kind of reason for sparing the defendant's life. There is --
05-493 +++$+++ 42231 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And yours is both pre- and post- -- that is, you're referring to conduct that took place before this crime was committed -- that is, his prior incarceration -- and asking the jury to project that forward to say, "That's how he behaved in prison, before he committed this most recent crime, and that's how he's likely to behave again."
05-493 +++$+++ 42232 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, all of the Skipper evidence in this case occurred as a matter of historical fact before the capital crime and -- which, in fact, gives it's much -- gives it much more weight, because it can't be suggested that he contrived his good conduct after being arrested for a capital crime. But, I'm going to make a broad statement here. There is no reported case in California where either a defense attorney or the California Supreme Court makes a text-based argument that Skipper evidence extenuates the gravity of the crime, because it's illogical and doesn't work. Look what the defense attorney did in Payton. He argued that, "Well, of course you have to consider that evidence under factor (k), because it's a catchall. It's supposed to be inclusive." That's not a text-based argument, that's a circumstantial-evidence kind of -- kind of argument. When we look at that -- when we look at that phrasing of "extenuating the gravity of the crime," with its plain meaning in English, and the distinction made, in Skipper itself, that Skipper evidence does not relate to Petitioner's culpability for the crime, the jury is going to appreciate what the -- what the attorney said to them, that the -- that the Youth Authority religious evidence does not extenuate the gravity of the crime, but has independent mitigating effect outside those enumerated factors. There's nothing -- that's a perfectly appropriate position to take, no constitutional problem there until, during deliberations, the trial court confirmed that they could only consider the enumerated factors and could not consider nonstatutory mitigation, the -- any other kind of mitigation, because that, in effect, closed out consideration of the -- of the Skipper evidence.
05-493 +++$+++ 42233 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If the judge's response to Juror Hern was so misleading, why didn't counsel object to it, if it was as obviously misleading as you say?
05-493 +++$+++ 42234 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, it's like being -- stepping off a curb and being hit by a bicycle that you didn't see coming. This occurs in the middle of jury deliberations. Nobody expected a juror to ask a question of this type. And, of course, I'm speculating here, but the trial court fielded the questions, responded off-the-cuff, and the juror -- jury went back.
05-493 +++$+++ 42235 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's why you have counsel there, to help the court when the court makes a real boo-boo, and if this was as obviously error as you say, one would have expected some objection from defense counsel.
05-493 +++$+++ 42236 +++$+++ TRUE +++$+++ MR. MULTHAUP +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ One could also have expected the trial court to say, "Let's take a minute to think about that. We're going into recess, and I'd like counsel's opinion about this, because this is a difficult question. It's not a simple yes-or-no answer." Under --
05-493 +++$+++ 42237 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Johnson, you have 6 minutes remaining.
05-493 +++$+++ 42239 +++$+++ FALSE +++$+++ MR. JOHNSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. In a minute, I'd like to briefly touch on the Teague issue. At the time Belmontes' judgment was pending, there was no precedent that would have dictated the Ninth Circuit's conclusion here regarding the sufficiency of the factor (k) instruction. And, indeed, this Court's subsequent holdings, in Boyde and Payton, bear out the fact that it was at least -- that that decision certainly was not dictated by precedent. In Boyde, this Court dealt with evidence of good character that was precisely the same as the evidence of good character here. The -- Belmontes' evidence of having succeeded during a prior commitment and religious conversion, that he might be able to help others in the future, was good-character evidence in the same way that Boyde's evidence of having won a dancing prize, of having helped children, of having helped artistic -- having artistic abilities, was all good character. And there is certainly nothing in Boyde to suggest that there is any distinction. But, even if there was, it would not be one that would compel all rational jurists to distinguish the two cases. And that's further buttressed, of course, by this Court's more recent opinion in Payton, which found that it was at least reasonable for the State Court to conclude that Payton's post-crime forward-looking evidence would be understood to fall within the factor (k) instruction if it was at least reasonable for California to find that such forward -- post-crime forward-looking evidence would fit within the factor (k). The Ninth Circuit's conclusion, to the contrary, regarding pre-crime good-character evidence, certainly was not dictated by precedent. I'd also like to address, quickly in my remaining time, Mr. Multhaup's arguments regarding the jury -- or the argument of counsel and the jury questions. Again, Boyde counsels that the relevant consideration is whether there is any reasonable likelihood that the jurors view the instructions in a way as to foreclose consideration of constitutionally relevant evidence. In this case, both -- the jurors were instructed with the factor (k). As I've said, they were given the supplemental instruction that said that the -- that the previous listing -- factors were only examples of some. And then, both counsel clearly said that the jurors could, and should, consider this evidence. Is there some possibility out there that some juror might have misinterpreted this in a -- in a -- in a different manner? I suppose so, but there is certainly no reasonable likelihood, especially in light of the fact that Belmontes' evidence, virtually all of it, was directed at this main thrust of the argument. And, just like in Payton and Boyde, for the jurors to have believed that they could nonetheless not consider that evidence would have turned the whole proceedings in a virtual charade or a pointless exercise. So far as the questions during juror deliberations, it's, first, important to recognize, none of these jurors said anything to suggest that they were actually confused about whether they could consider any evidence offered. Their question -- Juror Hern's question merely related to her -- she wanted to confirm her understanding about the role of balancing mitigating versus aggravating factors under California law. And certainly the parties there if -- would have been in a better position to realize it if these questions somehow suggested some ambiguity. There was no objection there. Moreover, in the same conference, the judge advised the jurors to review the instructions again, which, of course, again included the factor (k), and which, of course, included the supplemental instruction that said that their consideration of mitigating factors was not limited to those that had been listed, but those that had been listed were merely examples. If the Court has no further questions, I will submit the case.
05-493 +++$+++ 42240 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. The case is submitted.
05-502 +++$+++ 42245 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first today in Brigham City, Utah v. Stuart. Mr. Gray.
05-502 +++$+++ 42247 +++$+++ FALSE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: In cases involving safety exigencies, an officer's actions should be judged against a single objective standard of reasonableness, that is, whether the facts and circumstances known to the officers at the time of entry would warrant a reasonable person in believing that immediate intervention is needed to preserve the peace and protect others from harm. When officers have reason to believe that violence is imminent or ongoing, they meet that standard. In this case, the Brigham City officers responded to a complaint at 3:00 a.m. and, upon arriving, witnessed a violent and tumultuous struggle between four adults and a teenager. The officers -- when the juvenile threw a punch is when the officers acted and thereby prevented injury. This is exactly what we would expect officers to do.
05-502 +++$+++ 42248 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What were they doing in the yard anyway? This sort of occurred to me. They couldn't have seen that until they went into the fenced backyard violating the curtilage of the property. How -- was that justified?
05-502 +++$+++ 42249 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it was justified. At that time what they heard from the curb side and then from the front was the same kind of violence going on. They heard that from -- from the time they arrived all the way. They -- they heard the thumping, the shouting, someone saying, get off me, stop, stop. And so what these officers were doing, in the course of that, is investigating that -- that, and it led them to the backyard. Now --
05-502 +++$+++ 42250 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is any less required to -- to go into the curtilage than is required to go into the house?
05-502 +++$+++ 42251 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
05-502 +++$+++ 42252 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. It's the same test?
05-502 +++$+++ 42253 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. And again, that was --
05-502 +++$+++ 42254 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you say that even if he didn't see him throw the punch and -- and draw blood, they could have gone in just because they heard somebody say, stop, stop, get off me?
05-502 +++$+++ 42255 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's our position that they could have, though that's a much closer case. In this case, the officers acted in a very guarded manner. I mean, they -- they proceeded and they investigated step by step and, in fact, did not enter until a punch was thrown and there was --
05-502 +++$+++ 42256 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So what -- what you're saying is they've got to have a reasonable ground to take the first step. That may not be a reasonable ground to have taken the second step right then and there, but it's the same reasonableness standard.
05-502 +++$+++ 42257 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it is.
05-502 +++$+++ 42258 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's -- that's --
05-502 +++$+++ 42259 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-502 +++$+++ 42260 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ One thing that was left out of the succession of acts -- Utah provides for telephone warrants, and there was no attempt to do that. Once they checked to -- to determine that there was probable cause to enter, they could have called for a warrant, but they didn't. Is there a reason why they didn't?
05-502 +++$+++ 42261 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The reason is where there's a violent situation, things can change in seconds. I mean, it can turn deadly in seconds. They don't have time. Even though a telephonic warrant would certainly be a more speedy process of getting a warrant, it's not speedy enough where punches are being thrown. I mean, it can turn deadly, one blow could give someone a concussion or even rupture a spleen.
05-502 +++$+++ 42262 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you don't -- you don't really mean that if they saw somebody inside with a gun and they heard him saying, I'm going to shoot you in 2 minutes, since they could have gotten a telephone warrant, they would have to had to get a telephone warrant?
05-502 +++$+++ 42263 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, not at all.
05-502 +++$+++ 42264 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, you -- you don't want the -- the telephone warrant requirement to -- to up the ante on -- on what it takes to -- for the police to go in without a warrant, do you?
05-502 +++$+++ 42265 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. In fact, precisely for that reason, the officers would not need a telephonic warrant in that situation no more than they would need a telephonic warrant in this situation. Time is of the essence. Violence --
05-502 +++$+++ 42266 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it wouldn't be of the essence if you know you have 2 minutes. You know I'm going to kill you in 2 minutes.
05-502 +++$+++ 42267 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that -- that's --
05-502 +++$+++ 42268 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you really want the policeman to say I got 2 minutes, you know, dial in and get a warrant? That's ridiculous. (Laughter.)
05-502 +++$+++ 42269 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that would be assuming -- that would be assuming that you could take someone who is threatening in that manner at his word. I don't think that's something the officers could -- could afford to do.
05-502 +++$+++ 42270 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are the police instructed -- the city police instructed about when the telephone warrant procedure is appropriate?
05-502 +++$+++ 42271 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That I -- I do not know. I assume so. They have procedures in place, but that I do not know.
05-502 +++$+++ 42272 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ When you speak about a violent situation, would that be limited -- would that apply here just because a punch was thrown, or would it be enough that the officers saw some men restraining the young man, or would it be enough if there were violent words being exchanged?
05-502 +++$+++ 42273 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With -- with violent words, generally not, though if it's accompanied with a show of immediate force or violence, then yes, in that situation. In this situation, I believe that officers could have entered prior to the punch being thrown. What they witnessed is -- is this violent struggle between four adults and a teenager. They had no idea whether or not they were trying to molest the -- the teenager or whether the teenager was an intruder or what happened. But they could tell that it was violent. They knew that alcohol was involved based on the circumstances as they approached.
05-502 +++$+++ 42274 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did they know that minors were involved? The record doesn't show that, at least in the preliminary direct exam of the officer.
05-502 +++$+++ 42275 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That minors were involved?
05-502 +++$+++ 42276 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. I mean, they knew that once they got into the backyard. Did they know before they got into the backyard?
05-502 +++$+++ 42277 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They knew that minors --
05-502 +++$+++ 42278 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or did they just know that minors stay up late at night?
05-502 +++$+++ 42279 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They knew that minors were in the backyard. They -- they witnessed the two juveniles. They did not know that --
05-502 +++$+++ 42280 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that's after they went into the backyard.
05-502 +++$+++ 42281 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. They saw that from the driveway, through the -- the slit -- slit -- slats in the fence.
05-502 +++$+++ 42282 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They could see that they were minors.
05-502 +++$+++ 42283 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, yes.
05-502 +++$+++ 42284 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How much -- you've been focusing on the violence because of the punch being thrown, but I gather they were called originally because of concern about the noise and disturbance of the peace and all that.
05-502 +++$+++ 42285 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-502 +++$+++ 42286 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that a sufficient basis for them to have gone into the backyard and proceed from there?
05-502 +++$+++ 42287 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-502 +++$+++ 42288 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They're just shouting. There are five people in the house shouting. It's 3:00 in the morning or whatever. Is that -- is that enough?
05-502 +++$+++ 42289 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Probably not, certainly not where the State is -- where the State offers as -- as the proffered justification safety, it would not be enough. That would be a different justification for their actions. Certainly where they're disturbing the neighbors, we would argue that the expectation of privacy had diminished in that home because of that disturbance. But again, where the State -- or where the city is offering as a justification safety, that would not be sufficient to go in.
05-502 +++$+++ 42290 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but if -- if the -- if the complaint were -- were simply a complaint of noise, and they got to the -- the gate, the back fence, and they could hear all the racket inside and there didn't seem to be any practical way to get people to come to the fence to talk to them, wouldn't they have had the right to go through the gate and at least go up to the door and bang on the door?
05-502 +++$+++ 42291 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-502 +++$+++ 42292 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So they could have gotten through the curtilage. They could at least have gotten to the back door based entirely on noise.
05-502 +++$+++ 42293 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-502 +++$+++ 42294 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
05-502 +++$+++ 42295 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-502 +++$+++ 42296 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Except that there was a front door, which they approached first. As I recall, they left one of the officers in the front.
05-502 +++$+++ 42297 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-502 +++$+++ 42298 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So they could have banged on the front door.
05-502 +++$+++ 42299 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They -- they could have, though the evidence was that -- and the trial court found that it was so loud and tumultuous that nobody would have heard it or probably would not have heard it.
05-502 +++$+++ 42300 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ But I'm a little puzzled. If the noise is the cause of their being there and if the noise is so loud at 3:00 in the morning that it's still continuing and nobody can hear the knock on the door -- they knock on the door several times and shout -- would they not have the right to go in then to quell the noise?
05-502 +++$+++ 42301 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. All that I am maintaining is that they would not be justified under a safety exigency to go in. Certainly to -- as far as disturbing the peace, then yes, but not where the proffered justification is safety.
05-502 +++$+++ 42302 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ So if you're going to rely on the safety and the -- safety and the danger of harm, how serious does the harm have to be? And I use the word harm as defining the -- the threshold for this kind of entry. What if a father was spanking his child, for example?
05-502 +++$+++ 42303 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Spanking of a child would not. There's no indication under most circumstances of an intent to injure or abuse. Now, of course, if there are circumstances that would suggest abuse, then officers could go in.
05-502 +++$+++ 42304 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Doesn't yelling so loudly you can't hear police knock at the door at 3:00 in the morning suggest that violence is at least imminent or may well be associated with what they're hearing?
05-502 +++$+++ 42305 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It certainly approaches that, but again, what we would maintain is there probably has to be more than simple shouting. If -- if it's accompanied by threats or a show of force or violence, then certainly they could go in.
05-502 +++$+++ 42306 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is there, in addition to the safety rationale which you're -- justification, which you're arguing here -- is there a justification to go in to stop an ongoing felony whether safety is involved or not?
05-502 +++$+++ 42307 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-502 +++$+++ 42308 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is -- is that a separate --
05-502 +++$+++ 42309 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. That --
05-502 +++$+++ 42310 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, you see a guy turning out counterfeit dollar bills, $100 bills, and can you go in right away if you see him doing that?
05-502 +++$+++ 42311 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's a crime ongoing, in progress. So there certainly could be made an argument. Now, whether or not there's an exigency, I think that's doubtful because police could secure the scene and secure a warrant and then execute that warrant.
05-502 +++$+++ 42312 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I mean, but if that's the case, you have a much easier argument. Wasn't there an assault here? There was clearly an assault.
05-502 +++$+++ 42313 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and certainly where officers have reason to believe that there's an ongoing assault, officers can enter. Now, one of the problems with the Utah Supreme Court's holding in this case --
05-502 +++$+++ 42314 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In connection with the answer you just gave, it doesn't matter then? If it's an ongoing crime, they can go in? It doesn't matter whether it would be a misdemeanor or a felony? It doesn't matter how grave the crime is?
05-502 +++$+++ 42315 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this Court in Welsh indicated that minor offenses -- you couldn't rely on the exigent circumstances exception, or at least it is what it suggested. But certainly an assault, under Utah law, is a class B misdemeanor, punishable by up to 6 months in jail, and that's certainly of sufficient gravity to justify officers entering.
05-502 +++$+++ 42316 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Any kind of assault. I gather it's an assault if you're just sort of a couple of guys pushing each other back and forth.
05-502 +++$+++ 42317 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, under Utah law, an assault is defined as unlawful force or violence so as to -- with an intent to do bodily injury. Now, pushing -- there's not that there. Now, one of the chief problems or primary problems with the Utah court's decision in this case is it creates a complicated and confusing bifurcated standard that forces officers unrealistically to choose between roles, to choose whether or not they are going to enter and act as caretakers or enter and act as law enforcement officials. Well, the reality -- first of all, it's -- it's very difficult for officers to try to make those kind of judgments in the heat of the moment, and this is precisely the kind of a -- the kind of case where that would be impossible to achieve because officers in this case are acting clearly under both roles. They're stopping crime and they are also protecting others from harm. We want officers to rescue people from harm when they have a reasonable basis to do it, not wait until you have to call an EMT. That's what Mincey provides. And if there are no further questions, I would reserve the remainder of my time.
05-502 +++$+++ 42318 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Let me just ask this one question, if I may, if you have -- did the other side preserve the right to challenge this entry under the Utah constitution?
05-502 +++$+++ 42319 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, they did not, and -- and the Utah Supreme Court recognized that.
05-502 +++$+++ 42320 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. General McNulty.
05-502 +++$+++ 42322 +++$+++ FALSE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, may it please the Court: The Fourth Amendment does not require police officers to stand by and be a spectator to escalating violence in the home when such an officer has an objectively reasonable basis to believe, given the totality of the circumstances, that prompt action is necessary to prevent imminent harm.
05-502 +++$+++ 42323 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So if there were no punch in this case, would they have had a sufficient basis? 3:00 in the morning, loud shouting. Can they conclude, based on their experience, that's likely to escalate into violence and enter on that basis?
05-502 +++$+++ 42324 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Mr. Chief Justice. In these facts, the Government suggests they would. The -- under the Fourth Amendment, a police officer may enter a residence --
05-502 +++$+++ 42325 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's just because it's loud? Suppose they were just singing and laughing?
05-502 +++$+++ 42326 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it would depend on -- if -- if words are going to be the key --
05-502 +++$+++ 42327 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ One thing leads to another. Right?
05-502 +++$+++ 42328 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's correct. It depends upon, of course, what those words are. It's really a combination of the words and the context of the words. Here you have --
05-502 +++$+++ 42329 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So there has to be some indication of the likelihood of escalation into violence?
05-502 +++$+++ 42330 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct, Your Honor. That's -- that's --
05-502 +++$+++ 42331 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Well, why? What if they're just so loud that it's perfectly obvious they're keeping -- getting -- the neighbors are awake and disturbed by it. Does it have to be a threat of violence?
05-502 +++$+++ 42332 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, if there's a loud noise alone, certainly the neighborhood shouldn't have to be a hostage to that noise, and the police officers may be acting reasonably to do what is necessary to end that noise. But it's going to --
05-502 +++$+++ 42333 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ So then it doesn't matter what's being said.
05-502 +++$+++ 42334 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So then it does matter.
05-502 +++$+++ 42335 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the -- what's being said may determine -- may determine -- whether or not entry is necessary to respond to an imminent threat where a prompt response is critical.
05-502 +++$+++ 42336 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ It may determine what is necessary to prevent harm, but what if it's not necessary to prevent harm, just necessary to prevent noise?
05-502 +++$+++ 42337 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Then it may still be reasonable. It may still be reasonable, Your Honor.
05-502 +++$+++ 42338 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ It seems to me the harm inquiry in this case is, you know, sort of superfluous. We don't even have to look at that.
05-502 +++$+++ 42339 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree, Your Honor. It may be that the -- the noise alone could justify the circumstance. Certainly we wouldn't want a test that excluded words only --
05-502 +++$+++ 42340 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, no. You -- you don't want to say that. The noise alone wouldn't justify going in without knocking as would the -- a scene of a violent event occurring. Certainly you'd have to knock on the door. Now, if they didn't hear you and the only way to get their attention to stop the noise is to go in, fine, but wouldn't you have to knock on the door real hard before you went in to stop the noise?
05-502 +++$+++ 42341 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, in most cases a knock on the door would -- would be appropriate thing to do.
05-502 +++$+++ 42342 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Not appropriate. Necessary.
05-502 +++$+++ 42343 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Necessary.
05-502 +++$+++ 42344 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it may very well be necessary depending upon the totality of the circumstances.
05-502 +++$+++ 42345 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I hope so. I mean -- people --
05-502 +++$+++ 42346 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Yes, but we've got a case in which knocking on the -- the noise is so loud nobody can hear the knock.
05-502 +++$+++ 42347 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's why a knock on the door may not always be the right thing to do. In some cases it could be a futile gesture. In this case, the police announced themselves and were not heard because of that tumultuous --
05-502 +++$+++ 42348 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ And they did knock on the door, yes.
05-502 +++$+++ 42349 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They entered and announced their presence, and they were not heard when they did that. So the knock is -- is normally the appropriate course, but in certain circumstances, the knock may either be futile, it could be dangerous, depending upon what was happening, and it certainly could waste some time if it was a dire emergency. The -- under the Fourth Amendment, a police officer may enter a residence without a warrant when a reasonable officer could conclude, given again all the circumstances, that an impending threat to life or safety justifies immediate intervention and the scope of the intrusion is reasonable in relation to the nature of the emergency. Whether the officer was subjectively motivated to enforce the law or render aid has no relevance in a constitutional inquiry. Volatile situations involving violence in the home can escalate in -- in seconds, and the on-the-scene, split-second judgment about exactly when the police officers should intervene is precisely what the totality of the circumstances test has long addressed and resolves the balance of the Fourth Amendment values. And this Court's recent decision in Georgia v. Randolph contains a clear expression of concern for the need for the police to take prompt action to prevent harm in domestic violence cases. In this case --
05-502 +++$+++ 42350 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This wasn't -- this wasn't a domestic violence case. It wasn't anybody inside calling the police and crying, danger, rescue me. It was an outsider who complained about the noise. So I am wondering why you are emphasizing the prevent somebody from being hurt instead of they're disturbing the peace and the police have a right to protect the neighborhood. It seems to me that that's an easier argument to make.
05-502 +++$+++ 42351 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is, Justice Ginsburg, to look at the -- the threat to the quiet of the community as one aspect of this. But the case contains even more. The case contains a punch that did some harm to another person in a kitchen setting where there is a strong possibility of escalating violence. It's the additional facts of that violence that was a potential there, added to the noise and the evidence of underage drinking, that made the totality of the circumstances objectively reasonable for the officers to --
05-502 +++$+++ 42352 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, counsel, let's suppose you have a police officer who knows there's evidence in this house, but he doesn't have probable cause to get a warrant. And he also knows that the family is going to be reenacting the murder scene from some movie as part of the family reunion. And so he's there just at the time where the -- in the scene the one guy says, and now I'm going to kill you with this knife, and he says, ah, and he goes in. Now, subjectively we know that he has no basis for fearing violence, but a reasonable officer on the scene, hearing somebody say I'm going to kill you with this knife, would have a basis for entering. So under your test, is that entry permissible or not?
05-502 +++$+++ 42353 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Permissible, Mr. Chief Justice.
05-502 +++$+++ 42354 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Really.
05-502 +++$+++ 42355 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because there the officer is unaware of the fact based upon the -- as I understood the facts presented, unaware of the fact that that is not --
05-502 +++$+++ 42356 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, no. He knows. He knows. He heard this is what they do at the family reunion. They always reenact this. (Laughter.)
05-502 +++$+++ 42357 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So he knows that there's no -- well, but that's the difference here between looking at the subjective motivation or what an objective, you know, officer would understand.
05-502 +++$+++ 42358 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the officer has specific information --
05-502 +++$+++ 42359 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
05-502 +++$+++ 42360 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a fact knowing that this is not truly an imminent threat or necessary to prompt a quick response, then that would be a fact in the totality of the circumstances that wouldn't justify. But, on the other hand --
05-502 +++$+++ 42361 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you're saying the objective -- the -- the objective officer always knows at least as much as the officers actually know.
05-502 +++$+++ 42362 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ A good way to put it.
05-502 +++$+++ 42363 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the officer knows --
05-502 +++$+++ 42364 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't -- isn't that your standard?
05-502 +++$+++ 42365 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if -- I'm not sure if I understand the question. Would you please repeat it?
05-502 +++$+++ 42366 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. I -- I thought you were getting to the point of saying that on the objective test that you urge, the officer -- the objective police officer who sets the standard is deemed to know at least as much as the officer on the scene actually knows. In other words, we don't exclude information --
05-502 +++$+++ 42367 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-502 +++$+++ 42368 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- from our objective test when the officer actually has that information.
05-502 +++$+++ 42369 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-502 +++$+++ 42370 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
05-502 +++$+++ 42371 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What makes it difficult at times is that you often have two officers. One may know something, another may not know it. And that's why objective information is --
05-502 +++$+++ 42372 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Except I -- I don't think we look to whether he knew that this was a family reenactment. I think we look to the facts that he had -- that had come to his attention which caused him to believe that this was a family reenactment. I mean, you know, if he had read it in a newspaper or something else. The facts are -- are what matter and not --
05-502 +++$+++ 42373 +++$+++ TRUE +++$+++ MR. MCNULTY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Scalia. That's -- I agree that that is going to -- even what the officer believes he knows may be subject to error, and therefore, the objective test pulls us out of this question of knowing the officer's mind and allows us to look at the totality of the circumstances, what really was occurring and determine whether or not the reasonable officer would be able to enter constitutionally under those circumstances. And here again is the -- a situation where there was mounting evidence, and the court in Utah wanted to make the motivation of the officer a significant factor in determining whether or not the officer could enter. Specifically, the court looked to the motive or intent of the officer to render aid as one way to analyze the situation. And the government argued that those distinctions -- or the distinction between rendering aid or entering for a law enforcement purpose is really a -- an unnecessary distinction because the officer, as the counsel for the State has argued, is acting in a split-second situation, seeking -- thank you very much, Mr. Chief Justice.
05-502 +++$+++ 42374 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General. Mr. Studebaker, we'll hear now from you.
05-502 +++$+++ 42376 +++$+++ FALSE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: There's two bases or two exceptions which would allow somebody to enter into somebody's home, which are before the Court today, one being the emergency aid exception to the warrant requirement, the other one being exigent circumstances requirements for the warrant. Under the facts of this case, neither one of those situations apply. Under exigent circumstances, there has to be probable cause to enter, and there has to be a warrant to enter. And if neither one of those -- actually under exigent circumstances, there has to be probable cause and there has to be the requirement that there be imminent danger basically to evidence or to the person. And if there's not exigent circumstances, and the officers have an obligation to obtain a warrant based upon probable cause to enter the home.
05-502 +++$+++ 42377 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what --
05-502 +++$+++ 42378 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought that probable cause was conceded, and I thought that the Utah courts didn't question that there was probable cause.
05-502 +++$+++ 42379 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the -- what happened was that the Utah courts found that the probable cause was there for the emergency aid exception, but I believe under the exigent circumstances requirement -- or the exception, that probable cause was not there to get out -- or actually to get into the home on the situations. But even if probable cause is conceded, the fact is that the facts of the case don't rise to the level of requiring such as immediate entry into a home to bypass the warrant requirement.
05-502 +++$+++ 42380 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May -- may I just get back to your general statement? Do I understand you to say that if they arrived on the scene and, you know, a really wild party was going on at 3:00 a.m., they knock at the door, nobody answers the door, they can't hear it for all the screaming and the music and so on, that under those circumstances, the police could not go in to -- to quiet things down?
05-502 +++$+++ 42381 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, Your Honor. They would actually have to go out and get a warrant to enter the home. There's not an exigent circumstance under the facts that you presented which would require them to enter the home and bypass the warrant requirement. It's not severe enough under those facts.
05-502 +++$+++ 42382 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's say they -- they see a fight going on. What kind of calculation do you think has to go on in the mind of the officer? They have to think, well, let me look at these people. Do they look like they're -- they're strong enough to really hurt each other? How likely is it that they're going to grab some object that's lying around, a knife, a baseball bat, or something, and -- and escalate the violence? What -- what sort of thought process do you think a reasonable officer is supposed to go through in that situation?
05-502 +++$+++ 42383 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Alito, what the officer is required to do is to weigh the totality of the circumstances and make a decision based upon the totality of what they see. And unfortunately, these situations are always fact-intensive based upon what's seen on the scene. And in the case presented here before the Court, none of those facts are presented that -- that would actually weigh and that was going to escalate into that type of situation. The officers actually had personal, firsthand knowledge of the events that were happening. They stood outside the home. They watched the event transpire through the window. The exigency was over when the officer entered the home.
05-502 +++$+++ 42384 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why can't you? Is there any case or anything that says you don't look at the whole circumstance to decide if it was reasonable to enter? I mean, suppose I just wrote an opinion, for a hypothetical's sake, that says, look, there was so much noise at 3:00 in the morning nobody could even hear a knock and he looks in the window, sees one of the -- a kid there being held, who's obviously been drinking under age. He takes a swing at somebody else and pokes him in the nose and blood starts to run or -- and under those circumstances, of course, it was reasonable to go in. End of the matter.
05-502 +++$+++ 42385 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Except for the fact, Your Honor, I mean, the -- the situation we have is that is -- it would depend on whether it's an ongoing situation or not. And in the facts presented here, it was not an ongoing situation. It ended and then the officer --
05-502 +++$+++ 42386 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You mean -- you mean the noise stopped?
05-502 +++$+++ 42387 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- shortly after the smack in the face by the juvenile, Your Honor, the officer entered the home, and by his testimony, it abated right after he entered the home.
05-502 +++$+++ 42388 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. The question is whether he could go into the house, and are you saying that before he went into the house, all the noise stopped?
05-502 +++$+++ 42389 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It had not stopped. No, it had not, Your Honor.
05-502 +++$+++ 42390 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. So my question is I'm interested in the law of it. Why can't I -- what's -- what -- the -- the Constitution says reasonable or unreasonable, forbids an unreasonable entry, search. So this doesn't seem unreasonable. A policeman isn't a lawyer. He just has to do what's reasonable in the circumstance. It's a huge -- well, I would be repeating myself. But what I want to know is what in the law makes that opinion wrong?
05-502 +++$+++ 42391 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, what makes that opinion wrong, based upon the facts that were presented, is the fact that the -- there was no warrant achieved in the situation. If the officer is entering under exigent circumstances --
05-502 +++$+++ 42392 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And there are two reasons why he didn't want to go get a warrant. It would take about half an hour, at which time all the neighbors are awake, and they have to lose an hour of sleep. And in addition to that, the underage drinking will continue for another half an hour or an hour. And in addition to that, somebody else might get poked in the nose. So those are the reasons why -- or worse. So those are the reasons why he thought it was reasonable to go in.
05-502 +++$+++ 42393 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That may be what he thought, not the officer --
05-502 +++$+++ 42394 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Those are the reasons why it was reasonable to go in.
05-502 +++$+++ 42395 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-502 +++$+++ 42396 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, what's wrong with that opinion?
05-502 +++$+++ 42397 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What's wrong with the opinion, Your Honor, is it still requires a warrant under the situation.
05-502 +++$+++ 42398 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, suppose I were to say at the end of that it doesn't require a warrant because it was not unreasonable objectively to go in under those circumstances. What I'm looking for you to do is to tell me why.
05-502 +++$+++ 42399 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the -- if they're going to enter the home, there has to be, obviously, a serious situation that's going to arise. And so with the -- the presentation which you presented, it's not serious enough to require the sidestepping of a warrant in the situation.
05-502 +++$+++ 42400 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Studebaker, I'm not sure that even the noise wasn't enough to justify what the police did here. As -- as I recall, they -- before they went in, they -- they heard all this noise and they saw the punch. They pushed open the screen door and announced that they were the police. Okay?
05-502 +++$+++ 42401 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-502 +++$+++ 42402 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And then only went in when nobody heard them. Then they shouted even louder, police. I'm not sure that -- that just the noise wouldn't be enough to allow that. If you can't hear the policeman from the door, who's coming to check about a 3:00 a.m. noisy party, you don't hear his knock on the door, can the policeman not open the door and shout, police? Is that an unreasonable search and seizure. And then if you don't hear that, can he take two steps into the house? He's -- he's not looking under the carpets. He's not looking in the desk drawers. He's just shouting police so that he can bring to the attention of the people there the fact that there's been a complaint from the neighbors and you have to knock off the noise. I -- I would think that's perfectly reasonable. Never mind the punch in the nose.
05-502 +++$+++ 42403 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, and you asked whether I thought it was reasonable or not, and I would say it's not. The -- the -- to bypass that warrant requirement, to enter the home under an exigent circumstances, which is what they were there for, it's got to be more serious than a -- a loud party, the situation. And ironically, the -- the testimony of the officer, which I guess there was a dispute about whether that was there or not because it's not specifically in the findings that the trial judge made or the two appellate courts ruled on -- but if the officer entered the home and shortly after that, I mean, he opened the door, according to his testimony, and announced, basically raised his voice, and they heard him, why cannot he have done that outside the home? And that's the situation. This wasn't a serious enough situation that he couldn't have made the effort to make his presence known outside.
05-502 +++$+++ 42404 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They didn't hear him when he -- when he just opened the screen door. He had to step in a few more -- a few more steps. Then they finally heard him. That's his -- the way I understand these facts.
05-502 +++$+++ 42405 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And, Justice Scalia, he also had to raise his voice, and our contention --
05-502 +++$+++ 42406 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course, he had to raise his voice. I mean, there was a lot of noise going. It just seems to me so unreasonable, when a policeman comes to tell people they're making too much noise and the neighbors have complained, that he can't do the minimum that's necessary to get their attention so he can tell them that. He has to go get a warrant to tell them that the neighbors are complaining about too much noise? That just seems absurd.
05-502 +++$+++ 42407 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, he would have to get a warrant. And -- and the requirement --
05-502 +++$+++ 42408 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does it say that in a case somewhere, or is that just your opinion?
05-502 +++$+++ 42409 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's my opinion, Your Honor.
05-502 +++$+++ 42410 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Now, what I would like to know is what does it say in a case because I -- I agree, at 3:00 in the morning, it might not appear to many people to be unreasonable when the party is so loud that no one can sleep, that they have to take an extra hour or half an hour or 40 minutes to just tell the people inside the house, knock it off. Now, is there a case somewhere that says -- I guess, we could take a poll or something, but is there a case that casts some light on this?
05-502 +++$+++ 42411 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I believe Mincey itself requires the -- the seriousness of the offense be evaluated, and further --
05-502 +++$+++ 42412 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which case?
05-502 +++$+++ 42413 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mincey v. Arizona.
05-502 +++$+++ 42414 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was that involving a -- is that in this Court? Yes?
05-502 +++$+++ 42415 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-502 +++$+++ 42416 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And was that involving a party or noise, or what was it involving?
05-502 +++$+++ 42417 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it was not involving a party or noise.
05-502 +++$+++ 42418 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. It involved -- it involved a homicide, but there, the search in question took place after the premises -- after the entry, after the premises were secured. The entry was never in question in Mincey.
05-502 +++$+++ 42419 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
05-502 +++$+++ 42420 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What was in question was the search after the premises had been secured.
05-502 +++$+++ 42421 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, and --
05-502 +++$+++ 42422 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I don't see how that helps you because here, in the course of securing the -- the premises, they had all -- all the evidence they needed.
05-502 +++$+++ 42423 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and to answer the Court's question, there is nothing that I'm aware of where this Court has come out and said that a party is --
05-502 +++$+++ 42424 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So Mincey doesn't help.
05-502 +++$+++ 42425 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. And so we --
05-502 +++$+++ 42426 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, I wouldn't want this to be the party case. This also involves violence and it also involves underage drinking and all three are there together. But I guess a policeman, where he sees or hears or knows a crime is going on, can take steps to try to stop it so that it doesn't have to continue. And is there any case that says it depends on how serious a crime? Is there a case that says if it's a sort of minor crime, like a disturbance of the peace, you have to permit it to continue, but if it's a major crime like homicide, you don't have to?
05-502 +++$+++ 42427 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe there's anything that specifically says that, Your Honor. No. But there are cases out there that say that under the exigent circumstances, it's got to be a serious situation, and the question then becomes is -- is the situation -- is the party -- is the loud noise complaint serious enough to warrant entering into the home. And no, we would say it's not, Your Honor. It doesn't rise to that level, especially considering the fact that the exigency that the officers relied upon, the smack -- and it was over. The situation was already under control.
05-502 +++$+++ 42428 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it was -- it was over until somebody threw the next punch. They don't know what's going to happen the next. The kid broke away from the four people who were trying to restrain him once. Presumably he might be able to do it again. Maybe one of the four who were restraining him might come up with the idea that the best way to stop him from throwing another punch was to throw one at him. The -- the police cannot make -- it seems to me on the facts in -- in this record, could -- could not reasonably draw the assumption that there was no risk of further violence. Am I going wrong somewhere?
05-502 +++$+++ 42429 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not completely, Justice Souter. But we do have a situation where only he broke free from one of the adults, not three of the adults. He was still under control in this situation. And he had gotten his hand free and smacked one of the other adults, the one who was the victim in this situation. So the officers -- unlike some situations where they're called out and they wander on a situation, the officers in this case had personal knowledge of what was going on. They stood outside the home and watched the event transpire. And so they really need to wait and observe what's going to happen and wait till the last second before they need to go in. In this situation, there was nothing that would demonstrate in the facts that it was going to escalate at all.
05-502 +++$+++ 42430 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't -- you can't attribute what you just said to the trial court, and you emphasize the trial court's findings. The trial court said about what went wrong what the police should have done, as required under the Fourth Amendment, was knock on the door. The evidence is there was a loud, tumultuous thing going on and that the occupants probably would not have heard him. But under the Fourth Amendment, he has an obligation to at least attempt before entering. Now, that's a statement that what went wrong was they didn't knock even though it was likely a futile act. Do you -- do you agree that that's a correct statement of the law, that what the police didn't do that they should have done was knock?
05-502 +++$+++ 42431 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Ginsburg, they should have knocked. They should have made that effort first.
05-502 +++$+++ 42432 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why isn't screaming, police, enough? I mean, as I understand the facts, he first opened the screen door. Now, is -- is that an entry? He didn't go in. I assume the screen door opens out. Most screen doors open out. He opened the screen door and shouted, police. Now, that -- that doesn't count? he has to knock on the screen door instead, even though they're more likely to hear him if he opens the screen door and yells, police? Why doesn't that meet the requirement? I -- this -- why is the trial court obsessed with knocking? (Laughter.)
05-502 +++$+++ 42433 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't understand that.
05-502 +++$+++ 42434 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, and I think the reason the -- the trial court and -- is concerned about the knocking issue is it's, if you will, the baseline requirement under the Fourth Amendment, under the facts of this case, was to make their presence known by knocking.
05-502 +++$+++ 42435 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but the -- as I understand the -- the trial court, he accepted the probability that the knock would be futile, and yet he thought as a formality it was nonetheless required. A, do you understand the trial court to have taken that position? And B, if it did, do you believe that is correct as a statement of Fourth Amendment law?
05-502 +++$+++ 42436 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Justice Souter. I didn't catch the first A part.
05-502 +++$+++ 42437 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, did -- do you understand the trial court to have taken the position that even though the knock would probably have been futile, the police were required to -- to make it anyway, to knock anyway?
05-502 +++$+++ 42438 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is what the trial court --
05-502 +++$+++ 42439 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and do you understand that to be a Fourth Amendment requirement, i.e., no futility exception?
05-502 +++$+++ 42440 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do, Your Honor, and I know that that's a -- a complicated issue, but it's still a requirement. But further, the court -- the trial court --
05-502 +++$+++ 42441 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why should there be no futility exception?
05-502 +++$+++ 42442 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, even if there is, Your Honor, the trial court did not just say that -- there -- he -- the evidence was gone because of the failure to knock. The trial court found that the exigencies, as well as the appellate courts, didn't rise to the level which would require entry into the home.
05-502 +++$+++ 42443 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that -- that may be on your argument that noise is never sufficient to dispense with a warrant requirement. But it seems to me that in -- in the reasonableness analysis that the trial court was going through, the trial court was saying even if it would probably be futile, it is not a reasonable entry without a knock. And -- and I take it you -- you accept that and you think the trial court was correct, that there is no futility exception.
05-502 +++$+++ 42444 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I agree, Your Honor, and this is why. Under, I believe, Wilson v. --
05-502 +++$+++ 42445 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why -- why should we require a -- a futile act in the name of reasonableness?
05-502 +++$+++ 42446 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, first, it wouldn't have taken any effort at all to follow through on this, and even though this Court has ruled that, you know, there is mandatory knock and announce -- or requirement, with some exceptions, I don't believe that this is one of those exceptions.
05-502 +++$+++ 42447 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No one is denying that. I mean, we've had a knock and announcement requirement for 900 years.
05-502 +++$+++ 42448 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
05-502 +++$+++ 42449 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the question is do you have to knock and announce when, on the facts before you, it is apparent that nobody will hear the knock and it will just be a wasted gesture.
05-502 +++$+++ 42450 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-502 +++$+++ 42451 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why?
05-502 +++$+++ 42452 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because, Your Honor, it's our position that it's one of the -- the threshold requirements to protect somebody when they're inside their home is to make that effort.
05-502 +++$+++ 42453 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But isn't the standard of the Fourth Amendment a reasonableness standard, and isn't there something bizarre about saying reasonableness requires a totally futile gesture?
05-502 +++$+++ 42454 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was the finding of the court, Your Honor, the trial court, that it was futile. But, again, when an officer is placed in that situation to say that if an officer can decide whether something is futile or not, that could actually -- then that exception, if we're not careful, absorb that rule. So I --
05-502 +++$+++ 42455 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, yes, that's why courts review these things.
05-502 +++$+++ 42456 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, and that is --
05-502 +++$+++ 42457 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if the court says, yes, based on the evidence before me, it would have been futile, do you think Fourth Amendment reasonableness requires the court and ultimately the officer to demand the knock anyway?
05-502 +++$+++ 42458 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Personally? Yes. Legally? No.
05-502 +++$+++ 42459 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
05-502 +++$+++ 42460 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, I am not going to try -- but, again, this Court -- the -- the courts below did say that that exigent circumstances didn't rise to the level --
05-502 +++$+++ 42461 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where did the -- where did the trial court say that in the findings of fact?
05-502 +++$+++ 42462 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor?
05-502 +++$+++ 42463 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm looking at the findings of fact. They're in the petition appendix at page 46 and 47. I don't see anything that has been specifically identified by the finder of fact as inadequate, other than the failure to knock. Where -- where did the -- where does the court say it doesn't rise to the level of exigent circumstances?
05-502 +++$+++ 42464 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if I look at paragraph 5 of the joint appendix -- or I'm sorry -- of the -- of the order, it says, at that point in time the court finds no exigent --
05-502 +++$+++ 42465 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where is it? Where is it?
05-502 +++$+++ 42466 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor. In the petition for cert filed by the State of Utah, and it would be appendix page 47.
05-502 +++$+++ 42467 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but what it says right after that to explain is it would have been sufficient. What he -- what he should have done was knock, and that would have supplied all that was necessary.
05-502 +++$+++ 42468 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, and again, this isn't the, maybe, best worded order that the city had prepared in this case when they -- when the -- it was actually the city that prepared this, Petitioners. When I look at it, I look at two different sentences there. There was no exigent circumstances, and further, what he should have done was knock. But further, the two appellate courts that heard this matter before, did rule on the exigent circumstances because that's what the Petitioners in this Court had brought before the appellate courts, and they found that in both the Utah Court of Appeals and the Utah Supreme Court, that the exigent circumstances weren't sufficient enough.
05-502 +++$+++ 42469 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You know, maybe -- maybe you're taking our announce and a knock -- knock and announce requirement too -- too seriously or too literally. I mean, if a police officer comes up and the door is open, what does he have to do? Lean over and knock on the side of the door? Can't he shout, hello, police? Don't you think that satisfies a knock and announce requirement?
05-502 +++$+++ 42470 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
05-502 +++$+++ 42471 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You really think you got to knock even when the door is open.
05-502 +++$+++ 42472 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, under the situation, he's got to make his presence known.
05-502 +++$+++ 42473 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. And he did that here.
05-502 +++$+++ 42474 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
05-502 +++$+++ 42475 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He stood at the door. He opened the screen door and said, police --
05-502 +++$+++ 42476 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
05-502 +++$+++ 42477 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- which he thought would be more effective than knocking on -- on the -- you know, the -- the edge of a screen door, which doesn't make a very good knock. (Laughter.)
05-502 +++$+++ 42478 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And once he raised his voice, though, Your Honor, and -- and made himself a little bit more vocal, then they noticed him there. And the --
05-502 +++$+++ 42479 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they still didn't stop. I -- I read somewhere in the facts that only gradually, as each participant in the melee became aware of his presence, did they sort of stop. It wasn't that as soon as he entered, everything quieted down immediately.
05-502 +++$+++ 42480 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Chief Justice, like you say, once they made their presence known, it dissipated. The -- the position would be if they can make their presence known inside the home, they can make their presence known outside the home and still protect that sanctity of the home that we're trying to insure that people are protected in within their home.
05-502 +++$+++ 42481 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, there seemed to be agreement that they couldn't have made their presence known because the noise inside was so loud that they would not have been heard.
05-502 +++$+++ 42482 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's what the -- the lower courts have found to be true. But Justice -- currently, Justice Ginsburg, they found it to be true that the exigent circumstances we're not met under these facts. It wasn't serious enough to enter the home without the warrant, and I think that's the pivot point. Where is that line on the exigent circumstances? And our position would be that that line -- that it's got to be serious, it's got to be imminent, it's got to be an ongoing situation, something where somebody is either going to get seriously injured, evidence is going to be destroyed, somebody is going to flee.
05-502 +++$+++ 42483 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, was there anything in the facts that a reasonable officer would know from looking in the window to suggest that these -- the adults were not -- did not have the intention of inflicting some sort of serious injury on this young man that they were restraining?
05-502 +++$+++ 42484 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Based upon the officer's testimony at the suppression hearing, Your Honor, it would be that did they not have a serious intention to harm him is the fact that, one, there was nothing showing that they were actually doing anything more than restraining them, that juvenile. There's nothing in the record that shows that they were beating on him, that they were molesting him, or you know --
05-502 +++$+++ 42485 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They had -- did they have any reason to know why they were holding him?
05-502 +++$+++ 42486 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would say that they would, Justice Alito, and this is why. You know, all that they were saying was they were trying to get the -- the juvenile to calm down. They were trying to get him to settle down. This was a situation where the officer testified that -- at the suppression hearing, that there was alcohol involved, that there was a minor. Those types of situations don't demonstrate the fact that this was an ongoing violent situation. Again -- and then further, the officers were called out for a party. They weren't called out for a fight in progress or -- or some type of physical altercation. They were called out because somebody had a loud disturbance going on. And those facts in my mind's eye don't rise to the level and would show the officer -- especially when the officer is standing outside the home watching this event, that there's nothing that -- that would rise to the level of entering the home under the exigent circumstances.
05-502 +++$+++ 42487 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The Utah Supreme Court seemed to be puzzled by your failure to raise the Utah protection against the -- the counterpart to the Fourth Amendment. They seemed to suggest that their own constitution afforded greater protection to the privacy of the home. Was there a reason why you argued only the U.S. Constitution and not the State constitution?
05-502 +++$+++ 42488 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, I was not the trial counsel below or at the appellate court, so I cannot determine what his matter was or what -- what his basis was for that decision. And it -- then it would appear that you're correct in the fact that the Utah Supreme Court is concerned upon that issue. But the fact is that it seems to have been briefed under the Fourth Amendment, has come up under the Fourth Amendment issues, and so that's what we're -- we're looking at. And even though a State, obviously, can give more protections to its citizens under a State constitution, the Fourth Amendment is still a -- if you will, a baseline requirement, and it still applies to Federal criminal courts.
05-502 +++$+++ 42489 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ May I ask? I don't think the charges are in the record. At least I missed them. They were charged with -- what are the charges and how -- what were the penalty for what the defendants were exposed to? There's been no trial. They -- they suppressed the evidence. I suppose the proceedings were dismissed, were they?
05-502 +++$+++ 42490 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the proceedings have been dismissed against my clients. That is correct. And to answer the Court's question, the charges that they were facing was intoxication -- no. I'm sorry. Disorderly conduct, intoxication, and contributing to the delinquency of a minor.
05-502 +++$+++ 42491 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ What are the penalties for those charges?
05-502 +++$+++ 42492 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Worst case scenario, Your Honor, they could be charged with up to 6 months in the county jail, each one consecutive to each other.
05-502 +++$+++ 42493 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ That's the major matter we're resolving today.
05-502 +++$+++ 42494 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-502 +++$+++ 42495 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is the actual evidence that was suppressed? And to what extent is that evidence that wasn't available just from looking in through the door?
05-502 +++$+++ 42496 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, the evidence was -- that was suppressed was everything that the officer or officers saw once they entered the home and/or heard once they entered the home, basically anything that they obtained once they entered the home. The answer to Your Honor's --
05-502 +++$+++ 42497 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Couldn't they have gotten all -- wouldn't he have been able to testify to all of that without even entering the home?
05-502 +++$+++ 42498 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They could have, Your Honor. However, they -- they did not. The prosecutor at the time didn't proceed under that issue. I'm not aware of why he did, but what we have, though, is obviously that -- that may have happened. And as the Court addressed previously, there may have been then an issue related to the curtilage which would have had to have been addressed or discussed.
05-502 +++$+++ 42499 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ Yes, but among the evidence they did have were the two -- two teenagers are drinking beer in the backyard. So they pretty clearly had the alcohol -- they could have gotten that in evidence.
05-502 +++$+++ 42500 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could have, Your Honor, but I don't know why it did not except for the fact that it could have been built into the curtilage --
05-502 +++$+++ 42501 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ None +++$+++ RESPONDENT +++$+++ This wasn't kind of constructed as a test case, by any chance, was it?
05-502 +++$+++ 42502 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it was not, Your Honor. Not at all. But --
05-502 +++$+++ 42503 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, not by you.
05-502 +++$+++ 42504 +++$+++ TRUE +++$+++ MR. STUDEBAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it was not, Your Honor. That's correct. What we have, Your Honors, is a situation where under the exigent circumstances, it did not rise to the level which would require the -- the officers to enter the home without getting a warrant. And in the alternative, if they look at emergency aid, to enter the home under the emergency aid doctrine, which would be the equivalent in our opinion to a special needs assessment, then we have to look at probable cause. We have to look at their intent to enter because there's no probable cause to enter if they're performing that caretaking role to protect people. Obviously, the ultimate concern in -- in any type of situation is somebody's sanctity of their home. It becomes a weighing situation where trial courts are -- are being charged to weigh the evidence, weigh the credibility of the people who testify, and then also take into account the constitutional protections which the parties are awarded. And we believe that based upon the facts and the evidence that were -- was presented, that the three different Utah courts that heard this matter were appropriate in their -- in their suppression decisions. Thank you.
05-502 +++$+++ 42505 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Gray, you have 6 minutes remaining.
05-502 +++$+++ 42507 +++$+++ FALSE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Just a matter of clarification initially. Disorderly conduct is a class C misdemeanor, punishable by up to 90 days in jail under the -- how it was charged here. Also intoxication is a class C misdemeanor, and contributing to the delinquency of a minor is a class B misdemeanor, punishable by up to 6 months in jail. So that's -- that's what -- but the officers -- and again, this case isn't about what they were ultimately charged with. It's whether or not they had a reasonable basis to believe that immediate intervention was necessary.
05-502 +++$+++ 42508 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Don't you think the evidence that was available without going in the house would have supported all those charges?
05-502 +++$+++ 42509 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not the intoxication. The intoxication has to be --
05-502 +++$+++ 42510 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ But two teenagers in the backyard were intoxicated.
05-502 +++$+++ 42511 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the juveniles. But the defendants in this case were the adults inside the home.
05-502 +++$+++ 42512 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Oh, they charge that the adults were intoxicated.
05-502 +++$+++ 42513 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-502 +++$+++ 42514 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ Well, that's a serious crime in Utah I guess. (Laughter.)
05-502 +++$+++ 42515 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We anticipated that comment actually. (Laughter.)
05-502 +++$+++ 42516 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And --
05-502 +++$+++ 42517 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ None +++$+++ PETITIONER +++$+++ And what's your response? (Laughter.)
05-502 +++$+++ 42518 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Normally -- normally intoxication -- we think of it as -- as public intoxication, and -- and that's where it's usually prosecuted and where we find it. But intoxication that can become an offense where it disturbs others outside of the home, and that's what happened here.
05-502 +++$+++ 42519 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Counsel, you have -- you have two questions presented. The second is whether this was sufficiently -- sufficiently exigent to fall under the exigent circumstances. But the first was whether the test should turn on the officer's subjective motivation. I haven't heard much about that this morning. How is that presented on these facts?
05-502 +++$+++ 42520 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the court created two different tests. The Utah court created two different tests. And under the one test, it examined whether or not the officers were primarily motivated by a desire to arrest or search for evidence. Now, the court, the Utah Supreme Court, concluded that they did -- that they were -- their motives were primarily law enforcement motives because they did not render aid. And this Court has repeatedly held that an officer's subjective motives play no part in the objective reasonableness test, and it should not do so here. Justice Ginsburg, you indicated that there was no -- no suggestion of domestic violence. The Utah Supreme Court actually acknowledged that where violence is seen in a home between adults and, for example, a younger person, that there would be reason to believe that domestic violence is possibly present. And that's what -- now, the court refused to look at that because there was no finding that the inhabitants or the -- those involved were actually cohabitants. Of course, this Court has never required that officers have a certainty of the situation, only a reasonable belief, and they clearly have that. And in any event, whether or not it's domestic violence or some other type of violence, it's something that I believe this Court in Mincey recognized, that officers can and -- and probably should -- maybe they didn't go that far, but it would be our position that officers should intervene in the face of violence, and that's what the officers did here.
05-502 +++$+++ 42521 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ My point was simply that this was not a 911 call from a distressed spouse. This was a neighbor saying they're keeping me up at night, so that the -- the police response was to the noise, not to the violence.
05-502 +++$+++ 42522 +++$+++ TRUE +++$+++ MR. GRAY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The initial response was clearly to the noise, but once the officers arrived, it became apparent that there was violence ongoing in the house and that's how the officers proceeded. If there are no further questions, we would ask the Court to reverse the decision of the Utah Supreme Court. Thank you.
05-502 +++$+++ 42523 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
05-5224 +++$+++ 42527 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument first today in Davis v. Washington. Mr. Fisher.
05-5224 +++$+++ 42529 +++$+++ FALSE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Michelle McCottry's statements here were testimonial for the simple reason that she knowingly told a governmental agent associated with law enforcement that someone had committed a crime. Prosecutions based on such ex parte statements in place of live testimony strike at the very heart of the evil the Confrontation Clause is designed to prevent: trials on the basis of out-of-court accusations. Indeed, the trial here really can't be described as anything other than inquisitorial in nature. The sole proof that Mr. Davis was at Ms. McCottry's house and assaulted her that day was the 4-minute, tape-recorded 911 police incident interview that the State played at Mr. Davis' trial and that it itself described as Ms. McCottry's testimony on the day this happened.
05-5224 +++$+++ 42530 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Counsel, when you say --
05-5224 +++$+++ 42531 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How does the fact that it's sole proof mean that it's testimonial?
05-5224 +++$+++ 42532 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It --
05-5224 +++$+++ 42533 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I -- it -- it adds to the general appeal of your case I -- I suppose, but what does that have to do with whether or not it's testimonial?
05-5224 +++$+++ 42534 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It doesn't -- it doesn't answer one way or another whether it's testimonial. What it does and what I'm trying to do for this Court is, first, draw back the lens for a moment and look at the kind of trial that we end up with when statements of the -- like fresh accusations in this case, are able to be used in place of live testimony.
05-5224 +++$+++ 42535 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you did use the word inquisitorial, and there's one large difference, it seems. This is not a magistrate judge or a police officer coming to a person for an interview. This is initiated by the caller, by the victim, and it's initially a cry for help.
05-5224 +++$+++ 42536 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Let -- let me address that question in two parts. The first part you've mentioned, Justice Ginsburg, is whether it matters that the -- that the operator is not a police officer, and we submit no.
05-5224 +++$+++ 42537 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, I didn't say that.
05-5224 +++$+++ 42538 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry.
05-5224 +++$+++ 42539 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I said that the call was initiated by the victim. It wasn't a -- a police officer coming to interview her.
05-5224 +++$+++ 42540 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I see. Well, we don't believe, under the proper conception of the Confrontation Clause, it matters who the accusatory statement is initiated by. Certainly we believe the Confrontation Clause should apply if Ms. McCottry had simply walked out of her house and walked down the street to the police station and voluntarily walked into the sheriff's office and said, I want to report what Mr. Davis just did. What we -- what we suggest here today is there's no difference if she simply calls on the telephone to a 911 operator, which the State itself in its brief calls a conduit to the police, and so when the -- when the police and when the State have set up a system for people to report calls more expeditiously -- I'm sorry -- report crimes more expeditiously, we don't think the answer is any different.
05-5224 +++$+++ 42541 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're splitting up two things that I think go together. That is, this is not just a call. This is a cry for help.
05-5224 +++$+++ 42542 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there -- in -- in a sense, of course, Ms. McCottry is seeking help at the same time she's reporting a crime, but the -- the mere fact that the two are intertwined does not take us outside the Confrontation Clause. Of course, in the Indiana case that you're going to hear, you're going to hear the same thing, that the person is asking for help in the same way. So when somebody makes a call, which we might call a mixed motive or a dual purpose call, the question that we think this Court should ask is whether -- whether that's the kind of a statement, first of all, that historically would have been viewed as implicating the Confrontation Clause. And if you look at the hue -- the old hue and cry practice that we've referred to in our briefs, Sir Matthew Hale in his treatise explains that when somebody went and got the local constable, what they were doing is they were seeking help, first and foremost, to apprehend a felon, and more than that, they were also reporting the crime in the first instance.
05-5224 +++$+++ 42543 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is it your argument that any statement made to law enforcement is testimonial?
05-5224 +++$+++ 42544 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you certainly don't have to go that far in this case, Your Honor, but -- but we believe --
05-5224 +++$+++ 42545 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought that's what you said in your argument when you started off.
05-5224 +++$+++ 42546 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly any statement describing criminal activity to a law enforcement officer would be testimonial.
05-5224 +++$+++ 42547 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you started out by saying that the purpose of the Confrontation Clause was to keep out the accusations made out of court, but I would have thought that was the purpose of the hearsay rule. And if that's the purpose of the hearsay rule, how does the Confrontation Clause differ?
05-5224 +++$+++ 42548 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The purpose of the hearsay rule, Justice Breyer, is to police the reliability of out-of-court statements. What this Court said in Crawford is the Confrontation Clause is something much different. It regulates the manner of taking testimony in criminal trials.
05-5224 +++$+++ 42549 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Ah, so it's not the purpose of the Confrontation Clause to keep out out-of-court accusations. Only some, and which, and what's the rule?
05-5224 +++$+++ 42550 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we believe the rule is, is that any accusatory statement to a law enforcement officer or to an agent of the law -- of law enforcement --
05-5224 +++$+++ 42551 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I know you do believe that, but I want to know why in terms of the purposes of not the hearsay --
05-5224 +++$+++ 42552 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the --
05-5224 +++$+++ 42553 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- rather the confrontation.
05-5224 +++$+++ 42554 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the history of the confrontation right, going back even prior to the framer, was to bring the accuser and the accused face to face so that the accuser made his or her accusation in the presence of the accused and subject to cross examination. And the very heart of the Confrontation Clause, which this Court has said itself over and over again is to require the accuser to -- to deliver the accusation in court, and so accusatory statements, those that say he did it, this is what happened, this is what I saw, are different than ordinary hearsay. And -- and I -- to take an example from -- that we talked about in the Crawford argument, Justice Breyer, when somebody says pass the -- pass the pewter urn from the mantle, that's where Bob keeps the drugs, that's the kind of a statement that is very different than pointing the finger at somebody to a law enforcement agent.
05-5224 +++$+++ 42555 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose I point the finger in an affidavit, and I just send the affidavit, you know. I -- I don't want to get involved. I'm in a foreign country. I sign my name. I even do it under oath, and I send it right to the judge that's trying the case, not to a law enforcement officer, to the judge. You don't think the Confrontation Clause would cover that?
05-5224 +++$+++ 42556 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Justice Scalia, I --
05-5224 +++$+++ 42557 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So your -- your thesis that it applies to just accusatory statements to a law enforcement officer has to be expanded a little.
05-5224 +++$+++ 42558 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does, and what I'm giving you is a -- a rule that I think is the kernel, the heart of the confrontation right. You don't have to say much more than that if it's --
05-5224 +++$+++ 42559 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, what about -- what if you -- what if somebody runs out of the -- the house? There are two people standing in the yard, a law enforcement officer and the next-door neighbor. She yells at the next-door neighbor, he's trying to kill me, and then he comes out. Is that covered by your rule? It's not to a law enforcement officer. It's to the next-door neighbor, but the law enforcement officer overhears it.
05-5224 +++$+++ 42560 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think statements that law enforcement officer merely overhear may not be testimonial, and one of the reasons for that is this Court's Bourjaily decision, which it cited with approval in Crawford, is if somebody make -- if somebody makes statements that tend out -- that turn out to be incriminating in a criminal case, the mere fact that they're overheard by law enforcement officers or even an undercover officer eliciting the statement is in a different scenario, Mr. Chief Justice, than somebody making a statement to law enforcement or even -- and I want to make sure I understand your hypothetical. If the person realized that a police officer was standing there and hearing what she was telling her neighbor, we may then have a testimonial situation. But in this case what we have is not simply a blurting out or a cry for help. In fact, Ms. McCottry never asked for help. She said she didn't need an aid car. What we have are a series of 26 questions that the 911 operator asked Ms. McCottry that established every element of the crime the court -- I'm sorry -- that the State ultimately proved.
05-5224 +++$+++ 42561 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What was she calling 911 for if she didn't want help?
05-5224 +++$+++ 42562 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-5224 +++$+++ 42563 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, she -- she wanted something from 911. What did she -- what did she want? Did she want the police to come over and arrest her husband? Was that -- or --
05-5224 +++$+++ 42564 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's a fair inference, Justice Scalia. Of course, we don't know because she was never -- she's never herself submitted to cross examination. But there are mandatory arrest laws in the State of Washington. She had a no-contact order against Mr. Davis, both of which a reasonable person would understand that a call for 911 would be tantamount to a call for arrest.
05-5224 +++$+++ 42565 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You said -- you said we don't know, but you -- that's slightly in conflict with what you said earlier. They asked 26 questions. How long was this telephone conversation between the 911 operator and the victim?
05-5224 +++$+++ 42566 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's about 4 minutes, Justice Ginsburg. And it's not -- what we submit is -- of course, we've given you in the joint appendix the structured protocol that the 911 operator was following in this case, and we submit that it's not mere happenstance that the 911 call was able to establish every element of the crime, right down to Mr. Davis' birth date that the prosecutor referred to in her closing argument that the 911 operator elicited from Ms. McCottry. And, indeed, the only question --
05-5224 +++$+++ 42567 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I thought that was -- I thought that was to determine if there were outstanding orders and warrants against the individual.
05-5224 +++$+++ 42568 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It may be, and that may be another example, Mr. Chief Justice, of a -- of a --
05-5224 +++$+++ 42569 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that's related -- that's related to sending people to prevent crime as opposed to gathering evidence to be used to convict.
05-5224 +++$+++ 42570 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't want to dispute that 911 operators in this situation, just like responding officers, are gathering information for dual purposes. They may well be trying to resolve an ongoing threat of a felon at large. At the same time, of course, all of the information and training manuals that we've provided to you in the reply brief make it clear that from the initial contact with the alleged victim, they are gathering evidence all the while. And in fact, the only thing you can think of -- at least, I can't think of a single question that a prosecutor might have asked at a trial that the 911 operator didn't ask here. The only questions that really immediately come to mind are ones that might have been asked in cross examination. For example --
05-5224 +++$+++ 42571 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, what if the only question -- what if a 911 caller says nothing more than, in a very excited way, someone is attacking me, send a police officer right away to make the person stop attacking me? Is that testimonial?
05-5224 +++$+++ 42572 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To the extent that the person is saying someone is attacking me, that kernel may -- may well be testimonial, Justice Alito. However, if somebody calls 911 and says, please send help to 911 Main -- or 3312 Main Street, that may well not be testimonial. And that -- a mere cry for help -- and this goes to Justice Ginsburg's question as well. A simple cry for help may -- may not be testimonial.
05-5224 +++$+++ 42573 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But a simple cry for help that doesn't say I'm being battered may not elicit an immediate response on the part of the police. This kind of call, I need help now, and the information that comes with it is likely to be given priority attention as this very call was.
05-5224 +++$+++ 42574 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's a fair inference, but the -- the priority attention, in terms of going and apprehending Mr. Davis, is exactly what triggers criminal justice system and exactly what makes the kind of a statement, the one that the -- one that the Confrontation Clause should care about.
05-5224 +++$+++ 42575 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you have any --
05-5224 +++$+++ 42576 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, they're not sending someone -- they're not sending someone to apprehend Mr. Davis. They're sending someone to prevent him from attacking his wife.
05-5224 +++$+++ 42577 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure it's easy to separate one from the other, Mr. Chief Justice. The way that they are doing that is by arresting him. They have a mandatory arrest law in Washington that says that the way that the police must respond to a call like this is to arrest --
05-5224 +++$+++ 42578 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask this question? I -- I guess in an awful lot of these cases there's a mixed motive: protection and enforcement. Is it your view that whenever there's a mixed motive, it becomes inadmissible?
05-5224 +++$+++ 42579 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Stevens. It's our view that you really ought not be looking or focusing on the police officer motive or on the governmental agent's motive for the very reason that you start to get into these knotty questions of what exactly were they trying to accomplish. And we believe a better -- a better default than -- if you can't simply answer it by looking at history and precedent, is to look more towards the declarant's reasonable expectation. And that's what this Court does in the Fifth Amendment when it --
05-5224 +++$+++ 42580 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, in doing that, do you distinguish, for example, between the -- the expectation that lies behind a merely excited utterance, on the one hand, and the expectation or lack of expectation that would qualify -- that would be the case in a -- in a true res gestae statement in the very strict sense? So that, you know, if -- if the attack had occurred 30 minutes beforehand and -- and the victim is saying on the telephone to the police, Adrian is trying to kill me, that would be -- that -- that wouldn't -- would not be admissible, I take it, on -- on your view under the Confrontation Clause. And yet, if in the course of the 911 call, Adrian was battering the -- the -- you know, the victim over the head with something and she blurted out the same statement, he's trying to kill me, would the -- would the latter be admissible in your case --
05-5224 +++$+++ 42581 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The latter --
05-5224 +++$+++ 42582 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- under your theory?
05-5224 +++$+++ 42583 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry.
05-5224 +++$+++ 42584 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm sorry. I misspoke. On your theory.
05-5224 +++$+++ 42585 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The latter is a very close case, Justice Souter. I think you're right insofar as it -- it can be important to distinguish between a modern-day excited utterance and what would have been considered a res gestae type statement at common law. Certainly if you take away the 911 call from your hypothetical and she says, please don't hurt me, Adrian, that may well be the kind of a statement that would be inside the res gestae. Once somebody picks up the phone to call 911, that, by my reading of the historical cases, turns it into a report or a narrative.
05-5224 +++$+++ 42586 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So that the answer to my question is there would be no distinction between the merely excited utterance 30 seconds later and the utterance in the course of in -- in my hypo.
05-5224 +++$+++ 42587 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We believe that as long as it is making a report to a third party, there ought not be a distinction. Now, of course, you don't have to wrestle with that in this case because --
05-5224 +++$+++ 42588 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You say according to your reading of the cases, but you really don't have a case like this. You -- you have a case where, after the fact, the -- the victim went to a constable or to some other official to report the event, and perhaps to seek help against the person who -- but you don't have anything where really, in the course -- in the course of the attack or -- or while the person is still at least under threat, a -- a constable is -- is called, do you?
05-5224 +++$+++ 42589 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia, of course, we didn't have telephone technology, so --
05-5224 +++$+++ 42590 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You could have -- you could have somebody walking by -- a policeman walking by outside.
05-5224 +++$+++ 42591 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-5224 +++$+++ 42592 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the victim shouting, you know, please, somebody help me, Harry is beating me. You don't have a case like that. So -- so I don't know why we should flop one side rather than the other on this -- on this case that -- that doesn't seem covered by -- by the old jurisprudence. Why should we go your way on it and say that it -- it falls within the prohibition rather than say it falls outside the prohibition?
05-5224 +++$+++ 42593 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, for two reasons, Justice Scalia. One is we do have the hue and cry scenario that we've talked about.
05-5224 +++$+++ 42594 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but that's not this case.
05-5224 +++$+++ 42595 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And we think the fair --
05-5224 +++$+++ 42596 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That --
05-5224 +++$+++ 42597 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's not exactly on all fours with this case, but we think the fair inference, when you read the treatises and the reasons why those kinds of statements were kept out, is that if they simply -- if the police or their agents were able to get the statement just a little bit sooner, the answer would have been the same. And we do have cases, Justice Scalia, where people made fresh accusations or cry-outs to private parties to -- to another -- to a witness who wasn't even associated with law enforcement, and we have a whole section of our brief pointing out that for decades after the founding, even those kinds of statements were kept out of evidence in criminal trials for the reason --
05-5224 +++$+++ 42598 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Because of the -- because of the Confrontation Clause you think?
05-5224 +++$+++ 42599 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I think it's a fair inference, Justice Scalia, from reading the historical precedent and the treatises that describe it. They -- they describe these as, in -- in a sense, second-class testimony. They say the problem with statements like this, if they're made even seconds after the event in place, is that they're -- at that point they're nothing more than a narrative and require us to give credit to a statement -- and this is the words the treatise writers used to use -- that was not given under the ordinary tests for determining the accuracy of testimony. And when they used the word like testimony and they talk about the usual tests and the customary way of testing out-of-court statements, I think the fair inference is they're referring to the right to confrontation. Perhaps another way to think about this is to take a step back and say, what if we decide that statements like this are not testimonial? The practical -- the practical impact of that is not simply that these statements won't -- will come in, but that prosecutors and -- prosecutors, Federal and State government, will have no incentive whatsoever to ever bring 911 callers into court. It -- it is -- across State hearsay law across the country, these are deemed excited utterances. So if this Court were to say --
05-5224 +++$+++ 42600 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's not -- that's not true at all. I mean, if -- if the -- the witness may be a good witness and compelling on the stand, they may have every incentive to bring her in in person. This is only addressed to the situations where the witness is unwilling or unable to testify.
05-5224 +++$+++ 42601 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, I think you got to the heart of the matter when you said that if it's a good witness, the prosecutor will put them on. The flip side of that is that if the witness isn't so good, the prosecutor would have every incentive at least not to put them on the stand. Why would somebody put on a stand -- put somebody on a stand that doesn't seem perhaps credible or maybe subject to impeachment when they have, in a sense, testimony in a sealed tape recorder already?
05-5224 +++$+++ 42602 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I assume the defendant could summon that -- that witness if -- if that witness' location was known. No?
05-5224 +++$+++ 42603 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the defendant --
05-5224 +++$+++ 42604 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And could find out from the prosecution where that witness was, I assume.
05-5224 +++$+++ 42605 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The defendant might be able to do that. But, of course, that would -- treating the case this way would collapse the confrontation right into the Compulsory Process Clause. The confrontation right is a right not to be able to bring witnesses into court. It's to be confronted with the witnesses against --
05-5224 +++$+++ 42606 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But Justice Scalia's question raises the -- the point. The reason these witnesses are not there is not because of anything that the government has done. It's -- it's the concern they have, the particular domestic abuse situation. It's not the government that is keeping these witnesses out. They're not relying on the 911 calls as a matter of preference.
05-5224 +++$+++ 42607 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Mr. Chief Justice, I think your assumption may not be entirely correct. There's a -- there's a portion from, for example, the San Diego prosecutor's office decided, and I believe in the NACDL brief, that says oftentimes they do prefer to -- to leave the witness off the stand because they have a better case just using the -- the excited utterance type statements.
05-5224 +++$+++ 42608 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is there -- is there -- suppose the defendant procured the witness' absence by a threat.
05-5224 +++$+++ 42609 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-5224 +++$+++ 42610 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then the 911 statement could come in. Right?
05-5224 +++$+++ 42611 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. That's right. And perhaps -- and this gets back to the Chief Justice's question as well. It helps maybe to separate these kinds of cases into three categories. We first have the category that the prosecution would prefer not to put the person on the stand. We think there the Confrontation Clause ought to require them to do so. We -- we next have the category where the defendant, as you say, procures the witness' absence. We don't dispute that in that scenario the forfeiture doctrine kicks in, which this Court reaffirmed in Crawford. We don't have any forfeiture question in this case. And then we have perhaps the gray area, where a witness goes missing through no fault of anybody's, and this Court has said over and over again that there the confrontation right puts the onus onto the prosecution.
05-5224 +++$+++ 42612 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But those are -- those are three neat legal categories. The practical reality, is it not so, is that many women in these situations are scared to death of what will happen to them or they're so insecure financially that they think they have to put up with the battering? So your neat legal categories really don't conform to what happens in people's lives who are in this situation.
05-5224 +++$+++ 42613 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, I don't want to be insensitive to -- to witnesses in this situation. Of course, reluctant witnesses is nothing new, but -- but in domestic violence, it's an acute problem. However, we believe the proper way to deal with that situation is by this Court developing its forfeiture doctrine. The Sixth Amendment applies across the board to all criminal cases, Justice Ginsburg, and we've cited, for example, in the appendix to our reply brief about 30 cases from the last couple years that have been handled in a victimless fashion like this that are not domestic violence cases --
05-5224 +++$+++ 42614 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How would you do that? How would you do that forfeiture?
05-5224 +++$+++ 42615 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Pardon me?
05-5224 +++$+++ 42616 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How would you do that? I'm interested in that because I thought it sounded good. Then I thought about it. I thought to have forfeiture, you'd have to show that this defendant, in fact, forced the wife not to testify. It's a crime to do that. So you'd have to prove another crime against the defendant in order to prove the first crime. And I thought perhaps that doctrine is not very practical. You tell me why it is.
05-5224 +++$+++ 42617 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's already what happens under the Federal Rules of Evidence and under the evidence of many States, that there is a rule of forfeiture by wrongdoing. And so --
05-5224 +++$+++ 42618 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I understand that. My point is that to prove the wrongdoing would probably be even harder than to prove the original crime. All we know is the wife isn't there.
05-5224 +++$+++ 42619 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not --
05-5224 +++$+++ 42620 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And we suspect that she's afraid of her husband. He may have offered to cut off financial aid, said goodbye, no money, or he may have done worse. I'm just saying you're telling us that because the prosecution can prove that in court and only then will it be able to introduce the testimony given beforehand by the missing wife.
05-5224 +++$+++ 42621 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think --
05-5224 +++$+++ 42622 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How does it work?
05-5224 +++$+++ 42623 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think we have -- Justice Breyer, like in lots of other scenarios, you have a pretrial hearing, and at that pretrial hearing, of course, the rules of evidence don't strictly apply the way they would in the guilt phase. So in this very case, if you look at the joint appendix, when -- when on the eve of trial Ms. McCottry is no longer going to show up for trial, the prosecutor says, I want to subpoena the jail records and I want to talk to the victim's advocate to find out whether she's been intimidated or kept away. So the prosecutor herself tells the court how she's going to look for this evidence. If she had found anything, presumably she would have presented it and she could have presented it that way. And it's --
05-5224 +++$+++ 42624 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Maybe we should just -- just suspend the Confrontation Clause in spousal abuse cases instead of designing the entire application of the Confrontation Clause everywhere on the basis of what seems to be a special problem in spousal abuse cases.
05-5224 +++$+++ 42625 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, of course, Justice Scalia, the Sixth Amendment says all criminal prosecutions --
05-5224 +++$+++ 42626 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I understand.
05-5224 +++$+++ 42627 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and domestic violence cases are criminal prosecutions. So we don't think --
05-5224 +++$+++ 42628 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And I suppose we could also have said that the Sixth Amendment, like some other amendments, doesn't apply to State prosecutions --
05-5224 +++$+++ 42629 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, but we've --
05-5224 +++$+++ 42630 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- or the Confrontation Clause portion of it, anyway --
05-5224 +++$+++ 42631 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-5224 +++$+++ 42632 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- which would exempt spousal abuse cases, by and large, until we -- until we enact a Federal spousal abuse statute, which -- which may well occur. It seems to me there -- there are better ways to -- to solve this problem than to design the whole Confrontation Clause jurisprudence on the basis of what happens in spousal abuse cases.
05-5224 +++$+++ 42633 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's a fair comment. And let -- let me say there are two -- there are many ways that you can do that, Justice Scalia, and two of them were readily available to the State in this case. One is even when a witness goes missing or is unwilling to testify in a hard case, there may well be other ways to prove the case. Here, the caller said --
05-5224 +++$+++ 42634 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ This is true, but the reason I thought spousal abuse cases are relevant --
05-5224 +++$+++ 42635 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Pardon me?
05-5224 +++$+++ 42636 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ A reason I thought they were relevant is just what you're about to address. They're evidentiary of the problem that exists when you bring something within the Confrontation Clause. Prior to Crawford, even though it was within the clause, if it fell within a well-recognized exception to the hearsay rule, it could come in. So you could bring in co-conspirators before the conspiracy ended. You could bring in, for sure, excited utterances. You could bring in all kinds of things that now, no matter how reliable, you have to keep them out.
05-5224 +++$+++ 42637 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Justice Breyer, but --
05-5224 +++$+++ 42638 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And so that is a problem that you have to address in respect to drawing a fairly narrow line, and I want to know what that narrow line is with spousal abuse and other cases in mind.
05-5224 +++$+++ 42639 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Let me give you two ways this case, if -- if we assume the State's version of events is correct, could have easily been proved. One is that the caller said that a man named Mike was at her house during the entire event. When the police showed up at her house some 5 minutes later, they never even got Mike's last name. And, of course, Justice Breyer, the reason why is because they were probably thinking of the Roberts framework and that they wouldn't need this witness, but good old-fashioned police work would have presumably found a witness that witnessed the whole event that they could have put on the stand. The second thing the State could have done in this case is they could have filed the case in a way that they obtained a preliminary hearing. If what the State says is correct that Ms. McCottry was cooperating up until the last minute, that's a classic scenario where, by way of having a preliminary hearing and subjecting her to cross examination at the preliminary hearing, they could have preserved her testimony. This Court in California against Green and Roberts itself said that those kinds of prior pretrial cross examination scenarios are good enough to satisfy the Confrontation Clause. And if the Court has no further questions, I'll reserve the remainder of my time.
05-5224 +++$+++ 42640 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Fisher. Mr. Whisman.
05-5224 +++$+++ 42642 +++$+++ FALSE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, may it please the Court: In this 911 call, the operator asked a short series of questions, nearly all phrased in the present tense. Each question was objectively and reasonably necessary to respond to an apparent emergency.
05-5224 +++$+++ 42643 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Like what is his name? I mean, that's the present tense. Not what was his name or what will be his name. What is his name? You think that's the present tense. So that shows that this is all seeking help.
05-5224 +++$+++ 42644 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, a number of other questions, Justice Scalia, were answered -- were asked in the present -- present tense too. And, in fact, the operator, shortly after asking the first questions, one of the first things that she said was help was on the way and then continued with a series of questions. But as the interview continued, of course, every single question and every single answer was captured on the tape for a jury or a judge to later hear. The call ended after the operator knew that Ms. McCottry had her door locked, that Davis had left, and that the officer's arrival was imminent. We ask -- respectfully ask this Court, under these circumstances, to hold that the use of this powerful evidence, without live testimony from the declarant, was constitutionally permissible.
05-5224 +++$+++ 42645 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You know, powerful is part of the problem. This -- this kind of telephone call evidence is even more powerful than -- than the kind of a signed affidavit that used to be banned because it was testimonial. I mean, to hear -- to hear the voice on the phone makes it, if it is -- if it is impermissible under the Confrontation Clause, it makes it even a more damaging violation than the kind of violation that -- that occurred in -- in Sir Walter Raleigh's case, for example.
05-5224 +++$+++ 42646 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'd respectfully disagree, Your Honor, although I'd -- I'd first note that -- that I think the if clause in Your Honor's question is telling. And I think if that -- that doesn't necessarily define whether it's testimonial or not. But to address --
05-5224 +++$+++ 42647 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would you -- would you rather put the woman on -- if you had a choice, would you rather put the woman on the stand?
05-5224 +++$+++ 42648 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Your Honor, and -- and --
05-5224 +++$+++ 42649 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Rather than have her -- her voice on the telephone call --
05-5224 +++$+++ 42650 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if I had to --
05-5224 +++$+++ 42651 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- when she is -- she is in -- in -- supposedly in great fear of -- of her husband and -- and -- I'm sure you'd rather have the telephone call.
05-5224 +++$+++ 42652 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you're asking me which would I chose --
05-5224 +++$+++ 42653 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ As a prosecutor.
05-5224 +++$+++ 42654 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if I had to chose, that would be a difficult choice, obviously, but our plan, of course, was to --
05-5224 +++$+++ 42655 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I think it would be an easy choice.
05-5224 +++$+++ 42656 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our -- our plan was to do both, and it wasn't until the eve of trial that we learned that the complaining witness, Ms. McCottry, wasn't going to appear. And I think that the circumstances --
05-5224 +++$+++ 42657 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Did -- did you subpoena her at that point?
05-5224 +++$+++ 42658 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ She was already subpoenaed, Your Honor, and the prosecutor brought in the detective. The detective attempt -- made numerous attempts to get a hold of her, checked her last known address. The person there didn't know where she was. We had one phone number for her. She wasn't responding to the telephone calls pursuant to our calls to that number. So we made a number of efforts that are documented in the record to get her to court, once we learned that -- that she didn't appear. Now, at that point --
05-5224 +++$+++ 42659 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Counsel, your -- your position is not that anything that she says or anything anyone says in a 911 call is -- is consistent with the Confrontation Clause.
05-5224 +++$+++ 42660 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Your Honor. It's conceivable that you could have statements made in the course of a 911 call that wouldn't be testimonial.
05-5224 +++$+++ 42661 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So what is your -- what is your test? We have your friend saying any accusatory statement made to a law enforcement officer. What -- what is your proposal?
05-5224 +++$+++ 42662 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our focus, Your Honor, is, as I think this Court focused in Crawford on whether or not the government's practice resembles the inquisitorial abuses. In other words, did you have -- in the modern sense, did you have a structured police interrogation such that the interrogator or the questioner might have in some way shaped the witness' testimony.
05-5224 +++$+++ 42663 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Fisher tells us that's exactly what happens, that the 911 operator goes through the elements of the crime in a very structured way.
05-5224 +++$+++ 42664 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I think if you listen to the tape itself, you'll conclude that's not the case. I mean, in fact, each question that the -- that the operator asked was reasonably and objectively designed to facilitate a quick response and to solve the emergency that was apparent.
05-5224 +++$+++ 42665 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Let's -- let's not overread Crawford. Crawford didn't say that the only thing the Confrontation Clause was directed at was the kind of abuse that -- that occurred in the case of Sir Walter Raleigh. It said that that was the principal abuse at which it was directed. I doubt very much, unless you think otherwise, that if somebody, without provocation from the police, wrote up an affidavit, signed the affidavit, and gave it to the police, I doubt whether that would have been allowed under the Confrontation Clause. Do you think it would have?
05-5224 +++$+++ 42666 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it may not have, Your Honor, but the -- under the test that we're proposing, the -- we're placing the focus on situations like this, situations roughly analogous -- situations that are distinguishable from what you had with Sylvia Crawford. And I think that although -- although our test may not cover every conceivable hypothetical, I think that, as this Court recognized in Crawford, defining testimonial was going to be a -- a task that was going to take some time, and --
05-5224 +++$+++ 42667 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Your test wouldn't cover the example I just gave.
05-5224 +++$+++ 42668 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, right -- that's right, Your Honor. Our test would not --
05-5224 +++$+++ 42669 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And you think that that should be admissible in a criminal trial?
05-5224 +++$+++ 42670 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't. I think it --
05-5224 +++$+++ 42671 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well --
05-5224 +++$+++ 42672 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that should be inadmissible, but it should be inadmissible because of the rules of hearsay. And I think in most States in the Union, it would be inadmissible. I can't think of a hearsay example that would permit it.
05-5224 +++$+++ 42673 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Oh, now the person disappears afterwards, is unavailable.
05-5224 +++$+++ 42674 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Fair enough. But it's not an excited utterance. It's not a present sense impression. I can't imagine a hearsay exception that would admit it, which is really what brings us back to the core of our theory, too, and that is that -- that under the Confrontation Clause, as defined in Crawford, we now have an absolute rule covering a finite --
05-5224 +++$+++ 42675 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I can't imagine that that wouldn't have been covered by the Confrontation Clause --
05-5224 +++$+++ 42676 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-5224 +++$+++ 42677 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- such -- such an obvious violation of your right to confront your accuser, and just because it was presented to the police without -- without an initial interrogation by the police, I don't think that would have made any difference at common law.
05-5224 +++$+++ 42678 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and, Your Honor, it may be that at some point the Court expands the definition in -- in Crawford of testimonial -- formalized testimonial materials to include something like that, but I think that in situations where you have an encounter between police and citizen and statements result, then I think it's fair to focus on the interaction and whether or not the -- the person was trying to shape the testimony.
05-5224 +++$+++ 42679 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I agree that that's the extreme, but you're urging us to -- to adopt a test that embraces only the extreme and does not embrace the hypothetical I just gave you. And you -- you can accept that hypothetical without saying that you lose this case, but it seems to me the test you're proposing is -- is really quite extreme.
05-5224 +++$+++ 42680 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, as I say, the test we're proposing I think would cover the majority of cases. The hypothetical that Your Honor posed was -- is -- is itself I think somewhat unusual. We -- we do not get statements of that nature. We do not see them being offered into evidence. And as I say, I think that if -- if we saw cases like that, if we saw statements that were admitted, there may be other ways under the clause that the Court could interpret the Confrontation Clause to exclude them. I'm not arguing for the admissibility of that evidence. Quite frankly, I've never in my life even seen a piece of evidence like that offered. All I'm saying is that I don't believe it falls under this narrow definition of the Confrontation Clause that you outlined in the Crawford case.
05-5224 +++$+++ 42681 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why don't you incorporate what the Solicitor General has suggested, that is, you draw the line at urgent emergency statements that are calling for -- for immediate help?
05-5224 +++$+++ 42682 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We certainly don't have any objections to the Solicitor General's approach, Your Honor, and -- and in fact, in some ways, because we're analyzing a case like this that arose in an emergency circumstance, I think that it's clear that -- that statements that are made in those circumstances, just by their very nature, aren't going to be testimonial. People don't testify in an emergency. We chose not to take that approach doctrinally just because we didn't think it was as closely tied to the approach the Court took in Crawford. But I think it's certainly consistent with the strategy outlined by the Solicitor General.
05-5224 +++$+++ 42683 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What -- what do we do about the -- about the fact, which I don't think you -- you deny and -- and the -- the other side points out in both of these cases that, in fact, police departments have their responders to the 911 number intentionally ask a series of questions that gives them all the information they need to conduct a prosecution? In other words, they are using 911 as a -- as a prosecutorial device.
05-5224 +++$+++ 42684 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that overstates the empirical evidence, Your Honor. I think that if you look at the training manual in this case that we attached to our briefing in the Supreme Court and refer to our briefing, if you look at the way that this interview was conducted, it's clear that these operators are not, as a routine matter, using the 911 process to develop evidence. In fact, in this case you'll note that -- that after the short 4-minute period, the operator didn't say, well, stay on the line with me a little bit more and let's talk about the background situation here. And she didn't do that because her training, as documented in the training materials from the Valley Communications Center, said don't get caught up in the background information that led to this event because it can distract you in getting the information that needs to be transferred to the police department right away. And I think that that is a perfectly reasonable and really the -- the better approach for a 911 operator. So even though --
05-5224 +++$+++ 42685 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Did -- did she wait until after the 4 minutes to call the police, or did she -- she have the police on the way after the first minute?
05-5224 +++$+++ 42686 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It sounds as though that she dispatched them immediately, Your Honor, because --
05-5224 +++$+++ 42687 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ She -- she's just typed that out on the computer or something like that?
05-5224 +++$+++ 42688 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. And, in fact, there are some times when you can hear all three voices on the 911 tape, not in this instance. But as I said, almost immediately after the call began, she said, help is on the way, that's because you can dispatch but still obtain information, for example, the date of birth. And as Mr. Chief Justice indicated, date of birth of the defendant and name, et cetera are extremely important so that in those 4 minutes that it -- coincidentally, it was also 4 minutes before the police officer arrived -- they can be determining whether or not the defendant has criminal history. They can determine whether or not, from their records available to them in their police car, whether or not the defendant has a history of assaults against police officers, whether or not he has a -- a history of carrying weapons, et cetera. So that's all information that the operators are trained to -- to obtain and then to transfer to the police as soon as possible.
05-5224 +++$+++ 42689 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And she's -- she's in ongoing -- the operator is in ongoing contact with the people she's -- the operator has dispatched. Right?
05-5224 +++$+++ 42690 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, Your Honor, and that's why -- that's why ordinarily the operator doesn't terminate the call until the police have arrived on the scene. Here it appears that she terminated the call somewhat contemporaneously with their arrival. She -- she indicates that the police are there and they'll look around for him quickly and then come and check her.
05-5224 +++$+++ 42691 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What do you have to say about the failure to inquire about Mike?
05-5224 +++$+++ 42692 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I -- I don't think that's as significant as Petitioner suggests. If you look at the record, in the pretrial testimony of Officer Jones, he asked Ms. McCottry, upon arrival, repeatedly did she know who this other person was, and her answer was she didn't know the person's last name. The record isn't fully developed on that point, but it sounds like that -- that Mike was a friend of the defendant's. And we know for sure that Mike left with the defendant. I think it's reasonable to infer he also came with the defendant, but we didn't have any particular contact or handle on this person Mike. And in fact, if it was a friend of the defendant, you'd think that the Compulsory Process Clause would have given the defendant some basis on which to bring him before the court. I don't think that that includes any of the -- that -- that doesn't somehow shift the burden on the defendant in the same way it might if were to force him to bring the declarant in. If he knew Mike, he -- he certainly had the ability to bring Mike in. So I don't think it's as significant as Petitioner suggests. Your Honor, I -- I do want to return for just one moment to this notion that we don't want witnesses to testify and that we are satisfied with proceeding just on -- on the basis of other pieces of evidence. At least in my practice and at least in our county, that's definitely not true. In fact, even if we have a recanting witness in, for example, the domestic violence abuse scenario -- situation, it is often just as effective for us to go ahead and put -- put the witness up on the stand, let her tell whatever story she's presently telling, and then play the 911 -- 911 tape also in conjunction with the testimony of the officers who can describe what -- what condition she was in when they arrived. And I think when you juxtapose the 911 tape, even with the recantation from the witness, frankly sometimes the jurors find it even more illuminating than -- than if she didn't appear. So we do not spend our time trying to put together cases purposely without the victim testifying. It just so happens that sometimes, at the last minute like this case, we're not able to bring the person in. But I think --
05-5224 +++$+++ 42693 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How -- how often does this happen? In other words, are we being asked to, in effect, on your part to -- to recognize or to derive a special rule for cases which, at least numerically, are sports?
05-5224 +++$+++ 42694 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I do -- I cannot answer in a percentage terms how often this happens. But, you know, that you have a reluctant witness in domestic violence cases is a -- is a not unusual occurrence in any event. But I don't think that --
05-5224 +++$+++ 42695 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But -- but I'm talking about the witness who is not merely reluctant, but simply doesn't show up and you make reasonable efforts and you -- and you can't find the witness. How often does that happen?
05-5224 +++$+++ 42696 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As I say, I'm -- I'm hard- pressed to give a -- a percentage number. But it's not, as I said --
05-5224 +++$+++ 42697 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Has it happened to you before?
05-5224 +++$+++ 42698 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe it has.
05-5224 +++$+++ 42699 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you don't know how many times.
05-5224 +++$+++ 42700 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I can't say, no, Your Honor. I can't say. I think it's maybe happened once to me, but --
05-5224 +++$+++ 42701 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So we're not -- I take it we're not in a position whereby if we hold against you, we are, in effect, nullifying the possibility of enforcing domestic violence laws by criminal process.
05-5224 +++$+++ 42702 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I think the other factor that has to be considered, Your Honor, is as soon -- as soon as defendants realize that merely pressuring the victim into not appearing will put an end to the case, then it gives the defendant the increased incentive to put the pressure on the victim and cases that otherwise would have pled won't. So I think it will have --
05-5224 +++$+++ 42703 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Disappearing. Not just not appearing. Disappearing.
05-5224 +++$+++ 42704 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I --
05-5224 +++$+++ 42705 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, counsel.
05-5224 +++$+++ 42706 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Your Honor.
05-5224 +++$+++ 42707 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Dreeben.
05-5224 +++$+++ 42709 +++$+++ FALSE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: A panic-stricken call for help, which can occur on a 911 call, is not a form of bearing witness within the meaning of the Confrontation Clause that activates the rule in Crawford. Emergency statements, statements that are made to 911 operators and to officers at the scene investigating an urgent need to protect a person's safety, do not resemble the classic forms of testimonial evidence that were generated under the Marian statutes and the civil law practice that formed the impetus for the Confrontation Clause. In three significant respects, statements that are made in emergency questioning differ from the kind of testimony that prompted the rule in Crawford and the confrontation right that it rests on. First of all, in the classic examples of someone giving testimony, which this Court noted means a solemn declaration or affirmation for the purpose of proving a fact, people who are on 911 calls or seeking help at the scene of an -- an urgent situation are not making statements for the purpose of providing evidence in a case. They are making statements for the purpose of obtaining help, and that distinguishes them significantly from the kinds of subtle desires to shape and influence their statements that occur --
05-5224 +++$+++ 42710 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, maybe. I mean, it's easy to imagine a 911 call that doesn't fit your description. You know, the person is trying to get in the door. The call is -- you know, this is the fourth time. I keep calling and I've talked to you about this. You don't do anything. He's got to be locked up so this will stop. I mean, that's not -- that sounds more like testimony than an immediate call for help.
05-5224 +++$+++ 42711 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, we would distinguish between those kinds of 911 calls where someone is seeking protection from an imminent or present threat to their safety and a 911 call that's making a more generalized report of criminal activity or a desire for safety and maybe speaking in a narrative form about the past.
05-5224 +++$+++ 42712 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, the husband had left the house here, as I understand it, when this -- when this call occurred.
05-5224 +++$+++ 42713 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Actually, Justice --
05-5224 +++$+++ 42714 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ She -- she wanted the man arrested, but he was no longer in the house, was he?
05-5224 +++$+++ 42715 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Actually, Justice Scalia, I believe when the call begins, the caller is speaking in the present tense and says, he's here jumping on me again. And the 911 operator then begins to elicit information to find out what is the level of the threat to her safety and what actions need to be taken and says, okay, I've got help started. Help is on the way. Now, tell me what his name is, and she -- the -- the caller tells what the name is of the defendant and, at that point, says, he's running now. And so, it's only after critical information is imparted at the beginning of the call that the caller says that he's leaving. But even --
05-5224 +++$+++ 42716 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And then what -- what's your position if she says he beat me 2 minutes ago, he's left, and he's running down the block?
05-5224 +++$+++ 42717 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think in that situation, Justice Kennedy, there is still an imminent threatened potential of a recurrence. The person could come back. There's no protection on the scene. The reason that she's calling 911 and not a friend or -- or a health care provider is that she believes she needs protection right then. And the -- the nature of an emergency is such that it exerts a pressure both on the person who is seeking help, as well as the official responder from the government, to solve that urgent problem. Any evidentiary benefit that may come from that is really an incidental --
05-5224 +++$+++ 42718 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, suppose -- suppose it's a thief, and she said he's taken the diamond necklace and he's running -- and he's running away. We know he's not going to come back.
05-5224 +++$+++ 42719 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that situation would not fall within the emergency rule that the Government is arguing for today. What we're arguing for is a rule that deals when people's safety is --
05-5224 +++$+++ 42720 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So the -- the jewelry store owner who reports to the -- the police is fleeing on a 911, that -- that's not -- that's not admissible under your view?
05-5224 +++$+++ 42721 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I'm not saying that, Justice Kennedy. I'm saying that the Court isn't confronted in this case with a situation in which threats not to the person but to property or the need to obtain or try to apprehend a fleeing felon are present.
05-5224 +++$+++ 42722 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, what -- what about the -- my hypothetical?
05-5224 +++$+++ 42723 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We would submit that that is not testimonial within the meaning of Crawford for many of the same reasons that -- that are present in this case. But it is a different case from this.
05-5224 +++$+++ 42724 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What do you mean by seeking help? I mean, it seems to me you're saying seeking help means trying to get somebody arrested, trying to get somebody who has harmed you arrested. In this case, he was gone out of the house. She had gone and locked the door before she came back to the phone and gave most of this testimony.
05-5224 +++$+++ 42725 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-5224 +++$+++ 42726 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And -- and in the -- in the jeweler case, the guy is running down the street. What is the jeweler -- is the jeweler really worried about the guy turning around and coming back to rob some more? He wants the man arrested.
05-5224 +++$+++ 42727 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The urgency certainly in -- in the jewelry thief hypothetical does deal with apprehending the person who has just stolen the goods. And that's why I say that it falls outside of the rule that the Government is arguing for today. But, Justice Scalia, I think --
05-5224 +++$+++ 42728 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But I'm concerned about the rule you're arguing today because it -- it seems to me there's a good case for allowing the -- the statement by the jewelry store operator.
05-5224 +++$+++ 42729 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think there is a good --
05-5224 +++$+++ 42730 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And -- and I want to know what your position is so that you don't come back next week and say, well, now we want the jewelry store --
05-5224 +++$+++ 42731 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm not going to say that we wouldn't, depending on how the Court analyzes this case, argue for a submission that that's not --
05-5224 +++$+++ 42732 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ We'd rather you analyze the case now and then we'll analyze it later. (Laughter.)
05-5224 +++$+++ 42733 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What the Court needs to analyze today is whether an emergency statement where somebody is seeking protection and there is a threat of imminent recurrence of the very violence that has triggered the call is testimony. And it's not testimony because the sort of risks of government shaping and the declarant focus on providing evidence for use in a criminal case are not present, and the information has, as Justice Scalia pointed out, a unique probative value that's very different from the kind of submission of an affidavit or submitting to a civil law deposition that prompted the confrontation right. The Framers were thinking about things that we all would recognize as testimony, being deposed, submitting an affidavit, appearing before a -- a magistrate in a pretrial proceeding, and they used the word witness in the Confrontation Clause not only to refer to the kinds of statements that were covered, but in connection with knowledge that the same word appears in the Fifth Amendment and in the Sixth Amendment Compulsory Process Clause, where in all of those contexts, its most natural application is to the formal acquisition of evidence.
05-5224 +++$+++ 42734 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What do you say in that respect about the blue brief's reference to 17th century cases, the hue and the cry where someone went out and told the sheriff, help, I'm being beaten up, and that that evidence wasn't admissible?
05-5224 +++$+++ 42735 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think what's really striking, Justice Breyer, is that there is no 17th century case law that reflects that. There's really a virtual, complete absence on the other side of this case of an affirmative argument supported by decided cases that says that evidence of that character was even known to the Framers, let alone excluded. If you look closely at their constable cases, which is the closest cases that they -- they submit, one of them is a report from the Old Bailey online source which contains transcripts of criminal trials in -- in England, and one of them, the Radbourne case, is right around the time of the framing, and there's a little line in the transcript where the constable says, well, I bent down and I asked the victim something and then the judge says, well, don't say that. There's no evidence that that was regarded as a -- a legal ruling under confrontation principles. There's no evidence that the Framers were aware of the Radbourne Old Bailey report, and there's additional statutory basis in the treason statute, which was applicable there, which said that all evidence had to be given face to face. So that's their primary authority. Their next authority --
05-5224 +++$+++ 42736 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it's -- it's -- it may be not a lot, but it's something. You don't have anything to the contrary.
05-5224 +++$+++ 42737 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What we have --
05-5224 +++$+++ 42738 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You don't have anything which shows that these hue and cry reports were admitted, and there were a lot of them. They -- they were done regularly.
05-5224 +++$+++ 42739 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The hue and cry reports, Justice Scalia, as I think your earlier questioning suggested, do not necessarily involve the kind of emergency situation what -- that we have here where a person is reaching out from an ongoing present criminal act against them and seeking help. And the fact that we have very little evidence at all of how 17th century British law handled this is really, I think, persuasive evidence that the Court should not deem the confrontation right as a response to some sort of abuses in this area.
05-5224 +++$+++ 42740 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I would say that a hue and cry report is not the same as a woman being beaten and -- and picking up the phone while the crime is in progress. But I think it's quite similar to the -- the jewelry hypothetical that Justice Kennedy gave you which you're unwilling to say is -- is not covered by the -- is covered by the Confrontation Clause, and I think it's quite similar to a woman, where the husband has left and she's locked the door and she wants the husband arrested. I think it's quite similar to that. But for the telephone, it's -- it's someone who's been the victim of a crime who goes to a public official, as soon as possible, and says, I've been -- I've been subject to a crime. I want to report the crime and have the person arrested. I think it's very similar.
05-5224 +++$+++ 42741 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, first of all, there is evidence that the hue and cry practice existed. There is not evidence about how hue and cry reports were viewed as a matter of evidence law. It is very difficult to transpose into 17th and 18th century English practice what we are dealing with now, in part because the system of public prosecutions that we have today where an official prosecutor representing the State carries the ball in a criminal case did not exist. The accuser had to appear in court as the private prosecutor. If the accuser did not appear, there was no prosecution, and these prosecutions were simply dismissed because there was no one official on the scene to carry the ball. So the -- the speculation that's required requires a number of inferential leaps that Petitioners have to make in order to draw an analogy. And at the same time, there really is an intuitive difference between the kinds of statements that people make in emergencies and the kind of core testimonial statements that we know prompted the confrontation right, the Sir Walter Raleigh case involving affidavits and letters, the Marian practice under which testimony was formally taken in the calm of a magistrate's rooming house rather than in the immediate aftermath or time when a crime was actually ongoing.
05-5224 +++$+++ 42742 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Dreeben, you say focus on the emergency nature. Very little of what took place in the 911 call is emergency. He's beating me. He's jumping on me. Yes. What's his name? I mean, it's not like they'll send help if his name is Joe but they won't if it's Mike. It doesn't matter. Which direction is he running? That's not related to the emergency nature of the -- of the call.
05-5224 +++$+++ 42743 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is, Mr. Chief Justice, in the sense that it's information that's needed to respond to and resolve the imminent threat to this woman's safety, which would certainly occur if the individual decided to come back and finish what he'd started. And if a law enforcement authority set up its 911 calls so as not to gather adequate information and this individual had come back and actually beaten or killed the victim, it would certainly be regarded as an inadequate response to the emergency situation of an ongoing violent attack. And so for that reason, the rule that we're describing here for the Court would deal with not only the present emergency but also its imminent, threatened recurrence.
05-5224 +++$+++ 42744 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, rather than build that into the law, it might be wiser to deal with Justice Kennedy's case, in whatever system we come up with, explaining it. So what is your full explanation of the diamond necklace?
05-5224 +++$+++ 42745 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My -- my view on that is that the kinds of statements that are made in the immediate report of a crime are really in the form of excited utterances that are much different from the kind of dispassionate testimony that occurs after the fact that prompted the confrontation right. Now, the Court could accept that line and say that jewelry thief reports are not testimony within the meaning of the Confrontation Clause, or it could disagree and say that no, when there's not the immediate threatened, imminent potential for a recurrence of the violence, then we're going to treat that as closer to simply a report of a crime and treat it as testimonial. Court could go either way on that without touching the core of what's at issue today, which is namely emergency situations that pose a threat to the safety of the person who's making the call or who's encountered by a law enforcement officer on the scene in the immediate aftermath of an attack.
05-5224 +++$+++ 42746 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And you wouldn't say that every question asked in that context. Don't we have to do it question by question? I mean, what if one of the questions was, you know, has he beaten you before? How many times before? You know, are you going to allow that in too --
05-5224 +++$+++ 42747 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that --
05-5224 +++$+++ 42748 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- as an excited utterance?
05-5224 +++$+++ 42749 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the more that the -- the questioning begins to delve into a past narrative of past criminal activity, the more there is a reason to think that it serves, in addition to its protection purpose, an evidentiary purpose. I'd hasten to add, Justice Scalia, that that kind of information is very important for the officers to know to gauge the seriousness of the threat, to get the kind of idea of who they are dealing with, and to respond effectively. So it is reasonably necessary for those kinds of questions and that information to be elicited. But I also agree with Your Honor's suggestion that not everything that occurs in a 911 call should be regarded as per se non-testimonial. Not everything that happens at the scene of a crime should be regarded as per se non-testimonial. And naturally, the Court is going to have to apply a certain degree of analysis to the actual questions and answers that are given. But if you look at the protocol in this case for the 911 call, if you look at the kinds of questions that were asked and the information that was given, it is all reasonably necessary to resolve an emergency by a person who has really called in a state of extreme stress. Thank you.
05-5224 +++$+++ 42750 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Dreeben. Mr. Fisher, you have 4 minutes remaining.
05-5224 +++$+++ 42752 +++$+++ FALSE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. Let me say a word about the record and then two things about the emergency exception that we've been talking about. First, in the record it's always been accepted in this case that Mr. Davis had left the house when the 911 call started. In the joint appendix, page 117, that's what the Washington Supreme Court said, and at page 30 of the evidentiary hearing in the trial court, the prosecutor submitted the case that way as well. Now let me address the history here because it's important. And Justice Scalia is exactly right. There's not a single case historically where a statement to a law enforcement agent accusing someone of a crime was admitted in a criminal case. We're not aware of one.
05-5224 +++$+++ 42753 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That may be hearsay. That may all be hearsay.
05-5224 +++$+++ 42754 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it is what it is, Justice Breyer. The -- the oldest case that is in the briefs on the other side is White v. Illinois in 1992. So for some 500 years before that. And -- and perhaps when we have to draw an inference, we do have -- to a certain degree we acknowledge the dog that doesn't bark. We have evidence that was out there and simply wasn't used. Let's look at the history of the Marian statutes. And I'm -- and I want to refer the Court specifically to page 101 of Sir Matthew Hale's treatise. He talks about the -- both the problem with the hue and cry and then the reason we have the Marian statutes. The reason we have the Marian statutes was because for pretrial bail and committal hearings, the courts were not prepared to simply go on the initial reports. They wanted a formal examination of the witness to use at even the pretrial hearing, to detain the person pending trial. And Sir Matthew Hale at page 101 says the problem with the fresh reports the hue and cry, is that -- is that they're not under oath. They don't -- they don't even answer all the questions that we would want answered. So what the United States is asking you to accept is that the kind of evidence that the Framers would not have even been prepared to allow at a pretrial bail hearing -- rather, they wanted to have something more formal -- they would now accept to be used in the trial itself. And what we think is that this turns everything on its head. The reason the Marian statutes were abused is because, of course, in continental Europe that was an accepted form of evidence, and so there was some reason to believe these formal statements could be used. No one ever suggested the hue and cry could be used. Finally, let me say a word about police incentives. If you accept the rule that the -- that the United States and -- and the State is asking you to accept, think about the incentives you put on 911 operators. They're not supposed to ask too many questions. They're not supposed to get too much information. The same would go for the responding officer. They don't want to ask too many questions, structured questions, make sure who did it, make sure they have the details because then somehow these statements become testimonial. What our rule says is it frees the 911 operators, it frees the police officers to do what they're supposed to do, which is immediately start responding and both help people and start gathering evidence from the moment that a crime is reported. And that's what we think the Confrontation Clause is all about. It's not -- it's about the way the case is proved at trial. The Confrontation Clause -- as opposed to other emergency doctrines this Court has in the Fourth Amendment area, for example, the Confrontation Clause has zero to say about the way police officers do their jobs or the way the 911 operators do their jobs. If they go out and collect structured affidavits under oath, if the 911 operator put the caller under oath, there's nothing wrong with that. If the 911 operator says, I want to be sure I have this right, describe to me exactly what he looks like, and tell me more about him, that's what we would want somebody to do. And we shouldn't put a perverse incentive for these first responders that, all of a sudden, once they start gathering useful information for the criminal justice system, that some sort of new rule triggers. All we're saying is that these are the kinds of statements that were -- that the Framers would have cared about and that they did care about, and that nowadays if the State or other prosecutors want to use them, they should be duty-bound to bring the witness into court as well to submit the witness to cross examination. If there are no further questions, I'll submit the case.
05-5224 +++$+++ 42755 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I have one last question. How do you think Professor Wigmore would have decided this case? (Laughter.)
05-5224 +++$+++ 42756 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this Court noticed that Professor Wigmore had the view that the Confrontation Clause applied only to witnesses that actually took the stand. So he would have thought the Confrontation Clause didn't apply at all. But he would have acknowledged to you -- and this is interesting from his treatise -- that these were testimonial statements. He said as soon as somebody starts -- as soon as in a criminal trial we use a statement narrating a past event, it's testimonial. However, Professor Wigmore just didn't quite have the Confrontation Clause right.
05-5224 +++$+++ 42757 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
05-547 +++$+++ 42761 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first this morning in Lopez versus Gonzales and Toledo-Flores versus United States. Mr. Long.
05-547 +++$+++ 42763 +++$+++ FALSE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: A drug-trafficking crime is defined in 18 U.S. Code Section 924(c) as any felony punishable under the Controlled Substances Act or two other Federal statutes. "Punishable" is a key term. If that word is omitted, the remaining phrase, "any felony under the Controlled Substances Act," clearly refers to felony violations of the Controlled Substances Act. The parties agree that "punishable" means "subject to criminal sanctions." So, a "drug-trafficking crime," under 924(c), is conduct that is subject to being punished under the Controlled Substances Act. State felonies are not, themselves, punishable under the Controlled Substances Act. It is not a Federal crime to violate State law. The defendant's conduct may be punishable under both Federal and State law, but a Official State felony is not a felony punishable under the Controlled Substances Act.
05-547 +++$+++ 42764 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, do you agree that if there were a State conviction for an offense that would have been punishable under the Federal law, their both being felonies, that enhancement can apply, in that instance, and that that does meet the definition?
05-547 +++$+++ 42765 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Kennedy. Our position is, if the conduct would violate a felony provision of the Controlled Substances Act or one of the other two Federal statutes, it then is a drug-trafficking crime under 18 U.S. Code Section 924(c), and, therefore, it is an aggravated felony. But there are three additional textual indications, in addition to simply the "felony punishable" language, that misdemeanor offenses under the Controlled Substances Act are not drug-trafficking crimes under Section 924(c). The first one is, there are other provisions of Section 924 -- (e), (g), and (k) -- where Congress actually used very similar language. It referred to conduct punishable under the Controlled Substances Act or the two other statutes, or offenses under the Controlled Substances Act or the two other Federal statutes. But then, it added an express reference to State offenses, so -- Official
05-547 +++$+++ 42766 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where --
05-547 +++$+++ 42767 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the implication is that when Congress meant to include State offenses, it said so.
05-547 +++$+++ 42768 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where are those sections?
05-547 +++$+++ 42769 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- you can find them; they're in the appendix to Lopez's blue brief, Justice Scalia --
05-547 +++$+++ 42770 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
05-547 +++$+++ 42771 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and the provisions on (e), (g), and (k) -- 924 begins on page 3A of the appendix, and (e) begins on 5A, and you can pick up -- (g) is on 6A, (k) is on 7A.
05-547 +++$+++ 42772 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What are the sections -- (b)?
05-547 +++$+++ 42773 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They're subsections (e), (g), and (k).
05-547 +++$+++ 42774 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right.
05-547 +++$+++ 42775 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that doesn't carry too much weight, though, because the provision that -- I'm looking at (g)(3), "violates any State law relating to any controlled substance," can be broader than what's punishable under the Federal Controlled Substances --
05-547 +++$+++ 42776 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It --
05-547 +++$+++ 42777 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- Act.
05-547 +++$+++ 42778 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is a bit broader, Mr. Chief Justice, but if you look at all of these provisions, the implication is clearly that Congress was referring to Official State law when it meant to include State law. I mean, the -- if you looked at (e), for example, there it's a parallel construction; it's not broader. I think perhaps the government would say, "Well, we're talking about offenses." That's a little different from a felony, but "offenses" is actually a broader term. I'll mention an additional statute, which was not in the appendix -- 18 U.S. Code Section 3559(c)(2)(H). This provision -- it's a similar provision; it defines a "serious drug offense" as an offense that is punishable under the specific sections of the Controlled Substances Act, or an offense under State law that, had the offense been prosecuted in a court of the United States, would have been punishable under the CSA. An additional textual indication is, it's agreed -- and this Court has already said, in Gonzales against the United States, that a drug-trafficking crime under 924(c), under the criminal statute, must be a Federal crime. 924(c)(1)(A) refers to a crime that may be prosecuted in a court of the United States, and that clearly refers to a Federal crime. The definition of drug-trafficking crime, by its term, says it is for purposes of 924(c), so there is no reason why Congress would have wanted to include State felonies in a definition that applies to a Federal criminal provision Official that all concede applies only to Federal predicate offenses. And --
05-547 +++$+++ 42779 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In --
05-547 +++$+++ 42780 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the Government's interpretation would significantly broaden Section 924(c) to include Federal misdemeanors.
05-547 +++$+++ 42781 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In 8 U.S.C. 1101(a)(43)(B), what, in your view, does the first phrase, "illicit trafficking in a controlled substance," add to the reference to a drug-trafficking crime --
05-547 +++$+++ 42782 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice --
05-547 +++$+++ 42783 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- as defined by 924(c)?
05-547 +++$+++ 42784 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Alito, in our view, "illicit trafficking" means any offense that has a trafficking element -- that is, distribution, possession with intent to distribute, manufacture --
05-547 +++$+++ 42785 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But are there any trafficking offenses that would not fall within 924(c) if you define a "trafficking offense" that way?
05-547 +++$+++ 42786 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. They're -- most offenses under the Controlled Substances Act are trafficking offenses. There are a few that are simple possession. There is a date-rape drug that I will not try to pronounce, but it's listed in 21 U.S.C. Section --
05-547 +++$+++ 42787 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, no, there -- Official
05-547 +++$+++ 42788 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- 844.
05-547 +++$+++ 42789 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- are possessory -- there are "mere possession" offenses that are outlawed by 924(c), but is it not the case that any -- if you interpret "trafficking" to mean trafficking in the way the word would be used in ordinary speech -- that any State trafficking offense you can think of would have a corresponding felony violation under the Controlled Substances Act, so that if you read the statute that way, the initial phrase is superfluous?
05-547 +++$+++ 42790 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe the Government has a footnote in their brief where they suggest there are some State trafficking offenses that actually do not have a parallel in Federal law. Soliciting, I think, may be one of them. So, I think there are, in fact, some. And our position, of course, is that by adding illicit trafficking -- any trafficking offense, State or Federal, whether or not it is punishable under the Controlled Substances Act, is an aggravated felony.
05-547 +++$+++ 42791 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let me ask the same question a different way. If -- since 924(c) includes some "mere possession" offenses, and illicit trafficking in a controlled substance includes all violations of 924(c), doesn't that show that the way Congress used "illicit trafficking in a controlled substance" is not in the sense Official in which the term is used in ordinary speech, but's much broader, so that it can include "mere possession" offenses?
05-547 +++$+++ 42792 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- Justice Alito, there is an argument -- it's developed in the brief of the American Bar Association -- that, because illicit trafficking is the general category, that all the aggravated felonies in this category should have a trafficking component; and, therefore, the felonies punishable under the Controlled Substances Act that are "simple possession" offenses should not, in fact, be included. That is not an argument that we have pressed in our brief. We read the phrase to say "illicit trafficking, including any felony punishable under the Controlled Substances Act." So, I would agree with you, to the extent that if it is a felony punishable under the Controlled Substances Act, Congress has said, by definition, that it is included in the category of illicit trafficking.
05-547 +++$+++ 42793 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that's ambiguous. That's perfectly ambiguous. Because, the case of your client, it is a felony, and it is punishable under the Controlled Substances Act.
05-547 +++$+++ 42794 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Breyer, it is a misdemeanor under --
05-547 +++$+++ 42795 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, that's -- Official
05-547 +++$+++ 42796 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the Controlled --
05-547 +++$+++ 42797 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- right. But it is a felony under South Dakota law. And what the statute says -- and that's the Government's argument -- they say "any felony punishable under the Controlled Substances Act." They don't mean, necessarily, any felony punishable as a felony under the Controlled Substances Act.
05-547 +++$+++ 42798 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-547 +++$+++ 42799 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It might mean anything that is a --
05-547 +++$+++ 42800 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
05-547 +++$+++ 42801 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- felony, and --
05-547 +++$+++ 42802 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
05-547 +++$+++ 42803 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- it is also punishable; in which case, you lose. But, in the first case, you win.
05-547 +++$+++ 42804 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, you know --
05-547 +++$+++ 42805 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, what am I supposed to look to, to decide which is --
05-547 +++$+++ 42806 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you could look to the case of Jerome against United States, which is -- which was a unanimous decision of this Court -- in which the Court held that the -- just the phrase "any felony" --
05-547 +++$+++ 42807 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Uh-huh.
05-547 +++$+++ 42808 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in the Federal bankruptcy statute should be interpreted to mean any Federal felony, so -- Official
05-547 +++$+++ 42809 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, but you don't mean that, because you're prepared to concede -- at least I thought you were, until your last argument -- you're prepared to concede that if a person engages in a crime that is punishable as a felony under South Dakota law, and it is also punishable as a felony under Federal law, under 801, et seq, well, that counts.
05-547 +++$+++ 42810 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but, I mean, the Government --
05-547 +++$+++ 42811 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you --
05-547 +++$+++ 42812 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- accuses us --
05-547 +++$+++ 42813 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you concede that --
05-547 +++$+++ 42814 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
05-547 +++$+++ 42815 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- or not?
05-547 +++$+++ 42816 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Government accuses us of making that concession --
05-547 +++$+++ 42817 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, no.
05-547 +++$+++ 42818 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but we --
05-547 +++$+++ 42819 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You --
05-547 +++$+++ 42820 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- really don't.
05-547 +++$+++ 42821 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you say your answer is, you don't make the concession?
05-547 +++$+++ 42822 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We really don't. I mean, we concede that if the -- I mean, 8- -- 924(c), the criminal statute, says nothing about State law. It says nothing about any conviction under Federal or State law. It's simply a Official question of whether the conduct is punishable, capable of being punished, under the Controlled Substances Act --
05-547 +++$+++ 42823 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I thought that --
05-547 +++$+++ 42824 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the Federal statute.
05-547 +++$+++ 42825 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- was the concession you made in response to my --
05-547 +++$+++ 42826 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-547 +++$+++ 42827 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- question.
05-547 +++$+++ 42828 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- yes. I -- but I just want to be careful about the language in which we make --
05-547 +++$+++ 42829 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you --
05-547 +++$+++ 42830 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- this concession --
05-547 +++$+++ 42831 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- make the concession, as I understand it, because it's a Federal felony, not because it's a State felony --
05-547 +++$+++ 42832 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-547 +++$+++ 42833 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- isn't that right? Yes.
05-547 +++$+++ 42834 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it --
05-547 +++$+++ 42835 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Precisely.
05-547 +++$+++ 42836 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it -- if this is an ambiguous statute, do you -- what mileage do you get from Barrett? There is certainly an argument that what was -- Congress was trying to do was to codify that practice of saying, "If there is analogous felony -- if there is analogous crime under State law, that should be included." Official And that made good sense.
05-547 +++$+++ 42837 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. If it's ambiguous, and you look to the legislative history, I think we get considerable mileage from Barrett. The Congress was pretty clear that what it was doing was codifying Barrett. The Barrett approach, which was then followed by the BIA for more than a decade, was that they would count State drug crimes, but only if they were felonies under the Federal statutes, under the Controlled Substances Act. So, I think we get considerable mileage out of that.
05-547 +++$+++ 42838 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What --
05-547 +++$+++ 42839 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You've --
05-547 +++$+++ 42840 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- about the --
05-547 +++$+++ 42841 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- answered Justice Breyer by citing the Jerome case. After Jerome, we decided United States vs. Gonzales, having to do with the consecutive or concurrent sentencing terms. And it -- are those two cases in some tension? Gonzales didn't mention Jerome. And I noticed that none of the briefs mentioned it either. Is there some tension in the cases? And, if so, is this a case where, when we write an opinion, whatever the outcome, we should talk about that? And, if that's so, what should we say?
05-547 +++$+++ 42842 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't see any tension. Gonzales was just about consecutive versus concurrent sentences Official under State versus Federal law. I mean, the Court has applied that principle --
05-547 +++$+++ 42843 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it does --
05-547 +++$+++ 42844 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For example, in Taylor --
05-547 +++$+++ 42845 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- it does seem to limit the broad statement in Jerome, without mentioning Jerome.
05-547 +++$+++ 42846 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but -- I mean, with respect, Justice Kennedy, I don't see how it limits it. And there have been other cases -- Taylor is an example -- where the Court adopted a single definition of "burglary" for purposes of 924(e). That applies the Jerome principle. I mean, it's a principle that has been applied in a number of this Court's cases.
05-547 +++$+++ 42847 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But has it ever been applied in a -- to a statute that specifically says that the term "aggravated felony" applies to an offense described in this paragraph, whether in violation of Federal or State law?
05-547 +++$+++ 42848 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-547 +++$+++ 42849 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That would seem to me to be a very express legislative repudiation of the Jerome --
05-547 +++$+++ 42850 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-547 +++$+++ 42851 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- principle.
05-547 +++$+++ 42852 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- when we get to that language, Mr. Chief Justice -- and I do think it helps the analysis to Official first decide, What is the definition of a "drug-trafficking crime" under 924(c), the criminal statute? Once you've decided that -- now, when you move back to the INA, there is this language. The term "aggravated felony" applies to an offense described in 101(a)(43), whether in violation of Federal or State law, or the law of a foreign country. Now, we think that's pretty straightforward. It has to be an offense described. So, the simple example is money laundering. It -- the offense described in 18 U.S. Code Section 1956, "money laundering," is an aggravated felony. So, a violation of State law or of foreign law can be an aggravated felony, but only if it is the offense described in 1956. If States or a foreign government has a broader definition of "money laundering," that can't count, because it's not the offense described. And when you turn to a drug-trafficking crime, the way that offense is described in 101(A)(43) is -- Congress picked up, in its entirety and without any modification, the definition of "drug-trafficking crime" in 924(c), a felony punishable under the Controlled Substances Act. So, if you agree that, in the criminal statute, that means a felony violation of the Controlled Substances Act, the offense described is the felonies in the Controlled Substances Act, not the felonies in the misdemeanors. And State -- if State law wants to call a Official -- something that's a misdemeanor under Federal law a felony, they can do that, but they can't expand the offense described. The offense described, the way Congress did that, is --
05-547 +++$+++ 42853 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But are you saying it would also include State trafficking offense, because it's described in the word "trafficking"?
05-547 +++$+++ 42854 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. I'm focusing on the definition of "drug-trafficking crime." It -- also, there's the illicit trafficking piece of this. And, I should add, any State offense that is illicit trafficking is going to be an aggravated felony. We recognize that. If there are no further questions, I'd like to reserve the balance of my time.
05-547 +++$+++ 42855 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Long. Mr. Crooks, we'll hear now from you.
05-547 +++$+++ 42857 +++$+++ FALSE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: I would first like to address the Government's contention that Mr. Toledo-Flores's appeal is moot. His appeal of his sentence is not moot, primarily because he is still subject to the sentence that is the subject of that appeal. Even though Mr. Toledo-Flores was released Official from prison on April 21st of this year, and deported to Mexico, he's still subject to the supervised-release portion of his sentence, because supervised release is not automatically extinguished by deportation.
05-547 +++$+++ 42858 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there's no supervised release of people outside the United States.
05-547 +++$+++ 42859 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's no supervision of people outside the United States, Mr. Chief Justice, but he is still subject to the jurisdiction of the District Court, and still subject to the conditions of supervised release that are not dependent upon supervision.
05-547 +++$+++ 42860 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, like what?
05-547 +++$+++ 42861 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, for example, he shall not excessively use alcohol, he shall not associate with persons who --
05-547 +++$+++ 42862 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's going to happen to him if he does that?
05-547 +++$+++ 42863 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the District Court learns about it he could be violated -- he could be extradited back from Mexico, and he could face up to a year more in prison.
05-547 +++$+++ 42864 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Has anything like that ever happened before with people subject to supervised release who are then deported? It would be the first time, if the District Court did that, right? Official
05-547 +++$+++ 42865 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There have been instances in the case law where people on supervised release have been extradited back from foreign countries based on violations of their supervised release. But the point is, under the statutory scheme, Mr. Toledo-Flores is still subject to the District Court's jurisdiction. The District Court retains jurisdiction to modify his supervised release, to change the conditions, or to cut the supervised release. If the District Court learns of a violation and a violation warrant is filed within the supervised-release period then the supervised-release period is effectively tolled and the District Court --
05-547 +++$+++ 42866 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And that --
05-547 +++$+++ 42867 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- retains --
05-547 +++$+++ 42868 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that period has how many months to run?
05-547 +++$+++ 42869 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Until April 20th of next year, Your Honor.
05-547 +++$+++ 42870 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you -- you said you rely primarily on that argument -- do you have another argument?
05-547 +++$+++ 42871 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, we do, Your Honor. After April 20th, of course, in accordance with this Court's decisions in Spencer v. Kemna and Lane v. Williams, the Court needs to look for a collateral consequence of the Official then-expired sentence. And, in this case, we point to the possibility that a retrospective reduction in the term of imprisonment -- which, of course, will not give excess prison time back to Mr. Toledo-Flores -- but even to reduce the number of the sentence, on paper, could be a favorable factor for him to get a waiver of inadmissibility, should he ever want to get a nonimmigrant visa in the future to come visit his U.S.-citizen children.
05-547 +++$+++ 42872 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We have a case involving standing which says that -- you know, the doctrine of standing is more than a -- an exercise in the -- in the conceivable. And this seems to me an exercise in the conceivable. Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he's on supervised release in the United States, or is going -- is going to apply -- having been deported from the country for criminal offenses, is going to apply to come back in the -- these are ingenious exercises in the conceivable. This is just not the real world.
05-547 +++$+++ 42873 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, my answer to that, Justice Scalia, is that this Court has never said that an appeal of a sentence may become moot before that sentence is expired. And in cases like Lane v. Williams and Spencer v. Kemna, the sentences were completely expired, and, Official therefore, the Court had to look for collateral consequences of the now-expired sentence. Here, in consequence -- in contrast, Mr. Toledo-Flores is still under the sentence, which is a direct consequence --
05-547 +++$+++ 42874 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That depends on whether you consider the sentence to be effectively expired once he leaves the country, if the sentence is one of supervised release, which is impossible once he leaves the country. Supervision being impossible, supervised release is not a realistic consequence of the prior conviction.
05-547 +++$+++ 42875 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But that argument could be made with respect to a person who is in the United States, who is subject to a term of probation where the only condition is that he not further violate the law. In that --
05-547 +++$+++ 42876 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, no, because --
05-547 +++$+++ 42877 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- instance --
05-547 +++$+++ 42878 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in that -- in that instance, action can be taken against him if he does further violate the law under the terms of probation. The point is that the jurisdiction of the probation office or the District Court doesn't extend to Mexico.
05-547 +++$+++ 42879 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's true. But if we're talking about future violations of the law, it is very often the case that persons who are deported to Mexico do come back, and do have their supervised release -- Official
05-547 +++$+++ 42880 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well --
05-547 +++$+++ 42881 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- revoked.
05-547 +++$+++ 42882 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you don't want to say that your case is not moot because your client is going to violate the law again in the future.
05-547 +++$+++ 42883 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, not at all, Your Honor, but I'm saying that, in the respect that you just talked about for the U.S. citizen, it's not any different, that the court retains jurisdiction to violate the supervised release, and to revoke it, and then to send him back to prison.
05-547 +++$+++ 42884 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but it is different, in the respect that he would first have to violate the law by entering the United States.
05-547 +++$+++ 42885 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is true. But in most cases, that is the only violation of supervised release for which they are later revoked. And, in that respect, it would be no different from a person who violates his probation by driving while intoxicated or committing some other legal violation.
05-547 +++$+++ 42886 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you work in --
05-547 +++$+++ 42887 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ On --
05-547 +++$+++ 42888 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- this area?
05-547 +++$+++ 42889 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ On collateral consequences, do you have -- what is your best authority to say that in -- it would keep this case from being moot? Official
05-547 +++$+++ 42890 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We cited, in our reply brief at page 4, Your Honor, the Hamdi case, United States v. Hamdi, from the Second Circuit, where the Second Circuit found that the possibility of reducing the term of imprisonment, even retrospectively, could have an impact on the ability to get a waiver of inadmissibility in --
05-547 +++$+++ 42891 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because --
05-547 +++$+++ 42892 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the future.
05-547 +++$+++ 42893 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because the length of the sentence counts heavily in the attorney general's assessment, is that --
05-547 +++$+++ 42894 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. In Hamdi, they pointed out that the length of the sentence goes to two of the three factors that are evaluated by Immigration officials -- under a decision called Matter of Heronka -- that are used in evaluating whether a person should be granted a waiver of inadmissibility in the discretion of the attorney general --
05-547 +++$+++ 42895 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you think there's a realistic possibility that this person is going to be readmitted? A realistic possibility?
05-547 +++$+++ 42896 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do not know, Your Honor. He's --
05-547 +++$+++ 42897 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh.
05-547 +++$+++ 42898 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- got U.S. citizen --
05-547 +++$+++ 42899 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you think there's a Official realistic possibility he's going to try to get readmitted, so that he can be subjected to really enforced supervised release?
05-547 +++$+++ 42900 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that there is a possibility that he -- he could qualify for a nonimmigrant visa at some point --
05-547 +++$+++ 42901 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Has he applied for such a visa? Has he expressed any intention to apply?
05-547 +++$+++ 42902 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He has not, Your Honor, but he does have U.S.-citizen --
05-547 +++$+++ 42903 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well --
05-547 +++$+++ 42904 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- children --
05-547 +++$+++ 42905 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- then it's an exercise in the conceivable, it seems to me.
05-547 +++$+++ 42906 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But this Court has never held that a -- it would be unfair to hold that an appeal of a sentence can be moot while that sentence is still in effect, and when it can still have consequences for Mr. Toledo-Flores. And that's what distinguishes this case from all the other cases decided by this Court, is that the sentence itself is the concrete and continuing injury that defeats --
05-547 +++$+++ 42907 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I --
05-547 +++$+++ 42908 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- mootness in this case.
05-547 +++$+++ 42909 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- ask this question? It's -- Official presuming -- supposing we say it's not moot, and you prevail. Could he be resentenced without being present in court?
05-547 +++$+++ 42910 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, he could, Your Honor. We do resentencing in absentia all the time in the Southern District of Texas --
05-547 +++$+++ 42911 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In the Southern --
05-547 +++$+++ 42912 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in circumstances that are similar.
05-547 +++$+++ 42913 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In the -- have you ever heard of, or had, a client -- or heard of a person from Mexico who had been deported because he has been involved in drugs, and the Government wants to bring him back because he may be a witness -- maybe something develops, some other members of the gang are there, they'd like his information?
05-547 +++$+++ 42914 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That does happen occasionally. People are paroled, then, to testify in court proceedings or to cooperate with Federal --
05-547 +++$+++ 42915 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, if --
05-547 +++$+++ 42916 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- or State --
05-547 +++$+++ 42917 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- they pick up some friends of his who are engaged in drugs, the Government might decide to try to get him back.
05-547 +++$+++ 42918 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. Official
05-547 +++$+++ 42919 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is there any indication that that's in the works, or is this just another conceivable thing?
05-547 +++$+++ 42920 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is no indication in the record --
05-547 +++$+++ 42921 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
05-547 +++$+++ 42922 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that that is in the work. I do want to point out that --
05-547 +++$+++ 42923 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it's conceivable, I guess, that people will break their parole. Often it doesn't happen; sometimes it does. Sometimes they want to get him back; sometimes they don't.
05-547 +++$+++ 42924 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's all very true, Justice Breyer. I wanted to point out that, in Campo Serrano, which we've cited in our brief, this Court held that a deported alien's probation term was a continuing criminal sentence that saved the case from mootness. And the Court pointed to the fact that he -- that the deported alien in Campo Serrano could, just like Mr. Toledo-Flores, have his conditional release revoked, and he could be reimprisoned, upon a finding that he had violated his conditions. And we believe that Campo Serrano points very strongly in the direction that this case is not moot. On the merits, I would just like to point out Official that the interpretation that is advanced by the petitioners here promotes the very sort of uniformity that this Court has found desirable in cases like Jerome v. United States and its progeny, including Taylor v. United States, in that the same conduct of conviction will have the same immigration and same Federal sentencing consequences, irrespective of the labels or maximum prison terms affixed by the particular States that set out that conduct. And --
05-547 +++$+++ 42925 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel.
05-547 +++$+++ 42926 +++$+++ TRUE +++$+++ MR. CROOKS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
05-547 +++$+++ 42927 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Kneedler.
05-547 +++$+++ 42929 +++$+++ FALSE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: In order for a State drug offense to be an aggravated felony under Section 1101(a)(43)(B) of the INA, two -- there are two requirements. The underlying conduct must be punishable under the Controlled Substances Act or one of the other specified Federal statutes, and it must be a felony. Because Petitioner's underlying conduct here was punishable under the Controlled Substances Act, and was a felony under State law, they are -- they were properly Official found to have committed aggravated felonies. That conclusion follows, not just from Section 924(c), but, more importantly, by the fact that what is relevant here is, What is the meaning of 1101(a)(43), which is the operative provision, which just happens to incorporate the definition of "drug-trafficking crime" from 924(c)? And there are three features of 1101(a)(43) with --
05-547 +++$+++ 42930 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why don't you say "it just happens"? I mean --
05-547 +++$+++ 42931 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. No. But -- no, but -- yes. No, it's --
05-547 +++$+++ 42932 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- it's there in the statute.
05-547 +++$+++ 42933 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's -- I'm sorry.
05-547 +++$+++ 42934 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's why you're here.
05-547 +++$+++ 42935 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It expressly incorporates it, yes. Yes. But the -- but the operative provision is section 1101(a)(43) of the INA, and there are three features of that that we think reinforce this conclusion. The first is that the consequences of aggravated felony status under the INA turn on whether one is convicted, not whether they have committed the crime, and that's true both with respect to the enhancement of sentences under 1326 and the -- and the immigration consequences. And we think it makes particular sense when you're talking about a conviction to look about how the -- to look at how the Official crime is treated under the jurisdiction of conviction.
05-547 +++$+++ 42936 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought the Government has taken the position -- and as far as I know, all the Courts of Appeals have bought the Government's argument -- that there -- you do not need a conviction --
05-547 +++$+++ 42937 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You do --
05-547 +++$+++ 42938 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that so --
05-547 +++$+++ 42939 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- not need a conviction under Section 924 if you're bringing a prosecution under Section 924(c).
05-547 +++$+++ 42940 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. You don't --
05-547 +++$+++ 42941 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You do not -- you do not need a conviction. But, in order -- the immigration consequences --
05-547 +++$+++ 42942 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but --
05-547 +++$+++ 42943 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- have been --
05-547 +++$+++ 42944 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- but 924(c) is incorporated in 1101(a)(43). It's --
05-547 +++$+++ 42945 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
05-547 +++$+++ 42946 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- incorporated. So, you want us to interpret 924(c) one way for criminal convictions -- a criminal sentence -- that is, you don't need a conviction in order to get the enhancement -- but another way for --
05-547 +++$+++ 42947 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Official
05-547 +++$+++ 42948 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- for the INA?
05-547 +++$+++ 42949 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our point is not that 924(c) requires a conviction when it's in the Immigration Act, it's that the immigration consequences of that incorporation turn on whether someone was convicted of an aggravated felony.
05-547 +++$+++ 42950 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is --
05-547 +++$+++ 42951 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So --
05-547 +++$+++ 42952 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that?
05-547 +++$+++ 42953 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the ground of deportation that refers to "aggravated felony" refers to someone who has been convicted of an aggravated felony. The ineligibility for cancellation of removal turns on whether someone has been convicted of an aggravated felony, and the enhanced penalties under Section 1326 for someone whose illegal reentry, following aggravated felony, is for a conviction for an aggravated felony. So, my point is that, under the INA, the consequences turn on conviction, and it makes sense to look at the jurisdiction of conviction -- here, State law -- to see whether it -- to look at the -- to determine the status of the crime. And since State law determines it to be a felony, that's the --
05-547 +++$+++ 42954 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Kneedler --
05-547 +++$+++ 42955 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- proper place to look. Official
05-547 +++$+++ 42956 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- if there is room for more than one construction of this statute, it seems to me unseemly, in the immigration context, to say that two people who have committed the identical acts, one of them is barred from ever coming back, doesn't have any of the dispensations, and the other does, because of the happenstance of the State in which they were convicted. That kind of disuniformity in an area where the Constitution expressly charges Congress with authority to make uniform laws, it's -- doesn't that uniform-law specification in the Constitution tug in the direction of the interpretation that Mr. Long was --
05-547 +++$+++ 42957 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, we --
05-547 +++$+++ 42958 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- presenting to us?
05-547 +++$+++ 42959 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- we think it does, for several reasons. First, with respect to the constitutional requirement, the uniformity provision applies to uniform rules of naturalization; that is, citizenship. This -- we're not talking about citizenship here, we're talking -- we're talking about the eligibility of aliens to remain in the country. Beyond that, even where the Uniformity Clause applies -- and there's, for example, a parallel Uniformity Clause for bankruptcy -- that's never been interpreted to mean that consequences of certain conduct under State law can have no impact on bankruptcy law, and Official that there can't be a variation. The State-law homestead exemption under the -- under the bankruptcy laws is a good example of that. But, going beyond that, with respect to the issue of uniformity generally, Congress has established uniform standards in Section 1101, either in terms of identifying the conduct in certain instances; in other instances, by identifying the minimum sentence that was actually imposed. In this case, we think, with respect to drug-trafficking crimes, it -- it's imposed a uniform standard, in terms of the length of the sentence; it has to be a felony. That's -- that is uniformity. But the -- to answer your point more directly, it is a principle throughout 1101(a)(43) that one looks to State law, not to -- not to a -- some supposed uniform standard of Federal law. And, for example, if you -- several subparagraphs -- and if you'll -- 1101(a)(43) is set out at page 12(a) of the appendix to our brief -- three subparagraphs -- (j), (q), and (t) -- refer to the sentence that may be imposed for a violation. Well, when you're talking about a State conviction, that's clearly referring to the sentence that may be imposed under State law for a conviction. Four other subparagraphs -- (f), (g), (r), and (s) -- turn on the sentence that was actually imposed. That means that -- in the case of a Official State crime, as we have here, that State law has to authorize the sentence, and that the State Court, applying State sentencing principles, has actually imposed a crime of -- for -- of at least 1 year. So, it is -- it is infused in Section 1101(a)(43) that, in fact, you do look to the consequences of an offense under State law.
05-547 +++$+++ 42960 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm prepared to accept perfect ambiguity here, linguistically. And I thought of an empirical question, that you may know the answer to, that might shed some light. Now, going along the way -- maybe I'm making a mistake to point it out, if I am -- but I go to the key thing here, which is the words in 924(c), What is a "drug-trafficking crime"? A "drug-trafficking crime" is a crime -- "any felony punishable under the Controlled Substances Act." That could mean an act, physically, that is a felony under some law, and is also punishable under the Controlled Substances Act as a misdemeanor. Okay? Felony under -- it could pick that up. And it also could mean any conduct which is punishable as a felony under the Controlled Substances Act. And I could look at those words a thousand times and not have a clue which it means. So, I thought of an empirical test. This statute, 924(c), happens to be a statute that, if you engage in a drug-trafficking crime, as defined, and you Official have a gun with you, you get mandatory 5 years. That's the point of it. And the Government does all the prosecuting. So, in how many cases where a person committed a misdemeanor offense, simple possession, and had a gun, did the Government insist that they get the 5-years minimum? Now, if you're prepared to tell me "a lot of 'em," I'm prepared to tell you, the Government has consistently interpreted the statute the way you are now. But if you're prepared to tell me "zero," I would say I would be suspicious of an interpretation that comes along now for the first time. And my mind is open on it. I'm quite interested in the answer.
05-547 +++$+++ 42961 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To my knowledge, we have not brought crime -- prosecutions under 924(c)(1), based on the circumstances you posit, but that's --
05-547 +++$+++ 42962 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if --
05-547 +++$+++ 42963 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but I don't think that that goes very far with respect to answering this question. For one thing, as this Court pointed out in the Gonzales decision, the requirement that there be a Federal crime, and, therefore, a Federal felony under 924(c)(2), comes from the language in 924(c)(1) that says that the crime must be subject to prosecution in a court of the United States. And this Court, in Gonzales, said it's that language that renders the -- renders it a requirement that Official it be a Federal crime. The definition of --
05-547 +++$+++ 42964 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. We both agree. All -- everybody agrees here. It doesn't have to be a Federal crime.
05-547 +++$+++ 42965 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It doesn't have to be --
05-547 +++$+++ 42966 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And --
05-547 +++$+++ 42967 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- under 1101 --
05-547 +++$+++ 42968 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Correct, it doesn't have --
05-547 +++$+++ 42969 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
05-547 +++$+++ 42970 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- to be. It could be conduct that violates the State law, but -- and punish it under the State law -- but the conduct involved would have to constitute what is a felony under the Controlled Substances --
05-547 +++$+++ 42971 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Would have to --
05-547 +++$+++ 42972 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- Act.
05-547 +++$+++ 42973 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in our view, it would have to constitute --
05-547 +++$+++ 42974 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ A felony or a misdemeanor.
05-547 +++$+++ 42975 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- it would have to be punishable under the Controlled Substances --
05-547 +++$+++ 42976 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-547 +++$+++ 42977 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Act.
05-547 +++$+++ 42978 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right.
05-547 +++$+++ 42979 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the important point here is Official --
05-547 +++$+++ 42980 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. So, I say it's suspicious.
05-547 +++$+++ 42981 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the question is not what 924(c)(2) means, standing alone or in the abstract; it's what it means, as incorporated into 1101(a)(43). And --
05-547 +++$+++ 42982 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And, of --
05-547 +++$+++ 42983 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- there --
05-547 +++$+++ 42984 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- course, that's -- when you get to that, it must give you pause that your analysis is of a term, "drug-trafficking crime" or "illicit trafficking," and your theory leads to the conclusion that simple possession equates with drug trafficking.
05-547 +++$+++ 42985 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the Petitioner has conceded, as I understand it -- I heard Mr. Long, I think, concede -- that possession offenses can constitute aggravated felonies under this provision, that there is the recidivist possession, there is the possession of the date-rape drug, there is possession of 5 grams or more of cocaine. All of those are specified as being -- of being felonies under the -- under 940 -- or 844. But, beyond that, it's important to take into account that a lot of State statutes dealing with drugs do not -- are not patterned directly after the Federal statute, and there's Official no reason why Congress would have insisted that they do so in order for this statute to operate sensibly. And one notable example, for instance, is, when it comes to possession of a substantial amount of drugs, that that certainly would create a strong implication that the defendant was engaged in trafficking activities, or intended to. The Federal statute deals with that by making it a felony to possess with intent to distribute the drug. A number of States don't do that. They, instead, have graduated possession offenses, based on the quantity of drugs that the defendant is possessing; that above a certain quantity of drugs, it would be a felony. They're getting at the same problem, but they've come at it in a different way.
05-547 +++$+++ 42986 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then, in those cases, you can say the conduct would constitute a felony under the Federal statute; but here, if I recall correctly, the amount involved would not have qualified for possession with intent to distribute, under Federal law.
05-547 +++$+++ 42987 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it would always be up to the jury to decide that. Now, in Mr. Lopez's case, he was -- he was initially charged with a series of offenses that went beyond the aiding and abetting of possession that he ultimately pleaded guilty to, but, as he testified in his Official -- in his immigration hearing, his aiding and abetting of possession was assisting someone in purchasing drugs, which was, itself, a trafficking element. And so, this shows that the way the State crimes are defined or applied are often getting at what Federal law --
05-547 +++$+++ 42988 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. We have a case in which we're assuming, for our purposes, we just have possession. I mean, I understand the facts of this case. And I wanted to ask -- I have two questions, Mr. Kneedler. One of them -- the second one, I'd ask that -- you were going to mention three different points, one about conviction; you had two other points you didn't get to. I want to learn what those were. But, before that, it seems to me that, when you put the whole statute -- all the -- all the different statutory provisions together, you really boil down and focus on 924(c)(2) and the words "for purpose of this subsection, the term 'drug-trafficking crime' means any felony punishable under the Controlled Substances Act." And if the word "Federal" had been inserted before the word "felony" in the statute, would that not make the statute perfectly clear?
05-547 +++$+++ 42989 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It probably would, but I think it's interesting that the version of 924(c) that was in effect prior to 1988 said exactly that. It said "felony violation of Federal law." Official
05-547 +++$+++ 42990 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It was a question of --
05-547 +++$+++ 42991 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was -- it was explicit.
05-547 +++$+++ 42992 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- whether the change was intended to be --
05-547 +++$+++ 42993 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but --
05-547 +++$+++ 42994 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- substantive --
05-547 +++$+++ 42995 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Congress --
05-547 +++$+++ 42996 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- or merely --
05-547 +++$+++ 42997 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
05-547 +++$+++ 42998 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- stylistic.
05-547 +++$+++ 42999 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Congress did change it, in the 1988 Act, but it did it -- and this is significant -- it did it in connection with two changes in the immigration law. One is the enactment of the definition of "aggravated felony," which, as I have explained, the definition of "aggravated felony" looks to State law, in a number of respects, in terms of the severity of the offense or the punishment actually imposed. That was one change. The other change that was made in the 1988 Act was to amend Section 1326 with respect to illegal reentries, and it did that by enhancing the penalty for conviction of any felony other than an aggravated felony, and an aggravated felony. And certainly the conviction of any felony includes State law offenses in this -- Official
05-547 +++$+++ 43000 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Just again, Mr. Kneedler -- focusing again on that specific language, you're saying, in effect, that that phrase means any State or Federal felony punishable under the Federal statutes.
05-547 +++$+++ 43001 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It says -- yes, it says "any felony." And that is our -- doing it -- and what --
05-547 +++$+++ 43002 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And is it ever true that a State felony is punishable under a Federal statute?
05-547 +++$+++ 43003 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The conduct is --
05-547 +++$+++ 43004 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, I know, but --
05-547 +++$+++ 43005 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- punishable. The conduct is punishable, not --
05-547 +++$+++ 43006 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- but do you know of any instance where we've said a State felony is punishable under a Federal statute?
05-547 +++$+++ 43007 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think not -- I think not used in that sense, but I think it's important -- it's important to look at the language, as a whole. It does not say "punishable as a felony under" --
05-547 +++$+++ 43008 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you do agree --
05-547 +++$+++ 43009 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- "under the Controlled" --
05-547 +++$+++ 43010 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that the key to the case is how we read that one sentence.
05-547 +++$+++ 43011 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, no, I agree that the -- I -- in my view, the key to the case is in 1101(a)(43), Official because, if you look at the structure of 1101(a)(43) -- and this gets to the question you -- you said -- you mentioned that I had three reasons. One is that under the -- under the INA, the conviction consequences turn on the conviction of an aggravated felony, and it only makes sense to look at the jurisdiction of conviction to determine the nature of the crime, whether it's a felony.
05-547 +++$+++ 43012 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but you don't -- you don't look to the jurisdiction of conviction. Are you telling me you require a conviction? You -- I thought you told me you don't require a conviction.
05-547 +++$+++ 43013 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Under 924(c), you don't. But under the -- under the -- if you're bringing a Federal prosecution under 924(c), the term "aggravated felony" has no role in that determination. It is a -- it is a separate Federal crime. We're talking about, here, the consequences of -- the consequences of being an aggravated felon under 1101(a)(43) are, Where does the definition of "aggravated felony" apply? It only applies under the INA if someone has been convicted of an aggravated felony. You're only -- you're only subject to deportation for aggravated felony if you've been convicted, you're ineligible for cancellation or removal, you're subject to sentence enhancement. All those things follow on conviction. And we think it only makes sense to look to Official the jurisdiction of conviction. That is --
05-547 +++$+++ 43014 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right, Mr. Kneedler, assuming that -- as I understand it, the answer you just gave, your second point, as well as the point that you and Justice Stevens were debating, turns, in your view, on a definition, or a reading, of the statute that would work this way: that if, under State law, the act were a felony, but, under Federal law, the action was merely a misdemeanor, it would still, for purposes of this definition, be an aggravated felony.
05-547 +++$+++ 43015 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
05-547 +++$+++ 43016 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That -- isn't that very strange, that Congress would have wanted a reading of the statute that would turn its definition of a "misdemeanor crime" into an aggravated felony for purposes of the immigration law?
05-547 +++$+++ 43017 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so at all. And for one -- for one thing -- as I've mentioned, the structure of the act, as a whole, of 1101(a)(43) -- and there are numerous subsections -- look to how the crime -- what the authorized punishment was, or look to how the person was actually sentenced under State law, not under Federal law.
05-547 +++$+++ 43018 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but I'm --
05-547 +++$+++ 43019 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I --
05-547 +++$+++ 43020 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- saying, if -- Official
05-547 +++$+++ 43021 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No -- I --
05-547 +++$+++ 43022 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, go ahead.
05-547 +++$+++ 43023 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I also haven't mentioned the explicit provision, that one of the other Justices mentioned earlier -- I think, the Chief Justice -- that the penultimate sentence of 1101(a)(43) says that something -- a -- an offense constitutes an aggravated felony, whether in violation of Federal or State laws.
05-547 +++$+++ 43024 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
05-547 +++$+++ 43025 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So --
05-547 +++$+++ 43026 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- I know it says that, but that doesn't necessarily take you any further than saying that if the words of the statute refer to something that could be a State law felony, under the -- under the penultimate sentence, it will count. It does not necessarily answer the question that we have, and that is whether a particular reference in the statute is a reference to a Federal felony or a State felony. So, it has a -- the penultimate sentence has work to do. And, in fact, we can see the work being done in the -- in the very definition of "drug trafficking" -- but it doesn't necessarily lead to the conclusion that you draw from it.
05-547 +++$+++ 43027 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we think -- we think it is quite a -- we think it's a strong confirmation of the pattern in 1101(a)(43), that the statute looks to what Official happened in State Court, and the State punishment that was authorized there, and the express mention of that -- or --
05-547 +++$+++ 43028 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even when --
05-547 +++$+++ 43029 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- requirement.
05-547 +++$+++ 43030 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the consequence, in effect, is to turn for -- turn the gravity of the Federal misdemeanor into the gravity of --
05-547 +++$+++ 43031 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the --
05-547 +++$+++ 43032 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- a felony that --
05-547 +++$+++ 43033 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the Federal Controlled --
05-547 +++$+++ 43034 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- just happens to be a State felony.
05-547 +++$+++ 43035 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Federal Controlled Substances Act does not occupy the field of drug control in the country, any more than any other Federal crime occupies that field. And --
05-547 +++$+++ 43036 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I realize that. But, if we're asking, "What is important in the mind of Congress, for purposes of the immigration law?" one would suppose that the most obvious touchstone of importance is the way Federal law deals with it -- i.e., in the case of a crime, whether Federal law calls it a felony or Federal law calls it a misdemeanor. You know, in your reading, when Federal law calls it a misdemeanor, if State law calls it a felony, it becomes a Federal felony for the immigration Official law. And that's what seems to me odd.
05-547 +++$+++ 43037 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. And this is not the only place where that consequence can arise. There are -- there are cases involving "What's a crime of violence?" which is -- which, under subparagraph (g), is another aggravated felony. The crime of violence is defined in 18 U.S.C. Section 16, subsection (b) of that -- this Court considered that statute in Leocal -- requires that the offense be a felony which creates a serious risk of physical harm. The courts have looked to the State law of conviction to determine whether something is a felony --
05-547 +++$+++ 43038 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Kneedler, could --
05-547 +++$+++ 43039 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but --
05-547 +++$+++ 43040 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- under that provision.
05-547 +++$+++ 43041 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I just ask one --
05-547 +++$+++ 43042 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Sure.
05-547 +++$+++ 43043 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's one thing to turn to State law to get an answer where there is no other answer. The problem here is that State law and Federal law are at odds in determining the gravity of the offense. The Federal law, on my hypothesis, would say, "It is minor; it's just a misdemeanor." The State says, "No, it is a felony." It seems to me very odd, given the tension between the State and Federal classifications, to say that, for Federal purposes, the State classification is going to trump the Official Federal classification; and that's a different situation from the one you posit.
05-547 +++$+++ 43044 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, and -- if I could just mention one other -- on other example, under the theft-offense category in subsection -- I think it's (f) -- where a theft offense is deemed to be an aggravated felony if a sentence of at least 1 year was imposed. There are misdemeanor offenses there that -- as a matter of Federal law, it can be a misdemeanor for certain types of theft offenses; and yet, they are covered as aggravated felonies. And, again, that would --
05-547 +++$+++ 43045 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Kneedler, could I ask you about your assertion that you "look to the State of conviction"? What do you mean by that? For purposes of 1101. Does that mean, if you're convicted, in State court, of a misdemeanor -- and even though that action would be a Federal felony, it's not an aggravated felony?
05-547 +++$+++ 43046 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is our position, yes. Because the requirement -- the --
05-547 +++$+++ 43047 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, it's sort of a double inconsistency. Not only do you treat State -- State actions that are -- that are minimal -- I'm sorry, where the State treats it more seriously than the Federal Government, not only do you follow the State, but, where the State treats it less leniently than the Federal Official Government, you also follow the State.
05-547 +++$+++ 43048 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, and --
05-547 +++$+++ 43049 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that right?
05-547 +++$+++ 43050 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. And we -- yes. We think that's --
05-547 +++$+++ 43051 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, you look to the State of conviction. What --
05-547 +++$+++ 43052 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ that's --
05-547 +++$+++ 43053 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's for purposes of the immigration law.
05-547 +++$+++ 43054 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of the immigration law. And, again, we think that --
05-547 +++$+++ 43055 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Now, do you do the same for purposes of the felony enhancement provision?
05-547 +++$+++ 43056 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 924(c)? No, you don't, because --
05-547 +++$+++ 43057 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You --
05-547 +++$+++ 43058 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the aggravated-felony question has no -- has no -- the "aggravated felony" term has no operative significance under 924 --
05-547 +++$+++ 43059 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that seems to me --
05-547 +++$+++ 43060 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- itself.
05-547 +++$+++ 43061 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- very strange. You would look to the -- you would look to the State law for purposes of the immigration section; but, for purposes of 924(c), what would you look to? Either one. Either one. Official Whichever --
05-547 +++$+++ 43062 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, 924 --
05-547 +++$+++ 43063 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- whichever -- for 924 -- whichever one would make it a felony.
05-547 +++$+++ 43064 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, under --
05-547 +++$+++ 43065 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You lose.
05-547 +++$+++ 43066 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- under 924(c)(1), this Court -- this Court, in the Gonzales case, said that it -- that it has to be a Federal crime, but not because of the --
05-547 +++$+++ 43067 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-547 +++$+++ 43068 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- definition in --
05-547 +++$+++ 43069 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
05-547 +++$+++ 43070 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- 924(c)(2) --
05-547 +++$+++ 43071 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right.
05-547 +++$+++ 43072 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but --
05-547 +++$+++ 43073 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If it's a felony under either one, for purposes of 924(c), you lose, right?
05-547 +++$+++ 43074 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think I --
05-547 +++$+++ 43075 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If the act is either a State felony or a Federal felony, you lose. I mean, the defendant gets the enhanced sentence, right, under 924(c)?
05-547 +++$+++ 43076 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
05-547 +++$+++ 43077 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No?
05-547 +++$+++ 43078 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under 924(c), the cases that have been brought have all been situations where it is a Official Federal offense. But, because -- not because of the language in 924(c)(2) --
05-547 +++$+++ 43079 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
05-547 +++$+++ 43080 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but because of the -- of the language --
05-547 +++$+++ 43081 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Listen.
05-547 +++$+++ 43082 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- in 924(c)(1).
05-547 +++$+++ 43083 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Listen. My question is a simple one. If it's -- it seems to me, if it's -- what you're saying is, if it is either a felony under Federal law or a felony under State law, you get the enhanced sentence under 924(c), isn't that right?
05-547 +++$+++ 43084 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- my understanding of the way 924(c)(1) has operated is that if it is a misdemeanor under Federal law, but maybe it would be a Federal felony, it would not be -- it would not give rise to the enhancement, because it is not a --
05-547 +++$+++ 43085 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought that's --
05-547 +++$+++ 43086 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- it --
05-547 +++$+++ 43087 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- what the whole argument is about, whether it has to be a felony under Federal law. You're telling me, if it's a misdemeanor under Federal law, that you don't get --
05-547 +++$+++ 43088 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But not --
05-547 +++$+++ 43089 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the enhanced sentence? Official
05-547 +++$+++ 43090 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but not under -- not under 924(c)(2) --
05-547 +++$+++ 43091 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But why not?
05-547 +++$+++ 43092 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the definitional --
05-547 +++$+++ 43093 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You've thoroughly confused me now.
05-547 +++$+++ 43094 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But 924(c)(1) says that if you have a gun, and you have a drug-trafficking crime, book, 5 years. Okay, now we go to two, what's a "drug-trafficking crime"? It means any felony punishable under the -- under the Controlled Substances Act. Now, in your definition, we first look to see whether simple possession is punishable under the -- in Controlled Substances Act. It sure is. It sure is. It's punishable as a misdemeanor. So, it meets that. Under your definition, is it a felony? Yup, it's a felony in South Dakota. Okay. So, now we've got a prosecution, in Federal Court in South Dakota. And, on your reading of the statute, that guy should get a bump-up of 5 years.
05-547 +++$+++ 43095 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, that is not our reading of the statute. The --
05-547 +++$+++ 43096 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because?
05-547 +++$+++ 43097 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The only thing that is incorporated into 1101(a)(43) is the definition in (c)(2) Official -- not (c)(1), the definition of --
05-547 +++$+++ 43098 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-547 +++$+++ 43099 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of "drug-trafficking crime" in (c)(2), which says --
05-547 +++$+++ 43100 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-547 +++$+++ 43101 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- "felony punishable under the Controlled" --
05-547 +++$+++ 43102 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
05-547 +++$+++ 43103 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- "Substances Act."
05-547 +++$+++ 43104 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
05-547 +++$+++ 43105 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is what gets plugged into --
05-547 +++$+++ 43106 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's correct.
05-547 +++$+++ 43107 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- 1101(a)- --
05-547 +++$+++ 43108 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
05-547 +++$+++ 43109 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- -(43).
05-547 +++$+++ 43110 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
05-547 +++$+++ 43111 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Along with all of the other provisions in 1101(a)(43), you look to State law, in the case of a State offense -- the State of conviction, the jurisdiction --
05-547 +++$+++ 43112 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-547 +++$+++ 43113 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of conviction -- to determine the nature of the crime.
05-547 +++$+++ 43114 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you still have to know whether that word, "felony," in (2) means "any felony Official punishable as a felony under the Controlled" --
05-547 +++$+++ 43115 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. And --
05-547 +++$+++ 43116 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "Substances Act."
05-547 +++$+++ 43117 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
05-547 +++$+++ 43118 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And there --
05-547 +++$+++ 43119 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- a number --
05-547 +++$+++ 43120 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah. You have to know the answer to that.
05-547 +++$+++ 43121 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- a number of Courts of Appeals that have looked at this in the sentencing context over the years have concluded that it -- that the absence of that language is very significant, and the presence of the language that says "any felony" is also significant.
05-547 +++$+++ 43122 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Never mind sentencing, let's get back to the immigration. If I understand what you're now saying, if you're convicted in State Court of action that is a Federal felony, but it's just a State misdemeanor -- right? -- you look to the State of conviction, and it would be a misdemeanor, and the immigration provisions would not -- would not take effect. Is --
05-547 +++$+++ 43123 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-547 +++$+++ 43124 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that right?
05-547 +++$+++ 43125 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that -- and that -- that's not true -- Official
05-547 +++$+++ 43126 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's extraordinary.
05-547 +++$+++ 43127 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but it's -- that's not -- only true under this provision of 1101(a)(4). The other -- the other provisions -- (f) and (g) and (j) and (q) and (t) that I mentioned, that looked to the sentence that may be imposed under State law, or that was actually imposed -- would, likewise, render someone in that situation who was convicted of only a misdemeanor in State Court -- even though it might be a felony under Federal law, they would not be -- they would not be convicted of an aggravated felony, because --
05-547 +++$+++ 43128 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Kneedler --
05-547 +++$+++ 43129 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of the way Congress chose to write 1101(a)(43).
05-547 +++$+++ 43130 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But is --
05-547 +++$+++ 43131 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you --
05-547 +++$+++ 43132 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that a reasonable -- let's say the statute's ambiguous, and you've convinced us there's no constitutional requirement of uniformity. But is it reasonable to assume that Congress would want the different consequences to depend on the State of conviction?
05-547 +++$+++ 43133 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it is. I mean, they're --
05-547 +++$+++ 43134 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there anything in the Official legislative history suggesting that?
05-547 +++$+++ 43135 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think -- as I say, I think it's on face of the statute.
05-547 +++$+++ 43136 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Barrett suggests otherwise. If what Congress was trying to do was to codify that practice of looking for an analogous crime under State law, that's -- that seems to me the -- at least what Congress was trying do.
05-547 +++$+++ 43137 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that -- the legislative history of the amendment in 1990 does not discuss the aspect of Barrett that went to the comparison to decide what -- in what circumstances there would be an analogous Federal crime. It was clear that it wanted to ratify the result that State crimes are covered. But we think that that was evident from the 1988 amendments to -- that both enacted the definition of "aggravated felony," revised the definition of "drug-trafficking crime" to delete the requirement that it be a Federal felony -- that was deleted in 1988 -- and enhanced sentences --
05-547 +++$+++ 43138 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You --
05-547 +++$+++ 43139 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- under 1326, clearly on the -- on -- by reference to whether someone was convicted of a State felony, without any -- without any general Federal minimum. Official
05-547 +++$+++ 43140 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I --
05-547 +++$+++ 43141 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What Congress --
05-547 +++$+++ 43142 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I just switch gears for a moment, because your time is almost up, and we -- you haven't addressed the mootness problem in Toledo-Flores.
05-547 +++$+++ 43143 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In Toledo-Flores.
05-547 +++$+++ 43144 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is the Second Circuit wrong in U.S. v. Hamdi? Because it seems to me that U.S. v. Hamdi is on all fours with respect to mootness.
05-547 +++$+++ 43145 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. We think it is wrong, be -- under this Court's decision in Spencer versus Kemna and other cases, that, if the possible consequence turns on a discretionary judgment that may be made by someone else, that is too speculative to constitute a real live case or controversy. And that's what I understand Toledo-Flores to be arguing, is that if he applied for discretionary relief in the future, that it might -- it might matter, because his sentence might be reduced slightly. I should point out that in the District Court Toledo-Flores conceded that if he didn't get an eight-level sentence enhancement, he would get a four-level sentence enhancement, because this is at least a felony, within the meaning of the adjacent provision of the guidelines. That would result in a guideline range of 24 to 30 months. He would then have gotten 24 months, under Official that guideline range, the very same thing that he got here. And, under the guidelines at the time, a term of supervised release was mandatory. And a 1-year term of supervised release was mandatory in those circumstances. He would have gotten exactly the same term of supervised release if he had been -- if he had gotten only the four-level enhancement, rather than the eight-level enhancement. I also think that it is somewhat farfetched to think that, given the fact that Toledo-Flores had more than 12 illegal entries into the United States, and various State offenses, that the determination of whether the attorney general would actually grant discretionary relief would turn on a marginal difference in the sentence on that particular offense.
05-547 +++$+++ 43146 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Kneedler. Mr. Long, you have 4 minutes remaining.
05-547 +++$+++ 43148 +++$+++ FALSE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. In answer to Justice Breyer's question, Mr. Kneedler said that a Federal misdemeanor is a drug-trafficking crime under Section 924(c) if a State punishes it as a felony. He said, "Well, the Federal Government never prosecutes Federal misdemeanors under Section Official 924(c)." He said, "The reason is because of 924(c)(1)(A)," and the language there is, it has to be an offense for which the person may be prosecuted in a court of the United States. But that language -- a person may be prosecuted in a court of the United States for a misdemeanor. So, the Government is making an argument that, to my knowledge, has never been accepted by any court, has not ever been advanced by the Government in a criminal context, and that would significantly expand Section 924(c) and numerous other criminal statutes that we cite in our brief that used the same definition of "drug-trafficking crime." The -- Mr. Kneedler also said that the aggravated felony provisions in Section 101(a)(43) refer to State law, but I read them just the opposite. There are two kinds. There are 21 of them. Many of them say, "an offense described in 18 U.S. Code Section X." I mean, that's really what -- we're dealing with one of those here. So, it clearly goes to Federal law to define the offense. Now, if State law or foreign law also punishes that offense, then it's an aggravated felony, but, clearly, Federal law is defining the offense. There are other categories, such as murder and theft, that are defined, in general terms; but the Government's position, as I understand it, is, again, you Official use a generic uniform definition. You don't pick any definition that the States may have. The Court just granted --
05-547 +++$+++ 43149 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I thought -- I thought you conceded that a State offense could constitute illicit trafficking --
05-547 +++$+++ 43150 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, yes --
05-547 +++$+++ 43151 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in a Controlled Substance --
05-547 +++$+++ 43152 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Mr. Chief Justice. But, again, to be clear -- and I think this is consistent with the Government's position in other cases -- ultimately, there will be some uniform Federal definition of what constitutes illicit trafficking. It would be -- some commercial element would probably be the definition the Court hasn't decided. States can define it more broadly. But the actual definition -- just as the definition of "burglary" or "theft" --
05-547 +++$+++ 43153 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You think there's a uniform Federal definition of a theft offense?
05-547 +++$+++ 43154 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's -- I mean, as -- this -- in the Taylor case, in burglary, the Court has a methodology for this. You pick a sort of generic definition. It may not -- it may not come from a Federal statute; it could -- Official
05-547 +++$+++ 43155 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There's -- they'll -- there's no variation in State offenses that would fall within that, a theft offense?
05-547 +++$+++ 43156 +++$+++ TRUE +++$+++ MR. LONG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's -- again, this is -- the provision we're dealing with is -- looks to Federal law, the Controlled Substances Act and two other statutes. My understanding of the Government's position -- and it's consistent with this Court's cases, in Taylor -- is that, even when it's a generic offense, you would -- you would still have a uniform definition. And that is certainly consistent with the principle of uniformity that applies both in criminal law and in immigration law. I mean, if there's any ambiguity, at the end of the day, ambiguities are supposed to be resolved in favor of uniformity, uniform Federal law -- uniform Federal criminal law, and uniform immigration law. Effectively, what the Government is arguing that -- is that States can banish noncitizens, and can do so by enacting drug laws, deciding to make a simple possession offense a felony. That's a decision that a State would make, almost certainly, for reasons that have little or nothing to do with immigration, and it's highly unlikely that Congress would have left that determination to States. On uniformity, aggravated felonies is a condition for citizenship. If you're convicted of an Official aggravated felony, you may not become a U.S. citizen. You are foreclosed from establishing good moral character. So, in fact, citizenship is at stake here, and the Uniformity Clause is in play. If there are no further questions, thank you.
05-547 +++$+++ 43157 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Long. The case is submitted.
05-5705 +++$+++ 43162 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++  +++$+++ We'll hear argument next in Hammon v. Indiana. Mr. Friedman.
05-5705 +++$+++ 43164 +++$+++ FALSE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The Court can decide these cases, as it decided Crawford without testing the outer bounds of the Confrontation Clause, by adopting a simple proposition that is easily understood by and intuitively sensible to ordinary lay people and so capable of being passed on from generation to generation as one of the cornerstones of our fundamental liberties. A criminal conviction cannot be based on an accusation made privately to a known law enforcement officer. If a State wishes that such an accusation be presented in support of a conviction, then it must ensure that the accuser testifies in the manner long required by the common law system of criminal justice, in the presence of the accused, under oath, and subject to cross examination. As in Crawford, the Court does not need to offer a comprehensive definition of the term testimonial. It is enough to say that an accusation to a known law enforcement officer must be testimonial under any plausible definition.
05-5705 +++$+++ 43165 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ When, for example, there's an undercover agent, a law enforcement officer -- let's think of the mafia or the Ku Klux Klan reveals himself. One of the co-conspirators during the ongoing conspiracy switches sides. But no. He doesn't switch. He's still in the conspiracy. Makes a whole lot of statements. Those are all inadmissible, though they'd come in now because they would be in the furtherance of the conspiracy.
05-5705 +++$+++ 43166 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Statements in furtherance of a conspiracy, if I understand --
05-5705 +++$+++ 43167 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. There -- but there's -- in other words, I've got your definition and all I've tried to do is create a circumstance where, while it fits your definition, it's made by a person that is in the conspiracy. So I make him undercover, the law enforcement officer.
05-5705 +++$+++ 43168 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it's an undercover law enforcement --
05-5705 +++$+++ 43169 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But known.
05-5705 +++$+++ 43170 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ By -- by known, I mean to the declarant.
05-5705 +++$+++ 43171 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-5705 +++$+++ 43172 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ By known, I mean to the declarant. So if it's --
05-5705 +++$+++ 43173 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-5705 +++$+++ 43174 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- if it's an undercover agent and so it's a statement to an undercover --
05-5705 +++$+++ 43175 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So you're saying my hypothetical could never come up. What I'm trying to do is -- it seems to me that your hypothetical is going to take statements that would come in that are pretty far removed from the prosecution that are in odd circumstances, are not just a testimonial at all in anybody's thought, but it keeps them out.
05-5705 +++$+++ 43176 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I'm afraid I -- I don't fully understand the hypothetical. If the -- if the officer is not known to the declarant as a law enforcement officer, then there's no problem. Then -- then the statement could --
05-5705 +++$+++ 43177 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He's known.
05-5705 +++$+++ 43178 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If he's -- he's known to the law enforcement officer and the member of the conspiracy is making a --
05-5705 +++$+++ 43179 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's continuing.
05-5705 +++$+++ 43180 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's a continuing conspiracy, but -- but that statement to the law enforcement officer saying that somebody else in the conspiracy has committed a crime, would not, in fact, be in furtherance of the conspiracy. It would blow the conspiracy apart.
05-5705 +++$+++ 43181 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ All right. You've convinced me I have a bad hypothetical. (Laughter.)
05-5705 +++$+++ 43182 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You go ahead.
05-5705 +++$+++ 43183 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I don't think it's -- Your Honor, I feel duty-bound to say there are no bad hypotheticals, but there are -- there are easy ones, and I think if -- if it's a known officer -- it's -- in that situation, it's going to be accusatorial. If it's not a known officer, it's -- it's not accusatorial --
05-5705 +++$+++ 43184 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What if a statement is made to a known law enforcement officer providing information that's -- that's very incriminating against somebody, but it doesn't specifically identify that person? Does that fall within your test?
05-5705 +++$+++ 43185 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I believe it does. Of course, in this case we have both, a description of the crime and an identification of the perpetrator.
05-5705 +++$+++ 43186 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So it's an accusation even though it doesn't identify the person who is alleged to be the perpetrator?
05-5705 +++$+++ 43187 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We could call it what we will. I think -- I think that it still would be within the narrow proposition that we're advocating that a -- that a description of the crime to a known --
05-5705 +++$+++ 43188 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So really, your test is any evidence that's -- any statement made to the police or -- is an -- is testimony.
05-5705 +++$+++ 43189 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. I think it -- it either has to describe a crime or identify the perpetrator or, as in this case, do both. So --
05-5705 +++$+++ 43190 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Any relevant evidence given to law enforcement is testimonial.
05-5705 +++$+++ 43191 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, when you say -- when you say relevant, I think that if the law enforcement officer -- if -- if it's a statement to a known law enforcement officer in the line of duty, it's -- it's almost always going to be testimonial. If it -- if it identifies the -- the perpetrator or describes the crime, I would say it's clearly testimonial, or if it's in response to the -- to the officer's inquiries, it's clearly --
05-5705 +++$+++ 43192 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If somebody calls and says, I just saw a blue Toyota with Ohio plates commit a hit and run, that's testimonial?
05-5705 +++$+++ 43193 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe -- I believe so. Now -- now, in fact, that would provide some identifying information because it is a person who is associated with that blue -- with that blue Toyota. But if it's simply a officer in the donut shop, I just saw Jack, he's back in town, with no clear relation to any -- any crime, that's presumably just chatter and that wouldn't be testimonial even if it -- even if it later becomes relevant.
05-5705 +++$+++ 43194 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But if it's relevant that Jack is back in town, then that's testimonial.
05-5705 +++$+++ 43195 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If -- if at the moment that it's made, the declarant understands that Jack being back in town might be useful in an investigation, or if a reasonable person in the position of the declarant would understand it, that would be testimonial. Yes. Yes, Your Honor. So the -- the basic principle for which we're advocating does not lie at the -- outside of the -- of the definition of testimonial. I think it's simply a core proposition.
05-5705 +++$+++ 43196 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the people who are making all these statements are -- are to be understood as witnesses against somebody within the -- the language of the Confrontation Clause?
05-5705 +++$+++ 43197 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think within the -- within the meaning of the Confrontation Clause, if those statements are allowed at proof -- as proof at trial without the person coming in, then what we have essentially done is created a system by which people can create evidence for use by the legal system, by engaging those statements without coming into court. That's -- that's right. And so I think one of the critical factors here is to imagine what happens if statements, such as the ones in -- in this case, are admitted -- are admissible, and this Court holds -- holds that they are, then basically they always can be admitted. Then any State is free to create a system in which a statement to a responding officer comes in as proof. There's no need for the -- for the -- the declarant to show up at trial, and there's no doubt that -- that that is what would happen. California and Oregon have already adopted such statutes, and -- and my State of Michigan is on the verge of doing so.
05-5705 +++$+++ 43198 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Statutes that -- that say what?
05-5705 +++$+++ 43199 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That say -- that say accusations to a -- made to a law enforcement officer, in the case of Oregon and the pending Michigan bill, accusations of domestic violence are admissible so long as they are made reasonably freshly -- but they give a 24-hour time frame -- they -- they are admissible. No need for excitement. So -- so the idea that -- that the jurisdictions have limited this to -- to excited utterances is -- is not -- is not so. If -- if the Court affirms the decision here, I think the message would go out that these -- that these statutes are perfectly okay.
05-5705 +++$+++ 43200 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And those -- those --
05-5705 +++$+++ 43201 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and what -- what is the theory on which the statutes are -- are adopted?
05-5705 +++$+++ 43202 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
05-5705 +++$+++ 43203 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What's the argument that they propose to say it's not testimonial? I know you disagree with it, but --
05-5705 +++$+++ 43204 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, the -- I don't think there is a theory. And I say that quite seriously. I -- I actually testified last month before the Michigan House on the -- the bill saying I believe this bill is blatantly unconstitutional. I believe it's going to be held unconstitutional within a few months. There was not a high level of interest in the constitutional argument before the legislature. I don't think there is a theory. I think the -- I think the theory is that prosecutors say that these would be good laws to pass. So --
05-5705 +++$+++ 43205 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What's -- what's worrying me on this is -- I'll tell you my concern without the hypothetical. Crawford wrenches the Confrontation Clause free of the hearsay rule, and therefore, testimony -- it might be testimonial even though it is not hearsay or falls within an -- doesn't fall within an exception. You understand what I'm saying. Fine. Now, you come along with a suggestion, and what struck me immediately was that, wait a minute, can't I easily think -- apparently not easily -- can't I easily think of instances where it would be testimonial but it isn't an accusation made to a policeman. And conversely, can't I easily think -- not easily -- of instances where, well, it would have come in, but it was statements made to a policeman maybe years before, maybe about this, maybe about that? Maybe it's a hospital record. Maybe it's a business record. There are all kinds of exceptions to the hearsay rule, and they don't run parallel to the test you've just given. That's what's worrying me. What's the test?
05-5705 +++$+++ 43206 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, let -- let me be very clear. We do not propose that this categorical principle that an accusation to a law enforcement officer is a definition of what's testimonial. We regard this as a core category of testimonial statements such as the core categories that the Court listed in Crawford. So -- so if a statement fits within that -- within that category, that is sufficient to make it testimonial.
05-5705 +++$+++ 43207 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Such as in Crawford, but in Crawford, it was the kind of formal statement, the Court said, materials such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross examine, or similar pretrial statements. Similar pretrial statement is not an agitated woman calling 911 or telling a police officer who -- as in your case, who comes in response to a call, there's a disturbance going on in that house, get there.
05-5705 +++$+++ 43208 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. I -- I understand, Justice Ginsburg. Of course, Crawford was only listing a non-exclusive list of -- of core -- of core categories.
05-5705 +++$+++ 43209 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. We -- we -- that -- that quotation was a -- a description of what Crawford described as the core.
05-5705 +++$+++ 43210 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-5705 +++$+++ 43211 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not -- not the totality of --
05-5705 +++$+++ 43212 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly not the totality, and if you say, well, this statement was informal, it -- it doesn't make sense and I think it conflicts with a comment in Crawford in footnote 3 to say, well, informal testimony is -- is okay, as the Court said in -- in Crawford. If -- if sworn out-of-court testimony is invalid, it wouldn't make sense to say that unsworn testimonial statements are perfectly okay. Now, so far as the principle that -- that because the witness is under agitation, the -- the Confrontation Clause doesn't -- doesn't apply, I don't think that's -- that's valid at -- at all. It certainly isn't valid historically. If -- if it were, we would have seen examples over history in which agitated declarants -- their statements came in. But as -- as General Dreeben has indicated, the very -- the very organizing principle of prosecution was that the accuser must come and -- come and testify.
05-5705 +++$+++ 43213 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Did the legislatures that have passed laws of the kind you describe have before them information that there is a rather high incidence of the victim being intimidated and therefore not showing up in court to testify?
05-5705 +++$+++ 43214 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your -- Your Honor, in the -- in the Old Bailey sessions papers there were approximately 2 percent of the cases, the victim who was the prosecutor did not show up. It was a recurring -- a recurring matter. Why they didn't show up may have been for various reasons. And I want to emphasize that the State in the very first paragraph of its brief emphasizes that there are numerous reasons why, in the domestic violence context, the -- the accuser may not testify in court. And in those roughly 2 percent of all the cases, which is 2,000 cases, in not a single one -- well, I'm sorry. There was one in which there was a -- a conviction. That's because -- because the defendant -- because the defendant confessed. But in all the others, the accusation was -- the -- the case was summarily dismissed.
05-5705 +++$+++ 43215 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you -- you have to assume not only that the victim is unwilling or reluctant to testify, you have to assume that the victim has disappeared because the victim, unwilling or not, could be subpoenaed. Isn't that right?
05-5705 +++$+++ 43216 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the victim could be subpoenaed, and in -- in this case, as in Davis, the victim was subpoenaed, but subpoenas have to be enforced. And -- and I think in some cases the prosecution does -- simply doesn't enforce the subpoenas. It's what the Cook County --
05-5705 +++$+++ 43217 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, but I'm saying the scope of the problem is -- is much more narrow than what is suggested by simply describing how often it is that the -- that the complaining witness is reluctant to testify. That doesn't stop anything.
05-5705 +++$+++ 43218 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-5705 +++$+++ 43219 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Reluctant or not, that witness can be -- can be subpoenaed.
05-5705 +++$+++ 43220 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is -- that is correct, Justice Scalia. It is the State's choice whether to compel the -- the person to -- to testify, and if, as Cook County has done, they put in particular efforts to protect the witness, to encourage her to testify, then prosecutors get a very high return. That is, in -- in the Cook County program, 80 percent of -- of the witnesses testify. They get a very high conviction rate, and they protect the -- the witnesses. So I think the message from this Court is going to be one of two things. Either it's okay to adopt a California/Oregon type of statute and just -- just let any statements come -- come in, or we have to put in the resources to -- to -- into domestic violence to ensure that the witnesses come -- come to court.
05-5705 +++$+++ 43221 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know why the or would necessarily follow. I mean, if you prevail, there's nothing that compels the State to put money in what has been suggested, a training program, shelters, counselors for these people.
05-5705 +++$+++ 43222 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They --
05-5705 +++$+++ 43223 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Nothing at all compels the State to do that.
05-5705 +++$+++ 43224 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They -- they would not be compelled to do that, but -- they would not be compelled constitutionally to do that. They would simply be deprived of a -- of -- of the so-called evidence-based prosecution, which has just been a phenomenon of the last 14 years.
05-5705 +++$+++ 43225 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your point, I thought, was that that would be the incentive for --
05-5705 +++$+++ 43226 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that --
05-5705 +++$+++ 43227 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- for police departments, of course --
05-5705 +++$+++ 43228 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that -- that is correct.
05-5705 +++$+++ 43229 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- if they want to make their cases.
05-5705 +++$+++ 43230 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. They -- they would -- they want to make their cases, and -- and I think they can make their cases best if the witness testifies, in which case, under the Confrontation Clause now -- now construed, there's no objection then to bringing in the prior statement at all.
05-5705 +++$+++ 43231 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What about present sense perceptions? That might be a good one.
05-5705 +++$+++ 43232 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and --
05-5705 +++$+++ 43233 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Apparently 803(1) has the first exception --
05-5705 +++$+++ 43234 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-5705 +++$+++ 43235 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to the hearsay rule. It's present sense impression.
05-5705 +++$+++ 43236 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-5705 +++$+++ 43237 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So on the phone, somebody is describing very calmly -- very calmly to the policeman the terrible crime that he sees going on in front of him. Now, I gather from the fact that it's an -- that it is a exception, that now in the Federal courts that would be admissible.
05-5705 +++$+++ 43238 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it would have been under Roberts presumably.
05-5705 +++$+++ 43239 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. No. Forget the -- yes. Every day of the week, they come in. Is that right? Present sense impressions. It's here as the first exception to the hearsay rule.
05-5705 +++$+++ 43240 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's -- it's an exception. In civil cases, there's no problem. In -- in criminal cases --
05-5705 +++$+++ 43241 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there it is, 803(1).
05-5705 +++$+++ 43242 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
05-5705 +++$+++ 43243 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I mean, and you practiced this for years. See. I mean, you're an expert in this, and I -- I think my impression -- just tell me if I'm wrong -- is it's 803(1). It says a present sense impression comes in. So I guess it does unless I'm --
05-5705 +++$+++ 43244 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but until -- until White v. Illinois basically let the guard down, these -- these statements could not come -- accusatory statements that might have been in present sense impressions did not -- were -- were not the basis for prosecutions. Once -- once White v. Illinois was decided, then -- then courts allowed them in routinely.
05-5705 +++$+++ 43245 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So if we adopt your rule, a person calls up on the phone and says, I'm here at the baseball game, there's a terrible crime going on in front of me, and he describes it --
05-5705 +++$+++ 43246 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-5705 +++$+++ 43247 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to the police officer, that no longer could come in.
05-5705 +++$+++ 43248 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I believe that is correct because that --
05-5705 +++$+++ 43249 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I should hope not. I mean --
05-5705 +++$+++ 43250 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it shouldn't. It's an accusatory -- it's an accusatory statement to -- to a -- a -- to law enforcement. Now, I mean, the Court could, if it wanted, carve out or -- or draw the line at statements that are describing the contemporaneous -- the absolutely contemporaneous commission of a crime. I don't think it's a particularly good line to draw.
05-5705 +++$+++ 43251 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, no. I wasn't --
05-5705 +++$+++ 43252 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-5705 +++$+++ 43253 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- trying to reduct you out of --
05-5705 +++$+++ 43254 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-5705 +++$+++ 43255 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I just wanted to know what the facts are about the rule. I was just -- that's what I was asking.
05-5705 +++$+++ 43256 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the rule is that the hearsay law -- the rule against hearsay provides -- the modern rule against hearsay provides no -- no restriction. The Confrontation Clause should. And let me address the -- your concern, Justice Breyer, that is this hearsay rather than -- than confrontation. I think -- I think that the notion of the accuser is central to the confrontation right and always -- and always has been, and those 2,000 cases really develop. As of 1791, the rule against hearsay was barely developed, and we cite -- or the -- the rule against hearsay was barely developed and Edmund Burke said that a trained parrot could recite all the laws of evidence in 5 minutes, and that is no longer -- that is no longer so.
05-5705 +++$+++ 43257 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Edmund Burke say that?
05-5705 +++$+++ 43258 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Edmund Burke said that, yes.
05-5705 +++$+++ 43259 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Friedman, can I go back to your answer that the police will then -- in response to the position that you're urging, will then protect the victim and all these fine things? It wasn't so long ago that the police wouldn't bother with these prosecutions at all. They didn't care about them. And if you say you're going to have to drag in the victim, you're going to have to jail her for contempt if she's so scared that she won't testify, they'll say, who needs it. We've got a lot of other crimes to prosecute.
05-5705 +++$+++ 43260 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I hope not, Your Honor, and I -- I believe that we've gotten past the point. I mean, I think we now recognize how serious a -- a crime domestic violence is. Let me emphasize that it is just as now sometimes a prosecutor will compel a victim to testify. It will still be that sometimes they will and sometimes they won't. That will be a matter of -- of State policy. There are other approaches as -- as well. And -- and hopefully, compulsion isn't necessary, I think, if the prosecutors pay -- pay sufficient attention and -- and care, but beyond that, there's the possibility of forfeiture. If, indeed, the reason why the victim will not testify is because of intimidation, then -- then the prosecution -- it is open to the prosecution to prove that. In many cases, the case can be proven --
05-5705 +++$+++ 43261 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's very powerfully hard to prove, isn't it?
05-5705 +++$+++ 43262 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Your Honor. And -- and, of course, it remains to be seen just how easy or how hard it -- it is to -- to prove. But, in fact, the -- as Mr. Fisher said, the rules of evidence don't apply at the -- at the preliminary hearing. It's the judge, not the -- the jury that has to decide. And the standard of proof presumably would not be beyond a reasonable doubt. So --
05-5705 +++$+++ 43263 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But you are back -- as Justice Breyer pointed earlier, you're making the prosecution prove two crimes instead of one.
05-5705 +++$+++ 43264 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, intimidation is -- is a crime, but it wouldn't -- it wouldn't be a full criminal case. It would, as in many other contexts, simply a preliminary hearing on -- on a threshold issue. As we have for every evidentiary problem, for every -- for any -- any evidentiary problem, such as does the present sense impression exception apply, there's a preliminary --
05-5705 +++$+++ 43265 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but every evidentiary problem, the -- the root of the problem is not the inability of the -- or the unwillingness of the primary victim to testify. I mean, that's what makes intimidation so hard to prove in these cases is because you have to get the -- if -- if the intimidation is successful, the witness to testify about the -- the crime is unavailable and unwilling to do so.
05-5705 +++$+++ 43266 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it -- it would remain for the Court to determine what the standards are for proving --
05-5705 +++$+++ 43267 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you wouldn't have to prove beyond a reasonable doubt, would you?
05-5705 +++$+++ 43268 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I wouldn't --
05-5705 +++$+++ 43269 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This is -- this is a pretrial hearing on whether the -- the -- there's been intimidation. Couldn't the judge just find it more likely than not that the defendant has intimidated a witness?
05-5705 +++$+++ 43270 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Prior decisions of the Court suggest that that would most likely be the -- the standard. It may be --
05-5705 +++$+++ 43271 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the -- the judge can't make that finding if the witness doesn't testify, can he?
05-5705 +++$+++ 43272 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, I think that -- that the judge may well, and I think it would remain --
05-5705 +++$+++ 43273 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ How's that? The prosecutor goes in and says, we think the defendant has intimidated the witness by saying he's not going to support her financially, he's going to leave, whatever, and -- and the -- presumably the -- the defendant says no -- no, and the witness isn't there. The judge says, well, I find by a preponderance of the evidence that he has intimidated her?
05-5705 +++$+++ 43274 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it remains an open question what the standards would be for -- for proof and whether that would be constitutionally accepted. This, of course, is a matter for -- for another day. I think what the Court can't do is effectively assume as a -- or create an irrebuttable presumption that in all domestic violence cases, the -- the victim has been intimidated, which is what the State asks, even though they acknowledge at the very outset that there are many other reasons why -- why the victim may not testify. The -- there's no domestic violence exception for the confrontation right, just as there's no organized crime exception for the confrontation right. So I do think that -- that what the procedures are for forfeiture is -- is a big open question. But -- but it's the State's burden to prove forfeiture. It -- it can't be assumed as a per se matter.
05-5705 +++$+++ 43275 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Do you have a second choice rule? I mean, we have Professor Amar, who has pretty formal criteria.
05-5705 +++$+++ 43276 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-5705 +++$+++ 43277 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We have the rule that you just enunciated, and I don't want, before you sit down, to -- I want to find out if you have an intermediate position, a fall-back position.
05-5705 +++$+++ 43278 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, our -- our narrow rule is -- is simply the -- an accusation to a law enforcement officer. We -- we, of course, believe that the more general test is reasonable expectation of the declarant and that's where -- where I disagree with -- with Professor Amar. I don't know that he would -- I don't know that he would disagree. I'd be surprised if he would disagree that an accusation to a law enforcement officer is -- is testimonial because -- because that is such a -- a narrow principle. Now -- now, he does speak about -- about formality, but formality, for reasons I suggested, I don't think -- I don't think makes an awful lot of sense because it then gives the police officers and prosecutors an incentive to take testimony informally. And what we have then, as in this case, we have not the affidavit, which -- which the State is condemning as admissible. They now concede that that's inadmissible. The evidence on which this prosecution is based is a police officer's rendition of what he was told orally, which is a denigrated form of -- form of evidence. That's where a formality rule will -- will get you.
05-5705 +++$+++ 43279 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Where -- where do you come out on the person running out of the house and yelling to her neighbor with the law enforcement officer standing by?
05-5705 +++$+++ 43280 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and --
05-5705 +++$+++ 43281 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's not -- the statement is not to the law enforcement officer, but he or she overhears it.
05-5705 +++$+++ 43282 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If -- if the -- if the speaker knows that the law enforcement officer is there --
05-5705 +++$+++ 43283 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Doesn't.
05-5705 +++$+++ 43284 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- then -- then I -- then -- then it's not within the narrow categorical rule for which we're -- we're asking now. It may come within the general test of reasonable expectation.
05-5705 +++$+++ 43285 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Is anybody -- is anybody working for the State a law enforcement officer?
05-5705 +++$+++ 43286 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, not -- not within the -- within the narrow categorical rule that we're asking. I think it's another question if, say, you're speaking to a -- a doctor who's an employee of the State hospital --
05-5705 +++$+++ 43287 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Or a 911 operator who was an agent of -- of the police.
05-5705 +++$+++ 43288 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ A 911 operator is a direct conduit to the police, and the police are a direct conduit to the court. And -- and that addresses your hypothetical, Justice Scalia, about the -- the affidavit right to the court. The person writes an affidavit right to the court. Under -- under the theory presented by the State under the resemblance theory -- let's take away the -- the sworn part of the affidavit. It's just a letter or -- or a message over the Internet or a videotape. All of those would be allowed because there's no formality, because there's no interrogation, and that's a grotesque result --
05-5705 +++$+++ 43289 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure what -- what sense it makes. Two cases. The woman runs out and -- and says, he -- he stabbed me and I'm dying, he's a murderer. Case one, it's a -- a neighbor. Case two, it's a police officer and she sees that he's a police officer. Why -- why should there be a difference? It doesn't make any sense to me.
05-5705 +++$+++ 43290 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'm -- I'm not saying there necessarily should be a difference. I think -- I think in the --
05-5705 +++$+++ 43291 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I thought your test was if she knows that he's a police officer, it's testimonial.
05-5705 +++$+++ 43292 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We're saying that is an easy case. That's what Professor Mosteller called a dead bang case where it's made to a police officer.
05-5705 +++$+++ 43293 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, let me put it this way. I don't know why one case is so easier than the other.
05-5705 +++$+++ 43294 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it's an easier case because the police officer is a direct conduit to the -- to the machinery of -- of justice. When you're speaking to a police officer, you know you're speaking to the State. If the Court has no further questions, I'll reserve the balance of my time.
05-5705 +++$+++ 43295 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, counsel. Mr. Fisher.
05-5705 +++$+++ 43297 +++$+++ FALSE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Amy Hammon's oral statements to Officer Mooney arose in an emergency situation very similar to a 911 call, not in a situation where a detective was attempting to subvert the judicial system by developing evidence in secret with no intention of ever letting the witness testify at trial.
05-5705 +++$+++ 43298 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ She's sitting down at -- at a table, as I recall it, with the -- with the police officer on the other side of the table.
05-5705 +++$+++ 43299 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ She may -- yes, I think.
05-5705 +++$+++ 43300 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Has a cup of coffee.
05-5705 +++$+++ 43301 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't know about that. She was in the living room.
05-5705 +++$+++ 43302 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I thought there was a cup of coffee, too. Maybe -- I don't know where I got that from. Maybe I made it up.
05-5705 +++$+++ 43303 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, what we know is that the --
05-5705 +++$+++ 43304 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It didn't seem to me a terribly emergency situation in -- in that kind of a context.
05-5705 +++$+++ 43305 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I respectfully disagree, Your Honor. We're talking about a woman who has -- has stated that she has suffered a beating from her husband, that -- a beating that may flare up at any time if the officers withdraw, and the officer needs to know what happened so that he can properly address the situation.
05-5705 +++$+++ 43306 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At the time, the officer is right there in the house. There's certainly no emergency at the time. Now, you could say that -- that the woman is frightened about a recurrence, but if -- if that's your definition of an emergency, it's going to cover an awful lot of situations.
05-5705 +++$+++ 43307 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think it's -- the -- the moment to consider is not just the moment when the officers are present, but in fact, what would happen if the officers were to do nothing, which is one of the choices that, I suppose, the officers had. They could find out what was going on and address the situation, or they could withdraw, doing nothing, and then leave Amy Hammon to her own devices in a highly explosive situation. They -- we don't know exactly what -- what Officer Mooney said when he went back into the living room, but what we know is that there was no apparent interrogation of any type. We know that Amy Hammon at that point told him the story of the argument that had taken place and the resulting physical abuse. Now, what we know from -- from the accusation test that is put forth by -- by the petitioner is that the reason that it doesn't apply apparently to all statements to -- to police officers is that it must somehow take account of the co-conspirator statement. But we don't otherwise have any grounding of that test in the history of the Confrontation Clause. The test that we are proposing, the broader test that we are proposing, the resemblance test, flows directly from statements in Crawford suggesting that the way that we know what is testimonial and what is not is by examining the lessons of history. What we're proposing is that in any particular context, if the statement resembles one of those historical abuses in the civil law tradition, then in that circumstance it's testimonial. But if the --
05-5705 +++$+++ 43308 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Isn't -- isn't the problem, though -- I mean, as Crawford said, those examples defined the core. They were the paradigms, but they didn't purport to cover the whole ground. And it seems to me that your argument is to turn the core into the exclusive examples, in which case the Confrontation Clause in the real world is never going to apply.
05-5705 +++$+++ 43309 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think the important lesson from Crawford in that regard is -- is the methodology, and the methodology was let's look at history. What does history tell us the Founders were concerned about? And the Court listed the specific examples of affidavits, depositions, pretrial hearings, and -- and expanded that even to include interrogation. And in -- excuse me -- particular cases coming -- coming up, if there is evidence that -- that the statements do correspond to historical abuses, even if those abuses were not listed in Crawford, then that would be a different situation. That would be testimonial.
05-5705 +++$+++ 43310 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm not sure that that was the only concern of the Founders, I mean, the -- the -- you know, the -- the fact that -- that the State could corrupt the -- the statement through the interrogation. I'm not sure that was the only concern. I -- I think the Founders believed in a judicial system, at least in criminal cases, where the person has a right to cross examine his accuser. Whether the fact that the -- I am -- I'll put it this way. I am quite sure that it would have been held a violation of the Confrontation Clause if, as the prior example I gave, someone wrote out an affidavit and sent it directly to the court, no intervening police interrogation at all, just wrote out an affidavit from -- from France, mailed it to the court, and the court has this affidavit. I am sure that would be a smack-bang violation of the Confrontation Clause. And there's none of the -- the abuse that -- on -- on which you -- you would hinge the entirety of the violation.
05-5705 +++$+++ 43311 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, except that we do know that -- that affidavits, I agree, would have been prohibited, and that's one of the classic forms of testimony, indeed, that was enumerated in Crawford and that was kept out at the founding. And that falls into a very well-defined category.
05-5705 +++$+++ 43312 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But one of the reasons for that is -- let's assume you had a completely honest police officer. You may have a motive on the part of the witness to frame the defendant. I mean, that's another reason.
05-5705 +++$+++ 43313 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think it ostensibly could be. I think what we know, though, looking back at what -- at the -- at the Raleigh trial and at -- at the -- at the trials even in the colonial period, was that the Founders were concerned about abuses by the State, in -- in particular, in interrogations and in eliciting these affidavits and in using pretrial testimony.
05-5705 +++$+++ 43314 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I'm suggesting to you that it often happens that there are false charges made that the -- that the police believe to be true.
05-5705 +++$+++ 43315 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The false charges scenario is --
05-5705 +++$+++ 43316 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And this is fully consistent with prohibiting testimonial statements.
05-5705 +++$+++ 43317 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, I think what Crawford was talking about, in terms of trying to understand the Confrontation Clause, was not simply to hypothesize various problems that different types of evidence could present if it weren't cross examined, but instead to examine more particularly what the Founders were concerned about. And that was not one of the -- of the categories simply --
05-5705 +++$+++ 43318 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ May I ask this, Mr. Fisher? What is your answer to Justice Scalia's hypothetical, an entirely volunteered affidavit by the accuser? Is that admissible or not?
05-5705 +++$+++ 43319 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that -- well, certainly it's testimonial, and so --
05-5705 +++$+++ 43320 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So that would be prohibited by the Confrontation Clause. Yet, that was clearly not an example that would fall within the Marian practice.
05-5705 +++$+++ 43321 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, whether it would have come in --
05-5705 +++$+++ 43322 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, it doesn't resemble it is what I'm saying.
05-5705 +++$+++ 43323 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Whether it would have been a problem under the Marian practice I think is only part of the story. And certainly Crawford recognized that affidavits as a category were part of the -- of the tradition that led to the abuses that the Founders were concerned about. So Marian is, again, part of the story but not necessarily the whole thing. Now, when we articulate this resemblance --
05-5705 +++$+++ 43324 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Before you leave that, surely the affidavit isn't -- isn't what's magical. I mean, I'm going to change my hypothetical. The person recites his accusation on a tape recorder and mails the tape to the court. Now, are you going to say, well, it's not an affidavit? You'd exclude that as well, wouldn't you?
05-5705 +++$+++ 43325 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I don't know that I would because, again, you've got the -- you've got the form that Crawford was concerned about. The affidavit is the classic form.
05-5705 +++$+++ 43326 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would make no sense at all. I mean, that -- that is just the worst sort of formalism. If you do it in an affidavit, it's -- it's bad, but if you put it on a tape, it's -- it's good. I -- I cannot understand any reason for that.
05-5705 +++$+++ 43327 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't know that the analysis has to end there. I think, for example, there were other circumstances where other types of communications were problematic. In -- in Raleigh's trial, for example, Cobham had submitted a letter, and that was recited as part of the -- the concern. Now, if the Court were to determine that a recording of that sort was similar enough, it resembled enough that sort of abuse, then yes, it could be testimonial.
05-5705 +++$+++ 43328 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Fisher, let me again be sure I understand your position. Would the unsworn letter that Justice Scalia describes be admissible or inadmissible under your view?
05-5705 +++$+++ 43329 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that there is evidence historically that a letter would be testimonial, certainly coming out of Cobham's case and -- and other circumstances.
05-5705 +++$+++ 43330 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So then you don't rely on the affidavit point.
05-5705 +++$+++ 43331 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think it's -- it's a matter of what -- what is covered, what is mentioned in history. Affidavit is one of those -- those categories. Letters, in particular, in Raleigh's trial was another area that may have been problematic. And I think --
05-5705 +++$+++ 43332 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If that's your criterion, are you going to draw the distinction between the letter and the tape recording?
05-5705 +++$+++ 43333 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that that is the -- whether we have the resemblance test doesn't require us to answer that question because I think that the examination the Court would undertake would again --
05-5705 +++$+++ 43334 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, let's answer it. Is -- is the tape recording like the letter so that it -- it's inadmissible?
05-5705 +++$+++ 43335 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it's -- I think it is very similar to the letter and -- and could well be inadmissible, but I don't know that it's -- if the Court adheres to the test that it set forth in Crawford, that it's looking for forms of testimony that were prohibited at common law, certainly that would not have been one of them.
05-5705 +++$+++ 43336 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A videotape -- a videotape of a crime scene is admissible. Right?
05-5705 +++$+++ 43337 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's -- that's right. Now, if it's -- if you have a videotape of someone that -- that's responding to an interrogation, that's an entirely different thing.
05-5705 +++$+++ 43338 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
05-5705 +++$+++ 43339 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But a videotape of a crime scene again would be -- would be not testimonial.
05-5705 +++$+++ 43340 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But a tape recording by the same person who videotaped the crime scene, describing what he saw, you agree would be excluded.
05-5705 +++$+++ 43341 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that there's a high chance that could be -- be excluded.
05-5705 +++$+++ 43342 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So what's the test?
05-5705 +++$+++ 43343 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's the resemblance test, and the question --
05-5705 +++$+++ 43344 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Resemblance to?
05-5705 +++$+++ 43345 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To the historical abuses that the Founders were trying to address. And the --
05-5705 +++$+++ 43346 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Which were?
05-5705 +++$+++ 43347 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, which were in particular, we know, affidavits. We also know something about letters, and the question with the tape recording is, is it enough like, does it resemble those enough?
05-5705 +++$+++ 43348 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Do you accept the Government's --
05-5705 +++$+++ 43349 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the problem with the examples is that none of these are abuses. As I see it, the examples of the tape recording mailed in and the volunteer statement, I don't see how you can call those abuses.
05-5705 +++$+++ 43350 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the abuse comes not simply in how they were created, but -- but then in how they were later used. And -- and again, we're talking about trying to -- to craft a rule in part that has some bright lines to it based on -- on just what was -- what forms were not used --
05-5705 +++$+++ 43351 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Why isn't the -- the bright line that the Government asserts that this is a crime made in an urgent situation, when one doesn't -- the declarant doesn't think rationally will this be used eventually in a trial, where the declarant wants to stop an imminent threat?
05-5705 +++$+++ 43352 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I certainly think that that follows from the -- the overall test we propose.
05-5705 +++$+++ 43353 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that's a different test than the resemblance test that you're proposing.
05-5705 +++$+++ 43354 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our position is it's a corollary to it. And certainly it's a narrower test and applies, I think, here in -- in both cases to that, and it provides the opportunity resolve both cases on the notion that when the officers were at the scene, they were in no way behaving like inquisitors. They showed up. They were -- they could -- they were in the middle of -- of an abusive situation that could explode at any time, and they needed to know what -- what was going on in order to diffuse the situation. So this case could be resolved on that -- on a much narrower ground. It's -- it's important here also to -- to recognize that what the -- what the prosecution did has no -- no similarity to what would happen at the common law. We have here the government issuing a subpoena to Amy Hammon to come and testify and, obviously, showing that they would have preferred the live testimony in this case.
05-5705 +++$+++ 43355 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Was there -- was there any showing at all of whether they made the police -- or the prosecutor made any effort to enforce the subpoena?
05-5705 +++$+++ 43356 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was no such effort, Your Honor. But, well, here, if I may be permitted to go beyond the record just a little bit, what we -- what we do know is that the case was continued one time because Amy Hammon did not show up in response to a subpoena, and that the second time, the -- the trial proceeded. But there was no effort to send someone out to -- to enforce it or to bring any sort of contempt sanction.
05-5705 +++$+++ 43357 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, let's assume your -- you have here a woman who's sitting down in the kitchen with the police officer, talks to the police officer, and then signs an affidavit. Did she sign the affidavit at that time?
05-5705 +++$+++ 43358 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, yes.
05-5705 +++$+++ 43359 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that affidavit was not admissible because it's an affidavit.
05-5705 +++$+++ 43360 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
05-5705 +++$+++ 43361 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the police officer who testified to what she said and what he wrote down in the affidavit that she signed, that does get in.
05-5705 +++$+++ 43362 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
05-5705 +++$+++ 43363 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I can't see why that makes any sense at all. I mean, she -- she was either testifying when she spoke and then signed the affidavit, as evidence of her testimony, or -- or else she wasn't testifying, in which case both the affidavit and the oral statement should be in. I can't -- I can't see drawing the line between those two. It really seems very strange to me.
05-5705 +++$+++ 43364 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think whether you look at it from her perspective or from the officer's perspective, that something did change in the moment between the oral statement and the affidavit. If you look at it from -- from the officer's perspective, once Amy Hammon disclosed to him what had happened and -- and gave him information that he needed to handle the situation, then he could go about handling the situation. He didn't need the affidavit to do that. Once he turned to get the affidavit, he -- he was transitioning to -- less from an emergency mode and more to an evidence-gathering mode. If you're -- if you are looking at it from the standpoint of Amy Hammon, then at that point, when -- when Officer Mooney is -- is in the house and has her husband, you know, in another room and she's trying to just describe what's going on so that she can be protected, that's a far different mind set.
05-5705 +++$+++ 43365 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but it's a -- it's a classic mixed motive case. We don't know when the officer is sitting down with her and asking the questions, whether his primary motive is to make sure the guy doesn't come back or if his primary motive is to help make the case against the guy. It's both.
05-5705 +++$+++ 43366 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think it's reasonable to assume that officers, faced with an emergency situation, are primarily going to be working for -- from a concern of safety, for their own and for others. And so even if it is a mixed motive, I think that the point is that particular circumstance, it's reasonable to infer where there's an emergency -- ongoing emergency, an ongoing immediate safety concern, that safety and security are going to be the primary motive.
05-5705 +++$+++ 43367 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Why does his motive matter? I mean, the -- the issue is whether she is testifying, whether she is a witness, and I don't see how that changes when she tells him these things orally and when she signs the affidavit afterwards. It seems to me she's testifying as to what events had occurred.
05-5705 +++$+++ 43368 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, let me be clear that we're not suggesting a subjective inquiry into the officer's motive, but what we are saying is that whether a statement is testimonial depends on whether the government is -- is purely collecting evidence, making someone undergo an interrogation, for example, or whether they are performing tasks that really were not part of -- of any type of police function at the founding, which is sort of a community caretaking, public safety function, so that by definition in eliciting statements concerning the immediate safety issue, the police officer could not have been engaged in the kinds of abuses that gave rise --
05-5705 +++$+++ 43369 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right. This is helpful, very helpful to me, but I'm trying to see what you're driving at. I'm imagining the woman saying, he's hitting me, he's just hit me. She's in tears. That's excited utterance. Not. Then suddenly the officer, 5 minutes later, says I've heard what you said. Let's reduce it to writing. Here's the formal affidavit, et cetera, that is -- but to prevent Mr. Friedman's problem, we're going to have to say as to the second, that is even if you don't have the formality, you see, everything is the same, but not the formality. Now, how do we do that?
05-5705 +++$+++ 43370 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure if I'm following. Not formality --
05-5705 +++$+++ 43371 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm making the distinction you're making between she's in tears, excited utterance or res gestae, around there, just what you were talking about. Now think of the second affidavit -- when he reduces it to writing. That's different, calmer, clearly motive to testify, et cetera. Fine. But now what Mr. Friedman pointed out is if we make it turn solely on the formality, the piece of paper, the stamp, et cetera, they'll just avoid that. So we're going to have to sweep into the second the circumstance where everything is the same but the formality, and that's where I have the difficulty.
05-5705 +++$+++ 43372 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again, the -- the difficult task of understanding the Confrontation Clause is to figure out what limits there might be, and -- and in Crawford, the methodology was what does history tell us the Framers were concerned about. And certainly the formal affidavit was something that they were very concerned about. The less formal forms they were not. And certainly when it comes to something as -- as recent, you know, relatively speaking, as -- as the community caretaking function of the police, that was in no way part of -- of the abuses that the Framers were concerned about. And so I think even if the Court were to limit its decision to that part of the test, resolving the other instances, according to the resemblance test or -- or trying to figure out where to draw that -- you know, that line, could come later, consistent with its decision in this case.
05-5705 +++$+++ 43373 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But your answer, I take it, assumes that the Framers had no concern with the capacity of the court to test the -- the validity or the truth of the statement.
05-5705 +++$+++ 43374 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm not entirely sure if that's the case. I mean, I -- of course, they were operating in a -- in a circumstance where -- where hearsay rules were -- were part of trial process. Certainly also, to the extent that -- that a particular procedure is -- is outrageous, the -- a due process concern might arise, but --
05-5705 +++$+++ 43375 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but -- no. But I'm -- I'm not talking about outrageous circumstances in which the -- the statement was taken. I'm talking about the capacity of the court, by whatever means, to test the truth of that statement once it is placed before the court. And I understood your argument to Justice Breyer to assume that that testing function was not within the contemplation of the Framers.
05-5705 +++$+++ 43376 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it was with respect to -- to the abuses that -- testimony elicited through the abuses that gave rise to the clause, the -- the common -- or I'm sorry -- the civil law type abuses. They did want to test that, but the concern --
05-5705 +++$+++ 43377 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So that your -- your -- you would then say they want a -- they want to test certain -- in certain cases where they think there may have been an abuse in the elicitation of the statement, but if there is -- there is no reason to suspect that the statement was taken under untoward circumstances, they were not concerned to test its validity.
05-5705 +++$+++ 43378 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that -- that that's largely accurate, but they were dealing with, I think, a rather set form.
05-5705 +++$+++ 43379 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But is that your position?
05-5705 +++$+++ 43380 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, yes, but -- but if I may add a clarification, which is to say, the reason I think that we could circumscribe affidavits, regardless of whether the elicitation abuses are present, is simply for ease of administration, that abuses known to the Framers would have been arising in a circumstance where there would have been those abuses, and -- and as a form --
05-5705 +++$+++ 43381 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Don't -- don't you think the Framers were aware of the fact that although there were law enforcement abuses, Raleigh's case and so on, there were also abuses every day of the week on the part of people who gave false testimony because they had grudges against the defendant? Do you think that was totally out of the minds of the Framers so as to support the distinction that -- that as a general rule you were suggesting?
05-5705 +++$+++ 43382 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't know exactly all of the details that would have -- that they were contemplating.
05-5705 +++$+++ 43383 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But why would -- why would we impute that -- that unconcern to the Framers about the -- the need to test statements which may very well have -- have been given because of envy, grudge, and so on?
05-5705 +++$+++ 43384 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because of -- of what we do know and what Crawford said that we do know, which is that we know that they were responding to things like Raleigh's trial and to Stamp Act, you know, enforcement, other --
05-5705 +++$+++ 43385 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but doesn't -- doesn't that get us back to the fact that those examples were given in Crawford as paradigm examples, if, you know, those were -- I think the word poor was used. But -- but Crawford was not limited to that, and if it's not limited to that, why, in effect, does the -- does the -- should we conclude that the concern of the clause stops short of the self-interested witness even though he didn't make an affidavit?
05-5705 +++$+++ 43386 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, if I may be permitted to finish. The methodology -- the methodology of Crawford is to look for known circumstances of abuse, about which the Framers were concerned, and we don't have that sort of historical evidence more generally.
05-5705 +++$+++ 43387 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Gornstein.
05-5705 +++$+++ 43389 +++$+++ FALSE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: We are asking the Court to apply the same standard to statements made to officers at the scene as to statements made during a 911 call. If the statement is made in response to police questions that are reasonably necessary to determine whether an emergency exists --
05-5705 +++$+++ 43390 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ May I ask, under your view, was the affidavit admissible?
05-5705 +++$+++ 43391 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The affidavit is not admissible.
05-5705 +++$+++ 43392 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Why not?
05-5705 +++$+++ 43393 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The affidavit is -- is not admissible because, by that point, the officer had the information that he needed to resolve the emergency, and what he was soliciting at that point --
05-5705 +++$+++ 43394 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would suggest the reason it was not admissible is it's very clear that the affidavit is the testimonial statement by a witness that the defendant had a right to confront. The constitutional right is the right to confront the witnesses against him.
05-5705 +++$+++ 43395 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I was just getting to that, Justice Stevens --
05-5705 +++$+++ 43396 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh.
05-5705 +++$+++ 43397 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that the -- the emergency was resolved, and at that point, he was --
05-5705 +++$+++ 43398 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But you say if the officer independently repeats what is said in the affidavit, then he's the witness against rather than the --
05-5705 +++$+++ 43399 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, not -- no. He's -- he's not -- if he was repeating what was said in the affidavit, that's a different point. He's repeating the statement that was made before the affidavit was given. That was at a point at which the -- there was still an immediate danger and that he was asking a question that was reasonably necessary to determine whether that danger existed and, if so, how to resolve it.
05-5705 +++$+++ 43400 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What was the immediate danger?
05-5705 +++$+++ 43401 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ When -- the immediate danger was --
05-5705 +++$+++ 43402 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, there's the policeman in the room across the kitchen table from -- from the woman.
05-5705 +++$+++ 43403 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The --
05-5705 +++$+++ 43404 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He's not on the end of a phone line. He's in the room across the kitchen table.
05-5705 +++$+++ 43405 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. And -- and the problem here is what the danger was what would happen if the officers left. When -- when the officer came in and saw a frightened Ms. Hammon, he saw wreckage on the floor, he had reason to be concerned that there was a very recent attack on her and that if he left the scene, that attack would be renewed. Asking Ms. Hammon what happened was reasonably necessary to determine whether that emergency existed and, if so, how to resolve it. Now, once he had that information, he had what he needed to resolve the emergency, and at that --
05-5705 +++$+++ 43406 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In a situation like that, what was needed to resolve the situation, if he believed what Mrs. Hammon said, was to arrest Mr. Hammon. Right?
05-5705 +++$+++ 43407 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
05-5705 +++$+++ 43408 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So he could -- you think he could gather as much evidence as was necessary to arrest Mr. Hammon.
05-5705 +++$+++ 43409 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do not. At some --
05-5705 +++$+++ 43410 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Why -- why not? Why doesn't that follow?
05-5705 +++$+++ 43411 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, at some point, what -- what turns into emergency resolution moves over into interrogation, and once you reach interrogation, then you have reached the core of what Crawford talks about --
05-5705 +++$+++ 43412 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ How do we know when that line is crossed? You said reasonably necessary to protect safety. That's okay. Interrogation is not good. But how -- how does one tell when one stops and the other starts?
05-5705 +++$+++ 43413 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think this is going to be a line-drawing question, but when you have a situation like this one where you have an officer who's just on the scene in the immediate wake of a -- of a domestic dispute, he asks a single question, what happened, in -- in circumstances in which he needed to know the answer to that question to make sure he could leave and leave her there safely. That's not interrogation. If he sat around for a half hour with a back-and-forth and give-and-take and trying to press and get to the situation in that kind of back-and-forth, that would be interrogation colloquially. And it's -- it's that kind of line that the Court is going to need to draw.
05-5705 +++$+++ 43414 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Why? Because he might be interrogating with no idea at all primarily in his mind of later court appearance. He wants to find out if there are guns in the house. He wants to find out if there are other people in the house. He wants to find out if somebody is being held captive. He wants to find out if these are the same people who did some other crime that's immediately taking place, what's the relationship. There are all kinds of interrogation. You're saying that all that interrogation by a policeman can't come in under the Confrontation Clause.
05-5705 +++$+++ 43415 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Confrontation Clause bars under Crawford police interrogation. And the -- the situation is one in which we are not going to be able to examine the individual motives of officers in every case and individual declarants in every case. What we are looking for is a categorical rule that is going to capture the likely motivations in both cases, and when you have emergency question, you're likely dealing with the situation with -- both from the officer's side and from the declarant's side, you're going to be having people attempting to resolve an immediate danger of harm. And you get --
05-5705 +++$+++ 43416 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that assumes -- this -- your -- your focus on whether the -- you know, the -- it's an interrogation or not -- it -- it assumes that the only focus of the Confrontation Clause is on prosecutorial abuse somehow. And -- and as -- as Justice Souter was suggesting, I don't think that was the exclusive --
05-5705 +++$+++ 43417 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, we don't -- we don't think that's the exclusive focus either, and we think interrogation can capture both, too, that when you get to the point of interrogation, what's happening with the witness is getting an increasing understanding that what this is being sought for is to build a case. I think the biggest problem with the -- the two rules that are proposed on the other side, that is, the accusation rule and the reasonable anticipation rule, is it captures within a -- these emergency statements that really don't have -- fall within any ordinary understanding of what testimony is. If I go to my house and it's late at night, I hear suspicious noises, and I see somebody and get a partial description of him, and I call 911, I'm seeking to avert an immediate danger to myself. I don't think under any stretch of the imagination anybody would refer to that as testimony. Yet, under his rule --
05-5705 +++$+++ 43418 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course, the Sixth Amendment doesn't use the word testimony, does it?
05-5705 +++$+++ 43419 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it does not. But what the Court said in Crawford was that the term witness was referring to -- that people can make testimonial statements --
05-5705 +++$+++ 43420 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And maybe that -- and maybe you're not a witness when you make the call, but when that same call is admitted into court, then -- then it strikes me that you are a witness.
05-5705 +++$+++ 43421 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but that's not the definition of witness that -- that Crawford adopted. That would be --
05-5705 +++$+++ 43422 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As it happens in the other -- in the companion case today, the prosecution itself, in its summation to the jury, referred to the 911 call and said, you have heard the testimony of -- of the victim and referred to it as testimony.
05-5705 +++$+++ 43423 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, if he --
05-5705 +++$+++ 43424 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, it's not beyond the pale to consider this testimony.
05-5705 +++$+++ 43425 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- if -- if he -- he had made a statement about a co-conspirator's statement during the course of the conspiracy and he had said, we have here the testimony of the -- his co-conspirator, that would not make it testimony. And if the -- the 911 call --
05-5705 +++$+++ 43426 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but it would prove that -- that it's not beyond the pale to call it testimony.
05-5705 +++$+++ 43427 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it just does not make it testimony. And if it -- the prosecutor in the 911 case had said, I don't have her testimony, I have something better, it's a 911 call --
05-5705 +++$+++ 43428 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Gornstein?
05-5705 +++$+++ 43429 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of a cry for help, that wouldn't make it not testimony. And I don't think --
05-5705 +++$+++ 43430 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Gornstein, is this a fair summary of your position, if I may? We're really asking who's the witness that's being testified against, and when it's the affidavit, it's clearly the woman that's a witness there where it's inadmissible. But your view, as I understand you, is when it's the officer who is the witness, he's subject to cross examination, and as long as the emergency continues and he's describing what happened during the emergency, he's still the witness. That's what you're saying, I think.
05-5705 +++$+++ 43431 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He's -- he's still a --
05-5705 +++$+++ 43432 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He's still the witness we're concerned about.
05-5705 +++$+++ 43433 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He is the witness --
05-5705 +++$+++ 43434 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Therefore, he's subject to cross examination.
05-5705 +++$+++ 43435 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He's the -- he's the -- he is subject to cross examination.
05-5705 +++$+++ 43436 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And so during the emergency period, he can repeat what she said.
05-5705 +++$+++ 43437 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I -- what I'm saying is that she's not a witness during the emergency period itself.
05-5705 +++$+++ 43438 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand what you're saying.
05-5705 +++$+++ 43439 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It has to be both.
05-5705 +++$+++ 43440 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That we focus not on whether it's testimony but whether he's the witness at the critical time or whether she's the witness.
05-5705 +++$+++ 43441 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I think that that's one way of looking at it, Justice Stevens, but --
05-5705 +++$+++ 43442 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's not the way the Court looked at it in Crawford.
05-5705 +++$+++ 43443 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I -- I think that what you would look to see is if, at the relevant time, that -- that the declarant was acting as a witness. And at the relevant time, when somebody is answering a question to avert an immediate danger, they're not acting as a witness. They're not making a solemn declaration for the purpose of proving facts to support a prosecution, and so they're not acting as a witness in those circumstances. And -- and it's only later, when the officer turns to soliciting from Ms. Hammon an affidavit, that what he's soliciting at that point is a solemn declaration made for the purpose of proving facts to support a prosecution. Now, that's testimony.
05-5705 +++$+++ 43444 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure that the two were -- were as separated as you -- as you claim. I -- I took it that the affidavit -- while he was getting the oral responses, he was writing down what -- what would be put in the affidavit.
05-5705 +++$+++ 43445 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that there's any evidence in the record to support that, Justice Scalia. That -- that -- what happened is that he took -- that he listened to her oral statement and then he proceeded to ask for -- her for an affidavit, after he had the information that he needed to resolve the emergency, was to figure out how he was going to protect this person from an immediate renewed attack if he left the scene.
05-5705 +++$+++ 43446 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But under your test, the whole question is whether the emergency continued at the time the witness' words are being repeated.
05-5705 +++$+++ 43447 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not the whole question because if the statement -- the question has nothing to do with and the answer had nothing to do with the emergency. It does not come in under the rule we're talking about.
05-5705 +++$+++ 43448 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I'm not arguing that. I'm trying to figure out -- I think I have a little different angle on it than you actually said in your brief or actually in the text of Crawford. Of course, Crawford wasn't confronting this problem. It described everything as testimonial, but the real question is who's the witness under the text of the Constitution.
05-5705 +++$+++ 43449 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Stevens, I'm --
05-5705 +++$+++ 43450 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I think your argument is --
05-5705 +++$+++ 43451 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I'm happy to have your approach if it -- if it leads to five votes in this case.
05-5705 +++$+++ 43452 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think I'm trying to help you. (Laughter.)
05-5705 +++$+++ 43453 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I know it didn't start out that way, but it seems to me I'm helping your side of it. Yes.
05-5705 +++$+++ 43454 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Gornstein. Mr. Friedman, you have 4 minutes remaining.
05-5705 +++$+++ 43456 +++$+++ FALSE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I think that whenever there is a -- an out-of-court accusation repeated, there is a witness in court, but that is not the witness that -- or that doesn't satisfy the confrontation right because there's the -- the --
05-5705 +++$+++ 43457 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, but you would agree that the officer could testify to some of the things that happened during the emergency, and he's a witness to that extent.
05-5705 +++$+++ 43458 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, absolutely, the officer was --
05-5705 +++$+++ 43459 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the question is whether he can cover this as well.
05-5705 +++$+++ 43460 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's -- that, of course, is the -- that -- that's the question. But -- but she was acting as a -- a witness when -- when she made the accusation to -- to the officer, and characterizing it as an emergency I don't think helps anything in -- in this case. The -- the fact is that if we extend the emergency this far it shows -- well, it shows just how capable of expansion the -- the theory is because there is an officer with her and there is an officer with -- with him. So the -- the only question is should the officers leave. That means that whenever there's -- there's a victim potentially at large there, the confrontation right wouldn't -- wouldn't apply. The -- the whole emergency doctrine really distorts incentives because a -- a police officer who has a -- a dual motive of creating -- of protecting people, protecting the safety of -- of people and gathering evidence -- and I think it's clear that they do -- under an emergency doctrine, would have an incentive to preserve the emergency or the appearance of emergency for -- for as long as -- for as long as possible. And I -- I think the -- the State encourages people to call, which of course they should do, but in part the reason why people are encouraged to call is to -- is to create -- is to pass on -- is to pass on evidence. So I don't think that even if -- even to the extent that the call is a -- a cry for help, well, the help is -- is seeking invitation of the -- of the legal system. In the Davis case, of course, it was an arrest. In -- in this case, the -- the statement was not a cry for help. It was in response to the second inquiry by the police officer. The police officer was -- was pressing. And -- and I -- I think the -- the emergency doctrine simply -- simply can't -- if -- if there were an emergency doctrine, I think it's just badly founded and couldn't apply here. If it please the Court, I believe Crawford has brought us to a remarkable crossroads. If the accusation in this case is allowed to secure a conviction without the State providing an opportunity for confrontation, then the Confrontation Clause will be little more than a charade, easily evated by State officers gathering evidence. But if the Court proclaims that a conviction cannot be based on an accusation made privately to a known police officer, then it will take a long step to ensure that the confrontation right remains robust, as the Framers intended for centuries to come.
05-5705 +++$+++ 43461 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What about the resemblance idea to get around your problem? Of course, it's not purely formal. It's purely formal, plus those things that resemble what's purely formal.
05-5705 +++$+++ 43462 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure I quite understand.
05-5705 +++$+++ 43463 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Listen -- it's purely the formal criteria, plus anything that's the same. Now, same is vague, but it's no vaguer than a lot of other things floating around here today.
05-5705 +++$+++ 43464 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-5705 +++$+++ 43465 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So what do you think of that?
05-5705 +++$+++ 43466 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I -- not much, Your Honor. (Laughter.)
05-5705 +++$+++ 43467 +++$+++ TRUE +++$+++ MR. FRIEDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I don't think an accusation to a known law enforcement officer is awfully vague. Any legal term will have some -- some vagueness around the edges, but I don't think there's much. Resemblance is awfully vague. I think what happened here resembled the inquisitorial practices in the key -- in the key -- in a key respect. And I don't think the test Your Honor is proposing handles the message over the Internet or -- or a letter, the -- the tape made at the initiative of the -- of the witness. I think it -- it utterly fails to get that because the -- the prosecutors aren't involved. But clearly the Confrontation Clause was written against the backdrop of private prosecution, the system of private prosecution. So it has to get those clauses. I -- I think that this case can be resolved on those very narrow grounds without trying to establish the broad, general meaning of the Confrontation Clause. I'm -- I'm hoping that the Court is building a framework for hundreds of years to -- to come, and I think it's more important that it be built right than that it be built quickly. And so I think an important first step is to say an accusation to a known police officer, whatever else is testimonial, that clearly must be. If there are no further questions, I'm pleased to submit the case.
05-5705 +++$+++ 43468 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
05-593 +++$+++ 43472 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument first this morning in Osborn v. Haley. Mr. Grant.
05-593 +++$+++ 43474 +++$+++ FALSE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The court of appeals misinterpreted the Westfall Act in a way that unfairly deprives tort plaintiffs of the most basic procedural protections routinely afforded in both Federal and State courts. That misinterpretation cannot be reconciled with the text and history of the statute, the nature and operation of official immunity or the jurisdictional limitations of article III. Accordingly, the judgment of the court of appeals should be reversed and this State law case should be remanded to the State courts where it rightfully belongs. In the alternative, the court of appeals judgment should be vacated for lack of appellate jurisdiction. Prior to the Westfall Act, courts considered whether, assuming the alleged acts occurred, the Federal employee was acting within the scope of his employment. Official In Westfall v. Erwin, this Court added the additional requirement that the acts be undertaken with a discretionary function, but invited Congress to address the issue. In responding with the Westfall Act, Congress did not change the basic rule that scope of employment sets the line for immunity. Indeed, Congress confirmed that rule. In particular, Congress gave no hint that it was radically rewriting the rules to direct Federal district courts to determine the merits of wholly State law claims in some sort of unprecedented summary proceeding.
05-593 +++$+++ 43475 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why is it a wholly State law claim if the principal matter is whether this Federal employee is immune from suit? That's the threshold question that has to be answered. It's determined wholly by Federal law, so you must get through that Federal law gateway before you can go any place else in the suit.
05-593 +++$+++ 43476 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, that is true in perhaps a majority of Westfall Act cases, but in cases like this and a significant and recurring subset of cases there is no Federal law question because scope of employment simply is not at issue. What the Government does in those subset of cases is merely to assert the defense of he didn't do it or it never happened. Official
05-593 +++$+++ 43477 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that -- it's not it never happened as though the Federal employee was off in Hong Kong. He was there on the premises. He is claiming that whatever he did was within the scope of his authority. It seems like it's a question of phraseology that you're dealing with.
05-593 +++$+++ 43478 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect, Your Honor, that is not the case, certainly in this case and in others. The Government has conceded that if Respondent Barry Haley acted as alleged in the complaint he was acting outside the course and scope of his Federal employment.
05-593 +++$+++ 43479 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I think Justice Ginsburg's point, and it concerns me as well, is that the Government is entitled to say that during the time the event occurred, i.e., the firing, he was on duty and he refrained from committing any unlawful act.
05-593 +++$+++ 43480 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, there may be cases where even if the acts occurred, they were within the course and scope of the Federal employment. But in the case like this, as in Wood versus United States, as in Melo v. Hafer in the Third Circuit, the Government concedes, because the law and the facts require the Government and the employee to concede, that if the alleged acts took place they were necessarily outside the scope of employment. Official
05-593 +++$+++ 43481 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the actual statutory language refers to acting within the scope of employment at the time of the incident, and so a certification based on the view that at the time of the alleged incident, he was acting entirely within his scope would seem to be within the language of the statute.
05-593 +++$+++ 43482 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, on its face the certification in this case, as in others, tracks the statutory language. But when the Government's position was examined in the district court, it became apparent that the Government's essential defense, in fact supported by two declarations, including the declaration of Respondent Haley, was that he simply did not do the acts alleged.
05-593 +++$+++ 43483 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but the question is what the district court should examine, and the statute talks about the incident out of which the claim arose. So that necessarily requires the Government to look at the complaint, see the incident out of which this claim arises, whether or not the claim is true, and to certify it.
05-593 +++$+++ 43484 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor --
05-593 +++$+++ 43485 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ "Out of which the claim arose" it seems to me is of some importance. But the Official dissenting judges in the First Circuit case, Wood, didn't think it was important. I'm not sure they were right about that.
05-593 +++$+++ 43486 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, this Court has consistently made a distinction between immunity and the merits. Starting in cases like Mitchell versus Forsyth in 1985 and continuing through cases like Richardson versus McKnight in 1997, the Court has consistently recognized that immunity is different from a defense on the merits. It's different from a defense of he didn't do it or it never happened. And I would say that, although the time of the incident is important, that is only one of several factors certainly under Kentucky law in determining whether something happened within the course and scope of employment.
05-593 +++$+++ 43487 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well how is it -- I mean, that line is awfully difficult to draw. You assert he didn't do it versus something else. But it's easy, let's say it's an assault case and the person says, you hit me, and the person says, well, it was entirely an accident; I was gesticulating with my hand so it wasn't, wouldn't have met the requirements for the tort. Now, are they denying the incident in that case?
05-593 +++$+++ 43488 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the Court in Wood v. United States took account of the possibilities of Official artful pleading and would allow the Government to challenge the characterization of the incident.
05-593 +++$+++ 43489 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it's not just a characterization. If it's something that has, for example, a mental element, the plaintiff can assert, you did that with malice aforethought and the defendant can say, no, I didn't. Now, is that a characterization or is that a denial of the incident?
05-593 +++$+++ 43490 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that's a characterization, Your Honor.
05-593 +++$+++ 43491 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why isn't it the denial of an element of the claim? There's no recovery for assault if the mental element is what the Chief Justice just described in his hypo, and if in fact that is an element of the claim how do you draw a distinction between that and the existence or nonexistence of any act at all.
05-593 +++$+++ 43492 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are, Your Honor, certain cases in which --
05-593 +++$+++ 43493 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I'm not asking about certain cases. I just want to know analytically how you do it or how you think we're supposed to do it.
05-593 +++$+++ 43494 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are cases in which the merits and the immunity defense overlap and in those cases the district courts are fully empowered to make Official factual findings.
05-593 +++$+++ 43495 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, in this case the immunity defense is, number one, as you said, the Government forthrightly said at the beginning right in terms of the statute that he was acting within the scope of his employment. Secondarily, as you said, the Government in effect elaborated on that and said the reason he was not acting outside the scope of his employment is that these acts which would have been outside scope didn't happen. Why is that any different from the claim in the Chief Justice's hypo that there was no intent to harm?
05-593 +++$+++ 43496 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, because a claim of, that the alleged act did not occur, that he didn't do it, is not a claim of immunity. Again, this --
05-593 +++$+++ 43497 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's a claim upon which the immunity depends. The immunity is claimed -- the immunity claimed here is that at the time in question he was not acting outside the scope of his employment. The reason he was not acting outside the scope was that he didn't do what they say he did.
05-593 +++$+++ 43498 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I'm sorry if I have the same answer to the question, but again, this Court's jurisprudence has consistently distinguished between defenses, so to speak, on the merits, a claim that the Official alleged act did not occur, that one of the elements of the State law claim is not met.
05-593 +++$+++ 43499 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In this case, if Mr. Haley had said, I had some conversations with the private employer and the plaintiff's name was mentioned during the conversations, but I never told them to discharge her, would this, would that be something -- would your argument apply there?
05-593 +++$+++ 43500 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would apply, Your Honor, if, if that factual determination were relevant to scope of employment under the applicable law, namely the agency law of Kentucky.
05-593 +++$+++ 43501 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, is it? I mean, that's -- the problem that I have with your argument, Mr. Grant, is that in life things are often not, it happened or it didn't happen. There is a middle ground, which is this officer is saying, I was there at the relevant time or place and when I was there everything that I did was within the scope of my employment, I didn't do anything that was outside the scope of my employment.
05-593 +++$+++ 43502 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are cases in which there is a middle ground, Your Honor. But this case is not one of them, and there is certainly a distinct and recurring subset of cases, like Wood and Melo and Official Kimbro, where it is conceded on the facts and the law that if the actions occurred, they occurred outside the scope of employment.
05-593 +++$+++ 43503 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't understand why anyone would want to come out the way you urge us to come out. Why would it make any sense to give a Federal employee the benefit of trial in Federal court when he committed the act, and then you debate about whether it was, whether there was liability or not, and yet deprive him of the benefit of a Federal court when he denies that he did anything at all? Why would you want one set of cases to remain in the State court and the other set of cases to go to Federal court?
05-593 +++$+++ 43504 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it's Congress that set the line at scope of employment.
05-593 +++$+++ 43505 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I mean, that's what we're debating, whether the line is there or not, and as you've seen from the discussion, there is at least some ambiguity in it. There being ambiguity, why should we find a line that doesn't make any sense?
05-593 +++$+++ 43506 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I believe that line does make sense because if the Government's view is adopted and the view of the majority of the court of appeals, the merits of the wholly State law claim will be resolved in Federal court and resolved in a Official procedural context that denies a tort plaintiff the right to discovery, that denies the tort plaintiff a right to the normal evidentiary presumptions on a motion to dismiss or motion for summary judgment, and denies that tort plaintiff the right to a jury trial.
05-593 +++$+++ 43507 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that can happen when in fact the certification of the Attorney General turns out to be wrong and there isn't any immunity. Still, the whole thing is going to be tried in Federal court.
05-593 +++$+++ 43508 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, in that situation, the merits will at least be tried under the normal provisions for discovery and evidentiary presumptions, even if it does ultimately proceed against the United States.
05-593 +++$+++ 43509 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But Mr. Grant, I'm a little puzzled. Why is the discovery in the Federal system any less valuable in the State system?
05-593 +++$+++ 43510 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because what the Government advocates here, as I think most starkly illustrated by the Third Circuit's decision in Melo v. Hafer is some sort of summary proceeding that takes place before the normal processes of Federal litigation. After all, it's the Government's position that this employee is immune.
05-593 +++$+++ 43511 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't that only summary for the purpose of deciding whether the removal was Official proper?
05-593 +++$+++ 43512 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's for the purpose of deciding scope of employment, but the Government's interpretation of that phrase encompasses essentially the merits of the case.
05-593 +++$+++ 43513 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's not for deciding whether removal -- I thought the statute says that the Attorney General's certification is conclusive with respect to removal.
05-593 +++$+++ 43514 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is conclusive, Your Honor, in those cases that truly do implicate scope of employment. In this case, by contrast, the certification was essentially to raise the he didn't do it or it never happened defense.
05-593 +++$+++ 43515 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, what does it mean to say that the certification is conclusive with respect to scope of employment for purposes of removal if it doesn't mean that it's conclusive, if you're going to have judicial review that is going to address the question of removal as opposed to the validity of the certification on the merits?
05-593 +++$+++ 43516 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it's conclusive where it satisfies the definition in the statute. What is conclusive in the final sentence of paragraph (d)(2) of section 2679 is this certification, and this Official certification of course is the one referred to earlier in that paragraph.
05-593 +++$+++ 43517 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you're saying it's only conclusive if it's right?
05-593 +++$+++ 43518 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. It's only, it can be conclusive right or wrong, but it's only conclusive if it satisfies the statutory definition, being about scope of employment, not about the merits. In this case, for example, there never will be, never could be a true scope of employment determination, the Government having conceded it.
05-593 +++$+++ 43519 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose, Mr. Grant, that the district court had said, I'm going to deny the substitution of the United States as the defendant, but I realize that this is a debatable question, so I'm not going to order a remand until the defendant and the United States have had a chance to challenge my initial ruling that I deny the substitution of the United States. Suppose that it had happened that way? Would you have any right to get back in the State court? Wouldn't that properly go to a court of appeals?
05-593 +++$+++ 43520 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, that, that could certainly go to the court of appeals under the discretionary appeal procedure in section 1292(b), or perhaps by mandamus. Official
05-593 +++$+++ 43521 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, suppose that happened, and then the court of appeals said the United States should have been substituted?
05-593 +++$+++ 43522 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would -- that would on its merits restrict the district court from remanding, but of course in this case, the district court did enter an order of remand based on its interpretation of section 2679.
05-593 +++$+++ 43523 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But your position is that the Attorney General's certification is conclusive -- is not conclusive in those situations in which the Attorney General doesn't draw the line properly between an event denying answer and an event characterizing answer? Whenever the Attorney General is wrong on that very nuanced decision in some instances, then the Attorney General's certification is not conclusive?
05-593 +++$+++ 43524 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The short answer is yes, Your Honor. The Attorney General's certification is not conclusive where it does not satisfy the statutory definition, where it is not a certification that truly implicates scope of employment. We have tried to draw the distinction between an unauthorized or improper certification, one that doesn't meet the statutory definition, and a certification as, as the Court in Aliota versus Graham said was wrong or erroneous on its Official merits, so to speak, on the facts, on the law, of State agency law.
05-593 +++$+++ 43525 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Grant, these items we've been discussing are perhaps the more important features of the case. But your argument in your brief didn't begin with those. It began with the assertion that there is no jurisdiction to review the district court's remand order at all. I take it you're not abandoning that, are you?
05-593 +++$+++ 43526 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely not, Your Honor.
05-593 +++$+++ 43527 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then why was it first in your brief and not first in your argument?
05-593 +++$+++ 43528 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was first in my brief because this Court ordered me to brief and address it, and I was happy to do so. The court of appeals in fact did lack jurisdiction in this case. This Court has made clear as recently as the Kircher opinion last term that section 1447(d) means what it says. And in this case, the district court entered an order remanding the case to the State court from which it was removed, and 1447(d), of course, bars review of that order by appeal or otherwise.
05-593 +++$+++ 43529 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There is at least considerable tension with 1447(d), though, and 2679(d)(2), in that that specifically says that for Official purposes of removal, the Attorney General's certification is conclusive. And it doesn't, if you look at 2679, it suggests, you'd think that case would proceed in Federal court rather than be immediately remanded without the availability of review.
05-593 +++$+++ 43530 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, on the merits of the interpretation of 2679(d)(2), we tried to explain why conclusive does not operate in a case like this, but I think the important point for jurisdiction is that this Court has consistently said that even if a district court misinterprets a jurisdictional statute, that review is nonetheless barred by section 1447(d).
05-593 +++$+++ 43531 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ This is a different type of jurisdictional statute in that there is concern on Congress's part here to provide a Federal forum for the adjudication of whether something is within the scope of a Federal employee's duty. It's not inconceivable, but it would seem illogical to specifically provide for review of that determination but then have that review take place in State court rather than Federal court.
05-593 +++$+++ 43532 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, Congress obviously knows how to make exceptions to section 1447(d). I believe it was footnote eight of this Court's opinion in Kircher that cited a number of Official examples. The Government in its brief relied on 12 U.S.C. section 1441(a), and that statute which involved the Resolution Trust Corporation specifically refers to appeal and remand. And so what this Court has said is, the bar of section 1447(d), which has been around for more than a century, is not to be ignored unless there is a clear statutory command that makes an exception.
05-593 +++$+++ 43533 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But here not only, not only does it say that the Attorney General's certification is conclusive for purposes of removal, but there is no mention about remand in relation to a case that is removed after the Attorney General's certification. Whereas by contrast, where the Attorney General doesn't certify and the case is removed, the statute does address the issue of remand. So if you put those two things together, isn't it perfectly clear that Congress did not want these cases that are removed on the Attorney General's certification to be remanded?
05-593 +++$+++ 43534 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. The authority to remand in this case proceeds from subsection C of section 1447. As this Court has said in various cases, including the International Primate Protection League case in 1991, when a Federal district court lacks subject matter jurisdiction because a case, a party attempting to remove has done so without authority to do Official so, section 1447(c) obliges a remand.
05-593 +++$+++ 43535 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I would have thought your answer would have been even if, even if the remand was improper, even if it is the case that, what is it, (d)(2) envisions that the suit remain in the Federal court. Nonetheless, if there is an erroneous remand, it is still a remand that is covered by the prohibition of review. I mean, we said in other cases that even when the remand is wrong, the remand is not reviewable.
05-593 +++$+++ 43536 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is my answer, Your Honor. Section (d)(2) goes, gives direction to district courts, but section 1447(d) gives direction to appellate courts.
05-593 +++$+++ 43537 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If that's your answer, can I go back to the other main issue for a second? I would have thought that your case, unfortunately for you in my mind, is the classic case where there should be jurisdiction because the AG is supposed to say look, I don't think anything happened, okay? So he was doing his job all day. But if something did happen, I'll tell you what, it was within the scope of his employment. And apparently, that's just what they did say here. And then it got mixed up in the courts below. In other words, if he made some phone calls and even if he mentioned the employee, even if he said something improper, it was within the scope of his employment, Official which is just what they said. So because of that, it seems to me this makes a lot of complexity out of nothing. Now you explain what your answer is.
05-593 +++$+++ 43538 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, with respect, I believe the Attorney General said just the opposite, that --
05-593 +++$+++ 43539 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In the district court he didn't say, if something happened here, it was in the scope of his employment? I thought he had. Maybe he hadn't. I thought he had, but I'll ask him that.
05-593 +++$+++ 43540 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor --
05-593 +++$+++ 43541 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In the district court I thought he said that.
05-593 +++$+++ 43542 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Attorney General's submission, the Government's submission in the district court was that nothing happened.
05-593 +++$+++ 43543 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it was there first, but you can argue in the defense alternative, I think nothing happened. But if the plaintiff can convince a jury otherwise, fine, but then what they can convince him of is within the scope of his employment. Now did that happen in the district court, that they said something like that or not?
05-593 +++$+++ 43544 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the Government did make what it called an alternative argument. Official
05-593 +++$+++ 43545 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, why can't they do that, which is just what Wood says they can do, if anybody, you know, thinks that's valid? But the -- what's the problem then? Because I would have thought that the reason this case appears difficult is because yours is a case where the AG should be able to come in and remove it.
05-593 +++$+++ 43546 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The district court, the very same district court that the Government so, so desperately wants to review the facts of this case, said that given Mr. Haley's declaration under penalty of perjury, it would not accept that alternative.
05-593 +++$+++ 43547 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it's wrong in that, isn't it?
05-593 +++$+++ 43548 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the Government did not appeal that point in the court of appeals, and in fact --
05-593 +++$+++ 43549 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, the Wood issue was the issue of where if anything happened, of course it's outside the scope. It's like one employee shoots another, you know. There is nothing to do with scope of employment there, it's plainly outside. And of course, this act, in my view then, then, was that this is not an act that allows the AG to defend that kind of thing. But if it's arguable at least that something happened, if it happened at all it was within the scope of Official employment, the AG can defend it.
05-593 +++$+++ 43550 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the Government --
05-593 +++$+++ 43551 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What's the problem with -- there should be a problem with what I say from your point of view, so --
05-593 +++$+++ 43552 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the problem is in the record, Your Honor, and the Government's brief at the, at the petition stage on page 14 in note five quotes its own appellate brief in the court of appeals, and that brief says the memorandum of understanding between the Forest Service and the private respondent showed that if Haley did cause the contractor to fire Osborn, he acted outside the scope of his employment. And the court of appeals quite logically took that --
05-593 +++$+++ 43553 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you're saying they have abandoned the argument?
05-593 +++$+++ 43554 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They have Your Honor and the court of appeals recognized that on page 3a of the petition appendix. If the Court has no further questions I'd like to reserve the balance of my time.
05-593 +++$+++ 43555 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Grant. Mr. Hallward-Driemeier.
05-593 +++$+++ 43557 +++$+++ FALSE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice Official and may it please the Court: In the Westfall Act Congress provided an absolute immunity for Federal employees for acts taken within the scope of their employment and it went further and provided that when the Attorney General certifies that the employee was acting within the scope of his employment at the time of the incident out of which the claim arose, that that issue of Federal immunity is to be decided by the Federal court. It is the Attorney General's assertion of this Federal defense of immunity that satisfies article III just as the employee's own assertion of immunity satisfies article III under the Federal Officer Removal statute and just as a, in other circumstances a plaintiff's assertion of a claim under Federal law satisfies article III.
05-593 +++$+++ 43558 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So what if the Attorney General certifies and removes a case in a criminal case, a case clearly not within the statute? What happens then?
05-593 +++$+++ 43559 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that the, the -- that would probably be a defect in removal procedure rather than a jurisdictional defect but even if it is --
05-593 +++$+++ 43560 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, no, on the Official procedure, he follows the procedure meticulously; it's just wrong. It's a criminal case. The statute says he can do it in a civil case. On the other hand the statute also says that his certification is conclusive.
05-593 +++$+++ 43561 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor even if that is a case that would be removed without jurisdiction, that case is quite different from this case because this case --
05-593 +++$+++ 43562 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, this one is a civil one and that's a criminal, but I'm just trying to understand how broad your argument that this is not subject to further review goes.
05-593 +++$+++ 43563 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the issue that is not subject to further review for purposes of jurisdiction is the Attorney General's certification that the employee was acting within scope. The statute doesn't provide that the Attorney General's certification that it is a civil action is conclusive but only the Attorney General's certification that the employee was acting within scope is conclusive for purposes of removal. That's the essential element of the Federal defense and that's what satisfies article III jurisdiction. And in fact, this Court in the Willingham case recognized that an employee could assert a claim of Federal immunity even though he was also at Official the same time denying that he caused any harm to the plaintiff.
05-593 +++$+++ 43564 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well I thought your analogy to Willingham was a strong one until you go back and read the statute. Willingham is a very different statutory predicate. It's acting under color of law. This is much more specific. At the time of the incident, he was acting within his scope, so I'm not sure the analogy holds up.
05-593 +++$+++ 43565 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well if anything the language of the Westfall Act is broader because as Your Honor emphasized earlier, the statute, the Westfall act provides that the Attorney General is to certify that at the time of the incident out of which the claim arose the employee was acting within the scope. So arguably the necessary question is what was the employee doing at the time. The Federal Officer Removal statute is somewhat narrower because it requires that the claim arise out of the, the acts taken under color of office.
05-593 +++$+++ 43566 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But yet that would be a good argument if the statute said the Attorney General can certify that the employee did not do anything outside the scope of his employment, but it's phrased in the affirmative. He has to certify that he was acting within the scope of his employment. Official
05-593 +++$+++ 43567 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. And that's what the Attorney General did here, certified that Mr. Haley was acting within the scope of his employment at the time of the incident out of which the claim arose. And as several --
05-593 +++$+++ 43568 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So that's the issue then. And what I -- is my, my question for you is this, let's imagine not this case, which as I said I think is too complicated and probably is one that the Government should be able to defend, but suppose it's an assault like Wood's, a sexual assault and there is absolutely no doubt that if it happened it was outside the scope of employment, everybody concedes it but Government. And the Government's position is, nothing happened. All right? Nothing happened. You say Government, would you like to argue that if something happened, and they may be able to prove something, something like a movement? No, we agree there was nothing like that, we agree nothing like that happened; we are not going to defend on any scope of employment ground. All we are arguing is that ordinary work went on and that was within the scope of employment. Now, does this act cover it or not? Your view is yes and you read, you know I thought it was a close question but you read what I thought the other way in Wood, though it was obviously a close Official question. So what is your basic response to that?
05-593 +++$+++ 43569 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You are correct that our view is that yes, the Attorney General can certify in that case. The issue is really one along a continuum as I think Your Honor has recognized. Of on, on the one extreme, one might say that the Attorney General must accept all of the plaintiff's allegations as true. And, and I don't think that anybody here is arguing that.
05-593 +++$+++ 43570 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That was the position of the district court, though, wasn't it?
05-593 +++$+++ 43571 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was the position of the district court, although I don't think the Petitioner is now advocating that view. And that view would certainly be inconsistent; it would create the anomaly that the Attorney General's authority to certify scope and to assert the immunity on behalf of the employee would be narrower than the employee's own authority to assert the immunity, because again going back to the Willingham case, the Court never asked whether it would be within the scope of employment for the prison officials to have maliciously tortured the prisoner; rather the defense was we didn't harm the prisoner but anything that happened between us and the prisoner happened within the scope of our employment. And so the Official Attorney General's authority to certify has to be at least as broad as that in our view.
05-593 +++$+++ 43572 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The basic point I think in Wood is this. I'm the district judge. And the Government, you come in and argue in the alternative. Nothing happened, but if it did happen it was within the scope of employment and they say there is no possibility. You'd say, plaintiff, I want to know here if there is a reasonable chance, maybe any chance, that a jury could find that something went on here that was within the scope of employment that shouldn't have. And if the answer to that question is no, the defendant wins either because of summary judgment or because -- no, sorry. I've gotten lost in what I said. Do you follow it?
05-593 +++$+++ 43573 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- I think I do. In our view --
05-593 +++$+++ 43574 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. Good, I'm glad that someone did. [Laughter.]
05-593 +++$+++ 43575 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In our view, it would be anomalous that the, that the more innocent employee would be deprived of the benefits of the Westfall Act, and if I could use a more simple --
05-593 +++$+++ 43576 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I was talking really about Official practicality of it. I don't think you can give me a case that is going to be hard for me as a district judge to decide because I'm going to ask you, the Government, to tell me if anything went on here that might have been within the scope of employment. And I look at what you're saying; if you say no, if you say no you can't defend it. If you say yes, you can defend it and that's going to be the end of it as long as your view is based on a reasonable reading of the record.
05-593 +++$+++ 43577 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think that that could be the end of it. As Justice Ginsburg pointed out, reality is much murkier than the black or white and even in the hypothetical that Your Honor poses, it is quite possible that as the case progresses, the plaintiff is going to attempt to introduce evidence that is much more ambiguous as to whether the employee was acting within the scope or not. If I could use a simple example of assault. If the, if a supervisor is dressing down her employee for, for inadequate work, the employee then sues the supervisor alleging that she assaulted her, shaking her fist right under her nose, threatening harm to her. Even if that would be outside the scope of employment, the employee might say -- the supervisor rather might say, I never raised my hand at all. I raised my voice Official certainly but I never raised my hand. A third party witness may say well I saw the supervisor wag her finger at the employee but not in a threatening fashion. Now --
05-593 +++$+++ 43578 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And as long as a jury could find that there is a view of the record such that the plaintiff might prove something wrong that it was within the scope of employment, such as finger wagging that hits her forehead, for example, you can defend it. What's the problem?
05-593 +++$+++ 43579 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if the employee --
05-593 +++$+++ 43580 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The only problem is if you admit that you can't prove anything like that.
05-593 +++$+++ 43581 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the employee was acting within the scope of the employment when she wagged a finger, then a fortiori she was acting within the scope of her employment when she didn't raise her hand at all.
05-593 +++$+++ 43582 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, not a fortiori, for the reason that Congress wrote this statute not to give the defendant the right to call in the Government to defend him no matter what he did. The reason that Congress wrote the statute was to repeal the Westfall case, which was a question of the scope of immunity, which was the question of the scope of Government responsibility to Official take away that limited determination in Westfall. That was the only point. Congress could have written a statute the way. What's your response to that?
05-593 +++$+++ 43583 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But Congress made, established an absolute immunity where the employee was acting within the scope of employment, and Petitioner agrees that scope of employment is the essential question for immunity. So if in my hypothetical the supervisor was acting within the scope of her employment when she dressed down, raising her voice but not raising her fist, her, her subordinate, then she is protected by the Westfall Act from a claim arising out of the context of that employment.
05-593 +++$+++ 43584 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But what happens in a case where the certification is clearly wrong? I mean, you get into a fight with your neighbor. It's got nothing to do with your employment at all but the Attorney General certifies that it does. You know: "They are always thinking about your cases. You must have been thinking about it at the time." That certification goes into the district court. The district court looks at it and says this is ridiculous, throws it out, then that State law assault case proceeds in Federal court?
05-593 +++$+++ 43585 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the Official Congress enacted the Westfall Act against the presumption of regularity of Federal officials and that is of course what this Court has often said as well, and so I don't think we should construe the statute on the presumption that the Attorney General would, would certify ridiculous cases.
05-593 +++$+++ 43586 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well what about the, Lamagno, where the question was, was the employee working within the scope of his employment or was he off on a frolic of his own? I think that's the kind of question that the Chief Justice put to you. The certification, if it were wrong, the Attorney General said what he was doing was within the scope of employment and turned out he was on a drunken binge with his friends and they got in his car and killed someone. If that certification within the scope was wrong and instead he is on a frolic of his own, then the United States isn't substituted.
05-593 +++$+++ 43587 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. That would mean that the district court did not on the merits ultimately uphold the defense of immunity, but as the Court said in Mesa, the merits of the immunity defense have nothing whatsoever to do with the question of jurisdiction.
05-593 +++$+++ 43588 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought that that case Official was about, was the certification reviewable?
05-593 +++$+++ 43589 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. Lamagno was about whether the certification was reviewable. Your Honor is also correct about the facts of that case. One of the points of dispute between the Government and the plaintiffs there was whether Mr. Lamagno was drunk at the time of the accident, and, and the Attorney General certified on his understanding that Mr. Lamagno was not drunk. And that was upheld by the district court on remand after some discovery and summary judgment type litigation.
05-593 +++$+++ 43590 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But the Court said that that could be reviewed.
05-593 +++$+++ 43591 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. It can be reviewed and the Attorney General's certification is not conclusive for purposes of the substitution.
05-593 +++$+++ 43592 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right.
05-593 +++$+++ 43593 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is conclusive for purposes of the court's removal jurisdiction.
05-593 +++$+++ 43594 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What does that mean? Does that mean that if the district court finds that in fact the defendant was not acting within the scope of his employment, the United States is eliminated as the defendant and the individual employee is resubstituted?
05-593 +++$+++ 43595 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. Official That's what happened. But, and in that --
05-593 +++$+++ 43596 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where, where does that come from?
05-593 +++$+++ 43597 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the procedure for what happens upon the district court's review is not spelled out in the Westfall Act, neither is the review itself in particular. But the, the employee --
05-593 +++$+++ 43598 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Maybe the United States should remain the party defendant and the United States should pay which would be the, you know, the price of the Attorney General's certification. He should be careful what he certifies.
05-593 +++$+++ 43599 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the uniform view of the lower courts is that when the certification is overturned, the effect is to resubstitute the employee as the defendant and it proceeds in Federal court as a pendent claim. The Attorney General's assertion of the defense of immunity which we presume to be colorable because we presume regularity by the Attorney General, confers article III jurisdiction on the courts, even though it may ultimately on the merits be rejected. This Court held in the Carnegie-Mellon case that the district courts have discretion whether to exercise jurisdiction over pendent claims once the Federal question has been resolved. If the courts have Official discretion to exercise that pendent jurisdiction, then certainly Congress can instruct them to exercise that --
05-593 +++$+++ 43600 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, they wouldn't have discretion in that case, though, because the statute says the Attorney General's certification is conclusive for purposes of removal.
05-593 +++$+++ 43601 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. Congress has removed the discretion in this class of cases and says that the courts must retain jurisdiction.
05-593 +++$+++ 43602 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought maybe your answer, one alternative answer, would have been that you can't remand the case but you can still dismiss it.
05-593 +++$+++ 43603 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the, perhaps, perhaps that's so. Certainly Carnegie-Mellon --
05-593 +++$+++ 43604 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It would still be conclusive for purposes of removal, but it doesn't mean it's conclusive for purposes of subject matter jurisdiction.
05-593 +++$+++ 43605 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ By its text, the statute speaks to removal and that the Attorney General's certification is conclusive for purposes of removal. But I think --
05-593 +++$+++ 43606 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Couldn't it be conclusive for purposes of removal jurisdiction, but still leave the district court with discretion to remand on the Official grounds that, although it had removal jurisdiction, in fact the premise of that removal jurisdiction was wrong, and it would therefore remand, in effect, because the only claim it had before it was the equivalent of a pendent claim.
05-593 +++$+++ 43607 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the -- as the Court held in Carnegie-Mellon, a remand of pendent claims after the Federal issue has been resolved is not a remand for lack of subject matter jurisdiction within the meaning of 1447(c). Rather, it is a discretionary remand under the doctrine of pendent jurisdiction, and so --
05-593 +++$+++ 43608 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In that case it would be reviewable.
05-593 +++$+++ 43609 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And it would be reviewable. That's why -- that's one of the reasons why the district court's order here is reviewable, because it is not an order of remand authorized by 1447(c) because, first of all, Congress has instructed the courts that they are not to remand.
05-593 +++$+++ 43610 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's, that's what the district court said it was, though, isn't it? Didn't it -- wasn't the district court remanding for lack of jurisdiction?
05-593 +++$+++ 43611 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is certainly Official true that the district court --
05-593 +++$+++ 43612 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you want us to review the, the assertion of the district court that it was remanding for, I mean that would mean every case would, would be reviewable.
05-593 +++$+++ 43613 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, because here the Court need not go beyond the face of the district court's order to understand what it was doing. The court exercised jurisdiction over the Federal question that was properly brought before it by the Attorney General's certification and this Court's decision in Lamagno. After resolving that, the district court said, having concluded that the United States is not a proper party to this case, the court must now determine whether or not it has jurisdiction, and it also said that the absence of the U.S. as a party to the case destroys the court's jurisdiction. So it's evident that the court understood that it had jurisdiction and that it was a subsequent event that deprived it.
05-593 +++$+++ 43614 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Let me go back to the Chief Justice's hypo a little earlier. Could the district judge at that point dismiss the case without prejudice to refiling in the State court?
05-593 +++$+++ 43615 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that that would be consistent with Congress's intent. The -- Official in all of the Government --
05-593 +++$+++ 43616 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It would be consistent with the court having jurisdiction to dispose of the case.
05-593 +++$+++ 43617 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is true. But I think that the intent of Congress was the same as this Court, all the members of this Court, recognized in Lamagno. In Lamagno, even the dissenters, the plurality, all acknowledged what Congress intended by the "conclusive for purposes of removal" language was to prevent the shuttling back and forth of the case. Once it was removed, it was to stay in Federal court. That was what Congress intended. And one reason --
05-593 +++$+++ 43618 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Then it's more than pendent jurisdiction, because pendent jurisdiction leaves it up to the Federal court to either retain the State claim or send it back. So this is -- what you're suggesting is something other than pendent jurisdiction.
05-593 +++$+++ 43619 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. By pendent jurisdiction what, what I meant to convey was that it is within the Court's article III jurisdiction to exercise jurisdiction over the State law claims that were pendent to a Federal claim. Under this Court's judicially developed doctrine of pendent jurisdiction, that is discretionary with the court. But if it is Official discretionary with the court, then certainly Congress can mandate that the court exercise that jurisdiction and that it would be consistent with article III. But another reason why Congress would have wanted the case to remain in Federal court even if the certification is overturned is, as we've alluded to before, the development of the case subsequent to the certification substitution decision may, may illustrate that the plaintiff's claim does indeed assert facts that were within the scope of employment. The court would at the very --
05-593 +++$+++ 43620 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, the jurisdiction wouldn't depend on that. Justice Ginsburg's point that there's more than pendent jurisdiction here I take it is because these are not separate State claims appended to what you thought was a Federal claim. This is the same claim that you initially thought was a Federal claim and then it turned into a purely State law claim, and that may be analyzed quite differently for purposes of jurisdiction.
05-593 +++$+++ 43621 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. The case is I think not distinguishable from removals under the Federal Officer Removal statute, where Congress has indicated that it is the Federal defense that confers jurisdiction rather than the Federal claim. Then, the Official ultimate merits of the Federal defense are irrelevant to the jurisdictional issue. And the Court --
05-593 +++$+++ 43622 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So you're saying there are two claims, one claim is raised by the defense, and if you look at that claim which is by definition Federal, then it's fair to look at the original State claim by analogy as a pendent claim?
05-593 +++$+++ 43623 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-593 +++$+++ 43624 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that fair?
05-593 +++$+++ 43625 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-593 +++$+++ 43626 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What happens if the Attorney General doesn't certify and it goes to State court? I take it one of the concerns we have here is that there will be a deprivation of jury trial if the certification is wrong and if it's in Federal court. Suppose that there is a denial of certification. Then under (d)(3) --
05-593 +++$+++ 43627 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ (D)(3).
05-593 +++$+++ 43628 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- the employee can ask for a certification decision. I take it that's a Federal law defense that the, or a Federal law point, that the State court must hear and so now we're back in State court?
05-593 +++$+++ 43629 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-593 +++$+++ 43630 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And we still don't have a Official jury trial and if that's so I'm not sure if that helps you or helps the Petitioner.
05-593 +++$+++ 43631 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that Your Honor's point illustrates that this issue of Federal law is one that Congress has mandated be resolved at the outset by the judge, and if the employee petitions for certification over the Attorney General's objection the statute allows the Attorney General to remove the petition to Federal court and the statute states that the district court shall find and certify whether the employee was acting within the scope.
05-593 +++$+++ 43632 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But in my case I guess I don't think it ever gets to district court because there's no certification, but then the employee can ask the State court to have a bench trial on the scope of employment. Am I right about that?
05-593 +++$+++ 43633 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He can, you are correct. It is at the option of the Attorney General under (d)(3) to remove the case at that point so that the review of his noncertification happens in Federal court. (D)(3), in stark contrast to (d)(2), provides that if the district court holds that the Attorney General was correct that the employee was not acting within the scope the case is to be remanded to State court. So the presence of the remand -- Official
05-593 +++$+++ 43634 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But my point is I suppose the Government can just say, we're not going to make the certification and we're not going to remove.
05-593 +++$+++ 43635 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-593 +++$+++ 43636 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So then the State court still has to have the bench trial on the scope of employment.
05-593 +++$+++ 43637 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
05-593 +++$+++ 43638 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm not sure if that helps. It seems to me that might be an argument for limiting the inquiry just so that we can avoid having bench trials in almost every case.
05-593 +++$+++ 43639 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- I think what that illustrates is that Congress wanted the issue of immunity resolved at the outset of the case by the court. And one reason that that is so essential under the Westfall Act FTCA scheme is that if the immunity -- if the scope of employment issue is resolved in favor of the employee, that has many, many consequences, including that the United States is the proper defendant, exclusive jurisdiction lies in the Federal court, the case must be dismissed until an administrative claim is filed and that avenue is exhausted. All of these procedural and substantive Official defenses come into play depending on how the scope of employment issue is resolved.
05-593 +++$+++ 43640 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right, but that's the strongest argument I thought the other way initially, that suppose the issue is whether he is on a frolic of his own. That you resolve in a bench trial. If the answer he was, okay, it stays in the Federal court anyway. I understand that. But if you're going to take your position whether, say, it's a sexual assault as it was in Wood and the question is well, was there a sexual assault or not, and if there was it's clearly outside of the scope of employment, well, then you're going to have all these things resolved in a bench trial and actually it's supposed to normally be before a jury, for example.
05-593 +++$+++ 43641 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that so? If the employee is resubstituted, it's going on now, the United States is not a party, just the Federal employee, but it's staying in Federal court under this pendent jurisdiction-like theory, wouldn't either party be entitled to a jury trial?
05-593 +++$+++ 43642 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Yes, Your Honor. I think Justice Breyer's question, though, had to do with the procedure at the certification review stage. That is to be done by the district court sitting Official without jury and that's because under the statute the Attorney General's certification has the legal effect of making the United States the defendant. The United States -- the action shall be deemed an action against the United States and the United States shall be substituted, and that is true unless and until the certification is overturned. And there is of course no Seventh Amendment right to jury trial against the United States.
05-593 +++$+++ 43643 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Grant, could I come back for -- I'm sorry. I have the wrong counsel. Mr. Hallward-Driemeier --
05-593 +++$+++ 43644 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'll respond to anything, Your Honor.
05-593 +++$+++ 43645 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is your response to the application of 1447(d)? You say that it does not apply where it's apparent on the face that the remand is improper?
05-593 +++$+++ 43646 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That the remand was not one of the remands authorized by 1447(c) --
05-593 +++$+++ 43647 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right, right.
05-593 +++$+++ 43648 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not just that it was erroneous.
05-593 +++$+++ 43649 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wouldn't somebody always be able to bring an appeal asserting that to be the case -- Official
05-593 +++$+++ 43650 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor.
05-593 +++$+++ 43651 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And wouldn't that destroy the whole purpose of 1447(d), which is to stop this ping-pong?
05-593 +++$+++ 43652 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, I think not. And we have two arguments that both the issues, substitution and remand, are appealable. One is a very specific one and that is that Congress has categorically taken this kind of remand outside the court's authority under 1447(c) by specifically prohibiting remand at all in 2679(d)(2), and that argument of course would not have relevance, I don't think, much beyond this case. And this Court has recognized that Congress can exempt a certain class of orders from the scope of 47(c) and (d) without cross-referencing those provisions. In the Rice case, the Court said that that specific removal provision did not purport to impair or restrict the application of the then equivalents of 747(c) and (d). But clearly 2679(d)(2) does purport to impair the authority to remand by making the certification conclusive for purposes of removal. So with that as our narrowest argument --
05-593 +++$+++ 43653 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the response to that is that our opinions show that even an erroneous remand is Official nonetheless governed by 1447(d). There are a lot of erroneous remands and this would just be, just be another one.
05-593 +++$+++ 43654 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But when Congress specifically prohibited the courts from remanding a case under 2679(d)(2) it certainly did not mean to protect a court that ignored that mandate from review.
05-593 +++$+++ 43655 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Isn't the problem, and maybe I'm missing, and I may be missing something here, but isn't the problem with your argument is that the statute didn't come out and say you can't remand. The statute said, for purposes of removal, the certification is conclusive, and that allows for the kind of dichotomy that you and I were talking with before. A court can say look, I know that I have article III jurisdiction here, but in point of fact I am, I am remanding because what you and I are calling here the pendent claim does not support any of the Government's theory. If that's the case, then under 1447(d), there could be a review of it because it was not a jurisdictional ruling. But if on the contrary, the judge said, as I think the judge said here, I am remanding because based on this analysis, I do not have jurisdiction, i.e., the judge went against the statute saying that jurisdiction is conclusive. That is an erroneous jurisdictional ruling, Official and as Justice Scalia said, we have said over and over again, however erroneous it may be, it is not reviewable.
05-593 +++$+++ 43656 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If I may, Your Honor? I think, two things: One, that there is a difference between Congress categorically prohibiting a certain kind of remand, and saying that a remand was simply erroneous. And secondly, that that argument would not go to our argument that under Waco, at the very least, the order on substitution is appealable, because it is separate and independent from remand.
05-593 +++$+++ 43657 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Grant, you have four minutes remaining.
05-593 +++$+++ 43659 +++$+++ FALSE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. As to jurisdiction, Congress knows how to make an exception to section 1447(d). All of the examples cited by the Court in Kircher, and by the Government in its brief, specifically referred, used the terms appeal and remand. The statute here contains neither of those terms.
05-593 +++$+++ 43660 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, there was nothing expressed about Thermtron, and yet we recognized an exception there.
05-593 +++$+++ 43661 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, Thermtron was a case Official where the district court did not even purport to be relying on one of the grounds enumerated in section 1447(c), namely lack of subject matter jurisdiction. In this case, of course, the district court explicitly cited both that statute and used the term subject matter jurisdiction, and the Government itself is, is not willing to go behind that. On the merits, the Government has argued this morning that the Westfall Act provides a Federal forum to assert a Federal defense of immunity. The Government has analogized this statute to section 1442(a), which allows the assertion of a colorable Federal defense, but the defense of, he didn't do it, it never happened, is not a Federal defense. It is not a defense of immunity.
05-593 +++$+++ 43662 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How about the defense of, I was on the job and everything I did on the job was within the scope of my employment?
05-593 +++$+++ 43663 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In certain cases, Your Honor, that could be a defense of immunity, but in a class of cases identified by Justice Breyer, there will be an admission. There has to be an admission under the facts and the law, that even if the alleged acts occurred, it was outside the scope of employment. In that case, the defense is purely a merits defense. And I think for this Court to say otherwise in this case would require Official overruling, or being contradictory to over 20 years of official immunity jurisprudence, where the Court has consistently distinguished between immunity defenses and defenses on the merits, where certainly the lower courts have taken that conceptual distinction and said a defense that the alleged acts did not occur do not raise an immunity defense. And so, the assertion of a defense in that case on the merits is not the assertion of a Federal defense. It is not sufficient to confer Federal jurisdiction under article III. It does not meet the definition of a statute, of the statute, which uses the phrase "scope of employment" no fewer than seven times. There is no indication that Congress in the Westfall Act intended to change the normal rules that purely State law defenses such as he didn't do it were to be decided in a Federal forum.
05-593 +++$+++ 43664 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But then you're left with this question Justice Scalia raised. If it's ambiguous, an employee says I did everything within the scope of my employment, I did nothing improper. They allege I did something improper. I didn't. I was a faithful servant. The negligent employee will be allowed the Federal forum, but the one who was a loyal, careful employee has to be in the State court. Does that make any sense? Official
05-593 +++$+++ 43665 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think that's, with respect, a misunderstanding of how the statute works. The employee who acts within the scope of his employment, whether or not he did the acts alleged, gets immunity. The employee who acts outside of the scope of employment --
05-593 +++$+++ 43666 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ This is an employee who said I never did one thing that was inconsistent with my Federal employment.
05-593 +++$+++ 43667 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's an employee who should win on the merits and will win on the merits. As Justice Kennedy recognized, there are certain applications that allow the State court to resolve even a Federal defense. We should trust that State courts will resolve State law defenses in a manner fair to their own citizens as well.
05-593 +++$+++ 43668 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Grant. The case is submitted.
05-595 +++$+++ 43672 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Whorton versus Bockting. General Chanos.
05-595 +++$+++ 43674 +++$+++ FALSE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Crawford v. Washington should not apply retroactively to cases on collateral review because it fails to meet the exacting standards for retroactivity established by this Court in Teague versus Lane. In addition, respondent is not entitled to relief under AEDPA. Teague held that new rules of criminal generally should not apply to cases on collateral review unless they fall within one of two narrow exceptions. The second exception, at issue here, is for those new watershed rules of criminal procedure without which the likelihood of an accurate conviction is seriously diminished, rules that alter our understanding of the bedrock procedural elements essential to a fair proceeding. Crawford is not a watershed rule of criminal procedure.
05-595 +++$+++ 43675 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Could you give an example, General Chanos, of one that is other than Gideon? Is there any other one, or --
05-595 +++$+++ 43676 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The only example that this Court has pointed to in its 25 years of retroactivity jurisprudence is Gideon versus Wainwright.
05-595 +++$+++ 43677 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And none other occurs to you?
05-595 +++$+++ 43678 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ None other occurs to me at this time. None of the cases that this Court has ruled are not retroactive would I find to be retroactive or watershed, and I certainly don't find Crawford to be watershed. Crawford is not watershed because it is not a rule without which the likelihood of an accurate conviction is seriously diminished and it is not a rule which altered our understanding of the bedrock procedural elements essential to a fair proceeding.
05-595 +++$+++ 43679 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I take it from your presentation you think we do have to go through the Teague analysis. We can't just rely on 2254(d)(1)?
05-595 +++$+++ 43680 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Chief Justice Roberts. I believe that you could go straight to 2254(d)(1) and bar relief under 2254(d)(1).
05-595 +++$+++ 43681 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well then, what do you do about 2254(e)(1), or I guess (e)(2), which seems to suggest at different rule if a case is made retroactive?
05-595 +++$+++ 43682 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, 2254(e)(2) provides a cause and prejudice opportunity in the event that the state court denies relief on a procedural basis rather than a substantive basis and the petitioner can show cause and prejudice under 2254(e)(2)(A). The Federal court could then look at the petitioner's claim because no merits determination had been made by the state court and, finding the cause and prejudice elements under 2254(e)(2), the Federal court would not be precluded from making a merits determination since the -- and conceivably applying a rule that had been made retroactive active under Teague -- because the state court had not made a substantive merits determination.
05-595 +++$+++ 43683 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, my point was that looking at (d)(1), it says is the decision contrary to established law. And I would have thought that if it's a new decision it's clearly not contrary to established law.
05-595 +++$+++ 43684 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
05-595 +++$+++ 43685 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But on the other hand, you look at (e)(2) and it says here's what you do if you're applying a new decision that's that been made retroactive. So I would have thought that meant you can't say simply because it's a new decision it won't apply.
05-595 +++$+++ 43686 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our reading of 2254(d)(1) is that Congress intended to have the federal courts give the state courts deference to the extent that the state courts made a substantive determination. If the state courts made no substantive determination, there's no requirement for deference by the Federal courts, which under 2254(e)(2)(A)(i) the Federal court conceivably find that there was cause and prejudice under 2254(2)(a)(i) under the standards enumerated in those subparagraphs (a) and (b) and could then make a merits determination. There would be nothing that would preclude the Federal court from making a merits determination so long as the state court had not already made a merits determination.
05-595 +++$+++ 43687 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, suppose the state has, which is going straight to AEDPA. Does that mean that Teague is out entirely, even the first category, that is a decision, a substantive decision that would mean that what defendant did was not a crime?
05-595 +++$+++ 43688 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Ginsburg. It would mean under -- under a plain meaning reading of 2254(d)(1), if the state court made a determination on the merits, it would bar subsequent Federal review whether it was a substantive, a substantive claim or a procedural claim. However, in Atkins v. Kentucky there would be nothing that would prevent the petitioner from going back to the state court and arguing cause and prejudice, and then if the state court were to make a procedural determination on the second petition that was -- that were to deny the petitioner his claim, he could take that to the Federal court. The Federal court could then look at that because it was only a procedural determination by the state court on the second habeas claim and the Federal court at that point could look back at the substantive rule as established law because on the second claim they have the right, if he's only denied a procedure -- on a procedural basis, there's nothing that would preclude the Federal court on his second claim from looking back at what would then be established law.
05-595 +++$+++ 43689 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is the source of the rule in Teague? Could Congress overturn the rule in Teague if it wanted to and say that nothing is retroactive or that everything is retroactive?
05-595 +++$+++ 43690 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My understanding is that the rule in Teague is -- the source is not the U.S. Constitution. It's a judicially created rule that began with Linkletter and developed into Teague and its progeny. And yes, I believe Congress could pass 2254(d)(1) and alter the habeas procedures, as they have in enacting 2254(d)(1).
05-595 +++$+++ 43691 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Habeas is an equitable --
05-595 +++$+++ 43692 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry?
05-595 +++$+++ 43693 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Habeas is equitable relief and the Court has a lot of discretion in identifying the boundaries of equitable relief, doesn't it?
05-595 +++$+++ 43694 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Scalia.
05-595 +++$+++ 43695 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I assume that's how we got to Teague.
05-595 +++$+++ 43696 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let me ask this question as to the basic issue of whether you should be relying on Teague or the statute. If you're relying just on the statute, how would it apply to a case which was correct under established law at the time that the state court made its ruling, but before the case reached the appellate court, in which there was a change in our interpretation? What if this case -- if Crawford had been decided while the case was on appeal?
05-595 +++$+++ 43697 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ While under the Court's retroactivity jurisprudence Griffith would control, under 2254 it would not. 22(d)(1) would control.
05-595 +++$+++ 43698 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it really makes a difference whether we rely on Teague or whether we rely on the statute if we disagree with you?
05-595 +++$+++ 43699 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It make difference. It makes a difference.
05-595 +++$+++ 43700 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I assume there would be a Rule 60(b) motion or the equivalent of it in state court.
05-595 +++$+++ 43701 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-595 +++$+++ 43702 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If indeed our law had changed; don't you think?
05-595 +++$+++ 43703 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
05-595 +++$+++ 43704 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, it's inconceivable that the problem wouldn't be solved in some fashion by the state court that rendered the decision.
05-595 +++$+++ 43705 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that the petitioner would be able to make a subsequent habeas petition at the state court level and if they were somehow denied relief on a procedural basis, there would be nothing that would preclude the Federal court from granting them relief thereafter.
05-595 +++$+++ 43706 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's a odd position to take, to proliferate proceedings that way. I mean, I thought your argument, AEDPA argument, was: Too bad, the Federal court is out of it, but the state court is most likely, recognizing that this Court has said what this man did wasn't a crime, to grant him relief. But if you're making this two-step and saying, but somehow we can change the substantive proceeding into a procedural proceeding, that seems to me odd, to proliferate proceedings that way.
05-595 +++$+++ 43707 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, what we're saying is that Congress in enacting 2254(d)(1) was stating that the Federal courts should give deference to the state court decision so long as it is a merits decision and so long as it complies with existing clearly established law and is not unreasonable. And if that occurs, then Congress under 2254(d)(1) was saying give state courts deference under those circumstances.
05-595 +++$+++ 43708 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're saying not just "clearly"; "then clearly established law."
05-595 +++$+++ 43709 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly.
05-595 +++$+++ 43710 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That is, at the time of the state court decision. *END STENO
05-595 +++$+++ 43711 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly, absolutely, at the time of the state court decision. In fact, if you look at the language of 2254(d)(1) it says "resulted in a decision that was contrary to or an unreasonable application of clearly established Federal law. It doesn't say "is contrary to clearly established law." It says "was contrary to."
05-595 +++$+++ 43712 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The word was is somewhat ambiguous. It could either mean at the time of the trial court's decision or at the time of the final judgment on appeal.
05-595 +++$+++ 43713 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in either case, it is referring to the --
05-595 +++$+++ 43714 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know you win under either view, but --
05-595 +++$+++ 43715 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, exactly.
05-595 +++$+++ 43716 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- it could mean either of those two things.
05-595 +++$+++ 43717 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our, our position would be that it would be up to when the decision became final. Whatever the law was up to the time that the decision, the state court decision became final, that is what was clearly established law. I'll continue with our Teague analysis because we believe that the claim is barred under either analysis. The --
05-595 +++$+++ 43718 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Crawford did use the term bedrock?
05-595 +++$+++ 43719 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes. And what Crawford -- what we believe Crawford was saying -- well, Crawford said that the Sixth Amendment right to confrontation is bedrock. It didn't say that that decision altered our understanding of the bedrock procedural elements essential to a fair trial. That is the standard. Not whether or not the Sixth Amendment is bedrock. In fact, if you look at the case of Gideon versus Wainwright and Betts versus Brady, in Betts versus Brady this Court had held the Sixth Amendment right to counsel was not applicable to the states through the 14th Amendment. Gideon overruled Betts versus Brady and said that the Sixth Amendment right to counsel was applicable to the states under the 14th Amendment. That alters our understanding of the bedrock procedural elements that are essential to a fair trial. In one case, we're saying rights of counsel is not one of those bedrock procedural elements. Is not, therefore, applicable to the states under the 14th amendment, Betts versus Brady. In the next case we're saying right to counsel is it implicit in the Constitution. It is an essential to the fairness of a proceeding, and it is therefore applicable to the states under the 14th Amendment. That truly alters our understanding of the bedrock procedural elements that are essential to a fair trial. In contrast, when you look at Crawford vis-a-vis Ohio versus Roberts, the -- there's a real distinction there. In both cases, we know that the right to confrontation is essential and Federal and one of those bedrock elements that are essential to a fair proceeding. Therefore Crawford doesn't alter our understanding of what elements are or are not essential to -- bedrock elements essential to a fair proceeding. Instead it modifies the contours --
05-595 +++$+++ 43720 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You make the same analysis if you say the right is not necessarily the right of confrontation but the narrower right of cross-examination.
05-595 +++$+++ 43721 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Would I make the same analysis?
05-595 +++$+++ 43722 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because that is central to Crawford.
05-595 +++$+++ 43723 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes. Crawford doesn't tell us that the rights to confrontation or the right of cross-examination is a new right as Gideon tells us. Instead Crawford tells us --
05-595 +++$+++ 43724 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, there is a new emphasis on cross-examination.
05-595 +++$+++ 43725 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It alters, it modifies the manner in which we implement that right. Under Ohio versus Roberts there was plenty of cross-examination that was occurring. The standard under Ohio versus Roberts was unavailability and inadequate indicia of reliability. There was a reliability screen in place, and it was clear under Ohio versus Roberts that the right to confrontation was an essential bedrock right, essential to a fair trial.
05-595 +++$+++ 43726 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Exactly. But you know, how you play the game depends upon at what level of generality you describe the right. And I agree with you if you describe the right as the right to cross-examination, that -- that was -- reinstituted by Crawford, which said that the confrontation right is a right to confrontation -- to cross-examination, which didn't exist before. I mean, you could dispense with that right of cross-examination if there were indicia of reliability.
05-595 +++$+++ 43727 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there were --
05-595 +++$+++ 43728 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm not sure that you can so -- in such a facile fashion decide what is a bedrock principle. Frankly, I don't know any formula that would -- that would describe it. I really think it is a -- you know it when you see it.
05-595 +++$+++ 43729 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia --
05-595 +++$+++ 43730 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It is like obscenity. (laughter.)
05-595 +++$+++ 43731 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I understand. The other point that --
05-595 +++$+++ 43732 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That gets, if you follow Justice Scalia's argument, that gets you to, I think to the argument you have made. And that is all right, we have got to look at it pragmatically. I mean, what are the consequences of following a reliability model rather than a cross-examination model? And your argument is consequences that are not necessarily more favorable to defendants, in fact -- or more productive of ultimately reliable determinations, in fact. And that I take it is your basic point. So I think you've answered what for all of us is a problem. And that is we don't have a clear analytical definition of bedrock; but if we look to consequences, you have got an argument. Your friends don't think it is a good one, but that's your point.
05-595 +++$+++ 43733 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The other point is that there's a second component to watershed which is it must be a rule without which the accuracy of a proceeding is seriously diminished. There was cross-examination under Ohio versus Roberts. There -- in Crawford, the language of Crawford isn't a sweeping indictment of -- of Roberts.
05-595 +++$+++ 43734 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, there wasn't cross-examination by defense counsel.
05-595 +++$+++ 43735 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry?
05-595 +++$+++ 43736 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In this case there wasn't cross-examination by defense counsel. Or am I incorrect?
05-595 +++$+++ 43737 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There was cross-examination of the mother, there was cross-examination of the police detective -- there was cross-examination of --
05-595 +++$+++ 43738 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, oh. No, I mean of the witness.
05-595 +++$+++ 43739 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not of Autumn -- not of Autumn Bockting. But the important point that I want to make before I reserve the balance of my time is that the question isn't simply, is Crawford accuracy-enhancing? The question is is it a rule without which the accuracy of a proceeding is seriously diminished. In other words must all --
05-595 +++$+++ 43740 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- accuracy-enhancing then?
05-595 +++$+++ 43741 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry?
05-595 +++$+++ 43742 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's a question about how much more accuracy-enhancing, if at all?
05-595 +++$+++ 43743 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That, and it is really an analysis of Roberts. Is, is that judicial determination of reliability under adequate indicia of reliability, so fundamentally flawed that all of the decisions that were, that were arrived at pursuant to its authority must be undone, and new trials must occur with respect to those decisions because it is so fundamentally flawed. And our point is that it is not. It does not rise to that level of inadequacy and Crawford is therefore not a rule without which the accuracy of a proceeding is seriously diminished. Mr. Chief Justice, may I reserve the balance of my time?
05-595 +++$+++ 43744 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you General Chanos. Mr. Gornstein, we will hear now from you.
05-595 +++$+++ 43746 +++$+++ FALSE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court. Crawford does not satisfy either of the two requirements for a retroactive watershed rule. The application of Roberts rather than Crawford did not so seriously diminish the likelihood of accurate convictions as to require the wholesale reopening of convictions that were final before Crawford was decided, with all the societial costs that entails.
05-595 +++$+++ 43747 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Since you barely cite AEDPA, I think you assume we need to reach the Teague question before the AEDPA question.
05-595 +++$+++ 43748 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, we do not have an interest in the AEDPA question because it does not apply to Federal convictions, the 2254(d)(1), and there is no Federal conviction analog to 2254(d)(1), so we are not telling you that you should or should not reach it. We just don't have an interest in that question.
05-595 +++$+++ 43749 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It is law that is applied in Federal court, though. I assume you have an interest in that.
05-595 +++$+++ 43750 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we have a general interest in the way law is applied in Federal court but we do not ordinarily opine on issues just on that basis and we haven't in the past opined on AEDPA issues unless they have some Federal analog carryover effect. And we did not here. Now with respect to the reliability prong of the Teague analysis, there are three reasons that the Roberts rule did not so seriously diminish the likelihood of accurate convictions as to call for retroactive application of Crawford. The first is that Roberts had a built-in reliability screen. Hearsay could not be admitted under Roberts unless a determination was made that there were particularized guarantees of trustworthiness. The second reason that Roberts did not seriously diminish the likelihood of accurate convictions is that there were other procedural components that operated in tandem with Roberts to promote accuracy. They included the right to cross-examine the witness through whom an hearsay statement was introduced, the right to introduce your own evidence to challenge the reliability of the hearsay statement. Defense counsel could point out to the jury all the weaknesses in the hearsay statement and the defendant could count on the common sense of the jury to weigh the reliability of the hearsay statement in light of all the evidence in the case.
05-595 +++$+++ 43751 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can't you make that argument about any, about cross-examination in general? It is debatable whether -- how good cross-examination is in determining the truthfulness of a witness's testimony. Now, our Constitution decides the issue one way, but any infringement of cross-examination could be susceptible to the same argument that you are making.
05-595 +++$+++ 43752 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. And I don't think that this is a self-sufficient argument for that reason. It is just one component of the argument about why there was reliability. The fact that there was a Roberts screen on reliability is an additional factor that distinguishes my example from what you said. And the fact is that there was a right to cross-examine live witnesses here. So there was a right to cross-examine the police officer through whom this hearsay statement was made. It is not a case where there was an across-the-board denial of any cross-examination.
05-595 +++$+++ 43753 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well I guess you're asking us to say Crawford, get one, take one, it is really not that important. If that's so, I suppose we shouldn't have overruled Roberts.
05-595 +++$+++ 43754 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I think Crawford that is an important decision. But if you made retroactive every one of your important decisions, you would be reversing the rule of Teague. What Teague says that is there is not -- that the purposes of habeas corpus are largely exhausted once somebody has received a trial in accordance with then existing law. Because of the importance of finality to the system -- and there are only going to be two very -- there's only a very narrow window for watershed rules, of rules that, the accuracy of proceedings beforehand are so seriously diminished that there is an unacceptably large risk that systematically, innocent people were being convicted, and that this is a rule that approaches Gideon in its fundamental and sweeping importance. Those are the only circumstances in which the Court is going to go back on finality.
05-595 +++$+++ 43755 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How many times have we dealt with a quote, "new rule," with the argument made that it was watershed and therefore should be retroactive? This is not the first time.
05-595 +++$+++ 43756 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I think that there have been -- I don't know the exact number, but maybe 11 or 12, about half of which are ones, are proposed new rules and half of which are ones where the rule was already established previously and the question was whether it was going to be made retroactive. And I cited in the brief there are three or four death penalty cases where the Court had already established before each one of them there was a right not to be -- the death penalty to be arbitrarily imposed. And in each case there was a new rule that built on that basic rule in an important way; but in each case, the Court said it was not the kind of rule that was going to be applied retroactively. And so, too, here. The third reason I wanted to give about why there was not a serious diminishment in accuracy that is in at least one respect, the Roberts rule actually promotes more accuracy than the Crawford rule, and that's with respect to non-testimonial hearsay. In the case of non-testimonial hearsay, under Roberts, that could come in only if determination had been made there were particularized guarantees of trustworthiness. Whereas under the Crawford rule, that kind of non-testimonial hearsay comes in without any reliability check under the Constitution at all.
05-595 +++$+++ 43757 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that's not this case.
05-595 +++$+++ 43758 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well there was actually in this case the mother's testimony about what the daughter said to her.
05-595 +++$+++ 43759 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm talking about the daughter's testimony.
05-595 +++$+++ 43760 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The daughter's testimony about what she said to the mother illustrates the difference, because that came in through the mother. It only came in because there was a particularized guarantees of trustworthiness to that statement; whereas under Crawford in future trials, statements to the mother -- which are not testimonial -- they will come in through the mother without any screen for reliability under the Constitution at all. So in that respect, the defendant here got more by virtue of the Roberts rule than by -- than he would have had by virtue of the Crawford rule.
05-595 +++$+++ 43761 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that the case in Federal courts, too?
05-595 +++$+++ 43762 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it is a matter of interpreting -- what protection is left is only going to be by virtue of the residual hearsay rule. So there will have to be some determination made about whether there are sufficient guarantees of trustworthiness.
05-595 +++$+++ 43763 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, it is conceivable that Federal courts would interpret the hearsay rule to require precisely that anyway.
05-595 +++$+++ 43764 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But Justice Scalia --
05-595 +++$+++ 43765 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In which case you shouldn't be making this argument because it applies only to state courts.
05-595 +++$+++ 43766 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I think it applies equally to Federal courts because it is free to the Federal court system to devise a rule that would allow a looser standard of entry than the Roberts standards, and if it did, that would be constitutional. So there is an interest in that kind of argument in the Federal system. I wanted to move on to the bedrock aspect of the inquiry, which is a separate second inquiry that had threshold that has to be crossed if you are going to find something to be watershed, and the only rule that the Court has found to be bedrock is Gideon. And this rule, Carawford does not approach Gideon in its fundamental and sweeping importance, and there are a couple of reasons for that. First, the right to counsel pervasively affected all aspects of the criminal trial whereas this focuses on one limited -- the admissibility of one limited category of evidence, testimonial hearsay, and adopts a somewhat new rule for that than had existed before. The second thing is that under, the right to counsel is deemed so essential to a fair trial that depriving someone of that right can never be discounted as harmless error, whereas Crawford errors can be harmless. There are a significant number of cases where they are found to be harmless. So you cannot say that a violation of the Crawford rule always and necessarily results in an unfair trial, whereas you can say that about the right to counsel. Finally, the Gideon rule established for the first time a right to free counsel in all felony criminal trials. Before Crawford was established, there was a right to cross-examine. It simply was a different right. You had a right to cross-examine the live witnesses and you had a right to screen out uncross-examined statements unless they met the reliability standard of Roberts. And the change that was made was one in which the Roberts rule was thrown out, and you can no longer get in uncross-examined statements with a determination of reliability. But that is a modification or an incremental change in an existing right that previously existed to cross-examine, and instead -- unlike the Gideon rule, which established the right to counsel for the first time. If the Court has nothing further.
05-595 +++$+++ 43767 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Gornstein. Ms. Forsman?
05-595 +++$+++ 43769 +++$+++ FALSE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you very much, Mr. Chief Justice. Members of the Court: This man was sentenced to life in prison based upon accusations that have never been tested by the only constitutionally reliable test that is now acceptable in this Court. There is no question that the statements that were admitted through the police officer were testimonial. There is no question that if Mr. Bockting were tried today, that those statements would not have come in. The government has argued that the reliability screen, so-called, that came from Roberts was sufficient, and it was only an incremental change when the Crawford decision was decided. The fact of the matter is that this Court found that the reliability screen that the government has discussed was fundamentally flawed. And in this case, comparing the right to counsel to the right to cross-examination is easy. It is easy because it would not have mattered how many lawyers Mr. Bockting had. It would not have mattered if he had the finest lawyers in the country. It would not have mattered if he was Duke Power Company and had every lawyer at the highest hourly rate representing him. If he was unable to cross-examine his accuser, just as in Crawford -- in Crawford, there was even an audiotape of what the wife said. There was an audiotape. There was a police officer who listened to what she said. And this Court found that wasn't good enough.
05-595 +++$+++ 43770 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, we didn't say in Crawford, I don't think we said in Crawford -- I ought to know, I suppose. (Laughter.)
05-595 +++$+++ 43771 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that the new rule produced greater accuracy. We said that it was the view of the framers of the Constitution that cross-examination, confrontation in that sense, was necessary for greater accuracy. Now in our evaluation of what constitutes a landmark decision, are we bound to the framers' view of things? I mean, you know, maybe -- I'm not sure that if you apply a proper interpretation of indicia of reliability under Roberts, I'm really not sure whether it wouldn't be more accurate than confrontation, but that wouldn't matter to me, because confrontation is what the Constitution required and what the framers thought were necessary. Am I bound, for purposes of the rule we're arguing about here, to what the framers think?
05-595 +++$+++ 43772 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, you are not bound to what the framers think. However, I think that you went far beyond simply saying that this was like quartering soldiers in discussing the confrontation clause and the right to confrontation. The opinion goes into at length why the Roberts rule was so fundamentally flawed. You talked about the kinds of decisions that were produced, although this Court said that this Court had pretty much tacked to the same direction as the framers' view.
05-595 +++$+++ 43773 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think that discussion of the, you know, the contrary decisions that had been produced under Roberts was just for the purpose of justifying the overruling of a case that -- you know -- that was not that old. It hadn't worked out as well as we maybe expected it would. But I don't think it was for the purpose of showing that it always produces unreliable results.
05-595 +++$+++ 43774 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I don't think that our burden would to be show that it always produces unreliable results. I think that this Court has clearly taken the position that the only constitutional reliability is the right to cross-examination. However, throughout your retroactivity jurisprudence, you have been able to distinguish easily between issues such as the exclusionary rule, the right to a cross-section of the community on a jury, and the right to cross-examination. I would point out to you, the decisions that made Bruton, for instance, retroactive, because the right to cross-examination went so directly to the integrity of the fact-finding process. I think that one of the major difficulties in the argument being taken by the State --
05-595 +++$+++ 43775 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's in an instruction, like Toomey versus Ohio. The judge is corrupt. It is just structural. You can't say that about Crawford, or can you?
05-595 +++$+++ 43776 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't mean to say, Your Honor, that it is structural. I think the issue of whether something is structural error or harmless error has to do with whether or not it is measurable, not whether it's bedrock, not whether it's watershed, not whether it leads to better accuracy. We know that, because in Teague, although Gideon was the only case explicitly referenced, there was also three other examples mentioned in Teague. There was a trial tainted by mob violence. There was a trial flawed because of the intentional introduction of perjured testimony. And there was a trial flawed by the introduction of testimony with regard to a coerced confession. We know that two out of those three examples are actually subject to harmless error analysis. So this Court has never tied the issue of the elements of Teague or even the elements of the pre-Teague jurisprudence to the issue of whether something is structural or harmless. It is the issue, as it was in the more recent decision of Gonzalez-Lopez, of the right to choice of counsel decision. They are what the Court looked to to determine the issue was, is it harmless, is it quantifiable. And in this case, courts are accustomed, appellate courts are accustomed to looking at the introduction of this kind of evidence and determining whether or not it is harmless. The State has not taken a position before this Court that the Ninth Circuit was erroneous in determining that this evidence was prejudicial, and therefore affected the outcome. So the issue of accuracy as defined by the State and by the government, the problem with that argument and the easiest way to see the problem in that argument is if you look to Gideon. Certainly we wouldn't argue that the insertion of counsel into a case may not result in what the State is defining as a more accurate result. The insertion of counsel into a case may well cause the exclusion of evidence. In fact, in many instances that is exactly what counsel does. So their definition of accuracy if applied to the Gideon case would mean that Gideon would flunk that definition, and wouldn't be the case that has been so repeatedly referenced by this Court as an example of the kind of case that should be made retroactive.
05-595 +++$+++ 43777 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Forsman, what about the cases we're had so far on this second Teague category? As far as I know -- well, we haven't found anything to be retroactive on collateral review so far, so this would be the first time.
05-595 +++$+++ 43778 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would be, Your Honor, and it is appropriate that this be the first time. As I previously referenced, those cases fell -- there are 12 of them, by the way. There were 12 decisions post Teague applying the Teague analysis in which this Court did not find retroactivity. The Solicitor General is correct. Some of those were cases in which on collateral review, the petitioner was seeking to actually create a new rule and apply it retroactively. But if we look to cases such as the retroactivity application of Batson, for instance, what this Court has found is that the Batson rule, the cross-section of the community on a jury, that the purpose of that rule was not created for the purpose of protecting against unjust convictions or ensuring the integrity of the fact-finding process. That was not the purpose of the Batson rule, this Court found that it wasn't the purpose of the Batson rule, and that therefore, it would not fall under the Teague exception. That is not so when you talk about the purpose of the cross-examination rule.
05-595 +++$+++ 43779 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about the decision that said Ring v. Arizona was not retroactive on collateral?
05-595 +++$+++ 43780 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, in Schriro versus Summerlin, the issue there was an issue with regard to ultimate accuracy of a jury versus a judge. Again, this Court found that the evidence was -- the evidence was equivocal with regard to whether or not a judge findings or jury findings were more accurate. Now you might say, well, that sounds a little bit like Roberts. The problem with that is that it isn't like Roberts, because under Roberts, the cross-examination right, which is something that we held so dear and connected so directly to the right to counsel, having counsel without the right to cross-examination, isn't much of a right.
05-595 +++$+++ 43781 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The problem with your case -- maybe it's our problem because it was our rule -- is that we're asked to adopt an across-the-board calculus as to the rule. In some cases, as I think you will have to concede, under the Roberts jurisprudence, the fact finding was more accurate. In your case, what you are telling us is that the fact finding is far less accurate. But I think you are stuck unless you can give us some reason that we depart with it. With a rule-made jurisprudence, we have to look at the rule in the whole universe of cases, not just your case. It seems to me that was the problem you had in arguing in this area, and maybe you can suggest some way out. I don't see it.
05-595 +++$+++ 43782 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I can, Your Honor. The reason that I can is that the judge does not have the ability to see the cross-examination statement either. So if we start with the premise, when making this reliability determination, we would have to throw out all of the statements in Crawford and all of the previous cases which hold so dear the right to cross-examination and say, but a judge can make a reliability determination without ever hearing the statements cross-examined, can make them in that vacuum without ever testing the reliability of the statements with the -- with cross-examination. And I don't know how you would be able to square that with the strong statements that are made in Crawford. And the strong statements that are made in the cases, for instance, in the case finding that Bruton should be retroactive, because it goes to the integrity of the fact- finding process. Unlike all of the other cases that you've talked about since Teague, the integrity of the fact-finding process is what is at issue here. Do you have confidence in a result which is based upon an accuser's statements being admitted without ever having been cross-examined?
05-595 +++$+++ 43783 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But Ohio versus Roberts was not overruled because of a judgment that it was not doing a good enough job in assessing reliability of these statements. It was overruled because of a judgment that the Founders wanted there to be cross-examination.
05-595 +++$+++ 43784 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- Your Honor, that is the base of the decision. It harkens back to what the Founders believed. However, the rule in Roberts was described variously from "amorphous to unpredictable, proof manipulable," to saying that the basis for the right to confrontation and cross-examination comes from a basic mistrust of, even to the levels of a judge in terms of accepting the testimony without the advantage of an actual adversary proceeding. This case, of course, illustrates the dire need for cross-examination because the accuser in this case testified inconsistently at the preliminary hearing in this case and then was excused before cross-examination was allowed. The accuser in this case, who was sent to a counselor by the district attorney, when she went to the counselor refused to knowledge that the incident happened, according to the testimony of the counselor. And because the court -- and the record is very scant on what happened here -- the court, the trial court for instance, under Roberts made only a couple of findings and he said the testimony was consistent -- he didn't look at the fact that it had been inconsistent on at least two other occasions -- and said it was chronological, at least according to what the police officer said. And so there were only a couple of findings by the trial court at all with respect to --
05-595 +++$+++ 43785 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You had the opportunity to challenge those findings under the Roberts regime in state court?
05-595 +++$+++ 43786 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We did. We did, and that -- and that issue was not reached by the Ninth Circuit because after we had argued the case in the Ninth Circuit the Crawford decision was decided; and it was at that point that the Ninth Circuit picked up on the Crawford, and they didn't decide the issue of whether or not Roberts would have meant that this testimony was unreliable anyway.
05-595 +++$+++ 43787 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You can still argue -- what hearsay exception did it come in under?
05-595 +++$+++ 43788 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It came in under a Nevada statute which was patterned after Roberts. It came in under a Nevada statute --
05-595 +++$+++ 43789 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Adequate indicia of reliability.
05-595 +++$+++ 43790 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Adequate indicia of reliability?
05-595 +++$+++ 43791 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, adequate -- basically, indicia of reliability. It didn't go into -- it didn't go into too much more detail than that. It just simply required that, a witness under ten, the court must find that the, that the statement is reliable and the statements are reliable, and then --
05-595 +++$+++ 43792 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that universal in Nevada? I mean, is they are no more hearsay rule in Nevada, that you just evaluate hearsay straight out in every case?
05-595 +++$+++ 43793 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. No. That was a statute that was adopted specifically for child witnesses.
05-595 +++$+++ 43794 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is for children under ten, isn't it?
05-595 +++$+++ 43795 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Children under ten.
05-595 +++$+++ 43796 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ As you just said.
05-595 +++$+++ 43797 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
05-595 +++$+++ 43798 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And here we had someone who was six years old and was hardly articulate, it seems from the little we have of this record. So the Nevada statute I think was very specific to children and was not --
05-595 +++$+++ 43799 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was. Yes, yes. No, it was. It was adopted for witnesses under ten. This child actually was quite articulate in the preliminary hearing and was able -- was able to talk about the fact that she remembered talking to the police officer, that she remembered -- but then, but then in terms of trying to recall the incident, she was unable to recall the incident, and she was unable to recall it in any of the same detail that the police officer testified to. So it wasn't -- you know, it wasn't a circumstance in which you had a child who simply couldn't speak or a child who couldn't describe what had occurred.
05-595 +++$+++ 43800 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So if you lose this case, you can go back to the Ninth Circuit and say, well, even under Roberts it shouldn't have come in?
05-595 +++$+++ 43801 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that's correct, Your Honor, because the Ninth Circuit did not reach that issue.
05-595 +++$+++ 43802 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would you comment, Ms. Forsman, on your opponent's argument based on 2254(d)?
05-595 +++$+++ 43803 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I think the easiest way to explain our position on that is that what has been articulated here is that a retroactive -- a rule made retroactive by this court would be applicable to Mr. Bockting if he had not raised this issue or had been somehow procedurally defaulted along the way. In other words, in order to be able to get the advantage that was discussed by both the state and the government of the other sections of the statute which clearly recognize, as to the extent that it's relevant the sponsor of the legislation did, that you still have the power to make rules retroactive, but the only way that Mr. Bockting would be able to get advantage of that rule would be if the state court had never ruled on the merits of his claim or had made some sort of procedural ruling that meant that he was defaulted on the claim. So instead of Mr. Bockting, who has raised this question of being able to cross-examine his accuser from day one in the trial, he cannot have that rule applied retroactively to him. If instead he now, he goes back later and the court says, no, this is a successor petition, you can't, you can't get it, you can't come into our courtroom, the door is slammed on you, according to the state now there's no ruling on the merits of his claim, and that's why that section of the statute would permit the retroactive rule to apply. 2254(d)(1), while it has the language clearly established, and the court asked some questions about that, I think it must be remembered that when that statute is being addressed, it's being addressed in state court -- or in Federal court, on Federal habeas. And so at the time that the petitioner is in Federal court, then the rule has been clearly established. The 2254(d) --
05-595 +++$+++ 43804 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's not -- the state has to result -- the state -- it's adjudicated on the merits in state court and results in a decision that was contrary to clearly established Federal law.
05-595 +++$+++ 43805 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
05-595 +++$+++ 43806 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it seems to me that the question is what was the law, what was the clearly established law at the time of the state decision.
05-595 +++$+++ 43807 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 2254(d)(1), I think the only way that you can read that section compatibly with the four other sections which are quoted in our appendix 2 of our brief, the only way that you can do that is to recognize, although this Court will recall that it has described AEDPA as not quite a silk purse of legislative drafting, but the only way to make those sections compatible is to say, listen, what was going on when 2254(d)(1) was written was we were talking not about the timing of the new rule, what we were talking about is who is it decided by, because before AEDPA was adopted it wasn't apparent that it must be a decision by you, by this Court, that established by the rule. So that's the first part. And the second part is that it's not dicta. It is an actual holding of this Court that is to be looked to to determine whether or not the state court was wrong. And so the only way to read that is to say, listen, there has to be some meaning to retroactivity, and what does retroactivity mean? Retroactivity means like a nunc pro tunc order, that when you've determined that a new rule is retroactively applicable -- and certainly between AEDPA and the Teague exceptions, which you did say in Horn versus Banks, by the way, should be analyzed differently -- although it has not been tossed up to you directly as it has in this case, the meaning of the 2254(d)(1), you have repeatedly advised that Teague is still alive and well and that when you look to the application of whether a rule should be applied retroactively you look to the Teague exceptions, so we also look --
05-595 +++$+++ 43808 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there any language in 2254(d) that could incorporate the Teague exceptions?
05-595 +++$+++ 43809 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is not language in 2254(d)(1). The language -- the reason that we know that Congress was cognizant of Teague is that there is language throughout AEDPA, particularly in the sections that we've quoted to you, that are lifted directly from Teague.
05-595 +++$+++ 43810 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What would we say if we were to say that 2254(d)(1) accommodates the Teague exceptions, that Congress meant to put them in but just forgot to do it? How would we account for the language?
05-595 +++$+++ 43811 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that what you would say is that Congress would not have deprived you of the power to make a rule retroactively applicable and would have not then created the ludicrous situation which the state suggests would occur here, which is instead of the motivation in Congress in having someone like Mr. Bockting raise the issue from the very beginning in one unitary proceeding, as opposed to going back, which is what they've suggested he must do in order to get the advantage of a retroactive rule, is that Congress was cognizant of that and in order to make all of the statute -- all of the provisions of the statute have meaning and not render certain provisions, including the sections that we quoted, superfluous, that you must interpret that to mean that the -- that the -- that 2254(d)(1) is not a timing statute. It's what law do we look to. That must be what they meant. Otherwise, the rest of it just doesn't make any sense.
05-595 +++$+++ 43812 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't that making the tail wag the dog, because there's language in the provisions on successive petitions that refers to Teague, that you would read the Teague exceptions into 2254(d)(1) when there's nothing in the language there that can be interpreted to refer to them?
05-595 +++$+++ 43813 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I don't believe that's the tail wagging the dog, because I don't think that that was the intent of 2254(d)(1). I think the intent -- again, I think the intent of 2254(d)(1) was in order to define what kinds of decisions the state court decisions should be measured against. There must be some kind of meaning to retroactivity, and retroactivity means that you are making this decision now and you're making it retroactive to the time. It is not going to be many things, as we know not only from your decisions, but as we know from the very small core of decisions that Teague left open. And it is those decisions where we must worry whether or not an innocent man has been convicted. It is those rules that protect against those -- an unjust, an unwarranted, a wrongful conviction. It is only those rules that go to reliability, that go to the integrity of the fact-finding process, that you are going to let through that veil. So if it is only that small core of rules that you reserved in Teague, only that small core of rules, and we know it won't be many at this point, then if you read that compatibly with AEDPA, it is not and, as we know, it is not going to open the floodgates. There is a very defined period of time in which people can bring actions for relief. Under your Dodd decision decision, there is only one year, not from the time that you make -- if you were to make, for instance, this decision retroactive, not from today, but it is one year from Crawford that petitioners have the opportunity to be able to come into court within that statute of limitations with regard to the date on which a new rule is adopted. It is from that date forward. So there is a defined population. In appendix 1 of our brief, you will see all of the decisions that we could find that have actually applied Crawford and there were 49 of them. And what you'll find is that of the decisions -- and the state and the government have not disputed this -- of the 49 decisions which we were able to find at the time of the writing of that brief, only five actually resulted in relief. There's no question it would result in relief here because there is no contention before you that the Ninth Circuit's determination of harmfulness -- there is no determination before you; they haven't challenged that to you. So it would result in relief for Mr. Bockting. But because it's harmless error or it's not testimonial or there was a previous opportunity to cross-examine, of the 49 decisions only 5 were found to have to result in relief. And that is as it should be. The state argues that watersheddedness, if that's a word, is that watersheddedness must mean that it affects many, many decisions. Now, that can't mean what Teague means. Teague can't mean that my burden is to show you that many decisions will be overturned. That's the exact opposite of what Teague was decided for. Watersheddedness has to do with the alteration of our understanding. It is difficult for me to understand how the change of course as described by then Chief Justice Rehnquist, that the change of course that Crawford represented in the way that we look at the right to confrontation cannot be, cannot be seen as precisely the alteration in the understanding of this bedrock principle again directly from the language of Crawford. We ask you, Your Honors, to make the rule of Crawford retroactive and to affirm the determination of the Ninth Circuit.
05-595 +++$+++ 43814 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Forsman, can I ask you a personal question? Were you a moot court finalist? (Laughter.)
05-595 +++$+++ 43815 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I was not.
05-595 +++$+++ 43816 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I attend a moot court at Notre Dame in about your year and it was an awfully good moot court.
05-595 +++$+++ 43817 +++$+++ TRUE +++$+++ MS. FORSMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Your Honor.
05-595 +++$+++ 43818 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Forsman. General Chanos, you have two minutes remaining.
05-595 +++$+++ 43820 +++$+++ FALSE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. I only have a few points. First of all, counsel's argument with regard to the interpretation of 2254(d)(1) clearly established language is inconsistent with the statement made -- statements made by this Court in Lockyer and in Williams v. Taylor. In Lockyer, the Court stated Section 2254(d)(1)'s clearly established phase referred to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state court decision, citing Williams v. Taylor. In other words, clearly established federal law under 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision. With regard to counsel's point about this case in particular, Bockting, I agree that there are broader issues beyond this particular fact situation. However, I want the Court to feel comfortable that when this Court sent this case back down to the Nevada Supreme Court and told the Nevada Supreme Court to follow Ohio -- Idaho versus Wright, the factors in Idaho versus Wright to determine trustworthiness, talk about spontaneity and consistent reputation -- repetition, mental state of declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate. Particularized guarantees of trustworthiness must be so trustworthy that adversarial testing would add little to its reliability. Following that admonishment from this Court, the Nevada Supreme Court found those statements to be reliable and to satisfy the standards of Ohio -- Idaho versus Wright. Finally, I would just point out that although Caldwell is indeed an important rule, and may, in fact, be a fundamental rule, so was Batson in Teague, as was Caldwell in Sawyer, as was Ring in Summerlin, as was Duncan in DiStefano as was Mills in Banks. Yet this Court failed to apply retroactive status to any of those important fundamental rules saying none of them rose to the level of Gideon versus Wainwright. The same should be true with your decision here with respect to Crawford. Finally, as Justice Harlan stated in the case of McKay, talking about where this Court's retroactivity jurisprudence has come from, no one, not --
05-595 +++$+++ 43821 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You can finish your sentence.
05-595 +++$+++ 43822 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
05-595 +++$+++ 43823 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Particularly if it is Justice Harlan you're quoting. (Laughter.)
05-595 +++$+++ 43824 +++$+++ TRUE +++$+++ MR. CHANOS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. No one, not criminal defendants, not the judicial system, not society as a whole is benefitted by a judgment providing that a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation on issues already resolved. Thank you.
05-595 +++$+++ 43825 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General. The case is submitted.
05-5966 +++$+++ 43829 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument next in Clark versus Arizona. Mr. Goldberg.
05-5966 +++$+++ 43831 +++$+++ FALSE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Eric Michael Clark was denied his Fourteenth Amendment right to a fair trial. Arizona law defined the cognitive elements of first-degree murder as requiring proof beyond a reasonable doubt that Eric Clark intentionally and knowingly shot and killed a police officer in the line of duty. The State of Arizona was permitted to offer facts to circumstantially prove these mental and essential requisite elements of mens rea. Under the rule espoused by the Arizona Supreme Court in State versus Mott, as we have been calling it, "the Mott rule," this evidence, as offered by the defense both in lay testimony and expert testimony, was arbitrarily categorically excluded as a rule of evidence that's unsupported by any valid State purpose. In this case --
05-5966 +++$+++ 43832 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It was excluded with respect to mens rea, but, of course, all of the evidence came in with respect to the insanity defense.
05-5966 +++$+++ 43833 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It came in, yes, Mr. Chief Justice, as to the insanity defense, but could only be considered if Eric knew right from wrong. It cannot be considered because of the peculiar adoption of an amendment to 13-502, which is the Arizona insanity statute, that eliminated consideration of the nature and quality of his acts.
05-5966 +++$+++ 43834 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is --
05-5966 +++$+++ 43835 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well --
05-5966 +++$+++ 43836 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the State telling us -- and we'll ask the State when they argue -- but is the State telling us that it has defined "intent" in a particular way for this, so that "intent" is just having the purpose to cause the result --
05-5966 +++$+++ 43837 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If they were --
05-5966 +++$+++ 43838 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- and, therefore, that this testimony is irrelevant? Is that the State's argument, as you understand it?
05-5966 +++$+++ 43839 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As I understand the State's argument, they are adopting what Justice Ginsburg wrote in Montana v. Egelhoff, that the State, by enacting this rule, has made this a substantive choice to make evidence of mental illness irrelevant. However, Arizona did not do that, and Arizona did not argue that below. Below, Arizona argued, repeatedly, that Eric Clark knew this was a police officer, that Eric Clark intentionally shot a police officer. On appeal, they argued the same thing. In the appellate decision in this case, by the Court of Appeals of the State of Arizona, the State -- I raised a challenge to the sufficiency of the evidence in addressing that issue. And this is in the joint appendix at -- one -- if I could have one moment -- begins on page 330 of the joint appendix -- 336, and proceeds through the court's discussion of the sufficiency of the evidence, in paragraph 17. The court concluded that there was sufficient evidence from which a reasonable finder of fact could conclude -- and it states, "reasonable inference thereupon that Clark knowingly and intentionally shot Moritz, and knew that he was a police officer when he did so." There's repeated references that the Arizona Court of Appeals did not understand that Arizona had somehow, by adoption of the Mott rule, decided to redefine the crime of first-degree murder, and -- as it -- we point in our opening brief, they could not constitutionally do so.
05-5966 +++$+++ 43840 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what --
05-5966 +++$+++ 43841 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, do you take that -- please.
05-5966 +++$+++ 43842 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What do you make of the very name that the State gave, not acquitted by reason -- not not-guilty by reason of insanity, but guilty, except insane. Guilty of what? Guilty of the charge. And the charge is first-degree murder. So, even if insanity is found, apparently that's defined to be "guilty of the charge, except insane," therefore not subject to criminal punishment.
05-5966 +++$+++ 43843 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Justice Ginsburg. However, guilty of the charge, based on the State's evidence, without any consideration of the defendant's evidence. In this case --
05-5966 +++$+++ 43844 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But --
05-5966 +++$+++ 43845 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- we offered 16 lay witnesses and their testimony, in addition to the experts. And I want to point this -- make this point clear. The State wants you to believe that this issue only involves psychiatric expert testimony. It does not. And it involves lay fact evidence, just as in any trial. But these 16 lay witnesses talked about --
05-5966 +++$+++ 43846 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the lay -- I'm sorry. That was my question. The lay --
05-5966 +++$+++ 43847 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ These lay witnesses --
05-5966 +++$+++ 43848 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- witnesses still talked about his mental state, correct?
05-5966 +++$+++ 43849 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. But the trial judge ruled, under Mott, that he was precluded from considering all mental health evidence, all evidence of mental disease or defect, on the issue of mens rea. So, even though it was admitted, and there's no quarrel here that all of the evidence that we sought to present was admitted, it was not considered by the trial judge. He could not. Because the Mott rule itself is categorical. And I quote from the Mott decision, as follows, "Arizona does not allow evidence of a defendant's mental disorder, short of insanity, either as an affirmative defense or to negate the mens rea elements of a crime." That states "all evidence," and the trial judge understood it to mean that, and that's the way it is applied in --
05-5966 +++$+++ 43850 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No --
05-5966 +++$+++ 43851 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Arizona.
05-5966 +++$+++ 43852 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- what they have here -- the -- what the SG says -- which seemed right to me, and I would like you to explain why it wasn't -- is that as far as the insanity defense is concerned, that everyone in Arizona agrees that you consider whether he knows right from wrong in respect to this act. Thus, if he thinks the truckdriver is an alien, or he thinks he's an animal, and has a serious mental problem in knowing what's going on, that comes right in, as it did here, because it's relevant to whether he knew it was right or wrong to shoot this person. And, therefore, once I read that, I thought there is not, at least in this case, a question of whether the insanity defense is complete, because it is. Everything that you wanted to introduce was introduced. And, indeed, it was considered, properly, under the insanity defense. And if you had convinced the jury, you would -- or the -- I guess, the jury -- you would have won on that. Now, am I -- what's wrong with what I've just said?
05-5966 +++$+++ 43853 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is a distinction between nature and quality of one's acts and knowing whether an act is right or wrong. And the State's and the United States position here is not supported by the history of the development of M'Naghten nor the ALI version of the Model Penal Code.
05-5966 +++$+++ 43854 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but I'm interested in Arizona, remember. I'm not -- what I'm interested in is whether if you say, "Judge, I am going to prove the following. My client knows right from wrong, in general, but he thought that the truckdriver was a wild animal, and that delusion meant that he is so insane, he could not have formed the necessary intent." The judge replies, "You can bring that in, because if he thought the driver was a mental -- was a wild animal, he did not know right from wrong in respect to this killing." Now, is that what happened --
05-5966 +++$+++ 43855 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No --
05-5966 +++$+++ 43856 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in effect? Or would -- did the judge say, "You may not introduce that evidence, because it is not relevant"?
05-5966 +++$+++ 43857 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice -- the trial judge ruled that we could offer the evidence, because we were not before a jury, and the judge was the trier of fact. And he stated so, that he would separate out, for himself, what he could consider and what he could not. And his verdict in this case, on the "guilty, except insane," focused only on whether Eric knew right from wrong.
05-5966 +++$+++ 43858 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In this case.
05-5966 +++$+++ 43859 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this case --
05-5966 +++$+++ 43860 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, fine. So, then, what is -- would -- if he thought it was a wild animal, then he would not have known right from wrong in respect to killing that individual.
05-5966 +++$+++ 43861 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But that is not the State's point, or -- nor the United States Government's point in this case.
05-5966 +++$+++ 43862 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is it?
05-5966 +++$+++ 43863 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Their point is that the former is subsumed in the latter. In other words, it makes no difference. But the Arizona Court -- the Arizona Supreme Court, in a State Court decision, State versus Chavez, indicated otherwise.
05-5966 +++$+++ 43864 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but whether it --
05-5966 +++$+++ 43865 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I guess maybe the question is, What is your point? And I have the same question as Justice Breyer, and I'd just like to pursue that. If a case, a hypothetical case, is one in which the second prong of M'Naghten, knowing the difference in right and wrong, gets to the question of his capacity to form an intent, isn't that sufficient? I think that's Justice Breyer's question.
05-5966 +++$+++ 43866 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would, if Arizona allowed consideration of that evidence. And it does not, at all.
05-5966 +++$+++ 43867 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But let's --
05-5966 +++$+++ 43868 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Now --
05-5966 +++$+++ 43869 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but whether it does or --
05-5966 +++$+++ 43870 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- let's assume that it can consider the evidence as to -- on the right-and-wrong prong.
05-5966 +++$+++ 43871 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The right-and-wrong prong --
05-5966 +++$+++ 43872 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does the hypothetical state --
05-5966 +++$+++ 43873 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In a hypothetical --
05-5966 +++$+++ 43874 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that says, "We'll let this evidence" --
05-5966 +++$+++ 43875 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In a hypothetical --
05-5966 +++$+++ 43876 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- "in under the right-and-wrong aspect of M'Naghten, but not under the nature and quality of the act."
05-5966 +++$+++ 43877 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And your question is whether -- -
05-5966 +++$+++ 43878 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why that isn't sufficient to answer your contention that his intent is not -- has not been subject to question.
05-5966 +++$+++ 43879 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because, first of all, it is not offered and is not considered to specifically determine whether it rebuts an inference that the State has raised on factual point key to their case. Secondly, the nature and quality is not a consideration in Arizona.
05-5966 +++$+++ 43880 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What they said --
05-5966 +++$+++ 43881 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And even if it was -- and I would -- can point this out by an example that gets to what Justice Breyer was saying -- if a person is squeezing a lemon -- and this is a common example in law school -- and it turns out to be his sister -- he knows, in the abstract, that a person -- killing a person is right or wrong. He knows it's wrong. But he does not know that squeezing a lemon is wrong. In this case, if Eric Clark's evidence showed that he believed the police officer was an alien, and there was substantial evidence in the record to that effect -- and I would specifically point you to page 39 in the joint appendix, where the -- where the expert testified that Eric had a heightened fear of police --
05-5966 +++$+++ 43882 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I'll look at M'Naghten. I had thought it was whether or not the action was right and wrong, whether -- rather than the -- than the -- than the moral command was wrong.
05-5966 +++$+++ 43883 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. That is correct, Justice Kennedy.
05-5966 +++$+++ 43884 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then, what do you do --
05-5966 +++$+++ 43885 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then what you're saying, if I understand it, is that when the Arizona statute refers to whether or not the criminal act was wrong, the criminal act that they are referring to, on your view, is the act of intentional killing, period. And if that's what they mean, then it is irrelevant that he thought he was killing a Martian. But if the Arizona reference to the criminal act being wrong refers to the act in this case -- i.e., killing somebody you believe is a Martian -- then the evidence could come in. So, I think your argument means -- your argument rests on the assumption that the Arizona statute's reference to the criminal act being wrong means the criminal act, in general, in the abstract -- i.e., intentional killing -- - as distinct from the act of killing somebody you believe to be a Martian. Is that correct?
05-5966 +++$+++ 43886 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. That's not --
05-5966 +++$+++ 43887 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
05-5966 +++$+++ 43888 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's not --
05-5966 +++$+++ 43889 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right, if that's --
05-5966 +++$+++ 43890 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the end of it, as well. And the Model Penal Code makes this point when they talk about their formulation, which is a -- whether a defendant appreciates the wrongfulness of his conduct. And they, in their discussions, had indicated -- and these are on pages 166 and 169 of the ALI comments to the Model Penal Code -- that M'Naghten could, under any formulation -- a person could, in the abstract, know that killing is wrong, but could also, in the -- in the -- their subjective mental state, due to their mental disease, not know that they were killing a human being.
05-5966 +++$+++ 43891 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the Arizona Court, the Court of Appeals, writes that it turns on the finding of criminal responsibility at the time of the criminal offense. It is difficult to imagine that a defendant who did not appreciate the nature and quality of the act he committed would reasonably be able to perceive that the act was wrong. Now, those words, written by the Arizona Court, suggested to me that, in the case of the lemon you're talking about, or in the case of the individual who thinks that the truckdriver was a Martian, they would say he does not know right from wrong, here, now, in this case. That, it seemed to me, is what the Court of Appeals wrote.
05-5966 +++$+++ 43892 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That --
05-5966 +++$+++ 43893 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if that's what they wrote, then they don't adopt the test you're attacking; rather, they do let the very evidence that you want to come in, come in, and it is totally relevant.
05-5966 +++$+++ 43894 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They would, if it was not inconsistent with previous pronouncements of this very same court. But, although it is -- it is error to not instruct a jury on both prongs when Arizona had both prongs, it was harm -- deemed harmless error in State versus Chavez. But if --
05-5966 +++$+++ 43895 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but --
05-5966 +++$+++ 43896 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But not --
05-5966 +++$+++ 43897 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- if Justice Breyer --
05-5966 +++$+++ 43898 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but that it was error, because they are distinct. They are distinct elements. And that is to suggest that a psychiatric psychosis is pervasive throughout an entire person's living.
05-5966 +++$+++ 43899 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if Justice --
05-5966 +++$+++ 43900 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
05-5966 +++$+++ 43901 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- Breyer's explanation is a correct statement of Arizona law, do you still have an argument that your proof should have been accepted, on the first prong?
05-5966 +++$+++ 43902 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-5966 +++$+++ 43903 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what is that argument?
05-5966 +++$+++ 43904 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The argument is that the State proved, circumstantially, his mental state. The judge, as the finder of fact, never -- and stated so in his ruling on this issue -- could consider the lay testimony and the expert testimony on whether it raised a doubt, a single reasonable doubt as to the State's position. And I can point this out on four facts. First of all, the State sought to prove intent and knowledge. They did so by first arguing that Eric's conduct, in driving around the neighborhood with the music playing loud, was to lure a police officer. This is in the record at -- on August 5th, in the opening statement by the State's attorney, page 15; on August 27th, at page 50; and that's in the joint appendix, at 314, in their closing argument.
05-5966 +++$+++ 43905 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And your evidence to the contrary that was excluded would have showed what?
05-5966 +++$+++ 43906 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That it was equally plausible that he was driving around with his music playing loud because he was drowning out the voices in his head, which were --
05-5966 +++$+++ 43907 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, it went to diminished mental capacity. And as I understand Arizona law, it has decided that that evidence can only be presented in the context of an insanity defense.
05-5966 +++$+++ 43908 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that is unconstitutional, Mr. Chief Justice.
05-5966 +++$+++ 43909 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You mean --
05-5966 +++$+++ 43910 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ First of all --
05-5966 +++$+++ 43911 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the Constitution --
05-5966 +++$+++ 43912 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- these are facts --
05-5966 +++$+++ 43913 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- requires a diminished-capacity defense?
05-5966 +++$+++ 43914 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, not the defense. There's a very subtle, but important, distinction between the diminished-capacity defense as an affirmative defense and diminished-capacity evidence. And it's a shame that --
05-5966 +++$+++ 43915 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if you're going to let the evidence of diminished capacity in, on mens rea, you've done, by -- as it were, by the front door, what you can't do by the back door -- i.e., by a diminished-capacity defense -- because you're making the same point. The burdens of proof are different, but you're making the same point.
05-5966 +++$+++ 43916 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the burdens of proof goes to whether, if we did not -- if we did not prevail -- or we did prevail on the second issue, the -- whether M'Naghten allows consideration of this -- whether it makes a difference. In that situation, the burden of proof is on us, by clear and convincing --
05-5966 +++$+++ 43917 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you -- do you think it is unconstitutional for a State to say, "We know perfectly well that it is much more difficult for both cognitive and reason -- reasons -- and reasons of character and training and so on, for some people to conform themselves to the criminal law than others. We know it's harder for some than others. But we don't care how much harder it is, unless it gets to the point that we define as insanity. Because unless we require something as serious as insanity to excuse, everybody's going to have an excuse, and there isn't going to be any criminal law" -- is that unconstitutional?
05-5966 +++$+++ 43918 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it's not.
05-5966 +++$+++ 43919 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
05-5966 +++$+++ 43920 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the --
05-5966 +++$+++ 43921 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't that what the State does when it denies a diminished-capacity -- says, "We will not have a diminished-capacity defense"?
05-5966 +++$+++ 43922 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it is framed as a defense, yes, but if --
05-5966 +++$+++ 43923 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay. Now --
05-5966 +++$+++ 43924 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- it is framed --
05-5966 +++$+++ 43925 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- isn't --
05-5966 +++$+++ 43926 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- as simply --
05-5966 +++$+++ 43927 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but isn't --
05-5966 +++$+++ 43928 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- lay evidence --
05-5966 +++$+++ 43929 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ With respect, isn't that also what the State is getting at when it says, "We don't allow diminished-capacity evidence in on mens rea, which is the State's burden. Rather, we allow it in only on the defense of insanity, so that we can keep it clear, clear that unless the diminished capacity is so great as to amount to insanity, it's not an excuse"? And if that is what the State is doing, is there any -- - anything unconstitutional about that?
05-5966 +++$+++ 43930 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The unconstitutionality of that -- of that procedure is that the State's evidence goes uncontested. The State's evidence -- the State's evidence -- and this has been fundamental to prove mens rea, along with actus, is a fundamental right of the defendant to present a defense to that. And we're talking about presenting facts, not having --
05-5966 +++$+++ 43931 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but it only --
05-5966 +++$+++ 43932 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- a psychiatrist get up there --
05-5966 +++$+++ 43933 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- goes uncontested --
05-5966 +++$+++ 43934 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and --
05-5966 +++$+++ 43935 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- it only goes uncontested if the only way you're going to contest it is to show diminished capacity. You could have contested this evidence by showing that, you know, he was a in a rock band, and he wanted to play the music for -- to advertise the concert, not to lure the police. There are a lot of defenses you can present. What they're saying is, if it goes to diminished capacity, that has to be used to show insanity or not -- - or nothing at all.
05-5966 +++$+++ 43936 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But their justifications for this rule, Mr. Chief Justice, are that it's not reliable. And it is reliable evidence. Both the lay testimony and expert testimony is admitted by the State for other purposes, as well as for the defense in other purposes, and has been found reliable. And this is cited in footnote 15 of our reply brief.
05-5966 +++$+++ 43937 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Goldberg, may I ask you to clarify one thing about your argument? You say that you should have permitted -- been permitted to introduce this evidence to show that this act was not -- - the "act" being, kill a police officer -- was not done intentionally or knowingly. But you seem to indicate that Clark could have been convicted, under the Arizona code, of some degree of murder. Am I right about that? And, if so, what degree?
05-5966 +++$+++ 43938 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Your Honor. Our position -- and I stated this, in fact, in my opening statement to the court, as well as in our motion for a directed verdict after the close of the State's evidence -- was that if the court found that the State had failed to prove, considering all the evidence, including the evidence of his mental illness, that he did not know he was killing a police officer, then he would be found guilty of second-degree murder or manslaughter. And that would be our position as to why this is unconstitutional, in part, because the State chose to define a specific crime as requiring that cognitive element that he knew he was killing a police officer and then --
05-5966 +++$+++ 43939 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what would --
05-5966 +++$+++ 43940 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- sought --
05-5966 +++$+++ 43941 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What --
05-5966 +++$+++ 43942 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to preclude any consideration of evidence that indicated the contrary.
05-5966 +++$+++ 43943 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What was the second -- the definition of "second degree"?
05-5966 +++$+++ 43944 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ "Second-degree murder" is defined as intentional murder, without premeditation. That's one form of second-degree murder in Arizona. Now, I want --
05-5966 +++$+++ 43945 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what --
05-5966 +++$+++ 43946 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to get back to --
05-5966 +++$+++ 43947 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I just ask, what -- if the proof you'd like to introduce is that the defendant considered the police officer to be an alien, why would he have any intent? Why wouldn't your argument go, as well, to second degree?
05-5966 +++$+++ 43948 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because if he knew he was killing what he believed to be a alien who had taken over a human form, then he may have known that he was killing somebody, but not that it was a police officer, because, in his mind, he believed that the police officer was an alien.
05-5966 +++$+++ 43949 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it doesn't go to premeditation. I think that's Justice Ginsburg's point. And I don't see why that isn't correct. It doesn't got to premeditation.
05-5966 +++$+++ 43950 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Scalia, but he was not charged with a premeditated murder.
05-5966 +++$+++ 43951 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but you're saying -- you're saying he could have been charged with second-degree murder --
05-5966 +++$+++ 43952 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As intentional murder.
05-5966 +++$+++ 43953 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- because -- what?
05-5966 +++$+++ 43954 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the -- because the crime of second-degree murder -- because this is a unique --
05-5966 +++$+++ 43955 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does not require premeditation. And I --
05-5966 +++$+++ 43956 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-5966 +++$+++ 43957 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- don't see how this goes to premeditation, anyway.
05-5966 +++$+++ 43958 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Does not go to premeditation. Goes to the question of whether he knowingly killed a police officer. If you take -- second-degree murder is -- includes all the elements of this particular first- degree-murder statute and adds one, and that one element is knowledge and intent to kill a police officer. And that's the additional element that makes second degree a lesser included defense of first degree. And the judge was precluded from considering the fact evidence in this case that indicated that Eric was delusional, that he was schizophrenic, that he was actively delusional at the time of the crime, and he believed that its -- our town had been inhabited by aliens.
05-5966 +++$+++ 43959 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right, suppose he did, he believed there -- it's an alien, which is not immoral, to kill an alien, let's say, if he comes from Mars. I don't know about the morality of that, but -- [Laughter.]
05-5966 +++$+++ 43960 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I'll go with you. I'll say that you're absolutely right about that. Now, suppose, in addition, the judge did consider that. He did consider it, because he thought the person wouldn't know right from wrong if he thought this was an alien. All right? A space alien. Now, suppose that's true. Then what is the problem, from a due-process point of view? After all, you were able to make your claim there. The judge would have heard the evidence. And if the judge believed that that was so, he would have acquitted the individual. Does there remain a due-process problem?
05-5966 +++$+++ 43961 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not if it could be considered as to going to the element, no. But that's not this case.
05-5966 +++$+++ 43962 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Actually, I was --
05-5966 +++$+++ 43963 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does not go to the mental state, in this case, because Arizona law, under State v. Mott, precludes its consideration for that purpose -- -
05-5966 +++$+++ 43964 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, suppose --
05-5966 +++$+++ 43965 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- for any purpose other than --
05-5966 +++$+++ 43966 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I read State v. --
05-5966 +++$+++ 43967 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- whether we made the --
05-5966 +++$+++ 43968 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- Mott --
05-5966 +++$+++ 43969 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- other than whether we meet our burden of proving he is insane, by clear and convincing evidence.
05-5966 +++$+++ 43970 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it your argument that it -- under Arizona law, it goes to excuse the conduct, but not whether the conduct, in fact, occurred?
05-5966 +++$+++ 43971 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does.
05-5966 +++$+++ 43972 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, is that your argument?
05-5966 +++$+++ 43973 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's the way the Arizona --
05-5966 +++$+++ 43974 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that your argument?
05-5966 +++$+++ 43975 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes. Well, that's the way the Arizona rule is drafted. It can go to -- if we can convince the trier of fact that it -- that his delusions prevent him from knowing the nature and quality of his acts, if that was actually included in our statute. But, in our case, we were limited to trying to prove his delusional behavior, his delusional beliefs that the officer was an alien, to show that he did not know right from wrong. And that was it. And that places the burden on us, which runs counter to the fundamental principles of criminal law that are set down in Winship, that it's the State's burden to prove, beyond a reasonable doubt, every element, including this element, and not without any opportunity of the defense to rebut that element.
05-5966 +++$+++ 43976 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's a different question. If, in fact, it came in via the insanity defense, I guess the burden is on the defendant to prove it. Is --
05-5966 +++$+++ 43977 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
05-5966 +++$+++ 43978 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that true? Well, if it comes in via mens rea, then the burden is on the State to disprove it.
05-5966 +++$+++ 43979 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, the burden's not on the State to disprove it, Justice --
05-5966 +++$+++ 43980 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Doesn't the State have to prove, beyond a reasonable doubt, if it came in via mens rea, that the mens rea was there?
05-5966 +++$+++ 43981 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. The burden never --
05-5966 +++$+++ 43982 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And so, the State --
05-5966 +++$+++ 43983 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- shifts from the State.
05-5966 +++$+++ 43984 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- would have to show that, in fact, he was not so insane as to preclude intent.
05-5966 +++$+++ 43985 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In a technical sense, yes. But, as a practical matter, no, because the State would be offering all of their evidence, as they did here, to show that, circumstantially, he had the intent. We would be offering the evidence, which is regularly accepted and is found reliable for numerous purposes in our State, to show that there's a doubt as to whether he had that. And that's a completely different thing than the State attempting -- having the burden on them to disprove it, which this Court has so said in affirmative-defense cases involving self-defense, for example, that the State does not have to disprove that a person was justified or had a reasonable belief for their safety, but that they -- and in the same token, you cannot prevent the jury from considering whether that raises a doubt as to the State's case. And that is the fundamental problem, the fundamental due-process violation here. If there are no further questions, I'd like to reserve the rest.
05-5966 +++$+++ 43986 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Goldberg. Mr. Howe, we'll hear now from you.
05-5966 +++$+++ 43988 +++$+++ FALSE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, may it please the Court: The answer to both questions before this Court today, Do States have the -- have the discretion to define it -- to define the affirmative defense of insanity as the policymakers see fit? And they also have the right to protect that definition by -- as Justice Souter's questions indicated -- from an -- from an attack on that definition by having evidence of diminished capacity of a different -- a different definition of "insanity" from coming in the back door.
05-5966 +++$+++ 43989 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, to prevail, do you think you have to show that, under prong two of M'Naghten, the right-and-wrong prong, that the defendant can prove really everything, and, in fact, did have the opportunity to prove everything, that he seeks to prove under prong one? If it's -- do you have to convince us of that in order to win?
05-5966 +++$+++ 43990 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- no, Your Honor. There are two answers to that. The first answer is that the M'Naghten definition of "insanity," the heart of it, has always been the right/wrong test. And this Court, in Leland, and, I believe, in Powell, as well, have in -- have always referred to M'Naghten as the "right/wrong test." State courts across the country, they go --
05-5966 +++$+++ 43991 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But it's clear, Counsel, though, that the first prong of M'Naghten adds something different, "You don't understand the nature and quality of your acts." In other words, it would be enough, if you recognized both prongs, if he thought this was a Martian, regardless of whether he knew it was wrong to kill a Martian or not.
05-5966 +++$+++ 43992 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, that's correct, Your Honor. But as the lower courts spoke in M'Naghten, we don't look at the -- at the -- at the act in the abstract. As the -- as the Solicitor General's brief points out, it says in here, at page 16, that what the traditional M'Naghten test looks at was his very conduct. And as the Arizona Court of Appeals noted, it would be -- it would be difficult to imagine a situation where someone would know his conduct was wrong, but not know the nature of his act. And I won't pretend that perhaps in some theoretical hypothetical scenario that might -- you know, that might occur. But it's very difficult, indeed, to imagine that. And the Arizona Legislature rationally could, you know -- could have, you know, decided that they will -- that they will reduce the definition to the heart of M'Naghten, which is right/wrong, because the -- you know, the issue of nature and quality will rarely, if ever, come up.
05-5966 +++$+++ 43993 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I am correct in assuming that it is -- and tell me if I'm wrong -- that it is your position, the State's position, that, under the right/wrong prong-two part of M'Naghten, and under the evidence in this case, the court was able to consider, really, all of the evidence that's necessary in order to meet this defendant's defense as to -- as to intent.
05-5966 +++$+++ 43994 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. And so --
05-5966 +++$+++ 43995 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I agree with you. I'm trying to think of some theoretical case where it would make a difference. I can't quite come up with a hypothetical.
05-5966 +++$+++ 43996 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I've -- you know, I've worked with this case for several months, Your Honor, and I haven't come up with one either.
05-5966 +++$+++ 43997 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, wouldn't it make a difference in a case in which an individual understands, number one, as a general matter, that it is wrong to kill people intentionally? He also believes that there are space aliens. And he believes that it is wrong to kill space aliens. But he kills one. Under the full M'Naghten test, under prong one, he would have a defense. But under the M'Naghten test of prong two alone, since he believed it was wrong to kill Martians, he wouldn't have a defense. Isn't that right?
05-5966 +++$+++ 43998 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, for two reasons. The first reason is that the heart of the M'Naghten test is knowing right from wrong. And if a State, in its -- in its discretion, wants to say that those -- that the State will not account for those rare cases where it might make a difference, a State could do that. The second answer, Your Honor, is, as M'Naghten says, at page 723, what we look at when we're examining whether the defendant knew right from wrong, is his -- is the very conduct that he committed.
05-5966 +++$+++ 43999 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, I'm puzzled about one thing. I just -- maybe it's just my stupidity. But assume he thought it was a Martian, and assume he thought -- does he have to think it was wrong to kill Martians? Or supposing he thinks it is not wrong to kill Martians, then what do you do? Does it matter whether he thinks it's right or wrong to kill Martians, in other words?
05-5966 +++$+++ 44000 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My point, Your Honor, is, if he is not actually killing a space alien, there is grave doubt that he would understand his conduct, and that would make rather meaningless, at some practical level, asking the question, "Did you know that your conduct was wrong?"
05-5966 +++$+++ 44001 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not sure I understand the answer. I -- that -- is it -- does he -- let me put it this way, and maybe you can answer yes or no.
05-5966 +++$+++ 44002 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure.
05-5966 +++$+++ 44003 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does he have to think it's wrong to kill Martians?
05-5966 +++$+++ 44004 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. What he -- what he has to understand is what he is actually doing. And if he doesn't actually understand that he is killing a human being, then it's rather academic, in abstract, to ask, "Did you know whether that -- did you know what you thought you were doing was wrong?" But at -- you know, but, again, I suppose, hypothetically, there may be -- you know, there may be a case where that would make a difference. But the State is clearly free to recognize that that's an incredibly rare circumstance and that, "As a matter of policy, we're not going to clutter up the definition of 'insanity' with that." It could -- you know, adding that language, a policymaker could very well decide that would be distracting to a jury or a factfinder.
05-5966 +++$+++ 44005 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The thing that troubles me, just to -- and then you can comment on it -- I'm assuming it's possible they thought he didn't know whether it was a Martian or not, and that he thought he had a mission in life to kill Martians, that they're enemies, they're bad to come, and he wants to kill 'em. If that was the -- what the trial court found, could he be put to death for that killing?
05-5966 +++$+++ 44006 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would raise serious Eighth Amendment concerns, Your Honor, and --
05-5966 +++$+++ 44007 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or could he just be found guilty of murder, or whatever, on those facts?
05-5966 +++$+++ 44008 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If he truly believed that he was shooting an alien when he was actually shooting a human being, he would -- he would certainly have, you know, a very strong case for insanity. But what the factfinder found here was that -- but -- was that his -- was that his evidence that that's what he thought he was doing was --
05-5966 +++$+++ 44009 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but there's a --
05-5966 +++$+++ 44010 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- insufficient.
05-5966 +++$+++ 44011 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- difference in the burden of proof. He has the burden of proof to get the affirmative defense or to get the -- in that category.
05-5966 +++$+++ 44012 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Surely.
05-5966 +++$+++ 44013 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I'm just wondering if he's -- just raises a doubt as -- so there's not proof beyond a reasonable doubt that he knew the person he was killing was either a human being or an -- a kind of individual that it would be wrong to kill.
05-5966 +++$+++ 44014 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-5966 +++$+++ 44015 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If there's just a reasonable doubt on the issue --
05-5966 +++$+++ 44016 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-5966 +++$+++ 44017 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- would he be guilty, or not?
05-5966 +++$+++ 44018 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, that raises the second issue that we're -- that we're discussing today, that, you know, the State, as I've argued, has the right to define "insanity" as it -- as it sees fit. And if you -- if you -- if a -- if a State allows evidence, that doesn't rise to the standard of insanity, to come in, then you -- then he's able to raise whatever his personal definition of "insanity" is through the back door. And the State has a great interest in preserving its definition of "insanity," and its ability to define "insanity" as it sees fit by, as we argued --
05-5966 +++$+++ 44019 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, as you say, it's -- in a way, it's -- in a sense, it comes in through the back door, as you say, but, even coming in through the back door, if it raises a reasonable doubt as to his intent to kill a -- make a wrongful killing, why shouldn't it be admissible?
05-5966 +++$+++ 44020 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It should -- it isn't -- it isn't admissible, Your -- a State can preclude it, Your Honor, because the State has the definite right to define the element of mens rea, and it is -- again, as it sees fit. And as --
05-5966 +++$+++ 44021 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does that mean that it could also exclude the testimony from the lay people or the friends who talked about this person's illness?
05-5966 +++$+++ 44022 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It --
05-5966 +++$+++ 44023 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or are we just talking about the expert testimony?
05-5966 +++$+++ 44024 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Evidence of mental disease or defect, whether it's expert testimony or lay testimony, does not come in under Mott.
05-5966 +++$+++ 44025 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Howe, would you explain to me how the State has proved intentional -- not intentional killing, but of a police officer? If that's the charge, that he intended to kill a police officer, how does the State meet its burden on a police officer if the testimony on the other side is, "I did not understand that this human that I killed was a police officer"?
05-5966 +++$+++ 44026 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What the -- what the State proved in this case, Your Honor, is that, at least, you know, 2 weeks prior to the murder, he indicated a desire to do -- to do something extremely similar to what he -- you know, to what he actually did. There was testimony he had -- he had an extreme dislike toward police officers. On the -- at the time of the killing, Officer Moritz was in -- was in a marked police car, he had a uniform, he turned on his lights and siren, and Clark -- you know --
05-5966 +++$+++ 44027 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I see that on the --
05-5966 +++$+++ 44028 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- pulled over.
05-5966 +++$+++ 44029 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the State side, so the State has introduced evidence from which a trier could conclude he intended to kill a police officer. But he wants to introduce, on the other side, "I didn't have that intent. In fact, I had delusions. I thought I killed an alien." But he's not allowed to introduce that evidence --
05-5966 +++$+++ 44030 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes --
05-5966 +++$+++ 44031 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- to counter --
05-5966 +++$+++ 44032 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Your Honor.
05-5966 +++$+++ 44033 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the State's proof, as I understand what the Arizona law is.
05-5966 +++$+++ 44034 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure. What the Arizona Supreme Court recognized in Mott was -- what the Arizona Legislature did when it enacted its criminal code and it defined its mens rea, it defined the mens rea in such a way -- you know, just as you -- you know, just as you explained in Egelhoff, Your Honor, that the -- that the condition of mental disease or defect does not negate the mens rea. So, what the State has -- what the State has to prove, in general, and had to prove in this specific case, is, the State had to prove that Clark either, one, actually had the -- had the intent to kill a police officer, at least knowing he was a police officer, or killed under -- or killed under circumstances that would indicate that he, knowing -- at least knowingly killed a police officer, but for his mental illness. It's --
05-5966 +++$+++ 44035 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is this an alternative argument, so that, if we accept this argument, we need not ask whether the evidence comes in under prong two, or is this complementary to the argument that the evidence comes in under prong two?
05-5966 +++$+++ 44036 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I'm not quite sure how to answer that, Your Honor. What we -- what we've argued, the -- you know, as far as the first issue, is that a State is free to define "insanity" as it -- as it sees fit, under most, if not all, cases -- or most, if all real cases.
05-5966 +++$+++ 44037 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why is that, Counsel? Let's suppose that the -- one of the cases that come up is a language difficulty. The individual -- maybe he's not in uniform -- identifies himself as a police officer. Could the State have a rule that, "We are not going to allow evidence of language concerns," that the individual didn't speak English, and the officer said, "I'm a police officer," so he didn't know, when he shot him? What is it about mental capacity that allows you to exclude that type of evidence?
05-5966 +++$+++ 44038 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Surely, Your Honor. This Court has always noted that evidence of mental disease or defect is viewed quite skeptically, because lawyers and psychiatrists and psychologists very often can't agree on the meaning or the value or the validity of psychiatric evidence. The State also has an -- has an interest in preventing someone, who has -- you know, who -- there's at least a serious question of mental illness, from being able to forgo an insanity defense, but raise evidence to negate mens rea, in the hopes that he would walk free instead of being found "guilty, except insane," and sent to the State hospital. There's also -- you know, a third policy reason, that, because you -- in your -- because the -- you know, because the gross question of whether someone is insane or sane is a difficult enough question with psychiatric evidence, it raises -- it raises the question to a whole other level of complexity to ask the juries, "Well, if we -- if you find that he is sane, but he has some degree of mental illness, just find -- you know, just how did that mental illness affect his ability to intend." And the State, as a matter of policy, you know, may properly say, "That is -- you know, we're finding on the nature to determine whether someone's insane or not," but it's just too complex a question to ask the -- a jury or a judge, as in this case, to make fine gradations of ability and responsibility.
05-5966 +++$+++ 44039 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Howe, one of the things that puzzled me about your position is, you said, "Under Arizona law, while this doesn't come in under mens rea, it does affect sentencing." I think you said that the -- his mental state is properly taken into account in the sentencing. And, by that, did you mean just the length of the incarceration, or the place of the incarceration?
05-5966 +++$+++ 44040 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, my time is up. May --
05-5966 +++$+++ 44041 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You can -- may answer.
05-5966 +++$+++ 44042 +++$+++ TRUE +++$+++ MR. HOWE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Surely. What -- under Arizona law, if you have a mental illness, that does not rise to the level of insanity if the -- if the -- if the trial court or the jury finds that circumstance exists by a preponderance of the evidence and it can be found as a mitigating circumstance, that he -- that can, in a given case, reduce the sentence imposed. Thank you very much.
05-5966 +++$+++ 44043 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Howe. General Clement, we'll hear now from you.
05-5966 +++$+++ 44045 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Arizona has decided to adopt a particular form of the insanity defense, and it has also decided to protect that substantive decision by channeling evidence about a defendant's mental capacity into an affirmative defense with the burden squarely on the defendant. Neither aspect of that judgment violates the Federal Constitution. And I think, with respect to the substantive decision, there are two elements to it. First of all, Arizona wanted to streamline consideration of M'Naghten and focus on the heart of M'Naghten, which is the right/wrong test. But, equally important, as far back as 1965, in the Schantz case, where they first came up with the rule applied in Mott, they also wanted to not have a diminished-capacity defense in the State of Arizona.
05-5966 +++$+++ 44046 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could the State say that it's the defendant's burden to show that it was not a police officer?
05-5966 +++$+++ 44047 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think the State -- could the State do that? Is that the question?
05-5966 +++$+++ 44048 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-5966 +++$+++ 44049 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think the State --
05-5966 +++$+++ 44050 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because the next question is, Why didn't they -- isn't that what happened here?
05-5966 +++$+++ 44051 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. I don't think they could do that. And I don't think that's what happened here. And I think if you look at the evidence in this case -- I mean, it came in, in sort of a strange way, in part, I think, because it was a bench trial, but I think what the trial court did is say that, "All of the evidence on insanity, all of the evidence in the second phase of the case, is relevant. It's all coming in. I'm going to take it into consideration, but I'm going to take it into consideration only on the insanity defense, not as part of the mens rea defense." And I think that was consistent with Arizona law. What I think would be a harder question -- and let me just say, I think the way that this was postured for the trial court was that the Petitioner argued that all of that evidence comes in for consideration of the mens rea.
05-5966 +++$+++ 44052 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems to me that you introduced the -- my concern by saying that they -- the State can put the burden of proof on the defendant, which we know is generally true in many States with reference to the insanity defense. But when you link it with mens rea, then it seems to me you have a problem.
05-5966 +++$+++ 44053 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think so, Justice Kennedy, but you're absolutely right to say that there's this tradition with insanity, which is quite different than the tradition with respect to other elements of a crime. And I think that goes back to the common law, and goes back to Blackstone. And if you look at Blackstone, and you look at some of the common law cases that this Court cited in its Davis opinion, they describe murder as having several elements. One of them is obviously killing a person, and one is malice aforethought. And then, some of the cases treat a sound mind as a separate element. But, I think, if you look at the history, it's clear it wasn't a true element, because the common law put the -- it started with a presumption of sanity, which you couldn't have with respect to any other element, and said it was perfectly appropriate to put the burden on the defendant. And I think what the common law recognizes is the question of criminal responsibility or insanity, although it has some logical relationship to mens rea, can be separated out and can be dealt with in an affirmative defense. And I think if you don't recognize the State's ability to do that, you end up allowing a defendant to basically sneak in, through, as Justice Souter put it, the front door, all sorts of watered-down insanity defenses in the guise of arguments trying to negate mens rea.
05-5966 +++$+++ 44054 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It does seem as if the argument, that, "Oh, this all comes in under second -- under the second prong," means that if there's a -- there's another inference. It's a -- it's a secondhand argument about lack of mens rea.
05-5966 +++$+++ 44055 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it -- I think, Justice Kennedy, though --
05-5966 +++$+++ 44056 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Kind of, the second-class --
05-5966 +++$+++ 44057 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-5966 +++$+++ 44058 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- sort of evidence.
05-5966 +++$+++ 44059 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I don't think it's second class. I think what Arizona recognized, in the Schantz case and in Mott, in making this rule in the context of rejecting the diminished-capacity defense, is that if you allow a defendant to argue, "My evidence shows that I lack the capacity to form the requisite mental state; and, therefore, that comes in on the mens rea case," you can make that argument in terms of any insanity defense you like. I can argue that, "I lack the capacity to form the requisite intent, because I responded to an irresistible impulse." Well, a State that's decided to have the M'Naghten insanity defense, rather than the irresistible-impulse defense, has to be able to make the judgment, I submit, that, "We're going to have the M'Naghten defense, and we're going to keep it as an affirmative defense, and we're not going to allow that defense, that we've rejected, to effectively come in through the front door." And, to use Justice Souter's --
05-5966 +++$+++ 44060 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That would present a serious constitutional question, wouldn't it? Or what -- I mean, I -- that's -- but I thought some of these questions might be in this case, but I now doubt -- I'm having doubts about that. But suppose the State so limits the defense that an individual defendant, who, by any ordinary psychiatric test, would be viewed as seriously insane, and, therefore, not a person who is capable of being held responsible in any moral sense for the crime, is, nonetheless, going to be convicted of murder? I mean -- and that might be -- come up with irresistible impulse, because the person is totally insane, not like any other human being. Anyone would normally say he lacked the knowledge of -- he's not responsible for what he does. And then, the State, nonetheless, convicts him of murder.
05-5966 +++$+++ 44061 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Justice Breyer, they wouldn't convict him for murder, because he would qualify for an insanity defense. And somebody as insane as you're --
05-5966 +++$+++ 44062 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If he knew right from wrong, if they -- so, I mean, he -- it's not his intellectual capacity that's wrong, it's his ability to control his impulse.
05-5966 +++$+++ 44063 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I mean --
05-5966 +++$+++ 44064 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's not in this case, I agree with you.
05-5966 +++$+++ 44065 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
05-5966 +++$+++ 44066 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But is a variation of that in this case -- namely, the variation -- but we've discussed that at length, and I take it you think that's not in this case.
05-5966 +++$+++ 44067 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think it's in this case, but I don't want to mislead you, which is as -- I think you can hypothesize a situation where somebody would be exonerated by one form of the insanity defense, and not exonerated by a narrow form of the insanity defense. And I don't think it follows that somebody that's in that margin has a constitutional right to make up the difference, effectively, through a mens rea argument. And, otherwise, I think you -- I mean, you --
05-5966 +++$+++ 44068 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But we don't have to reach that question here, in your view.
05-5966 +++$+++ 44069 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think you --
05-5966 +++$+++ 44070 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or do we?
05-5966 +++$+++ 44071 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would think that you might. I mean, I think you could say -- because I think what happened here is, all of this evidence came in on the back door through the insanity defense.
05-5966 +++$+++ 44072 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if we have to reach it, this -- they're arguing we do, because they're saying the person is so insane he doesn't know whether this is a human being or a sack of lemons. Now --
05-5966 +++$+++ 44073 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But then he --
05-5966 +++$+++ 44074 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- he said that they didn't consider that in the insanity defense. And he's not attacking the burden of proof, at least not in this Court. And so, I -- do you think we do have to -- that we have to --
05-5966 +++$+++ 44075 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
05-5966 +++$+++ 44076 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- assume that he's right on that?
05-5966 +++$+++ 44077 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think you have to reach that question here. But you do have to reach a related question, I think, which is, I think the trial court here very clearly, in applying Mott, prevented the Petitioner from making a diminished-capacity argument. And then --
05-5966 +++$+++ 44078 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is "diminished capacity," if it is -- what is that?
05-5966 +++$+++ 44079 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's an argument that is basically a variation on the insanity defense. It's partial responsibility. It was basically the governing law in California until it was --
05-5966 +++$+++ 44080 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But partial responsibility does not -- insanity -- they use the words "insanity" and "diminished responsibility." I took the word "insanity" to mean the kind of mental state that would, in fact, show a lack of intent. I took the word "diminished responsibility" to mean there is intent, but it's excusable.
05-5966 +++$+++ 44081 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think you can draw that --
05-5966 +++$+++ 44082 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, am I --
05-5966 +++$+++ 44083 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- distinction, but I do want to make clear that there are arguments here that you could make in a different State that you can't make in Arizona because of the substantive decision that, "We don't want to have a diminished-capacity defense, and we don't want to have that policy judgment frustrated by having the evidence come in through the front door." And to use Justice --
05-5966 +++$+++ 44084 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask --
05-5966 +++$+++ 44085 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Souter's example --
05-5966 +++$+++ 44086 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- this question? Supposing the evidence is equally divided on the question of whether he thought it was a Martian who he had a right to kill. Could he be convicted of murder, constitutionally?
05-5966 +++$+++ 44087 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think he could, Justice Stevens. As I understand --
05-5966 +++$+++ 44088 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because then --
05-5966 +++$+++ 44089 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the hypothetical, we're --
05-5966 +++$+++ 44090 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- there would be --
05-5966 +++$+++ 44091 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- basically --
05-5966 +++$+++ 44092 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- not proof beyond a reasonable doubt that he knew he was killing a human being, and it was wrong to do so.
05-5966 +++$+++ 44093 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think it would -- it might depend on exactly what the statutory definition of "murder" in the State was.
05-5966 +++$+++ 44094 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I don't -- I don't -- I'm just wondering, as a constitutional matter, forgetting all the -- as a constitutional matter, can a man be convicted of murder if the evidence is equally balanced on the question of whether he knew it -- he did anything wrong and -- or knew that he was killing a human being?
05-5966 +++$+++ 44095 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Maybe not, Justice Stevens. It just depends on the way that the statute deals with it. Because, in my view of the statute, if somebody really thought -- if they had to kill a human being, and they thought, "I wasn't doing it. I was killing an alien," maybe that could come in, on mens rea, but if --
05-5966 +++$+++ 44096 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Have we ever held that an insanity defense is required, that a State cannot simply abolish insanity defenses?
05-5966 +++$+++ 44097 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Scalia, you have not held --
05-5966 +++$+++ 44098 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I didn't we had.
05-5966 +++$+++ 44099 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that. And I think -- but, equally, I don't think a State would -- is required to have a diminished-capacity defense. And --
05-5966 +++$+++ 44100 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, is a State required to adopt any particular mens rea for murder? Is there a constitutional requirement as to the minimum mens rea that can be -- can be set for the offense of murder?
05-5966 +++$+++ 44101 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so. I mean, I think it's very difficult to find, in the Due Process Clause, the tools necessary to superintend those kind --
05-5966 +++$+++ 44102 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But here, there --
05-5966 +++$+++ 44103 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of decisions.
05-5966 +++$+++ 44104 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- was a charge, "intended to kill a police officer." It could have been just "intended to kill." And I think Mr. Goldberg conceded that "intended to kill" would have been a proper conviction, but not "intended to kill a police officer" --
05-5966 +++$+++ 44105 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-5966 +++$+++ 44106 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- unless he's allowed to counter that add-on.
05-5966 +++$+++ 44107 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect, Justice Ginsburg, I think that starts to confuse the hypotheticals with the real case, because I don't think Petitioner's argument was that they had no idea that this person was a police officer, and he thought he was killing an alien. I think their argument was much more one for insanity, and that maybe there were other explanations for the conduct. But the psychological testimony here suggests that maybe he sometimes thought that his mother was also an alien, but he kind of knew it was his mother, as well. And so, I don't really think that maps up with the argument they've made. The one point I want to leave you with, though, is, as Justice Souter said, everybody agrees that there's no due-process requirement that Arizona have a diminished-capacity defense. Well, it doesn't make any sense to say that they have to have that implicitly with the burden on the State at the same time. Thank you.
05-5966 +++$+++ 44108 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, General. Mr. Goldberg, you have 4 minutes remaining.
05-5966 +++$+++ 44110 +++$+++ FALSE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is a due-process guarantee that the defendant can present evidence in his own defense. No matter how the Chambers line of cases is viewed by the court, this Court made clear, in Montana v. Egelhoff, that in the absence of any valid State justification -- and I'm quoting now, from the plurality decision -- "exclusion of exculpatory evidence deprives the defendant -- it's very basic to have the prosecutor's case encounter and survive the crucible of meaningful adversarial testing." And that --
05-5966 +++$+++ 44111 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that certainly doesn't include the right to present any evidence you want.
05-5966 +++$+++ 44112 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's the difference between --
05-5966 +++$+++ 44113 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You couldn't have presented evidence that this person was, in fact, a Martian.
05-5966 +++$+++ 44114 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Mr. Chief Justice. And it's not that we're asking to -- this Court to affirmatively rule that all of this evidence comes in, just that all of it cannot be excluded, per se, and that the trial judge is, just as in any other type of evidence, any other fact or opinion evidence, serves as the gatekeeper under the rules of evidence to decide whether it's more prejudicial or it's more probative. But Arizona has decided, only for this purpose, that this evidence is inherently unreliable. And then they've taken it to the point where they have proven somebody guilty of murder in the first degree of killing a police officer without allowing him to raise a reasonable doubt as to whether he knew he was killing a police officer. And that specific argument was made, contrary to what the Solicitor just stated, in my motion for directed verdict that I made in this case.
05-5966 +++$+++ 44115 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was it a reasonable question whether he knew it was a police officer or whether he knew it was a human being?
05-5966 +++$+++ 44116 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Whether it was a police officer. I moved the court for a directed verdict at the close of the State's evidence, and argued to the court that if he found -- the judge, as the factfinder -- that, in his delusional mind -- and again re-urged this at the close of our evidence -- that he believed he was killing a police officer, then the court could find him guilty of second-degree murder or manslaughter. And I asked the court to do that, and the court refused to do that. So, the --
05-5966 +++$+++ 44117 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In the --
05-5966 +++$+++ 44118 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- court precluded any consideration of this evidence.
05-5966 +++$+++ 44119 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, I -- the best I can find in that Court of Appeals opinion, at the moment, is that they do reject the idea of diminished responsibility, on Mott -- on the ground of Mott. That's true. They say, "Don't even consider it." But I didn't think diminished responsibility went to the question of whether he had the requisite intent. I thought insanity went to that, as they use those words. What is "diminished responsibility," if it isn't, "We admit the intent -- we admit that he intended to kill the individual, knew it was wrong, but he isn't as responsible as an ordinary person would be"? What is -- -
05-5966 +++$+++ 44120 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's not --
05-5966 +++$+++ 44121 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- it, if it isn't that?
05-5966 +++$+++ 44122 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's a fact that -- a fact that he did not know he was killing a police officer.
05-5966 +++$+++ 44123 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He thought he was killing another individual.
05-5966 +++$+++ 44124 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
05-5966 +++$+++ 44125 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does that --
05-5966 +++$+++ 44126 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Or an alien.
05-5966 +++$+++ 44127 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does the State have to -- does the Constitution have to let you off if that's the situation?
05-5966 +++$+++ 44128 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's not "let you off," with all due respect. It's "judge somebody based on" --
05-5966 +++$+++ 44129 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, you --
05-5966 +++$+++ 44130 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- "their personal" --
05-5966 +++$+++ 44131 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right, but --
05-5966 +++$+++ 44132 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- "culpability."
05-5966 +++$+++ 44133 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- but does the State have to say, "We are going to convict you of a lesser offense," in the Constitution?
05-5966 +++$+++ 44134 +++$+++ TRUE +++$+++ MR. GOLDBERG +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The State -- the State has to allow the defendant to present his evidence and have it considered, if it's relevant, nonprivileged, and reliable, for a proper purpose. And here, it was offered for a proper purpose, just as in Chambers and in Rock, and in all the cases that have been before this Court, where this Court has held so. I wanted to add -- answer one question that was raised earlier about whether a State could define "murder" without a requisite mens rea, essentially, which is -- or a specific intent, as the State seems to suggest that Arizona has done, inferentially, under the Mott decision. This Court held, in 1895, in Davis versus United States, that, "No one" -- and I'm quoting here -- "No one, we assume, would wish either the courts or juries, when trying a case of murder, to disregard the main principle existing at common law and recognized in all cases tending to support the charge below to make a complete crime cognizable by human laws, which includes mens rea and an actus rea."
05-5966 +++$+++ 44135 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Counsel. The case is submitted.
05-5992 +++$+++ 44140 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Zedner v. United States. Mr. Zas.
05-5992 +++$+++ 44142 +++$+++ FALSE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The Speedy Trial Act protects the public, as well as the personal interests of defendants, by mandating the prompt disposition of Federal criminal prosecutions. In this case, the Government and the district court failed to comply with the clear requirements of the act. As relevant here, the act provides that the trial of a defendant who pleads not guilty and who is released on bail shall commence within 70 days after the indictment. The act, however, is not as inflexible as it sounds. The act permits numerous categories of delay to be excluded from the 70-day limit. The act also provides an enforcement mechanism. If more than 70 nonexcludable days elapse between the indictment and the trial, the indictment shall be dismissed. This case concerns two periods of delay, that each exceed the 70-day time limit, and I'd like to focus initially on the longer period of delay. This is the delay that took place between 2000 and 2001, after a competency proceeding was taken under advisement. Just to put this delay in context, a competency hearing was held on July 10, 2000. The judge solicited post-hearing briefs. The matter was taken under advisement on August 23rd, and in our papers, we asked the judge to find Petitioner competent and to set the matter for trial as soon as possible. We noted that at that point the case was already more than 4 years old. We offered to waive a jury and proceed to a bench trial immediately. And at that point, the case sat idle for the next 195 days. Now, the act excludes only the first 30 days of that period. That's section 3161(h)(1)(J). For reasons that have never been explained, the court sat on the proceeding. When 7 months went by, we filed a motion.
05-5992 +++$+++ 44143 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about, Mr. Zas, that the court thought it was home free on the Speedy Trial Act? After all, it had gotten a waiver for all time. Isn't that why the 165 days?
05-5992 +++$+++ 44144 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That may be, Justice Ginsburg, but -- but as of our filing after the competency proceeding, we asked for a trial as soon as possible. So putting aside whether the waiver had any validity at all, which I'll get to shortly, the waiver had no effect when we came in and asked for a trial. Otherwise, defendants would have no right to a speedy trial and --
05-5992 +++$+++ 44145 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but on -- on that one, the -- the Second Circuit said that he was incompetent, and you could have excluded the time on (4) because (4) allows you to exclude time when he's incompetent. And if, in fact, the district judge is sitting there thinking he's incompetent, then the failure is simply a failure to write down his reason why it's excluded. I guess there's uncertainty here as to what reason was the district judge excluded that time, and it's a little bit hypothetical for the reason that Justice Ginsburg mentioned. But if you were to lose on the first point, then I guess on this point, the thing to do would be to send it back and determine whether, in fact, the judge intended to exclude on the ground of competency, in which case his failure was simply a failure to note down his reason, which is not required by the act.
05-5992 +++$+++ 44146 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Breyer, I have several responses for that. The court only made a finding that Mr. Zedner was incompetent on March 21, 2001. Prior to that time, the competency issue was under advisement. It couldn't be that Mr. Zedner's incompetency, if it existed before the finding, is what prevented the court from declaring him incompetent.
05-5992 +++$+++ 44147 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're not quite through your answer yet, but is there also a requirement that the competency determination be made within 30 days? Or am I -- am I in error on that point?
05-5992 +++$+++ 44148 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor is -- is exactly right. Any proceeding under section 3161(h)(1)(J) is excluded but only for 30 days once it's taken under advisement.
05-5992 +++$+++ 44149 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm sorry. My act must read differently. My act says in (4), any period of delay resulting from the fact that the defendant is mentally incompetent. It doesn't say anything about 30 days.
05-5992 +++$+++ 44150 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that -- but that's different, I take it, from the judge's delay in making the finding of competency.
05-5992 +++$+++ 44151 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Your Honor. Yes. On -- Justice Breyer, on your reading, a -- a court could sit indefinitely with the competency proceeding under advisement.
05-5992 +++$+++ 44152 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, that's why, see, I guess on this point, we'd have to send it back because if, in fact, the judge had determined in his mind within the 30-day period that the person was incompetent or he was incompetent in fact, then that could have been his reason. I'm not sure what to do about this point in any case, and I understand that you think he wasn't incompetent, or at least it hadn't been so found. The Second Circuit seemed to think he was incompetent because that was their basis. So I guess if he was, it's excluded, and if he wasn't, it isn't excluded. And I don't know. The Second Circuit said he was. So maybe you should have another chance to argue this before the Second Circuit.
05-5992 +++$+++ 44153 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I'm -- I'm just trying to envision what that remand would look like. If the Court were -- if the -- if the case were to go back to the Second Circuit and then go back to the district court for a finding that this delay resulted from Mr. Zedner's incompetency, that finding would be clearly erroneous. There is no -- there is no basis --
05-5992 +++$+++ 44154 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The delay -- the delay was not because we can't try this man because he's incompetent, and until he's rendered competent, we -- we have to stay proceedings. That wasn't the basis at all. It was just I haven't made up my mind yet.
05-5992 +++$+++ 44155 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Your Honor, and the act --
05-5992 +++$+++ 44156 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which is what is specifically precluded by the requirement that -- that you act within 30 days, and -- and all the rest of the time, the clock is running.
05-5992 +++$+++ 44157 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor.
05-5992 +++$+++ 44158 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I take it the trial -- the Speedy Trial Act doesn't say if the judge is thinking about something, it requires him to make an order.
05-5992 +++$+++ 44159 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. It -- it says that the court has decide the matter within 30 days or the clock will start running. Now, the court, in a particularly difficult or novel question, could -- could enter an order of ends of justice exclusion and exclude perhaps an additional period of time.
05-5992 +++$+++ 44160 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I was going to ask you about that. Or could he vacate submission because he wants new evidence or something? Could you vacate submission of the -- of the first competency hearing in order to take new evidence?
05-5992 +++$+++ 44161 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Your Honor. And that matter would -- would be back to a -- a situation in which there's examinations or hearings or argument or post-hearing brief, and -- and the judge can take as long as the judge wants there. But once the court has the matter under advisement, the court only has 30 days.
05-5992 +++$+++ 44162 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So your view is that we should say that the Second Circuit's statement that the defendant could not have been tried because, at that time, he was incompetent, that we should simply say that's false, that the Second Circuit is wrong to say that.
05-5992 +++$+++ 44163 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, not quite, Your Honor. The question -- the question is did more than 70 nonexcludable days elapse during this period or not. Once the finding was made in March, that's when Mr. Zedner was incompetent. No further findings was necessary -- were necessary, and the time is then automatically excluded. The time prior counts toward the 70-day period whether or not he was in some metaphysical sense incompetent before then. The question is not whether he could have been tried or not in that period. The question is did more than 70 days elapse. And if the judge had decided this matter sooner, Mr. Zedner would have been -- received the treatment he ultimately got much sooner, and the trial would have occurred much sooner. That's the purpose of the Speedy Trial Act. Now, the Government has abandoned the Second Circuit's holding to the effect that harmless error analysis applies to a violation of the 70-day limit. That's a wise position for the Government take -- to take, given this Court's holding in Bozeman which interpreted essentially the same language. The Court there held that where the statute says the indictment shall be dismissed, there's no room for harmless error analysis. That's the remedy that Congress chose. So in this case on the -- on the -- this period of delay we're talking about, more than 70 days elapsed, and the remedy must be dismissal.
05-5992 +++$+++ 44164 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, we've been talking about the competency period. I take it the first period was one of just repeated requests for extensions. That's January '97 until May '97.
05-5992 +++$+++ 44165 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-5992 +++$+++ 44166 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And that's this -- that's the first of the two periods that's involved here.
05-5992 +++$+++ 44167 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. This was -- this was a -- an adjournment that was requested by Mr. Zedner's first lawyer for the stated purpose of investigating whether the Onited States Bond, supposedly issued by the Ministry of Finance of USA, was genuine. The court, having already obtained a purported waiver of a speedy trial for all time, granted the continuance, but made no order of excludable delay, as it had done previously, made no --
05-5992 +++$+++ 44168 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't know if it makes any difference to the case. Do you -- do you think the court could have made findings that would have been justified? I mean, it takes a while to find an expert to say that a bond is genuine when it spells United with O, but -- (Laughter.)
05-5992 +++$+++ 44169 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It could take for all time, Your Honor. I think it would be a very close question as to whether that could survive appellate review. That may well be an abuse of discretion to find, after having let the matter -- delayed the matter already 10 months, to grant another 3 months for that purpose.
05-5992 +++$+++ 44170 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are there -- are there cases in which the judge's findings -- let's assume that he made the findings -- are set aside for abuse of discretion on -- on review for a violation of the Speedy Trial Act?
05-5992 +++$+++ 44171 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is the standard that the courts of appeals have generally applied. I can't recall a case where the court actually reversed an ends of justice finding. There may well be one based on a legal error where it was some obvious ground that -- that is not a basis for an adjournment such as --
05-5992 +++$+++ 44172 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Who -- who could complain? Because in -- in all of these instances, it was the defendant who sought the enlarged time. In fact, even though the judge had given -- gotten this all-purpose waiver, he didn't give defense counsel as much time as defense counsel asked for to -- to investigate the genuineness of the bond.
05-5992 +++$+++ 44173 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Ginsburg, you're right. Certainly the Petitioner and his counsel at the time requested this adjournment. They did get the full adjournment they requested, but the judge said that that would be the last adjournment and that the matter would be set for trial then. But whether that time is excludable or not is answered by the statute. The ends of justice provision recognizes that defendants or prosecutors and judges on their own motion would seek or grant continuances, but that's not enough under the statute. The statute is -- although it's flexible, is rigorous. The court must make a finding that the ends of justice outweigh the public's and the defendant's interest in a speedy trial.
05-5992 +++$+++ 44174 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you think it's -- it's not harmless error if they didn't make the finding but -- but could have?
05-5992 +++$+++ 44175 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Your Honor. It's not harmless for the same reason the later period is not harmless because the statute says that if the defendant is not brought to trial within the time limits, the indictment shall be dismissed. And it makes very clear that in the absence of an ends of justice finding, the time is not excludable.
05-5992 +++$+++ 44176 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but isn't -- isn't the difference that in the latter period, the court took no action, and there is a mandate on the court to act? With respect to this earlier period, the court did act. Incidentally, it did exactly what the defendant wanted it to do, but it acted so that the only -- the only reason for arguing error here is, in effect, a clerical reason. He didn't say the magic words or make the magic conclusion. If, in fact, that's because he couldn't have made it, no question. You -- you got a violation of the statute. But if he could have made it and -- and simply didn't say the magic words, you're in a very different position here from what you are in -- in the case of -- of the failure to act on the -- on the competency issue.
05-5992 +++$+++ 44177 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, I would -- I would not characterize this as a clerical error. Congress considered this provision the heart of -- of a scheme. This was where --
05-5992 +++$+++ 44178 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, let's put it this way. It's a failure to speak rather than a failure to act. In -- in the latter case, no action. In this case, action, in fact, action as more -- it's as requested. But a failure to speak contemporaneously with the action, that's different.
05-5992 +++$+++ 44179 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would disagree, again with the characterization that it's just a failure to speak. The act requires a careful weighing of the public's interest, the ends of justice, the defendant's interest. So it's not just a matter of speaking. This is --
05-5992 +++$+++ 44180 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, we don't -- we don't know. I mean, on the face of the record, we don't know whether he weighed or whether he didn't weigh. In the second case, we know that he didn't act, and -- and action is what he's got to -- to accomplish. But whether he weighed or not, we don't know. He just didn't say whether he weighed.
05-5992 +++$+++ 44181 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, and the court also didn't make the finding --
05-5992 +++$+++ 44182 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
05-5992 +++$+++ 44183 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- or state the reasons that the statute specifically requires. And the question for the Court is what flows from that failure. And the answer is given in the sanctions provision. It says that if more than 70 nonexcluded days elapse, the indictment shall be dismissed. Now, that provision itself builds in flexibility to take into account exactly what Your Honor is talking about. A judge may dismiss without prejudice to re-prosecution depending on various factors, including whether it was just an oversight, a failure to recite words. So that's where --
05-5992 +++$+++ 44184 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. I -- I --
05-5992 +++$+++ 44185 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's where this -- this distinction that you're drawing can be taken into account.
05-5992 +++$+++ 44186 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it's -- it requires -- in order for us to conclude that that's the only way it can be taken account -- into account, we -- we'd have to conclude that -- that rule 52 was, in effect, partially repealed and made inapplicable implicitly here without any reference to it. And that's -- that kind of, let's say, implicit modification of -- of one of the rules is, as a matter of normal interpretation, disfavored.
05-5992 +++$+++ 44187 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I think that the principle -- well-accepted principle that the more specific provision will govern over the general governs here. So the remedy provision, the sanctions provision here says that the indictment shall be dismissed whether it's 71 days that elapsed or 200 days or 5 years.
05-5992 +++$+++ 44188 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there's always some sanction for error, and the point of the harmless error rule is to determine whether that specific sanction should be applied.
05-5992 +++$+++ 44189 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but there's not always a -- an express command from Congress as to what the remedy should be. Once Congress says the indictment shall be dismissed, there's no room for a court to say that the indictment shall not be dismissed unless there's some harm shown. So this specific provision trumps the more general provisions of rule 52(a).
05-5992 +++$+++ 44190 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'd like to know how -- how do we know that the judge didn't set forth orally his reasons for finding that the ends of justice outweigh the interest, et cetera? Is that in the record what he actually said?
05-5992 +++$+++ 44191 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you only --
05-5992 +++$+++ 44192 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because I don't know that you'd have to use the exact words, the ends of justice served. You know, you don't have to -- I'd like to read what he actually said, and where -- where is that? It's not on page 192, which is somebody's opinion. But rather, if I want to read the words, where do I look?
05-5992 +++$+++ 44193 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, this -- the only place you will find the words here are the transcript of the status conference on January 31, 1997. That's the joint appendix beginning at page 80, and you will not find a finding regarding the ends of justice. You will not find mention of the -- the public interest or any of the other balancing factors in the act --
05-5992 +++$+++ 44194 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He didn't think he needed it. He had a perpetual waiver.
05-5992 +++$+++ 44195 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. This judge stopped complying with the act on November 8th, 1996 because the court ruled that the waiver for all time was valid. That was a -- an injudicious finding, to say the least. 5 minutes worth of legal research would have shown that all the courts of appeals at the time had already held that the waivers were invalid. So the court didn't do a balancing, didn't think it was doing a balancing. The court has a colloquy in which it appropriately expressed skepticism about the need for this delay, and the court does, in effect, what Congress was concerned about. It indulged defense counsel and said, well, if you don't care enough, I don't care enough. Take 3 more months. That's basically what happened.
05-5992 +++$+++ 44196 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Zas, are you going to talk about estoppel?
05-5992 +++$+++ 44197 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. The -- the Government, for the first time, here in this Court has unveiled a new doctrine that hadn't been in the case before. It's no longer relying on either the waiver for all time or the sort of mini-waiver for the -- the January delay. But it argues that Petitioner is estopped from challenging the 90-day delay in 1997. There are several problems with the Government's argument, but the most obvious one is that the only conduct that the Government cites to trigger the estoppel is the waiver.
05-5992 +++$+++ 44198 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, isn't there something more than a waiver here? I mean, waiver is a very broad term. I mean, it would cover a situation, for example, in which the Government asked for time and the defendant said, okay, I waive. In -- in this case, there's -- there's an affirmative act on the part of the defendant. He's not merely waiving. He is affirmatively asking for action on the part of the court, and subject I guess to cutting down the period somewhat, he got what he asked for. This is something more than waiver. This is, in fact, a -- a grant of specific relief requested by him, and he now wants to turn the tables based on receiving exactly what he asked for. That's more than waiver.
05-5992 +++$+++ 44199 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I can't disagree with what you've said, but -- but the --
05-5992 +++$+++ 44200 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I can. Did he ask for a perpetual waiver? I thought the way the colloquy went, the judge said, no, you know, I can't give you a waiver unless you'll -- unless you'll make it a perpetual waiver. And then he said, okay, I'll make it a perpetual waiver. Wasn't -- wasn't the -- the initiative for the perpetual waiver from -- from the court?
05-5992 +++$+++ 44201 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Your Honor.
05-5992 +++$+++ 44202 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And hasn't my brother cleverly changed my hypothetical? Because I was -- (Laughter.)
05-5992 +++$+++ 44203 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- I was not talking about the perpetual waiver. I was talking about the waiver for whatever number of days he actually took in -- in that case, which was what? 90 days?
05-5992 +++$+++ 44204 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-5992 +++$+++ 44205 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
05-5992 +++$+++ 44206 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think -- I think there are two different waivers that --
05-5992 +++$+++ 44207 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
05-5992 +++$+++ 44208 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that are before the Court. So, Justice Souter, your question is about not the waiver for all time, but the more limited action in requesting and obtaining the continuance. Now, ordinarily without a statute like this, the defendant getting what he wants would amount to a waiver and the defendant could complain. For example, an evidentiary ruling. If -- if the defendant wants to allow -- he doesn't object to evidence coming in, that's it. He can't later argue that it should not have come in. The problem here is that the statute -- the Congress knew that this kind of thing would happen. Defendants would want delay. Defendants would be quite happy to put off their trial for as long as they could.
05-5992 +++$+++ 44209 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ As long as they're not in jail pending trial.
05-5992 +++$+++ 44210 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. That's right. If they're out in the community, Congress wanted those people to be tried. And so the ends of justice provision specifically says that a request for a continuance granted by the court is not enough to exclude time. There has to be both a finding and a statement of reasons in the record to support the finding before the time will be excluded. Justice Breyer --
05-5992 +++$+++ 44211 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Maybe you could say then that it's the Government that has the right. If it's the Government that has the right, then Government should have objected. I mean, the problem, of course, is obvious, that it's a little hard on the district judges that people come in and both sides tell them what you have to have here is a waiver. Are you sure you won't raise this against me later? I'm positive. I swear. You mean you absolutely swear a thousand times that no matter what I do and have delay, you will never raise this as an error and it's fine? Yes. Okay? So he says, okay, fine, done. You win. Then he raises it as an error. That's rather -- called sandbagging the judge. And obviously, one would look to -- or I would look to ways to avoid that, but you're telling me I can't avoid it, and that's what Congress wanted and so be it. Is that right?
05-5992 +++$+++ 44212 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's -- it's partially correct, Your Honor.
05-5992 +++$+++ 44213 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How is it not correct? That's what I'm --
05-5992 +++$+++ 44214 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's not correct because I would -- I would disagree with the characterization, if that's what Your Honor is doing, of -- of anything that happened here as being sandbagging.
05-5992 +++$+++ 44215 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm not talking about here. I'm saying that in your -- if I adopt your position in this case, I would have to have the same position, I would think, in the most egregious cases. Wouldn't I? Because the only reason I'd adopt it here is because Congress wanted it no matter what.
05-5992 +++$+++ 44216 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-5992 +++$+++ 44217 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that right?
05-5992 +++$+++ 44218 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that -- that is --
05-5992 +++$+++ 44219 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. Then you're -- then am I right in characterizing?
05-5992 +++$+++ 44220 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that -- that is what the -- that is what the statute says. But Your Honor shouldn't -- shouldn't tarry too long about the consequences because if this Court holds, as we ask the Court to hold, that waivers are no good -- waivers have to be treated essentially as a request for a continuance -- this problem goes away.
05-5992 +++$+++ 44221 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Maybe. I mean, judges are very busy. Not all the prosecutors get the word. It's very hard to ask district judges to raise something on their own in the face of lawyers who are telling them the opposite. So you say, oh, they'll all know. I've noticed there are a lot of opinions we write that they don't know about -- (Laughter.)
05-5992 +++$+++ 44222 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- until, say, the lawyers point them out.
05-5992 +++$+++ 44223 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, the alternative, if you go sort of the Government's route here, is to essentially perpetuate the confusion that brought us here in the first place. The Government essentially argues, well, you can't waive, but sometimes you can waive. We're not quite -- we're not going to tell you exactly when you can waive. That's going to put district judges in a -- in a worse position, in a more confused position.
05-5992 +++$+++ 44224 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This -- this was a judge who apparently was doing this as a -- a matter of standard practice. He had a form that he whipped out. It must be a very old form. It looked like it was typed on a regular typewriter.
05-5992 +++$+++ 44225 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that's right, Your Honor. This form was -- was preprinted or pretyped.
05-5992 +++$+++ 44226 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And Gothic print, right?
05-5992 +++$+++ 44227 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It could have come from my chambers. (Laughter.)
05-5992 +++$+++ 44228 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And as we point out in the reply brief, the judge had taken a strong legal position 20 years earlier that the requirements of the act could be waived.
05-5992 +++$+++ 44229 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I was going to ask what is the date of the Speedy Trial Act? 1975?
05-5992 +++$+++ 44230 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think President Ford signed it on January 3rd, 1975.
05-5992 +++$+++ 44231 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it was widely publicized among the judiciary then.
05-5992 +++$+++ 44232 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, yes. Yes, and you know, this is not a new statute. Judges are used to -- to complying with it. Prosecutors are used to doing it. Frankly, I've never seen a waiver for all time before. It's not the kind of thing that will happen and it should never happen again.
05-5992 +++$+++ 44233 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can you make an ends of justice finding for all time? Could he start at the beginning, any continuance I grant is granted after my weighing the different factors set forth in the statute and it's in the ends of justice?
05-5992 +++$+++ 44234 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Your Honor. In fact, there -- there is a circuit split on -- on whether you can -- whether a court can grant an open-ended continuance. I think Your -- Your Honor's ends of justice continuance would amount to a waiver or a suspension of the act. Thank you very much.
05-5992 +++$+++ 44235 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. Mr. Joseffer.
05-5992 +++$+++ 44237 +++$+++ FALSE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: On the first of the time periods, it might help if I could start by laying out three basic principles. The first is that a defendant may not opt out of the act by waiver. The second is that a -- a defendant is, nonetheless, precluded from challenging the grant of a continuance that he requested if the continuance satisfies the substantive ends of justice standards of the act and the defendant's waiver or other litigation conduct induced the court to commit the procedural error of not recording an ends of justice finding in the record. And the third related point, although it's not presented here, is that the courts of appeals have recognized that if a defendant requests an ends of justice continuance and the court in a procedurally regular manner grants the ends of justice continuance, the defendant cannot later be heard to contend that there was -- the ends of justice were not really satisfied even though he had told the court that they were. We think the reasons for those three rules stems from the reason that defendants cannot opt out of the act in the first place. Although the act does not contain an express anti-waiver or anti-estoppel provision, it does manifest an intent to bind defendants to its requirements in order to protect the public interest in a speedy trial. If a defendant could opt out of the act altogether and thereby obtain delays that are not authorized by the act, that would thwart the public interest in a speedy trial.
05-5992 +++$+++ 44238 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but as we've indicated, the -- the judge was the one that opted out of the act by this regular practice of requiring the perpetual waiver, or whatever we call it.
05-5992 +++$+++ 44239 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I guess there -- there are couple things there. One is that we are not -- we -- we are not here relying on the waiver for all time. Our point, instead, here is that when defendant requested the continuance at issue here, it was the defendant that said, Your Honor, I -- I need a continuance and I waive my rights so you should give me the continuance and then also said he needed additional preparation time. The court then -- and this -- this is at J.A. from about page 81 to 85. The court then said, well, why do you need the time? And the court discussed with him for a while why he really needed additional preparation time, reminded counsel that, notwithstanding the waiver, this was a criminal case and criminal cases do need to be tried, and ended up balancing the defendant's desire for preparation against the need for a speedy trial by granting a much shorter continuance than requested. And that is actually an entirely appropriate ends of justice balancing, ends of justice reasoning.
05-5992 +++$+++ 44240 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's pretty hard to read those pages as if they were anything other than what they seemed to be on their face, that he didn't worry about the Speedy Trial Act because he thought that it had been waived.
05-5992 +++$+++ 44241 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think you're absolutely right that the court was not, at that point, thinking in terms of applying the Speedy Trial Act.
05-5992 +++$+++ 44242 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, then why isn't that the end of that, that the -- if you agree that the defendant can't waive it, well, the reason that he got the continuance is because he waived it, otherwise there would have been something else done and -- or at least might have been.
05-5992 +++$+++ 44243 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. No. Our -- I mean, we think there are two related points. One is that a genuine opt-out of the waiver and a general opt-out of the act, an attempt to obtain time that's not excludable under the act is not permissible because that would thwart the public interest in a speedy trial. But where the error is a purely procedural one, a failing to record findings in the record regarding a continuance that is permitted under the substantive standards of the act, then holding the defendant to the waiver, under a theory of either waiver or estoppel -- in our view doesn't matter which --
05-5992 +++$+++ 44244 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How can we say it's purely procedural with respect to the first time? I mean, the reason that was given is I have to -- I need this time to find out if these really peculiar looking bonds are genuine. Now, the -- the Second Circuit said -- and I don't understand why they said this -- this is a complex case so that continuance is warranted. Was this a complex case?
05-5992 +++$+++ 44245 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Complex defendants can make for complex cases. (Laughter.)
05-5992 +++$+++ 44246 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And this is, I think, the ultimate example of that. But in addition, it's important to remember that at the end of this 90-day period that was granted, defense counsel withdrew on the ground that his client was still insisting that he present the frivolous defense that -- that the bonds were genuine. And before withdrawing and telling the court that, the -- the defense counsel had a very serious duty to his client and the court to continue to investigate what his client was saying was the defense and to continue to try to work with his client and try to come up with a plausible defense strategy. Now, it didn't work and counsel had to withdraw, but I don't think he can be faulted for trying.
05-5992 +++$+++ 44247 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did the Government at any point tell the -- tell the court, Your Honor, we think the act requires you to make a specific finding and we request you do that?
05-5992 +++$+++ 44248 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. The Government -- I mean, on the one hand, the Government did not seek these delays, did not encourage the waiver, did not rely on the waiver at the -- at the relevant times. However, at the time -- I mean --
05-5992 +++$+++ 44249 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because, I mean, you're -- you're coming in and saying, oh, well, he waived, but certainly the Government could -- could have asked the -- asked the district court to make the necessary findings.
05-5992 +++$+++ 44250 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, and at the time of -- of this -- this was about 10 years ago now -- the Second Circuit recently held that waiver is not ordinarily appropriate, but sometimes is. And so everyone in the bar, I mean, has been acting under some -- some confusion, we think, that -- that frankly, to some extent, persists to this day. We think that the best way to clarify matters going forward is -- is a combination of the two things I mentioned earlier, to say, first, defendants cannot opt out of the act by waiver, to just try to discourage waivers. But to say that mistakes will happen and that when a -- a continuance -- when a court grants a specific continuance that is authorized under the substantive standards of the act, that at that point in time, the defendant's waiver or other conduct that induces a court not to make the findings prevents the defendant from trying to seize on a purely procedural violation on appeal because at that point -- remember, the -- the reason for -- for a -- a partial anti-waiver rule here is not that there's a specific anti-waiver or anti-estoppel provision in the act. It's that Congress has, on the whole, manifested an intent to protect the public interest in a speedy trial. But if the time is excludable under the substantive standards of the act, a purely procedural error does not diminish the public's interest in a speedy trial because the --
05-5992 +++$+++ 44251 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what are you hypothesizing? That the court actually made this finding in its mind but just didn't express it? Or are you hypothesizing that the court could have made it but didn't make it, never even went through the mental process?
05-5992 +++$+++ 44252 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We think that, legally speaking, all that matters is that the court could have, and that once --
05-5992 +++$+++ 44253 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could have made it. So -- so we're going to -- why can't life be simple? We're going to have to have trials all the time as to whether, in this hypothetical situation, this finding could have been made. I mean, you know, this creates subsidiary litigation that we really don't need.
05-5992 +++$+++ 44254 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In -- in some instances, it may add to an additional degree of complexity, although I'll say that whatever that might be, it's still less than the complexity of retrying the case. And also, I think more often than not, on the face of the record -- I mean, these -- these determinations can be made. Here, for example -- I mean, if -- if a court grants a continuance for any reason, it's going to ask the reasons why. Here, the court questioned counsel as to whether he really needed more time, explained his basic reasoning for doing so. And so when -- when it's apparent on the record that a continuance could have been granted, that's certainly a much less complex inquiry than trying the case.
05-5992 +++$+++ 44255 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose you ask the judge. You say, Judge, 2 months ago the defendant came to you and said, I waive the Speedy Trial Act. Now the defendant says, Judge, I now would like a month's continuance. The judge says, I'll give it to you. The opposing counsel says why. He says, because he waived it. Now, you're telling me that, one, he cannot waive it, but two, even though the judge said I did it because he waived it, that still itself is okay. We go ahead and let him exclude it because the judge might have done something differently. Is that what you're saying?
05-5992 +++$+++ 44256 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, either -- you would need more on the record there because if the record was limited to what you just said, I don't think there would be a basis for --
05-5992 +++$+++ 44257 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it's possible you could argue, looking at the record, that the judge should have tried it -- should have excluded it on a different basis. He should have excluded it on the basis of the interests of justice, et cetera required. So what the judge said, just to make it clear, is I'm not even thinking about this different basis, though I might. I'm doing it just because he waived it. And now you're telling me, I take it, he can't waive it, but nonetheless, the error is harmless because he waived it, or something like that.
05-5992 +++$+++ 44258 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At this -- at this point we're not at the harmlessness point yet. This would be --
05-5992 +++$+++ 44259 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's not harmless. You're saying it's a procedural error.
05-5992 +++$+++ 44260 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, and --
05-5992 +++$+++ 44261 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So we don't say the judge is right because he waived it. We're saying he's right because the judge made a procedural error. I'm having a hard time following that.
05-5992 +++$+++ 44262 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, anytime you're talking about a waiver or estoppel theory, the premise is that there -- there may well have been underlying error, and the question is whether the defendant is precluded. And here, there's no question there was an underlying error because the findings were not required -- were not reported in the act. But the act does -- again, does not contain an express anti-waiver provision, and the speedy trial interests, which are the reason for reading, to some extent, an anti-waiver provision, are -- are not diminished when the court could have properly excluded the time from the act. And to the contrary, speedy trial interests would be harmed in that manner for three reasons. First, it gives defendants every reason to delay in hopes of manufacturing a speedy trial violation. Second, waiver and estoppel are generally important to the efficient and orderly conduct of litigation, and if you take those -- that out, what you will get is less efficient litigation and more delays, which Congress recognized when, as part of the Speedy Trial Act, it required the courts to develop management plans for the efficient handling of cases.
05-5992 +++$+++ 44263 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But, you know, Congress could have -- could have written it the way -- the way you're proposing it. Congress could have said, you know, when there -- when -- when there is good cause for the continuance, the clock won't run. It didn't say that. It -- it said the judge has to make a finding. I mean, don't we have to give that some effect? You're saying it really doesn't matter whether he makes the finding or not. So long as there was good cause so that a finding could have been made, that will be enough.
05-5992 +++$+++ 44264 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Our -- our view is that, I mean, like anytime the waiver or estoppel is at issue, one could say that that's being read into the statute, but the point, as this Court has explained in Hillen and -- and Mezzanatto, is that those are background principles of law that presumptively apply. Our view is this: a court should make the finding, but a -- a defendant may not challenge the finding if a few conditions are satisfied. First, the defendant was the one requesting the continuance and benefiting from it. Second, the finding could have been made on the record in the case, and third, the defendant is responsible in some way for inducing the court not to make the finding. It could be by a waiver or it could be the defendant's -- or it could be the court saying, I've decided it's appropriate to make an ends of justice finding. Now, let me record this in the record, and defense counsel saying, Your Honor, please don't bother. It's late. We've got four more things to do. We don't need the findings. In that circumstance as well, it's not a waiver, but defense counsel would have -- the defendant at that point should not be heard to complain about the absence of a finding that should ultimately --
05-5992 +++$+++ 44265 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it seems to me the Government is equally remiss for not pointing out the obligations of the court under the act. But let me ask you this. Probably you can respond to that as well if you like. What are the problems with reindicting -- I mean, how -- how is the Government hurt if it can reindict? I recognize that it's costly to the system, et cetera. But is there any real prejudice there?
05-5992 +++$+++ 44266 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I mean, there are two concerns. One is, as you said, the -- the cost of having to do a brand new jury trial after you've already done a fair one. The second is that -- I mean, in this case, the trial was 3 years ago.
05-5992 +++$+++ 44267 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, of course, I'm -- I'm supposing that after this rule, there would be no trial because there would be -- if -- if you don't prevail, there wouldn't be a trial.
05-5992 +++$+++ 44268 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, I -- well, if dismissal was required in this case, I think dismissal would be without prejudice as opposed to with prejudice and therefore --
05-5992 +++$+++ 44269 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I'm asking are there -- are there severe costs with that when there's been no trial?
05-5992 +++$+++ 44270 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If there had not already been -- oh.
05-5992 +++$+++ 44271 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There's -- there's no trial.
05-5992 +++$+++ 44272 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This is pretrial.
05-5992 +++$+++ 44273 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The -- the action is dismissed for a Speedy Trial Act violation because the position of the Petitioner here is accepted by this Court and the Government just reindicts.
05-5992 +++$+++ 44274 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, there's already been a trial.
05-5992 +++$+++ 44275 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm hypothesizing that there hasn't been.
05-5992 +++$+++ 44276 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
05-5992 +++$+++ 44277 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The case is dismissed.
05-5992 +++$+++ 44278 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I see. It's dismissed before trial.
05-5992 +++$+++ 44279 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And there is a reindictment.
05-5992 +++$+++ 44280 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. I understand.
05-5992 +++$+++ 44281 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How costly is that to the system other than getting the grand jury together?
05-5992 +++$+++ 44282 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sorry. I understand. Yes, if -- if pretrial -- if the district court dismisses, then the Government ordinarily could reindict for -- if the court dismisses without prejudice, the Government ordinarily could reindict very quickly, and the cost to the system would not be great. The real cost to the system comes in when the district court does not dismiss and holds the trial because then the trial has been held and then by the time you get back down to the trial court -- I mean, in this case, it'll probably be 4 years. And at that point, sometimes you can do a retrial, but sometimes memories fade, witnesses are lost, other sources of proof are lost. And as a result, you end up with -- with fairly -- you can end up with very severe consequences in situations where the first trial is held.
05-5992 +++$+++ 44283 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In this -- is there a statute of limitations problem in -- in these cases if their dismissal is without prejudice?
05-5992 +++$+++ 44284 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. There's a -- the Judicial Code contains a -- a provision that generally contains a 6-month grace period for limitations following dismissal by a court. So we would have -- I mean, by now the limitations period would have run, but we would have 6 months to -- to reindict.
05-5992 +++$+++ 44285 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel --
05-5992 +++$+++ 44286 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. --
05-5992 +++$+++ 44287 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the -- the argument you're making is really one of invited error, and I'm not sure it even applies on these facts. I mean, the -- the defense lawyer didn't, as you hypothesized in one of your answers, say something to the effect of don't worry, you don't need to make any findings of the ends of justice or anything like that. He just said I'm waiving my speedy trial rights, and that may mean he's not gong to argue, you know, that the ends of justice don't justify it or whatever. He's just saying I don't have any objection. Maybe he assumed that the judge would go on and say, okay, I'm making the findings required by subsection 8(a).
05-5992 +++$+++ 44288 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that when a -- when a litigant expressly waives his rights under an act, that the very natural effect of that is to make the court think he does not have to follow that act and that would include the findings requirement.
05-5992 +++$+++ 44289 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, in this case, the judge told the defendant I've got a solution to this. Here's my form.
05-5992 +++$+++ 44290 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. It was the -- I mean, in context, there were two -- at the earlier status conference that does not relate to this hearing, but at the earlier status, it was defendant who said, Your Honor, I want a continuance and I want to waive my rights. In response to defendant's invocation of a waiver, the court said, well, if you're going to waive, you have to waive for all time, because the court was concerned the defendant would selectively waive until it was inconvenient for the court to try the case. We don't defend the court's response to that, but the point is that even then it was the defendant who raised waiver first. And then at this status conference regarding this particular continuance, it was -- defendant was the only one talking about waiver. Defendant said -- defendant initially raised it and said I -- I waive my rights, then came back to it again. I waive my rights, just give me the continuance. And the court said -- I mean, the court did say that, well, if you've already waived, you don't have to again. But he then said that, notwithstanding the waiver, he couldn't give the defendant an open-ended amount of time because this is a criminal trial. So it was defendant who was -- who was pressing this at all times.
05-5992 +++$+++ 44291 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you have any idea how often this -- this sort of situation comes up where there's an alleged violation of the act and then a denial by the district court of a pretrial motion to dismiss?
05-5992 +++$+++ 44292 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that happens with some regularity. There's quite a lot of court of appeals case law in which defendants are protesting speedy trial violations. I mean, actually quite a lot.
05-5992 +++$+++ 44293 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You -- you made an argument a moment ago which included the point that he asked for this particular relief and represented what he needed to do if he got the relief, the continuance. You -- you came right up within a step of -- of making a judicial estoppel claim, although you did not use those terms. I have two questions. Did the Government raise at least the -- the theory of judicial estoppel in the litigation before it reached this point? And the second question is, even if the Government did not raise that term, asked for -- for estoppel to be applied in those terms, did the Government make the same argument that you have just made which emphasizes the fact that he asked for it and he represented the reasons for -- for needing it?
05-5992 +++$+++ 44294 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. In the -- in the court of -- the answer your first question, in the court of appeals -- we referred to our argument as one of waiver rather than estoppel, in part because that's what the Second Circuit had in -- in the past referred to it as being. And yes, in substance, we were -- we -- we raised -- I mean, we were raising a similar waiver argument below as the one that we are now. We don't think it matters greatly whether one calls it waiver or estoppel, except that we do think that estoppel is the -- is the -- the preferable way of looking at because we're -- as -- as has been pointed out, we're talking here not just about a waiver, but also about a situation where a defendant requests relief --
05-5992 +++$+++ 44295 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. The difference between acquiescence and -- and potentially sandbagging.
05-5992 +++$+++ 44296 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I mean, here the -- the defendant is affirmatively requesting relief on the basis of one -- one position and is now seeking dismissal based on the fact that his first position was accepted and received that relief. And that's a situation in which judicial estoppel is -- is, frankly, tailor-made for, and I think the fact that judicial estoppel prevents that very situation helps to underscore the -- that if -- if Congress really wanted to --
05-5992 +++$+++ 44297 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Except -- except where there's a public policy against what you want to estop him into doing. I mean, it seems to me for the same reason that you don't allow a waiver, you shouldn't allow an estoppel. There's a public policy against it. The -- the Congress wanted these things tried promptly, and -- and whether he merely waives or -- or goes further and affirmatively causes the court to do something which it shouldn't have done, you're just as much violating the policy it seems to me.
05-5992 +++$+++ 44298 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the -- I mean, I -- I agree that -- I mean, whether it's waiver or it's estoppel, if Congress manifests an affirmative intent to displace those doctrines, they don't apply. And it doesn't matter which -- which one you're under. But the -- the affirmative intent that Congress manifested here, notwithstanding -- I mean, remember, there's no express anti-waiver or anti-estoppel provision, but the affirmative intent is to protect the public's interest in a speedy trial. And that -- that intent is entirely protected when a delay could be -- is permitted by the substantive standards of the act, and the only error is a procedural one that the defendant helped to induce the court to commit. And I mentioned -- in that circumstance, there's not only no delay that was not contemplated by Congress. But as I mentioned before there are three reasons that permitting a defendant to seek dismissal in that circumstance would actually harm speedy trial rights. First, the incentive for defendants to delay. Second, the inefficiency, and the third is that, remember, one of the main reasons, if not the main reason, that Congress wanted speedy trials was that it was concerned that defendants out on bail were committing crimes. And Congress' concern with crime prevention is not served in the least by letting a defendant seek dismissal of an indictment based on a purely procedural error that he helped to cause.
05-5992 +++$+++ 44299 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If -- if what you say is true, I don't know why it makes any difference that the defendant led the court into it. If you -- if you believe that this is just a procedural nicety that was not complied with, why shouldn't you do the same thing when -- when the court fails to make the finding but could have made the finding whether or not the defendant was the one that led him into it?
05-5992 +++$+++ 44300 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the question then would be harmless error analysis. I mean, we agree the statute requires the finding to be made. It was not made. Therefore, there was an error. And it's the defendant inducing the court to --
05-5992 +++$+++ 44301 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's harmless error because he -- the evidence of guilt was substantial? What -- how does the harmless error work?
05-5992 +++$+++ 44302 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. If -- if one moved beyond the inducement and into harmless error, the question would be -- would be that there here the -- the error -- I think as I mentioned before, the error here would be the failure -- would -- would be the clerical one, the error to record findings in the act. And I think -- and we would agree that the act -- pointing to the second question now. But the act does expressly say that if a defendant is not tried within 70 relevant days, the indictment shall be dismissed. And that suggests that harmless error analysis would not be appropriate to the question whether 71 or 81 days of delay is appropriate because Congress said 70 is 70. But when the error is not that, but the error is failing to record something in the record, that's a distinct type of error that's not covered by the mandatory dismissal provision. And it could be considered harmless, especially in circumstances where the record reflects --
05-5992 +++$+++ 44303 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why do you -- why do you put that in a separate category? It's kind of unusual for Congress to put that type of a requirement in the statute. They could have normally -- I suspect they normally would write it. You know, you -- you -- they're excludable only if the court finds in the interest of justice. But they went further and they said if the court sets forth orally or in writing in the record of the case. I mean, they set it forth as a separate requirement. I don't know that we can give it sort of a second-class status.
05-5992 +++$+++ 44304 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I agree that -- that section (h)(8) is different from the incompetency exclusion, for example, which I'll turn to in a minute, in that it does tie the -- the findings to the excludability. And that makes the -- the harmless error argument that we have on that issue, obviously, more difficult than on the -- the incompetency issue. But it's still -- I think it ultimately comes down to how you -- how you view the error. Is the error not trying someone within 70 days, or is the error not recording a finding in the record? And if -- if you focus on -- on the findings aspect --
05-5992 +++$+++ 44305 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or say the error is not complying with the act.
05-5992 +++$+++ 44306 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, and then -- but the -- but the -- I mean, ordinarily that -- just not complying with the act generally is harmless, and the question would be is -- is that -- because, remember, the -- the only thing that's subject to mandatory dismissal is not trying someone within 70 relevant days.
05-5992 +++$+++ 44307 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, within 70 relevant days counted as the statute requires them to be counted, which includes the requirement of this finding set forth in the record before you can stop the clock running for -- you know, for some period. I don't think that that's -- I don't think that's very complicated.
05-5992 +++$+++ 44308 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. And then, I mean, if that's the way it's viewed, then on the first time period, the (h)(8), then we would stand on our -- stand on either of the -- the waiver and estoppel argument or also on the possibility that another middle ground would be if what we're missing is a finding in the record, the other option would be to remand for the court to clarify the record.
05-5992 +++$+++ 44309 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which court?
05-5992 +++$+++ 44310 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, no, that -- pardon?
05-5992 +++$+++ 44311 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The -- is that -- is there any reason to believe that the judge, of course, would clarify it and say the ends of justice, if we took your remand solution.
05-5992 +++$+++ 44312 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. And obviously, ordinarily courts would not be doing that. It's a very inefficient thing to do in the ordinary course. But here, where the transcript does reflect the court actually considered, on the one hand, the defendant's need for additional time and, on the other hand, the interest in trying -- trying criminal cases sooner rather than later and balanced them by granting a lesser --
05-5992 +++$+++ 44313 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
05-5992 +++$+++ 44314 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does seem more reasonable. But --
05-5992 +++$+++ 44315 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems to me that in this case, that -- that all-purpose waiver that the judge, and not for the first time, proposed is -- is what caused all this. And -- and my question that I had is knowing that this was the judge's practice -- and indeed, he had written about it -- did the U.S. Attorney's Office try to do something to say, look, the act doesn't permit that kind of thing?
05-5992 +++$+++ 44316 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At -- at the time, I mean, there was -- there was -- especially this was 10 years ago. There was, in some sense still is, quite a lot of confusion in the bar on these issues because there's no express anti-waiver provision. There's an end, and as I said, the -- the Second Circuit in Gambino had held waiver is not ordinarily appropriate, but had not said it was never appropriate. So there was some confusion. But what -- what the Government never did was to encourage a waiver or to encourage any of these delays either. Now, in this -- I blurred to some extent in the second question presented and talking about the -- the remand and the harmlessness. On the second question presented, the first question is whether the incompetency exclusion applies in the first place. In our view, it's a very simple exclusion. If -- if delay results from the defendant's incompetency, the time is excluded, and if the defendant is incompetent, delay results from that because a person cannot be tried when he is incompetent. Because we have a finding here the defendant was incompetent during the relevant period of time, the exclusion applies.
05-5992 +++$+++ 44317 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it was not known at the time that he was incompetent. And -- and therefore, that could not have been the reason that he was not being tried. The reason he was not being tried was that the -- that there was pending before the judge the inquiry into whether he was competent.
05-5992 +++$+++ 44318 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- the act has a lengthy series of these resulting from exclusions, and with the exception of (h)(8), which is unusual in terms of the ends of justice finding, these operate automatically as this Court said in Henderson. It's -- it's an objective standard. If -- if the defendant could not have been tried then, then the delay resulted, at least as a concurrent cause, from that. And there's -- and it's -- it's very important to understand too that in the context of especially the -- the exclusion for when pretrial motions are pending, the courts of appeals have unanimously held that a more complicated causation analysis not only is not required but would throw a wrench into the practical application of the act because what happens, for example, is someone files a pretrial motion and the parties assume that the -- the clock is turned off then for at least some time. But a defendant later argues that, well, the same delay would have resulted anyway because, say, the judge was on vacation or the judge was planning on recusing himself and reassigning the case. And at that point, the courts have recognized that you don't look to try to figure out which of several potential causes is -- is the relevant one. They're all potential objective concurrent causes, and any other approach make it very difficult to administer the act.
05-5992 +++$+++ 44319 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You really don't know the answer of whether the clock is running until the finding is made. If the -- if the judge finds that -- that he's not incompetent, well, too bad. You know, the Speedy Trial Act requires dismissal. On the other hand, if the judge finds that he is incompetent to be tried, there hasn't been a violation of the act. I mean, it's a very strange situation. And it also, as -- as the -- the other side points out, it -- it puts considerable pressure on the judge when -- when he is in violation of the Speedy Trial Act, to find that the individual is incompetent because, otherwise, there has to be a dismissal.
05-5992 +++$+++ 44320 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I don't think it's appropriate to presume that an Article III judge would have a defendant imprisoned and committed if he was not actually incompetent. But you are right that the incompetency exclusion is -- is, along with the unavailability of the defendant or witness exclusions, are somewhat unusual in that you could discover, after the fact, that they applied. But the reason is that if -- if you had tried to try him sooner, you would have discovered the same thing. He actually was incompetent. The witness actually was unavailable. And from a Speedy Trial Act perspective, it makes no sense to say the speedy trial clock ran because you didn't try a defendant when he was legally unable to be tried.
05-5992 +++$+++ 44321 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you -- are you relying to any extent on something that I think you brought up? He also could not have been tried because the prosecutor was having a difficult pregnancy and she was on extended leave, which was occurring in this period?
05-5992 +++$+++ 44322 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We haven't relied on that because that would have been the -- that -- that's an appropriate basis for an ends of justice continuance, but no continuance was ever sought or granted for the relevant period. So we -- although that is true that an ends of justice continuance might have been granted for that reason, there was no continuance of any kind granted during that period. So we're relying solely on the plain language of the incompetency exclusion. If you think about it --
05-5992 +++$+++ 44323 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even if we agree with you on the incompetency exclusion, we still have to reach the waiver for all time question. Correct? You don't argue that the incompetency goes back that far, do you?
05-5992 +++$+++ 44324 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. We -- we -- no. With respect to the first time period, we're relying on the specific waiver that was tendered in connection with that actual continuance.
05-5992 +++$+++ 44325 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're not suggesting he was incompetent during that period as well.
05-5992 +++$+++ 44326 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, that defendant was incompetent the whole time?
05-5992 +++$+++ 44327 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-5992 +++$+++ 44328 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. There was -- actually earlier on in the case, there was -- there were three competency hearings. The first one, he was held competent, and that -- that was earlier on in the proceedings. The finding of incompetency in the record here is the defendant found the defendant incompetent at the end of the relevant period based entirely on evidence and argument presented at the beginning of the relevant period. So when the -- when the court held that the defendant must be incompetent based on that evidence, he was saying the defendant -- necessarily was saying the defendant must have been incompetent during the entire relevant period based on the evidence from the beginning of the period.
05-5992 +++$+++ 44329 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Am -- am I correct that the -- the particular provision that you think is relevant here is -- is (h)(1)(A) on page 4 of the -- the appendix in the blue brief?
05-5992 +++$+++ 44330 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I'm sorry. It is (h)(4). (h)(1)(A) deals with proceedings regarding the defendant's incompetency.
05-5992 +++$+++ 44331 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I've -- I've got it. Okay.
05-5992 +++$+++ 44332 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that applies whether the defendant is competent or not. We're relying on (h)(4) which applies when the defendant was incompetent.
05-5992 +++$+++ 44333 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What -- what do you make of the language, any period of delay resulting from the fact that the defendant is mentally incompetent? I mean, the claim here is that -- that the -- that the delay did not result from that fact, but simply from the failure of -- of the judge to make that determination so that what you're really doing is making a harmless error analysis.
05-5992 +++$+++ 44334 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm happy to move to that as well, but before that, I mean, it is -- there can be concurrent causes and there can be objective concurrent causes. And the defendant could not have been tried during the relevant time period, and therefore, objectively speaking, that was -- I mean, if the -- if the court had tried to try him --
05-5992 +++$+++ 44335 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay, but isn't that a --
05-5992 +++$+++ 44336 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- during the relevant time period, he couldn't.
05-5992 +++$+++ 44337 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- isn't that a harmless error analysis rather than a -- a subsection (4) analysis?
05-5992 +++$+++ 44338 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think Congress -- you're right that it's based in part on the principle that, look, of course, he couldn't have been tried then. But, no, Congress also made that relevant whether there's a violation at all. Just to simplify things, let's take that off the table. If the defendant is incompetent, there certainly couldn't be a constitutional Speedy Trial violation. Let's just take it off the table for -- for the act purposes as well. The argument has been made that --
05-5992 +++$+++ 44339 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- but I guess my only point is that (4) does not say any period during which the defendant is mentally incompetent. It says any period of delay resulting from the fact that he was mentally incompetent, and this did not result from that fact until at the end of the period the judge says, oh, I find him incompetent, so that any period after that would be the result of the fact that he was incompetent. But the -- the delay up to that point was attributable solely to the judge's failure to make a determination.
05-5992 +++$+++ 44340 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If I could answer the question.
05-5992 +++$+++ 44341 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If it was a question, yes.
05-5992 +++$+++ 44342 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the fact -- (Laughter.)
05-5992 +++$+++ 44343 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It was -- it was cleverly disguised, but it really was a question. (Laughter.)
05-5992 +++$+++ 44344 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I -- I'll try to give a cleverly disguised answer.
05-5992 +++$+++ 44345 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't -- isn't that so? (Laughter.)
05-5992 +++$+++ 44346 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the fact existed all along. I mean, the -- the fact doesn't come into existence once it's found. The finding reflects the fact that the fact of an incompetency had existed during the entire relevant period.
05-5992 +++$+++ 44347 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Zas, you have 4 minutes remaining.
05-5992 +++$+++ 44349 +++$+++ FALSE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, I'd like to pick up on questions that both you and Justice Scalia asked regarding the -- the language of the statute. One of the Court's bedrock principles is that judges are not free to rewrite the statute that Congress has enacted. This statute and the whole statutory scheme here speaks very clearly and very precisely, and it would be unwise, even if permitted, for the Court to start tinkering with it because the whole system will start to unravel if the -- if the requirement of express findings and reasons turns into a could have/would have/should have contest, in which case trial judges will take the act less seriously knowing that the court of appeals could make the findings for them. And it will make the court of appeals' job harder because they'll be guessing after the fact what discretionary decision the trial judge would have made. This statute -- the ends of justice provision is very clear. The Government has cited no ambiguity, and it controls. Because the findings were not made, whether they could have been made or should have been made or would have been made, they weren't made, and therefore, the time ran and dismissal is required. Now, the Government proceeds under the false assumption that but for the waiver, the judge would have granted this continuance on January 31, 1997. There's absolutely no support for that in the record. Even before this occasion, on November 8th, 1996, which was the prior court appearance, the court said you're not getting another adjournment unless you waive for all time. So there's no reason to think that at this later date the court was about to say, well, forget the waiver, okay, I'll give you 3 months. It's -- it's the waiver that is providing the basis for the exclusion. The judge, if pushed, would have said, no, we're going to trial soon. No waiver, no more time. So it's a false assumption. I'd like to turn to the second period again. The Government again assumes that when the judge found Mr. Zedner incompetent in March of 2001, that that is a retroactive determination that he was incompetent from July, August, September, October, November, et cetera. And as the Court is aware --
05-5992 +++$+++ 44350 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It goes back some way because he's looking at reports from those earlier times. It's not only effective as of the date he makes the finding.
05-5992 +++$+++ 44351 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- the finding is effective from that point forward. That has to be the case because, as Justice Scalia pointed out, it's important for the parties to know, as matters are unfolding, what the speedy trial clock is. That way the Government knows to push the cases that are approaching the 70-day limit to trial. People can't know that answer if everyone is waiting to find out what the outcome of a pending motion is. And the defendant, in fact, couldn't move for dismissal under the act until the -- the judge said after 1 or 2 years, I find the defendant incompetent.
05-5992 +++$+++ 44352 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What do you mean --
05-5992 +++$+++ 44353 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I guess you can be -- I'm sorry, go ahead.
05-5992 +++$+++ 44354 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If the judge, when he finally found the defendant competent, had said expressly, and I -- I made this determination in my mind shortly after the hearing and the -- the briefs that were submitted at that time, but now I'm putting it on the record, that wouldn't be sufficient?
05-5992 +++$+++ 44355 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. If the judge had said, I knew this all along back when I heard the evidence that this defendant was incompetent, that would be an even more egregious violation. The court is not supposed to sit and just let the defendant sit out on the streets for month after month after month when -- when the defendant is incompetent. The court is supposed to make a -- a prompt finding.
05-5992 +++$+++ 44356 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where does the act say that, that there has to be a finding at the time?
05-5992 +++$+++ 44357 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the court said -- the act says it in -- in section (h)(1)(J). That's the -- the -- in the appendix to the blue brief on page 5. The act excludes time while the proceeding is -- is going on for examinations and hearings, et cetera, but at the end, it excludes only delay reasonably attributable to any period not to exceed 30 days during which any proceeding concerning the defendant is actually under advisement by the court. So -- so if the --
05-5992 +++$+++ 44358 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. But there's no provision, is there, that says that the finding under (b)(4), that there has to even be a finding under (b)(4), much less when the finding has to be made?
05-5992 +++$+++ 44359 +++$+++ TRUE +++$+++ MR. ZAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If I may answer the question, Your Honor. Well, the only finding that the court has to make under (b)(4) is that the defendant is incompetent. That automatically will exclude the time going forward until the defendant is restored to competency.
05-5992 +++$+++ 44360 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
05-608 +++$+++ 44364 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first this morning in MedImmune, Incorporated, versus Genentech. Mr. Kester.
05-608 +++$+++ 44366 +++$+++ FALSE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: As of this morning, it is exactly 70 years ago to the day, minus 4 months, that this Court heard argument challenging the new Federal Declaratory Judgment Act of 1934, in an action to construe an insurance contract. And exactly 25 years -- 25 days later, in a unanimous opinion written by Chief Justice Hughes, joined by Justices Stone, Brandeis, and others, the Act was held fully consistent with Article III of the Constitution. This morning, you are here because an action was brought for a declaratory judgment that a biomedical manufacturer need not play -- pay large sums, under a license as patent royalties, under a patent it contends is invalid, unenforceable, and not infringed, but is paying royalties under protest in the meantime. That complaint was ordered dismissed by the Federal Circuit as outside the Article III judicial power of the United States. In detail, the Petitioner, MedImmune, is a biotech company, formed in 1988. During the 1990s --
05-608 +++$+++ 44367 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Kester, would it --
05-608 +++$+++ 44368 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes?
05-608 +++$+++ 44369 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- would it -- would your position be different if the contract contained a specific -- the license -- a specific provision specifying that the licensee may not sue?
05-608 +++$+++ 44370 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it would not, Your Honor, because --
05-608 +++$+++ 44371 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You -- do you think such a provision would be enforceable?
05-608 +++$+++ 44372 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I doubt it would be enforceable. It would be a matter -- under the Lear case, Lear against Adkins, it would be an -- it would be an affirmative defense if such -- if such a claim were raised. This case is here at the level of subject-matter jurisdiction.
05-608 +++$+++ 44373 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Excuse me, I don't -- I don't understand what you just said. You mean, it would be enforceable; that if such a suit were brought, the licensor could raise that contractual provision as a basis for dismissing the suit. Is that --
05-608 +++$+++ 44374 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under 12- -- under 12(b)(6) --
05-608 +++$+++ 44375 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
05-608 +++$+++ 44376 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- perhaps.
05-608 +++$+++ 44377 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, then it is enforceable.
05-608 +++$+++ 44378 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, but --
05-608 +++$+++ 44379 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
05-608 +++$+++ 44380 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- your point is, it's not jurisdictional.
05-608 +++$+++ 44381 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's not jurisdictional, exactly, Justice Souter. This is a jurisdictional ruling. And that's all that this Court granted certiorari on.
05-608 +++$+++ 44382 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but as a matter of policy, we, at some point, either in this case or some later case, may have to address the question of whether or not such a provision is enforceable. If it is, we may be -- not be talking about much. It's just going to be boilerplate in every license agreement, and that's the end of it. And it --
05-608 +++$+++ 44383 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And so --
05-608 +++$+++ 44384 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- but it -- on the other hand, it may be that there are reasons not to enforce this, so that we don't have courts flooded with lawsuits, et cetera, et cetera.
05-608 +++$+++ 44385 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And those reasons, I would suggest, Justice Kennedy, were taken care of in Lear, for the most part, in 1969. Provisions in license contracts that prevent challenges to the contracts are not enforceable under the patent laws of the United States. But then, I -- as I was saying, that is a matter of patent law. That's not a matter of jurisdictional law. We're here --
05-608 +++$+++ 44386 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, let's look at what might be a matter of jurisdictional law. I take it, from your position, there's nothing preventing Genentech from suing, either, is there? In other words, to establish the validity of their patent.
05-608 +++$+++ 44387 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It has -- it has happened, on various occasions, that patentees have brought suit to establish the validity of --
05-608 +++$+++ 44388 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Against licensees?
05-608 +++$+++ 44389 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Against licensees and others. And the --
05-608 +++$+++ 44390 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Against licensees who are not claiming that the patent is invalid? And where is the controversy?
05-608 +++$+++ 44391 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The controversy could arise in any number of ways.
05-608 +++$+++ 44392 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, I can see, if the -- if licensee says the patent is invalid, that the patentee says paying its royalties -- how does it --
05-608 +++$+++ 44393 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The patentee could be paying his royalties. The patentee could also be putting ads in the paper saying, "This is not a valid patent." It could -- it could have acquired a lot of publicity. And, in the end, there could be reasons, and there have been such cases -- which we cited, 47 of, our brief -- where such suits have been brought. But --
05-608 +++$+++ 44394 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If it -- if the -- if the -- if the licensee came into court and said, "I'm not contesting this patent," that would be the end of it, wouldn't it?
05-608 +++$+++ 44395 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the licensee said, "I am not contesting that patent," that could be.
05-608 +++$+++ 44396 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, but the patentee would just say, "Look, we have a license. I think the patent's valid, and you owe me a dollar a unit." The licensee said, "Well, I don't think they're -- it's valid, so I owe you nothing." And they settle on a license for 50 cents. Why can't the patentee say, "You know, if I get a judicial decision establishing that the patent is valid, I can charge a higher license, either when this agreement expires or for other licenses"?
05-608 +++$+++ 44397 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- I agree with that, Mr. Chief Justice. But the practicality is that a patentee starts out with, essentially, a judgment that the patent is valid. There is a presumption of validity. And to challenge that patent -- that presumption of validity, is a very difficult undertaking. Most of them don't bother. Why would they? If they are receiving -- if they're receiving --
05-608 +++$+++ 44398 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm trying to see how far you want -- are willing to push your argument that just because there's been an agreement, or perhaps even a settlement, that that somehow or another doesn't moot the controversy, the underlying legal dispute. And it -- I gather your answer to me is that Genentech, or a patentee, can sue, even though they have an existing -- they're getting royalties from the licensee, they can still sue the licensee.
05-608 +++$+++ 44399 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ A settlement does not deprive a Federal Court of subject-matter jurisdiction. That's the narrow point that is before this -- before this Court.
05-608 +++$+++ 44400 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why aren't you -- you said, "The only question before the court is jurisdictional." If that's so, why isn't your position that the Federal Circuit put the wrong label on this, that license is listed in 8(c) as an affirmative defense; so, whatever the outcome should be, the wrong label should -- is -- was used. It shouldn't be a subject-matter jurisdiction, shouldn't be 12(b)(1); it should be an 8(c) affirmative defense. And then the -- you're out of the jurisdiction box, but you're left with the same underlying question.
05-608 +++$+++ 44401 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But not the same underlying question, Justice Ginsburg, with respect, because then you are in a situation like the business forms case in the Seventh Circuit, which came out shortly after the Lear. There was a settle -- settlement, and the -- and it was argued that the settlement was not effective because of the Lear decision, and parties can't settle themselves out of the Lear decision. But that is all under 12(b)(6), and not 12(b)(1). This case involves a 12(b)(1) motion, not a 12(b)(6) --
05-608 +++$+++ 44402 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what --
05-608 +++$+++ 44403 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- motion.
05-608 +++$+++ 44404 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- good would it do? Suppose we said, "Federal Circuit, you put the wrong label on it. It should be 12(b)(6), not 12(b)(1), or perhaps even 8(c), affirmative defense"? Then you go back to the Federal Circuit, and they'll come up with the same decision, that, as long as you are licensed and are paying your royalties, you have -- and they just put a different label on it -- you have --
05-608 +++$+++ 44405 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They --
05-608 +++$+++ 44406 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- you have no -- you have not stated a claim.
05-608 +++$+++ 44407 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be effectively overruling Lear, which is what, I think, is what many of the parties in this case actually seek to do. Lear does not allow inhibitions of challenges to patent licenses. A licensee can challenge the validity, the enforceability of the patent. That's because there's a public interest in this, as well. Parties cannot simply contract with each other and prevent a challenge to a -- to a patent --
05-608 +++$+++ 44408 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But then --
05-608 +++$+++ 44409 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- license.
05-608 +++$+++ 44410 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- the Federal Circuit distinguished Lear, and said what -- in Lear, the licensee had stopped paying royalties. Isn't that so?
05-608 +++$+++ 44411 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- those were the facts of Lear. But -- it happened that way in Lear, but that wasn't the reasoning of Lear. Lear would not totally cover that situation, but we would submit to this Court, it shouldn't make any difference. The reasoning of Lear is the same. The licensee cannot, by contract, be estopped, licensee estoppel, from challenging a patent.
05-608 +++$+++ 44412 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, there's no way, I -- under your view, that a patent holder can protect itself from suit through any license arrangement or any agreement of any kind.
05-608 +++$+++ 44413 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I suspect there are many ways, Mr. Chief Justice, but not by throwing them out on a jurisdictional basis at the very first moment of the lawsuit.
05-608 +++$+++ 44414 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How about --
05-608 +++$+++ 44415 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There may be ways this could be arranged at the second level, through --
05-608 +++$+++ 44416 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what are those ways -- I mean, the ones that have been mentioned as possibilities in the Government brief -- one, you rejected, and the other that was mentioned was: if you sue -- if the licensee sues, then the royalty fees will be upped. Would that be effective?
05-608 +++$+++ 44417 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is a question that would arise under Lear against Adkins. And the question before this Court in that situation, if it got to this Court, would be, Is that kind of a provision compatible with the policy that was so firmly expressed by Justice Harlan in Lear, and has been reiterated in so many subsequent cases of this Court?
05-608 +++$+++ 44418 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, you have rejected both of the Government's suggestions on what the patent holder might do to protect itself. Do you have anything concrete that you would concede the patent holder could do?
05-608 +++$+++ 44419 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that I have rejected both the Government's suggestions. I've said that they raise problems on -- as to the scope of Lear.
05-608 +++$+++ 44420 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ With respect to -- whether we are talking about a jurisdictional defense or whether we are talking about an affirmative defense, assuming jurisdiction, is there any -- is there any reason for us to accept your position, other than the reason that you have mentioned a number of times, and that is the adoption and encouragement of a public policy that allows patent challenges freely? Is that the nub of our reasoning, if we were to support your position, either jurisdictionally, in this case, or in recognizing -- or the -- in dealing with the affirmative defense in another case?
05-608 +++$+++ 44421 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not quite, Justice Souter. I would say the nub of your position is the Altvater case, the Aetna case, the Maryland --
05-608 +++$+++ 44422 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, Altvater is difficult for you, isn't it? Because there was an injunction in Altvater, wasn't there?
05-608 +++$+++ 44423 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- but that -- but was --
05-608 +++$+++ 44424 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which raises an entirely different policy issue?
05-608 +++$+++ 44425 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would say what it -- what it raises is simply an extra fact, but it wasn't a necessary fact. Because this Court, in Altvater, specifically pointed out that even if there weren't an injunction there, there would be -- there would be the danger forced on the licensee, of an infringement suit; and an infringement suit means, possibly, an injunction of the patent, treble damages, any number of sanctions. An injunction suit can put a company out of business, especially like a company like my client here. And --
05-608 +++$+++ 44426 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that is -- that is a good reason. And, I take it, it's your logic that that is a good reason to recognize a fairly broad right on the part of the licensee to challenge.
05-608 +++$+++ 44427 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-608 +++$+++ 44428 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In other words, the nub of your position, as I understand it, is the public policy that favors relative --
05-608 +++$+++ 44429 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It --
05-608 +++$+++ 44430 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- freedom to challenge --
05-608 +++$+++ 44431 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's more -- it's more than public policy, it's Article III. Article III says that you can bring a lawsuit in this situation. And that was settled --
05-608 +++$+++ 44432 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No --
05-608 +++$+++ 44433 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in Aetna.
05-608 +++$+++ 44434 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, I realize that. But, I mean, what we've got in this case, and in any of these cases, is a question of line-drawing under Article III. And your argument is, you want to draw the line where you want it drawn primarily because there are practical reasons to favor a public policy of free challenge.
05-608 +++$+++ 44435 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What we are presenting in this case is a dispute about money. It's not abstract. It's not hypothetical. It's not conjectural. It is concrete, immediate. All the facts are in. It's definitely adversarial. It's legal.
05-608 +++$+++ 44436 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You -- well, you can have such a dispute on a theoretical question between, I don't know, the ACLU and the National Rifle Association, but that doesn't create a case or controversy. What is the injury, the imminent injury to your -- to your client that is the basis for the case or controversy?
05-608 +++$+++ 44437 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
05-608 +++$+++ 44438 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it anything other than, "I have to pay the royalties that I agreed to pay."?
05-608 +++$+++ 44439 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is the -- it is that, "I am having to pay the royalties -- that I say I did not agree to pay, because this is an invalid patent." Money is being paid by my client every quarter, large amounts of money. That is a major injury.
05-608 +++$+++ 44440 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if you don't --
05-608 +++$+++ 44441 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And if --
05-608 +++$+++ 44442 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- think --
05-608 +++$+++ 44443 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And if --
05-608 +++$+++ 44444 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- if you don't think --
05-608 +++$+++ 44445 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it -- is it unlawful to agree to pay somebody money who does not have a patent?
05-608 +++$+++ 44446 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is --
05-608 +++$+++ 44447 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, you're speaking as though somehow that -- such a contract is contrary to public policy, and void.
05-608 +++$+++ 44448 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, we're saying that that isn't what we agreed to. We're saying this is a contract dispute. And the whole purpose of the --
05-608 +++$+++ 44449 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, then why are you paying it, if you -- if you don't think you owe it?
05-608 +++$+++ 44450 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the --
05-608 +++$+++ 44451 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because of the threat of treble damages --
05-608 +++$+++ 44452 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The threat --
05-608 +++$+++ 44453 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- and injunction.
05-608 +++$+++ 44454 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of this --
05-608 +++$+++ 44455 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If we're trying to figure out where the public policy is here, why don't we give some weight to those congressional enactments that obviously fortify the strength of the patent? In other words, Congress passed these provisions providing for treble damages for attorneys' fees. And --
05-608 +++$+++ 44456 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But --
05-608 +++$+++ 44457 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- and to respond that there's got to be a public policy to counterbalance that, Congress can always do that, if it wants; but it didn't -- it thinks that you need these provisions to protect the patent holders.
05-608 +++$+++ 44458 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Mr. Chief Justice, Congress can also amend the Declaratory Judgment Act, if it wants. And Congress was proud of the Declaratory Judgment Act when it was passed in 1934. And the legislative history of it -- and nothing in the text is contrary, says the purpose of this is so that contracts can be resolved without breach, and judicial determinations can be had. It's like a noninvasive, a less invasive kind of surgery.
05-608 +++$+++ 44459 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Kester, may I ask you this question? Is it your view that Gen-Probe represented a change in the law?
05-608 +++$+++ 44460 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
05-608 +++$+++ 44461 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Were there -- before Gen-Probe was decided, were there any cases, like this case, that were decided?
05-608 +++$+++ 44462 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There were many, Your Honor, and they were decided --
05-608 +++$+++ 44463 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where the -- where the licensee brought suit challenging validity while the license was still in full --
05-608 +++$+++ 44464 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We --
05-608 +++$+++ 44465 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- force?
05-608 +++$+++ 44466 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We had suits in the Third Circuit, the Seventh Circuit, the Second Circuit, and even in the Federal Circuit, in its early days, where it quoted those cases which said, "It is not necessary for the licensee to stop paying payments in order for Article III to be satisfied." This case came as a shock in 2004. And, in fact, the judges below, in this series of cases, all said, "We thought it was settled law the other way." All this case represents, from our point of view, is, "Let's go back to the way it has always been." I'd like to reserve the balance of my time.
05-608 +++$+++ 44467 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Kester. Ms. Maynard.
05-608 +++$+++ 44469 +++$+++ FALSE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: There is a concrete dispute between the parties about their legal rights and obligations. If that dispute is resolved, money will change hands. That is an Article III case or controversy.
05-608 +++$+++ 44470 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How do you ever end these things? Let's say they have this dispute, they bring the litigation, and they settle it. They're saying, "Okay, we're going to settle it. Instead of paying a license fee of 50 cents, it's going to be 40 cents, and we'll go on." Then they can sue again, I take it.
05-608 +++$+++ 44471 +++$+++ TRUE +++$+++ MS. MAYNARD: +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In that situation. Recognizing that's not the situation we have here --
05-608 +++$+++ 44472 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can they settle that, by the way? Is it all right to settle it, or is -- that interfere with the policy that patents have to be open to challenge?
05-608 +++$+++ 44473 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ May I -- if I can answer the first question first.
05-608 +++$+++ 44474 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Either one.
05-608 +++$+++ 44475 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If there were to be a settlement, in the second case, the -- it would not be an Article III case or controversy problem with the second case. And that suit should not be dismissed under 12(b)(1).
05-608 +++$+++ 44476 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
05-608 +++$+++ 44477 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- in that case, the patent holder might have a valid 12(b)(6) defense, and the suit, laying aside enforceability issues that you raised, may be easily resolved, on that ground. But, in terms of the question before the Court today, that wouldn't be an Article III matter. I think, as a policy matter -- so, moving off the question before the Court right now -- as a policy matter, the -- it's not clear from this Court's cases exactly what types of agreements would be enforceable. I think there's a spectrum of cases one can imagine, ranging from Pope -- the type of promise that was extracted in Pope, which this Court held was unenforceable --
05-608 +++$+++ 44478 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I think you overread Pope. All Pope said was that they're not going to grant specific performance. In fact, they've said, "Whatever you may think of the policy here, we don't -- specific performance calls on the equitable discretion, and we're not going to do it." But, I don't read Pope as holding that the clauses are otherwise unenforceable. In --
05-608 +++$+++ 44479 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-608 +++$+++ 44480 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- other words you're maybe entitled to damages. And that may be measured by the license fee that you agreed to pay.
05-608 +++$+++ 44481 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there certainly would be a question, though, the way that Lear read Pope, and under Lear, about whether a bare agreement not to challenge licenses, especially ones like in Pope, where they agreed not to challenge the license, even beyond the term, would be enforceable. And the Government thinks there's a spectrum. One -- at one end of the spectrum would be licenses like those in Pope, and at the other end of the spectrum would be a consent decree entered after settlement of a bona fide patent infringement suit where the -- which included an agreement not to settle. Now, that's clearly not what we have here.
05-608 +++$+++ 44482 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, is -- if -- I guess there are three possible positions on the question of whether a licensee can attack a contract, a patent where he has a license and wants to keep the contract. One, he can never do it. Two, he can always do it. Three, it depends on what the contract says. Now, do any of those questions have anything to do with the question before us, which is whether it is a case or controversy?
05-608 +++$+++ 44483 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
05-608 +++$+++ 44484 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. If we were to reach the question, which is very interesting, "What is the Government's position as to which of those three positions is the right position?" -- were we to reach it -- I agree with you, I don't see it in front of us; but maybe it is -- if it were, what would be your view?
05-608 +++$+++ 44485 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Government's view is that there's a spectrum along the spectrum, and it would have -- you would have to consider each case on its terms. And it's not clear, from this Court's cases, where the policies in that --
05-608 +++$+++ 44486 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. So, basically, though, you're not certain. The Government's view would be, it is a matter as to whether you can sue claiming the patent is invalid, whether the licensee can do it, that probably -- but you're not certain, and you haven't made up your mind definitely, because it is not in this case -- but you think it's going to be something they could regulate themselves by contract.
05-608 +++$+++ 44487 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's certainly not foreclosed by this Court's precedent, and it's an open question where the policies -- how they would weigh out. There's no language in this license, however, suggesting any type of settlement. And, moreover, I think it's important to recognize that the parties here actually have a concrete dispute about what the licensing agreement means. Count one in the complaint is asking for a declaration --
05-608 +++$+++ 44488 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you don't think that matters, though, do you? I mean, even if they all agree there's no dispute about what the license agreement means, your position is still the same, right? There is an Article III controversy because they challenge the validity of the patent?
05-608 +++$+++ 44489 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the parties have a concrete dispute about the validity of the patent, and it would affect their rights and obligations in the way that it would here -- in other words, that money will no longer be due to the Respondents if the patent's invalid --
05-608 +++$+++ 44490 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is --
05-608 +++$+++ 44491 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- and the --
05-608 +++$+++ 44492 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that always the case? I mean, could -- can you enforce a license agreement based on an invalid patent? You thought it was valid -- parties had a dispute about it -- whether it is valid. You entered into agreement, say, "Well, let's split the difference. We'll -- you know, 50 cents rather than a dollar or nothing." It's determined that the patent is invalid. Can the patentee then still say, "Well, you still owe me the money. We've, kind of, cut -- split the difference. That was part of the agreement"?
05-608 +++$+++ 44493 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It might depend on whether there was consideration beyond the patent itself. In the -- in this -- in this case, though, the Petitioner claims that if the -- if the patent is invalid, they no longer owe licensing fees, and, under Lear, they would be entitled to the licensing fees, that they've paid since they began challenging, back. So, it's clear that under either the contract or a question of --
05-608 +++$+++ 44494 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Contractually? They say that that's their contractual right?
05-608 +++$+++ 44495 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They claim that, under the licensing agreement, they only owe royalties on valid claims. That's count one of the complaint, in the (j) --
05-608 +++$+++ 44496 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where does that appear in the licensing agreement? Or --
05-608 +++$+++ 44497 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Where does it appear in the licensing agreement?
05-608 +++$+++ 44498 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, I took them as just asserting a general proposition of law -- that, where they've agreed to pay royalties because of a patent, if the patent is invalid, they don't have to pay royalties -- not because there's some special provision in this contract.
05-608 +++$+++ 44499 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The parties actually have a concrete dispute about the meaning of the licensing agreement in that regard, Justice Scalia. On page 399 of the joint appendix is the provision about which they have a dispute. And the language in there provides that they will pay on substances which would, if not licensed under this agreement, infringe one or more claims of either or both of the Shamir patents, or coexpression patents, which have neither expired nor been held invalid by a court or other body of competent jurisdiction. There was similar language in --
05-608 +++$+++ 44500 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So, there's really not much at issue in this case. And that's clearly a case of controversy, isn't it? There is a dispute over the meaning of that provision of the agreement.
05-608 +++$+++ 44501 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-608 +++$+++ 44502 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Gee, there's less here than meets the eye.
05-608 +++$+++ 44503 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's what the Government believes, Your Honor. It's also -- the licensee also does not need to breach the licensing agreement in order to create a case or controversy. The licensee is currently paying royalties that it does not believe it owes and that it believes it would be entitled to have back if it should prevail on its interpretation of the -- of the patent and the licensing agreement. It doesn't have to make that injury more severe by breaching. That's clear from this Court's decision in Altvater. In Altvater, royalties were being demanded and royalties were being paid, but, nevertheless, this Court held --
05-608 +++$+++ 44504 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but that -- it's been pointed out that was pursuant to an injunction.
05-608 +++$+++ 44505 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it was pursuant to injunction, but that was not important to the Court's reasoning. What the Court said is, "You need not suffer patent damages in order to bring the suit." Not a contempt. "You need not breach the injunction and put yourself at risk of treble damages for infringement." It was the patent damages that put the licensee at risk, and that's the same risk that the Petitioner faces here and should not have to bear in order to bring suit. The case or controversy is whether or not the -- they owe the royalties. The whole point of the Declaratory Judgment Act was to allow contracting parties not to have to sever their ongoing contractual relations in order to get disputes resolved between --
05-608 +++$+++ 44506 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you think --
05-608 +++$+++ 44507 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- themselves.
05-608 +++$+++ 44508 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you think there would be a case or controversy if Genentech were suing to establish the validity of its patent?
05-608 +++$+++ 44509 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the situation that we have here, Your Honor?
05-608 +++$+++ 44510 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
05-608 +++$+++ 44511 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I do. Where the Petitioner claims that the patent is invalid, that they could -- that the Petitioner's claims unsettles their right, damages their property value, potentially, and that they could bring a declaratory judgment action of validity.
05-608 +++$+++ 44512 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what would their -- what would their concrete injury be? What is the threatened imminent injury that they would assert in that -- in that action?
05-608 +++$+++ 44513 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, right now --
05-608 +++$+++ 44514 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You have a licensee who's paying the license fees. What is their concrete injury?
05-608 +++$+++ 44515 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- from the moment -- the Petitioner has an argument that from the moment it ceased -- it starts claiming that the patent is invalid and pays under protest, that it is entitled to those royalties back.
05-608 +++$+++ 44516 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But --
05-608 +++$+++ 44517 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The --
05-608 +++$+++ 44518 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- so long as they're still paying the royalties, isn't that sort of an abstract disagreement? I mean, it's sort of like the ACLU saying that the patent's invalid. You know, it's a nice theoretical question that we can argue about, but as long as they're paying the royalties, where's the concrete injury?
05-608 +++$+++ 44519 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think, technically, Justice Scalia, they probably have a claim for patent infringement, to which the defense, as Justice Ginsburg --
05-608 +++$+++ 44520 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I --
05-608 +++$+++ 44521 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- points out --
05-608 +++$+++ 44522 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I find it --
05-608 +++$+++ 44523 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- would be an easy defense.
05-608 +++$+++ 44524 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I --
05-608 +++$+++ 44525 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So, there's not an Article III lack of case or controversy, which is --
05-608 +++$+++ 44526 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I find it --
05-608 +++$+++ 44527 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- what's the question before --
05-608 +++$+++ 44528 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- very difficult --
05-608 +++$+++ 44529 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the Court.
05-608 +++$+++ 44530 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- to see how there would be a proper declaratory judgment action brought by the patentee here. It's just not the kind of a situation where you can have a mirror-image suit. I don't see what the --
05-608 +++$+++ 44531 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you need --
05-608 +++$+++ 44532 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- patentee --
05-608 +++$+++ 44533 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You -- may I answer that question? You need not have a mirror-image suit, in that sense, Justice Scalia. And Altvater makes that clear. In Altvater, the patentee's claim was --
05-608 +++$+++ 44534 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's fine.
05-608 +++$+++ 44535 +++$+++ TRUE +++$+++ MS. MAYNARD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- much narrower than the counterclaim; and, nevertheless, the Court allowed that counterclaim to proceed.
05-608 +++$+++ 44536 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. Ms. Mahoney.
05-608 +++$+++ 44538 +++$+++ FALSE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: I'd like to start with the fact that there are four counts in the complaint for declaratory relief. The first one is styled as a -- contractual relations claims. The other three are styled as patent law claims. And it's important to emphasize, at the outset, that this Court, in Skelly Oil, in Calderone, and in, really, all of the cases, has said it's very important to look behind the labels that a Declaratory Judgment Act plaintiff puts on their claims. We need to actually see what is the cause of action they're trying to adjudicate so we can do an accurate assessment of justiciability -- standing, ripeness, Federal-question jurisdiction. I want to start by explaining why there is no contract claim at issue here. You heard today, they're trying to salvage this, say that there's a contract dispute, a dispute about the terms of the contract. They didn't argue that below, and with good reason. And I'd just point you to the briefs in the Federal Circuit. Roman numeral I, which is all about the improper dismissal of the Declaratory Judgment Act claims, refers to the fact these are, quote, "patent-law claims," end quote, at page 27. Nowhere do they say that there is a dispute about the proper interpretation of the contract terms. And let me explain why. The contract terms, which were just read to you, is Section 110 of -- 1.10 at JA-399 of the license -- says that there is an obligation to pay royalties for Synagis on any claim -- not any valid claim, any claim -- that has not been held invalid by a court or other competent jurisdiction from which no appeal has, or may, be taken. Now, they never said, below, "That clause means that we can come to court and have the court decide whether this patent is valid, and, depending on whether we win or not, then we can stop paying." And the reason they didn't make that argument is, it was rejected by this Court a hundred years ago, in United States versus Harvey Steel. Very similar clause. The United States says, "This means that we don't have to pay if the patent is invalid." And, in an opinion by Justice Holmes, this Court rejected it out of hand by -- and said, "This was a conventional proviso. We don't even need to look to evidence of the party's intent, because this is the standard proviso. It does not mean" -- and they said it was a "twisted interpretation" that the Government was offering -- it doesn't mean that the licensee, quote, "thought the patent bad and would like to have the Court say so now," end quote. Yet that is exactly --
05-608 +++$+++ 44539 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was that a case about Article III case or controversy?
05-608 +++$+++ 44540 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is, in the following sense, Your Honor. They can't just show up here today and say, "Well, there really is a dispute about the contract." But they never argued, below, and is foreclosed --
05-608 +++$+++ 44541 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Shouldn't we send that back? I mean, I thought we were here to decide one question, that the Federal Circuit has said that, "Unless there is a reasonable apprehension of a lawsuit, you can't bring a declaratory judgment action, because of the Constitution of the United States." Now, I have to admit, I've looked up, or I've had my law clerk look up, probably now hundreds of cases, and we can't find, in any case, such a requirement. Indeed, the very purpose -- as I -- we've just heard the SG say, of this act, the Declaratory Judgment Act, seems to be to allow people who -- a contract -- who are in a real concrete disagreement, to get a declaratory judgment without getting rid of the contract. But I might be wrong about that. But you've now argued a different point.
05-608 +++$+++ 44542 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-608 +++$+++ 44543 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, isn't the right thing for us to do, to decide the issue in front of us and then send it back? If you're right that they have to pay, whether they win or lose; if they're right that they promise not to sue; if you're right on 14 other grounds, you might win. But should we decide those grounds today? Why?
05-608 +++$+++ 44544 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, first of all, with respect to this issue, whether there would be jurisdiction over a real live contract dispute, they never argued it, Your Honor. It's not part of this case. The Federal Circuit didn't address it, because they didn't argue it, because it's foreclosed by --
05-608 +++$+++ 44545 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the question --
05-608 +++$+++ 44546 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- a precedent a hundred --
05-608 +++$+++ 44547 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The question that is presented to us -- whatever they suggested at this oral argument that wasn't in III, the question it presented to us is, Was the Federal Circuit right when they said, "You have no access to a declaratory judgment unless there is a reasonable apprehension that you will be sued"?
05-608 +++$+++ 44548 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that is the right -- that is the right starting point for a test, depending on the cause of action they're seeking to adjudicate. In here, what the Federal Circuit properly understood is that they are seeking to adjudicate affirmative defenses to an infringement action under the patent laws. And, just like in Steffel, if you're trying to adjudicate, on an anticipatory basis, an enforcement action, you have to show that you would reasonably fear that enforcement action. And, in fact, Steffel uses that language, and Poe versus Ullman dismisses a case for failure to establish a genuine fear of prosecution. But then, you have to go one step beyond, and that is to say, Are they -- is the cause of action not ripening because the declaratory judgment plaintiff is forfeiting their legal rights in order to avoid some very severe harm that would be cognizable coercion? That's the test that's used in Steffel for -- in essence, being able to test a -- defenses to a cause of action that --
05-608 +++$+++ 44549 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And why --
05-608 +++$+++ 44550 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- an enforcement action.
05-608 +++$+++ 44551 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- doesn't that work here?
05-608 +++$+++ 44552 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It doesn't work here, for several reasons. Most fundamentally, this is a settlement. I mean, Mr. Steffel did not enter into a settlement or a compromise with the prosecutor. He wasn't complying because he was under an agreement to do so. Here, it has been settled for -- forever, that if a -- an agreement -- if you're making payments pursuant to an agreement, in the nature of a compromise, you can't come and say that it's been coerced or it's a form of duress.
05-608 +++$+++ 44553 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is the --
05-608 +++$+++ 44554 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why should we accept the characterization that it's a compromise? As I -- and maybe I'm just factually wrong here? I thought, at the time they entered into the license agreement, they had some disagreements about the scope of the then-patent, the scope of the anticipated patent, and so on, and they couldn't very well be resolved. But they were -- they were not settling, in the -- in the classic sense of the word, a -- let us say, a focus claim, one against the other.
05-608 +++$+++ 44555 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the answer, Your Honor, is, they weren't settling, for all time, in the sense that they could never get out of the deal. Certainly, they could repudiate and then go ahead and sue. But yet, at page 3 of their petition, they expressly say, the reason they entered into this agreement was in order to avoid the costs and risks of litigation. It is the reason --
05-608 +++$+++ 44556 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But had they gotten to the point, prior to the execution of the contract, in which one party was saying, "You may not do this," and the other party was saying, "Oh, yes I can," so that there -- there was a focus controversy that would have been the subject matter of a conventional lawsuit, then and there, had there not been this license agreement?
05-608 +++$+++ 44557 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not exactly, but what they did was they headed it off at the pass. They understood that --
05-608 +++$+++ 44558 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the question is, How far ahead of the pass can they get and still call it a settlement?" in the sense that you're using that term.
05-608 +++$+++ 44559 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's a compromise. It's a compromise of the very claims they're trying to adjudicate here. What they want to adjudicate are affirmative defenses to a patent infringement action. That is not a ripe claim, and there is not sufficient immediacy, because they are preventing that claim from ripening by continuing to make voluntary payments --
05-608 +++$+++ 44560 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But --
05-608 +++$+++ 44561 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- under their --
05-608 +++$+++ 44562 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you --
05-608 +++$+++ 44563 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- agreement.
05-608 +++$+++ 44564 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right. But you were saying that the status of that agreement, for purposes of the jurisdictional question here, is exactly the same as the status of an agreement that they might have entered into after one party had brought suit against the other. And --
05-608 +++$+++ 44565 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-608 +++$+++ 44566 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And they -- they had settled. And then, later on, somebody wanted to repudiate the settlement.
05-608 +++$+++ 44567 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know if it's exactly the status. For instance, in a settlement after litigation has been filed, I think that Lear would say that you can't even repudiate that. But certainly -- so, there might be some differences -- but from --
05-608 +++$+++ 44568 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In any event --
05-608 +++$+++ 44569 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the standpoint of coercion --
05-608 +++$+++ 44570 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- it's equivalent to a settlement after a formal demand has been made.
05-608 +++$+++ 44571 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is equivalent to that, in the following sense. They understood that if they -- if they didn't get a license, that they would be exposed to Genentech's claims under the -- under the infringement laws. And in order to avoid that exposure, even though they had all the information they needed to assess the validity of this patent at the time --
05-608 +++$+++ 44572 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose they didn't have all the information. Suppose you enter into a license agreement -- you're convinced, as the one that's going to pay the license fee, that it's a good patent -- after the agreement's signed, the technological advances, other disclosures, indicate that the patent is deficient. Could you sue then?
05-608 +++$+++ 44573 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't think so, unless --
05-608 +++$+++ 44574 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but then -- so then, the argument that you've made is just not --
05-608 +++$+++ 44575 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I --
05-608 +++$+++ 44576 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- relevant for us, the fact that they knew everything --
05-608 +++$+++ 44577 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They did.
05-608 +++$+++ 44578 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it also means that this isn't really a settlement, in any respect.
05-608 +++$+++ 44579 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's a compromise of claims that could be brought.
05-608 +++$+++ 44580 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Mahoney, can I ask this question? Supposing at the time they negotiate the license agreement there's some uncertainty about whether the patent is valid or not. So, at the end of the license agreement -- they agree on the royalties, the term, and the -- everything it covers, but they put in a provision and say, "We're not entirely sure the patent is valid, so we reserve the right to bring an action challenging the validity of the patent. We will pay royalties in the meantime, and the -- you will accept these royalties as sufficient for the use of the patent, that, if we win, you don't have to pay royals, if we lose, you do." Would that be a valid provision?
05-608 +++$+++ 44581 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so, but that would certainly be a closer case if there --
05-608 +++$+++ 44582 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But would it --
05-608 +++$+++ 44583 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I --
05-608 +++$+++ 44584 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- not be precisely the same issue as a jurisdictional matter as to whether there's a case or controversy?
05-608 +++$+++ 44585 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't think so, because the real issue, in terms of Steffel, is whether you can say that the party is being coerced. And, at least in your hypothetical, you could say that they have --
05-608 +++$+++ 44586 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He's not being coerced, but he's bargaining a little better royalty rate than he'll -- otherwise would have to pay.
05-608 +++$+++ 44587 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in terms of whether they're -- if the parties expressly agreed that that was part of their deal, then you at least wouldn't say that there was an issue of coercion. But here, that isn't what happened. Instead, they used --
05-608 +++$+++ 44588 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I'm really asking --
05-608 +++$+++ 44589 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- a standard proviso --
05-608 +++$+++ 44590 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- whether the parties could agree to create a case or controversy.
05-608 +++$+++ 44591 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think probably not, Your Honor. I think --
05-608 +++$+++ 44592 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's suppose --
05-608 +++$+++ 44593 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that that's one of the --
05-608 +++$+++ 44594 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well --
05-608 +++$+++ 44595 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- one of the problems --
05-608 +++$+++ 44596 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Will you assume Justice Stevens' hypothetical? Assume it, take it as given. They did put that in. I know you think they didn't, but I want to assume it.
05-608 +++$+++ 44597 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Uh-huh.
05-608 +++$+++ 44598 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, I'd like to also assume --
05-608 +++$+++ 44599 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could I have a review of the bidding? What -- [Laughter.]
05-608 +++$+++ 44600 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Go back -- what is the hypothetical --
05-608 +++$+++ 44601 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The hypothetical is --
05-608 +++$+++ 44602 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Continue on.
05-608 +++$+++ 44603 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that they write into the contract -- the party who's the licensee says, "And we stipulate that the licensee thinks that the patent is invalid." Nonetheless, the licensee wants a license, for business reasons. Therefore, the licensee and the licensor agrees that, after they sign the contract and he's paying a thousand dollars a month in royalties, he can go into court and challenge the patent." So, we assume that's written into the contract.
05-608 +++$+++ 44604 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Uh-huh.
05-608 +++$+++ 44605 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And now, let us also assume a state of the law. The state of the law is that there is no public policy or any other policy that forbids such a condition in a contract. All right? Now, on those two assumptions, the next thing that happens is that the licensee asks for a declaratory judgment that the patent is invalid. On those assumptions, is there a case or controversy under the Federal Constitution? If not, why not?
05-608 +++$+++ 44606 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so, because I think what they're really asking for is advice about a business deal under those circumstances.
05-608 +++$+++ 44607 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But he says, by the way, "If I win, I will, in fact, save $42 billion a year in licenses" --
05-608 +++$+++ 44608 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-608 +++$+++ 44609 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "I would other have to pay." And the other side will -- or -- I was a thousand dollars, I meant 42 billion, okay? [Laughter.]
05-608 +++$+++ 44610 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- you know, but now -- but now, can they come even before they sign the deal? In other words, what's --
05-608 +++$+++ 44611 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. Now, that's --
05-608 +++$+++ 44612 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the line?
05-608 +++$+++ 44613 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not asking --
05-608 +++$+++ 44614 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In other words --
05-608 +++$+++ 44615 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- your hypothetical.
05-608 +++$+++ 44616 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I -- no. Oh, no, I'm just saying --
05-608 +++$+++ 44617 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm asking --
05-608 +++$+++ 44618 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I think that --
05-608 +++$+++ 44619 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- my hypothetical. [Laughter.]
05-608 +++$+++ 44620 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the problem -- I think the problem is, it -- is, it leads notion that parties can simply, sort of, set up a -- even if there's not true adversity, and come to court for answers to legal questions. And that has --
05-608 +++$+++ 44621 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, isn't there --
05-608 +++$+++ 44622 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- is something --
05-608 +++$+++ 44623 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- true adversity? I thought the assumption underlying the -- everybody's hypothetical is that, if the patent is determined to be invalid, that the license -- then the license agreement is also invalid. Is that -- is that right?
05-608 +++$+++ 44624 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so. I don't think the license agreement itself is invalid. It simply --
05-608 +++$+++ 44625 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can you -- can you --
05-608 +++$+++ 44626 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- means --
05-608 +++$+++ 44627 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- can you collect -- can a patentee collect license fees based on an -- patent that has been determined to be invalid?
05-608 +++$+++ 44628 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not on that patent. Right. The license --
05-608 +++$+++ 44629 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It would --
05-608 +++$+++ 44630 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- made.
05-608 +++$+++ 44631 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It would be pursuant to the agreement.
05-608 +++$+++ 44632 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the patent has been -- under Lear and other cases, if a patent has been held to be invalid by a final decision of a court, then I think it is improper for a licensee to seek to obtain --
05-608 +++$+++ 44633 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Collective --
05-608 +++$+++ 44634 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- royalties --
05-608 +++$+++ 44635 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even if --
05-608 +++$+++ 44636 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- for that.
05-608 +++$+++ 44637 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- the royalty agreement says, you know, "We have a dispute about the validity of this patent. We don't know. We disagree. And so, we've entered into a compromise royalty rate that reflects the uncertainty." But once it's determined to be invalid, the license fees are not collectible.
05-608 +++$+++ 44638 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that that is correct, Your Honor, under the -- under the current state of the law.
05-608 +++$+++ 44639 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ One further -- on further wrinkle. What if the contract goes the further step and says, "Even if the patent were determined, in any action, to be invalid, there will still be a royalty payable, because that's what -- that's -- that is consideration for the fact that we are not going to start any controversy now." Let's assume they assume, precisely, the invalidity. Would you say the contract is unenforceable then, and the -- and the --
05-608 +++$+++ 44640 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-608 +++$+++ 44641 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and, for jurisdictional purposes, there would be no case or controversy then?
05-608 +++$+++ 44642 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That if, under the -- I'm sorry, to --
05-608 +++$+++ 44643 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The --
05-608 +++$+++ 44644 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The --
05-608 +++$+++ 44645 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Take the Chief Justice's hypothetical, add the following. There is a provision in there to the effect that if, during the term of this contract, the license is determined to be invalid, royalties will still be payable under this contract --
05-608 +++$+++ 44646 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Uh-huh.
05-608 +++$+++ 44647 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- because that is one of the contingencies, which is a consideration for our bargain. Would you say, in those circumstances, that your answer would be the same, that there's no -- there's no case or --
05-608 +++$+++ 44648 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't know what the dispute would be about, Your Honor, because it sounds like the contract terms would be clear. And if the contract terms are clear, they would simply go in accordance, unless they have an argument that the contract is --
05-608 +++$+++ 44649 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but I'm talking about jurisdictional purposes.
05-608 +++$+++ 44650 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- unenforceable. If the -- if the point is that it is actually invalid, illegal, that -- that may be a different case, although I think there would still be an estoppel argument, that they should not be permitted to bring that action without giving up the benefits of the bargain, which is the immunity from suit. I mean, that is one of the fundamental problems with this case.
05-608 +++$+++ 44651 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But do you see --
05-608 +++$+++ 44652 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought your argument -- I'm sorry.
05-608 +++$+++ 44653 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if -- do you see a difference between -- I guess you're saying there's no difference between my added wrinkle on the hypo and the Chief Justice's hypo, for jurisdictional purposes.
05-608 +++$+++ 44654 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that there's a difference, from a jurisdictional perspective --
05-608 +++$+++ 44655 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
05-608 +++$+++ 44656 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but I think, here, that the major problem, from a jurisdictional perspective, is that there is not anything in the language of the contract that gives them a right to come to court to dispute validity. Instead, we're --
05-608 +++$+++ 44657 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about the fact that it's under protest?
05-608 +++$+++ 44658 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That makes no difference, Your Honor. The fact is that they are making the payments pursuant to an agreement. They're not under compulsion of an injunction. They're doing it because they voluntarily entered into it. Altvater is completely different. There, there was no license agreement in force. The courts found that it -- that the reissue patents were never part of the agreement, to begin with. In other words, Altvater never agreed to pay royalties. Altvater had been sued, so there wasn't a counterclaim for invalidity.
05-608 +++$+++ 44659 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could the --
05-608 +++$+++ 44660 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
05-608 +++$+++ 44661 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- patent holder take the position that, "I -- Sooner or later, I'm going to have to fight out validity with someone, and might as well do it sooner rather than later, so I am not going to raise the license as a defense"? Would that be a "case or controversy"?
05-608 +++$+++ 44662 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that the patent holder is allowed to come to court and seek a declaration of validity. I don't think any court has ever allowed that.
05-608 +++$+++ 44663 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it -- it's -- no, the patent -- the licensee is coming into court and wants a declaration of invalidity so it can manufacture without the fear of an infringement suit.
05-608 +++$+++ 44664 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And they're under a license?
05-608 +++$+++ 44665 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-608 +++$+++ 44666 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-608 +++$+++ 44667 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the patent holder chooses not to plead the license -- chooses not to plead the license. Wouldn't the patent holder have that option?
05-608 +++$+++ 44668 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, the patent -- well, no. I mean, not necessarily. Their view is that, because of the terms of the agreement, that the patent holder has no choice but to -- because they're receiving the royalties, to simply --
05-608 +++$+++ 44669 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't mean their view. I mean, they start a lawsuit. They say, "We're -- we want" --
05-608 +++$+++ 44670 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that is -- that's what happened here.
05-608 +++$+++ 44671 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- "we want a declaration of infringement." And the patent holder doesn't take the position that you're taking; instead says, "I'm prepared to fight this out now. I know that I have the license, which could be an affirmative defense, but I'm not going to raise it. I'm going to go head to head on the validity of this patent." Would that be a case or controversy?
05-608 +++$+++ 44672 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so, Your Honor, because I don't think the parties are allowed to just decide, "Well, we'd like to do this now," when they're --
05-608 +++$+++ 44673 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, even --
05-608 +++$+++ 44674 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- they've treated --
05-608 +++$+++ 44675 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- even if the patent holder chooses not to raise the license, the court would have to, on its own motion, say, "Sorry, you didn't -- you're not the master of your defense. We decide that you have to effectively plead the license."
05-608 +++$+++ 44676 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the plaintiff has to show that they are here pursuant to -- that they have a legal right that permits them to adjudicate the issue of validity. What the -- what the patent owner does, or not, I don't think turns this into a case or controversy; that, instead, we have to start with the fundamental question, "What is the cause of action that they are attempting to adjudicate? Is it a contract action or is it a -- an action under the patent laws? Is it an infringement action?" Here, I don't think there's any question but that it is -- they're trying to adjudicate an action for an infringement that can't arise, because they're immune from suit, because they continue to make their payments. And, under those circumstances, it is not sufficiently immediate to establish jurisdiction in --
05-608 +++$+++ 44677 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It is --
05-608 +++$+++ 44678 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- this Court.
05-608 +++$+++ 44679 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- it is, under other fields of the law, isn't it? I mean, I imagine that the very -- we see, all the time, declaratory judgments where a State passes a law and the individual says, "Well, I think this is unconstitutional, but my preferences are not to go to jail; my preferences are not to be penalized. So, my first choice is unconstitutional and my second is to obey it." There's no possibility in the world that he will violate that law. And yet, we've often held that, with regulations, you have to have the other requirements. You have to have the requirements that it's concrete, it's not just ideological, there's real harm. But, if those other requirements that are fulfilled, I've never seen any where it said that there also has to be a reasonable apprehension of a lawsuit in the absence of the declaratory judgment. I've just never found that phrase, and I can't imagine why it would be part of the law.
05-608 +++$+++ 44680 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, Poe versus Ullman, this Court actually dismissed a declaratory judgment --
05-608 +++$+++ 44681 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, there are many dismissed, for the reasons that they aren't concrete, definite -- there are a lot of reasons why to dismiss it. I'm just wondering if there is an additional reason that there has to be a reasonable apprehension of a lawsuit in the absence of the declaratory judgment action. It's that phrase that I've never found anywhere --
05-608 +++$+++ 44682 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We --
05-608 +++$+++ 44683 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- and can't think of any reason why that would be an additional constitutional requirement. And I'm putting that directly to you, because I want to hear you give me the counterexamples.
05-608 +++$+++ 44684 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well -- but in Poe versus Ullman, it was a declaratory judgment action. They were seeking to have a statute declared unconstitutional. And this Court did dismiss, because they didn't have a reasonable fear that they would actually be prosecuted. Dismissed for lack of jurisdiction.
05-608 +++$+++ 44685 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you say there has never been a declaratory judgment action, except in the instance where, in the absence of the action, the person would have violated the law, if it's a Government law. In other words, if they're -- so, it's really not --
05-608 +++$+++ 44686 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Even --
05-608 +++$+++ 44687 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-608 +++$+++ 44688 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you could -- you could -- I'm not -- it is possible that that framework could be extended. I -- it has not been done to date, and it would be --
05-608 +++$+++ 44689 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ As I think as we --
05-608 +++$+++ 44690 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
05-608 +++$+++ 44691 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- both know --
05-608 +++$+++ 44692 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
05-608 +++$+++ 44693 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- in the Government area, it happens --
05-608 +++$+++ 44694 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It --
05-608 +++$+++ 44695 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- a lot.
05-608 +++$+++ 44696 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does.
05-608 +++$+++ 44697 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-608 +++$+++ 44698 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But there is always a reasonable apprehension, and there was always a finding of coercion. Poe versus Ullman says you can't do it unless there is --
05-608 +++$+++ 44699 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do I remember that --
05-608 +++$+++ 44700 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, Poe versus Ullman was a case in which, even if there was a violation of the law, there was going to be no prosecution.
05-608 +++$+++ 44701 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's why they didn't --
05-608 +++$+++ 44702 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He -- but, in this -- in this case, if there's a failure to -- of -- conform to the terms of the license agreement, there's going to be a lawsuit. So, I think Poe versus Ullman is just not relevant.
05-608 +++$+++ 44703 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- it goes to the next point, which is that there still has to be a coercive choice. You have to choose -- there, they're choosing to give up constitutional rights in order to avoid jail and imprisonment, arrest and prosecution. Here --
05-608 +++$+++ 44704 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but --
05-608 +++$+++ 44705 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- what's at issue --
05-608 +++$+++ 44706 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- but, in Poe versus Ullman, the ultimate action was basically like violating the contract here, and that's why it's not an applicable precedent.
05-608 +++$+++ 44707 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't -- I don't think it's like violating the contract here, though, Your Honor, because, What are the consequences here? What is the choice? First of all, they actually owe the royalties under the agreement, so they're trying to escape their bargain, not enforce it. That's number one. So, they're not forfeiting any rights under the contract, they're simply trying to get out of the contract. Number two, the consequences here, the choice they're talking about, isn't in the nature of coercion. Again, they're not being arrested or prosecuted. All they're going to do if they walk out of this agreement, if they stop paying royalties -- yes, they may well be sued for infringement -- but, if they do, all they face is the loss of their discount.
05-608 +++$+++ 44708 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But your argument seems --
05-608 +++$+++ 44709 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
05-608 +++$+++ 44710 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- to be based on their having implicitly given up their right to sue. Isn't that right? That was your main argument. This is a settlement. This is in the nature of the settlement. As part of the bargain, the patent holder promises not to sue for infringement.
05-608 +++$+++ 44711 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not based on them giving up their right to sue, in the sense that all they have to do is stop paying royalties, and they can sue. They have to --
05-608 +++$+++ 44712 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in answer to the hypotheticals, you seem to say it wouldn't matter if they explicitly did not give up their right to sue. So, what is left of this argument that what's involved here is essentially a settlement?
05-608 +++$+++ 44713 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it is in the nature of a compromise, Your Honor, and there's nothing in this agreement that gives them a right to sue. They have to find some legal right. What they're really saying -- what their argument has always been is that Lear actually creates an implied right of action for a licensee to sue at any time of their choosing. That's been their argument from the beginning.
05-608 +++$+++ 44714 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, their concrete right is, as I thought you conceded earlier, that if the patent is declared invalid, they will not owe license fees.
05-608 +++$+++ 44715 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true. But that's getting the cart before the horse. What this Court said in --
05-608 +++$+++ 44716 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's what --
05-608 +++$+++ 44717 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- U.S. v. Harvey Steel is --
05-608 +++$+++ 44718 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- a declaratory judgment action does, though, isn't it?
05-608 +++$+++ 44719 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think so, Your Honor. I think every single contract case in the lower courts where they have allowed a suit to be brought on a contract prior to breach, there was a genuine dispute about the interpretation of the terms. Here, what they're trying to do is adjudicate a cause of action outside of the contract. They're trying to adjudicate an infringement action and then say, "Aha, see what I have? I have a judgment that the patent's invalid. And so, now I'd like to say that I don't have to pay royalties under my contract."
05-608 +++$+++ 44720 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Mahoney, the patent bar is sort of specialized -- more than "sort of" -- it's a specialized bar, and I've never -- I've never been a part of it. Do you agree with the statement of the Petitioner's counsel that Gen-Probe came as a -- as a shock to the --
05-608 +++$+++ 44721 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As a -- I do not agree that it came as a shock. And, in fact, I think that Warner Jenkinson, which is a Second Circuit case that allowed this kind of action back in the '70s, was one of the only cases ever that allowed it. And other reasons were found to dismiss similar kinds of claims. In Gen-Probe, it was a surprise that a licensee could do this. It -- the law -- by the time that this license was executed in the Federal Circuit, there was a case, called Shell Oil, where the Court specifically held that a licensee cannot take advantage of the protections of Lear until it has repudiated the license, stopped paying, and said that it wants to challenge validity. So that was the background rule that was in force at the time of this license. And then, when you couple that with the fact that --
05-608 +++$+++ 44722 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that wasn't -- the District Court, in this very case, seemed to say, "I think this suit should go forward, but there's Gen-Probe, and I must follow Gen-Probe." The District Court, at least as I read it, seemed to think that Gen-Probe moved in a different direction from where the Federal Circuit was before.
05-608 +++$+++ 44723 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In all of the prior Federal Circuit cases, the licensee had stopped paying royalties. And what the Court explained in Gen-Probe is that that is the sine qua non, that a licensee can't establish jurisdiction, and it can't establish a right to challenge validity, if it's still paying royalties.
05-608 +++$+++ 44724 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Mahoney, you argue, in the alternative, that we should dismiss it on the basis of equitable considerations under the Declaratory Judgment Act. We can't reach that argument unless we rule against you on the Article III question. Is that right?
05-608 +++$+++ 44725 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so, Your Honor. I think you can, because I think that you can do it as an alternative threshold prudential jurisdictional dismissal in the nature --
05-608 +++$+++ 44726 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We would have to be assuming that we had jurisdiction, wouldn't we?
05-608 +++$+++ 44727 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that --
05-608 +++$+++ 44728 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Under Article III?
05-608 +++$+++ 44729 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that a prudential dismissal under Article III would also be fine, and that Steel Co. would allow for that kind of dismissal, because Wilton said that you can dismiss for lack of jurisdiction, at the front end, on prudential grounds if you know that there would not be relief allowed at the back end. And I think that there's no need for a remand to do this. We are really talking about an equitable rule that has governed equitable actions for 300 years. It is a --
05-608 +++$+++ 44730 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what -- but jurisdiction is a question of power, Does the Court have the power to do this? A discretion question is different. It's, "We have the power to entertain this case, but, as a matter of equity, we're not going to do so." The power question, I think, is a -- one that's -- it's either yes or no, either the court has the power, or doesn't.
05-608 +++$+++ 44731 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I don't think that the Court has to answer that question in order to dismiss on a prudential ground, a prudential jurisdictional ground, and nor is there a need for a remand in Samuels versus Mackell, and in Cardinal, for instance. Those are cases where the Court adopted prudential rules and went ahead and applied them without remand. I -- and no remand's necessary. The Federal Circuit has already looked at this. They --
05-608 +++$+++ 44732 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Mahoney, can I ask you one question before your light goes off? I know it's not -- goes to the "case or controversy" issue, but, in your view, was the bringing of this action a material breach of an implied condition of the contract that would justify a termination of a license?
05-608 +++$+++ 44733 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would depend on whether there is an implied covenant, Your Honor. It wasn't --
05-608 +++$+++ 44734 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm asking you whether --
05-608 +++$+++ 44735 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- argued below.
05-608 +++$+++ 44736 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you think there was.
05-608 +++$+++ 44737 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it -- it may well be, but I don't think the answer in this case turns on it, because I think they have to have their own right to bring the action, whether it's a breach or not, and that they don't. Because they don't have an implied right of action under Lear, they don't have a right to bring this action. And that is an essential component of their ability to challenge the issue of validity. So, I think that's the first and fundamental --
05-608 +++$+++ 44738 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if that's so, and it's a super-violation of an implied covenant, and I guess you could get damages.
05-608 +++$+++ 44739 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that their theory, Your Honor, is that a licensee can do this at any time, and that --
05-608 +++$+++ 44740 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I think that your theory is that it's a super-violation of an implied covenant.
05-608 +++$+++ 44741 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I don't think -- whether it's an implied covenant or not --
05-608 +++$+++ 44742 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ "Not only did we agree to it, but we you can't even do it if you agree to it."
05-608 +++$+++ 44743 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that an additional factor that bears on this analysis is also the fact that Congress has never created an implied right of -- has never created a right of action -- Thank you, Your Honor.
05-608 +++$+++ 44744 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Mahoney. Mr. Kester, you have 3 minutes remaining.
05-608 +++$+++ 44746 +++$+++ FALSE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. Just several quick items. I think -- I think, Mr. Chief Justice, you were, a while ago, putting the horse in front of the cart, which was right where it belongs. The contract claim is clear in the record. It's at page 136 of the joint appendix. I don't think more needs to be said about it. Harvey Steel, on which Respondents rely, was, of course, overruled --
05-608 +++$+++ 44747 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wait, wait. Before you leave that, do you agree that it was not raised below?
05-608 +++$+++ 44748 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, we don't.
05-608 +++$+++ 44749 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where -- can you tell us where it was raised below?
05-608 +++$+++ 44750 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it -- it's raised in the -- in the first remanded complaint. It's been a -- it's been here throughout. If it -- if it even matters. I mean, we wouldn't concede that that -- that that would even matter.
05-608 +++$+++ 44751 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But was it raised before the Federal Circuit?
05-608 +++$+++ 44752 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The whole record was -- you mean was it argued --
05-608 +++$+++ 44753 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
05-608 +++$+++ 44754 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe it was. I'd have to go back and -- you mean in terms of the oral argument. It was certainly in the briefs. It was certainly not waived. There was never, of course, any -- anything in the license, or anyplace else, where Petitioner gave up the right to sue. Petitioner doesn't need permission in the license to sue. And as for the shock in the lower courts when this case was decided, I would call to your attention what the Federal Circuit, in 1983, itself, said, and it quoted the Warner-Jenkinson case, which was the Second Circuit case that my friend dismissed somewhat. The C.R. Bard case -- this is Federal Circuit, early -- starts out, the opening line -- it says, and I quote -- this is 716 F.2d 875 -- "We hold that a patent license need not be terminated before a patent licensee may bring a Federal declaratory judgment action," close quote. And the last words of the same opinion, at 882 of 716 F.2d, are, "We hold that a patent licensee may bring a Federal declaratory judgment action to declare the Federal -- to declare the patent subject to the license invalid without prior termination of the -- of the license." That was 1983. Gen-Probe was 2004. Something happened in the interval. Finally, the discussion of settlements here strikes me as, indeed, strange, because if this -- if a license were to be redesignated as a settlement, we would have the situation here where -- a license was signed in 1977; the only patent at issue in this case was not even issued until 2001.
05-608 +++$+++ 44755 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Kester.
05-608 +++$+++ 44756 +++$+++ TRUE +++$+++ MR. KESTER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. --
05-608 +++$+++ 44757 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The case is submitted.
05-6551 +++$+++ 44762 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first in 05-6551, Cunningham versus California. Mr. Gold.
05-6551 +++$+++ 44764 +++$+++ FALSE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The procedure for imposing aggravated sentences under California's Determinate Sentencing Law implicates the bright line rule this Court set forth in Blakely and Apprendi. Any fact other than the fact of a prior conviction which increases the penalty for a crime beyond the prescribed statutory maximum must be proved to a jury beyond a reasonable doubt. The primary point of contention in this case is what constitutes the statutory maximum under California's Determinate Sentencing Law. Petitioner believes that it's the middle term, whereas respondent maintains that it's the upper term. In fact, this case really boils down to just one question. Can a judge in California legally impose an upper term sentence based solely on the facts reflected in the jury's verdict or the defendant's admissions. The answer to this question is no. California's Determinate Sentencing Law specifies three possible prison terms for each -- for each felony conviction, a lower term, a middle term, and an upper term, although it mandates that judges shall impose the middle term unless there are factors of aggravation or mitigation. California case law confirms that judges must impose the middle term where there are no aggravating factors, and even the state appears to concede the point. Because the middle term is the greatest punishment a judge can impose based solely on the facts reflected in the jury's verdict, it, and not the upper term, constitutes the statutory maximum for --
05-6551 +++$+++ 44765 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Gold, I know you take that position on the facts of this case, but is it not true that there could be cases in which the verdict of the jury would establish certain facts that would justify going beyond the middle term? For example, the Black case itself, as the justice who dissented in this case thought the sentence was permissible in that case.
05-6551 +++$+++ 44766 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, Justice Stevens, to the extent that a fact is found by the jury which can be used as an aggravating factor, but is not an element of the crime or found by the jury as an enhancement, that could be used to impose an upper term sentence. Yes.
05-6551 +++$+++ 44767 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would it always, then, be surplusage in the indictment when a fact is charged and subsequently found by a jury, is it always a surplus fact? Because otherwise -- I mean, what I'm getting at is, otherwise, one assumes it would be a way of stating an element of the offense, and as I understand it, under California law, the element of the offense couldn't satisfy the additional fact necessary to jump up to the higher range.
05-6551 +++$+++ 44768 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. I mean, typically under California law, in the information, they allege the crime, and on occasion, some of the elements. But typically not all of the elements.
05-6551 +++$+++ 44769 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If in this case, the indictment had charged -- had claimed that the defendant was the father of the victim, would that have satisfied at least the fact-finding for the aggravator of being in a position of trust?
05-6551 +++$+++ 44770 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, the fact that the information would have alleged that does not mean that the jury would have found that fact, because just because -- what is alleged in the indictment or in the information --
05-6551 +++$+++ 44771 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That depends on the instructions.
05-6551 +++$+++ 44772 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-6551 +++$+++ 44773 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If the instructions said, you know, you've got to find all of the things that are set out in the information, and the jury returned a verdict, then we would have found -- and that would satisfy the requirement of an additional fact on an element.
05-6551 +++$+++ 44774 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe so, Justice Souter.
05-6551 +++$+++ 44775 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That would be an erroneous instruction, I assume.
05-6551 +++$+++ 44776 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Scalia.
05-6551 +++$+++ 44777 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You either have to have an erroneous instruction or a special verdict.
05-6551 +++$+++ 44778 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-6551 +++$+++ 44779 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Only in the sense that it would require the state to prove more than it had to prove for the elements of the crime.
05-6551 +++$+++ 44780 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
05-6551 +++$+++ 44781 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Souter, and I agree that it would be no different than submitting aggravating factors as a separate allegation to the jury as a separate instruction.
05-6551 +++$+++ 44782 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Counsel, the thing that concerns me about your case is that California's system looks a lot like the Federal system after Booker. We haven't addressed the issue or had a case involving review of reasonableness for upward departure. But at least as the circuits have said it, in a federal case, the district judge imposes a maximum, doesn't give any reason for departing from what the guidelines might suggest is a reasonable middle ground, he may be -- I think in most circuits, that would be reversed. Same here. If a California judge imposes the upper tier but doesn't make any findings, that's going to be reversed. But if a federal judge gives a statement of his reasons, you know, a vulnerable victim, or an offender likely to offend again, whatever, under most circuit law, that's going to be upheld. Here, if the California judge does that, that's going to be still struck down under your view. You talked about Blakely and Apprendi. But how does this system look to you under Booker?
05-6551 +++$+++ 44783 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, this system really is -- this is just like -- this case is just like Blakely. What the California Supreme Court in People against Black found, they used references to reasonableness as a label and a characterization to avoid the bright line rule of Blakely and Apprendi. Instead they tried to fit the Determinate Sentencing Law within the Federal system this Court found constitutional in Booker. But the California Supreme Court seriously misread Booker. In Booker, in the remedial portion of that decision, this Court found the Federal system to be constitutional by rendering the guidelines -- the mandatory guidelines to be advisory. Now --
05-6551 +++$+++ 44784 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Under California, they're advisory anyway. I mean, even if the judge makes the necessary finding to get up into the higher tier, he doesn't have to impose the higher sentence, he can impose the lower one.
05-6551 +++$+++ 44785 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, no. He has to impose the middle term. He can't deviate --
05-6551 +++$+++ 44786 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ My point is if he makes a finding that justifies going up to the higher term, 16 years in this case, he doesn't have to impose that higher term, he can go back to the middle term.
05-6551 +++$+++ 44787 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, no, you are absolutely right. He has discretion not to do that.
05-6551 +++$+++ 44788 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But does it say that the only basis for a judge reasonably imposing the higher term is that the judge has found a fact that the jury didn't find.
05-6551 +++$+++ 44789 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-6551 +++$+++ 44790 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It does say that? As I read the California opinion, they can go up above the lower, the middle term for any reason, but it has to be reasonable.
05-6551 +++$+++ 44791 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, what this -- what the California Supreme Court did, in this --
05-6551 +++$+++ 44792 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Maybe that's hard to justify in terms of California's statute, but we take the California Supreme Court's interpretation of that statute as the law of California. So what is the answer to my question as you read Black?
05-6551 +++$+++ 44793 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The answer to your question is that Black has made no change whatsoever to the mandatory nature of California's Determinate Sentencing Law, and it has always operated in a mandatory way.
05-6551 +++$+++ 44794 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I think -- let me give you --
05-6551 +++$+++ 44795 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think your answer would be that how could it possibly be reasonable except for the consideration of some additional fact? What makes it reasonable other than facts? Atmosphere? I mean --
05-6551 +++$+++ 44796 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If that is your answer, my example will be -- I'll give you a specific example. One example is the question of consecutive versus concurrent sentences, which may have very little to do with facts. A second example might be that a judge in a particular community says there's been an unbelievable rash of breaking and entering. I see how the writers of this guideline, of the statute that embodies it, thought that breaking and entering was X, occurred with X frequency, but we have in this community a sudden rash of crime, such that I think the reasonable thing to do is to increase the sentence as a deterrent. Now, suppose that's what he writes. And is there anything in California law, as you understand Black, that makes that unlawful?
05-6551 +++$+++ 44797 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-6551 +++$+++ 44798 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What?
05-6551 +++$+++ 44799 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that the statements in Black --
05-6551 +++$+++ 44800 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which statements make that unlawful?
05-6551 +++$+++ 44801 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, in Black, the California Supreme Court repeatedly stated that the way the system works in California is that it is a mandatory system. So as an example, at 35 Cal.4th 1254, the court stated, "the court cannot impose the upper term unless there is at least one aggravating factor." At 1260, the court said, "in a case in which no aggravating factor can be found, the judge cannot impose the upper term." There are a number of statements throughout the Black opinion that indicate the system has never changed from a mandatory one to an advisory one, so that reasonableness is not the issue. Whether the system is mandatory or advisory --
05-6551 +++$+++ 44802 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So in other words, when they say mandatory factor, they mean aggravating factor, they mean to exclude the kind of aggravating factor I just mentioned.
05-6551 +++$+++ 44803 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, a judge can consider those aggravating factors.
05-6551 +++$+++ 44804 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, could he? Could the judge consider the fact that I just mentioned, that there's been an extraordinary rash of breaking and entering in the vicinity?
05-6551 +++$+++ 44805 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor --
05-6551 +++$+++ 44806 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes or no?
05-6551 +++$+++ 44807 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, under California's law, they have -- in addition to factors relating to the crime and factors relating to the defendant, the judge can consider unenumerated factors.
05-6551 +++$+++ 44808 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Unenumerated factors. So mine would be an unenumerated factor.
05-6551 +++$+++ 44809 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-6551 +++$+++ 44810 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. If he can consider unenumerated factors -- now, I purposely picked mine because I take it it is an example of a factor that Apprendi would not require a jury to find. It is a factor about the community. It is not a factor about this defendant. It is not a factor about the manner in which this defendant committed the crime. It is not a fact of that kind.
05-6551 +++$+++ 44811 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I'm not sure whether that sort of factor would be upheld as a --
05-6551 +++$+++ 44812 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if it were reasonable, it would be upheld, or not?
05-6551 +++$+++ 44813 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it was found to be a decision that was reasonably related to the crime -- I'm sorry, to the decision being made by the judge, then yes, it would be upheld as a valid aggravating factor. But I believe that it would still need to be then, if it would be considered a valid aggravating factor, then it would need to be tried by the jury.
05-6551 +++$+++ 44814 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I clarify one thing? You mean that a rash of crimes committed by people other than the defendant could be an aggravating factor?
05-6551 +++$+++ 44815 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, under California law, I'm not saying that that would be upheld as a valid reason. I'm just --
05-6551 +++$+++ 44816 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there's nothing in California law suggesting that that would be upheld, is there?
05-6551 +++$+++ 44817 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Stevens, there is not.
05-6551 +++$+++ 44818 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you draw -- as I understand it, your basic answer to Justice Breyer is, it may well be that the situation in the community may justify a judge in going to the -- to the high end of the range that is possible, but that is not a factor that determines what range is possible. And the fact that determines what range is possible is an aggravating fact, and in that respect, it is different from the Federal system. Is that --
05-6551 +++$+++ 44819 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely right, Justice Souter.
05-6551 +++$+++ 44820 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I didn't understand it. If he does -- tell me again, would you? I thought your response was going to be what Justice -- who suggested it? (Laughter).
05-6551 +++$+++ 44821 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Somebody on that side suggested it. That to talk about the fact that there's a lot of crime in the community as an aggravating factor doesn't make any sense. Aggravating factor means something that makes the crime that this person committed worse, not the need for punishment greater, but makes the crime worse. Now, if that is not your answer, what is the answer that you gathered, from the left of me?
05-6551 +++$+++ 44822 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, with all due respect to Justice Breyer, I believe that that probably would not be an aggravating factor that would be upheld under California law. I was just trying to make the distinction between whether an aggravating factor, no matter what it is, whether it is considered reasonable, whether that's enough to get the judge to go beyond the statutory maximum. But --
05-6551 +++$+++ 44823 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought your position was that aggravation must be reasonable. What the court in Black indicates is that it is not going to consider anything reasonable unless there's a fact to support it, unless there's a finding of fact to support it. Is that the position you take?
05-6551 +++$+++ 44824 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The position as far as what Black is saying?
05-6551 +++$+++ 44825 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
05-6551 +++$+++ 44826 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. I think Black -- what Black is saying is that an aggravating factor needs to be reasonable, but I was trying to make the distinction --
05-6551 +++$+++ 44827 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I think that there's the further indication that it is not going to be deemed reasonable unless it is supported by a finding of fact, as indicated in order to support one of the specific guideline aggravators.
05-6551 +++$+++ 44828 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly if the aggravating factor is not supported by the evidence, then it won't be considered reasonable and the imposition of a upper term won't be considered reasonable. But --
05-6551 +++$+++ 44829 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I still don't understand the distinction between the California system and a system of advisory guidelines with reasonableness appellate review. Let's take a hypothetical case where the statutory range after convictions on multiple counts is zero to a hundred years. And let's say you have two judges who have these cases. And one sentences the defendant to zero, probation. The other one sentences the defendant to a hundred years. Without saying a word of explanation for either sentence, isn't the appellate court in that situation going to say, you have to tell us why you have chosen zero or why you have chosen 100? And if the trial judge provides an explanation, isn't the trial judge necessarily going to be reciting certain facts that the judge believes to be true about the offense and the offender?
05-6551 +++$+++ 44830 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, if you're describing the Federal system or just a hypothetical system, my understanding in a indeterminate type of system, a judge can impose whatever sentence he wants. And whether or not in a particular system, that will be reviewed for reasonableness is a separate question as to what he --
05-6551 +++$+++ 44831 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But isn't it reviewed for reasonableness -- isn't the reasonableness review necessarily going to require what is, in essence, fact-finding by the trial judge, and a review of the reasonableness of the sentence in light of those facts by an appellate court?
05-6551 +++$+++ 44832 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. But what -- in Booker, what made the Federal system constitutional was not the engraftment of the reasonableness review. It was rendering the mandatory guidelines advisory. And that's the aspect of California's Supreme Court Black decision that they've misread the Booker decision.
05-6551 +++$+++ 44833 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why is that, why is that so? Why isn't the middle sentence, just like what the guideline -- what the guideline would indicate? And if a Federal court would say, if I sentence within the guideline, that will be presumptively valid, as many courts have held. Not this Court yet. That would be presumptively valid. And if I go outside, I have to give a reason that will survive appellate review. Well, why isn't the middle sentence identical in function to the Federal sentencing guidelines advice?
05-6551 +++$+++ 44834 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, I think that it's the mandatory nature in California of the middle term. The judge cannot exceed the middle term unless he finds at least one aggravating factor. And my understanding in the Federal system is that the judge can exceed the -- can exceed these guideline ranges and that they're just advisory.
05-6551 +++$+++ 44835 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ To say that a sentence within the guideline range is reasonable is not to say that a sentence outside the guideline range is unreasonable. So under the Federal system, it is perfectly possible -- unless, unless we hold otherwise -- for a judge to give a sentence beyond the guideline range, and nonetheless to be affirmed, because although the guideline range is reasonable, there are other systems that would be reasonable, right?
05-6551 +++$+++ 44836 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your -- Justice Scalia. And I think that to the extent that we are going to say that any sentence outside this guideline range is going to be unreasonable and necessarily require reversal is going to be no different than the mandatory guideline system this Court struck down in Booker itself.
05-6551 +++$+++ 44837 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So the only part of the California system that creates a problem is this -- the one sentence in the statute that says the judge shall impose the middle term unless he makes a finding.
05-6551 +++$+++ 44838 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's absolutely right.
05-6551 +++$+++ 44839 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that if we rule in your favor, the great benefit for criminal defendants in California will be that judges can now depart without making a particular finding, they can increase the sentence even though they do not find an aggravator within the limits of the California system.
05-6551 +++$+++ 44840 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But Mr. Chief Justice, it is not clear that that would be the result in California. The legislature could very well --
05-6551 +++$+++ 44841 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Doesn't the decision in Black suggest the Supreme Court thinks that would be the result? The California Supreme Court?
05-6551 +++$+++ 44842 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure that they think that that would be the result. They certainly did not make an attempt to reform or rewrite the statute so that it was now an advisory system.
05-6551 +++$+++ 44843 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought that -- it looked to me that's what they were trying to do in Black. I mean, in a way, it is kind of the -- the Black opinion, the day after, if this Court were to agree with you, and the California Supreme Court issued a decision looking a lot like its decision in Black, that would be perfectly valid. In other words, saying that judges can depart within this whole -- just like Booker, they can depart within this whole range, and we're going to review their determinations for reasonableness. They don't have to impose the middle sentence, they can impose a higher sentence, and we will review it for reasonableness. That would be perfectly all right.
05-6551 +++$+++ 44844 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, and that may very well be the case, but that's not what the California Supreme Court did in Black. They made no attempt. What they did was described the Determinate Sentencing Law as it has always operated. And at no time did they purport to change the law in California, including the mandatory nature of the Determinate Sentencing Law.
05-6551 +++$+++ 44845 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what they said was judges can impose a sentence in either of the three -- any one of the three tiers, and we are going to review it for reasonableness. And if they don't make findings, it is going to be unreasonable, right?
05-6551 +++$+++ 44846 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but once again, the reasonableness aspect is not what makes the system constitutional. It is the mandatory versus advisory aspect. And again, that's what made the Federal system constitutional based on this Court's Booker decision. It wasn't this engraftment of reason -- reviewing these sentences for reasonableness.
05-6551 +++$+++ 44847 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, to be quite -- to expose my thinking on it, I found it rather ambiguous, pages 1260 and 1261. Is that what -- the first part of that is -- it says what you said. I have no doubt. It says just what you said. But then you get over to the part, the discussion of Booker, and when they start talking about Booker, they seem to say, seem to say, that they're adopting what Booker says. Now, if they are adopting what Booker says, that means, and that's why I used my example, that I guess a judge would have the power, if it is reasonable, to just say the guideline, though it says thus and so, isn't right for my circumstance. And therefore, I don't adopt it. And that would be reviewed for reasonableness, his decision not to follow it. And similarly, we have cases, for example, where they're trying to construct a sentence and they can't get it right because of the consecutive/concurrent nature, so he adds a few things on, you see, to the sentence, in order -- and then makes them concurrent. Or you could have things where it is a very sophisticated conspiracy, and the jury found the conspiracy. It is a characterization of a conspiracy, it is very sophisticated. And I thought, well, maybe all three of those are reasons for going up in California. And I read those pages, 1260, 1261, and my honest opinion is I'm not sure.
05-6551 +++$+++ 44848 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, I have no doubt that the California Supreme Court was trying to fit the Determinate Sentencing Law within the constitutionality of this Court's Booker system. But as far as 1261, I'm looking -- every single time they talk about Booker or reasonableness, they also make sure to give the -- to make sure that they make clear that the way the sentence -- the system works is that there's still this requirement of finding an aggravating factor.
05-6551 +++$+++ 44849 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ An aggravating factor means aggravating fact.
05-6551 +++$+++ 44850 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Aggravating fact, uh -- yes.
05-6551 +++$+++ 44851 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What would you think would be necessary, what would be the least change California would have to make to bring its system into compliance with our decisions?
05-6551 +++$+++ 44852 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, the court could -- the court or the legislature could change section 1170(b) to read something like: "A judge may impose" instead of "shall impose" the middle term. And that would be valid to the extent that what they mean by "may" is they can now impose the middle term based just on the facts found by the jury.
05-6551 +++$+++ 44853 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or they could say the middle term will always be reasonable. Couldn't they say that?
05-6551 +++$+++ 44854 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They could, and in effect, they do say that --
05-6551 +++$+++ 44855 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Even though there is the possibility that something above the middle term would also be reasonable without necessarily finding a discrete fact beyond the indictment to justify it. Right?
05-6551 +++$+++ 44856 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. There are --
05-6551 +++$+++ 44857 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The protection that criminal defendants now have, that they cannot be sentenced to a higher term unless the judge makes particular findings, will then be no longer applicable.
05-6551 +++$+++ 44858 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. I -- and I --
05-6551 +++$+++ 44859 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's true unless the California legislature does what most states have done in response to Booker, which is not that route at all. They did maintain their determinate sentencing, but they just required the jury finding. That's what I think seven out of nine states have done.
05-6551 +++$+++ 44860 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Stevens. And that was the point I was going to make, that that is a very likely outcome, given what the majority of other states have done. And that, Mr. Chief Justice, would be a --
05-6551 +++$+++ 44861 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that now the defendant will have the protection of his jury determining his guilt, will not only have to know the evidence of his guilt of the crime, but also know why he's likely to re-offend in the future, things like he used a firearm, all the bad things that will increase his sentence and might affect how the jury views the issue of guilt in the first place.
05-6551 +++$+++ 44862 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not necessarily, Your Honor. Because for those type of prejudicial factors, California is well-positioned to handle those, because they do so anyway in bifurcated proceedings. There are often enhancement allegations that relate to recidivism or even gang allegations, anything that's prejudicial are handled at a separate proceeding after trial.
05-6551 +++$+++ 44863 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And are there a half a dozen jury trials in each -- for each of those various aggravating factors that now have to be tried to the jury?
05-6551 +++$+++ 44864 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, what I'm trying to say is that basically California does that anyway now. Most of the factors that relate to the defendant have to do with recidivism. And those are the same kind of factors that are alleged in the information, and are tried in a bifurcated proceeding to the jury, or are waived and then the trial court will consider them.
05-6551 +++$+++ 44865 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's interesting. Are there, in fact -- what's your estimate, guess, as to how many criminal jury-tried cases in California, what percent have two juries? Have more than one jury?
05-6551 +++$+++ 44866 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They don't have more than one jury. They are tried to the same jury, but they are tried after the --
05-6551 +++$+++ 44867 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In what percentage would you say they have bifurcated or several jury trials? I mean, more than just one.
05-6551 +++$+++ 44868 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I would say that there are lots of cases where they're tried to a court. The defendant will waive them if they're based on recidivism.
05-6551 +++$+++ 44869 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, no, but how many, how many times do they -- let me call it impaneling the jury twice, or two juries, or it could be the same one.
05-6551 +++$+++ 44870 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The same --
05-6551 +++$+++ 44871 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. What percentage would you guess? Just make a rough -- roughest conceivable guess.
05-6551 +++$+++ 44872 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Completely anecdotally, I would say 20 percent. I -- if -- I would like to reserve the remainder of my time.
05-6551 +++$+++ 44873 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Gold. Mr. Laurence.
05-6551 +++$+++ 44875 +++$+++ FALSE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The central lesson from Booker, from the real portion of Booker, is that not every constraint that's placed on a trial court's discretion in selecting a term within a range that requires fact-finding invokes the Sixth Amendment requirement of a jury trial. A reasonableness constraint that requires the court to consider all the circumstances of the defendant and select a reasonable sentence in relation to those facts and those factors does not invoke the Sixth Amendment jury trial right. California has consistently construed its system as placing nothing more than a reasonableness constraint on the trial court's discretion in selecting among the --
05-6551 +++$+++ 44876 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's not so at all. California says if you go over the middle range, it is unreasonable, period, unless you prove or you find one of the aggravating factors. That's a constraint. You cannot go above the middle range.
05-6551 +++$+++ 44877 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, but that's the same constraint that this Court found not above the Constitution in Booker.
05-6551 +++$+++ 44878 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, that's not what we found in Booker. We found in Booker, or at least the way the lower Federal courts have been interpreting Booker, if you use the guideline range, and you're within the guideline range, that is automatically reasonable, you don't have to worry about it. But we haven't held, and I don't believe most of the Federal courts have held, that if you go beyond the guideline range, it is automatically unreasonable. And that is the case with the California system, if you go beyond the middle range, it is automatically unreasonable unless you -- unless you find one of the aggravating facts.
05-6551 +++$+++ 44879 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I'd have to respectfully disagree with that because we're not talking about a middle range. What we are talking about is an end point. If I can use the Booker example, where you have a term of 10 years to life, the court can certainly make a selection within a reasonable range. At some point, as the court increases its sentence beyond a certain point, it will become unreasonable. We don't need to identify specifically what that point is, the guideline range or something close to it. But when you get to the end point, if there's no justification offered whatsoever for a life term --
05-6551 +++$+++ 44880 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the difference is, in the Federal system, the judge can go above and it can be reasonable based on facts that were found by the jury. But in California, to go beyond the middle range up to the upper range, it must be a fact not found by the jury.
05-6551 +++$+++ 44881 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor --
05-6551 +++$+++ 44882 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that not correct?
05-6551 +++$+++ 44883 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's only correct because California has a discrete three-term sentence.
05-6551 +++$+++ 44884 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Correct. But whatever the reason, it is correct.
05-6551 +++$+++ 44885 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is correct, Your Honor, but the central point of both Booker and California is that that upper term is being reversed not because it's unauthorized, but because it's unreasonable.
05-6551 +++$+++ 44886 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On one hand, in one case, the unreasonableness depends on a finding of fact not made by the jury. But in the Federal system, it does not require that finding by a jury.
05-6551 +++$+++ 44887 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if a Federal judge wished to impose a life term, there would have to be something to justify it, or it would be reversed on appeal.
05-6551 +++$+++ 44888 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It wouldn't necessarily be a fact. It could be a fact. What it says in here is that if the -- they speak of a circumstance related to the crime, or the offender. And in a case in which no such aggravating factor can be found, the judge cannot impose the upper term. Now, I grant you there's some language that I -- it seems to me on the next few paragraphs, seems to say something a little different. But that language, if you just take that, seems to say, unless, Judge, you find a fact about the situation that would make it reasonable to go above the middle range, you can't, under the law. Now, if that's what it says, I have to admit, I find it a little difficult to distinguish from Blakely and other cases where I dissented, but the Court's law is what the majority says. So that seems to me almost like it, unless you can tell me that I'm wrong in that.
05-6551 +++$+++ 44889 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would say you are wrong, Your Honor, simply because California has construed its sentencing law in 1170(b) as imposing nothing more than a reasonableness --
05-6551 +++$+++ 44890 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but if -- as I understand it, it has construed it by saying that if you go above the middle term without a discrete finding of fact beyond what has to be proven to the jury, it is unreasonable as a matter of law. And that unreasonableness as a matter of law feature is what distinguishes it from the Federal system post Booker.
05-6551 +++$+++ 44891 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I would disagree, because the upper term, the statutory maximum in Booker would also be necessarily unreasonable if there was no justification offered by the trial court --
05-6551 +++$+++ 44892 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the justification under the Federal system could be, you know, this is what the sentencing commission thought was a reasonable sentence for this crime. I disagree with that. Now, there are other authorities who think that that's a little too, you know, below what it ought to be. He can simply disagree with the sentencing guidelines. Or he could point out what Justice Breyer suggests, well, the sentencing guidelines may be okay for some jurisdictions, but in this jurisdiction, we have a special problem with regard to this kind of a crime. He can do that and doesn't have to find any special fact. He cannot do that in California.
05-6551 +++$+++ 44893 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I have two responses to that, Your Honor. First of all, with regard to what the ruling in Booker was, the court's discretion has to be exercised in relation to the policy considerations set out in 3553(a), which are the same policy considerations that the court must look at, very similar in California, that there are -- the court doesn't have unbridled discretion, select any term based on whim, based on whatever it feels would be -- whatever he decides to do on Tuesday. The court has to do it with regard to the policy considerations that are inherent in what the guidelines decisions were, and what the legislature established should be appropriate sentencing considerations.
05-6551 +++$+++ 44894 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that does not necessarily mean that he must make a discrete finding of fact in order to do it. We come back to Justice Scalia's hypo a moment ago. He can go, you know, in theory, under Booker, he can go above the guideline range consistent with policy positions that may not be precise, without necessarily making discrete findings of fact. I mean, you'd have to judge it in each individual case, but the possibility is there. And under the California system, the possibility is not there.
05-6551 +++$+++ 44895 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, the systems converge at the end point. And that is, under the Federal system, going to that right end point would be unreasonable in every circumstance if there's no justification offered, other than he committed the offense. In California, because we have three discrete terms rather than a spectrum, you have the same effect when you get to the end point. It would be unjustified -- it would be an unreasonable sentence if there's no justification offered. But the fact that California has three points rather than a range shouldn't be constitutionally determinative.
05-6551 +++$+++ 44896 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And they can't be a fact -- in California, it can't be a fact found by the jury, as Justice Stevens pointed out. That's a significant difference.
05-6551 +++$+++ 44897 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it can't be an element. And that -- obviously, there could be a circumstance where some special findings were made, in which case that might be beyond the elements. But it can't be an element simply because you shouldn't be double counting what's already established. The range is set by the elements of the offense, that all three terms are available from the jury verdict based on those elements. If you are going to make a selection within that range, it would have to be more than simply the defendant committed the offense. And that's the same with the Federal guidelines. Simply saying --
05-6551 +++$+++ 44898 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It isn't the same in the Federal guidelines. Under the Federal guidelines, the judge could say, you know, I think this offense is more serious than what the sentencing commission thought, and these are my reasons for it. There was a dissent, you know -- the sentencing commission's determinations are reasonable, but they are surely not the only reasonable disposition. And it is open to a Federal district judge to say, well, that's what they thought, and I took it into account, and I seriously considered it, and I think they are wrong on this, I think this is more serious. And that could be a perfectly reasonable determination. That couldn't be done in California.
05-6551 +++$+++ 44899 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, it could, Your Honor. And I would refer you to Rule 4.410 in our appendix, page 2 and 3, that the general policy considerations that over -- that overlay our sentencing guidelines or our sentencing system, include deterrence for this defendant and deterring others from committing the same crime, that you can just look to the -- what is happening in this particular neighborhood, as the examples brought out.
05-6551 +++$+++ 44900 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you saying to us that under the California system, if a California judge went through exactly the thought process that Justice Scalia just outlined and put that down on paper, without finding any discrete fact beyond the elements the jury found, that he could go to the third tier? I really think deterrence requires the third tier, not the middle tier? Can a California judge do that?
05-6551 +++$+++ 44901 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, deterrence is a basis for going to the third tier.
05-6551 +++$+++ 44902 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, that's critical, and that's what I didn't understand about --
05-6551 +++$+++ 44903 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's not true. You certainly didn't argue that way in your papers up to now. I thought that there has to be a finding of some aggravating factor, not simply, I think deterrence is more than what the statute says, or deterrence requires more than what the statute says. Is that really your position, that if a judge thinks deterrence requires more than the middle range, for that reason alone, he can say I ignore the middle range?
05-6551 +++$+++ 44904 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's part of the rules of court under 4.410. Yes, Your Honor.
05-6551 +++$+++ 44905 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where --
05-6551 +++$+++ 44906 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would be --
05-6551 +++$+++ 44907 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's appendix page 3 in the brief.
05-6551 +++$+++ 44908 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Page 2 and 3.
05-6551 +++$+++ 44909 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm not sure that that's the way the Black court interpreted it. The Black court talked about a requirement that the upper-term sentence be imposed only if an aggravating factor exists.
05-6551 +++$+++ 44910 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, that would be considered an aggravating factor, to use deterrence for this particular case --
05-6551 +++$+++ 44911 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What do I do here? Because the sentence I read to you seems to say the opposite. But then, two sentences on, they list, the Federal judge is not bound by the guidelines, he must consult the guidelines. And after they say, an aggravating California -- it says the discretion available -- the -- in California law, that may include any fact that the judge reasonably determines to be relevant. The Determinate Sentencing Law, about an upper term, is comparable to Booker's requirement that a Federal judge's sentencing decision not be unreasonable. Well, I assumed until this minute that the first statement trumped the second. But now when I see the court rule, certainly that court rule is possible, given that to be read as permitting them, particularly with the second statement, you could read the second statement as saying, yes, they can say a particular instance or a kind of sentence seemingly mandated at the middle level is, in this community, so contrary to the purposes of punishment that I'm giving a higher one. To be honest, I don't know what Black means.
05-6551 +++$+++ 44912 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm sorry, before you -- could you tell me where the court rule you're talking about is set out?
05-6551 +++$+++ 44913 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's in our appendix, page -- the appendix to our brief, I'm sorry, the appendix to our brief, page 2 and 3.
05-6551 +++$+++ 44914 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You say in your brief, which doesn't seem to me to comport with what you are saying here, for a judge to exceed the base range, for example, by applying enhancement or an alternative sentencing scheme, the predicate fact for the enhancement or alternative scheme must be pleaded and proved to a jury beyond a reasonable doubt. There's no indication there that the judge could just say, I think more deterrence is necessary and therefore, I'm going to exceed the base range. That's just totally incompatible with that.
05-6551 +++$+++ 44915 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that's to exceed the base range, to go beyond the three terms. If you want to impose an enhancement for gun use, or for an enhancement such as in Apprendi, not for selecting a term within the base range.
05-6551 +++$+++ 44916 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. But even for selecting a term within the base range, I'm going to read now from Rule 4.20. Part (b) says, "circumstances in aggravation and mitigation shall be established by a preponderance of the evidence." That's not the way we refer to judges' reasoning about policy. That's the way we refer to proof of fact. And I don't see how under subsection (b) your answer to me can be correct.
05-6551 +++$+++ 44917 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think the rules of court are viewed as a whole with 4.408, which talks about anything in addition to -- that the rules of -- the examples set out are not exclusive and not determinant, that anything can be a consideration.
05-6551 +++$+++ 44918 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but they have to be an aggravating factor.
05-6551 +++$+++ 44919 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-6551 +++$+++ 44920 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And to talk about the need for more deterrence as an aggravating factor, that's not an aggravating factor.
05-6551 +++$+++ 44921 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think that the example that was given was in relation to the community that was experiencing some uptick in crime.
05-6551 +++$+++ 44922 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's not an aggravating factor. It's a basis for imposing a harsher sentence, but it doesn't aggravate this crime as opposed to the same crime committed by other individuals. It's not an aggravating factor.
05-6551 +++$+++ 44923 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, the importance of our position, the central thrust of our position is that the reasonableness constraint, the constraint imposed under 1170(b) has been interpreted as a reasonableness constraint. It doesn't matter if factors are required --
05-6551 +++$+++ 44924 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it can be a reasonableness constraint and also be a reasonableness restraint that requires a finding of discrete facts for reasonableness. The two are not exclusive.
05-6551 +++$+++ 44925 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true, Your Honor. That's true.
05-6551 +++$+++ 44926 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the rule seems to conflate -- seems very clearly to conflate the finding of a discrete fact. And it seems to me that we've got to consider the rule in responding to the ambiguity that Justice Breyer referred to a moment ago. The ambiguity has got to be read in light of subsection (b), and subsection (b) seems to answer the ambiguity by saying preponderance of the evidence. That means a fact finding.
05-6551 +++$+++ 44927 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, let me explain it this way, Your Honor, that it doesn't matter from our perspective whether or not there is a factor required in order to say that something is -- that the end point is reasonable, or if you are taking deterrence into account, that that's not -- it's not necessary for our argument because our position is that even if a factor is required --
05-6551 +++$+++ 44928 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So do you think under subsection (b) of Rule 4.420, if a judge said, I just think the policy of deterrence requires something heavier, you think that statement by the judge would satisfy the requirement that circumstances in aggravation shall be established by a preponderance of the evidence?
05-6551 +++$+++ 44929 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. I don't.
05-6551 +++$+++ 44930 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Then it seems to me that you cannot hold your position consistently with the state rule of court.
05-6551 +++$+++ 44931 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I would refer back to Black at 1255, which is the important part.
05-6551 +++$+++ 44932 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is Black repealing the rule of court? I mean, Black -- if we refer back to Black, we get the ambiguity that Justice Breyer has raised. In order to solve the ambiguity, we look to the court rule.
05-6551 +++$+++ 44933 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-6551 +++$+++ 44934 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Under the court rule, you admit that a judge's policy consideration, however sincerely held, could not satisfy the requirement to prove aggravation by a preponderance. Isn't that the end of the issue? I mean, if California wants to amend its rules or its statute, that's California's business. But we can't do it.
05-6551 +++$+++ 44935 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, no, Your Honor, but California has construed 1170(b) as not requiring a fact-finding to move from the middle term to the upper term. It's simply saying that when the court selects between the three, the decision must be reasonable.
05-6551 +++$+++ 44936 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then why didn't you give a different answer to my question? Why didn't you say, if it is reasonable for the court to conclude that deterrence really requires something tougher than the middle term, that's enough? Why didn't you say that is enough and (b) wouldn't preclude it?
05-6551 +++$+++ 44937 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think that my answer would have to be that in relation to the hypothetical given, I was answering it because -- with regards to the circumstances of the community that the defendant committed the crime in. If we take that away --
05-6551 +++$+++ 44938 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Let's -- the judge, the judge is on the bench. He says, there's too much crime in our community, look at these statistics, I believe that deterrence requires something heavier than the middle tier. Nothing unusual about this particular crime. I'm making a policy decision about what the law should require in general. Would that satisfy part (b) of 4.420?
05-6551 +++$+++ 44939 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I believe it would.
05-6551 +++$+++ 44940 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That would satisfy the requirement of, as it puts it, establishing by a preponderance of the evidence?
05-6551 +++$+++ 44941 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Uh-huh. Yes.
05-6551 +++$+++ 44942 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That was not what I understood California law to be or your position to be until this moment.
05-6551 +++$+++ 44943 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I have not been suggesting that that single factor is what makes California's law constitutional. What makes California's law constitutional is the fact that the constraint imposed on the court's discretion in selecting terms is a reasonableness requirement, just like Booker.
05-6551 +++$+++ 44944 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Reasonably -- that does not answer the problem.
05-6551 +++$+++ 44945 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think the California Supreme Court and the California legislature would be astounded to think that this is what they have wrought. They obviously intended to establish a scheme in which the judge would apply the middle range, not using his own perception as to whether more punishment is justified or not, unless there's some circumstances about this crime that make this person more guilty, and that's what you usually mean by aggravating circumstances, not the fact that you believe the crime should bear -- in general, should bear, a higher penalty. I think they would be astounded to find that this is what they have created.
05-6551 +++$+++ 44946 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, let me take a step back then and say that, even with the requirement that there be some factor, putting aside deterrence as a possibility, California's system as structured, which only requires a reasonableness constraint, does not violate the Constitution. And the reason being because all it's saying is that if you're going to the absolute maximum, the farthest point on the spectrum available, if there's no justification offered, it will be reversed as unreasonable, not as unavailable.
05-6551 +++$+++ 44947 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's the whole problem with your case.
05-6551 +++$+++ 44948 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly.
05-6551 +++$+++ 44949 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That there's -- and incidentally, under the rules, under 4.410, those are general objectives of sentencing.
05-6551 +++$+++ 44950 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-6551 +++$+++ 44951 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And that is a term of art that's different from circumstances.
05-6551 +++$+++ 44952 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-6551 +++$+++ 44953 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So it's only the circumstances that have to be found by a preponderance of the evidence. The general objectives can still be considered.
05-6551 +++$+++ 44954 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-6551 +++$+++ 44955 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But what we are involved with in this case and with this criminal, whose conviction and sentence we're reviewing here, are circumstances that aggravate, and these do require findings.
05-6551 +++$+++ 44956 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-6551 +++$+++ 44957 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If those findings aren't there, it's not reasonable.
05-6551 +++$+++ 44958 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct, Your Honor. Let's just take it a step back and say that what we're talking about is -- even if there are circumstances that are required, even if there are some justifications that the court must find aggravating factors, still the only constraint is reasonableness. And let me quote from what Black said about 1170(b), how it's been construed, not from the facial language, but how it's been construed. And what Black says is on page 1255 that: "Although subdivision (b) is worded in mandatory language, the requirement that an aggravating factor exist is merely a requirement that the decision to impose the upper term be reasonable."
05-6551 +++$+++ 44959 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So what we have -- now, this has clarified it, but I don't know what to do. I think if I read the opinion the way you're saying, I would say the California court, which is a good court, conscientious, managing a huge system of criminal law in the state, probably bigger than the Federal system, reads Blakely and they see that those guidelines in California as previously understood were violated. And they're thinking, how do we maintain this system as constitutional. And therefore, they write 1261, which can be read as saying we're Bookerizing it, and we come as close to Booker as necessary to make it constitutional. Now, that would be an understandable judicial reaction, and I can read the opinion as saying that, at which point I'm not certain what we're supposed to say, because I have no doubt that your unease reflects the fact that prior to Black, in California, it would have been pretty unheard of for a judge to depart upward on grounds other than factual grounds related to the circumstances of the crime or offender. But I also have no doubt that this opinion is written to try to save the California system. All right, so now what do I do?
05-6551 +++$+++ 44960 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think that the one thing that seems to be giving you some difficulty is the fact that California didn't explicitly say in Black, we are now officially Bookerizing our system. And the reason for that is because California had already implicitly construed the system as making all three terms legally available based on the jury verdict alone, and had simply used a reasonableness requirement. And that goes back to Hernandez, back in 1988, when California essentially anticipated Apprendi, and distinguished between making enhancements available based on the jury verdict on the elements alone, versus the three, the three components of the triad scheme.
05-6551 +++$+++ 44961 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it is the same old record we've been playing. But the reasonableness requirement has to be explained further. And when you explain it further, you find that there must be findings by a preponderance of the evidence for any of the aggravating or mitigating circumstances that are set out. That's different from the objectives of sentencing.
05-6551 +++$+++ 44962 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-6551 +++$+++ 44963 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But the objectives of sentencing are not what's involved in this case.
05-6551 +++$+++ 44964 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. And I -- whether or not the objectives of sentencing are involved is not the critical point of the constitutionality of this system. As far as California is concerned, what is important is that, first of all, the fact that the preponderance of the evidence requirement is essentially the same as what's involved in making discretionary findings within a range in the Federal system. And we're talking about the findings within a range.
05-6551 +++$+++ 44965 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would you want us to hold that, you know, that we uphold the system here in an opinion that says what California's sentencing judges may do under California law, as you've described it to us, is that they -- they may exceed the middle range whenever they think that that is a better result, whenever they think that that's reasonable?
05-6551 +++$+++ 44966 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-6551 +++$+++ 44967 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you think California would be happy with that?
05-6551 +++$+++ 44968 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Reasonableness is the touchstone of the constraint imposed upon the trial courts in selecting among the three terms, and that would be a perfectly --
05-6551 +++$+++ 44969 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, including reasonable disagreement with the level of severity that the legislature has provided in the middle term. I mean, other legislatures may have provided higher severity and the judge says, I simply disagree with the California legislature. And it's a reasonable disagreement, because some other legislature might have done what I do.
05-6551 +++$+++ 44970 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor.
05-6551 +++$+++ 44971 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That isn't reasonable? Why isn't it reasonable?
05-6551 +++$+++ 44972 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Reasonableness has to be tied to the policy considerations that underlie the --
05-6551 +++$+++ 44973 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He ties it to that. He says, I just disagree with the California legislature as to whether this is enough to prevent the defendant from committing this kind of a crime. And look -- and he cites another state which provides a much higher sentence for the same crime. Can that possibly be unreasonable?
05-6551 +++$+++ 44974 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. I believe that under the California --
05-6551 +++$+++ 44975 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then you don't mean reasonableness. You mean something else.
05-6551 +++$+++ 44976 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask you this question? Excluding capital cases, in your view -- anecdotally, if it has to be that -- what percentage of cases that go to juries, that go to jury trial, result in bifurcated proceedings for sentencing purposes? 10 percent?
05-6551 +++$+++ 44977 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would say probably a rough guess would be around 10 percent. That's -- we're dealing with --
05-6551 +++$+++ 44978 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ On that question, may I ask -- on that subject, may I ask you this question: Have you read the brief filed by the National Association -- the amicus brief by the National Association of Defense Lawyers, which has a long discussion of the practical consequences in other states and in California?
05-6551 +++$+++ 44979 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-6551 +++$+++ 44980 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And which I find, to be honest to you, rather persuasive on the fact it's not such a big deal as we thought it might be. And I'd like you to have an opportunity to tell me whether there's something in that brief that is not accurate.
05-6551 +++$+++ 44981 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, it would certainly be a big deal to California. But more importantly, if this Court were to say that a reasonableness constraint reinvokes the Sixth Amendment, you would be basically throwing into doubt the way Booker has reformed the Federal system as well, because --
05-6551 +++$+++ 44982 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They say, if I remember it correctly, that if the impact in a four day trial would normally be an extra hour for the jury, that that's about the burden on the system. And of course, 90 some percent of your cases are pleaded out by guilty, so it's not the major thing that we originally thought it might be. Do you think, just across the board, are they fairly accurate in their description of what happens in other states as far as you're advised?
05-6551 +++$+++ 44983 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As far as the other states go, yes, Your Honor. And I believe the impact on California would be a requirement of a secondary trial after the main trial. But it would also impose a burden of trying to identify whatever aggravating circumstances or whatever relevant considerations have to take place in this particular case, which can be a multitude of things. In California law, essentially anything can -- anything can justify an upper term sentence. It's only when there's absolutely nothing, not a scintilla of justification, that an upper term becomes unreasonable and therefore reversed.
05-6551 +++$+++ 44984 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How many cases would have to be resentenced if we were to reverse in this case?
05-6551 +++$+++ 44985 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's my understanding that under -- currently in California about 20 percent of the prison population has an upper term. So I don't know how many cases there are on a year-by-year basis, or since Blakely or since Apprendi, but probably in the thousands, possibly.
05-6551 +++$+++ 44986 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes. You had 200,000 incarcerated when I last looked.
05-6551 +++$+++ 44987 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. And the -- once again, the important aspect, what's -- the key aspect is whether or not a term is legally available, and whether or not there's a constraint that's imposed that takes away that legal availability as a threshold matter, rather than a reasonableness review requirement. California has consistently construed 1170(b) as imposing a reasonableness requirement. This Court in Booker said that a reasonableness requirement does not limit the availability of those upper terms.
05-6551 +++$+++ 44988 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you know of any case in which a California trial judge has gone beyond the middle range not on the basis of a fact that that judge has found, but rather on the basis of some general policy he thinks that the punishment should be greater, something along the lines of what Justice Breyer suggested?
05-6551 +++$+++ 44989 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, I'm not aware of it.
05-6551 +++$+++ 44990 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not either, and I would be astounded if any trial judge would read these statutes and court rules that way.
05-6551 +++$+++ 44991 +++$+++ TRUE +++$+++ MR. LAURENCE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Once again, Your Honor, that is not the critical component of why this system is constitutional. And that's not what we are advancing in our briefs. It's not the position that I'm arguing here, that that is what would save California's system. What saves California's system is that the only constraint imposed is a reasonableness constraint, and that reasonableness constraint, 1170(b), has been interpreted over time as simply imposing the abuse of discretion standard on the court, and that has been applied to all three terms. The middle term is also reviewed for an abuse of discretion, as is the lower term. And what is important to note is, even though the middle term -- the only reason the middle term has been given the label "presumptive" is because the court doesn't have to expressly articulate its reasons for selecting it. But it still has to do a balancing to make a determination as to what's reasonable, including the middle term.
05-6551 +++$+++ 44992 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Laurence. Mr. Gold, you have four minutes remaining.
05-6551 +++$+++ 44994 +++$+++ FALSE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. I want to respond to three items. The first is, Mr. Chief Justice, you were asking about what would be the effect in California on those that have already been sentenced. The only information I have was what was contained in Black, that only 13 to 17 percent of cases are sentenced in the upper range. But what the Court should also consider is that most -- in most cases, the difference between the middle term and upper term is really only a year. In this case, it is four years, which is somewhat unusual. So in those cases, a lot of the people will have already served their prison sentences by the time that they would be able to benefit from any result in this case. I also wanted to echo what Justice Kennedy, I believe, was saying. California Rules of Court, Rule 4.410 is just general objectives of sentencing. These are not aggravating factors. You can't take into account achieving uniformity of sentencing, securing restitution for the victims, these aren't aggravating factors that the judge considers.
05-6551 +++$+++ 44995 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, Rule 4.410(b) says that the sentencing judge should be guided by the criteria in these rules.
05-6551 +++$+++ 44996 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In sentencing, but I don't believe as far as finding them as aggravating factors, these are not facts that judges in California use to impose upper-term sentences.
05-6551 +++$+++ 44997 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but a reading of the rule indicates under (b), as the Chief Justice points out, that the judge could take into account these policy objectives.
05-6551 +++$+++ 44998 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, all I can tell you is that I've never seen a judge take these into account as an aggravating factor. And I would be surprised, under the case law, if these have been ever upheld as valid aggravating factors.
05-6551 +++$+++ 44999 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I think it is true that it doesn't seem to be involved in this case. In this case, we're under 4.420.
05-6551 +++$+++ 45000 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly, yes. Certainly, not in this case.
05-6551 +++$+++ 45001 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We have to conclude that the California Supreme Court has misread California law to agree with you, don't we?
05-6551 +++$+++ 45002 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
05-6551 +++$+++ 45003 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, I see 1170(b). And I understand your argument, but when I read the California Supreme Court opinion in Black, it says, well, this is what it means. It doesn't seem to be what it means, but they get to interpret it, don't they?
05-6551 +++$+++ 45004 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They do get to interpret how their statutes operate, Your Honor, but I believe that they are consistent in saying that this is a mandatory system. In every one of their quotes, they talk about either a judge must impose the middle term unless there are aggravating factors, or they talk about the requirement -- I was going to mention Justice Breyer's quote from Black. And even in that one, they say because an aggravating factor under California law may include any factor that the judge reasonably deems to be relevant, and then say the Determinate Sentencing Law's requirement that an upper-term sentence be imposed only if an aggravating factor exists. They always talk about the requirement that this aggravating factor must exist.
05-6551 +++$+++ 45005 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So it is comparable to Booker. And then in the preceding four paragraphs, they correctly describe Booker?
05-6551 +++$+++ 45006 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. And we have no doubt that they are trying to fit the Determinate Sentence Law within Booker, but Booker is about making -- the magic word, as it were, is advisory versus mandatory, not reasonableness. So yes, the California system is reasonable. And that's what the California Supreme Court is talking about --
05-6551 +++$+++ 45007 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Under any guideline system, whether it's mandatory or advisory, once -- if you have a mandatory system or an advisory system with appellate review, once the appellate review function has been performed, will it not be the case that trial judges will not have unfettered discretion, will have very limited discretion in choosing, making these sentencing policy determinations? That's the whole purpose of a guidelines system. That the individual trial judges don't get to decide, you know, how much deterrence they think is necessary, or how severe they think an individual crime is, that there's supposed to be some kind of uniformity.
05-6551 +++$+++ 45008 +++$+++ TRUE +++$+++ MR. GOLD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Alito, there is discretion in our system. But it is the discretion to impose an upper-term after finding aggravating factors. And I think that in an indeterminate system, as you were discussing earlier, I think that that -- I'm not sure. It depends what the system is, as far as what the reasonableness constraints are.
05-6551 +++$+++ 45009 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Gold. The case is submitted.
05-669 +++$+++ 45013 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument in BP America Production Company against the Secretary. Mr. Lamken.
05-669 +++$+++ 45015 +++$+++ FALSE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Justice Stevens, and may it please the Court: Section 2415(a) established a limitations period for every action for money damages by the Government which is founded on any contract. That provision, by its terms, applies to every contract action, every adversary adjudication seeking monetary compensation for breach, whether pursued before a court or an agency. The contention that every action encompasses only civil actions or judicial actions is incorrect for three reasons. First, it is inconsistent with the broad language that Congress used. It is inconsistent with the statutory structure, in that it renders another provision, the exception for administrative offset, totally superfluous. It also creates an irrationality in the hierarchy of the Government's claims. Finally, it robs Section 2415(a) of its intended effect. Turning to the text, Congress Official and agencies regularly use the term "action" to refer to adversary adjudications before administrative agencies and before the judiciary. The term --
05-669 +++$+++ 45016 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What --
05-669 +++$+++ 45017 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- denotes --
05-669 +++$+++ 45018 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask you, on that point -- I understand what you're saying, and I've looked at your authority, but, right in the provision itself, there is a verbal distinction made between actions for money damages, and what, at the end of the provision, they refer to as "administrative proceedings" in providing for the 1-year supplementary rule. Doesn't the statute, in effect, say, "We don't mean, by 'action,' what we would possibly -- what possibly might be included as an administrative proceeding"? If they had wanted an administrative proceeding to be a subset of the actions for money damages, wouldn't it have been sensible for Congress to say in -- to refer, instead of to "administrative proceedings," to "administrative actions"?
05-669 +++$+++ 45019 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in fact, the -- it refers to "administrative proceedings required by contract or law." And that clause applies in the particular circumstance where a law or a contract requires some sort of administrative proceeding as a condition precedent to the action for money damages. So, if you can bring your Official money-damages action without any prior administrative proceeding, regardless of where you bring --
05-669 +++$+++ 45020 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I think your point has to be that there are administrative proceedings that are not actions.
05-669 +++$+++ 45021 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is absolutely correct. Nonadversarial administrative proceedings would, themselves, not be actions.
05-669 +++$+++ 45022 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right.
05-669 +++$+++ 45023 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And they also wouldn't be money-damages actions. So, the distinction the statute draws is not between money-damages actions in court and money-damages actions before agencies; it's before money-damages actions, wherever brought, and the administrative proceedings that have to be brought as a condition precedent.
05-669 +++$+++ 45024 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You contend that what commenced the action here was the order demanding payment.
05-669 +++$+++ 45025 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. That is the --
05-669 +++$+++ 45026 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's a very weird commencement of an action, where what then follows is what is referred to as an "appeal," within the agency.
05-669 +++$+++ 45027 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For historical reasons, the denominations are quite strange, but for Grisa, quoted -- on subsections 1702 and 1724, quoted on pages 5 and 6 of Official our reply brief, specifically state that the order to pay commences the proceedings. And so, since that is the --
05-669 +++$+++ 45028 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which says that?
05-669 +++$+++ 45029 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's on page 5-6 of our brief. It's Section 1702 of our --
05-669 +++$+++ 45030 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What page of your brief?
05-669 +++$+++ 45031 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ 5 and 6 of the reply brief.
05-669 +++$+++ 45032 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Of the reply.
05-669 +++$+++ 45033 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. And it's 13 U.S.C. 1724, and it talks -- or it defines the "demand" as the order to pay. And then, the definitional provisions, in turn -- when they're talking about what commences the action, it says that the order to pay "commences" the action. And so --
05-669 +++$+++ 45034 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm not finding it. Where is it, again?
05-669 +++$+++ 45035 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Page 6 of the reply, Your Honor, very top. The citation says "13 U.S.C. 1724(b), emphasis added." It defines "demand" to include an order to pay issued by the Secretary. And, in the next line down, we say, "For Grisa thus recognizes that the so-call order to pay, far from concluding the action, in fact, commences it," because the statute of limitations prepared -- uses the word "commenced" to describe what the action -- the order to pay does. Official
05-669 +++$+++ 45036 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why is -- why doesn't it make much more sense -- as I understand the proceeding, this order doesn't come out of the blue. As required, there has to be a letter to the -- to the payee saying, "We think -- we think you owe so much money." He is allowed to respond, right?
05-669 +++$+++ 45037 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That --
05-669 +++$+++ 45038 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And then, after considering the response, the order issues. Now, I would consider that a -- you know, an -- that sounds to me like a complaint and an opportunity to respond to it. And then, finally, the first decision of the agency, which is then appealed -- and CFR provides for an -- what he calls an appeal. And it seems to me the final opinion of the agency is the opinion on the appeal.
05-669 +++$+++ 45039 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In fact, that process, which isn't even mentioned in the regulations, doesn't have any legal operative effect. It's more like a demand letter. If the lessee doesn't respond to the letter, he doesn't waive any of his rights. If the Government fails to include a claim in its demand letter, in the -- well, in the audit letter -- it doesn't waive any of its rights. The --
05-669 +++$+++ 45040 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it doesn't --
05-669 +++$+++ 45041 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- first document --
05-669 +++$+++ 45042 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- waive it, but it can't issue Official the order without having issued the letter first, giving --
05-669 +++$+++ 45043 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
05-669 +++$+++ 45044 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- giving the party an opportunity to say why this amount isn't owed.
05-669 +++$+++ 45045 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in fact, there's nothing in the regulations -- and I think the Solicitor General would concede -- that actually requires this informal process. It happens to be typically done. And the SG uses the word "typically" in the brief. But there's nothing that requires it. And if you don't respond, there are no consequences to failure to respond.
05-669 +++$+++ 45046 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is there anything that requires the order?
05-669 +++$+++ 45047 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- anything that requires the Secretary to proceed by order?
05-669 +++$+++ 45048 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
05-669 +++$+++ 45049 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is the Secretary's traditional way of doing things --
05-669 +++$+++ 45050 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well --
05-669 +++$+++ 45051 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- yes, but --
05-669 +++$+++ 45052 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, you could say the same for the other.
05-669 +++$+++ 45053 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, but it -- but there is no liability if the order fails to issue. The order, if it were the first salvo, you still would be required to Official respond. And so, your failure to respond is very much a default. The failure to respond to the letter, the audit letter, has no legal operative effect --
05-669 +++$+++ 45054 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You don't -- you don't -- but you don't respond to the order; you take an appeal from the order.
05-669 +++$+++ 45055 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. You file a --
05-669 +++$+++ 45056 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It seems to me crazy to call that order a complaint. I -- even if I grant your other argument, that an administrative proceeding can be commenced by a complaint -- or that the term "complaint" can apply to administrative proceedings, I don't think that what you've hung your hat on here -- namely, the order -- seems to me to fit that description.
05-669 +++$+++ 45057 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia, it is the first document, which is recognized in the regulations, which provides the lessor of the notice of claims against it, the first one that's required by the regulations in order to commence the proceedings.
05-669 +++$+++ 45058 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You mean --
05-669 +++$+++ 45059 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's recognized --
05-669 +++$+++ 45060 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the regulations don't refer to the initial letter?
05-669 +++$+++ 45061 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. They don't -- the regulations don't require this informal process. It's typically done Official --
05-669 +++$+++ 45062 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, they literally could start, absolutely out of the blue, by issuing the order?
05-669 +++$+++ 45063 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's correct. That is the way that it could be done. There's an informal process that's typically followed; but you could ignore it, and there's no legal operative effect. So, that --
05-669 +++$+++ 45064 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I doubt whether --
05-669 +++$+++ 45065 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- informal process --
05-669 +++$+++ 45066 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that would --
05-669 +++$+++ 45067 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- can't be a complaint.
05-669 +++$+++ 45068 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I doubt whether that would conform with the Administrative Procedure Act. I mean, either -- even at the first level of agency decision --
05-669 +++$+++ 45069 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-669 +++$+++ 45070 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- it seems to me you have to give the individual an opportunity to reply.
05-669 +++$+++ 45071 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that is perhaps why the agency tries this -- to do the informal process. But, in fact, it does not have legal operative effect. There -- you could completely ignore that initial demand letter, and say, "Sorry, Agency, I'm not responding." The agency then files its order. And that's the first time you must register your defenses, upon failure or forfeiture --
05-669 +++$+++ 45072 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Of course you can ignore it. Official That doesn't prove anything. You could ignore an agency complaint, too --
05-669 +++$+++ 45073 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-669 +++$+++ 45074 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- I mean, a formal complaint, in which case you'll be found liable. What does --
05-669 +++$+++ 45075 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's the --
05-669 +++$+++ 45076 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the fact that you don't have to respond have to do with anything?
05-669 +++$+++ 45077 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The legal consequences. It's exactly right, Justice Scalia. If you don't respond to the demand letter, there are no legal consequences. If you don't respond to the letter by filing what's called an "appeal," you lose. And so, it's just like a complaint; you default if you fail to raise your defenses at that point. In addition, Section 2415 --
05-669 +++$+++ 45078 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And it's also, I assume, true that the demand letter would not toll a statute.
05-669 +++$+++ 45079 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, we don't believe a demand letter would toll a statute, because it's not required by --
05-669 +++$+++ 45080 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you --
05-669 +++$+++ 45081 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- by law.
05-669 +++$+++ 45082 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- you'd win in this case even if it did. I don't think that the difference between the initial letter giving you an opportunity to reply, and the Official -- what you call the "complaint," the order -- that time period doesn't put you out of -- out of the permissible period.
05-669 +++$+++ 45083 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, I certainly hope --
05-669 +++$+++ 45084 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right.
05-669 +++$+++ 45085 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- hope not.
05-669 +++$+++ 45086 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
05-669 +++$+++ 45087 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, in fact, Section 2415(f), which is on page 4 and 5 of the appendix to our brief, makes it clear that whether something is denominated a complaint or not does not determine whether or not it's covered by the limitations period. 2415(f) is an exception for counterclaims and offsets by the Government where a private party brings an action against the Government. But counterclaims and offsets typically aren't brought by complaint; they're brought in the answer, they're submitted in the answer. Therefore, whether it's denominated an "order," an "answer," or something else, doesn't control whether or not 2415 applies. 2415 applies to any action for money damages founded on a contract, however you might denominate the initial filing which commences the proceedings. In --
05-669 +++$+++ 45088 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Lamken, the point has been made that there are many indications that what Congress had in mind was ordinary civil action in a court. Official In addition to finding this provision solely in title 28, the judiciary code, and not in title 5, there's also, if you read the following provision, 2416, time for commencing actions brought by the United States. And then it tells us the tolling periods. And, in doing that, it refers twice to the "defendant," which is a term that's used in civil proceedings, not administrative proceedings.
05-669 +++$+++ 45089 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, starting at 28 U.S.C., why it's there, it, in fact, applies both to administrative agency actions and actions in courts. And sometimes in 28 U.S.C. there are provisions that apply to both. The Federal Tort Claims Act, for example, is in 28 U.S.C., and it has a provision for administrative adjustment of claims. People must file their claims before an agency first, and then the agency can do administrative adjustment. That's entirely separate from the attorney general's ability to compromise the claim once it's filed in court. Section -- title 5 also contains things that apply to courts and agencies -- the right to judicial review of agency actions, the waiver of immunity that's necessary for those -- in addition to standards that govern judicial review of agency actions. Those were all in title 5, but they actually apply to courts. These --
05-669 +++$+++ 45090 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, 2415(a), (i), we -- you, you cannot possibly say that that only applies to judicial Official actions, can you?
05-669 +++$+++ 45091 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, no. That's --
05-669 +++$+++ 45092 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
05-669 +++$+++ 45093 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- actually completely --
05-669 +++$+++ 45094 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that's in --
05-669 +++$+++ 45095 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- superfluous.
05-669 +++$+++ 45096 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- and that's in title 28.
05-669 +++$+++ 45097 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that's in -- yes, that's in title 28, as well. And with respect to the term "defendants," Justice Ginsburg, Congress has often used the term "defendants" even in the context of administrative actions. The Stockyard and Packers Act of 1921 -- it's in 7 U.S.C. 210 -- actually talks about a complaint against a defendant for damages, all adjudicated before the Secretary of Agriculture, and that was 85 years ago. It seems a little late in the day now to debate whether one can be a defendant, the person who defends before an agency, as well as the defendant --
05-669 +++$+++ 45098 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's not the typical term used in agency proceedings to designate the responding party.
05-669 +++$+++ 45099 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, you can talk about the "responding party," or the "defendant," but the term "defendant" is sufficiently broad to include one who Official defends or denies, and that would be a term -- and it's been used in the past, as long as 85 years ago -- to discuss the person who might be liable for damages in --
05-669 +++$+++ 45100 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the content --
05-669 +++$+++ 45101 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- an adversary --
05-669 +++$+++ 45102 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the content of the tolling provision, as well, seems geared -- seems geared to a civil lawsuit. It talks about a person being outside the United States; therefore, they wouldn't be amenable to service of process.
05-669 +++$+++ 45103 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's certainly right. These are all things that would apply, we would expect, both to a civil action in court and an administrative-agency action, as well. They may work better for one or the other in different particular circumstances, but they are all sufficiently broad that they can be used in both circumstances. And the one the Government, in the administrative context, would be most interested in would be subsection C. When the Government just doesn't know the facts, or the Government reasonably couldn't know the facts, it gets an exception, just tolling, until it reasonably could have known of the fact. And that's just as applicable in an action before an agency as it would be in an action before a court. In addition, the Government's contrary Official construction renders an entire provision superfluous. And that is the one that Justice Scalia mentioned, Section 2415(i), which is an exception for administrative offsets. That exception for administrative offsets would do no work at all if --
05-669 +++$+++ 45104 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That wasn't part of the original statute, was it?
05-669 +++$+++ 45105 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, that was added about 16 years later, Your Honor. And it was added, but it clarifies the scope of the statute. And, as this Court admitted in -- pointed out in cases like Fausto and LaFranca, the later amendment to a statute can clarify its meaning; and, indeed, statutes are ordinarily read, once amended, as if they existed in their amended form from the offset.
05-669 +++$+++ 45106 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought that (i) was added because it's -- for a very specific reason, that there was a debate between the Department of Justice and -- I forgot the other agency --
05-669 +++$+++ 45107 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Comptroller, Your Honor.
05-669 +++$+++ 45108 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
05-669 +++$+++ 45109 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- yes -- about whether an offset would be subject to the time limit.
05-669 +++$+++ 45110 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right. And Congress resolved that debate by providing an exception for administrative offsets, and no other exception for any -- Official
05-669 +++$+++ 45111 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What --
05-669 +++$+++ 45112 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- sort of administrative proceeding. And that raises the strong inference that, in fact, this applies to administrative proceedings, and it simply doesn't apply to administrative offsets, because they're an exception.
05-669 +++$+++ 45113 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They could have said -- if the other interpretation of 2415(a), as not applying to administrative proceedings, were correct, they could have said the provisions of this section do not apply to administrative proceedings --
05-669 +++$+++ 45114 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's --
05-669 +++$+++ 45115 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- which would have -- which would have handled the offset --
05-669 +++$+++ 45116 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. It would have --
05-669 +++$+++ 45117 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- but would have been well beyond the offset. And the fact --
05-669 +++$+++ 45118 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right.
05-669 +++$+++ 45119 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that they only focus on the offset certainly suggests that when you're not talking about offset, it does apply to administrative proceedings.
05-669 +++$+++ 45120 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I could not have said it better, and I will not attempt to. In fact, in addition, it raises another anomaly in the statute, the Government's contrary construction. And that is, it creates sort of an Official irrationality in the hierarchy of claims for the Government. Offensive judicial actions to extract money from private individuals must be brought within 6 years. Administrative offsets for the Government to try and avoid paying money, those must be brought within 10 years, under the administrative offset provision that was enacted together with the exception in (i). However, offensive administrative actions to extract money may be brought in perpetuity, forever. It simply strains credulity to believe that Congress, at the same time it was saying the Government has only 10 years to assert administrative offsets to avoid paying money, instead intended administrative agencies to be able to extract money on that very same claim --
05-669 +++$+++ 45121 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I can believe that they do --
05-669 +++$+++ 45122 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- in perpetuity.
05-669 +++$+++ 45123 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- I can -- I can believe that they do that. [Laughter.]
05-669 +++$+++ 45124 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But --
05-669 +++$+++ 45125 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice --
05-669 +++$+++ 45126 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ By mistake. But I would not assume a mistake unless it's very clear.
05-669 +++$+++ 45127 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's exactly right, Justice Scalia. And that's, again, going back to Fausto, Official where there is a sensible hierarchy of claims, or a sensible hierarchy of preferences. The Court doesn't ordinarily presume that Congress put in a structure that doesn't respect that ordinary hierarchy. And the Government's construction here is inconsistent with the ordinary hierarchy which allows the Government to avoid making payment on more favorable terms; then the Government gets to go in and forcibly extract money from private individuals. Finally, the Government's construction also undermines the intended effect of the statute. The effect of statute -- the purpose of statutes of limitations -- and this one, in particular -- is to provide repose -- to allow the individual to know that he will no longer confront Government claims, to dispose of his documents, and also to encourage the Government to be diligent in pursuing its claims. None of those purposes are achieved, all of those purposes are defeated, if -- once the statute of limitations period expires --
05-669 +++$+++ 45128 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Lamken --
05-669 +++$+++ 45129 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-669 +++$+++ 45130 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- could we go back to Section (i) for a second more? Is it also possible to say that there was this disagreement between the Department of Justice and the Comptroller General, and Congress decided Official that the Comptroller General was right? And, if that's true, should we not accept the Comptroller General's reading of the entire statute?
05-669 +++$+++ 45131 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if Congress had decided the Comptroller General is right, and had done that in subsection (i), it would have written subsection (i) the way Justice Scalia proposed, which is to say this doesn't apply to administrative claims at all. What it did is, it said, "Ooh, this appears to apply to administrative claims and the Comptroller thinks these administrative offsets are important, so we will give a special statute of limitations period in 31 U.S.C. for those, and exempt them from the more general statute of limitations period in section 28 U.S.C. 2415." So, I don't believe that it should be read that way. Is it frivolous to suggest that that's the reading? No, the Government --
05-669 +++$+++ 45132 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does the --
05-669 +++$+++ 45133 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- got it's --
05-669 +++$+++ 45134 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- legislative history tell us how detailed the congressional examination of the particular issue was?
05-669 +++$+++ 45135 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, indeed, the legislative history mentions -- and there is a battle of letters between --
05-669 +++$+++ 45136 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's about all -- Official
05-669 +++$+++ 45137 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- the Office of Legal Counsel and the Comptroller on this issue. And Congress actually stepped into the fray and created an exception. But it created a limited exception --
05-669 +++$+++ 45138 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
05-669 +++$+++ 45139 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- an exception that applies only to one context, and that's administrative offsets. And that certainly raises a very strong inference that, where there isn't such an exception, the statute applies to administrative proceedings, more generally.
05-669 +++$+++ 45140 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't the most likely answer that they just -- they saw a small problem, and they rendered a decision on the small problem, and they didn't think about it any further than that?
05-669 +++$+++ 45141 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I have a hard time psychoanalyzing Congress, because it's sort of a corporate body, and I can't tell what Member of Member of Congress is saying what. But when the Court of these statutes, it generally reads them -- and it, in fact, avoids, whenever possible, superfluity. And if this provision applies to administrative proceedings from the outset, subsection (i) is superfluous, it's -- does no work whatsoever. And so, the -- when Congress amended this statute, it certainly clarified that, where there is no exception, this statute applies to actions filed in administrative proceedings. Official If there are no further questions, I'll reserve the remainder of my time for rebuttal.
05-669 +++$+++ 45142 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you. Mr. Joseffer.
05-669 +++$+++ 45144 +++$+++ FALSE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, and may it please the Court: The presumption is that the Government is not bound by a statute of limitations. And, when read as a whole, Section 2415(a) does not overcome that presumption, but instead makes clear that it applies only to suits in court. There are several reasons for that. First, the ordinary meanings of all of the key statutory terms refer to suits in court. Second, the statute expressly distinguishes between administrative proceedings and actions. Third the statute's located in the judicial code. Fourth, the committee reports, for those who are inclined to consider them, strongly support the statute's ordinary meaning. And, fifth, even if some administrative proceedings were governed by Section 2415(a), these would not, because they do not involve a complaint. Now, on the first of those points, the term "action" ordinarily refers to the pursuit of a right in court, which just is why, just 7 years ago, in West v. Official Gibson, every member of this Court agreed that the term "action" often refers only to suits in court, and not to administrative proceedings.
05-669 +++$+++ 45145 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It often does. It often does. But it does not, universally. And there are a number of instances cited by the Petitioner that -- where this Court and -- and statutes use the term in context where it clearly applies to administrative proceedings.
05-669 +++$+++ 45146 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-669 +++$+++ 45147 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, the question is, How -- you know, how absurd is it not to read it to apply to administrative proceedings in this case? And I find it pretty absurd, because you assume, if you read that it way, that there is effectively no statute of limitations whatever for the Government in these cases.
05-669 +++$+++ 45148 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the structure of the law here is that in those instances where Congress does authorize administrative recovery, it ordinarily provides a context-specific administrative limitations period, such as in the Contract Disputes Act, which governs almost all of the contract claims the Government can pursue administratively. Congress specifically enacted a 6-year limitations period for the submission of a claim to a contracting officer. In this unique context, however, Congress had Official very good reasons for not applying a limitations period until it prospectively enacted a partial one in 1996. The reason is that what Congress found here, in context of mineral leasing, based on the findings of an independent commission, was that the companies were historically on an honors system and had abused that by underpaying royalties of up to half a billion dollars annually. So, what Congress directed the agency to do is to audit all current and past lease accounts. One of the committee reports said to focus on old accounts, because this was a Congress that was not concerned with repose, but with getting some of those vast underpayments back from the companies. Now, when we fast-forward to 1996 --
05-669 +++$+++ 45149 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Wait.
05-669 +++$+++ 45150 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- at that point --
05-669 +++$+++ 45151 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Excuse me. And this was the Congress that enacted what?
05-669 +++$+++ 45152 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I -- agreed. What I'm referring to now is the Congress that enacted the mineral leasing provisions.
05-669 +++$+++ 45153 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Oh.
05-669 +++$+++ 45154 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- which is not a good --
05-669 +++$+++ 45155 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Which is not what we're talking about here.
05-669 +++$+++ 45156 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but -- well, we are, because Official the structure of the law here is that Section 2415(a), as we see it, governs court suits. And that works, because, when Congress authorizes administrative recovery, it almost always provides a specific -- context-specific administrative limitations period. Also, when Congress was telling the agency to focus on old accounts, it certainly wasn't thinking that a statute of limitations applied to that, and the agency, in that contemporary context, did not understand that there was a limitations period, either, because the orders that issued in the aftermath of the 1982 Act went back 7, 8, 9, sometimes more, years than that.
05-669 +++$+++ 45157 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ As late as 1978, the Justice Department didn't think that way, did it?
05-669 +++$+++ 45158 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, the Justice Department --
05-669 +++$+++ 45159 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The opinion of the Office of Legal Counsel, in '78, was exactly what the Petitioner here would urge.
05-669 +++$+++ 45160 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, the OLC opinion was limited, by both its terms and its reasoning, to administrative offsets, not to administrative adjudications. And if I could explain that, an administrative offset occurs in the situation -- this is what OLC was looking at -- where the Government, by statute, owed retirement benefits to a person, and, because it thought that person owed it money, Official what the Government did was to unilaterally reduce the retirement benefits. What OLC opined is that that is a -- nothing more than a prejudgment attachment. And OLC thought that if the Government is time-barred from obtaining a judgment, it should be time-barred from obtaining a prejudgment attachment. An administrative adjudication is significantly different, because it does provide an actual judgment. So, there are a couple of important points from that. First is that the dispute between OLC and the Comptroller General was limited by its terms to administrative offsets, although, Justice Stevens, the Comptroller General did opine beyond that, that the statute specifically applies only to suits in court. But the actual dispute was as to administrative offsets. So, when Congress addressed that specific dispute, as Justice Alito pointed out, it resolved only that specific dispute.
05-669 +++$+++ 45161 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But -- excuse me -- how could OLC possibly think that it applied to administrative offsets if it didn't apply to administrative proceedings? I mean, it was a contradiction of the proposition, which you're urging here, which is that this statute applies only to judicial proceedings. I mean, that's the point. Whether they spoke just to offsets or not, the position taken by the Justice Department was that this statute Official relates to administrative proceedings.
05-669 +++$+++ 45162 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, the position of OLC was limited to administrative offsets, and it did not -- the important thing is, OLC opinion did not interpret the statutory term "action," or, frankly, any other statutory term. Instead, it had a theory, which was probably wrong, that administrative offsets are unique because they are prejudgment attachment devices. That's the dispute that went to Congress, and that's the dispute that Congress actually resolved. And, in any event, going forward --
05-669 +++$+++ 45163 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, on that theory, then, there was -- there was no time issue with respect to the right to offset, then, in the OLC's position.
05-669 +++$+++ 45164 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, the OLC's view is that if the Government was time-barred from obtaining a judgment under Section 2415(a), then it would be time-barred from obtaining a prejudgment attachment.
05-669 +++$+++ 45165 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, but I thought your -- in answer to Justice Scalia, you said what was essential to the -- to OLC's position was that the offset is like a prejudgment attachment, and, in effect, it's an attachment without process. If that's the case, then timing should have nothing to do with it. Conversely, as Justice Scalia said, if timing does have something to do with it, timing Official presumably derives from this provision; this provision, therefore, must have been assumed to apply to administrative proceedings. So, either there's no time question with respect to the offsets, or, if there is a time question with respect to the offsets, it implies an OLC position that this provision applies to administrative proceedings.
05-669 +++$+++ 45166 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-669 +++$+++ 45167 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What's wrong with that logic?
05-669 +++$+++ 45168 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think what's wrong with the logic is what was wrong with the logic of the OLC opinion. We don't mean to defend the --
05-669 +++$+++ 45169 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You put me --
05-669 +++$+++ 45170 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- reasoning of the OLC opinion --
05-669 +++$+++ 45171 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- in good company, but --
05-669 +++$+++ 45172 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but what OLC really did say -- and Comptroller General and Congress promptly disagreed -- was that -- it didn't see a problem -- OLC didn't see a problem with procedurally imposing an administrative offset. What it saw a problem with was, it thought if an -- a judgment would be time-barred, then a prejudgment attachment should be time-barred, as well. I mean, that was the reasoning of the --
05-669 +++$+++ 45173 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, but if it was --
05-669 +++$+++ 45174 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- OLC opinion, which -- Official
05-669 +++$+++ 45175 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- a prejudgment --
05-669 +++$+++ 45176 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I agree was --
05-669 +++$+++ 45177 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It was a prejudgment attachment in aid of what could be accomplished administratively by, ultimately, an administrative judgment.
05-669 +++$+++ 45178 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, the -- I guess it was another point. The OLC opinion was -- arose in the context where a judgment could be obtained at all only in court.
05-669 +++$+++ 45179 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do we have --
05-669 +++$+++ 45180 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the context of --
05-669 +++$+++ 45181 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- that opinion, by the way? Both sides cited it. The -- is it -- it was unpublished.
05-669 +++$+++ 45182 +++$+++ TRUE +++$+++ MR JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was unpublished, and --
05-669 +++$+++ 45183 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Does anybody give it to us?
05-669 +++$+++ 45184 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Petitioners offered to lodge it with the Court --
05-669 +++$+++ 45185 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, I know they did offer, but nobody did it.
05-669 +++$+++ 45186 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'll -- we'll do it this afternoon.
05-669 +++$+++ 45187 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Good. I would like that.
05-669 +++$+++ 45188 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The point's just -- the OLC reasoning was admittedly somewhat odd, but that was the context in which Congress was responding to. And, going forward, it is not surplusage, because the issue still Official arises. If the Government could pursue its suit only in court, it would be time-barred from pursuing a suit in court. The question would then still arise, under the OLC opinion, unless it had been overruled, whether the Government could, nonetheless, obtain a prejudgment attachment, even though it cannot obtain judgment. That's all that Congress was looking at there. And, as this Court's recognized in cases like O'Gilvie and Vonn, when Congress amends a statue to resolve a specific dispute, oftentimes its amendments should be read as doing no more than that. We -- I agree, though, that terms -- to get back to the beginning of this discussion -- terms do not always have their ordinary meanings, but they presumptively do, especially when a statute must be strictly construed. And here, the context confirms that "action" does have its ordinary meaning, for several reasons. First, the ordinary meanings of the other key statutory terms, such as "right of action," "complaint," and "defendant," as Justice Ginsberg pointed out, all ordinarily refer to aspects of suits in court. A "right of action" is the right to bring a suit in court; a "defendant" is the person defending in court ordinarily; and a "complaint" is the document that initiates proceedings by stating a claim that's seeking relief in a Official civil action, which is a suit in court. Especially when those terms are used together, this Court recognized, in Unexcelled Chemical, that a reference to commencing a action by filing a complaint ordinarily refers to filing a suit in court, not a pleading before an administrative agency. The statute then goes on to expressly juxtapose an action against an administrative proceeding by saying that the time to file an action does not run until after the administrative proceedings have concluded, which certainly gives weight to the point that the action is -- an administrative proceeding is not an action.
05-669 +++$+++ 45189 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would the -- at the time that 4515 -- is that the --
05-669 +++$+++ 45190 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's 2415.
05-669 +++$+++ 45191 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ 20- -- I'm sorry. At the time that was enacted, were there any limitations in other statutes on the commencement of administrative proceedings?
05-669 +++$+++ 45192 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The ones that we have found were -- I'm not 100-percent sure, but the ones that we -- that we have found and cited in our brief do appear to be enacted after that time. I think the reason is that -- I mean, historically, administrative -- obviously, court suits have been around a lot longer than administrative adjudications. And, as Congress has authorized Official administrative adjudications, it's dealt with them on a case-by-case basis. And every time that it enacted a context-specific administrative adjudications period since 1966 -- in theory, it could have just done an across-the-board one for all agency adjudications, but, instead, it's chosen to deal with the context-specific; in part, because of the great variety of administrative procedure. I mean, as this case illustrates, a statute of limitations that governs a complaint in an action is just not going to work in a lot of administrative contexts. Here, there's no complaint. An "order" is a legally binding order. It doesn't seek relief, it imposes it. And unless it is both appealed and stayed pending appeal --
05-669 +++$+++ 45193 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How about the initial letter that, in the agency practice, precedes the order? I gather there's a letter to the --
05-669 +++$+++ 45194 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. There's -- there are basically three steps here. First, there's an audit. Then, if the audit reveals an apparent discrepancy, the agency or a State with delegate authority would send an issue letter requesting an explanation.
05-669 +++$+++ 45195 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ An issue letter.
05-669 +++$+++ 45196 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. It's called an "issue Official letter." And then would basically request an explanation of the apparent discrepancy. And then, if the agency then decides, after consideration of the audit and the issue letter, that it's appropriate to issue an order to pay it, will do so. It --
05-669 +++$+++ 45197 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Sounds to me like a complaint, a response --
05-669 +++$+++ 45198 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ An issue letter?
05-669 +++$+++ 45199 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- and an adjudication. I mean, you know --
05-669 +++$+++ 45200 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know whether you mean the audit --
05-669 +++$+++ 45201 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- "We think you owe this."
05-669 +++$+++ 45202 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- or the issue letter, but either way --
05-669 +++$+++ 45203 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The response comes back, "I don't think we owe it, and here's why." And then there's a ruling, "You do owe it." And that's the order. And then you can appeal it. And the CFR refers to it as an appeal.
05-669 +++$+++ 45204 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Well, there are a few things. First, on the -- with respect to the issue letter -- I mean, a complaint, functionally, is a document that initiates proceedings, stating it -- by stating the claim for relief, is seeking relief in a civil action. With Official respect to the second of those, an issue letter does not -- is not an allegation of wrongdoing, and it does not seek relief; it seeks information so that the agency can determine whether or not an apparent discrepancy raised by an audit is, in fact, a discrepancy. But there's --
05-669 +++$+++ 45205 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It does not --
05-669 +++$+++ 45206 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- no claim.
05-669 +++$+++ 45207 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- assert that there's a discrepancy?
05-669 +++$+++ 45208 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, what it -- what it asserts is that, "We've done an audit, and the audit has raised the following issues" -- that's why it's called an "issue letter" -- "Please provide an explanation." And it -- so, at that point, the agency has not decided yet whether it is, in fact, asserting a claim. It's not -- and it's not requesting relief, which a complaint definitely does. All it's requesting is information to help the agency assess the issue.
05-669 +++$+++ 45209 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do we have an example of issue letters anywhere? That's not in the materials either, is it? In the --
05-669 +++$+++ 45210 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, in fact, it's not even -- in fact, it's not even in the administrative record --
05-669 +++$+++ 45211 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right.
05-669 +++$+++ 45212 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- which is one of the reasons Official it's not in the issue --
05-669 +++$+++ 45213 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do we know --
05-669 +++$+++ 45214 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- record of the case --
05-669 +++$+++ 45215 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- what time lapse --
05-669 +++$+++ 45216 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- which also reflects that it's not a formal complaint, or it would be in the record.
05-669 +++$+++ 45217 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do we know, in this case, what time lapse there was between the issue letter and the order?
05-669 +++$+++ 45218 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think it was more than a year or two.
05-669 +++$+++ 45219 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But --
05-669 +++$+++ 45220 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And there was --
05-669 +++$+++ 45221 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- would that -- if you took the issue letter as the day, wouldn't all of the -- all of the Government's claims be timely? Because we're only talking about part of the claim, anyway, as I understand it. Is that correct?
05-669 +++$+++ 45222 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Here, I think if you ran --
05-669 +++$+++ 45223 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't think so. I tried to figure that out. I think --
05-669 +++$+++ 45224 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, if it ran from the --
05-669 +++$+++ 45225 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I think --
05-669 +++$+++ 45226 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- if it ran from the issue letter -- Official
05-669 +++$+++ 45227 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
05-669 +++$+++ 45228 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I think there would still be about a year in dispute here.
05-669 +++$+++ 45229 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There would be some in dispute.
05-669 +++$+++ 45230 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Going forward, if we --
05-669 +++$+++ 45231 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
05-669 +++$+++ 45232 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- if we agree with your position, the result will be that there will be a 7-year limitations period for oil and gas leases, but, for Indian claims and for minerals, there'll be no statute of limitations?
05-669 +++$+++ 45233 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, and the reason is that that's what Congress chose to do. I mean, in the prospective 1996 Act, it --
05-669 +++$+++ 45234 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Did they --
05-669 +++$+++ 45235 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- enacted the limitations --
05-669 +++$+++ 45236 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ When they enacted the 7-year limitation period, did they explain why they would treat those two situations so differently?
05-669 +++$+++ 45237 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, there's no explanation. As a practical matter, though, the prospective 1996 legislation governs a wide variety of aspects of the -- of the relationship between the Federal Government and the lessees. And, on balance, that package was pretty favorable to the oil companies, and I think Congress Official probably just decided not to -- to apply that to itself, but not to the Indians. Getting back to the order, though, it's not only that --
05-669 +++$+++ 45238 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How do you defend against a claim for, you know, stuff that went on a hundred years ago?
05-669 +++$+++ 45239 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, as a --
05-669 +++$+++ 45240 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I -- I'm really very reluctant to -- unless there is no possible other reading of the statute, to think that that's -- that that's what the law provides, that the Government can show up a hundred years later, and say, "Oh, by the way, you owe all this money."
05-669 +++$+++ 45241 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, first off, until --
05-669 +++$+++ 45242 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The company says "Gee, I -- you know, I don't have records from a hundred years ago."
05-669 +++$+++ 45243 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. Well, there are a few points, both legal and practical. On the legal, until 1966 that absolutely was the law, because historically no limitations period ever applies against the Government. And that's the reason for the strict construction canon, that the statute applies here only if it clearly applies, and thereby bars the Government from forcing the law in the public interest.
05-669 +++$+++ 45244 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Say that again. Until 1966, Official there were no statute of limitations against any Government suits?
05-669 +++$+++ 45245 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not contract. I mean, the historic rule is that the Government is not bound by statutes of limitations, because what it's doing is enforcing the law in the public interest. Now, in 1966, Congress enacted Section 2415(a) so that there would prospectively be a contract limitations period. But it's strictly construed, because of the historical backdrop and the importance of enforcing the law in the public interest. So that's why we do have a strict construction canon here. As a --
05-669 +++$+++ 45246 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ He didn't apply against the Government either.
05-669 +++$+++ 45247 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For the same reason laches is never applied against the Government.
05-669 +++$+++ 45248 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So, there's no limit at all, and you concede that that's the case. So, the Government could go back on these royalties as long as it likes.
05-669 +++$+++ 45249 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, as an abstract theoretical matter, the Government could reach back many, many decades. As a practical matter, though, that's never happened that we've gone back, say, 50 or 100 years and there are practical reasons for that. First is that the agency does not have enough resources to audit -- Official
05-669 +++$+++ 45250 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, there's a case involving the Oneida Indians, that went back quite a ways --
05-669 +++$+++ 45251 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true. It's -- I meant in the --
05-669 +++$+++ 45252 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- 200 years --
05-669 +++$+++ 45253 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- leasing context here.
05-669 +++$+++ 45254 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
05-669 +++$+++ 45255 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I didn't mean in the leasing context here. But in the leasing context, one -- there are a couple of important points. One is that the Government does not have enough resources to audit all of the current accounts in all of the years, which is one of the reasons that we need to be able to go back farther when we catch the violation. As a -- but as a result, the notion that we're going to pull auditing resources off of today to do a frolicking detour into 50 years ago, there's a reason that's never happened. In addition, the farther we try to go back, the greater the proof problems, because oftentimes only the companies have the information that shows what royalties they would owe, and if they lawfully destroy those records after 6 years, it makes it even harder for us to try to go back, because of proof problems.
05-669 +++$+++ 45256 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's another indication. Why would you allow them to destroy those records after 6 Official years if you -- if you thought -- if you thought that there was no statute of limitations to claims for these things? I mean, that's just another inconsistency that -- in the statutory scheme that's created.
05-669 +++$+++ 45257 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, no, the --
05-669 +++$+++ 45258 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You say, "You can destroy your records after 6 years." Well, why? It doesn't make any sense.
05-669 +++$+++ 45259 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, first, it's optional, not mandatory. If they want to keep them, they --
05-669 +++$+++ 45260 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
05-669 +++$+++ 45261 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- certainly can. But there's no -- and, as a practical matter -- I mean, because the Government bears the initial burden of going forward, if the company destroys the sources of proof, that's, on balance, going to be in its favor. But, in addition, there's not a strict congruence between the 6-year periods, because, first, the companies only have to keep records for 6 years, but, in some circumstances, the Secretary can require they be kept for longer. In addition, sometimes the statute of limitations, because of tolling, is much longer than 6 years; and so, the lawful destruction of records would still leave absence-of-proof issues in situations where the statute might, because of tolling, be much longer. So, there's not a strict Official congruence. There is also no indication that Congress enacted the 6-year records-retention policy because it was thinking about a 6-year limitations period. There's never been any linkage between the two. If I could briefly cover, then, also -- I mean, in addition to all the textual points, this is also located in the judicial code. And, although it's true that a couple stray provisions in the judicial code apply to administrative proceedings, they say that expressly. Every time the word "action" is used in the judicial code -- and Petitioners identified no examples -- every time the word "action" is used in the judicial code, it refers to a suit in court, and only a suit in court. When a provision of the judicial code applies to something else, it will say so. For example, 28 U.S. Code 2462, which is a statute of limitations for penalty proceedings, refers to an "action, suit, or proceeding." The Federal Tort Claims Act is very clear that what it's talking about is submitting something to an agency. So, if Congress was going to legislate against the backdrop of a strict construction canon with terms that ordinarily refer to suits in court, and put the provision in the judicial code, I mean, that just is a totally irrational way of expressing intent, especially Official clear -- especially a clear intent, when it's trying to govern administrative proceedings. The committee reports also strongly confirm that, because they not only say that the statute defines the time limitation for bringing an action in the U.S. courts, and not only use court terminology from front to back, they also say, like the statute, that they're aware of the administrative proceedings, but what they're saying is that the time to bring an action in the courts does not expire until after the conclusion of those proceedings. The committee has explained that the reason for that provision was the great number and variety of administrative proceedings. So, in other words, Congress was saying, "There's a great variety of administrative procedure. We're just not going to deal with that here. We're taking it off the table by saying this limitations period does not expire until a year after those administrative proceedings, whatever they might be, have expired." There's also some relevance in the fact that this legislation was proposed by the Justice Department as part of an overall package of reforms that would govern the civil litigation that the Department was handling in the courts. It was then referred to the Judiciary Committees, not to the House Government Reform Committees Official that might consider administrative procedure matters, and, as I mentioned before, was enacted as part of the judicial code. From start to finish, this legislation has never had anything to do with anything other than court suits, which is why Congress has expressly provided for context-specific administrative systems -- limitations periods -- which make sense in the context of the relevant administrative procedures.
05-669 +++$+++ 45262 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, except when you -- when you say "this legislation," you limit it to the body of 2415(a) and you leave out (i), which -- -- or I guess it's "one." Is it? Little -- or --
05-669 +++$+++ 45263 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's (i). It is (i).
05-669 +++$+++ 45264 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's (i). I mean, that clearly does apply to administrative proceedings. And I could understand the argument that Congress was just making things doubly clear -- okay? -- that (a) does not apply to administrative proceedings. I could understand that argument if the way (i) was written is, "The provisions of this section shall not apply to administrative proceedings." And then I would say, "You know, oh, well, that was always the case, and this is just making it clear." It doesn't say that. It says that -- the only Official administrative proceeding that they cut out of it is these offsets.
05-669 +++$+++ 45265 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the reason is that --
05-669 +++$+++ 45266 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And, you know, the normal rule is inclusio unius, exclusio alterius. I would -- it means, to me, when I read the statute as a whole -- and that's the way I read statutes, I don't ask whether this section was adopted this year, and the other section was adopted next year -- I don't do it bite by bite; you look at the whole text -- and, when you read all this stuff together, it seems to me that the import of (i) is that administrative proceedings, despite the fact that "action" is not a very common word to use for them, are covered.
05-669 +++$+++ 45267 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, it's -- there's no doubt the statute should be read as a whole. But, as this Court has explained in cases like the O'Gilvie and Vonn cases cited in our brief, when a court's trying to make sense of a statute read as a whole, oftentimes it will find that when Congress faces a specific dispute and amends a statute to resolve that specific dispute, that's all it resolves, and there's no reason to draw further negative inference, especially here, as the Court of Appeals pointed out, where a strict construction canon applies.
05-669 +++$+++ 45268 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's the best thing you have going for you, really, the strict construction canon. Official
05-669 +++$+++ 45269 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, because -- I mean, and it is an important point, that the statute applies only if it clearly applies by its terms. And it seems to me, the best that Petitioners can do is to say that some of the statutory terms, in isolation, are ambiguous. But that -- all that means, as I said, is that, under the strict construction canon, we would prevail. And even if the statute governs some administrative proceedings, but not others, it would not govern these, for the reason I gave earlier, which is that there's no complaint here. We talked, before, about the ways in which an order is not a complaint. It's another important point, though, that in order not only -- it is -- not only does it not begin the proceedings, it normally ends them, because appeals are only taken about a quarter of the time. And in some limited circumstances there's not even a right of appeal, if the Assistant Secretary issued the order. So --
05-669 +++$+++ 45270 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What if I didn't think the order was a complaint, but I thought the initial letter was a complaint? Would the Petitioner lose? Because they never made that argument.
05-669 +++$+++ 45271 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. It's -- the only argument they've ever made --
05-669 +++$+++ 45272 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
05-669 +++$+++ 45273 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- is that an "order" is a Official complaint. So, they haven't preserved the point.
05-669 +++$+++ 45274 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Because you're --
05-669 +++$+++ 45275 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
05-669 +++$+++ 45276 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- you made the point that the issue letter is just raising the issues, and it's not charging, as a complaint would allege, "You owe us," but this is, "Maybe you owe us."
05-669 +++$+++ 45277 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. There's no -- in an issue letter, there's no claim for relief, just a claim for the request for information, and there's no allegation of wrongdoing. So, it's just not a complaint in those ways. Also, it doesn't -- it's not really fair to say that it begins proceedings, because it comes between an audit and an order to pay. So it doesn't -- and plus, it's, of course, not filed in a civil action. And, in that respect, it doesn't satisfy any of the -- any of the elements of the -- of the ordinary definition of "complaints."
05-669 +++$+++ 45278 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are you saying that this doesn't apply to any administrative proceeding, or just those that are structured like this one, where you don't have anything that's labeled a "complaint"?
05-669 +++$+++ 45279 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We -- well, our primary submission is that it does not apply to any administrative proceedings, for the reason -- reasons I've given, that Official the ordinary meanings of all of the key statutory terms are for suits in court. A "complaint" itself is ordinarily defined to be --
05-669 +++$+++ 45280 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Even if you have an administrative proceeding which is called a "complaint"? You know, I mean -- and some are, I think.
05-669 +++$+++ 45281 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are -- there are some contexts in administrative procedure in which the word "complaint" is used.
05-669 +++$+++ 45282 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And that would not be covered by 2415(a).
05-669 +++$+++ 45283 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because it's not filed in an "action," which refers to a suit in court, following occurral of a right of action, which refers to the right to bring suit in court, in a statute which then juxtaposes the terms "action" against "administrative proceedings" --
05-669 +++$+++ 45284 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And let's assume all those terms are used in the agency procedure. They're talking about "action," "right of action." All those terms are used in the agency's procedural rules. Would they then come under this thing?
05-669 +++$+++ 45285 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
05-669 +++$+++ 45286 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I think you have to say no --
05-669 +++$+++ 45287 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-669 +++$+++ 45288 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- because, otherwise, it would Official be up to the agency, just by renaming their things, to come in or out, right?
05-669 +++$+++ 45289 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, and it's a much more --
05-669 +++$+++ 45290 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
05-669 +++$+++ 45291 +++$+++ TRUE +++$+++ MR. JOSEFFER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- fundamental point than that, too, is that what Congress was doing here was, when using these terms in their ordinary sense, to lay out an across-the-board rule that applies to suits in court. And, finally, one thing I should also emphasize is that what we have in this context is a comprehensive administrative scheme. Petitioners like to say that, "Well, we could just as easily be in court." There's a reason that no administrative royalty proceeding has ever been brought by the Government in a court. And that's, first, that Congress directed the agency to establish a comprehensive auditing and collection system, and then gave the agency administrative authority to enforce its administrative orders. The only way the agency could administer thousands of leases with something like $9 billion in royalties every year is to do this in an efficient administrative manner. Congress has not only authorized that, and ratified it, it has strengthened that scheme and told the agency, as I said, in 1982, to go back and look at old leases, precisely because Congress knew that is a Official standalone administrative scheme, and it's never provided the administrative limitations period for the standalone administrative scheme. If there are no more questions --
05-669 +++$+++ 45292 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Joseffer. Mr. Lamken, as I understand it, you have about 11 minutes left. You don't have to use them all. [Laughter.]
05-669 +++$+++ 45294 +++$+++ FALSE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I will endeavor not to. Thank you, Justice Stevens. I wanted to start with the ordinary meaning of the term "action." I was somewhat bemused by the Government's insistence that had -- the term "action" in West versus Gibson was construed -- it must mean an action before a court, and has that as its ordinary meaning. The Solicitor General's own position in West versus Gibson, on page 25 and -6 of its brief was, "Section 1981(a) does not, however, define the term 'action' as being limited to judicial proceedings. The statutory language, read in context, suggests that no such limitation was intended." Page 6 of the Government's reply, "The term 'action,' in Section 1981, can reasonably be construed as Official encompassing both administrative and judicial proceedings." The term "action" is a term that's used for adversary adjudicative proceedings, whether those are in court or before an agency. It is not limited to administrative agency proceedings, as the Government itself recognized in West versus Gibson. There are more general terms here. There's also "complaint," there's also "defendant." There's a number of those. But those general terms are also the terms of adversary adjudication. And Congress uses them, as far back as 1921, for adversary adjudications before agencies.
05-669 +++$+++ 45295 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Lamken, have you had any second thoughts about your position that it's the order, rather than the issue letter, that we should look at?
05-669 +++$+++ 45296 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in fact -- no. But the -- the answer is that we didn't -- no issue was engaged as to what was the functional equivalent of the complaint below. That raised -- was raised for the first time by the Solicitor General in its merits brief, saying, "No, no, no, there's actually some stuff that comes before the order." But if -- I would encourage the Court to look at the definitions in FOGRSFA, 1724 and 1702(A), which tell you what, under -- in Congress's view, commences the Official proceedings here. And, in Congress's view, what commences the proceedings, what triggers the new statute of limitations and stops it from running, is the order to pay, which Congress defines as a "demand."
05-669 +++$+++ 45297 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's true. That's true. But the provision you're arguing that you come under does talk about a complaint.
05-669 +++$+++ 45298 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's --
05-669 +++$+++ 45299 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that's what -- you know, that's what starts the 6 years running. And it's -- seems to me odd to call something a "complaint" which is, in fact, an order. They're not complaining about anything; they're saying, "Pay the money."
05-669 +++$+++ 45300 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Actually, Justice Scalia --
05-669 +++$+++ 45301 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You know, usually a complaint, you're -- you make your point, and say, "What do you say? What's your answer?"
05-669 +++$+++ 45302 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-669 +++$+++ 45303 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And this is an order. "You're -- boom, "Pay."
05-669 +++$+++ 45304 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It certainly has a hybrid quality, Justice Scalia. And it's not a hybrid quality that the industry particularly likes. But it is the first time that the Government asserts its state -- its claims as to what's wrong, in a binding legally operative document, Official where the failure to respond results in default. It has that function as complaint. It is the first salvo in official, formal administrative proceedings.
05-669 +++$+++ 45305 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's only true if you consider an appeal to be the response. And that's rather weird, that --
05-669 +++$+++ 45306 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is --
05-669 +++$+++ 45307 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- that the response to a complaint is an appeal.
05-669 +++$+++ 45308 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The language that has been used, and -- as a result of very odd historical anomalies and attempts to introduce a sense of due process to these proceedings over time -- is odd, and it is awkward. But it's clear that when Congress wrote the scope of this statute, it said it applies to "every action for money damages by the Government which is founded in contract." It doesn't say "actions that are begun by complaint." Now, the complaint is what Congress assumes will stop the provision from running. And there is always, in an adversary adjudication, some document that functions like a complaint, that provides the defendant the notice of what the claims are against it, and to which failure to respond will result in default. We believe that the most likely thing to be the complaint here is, the thing that provided us with notice, Official is that -- "Boys, you've got to respond; otherwise, you're in trouble" -- was the order to pay. And Congress came to that same conclusion when it enacted -- when it enacted FOGRSFA and established a 7-year statute of limitations provision. But if we lose 2 years of the claim, and only get 1 because it is the agency letter, in the Court's view, well, that's fine, but there's some document here that started these agency proceedings, and it is that document which is a complaint.
05-669 +++$+++ 45309 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Could you get us -- we're going to have supplemental material filed, the OLC opinion. Could you -- could you get us a -- you know, a sample of an agency letter? Or, if you can't, maybe the Government can?
05-669 +++$+++ 45310 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I -- that's true. And in terms of the OLC letter, we offered to lodge it in our brief. Unfortunately, by the Court's rules, we're not allowed to lodge it, unless the Court specifically requests it. And so, that's why it's not there. But we will get that to you, or the Government will get it to you, as soon as possible. The actual agency letter, in this case, isn't in the administrative record. And it turns out that we haven't been able to find it, and the Government hasn't been able to find it. And so, it's a letter. It's a Official demand letter, but it is a letter, and that -- the order to pay is actually the opening salvo in these proceedings. And again, what opens the proceedings in -- the Justice Department regulations and other regulations --
05-669 +++$+++ 45311 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I suggest --
05-669 +++$+++ 45312 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to try to define --
05-669 +++$+++ 45313 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- this, Mr. Lamken, that when the -- when the filing is made giving us the OLC opinion, you include a -- an example of such a letter?
05-669 +++$+++ 45314 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes. Of course.
05-669 +++$+++ 45315 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And so, we'll get a notion of what it looks like.
05-669 +++$+++ 45316 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. It may have to be from some other proceeding; it wouldn't necessarily be from this case.
05-669 +++$+++ 45317 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Your position is, this would apply to the universe of administrative proceedings. Now, this particular lease arrangement is taken care of by an express statute of limitations. So, what we're talking about, for the future -- what would change under your interpretation? Not gas leases, because -- there's a 7-year limitation for both administrative orders to pay and --
05-669 +++$+++ 45318 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-669 +++$+++ 45319 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- court actions. Official
05-669 +++$+++ 45320 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. It would be all leases on Indian lands. It would be all leases which involve minerals other than oil and gas, whether it be coal, gold, silver, anything like that. It would also be all claims before September -- all production before September of 1996. That introduces something of an oddity, if one accepts the Government's position. It would be that, for all claims going forward from September of 1996, the Government has 7 years, but, for the prior 200 years, those claims persist in perpetuity. When Section 2415(a) itself was enacted, Congress avoided precisely that result by deeming all prior claims to have accrued on the date the statute of limitations was enacted. And the very fact that Congress didn't do that here is evidence that Congress -- to the extent it has anything to do with it at all -- is evidence that Congress, in fact, understood that there already was a statute of limitations applicable. And, in fact --
05-669 +++$+++ 45321 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What --
05-669 +++$+++ 45322 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- it also --
05-669 +++$+++ 45323 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What other areas would we be messing up by finding for you? I mean, here, you know, if we don't find that this administrative action is covered by this statute of limitations, there's no statute of limitations. But there may -- there are other -- may be Official other areas covered by this text -- namely, a suit by the United States -- founded upon any contract expressly or implied in law or in fact, where there is some kind of a statute of limitations.
05-669 +++$+++ 45324 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. There are -- there are some contexts in which there already is a separate administrative regime which would have its own statute of limitations. The Contract Disputes Act, as the Government points out, is one of those.
05-669 +++$+++ 45325 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that would prevail over this --
05-669 +++$+++ 45326 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, because the --
05-669 +++$+++ 45327 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- because it's more --
05-669 +++$+++ 45328 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Contract Disputes --
05-669 +++$+++ 45329 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- specific.
05-669 +++$+++ 45330 +++$+++ TRUE +++$+++ MR. LAMKEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Act has an exception at the front and says "notwithstanding 2415." It's its own animal to itself. And there is a clause at the front of 2415 that says "except as otherwise provided by Congress." And so, Congress often takes exceptions. And when it modified the Mineral Leasing Act of 1996, that was an exception to the 2415 regime. So, Congress knows how to conduct specialized situations and take things outside of 2415 when it needs to. But it enacted Section 2415 as a catchall for all of those situations where Congress hadn't Official managed to anticipate the circumstances. And the Government's premise of the whole provision is that Congress botched it. Congress provided a catchall that catches judicial actions, but leaves the Government free, in perpetuity, to persist -- to proceed on precisely the same claims for precisely the same relief, plus interest. And, because interest is calculated at a relatively high rate, that makes those old claims much, much more valuable than the relatively more recent claims. And it seems implausible to think that Congress enacted a catchall limitations period with a loophole so large that it deprives the statute of limitations period of effect almost entirely. Finally, I'd like to say, one moment about the statute -- the canon of strict construction. And that is that it doesn't always require the court to narrow otherwise broad statutory language, particularly where doing so would have the effect of rendering another provision -- here, subsection (i) is superfluous -- introducing anomalies into the statutory structure and depriving the statute of its intended effect, as the Bowers case we cite in our reply brief on page 16 makes clear. And Bowers case was virtually on point. It was the case where the -- it was a statute of limitations that could have applied to administrative agency actions, Official or it could not have. And the Court declined to accept a narrowing construction proffered by the Government under statute of strict construction because it would have rendered one of the provisions -- one for consent proceedings -- superfluous, because it would have resulted in anomaly, and because it would have undermined the premise of repose which undergirded the statute of limitations in that case. Precisely the same things are true here. And, for those reasons, the Court should reach precisely the same result. If there are no further questions, thank you very much.
05-669 +++$+++ 45331 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Lamken. The case is taken -- is -- as submitted.
05-705 +++$+++ 45336 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument next in Global Crossing Telecommunications versus Metrophones Telecommunications. Mr. Fisher.
05-705 +++$+++ 45338 +++$+++ FALSE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: Complaints alleging violations of the FCC's pay phone compensation regulations allege just that, violations of regulations. The regulatory violations do not give rise to private cause of action under section 206 and 207 of the Communications Act. The proper point of departure in this case begins at section 276. There Congress directed the FCC to create a system guaranteeing pay phone providers compensation for the services that they provide to callers who make dial around calls. There can be little doubt that the FCC has ample authority to enforce the system it created administratively. But nothing in Section 276 or anywhere else in the Act contemplates that violations of the FCC's implementing regulations should give rise to a private cause of action for damages in Federal court. Official Accordingly, this Court should reverse the Ninth Circuit's decision allowing pay phone operators to bring through the back door the kinds of cases that Congress declined to allow through the front. There's nothing upsetting about reaching that result here. The Communications Act quite sensibly limits private damages actions in Federal court to those alleging violations of the Act itself. And claims that long distance providers -- I'm sorry -- claims that long distance providers have violated the pay phone compensation regulations require the parsing and the application of the extraordinarily complex and ever-changing FCC rules and regulations and orders.
05-705 +++$+++ 45339 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Fisher, may I ask you this question? In your view, did the regulations create a legally enforceable obligation?
05-705 +++$+++ 45340 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Stevens.
05-705 +++$+++ 45341 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And where may that obligation be enforced?
05-705 +++$+++ 45342 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our position is that can be fully enforced in the FCC. And in fact, the FCC is hearing complaints like this all the time.
05-705 +++$+++ 45343 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ By means of a private action before the FCC?
05-705 +++$+++ 45344 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, by means of an administrative Official action before the FCC.
05-705 +++$+++ 45345 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where the carrier -- where they would file a complaint saying you owe us X dollars, and the agency could order them to pay X dollars.
05-705 +++$+++ 45346 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. And if you look at the Sprint amicus brief at page 23, the brief cites several cases just like this one that the FCC has fully adjudicated and in some cases awarded damages.
05-705 +++$+++ 45347 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And is the obligation enforceable in State court?
05-705 +++$+++ 45348 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, we believe -- of course, this Court did not grant certiorari --
05-705 +++$+++ 45349 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I understand that. I'm curious to know what your view is.
05-705 +++$+++ 45350 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If this Court holds there is no private cause of action in Federal court, then it is not enforceable in state court either. Our position is that there is only an administrative remedy that's available.
05-705 +++$+++ 45351 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the administrative remedy that you just conceded is a counterpart to a private right of action, or isn't it? Would you get the same thing? I complained to the agency, and say, I didn't get -- the pay phone provider wasn't paid, and X under the commission's regulations was supposed to pay it. So I complained against X. Could I get before the FCC exactly Official what I could get in court, so that we're only talking about which form is proper, or is there a difference in the remedy?
05-705 +++$+++ 45352 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In terms of damages, we're talking about exactly the same thing, Justice Ginsburg. The only difference between being in Federal court as opposed to the agency is that if you're in Federal court, the Communications Act has a fee shifting provision. And we think that further underscores the Congress's scheme here, which is to reserve Federal court actions for serious violations of the Communications Act, and that's where fee shifting kicks in. Ordinary --
05-705 +++$+++ 45353 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And before the agency, you don't get counsel fees?
05-705 +++$+++ 45354 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
05-705 +++$+++ 45355 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Fisher, I realize you don't concede, in fact, quite to the contrary, you deny that the failure to pay the full rate is -- could be considered a practice here. But let's assume for the sake of argument that it is a practice within the meaning of the text. If the -- if the agency had explicitly said, what we are doing here in defining this practice as unlawful or unjust, is to define it as such within the meaning of, what is it, 201(b), so they make explicit reference to Official the statute and they say, we are fleshing out the statute, would your position be the same?
05-705 +++$+++ 45356 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's very much what the Commission is contending here Justice Souter.
05-705 +++$+++ 45357 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it wasn't textually as nice as that?
05-705 +++$+++ 45358 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-705 +++$+++ 45359 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But they have made it that, haven't they, in a later regulation? Haven't they said just that.
05-705 +++$+++ 45360 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In a later order, Justice Scalia.
05-705 +++$+++ 45361 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In a later order, yes.
05-705 +++$+++ 45362 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let's assume in the reg itself, they were that precise. Would your position be exactly the same?
05-705 +++$+++ 45363 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The result would be the same. And I think you're asking me to put aside for the moment whether the FCC was correct in saying it was a covered practice.
05-705 +++$+++ 45364 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Sure.
05-705 +++$+++ 45365 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And in terms of the FCC calling this unjust and unreasonable, the problem with that is that the only reason the FCC has ever given that this is unjust and unreasonable is because it violates its regulations. And if there's one thing we know from the Official structure of the Communications Act, it's that for something to be remedial in Federal court, in other words -- and if we know something violates 201, it is remediable.
05-705 +++$+++ 45366 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
05-705 +++$+++ 45367 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It has to be.
05-705 +++$+++ 45368 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You invite me to change the hypothetical, then, by jacking it up in this respect. The FCC gives the reason. And it says, the reason it's unjust and unreasonable is that the carriers are getting a free ride on the pay phones, et cetera. So they fill in the gap that you claim. They have a reason. Would your answer or your position still be the same?
05-705 +++$+++ 45369 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, because the reasoning the FCC would give simply would not be a permissible construction of the terms unjust and unreasonable in 201(b).
05-705 +++$+++ 45370 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are there any times under any circumstances that you can think of in which the FCC can adequately and validly define a practice as unjust and unreasonable within the meaning of the statute so that, in fact, in applying the statute, we would follow -- be bound to follow the regs?
05-705 +++$+++ 45371 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of course, in the vast majority. Let me give you some examples, and then I'll distinguish it Official from this case. The easiest example is rate of return regulations that the FCC can pronounce. So the FCC can say how much long distance companies are able to charge for certain services. Fleshing out the amount that they can charge so that they're not in effect gouging consumers is a regulation that this Court could look to, but --
05-705 +++$+++ 45372 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay. But why can't they pass a regulation that says don't gouge pay phone operators?
05-705 +++$+++ 45373 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that goes to the heart of this case, Justice Souter, in the kind of regulations that we have. What we have here is not the FCC telling long distance providers to give pay phone operators money that long distance operators ought to owe pay phone operators. The money that's at issue here, the 24 cents per call is the money that callers owe the pay phone operators. If you look back at the D.C. Circuit's decision --
05-705 +++$+++ 45374 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, do they? I mean, the statute of the United States says that -- I think I'm correct -- the statute of the United States says they can't be required, the caller cannot be required to put in the quarter in order to get the 800 number and so on. So as a matter of law, don't we have to say that the, in practical terms, the caller doesn't owe? Official Somebody owes. Somebody ought to pay for the use of this facility. But Congress has said it is not the end user.
05-705 +++$+++ 45375 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You are right, Justice Souter, insofar as we're trying to capture the money here for essentially the equipment rental or the access fee that the caller is availing himself of. But Congress has not said that money cannot rest on the caller's shoulders. All Congress says in Section 226 is that the caller cannot be required to pay in advance. The FCC during its rulemaking proceedings actually considered two alternatives where the caller would have paid in full compliance with Section 226. One would be the caller paying with a later billing device like a credit card, billing it to their home phone number. Another option the FCC considered would have been where the long distance providers would have billed customers on behalf of the pay phone operators. Either way, the customer would have paid. Even the respondent in his brief openly --
05-705 +++$+++ 45376 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the customer is going to pay if, in fact, the long distance carrier is the one who has to make the immediate payment, because that payment is going to be figured in the long distance rate. So that ultimately, the end user is going to pay for the service he gets, and Congress is simply saying, the way Official to make this thing work in a sensible and simple way is to require the long distance carrier to make the reimbursement. The economic end result is exactly the same as it would have been if they had said, well, you can send a bill for 25 cents to the end user.
05-705 +++$+++ 45377 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The economic result may be the same, but with all due respect, Congress has not decreed that the administrative system work this way.
05-705 +++$+++ 45378 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It hasn't decreed otherwise.
05-705 +++$+++ 45379 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It hasn't decreed otherwise. Congress essentially --
05-705 +++$+++ 45380 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't that the classic situation in which agencies are supposed to figure out what to do?
05-705 +++$+++ 45381 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Congress gave the FCC power in 276 to come up with a plan. But this case, as the Ninth Circuit decided it is not under 276, it is under 201, so the question is whether failing to comply with the administrative plan --
05-705 +++$+++ 45382 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, as I understand it, it came to the conclusion not that they were not acting under 276, but that, in fact, the cause of action has to refer back to 201.
05-705 +++$+++ 45383 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. I'm sorry. It brings Official us back to the question that you asked: Whether the Ninth Circuit, or the FCC for that matter, can shoehorn this into 201 as an unjust and unreasonable practice.
05-705 +++$+++ 45384 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In your answer for why they can't, Justice Souter's comment is a classic, this is what administrative agencies do all the time in typical rate regulations. They make a determination that utility shareholders have to bear this cost. The rate payers can bear this cost. And at the end of the day, it is a determination that a rate is reasonable or unreasonable. And it seems to me that that is just what is involved here. I don't know why their determination about how to allocate who has to collect the rates, and whether they can pass them on or not makes it an impermissible interpretation of what's unjust or unreasonable under 201.
05-705 +++$+++ 45385 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Chief Justice Roberts, the FCC was unquestionably acting under 276 when it did this. So the question is whether you can go back to 201. And as I said, you need to start with section 206 and 207 because we're in Federal court. And that says that violations of the Act are remediable but not of regulations, in contrast to numerous other sections. So the question in asking whether it violates 201, Official it has to be something more than simply the FCC's regulation wasn't followed. And we need to ask ourselves what kind of regulation is it.
05-705 +++$+++ 45386 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are rate making regulations issued under 201, do they purport to be the FCC's definition of what is just and reasonable compensation?
05-705 +++$+++ 45387 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. That's what I conceded to Justice Souter earlier.
05-705 +++$+++ 45388 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They are issued under 201.
05-705 +++$+++ 45389 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think largely they are.
05-705 +++$+++ 45390 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So they are an interpretation of the statutory language in 201.
05-705 +++$+++ 45391 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
05-705 +++$+++ 45392 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you say this one is not.
05-705 +++$+++ 45393 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. And this Court can look several places, but it can first look to these -- this regulatory regime that was created, which was always thought of as being triggered by section 276. And then asking --
05-705 +++$+++ 45394 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ When you say it was always thought of as being triggered by 276, did the FCC reference 201 in issuing its determination that a failure to follow these regulations was unjust and unreasonable?
05-705 +++$+++ 45395 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In its order, it references 276 and 201. In the regulations -- I thought I was being asked Official about the regulations -- it leads with 276.
05-705 +++$+++ 45396 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose it issued the regulation after notice and comment, and said -- violation of the pay phone order is an unjust and unreasonable practice, would the case be different?
05-705 +++$+++ 45397 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it wouldn't be. And I think I want to flesh out and make sure I've gotten across the distinction between the rate making --
05-705 +++$+++ 45398 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You haven't. Maybe -- if this doesn't clarify it. I think everyone has about the same question. You have a bunch of pay phone operators. And if the AT&T were charging them too much, I think everybody would say that the FCC can say, hey, that's too much. You owe them 2 cents a call refund, and everybody would agree that the people who are hurt could go into court and bring a lawsuit and get the 2 cents. Right under 47 U.S.C. 201(b). Now, the only difference here seems to be that it wasn't AT&T that was charging, in my example, too much. They weren't paying what they owed. They should have paid what they owed. And that, says the FCC, is, under 201(b), an unreasonable practice. And, therefore, go in and collect it in court. Now, what is the answer to that? So far I have heard nothing that suggests Official that this couldn't be an unreasonable practice under 201(b), which is just what the FCC said it was. Now, what's wrong with what I said? I'm simply trying to focus you upon what I think is the question that's bothering some of us.
05-705 +++$+++ 45399 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are two things that are wrong with that, Justice Breyer. The first thing is that in contrast to ordinary rate making regulations, here, in the absence of regulations, long distance providers would owe pay phone operators zero. There's no reason why long distance providers would give money to pay phone operators. The 24 cents here is to capture what callers owe the pay phone operators. And so the FCC has come up with an administrative system. But there's nothing unjust or unreasonable about long distance providers not giving money to pay phone operators before the regulatory regime drops into place, whereas there is plenty that is unjust and unreasonable about overcharging, for example --
05-705 +++$+++ 45400 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, my answer -- not answer, but my characterization of what you have just said is that the FCC did say it was an unreasonable practice. But in your view, it was not an unreasonable practice not to pay. And you want us to go back and second-guess, which Official we could, if their view of unreasonable practice is unreasonable itself. And I guess you would have to overturn it. I didn't know that was what the case was about, but are you saying now that that's the issue? They said it was an unreasonable practice not to pay this money, you think it is a reasonable practice not to pay the money. There is a dispute. That's what we should do.
05-705 +++$+++ 45401 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
05-705 +++$+++ 45402 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay. Then what should we do?
05-705 +++$+++ 45403 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what you should do is reverse the Ninth Circuit.
05-705 +++$+++ 45404 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You say it would be a reasonable practice not to pay the money, but for the existence of the regulation.
05-705 +++$+++ 45405 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right.
05-705 +++$+++ 45406 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Just like AT&T when, in fact -- or any other utility that, in fact, runs into situations every day of the week, where but for an FCC regulation, they would not be overcharging, because they have a way of doing it that isn't on its face unjust. But the FCC writes some regulations and now it is unjust. So I guess to take that argument would overturn, I guess, about a hundred years of rate making law. Wouldn't it?
05-705 +++$+++ 45407 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it wouldn't. Justice Scalia, I Official think, has captained that position. And what we're saying is the FCC can pick a fair rate once it is something that long distance providers or any common carrier ought to be compensating somebody for. But what we are saying here is, this is a purely administrative creature. And then it gets to the second reason why --
05-705 +++$+++ 45408 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So in other words, you are saying -- I think it is common that the FCC might write some accounting rules, for example. And they might say, before these accounting rules, Mr. Bell's system in San Francisco, you could charge people 8 cents a call. But given the way we set up the accounting rules, we think this month you have to do 7 cents in the first six months, 7 cents, in the next six months, 9 cents. And any deviation from that is unreasonable. And the company does deviate. I would have always thought when they do deviate, they are behaving unreasonably, and someone who pays too much could go into court and get money back. Am I wrong about that?
05-705 +++$+++ 45409 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, you would have been right, Justice Breyer. We're not asking -- even the Louisiana Public Service Commission is another example of something. And that brings me -- I think I should go back to what --
05-705 +++$+++ 45410 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Before you go back, let's hear Official about the accounting rules. What would they be issued under? Would they be issued under 201?
05-705 +++$+++ 45411 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They might. The question that we would ask is whether it affects carriers' relationships to their customers. Now, under Justice Breyer's hypothetical, and this is the Louisiana Public Service Commission --
05-705 +++$+++ 45412 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It seems to me accounting rules -- in order to decide what is just and reasonable, you have to have accounting rules. So the accounting rules fit very comfortably under 201.
05-705 +++$+++ 45413 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think we're disagreeing. What I want to do is distinguish those from the case we have here, and go back to Justice Souter's --
05-705 +++$+++ 45414 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I focus your return to me? Because I want to take up with where your answer to Justice Scalia left off. As I understand it, you were saying that the rate in this case is unreasonable because the party or the person who is responsible for the use of the pay phone facilities is the person who's making the call, not the long distance carrier. My question to you is, isn't that simply a choice of characterization? Because another way of looking at it would be that the person who makes the call wants to use long distance facilities to get to the person he Official wants to talk to. And, therefore, the long distance facility in every pay phone case is using the pay phone in order to get the customer to what the long distance facility provides. Why then isn't it just as fair to characterize the use of the pay phone here as for the benefit of the carrier as for the benefit of the customer? And if that is just as fair, doesn't that end the distinction that you drew with Justice Scalia saying that it is not fair in this case.
05-705 +++$+++ 45415 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, for two reasons. The first is -- I just want to be clear, we are not challenging the FCC's authority to have created the regulatory regime it did under 276. So the FCC could well have picked, as it did, long distance providers to be on the ultimate hook here. But the reason -- but the problem with saying that -- I'm sorry. I lost the train of thought in your question.
05-705 +++$+++ 45416 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ My question is simply, you can say -- one way of looking at this transaction is, it is the guy making the call who's using it. Another way is to say the long distance facilities carrier is using it to get the call to the long distance facility. If you look at it in way B, doesn't your argument for unreasonableness disappear? Official
05-705 +++$+++ 45417 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. That would be an entirely different case than the one we have here, Justice Souter. The 24 cents that the respondent is seeking to recoup here, if you go back and look at the regulatory system -- and that's what they are asking for, is the 24 cents that the FCC regulations entitle us to -- was calculated -- in fact, the D.C. Circuit made the FCC go through this exercise three times to get it right. So to calculate that 24 cents, it is purely a function of the amount of money that the caller owes the pay phone operator.
05-705 +++$+++ 45418 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What difference does that make? What difference does that make? The use of the phone is of a value of 24 cents. But the value of using the phone is a value not only to the caller, but to the long distance provider who couldn't provide anything to the caller without the pay phone? Why isn't the alternative characterization just as easy, regardless of how they get to 24 cents?
05-705 +++$+++ 45419 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think another way to perhaps characterize your position is, why is this like a commission that they are seeking. And the reason why is because that number may be very different than 24 cents. If there was such a commission that could exist, it would be far less. And the respondents are not seeking that amount of money. Official
05-705 +++$+++ 45420 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Excuse me, but aren't you arguing with the 24 cents, as opposed to creating an argument about what is the proper characterization of the transaction?
05-705 +++$+++ 45421 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so. All I'm saying is if you started with trying to compensate pay phone operators for the service they provide -- that you're characterizing as the service they provide to long distance carriers, you end up with a far different number. Who knows what you would end up with. Probably end up with zero. Because take an example of somebody who rents a cell phone for the weekend. They might make lots of long distance calls on the cell phone, but nobody has ever thought that a long distance carrier ought to be kicking back money, for example, to the store that rented the cell phone to the customer over the weekend. And I want to return, I think in Justice Breyer's question --
05-705 +++$+++ 45422 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The reason is that the store that rents the cell phone is getting rental income from the cell phone. And in the case of the pay phone, the pay phone operator is going to get zero, unless there is some such scheme as this.
05-705 +++$+++ 45423 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, but then we're back to the rental income question, and the question of whether it Official would be unjust or unreasonable for long distance providers, absent the regulations, to be the ones paying that rental income. And the answer, we submit, is no. And the problem that I think we've gotten off on a couple times brings us back, I think, to the assumption you asked me to make at the beginning of the argument, that something is a covered practice under the Act. And so another way to understand the distinction between the accounting rules, the rate making exercises and all the rest in this case is that section 201(b) of the Act doesn't cover everything in connection with a communications service. It only covers certain practices in connection. And the history, as well as the text and structure, shows that it regulates common carriers acting as such.
05-705 +++$+++ 45424 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It doesn't cover certain practices in connection. It covers all practices in connection.
05-705 +++$+++ 45425 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think we agree with respondent, Mr. Chief Justice, that in looking at 201(b), you have the word such communication practices. And to understand what that is referring to, you look back up at 201(a) and see the universe. Now, the beginning of 201(a) is what we colloquially call the carrier customer section of the Official Act. And that's the core of 201(b), which says that when a common carrier is providing service, it needs to act justly and reasonably. Here -- and with accounting and rate making and all the rest, those are things that affect rates and service to customers. What we have in this case is something very different. This is a carrier-carrier relationship. So you need to look somewhere else. And what respondent says is you look to the end of 201(a), which talks about physical interconnections between carriers. But the problem with that argument, and the reason why this falls outside 201(b), even if it is somehow unjust and unreasonable, is that the carrier-carrier relationships are governed only when the FCC has ordered physical interconnection.
05-705 +++$+++ 45426 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you are saying that, putting aside 276, it would clearly be impermissible for the FCC to say one way that long distance carriers provide service to their customers is when those customers use pay phones; and, therefore, we're setting up this rate regime in connection with that service. You would say that would be outside the scope of 201(a)?
05-705 +++$+++ 45427 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As we're still talking generically, I don't think it necessarily would be. Because it could regulate the relationship between long distance providers Official and their customers. I mean, that's the core of what 201 is about. It's about how much they can charge, what kind of practices they can have in relationship to their customers. But here we're not talking about a long distance provider that is a common carrier in relationship to its customers or in relation to its rates and practices.
05-705 +++$+++ 45428 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's actually -- that's, I think, your strong -- to me that was the strongest argument. When I finished reading it, I thought, well, so what. You know, I mean, can you see why I thought that? I mean, today's rule is different. It is true that you don't have simply a single telephone company providing service ultimately directly to the customer. You have everything mixed up. And there are a lot of inter-carrier things. Language covers it. Purpose covers it. Facts and circumstances change.
05-705 +++$+++ 45429 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We submit it is a not a "so what," Justice Breyer. Because section 201(b) is broad, but it's not all-encompassing. And Congress plenty of times in section 276, and in lots of other sections of the Communications Act, has responded to modern necessity by giving the FCC expanded jurisdiction, just as it did, as I said here, in section 276. But our core position here is that when Congress Official expands the FCC's authority, and it doesn't create a concomitant Federal right of action along with it, it is telling the FCC to handle these things administratively, use its expertise, craft regulations and enforce them accordingly.
05-705 +++$+++ 45430 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Fisher, can I go back to the first question I asked you? Would the FCC have had authority to create an administrative remedy that had a fee shifting provision in it?
05-705 +++$+++ 45431 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The FCC might have that authority. Section 154(i), as well as other sections in the Act, give the Commission broad authority in crafting its administrative enforcement regimes. I haven't focused on that exact question, but it might well be able to say that in order to have this properly enforced, we need to have fee shifting.
05-705 +++$+++ 45432 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It could certainly impose penalties of some kind.
05-705 +++$+++ 45433 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it could, and the FCC could double fine -- the FCC could do lots of things. That's our very purpose, is that the FCC ought to be the single forum deciding what kind of an enforcement mechanism is best, not leaving it to Federal courts across the country. And as Ninth Circuit invites, state court rulings across the country with varying rules. Official If there are no more questions I'll reserve the remainder of my time.
05-705 +++$+++ 45434 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Fisher. Mr. Englert?
05-705 +++$+++ 45436 +++$+++ FALSE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: It is not particularly unusual for the grants of authority in the FCC -- to the FCC throughout the Communications Act to be enforceable through the provisions of section 201(b) barring unjust or unreasonable charges, classifications, rates, or practices. Justice Scalia asked a question during Mr. Fisher's argument about, what about the accounting rules? Would they be prescribed under section 201? They would be prescribed under section 220, which is the provision of the Act that governs accounting. And they would also be prescribed under the last sentence of section 201, which is the general authority given to the FCC to promulgate all of its rules. But nothing in those facts would keep a violation of those rules from being enforced as an unjust or unreasonable practice under Section 201(b). Official
05-705 +++$+++ 45437 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What can't -- what can't be sucked in under section 201? I mean, once the FCC issues a regulation, it's easy to say that any violation of that regulation is unjust. And that's what's happened here. And this just makes a farce of the provision that says the only private causes of action are for violations of the statute and not for violations of the regulation. It seems to me if this thing, 276, can get sucked into 201 simply by reason of the fact that failing to obey an FCC regulation is unjust, that provision is a nullity.
05-705 +++$+++ 45438 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, first of all, the FCC has never argued, and we have never argued that all FCC regulations are enforceable through a private right of action. I mean, to give an example, as --
05-705 +++$+++ 45439 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I'm saying you'd have to argue that if the theory you're propounding for this case is correct. Violation of an FCC regulation is unjust. Failing to comply with an FCC regulation is unjust.
05-705 +++$+++ 45440 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no, Your Honor. The phrase unjust or unreasonable is a classic phrase delegating to the administrative agency the authority to make the determinations in the first instance of what's just and reasonable. If, for example, there were a violation of the regulation forbidding giving credits to political Official candidates, the FCC could decide in the first instance whether the violation of that regulation rises to the order of unjust or unreasonable.
05-705 +++$+++ 45441 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So can -- every FCC regulation can be enforceable by private action? All the FCC has to say is that violation of this regulation is unjust.
05-705 +++$+++ 45442 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor.
05-705 +++$+++ 45443 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No?
05-705 +++$+++ 45444 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are also examples of things that fall outside of charges, classification, rates or practices. There are examples in the case law. There are old ICC cases in which providing a particular type of boxcar was deemed not to be a charge, classification, rate -- held not to be a charge, classification, rate or practice. There is a recent D.C. Circuit case involving an attempt to dictate, in the FERC context, to an energy company who can be on its board of directors.
05-705 +++$+++ 45445 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But at least -- at least any FCC regulations relating to charges, practices -- and you want to interpret practices very broadly -- classifications, and regulations for and in connection with communication service, all of those regulations can be sued upon in Federal court with all the diverse and contradictory rulings that that will produce, so long as Official the FCC says that the failure to obey this regulation is, in our view, unjust.
05-705 +++$+++ 45446 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, let's start with statutory text. Section 206 says that there is a damages action for anything in this Act declared to be unlawful. Section 201(b) says unjust or unreasonable classifications, practices, et cetera, are declared to be unlawful. So we have a very precise match in statutory text between 201(b) and 206. Now, what Mr. Fisher's argument amounts to is to say that if it is covered in a regulation, it is exempted from being called an unjust or unreasonable charge, classification, practice, et cetera, because that would allow the FCC to enforce too much. But if we start with the text Congress enacted, there is a precise match between 201(b) and 206. And to say that that which the FCC hasn't regulated is more subject to judicial review --
05-705 +++$+++ 45447 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't think he's saying that. I don't think he's saying that if it is covered under regulation, it can't be unjust. Some regulations do relate to justness and reasonableness, but not 276. I think what he's saying is 276 established a scheme. It didn't have to be this scheme. It could have been some other scheme. Nothing in the nature of things says Official that the long distance carrier has to be the one liable for this. It rather was simply imposed by the FCC. That's fine. But to say that it would be unjust for them not to do that is just unreal, unless you're going to allow any violation of any FCC regulation to be unjust.
05-705 +++$+++ 45448 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, our position doesn't require us to argue that it would have been unjust for the FCC to adopt some other scheme. Our position is that once the scheme is in place, it is unjust to depart from that scheme in the way Global Crossing did, just as once a scheme of rate regulation is in place, even though there could be many different schemes of rate regulation, it may be unjust or unreasonable to charge a higher rate than that.
05-705 +++$+++ 45449 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the rate regulation is -- is established in order to determine what reasonableness and justness requires. And 276 is something quite different.
05-705 +++$+++ 45450 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I respectfully disagree, Your Honor. 276 is, asks -- was a delegation by Congress to the agency to fill in the details of a plan to make sure that pay phone service providers were fairly compensated, a phrase not very different from just and reasonable, for each and every completed interstate and intrastate pay phone call. They really fit quite nicely together as Official opposed to being in tension with one another.
05-705 +++$+++ 45451 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is it possible -- I was worried somewhat about, I think, the problem Justice Scalia raised, that old regulations become unjust and unreasonable. And then I thought, no, but tell me if this is right. That they're going to fall within 201(b) only if a violation is unjust and unreasonable. Now, we could say, and moreover, the FCC has to find that a violation of these rates is unjust and unreasonable, that is, it has to focus on it, make that determination. And then, of course, that determination has to be a reasonable interpretation. In other words, it can't just call anything unjust and unreasonable --
05-705 +++$+++ 45452 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. The usual --
05-705 +++$+++ 45453 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And it has to focus on the fact that their doing so will create this private remedy in the courts.
05-705 +++$+++ 45454 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor --
05-705 +++$+++ 45455 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That that -- if you have that tough -- which I haven't seen anywhere, but I mean, if you had that tough a requirement, so they actually have to focus on it, it would tend to minimize the problem of a thousand different actions in ten thousand different courts and a big mess. But I mean, how much is written into those words Official unjust and unreasonable? I'm certain you can't squeeze any rate -- it is not the case that any and every regulation can be -- fall within.
05-705 +++$+++ 45456 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, that's right. The usual Chevron limitations apply. And in your question, Justice Breyer, you added to the usual Chevron limitations that the FCC has to focus on --
05-705 +++$+++ 45457 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yeah --
05-705 +++$+++ 45458 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's fine. Here the FCC did focus on it and is criticized for having focused on the consequences for judicial action.
05-705 +++$+++ 45459 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, but reasonably criticized for it. I would have thought your answer would be unjust or unreasonable has, for generations, been given a very expansive reading. And you don't need to say that the FCC has to do what typically I would have thought was a job for a court, which is to determine whether there's a private right of action to bring its action within a boilerplate term like unjust or unreasonable. I would have thought the contact point was what I was talking about with Mr. Fisher earlier, which is whether or not this is such communication service under 201(a), which is -- which is, again, I suppose, something that the agency gets deference on. But it would seem to Official me, that's where the limitation would come.
05-705 +++$+++ 45460 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, let me address the interplay between 201(b) and 201(a), because Mr. Fisher has simply misunderstood our position. We cited the second half of section 201(a) not to say it applies of its own force here, but to say that it disproves the contention that the communications services referred to in the phrase such communications service in 201(b) have to be limited to carrier-customer relations, because 201(a) isn't limited to carrier-customer relations. Yes, all 201(a) does of its own force is allow the prescribing of through routes and interconnections. But there is no possible way to read 201(b) as limited to carrier-carrier communications in light of the full breadth of practices covered by 201(b). So that's the reason to cite 201(a) is simply to disprove Mr. Fisher's contention about the limits on 201(b). The phrase such communications service is actually used in 201(a) and in 201(b), and the antecedent in the first few words of 201(a), the such communications service, is interstate or foreign communication by wire or radio. So 201(b) isn't necessarily restricted to either carrier-carrier or carrier-customer relations, but such communication service relates back to all Official communication by wire or radio, which is what we have here.
05-705 +++$+++ 45461 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but wait. Wait. Wait. It says to furnish such communications service, is what (a) says. And they don't furnish such communications service to your client.
05-705 +++$+++ 45462 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but -- well, that's debatable, but what 201(b) refers to, in any event, is in connection with --
05-705 +++$+++ 45463 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Such communications service.
05-705 +++$+++ 45464 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
05-705 +++$+++ 45465 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I would think that would mean such communications service that was furnished.
05-705 +++$+++ 45466 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they have furnished a communications service to a customer, not to us, but to a customer. So again, this is connected with that communications service. And as the colloquy with Justice Souter earlier touched on, the caller pays sooner or later. Under the FCC's regulatory scheme, and in part because of the prohibition on advanced caller payment in 226(e)(2), what happens is the long distance carrier gets the money, and they're saying there's no private right of action to make them give it back. In other words, the world would look quite different without a regulatory Official scheme, but it would not be a regulatory scheme in which they get all the money they are currently purporting to keep. Now, Mr. Chief Justice, you also asked a question about the flash point on whether the FCC was improperly or suspiciously commenting on the scope of the private right of action as opposed to interpreting a substantive provision. The private right of action provisions are 206 through 208, the provisions that let the complainant go to either court or the Commission. The FCC said nothing controversial about the scope of 206 through 208. The controversy is over the scope of 201(b), which is a substantive provision. But once you have something brought within the scope of 201(b), after the application of traditional tools of statutory construction with Chevron deference, the private right of action follows automatically under 206 and 207. It is not a matter of the FCC reaching out to say, we are going to create a private right of action. It is a matter of the FCC construing a substantive term with consequences for a private right of action.
05-705 +++$+++ 45467 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I think that's right, but that's also why I guess I don't regard it as particularly helpful that the FCC opines on what the consequences of its determination that something is Official unjust or unreasonable under the statute are, with respect to a private right of action.
05-705 +++$+++ 45468 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it may not be particularly helpful, but it is surely not particularly harmful. And they did have a reason --
05-705 +++$+++ 45469 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, except that it is none of their business.
05-705 +++$+++ 45470 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If they were trying to construe --
05-705 +++$+++ 45471 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We --
05-705 +++$+++ 45472 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- 206 through 208, Your Honor, I might agree. But they construed 201(b) and commented on the consequence. And this is quite important, that it is their business, because 208 is the provision under which each and every one of those Commission proceedings cited in the Sprint brief, which Mr. Fisher alluded to, has proceeded before the agency. 208, just like 206, requires a violation of the Act, so it is very much their business to decide whether these pay phone controversies state violations of the Act. If they don't, the Commission has absolutely no power to proceed under 208, which is the only provision under which any administrative proceeding has ever gone forward. There are some arguments made here that they clearly have the authority to proceed administratively even if you can't go to court, but Mr. Fisher hasn't Official identified the source of that authority. And the sources identified in the brief are section 4(i), which has been problematic, and others -- and other sections on which the FCC has never relied on in this setting, and some kind of divination of an action within Section 276 itself. The question was put at one point to Mr. Fisher, could the FCC mandate fee-shifting as part of this administrative remedy it's going to create. Well, if you read 276 broadly, it's giving the Commission great powers to create administrative remedies, notwithstanding 208, which was supposed to be the administrative provision, then maybe anything goes. But we're getting awfully far from the statute that Congress wrote and giving the FCC awfully expansive powers to construe 276, while also denying the FCC rather mundane powers to construe rather ordinary phrases of administrative law, "unjust or unreasonable," in 201(b). Now, with respect to the question of whether this is a practice in connection with a communications service, Mr. Fisher argues strenuously that it is not.
05-705 +++$+++ 45473 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Let me just be sure I understand your argument on 208. You're saying that 208, like the earlier provision of the statute, requires a violation of the statute, not just regulations, in order for there to Official be an administrative remedy.
05-705 +++$+++ 45474 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Stevens, and section 207 expressly gives the complainant a choice of forums.
05-705 +++$+++ 45475 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So the same statutory requirement for the remedy that your opponent challenges is the one he acknowledges is available.
05-705 +++$+++ 45476 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, and in fact, Global Crossing -- Global Crossing went so far as to argue before the Ninth Circuit that there is no administrative remedy, that there's simply nothing to do except get fines under sections 502 and 503, and has reversed its position before this Court.
05-705 +++$+++ 45477 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you should be arguing, then, that we should give Chevron deference to the Commission's interpretation of Section 208. And once we do that, if 208 governs this thing, then so does 206.
05-705 +++$+++ 45478 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm happy to make that argument.
05-705 +++$+++ 45479 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought you should be.
05-705 +++$+++ 45480 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect to the question whether practices are limited to carrier-customer relations, I've already touched on that by talking about the interplay between 201(a) and 201(b). But there's another angle of approach for that issue, which is that in the Louisiana Service -- Louisiana Public Service Commission case, this Court was asked to draw the inference, just as it has Official been in this Court, from other provisions in the Communications Act, that those phrases always refer to carrier-customer relations. And the Court said, no, that phrase can also refer to depreciation rules, so it's not limited to carrier-customer relations, the inference from other provisions of the Act doesn't flow. And the reason is there are words of limitation when those words, "charges, classifications, rates or practices" are used in those other sections that make it clear that they apply only to tariffed services. You find no such words of limitation in 201(a) and 201(b) -- or in 201(b), excuse me. Now, there remains the argument that there's a mismatch between section 201 and the relevant regulations because the regulations apply to intrastate as well as interstate calls, and section 201 applies to interstate or foreign communications. That argument appears for the very first time in merits briefing in this Court. It wasn't made below. It wasn't made in the cert petition. It wasn't made to the agency. And that's a problem, because the limits of the FCC's ability to regulate jurisdictionally mixed communications depend on factual determinations, factual determinations neither the agency nor even the lower courts have ever been given a chance to make. Official But had this issue been raised in a timely fashion, I suggest that it would have been appropriate for the FCC to reach intrastate as well as interstate communications because long distance -- dial-around calls are overwhelmingly long distance, overwhelmingly interstate, and it is difficult to sort out which calls are which. In fact, the seven years of rulemaking the FCC underwent in this case largely were because of the difficulties of keeping track of particular pay phone calls.
05-705 +++$+++ 45481 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I saw that argument. I have to say I don't understand it. Why is it so difficult? I get a bill every month that easily sorts out which are interstate and which are intrastate.
05-705 +++$+++ 45482 +++$+++ TRUE +++$+++ MR. ENGLERT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sorting one call from one carrier that has a relationship with you is not difficult, or sorting 100 calls from a carrier that has a relationship with you is not difficult. But when you go from a PSP to an inter-exchange carrier to a switch-based reseller, matching up the information of all three is -- has proven, in practice, to be quite difficult. And it's especially difficult in an era in which you can't just tell by area codes, for example, whether something is interstate. If I dial 202 to 202, I may be dialing someone's cell phone out of Official state. Now, the judgment below could be explained on the alternative ground that a violation of the regulations constitutes a violation of section 276. Before I even get to the substantive discussion, let me respond to the absolutely groundless claim that that argument has been abandoned. Global Crossing cites a bunch of cases involving section 1291 appeals in which people didn't appeal a particular order after final judgment, and says that's an abandonment of the claim. That's both correct and irrelevant. This is a 1292(b) appeal and there is no final judgment on any claim in this case, certainly not on the 276 claim, so my client certainly hasn't abandoned it. My client was also a party to Greene and lost Greene and has argued the merits of the section 276 position all along. On the merits, section 276 contains rights-creating language that creates a concrete monetary entitlement, focuses on the party benefitted, and does not have an aggregate focus. Global Closing doesn't even try to defend the Ninth and D.C. Circuits' reasoning that the statute does not contain rights-creating language. That leaves the tricky question whether a violation of the regs can be deemed a violation of the Act itself when Congress specified only the right, but Official didn't specify what fair compensation was, and didn't specify who had to pay the compensation. In that respect, I think Alexander v. Sandoval, though it's been cited against us repeatedly, is actually helpful to our position. That case says it's meaningless talk about a violation of the regs separate from a violation of the Act, and that a Congress that intends an Act to be enforced intends the regulations filling out the Act to be enforced. I think the theory of Chevron itself is also helpful to our position in this regard, because the point of Chevron is that the use of broad language constitutes an administrative -- a delegation of authority to the administrative agency, not just to fill in details, but to give definitive content to a statute whose direct content is less than definitive. So it is perfectly appropriate to talk about this statute, section 276, and its rights-creating language as ordering the FCC not just to create a plan, but ordering the FCC to create a plan that has a particular goal such that violation of that goal can be deemed a violation of section 276 itself. Thank you.
05-705 +++$+++ 45483 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Englert. Mr. Feldman? Official
05-705 +++$+++ 45485 +++$+++ FALSE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: There is no dispute in this case that under sections 206 through 208 of the Communications Act, a party damaged by any violation of the Communications Act may bring an action either in Federal court or before the Commission to obtain damages. The scope of the remedies before the Commission under the kind of standard primary provision of the Act that deals with damages, 208, and 207 mentions it as well, the scope of the action before the Commission and before the court is exactly the same. Now, because petitioner's -- therefore, if -- well, because petitioner's failure to pay fair compensation to respondent was an unjust or unreasonable practice --
05-705 +++$+++ 45486 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Let me just ask this. Is it the same with respect to fee-shifting?
05-705 +++$+++ 45487 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. The Act in 207 -- I believe it's 207 -- specifically says that you may, the court may award attorneys' fees in an action in court. It doesn't provide that -- there's no similar provision for actions before the Commission. But the scope of the kind of Official thing that Congress decided that a complainant could bring either to the Commission or to court is exactly the same. There's no way to drive a wedge between them. There are other provisions of the Act, as Mr. Fisher said, where Congress specifically authorized the Commission -- an action before the Commission for damages. But those are -- those provisions which Mr. Fisher cited are in section 226, which do not have to do with common carriers. They have to do with automatic dialing, with do-not-call lists, with things like that, where the person who's violating it is definitely not the -- never going to be a common carrier. In those provisions, Congress found it necessary to say, okay, we have to now give you the authority to create a damage action. But in other provisions, where you are dealing with common carrier, 206 through 208 provides Congress's determination of what the scope of a damage action should be either before the Commission or before a court.
05-705 +++$+++ 45488 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you have a position on whether or not Chevron deference is owed to the Commission's determination of whether or not their action creates or gives rise to a right of action?
05-705 +++$+++ 45489 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that --
05-705 +++$+++ 45490 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There are two different, Official it seems to me, two different Chevron questions. The one is the deference on its interpretation of what's unjust and unreasonable. The other is the question of whether or not they have anything to say about whether that means there is a private right of action in court.
05-705 +++$+++ 45491 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that -- I guess we don't have a position on whether 276, independent of 201, would be sufficient to have a prior right of action under 206 through 208. But as for 201(b), once -- the FCC does certainly gets deference, has gotten deference for a hundred years for its determination of what is an unjust and unreasonable practice.
05-705 +++$+++ 45492 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But it's never gotten deference, at least I guess from this Court, on whether or not there is or is not a right -- whether there is a right of action to enforce its regulations.
05-705 +++$+++ 45493 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, and I don't think the FCC here is claiming that there's a right of action to enforce its regulations.
05-705 +++$+++ 45494 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but they're certainly entitled to deference as to whether an administrative action can be brought under 208.
05-705 +++$+++ 45495 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, and that's why under --
05-705 +++$+++ 45496 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Once you say that it can, then a Official court action can be brought under 206.
05-705 +++$+++ 45497 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. That's correct.
05-705 +++$+++ 45498 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you think we don't owe them deference for 206, but we do for 208. And if you give deference for 208, 206 automatically decides itself.
05-705 +++$+++ 45499 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. But 208, like 206 -- maybe I'm not understanding the question. Both provisions address only violations of the statute.
05-705 +++$+++ 45500 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-705 +++$+++ 45501 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So in order for the FCC to decide that there's an action either before the agency or the court, it has to identify a violation of the statute. Here it's identified 201(b) as being the provision that's violated. It's absolutely standard for a hundred years that -- I mean, Mr. Fisher says, well, you can't look at 201(b) and decide who is supposed to pay and how much they're supposed to pay. That is absolutely standard from the very beginning of the Interstate Commerce Act, that you can't look at the words "just and reasonable" and decide whether a rate was just and reasonable or the practices that a carrier is using are just and reasonable. In fact, the whole --
05-705 +++$+++ 45502 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is your position -- I want to be sure I understand you. Your position on the two different questions that the Chief asked you is, they get Official deference on question one. And with respect to question two, it follows from the plain text of the statute.
05-705 +++$+++ 45503 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, that's correct. I would add also, with respect to the Commission's determination about what is just and reasonable, it was not just a question of saying that a violation of the regulations is just and reasonable. The Commission was charged here with the responsibility for adopting a compensation scheme that would provide for fair compensation for each pay phone operator for each and every call. And it spent a number of years and a number of different attempts working out what is a fair compensation. I would submit that all of that reasoning about what is a fair compensation scheme is also reasoning why it's unjust and unreasonable for a carrier not to pay the compensation. It's not just simply a question of an ipse dixit, it's a question of years of rulemaking and working out what the scheme should be, so it's fair. Once it did that, it didn't require a lot of explanation for why a failure to pay fair compensation that had been worked out over this period of time, a failure to pay that was unjust and unreasonable.
05-705 +++$+++ 45504 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are you making the point that Chief Judge Ginsburg made in the D.C. Circuit that it is Official necessarily unjust and unreasonable to refuse to pay a charge that is fair and reasonable?
05-705 +++$+++ 45505 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I'm really expanding on that point, that it didn't -- the FCC has always gotten deference for what -- determining what is unjust and unreasonable under the Act. And it didn't require a great deal of explanation. The FCC's explanation here was more than adequate in light of its years of explanation about why this -- this scheme with these rates and these carriers and the primary economic beneficiary being the one who pays. All of that were reasons why this was fair compensation. Once it decided all of that, it didn't take much to say that a failure to pay fair compensation is unjust and unreasonable. That was adequately explained and didn't require a huge additional amount of explanation.
05-705 +++$+++ 45506 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What -- sorry, go ahead.
05-705 +++$+++ 45507 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So you would have a different position here if 276 said something like, we think there ought to be more pay phones; in order to promote investment in pay phones, we're going to have this scheme. In other words, it has nothing to do with whether it's fair or not, it's a subsidy. Then you'd say that could be something that's not covered by the "just and reasonable" provision? Official
05-705 +++$+++ 45508 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think in that case also, I would probably be here arguing that maybe if the FCC had determined that it's necessary, for whatever regulations they came up with under that scheme, in order for the Act to function correctly, that they have to be complied with. I think I would also argue that that was unjust and unreasonable. But this case, if the question is, did the FCC adequately explain what it did here, I think that all of the years of explanation of why something is fair are also reasons why it was unjust and unreasonable not to pay the compensation.
05-705 +++$+++ 45509 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are there regulations, FCC regulations, the violation of which would not be unfair and unreasonable?
05-705 +++$+++ 45510 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think there probably are. Mr. Englert mentioned a couple. I mean, there's probably numerous ones that wouldn't be. And in fact, the question about most FCC action, or at least a lot of FCC action, regulations, adjudications, and so on, most of them have to do with carriers' obligations, and most of them are things that have to do with what's unjust and unreasonable under the Act. And they've been enforced for years, in the -- you know, from the very early cases under the Interstate Commerce Act. Official Mr. Fisher also suggested that there's a difficulty with numerous district courts deciding these issues as opposed to the FCC. Well, I would suggest that Congress decided that these kinds of actions can go either to district court or to the FCC. And in fact, by making damages actions, the scope of damages actions, as opposed to other remedies, co-extensive, did anticipate that there would be that result. The primary jurisdiction --
05-705 +++$+++ 45511 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Depending upon how broadly you think Congress intends regulations to be sucked into the terms of this statute. I mean, your interpretation means Sandoval really didn't say a heck of a lot.
05-705 +++$+++ 45512 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that that's correct. It means that in the context of a statute that gives the agency authority -- that prohibits unjust and unreasonable action, which was not the case in Sandoval --
05-705 +++$+++ 45513 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, but you could say any violation of a regulation is unjust.
05-705 +++$+++ 45514 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I think it is possible that the FCC could determine that any violation of a regulation is unjust, and the FCC is entitled to deference for its determinations about what is unjust and unreasonable, that's been -- Official
05-705 +++$+++ 45515 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So Sandoval doesn't mean a heck of a lot. All the FCC has to say is, we think violation of this regulation is unjust.
05-705 +++$+++ 45516 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I think the FCC's determination has to be reasonable under the ordinary types of Chevron standards. But, in fact, when you look at questions of what's just and unreasonable over the years, it is -- it has always been the case that the agency entrusted with determining that and getting the communications system working or getting common carrier systems -- common carriers to fulfill their obligations, does have a lot of leeway in determining what is unjust and unreasonable in that context. Thank you.
05-705 +++$+++ 45517 +++$+++ TRUE +++$+++ THE COURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Feldman. Mr. Fisher, you have three minutes remaining.
05-705 +++$+++ 45519 +++$+++ FALSE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. Let me begin, Mr. Chief Justice, with your question about whether the FCC can opine on remedies. All you need to do is look to what the FCC was telling everybody it was deciding in these order proceedings. It was deciding, and asked for notice and comment, on whether PSPs have a remedy for violations of the pay phone regulations. That is cited everywhere Official in the briefs. It never asked for notice and comments, or considered whether failure to pay under the regulations is a violation of 201(b). So the question this Court needs to ask itself is when the FCC, by its own acknowledgment, until now, is simply opining on the presence of a Federal court remedy, whether it gets deference simply because it hangs the hook on a substantive provision of the statute. Now, there are three problems with what the FCC has done in construing section 201. The first is that this is not a covered practice, because I want to make clear our position, it's that the FCC has plenty of authority with respect to carrier-customer relationships, but not with respect to carrier-supplier relationships. And that's what we have here. On unjust and unreasonable, I think we need to unpack two separate questions. One is whether the rate the FCC chose is reasonable, whether the amount of money that it said needs to be put into pay phone operators' pockets is a fair and reasonable choice. We have no dispute about that. And we think that in and of itself could generate deference. But the FCC's determination to put the payment obligation on long distance carriers simply can't be shoehorned into the unjust and unreasonable phrase in Official 201(b), because if that's -- the only reason why anything, us failing to pay the money, would be because of the regulations. And you hear it again and again in their argument, the FCC having concluded that long distance companies are the ones that pay, the failure to pay is unjust and unreasonable. There's no way to get there without the regulations, and that's what distinguishes --
05-705 +++$+++ 45520 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's not true. You can say that this is a way you make a lot of money from your customers that you wouldn't otherwise make, because if there wasn't a pay phone there, they wouldn't be able to use your service.
05-705 +++$+++ 45521 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The FCC might have said that, but as I said to Justice Souter, that would be a very different proceeding and a very different scheme than we have here, and a very different dollar figure or cent figure that the FCC might have come up with when it was trying to encapsulate that figure, which we think is zero, but under your reasoning may be something very small. But that would be a very different case. Two more things. One is, on the jurisdictional mismatch question, Mr. Chief Justice, you are exactly right. It is not hard -- there are plenty of hard things in this case, but figuring out whether a call is Official interstate or intrastate is not one of them. All you need to know is where the call originated from, and the number that was dialed, and pay phone operators have that information.
05-705 +++$+++ 45522 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about the cell phone example?
05-705 +++$+++ 45523 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This is a pay phone case. So all you need to know is the cell phone number and that --
05-705 +++$+++ 45524 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you don't know, the cell phone holder may be right next to the pay phone or he may be across the country.
05-705 +++$+++ 45525 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it still constitutes a long distance call, depending on where the cell phone owner lives. And that's still an easy thing to figure out, where the area code is. Finally, Justice Stevens, you asked a question about the co-extensive nature of the remedies under 206 and 208. We don't dispute that the statute itself is co-extensive. What we're saying is that 276 gives the FCC more than ample authority to do what it's doing. Nobody has denied that, and so we think that that's the place to look for the FCC to craft the arrangement under Southwestern Cable. Combined with section 154(i), the FCC would have ample authority to do that. Official
05-705 +++$+++ 45526 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Fisher. The case is submitted.
05-7053 +++$+++ 45530 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument first this morning in Dixon v. United States. Mr. Jett.
05-7053 +++$+++ 45532 +++$+++ FALSE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: In this case, the parties agree that Federal courts, including this Court, have addressed nonstatutory defenses for almost 200 years and that Congress, in enacting criminal law statutes, legislate against a background of Anglo-Saxon common law, such that a defense of duress was likely contemplated by Congress when it passed the gun control statutes. It is, therefore, required that courts apply defenses, such as the duress defense, based on the background principle of construction that the prosecution must prove criminal intent beyond a reasonable doubt. The Government would have this Court discount the development of over 110 years of common law that has produced a substantial, well-established, well-reasoned majority rule in both State and in Federal courts that places the burden on the Government to disprove the absence of duress once that defense has been raised by the evidence. The development of the majority rule began with this Court's decision in Davis v. United States in 1895.
05-7053 +++$+++ 45533 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Jett, do I take it, from what you've just said, that you are recognizing this is a question of Federal common law and not due process, so that if Congress placed the burden on the defendant, there would be no constitutional infirmity? You're just arguing that this is the Federal common law?
05-7053 +++$+++ 45534 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our -- our first issue and our first contention is that Federal common law will govern the decision in this particular case, but we also have a due process point that we also believe is germane. But --
05-7053 +++$+++ 45535 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You -- you -- then you think that Congress could not say that the defendant has the burden on the question of duress.
05-7053 +++$+++ 45536 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We think that Congress could not under the -- the precedents of this Court and under the -- the basic common law construction that's fundamental, I think, to the -- to the criminal law in this -- in this country.
05-7053 +++$+++ 45537 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What do you do with Martin against Ohio?
05-7053 +++$+++ 45538 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we understand about Martin v. Ohio, Your Honor, and we think that -- that based on recent precedents, Martin v. Ohio should be reconsidered. The -- the significant issue is that duress is based on the fact that there -- that there must be free will, and if free will is dispensed with, in this case by duress, then the -- the defendant doesn't have the requisite criminal intent. And -- and in our -- and since the beginning of -- since before the beginning of common law in -- in our system, it has been recognized that in order to have a criminal -- a crime, there have to be two things: one, a vicious will and the other an act -- an evil act concurrent with the vicious will. And --
05-7053 +++$+++ 45539 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, there may be -- there may be crimes where duress would vitiate an intent element, but there may be other crimes where it wouldn't. And -- and I don't understand your argument to be -- is it that in every case duress negates an element of the crime or only in some cases?
05-7053 +++$+++ 45540 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we think that in -- that in every criminal case, with possibly the exception of -- of public welfare cases, that -- that there is an underlying background construction for our criminal law, which requires the Government to prove beyond a reasonable doubt criminal intent.
05-7053 +++$+++ 45541 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which is the easier of the two cases for the defendant? A, the case where the argument is a burden of proof should be on -- on the -- the State as a due process matter or a common law matter in an insanity defense and, B, in a duress defense?
05-7053 +++$+++ 45542 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Which is easier for the State?
05-7053 +++$+++ 45543 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, either way.
05-7053 +++$+++ 45544 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we -- we contend that in a -- a -- duress is -- is different. Insanity deals with really the internal workings of somebody's mind, so that's perhaps more difficult for the State. But in a -- in a duress case, you're dealing not only with the internal workings but also external factors as well -- as well that impose somebody else's will upon the defendant.
05-7053 +++$+++ 45545 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I would think that it's easier in -- you know, we had -- we had a -- this term another case in which the argument is that you cannot have a separate insanity defense essentially and -- and exclude from the mens rea element of a crime the -- the lack of -- of mental capacity to -- to have that mens rea. This is the same thing you're arguing before us. And -- and it seems to me that if it applies to duress, it applies even -- even more strongly to -- to insanity. How can an insane person form the intent to commit a crime that -- that requires mens rea?
05-7053 +++$+++ 45546 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we -- we agree that -- I agree -- we agree that an insane person cannot form that particular intent. We think that they are similar except that the duress case is perhaps easier for the -- for the defense because we have external factors that often bear on what the defense is unlike --
05-7053 +++$+++ 45547 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- but we've held, at least under the M'Naghten version of the defense, that the State -- that the burden can be put on the defendant to show that he was not insane under the M'Naghten test.
05-7053 +++$+++ 45548 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we -- and we understand that, and again, our --
05-7053 +++$+++ 45549 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And as Justice Scalia said and as I was considering in asking my question, in your case we know that there was a conscious, knowing and intentional, in some sense, act when -- when the person bought -- bought the weapons. She says the intent, of course, was induced by -- by the threat. It seems to me you have a more difficult case than in the insanity case.
05-7053 +++$+++ 45550 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, our -- our -- we think that they're -- that they're similar because both deal with -- with the mental state, and -- and then historically, at least since -- since 1895 in this Court, this Court has said that you've got to have the vicious will in order to constitute a crime. And so you have the same issue here. Did Mrs. Dixon have the vicious will or was she acting under the will of someone else?
05-7053 +++$+++ 45551 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but doesn't vicious will mean simply the will to commit the crime?
05-7053 +++$+++ 45552 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Actually, no. It means the -- the criminal intent, not just to commit the crime but having the criminal intent, the vicious mind, to violate the law. Mrs. Dixon's --
05-7053 +++$+++ 45553 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what do you mean by vicious? I mean, that the person is -- is nasty, that the person is antisocial or asocial?
05-7053 +++$+++ 45554 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
05-7053 +++$+++ 45555 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't know what the added element is.
05-7053 +++$+++ 45556 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- this -- this Court has -- has frequently equated the vicious will with moral blameworthiness, that is, the desire to do wrong, that is, the desire to do something -- to -- the free desire based on the -- the choice of having -- being able to do the right thing or do the wrong thing and freely choosing to do the wrong thing, that is, moral blameworthiness.
05-7053 +++$+++ 45557 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The phrase Justice Harlan used in the Davis case.
05-7053 +++$+++ 45558 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-7053 +++$+++ 45559 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But when you -- when you say freely choosing, what you mean, I take it, is choosing with -- without consideration of pressure from a third party. That's what you mean, isn't it?
05-7053 +++$+++ 45560 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-7053 +++$+++ 45561 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
05-7053 +++$+++ 45562 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-7053 +++$+++ 45563 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if the -- the third -- the third party may, indeed, exert pressure, but I take it you would agree that it is still the decision of the defendant whether to cave in to that pressure or not, whether to commit the crime or not to commit the crime.
05-7053 +++$+++ 45564 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We believe that would not be a voluntary act. Certainly the defendant makes that decision.
05-7053 +++$+++ 45565 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I -- I don't want to get lost in -- in rhetoric here. Isn't it still the case, even on your theory, that the defendant in these circumstances makes a choice? It may be a troubled choice, a much more difficult choice to make than it would be otherwise, but the defendant still makes a choice as to whether to cave in to the third party's pressure or not, whether to commit the crime or not. Isn't that true even on your theory?
05-7053 +++$+++ 45566 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it is true.
05-7053 +++$+++ 45567 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
05-7053 +++$+++ 45568 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the difference is, as you pointed out, Justice Souter, that the defendant is not acting of her own free will. She's -- she's acting based on the will of someone else, that that person has overborne her will.
05-7053 +++$+++ 45569 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It was her will to yield to the will of someone else. I mean, you can't blame somebody else for her making the choice.
05-7053 +++$+++ 45570 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we -- we would respectfully disagree, Judge. She believed that there was figuratively a gun at the head of her children, and if somebody puts a gun to the head of my child, you can make me do almost anything that you want.
05-7053 +++$+++ 45571 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That may be a very intelligent choice on your part to do what the person with the gun at the head of your children tells you to do. But to say that it's not your choice, which is what you're arguing here, the only question is whether that has to be brought forward by reason of -- of a defense of -- of coercion or rather, whether it goes to whether you had the intent. That's all we're talking about here. And it seems to me you have the intent to yield to -- to the demand of whoever has the gun at the head of your children. It's a separate question whether the law should punish your yielding like that.
05-7053 +++$+++ 45572 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-7053 +++$+++ 45573 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- but you're telling us that you don't have the intent to -- to yield and -- and to do whatever criminal act that person tells you. Right? That just doesn't -- I just don't think it's true.
05-7053 +++$+++ 45574 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What -- what we're saying and what I think that this Court -- the precedents of this Court have said is that you have to have criminal intent. That is the vicious will that -- that the Court -- Justice Harlan talked about in Davis and this Court has talked about in Morissette.
05-7053 +++$+++ 45575 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, what is the statutory -- what is the mens rea under the statute for the offenses that the defendant was charged with? It's knowingly, isn't it?
05-7053 +++$+++ 45576 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, on -- on seven or eight of the counts, it's knowingly. Well, actually on the first count it's knowingly, but that is defined as -- as -- in this case, it was defined as voluntarily and intentionally. And then in the other counts, it was simply defined as knowingly. And so, indeed, that -- that's -- that is what the Congress said. However, based on the -- the precedents of this Court, that even when there is a knowingly culpable mental state provided by Congress, this Court has impart -- imported the -- the criminal intent to -- into the statute. And so like in -- for instance, in Morissette, which was a theft case, what this Court did was the Congress had said knowingly didn't provide a -- a criminal intent. So this Court imported one and said that the Court -- that the Government had to prove that beyond a reasonable doubt. Once the defense was raised, it became an element that the Government has to prove beyond a reasonable doubt.
05-7053 +++$+++ 45577 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, counsel, under your view, how -- how is the Government supposed to prove a negative in every case? How are they supposed to prove the absence of duress?
05-7053 +++$+++ 45578 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's really no different than any other case, Mr. Chief Justice. In -- in any case, for instance, a self-defense case, the Government has got to prove that -- disprove self-defense beyond a reasonable doubt once it's raised. They do it in the same way they do in the other case.
05-7053 +++$+++ 45579 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that's something that -- but self-defense is something that's often a -- a factual element that you can discern from the circumstances of the crime. The -- the other guy had a gun, you know, that sort of thing. So if it's going to be presented -- so it's something that's within the control of either side. Duress is something that in this case the Government would have no reason to suppose that it was even implicated until it's raised, and then they have no way of getting at what the particulars are because they're all within the control of the defendant.
05-7053 +++$+++ 45580 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we -- we would respectfully disagree with that. And this case is a very good example of -- of that -- of that circumstance. The Government -- early on in this case, they searched Mrs. Dixon's apartment and found evidence. They -- they interviewed her. They actually interviewed the abusers prior to trial before we gave them notice. They -- they were able to investigate her background partially before we gave notice, partially afterwards, so that they were able to -- to investigate her and circumstances of her life. But not only that, they were able to call as witnesses the seven gun dealers from which the guns were purchased who witnessed the purchase and who did provide testimony that she did not appear to be under duress, and they so testified. So in this particular case, it's really just like any other cases. You can certainly imagine a circumstance where that would be hard, but in very many cases, the facts are there just like a self-defense case or, for that matter, just like --
05-7053 +++$+++ 45581 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I thought the gist of her duress defense was not that she was under duress when she was purchasing the guns, but that she had reason to believe that her children were being threatened by accomplices or associates of -- of this -- this individual. And there's nothing in the facts of the -- the scene that would lead the Government to have any access to that evidence.
05-7053 +++$+++ 45582 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what -- what she was in duress about is she was told at the time that there was somebody at home with a gun who was just a cell phone call away. So as far as she was concerned, there was somebody there with a gun to the head of her children and she was in fear of her children's life. In terms of what -- what the Government knew in this particular case, the Government had notice. The trial judge required that we provide notice of a defense. The trial judge required that if we -- said that if we had an expert, we had to give the Government notice of the expert and the subject matter of the testimony of the expert. So the Government was very well informed prior to trial what the defense was so that they hired their own expert who actually was able to interview the -- the accused without me being there and -- and so was prepared to testify about the issues of duress.
05-7053 +++$+++ 45583 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What -- what is the threshold test that the defendant has to cross before the judge will give the instruction to the jury? Obviously, the burden of production is with the defendant. When can a judge say, well, you know, this -- this is just too flimsy for a duress defense? I'm not going to instruct a jury on that.
05-7053 +++$+++ 45584 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- the first thing the judge would have to determine is that has -- has there been evidence of each of the elements of duress, and the trial judge found that we -- we've produced evidence of each of the elements of the duress. The -- in -- in the circuit court cases, they've not been consistent, but we would -- we would suggest that the -- the standard would be that there would be sufficient evidence, when viewed in the light most favorable to the defendant, that would raise a reasonable doubt with a rationale jury, sort of the -- the other side of -- of the prosecution's burden that they have to reach in order to get to the jury.
05-7053 +++$+++ 45585 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What is the -- the methodology that you think we should follow in determining where the burden should be allocated under any particular criminal statute? Is it the -- the majority rule at the time when that particular statute was enacted or at -- is it -- you don't think it's the -- the old common law rule. What -- what is the -- at what point of time do we look at the -- at what's going on throughout our country?
05-7053 +++$+++ 45586 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think you've got to look at two points in time. And certainly we agree. We don't look at the old common law because -- because there's been 110 years of -- of development of common law in this country since Davis v. United States. So I think the Court has got to look at -- at what the common law was at the time that the relevant statute was passed, which in this case was 1968. But I think in addition to that, there -- there have been amendments to the statute.
05-7053 +++$+++ 45587 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So the burden would be different under different statutes?
05-7053 +++$+++ 45588 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-7053 +++$+++ 45589 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If we were dealing with a -- with a much older criminal statute, the burden might be allocated differently?
05-7053 +++$+++ 45590 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, because I think the -- I think you have to consider that. But the other thing you'd have to consider is the development of the common law since that time and what -- what courts have done, what the rationale has been that they have employed over time. And in this particular case, for instance, we have -- we have six Federal circuits and 29 States who have found that the burden of proof -- the burden of production should be on the defendant, but the burden of persuasion should be on -- on the Government to disprove duress once it's raised.
05-7053 +++$+++ 45591 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you have 21 States and how many circuits --
05-7053 +++$+++ 45592 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Six circuits and 29 States, Justice Scalia.
05-7053 +++$+++ 45593 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. I'm saying how many are on the other side?
05-7053 +++$+++ 45594 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ On the other side of the circuits, we count three; on the States, we count 14. Some States have not addressed the issue.
05-7053 +++$+++ 45595 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's -- that's sort of a horse race. I'm -- I'm not sure, even if I agreed with your theory, that -- that what the Constitution requires changes on the basis of an evolving common law. Of course, it can only change in one direction. Right? It can only change favorably to -- to your client, favorably to the defendant. It can't change to be more harsh to the defendant because the Constitution prohibits that.
05-7053 +++$+++ 45596 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would agree --
05-7053 +++$+++ 45597 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right? So -- so we have a one-way -- a one-way altering Constitution.
05-7053 +++$+++ 45598 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-7053 +++$+++ 45599 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But even -- even if I agreed with that, I'm not sure that, you know, 21 versus 14 is -- is an overwhelming demonstration of -- of the new common law.
05-7053 +++$+++ 45600 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, Justice Scalia, it's 29 versus 14. And -- but it's --
05-7053 +++$+++ 45601 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ 29 versus 14.
05-7053 +++$+++ 45602 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it's clearly a 2 to 1 majority in favor of placing the burden of persuasion on the Government.
05-7053 +++$+++ 45603 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. But are you making the argument that this number indicates a congressional intent and that what we ought to do is come up with a rule because Congress intended it? Or are you making the argument that yours is the better rule, and as a matter of common law, which -- which it is our responsibility to develop, we should see it your way? Which argument are you making?
05-7053 +++$+++ 45604 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We're -- we're basing our argument primarily on -- on the common law that has been developed in -- in this country since really Davis v. United States through the present and has -- has --
05-7053 +++$+++ 45605 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Jett, there's one piece of this picture that's different -- that distinguishes duress from, say, self-defense. If it's self-defense, you take a snapshot on the scene. You know exactly what happened. No one taking a picture of these gun purchases would have any idea of all of this. And the judge, when asked to give -- to allow the defense of duress, said, it's frankly a close call in my mind, but when it is a close call, better give it than not. Now, he thought that the defendant would have the burden of proof. Perhaps the judge would call that close question the other way if he thought he was saddling the prosecution with the ultimate burden of persuasion.
05-7053 +++$+++ 45606 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In my mind it would be -- if it's a close question, I don't think the burden of proof in that particular circumstance would make a difference because it still is -- because he would then be taking it away from the jury. And in my experience, judges are -- are not want to take the questions away from the jury, and they will provide the -- the jury instruction in a close case. And that would be the right thing to do because ultimately we want the jury to make that decision. But the -- but the judge does have a gatekeeping function in -- in a duress defense, so that a judge -- in any circumstance, if the judge decided that the evidence was insufficient to get to the jury, the judge can make that determination so that you have the trial court acting with the -- the -- to make sure that what the jury is going to hear is -- is an issue for which there is evidence. So I think that the gatekeeping function that the trial court would -- would prevent there from being -- juries making a decision on insufficient facts.
05-7053 +++$+++ 45607 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Jett, a thought occurred to me, by reason of your agreement, that -- that it's a one-way ratchet, that when the common law changes in the -- in the direction of favoring the defendant, it becomes the duty of the courts to allow that. But, of course, it can't change in the other direction because the Constitution would prevent it. You sort of agreed with that. But -- but if -- if you agree with that, how can you explain our -- our 1895 decision in Davis which held that the insanity defense had to be proved by the Government which was then overridden by a Federal statute. How could -- how could -- if -- if Davis was right about what the -- what the common law required, how could Congress possibly have changed that by a statute? I would assume that all of the basic elements of the common law are picked up in the Due Process Clause. Why wouldn't -- why wouldn't the necessity of -- of proving the mental element of a -- of a crime, even when that mental element is overcome by insanity, why wouldn't that have been embodied in the Due Process Clause so that the congressional statute would have been ineffective?
05-7053 +++$+++ 45608 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, two reasons. One, Davis was a common law case, and -- and subsequently in Leland v. Oregon, this Court said Davis was a common law case. And so this Court can decide the common law issue with respect to the Constitution.
05-7053 +++$+++ 45609 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. I'm not questioning whether we could do it. I'm questioning whether Congress could do it, whether Congress could overrule what we did in Davis. If Davis said that common law was that the Government has to prove -- disprove insanity, wouldn't that have been part -- become part of the Due Process Clause if it was the common law?
05-7053 +++$+++ 45610 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think -- I think that if it -- if it does become part of the Due Process, then obviously Congress cannot overrule it.
05-7053 +++$+++ 45611 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right.
05-7053 +++$+++ 45612 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If it simply becomes the common law -- the rule of -- of the Federal courts that this Court has -- has established based on its supervisory powers, then the Congress would be able to do that.
05-7053 +++$+++ 45613 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it makes me suspect that Davis was wrong.
05-7053 +++$+++ 45614 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the thing about Davis that even though the -- the insanity holding about Davis was overruled, the core holdings of Davis was not overruled. And one of the things that Davis said was that, again, to constitute a crime against human laws, there must be the vicious will and, secondly, the unlawful act. The other thing that Davis said, which was very significant, is that the plea of not guilty is not like in a civil case where there's confession and avoidance. What it does is it negates or it controverts all of the allegations of -- of the State, and so that it controverts the existence of each fact that the State has to prove. If it -- if it, indeed, does that and what duress does is it negates the evil -- the evil intent, then -- then the Government has got to prove that there's criminal intent. It's got to negate one of the elements that the Government has got to prove beyond a reasonable doubt. And that's -- that -- that's part of the holding of Davis, and the Congress has not affected that with its decision on the insanity defense.
05-7053 +++$+++ 45615 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask, if -- if you know, whether Congress has ever been asked to address this precise issue that we're debating today?
05-7053 +++$+++ 45616 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Congress has -- has never ruled on the duress defense. I think a few years ago, there -- there was a proposal to -- to amend the Federal Criminal Code, and in that particular -- it didn't pass but I think the result of that was that Congress just took out the duress provision and said that the courts should make the decision as to how that would be handled based on -- on all the -- the normal considerations that a court looks at in making those decisions. So that the Congress has had many opportunities to rule on duress. The Congress -- just like the Congress has said you have to have notice of alibi and just like they passed the -- this -- the rule about -- I mean, the statute about insanity. The Congress could have -- have abolished the duress defense. I don't think they could have constitutionally, but they could have passed a statute and spoken to that, but they've chosen not to. And I think what that tells us is that the Congress is probably aware of the common law and have chosen not to interfere with the development of the common law in this country.
05-7053 +++$+++ 45617 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about a defense that I was on drugs and -- and didn't know what I was doing because of that and couldn't form the requisite intent? Does the Government have to disprove that as well?
05-7053 +++$+++ 45618 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If that is a defense that is recognized by -- by the common law or -- or by statute, then the Government would have to do that if that particular defense --
05-7053 +++$+++ 45619 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How is the Government -- how would the Government do that?
05-7053 +++$+++ 45620 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-7053 +++$+++ 45621 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ A person just says, I was -- I was on, you know, PCP or whatever and -- and I couldn't form the requisite intent.
05-7053 +++$+++ 45622 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the Government could do that much the way they do like in an entrapment defense. In an entrapment defense, the Government has to -- once there's entrapment shown, the Government has to disprove the predisposition of the defendant or prove the defendant has predisposition. And so --
05-7053 +++$+++ 45623 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that's based on the defendant's -- the prosecution's conduct. The Government's conduct in entrapment concerns how the Government behaved.
05-7053 +++$+++ 45624 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, it does but it still -- that case still deals with somebody overriding the will of the defendant, the Government imposing its own will on the defendant. In that regard --
05-7053 +++$+++ 45625 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if the Government is out there trying to achieve that result, it's quite different from the Government having nothing to do --
05-7053 +++$+++ 45626 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we -- we contend that it's still the same because it's a third party, whether it's the Government or somebody else, who's overbearing the will of the accused. And if there's no other questions, I'd like to reserve the balance of my time.
05-7053 +++$+++ 45627 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, counsel. Mr. Gornstein.
05-7053 +++$+++ 45629 +++$+++ FALSE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: For three reasons, the burden of proving duress should be on the defendant, and the Government should not be required to disprove duress beyond a reasonable doubt. First, duress is an affirmative defense that excuses what would otherwise be serious criminal conduct. When the Government proves that a defendant has engaged in criminal conduct and has done so with the mens rea specified by the crime, it is fair to require the defendant to prove that duress excuses that criminal conduct, so that here, the Government proved that Petitioner knew she was lying when she filled out the forms and that she knew it was unlawful for her to receive firearms.
05-7053 +++$+++ 45630 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So there may be cases where the nature of the mens rea required would require the Government to disprove duress.
05-7053 +++$+++ 45631 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There could conceivably be such cases, Mr. Chief Justice.
05-7053 +++$+++ 45632 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The sort of crimes where -- where your culpability depends on your motive. Right?
05-7053 +++$+++ 45633 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if you had a crime, for example, that said someone who does something while not under -- acting under duress, that would be an obvious example. But there are --
05-7053 +++$+++ 45634 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It would be an easy example.
05-7053 +++$+++ 45635 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would be an easy example. (Laughter.)
05-7053 +++$+++ 45636 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But there -- there are --
05-7053 +++$+++ 45637 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Good catch.
05-7053 +++$+++ 45638 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What about a -- you know, a hate crime, a bias crime, you know, an act of violence done with a particular motive or intent? And the -- and the suggestion is I didn't do this because of a particular motive. I did this because they had a gun to the head of my children.
05-7053 +++$+++ 45639 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. In -- in that kind of situation, the facts that go to duress could also go to undermining the proof of the motive in that case, and in that situation, the Government always has to prove the element of the offense beyond a reasonable doubt. But if the defendant wants to add to that a duress -- a specific duress defense, then the burden of proof would be on the defendant to prove duress. Now, normally in that --
05-7053 +++$+++ 45640 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The Government wouldn't -- wouldn't have to disprove duress in the hate case. It would just have to prove hate.
05-7053 +++$+++ 45641 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
05-7053 +++$+++ 45642 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And to the extent that duress undermines that, it would be a defense considered by the jury on the hate question.
05-7053 +++$+++ 45643 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Justice Scalia. Now, the --
05-7053 +++$+++ 45644 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How does self-defense fit into this equation?
05-7053 +++$+++ 45645 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Government's position is that on self-defense, the burden of proof is on the defendant, but it recognizes that there are important distinctions between self-defense and duress that could allow the court to reach different conclusions about the two defenses. In addition to the point that's already been made about the degree of factual overlap between self-defense on the one hand and duress on the other on the basic crime, there are three additional considerations. One is that the -- the circuits and the States are virtually uniform on self-defense, whereas there is a significant division of authority on the question of duress. Second, self-defense has always been a more favored defense because when the defendant acts legitimately in self-defense, he's not harming an innocent person. But when a defendant is actually under -- acting under duress, that defendant is still endangering or harming innocent third parties. And the third reason is that there's always been a significant degree of judicial skepticism about claims of duress, but there's never been that same kind of judicial skepticism about self-defense. So while we do take the position that the burden of proof is still on the defendant, the Court could take a different view on that issue and agree with us on duress.
05-7053 +++$+++ 45646 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why is the number of decisions -- number of States that have gone one way or -- or the other on the issue relevant? If it's not an Eighth Amendment question --
05-7053 +++$+++ 45647 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I -- I think it's just a Federal common law question here, and it's only as good as the reasoning that underlies it. But when you start to see a uniform body or a consensus of opinion on one side of the equation, then there -- it's much more likely that there are certain reasons that are underlying that justify it.
05-7053 +++$+++ 45648 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What -- what if you're a judge like me who -- who thinks that any significant element of -- of the criminal law, when the Due Process Clause was -- was adopted, remains in effect and it doesn't change with the times as you seem -- as your last comment seems to have said? What do I do with a case like Davis? Not a case like. What do I do with Davis? Davis tells me that this was the common law when the Due Process Clause was adopted.
05-7053 +++$+++ 45649 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't think Davis was taking the position --
05-7053 +++$+++ 45650 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No?
05-7053 +++$+++ 45651 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that this was the common law when the Due Process Clause was adopted. Davis took the position that the common law had evolved to the point where on the specific defense of insanity, that this was the result that should follow, that there should be a burden of production on the defendant, and then the Government should have to disprove insanity beyond a reasonable doubt. But Davis was not a constitutional holding.
05-7053 +++$+++ 45652 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Oh, I know it was not a constitutional holding, but --
05-7053 +++$+++ 45653 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And it wasn't a holding about what --
05-7053 +++$+++ 45654 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'll have to go back and look at it.
05-7053 +++$+++ 45655 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the early common law was --
05-7053 +++$+++ 45656 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
05-7053 +++$+++ 45657 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- because it's clear that under -- at the time of the Constitution, the burden of proof on all of these defenses was on the defendant. And that was also true at the time the Fourteenth Amendment was adopted. The burden of proof was on the defendant. There was some evolution after that. Now, the -- the other thing I wanted to talk about with respect to Davis is it was based on the understanding that the Court had about the relationship between the insanity defense on the one hand and the mens rea element of the crime on the other hand. And here, there's simply no corresponding overlap. Whether or not the Petitioner acted under duress, she knew she was lying when she filled out the forms, and she knew it was unlawful for her to purchase firearms. So there's simply no relationship between the duress defense and the mens rea element of these crimes. Congress has also overruled Davis by statute, and we don't think it would be appropriate for the Court to extend Davis to a new defense when Congress has rejected it with respect to the only defense that it applied to. And -- and there's -- and certainly Congress acted constitutionally in overruling the Davis decision under this Court's decision in Leland and in other cases like Martin and Patterson, which say that there is no constitutional problem in putting the burden of proof on the defendant for established common law affirmative defenses. And --
05-7053 +++$+++ 45658 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is -- is -- I didn't mean to cut you off.
05-7053 +++$+++ 45659 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
05-7053 +++$+++ 45660 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I was -- you have a tougher argument, don't you, when you -- when you face the comparison between duress here and entrapment because it's -- it's quite true in -- in entrapment you're talking about the actions of a -- of a third party which is causing something, but the -- the ultimate determination that has to be made is a determination about the -- in effect, the -- the inclination, the willingness, the readiness of the defendant to have committed the act. And -- and yet, I take it, it's -- it's assumed that so far as the entrapment defense is concerned, the burden is on the Government. So if the burden is on the Government in what is a -- a somewhat difficult issue for the Government to carry the burden on in entrapment, wouldn't coherence suggest that a fortiori it ought to be on -- on duress?
05-7053 +++$+++ 45661 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, and here's the reason. The -- the burden of proof on entrapment is actually on the defendant initially.
05-7053 +++$+++ 45662 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the burden of going forward with evidence.
05-7053 +++$+++ 45663 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. The burden of proof on the element of inducement. That is, there are two elements.
05-7053 +++$+++ 45664 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You mean the burden of persuasion.
05-7053 +++$+++ 45665 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Burden of persuasion on the element of inducement is on the defendant. The defendant has to prove more likely than not that the Government induced this crime in the sense that it took actions that are likely to override what a innocent person would have done. At that point, the burden shifts to the Government to show that this particular defendant was predisposed. Now, that's consistent with background common law principles under which, once it's shown that one party has been engaging in wrongful conduct, i.e., inducement, then the burden shifts to the wrongdoer to show that its conduct did not have its likely effect in that case. And that's why the Government then has to come back and show that with respect to this particular individual, that particular individual was predisposed, even though we took wrongful actions that would have induced an innocent person to do this.
05-7053 +++$+++ 45666 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You could almost argue that the other way. I mean, it -- it seems to me on predisposition that the defendant knows more about it than the Government does.
05-7053 +++$+++ 45667 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that's true, but again, if it was just a matter of who has access to the relevant evidence, then that would -- the burden should have been on the defendant, that it wasn't just a matter of that. There was this other principle which is that the -- there was already a showing -- there's already a showing that the Government has taken wrongful action to induce the crime. And that's why the burden shifts to the defendant -- to the Government to show that this particular person wasn't predisposed.
05-7053 +++$+++ 45668 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm not sure what the criteria are that I have to follow -- that we have to follow in deciding the case. Just count up all the cases and --
05-7053 +++$+++ 45669 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't think that the Court --
05-7053 +++$+++ 45670 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Let me ask -- let me ask you this. Is -- is there any evidence that -- that we can take account of, commentary, law reviews, to show that the Government has difficulties in -- in meeting a duress defense?
05-7053 +++$+++ 45671 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- there is nothing that I can point you to that shows there is an empirically evidence that the Government is not going to be able to deal with this burden. But what I would say to you is that you should take the same approach that the Court took in The Diana case many years ago, which is it did not want to establish a regime that invites manufactured claims.
05-7053 +++$+++ 45672 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why is this worse in that respect? And lots of things in the case that you have to prove may be hard to prove because it requires finding out what someone said to the defendant over the telephone, what happened 4 years ago in a room where the defendant was the only one now alive present. There are lots of cases like that. Traditionally in the law, I take it, it's been that most instances where the defendant excuses his conduct on the ground he wasn't morally culpable, mistake, accident, self-defense. Entrapment? Not -- that's a different kind of ground. This one? Evidence mixed. But you have to prove lots of things where it's really in the hands of the defendant, and the defendant saying I'm so innocent because I'm not morally culpable. I was asleep. I was -- you know, we can imagine. So I don't see why this is different.
05-7053 +++$+++ 45673 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer --
05-7053 +++$+++ 45674 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that's going back to Justice Kennedy's question. I would look -- I guess if we're supposed to get the better rule, the first place I'd look is what did the Model Penal Code think. They think you should have the burden. Then I think has this turned into a practical problem in the 29 States that have had it for 20 to 40 years. And you say we don't have any evidence to that effect. Now, I've listed about four things here that I'd like your response to.
05-7053 +++$+++ 45675 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let -- let me start with -- I go back to The Diana case because I think the way the Court approached the question in The Diana case is the way this Court should approach it because it dealt with the same kind of defense, necessity. And what it wanted -- it said this is a defense where there is a there is a big danger that this can be manufactured in a way that it is difficult to disprove, and we are going to establish a regime that doesn't invite manufactured claims and that doesn't make it difficult for the Government to disprove something beyond a reasonable doubt. We have a choice here, and that's not the regime we want to establish. We want to establish a regime that makes it more unlikely that manufactured claims are going to come forward and that make it -- makes it more unlikely that if such claims do come forward, the Government isn't going to be able -- unable to disprove them beyond a reasonable doubt, compromising the entire statutory scheme.
05-7053 +++$+++ 45676 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if we're thinking of things logically, logically you're right. I can see that this is in the hands of the defendant. But I've wondered why hasn't this turned into evidence of a problem in the 29 States. And the following occurred to me, which I'll put to you to see what your reaction is. The defense has to do something if they are going to put duress in issue. They have to get the defendant to testify. So the prosecutor has something that the prosecutor doesn't ordinarily get. He has that defendant right on the stand, ready for jury evaluation. And that is something a -- a prosecutor may want, and it's something the defense lawyer may not want. He has to choose.
05-7053 +++$+++ 45677 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
05-7053 +++$+++ 45678 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So when you get into the practicalities of it, I see things both ways, and I'd like to find some evidence of what's actually happened.
05-7053 +++$+++ 45679 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, take a recent case in which a defendant transported drugs from Mexico into the United States, and he claimed that he did that because someone threatened his family members in Mexico. Now, that's a case that somebody who has deliberately violated the law would find relatively easy to manufacture that defense. Yet, it would be very difficult for the Government to disprove that beyond a reasonable doubt. Yes, but if the burden of proof is on the defendant, then the Government can do what you were talking about. It can cross-examine that person and it can persuade the jury --
05-7053 +++$+++ 45680 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If -- if does that --
05-7053 +++$+++ 45681 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If he does that --
05-7053 +++$+++ 45682 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He has a few other things, the prosecutor. He has that defendant on the stand. There was an implication that you were in Chicago at the time.
05-7053 +++$+++ 45683 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If --
05-7053 +++$+++ 45684 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where you on the night of such and such?
05-7053 +++$+++ 45685 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are -- there are other --
05-7053 +++$+++ 45686 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that's an advantage for the prosecutor.
05-7053 +++$+++ 45687 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true, Justice Breyer, but what I'm saying is, that it's one thing to be able to persuade the jury through cross-examination, that that is more -- not more likely than not. It's quite another thing to persuade the jury in that kind of situation that that defense is not true beyond a reasonable doubt.
05-7053 +++$+++ 45688 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Of course, in the vast majority of criminal cases, there's no doubt that the person did the crime. And so the -- the benefit to the Government is just carrying coals to Newcastle. The -- the defendant would plead guilty but for the fact that he has a plausible coercion defense, and so he puts that coercion defense before the jury, and oh, sure, he does let the -- the Government cross-examine him. But the Government really doesn't need his cross-examination in the ordinary case. Isn't that right?
05-7053 +++$+++ 45689 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the ordinary case.
05-7053 +++$+++ 45690 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And I -- I guess the only way we could really tell what the consequences are, as Justice Breyer would -- would like us to be able to tell, is to know how many people who have gotten off on the basis of this defense have gone on to continue a life of crime. And -- and we don't have any stats on that --
05-7053 +++$+++ 45691 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do not have any statistics. And, of course, when -- when somebody gets off, it results in -- in an acquittal and so we don't get published decisions about that.
05-7053 +++$+++ 45692 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ We never know the consequences of our decisions, by and large, do we? (Laughter.)
05-7053 +++$+++ 45693 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's why this is problematic.
05-7053 +++$+++ 45694 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure I'll answer that.
05-7053 +++$+++ 45695 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, I don't have the experience as a criminal lawyer that allows me to say whether it would be one way or the other. You're saying -- and I'll repeat that. Is there anything at all I could look to try to figure this out? Because I think it is a question we're supposed to get the better rule. What did the Model Penal Code authors do? Did they take testimony --
05-7053 +++$+++ 45696 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the Model Penal Code takes the position that every defense, affirmative defense, goes on the Government, and that's just a policy judgment --
05-7053 +++$+++ 45697 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do --
05-7053 +++$+++ 45698 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did they have evidence or did they have -- take testimony? Did they go around trying to find out how prosecutors and defense attorneys -- you know. I don't know.
05-7053 +++$+++ 45699 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, I do not know. I do know it is based in -- in its explanation of its rule for all affirmative defenses, which would include insanity, which Congress has rejected --
05-7053 +++$+++ 45700 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Doesn't that come from an underlying principle that your position is not entirely consistent with, that is, that the defendant is presumed innocent? So it's not as Justice Scalia may have suggested that, well, he would plead guilty, but we're going to let him -- we presume that the defendant is innocent. That's why the prosecutor has to have the burden on all issues. I thought that was the underlying principle.
05-7053 +++$+++ 45701 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the burden of -- the presumption of innocence, though, only applies to the essential elements of the crime under this Court's decision in In re Winship, et cetera, and not -- it doesn't apply to affirmative defenses, as the Court has consistently held in Martin and in Patterson and in Leland. That is, the -- it can be constitutionally -- you can put the burden of proof on the defendant to prove an affirmative defense, and the Constitution has nothing to say about that. The presumption of innocence goes to all the things -- the essential elements of the crime. And here, Petitioner benefited from the presumption of innocence. The Government had to prove that she filled out those forms, that she filled them out with falsities, and that she knew she was lying when she filled out that -- those forms. It had to prove that she received those guns and that she knew that it was unlawful for her to receive those guns. And it had to prove all of those things beyond a reasonable doubt. Now, on the position of the States, a significant number of States are on --
05-7053 +++$+++ 45702 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Before you get there, what -- roughly speaking, how much of the Model Penal Code has Congress enacted into the criminal --
05-7053 +++$+++ 45703 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think the Congress has enacted the -- the Model Penal Code. This -- this Court sometimes looks to the Model Penal Code as one source of what is -- of -- of thought out there, but that's all.
05-7053 +++$+++ 45704 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Who -- who develops the Model Penal Code? Is that the American Law Institute that does that?
05-7053 +++$+++ 45705 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Yes.
05-7053 +++$+++ 45706 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Which once upon a time purported to simply be embodying the -- the general law, the common law. But it doesn't even purport to do that anymore.
05-7053 +++$+++ 45707 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. It doesn't -- it doesn't purport it. And in fact, in this particular case --
05-7053 +++$+++ 45708 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There are a lot of law professors involved in it, aren't there?
05-7053 +++$+++ 45709 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm sure. (Laughter.)
05-7053 +++$+++ 45710 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In this particular case the Model --
05-7053 +++$+++ 45711 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Some judges too. Right?
05-7053 +++$+++ 45712 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- the Model Penal Code said that it was expanding the common law defense of duress to a new place where it had never been. So it's not surprising that it would also have a different burden of persuasion than the traditional burden of persuasion. Now, on -- on the practice of the States, the Court has never taken the view that it is just going to do a nose count and figure out what the best rule is based on the practice of the States.
05-7053 +++$+++ 45713 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ When was this -- the underlying statute at issue here enacted?
05-7053 +++$+++ 45714 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not remembering the -- the exact -- I think it's in the '70's, though.
05-7053 +++$+++ 45715 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, would we -- would our -- would our nose count be today or would our nose count be when the criminal statute was --
05-7053 +++$+++ 45716 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Mr. Chief Justice, we don't think that the Court should do that kind of nose counting based on whether a statute was enacted in 1800, 1850, 1900, 1950 and potentially have different rules for each statute. We think that the Court should look at the entire --
05-7053 +++$+++ 45717 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, why not? Isn't it realistic to assume that Congress looked at the state of the law at the time it's passing a statute and presumably adopted what was the prevailing view?
05-7053 +++$+++ 45718 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think it's right to say that it adopted the prevailing view unless it was a consensus view. I don't think, though --
05-7053 +++$+++ 45719 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, a consensus view. It would still be the time of the enactment of the statute is what would be relevant, I would think.
05-7053 +++$+++ 45720 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I think the -- I think that the problem with that approach is to have a completely different rule for all the different statutes based on when they were enacted is unmanageable and impractical. And the Court has said the same thing in the context of mens rea requirements. The Court doesn't import into statutes the mens rea requirement that was in vogue at a particular time. What it does now is it imports into all criminal statutes that do not specify a mens rea requirement -- it simply imports in a knowledge requirement, that there has to be knowing action. And that would be true regardless of whether it's an 1800 statute, an 1850 statute, a 1900 statute, or a today statute. And I think that the reason for that is one of practicality and administrability which the Court has talked about, in fact, in -- in other cases. The Bailey case.
05-7053 +++$+++ 45721 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Gornstein, just out of curiosity, of the 29 States that have the different rule, in how many of those States was the different rule adopted legislatively and in how many States was it pronounced by the State supreme court?
05-7053 +++$+++ 45722 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I'm not sure of the exact breakdown, but I think that there are -- there are possibly something like 10 or so States on -- that have adopted it by statute, but I'm not sure of the exact number of that -- on that.
05-7053 +++$+++ 45723 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is -- is --
05-7053 +++$+++ 45724 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Maybe your -- your friend on the other side knows.
05-7053 +++$+++ 45725 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is the test proposed by the Petitioner that -- that you have to prove non-duress by beyond a reasonable doubt?
05-7053 +++$+++ 45726 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, after the defendant --
05-7053 +++$+++ 45727 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And your test is that the defendant would have to prove it only by clear and convincing evidence?
05-7053 +++$+++ 45728 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. More likely than not, the preponderance of the evidence standard.
05-7053 +++$+++ 45729 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ More likely. More likely.
05-7053 +++$+++ 45730 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ More likely than not. And that -- the -- the Court in The Diana case, actually in the context of forfeiture, thought that a beyond -- the defendant should have to show it beyond a reasonable doubt. But we -- and we -- we would take a step back from that, consistent the practice in the circuits that have put the burden of proof on the defendant and the States that put the burden of proof on the defendant and the burden of proof that -- that Congress has specified when it has thought about what the burden of proof should be outside the context of insanity --
05-7053 +++$+++ 45731 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you think a State could put a burden on the defendant beyond a reasonable doubt for entrapment, duress, insanity?
05-7053 +++$+++ 45732 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For all of the affirmative defenses, I think that's the -- the Leland decision would allow a State to do that. Leland said that you could put -- require the defendant to show beyond a reasonable -- I'm sorry. Is it Leland?
05-7053 +++$+++ 45733 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Clear and convincing.
05-7053 +++$+++ 45734 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Beyond a reasonable doubt and so that there is -- there would be no constitutional problem in putting a -- a burden beyond a reasonable doubt on the duress defense either. And in fact, this is a defense that Congress could -- could eliminate altogether, if it wanted to, and just take the position that it's going to -- these -- this kind of excuse would be considered along with all other kinds of excuses in either making a charging decision or -- or making a sentencing decision. There is no constitutional imperative that there be a duress defense at all.
05-7053 +++$+++ 45735 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What about the insanity defense?
05-7053 +++$+++ 45736 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The same is true of the -- the insanity defense that the Congress could take the position. It hasn't taken that position, but it could take the position, that this is a defense that will be considered, along with other excuses, in -- by prosecutors as they make charging decisions and by sentencing judges as they make sentencing judgments.
05-7053 +++$+++ 45737 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What about self-defense?
05-7053 +++$+++ 45738 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the same would be true of self-defense, again, that the -- the Government -- no State has ever taken that position and the Congress hasn't taken that position, and it would be very much against all the traditions that are -- that we have. But if a State made a policy judgment to that effect, that this is the policy -- we want to encourage people to retreat, we do not want to encourage people to take the law into their own hands, but what we will do is we will recognize this and we are sure our prosecutors are going to recognize it, we're sure our judges are going to recognize it as a -- a mitigating factor. And that would be constitutional.
05-7053 +++$+++ 45739 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Gornstein, there are some old cases that draw a distinction between justifications and excuses. And you carefully use the words excuse to describe that defense. Did you do so having in mind that distinction or just as a loose description of the -- of the defense?
05-7053 +++$+++ 45740 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that it -- it fits the defense and that you can draw a distinction between excuse and justification, but I don't think the distinction ultimately matters whether you call it an excuse or justification. It's still the burden of proof should be on the defendant and it shouldn't -- the nomenclature shouldn't matter.
05-7053 +++$+++ 45741 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about mistake?
05-7053 +++$+++ 45742 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mistake is --
05-7053 +++$+++ 45743 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought it was a deer.
05-7053 +++$+++ 45744 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Mistake is something that negatives the mens rea requirement of knowledge. So, of course, the Government has to prove knowledge beyond a reasonable doubt, and if somebody has mistake, then the Government isn't going to be able to satisfy its burden of proof beyond a reasonable doubt.
05-7053 +++$+++ 45745 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And would you distinguish between instances of duress where it may a negative mens rea and instances where it may not?
05-7053 +++$+++ 45746 +++$+++ TRUE +++$+++ MR. GORNSTEIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if it does negative mens rea -- and this is infrequent, but if it does, then the Government, of course, has to prove its element of the offense beyond a reasonable doubt. And if duress evidence undermines the Government's ability to do that, then the Government hasn't proven its case beyond a reasonable doubt. If the Court has no further questions.
05-7053 +++$+++ 45747 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Gornstein. Mr. Jett, you have 4 minutes remaining.
05-7053 +++$+++ 45749 +++$+++ FALSE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To answer Justice Scalia's question, a quick count, it looked like that there were perhaps three that we could count, but it was a quick count. We can't tell whether all those decisions were based on State statutes or not. The gun control statute was passed in 1968, and at the time, the Model Penal Code had been passed in 1962, and the Eighth Circuit had said that the law was and there is no doubt that the defendant does not have the burden of proving his duress defense. So we believe that at the time the statute passed, that the clear common -- the clear law in the country was that the burden was on the Government to disprove duress.
05-7053 +++$+++ 45750 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And three -- three was what? Three States that have adopted it --
05-7053 +++$+++ 45751 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The statute. By statute.
05-7053 +++$+++ 45752 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ By statute.
05-7053 +++$+++ 45753 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Now, the Government talks about that the defendant can manufacture a defense, but you can do that in any case. You can manufacture a defense for a -- for a plea of not guilty, as to -- as to why you're not guilty. So it really doesn't make a difference. It would be the same thing for self-defense. In this particular case, instead of Ms. Dixon having bought the guns, if she had gotten a hold of one of Mr. Wright's guns and shot him, she would have had a self-defense, and if she had done that, then the burden of proof would have been on the Government to disprove self-defense beyond a reasonable doubt. But because she did the less blameworthy thing, that is, that she bought guns instead of shooting somebody or killing somebody, she is disadvantaged in -- in the courtroom. Because -- because she raised duress, she then had to prove her defense by a preponderance of the evidence. And it's simply not --
05-7053 +++$+++ 45754 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm not sure it's less -- less blameworthy. I mean, if somebody has a gun to the head of my child and I have a choice between doing a criminal act that he wants me to do and shooting him, you think it's -- the less blameworthy is to go do the criminal act?
05-7053 +++$+++ 45755 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think rather than -- than to kill somebody it certainly would be.
05-7053 +++$+++ 45756 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I wouldn't kill him. I'd just wound him. (Laughter.)
05-7053 +++$+++ 45757 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia, I understand the sentiment, but she was -- she was threatened by somebody with -- with a gun and her children were threatened. And she might have killed him. She might have shot him. In either case, though, she is disadvantaged by the law. She would have been better off if she had shot him or killed him, and it's simply not consistent that she does a less blameworthy action, buying guns where nobody dies, her children didn't die, there were no funerals for her, no funerals for her children, no funerals for the abuser, nobody dies, but she's disadvantage because she doesn't --
05-7053 +++$+++ 45758 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you take into account that this was not something that occurred at once? This was a long-term relationship. There were many opportunities in which she might have, when her children were with the grandmother, say, gone to the police.
05-7053 +++$+++ 45759 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This was a long-term relationship. But what happened in this particular case is the level of violence escalated substantially immediately before the gun shows. The violence had been bruising where you couldn't see it. Suddenly it -- it escalated with a gun in the face and a split lip and a sudden threat to the children that we're going -- if I kill you, I'm going to have to kill your children. So even -- even though it had gone on for a while, it suddenly changed, and her state of mind suddenly changed because what was most important to her was the safety of her children. And so she did what she thought she had to do in order to save her children and keep them safe. And it simply would not be fair that if she had done the less blameworthy action, that she has -- is more advantaged in court. So you can't square the way duress is treated and the way self-defense is treated.
05-7053 +++$+++ 45760 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can the judge ask the defendant to produce evidence that there was no possibility to go to law enforcement officials, and if she does not produce that evidence, then refuse to give the defense?
05-7053 +++$+++ 45761 +++$+++ TRUE +++$+++ MR. JETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The judge could do that if he felt that that was -- was appropriate for one of the elements. The -- one of the elements is you didn't have an -- a reasonable opportunity to not do the crime. In her mind, she did not believe she did because she believed that there was somebody at home with a gun threatening her children. And I'm out of time. Thank you.
05-7053 +++$+++ 45762 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Jett. The case is submitted.
05-7058 +++$+++ 45766 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Jones versus Bock, and Williams versus Overton. Mr. Andre.
05-7058 +++$+++ 45768 +++$+++ FALSE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: In these three cases, each of the three petitioners filed administrative grievances with the Michigan Department of Corrections. The Michigan Department of Corrections conducted investigations and issued final decisions on the merits of petitioner's grievances. Nevertheless, a year and a half later, each of the petitioner's complaints was thrown out of federal court without leave to amend because petitioners failed to satisfy on of the Sixth Circuit's judge-made corollaries to the PLRA's exhaustion requirement. None of those three corollaries find any meaningful support in the Federal Rules of Procedure, in fact they contradict the federal rules. Nor do they find any support in administrative law or habeas law, the two areas of law to which this Court looks for guidance in interpreting administrative litigation and format. Finally, the overwhelming majority of the circuits that have considered these questions have rejected them all. I'd like to begin with the heightened pleading rule that the Sixth District applied here. The Federal Rules of Civil Procedure require a plaintiff to simply provide a short claim statement of the basis on which his or her claim will lie. The Federal Rules of Civil Procedure do enumerate certain kinds of allegations that a plaintiff must plead with specificity, those are enumerated in Federal Rule of Civil Procedure 9(c), but exhaustion is not one of them. Accordingly --
05-7058 +++$+++ 45769 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose the district court finds that in its experience, 80 percent of the claims are ones that are unexhausted, just assume that. And the district court said, the only way I can figure out the good 20 percent from the 80 percent that are going to ultimately be dismissed is to have a motion for a more definite, an order for a more definite statement, because I'll do it sua sponte under 12(e), I think. Can the district court do that?
05-7058 +++$+++ 45770 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that would be correct, and that would be consistent with the Court's habeas jurisprudence.
05-7058 +++$+++ 45771 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The court could ask for a pleading which set forth the facts of exhaustion?
05-7058 +++$+++ 45772 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that's true.
05-7058 +++$+++ 45773 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then why isn't this -- this is just the same if the court has said, you know, in order to make our screening function efficient, we just have to know about exhaustion.
05-7058 +++$+++ 45774 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first of all, when Congress created the various screening provisions in the PLRA, it noticeably omitted exhaustion. It clearly had exhaustion in mind when it enacted the PLRA. The term "exhaustion" appears in 42 U.S.C. 1997 --
05-7058 +++$+++ 45775 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How about, what, if you concede the district court could do it in individual cases or in most cases, why can't the Sixth Circuit do it? That's my question.
05-7058 +++$+++ 45776 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what sets the Sixth Circuit's rule apart from I think the hypothetical you propose, and also from this Court's habeas jurisprudence is that in both of those scenarios the plaintiff, the prisoner, is given a chance to respond. In the Sixth Circuit, if they don't they don't satisfy the heightened pleading rule at the minute that they file their initial complaint, they are out. There is no leave to amend, and that's what happened in this case. In Petitioner Jones' case, he filed the complaint and he actually did allege that he exhausted his administrative remedies. He said: I exhausted my administrative remedies, I filed my step one grievance on this date, I received a denial on that date, and he went down the list through all three steps.
05-7058 +++$+++ 45777 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The briefs point out that a number of district courts have form complaints that are often used in these cases and that these forms call on the prisoner-plaintiff to address the issue of exhaustion. Now, do you think there's something wrong with those forms, and if a prisoner fills out the form and reveals in filling it out that a claim was not exhausted, is it improper for the district court at the screening stage to dismiss the case?
05-7058 +++$+++ 45778 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect to the form, I don't think that the form is improper, but I think it would be improper for a court to dismiss the prisoner's case if the prisoner failed to fill out the section of the form that asks him about exhaustion because exhaustion is an affirmative defense in both administrative law and habeas, and there's no indication in this statute that Congress --
05-7058 +++$+++ 45779 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If it's an affirmative defense, then why is it -- why is it proper for a district court, for a district court, to have a form that calls on the plaintiff to negate the affirmative defense?
05-7058 +++$+++ 45780 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the district court can ask the plaintiff pretty much whatever the district court likes. But whether the district court could, could dismiss a case for failure to comply, failure to respond to that question, that's another matter.
05-7058 +++$+++ 45781 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, we know under the statue they can dismiss a case because it's frivolous, right?
05-7058 +++$+++ 45782 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
05-7058 +++$+++ 45783 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Regardless of the substance of the claim on the merits, if you know that you've just ignored the exhaustion requirement isn't that a frivolous claim?
05-7058 +++$+++ 45784 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would certainly concede that if it is clear on the face of the complaint that a prisoner has not exhausted his or her administrative remedies then that claim can be dismissed. I guess the way it would operate -- and I haven't seen a case like this -- but it would be where a prisoner says, I didn't exhaust my administrative remedies and I have no excuse for failing to do so, but please, district court, please take mercy on me. And in that situation the district court could say, there's absolutely no way you can possibly prevail on the merits, so your claim --
05-7058 +++$+++ 45785 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Probably the reason they do this is that there are lots and lots of claims by prisoners in Federal courts that are hard to decipher. They don't know what it's about. They don't want to put the defendant to the burden of coming in in every single complaint when it's quite a good probability it's about nothing. That's the kind of reasoning that would lead to a rule like this. So -- and then you have the statute and the statute says indeed there's a special power here to dismiss if it's frivolous or it doesn't state a claim or malicious. So why isn't this just an exercise of the Sixth Circuit's or a court's ordinary subsidiary rulemaking powers? They're trying to figure out how to manage their docket.
05-7058 +++$+++ 45786 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The problem is that it conflicts with Federal Rule of Civil Procedure Rule 8. And as this Court this repeatedly said, including as recently as last term in Hill v. McDonough, the Court will not impose a heightened pleading requirement absent an amendment to the Federal Rules of Civil Procedure.
05-7058 +++$+++ 45787 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So your point would be that they can do this if we amend the Federal Rules. If it's a problem take it to the Rules Committee?
05-7058 +++$+++ 45788 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's correct. I think that's correct, but if it --
05-7058 +++$+++ 45789 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If we amended the rules that way, in effect it would no longer be an affirmative defense. I mean, by definition an affirmative defense gets raised by the defendant and so on, so if we amended the Federal Rules in practical terms it would be like adding an element to the claim.
05-7058 +++$+++ 45790 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Or if the Court were to add PLRA exhaustion to the Rule 9(c).
05-7058 +++$+++ 45791 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But Rule 8 and the normal rules weren't addressed to the unusual situation under the PLRA where the district court has an affirmative obligation screen on its own before the defendant even gets involved. So if in fact, just to follow on Justice Kennedy's hypothetical, 80 percent of the cases have this exhaustion problem, why isn't this a reasonable means of facilitating the screening obligation?
05-7058 +++$+++ 45792 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It may be a reasonable means, but that doesn't necessarily mean that it's permissible, because Congress had exhaustion in mind when it enacted the PLRA and noticeably absent from all the PLRA screening provisions is the term "exhaustion."
05-7058 +++$+++ 45793 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but you just told me earlier that if it was a case in which exhaustion is required and not done that would be a frivolous claim, and the statute does refer to frivolous claims. So the district court or the Sixth Circuit has just said, we know that in a large number of cases they are going to be frivolous because they have ignored the exhaustion requirement, and we just want to try to find out which those cases are to fulfill the screening obligation, which takes this out of the normal Rule 8 type of case.
05-7058 +++$+++ 45794 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, I think I understand. I think it goes back still to the fact that there's not a clear Congressional expression to take these cases out of the Federal Rules. In Califano v. Yamasaki we believe is instructive on that point. In in that case the Secretary of the Department of Health Education and Welfare had argued that Section 205(g) of the Social Security Act, which used the term "individual," somehow took those, those judicial review procedures, out of the operation of Federal Rule of Civil Procedure 23. This Court said: No, we cannot read the word "individual" as such a clear expression. It may have been Congress's policy to have individual claims be addressed one by one, but you have to find that clear expression in the statute and that clear expression is not here.
05-7058 +++$+++ 45795 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what about 1997(e) and (g), which prohibits, seems to prohibit a case from getting beyond the complaint, not even to the answer unless the district court finds that the plaintiff has a reasonable opportunity to prevail on the merits. Doesn't this clearly take this out of the normal pleading procedures?
05-7058 +++$+++ 45796 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Justice Alito. We have exhaustively researched that language, the reasonable opportunity to prevail on the merits 1997(g), and the only courts that construe that language are courts construing 1997(e) and (g), and they have universally found that that provision simply summarizes the other screening provisions' terms, so, frivolous, malicious, fails to state a claim, or seeks -- from an immune defendant. And we can't really think of what, what else Congress would have had in mind because while it's like the preliminary injunction standard it makes no sense that Congress wanted a prisoner to satisfy a preliminary injunction standard before requiring prison officials to respond.
05-7058 +++$+++ 45797 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would your answer be different if amendment were allowed? I mean isn't the problem in substance here, and I don't mean to dismiss your arguments from the rules, but leaving the argument from the text of the rules aside, it wouldn't be a real problem here in substance if the circuit bar allowed amendment, would it?
05-7058 +++$+++ 45798 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think if the circuit were to, Sixth Circuit were to allow amendment it would certainly mitigate the situation. It's our position that the screening provisions can't overrule Federal Rule of Procedure 15 either, but the problem we see with even doing away with the no amendment rule, but keeping in place the heightened pleading rule, is that we are talking about prisoners. Prisoners who don't have a lot of access to materials. They may have -- legal materials. They may have great difficulty holding on to their, their formally filed grievances.
05-7058 +++$+++ 45799 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Andre, didn't you have in one of that's cases that the exhaustion was spelled out by the defendant, there was a complaint that alleged exhaustion, generally but not in all detail. Then the answer attached every piece of paper that came up at all three levels of the grievance procedure, and then the plaintiff said oh, that's a good idea, I'm going to copy all those documents and make them my own. And nonetheless, that case was dismissed for failure to allege exhaustion in sufficient detail although the record made it plain that there had been exhaustion. The rule that you are opposing would operate that way. If you don't allege exhaustion in detail, it doesn't matter that the deficiency has been made up by the answer. You go out. Wasn't that the decision in one of these cases?
05-7058 +++$+++ 45800 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. That was in Petitioner Jones's case, and that -- Petitioner Jones's case is a great example of how the heightened pleading rule and the no amendment rule work together to result in a prisoner being unable to cure any problem with his or her initial complaint.
05-7058 +++$+++ 45801 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You talk about the lack of statutory direction on the first two points but there is a very explicit statute on the third question. It says no action shall be brought until administrative remedies are exhausted. And yet you say the action should be allowed to be brought even if there are unexhausted claims in the complaint.
05-7058 +++$+++ 45802 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- we concede that an action that contains unexhausted claims or a mixed action shouldn't have been brought in the first place, but it's there. And the question then becomes what to do about it. And the language no action shall be brought; it's very common in administrative exhaustion schemes, the Americans with Disabilities Act uses almost identical language, the Immigration Nationality Act uses very similar language, Title VII --
05-7058 +++$+++ 45803 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This is a very different statutory scheme. This is designed to address the problem of an overwhelming number of frivolous complaints that result in the fact that meritorious complaints can be overlooked. We've got a haystack in a needle problem here. And if you allow the action to continue, that doesn't do anything to reduce the number of filing of claims that as you say should not have been brought.
05-7058 +++$+++ 45804 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I guess I should be clear at the outset that we are by no means advocating that a prisoner can shoe horn in unexhausted claims with exhausted claims. So the unexhausted claims must go.
05-7058 +++$+++ 45805 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well right, but you provide under your approach no incentive for the prisoner to leave those claims out. Instead what, a screening function turns into an editing function. The district court is supposed to just excise out the unexhausted ones but allow the exhausted ones to continue.
05-7058 +++$+++ 45806 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's been our experience and from reading the case law it appears that prisoners don't intentionally try to shoe horn in unexhausted claims with their exhausted claims. It's typically based on innocent mistake, a simple failure to understand either the particular circuit within which they are housed, a difficulty in understanding that circuit's exhaustion law, difficulty in understanding the prison grievance procedures that they attempted to comply with, and perhaps even being further confused by the fact that prison grievance administrators seem to apply prison grievance regulations, I don't want to say in an ad hoc manner, but inconsistently. And so when they bring these complaints that are mixed they actually are intending to bring a fully exhausted complaint but then after a little built of judicial review, it becomes clear that they didn't exhaust.
05-7058 +++$+++ 45807 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why does it hurt if you dismiss the whole thing? They could just refile.
05-7058 +++$+++ 45808 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it hurts for a couple of reasons. Well -- and -- it hurts under the Sixth Circuit's rule because they did not allow prisoners to amend. So --
05-7058 +++$+++ 45809 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. No. What would happen is you just dismiss the complaint. So -- I guess again the reason they have these things is they get a certain number of complaints, they have no idea what it sys, to tell you the truth, they don't know what the claim is, they don't understand it, there are a lot of things written here; the person wasn't represented; it's hard to make out. And for, the judge thinks I have to go through all these papers; I have to figure out if there is something here that was exhausted, we know something happened; it was something exhausted -- so the simplest thing is just dismiss it. Now the prisoner can always refile it with the parts that he has to now figure out were exhausted. Now is -- and it doesn't hurt because, just refile it.
05-7058 +++$+++ 45810 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It doesn't hurt if the --
05-7058 +++$+++ 45811 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that true? Or what happens?
05-7058 +++$+++ 45812 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I guess there is two different versions of the total exhaustion rule as it's termed. There is the Eighth Circuit's rule with is with leave to amend. So the complaint is dismissed, and prisoner can file a new complaint without the unexhausted claims. Then there is the Sixth Circuit's rule, which is the most draconian of all the versions. And that says the entire action is dismissed, prisoner must institute a new action.
05-7058 +++$+++ 45813 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why is that draconian?
05-7058 +++$+++ 45814 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's draconian because by the time the prisoner refiles his or her action there could be a statute of limitations problem. The prisoner may not be able to bring those claims any more. In fact the Fifth Circuit in --
05-7058 +++$+++ 45815 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does he have to file a new filing fee?
05-7058 +++$+++ 45816 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not in the Sixth Circuit anymore, and not in the Fourth Circuit.
05-7058 +++$+++ 45817 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How many prisoners pay the filing fee in the first place?
05-7058 +++$+++ 45818 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe they all do. If they qualify --
05-7058 +++$+++ 45819 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They are not entitled to IFP status?
05-7058 +++$+++ 45820 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If they get IFP status, all that means -- well, first of all, they only get to do that three times. Or to have three actions dismissed before they lose their IP status.
05-7058 +++$+++ 45821 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that a draconian rule, do you think? You have to have three actions dismissed before you have to pay the filing fee?
05-7058 +++$+++ 45822 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, no, no. I mean -- but that's not really at issue in this case. But even if they qualify for IFP status they still have to pay the $350 filing fee. It's just taken out in installments. And so for a prisoner who makes $2.50 a day or $2.50 a week it -- it is costly for them to --
05-7058 +++$+++ 45823 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I guess this is probably not a question for you, but a question for your friend on the other side. You can ask, why does it hurt? You can also ask why does it help? What good does it do to bounce the whole thing back when you're just going to have them filed again?
05-7058 +++$+++ 45824 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's exactly right, Justice Scalia.
05-7058 +++$+++ 45825 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, well, the reason it would hurt is because it's difficult for the judge to go though this complaint that he can't quite make sense out of. And it puts the burden of the prisoner to go through and figure out what he really wants to say. That's why -- that's why it's easier for the judge just to dismiss it than to go through many, what could be many pages with a fine-toothed comb trying to figure out if there is anything here that was exhausted.
05-7058 +++$+++ 45826 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the other incentive is if you adopt your rule, the incentive on the prisoner is to put in every possible claim, even if it is not exhausted because maybe it will get through, maybe it won't. And if it doesn't get through, no harm. He doesn't even have to pay another $50.
05-7058 +++$+++ 45827 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I think at least, at least under that scenario, the district court still only has to take one look at the case and then it can move forward, it deletes the unexhausted claims. So from a judicial efficiency standpoint I think the Ortiz V. McBride rule out of the Second Circuit, which is the rule that we are advocating, is -- is the cleanest approach. It takes the choice away from the prisoner; it puts the choice with the district court, and it allows the district court to delete off any unexhausted claims. And in most instances --
05-7058 +++$+++ 45828 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is there any argument that if the state does not insist on exhaustion or plead exhaustion, that it just drops out of the case? If the state resolves the case on the merits even though there is no exhaustion, can the Federal court hear it, that there is general agreement about that?
05-7058 +++$+++ 45829 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think there is. The circuit -- the four circuits that we know were unanimous that PLRA exhaustion is not jurisdictional, and in Woodford we know this Court confirmed that. And so to the extent that the PLRA exhaustion is an affirmative defense, then it would operate like other exhaustion schemes in administrative -- administrative law, and habeas, where it is waivable by the other side.
05-7058 +++$+++ 45830 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If -- if we accept your first two arguments, then if there is no heightened pleading rule and you don't have to name the specific defendants in the administrative grievance that you end up naming in the complaint, if you prevail on both of those, then isn't the third question, have you, what happens when you haven't properly exhausted, is really not alive anymore in this case, because you will have properly exhausted. So why should the Court go on to answer what would happen if you hadn't properly exhausted?
05-7058 +++$+++ 45831 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Respectfully, Justice Ginsburg, it's unfortunately more complicated than that. If the first question in the Jones case, the ID pleading rule question, is resolved in favor of Petitioner Jones, then total exhaustion is a live issue. Because the Sixth Circuit as an alternative holding justified the dismissal of Jones's complaint on the total exhaustion ground. And I guess on the other side if the Court were to resolve the identifying the defendant's issue against Petitioner --
05-7058 +++$+++ 45832 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the Sixth Circuit obviously would have been wrong; if he has totally exhausted; they have, gave that as a no alternative grounds, but if they are wrong on the first one and he has exhausted. That's the end of it.
05-7058 +++$+++ 45833 +++$+++ TRUE +++$+++ MR. GRANT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Sixth Circuit -- and it's not really clear from this opinion, because it's an unpublished opinion, but the Sixth Circuit appears to have adopted the magistrate judge's finding which is based on respondent's motion to dismiss that Jones substantively, for lack of a better word, didn't exhaust all of his claims, so -- I'm sorry. I'm not being clear.
05-7058 +++$+++ 45834 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That was the case where the, where the defendant estate, wasn't that the case where they put in all the papers from the administrative record?
05-7058 +++$+++ 45835 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. But they also argued that Jones failed to exhaust his administrative remedies on everything but his First Amendment retaliation claim. Or what they termed his negative work --
05-7058 +++$+++ 45836 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but they were wrong about that. If, if there was exhaustion in the case, and if there is no rule that you must name everything the defendant that you end up suing, if those two are established, again wouldn't we be dealing with a moot question? Moot in this case?
05-7058 +++$+++ 45837 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Justice Ginsburg. I think in order for the total exhaustion issue to be moot, the heightened pleading requirement would have to be resolved against Petitioner Jones, and the naming the defendants issue would have to be resolved in favor of Williams and Walton. I charted out on a matrix and verified it a couple of times. Turning to the naming issue if I could, since we haven't addressed that, the Prison Litigation Reform Act simply sets a floor of how much specificity a prisoner must provide in his or her grievance. It does not require what the Sixth Circuit held here which is that as a matter of Federal statutory law a prisoner must have identified every individual who he or she later sues in Federal court. This is a kind of endemic, or flows logically from the Court's decision in Woodford V. Ngo. Woodford v. Ngo says that prisoners must comply with grievance procedures.
05-7058 +++$+++ 45838 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You would have no problem, I assume, if the state simply requires that you name the individuals?
05-7058 +++$+++ 45839 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I guess broadly speaking no; in certain cases yes.
05-7058 +++$+++ 45840 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ To the extent possible, I suppose.
05-7058 +++$+++ 45841 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Exactly. If -- in Michigan they have a --
05-7058 +++$+++ 45842 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then, then there would not be exhaustion unless he had named the individuals.
05-7058 +++$+++ 45843 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that's correct. I mean, although I guess --
05-7058 +++$+++ 45844 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So we may not be, may not be litigating about a whole lot here.
05-7058 +++$+++ 45845 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, right. I think really the question is an X or not X question. It's does the PLRA as a matter of statutory law required individuals to be named in the underlying grievances, and the PLRA is entirely silent on that question, and this Court's decision in Sims v. Apfel lends further lends further support to the proposition that a Federal court cannot go beyond what the particular administrative agency's rules require. I realize that was a plurality decision but I think the petitioners win under either the plurality opinion or under Justice O'Connor's concurrence. And so yes, Justice Scalia we agree with you that it's simply an X or Y question that down the road perhaps the Court could address the scenario where a prison system amends its rules to require individual defendants to be named and then perhaps a prisoner can't comply with that based on the short previous filing deadlines, and then there is a question of whether the administrative remedies were actually ever available to that particular prisoner.
05-7058 +++$+++ 45846 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you have in one of these cases, the person has said: I didn't know who was the person who said I couldn't have the operation until the prison identified him.
05-7058 +++$+++ 45847 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. I believe you're referring to either the Williams or the Walker --
05-7058 +++$+++ 45848 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. So even if you had a rule, a reasonable rule, that named the people that you know, if you have it, that would not encompass someone? In two of these cases, the defendants -- the plaintiff, the prisoner, said, I didn't know who those guys were until they were identified.
05-7058 +++$+++ 45849 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. And to that extent the prison grievance system worked, because the prisoners provided as much detail as they possibly could and then the prison grievance system went out, conducted its investigation, broadened the universe of relevant facts, and then made a determination. They happened to determine that grievances were not meritorious. Obviously, petitioners disagree with that assessment. That's why they sued in Federal court. But the prison grievance system worked. To borrow from the Third Circuit's decision in Spur v. Gillis, a cooperative ethos between inmate and jailer was achieved, because so long as the prisoner provides sufficient information for the grievance system to go out and answer any unresolved questions and so long as the prison grievance system avails itself of that opportunity then the claim is exhausted. If there are no further questions, I'd like to save the rest of my time for rebuttal.
05-7058 +++$+++ 45850 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Andre. Ms. Olivieri.
05-7058 +++$+++ 45852 +++$+++ FALSE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice and may it please the Court: Congress enacted the Prison Litigation Reform Act to deal with the flood of prisoner litigation that was coming into the Federal courts, obscuring the treatment for meritorious claims brought by all litigants. The purpose of the act was to unburden the courts from dealing with this flood of litigation that largely was without merit. The purposes for the act were to increase the quality of the litigation, decrease the quantity of the litigation, allow the states to address first the issues that the prisoners have problems with and to develop an administrative record to facilitate judicial screening. And all of this would result in increased judicial resources for all litigation that has potential merit. The invigorated exhaustion requirement does require total exhaustion. The statute, the words of the statute itself confirm this. The statute states: "No action shall be brought until" --
05-7058 +++$+++ 45853 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you, what is a typical administrative record that is developed in these proceedings? There's never a transcript, is there?
05-7058 +++$+++ 45854 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I've never seen a transcript. Typically it's one sheet of paper. The inmate states what the problem is, states what he did to try to resolve the problem before filing a grievance. And then there's space at the bottom for response. Frequently the response is right on that page. Sometimes the response indicates "See attached." If there's a lengthier response there may be a separate page. Similarly, if the prisoner can't put all of his --
05-7058 +++$+++ 45855 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there normally a statement of reasons for the denial of relief or are they just denied in many cases?
05-7058 +++$+++ 45856 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For the most part they attempt to address the issue.
05-7058 +++$+++ 45857 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are the opinions a page or two or just a sentence or two? What is typical?
05-7058 +++$+++ 45858 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Typically they are --
05-7058 +++$+++ 45859 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm just wondering how, how much help that will give the judge later on in processing the case.
05-7058 +++$+++ 45860 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the last 12 months there have been 13,000 grievances processed by the Michigan Department of Corrections at the third step, and that's for people who appeal all the way through to the third step. So there are many more than that before that. Some of the responses can be very detailed. They can go on for a full page typewritten single spaced. Some of the responses --
05-7058 +++$+++ 45861 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How many of the 13,000 are of that variety?
05-7058 +++$+++ 45862 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I haven't read all 13,000, but typically the response would be about a half a dozen lines.
05-7058 +++$+++ 45863 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I see. And the other question: Of the 13,000 grievances, how many did result in litigation?
05-7058 +++$+++ 45864 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Last -- in the last year that ended June 30th, 12 months, we had approximately 200 cases.
05-7058 +++$+++ 45865 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ 200 out of 13,000?
05-7058 +++$+++ 45866 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct. In the previous years we had somewhat fewer, so it's sort of going up. But you know, it's between 160, 180, 200. This year we're on that same pace, approximately 200.
05-7058 +++$+++ 45867 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can you explain what the disincentive or other reasons for there being just 200 lawsuits out of the 13,000?
05-7058 +++$+++ 45868 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ These 200 are ones that we were served with. That doesn't include the ones that may have been screened out by the courts and we were never served with them.
05-7058 +++$+++ 45869 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I see.
05-7058 +++$+++ 45870 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This only includes ones where a defendant was actually served with process.
05-7058 +++$+++ 45871 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Basically, I mean you've heard the question and so forth. It seems to me that my questions and certainly others were based on certain empirical premises that might be true, might not be true. So why isn't this a question for the Rules Committee? Why not go to the Rules Committee if this really is a burden and so forth, rather than doing something unusual, which is to make exhaustion something other than an affirmative defense, to dismiss the whole complaint, which appear to be rules that reached draconian results in a few cases anyway.
05-7058 +++$+++ 45872 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ When it's a dismissal without prejudice, it's improper to characterize it as draconian.
05-7058 +++$+++ 45873 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It could be, because the statute of limitations could have run. So it depends. Sometimes it is, sometimes it isn't. But my basic question here, isn't this a matter for the Rules Committees rather than for the Sixth Circuit to go off on its own?
05-7058 +++$+++ 45874 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This Court in Neitzke versus Williams took a look at the previous version of the in forma pauperis statute and that statute allowed sua sponte dismissals for only two reasons, frivolous and malicious cases. Under that, in that opinion, the Court indicated that when it's a sua sponte review for those two issues you don't get the benefit of the adversary process that's embodied in the Federal Rules of Civil Procedure. Congress, recognizing that even in Neitzke the Court indicated that the Federal courts were being flooded with prison litigation, much of it meritless, expanded the categories that are now subject to sua sponte dismissal, and those include suing someone who is immune from liability or failing to state a claim.
05-7058 +++$+++ 45875 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that doesn't include failure to exhaust.
05-7058 +++$+++ 45876 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It didn't specifically include failure to exhaust.
05-7058 +++$+++ 45877 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if you follow the normal rule, that that's an affirmative defense, then, then the burden would be on the prison to do just what it did in the Jones case. Why, why would we say, depart from the normal rule that makes exhaustion an affirmative defense when we know that the party best equipped to provide the information about exhaustion is the prison, as the Jones case showed so well? They, the prison, had all of the grievances. They had all of the responses and they presented that to the court. So the prisoner is less well equipped to attach those papers than the prison is, so why isn't it not only traditional to have exhaustion as an affirmative defense, but makes the most sense because the one most likely to have the information is the prison?
05-7058 +++$+++ 45878 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Congress dealt with that in 1997e(g), the waiver of reply provision, which confirmed what the 1997e(c) dismissal provision provides. This is all a screening situation for the Federal district courts, designed to move these cases that have been proven largely meritless quickly through the system rather than bogging the courts down --
05-7058 +++$+++ 45879 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If Congress meant to reverse the ordinary burden on pleading exhaustion, why didn't it put that in? It was expanding the categories and it included failure to state a claim, which had not been there before, and it included if you sue somebody who has got immunity. But it didn't include exhaustion, so why should we read that in?
05-7058 +++$+++ 45880 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, exhaustion is the very first provision and it's --
05-7058 +++$+++ 45881 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's not in the screening. It doesn't say you screen out for failure to exhaust.
05-7058 +++$+++ 45882 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not specifically there, but the exhaustion provision is a precursor. It's a precondition. You can't even get into court until you've exhausted because it says no action shall be brought.
05-7058 +++$+++ 45883 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there are other provisions than "no action shall be brought." Take a statute of limitations that reads "No action shall be brought after two years" or something like that. There is no action shall be brought. Does that make it no longer an affirmative defense?
05-7058 +++$+++ 45884 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The courts have interpreted statutes of limitations consistently to be in the category of an affirmative defense. The problem with that is this statute, the PLRA, is the new regime for prison litigation, not for all the litigation across the board. And in the waiver of reply, the Congress specifically took the defendant out of the equation, requiring the court to determine whether or not the case has been exhausted, whether or not the plaintiff has failed to state a claim and the other criteria that are all in that --
05-7058 +++$+++ 45885 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, all the criteria are there, but failure to exhaust is not.
05-7058 +++$+++ 45886 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not specifically, but failure to exhaust could be construed as a --
05-7058 +++$+++ 45887 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But last time -- and you said before the statute was there were only frivolous and malicious. And the court says, we can see from the face of this complaint that it fails to state a claim, too bad it's not a ground for automatic dismissal. So Congress said, yes, it should be, and put that one in.
05-7058 +++$+++ 45888 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Congress put the screening provision as number one, where you cannot even bring a case to court unless you have exhausted administrative remedies. So it's unimaginable that that would not be a ground for sua sponte dismissal when you can't even bring your case until you've exhausted.
05-7058 +++$+++ 45889 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Miss Olivieri, you also rely on the "no action shall be brought" language to justify dismissal of the entire action, all claims, even though only some of them have not been exhausted. Do you have any, even a single example of the many other instances where that language is used in the Federal statutes? And there are many of them. Do you know any other case where it's been interpreted that way, so that claims that are perfectly valid will not be retained, but rather the whole action will be dismissed?
05-7058 +++$+++ 45890 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Habeas corpus is another situation where there is a provision that says no relief shall be granted, no writ shall be granted, absent exhaustion of -- exhaustion of state court remedies. There in the habeas situation, it is a little bit different than in the PLRA -- pardon me -- because there is a stay in abeyance provision in habeas --
05-7058 +++$+++ 45891 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
05-7058 +++$+++ 45892 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- which was in the statute before Congress passed the PLRA, and Congress actually took out the stay in abeyance provision. It all serves the purpose that Congress intended, which was to allow the courts to quickly screen these cases. If you look at e(a)(C)(1) -- (C)(2), they give the court many options for doing what is most judicially prudent in that particular case to preserve resources.
05-7058 +++$+++ 45893 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is the basis in the habeas context for dismissing the entire habeas application despite the fact that some of the claims have been exhausted? Is there any statutory basis for that or is it just, just judicial efficiency?
05-7058 +++$+++ 45894 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is -- I believe it's under the exhaustion requirement. The court has the option of dismissing the entire action -- actually, I believe there the petitioner gets the option, do they want to proceed on the exhausted claims or do they want to drop out the unexhausted claims.
05-7058 +++$+++ 45895 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that's not -- the statute doesn't settle that. Our decisions settle that, right? So why should we deal with that, the two, any differently? It's not as though Congress wrote the statute differently. We said you can't proceed with unexhausted claims, so you have a choice. Either you go out of the Federal court and exhaust everything -- or even you don't have to go out; you could use the stay in abeyance -- or you just lob off the unexhausted claims, stay in the Federal court on the ones that you have exhausted. That's all made up by this Court. So why should the Court react differently in the PLRA than it did? Why should it fill those gaps differently than it did in habeas?
05-7058 +++$+++ 45896 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think because Congress did revoke the stay in abeyance provision in the PLRA.
05-7058 +++$+++ 45897 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But your answer was it shouldn't, I think. I think she's making your argument for you.
05-7058 +++$+++ 45898 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Pardon me?
05-7058 +++$+++ 45899 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think she is saying that we should treat this area the same way we treat habeas, so that the whole case should be dismissed rather than just the individual claims, which is what I think you want; isn't it?
05-7058 +++$+++ 45900 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, that is my argument, yes.
05-7058 +++$+++ 45901 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Well, don't fight it.
05-7058 +++$+++ 45902 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. I was suggesting that in habeas it is the prisoner's option to say --
05-7058 +++$+++ 45903 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I was suggesting that in habeas it is the prisoner's option to say I don't want the whole case dismissed. I will amend my petition so that the court will have, will retain the exhausted claims. You are saying not like habeas, I don't want it to be like habeas, because if it were like habeas, the prisoner would have the option to stay in the federal court as long as he lopped off the unexhausted claims. You don't want it. You don't want it to be like habeas?
05-7058 +++$+++ 45904 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't want the prisoner to be allowed to choose to lop off the unexhausted claims, that is true, or to amend, to delete them, because then there is absolutely no incentive for the prisoner to improve the quality of the litigation by stopping and thinking, being careful to exhaust all his claims, and being careful to plead only claims that are exhaustive.
05-7058 +++$+++ 45905 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The same arguments apply in habeas, don't they?
05-7058 +++$+++ 45906 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But in habeas you have the stay and abeyance provision that was specifically removed --
05-7058 +++$+++ 45907 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Not if you had your way.
05-7058 +++$+++ 45908 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Remove -- well --
05-7058 +++$+++ 45909 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think you're making an argument that it would preclude that too.
05-7058 +++$+++ 45910 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
05-7058 +++$+++ 45911 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it seems to me that if we accept your response to Justice Ginsburg, we've got to go back and to the extent that we can do anything about it, we'd better toughen up habeas so that these things get thrown out more readily.
05-7058 +++$+++ 45912 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Habeas does deal with a person's liberty whereas the PLRA is simply dealing with people basically for the most part trying to get some sort of relief, either injunctive or monetary relief, that does not deal with their basic freedom. So in that respect --
05-7058 +++$+++ 45913 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ One reason to require total exhaustion is because, I would assume the prisoner may get sufficient relief if the claims are exhausted, that he doesn't feel the need to go forward with litigation. But I guess that's only true if the exhausted claims are still alive, and how many, when we're talking about unexhausted claims, are those typically claims that are not going to be available or are they claims that may generate relief once there is exhaustion?
05-7058 +++$+++ 45914 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could be -- I mean, it's obviously both. I mean, there are claims that are partially exhausted when the inmate files the lawsuit. He may finish exhausting and get the relief that he's looking for without ever pursuing the case in federal court.
05-7058 +++$+++ 45915 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And then sometimes it's impossible to complete the exhaustion. I assume in some cases that the time limit for the last appeal will have expired, right?
05-7058 +++$+++ 45916 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That can also be the case, and under Woodford versus Ngo, now that they have to do proper exhaustion, there will be more of those cases where it probably, there wouldn't be anything left to do after it's dismissed except for the plaintiff to be the one to go through the maybe 20 claimed complaints and call out the claims that are not exhausted, rather than putting that burden on the court, which is contrary to Congress's purpose, to streamline this system.
05-7058 +++$+++ 45917 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask you about, there's another question you haven't really touched on yet, the requirement that the prisoner name every defendant that he intends to sue in the exhausting, in the internal procedure. I'd just like a little help on just exactly what happens. The prisoner doesn't get the kind of medical care he thinks he's entitled to, and he only knows it because either the low level person says no, the doctors said you can't have it. And he brings a proceeding, an informal administrative proceeding, and they deny relief. And then later on when he wants to sue, his lawyer happens to find out the name of the doctor who was involved, and there are several levels of authority making the decision. Does he have to start all over again to name those people, or what does he do?
05-7058 +++$+++ 45918 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Medical care is -- well, for one thing, prisoners do have counselors, and so if they're not sure who is responsible for something, that's one of the things that they're supposed to do is talk to their counselor to find out. You know, I'm having this problem, I'm not getting surgery, why am I not getting surgery, who do I talk to, who do I complain to. So that's one way to resolve the problem.
05-7058 +++$+++ 45919 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what if he does talk to the prison guard and the guard says I don't know, I don't know who's responsible for that decision, that's in the warden's office, or something like that. What is the prisoner supposed to do?
05-7058 +++$+++ 45920 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the prisoner makes inquiry and just simply can't find out who it is, then he should state that in his grievance and indicate that somebody in the medical department is denying me the surgery. You know, I talked to Dr. So and So, he's recommended that I get it, somebody is saying no, I haven't been able to find out who that is. And likely during the grievance process, he will find out who it is, because one of the responses will probably say that.
05-7058 +++$+++ 45921 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What if he doesn't? One of his grievances is nobody told me. Is he out of luck there? And I think there may well be situations in which prisoners don't have complete access to all the facts that go into a decision denying them medical care, for example, or say a prisoner has a religious problem and can't get the diet he wants, or something like that. But before he can sue, under your view if I understand it, he has to find out so he can name the people in his administrative complaint.
05-7058 +++$+++ 45922 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He has to make a good faith attempt to find out. And if he really, you know, if he says I've asked my counselor, he is not able to provide me with that information, then he will get a response on the grievance.
05-7058 +++$+++ 45923 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is the purpose of that requirement? As long as he has made known in the administrative proceeding what his problem it, and they have had a chance to investigate it and determine whether it has merit or not, why should he have to name the individuals who made the decision in order, before he can sue them when he later finds out who they are?
05-7058 +++$+++ 45924 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That goes back to 1997e(g), the waiver of reply, where it says that no defendant can be made to respond to the complaint unless the court can certify that the prisoner has a reasonable opportunity to prevail on the merits. It talks about defendants there. Also, you get a case like Mr. --
05-7058 +++$+++ 45925 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, no, it's standard law of agency. It doesn't make any difference. The prisoner is denied his rights. As Justice Stevens said, there may be three or four different people who concurred. Do your rules say that if he can't find out with reasonable efforts that he doesn't need to, or does the Sixth Circuit rules say that the delegation of the names is not required?
05-7058 +++$+++ 45926 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Sixth Circuit rule basically says name or identify. And for instance, here with respect to Mr. Jones, he didn't name the classification director. He used the title. Nobody had anything negative to say about that. We know you're talking about the classification director. It's Mr. Morrison. We've only got one, not a problem. The Sixth Circuit rule is basically name or identify, so if you're going to identify --
05-7058 +++$+++ 45927 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is it that the Sixth Circuit rule requires the identification, for complete exhaustion requires the identification to be made at the first stage?
05-7058 +++$+++ 45928 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Sixth Circuit rule does require that.
05-7058 +++$+++ 45929 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So to make sure I understand this, in a case, let's say at stage one he names Dr. X. And for whatever reason in the course of the response perhaps, he learned that not only was Dr. X involved but Dr. Y was involved in that decision. So if he is denied relief at stage two, he says X and Y, and he identifies X and why all the way through. He gets nothing satisfactory to him, so he goes in to Federal court. Is it correct that under the Sixth Circuit rule they would say you have not completely exhausted because at stage one you did not mention Y? Is that correct?
05-7058 +++$+++ 45930 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Sixth Circuit probably would say that that he would be out of luck with respect to Y.
05-7058 +++$+++ 45931 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What justification is there for that? I mean, for two stages through the prison administrative process, Y has been identified. The prison has taken action on the merits on the assumption that Y is in fact at least an allegedly responsible party. What reason is there in a Federal court to say that the exhaustion is incomplete because he didn't mention Y back at stage one?
05-7058 +++$+++ 45932 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Sixth Circuit adopted that rule probably in a case like the Walton case here, where Mr. Walton had a problem with his slot restriction and said, you know, Deputy Warden Bobo put this restriction on me. It goes through the grievance process and they say Bobo didn't put that on you, Gearin put it on you. That's at step one. They give that response. He goes then into court after exhausting two or three steps, still saying, you know, they're discriminating against me based on race with the slot restrictions.
05-7058 +++$+++ 45933 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, but that wasn't my hypo. As I understand it, in that case he keeps going after Bobo, period. And in my case at stage two, having learned something, he identifies Y. And I -- so I don't see the justification, what is the justification?
05-7058 +++$+++ 45934 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think I was probably giving too much explanation, but I think from my understanding of how this should operate, he is all right in that case to sue Mr. Gearin, who actually did put the slot restriction on him, and he had the wrong name at step one. No problem. We got the right name at step two or, excuse me, at the end of step one. And he pursues it? I think he's got a good claim against Mr. Gearin. The Sixth Circuit may not think that's true.
05-7058 +++$+++ 45935 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In my case, you said you understood that the Sixth Circuit would say that although he identified X and Y in stage two and at stage three, and there had been merit for adjudication at those stages, understanding who the named respondents were, the Sixth Circuit would nonetheless say you had failed to exhaust because back at stage A you mentioned X but not Y. What is the justification, if that is still your answer, what could the justification for that be?
05-7058 +++$+++ 45936 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think the Sixth Circuit had that type of case in front of them when they issued --
05-7058 +++$+++ 45937 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that apparently, if I understand your answer, is what the result would be. And is there -- and I don't want to, you know, make it hard for you. I think you're having a hard time finding a justification for that result and I certainly can't find one. Can you think of any?
05-7058 +++$+++ 45938 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm saying there is none. I'm saying he's got a good claim against Mr. Gearin.
05-7058 +++$+++ 45939 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, how about Y in my example?
05-7058 +++$+++ 45940 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Pardon me?
05-7058 +++$+++ 45941 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does he have a good claim against Y?
05-7058 +++$+++ 45942 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Y?
05-7058 +++$+++ 45943 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In the Federal court in my hypo --
05-7058 +++$+++ 45944 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. He named X, and now -- -
05-7058 +++$+++ 45945 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think Y is Mr. Gearin.
05-7058 +++$+++ 45946 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Y is Mr. Gearin, yes.
05-7058 +++$+++ 45947 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
05-7058 +++$+++ 45948 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So he's got a claim against Y.
05-7058 +++$+++ 45949 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even though the Sixth Circuit would throw it out for failure to exhaust.
05-7058 +++$+++ 45950 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I disagree with the Sixth Circuit on that, but I don't disagree with the Sixth Circuit in that when he actually got to court, he sued four other people who were never mentioned in any grievance by anybody.
05-7058 +++$+++ 45951 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How about Jones, who really did not know who was the doctor who said no surgery? He didn't know and then the prison told him. And he comes to the court, he says thanks, prison, for telling me, and so he names that person in his complaint. The Sixth Circuit said that's no good, he didn't put it in his initial complaint. He had only 15 days to find out and he didn't find out.
05-7058 +++$+++ 45952 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm agreeing with you that the Sixth Circuit, both that the Sixth Circuit would say that that won't fly, and that in fact it should fly.
05-7058 +++$+++ 45953 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So Jones did properly exhaust, then, if you just made that confession, then Jones properly exhausted?
05-7058 +++$+++ 45954 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Jones properly exhausted against the doctor who actually denied the medical treatment, denied the surgery. Yes. But Jones never served, unfortunately, that particular doctor, Dr. Cranstall.
05-7058 +++$+++ 45955 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, you've mentioned in your brief that there has been a change in the Michigan grievance policy with respect to naming individuals. What is the consequence of that change for our ability to address that claim?
05-7058 +++$+++ 45956 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It will, it will be the same basic philosophy that I've been stating here. I mean, it's going to be a name or identify. Tell us who you've got a problem with. Don't tell us you have a problem with one person and then go into court and sue six other people who may be the people who actually responded to the grievance, because MDOC didn't know that you had a problem with this person.
05-7058 +++$+++ 45957 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought one of the objections to the Sixth Circuit rule from your friend was that this requirement of naming the individuals came out of thin air. And now we have that requirement articulated in the grievance policy. Does that make a difference?
05-7058 +++$+++ 45958 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does make a difference in proper exhaustion.
05-7058 +++$+++ 45959 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's not an absolute policy, though. It isn't that if you haven't named him in the first administrative step, you can't name him in the complaint. That's not Michigan's new policy.
05-7058 +++$+++ 45960 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Michigan doesn't say you have to name him at the first step. It says when you file your grievance, you know, name --
05-7058 +++$+++ 45961 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't there an exception when you couldn't find out?
05-7058 +++$+++ 45962 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And if they say they can't find out, and they've made reasonable inquiry, you know, there's somebody at the top of the chain of the medical, that's understandable that they may not know, because they may have never seen Dr. Pramstaller.
05-7058 +++$+++ 45963 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did the Sixth Circuit have the current Michigan policy before them when they made their decision?
05-7058 +++$+++ 45964 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not on these three cases, no. It was the previous policy which indicated that the inmate had to be as specific, basically be as specific as possible, something along those lines.
05-7058 +++$+++ 45965 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I take it from your answer to Justice Ginsburg that back in my Dr. X, Dr. Y case, under the new policy if they got to stage 2 and Y was identified, that Michigan would process the complaint?
05-7058 +++$+++ 45966 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We would process the grievance, absolutely.
05-7058 +++$+++ 45967 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The grievance.
05-7058 +++$+++ 45968 +++$+++ TRUE +++$+++ MS. OLIVIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Yes. Finally, I would ask the Court to keep in mind that the entire purpose of the Prison Litigation Reform Act is to relieve the courts of the burden and the screening process that's set in place by this statute allows the Court many options.
05-7058 +++$+++ 45969 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now you say the primary purpose is to relieve the courts of the burden rather than determine whether there is merits to the grievances?
05-7058 +++$+++ 45970 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The, the purpose of the Prison Litigation Reform Act was to relieve --
05-7058 +++$+++ 45971 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was to reduce the volume of litigation, period?
05-7058 +++$+++ 45972 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To reduce the volume to provide more --
05-7058 +++$+++ 45973 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wasn't there any interest in determining whether the complaints have merit? I mean, I think you must be interested in getting rid of 11,000 complaints and reducing them down to 200. I would think that's more important than saving the court some time. There must be, you must have some interest in determining whether the complaints have merit.
05-7058 +++$+++ 45974 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we do have an interest. We respond to every one of those in three steps, and we never end up in litigation for the most part so the grievance process works totally outside of what litigation goes on. It does resolve complaints. But the Prison Litigation Reform Act allows the court to either --
05-7058 +++$+++ 45975 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But these rules that are challenged here are primarily to benefit the courts, not the profits -- the process.
05-7058 +++$+++ 45976 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They are to, to benefit the courts by taking resources that had previously been spent on meritless cases and spending those instead on cases with merit, to efficiently screen these cases so that the courts are not spending a lot of time asking us for responses and so forth. If it's a failure to state a claim the case can be dismissed right, there all without prejudice. There is nothing draconian here. They can be rebrought.
05-7058 +++$+++ 45977 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Counsel.
05-7058 +++$+++ 45978 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
05-7058 +++$+++ 45979 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Andre, you have five minute remaining.
05-7058 +++$+++ 45981 +++$+++ FALSE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, you asked earlier about who is better equipped to plead and show exhaustion. It's certainly our position that the Michigan Department of Corrections or prison grievance administrators are absolutely better equipped to do so.
05-7058 +++$+++ 45982 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How is that? The prisoner is the one who presumably knows best whether or not he filed a grievance or not.
05-7058 +++$+++ 45983 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The prisoner may know best whether or not he or she filed a grievance and whether or not he appealed. The prisoner may not know precise dates on which he or she did so or have copies of the grievances anymore. This really kind of brings the heightened pleading rule, not just whether it's just affirmative defense or a general pleading rule, to the fore. Prisoners are prisoners. They get moved around, they get put in administrative segregation; they are subject to repeat searches; they have great difficulty in maintaining possession of their belongings. On the other hand the Michigan Department of Corrections keeps copies of all the grievances, denials and appeals.
05-7058 +++$+++ 45984 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This seems to me to be a stretch to say that the prison, which has how many prisoners under their jurisdiction, is in a better position to know in individual cases, an individual prisoner, what this prisoner did or didn't do with respect to the grievance process. Surely the prisoner is in the best position. He knows what he did or at least what he is going to allege.
05-7058 +++$+++ 45985 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He may be able to aver generally but with specificity there are many cases in which he won't be able to. But the Michigan Department of Corrections' policy directive makes clear that it has to maintain these records for future FOIA requests, and in many institutions it has to track them in a computer. And as Justice Ginsburg pointed out, in the Jones case, they were quite able to bring forward the proof of exhaustion that would satisfy, that would have satisfied the court that Jones had exhausted his administrative remedies. Jones gets, just got thrown out of court, essentially, in a game of "gotcha," because he hadn't attached his complaint in the first instance. I think most importantly, from a judicial efficiency standpoint, making exhaustion an affirmative defense makes sense. That means that the lawyers in the state attorney's general, in the state, in the office of the state's attorneys general, are going to be able to put forward the best arguments as to why a claim is or is not exhausted.
05-7058 +++$+++ 45986 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It requires, it requires response in all the cases, and as this subsection G indicates, part of the purpose of the act was to eliminate the necessity of responding to frivolous complaints. Why -- why, you know, you have to go through the requesting a response from the government, when in fact there is nothing to this complaint because there has never been any exhaustion.
05-7058 +++$+++ 45987 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But to go back to Justice Ginsburg's point earlier Congress could have included unexhausted claims among those types of claims that the court could screen out and dismiss or among those claims for which a court could --
05-7058 +++$+++ 45988 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's a different argument. But I mean, don't tell me that it isn't more efficient to have the prisoner say at the outset whether it's exhausted or not. It certainly is.
05-7058 +++$+++ 45989 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Or again, it may be more efficient to have them aver generally, but as far as having a prisoner comply with a heightened pleading requirement, we don't think that that makes sense. We are talking, again we are talking about prisoners here.
05-7058 +++$+++ 45990 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If it's an affirmative defense doesn't that mean that the prisoner is going to have to file, and the individuals defendants are going to have to file an answer in every case and assert all of their defenses?
05-7058 +++$+++ 45991 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Either --
05-7058 +++$+++ 45992 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Just respond, even if there is nonfrivolous, nonexhaustion argument that can be made, they are going to have to go through all of that in every instance?
05-7058 +++$+++ 45993 +++$+++ TRUE +++$+++ MS. OLIVIERI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They would have to file an answer and motion to dismiss raising whatever affirmative defense they want to raise, but at least it gives them a choice and gives them the opportunity to frame this argument as opposed to putting it on, putting that burden on the court. Moreover if the court were to adopt respondents' reading of the screening provisions, those screening provisions would swallow up every single affirmative defense enumerated in the Federal rules, and also those not enumerated.
05-7058 +++$+++ 45994 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ With respect, with respect to the naming of the individuals, is that claim moot because of the change in the policy?
05-7058 +++$+++ 45995 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, not at all. I mean, I can't see how, how respondents could argue that --
05-7058 +++$+++ 45996 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought your main argument before was they invented this requirement without any basis, but now it's an actual requirement in the grievance procedure.
05-7058 +++$+++ 45997 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, but it wasn't when these claims were decided. And that's where I think Sims v. Apfel comes into play. Under Justice Thomas' plurality opinion, the key is looking at kind of the nature of the proceedings and if it's informal and accusatorial as opposed to adversarial, then a court cannot impose a requirement beyond that which the agency itself required at the time that the claims were before the agency. Under Justice O'Connor's concurrence, she was concerned about fair notice, and certainly here in these cases petitioners Williams and Walton didn't have fair notice that a year and a half later the State of Michigan, after going through the entire grievance procedure and never relying on their failure to be sufficiently specific, can then come into Federal court and say, aha --
05-7058 +++$+++ 45998 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Future prisoners now do have fair notice because the grievance procedure says name the individuals, dates, names, places, names of all those all involved.
05-7058 +++$+++ 45999 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, they would, they would. And again, there would certainly be constraints to too rigid enforcement of that particular provision.
05-7058 +++$+++ 46000 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is the no leeway built into the rule itself, that if you don't know --
05-7058 +++$+++ 46001 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry. I didn't --
05-7058 +++$+++ 46002 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't there -- the current rule, isn't there some leeway for cases where the prisoner simply doesn't know the names?
05-7058 +++$+++ 46003 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not aware of any, Justice Ginsburg.
05-7058 +++$+++ 46004 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
05-746 +++$+++ 46008 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Norfolk Southern Railway versus Sorrell. Mr. Phillips.
05-746 +++$+++ 46010 +++$+++ FALSE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The fundamental question in this case is whether the common law doctrine of equivalence between defendant negligence and plaintiff negligence applies under the FELA. The doctrine of equivalence is, I think, most clearly stated in the Restatement (Second) of Torts, which is reproduced on page 19 of our blue brief in the middle paragraph. And I think it is worth taking a second to read it. The rules which determine the causal relation between a plaintiff's negligent conduct and the harm resulting to him are the same as those determining the causal relation between the defendant's negligent conduct and resulting harm to others. That is a principle of law that has been in effect long before the Federal Employers Liability Act was enacted. It is obviously a restatement of the law in 1965, and it is an absolutely clear Official statement of the law as it applies today. There is nothing in the Federal Employers Liability Act that remotely modifies the doctrine of equivalence. The two provisions, section 51 talks about negligence resulting from -- or negligence in whole or in part. And section 53, which describes the contributory negligence portion or comparative negligence talks about negligence attributable to. None of that deviates at all from any kind of common law doctrines. Negligence inherently calls for an analysis of proximate causation.
05-746 +++$+++ 46011 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Except that the -- what was it, the Rogers case, which said that the -- well, you debate whether it said that, but let's assume that it said that the rule of proximate causality doesn't apply to the negligence of the defendant. The basis for that holding was that in whole or in part language which is used for the negligence of the defendant, but not used for the contributory negligence. So if you believe that that case was at least decided for the right reason, it seems to me there's a good argument that it changed it for the one, but not for the other.
05-746 +++$+++ 46012 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, even if that were true, we would still, of course, be entitled to -- I mean, it doesn't change the doctrine of equivalence. It doesn't say that we're not entitled to the same rule with respect Official to the -- our clients --
05-746 +++$+++ 46013 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But nobody does --
05-746 +++$+++ 46014 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The plaintiff would be. That doctrine is unaffected by that holding. Now, I'd like to take issue with the interpretation of Rogers, if you want, at this point. But it seems to me the doctrine of equivalence is fundamentally different from the doctrine of proximate causation. And therefore, you can change one without affecting the other one whatsoever.
05-746 +++$+++ 46015 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Phillips, the fundamental problem, at least for me, in this case is that there was no objection at all at trial to the instruction that the judge gave on negligence. There was an instruction requested by the defendant on contributory negligence, which read, "such negligence of plaintiff contributed in whole or in part to cause his injury." That was the only instruction objected to, because the refusal to give that instruction. But you seem to be using that as a lever to attack the instruction on negligence to which no objection was made.
05-746 +++$+++ 46016 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's not our attack, Justice Ginsburg. Our objection, which is reproduced in 28A of the cert -- of the petition's appendix, that says -- and I think the current MAI instruction has a different causation standard for comparative fault, meaning that Official under Missouri's rules, we must prove that such negligence of plaintiff directly contributed to the cause -- to cause the injury. And that misstates the law, because of the doctrine of equivalence. That's our initial argument, is that no matter how you analyze this, whether you do it from a proximate cause or a slightest cause standard as the appropriate way to evaluate our negligence, that same standard has to be applied in evaluating the plaintiff's negligence. That's the core doctrine. That's what we sought certiorari on. The argument with respect to Rogers was not an argument we put into this case, Justice Ginsburg. It's an argument that the Respondent put into this case.
05-746 +++$+++ 46017 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I take it you would be satisfied -- not wholly satisfied, but substantially satisfied if we said, yeah, we accept the doctrine of equivalence, and we think the instruction on contributory negligence was correct. Because that would mean in the next case, you would get a proximate cause instruction on defendant's negligence.
05-746 +++$+++ 46018 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would regard that as certainly at least half a loaf, maybe more than half a loaf. But at the end of the day, I think the right answer in this case is that the Court ought to go ahead and decide Official whether or not Rogers really did work a sea change in the law.
05-746 +++$+++ 46019 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If we came out the way I just described --
05-746 +++$+++ 46020 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You wouldn't have to address that issue.
05-746 +++$+++ 46021 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We wouldn't have to.
05-746 +++$+++ 46022 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely don't have to address that issue. On the other hand, the question is squarely presented. And --
05-746 +++$+++ 46023 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I thought you argued the Rogers standard was a correct standard in the Missouri court?
05-746 +++$+++ 46024 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We clearly did that, Justice Kennedy. And we didn't raise -- we are not here complaining about Rogers as an argument for why we shouldn't be liable. That's not our -- we're not criticizing that. What we're saying is, in response to the Respondent's argument which seeks to undermine the doctrine of equivalence based on an overreading, I would argue, of Rogers, that that interpretation is incorrect. And if we're right that that interpretation is incorrect, we would win on the doctrine of equivalence for two different reasons. Official The first one that Justice Souter described. And the second one would be that to the extent that there's any equivalence, there's no problem here because proximate cause is required in every case. And we think that that's an issue that the Court doesn't have to decide, but certainly could. I'm sorry, Your Honor.
05-746 +++$+++ 46025 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Phillips, the defendant requested a charge on contributory negligence that read, "such negligence of plaintiff contributed in whole or in part to cause his injuries." You didn't want the direct relationship, you didn't ask for that. You asked for one that said, "such negligence of plaintiff contributed in whole or in part to his injury." Now you are saying that that was -- what you asked for was an incorrect charge.
05-746 +++$+++ 46026 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, what we're saying, Justice Ginsburg, is that we were entitled to the same -- if they were going to use slight negligence with respect to our negligence, then with respect to the plaintiff's negligence, we were entitled to slight negligence as well. That's our fundamental argument. That's the issue we have put on the table. And candidly, I don't think there's an answer to that that's been offered in this case, other than a harmless error argument, which I think is candidly without substance. Official The issue, then, is whether in evaluating the doctrine of equivalence, do you want to then entertain the plaintiff's or the Respondent's counter argument, which is that somehow Rogers requires this fundamental change, and indeed overrules the doctrine of equivalence as it applies to FELA. And I would say, one, Rogers doesn't speak to the doctrine of equivalence at all. And, two, to the extent it does speak to it, it was never meant to change the fundamental rule with respect to proximate causation.
05-746 +++$+++ 46027 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Except we've rejected petitions for certiorari on that issue at least a couple of times. Eleven circuits are in agreement as to what Rogers required. You --
05-746 +++$+++ 46028 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, at least one circuit clearly.
05-746 +++$+++ 46029 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you really expect to get five votes for the railroad on this, what would be a massive change of what is assumed to be the law for, what, 50 years?
05-746 +++$+++ 46030 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think the -- well, the answer is yes, of course, I expect to get five votes for that.
05-746 +++$+++ 46031 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you were wise enough not to ask for that. (Laughter) Official
05-746 +++$+++ 46032 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But you know, the basic -- the point here is that if you look at the decisions that have analyzed this Court's opinion in Rogers, I don't think any of them has analyzed it with much care. And the reality is the Third Circuit has analyzed this case with care, and reached the opposite conclusion. We think there is a split in the circuits. And at some point, if not through this vehicle to address that issue, then through another vehicle to address that issue. But, yes, it seems reasonably clear that, first of all, there were at least 20 decisions of this Court dealing not only with the sufficiency evidence, but also with the adequacy of the jury instructions prior to Rogers that refer specifically to proximate causation. There is nothing in the statute that remotely meant to change that. There is nothing that's been identified in that context. It is at least clear to me, and I hope clear to five of you --
05-746 +++$+++ 46033 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Rogers said, in whole or in part. Now, I agree with you, that I don't see how that does it. But Rogers said that it did it.
05-746 +++$+++ 46034 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But what Rogers saying in whole or in part eliminated was the specific proximate causation standard existing in Missouri. And Missouri's proximate cause standard talked about sole causation. And this Official Court said, no, in whole or in part means sole causation can not be the right standard for proximate cause. The Court was not asked to decide, and I don't think it did decide, that proximate causation, as it is traditionally understood, was also thrown out the door, or more fundamentally, that you can never ask for a jury instruction that calls for proximate causation to be given to both parties -- I'm sorry.
05-746 +++$+++ 46035 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Phillips, I may be lost a bit here. But I mean, which -- I'm looking at the instructions that were given. And it seems to me it is hard to take issue with the instruction on the railroad's part because it tracks the statutory language. The statute says in whole or in part, and the instruction says in whole or in part. So if you're pushing the doctrine of equivalence, your objection seems to be to the directly contributed language with respect to the employee, the plaintiff. Now, but doesn't directly contributed, isn't that a typical proximate cause instruction?
05-746 +++$+++ 46036 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that is a typical proximate cause instruction, and that meant that our burden was heavier than the plaintiff's burden, which is why we're saying that under the doctrine of equivalence, we're entitled to the equivalent instructions. Whatever they Official are. If it is slight cause or proximate cause.
05-746 +++$+++ 46037 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right. But on the other hand, you're also arguing in favor of proximate cause. You are saying Rogers didn't change proximate cause.
05-746 +++$+++ 46038 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. But we are only doing that in response to the Respondent's argument. I'm not -- we didn't bring to this Court an affirmative argument that said we are entitled to no liability because of proximate cause. That's not the argument we made. The argument --
05-746 +++$+++ 46039 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How is the blue brief in response to Respondent's argument?
05-746 +++$+++ 46040 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because if you look at the opposition to the cert petition, which took us to task for not discussing Rogers in our petition, it says on page 6, "inexplicably, petitioner does not cite, let alone discuss Rogers, an omission that enfeebles its entire discussion of FELA's causation standards." Against that kind of an attack, we felt it incumbent on us to deal with Rogers.
05-746 +++$+++ 46041 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ As we're supposed to decide the case, in your view, there was instruction 13. Instruction 13 used the word direct.
05-746 +++$+++ 46042 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-746 +++$+++ 46043 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You object to 13. You said it should use the word in whole or in part. Official
05-746 +++$+++ 46044 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-746 +++$+++ 46045 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You then argued to the lower courts, 13 should use the word in whole or in part. And then you say you've argued that here. So what you're saying is now we're supposed to decide, should instruction 13 use the word in whole or in part. That's what it is. I have to admit, I didn't quite get that out of the blue brief. I thought you were arguing something else about railroad negligence. But you're not now, you say, arguing about railroad negligence. You're arguing about plaintiff negligence.
05-746 +++$+++ 46046 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, we're arguing both.
05-746 +++$+++ 46047 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right. So if I reread the blue brief, what I'll discover on closer examination, that your real objection, not responding to the other side, has simply been about the standard to use in respect to plaintiff's contributory negligence. And what you want this Court to say is, you're right about that, we want the more relaxed standard used for contributory negligence. End of case.
05-746 +++$+++ 46048 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-746 +++$+++ 46049 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes?
05-746 +++$+++ 46050 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-746 +++$+++ 46051 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It says that in the blue brief? Official
05-746 +++$+++ 46052 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, it does say that in the blue brief. Because what we say is that the doctrine of equivalence is the principle that should apply. And you know, it is not specifically before the Court whether that means slight cause or proximate cause.
05-746 +++$+++ 46053 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I would say it sure is before the Court, because what we are considering before the Court is your objection to instruction 13. And you said it should use the words in whole or in part. And I have to admit, I don't know why it shouldn't. But I'll have to ask them that.
05-746 +++$+++ 46054 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's fair.
05-746 +++$+++ 46055 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're going to say yes. So all this other stuff is quite extraneous about whether -- the railroad standard of negligence, the railroad should be in a relaxed standard of negligence, in whole or in part.
05-746 +++$+++ 46056 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't know that it's --
05-746 +++$+++ 46057 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Causation.
05-746 +++$+++ 46058 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know that it's extraneous. It clearly is not something that the Court needs to decide. On the other hand, it is something that the Respondents, to my mind at least, put into the case. And then we responded, to be sure, somewhat aggressively in urging the Court to rethink whether Rogers was right -- Official whether Rogers really decided this issue as some courts of appeals have.
05-746 +++$+++ 46059 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Perhaps my memory is faulty, but as I recall your opening brief, many pages were devoted to what instruction should have been given on railroad negligence. You were dealing not simply with what seems to be the question presented, that is, was the instruction on contributory negligence wrong, because it said -- it didn't use the in whole or in part language. Instead it said directly caused. So that's the limit of what we can deal with, whether the in whole or in part should have been in the contributory negligence. But it was your brief that spent a lot of time talking about the proper standard for the railroad's negligence.
05-746 +++$+++ 46060 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is no question about that, Justice Ginsburg. But the point is that we made both arguments. And they are in some ways intertwined, in part because so much of the doctrine of equivalence itself is based on proximate cause as the standard. And so if you go back and look at all of the common law analyses here, which are the predicate --
05-746 +++$+++ 46061 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you didn't object to the charge that was given on negligence. You didn't object to the in whole or in part. So that should be out of the Official case.
05-746 +++$+++ 46062 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Except to the extent that the Respondents are asking you to interpret Rogers as a mechanism for getting at the doctrine of equivalence. Now, it seems to me you can answer that in one of two ways. You can say simply, as I said to Justice Scalia, Rogers doesn't speak to the doctrine of equivalence, and therefore, you don't have to entertain that, you should just reaffirm a doctrine that every court except the courts in Missouri have recognized for a very long time. Or alternatively, you can say, well, look, they say that in order to properly analyze the doctrine of equivalence, you should examine whether or not Rogers worked a sea change in the law. And we took them up on that argument, and said, we don't think it did. And that if it didn't work a sea change in the law, then there is no basis at all for doubting that you would grant equivalent instructions in these two cases. And that's the guidance you would give to the lower courts on remand. Because this case would have to go back for a new trial.
05-746 +++$+++ 46063 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're not taking them up on any argument when you spent half your brief arguing about what the proper standard was for the railroad's Official negligence.
05-746 +++$+++ 46064 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I would add to that that we don't usually look at a BIO to see the issues that the Petitioner is presenting.
05-746 +++$+++ 46065 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And you know, Justice Kennedy, I understand that. But the reality is we raised the doctrine of equivalence as our question presented. The other side raises and uses a substantial amount of its pages for the issue of the meaning of Rogers. We answer that in the reply brief. The Court grants certiorari. We decided under those circumstances that the sensible way to proceed was to address the Rogers issue. Now, to be sure, I suppose we could have said, here's -- section one is the doctrine of equivalence. That's a 10 page brief. Maybe the better way to do it is just write a 15 page brief, wait for their 47 page brief on Rogers, and then 20 pages on Rogers. But we anticipated that they were going to do precisely what they did, which is --
05-746 +++$+++ 46066 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you would have us announce a decision on the doctrine of equivalence without saying which way it should be made equivalent? Raising the railroad's standard or lowering the employee's?
05-746 +++$+++ 46067 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because -- courts of appeals Official have been doing that for years. There have been a lot -- you know, a lot of them assume that there's a lower standard, and they say that the doctrine of equivalence requires that if the plaintiff gets to go with slight cause, then the defendant gets slight cause. So that's a ruling that's been rendered for years and years. Is that the most sensible way? I don't know. I think it would make sense for this Court to address the more fundamental issue of Rogers. Because I think it is an important issue that needs to be decided. I don't think the Court needs to decide it. I do think it has been thoroughly vetted for the Court on both sides, and it would certainly provide significant guidance to the lower courts.
05-746 +++$+++ 46068 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Phillips, may I ask you this question. Assuming you're right on the doctrine of equivalence and you're wrong on proximate cause, for the moment. Now, you said earlier in your argument, it is perfectly clear there was no harmless error here.
05-746 +++$+++ 46069 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-746 +++$+++ 46070 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It seemed to me that a possible interpretation of the record -- and I'd like you to comment of the record -- is that the jury either believed the one -- one truck driver or the other. And that the direct causation thing really didn't have an impact on the calculation of Official damages. And I was going to ask you to comment on that and to tell me whether during the argument of the case before the jury, did the plaintiff's lawyer argue, in effect, that he had -- the railroad has a much heavier burden of proving a causation than we do?
05-746 +++$+++ 46071 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Let me take the first question first, and then I'll address the second one. There were three theories that the plaintiff put forward of the negligence of the railroad. Not just that the one driver drove the other driver off the side of the road. There was also a claim that the road wasn't constructed properly, and there was a claim that he wasn't given adequate safety instructions. And there's no way, given that this was a general verdict, to remotely figure out which of those theories was the one the jury thought was correct, and how that theory might line up with a causation theory, based on the plaintiff's own particular view and the defendant's arguments in this particular case. So it is not as cut and dried as he said, he said, and that's it. They were more theories in it. And you know, if you accept the idea that jury instructions count, and there's clearly a very different burden that's imposed on one as opposed to the other, then it seems to Official me the answer is there's no way for the Court to make a harmless error determination. It is also a question of State law. It ought to be decided by the Missouri courts in the first instance in any event, I would think, rather than this Court trying to sort through the record. With respect to the argument at the close of the case, I don't remember any specific arguments that either side made with respect to the burdens, because the jury instructions were what they were. And I think each side was saying, you know, we really didn't do anything wrong. And so that's basically the way that it was presented. But I think given the way the jury instructions played out, that there's no way at this time to unscramble that.
05-746 +++$+++ 46072 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think I'm seeing now, I think the structure of your brief is -- perhaps a gloss put on it, but saying this: Look, we objected to the contributory negligence instruction on the ground that it couldn't be different from the direct instruction -- from the railroad instruction. And we said they should be the same and they should both be in whole or in part.
05-746 +++$+++ 46073 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
05-746 +++$+++ 46074 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And we now want you to say that Official the refusal of the court to do that was wrong, because it violated the equivalence. But as soon as you do that, you're going to have to think about what the right standard should be for a new trial.
05-746 +++$+++ 46075 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-746 +++$+++ 46076 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if you stop there, probably, they will put the in whole or in part, but that's not the right standard.
05-746 +++$+++ 46077 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
05-746 +++$+++ 46078 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if you really think about it, you will see that the one we didn't ask for, but the one that the court gave, is the right standard and should have been given in the other case, too. Now, we wouldn't have to say that.
05-746 +++$+++ 46079 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-746 +++$+++ 46080 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you're saying unless you say that, you're not going to give proper instruction to what happens in the future. Now --
05-746 +++$+++ 46081 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You know, that's --
05-746 +++$+++ 46082 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now let's think back for a minute on the merits.
05-746 +++$+++ 46083 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry?
05-746 +++$+++ 46084 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How could it be wrong? How could it be wrong to have instructed the jury with the in whole or in part language for the railroad, since that's the Official language of the statute itself?
05-746 +++$+++ 46085 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think if we were entitled to go back to the trial court, and if the issue was what's the proper instruction, we would have asked for and we should have properly received a proximate cause instruction. And that's what -- that's the question that will be at issue on the remand.
05-746 +++$+++ 46086 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What possible -- you have two sides. One, you write a proximate cause instruction in whatever language you like.
05-746 +++$+++ 46087 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-746 +++$+++ 46088 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The other side submits a proposed instruction with in whole or in part. I'm a trial judge. I've never heard of this case, kind of case before. I just was appointed. I read the statute. And I say, well, here, theirs says what the statute says, and yours doesn't. I'll play it safe. I'll go with the statute. All right? Now, how could that be an error?
05-746 +++$+++ 46089 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it is not a correct statement of the law.
05-746 +++$+++ 46090 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right.
05-746 +++$+++ 46091 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Is the answer.
05-746 +++$+++ 46092 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In other words, what the statute said it is not a correct statement of the law?
05-746 +++$+++ 46093 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because it doesn't adequately Official explain to the jury what decisionmaking it has to go through in order to evaluate this case. I mean, it is true, it is not an incorrect statement in the sense that there's nothing wrong with it. But it is not an adequate statement because it doesn't deal, it is not sufficient, it doesn't deal with the proximate cause issue. I mean, it seems to me --
05-746 +++$+++ 46094 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Phillips, may I interrupt on exactly the point that I think you're addressing with Justice Breyer? As I understand your argument, you're saying one view of Rogers is that the in whole or in part language eliminates the proximate cause instruction. We all agree that that is one view of Rogers.
05-746 +++$+++ 46095 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-746 +++$+++ 46096 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it also does something else. And I don't think we disagree about that either. It specifically instructs the jury that multiple causation may be present. And if it is, if the defendant is at least one, the source of one of those causes under Rogers even slightly --
05-746 +++$+++ 46097 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-746 +++$+++ 46098 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- that that will suffice. The problem I have with -- in a way with your response to Justice Breyer, and the problem that I have with the instruction that your side requested on contributory Official negligence is this: It seems to me that the in whole or in part language would be wrong on contributory negligence, or at least it would be very misleading, for the simple reason that you never get to contributory negligence unless you found the defendant was negligent in the first place.
05-746 +++$+++ 46099 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-746 +++$+++ 46100 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And therefore, if the plaintiff is also negligent, it will necessarily be in part. It couldn't be wholly or in part. If it were wholly negligent, you would never have found the defendant was negligent in the first place.
05-746 +++$+++ 46101 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
05-746 +++$+++ 46102 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that to the extent the instruction addresses multiple causation, it would be misleading to the jury, and it would assume a possibility that couldn't happen. Therefore, if you are not going to mislead the jury on multiple causation when you instruct on contributory negligence, you've got to have some other way of addressing the proximate cause language. Is that analysis right or wrong?
05-746 +++$+++ 46103 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think it is wrong on two levels. One is, I don't know why you would need to have proximate cause as your fallback, the last comment you just made, because it seems to me if you're saying slight Official cause, which is what Missouri thinks the in whole or in part means, then you can just say slight cause when you're describing the contributory negligence.
05-746 +++$+++ 46104 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. But the instruction that your side asked for, as I understand it, was not a slight cause instruction, it was an in whole or in part instruction.
05-746 +++$+++ 46105 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What we asked for was an equivalence.
05-746 +++$+++ 46106 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, and that -- all right. But if you're asking for the in whole or in part instruction on contributory negligence, it seems to me the judge has got to have been correct in saying no to that, because to the extent that it addresses multiple causation, it would be addressing a problem that couldn't even occur in contributory negligence which will always be in part.
05-746 +++$+++ 46107 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That was not the basis on which the judge rejected it. He didn't reject it on the basis --
05-746 +++$+++ 46108 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, maybe that was not the basis on which he rejected it, but if -- we've got to consider it in deciding whether to reverse it.
05-746 +++$+++ 46109 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the point here that remains is we said we are entitled to an equivalent instruction. Now, if there's some variant of that, we could certainly argue about that. Official
05-746 +++$+++ 46110 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that's not what he said. He said equivalence instruction was not on multiple causation. It was the equivalence instruction on either proximate cause or not proximate cause. It was the causation issue, it was the proximate causation issue, not the multiple causation issue that concerned you, right?
05-746 +++$+++ 46111 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that is the specific issue in this case.
05-746 +++$+++ 46112 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They don't have to have proximate, we don't have to have proximate.
05-746 +++$+++ 46113 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. That's our argument.
05-746 +++$+++ 46114 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. But because the instruction addresses both, in one view, proximate cause and multiple cause, it would have been misleading so far as the multiple cause issue was concerned, and a request for an instruction in whole or in part on contributory negligence really should have been denied. Is that correct?
05-746 +++$+++ 46115 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well -- I think -- I think the argument would be that that cuts it too fine, candidly. I think you can make an argument that what, you know, what we were entitled to was some variant. And that -- our objection here is not --
05-746 +++$+++ 46116 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You were entitled -- your Official argument is you were entitled to an equivalent instruction on the issue of the need to prove --
05-746 +++$+++ 46117 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The slightest cause.
05-746 +++$+++ 46118 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- proximate cause or no need to prove proximate cause.
05-746 +++$+++ 46119 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-746 +++$+++ 46120 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's your basic argument.
05-746 +++$+++ 46121 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's our basic argument.
05-746 +++$+++ 46122 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
05-746 +++$+++ 46123 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And we didn't get that.
05-746 +++$+++ 46124 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I don't think you could have gotten where you want to go with the instruction that your side requested, which was an in whole or in part instruction. That's my only point.
05-746 +++$+++ 46125 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it may be that the in whole part of this may have been slightly misleading, although I think you can make an argument that you can end up with in whole on both sides as a conceptual matter. But that's not the -- that wasn't the complaint at trial. It wasn't the basis for the trial judge's decision, wasn't the basis for the court of appeals decision. If the Court wants to send it back and say, is there another objection to this instruction, that's fine. But it seems to me, this Court ought to address this issue in the way it has been presented. Official
05-746 +++$+++ 46126 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What was wrong with the instruction, in your view of the case, that was given, instruction number 13, negligence of plaintiff directly contributed to cause his injuries?
05-746 +++$+++ 46127 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because that's proximate causation. And that's higher than we were required to prove under a doctrine of equivalence, Your Honor.
05-746 +++$+++ 46128 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's the direct language?
05-746 +++$+++ 46129 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-746 +++$+++ 46130 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yeah.
05-746 +++$+++ 46131 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would like to reserve the balance of my time.
05-746 +++$+++ 46132 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Phillips. Ms. Perry?
05-746 +++$+++ 46134 +++$+++ FALSE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The controlling question raised here is whether instruction 13 accurately states Federal law. That's exactly what petitioner said in their reply brief to the Missouri Court of Appeals. They could not have been any clearer that their challenge was to instruction 13. In John versus Poulin, this Court said that State courts Official have the authority to prescribe the rules of procedure in their courts even when Federal issues are at stake. The requirements in the Missouri courts were not complied with here. No abstract question was presented. The sole question presented and preserved was with respect to instruction 13. And that can again be seen in their opening brief in the Missouri Court of Appeals, which specifically says the trial court erred in giving instruction 13 based on MAI 32.07(b).
05-746 +++$+++ 46135 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is the question whether instruction 13 is flawed viewed in isolation, or whether it is flawed when it's viewed together with the instruction on employer negligence?
05-746 +++$+++ 46136 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is viewed in conjunction with the instruction on employer negligence, but a fixed concept of what it was, they did not challenge the language of instruction 12. They accepted that. Holding that language constant, what should we do to instruction 13? They could have objected to instruction 12 and 13, and they could have said, here are a pair of instructions both in proximate cause, and here are a pair of instructions both in -- resulting in whole or in part, and then they could have preserved this issue. But they did not do that. They accepted instruction 12 as a correct statement of the law, and said, now let's look at Official instruction 13.
05-746 +++$+++ 46137 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But do you agree that they set out different causation standards, 12 and 13?
05-746 +++$+++ 46138 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, they do. Rogers concluded that 50 years ago and the courts in the Federal and State system have nearly uniformly interpreted Rogers as reaching that decision.
05-746 +++$+++ 46139 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So if the causation standards are in fact the same, then instruction 13 is defective; isn't that right?
05-746 +++$+++ 46140 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, if you can reach that decision without interpreting instruction 12, or the propriety of instruction 12, particularly since instruction 12 contained the exact language of the statute. Whatever judicial gloss has been put on that language was not told to the jury. Justice Stevens, the question you asked, whether there was any argument about the different standards, the answer is no. There was no argument. The only way in which the jury learned of this difference was in the language of the instruction. And instruction 12 --
05-746 +++$+++ 46141 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me ask you this question, if I may. Perhaps I should have asked Mr. Phillips. Is there such an animal as the doctrine of equivalence? I understand the restatement describes what the plaintiff's Official burden is on proving causation, and then it says the same rules apply to defendant's contributory negligence. But that doesn't sound to me like any overriding doctrine of equivalence. It just says when they wrote the restatement, the rules were the same. Is there such a thing as the doctrine of equivalence?
05-746 +++$+++ 46142 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There wasn't in the early 1900s for certain, Your Honor, because at that time, even petitioners recognized the doctrine was emerging. And if we look at the language of 53, it talks about the type of contributory negligence that used to be a bar. And that certainly was a type of contributory negligence that only arose with the traditional proximate cause. It certainly wasn't on the slightest cause standard.
05-746 +++$+++ 46143 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, doesn't there have to be a doctrine of equivalence when you're running a comparative negligence regime? Because, you know, you talk about the plaintiff's negligence causing the harm to a certain degree and the defendant's negligence causing it to a certain degree. And if you're not dealing with apples and apples, it seems to me you can't conduct the comparison.
05-746 +++$+++ 46144 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. You can conduct the comparison, and it happens all the time in cases where one party has committed intentional misconduct and Official another party has had negligent misconduct. The causation standards are different in that instance. There's a --
05-746 +++$+++ 46145 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right. But we're talking about comparative negligence here, where there's negligence on both sides. And I just don't know how you say one party's 20 percent -- contributed 20 percent to the harm and the other 80 percent, if you're using different causation standards.
05-746 +++$+++ 46146 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the causation standard is used to decide what negligence you use in the balance and in the comparison. For example, if a party is negligent, but the negligence had no causative effect, that negligence falls out of the analysis.
05-746 +++$+++ 46147 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, but your example of other instances including having to compare a defendant who did the tort intentionally with negligent -- contributory negligence, that's not what we have here. We have here a difference in the causation. Intentional or non-intentional has nothing to do with causation. But once you say that there's a difference in the causation, it seems to me you cannot compare the two. You cannot compare the two sensibly, unless you are using the same kind of a standard. I mean, let's assume that you find that the Official railroad did not directly, but nonetheless caused the injury to some extent, but the defendant was directly contributory to it. What do I do? Do I add another 40 percent to his culpability because it was -- his causation was more direct than the plaintiff's causation?
05-746 +++$+++ 46148 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
05-746 +++$+++ 46149 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why not?
05-746 +++$+++ 46150 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It just affects which negligence was in the balance. And --
05-746 +++$+++ 46151 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, it doesn't. It certainly bears considerably upon the culpability of the two, it seems to me.
05-746 +++$+++ 46152 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in responding -- going back to your question about intentional conduct, the petitioner's reply brief, in fact, states that a broader range of harms are considered proximately caused by intentional torts. So there is a different conception of proximate cause in that context. But in any event, their merits brief consistently argues for a proximate cause standard. In fact, it closes with that. And its criticism of instruction 13 in this case was precisely that it was a proximate cause standard. So if they are now before this Court asking for a proximate cause standard, they conceded that instruction 13 was a proximate cause standard, they in Official fact complained about it precisely because it was a proximate cause standard, that issue really isn't before this Court anymore.
05-746 +++$+++ 46153 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't have any conceptual difficulty with adding in whole or in part to instruction 13, which is the employee's instruction, because it's comparative negligence. It seems to me that necessarily implies in whole or in part. If you can reduce his recovery because he's in part negligent, what would be wrong with saying in whole or in part in instruction 13?
05-746 +++$+++ 46154 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think Justice Souter hit the nail on the head on that one, in that it does create confusion and it can mislead the jury that the railroad worker is responsible for other parties' culpability as well. Moreover --
05-746 +++$+++ 46155 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. I thought Justice Souter's point was that taking it out of the railroad's instruction might cause confusion because of it. But I don't see how adding it to both of them when you're dealing with comparative negligence, and it's necessarily the case that partial negligence on either of their parts can enter into the verdict, I don't see how that can be confusing.
05-746 +++$+++ 46156 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in -- Official
05-746 +++$+++ 46157 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You can answer it.
05-746 +++$+++ 46158 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't want to interrupt anybody.
05-746 +++$+++ 46159 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Answer the question, Justice Souter. Yes or no.
05-746 +++$+++ 46160 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The point that I was trying to make about it being misleading is that if you use the in whole or in part language for a contributory negligence instruction, you are misleading the jury into thinking that at least there might be whole contributory negligence. There never will be. You don't get the contributory negligence unless you've already found the defendant was negligent, at least to some degree. Therefore, if the plaintiff is negligent, it can only be in part. That's all I was trying to say.
05-746 +++$+++ 46161 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Under that scenario, then, what objection could there be to a recognition that the negligence of the plaintiff can contribute in part to the accident?
05-746 +++$+++ 46162 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If petitioner had asked for an instruction that said directly contributed in part, the inclusion of the phrase in part there might not have any impact. It could still potentially mislead the jury, but they were seeking not just to add the words "resulting in whole or in part," but remove the word "directly" because it connoted proximate cause, and that they felt proximate Official cause was not the appropriate standard for contributory negligence, even though now that is the standard that they solely are seeking.
05-746 +++$+++ 46163 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, two things you might comment on. First, the in whole or in part, you might take account of the fact that there are other negligent actors, third parties, who have contributed to the injury to the employee. Secondly, Section 53 does not contain the language in whole or in part.
05-746 +++$+++ 46164 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Your Honor. It does not. In section --
05-746 +++$+++ 46165 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's what Justice Souter has identified, right? That's not because they're adopting different standards.
05-746 +++$+++ 46166 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I disagree, Your Honor. I think it is because they are adopting different standards. The contributory negligence --
05-746 +++$+++ 46167 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you just told me, a good reason for not putting in whole or in part in instruction 13 is because it doesn't make sense, the whole part doesn't make sense with contributory negligence. That's a good reason not to put it in Section 53 either.
05-746 +++$+++ 46168 +++$+++ TRUE +++$+++ MR. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's one reason. But another reason Official is that it's a different standard. In Section 53, they're talking about contributory negligence that was a bar to liability. That type of contributory negligence was the kind that was more than -- it wasn't caused by slight causation. It required proximate cause. That was a pretty harsh result. And it certainly didn't arise in instances where the plaintiff had just had the slightest causal connection. And that certainly was the conclusion in Rogers.
05-746 +++$+++ 46169 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, no, no. May I pick you up on that? Because there's a point at which you and I are disagreeing about Rogers. And in all candor, I think it's because you are ignoring one part of Rogers, and if I'm wrong, I want you to tell me. You quote the slightest bit language from Rogers on both page 26 and 33 of your brief. And you take that as being language that eliminates the proximate cause requirement. What you don't include in your quotation is the footnote in Justice Brennan's opinion following that slightest cause language. And the footnote was to a citation, the citation was to the Coray case. The opinion in Coray was written by Justice Douglas and -- I'm sorry, Justice Black. And in the very language that Justice Black used, he said expressly that if proximate Official cause is shown, there can be recovery. Now, given the fact that in Rogers, the very citation to the language which you say eliminated the proximate cause requirement cited a case in which proximate cause was part of the very sentence relied on, I don't see how you can read Rogers -- maybe later cases, but I don't see how you can read Rogers as eliminating the proximate cause requirement. And therefore, I think you have to read Rogers as addressing the issue of multiple causation, not proximate causation. Now, am I going wrong there somewhere?
05-746 +++$+++ 46170 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I have two responses, Your Honor. First, Justice Brennan wrote Crane twelve years later.
05-746 +++$+++ 46171 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Absolutely right.
05-746 +++$+++ 46172 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And he, you know, definitely clearly said that a railroad worker does not have to prove common law proximate causation relying on Rogers.
05-746 +++$+++ 46173 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He did, but he was also pointing out, just to make it simpler, he was pointing out in Crane that the liability arose in Crane out of -- I forget the full name of it -- the Appliance Act. And the Appliance Act had its own set of standards. And therefore, you cannot, from an Appliance Act case, you cannot infer anything one way or the other about the general standard in FELA. And to make it even more Official complicated, as I recall, Rogers was an Appliance case, too, but he didn't get into that there. But my only point is, you are right about the two Brennan opinions, Rogers and the -- Crane. But given the fact that it was an Appliance case, I don't think you can infer one thing or another about an ultimate FELA standard in the absence of an Appliance action. What remains is that the citation in Rogers was to Coray, and Coray spoke about there still being proximate cause.
05-746 +++$+++ 46174 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. But if we look at those earlier cases, particularly Coray, we can see that Rogers articulated what was meant by that proximate cause language. Proximate cause is, in a sense, a label for scope of liability or legal cause, as the restatement says. It doesn't have any singular conception. And in Coray, the Court found --
05-746 +++$+++ 46175 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it is understood by everybody, isn't it, that at least it has the conception which is captured by using the word "direct" as in instruction 13, and at least it has that core of meaning whenever it is used, doesn't it? In other words, it may not have a lot of bells and whistles associated with it in the prior law, but at least it requires some direct causation as opposed to Official indirect, right?
05-746 +++$+++ 46176 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-746 +++$+++ 46177 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. And that's -- I don't know that Justice Brennan's citation to Coray, or Coray's use of the language carries you any further than that. But that's as far as Mr. Phillips wants to go.
05-746 +++$+++ 46178 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't accept that, but even if that's the case, the Rogers -- the parties to Rogers immediately interpreted that decision as affecting proximate cause. Twelve years later, this Court did say that in Crane. The lower courts have uniformly, nearly uniformly interpreted Rogers in a certain way. And at this point, stare decisis suggests that this Court should not overrule.
05-746 +++$+++ 46179 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That may be. That may be. But it seems to me that that's a different argument from saying Rogers requires it, because I don't think you can get that out of Rogers.
05-746 +++$+++ 46180 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, and I also think, though, that by lightening -- by saying the slightest cause possible or, you know, a slight cause would create liability, that does affect proximate cause.
05-746 +++$+++ 46181 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't have to say that. I mean, you know, when in doubt, we ought to follow the words of the statute. And so whole or in part Official makes sense with the railroad, but directly doesn't appear in Section 53. Why don't we just -- why shouldn't the instruction just say, "such negligence of the plaintiff contributed to cause his injury." It's not going to be a complete bar because we know the immediate -- the next instruction talks about reducing the award by the amount of the negligence. Why wouldn't that be preferable to introducing extraneous terms?
05-746 +++$+++ 46182 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because Section 53 refers to contributory negligence that created a bar. And that was the type of negligence that required proximate cause. Moreover, the type of instruction you are positing is not at all what petitioner requested in this case.
05-746 +++$+++ 46183 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, no, but he requested that the instructions be the same, and the directly is what causes the problem, and directly doesn't appear in the statute.
05-746 +++$+++ 46184 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But under Missouri procedures, you have to be clear in the nature of your objection, and the objection was that we want the same language, we want the language resulting in whole or in part. And out of respect for the State courts and their right to create the rules that govern in those courts, that was not satisfactory under Missouri rules. Missouri rules also have specific requirements for what you have Official to do in the court of appeals. There's a "Point Relied On" which is the argument heading in the brief, and it's required by Rule 84.04. And it sets forth a very specific format, and it's supposed to start with "The trial court erred in," and then you give your reasons. And it says that negligence -- it erred in instructing the jury to find plaintiff negligent only if it concluded that his negligence directly contributed to cause his injury, rather than cause his injury in whole or in part. You know, there is no issue that was preserved in the Missouri courts other than that challenge. Cook versus Caldwell which we cite in our brief, in Missouri, not only do you have to object, but you have to keep consistent with the basis of the objection. You can't just object to instruction 13 on one ground, go up to the court of appeals, and raise a completely different challenge to instruction 13. You have to stay consistent. And out of respect --
05-746 +++$+++ 46185 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think they raised an objection based on the doctrine of equivalence?
05-746 +++$+++ 46186 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was a justification for rewriting instruction 13 to include the words "resulting in whole or in part." I do not think they raised an abstract argument about equivalency; that in order to do that, Official they would have had to object to instruction 12 and instruction 13, because equivalency in the abstract would require modification of both instructions, and they clearly chose to accept the language of instruction 12 and only object to instruction 13. So no, not in the abstract, it hasn't been raised. It was a justification for one particular result, and that was a result that would have modified instruction 13. And in a particular way, too, modified it in a way of including the words "resulting in whole or in part."
05-746 +++$+++ 46187 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I guess they want to make the argument now, whether they did or not, that if we look at Section 53, which I think is the part dealing with contributory negligence. I don't see anything else. It doesn't speak of causation at all.
05-746 +++$+++ 46188 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly, Your Honor.
05-746 +++$+++ 46189 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It just says if there's some contributory negligence, the damages will be diminished according to the negligence attributable to the employee. So I take it their argument was, maybe with hindsight, Judge, don't give this direct language, because nothing requires it. And since, other things being equal, nothing requires it, you ought to give the same language you gave for the other side. And they said the judge rejected that argument, so Official now they tell us, well, that was wrong, he should have accepted it. And all the rest of what he's saying is just in case the Court wants to reach it, or something like that. But what about that one?
05-746 +++$+++ 46190 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor. Could you --
05-746 +++$+++ 46191 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I mean, should we answer the question he now -- perhaps in his minimalist position -- might want to raise, or maybe did, that Section 53 doesn't speak of causation, the judge gave a causation instruction. The judge's causation instruction in their view was wrong, and the law requires the judge's causation instruction on contributory negligence, if there is one, to be the same as it was on direct, the defendant's negligence. And he says that isn't what happened, we objected to it, we produced arguments, one of them was this equivalence thing. So he's saying to us: Decide it, say that they were wrong. What's your view of that?
05-746 +++$+++ 46192 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We disagree with petitioner.
05-746 +++$+++ 46193 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not surprised. (Laughter.)
05-746 +++$+++ 46194 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The abstract question of equivalency --
05-746 +++$+++ 46195 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. That's just an argument.
05-746 +++$+++ 46196 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. Official
05-746 +++$+++ 46197 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It was not, but they say, nonetheless, we did object that this instruction was wrong. One reason it was wrong is because it speaks of causation differently than when they spoke of causation in respect to the railroad. We thought that was a reason why it was wrong then. We think that's a reason why it is wrong now, and we would like the Missouri court, but they wouldn't do it, so we want you to say it was wrong for that reason.
05-746 +++$+++ 46198 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think we're in a difficult position right now, because they're asking for proximate cause in their blue brief --
05-746 +++$+++ 46199 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, we say, well, we'll abandon all that, that's just a series of different arguments that we'd like the Court to say.
05-746 +++$+++ 46200 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. If we're putting aside the blue brief then --
05-746 +++$+++ 46201 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you read it carefully, you'll see it, basically. (Laughter.)
05-746 +++$+++ 46202 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But if the question goes to the fact that Section 53 doesn't have an express causation standard in it, what you fall back on is traditional proximate cause, that Congress departed from the traditional proximate cause standard by using the words Official "resulting in whole or in part" in Section 51. It didn't create the same departure in Section 53. In fact, by referring to the kind of contributory negligence that creates a bar, it was pretty much pointing right back to proximate cause.
05-746 +++$+++ 46203 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can you have more than one proximate cause?
05-746 +++$+++ 46204 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe the treatises that say yes.
05-746 +++$+++ 46205 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course. So then how can "in whole or in part" possibly eliminate the proximate cause requirement, because it could be in part and still be a proximate cause. How can that language possibly be interpreted to eliminate the proximate cause requirement?
05-746 +++$+++ 46206 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because when a cause that -- when a slightest cause can give rise to liability, that has effectively reduced or relaxed that causation standard. There is still a legal cause requirement, yes.
05-746 +++$+++ 46207 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it could be the slightest direct cause, which is Justice Scalia's point.
05-746 +++$+++ 46208 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but if we look at like the first --
05-746 +++$+++ 46209 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, it may mislead the jury if that's all you say. But as a matter of analyzing the statute or even of analyzing what the Court meant in Rogers, you can have a slight but direct cause, and that Official would be proximate cause in the traditional analysis; isn't that so?
05-746 +++$+++ 46210 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, no. The Restatement, for example, at the time of Rogers talked about substantial factors, and talked, in other words --
05-746 +++$+++ 46211 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How can you say no when you acknowledge that the prior law when there was contributory negligence used to require proximate cause for both the negligence of the defendant and for the contributory negligence of the defendant? Such a situation could not exist unless proximate cause doesn't have to be the sole cause. It can be just the cause in part, right?
05-746 +++$+++ 46212 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
05-746 +++$+++ 46213 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So the mere fact that we had contributory negligence statutes that were applying proximate cause requirements demonstrates that a proximate cause can be a cause in part.
05-746 +++$+++ 46214 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, but what Rogers and the statute recognizes that it can be a very, very slight cause. And what it was understood, for example, in the --
05-746 +++$+++ 46215 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's what Rogers might have said, but the statute doesn't say anything about slight cause. It only says in whole or in part. Official
05-746 +++$+++ 46216 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And neither did the instruction. It just used the words "resulting in whole or in part" also. But Rogers did interpret the language "resulting in whole or in part" as meaning playing any part, even the slightest. And that has been the law for 50 years. And it would be a massive change in the law, as Justice Scalia said earlier, for this Court to depart from that at this point in time.
05-746 +++$+++ 46217 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It doesn't seem to me that slight is the opposite of proximate. It could be a slight proximate cause.
05-746 +++$+++ 46218 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Restatement at the time of Rogers talked about substantial factors, and in the comment to that, it explains that sometimes the other causes can be so predominant that one causation is just not sufficiently significant or of sufficient quantum to constitute a legal cause. So there is a component of quantity within the concepts of proximate cause. I believe their reply brief talks about substantial factor, and to talk about something as being a substantial factor does have a quantum component to it, just as slight has a quantum component to it. A slight cause could not be a substantial factor, or oftentimes would not be a substantial factor. So the two really do go hand in Official glove.
05-746 +++$+++ 46219 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But under the old rule that plaintiff's negligence in whatever degree was an absolute bar to recovery, wasn't the rule customarily stated that plaintiff's negligence, however slight, was a total bar to recovery?
05-746 +++$+++ 46220 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not aware of that, Your Honor. It may be.
05-746 +++$+++ 46221 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought it was. I may be wrong about that.
05-746 +++$+++ 46222 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I am not aware of that. So that would be a pretty harsh remedy if that were the case.
05-746 +++$+++ 46223 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's what I thought. Yes, I thought it was a pretty harsh rule.
05-746 +++$+++ 46224 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And clearly, Congress in this statute was trying to move away from the common law in many respects to protect the railroad worker. And the interpretation of Section 51 as lightening the causation standard for the defendant's negligence, but leaving intact the traditional proximate cause standard for plaintiff's contributory negligence completely comports with the purpose of Congress in enacting the statute.
05-746 +++$+++ 46225 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why isn't "in whole or in part" simply the logical corollary of introducing comparative negligence? Why do you have to read that as Official departing from proximate cause, instead of simply recognizing that under 53, negligence on the part of the employee can reduce recovery which -- without barring it?
05-746 +++$+++ 46226 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I reach that conclusion on the basis of Rogers. And in the petitioner's brief --
05-746 +++$+++ 46227 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Beyond that, if the plaintiff's negligence was in whole the cause of the action, then the -- there was no reason to get to comparative negligence or contributory negligence, because by hypothesis, there would have been no negligence by the defendant.
05-746 +++$+++ 46228 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-746 +++$+++ 46229 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's why you don't have "in whole or in part" in 53, not because they wanted to depart from proximate cause there, but because, as Justice Stevens pointed out, you wouldn't have it in whole or in part.
05-746 +++$+++ 46230 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Even the petitioner's brief describes the language "resulting in whole or in part" as an elaboration of proximate cause. They recognize that it has bearing on proximate cause. And so if it has bearing on proximate cause in Section 51, it certainly would have bearing on proximate cause if it was incorporated into the language of the instruction on contributory negligence. So that may be one reason for not including the Official language, but another reason is that it does affect the causation standard and Congress did not incorporate it in Section 53, whereas it did have it in Section 51. And when it modified the statute in 1939 for assumption of the risk, to abolish assumption of the risk, it did not equate proximate cause and "resulting in whole or in part" necessarily as the same thing because one version had proximate cause and it was not adopted. The phrase "resulting in whole or in part" was used in its place. So suggesting that Congress may, in fact, have seen a difference, just as Rogers concluded, and I think rightly so. Moreover, as I said, that has been the law for 50 years, and it's pretty settled in this country and it would create a massive change if this Court were to depart from that. Moreover, this is not the right case to decide that because the language in instruction 12 said, "resulting in whole or in part." And petitioner has never --
05-746 +++$+++ 46231 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It is not the kind of change anybody would have relied on, is it? I mean, I find it hard to see reliance interest on this interpretation.
05-746 +++$+++ 46232 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Excuse me, Your Honor?
05-746 +++$+++ 46233 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I find it hard to see any reliance interest on this 50 year old interpretation. Official Is there anybody doing something differently because they believe that the railroad does not have to be accused of proximate causality? Does anybody act differently because of that rule? I don't think so.
05-746 +++$+++ 46234 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, for Mr. Sorrell in particular, I mean, he acted, that he allowed that instruction to be used, and now they're attempting to disrupt this judgment.
05-746 +++$+++ 46235 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I suppose employees have been under the rule for a long time.
05-746 +++$+++ 46236 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-746 +++$+++ 46237 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I suppose employee associations, workman compensation schemes and Congress have all relied on it.
05-746 +++$+++ 46238 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, you're absolutely right, Your Honor. And there is employees' compensation for railroad workers, and that may be very well be because of this interpretation of Rogers that was adopted 50 years ago.
05-746 +++$+++ 46239 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Perry.
05-746 +++$+++ 46240 +++$+++ TRUE +++$+++ MS. PERRY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
05-746 +++$+++ 46241 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Phillips, you have two minutes remaining.
05-746 +++$+++ 46243 +++$+++ FALSE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. I'd Official like to address just sort of two issues. One is the minimalist issue that Justice Breyer asked about. It seems to me that the minimalist way to look at this case is we raised the question of whether or not the Missouri standard which says that you cannot deviate from our designated instructions creates a disparity in the way you approach negligence and contributory negligence, that disparity is inconsistent with the common law doctrines, and nothing in FELA modifies it, and it's wrong. And that by itself warrants the case being set aside and a new jury being -- and a new trial. That's the simplest way to resolve the issue. If the Court wishes to go forward and deal with the issue that Justice Souter addressed, then the question is, what does Rogers mean and what do you do with this "in whole or in part" language. And if you go back -- you asked the question, Justice Souter, you know, what does the common law say. We cite this on page 38. If its negligence contributes proximately to the injury, no matter how slightly -- there must be a dozen cases that we cite in those briefs that talk about no matter how slightly. And they refer to "in whole or in part" as language that still recognizes that you still require proximate causation. The reality is nothing in Rogers remotely casts Official doubt on cases like Brady that say but-for causation is not enough, you have to have proximate causation, or Earnest, where this Court said that proximate causation is the correct jury instruction that has to be given. This Court said nothing about that in Rogers.
05-746 +++$+++ 46244 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you have in your ideal instruction the words proximate cause given to the jury, that defendant's negligence must be the proximate cause of plaintiff's injury?
05-746 +++$+++ 46245 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Ginsburg. We didn't ask for that. All I'm saying to you --
05-746 +++$+++ 46246 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you?
05-746 +++$+++ 46247 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- is that the guidance of the Court on remand, you could, and we would ask you to address that issue and to resolve it. It is fairly in front of you.
05-746 +++$+++ 46248 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But in your model instruction, in your correct instruction, would the jury be told, in order to hold the defendant liable, you must find the defendant's negligence is the proximate cause of plaintiff's injury?
05-746 +++$+++ 46249 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. That would be my preferred instruction on remand, yes.
05-746 +++$+++ 46250 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Even though almost universally, the term proximate cause has been criticized as totally Official incomprehensible to juries?
05-746 +++$+++ 46251 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let me ask this one very brief question, Mr. Chief Justice. In your view, would the doctrine of equivalence be satisfied if we simply directed that the word directly be omitted from the instruction 13?
05-746 +++$+++ 46252 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that would certainly go a long way. I don't know exactly how strictly you want to do it, but sure. I mean, that's the pivotal problem with the way that instruction reads today, Justice Stevens.
05-746 +++$+++ 46253 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Phillips. The case is submitted.
05-785 +++$+++ 46257 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Carey versus Musladin. Mr. Ott.
05-785 +++$+++ 46259 +++$+++ FALSE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: This Court has never addressed the constitutionality of photo buttons worn by spectators during a criminal trial. The two closest decisions of this Court, Estelle v. Williams and Holbrook v. Flynn established only a general rule that some courtroom practices may be so inherently prejudicial that they violate the defendant's right to a fair trial. Neither Flynn nor Williams --
05-785 +++$+++ 46260 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it went a little bit beyond that. I mean, the -- Justice Marshall announced not merely the possibility of inherent prejudice, but he spoke in terms of practices that raised a risk that improper factors would come into play in the jury decision. Isn't that the criterion?
05-785 +++$+++ 46261 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ An unacceptable risk, Your Honor.
05-785 +++$+++ 46262 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's the criterion.
05-785 +++$+++ 46263 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the test has been formulated different ways --
05-785 +++$+++ 46264 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's the way he formulated it. That's the way the Court in Flynn formulated it.
05-785 +++$+++ 46265 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In Flynn, it did, but it also, just a paragraph or so earlier said that the only question we need to answer is whether this practice, and there the courtroom uniformed guards, is so inherently prejudicial that it violates the defendant's right to a fair trial. We don't believe that those are material --
05-785 +++$+++ 46266 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That was the end point that they were reaching, and then he elaborated on that by referring to the unacceptable risk that improper considerations would come into play. And it seems to me that if you're going to talk about the criterion of the test or the standard, however you want to describe it in Flynn, you've got to get that latter point about unacceptable risk of improper factors.
05-785 +++$+++ 46267 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That certainly was a formulation of the test. It's been -- we can accept it as the formulation of the test. And it was accepted by the California courts below. They attempted to apply that test. They announced the proper -- the correct clearly established law of this Court, and then proceeded to analyze the issue. Below, however, on Federal habeas review, the circuit court of appeals used its own circuit case to define clearly established law under AEDPA. Instead of assessing the state court's application of the general rule, the circuit court narrowed this Court's general rule into one that specifically condemned buttons. Instead of granting the state court wide leeway to apply this Court's general rule, it -- the circuit court created a narrow rule that would seemingly prohibit buttons in any case.
05-785 +++$+++ 46268 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I suppose if the court of appeals had case A, and it said, we interpret the Supreme Court rule to be as follows, it could then later say in case B, this is how we've interpreted the Supreme Court rule, and we're bound by case A. This is the elaboration we've given to it. And we have to find that the state court, of course, isn't bound by what we do, but we're bound by what we do when we review what the state court has decided.
05-785 +++$+++ 46269 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor makes a distinction between a post-AEDPA case and pre-AEDPA cases. In a post-AEDPA setting, it is -- the circuit court of appeals is looking at its own post-AEDPA case -- post A-E-D-P-A, AEDPA case which has said that this set of facts constitutes an unreasonable application of clearly established law. We don't disagree that stare decisis might come into play there. It doesn't mean that that first decision was correct, but we don't -- what happened here in contrast was a pre-AEDPA decision that was used to define the clearly established law of this Court, give it more detail such that the circumstances here fell outside of it.
05-785 +++$+++ 46270 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ To apply an opinion of this Court to particular circumstances, and find that in the view of the court of appeals, it produces a certain result is not necessarily to say that that is clearly established Supreme Court law. It just means that it is their best guess as to how it comes out, right?
05-785 +++$+++ 46271 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-785 +++$+++ 46272 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, they're forced to decide it one way or the other, the Supreme Court opinion either means this or that. They're not applying a clearly established test to the Supreme Court, are they?
05-785 +++$+++ 46273 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not by doing that. However, the circuit court of appeals here expressly stated it was looking to its own circuit authority to define the law that is clearly established. It specifically stated that this case, that the state's decision was unreasonable in light of Norris. It specifically stated that the state court's decision could not reasonably be distinguished from Norris.
05-785 +++$+++ 46274 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We're looking under AEDPA at an unreasonable application of Supreme Court law. What do you do in a situation where you think the state court has incorrectly articulated Supreme Court law, but nonetheless reached the correct result? In other words, correct understanding of the established Supreme Court law would have led to the same result as their incorrect articulation of it.
05-785 +++$+++ 46275 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, at first, the -- the first thing to do would be to look at the fair import, as this Court stated in Wilford v. Biscotti. Look at the fair import of the decision. Now, I don't know if you are referring to the issue about the arguable misarticulation of the text at the end of the state court's decision here, but the first question is to look at the fair import. And if the fair import is that the correct test was applied, then habeas relief does not lie.
05-785 +++$+++ 46276 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right. My hypothetical, and we'll debate later whether it is this case or not, is let's say that the state court wrongly articulates Supreme Court law. But under the correct articulation, it leads to the same result. What happens in that case under AEDPA?
05-785 +++$+++ 46277 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that the habeas relief should not lie. Now, I have seen circuit courts treat it different ways. Some courts will decline to give deference and review it de novo, but I don't think Congress intended, in enacting AEDPA, the A-E-D-P-A, that a state habeas -- a state conviction should be overturned simply because of an accident in a statement or formulation of the test, but the conviction is otherwise constitutionally balanced --
05-785 +++$+++ 46278 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You are actually saying the answer to the Chief Justice's question is that you would then review it de novo. But on de novo review, you would sustain the conviction if it came to the right result.
05-785 +++$+++ 46279 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. I believe so. If I understood you correctly -- the question correctly, yes.
05-785 +++$+++ 46280 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You would not affirm -- you would not sustain the conviction relying on AEDPA. You would say AEDPA authorizes review, but on review, we conclude the conviction was correct. That's what I understand the AEDPA to be.
05-785 +++$+++ 46281 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, with the caveat that we're assuming that the hypothetical is that the state court has misapplied, that the fair import has -- they have misapplied the holdings of this Court.
05-785 +++$+++ 46282 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Correct.
05-785 +++$+++ 46283 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It misarticulated them. I guess the question of application is -- I mean, I assumed they reached what we would regard as the correct result under the correct standard, they just articulated the wrong standard. Your answer, I take it, is that it would then be reviewed without AEDPA deference?
05-785 +++$+++ 46284 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. Then I misunderstood the question. The deference would still apply if you could look at the decision as a whole and see that the correct standard was applied. If they have erroneously stated the standard -- if the state court erroneously stated the standard, but you can look to the decision as a whole, and see that the correct standard was nevertheless applied, deference is still due.
05-785 +++$+++ 46285 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We're concerned here with the court of -- the role, if any, that a circuit court, that opinions of courts other than this Court have in determining whether law is clearly established. Do you exclude entirely from the province of what is proper for the Federal court to consider any court of appeals, Federal court of appeals decisions?
05-785 +++$+++ 46286 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, we do, Your Honor.
05-785 +++$+++ 46287 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that the only thing -- your argument is the only thing that is proper to look to are decisions of this Court, and that if you don't have a case on all fours, as we have no buttons case, then that's the end of it?
05-785 +++$+++ 46288 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. We -- our position is that a Federal habeas court may not look at all to state or circuit authority on the question of what is clearly established, only the holdings of this Court, and what appears on their face. If there's a general rule, such as here, the question moves to the reasonable application prong. And under that prong, because the rule is general, as this Court stated in Yarborough versus Alvarado, the more general the rule, the more leeway there is. Relief can still lie under certain circumstances, but it's -- it moves into a question of objective reasonableness of the state court's decision.
05-785 +++$+++ 46289 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose all of the -- suppose there are five circuits. They're the only ones that looked at the issue. And they all say, we think the general rule of the Supreme Court is as follows, isn't that entitled to some weight? You're not supposed to cite that when you go to the Sixth Circuit court or you go to the state court?
05-785 +++$+++ 46290 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If Your Honor is speaking only to the clearly established prong, my answer would be no. If a circuit court says Jackson v. Virginia is clearly established law on the sufficiency of the evidence, we have no dispute with that. But to redefine or shape this Court's holdings beyond the face of those holdings, our position is that cannot be done with state or circuit law. Circuit law and state law may be relevant to the question of reasonable application, but not on the first prong. If a Federal habeas court looks to circuit or state authority on the first prong of 2254(d)(1), the reasonableness becomes a foregone conclusion. The two -- the two sections of the statute collapse into what is essentially de novo review, as what happened here. Once, for instance, the habeas court here decided that its own circuit authority required -- or prohibited buttons, reasonableness was a foregone conclusion, even though it was addressed by the circuit. But in further response to your question, Your Honor, our position is that on the reasonable application prong, a Federal habeas court may look to state and circuit cases. They are of varying relevance, but they should look to state and Federal circuit cases equally, but not all those cases have the same relevance. We have -- there is a distinction between pre-AEDPA and post-AEDPA cases, and the distinction between whether those cases support or contradict the state court's opinion.
05-785 +++$+++ 46291 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So would there be any difference if this had been a post-AEDPA -- if the circuit precedent had been post-AEDPA.
05-785 +++$+++ 46292 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There would be a difference, Your Honor. The -- depending on the prong we're looking at, under -- our argument would still be the same under -- on the clearly established prong of 2254(d)(1), that even if Norris was a post-AEDPA case, that the circuit court could not look to Norris to define this Court's holdings. But Norris, if it were a post-AEDPA case would have more relevance on the reasonable application prong. There, stare decisis might come into play. It doesn't mean Norris is correct. It doesn't mean that the result reached by the circuit court of appeals in this case would be correct, but it would certainly be more relevant.
05-785 +++$+++ 46293 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can you tell us -- let's assume for a minute that this case were on direct review, that we don't have AEDPA. What is the standard that should control? Whether there is an impermissible -- an unacceptable risk that impermissible factors will be taken into account by the jury? Is that the test?
05-785 +++$+++ 46294 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is a test, the test, one of the formulations of it. I don't believe it materially differs from -- our position is it doesn't materially differ from the general due process, fair trial standard that applies in all cases.
05-785 +++$+++ 46295 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but you should make it more specific for us. You say general due process. How does that work in this case? I want to know whether or not I can order or must order someone to remove a sign, a button, a piece of clothing. What's the test that I use?
05-785 +++$+++ 46296 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it is an assessment of all the circumstances, that if you're a trial judge --
05-785 +++$+++ 46297 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That -- unless you want to go on, that doesn't help me. We just tell all the judges in the country to assess all the circumstances, we say no more?
05-785 +++$+++ 46298 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. Let's take the impermissible factor test. The state court judge should look at the circumstances before him and determine whether he believes that there is an unacceptable risk of impermissible factors coming into play. Whether the practice at issue, whether it be buttons or ribbons or what have you, is so likely to prejudice this defendant or violate or infringe on his fundamental rights that we need to order them removed. Not just as a matter of supervisory power, but as a constitutional requirement. So it is a spectrum test, Your Honor. And it's essentially a totality test of the circumstances of the buttons, let's say, and there can't be a bright line rule. The circumstances --
05-785 +++$+++ 46299 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why couldn't there be here? I mean, at some point, at some point, seeing every judge in this case say this is a thoroughly -- no, let me not exaggerate. But they say wearing buttons is a bad idea. For obvious reasons. Now, at some point, if enough judges say that, each time they say, well, it is a bad idea, but we can't say in this case that it was so prejudicial, there's that inherent risk that it's unconstitutional. But if some point, if people begin enough is enough to say, this is quite a bad idea to have buttons being worn in a courtroom, which is not a place for demonstration, does it not become pretty clear, irrespective of exactly what opinions say what, that this is just very unfair and unconstitutional?
05-785 +++$+++ 46300 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, my answer is no. As a supervisory matter, a state court can do whatever it wishes. Under the state constitution, state statutes, state rules of court, can do many things under its supervisory power or even state constitutional power. That is different altogether, however, from saying that all buttons violate the Constitution, which is different in turn from saying all buttons require habeas relief.
05-785 +++$+++ 46301 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about banners? What would you do with banners?
05-785 +++$+++ 46302 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I beg your pardon?
05-785 +++$+++ 46303 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What would you do with banners? Would it make sense to say all banners are banned from the courtroom? I thought you would think that would make a lot of sense.
05-785 +++$+++ 46304 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Banners?
05-785 +++$+++ 46305 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. Signs, placards.
05-785 +++$+++ 46306 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I haven't seen a case involving banners. I imagine that --
05-785 +++$+++ 46307 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think I know why. Because it affects the atmospherics of the trial.
05-785 +++$+++ 46308 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And likewise, we don't see all the button cases where the buttons have been precluded.
05-785 +++$+++ 46309 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you also don't allow people to come into most courtrooms in tank shirts, and we don't allow people to, you know, to wear beany hats. Everything that is inappropriate for a courtroom is not necessarily inappropriate because it would prejudice the trial; isn't that right?
05-785 +++$+++ 46310 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor.
05-785 +++$+++ 46311 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Maybe that's why we don't allow banners, because a courtroom is not the place for banners.
05-785 +++$+++ 46312 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. Decorum should not be confused with --
05-785 +++$+++ 46313 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Absolutely right. Suppose you think in this Federal court, which we are, that banners, posters, and buttons are a thoroughly bad idea. Now, why? Not just because of decorum. But because they introduce an extraneous factor into the judgment of the jury. And suppose I also think -- I'm not saying I do, I'm trying this out -- but it is pretty hard to draw lines among buttons. It is pretty hard to draw lines among banners. And the only way to guarantee fair trials in whole -- is to have a wholesale rule on this. No buttons, no banners, no petitions, no posters. How would you explain -- you just say the law just doesn't permit that.
05-785 +++$+++ 46314 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor --
05-785 +++$+++ 46315 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What do you want to say about that? Because that is a concern I have.
05-785 +++$+++ 46316 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I understand, Your Honor. And this Court obviously has the power to enact a prophylactic rule that -- but a prophylactic rule covers many unconstitutional as well as constitutional practices. And that a prophylactic rule requires -- the prophylactic rule that might be enacted would require preclusion of buttons does not mean that all the buttons that might come up are necessarily prejudicial.
05-785 +++$+++ 46317 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm not so sure. You think that we could just say we're going to exercise our best judgment, not necessarily amend the Constitution, just because it is a good idea, banners and buttons are hereby banned forever? Do we have the authority to just say that?
05-785 +++$+++ 46318 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, in this case, this case has -- this Court granted certiorari on the question of application of the AEDPA. So we are not asking -- certainly not asking for that.
05-785 +++$+++ 46319 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We're exploring initially what the rule ought to be.
05-785 +++$+++ 46320 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask this question? Supposing we all thought that this practice in this particular case deprived the defendant of a fair trial, but we also agreed with you that AEDPA prevents us from announcing such a judgment. What if we wrote an opinion saying it is perfectly clear there was a constitutional violation here, but Congress has taken away our power to reverse it. Then a year from now, the same case arises. Could we follow -- could the district court follow our dicta or could it -- would it be constrained to say we don't know what the Supreme Court might do?
05-785 +++$+++ 46321 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It could not follow this Court's dicta under this Court's statement in Williams v. Taylor that only the holdings, not the dicta, of this Court establish clearly -- clearly establish Supreme Court authority. I believe that the rule, if there's going to be one, should be the rule that was applied here. A general rule of fundamental fairness considering the totality of the circumstances before the trial court. I think the rule works. And it worked in this case.
05-785 +++$+++ 46322 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You don't need to establish that rule, do you? You just need to establish that what the Supreme Court determined was not an unreasonable application of this Court's law?
05-785 +++$+++ 46323 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Mr. Chief Justice. We're not asking for a new rule applicable to buttons. The reason we're here is because of the circuit court's method in addressing this case and granting habeas relief.
05-785 +++$+++ 46324 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What if the button had said -- the three buttons had said "Hang Musladin," would you say that there was not -- there was not sufficiently clear law from this Court to find that practice unconstitutional under Justice Marshall's formulation.
05-785 +++$+++ 46325 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it wouldn't change the clearly established prong. We still have the general rule, but I think that your instance is one that all judges would agree is so egregious that it falls within the ambit of that, and would require habeas relief.
05-785 +++$+++ 46326 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Falls within the ambit of what? Of a mob-dominated atmosphere or -- your answer to Justice Souter was AEDPA would -- was that this would require reversal even under AEDPA; is that your answer?
05-785 +++$+++ 46327 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I can concede that, yes, Your Honor, that --
05-785 +++$+++ 46328 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We both want to know why you say that.
05-785 +++$+++ 46329 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the question is objective reasonableness. And we don't dispute that some circumstances may present such a situation that no one, no judge is going to disagree that the situation, at the state court, if it denied the relief on the three buttons you posed was unreasonable.
05-785 +++$+++ 46330 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, but what are the -- getting into the formulation, what are the impermissible factors as to which a risk is raised by wearing the "Hang Musladin" button? What are those factors?
05-785 +++$+++ 46331 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The "Hang Musladin" button, the impermissible factor first is the explicit message. "Hang Musladin." "Convict him." It's urging the jury to convict him and that --
05-785 +++$+++ 46332 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what's wrong with that? The prosecutor is going to get up and urge the jury to convict him. What is wrong with it on the button? What risk does the button raise that the prosecutor's argument does not? That's what we're getting at.
05-785 +++$+++ 46333 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is an outside influence, Your Honor. It is an influence coming from --
05-785 +++$+++ 46334 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How different is it from the victim's family sitting in the second row behind the prosecution every day of the trial? And I mean, I'm -- the hypothetical correctly focuses on the question, at least for me, of whether or not you can have specific applications of general rules that are clearly established. I'm just not sure your agreement with it is advisable because it seems to me that simply having -- how many people have to wear these buttons? One person shows up with a "Hang Musladin" button, does that mean it is a mob-dominated trial?
05-785 +++$+++ 46335 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. My -- what I -- the point I meant to make was that we're not urging that relief can never lie because there's a general rule of application.
05-785 +++$+++ 46336 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ All right.
05-785 +++$+++ 46337 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's a spectrum. And I would -- I'm not conceding that the example necessarily requires habeas relief, because there are a whole host of circumstances that we wouldn't know about it, for instance, whether it was ever seen, in cases that people don't see the button, or what have you.
05-785 +++$+++ 46338 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about simply the facts that we have in this case, which I thought I was doing, maybe I wasn't clear about it, but the button is different. Instead of putting a picture of the victim, it's got the statement, "Hang Musladin." It's worn every day by three members of his family who sit behind the prosecution table within the sight of the jury. Assume those facts. Would habeas relief be required under the general rule?
05-785 +++$+++ 46339 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think it would be required. I think it would be reasonable to say that habeas relief must lie. There are many -- there are much fewer inferences that could be drawn there.
05-785 +++$+++ 46340 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that a way of saying that it's required? Should -- look, should a court grant habeas relief on my facts?
05-785 +++$+++ 46341 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not necessarily, Your Honor. It -- there are --
05-785 +++$+++ 46342 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why?
05-785 +++$+++ 46343 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, as Mr. Chief Justice pointed out, three family members of the victim sitting in the front row, buttons or not, the buttons don't add -- add little, if anything, to the three victim's family members sitting there grieving through a trial. They add very little, for instance, in this case --
05-785 +++$+++ 46344 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't know whether they are grieving or not, but I certainly know the sentiment that they are trying to convey to the jury if they wear a button that says "Hang Musladin."
05-785 +++$+++ 46345 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I submit that the sentiment is obvious to the jury.
05-785 +++$+++ 46346 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Pardon?
05-785 +++$+++ 46347 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would submit that that sentiment is obvious to the jury, that a juror --
05-785 +++$+++ 46348 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They may not want him hung. They may not believe in the death penalty.
05-785 +++$+++ 46349 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I wish you hadn't said that. Because I had thought that one of the things that made this case leaning in your direction is the fact that merely having a picture of their loved one on the button doesn't convey the message, you know, hang the defendant, or even convict the defendant. It just conveys, at most, to the jury, you know, this is -- we have been deprived of someone we love, you should take this matter very seriously and consider the case carefully. It is an important matter to us. And therefore, you ought to deliberate carefully. I don't know that it means anything more than that.
05-785 +++$+++ 46350 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I did not intend at all to suggest that that was a message from those buttons. What I meant to say was the buttons add very little. Because I think a juror understands what a --
05-785 +++$+++ 46351 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You said, you know, convict what's -- or hang What's His Name. That's quite -- you're equating that with the buttons in this case. And I don't think the buttons in this case say hang so and so, or even convict so and so. They just say we have been deprived of a loved one. This is a terrible matter. Please, jury, consider this case carefully. That's all it necessarily says.
05-785 +++$+++ 46352 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's, if any message, what the buttons conveyed in this case. I was only speaking to the difference between the buttons that Justice Souter posed as putting forth a more explicit message.
05-785 +++$+++ 46353 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay, assuming that explicit message, could habeas relief be granted in my hypothetical case?
05-785 +++$+++ 46354 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not necessarily, Your Honor.
05-785 +++$+++ 46355 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why?
05-785 +++$+++ 46356 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because in your case, I don't think that that message necessarily -- I think it is reasonable for a state court to conclude that those buttons did not add much to, if anything, to the presence of --
05-785 +++$+++ 46357 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it reasonable for a state court to say that three family members sitting in a courtroom within sight of the jury for whatever number of days the trial ran, saying at the guilt stage, hang so and so, is exposing the jury to a proper influence, that it should, and may consider in deciding guilt or innocence?
05-785 +++$+++ 46358 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we could concede that for this case.
05-785 +++$+++ 46359 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. Why don't you concede that of course that would be exposing the jury to an improper influence, in the "Hang Musladin" case.
05-785 +++$+++ 46360 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought some states require that the relatives of the victim be allowed to make their case to the jury for harsh penalty. I don't know that that's necessarily inappropriate to know that the --
05-785 +++$+++ 46361 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's at sentencing after conviction.
05-785 +++$+++ 46362 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, yes.
05-785 +++$+++ 46363 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ My hypo is at the guilt stage, not the sentencing stage.
05-785 +++$+++ 46364 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At the guilt stage, that's right. California statutes do require that victims' families be able to make a statement at sentencing. They also require that the victim's family, if the victim is not alive, be present at the guilt phase of the trial, during the guilt phase of the trial.
05-785 +++$+++ 46365 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But at the guilt stage, is there any, is there any question in your mind that allowing the family members to display this message to a jury throughout the trial at the guilt stage is raising a risk, an unacceptable risk, that the jury will consider improper influences in reaching its verdict? Is there any question?
05-785 +++$+++ 46366 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, your -- your buttons might raise an impermissible risk.
05-785 +++$+++ 46367 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's my hypothetical. My buttons, "Hang Musladin," is there any question about the risk of improper influence on my hypothetical? Not this case, my hypothetical.
05-785 +++$+++ 46368 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They do, but it might still be reasonable for a state court to conclude otherwise. And it was certainly reasonable for the state court here to conclude that three simple buttons bearing only a photo did not convey any message of blame, guilt, anything other than grief of this family. If I may reserve the rest of my time for rebuttal.
05-785 +++$+++ 46369 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Ott.
05-785 +++$+++ 46370 +++$+++ TRUE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
05-785 +++$+++ 46371 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Fermino?
05-785 +++$+++ 46373 +++$+++ FALSE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, may it please the Court: I want to direct this Court's attention to the state court opinion which appears at 55A to 78A of the appendix to the petition for writ of certiorari in this case. I want Your Honors to take a look at that opinion. It is 25 pages in length, but the portion of the opinion dealing with the buttons issue is two pages in length. Of those two pages, all but a few sentences deal directly with the Norris case. I believe it is at roughly page 72A in their -- 73A of the appendix. All but three sentences deal with the Norris case. The Attorney General has said in its briefing that the court below teased out the particular reference to the buttons, that it carefully parsed the opinion, that it gave a tendentious analysis. This is the description of the Attorney General. Nothing could be further from accuracy. These two pages discuss Norris head on. It is the elephant in the room, if you will. The court below could not have -- it would have been impossible for the court below to write this opinion without addressing the Norris case head on.
05-785 +++$+++ 46374 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought the key sentence in this is he says the simple photograph of Tom Studer on a button which -- I don't know what the size is. Nobody has told them what the button is about. Nobody has put for the judge a picture of it. Nobody showed him what the button is. So he says a simple photograph of Tom Studer was unlikely to have been taken as anything other than the normal grief occasioned by the loss of a family member. Period. Now, what else is there to say? That's the court's conclusion. And it is pretty hard for me -- I looked for the button. I couldn't even find the button in the record. I didn't even know what this looks like. It is a button, somebody later must have said two inches to four inches. I don't know who said that. I don't know how the judge could have known that. The button isn't in the record. So why isn't it just a normal sign of grief unlikely to influence anybody? That's what they say.
05-785 +++$+++ 46375 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, I think that the --
05-785 +++$+++ 46376 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In this case.
05-785 +++$+++ 46377 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. And I think that the court -- it is correct that the record before the state court of appeals was inadequate to address -- to answer the question. But I think what -- where the court erred is in adding and grafting on an additional element. It goes beyond that sentence that, Justice Breyer, you focused on. I think it is that the -- it is the element of branding. It's that this wearing of the buttons in a sense branded the defendant in the eyes of the jurors.
05-785 +++$+++ 46378 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It goes on frequently in an opinion. I have been known to do that myself. And I say this court over here says it's a da-da-da, and I say "sure isn't that." Well, what is it?
05-785 +++$+++ 46379 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that language came from one of our opinions, didn't it? The branding language?
05-785 +++$+++ 46380 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That was quoting Holbrook and Flynn.
05-785 +++$+++ 46381 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Justice Ginsburg. That's right.
05-785 +++$+++ 46382 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you can't fault the court for just saying it isn't that. Mr. Ott says it isn't that.
05-785 +++$+++ 46383 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. But I believe that it is not part of the test. It was that the branding language, as in Justice Brennan's -- in Justice Brennan's dissent was not part of the text articulated by --
05-785 +++$+++ 46384 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Repeated later in opinions for the majority, I think.
05-785 +++$+++ 46385 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
05-785 +++$+++ 46386 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In later cases, so I mean --
05-785 +++$+++ 46387 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
05-785 +++$+++ 46388 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Don't just put it in Brennan's dissent.
05-785 +++$+++ 46389 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't understand your point about the state court focusing on Norris. The question under AEDPA is still whether or not it is an unreasonable application of Supreme Court law.
05-785 +++$+++ 46390 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in this instance, much has been said about the opinion and the carefully written opinion of the state court. But the portion of the opinion that focuses on this issue is, as I said, roughly two pages in length and deals almost entirely with Norris. Norris was the contrast case for the court of appeals.
05-785 +++$+++ 46391 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in here it -- you agree that the California court has as much authority to say what Federal law is as the Ninth Circuit, right? They are on a par. Ninth Circuit decisions in no way binds the Supreme Court of California. Isn't that so?
05-785 +++$+++ 46392 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct.
05-785 +++$+++ 46393 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So that this state court of appeals chose to be respectful to the Ninth Circuit to consider what it had said, doesn't sound to me like a very strong argument.
05-785 +++$+++ 46394 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Ginsburg, I would respectfully disagree. I think that the -- were this discussion of Norris to be a much longer discussion -- or excuse me, part of a much longer discussion, that might be true. But its entire focus was Norris. It used Norris by way of negative explication to show that the facts before it didn't fall within the rule as derived from Williams and Flynn. And I think that goes beyond respect to the Ninth Circuit. I think it took the case, it grappled with it, it decided that it was different than Norris. And I think that there would have been no way for the court below to have looked at the facts of this case without addressing Norris --
05-785 +++$+++ 46395 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what was the -- what in your opinion -- this is why -- as you can see, I'm concerned about buttons. I think they're probably a problem. I think all judges are concerned about them. But then I think about this particular case. And I look at that single sentence: "It was unlikely to be taken as a sign of anything other than normal grief." I mean, suppose this had been a different case. Suppose the defense in this case was the defendant Smith didn't pull the trigger. It was an unknown person called Jones. Then if I were on the jury, I would look out, see the buttons, and I'd say, hmmm, the family thinks it was Smith. Otherwise they wouldn't be here with those buttons. I could think that. But this isn't that case. This is a case where everyone thinks your client pulled the trigger. The only question is whether the family's son came at him with a machete. So when I look at the buttons, I'd think sure, they don't think the son came at him with -- I mean, they don't think that. He's their son. What would you expect them to think? So that's why I thought that they are saying that sentence, in this case. In this case, it would be taken as sign of grief and nothing more.
05-785 +++$+++ 46396 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Breyer, that is certainly a plausible reading of the state court opinion. However, I think you've also identified one -- the problem with this. It is the risk, not the reality. And that's why we have to look beyond the facts of this case and look to the rule as derived from the Williams and Flynn case, as I think the court below properly did. And in doing so, in applying it to this case, I think you have to do away with this kind of courtroom behavior. It is simply not acceptable. It is not acceptable to wear --
05-785 +++$+++ 46397 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ To wear any buttons? It says, "Fair Trial."
05-785 +++$+++ 46398 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Any courtroom practice that causes an impermissible risk that the jury's -- that the jury would come to a conclusion based on a factor not introduced at trial is entirely prejudicial --
05-785 +++$+++ 46399 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, most -- I don't think -- a typical jury will understand that the victim is going to have a family, and they're going to be sorry that he's dead, and they might be there at his trial. And they may not like the person accused of murdering their son. That is not -- that is sort of like in every case. That's not -- the buttons don't seem to add much to what the jury will derive from seeing the family seated behind the prosecution bench.
05-785 +++$+++ 46400 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree with Mr. Chief Justice up unto the point of it's not different wearing the buttons. I think that you add the buttons, and you are creating -- you are doing essentially what the rule derived from both Williams and Flynn teaches us is wrong.
05-785 +++$+++ 46401 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in Williams and Flynn and all of the cases that we have had, whatever way they went, it was always the government requiring a defendant to do something, wear prison clothes, appear in court with shackles. And in the case that went for the government, the extra officers in the courtroom. We haven't had a case, have we, where it is spectator conduct as opposed to government conduct that's being attacked?
05-785 +++$+++ 46402 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct, Justice Ginsburg. There isn't a case that is, that -- where the state action element, if you will, is not present. However, I would posit that in this case, where you have a judge, a trial judge who denies a lawyer's motion, that you have implicit in that state action, that the court has endorsed the practice of --
05-785 +++$+++ 46403 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That certainly goes beyond where our precedent leaves off. That is, we are dealing with direct impositions by government in a way that poses an unacceptable risk of prejudice to the defendant.
05-785 +++$+++ 46404 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
05-785 +++$+++ 46405 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. And you're having the judge say that you can't wear certain signs, you can't make certain demonstrations. If the family were there and they -- and one of the members of the family was sobbing, with tears coming out of her eyes, I -- that --
05-785 +++$+++ 46406 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice --
05-785 +++$+++ 46407 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- much, it has much more impact than a button.
05-785 +++$+++ 46408 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- and it might. But that kind of behavior by a courtroom spectator can be controlled by a trial judge if -- when it occurs. If it is spontaneous, it can be controlled. A rule that spectators aren't allowed to emote would be implausible, or would be impractical. We are not talking here today about controlling the emotions of spectators. We are talking about an impermissible factor like a message or the risk of a message.
05-785 +++$+++ 46409 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, but there is a First Amendment problem when you're dealing with activities of people other than the prosecution, people other than the state, who is bringing this prosecution.
05-785 +++$+++ 46410 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is no question that there is a First Amendment issue here.
05-785 +++$+++ 46411 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So that makes it a different case. It makes it very hard to say, well, the Supreme Court's already decided this matter.
05-785 +++$+++ 46412 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in the First Amendment context, though, there's a balancing test that needs to be employed, and it --
05-785 +++$+++ 46413 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Sure, it may come out the way -- it may come out the way you want, but it's hard to say that the Supreme Court, any Supreme Court case bears upon it, when we haven't had a case that involves weighing the First Amendment right of the people in the courtroom to wear buttons or cry or --
05-785 +++$+++ 46414 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that Mr. Cohen in New Hampshire wearing his sign regarding the draft --
05-785 +++$+++ 46415 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but that cuts against you.
05-785 +++$+++ 46416 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand that, but --
05-785 +++$+++ 46417 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This reason -- suppose, hypothetically, I would think -- well, the rule should be no buttons. No buttons, no signs, no banners. A courtroom is a place of fair trial, not a place for a demonstration of any kind. Now, if I were to think that, and I also were to think it's just too difficult to figure out case by case whether there is or is not an improper influence, suppose I thought both of those things. Now, you've heard, quite rightly, the other side says: One, you're supposed to decide whether this was clear in the law. Two, if you're worried about the future, you can't lay down a rule that's clear in the law either because of A, AEDPA, and B, the case that was cited, which said it's holdings that count, not dicta. All right. You write for me the words I'm supposed to put on paper to achieve your position.
05-785 +++$+++ 46418 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, I think that the rule derived from the Williams and Flynn cases is that courtroom -- courtroom behavior that creates an unacceptable risk that impermissible factors have -- or have caused a jury's verdict to be based not solely on evidence introduced at trial is inherently prejudicial. And unless it advances some important state interest, some compelling state interest like the concern that I believe Justice Ginsburg raised about the forcing a defendant to appear in prison garb or the shackling cases, that rule I think allows the opinion in this case of the court below to not violate the prescriptions of the AEDPA. I think that's clear. I think what the court below did was essentially apply the rule that I just discussed. And I think --
05-785 +++$+++ 46419 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So what about -- what if the issue was mourning? The trial is being held and the families appear and they're all in black because they're still in mourning. Does that violate this clearly established rule?
05-785 +++$+++ 46420 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think you're getting -- Mr. Chief Justice, I think the hypothetical gets closer to it as well. I think a defendant's -- excuse me, a victim's family wearing, appearing in court every day wearing black gets closer to the kind of message import -- again, the risk, not the reality -- that this case is -- that the court below was concerned with.
05-785 +++$+++ 46421 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, my question is under AEDPA, if the state court said, you know, I'm not going to keep the family out even in mourning, that would violate the clearly established rule that you've just articulated?
05-785 +++$+++ 46422 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-785 +++$+++ 46423 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even if it didn't, though, I suppose you could draw a line between people who were doing what they naturally do, and some people do wear mourning, and some people will come into a courtroom and be reminded of the person who died and sob. But in this case, they're going out of their way to do something that people in mourning do not normally do.
05-785 +++$+++ 46424 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
05-785 +++$+++ 46425 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so you've got -- I think you've got a stronger argument. The problem that I have in this case is that, number one, I view the wearing of the buttons, as I just described it, as something that is abnormal and something that is intended to presumably get the jury's attention. I don't know why otherwise they would be doing it. And from whatever source, we do know that the button was at least two inches wide and maybe larger. So it's reasonable to suppose that the jury saw it and understood perfectly that these were people who were raising, in effect, an issue of sympathy. I can understand that, and under the general rule out of Williams and Flynn, it seems to me there's a pretty darn good argument for saying, yes, an unacceptable risk has been raised of emotionalism in the jury's deliberations as opposed to dispassionate consideration of courtroom evidence. What, however, do I make of the fact that not one single court has ever reached that conclusion and -- you know, as a constitutional matter? Am I in the position of sort of being Jim, and they're all out of step with Jim? I'm raising a question about my own judgment in relation to the fact that no other court seems to have come to that conclusion. What do you think I should make of that?
05-785 +++$+++ 46426 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it is a factor to consider in the Court's analysis. However, I think the facts of this case are unique precisely because this typically doesn't -- we don't get this far because most trial judges don't allow this kind of conduct.
05-785 +++$+++ 46427 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there have been -- haven't there been court decisions that have held that buttons didn't compromise a fair trial right?
05-785 +++$+++ 46428 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
05-785 +++$+++ 46429 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So in assessing the reasonableness of the California Supreme Court's decision, how could we say Federal law was clearly established when other courts considering our precedent have gone the other way?
05-785 +++$+++ 46430 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because I think that under -- I think that this Court looking at the "contrary to" prong of the analysis would -- can come to a conclusion that the state court's decision wasn't -- I'm getting ahead of myself. I think the Court can properly, in looking at it from a "contrary to" analysis, come to the conclusion that, even with that body of case law, that the state court got it wrong, that it misapplied the clearly established law of this Court.
05-785 +++$+++ 46431 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't want to put your -- hang your hat on the "contrary to" prong, though, do you? Your argument, I thought, was an unreasonable application argument.
05-785 +++$+++ 46432 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it's both, Mr. Chief Justice. I think it's both. I think -- I don't need to hang my hat on the "contrary to" because I think under either prong --
05-785 +++$+++ 46433 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but, as Justice Ginsburg pointed out, we've never even had a case involving spectators. So it's not contrary to clearly established law. We have cases stating the general principle on which it relies, so maybe it's an unreasonable application. But "contrary to" seems an awful stretch.
05-785 +++$+++ 46434 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I wouldn't go -- Mr. Chief Justice, I would not go as far as "an awful stretch," but I would think that we, under the unreasonable application prong, we certainly win. I think that there is also an argument under the "contrary to."
05-785 +++$+++ 46435 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The record is confusing, at least as I read it -- please correct me if I'm wrong -- on the showing of how many days these buttons were worn. A, is it clear from the record how many days the buttons were worn?
05-785 +++$+++ 46436 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is not. It is not clear at all from the record how many days.
05-785 +++$+++ 46437 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it may have been for just one day of the trial?
05-785 +++$+++ 46438 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It may have been. But according to the declarations that were submitted in the petition for collateral review, those are petitions -- those are declarations of the trial counsel and of respondent's mother -- it is that they were worn on multiple days by several members of the family, and that the buttons were anywhere from two to four inches in diameter. And that's in the record.
05-785 +++$+++ 46439 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where does it say that?
05-785 +++$+++ 46440 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Those declarations appear --
05-785 +++$+++ 46441 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ These are in the joint appendix.
05-785 +++$+++ 46442 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ These were declarations filed with the United States district court in habeas?
05-785 +++$+++ 46443 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They were filed actually as part of the state collateral review proceedings. They were filed with the habeas. And it appears that they are at the JA 6 and 8.
05-785 +++$+++ 46444 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where does it say in there that the buttons were worn every day?
05-785 +++$+++ 46445 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If I did -- I'm sorry, that question --
05-785 +++$+++ 46446 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It says that the family members were there every day, or for many days. It doesn't say they wore the buttons every day, unless I'm missing --
05-785 +++$+++ 46447 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Alito, if I said that, I misspoke. I was trying to say that the record is not clear as to the frequency.
05-785 +++$+++ 46448 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There was a time when the trial judge said stop. Was there not? He initially denied the motion.
05-785 +++$+++ 46449 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
05-785 +++$+++ 46450 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I thought that there was a time in the course of the trial when he told the family members to stop wearing the buttons.
05-785 +++$+++ 46451 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe so, Justice Ginsburg. I think that they were never admonished not to wear them, but that the original ruling of the trial judge stood as far as the wearing of the buttons was concerned.
05-785 +++$+++ 46452 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In his opinion on denial of rehearing, Judge Kleinfeld on the Ninth Circuit made the point that at criminal trials -- and I suppose at other trials -- it is an accepted feature of the proceeding that there are going to be spectators who identify with one or the other party. And there may be relatives of the defendant in a criminal case. There may be relatives of the victims. And it's apparent from their behavior what they think about the case and which side should win. And that's sort of a baseline that has to be accepted in judging, not whether wearing buttons is good as a -- whether we think it would be good if we were announcing a court rule, but whether there's a violation of due process. Do you accept that?
05-785 +++$+++ 46453 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Alito, I do, as far as it goes, accept that as a baseline. I think Judge Bea in a separate dissent likened it to a family wedding, that we all know who is here for which party. That we have no quarrel with.
05-785 +++$+++ 46454 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So what is it about these particular buttons that's reflected in the record that shows that it goes significantly beyond what would be inferred just from that rather common feature of trials?
05-785 +++$+++ 46455 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think in looking at the rule again derived from Williams and Flynn, we don't have to go there. It's the risk, not the reality. I don't know what could be inferred, and we don't know what was in the jurors' minds as they saw those buttons. But the point is that it could affect the outcome. It is an impermissible factor that causes the possibility that the jurors' verdict is based on something other than the evidence.
05-785 +++$+++ 46456 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is there a greater risk? Why do the buttons convey -- involve a greater risk than the kind of behavior that Judge Kleinfeld was referring to?
05-785 +++$+++ 46457 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because you can imagine as a juror -- jurors are very attentive during trials -- that they look out into the audience and see in the jury box -- I mean, out in the audience, a group of people wearing buttons. What are those buttons? What's on there? What's the point of -- there's a degree of scrutiny that's naturally going to occur by an attentive juror. That's really the issue.
05-785 +++$+++ 46458 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's assume -- risk of what? That's what I'm puzzled by. Let's assume that the buttons were big enough that they could recognize that the buttons were the face of the deceased for whose murder the trial was about. Let's assume all that. What risk is that? You know, during sentencing I can understand, oh, he caused so much grief to so many people, once we found him guilty, we should sock him with a stiff sentence. But during the guilt trial? I mean, I see, gee, the victim's family loved him a lot. This guy must be guilty. That doesn't follow at all. In the guilt phase, I don't see how that can have any effect on the jury.
05-785 +++$+++ 46459 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Scalia, I think it's a risk of a factor that is not subjected to adversarial testing. It is the possibility that it could have an impact.
05-785 +++$+++ 46460 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't see the possibility. You tell me that --
05-785 +++$+++ 46461 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Here you have --
05-785 +++$+++ 46462 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there a real possibility that a jury is going to say, since this man's -- this victim's family loved him so much, this guy must be guilty?
05-785 +++$+++ 46463 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that's only one possible message of this button. And again, that's where I'm contrasting the risk versus the reality. It's that it could be any message that's sent.
05-785 +++$+++ 46464 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you have to depend on there being a message? Isn't it enough if there is an influence that is conveyed? I mean, what I thought the problem was, was that there was as a result of the obtrusive wearing of the button, that it created a risk simply of an emotional approach to the determination of guilt or innocence. The jurors are more likely to feel sorry for the family members sitting there a few feet away from them. Perhaps they may be more likely to feel sorry for the victim, but certainly for the family members. And it would be that improper influence of emotionalism as opposed to a particular message that is the problem here, isn't it?
05-785 +++$+++ 46465 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't disagree with that.
05-785 +++$+++ 46466 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you accept that?
05-785 +++$+++ 46467 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do accept that, and I don't need to rely on a message. I would agree with the argument that you've advanced.
05-785 +++$+++ 46468 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay.
05-785 +++$+++ 46469 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- I think it is important here to look at the fact that no party in this case -- that the state has not advanced that this is a practice that should be endorsed or adopted. It is clear that everyone involved has had a concern with the wearing of buttons or any other kind of introduction into the proceeding that would otherwise not be subject to meaningful adversarial testing, and I think that's the problem in this case. And I do believe if you look closely at the state court opinion in this case, you will see that the court below's opinion was correct, that they did not tease out of the opinion or parse or apply any kind of tendentious reading, when you look at exactly what the state court decided.
05-785 +++$+++ 46470 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's just because we haven't had a First Amendment case yet. I mean, we just have parties arguing in the context of the criminal trial for the defendant, for the state. Let's wait until the ACLU brings a case about people who want to wear buttons in court. Then you're going to have people arguing, people ought to be able to wear buttons, just as they can wear a shirt that says "Blip the Draft."
05-785 +++$+++ 46471 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But this Court, I think, could craft an opinion that addresses that concern without the need for simply awaiting that day.
05-785 +++$+++ 46472 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, I'm not sure you're right that nobody was concerned about -- everybody thought the factors were wrong. I don't think the trial judge did. The trial judge said he saw no possibility of prejudice.
05-785 +++$+++ 46473 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I misspoke. You're correct, Justice Stevens. The trial judge did reach that conclusion. If there are no other questions, I would --
05-785 +++$+++ 46474 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Fermino.
05-785 +++$+++ 46475 +++$+++ TRUE +++$+++ MR. FERMINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
05-785 +++$+++ 46476 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Ott, you have one minute remaining.
05-785 +++$+++ 46478 +++$+++ FALSE +++$+++ MR. OTT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. If the Court has no further questions, I would submit this matter.
05-785 +++$+++ 46479 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Ott. The case is submitted.
05-83 +++$+++ 46483 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first today in Washington v. Recuenco. Mr. Whisman.
05-83 +++$+++ 46485 +++$+++ FALSE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: When a judge, rather than a jury, decides a fact that increases the defendant's punishment above the applicable standard range, the Sixth Amendment's jury trial right is violated. This is true regardless of whether the fact is called an element or whether it is called a sentencing factor because elements and sentencing factors are functionally equivalent under the Sixth Amendment of the United States Constitution. It follows that the same harmless error rule that applies to missing or misdescribed elements should also apply to missing or misdescribed sentencing enhancements. In a series of Washington decisions, the Washington Supreme Court has held that harmless error analysis may never be conducted as to a missing or misdescribed sentencing enhancement simply because it is called a sentencing enhancement. This rule of absolute prohibition is inconsistent with this Court's jurisprudence and should be corrected. Before I go on, however, to explain the legal basis and the flaws in the legal reasoning of the Washington State Supreme Court, I would like to take a brief moment to address a few State law issues that have been raised by the Respondent's brief. The first is the question of whether or not at all in Washington we can, at present, seek deadly weapon enhancements or, more specifically, firearm enhancements. It was alleged in the Respondent's brief that we cannot, and I'd just point out to the Court that there is no authority in Washington for that proposition. And so asking this Court to simply affirm the -- the firearm enhancement that was originally imposed in this case does not constitute imposing a sentence that would any way be inconsistent with Washington law.
05-83 +++$+++ 46486 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ On -- on that point, I have -- I have one question. At page 3a of the petition appendix, the Washington Supreme Court's opinion is set forth, and in the course of that opinion, it says, to the contrary, when defense counsel argued the definition should have been submitted to the jury, the prosecutor explicitly stated that the method under which the State is alleging and the jury found assault was committed was by the use of a deadly weapon. And then he goes on to say, in the crime charged in the enhancement, the State alleged there is no element of a firearm. The element is assault with a deadly weapon. I don't -- this was at the sentencing proceeding, I take it?
05-83 +++$+++ 46487 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that's correct, Your Honor.
05-83 +++$+++ 46488 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, because I couldn't find it in the sentencing proceeding.
05-83 +++$+++ 46489 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the -- in a subsequent or nearly subsequent breath, the prosecutor then asked for the enhancement, the 36-month enhancement, that applies for firearms. I think what you're seeing there is that the prosecutor was responding to the -- to defense counsel's use of the term element. And in -- in the year 2000, before Apprendi, before Blakely, we never would have used that term as applied to a sentencing enhancement. We just didn't think of it that way. Now, we have since changed our thinking, obviously, after Apprendi. But I think if you -- on the -- on the overall point, if you look at defense counsel's comments beginning with the comments pretrial, where he notes that I can see no relevance to -- to the admission of a different gun. Then he comments, Ms. Recuenco was threatened with a 380 automatic with a clip. Regarding the charge in particular, counsel at JA, page 30 says, the allegation and the basis on which this case was tried was under a theory of firearm. At JA 37, counsel said, the firearm is an element of this offense as it has been pleaded and argued to the jury and evidently, perhaps, obviously proven to the jury. So --
05-83 +++$+++ 46490 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It does sound as if he thinks there was -- the prosecutor thought there was no error. A deadly weapon is a deadly weapon, and then --
05-83 +++$+++ 46491 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. And -- and I think, Your Honor, that stems from the -- from the way the statutes are structured. Beginning many, many years ago, in Washington we had what we called a deadly weapon enhancement. And so there was no distinction made between any kind of weapon. In 1995, the law changed. There was a distinction made as to firearms. The -- the penalty was increased as to firearms. And so beginning that time, there was a material distinction depending on the weapon that was used. But I think that --
05-83 +++$+++ 46492 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was deadly weapon still an enhancement at that point, or was deadly weapon part of the definition of a new crime?
05-83 +++$+++ 46493 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Deadly weapon was still called an enhancement, Your Honor, under the statute. And so the statute defined deadly weapon very generally, and then in the punishment section, the punishment provisions, which specifically were formerly under section 310 of the Sentencing Reform Act -- now it's been renumbered to be 533. Under that provision -- you have two provisions, one which provides the punishment for deadly -- for firearms, and under this -- for this case, that would be 3 years. And then as to the rest, it says if someone was armed with a deadly weapon other than a firearm, you have a lesser penalty. So as I say, I think that for a long time we have treated -- in Washington, we've treated all of these things as deadly weapons, but recognized that if it was a firearm, the penalty was greater than if it were something other than a firearm.
05-83 +++$+++ 46494 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought the deadly weapon -- the definition of deadly weapon -- that that could include a revolver or a pistol. You -- you seem to be describing now deadly weapon. That's one thing, and that excludes guns. And then firearm, a discrete category. But I thought that deadly weapon includes at least pistols and revolvers.
05-83 +++$+++ 46495 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ A firearm includes pistols and revolvers because a firearm is something -- anything from which a projectile is fired. So --
05-83 +++$+++ 46496 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But -- but didn't the deadly weapon -- definition of deadly weapon include firearms?
05-83 +++$+++ 46497 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's the way it was defined to the jury in this case. That's correct, Justice Ginsburg. It was -- it was -- the -- the jury instructions went to the jury to find deadly weapon as a firearm. And over and over, the court reiterated, especially in the instructions conference, that the -- there's no question but that the only weapon here is a firearm, and so they used the simplified version of the instructions.
05-83 +++$+++ 46498 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wasn't --
05-83 +++$+++ 46499 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But with a 1 -- 1-year enhancement or -- I thought that that could apply in a case where the deadly weapon was a gun.
05-83 +++$+++ 46500 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Our -- our position, Your Honor, is that it cannot, that if -- you either have a firearm or you have no enhancement whatsoever. If -- the only way that a -- that a gun could be a -- it's -- it's because of the language, other than a firearm. So, in other words, you have either a firearm and a 3-year enhancement, or you have, as I say, no -- no weapon enhancement at all. So, in other words --
05-83 +++$+++ 46501 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, would it be either proper or required by the Washington trial court to tell the jury, ladies and gentlemen of the jury, the charge is assault? There is also the possibility of a sentence enhancement. It's a 1-year enhancement if it's a deadly weapon. It's a 3-year enhancement if it's a firearm and a pistol is a firearm. Would the judge err if he did that? Or another way of putting the same question, would it be proper for the judge to leave out the 1-year deadly weapon instruction and just instruct you can -- you must determine whether it's an assault and you must determine whether there's a 3-year enhancement for the use of a firearm?
05-83 +++$+++ 46502 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We believe that's exactly what the court did in this case, Your Honor, by -- by instructing the jury that deadly weapon is firearm. In Washington, we never tell the jury --
05-83 +++$+++ 46503 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, no. My hypothetical is he says it's a 3-year enhancement if the deadly weapon is a firearm. That's -- what I'm asking is, in effect, under Washington law, is it error if the judge allows the definition of deadly weapon also to go to the jury so it can find a lesser included offense.
05-83 +++$+++ 46504 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there -- there are two parts to the answer. Let me answer that one first. There -- our position is there is no lesser included offense of a firearm that's still a deadly weapon. And if you look at State v. Olney, O-l-n-e-y, that was one of the cases reversed in the Recuenco case, you'll see that -- that they explain why that's the case. In other words, it's either a firearm or there's no enhancement whatsoever. The -- the other part of the question I wanted to just clarify is that in Washington, we would not be telling the jury the length of time that -- that the defendant would face --
05-83 +++$+++ 46505 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, then you're saying the instruction here was proper.
05-83 +++$+++ 46506 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm saying that the instructions that went to the jury, correct, were -- were proper. What was improper in this case is that the special verdict form did not sufficiently or specifically enough preserve the jury's verdict so that, in other words, when the jury passed on this case and returned a verdict form that said deadly weapon, that did not expressly encompass the firearm. And so -- and that was -- that was the -- the mistake that was made in this case. We should have submitted a verdict form to the jury that would -- that would let a jury expressly describe what the verdict was.
05-83 +++$+++ 46507 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Could you -- could you clarify one thing for me? I just want to be sure I have it in mind correctly. Is it correct that the firearm has to be an operable firearm?
05-83 +++$+++ 46508 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That portion of the Washington law, Your Honor, isn't -- isn't crystal clear, but what I can say is that that's not in this case because trial counsel at -- at trial in more than one occasion specifically said it was irrelevant to this case. What we have to prove is that the firearm was a real gun, and --
05-83 +++$+++ 46509 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But is -- just again, I'm not trying to find out the answer to what happened here, but just as a matter of what the law provides. Is it conceivable that a -- a gun which was not operable could nevertheless be a deadly weapon because it can be used as a club?
05-83 +++$+++ 46510 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In that circumstance, yes, Your Honor.
05-83 +++$+++ 46511 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It could be.
05-83 +++$+++ 46512 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But -- but obviously, as counsel -- on page JA 31 and at JA 38, counsel very specifically said the State tries to say that the nonworking firearm would also be the basis for this offense, and certainly it can be. And then at -- at page 38, they say, obviously, the question of whether it actually worked or not would be irrelevant under the law. So the -- strictly speaking, the question of operability wasn't before the jury. We did have to prove that it was real. And, of course, there was never any dispute about that. The defendant's -- by the defendant's own testimony, for example, in the -- in the transcript at page 677 -- that would be volume 8, on 1/24/2000, page 677 -- the defendant spoke at some length about the fact that he was worried about his children getting a hold of this gun. There were significant safety concerns. At page 680, he talked about how he locks it up all the time.
05-83 +++$+++ 46513 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would you explain again why it was irrelevant whether the gun was operable or not?
05-83 +++$+++ 46514 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Operability, Your Honor, is -- is -- there were a series of cases that -- that arose in Washington having to do with -- with a gun that was basically a real gun, but that there was something technically wrong with it. And those series of cases discussed how soon it could be rendered operable to make it still constitute a real gun. But I think that's really kind of an esoteric area of the law.
05-83 +++$+++ 46515 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But to be a real gun, it has to be operable.
05-83 +++$+++ 46516 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's what the -- what the cases have said is that it only has to be ready -- could be made ready to -- to fire in a short amount of time, yes. As I say, that's simply not in this case because counsel conceded this gun -- that operability wasn't an issue here. All we had to prove was that it was a real gun.
05-83 +++$+++ 46517 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, did you have to prove that because, as -- as I have assumed, the charge included the statement that he had used a handgun? Was that the term used?
05-83 +++$+++ 46518 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-83 +++$+++ 46519 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
05-83 +++$+++ 46520 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The charging document said the defendant was armed with a deadly weapon, which establishes the general category, and then, to wit, a handgun. As I say, there -- there was no issue either -- either pretrial or throughout the course of the trial that counsel knew precisely what he was facing.
05-83 +++$+++ 46521 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But all that the jury found was deadly weapon because that's all they were asked to find.
05-83 +++$+++ 46522 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. They only used the terms, deadly weapon, Your Honor, and that's why in the Washington State Supreme Court, we conceded that, technically speaking, the jury's verdict didn't encompass the firearm finding. The express verdict didn't encompass the firearm finding. But under the facts and circumstances of this case, it's our -- our view that that error, even though it could be an error, is harmless.
05-83 +++$+++ 46523 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you -- you could -- it could be argued that it not only didn't encompass the firearm finding, but it excluded the firearm finding. If, as you tell us, there are two categories, one being deadly weapon, which does not include firearm, and the other being firearm, wouldn't you say that the jury verdict positively contradicted?
05-83 +++$+++ 46524 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think, Your Honor, Justice Scalia, if you imagine a situation, as Justice Kennedy was posing, where the jury was presented with two options and they were going to choose one or the other, you might be able to make that argument. But here, the jury was presented only with the definition saying deadly weapon is a firearm, whether loaded or not. And under those circumstances and under the circumstances where the only weapon associated with this assault is a firearm, the only thing that they could have premised their decision on was the firearm. So, as I say, it's not as though they were choosing either or. In Justice Kennedy's hypothetical, you might have had that situation.
05-83 +++$+++ 46525 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is the jury given a copy of the information?
05-83 +++$+++ 46526 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They are ordinarily read a copy of the information, Your Honor, at the start of the case. I don't recall that being transcribed in the -- in the transcript as -- as the court has it. That is the ordinary course of proceedings. In -- in the Respondent's brief, there is a fair amount of time spent on distinguishing this case or -- or trying to analogize this case actually to charging defects. And as I've indicated already for the past few minutes, I believe that this case simply doesn't present that issue because it was readily apparent that this defendant was fully advised of what he was facing. Now, if there were other defects -- if there were true defects in the charging document or if the defendant was surprised by the sentence that the judge ultimately imposed, then we would have to analyze, separately analyze, whether or not the charging document was sufficient. And under this Court's jurisprudence and under Washington law, that is a separate analysis, a separate analysis --
05-83 +++$+++ 46527 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why was deadly weapon put in by the prosecutor at all? If -- if you're right that this is not a deadly weapon case, this is strictly a firearm case, it's not a lesser included, here the prosecutor charged deadly weapon --
05-83 +++$+++ 46528 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
05-83 +++$+++ 46529 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- to wit, a handgun. And then the special verdict form doesn't say one word about firearm. So couldn't the defendant expect, well, they charged the main thing? They charged me with deadly weapon, and they asked the jury to find deadly weapon.
05-83 +++$+++ 46530 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and I think to answer that question, Your Honor, again we have to step back to the year 2000 and -- pre-Apprendi, et cetera. At that time, there were a series of cases, Meggyesy, Olney and Rai, R-a-i, that -- that are overturned, quite frankly, by the Recuenco opinion, where the appellate courts had quite expressly said that it was sufficient to submit the deadly weapon verdict form in that form to a jury where it's clear that the only weapon at issue was a firearm. In each one of those cases, that was what was done. And in fact, in at least one of them, the victim was shot, so there couldn't be any question. So there was -- there was a well-established practice in Washington law at the time of proving that sort of thing. Now, it's true that the more thorough practice, the more precise practice would have been to submit a verdict form that said firearm, but that wasn't done in this case, but it wasn't done, I believe, pursuant to those cases. Unless the Court has any additional questions, I'd like to reserve the rest of my time for rebuttal.
05-83 +++$+++ 46531 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. Ms. Millett.
05-83 +++$+++ 46533 +++$+++ FALSE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: In Neder, this Court held that the failure to submit an element to a jury -- an element of a crime to a jury is subject to harmless error analysis because it is a nonstructural trial error. In Apprendi and Blakely, this Court held that the Sixth Amendment right to trial by jury recognizes no distinction between elements that set a maximum punishment, sentencing elements, and elements of the underlying offense. For that reason, the failure to submit an element that sets the sentence to the maximum sentence available should be subject to exact same harmless error analysis that was applied in Neder. The exact same constitutional value and constitutional right is at stake. The exact same analysis of the effects of the error will be applied by the court, and it's the same sort of discrete error in time that you had in Neder. There's no functional distinction between Neder. In addition, in Schriro v. Summerlin, this Court held that the failure to submit a sentencing element to a jury is not the type of error that calls into question the fairness, accuracy, or reliability of the underlying proceeding. In Cotton, this Court held that that same type of error does not impugn the integrity, public reputation, or fairness of judicial proceedings. And in Mitchell --
05-83 +++$+++ 46534 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Ms. Millett, can I ask you this one question? Would there ever be a case where it was not harmless error when the judge makes the finding? Isn't it -- wouldn't it be reasonable for the appellate court to assume, well, if the judge made the finding, it's probably supported by the evidence and presumably the jury would have come out the same way?
05-83 +++$+++ 46535 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't -- I don't think that's true, Justice Stevens, that there will be times -- I don't think this is one of those cases, but there will be --
05-83 +++$+++ 46536 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But there might be a rare case, but in about 95 percent of the cases, wouldn't it be true that the fact the judge made the finding is pretty good evidence that the jury would have made the same finding?
05-83 +++$+++ 46537 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it will depend on whether the evidence was disputed before the judge in a -- in a -- in the Federal system would have been sentencing hearing. And remember, sometimes --
05-83 +++$+++ 46538 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The judge doesn't have to find it beyond a reasonable doubt, does he?
05-83 +++$+++ 46539 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly. Exactly, Justice Scalia. There's not only -- there may be disputed evidence, but the standard may be different. It's not clear whether it was here, but at least as to some factors. It's clearly not enough that there's sufficient evidence to support the judge's determination. The question would be whether there's any -- a jury could have found any doubt or when it's clear beyond a reasonable doubt, that the outcome would have been the same. But I do think in a case like this, it's important to keep in mind that it's -- this case illustrates that these things are not categorically or necessarily unamenable to harmless error review. And in fact, what would happen in cases like this and a lot in the Federal system, where you have undisputed, uncontested facts -- and we know that because they had the incentive to contest them at a sentencing proceeding. And so to hold that automatic reversal is required would mean it would go back for a retrial that would have nothing to do -- nothing to do with the element that was not decided by the jury. That would be undisputed. There's not going to be any contest back here that the firearm, the semi-automatic that was handed to the jury loaded and passed around to the jury, was a firearm. It would just be a second bite at the apple to contest things that were decided properly and beyond a reasonable doubt by the jury, consistent with the defendant's constitutional rights.
05-83 +++$+++ 46540 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what do we do about the problem that is raised by -- by counsel on the other side, that Washington law is such -- or at least at the time the briefs were written, Washington law is such, as they understand it, that the -- that the issue could never properly have been submitted to the jury, and -- and therefore, if -- if Washington courts are going to follow Washington law, in every case in which a firearm is an issue, the case is going to be handled exactly like this? It's not -- the firearm issue is not going to the jury. The firearm determination will be made by the judge. If the State of Washington decides not to amend its law, we would have a situation in which, in effect, Apprendi is read out of the -- the constitutional law simply by State procedure. And in every case, the -- the response would have to be harmless error analysis on your theory. That is a pretty neat way to undercut Apprendi. Is that not a good reason to say we shouldn't have harmless error analysis?
05-83 +++$+++ 46541 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it's not, Justice Souter. First of all, the Hughes opinion on which they rely is crystal clear that the only thing the court found was that there was no procedure to re-empanel a jury on remand. And I point the Court to page 208 -- that's a P.3d citation and 149 in the Washington Reporter citation -- where the court specifically said, we are only talking about remand and not deciding whether these things could ever be submitted to a jury in the first instance.
05-83 +++$+++ 46542 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you're -- I'm sorry. You're saying their argument is wrong, in effect, as a -- as a statement of Washington law.
05-83 +++$+++ 46543 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's right, but even if it weren't, if -- if you had some State that decided not to fix its law, in light of Apprendi and Blakely, I expect that what would happen is defendants would bring sort of -- there would be a facial constitutionality problem with any attempt to prosecute under that. And that may be the way to deal with it. There's no question of willfulness here. This is decided at a time when, in good faith, pre-Apprendi even -- this isn't even the Apprendi/Blakely window -- that it was acceptable to have this sort of two-tier proceedings much like we are used to in sort of a death penalty context. And there's -- there's been no -- I'm sorry.
05-83 +++$+++ 46544 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't understand what -- what you meant by a facial unconstitutional -- facially unconstitutional problem. You mean a Federal court would enjoin the criminal prosecution because it's unconstitutional on its face? We wouldn't do that, would we?
05-83 +++$+++ 46545 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I can't imagine the Federal court would intervene in an ongoing State proceeding.
05-83 +++$+++ 46546 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Neither can I.
05-83 +++$+++ 46547 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But State courts are perfectly capable of -- of applying and we assume that they would apply and adhere to constitutional law from this Court.
05-83 +++$+++ 46548 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that -- that's not really an adequate answer, that it would be facially unconstitutional.
05-83 +++$+++ 46549 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, my understanding was that the Washington law -- Washington legislature didn't amend its law to say that this could be submitted to a jury. And then every defendant at the outset of the case, would say you need to, you know, strike the indictment, dismiss this charge --
05-83 +++$+++ 46550 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ A motion in limine kind of --
05-83 +++$+++ 46551 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. I think there would be a way -- I'm -- I'm confident there would be a way to deal with it. And I don't think the way to deal with it is to assume that that's a reason to make harmless error not available to these types of errors across the board.
05-83 +++$+++ 46552 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The assumption of the hypothetical is, I take it, that the Washington State judges would deliberately violate our holding of a matter of constitutional law in imposing the enhancement.
05-83 +++$+++ 46553 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They would, and I think that's not a fair assumption and it's certainly not the way to decide whether harmless error analysis should apply. I mean, Blakely has been on the books for a couple of years. Neder has been out there for 7 years, and we haven't seen people deliberately trying to get around people's Sixth Amendment rights.
05-83 +++$+++ 46554 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you agree in this case that the court did have the obligation to submit a special verdict form indicating that the defendant -- asking whether the defendant was armed with a deadly weapon?
05-83 +++$+++ 46555 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that's required by Washington law. The jury --
05-83 +++$+++ 46556 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. As a matter -- a constitutional matter.
05-83 +++$+++ 46557 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That --
05-83 +++$+++ 46558 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose the -- suppose the judge didn't ask about deadly weapon at all, just -- just asked whether there's an assault.
05-83 +++$+++ 46559 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- it's assault in the second degree which requires -- itself requires use of a deadly weapon. So it wouldn't even be assault in the second degree under Washington law without the jury finding a deadly weapon.
05-83 +++$+++ 46560 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you -- so -- so there had to be an instruction that there was an assault in the second degree?
05-83 +++$+++ 46561 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There had -- there had to be a deadly weapon to have assault in the second degree, and then -- and I may not get all the nuances of Washington law, but then the jury had to have the sentencing enhancement, had to make a separate finding that the defendant was armed with a deadly weapon at the time. I'm not sure, again, if it's essentially redundant in second degree assault cases or not. It's a little confusing. But the -- the law required that you find a deadly weapon but it wasn't which deadly weapon. It was just a baseline eligibility, and then it was up to the court to decide which deadly weapon which would then dictate the sentence. And one other point I'd like to make clear is there's been some argument that this case is different from Neder because you have a completed defense. That is no different at all. You had a completed verdict for a non-offense in Neder, and the distinction between a judge making findings that make a verdict that support a non-offense into offense is not one that makes a structural difference. And in Carella v. California, Rose v. Clark, you had elements that stood on the fault line between lesser included offenses and greater included offenses. And now, there they weren't missing -- they weren't technically missing elements, but they were elements that were subject to mandatory presumptions by the jury. And yet, this Court said that they're subject to harmless error analysis. Now, obviously, the type of the element is going to affect the government's ability to prevail under harmless error analysis, and there may well be times when the government will not succeed in that process, especially as you get elements that are more central to, you know, the -- the crime and -- and traditional elements like the intent issues that were at issue in both Carella and in Rose v. Clark. The other point I wanted -- I wanted to make is that the fact that the jury verdict form here came back consistent with -- with the -- or the jury verdict form in Neder came back with the completed crime shouldn't make a difference. The change in the -- that jury verdict only came back because of a second mistake. The jury was wrongly and mistakenly told that if it found elements A, B, and C, it would -- it would establish a -- a completed crime. The fact that in this case you don't have that second error isn't again a difference that makes one error structural and the other nonstructural. The important thing is that the right is the same. The cost -- the right to the same, the ability of courts to analyze this error is the same. And on the other hand, a rule of automatic reversal will impose an enormous cost on victims and the public. Thank you.
05-83 +++$+++ 46562 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Ms. Millett. Mr. Link.
05-83 +++$+++ 46564 +++$+++ FALSE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The Washington Supreme Court correctly held that as a matter of Federal and State law, the error in this case, as in Blakely cases generally, could not be subjected to harmless error analysis. I think it's important to clarify that as a matter of State law and -- and as recognized by the Washington Supreme Court in its decision in Recuenco, the deadly weapon enhancement and the firearm enhancement are, in fact, lesser and greater offenses of one another. We know that based on -- on what -- what action the court took on remand. It didn't dismiss the -- the enhancement altogether. It said the only thing that could be done on remand was imposition of the lesser enhancement.
05-83 +++$+++ 46565 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How could it be lesser included when, as we've heard, firearm does -- I'm sorry -- deadly weapon does not include firearm? If deadly weapon included firearm, then certainly -- I'm sorry -- deadly weapon would -- would -- could be a lesser included offense somehow. But the two are exclusive categories, aren't they?
05-83 +++$+++ 46566 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under Washington law -- it's important to understand that under Washington law, a handgun is -- is a deadly weapon per se, but that handgun is only a firearm if the State establishes the additional fact that it has the capacity to fire, which is -- which is why the statute, the deadly weapon statute, and the definition of deadly weapon in -- in the statutory provision specifically includes handguns, revolvers, and other guns.
05-83 +++$+++ 46567 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if it has the capacity --
05-83 +++$+++ 46568 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the statute does say deadly weapon other than a firearm.
05-83 +++$+++ 46569 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The definition statue of -- of deadly weapon doesn't. It's --
05-83 +++$+++ 46570 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the enhancement section does.
05-83 +++$+++ 46571 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's a separate provision on the enhancement -- or excuse me -- as to the length of the enhancement that would be imposed does.
05-83 +++$+++ 46572 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, do you think in this case you'd be entitled to a lesser included offense instruction as a matter of law?
05-83 +++$+++ 46573 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that as a matter of Washington law, the answer would be yes. And again, I think it turns on the fact that there's this additional factor, additional element, of capacity to fire that differentiates a handgun from a firearm.
05-83 +++$+++ 46574 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, was there any evidence that it didn't have the capacity to fire?
05-83 +++$+++ 46575 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was no evidence, I think, to suggest that it did.
05-83 +++$+++ 46576 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're not entitled to -- you're not entitled to a lesser included offense instruction for which there's no evidence.
05-83 +++$+++ 46577 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under Washington law, a defendant gets a lesser included instruction so long as the evidence, viewed in the light most favorable to him, would support the fact that the lesser was -- was included. Now, it can't turn on whether or not the State -- or whether the jury simply disbelieves the State's proof, but it can -- when looking at the -- the evidence in the light most favorable to the defendant, look at holes in the State's evidence, such as the fact that there is no evidence before this jury about this gun's capacity to fire.
05-83 +++$+++ 46578 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but there -- there is evidence from which the jury could find that it was a real gun, and in the absence of any indication to the contrary, that is competent evidence for the jury to use in concluding that it would function like a real gun. It's not -- they didn't have to put in further technical evidence. An issue might have been raised. I mean, your -- the -- the defendant might have come up and -- and presented evidence to the effect that it was only a starter pistol, in which case, okay, there would be a real issue. But in the absence of any reason to doubt that the handgun was what it purported to be, there would be no reason to -- there would be no requirement of further evidence about functionality, would there be?
05-83 +++$+++ 46579 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As a matter of Washington law and as of the fact that this is, indeed, an element of a greater offense, there is a requirement on the State to come forward with additional proof of the capacity to fire.
05-83 +++$+++ 46580 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's -- what's your authority? I mean, that doesn't seem -- as a matter of factual common sense, that doesn't seem required. Is -- is there a Washington case that requires that?
05-83 +++$+++ 46581 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is not. It's the statutory language of the deadly weapon enhancement itself.
05-83 +++$+++ 46582 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what exactly in the language is it that you hang your hat on?
05-83 +++$+++ 46583 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The fact that the deadly weapon enhancement can apply specifically to a handgun regardless of the manner in which it's used. For instance, it -- a -- a handgun that does not have the capacity to fire could be used to -- to strike an individual, and in that context would be a deadly weapon regardless of whether it was likely to cause a serious bodily harm.
05-83 +++$+++ 46584 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No -- no question. But if there -- but if there is no reason to question its apparent functionality, I mean, you know, it's a handgun. It looks like a handgun. Somebody is holding it like a handgun -- there -- there is no reason, it seems to me, as a matter of fact or based on the statute to doubt that it would be functional. And therefore, it would seem to me that the proof would be competent that it was a functioning handgun in the absence of any question raised.
05-83 +++$+++ 46585 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, if we compare the definition of a deadly weapon under Washington law with the definition of a firearm under Washington law, a handgun is by definition a deadly weapon. But a handgun is not by definition a firearm.
05-83 +++$+++ 46586 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, you asked for an instruction on the lesser offense of aiming a firearm. Under that provision of Washington law, does the firearm have to be operable as well?
05-83 +++$+++ 46587 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would seem that the -- the same definition of firearm would apply.
05-83 +++$+++ 46588 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you ask for an instruction assuming that the firearm at issue in this case was operable.
05-83 +++$+++ 46589 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Again, I believe that he -- he asks -- an individual could ask for an instruction in that case and still maintain that the State hasn't met the proof of -- of establishing even the lesser. And there's nothing tactically contradictory about doing so. If -- if one -- if an attorney can convince the court to -- to allow the jury to consider a lesser, and then still challenge that -- the proof of that lesser --
05-83 +++$+++ 46590 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if the firearm were not operable, you would not have been entitled to a jury instruction on the lesser offense of aiming a firearm. Correct?
05-83 +++$+++ 46591 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the firearm -- if looking at the evidence in the light most favorable to the State, he may not have been entitled under the -- the factual prong that -- that the Washington courts use on lesser and greater offenses.
05-83 +++$+++ 46592 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's say a new case comes up tomorrow and the person is charged in an information with assault in the second degree, and it's clearly alleged in the information that a firearm was used. But then when the case is submitted to the jury, the judge just forgets to charge on the firearm factor or element. Would that -- could that be harmless error? Is that any different from the case that's before us?
05-83 +++$+++ 46593 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that if the parties litigate the question of whether or not it was an assault with -- with a firearm, as opposed to litigate the offense of assault with a deadly weapon, and then there's merely an omission from the elements, I think that's a different case. But I don't --
05-83 +++$+++ 46594 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's a different -- is it a materially different case?
05-83 +++$+++ 46595 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it's a materially --
05-83 +++$+++ 46596 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is it just like Neder, or is it different from Neder?
05-83 +++$+++ 46597 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that scenario would be closer to Neder, but I think that's a different scenario than what we have here. And I think the reason why it's different here is because the jury returned -- under Washington law, returned a complete verdict. There is no -- there was no error in either the verdict or in the jury instructions as a --
05-83 +++$+++ 46598 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Take Justice Alito's case, and nobody litigated it because nobody doubted that it was a loaded gun. Now, what's the result?
05-83 +++$+++ 46599 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In that scenario, if the evidence is overwhelming as -- as perhaps it was in Neder, one might assume that the error is uncontroverted. But --
05-83 +++$+++ 46600 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. So -- so, therefore, it's harmless. So, therefore, we use harmless error analysis. So what's the difference between that case and this case?
05-83 +++$+++ 46601 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because I think unlike Neder this case involves a jury -- or excuse me -- the -- a -- the wrong entity has determined the defendant's guilt not on the crime at issue --
05-83 +++$+++ 46602 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, I quite -- I quite agree with you that there is the difference that in the Alito case as amended, it all happened before the jury got its verdict. In our case, it happened after the jury reached a verdict. Now, absolutely true. And my question, of course, is why does that matter.
05-83 +++$+++ 46603 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because in a scenario where the jury has been properly instructed and has returned a complete verdict --
05-83 +++$+++ 46604 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. It was improperly instructed. The judge forgot to give this instruction about the nature of the firearm. I take it -- at least my case -- the judge forgets to instruct about the firearm. He just forgets. All right? And then the jury goes out. It comes back and the lawyer says, Judge, I handed you the instruction. Why didn't you give it? He says, oh, my God, I forgot. Now, does harmless error apply to that case?
05-83 +++$+++ 46605 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that scenario is closer to Neder than it is to this case.
05-83 +++$+++ 46606 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I want to know why that matters because the only thing I've tried to create the hypothetical to matter is the one thing happens before the jury goes out, and the other happens after. And why does that matter?
05-83 +++$+++ 46607 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it matters because in a scenario like this, as opposed to either Neder or -- or the hypothetical, the only offense that has ever been litigated to the parties -- or by the parties to the jury was the lesser offense. The parties understood that only the lesser offense was at issue, and we know that because in response to Mr. Recuenco's motion to vacate, the State told the judge you aren't required to give the firearm instruction because that's not an element of either the substantive charge or the enhancement.
05-83 +++$+++ 46608 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. But it's also the case, as I understand it, and as counsel on the other side confirmed a few moments ago, that the charge specifically specified that a handgun had been used. So this is not a case, as I think you were suggesting, in which there has never been a charge of the offense plus the enhancement they now claim. The -- the problem was in the jury verdict, not in the charge, not in notice to the defendant. And if that's the case, why isn't it just like Neder?
05-83 +++$+++ 46609 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because, again, I go back to Washington law. And the fact that handgun is alleged in the information does not establish that it's a firearm because a handgun --
05-83 +++$+++ 46610 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, a -- a firearm, as I understand it, is defined to include a pistol or a revolver. Is that correct?
05-83 +++$+++ 46611 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is.
05-83 +++$+++ 46612 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Isn't the natural reading of -- or understanding of the word handgun that it's a pistol or a revolver? I mean, isn't that what people would normally take it to mean?
05-83 +++$+++ 46613 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That may be, but as a matter of Washington law, that's not the case. And it may defy common sense, but that's what it does.
05-83 +++$+++ 46614 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but you're asking for a -- you're asking for a Federal constitutional ruling, and right now, if I understand you correctly, you're arguing that you ought to win because if you don't win, as a matter of Federal constitutional law, we would be condoning a verdict for an offense that was never charged. But if, in fact, handgun is properly read, properly understood to mean a pistol or a revolver, and that's what a firearm -- that's -- that's what a firearm is -- is defined to include under Washington law, then in fact the offense has been charged. The enhancement has been charged. And as a matter of Federal constitutional law, it seems to me that ought to be enough to bring it within Neder regardless of what the quirks of Washington law may be.
05-83 +++$+++ 46615 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If, in fact, the allegation of handgun is sufficient to bring it in the context of Neder, then there -- there was no error at all. There would not have been a Blakely violation in this case. And the wrong -- the State was wrong all along to concede that there was because Apprendi doesn't just involve -- doesn't just say that sentencing elements are the equivalent of elements in the traditional sense. It says they're the equivalent of elements of a greater offense. And the State concedes and the Washington Supreme Court has found that, in fact, there was a Blakely violation in this case.
05-83 +++$+++ 46616 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that's because it -- it didn't go to the jury.
05-83 +++$+++ 46617 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's because the judge, as opposed the jury --
05-83 +++$+++ 46618 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-83 +++$+++ 46619 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- decided Mr. Recuenco's guilt on a greater offense.
05-83 +++$+++ 46620 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
05-83 +++$+++ 46621 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So -- so as a matter of Washington law, Mr. Recuenco's jury was properly charged and properly returned a verdict on the only offense litigated and that was the lesser offense of assault two with a deadly weapon.
05-83 +++$+++ 46622 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, when you say it's not litigated, do you mean simply that nobody, none of the witnesses, none of the counsel in argument, disputed that a handgun was there? In other words, it was just one of those things everybody understood. Is that what you mean when you say it wasn't litigated?
05-83 +++$+++ 46623 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What I mean by saying it wasn't litigated is that it was the understanding of the parties at trial that the firearm element was not at issue because that had not been charged, that that was not the charge in front of the jury.
05-83 +++$+++ 46624 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And -- and what do you -- what do you base that statement on? In other words, I -- I think you're now arguing that the understanding was that although it looked as though the -- the most serious enhancement had been charged, the understanding of the parties was that it had not been. If that's your argument, what is your basis for saying that?
05-83 +++$+++ 46625 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, I could point to the -- the prosecutor's response in the motion to vacate. I can point to the court's judgment and sentence, which I don't have the cite for right off the -- my head, but it is in the joint appendix. On that form, as is common in Washington, there are two boxes for the court to check. One says that a verdict regarding a deadly weapon -- or excuse me -- that a firearm other than a deadly weapon was returned. The other says that a -- a -- excuse me. One says that a verdict form for finding that the person was armed with a firearm was returned. The other says that it was merely the verdict form for being armed with a deadly weapon other than the firearm. The trial --
05-83 +++$+++ 46626 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, what your trial counsel said was that the -- I'm quoting from the joint appendix, page 30 -- the allegation and the basis on which this case was tried was under the theory of firearm. It seems inconsistent with your representation that nobody had an idea that they were trying this under the theory of a firearm.
05-83 +++$+++ 46627 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it's -- it would be equally inconsistent with the State's current position if we look at JA 35 where the prosecutor's response was we didn't need that instruction because firearm was not an element of the crime charged.
05-83 +++$+++ 46628 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think it would have been error in this case based on the evidence presented and the way the -- the case was argued -- would it have been error for the judge to instruct the jury that if they found that there was a firearm involved, they should make a -- they could make a -- a finding on that?
05-83 +++$+++ 46629 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's interesting because post Recuenco, after the Washington Supreme Court's ruling in this case, yes, that would be an error because after the Washington Supreme Court's decision in this case, what they said is that --
05-83 +++$+++ 46630 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But as a constitutional matter, would it have been error for the judge to instruct the jury in this case, based on this evidence, that they could return a verdict that a firearm was used as part of the assault?
05-83 +++$+++ 46631 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As a matter of constitutional error, no, I don't believe it would have been. But as -- but under Washington law, it was a verdict they couldn't -- as we know from Recuenco now, it's a verdict they couldn't have returned.
05-83 +++$+++ 46632 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Millett tells us that that only applies on remand under -- under the Hughes case.
05-83 +++$+++ 46633 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under Washington law, when a court -- as I think is common under Federal law, whenever a court interprets a statute, determines what it means, that is what the statute has always mean -- means, and -- and that is what that statute will mean in the future until such time as the legislature amends it. As of this date, while the -- the legislature has amended the statutes at issue in Hughes, it has done nothing with respect to this statute. So, as it stands now, based on the recognition of the Washington Supreme Court that at the time of the entry of that decision, there was no provision to submit that question to a jury in Mr. Recuenco's case. There was also no provision to submit it to a jury in another case because prior to Recuenco, the only means by which the firearm enhancement could be obtained was pursuant to the decisions in Meggyesy, Rai, and Olney. And that was the very manner that was used here, and that was the very procedure that the Washington Supreme Court found violative of Blakely.
05-83 +++$+++ 46634 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Link, will you just -- maybe I -- I should know this, but the information charges an assault in the second degree using the deadly weapon. If they had charged use of a firearm rather than a deadly weapon, what would the crime have been? Would that also have been assault in the second degree?
05-83 +++$+++ 46635 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's an interesting twist under Washington law because the deadly weapon is -- is actually two elements of assault two. Under the substantive offense, it's a component of -- of assault, and also an element of the -- but to allege a firearm, it is possible that the substantive offense could have been elevated to assault one. It's also possible that it could have simply been an assault two with a firearm enhancement. So --
05-83 +++$+++ 46636 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The firearm enhancement itself would not covert it from second degree to first degree.
05-83 +++$+++ 46637 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. And -- and I think this illustrates a point. Under Washington law, the State could charge assault three with a firearm enhancement in -- in a case in which a person used a gun. There's nothing under Washington law that requires the prosecutor to charge the greatest offense. There's nothing under Federal constitutional law that even if that greater offense is charged, that the jury must return a verdict on that greater offense. In fact, the jury, as the circuit breaker in the system, has always -- always has the right, regardless of the strength of the evidence and regardless of -- of what the trial court might view as the correctness of the charge, to return the verdict on the lesser.
05-83 +++$+++ 46638 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You say regardless of the strength of the evidence. How about no evidence at all?
05-83 +++$+++ 46639 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think this Court's jurisprudence on -- on questions of -- of lenity and interpreting jury verdicts would allow a jury to return a verdict that -- that isn't necessarily supported by the evidence. It's the understanding that it's their --
05-83 +++$+++ 46640 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the question is whether or not it requires it.
05-83 +++$+++ 46641 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think this Court requires that the jury -- but I think what -- what I'm trying to say, I guess, is that it requires -- not requires. It -- it imposes deference on the trial courts that they cannot second-guess the jury, that because the jury is always free to return a verdict on the lesser offense, there simply cannot be a situation in which the trial court, based on its own assessment of the facts, gets to enter the greater.
05-83 +++$+++ 46642 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, doesn't -- isn't that true in Neder as well?
05-83 +++$+++ 46643 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think in Neder -- Neder is a different case and for a number of reasons. Unlike Neder, there has never been a claim that there's any incorrectness in either the verdict in the charge or in the jury instructions. In fact, Mr. Recuenco from the outset had no reason to suggest that there was anything wrong because the State was free to charge him with the lesser offense, and they did. There would be no motive on his part to say, excuse me, Your Honor, I think I'm really guilty of a greater offense. Please ask the State to amend its information.
05-83 +++$+++ 46644 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You keep saying a lesser offense and a greater offense, but under Washington law, there's just one offense. Isn't that right? It's second -- it's assault in the second degree.
05-83 +++$+++ 46645 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's assault in the second degree with the additional deadly weapon enhancement.
05-83 +++$+++ 46646 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if we accept -- going back to our earlier exchange, if we accept the proposition that charging that he used a handgun was sufficient to charge a firearm, then the charge against him was assault in the second degree with the maximum enhancement for use of a firearm.
05-83 +++$+++ 46647 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, had --
05-83 +++$+++ 46648 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You -- you and I may disagree on -- on how to read -- how to understand firearm, but if you read it the way I just suggested, then the charge was assault two with the maximum enhancement. Isn't that correct?
05-83 +++$+++ 46649 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think if the information and -- and the instructions were read in that manner, the State was wrong to concede that there was Blakely error here at all because, if as a matter of law, a handgun is automatically a firearm, there would have been no Blakely violation at all. But that's not the case.
05-83 +++$+++ 46650 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I thought the -- I thought the reason they conceded the Blakely violation was that in the instructions to the jury, the instruction only went to deadly weapon and the instruction did not specifically refer to firearm. I thought that's why they -- they stipulated that there was a Blakely error. As a matter of the fact about the instruction, is -- is my description correct?
05-83 +++$+++ 46651 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure I can answer right -- I believe the instruction mentioned handgun. The instruction --
05-83 +++$+++ 46652 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. And it didn't -- it didn't use the -- let's put it this way. it didn't use the word firearm. Right?
05-83 +++$+++ 46653 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it did not.
05-83 +++$+++ 46654 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's -- that's why they conceded a Blakely error.
05-83 +++$+++ 46655 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But again, if -- if under Washington law, a handgun were automatically a firearm, the instruction wasn't erroneous at all.
05-83 +++$+++ 46656 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but the special verdict form still was.
05-83 +++$+++ 46657 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the instructions for use of the special verdict form would not have been. And -- and it's because of that -- that quirk in Washington law -- and the State offered us some suggestion of why that quirk exists. The deadly weapon provisions have been a part of the Washington sentencing scheme since its enactment in the mid-'80's. It was only about 10 years later that the additional enhancements for firearm were added, and -- and they were enacted by -- by a citizens initiative. And there's very little reference between the two of them. But they still exist together because there's nothing that suggests, again, that the State couldn't allege the lesser offense even where a handgun is -- is involved because it is the difference between a handgun with nothing more and a handgun that has the capacity to fire. And it's that additional component of capacity to fire that truly creates the greater and lesser offense in this case.
05-83 +++$+++ 46658 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I just clarify one other thing? Capacity to fire doesn't mean it had to be loaded, though.
05-83 +++$+++ 46659 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Capacity to fire does not mean per se operability. It -- it means that this instrument has the capacity to fire whether or not --
05-83 +++$+++ 46660 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ An unloaded gun could be a firearm.
05-83 +++$+++ 46661 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ An -- an unloaded gun could be a firearm so long as it has the capacity to fire.
05-83 +++$+++ 46662 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In the charging document, where it says that he was armed with a deadly weapon, to wit, a handgun, and then it cites the Washington statutes, those citations include the 3-year enhancement provision?
05-83 +++$+++ 46663 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the citation to what is now --
05-83 +++$+++ 46664 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It cites RCW 9.994A.125 and 9.94A.310. Is one of -- is one of those the 3-year enhancement?
05-83 +++$+++ 46665 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ .310 is -- is the definition of deadly weapon. The other one -- excuse me -- .125 --
05-83 +++$+++ 46666 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ 9.94A.125.
05-83 +++$+++ 46667 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That includes both the firearm -- the additional time for firearm enhancement, as well as the time for the deadly weapon enhancement.
05-83 +++$+++ 46668 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it includes the 3 years.
05-83 +++$+++ 46669 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it cites both, depending on what subsection it's citing. So it doesn't necessarily identify one as opposed to the other.
05-83 +++$+++ 46670 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it does include it.
05-83 +++$+++ 46671 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is in that -- that statute, yes.
05-83 +++$+++ 46672 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And do you know if the information went to the jury in this case?
05-83 +++$+++ 46673 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As is consistent with Washington law, it's read to the jury at -- at the outset, but it -- it would be inconsistent, I think, with practice in Washington to have actually submitted the -- the information to the jury. In a situation like this, where the wrong entity has determined a person's guilt, despite the jury's complete verdict on a lesser offense, the application of harmless error simply eviscerates what Blakely sought to draw as the limits -- or excuse me -- as the -- as the outer boundaries of the jury's right. And in fact, it -- it's the equivalent of a second Sixth Amendment violation because in each instance, the jury's complete verdict on the lesser offense is being set aside. In the first instance, it's based on the trial court's review of -- of the strength of the evidence, and in the second instance, it's based on the -- the appellate court's review of the strength of the record to support not the jury's verdict, but instead the trial court's assessment of the proper charge.
05-83 +++$+++ 46674 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the other way of looking at it is it's based on trying to understand what the jury meant when it said deadly weapon when the only evidence of a deadly weapon they were presented was a firearm.
05-83 +++$+++ 46675 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It assumes, I think, that -- that the -- it assumes the correctness of the judge's -- of the trial court's assessment of the facts rather than simply accept the -- the jury's verdict for what it was because, again, as a matter of Washington law, Mr. Recuenco could be found guilty of assault two with a deadly weapon even if he used what appeared to be a handgun, absent some proof of capacity. And again, as a matter of -- of Sixth Amendment jurisprudence, even had the State put together evidence establishing the capacity of the instrument to fire, the jury would have been free to return a verdict on the lesser offense of deadly weapon, even if it were to contradict Washington law on that point. The jury would --
05-83 +++$+++ 46676 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And in Neder, even if the jury had been asked to rule on materiality, it could have decided not to rule according to the evidence. The same argument applies in Neder.
05-83 +++$+++ 46677 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but, again, in Neder, the jury returned a verdict of guilty on the offense that was litigated to it and based on the parties' understanding of what offense was at issue. In this case, that doesn't happen. And, again, it's illustrated by the prosecutor's response to Mr. Recuenco's motion to vacate, and it's illustrated by the court's judgment and sentence, which is at page 14 of the joint appendix, where it specifically finds that the only verdict -- and -- and again, doesn't question the verdict -- that the only verdict returned was deadly weapon other than a firearm. It doesn't assume that the jury found that it was the firearm verdict. It doesn't make that assumption. It recognizes that verdict for what it was. But based on then-existing Washington law, which Recuenco overturned, it concluded it had to impose the firearm enhancement. So there's no suggestion by either the parties or the trial court or the Washington Supreme Court, for that matter, that there was anything wrong with the jury returning a verdict of deadly weapon because, as a matter of Washington law and as recognized by each of those -- those entities, the jury -- the jury could do that, and they did. Refusing to apply harmless error in this case doesn't require a single retrial of a single individual. Unlike the normal case, unlike Neder itself, in -- in those cases, had harmless error not applied, the defendants would have been entitled to a new trial. That's not true after Blakely. At best, what would happen is -- is defendants would be remanded back to -- to the various trial courts for the reentry of the sentence that's supported by the -- the jury's verdict. There will be no need to conduct new trials. There will be no need to do anything, other than that simple ministerial act. There simply is no prudential reason. There won't be the flood of -- of retrials or -- or the prison doors thrown open for -- for people to walk free with no convictions.
05-83 +++$+++ 46678 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I -- I take it Washington wouldn't have the option -- suppose that you prevail. Washington doesn't have the option to give him a whole new trial, do they, because there's been double jeopardy, I take it.
05-83 +++$+++ 46679 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As it exists now and based on the Washington Supreme Court's decision in Hughes and Recuenco, those individuals sentenced before the Washington legislature amended the act would simply be entitled to have their cases remanded back for entry of a conviction based on the jury's verdict.
05-83 +++$+++ 46680 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What I'm saying, you don't concede, do you, that Washington would have the option to retry him to try to obtain the 3-year enhancement.
05-83 +++$+++ 46681 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I certainly don't.
05-83 +++$+++ 46682 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I wouldn't think so.
05-83 +++$+++ 46683 +++$+++ TRUE +++$+++ MR. LINK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And both as a matter of double jeopardy and as a matter of Washington law, I don't think that -- that would -- could occur. The Washington Supreme Court correctly held that harmless error analysis could not apply where the trial court has set aside the jury's complete verdict on a lesser offense in favor of a judgment on the greater, both as a matter of State and Federal law. And Mr. Recuenco would ask this Court to affirm that decision.
05-83 +++$+++ 46684 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Whisman, you have 4 minutes remaining.
05-83 +++$+++ 46686 +++$+++ FALSE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Whisman, can I -- can I ask you a hypothetical which I think puts in starker form what the -- what your colleague here says this case involves? Suppose that -- that you have a statute, a murder statute, which applies to the murder of a single individual, but -- but you have another statute with a death penalty called aggravated murder. And it's a different crime and it -- it requires the -- the killing of more than one person in -- in the same -- in the same event. Let's assume a trial in which somebody came into a bank with a machine gun. Only one person came in, and five people were killed. But the prosecution only brought a prosecution for simple murder. Okay? And the jury comes back with a verdict for -- for simple murder. Certainly a judge would not be able to say, well, no jury could possibly have found simple murder here without also thinking that this person was guilty of -- of this greater offense of -- of aggravated murder and, therefore, I'm going to enter a judgment of aggravated murder. That's what the -- the defense says happened here, that there was just a verdict of -- of the lesser offense. That's all the jury found. It could have found more and maybe -- maybe in finding that, it -- it must have thought that the greater offense also existed, but it never came in with a verdict for the greater offense. Now, tell me why what happened here is different from -- from the hypothetical.
05-83 +++$+++ 46687 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the key difference is the charging part of your hypothetical. Your hypothetical assumes this defendant was never put on notice that he was facing aggravated murder, and if that were true, then under your cases and under -- under our Washington law, we would analyze that as a failure of notice. The -- and it could have any number of implications for a defendant, including the evidence that they marshal at trial, but also including perhaps his interest in negotiating a plea agreement if a defendant doesn't know that he's facing aggravated murder at the end. So --
05-83 +++$+++ 46688 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, suppose under Justice Scalia's hypothetical, aggravated murder is -- is in the charging documents, but the judge doesn't say aggravated murder when he submits it to the jury.
05-83 +++$+++ 46689 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Then I think that is susceptible to harmless error analysis, Your Honor. And it would be -- there would be an open question as to whether or not, of course, it is harmless, but then I think that we're back to the Neder situation.
05-83 +++$+++ 46690 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But then we'd have Justice Scalia's case if this information left out the words, to wit, a handgun.
05-83 +++$+++ 46691 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You would be closer to Justice Scalia's case, Justice Stevens, yes. Although under Washington law, we analyze the charging document and the sufficiency of it and ask whether or not it was -- the words used sufficiently appraised the defendant. But I think the defendant would have a stronger argument for the fact that he didn't know what he was facing if you had that hypothetical.
05-83 +++$+++ 46692 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And those are the sort of considerations that can be taken into account under harmless error analysis. Right? The absence of notice, the prejudice. I would have put on this evidence if I had known I was accused of using a handgun.
05-83 +++$+++ 46693 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They can be a component of the harmless error analysis. Ordinarily in Washington, we would handle that as a charging document challenge. In other words, the defendant would say I was never charged with this crime and therefore I didn't marshal my evidence, et cetera. It's a due process violation. Either way, I don't think that the -- the conviction stands much chance of surviving. I did want to answer, first, a question that had been raised by pointing the Court to JA 18 where the defendant says, my proposed instruction makes clear that the deadly weapon in question is the firearm, that -- not that some other kind of weapon might have been deadly. So I think that focuses the issue appropriately. I also wanted to point out that Justice Alito's hypothetical is really the State v. Williams case that we cited at page 14 in our reply brief where the defendant was expressly charged firearm and the victim was shot during the course of the crime. And the issue didn't go -- the -- the same verdict form as we have here -- in other words, it said only deadly weapon -- was given to the jury, and the Washington court of appeals, feeling itself bound by Recuenco, reversed that finding. So I think that the opinion of the Washington Supreme Court is unduly broad and should be overturned.
05-83 +++$+++ 46694 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel.
05-83 +++$+++ 46695 +++$+++ TRUE +++$+++ MR. WHISMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor.
05-83 +++$+++ 46696 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The case is submitted.
05-848 +++$+++ 46700 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We will hear argument first this morning in Environmental Defense versus Duke Energy Corporation. Mr. Donahue.
05-848 +++$+++ 46702 +++$+++ FALSE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Good morning, Mr. Chief Justice, and may it please the Court: The Clean Air Act requires that the owner of a major emitting facility obtain a prevention of significant deterioration permit before engaging in a modification, which is defined to include any physical change that increases the amount of any pollutant emitted by such source. Since 1980, EPA's PSD regulations have measured such increases in terms of actual emissions in tons per year.
05-848 +++$+++ 46703 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's a disputed point, I gather, central to the case, whether or not the regulations measured PSD emissions through that device rather than the hourly emissions.
05-848 +++$+++ 46704 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Mr. Chief Justice, but the text of the regulations refers pervasively, and I'm referring to the definition of Official major modification which is in 40 CFR 51.166(b)(2) and subsequent paragraphs of that regulation, refers pervasively to actual emissions and measures emissions exclusively in tons per year.
05-848 +++$+++ 46705 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It is a little of an exaggeration, though, to say that EPA has since the issuance of the regulations always interpreted them the way that you prefer. In fact, the director of the PSD program gave two opinions in which he took precisely the interpretation that opposing counsel took.
05-848 +++$+++ 46706 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Scalia. Respondent has relied heavily on two early applicability determinations.
05-848 +++$+++ 46707 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Rightly so, I think. I mean, it was the earliest, application of the regulation by the officer of the agency specifically in charge of the program.
05-848 +++$+++ 46708 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia, as we point out in our brief, Director Reich does not adopt Duke's theory, in fact contradicts it. He doesn't say that a new source performance standard modification must precede a PSD major modification. Instead, in both he relies on the express exclusion in the PSD regulations for increases in hours of operation and the production rate, and as EPA explained in its contemporaneous Official preamble, that provision by its terms is an exception from the definition of physical change. It is not a provision that says -- increase is attributable to a physical change, to increased hours that are enabled by physical change, are not considered. The plain language of the regulation actually contradicts this reading. These determinations themselves are quite ambiguous, and of course they are two of dozens of such determinations.
05-848 +++$+++ 46709 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, whatever the reason he gave, was it -- these opinions were out there when the challenge to the regulations, in which Duke did not participate, when that challenge was brought, were these -- were those opinions already out there?
05-848 +++$+++ 46710 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Those opinions were out there but the plain language of the regulation and the preamble which explain that the increased hours exclusion was simply to allow companies to respond to demand and to link the coverage of PSD to construction activity. What we have here is a physical change in the plants, massive renovations of these elaborate networks of pipes and tubes that compose a central component.
05-848 +++$+++ 46711 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I understand that, and I think you may have the better of the argument on me on the interpretation of the PSD regulations. But what I Official am concerned about is that companies can get whipsawed. They don't challenge the regulations when they come out because as far as they know, the agency is interpreting them in a way that they favor. And then some years later, when it turns out the agency is using a different interpretation, you have the jurisdictional bar.
05-848 +++$+++ 46712 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia, these regulations were challenged early on and there was a -- as the Court is aware, there was a settlement agreement in 1982 to which Duke was, in fact, a party, that proposed to add the hourly rate test that is completely absent from these regulations.
05-848 +++$+++ 46713 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But could Duke have had a challenge to the 1992 or 2000 regulations? Could they have reopened the issue at that point?
05-848 +++$+++ 46714 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They did in fact precisely that, Justice Kennedy, and that was resolved in the New York proceeding by the D.C. Circuit. Duke didn't challenge the very prominent aspect of the 1980 regulations, which was to move away from the potential emissions test of prior --
05-848 +++$+++ 46715 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't want to jump ahead to the jurisdictional argument if you want to talk about the modification substantive point first, but it is not clear to me whether Duke should have acted in 1980, Official 1992 or 2000, or all of the above.
05-848 +++$+++ 46716 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the regulations were clear on their face. I mean, to determine the effect of 307 --
05-848 +++$+++ 46717 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's an audacious statement. (Laughter.)
05-848 +++$+++ 46718 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We've wrestled with these things for several days. It's disappointing to hear you tell us they're clear.
05-848 +++$+++ 46719 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They're clear in this respect, they did not include an hourly rate test. As Judge Posner in the Cinergy opinion this summer said, the argument that the statute mandates an hourly rate test is a challenge to the validity of these 1980 regulations because they don't say it, they don't provide for it, and they are very specific and detailed, and instead turn on actual annual emissions. And the entire rationale EPA offered was linked to that effort to capture real world changes in emissions.
05-848 +++$+++ 46720 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If they are so clear, how can you account for Mr. Reich's interpretation? He's an expert in the area.
05-848 +++$+++ 46721 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. He misapplied, he didn't adopt this theory, the theory that an NSPS Official modification precedes at all; in fact, he contradicted it. He misapplied in quite sort of anomalous circumstances the increased hours --
05-848 +++$+++ 46722 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know you say he's wrong, but if somebody in his position with his expertise can interpret the regulations in that way, doesn't that show that they're not clear on their face?
05-848 +++$+++ 46723 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We think that this Court can resolve, can interpret, can address the reasonableness of EPA's construction of the increased hours exclusion. What it can't do is certainly what the Fourth Circuit did, which is to say that the PSD regulations must be the same. They are obviously not the same. They are different in multiple respects. And certainly that challenge could have been raised, and certainly that challenge was barred, and of course the court of appeals expressly called the regulations irrelevant, the texts and interpretations of the regulations. That's exactly what a court is supposed to be doing.
05-848 +++$+++ 46724 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right. In deciding whether the regulations are reasonable, however, is it proper for a court to take into account that the regulations must follow the prescription of the statute that the PSD definition be the same as the NSPS -- what is it -- NSPS definition? I mean, that's a usual tool of statutory -- Official or regulatory construction. Cannot a court give great weight to that in interpreting these ambiguous regulations?
05-848 +++$+++ 46725 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that -- they're not ambiguous as to whether they're identical, and to hold that they have to be is certainly an invalidation. And the D.C. Circuit, of course, held that the statute doesn't require identity as between the two sets of regulations. And we're not here on certiorari from the New York decision, we're here on an enforcement action in which a court leapt over the express limitations imposed on it, declared the language of the regulations irrelevant, and indeed misapplied them rather dramatically.
05-848 +++$+++ 46726 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I don't think the same argument has necessarily to be made, but the question still before us is how you interpret the regulations. Let's assume that's just a regulatory interpretation question, it's not a statutory question.
05-848 +++$+++ 46727 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Right.
05-848 +++$+++ 46728 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But in deciding that, whatever was argued in prior cases, it seems to me that we're entitled to take into account the necessity that the regulations comply with the statute. And if they are ambiguous, we should resolve the ambiguity in the Official direction that it seems to us would provide consistency with the statute. Now does that violate the jurisdictional bar?
05-848 +++$+++ 46729 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I have no problem with any of that. If the regulations are ambiguous, take into account the statutory text, structure, policies. What the court below did, of course, was say it doesn't matter what the regulations say, these have to be the same. It forgot that in fact, these regulations were very different. The D.C. Circuit said there's no statutory mandate of identity and that the -- and, of course, Respondent was there in the D.C. Circuit. It was permitted to assert a challenge to this divergence, as the court called it, between NSPS regulations and PSD. And the court said --
05-848 +++$+++ 46730 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If the regulations are ambiguous, then the agency can interpret them in different ways and can change its interpretation over time. Of course, what your friend argues happened here is that the agency changed its interpretation in the context of an enforcement program. Now accepting that premise, what is the -- what should Duke have done when that interpretation was changed in an enforcement program?
05-848 +++$+++ 46731 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Accepting that premise, they Official could have sought an applicability determination. Duke knew very well what EPA's interpretation was because of the WEPCO decision. EPA had been -- and subsequent actions. In fact, Duke's attorneys were vociferously charging that EPA changed the rules and was acting ultra vires.
05-848 +++$+++ 46732 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Donahue, were there earlier enforcement actions in which EPA was taking the position that it took in this action against Duke?
05-848 +++$+++ 46733 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in the WEPCO decision -- I mean, EPA has always taken the position that actual annual emissions is the standard under the 1980 rules.
05-848 +++$+++ 46734 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But were they, in fact, enforcing that standard? So that -- you said that Duke could have asked for a non-applicability ruling, but at the time Duke started up its --
05-848 +++$+++ 46735 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly. I mean, WEPCO was an applicability determination. That was in 1989-90. Puerto Rican Cement was an applicability determination. Duke instead, knowing that EPA believed that increased utilization that is caused by physical change has to be considered under this, as is prescribed in these very detailed regulations, Duke decided not to do that, to go forward, and it didn't, in fact, come to the State or to EPA. Official Of course, the increased hours -- I understand the Court's concern about the Reich memos. But EPA's construction of the increased hours exception is completely correct under the plain language of the regulations. And in WEPCO the Court upheld. So that there was no question that not only was it consistent with the plain language, but whatever Reich had said, the express language of the regulations was as far as the exception went. There was no further confusion, if those early memos caused confusion. I'd like to reserve the balance of my time. Thank you.
05-848 +++$+++ 46736 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Donahue. Mr. Hungar.
05-848 +++$+++ 46738 +++$+++ FALSE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The court of appeals exceeded its jurisdiction and misconstrued the Clean Air Act in holding that EPA was required to define the term "modification" identically for the separate NSPS and PSD programs, and on the jurisdictional point I'd like to address the whipsaw question, because in fact it's quite Official clear that there's no whipsaw issue here for a number of reasons. It's true that there are those ambiguous and cursory 1981 statements from Mr. Reich, who was a subordinate official within EPA. In 1988, the administrator of EPA, the head of the agency, in the WEPCO decision, the applicability determination, made very clear what EPA's position is on the application of the hours of operation exclusion and the fact that this is an annual tons per year test. That's page 44 of the joint appendix. He made that perfectly clear and it has always been clear that that is, in fact, the EPA's official position beginning with the 1980 preamble. But again --
05-848 +++$+++ 46739 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Should a challenge to that have been brought in the D.C. Circuit at that time, or would you have argued that's too late?
05-848 +++$+++ 46740 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm not sure whether it could have been brought at that time. But the fact of the matter is a challenge was brought on this issue in -- to the 1980 regulations. True, Duke didn't assert it, but General Motors and the steel industry did assert in the 1981 brief they filed in that challenge to the 1980 rule --
05-848 +++$+++ 46741 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, presumably Duke could say, we looked at the Reich memorandum and we were following that and all of a sudden this new 1988 Official thing came up and they are surprised by that. Now you're saying it's already too late because somebody else challenged it in 1980?
05-848 +++$+++ 46742 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they might have that argument, Your Honor, except for the fact that the challenge to the 1980 rules was stayed and was not reopened until 2003. In 2003, Duke and other parties sought to reopen and were granted permission to reopen that challenge to the 1980 rules. They filed a statement of issues in 1984 and a brief in 1984 challenging the regulation on the ground that if EPA's interpretation was correct and that it did not require an increase in maximum total achievable emissions, as the NSPS did, test did, they argued that it was invalid. They raised the very incorporation theory that they advance here, that is the statutory argument that Congress was required to follow for the PSD regulations the same regulatory approach that the NSPS regulations had followed in 1977 with the hourly maximum achievable test. They made that very argument in their brief in the D.C. Circuit in 2004, the D.C. Circuit addressed and rejected that argument on the merits.
05-848 +++$+++ 46743 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ To be fair to them, that very same argument was more a product of the Fourth Official Circuit than of Duke. They had a somewhat different approach before the Fourth Circuit and then the Fourth Circuit came up with this insistence on the parallel construction.
05-848 +++$+++ 46744 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Well, I think it's important to distinguish. There are two statutory arguments here. One is what I would call the incorporation theory. That is the argument that Congress by borrowing the definition, the statutory definition, also necessarily borrowed and mandated adoption of the regulatory definition from the NSPS program. That argument, the incorporation argument, was made by Duke in its brief in 2004 in the D.C. Circuit. The D.C. Circuit addressed and rejected that argument at pages 17 through 19 of its decision in its 2005 New York decision.
05-848 +++$+++ 46745 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why was that rejection wrong? Because this issue is still important to me for purposes of statutory construction. Is it conceivable that when Congress says the word widget in this statute has to mean the same as the word widget in the other statute, that the agency can effectively frustrate the apparent Congressional intent by saying, oh, yes, I mean, yes, that has to mean the same thing, but we can adopt regulations under one statute which regulations Official say it means one thing, and we can adopt regulations under another statute that says it means something else. I mean, to say that they have to mean the same thing it seems to me means that the regulations have to say they mean the same thing.
05-848 +++$+++ 46746 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, it is a fundamental principle of administrative law and deference to agency decisionmaking that when Congress adopts an ambiguous statutory phrase and charges the agency with implementing that phrase the agency has discretion, has a delegation of rulemaking authority and policymaking authority to choose from among the various permissible interpretations.
05-848 +++$+++ 46747 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course it does, but when Congress says the definition in the two statutes has to be the same, whatever choice the agency makes among those options has to be applied to both, it seems to me.
05-848 +++$+++ 46748 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, because Congress has not mandated, as it could have done, that the choice of the specific interpretation from among the permissible options must be identical across both programs.
05-848 +++$+++ 46749 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, then it's meaningless to say the definition has to be the same.
05-848 +++$+++ 46750 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. Official
05-848 +++$+++ 46751 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Entirely meaningless.
05-848 +++$+++ 46752 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The statutory definition is ambiguous, but within the limits of the ambiguity it imposes constraints on the discretion of the agency. The agency must choose from among the options that are permissible given the range of language that Congress used. But within that range the agency has discretion. Think of it this way, Your Honor. If there were no PSD program, if we were talking only about the NSPS program, Congress gave an ambiguous definition to the agency the agency would have discretion to adopt different tests for determining whether emissions increased for different types of equipment even within that single program, because the statutory definition is ambiguous. The statute therefore does not mandate a one size fits all approach and the agency in its discretion could well determine that one emissions test is appropriate for some types of equipment, another emissions test is appropriate for other types of equipment, as long as both of those tests are within the permissible bounds of the statutory ambiguity. The agency is entitled to do that.
05-848 +++$+++ 46753 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the ambiguity is the word "increase," which could mean different things?
05-848 +++$+++ 46754 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. Official
05-848 +++$+++ 46755 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The Government as I understand it now has a proposed regulation that would align the standards with the two programs. It would bring the nonproliferation -- it would bring the standard for the nonproliferation program in line with the new source performance standard.
05-848 +++$+++ 46756 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, with respect to certain types of units, electric generating units like those at issue in this case, that's correct. They would not be identical under the proposal, but would be similar.
05-848 +++$+++ 46757 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, since the government is now taking the position that another Duke could do just what was done here and there's an enforcement action pending, would you, if you prevailed in that enforcement action, nonetheless enforce, though it's those against the current government policy?
05-848 +++$+++ 46758 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the 2005 proposal that you're referring to is only a proposal, a notice of proposed rulemaking. It has not been adopted. So the rules as they exist today are the same as the ones we're talking about, although there was a modification in 2002. But in any event, what we're talking about here is conduct that occurred from 1988 through 2000 with respect to -- Official
05-848 +++$+++ 46759 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what exactly are you seeking in these enforcement proceedings? An injunction to install the BACT or criminal fines or civil fine, or what?
05-848 +++$+++ 46760 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is civil enforcement proceedings, Your Honor. There are various remedies, injunctive relief and civil penalties where appropriate, yes.
05-848 +++$+++ 46761 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you have an enforcement proceeding and there is a legitimate question of whether or not the agency's interpretation is consistent with the statute with Chevron deference and so forth and the court looks at it and says, you know, I have a real problem with the way the agency interpreted the basic statute when it first issued the regulation, the court can't get into that merely because the parties didn't present it earlier?
05-848 +++$+++ 46762 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
05-848 +++$+++ 46763 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The court's almost issuing an advisory opinion in a way.
05-848 +++$+++ 46764 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. It's not an advisory opinion. The court is simply precluded from considering a challenge that would invalidate the regulation because that is the determination Congress made in requiring pre-enforcement review to avoid the Official problem of inconsistent determinations and circuit conflicts and 700 district judges potentially construing the statute in different ways and tying EPA's hands. The Congress made that determination.
05-848 +++$+++ 46765 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are there other areas in the law where courts have to take as binding a legal proposition that they think is dead wrong when they --
05-848 +++$+++ 46766 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's quite common. It's quite common, Your Honor, in any regime where review of an agency decision is relegated to the exclusive jurisdiction of one court, as it is here, and enforcement proceedings are brought in a different court. Hobbs Act agencies, their decisions are reviewable in the court of appeals but often enforceable in the district courts. The district court cannot look behind the determination of the agency to challenge its validity because that rests in the exclusive jurisdiction of the court of appeals. Obviously there's a timing issue in this statute as well because of the requirement of pre-enforcement review. Whatever -- whatever concerns might be raised in a situation where a party could not reasonably have been expected to challenge it at the time it was originally promulgated are addressed by the after-arising provision in section 307(b)(1) which permits challenges that could not have been made within Official the 60-day period to be brought later in appropriate circumstances. And in any event, if there were some concerns at the outer limits of a provision like this one, they have nothing to do with this case where Duke's challenge, actual challenge to the agency decision, the 1980 rule, it was heard in 2005. And so Duke had more opportunity than you could possibly ask for to understand exactly what EPA's position was, understand exactly what the regulation meant and to challenge it in the D.C. Circuit. It did so and it can't do it here.
05-848 +++$+++ 46767 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Hungar, I'm curious. What happens if you have a new company that wasn't around when the regulation was issued? Can it -- can it bring a challenge to the conformity of the regulation to the statute?
05-848 +++$+++ 46768 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that's an unresolved question. Presumably, the argument --
05-848 +++$+++ 46769 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, a nice question. I mean, all you have to do is find a stalking horse. Just have some new company carry your water for you.
05-848 +++$+++ 46770 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, presumably the argument would be that the creation of the company and the first applicability of the regulations to it is an after-arising ground. I don't know the answer to that Official question, but certainly it's not presented here.
05-848 +++$+++ 46771 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could it bring it up by a declaration of non-applicability? Could the new company -- how would it --
05-848 +++$+++ 46772 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it could seek a determination of non-applicability, but -- and it could obtain judicial review of that determination. But that would not go to the D.C. Circuit and would not permit a challenge to the regulations. But they could find a petition, they clearly could find a petition for rulemaking with the EPA, saying your regulation is invalid, it's been around for 25 years, but it's still invalid, you need to rescind it, and when the agency declined to do that they could then go to the D.C. Circuit.
05-848 +++$+++ 46773 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In the midst of the enforcement action that's being brought against them by EPA? What's supposed to happen in the enforcement action, if that's the vehicle through which EPA is implementing its new interpretation --
05-848 +++$+++ 46774 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If this completely speculative and hypothetical situation were ever to arise, a court might well exercise its equitable discretion to stay proceedings pending review in the D.C. Circuit.
05-848 +++$+++ 46775 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can I ask you about an argument I think they did make? I think they made this Official argument. On page 26 of your brief, I think it's explained well. You set out the regs and the reg says that a major modification is "any physical change in the method of operation that would lead to a significant net emissions increase." Then you have little (iii), which is an exception, and it excepts a physical change which leads to -- is just an increase in the hours of operation or the production rate. So that's out of it. Now, the question is what's in it? If that's out of it, what's in it? I think what they've said is, if you think about that, we'll tell you what must be out of it is a physical change that does nothing to increase the capacity, but just means you can run it more hours. And they say their proof of that is that that was the EPA's interpretation for years and years and years. Indeed, we did what we did thinking that was it. And then after we did what we did, they pulled the rug out from under us and said no, that isn't it; now it means any physical change, like you change a nut, or a bolt, or a tube, even though there's no increased capacity to emit more. It's just you run it more hours. Now, that they say is basically unfair, it's not what this reg has been about. And they made that argument, according to them, very strongly and the Official Fourth Circuit took the argument and changed it all around and made some propositions of law that it's hard for even them to defend. All right. Now, that's what I think, that's what I think is lying -- maybe that's lying at the heart of it. And if it is, what do you say?
05-848 +++$+++ 46776 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are several things, Your Honor. First of all the language of the regulation simply does not support that interpretation. What the regulation says is that hours of -- a change in hours of operation is not a physical change. Fine. But we have a physical change here. It is undisputed that Duke made physical changes to its facilities, major modifications, sort of using that term in the non-regulatory sense, but substantial replacements of physical equipment at the facilities. So physical change has occurred. The hours of operation exclusion, therefore, has no longer any relevance because it applies only at the physical change step of the analysis. There has been a physical change here regardless of whether hours of operation changed or not. Therefore, the hours of operation exclusion no longer applies. The next question is whether the -- if the physical change that did occur resulted in a significant net emissions increase. Here it did under the plain Official language of the regulations and under the test that EPA applies. It is true that 1981 they were arguably mistaken to the extent one can discern what the, Mr. Reich was actually saying, they seem to be simply a mistake in interpretation. But in 1988, the administrator of the agency, the head of the agency, made very clear EPA's position, the very same position it is taking here today on the hours of operation exclusion. The First Circuit in the Puerto Rican Cement case, as Your Honor knows, upheld that interpretation in 1989. The Seventh Circuit in footnote 11 in the WEPCO decision upheld that determination in 1990. It was restated by the EPA again and again and it is well established. Thank you, Your Honor.
05-848 +++$+++ 46777 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Hungar. Mr. Phillips.
05-848 +++$+++ 46779 +++$+++ FALSE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you Mr. Chief Justice, and may it please the Court: I think I am inclined instead of starting with the jurisdictional issue to focus initially on the regulatory history immediately in the wake of the 1980 Official rules. Because it seems to me it is very clear that the understanding of everyone in the industry, outside the industry, from 1980, candidly well beyond 1988 all the way up until 1999, was that these regulations didn't apply under any circumstances in the absence of an increase in the capacity. And you had to demonstrate that there would be an increase in the hourly rate of the emissions.
05-848 +++$+++ 46780 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then why were some companies asking for declarations of nonapplicability?
05-848 +++$+++ 46781 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To confirm precisely that interpretation. That's exactly why GE went to Mr. Reich and asked for a determination of applicability, and was told categorically PSD applicability is determined by evaluating any change in emissions rates caused by the conversion.
05-848 +++$+++ 46782 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But Mr. Donahue said that there were nonapplicability applications after those early ones that came out the other way. So there were companies --
05-848 +++$+++ 46783 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Well --
05-848 +++$+++ 46784 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- who asked for a declaration of nonapplication and then EPA took the position that it is currently taking.
05-848 +++$+++ 46785 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As I heard Mr. Donahue, he Official was talking about WEPCO. Understand the context of WEPCO. WEPCO was a situation where every one of the changes was a modification within the meaning of NSPS. And then the question is were they also modification -- major modifications within the -- within the meaning of the PSD. And that's what they analyzed. So it didn't say anything about the argument we've been making which is what is a modification. The only statements that I know of that are out there are the two Reich statements which I just quoted to you, says exactly our interpretation. But even more powerful at least in my view is the quotation from the amicus brief from the State of Alabama and the 12 States that relied on the Region 4 statement and that's on pages 7 and 8 of that amicus brief and the answer, the question is -- you know -- how do you determine what is a modification? You know does something that doesn't increase the hours, the emissions per hour, constitute it? It says no. Since the modification does not cause any increase in the hourly particulate emissions, no increase in annual emissions should be calculated. They could not have said that any more clearly than --
05-848 +++$+++ 46786 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Who was saying that?
05-848 +++$+++ 46787 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is the -- it is the chief of the air and waste management division, James Official Wolburn, giving guidance to Region 4. Region 4 is not only Alabama, it is also North Carolina and South Carolina. And then, in the wake of this, right? 1982, North Carolina and South Carolina submit their SIPs and in their SIPs, certainly the South Carolina SIP expressly incorporates the concept of modification. North Carolina a little less expressly incorporates the entirety of the regulatory scheme under title 50 -- under part 51 of the Code of Federal Regulations.
05-848 +++$+++ 46788 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It looks like -- I went back and read the Puerto Rico cement case. And it certainly looks as if -- though the issue was somewhat different. It looks as if the interpretation that the EPA is taking there is not consistent with what you are reading now and is consistent with what they're saying today. And that was in 1988-89, I guess. They must have been starting on that in '87. So it seemed to me we have a mixed bag. Some people were saying the one thing. Some people were saying the other thing. And the later in time seems to be the Puerto Rico cement. And that was at least 17 years ago. And --
05-848 +++$+++ 46789 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Breyer, I think Puerto Rico cement is a somewhat complicated problem. Because what you are dealing with there is the elimination of two existing units, the two kilns, and a Official replacement with a brand-new unit, which would have been a modification under any -- I think under anybody's theory, because there would have been an increase in the hourly emissions anyway. So it would have been a NSPS subject to the PSD. It didn't get analyzed that way but the truth is it would have been fully -- the way that decision came out would have been exactly consistent with the way that they analyzed it.
05-848 +++$+++ 46790 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The analysis which was probably pretty much based on what they said, I think was that the reason there was increased potential here to pollute, was really because this change would permit the plant to be run more intensively or more hours, something like that.
05-848 +++$+++ 46791 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that was based on the question of involving you know, normal operations or non-normal operations. The Court really didn't have to address -- and I don't think did address the question of how do you relate --
05-848 +++$+++ 46792 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, we didn't address it. I'm not taking it as evidence of that. I'm taking it as evidence that the EPA then had a basic position similar to what they have now. That's what I'm using it as a basis for thinking that they were not saying to have a change, the Official word "change" includes only a change in physical facilities that increases the amount of emission per hour. Am I right? Or --
05-848 +++$+++ 46793 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think they were really arguing that particular point. I mean, that's not the way I would have read the argument that EPA was making. But, and the bottom line is they didn't address this issue in WEPCO. To the extent they came close to addressing this issue in WEPCO they lost it in the Seventh Circuit because WEPCO adopted an interpretation that's much closer to what we are asking for. The answer given on the other side at this point, that we should have -- we should have sought a determination. Well, the problem with that, of course, is every one of these projects was being inspected. The record is replete with examples from North Carolina and South Carolina and EPA inspectors on site looking at every one of these projects.
05-848 +++$+++ 46794 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So then they'll say your argument here, even if you are right, I think they think you're wrong -- but even if you're right, they'll say well, that's an argument that it is arbitrary, capricious abuse of discretion for them to change horses in the middle of the stream, i.e., for them to take an interpretation of a reg that was longstanding and without Official adequate notice and comment and so forth radically reverse that interpretation. Now that's not the issue in front of us now.
05-848 +++$+++ 46795 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that is the issue in front of you, I believe.
05-848 +++$+++ 46796 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because?
05-848 +++$+++ 46797 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because --
05-848 +++$+++ 46798 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They say because the Fourth Circuit didn't go really on that, it went on some statutory thing, and --
05-848 +++$+++ 46799 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To be sure, but that's the opinion. That's not the judgment. The judgment of the court of appeals is that this enforcement --
05-848 +++$+++ 46800 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask a question, Mr. Phillips? Focusing on this question in the amicus brief which the EPA representative answered no. Supposing the EPA had answered yes at that time. Would that have been a permissible answer within the meaning of the statute?
05-848 +++$+++ 46801 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If -- I'm not sure I understood the predicate of the question, Justice Stevens. Which question are you asking?
05-848 +++$+++ 46802 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You know -- what's that, page 7 and 8 of the -- of a source to modified have to have a significant increase in the SO2 elements. Official
05-848 +++$+++ 46803 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, I see.
05-848 +++$+++ 46804 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And they answered no. You say they were right.
05-848 +++$+++ 46805 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
05-848 +++$+++ 46806 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm just asking -- want to know, under the statute, could they have answered yes and would that have been a permissible answer?
05-848 +++$+++ 46807 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, our position would be no. That would have been an -- inappropriate under the rationale of Justice Scalia.
05-848 +++$+++ 46808 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you're not basically relying on the fact that you were misled, you're basically relying on the fact that they have interpreted the statute incorrectly.
05-848 +++$+++ 46809 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, actually we're making both arguments. Our basic argument is that all along, they have interpreted it in a certain way. And then 19 years later, they reversed course. And that is arbitrary and capricious, Justice Breyer, and it is a basis on which to defend the judgment of the court of appeals.
05-848 +++$+++ 46810 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, is what the government is saying here is that suppose the regulation can be interpreted to say X or Y. X would hurt the company; Y would not. Is the government saying, if it is Official foreseeable that the agency might take the unfavorable position, you then must challenge it in the D.C. Circuit?
05-848 +++$+++ 46811 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's exactly what they have to be arguing. And it seems to me that that cannot be what 307(b)(1) means. Justice Kennedy, you asked a great question. Should we have raised this in 1980, 1992, 2000? When were we supposed to bring this up? And the truth is in 1980 we interpreted this statute, the regulation, exactly the same way EPA did. It would have been silly for us to raise that. It is true that this issue comes up 25 years later in a bizarre proceeding. But that's not what 307(b)(2) is all about. It says you are precluded from making a challenge in an enforcement action if the action of the administrator was subject to challenge. Well, the action of the administrator was not subject to challenge in 1980. And when we did have the subsequent rulemaking --
05-848 +++$+++ 46812 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Just a pause, under your view or the Fourth Circuit's view? If you read Judge Tatel's opinion in New York versus EPA, he suggests -- suggests, he says that EPA adopted different interpretations of modification from the outset. And so if what you are saying couldn't have been challenged, Official was the Fourth Circuit's view, that may not be accurate. But if you are saying what couldn't have been anticipated was the argument you actually made to the Fourth Circuit, that might be a different story.
05-848 +++$+++ 46813 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Well, I think that, that is precisely what we are saying. But you know, Judge Tatel, with all due respect to him, is dead wrong. Because the interpretation of modification under NSPS and under the regulatory PSD was identical. The regulations couldn't be any clearer in that regard because if you look at 15a of our appendix, you know, the modification, this is the NSPS definition -- I'm sorry, better go back a page. 17a. 60.14 modification defines emission rate and the emission rate is expressed as kilogram per hour. So that is absolutely clear that that is the NSPS -- Dobbs modification.
05-848 +++$+++ 46814 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's the NSPS section.
05-848 +++$+++ 46815 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's the NSPS section. Then you go two pages earlier to 15a and you have the PSD regulatory definition, and it comes right back to emission rate, or the regulatory history that says the emission rate as used in this provides is identical --
05-848 +++$+++ 46816 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They say that that provision only applies when there is no SIP. And that's Official not this case.
05-848 +++$+++ 46817 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in the first place it would apply in at least South Carolina immediately because there is a SIP that incorporates exactly the same language. And second of all, the notion that this regulation is inoperative on one side and fully operative on the other side make no sense. It makes much more sense to recognize that modification is the trigger for construction which is in part 51(2) and that that incorporates this entire modification language.
05-848 +++$+++ 46818 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't understand that. It seems to me each part has had different definitions and this definition only applies to part 52 which applies when there is no SIP.
05-848 +++$+++ 46819 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
05-848 +++$+++ 46820 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't know how you can say it automatically applies when there is a SIP.
05-848 +++$+++ 46821 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The way that would apply --
05-848 +++$+++ 46822 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Part 51, in other words.
05-848 +++$+++ 46823 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. Go back to then -- you have to go back to 12(a), I think it is where we talk about the interpretation and we get to construction. This is (b)(8), construction means a modification, okay, of an emissions unit. So that -- and modification, if it is undefined in title 51, right? According to 15.100, Official means whatever it means under the statute. So that just takes you back to the statute. And this is the interpretation under the statute. The 52 interpretation is also an interpretation under the statute. So it is completely circular and brings you right back to the same definition. I agree by its terms it doesn't apply to 51. But going through the definitional provision in part 51 through the definition of the trigger for construction, which is modification, it takes you right back to the same meaning of the same provisions. So there is no difference between the two. And to me, it is really critical. And it seems to me there are sort of two points to make here. One is nobody on the Petitioner's side of this case answers the State -- the dozen States who say we relied upon you when we adopted these SIPs. We realized that you are asking us to take on enormous burdens. And you should have told us that before we went down this path in the first place.
05-848 +++$+++ 46824 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Phillips, before you get away from this section 52, because I think that is the best section for your case, 52.01(d), is there, is there any sensible reason why you would want to have a different definition of modification for non-SIP Official situations than you would for SIP situations?
05-848 +++$+++ 46825 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Absolutely not. I mean, you would -- you -- there is no rational --
05-848 +++$+++ 46826 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That occurred to me when --
05-848 +++$+++ 46827 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I have not heard the other side make an argument that there is a rational distinction between the two. And the truth is if EPA wanted to achieve what it thought it was achieving, that is to eliminate the concept of modification, what it should have done is two things. It should have -- it should have deleted 52.01. And it should have adopted the proposed regulation that it didn't adopt from the 1979 regs. This is on page 9 of their brief. This statement is astonishing to me. "The term major modification serves as the definition of modification or modified when used in the act in reference to a major stationary source." If they had adopted that regulation in 1980, I wouldn't had to litigate this issue 25 years later. We would have litigated this question in 1980 because then we would have said that's flatly inconsistent with the statutory scheme because you're not entitled.
05-848 +++$+++ 46828 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're quoting page 9?
05-848 +++$+++ 46829 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Page 9 of their reply brief.
05-848 +++$+++ 46830 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, in their reply brief? Official
05-848 +++$+++ 46831 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The SG's reply brief, I apologize. The gray brief. Where they seek to get some support for the idea that modification was dropped out of this analysis. But the truth is, that was a proposed rule that would have done exactly what they say that the 1980 rule did without adopting that particular regulation.
05-848 +++$+++ 46832 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Phillips, can I ask another sort of basic question? In your view, would it be permissible for the agency to interpret the word -- to adopt a regulatory interpretation of the -- in the PSD regulations of the word "modification" that was different from the definition it used under the new source regulations?
05-848 +++$+++ 46833 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Substantively different?
05-848 +++$+++ 46834 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Substantively different.
05-848 +++$+++ 46835 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I think that would be impermissible
05-848 +++$+++ 46836 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You think the statute required the regulation to be identical?
05-848 +++$+++ 46837 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I don't understand how it's possible that Congress says in the statute that you take the NSPS trigger -- remember, this is not just some random definition we're talking about. Construction is the trigger for this part of this entire regulatory scheme, and modification is the trigger, and say it is Official as defined in, and they did it twice.
05-848 +++$+++ 46838 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your answer is no?
05-848 +++$+++ 46839 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My answer is no. (Laughter.).
05-848 +++$+++ 46840 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I thought I said that first.
05-848 +++$+++ 46841 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's definitely no. (Laughter.)
05-848 +++$+++ 46842 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's a no with some emphasis.
05-848 +++$+++ 46843 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would it have been permissible for the agency to adopt one definition for 10 years and then change the definition to the other definition for all programs?
05-848 +++$+++ 46844 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For all of it?
05-848 +++$+++ 46845 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-848 +++$+++ 46846 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I think there is plenty of room within that --
05-848 +++$+++ 46847 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So either definition could comply with the statute?
05-848 +++$+++ 46848 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I think as long as you maintain consistency between the two, there is a fair amount of discretion for --
05-848 +++$+++ 46849 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The obvious reason to do it is, I guess you have an area of the country, let's say, which is quite clean in the air. And there is a power Official plant. And what somebody works out, which is normal, is demand for electricity is increasing. And so what we will do is we're going to take these turbines and system, and we're going to change it really radically. It doesn't produce one more particle per hour, but now we can run it 24 hours a day and previously we'd run it 12 hours a day. So there's going to be twice as much pollution in the air. Now the whole idea of the PSD system is you don't have twice as much pollution in the air, and I guess that's why they wanted to do it.
05-848 +++$+++ 46850 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the premise of that is, the real question is, if Congress had meant that, why would Congress have adopted the same word, modification, as the construction trigger that existed in NSPS?
05-848 +++$+++ 46851 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because you can use the same word, you can apply the same word in different places differently, depending on what your basic object is in the different place. It's very hard to say what kind of modification might exist over here, there, the other place. And you put your finger on a very difficult question for power companies, because those turbines do go at different amounts of rates and so forth during a day, during a month, during a year, so it's hard for them. Therefore, you have a complex Official definition. What's wrong with that?
05-848 +++$+++ 46852 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because by the time the statute came up for review by Congress, and the PSD program, the new source review, there was already a very extensive regulatory history about the meaning of the term "modification."
05-848 +++$+++ 46853 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I think what's wrong with it is that you could have achieved that same result by simply not saying that modification in one program has to mean the same as modification in the other. If you didn't say that, that would be the result. You give modification whatever meaning you think is reasonable here. You give it whatever reading you think is reasonable in the other place. But when you say the two have to be the same, it seems to me you have something else in mind.
05-848 +++$+++ 46854 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And it also seems to me, Justice Breyer, it clearly creates an obligation on the part of EPA to be very explicit if it's, in fact, going to do what you say it's going to do. You don't go about saying I am going to define modification in one statute fundamentally different from the way I define modification in another statute without discussing the word modification. Official And to put this in context, you'll remember, these regulations were adopted in the wake of the Alabama Power decision. Alabama Power didn't deal with the issue of modification. That wasn't before the court. Nobody had challenged modification's definition. The hourly emissions rate was a perfectly valid one. What the court in Alabama Power said is, you can't use this threshold for major modification. And then the case -- so then the matter comes back, and if EPA immediately adopts a new set of regulations that deal what, with what? Major modification, not with modification. And then they go through this entire elaborate analysis of major modification, none of which, candidly, do we challenge. We have no quarrel with their interpretation of the concept of major modification. If anybody does, my guess is the State environmental groups would.
05-848 +++$+++ 46855 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They make a kind of interesting argument, major modification is not a subset of modification.
05-848 +++$+++ 46856 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yeah. And if the Solicitor, and if EPA had enacted the regulation that they proposed but didn't enact, that says major modification means modification, then we might have an argument there. But the concept that when you have modification as a core Official baseline construction -- I mean trigger for the applicability of this portion of the scheme, and then you take that same -- and you not only do it once but you do it twice, and you do it in the context of an entire regulatory scheme that was designed to implement this statutorily -- or implement this before the statute was enacted, and you have Congress saying well, you didn't get that right, but you did get this right, and they leave this language exactly in the way it is, the only fair inference you can draw from that, it seems to me --
05-848 +++$+++ 46857 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why? Because the language, I don't see anywhere in the statute where -- the words of modification are, it's a physical changing or change in a method of operation which increases the amount of any air pollutant. Now those words, "physical change which increases the amount of any air pollutant," could mean different things in different places.
05-848 +++$+++ 46858 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure.
05-848 +++$+++ 46859 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where does it say in the statute that they can't?
05-848 +++$+++ 46860 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Where it says in the statute is where it makes this specific cross-reference, because if all they wanted to do was get that definition, all they had to do was use the word modification. They Official didn't have to use modification as defined --
05-848 +++$+++ 46861 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Phillips, I want to be sure I understand your position. Are you saying the statutory text in effect says every regulation using the word modification must employ the same definition, or are you relying on a general principle that when the same word is used it should be used in the same way?
05-848 +++$+++ 46862 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's a general principle that --
05-848 +++$+++ 46863 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So there's nothing in the statute itself that says that principle shall apply to this case?
05-848 +++$+++ 46864 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but the general principle is that if the same language is used in two different portions, you presume they have the same meaning. When you go beyond that -- because otherwise, their interpretation rendered superfluous the specific cross-references to as defined in and as used in; and while I know some don't like the legislative history, the legislative history is quite clear that they had in mind, and regulatory history as well --
05-848 +++$+++ 46865 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your answer is you are not relying simply on the general principle. It is not just that they used the word modification in one place and the word modification in the other. It's that Official in the latter place, they said modification as defined in the first place.
05-848 +++$+++ 46866 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It depends on which general principle, I suppose you're talking about. I'm not relying on the mere presumption. I think this is much stronger than the mere presumption.
05-848 +++$+++ 46867 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But your reference of modification as defined elsewhere merely defines the scope of the statutory meaning. That's not the same as saying every regulation that is a modification must be the same no matter what the program.
05-848 +++$+++ 46868 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think if you read it in context, when you recognize that what Congress was doing is adopting a statutory scheme that overlays on a regulatory scheme that was well established with very specific meanings, and where Congress quite clearly picked and chose -- I think that's the way to say it -- from the regulatory scheme, and said we'll take these and not take those, and has a provision at the end -- 168 says, all the regulations remain in effect until they get changed at some point, suggesting --
05-848 +++$+++ 46869 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me just be sure I understand the point. If instead of saying as defined in X, the second statute had merely quoted the same words that were in X, would your argument be the same? Official
05-848 +++$+++ 46870 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. It would not be nearly as strong as it is. We would still have a presumption --
05-848 +++$+++ 46871 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you're saying that if you used the definition as defined in another statute, that implicitly says all regulations defining this term must be identical.
05-848 +++$+++ 46872 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know if I have to go quite that far because I have more evidence than that in this particular case, because I have the fact that they say as used in, which suggests that it's more than just a definitional point. We do have a legislative history that seems to have in mind this regulatory background; and we've been told by EPA that when Congress incorporated modification, it really did incorporate that luggage, baggage as well.
05-848 +++$+++ 46873 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is very helpful to me, because the government has accused you of abandoning the court of appeals approach to the case, and I think you're endorsing the court of appeals.
05-848 +++$+++ 46874 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do endorse it. The only question I have -- I mean, I don't think that it necessarily has to be -- that every word has to be identical in the two provisions, but I do think they have to be congruent. And so, that's the strong version Official of our argument, and that's pretty close to where the Fourth Circuit was. The weaker version of our argument, which gets I think some mileage on the arbitrary and capricious part of the argument, is at a minimum, if Congress adopts as the trigger point the same word in two statutes, and EPA then purports to be implementing that statute, it has some obligation to explain how it is that they're doing a 180 with respect to the term modification. And the reason --
05-848 +++$+++ 46875 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's not just a matter of using the same word.
05-848 +++$+++ 46876 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. You're right.
05-848 +++$+++ 46877 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's a matter of a statute which says it shall have the same meaning.
05-848 +++$+++ 46878 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. They owe us some responsibility to explain, how do you not follow that course.
05-848 +++$+++ 46879 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, could they have said that construction means both modification and then come up with a new word, alteration? Because the statute says the term construction includes modification, so I -- construction can be broader. Could it be an alteration, they would come up with a new term of art, and add that -- Official
05-848 +++$+++ 46880 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely.
05-848 +++$+++ 46881 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- to the PSD?
05-848 +++$+++ 46882 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Could they have gotten away with that? I mean, that would have been a much stronger argument. It seems to me the better argument, and -- but see, the point here is if they had done that, or if they had done what they proposed in 1979, which is just to simply redefine major modification to be modification, then we would have taken that issue directly to the D.C. Circuit at that point in time.
05-848 +++$+++ 46883 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you do have a brief here. You have a brief filed in the D.C. Circuit, which is Brief For Industry Petitioners on Actual Emissions Definition.
05-848 +++$+++ 46884 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-848 +++$+++ 46885 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And throughout that brief it refers again and again to the problem, their proposed reg is not taking, i.e., the potential capacity, which is change the machine so it puts out more per minute or whatever, but rather, it's using actual emissions even though you don't change the capacity of the machine. There's a whole brief on that. So you already argued that whole brief, that what they were doing was inconsistent with the statute, et cetera.
05-848 +++$+++ 46886 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The other side has not argued Official collateral estoppel, if that's the argument you're trying to make, Justice Breyer.
05-848 +++$+++ 46887 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. As being outside the statute at that time, and you did.
05-848 +++$+++ 46888 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you have to put that into context. We're talking about a matter that was closed for 25 years and then was reopened. And this argument -- and it is true, a variant of this argument was made. I don't think it's the full argument that we've made before this Court. And it was rejected by the D.C. Circuit. But if you're arguing that as a 307(b) argument, my answer to that is this is still not action by the administrator that would trigger a 307(b) bar. If you're asking about collateral estoppel, my argument is --
05-848 +++$+++ 46889 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. I was just thinking, then you're left with what you called the weak argument, arbitrary, capricious, et cetera, because I don't see how you make the stronger one, what you think is stronger, since you made it before, or a version of it before the D.C. Circuit.
05-848 +++$+++ 46890 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again, if you are arguing that as a matter of collateral estoppel, then --
05-848 +++$+++ 46891 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, not collateral estoppel, but you know, I'd be repeating myself. Official
05-848 +++$+++ 46892 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But if it's not collateral estoppel and it's not 307(b)(2), then --
05-848 +++$+++ 46893 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's what it is.
05-848 +++$+++ 46894 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So you are doing it as -- see, I don't think it -- I think if you read 307(b)(2)'s language, it talks about action of the administrator, and what action of the administrator are we, in fact, challenging here? Nothing. Because in our view, the 1980 regulation quite clearly says what we want it to say. The only thing that's changed is that the preambles have interpreted the 1980. We challenged that and the D.C. Circuit said no, we're not going to address that issue. That's an issue when you get back up, when you get back on your enforcement action. Then you can complain about that aspect of it. That issue is not ripe. And that is exactly what we are trying to argue in this case. And it's a variant of what I think --
05-848 +++$+++ 46895 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Phillips, can I go back for a second to the meaning in (a) includes the same meaning as in (b). Is it not correct under your view of the statute that that meaning can include either of the two definitions that the two regulations identify? So that either -- whether you start with (a) or the second statute, either statute includes both -- may include both alternative regulations? Official
05-848 +++$+++ 46896 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As long as they are consistent?
05-848 +++$+++ 46897 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-848 +++$+++ 46898 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. That is my position, Justice Stevens.
05-848 +++$+++ 46899 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could you explain to me again why this isn't a 307(b) problem? You said this is an action by the administrator?
05-848 +++$+++ 46900 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. Because there is no action of the administrator that we would challenge. The only action of the administrator was the 1980 regulation, which we interpret as not changing modification. If you read 52.01(d), it clearly retains modification. We have no quarrel, then, with what the administrator did in 1980. Then they adopt preambles to the subsequent regs. We do challenge those, but the D.C. Circuit said we're not entitled to do that, that's got to wait for an enforcement action. The only thing that's left out there is this sort of inchoate interpretation by the administrator. But there's no final action by the administrator for us to challenge. Then the only question would be, do we have some obligation --
05-848 +++$+++ 46901 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You can't challenge in the D.C. Circuit the administrator's interpretation Official that led to the enforcement action?
05-848 +++$+++ 46902 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know how that's a final action. The filing of a complaint, as this Court held in Harrison, is not a final action. So that doesn't trigger it, and I don't know what else is out there for us to serve as a hook. I would think at a minimum the Court would want to be very, very loathe to jump on a expansive interpretation of 307(b) where it operates in a context like this as a pure gotcha. You adopt regulations that nobody has a quarrel with, you change the regulation afterwards and then you come back and you say you can't challenge it at this point. That just cannot be a sensible interpretation of that statute. If there are no further questions, I would ask the Court to affirm the Fourth Circuit. Thank you.
05-848 +++$+++ 46903 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Phillips. Mr. Donahue, you have 3 minutes remaining.
05-848 +++$+++ 46905 +++$+++ FALSE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. You just can't read the 1980 regulations to achieve the result Duke is seeking here. There is no hourly rate in there, and it's important to note that these provisions that they now state misled them into Official their non-challenge, they didn't even cite to the Fourth Circuit or the district court, and on their face, they're not -- it's not plausible that these provisions, which are totally nonspecific, were intended to vary the very detailed and specific instructions on how to measure an emissions increase laid out. And the preamble --
05-848 +++$+++ 46906 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, the one in part 52 surely does. You have to give them that.
05-848 +++$+++ 46907 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't give them that.
05-848 +++$+++ 46908 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You don't give them that.
05-848 +++$+++ 46909 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because it says rate, and the 1980 PSC regulations say that the relevant rate is tons per year. They use the word "rate" pervasively. I would also say the preamble to the rule makes conclusively clear that "major modification" is EPA's definition of the statutory term. This idea that EPA, it's completely inconsistent with not only --
05-848 +++$+++ 46910 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Major -- when you say the statutory term, you mean "modification"?
05-848 +++$+++ 46911 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
05-848 +++$+++ 46912 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So then why weren't those proposed regulations saying just that, adopted?
05-848 +++$+++ 46913 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know the answer to that, but it's absolutely clear. EPA has never said Official otherwise. And of course the idea that an NSPS modification is required first, it would have been a big deal. There is no sign of it, and in fact there are specific examples. The example cited at page 23 of the government's opening brief in the preamble is a PSD major modification that would not be an NSPS --
05-848 +++$+++ 46914 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's a tough sell, isn't it? I mean, the idea is you propose regulations saying major modification means modification. Those regulations are not adopted, and then the industry is supposed to be on notice that that's still what you mean?
05-848 +++$+++ 46915 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that there's no other reading of what EPA meant from the regulations. No one was confused by this, Chief Justice Roberts. No one was confused. This argument, it's a new argument in this Court about how to read the rules, the 30 -- 52.01(d), 51.100, and 51.166(b)(8), all uncited below. It's really not plausible. The Court would have to abandon a lot of very basic principles of how to interpret legal texts to read the rules this way, and I think Judge Poisner was right on that. He was right to say this is the natural reading of the rules.
05-848 +++$+++ 46916 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where is "rate" defined? Official I'm still troubled by 52.01(b). Where is -- you say "rate" is defined. Where?
05-848 +++$+++ 46917 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ "Rate" is used as an annual rate in 51.166(b) (21) and (b)(23).
05-848 +++$+++ 46918 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's not defined. You say it's just used that way.
05-848 +++$+++ 46919 +++$+++ TRUE +++$+++ MR. DONAHUE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's the only -- it's tons per year consistently. The other thing I would point out, as the Court is aware, is that 307(b) applies it bars courts in enforcement actions, which includes this Court. This case is not up on cert from the D.C. Circuit in New York. Thank you very much.
05-848 +++$+++ 46920 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Donahue. The case is submitted.
05-85 +++$+++ 46924 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first this morning in case 05-85, Powerex Corporation versus Reliant Energy Services. Mr. Frederick.
05-85 +++$+++ 46926 +++$+++ FALSE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court. In 1988, the Government of British Columbia created Powerex to perform a variety of public functions including the marketing of surplus hydropower generated by development of the Province's natural resources pursuant to bilateral agreements with the United States. The Ninth Circuit, however, denied Powerex its rightful status as an organ of a foreign State entitled to remove this case from State court to Federal court. Before addressing the appellate jurisdiction issue, I'd like to highlight briefly the two key errors by the Ninth Circuit in rejecting Powerex's organ status. First, the court articulated the wrong test for determining an entity's status as an organ of a foreign State. The factors the Ninth Circuit found dispositive are inconsistent with the FSIA; and second, the court overlooked crucial evidence of Powerex's public functions that are the best indication of its sovereign status. The British Columbia Government receives and distributes the proceeds from Powerex's operations, supervises Powerex through BC Hydro, subjects Powerex to provincial laws not applicable to private companies and grants Powerex special benefits including exemption from taxation.
05-85 +++$+++ 46927 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Frederick, are you going to get to the 1447(d) problem?
05-85 +++$+++ 46928 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Let me address that now. The court's -- the district court's remand order was appealable because it was not issued under 1447(c).
05-85 +++$+++ 46929 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The district court thought it was and one we did, the district court said I have no authority in -- under -- over any of these people. So back it goes.
05-85 +++$+++ 46930 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The district court made two mutually exclusive statements, that remand was proper and that it lacked subject matter jurisdiction. Because of that inconsistency, the court of appeals --
05-85 +++$+++ 46931 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Removal. Removal was-
05-85 +++$+++ 46932 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- talking that -- where are these statements?
05-85 +++$+++ 46933 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You said remand was proper. That's the --
05-85 +++$+++ 46934 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sorry. That removal was proper under the sovereign removal provisions of 1441(d) and 1442(a). It also then said it lacked subject matter jurisdiction.
05-85 +++$+++ 46935 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But at the point it was acting it was remanding, and its basis for remanding was not that it thought the removal had been proper; the basis for its remanding was that it said it lacked jurisdiction over three of the other cross defendants.
05-85 +++$+++ 46936 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But immunity was the basis of the district court's thinking that it had to remand.
05-85 +++$+++ 46937 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It may have been, leaving aside the question of whether it was right or wrong, it may have been wrong. But what it thought it was doing it seems to me is fairly clearly remanding for a jurisdictional reason.
05-85 +++$+++ 46938 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And what this Court's cases say, Justice Souter, is that the remand has to be a ground cognizable under 1447(c).
05-85 +++$+++ 46939 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Those cases are all -- all based on Thermtron. You don't have any doubt that Thermtron would come out the other way today, do you?
05-85 +++$+++ 46940 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I certainly do --
05-85 +++$+++ 46941 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- in light of, in light of the statutory language as it exists now?
05-85 +++$+++ 46942 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, the Thermtron rule has been reaffirmed no less than four times by this Court, notwithstanding two statutory amendments. It has been reaffirmed and stare decisis on the basis of statute is the strongest form of stare decisis. So I do --
05-85 +++$+++ 46943 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But stare decisis on the basis of statute is kind of a weak basis when the statute's been changed.
05-85 +++$+++ 46944 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, the Thermtron rule was reaffirmed earlier this term in the Osborn case, has been reaffirmed in prior cases lead -- from the time it was decided even through statutory amendments. Our submission is that if Congress intended to change that rule, it could have done so clearly. And we note that the Respondents here don't ask for Thermtron to be overruled, and it is clear from the amicus on their side, that the only way you could rule in favor of the Respondents in this case would be to overrule Thermtron.
05-85 +++$+++ 46945 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But Thermtron was such a far cry from this case. In Thermtron the district judge said yes, I have jurisdiction but I'm just too busy, so I'm going to toss this case back to the State court.
05-85 +++$+++ 46946 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But here, Justice Ginsburg, the court did have jurisdiction because removal was properly effectuated once the entities that we moved were identified correctly as sovereigns, either foreign sovereigns in the case of BC Hydro, or Federal sovereigns in the case of BPA.
05-85 +++$+++ 46947 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But we go into that question all the time, 1447(b) is a nullity. I mean, if in every case you're going to be able to appeal whether indeed there was lack of jurisdiction, you're going to be able to appeal every case.
05-85 +++$+++ 46948 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, you're not, Justice Scalia, and here's why. Immunity is not a ground for remand because it is not a precondition for a removal by a sovereign. It is a separate freestanding issue. It is a status determination that determines whether removal is proper by those sovereigns.
05-85 +++$+++ 46949 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That would be fine if 1447(d) said that there is no appeal so long as the basis for removal was proper, but that's not what it says.
05-85 +++$+++ 46950 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But if in Thermtron the court, the district court had said my docket is too busy, I therefore lack subject matter jurisdiction and remand under 1447(c), I don't think there's any doubt that the courts would look beyond the label given.
05-85 +++$+++ 46951 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't think the court said in Thermtron, so therefore, I have no subject matter jurisdiction.
05-85 +++$+++ 46952 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm speaking hypothetically, Justice Ginsburg. My point is that the label the district court attached here was the wrong label, and that's why the court of appeals to satisfy --
05-85 +++$+++ 46953 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why? Why was it wrong when with respect to the sovereign parties, the district court said I have -- these people are totally immune from suit; therefore, I have no jurisdiction over them.
05-85 +++$+++ 46954 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because it is inconsistent with the notion that remand orders have no preclusive effect to remand a case on the ground that the sovereigns are immune, and force them to relitigate their immune status in State court. That is precisely why Congress enacted these sovereign removal provisions.
05-85 +++$+++ 46955 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then what you are really arguing for is, in effect, a separate rule, and that is that 1447(d) has an exception when we are dealing with foreign sovereign immunities.
05-85 +++$+++ 46956 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's our backup submission, Justice Souter. You do not need to reach that if you agree with our principal submission and --
05-85 +++$+++ 46957 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the trouble with the principal submission, it seems to me, is that we have said that even if the district court has come to an erroneous conclusion about jurisdiction, if it understands that it is making a jurisdictional ruling, that is not appealable.
05-85 +++$+++ 46958 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But Justice Souter, it did so. The case -- the cases in which the Court has said so have always been grounds -- jurisdictional grounds cognizable under 1447(c). Immunity from suit is not such a ground, because the purpose of having the removal provision on the basis of status is to allow the Federal courts to decide the immunity status. If the court sends the case back to State court on immunity grounds, it does not have preclusive effect in the State courts. The State courts will be obliged to relitigate sovereign immunity status and there will be no recourse except through appeal through the State court --
05-85 +++$+++ 46959 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you're into your backup argument now.
05-85 +++$+++ 46960 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
05-85 +++$+++ 46961 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The backup argument that you're now making, that not your principal argument.
05-85 +++$+++ 46962 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Scalia, that's not our backup argument. Our point is that in this case, the district court had jurisdiction by virtue of the successful removals, which everybody conceded were correct, that the label that it attached, immunity is subject matter jurisdiction, is not a label for a ground recognized in 1447(c). So it was appropriate for the court of appeals to exercise appellate jurisdiction to determine whether or not the remand was a mandatory remand under 1447(c) or a discretionary one of the type this Court has recognized in the Cohill case.
05-85 +++$+++ 46963 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did you request -- when the question of Powerex -- authority over Powerex was before the district court, did you request that the district court give you a 1292(b) order before the court remanded the case, so that you could have gotten the case -- the question up on appeal?
05-85 +++$+++ 46964 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe that we did, Justice Ginsburg. This case was remanded. A motion -- motions for clarification were subsequently brought. But a 1292(b) order was not requested by Powerex.
05-85 +++$+++ 46965 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because that would have taken care of it if the district judge agreed to delay the remand to allow this question of law to be determined by the court of appeals.
05-85 +++$+++ 46966 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is certainly the case that in searching through the docket entries, you'll discover that there was a holding by the district court of the remand, which is in itself an unusual procedure. But the point that is important here is that even apart from that, when the court had jurisdiction pursuant to the removal provisions, it did not lose subject matter jurisdiction by finding the immunity claims upon the part of the Federal and foreign sovereigns. And it is their theory that the district court never had subject matter jurisdiction, and that has to be wrong because it conflicts with the purposes behind the removal provision to give the sovereigns the opportunity to litigate their immunity defenses in Federal court.
05-85 +++$+++ 46967 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They don't care whether it had subject matter jurisdiction or not. It's not an essential part of their case. Their case is even if it did, it mistakenly thought it didn't, and remand it, end of case.
05-85 +++$+++ 46968 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Their submission in this Court, however, is that there was no subject matter jurisdiction.
05-85 +++$+++ 46969 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's their backup argument, I think.
05-85 +++$+++ 46970 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, their backup argument should be rejected by the Court as wrong.
05-85 +++$+++ 46971 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If in fact it goes back to the State court and you litigate it, you lost, can you raise as a point of appeal that you did not receive two things the statute guaranteed you? One was a determination in the Federal court that you're an organ of a Federal State, and second, a bench trial?
05-85 +++$+++ 46972 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, there's no provision --
05-85 +++$+++ 46973 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but could you?
05-85 +++$+++ 46974 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ By the time the appeals in the State court would have been exhausted, the very benefits --
05-85 +++$+++ 46975 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, I'm just asking could you, yes or no. I --
05-85 +++$+++ 46976 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would certainly make the argument.
05-85 +++$+++ 46977 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, okay. Now if you lost in the State court, could you then use that as a basis for asking this Court to accept jurisdiction? And if they -- if we did, we took it and we heard the case, reverse, and send it back for the proper tribal under the statute?
05-85 +++$+++ 46978 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, I would not want to foreclose any arguments that we might try to make; but let me point out to you that in the years that it would take to march through the State court system, Powerex, as a sovereign, would be denied its right to have a bench trial --
05-85 +++$+++ 46979 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ See, what I'm getting at is whenever there's an erroneous remand, the practical problems that you raise are present. And they're awful. I don't deny them. I mean, they're right there in the statute, it foresees them. So I wonder, is there any difference in this case from every case where the remand is erroneous?
05-85 +++$+++ 46980 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do think foreign sovereigns are different, and Congress intended to treat --
05-85 +++$+++ 46981 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In terms of the legal right to get the trial to which the law entitles you on your view of the law, there is no difference.
05-85 +++$+++ 46982 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The foreign sovereign is entitled to a bench trial. It is entitled to other procedural protections with respect to treatment of garnishment, other --
05-85 +++$+++ 46983 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you would get those eventually, it would just have to happen.
05-85 +++$+++ 46984 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be after -- it would be --
05-85 +++$+++ 46985 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that's purely -- pure question begging. I mean, the whole issue on the merits is whether it's a foreign sovereign or not. And you can't assume that you're correct when the remand provision or the provision barring appeal when it's been remanded doesn't care whether you're correct. The idea is, you can get a correct determination in State court through up to review by this Court eventually, as you can in Federal court. There's no reason to assume that the Federal court is the only place you would get a correct determination.
05-85 +++$+++ 46986 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But Mr. Chief Justice, the point of having Congress enact these removal provisions and to ensure jurisdiction in the federal court for sovereigns on the basis of their status is entirely to vindicate those rights and interests. If Powerex were sued for not --
05-85 +++$+++ 46987 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's -- it's the same with diversity jurisdiction. You can make the same argument. There's nothing distinctive here. This statute says that in a foreign sovereign immunity case you have a right to be tried in Federal court. Fine. But the statute also says that if you're a defendant in a diversity suit, you have a right to trial in federal court. And I don't know why this is any more demanding of an exception to 1447(d) than is ordinary diversity jurisdiction, where Congress has said you're entitled to trial in federal court.
05-85 +++$+++ 46988 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Diversity is different, Justice Scalia, and here's why. When a case is removed on diversity grounds, the court of appeals -- the district court is obliged to examine the bases of diversity. That is what the court's removal duty is. When a foreign sovereign removes a case, the district court's duty is to determine is this a foreign State within the meaning of the FSIA. If it is, I have jurisdiction.
05-85 +++$+++ 46989 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Frederick, may I just follow up on Justice Breyer's question? It seems to me that your answer suggests that you have two bites at the apple because you -- all the way along, you might win. And if you won, then it wouldn't matter. If you lose, you always have the argument that you've made here, let's go back and start over again.
05-85 +++$+++ 46990 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, I don't think we would win at all in that circumstance because we would be forced as a foreign State to litigate in State court contrary to Congress's will.
05-85 +++$+++ 46991 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but --
05-85 +++$+++ 46992 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Whatever arguments that may be preserved --
05-85 +++$+++ 46993 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you might win that litigation. It's not impossible, is it?
05-85 +++$+++ 46994 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is certainly not impossible, but the point --
05-85 +++$+++ 46995 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And if you lose, you always have a point on appeal and may start all over again later on.
05-85 +++$+++ 46996 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is unclear to me, and I'm not sure that I've seen any of this Court's cases that would suggest that the denial of that kind of procedural right would be grounds for reversing a State court judgment. And our position is that Congress intended to protect the bench trial right, the immunity defenses of a foreign sovereign, because the organ status questioned --
05-85 +++$+++ 46997 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did anybody in this case -- did any of the Defendants in this case request a trial by jury?
05-85 +++$+++ 46998 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't recall whether the Defendants do, but it is clear that the Plaintiffs would be entitled to a jury trial --
05-85 +++$+++ 46999 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And have they asked for it? Has any party asked for a jury trial? If not, that part of the case seems academic.
05-85 +++$+++ 47000 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the case has settled, Justice Ginsburg, prior to the formal invocation of trial procedures, and so --
05-85 +++$+++ 47001 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The case is settled?
05-85 +++$+++ 47002 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As explained in the cert petition papers, the case is on appeal in the State court system on objections to the settlement, and it will not be mooted during the course of this Court's action on the case. But the invocation of jury that would be done normally just before trial has not been an issue that's been presented.
05-85 +++$+++ 47003 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's different than it is in the Federal courts. You have to -- can't wait to the eve of trial to demand a jury.
05-85 +++$+++ 47004 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what the Plaintiffs here assert is that they would be denied their right to jury trial, and I presume that that means they intend to ask for one and to perpetuate that request. Our position, as we explain in a footnote in our reply brief, is that they have a jury trial right as against Duke and Reliant; they do not as against the foreign sovereigns that they have sued. So at root, the case is about the kind of comity and dignity that the courts of the United States will accord to foreign sovereigns. If Powerex were sued on the basis of non-commercial acts, it would not be entitled to have its immunity defense vindicated if the district court is held to have no jurisdiction, notwithstanding the proper removal under 1441(d). I'd like to save the reminder of my time for rebuttal, please.
05-85 +++$+++ 47005 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Frederick. Mr. Hallward-Driemeier.
05-85 +++$+++ 47007 +++$+++ FALSE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: This Court has recognized repeatedly that the bar on appellate review in 1447(d) applies only to remands under 1447(c). This Court has held that the courts of appeals have authority to decide whether a remand order was, in fact, one within the authority of 1447(c). In fact, just this term in Osborn, the district court remanded the case on the basis of 1447(c) for purported lack of subject matter jurisdiction.
05-85 +++$+++ 47008 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Osborn made it very clear that was an extraordinary case where Congress had explicitly ordered two conflicting things. One, it said no remand of a case of this type, and then it said no review of remands. So the Court was as clear as it could be that only when you have those conflicting signals does that court -- does that case have any application.
05-85 +++$+++ 47009 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor is absolutely correct. Osborn concerned a particular kind of categorical exception from 1447(c). Our argument is that as a categorical matter, the basis of remand in this case was not one within the scope of 1447(c). That although the District Court termed the sovereign immunity of the defendant's jurisdictional, it was not jurisdictional in the relevant sense. And this Court held precisely that in the Oliver American trading case. There, a case removed by Mexico was dismissed by the district court on the basis of its immunity and the district court certified that holding as a jurisdictional decision immediately appealable to this Court. Yet this Court looked beyond that label attached by the district court and held that sovereign immunity is not jurisdictional in the relevant sense because it does not limit the authority of the Federal courts qua Federal courts but rather is a general rule that would preclude suit in State court as well. Likewise, under 1447(c) it is not a basis to remand that the defendant is immune. When Congress authorized sovereign defendants to remove cases to Federal court to vindicate their immunity, it did not intend that when the district court upheld that immunity, it would be remanded to State court which would be free to disregard the Federal court's decision.
05-85 +++$+++ 47010 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ One technical question. The same one. I would to be -- imagine it is a diversity case. Imagine that a Federal court erroneously remands it. A trial gets up to this Court. And we say it was diverse. It shouldn't have been remanded. Now what's -- is that like -- can that happen? I guess. And is the remedy then wipe out the State proceedings, go back to Federal court? What happens? Has that have ever been a case like that?
05-85 +++$+++ 47011 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-85 +++$+++ 47012 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What happened?
05-85 +++$+++ 47013 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Missouri Pacific Railway case holds that even this Court, on review of a State court judgment following remand cannot review the remand order itself. It can review issues of Federal law that were decided by the State courts on remand but --
05-85 +++$+++ 47014 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And it is called, the case, Missouri --
05-85 +++$+++ 47015 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Missouri Pacific Railway case.
05-85 +++$+++ 47016 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Counsel, what -- what do you do about 1447(e) which says that if after removal joinder might defeat subject matter jurisdiction, the court can deny joinder or permit joinder and remand the action. In other words, you have got subject matter jurisdiction but the statute contemplates it may -- later -- later you may lose subject matter jurisdiction and you can remand it there. And I suppose that that needs to be interpreted in pari materia with (c) so that the remands would not be subject to review. It seems to me the same situation here. You have got allegedly subject matter jurisdiction. It is later defeated, and it is remanded. Why shouldn't that be covered by (c)?
05-85 +++$+++ 47017 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What, what's notable is that Congress enacted 1447(e) at the same time that it amended 1447(c). It provided in 1447(e) for an authority to remand in a particular instance where the court lost subject matter jurisdiction post-removal. It had of course been the rule since this Court's decision in St. Paul Mercury Indemnity, that post-removal events did not defeat the removal court's jurisdiction; and in the statute it was made explicit that 1447(c) authorized remand only when the case was removed improvidently and without jurisdiction. And when Congress amended the language in 1998 to make clear that non-jurisdictional defects in removal had to be raised immediately or were forfeited, it at the same time -- and added the language, or changed the language in the second sentence that raises problems for our argument; at the same time, it added 1447(e) to provide, as I said, a particular authority to remand based on post-removal events that would have been unnecessary if, as Respondents urge, 1447(c) was intended to confer general authority to remand on the basis of post-removal events.
05-85 +++$+++ 47018 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you don't have any doubt that a remand under 1447(e) would be covered by 1447(d), do you?
05-85 +++$+++ 47019 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. And the courts of appeals that have considered that question likewise hold that a remand under 1447(e) is right in pari materia with (d) although the courts seem to be split on whether the decision to allow the joinder is a separable decision appealable under Waco or not. But -- but that issue is not presented. But what is significant is that had Congress intended by the amendment of 1447(c) to authorize for the first time remand on the basis of post-removal events, 1447(e) would have been unnecessary; and yet, the legislative history, the 1447(e), makes clear that Congress believed that in the absence of that provision, the Court would have been limited to two alternatives. Authorize the joinder -- or deny the joinder, or dismiss the case.
05-85 +++$+++ 47020 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How is that relevant here? Where is the post-removal event?
05-85 +++$+++ 47021 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The post-removal event here is the recognition of the defendant's sovereign immunity.
05-85 +++$+++ 47022 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's not an event. That's -- that's an epiphany, it's not an event. (Laughter.)
05-85 +++$+++ 47023 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, according -- well, apparently the district court viewed it as a post-removal event that deprived it, or defeated, divested --
05-85 +++$+++ 47024 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Very strange meaning of event.
05-85 +++$+++ 47025 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- Your Honor --
05-85 +++$+++ 47026 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean the sovereign immunity didn't exist from the outset. Nothing changed.
05-85 +++$+++ 47027 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But -- but the district court's order is clear. And it is absolutely correct in this regard that removal jurisdiction existed at the outset. So the court does not lack removal jurisdiction. The reference in 1447(c), second sentence to "lacks subject matter jurisdiction," refers to lacks removal jurisdiction. And in fact, this Court used that shorthand repeatedly in the Kircher decision to describe 1447(c), lacks removal jurisdiction. This Court --
05-85 +++$+++ 47028 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ When did it say that? I really find it very hard to accept that argument, when its says -- you know -- it doesn't use lacks removal jurisdiction, that's what it means. It is such an easy thing to say.
05-85 +++$+++ 47029 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the Court has to go back to the history of the statute, how it's evolved. Clearly pre-1998, authority to remand was only if it was removed without jurisdiction. And so the question is when Congress changed the language to lacks subject matter jurisdiction, did it mean lacks removal jurisdiction? Which it --
05-85 +++$+++ 47030 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Under the -- under the district court's view, would there have been original jurisdiction against Powerex?
05-85 +++$+++ 47031 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it would not have. Bit that's because of the peculiarities of the difference between original jurisdiction under the FSIA, section 1330(a), and removal jurisdiction under the FSIA. Whereas original jurisdiction depends upon a conclusion that the defendant is not immune, Congress conferred removal jurisdiction whenever a foreign sovereign is defended.
05-85 +++$+++ 47032 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then can you --
05-85 +++$+++ 47033 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Likewise in 1442(a), which was about the Federal --
05-85 +++$+++ 47034 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can, can you tell me, if the Petitioner does not prevail here, the case goes back to the State court. Can the immunity argument be raised in the State court?
05-85 +++$+++ 47035 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The immunity argument could be raised in State court. That's what this Court held in Kircher. But the defendant would be forever denied its right to a bench trial under Federal law. That right is limited to suits in the Federal courts by its term; 1441(d) --
05-85 +++$+++ 47036 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In other words the State court couldn't say well you know, this district court was wrong; there's really immunity under the Federal statute. The State court can't hold that?
05-85 +++$+++ 47037 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The State --
05-85 +++$+++ 47038 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because then you'd have constant -- eternal shuttling back and forth, that's why.
05-85 +++$+++ 47039 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The State court could reconsider Powerex's status as a foreign sovereign, but it wouldn't have many, if any, implications in the State court because Powerex isn't claiming immunity in this case. It's only invoking the procedural benefits of the FSIA which include that the case be litigated in the Federal court before a judge rather than a jury. And it would be forever denied the benefits, those important procedural benefits of the statute if this Court doesn't uphold review of the --
05-85 +++$+++ 47040 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, we don't know --
05-85 +++$+++ 47041 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In other words, the -- the Federal determination bars the State court from redetermining that there's immunity? That the State court can't say, "Federal court, you're wrong?"
05-85 +++$+++ 47042 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The issue of immunity of Powerex was never raised in this case. It can review the question of whether it is an organ of the State it but it cannot review the remand determination that Powerex can never be granted the procedures benefits of Federal foreign order bench trial. Thanks, Your Honor. The Court: Thank you, Counsel. Mr. Simon.
05-85 +++$+++ 47044 +++$+++ FALSE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court. There are two reasons, independent and sufficient reasons why there is in appellate jurisdiction in this case. The first most narrow and simple reason to vacate the decision below for lack of jurisdiction, is to follow this Court's precedents which accept the district court's remand order for what it is and what it says it is, a remand for lack of subject matter jurisdiction under 1447(c), unremovable under 1447(d). That is a simple direct route to that result. There is a second approach suggested by a lot of the briefing and some of the argument Your Honors have heard this morning. And I want to lay it out briefly for the Court. And it is that, as the law professor amici have suggested, there is some amount of confusion in the lower courts, I might say with due respect, evasion of 1447(d) in the lower courts, by judge-made exceptions to 1447(d), created by some but not all of the courts of appeal. And the Court could clear out some of this underbrush, mooting many of the issues that Mr. Frederick and the that Solicitor General have raised. Thermtron after Carnegie Mellon, addressing the question Justice Kennedy raised in his concurring opinion, in Things Remembered versus Petrarca, Thermtron does not say what many of the lower courts think it does. Thermtron does not say what my adversaries say it does, because Thermtron has been partially overruled by Carnegie Mellon. The notion that the only proper remand is a 1447(c) remand is ancient history after Carnegie Mellon, and therefore the notion that the only remand covered by 1447(d) is a remand under 1447(c) is also ancient history. Congress has given us a simple and strong message, which is when we're disputing the forum, when the parties in a case are legitimately and in good faith disputing forum, State court versus Federal court, Congress has said take one shot at it, let an Article III judge determine whether the forum is State court or Federal court, and move on to the merits.
05-85 +++$+++ 47045 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, what, what reason would Congress have for wanting a system that says -- and there are many, many, many people in the United States who would like to sue Pakistan. They would like to sue China. They would like to sue Russia. There are all kinds of places they would like to sue. And why would Congress want to have a system that says to those countries, you can come into Federal court and get your claim adjudicated, whether it is really you, China a; but by the way, if the Federal judge makes a mistake, there you are in Mississippi, Alabama, Illinois, any one of 50 different states? In front of juries, the very thing that we gave you this statute so you wouldn't have to do. Now what would their theory be?
05-85 +++$+++ 47046 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It --
05-85 +++$+++ 47047 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can I, -- I'm not sure it is even that he made a mistake. It is even worse than that. If he gets it right and finds that you are a sovereign --
05-85 +++$+++ 47048 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me try to answer it --
05-85 +++$+++ 47049 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- you can go back to State court. I mean, that's even worse. He gets it right.
05-85 +++$+++ 47050 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me try to answer both questions. The problem is whether he gets it right or wrong, we spend two years in a court of appeals. But Your Honor, you're assuming there's an immunity issue in this case. With due respect, my adversaries are arguing someone else's case. There is no immunity claim in this case by Powerex. There is one petition, one petitioner.
05-85 +++$+++ 47051 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ They were saying they were an organ of --
05-85 +++$+++ 47052 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They were saying they were an organ.
05-85 +++$+++ 47053 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yeah, and therefore they are immune unless -- unless they fall within an exception. And it may be they do. Is that not right?
05-85 +++$+++ 47054 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. They conceded that they fell within the exception.
05-85 +++$+++ 47055 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I'm saying, that's how the statute works.
05-85 +++$+++ 47056 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
05-85 +++$+++ 47057 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But I take it if you win this, it's precisely the same, in respect to a person who has total immunity.
05-85 +++$+++ 47058 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
05-85 +++$+++ 47059 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why not?
05-85 +++$+++ 47060 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would disagree Your Honor.
05-85 +++$+++ 47061 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why not?
05-85 +++$+++ 47062 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A party who has total immunity--
05-85 +++$+++ 47063 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yeah.
05-85 +++$+++ 47064 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Would have removed the case the same way --
05-85 +++$+++ 47065 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yeah. Yeah.
05-85 +++$+++ 47066 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And it would have presented two arguments to the district court. It would have argued number one, we are a foreign sovereign; maybe it wins, maybe it loses. And number two. We are immune.
05-85 +++$+++ 47067 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
05-85 +++$+++ 47068 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is a solid line of cases that suggests the decision on immunity -- first of all let me say, I think it is somewhat far-fetched that a party that would actually be immune, say the King of Saudi Arabia, would end up being in this third lowest category of foreign -- purported foreign sovereigns and end up in the position Powerex is in. But if it did, in other words we have three categories. We have immunes, we have non-immunes who got Federal court, and then we have would-be foreign sovereigns like Powerex, who end up in State court. And I'm suggesting for a party to fall from the first category to the third in front of an Article III judge --
05-85 +++$+++ 47069 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And a Judge makes a big mistake --
05-85 +++$+++ 47070 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Makes a big mistake.
05-85 +++$+++ 47071 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ China comes in --
05-85 +++$+++ 47072 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
05-85 +++$+++ 47073 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And says of course you're China. And then it signs a remand order.
05-85 +++$+++ 47074 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would submit, Your Honor, the question has never been addressed by this Court. The lower courts suggest that that is a collateral order. The immunity issue, not the remand issue. We actually now have a Waco type case.
05-85 +++$+++ 47075 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. Well, after all -- if you're going to say, you say that one is reviewable on appeal.
05-85 +++$+++ 47076 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The immunity --
05-85 +++$+++ 47077 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is it or not, in your view?
05-85 +++$+++ 47078 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In my view, the immunity issue, but not the remand is reviewable on appeal --
05-85 +++$+++ 47079 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Fine. And now all they want here is the organ issue reviewed on appeal.
05-85 +++$+++ 47080 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. And the difference is --
05-85 +++$+++ 47081 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And what's the difference between the one and the other?
05-85 +++$+++ 47082 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The difference is that the immunity issue is reviewed on appeal because there is a line of court of appeal cases -- a majority, not a unanimous majority, never blessed by this Court -- which suggests that immunity is so important, don't need a lawyer, you don't go to court, you don't say a word, you don't spend a dollar, you walk away -- so important that you are entitled to an immediate --
05-85 +++$+++ 47083 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay, and you agree with that?
05-85 +++$+++ 47084 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I agree with that.
05-85 +++$+++ 47085 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Fine. Then why is it in your opinion that the immunity thing is so important that they get this collateral appeal, but the organ thing is not so important since all, what turns on that is whether they're going to have their non-jury trial.
05-85 +++$+++ 47086 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I want to come back non-jury trial and answer Justice Ginsburg's question because I don't think she got the right answer. But the reason it's more important is this is, as Justice Scalia said, like a diversity decision, this is a litigation who sells power in the Pacific Northwest and admits that it competes with Enron, Duke, and Reliance, and it is disputing whether it belongs in a State court in San Diego or the Federal court across the street in San Diego, leaving aside the jury issue. And that is precisely the kind of dispute that Congress suggested in 1447(d) and its predecessors, which have been on the books for more than 100 years, ought to be done once. What do they say, one and done? Is that what they say in the district court?
05-85 +++$+++ 47087 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're saying this all turns on our assessment of the strength of the interest in remaining in Federal court? Is that what it boils down to?
05-85 +++$+++ 47088 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it turns on the strength of getting an immediate decision on the immunity question. The immunity question I think is a question of an entirely different nature than the question of forum. In the --
05-85 +++$+++ 47089 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The immunity question, the immunity question is the same as State or Federal court, because the statute as it's written, any foreign sovereign, China, whatever, is as immune from State court jurisdiction as it is from Federal court jurisdiction because Congress said so. But with respect to the commercial enterprise, Congress said, we're going to give you a Federal court and we're going to give you a judge trial. That doesn't apply to State courts.
05-85 +++$+++ 47090 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. But Congress said, we're going to give you a Federal forum and a bench tribal if you convince us that you are an agency or instrumentality of a foreign State. This, this corporation Powerex failed to make that convincing showing. Having failed to make that convincing slowing, again, they are debating in the appellate courts and tying litigants up for two, five years over whether this case should be litigated in State court or in Federal court.
05-85 +++$+++ 47091 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There was a sovereign party who said: I'm out of this; I have suit immunity. And that was the B.C. --
05-85 +++$+++ 47092 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ B.C. Hydro.
05-85 +++$+++ 47093 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What happened to B.C. Hydro? Because as I understand the district court sent that party back, too.
05-85 +++$+++ 47094 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The district court found that they were immune, properly followed the law, but determined because it believed it had no subject matter jurisdiction that it should then stop at that point, that it should just walk away from the case and remand it, over the vehement disagreement of B.C. Hydro and the parallel vehement disagreement of the Bonneville Power Administration. The Ninth Circuit when it erroneously took the appeal on the remand also clarified or straightened out that issue.
05-85 +++$+++ 47095 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but it couldn't -- if you are right, then the Ninth Circuit never should have touched this case. So what happens to the three parties, two U.S. parties, one British Columbia, who are entitled to suit immunity?
05-85 +++$+++ 47096 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, what's happened so far is nothing, which might tell us that in the practical world when a Federal district judge says that B.C. Hydro is immune and then remands a multi-plaintiff, multi-defendant, multi-cross defendant-cross defendant case to San Diego Superior Court, it is exceedingly that the San Diego Superior Court will reconsider the immunity. But if it did --
05-85 +++$+++ 47097 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But could it?
05-85 +++$+++ 47098 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I suppose it could, but if it did that matter is subject to appeal and subject to ultimate certiorari review in this Court. So I think we're talking about a frolic.
05-85 +++$+++ 47099 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought the argument you were making a few minutes ago, if I understood it correctly, was that B.C. Hydro would not have been barred by 1447(d) from taking an appeal to contest the remand; is that correct or not.
05-85 +++$+++ 47100 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think B.C. Hydro could have taken a collateral order, a collateral order appeal.
05-85 +++$+++ 47101 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Whether it's a collateral order or not just goes to whether it falls under 1291. It doesn't speak at all to the issue of 1447.
05-85 +++$+++ 47102 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ B.C. Hydro could have attempted to appeal the immunity decision under a series of decisions which suggest that immunity is so important that it ought to be decided right then.
05-85 +++$+++ 47103 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The difference between that immunity and Powerex's status is what? It's simply the fact that there's a stronger interest in allowing immediate appellate review, Federal appellate review of the determination of the remand of a party that claims to be a sovereign as opposed to Powerex's status as an organ?
05-85 +++$+++ 47104 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Among several other things. There is a stronger interest in that, and we are not debating about the forum. Again, we have the Kircher case from last term saying State courts are perfectly capable of resolving this issue. That is a quotation actually from the Missouri Pacific case.
05-85 +++$+++ 47105 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If we think that Powerex, that there's a strong interest in having Powerex remain in Federal court if it's entitled To that under the Foreign Sovereign Immunities Act, that would be suffer to get around 1447(d)?
05-85 +++$+++ 47106 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think Justice Scalia was correct to say there is just as strong an interest in a diversity case in having a New York corporation trying to escape --
05-85 +++$+++ 47107 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But I'm having, I'm having the same problem as Justice Scalia and Justice Breyer. Can you say in just a few sentences the difference between the case where there is sovereign immunity, China, the China hypothetical, and this case where it's organ immunity?
05-85 +++$+++ 47108 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, if I could --
05-85 +++$+++ 47109 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're telling us that one is more important than the other, but there's no textual basis in the statute for us to make that distinction.
05-85 +++$+++ 47110 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think there are two differences, so if I could. One is textual and one is important. Let me start with the textual difference. The textual difference is that 1447(d) speaks to remands, and so to the extent the district court remanded the matter to State court the remand is untouchable on appeal or by mandamus because of 1447(d). And if the foreign -- if the foreign relations body, lobby, doesn't like that, if the State Department doesn't like, that they can go to the Capitol and get that fixed quite easily. There are half a dozen exceptions to 1447(d) for class actions, for Native Americans, for civil rights cases, and they can get their own exceptions. So to the extent what the trial court did was remand, it is untouchable. That is my textual answer. It's a remand, i.e. Waco, in which the court says the remand is untouchable, the dismissal of the unnecessary or indispensable party is reviewable. So what I would say is, although the remand is untouchable, the denial of immunity -- and that's why I kept saying collateral order; I apologize if that confused you, Justice Alito. I meant that line of cases about going straight up even though the case was continuing. While the case continues in State court, where it belongs under 1447(d), it would appear under this line of collateral order cases that the denial of immunity per se could go up on its own --
05-85 +++$+++ 47111 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm asking why is denial of immunity for sovereign status different from denial of organ status giving you a right to a bench trial, etcetera?
05-85 +++$+++ 47112 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Possibly, possibly this could would decide that question the other way. But --
05-85 +++$+++ 47113 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ We have this very old judge like me. China is there. And he says: This isn't China; Formosa is China. So he says remand. So there we are, China is now in the Western District State Court for Illinois and they're suing them for a lot of money. Now, you said, I thought, before that where that happened, and they wrongly ly denied immunity, they could, China, appeal in the Federal system. I thought you said that.
05-85 +++$+++ 47114 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-85 +++$+++ 47115 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right.
05-85 +++$+++ 47116 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But not the remand.
05-85 +++$+++ 47117 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What?
05-85 +++$+++ 47118 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But not the remand.
05-85 +++$+++ 47119 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All they want is a definitive appeal that this is really China, all right. Now, can they do that, yes or no? You said yes. So I thought Justice Kennedy's question was, if they can do that, why can't Powerex appeal in exactly the same way on the question of whether they're an organ. What's the difference?
05-85 +++$+++ 47120 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The first difference is what I said in response to Your Honor's question was I think they could do that under some cases from the courts of appeal. I know they can't appeal the remand because we have an act of Congress which --
05-85 +++$+++ 47121 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't care. I don't call this an appeal of a remand. What this is, it is an Appeal of the determination precedent to remand that Powerex is not an organ.
05-85 +++$+++ 47122 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Breyer --
05-85 +++$+++ 47123 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That would make them just as happy, I believe.
05-85 +++$+++ 47124 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, think about a multi-party case and maybe my answer will be clearer to you. In a multi-party case my position is the remand stands, the case goes back to Missouri or Mississippi or wherever your hypothetical was, but at the same time, I do believe that the potentially immune party, which is not here in this courtroom today, the potentially immune party, could seek to review of what is a dispositive ruling. Remember, that's a dispositive ruling. They win the case. That's very different than a venue ruling.
05-85 +++$+++ 47125 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Regardless of how they would get up on it, assuming they could get up on the immunity question, our series of questions is why do we draw or why should we draw a distinction between immunity and federal bench trial? And your answer is, I take it, immunity is dispositive; Federal bench tribal is not?
05-85 +++$+++ 47126 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Immunity is dispositive and Federal bench trial is not -- and is no different from the day to day decisions district courts make all the time about the choice between a State court and a Federal court in the area of remands and removals.
05-85 +++$+++ 47127 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Immunity, suit immunity, is you can't be sued anyplace, not in State court, not in Federal court; you can't be sued, period. But now it is admitted that you can be sued. That's not in dispute in this case, right?
05-85 +++$+++ 47128 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
05-85 +++$+++ 47129 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So the only question is where.
05-85 +++$+++ 47130 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that is my core --
05-85 +++$+++ 47131 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The question is if --
05-85 +++$+++ 47132 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Excuse me. That is my core point, that Congress told us when the only question is where, we stop after one level and we move on to the merits.
05-85 +++$+++ 47133 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can you help me with --
05-85 +++$+++ 47134 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would like to answer your question about a jury, but I think I interrupted Justice Stevens.
05-85 +++$+++ 47135 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I just want to be sure your position. Assume that there is a remand that was improper and cannot be appealed under your theory and the Powerex argues all along, I was entitled to a Federal forum and a non-jury trial. And the State court says no all the way up. Can they file a petition for certiorari saying, we had a Federal right that was denied us, not the remand but our entitlement to a bench trial? Can they petition for certiorari at the end of the State proceeding in your view.
05-85 +++$+++ 47136 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Other than the jury question, I think the answer would be no because of 1447(d), because I think 1447(e) would suggest that that's an appeal of a remand. But again, you're asking questions that I believe have not been addressed by this Court or even lower courts.
05-85 +++$+++ 47137 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm just wondering what your position is.
05-85 +++$+++ 47138 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A clever enough lawyer I suppose could argue that at that point that we're no longer challenging the remand, the remand has happened and been completed and the trial has taken place; we're now simply challenging the results. And maybe that clever lawyer would win the day.
05-85 +++$+++ 47139 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And in effect he would say -- I mean, I assume what the clever lawyer would say is, State court, cannot try me at all. The feds can do what they want about remand and it gets back here. But because I'm entitled to a bench trial, you cannot try me at all. Isn't that the argument?
05-85 +++$+++ 47140 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, I think in State court a clever litigant could argue all these points over again, because 1447(e) --
05-85 +++$+++ 47141 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But his clever opponent would say -- (Laughter.)
05-85 +++$+++ 47142 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that what 1447(d) means is that you can be tried in State courts. That's precisely what it says.
05-85 +++$+++ 47143 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And ultimately when the two clever parties got to the State supreme court, they would have these two opposing issues and ultimately if we granted cert this Court would decide it, wouldn't it.
05-85 +++$+++ 47144 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This Court would ultimately decide it and they would ultimately decide questions such as whether the jury or, to put it the other, the bench trial issue has been preserved.
05-85 +++$+++ 47145 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why not say, depending on the clever lawyers, or non-clever as the case may be, why not just say Congress intended that you do get an underlying appeal in the Federal system, for what is at stake is not simply where the case will be tried, but rather significant and important rights attach in the Federal court that do not attach in the State court. And therefore, it is right, the appeal you get when they -- when what is at stake is immune or not, and by doing that we avoid four more years of litigation and the necessity to hire clever lawyers.
05-85 +++$+++ 47146 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Congress has said -- Congress has said the contrary. And there are often important differences between State and Federal courts. Justice Breyer, I think you have some experience in California. We have 9 to 3 jury verdicts. You will have a litigant here next year saying that the difference between a removal and a remand is a unanimous jury verdict or a 9 to 3 jury verdict, and that's really important. Now, I would just briefly like to go back to Justice Ginsburg's question about a jury because I don't think she got the full answer. Let me give it to you, Justice Ginsburg. The jury issue is virtually -- I would say not virtually. The jury issue is out of this case based on my adversary's reply brief. I will tell why you. We did ask for a jury trial in our case and we were upset about the whole notion of this case being removed on a cross-claim we were not involved in -- we never sued Powerex -- losing our right to a jury trial on this important case. Mr. Frederick's reply brief says at footnote 4, page 3 -- or footnote 3, page 4; I apologize -- that our right to jury trial is not threatened here and that under certain lower court decisions, which he is correct they do exist -- I'm not sure they're unanimous -- Our right to jury trial would survive even though he would have a right to a bench trial under his theory. Well, there is no right to a jury trial on the cross claim against Mr. Frederick's client. The cross claim in the California court, which got this whole ball of wax rolling, is a cross claim for equitable indemnification and declaratory relief, equitable claims as to which there is no right to a jury trial. So I think we are all now in agreement on a jury trial. We are arguing someone else's case. Some day a litigant will appear in this Court and present the issue of jury trial --
05-85 +++$+++ 47147 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they raise that there is still the question of Federal forum over State forum.
05-85 +++$+++ 47148 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is, and that's the issue that I think Congress has clearly and definitively said, the State courts have pretty good judges, pretty good juries, pretty good systems and certiorari procedures to this Court. In Kircher, the Court's opinion says, "the State courts are perfectly competent to resolve these issues." The cost of this case being frozen for 3 or 4 years while we debated these issues -- and these issues are very difficult. I would say, we don't only have a backup position, we have a backup backup position. Because we think, number one, the court should be taken at its word. We think, number two, the court had no subject matter jurisdiction. Removing jurisdiction is not subject matter jurisdiction. If you look at the book, Chapter 89, Section 1441, et cetera, it's titled Removal of Cases From State Courts. You won't find the word "subject matter jurisdiction" in there anywhere. A removal petition removes a case from the State court to the Federal court, where if it's a foreign sovereign immunities case, the Federal court decides if it has subject matter jurisdiction. That's what 1330 says in haec verba. It's what this Court's decision in Verlinden versus Central Bank of Nigeria says in haec verba. Verlinden says every court that gets a foreign sovereign immunities case must determine at the outset whether it has subject matter jurisdiction by determining if the foreign sovereign is immune. Which means that Judge Whaley was correct when he decided that by concluding he had an immune party in front of him, he had no jurisdiction. And it was equally correct for Bonneville, when he determined that United States versus Myers says the same thing, so that he had no subject matter jurisdiction. And in addition, there was a derivative jurisdiction doctrine. This notion of "removal jurisdiction" quote unquote, it's a term we all use. The Court used it in Kircher. I use it. Other people use it. But if you start getting serious about your words, it's meaningless in this context. We have subject matter jurisdiction and it is conferred in the area of 1330, 1331, 1332. It is not conferred in 1441, 1442, or 1443. It's simply not there. So my backup argument is, he was right on every point. And my backup argument beyond that is again, please, reread Carnegie Mellon. Put it next to Thermtron and look at what the lower courts have done. They have found excuse after excuse to take appeals in cases that have no business being in the courts of appeals. They don't have immunity issues. They don't have foreign sovereign issues. They don't have anything.
05-85 +++$+++ 47149 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the reason why they may have done that is because they've seen case after case where absolute power corrupts absolutely. And because district judges know that remand orders are not reviewable, on occasion they will remand cases for reasons that are clearly improper. That may be the reason. Now on your first argument, you say that what the district judge says is dispositive. You mean if the district judge says I lack subject matter jurisdiction because my docket is crowded, that's not --
05-85 +++$+++ 47150 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
05-85 +++$+++ 47151 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's not --
05-85 +++$+++ 47152 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. I overstated. Let me say it more clearly. Kircher, decided last term, makes clear the line between what can and can't be done. It discusses precisely this point and it refers to the Ryan versus Contra case and it refers to the Principi case. And it says that when the court is patently wrong about whether the issue it is discussing is subject matter jurisdiction, then this Court may enter into --
05-85 +++$+++ 47153 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, it's a good thing you've got a lot of fallback arguments because you fall back very quickly. I would have thought your answer to Justice Alito would be, the statute says if it's remanded, it's not reviewable on appeal or otherwise. And if it's remanded for a silly reason, that will be corrected on review of the State supreme court by this Court.
05-85 +++$+++ 47154 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would be my first answer, and the Chief Justice said it much better than mine, than I have. But I think, Your Honor, looking at Kircher, to be fair, looking at Kircher, I believe that is the position Justice Scalia took, it is concurring opinion. And I didn't want to suggest that Justice Scalia's concurring opinion was the opinion of the Court. The opinion of the Court wrestles with what I thought was Justice Alito's question. What do you do if the trial judge says he has no subject matter jurisdiction and he has not simply made a garden variety jurisdictional error but he has missed what the issue is? It's really failure to state a claim. It's really something else. And we of course have the Steele case which says jurisdiction has many meanings and we often get confused about them. And the Court answered the question by saying, only when the trial court is patently wrong, patently wrong not about the jurisdictional question but as to whether it is even a jurisdictional question, only when the court is patently wrong do we second guess the court. So --
05-85 +++$+++ 47155 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That certainly changes the argument. So the notice of appeal that's filed or the brief on appeal says not only was the court wrong, it was patently wrong, and the court of appeals has to consider that before determining whether it has jurisdiction to review the remand order.
05-85 +++$+++ 47156 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the court wants to adopt Justice Scalia's view in the prior case, in the Kircher case, my clients would be pleased with the results --
05-85 +++$+++ 47157 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I recommend that. (Laughter.)
05-85 +++$+++ 47158 +++$+++ TRUE +++$+++ MR. SIMON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I think, Justice Roberts -- I think, Mr. Chief Justice -- I apologize. Because my time is running short, I would say the key point in this case came when we sought to have a prompt dismissal in the Ninth Circuit of the appeal prior to full briefing and argument, and it was denied. That was the point at which if a litigant simply parroted the phrase "this is patently wrong," would likely in most circuits before most panels have lost. And this matter would have gone back to the State court 2-1/2 years before it got affirmed by the Ninth Circuit and five years before today. Unless the Court has any further questions, I think I've completed my comments.
05-85 +++$+++ 47159 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Simon. Mr. Frederick, you have three minutes remaining.
05-85 +++$+++ 47161 +++$+++ FALSE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, a non-jury trial is an aspect of sovereign immunity. This Court's cases have recognized that. In footnote 6 of the Government's brief, the Government cites the Lehman case which makes this point clear and argues that the point should be applicable to sovereigns in the context in which we are faced here. The question of whether a foreign entity, and it's more complicated often in the real world, Justice Breyer, as your question's identified not simply with questions but with the kinds of entities that foreign governments create to advance public purposes. The intent of Congress was not to have those kinds of entities tested in State court to determine whether or not they enjoyed the privileges and procedural protections of the FSIA. And it is not simply a question of whether or not an elderly judge might choose to recognize China or Formosa, but rather the kinds of instrumentalities that were created by those governments to advance public purposes, to serve as separate political entities, and who would be performing the kinds of acts that might lead them into litigation, and --
05-85 +++$+++ 47162 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And Congress said, those entities don't get any immunity, they get two things: They get a federal forum and they get a judge trial. That's all that's at stake.
05-85 +++$+++ 47163 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's not all that's at stake, Justice Ginsburg. There are also rights with respect to foreign states to be free of punitive damages. There are rights to have certain property of the sovereign that would be subject to different attachment rules. The FSIA has a whole string of procedural protections that are afforded to foreign states and their instrumentalities. And this case ultimately is about the fact that Powerex is being subjected to multiple suits in State court, but as a result of the Ninth Circuit's holding in --
05-85 +++$+++ 47164 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are those -- have they been sued by the plaintiffs in any of these cases or have they always been brought in by defendants?
05-85 +++$+++ 47165 +++$+++ TRUE +++$+++ MR. FREDERICK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They have been directly sued by the People of the State of California whom my brother here represents. They have been sued by the California Attorney General. They have been sued by the California Department of Water Resources. And under the Ninth Circuit's precedent in this case which I urge you to overturn, Powerex has been remanded to State court, has not been permitted to appeal the remand order, and is stuck in State court in these cases without any opportunity to test what is a clearly erroneous, and what my brother doesn't make any attempt to defend, the merits of the decision, that Powerex has performed public functions, it's serving at the direction of the Government of British Columbia, and is performing these functions to advance clearly public purposes. And yet, we are now in this Kafkaesque work world between State and Federal court where if we try to litigate all the way up through State court, it is not entirely clear whether we will ever have our organ -- our status as a foreign organ ever vindicated. Thank you.
05-85 +++$+++ 47166 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
05-8794 +++$+++ 47170 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first this morning in Hill v. McDonough. Mr. Doss.
05-8794 +++$+++ 47172 +++$+++ FALSE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: In Nelson v. Campbell, this Court held that a challenge to procedures to execute an inmate may be brought in a section 1983 action unless the challenge would necessarily prevent the State from carrying out its execution. Mr. Hill does not challenge the State's right to execute him by lethal injection, but instead, only challenges the particular protocol Florida Department of Corrections in their discretion has adopted. Mr. Hill's claim, thus, does not necessarily prevent his execution, and his claim falls squarely within the scope of Nelson, as announced by this Court. The current claim -- the only focus of that claim is the discretionary choice of the particular injection procedure that has been chosen by the Florida Department of Corrections. Therefore, it does not violate Nelson because the relief sought would not necessarily prevent the State of Florida from carrying out its execution. The State could still carry out the execution through a more humane means by altering the particular protocol that -- that they have adopted.
05-8794 +++$+++ 47173 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which you decline to specify. Right?
05-8794 +++$+++ 47174 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, Justice. I didn't hear the first part of your question.
05-8794 +++$+++ 47175 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ By a means which you decline to specify, so that if they come up with some other means, you could -- you could object to that as well I assume.
05-8794 +++$+++ 47176 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there -- in -- in answer to your question, there's never been a -- a requirement that a section 1983 plaintiff must plead a constitutionally acceptable alternative.
05-8794 +++$+++ 47177 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, I understand that. But I'm just -- I'm just pointing out what -- what becomes available to you if we -- if we give you the relief you request.
05-8794 +++$+++ 47178 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this --
05-8794 +++$+++ 47179 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You -- we -- we say this -- this procedure is no good. The State comes up with another procedure, and you challenge that one. Right? And -- and another few years go by.
05-8794 +++$+++ 47180 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I respectfully disagree with the fact that it would just leave open a total series of challenges.
05-8794 +++$+++ 47181 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why?
05-8794 +++$+++ 47182 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The State -- the State would have the opportunity to come in and propose a acceptable alternative. Just like any other finding of unconstitutionality, once they propose that alternative, we can challenge that if something is -- is not acceptable, or accept the -- the proposed alternative and the court enters a -- a consent decree.
05-8794 +++$+++ 47183 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You -- you think that the -- the way you would proceed in trial court is the trial court finds that this is no good, and -- and then the trial court proposes an alternative, or -- or invites the State to propose to the trial court an alternative, and then asks whether you agree to that alternative. And if you don't, the trial court makes the decision whether the alternative is -- is constitutional or not.
05-8794 +++$+++ 47184 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This -- that's --
05-8794 +++$+++ 47185 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's not bad.
05-8794 +++$+++ 47186 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that's entirely correct, and I think we've seen that in -- in a couple of the cases that are out there. Mr. Brown's case out of North Carolina followed that track. Mr. Morales' case somewhat followed that track, although through no fault of Mr. Morales, California wasn't able to carry through on the alternative that they chose because the anesthesiologists decided to not participate. But it -- but it just proceeded to basically an up or down ruling upon the proposed alternatives. So I -- I would disagree that there's a seriatim effect of -- of just perpetual litigation over whether the alternatives --
05-8794 +++$+++ 47187 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're envisioning that one case will take care of it. That is, if the Court rules against you, that's the end of it. You can't come back with another inadequacy because you'd be barred by claim preclusion. On the other hand, if the State comes up with an acceptable alternative, you agree to it. That's one thing. The Court holds -- but there wouldn't be a second episode I think. One way or another this proceeding would end it.
05-8794 +++$+++ 47188 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The only -- the only way I would foresee a second episode is if they -- if they proposed a second unconstitutional procedure.
05-8794 +++$+++ 47189 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that probably will be what will be alleged. Of course, you don't know when -- at this proceeding, we have no idea, if we rule in your favor, what alternative the State is going to provide, and I am willing to bet whatever that alternative is that it will be subject to a challenge under a new 1983 suit. There would be no claim preclusion if you didn't know what the alternative was at this point. Right?
05-8794 +++$+++ 47190 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, although it would proceed to basically an up or down ruling, just as it did in -- in the Brown case and the -- the Morales case.
05-8794 +++$+++ 47191 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In this very case, you're saying the court would -- would rule on the State's proposed alternative. Right?
05-8794 +++$+++ 47192 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-8794 +++$+++ 47193 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if you disagreed with that, you could appeal it up again. Right? You can go to the court of appeals --
05-8794 +++$+++ 47194 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-8794 +++$+++ 47195 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- and then seek cert up here. Right?
05-8794 +++$+++ 47196 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that would be correct.
05-8794 +++$+++ 47197 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May -- just as a -- maybe this is technical, but what did you ask for for relief? Did you ask for relief that the State be enjoined from using this method, or that the State be enjoined from executing him until an acceptable method had been found? Because in the first case, the door theoretically is open to seriatim 1983 actions, and in the second case, presumably the issue would be resolved in this one case, as you suggest. So which did you ask for? Injunction against this or injunction until an acceptable alternative came up?
05-8794 +++$+++ 47198 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We asked for -- for two -- two injunctions: one a preliminary injunction allowing the -- the Court to be able to consider the case, and then the way the prayer for relief was worded is, is that we asked for a permanent injunction barring the State of Florida from executing Mr. Hill as they currently intend.
05-8794 +++$+++ 47199 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if that's -- if that's the relief you get, then the door would be open to successive different 1983 actions every time the State comes up with -- with a new protocol. Whereas, if what the -- if -- if the trial court -- if you succeed at this stage, if we say, yes, you're -- you're properly in court and you go ahead and litigate it, if the trial court, in fact, awards not the injunction that you asked for but the injunction saying do not execute this person until a constitutional protocol has been proposed and accepted by the court, then everything will get resolved in this one action, as you suggest. So would -- would you consent to -- as it were, to an amendment of your prayer for relief so that the injunction will be in such a form that everything can get resolved in this one case?
05-8794 +++$+++ 47200 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In -- in the sense of -- of the State of Florida proposing a -- a -- hopefully a constitutional way of executing --
05-8794 +++$+++ 47201 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
05-8794 +++$+++ 47202 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Mr. Hill, where it wouldn't give rise to another 1983 action?
05-8794 +++$+++ 47203 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Right.
05-8794 +++$+++ 47204 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-8794 +++$+++ 47205 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You -- you would agree to that?
05-8794 +++$+++ 47206 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-8794 +++$+++ 47207 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, do you have confidence --
05-8794 +++$+++ 47208 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You said --
05-8794 +++$+++ 47209 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- do you have confidence that Florida can do that?
05-8794 +++$+++ 47210 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Based upon the litigation that we've seen around the country, yes, I think there are acceptable ways to -- to do it out there. Whether they would choose that way or not, I don't know because the way Florida's system is designed is -- is that it's not statutorily mandated as to -- as to particular protocol that's utilized. It's left totally with the Secretary of the Florida Department of Corrections. It's not subject to any rulemaking or any administrative procedures as far as promulgating those rules. It's -- it's just within the Secretary's discretion.
05-8794 +++$+++ 47211 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you --
05-8794 +++$+++ 47212 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, one -- one of the circumstances that -- that was raised by the questioning is this. States generally have the defense of laches. They -- they require the petition to be filed within a reasonable time. With changes in pharmacology, the laches defense will not usually be available. And under the proposal that the -- the State resolves it once and for all, I suppose the State couldn't adopt a new protocol that it thought was better, more humane, without risking more litigation. So it -- it really is a disincentive for the States to try to make the procedure less painful for the -- for the accused.
05-8794 +++$+++ 47213 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, within -- within the Eighth Amendment jurisprudence of -- of the evolution of -- of Eighth Amendment jurisprudence, we've seen hanging go by the wayside. We've effectively seen electrocution go by the wayside. As we advance as a society and as we advance within our knowledge of what's going on --
05-8794 +++$+++ 47214 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Precisely. And that's going to be true with every new protocol.
05-8794 +++$+++ 47215 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's an -- that's an evolution over time. It's --
05-8794 +++$+++ 47216 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You said there were other States. You mentioned California. There was a proposal by the State. It couldn't be executed. What was the experience -- you mentioned a couple of other cases where the particular combination of drugs was successfully challenged, but then the State did what?
05-8794 +++$+++ 47217 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In Mr. Brown's case in North Carolina, my understanding was -- is that the State had went and purchased a device to make sure that he was actually unconscious during the procedure and wasn't subject to the excruciating pain that's been detailed within -- within the briefs. That actually was challenged because Mr. Brown's attorneys didn't think that the -- the people that were monitoring the machine were properly trained. The court ruled against them, and as we know, Mr. Brown was -- was executed. It didn't result in the series of challenges as -- as many are obviously concerned about.
05-8794 +++$+++ 47218 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you agree that that was not a -- that method of execution is not a violation of the Eighth Amendment?
05-8794 +++$+++ 47219 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As far as using the machinery that was used in Brown?
05-8794 +++$+++ 47220 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
05-8794 +++$+++ 47221 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I don't know enough about -- about that machine to -- to accurately comment on -- on that. I know that the challenges that were brought in Brown wasn't necessarily regarding the machine itself, but it was the qualifications of -- of the people monitoring the machine and whether they had the authority and ability to intervene in the execution itself. And I believe that that was the challenge that was ruled upon by the court in Mr. Brown's case before he was executed.
05-8794 +++$+++ 47222 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you know of any method that has been used -- used throughout the country that is not a violation of the Eighth Amendment?
05-8794 +++$+++ 47223 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As far as -- as far as this particular protocol, this particular protocol that's -- that's utilized and that we're -- we're challenging is unconstitutional because of the excruciating pain. If the -- if the sedative works, and there's no -- and -- and the person is not in -- not in wanton and gratuitous type of -- of pain, as -- as this Court's precedents hold, that would be constitutional. It's the -- it's the evidence that's coming forward that this is not what's happening that gives rise to our claim that -- that we would like to be able to litigate in a 1983 action so that we can get those facts before the court.
05-8794 +++$+++ 47224 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it only excruciating pain that the Eighth Amendment prohibits or is it any pain? Does the Eighth Amendment require painless execution?
05-8794 +++$+++ 47225 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, absolutely not. It's -- it's that it's -- it's that it's wanton and -- and gratuitous pain.
05-8794 +++$+++ 47226 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, when you say wanton and gratuitous, you're -- you're saying any pain that can be eliminated must be eliminated. Otherwise, it's gratuitous I assume.
05-8794 +++$+++ 47227 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's -- it's gratuitous when it's beyond what's -- what's necessary, and whenever the --
05-8794 +++$+++ 47228 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. So if there's any way of -- of execution that is totally painless, that -- that must be pursued.
05-8794 +++$+++ 47229 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If there were a way to do that, I -- I would agree with that.
05-8794 +++$+++ 47230 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where -- where do you derive that from? I mean, gee, you know, that -- that was certainly never the principle evident in -- in executions in the past. Hanging was -- was not a -- you know, a quick and easy way to go. You would have thought they would have required a firing squad instead or something like that. I -- I just don't know where you're deriving this principle that there cannot be any pain associated with the execution.
05-8794 +++$+++ 47231 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
05-8794 +++$+++ 47232 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I can understand excruciating pain, but -- but you -- you want to press it to the point where there can't be any pain associated. Any pain that can be eliminated must be eliminated. That seems to me a very extreme proposition.
05-8794 +++$+++ 47233 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the -- what -- what we've detailed here in our complaint is an extreme and tortuous method of -- of death. At this point --
05-8794 +++$+++ 47234 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. I understand what you're challenging here. But what -- what alternative would be acceptable to you? Only one -- only one that -- that, to the maximum extent possible, eliminates all pain. Isn't that right?
05-8794 +++$+++ 47235 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, when you look at the -- when you look at -- at Morales and Brown, both of those that -- that were proposed were eliminating -- for instance, one of the options within Mr. Morales' case was that only the sodium thiopental be used eliminating the pancuronium bromide and the potassium chloride. The State of California, for -- for whatever reason, did not -- did not choose that and went, instead, and tried to use the same protocol and bringing in anesthesiologists that were properly trained and qualified to determine whether or not Mr. Morales was, in fact, anesthetized to -- to a degree where he would not feel that pain. That -- that is -- that is an example of a proper procedure being -- being come up with -- or being dealt with. As well, Mr. Brown -- and -- and thing is, is that for -- there's -- there's never been a requirement for -- for us to plead this. The reason being is -- is this Court's case law within -- for example, Lewis v. Casey shows the -- the strong deference that this Court gives to States in -- in coming up with the prison procedures. That's not an execution case, but here the Florida courts -- not Florida courts, but the Florida officials within the Department of Correction -- they know their facilities. They know what's capable of -- of being done there or not.
05-8794 +++$+++ 47236 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would it be -- if -- if in the future, if States specify the method of execution in the sentence, then you would not have a 1983 action. Is that correct? Because you would then be challenging the sentence, and it would have to be brought under habeas.
05-8794 +++$+++ 47237 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the particular protocol that was alleged in the sentence, yes, it would be ripe at that point in time as opposed to Florida's system where it's within -- it's within the discretion of the Department of Correction to change it at any time. We've seen that happen whenever the electric chair litigation was going on, that they changed these procedures over time, adding and detracting different things.
05-8794 +++$+++ 47238 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but -- but you -- you -- their procedure was set forth in a -- in a notice, a regulation or something. You -- you had notice of what procedure they intended to use several years ago, didn't you?
05-8794 +++$+++ 47239 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The only --
05-8794 +++$+++ 47240 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, you're saying they could change it in the future, but sure, of course. Any -- any agency can change its -- its regulations. But didn't you know that this is the procedure they intended to use several years ago?
05-8794 +++$+++ 47241 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. It was -- what they relied upon was what was -- what was detailed in Sims, which was 6 years ago. But with the -- with the discretion that Florida Department of Corrections has and that they've exhibited in the past, that they've utilized that discretion whenever we were having the electric chair litigation going on, we can't presume that. The added problem is --
05-8794 +++$+++ 47242 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you have to wait to -- you have to wait to the eve of execution before -- before you think you have a -- a ripe claim under -- under habeas.
05-8794 +++$+++ 47243 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under -- under Florida's scheme, yes, we have to wait because they have the complete discretion. We have no access to be able to get the public records. In fact, we've been denied throughout.
05-8794 +++$+++ 47244 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Congress has the complete discretion to change the statutes it's enacted, but that doesn't mean that you can't change -- you can't challenge a statute now because it might be changed before -- before the action you want to take occurs. You can challenge it now. And it seems to me it's the same thing with the method of execution prescribed by -- by an administrative agency in -- in a State.
05-8794 +++$+++ 47245 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If Congress has the situation set up that Florida does not engage in -- in rulemaking. They don't go through an orderly administrative process, taking public input and having people come and participate in that. It's totally --
05-8794 +++$+++ 47246 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what did they have? There was the Sims case. No -- no -- certainly not in the legislation. There's no rule that emerges. But you did know that there was a lethal injection procedure that had been prescribed for another prisoner, and yet you didn't challenge the lethal injection at that time. Why did you wait until so late?
05-8794 +++$+++ 47247 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because -- because that claim was not ripe at that time, because we didn't know what would be utilized whenever it came to Mr. Hill being executed. Our knowledge as to how Florida Department of Corrections utilizes that discretion has been that they actually used that discretion in the past. We have not been able to get any records post-Sims regarding their procedures, regarding the protocol --
05-8794 +++$+++ 47248 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Have they, in fact, changed the procedure for the lethal injection?
05-8794 +++$+++ 47249 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't have any public records to -- to be able to say one way or another. We were denied all public records whenever we were proceeding in State court.
05-8794 +++$+++ 47250 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ When did you ask for the public -- when did you ask for the -- a -- a statement of the protocol that would be used in your case?
05-8794 +++$+++ 47251 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was December the 8th is whenever it began, and then pursuant to the court's -- the trial court's order that was entered in that case, the State's response came on December 19th. The court ruled on December 23rd. The rehearing was denied on the 30th, and we filed our briefs in the Florida Supreme Court on January 3rd.
05-8794 +++$+++ 47252 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't understand. How did you get into the court if you didn't know what protocol they were going to use?
05-8794 +++$+++ 47253 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Once --
05-8794 +++$+++ 47254 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You say you didn't know it until the 19th when your case was already in the court. What -- what were you challenging?
05-8794 +++$+++ 47255 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What we -- what had happened is -- is whenever the -- whenever the death warrant was signed on November 29th, that put into play Florida Rule of Criminal Procedure 3.852(h)(3) which then entitles us to more records that we are not entitled to before a warrant is signed. At -- at that point, we filed our records request, and the trial court, indeed, put forth their order as to when everybody was to respond and have various pleadings in. We --
05-8794 +++$+++ 47256 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Excuse me. How did the trial court get into it? Does the records request go through -- through a trial court?
05-8794 +++$+++ 47257 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-8794 +++$+++ 47258 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what is the -- the action that you're bringing? An action for records request?
05-8794 +++$+++ 47259 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. It's under Florida Rule of Criminal Procedure. It's geared specifically to death-sentenced individuals as opposed to being -- we don't have available what's under Florida statute. Chapter 119 is not available to a death-sentenced inmate. So we must proceed through the 3.852 procedures, and that was not activated until the point in time that the warrant was actually signed. We filed other pleadings in the court that were denied regarding mental retardation, regarding a Roper claim, and various other -- other claims. Ultimately, we also filed in regards to the public records claim and us being denied the public records and the ability to assess the protocol. Florida --
05-8794 +++$+++ 47260 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May -- may I ask you to clarify one thing? I take it, at this point, there isn't any question about the -- the amounts and ingredients that will be used in -- if -- if the execution goes forward. But my recollection is that you said that your -- your request for a specification of this formula or protocol was denied by Florida. Did you ever, as a result of your records request or otherwise, get a statement directly from Florida to you that the following proportions of chemicals will be used?
05-8794 +++$+++ 47261 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Within the -- within the public records proceeding, it was referenced that it would be the same as -- as Sims. Florida Department of Corrections --
05-8794 +++$+++ 47262 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But until you went into that proceeding, I take it, you had asked Florida to specify and Florida said, no, it would not do so?
05-8794 +++$+++ 47263 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We had asked for the records and had requested the records that would specify and any written procedures and protocol, as well as the records from -- from prior executions. They fought that and prevailed in the trial court. And in the Florida Supreme Court, we had also sought records from the medical examiner that does the autopsies on executed individuals, as well as various other officials we thought might have information. We were -- we were given nothing and they objected to us receiving any records whatsoever.
05-8794 +++$+++ 47264 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did -- did you ever say to -- to any Florida official, please tell me what the chemicals are and the amounts that will be used --
05-8794 +++$+++ 47265 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We --
05-8794 +++$+++ 47266 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- not asking for records, just asking for a statement about what they were going to do?
05-8794 +++$+++ 47267 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it came forward at the -- at the hearing regarding the public records that it was going to be the Sims -- that it was going to be the Sims procedure.
05-8794 +++$+++ 47268 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I guess before you went into court with a public records action, did you ever say to somebody, tell us what you're going to do?
05-8794 +++$+++ 47269 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ By our public records request, yes. If -- if Your Honor is asking if I spoke to the --
05-8794 +++$+++ 47270 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- what I'm getting at is --
05-8794 +++$+++ 47271 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- Department of Corrections, no.
05-8794 +++$+++ 47272 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- there -- there are ways to find out. One would be to ask. One would be to chop the door down with an ax to find out if there's a statement hidden inside. Did you ever try the easy way and simply say to them, will you specify for us what you're going to do and how you're going to do this?
05-8794 +++$+++ 47273 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That was essentially done at the public records hearing on December 19th whenever they came in and said it was -- that it was Sims.
05-8794 +++$+++ 47274 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
05-8794 +++$+++ 47275 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- the thing is, is --
05-8794 +++$+++ 47276 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you -- you alleged in your complaint -- I'm looking at footnote 3 -- that you assumed they were going to follow the same protocol as in Sims.
05-8794 +++$+++ 47277 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because of their -- because of -- of the representations that were made during the public records litigation. That was based upon -- that was what we based our assumption on, knowing that they still had the ability to change it all the way up until the date that Mr. Hill was scheduled to be executed.
05-8794 +++$+++ 47278 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, they still do, but you're here. I mean, they -- they still have the opportunity to change it, but you're here challenging it even though it is still changeable. Right?
05-8794 +++$+++ 47279 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They -- yes. Because of the way Florida operates with the total discretion and -- and the refusal to give any public records regarding this, yes, we are in the dark regarding it. They could -- they could alleviate that situation by doing an administrative rulemaking process, that that rule is then in place, and with that rule in place, it would be ripe at that point because at that point they're constrained to follow the rule as opposed to having the liberty to -- to change the procedures as they -- as they deem fit at the last minute.
05-8794 +++$+++ 47280 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can I just clarify one thing for myself? Do I correctly understand that the Federal district court -- I'm not talking about the State court -- did not rule on the merits of your claim, but merely held that 1983 is not the proper method of pursuing the claim?
05-8794 +++$+++ 47281 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-8794 +++$+++ 47282 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that there hasn't been a decision by a Federal judge on whether or not there's merit to your case.
05-8794 +++$+++ 47283 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct.
05-8794 +++$+++ 47284 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's just a question of which -- whether you do it by way of habeas corpus or by 1983.
05-8794 +++$+++ 47285 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is -- that is correct, and it was recharacterized as -- as a successive habeas petition rather than a 1983 action.
05-8794 +++$+++ 47286 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I suppose it's entirely possible that if the judge then decided it is really -- if we said it should have been a 1983 action, the judge could say, well, okay, even under 1983 the State has the defense of laches and you still lose. I mean, you -- we don't know what's going to happen if we find out -- if we agree with what your argument in this Court is. Is that right?
05-8794 +++$+++ 47287 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would go back for -- for an analysis as to the equities of the situation, and -- and that being an intensely fact-bound procedure, the district court is actually in -- in a better position to go ahead and -- and be able to make that analysis there at the district court level, a Gomez analysis as to the equities that are involved within the situation. So as -- as we sit here today, there has not been any ruling on the merits of -- of this, and there hasn't been any evidence produced in -- in any court through testimony whatsoever regarding the issues of the protocol and -- and things of -- of that nature that we've been discussing here this morning. And I think that -- that whenever -- whenever you -- you look at -- actually if the Court doesn't have any more questions, I'm going to reserve the balance of my time.
05-8794 +++$+++ 47288 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. Ms. Snurkowski, we'll hear now from you.
05-8794 +++$+++ 47290 +++$+++ FALSE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The State is here today to suggest that the method that -- to challenge these claims is by habeas corpus, and that the Federal district court, as well as the Eleventh Circuit, was correct in finding that the district court had correctly found it had no jurisdiction because, in fact, it was a functional equivalent of the habeas corpus. But to -- to address some of the issues that were currently brought before the Court today with regard to the ability of the defendant to come forward and discern what exactly was the method by which Florida was intending to execute him, the record bears out that, in fact, the Sims case was in the public domain and, in fact, is the method by which Florida does execute individuals. There was --
05-8794 +++$+++ 47291 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there's no statute and there's no regulation that requires Florida to do that.
05-8794 +++$+++ 47292 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ These -- there is no specific statute. The statute itself merely says that lethal injection is the method by which Florida is to execute individuals. The Department of Corrections, through rulemaking process internally, provides protocols for the execution day and other protocols with regard to the execution team performing its function on that given day and -- and hours leading up to that. And that has not been changed nor modified, nor has it been challenged --
05-8794 +++$+++ 47293 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there is no statute, no regulation. That means the executive can do what it will. There's nothing that binds them to the way it was done in Sims' case.
05-8794 +++$+++ 47294 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct, to the extent that there's no statutory provision or regulatory rule because, in fact, under Florida -- the Florida legislature has exempted rulemaking of the Department of Corrections with regard to executions.
05-8794 +++$+++ 47295 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I suppose that's -- that's the complaint. If there was a procedure in place, we could address it. If Florida reserves to itself the ability to change at any time, well, that's -- we want to be told what it will be in our particular case so we have a target that we can aim at.
05-8794 +++$+++ 47296 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I understand that, but the State would contend that based on the fact that there have 16 executions since the time that Sims has occurred and all those executions have been performed exactly as the manner in which Sims has occurred, and that there has not been any challenge to a deviance from that, and in fact, the Florida Supreme Court has ratified again in this case, when Mr. Hill brought his Eighth Amendment claim, that Sims was the method of execution in Florida, I think we have a very reasoned determination that, in fact, the method of execution, as it has been proposed in Sims, is currently the method of execution that we utilize.
05-8794 +++$+++ 47297 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what he -- I -- I take it the ripeness issue is -- he delayed in bringing it because he wasn't certain what you'd do. And -- and one of the reasons, I think, would be that it's only recently there was an article in the Lancet --
05-8794 +++$+++ 47298 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
05-8794 +++$+++ 47299 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- that says the -- in the opinion of the doctors who wrote it, a significant number of executed people are conscious when they die, and that's painful. And then it's been suggested there are ways around that. Just give them more sodium pentothal or have a doctor or somebody there to make certain the individual is unconscious at the time that the death-causing drugs take effect. All right. Now, that doesn't seem too difficult. Maybe it's difficult, but it doesn't seem too difficult. So why can't they think, you know, Florida -- they can read there too. They have people who read these articles, and indeed, maybe they'll just do it. They don't have any real interest in -- in causing suffering. Why don't they just do it? And so he thinks, up until the last minute, that maybe Florida will just do it, and lo and behold, when the death warrant is actually executed, it now begins to appear that they won't. And therefore, at that time, he brings the case. Now, I've spun out a story which seems probable, but if it's true, it would be very understandable why this wasn't ripe before the execution warrant is issued and thereafter it is. Now, what is your reply on the ripeness question?
05-8794 +++$+++ 47300 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, my reply on the ripeness question is, first of all, that I don't believe that your scenario -- while I'll accept your scenario as your scenario, it is not accurate with regard to what occurred in Florida. But apart from that, there has not been a change and nor has there been any allegations by the defendant. He certainly, as you have indicated, could have read and, in fact, did read the Lancet article and made no statements with regard to his allegations --
05-8794 +++$+++ 47301 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- my -- my little story was inaccurate as to Florida or accurate as to Florida.
05-8794 +++$+++ 47302 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry?
05-8794 +++$+++ 47303 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is the kind of thing I was explaining why it would be ripe I think -- is that accurate enough for the purposes of ripeness as to what happened in Florida?
05-8794 +++$+++ 47304 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. And my answer, I would suggest to you, is no --
05-8794 +++$+++ 47305 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No.
05-8794 +++$+++ 47306 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- because I think it's part of the pleadings. I mean, he certainly had the wherewithal. If he felt that there was another manner by which it could have been changed or that the Department of Corrections, in this particular instance, was suddenly going to -- now aware of the Lancet article, would change its method, he has not made any allegations of that, nor has he asked. And that was one of the questions that was postulated to him, the fact that in -- that he never asked.
05-8794 +++$+++ 47307 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would he have to come up --
05-8794 +++$+++ 47308 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Excuse me.
05-8794 +++$+++ 47309 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- with, as you suggest, an alternative that would be acceptable? Suppose there had been a hearing and it was proved more probable than not that in some cases -- not in all, but in some cases -- use of this injection would cause excruciating pain. Would the Petitioner who is objecting being exposed to that have to come up with an alternative in order to avoid the risk of excruciating pain?
05-8794 +++$+++ 47310 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it seems to me, based on this Court's decision in Nelson, that that was the focal point of why relief was granted in the fashion it was, that it was a proper issue to rely in 1983 because, in fact, there might be a -- he had proposed a mechanism that might be alternative mechanism that was accepted by the government. In this instance, it's -- the record is silent and -- which goes --
05-8794 +++$+++ 47311 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, my question to you is -- I take it you're answering yes, that if they prove that some people will be subject to excruciating pain, that's not good enough unless the Petitioner proposes an alternative, that it's all right for the State to expose someone to the risk of what has -- what has been determined to be the risk of excruciating pain as long as the Petitioner himself doesn't come up with an alternative.
05-8794 +++$+++ 47312 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the answer is twofold. First of all, the fact that the articles out there reflect that there's a potential that that could happen, there's not been evidence that it has occurred or has happened, which has been necessarily what is the precursor to when there has been changes in the method of execution because there has been a history where, in fact, a botched execution has occurred no matter what the method may have been. The second part is that there has not be a -- a specific showing in this particular case, nor an allegation for that matter, that any kind of event in this particular case would, in fact, cause excruciating or any kind of pain --
05-8794 +++$+++ 47313 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, because there's been no hearing. We've never gotten past is this -- can you open the door through 1983, and I -- I still don't understand what your answer is to my question. Now, I'm supposing that we do have the 1983 hearing, and the judge says, yes, I agree with the Petitioner's experts. In some cases there will be excruciating pain. Then you say, but, Judge, they haven't come up with an alternative.
05-8794 +++$+++ 47314 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
05-8794 +++$+++ 47315 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the judge says, you're both right. Some people have excruciating pain, but there's been no alternative suggested. Bottom line of that particular case would be?
05-8794 +++$+++ 47316 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That, in fact, I think that he has to make some colorable showing of an alternative that would be acceptable to him based on the procedures because, again, the second prong of that seems to me --
05-8794 +++$+++ 47317 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So the answer is yes.
05-8794 +++$+++ 47318 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. I'm sorry.
05-8794 +++$+++ 47319 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The court, having found that some people will be subject to excruciating pain, still no Eighth Amendment violation because the Petitioner hasn't come up with an alternative.
05-8794 +++$+++ 47320 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-8794 +++$+++ 47321 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is the source of his obligation to do this? I mean, why does he have an obligation under the Eighth Amendment or under any other ground to tell the State how to execute people?
05-8794 +++$+++ 47322 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the Court in its Nelson opinion suggested that that was a means --
05-8794 +++$+++ 47323 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That -- that was a fact in Nelson, but my question to you is if -- if we were to agree with you and say that that, in fact, is a -- is an element of a 1983 action here, what would be the source of -- of the -- the conclusion that -- that he has to propose a less painful alternative?
05-8794 +++$+++ 47324 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I guess part of the source would be the fact that in overcoming the qualifications -- while maybe his pleading may be simple, the notion is that he has to overcome those things that may have happened in the past. For example, in this particular instance, whether in fact there's been any violation as to a -- a res judicata, collateral estoppel --
05-8794 +++$+++ 47325 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. But I mean, that's not -- that's not the issue. I'm not asking you about res judicata. I'm saying that if he comes into court and, as Justice Ginsburg suggested in her hypo, his experts demonstrate to the satisfaction of the fact finder that there will, in a certain number of cases, be excruciating pain, and he is at least within the risk of that, your response is we're still -- that is no grounds for enjoining the execution under 1983. We can still execute unless he comes up with a proposal for a less painful way of doing it. And what I want to know is, why does he have such an obligation? Why isn't it enough for him to show that there is a probability that he will suffer excruciating pain?
05-8794 +++$+++ 47326 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think for one point, it would be that, in fact, if the State had chosen or selected a method or a change in the modification of the method that was not acceptable to him, then we'd be still back at square zero --
05-8794 +++$+++ 47327 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. Justice Souter and Justice Ginsburg can protect their own questions. Part of that allegation in here is that the State wasn't forthcoming with the -- with -- with the information requested, and you're not very forthcoming with the answers. What is the source, what is the legal source, what is the precedent for the proposition that the -- that the condemned man has to come up with an alternative? What case do you cite? What principle do you cite?
05-8794 +++$+++ 47328 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The principle I'm --
05-8794 +++$+++ 47329 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's what we're asking.
05-8794 +++$+++ 47330 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. And I'm sorry that I was in any way disingenuous. But the bottom line is I think that Nelson is the bottom line source of -- of concern that we would bring forth to this Court that if, in fact --
05-8794 +++$+++ 47331 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it was mentioned -- it was mentioned in Nelson. But what would be the reason for -- for elevating that -- that fact in Nelson to a requirement? What is the legal principle that would support your argument?
05-8794 +++$+++ 47332 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the legal principle being that the individual who is coming forth and seeking to have the execution or requesting some relief -- he has to come forward with some evidence, some -- some body of law --
05-8794 +++$+++ 47333 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But isn't there evidence in -- I noticed the brief filed by some veterinarians call our attention to the statute that prohibits the euthanasia of dogs and cats unless they follow a certain procedure. So there must have been a legislative feeling that unless that procedure were followed, there's a risk of undue pain to the dogs and cats. Why isn't there a similar basis for believing that if you don't follow a similar procedure that such a risk might be present for human beings?
05-8794 +++$+++ 47334 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that -- that has been an allegation and that has been raised before the courts over the years with regard to that.
05-8794 +++$+++ 47335 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what's your response to it?
05-8794 +++$+++ 47336 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That, in fact, recent -- recent development -- and I mean, we're talking about an area that has not -- we have not gotten that far. We don't have a record.
05-8794 +++$+++ 47337 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But your procedure, if I understand it, would be prohibited to be applied to dogs or cats.
05-8794 +++$+++ 47338 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the procedure -- that procedure -- there is -- there is legal information or -- or scientific information out there that -- or -- refutes that, and that, in fact, there's a different mechanism and that's --
05-8794 +++$+++ 47339 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, at least it was sufficiently convincing to get the Florida legislature to pass a statute.
05-8794 +++$+++ 47340 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- that's correct, with regard to that particular aspect because it was one needle being used and all the drugs were being used in that needle. But that is, again --
05-8794 +++$+++ 47341 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, I would have thought your -- your answer to the line of questioning earlier was that the reason that the Petitioner has to come up with this -- an alternative is that otherwise it's plausible, at least, to suspect the reason he's bringing the action is as a challenge to the execution itself rather than the particular method. And that if it's a challenge to the execution itself, it has to be brought under habeas. If it's just a challenge to the method, it can be brought under 1983. If he's unwilling to say there is a valid method, then it starts to look like a challenge to the execution that has to be brought under habeas.
05-8794 +++$+++ 47342 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and that is the core position the State has taken, and I'm sorry if I did not articulate that in a fashion that --
05-8794 +++$+++ 47343 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in respect to that core position, I can understand the State's concern with the possibility of abuse. But in Nelson, what the Court says is it points to Gomez, and Gomez was a 1983 case. And there, the Court denied a stay of the execution because it looked into the history of the litigation, and they said that this particular individual had done just what worries you, though in a somewhat different context. He kept bringing the cases, and every time, you know, he'd lose. Then he'd think of another way of making the same point, and in your context, it would be first he challenges this method and he says there are others that are fine. So we go to another. Then he challenges that. Then he challenges that. Then he challenges that, always at the very last minute. So there's a case that provides a weapon if the abuse that you worry about occurs. So why do we need something else like an absolute rule of some sort that the Petitioner has to think of a method of execution, a matter on which he is not necessarily expert, that would turn out in the future to be not painful? I mean, you don't need to put on your overcoat and also turn up the heat.
05-8794 +++$+++ 47344 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
05-8794 +++$+++ 47345 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You've got the case that helps you if that occurs. Why do you need to argue for something else?
05-8794 +++$+++ 47346 +++$+++ TRUE +++$+++ MS. SNURKOWSKI +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, and the only reason we're arguing for something else, it seems to me that the basis upon which we are here today is to determine whether 1983 or habeas will lie. And apart from that, I'm trying to make an argument, to the extent I have or not, that -- that this is more in keeping with habeas as opposed to 1983 litigation. Thank you.
05-8794 +++$+++ 47347 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Shanmugam, we'll hear now from you.
05-8794 +++$+++ 47349 +++$+++ FALSE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: Where a prisoner challenges a particular method of execution but fails to identify a permissible alternative, that claim is functionally equivalent to a claim challenging the prisoner's death sentence per se and therefore must be brought --
05-8794 +++$+++ 47350 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is that? Why is that? That -- that -- in which case it would be like -- like Heck. Right? It would come within the Heck principles.
05-8794 +++$+++ 47351 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, our view is that the Heck principle is not applicable here where a prisoner is seeking relief that is indisputably available in habeas. Our view is that the governing precedent and really the touchstone here is this Court's decision in Preiser v. Rodriguez, which drew the distinction that the Court has long recognized between claims challenging the conditions of a prisoner's confinement and claims challenging the fact or duration of that confinement. Now, to be sure, that analogy is not exactly apt in the capital context. But we believe that where a prisoner identifies a permissible alternative, it is that which renders the claim --
05-8794 +++$+++ 47352 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well -- well, why? But I mean, suppose he doesn't. Okay? But it's absolutely clear he's not saying all methods are unconstitutional. He's saying this method is unconstitutional. If he says this method of constitutional and he wins, then his challenge will not necessarily prevent the State from carrying out its execution. And, of course, I'm reading to you directly from Nelson v. Campbell. That would seem right in point. And why isn't that the end of this case?
05-8794 +++$+++ 47353 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we do believe that where a prisoner brings an open-ended claim of the type at issue here, it would necessarily prevent the State from carrying out the execution in one relevant sense. Namely, it would prevent the State from carrying out the execution --
05-8794 +++$+++ 47354 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, and if I bring a claim that my prison cell is so cold, I actually get pneumonia and die, or near it, and then I challenge the coldness of the cell, I'm preventing my confinement in one particular way.
05-8794 +++$+++ 47355 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's exactly --
05-8794 +++$+++ 47356 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's a cold cell. And so that would similarly, on your theory, be habeas, but we know it isn't.
05-8794 +++$+++ 47357 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, no, I don't think that that's true, and I do think that the --
05-8794 +++$+++ 47358 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ My cold cell is habeas?
05-8794 +++$+++ 47359 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I think that the cold cell case clearly is a conditions of confinement claim. And let me explain to you, Justice Breyer, if I may, the reason that the identification of an alternative is so critical. It is the identification of an alternative that renders the claim the functional equivalent of a conditions of confinement claim because a conditions of confinement claim is really necessarily predicated on the assumption that the prisoner will continue to serve exactly the same sentence, even if the claim is successful. In your hypothetical, if a prisoner claims that his cell is too cold, the necessary implication is that the prisoner will be able to continue to be imprisoned at some higher temperature, even if the prisoner does not specify in his complaint that he wants to be held at 70 degrees or 72 degrees. And that is the reason why the identification of the alternative is so important.
05-8794 +++$+++ 47360 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why more than in Nelson?
05-8794 +++$+++ 47361 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in Nelson, it was important, and we would submit that it was really the dispositive factor in the Court's analysis. The Court noted the fact that the State had conceded -- the prisoner had identified and the State had conceded that an alternative method could be used to administer the execution.
05-8794 +++$+++ 47362 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I didn't -- I didn't get your explanation. Had you finished it?
05-8794 +++$+++ 47363 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. (Laughter.)
05-8794 +++$+++ 47364 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me try -- let me -- let me try again through a different route, though. Where a prisoner fails to identify an alternative, the risk here is that such a claim could delay and may, in fact, prevent the ultimate execution of the death sentence.
05-8794 +++$+++ 47365 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about the risks that the prisoner will die an excruciating death? I'm asking you the same question that I asked co-counsel. What happens then? He hasn't been able to come up with an alternative, but the judge finds it credible that he may be exposed to an excruciating death. What then?
05-8794 +++$+++ 47366 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in that case, he may very well have a valid Eighth Amendment claim. But our principal submission --
05-8794 +++$+++ 47367 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But would --
05-8794 +++$+++ 47368 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- is that he cannot proceed in a section 1983 action. Presumably what would happen --
05-8794 +++$+++ 47369 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why not? Because he's saying I am not asking for this to be one day further along. I'm just asking the State to give me a death that will not require me to suffer excruciating pain.
05-8794 +++$+++ 47370 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again, the concern with the claim that fails to identify a permissible alternative is the risk of seriatim litigation. And I think that the history not only of the Nelson case, but also of some of the ongoing litigation, most notably the Morales case in California, demonstrates that that risk is a very real one. Where a prisoner fails to identify an alternative method, it is not --
05-8794 +++$+++ 47371 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Except -- let me just interrupt. Supposing he did identify, say you can only use pentobarbital on me, the same way they do it for a veterinarian. And the -- and the judge says, well, I don't think that's required. But he would then be satisfied the 1983 requirement?
05-8794 +++$+++ 47372 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the State would at least have the option in that case --
05-8794 +++$+++ 47373 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of saying no.
05-8794 +++$+++ 47374 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of acquiescing in the alternative. The State would, of course, have the option of saying no and litigating it.
05-8794 +++$+++ 47375 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But do you agree if he had said I propose alternative X, even though it's highly unlikely the State will accept it, that would make it a 1983 action?
05-8794 +++$+++ 47376 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would make it a 1983 action. And the critical point, as this Court recognized --
05-8794 +++$+++ 47377 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even though there's no functional difference in terms of future litigation between that case and this.
05-8794 +++$+++ 47378 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the only reason that there would be no functional difference is if the State chose to, in fact, litigate the issue, notwithstanding his identification of the permissible alternative. And in Nelson --
05-8794 +++$+++ 47379 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you're saying -- saying then that the defense bar, the capital punishment bar, and the prisoners are the group of people that have to go and do the research on humane methods of putting people to death rather than the government.
05-8794 +++$+++ 47380 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I --
05-8794 +++$+++ 47381 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That strikes me as a little odd, doesn't it?
05-8794 +++$+++ 47382 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- I would -- I would respectfully submit, Justice Breyer, that that is exactly the kind of research that they would have to do in order to bring the claim in the first place.
05-8794 +++$+++ 47383 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why?
05-8794 +++$+++ 47384 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't think -- I don't think that's the research they would do. I think the research they would do would be to come up with another method that the State certainly would not find acceptable, thereupon, rendering it a 1983 action and -- and leaving everything in the same status that it's -- that it is here. I mean, I don't see that you've accomplished anything by simply demanding that they -- that they come up with an alternative. They're going to come up with a -- with an unacceptable alternative.
05-8794 +++$+++ 47385 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the alternative at a minimum has to be --
05-8794 +++$+++ 47386 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It -- it might be malpractice not to come up with -- with an unacceptable alternative. (Laughter.)
05-8794 +++$+++ 47387 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At a minimum, the alternative has to be one that is permissible under currently governing law.
05-8794 +++$+++ 47388 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Old age. They'll come with that alternative, old age. Right? (Laughter.)
05-8794 +++$+++ 47389 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that would not -- presumably that would not be a method of execution at all.
05-8794 +++$+++ 47390 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This -- this is a death case. It was not that amusing. Let me ask you this. Doesn't the State have some minimal obligation under the Eighth Amendment to do the necessary research to assure that this is the most humane method possible? Doesn't the State have a minimal obligation on its own to do that?
05-8794 +++$+++ 47391 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure whether it -- it would have an obligation to use the most humane method under the Eighth Amendment because this Court's cases have only suggested that the gratuitous infliction of pain is barred by the Eighth Amendment. I'm not aware of any cases --
05-8794 +++$+++ 47392 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I can define gratuitous -- I don't have the dictionary here. But gratuitous means essentially unnecessary. If there were other -- other means, other alternatives, that might be used, it seems to me that the State might have some minimal obligation to investigate those.
05-8794 +++$+++ 47393 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think more broadly, Justice Kennedy, that one reason that States do have discretion in this area -- and I think that Florida is not unusual in that regard -- is that prison officials are expected to adopt to evolving methods of execution and to take into account changes that might suggest that a particular method is problematic. And so whether or not there is a constitutional obligation, I think that there is every reason to think that States will, in fact, do that. I think that it is noteworthy --
05-8794 +++$+++ 47394 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But is there -- is there in this case? I mean, the Lancet article has been out there for a while, and it certainly is enough to suggest, in your words, that there is something problematic about the manner in which Florida proposes to do this. And yet, we have not heard a word that Florida has made any effort whatsoever to find an alternative or, for that matter, to -- to disprove what the Lancet article suggests. And so it's one thing for you to say the States have discretion. I don't think that answers Justice Kennedy's question as to why the State does not have an obligation to fulfill its constitutional duty to execute without gratuitous pain. And I don't see why you have given any answer to -- to the proposal that that obligation requires the State to do some investigation of it's own.
05-8794 +++$+++ 47395 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, whether or not the State has that obligation -- it may very well have that obligation as a constitutional matter, but putting that to one side, it does seem as if the critical question is whether or not the State, in fact, has adopted a method that inflicts cruel and unusual punishment, and where a prisoner has a claim of that variety, a prisoner has other options if the prisoner is unwilling to identify a permissible alternative to bring that claim besides --
05-8794 +++$+++ 47396 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We've -- we've never held that anyway, have we?
05-8794 +++$+++ 47397 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And the Court has never held that.
05-8794 +++$+++ 47398 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That the State must, in -- in imposing the death penalty, use a method that inflicts the least amount of pain.
05-8794 +++$+++ 47399 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Court has not held that. Instead, it has --
05-8794 +++$+++ 47400 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And presumably there's some range between most humane and what's cruel and unusual. Right?
05-8794 +++$+++ 47401 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that that is presumably true, based on the formulations that this Court has used which have repeatedly focused on the gratuitous or wanton infliction of pain as opposed to the least painful method.
05-8794 +++$+++ 47402 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Shanmugam, several of the emergency death proceedings we've had involving this question, the district court judges have assumed that it could proceed under 1983 but then denied relief because it was brought on the eve of execution, as this one was. Is that option available to the district court in this case if it's sent back?
05-8794 +++$+++ 47403 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is available to the district court, and indeed, it would potentially be available even to this Court as a matter of first instance as it was in the Gomez case. Thank you.
05-8794 +++$+++ 47404 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Doss, you have 5 minutes remaining.
05-8794 +++$+++ 47406 +++$+++ FALSE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You know it -- it is true that the 1983 is a civil action, and the plaintiff has the burden of proof, burden of producing evidence.
05-8794 +++$+++ 47407 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is true. That is true, and we would be prepared to do that if we were allowed to go back and -- and proceed. We have produced evidence at the -- at the pleadings stage, and as we sit here today, since there hasn't been an answered filed, our -- our pleadings are -- are accepted as -- as true for -- as a matter of procedure. The interesting thing is, is that -- is that Florida created this problem. They can -- they can lay it out as to how to euthanize dogs and cats, but they can't do it for humans. That's perfectly in the open. Yet, they shroud this in secrecy. We can't get public records. We can't -- 3.852(h)(3) of the Florida Code of Criminal Procedure prevents us from going and getting these records before --
05-8794 +++$+++ 47408 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you think there was adequate time for the district court to fully consider the evidence you intended to present and consider your claim and still proceed with the execution that was scheduled?
05-8794 +++$+++ 47409 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
05-8794 +++$+++ 47410 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You filed your case 4 days before the execution.
05-8794 +++$+++ 47411 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, but we were put in that posture by -- by the way the State of Florida has chosen to -- to vest this total discretion, shroud everything in secrecy, and then complain that we didn't bring it earlier when we --
05-8794 +++$+++ 47412 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The Sims protocol was there as a matter of public domain. You said in your complaint yourself, when you didn't get any information, you said, well, I assume they're going to follow Sims. Why wasn't that assumption valid 3 months before, 6 months before, or a year before?
05-8794 +++$+++ 47413 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because at that point, I knew that they had total discretion. I knew that before they had changed their protocols when the electric chair litigation was going on. Indeed, the Florida legislature changed the entire statute when this Court accepted Mr. Bryant's case --
05-8794 +++$+++ 47414 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it seems to me that you might -- you might have alleged that -- that you've read articles, Lancet articles, and so forth, and that there is a substantial risk that they're going to do this. I think that might suffice.
05-8794 +++$+++ 47415 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That --
05-8794 +++$+++ 47416 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and it would -- it would mean that the -- as the Chief Justice indicates, the court has more time to look at this.
05-8794 +++$+++ 47417 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As far as -- as far as the -- the ripeness issue, it's not -- because of the way Florida chose to do their procedure, it was not ripe, and it doesn't comport with this Court's basic ripeness doctrine that we are going to presume it's going to be done a certain way when the State can come in and say, it's not ripe for review, we -- we still have the ability to change this rather than us coming --
05-8794 +++$+++ 47418 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose you -- suppose you never were told by Florida what the -- how exactly it was going to be done. Does that mean you never could have brought a 1983 claim even on the day -- the scheduled day of execution?
05-8794 +++$+++ 47419 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If they -- if they never told us, I guess we would be in -- in a position of -- of assuming Sims is in place. But the thing is, is that it's an equitable -- it's an equitable argument. And Florida is not coming forward with clean hands. They created this and then they just want to say, well, you should have known. We're not going to do anything to help you. We're going to shroud this in secrecy and not tell anybody.
05-8794 +++$+++ 47420 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose -- suppose they did set it forth but reserved the right to change it. They promulgated a regulation without public notice, without hearings or anything. This is our regulation. This is how we intend to conduct executions in the future. Period. We reserve the right to change this. Would you claim that -- that this was not ripe? You couldn't challenge it at that point --
05-8794 +++$+++ 47421 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At that --
05-8794 +++$+++ 47422 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- because they could change it?
05-8794 +++$+++ 47423 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If Your Honor -- if Your Honor's fact situation includes a presumption that that's going to be the presumed method, I think at that point, yes --
05-8794 +++$+++ 47424 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. This is the current method that we intend to use in all future executions. Period. We may change our mind.
05-8794 +++$+++ 47425 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ At that point, yes, because they -- they are stating that they intend upon using that rather --
05-8794 +++$+++ 47426 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Don't -- don't you think you -- you --
05-8794 +++$+++ 47427 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- rather than playing hide the ball.
05-8794 +++$+++ 47428 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- don't you think effectively had that knowledge when you knew -- knew about Sims and you knew about all of the cases after Sims? Is that very much short of -- of their saying this is the -- the procedure we intend to use?
05-8794 +++$+++ 47429 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely not. We only knew about Sims. We asked for records regarding all the executions since Sims. We have not received it.
05-8794 +++$+++ 47430 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I understand your -- your argument to be -- and I don't think you're making it here, but I understood your argument elsewhere to be we knew about Sims, but when they stonewalled us and said we won't tell you what we're going to use, we had reason to question whether they were going to follow Sims. Isn't -- isn't that your point?
05-8794 +++$+++ 47431 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and that only came into play at the point --
05-8794 +++$+++ 47432 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. You alleged the exact opposite in footnote 3. You said when they stonewalled you, we assumed they were going to follow Sims.
05-8794 +++$+++ 47433 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They stonewalled us only after the warrant was signed because we couldn't do anything at -- at the point before the warrant was signed to be able to try to -- to gather evidence as to what it was going to be. And we were never --
05-8794 +++$+++ 47434 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Finish.
05-8794 +++$+++ 47435 +++$+++ TRUE +++$+++ MR. DOSS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- we were never told that. And because the way Florida has created their system, we were prevented from doing that. Thank you.
05-8794 +++$+++ 47436 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
05-8820 +++$+++ 47440 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear arguments next in Lawrence V. Florida. Ms. Bonner.
05-8820 +++$+++ 47442 +++$+++ FALSE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Mr. Lawrence in this case made an application for relief in the state courts of Florida, that unfortunately was denied to him, the relief that he sought. Consequently, he came here to the United States Supreme Court on a certiorari review and the certiorari, although it was denied, he did present to this Court an issue on which it could have acted had it chosen to act. It is well within the power under 28 U.S.C. 2104 for this Court to modify, vacate, remand. In other words, this Court can and could have affected that judgment. Our position is that this -- there is a distinction between the, quote, "appellate jurisdiction" under 2104 and the original writ of certiorari which would lie in this Court in some instances. When one uses the appeal, one is not making a new application. We respectfully suggest that the utilization of the emphasis in 2244 should be on application and what was before this Court on petition for certiorari was the application, the document, the issues, which had been presented below in the Florida courts and this Court was sitting to determine whether it would --
05-8820 +++$+++ 47443 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It would presumably, though, be limited in some ways. For example, if the application for state post-conviction relief raised arguments under state law, those would not be a proper subject of a petition for certiorari.
05-8820 +++$+++ 47444 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely not, Your Honor. And the issues which were raised were the same ones that were raised in the state court and were of constitutional dimension that Mr. Lawrence raised here. But our point is if the emphasis is on the application, then until the finality of action on the application --
05-8820 +++$+++ 47445 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're saying the application is the application -- the petition for certiorari is the application?
05-8820 +++$+++ 47446 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, sir. I'm saying the application under 3850 in Florida state trial courts, which then goes to the Florida State Supreme Court, is the application upon which this Court would be acting. If it were not acting on that, what would it be acting on?
05-8820 +++$+++ 47447 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, we can't act on it unless, unless it's final. We, we need final action by the state court, don't we?
05-8820 +++$+++ 47448 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, except --
05-8820 +++$+++ 47449 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How can it be final action and yet still be pending?
05-8820 +++$+++ 47450 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To utilize the word "final" there would be -- we can use the word "final" after a jury determination and that in one effect, in one sense, is final. And when Florida is done it's final in some sense. But it's not final under 2104 because this Court can modify it, can remand it.
05-8820 +++$+++ 47451 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's final as far as the application for state review is concerned.
05-8820 +++$+++ 47452 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There -- it is the --
05-8820 +++$+++ 47453 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which is the text that we're dealing with here.
05-8820 +++$+++ 47454 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. It is the application for state review which comes before this Court. We're asking you to review the lower court's rulings on the application.
05-8820 +++$+++ 47455 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I take it you're talking about language, if I followed it, in 2244(d)(2).
05-8820 +++$+++ 47456 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, sir.
05-8820 +++$+++ 47457 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it tolled the statute while the "properly filed application for state post-conviction or other collateral review is pending." So the question is during the 90 days after they said no to you in the state court and you had a chance to file the writ, is that application pending? And you say yes, that application is pending, that application is pending and subject to various motions, such as a motion or a petition for certiorari.
05-8820 +++$+++ 47458 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, sir.
05-8820 +++$+++ 47459 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it is pending.
05-8820 +++$+++ 47460 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, sir that is --
05-8820 +++$+++ 47461 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's where we are in this argument.
05-8820 +++$+++ 47462 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is exactly our position.
05-8820 +++$+++ 47463 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you.
05-8820 +++$+++ 47464 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That this application is pending.
05-8820 +++$+++ 47465 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Of course, the other way to read the language is that the state application is final -- otherwise you couldn't file the Federal petition for certiorari, and that petition may affect what happens with your application for state relief, but the state application itself is final and over.
05-8820 +++$+++ 47466 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In that sense it is not final in that it can be altered and that this Court can order --
05-8820 +++$+++ 47467 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it has to be final before you can file a petition for cert.
05-8820 +++$+++ 47468 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, sir. It's the vagaries of the use of the language --
05-8820 +++$+++ 47469 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does it say that? I would have thought it said that there has to be a final judgment of the lower court, and the final judgment of the state court concerns that application which is still pending and will continue to be pending at least for 90 days in your view.
05-8820 +++$+++ 47470 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-8820 +++$+++ 47471 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it doesn't require a final state application. It requires a final judgment about the state application.
05-8820 +++$+++ 47472 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that's exactly true, sir.
05-8820 +++$+++ 47473 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So what about the argument raised by your friend that exhaustion doesn't require filing a petition for certiorari, that the state procedures are considered fully exhausted upon the final decision in the state court and that it makes sense to treat this, this 2244, in a parallel way with respect to the exhaustion requirement?
05-8820 +++$+++ 47474 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, first of all, it would require this Court to substitute the word "exhaustion" for the word "pending" in the statute. There is no reason to believe and there is much reason not to believe that Congress intended exhaustion has a concept which should be read into this particular context in which we're dealing. In point of fact, in the 1995 proposal for habeas reform the word "exhaustion" was in there. It was taken out in 1996. Unfortunately, the Congressional history and the speeches on the floor, etcetera, are not really illuminating, except the concept of exhaustion apparently the legislature, the Congress, felt would be subject to interpretation differently in different states.
05-8820 +++$+++ 47475 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How do you know what is pending with respect to when the state defendant, movant, doesn't file a petition for certiorari? Is that --
05-8820 +++$+++ 47476 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I believe.
05-8820 +++$+++ 47477 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is the state post-conviction application still pending on the 90th day?
05-8820 +++$+++ 47478 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe it is, Your Honor, and I think the logic that this Court has used in the context of 2255's obtains as well, and it -- it is pending because the reason that we have 90 days -- it's an unusual amount of time that we have to come to ask this Court for relief. And I believe that part of that time and part of the reason for the existence of that is that we can contemplate whether we should be filing a petition for certiorari.
05-8820 +++$+++ 47479 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, anybody who wants the additional time -- this law was passed to prevent people from delaying. But anybody who wanted to delay would then have to file a cert petition, I assume?
05-8820 +++$+++ 47480 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would suggest to you, Your Honor, that it should be -- this should be construed the same way that the finality of a state conviction, the finality of a Federal conviction, and the finality of a 2255 are determined, and that is at the time that either this Court has dealt with certiorari by denying or granting it or that 90 days has, has been --
05-8820 +++$+++ 47481 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if you filed -- so you say you get 90 days whether you file or not?
05-8820 +++$+++ 47482 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I do, sir.
05-8820 +++$+++ 47483 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if you want the additional time that it takes for an opposition, for waiver of response, for this court to dispose of it, then you have to file a petition for cert?
05-8820 +++$+++ 47484 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't -- that is not my position, Your Honor. I believe that the 90 days should obtain no matter what so that we'll have a universal rule.
05-8820 +++$+++ 47485 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right.
05-8820 +++$+++ 47486 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that practitioners will not be making this error because they will be acting in concert --
05-8820 +++$+++ 47487 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the Chief's point is that if a petition is in fact found it will end up being more than 90 days because then you would have, in addition to the 90 days you'd have to file the cert petition, the time it takes for this Court to dispose of the petition, and the statute of limitations would be tolled throughout that entire period, not just a fixed 90 days.
05-8820 +++$+++ 47488 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is true, ma'am.
05-8820 +++$+++ 47489 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you -- does your argument mean that a defendant who wanted to file within the 90 days, wanted to file in the district court, wanted to file the habeas application in the district court within the 90 days, couldn't do so because it would be premature because the, the state application is still pending?
05-8820 +++$+++ 47490 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that the way that we have been seeing the opinions come from this Court and from the various courts around the country are that there seems to be a favorable disposition to protective 2254, 2255 petitions. I agree with the premise of Your Honor's question that it would be pending and it would be pending here and therefore, you should not go to district court and file a 2254. Now whether you can and you can do it in a protective fashion is another entire issue which isn't really raised here because he did seek certiorari review.
05-8820 +++$+++ 47491 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you read the tolling provision in 2263(B) the same way as you read the tolling provision that's before us?
05-8820 +++$+++ 47492 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Certainly I do not. And the state really did not analogize to 2263 as I believe perhaps they should have analogized to it. 2263 of course is the opt-in provision which moves things along on an even quicker track than a one year, and you have 180 days to file, and the Congress was absolutely clear and this was enacted at the same time that the provisions at issue were enacted, that it was 180 days after final state court affirmance and you had to, you had to file. That's it.
05-8820 +++$+++ 47493 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think Congress really wanted to have two different, entirely different tolling concepts in these provisions?
05-8820 +++$+++ 47494 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think they did, and one of the reasons that I believe that they did, number one was to achieve their goal of moving things faster if the states were able to guarantee counsel, and the second is that they told, as well, in 2263(B) the main difference between 2263(A) and (B)(1) is that the time when you're getting your certiorari petition ready for this Court under the opt-in provision is not tolled. But the time when this Court is considering the post-conviction certiorari request is tolled. It's tolled clearly by statute. I cannot presume and would not presume that what Congress did was write these in numerical order and when it got to 2263 come up with a new and exciting idea, and then not go back to 2254 and 2244 to change the language there. I think Congress meant something different. And what it meant was the trigger time, the time that was going to be elapsing between the petition, between your final decision and when you could go to certiorari.
05-8820 +++$+++ 47495 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You know, what about 2244(D)(1)(a) where Congress referred expressly to the time for seeking direct review or the expiration of the time for seeking such review? Your reading of D(2) is that that's what they meant when they said the state application was pending. The state application or the time for seeking review of the state application, and in -- just in just a few sections above that they expressly said that shouldn't we read pending in a different, different direction?
05-8820 +++$+++ 47496 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the distinction, I have at least two things to say about that. The distinction between the two sections, that would be (D)(1)(a) and (D)(2), one is dealing with one thing, a judgment which has reached finality and it is determining when that judgment is final. They would have had to rewrite the tolling provision because it is not speaking about a judgment. It is speaking about an application which is a process. And the second thing is that --
05-8820 +++$+++ 47497 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, they would have just said during the time of the application for state post-conviction, or the expiration of the time for seeking review of it.
05-8820 +++$+++ 47498 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that Congress is presumed to have read, written its laws knowing the history of interpretation of this Court. And pending has a very long tradition and this Court's role in the state-Federal continuum obviously is of well defined 200 plus-year-old role, and the part of that role is that you as this Court are the final arbiters and the only true people who can make the decision about what the Federal Constitution says. The state would have you read this as if it says application for state post-conviction relief is pending in the state court. I would be hesitant to rewrite the statute since Congress did not invite me to do so as the state has actually done by saying, pending in the, in the state court. And that is not the concept that we have lived with for 200 years or 200- plus years. Pending means until it is, cannot be any longer acted upon, and it is clear here, you as this Court can upon it.
05-8820 +++$+++ 47499 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think the final, the judgment in the criminal case is still pending because it can be acted upon?
05-8820 +++$+++ 47500 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not the judgment in the criminal case, but I would suggest that the judgment in the 22 -- I mean the 385.1 procedures in Florida which would be that post-conviction application because that's where we are. We have reached finality on the, after this Court has had, after we have either come to this Court for certiorari or the 90 days is exhausted.
05-8820 +++$+++ 47501 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Are you saying, are you arguing that there, during this period, there is an application for state relief pending in the state courts or that there is an application for state relief pending in this Court?
05-8820 +++$+++ 47502 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I am saying that the application in state court is yet pending when it is here, because that court can be ordered by --
05-8820 +++$+++ 47503 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where is it pending?
05-8820 +++$+++ 47504 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- this Court to act upon it.
05-8820 +++$+++ 47505 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where is it pending?
05-8820 +++$+++ 47506 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is pending still in state court because this Court can order that court.
05-8820 +++$+++ 47507 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought your argument on brief was that it is pending here and the statute says pending. It doesn't say pending, as your statute, you compared it with says. That pending, the application is pending someplace. Where is it pending? Not in the state court anymore. They have reached their final judgment, but it's still pending in your case here because you filed a petition for cert.
05-8820 +++$+++ 47508 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, ma'am. It just is, also, I -- there is some case law which speaks to the fact that it remains pending or unsettled or unsure or unfinal when a court can order another court to act on it.
05-8820 +++$+++ 47509 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In the same sense that it is pending after the trial court has acted but before the defendant or the petitioner decides whether he wants a state appeal.
05-8820 +++$+++ 47510 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, sir.
05-8820 +++$+++ 47511 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't know where it's pending. Whether it's still pending in the state trial court or in the state appeals court. But nobody denies that it's pending. And I understood your argument to be, whatever mending means there, pending means here because there is no modifier that would limit the same -- the same construction.
05-8820 +++$+++ 47512 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. That is -- that is so, sir.
05-8820 +++$+++ 47513 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But in what sense is it an application for state post-conviction review when it's pending before us? We are considering a claim that the state erroneously decided a Federal question --
05-8820 +++$+++ 47514 +++$+++ TRUE +++$+++ MR. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You are --
05-8820 +++$+++ 47515 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- but it's not an application, it's an application for our review, not state post-conviction review.
05-8820 +++$+++ 47516 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It began as a complaint. This is, analytically, everyone seems to have a little bit of pause because of exactly the context of your, of your comment, of your question. But there is only one lawsuit, complaint, whatever you wish to call it, which we are dealing with, and that is the one that seeks post-conviction relief in Florida. If you're unsuccessful there, you go to the Florida Supreme Court and that same application is what we come to this Court on. There is nothing else out there. The state seems to tell us, or suggest to us that it's some kind of an independent state -- uh, Federal action.
05-8820 +++$+++ 47517 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's a Federal writ, isn't it? It's an application for a Federal writ. It's not an appeal in state criminal -- state case.
05-8820 +++$+++ 47518 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it comes under this Court's appellate jurisdiction versus its original jurisdiction for writs of certiorari.
05-8820 +++$+++ 47519 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If you succeed you're going to get an order from this Court to the state court say, saying, go back in this state proceeding that has been begun, and do it right. So the focus of it is still the state proceeding even though we may correct it under appellate jurisdiction.
05-8820 +++$+++ 47520 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, sir. The state brings forward an argument that this certiorari before this Court is not a part of, not an integral part of and in fact not any part of the state process. I believe they come to that conclusion because they insert what they wish the statute said, rather than what the statute actually says, and we are attempting as best we can to interpret what Congress did not, what you wish it did.
05-8820 +++$+++ 47521 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you have any, I suppose this, we ought to know better, but how long the average disposition time is for a petition for certiorari in a case like this?
05-8820 +++$+++ 47522 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe it's like 44 days if you don't --
05-8820 +++$+++ 47523 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. From the time of, I suppose the pertinent question would be from the time of final state, final state judgment, eventual filing for petition for cert, opposition, waiver, our disposition? Presumably, probably five or six months?
05-8820 +++$+++ 47524 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's not usually that long. This Court is very efficient with that. And that's one of the points --
05-8820 +++$+++ 47525 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, why don't you take, let's just if say you take 90 days, and you get --
05-8820 +++$+++ 47526 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You get 42 or so.
05-8820 +++$+++ 47527 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you get a two month extension.
05-8820 +++$+++ 47528 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-8820 +++$+++ 47529 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then you get another month for the opposition depending on what circuit you're from for the extension. Get another month for the opposition, at least two months, month and a half, for us to dispose of it. It probably comes out to about six months.
05-8820 +++$+++ 47530 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It could, Your Honor.
05-8820 +++$+++ 47531 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now I guess -- my question is, in a law that imposed a one-year statute of limitation, is this an implicit additional, I realize it's a question begging to some extent, but implicitly an additional six-month period would strike me as odd.
05-8820 +++$+++ 47532 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, it is not a one-year statute of limitations per se. That may be what looks good on paper with the writing of the statute and the expressing of the statute to the public, that one year is what's going to happen. But when one takes into account the exhaustion requirement and takes that time out, we are still not talking about a 365-day process.
05-8820 +++$+++ 47533 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let me ask on that, Ms. Bonner, what typically in Florida is the time elapsed between the conclusion of the criminal proceeding and the conclusion of the state collateral relief?
05-8820 +++$+++ 47534 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's quite a while. Your Honor. I wouldn't know the average.
05-8820 +++$+++ 47535 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it's more than six months, I assume.
05-8820 +++$+++ 47536 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's a long time, Your Honor. And --
05-8820 +++$+++ 47537 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Two, three, four, five years.
05-8820 +++$+++ 47538 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, sir.
05-8820 +++$+++ 47539 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And all that time, the statute has been tolled?
05-8820 +++$+++ 47540 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly, till it's -- that's why I don't look at exactly --
05-8820 +++$+++ 47541 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The question is whether there may be another six months added on to that five or six-year period.
05-8820 +++$+++ 47542 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, sir. And one of the important things here is --
05-8820 +++$+++ 47543 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the reason that's tolled is because it's designed to encourage the exhaustion of the state procedures. This additional period is when it's pending, not before the state but before a Federal court.
05-8820 +++$+++ 47544 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it's the state petition which is pending for your review. And one of the things I want to point out is that the 90 days, when they passed habeas reform, they were not speaking about 30 days, 20 days, 60 days, 90 days or even the six months that Your Honor posits. It was 10 years, 12 years, 14 years. And that was I think the major impetus to encourage the Congress to put the 365 day on there. This Court has complete control over the certiorari process. You know, being lawyers we always do file at the last minute, but of course it's this Court's rules which gives us the 90 days versus another period of time. It is, the petition for certiorari is not like a notice of appeal, because it's not just a one-page document that's laid out in the Federal statutes for us to do. It's an application to, it's an application for review and it is, it takes some time to fashion.
05-8820 +++$+++ 47545 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Any -- any statistics on how many petitions for cert from state post-conviction collateral review are granted? In other words, if we are talking about an additional six months in every case, how many of those are actually granted?
05-8820 +++$+++ 47546 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know how many are granted, Your Honor, but one thing that struck me as I was reading through these cases is that many are granted to the state. And of course, when the state goes to certiorari from post-conviction, from a post-conviction loss on its side, then the whole process is turned on its head, and many, many times this Court has granted certiorari to the state. And that is another problem that happens with this tolling if you read pending the way the state wants you to read pending, because what do we do then? What do people do?
05-8820 +++$+++ 47547 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but if the state is petitioning for cert it means you've won.
05-8820 +++$+++ 47548 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It means you've won.
05-8820 +++$+++ 47549 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So presumably you're not looking forward to further --
05-8820 +++$+++ 47550 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. But what happens to the time? How do you count that time if you lose here?
05-8820 +++$+++ 47551 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I suppose you'd have to file a protective petition with the district court saying we won but we might still lose.
05-8820 +++$+++ 47552 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I guess. And - you know, a protective -- to litigants, protective and to district court judges, I believe and state court judges, protective petitions are kind of anathema, because since you don't know what you're going to raise -- and in the 2254 you have more of an idea, certainly, because you're limited in many instances if not all instances to those things which were exhausted -- but obviously there are new claims that are brought up because there would not be a stay and abey. There would not even be a request for stay and abey if there were things that the Federal courts find.
05-8820 +++$+++ 47553 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Assuming you make the same argument you make on questions 2 and 3 about the availability of equitable tolling.
05-8820 +++$+++ 47554 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry. I didn't --
05-8820 +++$+++ 47555 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I would be very surprised if the court found you were out of time because the state had filed a petition for certiorari.
05-8820 +++$+++ 47556 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd be surprised --
05-8820 +++$+++ 47557 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And have it granted.
05-8820 +++$+++ 47558 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'd be surprised too, but I've practiced a long time and I've seen some very odd things happen in courts and, both a stay and abey, and the other procedures that have been discussed by this Court have not been handed down as mandates to the lower court to require the lower court to rule in a certain way, or to absolutely stay, or to entertain protective motions and then permit those protective motions to be supplemented at a time later. If Your Honors do not mind, I will reserve some time.
05-8820 +++$+++ 47559 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, counsel. Mr. Kise.
05-8820 +++$+++ 47561 +++$+++ FALSE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Petitioner's case amounts to no more than a disagreement with AEDPA's recognized policies and procedures, and an improper attempt to convert ignorance of settled law into an extraordinary circumstance warranting equitable relief. AEDPA's plain language and recognized purpose is established, that tolling does not extend to the post-conviction certiorari process. Additionally, ignorance of settled law whether by an incarcerated pro se petitioner, by private counsel, or by appointed counsel is not an extraordinary circumstance and does not excuse prompt filing.
05-8820 +++$+++ 47562 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Kise, can I ask you what your view in this matter would be if the Court grants certiorari, would the application be pending during the period that the case is under advisement in this Court?
05-8820 +++$+++ 47563 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. And I'm assuming your question is asking me, grant certiorari based on an application filed by the petitioner.
05-8820 +++$+++ 47564 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Either way.
05-8820 +++$+++ 47565 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in both circumstances the answer would be no, and in both circumstances I think the relief that would be accorded --
05-8820 +++$+++ 47566 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me ask a second question. Suppose it were reversed, we send it back for further proceedings in the state trial court, would you say that it's still not pending during the further proceedings?
05-8820 +++$+++ 47567 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It may be pending in state court during the further proceedings, but it's not pending during the time that it is at this Court, because this Court has not --
05-8820 +++$+++ 47568 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it started pending again after an interruption, is that the way it would be?
05-8820 +++$+++ 47569 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Based on equitable principles, I think that would be the interpretation, yes, Your Honor.
05-8820 +++$+++ 47570 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Forget about equitable principles, statutory principles. Is there a lack of continuity, where you could have it pending for a period of a couple years and then an interruption, and then it can resume pending after the interruption?
05-8820 +++$+++ 47571 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You're using the phraseology interruption, and I would, would --
05-8820 +++$+++ 47572 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, period when it's not pending followed by a period when it begins to pend.
05-8820 +++$+++ 47573 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In that unusual circumstance, Your Honor, I think principles of equitable tolling would apply to keep the petitioner's ability to file.
05-8820 +++$+++ 47574 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there would be no statutory right in your view, it would depend on the equitable considerations?
05-8820 +++$+++ 47575 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that's correct, Your Honor, because statutory pending contemplates a finality, it contemplates -- and I think that this is, it is one of the fundamental problems, I believe, with petitioner's construction, is this ignoring of not only the plain language of the statute but what this Court has said about this statute, about 2244(d)(2). In Duncan this Court said that state, the word state modifies both post-conviction and other collateral review, and established that we are talking about a state application.
05-8820 +++$+++ 47576 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it doesn't say state pending or pending in state court, and what I want to do is go back and ask a question somewhat along the lines that Justice Stevens asked. Is the application pending in the period between the disposition of the petition by the state trial court and the determination by the petitioner whether or not to go forward for state appellate relief?
05-8820 +++$+++ 47577 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, I believe it is, and I believe that's what this Court said --
05-8820 +++$+++ 47578 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ By the same token, why isn't it pending between the final disposition by the state appellate court and the determination to seek cert here?
05-8820 +++$+++ 47579 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I have two answers to that, Your Honor. First would be, that's inconsistent with the language utilized by this Court in Carey where the Court defined pending as until final resolution through the state's post-conviction --
05-8820 +++$+++ 47580 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That was the issue in that case. This issue wasn't in that case.
05-8820 +++$+++ 47581 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, Your Honor, but the language utilized nevertheless --
05-8820 +++$+++ 47582 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I can't when I write something, I don't think I or anyone else can, if it happens to be a state case, refrain from using the word state. I wouldn't say there is an implication in writing an opinion that it doesn't mean Federal as well. As least I can't find that written in the opinion anywhere.
05-8820 +++$+++ 47583 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Fair enough, Your Honor. Then with respect to the second part of my answer to your question, Justice Souter, that it cannot be both final for 1257 purposes and pending --
05-8820 +++$+++ 47584 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But why isn't your sister's answer to that adequate? It is the state judgment that is final, but action on the petition is not yet final until it has gone through the period allowed for final review by this Court.
05-8820 +++$+++ 47585 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would, I would respectfully disagree with that, with that nondistinction, if you will, Your Honor, in the sense that the application --
05-8820 +++$+++ 47586 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you're distinguishing between a state judgment and an application upon which further, further proceedings can be had. Why is that a nondistinction?
05-8820 +++$+++ 47587 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because I would, I would disagree with the notion that further proceedings could be had on that application. The basis for this Court's certiorari of jurisdiction is that it is subject to no further review or correction in any state.
05-8820 +++$+++ 47588 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's assume that the, the petition for cert is granted and this Court grants relief. The relief as I understand it is going to consist of a remand to the state court saying you did something wrong on this application before, go back and do it over again and do it right. It's the -- it is the state application which is going to be the subject of it and that therefore, it is the state application that necessarily is the subject of the cert petition.
05-8820 +++$+++ 47589 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would say, Your Honor, that the state application may be the subject matter of what you are looking at from a subject matter standpoint, but what the Court is ruling on is the petition for certiorari, which was a Federal court ruling on --
05-8820 +++$+++ 47590 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's a petition for certiorari to review action taken on a state petition, just as at the state level, whatever may be the, the nomenclature for filing an appeal from the state trial court to the state appellate court, is an application which relates entirely to the original application for relief that was filed in the state trial court. It seems to me the two situations are exactly parallel.
05-8820 +++$+++ 47591 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I would respectfully disagree, Your Honor, because I don't see how it can be final for 1257 purposes and still pending for purposes of the statute.
05-8820 +++$+++ 47592 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that -- that --
05-8820 +++$+++ 47593 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's the application that is not subject to review. We review the state court judgment, not the state application, correct?
05-8820 +++$+++ 47594 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In this case, Your Honor, the application is the state court. I mean, the judgment is what is being reviewed, and it is a final judgment in the application. The Florida Supreme Court in this case has no power at all once they have issued the mandate to go back and modify, to correct it six months later. If the Florida Supreme Court decided, you know, we made a mistake in that application, they don't have the power sua sponte to correct it. It is final. It is over. The state's province has been completed.
05-8820 +++$+++ 47595 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they would correct it if we told them to.
05-8820 +++$+++ 47596 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In that circumstance, yes, Your Honor, certainly they would in a circumstance, in the very unusual circumstance where this Court were to accept certiorari and then subsequent to the acceptance of certiorari, then reverse the ruling.
05-8820 +++$+++ 47597 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And when it got back in the state supreme court, they would still be working on the application that had been pending until the end of the proceedings down there, and then suddenly came back to life after we sent it back.
05-8820 +++$+++ 47598 +++$+++ TRUE +++$+++ MR. PECK +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, but that is, again, the extraordinary circumstance. And that I think points out the, one of the flaws in petitioner's argument, and that is that that's making the exception the rule, that clearly Congress did not intend to add what I believe Chief Justice Roberts alluded to earlier, an extra three months, an extra six months.
05-8820 +++$+++ 47599 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I think what you're saying, though, is when you have ambiguous language, a sensible rule is not a rule, it has to have a lot of exceptions to make sense. Surely that's a sound principle, isn't it?
05-8820 +++$+++ 47600 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. And I don't think that this would be a lot of exceptions. I think this would be, the only exception would be, to the rule that we are advocating would be in the unusual circumstance, the one in 5,000 cases, the one in 1,000 cases, the exceptional case where this Court actually grants certiorari, those cases are exceptional in and of themselves.
05-8820 +++$+++ 47601 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Those are the most likely where people are going to get mixed up. I mean, I'm not following -- I think I think this argument about the word is metaphysical, you know, and I can make wonderful arguments, and you have made wonderful arguments on both sides of this. I just can't get a clear answer. So if I were right about that and there is no clear answer from the language, then the thing, I'd like to go back to Justice Stevens' question, because it seems to me that that puts my greatest concern, my greatest concerns are practical. If we take your position, we have words right next to each other, near each other in the same statutory provision, meaning different things. And I've learned out of my own experience perhaps, judges and lawyers are not always geniuses and they get mixed up. And they will get mixed up all the time, and when they get mixed up, people will lose rights that they have. The second concern of Justice Stevens, which is what happens in the case, and those are the ones who intuitively are going to cause the problem. Because on a rare occasion, the state or the prisoner has a very good Supreme Court case. And that's going to be the case where he forgets to file in the Federal court because he thinks this thing isn't over, and lo and behold, the Court grants it. And now what happens? On your interpretation, I just see a mess, and on the other interpretation, it seems to work out fine. So those, I would say are the two practical problems, and anything you would like to say about that, I'd like to listen to.
05-8820 +++$+++ 47602 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Breyer, and I would respectfully answer your question I think in three ways. First, drawing a distinction between when the state petitions for certiorari and when the habeas petitioner petitions for certiorari. Under both circumstances, equitable principles would apply, but they would apply in I think different ways. But in either circumstance, the ability of the petitioner to subsequently seek habeas review would be protected. And so what we are advocating is not making those exceptional cases the rule. In a case where the state petitions for certiorari there isn't an ability, there is no way to even file a protective habeas because there is nothing to file. You've won, the habeas petitioner has won in the court below. There is no cause of action. There isn't a basis upon which to file a Federal habeas claim, so even a protective one would be, it wouldn't be premature, it would be effectively nonexistent. So from an equitable standpoint, the extraordinary circumstance which the courts have recognized, the circuits have recognized that the test for equitable circumstance is, the extraordinary circumstance would be this Court accepting certiorari. And then the exercise of diligence on the part of the petitioner is if the petitioner did everything he or she could under that circumstance, because there would be no way for that petitioner to file for a Federal habeas review because there would be no basis for it.
05-8820 +++$+++ 47603 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can I ask -- it seems very strange to me. I can understand protective filings when you've lost, but it seems to me a very strange protective filing. When you've won in state court and the government has taken certiorari, can you file, file in Federal district court? What do you say? What are you complaining about?
05-8820 +++$+++ 47604 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly my point, Your Honor. You cannot.
05-8820 +++$+++ 47605 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. It's their point. I don't see how it's your point. How can you cover yourself? I mean, if we come out your way, how -- how --
05-8820 +++$+++ 47606 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There isn't a need to cover us up, Your Honor, because you've won in state court.
05-8820 +++$+++ 47607 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Provided equitable --
05-8820 +++$+++ 47608 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You're worried about winning in the Supreme Court.
05-8820 +++$+++ 47609 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the one in 1,000 or one in 5,000 cases, equitable principles would then apply. The distinction may not be clear between statutory tolling, what the statute actually provides for, and equitable tolling, equitable principles that have been applied by the court.
05-8820 +++$+++ 47610 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you're asking us to say that the Congress has written a statute which doesn't take account that the state might sometimes file a petition for certiorari that would be granted. And you say oh, that's so rare, that's so extraordinary. It happens. It's part of the system.
05-8820 +++$+++ 47611 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would you advise a client that way? Would you advise a client that way?
05-8820 +++$+++ 47612 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
05-8820 +++$+++ 47613 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You've won here and the state is taking certiorari to the Supreme Court. Don't worry about making a protective filing in the district court because, you know, if by chance the Supreme Court reverses, equitable tolling will apply. You know, you roll the dice with equity.
05-8820 +++$+++ 47614 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think there would be -- I think it would be ill advised to, to direct a petitioner to file in Federal court under those circumstances because there would be nothing to file. What would be the complaint?
05-8820 +++$+++ 47615 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I agree.
05-8820 +++$+++ 47616 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There would be absolutely nothing to file.
05-8820 +++$+++ 47617 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The irony of your position is that it has those harshest consequences in those rare cases where there was a denial of constitutional right.
05-8820 +++$+++ 47618 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I would respectfully disagree that it has its harshest consequences, because that's where the equitable tolling principles would in fact apply.
05-8820 +++$+++ 47619 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why do you need equitable tolling? Why can't you use, why isn't it most sensible to use the model when -- for the time clock on direct appeal, say there has been a conviction affirmed by the highest court of the state, when does the time, when does that judgment -- it's a final judgment if you seek cert, right? But the time clock, the one year doesn't begin to run until after the 90 days has elapsed; isn't that right?
05-8820 +++$+++ 47620 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-8820 +++$+++ 47621 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So why shouldn't it be the same way for collateral review as it is for direct review? Direct review, everyone agrees that you get the state final judgment. But then you have 90 days and nothing starts until that 90 days is up or, if cert is granted, until the cert process is done. Why shouldn't it be just the same for collateral review?
05-8820 +++$+++ 47622 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would say it's different, Your Honor, respectfully, for two reasons: One, because this Court has said that direct review is different in numerous cases. And two, because the statute makes that distinction. Congress in (d)(1)(A) utilized that very specific language that included the, the certiorari period and in (d)(2) did not use that language, and it is the absence of that language that indicates that tolling is only to apply while a petitioner is exhausting relief, state relief.
05-8820 +++$+++ 47623 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well that means, that means that if a petitioner who has had his state application for collateral relief denied wants to petition this Court, but doesn't want to lose out on the possibility of seeking Federal habeas, that prisoner has to do two things at the same time: One, prepare a petition for cert; and the other is to prepare, prepare a complaint to file in a Federal district court. That's a lot to put on a person, particularly the one who isn't represented.
05-8820 +++$+++ 47624 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I would say that in many circumstances that would be the case, but not always the case. It depends on how much time is left on the Federal statute of limitations, how much time is remaining, how long did it take to get through the state post-conviction process. How timely was the filing in the state post conviction process. And how much time is remaining, assuming for what was discussed --
05-8820 +++$+++ 47625 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Here there were 31 days, right?
05-8820 +++$+++ 47626 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Then they would need to file -- yes, Your Honor, and they would need to --
05-8820 +++$+++ 47627 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They'd have to file a Federal court complaint and a cert petition within the 31 days.
05-8820 +++$+++ 47628 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. Yes, Your Honor, because the amount of time that would elapse before this Court were to rule on the cert petition would consume that 31 days. And I don't think that's inconsistent with what Congress intended here because what Congress intended by this provision was to provide petitioner -- well, what this Court said in Duncan, what this Court has recognized, is that the scheme that has been put together here by Congress is one which encourages petitioners first to file and exhaust their state remedies, recognizing and giving deference to the principles of comity, and then second to file, once they're done with their state process, once they've completed the state process and exhausted their state remedies, to file their Federal habeas, in the words of this Court in Duncan, "as soon as possible." And the anomaly that would be created by petitioner's construction would be it would be the only time under all of AEDPA where a petitioner could file in Federal district court but isn't required to file. And so I would submit to this Court that it cannot be both exhausted and pending at the same time. It would not fit within the scheme that this Court has already determined the structure of (d)(2) is designed to accomplish. The principle is that you are to, as a habeas petitioner, go quickly to state court, and we're going to give state courts the first opportunity at these Federal constitutional questions. And yes, Justice Stevens, it may take some time. It may take several years in Federal -- in state court, before they accomplish that purpose. But that's the state's issue because it's the state's judgment and the state is taking its time and it shouldn't be -- and this is what Congress recognized I think in (d)(2) -- that, that, that the petitioner should not be penalized for that time. That's why it was tolled.
05-8820 +++$+++ 47629 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is it, is it clear that he can go to district -- I mean, I'm not familiar with how these things work. Is it possible that when there is an appeal or certiorari pending here there can be proceeding in district court a habeas action on the same, on the same matter that we are considering on certiorari?
05-8820 +++$+++ 47630 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, I believe there can. I believe, there is, in fact --
05-8820 +++$+++ 47631 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ District courts do that? I mean, they would be considering the same, the same issues we are, I suppose?
05-8820 +++$+++ 47632 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't know that they would be considering the exact same issues, Your Honor. And there are many things that can be done -- petitioner --
05-8820 +++$+++ 47633 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You're sure that happens, that while cert is pending here there is a habeas proceeding ongoing in district court?
05-8820 +++$+++ 47634 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I certainly hope that in the 10 of the 11 circuits that have agreed with Florida's position here that that is happening, because if not then they are at risk, depending on how --
05-8820 +++$+++ 47635 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Wouldn't a district judge who knows that there's a cert petition pending just say: Well, I'll wait; this petition will be held pending the Supreme Court's disposition of cert.
05-8820 +++$+++ 47636 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would respectfully say to Your Honor that it's not an automatic stay. I mean, perhaps there would be a stay at some point. But there are things that can be accomplished in Federal court before the undertaking of the review. There is the Rule 4 screening process in habeas. There is the initial review by the district court to see if the filing itself meets the procedural requirements. There is the asking for an answer by the state. There is discovery that can take place. All of this can take place while the cert petition is pending before the Federal district undertakes any review of the merits. Now, if there gets to be this juxtaposition where it looks like there is going to be a conflict between the Federal district's court's review of the substantive merits and that is going to conflict with this Court's certiorari review, well, then I think a stay would be implemented.
05-8820 +++$+++ 47637 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I'll accept your view as being the personal experience. I'm rather surprised that district courts would go through all of these preliminary steps when the case is on cert and they may not have to.
05-8820 +++$+++ 47638 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they may not have to --
05-8820 +++$+++ 47639 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm not sure if I would tell the district courts that's what they ought to do, is a wise expenditure of resources. I'll think about that.
05-8820 +++$+++ 47640 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I mean, it sort of depends on how often cert is going to be granted, doesn't it? If you're a district court and you have hundreds of these habeas petitions being filed, you can either hold of them whenever a cert petition is filed, one in one thousand or whatever the number is, because they might be granted. I think you'd probably take your chances depending on the petition. If it looks serious and there's a petition pending you don't have to proceed. If it's frivolous perhaps you can proceed.
05-8820 +++$+++ 47641 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's exactly right, Your Honor. I think that's really the point, and you've obviously articulated it better than I did in my previous answer. But that's exactly right, that --
05-8820 +++$+++ 47642 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But isn't it true the real problem with the capital cases? The state's interest in getting things moving is the strongest in the capital cases, I think.
05-8820 +++$+++ 47643 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Your Honor.
05-8820 +++$+++ 47644 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In the non-capital cases there is an interest in promptness, but the longer the guy stays in jail is not going to prejudice the state. But you do want to get your death cases terminated as soon as you can. And what we're really talking about as I understand it is whether in most death cases we'll add on a period of six, eight, nine months to the total period. And in most of those death cases, which is a limited number -- I don't know, you have a couple hundred people I suppose in death row -- in those cases it's going to be seven, eight, nine years anyway.
05-8820 +++$+++ 47645 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it may be that long. It may be a shorter period. But I think what we need to look at is not what we would think would be the preferred time frame, but what Congress said was the preferred time frame. And Congress is saying that it's one year, and the only time it's tolled is when the petitioner is doing what it should be doing to exhaust state remedies. That's again what this Court said in Duncan about describing this entire structure.
05-8820 +++$+++ 47646 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's if you're formally right on the metaphysical question. But if you're not, now thinking you just gave a response to the Chief Justice that said, well, really the Federal district judge when he gets these things just has to look at them and then he figures out whether he is going to stay it or whether he's going to proceed on some issues or whether he is going to do something else. And that's what you thought was fairly easy. You have the experience there and I just wonder how easy it is. I mean, why wouldn't it be easy? Because I guess before doing anything the judge has to know what this thing is about. And that's where it seems to me to take the time of a district judge. They have many, many petitions. Sometimes they are well organized, sometimes not. He sends them to a magistrate possibly. The magistrate has a lot to do, and the time consumed is the time finding out what is this case about. Is that fair characterization or not? How easy is it?
05-8820 +++$+++ 47647 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it's partly fair, Your Honor. What I would say is the time -- certain time is consumed just determining whether or not under the Rule 4 screening process, whether or not the petition meets the formal requirements, whether they've articulated the claim in the correct way and whether it's worthy of the state response, if there's discovery that needs to be had. I mean, all of these things can be taking place and in the one in one thousand or perhaps more than that -- and I don't pretend to have the exact number or the statistics -- but in the very, very usual circumstance where cert is actually granted, I think then a stay could be put in place. And I don't think it's fair to say, respectfully, that Congress intended to forestall this entire process while this Court undertakes certiorari review.
05-8820 +++$+++ 47648 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Kise, there are two applications. Your answer to the petitioner is you have to file in the Federal court within that 31 days. If a prisoner says, I can't manage a cert petition and a Federal habeas corpus, it's hard enough for me to get any assistance, so I'll have to pick one or the other, isn't the, the reading of an ambiguous statute that you're proposing going to be an incentive or a disincentive to filing both, which the prisoner has a right to do? He is going to have to pick one or the other if he is in this timeline.
05-8820 +++$+++ 47649 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, respectfully, Your Honor -- and I know that that is the petitioner's argument and I see that you have given me that question, but I don't know that it is that much of a choice. I mean, I think that they can file, they can file both in those circumstances and, and depending on the particular circumstances -- and this is back to the equitable tolling principles -- for statutory tolling purposes, I think the answer is they must file both or they forfeit the right to one or the other. If they choose not to file for cert, then they voluntarily if they pass the 90 days forfeited that right; and if they don't file within the statutory period then they have under AEDPA missed the statute of limitations deadline. But I would, I submit to you that it is possible to do both, and in circumstances where there is some impediment to them doing just that, if they exercise diligence, if they are doing everything they possibly can and it is not possible to file both at the same time, well, then I think under the facts of the proper scenario that equitable principles might apply. But again, to say that Congress built into the system this automatic time period that's going to be tacked on to a very short one-year statute of limitations, a statute of limitations that is designed to really move things through the system rapidly, is, respectfully, I don't think the correct interpretation of the language, and I don't think it is consistent with what this Court said in Duncan or, with respect to Justice Breyer, what this Court said in Carey.
05-8820 +++$+++ 47650 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Let me be clear on your answer to Justice Stevens' earlier question. Where there is a reversal of the state judgment by, by this Court, and the case is remanded to the state, you don't argue that what occurs then is equitable tolling? But you say that the case is again pending once it goes back to the state, is that right?
05-8820 +++$+++ 47651 +++$+++ TRUE +++$+++ MR. KISE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think once it's back in the state system then it would have to be considered pending, because the statute contemplates that while it's part of the state process it would be pending. If the Court has no further questions, thank you.
05-8820 +++$+++ 47652 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Kise. Ms. Bonner, you have four minutes remaining.
05-8820 +++$+++ 47654 +++$+++ FALSE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, sir. I've heard the state over these many years say that a simple exception will help the defendant and don't worry, we will not proceed, we'll ask for -- don't worry, we won't object. Kind of what we're getting here is, we won't be objecting to a stay if there is a stay requested. However, they objected to the stay here that the United States district court entered. In an exercise of honesty, he said: I'm going to wait for the Supreme Court to decide what happens in Artuz, whether they accept cert or not. And they vigorously. Objected and utilized a good little built of time litigating it on an interlocutory type appeal. One of the practical problems is if this case is in both courts, this one and the United States district court, where is the record? Is -- It's just the most practical of things. And also, where is the lawyer, who is the lawyer?
05-8820 +++$+++ 47655 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Records don't have to -- typically are not filed with the petition for cert. So the record would be back in the lower court.
05-8820 +++$+++ 47656 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So that solves that. The --
05-8820 +++$+++ 47657 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Just to be clear, it is your position that to get -- you think everyone's entitled to the additional 90 days whether they file or not.
05-8820 +++$+++ 47658 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I do.
05-8820 +++$+++ 47659 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ To get the additional time for an opposition that would be considered here, you have to file the petition for cert. In other words, if you don't file after the 90th day it's no longer pending.
05-8820 +++$+++ 47660 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
05-8820 +++$+++ 47661 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay. So then why wouldn't the result of your position be that every person who is denied state post-conviction relief is going to file a cert position to get the additional time?
05-8820 +++$+++ 47662 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Why is my position that they would not?
05-8820 +++$+++ 47663 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Wouldn't that lead to that result? If Congress was concerned that people were stringing out the time before they seek habeas, one way to string it out under your reading, but not under the state's reading, would be to file a petition for cert.
05-8820 +++$+++ 47664 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Congress couldn't have been too concerned about that 90 days because it certainly permitted the trigger to have the 90 days included within it, and this Court has allowed the 90 days --
05-8820 +++$+++ 47665 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm sorry. What's the trigger?
05-8820 +++$+++ 47666 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ A, 2242(b)(A).
05-8820 +++$+++ 47667 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. When they wanted to include the 90 days, they said the expiration of the time for seeking review. They did not say that in (d)(2).
05-8820 +++$+++ 47668 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They did not say that, but they said while the application is pending. And the state did not address for this Court what is pending here if it's not that application from state court.
05-8820 +++$+++ 47669 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does your argument --
05-8820 +++$+++ 47670 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I guess you could also say that except in capital cases the defendant will not have an incentive to delay. He wants to get out, right?
05-8820 +++$+++ 47671 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of course, of course. And you know, frankly, I think all of the defendants on death row --
05-8820 +++$+++ 47672 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, if the defendant had no incentive to delay, why did Congress think it necessary to impose the statue of limitations? They did that because they thought people were stringing out their -- and they were applying for Federal habeas after too long of a delay.
05-8820 +++$+++ 47673 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well strangely enough in this case I was looking at statistics as to the average length of time that a case was pending before, between conviction and the filing of the 2254, and Mr. Lawrence's petition was filed within days of what the average was before the AEDPA. That comes up in a statistical analysis I believe by the Department of Justice cited to by the state.
05-8820 +++$+++ 47674 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Doesn't the title of a statute indicate the category of cases that Congress was primarily interested in?
05-8820 +++$+++ 47675 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh yes.
05-8820 +++$+++ 47676 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The death penalty.
05-8820 +++$+++ 47677 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh yes. When they joined together in anti-terrorism, effective -- the -- just the word effective was plenty to convey to us what they actually mean. The other big problem that's not been addressed is these people in a practical sense do not have the same lawyer for both proceedings. Many people who were more than willing to practice in state court are not willing to practice in Federal court. It's a more formalized, rigorous endeavor. And in this case what happened was Mr. Lawrence had a lawyer who practiced in the state and obviously must have prepared for him that initial place holder, if you want to call it, 2254, because it's typewritten. They cite to a Westlaw site. I don't think there is any way that anyone can contemplate that that would be Mr. Lawrence's doing in his own right. Also, whether it's 90 days or six months as Your Honor has said, it's always in the control of this Court. Once the 90 -- this is not a frolic of unnumbered years. When someone files a petition he either files it by the time 90 days is over or he is out of court, or he files it and this Court is quickly reviewing it after some input from the other side.
05-8820 +++$+++ 47678 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Miss Bonner.
05-8820 +++$+++ 47679 +++$+++ TRUE +++$+++ MS. BONNER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
05-8820 +++$+++ 47680 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The case is submitted.
05-908 +++$+++ 47684 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first today in 05-908, Parents Involved in Community Schools versus Seattle School District Number 1. Mr. Korrell.
05-908 +++$+++ 47686 +++$+++ FALSE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court. In an effort to achieve its desired racial balance in its popular high schools, the Seattle school district denied over 300 children, both white and minority children, admission to their chosen schools solely because of their race and without any individualized consideration. This strikes at the heart of the Equal Protection Clause which commands that Government treat people as individuals, not simply as members of a racial class. This fundamental equal protection principle was reiterated in Grutter and in Gratz. The central question in this case is not, as the school district and many of its allies suggest, whether integration is important or whether desegregation is compelling. The central question in this case is whether outside of the remedial context, diversity defined as the school district does, as a white/non-white racial balance, can be a compelling interest that justifies the use of race discrimination in high school admissions.
05-908 +++$+++ 47687 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Korrell --
05-908 +++$+++ 47688 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you disagree in general with the Solicitor General's brief? Do you agree in general with the brief submitted by the Government or do you have differences with it in its approach?
05-908 +++$+++ 47689 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, we -- we agree mostly with the Solicitor General's brief. I believe the Solicitor General might take a different position on whether race neutral mechanisms can be used to accomplish race specific purposes.
05-908 +++$+++ 47690 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I can --
05-908 +++$+++ 47691 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But that's not an issue the court needs to reach in this case.
05-908 +++$+++ 47692 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it, it is a point that I, I'd like both him and you to discuss at some point during your argument. If -- can you use race for site selection? When you have, you need to build a new school. There are three sites. One of them would be all one race. Site two would be all the other race. Site three would be a diversity of races. Can the school board with, with the intent to have diversity pick site number 3?
05-908 +++$+++ 47693 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, I think the answer turns on the reason that the schools have the racial compositions that they do.
05-908 +++$+++ 47694 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It -- there's -- well, we can have all kinds of different hypotheticals, but there's residential housing segregation, and it wants, it wants, the board wants to have diversity.
05-908 +++$+++ 47695 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, our position is that if, if the resulting -- if the racial composition of those schools is not the result of past de jure segregation --
05-908 +++$+++ 47696 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. It is a new school. It's a new school.
05-908 +++$+++ 47697 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In that case, Your Honor, Parents' position is that the Government can't be in the position of deciding what right racial mix is.
05-908 +++$+++ 47698 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it'd have to take the three sites, all of them in the hypothetical, all of them equal, and just flip a coin, because otherwise it would be using a --
05-908 +++$+++ 47699 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, obviously it is not the facts of the Seattle case. In the hypothetical Your Honor posits, perhaps the right analogy is something similar to the, a redistricting cases. Where a court could look at see whether the racial motive was a predominant factor as opposed to --
05-908 +++$+++ 47700 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, no. The school board says we want, right up front, we want racial diversity in our new schools. Illicit under the Fourteenth Amendment in your case?
05-908 +++$+++ 47701 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, school districts can do many, many things through race neutral means that they could not do with race discrimination.
05-908 +++$+++ 47702 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But can they have a race conscious objective? I think that that's the question that Justice Kennedy is asking you, and I don't get a clear answer. You say you can't use a racial means. But can you have a racial objective? That is, you want to achieve balance in the schools.
05-908 +++$+++ 47703 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, our position is that that is prohibited by the Constitution absent past discrimination.
05-908 +++$+++ 47704 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You would object, then, to magnet schools? You would object to any system that is designed to try to cause people voluntarily to go into a system that is more racially mixed?
05-908 +++$+++ 47705 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, our objection to the Seattle program is that it is not a race neutral means.
05-908 +++$+++ 47706 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, I understand. But I'm trying to find what, you know, the outer limits of your contentions are. It doesn't seem to me that your briefs indicated that you would object to something like magnet schools. The -- even if one of the purposes of those schools is to try to cause more white students to go to schools that are predominantly non-white. It's just voluntary, I mean, but the object is to achieve a greater racial mix.
05-908 +++$+++ 47707 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we object to the -- if that's the sole goal of a school district absent past discrimination, we object. But that kind of hypothetical situation isn't even necessary for the Court to reach.
05-908 +++$+++ 47708 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I understand.
05-908 +++$+++ 47709 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it may not be necessary for you but it might be necessary for us when we write the case. We're not writing just on a very fact-specific issue. Of course, the follow-up question, and the Solicitor General can address it too, is this: Assuming some race-conscious measures are permissible to have diversity, isn't it odd to say you can't use race as a means? I mean, that's the next question. That may, in fact, be why you give the -- seem to give the answer that you do. You just don't want to embrace that contradiction.
05-908 +++$+++ 47710 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, it is certainly difficult if race -- if racial balance can be a goal of government, then it is more difficult to defend a racial balancing plan as unconstitutional, or to attack one as constitutional.
05-908 +++$+++ 47711 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That is true.
05-908 +++$+++ 47712 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And this Court has said repeatedly that racial balancing is unconstitutional.
05-908 +++$+++ 47713 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, we have said it repeatedly in contexts different from this. I mean, the paradigm context in which we made remarks to that effect, stated that, are affirmative action cases. The point of the affirmative action case is that some criterion which otherwise would be the appropriate criterion of selection is being displaced by a racial mix criterion. That is not what is happening here. This is not an affirmative action case. So why should the statements that have been made in these entirely different contexts necessarily decide this case?
05-908 +++$+++ 47714 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Souter, we disagree that the analysis in the Grutter and Gratz cases is entirely different from the analysis in this case.
05-908 +++$+++ 47715 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But don't you agree that those cases left someone out of the picture entirely because we were talking about a selection of one person or another? The word "sorting" has been used in this context because everybody gets to go to school. Indeed, they are required to go to school. So no one gets left out of the system, and I think there have been Court of Appeals judges who have noted. We have never had that case before, not like the affirmative action cases.
05-908 +++$+++ 47716 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I agree that this Court has not had a case like this before. I disagree, however, that it's not like the Grutter or Gratz decision. The plaintiff in Gratz, as the Court is aware, attended the University of Michigan at Dearborn. He got into a school. He didn't get into the school that he wanted to go to. Similarly, in our case, with the plaintiffs, they wanted to go to their preferred schools, schools that the school district acknowledges provided different educational opportunities, produced different educational outcomes, and they were preferable to the parents and children who wanted to go.
05-908 +++$+++ 47717 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why do you agree that this is not an affirmative action case? Is it not? Wherein does it differ? I thought that the school district was selecting some people because they wanted a certain racial mix in the schools, and were taking the affirmative action of giving a preference to students of a certain race. Why isn't -- why doesn't that qualify as affirmative action?
05-908 +++$+++ 47718 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If that's what affirmative action is, Your Honor, then --
05-908 +++$+++ 47719 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I don't know what else it is. What do you think it is that causes you to seemingly accept the characterization that this is not it?
05-908 +++$+++ 47720 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, perhaps I misspoke. I didn't mean to accept the characterization that this case is not at all --
05-908 +++$+++ 47721 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let me help you out by taking you back to my question. One of the characteristics of the affirmative action cases was the displacement of some other otherwise generally acknowledged relevant criterion such as ability as shown in test scores, grade point averages, things like that; and that was a characteristic of those cases. It is not a characteristic of this case, as I understand it.
05-908 +++$+++ 47722 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure that's exactly right, Your Honor. In this case, the school district admitted in the response to request for admissions that had the identified children been of a different race, they would have been admitted into the schools.
05-908 +++$+++ 47723 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought there was a criterion here, and that is, you can go to whatever school you want. You are allowed to go to a certain choice of school. The criterion was your choice.
05-908 +++$+++ 47724 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, you're right. And there's another criterion which I think is getting to Justice --
05-908 +++$+++ 47725 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, when you state Justice Scalia is right, you are assuming, I think as your brief assumed, that the definition of the benefit to be received here is the active choice, not the provision of an education. Now the active choice may be of value. I do not suggest that it is not. Clearly the school district thinks it does or it wouldn't provide choice. But it is not the entire benefit that is being provided, and the principal benefit is the education, not the choice of schools. Isn't that correct?
05-908 +++$+++ 47726 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, they are both benefits. I would point Your Honor back to this Court's decision in Gratz, where the same analysis would apply. And if Your Honor's analysis is correct, that would mean, I think, that the Gratz case would have been decided differently.
05-908 +++$+++ 47727 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But I think that the point that Justice Souter is trying to make, as I understand it, is of course there are similarities to Gratz, they can choose, but there's a big difference. The similarity in Grutter, or the difference in Grutter and Gratz is that you had to prod a school that was supposed to be better than others, that the members of that school, the faculty and the administration tried to make it better than others. It was an elite merit selection academy. And if you put the black person in, the white person can't get the benefit of that. Here we have no merit selection system. Merit is not an issue. The object of the people who run this place is not to create a school better than others, it is to equalize the schools. That's in principle and in practice, if you look at the numbers, you see that the six schools that were at the top, their position would shift radically from year to year, preferences was about equal among them. They have the same curriculum, they have similar faculties, and I don't think anyone can say either in theory or in practice, that one of these schools happened to be like that prize of University of Michigan, a merit selection system. That, I think, was a major difference that he was getting at, why is this not the same kind of thing? That was at issue in Grutter and Gratz. Now what is your response to that?
05-908 +++$+++ 47728 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we have several responses. The first is that the premise of Your Honor's question is that the schools are in essence fungible for purposes of providing a high school education. And I would direct Your Honor to the District Court judge's decision, a footnote in the decision in which she acknowledged that the schools were not of equal quality, that they provided different levels of education.
05-908 +++$+++ 47729 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course they're not. That's why some of them were oversubscribed. That's why others were undersubscribed.
05-908 +++$+++ 47730 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I didn't say that they were. What I said was that the object of the school board and the administering authority was to make them roughly equal. I said that in terms of curriculum and faculty, they're about roughly equal. And in terms of choice, what you see is a wide variation in choice by those who want to go as to which is their preference among six schools over a period of five years. And that suggests a rough effort to create the equality, not an effort as in Michigan, to run a merit selection system.
05-908 +++$+++ 47731 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree with Your Honor that there's not a merit selection system in --
05-908 +++$+++ 47732 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Fine. Now the question is, why doesn't that fact that this is not a merit selection system put a different kind of thing, a sorting system or a system designed to maintain a degree of integration, why doesn't that difference make a difference?
05-908 +++$+++ 47733 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think that the fundamental command of the Equal Protection Clause is that government treats as individuals, not as members of a racial group. And that command I don't think is suspended because of the nature of a school's admissions process. That right is still possessed by the individual students, and if a student is entitled to be treated as an individual as opposed to a member of a racial group at a university level, it's Parents' position they are entitled to that same protection at the high school level.
05-908 +++$+++ 47734 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Korrell, before your time runs out, I did want to clarify something about the standing of the plaintiffs here. Do I understand correctly that none of the parents who originally brought this lawsuit have children who are now pre-ninth grade, but that newcomers, people who recently joined, do have children of pre-ninth grade age?
05-908 +++$+++ 47735 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, that is mostly correct. There is also a family that joined the parents association back in 2000 that has a child in seventh grade, that will be approaching high school by the time this Court decides the case.
05-908 +++$+++ 47736 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the lawsuit was originally brought by a corporate entity, correct?
05-908 +++$+++ 47737 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor.
05-908 +++$+++ 47738 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Not by individual parents.
05-908 +++$+++ 47739 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-908 +++$+++ 47740 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you don't dispute that membership, for standing purposes, the membership is what counts, not the association but the members?
05-908 +++$+++ 47741 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, my understanding of the Court's jurisprudence on associational standing is as long as a member of the association has standing, then the association has it. We submit that that has been established by the complaint, the interrogatory responses, and --
05-908 +++$+++ 47742 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if it is a member, jurisdictional questions generally, don't we go by what the membership was when the complaint was filed and not what it has become in the course of the litigation?
05-908 +++$+++ 47743 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that's right, Your Honor. We cited to the Court the Pannell case, the Associated General Contractors case, and Roe versus Wade, all of which look at post-filing factors to --
05-908 +++$+++ 47744 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but the transaction case situation is different.
05-908 +++$+++ 47745 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You're right, Your Honor, none of those were class action cases. Pannell and Associated General Contractors were association cases much like this one. Roe, of course, was individual plaintiffs.
05-908 +++$+++ 47746 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I have a question. Does the record tell us, the 300 people who have failed to get into the schools they wanted, the racial composition of that group?
05-908 +++$+++ 47747 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does, Justice Stevens. The record shows that 100, roughly 100 students who were denied admission to their preferred schools were non-white and roughly 200 who were denied admission were white students. If there are no further questions, Mr. Chief Justice, I will reserve the balance of my time.
05-908 +++$+++ 47748 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. General Clement.
05-908 +++$+++ 47750 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Respondents assert an interest in addressing the most racially isolated schools in the district, yet their plan does not address the two most racially concentrated high schools in their district. They likewise have certain interests in diversity, yet their plan does not directly address diversity other than pure racial diversity, and they do nothing to assemble the kind of critical mass that was at issue in the Grutter case. In fact, if you look at the program and how it operates in practice, the triggering critical mass for the use of the racial tie breaker is when a student -- when a school has less than 25 percent white students or when it has less than 45 percent non-white students. There is nothing in the record or in social science that suggests that there's a radical difference in the critical mass based on the race of the students. Of course what explains that difference in the triggering critical mass of white students versus non-white students, the answer to that does not lie in educational theory, the answer lies in the demographics of the district. The district happens to have 25 percent more non-white students than white students, so they trigger the race tie breaker at a different point under those circumstances. With all respect to respondents, the answer to how this program works lies not in diversity but in demographics. They are clearly working backwards from the overall demographics of the school district rather than working forward to any clearly articulated pedagogical role.
05-908 +++$+++ 47751 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Counsel, if I could get back to Justice Kennedy's question earlier, how do you distinguish decisions like citing magnet schools, clustering, from the consideration of race in this case?
05-908 +++$+++ 47752 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Mr. Chief Justice, I think that those decisions are different primarily because the resulting decision is not a racial classification. And if you think about it, when you had an overt racial classification, like you clearly do in these cases, then you naturally ask the strict scrutiny questions and look for a compelling interest. If instead you start with a race-neutral government action that doesn't classify people directly based on race, then I suppose you could try to do some kind of Arlington Heights-Washington Davis type analysis.
05-908 +++$+++ 47753 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, what would you do with strategic site selection in order to create racial diversity?
05-908 +++$+++ 47754 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Kennedy, I think --
05-908 +++$+++ 47755 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, that's expressed and principal purpose. You know the hypothetical.
05-908 +++$+++ 47756 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay. And Justice Kennedy, I will answer the hypo, but let me say it's easy for purposes of the hypo to say the sole reason was for race. In the real world, in fact I can't imagine that a site decision won't be based at least in part on concerns about the overall educational benefits. And I think that's important. The reason I start with that preface is because when you have mixed motives and a variety of factors I think you'd be unlikely to strike down that kind of motive.
05-908 +++$+++ 47757 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you suggesting there was no consideration of overall educational benefits in this plan?
05-908 +++$+++ 47758 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Stevens. I'm saying you start at a different departure point when you have an express racial classification. I think I'm trying to answer Justice Kennedy's question about what if you have a sort of a race-conscious goal at some level and that's why you select a particular site or you decide that you're going to invest in magnet schools and want to put a magnet school in a particular school district. My humble point is simply that in the real world I think you're unlikely to have the pure racial motive type objective. I would say that --
05-908 +++$+++ 47759 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose it was faculty, and the school district makes a deliberate effort to have members of the white race and members of other races represented in -- on the faculty of every school, so you won't have one school with all white teachers, so that you'll have a mix, and that's quite explicit. That's their objective and they're using a racial criterion criterion to get there. Would that be impermissible, to have a mix of teachers in all the schools?
05-908 +++$+++ 47760 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Ginsburg, I think if what they wanted to do is have an mix of teachers that might be okay. If they're going to start assigning teachers to particular schools and have sort of racial quotas for the faculty at various schools, I think that crosses a line.
05-908 +++$+++ 47761 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, what would be okay? How would you get there other than having -- the point I'm trying to make has been made by others. Let me read from Judge Boudin's decision. He says: "The choice is between openly using race as a criterion or concealing it through some clumsy or proxy device." If you want to have an integrated school and you site the schools deliberately to achieve that objective, it's very hard for me to see how you can have a racial objective but a nonracial means to get there.
05-908 +++$+++ 47762 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, with respect, Justice Ginsburg, I think there's a fundamental difference between how the same intent with two programs, there's a fundamental difference if one of them necessarily classifies people on the basis of their skin color and the other does not.
05-908 +++$+++ 47763 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ General Clement, is there anything unconstitutional about desiring a mingling of the races and establishing policies which achieve that result but which do not single out individuals and disqualify them for certain things because of their race? Is there anything wrong with a policy of wanting to have racial mix?
05-908 +++$+++ 47764 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, we would take the position that there's not and that there's a fundamental difference between whether or not the policy manages to avoid classifying people on the basis of their race.
05-908 +++$+++ 47765 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ At page 7 of your brief you say: "School districts have an unquestioned interest in reducing minority isolation." If I put a period in there, then I would get to my strategic site selection, and I still haven't got your answer on that. You don't put a period there. You say: ". .have an unquestioned interest in reducing minority isolation through race-neutral means." And this brings up this same question Justice Ginsburg had. Isn't it odd jurisprudence where we have an objective that we state in one set of terms but a means for achieving it in another set of terms, unless your answer is that individual classification by race is, is impermissible, but other, more broad measures based on, with a racial purpose are all right?
05-908 +++$+++ 47766 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's ultimately the answer, Justice Kennedy, which is there's a fundamental difference between classifying people and having the real world effect. I mean, in this case don't forget that there were 89 minority students that wanted to attend Franklin High School. They could not solely because of their race. At the same time, every white student who applied to Franklin High School was allowed in solely base would on their race.
05-908 +++$+++ 47767 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what is the answer to my strategic site selection hypothetical?
05-908 +++$+++ 47768 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We would say that's fine. We would say that that is permissible, for the school to pursue that. Just to get back, though, again, we say that that avoiding racial isolation is -- I just want to make the point, we say that racial isolation is an important government interest. I think if you put this plan up against that objective, it solely fails, because there are two high schools that I think you would look at as being racially isolated. They're Cleveland n Rainier Beach, and this plan does nothing to directly address those high schools.
05-908 +++$+++ 47769 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ My question is really Judge Boudin's question. You are in effect saying that by siting the school they can achieve exactly the objective they are seeking here. It's a question of do the -- the question comes down to whether they can do it candidly or do it by clumsier. That is, it seems to me, an unacceptable basis to draw a constitutional line.
05-908 +++$+++ 47770 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect, Justice Souter, first of all I think the kind of interests we're talking about, avoiding racial isolation and the like, do not lend themselves to absolutely targeted, it has to be 15 percent, it has to be 50, it has to be 25, it has to be 45. I would actually suggest that the danger is in the opposite direction.
05-908 +++$+++ 47771 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That isn't what they said here. I mean, they were dealing with a zone within which they operated, and it was only when the numbers got to the outer limits that they said, okay, we're going to use a racial criterion to prevent anything more, any more extreme disparity.
05-908 +++$+++ 47772 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I mean, in the second stage --
05-908 +++$+++ 47773 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's what they do when they site the school. They said, you know, we'll get a rough whatever it is, 40-60 mix.
05-908 +++$+++ 47774 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think in the second case you'll see that, you know, the same logic that leads to this leads itself to stricter bands. But let me say, I would have thought the analysis would run the exact opposite way, and I would think that if you got to the point, which the Ninth Circuit did on page 58-A of its opinion, where it says, you know, with this objective that we've allowed, the most narrowly tailored way to get there is to expressly use race. I would have thought that might have suggested there was something wrong with the compelling interest, if that's the way --
05-908 +++$+++ 47775 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ While you're talking about the way, let me ask a practical question. 35 years ago in Swann, this Court said that a school board, particularly an elected one -- it didn't say that -- "could well conclude that to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion of the district as a whole." Far more radical than anything that's at issue here. Then it adds: "To do this as an educational policy is within the broad discretionary powers of school authorities." That's what this Court said 35 years ago. Thousands of school districts across the country, we're told, have relied on that statement in an opinion to try to bring about a degree of integration. You can answer this in the next case if you want. So think about it.
05-908 +++$+++ 47776 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You can answer in this case, General. (Laughter.)
05-908 +++$+++ 47777 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ My question, of course, is simply this. When you have thousands of school districts relying on this to get a degree of integration in the United States of America, what are you telling this Court is going to happen when we start suddenly making -- departing from the case? Do you want us to overrule it? Why? Why practically?
05-908 +++$+++ 47778 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ General?
05-908 +++$+++ 47779 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If I could answer the question, I think that the fact that you point to the specific language of Swann is helpful, because the Court there in dictum -- I think everybody would agrees that was dictum -- said that you could achieve a prescribed ratio. And that's exactly where the logic of the other side, of the Ninth Circuit, of Judge Boudin, with all respect, that's where it takes you. And I think anybody that relied on that language in the wake of cases like Crosson, in the wake of Freeman against Pitts, that said achieving a racial balance for its own sake is not constitutional, and Bakke and Grutter against Gratz, that all said that racial balancing is verboten, I think those school districts would have been misguided in relying on that language. Thank you.
05-908 +++$+++ 47780 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General. Mr. Madden.
05-908 +++$+++ 47782 +++$+++ FALSE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice and may it please the Court: When Seattle was last before this Court you struck down a State law that prevented bussing for integration purposes because that law prevented the school board from seeking to provide the educational benefits of integrated schools. At that time you said it was clear enough that all children benefit from exposure to ethnic and racial diversity in the classroom by preparing them for citizenship in our pluralistic society and teaching them to live in harmony and mutual respect.
05-908 +++$+++ 47783 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Madden, that's certainly an admirable goal. Could a local unit, a municipality, or even a State have another goal? Let's say what used to be great about the United States was the presence of various ethnic groups. I mean, there were the Pennsylvania Dutch, there were the Amish, there were Little Italy's, there were Chinatowns, and these things are beginning to disappear. And we think that we should encourage the continuation of that diversity, as the Federal Government has done with respect to American Indian tribes. And therefore, we're going to use public funds for such things as street festivals, a Chinatown street festival, an Italian street festival. We're going to encourage those organizations that maintain that separateness. Is there anything unconstitutional about that objective?
05-908 +++$+++ 47784 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Providing funding for street festivals?
05-908 +++$+++ 47785 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ About the objective? I mean, think we should foster separateness? Is there anything wrong --
05-908 +++$+++ 47786 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that in the context that you've described it that would be constitutionally very problematic.
05-908 +++$+++ 47787 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Fine -- it would be problematic?
05-908 +++$+++ 47788 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-908 +++$+++ 47789 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why?
05-908 +++$+++ 47790 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because I can conceive that it's not -- unlike education, where the goal is to educate the entire community and to help to prepare the community, the students to live in that community, it's not a traditional role of government --
05-908 +++$+++ 47791 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well then, let me change Justice --
05-908 +++$+++ 47792 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Please let me finish the line of questioning. Assume with me that it is not an unconstitutional objective, which I am sure it's not. Could the -- could the government achieve that objective by barring people from moving into Little Italy or giving a preference to some people to buy real estate in Little Italy if they are of Italian ancestry? Could it do that? Absolutely not, right?
05-908 +++$+++ 47793 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would agree with you.
05-908 +++$+++ 47794 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it would appear that even if the objective is okay, you cannot achieve it by any means whatever. And the mere fact that the objective of achieving a diverse balanced society is perfectly all right, although certainly not the only objective in the world. The mere fact that it's okay doesn't mean you can achieve it by any means whatever?
05-908 +++$+++ 47795 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would submit that there's a fundamental difference between the circumstances you've described and a school system which takes all comers and is tasked to educate them by preparing them to live in a pluralistic society.
05-908 +++$+++ 47796 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, my slight modification of Justice Scalia's hypothetical -- and it proceeds on the same theory -- is suppose there's a huge demand for housing. A developer has a plan to build 500 units. Can the city say, we'll grant you the permit on the ground, on the condition that 30 percent of all the houses go to minorities? That means people will live together. Then we can have a school, a school that can be diverse.
05-908 +++$+++ 47797 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would say not, because housing decisions are inherently private, unlike public education. And there's no way to know how those benefits are being distributed, if they're going to be comparable. I would say no, it is not comparable to the schools.
05-908 +++$+++ 47798 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, your system is the one that gives a choice to the individuals.
05-908 +++$+++ 47799 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does, and when there are more choices than there are seats available.
05-908 +++$+++ 47800 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does that make a difference? What if you adopted a plan that insisted on a more or less rigid 60-40 ratio at every school and assignments were made on that basis. It was not a follow-on to a choice system.
05-908 +++$+++ 47801 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think --
05-908 +++$+++ 47802 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would that be unconstitutional?
05-908 +++$+++ 47803 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Excuse me, Mr. Chief Justice. I'm sorry to interrupt. I think in each circumstance it depends on the status of the school system.
05-908 +++$+++ 47804 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The same -- the facts are otherwise the same, except you conclude that private choice contributes to further division rather than integration and so the assignments are made on a 60-40 basis.
05-908 +++$+++ 47805 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that is roughly the circumstance that existed in the first Seattle case, Mr. Chief Justice. And additionally, I think that you then have to move into the realm of what's constitutionally permissible and can in a constitutionally permissible use of race a school system accommodate other values like choice and neighborhood ties and family connections to the school system.
05-908 +++$+++ 47806 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I still don't have your answer. Is strict assignment 60-40 without regard to choice constitutional or not?
05-908 +++$+++ 47807 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I -- I would want to know more about the system because I think strictly if there's nothing else and there's no flexibility, I think it presents narrow tailoring problems.
05-908 +++$+++ 47808 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And how does this not present narrow tailoring problems if -- if the -- when you get to the fact of choice, the sole criteria at that level is the same as would be the case in a 60-40 assignment.
05-908 +++$+++ 47809 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we have accommodated choice to the extent there are seats available. And then we go to family connections. And then we -- in operation, admit everyone who lives close to the school. And then as to those that live further away, we look to see what's the school's racial demographic. Is it significantly different than the community's? These schools we have talked about have been the objects of significantly more aggressive segregation efforts, and the board wanted to preserve those.
05-908 +++$+++ 47810 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ One of the, one of the factors our prior cases looked to was whether the plan has a logical end point. What is the logical end point in this plan?
05-908 +++$+++ 47811 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the board actually at every turn reflected in the record discussed whether it was necessary to continue the use of race, whether to narrow it, and eventually to end it. And I think it is in the joint appendix at 408, the superintendent's testimony of the, simultaneously the measures that the board was implementing in terms of resource allocation, implementation of new programs, because they realized that by diversifying choice, they could hopefully achieve some of these same ends, not as quickly, not as efficiently, but that they could achieve them. That's been indeed the entire trajectory of Seattle's integration efforts since the first Seattle plan.
05-908 +++$+++ 47812 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in Grutter we said, to shorten it just a little bit, at page 329-330 of the U.S. Reports, 539, "the law school's interest is not simply to assure within its student body some specified percentage of a particular group because of race ... that would amount to outright racial balancing which is patently unconstitutional." And that seems to be what you have here.
05-908 +++$+++ 47813 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that the term racial balancing has two significant meanings. One is a plan that does not foster a compelling interest. And second, a plan that is too rigid, a quota, for instance, that might not pass narrow tailoring given the context. In this case we're not after a rigid set of numbers, and certainly not after a rigid set of numbers for their own sake. The purpose was to have schools that had become diverse through integration efforts not stray too far from the community's demographic because we're trying to prepare students to live in those communities.
05-908 +++$+++ 47814 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The problem is that unlike strategic siting, magnet schools, special resources, special programs in some schools, you're characterizing each student by reason of the color of his or her skin. That is quite a different means. And it seems to me that that should only be, if ever allowed, allowed as a last resort.
05-908 +++$+++ 47815 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The board here was trying to distribute, sort out seats that were available at these popular schools; and so it devised a system whereby every student had the opportunity to be assigned to at least one of those popular schools; and as far as the record shows in plaintiffs' briefing, there's no material differences between those -- those popular schools.
05-908 +++$+++ 47816 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you have quotas for, for racial hiring of your faculty in these schools?
05-908 +++$+++ 47817 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
05-908 +++$+++ 47818 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why not?
05-908 +++$+++ 47819 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think the board has ever found that necessary to, to achieve diversity in the faculty.
05-908 +++$+++ 47820 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Justice Kennedy's question, I think, was is this basically a kind of last report? Or how close to a has resort is it? What's the history of this? I thought the history involved a lawsuit to desegregate the schools, a much more rigid system of racial -- abuse of race. Ultimately you come to this. Now you stop this. And what happened after you stopped it?
05-908 +++$+++ 47821 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What happened is that, that it --
05-908 +++$+++ 47822 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, what is the history basically? Am I right?
05-908 +++$+++ 47823 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The history is that the board had both narrowed the use of the integration tie breaker in '99 and 2000 and then continued it for the 2001 school year. We were -- in 2000-2001 school year, we were enjoined in 2001 to use it in that year, which was considerably disruptive. But the board was also, the measures that it had implemented, implementing magnet schools at Rainier Beach and Chief South high schools in the South End, implementing it in --
05-908 +++$+++ 47824 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But that's not what I'm thinking.
05-908 +++$+++ 47825 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry.
05-908 +++$+++ 47826 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I mean I'm thinking that, I thought as I read this, and you have to correct me because you have a better knowledge, originally the schools were highly segregated in fact. People brought a lawsuit. Then to stop that Seattle engaged in a plan that really bused people around on the basis of race. That led to white flight. That was bad for the schools. They then tried a voluntary choice plan. This is part of that plan. Then when they abandon this plan, they discover more segregation. Is that basically right or not?
05-908 +++$+++ 47827 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ When, when this plan has -- this -- the description is yes, basically right. When this plan was suspended in, after the Court of Appeals enjoined it, the board had, as I said, experienced some considerable disruption in the assignments because of the timing of the injunction. But the board was also looking at the effect of the race-neutral, if you will, program measures that it had implemented. Such that now, Ingram high school in the north end of Seattle is much more popular. Nathan Hale is no longer over-subscribed. There's less demand for Ballard, but there have been --
05-908 +++$+++ 47828 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think your, do you think your schools as they are operated now are segregated?
05-908 +++$+++ 47829 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We have some change of conditions, but the basic conditions remain, the trends has not been positive. For example, and I think that the petitioner picked --
05-908 +++$+++ 47830 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ To say segregated, segregated -- you refer to some of the schools as segregated. And I, that's not what I understand by segregated.
05-908 +++$+++ 47831 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not, not in the sense --
05-908 +++$+++ 47832 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, you know, if you belong to a country club that, that -- that has 15 percent black members, I would not consider that a segregated country club. So what you are complaining about is, is not segregation in any, in any reasonable sense of the word. You're complaining about a lack of racial balance.
05-908 +++$+++ 47833 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We are not complaining about segregation resulting from purposeful discrimination. That's --
05-908 +++$+++ 47834 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's the only meaning of segregation.
05-908 +++$+++ 47835 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I --
05-908 +++$+++ 47836 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're talking about racial balance.
05-908 +++$+++ 47837 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Talking about schools that are on the one end racially isolated. The Solicitor General mentioned two of those. And talking on the other end about preserving the diversity that we had achieved through these years of effort in these north end schools.
05-908 +++$+++ 47838 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I think you're also --
05-908 +++$+++ 47839 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Justice Alito and Justice Breyer and I myself am interested: Can you tell us what has happened since the plan's been enjoined?
05-908 +++$+++ 47840 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-908 +++$+++ 47841 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, have you gone back to square one? And it's just, there's no diversity at all? Or is there substantially more diversity? Can you tell us about that? Because it's important. It may mean that you don't need to identify students by the color of their skin in assignment.
05-908 +++$+++ 47842 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It, it may mean the board confronted with the circumstances might well make that decision independent of this litigation. But let me answer the specific. Let's take Franklin High School to begin with. In, in 2000, that school was -- had 25 percent white enrollment. In 2005, it had 10 percent white enrollment. In the ninth grade, which is really the, the level at which we see the effect of the segregation tie breaker, in 2000, the white enrollment was 21 percent; it was 8 percent in 2005. Go to Ballard High School on the other end. Ballard was 56 percent white students in 2000; it's 62 percent in 2005. The ninth grade class has moved from 46 percent white students to 58 percent white students. Keeping in mind that that school is now significantly less popular than it was, I think those effects would probably be, be more extreme. But the plan -- I want to emphasize, the plan was to try to disperse demand and to foster choices that would result in diversity, not to compel it. We do not --
05-908 +++$+++ 47843 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How do, how do you square your objective of achieving racial balance with your disinterest in the situation at Cleveland and Rainier Beach? Those are the most unbalanced schools under your definition, and yet those are not affected at all by this plan. Why, why are you not concerned about that?
05-908 +++$+++ 47844 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they are affected by the plan in this in this way, that in the past the district had used mandatory measures, busing students across town, to try to integrate those schools. And the board decided after many years of effort that it would no longer do that, but it was also of the firm conviction that it would allow students who wanted the opportunity to opt out of those schools to do so. At the same time, it implemented magnet schools at Rainier Beach, there's a new building under construction at Cleveland. And so --
05-908 +++$+++ 47845 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are the students who are attending those schools getting the benefits of attending a school that's racially balanced? And if they're not, why are you not concerned about that, if that's an important objective of your program?
05-908 +++$+++ 47846 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We, we are concerned about improving the quality of education in all the schools. We do not mandate that a student attend a school for integration purposes as we once did.
05-908 +++$+++ 47847 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why?
05-908 +++$+++ 47848 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because it, it's important to the credibility and functionality of the school system to have a system that is accepted by the public, by our constituents. And so people like choice; they also like neighborhood schools; they also like diverse schools. And the board recognized when it set about to develop this plan that accommodating all of those values would require some trade-offs. And the board, familiar with the local conditions, familiar with the history, did just that in what I submit was a narrowly tailored and appropriate way.
05-908 +++$+++ 47849 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I go back to the Cleveland school that Justice Alito mentioned? An I correct that there were 16 percent whites under the plan? And I'm just wondering what happened to it during the last couple of years?
05-908 +++$+++ 47850 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Cleveland is now about 8 percent.
05-908 +++$+++ 47851 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And it was -- about half as many whites as there were under the plan.
05-908 +++$+++ 47852 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't remember the precise number in 2000, but that sounds about right.
05-908 +++$+++ 47853 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Madden, there was a question raised about your categories, that is, you have white and then everything else. And it was suggested that if you are looking for diversity, what was -- the schools that you just mentioned had a large percentage of Asian-Americans, but they don't count. What is your response to that?
05-908 +++$+++ 47854 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the -- the problem that the board was addressing was principally a, a problem of the distribution of white and non-white students. The -- as a generality, 75 percent of all non-white students in the district lived in South Seattle. And that was true for all the ethnic groups except Native Americans, who are a very small --
05-908 +++$+++ 47855 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is that a problem? Suppose you have a school in which 60 percent of the students are either of Asian ancestry or Latino ancestry, and 40 percent are white as you classify people. And there are no African-American students at all. You would consider that to be a racially balanced school, would you not?
05-908 +++$+++ 47856 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would say if that circumstance occurred, that that would be something that the board would have to pay attention to and consider. But the fact of the matter is that --
05-908 +++$+++ 47857 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Nothing under the plan requires that, does it?
05-908 +++$+++ 47858 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, because the numbers in terms of the distribution of ethnic groups, separate ethnic groups and the benefits or impacts of the plan were spread proportionately --
05-908 +++$+++ 47859 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what is the theory behind that? Is, the theory is it that the white students there or the Asian students or the Latino students would not benefit from having African-American classmates? It is enough if they have either Asian classmates or Latino classmates or white classmates? How do you -- how do square that with your, your objective of providing benefits that flow from racial balance?
05-908 +++$+++ 47860 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I may, I may have confused the answer to the hypothetical with the, with rationale on the ground, which was that we did not have that kind of single minority ethnic group disparity existing in any school. I was saying, however, that if that existed, I think that would be something the board would have to be mindful of. As a practical matter, because our non-white ethnic neighborhoods in South Seattle are themselves quite integrated, that the movement under this plan did not produce disparities for or against any particular ethnic group. And so I think in the end it might have been more divisive to have individual tiebreakers for the separate minority ethnic groups.
05-908 +++$+++ 47861 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What criteria of race does the school, just out of curiosity, does the school district use? I mean, what if a particular child's grandfather was white? Would he qualify as a white or non-white.
05-908 +++$+++ 47862 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would say -- well, the answer is --
05-908 +++$+++ 47863 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, there must be some criterion. There are many people of mixed blood.
05-908 +++$+++ 47864 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The district has no criteria itself. The district uses classifications that are developed by the Federal Government but allows parents to self identify children.
05-908 +++$+++ 47865 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It allows parents to say I'm white, no matter what?
05-908 +++$+++ 47866 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That allows the parents to self identify, and the record in this case through the testimony of petitioner's president is they were aware of no abuse of that.
05-908 +++$+++ 47867 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Seems like a big loophole.
05-908 +++$+++ 47868 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It seems like one but according to the record, it's not an issue. I'd like to --
05-908 +++$+++ 47869 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't defend the choice policy on the basis that the schools offer education to everyone of the same quality, do you?
05-908 +++$+++ 47870 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, yes. Yes. They offer -- the popular schools to which everyone had access under this plan who wanted access, I think it's -- there is no dispute.
05-908 +++$+++ 47871 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How is that different from the separate but equal argument? In other words, it doesn't matter that they're being assigned on the basis of their race because they're getting the same type of education.
05-908 +++$+++ 47872 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, because the schools are not racially separate. The goal is to maintain the diversity that existed within a broad range in order to try to obtain the benefits that the educational research show flow from an integrated education.
05-908 +++$+++ 47873 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even though in the individual cases the students, including minority students, and I gather 89 to 100 of the cases are being denied admission on the basis of their race?
05-908 +++$+++ 47874 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They're not being denied admission. They're being -- seats are being distributed to them. This is not like --
05-908 +++$+++ 47875 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They are being denied admission to the school of their choice?
05-908 +++$+++ 47876 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. But this is not like being denied admission to a state's flagship university. I think for that proposition, I would cite Justice Powell's opinion in the Bakke case where he was at some pains to point out that a school integration plan is wholly dissimilar to a selective university admissions plan.
05-908 +++$+++ 47877 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If we look at the things that Parents are concerned about when they're considering where their children are going to high school, we look at things like SAT scores, for example, or performance on statewide tests, would we see that, the oversubscribed schools and the undersubscribed schools have similar test scores?
05-908 +++$+++ 47878 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It depends on what school you're talking about, Justice Alito. In this case, I think the most important point to start with is that there was no contention that there was any material difference in quality between the five popular high schools.
05-908 +++$+++ 47879 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if we looked at Garfield and Cleveland, what would we find?
05-908 +++$+++ 47880 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You would find a reasonable basis to perceive a quality difference between those two schools, but this plan didn't assign any students to Cleveland. I want to take a moment, if I can, to turn to the issue of individualized consideration, because so much emphasis has been placed on it in the earlier discussion. It seems to us, first of all, that this Court in Grutter said that not all uses of race trigger the same objections and that the Court must be mindful of the context. This is not, as I've said, a selective or merit-based system where we adjudge one student to be better than the other. We do consider individual factors before we get to race, starting with choice and family connection, and how close you live to the school. But ultimately, this is a distributive system which, as Justice Powell -- as I noted, Justice Powell said in the Bakke case, is quite wholly dissimilar to a merit or selective-based system. What it seems to us is being suggested by the United States and by the petitioner is a system that would force an individualized merit-based review on any kind of race conscious program, specifically an assignment to public schools. That rule allows the means to define the ends; and it ends up, I think, defeating the purpose that the Court had of not stigmatizing --
05-908 +++$+++ 47881 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the reason that our prior tests have focused on individual determination is that the purpose of the Equal Protection Clause is to ensure that people are treated as individuals rather than based on the color of their skin. So saying that this doesn't involve individualized determinations simply highlights the fact that the decision to distribute, as you put it, was based on skin color and not any other factor.
05-908 +++$+++ 47882 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, in Grutter you said specifically that individualized review was required in the context of university admissions. In this context, the kind of review, the specific kind of review that I understand the United States to urge and the petitioner to urge, serves no purpose, and it may itself be stigmatizing in the context of public schools where everyone gets a seat.
05-908 +++$+++ 47883 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You're saying that individual treatment makes no sense in terms of the objective here. I thought that's what you were saying.
05-908 +++$+++ 47884 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, that is correct. I am saying, however, that this plan, consistent with narrow tailoring, provided consideration of individual circumstances, including an appeal on hardship grounds for someone who felt that they had been denied a school that they needed to be in.
05-908 +++$+++ 47885 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the emphasis on the fact that everybody gets into a school, it seems to me is misplaced, but the question is whether or not you can get into the school that you really prefer. And that in some cases depends solely on skin color. You know, it's like saying everybody can have a meal but only people with separate skin can get the dessert.
05-908 +++$+++ 47886 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, like the Michigan cases, sometimes student in the end of the day have an assignment determined by race. Just like in the university cases, at some point race will be a tipping factor. It's different, though, when we put someone in a basically comparable school.
05-908 +++$+++ 47887 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you're saying every -- I mean, everyone got a seat in Brown as well; but because they were assigned to those seats on the basis of race, it violated equal protection. How is your argument that there's no problem here because everybody gets a seat distinguishable?
05-908 +++$+++ 47888 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because segregation is harmful. Integration, this Court has recognized in Swann, in the first Seattle case, has benefits. The district was --
05-908 +++$+++ 47889 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it seems to me you're saying you can't make an omelet without breaking eggs. Can you think of any area of the law in which we say whatever it takes, so long as there's a real need, whatever it takes -- I mean, if we have a lot of crime out there and the only way to get rid of it is to use warrantless searches, you know, fudge on some of the protections of the Bill of Rights, whatever it takes, we've got to do it? Is there any area of the law that doesn't have some absolute restrictions?
05-908 +++$+++ 47890 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are many areas of the law, certainly in the First Amendment and the Fourth Amendment, that have considerable flexibility.
05-908 +++$+++ 47891 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what about the Fourteenth? I thought that was one of the absolute restrictions, that you cannot judge and classify people on the basis of their race. You can pursue the objectives that your school board is pursuing, but at some point you come against an absolute, and aren't you just denying that?
05-908 +++$+++ 47892 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that in Grutter and Gratz, this Court rejected the absolute and instead described discretely, which we feel we need, and which is why we are not urging an absolute position. We say that we indeed comply with the requirements of narrow tailoring, and that the plan therefore should be upheld.
05-908 +++$+++ 47893 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And the question of integration, whether there was any use of a racial criterion, whether integration, using racial integration is the same as segregation, it seems to me is pretty far from the kind of headlines that attended the Brown decision. They were, at last, white and black children together on the same school bench. That seems to be worlds apart from saying we'll separate them.
05-908 +++$+++ 47894 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We certainly agree, Justice Ginsburg. We'd go one step further and note that in Brown, this Court said that the effects of segregated schools are worse.
05-908 +++$+++ 47895 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There's no effort here on the part of the school to separate students on the basis of race. It's an assignment on the basis of race, correct?
05-908 +++$+++ 47896 +++$+++ TRUE +++$+++ MR. MADDEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And it is in effect to bring students together in a mix that is not too far from their community. I see that my time has expired. Thank you.
05-908 +++$+++ 47897 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Madden. Mr. Korrell, you have four minutes remaining.
05-908 +++$+++ 47899 +++$+++ FALSE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. There were some questions of my friend Mr. Madden about the record and the statistics about enrollment, and I'd like to draw the Court's attention, particularly Justice Breyer and Justice Stevens' questions about what the schools look like now. If the Court looks at pages 6 and 7 of our reply brief, we provided the enrollment data. The information on page 7 comes from the school district website that provides enrollment data at the individual schools. In 2005 and 2006, enrollment at the oversubscribed schools is now 54 percent non-white, which is greater than it was under the district's --
05-908 +++$+++ 47900 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ This is the -- as I gather, the plan where race is used, has to do only with the ninth grade. And therefore, what you would like to note is when you look at the ninth grade after they stopped using any racial criteria at all, what happened to those ninth grade classes. Did they become more heavily separated or did they retain their diversity? Are the numbers that you are about to read us, which I have in front of me, going to do that? Tell us that? I think they're about the whole school.
05-908 +++$+++ 47901 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They are, Your Honor, but they're about the whole school after four years of operating without the race preference. So each of the four years they're represented in the aggregate shows the effect that I think Your Honor was asking about. So, the record in this case shows the Seattle schools are richly diverse. It's very important in our view that the Court not lose site of that. We've talked about integration and segregation, but I urge the Court to take a look at the data the petitioners submit regarding the actual enrollment in those schools. A couple of other record citations I'd like to bring to the Court's attention. Justice Kennedy, I think, asked about considering race at a last resort. It's simply not the case that the school district looked at race as a last resort. And I would draw the Court's attention to the superintendent's testimony at joint appendix 224 and 25, where he said in essence, the reason we didn't consider race neutral plans is because we were interested in racial diversity.
05-908 +++$+++ 47902 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The numbers I have here, Franklin went from 25 percent white to 12.7 percent. Roosevelt, which was basically a white school, jumped up from about 51 to 59. Ballard jumped up from about 56 to 62. Then Garfield went down some, more mixed. But those were the worst ones; am I right on that?
05-908 +++$+++ 47903 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think the numbers that you're reading are from the difference between the 2000 and -- '99 and the 2000 enrollments.
05-908 +++$+++ 47904 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
05-908 +++$+++ 47905 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The numbers I was trying to bring to the Court's attention were the difference between the enrollment under the race-based plan and the enrollment in 2005 and 2006, which shows significant and continued racial diversity in Seattle's high schools. Counsel suggested also that there is no material difference among the five oversubscribed schools. And I would draw the Court's attention to the testimony of the board president at joint appendix 261 to 274, where she discusses in detail the programmatic differences. It is true that those five schools were oversubscribed and they were popular, but they all provide unique programs, some of which as we indicated in our briefs, required children to meet certain prerequisites to be able to attend.
05-908 +++$+++ 47906 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was the board simultaneously trying to introduce similar programs or attractive programs in the undersubscribed schools?
05-908 +++$+++ 47907 +++$+++ TRUE +++$+++ MR. KORRELL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I'm perhaps not the best person to answer that. I believe the board has been trying to introduce programs at all of its schools that would make each school unique, and I think that includes the undersubscribed schools as well. Justice Breyer asked a question about the -- about the process of this litigation, and my understanding is there was never a lawsuit against Seattle to compel desegregation, that they were always following a plan.
05-908 +++$+++ 47908 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
05-915 +++$+++ 47912 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++  +++$+++ We'll hear argument next in 05-915, Meredith versus Jefferson County Board of Education. Mr. Gordon.
05-915 +++$+++ 47914 +++$+++ FALSE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Crystal Meredith wanted to do what most moms and dads do all across this country. She wanted to put her son's hand in hers and walk around the corner and enroll her son in school. But the enrollment, there was a barrier, and the pickaxe, that barrier was person satisfied as a quota. There were seats within the school. It wasn't at capacity. It wasn't near any one of the percentages or tipping percentages that the quota system in Jefferson County public schools applied. But she was not allowed in.
05-915 +++$+++ 47915 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Was that because she applied 4 months late? If she had applied before the deadline in March, would you be here? Would there be any issue?
05-915 +++$+++ 47916 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, of course, Justice Ginsburg, she moved into the system in August. When she moved into the system, she was assigned to a school called Breckenridge-Franklin, which was an all year round school. Then she was -- her choice was managed and she was sent an hour away from where her other school is. She applied by transfer, which is the system that you use.
05-915 +++$+++ 47917 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Where was she living before?
05-915 +++$+++ 47918 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think she was living in Florida, and she moved into Kentucky.
05-915 +++$+++ 47919 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So she -- that was -- August was the first opportunity she had to apply?
05-915 +++$+++ 47920 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. So that's across the board. Anyone that moves in, they are -- there is a cluster school or an attempt school, and if you are not -- a majority of the time you are not allowed there because of your race. In other words, they want to assign children to schools that don't have the greater percentages of either African-American or Caucasian. So in Bloom Elementary, although it was 67-33 -- and keep in mind in kindergarten, according to their own rules and regulations, didn't even apply. The plan was so inflexible --
05-915 +++$+++ 47921 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But she, she could have -- if she had been there at the deadline, the child would have been admitted to -- if she had been there in March instead of August?
05-915 +++$+++ 47922 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the deadline applies to that school which presumably is closest to one's residence. Now, whether or not you get into that school or don't get into the school still depends on the quota.
05-915 +++$+++ 47923 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we're past that. When she didn't get the assignment that she requested for her son --
05-915 +++$+++ 47924 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sure.
05-915 +++$+++ 47925 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- did she appeal that?
05-915 +++$+++ 47926 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ She filed a transfer. The transfer was denied. And at that time, litigation had commenced and because litigation had commenced -- and routinely these appeals are denied. All of her efforts were futile.
05-915 +++$+++ 47927 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ How about for first grade? Did she make an application for first grade?
05-915 +++$+++ 47928 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Me understanding is that she did. That was denied, because the only time Joshua got into --
05-915 +++$+++ 47929 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that's in the record, that she made an application for the first grade?
05-915 +++$+++ 47930 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe it is. I believe it is. In either event, if she didn't it would have been futile because we had already made her the third amended complaint on behalf of all the parties, and we had asked for injunctive relief within the litigation. But Joshua did not get into the school because of -- until they moved. They had to move a block away. So if you live in one block and you can't get into that school, your choice is managed. The plan was clearly inflexibility and it didn't apply to kindergarten anyhow, but it still caused our Joshua to go an hour away from his home.
05-915 +++$+++ 47931 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Do you have a claim for damages as well.
05-915 +++$+++ 47932 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-915 +++$+++ 47933 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect to this plaintiff?
05-915 +++$+++ 47934 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. I believe it's the third amended complaint, the May 2nd complaint, and there was a request for $25,000 damages. And within these schools, in other words, this honorable Court has never applied, other than in remedial, has never applied compelling interest in a K through 12 setting. In fact, those rights are not co-extensive. The school -- this honorable Court has previously stated in, for example, the Hazelwood case, which was a First Amendment right case, that that didn't apply to K through 12, or should it be 1 through 12 setting. And in the Hazelwood case, that was a basic First Amendment right and of course the First Amendment right was exactly what Justice Powell championed as academic freedom within the Bakke case. So clearly Bakke and Grutter are distinguishable. This falls into Gratz, where you clearly have a quota, not less than 15 or greater than 50 percent, is totally inflexible as applied to our --
05-915 +++$+++ 47935 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ How does it compare with the system that was in effect from, what was it, 1975 until 2000?
05-915 +++$+++ 47936 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry. It's the same remedial program that -- this Court has found even in Dowd that when the remedial program has achieved its result we should no longer carve out that exemption under the Equal Protection Clause.
05-915 +++$+++ 47937 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Do you think that there's something of an anomaly there, that you have a system that is forced on the school, that it doesn't want it, works for 25 years, and then the school board doesn't have to keep it any more, but it decides it's worked rather well, so we'll keep it. What's constitutionally required one day gets constitutionally prohibited the next day. That's very odd.
05-915 +++$+++ 47938 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I take issue that it worked very well. In other words, did the Jefferson County --
05-915 +++$+++ 47939 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The board decided it liked the way things were going, so it kept it or something close to it.
05-915 +++$+++ 47940 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, of course Brown versus Topeka Board of Education was time applicable. If you use time applicable now for the Jefferson County Public Schools --
05-915 +++$+++ 47941 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm talking about the plan that they've had for 25 years, and they decided to keep it.
05-915 +++$+++ 47942 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And in the Hampton case, which I won, all right, they didn't go to any race-neutral alternatives at all. As Justice Kennedy pointed out -- I'm sorry.
05-915 +++$+++ 47943 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Gordon, in responding to Justice Ginsburg's question, don't you have to deal with the fact that this Court said in the second Swann case that the -- that a school district, particularly a school district like Swann which had been in violation, had been found in violation, had the same interest after unitary status had been attained in maintaining the unitary status as it had in reaching unitary status beforehand; that if those interests are identical why doesn't it follow that the means to achieve those two interests, unitary status from segregation in one case, preservation of unitary status in the other, are reasonable if they are identical?
05-915 +++$+++ 47944 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Souter, this Court over and over again has said once a remedial plan is accepted there should be race-neutral alternatives under the narrow and tailored requirement. What this school board did after I won --
05-915 +++$+++ 47945 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Race-neutral alternatives for what? To accomplish what?
05-915 +++$+++ 47946 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To accomplish the same means. In other words, what they could have done, as Justice Kennedy pointed out, was put more magnet schools, more traditional schools, have more open enrollment.
05-915 +++$+++ 47947 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Gordon, isn't it the case that once you've achieved unitary status, which means that the effects of past intentional discrimination have been eliminated, the only way you can lose unitary status is to discriminate intentionally? Isn't that right?
05-915 +++$+++ 47948 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly. That's the Dow case, that says you no longer --
05-915 +++$+++ 47949 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And isn't there a distinction between unitary status and unitary condition? Unitary condition is a descriptive situation. It describes a district in which there is, in fact, enough of a racial mix so that there is no credible claim either that there is de facto or de jure segregation; isn't that correct? There is such a thing as unitary, a unitary condition?
05-915 +++$+++ 47950 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly.
05-915 +++$+++ 47951 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And is the preservation of a unitary condition a legitimate or indeed a compelling governmental objective?
05-915 +++$+++ 47952 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In Hampton, this -- our Court found that it was unitary status as opposed to unitary condition.
05-915 +++$+++ 47953 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Uh-huh.
05-915 +++$+++ 47954 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If you want to go with unitary condition, then I still think you go back to Brown and you say has it worked. In other words, let's make it time applicable. Does this honorable Court --
05-915 +++$+++ 47955 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What do you mean, it doesn't work? I don't understand.
05-915 +++$+++ 47956 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It hasn't worked. It just absolutely hasn't worked. So we've decided --
05-915 +++$+++ 47957 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't understand what it is that hasn't worked.
05-915 +++$+++ 47958 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Why do we have to choose between diversity and educational outcome? I thought it was supposed to be both. Why can't we have diverse -- why can't we have them both. It's not diversity or educational outcome. It's diversity and educational outcome. For 30 years in this country --
05-915 +++$+++ 47959 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's what your friends on the other side are arguing.
05-915 +++$+++ 47960 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The friends on the other side are arguing that there's some type of improvement in educational outcome solely because you sit black children next to white children.
05-915 +++$+++ 47961 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not an improvement exactly, but maybe from the Constitution's point of view. That Constitution wanted, as they said in the Slaughterhouse cases, to take people who had formerly been slaves and their children and make them full members of American society. And part of that was that the State couldn't insist that they go to separate schools. Now, the question from a constitutional point of view that you're being asked is how could that Constitution which says that this is intolerable, that segregated school, and insist that the school boards in Swann and elsewhere take the black children and white children and integrate them? How could the Constitution the day that that decree is removed tell the school board it cannot make that effort any more, it can't do what it's been doing, and we'll send the children back to their black schools and their white schools? That I take it is why the Court in Swann said explicitly that you could use race as a factor in the public schools when the school board so chooses. Now, that's the general question that I think Justice Ginsburg began and Justice Souter was following it up. And I would appreciate your response.
05-915 +++$+++ 47962 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My response is that you have those series of cases that say once you've achieved the unitary status, you know longer get to carve out that exemption to the Fourteenth Amendment, and if we're going to carve out these exemptions to the Fourteenth Amendment, if we're going to say we're going to not apply Gratz where it's a quota system and we are solely, without any type of individual holistic review applied to these kids, then there should be some improvement in --
05-915 +++$+++ 47963 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ How would you apply a holistic review to a kindergartner?
05-915 +++$+++ 47964 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, of course this system didn't apply to kindergarten anyhow. But the answer is it's not. You have to decide.
05-915 +++$+++ 47965 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I can understand an approach to an applicant for an elite school and so you judge it on all these merit factors and other factors. But for a child entering the first grade, I don't understand this individualized holistic approach. What else is there other than that the child is of a certain age and therefore will enter a certain grade?
05-915 +++$+++ 47966 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That it would violate your ruling in Gratz --
05-915 +++$+++ 47967 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I want to know -- you said that there are alternate, alternative means, so I'm asking what they are.
05-915 +++$+++ 47968 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Out of Hampton, there was no race-neutral -- race alternative means used. For me, I would use all these millions of dollars. I would reduce teacher-student ratio. I would -- I would give incentive pay to the better teachers. I would more magnet schools, more traditional schools. We presuppose that we're going to have bad schools and good schools in this country. I don't think we can no longer, longer accept that. We can no longer accept an achievement gap of 25 to 30 points by the majority of African American kids in Jefferson County, Kentucky, and throughout this country by the fourth grade. Educational outcome is the only key, the only key to unlock the chains of poverty.
05-915 +++$+++ 47969 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And it's not that white children and black children are no longer sitting together on the same school benches?
05-915 +++$+++ 47970 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Then let's make sure they go to the better schools. In Jefferson County, Kentucky, racial politics is involved when we had so much white flight. African Americans in Jefferson County, Kentucky, the largest percent go to the worst performing schools. The lowest percent go to the better performing schools. That can't be constitutional. That can't be discriminatory, and that can't be an exemption under the Fourteenth Amendment and Equal Protection. I'd like to save a little bit, the remainder of my time, Your Honor.
05-915 +++$+++ 47971 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, counsel. General Clement.
05-915 +++$+++ 47973 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Petitioner's son was denied the opportunity to transfer from Young Elementary School to Bloom Elementary School solely on the basis of his race.
05-915 +++$+++ 47974 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ General Clement, can I ask you a question that's prompted really by your argument in the last case. I wonder about the purity of the motive that's required. Supposing you had a city like Chicago with a neighborhood school system and in one neighborhood there was a school that was 100 percent African American, both student body and faculty, and up on the North Side there's a school that's 100 percent white, both students and faculty. Would it be permissible for the school board to decide that it would be healthy for both schools to have five African American schools in the North Side school and five white teachers in the South Side school?
05-915 +++$+++ 47975 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens --
05-915 +++$+++ 47976 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And then order that, hire teachers to do that?
05-915 +++$+++ 47977 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think I'd have to -- I mean, I think it would depend --
05-915 +++$+++ 47978 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The only purpose is racial integration.
05-915 +++$+++ 47979 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think if you build into the hypo that the only purpose was race and then it was done in a way that made it express that the teachers were going to be moved, that you were basically going to have five and five, you were going to have a quota at the two schools on the basis of race, I would say that that would be unconstitutional. I would think, though, that there are many ways you can accomplish similar objectives without making it so explicit. And I do think that in this context, I mean, there is an independent constitutional value in not having these kind of express racial classifications drawn.
05-915 +++$+++ 47980 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I understand, and I'm just wondering whether in your view that independent value could ever be trumped by the obvious countervailing value of having some African Americans see some white teachers and vice versa?
05-915 +++$+++ 47981 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, but I think that's the point, which is that is an important objective, but I have little doubt that that can be accomplished without the kind of five by five quotas.
05-915 +++$+++ 47982 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You have doubt -- you have little doubt. Are you an educational expert? I mean, the -- it seems to me from what I read, that there is a terrible problem in the country. The problem is that there are lots and lots of school districts that are becoming more and more segregated in fact, and that school boards all over are struggling with this problem. And if they knew an easy way, they'd do it. So I don't know whether this is exactly the only way to do it or not. I do know courts are not very good at figuring that out. And I guess that's why the Court previously has said it is primarily up to the school district. What's your response?
05-915 +++$+++ 47983 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Whatever it takes.
05-915 +++$+++ 47984 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, if I could be clear, though, what I was saying in response to Justice Stevens' question was really focused not on the broader problem, but specifically with respect to faculties. And I think that one is a little easier in the sense that I don't know of any school districts that have tried to maintain the kind of express quotas in teaching that he was indicating. I'm not here to tell you that this problem is simple to solve. I'm here to tell you, though, that I think the Constitution provides an answer.
05-915 +++$+++ 47985 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Just say some. We want to -- we're going to make a decision there will be some white teachers and some African-American teachers in the other. And we're going to do it no matter -- if the Constitution permits it. And that's our only motive.
05-915 +++$+++ 47986 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Stevens, let me tell you what I certainly think they could do, which is to say, look, you know, we don't have any balance in these two faculties. What we're going to do is we're going to mix some of them up, we're going to do it in a way that looks at a variety of factors, including who is good with young kids, who is good with older kids.
05-915 +++$+++ 47987 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My example is 100 percent motive to avoid 100 percent segregation.
05-915 +++$+++ 47988 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I think if what they end up doing at the end is not only a hundred percent motive, but a racial classification, then I think runs afoul of the Constitution.
05-915 +++$+++ 47989 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Just some, any without violating the Constitution.
05-915 +++$+++ 47990 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Just to be clear, our answer to the hypothetical a hundred percent motivation, no racial classification, is that it is still okay. Now, some members of the Court may disagree with us on that. But what I would say is it probably doesn't have that great an import in practice, because although it is easy to come up with the hypothetical that race is the absolute and sole motivating factor, I think in this context in particular, I mean, nobody -- you know, nobody is trying to do this solely for a race-based motive. In this context, they also have an educational goal.
05-915 +++$+++ 47991 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ General Clement, do you know how Joshua would have been assigned prior to the establishment of unitary status in this case?
05-915 +++$+++ 47992 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He would clearly have been assigned to one school, and one set of schools on the basis of his race.
05-915 +++$+++ 47993 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You don't know whether that would have been the magnet or the so-called resides school or somewhere else?
05-915 +++$+++ 47994 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I guess I don't. And maybe I'm missing something. But I think that -- you know, the dual school system predated the court ordered decree, which is part of where we have gotten to with resides schools and the like. If I can come back to the facts of this case, I think it's important to recognize that he was denied transfer to Bloom, even though there were empty seats available at Bloom school. So if he had been an African-American, he would have been allowed to transfer to Bloom. Instead, he was prevented. And there was an empty seat sitting there in that school. And that's why I think this case does prevent a very stark racial quota.
05-915 +++$+++ 47995 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ May I ask you this, and I think this applies to the case we have got, as well as to Justice Stevens' hypothetical. You said in Justice Stevens' -- in answer to Justice Stevens' hypothetical, that they could achieve a result, legitimately achieve a result of racial mixture within the respective faculties of these schools if they took other things in addition to race into consideration. You mentioned ability as teachers and so on. But at the end of the day, the object of doing this, which Justice Stevens' hypo assumed, and I think the object of doing it which your answer assumed, was the achievement of racial mixture in the faculties. My question is: Why do thy have to hide the ball by saying, oh, we're going to consider these other things, ability to teach, educational credits, whatever you could come up with when at the beginning and at the end, the objective is to achieve a racial mix? Why can't they do that candidly and employ a criterion that candidly addresses that objective?
05-915 +++$+++ 47996 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Souter, there are several responses. One is that the Constitution puts a particular premium on avoiding express racial classifications.
05-915 +++$+++ 47997 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And it has developed that concern in cases in which the obvious use of race was to hurt or to stigmatize. Here, there is stigmatization going on as between black and white, when we say there is a value in mixing them up. Therefore, why should that same concern about referring to race at all be applied in this case.
05-915 +++$+++ 47998 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Souter, you may have developed that jurisprudence in cases where it was clear there was stigma going on, but you have extended it in Croson and in Adarand across the board. And I have to say --
05-915 +++$+++ 47999 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We have extended it in cases in which benefits were being denied. In Justice Stevens' hypothetical, and so far as I know in the kindergarten system in these cases, no educational benefit was being denied.
05-915 +++$+++ 48000 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think --
05-915 +++$+++ 48001 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Nothing was being rationed.
05-915 +++$+++ 48002 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think choices were being denied. And I think you made the distinction earlier between an educational -- guarantee of some educational opportunity and a choice. But --
05-915 +++$+++ 48003 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But that is simply another way -- when you say it is the choice that's being denied, and that has to be the focus of the analysis, that is simply another way of saying you may never use the means of race-conscious distribution to achieve the educational objective. You're saying the same thing in a different way.
05-915 +++$+++ 48004 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That may be, Justice Souter. But what I guess I would say is the logic of your argument would certainly require reconsideration of the Gratz case. And this Court in that context thought that individualized consideration even if it was going to be very difficult in the context of the University of Michigan's 25,000 admissions to the undergraduate program, this Court said individualized consideration was part of the constitutional guarantee.
05-915 +++$+++ 48005 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In Gratz, the characteristics of individuals that could be considered were arguably relevant to a distribution decision. Here, the sole point is not to achieve a quota by relaxing other standards. The whole point is to achieve a value which comes from mixing the races, from distribution. And, therefore, why is it appropriate to look to other things as opposed to looking at that candidly, if that is a legitimate objective?
05-915 +++$+++ 48006 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because I think, Justice Souter, if you think it is an important value to have a degree of integration in the schools, well, I think you can take race neutral means that will get you a degree of integration in the schools. What I think is troubling, and what happens in cases like this --
05-915 +++$+++ 48007 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But you may use those race neutral means only for the purpose of achieving that mixture. I take it that's the assumption of your answer.
05-915 +++$+++ 48008 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
05-915 +++$+++ 48009 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The objective is fine. The important thing is simply to hide the ball.
05-915 +++$+++ 48010 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But if you decide that candor is an affirmative good in the use -- in the race area, I think what you get is necessarily what you have here, which is strict racial bands. 50, 15 percent. That's not a degree of integration. It is a clear effort to try to get the individual schools to mimic the overall demographics --
05-915 +++$+++ 48011 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Why is -- I'm trying to find out -- I understand what you think of Gratz. We can agree or disagree about that. But the overall view of the Constitution, that interpretation that you have in your mind, if it really forbids it, no use of race, I mean, basically -- all right? Think -- go back to Cooper versus Aaron. Go back to the case where this Court with paratroopers had to use tremendous means to get those children into the school. That's because the society was divided. Here we have a society, black and white, who elect school board members who together have voted to have this form of integration. Why, given that change in society -- which is a good one -- what -- how can the Constitution be interpreted in a way that would require us, the judges, to go in and make them take the black children out of the school? See, my objection to your approach to the Constitution is primarily a practical one.
05-915 +++$+++ 48012 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I understand that, Justice Breyer. But I think the answer to that is that the lesson of history in this area is that racial classifications are not ones where we should just let local school board officials do what they think is right.
05-915 +++$+++ 48013 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Are you prepared to just say, all right, they can do it some, just be careful about it? How far will you go with that?
05-915 +++$+++ 48014 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think everybody concedes that strict scrutiny is going to apply here.
05-915 +++$+++ 48015 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ All right. So you're saying we'll do it some, just be careful about it?
05-915 +++$+++ 48016 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, we would -- you know, I think we would have to look at the details of the plan. That's what narrow tailoring meant. And I think that's what -- you know, Justice Kennedy made the point in his opinion in Grutter that the problem with approving the first blunderbuss opportunity that you see to use race in a context is that then you deprive the courts of any role trying to refine matters, and seeing, maybe the racial situation would be narrowly tailored, but it is sure not these 50-15 bands.
05-915 +++$+++ 48017 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Judge Kozinski thought the real problem here was we should not deify strict scrutiny. That's what's caused all the problems.
05-915 +++$+++ 48018 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And Justice Stevens, he probably could have cited two of your opinions for that proposition. But you know, the rest of us do have to work with --
05-915 +++$+++ 48019 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is often true that sometimes doctrines do have unintended consequences when you push the logic of extremes. There is no doubt about that.
05-915 +++$+++ 48020 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's no doubt about that, but the rest of us do have to work with this Court's precedents --
05-915 +++$+++ 48021 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And they also have unintended consequences when this Court ignores them.
05-915 +++$+++ 48022 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. And it also has some real world consequences when we decides we're not going to apply the normal scrutiny we would to racial classifications just because we've made some -- I don't know based on what judgment that in this case, it is benign, so we can trust the local school officials.
05-915 +++$+++ 48023 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it isn't that we've made a judgment, the local school board has made a judgment which has a lot of experience under both systems.
05-915 +++$+++ 48024 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's a lot of experience in Brown, too, and those were local school boards, too. And I think the lesson is --
05-915 +++$+++ 48025 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Do we know the race of the school board here? I mean, that was not -- how do we know these are benign school boards? Is it stipulated that they are benign school boards?
05-915 +++$+++ 48026 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I missed that in the joint stipulation, Justice Scalia. I would like to say one -- if I could make one point here, which is, I really do think that it's worth looking at how this operates in practice. And the fact that it leaves seats effectively fallow in schools. Because that really marks it as a quota. And it's interesting, when that same district court judge --
05-915 +++$+++ 48027 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Was that how it worked under the plan that was forced on the school district? I thought it was roughly the same plan?
05-915 +++$+++ 48028 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was, Justice Ginsburg. But I think there's a difference when you move past unitary status. It's interesting. In the very case where the court, Hampton II, where the same district court found unitary status, he then because the Equal Protection Clause was not shielded by the decree, had to apply it to the use of these same racial bands in the context of magnet schools. And what did this same district court judge find there? He found they operated, quote, as a hard racial quota. Because the effect of these 50-15 bands was to keep hundreds of seats at Central High School, a popular magnet school empty, and away from African-American students because the district wanted to maintain its predetermined racial balance.
05-915 +++$+++ 48029 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Am I right in thinking that the government in 2000 opposed terminating this -- the compulsory plan?
05-915 +++$+++ 48030 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You mean the United States government?
05-915 +++$+++ 48031 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-915 +++$+++ 48032 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Or the school board? They actually both opposed, which is something -- shows you something of the anomalies that you can get from this situation, which is the school board wanting to continue its practice of using these racial guidelines actually opposed the finding of unitary status. I would say, though --
05-915 +++$+++ 48033 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I thought it was the United States?
05-915 +++$+++ 48034 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yeah, we had some specific objections in which we thought that two of the green factors were not satisfied. That argument was rejected by the district court. If I can go back to the judge's finding about the magnet schools, what is so interesting is the same judge finds the same guidelines to be a hard racial quota as to the magnet schools, but not as to the neighborhood schools. Why does he make that distinction? Because he finds that the neighborhood schools are basically equal, and therefore, denying a student an opportunity to attend to one rather than another was not an injury of constitutional magnitude. But I would have thought it is far too late in the day, and the Chief Justice suggested this as well, to say that just because two schools are basically equal, you can deny a student the right to attend one, and assigns one and only one based on his race. Thank you.
05-915 +++$+++ 48035 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, General Clement. Mr. Mellen?
05-915 +++$+++ 48037 +++$+++ FALSE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: This case presents a story of a community that once maintained racially segregated schools, that desegregated those schools only when a court ordered it, and that today maintains racially integrated schools with broad community support. This case presents a story of a board of education that replaced a desegregation decree with a student assignment plan that works, that stopped the white flight that was the result of the desegregation decree and has stabilized enrollment in our public schools. This case presents a success story and it's a success that was achieved in compliance with this Court's strict scrutiny test.
05-915 +++$+++ 48038 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Does this case present the story where the meaning of Brown versus Board of Education is you can never take race out of politics?
05-915 +++$+++ 48039 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think, Your Honor, that Brown is very much distinguishable. In Brown, the Topeka board maintained two systems of schools. And admission to those schools, admission, not assignment, was based solely on race. That stigmatized the black children. It sent the message that the white race was dominant and superior and that the black race was inferior. That caused great harm to those black students and this Court properly remediated it.
05-915 +++$+++ 48040 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And this doesn't? I mean, this which is somehow based on the notion that a school that is predominantly black or overwhelmingly black cannot be as good as a school that is predominantly white or overwhelmingly white? That doesn't send any message?
05-915 +++$+++ 48041 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The plan, Your Honor, is not based solely on that supposition. This plan is based on the supposition that a school that is racially identifiable, and that would include a white racially identifiable school, does not provide to the students in that school the compelling benefits that our board believes are presented by racial integration. The compelling benefits, some of which are the benefits that this Court identified in Grutter, from the racial diversity that was a byproduct --
05-915 +++$+++ 48042 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You're talking about white flight, you're not talking about black flight. And what's going on here is makes sure that there are a certain number of white students or as high a proportion as you can get. In schools that would be otherwise be overwhelmingly black. And it seems to me if you are appealing to stigmatization, that -- that is based on an assumption that it seems to me is stigmatizing.
05-915 +++$+++ 48043 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This plan -- and the Federal courts have held for years school districts do have an interest in avoiding white flight. And As I said, this plan has prevented -- has stopped white flight and has stabilized enrollment in our schools. But this -- this plan was adopted, Your Honor, for the purpose of providing the compelling benefits of racial integration, some of which this Court identified in Grutter, some of which the District Court found were not present in the University of Michigan Law School case, but are present in an elementary and secondary system of schools. For example, the District Court found that this plan makes our public schools more competitive and attractive and results in broader community support for those schools.
05-915 +++$+++ 48044 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I, I think that's probably true. I think it is also probably true that the people in your community and the people on your school board are acting in the utmost good faith. And that what they have done is going to help the education of many students. The question is whether or not we can say that an insincere school board, people that want to play the race card, who want to play the race trip, the -- the race chip, that want a system in which they can use race for political advantage, can do this based on the color of the individual child's skin. That's what's involved here.
05-915 +++$+++ 48045 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that's what is involved in this case, Your Honor, because the District Court found that the board's motives were indeed legitimate and that there was no basis --
05-915 +++$+++ 48046 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm conceding that. The Constitution assumes that this might not always be the case. Are we going to look at the sincerity of the school boards, school by school board, school board member by school board member?
05-915 +++$+++ 48047 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that would be proper for the courts to do that, Your Honor, but the other issue that's presented by these cases is whether the use of race is narrowly tailored. And the District Court found in this case that it was, was for a variety of reasons. So I think that this case does not, Your Honor, present the hypothetical that you suggested and in other cases with different factors --
05-915 +++$+++ 48048 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But it, but it presents the principle that this Court is confronted with. If we for the first time say that a system that has achieved unitary status. So that the courts no longer have the authority or the need to supervise them, can then turn around and use individual skin color as a basis for assignment, we've never said that. And that takes us on a very perilous course.
05-915 +++$+++ 48049 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You've never said it, Your Honor and the question has never been presented. A similar question was presented in the University of Michigan Law School case. And this Court held the use of a racial classification to satisfy a compelling interest and in a narrowly tailored manner --
05-915 +++$+++ 48050 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the university cases this Court ran as far away as it could from using racial quotas. It talked about the fact that there was an individualized assessment. At, at issue was a university student who could understand the reasons for being rejected on, on the grounds of race, race being one criteria. That isn't this case.
05-915 +++$+++ 48051 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's not this case, Your Honor, because our board asserts a different compelling interest. The compelling interest asserted by the Michigan Law School was viewpoint diversity. A different kind of -- it's a byproduct of that. This Court asserts an interest in -- this board, I'm sorry, asserts an interest in racial integration and we believe that there are compelling benefits from racial integration and that this board provides them to all students, both black and white.
05-915 +++$+++ 48052 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Once again, once again, one of the rationales for the law school cases was a First Amendment rationale. And you, and I think properly so, say that this is, this is not your interest. I agree with you. But that means that that case is completely inapplicable to help you.
05-915 +++$+++ 48053 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think it's completely inapplicable, Your Honor, because this case presents the same basic doctrinal question that was presented in Grutter, whether a Government agency can use race as a classification with a compelling interest with narrow tailoring. This Court in Grutter identified several benefits of racial diversity. Some of those benefits are presented in the elementary and secondary school context. And we have additional benefits that are presented by racial integration.
05-915 +++$+++ 48054 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Mellen, here is a question I should have asked friends on the other side. But I think it is raised by Justice Kennedy's question, so let me put it out. Are there circumstances under which there is reason to suspect the motivation of school districts when they come up with a plan in effect to require a mixing of the races in the schools that is more or less tailored to the relative percentages in the communities? Is -- are there circumstances in which that would be done for malign as opposed to benign purposes?
05-915 +++$+++ 48055 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it could be, Your Honor. And this Court has said --
05-915 +++$+++ 48056 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And what -- give me some, or give me or an example.
05-915 +++$+++ 48057 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I'm not sure I can think of one because I come from a community with a long history of, of not doing that.
05-915 +++$+++ 48058 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Easy. Easy. Take a school district that is overwhelmingly minority. And -- overwhelmingly black, if you will. And a school board that reflects that. And in which by reason of residential patterns, the white schools, despite the same expenditure of money, same level of teaching and everything else, the white schools are better schools. And the school board could decide we would like our race to get into those better white schools. Not because we want mixing. We just want, want them to get into those schools. Wouldn't that be a situation in which the board could then come up with a -- you know, these good schools ought to have 80 percent blacks in them? I would not consider that a benign objective.
05-915 +++$+++ 48059 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There might be, Your Honor, under those circumstances a compelling interest in doing that. The question would be whether it is narrowly tailored. But --
05-915 +++$+++ 48060 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think there's a compelling interest in doing it at all. They're doing it for a racially selfish reason. They want their constituency, they want the 80 percent of black students, to be in the better schools. You consider that a valid interest, and a non-racial interest?
05-915 +++$+++ 48061 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. No, Your Honor. Of course with that explanation, I do not.
05-915 +++$+++ 48062 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Do you think the school board in that case would use the clumsy means of racial integrational mixing as opposed simply to devoting more money to the black schools?
05-915 +++$+++ 48063 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would certainly think, Your Honor, that a wise school board would use other methods to achieve that result. Yes.
05-915 +++$+++ 48064 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would think so, too.
05-915 +++$+++ 48065 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Why did you say -- in truth, maybe I missed it. In your response to Justice Kennedy, I think you said, when he asked, that this Court has never said that the explicit use of race by a K through 12 school board was constitutional, and I thought the Court had explicitly said that in Swann.
05-915 +++$+++ 48066 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I, I --
05-915 +++$+++ 48067 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I thought that, that Justice Powell explicitly said it. I that Chief Justice Rehnquist had explicitly said it. I thought if you went back in sense to the slaughterhouse cases, you'll find in 1872, this Court thought that the primary objective, the primary objective of that Fourteenth Amendment was to take people who had been formerly slaves and to bring them into this society, and that all of phrases of that amendment should be interpreted with that objective in mind. I mean, it didn't say that explicitly there, but it seems explicitly and implicitly this Court has said that.
05-915 +++$+++ 48068 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I agree, Justice Breyer. And I misspoke, I used one word incorrectly. I said -- I should have said this Court has not held. I agree with General Clement that Swann was dictum, but a very strong dictum. And we do think it applies here. Dictum.
05-915 +++$+++ 48069 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think -- I think we were communicating. Swann was a case where there was de jure discrimination. Bakke was a university case. This is a different case.
05-915 +++$+++ 48070 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is indeed a different case, Your Honor. We do not --
05-915 +++$+++ 48071 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And it's, and it's a troubling case.
05-915 +++$+++ 48072 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do not contend, Your Honor, that the purpose of this plan is to remediate past discrimination against black students. This plan is intended to provide benefits to both black and white students.
05-915 +++$+++ 48073 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So your arguments do not depend in any way on the prior de jure segregation?
05-915 +++$+++ 48074 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They do not, Your Honor. We would agree that we stand on the same footing as the Seattle district, as a unitary district this case needs to be measured against whether a board has a compelling interest and -- or board feels quite strongly that there is compelling interest for the racial classification that's employed in --
05-915 +++$+++ 48075 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What about the other part? Because I think the Solicitor General -- I hope, I don't want to put words in his mouth -- but I think he agrees that Brown held out the promise of an equal education, that the country worked for 35 or 40 years to try to get a degree of integration, and that maintaining it is important. I think the Government agrees with that. They think this case goes too far. And in that I think he's referring to narrow tailoring. It isn't narrowly tailored enough. So I would appreciate knowing why you think it is.
05-915 +++$+++ 48076 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We think it is, Your Honor, for the very reasons that the District Court held it is. The District Court addressed each of these points regarding narrow tailoring which this Court identified in Grutter, looked at them very carefully and concluded that it is narrowly tailored. One of that issues that's already been discussed this morning is individual consideration. We agree with the position that the Circuit Court took in the Ninth Circuit that in a situation in which the compelling interest is racial integration, that it makes no sense to take into account other background characteristics of students other than their race.
05-915 +++$+++ 48077 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If it were to become relevant, would this record show -- this is the school district -- and this would be in the regime of the Court-ordered desegregation plan, because you are just recently emerged from that -- that the school district has tried means other than race conscious, of race classification in order to obtain the diversity benefits you seek?
05-915 +++$+++ 48078 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The school district has, Your Honor. In fact this plan uses those --
05-915 +++$+++ 48079 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And were those magnet schools? And could you tell me about that?
05-915 +++$+++ 48080 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Magnet schools, Your Honor. And with respect to history, Your Honor, it is somewhat complex, because although the Court ruled in the Hampton case in 2000 that the degree was dissolved then, the board honestly felt beginning in 1981 that the decree had been dissolved. And so the board in 1984, 1991, 1996 made what it thought were voluntary modifications to the plan. Beginning in the late 1980s, the board began to introduce more choice into the system including magnet schools, magnet programs. The board uses race neutral lotteries to determine enrollment in some schools. But the board feels and it feels very strongly based on conversations that board members and staff people have had with other school districts that have tried race-neutral measures including Charlotte Mecklenburg, Wake county and San Francisco -- that race-neutral measures alone will not do the job and the experience in those districts indicates that they will not do the job.
05-915 +++$+++ 48081 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But your starting place was the plan that was compulsory, that was forced on the school district in 1975? That is basically the same kind of plan?
05-915 +++$+++ 48082 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I would say that the starting point was that plan. The board has modified it considerably since then to make assignments more stable and predictable, to make the use of race more narrowly tailored. It is in concept the same plan, because it has some of the features, but the board has added many features that that plan did not have. The 1975 desegregation decree was really quite a blunt instrument and that's why it was so controversial in the community. That's why there was massive white flight. This plan, this board has very wisely modified that plan to make it much more acceptable to the community so that we stopped the white flight. We stabilized our enrollment. We have a community now that very broadly, the public opinion surveys show, that supports racial integration whereas in 1975, they were opposed to it, sometimes violently. This is as I said at the outset a success story.
05-915 +++$+++ 48083 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What would happen if you couldn't use this system?
05-915 +++$+++ 48084 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that would depend, Your Honor, on what this Court said we could not use. We do know that four of our schools, magnet schools are now not subject to racial guidelines because of the District Court's decision in the Hampton 2 case. One of those schools, Central High School, is far outside the racial guidelines. It has a black enrollment of about 83 percent. At two of those other magnet schools black enrollment has declined. It's declined by about by about a third in two of those schools. And that is only in the space of a few years. Our school board staff has conducted some hypothetical scenarios as to what would happen without the racial guidelines. Some hypothetical scenarios involve choice. Some involve purely neighborhood schools. All of those scenarios show substantial resegregation, particularly in elementary schools.
05-915 +++$+++ 48085 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Do any of those study the possibilities of the system in which you elect to go into a system where race counts?
05-915 +++$+++ 48086 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Some of those scenarios, Your Honor, did have some degree of choice.
05-915 +++$+++ 48087 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Are they written out anywhere we can see them? Or are there articles on this?
05-915 +++$+++ 48088 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They are not in the record in this case, Your Honor. They were in the record in the Hampton case, so if you read the Hampton 2 opinion you will see that the district court included a lengthy footnote in which he basically summarized those scenarios.
05-915 +++$+++ 48089 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you say your plan has the overwhelming support of the community, does "community" mean those parent who have children in the schools?
05-915 +++$+++ 48090 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Some of the --
05-915 +++$+++ 48091 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It seems to me that ought to be the really -- the people who are the objects of this experiment. Do they think it's doing --
05-915 +++$+++ 48092 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They do indeed, Your Honor. Those surveys were surveys by the University of Kentucky Research Center of parents.
05-915 +++$+++ 48093 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And did the parents' satisfaction with it break out along racial lines? Or was it evenly divided?
05-915 +++$+++ 48094 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was fairly evenly divided, Your Honor. One of our expert witnesses said that -- well, both of them said that they were quite surprised that the findings were so positive. One of the expert witnesses said that unquestionably this is a community that values diversity.
05-915 +++$+++ 48095 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Where is that?
05-915 +++$+++ 48096 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's the testimony of Edward Kiefer, Your Honor, from the university of Kentucky. He was responsible for the survey --
05-915 +++$+++ 48097 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And he's talking about the parents of students in the school?
05-915 +++$+++ 48098 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. That's -- there are some other surveys, I believe, that include the entire community. But I think you'll see in the record some that are parents only. I would like, Your Honor, Justice Ginsburg, to respond very briefly to some of the facts concerning Joshua, because you asked about that. There is nothing in the record that says that Ms. Meredith moved into the district in Florida just when she showed up at Breckenridge-Franklin. With respect to her appeal, in fact the litigation had not commenced when she would have had an opportunity to file an appeal. The stipulation of facts says that she did not apply for Joshua for the first grade. Now, Ms. Bloom -- excuse me. Ms. Meredith -- and this is not in the record because it took place after the record was closed -- but Ms. Meredith reapplied for a transfer after Joshua finished the first grade. That transfer was initially denied. She appealed. The transfer was granted and Joshua does now attend Bloom. I think that's relevant because the Solicitor General made an argument in his brief that this plan allows the student to be trapped in a school. We would certainly not agree that an assignment to any one of our fine schools could be a trap. But in any event, students can reapply each year and that has happened. It happened here in the case of Joshua --
05-915 +++$+++ 48099 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Can you tell me, how is race used? Do the administrators have discretion in the weight they will give to it on a case by case basis?
05-915 +++$+++ 48100 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think exactly, Your Honor. Race is used, as the district court found, really as the final factor, a tipping factor. Residence comes into play. Choice comes into play. Lotteries in some schools come into play.
05-915 +++$+++ 48101 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure how to ask the question: Is it used fairly evenly across the board when it is the tiebreaker?
05-915 +++$+++ 48102 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't used the word "tiebreaker," Your Honor. The record indicates --
05-915 +++$+++ 48103 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To tip the tipping point, whatever.
05-915 +++$+++ 48104 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The record indicates that race would be the dispositive factor in no more than 2 to 3 percent of the choice applications.
05-915 +++$+++ 48105 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That means -- that leads to the question of why do they need it?
05-915 +++$+++ 48106 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think they need it, Your Honor, because it sets a boundary. It defines what racial integration means. If staff had come to this board with a plan that said, our goal is racial integration --
05-915 +++$+++ 48107 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So it's symbolic that race counts?
05-915 +++$+++ 48108 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so, Your Honor. I think it simply sets the outer limits within which our process of choice and other methods of assignment works. Without that boundary, it could be transgressed one student at a time. The guidelines I think are very much like the little boy in the Dutch story who put his finger in the dike because a few drops of water were coming out. He knew it would become a flood eventually if he didn't do that. We think that is exactly the case here, that without these guidelines one student at a time could transgress them and ultimately we would have a resegregated school system.
05-915 +++$+++ 48109 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Mellen, I've been looking at Dr. Kiefer's testimony. Is this what you're referring to: "There was remarkable agreement among every group in Jefferson County Public Schools about how desirable having diversity in the schools was"?
05-915 +++$+++ 48110 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
05-915 +++$+++ 48111 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I have no double about that. I mean, if you're going to ask anybody, you know, do you prefer integrated schools or would you prefer lily-white schools, nobody is going to say give me a lily-white school. Of course nobody's going to say that. I was asking whether the parents whose kids can't go to the schools they want to go to, including the neighborhood schools, do they like this particular system of achieving the racial diversity? Is there any testimony about that?
05-915 +++$+++ 48112 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The great majority do, Your Honor. And I think if you look at the University of --
05-915 +++$+++ 48113 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Black and white alike?
05-915 +++$+++ 48114 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Black and white alike, in large numbers. No plan, Your Honor, can be --
05-915 +++$+++ 48115 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ How do we know that?
05-915 +++$+++ 48116 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, Your Honor, the University of Kentucky survey, which is in the record --
05-915 +++$+++ 48117 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is in the record?
05-915 +++$+++ 48118 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- broke it down by race among parents. It asked whether guidelines were proper. It asked whether assignment on socioeconomic status would be preferred. There are a lot of questions in that survey and I think you might find --
05-915 +++$+++ 48119 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not in your joint appendix here?
05-915 +++$+++ 48120 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's not in the joint appendix. It's an exhibit, I believe, to the stipulation of facts, Your Honor.
05-915 +++$+++ 48121 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There were questions earlier about the status of the particular plaintiff. You're not challenging standing or raising mootness, are you?
05-915 +++$+++ 48122 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, we're not, Your Honor. We're not challenging standing. We're simply saying that Ms. Meredith did not suffer undue harm within the meaning of this Court's decisions and that parents as a whole and students as a whole do not suffer undue harm. There have questions in the first case about an end point. I might address that briefly. We believe that the use of race in this plan is self-limiting in several respects. If racially segregated housing in Jefferson County continues to decline, which it has somewhat since the 1970s, and the board has reason to believe that the presence of racially integrated schools during that period contributed to that -- there are several amicus briefs that were filed in this case that set forth research that supports that conclusion. If racially segregated housing continues to decline and if this plan meets its purpose of diminishing racial stereotypes and promoting better cross-racial understanding throughout the community, we can foresee a time when this board will not see a reason to use this plan or may modify it further to make it even less restrictive.
05-915 +++$+++ 48123 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In a time horizon longer or shorter than the 25-year time horizon that was discussed in Grutter?
05-915 +++$+++ 48124 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I can't predict the future, Your Honor. I can say it could be shorter for another reason. That is that this plan is inherently subject to democratic review by elected school board and by the voters. It could end sooner than that if the board and the voters change their minds. I can't predict whether it might end longer than that. I can only say that this board has a long history of modifying the plan. As I said, they modified it in 1984, 1991, 1996, 2001. It's in the very nature of how a board of education works that they continue to tinker with things.
05-915 +++$+++ 48125 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the attitude is the one that this board has taken, then the same reasons would exist for the plan as long as there is segregation in housing.
05-915 +++$+++ 48126 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I wouldn't limit that, limit it to that, Your Honor. I think that an important factor are racial attitudes in the community. I think that this board feels that the plan does serve to ameliorate racial stereotypes, promote cross-racial understanding. Our community still has a long way to go in that respect. We do have some racial issues in Jefferson County. But we believe this plan helps them. And in the future a board may look at our community, may look at how racial relations work in our community, and may well decide that, even though housing is still somewhat segregated, we can do without this plan or again we can modify it to make it less restrictive, which in fact the history of this plan shows that this board has done.
05-915 +++$+++ 48127 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, what would this board have to have in order for it not to be temporally limited in your opinion? Any plan can be changed in the future. So why does the fact that this can be changed in the future make it a plan that has a temporal limitation?
05-915 +++$+++ 48128 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, it does not have fixed temporal limitation of 25 years or 10 years. As I said, that's not how school boards operate. But it is inherently subject to review on a temporal basis because each time we have a school board election the plan potentially is in play, and it could be modified at any time in that sense. I see that my time is almost up. If there are no further --
05-915 +++$+++ 48129 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ May I just. Was there a petition for a rehearing en banc in this case?
05-915 +++$+++ 48130 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was, Your Honor, in the Sixth Circuit, and it was denied.
05-915 +++$+++ 48131 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Were there any votes in favor of the en banc rehearing?
05-915 +++$+++ 48132 +++$+++ TRUE +++$+++ MR. MELLEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, as I recall the Sixth Circuit's order, it said that no judge asked for a rehearing en banc.
05-915 +++$+++ 48133 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ THE COURT: Thank you, Mr. Mellen. Mr. Gordon, you have 2 minutes remaining.
05-915 +++$+++ 48135 +++$+++ FALSE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. First of all, to respond to one of the questions that was asked, it's very important that it is equally consistent in the 1992 plan to effectuate or to prevent white flight that the plan itself was changed to subjugate African American kids to the worse performing schools. If you find that equally consistent, then you have a question of whether or not illegitimate notions of racial inferiority applied or racial politics applied --
05-915 +++$+++ 48136 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Excuse me. I didn't understand it.
05-915 +++$+++ 48137 +++$+++ TRUE +++$+++ MR. GORDON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in the '92 plan and from that point on, which I showed, which was held in the Hampton plan, in the Hampton case -- in other words, in the Hampton case I proved, or the facts proved or the plaintiff proved, that African American kids were denied entrance into the better schools solely because of race. Within the vacuum of that case, there was also proof that showed the largest percent of African American kids were sent or denigrated or subjugated to the worse performing schools rather than the best performing schools. That becomes the question of racial politics and racial animus, and that's what the '92 plan did. And what it did to attract -- or prevent white flight, was have less African American kids go to the better performing schools on the entire K through 12 setting. That can't be what this Court wants to carve out as an exemption to the Equal Protection Clause. The Equal Protection Clause, that's on neutral parchment with black ink. There's no percents. There's no box to check. We can't have this in our school system, to have another 25 or 30 years in our school system, which will perpetuate racial isolationism because it does nothing to stop the achievement gap. There were race-neutral alternative tracks. All I can say is that, may this day be the embryonic beginning of Dr. King's dream, as paraphrased, that all children are now judged by the content of their character and their education, not by the color of their skin.
05-915 +++$+++ 48138 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
05-9222 +++$+++ 48142 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We will hear argument next in Burton versus Stewart. Mr. Fisher.
05-9222 +++$+++ 48144 +++$+++ FALSE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: In Sharp versus Pain, the Ninth Circuit opinion that first decided the question that's before you today, the Ninth Circuit said, and I'm quoting: "The rule of Blakely that the statutory maximum is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict, was not clear until the Blakely decision itself." The Ninth Circuit is simply wrong. In this Court's Apprendi decision it laid down precisely that rule. At page 483 of that decision this Court described the statutory maximum concept as, quote, "the maximum a defendant would receive if punished according to the facts reflected in the jury verdict alone" -- virtually the identical language.
05-9222 +++$+++ 48145 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Fisher, you know, assuming we read it the way you read it, I've got a Official basic problem that doesn't really surface until you get to the end of the briefs and I wonder if you would comment on it at the beginning of the argument. That is -- or I'll put it in the form of a question. Is the decision which the judge makes here to sentence consecutively rather than concurrently, a decision that requires the finding of any fact about the commission of the crimes themselves or the circumstances of those crimes or about the defendant's character? Does the judge have to make or does the fact -- some fact finder have to make a finding on any of those subjects -- crimes, circumstances, character of the defendant?
05-9222 +++$+++ 48146 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, he does, Justice Souter.
05-9222 +++$+++ 48147 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What is that fact?
05-9222 +++$+++ 48148 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's precisely the same kind of fact that the judge had to find in Blakely itself. Under the Washington, Revised Code of Washington, the statute, the statute for running sentences consecutively in the fashion that Mr. Burton's were run consecutively, refers the judge back to the very same provision that was at issue in Blakely itself, which is the aggravating factors provision of Washington, which was formerly codified at section 390 and is now codified at section 400. Official
05-9222 +++$+++ 48149 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought the only fact that had to be found was that, given the classification sentencing scheme Washington had, there would be, in effect, a free crime, no incremental punishment, unless there were consecutive sentencing. That's not a fact that falls within any of those categories of crime, character, or circumstances.
05-9222 +++$+++ 48150 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be a fact, Justice Souter, but that is not the way the Washington law works. It is colloquially known as the free crime aggravator. But in the Washington Supreme Court decision in Hughes which is cited at the end of our reply brief the Washington Supreme Court made clear that to invoke that aggravator a court has to find that there was extraordinarily serious culpability or extraordinarily serious harm that accompanies the multiple offenses.
05-9222 +++$+++ 48151 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So it's a misnomer to say it's a mere free crime criterion? It's free crime plus some further fact?
05-9222 +++$+++ 48152 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right. And this Court's decision -- I'm sorry. The Washington Supreme Court decision in Hughes clearly lays that out. If you have any doubt about the way the consecutive sentences work in Washington, I want to give you one other citation, to Official a new Washington Court of Appeals decision that considers a consecutive sentences imposed exactly the same way that Mr. Burton's was. That is to say, they are run consecutively based on the clearly too lenient factor. That case is called State versus Washington and it was just reported at 143 P.3d 606, 143 P.3d 606. The Washington Court of Appeals in that case, considering a sentence just like Mr. Burton's, says that it does trigger and violate Blakely.
05-9222 +++$+++ 48153 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So the extra fact then is a lot like the sort of heinous, atrocious and cruel aggravator? I mean, it's comparable to it?
05-9222 +++$+++ 48154 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly, it's part of the same list. And as this Court said in Apprendi itself, that extra culpability, which is one of the ways this aggravator can be met, is the quintessential type of element that needs to be proven beyond a reasonable doubt .
05-9222 +++$+++ 48155 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ When you say extra culpability, do you mean the nature of the crime? Suppose there are three crimes all committed at the same time -- murder, rape, and kidnapping. They're all very serious crimes. And if you sentence them consecutively, you will take into account that there were three. If you sentence them Official concurrently, it doesn't matter. The Washington court says, we're not just looking to the fact that murder or rape or kidnapping are serious; we're looking to sentence consecutively if do you more than that. You have to look to see that the kidnapping was a special kind of kidnapping.
05-9222 +++$+++ 48156 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Justice Breyer. In section -- the current section is section 589 of the Washington Code and it says that sentences shall run concurrently unless the judge makes an extra finding of exactly the same type the judge is required to find in Blakely. And if you look at Blakely itself, remember Blakely involved concurrent sentences. And so what Washington is doing is saying all sentences should run concurrently unless there's an extra fact, something about the additional crimes that would otherwise be running concurrently, that simply requires the judge to go above and beyond the ordinary concurrent sentences and punish those crimes separately.
05-9222 +++$+++ 48157 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But could the nature of the additional crimes themselves satisfy it? In other words, could the judge say, well, all three -- it might be one thing if one were serious and the other two were trivial, but all of these three are very serious. Now, that's in effect a value judgment, not a finding of Official discrete fact. Could that value judgment satisfy the extraordinary criterion that Washington says there must be in addition to free crime.
05-9222 +++$+++ 48158 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it couldn't, and the Washington decision that I've cited to you will help you with this, because it makes it clear that to trigger an aggravator to run sentences concurrently, just as under Blakely itself, there has to be something above and beyond the elements of the crime or the crimes themselves. It can't simply be -- I'm sorry. It can't simply be that there were three crimes committed and all three of them are very serious. It has to be something about the crime, the additional crimes, that takes it above and beyond the ordinary commission of that crime.
05-9222 +++$+++ 48159 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But, Mr. Fisher, even if it's true that there are other examples out there that might qualify for that example, it's not true of this case?
05-9222 +++$+++ 48160 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure I follow, Justice Stevens.
05-9222 +++$+++ 48161 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In this particular case, there was -- it was necessary to make an additional finding of fact, even though there may be cases out there in which you could get consecutive sentences Official without an additional finding of fact?
05-9222 +++$+++ 48162 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You're certainly right that in this case you needed to have an extra finding of fact. There are some situations under the Washington Code and I believe in the majority of other States where it is up to the judge's discretion whether to run sentences concurrently, and he could do it for the reason that Justice Souter described. So what Washington does in its respondent's brief is it cites these other State decisions, from other States that simply have different sentencing systems than we have in Washington.
05-9222 +++$+++ 48163 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm not sure I understand that. I mean, we have not held, for example, that the fact of a prior conviction is something that has to be submitted to a jury under Blakely. Why, if you're determining that sentences run consecutively, isn't that just the same as looking at a simultaneous conviction and saying they're going to run consecutively?
05-9222 +++$+++ 48164 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under some State systems that might be the case, Mr. Chief Justice. However, in Washington the way that the code works is that judges are directed that for multiple crimes the sentences shall run consecutively.
05-9222 +++$+++ 48165 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you'd have -- Official
05-9222 +++$+++ 48166 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Unless they make the exact kind of extra finding, and it refers them to the precise same statute that was at issue in Blakely itself.
05-9222 +++$+++ 48167 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you're saying that that extra finding can't simply be that this is a conviction for a particular serious crime that's going to go unpunished otherwise?
05-9222 +++$+++ 48168 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right.
05-9222 +++$+++ 48169 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So under this system if you had a regime where if you're convicted of murder and you've been convicted of rape before that, you get an enhanced sentence beyond the normal murder sentence, that would not contravene Blakely. But if you're convicted at the same time for rape and murder and those two sentences run consecutively, you say that that does violate Blakely.
05-9222 +++$+++ 48170 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the judge needs to make an extra finding beyond the elements of either of those two crimes to run them consecutively, then it would violate Blakely.
05-9222 +++$+++ 48171 +++$+++ TRUE +++$+++ THE COURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But we've never held that? We've never held that consecutive -- that the treatment of sentences as concurrent or consecutive is covered by Blakely?
05-9222 +++$+++ 48172 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You haven't had a case in the Official Apprendi-Blakely line of cases dealing with consecutive sentences. But what you've done is laid down a rule from the very State that we're dealing with here that says that if the judge needs to make an extra finding beyond the elements of the crimes of conviction and beyond the facts encompassed in the jury's finding of guilt for those crimes, then those findings need to be proved to a jury beyond a reasonable doubt. That's why in this case that line, that rule, is triggered. The Ninth Circuit of course didn't talk about any of this. What it said, as I mentioned, is that it simply took Apprendi to be a purely formalistic rule that had nothing to do with the facts according to the jury verdict, but it just had to do with whatever the State happened to label as the statutory maximum. In Apprendi this Court said, not once but three times, that the statutory maximum concept was triggered according to the facts encompassed in the jury verdict. And like the Washington courts, the Ninth Circuit simply ignored that language in this Court's opinion. Lest there be any doubt about the way that concept mapped onto this case, this Court said in Apprendi itself that the relevant inquiry was not one of form but one of effect: Does the required finding take a defendant to a higher sentence level than would Official otherwise be permissible based on the facts encompassed in the jury verdict?
05-9222 +++$+++ 48173 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Fisher, there's another potential impediment in this case and I would like you to comment on it. That is the petition from the sentence, it was second in time. There was a prior petition that challenged just the conviction, and under the governing statute, to have a second petition, you've got to get permission from the court of appeals and it has to meet stringent criteria. How do you get past that? You went out concentrating on the petition addressed to the sentence which is a second petition.
05-9222 +++$+++ 48174 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This is the very first petition that Mr. Burton has filed against the 1998 judgment. He did file earlier a petition against the original judgment of 1994. In the joint appendix at page 34, that is where that petition is reprinted. He says quite clearly that he is challenging the 1994 judgment in that petition, whereas here this is his first petition against the 1998 judgment.
05-9222 +++$+++ 48175 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So did -- then you are bifurcating the judgment in a criminal case, which is not the sentence. You are saying there's an earlier judgment, and looking at it as we would as if it were a Official civil case, if you have a determination of liability, that doesn't give you a final judgment. The judgment will come at the end of the case when damages are determined.
05-9222 +++$+++ 48176 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, Justice Ginsburg. And if what the State is saying is correct, which is to say that we don't have any judgment at all until the sentence is final, then all you get from that is that Mr. Burton's first petition should have been dismissed and the court could have gotten it dismissed. But we submit what you can't do from that is retroactively change the first petition that he explicitly told the court was against the 1994 judgment, and that he told the court in that same filing on JA 35 and JA 40, that his sentence was still on direct review. You can't retroactively change that challenge to the 1994 judgment into one against the 1998 judgment, for two reasons. One is that if the State is right, the district court wouldn't have had jurisdiction under that 1998 -- challenge against the 1998 judgment either, because as Mr. Burton forthrightly told the court, that sentence was still on direct review. But even if you get past that, we submit that this Court's Castro decision simply doesn't allow a court, especially retroactively, to recharacterize a habeas petition that Official the petitioner himself said was against one judgment as against another.
05-9222 +++$+++ 48177 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you think there can always be two petitions, one -- of sentences on review?
05-9222 +++$+++ 48178 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, there can't, Justice Kennedy. And so what should have happened according to the state's theory, is that the first petition should, should simply have been dismissed.
05-9222 +++$+++ 48179 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Bit is that also your theory?
05-9222 +++$+++ 48180 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's -- this Court hasn't laid down a solid decision. But I think that's a better reading.
05-9222 +++$+++ 48181 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But are you -- are you asking us to say that while the sentence is still under review, there can be no habeas petition filing?
05-9222 +++$+++ 48182 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Am I asking --
05-9222 +++$+++ 48183 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why isn't that up to the option of the petitioner? He can take his chances or he can wait.
05-9222 +++$+++ 48184 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that is a fair characterization, Justice Kennedy. But what Mr. Burton did is he want to the district court saying I'm challenging the 1994 judgment. And as I was saying, under Castro before that gets recharacterized -- Official
05-9222 +++$+++ 48185 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm asking if it is your position whether or not he properly can do that?
05-9222 +++$+++ 48186 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so. But I'm just recognizing that that's a jurisdictional question that this Court would decide for itself. But assuming that he can't do that, what the district court would have had to say is, Mr. Burton, you're not allowed to challenge the 1994 judgment. And let's assume for the moment he could have challenged the 1998 judgment. The district judge would have said, "Now Mr. Burton, you're only challenging your conviction for the 1994 judgment. You need to wait until you're ready to challenge your sentence, and then you can challenge the 1998 judgment." Presumably -- and this is I think a fair inference especially from the petition itself as it is reprinted, since he told the district court that he was challenging his sentence, if he was told he couldn't bring it at that time he would have said okay, I will withdraw it and wait until I can challenge my sentence.
05-9222 +++$+++ 48187 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if the first proceeding was not in fact jurisdictionally barred, then you would lose under the second and successive objection in this case, right?
05-9222 +++$+++ 48188 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know that we would, Justice Souter. Official
05-9222 +++$+++ 48189 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why not?
05-9222 +++$+++ 48190 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because it is a common rule that -- this Court hasn't had a case exactly like this, but the lower courts do all the time; and the Fourth Circuit case in Taylor which I've cited in the reply brief is one of them. Where, it is a common practice for a petitioner to bring one petition against a judgment and then be partially successful, and then bring a new petition against something in the new judgment. And that's essentially what happened here. And it may --
05-9222 +++$+++ 48191 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Aren't those cases in which the first judgment is complete, he simply does not attack everything that was a predicate for the first judgment; and then if there is, in fact, a new trial, and a new judgment, of course, the habeas possibility arises again, whereas in this case, the first judgment was not complete.
05-9222 +++$+++ 48192 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, you put your finger on it exactly. And so, but we still think that, that, either the court had jurisdiction or it didn't. And if it had jurisdiction, then it must be -- fall in somehow into the category that you're talking about.
05-9222 +++$+++ 48193 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that's not necessarily true. Isn't it also possible if, at the time of the Official first judgment the judge could have said, well you really haven't exhausted your remedies because it is not final until the whole thing is over. But nevertheless, because exhaustion is not a jurisdictional matter, I'm going to go ahead and decide it.
05-9222 +++$+++ 48194 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Could a district judge have done that?
05-9222 +++$+++ 48195 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
05-9222 +++$+++ 48196 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think what would have needed to have happened here, since Mr. Burton at pages 35 and 40 of the joint appendix, told the district judge, I'm still challenging my sentence on direct appeal, under AEDPA and customary comity principles, the judge would have needed to say, you need either to renounce that appeal from the State court or renounce this one. You couldn't do both at the same time. Mr. Burton, if he had wanted to, I think it is fair to say, could have gone into district court and said, I now have a new judgment and I'm going to challenge my conviction and sentence because I have no intention of challenging my sentence through State court proceedings. And perhaps he could have done that. But that would be a very different situation than what we have here. If I can turn back to the, not a new rule Official question, another angle at this is not simply to look at the text of this Court's opinion in Apprendi which we submit told a State court in this situation all it would have needed to know, but also perhaps it is helpful to look behind that and look at the statutes that were in play in New Jersey and in Washington. And even if you did that it becomes, we submit, very clear that a district judge, any reasonable trial judge, that is, would have known that Apprendi applied here. What you had in New Jersey was essentially two statutes. One that said an ordinary commission of a crime is punishable up to 10 years. And a second statute that said if you commit that crime with some kind of extra -- extra bad circumstance, there a hate crime, then you get -- you can get a higher sentence. Exactly the same thing was true in Washington. We had one statute that said this is what the, this is what the punishment is for the ordinary commission of this crime. And we had an extra statute that said, but if you commit that crime with extra bad circumstances -- and here the only difference was, there was a list of circumstances, not just a single one -- but if you commit the crime with extra circumstances, then you can get extra punishment. And the analogy that the respondents want to Official draw between the Washington sentencing system and the Federal guidelines just simply doesn't hold up.
05-9222 +++$+++ 48197 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you think Blakely was not a new rule but Booker was?
05-9222 +++$+++ 48198 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's fair to say, Mr. Chief Justice. Because in Blakely all you needed to do was apply Apprendi which said that if you have two different statutory thresholds, the pertinent threshold for Sixth Amendment and Fourteenth Amendment purposes is the one that cabins the judge's discretion based on the facts in the jury verdict. To decide Booker this Court had to take the term statutory maximum and apply that to a different type of threshold, which was as this Court put it a court rule or a quasi legislative enactment. So under -- under the system that this Court reviewed in Booker, you had only a single true statutory maximum. And then you had to decide whether the Apprendi principle ought to be in play for the Federal sentencing guidelines. And if there is any confusion on that, a trial judge could have looked at Apprendi itself where this Court and Justice Thomas's concurrence made clear that there was unique status of the Federal sentencing guidelines that made it a more difficult question. However, here where you didn't have anything Official like that, we had just a simple situation where there were two statutes, one maximum for the ordinary crime, and then an additional maximum for the crime being committed with aggravating circumstances. And so it was a very clear map line. And that's what this Court said in Blakely, of course. It said, it didn't break any new ground in the decision in Blakely. It simply said that, took the state's argument and rejected it by saying our precedents on this point are clear. And it just simply quoted the Apprendi language, that the statutory maximum for Sixth and Fourteenth Amendment purposes is the maximum that a defendant may receive based on the facts and the jury verdict alone.
05-9222 +++$+++ 48199 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There were decisions going the other way.
05-9222 +++$+++ 48200 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There were lower court decisions?
05-9222 +++$+++ 48201 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
05-9222 +++$+++ 48202 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, there were. And I think, if we want to talk about these, it is important first to be clear about what we are talking about. There were, there was a Supreme Court of Kansas that had looked to the relevant language in Apprendi and decided that its sentencing guidelines system could not stand. And then you had, on the other side the Supreme Court of Official Washington, and the Supreme Court of Oregon, and a couple of other State intermediate courts, I think some in unpublished decisions, that had gone the other way. But I think it is very telling, Justice Ginsburg, if you want to look at those State supreme -- I'm sorry, those State supreme court and lower court decisions, because none of them -- not a single one -- quotes Apprendi or even acknowledges the passages in Apprendi that said the test is not one of form but of effect. And there's several passages in Apprendi that said that the statutory maximum was the maximum allowed based on the facts in the jury verdict. So once you take those into account, we submit, as the Kansas Supreme Court realized, there is only one conclusion that you can reach. The only way those lower courts were able to come to a contrary decision was simply to pluck out -- pluck out other sentences of Apprendi and not acknowledge the rest of the opinion. And of course, the rest of the opinion where this Court has these passages, pages 483, 482, are the absolute guts, the building blocks of the opinion itself. It is where the Court canvasses the historical rule that was incorporated into our constitutional system. And so it is not as though that is some sort of dicta that or loose language that this Court had in its opinion. It Official was the very guts of the holding of Apprendi. And we submit that, in a Teague analysis where you are indeed supposed to look to whether a reasonable jurist would have found something, not just the fact that they exist, but whether a reasonable jurist would have reached a given conclusion, once you take the whole of Apprendi into account, there was only one conclusion that a reasonable jurist could have come to.
05-9222 +++$+++ 48203 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I suppose that doesn't make the dissenters in Blakely feel very good.
05-9222 +++$+++ 48204 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Kennedy, I think, as I understand the dissents in, in Blakely, the dissents in Blakely primarily were saying that Apprendi itself was a bad idea. And that Apprendi really wasn't dictated by the Sixth and Fourteenth Amendments. I see almost nothing, in fact really nothing in the dissents of Blakely itself that says taking Apprendi as the law, we can distinguish it from the facts in this case. There was nothing of that in the dissents.
05-9222 +++$+++ 48205 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Of course you have to show that the result was dictated by the prior precedent. That's a strong phrase. We said it in Stringer -- Stringer versus Black. But if it has a new application, that's -- that's new. Even though the principle is the Official same.
05-9222 +++$+++ 48206 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the Stringer test is helpful because there, of course, this Court said that one of its prior decisions was not a new rule, because even though there was a different State sentencing system that slightly different before the Court in the subsequent case, the principle from the prior case dictated only one result. And I think once you go back to the dissents in Blakely and compare them let's say, with the dissents in Booker, on the merits that is, in Booker, I think again it is telling, because the dissenters in Blakely had nothing to say in terms of a possible way to distinguish one case from the other; whereas in Booker, the dissents did point out we don't have to extend it this far. We can limit to it to true statutes and not go this far. So there is a difference. Really what this case, I think one way to phrase it in terms of what it comes down to, is whether when this Court lays a decision down like Apprendi, that has a clear rule and lots of historical, robust reasoning behind it, saying why we are adopting a certain rule, whether it is up to the lower courts, in this case the State courts, to second-guess this Court and say I don't know if the Court really means what it says, as Justice Breyer later put it in the Blakely Official dissent. We think that, we submit what this Court should say is that when we say something is the law, that lower courts ought to assume that's the law, at least until we tell them somehow that the law is different. If there are no more questions on the new rule, I will quickly address the watershed argument. Because if for some reason this Court adopted the state's view that really all Apprendi was was a highly formalistic rule about what is a statutory maximum, and that -- and that just simply labeling, courts could have evaded it, we think that Blakely itself then has to be considered a watershed exception -- a watershed rule. And the reason why is because, is because of an error that runs throughout the state's brief. And the state's position is basically that this can't be watershed because Apprendi and Blakely deal with circumstances where a defendant has already been convicted of a crime and all we're considering is what sentence ought to be imposed. But, of course, that -- that contravenes the very holding of Apprendi and Blakely which is to remedy the fact that the defendant is being sentenced for a greater crime than the jury actually found him guilty of. And -- Official
05-9222 +++$+++ 48207 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ This argument, this argument assumes that we rule against you on whether or not it is a new rule.
05-9222 +++$+++ 48208 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that's right, Mr. Chief Justice.
05-9222 +++$+++ 48209 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Don't you have -- don't you have to address AEDPA before we get to that question?
05-9222 +++$+++ 48210 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the watershed realm?
05-9222 +++$+++ 48211 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In other words, it doesn't matter it it's a watershed, I guess it is a point of argument, but it is not clear that it matters whether it is a watershed rule if you read AEDPA 2254(d)(1) by its terms.
05-9222 +++$+++ 48212 +++$+++ TRUE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If this Court concluded in the Whorton case that watershed did not survive AEDPA, then of course you're right, watershed doesn't -- can't get us home here. But as this case comes to the Court, as I understand it, this Court is considering this case in a posture that it really dealt with in Horn versus Banks where it said that even post AEDPA, what a court is supposed to do is conduct what this Court termed a threshold Teague inquiry as to whether Teague is satisfied. And of course in Horn, this Court mentioned the watershed exception itself. Official So we think that what this Court should really do is address that threshold question to the extent it needs to holistically. If there are no more questions, I'll reserve the remainder of my time.
05-9222 +++$+++ 48213 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Fisher. Mr. Collins.
05-9222 +++$+++ 48215 +++$+++ FALSE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: I would like to begin where Justice Ginsburg began, with the issue of successive petitions. We believe that the petition before this Court is a successive petition barred under AEDPA. Now my brother, Mr. Fisher says that it's not a successive petition because the first petition challenged the 1994 judgment. But that is simply not correct as a matter of the facts of this case. A new judgment was entered in March of 1998. That judgment was entered as a result of Mr. Burton's conviction being affirmed and his sentence being reversed. So when he was in custody, when he filed his first petition, he was in custody pursuant to that Official amended judgment.
05-9222 +++$+++ 48216 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So that is the only judgment that could be attacked on habeas?
05-9222 +++$+++ 48217 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly, Your Honor. So he has an amended judgment filed in March of 1998. He files his first petition challenging his conviction under that petition. Later, in 2002, he files a second petition challenging his sentence.
05-9222 +++$+++ 48218 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It doesn't matter -- I'm looking at joint appendix page 34, date of judgment of conviction, he puts in December 16, 1994.
05-9222 +++$+++ 48219 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He does put that in, Your Honor, but I don't think that's determinative. If you take a look at page 35, on question 8, they say, did you appeal from the judgment of conviction? Answer, yes. If you did appeal, answer the following. And it lays out the facts that he appealed, that his conviction was affirmed, that his sentence was reversed, and then a new judgment is entered in March of 1998. He is not in custody pursuant to the 1994 judgment. He is in custody --
05-9222 +++$+++ 48220 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Where does it say a new judgment was issued in March of '98?
05-9222 +++$+++ 48221 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that's in the joint appendix at page 3, which shows that -- Official
05-9222 +++$+++ 48222 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Oh, I thought you meant it was in his petition.
05-9222 +++$+++ 48223 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no, it wasn't in his petition, Your Honor, but it doesn't seem -- the fact that he was looking back at his conviction, original conviction being 1994, and that's what he wrote down, doesn't mean that that was the conviction and that was the judgment under which he was in custody, because it simply wasn't. The original 1994 judgment no longer existed because a new judgment had been entered. So because -- and I don't think -- I think what we disagree about in this is which judgment, if the first petition went to the first -- to the 1994 judgment, and the second petition went to the 1998 judgment, then we would agree with Mr. Fisher that it is not successive. On the other hand, I believe I heard him say that if you agree with us, that the only judgment in existence at the time he filed his petition was the 1998 judgment. Then he's filed a successive petition with regard to that judgment, one in December of 1998 dealing with the conviction; a second in 2002, dealing with the sentence. So since it's a successive petition and Mr. Burton did not go through the gatekeeping function that AEDPA requires, there is no -- the district court Official had no jurisdiction and subsequently, we believe that this Court does not have jurisdiction.
05-9222 +++$+++ 48224 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The fact is, we're looking at page 34, 34 of the joint appendix, and that is the first petition that was filed; is that right?
05-9222 +++$+++ 48225 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
05-9222 +++$+++ 48226 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So you look at it and it says, filed December 28, and maybe this is what you said. Then it says date of judgment of conviction, December 16, 1994. So looking at that, you'd think that is what he was attacking. Where does it say he's attacking anything else?
05-9222 +++$+++ 48227 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, it doesn't say he's attacking anything else, but the problem with that is that when he filed this petition, he was not being confined --
05-9222 +++$+++ 48228 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but I imagine there are tens of thousands off petitions filed in the Federal system. And I would think that judges when they're trying to look at those petitions, or the magistrate looks at them and says what judgment are you attacking, he has to figure that out often for statute of limitations purposes, or some other purpose. He'd look over there, go down and read that line two, and he'd think yeah, that's the judgment that's being attacked, Official unless of course there's some indication that it's something else. I've never heard of this before. Is there any precedent on that where even though the petition refers to date A, and there's nothing in to suggest anything other than date A, because it turns out that there's a different judgment that in fact, he's being held, which is date B, that the court says oh, you're attacking date B. Is there any precedent that says that's how it's read?
05-9222 +++$+++ 48229 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not aware of any precedent.
05-9222 +++$+++ 48230 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. So this might be the first time. I don't see a reason why you wouldn't read the petition that's filed in an ordinary way and say the judgment that's being attacked is the judgment that it refers to.
05-9222 +++$+++ 48231 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think you have to say the judgment that's being attacked is the judgment by which he's being confined. I mean, he --
05-9222 +++$+++ 48232 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't know what implication this is going to have for a lot of these petitions. I don't know one way or the other, but it might be there are thousands right now in the Federal Official court which have date A, and somebody is going to go back and say no, it is really date B or something. I'm a little nervous about it. If you're not nervous, you're the ones in charge.
05-9222 +++$+++ 48233 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, Mr. Collins, isn't it your position that, number one, the only judgment that he can attack on habeas is the judgment that is extant at the time of the habeas proceeding, and that is the '92 judgment that follows the resentencing? But he may in attacking that judgment attack the premise of conviction which occurred earlier?
05-9222 +++$+++ 48234 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly, Your Honor.
05-9222 +++$+++ 48235 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And if he chooses to attack only the earlier conviction which is the premise of the later judgment, he has simply in effect waived any other issue. And when he comes in later and tries to raise the issue that he could have attacked under the '92 judgment, he's in effect trying to split up his habeas, it's second and successive, and that's why he can't do it.
05-9222 +++$+++ 48236 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's exactly right, Your Honor.
05-9222 +++$+++ 48237 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And further, I thought you told me that the petition goes on to indicate that the conviction while affirmed, that the Official sentence was reversed, looking at 9(b) on joint appendix 35.
05-9222 +++$+++ 48238 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
05-9222 +++$+++ 48239 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Which in other words, he details in the petition the subsequent history that would have resulted in a new judgment.
05-9222 +++$+++ 48240 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Your Honor. Next I would like to go briefly to the question that Justice Souter asked about --
05-9222 +++$+++ 48241 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I just be sure I understand one thing about that? So you're saying at the time he filed the petition on December 28, 1998, he had already had, the second judgment had already been entered by the Washington Supreme Court?
05-9222 +++$+++ 48242 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It had been entered by the trial court, Your Honor, so he --
05-9222 +++$+++ 48243 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Pursuant to the reversal of the --
05-9222 +++$+++ 48244 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly, Your Honor. That sentence is on page -- if you look at page 3 of the joint appendix, that is the second amended judgment filed in the superior court in Washington on March 16, 1998, and he was confined under the authority of this judgment.
05-9222 +++$+++ 48245 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Of the second judgment? Official
05-9222 +++$+++ 48246 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of the second judgment.
05-9222 +++$+++ 48247 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why does it make any less sense to allow separate habeas challenges to, first, the conviction, and then the sentence, than it does to allow separate appeals to this Court from each of those? And once again under the statute, we entertain appeals only from final judgment, but you can bring here on certiorari the judgment of conviction, even though proceedings for the sentence are still in progress.
05-9222 +++$+++ 48248 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think we're talking about the habeas corpus statute and there the Court --
05-9222 +++$+++ 48249 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ A fortiori, we have a lot more control over habeas corpus, which is an equitable remedy, than we do over, what is it, 1257, our jurisdictional statute under certiorari. Why does it make any more sense for habeas purposes to insist that he await the final sentence before he gets review of the premise for that sentence, namely the conviction?
05-9222 +++$+++ 48250 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I'm sorry. I think that a couple things are being confused here.
05-9222 +++$+++ 48251 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right.
05-9222 +++$+++ 48252 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The first thing is when -- is Official this a successive -- is this a successive petition, and we would say it is, because he filed the first one and then the second one. Now the question of whether he can get relief under the first -- under his first habeas petition does not depend on the entry of a final judgment. In fact, under the facts of this case, the judgment was entered in March of 1998. In December of 1998, he filed his first petition. And in fact, the first petition was denied in April of 2000 on the merits, because it had been exhausted, he didn't have to wait for that, because those claims were exhausted and because they were ripe, because they -- the factual predicates had occurred in the trial court, then that was all that was required for him to bring those claims. He didn't have to wait for a final judgment.
05-9222 +++$+++ 48253 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you're saying he can't later bring any claim about the sentence?
05-9222 +++$+++ 48254 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's because Congress in AEDPA has declared that you have to bring all of your claims in your -- at one time, and if you don't, then your petition should be dismissed as successive, unless you go through the gatekeeping solution.
05-9222 +++$+++ 48255 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So that if the statute governing our review had an exhaustion requirement and a Official second and successive requirement comparable to the AEDPA requirement, the case that Justice Scalia put would be exactly like this case?
05-9222 +++$+++ 48256 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe so, Your Honor.
05-9222 +++$+++ 48257 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
05-9222 +++$+++ 48258 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So I just briefly want to go, Justice Souter, to where you started about the consecutive sentence issue. We believe that consecutive sentence is quite different than, from what exists in Blakely and that, in fact, there aren't really additional findings of fact. I think you referred to about the crime, about the circumstances, about the character. In fact, in this case, the finding of fact entered by the trial court in order to justify the exceptional sentence -- this is on page 27 of the joint appendix, finding of fact 18 -- if the court were to sentence the defendant to a standard range sentence on each count run concurrently, he would receive the same punishment as if he had committed only the rape in the first degree. This would effectively result in the free crimes of robbery in the first degree and burglary in the first degree because he would receive no additional penalty for those crimes. Now --
05-9222 +++$+++ 48259 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's -- I keep doing Official this. I'm sorry. Is that sufficient, as you understand it, under the Washington case that your brother cited to me?
05-9222 +++$+++ 48260 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe it is, Your Honor.
05-9222 +++$+++ 48261 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
05-9222 +++$+++ 48262 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought the law was that the sentence shall be concurrent unless, and the unless is that the judge makes an additional finding, the very same kind of finding that he would make in determining aggravating factor.
05-9222 +++$+++ 48263 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the sentence could have been run consecutively because of an aggravating factor. In fact, in this case the trial court judge, in fact, had three independent and separate reasons for running the sentence consecutively. Two of those would be, I think we would say aggravating factors that the Blakely reasoning would apply to. But the court of appeals when it considered this case only looked at the free crimes element to make that decision.
05-9222 +++$+++ 48264 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Maybe you can give me just a little more help on this. The finding number 18 that you referred to says in substance, if by just sentencing him on the basis of the jury verdict he won't get -- he'll get a free pass. But it doesn't say the judge can -- could therefore increase the sentence. It seems Official to me there had to be additional findings that justify a result that he thought would have been a miscarriage of justice.
05-9222 +++$+++ 48265 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. I don't think that's right.
05-9222 +++$+++ 48266 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You think that just having pointed out that he would get a pass would have been sufficient to justify consecutive sentences?
05-9222 +++$+++ 48267 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it would, and the State supreme court affirmed this decision.
05-9222 +++$+++ 48268 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yeah, but he did make additional findings. It goes on. In fact, 19 and 20 are additional findings.
05-9222 +++$+++ 48269 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think -- I mean, I agree with you that he did make additional findings. But --
05-9222 +++$+++ 48270 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It nowhere says they're unnecessary either.
05-9222 +++$+++ 48271 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true, Your Honor. But if you take a look at the court of appeals opinion which is at page 52 and 53 of the joint appendix, when the court of appeals looks at the sentence, what the court of appeals says is, "nonetheless, the sentencing court concluded that the multiple offender policy alone justified the exceptional sentence. The fact that the Official defendant offender score for rape in the first degree is 16, thus invoking the multiple offense policy of the Sentencing Reform Act standing alone, is a substantial and compelling reason and justification for imposing the exceptional sentence here."
05-9222 +++$+++ 48272 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That is to say that that would have been sufficient.
05-9222 +++$+++ 48273 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly.
05-9222 +++$+++ 48274 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But in fact that is not what the trial court premised its decision on, because, as Justice Stevens points out, it went on in findings 19, 20, and 21 about deliberate cruelty, sophistication and planning, and so on. Having been through those findings, the court says, from the foregoing facts the court now makes the following conclusions of law. It seems to me as though the trial court was basing its decision on those foregoing facts as well as upon finding 18, which was the free crime finding.
05-9222 +++$+++ 48275 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that the --
05-9222 +++$+++ 48276 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I guess what I'm saying is the fact that he might have -- I'm assuming for the sake of argument that the trial court might on the basis simply of the free crime conclusion have sentenced consecutively, is simply not the case that we've got, because he sentenced consecutively on that basis and on Official cruelty, sophistication, and so on.
05-9222 +++$+++ 48277 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I believe that the court of appeals felt that that consecutive sentence on the free crimes was -- standing alone would have been sufficient.
05-9222 +++$+++ 48278 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't want to take you up. Let me just have one on the merits, one. I mean, the reason I want you to get to the merits, and I put in my dissent. I was trying as hard as I could to show why I thought this case was wrong. I start the dissent by saying that -- what it says, and then I quote the two sentences that any fact, et cetera, any fact that increases beyond the prescribed statutory maximum must be submitted to a jury and prescribed statutory maximum, again quote, means "solely on the basis of the facts reflected in the jury verdict." Okay. Then at the end of the opinion I say: "Until now I would have thought the Court might have limited Apprendi so its underlying principle wouldn't cause so much harm." Now, the next sentence of course I explain how they might have limited Apprendi, but somehow that disappeared from the opinion because I guess I couldn't think of it. So you're going to tell me now -- I mean, I didn't say how they might have limited Apprendi and I Official couldn't think of how they might have limited Apprendi, and they read Apprendi to mean what it said. Now, you tell me the phrase I might have put in but couldn't think of that would have limited Apprendi?
05-9222 +++$+++ 48279 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think that you could have said that the definition of "statutory maximum" is the traditional statutory maximum that was at issue in Apprendi. And in fact in the Apprendi decision the Court specifically, I think in response to Justice O'Connor's dissent, explained that Walton versus Arizona was still good law. And as you know, in Walton the jury would find somebody guilty of aggravated first degree murder, but they could not receive the death penalty unless the judge made additional findings in a hearing. And it seemed to say that the statutory maximum was death and that in fact the judge's findings would not take you above that statutory maximum. I think that --
05-9222 +++$+++ 48280 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Wasn't that overturned in Ring?
05-9222 +++$+++ 48281 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was overturned in Ring, Your Honor. But when you had lower court appellate judges looking at your decision in Apprendi and seeing the fact that Walton and Apprendi were consistent, it Official was logical for them to conclude, as virtually every single court did except for Kansas, that the definition of "statutory maximum" was the traditional statutory maximum that was in Apprendi.
05-9222 +++$+++ 48282 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Was it logical for them to conclude it or were they -- were they expressing the hope that the Court would draw a distinction which it had not drawn in the formulation that it gave in Apprendi? It's one thing to say that if you draw no further distinctions, Apprendi requires a certain result. It's another thing to say but maybe they will draw a distinction and we're going to predict that they will, and hence not apply Apprendi. Weren't the other appellate courts to which you refer engaged in the latter exercise, which I call the exercise of hope?
05-9222 +++$+++ 48283 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure that I would agree with that, Justice Souter, only because as I think Justice O'Connor explained in her dissent, there are two ways to read Apprendi, and one of those ways would result in upholding guideline systems which are now invalid because of Blakely and Booker, but really quite different from Apprendi because those systems involve what you would call guided discretion. That is, in Apprendi if you wanted the aggravating factor if the Official judge found it by a preponderance then the sentence was enhanced.
05-9222 +++$+++ 48284 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay, but doesn't that require drawing a distinction that Apprendi did not speak to? And isn't it still the case that, I think Mr. Fisher points out that three times we repeated in Apprendi the formula about fact, beyond fact found by a jury on the basis of which, et cetera, the range increases. Isn't the distinction which -- and I trust your recollection here -- that Justice O'Connor had in mind and that they had in mind a distinction which simply was not addressed in Apprendi and would have been something new as opposed to merely an application of what was implicit in Apprendi?
05-9222 +++$+++ 48285 +++$+++ TRUE +++$+++ MR. COLLINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe it definitely would have been something new, Your Honor.
05-9222 +++$+++ 48286 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes.
05-9222 +++$+++ 48287 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Collins. Mr. Roberts?
05-9222 +++$+++ 48289 +++$+++ FALSE +++$+++ MR. ROBERTS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice and may it Official please the Court: If I could begin by addressing the issues that you were just talking about, there was a distinction that the Court could have drawn between Apprendi and Blakely and that reasonable jurists could have drawn and did draw. One was the formal distinction that you were discussing before with the State, which was supported by Justice O'Connor's proposing that as an interpretation in her dissent and the majority not responding to that, that that distinction was contrary to the rule but implausible, but in fact accepting the -- accepting that it was a plausible distinction and saying that it still wouldn't have made a difference, that the Apprendi rule still was important. The second -- and in addition to that, that distinction that Justice O'Connor drew there was consistent with the Apprendi Court's distinction of Walton. And you have to look at what reasonable jurists could have interpreted looking at that decision at the time with those distinctions and what the Court said in Apprendi. But in addition to that, there was more than a formal distinction that could have been drawn between the system in Apprendi and the Washington guidelines system. That's the distinction that we proposed in our Official amicus brief in Blakely and it rested on the fact that sentencing guideline systems like Washington try to channel but not to eliminate the discretion that sentencing judges have to sentence within the otherwise applicable limits. And in the Washington system the sentencing judge retained a significant degree of discretion that reasonable jurists could have analogized to traditional sentencing systems that aren't constrained by Apprendi. The facts, the facts on which the judge could rely to go above the guidelines, were not specified as in Apprendi and as in Ring by the legislature, but it was a wide open set that enabled the judge himself or herself to determine what facts the judge thought could justify a higher sentence; and in addition, the facts alone didn't trigger the higher sentence. The judge had to look at those facts and make the additional determination that those facts rose to the level of substantial and compelling reasons that justified the higher sentence. In that respect, the judge had a degree of sentencing discretion to decide what facts justified it and whether it was in fact justified. Now, of course, this Court rejected those distinctions in Blakely. But the question is whether a Official reasonable jurist could have accepted those distinctions and drawn a difference, and we submit that they could have.
05-9222 +++$+++ 48290 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Roberts, do you have a position on whether we have a successive petition problem here?
05-9222 +++$+++ 48291 +++$+++ TRUE +++$+++ MR. ROBERTS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't have a position on that precise, on that particular issue here, because it can't arise for Federal prisoners. But let me explain why it can't arise for Federal prisoners because perhaps that will give the Court some guidance in resolving the issue. In the Federal system, it's well established that the conviction and the sentence are part of a unitary judgment and that that unitary judgment doesn't become final until the conviction and the sentence have both been fully adjudicated. That understanding is reflected in the language of 28 U.S.C. 2255, which is the statute that authorizes collateral attacks by Federal prisoners. That statute authorizes attacks -- what it authorizes is motions to vacate, set aside, or correct a sentence. So it's clear from that that it's not authorizing collateral attacks on a conviction independent of the attendant sentence. And I think that could shed some guidance here, because 2255 was intended to be a Official parallel and substitute remedy to traditional habeas for Federal prisoners. I would also make a point on the other sort of preliminary issues that were being discussed on the consecutive sentence issue, that it's not only the fact that the judge said that the multiple offense policy standing alone could justify the consecutive sentence here and that the court of appeals relied on that in upholding that. But the court of appeals went further, because petitioner had made a separate challenge to -- and this is on page 52 and 53 of the joint appendix. Petitioner made a separate challenge to the other two aggravating factors. Petitioner argued that the district court wasn't allowed to rely on -- excuse me, the trial court couldn't rely on those two other aggravating factors because he had not relied on them in the original sentencing and this was a resentencing. The court of appeals rejected that challenge and it rejected that challenge because it said the sentencing court concluded that the multiple offense policy alone justified the exceptional sentence, and then on page 53 it said: "The sentencing court did not rely on the additional aggravating factors for imposing an exceptional sentence." So I think these -- Official
05-9222 +++$+++ 48292 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that true in fact?
05-9222 +++$+++ 48293 +++$+++ TRUE +++$+++ MR. ROBERTS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that is how --
05-9222 +++$+++ 48294 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm mean, I'm sure you're reading correctly, but is that in fact true? Because, having talked, as I just read out a moment ago, having spoken about free crimes, aggravating factors, it says, on the basis of the foregoing facts I now draw the following conclusions of law.
05-9222 +++$+++ 48295 +++$+++ TRUE +++$+++ MR. ROBERTS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The trial court said each of the three standing alone was sufficient. But what the court of appeals said is these other two have been challenged, but these other two are -- we're not going to deal with this challenge to these other two factors because they're out of the case. So I think that this Court has to take the case as coming from -- coming from the Washington courts as if what the courts essentially said is those other two are not in the case any more.
05-9222 +++$+++ 48296 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So we can treat it in effect -- and this may be the way to do it -- we can treat it as the ultimate sentencer was the Washington appellate court and that's what they said?
05-9222 +++$+++ 48297 +++$+++ TRUE +++$+++ MR. ROBERTS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, what the Washington appellate court essentially, they could have said petitioner is right, those other two aggravating factors Official couldn't be relied on, and so we're relying on this the standing alone. What they chose to do is, we're going to interpret what the trial court did as relying only on the one. And that was the basis for responding to that claim of error, and I do think that the Court has to take this case as coming on that basis. If I could turn to the issue of Blakely retroactivity for a few minutes. In addition to the points that I made before about why Blakely was a new rule, I would also submit that Blakely is not a watershed rule because it's not a bedrock rule that's essential to a fair trial, and rules are only bedrock if they approach the fundamental and sweeping importance of Gideon, and Blakely doesn't have that kind of importance for three reasons. First, the right to counsel pervasively affects every aspect of the trial, but Blakely affects only the procedure for determining the punishment of defendants who have already been found guilt beyond a reasonable doubt of all the elements of a crime. Second, a felony trial in which the defendant is denied counsel is inherently unfair, but it's not inherently unfair to use the preponderance standard to find facts that determine the extent of punishment, and in fact the Constitution permits the use Official of a preponderance standard to find many facts that have as much or more impact on punishment as facts covered by Blakely. Those include facts that trigger mandatory minimums, facts on which a judge relies to sentence within a broad statutory range, and even facts on which a judge relies to sentence above the standard range in advisory guideline systems. Third, counsel is so essential to a fair trial that deprivation of the right can never be discounted as harmless error. But this Court held in Recuenco that Blakely errors can be harmless, and in reaching that holding the Court expressly concluded that Blakely errors do not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. That conclusion seems to strongly suggest that Blakely is not a bedrock rule essential to a fair trial. If the Court has no further questions --
05-9222 +++$+++ 48298 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Fisher, you have four minutes remaining.
05-9222 +++$+++ 48300 +++$+++ FALSE +++$+++ MR. FISHER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Let me say one word on jurisdiction and then turn to two comments on the Official merits. On jurisdiction, I think Mr. Roberts is right that this rarely happens in the Federal system. It rarely happens in the State system. We can't find any other case where a petitioner has gone in naming, as the State would say, in effect the wrong judgment and saying: "I'm challenging this judgment." But what happened here was just that. Mr. Burton went in and said he was challenging the 1994 judgment. And under this Court's Castro decision, when a pro se petitioner comes in and says I'm doing one thing, in that case making a motion for a new trial, it can't be converted into something else which is a first habeas petition without advising the petitioner. And here, not only was he not advised by the trial court but the State in its own answer, which we attached to our reply brief, agreed that he could challenge the 1994 conviction, and said that conviction is final, and he can challenge that judgment, the 1994 judgment. So it's way too late in the day for the State to stand up to you now and say this pro se petitioner should bear the burden of bringing an improper petition. On the merits, I don't want to elaborate beyond simply just telling this Court that if you look at the Hughes decision and you look at the Washington Official decision from the Washington state courts, it is clear that an extra finding was necessary here, even if the only aggravator in play is the free crimes are clearly too lenient factor. Hughes makes it crystal clear that a judge needs to find, and I'm quoting, "extraordinarily serious harm or culpability arising from the multiple offenses." And to the extent that the State stands before you now and quotes from parts of Mr. Burton's case where the trial judge did not explicitly make that finding, that only reinforces the strength of his habeas petition now, that under Washington state law, the judge needed to make that kind of an extra finding and the judge didn't do so. Let me finally turn to a discussion about whether this Court's treatment of Walton and Apprendi could have given a State judge a reasonable basis to distinguish the system at issue in Blakely. We don't think it could because this Court didn't simply say in Apprendi that Walton stands. It explicitly said the reason why the Arizona capital system as we understand it is okay is because it's nothing more than a system that is permissible under Williams against New York. It's one where on the basis of the jury's finding of guilt that the death penalty is permissible without anything else. And so the only disagreement Official between the majority and Justice O'Connor's dissent was as to the way Arizona's system worked, but any judge that would have looked at Apprendi would have seen, the majority is telling us that a system is okay so long as the jury verdict itself allows the ultimate sentence. That is exactly the kind of system that was not in place in Washington, so a judge should have full well realized. And of course as Justice Ginsburg pointed out, once it became clear to this Court the way that Arizona's capital sentencing system functioned, this Court had little difficulty simply applying the Apprendi rule and agreeing that that system had to be invalid too. And just like the Blakely decision itself, not even the dissenters suggested that Apprendi dictated otherwise. If this Court has no further questions, I'll submit the case.
05-9222 +++$+++ 48301 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Fisher. The case is submitted.
05-9264 +++$+++ 48305 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument first this morning in James versus United States. Mr. Crawford?
05-9264 +++$+++ 48307 +++$+++ FALSE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: We confront today the Eleventh Circuit's troubling interpretation of the otherwise clause of the Armed Career Criminal Act. Under the text and structure of the act, as well as the categorical approach that this Court recognized in Shepard and Taylor, Florida attempted burglary convictions should not qualify as they -- these types of convictions do not involve explicitly, implicitly or even inherently, a serious potential risk of physical injury to another. The Respondent in their brief has enunciated a test to determine whether a conviction should qualify, and that test that they enunciate is basically a district court judge or a sentencing judge uses their common sense and experience to determine whether an offense should qualify. That type of test is not the kind of test that this Court enunciated in Taylor and Official Shepard when it looked at the very elemental approach at determining whether convictions should qualify. The categorical approach that this Court enunciated refers to predicate offenses in terms not of prior conduct but of prior convictions and the elements of those crimes. As such, the Government's argument would open up a -- is a broad mandate that courts could use to bring in almost any type of crime, any kind of felony to be included within the Armed Career Criminal Act. For instance, simple possession of cocaine is a third-degree felony in Florida. It's a five-year statutory maximum. Under the serious drug offense that Congress enumerated, it would only qualify if it had a 10-year statutory maximum and it involved the distribution of drugs. Yet, if the Government's approach to the interpretation of the otherwise clause is to be used, that simple possession of cocaine could qualify if a judge using their common sense and everyday experience determines it presents a serious potential risk of physical injury to another. Obviously --
05-9264 +++$+++ 48308 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If we were looking at attempted generic burglary of a residence, wouldn't that involve conduct that presents the serious potential risk of physical injury to another? Official
05-9264 +++$+++ 48309 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, in Taylor, this Court was clear that under enumerated burglary or generic burglary, the offense becomes a -- has that serious potential risk when the person actually enters the dwelling or enters the structure; and under an attempted burglary, at least in Florida and in most other States, that act has not occurred. You haven't entered, the defendant has not entered the property.
05-9264 +++$+++ 48310 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If the would-be burglar is climbing through the window or on a ladder with the intent to climb through the window, wouldn't that involve almost the same risk or maybe the same risk?
05-9264 +++$+++ 48311 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the conduct -- again, we're looking at, then, a fact-based inquiry. Obviously, some attempted burglaries could get that far. Other attempted burglaries are caught well before that actually occurs. But if you were to say that the attempted burglary was climbing up a ladder trying to get into the place and the person actually didn't get in, again, under Taylor, it says the risk is when the person enters. The risk is much less outside the dwelling than inside the dwelling.
05-9264 +++$+++ 48312 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But in Florida, that would be burglary itself, right, because it covers the curtilage around the house? Official
05-9264 +++$+++ 48313 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The curtilage is a unique concept, I guess in Florida, in that the curtilage is the enclosed space around the house that has some kind of enclosure, whether by fence or whether by bushes. So if the place was enclosed and you had a ladder going up to the residence, that would actually be a burglary within the State of Florida. In other States, it may not.
05-9264 +++$+++ 48314 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right. And we don't even have to ask whether that presents a serious potential risk under the statute, right? Because, if burglary is identified as -- a predicate offense without the need to resort to the definition?
05-9264 +++$+++ 48315 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it would be a burglary in the State of Florida, but under the test enunciated in Taylor, it wouldn't qualify because Taylor was very specific. It is the entering a dwelling or structure. And in Florida, you could be guilty of a burglary without entering a structure or dwelling, just like in a curtilage burglary.
05-9264 +++$+++ 48316 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you could do it in a noncurtilage burglary State simply by putting the ladder up to the window and getting on the first rung of the ladder. I mean, you would have -- you would have taken a substantial step. You would have made an attempt. Now why would that not qualify under the words of the Official statute that referred to a potential risk? Haven't you created the potential for the risk of harm that the statute is getting at when you take the substantial step?
05-9264 +++$+++ 48317 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, trying to use the Court's words in Taylor, Taylor talked about that --
05-9264 +++$+++ 48318 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, how about my question first?
05-9264 +++$+++ 48319 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
05-9264 +++$+++ 48320 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, haven't you in the words of the statute, created the potential for the risk when you take that substantial step by starting up the ladder?
05-9264 +++$+++ 48321 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If you started up the ladder and that's the way the attempted burglary conviction came down, it would be a lot closer call to say that would be a potential risk. Whether it's a serious potential risk under Taylor, it is not as clear.
05-9264 +++$+++ 48322 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you wouldn't analyze it on the basis of whether this defendant started up the ladder. As I understand, you would -- you have to analyze it on the basis of whether generically attempted burglary as a whole presents a serious enough risk; isn't that the way it has to be done?
05-9264 +++$+++ 48323 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's the way that we submit Official it has to be done, and you wouldn't be getting to those facts.
05-9264 +++$+++ 48324 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but I thought your argument was that that analysis would not lead to the result unfavorable to your client because the nature of starting up the ladder did not create or could not reasonably be seen as creating this kind of risk. In other words, I thought you were saying -- maybe I misunderstood your argument -- that the reason the Taylor analysis favors you is that merely taking a substantial step -- which is what the indictment would charge -- could not be seen as creating the potential risk that the statute talks about. Now if I'm not understanding your argument correctly, you know, straighten me out here.
05-9264 +++$+++ 48325 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think I understand. That substantial step in even taking a step up the ladder, Mr. James would submit based on the language of the statute, would not qualify and would not create that serious potential risk of physical injury.
05-9264 +++$+++ 48326 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that's why simply charging attempted burglary will never satisfy the statute under a Taylor analysis as you understand it.
05-9264 +++$+++ 48327 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-9264 +++$+++ 48328 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But even if it would, Official that's only one manner of attempt. And it seems to me, if you're going to do it generically, you have to look over the whole scope of possible attempts and say does the whole scope of possible attempts bear, I would say, a similar risk of the use of physical force as do the specifically mentioned crimes of burglary, arson or extortion? Indeed, I guess you have to use the least dangerous. Wouldn't you say extortion is probably, of those mentioned crimes, burglary, arson, extortion, or the use of explosives, or otherwise involves conduct. Now that "otherwise", that refers me back to the crimes already mentioned, and I would say that means that the unnamed crime has to have a similar risk, at least a risk as high as the least dangerous of the crimes mentioned, which I would take to be extortion. Wouldn't you say?
05-9264 +++$+++ 48329 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of those four, extortion does seem to potentially have the least risk of all those crimes enumerated. But --
05-9264 +++$+++ 48330 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what's a potential risk, by the way?
05-9264 +++$+++ 48331 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ A potential risk --
05-9264 +++$+++ 48332 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ A potential potential? I mean, every risk is potential, isn't it?
05-9264 +++$+++ 48333 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the Government's -- in the Official Respondent's brief, they talked about how risk and potential and serious, some of those worlds potentially knock each other out, and I apologize for using that very word, but --
05-9264 +++$+++ 48334 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You think potential risk is just risk really?
05-9264 +++$+++ 48335 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it is a risk.
05-9264 +++$+++ 48336 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But isn't one way of looking at it -- I mean, I, when I read it, you know, I thought it's just redundant. But it may very well be that the word potential is in there in order to accommodate attempts.
05-9264 +++$+++ 48337 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If that were true, I mean, Congress when they wrote the statute, and in 924(e)(2)(B)(ii), or (e)(2)(B)(ii)(1), they specifically enumerated attempted crimes to qualify under that violence. So it has an element, use of or attempted use of, or threatened use of physical force. But under prong two, they specifically deleted that word "attempt".
05-9264 +++$+++ 48338 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Specifically deleted or didn't --
05-9264 +++$+++ 48339 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They did not include it, and under --
05-9264 +++$+++ 48340 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's quite Official different than specifically deleting it. In other words, it was never there in the proposal.
05-9264 +++$+++ 48341 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In 1984 actually, there was a proposal where burglary would qualify and attempted burglary would qualify. That was passed by the Senate, never passed by the House, never enacted. So later on when burglary was actually defined, burglary was defined as the type of burglary that Taylor came close to defining the same way.
05-9264 +++$+++ 48342 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So, do I understand your submission to be that putting a ladder against the side of a house to attempt burglary, starting up the ladder, that that generically does not pose a potential risk of physical injury?
05-9264 +++$+++ 48343 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If that were the only way to prove an attempted burglary within a State, if that would be -- that would be the requirement, the legal requirement that you have to put the ladder against the house and that's an element of the offense, that to me would be a much closer call; but still, under the analysis that we have provided the Court with the Russello presumption, it should not qualify. But it is a closer case. Whereas categorically when you look at attempted burglaries, the putting the ladder against the Official side of the house is an element of the offense.
05-9264 +++$+++ 48344 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We understand from your friend on the other side that an overt act toward fulfilling the attempt is required under Florida law. In other words, it's not just enough to have burglary tools in your house.
05-9264 +++$+++ 48345 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
05-9264 +++$+++ 48346 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You've got to take an affirmative step toward accomplishing the burglary.
05-9264 +++$+++ 48347 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is an overt act that is beyond mere thinking about it.
05-9264 +++$+++ 48348 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why doesn't anybody -- you know, count. It sounds to me if you're wondering about whether there's a specific serious risk of harm, you could find out. Look at the conviction that in Florida for attempted burglary, look at the convictions for burglary, and see if the harm involved, the number of cases in which people are harmed is roughly similar. We have all these law professors who like statistics. Now they like law in economics and everything. So why don't they go out there and count, and then we'd actually know, instead of sitting here and trying to figure out something I know nothing about. I've never been involved in a lot of burglaries. I don't know how the burglaries operate. I suspect some people are hurt, but rather than my Official suspicion why don't we find out what the facts are?
05-9264 +++$+++ 48349 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We're not going to be able to do that in time to decide this case.
05-9264 +++$+++ 48350 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But wouldn't it be, as a method of approaching --
05-9264 +++$+++ 48351 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It would also keep the professors from other mischief. (Laughter.)
05-9264 +++$+++ 48352 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what do we know about the dimensions of the Florida attempt crime? For example, you have said it doesn't mean that you possess burglary tools. Does it mean or does it exclude casing the house, walking up and down the street, around the block? When is a step substantial enough to constitute an attempt under Florida law?
05-9264 +++$+++ 48353 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's not really a step analysis, a substantial step analysis. It is an overt act. It's some overt act manifesting your intent to actually --
05-9264 +++$+++ 48354 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is that concretely? It's not possessing burglar's tools, it's not casing the place. What qualifies as an overt act that would make one guilty of the crime of attempted burglary?
05-9264 +++$+++ 48355 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If you had a diagram of the Official person's house and you had burglary tools in your car and you had maybe even called to make sure the business was closed and you were driving there and as you're driving there you're telling the person sitting beside you: I'm going to break into that, you know, business at 254 Main Street. That would be enough under Florida law to convict someone for attempted burglary of a structure.
05-9264 +++$+++ 48356 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I guess we have to decide how many attempts involve that kind of initial action, which doesn't seem very physical threatening, and how many of them involve putting a ladder up against the side of the house. How do we possibly figure that out, to decide whether as a whole the degree of risk from attempted burglary is as high as at least the degree of risk from extortion?
05-9264 +++$+++ 48357 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That may be -- that may be a very difficult question to answer, and maybe the Respondent had that obligation in the district court, because they have the obligation to prove that this enhancement has that substantial or that serious potential risk of physical injury to another and of course they didn't do that. But if you look back in this Court's decision in 1985 in Tennessee versus Official Garner, this Court was talking about completed burglaries and it talked about physical violence to a person would only occur in a rare case, and it gave the percentage I think of 3.6 or 3.8 percent of the time. But that's in a completed burglary. That's not even talking about an attempted burglary, what's the risk --
05-9264 +++$+++ 48358 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask you this question: It seems to me there are two ways to read the burglary, arson or extortion examples: That they are clear examples of crimes that would involve harm to individuals, physical injury to another; or they are put in the statute to say, even though they don't involve serious risk, these specific crimes will be covered, because your statistic of 3 percent suggests that burglary itself probably would not qualify as a crime that presents a serious risk of physical injury, but the statute nevertheless defines it. So do you read those terms as giving examples of crimes that would not involve that risk of injury or as examples of crimes that would?
05-9264 +++$+++ 48359 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it can be read either way, although I think even the Government's brief in -- or the Respondent's brief in Taylor talks about extortion and burglary being crimes that can be Official committed with no risk of physical injury to another person and yet Congress still specifically enumerated those --
05-9264 +++$+++ 48360 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Crawford, if you had that meaning in mind, you would not have used the word "otherwise". You would have simply said is burglary, arson or extortion, involves the use of explosives, or involves conduct that presents a serious potential risk. The other purpose of the "otherwise," which means in some other manner, some other manner -- other from what? Other from the preceding ones. I don't think there is any sensible way to read it except, you know, in some other manner than these previously named crimes involves a physical risk; and that is what causes me to say, well, what's the least dangerous of the previously mentioned crimes, and any crime you want to get into this residual category has to be at least as dangerous as that. As I've said, I think that's extortion.
05-9264 +++$+++ 48361 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Using that analysis, it's hard to figure out, but again the Government had this obligation or we submit the Government had this obligation, and they've not shown an attempted burglary to be any more dangerous.
05-9264 +++$+++ 48362 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think that, Official is conspiracy to commit burglary a crime that poses a serious potential risk as burglary does?
05-9264 +++$+++ 48363 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In Florida, or in the Eleventh Circuit, they have determined that conspiracy to commit enumerated offenses do present that serious potential risk.
05-9264 +++$+++ 48364 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Sorry, go ahead.
05-9264 +++$+++ 48365 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So in the Eleventh Circuit they have determined that. But again, we submit under that Russello presumption or even the statute itself, Congress enumerated those four property crimes, primarily property crimes.
05-9264 +++$+++ 48366 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Doesn't that seem like a fine line? I mean, if you're sitting around with your coconspirator planning it you can be covered under this provision, planning a burglary. But if you actually get out there with the burglary tools, you put the ladder against the door and you start up the ladder, that somehow involves less of a potential risk of physical injury?
05-9264 +++$+++ 48367 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They both present very little potential risk. They don't even really -- under a serious potential risk, they don't present that. A conspiracy shouldn't either. A conspiracy and attempt are not different things because a conspiracy doesn't Official qualify --
05-9264 +++$+++ 48368 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You think the Eleventh Circuit is wrong?
05-9264 +++$+++ 48369 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe the Eleventh Circuit is wrong with conspiracy as well.
05-9264 +++$+++ 48370 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If we don't know and if I can't get too far with the language and I frankly could sit in my office looking at the computer screen I think for hours and I wouldn't be closer to knowing whether there is or is not a lot of injury that accompanies attempted burglary, but that is something that is possible to know. All we have to do, as I said before, is count and there are a lot of people who can do that. In fact, there are people who at least have a mandate to do it and that is the sentencing commission. So they have the tools. They have the ability. And so in the absence on a question like this of my being able to get anywhere by cogitating about the language and in a borderline case where it isn't obvious, why don't we as a Court simply follow a reasonable interpretation of what the sentencing commission did in the absence of better information from some other place?
05-9264 +++$+++ 48371 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the sentencing commission when they were interpreting the career offender statute, or guidelines, they were looking at a Official guideline that is worded different than the --
05-9264 +++$+++ 48372 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They're trying to find out the same answer to the same kind of question: How many of these attempted burglaries, how many burglaries, how many other crimes are accompanied by an individual being hurt? And as I say, I cannot imagine how to answer that question in a borderline case without trying to find the numbers, which I don't have here, and therefore since I don't have them, why don't I look to the best, second best alternative, which is at least they could get them, and I hope they did get them before coming to the conclusion they did.
05-9264 +++$+++ 48373 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they came to that conclusion dealing with whether a career offender provision should include attempted burglary not under the armed career criminal statute and they specifically recognized that. Moreover, when they dealt with whether they wanted to include attempted burglary, they were dealing with career offender, which has, although it increases the guideline range a person can be sentenced to, it certainly doesn't increase the statutory maximum in zero to 10 year offense to a 15 years to life offense. So for those reasons, even if the sentencing commission feels that the career offender statute or Official guideline should include attempted burglary, that doesn't mean this Court should use that for the armed career criminal statute. Moreover, the career offender statute says it's only a burglary of a dwelling, although the armed career criminal statute says a burglary qualifies if it's a dwelling or a structure.
05-9264 +++$+++ 48374 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Crawford, we've held that the named crimes have to be considered generically according to their elements, right? Burglary, arson. Have we ever held that the residual category or "otherwise involves conduct that presents a serious potential risk of physical injury," that that has to be decided generically? I mean, if we could apply that residual category, not generically but according to the crime that was actually tried and of which the defendant has been convicted, such as laying a ladder up against the house, that particular sort of burglary, it seems to me it would be a much easier, much easier case, wouldn't it? We'd be able to tell whether there was a serious risk of physical injury. Is there any obstacle to doing that?
05-9264 +++$+++ 48375 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Taylor and Shepard both talk about that predicate offenses under 924(e) should be looked at in a -- using a categorical approach, and Official the Court has talked about that being an approach looking to the elements of the offense.
05-9264 +++$+++ 48376 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was it referring to the residual category?
05-9264 +++$+++ 48377 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It didn't specifically refer to the residual category. But even in Shepard --
05-9264 +++$+++ 48378 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Maybe it's not too late to save ourselves from sending out legions of law professors to do studies.
05-9264 +++$+++ 48379 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the Court were to step back and say that the "otherwise" clause should be interpreted in a noncategorical manner and we're going to -- the Court decides it's a factual-based approach, in Mr. James' case there are no facts, so it may not make any difference for him because there's no facts to indicate what kind of burglary really occurred here.
05-9264 +++$+++ 48380 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You mean no facts in the indictment or charging documents?
05-9264 +++$+++ 48381 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
05-9264 +++$+++ 48382 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But there is in the presentence report?
05-9264 +++$+++ 48383 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct. There were facts that were presented in the presentence report that came from police reports.
05-9264 +++$+++ 48384 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You don't have any Official doubt that, at least with respect to two of the other named crimes, attempts would present a serious potential risk? In other words, attempted arson or attempted use of explosives? You concede those would be covered, don't you?
05-9264 +++$+++ 48385 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Actually, no. Those crimes, attempted crimes, also should not come in unless there's something about an attempted arson statute that has as an element or something that presents a serious potential risk of physical injury to another, which at least in Florida that's not the case.
05-9264 +++$+++ 48386 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Don't you think attempted use of explosives is at least as dangerous as extortion? I mean as far as the risk of physical injury is concerned, I would think attempted use of explosives is much more dangerous to physical health than extortion.
05-9264 +++$+++ 48387 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Getting back to your question, maybe this answers part of it: Although the Court -- you asked, Justice Scalia, you asked a question about why can't we make this basically maybe a fact-based inquiry. And if you were to do so, the whole categorical approach that we're dealing with in all the other sections would almost become irrelevant because if something doesn't apply categorically, then we'll go to a fact-based inquiry and that kind of defeats the whole Official purpose of the categorical approach.
05-9264 +++$+++ 48388 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Crawford, does the record show that the facts in the PSR came from police reports rather than from a plea colloquy or someplace in the court records?
05-9264 +++$+++ 48389 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The plea colloquy was not ever presented or produced, and it does show that they came from police reports.
05-9264 +++$+++ 48390 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where is that in the record?
05-9264 +++$+++ 48391 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that is stated in the PSR regarding the facts that they alleged under the attempted burglary, which again were objected to. Specifically, the facts weren't necessarily objected to, but the use of the attempted burglary was objected to, and both the district court and the Eleventh Circuit took that as being an objection to using anything regarding the attempted burglary.
05-9264 +++$+++ 48392 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Crawford, may I ask you a question about the relationship between generic burglary and what Florida takes as sufficient to show an attempt? And what I'm getting at is the issue that at least was alluded to in the Jones case. Do you understand Florida law on attempted burglary to be as follows: that there must be an overt act taken toward entering either a dwelling or a Official structure, as distinct from an overt act taken to get within the curtilage?
05-9264 +++$+++ 48393 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The evidence -- I see my time is up. Little me briefly answer this question. Or -- I want to remain, or let some remain for my rebuttal. Very quickly, the overt act has to refer to the attempting to enter the dwelling. And so --
05-9264 +++$+++ 48394 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So there's no such thing as attempted entry of the curtilage as an attempt offense under burglary under Florida law.
05-9264 +++$+++ 48395 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under Florida law attempting to enter the curtilage is an attempted burglary; it is the same thing. Dwelling is defined as the building or the curtilage.
05-9264 +++$+++ 48396 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay, so when you say dwelling you mean dwelling as defined to include curtilage.
05-9264 +++$+++ 48397 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
05-9264 +++$+++ 48398 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay.
05-9264 +++$+++ 48399 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
05-9264 +++$+++ 48400 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Crawford. Mr. Marcus?
05-9264 +++$+++ 48402 +++$+++ FALSE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court. Petitioner's conviction for attempted burglary of a dwelling under Florida law is a violent felony under the Armed Career Criminal Act because like the crime of burglary Petitioner's crime categorically involves conduct that presents a serious potential risk of physical injury to another.
05-9264 +++$+++ 48403 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Marcus, do you agree with your brother's answer to my last question that there would be an attempt -- could be an attempt under Florida law simply to take an overt -- to commit an overt act toward entering the curtilage as distinct from entering a physical dwelling or a physical structure?
05-9264 +++$+++ 48404 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, while I would disagree with that, but while there are -- with your characterization. But there are no -- the number of reported cases involving an attempted burglary that involved an attempt to get on to the curtilage, if -- I think -- based on --
05-9264 +++$+++ 48405 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ We don't know basically what Florida law is? I mean, is that the best answer?
05-9264 +++$+++ 48406 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I don't, I don't think you could conclude, they have -- there is no decision telling you whether that would suffice. But we're not Official taking the position that it could not involve an attempted entry into the curtilage.
05-9264 +++$+++ 48407 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So that literally, I take it then if someone did have a fence around the house, and I, I -- I walked from the sidewalk onto the lawn toward the fence, with the intent of getting over the fence, that would qualify then, as you understand it, as an attempted burglary under Florida law?
05-9264 +++$+++ 48408 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes -- it could. It could --
05-9264 +++$+++ 48409 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would that be true if I simply wanted to get into the -- if my intent was to get on the other side of the fence but not into the dwelling? For example, you know, I wanted to steal the apples on the tree?
05-9264 +++$+++ 48410 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think --
05-9264 +++$+++ 48411 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would that qualify as attempted burglary?
05-9264 +++$+++ 48412 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it could. I think -- but I think you --
05-9264 +++$+++ 48413 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Doesn't that give you a pretty tough row to hoe, in saying that there is a sufficient potential risk of the sort of harm that qualifies under the act?
05-9264 +++$+++ 48414 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so, Your Honor. I mean Florida, in the State versus Hamilton case, we Official discussed in our brief, Florida has defined curtilage narrowly, strictly construed the word curtilage narrowly, to limit that concept to an enclosed area that immediately surrounds the dwelling. And the case discusses a couple of cases from various Florida courts of appeals where the courts construed the concept of curtilage and held that in one case it was marijuana that was quite a distance away from the, from a dwelling house, in another case a whiskey still that was a distance about 50 yards away from the dwelling house, that those were too far out to be considered part of the curtilage, part of that area that immediately surrounds the dwelling that's associated with the intimate activities of the dwelling. So Florida -- and Florida -- and I think the Court should take the Florida Supreme Court at its word when it said it's going to strictly construe that concept, and when it said it's not going to construe it to produce absurd, harsh or unreasonable results, keeping in mind how serious the offense of burglary is. So I think the -- so the first step, I think, if you don't -- if you don't believe that the way Florida defines burglary is generic in the way Congress had in mind, I don't think you could conclude that it presents a categorically different set of risks such that it Official would even fall outside the otherwise clause.
05-9264 +++$+++ 48415 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There are a number of Florida cases that involve open carports. How would you apply it there? Somebody, if you had a carport that's not fenced off at all, just 20 feet let's say from the street, somebody walks into the carport and steals a garden rake?
05-9264 +++$+++ 48416 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think under the current, I think under the current statute, it has been amended since, since 1993 and '94, and -- which is relevant, the statute is relevant to this case. I think now carports are considered part of the dwelling itself, the structure itself but under -- but if it -- but under the Florida's concept of curtilage if the area was not enclosed, it was not enclosed by a fence or other structure it would not be considered part of the curtilage. And in fact, the State versus Hamilton case, it cited a case that cast a doubt on a prior case that had found a burglary that took place on a driveway, and noted that the court in that case hadn't determined whether the area, whether the driveway was enclosed. So it does -- the statute does -- the concept does require an enclosure and the area immediately surrounding the dwelling and I think it is very difficult to conclude that that, that defined in Official that way, in that limited way, that someone who's intending to get on to a residence into the area either in or right around the dwelling, that that person is not sort of categorically dangerous kind of person that Congress had in mind when it set out burglary as one of the paradigmatic offenses in the statute.
05-9264 +++$+++ 48417 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So in an ordinary city street in Miami walking along the street, there are a lot of houses, and there's a little bit of lawn or bushes in front, and there's not a fence, because there isn't, or there aren't fences in many city blocks, a person goes up to the house and starts to monkey around with the window to raise it or whatever, that's attempted burglary, not burglary, in Florida?
05-9264 +++$+++ 48418 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- yes. That is my understanding. If it was not enclosed.
05-9264 +++$+++ 48419 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. So then I doubt -- then again I'm left at sea. I don't know how often that happens or is dangerous. So if I think that this is really a statistical question, and I think maybe it is -- and the Government is in the best position, they have all the statistics, they have whole bureaus over there. So what about a presumption against the Government? In a case where it seems to be a close case and it is a statistical question, and the Government doesn't have Official any statistics?
05-9264 +++$+++ 48420 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think -- I don't think when Congress enacted this law that it expected the courts would have statistics available to --
05-9264 +++$+++ 48421 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How are you supposed to decide it if there's a question as there is this instance I think? I just don't know how dangerous attempted burglaries are. I mean, maybe I'm not supposed to admit there are a lot of things I don't know but there are. And this is one of them.
05-9264 +++$+++ 48422 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there are several things you can do. First you can look at the text of the statute.
05-9264 +++$+++ 48423 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I read the text several times.
05-9264 +++$+++ 48424 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Congress provided some guidance by setting out four examples of crimes that do present the type of risk they had in mind.
05-9264 +++$+++ 48425 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Correct. And here I think it might be less than burglary. And extortion, though one thinks of somebody writing a poison pen letter or something and revealing a secret from the past -- many such crimes are threats of violence. I mean, and that just read through the statutes, and that's what they are aiming at. So I would say extortion is something that Official quite often could involve violence. But again that's cogitating. So I get to attempted burglary. I don't know. Now what do I do?
05-9264 +++$+++ 48426 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think -- I think you have to consider what Congress's purpose -- in enacting the statute, Congress directed your attention to the serious potential risk that an offense presents. I think that just -- and criminal law requires courts and juries all the time to take into account and to use their common sense and experience to judge the risks that are presented by a particular crime. I mean, the very concept of recklessness itself refers to a substantial disregard of --
05-9264 +++$+++ 48427 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Marcus, it is a lot easier to do that with respect to the facts and circumstances of a particular crime than it is to do it generically -- you know -- picking out attempted burglary. It is very hard to do that. Why shouldn't we read this, this residual category to refer to the facts and circumstances of the particular crime of which the defendant has been convicted? The language enables you to do that. The term violent felony means any crime punishable by imprisonment for a term exceeding one year that involves conduct that presents a serious potential risk of injury, physical injury to another. Official Why can't we not, not interpret that to mean generic crime, but rather the particular crime of which this defendant stands convicted?
05-9264 +++$+++ 48428 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, all that -- this law has been interpreted for many years. No courts of appeals have, have construed that it way. They have construed it to require a categorical approach. And then if you look at the structure of the provision, Congress clearly with respect to the listed offenses had in mind a sort of a categorical approach that, while these courts had, sort of looking at one of these crimes on an ex post basis, it might not present any risk, the idea that these crimes categorically present a potential -- a serious potential risk of physical injury.
05-9264 +++$+++ 48429 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And would you agree, Mr. Marcus, that this Court's decision in Shepard excludes that interpretation? If you look at the particular crime?
05-9264 +++$+++ 48430 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the Court referred both in Taylor and Shepard to the -- to Congress's approach. And under the statute, that sort of that it wants you to take a categorical approach to crimes that are inherently presented --
05-9264 +++$+++ 48431 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Didn't we -- didn't we also go further and say one reason to construe it that way is Official we don't want courts to have to be, in effect, having sort of subsidiary collateral trials after the fact, to establish -- you know -- the facts of old trials. There was an administrability analysis involved. I think there was. Yeah, I wrote Shepard. And I think that's what --
05-9264 +++$+++ 48432 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was that as well. And I don't think it is beyond the ability of courts to take a crime, look at the elements of the crime, figure out what conduct is necessary to satisfy those elements and then use common sense and experience to make a judgment about how that -- the risks that are posed by that conduct. Looking at the situation --
05-9264 +++$+++ 48433 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Marcus, isn't there this -- this linguistic problem with the statute anyway? Because this language if it said -- that sometimes presents a serious risk, then the answer would be obvious. If otherwise it said that characteristically presents a serious risk, then it might be closer. And which do you think is the more normal reading of it? I think either is -- certainly fits the language.
05-9264 +++$+++ 48434 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And either --
05-9264 +++$+++ 48435 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Either means sometimes presents a potential risk of physical injury, then Official obviously they're all covered. Or if it says characteristically presents the risk, potential risk, then do you have to decide whether that, it is a characteristic of potential burglary that it -- that it does present this risk or that just once in a while it does.
05-9264 +++$+++ 48436 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I think it's not -- no I think it has to, characteristically taken at a general level, the conduct required to commit a burglary, of getting --
05-9264 +++$+++ 48437 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If that were true, and if as your opponent said, that in actual burglaries there's only three percent of them actually involve risk to -- of physical injury to another, then attempted burglary must necessarily be somewhat less than three percent. I would think that. Would that satisfy the characteristic requirement?
05-9264 +++$+++ 48438 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it would. First of all, Congress --
05-9264 +++$+++ 48439 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is it two or three percent?
05-9264 +++$+++ 48440 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The statistics he is referring to came out before Congress amended the statute in 1986 and expanded it and specifically enumerated burglary as one of the crimes that it thought paradigmatically Official presented a serious potential risk of injury.
05-9264 +++$+++ 48441 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I don't think that's perfectly clear. The "otherwise" language does suggest that you are right. But if the statute instead of saying "otherwise" had said, "or involves other conduct that presents a serious risk," which I think is a permissible reading, perhaps not the best reading, but if it said that, then it is not -- you are not taking as a given the fact that the others satisfy the violent requirement but rather that they are eligible, whether or not they do.
05-9264 +++$+++ 48442 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, this Court interpreted the statute that way in Taylor -- I mean, I'm sorry, on page -- on page 597 of Taylor. I mean this Court said that Congress's choice of language indicates that Congress thought ordinary burglaries as well as burglaries involving some aspect making them especially dangerous, presented a sufficiently serious potential risk to count toward enhancement. I mean, that's right in the Taylor decision, and I think that has got to be the correct reading of the statute. Because why did Congress identify -- they created two categories of violent felonies. The first is with respect to an element of the offense that goes to targeting a person for physical harm. The second category are those crimes Official that don't necessarily target a person for physical harm but necessarily present, inherently present a risk of physical injury to a person.
05-9264 +++$+++ 48443 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That would be fine if burglary were the only thing that Congress said there, but it also said extortion. And I think it absolutely fanciful to believe that extortion characteristically -- characteristically -- involves a risk of physical harm. I just don't think it does.
05-9264 +++$+++ 48444 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Congress identified it as a violent felony presumably because it believed it had -- it had the criteria.
05-9264 +++$+++ 48445 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but is the criterion "characteristically," or is the criterion whatever minimal risk of harm there is in extortion?
05-9264 +++$+++ 48446 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that it carries the potential risk, because when any -- when someone commits extortion there might be a tendency to -- if there --
05-9264 +++$+++ 48447 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is the level of potential risk the level that exists in extortion? Right? That's what the otherwise refers you to.
05-9264 +++$+++ 48448 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. To the level of risk that's presented by any of the preceding examples. That's correct. Official
05-9264 +++$+++ 48449 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Maybe, the same point, isn't it reasonable to assume that the risk of harm in these attempt cases is characteristically going to be pretty close to zero? I mean, they're not in the house. They're just on the ladder, in the kind of examples we've been talking about.
05-9264 +++$+++ 48450 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't agree, Your Honor. The statute directs you to consider the serious potential risk.
05-9264 +++$+++ 48451 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ One way to do that is to say the potential risk is the potential for the risk of the harm that comes from the commission of the crime itself. I mean, there is -- I don't want to overdo it, but the risk of harm to others from the -- from the step on the ladder is zero, if you consider simply the act itself of putting the ladder up against the building and taking the step. It's only because that creates the potential for getting inside where the risk, in fact, is measurable. I mean, we know there are cases in which victims get shot when they appear in the course of burglaries, but the risk associated with the mere attempt in isolation is going to be minuscule.
05-9264 +++$+++ 48452 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ When you're assessing the risk presented by particular conduct, I think you have to Official take into account the intent that goes along with that conduct.
05-9264 +++$+++ 48453 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Oh, I agree with you. But the act that involved -- the act that constitutes the -- that qualifies for the attempt doesn't involve it. I'm trying to help you here. I mean --
05-9264 +++$+++ 48454 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Don't believe it for a minute. (Laughter.)
05-9264 +++$+++ 48455 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why do you look at the risk of burglary and then view attempt as a sort of lesser included offense? I mean, attempts themselves have their own independent risk of physical injury. Obviously, if you've got a ladder up against the side of my house and you're halfway up and I come home, there's a risk of injury there, even though there's no -- regardless of whether the person gets into the house or not. And I think perhaps there's even a greater risk of potential -- greater potential risk of injury with respect to attempts because they don't succeed. Why don't they succeed? Because something interrupts them. And what interrupts them, it may well be the home owner. So I don't know that you have to look to sort of attempt as a lesser risk than the burglary itself. Official
05-9264 +++$+++ 48456 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Congress doesn't look to attempt as a lesser offense. We pointed out in our brief that the vast majority of provisions in the U.S. Criminal Code punish the attempt the same as for the completed offense. And if you think about the purpose of the ACCA, and the ACCA is not focused on the results of the prior crimes of the armed felon committed, it is focused on the risk, the propensity that somebody has, has demonstrated by engaging in at least three prior violent felonies or serious drug offenses to engage in behavior that is dangerous, that presents dangers to public safety. So if you think about the attempt and the whole concept of attempt, I mean, someone who has committed attempt by definition has intended to commit the offense and as you said, Mr. Chief Justice, has only failed by reason of an unforeseen event. Why would Congress in this statute want to differentiate between the frustrated burglar whose only -- who hasn't succeeded only by virtue of an unforeseen event, and the successful burglar? I think the serious potential risk language allows you to sort of look at the attempt as you said, Mr. Chief Justice, as virtually the equivalent --
05-9264 +++$+++ 48457 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I would suppose the unsuccessful burglar poses a greater risk of physical Official injury than the successful burglar.
05-9264 +++$+++ 48458 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Arguably. I mean, if you look at the case law, the vast majority of cases, the furthest out, the furthest case the Petitioner can find, the most extreme case that he's found involves someone who's in the backyard of a dwelling reconnoitering or casing the dwelling, and that was the most extreme example. So even with attempts, you find in all the case law, you do find the physical proximity to the premises. And one of the main reasons it wouldn't succeed is because somebody, there's the presence of someone who frustrates the entry. So that even on that level, at that level, it is hard to say that there's any lower risk presented by the attempt.
05-9264 +++$+++ 48459 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, what do you say about your brother's argument that the statistics show there's a 3 percent chance, I think it was a 3 percent chance of violence in the course of committing the burglary? I take it there isn't any statistic available, if we want to take Justice Breyer's approach, about the potential -- the actual proven potential for violence at the near attempt stage.
05-9264 +++$+++ 48460 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But again, I think -- I don't think you need to have those statistics. Official
05-9264 +++$+++ 48461 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, I don't think you do either, but I mean, I think your whole argument has got to rest really on the potential for harm in the commission of the offense.
05-9264 +++$+++ 48462 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's the very reason that attempts are prohibited, because they present the serious potential to produce the harms that the completed offense presents.
05-9264 +++$+++ 48463 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do I correctly understand, we don't need the statistics, I guess they're not available, but in your view if we did have statistics and they showed that in 1/10 of 1 percent of the category of crimes across the nation, there was this risk, that would be enough?
05-9264 +++$+++ 48464 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For attempts?
05-9264 +++$+++ 48465 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. Well, for attempts or complete -- I mean, just say the standard of what presents a serious potential risk of physical injury, if 1/10 of 1 percent of the crimes -- whatever the category, did present such a risk, that would be sufficient under your view.
05-9264 +++$+++ 48466 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I think Congress wanted to treat a frustrated burglar the same --
05-9264 +++$+++ 48467 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The answer is yes?
05-9264 +++$+++ 48468 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. They've shown the same Official propensity to engage in the conduct that Congress was concerned about that falls at the heart of the statute.
05-9264 +++$+++ 48469 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So then it's a really easy case, because really there is some risk in every case. There's some risk that somebody will, you know, bump into somebody or give them a punch in the nose at least.
05-9264 +++$+++ 48470 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that's not what we're asking the Court here. We're asking the Court to look at the elements of the offense, and to look at the elements of the offense to see whether that creates a situation in which violence is likely to arise. Here you're talking about, this is attempted burglary of a dwelling where you have --
05-9264 +++$+++ 48471 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but none of the elements of the offense satisfy the risk of physical injury in the burglary case. You can have unarmed burglars.
05-9264 +++$+++ 48472 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But in considering the conduct involved in the offense, the attempting to get, the attempt to enter a dwelling, enter someone's home, someone's residence, that creates a dynamic situation in which violence could occur --
05-9264 +++$+++ 48473 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right. And as I understand your view --
05-9264 +++$+++ 48474 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That doesn't -- Official
05-9264 +++$+++ 48475 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If in 1/10 of 1 percent of the cases, there is in fact a physical confrontation, that's enough, which makes it a pretty easy case.
05-9264 +++$+++ 48476 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. But again, first of all, I don't think the statistics would show that. I don't think logically they would show that in light of the numbers that are shown for completed burglary. But again, I don't see -- with respect to the offenses that are covered that are at the core of the statute, I don't see why you would distinguish between the person who tried to get in but was frustrated by some unforeseen event. They have created the same set of risks, they've triggered the same set of risks that the successful burglar has.
05-9264 +++$+++ 48477 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So in other words, you're saying that in measuring the risk, you should consider not just what this particular defendant succeeded in accomplishing, but what the defendant was attempting to accomplish?
05-9264 +++$+++ 48478 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. I think the statute permits you to do that with its plain language of focusing on the potential risk of the conduct, the serious potential risk. And that -- and also in looking at the rationale for attempts and why we punish attempts, in terms of the person is, you get punished Official for attempts because you sufficiently manifested your dangerousness in the same way as someone who's completed the offense. Again, the State codes, the vast majority of State codes demonstrate the riskiness of attempt behavior. They predicate felony murder convictions on attempted burglary as well as burglary. And as I said --
05-9264 +++$+++ 48479 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What about attempted assault? I bet nobody has ever been hurt in an attempted assault.
05-9264 +++$+++ 48480 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think, my understanding would be that would be covered under the first subsection for the use -- attempted use or threat, threatened use of force.
05-9264 +++$+++ 48481 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ All right. But it wouldn't fit within your -- I mean, I just wonder what happens when you try to get away from numbers. Maybe there are a certain number of people injured during mail fraud or embezzlement, you know, some people get annoyed during an embezzlement and start hitting each other. I can't get away from the numbers.
05-9264 +++$+++ 48482 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But there in those type offenses, if you look at the elements of the offense, there's no nexus between those elements and the -- a reaction that someone might have just to being Official prosecuted. I mean, that's not --
05-9264 +++$+++ 48483 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So what's the test? The test is either a high statistical number of injuries or if not, a nexus to a crime that does have a high statistical number of injuries? I like the word nexus because whenever I see it in an opinion, I have no idea what it means. (Laughter.)
05-9264 +++$+++ 48484 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in this statute you're talking about career criminals, people who have committed a number of crimes and have recently just been convicted of being an armed felon. And I think that's -- when you look at -- that can be your starting point, and take -- so this case doesn't present questions about other cases that might present -- arguably present, or present a serious risk of physical injury, but don't necessarily seem to fit with the crimes that are listed and what the crimes that Congress had in mind. I think that's another case. This case falls at the core of the statute; we're talking about someone who intends to commit the core crime Congress was talking about.
05-9264 +++$+++ 48485 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Marcus, assuming we accept your view about the way the statute should be read, I take it you agree that because of the curtilage Official possibility under Florida law, that Florida law, that burglary in Florida is not a generic burglary?
05-9264 +++$+++ 48486 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We haven't argued that it is generic burglary. That's correct.
05-9264 +++$+++ 48487 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I guess my -- so that leads me to this question, because -- I mean, I, my understanding is it's not a generic burglary. Therefore, even on your reading of the statute, an attempted burglary in Florida doesn't necessarily satisfy the prong, and it's got to come in under the residuary clause, of course. And because there is a possibility that the only burglary charged was a burglary of the curtilage, we've got to -- don't we have to send the thing back to find out either from court records whether something more than a mere penetration of curtilage was involved here? And if so, whether -- whether that penetration carried with it the potential for harm?
05-9264 +++$+++ 48488 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, no. That's why you have the otherwise clause, to cover offenses just as this Court said in Taylor, that they weren't --
05-9264 +++$+++ 48489 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, but the only thing we know under the otherwise clause, is that this was an attempt at burglary. If the burglary were a generic burglary, your analysis, if we accept it, would be the Official end of the case.
05-9264 +++$+++ 48490 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-9264 +++$+++ 48491 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But this is not a generic burglary. Therefore, we have to assume that the attempt in this case could have been nothing more than stepping across the grass, moving toward the fence, to lean over to take the apple. And therefore, don't we have to go to court records? In other words, don't we have to take advantage of the qualification in Shepard and Taylor before this case can finally be decided?
05-9264 +++$+++ 48492 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I mean, you've identified an additional step that the Court has to consider in deciding the question in this case, but that step doesn't necessarily require you to go to court records. I mean, it's our position that even including the curtilage, the area, enclosed area immediately surrounding the dwelling presents a serious potential risk of physical injury
05-9264 +++$+++ 48493 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, could you tell us what your position is if we choose to use the noncategorical or the modified categorical approach? Is there a nexus between what's in the presentence report and some other charging documents, or is it just in the presentencing report?
05-9264 +++$+++ 48494 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. The charging documents are not part of the record in this case. The record Official right now is solely comprised of the presentence report.
05-9264 +++$+++ 48495 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And we don't have any transcript of colloquies with the court or anything like that?
05-9264 +++$+++ 48496 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
05-9264 +++$+++ 48497 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what about -- do you think the facts in the presentence report are admitted by your opponent or not?
05-9264 +++$+++ 48498 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He didn't object to the facts in the presentence report. He also did not object --
05-9264 +++$+++ 48499 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Therefore, can we consider them?
05-9264 +++$+++ 48500 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-9264 +++$+++ 48501 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So therefore, then the question is whether throwing the hammer through the window is sufficient; is that right?
05-9264 +++$+++ 48502 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that would resolve Justice Souter's question about whether it would involve the curtilage at all, which would show that there was an attempted physical entry into the residence.
05-9264 +++$+++ 48503 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Would you think that the hammer through the window is a decisive fact if we do look at the individual case?
05-9264 +++$+++ 48504 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we don't -- yes, certainly we think that any attempted burglary of a Official dwelling presents a serious potential risk categorically. But if you didn't agree with that, then, and you thought that only a subset of attempted burglaries of dwellings would present serious potential risk, then clearly this offense here that would certainly satisfy any conception of that.
05-9264 +++$+++ 48505 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because the hammer is thrown through the window, is that -- I just want to be sure I understand your view of the importance of the hammer.
05-9264 +++$+++ 48506 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because there was an attempted physical entry into the residence. The person was right on the threshold of the dwelling.
05-9264 +++$+++ 48507 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm still a little unclear as to how much significance we pay to that hammer.
05-9264 +++$+++ 48508 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, we don't think you have to attribute any particular significance to that. I mean, it's our position that categorically this crime is covered. And again, the case law shows that there's -- that with attempted burglary cases, there is a physical proximity to the dwelling, but even if there was --
05-9264 +++$+++ 48509 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even though there's some cases in this large category that clearly wouldn't involve any risk to anybody. Say the enterprising but careful burglar who keeps watch for several days to see Official when no one is in the house, that that's when he chooses to make his entry.
05-9264 +++$+++ 48510 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. You can always posit, under the categorical risk, you could always posit a specific nonthreatening hypothetical that equally applies to burglary as it does to attempted burglary. And so while you could posit a hypothetical where someone trying to get onto the curtilage might seem like it wouldn't present any injuries, if you think categorically about people who are trying to surmount, get over fences and walls to commit offenses in the dwelling or immediately around the dwelling, they're presenting the same sort of risk, and therefore the Court can conclude that it also -- within the otherwise clause, the burglary under Florida law is not so different from the kind of burglary that Congress had in mind that it would just drop out of the picture entirely. Armed felons who have the propensity to go into the curtilage of someone's home, to either go in the house or right around the house, present the very kind of risk that Congress was concerned about.
05-9264 +++$+++ 48511 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you agree that this presentence report cannot be consulted under the reasoning of Shepard, we need more?
05-9264 +++$+++ 48512 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, under Shepard, the Official defendant in Shepard had objected to the use of police reports. My understanding is he also submitted an affidavit saying he didn't acknowledge the truth of anything in the police report. So I think this case is distinguishable in that there was no objection to the facts in the PSR and there was no objection specifically to using the police report as the source for those facts.
05-9264 +++$+++ 48513 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You don't think the PSR has some kind of significance that the police report did not?
05-9264 +++$+++ 48514 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It wouldn't, no. I don't think it would. But -- no.
05-9264 +++$+++ 48515 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is the following sort of summary fair: Because Florida is not a generic burglary State, the mere conviction of burglary would not satisfy the burglary prong in subsection 2? But on your argument, even though Florida is not a generic burglary State, an attempted burglary will always satisfy the "otherwise" prong; is that correct?
05-9264 +++$+++ 48516 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Argument --
05-9264 +++$+++ 48517 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that a fair statement of your argument?
05-9264 +++$+++ 48518 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. If the completed offense is a violent felony, the attempt to commit that offense Official is also a violent felony. That's a fair statement of our position.
05-9264 +++$+++ 48519 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Marcus.
05-9264 +++$+++ 48520 +++$+++ TRUE +++$+++ MR. MARCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
05-9264 +++$+++ 48521 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Crawford, you have four minutes.
05-9264 +++$+++ 48523 +++$+++ FALSE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It seems to me that Respondent's position is taking the "otherwise" clause to trump the entire rest of the statute. Any crime, any felony, has a potential of violence. In fact, in footnote 9 of the reply brief we cited the Golden opinion from the Seventh Circuit and in that particular opinion the court found that serious potential risk for someone who failed to report to a jail because they speculate, you know, law enforcement might have to go and arrest them and there could be violence in that situation. Well, that happens in all crimes, the potential for law enforcement to arrest somebody. There's always a potential for violence. So the Government's position --
05-9264 +++$+++ 48524 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's different when you're dealing with an escapee or someone who has Official visitation right and then doesn't report back and qualifies as a escaped felon from prison. That's quite a bit different from an arrest in a normal situation.
05-9264 +++$+++ 48525 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But there's still the same potential for violence in either one of those.
05-9264 +++$+++ 48526 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. There's a greater -- I had this case in the D.C. Circuit. There's a greater degree of potential when you're dealing with someone who's escaped from prison than with someone else who's being arrested. Of course there's always the potential, but the judgment was that there's a greater degree of potential when you're trying to apprehend someone who's escaped.
05-9264 +++$+++ 48527 +++$+++ TRUE +++$+++ MR. CRAWFORD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For someone who's escaped. Golden wasn't dealing with that. Golden was dealing with someone who failed to report to a facility after being sentenced to do so. The same could be said for someone failing to report to a court for a hearing. A bench warrant is issued. The same type of risk would be inherent in that type of -- for that person as for someone who fails to report to a jail upon being sentenced. All of those potential crimes, basically that would leave open any potential felony to qualify under the "otherwise" prong. Congress obviously Official couldn't have intended that. Moreover, there's still an issue that was brought up in Shepard on the constitutional avoidance. How do we actually make these determinations and are these necessarily determinations that were found by the Florida court or by the Florida system for a Florida attempted burglary conviction? We submit it's not. And you're going beyond the mere fact of the prior conviction. You're looking at many other components, the risk of the conviction, which is not the same thing as the mere fact of the prior conviction. If there are no further questions --
05-9264 +++$+++ 48528 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Crawford. The case is submitted.
05-983 +++$+++ 48532 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument this morning in 05-983, Winkelman versus Parma City School District. Mr. Andre.
05-983 +++$+++ 48534 +++$+++ FALSE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: This case asks the Court to decide to what extent non-lawyer parents of a child with a disability may litigate an IDEA case pro se in Federal court. Under two distinct theories, the answer to that question should be without limitation. But I would like to focus today on petitioner's primary and first theory, which is that parents are real parties in interest in IDEA suits regardless of the claims being asserted. Under 28 USC 1654, a party has a right as a matter of Federal statutory law to litigate their own case. Accordingly, when a parent sues under IDEA, it is our position they are suing in their own right and are suing on their own case. This is particularly so because the right to sue provision that Congress enacted in IDEA uses the broad phrase "any party aggrieved" when it allows judicial review of an adverse administrative hearing officer's decision. The parties agree that it is the underlying administrative complaint or the due process complaint that frames both the claims that can be brought eventually in court, and also identifies who the parties are that can appear in court. Those complaint provisions in IDEA, and there are eight of them in all we cite in footnote seven of our reply brief; all eight of those provisions refer unambiguously to the parents' complaints. Congress did not describe this due process complaint that starts the whole dispute process as the child's complaint, the child's complaint by and through the parents, or the parents' complaint on behalf of the child. Accordingly, when a parent files that due process complaint, they are the real party in interest, and again, the provisions make no distinctions about the kinds of claims that can be brought. It shouldn't matter that when they get to Federal court that -- or there shouldn't be any limitation on who is the real party in interest in Federal court, or what claims may be asserted.
05-983 +++$+++ 48535 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If we say that the parents are the real party in interest and are entitled to sue in their own right, is that the end of the case, or do we reach the second -- a second question as to whether or not they can represent the children?
05-983 +++$+++ 48536 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think you would need a reach a second question, Justice Kennedy. It's our position that the remedies in an IDEA case are co-extensive and that the rights are inseparable. And so, this case was pleaded in such a way as to have both the parents and the child be before the court. But if this court were to agree with us on our first and primary theory, we don't believe it would be necessary to have the child listed as a plaintiff to a future suit, and we imagine that on remand the child might be dismissed from the suit. It's our position that he's not an indispensable party.
05-983 +++$+++ 48537 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What can the parents get out of this case other than reimbursement for the tuition they've paid to private schools and procedural rights that are given them by the Act? What can they get out of this case other than those two things that do not depend upon their status as representatives of the child?
05-983 +++$+++ 48538 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, clearly the relief primarily sought by my clients -- in fact, if you look just at the relief section of the complaint that my clients filed, which is in joint appendix, page 19, the only relief they actually seek is reimbursement. There's a number of ways --
05-983 +++$+++ 48539 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What other possible relief could they seek other than giving them a procedural right accorded by the Act? What other possible relief could they seek that they would not be seeking as guardians of the child?
05-983 +++$+++ 48540 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of course, it's our position that parents are never acting as guardians, at least in the legal sense, or lay representatives of a child in a court action. And so, therefore, a parent should be able to assert any one of the -- a claim asserting violation of any one of the many rights conferred in the Act.
05-983 +++$+++ 48541 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It depends upon their being a party aggrieved. That is defined in Black's Law Dictionary as a party entitled to a remedy.
05-983 +++$+++ 48542 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
05-983 +++$+++ 48543 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now if the only remedies the parents are entitled to in their own right are reimbursement, which is at issue here, and procedural guarantees, why would not their ability to sue or to appear pro se be limited to those two categories? You'd win this case, but I'm talking about how broad is the rule that you're urging us to adopt?
05-983 +++$+++ 48544 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in -- and this could be a very easy case if the Court wants to look just at the specific procedural violations that my clients assert and also the reimbursement claim that they assert. But it's of course our position also that the full bundle of rights can be asserted by parents. I think maybe the best way to answer your question, Justice Scalia, is that -- to direct you back to the definition of a free appropriate public education itself, and that's in 1401(9) and (29) in the statute. That definition provides that a free appropriate public education is one that's provided at no cost to parents. So if a school district provides a free and inappropriate public education, then it's the parents' obligation -- or not obligation -- they have the choice of whether to supplement the inappropriate public education with additional services, or to replace the public education with one that provides an appropriate bundle of services. So I guess my point is that even in a case where the parents don't necessarily seeks reimbursement, they still are intended beneficiaries of the right to a free appropriate --
05-983 +++$+++ 48545 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The child is. The child is entitled to an appropriate public education and the parents are entitled to have it provided free. That's really the only interest they have on the table, it seems to me, separate and apart from their status as representatives or guardians of the child.
05-983 +++$+++ 48546 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We also believe that the parents have an interest in the education being appropriate for -- in addition to the reason I just explained, that they may have to supplement education, but parents are also the co-architects of the individualized educational program that is eventually -- that eventually defines the bundle of services that it provides the child. And they're integral to the --
05-983 +++$+++ 48547 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you say they're the co-architects. I mean, are you saying anything more than they are given the procedural right to participate in the hearing?
05-983 +++$+++ 48548 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think they're given -- I haven't counted them -- but I think they're given 10, 12 of the 15 procedural rights outlined in the statute. And this Court explained in Rowley, Congress placed every bit as much emphasis on parental involvement in the shaping of the individualized educational program --
05-983 +++$+++ 48549 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't there a bit of -- there's a leap from saying they have these various procedural rights and they're are a party aggrieved by the decision rendered after the hearing, that's a different question, isn't it?
05-983 +++$+++ 48550 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, typically a parent would file a due process complaint, challenging the bundle of services offered by the school district, and alleging a procedural violation. And so I think it would be a rare case where a parent would, by the time they get to Federal court, try to be a party aggrieved is something that they didn't exhaust -- that would render the exhaustion requirement.
05-983 +++$+++ 48551 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They are an aggrieved party for purposes of the administrative process. The question is whether that -- when that is done, whether they also constitute an aggrieved party. And one of the -- one of the points made by the other side is that there is an express provision for proceeding without counsel at the administrative level, and there's no provision for proceeding without counsel in court. So doesn't that suggest that the right to proceed pro se is limited to the administrative process?
05-983 +++$+++ 48552 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, not at all, Justice Ginsburg. Congress sensibly recognized that because the process proceedings are run on a State by State basis, certain unauthorized practice of law statutes or other laws require prohibiting counsel in administrative proceedings might come into play. So Congress had to make it express in section 1415(h)(1) that any party may appear in the administrative proceedings with or without counsel. In contrast, in Federal court, there's already 28 U.S.C. 1654, which has been on the books since 1789 as part of the Judiciary Act. That provision allows any party to litigate their own case. So it actually makes a lot of sense that Congress would have included the express right to proceed pro se --
05-983 +++$+++ 48553 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which just begs the question, doesn't it? I mean, you're assuming that the parents are a party to the case in Federal court.
05-983 +++$+++ 48554 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, again, it is our position that they are because they're parties aggrieved by the administrative proceedings, so long as they have exhausted their claims. And that this is confirmed in other provisions, for example, the attorneys' fees provision of the statute refers repeatedly to parents as a possible prevailing party.
05-983 +++$+++ 48555 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought it was the unanimous view of the circuits that parents, as a general matter, do not have the right to represent their children in Federal court, that the provision of the judicial code that you cited does not confer on parents, generally, the right to represent children.
05-983 +++$+++ 48556 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Mr. Chief Justice. But our primary theory in this case is not that parents are seeking to represent their children as lay advocates in court. Our primary theory is that a parent suing under the statute is suing in their own right. In fact, that's why my clients pleaded this case with -- as -- with themselves on the caption, and asserted claims that are their own, because they believed that those claims are their own, and they believed they should be able to litigate those claims under section 1654.
05-983 +++$+++ 48557 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You know, it's not an insignificant matter at issue here. Counsel, who are referred to as officers of the court, protect the court from frivolous suits, from suits that really have no basis. When we give that authority to appear in court and initiate a suit to the public at large, we make a lot more work for Federal district judges. Why should we interpret this statute to achieve that unusual result?
05-983 +++$+++ 48558 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'm not sure that the policy considerations would be relevant to the statutory construction question of whose rights are being asserted in a case like this. But certainly under our second theory, the public policy considerations would be appropriate. It is our position that those public policy concerns about pro se litigants burdening the court, burdening opposing counsel are dramatically outweighed by the fact that -- by the reality that two-thirds of the disabled children in the United States come from families that cannot afford counsel --
05-983 +++$+++ 48559 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The statute already allows the shifting of fees to a prevailing party. So presumably attorneys can be found to take the meritorious cases. And What we are probably dealing with are cases that can't attract attorneys, even though the attorneys know that if they win, they will get their fees.
05-983 +++$+++ 48560 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Two responses Mr. Chief Justice. First, in other regimes, where you have a fee-shifting statute, the cases are usually still brought by pro se litigants. Here because you are dealing with a minor child, really, it is an all or nothing proposition. Either bring the case and you have the potential to recover attorneys' fees, or the case doesn't get brought at all. And this is borne out by the statistics cited in our position and the amicus briefs from the Council of Parent Attorneys and Advocates, and the Autism Society of America.
05-983 +++$+++ 48561 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was their an argument at any point in this case that the claim was frivolous?
05-983 +++$+++ 48562 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, there was not. And then that brings me to my last point, which is, as a practical matter, there is a very limited private special ed bar and they cherry-pick only the best cases. But that doesn't mean that all the cases that are left are frivolous or meritless. There's a whole universe of cases out there, some of which may be quite strong, some of which may be on the borderline, and some which may be meritless. But Congress cannot have intended to create this important and robust substantive statutory guarantee to a free and appropriate public education, and guarantee all these procedural safeguards, including judicial review to enforce it, and then expect that that right would never be fulfilled because --
05-983 +++$+++ 48563 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, if they had that overriding intent, it would have been easy enough for them to make clear that this was an exception to the normal rule, that parents don't have the right to represent children in court. They did that with respect to the administrative proceeding, as Justice Ginsburg pointed out. They perhaps conspicuously did not do it with respect to the proceeding in court.
05-983 +++$+++ 48564 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, actually, if I could clarify one thing. If you look closely at section 1415(h)(1), it does not provide that a parent can represent their child in the administrative proceeding. It just says that any party may litigate that administrative proceeding.
05-983 +++$+++ 48565 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know, but 14 -- is it 1415(f)? Specifically says that parents have the right to participate in the due process hearing. I'm looking at 1415(f)(1)(A). In other words, parents have the right to participate in the due process hearing.
05-983 +++$+++ 48566 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But that's also -- our position is they have the right to participate in the due process hearing as parties, in fact as the kind of plaintiff side parties. And that is confirmed by the provisions that we cite in footnote seven of our reply brief that talk about the parents' complaint.
05-983 +++$+++ 48567 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It doesn't say they have the right to participate as parties. They have -- it says they have the right to -- for an impartial due process hearing. I would suppose if you're trying to figure out who is the party to that case, you would still think of it in terms of the child and not the parents.
05-983 +++$+++ 48568 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we thought that -- we believe that Congress thought of it as the parents because of all the statutory references to the parents' complaint. Of course, we don't take the absurd position that the child could not also be a party to those proceedings. But in any event, my point was simply that the express Lesesne argument that some courts relied on to suggest that Congress consciously decided not to allow parental lay representation, I mean, that argument simply doesn't have a strong foundation, because the provision on which that argument is based, which is 1415(h)(1), is ambiguous at best. And, in fact, could suggest just the opposite. I'd like to address a point that Respondents have relied on --
05-983 +++$+++ 48569 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Before you do that, how much of a practical benefit would it be for children with disabilities and their parents, if you are successful here, in light of the complexity of the IDEA and the fact that this is an area where some parents are going to have difficulty maintaining any kind of emotional detachment from the litigation? If parents can represent their -- can -- a non-lawyer parent can appear in court, isn't there a risk that in some instances where a lawyer could be found if the parent made an effort to do that, they're going to be lured into trying to provide the representation themselves?
05-983 +++$+++ 48570 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first of all, parents already have to get to know the statute and the applicable regulations when they bring these cases at the administrative level. By the time they get to court, they are intimately familiar with the facts and intimately familiar with the relevant law. The only thing that's different about the court action and the administrative proceeding is now you have the Federal Rules of Civil Procedure.
05-983 +++$+++ 48571 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ These disadvantaged parents that you are referring to who comprise the majority of parents, they're really up on section, you know, (h)(1) and all that stuff? I find that hard to believe. I mean, the people you're assertedly benefiting here are the people least likely to have familiarized themselves with the statute and the procedures.
05-983 +++$+++ 48572 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure we agree, with all due respect, Justice Scalia. But even if that's true, the nature of IDEA court action, I think, addresses some of the concern. These are not pure record review proceedings, like in merit systems protection board cases, or immigration cases. But they are quasi review proceedings. And so what we're advocating here is really access to the courts. Let the parents, whether they are brilliant writers or they're not so good at writing, let them at least have access to the courts, so that will then -- a capable district judge can look at the case and decide whether the school should have complied with the statutory mandates.
05-983 +++$+++ 48573 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And do it right after reading pro se prisoner petitions, right? You'd have a nice evening's work.
05-983 +++$+++ 48574 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We think that the pro se parents are quite different from pro se prisoners. I'd like to save the rest of my time for rebuttal.
05-983 +++$+++ 48575 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Andre. Mr. Salmons.
05-983 +++$+++ 48577 +++$+++ FALSE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: Congress made parents of children with disabilities parties in their own right in administrative and judicial proceedings under the IDEA, and granted parents their own rights under the Act. One of the rights granted expressly to parents is the right to seek reimbursement for private educational expenses when the parents believe the school has failed to provide an appropriate education. That is the claim that's at issue in this case, and the parents are clearly the appropriate party for that claim because they're the ones that have incurred the financial harm. When they are reimbursed --
05-983 +++$+++ 48578 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That argument proves a little too much. If you have a child who is the victim of a tort, for example, and suffers a serious injury, it is the parents who are going to have to bear the costs of accommodating that injury. And yet in any tort action, it's still the child who is the party and not the parent.
05-983 +++$+++ 48579 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that's right, Your Honor, but the difference here is that the statute in section 1412(a)(10)(C)(2), and this is on page 6A of Petitioner's brief, expressly provides a right to parents to seek reimbursement for the -- for their -- the educational expenses that they incur. And while the parents have to show that there was a denial of a free appropriate public education, we think it's clear that the statute makes the claim the parent's claim. And there are cases, for example, out of the Fourth District, in Emery, that would suggest that it is not even clear that the child would have standing to assert a claim for reimbursement when they're not out of pocket any expenses. So we think in a case like this, this is an easy case. We think clearly here the parents are the parties.
05-983 +++$+++ 48580 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But then you would be establishing a right for the least needy. I mean, if they're seeking reimbursement, they're able to pay the private school tuition. It's the people who can't -- who have no alternative, they have to take what the school district gives them because they don't have the wherewithal to enroll their child in a private school. And your argument, concentrating on the reimbursement right, would leave out those people, would it not?
05-983 +++$+++ 48581 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's not the sum total of our argument, Your Honor. I was just pointing out that actually there's a relatively narrow way to decide this case if the Court so chose, by focusing on the reimbursement claim in this case. Our position is that parents share in the substantive right to a free appropriate public education under the Act. And there are two things we would point to in regard to the definition of a free appropriate public education that we think makes this clear. And this is in section 1401 of the Act on pages 2A and 4A of Petitioner's brief. The first is the definition says that the term free appropriate public education means special education services provided, quote, without charge and at no cost to parents. We think clearly the free aspect, again, is first and foremost a right of the parents, because they're the ones that bear the cost. With regard to --
05-983 +++$+++ 48582 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm not following you. Where is this provision? 1401 what?
05-983 +++$+++ 48583 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I think you quoted from 4(a).
05-983 +++$+++ 48584 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's -- That's correct. The definition begins on page 2(a) "which says free appropriate public education on section 1401 and it says, "the term free appropriate public education means special education related services that -- and under subparagraph A have been provided at public expense under public supervision and direction and without charge -- Then in subparagraph 29 on page 4(a)the term special education is defined which is again the term from the definition of free appropriate public education, is defined to mean "specially designed instructions at no cost to parents." And so again the right to a free appropriate public education is defined expressly in part as terms of the parents interest. We also think that regards to any question about what is the appropriate, if you look back again on 2(a), subparagraph D of the definition of free appropriate public education, it says that it has to be special education services that are provided in conformity with the individual education program required under the Act. And now the individual education program or IEP process is the process by which parents are given the right to participate as full members of the IEP team and to have a say in helping to define what is an appropriate education for the child. And as this Court pointed out in Rowley, this is the essential feature of this Act. The way it works is that Congress did not specify or flesh out a substantive standard for what is appropriate for a child' instead it ensured -- it mandated, excuse me -- that an appropriate education is an education that involves parental involvement. And when there is a dispute with regard to whether the IEP team has adopted the right educational program for the child, we think that the Act makes parents, who again, who are full members of that team, when their views are rejected as far as what is appropriate, they are given the procedural safeguard of initiating a due process hearing. Again the Act refers repeatedly to --
05-983 +++$+++ 48585 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So their, their rights -- so their right to proceed in Federal court should be limited to the rights that you've identified under the statute as opposed to the right to proceed on behalf of the child?
05-983 +++$+++ 48586 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-983 +++$+++ 48587 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In other words, you think -- you think their -- their, their rights -- the rights they can assert are only ones they can identify as their own as opposed to the child's?
05-983 +++$+++ 48588 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well it, that is essentially our position although I would add that our position is that all of the rights of the statute are rights that are shared by the parent. At least with regard to the substantive --
05-983 +++$+++ 48589 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, then you still haven't said anything. I thought you were saying that they can sue for the money and they can sue for denied procedures. But if all the procedures are given and they're still not satisfied with the public education that is given, they would not be able to sue claiming that it was inadequate under the terms of the Act. You think they can sue then, too, as well.
05-983 +++$+++ 48590 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. We do --
05-983 +++$+++ 48591 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you haven't said anything then.
05-983 +++$+++ 48592 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
05-983 +++$+++ 48593 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You really haven't limited the scope of the parent's right to sue at all.
05-983 +++$+++ 48594 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well -- well -- just because I haven't limited the rights of the parents right doesn't mean that I haven't been trying to make a point about how to interpret the statute. The statute we think does not limit the parents' rights to sue on behalf of their child and on behalf of their own rights under the statute. We think the way to think about this -- again, keep in mind that the right to initiate a due process hearing and the right to seek review of that in court, those are rights that are contained in Section 1415, which is the procedural protection, the procedural guarantees of the Act. And we think those are rights that belong to the parents.
05-983 +++$+++ 48595 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Fine. You've given the procedure but where does the Act guarantee the parents the proper outcome? The proper -- assignment?
05-983 +++$+++ 48596 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we think the way --
05-983 +++$+++ 48597 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It does give the parents the right procedures explicitly and the rights to reimbursement for -- for private tuition.
05-983 +++$+++ 48598 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- that -- that's correct. The way we look at the question, Your Honor, is to say it gives the parents those rights, it gives the parents the right to be full members of the IEP team that determines the appropriate education for that child. While the school district has the final say as far as the contents of the IEP, the parents as members of that team have the right to initiate litigation through administrative procedures and then ultimately in court, if their view of what is appropriate for their child is rejected by the -- by the -- by the IEP team. And while, and no doubt --
05-983 +++$+++ 48599 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that right, where -- where is that right contained? You have given us citations for the other ones. Where is that right contained?
05-983 +++$+++ 48600 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The right to initiate --
05-983 +++$+++ 48601 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The right to initiate a suit solely on the basis -- not that I was denied procedures, not that I, I paid money for private schooling, but I do not believe the outcome, the education given to my child in the public school was enough.
05-983 +++$+++ 48602 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, what I would refer you to are the many provisions of the Act, and you can turn to pages 16 A and 17 A for example of Petitioner's brief that has these, in part, where the Act repeatedly refers to the parents' due process complaint, the parents' due process complaint, known as the parents' right to a due process hearing. The 2004 amendments expressly refer, define prevailing party to be parents. It referred to the parents' cause of action --
05-983 +++$+++ 48603 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They have the right -- they have the right to the hearing. But do they have the right --
05-983 +++$+++ 48604 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They have a right --
05-983 +++$+++ 48605 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do they have a right in and of themselves -- not as guardians -- do they have the right to a particular outcome in the hearing? That's, that's the point I'm inquiring to.
05-983 +++$+++ 48606 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our way of looking at the statute, Your Honor, says that if they are the ones that initiate the hearing, they file the complaint, they are parties to that hearing, then when, when their claims are denied, they are parties aggrieved within the meaning of the statute. It's the same term, parties aggrieved, that refers to the right to an appeal in the administrative process that refers to the ability to initiate a civil cause of action.
05-983 +++$+++ 48607 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It is not -- it is not just party aggrieved. It's party aggrieved by the findings and decision, as opposed to party aggrieved by a denial of the procedural right, and those strike me as two different things.
05-983 +++$+++ 48608 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- does say, it does reference back, in fact it references back to the complaint that's filed to initiate the due process hearing. And the parties are the ones that -- excuse me, the parents are the ones that are referred to as the ones filing those complaints. It is referred to repeatedly as the parents' complaint and the parents are -- are referred to as prevailing parties in the civil action. Again in the attorneys fee provisions that were added in 2004, expressly refer to quote, "the parents' complaint or subsequent cause of action." This is on page 24 A of Petitioner's brief. And it refers to parents as a prevailing party. There are other provisions that do so as well and while we're on the topic of the 2004 amendments -- I see my time is up.
05-983 +++$+++ 48609 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Salmons. Mr. Bergeron?
05-983 +++$+++ 48611 +++$+++ FALSE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you Mr. Chief Justice, and may it please the Court. The common law rule banning parental pro se representation is as longstanding as it is pervasive. Appreciating the fact that the IDEA does not abrogate the common law rule, Petitioners instead seek to circumvent that through this substantive rights theory. If a due process complaint never raised any issue of parental substantive rights, nor even did their cert petition, which at page 11 said children had substantive rights but parents have procedural rights. Now, however, they tell this Court that the right -- the parents' substantive right is so ingrained in the fabric of the statute that the courts should recognize it.
05-983 +++$+++ 48612 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How do you classify right to reimbursement?
05-983 +++$+++ 48613 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I would classify that as not a right, it's a remedy. It is a remedy premised on the denial of the FAPE to the child. And as a result, it is simply a derivative claim for the parents to recover those funds.
05-983 +++$+++ 48614 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The right to recover money, it's just a remedy, it's not a right?
05-983 +++$+++ 48615 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's, and that's how 1412 is structured, the provisions about reimbursement. It depends upon the predicate finding that the child was denied a FAPE and therefore one of the remedies, among other remedies, compensatory education and so forth, is reimbursement.
05-983 +++$+++ 48616 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about the provision that says at no cost to the parent?
05-983 +++$+++ 48617 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, certainly that has been one of the emphases by Petitioners, but the response to that is that the free aspect of the free appropriate public education does not give parents a substantive right to the education itself. We are not talking -- we are debating in this case, the merits of this case, we are debating the A aspect, the appropriateness. We are not saying, we have not expelled the student and therefore they have a claim based on that. It is simply --
05-983 +++$+++ 48618 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why don't we go back to my other question to be sure I got your point. The reimbursement is paid to whom?
05-983 +++$+++ 48619 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
05-983 +++$+++ 48620 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The child or the parents?
05-983 +++$+++ 48621 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our position is it would be paid to the child. The child would be the party that could bring that claim. And I just would like to clarify. If you look at page 153 of the --
05-983 +++$+++ 48622 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You reimburse the child for money that his parents spent?
05-983 +++$+++ 48623 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And Your Honor, that is how the court, lower courts in the Third Circuit, where the Collinsgru rule prevails, that's how they apply it.
05-983 +++$+++ 48624 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What would -- what would happen if the child were deceased or incompetent?
05-983 +++$+++ 48625 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that is, that is exactly the scenario in the Seventh Circuit case that they cited in 2007. And they said it's, the child's estate is the one that brings the claim. Now in that case, the child had actually expended the funds. But that case upheld the rule that we were advocating here.
05-983 +++$+++ 48626 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In an instance in which the money is paid to the -- the reimbursement is paid to the child, how does the child get the money to the parents?
05-983 +++$+++ 48627 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You've got to assume --
05-983 +++$+++ 48628 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Maybe, maybe these children don't. Do they set up trust funds for these reimbursements?
05-983 +++$+++ 48629 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think it is no different than a basic attorney fee award. There's not, there's not a claim that -- that, you know, if someone else, if the uncle pays the attorneys' fees that didn't negate the award of fees on behalf of the child.
05-983 +++$+++ 48630 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I'm not talking about negating the award. I'm -- if that theory is sound, if the child is the proper recipient of the reimbursement, I presume that ultimately the reimbursement is supposed to go to the person who paid the money?
05-983 +++$+++ 48631 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
05-983 +++$+++ 48632 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which would be the parent. My question is how does the child in that case get the money to the parent?
05-983 +++$+++ 48633 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, because the claim would have to be brought on behalf of the child, because they would not have the capacity to bring the claim itself, the award would go straight to the, to the guardian, who may be the parent that is proceeding on their behalf.
05-983 +++$+++ 48634 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the guardian can't the funds that belong to the child.
05-983 +++$+++ 48635 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but Your Honor, we believe that that's the pragmatic result that Congress intended here.
05-983 +++$+++ 48636 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. But if the, if the guardian is in a position to convey the money to himself in the different capacity as the parent, then why isn't the guardian equally in a, in a position to be substituted for the child in -- in litigating the action?
05-983 +++$+++ 48637 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor --
05-983 +++$+++ 48638 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You can't have it -- you can't have it both ways.
05-983 +++$+++ 48639 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the guardian can certainly bring the claim on behalf of the child. But its' different than bringing the claim in their own right. And I would point that at page 153 of the joint appendix, it specifies at the -- at the administrative hearing level, there was no claim for reimbursement to the parents. In fact, what they were seeking was reimbursement to Monarch, to the school. In other words, as far as the administrative record disclosed they had not actually paid the funds.
05-983 +++$+++ 48640 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is this to do -- I mean, I'm -- I'm puzzled about why we're talking about this complicated thing. I mean why -- the statute as I read it has a section and it's called procedural, procedural rights.
05-983 +++$+++ 48641 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
05-983 +++$+++ 48642 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And it says that the procedural rights, right at the beginning, are for both the children and the parents. And it sets up some procedures in the agency which is for the children and the parents and school board, and everybody is supposed to be there. And then another part of the same section says any person aggrieved by the first has a court hearing. Why isn't that the end of it? It's clearly aimed, as the statute is aimed, at both students and parents. And then we give them all procedural rights, and what in the statute says that the procedures that they're following before the school board happen to be for both parents and students. But without saying a word, a different procedure, a Federal court procedure in the same section, without saying anything, would be just for the students and not for the parents? I mean, I find that hard to read the statute that way.
05-983 +++$+++ 48643 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, if you're talking about the distinction between the procedural and the substance in the Act, Congress made clear --
05-983 +++$+++ 48644 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I'm not. I'm talking about the whole Act. Throughout the whole Act, they talk about parents and students.
05-983 +++$+++ 48645 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
05-983 +++$+++ 48646 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And who writes the check? The student?
05-983 +++$+++ 48647 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Generally, no, Your Honor.
05-983 +++$+++ 48648 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. Of course. The parent writes the check. And has the interest? I have an interest in educating my children as you do in yours. And this statute talks about that throughout.
05-983 +++$+++ 48649 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Just --
05-983 +++$+++ 48650 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So I'm looking at the particular words in the procedural section, and the particular words explicitly say that every subsection is both for parent, through child; and then we get to the Court one and it talks about person aggrieved. And you, I guess, have to convince me -- which as I'm putting it, sounds like an uphill battle -- (Laughter.)
05-983 +++$+++ 48651 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you have --
05-983 +++$+++ 48652 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'll do my best.
05-983 +++$+++ 48653 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You have to convince me that person aggrieved at the at the end of this section is meant to apply to only some of the people whom every other section talks about, namely just children, not parents. Now why should I read that it way?
05-983 +++$+++ 48654 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, let me try to explain, Justice Breyer. The reason is as Petitioners effectively conceded in their reply brief, party aggrieved does depend on the party entitled to the remedy. And if we look at the amendment in 1415(f)(3)(E), which was just added in 2004, it clarifies that all relief that the hearing officer should award is based on substantive violation to the child. And it's important that if we look to the entirety of subchapter 2, there are more than two dozen references to the right, to the obligation, to the provision of a FAPE to the child. That is what we are talking about. The dispute resolution provisions hinge on vindicating the child's right. And I think the question earlier to Mr. Salmons was --
05-983 +++$+++ 48655 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What's that section you just alluded to? I'm blasting by it. Where is it, in the --
05-983 +++$+++ 48656 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, which section?
05-983 +++$+++ 48657 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ F --
05-983 +++$+++ 48658 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, 1415(f)(3)(E}, I'm focusing on 21 A of the blue brief, Your Honor. And once that section --
05-983 +++$+++ 48659 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ 21 A or -- --
05-983 +++$+++ 48660 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 21 A of the blue brief, Your Honor.
05-983 +++$+++ 48661 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And which is the statutory section again.
05-983 +++$+++ 48662 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's 1415(f)(3)(E).
05-983 +++$+++ 48663 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought you said 14.
05-983 +++$+++ 48664 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ (f)(3)(E).
05-983 +++$+++ 48665 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are you sure it's not 18(a)?
05-983 +++$+++ 48666 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ (f)(3)(E) is on 21a of my version of the blue brief, Your Honor. That's the provision that's titled decision of the hearing officer, and provides that the hearing officer should grant relief on substantive grounds.
05-983 +++$+++ 48667 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's in 18(a) of mine, too. Maybe I have a different brief there.
05-983 +++$+++ 48668 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's not my brief, Your Honor, I apologize. In any event, it limits the hearing officer's ability to reward relief based on the substantive, whether the substantive right to the FAPE has been awarded or not. And then we return to Justice Breyer's point about the party aggrieved, the party aggrieved by the finding or decision. Because the decision is limited to substantive grounds, that is what we are really talking about here. And I think one of the confusing aspects about what the nature of the substantive right is, and I think we've heard some different versions of that this morning, is what is the scope. Petitioners in their reply brief seem to try to retreat a little bit and make the rights more palatable. But if they -- in doing so, the question is, what is the right different than the child's right? And we simply do not have the answer to that, and for the school districts applying this act on a daily basis, and for courts interpreting it, it simply poses numerous problems trying to apply to a parent a statute that was designed to benefit children.
05-983 +++$+++ 48669 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your argument, I guess, is this argument. Now you're conceding the parent does have a right to go to court, but he can only complain about something that hurts him. Right?
05-983 +++$+++ 48670 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would not --
05-983 +++$+++ 48671 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He can't complain in court or -- well, it sounds as if you were saying that. You're saying that the hearing officer has to decide against the parent and if he doesn't decide against the parent, obviously the parent can't go into court because he doesn't have anything to complain about, the parent. Isn't that your point?
05-983 +++$+++ 48672 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, he can't decide against the parent because the only issue at stake is the right of the child.
05-983 +++$+++ 48673 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, well -- right. I'm sorry. Then you go ahead. I thought I heard you say that the problem is that the parent didn't have a right taken away by the hearing officer, and that's why the parent can't go to court.
05-983 +++$+++ 48674 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, he won't have a right taken away from him because it's not -- it's not his claim at stake in the due process hearing.
05-983 +++$+++ 48675 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, I would agree, we can be on the same grounds there.
05-983 +++$+++ 48676 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
05-983 +++$+++ 48677 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I agree that if the parent isn't hurt, if the parent wasn't deprived of anything, the parents can go to court but doesn't have anything to complain about, you know, whereas another section of the statute says that reimbursement is something supposed to be reimbursement for the parent, so it would seem as if the panther has something to complain about. Isn't that so? It says the -- I think so -- it says a parent is to be reimbursed. I thought that was one of the things that --
05-983 +++$+++ 48678 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor. That's what it says.
05-983 +++$+++ 48679 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So, now it looks as if the parent has something to complain about. The parent hasn't got the money that he was supposed to get. Now we have something to complain about, so therefore, we're aggrieved, and then the last section says an aggrieved person can go to court.
05-983 +++$+++ 48680 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. We simply feel that because the reimbursement, as I said before, hinges on the deprivation of the right to the child and not the deprivation of the substantive right to the parent, it is the child's claim to bring. I appreciate --
05-983 +++$+++ 48681 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Bergeron, I have a basic conceptual problem, both with that response and with your larger argument. Leaving aside how we should classify the reimbursement right or classify reimbursement, you make a broad distinction between the substantive right of the child to the free appropriate public education and on the other hand, the procedural rights of the parent in going through the process that ultimately comes to a conclusion for the child's benefit. The conceptual problem I have is that I don't understand why it makes sense to say that the parents have procedural rights unless that procedural -- or unless those procedural rights of the parents are in aid of some substantive entitlement for the parents. We give procedural protection to people in order to vindicate some substantive interest that they can claim, and you're, in effect, splitting those two apart. You're saying one person has a substantive right, the other people have procedural right. And I don't see conceptually how you can make that split. And if you don't make that split, then it only makes sense that the right to the free public -- the free appropriate public education is, as the statute in one place seems to say, a right of the family group, the parents and the child together, rather than the right of the child alone. So conceptually, how do you defend the distinction that you make between substantive rights on one person and procedural rights in another?
05-983 +++$+++ 48682 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And here's how I would explain it, Justice Souter. The right, the substantive right is the right to a FAPE to the child. And because the child does not have capacity, Congress implemented a pragmatic system to allow the parents to protect those rights. It's derivative for the parent to protect the child's right --
05-983 +++$+++ 48683 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then why don't we say that they are the procedural rights of the child and the parents are simply stepping into the child's shoes to vindicate them?
05-983 +++$+++ 48684 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is exactly what 1415(m) says, Your Honor. That allows a transfer of rights. And 1415(m) is at 11a and 12a of the red brief, and I hope I've got the cite right this time. 1415(m) allows for states to require, and Ohio does, to require the transfer of all rights under subchapter 2 that a parent would otherwise have, straight to the child. So basically --
05-983 +++$+++ 48685 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's when the child reaches majority.
05-983 +++$+++ 48686 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
05-983 +++$+++ 48687 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The child is no longer a child, the child is an adult.
05-983 +++$+++ 48688 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that's my -- that's part of what I was trying to say.
05-983 +++$+++ 48689 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm sorry. You go ahead.
05-983 +++$+++ 48690 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh. Well, what I'm trying to say is because the child lacks capacity, they can't do all these things on their own until they reach majority. But once they do and the rights transfer, it illustrates that it's not really the parents' rights, it is the child's right that they are protecting.
05-983 +++$+++ 48691 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What if -- what stands in the way of that analysis is the text, which says all other rights accorded to parents under this subchapter transfer to the child. Not only doesn't that help you, it seems to me it hurts you. It acknowledges that there are rights accorded to parents.
05-983 +++$+++ 48692 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. And those would be the procedural safeguards that are delineated in the Act.
05-983 +++$+++ 48693 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But then you were denying them, as I understood the argument.
05-983 +++$+++ 48694 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, let me clarify then. I wasn't denying the existence of the procedural safeguard. To the contrary, what I'm saying is that they are not redressible independent of themselves in Federal court unless -- and this is what 1415(f)(3)(E) clarifies, is that you have to have a substantive violation. Because if you think of a situation in which the child is provided a FAPE, no one disputes that, but a parent says well, you didn't invite me to a meeting, what's your remedy there? There is no remedy. And that's what Congress was trying to clarify.
05-983 +++$+++ 48695 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't that the problem? On the analysis that you're coming up with, parents end up without even the procedural rights, because you're saying the only person who can basically invoke a violation of procedural right is the person whose been denied the substantive right. The parent hasn't been denied the substantive right. Therefore, the parent cannot invoke even the procedural right which ostensibly on your own analysis, the parent has been given. That can't be correct.
05-983 +++$+++ 48696 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if you look at -- I'll direct you to the DiBuo case and the Lesesne case, I'm probably mispronouncing both of them --
05-983 +++$+++ 48697 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but before you direct me to cases --
05-983 +++$+++ 48698 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay.
05-983 +++$+++ 48699 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's wrong with the analytical point that I just made?
05-983 +++$+++ 48700 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, the -- that's what Congress was trying to clarify in 2004. They did not want technical procedural violations to eclipse the substantive rights, and so what they provided was the substantive right is the only one that is important.
05-983 +++$+++ 48701 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, but instead of saying they're not eclipsed, you're saying they are totally blocked out. Because you analysis, I thought was, in response to my earlier objection, that the procedural right, in fact, can only ultimately be invoked for the vindication of the substantive right. And because the substantive right is the child's, not the parents, it would follow that the parents cannot even invoke their procedural rights, and we know that that can't be correct.
05-983 +++$+++ 48702 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right, and I'm not saying that the parent -- the parent's procedural rights are gone. I mean, remember --
05-983 +++$+++ 48703 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if the parent's procedural rights are not gone, then the parents must be able to invoke those procedural rights based on what they claim to be a denial of some substantive entitlement. You're saying that's the entitlement of the child, but if the parents are going to have any procedural right worth having, they've got to invoke it for the purpose of vindicating that substantive right; isn't that correct?
05-983 +++$+++ 48704 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-983 +++$+++ 48705 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Then why do not the parents, when they are claiming that they are aggrieved, have as much right to make a claim that goes to the substantive denial as to the procedural denial, simply because the two are inseparable?
05-983 +++$+++ 48706 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, because that -- again, that was what Congress was trying to clarify in 2004. And if you look at the DiBuo case and the Lesesne case cited on page 27 of the SG's brief, both those cases make clear that notwithstanding procedural violations, there must actually be a causation, there must actually be substantive harm before any relief can flow from that.
05-983 +++$+++ 48707 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does a parent have a right to bring a 1983 action if their procedural rights under this statute are interfered with by the state actors?
05-983 +++$+++ 48708 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if the parent would otherwise have a 1983 claim under 1415(l), if it relates to an IDEA claim, there would have to be exhaustion first.
05-983 +++$+++ 48709 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think I understand your argument based on 3(E), but when I look at 21a of my blue brief there's another provision on attorneys' fees and it's phrased in a very curious way. It says that fees are allowed to a prevailing party who is the parent of a child with a disability. It seems to me that's the most difficult express language for you to deal with. It doesn't say attorneys' fees happen to be allowed to parents, it's to a prevailing party who is a parent. And I understand your argument to be that a parent can never be a prevailing party.
05-983 +++$+++ 48710 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. And let me try to explain why. If you look at 1411(e)(3)(E), which is 5a of the red brief, and I'm sorry to keep jumping briefs on you, that provides that litigation brought to secure the right of the child to a FAPE is brought on behalf of the child. So Congress added both that section and the section you were just referring to at the same time, and the only way to read them harmoniously is that any action that is being brought on behalf of the child to secure the FAPE, it's not the parent's own action that they are bringing, they are bringing it on their own -- on behalf of the child.
05-983 +++$+++ 48711 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What was the section you cited?
05-983 +++$+++ 48712 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 1411(e)(3)(E), on 5a of the red brief.
05-983 +++$+++ 48713 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ (e)(3)(E).
05-983 +++$+++ 48714 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
05-983 +++$+++ 48715 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Legal fees. The disbursements under subparagraph (d) shall not support legal fees, court costs, or other costs associated with the cause of action brought on behalf of a child with a disability to ensure a free and appropriate public education for such child. What do you think that proves?
05-983 +++$+++ 48716 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What I'm saying is Congress recognized that when legal action is being brought to secure FAPE, just like it's the child's right to the FAPE under subchapter 2, it is being brought on behalf of the child. And that's where petitioners run into problem with the common rule law, because the common law rule that they don't dispute is that parents cannot bring claims on behalf of the child pro se. So they have to find a way to abrogate, and they initially argued in the opening brief for an exception to the common law rule, which from my reading of the reply brief they have abandoned. So the core issue in dispute as far as the petitioners go is what is the nature of the substantive right. And I'd like to make the --
05-983 +++$+++ 48717 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There's a section you pointed to that says disbursements under subparagraph (d), but your brief doesn't include subparagraph (d).
05-983 +++$+++ 48718 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's the high cost, one of the high cost funds for states, Justice Ginsburg. I'd like to make --
05-983 +++$+++ 48719 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well then, if this provision is limited to subparagraph (d), how can you argue that it covers the waterfront?
05-983 +++$+++ 48720 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think it's indicative of what Congress appreciated the claim would look like on any level, and it's not simply saying that those funds aren't provided under subparagraph (d). That is the nature of the claim. Regardless of under what section we are looking at, that is the nature of the claim that could be brought in order to secure a FAPE for the child, and in every circumstance, it is brought on behalf of the child. Your Honor, I'd like to make one point, if I can, about the spending clause, in response to petitioner's argument in the reply brief. Petitioners effectively say that the spending clause doesn't apply because this is not an issue of liability. I'd like to direct your attention again to Rowley, where at footnotes 11 and 26 the Court recognized the difference between the educational benefit which is the FAPE, and maximizing the educational outcome.
05-983 +++$+++ 48721 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are attorneys' fees allowed to a parent who is bringing one of these cases on behalf of a child pro se?
05-983 +++$+++ 48722 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
05-983 +++$+++ 48723 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's a convoluted question. Okay. So there's no issue under the spending clause that a non-attorney parent would be able to claim some sort of attorneys' fees?
05-983 +++$+++ 48724 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's what -- I think there have been four circuits who addressed that in the context of attorney parents, and they've all said that they cannot get fees.
05-983 +++$+++ 48725 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So how is the spending clause issue very significant in terms of the exposure of the school boards?
05-983 +++$+++ 48726 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Arlington did not limit it to simply liability. It said repeatedly obligations and conditions. And that's exactly what Rowley was looking at in footnotes 11 and 26. We don't necessarily have -- have to have a line item that there's going to be X dollars in damage. It was simply the difference between an educational benefit and maximizing that benefit that triggered spending cost concerns in Rowley. Just like in South Dakota v Dole the issue of whether someone was 21 in order to consume alcohol was not necessarily a liability but it was a very important obligation or condition imposed upon the State. And their second point regarding the spending clause is that not every single detail needs to be fleshed out in clear notice.
05-983 +++$+++ 48727 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So I take it your argument is, your red brief argument is that Congress said, states, if you get some judgments against you and they award attorneys' fees, you pay for it, we won't? Is that what it said?
05-983 +++$+++ 48728 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
05-983 +++$+++ 48729 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't pay for it, you can't pay for it out of the grant?
05-983 +++$+++ 48730 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
05-983 +++$+++ 48731 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. So we're not paying for this, you pay for it. Is that right?
05-983 +++$+++ 48732 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry?
05-983 +++$+++ 48733 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ States --
05-983 +++$+++ 48734 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
05-983 +++$+++ 48735 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- if some people bring claims against you under this because you didn't have a good plan for the child and your attorneys' fees are awarded against you, don't pay for it out of this grant. Isn't that what you're saying it says?
05-983 +++$+++ 48736 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, it's a little bit different because part of the -- part of the real issue here is not necessarily an award of attorneys' fees to the other party, but it's the incurrence of attorneys' fees defending --
05-983 +++$+++ 48737 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought what your argument was -- and if it's not, forget it, it's just that I don't understand it. That here the Government says pay for this out of your own pocket, and then its defines what you're supposed to pay out of our own pocket is, as a parent representing a child, not his own action. And then later on they say, they define it differently. They talk about prevailing party. The parents of the prevailing party. But you say that second phrase must mean the first phrase. Because it wouldn't make sense for the Government to say pay for that out of the grant but not this out of the grant. That's your argument?
05-983 +++$+++ 48738 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- I think that's right.
05-983 +++$+++ 48739 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. It is an argument.
05-983 +++$+++ 48740 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and just to clarify, Congress hasn't provided any funds for this. I mean they, they recognized in 2004 they were only funding 19 percent of the obligations of the statute, and we have to pick up the balance of the tab. And their other argument on the spending clause is that it's, you don't have to flesh out everything in the statute but here we're talking about two core issues. One is abrogating the common rule law and the other is creation of substantive rights to an entirely new class of beneficiaries. If there's ever anything that demanded clear notice, this is it. It is much more serious and severe than the expert fees at issue in Arlington, and school districts and states simply have to have notice, what is the parameter of the right that you are being requested to recognize? And based on the briefing, and based on what we have heard in argument, it is simply not clear to the school districts not only what the nature of the right is but how to apply it.
05-983 +++$+++ 48741 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's where I have a little bit of trouble. It's not -- the underlying right is still the same. It's the right of the child to a free and appropriate public education. And that can be vindicated in court actions by attorneys who get their fees paid if they prevail, and all we're talking about is a situation where the parents can assert that same right when an attorney won't. And I'm just wondering how significant additional exposure we're talking about? And what turns on that is whether to take the spending clause argument seriously or not.
05-983 +++$+++ 48742 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well -- and I think the answer to that is it's still not clear to me from -- from listening to the argument today, I mean, Petitioner acknowledged the child falls out of the equation. This is a statute that needs to benefit the child, and they're taking the child completely out. And so what is the nature of this parental right? The SG says well, it's all, it's all intertwined. But if we look at what Petitioner said --
05-983 +++$+++ 48743 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So if you agree we're talking about. What is the toll on the states, it seems to me that if the state would have to pay for a lawyer, if it lost, and that parents who brings the case is not entitled to reimbursement, how is the state's pocketbook affected?
05-983 +++$+++ 48744 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, in litigating this case while the Winkelmans were pro se, we expended far greater than the $8,000 at issue in Arlington, on our legal fees defending --
05-983 +++$+++ 48745 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right. But you would have had to do that if they had gotten a lawyer to take the case. What, what your spending clause argument is, the State agreed to undertake this liability, that they would have to provide a free and appropriate education, that if they litigated, they would have pay the other side's attorneys' fees. But if they knew that in the case where an attorney wouldn't take it, the parents could prosecute it, and that might result in overturning their decision and that might result in greater expense, well, in that case they would not have bought into this deal at all. That seems a little implausible.
05-983 +++$+++ 48746 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Mr. Chief Justice, remember at the time the Congress reauthorized in 2004, every circuit that had addressed it besides the First had agreed that parents could not bring a pro se. So the states reasonably would not have believed, especially in the circuits where it was decided, that they would have to -- have to come up with these funds.
05-983 +++$+++ 48747 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not disputing that it results in additional exposure. I'm just disputing that it affects the voluntariness of their agreement to undertake the program.
05-983 +++$+++ 48748 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if you, in the dissent in Arlington, they made -- Justice Breyer made a basically materiality argument and the majority did not seem moved by it. So I think, this is something that is very significant, not simply on the dollars involved, but how we apply this substantive right to parents that Petitioners seek to have recognized.
05-983 +++$+++ 48749 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could the court appoint the parent guardian ad litem and just the parent proceed as guardian ad litem?
05-983 +++$+++ 48750 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That wouldn't solve the issue of, under the common law the guardian ad litem would not have the ability to receive pro se on the common law fees, the same as the parent. The rule is the same. So they would still have --
05-983 +++$+++ 48751 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The guardian ad litem cannot proceed pro se?
05-983 +++$+++ 48752 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. Unless they're -- unless they have -- unless they are an attorney. Which in many cases the appointment to someone who is an attorney.
05-983 +++$+++ 48753 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Bergeron, on, one of the points you made on the spending clause argument, I thought, was that if there are lawyers representing the parents, the lawyers are going to screen out the more frivolous cases. If they are not, more frivolous cases are going to be brought. And there's -- there's an intuitive appeal to that argument. Do we have any -- any figures on the comparative numbers of frivolous cases in lawyer representation and pro se representation under the Act?
05-983 +++$+++ 48754 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, we don't because most of the circuits were saying this is -- we're not going to allow pro se --
05-983 +++$+++ 48755 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We don't have any First Circuit numbers --
05-983 +++$+++ 48756 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
05-983 +++$+++ 48757 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- versus other numbers?
05-983 +++$+++ 48758 +++$+++ TRUE +++$+++ MR. BERGERON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No we checked and couldn't find anything, Your Honor.
05-983 +++$+++ 48759 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Thank you.
05-983 +++$+++ 48760 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Bergeron. Mr. Andre, you have three minutes remaining.
05-983 +++$+++ 48762 +++$+++ FALSE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. I would like to turn briefly to Respondents' assertion that Petitioners somehow waived their claim to reimbursement by not exhausting it below. We addressed this in our reply brief, but if the Court wishes to look at pages 78 and 88 of the joint appendix, particularly page 78, there it is clear that the Petitioners were seeking reimbursement in their own right. On the page 153, that Respondent refers to, I assume that that point in time we were now on appeal to the second tier of the Ohio administrative proceeding, and perhaps at that point in time, Monarch School was actually paying for Jake's education on a grant-like basis, because that was something that happened in this case. And that perhaps at that point in time Petitioners referenced reimbursement to Monarch because Monarch had actually been expending the fund. But by and large my clients expended the funds to educate Jake at Monarch School, and they certainly did exhaust that claim to reimbursement.
05-983 +++$+++ 48763 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you claiming that hiring an attorney would be a cost, if the phrase "at no cost to the parent," if they have to hire an attorney, that the cost --
05-983 +++$+++ 48764 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly. And I mean, I think that's why Congress included the attorneys' fee provision in 2004 that recognized that parents can be prevailing parties. And if they prevail on establishing that a free appropriate public education has not been provided, then they can recover attorneys' fees as part of their, their right to try to vindicate Congress's purposes at no cost to them.
05-983 +++$+++ 48765 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So why didn't Congress just add the provision making this very clear that the Senate had passed, why did the House boot it out of the conference bill?
05-983 +++$+++ 48766 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't know. The legislative record is entirely silent. But one plausible inference could be, could be reached based on looking at the addition of attorney's fees provision and the timing of the Maroni decision in the First Circuit. Maroni came down after the parental lay representation provision was proposed by the Senate. Maroni was the first court of appeals case to recognize that parents may litigate these cases pro se. The way Maroni did it however was by adopting our primary argument here today, which is that parents possess the right to -- to sue in their own name, as pro se litigants, not as lay representatives of their children, and seek to enforce the full bundle of rights. Congress very well could have looked at Maroni and said aha, that's what we intended all along; Maroni got it right, and then they just put -- Congress just put the thumb on the scale a little bit by enacting the attorneys fee provision which made it clear that parents can be, or are the prevailing party if the plaintiffs prevail in an IDEA action. Finally, I would like to address two -- two points about the spending clause. Of course we believe the spending clause is totally inapplicable, but I want to respond to Respondent's suggest that we're advocating creation of a new substantive right here.
05-983 +++$+++ 48767 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why do you think it's totally inapplicable?
05-983 +++$+++ 48768 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We think that this Court's spending clause jurisprudence is concerned with providing clear notice to states with respect to liability and certain fiscal obligations. And what Respondent is complaining about here --
05-983 +++$+++ 48769 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Please --
05-983 +++$+++ 48770 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, what Respondent is complaining about here is essentially a disparate impact. And this Court has never recognize a disparate impact claim under the spending clause.
05-983 +++$+++ 48771 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you think it is not violated, not that it doesn't apply for some reason? There is no doubt this is spending clause legislation, right?
05-983 +++$+++ 48772 +++$+++ TRUE +++$+++ MR. ANDRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, absolutely spending clause legislation. But we believe that the clear notice concerns of the spending clause are not even implicated. But that if the clear notice concerns were implicated, the statute is -- clear.
05-983 +++$+++ 48773 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. The case is submitted. [ Whereupon, the case in the above-titled matter was submitted at 11:04 a.m.]
05-996 +++$+++ 48777 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first today in Marrama versus Citizens Bank of Massachusetts. Mr. Baker.
05-996 +++$+++ 48779 +++$+++ FALSE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Section 706(a) of the Bankruptcy Code provides that a debtor may convert a case under chapter 7 to a case under any other chapter of the Bankruptcy Code at any time if the case has not been converted previously from another chapter, and that any waiver of the right to convert a case under the subsection is unenforceable. Other subsections of section 706 give rules for the Court to decide about conversion in the case where some party other than the debtor requests conversion of the case and also provides that the conversion must lead to a chapter to which that debtor is qualified to be a debtor.
05-996 +++$+++ 48780 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Baker, as I understand it subsequent to the grant of certiorari in this case, your client filed for relief under Chapter 13 and that relief was denied. You're now seeking under -- Official your petition seeks a conversion to Chapter 13 and I guess I wonder what relief is still open to you.
05-996 +++$+++ 48781 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the present case or the new case?
05-996 +++$+++ 48782 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What relief is open to you in this case? In other words, you're trying to get a conversion to Chapter 13. Subsequently, you've tried to apply for relief under Chapter 13 and that's been denied. Why isn't the case moot in the sense that that relief is not available to you now?
05-996 +++$+++ 48783 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The circumstances of the new case are entirely different. In fact, in that -- in the present -- the new case, the court decided that he was not eligible because his debt limit exceeded the statutory limitations that exist section 109(e). There is a three-year time span between the two, and we believe that the existing case is not moot because he still has remedies that he can obtain in Chapter 13.
05-996 +++$+++ 48784 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if he isn't eligible -- the new case determined that he was not eligible because his debts were too high. He didn't incur additional debts between the time of the proceeding one and proceeding two?
05-996 +++$+++ 48785 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, he did.
05-996 +++$+++ 48786 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Or he didn't reduce the Official debt. If we have a finding from the bankruptcy court that he is ineligible, that is number one condition to convert into Chapter 13. If you don't meet that condition, that's the end of the matter.
05-996 +++$+++ 48787 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I wouldn't say it would be the end of the matter in the present case because the eligibility was never questioned below, was never a factor below.
05-996 +++$+++ 48788 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But now there has been a finding, and it's an essential finding, that there be eligibility. And wouldn't the bankruptcy court's findings in the later case have preclusive effect?
05-996 +++$+++ 48789 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the prior case? I would say no, Your Honor. First, because as I mentioned, the issue of eligibility within the monetary limits was never raised below. And in fact, if you look at his schedules in the supplemental joint appendix, he is clearly within the statutory limits based -- just looking at his schedules.
05-996 +++$+++ 48790 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that's a question you can argue on appeal in -- from the recent decisions, but for the moment you have a bankruptcy court making that determination, which I think would be preclusive on another bankruptcy court.
05-996 +++$+++ 48791 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The -- well, the -- the Official bankruptcy court made a decision in the current case, the new case, but they haven't dismissed it. Dismissal is in fact on appeal to the District Court for the District of Massachusetts. The reason is, in our view is that the bankruptcy court in the new case incorrectly looked back to the claims that had been filed in the prior case. Now, it is a difficult issue in some respects because there is case law at least in Massachusetts or the First Circuit that says a debtor does not have standing to object to claims in a Chapter 7 case. So the fact that a number of claims were filed and argued doesn't relate to, in a prior case, does not have a preclusive effect in the new case. Now we did, in fact, object to quite a number of claims and the eligibility, and I think that ultimately once the claim objections are resolved, we will be within the statutory limits.
05-996 +++$+++ 48792 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If the decision is affirmed on appeal to the First Circuit, do you think you could still argue that there's qualification for Chapter 13, after the court of appeals has affirmed a determination that there isn't?
05-996 +++$+++ 48793 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm -- I don't quite follow the question. Would you mind restating it? Official
05-996 +++$+++ 48794 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We have now a judgment that this debtor is ineligible for Chapter 13. If that judgment is affirmed on appeal to the court of appeals, can you nonetheless argue that somehow there is no preclusive effect?
05-996 +++$+++ 48795 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, because there's a three-year difference between the two and substantially different facts. The -- we have to go back, I think, to the case that's at bar, because it is those claims, the claims that were filed in the current case that are the issue. As I say, we are in the process of doing objections to those claims and I think that ultimately we will come within them.
05-996 +++$+++ 48796 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They're not at issue as far as this mootness question goes. I mean, you're seeking to have the right to file under 13. And if, in fact, there's no eligibility to file under 13, you're asking for the impossible. The case is simply -- you know -- it's just air. So I guess, perhaps you rely on the fact that the case is still on appeal. Should we not take as a given that there is a judgment that you don't qualify for 13, and yet you're coming before us asking us to say that you can apply under Chapter 13. It doesn't make any sense.
05-996 +++$+++ 48797 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would respectfully say -- Official suggest that it does, Your Honor, because once -- we don't really get to the eligibility question until the court below considers it in the context of the case that's at bar. We have to, as I say, we are in the process of objecting to claims and resolving them. Now the --
05-996 +++$+++ 48798 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, didn't you make that argument to the bankruptcy court that found that you were not eligible?
05-996 +++$+++ 48799 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, because as I mentioned before, the case law in the First Circuit up to this point has held that a Chapter 7 debtor does not have standing to object to claims. Now in the new case, in fact, the bankruptcy court --
05-996 +++$+++ 48800 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's what I'm asking. A Chapter 7 debtor doesn't, but a Chapter 13 debtor presumably does. So didn't you make the same argument to the bankruptcy court.
05-996 +++$+++ 48801 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the old case, yes, once we converted the chapter.
05-996 +++$+++ 48802 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And they rejected it?
05-996 +++$+++ 48803 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I beg your pardon, Your Honor. No, we did not address eligibility in the present case.
05-996 +++$+++ 48804 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't care about the present case. I care about the Chapter 13 case in which Official you have been found not to qualify for Chapter 13 treatment. Didn't you make before that court the same argument you're making now that some of the debts shouldn't be counted.
05-996 +++$+++ 48805 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I did.
05-996 +++$+++ 48806 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They rejected it, right?
05-996 +++$+++ 48807 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Pardon?
05-996 +++$+++ 48808 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And they rejected it?
05-996 +++$+++ 48809 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The bankruptcy court did reject it, yes. But they rejected it because, as I say, up to that point the case law had held that we did not have standing to object to the claims, so we were bound by what was there.
05-996 +++$+++ 48810 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you said it was only a Chapter 7 debtor who couldn't object.
05-996 +++$+++ 48811 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-996 +++$+++ 48812 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you are applying under Chapter 13.
05-996 +++$+++ 48813 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. What I'm trying to say is in the previous Chapter 7 case we lacked standing to object to those claims and that in the new Chapter 13 case the court took the Chapter 7 case claims and said, you're bound by these in the new chapter 13 case.
05-996 +++$+++ 48814 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Didn't you object to that and say you should look at these claims afresh? Official
05-996 +++$+++ 48815 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-996 +++$+++ 48816 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what did the court say? Did it say it had to or that it did so and still found them over the limit.
05-996 +++$+++ 48817 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- the bankruptcy court in the new case said -- pardon? The bankruptcy court in the new case said that there are circumstances under which a debtor would have standing. This was in effect a new rule of law for that, for this district. So subsequent to that decision we did, in fact, object to quite a number of claims and substantially reduced the total of those claims, and I think that once --
05-996 +++$+++ 48818 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What did the bankruptcy court say?
05-996 +++$+++ 48819 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The bankruptcy court sustained our objections to those claims and in fact reduced the total substantially.
05-996 +++$+++ 48820 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't understand that. But did it reduce it to a level that you qualified for Chapter 13 treatment?
05-996 +++$+++ 48821 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We are not finished with the claims objection process. I believe that once we are --
05-996 +++$+++ 48822 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course you are. They've rendered a decision. How could you not be finished with the claims objection process if the bankruptcy court has Official rendered a final decision.
05-996 +++$+++ 48823 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the bankruptcy court rendered a final decision which is on appeal in the new case. We are objecting to the Chapter 7 claims in the old case. I apologize if this is confusing.
05-996 +++$+++ 48824 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It is terribly confusing. It seems to me that the Chapter 13 bankruptcy court had the responsibility for determining whether you qualified under the, you know, under the amount of debt.
05-996 +++$+++ 48825 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And it did so by reference to the claims that had been filed in the previous Chapter 7 case. We can't object to claims in a Chapter 13 case that haven't been filed. So procedurally, we had to go back to the Chapter 7 case and do the claims objections within the context of the old Chapter 7 case. Now, in the Chapter 13 case we used the -- the bankruptcy court used the total of those claims that had been filed in the Chapter 7 case to determine eligibility in the 13. In doing so, the bankruptcy court basically announced a new rule of law that the claims that had been filed would be essentially I suppose, res judicata in the subsequent case, but that in some cases a Chapter 7 debtor --
05-996 +++$+++ 48826 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And you objected to that, I Official gather?
05-996 +++$+++ 48827 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Sorry?
05-996 +++$+++ 48828 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You objected to that, to that ruling?
05-996 +++$+++ 48829 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not necessarily, because it does give you a vehicle to go back to the old Chapter 7 case and do the procedural claims objections in that case, which is what we did, and we substantially reduced the total of the claims.
05-996 +++$+++ 48830 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What is the status of the Chapter 7 case? I was under the impression it had been dismissed and a determination of no discharge had been made.
05-996 +++$+++ 48831 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ A determination of no discharge had been entered. However, it was an asset case, so it remains open, it remains open at this point, until the Chapter 7 trustee makes a distribution to creditors or files his final report with the court. It has not been dismissed.
05-996 +++$+++ 48832 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But there's a determination that you're not entitled to a discharge? That has been made.
05-996 +++$+++ 48833 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-996 +++$+++ 48834 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If we just could go to the merits for a second here. You're saying this word, Official where it says, the word is you "may convert," and that means you can convert no matter what?
05-996 +++$+++ 48835 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The plain language of the statute says that, yes, Your Honor.
05-996 +++$+++ 48836 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No matter what? Okay, suppose they repeal Chapter 13 before you convert. Then can you convert?
05-996 +++$+++ 48837 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry. Would you repeat that?
05-996 +++$+++ 48838 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm just producing examples where it's clear you can't convert. Now, suppose Congress -- there is no Chapter 13. Could you convert then?
05-996 +++$+++ 48839 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not if there's no Chapter 13.
05-996 +++$+++ 48840 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, okay. Suppose he dies. Could you convert then?
05-996 +++$+++ 48841 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the debtor dies?
05-996 +++$+++ 48842 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. No inheritance, no nothing.
05-996 +++$+++ 48843 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there is a rule, I believe it's --
05-996 +++$+++ 48844 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even though there's no such person existing any more. He's gone and his whole family is gone, and there's no inheritors, nothing. Then can he convert? No. Official
05-996 +++$+++ 48845 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. I think the rule 2009 says, the Federal Rules of Bankruptcy --
05-996 +++$+++ 48846 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm trying to produce ridiculous examples. Maybe -- all right, so you say even if he's dead and there's no family he still could convert. That's an extreme test of my hypothetical, but okay. What about if, in fact, he goes insane? No.
05-996 +++$+++ 48847 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, again, Your Honor, the rule says --
05-996 +++$+++ 48848 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about if, in fact, the conversion is part of a scheme to defraud millions of people in a foreign country because it will be viewed as a signal that they should mail their life savings into a particular account in Switzerland? Can he convert then?
05-996 +++$+++ 48849 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The statute is plain, Your Honor.
05-996 +++$+++ 48850 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You say yes on that?
05-996 +++$+++ 48851 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would say yes.
05-996 +++$+++ 48852 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even though it's going to bilk people out of millions of dollars?
05-996 +++$+++ 48853 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that the statute is plain and says that the debtor may convert.
05-996 +++$+++ 48854 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No matter what? Even if he's dead, even if he's insane?
05-996 +++$+++ 48855 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Even if he's insane. Official
05-996 +++$+++ 48856 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well alright, then I can't get anywhere with my hypotheticals. (Laughter.)
05-996 +++$+++ 48857 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I would have thought the answer was no, but there we are.
05-996 +++$+++ 48858 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Baker, couldn't the -- let's say the conversion goes through. The first thing that the bankruptcy court does in the Chapter 7 converted to Chapter 13 is say: I'm going to dismiss this suit, the -- the bad faith taint stays with the case, it doesn't get -- you can't erase it; and so back you go to the Chapter 7. Why couldn't the bankruptcy court now sitting as a Chapter 13 court say: We're not going to let a debtor who has conducted himself in bad faith proceed in this court?
05-996 +++$+++ 48859 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The bankruptcy court could certainly do that. The procedural safeguards of due process require, obviously, notice and hearing of the court's reasons for wanting to say that.
05-996 +++$+++ 48860 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but your claim doesn't rest on a due process denial of hearing does it? That's not, that's not the question you brought to us. So it seems to me that Justice Ginsburg's question is not answered by saying, well, he'd get a hearing in that case. The fact remains that in that case the, as I Official understand it, the judge in Chapter 13 could immediately deconvert to Chapter 7, couldn't he?
05-996 +++$+++ 48861 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I wouldn't say he could immediately reconvert. Again, there is the due process requirement that the debtor have an opportunity to be heard on the issue.
05-996 +++$+++ 48862 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But due process is not the issue here. The fact is the bankruptcy court could deconvert or reconvert to Chapter 7, in effect, following the election that the debtor makes. That's so, isn't it?
05-996 +++$+++ 48863 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
05-996 +++$+++ 48864 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well then, why would we have a system as ridiculous as to preclude the court from looking at fraud or bad faith at the moment of election, go through the paperwork and the folderol of converting to 13, and immediately turn around, admittedly having the power, to deconvert? That would be a rather foolish system.
05-996 +++$+++ 48865 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, perhaps, but it is the system that Congress has given us. Congress has said the debtor may convert at any time so long as it has not been converted previously.
05-996 +++$+++ 48866 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ When cases are reconverted to Chapter 7, is that typically done before Official or after the filing of the Chapter 13 plan?
05-996 +++$+++ 48867 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Most of the time, a plan is -- I don't do it this way, but most practitioners will file a plan at the same time as they file the notice, the motion to convert.
05-996 +++$+++ 48868 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But they don't have to.
05-996 +++$+++ 48869 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They don't have to.
05-996 +++$+++ 48870 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And the deconversion could be done prior to the filing of the plan?
05-996 +++$+++ 48871 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I suppose arguably it could. In my view, the statutory provisions of section 1307 have to be applied to the question of conversion. So I think --
05-996 +++$+++ 48872 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Creditors -- under Chapter 13 one of the prerequisites to approval of the plan is that the creditors get at least as much as they would have gotten under Chapter 7, right?
05-996 +++$+++ 48873 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
05-996 +++$+++ 48874 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So presumably the creditors might want to see what the Chapter 13 plan looks like themselves.
05-996 +++$+++ 48875 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly. Exactly. Exactly. And I think it's the Tenth Circuit Bankruptcy Appellate Panel noted that sometimes a problem debtor files a plan and gets it confirmed, pays creditors, and everybody winds up better off. Official
05-996 +++$+++ 48876 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Could the district court -- pardon me. Could the bankruptcy court make that same determination in deciding whether or not to allow the Chapter 7 proceeding to be converted? He could make this inquiry in a Chapter 7 proceeding? He says: I don't think you should be able to convert because there's a fraud, but I'll look at how the creditors come out. Could he do that? And then you don't have the specter that Justice Souter referred to of this transfer back and then the transfer back, which is a waste of time.
05-996 +++$+++ 48877 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, again, the statute says that the debtor may convert except in certain circumstances. I think that the requirement of a motion to convert a case gives the court the procedural mechanism for looking at the case, seeing, making sure that the debtor --
05-996 +++$+++ 48878 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But there is a difference, and this is -- assume with me, which apparently you don't agree, that everywhere in law there are implied exceptions for unusual circumstances. I have never found an instance where you couldn't think of some exception that they didn't see. You could not bring a thing if you were insane or dead or if a death would ensue or a murder. Assume that, all right. Official Then the question would be, well, what about this instance? And I think the strongest instance -- the strongest argument for saying there's is no exception here is the argument that the trustee discovers that this individual is behaving dishonestly, that he's hidden assets. Maybe he has a safe deposit box and he has a key and the key -- the key will allow him to get diamonds out of the safe deposit box and hide them. Under 7, the trustee has the key. As soon as you convert it to 13 the key is given back to the debtor, who has been shown dishonest. Now, assuming you're going to have some exceptions, why isn't that a very, very powerful one?
05-996 +++$+++ 48879 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because ultimately the Chapter 13 trustee has the same powers of the Chapter 7 trustee with the exception, as Your Honor is pointing out, of possession of the property in the bankruptcy estate. But that's how Congress wrote the statute. We should not ignore Congress's command about the process of converting and look for exceptions before we proceed to go back to the appellate court --
05-996 +++$+++ 48880 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If I could come back to a prior question. Unless there is some different procedure required when -- between the two situations of denial of conversion from 7 to 13 and allowing Official conversion but with immediate reconversion back to 7, unless there's some difference between that's required by the code in those two situations, maybe it is because you have to -- in the reconversion situation, you have to wait until the plan is filed. Maybe it's because the bad faith doesn't carry over. But unless there's some difference, I don't see what this case is about.
05-996 +++$+++ 48881 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, ultimately the case is about the language of the statute and whether the court should apply it as written. And I think --
05-996 +++$+++ 48882 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You can't provide any reason why there's a difference between those two?
05-996 +++$+++ 48883 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry?
05-996 +++$+++ 48884 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You deny -- do you dispute the fact that the bankruptcy court could simultaneously convert on the motion of the debtor from 7 to 13 and during the 20-day period that's required by the rule, the rules, reconvert? Do you dispute that, for bad faith?
05-996 +++$+++ 48885 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I dispute that the court could do it sua sponte and without notice and an opportunity for a hearing.
05-996 +++$+++ 48886 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If it gives notice and an opportunity for a hearing during the 20 day period -- Official you have to give 20 days notice before the conversion takes place; is that correct, from 7 to 13?
05-996 +++$+++ 48887 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that's correct. When you file a motion, a 20 day notice is required, yes.
05-996 +++$+++ 48888 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If it has the hearing during that period, you don't dispute that the court could do that, or do you?
05-996 +++$+++ 48889 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, again we come to the question of when the plan gets filed. The plan isn't filed until after it's converted, according to the rules.
05-996 +++$+++ 48890 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But here there was a hearing on the motion to convert, right? There was a hearing?
05-996 +++$+++ 48891 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-996 +++$+++ 48892 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And as I understand it, there was no objection to the character of that hearing? There was no request for an evidentiary hearing? So there was a hearing. Now, does that get wiped out too, just the way, the determination that you couldn't convert?
05-996 +++$+++ 48893 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The procedure I would, I would expect to see is that if the court saw an issue of fact with respect to whether the case had been converted or whether the debtor was eligible for it to be a debtor in Official the chapter to which he seeks conversion, then an evidentiary hearing would be required. If -- the fact that there was no evidentiary hearing in the particular case here, I think, I think we have to go back to recognize the fact that most issues in bankruptcy court are decided summarily on motion practice. And it is my feeling that, the jurisprudence of rule 56 has to apply. If a court sees that there are disputed issues of fact, the court must schedule an evidentiary hearing. It cannot, it cannot simply grant summary judgment without furtherance issue of fact. So this is why I say that, that on these two -- the two particular points -- and obviously, the question of whether it has been previously converted is very easy to determine. But as previously discussed, the issue of eligibility, whether the claims and the debt is within the statutory limitation, is an issue of fact that ultimately might require an evidentiary hearing.
05-996 +++$+++ 48894 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But your case as I understand it, your case does not turn on the question whether there was or was not, should or should not have been a hearing in this case, an evidentiary hearing in this case; is that correct? Official
05-996 +++$+++ 48895 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. That's correct, because in our view the schedules -- excuse me -- in our view the schedules in this case clearly indicate that it -- that he was within the statutory limitations, at least as far as the schedules go.
05-996 +++$+++ 48896 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. -- Mr. Baker, I have -- I have a question on a matter that really upsets me and causes me to wonder how, you know, how much we can rely upon your description here. You claimed in the petition that the reason your client filed under Chapter 7 rather than 13 was that he was unemployed at the time. And that he decided to go to 13 after he became employed. Yet, on -- as shown in the supplemental appendix, when he filed under Chapter 7, under penalty of perjury, he said that he was employed, and at the meeting of the creditors, he confirmed under oath that he was employed. What was it? Was he employed or not employed?
05-996 +++$+++ 48897 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ On the petition date itself, he was not. And if you look at schedule I, which is at page 30 of the supplemental joint appendix, at the bottom line, bottom of the -- and it indicates that he was in the process of having a second tenant in his Official rental property and that he was beginning a job at about the time the petition --
05-996 +++$+++ 48898 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It says employment, occupation, name of employer: Capital Carpet and Flooring. How long employed, five months. Address of employment: Woburn, Massachusetts. It also says the same thing on page 18 of the supplemental appendix. And also with the meeting of creditors. If you look at the joint appendix at 64a, he says the same thing that he was employed. Was he employed or not employed?
05-996 +++$+++ 48899 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
05-996 +++$+++ 48900 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does he go around swearing he was when he wasn't?
05-996 +++$+++ 48901 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, he was -- he was not employed at the time. If you look at his page 18, as you point out, it says at the bottom the income given is estimated based on a new job which is about to start. He had -- he had been the principal of a company called RLM Flooring, which had been closed by Citizens Bank. So he was, in fact, unemployed because Citizens Bank had taken all of the assets of the corporation and shut it down. And this put him of course behind on his mortgage so he was very concerned about finding employment so he could in fact, keep -- get his mortgage current and then retain his home. Official
05-996 +++$+++ 48902 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Look on page 64a of the appendix, the meeting of creditors. Trustee says okay, and you now work for another entity, Capital Carpet and Flooring, sir? And Mark Marrama says yes.
05-996 +++$+++ 48903 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. And between the -- between the time of petition at the meeting of creditors which was approximately six -- six weeks later, he became employed. As I say, he had a mortgage. He had children to whom he has to pay child support. At the time he had a wife he owed a lot of money to. He was concerned about having employment so he could in fact meet those obligations.
05-996 +++$+++ 48904 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask, I may have missed some of the colloquy here -- is it correct that he would not be eligible to file a -- to have a, institute a Chapter 13 proceeding if he had unsecured debts of over a certain amount?
05-996 +++$+++ 48905 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
05-996 +++$+++ 48906 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And what if at the time he makes the motion to convert, which you say he has an absolute right to make, what if the record then disclosed that he had debts exceeding that amount? What should the bankruptcy judge do in that case?
05-996 +++$+++ 48907 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The bankruptcy judge should Official examine the claims that have been filed, if any, do the arithmetic, offer the debtor an opportunity --
05-996 +++$+++ 48908 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ He concludes they're over the amount? So it is clear under the record. What should he do then?
05-996 +++$+++ 48909 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He should deny conversion.
05-996 +++$+++ 48910 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ He should what?
05-996 +++$+++ 48911 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He should deny conversion. If in fact --
05-996 +++$+++ 48912 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So he does not have an absolute right in all cases to convert, then.
05-996 +++$+++ 48913 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's absolute except in the two circumstances stated in the statute. One of which, is as Your Honor is pointing out, the eligibility, the other is that if it has been previously converted he does not have that right. If the Court has no further questions, I'll reserve my remaining time.
05-996 +++$+++ 48914 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Baker.
05-996 +++$+++ 48915 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
05-996 +++$+++ 48916 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Brunstad.
05-996 +++$+++ 48918 +++$+++ FALSE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it Official please the Court: The bankruptcy court need not sit idly by and grant a motion which is part of an abusive scheme. The power of the court is there to deny such a motion. It is there by statute under section 105; it is there because the courts have always had power.
05-996 +++$+++ 48919 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Under -- you think 105 is an affirmative grant of power?
05-996 +++$+++ 48920 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the second sentence of 105(a) supports the traditional powers that courts have had to grant relief, to prevent or to deny relief to prevent abuse or to remedy bad faith conduct. The fact that the debtor has the authorization under section 706 to convert a case cannot be construed to prevent the court from sua sponte taking action to prevent abuse --
05-996 +++$+++ 48921 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ 105(a) is much more limited than that. It is only if you take the second clause of that out of context and quote it, as has been done, that it looks like an affirmative grant. It says: "No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from taking sua sponte other action." That's a much more limited, narrow provision telling you not to imply a negative pregnant from a requirement that a particular party raise an issue. I -- as a Official source of sweeping powers to, to basically act as a roving commission in equity, I think that's a mis-citation.
05-996 +++$+++ 48922 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Chief Justice Roberts, I think that in order to understand 106(a), the second sentence, completely, I think it is important to understand it was added to 105 in 1986 in response to a number of decisions that were holding that the courts did not have the -- the bankruptcy courts did not have the authority to sua sponte take action to prevent abuse, to monitor their own calendars, to make sure that inappropriate things weren't happening, and that Senator Hatch when he introduced this legislation which was ultimately enacted, the goal was to overturn cases like the Second Circuit's decision in Grissom to provide expressly and perhaps not as clearly as perhaps they intended, to give the courts this power. But I --
05-996 +++$+++ 48923 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was that Second Circuit's decision a decision that said the court didn't have the power because it had not been moved to take that action by the party who had the responsibility for raising the issue? Was that the basis for the Second Circuit's decision?
05-996 +++$+++ 48924 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In part, yes. The court also -- Official
05-996 +++$+++ 48925 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then -- then you haven't contradicted what the Chief Justice suggested.
05-996 +++$+++ 48926 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think -- I think 105(a), the second sentence is worded the way that it is. It doesn't say exactly that the courts may take any action of sua sponte. It says shall not be construed; the fact that a party has the right to make an action shall not be construed to deny the court the right sua sponte to take an action. But I think that the implication of the statute is clear. There is this background principle which applies not only in bankruptcy cases but in trial court cases in the district courts everywhere, that this Court recognized in Chambers, that it has specific application in this Court's jurisprudence in bankruptcy in Pepper versus Litton and other cases, that the bankruptcy courts may take action to prevent abuse. And in fact, they must do so. Because by granting a motion, by sitting back and allowing the court to grant relief that furthers an abusive scheme in essence makes the court complicit in the fraud or misdealing. We can't have that.
05-996 +++$+++ 48927 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you do about the different structures, wording between 706(a) and 706(b)? I mean, this provision says debtor may. The other provisions say that a debtor may ask a court to order, and it suggests a difference in who has the Official primary responsibility, whether it is a motion of the Court or whether it is an independent action.
05-996 +++$+++ 48928 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, I think that the drafting conventions between the two subsections is key. 706(a) says the debtor may convert. Whereas other sections of the code, like 1307(b), other provisions, provide that upon request of the debtor, the court shall take some particular action. Here the use of the "May" -- I think the word "may" properly signals discretion in the court.
05-996 +++$+++ 48929 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you think under those other provisions the court doesn't have this inherent power or the implicit power from 105(a) that you're arguing for here?
05-996 +++$+++ 48930 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if you look at section 1307(b), upon request of the debtor the court shall dismiss the case, that is an absolute right. And for a clear reason. Nobody can force a debtor to continue in Chapter 13 against the debtor's will because Chapter 13 requires the debtor to work to pay off creditors. That would violate the 13th Amendment. So there would be no circumstance where someone could block a debtor from getting out from Chapter 13, for constitutional reasons. That's a special case. That is why Congress drafted 1307(b) the way that it did. Official Contrast that with section 706 where the court said the debtor may convert. Now, there are, there are requirements that the debtor has to comply in order to convert, statutory, but there is also, a debtor cannot have an absolute right to convert if it would be part of an abusive scheme. I think the direct analogy is this Court's decision in Pepper versus Litton. There a fraudulent party wanted the Court to allow a claim as part of a fraudulent scheme, and this Court unanimously said no we're not going to allow that, even though there was a subsequent remedy further on in the process.
05-996 +++$+++ 48931 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you, if given that the court has express statutory authority to reconvert from 13 back to 7, why should we take the leap of conferring inherent equitable authority to do something, when the statute addresses it in a much more specific way?
05-996 +++$+++ 48932 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Two primary reasons, Your Honor. The first reason is that it would be just pointless wheel spinning.
05-996 +++$+++ 48933 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, maybe, maybe not. I mean, they convert. He comes up with a plan under 13 that looks better to creditors. I mean, just because there's fraud that offends the court and prompts it to take action prior to conversion doesn't mean that Official that's going to be the same situation after conversion.
05-996 +++$+++ 48934 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the debtor could argue in the context of the motion to convert, well, I would like to propose a Chapter 13 plan, perhaps the misconduct wasn't that severe, and the court can take that into consideration allowing the debtor to proceed. But where as here you have a clear case of abuse, the court should be entitled to nip it in the bud at that particular point in time. Allowing the court to senselessly say, "Oh, go ahead and convert -- "
05-996 +++$+++ 48935 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even if it might injure the creditors.
05-996 +++$+++ 48936 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the court can take that into account. The court is not -- is not shackled under section 706 to deny conversion, it can consider various factors. If all the creditors were to come up and say: "We know the debtor has been abusing the bankruptcy system, but we think you should allow the conversion to a Chapter 13 case because perhaps that will work for the particular circumstances." But whereas here there was no such thing, the creditors were saying don't allow conversion, this is part of an abusive scheme. The trustee was saying don't allow conversion, this is part of an abusive scheme, the bankruptcy court -- if the court had signed the order, then that affects the Official integrity of the court. Is the court itself now not participating by allowing it to happen, this sort of fraudulent scheme? The court should be able to nip it in the bud. Debtors who are --
05-996 +++$+++ 48937 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What limitations would you recognize on this inherent authority to take action? Where do they come from?
05-996 +++$+++ 48938 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well I think that -- Mr. Chief Justice, I think that they're the same sorts of limitations that require the district court, when it is considering invocation of its inherent powers, whether to exercise them or not, we have always sort of recognized a special situation for bad faith conduct and clearly abusive schemes. Where those occur as in this case, the bankruptcy court looks at the circumstances, holds a hearing as was held this case, considers the views of the parties who are involved, and then decides. Now it is a relatively high bar. You know, bad faith -- it is a continuum. Where you have the honest but unfortunate debtor, abides by all the rules, clearly no bad faith implication would apply. At the other end of the spectrum where you have a debtor who conceals assets, doesn't disclose, it's found out in bankruptcy and then as soon as the trustee finds out and Official is hot on the debtor's trail, then seeks to convert to get out from bankruptcy, well, there you have a clear-cut case of abuse that can't be tolerated. Now I think that --
05-996 +++$+++ 48939 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Brunstad, are you going to address the mootness point? Do you think the case is moot?
05-996 +++$+++ 48940 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Scalia. I think candidly, the case is not moot. There is a good reason why we do not allow in our system two separate bankruptcy cases to be pending at the same time. Once a first bankruptcy case has started, the court jurisdiction attaches its exclusive jurisdiction, and I think the second bankruptcy case that was filed while the first bankruptcy case was still pending was filed without jurisdiction and there was actually no jurisdiction, because of the prior existing case. Additionally, I think we have to recognize that there were different debt levels at different times. I don't know exactly what they were, but for the first case there was debt level A. About three years later, there was debt level B, which may well have been higher. On remand if the debtor were to succeed, which I hope the Court does not allow the debtor to proceed, or succeed here, but on remand if it were determined Official that with the first case the debt levels were properly below the limits under 109(e), then the debtor would be eligible to convert as far as that criteria is concerned. We do not know absolutely that that would not be able to be satisfied in the existing case.
05-996 +++$+++ 48941 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did you make the jurisdictional objection before the second bankruptcy court?
05-996 +++$+++ 48942 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We did not participate in the second case and make that objection, Your Honor.
05-996 +++$+++ 48943 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How so?
05-996 +++$+++ 48944 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that it was primarily, it was, the debtor was litigating and we did not make the jurisdictional argument.
05-996 +++$+++ 48945 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I find that extraordinary.
05-996 +++$+++ 48946 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So it wouldn't be before the First Circuit.
05-996 +++$+++ 48947 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That particular issue, I think the appeal of the second case is pending before the district court. I think that the bankruptcy judge disposed of the case pretty summarily and decided that while this particular debtor, just looking at the schedules, does not have the eligibility requirements for the second case, and therefore dismissed it. That does not necessarily preclude a finding Official upon the facts in the first case which is still pending, that it could be converted. I think candidly, I need to say that.
05-996 +++$+++ 48948 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's hardly a summary disposition. The opinion goes on for pages and pages.
05-996 +++$+++ 48949 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, this particular bankruptcy judge obviously had a lot of experience with this particular debtor, having presided over the first case as well, Justice Ginsburg. So I think the bankruptcy court was very fully apprised of the facts and circumstances surrounding the case, with the record and having written several opinions already in the first bankruptcy case which was still pending.
05-996 +++$+++ 48950 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This case, your case?
05-996 +++$+++ 48951 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The current case today, yes, Justice Scalia.
05-996 +++$+++ 48952 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask this question. If the remedy of not allowing them to convert to Chapter 13 is denied, are there other remedies that the bankruptcy court can impose against the debtor who engages in misconduct of this kind?
05-996 +++$+++ 48953 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Stevens, but they're not tailored to this particular problem or abuse. They are remedies, for example, the denial of the discharge for concealing assets under section 727. Official But that won't --
05-996 +++$+++ 48954 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are there any criminal sanctions?
05-996 +++$+++ 48955 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There might be criminal sanctions for willful -- basically, in essence, it's sort of an idea of theft, you know, by not disclosing assets, but it's a relatively high bar for criminality. But that won't protect the creditors in the Chapter 7 case.
05-996 +++$+++ 48956 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Then how are the creditors hurt by this series of events?
05-996 +++$+++ 48957 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the creditors are hurt because in the chapter 7 case, once the bankruptcy case is filed, the trustee takes possession of all the debtor's property, which becomes property of the estate. The trustee's role is to liquidate the property and distribute the proceeds to creditors. When the case is converted to Chapter 13, under 1306, the property revests in the debtor, including any concealed property. At that point, under section 348, upon conversion, the Chapter 7 trustee is disenfranchised. His services terminate. What debtors in bankruptcy who are perpetuating this kind of concealment scheme want you to do is say oh no, you can go ahead and convert, and then maybe we'll deal with it later, because maybe later on Official in the proceedings something will happen. The Chapter 13 trustee might not be apprised of it. The case might go to a different bankruptcy judge. In some jurisdictions, the Chapter 13 docket is heard by an entirely separate bankruptcy judge. They would like to get the benefit of delay in conversion, because perhaps they can get away with it in the subsequent Chapter 13 case. Or alternatively in the Chapter 13 case, if the debtor doesn't file a plan, then the Chapter 13 trustee, who may have hundreds and hundreds of Chapter 13 cases he or she is responsible for, on a check list might simply check off no plan filed, case dismissed, in which case the creditors don't get the benefit of the liquidation, they don't get the benefit of the assets being recovered, they don't get equality of distribution under the Chapter 7 scheme, and the debtor's fraud is in essence gotten away with. So that is why, when a motion to convert comes up and the bankruptcy court sees --
05-996 +++$+++ 48958 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Wouldn't a Chapter 7 case be refiled immediately?
05-996 +++$+++ 48959 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not necessarily, Your Honor. Not necessarily. The debtor could move to another jurisdiction.
05-996 +++$+++ 48960 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But the creditors aren't Official going to let him just run away with the assets, are they?
05-996 +++$+++ 48961 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Stevens, in many many Chapter 7 cases, in many many bankruptcy cases, you have creditors, most of the creditors may hold claims of $500, $1,000, $3,000. This case is unique because there happened to be a creditor, Citizens Bank, who was owed hundreds of thousands of dollars who had an interest in pursuing the case. In many other cases -- that's why -- one of the reasons why we have a Chapter 7 trustee, to represent the interest of myriad small claimants who collectively have no individual incentive to really incur all the costs to monitor the system. By converting the case from 7 to 13, disenfranchising that representative of all the creditors, the debtor who wants to play the game of concealing the assets, and catch me if you can, can in essence get away with it. This bankruptcy judge understood this. This bankruptcy judge denied the conversion so we would keep the case in Chapter 7, the Chapter 7 trustee could do his job, collect the assets --
05-996 +++$+++ 48962 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Could the Chapter 7 trustee be appointed the trustee in the Chapter 13, the same trustee who has now been -- he's terminated because Official the Chapter 7 has been converted. Could the court in the Chapter 13 format appoint the same trustee?
05-996 +++$+++ 48963 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Ginsburg. There is a standing Chapter 13 trustee in Chapter 13 cases that handles all the Chapter 13 cases, unless for some reason that Chapter 13 trustee must recuse him or herself. Under section 348, once the case is converted from 7 to 13, the Chapter 7 trustee services are terminated.
05-996 +++$+++ 48964 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What does the trustee do? He's not really a trustee under 13, is he?
05-996 +++$+++ 48965 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Chapter 13 trustee --
05-996 +++$+++ 48966 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, the property doesn't vest in him, you've told it. It remains in the ownership of the debtor?
05-996 +++$+++ 48967 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Scalia. The Chapter 13 trustee is probably characterized mostly an administrative person, who supervises to see that the Chapter 13 procedures are complied with, has the debtor filed the Chapter 13 plan. If not --
05-996 +++$+++ 48968 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He's called a trustee, though?
05-996 +++$+++ 48969 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct, Justice Scalia.
05-996 +++$+++ 48970 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well that's really not his capacity. Official
05-996 +++$+++ 48971 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In practical reality, that's correct, Justice Scalia. What the Chapter 13 trustee does is, if a plan is not filed, moves to dismiss the case. If a plan is filed, may look at the plan. If the plan is confirmed, acts as the disbursing agent. The debtor typically makes payments under the plan to the Chapter 13 trustee. The Chapter 13 trustee then makes distributions to creditors. And on Chapter 13 day in many jurisdictions, one day a week or every other week, the Chapter 13 trustee will come to court with hundreds and hundreds and hundreds of files.
05-996 +++$+++ 48972 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's called Chapter 13 day?
05-996 +++$+++ 48973 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In many places it is, Your Honor, and they have a Chapter 13 bankruptcy judge. Often it's assigned to the most junior bankruptcy judge sitting in the particular jurisdiction. With hundreds and hundreds of cases, the Chapter 13 trustee has neither the incentive nor the resources to do the things that a Chapter 7 trustee does every single day. And not only that, the Chapter 13 trustee does not have the power to go after collecting all of the property and liquidating it. It's denied that power under the statutory scheme. So it makes no sense. It's pointless to say we must -- the bankruptcy judge must idly sit by, grant Official a motion that's part of this abusive scheme, allow the case to be converted to Chapter 13, hold another hearing, have a second set of papers perhaps, only to send the case back to Chapter 7.
05-996 +++$+++ 48974 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The sense it makes is that that's what the statute provides, and rather than relying on this alleged inherent power that apparently is not boundless, and that the bounds of which will have to be articulated in case after case after case, the statute provides a very clear mechanism to address the issue of fraud which allows him to reconvert it back to Chapter 7 promptly.
05-996 +++$+++ 48975 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think, Mr. Chief Justice, in the Link case, the Court rejected that argument in construing section 41(b), where the Court said, quote, "neither the permissive language of the rule, which merely authorizes a motion by the defendant, nor its policy requires us to conclude that it was the purpose of the rule to be abrogate the power of courts acting on their own initiative to clear their calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief." Likewise in Chambers, I think the same principle applied. The Court said, we don't need to wait and deal with these subsequently occurring procedures to remedy Official the problem. We should do it now. And that is the -- that is the clear import of this Court's unanimous decision in Pepper versus Litton. There was a remedy of equitable subordination for the fraudulent claim that could have been invoked far later in the proceeding. And this Court unanimously said no, you don't have to wait for that proceeding later. Where it's clear that there has been fraud, the creditor's scheme has been fraudulent, a fraudulent claim, the court can act at the time of allowance of the claim and simply deny the claim. The reason for it, I think, is the reason articulated in Chambers. The integrity of the court itself is implicated if it has to sit back idly by and watch the abusive process unfold.
05-996 +++$+++ 48976 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I still haven't gotten an answer, I think, on what the prejudice is. Who is prejudiced by the procedure set forth in the statute? The conversion takes place. The judge then says, because of this fraud, I'm going to reconvert it to Chapter 7. Who suffers under that? You say sit idly by, but I don't see the long passage of time.
05-996 +++$+++ 48977 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the creditors suffer, Mr. Chief Justice. And they suffer because there are additional administrative costs that are incurred that compete with their distributions. We're already talking Official about dividing up an inadequate pie to satisfy all claims in full. Having a second set of procedures prejudices the creditors. It prejudices the court. Bankruptcy judges can have thousands and thousands of cases on their dockets. To have to have a second set of procedures, a second hearing, it burdens the court unnecessarily. And again, it also implicates, again, and I think this is fundamental, the integrity of the process.
05-996 +++$+++ 48978 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is it true or not what I said, because I don't know the area, that if in fact you had a dishonest debtor, the present -- the proceeding is dismissed on 7. He gets the papers back. The papers permit him access to a hidden source of resources, and he steals them basically. Is that possible or is that fanciful?
05-996 +++$+++ 48979 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, that is certainly possible, and I think that is why Congress has said you don't have an absolute right as a debtor under section 707 to dismiss your Chapter 7 case.
05-996 +++$+++ 48980 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel.
05-996 +++$+++ 48981 +++$+++ TRUE +++$+++ MR. BRUNSTAD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
05-996 +++$+++ 48982 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We'll hear from Ms. Blatt first.
05-996 +++$+++ 48983 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I beg your pardon. Official
05-996 +++$+++ 48984 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ms. Blatt.
05-996 +++$+++ 48986 +++$+++ FALSE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: A bankruptcy court has the inherent authority to sanction a debtor who has acted in bad faith by denying his request to convert a Chapter 7 case to Chapter 13. Courts have the inherent authority to take appropriate action to prevent an abuse of process. Nothing in the Bankruptcy Code or section 706 purports to impair or limit the bankruptcy court's power to police the integrity of its own proceedings.
05-996 +++$+++ 48987 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why isn't the power to reconvert sufficient?
05-996 +++$+++ 48988 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The power to reconvert under section 1307(c) is in this case, where the court is already confronted with an adjudicated bad faith litigator, it's indirect, it's inefficient, and it's inadequate to protect the bankruptcy process. The potential for abuse is very significant if the case languishes in Chapter 13 for any period of time because the bad faith debtor gets control over the very asset he fraudulently sought to conceal. Official
05-996 +++$+++ 48989 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what are the odds that that's going to happen if you have a judge who's exercised enough by the fraud to exercise inherent authority to deny relief? He's not going to let it languish under Chapter 13.
05-996 +++$+++ 48990 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, he may or may not. Bankruptcy courts have thousands of cases, and if there is an absolute automatic right to convert, a court with thousands of cases may put off that Chapter 13 reconversion to another day. Moreover, there may be individual creditors without a sufficient stake to raise the issue, and the Chapter 7 trustee who typically will uncover the fraud cannot oppose conversion if there's a right to convert in bad faith, and the Chapter 13 trustee or the United States --
05-996 +++$+++ 48991 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why wouldn't that trustee recommend to the bankruptcy judge that he reconvert it to Chapter 7?
05-996 +++$+++ 48992 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the Chapter 7 trustee is, he's terminated on conversion. It doesn't raise Chapter 13 issues. The much more likely scenario is the Chapter 7 trustee will tell the United States trustee or the Chapter 13 trustee, but they may or may not learn about it until after the case converts. In jurisdictions where there is -- Official
05-996 +++$+++ 48993 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why can't they just have an order to the bankrupt -- to disclose the asset in the Chapter 13 proceeding?
05-996 +++$+++ 48994 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ An order to disclose the asset?
05-996 +++$+++ 48995 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In the Chapter 13 proceeding.
05-996 +++$+++ 48996 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we're talking about a case the court may or may not know about the fraud, and the trustee may or may not tell someone in time. If there's --
05-996 +++$+++ 48997 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, in this case they knew about it, didn't they?
05-996 +++$+++ 48998 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, and there was a basis to oppose conversion. In jurisdictions where there's an absolute right, and bad faith is not a grounds for the conversion --
05-996 +++$+++ 48999 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Whenever he denies the motion, he must know about it. He must have a reason to deny.
05-996 +++$+++ 49000 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We're by hypothesis talking about an absolute right to convert, and what I'm trying to say, in jurisdictions where there is an absolute right, the practice of bankruptcy courts is not to simultaneously convert. It does happen on occasion, but the more likely scenario is that a significant period of Official time passes. But the other point is that if there's a simultaneous conversion it's a completely pointless and burdensome process, and here's why: A conversion and simultaneous conversion causes the termination and reappointment of the Chapter 7 trustee, the appointment and the immediate termination of the Chapter 13 trustee, and to the extent there's already pending Chapter 7 proceedings for dismissal or denial of discharge, the conversion would appear to us to moot those proceedings and require their reinstatement. And this is a completely unnecessary waste of everyone's time and energy.
05-996 +++$+++ 49001 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I just clear up one detail that's confusing to me. The -- are there two judges? Does the same judge rule on both the motion to convert and the motion to reconvert?
05-996 +++$+++ 49002 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, in the majority of jurisdictions. There are one or two jurisdictions where there are different judges, but the vast majority it's before the same judge. But a -- if a -- if there's a -- if there's a right to convert in bad faith, all you have is a notice of conversion and, assuming the eligibility is met and it hasn't previously converted, a court may say, well --
05-996 +++$+++ 49003 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I wouldn't call it a right to convert in bad faith. If it's a right, it's a Official right to convert despite the allegation of bad faith. It's not a right to convert in bad faith. No one is arguing for that.
05-996 +++$+++ 49004 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that our point is that the absence of bad faith is implicit in the statute because there is this background rule. When a litigant comes to a court that's already abused the court's process or seeks relief of bad faith, it is a core element of a court's inherent authority to simply deny relief. You can toss out an entire complaint when a litigant seeks it in bad faith. If there was an apparent benefit to this, go to 13 first or deny it, the United States trustee wouldn't be here. We see no benefit to the debtor to require the court to convert and then reconvert. All it is is an unnecessary waste of everyone's time, and this is a core element of an inherit authority.
05-996 +++$+++ 49005 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about the idea that the debtor can come in and say under 13, look, whether the facts bear this out in this case or not, I've got a job now. I can pay off my debtors -- my creditors according to this plan, and, as the statute requires, the creditors get more under 13 than under under 7. That's a benefit to everybody.
05-996 +++$+++ 49006 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Here's why. I don't think Official there's any dispute under --
05-996 +++$+++ 49007 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And he says, I'm sorry about that bad faith business.
05-996 +++$+++ 49008 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure. Right. And there's nothing to stop a debtor who truly converts and has found religion and wants to come clean for arguing: Let me convert, it's in the interest of everybody if I do convert. This is a discretionary right to deny relief. The court is free to allow conversion. But under the plain terms of section 1370(c), the court has the power to dismiss or reconvert a case to Chapter 7 without waiting for a plan to be filed. There's no requirement that the court has to sit there for 15 days and see if there's a plan. A Chapter 7 -- excuse me --
05-996 +++$+++ 49009 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If the statute didn't provide that a Chapter 13 plan could be reconverted to a Chapter 7, would the court have the inherent equitable authority to do that?
05-996 +++$+++ 49010 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To reconvert to Chapter 7?
05-996 +++$+++ 49011 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Sure.
05-996 +++$+++ 49012 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't know if that would be an appropriate remedy. It might be because you can have an involuntary Chapter 7 case. But on this point about a court sitting in Chapter 13, if on day one a Chapter 13 Official debtor files a plan in bad faith, the debtor can say: Please wait, I've got a plan, I'm working on it, give me a couple extra weeks, and the court can say: No, I have the authority to throw it out. And what's particularly odd about this proposal is that in 2005 a court is categorically prohibited from allowing a Chapter 13 debtor to proceed under Chapter 13 if the petition is filed in bad faith. The court can't confirm a plan. So Congress had no interest in protecting bad faith debtors after 2005 and they didn't before 2005. There's no policy preference in the code for bad faith debtors or allowing a debtor either proceeding in Chapter 13 or moving from Chapter 7 to Chapter 13, and we think this is a modest exercise of a court's inherent authority simply to deny relief when the court is already confronted with a clear case of abuse while the case is in Chapter 7 or the debtor has otherwise abused the bankruptcy process. The last thing I'd like to say is --
05-996 +++$+++ 49013 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what about the difference in language under 706(a) and the other provisions? 706(a) says the debtor may. The other provisions call for action by the court, which suggests at least that the authority to convert is greater under 706(a). Official
05-996 +++$+++ 49014 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think section 706(a) is fairly read as granting a statutory right to convert absent the two statutory exceptions or the court's proper exercise of inherent authority. But the 706(b) and (c) just explain that the court may do something or the court may not, or the court shall do something. So we think our position -- section 706(a) isn't even addressed to the court at all. It just gives the debtor the right to convert, and it doesn't purport to limit or speak to the situation when the debtor seeks that relief in bad faith or has otherwise abused the bankruptcy process. And I'd just like to end by saying that a debtor's bad faith concealment of assets or misrepresentation of financial affairs is really the most serious abuse you can have in a chapter 7 case. It threatens the very structural foundation of the code and its integrity.
05-996 +++$+++ 49015 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does the government have any position on the mootness question here?
05-996 +++$+++ 49016 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, our position is that it's not moot because it's on appeal. If that decision is affirmed, it would in a sense practically be moot because there would be an alternative grounds and the debtor wouldn't be eligible under Chapter 13 in any event. But we didn't see that as necessarily an Article III mootness problem. Official
05-996 +++$+++ 49017 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I guess I've been assuming -- but the eligibility under Chapter 13 even under the present case is a present day question, right? In other words, we don't go back and see if he was eligible for Chapter 13 when the conversion was denied? The question would be whether he's eligible now?
05-996 +++$+++ 49018 +++$+++ TRUE +++$+++ MS. BLATT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We have not compared the two, the two chapters -- well, there was never a Chapter 13 petition. We have not compared the Chapter 7 petition with the -- after this case, this Court granted certiorari, then the Chapter 13. But it is on appeal to the district court, so it's not presently moot. We would ask for those reasons that the First Circuit's decision be affirmed.
05-996 +++$+++ 49019 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Blatt. Now, Mr. Baker.
05-996 +++$+++ 49021 +++$+++ FALSE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor and Mr. Chief Justice.
05-996 +++$+++ 49022 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm sorry. You have two minutes remaining.
05-996 +++$+++ 49023 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. The first thing I would like to say is that, Official having been counsel to a Chapter 13 trustee many years ago, I can assure the Court the Chapter 13 trustees exercise all of the powers and authority that a Chapter 7 trustee does, with the exception, as was said, of possession of property of the estate. The property of the estate remains vested, however, in the Chapter 13 trustee throughout the length of the case. It does not revest in the debtor until the case is either dismissed, a discharge is issued, and the case is closed. So the concerns about leaving a debtor to do anything it wants to with property of the bankruptcy estate simply is not a reality, and I think it does a disservice to the many fine Chapter 13 trustees that there are around the country.
05-996 +++$+++ 49024 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm not sure I understood what you just said. You said until the plan is filed and approved the property remains in the possession of the Chapter 13 trustee.
05-996 +++$+++ 49025 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it does not remain in her possession. The Chapter 13 trustee technically never has possession. The title remains vested in the Chapter 13 trustee.
05-996 +++$+++ 49026 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So is it possible if it's in 13 that then the debtor, let's say a dishonest debtor, could get back pieces of paper which would admit Official that debtor to the possession of certain property which he could then take and hide in a way that that couldn't happen in 7? Is that possible or not possible?
05-996 +++$+++ 49027 +++$+++ TRUE +++$+++ MR. BAKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's certainly possible. But then again, there are statutory and rule-based remedies for that sort of activity. And our position is that those rules and those statutes are what should control in the case. Thank you very much, Your Honor.
05-996 +++$+++ 49028 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Baker. The case is submitted.
05-998 +++$+++ 49032 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first this morning in United States versus Resendiz-Ponce. Mr. Dreeben.
05-998 +++$+++ 49034 +++$+++ FALSE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: In Neder versus United States, this Court held that the omission of an offense element from petit jury instructions can be harmless error, even though that omission violates the Sixth Amendment right to a jury trial. Our submission is that the same analysis applies to the omission of an offense element from a grand jury's indictment. Such an error violates the Fifth Amendment, but it is harmless when the petit jury, having been properly instructed on all of the elements of the offense, returns a verdict of guilty beyond a reasonable doubt.
05-998 +++$+++ 49035 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm not quite sure if this works, but at the trial before a petit jury there's an opportunity for counsel to object. There isn't an opportunity to object when the grand jury indictment Official comes down. Now, I guess you could move to quash.
05-998 +++$+++ 49036 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Justice Kennedy. In fact, parties do move to dismiss indictments for failure to allege all of the elements of the offense. That happened here. The motion was erroneously denied by the trial judge. The trial judge, under Ninth Circuit law, under the assumption that the Ninth Circuit has properly interpreted the law, should have concluded that this indictment failed to allege the substantial step that was part of the attempt. And if the judge had done that, then the Government would have gotten back to the grand jury and obtained a superseding indictment. Instead what the judge did was deny the motion, finding that the indictment itself was sufficient, and then instructed the jury on all of the elements that the Ninth Circuit requires as part of this offense. And so we have now a petit jury verdict beyond a reasonable doubt finding that the attempt did involve a substantial step towards the completion of the offense.
05-998 +++$+++ 49037 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't the problem that the motion to quash is going to be made, if counsel is on his toes, is going to be made at the beginning of the trial? And we want to induce the court to look very Official carefully at it at that point, because if the court is wrong, somebody has to go through an entire trial as a result of it. And the way to induce the court to be very careful at the beginning is to say, this is not harmless error, and you've got to take this very seriously and you can't take any chance on the, in effect, the evidence saving you in harmless error analysis later.
05-998 +++$+++ 49038 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first of all, Justice Souter, motions like this are typically made long in advance of trial, as this one was. Waiting until the day of trial is far from the optimum practice.
05-998 +++$+++ 49039 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I'm sure that's right. But that simply reinforces my point.
05-998 +++$+++ 49040 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think what it reinforces is that the judge has enough time to look at it and conscientiously attempt to get the law right without the need for the court to apply the heavy hand of automatic reversal.
05-998 +++$+++ 49041 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you concede that the error would always be harmless if you have a trial before a petit jury, and all of the elements are instructed to be found by the jury?
05-998 +++$+++ 49042 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Ginsburg, that is our position. Official
05-998 +++$+++ 49043 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That doesn't necessarily make sense. You can imagine a situation where the probable cause and the eventual evidence that supports guilt is adduced after the indictment and the prosecutor says, you know, we're going to find that evidence once we get into it, we don't have it now, but indict anyway without it. In other words, what's your response to the situation where there's no probable cause on an element at the time of the indictment, but that evidence is later adduced and is a sufficient basis to convict?
05-998 +++$+++ 49044 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My response, Mr. Chief Justice, is the same response that this Court gave in United States versus Mechanik, where it was confronted with an analogous problem. And that was in that case, a violation of the rule that allowed two witnesses to testify at the same time before the grand jury. And the Court was specifically confronted with the question: Was this harmless error because the petit jury has now found guilt beyond a reasonable doubt? And it answered that question yes. And en route to that answer, it said, we could logically be persuaded that what we're supposed to do is compare the evidence in front of the grand jury to the error and see whether the error was prejudicially consequential for the grand Official jury's decision. But we're not going to do that, the Court explicitly said in Mechanik, because once there is a finding of beyond a reasonable doubt, the question of probable cause is shown a fortiori and --
05-998 +++$+++ 49045 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Excuse me, you mean you can never decide this question until after the trial is completed and you see whether the jury convicts beyond a reasonable doubt?
05-998 +++$+++ 49046 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Scalia, the district court should decide this question in advance of trial when it's properly raised and, if the indictment is defective, dismiss it. And this Court has recognized that trial judges don't need incentives of an automatic reversal rule to get them to comply with the law. And I want to amend --
05-998 +++$+++ 49047 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Did the U.S. Attorney in this case oppose the motion to quash the indictment?
05-998 +++$+++ 49048 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In this case?
05-998 +++$+++ 49049 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes.
05-998 +++$+++ 49050 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. And the Ninth Circuit's ruling that this indictment was defective was really -- bolt out-of-the-blue might be too strong. But it was an extension of its prior precedents in a way that wasn't directly foreseeable. The United States Attorney's office had every reason to believe, based on language in Official prior Ninth Circuit cases, that alleging an attempt to enter was adequate to allege the offense.
05-998 +++$+++ 49051 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Dreeben, this touches on what troubles me about this. I wonder whether we can answer the generic question that you presented, whether the omission of an element of a criminal offense from the indictment can constitute harmless error, without considering the nature of the alleged defect here. I don't know how you can answer -- if you look at whether the alleged defect here is susceptible to harmless error analysis, or whether if we were to agree with you, in fact, it is harmless, how you can answer those questions without reaching a conclusion about whether there was any defect in the indictment in the first place.
05-998 +++$+++ 49052 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Alito --
05-998 +++$+++ 49053 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it doesn't seem to me that there's any defect in this indictment. It charges -- it recites the language of the statute, it uses the word "attempt" which has a very well-settled meaning in the law. Any lawyer would understand exactly what is required for an attempt. It sets out the factual basis of the charge. So I don't know how you would get to the -- how you can answer the second question without getting into the first question. Official
05-998 +++$+++ 49054 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We did not challenge in our certiorari petition, which this Court granted, the Ninth Circuit's holding that in order for an attempt to be accomplished there needs to be a substantial step, and in an indictment under section 1326, there needs to be an allegation of what that substantial step is.
05-998 +++$+++ 49055 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I have the same problem. It's such a difficult requirement to get a hold of. I mean, he drives the car, he walks, he breathes. I mean, all of these things enable him to get into the country. I just don't understand the basis for the rule.
05-998 +++$+++ 49056 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it is common law --
05-998 +++$+++ 49057 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He wasn't forced to go over. He did it on his own. It seems to me that's --
05-998 +++$+++ 49058 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's certainly the Government's position, Justice Kennedy. But it is well settled in the common law that attempts require a substantial step towards the completion. There are variations that different jurisdictions use. That's the Model Penal Code formulation. The Ninth Circuit I think has gone beyond where some other courts have gone, as Justice Alito was noting, by saying that the indictment needs to spell out the factual basis for that substantial step.
05-998 +++$+++ 49059 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What would that be here? Official That he drove the car to the border? That he got out of the car? That he presented a document? What -- if you could do it over again, what would the indictment say?
05-998 +++$+++ 49060 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The indictment would have to say that he attempted to enter the United States and took a substantial step towards the completion of that crime, to wit he approached the border and came to the guard and presented false identifications to the guard and lied about his intended destination.
05-998 +++$+++ 49061 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If you went back to the -- if you went back to the very demanding nineteenth century criminal pleading laws, criminal pleading laws, they would say that where you use a legal term that has a well-0established meaning such as attempt, you don't need to spell out the definition of that, of that concept. It's enough to use the term. So what the Ninth Circuit has done is to resurrect, you know, to go back to something that's more demanding than would have been required in a nineteenth century indictment and frame that as a violation of the Fifth Amendment.
05-998 +++$+++ 49062 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Alito, I'm not going to defend what the Ninth Circuit did here, but I will be clear about the following: There is a generic legal issue at stake in this case that we face in the Ninth Circuit and in other courts around the country Official because indictments are not always written perfectly. And whether it's an element that the Ninth Circuit has improperly read into it or an element that a court has properly read into a statute, we do face the situation where --
05-998 +++$+++ 49063 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ As to the element, I thought that what the Ninth Circuit talked about was overt act. They didn't use the words "overt act."
05-998 +++$+++ 49064 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They did, Justice Breyer.
05-998 +++$+++ 49065 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, all right. I thought that comes out of conspiracy law; it doesn't even out of attempt law. Then I thought it's unlikely -- but here you can correct me. The U.S. Code is filled with the word "attempt." Just opening it at random, there are attempts to assault and steal mail matter, there are attempts to steal the mail matter, there are attempts to rob a bank, attempts here, attempts there. Is it the Government's practice whenever they charge a violation of any of these provisions to not just use the word "attempt," but to use the words "substantial step"?
05-998 +++$+++ 49066 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
05-998 +++$+++ 49067 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I would have thought the answer was no. And therefore, this isn't just a small error of a technical sort. The Ninth Circuit is Official completely wrong and not even close. And therefore, if they're not even close, can the Government come up here where there's an obvious error and they decide, the Government, that it would like to have a declaration by this Court on a matter that they think is quite interesting and important to them in a lot of other cases where they can't win the cases easily? That's, I'm putting it a little pejoratively because I'm trying to get you to see what I'm driving at. It's like a hoked-up case. Why not? I'm using it pejoratively only so that you can see what I'm worried about.
05-998 +++$+++ 49068 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We didn't really have a lot of choice about it. I mean, the Ninth Circuit decided to read the statute this way and it reversed the conviction. There's not a circuit split under section 1326. We have to bring thousands of indictments in the Ninth Circuit, so we're not exactly going to set up test cases to risk our convictions based on the Ninth Circuit's rule.
05-998 +++$+++ 49069 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you're making the concession only for purposes of this case. That is, in another case you would be free to say the word "attempt" is good enough; you don't have to spell out in the indictment a particular overt act. Official
05-998 +++$+++ 49070 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, it's not unusual for this Court to decide a case where the Government does not challenge the underlying constitutional ruling and make some remedial argument. Two very notable examples are United States versus Leon, where the Government did not challenge the underlying Fourth Amendment claim that was found to be valid by the lower court, but instead simply asked for a modification of the exclusionary rule; and another example is Rose versus Clark, which involves a fairly analogous issue to this one, whether it can be harmless error to fail to incorporate into the jury instructions the actual element and instead rely on a mandatory rebuttable presumption. In that case the State did not challenge whether the instruction violated the Constitution. This Court didn't decide it. Instead, what it decided was the remedial question of harmless error, which is an important question and I submit doesn't change in character depending on the nature of the underlying error.
05-998 +++$+++ 49071 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We've done it before, there's no doubt about it. But the better practice usually is to have a case in which the issue really presents the hard question. And you're asking us to make a ruling in this case that would govern failure to Official allege an aggravating circumstance in a death case, for example, which has a different atmosphere to the whole case when you're facing that kind of an issue.
05-998 +++$+++ 49072 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It may have a different atmosphere, but I don't think that it has any different legal analysis behind it.
05-998 +++$+++ 49073 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ A judge's reaction to a case is often affected by just exactly what's involved. And here it's just hard to see how anyone could claim any particular prejudice out of the error in this particular case or, really, it's arguable that there's no defect in the indictment at all because it was adequate notice to the defendant of what he's charged with. This is much like a case in the State systems where you have notice pleading. It doesn't seem very prejudicial. But you put it in a different context, you might have a different reaction to the case.
05-998 +++$+++ 49074 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think our fundamental submission here is that with respect to the probable cause determination, there is no prejudice because of the petit jury's verdict. With respect to notice, we would acknowledge that a defendant could argue that the defect in a grand jury indictment in a particular case could fail to give him adequate notice such that he Official might have a case-specific claim of prejudice and be able to overturn the conviction. On the facts of this case, I agree with you, Justice Stevens, that would not be a very strong argument. There really is no reason to think that there was any notice problem with this very discrete transaction which was alleged in the indictment as occurring on a particular date in a particular place.
05-998 +++$+++ 49075 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does this come up very often? I think the case -- the issue you want to raise, because I would think normally there's a motion before the trial, well before the jury is empanelled. The defendant says: I want you to dismiss this; the indictment's inadequate. And if that's even close, I would think normally the prosecutor would go back and say: Fine, I'll get a superseding indictment, and that would end the problem. And it seems to me so likely to happen that the chances of the judge wrongly ruling against the defendant and then it goes through a whole trial almost never happens.
05-998 +++$+++ 49076 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, I think that an empirical perspective might be helpful here. And I think an empirical perspective, if you look around the circuits and you see the number of issues, cases, in which this issue is raised, it becomes clear that there are a large number of situations in which mistakes get Official made. I mean, we're talking about a Federal system here in which 70 to 80,000 cases are indicted a year. Mistakes will happen, and they will happen both by the trial judge and by the prosecutor. And there will be situations in which the circuits change the law or the interpretation of the law after the decision in question. I think that this is a good example of that, where the Ninth Circuit extended its prior precedents to find that an indictment that didn't allege the overt act was inadequate. And then the Government is stuck, and the rule of automatic reversal, which the Court may appear to think in this case is particularly disproportionate since the indictment looks fine, functions identically even if there's a conceded violation that every member of the Court would say yes, there's a missing element here. The fundamental problem is that the grand jury sits to decide probable cause. It does not decide whether the defendant is actually guilty.
05-998 +++$+++ 49077 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it sits to decide whether people should be indicted, and yes, they're supposed to determine whether there's probable cause, but historically a significant role for the grand Official jury has been not to indict people even though the Government had the evidence to indict them.
05-998 +++$+++ 49078 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I actually do not agree that there's any stronger evidence, Mr. Chief Justice, that grand juries didn't indict when the Government had adequate evidence than there is historical evidence that petit juries did not convict when there's proof beyond a reasonable doubt. In both instances, you can point to historical instances in which grand juries and petit juries played a role of in effect nullifying when there was adequate evidence. But it's clear from the Neder decision that that history has not led to the conclusion that this Court cannot evaluate petit jury defects for harmlessness, and the same conclusion ought to be true a fortiori for the grand jury.
05-998 +++$+++ 49079 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The trouble with your a fortiori argument it seems to me is this: If we accept your argument, then whenever a judge is asked to rule on a motion to quash, if the judge is in any doubt, the judge is going to be induced by your rule to deny the motion to quash and wait and see what happens at trial. And if in fact they get to trial and they don't prove the element, then it can either be thrown out because an element has not been proven or he can go back and revive Official the motion to quash. If on the other hand the Government gets its act together at that point and does put in evidence on the element, it's going to be harmless error. And so the price of, it seems to me, of your rule is that someone will always be put to trial if there is any question about how the judge should rule on the motion to quash, whereas if we go the other way the judge will grant the motion to quash and the Government can go back to the grand jury and get another indictment. It seems to me that something is seriously lost in that situation if we go your way.
05-998 +++$+++ 49080 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Souter, experience doesn't show that, in fact, district courts don't grant these motions. They grant them, as Justice Breyer indicated, when the indictment is not sufficient.
05-998 +++$+++ 49081 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm sure they do grant them. But I'm concerned about the, we'll say, the doubtful case or the judge who can't make up his mind. Under your rule the price of that uncertainty is always going to be to subject somebody to trial.
05-998 +++$+++ 49082 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I do think we can assume that Article III judges are a hearty enough species so that they can make up their minds and they can rule. But to the extent that there is a risk here that judges Official might reserve the motion, that is the same risk that the Court fessed up to and acknowledged in the Mechanik case, where in fact the judge did reserve the motion.
05-998 +++$+++ 49083 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it seems to me that the prejudice to the defendant in the two -- as between the two situations simply is not comparable. In Mechanik you had a situation in which two witnesses putting in whatever evidence they were putting in were in the jury room and, yes, one could influence the other, et cetera. Here, we're talking about a situation in which it may very well be that the defendant should never be put to trial at all. And your rule says if there's any question about it, put him to trial, judge.
05-998 +++$+++ 49084 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, given that this issue arises only when you have a petit jury verdict of guilty beyond a reasonable doubt, it seems overwhelmingly likely that any grand jury would have found probable cause.
05-998 +++$+++ 49085 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do we know -- do we have the grand jury transcripts, so do we know that, in fact, evidence was put before the grand jury that false identifications were presented at the border?
05-998 +++$+++ 49086 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The grand jury transcript is not in this record, Justice Ginsburg, and we do not Official suggest that the Court adopt a rule in which it reviews the adequacy of the evidentiary showing before the grand jury. There are important values in grand jury secrecy. They will, of course, be compromised at the trial stage if witnesses testify and the testimony is turned over in that context. But more important than the practical aspect is exactly the logic that the Court used in Mechanik. The point of the grand jury indictment is to determine is there enough to take this person to trial. Once the person has been taken to trial and been found guilty beyond a reasonable doubt, we know that if the Government went back to the grand jury it would be able to get an indictment.
05-998 +++$+++ 49087 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How far would you go with the Mechanik logic? Suppose that someone is charged by information with a felony without the person's consent and for some reason the trial judge refuses to dismiss the information and then the person is convicted. Would you say that because the petit jury returned a verdict that the fact that the person was charged with a felony by information calls for no remedy?
05-998 +++$+++ 49088 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I would not go that far, Justice Alito. I would draw the same line that this Court drew in the Midland Asphalt case where it was Official looking at a somewhat analogous problem of an interlocutory appeal and the same line that it drew in Neder itself. In Neder the Court said if the judge directs a verdict of guilty, that's an impermissible act and it cannot be rendered harmless no matter how overwhelming the evidence is. In the Midland Asphalt case, this Court dealt with whether the language of the Fifth Amendment created a right not to be tried. And it does say "No person shall be held to answer absent an indictment issued by a grand jury," and the Court said if you have a defect that causes an indictment not to be an indictment or, as in your hypothetical, Justice Alito, no indictment at all, or if you have a defect that causes the grand jury not to be a grand jury, those are the kind of fundamental errors that would give rise to a right not to be tried such that you could take an appeal before trial, an interlocutory appeal. And I would submit that the same kind of principle would apply here.
05-998 +++$+++ 49089 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it's just a metaphysical inquiry, when is an indictment not an indictment? It's not some other standard of what's fundamentally unfair or, from the Sixth amendment, whether or not there's notice? Official
05-998 +++$+++ 49090 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm borrowing the language from the Midland Asphalt opinion, but I think that it was a poetic way of putting the point that if you don't have --
05-998 +++$+++ 49091 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You say poetic, I said metaphysical. When is an indictment not an indictment?
05-998 +++$+++ 49092 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ When you don't have one.
05-998 +++$+++ 49093 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now why would there be any difference then? That's a question I was about to put to you. What if there is no indictment at all? Why couldn't you say the same thing? Well, you know, the only purpose of getting it is to see if there was probable cause and you now have a conviction beyond a reasonable doubt.
05-998 +++$+++ 49094 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You could push the logic of that argument that far.
05-998 +++$+++ 49095 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't think it's pushing it, I think it's there.
05-998 +++$+++ 49096 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Just as in the Neder case, you could say that it would be harmless error if a judge directed a jury verdict when the evidence was overwhelming on all of the elements. But the Court did draw a distinction between those two situations. And I think that it's one that responds to a kind of common-sense view of how fundamental an intrusion is there. Official
05-998 +++$+++ 49097 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Doesn't an indictment have as its purpose in part to tell the defendant what crime he's being accused of committing? Isn't that -- so that's why I thought it would be quite clear, wouldn't it, or helpful to say that to the Ninth Circuit? And so an error is when it doesn't do that? And an error is when it leaves out an element, and he doesn't know what crime is being committed, he's accused of. So suppose you had an indictment that really did that. Now he doesn't know what crime he's accused of. And then you go to the trial and so forth and now we have to go into at what point did he work out what crime he was being accused of, rather hard to say.
05-998 +++$+++ 49098 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, chances are he did know what crime he was accused of.
05-998 +++$+++ 49099 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, yes, of course the chances are. But there's a possibility he didn't.
05-998 +++$+++ 49100 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And we submit --
05-998 +++$+++ 49101 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So if he didn't and therefore the indictment was faulty in that respect, then what? Are you going to say we have to track down -- I mean what it's reminding me of is like trying to say whether he got an adequate lawyer, didn't get an adequate lawyer, who knows, that kind of problem.
05-998 +++$+++ 49102 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it isn't quite like Official that, I hope, Justice Breyer. I mean, notice defects are very commonly alleged by defendants and courts know how to look for prejudice. They know how to say whether the defendant was denied an opportunity to prepare his defense or misled by the indictment in some fashion or another. And that's a very common case by case sort of prejudice inquiry that fits with the nature of the violation.
05-998 +++$+++ 49103 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- me until halfway through the trial that it was robbery I was being accused of because they left robbery out of the indictment.
05-998 +++$+++ 49104 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what you get are cases where there needs to be an effect on interstate commerce and it's not alleged and then the Government comes up with proof. I'm not saying that there is going to be a vast pool of cases in which defendants would validly be able to show prejudice from lack of notice; and that's because we do have many other means in the criminal justice system to alert the defendant to what he's facing. There's discovery, there's the opportunities for a bill of particulars to be filed. Those are the kinds of conventional harmless error inquiries that are appropriate when you have a claim that the indictment fails to give adequate notice. But what is not Official appropriate is for the Ninth Circuit to impose a rule on the Government and on the system of justice that says we will automatically reverse, because there are important values at stake here whenever a rule of automatic reversal is contemplated. And this was true in the Mickens versus Taylor case where the Court rejected a rule of automatic reversal when a judge didn't ask a question in response to an obvious conflict --
05-998 +++$+++ 49105 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm still not sure of your test. It's whether or not it's fundamentally unfair, whether or not there's notice, which sounds like more Sixth Amendment than Fifth. Or whether it's not an indictment, a rose is a rose type of thing.
05-998 +++$+++ 49106 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are two aspects to our rule, Justice Kennedy. The first is that to the extent that the claim of a defective indictment goes to the question of was there probable cause, that error and that constitutional value is not a basis for reversal once a petit jury has found guilt beyond a reasonable doubt on the same point. To the extent that the defect in the indictment goes to inadequate notice, a defendant can make such a claim post trial that the indictment prejudiced him because it was inadequately framed. But that should be done on a case-specific basis rather than Official on a rule of automatic reversal.
05-998 +++$+++ 49107 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Dreeben, if we disagree with you here, could this defendant be retried? Could he be reindicted?
05-998 +++$+++ 49108 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Scalia. I don't believe there would be any double jeopardy bar to reindicting him since he is the one who's challenged his conviction. I'd like to reserve the remainder of my time.
05-998 +++$+++ 49109 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Dreeben.
05-998 +++$+++ 49110 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
05-998 +++$+++ 49111 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Baggot.
05-998 +++$+++ 49113 +++$+++ FALSE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, if it please the Court: The structure created by the Constitution of this country provides a single means of charging a person with a Federal criminal offense. The intention of the framers of the Constitution was that a group of ordinary citizens would take time away from their families, their businesses, and their other concerns for the purpose of deciding whether the requirements of the Official Fifth Amendment have been met by a Government prosecutor, and in, in a few words, whether a trial should proceed. Or not.
05-998 +++$+++ 49114 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You could say the same thing about a petit jury. And in Neder we use the harmless error standard.
05-998 +++$+++ 49115 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, but the proceedings before a grand jury are secret. We never know what happened inside a grand jury. It's a closed door proceeding. It is an independent body. It is not subject to any appeals or reviews by the trial judge. The only thing that we know what happened behind those closed doors was the document that emerges, which is the indictment which becomes public knowledge. Nothing else is known about what happened in that jury room. Now, I'll take a guess as to what happened. The Government told the grand jury that the overt act requirement was not necessary, or perhaps, I'll take another guess, they stated to the grand jury what they stated to the district judge, that the indictment does in fact state the overt act when plainly it doesn't.
05-998 +++$+++ 49116 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose -- suppose we found out. Somebody told what happened, and it was a crime of bank robbery or it's an assault of a mailman, a postman. And you know, it turns out they didn't present one word Official of evidence, not a word that says that this individual who was assaulted had anything to do with the mail. There's complete absence of any evidence whatsoever on a major element of the offense. And now, suppose we get finished with the trial. Plenty of evidence. Conviction. Can you go back and raise that?
05-998 +++$+++ 49117 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe it would be raised --
05-998 +++$+++ 49118 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. No. I mean can you win.
05-998 +++$+++ 49119 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, can you win.
05-998 +++$+++ 49120 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah.
05-998 +++$+++ 49121 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You can always raise it.
05-998 +++$+++ 49122 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, you see, I'm saying is that error? Is that correctible error? I'm saying there is an absolute error. It is far worse than here. We know for a certainty there was no evidence whatsoever presented to the grand jury on a major element of the crime.
05-998 +++$+++ 49123 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You're assuming somehow the transcript has been disclosed.
05-998 +++$+++ 49124 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, I assume we know that. Take that as a given. We know.
05-998 +++$+++ 49125 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The doors are open, they're not closed.
05-998 +++$+++ 49126 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, we know. Official
05-998 +++$+++ 49127 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We know what happened and basically there's zero evidence.
05-998 +++$+++ 49128 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. Zero.
05-998 +++$+++ 49129 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the history of this Court's treatment of grand jury is that they may consider any evidence; they may consider --
05-998 +++$+++ 49130 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but what is the answer to my question, yes or no? I'm saying after the --
05-998 +++$+++ 49131 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe in that situation the petit jury's verdict would stand.
05-998 +++$+++ 49132 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's right. So the answer is no?
05-998 +++$+++ 49133 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The answer is no.
05-998 +++$+++ 49134 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if you can't raise that, which is a major area because there's a harmless error is what it really amounts to, why isn't the same true here where the error is far more likely to be simply technical and make no difference given the adequacy of the evidence?
05-998 +++$+++ 49135 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the Constitution contemplates that the grand jury be independent, that its decision --
05-998 +++$+++ 49136 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It does as well in my case.
05-998 +++$+++ 49137 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- not be reviewed, that there's no appeal, there's no review process for what Official the grand jury did behind its closed doors, whether we open the doors or not.
05-998 +++$+++ 49138 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What if it's perfectly --
05-998 +++$+++ 49139 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sir?
05-998 +++$+++ 49140 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm sorry. What if it's perfectly clear that the error is simply a clerical error? Let's take a case where somebody is charged with possession of a firearm by a convicted felon. And before the grand jury, we look at the transcript, we see that the prosecutor introduced evidence of five judgments of convictions for felony offenses. And the jury is properly charged that they have to find that this individual was a convicted felon. And there's simply -- and then when the case is tried at, when the case is tried the defense even stipulates that the person is a convicted felon. But there's a clerical mistake in preparing the indictment. And it doesn't recite the fact that the defendant was previously convicted of a felony. It's your position that there must be a reversal there?
05-998 +++$+++ 49141 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, if there is a clerical error, Rule 36 gives the trial judge the ability, and the power, and the authority to correct an error which is purely clerical. I refer you to the case of Contreras-Rojas, which was this exact defense. Official
05-998 +++$+++ 49142 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what if it comes up on appeal? Nothing is done until it comes up on appeal.
05-998 +++$+++ 49143 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I believe --
05-998 +++$+++ 49144 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which is exactly in the posture of this case.
05-998 +++$+++ 49145 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Rule 36 says the court may correct clerical errors at any situation. But that, your question presupposes that we know what happened in the grand jury room, that it should have been an indictment, they intended it to be in the indictment --
05-998 +++$+++ 49146 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How do you distinguish the mail -- the letter carrier case that Justice Breyer posed, because there you said even though there was no evidence at all of what this person was, if the petit jury found it, that would not be subject to review. I don't think you answered Justice Breyer and he said if you concede that, the failure to introduce any evidence that this person was a letter carrier.
05-998 +++$+++ 49147 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I would like to even sharpen Justice Breyer's hypothetical. Let's assume that the indictment did set forth what the overt act was. It did. But there was no evidence of that overt act introduced before the grand jury. What would the result of that be?
05-998 +++$+++ 49148 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The result -- Official
05-998 +++$+++ 49149 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Then the trial occurs --
05-998 +++$+++ 49150 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And he's found guilty.
05-998 +++$+++ 49151 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ He's convicted. And I think you're going -- your position is that conviction would stand.
05-998 +++$+++ 49152 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My position is the conviction would stand, yes, sir.
05-998 +++$+++ 49153 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That doesn't seem to me to make a lot of sense.
05-998 +++$+++ 49154 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the grand jury is independent. There is no review from the grand jury. The petit jury is an independent institutional body. The function of the grand jury is not only to find probable cause, rightly or wrongly, but the function of the grand jury is also to select the charge. And specifically since your decision in Recuenco versus Washington that sentencing enhancements are to be treated the same way as basic elements of the offense to be charged also, the grand jury's role is going to be even better. My position is simply that there is no review whatsoever from the grand jury. If you're unhappy, you're a defendant, you're unhappy with what the grand jury did, you say there's no evidence, you go to trial, you get acquitted. That's the only review Official there is of the grand jury and what they did. If there's an error the case must go back to the same grand jury or conceivably another grand jury. There's no jeopardy at that stage. There's no constitutional complications. And the Government is free to go back. Quite frankly, I'm very surprised the Government did not just go back and amend the indictment -- not amend it, but supersede the indictment and allege an overt act. The basic problem we have here is that there are so many acts committed by everybody which could be in furtherance of a crime. And the problem is going to trial that we don't know which act the Government was talking about. They told us in motion proceedings that the entry itself was the overt act. But the court of appeals ruled that that cannot be an overt act. So possibly Mr. Resendiz was entitled to judgment as a matter of law.
05-998 +++$+++ 49155 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can't you ask for a bill of particulars?
05-998 +++$+++ 49156 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I could have done that, yes.
05-998 +++$+++ 49157 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, then you would have had no problem.
05-998 +++$+++ 49158 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But bill of particulars are not favored motions. And what is to -- that would still be the Government speaking on behalf of the grand jury. Official
05-998 +++$+++ 49159 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Were you, were you surprised at trial by the evidence that the defendant had submitted two false identifications? Was the first time you heard about that at trial?
05-998 +++$+++ 49160 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, Justice Ginsburg, I would submit that the prejudice to the defendant at the jury trial, the petit jury, was a slight prejudice. The real problem I feel was on appeal, that if the Government had alleged --
05-998 +++$+++ 49161 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But were you, was there any element of surprise in this trial? Did you not know beforehand that the Government was going to present evidence of two false identifications?
05-998 +++$+++ 49162 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I knew that, Your Honor.
05-998 +++$+++ 49163 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So there was no lack of notice; there was no surprise.
05-998 +++$+++ 49164 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In our court we have complete discovery. They copy the file for it and hand it to us. So we know everything they know. But what we did not know is what the Government would rely on as their overt act. They said it was the entry itself. The court of appeals ruled as a matter of law, rightly or wrongly, that that cannot be an overt act, because it simply --
05-998 +++$+++ 49165 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, surely submitting false identification could be a overt act. Official
05-998 +++$+++ 49166 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could be. But --
05-998 +++$+++ 49167 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there any doubt about that?
05-998 +++$+++ 49168 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could be an overt act. It could be, lying could be a overt act, tying your shoes in the morning with intent to go to --
05-998 +++$+++ 49169 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but you knew that -- you had the file. You knew the Government was going to prove this. And you also knew it was an overt act.
05-998 +++$+++ 49170 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could have been. But there are many acts.
05-998 +++$+++ 49171 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But your point is not that there was any prejudice here. Your point is that he was entitled to a grand jury?
05-998 +++$+++ 49172 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He was entitled to a grand jury as an independent institutional body. And the problem I have with the Government's point of view is that it places a judge as a reviewing authority over what a grand jury has done, regardless of the standard that's applied. And of course in -- it's a rare case when you even know what a grand jury did.
05-998 +++$+++ 49173 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't have any -- you're not suggesting to us that the grand jury that indicted him for intentionally attempting to enter the United States at or near San Luis would not have Official indicted him if the indictment had gone further and said, and he submitted false IDs?
05-998 +++$+++ 49174 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are, there certainly are scenarios under which they would have indicted him, yes, sir.
05-998 +++$+++ 49175 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You think that the -- that the indictment had to specify which of the many things that he did, or the several things that he did when he approached the border constituted the overt act that the Ninth Circuit -- he walked up to the border and he did a number of things to try to get into the United States.
05-998 +++$+++ 49176 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure.
05-998 +++$+++ 49177 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you think that the indictment has to specify that walking up wasn't a substantial step, but presenting the documents might have been, whether it was walking up, presenting the documents, lying to the agent? You have to go into that level of detail in order to satisfy the Fifth Amendment?
05-998 +++$+++ 49178 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Rule 7(c)(1) of the Rules of Procedure states that the indictment must state the essential facts. It need not be a memorandum of law just spelling out the elements of the crime in a general sense, but it must state the essential facts. In the Court's case of Hamling it says very clearly, the language of the statute must be accompanied by such Official statement of facts and circumstances as will inform the accused of the specific offense coming under the general description which is charged.
05-998 +++$+++ 49179 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's a separate requirement. I don't know if it's constitutional or not constitutional, but I didn't think that requirement was at issue here. The requirement of stating the facts is not the requirement of setting out the elements of the law. At least that's my understanding. Now, you can correct me if I'm wrong.
05-998 +++$+++ 49180 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, based upon your Hamling decision, I believe that's what the Court said, that there must be an allegation of facts under the decision in United States versus --
05-998 +++$+++ 49181 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, I'm not denying that. I just didn't think that had anything to do with this case. I mean, I thought that the object of the indictment initially was to set forth what crime the person was accused of and inform him of that. You are saying, and then there is another requirement, which seems a little vague. It's been hard for me to find out, to pin this down, and it's the one you state, which is that it says in addition in the rule you have to have facts. Official I don't know if those are the same. I thought they were two separate things.
05-998 +++$+++ 49182 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, one of the functions of the grand jury indictment is to provide notice to the accused of the exact offense with which he is charged. Here, clearly we knew he was charged with 1326, with attempting. What we did not know is which of the many, many acts that the Government suggested at various times, which of the many acts they proved at trial, would be the overt act. As I say, the appeal was unfair. It's not so much the trial was unfair. It was the appeal that was unfair.
05-998 +++$+++ 49183 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does the Government have to pick one overt act and say that's it, when it introduces evidence of a whole string of them?
05-998 +++$+++ 49184 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't see how we can really address it unless they tell us what they're talking about. And I would point out as of today the Government has still not identified a single act that is their overt act.
05-998 +++$+++ 49185 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, can't you allege that the means by which it was done are unknown, but that it was by one or more of the following?
05-998 +++$+++ 49186 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, you could. Many times in conspiracy indictments they will allege any of the Official following overt acts.
05-998 +++$+++ 49187 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's exactly what I -- I tried to read some treatises on this, and the more I read, the more confused I got. I started out thinking, well, it's sufficient if you have bank robbery you say on October 14, 2004, in the city of such and such, at the corner of such and such, where there is a bank, the defendant walked into the bank and he, he attempted or he did by force or threat of force, take property belonging to someone else, or whatever it is, and that that would be sufficient. And that you don't have to say, and in addition he, you know, what the force consisted of, did it consist of a knife, or a gun, or a fist. Can you give me some enlightenment, at least if you think that's relevant here?
05-998 +++$+++ 49188 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think that's relevant because that's going into excessive detail. The requirement is that the essential fact --
05-998 +++$+++ 49189 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If it's excessive detail, the central fact, then why isn't on such and such a date at such and such a time he attempted to?
05-998 +++$+++ 49190 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because he did many things in furtherance of the attempt according to the Government's proof, and we had a right to know, to have notice of the Official accusation, what is the Government talking about?
05-998 +++$+++ 49191 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Then why, if that's so, why wouldn't that apply as well if they said he attempted to and committed an overt act in -- that is a substantial step. And then you're saying in addition, they have to list the particular facts.
05-998 +++$+++ 49192 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The essential facts.
05-998 +++$+++ 49193 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I couldn't find any case in this Court that said that. I mean, I found in Hamling a case that went the other way, a general statement. They said all you have to do is say obscenity, you don't have to say how obscene or in what way it's obscene, et cetera.
05-998 +++$+++ 49194 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But in the Russell case they said that you have to provide the essential facts, what was the nature of the committee hearing, what was the subject --
05-998 +++$+++ 49195 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah. Yeah. Yeah. And then Russell seems lost from sight for quite a while, or isn't followed a lot.
05-998 +++$+++ 49196 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you come back and you tell Justice Breyer, well, that's because we had no notice. But that's a different argument than the fact that there was no indictment. Notice can be cured by a bill of particulars, by the fact that you've had a Official chance to contest the evidence at trial, that there was no error. That's a quite different rationale than saying that this is not an indictment.
05-998 +++$+++ 49197 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's not an indictment because it did not allege the essential facts.
05-998 +++$+++ 49198 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that, it seems to me, is your argument, not lack of notice.
05-998 +++$+++ 49199 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it didn't provide a notice of what the essential facts was. Those are overlapping concepts, certainly, but we did not know what the facts --
05-998 +++$+++ 49200 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask this question. Should the test for the missing element be different for the test for the wrong element? In other words, suppose the indictment alleged he walked up to the border and the evidence showed he rode a bicycle. There's a variance. Would that present a different legal issue than if they just leave the overt act entirely out?
05-998 +++$+++ 49201 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That presents a different legal issue because a variance means they alleged A, they proved B. Here they did not allege A. Nothing was alleged.
05-998 +++$+++ 49202 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why should the test for judging the two be different?
05-998 +++$+++ 49203 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Between a variance -- Official
05-998 +++$+++ 49204 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Between a variance and an omission?
05-998 +++$+++ 49205 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, when you have a variance the question is how much is the variance, how far off is the variance.
05-998 +++$+++ 49206 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's clearly different. He rode a bicycle instead of walking.
05-998 +++$+++ 49207 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, he's given notice that he's approaching the border with intent to commit this crime.
05-998 +++$+++ 49208 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So here you've got notice he made an attempt, but you didn't tell us whether he rode the bicycle or he walked.
05-998 +++$+++ 49209 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But then the question becomes is it material, is the variance material, is it far off from what alleged? Here nothing was alleged.
05-998 +++$+++ 49210 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ See, the problem I'm trying to think through is why should there be a different rule between those two situations. It seems to me they're equally likely to produce prejudice or lack of notice and a failure to comply with the letter of the Constitution.
05-998 +++$+++ 49211 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the prime variance case is Stirone versus United States in the 1960s, where the Court very simply said that where nothing is alleged Official this cannot be treated as a simple variance.
05-998 +++$+++ 49212 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But why isn't your answer to Justice Stevens that in the case in which there is no allegation of an element at all there isn't a sufficient indictment to charge him for anything, whereas in the case of the variance on your theory, as I understand it, there is an indictment and the question is simply whether he was misled by the variance and prejudiced?
05-998 +++$+++ 49213 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
05-998 +++$+++ 49214 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So why isn't the answer is in one case there's an indictment, and in the other case there isn't?
05-998 +++$+++ 49215 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the extent is -- it's a question that can't be answered in the abstract. It's a question of how material the variance was.
05-998 +++$+++ 49216 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but why isn't your answer to him that in the case in which there is a variance you have an indictment; in the case that you're talking about there is none? And the reason I press you on that is that I thought the essence of your case was that there is no indictment here, i.e., the grand jury function has not been performed and he is entitled to the grand jury function before he goes to trial.
05-998 +++$+++ 49217 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
05-998 +++$+++ 49218 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if that is the nub of Official your position, then I would have thought your answer to Justice Stevens was what I suggested. If that's not your answer to Justice Stevens, then I'm not sure that I understand your case.
05-998 +++$+++ 49219 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, our case is simply that where a material element is omitted the grand jury -- something went wrong in the grand jury proceeding, and the only remedy for that is to return it, the case, to the grand jury and let them have a second go --
05-998 +++$+++ 49220 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is the result of what went wrong? How do you characterize the grand jury product in the case in which, as you put it, something goes wrong?
05-998 +++$+++ 49221 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Constitutionally deficient and did not fulfill the requirements of the Fifth Amendment.
05-998 +++$+++ 49222 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ An insufficient -- in other words, there is no indictment charging a crime? Is that --
05-998 +++$+++ 49223 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor, no crime, and the reason for that -- I'll go one step further -- is because there's no way of knowing whether the Government --
05-998 +++$+++ 49224 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that's not an element. You talk about essential facts and material -- Official I mean, the statute makes it a crime to intentionally attempt to enter the United States having previously been deported and all that. It doesn't say anything about presenting false identification. So why are those essential facts when they're not part of what the statute prohibits?
05-998 +++$+++ 49225 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because that is -- there must be facts to show what the overt act was. Just providing a legal memorandum of what the elements of the offense are doesn't do any good. What the Constitution contemplates is that the essential facts be laid out.
05-998 +++$+++ 49226 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose this indictment charged not an attempt to enter, but unlawful entry. Then the indictment would be sufficient, right? There wouldn't be any problem with it?
05-998 +++$+++ 49227 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if it --
05-998 +++$+++ 49228 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It charged, not an attempt, but an unlawful entry. Anything missing from the indictment?
05-998 +++$+++ 49229 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, because that's a general intent crime. There's no specific intent and no requirement that he perform any overt act.
05-998 +++$+++ 49230 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the defendant could be convicted of an attempt under such an indictment, could he not? Official
05-998 +++$+++ 49231 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under such an indictment, under this case he could not, because he was under the constant surveillance of the INS at the time and in law that is not a legal indictment, not a legal reentry, an illegal reentry. It's one of those quirks in the law, and that's why they charged the attempt, to avoid these questions of whether he was under the constant control and surveillance of the immigration authorities, which he was. He never got by secondary. So that's why the charge was attempt as opposed to unlawful entry.
05-998 +++$+++ 49232 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in that situation, you wouldn't know what the substantial step was, would you?
05-998 +++$+++ 49233 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, and --
05-998 +++$+++ 49234 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The indictment wouldn't tell you what the substantial step was.
05-998 +++$+++ 49235 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And there wouldn't be any need either because it's not a specific intent crime and there's no requirement --
05-998 +++$+++ 49236 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If the defendant was convicted of the lesser included offense of attempt under an indictment charging the completed offense?
05-998 +++$+++ 49237 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Attempt is not a lesser included. The Congress has intended to make attempt on the same level as the substantive offense. That is the way the case law has been coming out. So whether he Official enters, whether he attempts, or whether he's found in the United States are all on an equal par. It's not a lesser included.
05-998 +++$+++ 49238 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, I don't understand that. You're saying it's a separate offense, but a lesser included offense is a separate offense. It just happens to be embraced within some other offense.
05-998 +++$+++ 49239 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it has the same guideline punishment. It has the same treatment as the unlawful entry. And they're treated -- we have case law in our circuit that says, I think it is Corrales Beltran, that says the attempt is a substantive offense, even though it sounds contradictory.
05-998 +++$+++ 49240 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What does that mean, if you're tried for illegal entry and the Government doesn't prove the illegal entry because you're under supervision when you get in, the jury could not convict of attempt?
05-998 +++$+++ 49241 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If he was charged that way, they probably could, yes. There could be a two-count indictment or there could be alternatives. But that wasn't this case.
05-998 +++$+++ 49242 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And that would be okay, just charge with attempt without setting forth the overt acts for the attempt? Official
05-998 +++$+++ 49243 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they would have to set out the overt act and the essential facts that constitute the overt act.
05-998 +++$+++ 49244 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose that it's an assault and the indictment says on such and such a day, at such and such a time, he assaulted the postman, right? You also have to say what, that he waved his fist or that he had a knife? You have to say that in the indictment?
05-998 +++$+++ 49245 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't think so.
05-998 +++$+++ 49246 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. All right. So I thought normally essential facts means simply the facts -- you can state the essential facts by writing the statute and normally that tells you. Now, is that true? One case that seems to go the other way is Russell.
05-998 +++$+++ 49247 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Normally, yes, sir.
05-998 +++$+++ 49248 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Normally, yes.
05-998 +++$+++ 49249 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. However, in this case there is a peculiar meaning to the word "attempt" that when Congress used the word "attempt" they meant to bring with that word its requirements under the common law.
05-998 +++$+++ 49250 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why more than any other word in the statute? "Attempt," people know what that Official means.
05-998 +++$+++ 49251 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they do and they don't.
05-998 +++$+++ 49252 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And they also know what "assault" means. And if you tried, you could spell out "assault." They know what "robbery" means, but you could spell it out. So why does the Ninth Circuit think this one you have to spell out, but all the other words you don't have to?
05-998 +++$+++ 49253 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's why they had an en banc determination, because the judges were in disarray over that question. But at the time of this trial of the en banc decision in the Ninth Circuit, Gracidas-Ulibarry, had established concretely that the intent of the legislature was to incorporate the common law meaning of the word "attempt."
05-998 +++$+++ 49254 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Baggot, could I come back to your answer to my earlier question. You said you could only be convicted of the lesser included offense if the lesser included offense is set forth explicitly in the indictment. Are you sure of that?
05-998 +++$+++ 49255 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, sir.
05-998 +++$+++ 49256 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are you sure that's the law?
05-998 +++$+++ 49257 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but here under 1326 it's Official quite different. The intent of the legislature was that the attempt would itself be a substantive offense.
05-998 +++$+++ 49258 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ As I said in my previous question, every lesser included offense is itself a substantive offense. That doesn't distinguish attempt from anything else. And my understanding is if you're charged with a greater offense, the lesser can be a subject of conviction even though it's not explicitly set forth in the indictment.
05-998 +++$+++ 49259 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, that's correct.
05-998 +++$+++ 49260 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And if that is the case here, then it seems to me he could have been convicted of attempt without ever having had set forth in the indictment the overt act that you demand.
05-998 +++$+++ 49261 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's a good point. But under our -- all I can tell you, Justice Scalia, is that under our case law the attempt is considered a substantive offense. That's been the law --
05-998 +++$+++ 49262 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But substantive offense is one thing. Lesser included, I think you said earlier it couldn't be a lesser included because it's subject to the same punishment. So it is not lesser?
05-998 +++$+++ 49263 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under this statute, under 1326, that's the ruling of our circuit. Your Honor, in conclusion, I'd just like to Official emphasize that if the Government's position is adapted, what you will have is judges reviewing the decision of the grand jury whether or not to allege certain elements, essential elements of offenses. That is challenging the independence of the grand jury, which is part of the structure set up by the Constitution, that the grand jury is a separate institution. Anything that the grand jury does, any mistakes that are made, need to be returned to the grand jury and not be reviewed by a single judge, a panel of judges, or an en banc or any court. Are there any other questions by the Court?
05-998 +++$+++ 49264 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Baggot.
05-998 +++$+++ 49265 +++$+++ TRUE +++$+++ MR. BAGGOT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, sir.
05-998 +++$+++ 49266 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Dreeben, you have three minutes.
05-998 +++$+++ 49268 +++$+++ FALSE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice.
05-998 +++$+++ 49269 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Dreeben, is attempt a lesser included offense of the substantive offense of illegal reentry?
05-998 +++$+++ 49270 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's a substantive offense. It is an attempt offense. I wouldn't necessarily Official describe it as lesser included, but Rule 31 of the Federal Rules of Criminal Procedure does allow a trial judge to submit an attempt offense to the petit jury when attempt is a violation of the substantive law. I should say that the Government's position is that there does not need to be a separate charge of attempt in the indictment in order to permit Rule 31 to operate, but there is a circuit split over whether lesser included offenses can be submitted to the jury unless they are included in the indictment. So we're not operating under a uniform rule that would always allow us to do that, and I'm not sure which way the Ninth Circuit goes on that, although I could hazard a guess. (Laughter.) The problem that we have here is that we are living under a rule of law in the Ninth Circuit and in at least one other circuit that forces the Government to pay a tremendous penalty when a mistake is made in an indictment, and it does happen. Justice Souter, I can assure you that judges dismiss plenty of indictments for failure to dismiss -- state elements, but they don't get them all.
05-998 +++$+++ 49271 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But Mr. Dreeben, isn't the point that the tremendous cost that you refer to is a Official tremendous cost that the Government pays by its choice to go to trial, as opposed to going back to the grand jury and making sure that it has an adequate indictment?
05-998 +++$+++ 49272 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the Government is often quite confident that it's correct. And I think if you put yourself in the position of the prosecutors in this case, you can see why that's true. But there are myriad rules and sub-rules of substantive law that this Court will never review, that require the Government to conform with various pleading obligations. They're all below the radar screen. But when you have a rule of automatic reversal like this, they jump up to prominence. And the reason that they do is because the entire criminal justice system, victims, witnesses, the judge, the prosecutors, the defense bar, jurors, everybody is being asked to go through a trial that was conducted on an error-free basis by hypothesis, simply because there was a mistake at the charging phase. And the petit jury's verdict we submit makes it clear that that mistake does not entitle the judicial system to say let's throw it all out and start again simply as a prophylactic mechanism.
05-998 +++$+++ 49273 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If you concede there was an error, is there anything to prevent us from saying we don't accept that concession, and have you rebrief and Official argue the question of whether or not an overt act is required?
05-998 +++$+++ 49274 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I hope that if the Court does not choose to decide the question on which it granted certiorari, that it does hold that the Ninth Circuit's substantive rule of law here is incorrect, and that there was nothing wrong with the indictment.
05-998 +++$+++ 49275 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But can we do that in the face of your concession without having reargument?
05-998 +++$+++ 49276 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, I think this Court can do anything it chooses, regardless of the Government's concession. (Laughter.) But we're not conceding that the Ninth Circuit was correct. We simply didn't challenge it because the important question for us is the rule of law on harmless error. This pleading rule is something that we can comply with. It may be wrong, but it's something, like many wrong rules of law, we live with.
05-998 +++$+++ 49277 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Dreeben. The case is submitted.
05-998 +++$+++ 49278 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
06-102 +++$+++ 49282 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first today in case 06-102, Sinochem International versus Malaysia International Shipping Corporation. Mr. Castanias.
06-102 +++$+++ 49284 +++$+++ FALSE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: This Court in Ruhrgas against Marathon encapsulated the relevant line of this Court's precedents in the rule that we suggest controls in this case. What it said, it is hardly novel for a Federal court to choose among threshold grounds denying audience to a case on the merits. Now this Court's cases extending through Steel Company and Ruhrgas and afterward, hold true to this statement. Threshold non-merits issues may be decided by a Federal court before it determines its jurisdiction, in that term meant as subject matter and personal jurisdiction. This Court in this case should hold the forum non conveniens is another one of those threshold non-merits grounds for denying audience to a case that can be considered first before jurisdiction. Adopting that rule in this case will do three things. First, it will result in a rule that is most faithful to the Court's precedents in the area. Second, it will respect the rule of Steel Company and forbid ultra vires judgments on the merits. There is no chance that a dismissal in forum non conveniens will exercise more power than is granted to the Federal courts by Article III or by Congress in statutes. And finally, it will give the Federal courts the appropriate flexibility in appropriate cases to serve important interests such as economy, constitutional avoidance, and particularly relevant in this case, international comity.
06-102 +++$+++ 49285 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Just on the second point. I wanted -- does the rule of the Federal district court in forum non conveniens where it dismisses a case for lack of a convenient form, does it have any ongoing consequences as the law of the case? I know our Chick Kam Choo precedent where we said Federal court determination forum non conveniens is not binding in a state court, but supposing in this case that the parties went to San Francisco with a -- and said we want to sue there. Would the San Francisco court, the United States District Court feel bound by the determination that this dispute is determined by Chinese law, and that the Chinese court is therefore the appropriate court?
06-102 +++$+++ 49286 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think there are two components to your question, Justice Kennedy, and let me see if I can answer both of them. The first is whether the determination that the Federal court in Philadelphia, for example, in this case, was an inconvenient forum. Would that determination be binding on the court in San Francisco? Our view would be probably not. It would be persuasive in that case, but the forum non conveniens --
06-102 +++$+++ 49287 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about the ruling that this would be governed by Chinese law and that the Chinese court is the best forum to consider that? That too has no lat -- has no effect beyond the court in Philadelphia?
06-102 +++$+++ 49288 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Let me -- that was the second part of your question that I was going to try to answer. And with regard to that, I think that it would not have preclusive effect in the main -- in the mine run of cases. And the reason I think it wouldn't have preclusive effect is that it would be one factor in what this Court has described as a multifarious analysis under the forum non conveniens analysis at American Dredging, and so it would be hard to say that for issue preclusion, for example, that the choice of law determination in that case was necessary to the ruling dismissing the case. Now one might imagine a case at the margins where that was the case and there might be a case for preclusive effect, but that's, I think, not likely to be presented by this case.
06-102 +++$+++ 49289 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you know any case, Mr. Castanias, where there has been a forum non conveniens dismissal in favor of a foreign forum where the plaintiff has then attempted to go into a different U.S. court to get a different resolution?
06-102 +++$+++ 49290 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And by U.S. court you mean Federal court like Justice Kennedy's hypothetical, or perhaps a state court as well?
06-102 +++$+++ 49291 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Either one.
06-102 +++$+++ 49292 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think I have seen cases, and I can't cite them to you as I stand here right now, where litigants have tried to go to a state court. Another Federal Court, I can't think of a single one. I'm hard pressed to.
06-102 +++$+++ 49293 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You -- you were urging that this is a threshold issue and it has nothing to do with the merits; but there is an argument that the existence of personal jurisdiction or not might have some bearing on the forum non conveniens evaluation.
06-102 +++$+++ 49294 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In some cases, I suppose that could be true, Justice Ginsburg; but the point of our rule is that the only issue presented by this case is that of Federal court power. There may be a case where it is appropriate in the district court's discretion. In fact in Ruhrgas, you writing for the Court pointed out that the normal court order business is to determine subject matter jurisdiction first and then personal jurisdiction. But the point of our application of that rule in this case is there may be some cases where it's appropriate, and this is a paradigmatic example of the sort of case where it would be appropriate to decide the forum non conveniens issue first, before personal jurisdiction. I hope that satisfies -- I hope that's an answer to your question.
06-102 +++$+++ 49295 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Uh-huh. Uh-huh.
06-102 +++$+++ 49296 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With regard to the body of this Court's decisions, we cited in our briefs cases like Leroy against Great Western, which holds that a Federal court can decide venue before deciding personal jurisdiction. In this case it's hardly different because again, as American Dredging pointed out, forum non conveniens is properly described as a supervening venue provision. The Gold Law case which we cite in our reply brief, and the solicitor general relies on, says that Federal courts have the power to transfer a case before determining personal jurisdiction. And grants even more analogous here are the extension in the Tenet case. In the case of extension, extension documents have very similar, though different, moorings as the forum non conveniens doctrine. And they're both discretionary decisions to decline to exercise jurisdiction. This Court pointed out, citing the Ellis case, and it pointed this out in the Steel Company, Ruhrgas and Tenet cases that extension can be decided first. And again, applying that precedent to the case of forum non conveniens, it's -- it really does follow that forum non conveniens can be decided first. With regard to the Tenet case, that case is very close to a merits issue, perhaps even one might call it a merits issue, but it was so threshold that it was appropriate to decide the totten bar that was at issue in that case before jurisdiction. Again, and with all of these lines of cases, deciding forum non conveniens first will have -- will provide no chance of the Federal court going beyond its constitutionally and statutorily exercised powers. Now, I'd like to leave the Court with one final thought about the way this, and the importance of applying this rule in this case. The complaint that Malaysia International Shipping makes against Sinochem is nothing more than a claim that Sinochem defrauded a Chinese court. There is a term used in the complaint, a fraudulent misrepresentation. The term negligent misrepresentation is also used. But make no mistake about it. The complaint in this case is that Sinochem made a misrepresentation to Chinese courts. This is precisely the sort of interference with the Chinese court system which has proceeded to judgment, and judgment by the way on these issues in favor of Sinochem and against Malaysia International, that really cries out for the flexibility inherent in our rule. Unless the Court has further questions, I'll reserve the balance of my time.
06-102 +++$+++ 49297 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ One question that doesn't even have to do with the issue before us. I'm curious about why we're speaking of fora, judicial fora, there was in this picture an agreement to arbitrate. What happened to that?
06-102 +++$+++ 49298 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, I didn't hear the last part of your question.
06-102 +++$+++ 49299 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There was an agreement to arbitrate. And we're talking about a suit brought by one party in the United States, by the other party in China, and no arbitration occurred apparently, although I thought the contract called for it.
06-102 +++$+++ 49300 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ My understanding, Justice Ginsburg, and this is a vague recollection from one aspect of the record, is that the arbitration clause was held not to apply in this case.
06-102 +++$+++ 49301 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you.
06-102 +++$+++ 49302 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's not an exercise of law declaring authority on the merits?
06-102 +++$+++ 49303 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, I'm sorry. To be clear, Mr. Chief Justice, it was not held by the district court in this case to not apply. That issue was not in front of it. But at the time --
06-102 +++$+++ 49304 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In other words, the district court didn't hold that it didn't apply?
06-102 +++$+++ 49305 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, correct. I think, I think that, I think it was agreed by the parties or understood by the Chinese court. My memory on this with regard to the record, maybe background facts that are not in the record but I, on summing it up, are a little be fuzzy. But I think to answer your question, Mr. Chief Justice, there, in abstention, an -- an arbitration clause I think provides a closer question than this case does for an issue of whether it's law declaring authority, I think as your question put it. It's arguable that an arbitration clause is little more than a, in essence, a forum selection clause of the same kind that a venue provision or a forum non conveniens ruling might provide.
06-102 +++$+++ 49306 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It might have been the allegedly defrauded Chinese court that found that the arbitration clause did not apply?
06-102 +++$+++ 49307 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry. The first part of your question I had trouble --
06-102 +++$+++ 49308 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It might have been the allegedly defrauded Chinese court which found that the arbitration clause did not apply.
06-102 +++$+++ 49309 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- it may be. I just, I don't have that ruling in front of me.
06-102 +++$+++ 49310 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't see how that court would have gotten into the act unless that was the case.
06-102 +++$+++ 49311 +++$+++ TRUE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Again, we'll reserve the remainder of our time for rebuttal.
06-102 +++$+++ 49312 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. Mr. Hallward-Driemeier?
06-102 +++$+++ 49314 +++$+++ FALSE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: In Steel Company the Court held that it is impermissible to adjudicate the merits of a case over which the Court may lack jurisdiction. But it is another thing entirely for the Court to decline to exercise jurisdiction that it might well possess. In Ruhrgas clarified, in language that counsel has already quoted, that a court may choose among threshold grounds for denying audience to a case on the merits. Now, the dividing line between a threshold non-merits ground and a merits ground may in some cases be difficult. And the Court has -- members of the Court have disagreed in some cases; but there is an easier set of cases and that is where the Court is declining to exercise jurisdiction and especially where as here, it is doing so in favor of litigation of the substantive dispute in another forum. And this Court has -- has decided already that it is permissible, for example, for a court to decline to exercise supplemental jurisdiction before deciding a difficult question of whether it would possess subject matter jurisdiction over the supplemental claims at all. Forum non conveniens is in the nature of an abstention extension doctrine. In Gulf Oil, one of the first cases of this Court to describe the forum non conveniens doctrine and its factors, analogizes forum non conveniens to a Burford abstention. The Court even in Steel Company acknowledged that abstention on grounds of Younger, for example, would be permissible to decide before resolving a disputed question of jurisdiction.
06-102 +++$+++ 49315 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the Gulf Oil case does say that a forum non conveniens dismissal presupposes that the forum is one in which there's personal jurisdiction and one of proper venue. It's just another forum is more appropriate.
06-102 +++$+++ 49316 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's, that's right, Your Honor. And the Court said so in the course of rejecting an argument that because it was conceded that jurisdiction and venue were proper in the Southern District of New York, that the doctrine of forum non conveniens could not apply. The Court said that couldn't be so, because the doctrine of forum non conveniens presupposes the availability of two fora. But the Court did not address the entirely separate question of whether the Court could assume that even I it had jurisdiction, it would not exercise it. And --
06-102 +++$+++ 49317 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It was not, not felicitously put. I think all the Court was saying was that there would no need for a doctrine of forum non conveniens where there is no personal jurisdiction. The only point of the doctrine is to get rid of the case where you -- where you do have jurisdiction. And so you do not have to -- but that doesn't mean that you must establish jurisdiction before you can exercise the doctrine. It is a doctrine that overrides the existence of personal jurisdiction. In that sense, it presupposes personal jurisdiction.
06-102 +++$+++ 49318 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That -- that's right, Your Honor. And in the court already determined it lacked subject matter jurisdiction or if venue was improper, then forum non conveniens would have no work to do. But Gulf Oil certainly didn't address this question of the ordering of these restful matters. And of course the doctrine of forum non conveniens, its entire purpose is to allow litigation to occur in a more convenient and appropriate forum, and it would undermine severely the purposes of the doctrine --
06-102 +++$+++ 49319 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do I correctly understand your argument to be that, that in this case it happened to be the doubt about personal jurisdiction rather than subject matter jurisdiction but you would make the same argument if it were a doubt about subject matter jurisdiction?
06-102 +++$+++ 49320 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's right, we would. And, and one of the cases that Ruhrgas quoted and relies on was the D.C. Circuit's decision in -- Papandreou, which involved subject matter jurisdiction under the Foreign Sovereign Immunities Act. And there the Court quite rightly said that it would be improper to force a foreign sovereign to undergo extensive jurisdictional discovery in this case when it was clear that at the end of the day the Court would dismiss day in favor of a foreign forum in any event. So it would apply to, to questions of subject matter jurisdiction as well as personal --
06-102 +++$+++ 49321 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can a district court do both? Can it say I've reached personal jurisdiction, I conclude that I, we do not have jurisdiction over this case? And in the alternative be dismissed on forum non conveniens grounds if it turns out we do?
06-102 +++$+++ 49322 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think they could do both. The second would be really superfluous.
06-102 +++$+++ 49323 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But not if there's, I presume, if there's an appeal.
06-102 +++$+++ 49324 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If -- if -- an appeal, the court could, the court of appeals could affirm on either ground. Again, to emphasize the point that counsel has made, the argument here is not that forum non conveniens must necessarily be decided before jurisdictional questions. In fact, the natural order would be to decide jurisdictional issues first. But as the Court held in the analogous circumstance of venue in the Leroy decision, there are circumstances that counsel in favor of reversing that order, such as avoiding a difficult constitutional issue or, as in Mr. Papandreou, avoiding imposing the burden of jurisdictional discovery on a foreign sovereign or foreign entity when a case going to be dismissed in the end in any event. If the Court has no further questions --
06-102 +++$+++ 49325 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In Martin, in the hypothetical where this case is dismissed for forum non conveniens and then they go to another Federal district court, could the second Federal district court say this has already been heard by the first district court; I'm not getting into it? Or, or does that district court have, have to go through the motion again?
06-102 +++$+++ 49326 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think the second court would have to at the very least ascertain that circumstances had not changed or that there weren't relevant difference of facts. Your, your hypothetical earlier was of filing, refiling this suit in California.
06-102 +++$+++ 49327 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now, why is that? Now -- to some extent this is a call for the district judge. There is a degree of discretion involved in it, and it's entirely conceivable that one district judge would correctly dismiss the case for forum non conveniens whereas another district judge faced with the same question would not do so. And both of them would be acting lawfully; isn't that -- isn't that conceivable?
06-102 +++$+++ 49328 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is in the nature of a discretionary determination, as Your Honor says, that -- that different judges could reach different decisions. In the Parsons case, Parsons versus Chesapeake and Ohio Railway, the Court emphasized there the question was whether a state court's forum non conveniens determination had preclusive effect on a Federal court's analysis of the factors. And this Court held that did it not. In large part because it's impossible to know that every factor would be the same or would be weighed the same by the second court. And so I think it would be open to the second court to, to reanalyze the issues; but even if it weren't, even if there were some preclusive effects, I don't think that that undermines our position, because it is, of course, equally true of other threshold determinations such as personal and subject matter jurisdiction that they may have issue-preclusive effects in subsequent litigations. For example, a trial court could decide that it lacks subject matter jurisdiction because the amount in controversy is insufficient because under state law, the plaintiff would not be able to recover punitive damage. That determination would be given issue-preclusive effect in a subsequent suit filed by the same plaintiff in another district court. In fact Justice Scalia wrote an opinion on that subject in the D.C. Circuit in the Dozier versus Ford Motor Company.
06-102 +++$+++ 49329 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Hallward-Driemeier, because your time is running out, there is a question about a court without personal jurisdiction dismissing on forum non conveniens ground, and that is, it's common, as you know, to condition forum non conveniens dismissals on the defendant's undertaking that the defendant will not raise the statute of limitations and other conditions. If the Court has no personal jurisdiction over the defendant, it would be unable to impose such conditions; isn't that so?
06-102 +++$+++ 49330 +++$+++ TRUE +++$+++ MR. HALLWARD-DRIEMEIER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our understanding of a conditional dismissal in this circumstance is that the dismissing court is explaining its understanding of the world, and that -- and facts as they bear upon its analysis, such as is the defendant subject to jurisdiction in a foreign forum. Oftentimes, the plaintiff -- if I could answer -- oftentime the plaintiff objects to dismissal because they can't sue the defendant in the foreign forum. The defendant agrees to waive any objection to jurisdiction. That understanding of fact is a condition of the dismissal. If it later proves to be untrue because the defendant objects to jurisdiction of the foreign court, it would be open to the plaintiff to seek to reopen the first suit on that ground. Thank you very much.
06-102 +++$+++ 49331 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. Ms. Higgins.
06-102 +++$+++ 49333 +++$+++ FALSE +++$+++ MS. HIGGINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: We believe that this Court should affirm the judgment of the Court of Appeals for the Third Circuit based on three reasons. We believe that personal jurisdiction is a requirement articulated in Gulf Oil versus Gilbert which remains before this judicially created doctrine may be evaluated. Second, we believe that adopting the Third Circuit holding establishes a clear, bright line discrete rule that is easy to enforce and appropriate to evaluate at any other appellate level. And third, we argue that the nature of the doctrine of forum non conveniens itself presupposes jurisdiction before making a ruling to dismiss for some other convenient forum. The analysis that has brought the case to this Court has included a divergence of opinions between various circuit courts. In the briefing, all parties tend to agree that forum non conveniens is a non-merits-based ground for evaluating a ruling. The Fifth Circuit has decided otherwise. We, we express some issue with the fact that in looking at a forum non conveniens analysis, the Court necessarily, as the Government has conceded in its brief, takes a peek at the merits of the dispute. The other issue that arises is that if a court dismisses a case based on forum non conveniens, and then an appeal is sought, the appellate court always has the opportunity to evaluate both the subject matter jurisdiction and the personal jurisdiction. The Seventh Circuit in the Intek versus Engle case, came up with such a ruling recently. They expressed support for the Second Circuit and the D.C. Circuit, saying that it is appropriate to be able to deal with non-threshold matters such as forum non conveniens without ascertaining jurisdiction. In fact, the court acknowledged that they thought the dicta expressed in the Ruhrgas opinion would become the holding of this Court. However, for judicial efficiency, it decided to go through the analysis to determine whether or not there was personal jurisdiction in the case. It went through subject matter of the case and personal jurisdiction, and it determined that there was no jurisdiction.
06-102 +++$+++ 49334 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that only proved that an appellate court can affirm on grounds other than the ground relied upon by the district court, even if the ground relied upon by the district court is also a valid ground. It's up to an appellate court -- - it's available to an appellate court, especially where the ground is jurisdiction, to choose to look into jurisdiction and say there isn't any. I don't know, I don't know how that adds to your case.
06-102 +++$+++ 49335 +++$+++ TRUE +++$+++ MS. HIGGINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, I think it's appropriate. Both parties cite the vast waste of judicial resources that would occur if forum non conveniens had to establish personal jurisdiction first. And frankly, we see that as the other way. The Insight case in our opinion --
06-102 +++$+++ 49336 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you found one appellate court that chose to do it that way. Frankly, if I were sitting on an appellate panel I wouldn't do it that way if I thought the forum non conveniens ground was valid.
06-102 +++$+++ 49337 +++$+++ TRUE +++$+++ MS. HIGGINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I tend to agree with you on that point as well --
06-102 +++$+++ 49338 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
06-102 +++$+++ 49339 +++$+++ TRUE +++$+++ MS. HIGGINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- with it. But I think what the Third Circuit was stressing in its opinion is that you cannot subject the parties to litigate in another forum if there is some chance that your own forum does not have the personal jurisdiction. It is a prerequisite of the doctrine itself. And we believe that --
06-102 +++$+++ 49340 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask this question. We talk of course about the unnecessary burden on the litigants, but I wonder if there isn't even a more fundamental problem with the procedure that the Third Circuit followed here. That is, is there really a case or controversy down there? Does the defendant have any motivation to spend a lot of money fighting about jurisdiction when he knows that the case is going to be transferred anyway? Is this a real live controversy on the issue that's left open?
06-102 +++$+++ 49341 +++$+++ TRUE +++$+++ MS. HIGGINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it is, Justice Stevens, and I think the Court would address that by saying certainly on the negligent misrepresentation claim at this stage the record indicates that there was a ruling in China, but the appellate window is still open. And certainly the evidence has long gone into the Chinese case. Those are completely separate issues.
06-102 +++$+++ 49342 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There couldn't be any question about the alternate forum taking jurisdiction here, because it, in fact, had. A proceeding was ongoing in China. So you brought up the question about the Court gives up -- if the Court dismisses on forum non conveniens and then the supposedly more convenient forum doesn't take the case. But that can't be a factor in this case, where the other forum was in China and was indeed litigating the case.
06-102 +++$+++ 49343 +++$+++ TRUE +++$+++ MS. HIGGINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Ginsburg; but as practical matter, with the resolution of this case by this Court we would certainly have to start the process, whatever ruling this Court finds, all over again. We certainly cannot participate in the action in China because that has already gone on. We would have the option to participate in the case in the United States because those specific issues were not litigated in China.
06-102 +++$+++ 49344 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm sorry. I'm not following you, so please straighten me out. I thought that the claim was that a fraud had been committed on the Chinese court.
06-102 +++$+++ 49345 +++$+++ TRUE +++$+++ MS. HIGGINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct, Your Honor.
06-102 +++$+++ 49346 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your claim was that a fraud had been committed on the Chinese court in connection with the arrest of this vessel and the ensuing proceedings?
06-102 +++$+++ 49347 +++$+++ TRUE +++$+++ MS. HIGGINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct, Justice Ginsburg.
06-102 +++$+++ 49348 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now, why in the world should a court in the United States get involved in determining whether a fraud was committed on a Chinese court?
06-102 +++$+++ 49349 +++$+++ TRUE +++$+++ MS. HIGGINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, we believe it was appropriate for U.S. review because of the balancing of the maritime commerce that occurred in the case because of the bills of ladings. Although the district court believed that Chinese law would apply to the contract for the sale of the steel coils, in fact we would make the argument that with the various charter parties in the case, including the bill of lading that you reference, indeed American law would apply and there would be some different issues that would be evaluated.
06-102 +++$+++ 49350 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ American law to determine whether a fraud had been committed on the Chinese court? It seems just stating it that it might be offensive to the Chinese court to have another court determine whether it had been defrauded.
06-102 +++$+++ 49351 +++$+++ TRUE +++$+++ MS. HIGGINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would have been a concern, Justice Ginsburg, except that issue was brought up expressly before the Chinese court; and if I may refer you to page 18 of the joint appendix, the Chinese court ruled that, quote, "Given that the People's Republic of China and the U.S. are different sovereignties with different jurisdictions, whether the appellant has taken actions at any U.S. court in respect of this case will have no effect on the exercise by a Chinese court of its competent jurisdiction over said case."
06-102 +++$+++ 49352 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that was a very polite way of the Chinese court saying: We don't care what the United States court is doing; we've got this case, we've got the ship, and we're going to adjudicate it; and it doesn't matter. We don't have to say anything to the United States to chastise it for even thinking it could become involved in this matter. It was polite.
06-102 +++$+++ 49353 +++$+++ TRUE +++$+++ MS. HIGGINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I agree with you, Your Honor, except it is the only indication in the record that there is some foreign nation that has expressed an opinion on this. If you read the brief by the Solicitor General, the Government would have us think that every single case is going to involve foreign nations and delicate foreign policy disputes and such other factors. Very clearly, there is no such evidence in the record and the only evidence we do have is from another sovereign, China, that says if you have a U.S. cause of action we have no problem if a U.S. court adjudicates it on the merits. Having said that, the issue here was whether or not personal jurisdiction should have been decided before the forum non conveniens. And again, we would just go back to our second point, where the court believes that it can't evaluate a doctrine without having -- if it's a required factor of the doctrine that a sitting court making a ruling on that issue has to presuppose personal jurisdiction.
06-102 +++$+++ 49354 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why -- I mean, I assume that in deciding forum non conveniens -- that there is an inconvenient forum, the court making that judgment would assume that there was personal jurisdiction and would simply say, you know, put that into the mix. Assuming we have personal jurisdiction, is this nonetheless an inconvenient forum? And if the court can say yes, that's the end of the game. I don't see what you have to gain here. Suppose the Court does decide that it has jurisdiction and dismisses for forum non conveniens? What, what -- what are you gambling for here? I don't understand what's the -- what's the desirable outcome you hope to achieve?
06-102 +++$+++ 49355 +++$+++ TRUE +++$+++ MS. HIGGINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, for Malaysia International the desirable outcome would be upholding the Third Circuit opinion. It then gets remanded to the district court.
06-102 +++$+++ 49356 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right, and the district court at best for you, at best, finds personal jurisdiction. If it finds no personal jurisdiction, you know, it dismisses for that reason instead of for forum non conveniens. If it finds personal jurisdiction, it would say: Oh, there is personal jurisdiction; but I assumed there was personal jurisdiction when I dismissed it for forum non conveniens, so this is really the same call that I made before. Dismissed for forum non conveniens.
06-102 +++$+++ 49357 +++$+++ TRUE +++$+++ MS. HIGGINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And Justice Scalia, I concede that, but you would also have the ability of the defendant to waive personal jurisdiction. Again, you get into the judicial resources. The defendant could choose to waive it at that point in time and then I am right back again --
06-102 +++$+++ 49358 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why would a defendant that has moved to dismiss for forum non conveniens waive jurisdiction? It seems to me that there is something in this picture that is to your advantage and that is if you can get the Court to say, well, we have to do personal jurisdiction first, you ask for discovery on that issue and it goes out on forum non conveniens without deciding personal jurisdiction, you are not going to get that discovery.
06-102 +++$+++ 49359 +++$+++ TRUE +++$+++ MS. HIGGINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct, Your Honor, and then I would have to look for an evaluation of forum non conveniens that was favorable to the client. That was one of the issues that we raised on appeal to the Third Circuit; and the court did not make a ruling on that.
06-102 +++$+++ 49360 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, but discovery for its own sake is no fun. What does discovery for its own sake achieve? (Laughter.)
06-102 +++$+++ 49361 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Unless there's something at the end of the discovery. Now, maybe what you hoped is that the Republic of China would not accede to the discovery and therefore, you would get a default judgment or something. You know, I just -- I just don't see what's at the end of this game for you.
06-102 +++$+++ 49362 +++$+++ TRUE +++$+++ MS. HIGGINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's one possibility. But again, we talked about the policy issues of why the Government came in with the position they did. They suggested that the United States had a very distinct interest in avoiding delay, burdensome discovery, and difficult legal issues; and frankly, my thought is the same as yours. Any party has those desires to avoid those issues and come to a ruling in their favor. In this case we would hope that with an adoption of personal jurisdiction first, then the court would be required to rule on our motion to reevaluate forum non conveniens and we might be able to convince the court to be able to pursuit the case here. In this particular case, that is the goal that we seek because that is, as you say, all we have to do at the end of the game with it. I also wanted to --
06-102 +++$+++ 49363 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I guess we should ask the other side, but I think I know what their answer will be, whether if the Court does dismiss on the basis of forum non conveniens without first addressing personal jurisdiction, it must assume the existence of personal jurisdiction? And what do you think?
06-102 +++$+++ 49364 +++$+++ TRUE +++$+++ MS. HIGGINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it has to, Your Honor.
06-102 +++$+++ 49365 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, I agree.
06-102 +++$+++ 49366 +++$+++ TRUE +++$+++ MS. HIGGINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Seventh Circuit case --
06-102 +++$+++ 49367 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I agree. So how are you going to get a different result then when it goes back and the court of appeals says, oh, yes, you had personal jurisdiction, just as you thought you did, whereupon the district court says, oh, yeah, same result.
06-102 +++$+++ 49368 +++$+++ TRUE +++$+++ MS. HIGGINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But there is the possibility of a case happening, as it happened in the In Re Bridgestone case, which was a Seventh Circuit case. In that case the court dismissed for forum non conveniens and the -- I believe it dealt with the country of Mexico. The parties had obtained a ruling in Mexico saying that the Mexican courts were not to take jurisdiction of the case. Under those circumstances the court was required to take back the case because it no longer had the alternate forum in which to adjudicate the dispute. So I think that's the one example of the case that you raise.
06-102 +++$+++ 49369 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But we know that that's not going to happen here, because the Chinese court has adjudicated the case.
06-102 +++$+++ 49370 +++$+++ TRUE +++$+++ MS. HIGGINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not on this issue, Your Honor, and actually not on the bills of lading issue. You did raise that point and there is still the potential of arbitration taking place under the various charter parties to adjudicate the rights and liabilities of the remaining parties in the action. So that matter is still open as well.
06-102 +++$+++ 49371 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We're dealing with, because it's a foreign nation, not the codified forum non conveniens that's in 1404 and 1406. And you are treating this as it were counterpart to 1404, which is forum non conveniens. But 1406 is wrong venue and, as you know, in the Goldlaw case this Court said a court can transfer even though it lacks personal jurisdiction and is a place of improper venue. Now, why isn't the forum non conveniens doctrine as applied to foreign nations a combination of 1404 and a 1406, and if it includes 1406 then you don't need your personal jurisdiction, you don't need venue, you just transfer it to a place where those conditions exist?
06-102 +++$+++ 49372 +++$+++ TRUE +++$+++ MS. HIGGINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think, Your Honor, in that case, it's -- as the doctrine developed, the difference lies in the statutory framework of the 1404 versus the judicially created version of the forum non conveniens. I think you're correct that as forum non conveniens exists today, side by side with 1404, you certainly have the limited application that it will apply to only foreign nations or to a State court. And that's what I thought was the benefit of creating a rule that's rather limited in scope, that will not touch many other factors. It can be discrete. It can be applied easily. And that comports with Federal Rules of Civil Procedure 1. We thought that was one of the reasons why a finding by this Court would be able to ease the administration of cases along those lines. If the Court has no other questions, I certainly would urge that, based on precedent and logic and the terms of the doctrine of forum non conveniens itself, that the ruling of the Third Circuit be upheld. Thank you.
06-102 +++$+++ 49373 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Higgins. Mr. Castanias, you have 9 minutes remaining.
06-102 +++$+++ 49375 +++$+++ FALSE +++$+++ MR. CASTANIAS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, unless the Court has further questions, we'll rest on the argument given in the briefs.
06-102 +++$+++ 49376 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
06-116 +++$+++ 49380 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first this morning in case 06-116, Limtiaco versus Camacho. Mr. Waxman.
06-116 +++$+++ 49382 +++$+++ FALSE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: This case is properly before this Court, which should reverse under the plain language and purpose of the Organic Act of Guam. As to jurisdiction, at the time Congress amended the Organic Act to replace the certiorari jurisdiction of the Ninth Circuit with direct review in this Court, the Ninth Circuit had already granted the writ of certiorari that had been timely filed and the case had been briefed, argued and submitted. The amendment said nothing about its application to pending appeals, and someone had to decide whether and how it applied to this case. The Ninth Circuit was the proper body to do that, at least in the first instance, and until it did, this case was before that Court within the meaning of Gibbs versus Wynn.
06-116 +++$+++ 49383 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Waxman, I thought the Ninth Circuit did decide that question in another case that was pending, Santos.
06-116 +++$+++ 49384 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It did decide it in Santos, Justice Scalia.
06-116 +++$+++ 49385 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why wasn't that the time at which it was clear that the Ninth Circuit no longer had jurisdiction?
06-116 +++$+++ 49386 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, for reasons that we articulate, Your Honor, in a -- I forget the footnote number, but a footnote in our brief, there are some important distinctions, although they turned out not to be dispositive, between the nature and position of this case and Santos. But in any event, we know from the Ninth Circuit that it did not consider it otherwise, because if the Court will refer to I believe it's page 50a or 51a of the joint appendix, after the Court decided Santos, it sua sponte issued an order in this case -- it is on page 51a -- resubmitting this case effective February 1 to the Ninth Circuit's active consideration. And shortly thereafter, it filed the order in this case from that -- in our view, triggered the 2101(c) 90-day period.
06-116 +++$+++ 49387 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you suggesting that the test is whether under colorable jurisdiction -- a hypothetical case, suppose the statute, Federal statute is very clear that it applies in any case. Would your argument be the same?
06-116 +++$+++ 49388 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I wouldn't have the most, the strongest argument that I have in this case. I think -- now, the Court's cases are not clear here but it does seem to me that in the instance as here, where it isn't just that a party has made some application or filed a cert petition with a court, but the court has actually reached out and asserted jurisdiction, surely anything other than an amendment withdrawing -- that an active withdrawing -- withdrawing jurisdiction that requires anything other than merely a ministerial act, where there can be no possible confusion about what Congress intended to do, certainly anything short of that, it lies with the Court to ascertain it. And here --
06-116 +++$+++ 49389 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But if we accept that in the opinion, what was the phrase you used, colorable jurisdiction, or -- it's something I made up, I suppose -- is there some concept that we can refer to or some phrase that works to -- in order to incorporate your test that you seem to be suggesting?
06-116 +++$+++ 49390 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I actually would not embrace that test. I think that in an instance, Your Honor, where a court in which, properly had jurisdiction and affirmatively asserted it and issued -- and I can take the Court through this -- a series of orders of the Court, following this 19, the October 19, 2004 enactment leading up to the decision in Santos and thereafter, which the Court continued to rule, continued to issue orders in this case, I think a good argument can be made that on a theory of constitutional avoidance the court ought to construe any enactment of Congress, no matter how pellucid it is, as not constituting a self-effecting reversal of a preexisting order of the Court in which the case had been pending per order of the Court. And so I'm not sure that I would even embrace a ministerial test concept in the context in which a case is properly pending in front of a court which has affirmatively asserted jurisdiction over it. And indeed here --
06-116 +++$+++ 49391 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Waxman, may I just ask this question? I don't understand what the import of this order on page 51 is. I have it in front of me. What did that do? Is it anything different immediately after the order entered than --
06-116 +++$+++ 49392 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Yes, Your Honor. And I think you should -- well, I suppose you could start anywhere. But let's, maybe it would be as well to start on 49a of the joint appendix. In December 15 -- remember, the Guam Organic Act was amended I believe October 30, 19 -- or 2004, and it was silent as to its effect on cases that had already been filed and were pending in the Ninth Circuit. Sua sponte, the Court -- well, actually it was not sua sponte. Almost two months after Congress enacted the Organic Act, the respondent in this case, Governor Camacho filed a motion on December 8 with the Court renewing a previous motion for the Court to expedite its resolution in this case. And Governor Camacho's affidavit in support of that motion is included in the joint appendix. In response to the motion, not telling the Court hey, by the way, it's been nice doing business with you but we have no further truck with your court because Congress passed the statute and you are ipso facto by operation of law no longer in business, the Ninth Circuit issued the order on page 49a that says no opinion in this case can issue until the case of Santos is decided clarifying our continuing certiorari jurisdiction over decisions from the Guam Supreme Court. Then turn to page 50a of the joint appendix. A week later, on December 22, the Court sua sponte issues an order withdrawing and deferring a ruling in this case pending the decision in Santos. Santos is then decided in January. And on February 1, the Court issues an order in this pending case saying okay, it's resubmitted to the panel. And shortly thereafter, the panel issued the order dismissing this case for lack of jurisdiction, and from that date we filed a timely petition for certiorari. Now the contention of the respondent in this case that the attorney general should immediately upon enactment of the Organic Act amendment have also filed a petition with this Court would do one of two things. It either would have put this Court in the position of determining the effect of the amendment at the very same time that the Ninth Circuit was doing so, which is a state of affairs that this Court has repeatedly rejected, most notably in Andrews versus Virginia Railway, or it would have amounted to nothing more than what this Court has called, quote, "the filing of a redundant slip of paper."
06-116 +++$+++ 49393 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, am I wrong? I thought that the Attorney General of Guam did file cert in some cases that are pending, or am I wrong on that?
06-116 +++$+++ 49394 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The attorney -- there were two cases in which the Guam Supreme Court issued a final -- its own final ruling after the October 30, 2004 amendment of the Organic Act. And in that instance, the Organic Act was in effect. He filed a petition for a writ of certiorari in this Court. There were two cases that were pending in the Ninth Circuit and over which the Ninth Circuit had granted the writ, this case and Santos. In Santos, but not in this case, the Court asked the parties to file supplemental briefs with respect to the Court's continued jurisdiction, and the attorney general did so in this case, and it's discussed in our reply brief.
06-116 +++$+++ 49395 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Waxman, going back to what you just said, isn't a third possibility, the most likely possibility, that this Court would simply hold the petition if there were -- if the attorney general filed a cert petition here while the Ninth Circuit had not yet disposed of the case, this Court could have just held it because the Ninth Circuit was likely soon to dispose of it.
06-116 +++$+++ 49396 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the attorney general could have filed a petition for writ of certiorari before judgment in this Court, you know, at any time prior to the time that the Ninth Circuit issued its order dismissing jurisdiction. This Court has said uniformly outside the special context of three-judge courts that it will not require the mere filing of a redundant piece of paper, to quote the Colville Indian Reservation case, and it has declined to extend this well, why don't you just file a notice of appeal.
06-116 +++$+++ 49397 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There's no sense in which it's redundant, though. It would have been the first piece of paper that this Court would have seen in the matter.
06-116 +++$+++ 49398 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. But that is actually what this Court was referring to in the Colville Indian Reservation case and other cases in calling it redundant in the sense that it was identical or effectively identical to a piece of paper that had invoked the jurisdiction of another court at the same time. In the three-judge court context, Justice Ginsburg, although this Court's jurisdiction to hear direct appeals in three-judge courts has been greatly reduced since the 1950s and sixties and early seventies, there are certain instances that this Court has realized where it is unclear whether an appeal lies to a regional court of appeals or to this Court and it is unavoidable there that you would file a notice of appeal in both instances; but this is not a situation in which there was any uncertainty about where the petition for a writ of certiorari from the Guam Supreme Court's decision had to be filed. The Organic Act said the Ninth Circuit had certiorari jurisdiction. The Ninth Circuit granted the petition in this case and had assumed authority over it, and so --
06-116 +++$+++ 49399 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But isn't it just the case -- you've made several arguments, but you have a case that's lodged in the court of appeals. It's not simply a petition there. They have accepted it for review.
06-116 +++$+++ 49400 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
06-116 +++$+++ 49401 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So in the normal course when you have a district court decision, a trial court decision, then you're on appeal and the case is fully lodged in the court of appeals, it's like the judgment is suspended until the appellate court is done. So you have no final judgment that is properly taken anyplace else until that judgment is entered. I think that's the essence of your argument, isn't it?
06-116 +++$+++ 49402 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and in fact -- I mean, it's -- I don't think that anything actually turns on this in the context of this case, but it is quite significant that at the time -- there has yet never been any appellate determination of the substantive question in this case. The Guam Supreme Court considered this as a court of first instance that original petition was filed in the Guam Supreme Court. And the Ninth Circuit Court of Appeals at the time that the attorney general filed the petition for a writ of certiorari was the only place the attorney general of Guam could go to get review of this construction by a territorial court sitting as a trial court in the first instance of an act of Congress.
06-116 +++$+++ 49403 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does it make any difference that the review was discretionary in the Ninth Circuit? What if before the act was passed there was an appeal as of right to the Ninth Circuit? Wouldn't your argument be exactly the same?
06-116 +++$+++ 49404 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be exactly the same. We just think that, given the fact that this is an instance in which the Ninth Circuit granted the writ of certiorari and issued both before -- both before the amendment and after the amendment and both before Santos and after Santos orders reflecting the fact that it believed it continued to have authority over this case, the appropriate outcome in this case is more straightforward than it might be in some other closer instances.
06-116 +++$+++ 49405 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Perhaps you should go on to the merits.
06-116 +++$+++ 49406 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
06-116 +++$+++ 49407 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And on that I have a preliminary question, because we have a new attorney general and the question is whether the new attorney general continues to oppose the legislature and the governor on this bond issue. Do -- in other words, do we still have a case or controversy?
06-116 +++$+++ 49408 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Justice Ginsburg, we do. I have spoken personally and repeatedly with the attorney general, who is with me at counsel table, who has instructed me unequivocally to continue vigorously to advocate the construction of the Organic Act that reflected in our petition and in our merits and reply brief.
06-116 +++$+++ 49409 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I have a more basic question, whether we had a case or controversy to start with. This is kind of an intramural dispute between two Guamanian officials about what Guam's position should be with respect to the Organic Act and I'm wondering why that's a justiciable controversy under Article III. The cases you cited in your petition all involved on its -- only facially intra -- interbranch disputes within the Federal Government; but the agencies in those cases always -- were representing a real party in interest. United States versus ICC, the ICC was actually the railroad in whose favor the had commission ruled. Why shouldn't we just let Guam figure out its position on its own and then when a private party with standing challenges something then we'll have a case or controversy.
06-116 +++$+++ 49410 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Mr. Chief Justice, this is actually an a fortiori. If you don't agree with me and you think that there really wasn't a case or controversy, then we would respectfully submit the appropriate resolution would be to dismiss and vacate the Guam Supreme Court's decision so that the attorney general --
06-116 +++$+++ 49411 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh, no. Guam -- presumably, some state courts issue advisory opinions. We don't -- that's their business. It's just a question of whether we have jurisdiction to address the question in that context.
06-116 +++$+++ 49412 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Indeed. But here's the situation here, and this is why I think it's an a fortiori case. The attorney general and the governor of Guam are each separately elected. They each have non-discretionary obligations under Guam law in addition to their obligation to interpret and enforce the Constitution and laws of the United States. The attorney general cannot be removed by, by the governor, by Guam law, unlike the case in many of these Federal executive branch intramural disputes; and she is required by Guam law in any instance in which the governor and the legislature attempt to borrow money subject to the full faith and credit of the territory to certify that such borrowing is lawful. And in this instance, therefore, she is, as the unremovable elected chief law enforcement of the territory, she is required both to properly apply the Federal law that, the Organic Act that constitutes Guam's constitution and Guam territorial law which requires her affirmatively to certify the legality of the proposed buy-in.
06-116 +++$+++ 49413 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Except that she is removable by election, and that is indeed what has happened. And I understand that one of the issues in the election was precisely whether this borrowing authority existed or not. And if that's the case, you have a new attorney general that presumably as an original matter would not do what the prior attorney general did.
06-116 +++$+++ 49414 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia --
06-116 +++$+++ 49415 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it is an intrabranch dispute that can be resolved by the electorate essentially.
06-116 +++$+++ 49416 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There may very -- it may very well occur. In fact, there either is or imminently will be a proposed additional borrowing of $123 million proposed by the governor to the legislature, and that is going to require this attorney general to ascertain, presumably prior to the time this Court -- well, I won't presume, but perhaps before this Court renders a decision in this case were it to, whether she can or cannot certify that. Now, the answer to that question will turn in the first instance -- and she's not going to be reelected before then. She can't be removed by the governor before then. Her position is that if she ascertains that in the form in which it's enacted that proposed borrowing implicates, you know, constitutes debt within the meaning of section 11, she will not sign that legislation. And that, it seems to me, during the campaign -- of course, none of this is in the record -- her position was that she would continue to pursue this litigation in the Supreme Court, which is why she's here.
06-116 +++$+++ 49417 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I guess I'm not quite sure what that means. I mean, it's one thing to say I will pursue the litigation because it would be a good thing to have a definitive answer from someone other than the governor or me. Is it her position at the present time that the position of her predecessor is correct or not?
06-116 +++$+++ 49418 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is her position that if she were presented tomorrow with a borrowing that would exceed the debt caps under the position of the attorney general in this case, she will not sign it because that constitutes her interpretation of the law.
06-116 +++$+++ 49419 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So she adopts the interpretation of her predecessor?
06-116 +++$+++ 49420 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
06-116 +++$+++ 49421 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I have a question, if I can, if we should reach the merits of the case --
06-116 +++$+++ 49422 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think you should reach the merits of the case.
06-116 +++$+++ 49423 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know that. That isn't it. I have a question about -- I have a question about the merits.
06-116 +++$+++ 49424 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay. I have four reasons why I think we are correct --
06-116 +++$+++ 49425 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know, but I have a question I'd like you to go into.
06-116 +++$+++ 49426 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
06-116 +++$+++ 49427 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I looked up, my law clerk has, and found eight States that seem roughly comparable. Those that go to assessed value, every single one of them -- and most of them do -- they have the word like "assessment. The only comparable places we found are Puerto Rico, Philippines in 1916, and Guam here which don't use the word "assessment," but use the words "aggregate taxable value." All right. Now, what's happened in those places? We know what's happening in Guam. I can't -- with the Philippines in 1916 and Puerto Rico, there ought to be some experience there even if we couldn't find a case how they treated it.
06-116 +++$+++ 49428 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, they -- what's happening in all those jurisdictions will certainly consume at least the rest of the balance of my time. The simple answer is that -- is the following. There are -- looking first at the States, there are States that use the term "the valuation." There are States that use "the assessed valuation," "aggregate assessed valuation," and there are a few States that use "tax valuation." It is uniformly the case in the States and elsewhere that the word "assessed" in this context is understood to refer to the valuation against which the property tax is based, whether that happens to be a place where it is full value or a fractional value; but it is also the case that at the time that the Guam Supreme -- that the Guam Organic Act was enacted fractional valuation was a commonplace for purposes of assessing property tax. Now, in the territories --
06-116 +++$+++ 49429 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Try Utah, try Iowa. Try --
06-116 +++$+++ 49430 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There were three States that we discussed, Passy is one, Halsey is the other and I can't remember the name of the other one, where they used -- where the State constitution just said "aggregate valuation" or "the valuation" and the State supreme court said: There's no modifier for valuation; that must mean full value. There are, conversely, the State supreme court in Fishburn in the Illinois context and in the Indiana context where even that formulation, "the valuation," the State supreme court said: Come on, it is -- the debt limitation is always calculated --
06-116 +++$+++ 49431 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Waxman, can I ask you this, just about Guam, not about the other territories. Is there anything in the Organic Act that would prevent Guam from changing the assessed percentage from 35 percent to 100 or 150?
06-116 +++$+++ 49432 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely nothing.
06-116 +++$+++ 49433 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So there's no, no limit in the Organic Act of any real meaning?
06-116 +++$+++ 49434 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's -- the limit in the Organic Act, and it makes it entirely consistent with all of the other territories that I -- are not that many and I will explicate -- which is the uniform rule has been that the basis for valuation of property against which the debt limitation percentage is multiplied is the same as the valuation of property against which the property taxes apply. And in the territories the Congress has used essentially two formulations: In the Springer Act it was "assessed value of taxable property." In Alaska, it was "aggregate taxable value." In Guam it's "aggregate tax valuation." In Hawaii, it was "assessed value;" in the Northern Marianas, "aggregate assessed valuation." The Philippines, which you mentioned, is a particularly instructive example because in 1902 and 1905 it was "assessed valuation," but then in 1916 and 1922, it was altered to be "aggregate tax valuation." And then the Virgin -- Puerto Rico is "aggregate tax valuation" and the virgin Islands, which we've discussed, is "aggregate assessed valuation." Now, the legislative histories of these provisions, including the Guam provision, are lengthy, obscure and frankly have been very difficult to obtain because in many instances the hearings are unreported. And we have been receiving the legislative history, particularly the unpublished legislative histories, of these provisions up to and including Saturday because in the 11 days over the Christmas holiday in which we did our reply brief we simply could not get hearing, transcripts of hearings that were conducted in 1949 in that Agana, Guam. But we are prepared to lodge the relevant provisions with the Court for the Court, and I don't want to, therefore don't want to make any argument about it, but I don't want to say that these words --
06-116 +++$+++ 49435 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Please don't. (Laughter.)
06-116 +++$+++ 49436 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the --
06-116 +++$+++ 49437 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ My question is the following. In Puerto Rico and in the Philippines after 1916, and in Alaska, were there any instances in which they issued bonds that exceeded the 10 percent of the assessed value as opposed to the aggregate market value? They either did or didn't and that shouldn't be hard to find out.
06-116 +++$+++ 49438 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that would be hard to find out, and I don't know. I do know that there is legislative history with respect to the use of the word "assessed" and tax in this context both in Puerto Rico and in the Philippines. I don't know about Alaska.
06-116 +++$+++ 49439 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Just on the merits, the first thing that the tax authorities have to do is they have to value the property.
06-116 +++$+++ 49440 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
06-116 +++$+++ 49441 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And they're valuing it for tax purposes, so that sounds like tax valuation.
06-116 +++$+++ 49442 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not -- our argument is that the word "tax valuation" has to have meaning; and the plainest meaning is the meaning, we respectfully submit, the most natural meaning of "tax valuation" is the valuation that is used by Guam for the calculation of tax. And that's true not only as a matter of plain language, but for three other reasons. First of all, as I indicated, it puts Guam in harmony with the regime that has existed in every other U.S. territory in which the value of property against which the debt limitation rate is assessed is the same as the value of property against which the tax rate is assessed. And secondly, or thirdly, that fully accords with the statutory and legislative history both with respect to the territories and the states that reflects that it has always been understood that tax valuation and assessed valuation are equivalent in this context, and understanding that furthers Congress's consistent goal of restraining borrowing by territories. And finally, interpreting tax to mean full renders the word tax all but meaningless. I grant you, Justice Kennedy, that it is possible to come up with a meaning. It is not a meaning that the Guam Supreme Court adopted but it is a possible meaning; but the Guam Supreme Court interprets -- actually said in its opinion, tax has to mean something. It interpreted tax not to modify valuation, the word that follows it, but to modify the word "property," and to read it as taxable property, which is with all respect plainly wrong.
06-116 +++$+++ 49443 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There are big lenders in the United States and those people don't fool around. They get opinions. And they lend money to Puerto Rico or they lend money to some of these places. They're going to have opinion letters. And those opinion letters are going to say whether they think in their opinion this is over reaching to many bonds or not. And Of course, I would think those opinion letters would say for Puerto Rico, what the words aggregate tax valuation mean. They might or might not. In other words, I'm trying to find ways of getting the tax.
06-116 +++$+++ 49444 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay. I don't have any such opinion letters. And I would therefore, much like to reserve at least a minute for rebuttal. But with respect --
06-116 +++$+++ 49445 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Now Mr. Waxman, we've taken a fair amount of your time before you got to the merits. So we'll give you a couple of minutes for rebuttal. Why don't you answer that.
06-116 +++$+++ 49446 +++$+++ TRUE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. With respect to Puerto Rico, Puerto Rico happens to be a situation which so far as we have been able to ascertain, the law actually requires that for purposes of determining valuation for application of the tax rate, the assessed rate is required to be the actual value, as is the case in the Virgin Islands. So that distinction wouldn't exist. On the other hand, in the Philippines, it is clear from 1902 on that a system of fractional valuation was in place. Now, getting -- figuring out what actually happened in the Philippines way back when, when it was a territory of the United States, has been challenging and its may very well be that there is information; but simply, simply obtaining for example, the -- the three unpublished hearings with respect to the Virgin Islands legislation in 1949 has been actually surprisingly -- surprisingly challenging. If I may reserve the balance of my time?
06-116 +++$+++ 49447 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Waxman. Ms. Brinkmann?
06-116 +++$+++ 49449 +++$+++ FALSE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: This case should be dismissed for want of jurisdiction because the certiorari petition filed in this Court to review the judgment of the Guam Supreme Court was untimely. If the Court were nonetheless to reach the merits of the opinion of the case, the opinion of the Guam Supreme Court interpreting section 11 of the Organic Act should be affirmed. There are three principal reasons supporting both of these positions. First, on the dismissal: Dismissal is required, one, because when the Ninth Circuit was divested of authority to adjudicate the merits of the case, on October 30th, 2004, this Court was then the only court that could review that judgment.
06-116 +++$+++ 49450 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Ms. Brinkmann, Congress sometimes withdraws jurisdictions from courts, but while the case is spending it isn't until the court issues the order -- there's no automatic dismissal of the case when Congress passes an act. There is a case lodged in the court, and that court will follow Congress's directions and dismiss it. But until it does, its hold final judgment. The judgment of the Guam Supreme Court is suspended while it's sub judicata before the Ninth Circuit, and then when the Ninth Circuit acts, then there is a trigger. But until there isn't.
06-116 +++$+++ 49451 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we respectfully disagree. We don't believe that there was any suspension of the time for filing once the Ninth Circuit was divested of jurisdiction. This Court as long ago as the Eisenberg case has recognized that the time for filing certiorari is suspended so long as a lower court has jurisdiction to adjudicate the merits of the case. The Court reinforced that more recently --
06-116 +++$+++ 49452 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What if, what if you have an ambiguous statute where it really is not clear whether it applies to pending cases or not? What, what -- you say if it turns out after the fact that it does apply to pending cases, you are out of time, if you haven't immediately filed here while the case is still -- is still pending.
06-116 +++$+++ 49453 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, that is the situation that the Court confronts in the three-judge district court cases within in the instances in which there was a mistake made as to where the appeal should be taken. And the Court has jurisdiction to decide, the jurisdiction in those instances has vacated and remanded the order. I want to emphasize to this Court that in the Santos case, Petitioner requested that the Ninth Circuit remand the order to the Guam Supreme Court, and in the language of this Court, what that does is it refreshes the judgment of the Guam Supreme Court so that it can timely brought here. If Petitioner --
06-116 +++$+++ 49454 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask, would the Ninth Circuit have had jurisdiction after October 30, 2004 to vacate the judgment of the Guam Supreme Court and send the case back?
06-116 +++$+++ 49455 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. We believe under the authority of this Court in those three-judge courts, that is the solution that this Court has established --
06-116 +++$+++ 49456 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ We did that. "We don't have jurisdiction but we are nevertheless going to enter the following order, which presumably depends on our having jurisdiction, that the judgment is vacated," assuming it's bad. You agree that the Ninth Circuit could have done that?
06-116 +++$+++ 49457 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. Petitioner agreed that, he asked for that relief in the Santos case.
06-116 +++$+++ 49458 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't that subject to gamesmanship? Parties that are out of time in this Court going to a lower court and saying well, just vacate and re-enter, and then I can start all over again? We've discouraged that.
06-116 +++$+++ 49459 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We think not, Your Honor. In the Donovan Ricky Richland case, the Court made clear you would not vacate it when it was simply a failure to obey the rules. The Court refused to vacate and remand in that case, as we point out in our brief. This is a case such as Justice Scalia was positing where there is an actual issue of, colorable question of jurisdiction. The proper course would to be to challenge, and here Petitioner did not even try to litigate the question, did not file any brief after Santos came down, never tried to distinguish this case from Santos. He merely waited and did not timely pursue the writ of the Guam Supreme Court, the judgment that was final at that point in time.
06-116 +++$+++ 49460 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you'd say Santos, then, is -- is -- is the Rubicon? Not the enactment of the statute, but Santos?
06-116 +++$+++ 49461 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No we believe in this particular instance, particularly on, with the clarity under Brunner, of the divestiture of the Ninth Circuit jurisdiction here. This is not a rule of force.
06-116 +++$+++ 49462 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah. Your last argument, then, is irrelevant. I mean if it's clear, it doesn't matter what they did before.
06-116 +++$+++ 49463 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I'm suggesting in response to your question, Justice Scalia, that in those other situations where there may be a question, that does not put the Petitioner in a situation of not being able to seek review.
06-116 +++$+++ 49464 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which is not this case.
06-116 +++$+++ 49465 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
06-116 +++$+++ 49466 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The Ninth Circuit would have been without authority to issue the orders in Santos under your reasoning. The Ninth Circuit is powerless because the authority had been transferred by virtue of the statute to this Court, so the Ninth Circuit was wrong in any orders it issued.
06-116 +++$+++ 49467 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, the Ninth Circuit maintained jurisdiction to decide jurisdiction. And indeed if Petitioner had litigated the question of jurisdiction they could have brought a writ to the Ninth Circuit and come to this Court and litigated the question of jurisdiction. If the Court had found there was jurisdiction it could have reached the merits. If the Court had found it was not, there was no jurisdiction, it would have -- in the three-judge courts and said no, you need to come directly up from the Guam Supreme Court with vacate and remand for a fresh judgment, and then you come to the Guam Supreme Court.
06-116 +++$+++ 49468 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask, how much time did the Petitioners have after the statute passed? 90 days? Or the interval of 90 days minus whatever had been run?
06-116 +++$+++ 49469 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 90 days Your Honor. We believe that the --
06-116 +++$+++ 49470 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why would that be so?
06-116 +++$+++ 49471 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The timely petition to the Ninth Circuit and the grant of certiorari would have suspended the finality of the Guam Supreme Court judgment. Once Congress in its authority to demarcate the jurisdictions of the lower Federal courts had passed that the statute, it was no -- for no court to question that, was divested jurisdiction at that time. The Guam Supreme Court judgment was again final and it had 90 days to petition. I should say there are other cases. Eisenberg makes clear that time was not suspended when the court below does not have jurisdiction. The Market Street Railways case makes clear when as a matter of law the lower court no longer can act on the case, the time is no longer suspended. And the Jesse Oil case makes clear that the party can not rely on a false exercise of jurisdiction by the lower court.
06-116 +++$+++ 49472 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, in this case if it was not a false exercise in Santos, why was it a false exercise here?
06-116 +++$+++ 49473 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was not a false exercise, Your Honor, until October 30 of 2004. At that time Congress spoke. And what that --
06-116 +++$+++ 49474 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But it, it, it was still an exercise -- it was an exercise in this case of the same authority that it was purporting to exercise in Santos, which you conceded. And that is the authority to determine its own jurisdiction. I presume that jurisdiction is determined on a case by case basis when a case has already been accepted by the Court, and as Justice Ginsburg said is sub judice. So if there was, if there was jurisdiction to determine jurisdiction in Santos, I don't see why there wasn't likewise jurisdiction to determine it here.
06-116 +++$+++ 49475 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was jurisdiction, Your Honor. Our position is the same in both of those cases. And indeed if that issue of jurisdiction had been litigated in this case, Petitioner could have brought a writ to the Ninth Circuit judgment and litigated jurisdiction in this case. But if the courts ultimately determined that there was not jurisdiction, it had --
06-116 +++$+++ 49476 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Once the -- once the Ninth Circuit determined that it had no longer a continuing jurisdiction to do anything more than it did, in the order that finally dismissed this, the other side wasn't bound to litigate that here. All the other side is saying is that up to that point, the court was determining its own jurisdiction. And therefore it is only when it determined that its jurisdiction no longer existed, that the filing period began to run. So it seems to me that the crucial question is if it could determine its own jurisdiction in Santos which you concede, why can't it determine its own jurisdiction here?
06-116 +++$+++ 49477 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It can, Your Honor, but --
06-116 +++$+++ 49478 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Isn't that what it was doing?
06-116 +++$+++ 49479 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but if it is found there is no jurisdiction, then the party cannot have relied on that to suspend --
06-116 +++$+++ 49480 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why -- why can't it?
06-116 +++$+++ 49481 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because this Court's cases make clear, the Wynn, Eisenberg case --
06-116 +++$+++ 49482 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But those -- those -- are they -- and you have got me here. The argument here is that the, that the Ninth Circuit already had taken jurisdiction in this case. It wasn't a question of whether to accept it or not.
06-116 +++$+++ 49483 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And in those cases, Your Honor, the courts also -- appellate courts were undoubtedly exercising jurisdiction in those cases. And in Eisenberg, for example, it was a request to recall the remittitur. It took months for the California Supreme Court to decide that case. And they said yes, there's a standard where you can do that there -- the court. We find you don't make it, so we don't have jurisdiction. They came to this Court and said out of time. You had to have sought our review timely, from the final judgment of the California Supreme Court, you could not wait for that period of time in which the California Supreme Court decided to not have jurisdiction.
06-116 +++$+++ 49484 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I --
06-116 +++$+++ 49485 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is a well established Federal jurisdiction principle.
06-116 +++$+++ 49486 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I guess I'm still at a loss on the point that for one purpose, the purpose of the 90-day filing period, you're saying that the Ninth Circuit did not have jurisdiction; but for another purpose, the determination of whether it had jurisdiction, you're saying it does have jurisdiction. Am I misunderstanding your argument?
06-116 +++$+++ 49487 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe so. I think that's very common --
06-116 +++$+++ 49488 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't see how you can have it both ways.
06-116 +++$+++ 49489 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well this Court has made clear, for example, in the three-judge district court cases, that this Court has jurisdiction when an appeal comes before it, to decide whether or not it has jurisdiction over that appeal. When parties have made --
06-116 +++$+++ 49490 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Maybe I should say I don't know why this Court can have it both ways. (Laughter.)
06-116 +++$+++ 49491 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Don't, don't we have to choose one analytical path or the other analytical path?
06-116 +++$+++ 49492 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, I think it rests in this whole idea that courts have to have jurisdiction to decide jurisdiction. But when you're --
06-116 +++$+++ 49493 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And then when they decide they didn't have jurisdiction, then it's retroactive? That's what your position is?
06-116 +++$+++ 49494 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
06-116 +++$+++ 49495 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The Ninth Circuit has jurisdiction this whole time. But the day that it issues its decision dismissing this case, then it is retroactive back to the date that Congress passed the statute? That's what you seem to be saying.
06-116 +++$+++ 49496 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The divestiture of the jurisdiction occurred on the date that Congress's statute went into effect.
06-116 +++$+++ 49497 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What if, what if the Ninth Circuit had incorrectly held that it had jurisdiction? Would it be the same?
06-116 +++$+++ 49498 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that would have been the scenario I discussed before, the parties could have litigated that. If it came to this Court, and the Court found there was jurisdiction, so be it. We think it would have been a wrong ruling. And if it came to this Court and this Court reversed, that is the scenario we discussed, where in the three-judge district court when that turns out, the court says we don't have jurisdiction, you needed to come up through the other route, we will dismiss, vacate and send back and come up. Now I have to urge on the Court there's a purpose for that. In those cases the party is actively believing and pursuing the view that jurisdiction exists. In this case that was not the scenario.
06-116 +++$+++ 49499 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But those cases really are not on point. Because there was a vast confusion in the days when there was a three-judge court, do I file a jurisdictional statement, do I file a cert petition? Sometimes this Court said we'll treat the jurisdictional statement as a cert petition. But those existed from the beginning. Here there's a case lodged in the Court of Appeals, the Court of Appeals had every basis of jurisdiction. This was no big shakes about it. It wasn't, did they file the right paper? And then Congress does something. And the Court would follow suit. It just seems to me very strange to say the court has jurisdiction to decide whether it has jurisdiction, but if it decides it doesn't, then the date of that order is not the critical date, but you go back to the date that Congress passed the law.
06-116 +++$+++ 49500 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think that this Court addressed this scenario, and one of two things could have happened. As you pointed out during Petitioner's argument, it would have been an easy thing to file a protective cert position. This Court is well familiar, has recognized the appropriate of protective filings -- certainly in the Federal habeas situation where there are mixed petitions and we go back in thought, protective filing within the 90-day period would have been appropriate. And I urge, particularly because Petitioner filed a brief within that period in the Santos case, recognizing that Brunner required that there was a divestiture of Ninth Circuit jurisdiction as of the day of the statute enactment. Even if there had not been that protective filing, if Petitioner had a colorable jurisdiction argument and litigated it, this Court has made clear that once that has been determined adversely, there can be a vacation and remand back to the Guam Supreme Court so that judgment can be brought up. I would like to turn to the merits if I could, Your Honor. We believe that the well-reasoned opinion of the Guam Supreme Court should be affirmed for three reasons. First, the interpretation takes full account of the text of the statute. As Justice Kennedy was mentioning before, the purpose of this is to have a debt limitation that is based on the property in Guam and the tax valuation of that property in Guam. The tax valuation is the valuation of the property that is subject to tax. This is not an original interpretation of this provision. In the Superior Court opinion from 1989 that we attached to our brief in opposition, the Guam Supreme Court came to the same conclusion and interpretation of this language. We think it is an eminently reasonable and correct interpretation, particularly in light of the absence of the word as set.
06-116 +++$+++ 49501 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But don't you know that your interpretation reads the word tax out of this statute? I mean your position would be exactly the same if it just said 10 percent of the value of the property in Guam.
06-116 +++$+++ 49502 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. That would include the tax-exempt property. That would be a much larger number.
06-116 +++$+++ 49503 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's where I'm having trouble on your side. I can't get very far with a history of other places. Apparently I can't get there. Tax doesn't seem to help me very much. So I thought, well, one thing is clear. What they're trying to do here is they take out of the box, if you look at it, take all of the list of property that they don't tax. I guess a school, maybe some tax exempt business or something.
06-116 +++$+++ 49504 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Now their reason for doing that must be that those people who they've exempted entirely by statute are not going to be much help in paying Guam. Well, if that's true, isn't precisely the same thing true of the two-thirds of the property that they don't take into account when they set their taxes?
06-116 +++$+++ 49505 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor.
06-116 +++$+++ 49506 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because?
06-116 +++$+++ 49507 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because that property in Guam is still securing this debt to a certain degree. It is property that must be valued for tax purposes.
06-116 +++$+++ 49508 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. It doesn't secure it one bit if, in fact, the tax statute says you can't take it into account when you set your taxes. Just as is true of, let's say, a tax free business of some kind. Now Guam doesn't have to do that, it could change its statute, but so could it change its statute in respect to a school, a university, or whatever the other things are that are off those tax rolls. You know that, you know, your answer was circular. That assumes that the whole property is, but it isn't.
06-116 +++$+++ 49509 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, as a matter of textual interpretation as to the tax valuation of property in Guam, you look at the property in Guam and then you have to take the tax valuation. You're taking the property that is subject to tax. We believe that this is the intent of Congress also for two reasons, Justice Breyer, that addressed your issues before about one suggestion that Guam could change this. The purpose of Congress here was to set a meaningful debt limit. That is what real value appraisal value does. It is an economic determination of currency fact.
06-116 +++$+++ 49510 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, why why does it do any more than the 35 percent value? That sets a definite limit.
06-116 +++$+++ 49511 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because that could be changed at the whim of the legislature, Your Honor, and the legislature could change that assessment to increase the debt limit and -- while lowering taxes and altering any tax liability.
06-116 +++$+++ 49512 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ With respect to much of the tax exempt property, that could be changed by the legislature as well.
06-116 +++$+++ 49513 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But when you're looking to a bond debt limitation, you're looking at the bond market, you're looking at investors, the certainty of an appraisal value, actual real value, and --
06-116 +++$+++ 49514 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it doesn't have to be 100 percent. They could change what you call the tax valuation from 100 percent of the fair value to 150 percent. There's really much less to this case than meets the eye. I mean, Guam is going to be able to fiddle with this thing no matter how you come out.
06-116 +++$+++ 49515 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't believe that was the intent of Congress.
06-116 +++$+++ 49516 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, whether it was their intent or not, is it not the case that Guam could say all property will be valued at 150 percent of its fair market value and we will then impose a 1 percent real estate tax instead of the 2 percent, or instead of the 1.5 percent we had before?
06-116 +++$+++ 49517 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, they certainly could do that as a matter of fact. We don't believe that should alter the debt limitation Congress enacted, and that's precisely why we believe that the Guam Supreme Court opinion gives a meaningful interpretation of the purpose of Congress and gives a real debt limitation that exactly should be affirmed as exactly the purpose that Congress intended. And that's why the assessed value can be so easily manipulated, and is not a reasonable interpretation. I also would like to address Justice Breyer's question about the --
06-116 +++$+++ 49518 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, just before you go there, if I were a bond investor, I would much prefer issuing bonds if it's the lower value, if it's the assessed value. I'm just more secure.
06-116 +++$+++ 49519 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the uncertainty, however, that the debt limitation is a real limitation that serves the purpose of Congress in order to have some kind of fiscal responsibility to the Territory is what is furthered by the real limitation of having a concrete appraisal full value as a basis for the calculations.
06-116 +++$+++ 49520 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you do have a concrete appraisal, but it's just reduced to 35 percent.
06-116 +++$+++ 49521 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that can be changed at the whim of the legislature without any accountability to the voters because at the same time that they change the tax rate and not alter any tax liability.
06-116 +++$+++ 49522 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, you say without any responsibility to the voters. I mean, the voters are going to know that if the valuation is changed and the tax rate isn't, their taxes are going up. So I assume the voters are going to be vigilant to what is going on and I assume they have telephones and they'll call their representatives. Why is this -- why do you posit this sort of failure of representative democracy?
06-116 +++$+++ 49523 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because I assume the tax rate will be changed, so it's not just -- there's no --
06-116 +++$+++ 49524 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But if the tax rate is changed, they're going to call twice.
06-116 +++$+++ 49525 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. The tax rate will be changed to be lower to maintain the same level, so there would be no -- because the legislature isn't acting to address any tax liability. They're simply asking to manipulate the debt limitation, which is very contrary to the purpose and any meaningful message that debt limitation --
06-116 +++$+++ 49526 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But they're going to know this. I mean, they're going to be, if they are concerned at all about it, they'll be in touch with their representatives.
06-116 +++$+++ 49527 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, of course the bond issuance here also goes to the Guam legislature and they are held accountable for that in the political arena. I would suggest, Your Honor, the question about -- I agree with petitioner's counsel about the certainty of determining some of this historical material is difficult and not precise. But we have gone back and looked at the contemporaneous statutes in each of these territorial jurisdictions, and as Mr. Waxman pointed out, Puerto Rico it turns out actually uses the actual value, all of them use the actual value.
06-116 +++$+++ 49528 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do they tax on the basis of the --
06-116 +++$+++ 49529 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yeah.
06-116 +++$+++ 49530 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ This is a fractional, this 35 percent. In the other places, do they use as the -- the value taxed 100 percent of the property --
06-116 +++$+++ 49531 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yeah.
06-116 +++$+++ 49532 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- and then just have a lower tax rate?
06-116 +++$+++ 49533 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
06-116 +++$+++ 49534 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what was the appraisal practice? I mean, in a lot of these jurisdictions you have appraised value that turns out to be 30 percent of the actual market value.
06-116 +++$+++ 49535 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But here, in the Virgin Islands and Alaska, Federal law requires that the taxes be imposed on the actual value. In the Virgin Islands it said your assessment will be actual value. That's why the term assessment was used in the Virgin Islands debt limitation, because that was in a preexisting Federal statute that required assessment be an actual value.
06-116 +++$+++ 49536 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which one? You say they've all used market values?
06-116 +++$+++ 49537 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
06-116 +++$+++ 49538 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, which of the ones that use it have in fact an assessed value that is a percentage of market value?
06-116 +++$+++ 49539 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ None.
06-116 +++$+++ 49540 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Well, that doesn't help us then.
06-116 +++$+++ 49541 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I think it does further the purpose of what Congress was looking to in both the Virgin Islands and Alaska. The requirement for various reasons that they impose their tax on the actual value certainly supports the reasonableness of the interpretation here, Your Honor.
06-116 +++$+++ 49542 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, we could look at Hawaii. In Hawaii they use the word assessed value. They couldn't possibly have wanted it to be market value, I wouldn't think.
06-116 +++$+++ 49543 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the actual --
06-116 +++$+++ 49544 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And in the District of Columbia -- where are we on this? It's something else in D.C. They use assessed value in the Virgin Islands.
06-116 +++$+++ 49545 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The preexisting law in Hawaii before it became a territory had tax imposed on the actual value, and subsequent to the debt limitation, the territorial law also put it on actual value. I would suggest, Your Honor, certainly if there is any debate that there's more than one interpretation of the Organic Act, that deference should be afforded to the Guam Supreme Court's interpretation of that. That is well established under this Court.
06-116 +++$+++ 49546 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But doesn't it -- who is this provision designed to protect, just the Guamanian taxpayers or Federal taxpayers more generally?
06-116 +++$+++ 49547 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's the Guamanians, Your Honor. It is not --
06-116 +++$+++ 49548 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If the Guamanian government runs a deficit, where is the difference made up from?
06-116 +++$+++ 49549 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Most of the income and revenue on Guam comes from the Federal income tax, because unlike on the mainland, the Federal income tax goes to the Guam Treasury rather than the United States Treasury.
06-116 +++$+++ 49550 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I know that any taxes from Guam are returned to Guam. Are additional tax revenues given to Guam other than those that are derived from Guam?
06-116 +++$+++ 49551 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yeah, other financial relationships with the U.S. Government, yes, Your Honor.
06-116 +++$+++ 49552 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So that if the Guamanian Treasury runs into difficulty, it's made up not just by Guamanian taxpayers, but by all Federal taxpayers?
06-116 +++$+++ 49553 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. That's not my understanding of the practice. The encouragement of Congress setting up the independent judiciary and government of Guam has also included fiscal responsibility, and part of that are the bond issuance and the issues that are here before the Court.
06-116 +++$+++ 49554 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I cannot imagine that if a territory of the United States goes belly up, that the United States is not going to foot the bill. I just can't imagine that.
06-116 +++$+++ 49555 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we believe here that the debt limitation is a matter of local concern. It is the Constitution of Guam. And we are not suggesting that the Court affirm an erroneous interpretation at all. This is a more than reasonable interpretation of a theory, well reasoned opinion by the Guam Supreme Court. The Guam Supreme Court has support, it's 17-year old superior court opinion that had reached the same conclusion. That was the only law out there that Guamanians had looked to for the interpretation of those provisions of the Organic Act. It predated the 1993 appraisal. And it took that opinion and did not simply adopt it, but went through and did a very detailed analysis of the test of the statute of the Organic Act, the fact that it did not include the word assessed, which was used 10 months later by Congress in the Virgin Islands.
06-116 +++$+++ 49556 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Miss Brinkmann, just to follow up on Justice Scalia's question, is there any history of the Federal government having to bail out the Guam government for bankruptcy or anything close to that?
06-116 +++$+++ 49557 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, none whatsoever.
06-116 +++$+++ 49558 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And is there anything in the record that tells us what kind of a credit rating Guam has?
06-116 +++$+++ 49559 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, I don't believe it does.
06-116 +++$+++ 49560 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Did this value issue -- I mean, was the borrowing effective given the controversy between, the attorney general refused to sign, did that have any consequences for whether this bond issue went through?
06-116 +++$+++ 49561 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Your Honor. Because of Petitioner's delay for more than a year and a half in a court that did not have jurisdiction, these bonds still have not been able to issue. And Petitioner responded no. As a practical matter, the bond market will not support issuance of these bonds until attempts to undermine their validity have been brought to an end. And so the Guam government has been doing different means of financing in a positive manner. The economy of Guam has returned because of many of the devastating world events have taken, have passed in time, and the economy is recovering. The U.S. military is returning with a very large presence there. But they are still, my understanding, approximately two years behind in getting back tax returns.
06-116 +++$+++ 49562 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In that case, you should want us to exercise jurisdiction, decide it one way or the other.
06-116 +++$+++ 49563 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we believe that it should be dismissed for want of jurisdiction, the Guam Supreme Court opinion stands, and we prevail under that ruling, the Guam Supreme Court's interpretation of Section 11 of the Organic Act.
06-116 +++$+++ 49564 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could you tell me whether the rate of tax is uniform throughout Guam? The rate of real estate tax. Is it an island-wide tax or is it local, county?
06-116 +++$+++ 49565 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is an island-wide tax, Your Honor. Land is taxed at one-quarter of 1 percent and improvements are taxed at 1 percent.
06-116 +++$+++ 49566 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't know why you just didn't raise your assessed value from 30 percent to 100 percent and reduce the rate of tax accordingly.
06-116 +++$+++ 49567 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We don't believe that Congress intended to inject itself into the workings of this local territorial tax mechanism. The various policies --
06-116 +++$+++ 49568 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you still have the option, and I'm just dying to ask the question not having anything to do with the case. Why did they do this? Why did they have -- was it just to make everybody feel good and they think they're ripping off the government because they're getting only a 35 percent value, even though everybody knows they'll just raise the rate if it changes?
06-116 +++$+++ 49569 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is exactly the kind of policy decision that the local governing authority makes about taxes. Actually the Petitioner has a footnote explaining the origin of fractional tax valuation. Indeed, it seems to be consistent with some of the history also that we've seen that there would be informal adjustments of valuations to take into account perhaps poverty, or to take into account less meritorious justifications. And the -- because of the perception or, I believe petitioner calls it the political psychology perhaps, of having such a high rate, that is a policy decision that different taxing authorities make. It should not mean that Guam surrenders two-thirds of its debt limitation. Congress did not use the word assessed and it's a very difficult argument to adopt that by failing to use assessed, they limited it to an assessed value that surrendered two-thirds of the Guam territorial debt limitation contrary to all --
06-116 +++$+++ 49570 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, but you talked about this as the deference we owe to the Guam Supreme Court. This is a Federal statute, right? This was passed by Congress.
06-116 +++$+++ 49571 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, and in the Santa Fe case versus Friday, with all due respect, Petitioner is incorrect that that addressed territorial laws. That was a provision in the New Mexico Organic Act that fed up the jurisdiction of district courts that Congress created in New Mexico. There was a provision in that Organic Act provision of New Mexico that said the jurisdiction of those courts was as limited as law. That passage was interepreted in this Court in Friday looking at another Federal statute and some territorial laws. I would direct the Court to the briefs in the case, that opinion itself was quite brief, and when you look at the explications of the party, it simply reinforces that the Court there was construing an organic act, a Federal statue, and local territorial statutes, and there directly said that they should defer to the local understanding of the courts unless it is clearly wrong. So we urge that that, too, should be --
06-116 +++$+++ 49572 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does that apply to all the provisions of the Organic Act? I mean, there are provisions there addressing the jurisdictional issue that we are considering here as well. Do we defer to the Guam Supreme Court's view on that?
06-116 +++$+++ 49573 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I see my time is up, but if you'd like me to respond?
06-116 +++$+++ 49574 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's fine.
06-116 +++$+++ 49575 +++$+++ TRUE +++$+++ MS. BRINKMANN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that you could look to your area of administrative deference, for example, under Chevron, where you do also defer to the authority of an agency, the interpretation of an agency. The determination of its own authority the Court has upheld. Thank you, Your Honor.
06-116 +++$+++ 49576 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Brinkmann. Mr. Waxman, we'll give you 3 minutes.
06-116 +++$+++ 49578 +++$+++ FALSE +++$+++ MR. WAXMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. I want to direct the Court -- in response to two questions that were asked of Ms. Brinkmann, I want to direct the court to two pages of the Guam Supreme Court's opinion, and I'm going to summarize them for you now, but for purposes of what's the difference between in terms of bond holders, the fact that certain property isn't taxed at all and certain property is only taxed at 35 percent, what's important to note here, and that is reflected at page 26a of the petition appendix, the tax roll on Guam includes a valuation of all nontaxable property. The Guam Supreme Court then has to go back and say, well, of this approximately 183 million is exempt. So in Guam, the tax assessor and the Guam courts are treating property that is wholly exempt from taxation the same way that it treats the two-thirds of fair market value that is exempt from application of the tax rate. Secondly, in response to Justice Kennedy's questions about why are we focusing -- why wouldn't bond holders focus on assessed valuation rather than the rest and what difference does all of this make, page 18a of the joint appendix, which is footnote 8 of the Guam Supreme Court's opinion, which comes in the -- the portion of the opinion where the court says, look, "tax" has to mean something; we think it means taxable property, not tax valuation. The Guam Supreme Court in its opinion in footnote 8, quoting from some language from a dissenting opinion in the Hawaii Supreme Court, says as follows, and I'm quoting from footnote 8: "It has been argued that the use of a percentage of assessed value as a measure of the State debt limit is without significance," now skipping the rest of the sentence. "The people that buy the bonds are interested in the ratio of your debt to your assessed value because, while all of the tax revenues of the State or the counties naturally are available for the payment of the debt, it's been customary for bond holders to look to the real property tax as their collateral." That is the authority on which the Guam Supreme Court relied and it applies to this case and it explain why the word "assessed" and the word "taxable" have been construed synonymously and interchangeably in the legislative history of these territorial statutes and why assessed value is understood to be usually fractional value for reasons of political psychology that Ms. Brinkmann addressed, but even where it's full value, it is only pursuant to a determination that for assessment purposes full value should be used.
06-116 +++$+++ 49579 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
06-157 +++$+++ 49583 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We will hear argument this morning in case 06-157, Hein versus Freedom From Religion Foundation. General Clement.
06-157 +++$+++ 49585 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: In Flast against Cohen, this Court recognized narrow circumstances in which a taxpayer could satisfy the requirements of Article III in challenging a congressional exercise of its spending and taxing authority. This court in doing so rejected the suggestion of Justice Douglas that it allow all taxpayers to sue in all manner of claims, as well as the slightly more modest suggestion of Justices Stewart and Fortas that the Court allow taxpayer standing for all establishment clause challenges. This Court's subsequent cases such as Valley Forge have made clear just how narrow the rule of Flast is. In order for a taxpayer to satisfy the requirements of Article III, the taxpayer must challenge a congressional exercise of the taxing and spending authority, and assert that the act of spending itself is what gives rise to the establishment clause violation. The court of appeals in the decision below substantially expanded the scope of taxpayer standing and in doing so, the court adopted a doctrine that I think can fairly be only understood as an exception to, not an application of normal principles of Article III standing. The court did so on the rationale that there is much that the executive branch can do to violate the establishment cause, but there is much that all three branches of Government could conceivably do to violate the establishment clause, and that has never been thought a sufficient reason to extend taxpayer standing to all Government action, nor has it been thought a sufficient reason to relax the irreducible minimum requirements of Article III.
06-157 +++$+++ 49586 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If I understand your position correctly, if Congress enacts a program that favors religion over non-religion, which is supposedly what the establishment clause prohibits, that's bad; but if Congress enacts a perfectly valid general program and the President implements it in a fashion that favors religion over non-religion, that's okay, insofar as the ability of anybody to challenge it is concerned. Is that an accurate description?
06-157 +++$+++ 49587 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think so, Justice Scalia. I mean, first of all --
06-157 +++$+++ 49588 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why not?
06-157 +++$+++ 49589 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I mean, I think that may be sort of over inclusive and under inclusive.
06-157 +++$+++ 49590 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay.
06-157 +++$+++ 49591 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Which is to say, it's not a congressional program, it's a congressional spending statute that is the key predicate. And then once there's a congressional spending program, whether it's facial challenge or an as-apply challenge that relies on an intervening ministerial act of the executive branch, taxpayer standing will lie under this Court's precedent.
06-157 +++$+++ 49592 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If this -- if Congress had enacted this executive order that's in question here, if it had been congressional legislation, would there be standing?
06-157 +++$+++ 49593 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Justice Ginsburg, but let me just be clear. I don't think it's just a matter of this executive order that's challenged in this case and Congress could have enacted that into statute. As I understand it, the -- what is really at issue here is not the executive order. It is the way that certain conferences were conducted by executive branch officials. That's what the dispute --
06-157 +++$+++ 49594 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I had the same question as Justice Ginsburg, and I think was also suggested by Justice Scalia's question. Suppose that Congress passed a statute that said we hereby appropriate a million dollars to the President to use to call religious conferences, and then it spelled out these conferences. Is there standing there?
06-157 +++$+++ 49595 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Justice Kennedy, because I look at this Court's --
06-157 +++$+++ 49596 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- and I of course want the answer, but then, why is that consistent with what you told us at the beginning that there had to be a statute?
06-157 +++$+++ 49597 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because there has to be two things. There has to be a statute. And then there has to be an allegation that the statute creates a unique injury in the context of spending that affects taxpayers differently than anybody -- than any other citizen. And if you have a situation like your hypothetical statue, where you don't have any spending that goes outside of the Government, then you might have an establishment clause problem, but it wouldn't be an establishment clause problem where the nub of the problem is the fact that money is spent. Because if there's a problem with what's going --
06-157 +++$+++ 49598 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you're saying if the Government, the executive, or the Congress, if the congressional statute authorizes the giving of money for the billing of a church, that's bad; but if it authorizes -- it makes a general authorization to the President -- no. If the congressional statute says the Government will build a church, that's okay, because then the money doesn't go outside the Government?
06-157 +++$+++ 49599 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, importantly, Justice Scalia, it's not a matter of it being okay. It's a question of whether it logically --
06-157 +++$+++ 49600 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, as far as standing is concerned.
06-157 +++$+++ 49601 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yeah, it logically gives rise to taxpayer standing. So -- and I think there is --
06-157 +++$+++ 49602 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is your answer to that? That in fact it's bad in the first situation and okay in the second, as far as standing is concerned?
06-157 +++$+++ 49603 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What I would say is in either case it's bad. I would say that there is taxpayer standing to challenge the disbursement of funds outside the Government but not your horrible hypothetical about an internal Government church.
06-157 +++$+++ 49604 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There is no standing for the internal Government church?
06-157 +++$+++ 49605 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not taxpayer standing. Anybody who's subjected to the mass at the church probably has standing as a matter of direct --
06-157 +++$+++ 49606 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, we're not forcing anybody in at gunpoint. We're just building a Government church.
06-157 +++$+++ 49607 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect, Justice Scalia, nobody forced Van Orden to walk by the Ten Commandments display in Texas at gunpoint, and yet this Court said that he could bring an establishment clause challenge. So I think there would be directly injured people who could challenge your sort of end of the slippery slope --
06-157 +++$+++ 49608 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But we're talking taxpayer standing. And you think there is a real difference insofar as whether the taxpayer is harmed between the Congress saying we're going to give the money to a religious organization to build a church and Congress saying we're going to build a church. You really think there's a difference?
06-157 +++$+++ 49609 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think there's a difference in the extent to which there is a conceptually direct injury for the taxpayer as taxpayer. The citizens are clearly injured when the Government sets up the church.
06-157 +++$+++ 49610 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In both cases money is being used for a purpose that is contrary to the establishment clause, according to the taxpayer.
06-157 +++$+++ 49611 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But with respect, in the context of the internal Government church, the fact that money is being spent to establish that church is the --
06-157 +++$+++ 49612 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Taxpayer money.
06-157 +++$+++ 49613 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- least of your concerns. It's the fact that the Government is establishing it that's the principal concern.
06-157 +++$+++ 49614 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't care whether it's the least of the concerns, it's a concern. It's the same establishment clause concern in both cases. Now you may well be correct that there's a freedom of religion clause violation in one case and not in the other, but as far as the establishment clause violation, I find it difficult to understand the difference between the two.
06-157 +++$+++ 49615 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia, I think it's a difference suggested by this Court's cases, and they do make an important distinction between the distribution of money outside the Government where the spending itself is the injury and what this Court has termed the incidental expenditure of money in the context of an executive branch activity that itself is alleged to violate the establishment clause.
06-157 +++$+++ 49616 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And why should that make any difference if the entire theory behind it is sort of a Madisonian theory, if not threepence from the pocket for a religious purpose? If you start with the Madisonian view, there should be no distinction of the two cases that Justice Scalia puts.
06-157 +++$+++ 49617 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not quite sure that's right, Justice Souter, because I think that there's really two ways the Government can establish religion. One is they can do it themselves directly. And if they do that, I think that the primary problem is the primary executive branch conduct in doing so. The other way they can establish --
06-157 +++$+++ 49618 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but let's talk about establishing -- maybe this is what you're going to do, establishing religion by spending the threepence.
06-157 +++$+++ 49619 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly. And that is precisely what --
06-157 +++$+++ 49620 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And in this case, when you build the church, you're spending the threepence whether -- whether a -- a Government employee is laying the bricks or a contract -- an outside contractor is laying the bricks or a third party institution to which a grant has been made is laying the bricks. It's the same threepence.
06-157 +++$+++ 49621 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect in the one respect it is the three pence itself that is the establishment violation. It is the act of handing Government money into the coffers --
06-157 +++$+++ 49622 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Taking the money out of the pocket and using it for a particular purpose, and the money comes out of the pocket in each case. The purpose is the same in each case.
06-157 +++$+++ 49623 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Again, I would take issue with that and say the primary concern that Madison was focused on was the taking of the money and then giving it to the outside religious entity.
06-157 +++$+++ 49624 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would -- you've covered the case where the Government itself, the executive is the actor and said that's not covered by Flast. But it is covered -- what is covered is if the give the money directly to the religious organization. If the money goes instead of to the Government -- take this case, if the conferences are run by a private contractor -- contractor with the executive, where would that fall?
06-157 +++$+++ 49625 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it might depend on the nature of the claim actually. If the nature of the claim --
06-157 +++$+++ 49626 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ This claim, these conferences are run now instead of within the executive branch by various agencies, they are run by contractors, specialists in conferences that have been engaged by the executive to help people make grant applications.
06-157 +++$+++ 49627 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I think the better view, is the challenge is exactly this one, which is not that there's something wrong with the recipient, but that there's something wrong with what goes on at these conferences. Then in that context, I don't think there would be -- standing --
06-157 +++$+++ 49628 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's -- that's a question on the merits. Right now we have to take the allegations of the complaint on the merits as -- the allegation is, I take it, that religious organizations are being favored over secular organizations; but that's a merits question. You've -- you've -- you have been clear that if the Government itself spends the money, then there's no standing. You've, you've been clear that if it gives the money to the religious group, there is standing. Now money is going outside the Government. Going outside the Government. But is not going to the religious organization. Where do you fit that?
06-157 +++$+++ 49629 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Again, I think if I understand the question, I would say that there's no taxpayer standing there. And I think -- but, but and I apologize for sort of bleeding over into the merits. But with all due respect, I don't think you can really meaningfully talk about the Flast nexus test without bleeding over a little bit into the merits, because the Court did it itself in Flast. And what I would say is if you have a challenge where the problem is that it's the very act of money going to the third party conference organizers that's the problem, then it really is a spending case, and I think the taxpayer standing would logically lie. But if it's really, what the concern here is the primary conduct of what was done at the conferences, and not the fact that there's spending on the conferences at all, then I think it's more -- it is a case there would not be taxpayer standing.
06-157 +++$+++ 49630 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ There wouldn't be tax -- taxpayer standing, but of course there would be regular Article III standing in the sense that in a party claiming to be injured because they didn't get a grant, and a religious organization did, and the reason was religion, can bring any kind of claim they want under Article III. It's just they wouldn't qualify for the special exception to the general rule that there is no taxpayer standing for establishment clause cases.
06-157 +++$+++ 49631 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right. And it's a very important point. Because for example, when this Court recognized that the Bible reading in Doremus did not give rise to taxpayer standing, that didn't stop the parents who were directly injured by the same practice in Shemp from bringing an establishment clause --
06-157 +++$+++ 49632 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- just one, one more question on this, on this line. And I won't belabor the hypothetical. Again there's a Federal statute for this conference, and the moneys go for air tickets to various religious ministers and priests. Does that meet your outside the Government test for standing?
06-157 +++$+++ 49633 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think there would be taxpayer standing if I understand that. And I realize that, you know, one could say well, that's is a fairly artificial distinction. But I do think that it is suggested by this Court's precedents and the reason that it makes sense is that when you have injury -- where the real injury is the spending, the fact that you're not supposed to pay for plane tickets for ministers, that's an establishment clause injury, then it makes sense to say that people that provided that money in the in the first place have a distinct injury.
06-157 +++$+++ 49634 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But not -- but not if the President just gives the money out of a general appropriation, authorizing him to give money to people who are helping in the programs that the Faith-Based Initiative was -- was designed to help?
06-157 +++$+++ 49635 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
06-157 +++$+++ 49636 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If the President hands over the money, that's okay?
06-157 +++$+++ 49637 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not necessarily, Justice Scalia, but it's important to focus on what this case is about.
06-157 +++$+++ 49638 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why, why not necessarily? I thought that was your -- you proposition, that it has to be a congressional violation not an executive.
06-157 +++$+++ 49639 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. And it would depend a little bit on about where the President is getting the money. I think the way that we would look at it --
06-157 +++$+++ 49640 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He's getting the money from Congress under a general, under a general appropriation. If he takes this money and he says here, use it for a religious purpose, that's okay?
06-157 +++$+++ 49641 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He --
06-157 +++$+++ 49642 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ As far as standing is concerned, he can't be sued?
06-157 +++$+++ 49643 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If he, if he's taking it from a general appropriation that makes no indication it's to go outside the Government so one could not in any way articulate that as an as-applied challenge to the appropriations, then I suppose that there would not be standing. But I think --
06-157 +++$+++ 49644 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't understand. I'm back -- I really -- I'm surprised. And it's probably my fault. But that I thought -- I started where Justice Scalia was with his first question. I thought this had something to do with whether Congress passed a statute or the President acted on his own. But listening to you now I think, I can't decide -- I think you have a different argument. Suppose -- I'm just trying to understand. Suppose that Congress passes a law and it says it's a very nice thing to commemorate the Pilgrims by building a Government church at Plymouth Rock, where we will have the regular worship in the Puritan religion. Now can a taxpayer from California in your view challenge that?
06-157 +++$+++ 49645 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would say that that's a much harder case than this --
06-157 +++$+++ 49646 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, but --
06-157 +++$+++ 49647 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- but I say no. I would say no, no.
06-157 +++$+++ 49648 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why not? Because I thought Flast made clear that they could.
06-157 +++$+++ 49649 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. What Flast makes clear is that you can challenge a congressional statute that is a taxing and spending statute. And I think to understand the circumstances in which you should give rise to taxpayer standing, you need two things: You need a congressional statute that is an exercise of the taxing and spending authority; but then you need the money to go outside the Government. And that's precisely what --
06-157 +++$+++ 49650 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then you go to a private group?
06-157 +++$+++ 49651 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Because there's, again, there's two ways --
06-157 +++$+++ 49652 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you're saying that if the Government has the most amazing, let's -- I'm trying to think of something more amazing that what I just thought of. (Laughter.)
06-157 +++$+++ 49653 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All over America, they build churches dedicated to one religion; and Congress passes a statute and says in every city, town, and hamlet, we are going to have a minister, a Government minister, a Government church, and dedicated to the proposition that this particular sect is the true sect; and they pass a statute like that, nobody could challenge it?
06-157 +++$+++ 49654 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Horrible hypothetical.
06-157 +++$+++ 49655 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is that what you're saying, then?
06-157 +++$+++ 49656 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I mean, I think the bottom line is that there would not be taxpayer standing. Plenty of people could probably challenge that.
06-157 +++$+++ 49657 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I don't know, I mean --
06-157 +++$+++ 49658 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Probably --
06-157 +++$+++ 49659 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- everybody else who doesn't want to go just avoids it. So that they don't have to do anything. They just have to --
06-157 +++$+++ 49660 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Any, presumably any other denomination that is not of the established church could bring a challenge that they're being discriminated against, because they're favoring a particular church over them. Your proposition is simply that somebody -- somebody in Oregon can't challenge the fact that they're building a church in Florida simply because the person in Florida pays taxes, right?
06-157 +++$+++ 49661 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Exactly, and not just the person in Oregon. But everybody in between Oregon and Florida all have the same amount of standing. No, what we're saying is plenty of people would be able to challenge that. But not --
06-157 +++$+++ 49662 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Who? Who?
06-157 +++$+++ 49663 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As -- as the Chief Justice suggested I think anybody from a different denomination that said that this was discriminatory probably could bring a claim. I also think that anybody who walked into one of those churches could bring a claim. And again, this Court -- this Court --
06-157 +++$+++ 49664 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Maybe they don't walk into it because it is not "our church." So they don't walk into it.
06-157 +++$+++ 49665 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we --
06-157 +++$+++ 49666 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And moreover, they don't -- they don't feel it's discriminatory. It's just we're doing this to commemorate the Pilgrims, and we'll give the money to any group that's a Pilgrim. (Laughter.)
06-157 +++$+++ 49667 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect -- with respect, Justice Breyer, I think you're underestimating the ingenuity of plaintiffs to think that somebody that walked by going to Plymouth Rock okay thinking I was going to see a nice historical exhibit, and is and to see a church, wouldn't bring a -- an action. And that there wouldn't be Article III standing for that particular individual, not the taxpayer --
06-157 +++$+++ 49668 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ General Clement, are you -- are arguing that these lines that you're drawing make a lot of sense in an abstract sense? Or are you just arguing that this is the best that can be done that this is the best that can be done within the body of precedent that the Court has handed down in this area?
06-157 +++$+++ 49669 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The latter, Justice Alito. (Laughter.)
06-157 +++$+++ 49670 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And I appreciate -- I appreciate the question.
06-157 +++$+++ 49671 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why didn't you say so? (Laughter.)
06-157 +++$+++ 49672 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I -- I've been trying to make sense out of what you're saying. (Laughter.)
06-157 +++$+++ 49673 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, and I've been trying to make sense out of this Court's precedents. (Laughter.)
06-157 +++$+++ 49674 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the best that I can do -- the best that I can do, when I put together Flast --
06-157 +++$+++ 49675 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do we think have a duty to follow precedents that don't make any sense?
06-157 +++$+++ 49676 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think -- as a matter of first course, the Court tries. And here -- if I could put the precedents on the map, though, I do think they make a modicum of sense in the following way. You start with Flast. Flast says that you can bring a challenge to a congressional spending statute. Okay, fair enough. Valley Forge comes along and says that you, that you don't have taxpayer standing to challenge an executive branch action. Now that raises a very obvious --
06-157 +++$+++ 49677 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The difference was that it was because it was under the property clause, and made a distinction between property and money.
06-157 +++$+++ 49678 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice --
06-157 +++$+++ 49679 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We are talking about money, not property?
06-157 +++$+++ 49680 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But Justice Ginsburg, in fairness, the Court could not have been more clear in Valley Forge that there were two reasons that there weren't taxpayer standing there. One was there was a challenge to Executive Branch action. The second was that it was the property clause rather than the spending clause. Now, you could sort of take the view that the third of the cases, Kendrick, overrules the first aspect of the decision in Valley Forge. Now I think that's wrong. I think the way to understand Kendrick is as follows: You have a decision that says you can -- you can challenge congressional spending, not Executive Branch action. That naturally poses the question what about an as-applied challenge to a spending statute? Surely, I mean, because spending is something only the Congress does, and disbursement is a ministerial act that only the Executive does, what do you do when there's an intervening ministerial act of disbursement? Does that mean that it's still an as-applied challenge to the spending statute? Or does --
06-157 +++$+++ 49681 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was it just --
06-157 +++$+++ 49682 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That mean that it's Executive Branch action?
06-157 +++$+++ 49683 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was it just a ministerial act or did the Executive have discretion involved, about who would receive the grant?
06-157 +++$+++ 49684 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Ginsburg, two things. One, in Bowen, there was -- there is certainly always a degree of discretion. But it is worth noting that in Bowen as in Flast, the statute itself on its face made clear that money was to go to outside entities that were religious. In Bowen it did so in express terms by four times referring to religious organizations. In Flast it did so by saying money was going to go, or in-kind aid, rather, was to going to go to private schools. And that was at a time when this Court roughly contemporaneously, in Lemon v Kurtzman that 93 percent of the private schools were religious. The both of those, the gravamen of what's the complaint, that money is being spent by Congress on religious entities, was not within the discretion of the Executive Branch. And again, the way I would understand Kendrick is simply reconciling Valley Forge and Flast and Cohen to preserve, not broad challenges to Executive Branch action, which would have overruled Valley Forge, but rather to simply preserve the notion that you can bring an as-applied challenge to a spending statute.
06-157 +++$+++ 49685 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you can reconcile Valley Forge simply by saying when it's money from the Federal Treasury, whether it is a general appropriation or a specific appropriation, it is money from the Treasury, and that's what Flast is about. Because whether it is spent by the Executive under an Executive program, which you have said can violate the establishment clause as well as a congressional program. So why isn't that the line to draw based on Flast, that it's money from the Treasury that makes the difference?
06-157 +++$+++ 49686 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Ginsburg, it is certainly not the line I would draw from reading these cases side by side and together.
06-157 +++$+++ 49687 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or to, or to put it another way, to put Justice Ginsburg's point another way, every Executive action that involves the expenditure of congressionally authorized funds is an as-applied challenge to an expenditure statute. Because the only way the statute is applied is through executive action. And whenever the executive spends the funds improperly, you have an as-applied challenge to the congressional statute authorizing the funds, whether it's a general statute or a -- or a single shot statute.
06-157 +++$+++ 49688 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, I would have said that no one would have conceptualized that as an as-applied challenge to a general appropriation statute. I mean, I guess you would. But I --
06-157 +++$+++ 49689 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's a --
06-157 +++$+++ 49690 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Even, even if you would do that in another case, I don't see how you could do it in this case. If you look at their complaint they don't identify a single appropriation statute that they take issue with. Even before the Tenth -- the Seventh Circuit, if you look at page 10 a of the Petitioner's appendix --
06-157 +++$+++ 49691 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's the essence of an as-applied challenge. You say the statute's okay. It is just what is being done under this statute that is bad. You don't have to identify a bad statute. You're saying it is a perfectly good statute, but the President is -- is violating the Constitution in the way that he's applying it.
06-157 +++$+++ 49692 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect, Justice Scalia, I've never heard of an as-applied challenge to a statute that doesn't identity that's unconstitutional as applied. And it's your right --
06-157 +++$+++ 49693 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Under that, under that approach, when a U.S. Marshal executes a search and there's a Fourth Amendment claim that the search is illegal, that's really a challenge to the appropriation of the Marshals Service on an as-applied basis.
06-157 +++$+++ 49694 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's exactly right, Mr. Chief Justice. And every constitutional right could be sort of transmogrified into a claim that oh, that's an as-applied appropriations challenge, because the Government's not supposed to spend money to do unlawful things.
06-157 +++$+++ 49695 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So what's wrong with just saying that Flast stands for the proposition that when the Government spends money in violation of the establishment clause, a taxpayer -- after all, the money comes from the taxpayer -- can bring a lawsuit? And the reason that they do that is because the establishment clause is an important joint part of the religion clauses; and there'd be no other way to bring such a challenge. And sometimes it's that simple principle, and when we depart from that principle, say by giving property away instead of giving money away, you don't have the standing. So we have a pretty clear, simple rule. That rule applies whether it's Congress or the President acting under congressional authority, et cetera, which I think is close to what the other side --
06-157 +++$+++ 49696 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can I just add this thought before you answer. And isn't that exactly what Justice Stewart said in his concurring opinion?
06-157 +++$+++ 49697 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. I mean, if this Court wants to go the route of Justice Stewart, which it pointedly rejected, the majority of the Court pointed rejected in Flast, and say, establishment clause challenges, we're going to relax the normal Article III standard -- now, I'm not quite sure where the Court gets the authority to relax the normal Article III standards. But assuming that, that would at least be --
06-157 +++$+++ 49698 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Because there is a real case or controversy, because people become terribly upset when they see some other religion getting the money from the State for the -- for building a church, for example, and that's why: There's a real controversy.
06-157 +++$+++ 49699 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Getting upset is a constitutionally adequate reason to bring a lawsuit? If people get upset about spending money for purposes that the Federal Government is not allowed to spend money for because of States' rights, that also would justify Article III standing, wouldn't it?
06-157 +++$+++ 49700 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I suppose under that theory, and obviously the plaintiffs in Richardson and Schlesinger were very upset as well, and the Court said that --
06-157 +++$+++ 49701 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It is the kind of upset that is a genuine injury if you look to the objectives of the establishment clause and possibly that kind of genuine injury is not the case when you look to objectives of various other clauses of the Constitution.
06-157 +++$+++ 49702 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, let me try to answer in two ways if I can. One is to say that that way of looking at it takes you even beyond where Justice Brennan was in Valley Forge. Even Justice Brennan would have drawn the line at what he called bestowals of Government largesse to third parties.
06-157 +++$+++ 49703 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's what I was saying. I said that Flast then encapsulates that principle drawn out of the objectives of the establishment clause in a rule; and the rule is what I suggested.
06-157 +++$+++ 49704 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, again, but he --
06-157 +++$+++ 49705 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Based on money.
06-157 +++$+++ 49706 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But again, he didn't say just spending of money to do the Executive Branch's everyday operations and maybe -- and one day they go a little too far in praising religion. He said bestowal of Government largesse outside the Government. The second point I would make is I still don't understand where in just being upset you satisfy the irreducible minimum requirements of Article III, and even though Flast is probably the outer limit of what's an Article III injury under normal principles, there is at least what Judge Leventhal in Public Citizen against Simon called conceptual directness between the injury to the taxpayer and the injury that comes when tax money is spent outside the Government to a religious entity. He differentiated that from what happens when you have general Executive Branch activity that's unlawful, where he said there's no similar arrow between the action and taxpayers as a class. It's a classic injury that's inflicted on everybody. It's a generalized grievance, which has never been said to satisfy Article III.
06-157 +++$+++ 49707 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're talking about an incidental expenditure as part of a regulatory program is quite different from looking at a discrete program. The Faith-Based Initiative is a discrete program, and one component of it is this set of conferences. This is not an incidental something pursuant to a large regulatory program. Faith-Based Initiative is the name of this program.
06-157 +++$+++ 49708 +++$+++ TRUE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But Justice Ginsburg, their challenge is not that the money that's spent on conferences can't be spent on conferences. Their challenge is that what happened at the conference is there was too much promotion of religion. The fact that the money was spent on the conferences is incidental to the gravamen of the complaint. If I may save my time for rebuttal.
06-157 +++$+++ 49709 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, General Clement. Mr. Pincus.
06-157 +++$+++ 49711 +++$+++ FALSE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The Government's argument here is that Flast needs major surgery and, as the discussion I think in the first part of the argument shows, it's proposing two very substantial limitations that bear no relation to the relevant establishment clause principles, the history of the clause, or the history of this Court's decisions. And we think there's no basis for drawing the arbitrary lines that the Government suggests. And maybe I can follow up on some of the points that my colleague made and that the Court made during the questioning. First of all, with respect to the argument that the money has to go outside the Government. There's certainly nothing in this Court's cases that say that and the lower courts and this Court at least in part have found taxpayer standing to challenge the salaries paid to chaplains that are employed by the Government, and of course those would be --
06-157 +++$+++ 49712 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's -- I guess that's my first question. I don't understand under your theory why any taxpayer couldn't sue our Marshal for standing up and saying "God save the United States and this honorable Court." Her salary comes from Congress. You can trace that under your traceability requirement. So any taxpayer under your theory could bring that lawsuit.
06-157 +++$+++ 49713 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't -- I don't think that lawsuit could be brought, Mr. Chief Justice, and let me explain why. We think that the limitations that are in this Court's opinions require the taxpayer to identify a discrete and identifiable non-incidental expenditure. In other words, it's not just any --
06-157 +++$+++ 49714 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's very -- I can identify it. It's the appropriations that Congress extends to this Court that pay the salary of the Marshal.
06-157 +++$+++ 49715 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Your Honor, those appropriations don't do the trick, and maybe I can just explain our test and explain why. The Court in Doremus explained why there was standing in Everson to challenge the payments for bus transportation by saying Everson showed a measurable appropriation or disbursement of school district funds occasioned solely by the activities complained of. In other words, there has to be some -- the violation caused some unique expenditure. Not that the moneys wouldn't have been expended, because in this context the taxpayer doesn't have to show a lower tax burden, but --
06-157 +++$+++ 49716 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, Mr. Pincus --
06-157 +++$+++ 49717 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that there was a tie between -- I'm sorry.
06-157 +++$+++ 49718 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- there have been Federal spending programs declared unconstitutional under the establishment clause, and can you cite any instance in which such a holding ing has caused a reduction in tax rates?
06-157 +++$+++ 49719 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, and this Court has said and the lower courts have said that that is not the requirement, because the injury here that the taxpayer complains of, as the Court said in Daimler Chrysler, is not an increased tax burden. The injury is the expenditure of funds in a way that violates the establishment clause.
06-157 +++$+++ 49720 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ See, your traceability either covers every case or it covers no case. In real world taxation terms, no case would ever meet the test. But in, in purely conceptual terms, is any Federal money being spent, every case involving any expenditure of money, even the portion of the Marshal's salary that is devoted to convening the Court in the morning, would be sufficient.
06-157 +++$+++ 49721 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, respectfully, Your Honor, that's not what the Court said in Doremus in describing Everson. It didn't say the mere fact that Some money being spent was enough. It said that there was a measurable appropriation or disbursement occasioned solely by the activities complained of.
06-157 +++$+++ 49722 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me give you something more measurable. It is easy to tell from time sheets and other things how much money is expended on Air Force One and on security for the President when he goes to address a religious organization, okay. And he urges the importance of religion in American life and so forth. The whole trip is about religion. That's measurable. Would a taxpayer have standing to --
06-157 +++$+++ 49723 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so, because, as the court of appeals said, that this Court has identified a second limitation, which is not incidental. The money has to be central -- the money that's being challenged has to be central to the violation. Just as you couldn't challenge a prayer breakfast --
06-157 +++$+++ 49724 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I don't understand. The money -- say it again?
06-157 +++$+++ 49725 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The money has to be central to the violation.
06-157 +++$+++ 49726 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You mean Congress has to, has to say that --
06-157 +++$+++ 49727 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. It can be -- in this case, for example, the challenge is that these conferences were -- the entire conference program was a program to further religion over non-religion.
06-157 +++$+++ 49728 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what about Bowen? The money wasn't central to the violation there.
06-157 +++$+++ 49729 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Justice Scalia?
06-157 +++$+++ 49730 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It was, you know, a pregnancy program and the executive added to it certain, certain restrictions that were challenged as being religiously based.
06-157 +++$+++ 49731 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the --
06-157 +++$+++ 49732 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And we allowed an as-applied challenge.
06-157 +++$+++ 49733 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You did, an as-replied challenge to the specific grants. But there were specific grants identified and there was an as-applied challenge. But the argument was --
06-157 +++$+++ 49734 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But this is a specific grant. There is money allocated to the White House which goes -- you can identify it in the budget, and some of it goes to Air Force One. Some of it goes to the payment of the security guards.
06-157 +++$+++ 49735 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, but the money that's identified in the budget is not -- well, it's not the entire Air Force one appropriation that would be challenged in the kind of claim you're talking about.
06-157 +++$+++ 49736 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It wasn't in Bowen either.
06-157 +++$+++ 49737 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But it was a specific -- there was a specific action that allocated a specific amount of money to those grantees. And the argument was those grantees weren't entitled to any of that money because the way they were using it violated the establishment clause. And so there was -- the government's own action by designating a specific sum of money in that grant identified a specific sum of money, and the challenge was to that entire expenditure as identified by the Government.
06-157 +++$+++ 49738 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I really don't think -- there's an identified sum of money that goes to pay the costs of Air Force One, too, to buy the gas and everything else. There's an identified sum of money that goes into the pockets of the security guards who protect the President. I mean, it really doesn't make any sense.
06-157 +++$+++ 49739 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think, I think, as I say, there are two tests. One is whether there's an identifiable sum. We were talking about with respect to grants are the easiest case. There's another case as when there's a challenge to an entire program that the Government has identified as a particular program. And then the question, the second question that the Court has identified in Flast, was is it incidental or not. Is it something that is peripheral --
06-157 +++$+++ 49740 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Take Justice Breyer's Pilgrim church. Under your theory, if the grant was to erect a memorial and suitable museums or whatever at Plymouth, Plymouth Rock, then there wouldn't be an identifiable sum if the Government said, hey, let's use some of this money to build a church?
06-157 +++$+++ 49741 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the Government then singled out some of that money --
06-157 +++$+++ 49742 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The Government singles it out. By that you mean the executive who's implementing it, as opposed to Congress?
06-157 +++$+++ 49743 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I think --
06-157 +++$+++ 49744 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How do they -- in other words, if they spend the money are they singling it out? If it turns out it costs a million dollars to build the little Pilgrim church is that an identifiable sum singled out that would satisfy your requirement?
06-157 +++$+++ 49745 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think the singling out -- I don't think whether it's discrete and identifiable depends on the amount, Your Honor. I think it depends on how -- whether there is a way -- and this really is part of both traceability and redressability. There has to be a way to identify the expenditure that the taxpayer is seeking to enjoin. And if there is some separate Government grant for the building of a church, yes, if it's -- if -- if there is some religious --
06-157 +++$+++ 49746 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it doesn't have to be a grant, just that you can say it costs so much money.
06-157 +++$+++ 49747 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Or a contract.
06-157 +++$+++ 49748 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes.
06-157 +++$+++ 49749 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the Government let the contract for the building of the church, yes.
06-157 +++$+++ 49750 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Or the contract hiring the security guards who protect the President, right? They're employed. That's an employment contract.
06-157 +++$+++ 49751 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they are, and that --
06-157 +++$+++ 49752 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And they're protecting him for a religious purpose. He's going to this --
06-157 +++$+++ 49753 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they're protecting him for a protection purpose. His trip is for a religious purpose. And I think our submission is that there is a distinction that can be drawn there.
06-157 +++$+++ 49754 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is money that is expended in order to enable the President to do something for a religious purpose. It wouldn't be expended but for the fact that he chose to make this religious trip.
06-157 +++$+++ 49755 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but, as with buying the bagels at a prayer breakfast, the cost of the bagels, like the cost of the security, is not -- is not paying for the center of what the violation is. And therefore we think that that's the basis for a rule that rules those types of expenditures out.
06-157 +++$+++ 49756 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It wasn't, it wasn't the center in Bowen either. The center in Bowen was programs for -- to combat pregnancy. And some of the organizations that were getting the money were placing conditions on it. It wasn't central to the program. It was something added that the challenger said shouldn't have been added.
06-157 +++$+++ 49757 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But their claim was that the spending of this entire grant is unconstitutional because of the way the money is going to be used by the grantees. It wasn't that $1.98 of the is unconstitutional and the other million dollars is okay. It was that because of the way the grantee was using the money, the entire grant is unconstitutional. We think that's a different case.
06-157 +++$+++ 49758 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I see. It would only came within your theory if there was one Secret Service agent who was assigned to religious trips of the President? Then his entire salary could be challenged. But if it's just some of the salary of a Secret Service agent who protects the President for all sorts of trips, that can't be challenged?
06-157 +++$+++ 49759 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, and we think --
06-157 +++$+++ 49760 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that makes a lot of sense?
06-157 +++$+++ 49761 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it does make sense because, unlike the Government's limitations, which have nothing to do with the rationale of Flast or the underlying threepence here of James Madison, that does -- that is a particular amount of money that the Government is spending and it's identifiable just because of religion. We think that that's --
06-157 +++$+++ 49762 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So if we rule in your favor, then every Government agency has to make sure that whatever activities they undertake are part of a broader office? They don't set up a separate White House office. They just run it out of the White House office.
06-157 +++$+++ 49763 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they may --
06-157 +++$+++ 49764 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's purely -- a purely formalistic distinction.
06-157 +++$+++ 49765 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I don't think so, Your Honor, because I think it preserves --
06-157 +++$+++ 49766 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that would decide whether it's central or not. If you have a White House Office of Faith-Based and Community Initiatives, then you can say it's central to it. If it's just the White House office, then the argument would be, no, that's not central. They do a lot of other stuff as went.
06-157 +++$+++ 49767 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but if there are --
06-157 +++$+++ 49768 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the Marshall in both --
06-157 +++$+++ 49769 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- if there are particular people in that office for a particular, separately called out program in that office that is focused on faith-based initiatives only, yes.
06-157 +++$+++ 49770 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We're trying to decide whether it is central. You have to decide what unit you're looking at before deciding whether the activity is central. And you're just saying well, just look at the people who are doing the offensive activity, and it's obviously going to be central to what they're doing.
06-157 +++$+++ 49771 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think I haven't been clear in the test that I'm suggesting.
06-157 +++$+++ 49772 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Pincus, I would like you to go back to an answer you gave because it sounds to me like it wasn't right. The President needs protection at all times no matter where he goes. The President may be doing something that violates the establishment clause, but protection is the job, and it doesn't make any difference where the President is. And so your answer to the question, well, suppose he had a special protector who just took care of his religious activities? I would still say that it's, protection is the thing. So I don't think -- I think you didn't -- the answer you gave isn't consistent with your theory of this case.
06-157 +++$+++ 49773 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that's right, and I think that's because there are two steps to our analysis, Justice Ginsburg. One is, is there a discrete and identifiable expenditure that only arises with respect to religious activities. The second question is, does that particular expenditure, is that particular expenditure an incidental one? Flast said incidental expenditures don't give rise to standing. And I think you're right in that situation, that expenditure --
06-157 +++$+++ 49774 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in response to Justice Ginsburg's point, you could have said the same thing about the expenditure in Bowen. That money would have been spent anyway.
06-157 +++$+++ 49775 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the question --
06-157 +++$+++ 49776 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It happened to have been spent badly, but it would have been spent anyway.
06-157 +++$+++ 49777 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But it would have been spent differently, Your Honor, and I think that's the critical --
06-157 +++$+++ 49778 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That was her point, that it would have been spent differently. If the President hadn't gone to this religious event, he would have gone somewhere else and the money would have been spent differently. But that didn't make the difference in Bowen. Why should it make the difference here?
06-157 +++$+++ 49779 +++$+++ TRUE +++$+++ MR. BOWEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think --
06-157 +++$+++ 49780 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The fact is it was spent for a bad purpose, and that's the essential grievance of the plaintiff, it seems to me.
06-157 +++$+++ 49781 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We agree completely. But we also agree that there are some limits that -- the Court has said that every single dollar that's expended for a bad purpose doesn't give rise to a challenge. My example, if there's a prayer breakfast and all -- the only money that's spent is on the bagels, we don't believe the bagels are the basis for a taxpayer challenge to the prayer breakfast.
06-157 +++$+++ 49782 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So in fact, you have -- just help me with one point here. I mean, I see that deciding what's incidental and what isn't incidental will be difficult. I guess many of these cases would end up being decided on the merits, there is no violation on the merits, or maybe sometimes there is. But I'd started thinking of the question of standing by thinking that there are strong feelings when the Government spends money in favor of one religion and not another. After all, they led to the 30 Years War. We see that in other places in the world today. People feel strongly. And if, in fact, they have that terribly strong feeling and can't make any challenge because the feelings are shared by many, then there are no cases in the courts at all, and the Government can do what it wants without challenge. So in Flast, they carved out an exception, and the exception was where the taxing and spending clauses were involved, because Madison and others said this is aimed at "Government shall not tax and spend". So that was my theory. And all we're saying is where there's a big taxing and spending and it isn't incidental, there's standing. Now we're worried about the merits. Simple and clear. To which the response was, which has me a little worried frankly, was that, well, that was Justice Stewart's position, or roughly speaking. But the Court rejected that quite clearly, and if you look at later cases, they reject it too. And therefore, whatever you might think of it, it isn't the law. And I'm not free to think whatever, I have to think exactly in accordance with what the cases say. So what is your response? I'd like you to focus on that.
06-157 +++$+++ 49783 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, respectfully, I think that's exactly what Justice Stewart said. Justice Stewart in his concurrence did not espouse a broader theory than the one that the Court adopted in Flast. And he said he joined the judgment, the opinion of the Court, and he said, I understand that to hold only that a Federal taxpayer has standing to assert that a specific expenditure of federal funds violates the establishment clause of the First Amendment.
06-157 +++$+++ 49784 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So you're saying that what Justice Stewart's view, insofar as it was rejected, that Flast suggested even broader standing, but it suggested at least what Justice Stewart said?
06-157 +++$+++ 49785 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. I think it's --
06-157 +++$+++ 49786 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is that right or not?
06-157 +++$+++ 49787 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
06-157 +++$+++ 49788 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If Justice Stewart agreed completely with what the Court said, why did he write a separate opinion?
06-157 +++$+++ 49789 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in the -- sometimes despite the Court's desire sometimes to have a less separate opinion, sometimes justices do. And what he said here is he was just explaining his reason why he believed that Flast was distinguishable from Frothingham, and notes specifically that taxpayers have a clear stake because of the threepence comment. Justice Fortas did say, did have a broader theory, although he -- in addition, that the court did not adopt -- but he also said, recognizing very similar language to Justice Stewart, what the Court's opinion held. So I think Justice Stewart's opinion is useful because he doesn't talk about Congress, he talks about expenditures.
06-157 +++$+++ 49790 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It seems to me unduly intrusive for the courts to tell the President that it cannot talk to specific groups to see if they have certain talents that the Government may use to make sure that all of their energies are used properly by the Federal Government. It's almost like a speech rationale. And perhaps you would say that's just a judgment on the merits, but it seems to me that there's a standing concern here, too, that we would be supervising the White House and what it can say, what it can -- who it can talk to. And it seems to me that's quite intrusive from the standpoint of standing purposes. I'm not sure that this makes a standard that distinguishes the case from Flast or brings it within those -- within those cases.
06-157 +++$+++ 49791 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, we believe that the incidental test, and what I've been talking about in terms of what the limits are, that it has to be a non-incidental expenditure protects against that. Because if the argument is that some Government official, for part of his day met with three ministers, and therefore we want to challenge because Government shouldn't be meeting with ministers, I think it's both for the reason, both because of the fact this is not an argument that the expenditure on the hours of the day it took to have those meetings is clearly not central to anything.
06-157 +++$+++ 49792 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You really want to condemn the Federal courts to deciding case by case at the instance of all these people who feel passionately about this, case by case whether the expenditure was incidental or not. It doesn't seem to me an intelligent expenditure of any sensible person's time.
06-157 +++$+++ 49793 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
06-157 +++$+++ 49794 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And just to add to the question, before you answer, at the jurisdictional stage. In other words, this would be litigation over whether the individual taxpayer has standing. The Court would first have to determine whether the activity you're challenging is incidental or not.
06-157 +++$+++ 49795 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think the fact that there hasn't been a lot of these challenges that the Government has been able to point to, indicates that this may not be a big problem.
06-157 +++$+++ 49796 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Maybe they're reading Flast different than you read it. There are not a lot of these challenges because you don't have standing under Flast.
06-157 +++$+++ 49797 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the Court also said in Allen against Wright, you know, the absence of precise standards does not leave the courts at sea in applying the law of standing. Standing isn't an area, really, that is susceptible to precise definitions. It seems to me that both because of the incidental test and the concerns that Justice Kennedy articulated, if someone's claim is that people in the White House have five meets in the course of a year that they're upset about, it does not take much at the jurisdictional --
06-157 +++$+++ 49798 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, what would happen if --
06-157 +++$+++ 49799 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Even if it's true -- even if it's true --
06-157 +++$+++ 49800 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well then, five meetings isn't enough. How many?
06-157 +++$+++ 49801 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about 10?
06-157 +++$+++ 49802 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ 20?
06-157 +++$+++ 49803 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I was about to ask, 20.
06-157 +++$+++ 49804 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, our position --
06-157 +++$+++ 49805 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We'll litigate it. We'll figure out a number eventually, I'm sure.
06-157 +++$+++ 49806 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you know, in Allen against Wright, and Linda R.F., there are a whole series of cases where this Court has set up guidance, and the lower courts have evaluated whether the connection between the challenged conduct and the claimed injury -- here the expenditure -- is close enough for there to be standing. And this -- the inquiry that we're suggesting really isn't that different.
06-157 +++$+++ 49807 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What would happen if when this program was set up, nothing said about faith whatsoever? This was just going to be a general program of outreach to community service organizations, but plaintiffs claimed that as the program was being administered it was heavily favoring religious organizations. Would that come out the same way in your judgment?
06-157 +++$+++ 49808 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If their challenge was that the entire -- the whole program essentially, as the court of appeals characterized the complaint here, the whole program essentially is facially neutral, but in reality is a preference, yes. Then it would come out the same way and the question would be --
06-157 +++$+++ 49809 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It depends totally on how they characterize?
06-157 +++$+++ 49810 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, that's true in many standing questions. The question is, how do you characterize the claim?
06-157 +++$+++ 49811 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the problem here is the claim, the gravamen here is the Government is doing stuff with money that's been taxed from me that it shouldn't do. I fail to see how it makes any difference to the people who care so passionately about this, as Justice Breyer suggests, whether it's just an incidental expenditure or whether it's part of a targeted program. We don't do that in any other area of constitutional law. If someone has been subjected to an unreasonable search and seizure, we don't say well, you know, it was just incidental. Yeah, we know you feel badly about it, but this was just an incidental search and seizure, and you don't have standing. It doesn't make any sense, given the gravamen that you're directing this law against, to establish such a standard.
06-157 +++$+++ 49812 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, it is a standard that the Court established in Flast. It is --
06-157 +++$+++ 49813 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you also acknowledge we're not here to try to make sense.
06-157 +++$+++ 49814 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I actually think the Court's precedents line up pretty neatly. I think --
06-157 +++$+++ 49815 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But not neatly, I mean, in terms of the purposes of the thing. Are your clients claiming that it would violate the establishment clause for the President to go to lots and lots of prayer breakfasts?
06-157 +++$+++ 49816 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
06-157 +++$+++ 49817 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. I never met anyone who did, but I guess there is a legitimate concern, somebody might think that, I guess. And I guess that if people -- there is some tendency of the people that are worried, you know, there are pro ses, there are all kinds of people, somebody could claim that. So you want a way to keep them out.
06-157 +++$+++ 49818 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You want a way to keep them out --
06-157 +++$+++ 49819 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's Justice Kennedy's concern.
06-157 +++$+++ 49820 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly. And --
06-157 +++$+++ 49821 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But what they're worried about is will this word "incidental" and -- be sufficient to keep out the people who might somehow decide they want to claim, which sounds like a frivolous claim, that the President can't go to a prayer breakfast. Now does the word "incidental" do that? That's what I think --
06-157 +++$+++ 49822 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, our submission is that it does, Your Honor, because we think --
06-157 +++$+++ 49823 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Again -- I asked this before, and I think you were cut off before you had a chance. Incidental with respect to what? All of the money for a particular meeting, a particular breakfast, a particular whatever, is it incidental to that, or is it incidental to however many times the President has breakfast if he goes to a prayer breakfast?
06-157 +++$+++ 49824 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's incidental to what -- what's the focus of the claim? The focus of the claim isn't that bagels were served. The focus of the claim is there was prayer and that it was a religious meeting. If there was -- just to think of what such a claim might be. And so the expenditure that -- that's been identified is the bagels, it really is pretty tangential compared to the focus of what someone's complaining about. And so we think that's a rational test for doing what Justice Kennedy was talking about.
06-157 +++$+++ 49825 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So even if the expenditure is very small, but to take a particular religious symbol that might be offensive to some other people, is that incidental because the meeting went on longer and cost more than the particular religious symbol?
06-157 +++$+++ 49826 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I think there probably there would be two challenges, because there would be a challenge to the government's purchase of the religious symbol to have at the meeting in addition to the meeting, and I think then --
06-157 +++$+++ 49827 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So if it was 2 dollars, you would say it's not incidental because it covered the whole cost of purchasing the religious symbol?
06-157 +++$+++ 49828 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but I don't think this -- and I think the Government agrees with this. I don't think this is a test about how much. I think this is a test about the relationship between the expenditure that's challenged and the claim, what's alleged to be unlawful this complex of Government activity.
06-157 +++$+++ 49829 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So there's no standing to challenge a presidential directive which says we are going to buy bagels for all evangelistic Christian breakfasts. (Laughter.)
06-157 +++$+++ 49830 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay? But not for any --
06-157 +++$+++ 49831 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I think there would be standing.
06-157 +++$+++ 49832 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why would there be standing?
06-157 +++$+++ 49833 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because there the challenge is to the discriminatory purchase. It's not about the prayer breakfast, it's about the idea that the Government is purchasing bagels in a religiously discriminatory way.
06-157 +++$+++ 49834 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course. But the point is that makes --
06-157 +++$+++ 49835 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So there absolutely would be standing.
06-157 +++$+++ 49836 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But that shows how totally manipulable your incidental test is. You just have to phrase your claim so that it covers whatever expenditure --
06-157 +++$+++ 49837 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Your Honor --
06-157 +++$+++ 49838 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- is offending you. It's not -- incidental doesn't protect you from frivolous or insignificant claims in any way.
06-157 +++$+++ 49839 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think it does, because there would have to be an allegation in that situation that bagels were being purchased on a religious basis, and that's going to be awfully hard for a lawyer to sign in good faith. I think the problem, if I may --
06-157 +++$+++ 49840 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How does that confer standing? How does that confer standing?
06-157 +++$+++ 49841 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The purchase -- the idea that bagels are being purchased only for evangelicals and not for Jewish breakfasts?
06-157 +++$+++ 49842 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right. Right.
06-157 +++$+++ 49843 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because the Government --
06-157 +++$+++ 49844 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Standing by Joe Doaks, not from somebody who's starting a Jewish prayer breakfast and says, you know, what could be worse than not buying bagels for a Jewish prayer breakfast. (Laughter.) With him I could understand, he has standing. But I'm just talking about one of these many people who feel passionately about this just in general. You walk in and say he can't do this because I'm a taxpayer, and you say I'm sorry, being a taxpayer is not enough, we don't care how passionately you feel about it --
06-157 +++$+++ 49845 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think general passion is enough. I think what the Court said is there has to be a tie-in, and let me say that I think what's critical here is any test obviously is susceptible to hypotheticals, but the Government -- our test at least keeps in taxpayer standing the core of what the framers were worried about, which is Government expenditure of funds --
06-157 +++$+++ 49846 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Pincus, may I ask you this question? Do you think your theory is consistent with Valley Forge?
06-157 +++$+++ 49847 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, we do, because in Valley Forge, first of all, as Justice Ginsburg said, the Court relied on the fact that it was a property clause claim. There is a passage in Valley Forge that refers to executive action, but the Court in Kendrick when it talked about Valley Forge said, in characterizing that case, said executive action pursuant to the property clause. And we think those things are tied together and there's a reason why. In the appropriations context, there always is congressional action with respect to the very money that's at issue because there has to be a congressional appropriation. That's not true in the property context. Congress doesn't have to say, pass a statute to say, here are the 58 property sites that we want the executive to get rid of.
06-157 +++$+++ 49848 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think the distinction between taxing, between taxing and spending and the property clause, makes any sense? Do you think James Madison would not be upset if the Commonwealth of Virginia transferred 10,000 acres to the Anglican Church? That would be okay, but the threepence in taxation would not?
06-157 +++$+++ 49849 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that the core of what was the concern was -- was the taking of the money and the using it for religious purposes. And I think what the --
06-157 +++$+++ 49850 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's not the same money used. It's not the same property.
06-157 +++$+++ 49851 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, it's not the same money.
06-157 +++$+++ 49852 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It goes into some pot of fungible money and it's other money used. So instead of using other money, you use land. Does that make a difference?
06-157 +++$+++ 49853 +++$+++ TRUE +++$+++ MR. PINCUS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that the Court decided that it made a difference, and I think in terms of cabining, in terms of the worry that perhaps Flast is going to be overbroad and the need to have Congress involved, which I think is key -- there was no congressional involvement at all in designating those properties and there is in the appropriations context, and I think that's a key difference. But I think what's important here, and the Court's colloquy in the first part of the argument showed me this -- but the Government's position, the idea that it's only grants to third parties -- - the Government could hire a corps of chaplains and send them out to civilians and to the populace at large and that couldn't be challenged, because all it is is executive pay; and the Idea that there's some difference between a Bowen v. Kendrick situation, where the executive had tremendous discretion in terms of where it was going to give the money, and the situation here, which is the exercise of Precisely the same executive discretion, makes no sense. The injury is the same. The conduct that's -- that's the core of the violation is the same. It's an Executive Branch decision to use funds in a way that's impermissible under the establishment clause, and we've been drawing the lines that the Government has been trying to draw just makes no sense, and to leave out, to insulate from any taxpayer challenge really huge swaths of conduct that is really at the very core of what Madison was concerned about. So our submission is that that really makes no sense. There's no basis in history, for example, for the Government's claim that Executive Branch decisions are somehow different and insulated with respect to spending. It's the spending of the same threepence, and if history indicates anything it's that concerns about establishment were focused just as much on the King as on the Parliament in terms of the history that the framers understood. And for the idea that the executive would be given free rein to exercise discretion with respect to spending and there would be no concern about the types of injuries that gave rise to Flast we think is just not right. If the Court has no further questions, thank you.
06-157 +++$+++ 49854 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Pincus. General Clement, you have three minutes remaining.
06-157 +++$+++ 49856 +++$+++ FALSE +++$+++ GENERAL CLEMENT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. Just a few points in rebuttal. First of all, I think it's important to emphasize that if this Court recognizes that there is not taxpayer standing, that does not mean that there won't be lawsuits, that there won't be directly injured plaintiffs that can bring claims. Doremus and Schemp prove that point. But even more broadly, any time the establishment clause injury takes the form of alleged coercive conduct the individuals who are coerced Are going to have standing to bring the suit. The second point to make clear is it's just not an accurate description of this Court's cases to say that the spending of appropriated funds by the executive is enough to give rise to taxpayer standing. The property distribution plan at issue in Valley Forge took a tremendous amount of appropriated funds to run. Nobody thought that was a basis for taxpayer standing. The Bibles that were purchased and the salaries of the teachers in Doremus presumably cost at least a threepence. But that was not found enough. Now, I think in trying to understand the Court's cases you really have to focus on this word "incidental." And I think that the colloquy in the second half of the argument shows that you can't look at incidental as being minimal. It doesn't mean that. It doesn't mean minimal. It doesn't mean incremental. It is trying to distinguish an incidental expenditure of funds when -- as to something where the expenditure of funds is central or vital to the establishment clause violation. In the context of money going to third party religious entities, nobody would say that the spending is incidental. It's the whole violation. In the context of Bible reading or anything else the Executive Branch does, the fact that money went to fund the Executive Branch to violate the establishment clause is the least of the problems. The problem is the primary conduct of the Executive Branch in violating the establishment clause, but that's not a spending injury. The funding that goes into that is incidental. I think that's the way to make sense of this Court's cases. It's important to emphasize what's at issue here. It's not a general challenge to the Faith-Based Office. It's not a challenge to the name of the office. It is a challenge to the particular offices and the assertion that the Executive Branch officials at the conferences spent too much time talking about faith-based groups and not enough talking about community-based groups. If that isn't intrusive on the Executive Branch, I don't know what is. The last point I would leave you with is that if something has to go in this area, if you have to choose between the logic of Flast and the irreducible minimum requirements of Article III, I think it's an easy choice. You don't abandon the basic requirements of Article III that distinguish the Judiciary from the political branches of Government. I think the Seventh Circuit, with all due respect, lost sight of that. Its decision should be reversed. Thank you.
06-157 +++$+++ 49857 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, general. The case is submitted.
06-219 +++$+++ 49862 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in Case 06-219, Wilkie versus Robinson. General Garre.
06-219 +++$+++ 49864 +++$+++ FALSE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: Respondent asks this Court to recognize a new constitutional tort under Bivens and the Just Compensation Clause --
06-219 +++$+++ 49865 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Garre, could you crank up the thing? The sound isn't working, I don't think, Mr. Garre.
06-219 +++$+++ 49866 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I think it needs a little upcranking. Good.
06-219 +++$+++ 49867 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Hopefully that's better. -- recognize a new constitutional tort under Bivens and the Just Compensation Clause that would subject public officials to personal liability for conduct that he concedes does not amount to a taking. Recognizing that constitutional tort would require this Court to extend Bivens to an entirely new context, it would disregard limits that have existed for centuries on Just Compensation Clause claims, and it would skew the enforcement of important public land use objectives and thereby threaten public resources and public lands.
06-219 +++$+++ 49868 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ General Garre, there's a record here that the district court said there was substantial evidence, enough to go to trial, of a pattern of harassing conduct that included trespasses on this man's lodge and leaving the place in disarray, videotaping the guests, selective enforcement of the grazing laws, a whole pattern of things, even asking the Bureau of Indian Affairs to impound his cattle? This man says, this has been done to me by officers of my government. Is there a remedy?
06-219 +++$+++ 49869 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, there are a number of avenues that he could have sought to prevent this alleged conduct and that he did invoke. We don't think that there is a remedy under Bivens or an inferred action under the Just Compensation Clause.
06-219 +++$+++ 49870 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, what is, what is there that will really be effective, because if you tell me challenging each citation for violating the grazing permit --
06-219 +++$+++ 49871 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He can challenge the citations for challenging the -- canceling the grazing permits --
06-219 +++$+++ 49872 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And then the behavior will continue and he'll get one more and one more and one more.
06-219 +++$+++ 49873 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't think that that's a reasonable inference, Justice Ginsburg. In fact, the IBLA considered and rejected each of the alleged administrative actions on which his claim is now based.
06-219 +++$+++ 49874 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ May I ask a quick question. I had the same list of alleged acts, and I think many of them are uncontested, that Justice Ginsburg mentioned. Just as a matter of policy, can you inform me, when the Solicitor General's Office takes this case do you look into whether any of these things happen and the Justice Department issues a warning, don't do this any more? If these things are as Justice Ginsburg explained you don't defend all of those actions?
06-219 +++$+++ 49875 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, our position is that he hasn't established a constitutional tort or an actionable claim under RICO.
06-219 +++$+++ 49876 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know that. I know that.
06-219 +++$+++ 49877 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To answer your question, the Government takes these types of allegations seriously. It's taken seriously at the line level at the Bureau of Land Management. It's taken seriously within the Department of Interior and it's taken seriously at the Department of Justice.
06-219 +++$+++ 49878 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because if this, if this continues, your argument -- and I understand your argument that there's no essential free-standing cause of action for damages -- basically means he has a right to go broke with attorneys' fees challenging each individual incursion, each individual wrong. Well, again that assumes that he wouldn't get any relief out of the IBLA. That assumes that if he had gone to the IBLA and said, you canceled my grazing permits for grounds that weren't valid, that the BLM would have proceeded to engage in the same conduct. In fact, the IBLA --
06-219 +++$+++ 49879 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well that's exactly what he alleged and he said, and it happened for over a five-year period.
06-219 +++$+++ 49880 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But we know from the decisions of the IBLA that he did challenge that they rejected the grounds that he --
06-219 +++$+++ 49881 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They may be wrong, too. They may have been as much a part of the conspiracy as the officers who conducted it. And there are indeed those in the West who think that the BLM does, does act quite arbitrarily and high-handedly and is, is upheld by, by the, the administrative courts. Now, if that's a problem, what's the solution to that problem?
06-219 +++$+++ 49882 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Justice Scalia, to bring an APA action to Federal court challenging the final decisions of the IBLA.
06-219 +++$+++ 49883 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's one by one. Every time there is another trespass he has to go all the way through the administrative procedure and then when the, when the administrative court says, well, it was okay, then he has to go through the regular Federal courts. That doesn't seem to me like a realistic remedy, not for somebody who claims he's being systematically harassed for five years as, as is the claim here.
06-219 +++$+++ 49884 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Again, I think you have to assume that his claims would not succeed either at the administrative level or at the APA level, and if he got --
06-219 +++$+++ 49885 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't assume that at all. Even if they, even if they succeed, they say, yes, you're right, they trespassed, good for you. I mean, what is the remedy if they did trespass? What administrative remedy does he obtain.
06-219 +++$+++ 49886 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if there's a trespass he can go, he can obtain an action under the Federal Tort Claims Act. A trespass is an unauthorized taking. That's the way that this Court has treated it 1952 in the Hasselly case.
06-219 +++$+++ 49887 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What -- the photographing of his guests who he brings onto his ranch to hunt and they pay him for that. And then he claims that the BLM follows them just to harass them, just taking photographs. What relief could he get for that?
06-219 +++$+++ 49888 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, he claimed that they were trespassing on his lands.
06-219 +++$+++ 49889 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let's assume they wasn't trespassing.
06-219 +++$+++ 49890 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, he'd raised that objection before the IBLA and the IBLA concluded, and we think reasonably, that, given the history of the disputes with this individual, given his litigious nature, that it was reasonable for the BLM officials who were out there to be documenting his trespasses on public lands, and that's an important dimension of this case.
06-219 +++$+++ 49891 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought there was one aspect of the videotaping his guests, that the Government was doing it on its own land, on public land. They had cameras and the cameras were stationed so they weren't trespassing, they were just making the guests feel uncomfortable.
06-219 +++$+++ 49892 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To document, to document his trespasses on other lands, and that's -- the citation to the IBLA decision is at footnote 2 of our reply brief and it discusses that allegation in depth. In any event --
06-219 +++$+++ 49893 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I would really like to have your answer to my opening question, and I said: If your only answer is each time something, he is charged by the BLM people, he goes one at a time, engaging a lawyer, spending a lot of time, but it was, one of the briefs called it, dying a thousand deaths. He doesn't want that. He wants to say: Stop, stop this whole pattern; not one citation; stop this whole pattern. How does he get that remedy?
06-219 +++$+++ 49894 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He does not have a remedy under the Just Compensation Clause or Bivens, Justice Ginsburg.
06-219 +++$+++ 49895 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What does, what does he have?
06-219 +++$+++ 49896 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He can challenge, he can challenge these actions under the administrative process available to him under the --
06-219 +++$+++ 49897 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Piecemeal.
06-219 +++$+++ 49898 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- APA --
06-219 +++$+++ 49899 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Piecemeal.
06-219 +++$+++ 49900 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- like any number of other contexts.
06-219 +++$+++ 49901 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does he have any action that is other than piecemeal?
06-219 +++$+++ 49902 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He has to challenge each administrative action --
06-219 +++$+++ 49903 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I take it the answer is no.
06-219 +++$+++ 49904 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that he claims is unlawful.
06-219 +++$+++ 49905 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Were any of these administrative actions found to be unfounded? In other words, did he win any of the trespass citations?
06-219 +++$+++ 49906 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He did not. In fact, the IBLA found that the BLM had a right of administrative access to cross his lands to get to public lands which it was administering. And again, this case would have been quite different if the IBLA had found that the BLM officers were acting without legitimate authority.
06-219 +++$+++ 49907 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm surprised you say piecemeal. I would have thought most agencies in the government have like an inspector general or someone that you can complain.
06-219 +++$+++ 49908 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And they do.
06-219 +++$+++ 49909 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You can write them a letter and you say, look at what's been going on, they've been trespassing, they've indicted me on a false charge; I want you to see the whole list here and I'd like you to do something about it. And if they don't do anything about it, you go to your senator. Maybe you can go to the newspapers. I mean, has any of that happened here?
06-219 +++$+++ 49910 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It has, Justice Breyer. It has.
06-219 +++$+++ 49911 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And what's been the result of that?
06-219 +++$+++ 49912 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The result of that is it was determined that these actions by these line officers of the Bureau of Land Management were perfectly appropriate, that they were dealing with someone who has systematically violated the permits and conditions that are found --
06-219 +++$+++ 49913 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Who made that, who made that determination, including the selective citations?
06-219 +++$+++ 49914 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe there was an inspector general investigation, investigation within the Department of Interior that --
06-219 +++$+++ 49915 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought the Department of Interior reached a settlement agreement in which they told the line people at BLM to stop.
06-219 +++$+++ 49916 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There was a settlement agreement, Justice Ginsburg. But the Department of Interior stands behind the actions that are issued, at issue in this case, and I think --
06-219 +++$+++ 49917 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Nonetheless, they did enter a settlement which included that this behavior was going to stop.
06-219 +++$+++ 49918 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'm not sure that that's a fair characterization. I mean, like any party to litigation, any party to multiple lawsuits and claims, there are many reasons why it might be deemed in the interest of a person to agree to a settlement. And I don't think it's fair to --
06-219 +++$+++ 49919 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would you agree at least to a minimum that we must accept for purposes of this proceeding that what the complaint alleged, and what the district court said on summary judgment, there was sufficient evidence to go to a trial. That that's true. So we have to accept his allegations that there were selective citations for violations of grazing -- grazing laws, that they broke into his lodge and messed the place up?
06-219 +++$+++ 49920 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court has to accept those factual allegations, to --
06-219 +++$+++ 49921 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Okay. So that's --
06-219 +++$+++ 49922 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- to be sure. But the court of --
06-219 +++$+++ 49923 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So that's the case we have. And you're telling me that the only remedy a citizen, assuming the truth of those allegations, is to fight these actions one by one?
06-219 +++$+++ 49924 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's a fulsome remedy, Justice Ginsburg, when you think of the claims that could be brought administratively under the Administrative Procedures Act, under the Federal Tort Claims Act, to receive damages, to receive injunctions --
06-219 +++$+++ 49925 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What damages would you get for the trespass of a -- one, one BLM agent on your land? A lot of money you're going to get for that? Would it, would it come anywhere close to reimbursing you for the lawyers' fees that it's taken to go, to go all the way through the litigation?
06-219 +++$+++ 49926 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the allegation is that these trespasses have in effect deprived me of my property which is my business, then conceivably he could make a request for a large amount of damages.
06-219 +++$+++ 49927 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He doesn't say it deprived him of his property which is his business.
06-219 +++$+++ 49928 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I think --
06-219 +++$+++ 49929 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He is saying it's a trespass; get off my land.
06-219 +++$+++ 49930 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He, he has made both claims, Justice Scalia. And I think -- he has, he has complained about BLM officials exercising the right of administrative access, which has been confirmed at the administrative level and which is well settled. And he has made the more general complaint that these trespasses have -- and interfered with his businesses and interfered with his property. He filed a, a bond in this Court seeking, claiming the damages were in several million dollars related to the business. So that --
06-219 +++$+++ 49931 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can he get injunctive relief? Can he get injunctive relief? You said something about, that, you said they may seek to enjoin conduct that they claim will amount to an uncompensated taking. Can he have this litany of things that have happened and go into a court and say court, enjoin those --
06-219 +++$+++ 49932 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly he could under the APA. He could challenge the administrative actions he complained about, and if court concludes those are unauthorized or unconstitutional he could obtain an injunction.
06-219 +++$+++ 49933 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ He can bring, he can bring this, he could bring this not one action at a time, but he could complain all at once about everything?
06-219 +++$+++ 49934 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the other thing to keep in mind is that many of these discrete administrative actions -- for example, take the cancellation of the permits. That was based on a course of conduct that included 20 formal trespasses, disregarding trespass notices by the BLM, 20 violations of his grazing permits. All of that would be part of a record before the IBLA and before a Federal court in an APA. It would have an opportunity to review those allegations and determine whether or not the alleged Federal action was unlawful. And if a court believed --
06-219 +++$+++ 49935 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ He could -- he could not go into a Federal court with a Federal question? He would have to go to the initial decision maker, then the I --
06-219 +++$+++ 49936 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He would have to exhaust his administrative remedies, just like any number of other people who believe that they have been wronged by the Federal Government.
06-219 +++$+++ 49937 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Part of his claim is -- is selective enforcement. You know, maybe he did trespass, maybe some of his cattle did stray on somebody's land. But they are beating on him because of what they say is his failure to give a reciprocal easement which the Government is entitled to. To what extent was any of the administrative approval of the BLM agents' actions, to what extent was that based on the legitimacy of seeking to extract this reciprocal easement from him? Because I don't see that it's legitimate at all.
06-219 +++$+++ 49938 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the I -- let me answer that in two ways. First the IBLA found that there was not an effort to extort or blackmail Mr. -- the Respondent for exercising his rights.
06-219 +++$+++ 49939 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was that because the Government was entitled to the reciprocal easement? Is that why they said that?
06-219 +++$+++ 49940 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
06-219 +++$+++ 49941 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It wasn't extortion because he should have given the easement.
06-219 +++$+++ 49942 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I don't think that's what the IBLA found and we cite the part of the IBLA record at footnote 2 of our reply brief. Secondly it's well established that the Government can seek reciprocal arrangements with respect to property. The Court in the Leo Sheep case forced the Government to seek reciprocal arrangements.
06-219 +++$+++ 49943 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Not after, not after they have already given away -- I mean, yes; they could come to him anew and say I'll tell you what, if you give us this easement we'll give you yet another one.
06-219 +++$+++ 49944 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true.
06-219 +++$+++ 49945 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But he had one in, from the past, which -- which his predecessor had given a reciprocal easement for, and the Government failed to record the easement and therefore was is deprived of it.
06-219 +++$+++ 49946 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true. But I think it's important to keep in mind the scope of the claim before the Court.
06-219 +++$+++ 49947 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And they're mad at him for not giving back that easement which they failed to record.
06-219 +++$+++ 49948 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The BLM doesn't have to stop enforcing its laws and regulations once someone refuses to enter into reciprocal arrangements. There are thousands of reciprocal arrangements.
06-219 +++$+++ 49949 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It wouldn't be reciprocal. What was the Government offering to give him in exchange for his, his reaffirming the prior easement that they had failed to record? What was the Government giving him in exchange?
06-219 +++$+++ 49950 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ A valuable right-of-way, Justice Scalia, that - that was for 30 years, that covered 14 miles of public road --
06-219 +++$+++ 49951 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But that's what his predecessor had.
06-219 +++$+++ 49952 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He had that already.
06-219 +++$+++ 49953 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, but that did not convey with the property. It had to be reassigned in order for Mr. Robbins to take advantage of that right-of-way.
06-219 +++$+++ 49954 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I did not -- I did not understand that.
06-219 +++$+++ 49955 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. And it's in the regulations. The right-of-way has to be reassigned, and it wasn't going to be reassigned because Respondent refused to agree to the reciprocal easement and because he refused to make rental payments.
06-219 +++$+++ 49956 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ As originally negotiated, with I think Nelson. Was the right-of-way cancellable at any time? Or how long would the right-of-way last?
06-219 +++$+++ 49957 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The right-of-way was for 30 years which was long than the 20-year easement that the Government got in exchange. And this something that was negotiated at arm's length by parties that didn't have the acrimonious relationship that developed between Respondent and the BLM.
06-219 +++$+++ 49958 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Counsel, I -- I think part of what's happening here is there is difference between the regulation on the books and how they are enforced. Just as a hypothetical, let's say they don't -- the Government doesn't get its reciprocal easement that it wants, and so it says look, we normally don't strictly enforce these cattle trespass things, but we are going to go by the book with this guy until he gives us the right-of-way. Every time his cattle cross over the line we are going to hit him with a trespass citation. They don't do it for anybody else but, they're going to do it for him because they want to get the reciprocal right-of-way. Is that appropriate or inappropriate?
06-219 +++$+++ 49959 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first I don't think it gives him a cause of action under Bivens or the Just Compensation Clause. Second --
06-219 +++$+++ 49960 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that he can't -- but you're saying his remedy is to challenge each one. But actually each one, his cattle did trespass, so he doesn't have a good case. It's just that out in the West they don't actually give citations every time a cow crosses the river.
06-219 +++$+++ 49961 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Then I, then I don't think he is a very sympathetic plaintiff to be complaining that he is entitled to violate BLM rules or regulations. There is a certain amount of give and take that we think is inherent in these reciprocal arrangements and we think that the Just Compensation Clause tolerates. These are, the Just Compensation Clause or property rights here are protected fundamentally by State law. That's why any unauthorized action by the Government is a trespass, which is, which is dealt with under State law. The Just Compensation --
06-219 +++$+++ 49962 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, why is it a State law matter? Why didn't he know about this possibility? Why didn't he know that his predecessor in title had granted? Why wasn't there an actual notice, given the fact that everybody in this area of the country seems as a matter of course to give mutually beneficial rights-of-way? I agree it wasn't recorded.
06-219 +++$+++ 49963 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think he was on notice. The BLM made a determination that because it wasn't recorded, it wouldn't seek to enforce that against Respondent. It may be that it was -- it made a legal error on that; I don't know. But it made that determination --
06-219 +++$+++ 49964 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's a given in the record. The record is that he was not on notice. So whether one says, gee that's unlikely if he wasn't --
06-219 +++$+++ 49965 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But in any event, the point is that the BLM recognized that it had to negotiate a new reciprocal arrangement with Respondent and it sought to do so.
06-219 +++$+++ 49966 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And it's trying to cover for its own sloppiness or carelessness in not recording --
06-219 +++$+++ 49967 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it, it's trying to seek, establish a new reciprocal arrangement. Regardless of why it was back in the position of having to do so, it did so in a way that it did in any number of other situations that did arise.
06-219 +++$+++ 49968 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can I ask you about the Bivens theory here before your time runs out? Doesn't Davis versus Passman help the Respondent here?
06-219 +++$+++ 49969 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I, I don't think so, Your Honor. I think what is distinct about the Bivens claim here is first Bivens and Just Compensation Clause claims are fundamentally incompatible. And that in Bivens, its damages are nothing. Here the constitutional right actually explicitly provides a remedy, just compensation. Secondly, just compensation claims are claims against the Government.
06-219 +++$+++ 49970 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well that's because we assume it's focused just on his property and that the property was ultimately the thing that was in issue. But if you have all these other retaliatory actions, and wrongful actions taken by the Government tangential to this dispute, I take it Davis versus Passman, broadly read, says we can use Bivens if there is no other way to get a remedy against the Government.
06-219 +++$+++ 49971 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well -- two points. First, Davis versus Passman was decided in a day in which this Court was much more likely to infer new causes of action from the Constitution or from statutes. The Court in its recent cases, most recently Malesko, has said that it's sworn off that habit, and it's refused to recognize any new Bivens action in 25 years since those cases were decided. Secondly, the Respondent here has ample remedies and avenues that he could seek. If he believes that there has been unauthorized trespass he can seek damages under the Federal Tort Claims Act.
06-219 +++$+++ 49972 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose we think -- suppose we disagree with you on the latter point. We think he is really in a bind; there's not really anything he can do. Doesn't that invoke the Davis versus Passman rationale?
06-219 +++$+++ 49973 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
06-219 +++$+++ 49974 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ To expand -- it would be an expansion of Bivens.
06-219 +++$+++ 49975 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be closer to it but the Court would still have to confront the question of whether it would be appropriate to infer a constitutional tort under the Just Compensation Clause. And we would urge the Court not to do so. There is an overarching question here of qualified immunity. Whatever is true with respect to whether this new constitutional tort should be created towards other claims before the Court, the Petitioners on this case were not on clear notice that their actions in responding to someone who had systematically violated the rules and regulations, which -- on the books for some time -- would subject them to personal damages actions and in fact treble damages under the RICO statute. For that, for that --
06-219 +++$+++ 49976 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If a -- including, you know, busting into his lodge and disrupting the furniture and all of that, they thought that that was probably --
06-219 +++$+++ 49977 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if that's true --
06-219 +++$+++ 49978 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- probably allowed?
06-219 +++$+++ 49979 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If that's -- they would be on notice, that that conduct if true could subject them to a tort action under the Federal Tort Claims Act. There is no decision that the court of appeals or Respondent has pointed to that would put the Petitioners here on notice in the specific situation they confronted, that their actions could subject them to a constitutional tort which had never been recognized by any court, whether their actions could subject them to treble damages under RICO.
06-219 +++$+++ 49980 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that a test for -- for -- for qualified immunity? You have to know -- not only --
06-219 +++$+++ 49981 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You have to have --
06-219 +++$+++ 49982 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's not enough to know that your action was wrongful? You have to know the particular statute or constitutional provision under which a remedy would be sought?
06-219 +++$+++ 49983 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The first question is whether he has established a violation of the right. And the rights that are alleged in this case that are before this Court, or a right under the compensation clause of the Fifth Amendment to --
06-219 +++$+++ 49984 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you're suggesting they would not be immune from a State law trespass action?
06-219 +++$+++ 49985 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The -- the -- the Congress has waived the sovereign immunity from those types of claims under the Federal Tort Claims Act.
06-219 +++$+++ 49986 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The people who had done this --
06-219 +++$+++ 49987 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the Federal Tort Claims Act is against the United States. It's not against the --
06-219 +++$+++ 49988 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's against the United States if they are acting within the scope of their conduct. If it's unauthorized actions outside the scope of the conduct, then they can go directly against the individuals. That's --
06-219 +++$+++ 49989 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But then it wouldn't be a Federal Tort Claims Act.
06-219 +++$+++ 49990 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, then it would be additional suits in State court. They could also -- there are also State, Federal and criminal laws that they could seek to invoke or have invoked. But --
06-219 +++$+++ 49991 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But respect to the RICO claim, assuming the RICO claim is upheld, what do you say to your brother's argument that there is no history of qualified immunity for RICO claims? That the qualified immunity doctrine addresses the, the kind of development of squishier law under -- under 1983. So that you simply have not qualified immunity.
06-219 +++$+++ 49992 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Two things, Justice Souter. First the argument was not raised below; we don't think it's properly before the Court. Second, the question under qualified immunity, and this Court made this clear in the Wyatt case and again in the Knight case, it doesn't look to the particular offense. It looks to the nature of the responsibility that the Government officials are performing. And here the nature of the responsibilities are enforcing grazing permits, enforcing access to public lands, activities that BLM officials have discretion and have had discretion for more than a century to enforce. And we think that falls squarely within the rubric of qualified immunity.
06-219 +++$+++ 49993 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well that may be a very -- it seems to me that those may be good arguments, or at least relevant arguments against the applicability of RICO in the first place. But if RICO is found to have been violated, I take it it would be an extension of qualified immunity jurisprudence --
06-219 +++$+++ 49994 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't --
06-219 +++$+++ 49995 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- to, to apply it to a RICO defendant.
06-219 +++$+++ 49996 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect, I don't think it would be. First, the large portion of the courts of appeals that have addressed this have concluded that qualified immunity principles do extend to RICO. And second, again, the focus of the inquiry is on the nature of the responsibilities. It's not on the particular offense alleged. It's not on whether there's a violation of that offense. It's the nature of the responsibilities, and here these responsibilities, enforcing permits enforcing access and use of public land, and protecting against abuse of those lands, are things that BLM officials and other government officers have exercised their discretion to do for more than --
06-219 +++$+++ 49997 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If this case were identical, everything's the same, except that the officials involved are state officials, would there be a 1983 action?
06-219 +++$+++ 49998 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, no, because we don't think that there's a violation of the Just Compensation Clause when someone doesn't take property, when someone doesn't act through allegedly --
06-219 +++$+++ 49999 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's a different -- that's a different reason. That's a merits defense. I just wondered if --
06-219 +++$+++ 50000 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, are you -- the question with respect to qualified immunity?
06-219 +++$+++ 50001 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yeah. You're saying there is no Bivens action, period.
06-219 +++$+++ 50002 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we think that qualified immunity now --
06-219 +++$+++ 50003 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No, I'm not even thinking of it. I just wonder if 1983 would apply and it would be clear that there is an action. If you win, there would be no problem.
06-219 +++$+++ 50004 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, because there has been no violation of the substantive Fifth Amendment right and there has been no violation of Bivens. It's important to recognize the overarching context of how the Federal Government manages the public lands. There are -- there are numerous reciprocal arrangements that could be affected by this. Any time a landowner refuses to enter into a reciprocal arrangement, he can then turn around in any government action that is taken against that landowner, all he has to do is add on an element of wrongful subjective intent, and he can bring a constitutional tort claim, or even a RICO claim like the respondent here, and subject officers to the threat of personal liability. And we think that this would have a significant skewing effect on legitimate government decision making. If I could reserve the remainder of my time.
06-219 +++$+++ 50005 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, counsel. Mr. Tribe.
06-219 +++$+++ 50007 +++$+++ FALSE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: There is a dramatic contrast between the instantaneous judgments a school principal might have to make in the face of complicated decisions like Tinker, and a deliberate decision over a course of almost a dozen years made by officials of the Bureau of Land Management that the greater retaliate against someone for refusing to relinquish his property to the government without any compensation. You don't have to have taken a special course in constitutional law to know that that is clearly forbidden.
06-219 +++$+++ 50008 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Tribe, can I get something straight? Is it indeed correct that what the government was seeking here was an exchange of easements, that the government was going to give one and your client would give the other?
06-219 +++$+++ 50009 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Scalia, that's not correct. That was what they did with Nelson, his predecessor.
06-219 +++$+++ 50010 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ With the predecessor in interest of your client.
06-219 +++$+++ 50011 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. And what happened --
06-219 +++$+++ 50012 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did what the government gave to your predecessor of interest, did that easement continue? The government has just said that it expired.
06-219 +++$+++ 50013 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The government is wrong. It continued.
06-219 +++$+++ 50014 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's how I understood it.
06-219 +++$+++ 50015 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It ran with the land, it was part of what he brought. If it had expired --
06-219 +++$+++ 50016 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is the easement over the roadway.
06-219 +++$+++ 50017 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The right-of-way over the government's roads.
06-219 +++$+++ 50018 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ As opposed to the grazing easement.
06-219 +++$+++ 50019 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As -- that's right. The right-of-way over the road of access, which they not only canceled in July of 1985 but refused to maintain themselves, so that he couldn't really access the ranch.
06-219 +++$+++ 50020 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If they finally canceled it, how did it -- I mean, if it runs with the land, they don't have the authority to cancel.
06-219 +++$+++ 50021 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They didn't have the authority to cancel it simply because of the transfer of the land. They allege that he had made various technical violations on account of which they canceled it. But the key point is, that was supposed to be the quid pro quo, that is, they have maintained all along that this case is about that right-of-way and what an ingrate the respondent is that he wants to continue enjoying it and not give the easement. Well, he didn't enjoy it after July of 1995 when it was canceled. They wouldn't have had to cancel it for alleged violations.
06-219 +++$+++ 50022 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't care whether it was canceled, but I must say, if they were just seeking a fair exchange of reciprocal easements, which landowners do all the time --
06-219 +++$+++ 50023 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
06-219 +++$+++ 50024 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the system of lands out there can't work without it.
06-219 +++$+++ 50025 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Uh-huh.
06-219 +++$+++ 50026 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I wouldn't see anything terribly wrong about the BLM people say okay, he wants to play hardball, he wants to play by the book, we'll play by the book. What would be wrong with --
06-219 +++$+++ 50027 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They didn't --
06-219 +++$+++ 50028 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ See, I wouldn't feel bad about that if they said --
06-219 +++$+++ 50029 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I wouldn't either.
06-219 +++$+++ 50030 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- by God, every time his cows trespass, we're going to get him. Every time his hunting expeditions go on public land, we're going to get him. That would seem reasonable to me. So it really is crucial to my view of the case that the government was not seeking a new exchange, it was seeking --
06-219 +++$+++ 50031 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
06-219 +++$+++ 50032 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- for him to cough up --
06-219 +++$+++ 50033 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To cough up that easement. And in fact when he said, he offered to negotiate, and the immediate response from Mr. Vessels, who is since diseased, was, the United States does not negotiate. That wasn't just kind of starting of a bargaining position. They dug in and for a series of years the district court found, fully substantiated on the petition appellate via -- appendix to the petition at page 37a, not only playing hardball and being selectively tough on him, but a number of clearly illegal acts, breaking into his lodge. One of them particularly striking to me at joint appendix 49 to 57, inciting a neighbor to ram a truck into the respondent while he was on horseback. Firemen --
06-219 +++$+++ 50034 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Who would have thought -- wait. When you say that, I mean, there's a lot of these acts, it seems, they are plainly illegal.
06-219 +++$+++ 50035 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure.
06-219 +++$+++ 50036 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if they are plainly illegal, then there are remedies in the courts.
06-219 +++$+++ 50037 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are remedies one by one for each of these acts.
06-219 +++$+++ 50038 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. But what is actually worrying you, which probably you can address at some point, is this: There are remedies one by one. That's true. And each has one. And maybe you can even get injunctions against harassing.
06-219 +++$+++ 50039 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the remedies were acquittal. He was acquitted, for example.
06-219 +++$+++ 50040 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, maybe he didn't do it.
06-219 +++$+++ 50041 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He spent hundreds of thousands of dollars.
06-219 +++$+++ 50042 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so it may be, they thought he did do it and --
06-219 +++$+++ 50043 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no. They didn't think he did do it.
06-219 +++$+++ 50044 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right.
06-219 +++$+++ 50045 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He alleged --
06-219 +++$+++ 50046 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did you bring a suit for malicious prosecution?
06-219 +++$+++ 50047 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's part of -- this is a suite like Hartman v. Moore. One of the acts that is clearly actionable under Bivens, if one has to dissect the various predicate acts, is the fact that without probable cause, at page 71 of the joint appendix, they deliberately fabricated a felony charge.
06-219 +++$+++ 50048 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Now --
06-219 +++$+++ 50049 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And when he was acquitted of that by a jury that took 20 minutes, and said that they were outraged by the BLM, they found other things to do. They found other things --
06-219 +++$+++ 50050 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But he also lost the malicious prosecution suit, didn't he? Didn't he bring a malicious prosecution suit?
06-219 +++$+++ 50051 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He tried to do that.
06-219 +++$+++ 50052 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And he lost.
06-219 +++$+++ 50053 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He won some, he lost some, but the --
06-219 +++$+++ 50054 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Maybe he should have won. What's worrying me throughout, if you want to know --
06-219 +++$+++ 50055 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I sure do.
06-219 +++$+++ 50056 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. (Laughter.)
06-219 +++$+++ 50057 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is worrying me throughout is, put this case to the side. If the Court recognizes what I take it has not happened in the past, that there is an action for private people to bring against the government, Bivens, under the Fifth Amendment, all of a sudden vast numbers of regulations, the coal pillars in Holmes case, everything south of that will be suddenly in Federal court as people claim that what's going on with this regulation is there are individuals in the government who have gone too far, and they are just trying to get my property and the use of it, without paying a fair price. Now by the way, sometimes people in government do go too far, so many of those claims might have some justification. But suddenly I see the possibility of this kind of action becoming a major roadblock, an obstacle sometimes used unjustifiably, and not necessarily, not necessary, this kind of thing, to impose a roadblock to totally legitimate government regulatory action.
06-219 +++$+++ 50058 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, that -- that floodgates concern was addressed by this Court not long enough in Hartman v. Moore when the remedy in that case for a prosecution that was brought to retaliate against someone for the exercise of her First Amendment right was a Bivens action against the postal inspectors who made this all up. Now the Court there addressed the possibility that this would unleash a flood of lawsuits, and it said that over the past quarter century, there had been only 12 Bivens or 1983 actions against this kind of retaliation. I suppose that is because not that many postal inspectors or BLM guys think they can get away with deliberately retaliating against people for exercising their rights.
06-219 +++$+++ 50059 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You see, part of what's worrying me is that once you get into the Fifth Amendment, which is -- prevents the government from taking property for a public use without just compensation, the possibility of the legal imagination becomes endless. Because every time a person walks across the doorstep, every time a person wants to install a pipe in the basement, read the meter -- I mean, I can see possibilities of actions of this kind arising, and particularly when the government wants to buy it and is pointing out all the reasons why it should be sold. Is there a threat lurking in that conversation? You see what I'm worried about here, which wasn't present in the other case?
06-219 +++$+++ 50060 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I see, but it was present in Davis, Davis v. Passman, to which Justice Kennedy referred, already recognized a Bivens action for violating something even more capacious, due process, equal protection. When this Court said in Village of Willowbrook against Oleck that there is a cause of action even for the naked assertion that you're treating me differently, did that open huge floodgates? Have we been flooded? It seems to me that the Court has developed its own filters against the floodgate of retaliation claims. It's been --
06-219 +++$+++ 50061 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not sure, Professor Tribe, that the cases you cite at page 22, 23 of your brief really support your position. The question is whether there should be a freestanding cause of action for damages.
06-219 +++$+++ 50062 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
06-219 +++$+++ 50063 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And in the brief you say that the government says that this is limited First Amendment, and then you say, "These remarkable claims are unsurprisingly false." I thought that was a rather severe charge against the government, that it's misrepresenting its cases.
06-219 +++$+++ 50064 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Uh-huh.
06-219 +++$+++ 50065 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Then in page 22 and 23, you go ahead and you talk about Wisconsin versus Yoder, Lefkowitz versus Turley, Bordenkircher, which I think was vindictive prosecution or adding on charges. All of those are in the -- every one of these cases are in the context of a criminal proceeding. Griffin, a murder case. It's just alleging a constitutional --
06-219 +++$+++ 50066 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But many of them are not, Justice Kennedy.
06-219 +++$+++ 50067 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- alleging a constitutional claim. Well, which one?
06-219 +++$+++ 50068 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, for example, Shapiro v. Thompson. The Court has said that the right to travel cannot be penalized. The broad point that --
06-219 +++$+++ 50069 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, no. That was, there was an existing case or controversy there. That wasn't a freestanding cause of action. None of these cases are freestanding. Davis versus Passman, different.
06-219 +++$+++ 50070 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And Hartman v. Moore, different. What we were answering there was not the point about a freestanding cause of action.
06-219 +++$+++ 50071 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it seems to me that those cases do not support your position, and I don't think it's correct to say that this is unsurprising, that the government makes a false representation about cases.
06-219 +++$+++ 50072 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Kennedy, that was a response to their claim, that only with respect to the Fifth Amendment is there a right. This was not the Bivens question. Only with respect to the Fifth -- First Amendment is there a right not to be retaliated against for the exercise of your rights.
06-219 +++$+++ 50073 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think it was in the context of a freestanding right, but let's leave that aside.
06-219 +++$+++ 50074 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We can look at it.
06-219 +++$+++ 50075 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's right. It does seem to me that you are asking us to extend Bivens, this is an extension. Would you accept that?
06-219 +++$+++ 50076 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the sense that there has never been a case just like it under Hope v. Pelzer, there doesn't have to have been one like it. But we do think that there is a compelling case, because there's no other way to enforce the just compensation right against a group of government agents who are determined to pile punishment upon punishment until someone caves in.
06-219 +++$+++ 50077 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you say -- you call it punishment, but in fact the government's position on each of these particulars has generally been vindicated. When your client has appealed, they've upheld the trespass citations. When you've sued for malicious prosecution, the suit's been rejected. Which of the government actions do you not have an existing remedy for, apart from the Racketeer and Corrupt -- RICO Act or the, this new Bivens claim?
06-219 +++$+++ 50078 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, it is the retaliatory pattern that there is no remedy for. When going --
06-219 +++$+++ 50079 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can you point to any one governmental action for which you do not have an existing remedy?
06-219 +++$+++ 50080 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the action of falsely prosecuting him in retaliation --
06-219 +++$+++ 50081 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You have a malicious prosecution claim for that. You brought that, you lost.
06-219 +++$+++ 50082 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, we did not bring a malicious prosecution claim for that felony charge.
06-219 +++$+++ 50083 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You could have brought one.
06-219 +++$+++ 50084 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would have been against Federal officials and that would have been then transformed unless we brought it under Bivens, which is what we are trying to do, transformed into an action against the United States by the Westfall Act. That is all of these attempts --
06-219 +++$+++ 50085 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And then if you would have succeeded, you would have been compensated.
06-219 +++$+++ 50086 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For that one event from the United States, but the BLM agents would not have been deterred. In any event, Carlson v. Green --
06-219 +++$+++ 50087 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but the theory of the Tort Claims Act is that if the government is paying out of the treasury, it's going to see to it that its employees don't continue to commit the tort. So I don't think -- I don't think you can make the argument that it would have had no effect on the improper behavior.
06-219 +++$+++ 50088 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the most important point that I'm trying to make, Justice Souter and Mr. Chief Justice, that when someone says, I do not want to give you my property, you have to take it from me and give me just compensation, the position of the Government here is that there is no constitutional limit on the kind of retaliation they can engage in.
06-219 +++$+++ 50089 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if the position of the Government were more fairly represented they would say, we don't want everyone to be able to claim that everything we're doing under color of law is retaliation, because then we'll hear that against IRS agents, we'll hear it against OSHA agents. So long as you -- and their position is you have a remedy for everything you're complaining about, and you invoked some of them and you lost, you didn't invoke others and so you didn't prevail. But don't create a whole new remedy just because you're dissatisfied with having to pursue each one individually.
06-219 +++$+++ 50090 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Bivens as a constitutional tort is not a new remedy. The question really is whether there is any conceivable basis when they trash his lodge, when they do all of the other things, for treating this differently from another kind of constitutional violation. I mean, they argue that it's very important, even though we could have lots of people bringing unjustified suits, to have a Bivens remedy for retaliation against free speech. The reason that they give is that free speech is easily chilled. But with property rights the Just Compensation Clause is kind of its own antifreeze.
06-219 +++$+++ 50091 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. The reason would be probably that the, if you can make a comparison. The number of Government actions that affect criminal charges and so forth are tiny compared to the number of governmental actions that affect people's property. Virtually, I mean the number of Government actions affecting how people use their property, it's the whole series of law books. It fills the room. And suddenly to open up a new remedy in that kind of thing is what's frightening me, which is what I said already. So you don't have to answer.
06-219 +++$+++ 50092 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But Justice Breyer, the Court has established in the area of retaliation against people for the exercise of their rights, Title VII rights in Burlington, First Amendment rights --
06-219 +++$+++ 50093 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Retaliation, what is retaliation? Isn't retaliation statutory?
06-219 +++$+++ 50094 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's statutory.
06-219 +++$+++ 50095 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Hartman is not statutory. Some of the -- Hartman is the First Amendment, and it's the Bivens case. The point I was trying to make about that is that the Court has a body of law trying to filter out through requiring proof of causation, requiring proof of substantial injury, filter out these trivial cases where someone is simply making a nuisance.
06-219 +++$+++ 50096 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Tribe, could I ask a question about the RICO claims?
06-219 +++$+++ 50097 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly.
06-219 +++$+++ 50098 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Until I read this case, I had never come across the concept that a Government employee can be guilty of extortion by demanding money for the Government and your brief didn't cite very much authority for this anywhere in the history of extortion.
06-219 +++$+++ 50099 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the common law history, Justice Alito, we cited two cases from New York, the Whaley case in 1827 and Willett in 1915. And it was that body of New York law from which the Hobbs Act largely drew. Those were cases in which the courts said that the fact that the government agent is extorting property for his own employer the government doesn't make any difference; it is still extortion.
06-219 +++$+++ 50100 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's not a lot of, that's not a lot of authority, considering the long history of extortion, just two old New York cases.
06-219 +++$+++ 50101 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are plenty of cases, Justice Alito, that involve extortion for one's employer where the employer might be a union or a corporation or a charitable body. But it's true the Hobbs Act has not been applied, in my research anyway I have not seen it applied, to this kind of extortion. But the language clearly covers it and the language of RICO clearly covers it.
06-219 +++$+++ 50102 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose you have a librarian in a courthouse and the librarian is charging lawyers 25 cents a page for photocopies, but there's some library rule that says the fee is supposed to be 10 cents a page. Now is that, is that a RICO?
06-219 +++$+++ 50103 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the librarian thinks that, the legislature is not giving us enough money, so I'm going to deliberately use my authority to get an extra five cents from everybody, I suppose if you could prove willfulness, which is an important element of Hobbs, and if there were several librarians and there was a pattern and you could establish the other prerequisites of RICO, it could be a RICO violation.
06-219 +++$+++ 50104 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the two cases you cite, the first one is the person who was charged with extortion is a judge --
06-219 +++$+++ 50105 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
06-219 +++$+++ 50106 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And he was extorted on the ground that he told the plaintiff to pay the defendant, so the money wasn't given to the government. So I don't see that that's a difference. And then the second case --
06-219 +++$+++ 50107 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The second case --
06-219 +++$+++ 50108 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- it may have been, but you say "See Also," which is a sign to me there's something wrong with that case. (Laughter.)
06-219 +++$+++ 50109 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't, I don't think there is, Justice Breyer, and it's very short.
06-219 +++$+++ 50110 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm surprised that you didn't put it first if there wasn't. Page 49.
06-219 +++$+++ 50111 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Willett versus Devoy, it involved a clerk demanding more money than the law allowed, and the court said: "No distinction is made on the ground that the official keeps the fee or turns it over to the government. Such a judge-made restriction on the general statute requiring that the money be kept by the individual might itself bring about uncertainty, confuse and possibly great injustice."
06-219 +++$+++ 50112 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why did you say "See Also"?
06-219 +++$+++ 50113 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't remember.
06-219 +++$+++ 50114 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You say this clearly establishes. Are the BLM folks supposed to have known about Willett versus Devoy?
06-219 +++$+++ 50115 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No.
06-219 +++$+++ 50116 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- as clearly establishing their liability for what you call extortion? I'm sure what they would call trying to save the taxpayers money and getting the type of reciprocal agreement with this landowner that they have got with thousands of others.
06-219 +++$+++ 50117 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Mr. Chief Justice, first of all, when you keep calling it a reciprocal agreement it does trouble me. They weren't giving him anything for this easement which they had already extracted from his predecessor.
06-219 +++$+++ 50118 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You agree if the case were otherwise -- and I gather we have a factual dispute on that -- that it would have been all right? I mean, if he didn't have this other easement already, but they were trying to negotiate it, that this type of playing hardball, I guess is one way to put it, would be all right?
06-219 +++$+++ 50119 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It makes all the difference in the world. They were trying to get the easement for nothing. I mean, it's very much --
06-219 +++$+++ 50120 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's what I'm trying to get, to see if you agree with that. In other words, everything about this case would otherwise be, I'm sure not breaking the laws, but otherwise it would be all right if they were trying to get a reciprocal easement?
06-219 +++$+++ 50121 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, most of what they did would not have been an okay method of getting a reciprocal easement, anyway. But the attempt to get it would be fine. It's not that they are not entitled to a reciprocal easement. That might have been a problem under Nollan and Dolan to figure out whether there was enough connection, but I think there would have been enough. The problem was that they were using the right-of-way, which was long gone, as an excuse to get an invaluable piece of property that they had no right to get. They were then trying to -- they were basically saying, and they made it explicit, give us this easement for nothing or we'll bury you.
06-219 +++$+++ 50122 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Tribe, I'll tell what you troubles me about this case. There are overzealous government agents. There always have been and I am sure that, assuming all of the misbehavior described here is correct, I'm sure it is not the first time this has happened. Government agents sometimes get overzealous. But why should there be this extraordinary remedy when the overzealousness happens to be attached to a desire to get a piece of land, whereas if they had just picked on this guy because they didn't like the way he combed his hair or for any other reason and had done the same things you wouldn't have your Bivens action, right?
06-219 +++$+++ 50123 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Nor would Nollan have come out the same way if they weren't trying to get an easement in return for something which wasn't -- which you called extortion.
06-219 +++$+++ 50124 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. If they were trying to get some other property for it or, or, or money for it, it didn't turn --
06-219 +++$+++ 50125 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I guess the straightforward answer that I would give to your question I think is that the Constitution does guarantee that the Government cannot take your property for public use without just compensation.
06-219 +++$+++ 50126 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The whole spectrum of possible Government misbehavior, selective enforcement, the whole spectrum, the only, the only times we're going to allow a cause of action under Bivens or under, under not 1983 -- yes -- the only times we're going to do that is when there is a demand for property?
06-219 +++$+++ 50127 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You've certainly done it with respect to the Eighth Amendment. You've done it with respect to speech. You've done it with respect to --
06-219 +++$+++ 50128 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But Professor Tribe, all these cases are cases in which there is -- Nollan, you have a cause of action to challenge the permit and this is just a, this is just a constitutional defense. That's different from a freestanding cause of action. And I share Justice Scalia's concern. It seems to me in thinking about this case there is -- there could be something very wrong here, going after a person because of what he's done. Suppose the Government wants somebody to be a witness in a trial and he won't do it, and they go around hurting his business, they go around invading his property and so forth. That to me is outrageous and you might have an argument that there should be a Bivens cause of action for that. And Justice Scalia's question -- I had the same question -- is why do we think it to the property? The essence here, the essence of what's going on, is that they're being vindictive against this person. Now again, the cases you're citing, include Hartman, which is a free speech case which is different, really don't support you. I think this is an extension of Bivens.
06-219 +++$+++ 50129 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Kennedy, if it's an extension, it's I think implicit in Bivens' logic. Bivens deals with the cases --
06-219 +++$+++ 50130 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Fair enough, but it's an extension of Bivens.
06-219 +++$+++ 50131 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Fifth Amendment is different from the First, but is it different in a relevant way? The Just Compensation Clause does give the government an incentive, if they can avoid having to use eminent domain and tax the public, gives them an incentive to try to squeeze property out of somebody. If it has any incentive effect, it's one that points to the need for a Bivens remedy. Why is a Bivens remedy --
06-219 +++$+++ 50132 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But are they disabled from negotiating? If they go up to somebody and say, you know, we'd really like a right-of-way because we have some interest in lands that we need to maintain on the other side, and the person says, no and, you know, get off my property, do they have to shrug their shoulders and say all right? Or can they say, well, you know, we're neighbors, we have a lot of interests in common and we should work together? Is that all of a sudden extortion?
06-219 +++$+++ 50133 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Mr. Chief Justice. Working together is what this guy tried to do at the beginning. He said, I'm happy to negotiate.
06-219 +++$+++ 50134 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So how many trespass --
06-219 +++$+++ 50135 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They said: We don't negotiate.
06-219 +++$+++ 50136 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- citations for his cattle does it take before it's all of a sudden extortion?
06-219 +++$+++ 50137 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The record in the case shows that on those very instances where he was cited with trespass others who were doing the identical thing were not. And the IBLA has said --
06-219 +++$+++ 50138 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And he challenged the citations and they were rejected.
06-219 +++$+++ 50139 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The IBLA rejected them because it said it has no jurisdiction. This was at -- in its decision at 170 IBLA in 2006. No jurisdiction to consider whether the motive was retaliatory, whether it was unconstitutional, whether it was part of a pattern. And this Court has said that one can't use the APA in that way either. Nor could an injunction be used to get a pattern like this because of Rule 65D and International Longshoremen, try to frame an injunction saying: Don't keep trashing this guy and ruining his business and harassing and surveilling his guests and whatever else you can come up with in order to squeeze his property out of him. No other remedy will work.
06-219 +++$+++ 50140 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So are you saying that there was therefore no way short of Bivens even to challenge or even to vindicate his claim of selective prosecution.
06-219 +++$+++ 50141 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He could have taken that one item and under a decision like Hartman vindicated it. But as is clear from the way he tried to challenge these individual things and then concluded, as we explained in our brief, that it was taking years and costing hundreds of thousands of dollars more than was involved in each individual one, that was hopeless.
06-219 +++$+++ 50142 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I appreciate that, but I thought you made the further claim -- maybe I misunderstood it -- that if he had gone from the administrative tribunal, or attempted to, to get into the district court, he could not have gotten into district court under the act.
06-219 +++$+++ 50143 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, he wouldn't have had -- because he would have had no record. That is, the review under the APA by the district court would have been based on the evidentiary record he made. And the IBLA specifically ruled that it would not entertain evidence about the reasons that the BLM officials had for going after him. There would be no evidence to support his claim.
06-219 +++$+++ 50144 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Could he have gone into the district court and said, I tried to make a record but they wouldn't let me; let me make a record now? Could he have done that?
06-219 +++$+++ 50145 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe the district court's jurisdiction in reviewing a final agency action is limited to the agency record.
06-219 +++$+++ 50146 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. You can go to an agency and say, agency I want to do such and such, dah dah dah, here are my reasons. Agency says no. I want review.
06-219 +++$+++ 50147 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So a challenge to the IBLA's assertion --
06-219 +++$+++ 50148 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't know. You might have written to the Secretary of the Interior: Secretary, I want to you do such and such, please. No. Okay, review.
06-219 +++$+++ 50149 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, he did write to the Secretary of the Interior.
06-219 +++$+++ 50150 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And what happened?
06-219 +++$+++ 50151 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He was not given an answer. So what can one say? The district court decided -- lest you assume that because he wasn't given an answer he doesn't have a case, the district court said, as hard as it is to prove these things, he has substantial evidence that they were picking on him solely to get the property, not because they didn't like him, not for some other reason; they were trying to get property for which they were unwilling to pay. It's doubtful that they could have taken it by eminent domain because the laws limiting the ability of the BLM require proving necessity and there is nothing in the record suggesting that they needed this easement. There is plenty in the record suggesting that he couldn't access his own property as long as the roadway wasn't maintained in a passable condition, and one of the ways they retaliated against him was to refuse to maintain the roadway. The record is also clear that his business suffered greatly. So that if the result is that someone who is trying to insist that if you want my property, you have to take it by eminent domain and give me just compensation, can't get help in those other ways, this is crucial. What would have happened in Kaiser Aetna, if when the Government said we think we have an easement to the Laguna pond, instead of going to court, which they did and they lost, if they had said well we are going to ram our motor boats or invite people to ram their motor boats into your sailboat? We are going to ruin your business in the Kuapa pond until you give the public an easement. Only a Bivens cause of action which the Court has recognized in other areas, in other constitutional claims -- due process, free speech, Eighth Amendment -- only a Bivens cause of action is directly responsive to that.
06-219 +++$+++ 50152 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. A, an action against the Government for ramming your sailboat is directly responsive to that. You get -- you get full recovery.
06-219 +++$+++ 50153 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Westfall Act makes an exception when you are making a constitutional claim. That is, in 1988 when the Court passed the Westfall Act, there were two exceptions 2679B(2)(a) and (b) were constitutional claims and statutory claims.
06-219 +++$+++ 50154 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't need the Constitution to the sue the Government for ramming your sailboat. Basic state tort law.
06-219 +++$+++ 50155 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice --
06-219 +++$+++ 50156 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You can answer. (A little laughter.)
06-219 +++$+++ 50157 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It seems to me that state tort law does not get at the harm that he has suffered. It gets at each individual piece. But the main harm he suffered is that they are circumventing the Just Compensation Clause as the one way that the Fifth Amendment was designed to permit the Government to get property for public use. Thank you.
06-219 +++$+++ 50158 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Counsel.
06-219 +++$+++ 50159 +++$+++ TRUE +++$+++ MR. TRIBE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice.
06-219 +++$+++ 50160 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Garre, you have four minutes remaining.
06-219 +++$+++ 50162 +++$+++ FALSE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. First I want to clarify, the question of the assignment. And our position, it's always been our position that a new right-of-way had to be issued after the property was sold. And I'll point the Court to JA 84, which is where the BLM officials made clear at the outset that an assignment was required. Point the Court to JA 100 which is the right-of-way --
06-219 +++$+++ 50163 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They might have been lying about that --
06-219 +++$+++ 50164 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
06-219 +++$+++ 50165 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- just as they lied about a lot of other stuff, according to --
06-219 +++$+++ 50166 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Pointing to JA 100 which is the right-of-way, which says that in accordance with Federal regulations, and I point the Court to 43 CFR 2803, which discusses assignments and makes clear that assignments have to be approved.
06-219 +++$+++ 50167 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I thought there was something about Nelson having assigned his, the right-of-way that he had to the Government.
06-219 +++$+++ 50168 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, assignments have to be approved by the BLM. That's --
06-219 +++$+++ 50169 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. But it wasn't that it was a new assignment; it was the former owner assigned it and the BLA -- BLM approved.
06-219 +++$+++ 50170 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was never approved. And that's clear, there was never any valid assignment. That's why the reciprocal arrangement had to be negotiated anew and again, I point to 43 --
06-219 +++$+++ 50171 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, then why did you revoke it later, if it wasn't valid?
06-219 +++$+++ 50172 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it was revoked as part of the decision not to assign it. And that's clear from the decision canceling the right-of-way. There was no assignment that could be approved, and rents had not been paid on it. So it was combined with the assignment.
06-219 +++$+++ 50173 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why wouldn't there be an assignment? Why, why would the prior owner have any -- any interest in not assigning it?
06-219 +++$+++ 50174 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In order for the right-of-way, because these are rights-of-way to public lands. They have to approved by new -- once new property owners seek to assert them. And again the --
06-219 +++$+++ 50175 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The prior owner did assign it. The stopper was the BLM.
06-219 +++$+++ 50176 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But, but again it's clear -- and it was not approved, and one of the reasons it wasn't approved was because rents weren't paid and he wasn't agreeing by the terms and conditions of the regulations which are part of the right-of-way. And that's at JA 100. The next point I wanted to make, Justice Kennedy, is we agreed this would be a dramatic new extension of Bivens, and we agree with Justice Breyer, the problems or types of litigations that this new constitutional tort would create are really just -- the -- capable of the imagination.
06-219 +++$+++ 50177 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Davis versus Passman is a different context. But in theory is it consistent with what the Respondent asks?
06-219 +++$+++ 50178 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it's not. Because the Respondent here has more statutory and administrative remedies available to him than the plaintiff in Passman did, including claims under the Federal Tort Claims Act for trespasses, for any of the other alleged wrongs that you've heard about here today. These were -- these were wrongs that were addressed by the IBLA and the APA.
06-219 +++$+++ 50179 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But their argument is broader. It says you can't look at each little piece. You've got to look at the overall structure, and overall they are doing it to extort a property right they don't want to pay for, and they are not doing -- other people's cattle cross over and they don't prosecute them. Now, let's assume that's correct on the facts. Are you saying that they have no remedy for that type of extortionate activity?
06-219 +++$+++ 50180 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They don't have a Bivens remedy and they don't have a RICO remedy. I'd point the Court to Lujan versus National Wildlife Federation, where the Court said that in that situation what a plaintiff must do is challenge each administrative action individually, and the types of programmatic pattern challenges are for Congress, they're for executive branches; they are for inspector generals.
06-219 +++$+++ 50181 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But what do you -- what do you say to the argument that -- that you simply cannot follow that logic ultimately, because when you get to the point of the sort of the, you know, the death by a thousand cuts, which is what they are claiming here, you can stitch up every cut, but by the time you get to a thousand, you're dead. I mean, they're making an argument that this is quantitatively so different that it is qualitatively different.
06-219 +++$+++ 50182 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the law and this Court reasonably assumes that where individuals have remedies available to them through challenging individual --
06-219 +++$+++ 50183 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why is that a reasonable assumption in response to their argument?
06-219 +++$+++ 50184 +++$+++ TRUE +++$+++ MR. GARRE +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's reasonable to assume that if there are actions against United States under the Federal Tort Claims Act, or actions finding Government conduct unauthorized under the APA, that the Government will take action to prevent that. Here every action that was challenged was found to be appropriate and lawful under the existing regime. We would urge the Court to reverse.
06-219 +++$+++ 50185 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. The case is submitted.
06-278 +++$+++ 50189 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ The Court will hear argument first today in case 06-278, Morse vs. Frederick. Mr. Starr.
06-278 +++$+++ 50191 +++$+++ FALSE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Illegal drugs and the glorification of the drug culture are profoundly serious problems for our nation. Congress has so recognized, as has this Court, time and again. The magnitude of the problem is captured in the amicus brief, the Court has a number of amicus briefs before it, but the amicus brief of General McCaffrey, Secretary Bennett, and a number of organizations. And particularly, pages 5 to 9 of that brief, the nature and the scope of the problem are well-captured.
06-278 +++$+++ 50192 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, is this case limited to signs about drugs? What is the rule that you want us to adopt for deciding this case?
06-278 +++$+++ 50193 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The rule the Court -- that it articulated in Tinker. The rule of the Court as articulated in Tinker is that there is, in fact, a right to political speech subject to disruption, requirements that the speech not be disruptive.
06-278 +++$+++ 50194 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Disruptive of what? Disruptive of the classroom order? There was no classroom here.
06-278 +++$+++ 50195 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Including but not limited to. This was a school authorized event, this was education outside of the classroom. It was essentially a school simply out of doors. It was essentially --
06-278 +++$+++ 50196 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I can understand if they unfurled the banner in a classroom that it would be disruptive, but what did it disrupt on the sidewalk?
06-278 +++$+++ 50197 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The educational mission of the school.
06-278 +++$+++ 50198 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but I mean, that's at a level of generality that doesn't get us very far. I mean, what specifically did it disrupt? Did it disrupt the parade, did it disrupt teaching, what was it?
06-278 +++$+++ 50199 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ 5520, a school policy of the board that says emphatically that political speech is protected, embracing Tinker.
06-278 +++$+++ 50200 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then if that's the rule, the school can make any rule that it wants on any subject restrictive of speech, and if anyone violates it, the result is, on your reasoning, it's disruptive under Tinker.
06-278 +++$+++ 50201 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not at all. I think that in form --
06-278 +++$+++ 50202 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then I'm missing the argument.
06-278 +++$+++ 50203 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The argument is that this Court in Tinker articulated a rule that allows the school boards considerable discretion both in identifying the educational mission and to prevent disruption of that mission, and this is disruptive of the mission --
06-278 +++$+++ 50204 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, suppose you have -- suppose you have a mission to have a global school. Can they ban American flags on lapel pins?
06-278 +++$+++ 50205 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely not, because under Tinker that is political expression. Let me be very specific. This case is ultimately about drugs and other illegal substances.
06-278 +++$+++ 50206 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So if the sign had been "Bong Stinks for Jesus," that would be, and Morse had the same reaction, that this was demeaning to the Olympics and it was unruly conduct, that there would be a protected right under Tinker because the message was not promoting drugs?
06-278 +++$+++ 50207 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ She stated in her answers to interrogatories that she may very well not have interfered with the banner had it in fact said legalize marijuana. Under our theory, we think she could have interfered with that because it was disruptive to the event, it was disorderly to the event itself, but the --
06-278 +++$+++ 50208 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What would be disorderly? I don't understand this disorder. If somebody holds up a sign and says change the marijuana laws, why is it disruptive of anything, simply because the school quite naturally has said we support the enforcement of the law, and the law right now does forbid the use of marijuana.
06-278 +++$+++ 50209 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I --
06-278 +++$+++ 50210 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's political speech, it seems to me. I don't see what it disrupts, unless disruption simply means any statement of disagreement with a position officially adopted by the school. Is that what you mean by disruption?
06-278 +++$+++ 50211 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Your Honor, first of all, this is, I think, an unusual characterization, namely for this to be called political speech. We would --
06-278 +++$+++ 50212 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If it's calling -- I mean --
06-278 +++$+++ 50213 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We think it's a First -- I'm sorry.
06-278 +++$+++ 50214 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ A call for a change in the law, I would have supposed, was political speech.
06-278 +++$+++ 50215 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That wasn't the interpretation. Your Honor, let's back up, if I may. Someone has to interpret the message and the front line message interpreter is the school official. The school official --
06-278 +++$+++ 50216 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that may be, but that's not the hypo. The -- the hypothetical is, what if there is a sign or a statement in the school calling for a change in, you know, the prohibition against marijuana use? As a call for change in the law, I would suppose it was political speech. But as I understood the argument you were making, it would still be regarded as an exception, as it were, to Tinker, because it was disruptive. And it was disruptive in the sense that it disagreed with official school policy, which was to enforce the law or support the law as it was. Is that your position on what disruption means under Tinker?
06-278 +++$+++ 50217 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But our -- the answer is no. Because what we are also urging the Court to consider is its gloss on Tinker and Frazier, and also what this Court said in Kuhlmeier. And in Frazier, the Court was very clear, the first three paragraphs in part three of the opinion, in talking about the habits and manners of civility, and inculcating the values of citizenship. That, in fact, is what is happening here. There is an effort of the -- to prevent a message that is inconsistent with a fundamental message of the schools, which is the use of illegal drugs is simply verboten, and we believe that is permitted under Tinker --
06-278 +++$+++ 50218 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you want to get away from a hypothetical then. I don't know why you try to defend a hypothetical that involves a banner that says amend the marijuana laws. That's not this case as you see it, is it?
06-278 +++$+++ 50219 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's certainly not this case, but --
06-278 +++$+++ 50220 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This banner was interpreted as meaning smoke pot, no?
06-278 +++$+++ 50221 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It was interpreted -- exactly, yes. It was interpreted as an encouragement of the drug culture and --
06-278 +++$+++ 50222 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you arguing that there should be a sui generis rule for speech that advocates illegal drug use, or this broader argument that the school can suppress any speech that is inconsistent with its educational mission as the school --
06-278 +++$+++ 50223 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that --
06-278 +++$+++ 50224 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- defines it?
06-278 +++$+++ 50225 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I apologize. The Court can certainly decide this on very narrow grounds, that there are certain substances, illegal drugs, we would include alcohol and tobacco, that's part of the school's policy, because those are illegal substances which are very injurious to health. And this Court has noted that in Bernonia and in Earls, time and again, it is that these are very dangerous substances and we have a clear policy sanctioned by Congress, and also noted by courts across the country, that illegal drugs are so dangerous that schools are entitled to have a message going --
06-278 +++$+++ 50226 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the problem -- the problem, Mr. Starr, is that school boards these days take it upon themselves to broaden their mission well beyond education or protection from illegal substances, and several of the briefs have pointed out school boards have adopted policies taking on the whole range of political issues. Now, do they get to dictate the content of speech on all of those issues simply because they have adopted that as the part of their educational mission?
06-278 +++$+++ 50227 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, because that may very well be inconsistent with Tinker. Tinker articulates a baseline of political speech is, in fact, protected, subject to --
06-278 +++$+++ 50228 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I think that -- I think you're right about that, and I guess my question goes to how broadly we should read Tinker. I mean, why is it that the classroom ought to be a forum for political debate simply because the students want to put that on their agenda? Presumably the teacher's agenda is a little bit different and includes things like teaching Shakespeare or the Pythagorean Theorem, and just because political speech is on the student's agenda, I'm not sure that it makes sense to read Tinker so broadly as to include protection of those, that speech.
06-278 +++$+++ 50229 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court has not read Tinker quite so broadly in both Frazier and in Kuhlmeier, and there are a couple of aspects of Tinker that I think are worthy of note. One, that there was no written policy there, so there was an issue of standardless discretion being exercised. And also --
06-278 +++$+++ 50230 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it may have made a difference in Tinker. If the school had a policy, defend our troops in Vietnam, would that have brought this into the category that you are now carving out? You said that Tinker had no policy, but suppose the school did have a policy, patriotism, we support our troops, no bad speech about the war in Vietnam. Should Tinker have come out the other way?
06-278 +++$+++ 50231 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it should not, because there -- I think there are concerns with respect to what this Court has identified it is trying to, even in the public school setting, quite apart from the university setting, to cast a pall of orthodoxy to prevent the discussion of ideas. What is happening here of course in this case, it can be decided very narrowly, that drugs, alcohol and tobacco just have no place in the schools. And --
06-278 +++$+++ 50232 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes, but the rule you proposed, I thought, in response to my question is that the school has wide discretion to define its educational mission and it can restrict speech that's inconsistent with that mission.
06-278 +++$+++ 50233 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that's what this Court in --
06-278 +++$+++ 50234 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And it seems to me that's much broader than Tinker. Now you said, well, there is an exception for political speech. Well, but then you're right with Justice Ginsburg's hypothetical, let's suppose that they have a particular view on a political issue, No Child Left Behind, or foreign intervention and so forth.
06-278 +++$+++ 50235 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Kennedy, the words that you articulated are essentially quotes of Frazier and Kuhlmeier, so there is a broadening of the lens and a restoration, frankly, of greater school discretion in those two cases than one might see in Tinker. They of course drew, as you well know, from Justice Black's warning in dissent of Tinker that the Federal courts, Federal judiciary should not be extending itself unduly into the work of the school boards' --
06-278 +++$+++ 50236 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why do we have to get into the question of what the school board's policy is and what things they can make its policy? Surely it can be the -- it must be the policy of any school to discourage breaking of the law. I mean, suppose this banner had said kill somebody, and there was no explicit regulation of the school that said you should not, you should not foster murder. Wouldn't that be suppressible?
06-278 +++$+++ 50237 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of course. That is not --
06-278 +++$+++ 50238 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Of course it would, so --
06-278 +++$+++ 50239 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The answer is yes.
06-278 +++$+++ 50240 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why can't we decide this case on that narrow enough ground, that any school whether it has expressed the policy or not, can suppress speech that advocates violation of the law?
06-278 +++$+++ 50241 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it can, but it raises some interesting potential hypothetical questions, what about listening to the voice of Martin Luther King Junior, conscientious objection and so forth. I don't think the Court needs to stray into those areas because here we have a written policy which does in fact respond to concerns about the exercise of standardless discretion.
06-278 +++$+++ 50242 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does it have --
06-278 +++$+++ 50243 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let me just clear up one thing to be 100 percent sure I understand your position. It does -- the message is the critical part of this case. If it was a totally neutral message on a 15-foot sign, that would be okay. You're not saying 15-foot signs are disruptive?
06-278 +++$+++ 50244 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not inherently disruptive, but in fact -- the answer is yes. We're not saying that
06-278 +++$+++ 50245 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And so we're focusing on the message and that's the whole crux of the case.
06-278 +++$+++ 50246 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's why this case is here because of the message.
06-278 +++$+++ 50247 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, why is that? Why? Why? I mean suppose you go on a school trip, and the teacher says on the school trip, I don't want people unfurling 15 foot banners. I don't care what they are about.
06-278 +++$+++ 50248 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It may very well be.
06-278 +++$+++ 50249 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We are going to visit the state capital and we are not marching down the street with 15 foot banners. I mean, does the First Amendment say the teacher can't say that?
06-278 +++$+++ 50250 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does not. But the Juneau school board and 5520, Justice Breyer, allows -- in fact it has a Tinker statement in the first paragraph of 5520, which is also, you will not be advocating drugs. And so there is essentially a culture of liberty in Juneau. You don't have to --
06-278 +++$+++ 50251 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You just said suppose -- why should I not say that? I mean I'm not going to do it, necessarily. But why could I not say, would it be wrong in an opinion to say a school board can on a school trip tell the students they can't unfurl 15 foot banners? Is that a correct statement of the law or not? In your opinion.
06-278 +++$+++ 50252 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In my opinion it is a correct statement of the law. But in response to Justice Stevens' question, the message here is in fact critical because what we know about this case is that, and you're here of course to respond to this case, which has to do with a message that the message interpreter, Deborah Morse, who by the way --
06-278 +++$+++ 50253 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's also critical here to your case that it was a school event. If it, if this had have been two blocks down the street there would have been no objection.
06-278 +++$+++ 50254 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If Mr. Frederick had seen fit to go down Glacier Avenue to J and J's, a popular hangout, there would have been no high school jurisdiction. There may have been elementary school -- but yes. He could have gone, Justice Stevens, to the State capital or anywhere along the ten mile route.
06-278 +++$+++ 50255 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose it were Saturday instead of a weekday.
06-278 +++$+++ 50256 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I beg your pardon.
06-278 +++$+++ 50257 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose it were Saturday, not a school day. And the school children were not required to show up at the Olympic event but were encouraged to and the same thing happened. Would it make a difference that it wasn't in the course of a regular school day?
06-278 +++$+++ 50258 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I think it still, under your hypothetical would be school sponsored. But there might be a more difficult showing of disruption or inconsistency with the educational mission. That is what this Court articulated in Frazier and again in Kuhlmeier that the school is able under our policies of federalism and value of federalism and democratic theory to fashion its educational mission subject to constitutional safeguards. And that mission of preventing the schools from being infected with pro-drug messages continues wherever there is school jurisdiction, and that would include on a Saturday field trip or other kind of activity and I think that --
06-278 +++$+++ 50259 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Starr, you -- you responded to Justice Breyer that you think the school could just prohibit the unfurling of 15 foot banners on a trip. Could it prohibit the wearing of black armbands on a trip?
06-278 +++$+++ 50260 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe so.
06-278 +++$+++ 50261 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And if not -- if not, what's the difference?
06-278 +++$+++ 50262 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because of the potential for disruption, disorderliness in the event and the judgment that is entrusted to --
06-278 +++$+++ 50263 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But don't we have to be more specific about the context in determining whether there's disruption? If it's a school trip to an art museum, unfurling a 15 foot banner in front of the pictures is clearly going to be disruptive of the object of the trip. Unfurling a banner in a classroom is going to be disruptive to the teaching of Shakespeare or whatever is supposed to be going on in there. What we have here is the unfurling of a banner on a sidewalk in a crowd with kids throwing snowballs waiting for some -- somebody to run by with a TV camera nearby. And there is a real question as to whether, it seems to me, as to whether it is in a kind of practical, real world sense, disruptive of anything. And if there is such a question, shouldn't the answer favor the right to, to make the speech as opposed to favor the right to suppress it?
06-278 +++$+++ 50264 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the answer is no. We do think that if the test that this Court has articulated which we embrace, looks not simply to "disruption" but inconsistency with what this Court has focused -- this Court's language, the basic educational mission, then surely --
06-278 +++$+++ 50265 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. Let me, let me follow, actually ask you the same question on -- on that. Because in response to Justice Scalia's question you said certainly that the school has got the right to have a policy that forbids violating the law and calling for violations of the law. Accepting that as a premise, don't we need, before the school may suppress the speech, don't we need at least a statement which is clearly inconsistent with that policy? And if that is so, is Bong Hits 4 Jesus inconsistent with it? It sounds like just a kid's provocative statement to me.
06-278 +++$+++ 50266 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, with all due respect, the key is to allow the school official to interpret the message as long as that interpretation is reasonable. You might disagree with that just as Justice Brennan disagreed with whether Matt Frazier's speech was all that terrible. But he said even though it wasn't all that terrible I nonetheless defer to the interpretation of school officials. That's what our educational system is about.
06-278 +++$+++ 50267 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But those were the words and characterizing them as offensive/ but here one could look at these words and say it's just nonsense. Or one could say it's like mares-eat-oats. It isn't clear that this is "smoke pot."
06-278 +++$+++ 50268 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, again, Deborah Morse, a conscientious principal, interpreted the message in light of the subculture of the school where drug use is a serious problem. And it was on the spot judgment. We believe that judgment was reasonable as opposed to a judgment reached in judicial chambers, but we know that that was also the judgment of the superintendent and district judge --
06-278 +++$+++ 50269 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is that a judgment clear enough as a matter of law, or is there possible debate as to whether that's a reasonable interpretation of the message? Let's assume it was an ambiguous message. Would we have to accept her interpretation on summary judgment?
06-278 +++$+++ 50270 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, I believe you do. And -- well, that's of course a question for the district judge. And here the judge analyzed the facts in terms of what the individual was trying to say and determined that that is a reasonable interpretation and that is all that is required under this Court's law. I'd like to reserve the remainder of my time. Thank you.
06-278 +++$+++ 50271 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. Mr. Kneedler.
06-278 +++$+++ 50273 +++$+++ FALSE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court. The First Amendment does not require public school officials to stand aside and permit students who are entrusted to their supervision and care to promote or encourage the use of illegal drugs. As this Court observed in Earls, the nationwide drug - drug epidemic makes the war against drugs a pressing concern in every school.
06-278 +++$+++ 50274 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And is that the rationale on which you wish us to decide this case, nothing more broad?
06-278 +++$+++ 50275 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Court need not decide anything more broadly than that.
06-278 +++$+++ 50276 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm asking what your recommendation is to what our rule should be this case.
06-278 +++$+++ 50277 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think this is a manifestation of the principle articulated in Earls and repeated in Hazelwood that a, school does not have to tolerate a message that is inconsistent with its basic educational --
06-278 +++$+++ 50278 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, that's a very -- I find that a very, a very disturbing argument, because schools have and they can defined their educational mission so broadly that they can suppress all sorts of political speech and speech expressing fundamental values of the students, under the banner of, of -- of getting rid of speech that's inconsistent with educational missions.
06-278 +++$+++ 50279 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's why I think there would, there would be, it would make a lot of sense for the Court to articulate a rule that had to do with encouraging illegal conduct and particularly --
06-278 +++$+++ 50280 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, why go into this? I mean, that's what I actually, seriously don't understand. Suppose the rule has the following rule: by the way, on our field trips you can carry around 15 foot banners. They can say anything. Except they can't talk about drugs and they can't talk about sex and they can't talk about -- I don't know. Or I'd say three things. Would that be constitutional?
06-278 +++$+++ 50281 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well -- I think, I think a school could certainly prohibit the display of banners on a school trip or in a school assembly.
06-278 +++$+++ 50282 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose that this particular person had whispered to his next door neighbor, "Bong Hits 4 Jesus, heh heh heh," you know. Supposed that's what had happened? (Laughter.)
06-278 +++$+++ 50283 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that may well -- that may well be different. And that's why I --
06-278 +++$+++ 50284 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. What would be different -- that's what I -- what a principal that has to act quickly sees across the street at a school meeting, a big banner go up making a joke out of drug use. So the principal acts. Now, are we supposed to divide that into little bitsy parts? Because as soon as we do we are going to get a rather interesting, complicated and very difficult set of constitutional rules. But you want us to do that.
06-278 +++$+++ 50285 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I do not. I think -- I think the point that you make that a principal sees the banner across the street and sees the word bong hits, and -- and at the very moment when the Olympic torch was about to arrive, I think it was. She made a quick judgment and an entirely reasonable one that the display of the slang words bong hits --
06-278 +++$+++ 50286 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, then you're not arguing for the broad educational mission, which is what you said at the first.
06-278 +++$+++ 50287 +++$+++ TRUE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there are several gradations that the Court could take: Advocacy of illegal conduct generally; more specifically advocacy of illegal drugs. But I believe -- I think it's important to recognize that this Court's precedents recognize -- recognize several different justifications for restricting student speech. In Tinker itself which dealt with political speech, the Court was careful to point out that even then, if the speech could be shown to present a threat of a material disruption to the class work, and I think this would answer your question, Mr. Chief Justice, if the teacher wants to teach Shakespeare, the teacher doesn't have to turn over the class to political speech.
06-278 +++$+++ 50288 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But that's a viewpoint-neutral regulation. This isn't, the principal didn't say this was a viewpoint-neutral regulation, did she?
06-278 +++$+++ 50289 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. No. And -- and, and just to finish, in Tinker even with a viewpoint concern, the Court said if you could show material disruption, and -- and the Court made that clear in Tinker, by, by its comparison to several lower court decisions where wearing buttons had been prohibited because they had caused disruption. And the third category in Tinker itself was where there would be an intrusion upon the rights of other students to be secure and be let alone. That's Tinker dealing with political speech. But in Frazier and Hazelwood the Court identified additional categories of speech that could be governed by the school, and this is in footnote 4 of Hazelwood. The Court made clear that the ability to regulate those categories of speech goes beyond the question of whether there would be disruption or whether there would be --
06-278 +++$+++ 50290 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So -- so you think that the, not a 15 foot banner but a very discrete button that says "legalize marijuana," although it might be covered as not being disruptive under Tinker, it could be inconsistent with the school's mission and prohibited on that basis?
06-278 +++$+++ 50291 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think -- I think if, if the button is legalize marijuana during a referendum in the State, then that, that might be the category of political speech that could not be regulated.
06-278 +++$+++ 50292 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And at -- at this very rally, I mean I thought your brief said that it's okay to work for change in existing law which such a sign would be, but it is not okay to violate the law. And no one was smoking pot in that crowd.
06-278 +++$+++ 50293 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But -- but the, what was happening was a sign that was reasonably construed to encourage the use of illegal drugs.
06-278 +++$+++ 50294 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right. Given the fact that this is a First Amendment case, isn't a court forced into the position if it's going to be consistent with what else we have said, even at the final appellate level, of giving pretty careful scrutiny to the statement itself in determining whether it may be suppressed or punished? And if we do that, is it such a reasonable construction that this is an -- an incitement to illegal drug use? I mean it's a statement which makes, makes the drug law look a little ridiculous, I think, but I'm not sure that that is very distinguishable from a statement saying "you ought to change the drug law."
06-278 +++$+++ 50295 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I -- I think in, in this Court's decisions dealing with public schools, this Court has, has a consistent theme as to give deference to the judgments by the educators. Public schools --
06-278 +++$+++ 50296 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do we have to give -- let me ask you this. And maybe this is the, as far as we can go with it here. Is that the answer to the question here about what the statement means?
06-278 +++$+++ 50297 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
06-278 +++$+++ 50298 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In other words, if we give deference your argument wins. But if we don't give deference, then does anybody really know what the statement means?
06-278 +++$+++ 50299 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think the question is what Mr. Frederick intended. The question is what a reasonable observer would think. And the words "bong hits" are slang that would be particularly, have a particular characteristic of getting across to other student, and they suggest a casual tolerance and encouragement of --
06-278 +++$+++ 50300 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What if the sign said "bong hits should be legal?"
06-278 +++$+++ 50301 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I, I think that would be a judgment call. I think the, I think the casual use --
06-278 +++$+++ 50302 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Under your view wouldn't the principal's judgment always prevail?
06-278 +++$+++ 50303 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well it has to be a reasonable judgment and this is, this is reflected in Frazier.
06-278 +++$+++ 50304 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is that a question of fact or a question of law?
06-278 +++$+++ 50305 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Pardon me?
06-278 +++$+++ 50306 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is whether it's a reasonable judgment --
06-278 +++$+++ 50307 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think ultimately it's a question of law, whether it's a reasonable judgment.
06-278 +++$+++ 50308 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This, this -- this parade had a theme to celebrate the Olympics, with -- the high school kids are carrying the torch, the band is in it. And suppose the banner said vote for, vote Republican, vote Democrat. And he wants to be on the TV with that. Could this, the principal make him take that sign out of the ground in that it's inconsistent with the whole theme of, of, of the parade? Something like our Kurle case?
06-278 +++$+++ 50309 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. I -- I mean, I think for this reason. This was essentially an outdoor assembly, where the -- whether the students were assembled to watch a particular different, just as in an indoor assembly.
06-278 +++$+++ 50310 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that different from the rationale you've put.
06-278 +++$+++ 50311 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Again, that's why I don't think there's any one single rule that governs all cases. This, this I think falls under the Frazier standard, where the Court said that, that schools have a duty to inculcate matters of civility and to prepare students for citizenship, and not violating the law is an important part of that and teachers' act in loco parentis. They act as guardians and they should be able to do, as this Court says in Earls, what a reasonable guardian would do. That would mean don't allow people to encourage lawbreaking.
06-278 +++$+++ 50312 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it wasn't, it wasn't like an assembly, was it? As I understand it, the children were released from school, but they were not required to attend this event and they were not required to stand in front of the school on the opposite side. They weren't monitored by their teachers, so they -- and there were nonstudents in the crowd. So it's not like a school assembly.
06-278 +++$+++ 50313 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The students' present at the event, presence as the event, was like an assembly. Students may go into an assembly hall and not have to sit with their class. They were released from class, but they were not released from school or school supervision. There were teachers around there and the school could define what is the nature of our assembly at this public event and, just as in, in the auditorium a school could say there will be no political banners or, frankly, no banners about anything other than what the event is --
06-278 +++$+++ 50314 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Were they required to go to this event and could they have skipped off and gone home without violating --
06-278 +++$+++ 50315 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They were not allowed to go home. They were required, they were required --
06-278 +++$+++ 50316 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They were required to attend.
06-278 +++$+++ 50317 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They were required to be there if the classroom teacher decided to let them go out there, but they were under school supervision at that time.
06-278 +++$+++ 50318 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Were they ever told what they were supposed to do in the sense did the school ever say, we are letting you out on the street to celebrate the Olympics and to do only that? Was, was there an object to this release from the school building that was ever conveyed?
06-278 +++$+++ 50319 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If I may, I don't think there's any question that he knew in advance that this was about the Olympics. That's why he made the sign. And they were released to go out and watch the torch go by. He hasn't raised any question of notice or due process concerns.
06-278 +++$+++ 50320 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Kneedler.
06-278 +++$+++ 50321 +++$+++ TRUE +++$+++ MR. KNEEDLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
06-278 +++$+++ 50322 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Mertz.
06-278 +++$+++ 50324 +++$+++ FALSE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice and may it please the Court: This is a case about free speech. It is not a case about drugs.
06-278 +++$+++ 50325 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's a case about money. Your client wants money from the principal personally for her actions in this case.
06-278 +++$+++ 50326 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He does have a damages claim against the school district and the principal, but that's by no means his chief object here. The overwhelming object is to assert his free speech --
06-278 +++$+++ 50327 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, would you waive damages against this principal who has devoted her life to the school, and you're seeking damages for her for this sophomoric sign that was held up?
06-278 +++$+++ 50328 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We are certainly willing to negotiate a minimum settlement of damages. That is not the object here.
06-278 +++$+++ 50329 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But there's a broader issue of whether principals and teachers around the country have to fear that they're going to have to pay out of their personal pocket whenever they take actions pursuant to established board policies that they think are necessary to promote the school's educational mission.
06-278 +++$+++ 50330 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is indeed a legitimate fear, Your Honor, and we believe the existing law takes care of it by requiring before qualified immunity can be breached that there be a demonstration that under the existing law at the time available to her --
06-278 +++$+++ 50331 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you think it was clearly established that she had to allow a student at a school- supervised function to hold a 15-foot banner saying "Bong Hits 4 Jesus"?
06-278 +++$+++ 50332 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it was clearly established at the time, Your Honor, that a principal could not engage in viewpoint censorship of a nondisruptive expression, under both Ninth Circuit law and this Court's law. The case had --
06-278 +++$+++ 50333 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Does that, does that general statement that you just made apply to all circumstances in which a student-teacher relationship might be involved? For example, in the course of teaching a class in Shakespeare would your rule prevail?
06-278 +++$+++ 50334 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The rule on qualified immunity?
06-278 +++$+++ 50335 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, the general rule which the teacher is supposed clearly to have known here. For example, in the Shakespeare class, kid doesn't, doesn't say anything. He doesn't yell or scream or even raise his hand. He just holds a little sign in the Shakespeare class that says "Bong Hits 4 Jesus." As I understood the general rule that you said the teacher was bound to know here, the teacher I suppose would be required or the school would be required to tolerate that sign in the Shakespeare class; is that correct?
06-278 +++$+++ 50336 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe the analysis would be the Tinker analysis in terms of substantial disruption of the lesson.
06-278 +++$+++ 50337 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, would there be a substantial disruption?
06-278 +++$+++ 50338 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would all depend on the circumstances. My guess is that if it were simply passively --
06-278 +++$+++ 50339 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If the kids look around and they say, well, so and so has got his bong sign again -- (Laughter.)
06-278 +++$+++ 50340 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ -- they then return, they then return to MacBeth. Does the -- does the, does the teacher have to, does the school have to tolerate that sign in the Shakespeare class?
06-278 +++$+++ 50341 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that in circumstances where it is a substantial distraction --
06-278 +++$+++ 50342 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can't it just say no signs when you're supposed to be learning?
06-278 +++$+++ 50343 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think the answer is yes if they had a content-neutral rule prohibiting signs in school. I believe that would be --
06-278 +++$+++ 50344 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But can't the school decide that it's part of its mission to try to prevent its student from engaging in drug use and so that it's going to have a viewpoint on drug use and that viewpoint is going to be that it's opposed to it and so that it takes a particular view with respect to signs that in their view seem to encourage drug use?
06-278 +++$+++ 50345 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly it is within the school's mission to discourage drug use. Certainly it has many tools to allow it to get its own viewpoint -- certainly it can -- it does not need to provide a forum in the school itself for students with a contrary viewpoint. But when a student is basically on his own time, whether it's outside of school --
06-278 +++$+++ 50346 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So your position would be different if this were in the student gym and they were having a discussion. There was a program to discourage drug use and he held up his sign; you would say it would be all right to take down the sign inside the school gym?
06-278 +++$+++ 50347 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I'm not so sure.
06-278 +++$+++ 50348 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it doesn't matter that this is outside. It matters on the content of the sign, not the location?
06-278 +++$+++ 50349 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, what matters is whether there is a substantial disruption of what the school is trying to achieve legitimately, whether it's a classroom lesson or a lesson on drug use.
06-278 +++$+++ 50350 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but the school has -- the school has a program, an anti -drug program that shows movies, it brings in policemen and social workers to preach against drug use and you're saying that -- never mind unfurling a banner. You're saying that it has to let students contradict this message it's trying to teach, to walk around, you know, with a button that says "Smoke Pot, It's Fun."
06-278 +++$+++ 50351 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe, Your Honor --
06-278 +++$+++ 50352 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does the school have to do that?
06-278 +++$+++ 50353 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe, Your Honor, that a nondisruptive pin, badge, whatever you want to call it, would have to be tolerated. However, they would not have to tolerate a student who interrupts a anti-drug presentation.
06-278 +++$+++ 50354 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the school, even though it is trying to teach one point of view, can allow students to come in and undermine that point of view, assuming that it's legitimate to teach that point of view? It can allow students to come in and undermine what it's trying to teach?
06-278 +++$+++ 50355 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that --
06-278 +++$+++ 50356 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that is not disruption in your view?
06-278 +++$+++ 50357 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think they cannot prevent presentation of a contrary viewpoint as long as it is done in such a way that it doesn't interfere with the school's own presentation of its viewpoint.
06-278 +++$+++ 50358 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can the student be allowed to wear a button that says "Rape Is Fun"?
06-278 +++$+++ 50359 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't think so --
06-278 +++$+++ 50360 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why?
06-278 +++$+++ 50361 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is a distinction there.
06-278 +++$+++ 50362 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why?
06-278 +++$+++ 50363 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because when you're talking about hate speech, speech that advocates violence, then you're in another category of speech. There has been general recognition --
06-278 +++$+++ 50364 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Nonviolent crimes are okay, it's only violent crimes that you can't, you can not promote, right? Right?
06-278 +++$+++ 50365 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think there is a --
06-278 +++$+++ 50366 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ "Extortion Is Profitable," that's okay?
06-278 +++$+++ 50367 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
06-278 +++$+++ 50368 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is a very, very, with all respect, ridiculous line. I mean, I can understand you're saying you cannot promote things that are unlawful, but to say, oh, it's only violent, where do you get that line from, only violent unlawful acts?
06-278 +++$+++ 50369 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I'm not saying only violent unlawful acts. But this is a case where if you look at it in the context of what was going on in the State at the time, where there was an active public debate on marijuana policy, on marijuana for medical use, marijuana for personal use, so it's --
06-278 +++$+++ 50370 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it's a political -- even assuming it's a political issue, the question is whether the school has to say our classrooms, our field trips, our sponsored and supervised activities are a forum for that debate?
06-278 +++$+++ 50371 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe it does not have to if being a forum would disrupt the school's own educational program and --
06-278 +++$+++ 50372 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And disruption does not include undermining the message they want to send? It has to be some type of physical disruption. But undermining the message they want to send, they can't make the judgment that that's not allowed?
06-278 +++$+++ 50373 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Preventing a contrary viewpoint from being expressed, that we --
06-278 +++$+++ 50374 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but you rephrased it that way, but what actually happened is the principal looks across the street, a 15-foot banner goes up at what's supposed to be a school event with everybody together in a single place, and it says a joke, it makes a joke out of drug use. The principal thinks of course adolescents and post-adolescents sometimes like to test limits, and if the kids go around having 15-foot banners making a joke out of drug use that really does make it a little tougher for me to convince the students at this school not to use drugs, and particularly putting up 15-foot banners. I don't know why everybody wants to get away from that because I think you would have had a very different case if in fact it had been a whisper or if it had been a serious effort to contest the drug laws. It wasn't either. It was a joke. It was a 15-foot banner. We have the message plus the means plus the school event. Now, what's your response?
06-278 +++$+++ 50375 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My response, Your Honor, is that, first of all, a 14-foot banner.
06-278 +++$+++ 50376 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's an excellent response, I think. (Laughter.)
06-278 +++$+++ 50377 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was just a preliminary. In fact, what it was was a person displaying this banner in a quiet, passive manner that didn't interfere with anybody's observation.
06-278 +++$+++ 50378 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I conceive that interference consists of it's pretty hard to run a school where kids go around at public events publicly making a joke out of drugs. That's what his thought is. Now, I don't think he has to be able to read content discrimination, viewpoint discrimination, time-place. He doesn't know the law, the principal. His job is to run the school. And so I guess what I'm worried about is a rule that would -- is on your side, a rule that takes your side; we'll suddenly see people testing limits all over the place in the high schools. But a rule that against your side may really limit people's rights on free speech. That's what I'm struggling with. Now, I want some help there and I'm worried about the principal.
06-278 +++$+++ 50379 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe the answer is that the Tinker case as we understand it struck a very wise compromise between allowing school officials to have complete discretion to suppress student speech in order to maintain what they conceive of as their individual mission and the student's right to speak in a nondisruptive manner. The speaker -- the Tinker case has stood the test of time for 40, almost 30 years and, although --
06-278 +++$+++ 50380 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you can say that, but the subsequent cases seem to me to try to cut back on it. I mean, it stood the test of time in the sense that it hasn't been overruled, but --
06-278 +++$+++ 50381 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There have been some narrow exceptions to it in subsequent cases, of course, the Frazier and the Kuhlmeier cases. But the basic, the heart of it, the requirement that the school demonstrate that substantial disruption before it can engage in suppression of --
06-278 +++$+++ 50382 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think we're using disruption in two different senses here and we should probably separate the two. One sense is disrupting the class so that whatever is being taught can't be taught. But you're also using it in the sense of undermining a general message that the school is trying to get across: Obey the law, don't use drugs, whatever. Maybe we should have a different word for -- the first is disruption. Disruption is a, is a funny word for the second. Let's called it undermining instead. Now, you think both of them, however, are bad and both of them can be a basis for suppressing the speech?
06-278 +++$+++ 50383 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If I understand your question correctly, the second of them might better be called allowing competing viewpoints.
06-278 +++$+++ 50384 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you think undermining is perfectly okay? You would never consider undermining to be disruption and therefore bad?
06-278 +++$+++ 50385 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think undermining in the sense of preventing impeding the school from delivering its own message --
06-278 +++$+++ 50386 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay, but only that.
06-278 +++$+++ 50387 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- would be substantial disruption.
06-278 +++$+++ 50388 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right after a class on drugs, he can be standing there in the hall and say: This class was ridiculous, drugs are good for you, I use them all the time, I urge all of you. That's perfectly okay? That's not undermining?
06-278 +++$+++ 50389 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that is the kind of speech --
06-278 +++$+++ 50390 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's not disruption?
06-278 +++$+++ 50391 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- that we must tolerate no matter how unwise it is.
06-278 +++$+++ 50392 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But couldn't the school, couldn't the school board have a time, place, or manner regulation that says you're not going to use the halls to proselytizer for your cause, whatever it may be?
06-278 +++$+++ 50393 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that's correct.
06-278 +++$+++ 50394 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You could have reasonable rules of decorum for what goes on inside the school building.
06-278 +++$+++ 50395 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
06-278 +++$+++ 50396 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does the school have to be completely neutral in that respect? Does it have to punish who says that was a good program, I'm not going to use drugs, and you shouldn't either, because he's taking position on a public issue?
06-278 +++$+++ 50397 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think a content neutral, content neutrality is critical here, and if the school wants to allow anti-drug comments, messages, then it has an outside of the official forum --
06-278 +++$+++ 50398 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where does that notion that our schools have to be content neutral -- I thought we wanted our schools to teach something, including something besides just basic elements, including the character formation and not to use drugs. They have to be neutral on whether you should use drugs or not?
06-278 +++$+++ 50399 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Content neutrality goes to what speech is suppressed or punished. As far as the school delivering its own message, there is no requirement of equal time or that it be neutral. It's got its own viewpoint in the case of drugs, a viewpoint that almost all of us agree with, and it should be able to espouse --
06-278 +++$+++ 50400 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ A school isn't an open forum. A school isn't there for everybody to teach the students whatever he wants. It's there for the teachers to instruct. And you're turning it into an open forum. If the school says, addresses one issue, everybody else has to be able to address that issue.
06-278 +++$+++ 50401 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't believe that's the case at all, Your Honor.
06-278 +++$+++ 50402 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's not my vision of what a school is.
06-278 +++$+++ 50403 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the classroom delivering the prescribed messages, in the school assemblies, when the school wishes to present a particular message, that's one case. However, in the lunchroom, outside in recess, across the street, that is a quintessentially open forum where it would not be proper, I think, to tell students you may not mention this subject, you may not take this position.
06-278 +++$+++ 50404 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But do you concede that there was some right of school control for what was going on across the street?
06-278 +++$+++ 50405 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Actually our primary position on that is that he was in a public place at a public event among public people --
06-278 +++$+++ 50406 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If kids were throwing bottles and injuring passers by, the principal had no right or duty to go over there and stop it?
06-278 +++$+++ 50407 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, I think if they were engaging in an act of hooliganism --
06-278 +++$+++ 50408 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's because the school has a right of control.
06-278 +++$+++ 50409 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is a distinction here. This young man had not been in school today, had not been an campus, was not in any class that was released to --
06-278 +++$+++ 50410 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why did he go where he went?
06-278 +++$+++ 50411 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Pardon?
06-278 +++$+++ 50412 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why did he choose that location to unfurl his banner?
06-278 +++$+++ 50413 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He explained because it was the only place where he actually knew the route of the relay.
06-278 +++$+++ 50414 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But I mean, that's -- I have, I guess his note, you accept this with what the teacher said. The entire class went to view the relay. Individual students -- this is at 9:30 in the morning. They were not given the option of remaining in class, nor were they released to do as they pleased. They were to watch the relay with the rest of the student body, either just in front of the school or just across the street -- that's me, not them -- and then return directly to their classrooms, which I guess the school did. So it sounds like you're going to one place, stand together, behave yourselves, watch the relay, and the teachers will be there and take you back to class. Now is there something else in the record that suggests something different?
06-278 +++$+++ 50415 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is a major dispute on that point, Your Honor. We presented several affidavits that showed individual teachers --
06-278 +++$+++ 50416 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Just tell me where to look. Where are the conflicting affidavits? I'm just reading from page 51 of the joint appendix. I didn't know there was a dispute.
06-278 +++$+++ 50417 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It would be on pages 32, 34, 36.
06-278 +++$+++ 50418 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay, I'll look at those. Another somewhat minor point. Can I ask you another point about the record? I'll read those.
06-278 +++$+++ 50419 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. Can I finish the description of what actually happened? According to the students, for those who were released from class, there was no requirement for staying on campus, and many of them did not stay on campus. No requirement for --
06-278 +++$+++ 50420 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, they went across the street.
06-278 +++$+++ 50421 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Some of them did. Some went down --
06-278 +++$+++ 50422 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Was there any -- there was no requirement, they didn't have to go across the street or stay on campus, they could wander off distantly.
06-278 +++$+++ 50423 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They could, and many of them did.
06-278 +++$+++ 50424 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Okay.
06-278 +++$+++ 50425 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And there was no requirement that they stay together, no requirement that they do anything in particular. They --
06-278 +++$+++ 50426 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I had to watch -- not even watch the parade, no requirement they watch the parade? They were released in order to watch the parade.
06-278 +++$+++ 50427 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was the intent, obviously, for those released.
06-278 +++$+++ 50428 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The intent, it was the direction.
06-278 +++$+++ 50429 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But --
06-278 +++$+++ 50430 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It was not only the intent, it was the direction.
06-278 +++$+++ 50431 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Actually it was not. According to these student affidavits, they were simply released and said, you can go watch --
06-278 +++$+++ 50432 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Was there any fact finding on that? You referred to affidavits.
06-278 +++$+++ 50433 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. It was decided on cross motions for summary judgment in the district court, and there were no findings, actually no factual findings at all, and certainly nothing on that particular point.
06-278 +++$+++ 50434 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can I ask you another record point, just so I know where to look?
06-278 +++$+++ 50435 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
06-278 +++$+++ 50436 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You've also asked for an injunction that would require expunging his 5-day suspension from his record.
06-278 +++$+++ 50437 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
06-278 +++$+++ 50438 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ 10 days. Well, 10 or 5, unclear. I noticed the superintendent of schools on page 66A when he's reviewing this, what he says is, "Joseph contends that all his behavior is excusable because he was exercising his free of speech right. Even if I were to concede his speech across from the high school is protected, which I do not, the rest of his behavior warranted the suspension." And then he says, "And I'm cutting it from 10 days to 5. So given that, if you win, suppose you were to win, and you -- that it is protected and so forth -- then would you concede or not concede the suspension, the 5 days, it's over, it still stands, I don't care about the expungement or not?
06-278 +++$+++ 50439 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- whether it remains on the record, anything that remains on his record is obviously much more --
06-278 +++$+++ 50440 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, but I'm asking that you think about it. I'm putting you on the spot.
06-278 +++$+++ 50441 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In that case, I missed the point of your --
06-278 +++$+++ 50442 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I want to know what the superintendent said. As I read it is, he says, look, I don't care if this was protected or not. I'll give you that. It's protected. But the rest of his behavior, the way he treated the principal, what he did, the reluctance, et cetera, et cetera, that warrants a suspension too, and I'm cutting it from 10 days to 5. So it sounds to me as I read it that the teacher is saying even if you're right, he's still suspended for 5 days. That's what the superintendent says. Now suppose you win your point that you're interested in winning, which you may not or you may. Are you still then going to pursue this case on the 5 days, that that should be erased?
06-278 +++$+++ 50443 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the only thing left were discipline because he was tardy that day, was -- didn't divulge the names of the other people holding the banner, that sort of thing, we couldn't --
06-278 +++$+++ 50444 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think it's --
06-278 +++$+++ 50445 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You couldn't what? I didn't hear the last part of what you said. You just got to the point of --
06-278 +++$+++ 50446 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of answering the question.
06-278 +++$+++ 50447 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes. What's the answer?
06-278 +++$+++ 50448 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Those things wouldn't manner anymore.
06-278 +++$+++ 50449 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So you would not pursue it?
06-278 +++$+++ 50450 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Correct.
06-278 +++$+++ 50451 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can we get back -- I'm sorry.
06-278 +++$+++ 50452 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Go ahead.
06-278 +++$+++ 50453 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can we get back to what the case is about. You think the law was so clearly established when this happened that the principal, that the instant that the banner was unfurled, snowballs are flying around, the torch is coming, should have said oh, I remember under Tinker I can only take the sign down if it's disruptive. But then under Frazier I can do something if it interferes with the basic mission, and under Kuhlmeier I've got this other thing. So she should have known at that point that she could not take the banner down, and it was so clear that she should have to pay out of her own pocket because of it.
06-278 +++$+++ 50454 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, there are two different time points we have to talk about. There's the heat of the moment out there on the street, but then later back in the office when she actually decided to levy the punishment after she had talked to him, after she heard why he did it and why he didn't do it, after she had had a chance to consult with the school district's counsel. At that point in the calmness of her office, then she should indeed have known it. And she did testify that she had taken a master's degree course in school law in which she studied Kuhlmeier and Frazier and Tinker. So --
06-278 +++$+++ 50455 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And so it should be perfectly clear to her exactly what she could and couldn't do.
06-278 +++$+++ 50456 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
06-278 +++$+++ 50457 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ As it is to us, right? (Laughter.)
06-278 +++$+++ 50458 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I mean, we have had a debate here for going on 50 minutes about what Tinker means, about the proper characterization of the behavior, the nonspeech behavior. The school's terms in dealing with the kids that morning. The meaning of the, of the statement. We've been debating this in this courtroom for going on an hour, and it seems to me however you come out, there is reasonable debate. Should the teacher have known, even in the, in the calm deliberative atmosphere of the school later, what the correct answer is?
06-278 +++$+++ 50459 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We believe at the very least she should have known that one cannot punish a nondisruptive holding of a sign because it said something you disagreed with.
06-278 +++$+++ 50460 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Of course I disagree with the characterization on disruptive. It was completely disruptive of the message, of the theme that the school wanted to promote. Completely disruptive of the reason for letting the students out to begin with. Completely disruptive of the school's image that they wanted to portray in sponsoring the Olympics.
06-278 +++$+++ 50461 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, they weren't sponsoring the Olympics, they weren't even sponsoring this event actually. They simply let the students out to watch it. That was --
06-278 +++$+++ 50462 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Some of the students were carrying the torch and the band was playing in the parade.
06-278 +++$+++ 50463 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A few of the student -- a few of the relay runners were from the school and had been allowed to skip school because of that, and the pep band played as it went by. I do not believe that made the torch relay a school event. The best that can be said for them is that they let the students watch it with the concurrence of individual teachers, and that that attendance was a school sanctioned attendance. Now whether that allows them to then engage in this kind of punishment for speech by a student who was not even among those released, who is standing --
06-278 +++$+++ 50464 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Now you said that in your brief, and I couldn't understand that somehow you got mileage out of his being truant that morning. Would the case have come out differently, would you be making any different argument if he got to school on time and was released with the rest of them? Does the case turn on the fact that he was late to school that day?
06-278 +++$+++ 50465 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We believe it would be a closer question, but the fact that he was not there in school today, and intentionally was not there today, turns this into a pure free speech case where you have a citizen in a public place in a public event who was not acting as a student.
06-278 +++$+++ 50466 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So he's not a school child, he would be playing hooky?
06-278 +++$+++ 50467 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because he was playing hooky because he chose not to be there, because he was not part of the class.
06-278 +++$+++ 50468 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Even though the law required him to be there?
06-278 +++$+++ 50469 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
06-278 +++$+++ 50470 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He wasn't playing hooky. He showed up late, that's all, right? I mean, he actually came and joined his classmates at an event that he knew was an event that the school told the classes to go to.
06-278 +++$+++ 50471 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He joined --
06-278 +++$+++ 50472 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ As far as I'm concerned, he just showed up late.
06-278 +++$+++ 50473 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He joined a public crowd on a private side -- public sidewalk in front of private homes. The crowd happened to have some other students in that school there.
06-278 +++$+++ 50474 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Where did he go immediately after? He went to the school building for whatever it was, the third period of the day.
06-278 +++$+++ 50475 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. The principal instructed him to do so and he did.
06-278 +++$+++ 50476 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So under your view, if the principal sees something wrong in the crowd across the street, had to come up and say now, how many here are truants and how many here are -- I can't discipline you because you're a truant, you can go ahead and throw the bottle. (Laughter.)
06-278 +++$+++ 50477 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't think she needs to do that in the heat of the moment. But later on once she's discovered the true facts, then at that point I think she loses a basis for punishing him as a student if he was not there as a student.
06-278 +++$+++ 50478 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because you're both a truant and disrupter, you get off. (Laughter.)
06-278 +++$+++ 50479 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Had you been just a disrupter, tough luck.
06-278 +++$+++ 50480 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it may well be that he could have been punished for being truant, but of course that's not why we're here. He was punished for displaying, for the content of the sign he was displaying in a public place as a private citizen.
06-278 +++$+++ 50481 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Who were the people that helped him hold up his flag? Were they not classmates of his?
06-278 +++$+++ 50482 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Most of them were classmates; at least one was not a student.
06-278 +++$+++ 50483 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did he not know that these classmates were there at a public event that was sponsored, not sponsored, but to which the school had directed the students to go?
06-278 +++$+++ 50484 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sure he did know.
06-278 +++$+++ 50485 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So it seems to me it's like joining a school trip at the zoo, you know. You -- you don't make it to the -- to the school, but you drive there yourself and then join the class as it's going through the zoo. It seems to me he's in school.
06-278 +++$+++ 50486 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A better analogy might be if he had gone on his own time to the zoo and was engaging in some expressive act, and there happened to be a school group there at the same time, could the teacher with that group then have disciplined him for what he was doing?
06-278 +++$+++ 50487 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That gets back to the point I was trying to make earlier. He came here because it was the school event, the school sponsored activity. He could have gone anywhere along the route. He knew that it was coming by the school, he knew that they were going to be, the students were going to be released to see it. He went to join up with the school even if he were truant that day.
06-278 +++$+++ 50488 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. I believe that's incorrect. There is nothing in the record that even suggests that he went there in order to join up with schoolmates or in order to be near the school. He says, in fact, he intentionally tried to avoid the school because he thought that that way he could avoid the school jurisdiction for his --
06-278 +++$+++ 50489 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You think he could have been marked absent for the whole day because he didn't intend to be part of the school group afterwards? I mean, suppose there's a suspension of so much for half a day truancy, and so much more for a whole day's truancy. And he shows up and he says, oh, you can't -- you have to hold me for a whole day's truancy because I didn't intend to be in school. I was in school but I didn't intend to be there.
06-278 +++$+++ 50490 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it would all depend on whether he --
06-278 +++$+++ 50491 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That doesn't make any sense to me. Does it depend on his intent, whether or not he intended to be a truant that afternoon?
06-278 +++$+++ 50492 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that would depend on the fact of whether he was a truant that afternoon.
06-278 +++$+++ 50493 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He was either in school or he wasn't in school.
06-278 +++$+++ 50494 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the morning he wasn't in school.
06-278 +++$+++ 50495 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In the afternoon he either was or he wasn't.
06-278 +++$+++ 50496 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the afternoon he was.
06-278 +++$+++ 50497 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And the question is whether joining the school group, intentionally joining the school group, going there because the school group was there, whether that places him in school.
06-278 +++$+++ 50498 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As a hypothetical, if he were intentionally joining a school group, I would have to say that puts him within whatever jurisdiction the school has.
06-278 +++$+++ 50499 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why does it matter? That is, why doesn't the -- you're suing the teacher or the principal and why wouldn't the issue be what that principal really reasonably thought the situation was? I mean, if a principal reasonably thought he was part of the school group, if the principal reasonably thought that this was a school outing, if the principal reasonably thought that students are staying together, why wouldn't that just be the ground on which you'd take the case, we should take it that way, because the principal reasonably thinks?
06-278 +++$+++ 50500 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As far as qualified immunity, I think that's correct, if she had a reasonable belief.
06-278 +++$+++ 50501 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But even on the merits?
06-278 +++$+++ 50502 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ On the merits I don't think so, because if he was not in fact there as part of a school group --
06-278 +++$+++ 50503 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Even if the principal couldn't tell him to take down the manner even if she thought he was part of the school group reasonably, if he really wasn't?
06-278 +++$+++ 50504 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do not believe there's anything in the law that allows a principal to convert a pure free speech exercise into a school exercise because it's --
06-278 +++$+++ 50505 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought you were going to appeal to the calm of her office the next day. I thought that was going to be your answer to my question. Whatever she thought at the time, she didn't think it later.
06-278 +++$+++ 50506 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask to you clarify one thing. I initiated this line of questioning when I said I was surprised that your brief made such a big deal that he was late to school. You would still be making the argument about the free speech right if he had diligently showed up for his math class first period in the morning, gone out with the others, and had his banner to unfurl when the torch came by?
06-278 +++$+++ 50507 +++$+++ TRUE +++$+++ MR. MERTZ +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct. We have two independent bases for defending him here. One is the pure free speech in a public place argument. That's the one that hinges on the fact that he was not among the released students. The other argument, which we believe in equally, is that even if it were a on-campus or on an extension of campus like a field trip, then under Tinker because it was not disruptive they cannot punish it. My time is up. I thank the Court.
06-278 +++$+++ 50508 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Mr. Mertz. Mr. Starr, you have a minute remaining.
06-278 +++$+++ 50510 +++$+++ FALSE +++$+++ MR. STARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ For the reasons that have been discussed, under no circumstances should Deborah Morse, a conscientious principal, be subjected to the possibility of punitive damages or compensatory damages. A very brief factual point. In light of the richness of the discussion with respect to the facts, I would guide the Court to page 109 of the joint appendix. This is Deborah Morse's interrogatory answer and there she sets forth the facts, and that bleeds into the law. To promote drugs -- and this is our fundamental suggestion and submission. To promote drugs is utterly inconsistent with the basic educational mission of the school, and for this Court to suggest to the contrary would really be quite inconsistent with much of its drug jurisprudence, Bernonia and Earls. The opinion of the Court in Earls 2002 is especially powerful with respect to the scourge of drugs and their dangers. More broadly, the Court does not need to go more broadly, but the Court has spoken more broadly with respect to the need to defer to school officials in identifying the educational mission. But we know that there are in fact constitutional limits. Those limits are captured in Tinker. A passive pure political speech that reflects on the part of the school board a standardless discretionary effort to squelch any kind of controversial discussion, that casts a pall of orthodoxy over the classroom. We are light years away from that. I thank the Court.
06-278 +++$+++ 50511 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you counsel, the case is submitted.
06-313 +++$+++ 50515 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument today in Case 06-313, Roper versus Weaver. Ms. Spillars.
06-313 +++$+++ 50517 +++$+++ FALSE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: While this Court has laid out a framework for reviewing prosecutors' closing arguments, the fairness standard established in Donnelly and Darden is by its nature a very general standard. Under this Court's interpretation of AEDPA, the State court should therefore be provided more leeway in reaching outcomes. Nevertheless, the Eighth Circuit afforded no deference to the Missouri Supreme Court's decision. Instead, its improperly substituted its own evaluation for the comments, looking at each of them in isolation and without considering the totality of the proceedings. That decision was wrong not only because the court of appeals failed to properly afford deference to the State court, but because when viewed within the entire proceedings the prosecutor's closing arguments did not deprive the Respondent of a fair trial. Applying AEDPA correctly, the Missouri Supreme Court decision was well within reason given, one, the nonspecific standard of fundamental fairness and the fact that this Court has never applied that standard to a penalty phase closing argument; and, two, because, considering the record in the entire proceedings of this case, the Respondent was not deprived of fundamental fairness.
06-313 +++$+++ 50518 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, we didn't -- haven't applied it to a penalty phase closing argument, but we've certainly applied the general standard to the penalty phase.
06-313 +++$+++ 50519 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. And it's certainly is not our argument that it would not apply to the penalty phase. However, there simply may be other considerations, because the fundamental fairness standard essentially answers the question, did the jury base their verdict on the evidence or did they base it improperly on the prosecutor's comments.
06-313 +++$+++ 50520 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask one sort of preliminary question. Supposing the prosecutor misstated the law in his closing argument. Would that be reviewable in this Court under AEDPA?
06-313 +++$+++ 50521 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it certainly could be. In Brown versus Payton there was certainly a concern about the --
06-313 +++$+++ 50522 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think his argument here contained any misstatements of the law?
06-313 +++$+++ 50523 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
06-313 +++$+++ 50524 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You don't.
06-313 +++$+++ 50525 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To help answer the question, though, in that context, Donnelly and Darden set down some general considerations that, while not exclusive, help provide the post and beams of the fundamental fairness standard. So even assuming that all of the statements were improper, those considerations when applied to this case show that the trial was not rendered unfair because of the prosecutor's argument. First, none of the comments misstated the evidence nor did they misstate the law.
06-313 +++$+++ 50526 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, just on your assumption, to make your hypothetical clear, you, you want us to assume that three or four times at least he violated a constitutional standard?
06-313 +++$+++ 50527 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
06-313 +++$+++ 50528 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I just want to know what arguendo assumption you are making.
06-313 +++$+++ 50529 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The assumption is that under the first tier in Donnelly and Darden that the statements were improper in the sense that within the context of the multi-factor kind of considerations, whether or not they were improper, because obviously --
06-313 +++$+++ 50530 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I mean, they'd be improper because they -- they were based on an emotional appeal that's improper?
06-313 +++$+++ 50531 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It could be improper in the sense that it was a misstatement of evidence. I don't know that impropriety would include necessarily emotional appeal. I mean, the Constitution does not require a trial devoid of emotion. However, impropriety under Donnelly and Darden was the first tier of the multi-tier kind of Fundamental fairness test. So even assuming that that first tier, that the statements were improper, they still did not rise to the level of fundamental unfairness. Secondly, none of the individual comments implicated the defendant's rights under the Fifth or Sixth Amendment, nor were they of the very specific kind of comments that this Court has found to violate the Eighth Amendment under Caldwell.
06-313 +++$+++ 50532 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Don't you think the argument based on the General Patton analogy told the jurors they had a duty to do what he suggested?
06-313 +++$+++ 50533 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. I would disagree.
06-313 +++$+++ 50534 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What is the relevance of that argument otherwise?
06-313 +++$+++ 50535 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would not -- it was not particularly relevant. It was probably an inartful attempt to imply or tell the jury that it was a difficult decision that they had ahead of them, one that they might --
06-313 +++$+++ 50536 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think if he said in so many words, you have a duty to return the death penalty, that would have been a misstatement of the law?
06-313 +++$+++ 50537 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, a duty to return the death penalty, which certainly is a misstatement of the law.
06-313 +++$+++ 50538 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you don't think this could be so interpreted? You don't think you could interpret that, that passage, that way?
06-313 +++$+++ 50539 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
06-313 +++$+++ 50540 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That passage was in the context of other statements in which I think it's fair to say that he analogized the role of the juror to the role of a soldier who has to have the courage and the duty to kill.
06-313 +++$+++ 50541 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think a reasonable interpretation of those statements could be that the duty was to make the decision whether or not to impose the death penalty.
06-313 +++$+++ 50542 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Wait. Why is it improper for, for the prosecution to argue that, given the facts of this case, given the aggravating factors and the lack of mitigating factors, the brutality of the crime, the only sensible decision for you ladies and gentlemen of the jury is the death penalty? That's an improper argument? Doesn't that amount to saying you have a duty to come back with the death penalty? Why can't the prosecution argue that?
06-313 +++$+++ 50543 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's certainly not improper to make statements based on inferences from the evidence.
06-313 +++$+++ 50544 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, do you think the Patton argument has anything to do with the evidence? I mean, the Patton argument -- correct me if I'm wrong, but I thought the argument that referred to General Patton was an argument that, number one, talked about his addressing the troops before battle. And he was telling the troops that unfortunately it is sometimes their duty to kill. And he said: Go out there and do your duty, which I assume any reasonable listener would say, go out there and kill. If a prosecutor, as in this case, tells that story and uses that analogy, it seems to me that the argument is not an argument based on evidence, but an argument based upon the situation, the situation of the jurors vis a vis a capital defendant. And I would suppose that the reasonable inference from the argument is that they have a duty to go out there to kill, to impose the death penalty. That does not sound to me like an argument based upon the evidence specific to this defendant and specific to this case. Now, am I wrong?
06-313 +++$+++ 50545 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. It certainly was not a statement on the evidence in sense of was it a discussion of the facts in the case. However, based on the totality of the entire proceedings, it's clear that that statement did not render the entire trial unfair because --
06-313 +++$+++ 50546 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I don't understand your concession. Surely, the prosecutor was not telling this jury that in all capital cases you have to come in with a death verdict. Surely, although he didn't explicitly mention the evidence, the underlying premise of his argument was sometimes when you have a case this bad, you have to do your duty. Nobody likes to kill, but just as soldiers sometimes have to do that if that's their duty, so also jurors, if you really believe that the evidence is so one-sided in favor of the penalty that the State is asking for, it's your duty to bring the death verdict. I don't see anything wrong with that.
06-313 +++$+++ 50547 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And Your Honor, to the extent that I would certainly agree that those arguments based on the strength of the case were not necessarily --
06-313 +++$+++ 50548 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I suppose your concession about the duty is based on Chief Justice Stone's opinion in Viereck, isn't it?
06-313 +++$+++ 50549 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in the sense that Viereck was not directly --
06-313 +++$+++ 50550 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Which did involve the very word "duty."
06-313 +++$+++ 50551 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry?
06-313 +++$+++ 50552 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Chief justice Stone's opinion in Viereck talked about telling the jury that they have a duty and condemned that. That's probably why you made the concession, I think.
06-313 +++$+++ 50553 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the concession is important to get beyond the statements in isolation, because --
06-313 +++$+++ 50554 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's not just in isolation. Didn't this prosecutor constantly say this case is not about Weaver, this case is larger than Weaver. I think several times in the closing the jurors were told: Think big, think the large picture, don't think about this individual.
06-313 +++$+++ 50555 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. However, the jury was also told that it was their discretion to spare his life at appendix 275.
06-313 +++$+++ 50556 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It is -- I agree with you, I agree with you that we should look at the whole picture. When I look at the whole picture -- I've actually got a little chart that my law clerk prepared. And what he did, he went through this and looked at a case called Newlon and it was the same prosecutor. And the prosecutor was told in that case just what he shouldn't do. And now if we look what he did in this case and look what he did in that case and look at the law, the whole thing, not just little bits, it looks like he did an awful lot of what he wasn't supposed to do. You're not supposed to give an argument that vouches as the U.S. attorney that I think that this is what you should do. So in Newlon he says: I'm talking to you as prosecuting attorney of the county, the top law enforcement officer. And here he says: I'm the top law enforcement officer and I decide in which cases we have the death penalty and not. Worse than Newlon, I would say. Then what you're not supposed to do is you're not supposed to tell them they're like soldiers. I mean, there's Supreme Court cases that say, don't tell them you're like a soldier doing duty. At least that's what all these prosecutors -- a case called Byron versus the United States. So in Newlon what he says is: I want to impress on you, this is a war and it's justifiable to kill in war. Here he says: As in the movie "Patton" and in the movie George Patton is talking to his troops because they're going out in battle like the soldiers. And then he says: And when you're a soldier, you know what to do when you put your hand in a pile of goo that a moment before was your best friend's face; you'll know what to do; and last July this defendant's face was a pile of goo. Okay, there we are. I mean, that sounds pretty emotional. It sounds like a soldier does his duty and you're doing it. And then another thing you're not supposed to do is you're not supposed to tell them it's their duty to the community. And this is just filled with instances where you hardly even know that there's a person called Weaver because he says: What you have to do here is send a message to the drug lords, send a message --
06-313 +++$+++ 50557 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Who said he was not supposed to do these things?
06-313 +++$+++ 50558 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, there's a brief --
06-313 +++$+++ 50559 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm sorry, counsel. Maybe, counsel, if you could answer that question?
06-313 +++$+++ 50560 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In Newlon, Your Honor, it was a due process case which the same prosecutor tried, and it was an Eighth Circuit case. And in that --
06-313 +++$+++ 50561 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And is that the law here?
06-313 +++$+++ 50562 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
06-313 +++$+++ 50563 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's not? Why did they file -- is this brief wrong, then, the brief of the former prosecutors giving the propositions that I just stated and have the Supreme Court case next to each one? Are they wrong, those prosecutors?
06-313 +++$+++ 50564 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ To the extent that Newlon sets out those arguments, no, that's not incorrect. Those arguments were made in Newlon. However, for two reasons Newlon is distinguishable. In this case there were curative instructions given to the jury. In Newlon there were no objections made. So in this case, when the prosecutor made the statement, for example, that, I'm the top law enforcement officer, there was an objection and there was a curative instruction. So it was not --
06-313 +++$+++ 50565 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was there with the Patton and the goo?
06-313 +++$+++ 50566 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There was not an objection -- there was an objection to the Patton, but it was overruled.
06-313 +++$+++ 50567 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Was there a curative instruction?
06-313 +++$+++ 50568 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, there was not.
06-313 +++$+++ 50569 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Counsel, I'm looking at the quote, the statement, the reference to Patton, and I have to say I don't read it as imposing a duty. It says what the prosecutor says is that sometimes you've got to kill and sometimes you've got to risk death because it's right. His point is that at some point, at some times, you have to impose death because it's right, not because it's your duty as a soldier. Now, where is the reference to you have this duty as a soldier in the prosecutor's statements?
06-313 +++$+++ 50570 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is none, Your Honor. And a reasonable interpretation of that comment is that he was imparting to the jury the duty to make the decision, not necessarily to impose the death penalty.
06-313 +++$+++ 50571 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In Viereck the words were: "This is war, harsh, cruel, murderous war." And the prosecutor went on to analogize the jury's duties to the duties of soldiers and he said: Do your duty. Do you think that's a lot different than this case?
06-313 +++$+++ 50572 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would distinguish Viereck on two grounds. One, it was not directly a due process case as this case is raised, because it was raised under this Court's supervisory powers. Secondly, in this case there was -- out of the eight separate comments that the Eighth Circuit found improper, only three of them were actually objected to, two of which were sustained and curative instructions were given.
06-313 +++$+++ 50573 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you just -- that's a bit inconsistent with your point that Newlon is distinguishable because there were no objections at all and that was the reason for the court saying this goes too far to the prosecutor. But now you say when there are objections --
06-313 +++$+++ 50574 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In Newlon the jury was never told to disregard the statements. In our case the jury was told to disregard the statements.
06-313 +++$+++ 50575 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Certain statements. There are were many objections made here that were overruled.
06-313 +++$+++ 50576 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct. There were 12 objections made total. Interestingly, though, the defense attorney did not raise objections to the majority of the comments that the Eighth Circuit found improper. Now, while that's not dispositive, I think that the defense attorney is certainly in the best position to judge whether or not a comment prejudices his client.
06-313 +++$+++ 50577 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ To that extent the two cases were the same because in Newlon there were no objections either.
06-313 +++$+++ 50578 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No objections at all. There were no objections at all. In our case there were 12 objections, so clearly the defense attorney was on the mark and was listening for prejudicial comments from the prosecutor. Of the eight comments that the Eighth Circuit found objectionable in this case, only three of them were objected to.
06-313 +++$+++ 50579 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think --
06-313 +++$+++ 50580 +++$+++ TRUE +++$+++ MR. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So assuming that the defense attorney was -- I'm sorry.
06-313 +++$+++ 50581 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There were two cases cited as involving the same prosecutor? Was it Shurn also?
06-313 +++$+++ 50582 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct.
06-313 +++$+++ 50583 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that there was a significant overlap in the three charges in the three cases. The prosecutor had been told in two of them, you went too far. In this one, just in terms of what the prosecutor said in the closing argument, is this less offensive or would you say they're all on a par?
06-313 +++$+++ 50584 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would actually -- if you compare the three arguments side by side, the prosecutor's statements were tempered in this case. The decision -- when he tried this case, it was approximately five weeks after the district court in Newlon had come down with the decision. And there are statements that he made in Newlon and Shurn that were not in this case. For example, in Newlon he said this is the worst case ever and in Shurn he said the same thing. He did he not say that in this case. So I think from -- if you do a side by side comparison, his statements were actually tempered.
06-313 +++$+++ 50585 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Could you tell us -- as you know, AEDPA has the decisions of settled precedents of the Supreme Court and there's the Supreme Court standard, a very general standard that we can get from Darden and Donnelly, although we didn't reverse there. I take it that the counsel for the Respondent is going to say: Well, this is a Federal standard, but the Eighth Circuit is entitled to apply the specificity and the application that it's given to this, so the Eighth Circuit's entitled to rely on its cases in reversing. Do you agree with that?
06-313 +++$+++ 50586 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
06-313 +++$+++ 50587 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I assume that's what they're going to tell us.
06-313 +++$+++ 50588 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, I would not agree.
06-313 +++$+++ 50589 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why.
06-313 +++$+++ 50590 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Clearly, it's not established law by this Court, and this Court has not specifically outlined the kind of post and beam that would result in a reversal in a penalty phase Closing argument.
06-313 +++$+++ 50591 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It says that in the text, doesn't it, "clearly established by the Supreme Court"? Is that not in the text of the statute?
06-313 +++$+++ 50592 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct, yes.
06-313 +++$+++ 50593 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So those things that are improper for a prosecutor to make in summing up in the guilt phase, are they then proper to say, exactly those things, in a sentencing phase with capital -- with -- you know, capital sentencing?
06-313 +++$+++ 50594 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Is it the same, the same arguments in the --
06-313 +++$+++ 50595 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There are a number of cases in this Court that say what a prosecutor can't say, guilt phase. All of them happen to be guilt phase, I guess. You can't, you know, vouch. You can't use too much emotion. You have to focus on what the defendant did, not on what somebody else did. I mean, there are a number of things. Now, do those -- is it fair or not fair to say that those precedents apply in the capital sentencing phase, too?
06-313 +++$+++ 50596 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it is fair to say that. But it is also fair to say that there may be other considerations that apply in the penalty phase that don't necessarily apply in the guilt phase.
06-313 +++$+++ 50597 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask you this question about your position: We are trying to find cases that clearly establish law by decisions of this Court. Do you include in that group of cases, cases such as Berger against the United States, and Viereck against the United States, which were direct review of Federal cases in which they say there was a denial of the fair trial, but they're not setting aside State cases? Would it be proper for the Court of Appeals to rely on those cases?
06-313 +++$+++ 50598 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. And this is why.
06-313 +++$+++ 50599 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even though those cases say in so many words it deprives you of a fair trial.
06-313 +++$+++ 50600 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Because of the very specific nature of the supervisory powers in those cases, I don't believe that in the larger context, the final standards, that we can say that those directly apply.
06-313 +++$+++ 50601 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If those direct Federal cases were interpreting the constitutional provisions directly, they would count as established law?
06-313 +++$+++ 50602 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly, yes, Your Honor. There was also no mechanism in this case for the jury to apply any of the improper remarks to their deliberations because they were properly instructed. Instructions which we presume that they followed. In this case, the court read the instructions to the jury before closing arguments, and a copy was also given to the jury to deliberate with. Four of those instructions, numbers 21, 28, 26, and 27, told the jury in various forms that it was their duty, and theirs alone, to render a verdict. The jury was also told in instructions 23, 24, and 26 that it was -- that their decision must be within the confines of the evidence. And thirdly, within the specific process laid out for finding ways -- mitigating and aggravating circumstances. And finally, the last instruction that the jury heard before closing arguments was that closing arguments were not evidence. It is counterintuitive to assume that the jury disregarded those instructions as a whole and instead improperly relied on the prosecutor's closing argument when they declined to find the one aggravating circumstance that the prosecutor spoke most about. At appendix 285 is the part of the closing argument where the prosecutor discussed the aggravating circumstances. He argued to the jury that all four applied, but spent most time speaking about number one, which was that he had killed for money. However, the jury did not find aggravator number 1. So the very aggravator that the prosecutor argued most about to the jury, they did not find. It's more reasonable to conclude that the jury made its decision based on the strength of the evidence and the strong evidence in support of the death penalty. Having rejected the misidentification defense, the jury necessarily found that the respondent was the passenger who had returned to the woods to shoot the victim several more times.
06-313 +++$+++ 50603 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I go back to my question? Because there's a legal question here about what law we can look to under AEDPA. And actually, of course, it is a question of whether AEDPA applies, I suppose. Because actually, wasn't this habeas petition filed two days before AEDPA was -- there's a footnote in the red brief that says -- raises that question.
06-313 +++$+++ 50604 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There was a habeas petition filed prior to AEDPA, but it was dismissed and he did not appeal from that. This was filed after AEDPA.
06-313 +++$+++ 50605 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That was a slip on the District Court's part, wasn't it? I mean, that original petition that was dismissed because he had filed a cert petition to this Court should not have been dismissed, it should have been held, in which case the petition would have been timely and would not have been trumped by an AEDPA variant.
06-313 +++$+++ 50606 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ However, Your Honor, he did not appeal from that.
06-313 +++$+++ 50607 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, didn't he seek a COA?
06-313 +++$+++ 50608 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, he did. However, he did not appeal --
06-313 +++$+++ 50609 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ This is a pro se prisoner. He gets his -- all the claims are exhausted, it's dismissed. And he seeks a COA on that point.
06-313 +++$+++ 50610 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ However, the parties have -- the respondent has not asserted that argument, that AEDPA does not apply in this case. And for good reason, because --
06-313 +++$+++ 50611 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Certainly didn't say it in the brief in opposition. And we might not well have taken the case had that point been raised in the BIL.
06-313 +++$+++ 50612 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. Finally, given the overwhelming evidence -- it supported a finding that the respondent had carried out an execution style murder for the purpose of silencing a witness. I'll preserve --
06-313 +++$+++ 50613 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I ask this question before you sit down? In the Viereck opinion, Chief Justice Stone reversed in that case. And one of the reasons was the prosecutor indulged in an appeal wholly irrelevant to any facts or issues in the case, the purpose and effect of which could only have been to arouse passion and prejudice. That's part of our Federal law. Is that law applicable in this case, do you think?
06-313 +++$+++ 50614 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not directly, Your Honor.
06-313 +++$+++ 50615 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it is either directly -- it's either yes or no.
06-313 +++$+++ 50616 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think certainly this Court can use --
06-313 +++$+++ 50617 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That rule can be ignored by State prosecutors?
06-313 +++$+++ 50618 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly not ignored, Your Honor. But in the context of fundamental fairness, as to whether or not that case applies, I would argue that it does not directly apply.
06-313 +++$+++ 50619 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You have a much more limited point, as I understand it. Your more limited point is simply that this is not clearly established law pronounced by the Supreme Court.
06-313 +++$+++ 50620 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it is --
06-313 +++$+++ 50621 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In this area of constitutional violation.
06-313 +++$+++ 50622 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, the question, I suppose, is whether that is a constitutional rule. It is established by the Supreme Court of the United States, an opinion written by Chief Justice Stone a good many years ago. But you're argument is it is not applicable to State prosecutors, as I understand it.
06-313 +++$+++ 50623 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not necessarily not applicable to State prosecutors. However, in the context of fundamental fairness, does it establish a clear -- a rule in the sense of those kinds of statements will render a trial fundamentally --
06-313 +++$+++ 50624 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why would it be applicable to State prosecutors if it is not a rule. I don't understand that. Is it applicable to a State prosecutor or not? If a state prosecutor asked you for your advice, is this opinion applicable. And you tell him yes or no.
06-313 +++$+++ 50625 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly, it is something that State prosecutors should follow in the sense of what they should say and what they should not say.
06-313 +++$+++ 50626 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But they must follow because it's the law, right?
06-313 +++$+++ 50627 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under the -- it is not the law in the sense of fundamental fairness. It is certainly an indication of what --
06-313 +++$+++ 50628 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, where did Chief Justice Stone get it from?
06-313 +++$+++ 50629 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry?
06-313 +++$+++ 50630 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where did Chief Justice Stone get it from? Just because of our supervisory power? I mean, if it's just Federal supervisory power, then I think you could tell the counsel, he doesn't have to follow it, it's due process.
06-313 +++$+++ 50631 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You can't have it both ways, counsel. I mean, you're really losing me here. Either it is our supervisory power and therefore the States don't have to follow it, or it is more than our supervisory power and the States do have to follow it. I don't know that there's any way to straddle that.
06-313 +++$+++ 50632 +++$+++ TRUE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would argue that in those cases, it is a supervisory power case. And so to that extent, it's not applicable to this particular case. I'll reserve.
06-313 +++$+++ 50633 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, counsel. Mr. Blume?
06-313 +++$+++ 50635 +++$+++ FALSE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, may it please the Court: As the former prosecutor's brief makes clear, George "Buzz" Westfall's penalty phase closing argument in Mr. Weaver's case contained a number of improper and mutually reinforcing statements which exploited the authority of his office, analogized the jury's duties to that of soldiers in war time, injected extraneous matters into the proceedings, and appealed to the jurors' passions and prejudice.
06-313 +++$+++ 50636 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I think they overstated the significance of Viereck. Isn't Viereck -- does Viereck stand, do you think, for a per se rule that a prosecutor in a closing argument may never mention the word soldier? Isn't that a much more limited -- much more limited holding? This was a prosecution during World War II of individuals for failing to register as agents of Nazi Germany, and the prosecutor said in the guilt phase -- and it wasn't a capital case obviously, in the guilt phase of closing argument, that just as our soldiers who are fighting the Japanese on the Bataan Peninsula are doing their duty for the country, you have a duty to return a guilty verdict against these individuals. Now, isn't that very different from saying that in a capital -- at the capital phase of the trial, you have a duty to consider something that's very unpleasant, and it's unpleasant in the same way that what soldiers have to do in war time is different? Isn't that very different?
06-313 +++$+++ 50637 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the historical context is different, but this was set up in this case by informing the jurors that we were involved in a war, in a war on drugs in society. And then he uses the same story, analogizing jurors' responsibilities to that of soldiers in a war. I think it is also important to put that comment in the context in which it occurred. Not only in the broader context and the repeated -- the prosecutor repeatedly leveraging the power of his office behind this, but this came right on the heels of him saying, I'm the top law enforcement officer in this county. I decide in which cases we seek the death penalty.
06-313 +++$+++ 50638 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That was objected to and the objection was sustained, correct?
06-313 +++$+++ 50639 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was objected to, and the objection was sustained. That doesn't mean that comment --
06-313 +++$+++ 50640 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And a curative instruction given.
06-313 +++$+++ 50641 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree with that. But that doesn't mean it's irrelevant for the due process totality of circumstances analysis. And then he proceeds from there directly in to the Patton analogy, and I think if you read that analogy in context, he is telling them you're soldiers in a war, you have a duty to kill, I'm like Patton, I'm telling you it's your duty to kill, go kill. If you read that logically --
06-313 +++$+++ 50642 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Which in that case, AEDPA says we look to clearly established law by our U.S. Supreme Court decisions. Which is the clearest U.S. Supreme Court decision that was violated here?
06-313 +++$+++ 50643 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The decision that was violated was the rule of Darden, Donnelly, and Romano, which is that --
06-313 +++$+++ 50644 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, pick which one do you think is the most directly applicable.
06-313 +++$+++ 50645 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think Darden established the rule. This Court applied it to the penalty phase in Romano, and thus the Darden rule that if a prosecutor's comments, the totality --
06-313 +++$+++ 50646 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's not Romano. Romano was an introduction of evidence case, right?
06-313 +++$+++ 50647 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but logically, if you have established a rule for closing arguments, you established it, you then say it is applicable to the penalty phase for the admission of evidence, it would be completely illogical to say it didn't govern penalty phase closing arguments.
06-313 +++$+++ 50648 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ My point is simply the level of generality at which the guiding principles were articulated, which helps when you're applying it, but in determining -- it is the point Judge Bowman in dissent that when you don't have a case that's close, that you have more leeway in terms of the deference to the Court, because it's not a clearly established precedent of the Supreme Court. Yes, there are the Jenner cases that establish the general principles, but the question is how clearly those were contravened before you can say it violated clearly established law.
06-313 +++$+++ 50649 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is what this Court's decisions say, Chief Justice Roberts. I think I want to make clear that we have two different positions on that. The first is that any State court decision finding this argument in its totality based on what happened and based on the weight of the evidence in this case that said that didn't render the proceedings fundamentally unfair would be an unreasonable application of Darden and Donnelly. But in addition to that, the Missouri Supreme Court in this case said the decision was unreasonable because it failed to consider significant portions of Mr. Weaver's challenge to this argument. It did the analysis under a State law abuse of discretion standard, and it refused to consider or failed to consider several components of his claim.
06-313 +++$+++ 50650 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you mean, how do you it failed to consider? I mean, is there an obligation to respond to every single point that's made?
06-313 +++$+++ 50651 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
06-313 +++$+++ 50652 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did they refuse to accept argument on those points?
06-313 +++$+++ 50653 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. But they -- on the first point, did they refuse to -- did they fail to consider a number of the challenges like the Patton analogy, that's clear. He raised that in his brief. He said this was something I'm complaining about. They did not consider it. He raised the point about --
06-313 +++$+++ 50654 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If they did consider it, you mean they did not respond to that argument in their opinion.
06-313 +++$+++ 50655 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They did not refer to it in their opinion.
06-313 +++$+++ 50656 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't know for sure that they didn't consider it. I mean, it may be argument to them. How could they not have considered it? They must have not considered it important, but that's a different --
06-313 +++$+++ 50657 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He also raised the point about this is bigger than William Weaver. And that was improper. And when the State court cited what he said, they chose to ellipses that out, and didn't even put in --
06-313 +++$+++ 50658 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, why is that improper? Is it improper at the penalty phase for a prosecutor to refer to the concept of deterrence, which by definition is bigger than the individual whose sentence is being considered?
06-313 +++$+++ 50659 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think this can properly be considered a deterrence argument. When you say over and over, this is far more important than William Weaver, this goes way beyond William Weaver, this is bigger than William Weaver, this doesn't just pertain to William Weaver, then you add that in with the number of comments about you need to give this person the death penalty --
06-313 +++$+++ 50660 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, could a prosecutor say, one of the factors you must take into account when you begin to deliberate is the deterrent purpose of the death penalty? Deterrence is one of the reasons we have the death penalty.
06-313 +++$+++ 50661 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Uh-huh.
06-313 +++$+++ 50662 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ To teach us. Can he say that?
06-313 +++$+++ 50663 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think he could say that.
06-313 +++$+++ 50664 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So then now we have the principle that you can talk about deterrence. Now it is just the way in which he talked about deterrence?
06-313 +++$+++ 50665 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, my point is I don't believe this is really a deterrence argument. Deterrence is not a substitute for moral culpability. We allow the deterrent function of the death penalty as a justification for it, but you couldn't give the death penalty to somebody who didn't deserve it under the State's scheme, in order to further deterrence.
06-313 +++$+++ 50666 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ As I recall, he didn't just say it is bigger than Weaver. He went on to discuss, you know, the drug gangs. And he says, they're not going to be affected by the threat of going to prison. They will be affected by the threat of dying. It seemed to me he tied it very, very closely into deterrence. And if you say that deterrence is okay for him to refer to, I don't know how there's anything left to your argument about his saying it's bigger than Weaver.
06-313 +++$+++ 50667 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the import of this argument is you should give the person the death penalty even if you're not sure he deserves it in order to further the deterrent function of the death penalty.
06-313 +++$+++ 50668 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, but you're -- you're saying look, he can make a general statement that we have a death penalty in part for its deterrent function, but he cannot make the argument that you ought to apply the death penalty in this case solely for deterrent reasons, i.e., reasons unanchored in the culpability of this particular defendant.
06-313 +++$+++ 50669 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. Not because, what this statement did. Especially --
06-313 +++$+++ 50670 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where? Where? Where? Where? Where does it say that? Where does it say never mind the facts? Let's, let's give this guy the death penalty as a Napoleon said, "Por encourage les autres." You know, he said it didn't matter which, whether the general was guilty of, of cowardice or not; it would help to encourage the others to execute him. Where is there anything like that argument here? I don't see it.
06-313 +++$+++ 50671 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that us the logical inference from the six or seven times he says -- in variety of -- he says this is bigger than William Weaver. The one thing you've got to understand is this is far more important than William Weaver; this is, goes way beyond William Weaver; this does not pertain just to William Weaver. He says that on six or eight occasions. And I think you could interpret that -- the logical interpretation --
06-313 +++$+++ 50672 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you let a person who is as guilty as William Weaver go, you're affecting not just William Weaver, you're affecting the whole war on drugs, you're affecting the -- what's wrong with that? I -- I fail to see any indication here that he's telling the jury never mind the facts. Never mind how -- you know -- how horrible you think the crime was. Never mind all of the instructions that the judge gives you about aggravating factors and mitigating factors. Forget all of that. Kill William Weaver because it's bigger than him. I -- I just don't -- I just don't see the argument.
06-313 +++$+++ 50673 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course, he does actually say kill him now at another point in there. But I think if you take those comments, you also look at those in the context of where he goes on and on about the consequences; you need to send a message to the drug dealers, that's a huge theme --
06-313 +++$+++ 50674 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What do you think, go on and on -- suppose he'd mentioned deterrence six times?
06-313 +++$+++ 50675 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think as long as it is a blanket sort of statement, that one purpose of the death penalty is deterrence, that would probably be consistent with this Court's decisions.
06-313 +++$+++ 50676 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right.
06-313 +++$+++ 50677 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's not what is happening here, Justice Kennedy, especially when it is tied in to that, to send a message and then he also goes on to talk about the consequences. If you don't sentence this person to death, then the animals will reign in the jungle and we can't have that in a civilized society and there's no point in having jurors, the dope peddlers prevail. You put all that together, he is telling these people as the prosecutor in this county. If you don't give this person the death penalty there will be all these adverse social consequences. And you wrap all this up; there is no conscientious prosecute who could possibly believe that these statements were proper. No. This argument is an outlier; it is beyond the bounds; it contains essentially improper comments in virtually every category that this Court --
06-313 +++$+++ 50678 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So Judge -- Judge Bowman would be an unreasonable prosecutor? He dissented; he thought these were not unreasonable on the basis of on clearly established law.
06-313 +++$+++ 50679 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I thought Judge Bowman said were it not for AEDPA this case might come out -- in his view this case might have come out differently.
06-313 +++$+++ 50680 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Judge Bowman --
06-313 +++$+++ 50681 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The standard is unreasonable in light of clearly established law.
06-313 +++$+++ 50682 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Judge Bowman did say that. But I believe the essence of his dissent was that, I think that he made the mistake which the Petitioners made in the cert petition, and he thought that there was no clearly established Federal law. A point which is essentially conceded at this point in the proceedings. I wanted to --
06-313 +++$+++ 50683 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well no, he specifically recognized there was nothing on all fours and that there these other generally applicable decisions and he thought the state courts had broad -- a broader range when there was no decision on all fours.
06-313 +++$+++ 50684 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if I'm -- I'm sorry --
06-313 +++$+++ 50685 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I'm reading at the bottom of page 820 in the petition appendix.
06-313 +++$+++ 50686 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if I'm wrong about that, I'm wrong. But even -- I don't think it is also under Justice O'Connor's opinion in williams versus Taylor, you don't have to, this doesn't works at the level of saying well, any one judge is unreasonable. The point is, it's an objective standard, not is this judge, you know, somehow out of touch here? And I think -- so -- I wanted to make one point before I forge about it, to correct one thing that Petitioner said. Mr. Weaver filed this prior to the act. It was dismissed. He did request counsel and a COA. He did appeal this in the Eighth Circuit in his first appeal. He appealed the improper dismissal of his petition. The district court initially granted the writ on Batson grounds. He appealed the fact that it should be -- his case should not be subject to the act --
06-313 +++$+++ 50687 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You have this only in a footnote in your reply brief. It wasn't raised in the BIO.
06-313 +++$+++ 50688 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was not raised in the BIO. I did not represent Mr. Weaver at that time. But I thought it was my obligation as an officer of the court to raise this at the earliest possible opportunity.
06-313 +++$+++ 50689 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can I ask you, where -- one of the passages that I thought went a little far where is he says to the jury, the one thing you've have got to into your head; this is far more important than William Weaver. This case goes far beyond William Weaver. This touches all the dope peddlers and the murderers in the world. That's the message you have to send. It just doesn't pertain to William Weaver. It pertains to all of us, the community. The message -- there are street, et cetera. Okay. Now. That struck me, as you argue this is rather extreme. Its seems to be removing the attention of the jury from William Weaver and saying you have a duty to send this man for other reasons. Now -- to execute him. But where do I find in the U.S. reports the case or statement that then says this is the kind of argument the prosecutor cannot make?
06-313 +++$+++ 50690 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. Let me -- I want to back up, and I want to take on the premise of the question. Which may be a mistake, but I think in determining, the first part of the Donnelly/Darden standard is you look at what the prosecutor argued and whether it was improper. I don't believe you have to have a United States Supreme Court case directly on point for everything the prosecutor said on that. There are decisions from this Court on a number of things he said. There are also other touchstones, for example, the standards on criminal justice which regulate what prosecutors can say. Then the way I understand this clearly established Federal law to work, is you take what the prosecutor said, you examine that in light of what happened, what defense counsel did, what the trial judge did, and the weight of the overall evidence. And if you believe that the prosecutor's arguments rendered the proceedings fundamentally unfair, then there's a violation of the due process clause. I don't think I have -- you have to show that there's some Supreme Court case directly on point going to each particular comment.
06-313 +++$+++ 50691 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You were talking --
06-313 +++$+++ 50692 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Even -- even the Supreme Court cases going to the other points, they didn't -- did any of them involve a separate penalty phase? They were all just in the guilt, guilt phase of a non-capital case, weren't they?
06-313 +++$+++ 50693 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
06-313 +++$+++ 50694 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So that, so that when the prosecutor was urging particular action, he was urging the jury to find a person guilty. He was not just urging them what penalty is better or worse. He was saying for these reasons you should find the individual guilty. That's quite different it seems to me from the situation in which guilt has already been established. The trial's done. This person is guilty, and the only thing they're arguing about is what the penalty ought to be. I'm not sure that you can analogize, you know, from the one situation to the other in determining what kind of argument is proper. Because in the former situation when the -- if the prosecutor says this is not just about this defendant, it's about the whole society, he's urging the jury to find the person guilty. I mean -- and that's crazy. You don't find the person guilty in order to stop drug trafficking. But you do impose a heavier penalty in order to do that. So I just don't, don't see the analogy from the Supreme Court cases you have.
06-313 +++$+++ 50695 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think that, I don't see any reason why a principle which this Court has repeatedly reaffirmed that a prosecutor is not supposed to leverage his opinion and the prestige of his office behind a particular outcome, would apply any less at the penalty phase of a capital trial than at the guilt phase of a capital trial.
06-313 +++$+++ 50696 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's different. Look -- it could -- could -- would defense counsel be able to argue during the guilt phase of the trial, in an ordinary trial where there's no separate phase, "ladies and gentlemen of the jury, this person has a large family that's dependent on him; he's a miserable wretch. You shouldn't find him guilt. Is there no mercy in your heart?" Would he be allowed to argue that? Of course not. Can he argue it in a guilt phase? Of course he can. And it seems to me in determining what arguments the prosecution can make you have to be guided by what arguments the defense can make. The defense can surely come in and say ladies and gentlemen of the jury, you're being called upon to kill somebody. Do you realize what a -- what a difficult, overwhelming thing that is? And then you say the prosecution can't come in and say ladies and gentlemen, sometimes if you do your duty, you have to kill. This is the law here. If you find the facts this way, that's your duty. I -- I -- I think you're, you're taking hard cases very much out of context by applying cases that relate to the guilt phase, to a very special procedure that we've set up in capital cases which is called the guilt -- uh, the penalty phase.
06-313 +++$+++ 50697 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I disagree with that, and to this extent. Can a lawyer in a capital case argue at the sentencing phase of the capital trial you should not sentence this person to death because they've had a hard life? Yes. Of course you can. And why can you do that? Because according to this Court's cases, that goes directly to the individual's moral culpability and whether they deserve the death penalty. The problem with many of the arguments which were made in this case is they are fundamentally inconsistent with the individual's moral blameworthiness and they can the jury to impose the death penalty in order to stop larger issues, to stop crime, to protect society.
06-313 +++$+++ 50698 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ To -- to send a message?
06-313 +++$+++ 50699 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To send a message. And if you don't send a message, chaos will prevail and the animals will reign in the jungle.
06-313 +++$+++ 50700 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What the defense lawyer said to the jury in his closing was if you vote for life, you are sending a message. He said if you vote for life, you are still doing your duty.
06-313 +++$+++ 50701 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
06-313 +++$+++ 50702 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How was that message -- a different message, I guess, but he can say send a message, but the prosecutor can't?
06-313 +++$+++ 50703 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I think the important -- by the time defense counsel said that, the prosecutor in his opening statement had already made the send a message statement about five times. She was trying in that one limited instance to tackle that and say well, okay, if you give him life that's a message, too.
06-313 +++$+++ 50704 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So if the prosecution had not opened the door, that would have been improper? You overrule -- the judge said counsel, you can't argue about sending a message for life?
06-313 +++$+++ 50705 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that would have been completely within the trial court's discretion.
06-313 +++$+++ 50706 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You -- you think the trial court could tell the defense counsel that the defense counsel cannot argue to the jury, ladies and gentlemen there is nothing more precious than life and that's what we're asking you to decide here and we want you to assert the values of this community that we value life? You can't say that?
06-313 +++$+++ 50707 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Maybe. But I think that what she -- but what she's saying here, though, is directly responsive. And that is also a factor which this Court has noted in its decisions.
06-313 +++$+++ 50708 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Suppose that you said explicitly, the prosecutor -- which he didn't say -- but you're arguing basically, it is a fair, sort of an implication, suppose he said there are a lot of drug dealers around, and he's one of them. And this sentencing phase isn't about just -- just isn't about William Weaver. It is about sending a message to the others. And if you execute him, even if you think he shouldn't be executed, you don't think he ever should be, but, you see, others will think that this is a message. So do it just to give a message. Even if you think he never did it. No matter what you think of him, you think he's the best person in the world. Still execute him just to send a message. Now would that violate the Constitution?
06-313 +++$+++ 50709 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Of course.
06-313 +++$+++ 50710 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes. Of course. What case in the Supreme Court would you look to to show it did?
06-313 +++$+++ 50711 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it would -- there you would easily just look to this Court's Eighth Amendment decisions which say --
06-313 +++$+++ 50712 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You don't find any one where anybody ever had an argument like that.
06-313 +++$+++ 50713 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. It wouldn't be an -- but it would be inconsistent with the fundamental principles --
06-313 +++$+++ 50714 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Ah. Ah. So you are saying we should look not just to -- if we try to look for exact, identical arguments maybe we'll get into that problem? Of having to uphold things we all know -- or is that right? Or what?
06-313 +++$+++ 50715 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think, you know, at some point, right, you can say well, you don't have a case on point because no one has said anything so outrageous. If a prosecutor went up and said look, ladies and gentlemen, the judge is going to tell you about aggravating and mitigating circumstances; forget all that baloney, go in there, you know, put all that out of your brain, and give him death. I don't think there would be any question --
06-313 +++$+++ 50716 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The question has been switched here, Counsel. The question before us is not whether it was wrong, even if you answer there's plenty of Supreme Court precedent, even though none on these particular facts, to convince me that he shouldn't have said it. That's not the question before us. The question before us is whether it violates fundamental unfairness, whether it's wrong to such an extent that it invalidates the whole prosecution and -- and sentence. That's quite a different question. I can acknowledge, yeah, the prosecutor, you know, shouldn't do it. But that doesn't lead me to the, automatically to the conclusion that the Supreme Court jurisprudence shows that this so violates fundamental unfairness that the, that the verdict has to be set aside.
06-313 +++$+++ 50717 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, let me tackle that head-on. There were a number of improper comments made in this case. Most, many of them -- a number of them were objected to and the objection was overruled. Some of them were not objected to. The only instructions they got were two curative instructions on two points and a general evidence, not arguments, instruction. So nothing was really done in the context to ameliorate the presence of these comments. And despite what the Petitioner says, this was not a strong case for death. The evidence of guilt was circumstantial and hotly contested. Even the prosecutor in his penalty phase acknowledged, look, he might be innocent, but kill him anyway. The State presented no additional evidence in aggravation of punishment. Mr. Weaver had no prior record other than a misdemeanor conviction. There was substantial mitigating evidence presented regarding his character, his good deeds, and other things he had done in the community and his adaptability to confinement. This was not a strong case for death. So you take these comments, which were -- they're trying to contrast -- this argument is worse than Newlon in most respects. It was made five weeks after he was told that this argument rendered another trial fundamentally unfair.
06-313 +++$+++ 50718 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Your recital was not a complete picture of the case. This was an assassination of a witness in a Federal drug prosecution, with how many shots to the head?
06-313 +++$+++ 50719 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe there were six.
06-313 +++$+++ 50720 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Six. And the jury determined unanimously beyond a reasonable doubt that this was the guy who did it. So you do have to look at the penalty phase in the context of those facts.
06-313 +++$+++ 50721 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree. But to say that -- and they found -- and I'm not suggesting that that's not part of the totality of the proceedings. But there's one significant point there that also I think needs to be taken into account. He was a witness, but he was also a drug dealer and involved in the drug trade and was a straw purchaser for these Shurn families. And in many instances --
06-313 +++$+++ 50722 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, serve him right? I mean, is that --
06-313 +++$+++ 50723 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not suggesting it serves him right. I'm suggesting that whether juries impose death often depends in part as well on the moral blameworthiness or how they perceived the victim. This was not like witness, an innocent witness. This was somebody who was involved in that. And that normally makes it more difficult for the prosecution to obtain a death sentence.
06-313 +++$+++ 50724 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What do you -- what should a prosecutor's closing -- penalty phase argument look like? What are the sorts of things that he should be talking about?
06-313 +++$+++ 50725 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think in general they stick to the evidence. They can argue that the nature and severity of the crime itself warrants the ultimate punishment and focus on -- the focus of the penalty phase is supposed to be on the individual's moral culpability and whether they deserve the death penalty based on what they did. This argument, most of this argument I believe, as Justice Breyer suggested, it went on for pages and there was no mention really in any substance of William Weaver and what he had done.
06-313 +++$+++ 50726 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think moral culpability is the only factor that can be mentioned? I thought you said earlier it was okay for the prosecutor to refer to deterrence.
06-313 +++$+++ 50727 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think it's the only factor, but I was responding to the question of what should a prosecutor do and in fact what most prosecutors do in most cases.
06-313 +++$+++ 50728 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can a prosecutor say that killing a witness is something that needs to be deterred and therefore it's important, it's appropriate to impose the death penalty here in order to send a message of deterrence? Is that improper?
06-313 +++$+++ 50729 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think something probably like that would be. But this -- again, this went way beyond that. The other thing that you have to look at here is that then he goes on to say, and if you don't give him death chaos will reign, society will fall apart, there's no point in having a death penalty, and the animals will reign in the jungle and you can't that have that in a civilized society.
06-313 +++$+++ 50730 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is part of moral culpability that you take moral instruction from thieves murderers on the street, as opposed to those higher standards for which society seeks to aspire? Is that moral culpability?
06-313 +++$+++ 50731 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry. I'm not sure --
06-313 +++$+++ 50732 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is it moral culpability for you to take as an example for your behavior the criminal population?
06-313 +++$+++ 50733 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I still -- I'm not trying to be thick.
06-313 +++$+++ 50734 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You're talking about moral culpability. Is it part of your moral culpability that you take your values, your instructions, your behavior from criminals, as opposed to people who uphold the law in society? Is that part of moral culpability?
06-313 +++$+++ 50735 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It might be part of the picture of what this person is like.
06-313 +++$+++ 50736 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well then, isn't it relevant what's happening on the streets, etcetera?
06-313 +++$+++ 50737 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think it's proper to say if you don't give this person death then all these other things which are bad for society are going to happen.
06-313 +++$+++ 50738 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Of course, the defense argument was not focused on Weaver either. The defense counsel said it was a vote for life, fight for it. Always fight for life, always, always. The argument by the defense wasn't -- and it's hard for me to imagine in a penalty phase how the arguments wouldn't extend beyond the particular individuals.
06-313 +++$+++ 50739 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But there's beyond and there's way beyond and there's beyond the pale. And I think if you look at all these things that were said in this case -- I have read hundreds of these arguments -- no conscientious prosecutor could have thought that this was appropriate.
06-313 +++$+++ 50740 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How do you answer the argument, fight for life, always fight for life? How do you answer that argument, except by saying: Ladies and gentlemen, sometimes, sometimes it's your duty to vote for death? How else would you answer that argument?
06-313 +++$+++ 50741 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You could answer it that, look at what this person did. You look at his crime. We have the death penalty in this State. In some cases it's appropriate. It's appropriate in this case. It's not appropriate to say: I'm the prosecutor, I decide in which cases we seek death.
06-313 +++$+++ 50742 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Blume, before your time is up, I want to ask you one other question. I'm still troubled about whether AEDPA applies. And was it argued in any court below? Was the question actually ruled on after an adversarial presentation as to whether AEDPA applies or does not apply? As I understand it, it either does or it doesn't and it doesn't matter whether it was argued. But was it discussed in any of the lower court decisions?
06-313 +++$+++ 50743 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You're talking about on the basis that he filed before the act?
06-313 +++$+++ 50744 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Two days before the act.
06-313 +++$+++ 50745 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He filed before the act. The district court dismissed and said, believing erroneously --
06-313 +++$+++ 50746 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, I mean in this proceeding.
06-313 +++$+++ 50747 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was argued in his initial habeas. It was appealed to the Eighth Circuit, because the Eighth Circuit initially granted the writ on Batson grounds. So he appealed it at that point and the Eighth Circuit said, basically with very little analysis, determined that AEDPA applied because he had to refile after the act and AEDPA applied to petitions filed after the act.
06-313 +++$+++ 50748 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And was that this habeas? Then he filed a subsequent habeas or what?
06-313 +++$+++ 50749 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was the same habeas proceeding. It was a continuation of the same. It was then remanded back to the district court. The district court granted the writ on this ground and then it went up on appeal. I don't think he would have been under any obligation to appeal it again, having sort of gotten a ruling on that in the same habeas proceeding.
06-313 +++$+++ 50750 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If the Eighth Circuit had had Lawrence in front it, it would have ruled differently? Or should it have ruled differently, in respect to Lawrence?
06-313 +++$+++ 50751 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that -- I'm sorry, I didn't mean to interrupt. I believe Lawrence makes clear that the district court made a fundamental mistake in law in dismissing his petition and should not be --
06-313 +++$+++ 50752 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Under Lawrence the Eighth Circuit would have been wrong?
06-313 +++$+++ 50753 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
06-313 +++$+++ 50754 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And if Lawrence had gone the other way, then it also -- then it would be right. In other words, whether AEDPA applies really is a function of our decision in Lawrence?
06-313 +++$+++ 50755 +++$+++ TRUE +++$+++ MR. BLUME +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Lawrence made clear what I think should have probably been clear beforehand, that you didn't have to seek cert to this Court in order to exhaust a petition, but that was the basis of the district court's ruling. Thank you.
06-313 +++$+++ 50756 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Blume. Ms. Spillars, you have four minutes remaining.
06-313 +++$+++ 50758 +++$+++ FALSE +++$+++ MS. SPILLARS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. I would like to address two points. First, it is not clearly established that deterrence arguments in closing arguments are improper, and for good reason, particularly because of the strength of this -- the evidence in this case and the fact that the Respondent had killed a Federal witness execution-style. To that extent, as I understand the Respondent's argument, the deterrence rises or falls on however the prosecutor has prefaced his deterrence argument, if he says certain words to mitigate the deterrence argument. However, trials don't operate in terms of specific words that must be pre-spoken before an argument can be valid. Secondly, in response to Justice Kennedy's question previously, I would advise that prosecutors should not use some arguments, not necessarily the deterrence argument, but not that in every instance they must not use those arguments. This Court's supervisory role in those kinds of cases allows this Court to turn should's into must's for Federal prosecutors, but that is not the case here. Second -- thirdly, the Viereck case is in a historical context which we don't have here, and the Missouri Supreme Court did consider the penalty phase arguments. At page 237 of the appendix the court specifically said: "We have reviewed the penalty phase arguments." And then at page 235, the Missouri Supreme Court distinguishes Newlon and says that they do not rise to the level of the statements made in Newlon. So to that extent the Missouri State court was not an unreasonable application of this Court's precedents and deference should afforded to that State court decision. For that reason we would ask that this case be reversed. Thank you.
06-313 +++$+++ 50759 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
06-480 +++$+++ 50764 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first this morning in case 06-480, Leegin Creative Leather Products versus PSKS Incorporated. Mr. Olson.
06-480 +++$+++ 50766 +++$+++ FALSE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The per se illegality rule for resale price maintenance is widely recognized to be outdated, misguided and anticompetitive. It should be replaced with the same rule of reason standard that applies to other forms of vertically imposed marketing restrictions. The Sherman Act bars only unreasonable restraints of trade and the court presumptively applies a rule of reason analysis to determine whether a restraint is unreasonable. Per se rules should be rare and imposed only where the court is virtually certain based upon considerable economic experience that a practice is nearly invariably anticompetitive. Vertical minimum retail -- resale price maintenance are plainly not invariably anticompetitive. In fact, a broad consensus of economists and decisions of this Court recognize that vertical restraints promote interbrand competition, which is the goal of the antitrust laws and are rarely, if ever, anticompetitive.
06-480 +++$+++ 50767 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There was an argument made, Mr. Olson, that it is somewhat difficult to distinguish vertical from horizontal in this context, that in fact, the agreement that the manufacturer made with the dealers was more successful in getting a horizontal accord among the dealers than if the dealers had attempted it themselves, in which case some might have held back.
06-480 +++$+++ 50768 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the economists who have looked at the use of resale price maintenance have said that that would very rarely, if ever, be the case. It certainly could not be the case in this industry in connection with this participant in the marketplace. There are something like 5,000 dealers that the Brighton products are sold through. There are thousands and thousands of other competing dealers, hundreds of products. What the Court has said repeatedly is that programs such as this may promote interbrand competition, perhaps --
06-480 +++$+++ 50769 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Olson, suppose just the dealers in New York, the retail dealers agreed among themselves on the price. Would that be lawful?
06-480 +++$+++ 50770 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I think that that would be covered by a horizontal prohibition, Justice Stevens.
06-480 +++$+++ 50771 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would you say that it's per se unlawful?
06-480 +++$+++ 50772 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it would be, as horizontal restraint among competing dealers, it could be a per se violation under horizontal rules if it was -- if it was -- involved the manufacturer in some way, it could be dealt with by the rule of reason.
06-480 +++$+++ 50773 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why should that be any different from the arrangement where those dealers all got together in the convention and recommended to the manufacturer that he impose a vertical restraint of precisely the same dimensions? Why --
06-480 +++$+++ 50774 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What this Court said in Sylvania, and said again in the State Oil versus Khan, is that the manufacturer has very, very little incentive to increase --
06-480 +++$+++ 50775 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but I'm asking what if he did, why should you draw a distinction?
06-480 +++$+++ 50776 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because the motivation for the arrangement, if it comes from a manufacturer -- you're suggesting a hypothetical in which all of the dealers in a particular area would get together to impose this on a manufacturer. I think it's very unrealistic that that would happen.
06-480 +++$+++ 50777 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No. They just passed a resolution asking the manufacturer to impose this vertical restraint and ways to do it. Should that be different from one in which the manufacturer does it independently?
06-480 +++$+++ 50778 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that if the manufacturer makes a decision, whether it's because dealers would like to see that happen or not, as this Court said in Business Electronic versus Sharp Electronics, there's of course relationships between the dealers and the manufacturers, that the dealers may have an interest in doing this, because they may find for the same reason that the manufacturer does that it promotes the sales of products. The record is clear in this case that this was an effective strategy for the Brighton company, the Brighton Leegin company that's manufacturing the Brighton products, to enter a very difficult and highly competitive marketplace, and it was successful.
06-480 +++$+++ 50779 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Maybe, Mr. Olson, you could give us an example where the rule of reason would find a violation in this situation?
06-480 +++$+++ 50780 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it might be a situation, the economists have written about this, say that it would be very rare, and would require retailers with a strong powerful market power to impose a situation where the manufacturer would do that to help facilitate a horizontal cartel. That certainly was not involved in this case, and that would probably be found to violate the rule of reason. In addition, it would probably be unlawful under the horizontal rules established by this Court. That was not an issue in this case. The economists say that that would very seldom happen.
06-480 +++$+++ 50781 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You say very. Which economists? I know the Chicago school tends to want rule of reason and so forth. Professor Sherer is an economist, isn't he? Worked at the FTC for a long time. A good expert in the field. He points out the drug industry after you got rid of -- after you got rid of resale price maintenance, the margins fell 40 percent. The drug stores it went down 20 percent. He says with blue jeans, alone, it saved American consumers $200 million to get rid of it. And his conclusion is, as in the uniform enforcement of resale price maintenance, the restraints can impose massive anti-consumer benefits. Massive.
06-480 +++$+++ 50782 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
06-480 +++$+++ 50783 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What that sounds like is that if at least he, who is an economist, thinks if you get rid of Dr. Miles, every American will pay far more for the goods that they buy at retail. Now that's one economist, of course. There are other whose think differently. So how should we decide this?
06-480 +++$+++ 50784 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
06-480 +++$+++ 50785 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Should we overturn Dr. Miles and run that risk?
06-480 +++$+++ 50786 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In, in the vast majority of the economist whose have looked at this have come out to the opposite conclusion, Justice Breyer. Secondly --
06-480 +++$+++ 50787 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We're supposed to count economists?
06-480 +++$+++ 50788 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. No. I think that --
06-480 +++$+++ 50789 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is that how we decide it? (Laughter.)
06-480 +++$+++ 50790 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But what this Court -- what this Court has repeatedly said, that under circumstances such as this where there's a consensus among leading respected economists, that is one factor. There's another factor --
06-480 +++$+++ 50791 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I haven't seen a consensus. A consensus? Isn't, doesn't Sherer and all these people, doesn't that point of view count, too?
06-480 +++$+++ 50792 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This is one factor that the Court should consider and the Court has considered in the past when dealing with something that the Court itself has said, is an anachronistic and chronologically schizoid rule, to have a rule of reason for certain vertical restraints and a fixed, rigid, per se rule with respect to other vertical restraints. The Court -- the Court itself has made those pronouncements. The enforcing agencies have changed their view with respect -- and they are here today, the Antitrust Division and the Federal Trade Commission, all of whom have announced that they believe that it is very rare for a rule such as this, for an arrangement such as this to be anticompetitive.
06-480 +++$+++ 50793 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it was not so long ago that the Department of Justice took a different view. And of all of the vertical restraints, this is the only one where Congress has been a player. I mean, Congress allowed the fair trade laws to operate. And then it withdrew that. There's no other restraint where they are has been congressional action, where the argument could be made, well, Congress is well aware of this, the Court should allow them to make the change, if they so will.
06-480 +++$+++ 50794 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Essentially, the same argument was made in the Sylvania -- at the time of the Sylvania case. The same argument was made just a term or two go in connection with the Illinois Tool case that dealt with tying arrangements. The same argument was made in State Oil versus Khan. This Court has construed the antitrust laws as an expression by Congress that the courts should be aware of the dynamic potential in the marketplace --
06-480 +++$+++ 50795 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But in those cases you didn't have the counterpart to Miller-Tydings and McGuire. That's what makes this -- this one different in terms of congressional intention.
06-480 +++$+++ 50796 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The repeal of those statutes, Justice Ginsburg, repealed per se legality rules. It was not a congressional expression against the rule of reason --
06-480 +++$+++ 50797 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but there was in the patent case, though, Mr. Olson. We relied on the fact that the patent law changed.
06-480 +++$+++ 50798 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, you did.
06-480 +++$+++ 50799 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes.
06-480 +++$+++ 50800 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that was a, that was one factor, however, Justice Stevens. I think, as I read that opinion, the Court was also concerned with the fact that the, the per se rule which -- and the Court said the statement thing just a few weeks ago in the Weyerhaeuser case -- to the extent there's practices that can be procompetitive, the Court should not set a low threshold of illegality, especially low per se illegality threshold. There were -- there have been -- it is worth emphasizing that the Court has repeatedly said we don't want per se rules when we don't have a substantial body of economic experience that shows us that this practice --
06-480 +++$+++ 50801 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about -- what about the reliance interest, though? I mean, hasn't a whole industry of discount stores developed in reliance on the Dr. Miles rule? And don't we need to be concerned about the disruption to that established practice?
06-480 +++$+++ 50802 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's really no evidence that the marketplace as it exists today is a result of the Dr. Miles rule of 1911, Chief Justice --
06-480 +++$+++ 50803 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't there evidence that the, basically that the rise of the Wal-Marts and the Targets is correlated with the demise of fair trade? So -- that there's that correlation.
06-480 +++$+++ 50804 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Actually I looked into that, Justice Souter. And me, my limited historical research is that the -- those discounters were coming on strong before 1975 which is when the, the consumer price, whatever it was, act was passed in response to that. There are -- the evidence basically shows that -- and this Court has said -- that it's interbrand competition that ultimately produces lower prices.
06-480 +++$+++ 50805 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I don't know. We have -- you talked about -- just for fun I got out of the library a book by Professor B. S. Yamey, called resale price maintenance where he has five economists -- now maybe you're not going to count them as economists. Now I didn't find in that book a single argument that isn't also in your briefs, nor did I find in your brief as single argument that isn't in the book. There's one interesting thing about the book. It was written in 1966. So I guess my question is what's changed? Now I know two things have changed. One is there's evidence in Canada, Britain, and in the states that were under Miller-Tydings, that when you got rid of resale price maintenance, prices went down. That's changed. And the second thing that's changed is there's far more concentration, I gather, today in the retail side of the market than there are used to be, a factor which makes resale price maintenance dangerous because it's more likely to take place at the request of the dealers. Now, I see those two changes. My question to you is looking at Yamey's book which is called Resale Price Maintenance, so you might have found even it even on Google, and -- what's changed? What's new?
06-480 +++$+++ 50806 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, a number of things have changed. The -- the number of respected individuals, notwithstanding that book, who have looked at it and have focused on the marketplace, have said that because it allows -- it increases the possibility of interbrand competition, it can provide incentives for dealers to provide service, differences in the products. And other things that have happened since then, are this Court's decision in the Sylvania case, which -- which involved an elaborate analysis of vertical restrictions and found that they are largely procompetitive and undermine the ruling -- the reason for a per se rule. This Court's decision in State Oil versus Khan, and the other cases that this Court is very well aware of where per se rules have systematically been dismantled because they are artificial themselves in the marketplace. This --
06-480 +++$+++ 50807 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Olson, does brand competition generally help retailers, or is this a question that can't be answered?
06-480 +++$+++ 50808 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Did you say inter --
06-480 +++$+++ 50809 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Interbrand, interbrand competition? Do retailers like interbrand competition?
06-480 +++$+++ 50810 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I don't know that -- I don't know whether people like competition. But the antitrust laws like competition and this Court likes competition. And this Court has said that interbrand --
06-480 +++$+++ 50811 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but we're talking about inter -- we're talking about retailers. It, it seems to me at the outset of the argument, you -- you acknowledged, and I think it is the general rule -- that if the retailers themselves have this resale price maintenance, it is invalid. Well, if the manufacturer does this just for the convenience of the retailers, and that's -- many of the examples in your brief, it is for the convenience and for the benefit of the retailers, then why shouldn't there be a per se rule? Why should we allow the manufacturer to do something we that wouldn't allow the retailers to do, if it's for the retailers?
06-480 +++$+++ 50812 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the manufacturer is very unlikely to do this for the convenience of the retailers, to -- because it's in the interest of the manufacturer to have the retail price as low as possible so that the manufacturer will sell as many of the manufacturers' products as possible.
06-480 +++$+++ 50813 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If -- if, if indeed that's, that's what he's aiming at, low price. Is it the object of the -- is the sole object of the Sherman Act to produce low prices?
06-480 +++$+++ 50814 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
06-480 +++$+++ 50815 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought it was consumer welfare.
06-480 +++$+++ 50816 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, yes, it is.
06-480 +++$+++ 50817 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I thought some consumers would prefer more service at a higher price.
06-480 +++$+++ 50818 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Precisely.
06-480 +++$+++ 50819 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So the mere fact that it would increase prices doesn't prove anything. It doesn't prove that it's serving consumer welfare. If, in fact, it's giving the consumer a choice of more service at a somewhat higher price, that would enhance consumer welfare, so long as there are competitive products at a lower price, wouldn't it?
06-480 +++$+++ 50820 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's -- that's absolutely correct.
06-480 +++$+++ 50821 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So I don't know why, why we should have to focus our entire attention on whether it's going to -- going to produce higher prices or not. The market out there has different goods at different prices which have different qualities that attract different consumers.
06-480 +++$+++ 50822 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I agree completely. I would like to reserve the balance of my time for rebuttal, but let me say that that's what this Court has said over and over again. If you -- the purpose of the antitrust laws is not price, but it's competition, because competition between competing manufacturers give the consumers more choice. Some people may want the cheapest product. Some people may want the product that's more available to them. They may wish the return policy or the warranty policy or the repair policy that the dealer provides. And in this marketplace particularly, that system of providing competition is consistent with the antitrust laws and has produced success in the marketplace.
06-480 +++$+++ 50823 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Olson, before you sit down, there's just one thing that wasn't covered in your argument or in the brief, but the complaint alleged in this case that Leegin allowed certain favored dealers to discount; this plaintiff, but others were allowed to discount. And if that were true, as a matter of fact, then that would be a -- a plain violation of antitrust law, wouldn't it?
06-480 +++$+++ 50824 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This -- but the case was never litigated on that basis. It wasn't considered on that basis in the Court of Appeals. It came up sort of as a late thought in the opposition to the petition for certiorari. But that is not this case. The case was litigated on the per se rule of Dr. Miles.
06-480 +++$+++ 50825 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Olson.
06-480 +++$+++ 50826 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- in the complaint,.
06-480 +++$+++ 50827 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Olson. Mr. Hungar?
06-480 +++$+++ 50829 +++$+++ FALSE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you Mr. Chief Justice, and may it please the Court. The same considerations that led this Court in Sylvania and State Oil to reject outmoded per se rules compel that same result here. The Dr. Miles rule conflicts with this Court's modern antitrust jurisprudence in three fatal --
06-480 +++$+++ 50830 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Maybe I'll put my question, which is really just one for this. I understand perfectly that the per se rule is a result of balancing differ things. Of course, resale price maintenance does raise prices, and it is very often anticompetitive. Of course, sometimes, there are good reasons for it that might help consumers. Now, in addition, you need clear rules. Now those three sets of things require a balance. And we have a hundred years of history where this Court and Congress and others have balanced those three sets of considerations, and they've come out one way. Now, the Department of Justice wants to rebalance them and come out the other way. There are good arguments on both sides. Why should we overrule a case that's 96 years old, in the absence of any -- any -- congressional indication that that's a good idea, when it's simply a question in a difficult area of people reaching a slightly different weight on some these three sets of things?
06-480 +++$+++ 50831 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Several reasons, Your Honor. It's not -- it's not a close question whether this Court under its modern antitrust jurisprudence as an initial matter would impose a per se rule in this context. There is economic -- there is consensus among the respected economists --
06-480 +++$+++ 50832 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I would think it is quite a close question.
06-480 +++$+++ 50833 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think you, Your Honor. Given that --
06-480 +++$+++ 50834 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All right, even so. Go ahead.
06-480 +++$+++ 50835 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Given that this Court's test, the question this Court's modern cases ask, in distinguishing between the rule of reason and the per se rule, is whether the challenged conduct is always or almost always anticompetitive. That's what the Court has said.
06-480 +++$+++ 50836 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Price fixing, horizontal, I guess, or territorial divisions, we should overturn those too.
06-480 +++$+++ 50837 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly not, Your Honor. Because that, that is almost always anticompetitive in our experience and in the experience of the courts. But the same is not true in the resale price maintenance context. Dr. Miles has foreclosed the courts from conducting the kind of analysis that would actually look into this question. But the empirical data that are available would suggest that anticompetitive explanations for resale price maintenance do not have very much explanatory power. When you actually look at the cases that have been litigated, they involve manufacturers without market power, unconcentrated markets, no evidence in the vast majority of those cases of any cartelization going on. So the anticompetitive explanations, while certainly valid in some cases, do not appear to explain most of the retail price maintenance that has been litigated. It's true that retail price maintenance can but does not always result in price increases, but, as Justice Scalia pointed out, price is not the only thing that consumers care about. And there is widespread consensus in the economic literature and in this Court's recent cases that price-based vertical restraints, just like non-price based vertical restraints, while they generally reduce intrabrand competition, generally enhance interbrand competition. In Monsanto and Business Electronics, this Court made clear that price vertical restraints, like minimum resale price maintenance, frequently, in fact usually, have the same or similar effects to the non-price vertical restraints to which this Court now applies rule of reason analysis. So the reason in --
06-480 +++$+++ 50838 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Wouldn't your argument also apply to a conspiracy among the New York dealers in this product just to fix prices? Because there's plenty of interbrand competition, I think. I don't think you can say it's absolutely clear that that would always be anti-competitive because they would also agree to provide additional services.
06-480 +++$+++ 50839 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, because horizontal -- the important thing to keep in mind is that the incentive of the manufacturer when the manufacturer --
06-480 +++$+++ 50840 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I'm talking about a case in which it's the dealers who want to agree to provide extra services at higher prices as their method of better serving the public and they all agree that they have to be conscious about the competition from other brands. Why can we be absolutely certain that's always going to be harmful to the consumer?
06-480 +++$+++ 50841 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the reason why we know that is always or almost always harmful is that the incentive at a horizontal level of a retailer cartel, just like the incentives of the participants in a manufacturing cartel --
06-480 +++$+++ 50842 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They might be precisely the statement as the manufacturers: We think we'll make more, all make more money if we concentrate on service rather than price.
06-480 +++$+++ 50843 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor, because the manufacturer's incentive is not to increase the profits of the retailers, but the retailers when they get together obviously have a very different incentive, which is not to benefit the manufacturer.
06-480 +++$+++ 50844 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What you say is right. What you say there is right. I feel I'm back in 1966. The argument against that is, we don't know which way the push comes. The large retailers, Home Depot, whatever they are, huge retailers, they want -- or maybe it isn't the discounters, it's some other once. We don't know which way. You're throwing it into court. You're throwing it before 12 people who may or may not work this thing out. So the argument against what you're saying is not logic. It's empirical and administrative.
06-480 +++$+++ 50845 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor --
06-480 +++$+++ 50846 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's what it was. That's what it is now, I guess.
06-480 +++$+++ 50847 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, in State Oil the same argument was made. The argument was made that, while we don't have compelling empirical evidence that Albrecht results in harm to the economy, we don't have compelling empirical evidence that resale price maintenance, maximum resale price maintenance, is generally pro-competitive, and in the absence of such empirical evidence there's no basis for overturning precedent. This Court unanimously --
06-480 +++$+++ 50848 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We do have empirical evidence, though, don't we, that the decision of this case is going to be very significant in the sort of battle between Wal-Mart and the Main Street stores; and why should this Court in effect take a shot in the dark at resolving that, as distinct from leaving it to Congress, which is in a position to know more about where the shot is going to land than we are?
06-480 +++$+++ 50849 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This Court -- I'm sorry. There's no empirical evidence that I'm aware of about what impact eliminating Dr. Miles would have on the Wal-Marts of the world.
06-480 +++$+++ 50850 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's my point. But it seems to me there is a body of some empirical evidence that the success of the Wal-Marts and the Targets and the Home Depots was a success which was correlated with the elimination of price maintenance by the States.
06-480 +++$+++ 50851 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so, Your Honor. In fact, as Mr. Olson pointed out, the K-Marts of the world began during the fair trade era.
06-480 +++$+++ 50852 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ They began, but they have flourished in the post-fair trade era.
06-480 +++$+++ 50853 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor, but I think considerations likes the opening up of international trade and the development of markets like China to supply low-cost goods have a lot more to do with the success of the Wal-Marts of the world than a rule like Dr. Miles. Remember, it's perfectly legal under current law for manufacturers to impose the same sort of constraints as long as they do it by fiat and unilateral enforcement rather than by agreement. So the suggestion that somehow this is going to revolutionize the economy if Dr. Miles is overruled is simply unsupportable.
06-480 +++$+++ 50854 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well then, what's the great benefit then in changing the rule if it's perfectly legal to achieve the same result already?
06-480 +++$+++ 50855 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As the Ping amicus brief, the Ping Golf Club Manufacturer amicus brief, indicates it's extremely expensive and inefficient to follow the Colgate regime, that for those manufacturers for whom resale price maintenance would be in effect a strategy like Leegin it's more efficient to do it in many circumstances by agreement, rather than the disruption that is entailed when you terminate a dealer without further discussion for discounting one item in order to keep your policy in place.
06-480 +++$+++ 50856 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But doesn't that answer your argument that there isn't reason to believe that there is going to be disruption if Dr. Miles goes, because now it's going to be easy?
06-480 +++$+++ 50857 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, in 1945 during the height of the fair trade era the FTC did a study which concluded only about 5 percent of the economy was affected by fair trade. And the fair trade regime, remember, is a different and more extreme regime. There it was per se legality, not rule of reason. So it's just -- there's just no basis for these assertions that somehow the economy is going to be massively changed. But it is also perfectly clear and undisputed that there are circumstances in which it is more efficient for a manufacturer to adopt resale price maintenance. It will enhance its ability to compete and it will provide consumers more of what they want, and that is a good thing and the antitrust laws should not automatically foreclose that merely because in a small percentage of cases it is conceivable that there can be anticompetitive effects.
06-480 +++$+++ 50858 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't it fair to say that there is reason to believe that there may be a massive reorientation in the retail economy if Dr. Miles goes? And that gets to my problem, why should we be the people to make a guess as opposed to the Congress as the institution to make the guess?
06-480 +++$+++ 50859 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not aware of any reason to believe that, Your Honor, based on the historical record and based on the modern realities. The Wal-Marts of the world have succeeded because of their discounting strategy. That's not going to change, and manufacturers have an incentive to have their goods sold through those stores and that's not going to change either in the vast majority of cases. And With respect --
06-480 +++$+++ 50860 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If the rule of reason is the one that applies, I gathered, perhaps incorrectly, from Mr. Olson's remarks that this would be -- this case would be thrown out on summary judgment, it would never get to trial. How do you think the rule of reason would operate if it were the rubric under which this case were to be decided?
06-480 +++$+++ 50861 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think it would operate as it does usually, which is the plaintiff would be required to establish an anticompetitive effect resulting from the challenged conduct, and once that burden is overcome the defendant would be required to come up with some legitimate business justification, some pro-competitive results that outweigh that. And only if they could do that would they succeed.
06-480 +++$+++ 50862 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, that's the formula, but I take it from what you said and Mr. Olson said that the plaintiff could never get across the first threshold?
06-480 +++$+++ 50863 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't agree with that, Your Honor. In cases where resale price maintenance is being used to facilitate cartelization, either at the manufacturer or the retail level, the plaintiff could prevail. Also in, for example, in an oligopolistic market.
06-480 +++$+++ 50864 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But in this case, this case has none of those features.
06-480 +++$+++ 50865 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, right.
06-480 +++$+++ 50866 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Leegin loses under the rule of reason, right?
06-480 +++$+++ 50867 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't know that. It seems likely to assume that, though, and that's not a bad thing. Leegin is obviously not dominant in the market. It's obviously not going to succeed unless what it is offering at a higher price is what consumers want, and that is a good thing under the antitrust laws.
06-480 +++$+++ 50868 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Hungar.
06-480 +++$+++ 50869 +++$+++ TRUE +++$+++ MR. HUNGAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you.
06-480 +++$+++ 50870 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Coykendall.
06-480 +++$+++ 50872 +++$+++ FALSE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: As recently as last month, this Court restated a guiding principle of antitrust jurisprudence: Discouraging price cuts and depriving consumers of low prices is bad antitrust policy. RPM prohibits price --
06-480 +++$+++ 50873 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is that right? I mean, You really think that antitrust policy means when -- any arrangement that produce a higher price is bad?
06-480 +++$+++ 50874 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we aren't talking about any arrangement --
06-480 +++$+++ 50875 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, a lot of consumers want, you know, extended warranties. They want show rooms where they can go and look at things. All of which costs more money. And where you can not have resale price maintenance the customers -- or you have the free rider problem. The customers shop at the place that has the big show room, likes at all the product there, and goes and buys it from somebody else who has not incurred that expense. Now, I just don't think that all the customers want is cheap. I think they want other things besides cheap. I think they want service. I think they want selection. I think they want the ability to view goods and so forth. Why do you discount all of those things?
06-480 +++$+++ 50876 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't discount all those things. All those things are available under our current regime where we have a per se prohibition against resale price maintenance.
06-480 +++$+++ 50877 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, they aren't available. This company thought that it could provide higher service if it could assure its retailers that they would not be undercut by people who are not providing that kind of service.
06-480 +++$+++ 50878 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And there's no question that even the plaintiff in this case was providing that service. He was providing it more efficiently and he just wanted to pass those efficiencies on.
06-480 +++$+++ 50879 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't, I don't know that there's no question about that. There's certainly no question that this company was successful in breaking into a difficult market with its strategy of assuring its retailers a cushion so that they could provide the service.
06-480 +++$+++ 50880 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The record shows that with this specific company, most of the growth of its sales occurred before it established a resale price maintenance policy. So there are no demonstrated benefits from this company of imposing and enforcing a resale price maintenance policy.
06-480 +++$+++ 50881 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is your main objection to -- I mean, it's hard to propose a rule of reason. Why, why can't the rule of reason work to promote the objectives you've just articulated?
06-480 +++$+++ 50882 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, as a practical matter for someone in my position, or plaintiff's position, it's impossible for a small dealer to muster the resources in order to put forth -- CHIEF JUSTICE
06-480 +++$+++ 50883 +++$+++ TRUE +++$+++ JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ For a small dealer. But as we've already heard, the dealers who engage in the discount policy are prices like Target and Wal-Mart. Those aren't small dealers. Those are behemoths in the retailing industry.
06-480 +++$+++ 50884 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would suggest that those are not the people that really are being protected by this particular per se prohibition. It is the small mom and pop operation like my client that wants to innovate and expand and pass on efficiencies and compete with the big discounters who might have power of their own in order to secure discounts.
06-480 +++$+++ 50885 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you don't agree with the argument that we've heard this morning that the transformation of American retailing since the 1970s and the rise of the large-scale low-price retailers has anything to do with the end of the fair trade laws and that overruling Dr. Miles would reverse that?
06-480 +++$+++ 50886 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I absolutely agree with that. But it's resale price maintenance that enables these initiators, these small companies, these small operations, to grow and innovate, achieve the efficiencies, and pass those on, attract customers by reducing prices. And all that is stopped by imposition of a resale price --
06-480 +++$+++ 50887 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there anything to suggest that the large-scale low-price retailers who were supposedly dependent on Dr. Miles are -- support its retention? Have they filed amicus briefs here or otherwise suggested that this is essential to their continuing operation?
06-480 +++$+++ 50888 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, the large-scale dominant players in the retail industry have their own market power. They don't need the protection of the per se rule in order to enforce them. It's the next generation that this rule really aims to protect.
06-480 +++$+++ 50889 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't understand that. I mean, if it was really the case that they were going to be losing, losing profits, I think they would have been here. I mean, we talk about the Wal-Marts and the Targets. They're not here on amicus briefs because they're -- what they're selling is cheap. They are selling price, and people who want low price and for whom that's of value above all other things are going to continue to go to those stores. So they're not going to be harmed by the fact that some manufacturers want to provide not just the low price -- of course, they'll try to keep the price as low as possible -- but service. I just don't see what, what harm can possibly come, so long as there's no market dominance, from allowing some people to make their money on service and -- rather than cheap price.
06-480 +++$+++ 50890 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again I would suggest that under this current system the way it is we have both the full service providers of complete service that offer goods at a certain price and we have discounters selling those same goods. There is currently a mix of service and price that better serves the economy than just having one cookie cutter -- a one size fits all approach that you would have with resale price maintenance.
06-480 +++$+++ 50891 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I thought the per se rule was the cookie cutter approach.
06-480 +++$+++ 50892 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, in terms of prohibiting price or in terms of, yes, prohibiting price fixing, that's true. But it permits stores to have full price and full service and charge high prices for that service, and it permits discounters to reduce price, reduce service and cater to those customers who want the goods with lower service.
06-480 +++$+++ 50893 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The Internet -- is it -- you would have said four years ago, or I think we are in this argument, you would have said that it's the large discounters, the growing discounters, the Walgreen's of the world who want to get rid of retail price maintenance, it's there to help the mom and pops. Okay. They're in now, they're big, and they may want to maintain resale prices because they may want to extract the other profit, while the Internet little company comes in and says I can get it to you cheaper. Now I can imagine circumstances like you say. I can imagine they're not like you say. I don't know. And so what should I do if I really don't know?
06-480 +++$+++ 50894 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there is no doubt that resale price maintenance raises prices to consumers. The only economic doubt is whether there are any redeeming effects of those prices; and that's where the economic dispute of this is.
06-480 +++$+++ 50895 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I thought the Ping brief that was referenced earlier made a point that it made, the prices may be -- resale price -- the current Dr. Miles rule may result in increased prices because of the inefficiencies for those retailers, or of those manufacturers who want to establish a regime where something other than price is important, and they have to do that unilaterally, which increases inefficiencies.
06-480 +++$+++ 50896 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I would suggest that, first of all, eliminating the per se rule would not decrease the inefficiencies of the Colgate doctrine. If they want to impose resale price maintenance in order to avoid even a rule of reasoned approach, they would have to go --
06-480 +++$+++ 50897 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Even with the tremendous anomaly that the employer -- that the -- the manufacturer cannot do this by agreement, but he can do it just unilaterally and terminate any dealers that won't go along? Those two are substitute of each other. Colgate seems to say you can achieve the same end but we're not going to let you do it by agreement, you have to do it on your own, and then you have to do the draconian thing of terminating the dealer.
06-480 +++$+++ 50898 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that anomaly really lies at the heart of the Sherman Antitrust Act which is aimed at contracts, combinations and conspiracies. Unilateral conduct isn't reached by that, it's the price of being in a fair country. People can deal in ways that they want to with this particular issue. But again, eliminating the per se rule will not help Ping out if they want to maintain their retail price maintenance as legal, as unilateral. They'll still have to go through these same machinations.
06-480 +++$+++ 50899 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why is that? Why can't -- eliminating the rule, I thought the whole point was they would just put in their contracts, you have to sell it at this price, and they could enforce the contracts, rather than having to have these machinations of making sure they don't do anything that looks like an agreement with their retailers.
06-480 +++$+++ 50900 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again, then they would be subject to a rule of reason analysis and the uncertainties occasioned with that as to whether this contract is lawful. If they want to avoid that, then of course, they would have to stick with the Colgate doctrine. Your Honor, this particular case, we have clear evidence that RPM was used to facilitate a horizontal retailer cartel. We have evidence in the briefs that Leegin would gather its dealers in a dealer meeting, discuss the policy, agree to changes, and reach a consensus, and then enforce that policy against everyone. One of the evils of resale price maintenance is specifically this: It does facilitate the formation of cartels.
06-480 +++$+++ 50901 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yeah, but the conspiracy that it facilitated was just with intrabrand competition. There wasn't conspiracy that affected interbrand competition.
06-480 +++$+++ 50902 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Retail --
06-480 +++$+++ 50903 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So I'm not sure that economically it makes any difference whether the dealers are the one who decide to do it or the manufacturer was, or they all did it at the same time.
06-480 +++$+++ 50904 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Horizontal conspiracies, even among a single brand, has always been a per se violation of the antitrust law. You can look back at the --
06-480 +++$+++ 50905 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, but if we say the rule or reason should apply to all cases that just affect intrabrand competition, I'm not sure why we should keep this outmoded rule about horizontal conspiracies that only affect intrabrand competition.
06-480 +++$+++ 50906 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There you're striking really at the heart of the -- the heart of the Sherman Act, et al., holding that horizontal conspiracies, which nobody believes promote competition, could be justified under the same thinking.
06-480 +++$+++ 50907 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but it's a totally -- I cannot imagine why a horizontal conspiracy among dealers could ever produce consumer welfare. It will be a horizontal conspiracy to get more money out of the consumer; but whereas the manufacturer who wants to impose resale price maintenance, his interest isn't to give the retailer as much -- more money than the retailer is now making. He's going to try to keep their margin just as low as it ever was, so that he can sell as many of his products as possible consistent with his desire to sell his product by attaching to it more service, better warranty, more showrooms, whatever. You know, horizontal conspiracy, the incentives are entirely different. When you're dealing with a manufacturer, it seems to me his incentive is still to keep the price as low as possible consistent with the additional good that he wants to give consumers to attract those consumers to his product.
06-480 +++$+++ 50908 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In this particular case there is a complete alignment of incentives, because the manufacturer was also a retailer competing in this market. He has the incentive to increase retailer profits.
06-480 +++$+++ 50909 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, if that's the case and if that makes a difference, the rule of reason would allow you to make that argument. But you -- but you want to say it's bad across the board for everybody. If indeed there's something peculiar about this case, the rule of reason would allow you to argue that.
06-480 +++$+++ 50910 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, we would suggest that the horizontal conspiracy between Leegin as a retailer and the other retailers offering his products is more than just a rule of reason approach. That would be per se illegal under this Court's precedents. Retail price maintenance also has the problem we discussed earlier of perpetuating incumbent forms of distribution at the expense of the innovative and more efficient distribution means. Retailers, in retail competition matters, retailers should be entitled to innovate, pass efficiencies along to customers in the form of lower prices, attract new customers, and grow in that manner.
06-480 +++$+++ 50911 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Coykendall, the -- on the question -- you alleged in the complaint that there was some discounting allowed by, how do you pronounce it, Leegin?
06-480 +++$+++ 50912 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Leegin.
06-480 +++$+++ 50913 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Leegin. And Mr. Olson says that that wasn't pursued at trial; is that correct?
06-480 +++$+++ 50914 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That particular aspect was referred to; it wasn't pursued as a separate part of this. Prior to trial, the judge did rule that the Dr. Miles line of cases applied and the conduct would be judged under the per se rule. So certain aspects with respect to the horizontal conspiracy and the differences in discounts -- I mean, developed that much.
06-480 +++$+++ 50915 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Suppose you were to lose, you would still have that claim, I take it?
06-480 +++$+++ 50916 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, yes. We would suggest the record is sufficient that on remand the instruction given the jury as to the standard by which their conduct could be judged could be sustained as a per se violation under the rules related to horizontal conspiracies as well. And again, I would suggest that perhaps if the Court doesn't reach that, it should remand to the Fifth Circuit for them to consider whether that is a possibility. Resale price maintenance can distort consumer choice. The retailers -- so the person comes into the store -- the retailers can exercise pressure to influence the selection of higher margin products over ones that may better fit the consumer needs. That is an evil of resale price maintenance, whether or not it does promote efficiencies. And if resale price maintenance does act as it is theorized, to increase retailer services, some consumers will be worse off, they'll be paying for services they don't want. There are alternatives to RPM.
06-480 +++$+++ 50917 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't suppose there's any -- I don't suppose there's any way to protect against the fallout to the consumer, is there? I mean if indeed, if indeed a store presses on a consumer a product that's more expensive than what he needs or -- and what he wants, is this a real argument against this, that there's some stupid consumers whose can be conned? I mean, whatever rule we adopt, that's going to be the situation.
06-480 +++$+++ 50918 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, if -- what you're doing is you're building in this high margin that gives the retailer an incentive to do that. If there is no resale price maintenance so that margin isn't guaranteed, the incentive disappears. What is clear is that retail -- resale price maintenance is a blunt instrument to achieve any economies.
06-480 +++$+++ 50919 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're assuming that the -- that the retailer has a higher margin on the resale price good. Why do you assume that?
06-480 +++$+++ 50920 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's the only incentive, the only reason for imposing resale prices
06-480 +++$+++ 50921 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ He's only going to be given the thing if he does the kind of additional service that the manufacturer wants. That's the whole purpose of it. And the manufacturer is going to try to keep his margin just as low as he can consistent with the -- you know -- consistent with selling as many products as he can.
06-480 +++$+++ 50922 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there are more efficient ways than RPM to achieve any benefits of efficiency, such as contracts with the retailers to provide those additional demand creating services. He could pay the retailers to provide those services. He could provide those services directly, I would suggest.
06-480 +++$+++ 50923 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why would you argue that those are more efficient than resale price maintenance?
06-480 +++$+++ 50924 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The resale price maintenance amounts to nothing more than throwing money at the problem. You're guaranteeing a margin and you're hoping that it's going to be used somehow for the consumer's benefit, and you've got no guarantee that any dealer is going to use the margin that they're guaranteed in any way to service the consumers. And I would suggest that in geographically isolated areas --
06-480 +++$+++ 50925 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you can add the contractual provisions you were talking about to a contract that has a minimum resale price. The minimum resale price is to take away the incentive from the retailer not to carry through on the non-price aspects.
06-480 +++$+++ 50926 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you have a contract requiring those services, you don't need the minimum resale price. That's just completely unnecessary. And that would prohibit the efficient dealer from passing on those efficiencies to its consumers.
06-480 +++$+++ 50927 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Does that presume a contract in which the retailer has a separate charge for the service?
06-480 +++$+++ 50928 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could be. It may not.
06-480 +++$+++ 50929 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If not, I don't see how that would work under your rule.
06-480 +++$+++ 50930 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, under -- the idea is the manufacturer chooses to deal with only those dealers that offer this particular service. They sign a contract to provide that service. If they don't want to provide that service, they don't sign the contract, these don't get the goods. It's as simple as that. If the question is providing a larger margin to the dealer, the most efficient way is for the manufacturer simply to lower their wholesale price, and the margin the dealer receives is higher. Again, if there are other efficiencies, they might be achieved by exclusive territories as permitted by Sylvania or by the Colgate doctrine. I would suggest the experience of the 30 years following the elimination of the fair trade laws have shown the wisdom of the Dr. Miles decision which places faith in the free market system. This Court should continue to honor its precedents and respect the will of Congress by adhering to the Dr. Miles rule.
06-480 +++$+++ 50931 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your reference to the will of Congress, they haven't enacted legislation that supports the result you seek.
06-480 +++$+++ 50932 +++$+++ TRUE +++$+++ MR. COYKENDALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, as this Court observed in Sylvania, Congress by repealing the Miller-Tydings McGuire Act did indicate its support for the per se rule. I believe the Court should adhere to that holding as well.
06-480 +++$+++ 50933 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel. Ms. Underwood?
06-480 +++$+++ 50935 +++$+++ FALSE +++$+++ MS. UNDERWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: When a manufacturer agrees with its retailers to fix a minimum resale price, the whole point of the agreement is to prevent price competition among retailers, to prevent discounts. For almost 100 years the Court has interpreted Section 1 of the Sherman Act to prohibit such price fixing agreements. Any change in that fundamental understanding of the statute should be made by Congress and not by this Court. The per se rule against resale price maintenance is different in at least three ways from other antitrust rules that this Court has overturned. First, unlike the other rules, it alone has been settled law for a century, reaffirmed over and over again by this Court.
06-480 +++$+++ 50936 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it's also been settled law for 90 years under the Colgate doctrine that manufacturers can achieve the same results, albeit more inefficiently. Doesn't it make sense to allow them to adopt the most efficient means to an end that is already completely legal?
06-480 +++$+++ 50937 +++$+++ TRUE +++$+++ MS. UNDERWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. That tension that you -- that supposed anomaly that you described is simply a result of the fact that the antitrust rule -- law does not prohibit all anticompetitive behavior. It prohibits agreements that are anti -- that restrain competition. And so it will often be the case that it is possible for somebody unilaterally to do something that has the same effect as an agreement, or approximately the same effect, as the antitrust law simply draws that line because of a different value, a value in preserving the independent action of individuals. It is, however --
06-480 +++$+++ 50938 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm not sure it's often the case. Give me some other examples where you can achieve the same industry-wide effect unilaterally.
06-480 +++$+++ 50939 +++$+++ TRUE +++$+++ MS. UNDERWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, as you have observed, virtually any vertical restriction could be accomplished by having the manufacturer integrate the retailing function and become one entity instead of two entities. Then the possibility of conspiracy or agreement is eliminated and the manufacturer, if he simply integrates the whole function, is -- can fix prices, fix his, what are in effect his own prices and be outside the reach of the antitrust laws. There are other reasons why a manufacturer might not find it convenient to do that integration, but it is certainly possible by ceasing to be multiple entities and to become one entity to avoid the prohibitions of the antitrust law. It is also -- so, this is old and well settled. Unlike the Schwinn rule against territorial restraints which was overturned only 10 years after it was established, or the Albrecht rule against maximum resale price maintenance which was overturned 29 years after it was established, this has a much more settled pedigree in the law and expectations have grown up around it. Second, it was endorsed and relied on by Congress, not enacted by Congress but endorsed and relied on by Congress, when Congress repealed the fair trade laws in 1975 by amending the very statute this Court is now asked to interpret.
06-480 +++$+++ 50940 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Were they relying on Dr. Miles or were they relying on us? That's the question.
06-480 +++$+++ 50941 +++$+++ TRUE +++$+++ MS. UNDERWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They were relying --
06-480 +++$+++ 50942 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They left the situation where it was, which is that the antitrust law is as determined by this Court, and we had shown our willingness to update the antitrust law when sound economic doctrine suggests is necessary.
06-480 +++$+++ 50943 +++$+++ TRUE +++$+++ MS. UNDERWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. The legislative history described in some detail in the Antitrust Institute's brief shows that actually they were returning the law to the per se rule against resale price maintenance because they thought resale price maintenance was bad and should be prohibited. This is -- it is also true that --
06-480 +++$+++ 50944 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But of course, they could always pass a law saying that if their intent is so clear. They didn't do that here.
06-480 +++$+++ 50945 +++$+++ TRUE +++$+++ MS. UNDERWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true, they did not do that here and I'm not suggesting that they did, only that, uniquely among the rules that this Court has established in the antitrust area, this rule has received the repeated attention of Congress; and so the Court's deference to Congress and reluctance to overturn the rule should be at its peek as compared with those other rules. And third, price is different. This Court has said that price competition is the central nervous system of the economy. Other restraints, to be sure, might indirectly affect price, but not with the same absolute force. Territorial restraints don't absolutely prevent price competition because customers can travel or order by phone, mail, or Internet, and indeed under territorial restraints there are often multiple retailers in a particular territory who can compete. Maximum price maintenance doesn't prevent competition at all unless, as the Court noted in Khan, it's really Minimum resale price maintenance in disguise, in which case the Court in Khan said it's illegal. Manufacturers can of course pay retailers for the services that enhance the product that are being advanced as the pro-competition benefit of resale price maintenance. But the question for this Court is whether the manufacturer should be allowed to use a price-fixing agreement to make that payment to buy those services, and that's not a question of fact for a jury to decide in a rule of reason trial. That's a question of statutory interpretation for this Court. It's a question really of what kind of currency a manufacturer can use to buy those retailer services. It's also true that the claim that price-fixing works to induce those services is both debatable and untested. The retailers have no obligations to provide services under the retail price maintenance agreement at issue in this case and in other cases.
06-480 +++$+++ 50946 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they could. I mean, you could easily write the agreement saying you have to charge this much and because you have to charge this much you also have to provide the training, the service, whatever the non-price inducements are.
06-480 +++$+++ 50947 +++$+++ TRUE +++$+++ MS. UNDERWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You could. You could also require those things without resale price maintenance and then the retailer would be free to decide to raise the price to pay for that or to provide it so efficiently that he could in effect engage --
06-480 +++$+++ 50948 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But then the retailer, but then the retailer might have a real incentive not to do a good job on the service because they really want to market it for price, not for service.
06-480 +++$+++ 50949 +++$+++ TRUE +++$+++ MS. UNDERWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That really depends, doesn't it, on what the consumers in the market want, and if it's correct, if the manufacturer -- if the claim on behalf of the manufacturer here is correct that what the customers want is service, the retailers are in at least as good a position to identify that fact as not. I think the point --
06-480 +++$+++ 50950 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but there you have the free rider problem, which is you go to the fancy show room, you figure out what you want, and then you buy it at the discount store.
06-480 +++$+++ 50951 +++$+++ TRUE +++$+++ MS. UNDERWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. That's at its peak, perhaps, when you're talking about electronics. When the shopping experience alone is what is thought to be the benefit, which is often the case, you can't free ride on that. You either shop in the place where you like to shop or you shop -- or you have a different shopping experience in Target.
06-480 +++$+++ 50952 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But some manufacturers want their product associated with excellent service, high warranty, and all of that. And there is no way to get that uniformly for that product without this kind of agreement.
06-480 +++$+++ 50953 +++$+++ TRUE +++$+++ MS. UNDERWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, there is. The manufacturer can contract for it. The manufacturer can decline to deal with people who don't provide it. The very same point that was being made earlier. I think that the point here is that permitting resale price maintenance would be such a drastic change in the longstanding settled interpretation of the Sherman Act that it doesn't really qualify as the kind of common law evolution that this Court has said is appropriate ordinarily in making antitrust rules under the Sherman Act. If that change is to be made at all, it should be made by Congress and not by this Court.
06-480 +++$+++ 50954 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Am I correct on the congressional point that there was a period when Congress would have prohibited the Solicitor General from making the argument he made today?
06-480 +++$+++ 50955 +++$+++ TRUE +++$+++ MS. UNDERWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, there was such a period. And this Court noted that fact in --
06-480 +++$+++ 50956 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So there was a legislative expression of a position on this particular issue?
06-480 +++$+++ 50957 +++$+++ TRUE +++$+++ MS. UNDERWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There was a legislative expression of position on this particular issue.
06-480 +++$+++ 50958 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that no longer is applicable?
06-480 +++$+++ 50959 +++$+++ TRUE +++$+++ MS. UNDERWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is -- the Solicitor General is no longer barred from making that argument, as is evidenced today. What he --
06-480 +++$+++ 50960 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I guess Congress changed its mind then.
06-480 +++$+++ 50961 +++$+++ TRUE +++$+++ MS. UNDERWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I think Congress found it unnecessary or perhaps questioned the wisdom or constitutionality of barring the Solicitor General from making particular arguments.
06-480 +++$+++ 50962 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I find it hard to believe that. (Laughter.)
06-480 +++$+++ 50963 +++$+++ TRUE +++$+++ MS. UNDERWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But Congress has consistently -- well, and the repeal -- the reason the repeal of the Miller-Tydings Act seems particularly relevant is that it is indeed -- it was an amendment to this statute that this Court is being asked to interpret, so it sheds some light on the on the meaning of this statute as it stands.
06-480 +++$+++ 50964 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ As Mr. Olson pointed out, under the fair trade laws this was per se legal. So that's kind of a different thing.
06-480 +++$+++ 50965 +++$+++ TRUE +++$+++ MS. UNDERWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. But when Congress repealed that, there were considerable -- there was considerable expression of legislative history, for those who find legislative history helpful, that declared opposition to resale price maintenance, not simply that it was sometimes helpful and sometimes hurtful. So to the extent Congress's intent can be gleaned from that legislative history, it was an intent to return to the regime of per se illegality.
06-480 +++$+++ 50966 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Maybe on the year by year, don't spend any money on, maybe Congress decided that wasn't an appropriate technique, but Congress has used that after, hasn't it, in other cases?
06-480 +++$+++ 50967 +++$+++ TRUE +++$+++ MS. UNDERWOOD +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It has, but I would question the wisdom of that technique as a method of expressing Congress's views. The fact that Congress went so far as to use it once suggests a very strong view indeed.
06-480 +++$+++ 50968 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Ms. Underwood. Mr. Olson, you have 3 minutes remaining.
06-480 +++$+++ 50970 +++$+++ FALSE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Respondent and its amici seem to recognize that what this Court said in State Oil versus Khan, that a vertical restraint imposed by a single manufacturer or wholesaler may stimulate interbrand competition even as it reduces intrabrand competition and, by the way, it enhances intrabrand competition on matters of service and availability and other things in addition to price. The Respondent and their amici seem to have acknowledged these pro-competitive factors but say you should do it by a contract with 5,000 different retailers, which you then have to go out and enforce, or you have to do it under a Colgate system, which the Ping brief demonstrates it's a blunt instrument, it requires terminating retailers with which you had a relationship for years, it prohibits even talking to the loyal retailers to fix small problems.
06-480 +++$+++ 50971 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you're just giving them an additional ground for termination.
06-480 +++$+++ 50972 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Pardon me?
06-480 +++$+++ 50973 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're just giving, you're just suggesting we should give them an additional ground for termination.
06-480 +++$+++ 50974 +++$+++ TRUE +++$+++ MR. OLSON +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. What we're suggesting is that the agreement is something, the details can be worked out. The manufacturer can -- and the Ping brief explains this. The manufacturer can go to the retailer and say: Look, maybe you didn't get it right, your sales person said the wrong thing; let's fix it, because we want to be dealing together. The antitrust laws -- in other word, what the Respondent and its amici want or they suggest forward integration, so you just acquire all your retailers. The benefits of these type of arrangements provide the consumers with choices. It stimulates interbrand competition. It promotes intrabrand competition on things other than price. It provides consumers with more choices. It ultimately gives more freedom to the manufacturer to stimulate the sale of its products, to enter the marketplace. These are things that the Court has said, and provides a more varied market price. The court has repeatedly raid that the presumptive rule is a rule of reason. Per se rules should be crossed out or not adopted unless they're dealing with a practice which is invariably anticompetitive. This practice, as acknowledged, is procompetitive. It provides many opportunities, and it is irrational for vertical restrictions to exist in this world in the non-price area or the maximum price area as subject to the rule of reason and the minimum retail price maintenance under a rigid per se rule that cannot be changed. And as this Court has repeatedly held, Congress intended by the use of restraint of trade and the unreasonable restraint of trade for this court to continue to breathe life into the restrictions of the antitrust laws in the benefit of the consumer and in the benefit of competition, eliminating rigid per se rules which make it unlawful for a manufacturer to do something that's rational in the marketplace, to give consumer choices, or to do it in some indirect way that is a lawyer's dream and an entrepreneur's nightmare makes no sense at all. For all those reasons, the rule of reason in this area, as in the other areas, should replace the per se rule which is rigid and anticompetitive at the end of the day. Thank you.
06-480 +++$+++ 50975 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Olson. The case is submitted.
06-484 +++$+++ 50979 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument this morning in case 06-484, Tellabs, Inc. versus Makor Issues & Rights. Mr. Phillips.
06-484 +++$+++ 50981 +++$+++ FALSE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: In 1995 Congress acted decisively to curb abusive private securities litigation. It took the extraordinary step of rejecting categorically the traditional rule of notice pleading in complaints that are filed under the securities laws. Instead it declared that, and this is at page 2 of our petition, "The complaint shall state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." The fundamental error in the court of appeals analysis in this case was in writing out of the statute the strong inference language that Congress clearly intended to be not only in those statutes, but obviously applied rigorously.
06-484 +++$+++ 50982 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ At some point during your argument -- and I know you only have 20 minutes -- will you tell me whether or not in your view the pleading standard that the judge must follow is equivalent, is the same as the instruction that's given to the jury? Because if it isn't, then the Seventh Amendment argument may have some more force.
06-484 +++$+++ 50983 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the answer to the question is that it does not have to be the same. I think Congress actually has greater authority in dealing with pleadings that is distinct from the Seventh Amendment right, but the Court doesn't need to go that far in this particular case because I think the inferences that we are asking the Court to draw from the record in this case would avoid any --
06-484 +++$+++ 50984 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, in writing -- I take it, so far as the jury, it's just whether it's more likely than not, preponderance of the evidence.
06-484 +++$+++ 50985 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's what the Court held -- held in Huddleston, yes, Your Honor.
06-484 +++$+++ 50986 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So your submission is, maybe not in this case, but insofar as your theory of the case, that the trial judge can, and in fact must basically apply a standard of fact -- standard of proof that's higher than that what the jury would.
06-484 +++$+++ 50987 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it's important as a standard of allegation, because what we're talking about here is an analysis of the allegations of the lawyers, and not any kind of an evidentiary showing by any of the plaintiffs. So I do think it's removed. I mean, this Court has really never addressed the issue of the extent to which the Seventh Amendment extends to pleadings. And I don't think this is the case in which to take up that issue because I think it is quite clear that what at least we're asking for as the appropriate interpretation of the Reform Act is that you need to apply -- that you simply follow Matushita and Monsanto, and that is to force the plaintiffs to demonstrate that innocent explanations can be set aside. And if you take that particular approach, which clearly is consistent with the Seventh Amendment, then it seems to me you -- the Seventh that you followed under the Constitution, is eliminated.
06-484 +++$+++ 50988 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Phillips, the Seventh Amendment or not, the question in 12(b)(6) is has the plaintiff stated a claim, and at the end of the line it's has the plaintiff proved a claim. But you're stating two different claims. The claim that must be stated is a stronger claim than the claim that must be proved, and I don't know of any other instance where that is so.
06-484 +++$+++ 50989 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know that there are any other instances in which that's true, Justice Ginsburg, but I don't think it's a constitutional problem. I think at the end of the day the question is, does Congress have the power to enforce its view of the appropriate way to proceed as a matter of policy at the pleadings stage, and I think the answer to that question is yes. But again, you don't have to --
06-484 +++$+++ 50990 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I wasn't asking it as a matter of constitutional law but I'm thinking, how do you construe these words, what is it, "strong inference?" And the words come out of, as I understand it, a Second Circuit decision. So I would think the most logical thing is that you'd look at the Second Circuit decision and say ah, Congress picked up those words from the Second Circuit decision, then we should pick up the standards that the Second Circuit applied. But your definition of strong inference is quite different from what the Second Circuit's was.
06-484 +++$+++ 50991 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I'm not sure that's 100 percent true. I think the real problem with the Second Circuit is there's no monolithic Second Circuit rule that's out there. The Second Circuit applied a number of cases under its particularity standards under 9(b) prior to the time Congress adopted the strong inference standard. Some of them -- I think we would be very comfortable with the analysis in Shields versus Citytrust Bank, for instance. The way Judge Jacobs analyzed the complaint in that case is precisely the way we're trying to analyze the complaint in this case. So if you --
06-484 +++$+++ 50992 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Phillips, can I ask this question?
06-484 +++$+++ 50993 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry.
06-484 +++$+++ 50994 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ One of the amicus briefs talks in terms of the percentages, how likely the inference, the word strong inference means 50 percent, 30 percent, 60 percent. Do you think the inference has to be stronger or less strong than the inference of probable cause in an affidavit for a search warrant to get access to the privacy of a home and so forth?
06-484 +++$+++ 50995 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it would have to be stronger than that, although I don't know how to translate that into percentages, Justice Stevens.
06-484 +++$+++ 50996 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ A civil case would impose a higher standard for getting discovery in a civil case than they would for getting access to a citizen's private papers and the like?
06-484 +++$+++ 50997 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the use of the language "strong inference" carries with it a very significant burden that has to be demonstrated by the buyer.
06-484 +++$+++ 50998 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ A burden of over 50 percent?
06-484 +++$+++ 50999 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, to be sure.
06-484 +++$+++ 51000 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In a criminal case, the person seeking that action is a government officer who presumptively is not acting out of selfish motives, whereas we're talking about private suits and some private litigants are selfish.
06-484 +++$+++ 51001 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Justice Scalia. And if you read the Securities Industries amicus brief, it ticks off all of the instances of harm that are caused by allowing -- too much of the private litigation is precisely that, which Congress was responding to.
06-484 +++$+++ 51002 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I just have to make it clear. Is the high likelihood, or strong inference, is greater than more likely than not?
06-484 +++$+++ 51003 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. I believe Congress would have intended it to be more --
06-484 +++$+++ 51004 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Doesn't the -- doesn't the standard at the pleading stage have to be the same as the standard at the summary judgment stage? If -- suppose that a certain set of facts is sufficient to defeat summary judgment. If the plaintiff alleges all of those facts in the complaint, are you saying that that complaint could be dismissed even though supporting those facts at the summary judgment stage would be enough to defeat a summary judgment motion?
06-484 +++$+++ 51005 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think at the end of the day I would make that argument. I don't have to make that argument here because it's clear to me that the same standards of Matushita and Monsanto that say you have to exclude innocent explanations would apply at the summary judgment stage as we're trying to apply at the pleading stage, so there is no disconnect. But if I were actually forced into that position, I think I would take that view, although I probably would argue first that the standard of Huddleston ought to be reconsidered, rather than rejecting clearly what Congress had in mind in 1995 when it acted to curb the abuses of private securities litigation.
06-484 +++$+++ 51006 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But isn't the difference between Matsushita and this particular case at least as you are presenting this case, the -- the -- focused on the strength of this exclusion of innocent conduct? As, as I recall Matsushita, there -- there had to be at that stage, there had to be evidence from which one could infer that the -- that the conduct was not innocent; but you're arguing for something stronger than that. You're arguing for, in effect, an -- an ultimate conclusion that excludes innocent conduct. And aren't you asking for more than just what Matsushita did at -- at that later stage?
06-484 +++$+++ 51007 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think there may be a slight semantic difference there, but the truth is at end of the day all we're asking for the Court to do is to evaluate the complaint, taking both the positive and the negative inferences from it, excluding ambiguities, interpreting them not in favor of the plaintiff, as you traditionally do, take into account whether there is an allegation of motive, and say at the end of the day whether or not that reaches a -- rises to the level of a strong inference.
06-484 +++$+++ 51008 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But -- but Matsushita as I recall did not require it to rise beyond the level of a plausible inference. And I think you're arguing for something stronger than that. And I think the language of Congress forces you to do it but I -- I'm just finding it difficult to conclude -- to equate the plausibility standard in, in Matsushita with the strong inference standard here. If you --
06-484 +++$+++ 51009 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if I'm going to err on either side, I obviously prefer that the Court carries out Congress's intent. We thing you needn't go any further than Matsushita did in order to reverse the court of appeals in this particular case. Obviously there is probably some potential distance between the two, where you could certainly interpret the strong inference standard more in the line the way the United States interprets it, as creating a high likelihood of scienter. And we don't -- we're certainly not objecting to that. We're just saying to the Court that you needn't go that far in order to decide this case, although obviously we would welcome a ruling along those lines if the Court's inclined to go that far.
06-484 +++$+++ 51010 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it fair to say at the pleading stage it's the equivalent of a clear and convincing standard, whereas at the end of the road it would only be more probable than not?
06-484 +++$+++ 51011 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, again, I think it -- I think it puts an issue -- and we raised this in our reply brief, whether or not Huddleston should be reconsidered in light of this sort of basic change in the way Congress is approaching private securities litigation. But, so my --
06-484 +++$+++ 51012 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So you do --
06-484 +++$+++ 51013 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are a number of ways to go at it. But if it turned out to be a disconnect, that would not offend at least my sense of what Congress was trying to achieve here.
06-484 +++$+++ 51014 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yeah. Well, I don't think Congress was trying to achieve an alteration in the ultimate standard, either, in the jury standard. What it was concerned with is the enormous expense of -- of discovery. And, and tried to set a high wall to get to the discovery stage. I don't know why that should have to affect or should logically affect the standard that the jury is told to use.
06-484 +++$+++ 51015 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ All I'm suggesting is that if the Court were concerned that somehow there is a disconnect between the pleading standard and the ultimate standard of proof, the way to resolve that incongruity -- if it is one -- would to be reconsider the ultimate standard of proof, not to throw out the clearly congressionally approved baby as part of that bath water.
06-484 +++$+++ 51016 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can you tell me a little bit of how -- how this should work in your view? Assume the CEO makes misstatements as to the earnings report and the acceptance of one of its new products. Just assume that.
06-484 +++$+++ 51017 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
06-484 +++$+++ 51018 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can we make a strong inference that a CEO knows what his own earnings reports are?
06-484 +++$+++ 51019 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You mean with a specific earnings report rather than just simply sort of sales projections and demand?
06-484 +++$+++ 51020 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Can we make a strong inference that a CEO knows the status of current earnings --
06-484 +++$+++ 51021 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, my guess is they --
06-484 +++$+++ 51022 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- when he makes, when he makes a statement.
06-484 +++$+++ 51023 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think they would have to make an allegation that the -- that the CEO routinely is provided with that information rather than simply assume it. I think it's the same problem you have with their -- with their allegation that it's common sense that CEOs will act to protect their own personal self interest and the overall welfare of the company by misrepresenting the status of events.
06-484 +++$+++ 51024 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How about just saying that he knew it?
06-484 +++$+++ 51025 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not --
06-484 +++$+++ 51026 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Just saying that he knew it. Without saying why they knew that he knew it? You're saying they have to give a reason why they knew that he knew it, namely he routinely read these reports? Suppose they didn't say that. They just said knowing that the -- that the figures were otherwise, he -- he set them forth.
06-484 +++$+++ 51027 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that's sufficient, because it requires for the facts that particularly show --
06-484 +++$+++ 51028 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But suppose it says, which I think it did say, that Mr. Notebaert typically stayed on top of the company's financial health by having weekly conversations with other executives. He had his hands on the pulse of the company. He saw weekly sales reports and product -- projection -- production projections. Now it seems like an allegation that's very specific.
06-484 +++$+++ 51029 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the -- but the problem with that allegation, and we're talking about the 6500, the Titan 6500 product specifically, in that context, the report is, there's nothing in there that says what those reports say about the 6500. And remember, this is a case where the plaintiffs have 27 whistleblowers inside the company who could provide you with all of the detail in the world; and yet when it comes time to tell you what was in the 6500 report that would -- that would suggest that it's not available, there's not word one in the allegation.
06-484 +++$+++ 51030 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I thought they alleged at least that for about a year previously in respect to the 506500 that it was wrong known throughout the company that the 6500 had been delayed. Don't they make an allegation like that?
06-484 +++$+++ 51031 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right but that's -- that being delayed for a year is not the basis for the claim. The question was is the, is the 6500 being sold; and that was the allegation. And the answer to that is he -- I -- he had every reason to believe that, based on what they've claimed because they've not produced a report or said that there's anything inside the report that says to the contrary about that. Again, it seems to me --
06-484 +++$+++ 51032 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The 6500 has long been delayed. Everyone knows that in the company. So he knows it's long been delayed.
06-484 +++$+++ 51033 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think --
06-484 +++$+++ 51034 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Then what he says is it is being shipped and delivered. Something like that.
06-484 +++$+++ 51035 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But Justice Breyer, that -- that long been delayed period runs all the way back to 1998. And we're talking about events in 2000 and 2001. So the notion that it's been long delayed says nothing about what Mr. Notebaert was -- was revealing in March and April and June of 2001. It, it could potentially, but it equally, it couldn't. It's the same problem you get with the 5500, where the court of appeals specifically said it is quite plausible that Mr. Notebaert never saw those reports. Now how you can make that concession and nevertheless say there is a strong inference that he acted to deceive, strikes me as absolutely implausible.
06-484 +++$+++ 51036 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ April '01, he says everything we can build we are building, and shipping. The demand is very strong. And then what they say is of course nobody wanted any of it, it was long delayed, and they've known that since 1998 and he has his finger on the pulse of the company.
06-484 +++$+++ 51037 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But you -- you -- Justice Breyer, you make a leap there.
06-484 +++$+++ 51038 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Oh. Yeah.
06-484 +++$+++ 51039 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Is that they all knew that. The point is they knew that it was delayed back in 1999. What they don't do is tie that in to what he knew in 2001; and that, to me, that's the central point in this case, is do you require that kind of specificity? And it seems to me there's no other way to read what Congress says in this statute than to that. I'd like to reserve the balance of my time.
06-484 +++$+++ 51040 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you Mr. Phillips. Mr. Shanmugam.
06-484 +++$+++ 51042 +++$+++ FALSE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you Mr. Chief Justice, and may it please the Court: While meritorious private actions are an essential supplement to Government enforcement of the securities laws, abusive action impose substantial costs on companies and their shareholders. As a cornerstone of its effort in the Reform Act to address the problem of abusive actions, Congress adopted uniform and more stringent pleading requirements including the strong inference requirement at issue in this case. The court of appeals erred by holding that a plaintiff can satisfy that requirement simply by alleging facts which an inference of state of mind could be drawn. The court of appeals thereby misinterpreted the Reform Act. And --
06-484 +++$+++ 51043 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Do you have a position on Justice Alito's earlier question about whether the standard at the summary judgment stage is the same as the standard at the pleading stage?
06-484 +++$+++ 51044 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ First of all to be clear, Mr. Chief Justice, we don't believe that the Court needs to address that question in this case, because we don't believe that that sort of disparity would present any Seventh Amendment concerns. However, if the Court does believe that any disparity in the degree of probability required does present Seventh Amendment concerns, we believe that it is more consistent with Congress's intent to apply the strong inference requirement at the proof stage as well as the pleading stage rather than to water down the strong inference requirement that Congress adopted at the pleading stage. And we believe that that requirement does impose a very high burden. In our view, it requires a plaintiff to allege facts that give rise to a high likelihood that the conclusion that the defendant acted with the necessary date of mind follows from those allegations.
06-484 +++$+++ 51045 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And by the proof stage you mean both summary judgment and submission to jury?
06-484 +++$+++ 51046 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that that is right, Justice Kennedy. I suppose that if the perceived constitutional concern is solely regarding the degree of likelihood that is required, it could be applied simply at the summary judgment stage; but to the extent that the Court believes that it is a matter for the jury to determine whether a given set of facts gives rise to an inference of the requisite strength then yes, the jury would need to be instructed in a manner consistent with the strong --
06-484 +++$+++ 51047 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What would you think about the following --
06-484 +++$+++ 51048 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ May I just -- may I just, very briefly. . Putting aside the constitutional problem, do you think the standards are the same or different between the pleading stage and the constitutional stage -- and the summary judgment stage?
06-484 +++$+++ 51049 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, again, we don't believe that the Court needs to address that question.
06-484 +++$+++ 51050 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I understand that. That's not my question.
06-484 +++$+++ 51051 +++$+++ TRUE +++$+++ MR. SHANMUGAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the statute by its terms only --
06-484 +++$+++ 51052 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It is either a yes or no question.
06-484 +++$+++ 51053 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think that the answer is yes if the Court feels it needs to address that question. And to be sure, the strong inference standard that Congress adopted was framed only in terms of the pleading stage. And our view --
06-484 +++$+++ 51054 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ -- there was a pleading stage, I would like your clear view on how much that changes. It has been the understanding that when there is a 12(b)(6) motion, you look only to the face of the complaint and you construe the allegations in that complaint in the light most favorable to the plaintiff. Is that rule not applied under the interpretation you are giving us of strong inference?
06-484 +++$+++ 51055 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that it is, Justice Ginsburg, to this limited extent. In an ordinary civil case, the case is governed of course by Rule 8. And in some sense the rule that the allegations in the complaint must be construed in the light most favorable to the plaintiff is really derived from Rule 8 and its requirement that a plaintiff need only provide a shortened claim statement of the relevant underlying facts in order to survive a motion to dismiss. What Congress did in the Reform Act was to require first of all some degree of particularity in allegation; but Congress went further than that; and to the extent that Congress spoke in terms of the inferences that can be drawn from those allegations, we do believe that Congress abrogated the background rule that the allegations must be read in the light most favorable to the plaintiff, or as some courts have put it, that all reasonable inferences that can be drawn from the complaint should be drawn in the plaintiff's favor. That clearly is a change on the preexisting law; and it is a change with regard to the law that circuits were applying before the enactment of the Reform Act.
06-484 +++$+++ 51056 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why don't we simply assume that the read most favorable to the plaintiff rule is still in place, but that reading it most favorably to the plaintiff, it must rise to the level of supporting the strong inference?
06-484 +++$+++ 51057 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I guess, Justice Souter, that I would wonder what it would mean to say that you read the allegations in the light most favorable to the plaintiff. If what it means is that a plaintiff can simply accumulate reasonable subsidiary inferences in order to create the strong inference of state of mind that is ultimately required, then I think I would disagree that that rule remains in effect. Precisely because our view is that in applying the strong inference standard, a court should consider other possible explanations for the defendant's conduct that are not foreclosed by the allegations --
06-484 +++$+++ 51058 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, but I was using the word inference to -- to refer to some reasoning process based upon what is stated. Not on assumptions favorable to the plaintiff. And if inference is to tie -- is, is a term that is tied to what is alleged, then I don't see any -- any contradiction between reading those allegations most favorably, but saying the statute in each statute requires that the -- that the total force of the inference rise to the level of strength that you speak of.
06-484 +++$+++ 51059 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think our only concern, Justice Souter, would be that where a plaintiff includes ambiguous allegations in the complaint, a court should consider the possibility that those ambiguities work to the defendant's favor as well as working to the plaintiff's favor. And one concrete example of that in this case are the allegations that concern the Titan 5500. There are allegations in this case that there was a study and there were various internal reports that indicated that demand for that product was declining. But the complaint does not specifically allege that that study and those internal reports were even available at the time the CEO made the alleged --
06-484 +++$+++ 51060 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Shanmugam, could -- could I get you back to -- to your, your assertion of we don't have to reach in this case the question of whether the same standard applies at trial as, as at the pleading stage? It seems to me a Seventh Amendment claim has been raised. It's our usual policy to avoid unnecessary constitutional adjudication. If indeed the two standards are the same, there's certainly no Seventh Amendment problem. So why don't we have to first of all decide, in resolving the Seventh Amendment claim, whether the two standards are the same?
06-484 +++$+++ 51061 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that is certainly correct, Justice Scalia, but in our view, there is no constitutional problem here. And the reason that there is no constitutional problem here is in making the probabilistic determination that is required by the Reform Act, a court is taking the allegations in the complaint as true. It is not engaging in any weighing of the evidence.
06-484 +++$+++ 51062 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you're getting to the merits of the constitutional problem. And we usually run away from constitutional problems. We don't even want to consider the merits of it. And we don't have to, if indeed the two standards are the same.
06-484 +++$+++ 51063 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, to the extent that the Court views the constitutional issue in this case as sufficiently substantial to trigger the canon of constitutional avoidance, then we do believe that the better view, the view that is more consistent with Congress's intent, is that if the Court is choosing between raising the standard at the pre stage and watering down the standard at the pleadings stage, we believe that the former is more consistent with Congress's --
06-484 +++$+++ 51064 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Even if there is no Seventh Amendment problem, what sense would it make to have a regime that says plaintiff has to plead more than the plaintiff has to show at summary judgment or prove at trial.
06-484 +++$+++ 51065 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Congress was concerned, Justice Alito, with the problem of abusive pleading. That much is crystal clear. And as part of that concern, Congress was concerned that plaintiffs could readily allege fraud by hindsight, and Congress may have been concerned that the plaintiff could do so not only by making a conclusory allegation of state of mind, but also making a slightly less conclusory allegation of state of mind by alleging facts that merely give rise to a reasonable inference of state of mind. If Congress hadn't had that concern, it obviously could have codified the reasonable inference standard that was then in use by a number of other courts.
06-484 +++$+++ 51066 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What do you think in writing this opinion? There are a couple of ways. One, you can find strong inference in terms of some other words. Two, you could look to history. Or three, you could just try an example. Say strong inference means strong inference. Here's an example. This is a complaint. It meets it, or it doesn't meet it. Which way, in your opinion, will work best in this case?
06-484 +++$+++ 51067 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, our primary concern in this case is with the way that the Court of Appeals articulated the applicable standard, which we believe may have pernicious effects in future cases. And so we certainly believe that it would be appropriate for the Court to vacate and remand for the Court of Appeals to apply the correct standard. But just to be clear --
06-484 +++$+++ 51068 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You said the Court of Appeals to apply it. Could the Court of Appeals applying the standard that you say is correct come to the same decision that it came to using a different verbal formula.
06-484 +++$+++ 51069 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In our view, Justice Ginsburg, applying the correct standard, the decision of the Court of Appeals in this case should be reversed. And if the case were remanded to the Court of Appeals for application of the standard, we certainly think that the Court of Appeals should come out the other way.
06-484 +++$+++ 51070 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You had something else to say in answer to my question, which I would like to hear.
06-484 +++$+++ 51071 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it was just that point, Justice Breyer, namely, that if the Court believes that it would be useful to provide guidance to the lower courts by applying the standard itself in this case, we do believe that the decision of the Court of Appeals should be reversed rather than vacated.
06-484 +++$+++ 51072 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is the requisite standard, knowledge of falsity.
06-484 +++$+++ 51073 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The requisite scienter is either intent or recklessness, with regard to the underlying conduct at issue, in effect --
06-484 +++$+++ 51074 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Intent to make a false statement?
06-484 +++$+++ 51075 +++$+++ TRUE +++$+++ MR. SHANMUGAM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that's right. And in fact, in misstatement cases, that is knowledge of falsity.
06-484 +++$+++ 51076 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you Mr. Shanmugam. Mr. Miller.
06-484 +++$+++ 51078 +++$+++ FALSE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court? We believe the Seventh Circuit had it right. We believe that what the Seventh Circuit, and this is in partial response to you, Justice Breyer, is take more or less a holistic view of the entirety of the complaint. The business about the 5500, the business about the 6500 not being available when on December 11, 2000, Notebaert says it's available, the fact that they weren't shipping it, they weren't selling it, it didn't work, and the extensive information from confidential sources that there were, as one judge once referred to it, accounting shenanigans going on, designed to shift income into the fourth quarter of 2000. We think that when the court looked at that, it said, looks to us as if there's --
06-484 +++$+++ 51079 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do we take judicial notice that a CEO knows these things and that's the strong inference.
06-484 +++$+++ 51080 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, you have confidential sources in this case, and in the case, Notebaert is hands on, he's talking to people, he's on the phone all the time. We're talking about the 5500 --
06-484 +++$+++ 51081 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you agree you have to have that? You have to have some specific allegation to show of his knowledge? We can't just infer that?
06-484 +++$+++ 51082 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would think you should be able to infer it with the CEO. I think the confidential sources demonstrate in this case, he must have had it, given his nature, the status of these products, his day-to-day --
06-484 +++$+++ 51083 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The most suspicious thing in the complaint that I could find was where you say there's an internal market report, and it revealed demand for the 5500 was drying up, and revenue would decline by 400,000,000. Then you date that with in or about early '01. Now, I think if you knew or had reason to believe that it was prior to March or April of '01, you would have said so.
06-484 +++$+++ 51084 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If we knew.
06-484 +++$+++ 51085 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, and therefore, there's quite a good chance here that this report was written after he made the statements. What am I supposed to do with that? I mean, I know what you said. And you said your best. And that's your best.
06-484 +++$+++ 51086 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. This notion of strategic ambiguity is in a sense humorous, given the obstacles that a plaintiff has to get the goods, so to speak. Just think about the investigation efforts that went into this case. What you do, Justice Breyer, is -- and I think this is what the Seventh Circuit did -- look at everything, look at the fact that you have got confidential sources saying 5500 demand is drying up, perhaps as early as middle 2000. Parts are not being ordered. People are going home early. Verizon dropped 25 percent, fourth quarter. Verizon dropped 50 percent in January. You're the CEO. You don't know that your flagship product is drying up? That there's inventory, that people are going home? That your best customer doesn't know you anymore?
06-484 +++$+++ 51087 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're arguing the facts and the inferences. You said the Seventh Circuit got it right. As I read their articulation of the standard on page 20A of the petition appendix, it's the normal standard that would have been applied prior to the passage of the PSLRA. Could a reasonable person infer -- Congress passes a law saying they've got to give rise to a strong inference. Shouldn't that have changed the standard?
06-484 +++$+++ 51088 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We believe two propositions. Number one, you can't exceed the Seventh Amendment, and the Seventh Circuit --
06-484 +++$+++ 51089 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't understand the Seventh Amendment argument here. Congress can surely articulate the standard that's going to be applied as a matter of substantive law. If Congress says, you have to prove by clear and convincing evidence, that doesn't interfere with the Seventh Amendment because a jury would be instructed pursuant to that standard.
06-484 +++$+++ 51090 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct, Chief Justice. But that is not what Congress did. Congress did not elevate the burden of proof. That is why Mr. Phillips has asked you to, in effect, to overrule Huddleston.
06-484 +++$+++ 51091 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, but Congress just established an entry qualification for getting into court. And there are a lot of entry qualifications. In diversity cases, you -- if you allege diversity, and it existed at the outset, that's fine. That doesn't have to be proved at the end of the case. Indeed even if you prove the contrary, the case is still validly there. Congress can establish entry requirements even when they differ from, or have indeed nothing to do with the merits that the jury is supposed to decide.
06-484 +++$+++ 51092 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that is absolutely correct, and indeed rule 9(b) has been an entry qualification since 1938. But there are entry qualifications, and there are entry qualifications. In this case, in effect, the motion to dismiss operates as a dispositive motion. It cuts off the ability to proceed at all, and it does it, if you listen to the standards being proposed by Petitioner, and by the United States --
06-484 +++$+++ 51093 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's the difference between what Justice Scalia was just saying? You can't come into Federal court unless you have at least $200,000 damages. Now, you might have been just as much hurt if you had less, but that would be constitutional. So here you can't get into Federal court unless you have a really strong claim, an overwhelming claim that you have to demonstrate at the beginning. Now, you might have a good claim, but we're not going to let you come into Federal court. We only want those people who are really strong, just as we only want those people who are really suffering.
06-484 +++$+++ 51094 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And did Congress raise the burden --
06-484 +++$+++ 51095 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No. No, not the burden of -- it's the entry.
06-484 +++$+++ 51096 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The entry points you referred to, the so-called pleas in abatement, to put on my common law hat, a jurisdiction venue, et cetera, they may raise issues of fact and Congress, in control of the Federal courts, can calibrate it any way they want. But when you are dealing with the core function of the jury -- and matters of abatement were never considered to be core functions of the jury -- I think a whole range of cases starting with Slocum versus New York Life --
06-484 +++$+++ 51097 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought you told me that Congress could set a high level of burden on factual issues, and that that wouldn't intrude upon the Seventh Amendment.
06-484 +++$+++ 51098 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm distinguishing, Mr. Chief Justice, between the merits and the entry point.
06-484 +++$+++ 51099 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you saying that Congress can not set a fact burden on the merits that is different than preponderance of the evidence.
06-484 +++$+++ 51100 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. No. No. No. If Congress wants to change preponderance to clear and convincing, it can.
06-484 +++$+++ 51101 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So you would say that you could have a beyond reasonable doubt standard that must be met at the pleading level, but more likely than not at the jury level?
06-484 +++$+++ 51102 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. That is something I disagree with. If the substance of the law --
06-484 +++$+++ 51103 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ We want to know what the rule is.
06-484 +++$+++ 51104 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm not sure it's the rule. It's what I would advocate. If the substance says predominance, then to raise the pleading bar on what in effect is a dispositive motion -- and I don't think it makes any difference whether it's a JNOV, a directed verdict, a summary judgment, motion for judgment on the opening statement -- and you decided all of those cases. And you protected what Justice Souter referred to in Markman as the core function of the jury. You have always said these procedures are okay, as long as it does not call for the resolution of fact issues, because that's the core function of the jury. Now this Court is faced with, in effect, coming back down that time line to the motion to dismiss.
06-484 +++$+++ 51105 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If I'm with you so far, why would you suppose that Congress would create a different standard on the motion to dismiss than they meant to apply at the merits standard?
06-484 +++$+++ 51106 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think Congress would. I do not believe Congress ever intended -- it's not in the statute, it is not in the legislative history, it is not in any case, Matsushita, Monsanto are unique antitrust cases, and in both cases, the Court, if you read the opinions fully, protected the jury function. They said there was simply nothing beyond the assertions standing alone when you have competitive and anticompetitive conduct to protect substantive antitrust law. That doesn't do it.
06-484 +++$+++ 51107 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, then what was Congress trying to do when they said strong inference? It seems to me that if you think the standards have to be the same at pleading and at proof, and Congress says strong inference at pleading, it means you have to show a strong inference at proof, and that's why there's no Seventh Amendment problem.
06-484 +++$+++ 51108 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What you have to show at proof is preponderance.
06-484 +++$+++ 51109 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Then it seems to me that you have the meaning of strong inference and reasonable inference.
06-484 +++$+++ 51110 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our standard, as proposed, and we think --
06-484 +++$+++ 51111 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You don't want to answer yes or no there?
06-484 +++$+++ 51112 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- is reasonable jurors, who are finders of fact, could find by a preponderance of the evidence that the defendants acted with scienter.
06-484 +++$+++ 51113 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So you're saying those words, strong inference, mean essentially the same thing as reasonable inference.
06-484 +++$+++ 51114 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. You can have lots of reasonable inferences that don't meet a preponderance notion.
06-484 +++$+++ 51115 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's true, but imagine a case where the plaintiff with tremendous candor sets forth every bit of testimony that's going to be heard on both sides. And then you read that document and you conclude this is the weakest case I've ever heard, but I do think a reasonable juror could find for the plaintiff. And that would be the weak evidence standard. And lo and behold, that could be -- you know, what do we do about that? Because using your do you send it to a jury test, we could easily imagine cases where that meets the weak evidence standard, the weak inference and not the strong inference. And what I'm driving at is, I don't see a way of avoiding this Seventh Amendment problem.
06-484 +++$+++ 51116 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If --
06-484 +++$+++ 51117 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because they certainly didn't intend the weak inference standard.
06-484 +++$+++ 51118 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you follow petitioners in their attempt to deconstruct not simply Rule 8's construction, but hundreds of years of what this Court in Jones versus Bock referred to as usual procedural practices which are not to be lightly departed from, the historic notion is you look at the complaint and in a curious way, you have blinders on. You look at the complaint. You read it in the light favorable to the pleader. You do not weigh. That is a jury function. You do not look for exculpatory explanations.
06-484 +++$+++ 51119 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How can you assess the strength of the inference that can be drawn from the facts alleged in the complaint without considering all the inferences that could be drawn from those facts? I just don't understand that argument. You see somebody -- let's say you saw somebody today walking east on Pennsylvania Avenue in the direction of Capitol Hill. Now you -- there's -- you could draw an inference that the person is coming to the Supreme Court. And if there were no other building in Washington, that would be a very strong inference. But don't you also have to consider the inference that the person is going to the Capitol, the person is going to the Library of Congress, the person is going to some other location up here? You have to consider all the inferences that you can draw from the facts.
06-484 +++$+++ 51120 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As the Seventh Circuit did, we agree, you look at the totality of the complaint. That's a given. But there are contrary inferences that undermine the strength of the plaintiff's inferences. They weaken it. And they're -- they emanate from the complaint. There are other kinds of inferences, let's call it nonculpability, that don't denigrate the strong inference which let's assume hypothetically has been established. They're just side-bar possibilities.
06-484 +++$+++ 51121 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, let's take one specific example that the petitioners did, and that is this matter of the channel stuffing. They say here's a notion, channel stuffing. It could mean goods were shipped that nobody ever ordered, or it could mean something different. It could mean discounting and other incentives to get people to buy. So there's good channel stuffing and bad channel stuffing, and it sounds like good cholesterol, bad cholesterol; you can't tell from the allegations that it's the bad stuffing that's at issue.
06-484 +++$+++ 51122 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The Seventh Circuit reached that conclusion, I think, by looking at some of the confidential sources which sort of indicated that there was channel stuffing in the sense of pushing product out which was coming back. The head of Verizon complained about the channel stuffing, so there's reason to believe that at least some of it is bad. Just enough. Now, is that in and of itself determinative? No. Again, I come back to the notion that what the Seventh Circuit did is look at the 5500, look at the 6500, look at the earnings projections which proved false, looked at back-dating, channel stuffing. Looked at all of that and said okay, even if I treat channel stuffing as weak, I have these other things. And as Judge Lynch of the First Circuit said, each fact of scienter is like a brush stroke.
06-484 +++$+++ 51123 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Are you entitled to consider the brush strokes that are not there as well as the subsidiary brush strokes that are? In Justice Alito's example, if the pleadings don't point out that the Library of Congress and the Capitol are also up on this hill, is the judge at the motions stage entitled to consider that?
06-484 +++$+++ 51124 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Obviously, if it's something you can take judicial notice of, then yes.
06-484 +++$+++ 51125 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. Then that is engaging in something more than construing the pleadings most favorably to the plaintiff.
06-484 +++$+++ 51126 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But it's within the realm of what courts have done for the longest of the time. They look at documents attached. They look at judicial notice.
06-484 +++$+++ 51127 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you think about that? There are at least some circumstances, then, in which there this is kind of critical assessment function that you concede must go on, rather than simply a piling favorable inference onto favorable inference to see if it gets to the strong points.
06-484 +++$+++ 51128 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I repeat what I said a couple of minutes ago, Justice Souter. If the negative depletes the affirmative, if there's a correlation between them, I can understand that. Maybe it eliminates that fact. Maybe it reduces that fact. But when we hear about motive, what does motive and guidance reduction months after the false statements have to do with whether the statements were false, whether the 5500 was --
06-484 +++$+++ 51129 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That is -- that is an argument for the weight of considering motive rather than the relevance of the motive consideration per se.
06-484 +++$+++ 51130 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it is a tough line. I think this is the kind of line district judges have to draw. I think if you look at your own precedents like Anderson versus Liberty Lobby and all of those jury trial cases, you see the repetition of the notion that judges do not balance inference chains on a matter going to the core function of a jury.
06-484 +++$+++ 51131 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But all of those cases were before the PSLRA where Congress, it seems to me, established a very different standard. They said they have to support a strong inference.
06-484 +++$+++ 51132 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A strong inference. Not a conclusive inference.
06-484 +++$+++ 51133 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Strong inference was not the test that was being applied in Anderson, Liberty Lobby, in any of those cases.
06-484 +++$+++ 51134 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But can't -- but strong inference, as Justice Ginsburg said much earlier, was the standard not only in the Second Circuit but in the First Circuit and in the Third Circuit.
06-484 +++$+++ 51135 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you think about the approach -- because I have had some of these cases. And I see -- I think words, words, words. And what Congress said was strong inference, and we're not going to get any further by looking for some other words. So therefore, take strong inference. The most helpful thing is take it, look at the complaint, read it, and then say okay, this is a strong inference. Or maybe we'd say it isn't. We read it, and avoid all the other issues. What do you think about that?
06-484 +++$+++ 51136 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Live to fight another day?
06-484 +++$+++ 51137 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right. And then on appeal, we would say, no, it's not a strong inference, or yes, it is a strong inference. I mean, I hope we're going to establish some standards for how you go about determining whether there's a strong inference or not.
06-484 +++$+++ 51138 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I hope we're going to recognize that Congress thought it was doing something. Your argument so far, Professor, doesn't indicate that Congress --
06-484 +++$+++ 51139 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Excuse me.
06-484 +++$+++ 51140 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You indicated that the -- you know, the plaintiff had to do all this investigation. The whole point of this was that the defendants were being disadvantaged.
06-484 +++$+++ 51141 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Look at the statute in its entirety. This isn't a statute that just deals with pleading scienter. Look at the provisions dealing with the selection of lead representative, which has produced this incredible shift from '95 to public institutions, pensions and labor unions. They don't bring frivolous cases. Look at the control that statute gives over selection of them with notice provisions to make sure you've got the --
06-484 +++$+++ 51142 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How does that change how we should read strong inference in the statute? Are you saying don't worry whether it's a strong inference or not because labor unions are bringing the cases and they're not going to bring a frivolous case? No. Congress said there has to be a strong inference. And what concerns me is that the very standard that the Seventh Circuit articulated said simply could a reasonable person infer. The notion of strong inference isn't in that standard at all.
06-484 +++$+++ 51143 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The notion of strong inference starting with the Second Circuit doctrine, as used in many other circuits, was actually a much lower standard than what we are recommending. If I believe -- if I think back at Greenstone, it was reason to believe, or tends to believe, or circumstantial evidence in Greenstone and in Burlington Coat. Under our standard of preponderance, the ability to find preponderance, you are elevated. You are also elevated by the preceding subdivision which requires a level of particularization, never known in Federal Rule --
06-484 +++$+++ 51144 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Miller, going back just to the word strong, forgetting the particularization from it, do you think you can categorize the strength in percentage terms? They have to be more than 50 percent? More than probable cause? We're talking all abstractly here and I find it easier to think when I think about numbers.
06-484 +++$+++ 51145 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I have -- forgive me. I haven't seen a judicial opinion that says at the 33 and one-third percentage of probability, I've got to give it to the jury, because that jury might file for my --
06-484 +++$+++ 51146 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I think it's 66 and two-thirds. I think that is -- (Laughter.)
06-484 +++$+++ 51147 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Is that because you never met a plaintiff you really liked? (Laughter.)
06-484 +++$+++ 51148 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ At least we know that in the probable world --
06-484 +++$+++ 51149 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I took a liberty there with the Justice. I don't think you can ascribe a percentage to it. I think --
06-484 +++$+++ 51150 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I think more likely than not, most people think of 49, 50 percent. Can you tell us whether strong inference is stronger than more likely than not?
06-484 +++$+++ 51151 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do not believe it is. I think -- I think strong inference -- if we're doing the numbers game -- may actually be 40 percent. If a district judge is looking, again, I say at the entirety of discounts --
06-484 +++$+++ 51152 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Let me just reclaim the question. Is it stronger or weaker than probable cause in a criminal context?
06-484 +++$+++ 51153 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, I would hope it's stronger. I would hope it's higher than probable cause.
06-484 +++$+++ 51154 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about clear and convincing? Is it below clear -- I mean, they are the only two standards I actually understand. Without picking a number out of air, is preponderance, I think I can figure that out. And I guess I can figure out beyond a reasonable doubt. But other than those, when you talking about strong, when you talk about clear and convincing, I have no idea what those things mean. Do you?
06-484 +++$+++ 51155 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And --
06-484 +++$+++ 51156 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You don't think they mean anything?
06-484 +++$+++ 51157 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I think they mean what a district judge honoring his Article III commission concludes after an intensive evaluation of the entirety of the complaint, looking for that strong inference, putting on his sort of motion to dismiss 12(b)(6) hat, says okay --
06-484 +++$+++ 51158 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Just okay?
06-484 +++$+++ 51159 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I did not mean that. Don't take me literally on that. For heavens sakes, I'm from Brooklyn. I'm very colloquial. I'm very sorry about that.
06-484 +++$+++ 51160 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me write that down. We should not take you literally. All right. (Laughter.)
06-484 +++$+++ 51161 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay, you two are even now. (Laughter.)
06-484 +++$+++ 51162 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Understand, you keep asking, quite properly obviously, how does strong inference change anything? The test we have proposed and the test I believe the Seventh Circuit applied is not the classic 12(b)(6) have you stated a claim, because we all know at least traditionally, under notice pleading, you can march through that. This test, if you follow that time line backward, is in effect asking that district judge to make a decision on looking at the totality of this complaint, is this case trial worthy? It's a curious thing. I don't envy district judges who have to do this. Is it trial worthy? Why would Congress say, if a district judge is willing to say under the classic test, I think it's trial worthy, there's no reason to believe that Congress wanted to cut that case off.
06-484 +++$+++ 51163 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Trial worthy under preponderance standard or trial worthy under the strong inference standard?
06-484 +++$+++ 51164 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, I think he is becoming slightly schizoid, he is saying, I'm looking at strong inference. I'm looking at the motion to dismiss structure as it's been, the usual procedure, 200 years, and I have to make a judgment because Congress was pushing here. There's no doubt about it. I have to make a decision on the basis of what I've got, which is virtually nothing -- let's face that -- I think -- I think if these allegations are proven, it is certainly trial worthy.
06-484 +++$+++ 51165 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It sounds to me like --
06-484 +++$+++ 51166 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's not trial worthy, but rather discovery worthy.
06-484 +++$+++ 51167 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm sorry. Justice Stevens, say it again.
06-484 +++$+++ 51168 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I think the question is not whether it's trial worthy, it's whether it's worthy for discovery. That's really what's at issue in this.
06-484 +++$+++ 51169 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the realities out there are they built a wall. They put in all of these procedural protections and they said no discovery until you climb the wall. Now what kind of a wall was it? Was it a Dutch dike or the Berlin Wall? If you look at that statute, contrary to what Mr. Phillips urges, there are multiple policies expressed in that statute, one of which is, private cases are good. Let's just get the right people to run those private cases. Let's control them. Let's, let's have a greater threshold, but let's not throw the baby out with the bath water. Because everybody seems to agree private cases help.
06-484 +++$+++ 51170 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I want, I want to be fair. I interpreted your argument -- and please tell me if this is incorrect -- as indicating that if I think strong inference is greater, more onerous than more likely than not, at the pleading stage, I then also have to say this is the instruction that must be given to the jury? In order to avoid the, the discontinuity between the pleading stage and what --
06-484 +++$+++ 51171 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The way you state it, Justice, is something very hard for me to respond to. Congress did not change the persuasiveness, the proof burden. If you go through the statute, you will see spots where they did. Congress knew how to change proof standards. Congress knew how to change Federal rules. Congress did not change the proof in private actions. Congress did not change all of the background procedure like the background procedure in Jones and -- it is just not there yet. Congress did change a couple of Federal rules explicitly. So I, I cannot comprehend how, if the case reached the jury, you would have to charge above predominance. And I, I think we've got a stone rolling downhill to the dismissal point, which is why we have urged in the brief and why the Seventh Circuit was concerned as was the Sixth about this jury trial implication --
06-484 +++$+++ 51172 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, and so I think we have to reach it, because it can't possibly be you would instruct the jury you need a strong inference, and it couldn't possibly be that a predominance standard if imported into the pleading would always mean a strong inference. You see, that's -- that's the dilemma. And I don't see how to remain true to the words of the statute which are strong inference, without actually producing a dichotomy. And so either Congress can do it or it can't, and -- and -- and that's -- and we could fudge it by just, you know, avoiding it at this moment. But I don't --
06-484 +++$+++ 51173 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Miller, suppose Congress set up a entirely separate cause of action. It's caused -- it's called a discovery cause of action, okay? And it sets forth as the condition for pursuing that cause of action a standard that your, your allegation has to be indeed clear and convincing. Okay? And then if you win that, you can take whatever you get out of the discovery and bring a lawsuit. Would that be unconstitutional?
06-484 +++$+++ 51174 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Why do I feel wind whipping past my ears as I go through a trap door? (Laughter.)
06-484 +++$+++ 51175 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Ironically, ironically, I think I have to say if Congress, leaving to one side justiciability problems with the discovery cause of action, if Congress created a discovery cause of action it could ascribe to it whatever incidents it wanted to --
06-484 +++$+++ 51176 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Surely it could prohibit discovery altogether which it did before they adopt in 1938.
06-484 +++$+++ 51177 +++$+++ TRUE +++$+++ MR. MILLER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct. And I don't think anybody seriously argues that discovery is a constitutional right. The jury trial implications of this new cause of action are interesting. This Court has protected post-1791 statutory claims and their right to jury trial, but you're positing one that wasn't known in 1791, and maybe it could be done without a jury. That's really a hypothetical.
06-484 +++$+++ 51178 +++$+++ TRUE +++$+++ THE COURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Miller. Mr. Phillips, you have four minutes remaining.
06-484 +++$+++ 51180 +++$+++ FALSE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice. I have to confess I'm -- I'm slightly perplexed by exactly what the Respondent's position is in this case so I'm inclined to kind of go back to the core points that have been raised by the questions from -- from the Court. And in the first instance, it seems to me quite clear that the Seventh Circuit did not apply the strong inference standard. If -- you can compare the language from the First Circuit circuit that specifically says it has to be reasonable and strong, strong has completely fallen out here. I don't see any way to read it the other way. I think in response to Justice Breyer's question, which is how do, how should you write the opinion, I think the meaningful way to write the opinion is to be respectful of Justice Scalia's desire to provide guidance. So I do think you should say, you have to, as Justice Alito said, review the entirety of the document and -- and infer both positively and negatively as you go forward. We know that has to be true. Almost every court that's dealt with these issues --
06-484 +++$+++ 51181 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But then you're doing away with reading the allegations in the light most favorable to the plaintiff.
06-484 +++$+++ 51182 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely. Absolutely, Justice Ginsburg. There's no question that that's -- that that's what Congress had to have meant under these circumstances. And the best example of that is the CEO who sells securities during the time period of the class action. There are dozens of cases in which that happens. Does it create an inference of scienter? It might, because it's quite possible that he sold and -- he lied about the stock in order to keep the price up to sell. It is also possible that he sells only about 1 percent of the stock --
06-484 +++$+++ 51183 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But Mr. Phillips, you don't look at these things one at a time. You look at them altogether.
06-484 +++$+++ 51184 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that is --
06-484 +++$+++ 51185 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is the statute all you had?
06-484 +++$+++ 51186 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Ginsburg, I couldn't disagree with you more about that. That is precisely what Congress says when -- when it says with particularity. And when Congress says you have to look at each defendant. You cannot do --
06-484 +++$+++ 51187 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It says you must plead the facts with particularity.
06-484 +++$+++ 51188 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
06-484 +++$+++ 51189 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But when one judges the adequacy of the complaint, one looks at all the facts pleaded with particularity, not just one.
06-484 +++$+++ 51190 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the strong inference of scienter is not pled on a group basis. It has to be pled with respect to each individual defendant. So it's quite convenient --
06-484 +++$+++ 51191 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, I think that this case was a good example. There were two defendants and the court of appeals --
06-484 +++$+++ 51192 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there were a lot more than that.
06-484 +++$+++ 51193 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, to take the two that were at issue in this opinion. The court of appeals said the CEO, yeah, there's enough there to get over that threshold. The other guy, no, there wasn't. So it's not that she's saying what you find for one, you find for all. She is going at it defendant by defendant.
06-484 +++$+++ 51194 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I -- I mean, I was commenting primarily on Professor Miller's decision to just sort of sweep everything in and say look, back in 1999 and 2000 when the Seventh Circuit itself specifically said that the knowledge, for instance, of the 5500 decline didn't happen until March of 2001. So I was just saying you can't start sweeping everything in. But -- and it is true, the court distinguished between those two individuals; but the bottom line remains the same. You have to analyze them, each. And you have to take into account contending inferences. You have to construe ambiguity contrary to the plaintiff sometimes --
06-484 +++$+++ 51195 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What do you do with a report that you know exists because you had one of these 26 confidential people tell you? But you haven't seen the report, so you don't have the date on it? And you won't know that date unless you have access to discovery. Do you have to assume the date is later rather than sooner?
06-484 +++$+++ 51196 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think you better make an allegation with particularity that that date was at a time when the individual would know that the -- that the information that he was conveying was -- was wrong. I don't see how you can infer strongly --
06-484 +++$+++ 51197 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But you -- if the plaintiff --
06-484 +++$+++ 51198 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- scienter otherwise.
06-484 +++$+++ 51199 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The plaintiff can't know for sure without seeing the document with a date on it.
06-484 +++$+++ 51200 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the plaintiff can ask the confidential informant as much as, as he wants about the information; and if he can't come up with it, that's the price you pay. That was exactly what Congress said, is if you cannot make those particular allegations, then you're out of luck. And it's not as though they give you one shot for this.
06-484 +++$+++ 51201 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Congress -- Congress used words, "strong inference." Those words are not self-defining. One can think of several ways, in fact the courts of appeals did think of several ways. Why should we pick your way as opposed to the other ways one might define them?
06-484 +++$+++ 51202 +++$+++ TRUE +++$+++ MR. PHILLIPS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I could be flip to say it's the right way. But I think the -- I mean the answer to the, the answer to why to choose our approach is because it is consistent with Matsushita and Monsanto and it will allow, Justice Breyer, to apply it in an individualized way, in a fashion that will give guidance to the lower courts. Thank you.
06-484 +++$+++ 51203 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Phillips. The case is submitted.
06-5247 +++$+++ 51208 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument this morning in case 06-5247, Fry versus Pliler. Mr. Haltom.
06-5247 +++$+++ 51210 +++$+++ FALSE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The constitutional error that occurred in Mr. Fry's third trial is the type of error that can result in a conviction of an innocent person. Notwithstanding the nature of the error that occurred in Mr. Fry's trial, no court has reviewed the effect of that error or evaluated the effect of that error under the constitutionally mandated Chapman standard. Mr. Fry's position is simply that he is entitled to one bite at the Chapman apple. In the California Court of Appeals, that State appellate court should have, but did not, rectify the constitutional trial error that occurred in this case. Had that court complied with this Court's precedent, that court would have first identified the constitutional error that occurred at trial, namely the chambers error, and second, reviewed the effect of that error, assessed the effect of that error under the Chapman test. The failure of that court to do so, the unreasonable decision-making of that court, relegated Mr. Fry to seeking relief in Federal habeas proceedings. It scarcely seems reasonable --
06-5247 +++$+++ 51211 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I suppose he could have come here on direct.
06-5247 +++$+++ 51212 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He could have, Your Honor, however, he didn't have the right to counsel to come following his appeal to the State appellate court, and then after the denial of his petition, it would be a discretionary review in the California Supreme Court, he no longer had the right to counsel. And the fact of the matter is if he had filed a petition for writ of certiorari following that, it would have effectively been asking at that stage for a type of error correction. It scarcely seems logical that the scope of the remedy to which Mr. Fry is entitled for the constitutional violation that he suffered, that that should be curtailed based upon simply the unreasonable decision-making of the State appellate court in the --
06-5247 +++$+++ 51213 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if we're talking about what -- where is the logic in the result that I believe you're position produces, which is that a prisoner who loses in the State court on harmlessness grounds, because the State court finds it's harmless, obtains no habeas relief in Federal court unless the error actually prejudiced him. Whereas if the State court never reached the harmlessness ground, and erred on -- or ruled on whether the violation occurred, whether there was any constitutional violation, then he would obtain relief if there is merely a reasonable probability of harm. Now, you know, why would there -- what does he care whether -- whether the error below consisted in an erroneous harmlessness determination or an erroneous determination that there was no violation? Why should there be a different standard of review between the two?
06-5247 +++$+++ 51214 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Scalia, that's the point raised in the Solicitor General's amicus brief here. And in Mr. Fry's case, what happened was that there was a harmless error analysis conducted, albeit truncated, by the State appellate court. But it was not a Chapman analysis. And that failure of the State appellate court to engage in a Chapman analysis is contrary to this Court's precedent. It ignores Chapman, it also would be an attack on --
06-5247 +++$+++ 51215 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Let's assume another violation, the court erroneously determines -- erroneously -- that there was no constitutional violation at all. Its error is not with regard to the harmlessness, but with regard to whether there was a constitutional violation. Why should there be one standard of review for one error and a different standard of review for the other, regardless of whether the State court conducted Chapman or not?
06-5247 +++$+++ 51216 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know that necessarily there has to be one standard of review for the other -- for one or the other, Your Honor. Our position in this case is simply following the logic of this Court's decision in Mitchell versus Esparza, that this Court or any Federal habeas court needs to consider what the State appellate court did. You cannot divorce -- there is the underlying constitutional violation that occurred in Mr. Fry's trial. Then that error is compounded when a State appellate court fails to assess the effect of that error under the Chapman standard.
06-5247 +++$+++ 51217 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You could say the same thing when the State court has erroneously determined that there was no violation. In that case, you apply the Kotteakos standard. I just don't understand the rationale of applying a higher standard to the other error.
06-5247 +++$+++ 51218 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
06-5247 +++$+++ 51219 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought the State court didn't find that there was error. I thought the State court said, this was cumulative, I'm not going to let it in.
06-5247 +++$+++ 51220 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
06-5247 +++$+++ 51221 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It wasn't until we got into the Federal court that there was an error found. As far as the State was concerned, there was no reason to engage in any kind of harmless error review, Chapman or not, because there was no error.
06-5247 +++$+++ 51222 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. That's in pages 94 to 97 of the joint appendix. The State appellate court concluded there was no error as a matter of State law in this case. The court also concluded that there was no constitutional error. Then in a footnote, footnote 17 on page 97 of the Joint Appendix, the State appellate court stated in the alternative, effectively, there was no prejudice that Mr. Fry possibly could have suffered in this case. However, in making that alternative holding, the State appellate court, the California court, was applying what's known as the Watson standard, which as this Court has repeatedly recognized, is the functional equivalent of the Kotteakos type standard.
06-5247 +++$+++ 51223 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And it is that determination that you are objecting to here. The harmlessness determination.
06-5247 +++$+++ 51224 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I am, Your Honor. Obviously, we are objecting to the State court's finding of no underlying substantive constitutional violation, as well as the State court's determination that there was no --
06-5247 +++$+++ 51225 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But for the former, you are perfectly content with our applying Kotteakos. And for the latter, however, you say we have to apply Chapman. I just don't see the logic of that.
06-5247 +++$+++ 51226 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first of all, this case, since it has now been determined in the Federal courts that there was an underlying constitutional violation, does not present that question. We do -- and I understand the position that you are raising, Justice Scalia, that there is a potential split in the logic there. I don't think the Court has to resolve that here. Some of the lower Federal courts have determined that now, in light of AEDPA, the Brecht standard has been completely supplanted. Some courts have construed this Court's decision in Mitchell versus is Esparza to lead to that conclusion. And that may very well be the case. However, I don't think the Court needs to ultimately address that proposition in this case.
06-5247 +++$+++ 51227 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ As I read the Court's opinion in Brecht, the Brecht standard on harmlessness is based on the structural consideration that your under collateral review at that point, rather than under direct review. You would apply a different harmlessness standard that doesn't seem to take into account the fact that it's collateral review rather than direct.
06-5247 +++$+++ 51228 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly, Mr. Chief Justice, collateral review, as this Court pointed out in Brecht, can result in a more deferential standard of harmless error inquiry. The -- those considerations that led this Court in Brecht to adopt Kotteakos rather than Chapman apply across-the-board in all habeas cases. However, a central theme of the Brecht decision was that there have been Chapman analysis conducted by the State appellate judiciary --
06-5247 +++$+++ 51229 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I guess that's where maybe we -- is the subject of debate, whether the central theme in Brecht was, this is collateral review, and that calls for a different standard, or whether the central theme was Chapman review had been undertaken, and therefore, that calls for a different standard. I'm not sure I agree with you that the latter is the case.
06-5247 +++$+++ 51230 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree that it could be -- it is a debatable point. But the -- to ignore the circumstance that this Court stressed, I think undoubtedly stressed in Brecht that there had been that State appellate review is to basically divorce the holding in Brecht from the factual context in which that case -- or out of which that case arose.
06-5247 +++$+++ 51231 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The dissenters certainly thought that that was the consequence, the dissenters in Brecht. They said that Kotteakos would apply even where the State court has found that "no violation has occurred."
06-5247 +++$+++ 51232 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's true, Justice Scalia.
06-5247 +++$+++ 51233 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In other words, never approached the harmlessness thing. That's what the dissenters thought.
06-5247 +++$+++ 51234 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The dissenters thought that the import of Brecht was that it was going to apply across-the-board in Federal habeas --
06-5247 +++$+++ 51235 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And I don't think the majority said the contrary. I mean, I wrote it. I mean, I don't know -- what counts is what I wrote, not what I thought. But if you read it, I don't think it decides this question. What I wonder, though, is why does the -- how does this case present the issue you want to argue? I'm -- Justice Ginsburg made me wonder about that. As I understand it, the trial court said, I'm not going to let this witness testify, it is cumulative. All right. And then the appeals court said, well, that wasn't a mistake. And one reason it wasn't a mistake is that this witness added nothing. There could no possible prejudice, says the trial court, when he excluded that person. That means it was cumulative, that means it did nothing, and that was the appeals court. So the appeals court finds no error. Now, we get over to the Federal court. And they say, oh, no, this witness added a lot. Well, they couldn't have thought this witness added a lot to the point where the constitution is violated unless they disagreed with that decision of making no possible difference. Very well. We disagree, send it back. End of case. Now, where does it raise all this stuff about harmless error and -- I mean, when I -- it is hard for me to get my mind around this issue, because it's so complicated. How does this case raise it?
06-5247 +++$+++ 51236 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I suppose, Your Honor, because of the fact that the State appellate court didn't simply state, we find no error, and leave it at that, but rather, the State appellate court also raised the point that, in a footnote, in a truncated manner, that there is no possible --
06-5247 +++$+++ 51237 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Was that as a reason for there not being error? Or was it in the context of saying, well, even if there was a mistake, there was no possible prejudice. What does the footnote mean, in your opinion? The second?
06-5247 +++$+++ 51238 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
06-5247 +++$+++ 51239 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is the footnote number?
06-5247 +++$+++ 51240 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's footnote 17.
06-5247 +++$+++ 51241 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Okay. I'll read it.
06-5247 +++$+++ 51242 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Page what?
06-5247 +++$+++ 51243 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's 97 in the Joint Appendix, Your Honor.
06-5247 +++$+++ 51244 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you.
06-5247 +++$+++ 51245 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you. Very helpful. The other thing which I brought up, so I might as well get both my questions out, is that years ago I read a decision by Judge Leventhal that made a big impression on me. And he was a very good judge. It's in a different context, it's the same problem. He said, I originally thought this was the case dreamed of by law professors, a case where I could conscientiously say, although I consider the findings clearly erroneous, so I'd reverse if it were a judge's decision, nonetheless, there is support and substantial evidence. And therefore, I affirm it, because it comes from an agency. But when I think about it, I don't think there's substantial evidence either. Okay. In other words, has there ever been a case in the history of mankind where you think a judge has actually thought to himself, after reviewing the record, oh, I think that this is harmless, so I'll affirm. But I don't think it's harmless beyond a reasonable doubt, so I'll reverse. I mean, I find it very difficult to get myself in that state of mind, where I think such a thing is possible.
06-5247 +++$+++ 51246 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree with you, Your Honor. It's angels on the pin of a needle, I guess is the phrase here, and this case may be a case where the difference between Chapman and Brecht could be of consequence. If you'd look at the district court's treatment of this case, at the district court level the court stated: "Mr. Fry comes close to demonstrating actionable error," and that court is applying the Brecht standard. The district court states: "I cannot rule out prejudice in this case." So seemingly had that court applied Chapman, Mr. Fry would have prevailed in the district court. Likewise, in the Ninth Circuit we have the dissenting justice concluding that there is prejudice even under the Brecht standard, and then we have the panel majority in ruling against Mr. Fry on the prejudice issue stating that had Pamela Maples' testimony been admitted that would have substantially bolstered Mr. Fry's claim of independence. That statement seems inconsistent with the finding that it is harmless error under Brecht; and even if it's not inconsistent it seems that had that court been applying the Chapman standard, that court would have ruled in Mr. Fry's --
06-5247 +++$+++ 51247 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If I could come back to, may I ask this question: Is part of your argument that even under the Brecht standard it was not harmless?
06-5247 +++$+++ 51248 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
06-5247 +++$+++ 51249 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This is a case, am I correct, where there were two, two hung juries and then a five-week deliberation in this case? And there was a harmless -- and the testimony of Maples was she had seen a guy who didn't fit the description do the killing?
06-5247 +++$+++ 51250 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct, Your Honor.
06-5247 +++$+++ 51251 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where is that in the question presented?
06-5247 +++$+++ 51252 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It says that if the Brecht standard applies, does the Petitioner or the State bear the burden? I guess that's the narrower question, who has the burden.
06-5247 +++$+++ 51253 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the Respondent has essentially conceded that under O'Neal that they bear the risk of non-persuasion.
06-5247 +++$+++ 51254 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But O'Neal, I thought O'Neal just says that this word "burden of proof" is out of place when you talk about an appellate judge reading the record.
06-5247 +++$+++ 51255 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that that was what the holding in the majority opinion was, but I think, as Justice Thomas pointed out in his dissenting opinion, the effect of that is to allocate the risk of non-persuasion to the State. And so I think that that's -- I could be wrong, but it seems to me a semantic point. And to Justice Stevens' question, as you pointed out in your concurrence in Brecht, the Kotteakos standard which this court adopted in Brecht is an exacting standard. And in applying that standard, if you'd look at this case, the Court's decisions, Sullivan, Kotteakos, say that the focus has to be on the jury. Here we have a jury in the third trial that deliberated for 23 court days after 29 court days --
06-5247 +++$+++ 51256 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're now arguing that under Brecht this should not have been harmless; is that the point you're making?
06-5247 +++$+++ 51257 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
06-5247 +++$+++ 51258 +++$+++ TRUE +++$+++ THE COURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay. Now, I didn't hear the answer to my question. I'm not sure that is in the question that you presented and on which we granted cert. It says which standard applies, who bears the burden. I don't see anything saying is this -- was it erroneous to conclude that this was harmless under Brecht.
06-5247 +++$+++ 51259 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I believe, number one, does it matter which standard applies as part of the question presented? Does it matter which harmless error standard is implied? My answer to that is no, because Mr. Fry prevails under either Brecht or Chapman. And this Court could in this case simply decide this case on that very narrow question, like many court do where this issue is raised, this intellectually challenging issue of what should a habeas court apply, Brecht or Chapman, when there has been no Chapman analysis in the State court or when there has been an objectively unreasonable Chapman analysis in the State court. Most courts confronted with that issue say, we don't need to decide the question here because either the error was plainly harmless under both of those standards or plainly not harmless under both of these standards. And I simply recounted the history of the litigation below in the Federal courts to point out that this could be a case where that make a difference. It seems like --
06-5247 +++$+++ 51260 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The trouble with reading that second question that way is that, you know, it follows from your first question, which speaks in the generality of cases. It's not speaking to this case. Your first question presented is, if constitutional error in a State trial is not recognized by the judiciary until the case ends up in Federal court, is the prejudicial impact assessed under the standard set forth in Chapman or in Brecht? That's the first question. Very generalized. Second question: Does it matter which harmless-error standard is employed? I didn't take that to mean does it matter in this case which of the two. I thought it meant, you know, is there any difference between the two standards? Don't you think that's fair reading of it.
06-5247 +++$+++ 51261 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor.
06-5247 +++$+++ 51262 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You think it means, does it matter in this case which harmless -- you think that second sentence means would, would the defendant be entitled to reversal of the conviction no matter which harmless error standard is employed? You think that's what it means?
06-5247 +++$+++ 51263 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that that is the import of that portion of the question.
06-5247 +++$+++ 51264 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is that a question on which we would be likely to grant cert?
06-5247 +++$+++ 51265 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Perhaps not if that was the only question in and of itself, but perhaps so because, as I indicated before, as Justice Stevens stressed in his concurring opinion in Brecht, the Kotteakos standard is a demanding standard. And look at this case. If the error in this case can be deemed harmless under any standard, then what cannot? What is prejudice when you're looking at the jury and when you have a jury where nine days into the deliberations at least five of them voted that Mr. Fry was not guilty. They told the judge that they were at an impasse. This jury struggled mightily with this evidence.
06-5247 +++$+++ 51266 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you help me with one thing I'm not terribly clear about, though. Is it clear which -- what side the magistrate thought had the burden of persuasion?
06-5247 +++$+++ 51267 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is not, and it seems as though, looking at the language that the magistrate judge utilized in his findings and recommendations, that he was looking to me, to Mr. Fry, to meet that burden. And I quoted his language in my brief and to the Ninth Circuit and I argued to the Ninth Circuit that the burden of persuasion had been improperly allocated to Mr. Fry. However, that issue was simply not addressed in the Ninth Circuit's opinion.
06-5247 +++$+++ 51268 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Does your opponent now concede that the State has the burden?
06-5247 +++$+++ 51269 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Respondent concedes that their burden -- that it's their burden --
06-5247 +++$+++ 51270 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How do they say that after I thought I wrote an opinion for the majority of the Court which said this concept is not applicable in -- when you're reviewing a record for harmless error. It's not a question of presenting evidence. What I think it said is that it's not a question of presentation of evidence. In such a case, we think it's conceptually clear for the judge to ask directly, do I the judge think that the error substantially influenced the judge's -- the jury's decision? Now, maybe I was wrong, but I think there was a majority of the Court that agreed with it.
06-5247 +++$+++ 51271 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor. And I think your point, as I understood it, in O'Neal was that it analytically does not make sense --
06-5247 +++$+++ 51272 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ To talk about burdens of proof?
06-5247 +++$+++ 51273 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- when the appellate court is --
06-5247 +++$+++ 51274 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. But that's my basic question in this case and it's a serious question. Suppose I think, which I do think, that I as a judge can conscientiously review a record and decide for myself whether I think this error of the judge was harmless, and if I really try I can bring myself to understand this question. Regardless of what I think, could another judge, say a State judge, reasonably have thought the opposite? I can do that mentally. You try to get me to make more fine distinctions than that, I cannot do it. I can't. I'm sorry. I admit it. Now, if that's the state of mind that I can get myself into -- and I believe that's true of many judges -- how do I write words that are realistic in this area?
06-5247 +++$+++ 51275 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that that's a question, Your Honor, that this court has struggled with. As Justice Scalia pointed out in his concurring opinion in Dominguez Benitez, that we're talking about with these harmless error standards ineffable gradations of probability that are beyond even the judicial mind to grasp. But I think if we just tie it to the facts of this case, I think that in the explanation you just gave that there is no reasonable judge who could look at this case and conclude --
06-5247 +++$+++ 51276 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There are many situations in which an appellate court has to apply a legal standard to facts in criminal cases and civil cases. In a criminal case, an issue on appeal could be whether there's sufficient evidence to support the verdict. Do you think there's a burden of persuasion on appeal on all of those issues?
06-5247 +++$+++ 51277 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With respect to a standard sufficiency analysis, no, Justice Alito. It's just a question for the appellate judge to discern, was there sufficient evidence in the record reviewing the evidence in the light most favorable to the prosecution.
06-5247 +++$+++ 51278 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What's the difference between that and applying any harmless error standard? It's exactly the same kind of analysis. It's a different legal test, but you're applying, you're applying the law to facts.
06-5247 +++$+++ 51279 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree. And I don't quarrel at all with the way that the court described -- said that looking at the prejudice inquiry or a harmless error inquiry in the O'Neal case, that it doesn't fit to look at it in terms of the allocation of burden. I don't think that this case ultimately turns on that, except to the extent that the magistrate judge when he wrote his finding and recommendations that were adopted by the district court judge did state that he was looking to Mr. Fry to make the sufficient showing --
06-5247 +++$+++ 51280 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Are you talking about what's on the bottom of page 181 of the joint appendix? That was the only place that I found where the magistrate expressed a view on this. It reads: "The court does not find that there has been" -- "the court does find that there has been an insufficient showing. So that "insufficient showing" means showing by the Petitioner." Is that what you're relying on?
06-5247 +++$+++ 51281 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. That's exactly what I'm relying on, Your Honor. So, going back to specifically the facts of this case, this Court could, as I indicated earlier, without regard to the thorny Chapman versus Brecht question, decide this case solely in terms of, under Brecht, does Mr. Fry prevail; and we look at the nature of the constitutional violation that occurred.
06-5247 +++$+++ 51282 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That wouldn't help us resolve the conflict in the circuits between which standard is applicable, though, right?
06-5247 +++$+++ 51283 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it certainly would not, Your Honor. And this Court may very well deem that to be necessary. But I think also that this Court fashioning a decision which is faithful to the requirement that -- or the principle that Kotteakos is an exacting standard, would also be an important constitutional principle. In a case like this, where there has been no Chapman review and where the Chapman court stated that we need a rigorous harmless error standard in order to safeguard convictions, safeguard against erroneous convictions where there is a close question of guilt or innocence, that hasn't happened in this case and it would be appropriate for this Court to fashion a rule or holding in this case that would ensure that that happens.
06-5247 +++$+++ 51284 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And that would put 2254 out of sync with 2255, where I understand if it's a Federal conviction then it's always Brecht on post-conviction relief?
06-5247 +++$+++ 51285 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As I understand that question, the Solicitor General pointed out in the introduction of its amicus brief that there are some 2255 cases where there's been an intervening change in the law which could involve this question of Brecht versus Chapman. And I've cited in my brief a district court case, United States versus Monsanto, where the court concluded, in accordance with the position that I'm advocating, that it makes no sense for a reviewing court in a habeas proceeding to apply the Brecht standard blindly without regard to what was done in prior proceedings, but rather there's no need for deference, where the -- the big issue in Brecht, as I understand it, was this Court was concerned about simply repeating a harmless error analysis that the State court had already done; and we're not asking this Court to do that in this case. The same concern, Justice Ginsburg, holds over in certain limited 2255 cases. If I may save the balance of my time.
06-5247 +++$+++ 51286 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Haltom. Mr. Moody.
06-5247 +++$+++ 51288 +++$+++ FALSE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: Federal habeas is limited in scope and purpose. It is not a continuation of the appellate process. Rather, it is an extraordinary remedy limited by fundamental concepts of federalism, comity, and State sovereignty. In Brecht, this court held that the stringent Chapman standard was inappropriate for use on collateral review. Instead, in order to strike a proper balance between State and Federal interests, the actual prejudice standard of substantial and injurious effect on the verdict should be used in collateral cases. Petitioner is asking for an exception to this rule. He claims that if he did not receive Chapman review in State court, he should receive it on Federal habeas. That was not the rule in Brecht and it should not be adopted by this Court here. The Brecht decision did not state an exception based on the State standard used. The key in Brecht was that appropriate balance between the Federal Government and the State. This Court has never treated cases where there was not a state Chapman finding differently from other cases. It applies Brecht throughout. In the Penry case and in the O'Neal case there was no Chapman finding in state court, yet this Court applied Brecht and made no comment about that.
06-5247 +++$+++ 51289 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You said in your brief that the remedy, if the Petitioner wants to assure he's going to get Chapman review someplace, then he should have sought cert -- direct review from the State court's conviction. Did you say that?
06-5247 +++$+++ 51290 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
06-5247 +++$+++ 51291 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But realistically, the likelihood that such a petition would be successful, passing the problem that the Petitioner is not likely to have a lawyer, does the likelihood that this Court would grant cert on such a question is very slim.
06-5247 +++$+++ 51292 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree, the likelihood of the cert grant in that circumstance is slim but it does not change the fact that once you come to court under 2254, you are asking for collateral review. And in collateral review, it's inappropriate to apply the Chapman standard.
06-5247 +++$+++ 51293 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I suppose you could say that of all the questions that go into habeas under 2254, that they could have brought up directly but the chances are their being taken here are negligible?
06-5247 +++$+++ 51294 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I, I agree with that, Your Honor.
06-5247 +++$+++ 51295 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Counsel, if the State court had conducted a Chapman review, erroneously, how would that be reviewed under Federal habeas? You would ask under AEDPA whether it was an unreasonable application of Chapman?
06-5247 +++$+++ 51296 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. First you would ask if it was an unreasonable application of Chapman. If you found that it was not, then the case is over, there's no need to grant the writ. If you found that it was, you would proceed and do a Brecht analysis. And that's what we learned from --
06-5247 +++$+++ 51297 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That seems awfully refined, doesn't it, to do two different analyses? Is this an -- is this an unreasonable application of Chapman? And then apply the Brecht standard after determining that it was an unreasonable application of Chapman?
06-5247 +++$+++ 51298 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't disagree. I'm merely trying to make sense of the various decisions in this, in this arena. There's some tension between the Esparza decision and other decisions of the Court; and one has to find a place for AEDPA standard. So we would not object to simply an application of Brecht which is what this Court has always done. But as far as it seems to suggest there may be an interim step.
06-5247 +++$+++ 51299 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Suppose we apply Brecht. This is what I'm having to little trouble with but I'd appreciate your commenting or straightening this out. The Ninth Circuit holds two things according to the SG in the briefs. He states them very well. The first is let's look at this witness. The testimony was excluded. Now the Ninth Circuit says that exclusion was unreasonable of -- an unreasonable application of clearly established Federal law, because that testimony of the witness that was excluded was not only material, it would have substantially bolstered the claim of innocence. So that's their finding on the merits. Then they go on to say, but the exclusion was harmless. How could both those things be true? How could it be true that the reason that there was error in excluding it was that the evidence is so important that it substantially bolsters the claim of innocence? That's one thing they say. But the exclusion was harmless. I just fail to understand how anyone could think both those things. But maybe in the context of the case it was possible, but that's what I'd appreciate your explaining.
06-5247 +++$+++ 51300 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that the explanation is as follows. When you're analyzing the denial of a defense type of evidence, a Chambers claim, you first look to see how it fit into the defense. And that is what they were doing. You're not looking at the entire case. You're looking only at the defense. And so in the sense that something is better than nothing, adding a twelfth witness instead of eleven may improve the defense case. And yet nonetheless, when you move to the next question, which is, was there a substantial and injurious effect on the verdict in the case, and now you're not just looking at the defense, you're looking at everything that was available to the jury -- it may be that there was still so much other evidence that it could overcome whatever increase you received on the defense.
06-5247 +++$+++ 51301 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why is it necessary for us to try to reconcile those two statements? The Ninth Circuit may well have been wrong in finding that there was a violation at all, but we have to assume that, for purposes of the question that's presented to us. So why shouldn't we just analyze the harmless error question independently of what they said about whether there was a Chambers violation?
06-5247 +++$+++ 51302 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We would not object to that. I'm trying to -- I'm trying to assist Justice Breyer in that perceived imbalance between a finding of a substance above and then a finding of harmless error before.
06-5247 +++$+++ 51303 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, every time evidence is excluded on the grounds that it is cumulative, or is the equivalent of a 403 balancing in Federal Court, there's not a constitutional error under Chambers and related cases, is there?
06-5247 +++$+++ 51304 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. We agree. That's certainly the law of this Court. And in this, in -- well, let me move on. I'd like to make a couple of other points.
06-5247 +++$+++ 51305 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I go just back to Justice Breyer's question for a second?
06-5247 +++$+++ 51306 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure.
06-5247 +++$+++ 51307 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I mean, I think your answer to Justice Breyer was a very good answer as a, as sort of a general statement. But in -- would you agree that in this case, if we -- if we do proceed, number one, to agree with you that Brecht is the standard, and we then do proceed to apply Brecht here or to determine whether Brecht was properly applied here, that in this particular case, the, the record indicates that the case was so close that there would have to be a finding of harmful error, or at least it would be impossible to find harmless error. Even applying Brecht clear. And you know what I'm getting at. I mean, five weeks of deliberation. The question after, whatever it was, two weeks, and four ballots, and so on. Obviously this -- this case was just to tottering on the edge. So even if we, if we do get to the point of applying Brecht, wouldn't it be impossible to say that he's -- he gets no relief under Brecht?
06-5247 +++$+++ 51308 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I would disagree with that. You've the sixth court to hear this case. The prior five have all rejected his claim. And while --
06-5247 +++$+++ 51309 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But two or three of those did it on an improper ground, that you agree with now, don't you?
06-5247 +++$+++ 51310 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't agree with that.
06-5247 +++$+++ 51311 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ For purposes of argument.
06-5247 +++$+++ 51312 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For purposes of argument I do. The district court and the Ninth Circuit both applied Brecht and found that this was not an error which --
06-5247 +++$+++ 51313 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It was two to one in the Ninth Circuit.
06-5247 +++$+++ 51314 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This is true.
06-5247 +++$+++ 51315 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Judge Rawlinson I think said that using the Brecht standard, that there was actual prejudice.
06-5247 +++$+++ 51316 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, she did. There was a dissent in the Ninth Circuit.
06-5247 +++$+++ 51317 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't this the -- I may have it wrong -- but isn't this the case in which the witness was unique not cumulative because she was the only one who was completely disinterested.
06-5247 +++$+++ 51318 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I would disagree with that. She's been characterized that way. But, and I want to point out that, I would like to clarify the record in response to your question, Justice Stevens. You asked whether or not she saw another man commit the murder. And counsel appeared to agree with you. That was not her testimony. Her testimony was that she overheard someone else confessing to murders that may or may not have been these murders. And the -- and this was a very long case. This case lasted eleven weeks, it involved a hundred witnesses. You can look at the opinions it produced in state court and in the district court. They're each 100 pages long. It's not unreasonable to expect the jury to take a long time to decide that case. Now there are 25 court days of deliberations --
06-5247 +++$+++ 51319 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Five, five weeks?
06-5247 +++$+++ 51320 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Five weeks, 25 court days, 24 of which were taken up with read back. Several -- several holidays. I mean if you want to go through and look at it, now --
06-5247 +++$+++ 51321 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you know of any other case in which the jury deliberated for five weeks?
06-5247 +++$+++ 51322 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I haven't attempted to find one. It is a long deliberation.
06-5247 +++$+++ 51323 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm sure there's an example somewhere, but I -- I practiced law for over 40 years, and I never heard of it.
06-5247 +++$+++ 51324 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ At what point, how many weeks had gone by when they said they were hung?
06-5247 +++$+++ 51325 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I believe that was -- I keep, I've been switching back and forth between calendar days and court days. So forgive me. I believe that was on the eighth court day. And at that point, when they announced they were hung, they selected a new foreperson and then rolled up their sleeves and went back in and deliberated the case.
06-5247 +++$+++ 51326 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So --
06-5247 +++$+++ 51327 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And after --
06-5247 +++$+++ 51328 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Go ahead.
06-5247 +++$+++ 51329 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ After they selected the new foreperson, they asked for 15 read backs, including the crucial evidence in the case. The ballistics experts. They asked for that. They asked for the testimony of the in-custody witness who heard the confession of Mr. Fry. They asked for Mr. Fry's testimony.
06-5247 +++$+++ 51330 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did they ask for a read back of Mrs. Maples' testimony?
06-5247 +++$+++ 51331 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Mrs. Maples' testimony was not admitted. It was excluded.
06-5247 +++$+++ 51332 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Oh, that's right. Of course.
06-5247 +++$+++ 51333 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But they did not -- significantly they did not ask for read back of the witnesses who testified similarly to, to Ms. Maples. The third party culpability case was basically not credited by the jury. They did not a read back of those witnesses.
06-5247 +++$+++ 51334 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, maybe, maybe you'd end up --
06-5247 +++$+++ 51335 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, maybe a critical witness was left out. That argues the other way, I think.
06-5247 +++$+++ 51336 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would encourage the Court to carefully look at what Ms. Maples was going to say. If you look in her own words, and I'm quoting: I was just in and out of the room. I just listened to bits and pieces of it. And that's at joint appendix 10. This, this witness may have been Mr. Hurtz's cousin, and not his ex-girlfriend, or his ex-girlfriend's mother, but she did not have very much to say about this. She said she didn't hear the beginning of the statement. She could not tell you whether it was a serious discussion. She was in and out of the room. She heard only bits and pieces.
06-5247 +++$+++ 51337 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But what she heard was that they were going to kill, this other person was going to kill a man and a woman, and it turned out that that was the crime at issue.
06-5247 +++$+++ 51338 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ With respect, that's not what she heard.
06-5247 +++$+++ 51339 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What did she hear?
06-5247 +++$+++ 51340 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What she heard was a statement that he had killed a man and a woman. And this was not immediately after the offense. This is 18 months after the offense, this is not next day.
06-5247 +++$+++ 51341 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Do you think -- do you think, do you think I should do this? I'm still looking, I'm worried about on the one hand, as you are, having this Court announce too many six-part tests, and having a lot of words and it becomes easy to make a mistake for a judge and then you never finish a proceeding. I'm worried about that, as are you.
06-5247 +++$+++ 51342 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
06-5247 +++$+++ 51343 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ At the same time, I think what counts is what the judge does, the reviewing judge. Not what -- quite what the test says. So there has to be a conscientious effort to decide, was there -- was it harmless? Could a reasonable jurist in California have concluded the opposite? Okay. So maybe we should do it in this case. We simply try ourselves to go through this record, make that determination to show by example, rather than by trying to find a form of words.
06-5247 +++$+++ 51344 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you don't do it very often. I understand that that's something you could do if you wanted to. I think that this is just a classic case where two courts applied the Brecht standard and reached their conclusions and there's nothing really remarkable about it.
06-5247 +++$+++ 51345 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The third party perpetrator that Maples was going to talk about according to the prosecution's theory, was Hurtz or Hearst?
06-5247 +++$+++ 51346 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Hurtz. Yes.
06-5247 +++$+++ 51347 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And there -- there was a link between Hurtz, there was an acquaintanceship between Hurtz and the victim?
06-5247 +++$+++ 51348 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
06-5247 +++$+++ 51349 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Was that established in other testimony or would that all have come out just only through Maples?
06-5247 +++$+++ 51350 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Actually, I'm thinking about my answer because I was thinking about Borelli. There were three third party culpability, potential targets in this case. And I believe that Hurtz, the testimony of several of the witness who were admitted did testify of a link between Cindy Bell and Hurtz.
06-5247 +++$+++ 51351 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Otherwise, I mean, they couldn't have found it was cumulative if -- if that had not been the case.
06-5247 +++$+++ 51352 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In order to -- I need to correct the record on that as well. The trial judge did not find that this was cumulative. He found a lack of foundation. What happened was, was Ms. Maples was offered as a witness --
06-5247 +++$+++ 51353 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But -- on appellate review in California, they found it cumulative, didn't they?
06-5247 +++$+++ 51354 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The alternative prejudice holding, the footnote 17, they said it would have been cumulative.
06-5247 +++$+++ 51355 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Right. Okay.
06-5247 +++$+++ 51356 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
06-5247 +++$+++ 51357 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And they -- they couldn't have found that if there hadn't been some evidence on Hurtz, apart from Maples?
06-5247 +++$+++ 51358 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Oh, that's right. Yes. There was, and that's really my point. My point is that 11 third party culpability witnesses were allowed to testify in this trial. And one was excluded.
06-5247 +++$+++ 51359 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ How did Hurtz's name enter into the trial?
06-5247 +++$+++ 51360 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well --
06-5247 +++$+++ 51361 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why did anybody mention him?
06-5247 +++$+++ 51362 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, for one thing, he was called to testify and asked if he killed these people. Mr. Hurtz testified at this trial. The jury got to see him, they got to look him in the eye, they got to hear him on direct, they got to hear him on cross. And they did not ask for a read back of that testimony.
06-5247 +++$+++ 51363 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if Maples' testimony had come in, I presume they could have cross-examined him on the basis of Maples' testimony?
06-5247 +++$+++ 51364 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, he stated he never said he killed these people. And he, he stated he'd never said he killed a man and a woman in a car. So it -- it went to what Maples would have said, and also --
06-5247 +++$+++ 51365 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Did he say he'd killed peoples otherwise, or at other times? (Laughter.)
06-5247 +++$+++ 51366 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He also denied doing that.
06-5247 +++$+++ 51367 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, but then at that point in time, Maples, Maples' conviction -- Maples' testimony becomes, assuming there's a foundation, becomes more relevant.
06-5247 +++$+++ 51368 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would disagree, simply because she says she didn't hear the conversation well enough to really give her testimony any true probative value in the case because she was in and out of the room. She didn't hear the beginning. She didn't hear the end. And when she's asked, was it a serious discussion, she says, I don't know. So this could be -- this could be something very different --
06-5247 +++$+++ 51369 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's classic going to the weight of the evidence. That goes to the weight, not the admissibility.
06-5247 +++$+++ 51370 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Ordinarily I would agree with that. And if we knew, Your Honor, that he was speaking about these killings, then certainly it would go to the weight. But since he was speaking about killings that she said she didn't know if they were in California, New Jersey, she didn't know when they occurred, and therefore -- in California we ask that before you present third party culpability evidence you tie it to this crime.
06-5247 +++$+++ 51371 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So we don't assume that he's committed a whole lot of killings, I don't suppose?
06-5247 +++$+++ 51372 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, it's -- he may have committed other killings, but if did not confess to committing these killings then there's no probative value to her testimony.
06-5247 +++$+++ 51373 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Do you think the question of the application of Brecht is included within the questions presented?
06-5247 +++$+++ 51374 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. I briefed it because I was concerned that the Court might reach it, but I don't think it is fairly presented. The only other point that I wanted to make is that if one accepts Petitioner's rule it will basically swallow up the Brecht standard and return to a near wholesale application of Chapman on collateral review. As Tyson and Trigg pointed out, many, many times Petitioners come to court and they have a case where there was no finding of constitutional error in State court and therefore no Chapman application, but they're going to assert that in Federal court. And so if in every one of those cases you apply Chapman, then you really have reduced application of Brecht.
06-5247 +++$+++ 51375 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But on the other side, State courts say, we don't have, we don't have to bother in any case with Chapman because when it goes over into the Federal court they're going to apply Brecht.
06-5247 +++$+++ 51376 +++$+++ TRUE +++$+++ MR. MOODY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think we should assume that the State courts are going to do that. I think that what -- it's sort of like what we said earlier in the argument, Your Honor, where not every evidentiary ruling is a constitutional violation. I would say most of them are not. And this Court has not drawn a bright line of exactly where that is. So in many cases, this is just an erroneous exclusion of evidence at best. And so, therefore, the State court would not be going to a Chapman standard because it would not be finding error. And with that, I'm prepared to submit.
06-5247 +++$+++ 51377 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, counsel. Ms. Millett?
06-5247 +++$+++ 51379 +++$+++ FALSE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The distinction between collateral review and direct review is deeply rooted in the law, and what Petitioner is asking is to have the standard of review for harmlessness in collateral review become the same standard as direct review whenever the courts on direct review got Chapman wrong or unreasonably applied it. That is the exact same argument Mr. Brecht made in this Court. He got Chapman review. They cited Chapman. They didn't cite it here. That's the only difference. Mr. Brecht came to this Court and said they unreasonably applied Chapman review and I should get it again on habeas, and this Court said that there is a deep difference, a deep distinction, between collateral review and direct review and that distinction turns upon the fundamental rule of habeas corpus, and that is not to sit here as the sixth court on direct review of a long record where difficult calls were made. It is to correct fundamental miscarriages of justice, grievous wrongs that have caused custody in violation of constitutional --
06-5247 +++$+++ 51380 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask two questions and then you can proceed. One, do you take a position on who has the burden of persuasion? That's the first question. And do you have an opinion on proper application of Brecht in this case?
06-5247 +++$+++ 51381 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If I can adopt Justice Breyer's language from O'Neal and say that this Court eschewed couching this discussion in terms of burden of persuasion. We accept O'Neal's holding what then there is equipoise, which did not what happened in this case, the tie goes to --
06-5247 +++$+++ 51382 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you do agree if it were in equipoise the State would have the burden?
06-5247 +++$+++ 51383 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The tie would go to the prisoner, yes. Were it in equipoise, because the State would have the burden the State would lose. I don't think that's what happened in this case. I think what Justice Breyer, what this Court said O'Neal said is, the way you articulated it, instead of burden of proof is that it's a level of conviction on the part of the court and what the judge will say in, what the court said in O'Neal, is, do I think the error substantially contributed to the jury's verdict? And that is essentially what the court said here on 181 at the very bottom when it said "The court doesn't find that there's an insufficient showing" -- that's the same way of saying I haven't been persuaded -- that the error contributed to the verdict. So I don't think that this case in any sense could turn upon, whether we call it the burden of persuasion or the proper level of conviction on the part of the court. This court was not persuaded and that is all that matters. When the court is not persuaded and not left in equipoise, the prisoner loses. The second question you asked was whether we have a position on application of Brecht, and we do. We've laid it out in our brief. We think that in no sense does this record support the notion, support the argument, that there was a substantial and injurious effect when the twelfth out of eleven witnesses was excluded, talking about third party culpability. And that requires not just looking at what, in isolation, what evidence was in there about Mr. Hurtz. There was I think six or seven witnesses who said they heard him either say he did it or he was there or he was involved. But it requires looking at the whole record. And there were -- the defense here was not a Hurtz versus Fry. This was a case where the defense did an excellent job. It was a well defended case, and threw up a buffet of options for the jury, none of which it bought on. In the third trial you had what you didn't had in the prior trials. You had ballistics evidence that linked his gun to the crime. You have his own admission, his own testimony, that he left the house that night with the gun, with the bullets, and went out in the truck that was seen at -- a truck of the same type, that was seen at the crime scene.
06-5247 +++$+++ 51384 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I have the same problem Justice Souter does, in all candor. The jury takes five weeks to decide the case and there's a fairly interesting bit of testimony that doesn't get in. And to say to be totally satisfied it didn't have an injurious effect on the deliberations is a close question, I think.
06-5247 +++$+++ 51385 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, two answers. If it's a close question, if AEDPA and if Kotteakos and Brecht mean anything, it's that the close calls go to the State and are not overturned by the sixth court on review.
06-5247 +++$+++ 51386 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, but an equally divided call goes the other way.
06-5247 +++$+++ 51387 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry?
06-5247 +++$+++ 51388 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If it's not just a close call, but if it's equal, it goes the other way.
06-5247 +++$+++ 51389 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is, and no one has thought this was equal. The two courts -- the three courts, the California Court of Appeals also said in any event there's no possible prejudice. Now, how they could say no possible prejudice under a State standard and still say, ah, but it would have affected the verdict under Chapman, is not something I'm able to understand. So I think you have --
06-5247 +++$+++ 51390 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Neither am I. But I draw a different conclusion from it from the one you're drawing.
06-5247 +++$+++ 51391 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I guess I misunderstand your point, because I think when the court said there's no possible prejudice --
06-5247 +++$+++ 51392 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, I cannot accept the State -- the conclusion that there was no possible prejudice, on the premises that Justice Stevens a moment ago and I a moment before sort of put out. I just do not find that a reasonable conclusion.
06-5247 +++$+++ 51393 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, again, even if the Court thinks there may have been some chance, may have been -- you know -- relevant testimony -- this Court can well disagree and can conclude that this was abuse of discretion. If it were Federal Rule of Evidence 403, you could decide this was a an abuse of discretion. Whether it was unconstitutional, so clearly unconstitutional as to merit under AEDPA and under Brecht reversal of the conviction 12 years after the fact --
06-5247 +++$+++ 51394 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought the AEDPA question was out of it because that hasn't been -- there was no cross-appeal on that question. I thought it was a given, a given in this case, that the California courts did not apply or unreasonably applied clearly established Federal law. I didn't think that was an issue in the case. I think we took it on the assumption that it was such an error.
06-5247 +++$+++ 51395 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, the Respondents in this case have not conceded constitutional error, and in their brief they repeat that. And I think there's a question whether a court should --
06-5247 +++$+++ 51396 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's not raised here. There was no cross-appeal from that.
06-5247 +++$+++ 51397 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, a Respondent is entitled to defend on any ground supported by the record. But even assuming that, we'll assume the error, assumes that there was an error and one assumes that it was -- which is hard for me to get to, but one assumes it was clearly unconstitutional in this close call, the type of call that's made hundreds of times in every trial, balancing this, and the combination of lack of foundation and cumulativeness. It's hard for me to understand when that rises to the level of unconstitutionality. But if we assume that it did, you have the two courts that applied the Brecht standard here. And the district court decision here is nearly 100 pages long. It's a very careful, methodical analysis.
06-5247 +++$+++ 51398 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's because there were many, many issues raised.
06-5247 +++$+++ 51399 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There's many issues, but also it was being careful and it was being very methodical. And it went through this and it went through this record. That court went through true this record, more than 5,000 transcript pages, 11 week of trial, more than 100 witnesses. And it was on that --
06-5247 +++$+++ 51400 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I suppose if we're going to apply the Brecht standard ourselves, we would have to do the same thing.
06-5247 +++$+++ 51401 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that's what this Court has said. The other thing I want to get back to is the question about the length of jury deliberations. Sure, this was really wrong. Now, they changed forepersons in midstream and got a reasonable doubt instruction repeated. Who knows what happened. But what I will not concede -- I will concede it's long, but I will not concede that the mere fact of length of deliberations says anything about if this one particular error in applying a balancing test substantially affected the verdict. I think the length of deliberations is so incredibly speculative.
06-5247 +++$+++ 51402 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You will concede it was a close case, won't you?
06-5247 +++$+++ 51403 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I will concede it was, I will concede it was a difficult case.
06-5247 +++$+++ 51404 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If you take five weeks it's pretty clearly a close case.
06-5247 +++$+++ 51405 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. But you know, the whole the point of federal habeas corpus is that this is not filling in the gaps in direct review. We're not going to give you --
06-5247 +++$+++ 51406 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ There's no evidence or inference that it was close on the alternative murderer theory, which is the only thing that Maples' testimony goes to.
06-5247 +++$+++ 51407 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's exactly right. In fact, if you look at the closing arguments, Mr. Hurtz has a couple of references in a two-day closing argument. That was not the centerpiece of his case.
06-5247 +++$+++ 51408 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It has to be close on an alternative murderer. It wasn't suicide. Obviously, if he didn't do it, somebody else did. So if it's a close case from the first, it's obviously a close case for the second.
06-5247 +++$+++ 51409 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but as to who did it and whether Hurtz did it or whether -- remember, what the defense is trying to show is not who did it; it's that this person didn't do it, and whether it was them or someone else is what we don't know. Again, this is Federal habeas corpus before this Court, and I don't think that the misapplication of a valid rule of evidence, which is not what this Court has in Chambers, Holmes, or any of the cases that were involved, was so -- that simply disallowed the twelfth out of eleven witnesses on third party culpability is so clearly erroneous, it was so clearly impacting the verdict in this case, as to warrant a retrial 15 years after the crime. And yes, the jury -- it was close in the sense that they worked a long hard time. But at the end of the day, they were unanimous. There's nothing close about unanimous. And I think it would be the wrong message to say that a jury that works as hard as this one did, did the readbacks, culled through this record --
06-5247 +++$+++ 51410 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but we don't know what they would have done if they had this evidence that was excluded. That's the problem.
06-5247 +++$+++ 51411 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ One never knows that in habeas corpus. But what you do when you look at what they were focusing on, they were focusing on the two ballistics experts. They had them read back right next each other. They made that call. It's their job to do it.
06-5247 +++$+++ 51412 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the reason they may have been doing that is that they may very well have thought that the evidence indicating third party guilt was close and perhaps persuasive and what they wanted to know was whether the evidence going specifically to this defendant was strong enough to overcome it.
06-5247 +++$+++ 51413 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ May I answer? One would have expected at least one readback on third party culpability instead of three readbacks of Mr. Fry's testimony which put himself that night with the gun in the truck, and which he said -- you know -- and beforehand he agreed he might have said he wanted to blow them away. Thank you.
06-5247 +++$+++ 51414 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Haltom, you have three minutes remaining.
06-5247 +++$+++ 51416 +++$+++ FALSE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. The trial counsel --
06-5247 +++$+++ 51417 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Haltom, before you go drifting, counsel, into the evidentiary questions in the case, I have one question. Two cases. A, Hurtz did not testify at all. B, he did. Is the foundation ruling any different in the two cases insofar as Maples' testimony or is it the same? I.e., is there a lesser showing for foundation if Hurtz did testify?
06-5247 +++$+++ 51418 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that possibly the foundation with Hurtz there could be increased. The jury sought Mr. Hurtz.
06-5247 +++$+++ 51419 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Oh, you mean, oh, you mean more? You have to be more strict for foundation after Hurtz testified? I was suggesting the opposite.
06-5247 +++$+++ 51420 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I was just thinking that his presence there would be relevant. The jury actually saw him. They heard a truck driver describing, a neutral truck driver, describing the actual killer, who in no way fit the description of Mr. Fry. Unfortunately, the record doesn't indicate what Mr. Hurtz looked like, but the jury saw it. And if the jury saw that that truck driver was describing a man that looked like Mr. Hurtz, then that --
06-5247 +++$+++ 51421 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But there were all kinds of infirmities in that truck driver's testimony, including the time, the timing of the murder.
06-5247 +++$+++ 51422 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There were infirmities in his testimony, Your Honor. However, he came from Missouri, so maybe he was looking at a Missouri clock. We don't know. But why would that man make up a story? He has no axe to grind in this case. And then his testimony is corroborated by a gentleman who sees him immediately after it and says: He looked like he had just seen a ghost, and described seeing a double execution-style murder. Now --
06-5247 +++$+++ 51423 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That was all presented to the jury, right?
06-5247 +++$+++ 51424 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That was all presented to the jury. However, Ms. Maples' testimony was not, and counsel did not argue that heavily focused on Mr. Hurtz' guilt. She certainly did argue it, but the reason that she didn't is because, as the Court of Appeals, the California Court of Appeals, said, the other seven witnesses who said Mr. Hurtz said he had killed the Bells were all described as having been flimsy witness who gave contradictory unbelievable testimony.
06-5247 +++$+++ 51425 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, how strong is this witness, who didn't even know if it was a serious conversation, didn't hear the beginning of it, and didn't -- couldn't tell whether he was talking about something that happened 10 years before or 2 days before?
06-5247 +++$+++ 51426 +++$+++ TRUE +++$+++ MR. HALTOM +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, she was extremely strong. Page JA-78 in the joint appendix, Respondent concedes she was the only unbiased witness concerning Mr. Hurtz's -- concerning Mr. Hurtz. She heard this, her cousin, saying he shot a man and a woman in a parked car, first shooting the woman in the head, then shooting the man, getting blood all over himself. That linked up with all the other confessions in this case. Interlinking confessions just like in Chambers were deemed to provide adequate assurance of reliability.
06-5247 +++$+++ 51427 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, counsel. The case is submitted.
06-5306 +++$+++ 51431 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument next in Case 06-5306, Bowles versus Russell. Mr. Mancino.
06-5306 +++$+++ 51433 +++$+++ FALSE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Petitioner is before this Court because he followed an order of the district court. He filed his notice of appeal within the time authorized by the district court. It was only when the matter came before the court of appeals was it raised that the district court apparently had no authority to grant a 17-day extension, although it specified a specific date rather than the 14 days in connection with the case.
06-5306 +++$+++ 51434 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, it was authorized by the district court in the sense the district court put it on a piece of paper. It wasn't authorized because the district court had no authority to extend that.
06-5306 +++$+++ 51435 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The district court put it on there. When you look at the actual entry itself, it's a handwritten entry. There's no way of telling from the handwritten entry whether that entry was even entered on the docket on the same date because all you have is the handwritten entry, February 10, file your appeal by February 27, which is unusual in a civil case because normally in a civil case you get a judgment; you don't get a directive from the Court that you have 30 days to file a notice of appeal or anything in connection with this. So I don't think it's unreasonable to rely upon a directive from a court.
06-5306 +++$+++ 51436 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But you knew that 14 days was the maximum because the motion asking for it cited and quoted from the rule.
06-5306 +++$+++ 51437 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that -- we did cite from the rule. That is correct. When the order came out -- well, first of all, we were glad to get the order to allow time to appeal; but looking at the order, or just looking at the date, something had to be done. And Of course, we filed on one day before the end date --
06-5306 +++$+++ 51438 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What if, what if the District Court gave you an extra month? Would your argument still be the same, that that -- because the court set it, that trumps the limitation in the rule?
06-5306 +++$+++ 51439 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, then you get into certain time limits, whether it's reasonable under the circumstances, would a reasonable attorney or litigant rely upon a, you know, expansive period of time that the court gave to it. But here certainly this order is not unreasonable. It's certainly within the confines. And you have a specific end date, do your notice of appeal by this date.
06-5306 +++$+++ 51440 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But wouldn't a reasonable lawyer have said see, I referred to the rule, when I made this motion for extension of time. The rule said 14 days; this judge obviously made a slip. He miscalculated. Wouldn't a lawyer faced with what the rule clearly says and an inconsistency scribbled on an order, say the judge probably made a mistake? So I better, if I want to protect my client, do what the rule says?
06-5306 +++$+++ 51441 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, looking back, that is probably correct. But looking at the order, and the way it came out, and the fact that you know, the -- the rule allowed for a reopening of the appeal, just looking at the end date of the order, make sure the notice of appeal is filed by that date, it would seem to me that the party who is adversely affected by it may object on that basis, saying Judge, you have no authority to do this, what are you doing in connection with --
06-5306 +++$+++ 51442 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why isn't -- this is just a notice of appeal. Why would you -- why not file it the same day? In terms of looking at it from some equitable sense, I don't understand why you wait toward the end of the period assuming you hadn't focused on the difference between the 14 days and the days allowed. What -- why, why would you delay filing the notice of appeal?
06-5306 +++$+++ 51443 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the only reason for delaying it is obviously workload. And you don't want to get all briefs due within a short period of time, once you get your notice of appeal filed in a particular case, because you have time limits for getting the record, your briefing, and you know, there's a number of appeals going out -- not in this Court, but you know there were a number of appeals going on. And my normal practice is you know, file your notice of appeal near the end of the applicable appeals time.
06-5306 +++$+++ 51444 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does it make -- does it a difference that we're dealing with the safety valve provision? In other words, you've got the 30 days to file; and then this rule allows you to -- it's a safety valve, if you didn't get the notice or whatever, you've got a certain procedure that can give you the extra 14 days. And now it seems to me that you're asking for a safety valve on top of a safety valve. And I wonder if there's some point where you cut off the -- allowing an out for missing the deadline.
06-5306 +++$+++ 51445 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I suppose at some point, someone may say well, if the court gave you 180 days to do the act, someone may say well, that appears to be unreasonable in connection with that. I think the safer thing is just to put the order down, say application, reopen the appeal time, granted. And then it would cause someone to go you know, go back, look at the rule, see how much time is allotted under the rule in connection with the case. But I don't think it's unreasonable; in these circumstances we're only talking about three days to do an act. The act was done in two days.
06-5306 +++$+++ 51446 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, but as soon as you start talking about an exception from the provision in the rules, then you're going to get a lot of applications and there are going to be a lot of different reasons for why it wasn't filed on the last day. Once that -- it seems to me, you open it up for an indeterminate ruling.
06-5306 +++$+++ 51447 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this is an equitable rule in itself. Because it allows something where an appeal time has expired, can you come in and show the circumstances, one, you were not notified, which obviously the court did. The other side's prejudiced --
06-5306 +++$+++ 51448 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well it is an equitable rule conditioned upon compliance with time limits.
06-5306 +++$+++ 51449 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's -- that's once it's granted. It's not, the time limit is 180 days or the seven day after you received or became aware actual notice --
06-5306 +++$+++ 51450 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, but Justice Kennedy's point I think is critical. In other words, the drafters of the rule obviously wanted to provide a safety valve. But they also appreciated that you can't have it open-ended. So they did impose limits on the -- if you want to call it equitable exception to the 30-day rule. And it seems to me that you sort of restrike the balance the drafters of the rule struck if you allow further equitable departures from their, their rule.
06-5306 +++$+++ 51451 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think in past cases the Court has always recognized there are deadlines but there are exceptions to deadlines. And the most compelling exemption is where a court says do the act at this particular time. And you know, it's coming from a judicial officer, it's not coming from someone miscalculating on the calendar, calculating the time when it's 30 days run, when is 14 days run, when it's 10 days run in connection with the case. Because in civil litigation you are not given any specific time to do an act. Criminal cases are a little bit different. You are told about an appeal, when an appeal has to be filed in connection with a case. You do not have in civil, when you get your final order -- you know you have 30 days to do it.
06-5306 +++$+++ 51452 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Mancino, your position here is that this rule is not jurisdictional. Now, what -- what are the consequences of that? I take it that that would mean that the court of appeals has no obligation to inquire on its own whether the matter has been filed too late?
06-5306 +++$+++ 51453 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I believe --
06-5306 +++$+++ 51454 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Right? If the parties don't make anything of it, the court of appeals can -- can take a late, a late filing?
06-5306 +++$+++ 51455 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think when the court of appeals does that, I think in all fairness, they should advise the parties in advance that they we're considering this on our own, that the appeal was out of time, and would you like to --
06-5306 +++$+++ 51456 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, no, but I'm asking whether a court of appeals has to even worry about that? If the parties don't make anything of it, the court of appeals can just assume it's okay and go ahead, right?
06-5306 +++$+++ 51457 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Correct. Because I think they've waived any -- the other side obviously has waived or forfeited any right to object to the -- you know, to the --
06-5306 +++$+++ 51458 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you need an objection or else it's, it will be okay?
06-5306 +++$+++ 51459 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry?
06-5306 +++$+++ 51460 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And you need an objection or else it will be all right?
06-5306 +++$+++ 51461 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The objection in this case came -- you know, in the --
06-5306 +++$+++ 51462 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That means that a rule -- that -- 14 days is really a rule left to the discretion of the district judge. If the district judge feels like giving a little more, this would be no control, unless the opposing side objects; is that right?
06-5306 +++$+++ 51463 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I believe it does call for a timely objection by somebody to say something, rather than to just sit back and let it expire, knowing that someone did something that they should not do in connection with --
06-5306 +++$+++ 51464 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose you have problems at home. I don't know, you have an illness at home. And you ask counsel for the other side, you know, I know it's a 14-day limit, but would you give me 20 days? Right? And opposing counsel being as friendly as they are nowadays -- (Some laughter.)
06-5306 +++$+++ 51465 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ -- the other, the other side would say sure, take 20 days. Okay? So you prepare a paper for signature by the judge and he signs off on it, gives you 20 days. That's okay then, right?
06-5306 +++$+++ 51466 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well I --
06-5306 +++$+++ 51467 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Because the other side's agreed. He won't object on the court of appeals. And suddenly, suddenly, you've got 20 days even though the rule says 14.
06-5306 +++$+++ 51468 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there you have somewhat advance knowledge that you're doing something possibly contrary to a rule. But then you have the issue of once you do it, are you forfeiting your right to object and claim a deficiency in the process. Here you're only -- what you're doing --
06-5306 +++$+++ 51469 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I mean, that -- that may, that may be true of this stage; but Justice Scalia's question points up the problem of what do we do if we write this case? How do we formulate this rule? And if we say that it's not jurisdictional, not binding, then going forward, it seems to me to allow the hypothetical that he puts to you.
06-5306 +++$+++ 51470 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I believe you can come up with all sorts of scenarios. What I think is the thing --
06-5306 +++$+++ 51471 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's why we're wondering how to write the opinion. (Laughter.)
06-5306 +++$+++ 51472 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And where did the litigant reasonably rely upon an order of the court, which apparently the court had authority to issue, regardless of the court making a mistake or doing something intentionally --
06-5306 +++$+++ 51473 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And the person who did the reliance was you, I guess?
06-5306 +++$+++ 51474 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, that's correct.
06-5306 +++$+++ 51475 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And is it correct that -- who -- was this litigant represented by counsel during the period when he didn't get the notice of the September 9 order?
06-5306 +++$+++ 51476 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. I filed the habeas petition. I did anything in connection with the case.
06-5306 +++$+++ 51477 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So neither the, neither the prisoner nor you received any notice of the first goof up?
06-5306 +++$+++ 51478 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the first -- well, we received notice of the judgment on the merits. Then we filed a motion to alter judgment or for a new trial. It was not, the order overruling the motion to alter or amend judgment or the motion for a new trial date was not received. And the clerk's docket showed it wasn't mailed out.
06-5306 +++$+++ 51479 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I see.
06-5306 +++$+++ 51480 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But in the, in that court, there was a transitioning to this electronic filing, which not everybody was set up at that particular time; so apparently the order may have only gone to -- on the electronic filing system to those who were set up, and we were not set up on that thing. But the court still had the obligation to send it out. The court found that the clerk did not send it out. The clerk found that, or the court found that we did not have notification. And the court found that the other side is not prejudiced by any application.
06-5306 +++$+++ 51481 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Would your -- would your proposed exception, does it work the other day? I mean, let's say the district court entered this order and set a date certain for you to file the notice of appeal, and only gave you seven days on his count rather than 14, and you filed it on the ninth day, in other words within the 14 days given under the rule. Would you be out of luck because of what the district court set out in its order as what's binding, as opposed to what the resume says? Or could you rely on the fact the rule says you get 14 days?
06-5306 +++$+++ 51482 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well I would believe you could then argue that the rule says that, the judge was wrong in -- you know -- in truncating your appeal time to file the appeal.
06-5306 +++$+++ 51483 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why wouldn't the same approach work the other way? The rule says 14 and the judge was wrong to give you more?
06-5306 +++$+++ 51484 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, because the exceptions to all of these time deadlines, you have cases from this Court where people untimely file a motion for a new trial. A new trial motion by rule has to be timely filed in order to toll your time. And there have been cases where the motion for new trial has been untimely filed. The other side didn't say anything. And then when the ruling is made, the appeal is filed within the appropriate time. And this Court has sanctioned that procedure in connection. I see no difference here, where a litigant before a court, the court issues an order, you look at the order. And you abide by the order in connection with the case. They do have a reasonable reliance in the case. And in looking back later on, in connection with the -- the issue, in connection with the case.
06-5306 +++$+++ 51485 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You know sometimes, sometimes district courts take jurisdiction over a case that they -- that they shouldn't have jurisdiction over.
06-5306 +++$+++ 51486 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
06-5306 +++$+++ 51487 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And sometimes in reliance on that, you go through a whole trial and it comes up to the court of appeals and we say huh, there was no jurisdiction here; too bad.
06-5306 +++$+++ 51488 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
06-5306 +++$+++ 51489 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even though the court said it and you went through a whole trial in reliance on the district judge. District judges make mistakes.
06-5306 +++$+++ 51490 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's a whole -- I believe that's a whole different scenario than presented here. That goes to the subject matter --
06-5306 +++$+++ 51491 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's even worse, it seems to me. I mean, you've wasted weeks, you know, in trial and so forth.
06-5306 +++$+++ 51492 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
06-5306 +++$+++ 51493 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But if it's jurisdictional, we have to say, you know, too bad. Yes, you were misled by the judge. In reliance on the district judge, you expended a lot of time and money, but there was no jurisdiction. And that's the end of the matter.
06-5306 +++$+++ 51494 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the rule I always remember from law school is that parties cannot voluntarily confer jurisdiction on a court that does not have it. And the court, at any point, if they do not have subject matter jurisdiction, is free to dismiss the case whether it's at trial level, the appeal level, or whatever. This is not that situation. Obviously, the court by the rule could look into this matter. The court by the rule could grant relief in connection with this matter. It's a question whether the three days --
06-5306 +++$+++ 51495 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I know I could find this out by looking at a calendar. Do you remember what day of the week February 24th was, or 26th?
06-5306 +++$+++ 51496 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe --
06-5306 +++$+++ 51497 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We don't have a weekend problem, do we?
06-5306 +++$+++ 51498 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe it was not -- I don't believe it was a weekend, no.
06-5306 +++$+++ 51499 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I looked at this. There's a time start. And I think it might be the time stamp when this document was entered on the ultimate appeal. But -- but something you said at the outset prompts this question, that -- Did you think that -- the time runs from $14 days after the date when the district court's order is entered.
06-5306 +++$+++ 51500 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ When it's entered. That's correct.
06-5306 +++$+++ 51501 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And was there a submission or an implication in your remarks that you thought that the order was not entered until three days later?
06-5306 +++$+++ 51502 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No.
06-5306 +++$+++ 51503 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is there an entry -- is there a time entry on the dock -- on court's order?
06-5306 +++$+++ 51504 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. It's a handwritten one that doesn't say anything --
06-5306 +++$+++ 51505 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I know that it's a handwritten one. But that that -- that shows how long he has to appeal. is there a date when the order was put on the docket? Does that show on this sheet?
06-5306 +++$+++ 51506 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. There's nothing from the clerk indicating -- on the docket there is, but nothing on the document that was sent, because the document only was sent -- it was just handwritten over the -- on top of the motion, so there was no way of telling when it was entered. Because you look back at the history of this case, when the court dismissed the original petition, the court had a date on it. It was only 18 days later that it was actually entered by the clerk, and of course that triggered the time for asking for reconsideration. So -- but --
06-5306 +++$+++ 51507 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What about the weekends? I mean, maybe the judge -- I -- it looks from my calendar -- I wondered what day of the week it was. You don't remember. 2/10, February 10, 2004, what day of the week was it?
06-5306 +++$+++ 51508 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That I cannot answer.
06-5306 +++$+++ 51509 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It looks like it was the middle of the week. So maybe there were one or two weekends. So maybe what the judge's mistake was, he didn't know how to count the weekend rule.
06-5306 +++$+++ 51510 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what I think was done --
06-5306 +++$+++ 51511 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Which may not be jurisdictional, the weekend rule.
06-5306 +++$+++ 51512 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What I believe is that this was sent out by mail. So they had, you know, the three-day mail rule, and that's how you came to the 14 days in connection with the -- put in the 17-day limit on --
06-5306 +++$+++ 51513 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Maybe Arabic numerals aren't jurisdictional either.
06-5306 +++$+++ 51514 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They're not. A numeral is not jurisdictional. What's -- what's -- what's the three-day mail rule?
06-5306 +++$+++ 51515 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, normally if you are allowed to do an act by mail, you have three days, you can serve a party and then you have three days to file with the court as part of the Civil Rules. I sort of think that's what the judge -- because this was going out by mail -- he probably didn't get -- I wish I would have saved the envelope, but I don't have the envelope, but it probably didn't get to my office for three days anyway.
06-5306 +++$+++ 51516 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Speaking of the three-day mail rule, maybe the judge's intent when he signed this was that it actually was entered, took effect as of three days later.
06-5306 +++$+++ 51517 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there's really no -- looking at the document, there's no way of telling that. That is correct. There's no way of telling that, and I believe that was probably the reasoning of the court that, you know, it took three days to get mail because you didn't get -- it wasn't sent out last time, obviously you did not get the mail the last time, so he added the three days, and then you have the 14 days to, you know, perfect or file your notice of appeal to get it to the court in this case. So --
06-5306 +++$+++ 51518 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ All of that might have -- all those things might have been going on in the judge's mind, but you don't contest that the 14-day period was not complied with? You don't have an argument that you complied with the 14-day period?
06-5306 +++$+++ 51519 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I do not. We're relying to the exceptions, and there's a number exceptions on deadlines that have come out. We have the equitable tolling, we have the waiver, forfeiture issue. And, you know, in this case, specific assurance by a court which in a past opinion seemed to control the date, where a judge gave you a specific assurance that you could do something in connection with the case. The old Harris Truck case is where the lawyer was on vacation. The judge said well, I'll give you some extra time. Even though they knew of the judgment, they knew the time would run, he said I'll give you extra time to file the appeal because you want to contact the lawyer who was on vacation. The court of appeals then said well, the rule didn't apply because you knew of the order, so -- but that was overlooked even though by time calculation, everybody was out of time. The Eberhart case, they were out of time because the motion for new trial was filed untimely, which under the rule required a timely filing of a motion for a new trial in order to toll your appeal time. So this, obviously the motion to reopen was timely filed, was filed within the 180 days required by the rule. The other side was served. The other side had no objection to it and didn't oppose it. The real issue when you look at an equitable -- sort of an equitable rule like this, is the other side prejudiced, and obviously they are not prejudiced.
06-5306 +++$+++ 51520 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ One of the things I think the drafters of the rule wanted to assure is that there would be a point at which the prevailing party in the district court could know with certainty there wasn't going to be further proceedings in the case, and that's the purpose of the 180-day period and all that. It's not open-ended. Under your rule where the actual time for filing could be at some indefinite point, they'd never really quite have that assurance, would they?
06-5306 +++$+++ 51521 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, unless the court specifically granted to the litigant a specific period of time, and you know, normally litigants and lawyers do not ignore what the court says. At least I think as, you know, anyone -- if this court said that, you have a right to reasonably rely on what the court said. And it certainly wasn't an unreasonable period of time that the court was giving in the case. It wasn't --
06-5306 +++$+++ 51522 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, what would be an unreasonable period of time if the two or three days is not? Would another 10 days?
06-5306 +++$+++ 51523 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if you go back to the rules, you're going into the six months, 180 days, and then, you know, you would say something. Or if the court, you know, gave you a year or something by mistake, you know, it would -- you know, that something does not sound right here. And then you would look at it. At least if that were the case, you could probably go in and get the court to reconsider, bring it to the attention of the court. Your Honor, we did not have all of this time. Did you make a mistake? You can always correct mistakes. But that was not done here, it was not done by the respondent in this case because they didn't -- the respondent did not object to the application to reopen the appeal, did not say anything --
06-5306 +++$+++ 51524 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But the respondent said he had no reason at that time to believe that you wouldn't follow the rule and file within the 14 days. So if they made an objection, the moment the judge put down a date that's 17 days later, the judge might say that's premature.
06-5306 +++$+++ 51525 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well then, the judge may have said well, I don't -- look at the rule. I don't have it. I'm going to redraft the order, vacate my order and put a proper order on in connection with the case. It would seem to me that at some point in the appellate process, because when you look at the history that the Sixth Circuit in this case -- at least when the court then granted a certificate of appealability, you would think the respondent would -- what are -- why are you granting a certificate of appealability when you told us we have no jurisdiction over this case, or at least from the two orders anyway, they said they had jurisdiction over the February 10th order that -- on the appeal. And the -- then the certificate of appealability was denied, and normally that would end the case. The court granted the -- my motion for reconsideration, and then granted certain issues that could be briefed on the merits. But once the court granted the certificate of appealability, it seemed to me that the other side, well, what is happening here?
06-5306 +++$+++ 51526 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Mancino, I take it that what you are really proposing is sort of a rule that if -- if counsel could reasonably be misled to overlook the mistake by the court, that your reliance upon the court's mistake should -- should, in fact, be respected. It's kind of a rule of reasonably misleading; is that about right?
06-5306 +++$+++ 51527 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe so.
06-5306 +++$+++ 51528 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, that's how we distinguish your case on your view from the case in which you get 180 days instead of 14?
06-5306 +++$+++ 51529 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. Sort of, you know, reasonably reliant, is it fair.
06-5306 +++$+++ 51530 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You think we should have a rule of reason rather than a per se rule. (Laughter.)
06-5306 +++$+++ 51531 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's the prior case, because they made that.
06-5306 +++$+++ 51532 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Let me ask this question: Is the order on page 151 of the joint appendix, just those three lines, that's the entire order that the judge entered? It just says granted, and motion --
06-5306 +++$+++ 51533 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is what's handwritten on the original documents. That's it.
06-5306 +++$+++ 51534 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ He did not make the findings that the rule requires?
06-5306 +++$+++ 51535 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. But presumably you would assume that those findings are subsumed within the rule because the judge found in our favor. The judge denied the motion to vacate part of it but granted the reopening to vacate, and of course on the --
06-5306 +++$+++ 51536 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Because the motion requires --
06-5306 +++$+++ 51537 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- motion to vacate, you have 30 days to appeal.
06-5306 +++$+++ 51538 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The rule requires that he make three specific findings which he did not make.
06-5306 +++$+++ 51539 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He did not make it, but you assume that the judge did by granting the motion, and nobody else said anything about it anyway. I reserve the time.
06-5306 +++$+++ 51540 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, counsel. Mr. Marshall?
06-5306 +++$+++ 51542 +++$+++ FALSE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The petitioner's failure to meet the 14-day statutory deadline for filing his notice of appeal is fatal to his case for three reasons. First, the 14-day period is mandatory and jurisdictional, and Federal district courts do not have the power to enlarge this time period. Second, the 14-day rule was not forfeited by the state of Ohio and may be raised by the court sua sponte in any event. Third, even if there could be some sort of limited equitable exception to the 14-day time requirement, the petitioner here falls far short of demonstrating why he is entitled to such extraordinary relief. Let me explain why. The petitioner's claim that notice of appeal time requirements are not jurisdictional contradicts 150 years of practice, countless lower court decisions, settled congressional understanding as to the meaning of its governing --
06-5306 +++$+++ 51543 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What type of jurisdiction are you speaking of? It's certainly not Federal jurisdiction in the sense of subject matter jurisdiction, like a specific case arising under Federal law. What kind of jurisdiction do you have in mind?
06-5306 +++$+++ 51544 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think it is its own form of subject matter jurisdiction in the same way that final judgments on appeals are subject matter jurisdiction. And the reason why is that notice of appeals are classically jurisdictional in that sense, in that they transfer the locus of the case from one court to another. In the appellate system, there's actually a changing of the jurisdiction, and the notice of appeal is that triggering mechanism. And in that sense, it is classically jurisdictional and different from the other kinds of time limits that this Court addressed in Kontrick, in versus Eberhart because those took place within a particular court system, the district court system, where here there was a transfer of jurisdiction triggered by the notice of appeal from one court to the other.
06-5306 +++$+++ 51545 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Isn't that just a word game? It's jurisdictional because it transfers jurisdiction from one court to the other. Why should that be -- why does that make it jurisdictional?
06-5306 +++$+++ 51546 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think, Your Honor, the same way that final judgments are. I mean, final judgments are a jurisdictional prerequisite to transfer from one case to another. The second reason, Your Honor, by the way, is congressional, is the congressional reenactment of the notice of appeal time deadlines, which also indicates that Congress treats these --
06-5306 +++$+++ 51547 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Can you think of anything that's enacted by Congress as jurisdictional?
06-5306 +++$+++ 51548 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor, but when there is a background, as there is in this case, of 150 years of practice where Congress has enacted against that background, it is presumed to be jurisdictional. And I'd also point out that with respect to this Court's jurisdiction, the Court has treated petitions for certiorari as jurisdictional in civil cases because there is a statutory underpinning, but has not treated them as jurisdictional in criminal cases in part because there is not a statutory underpinning.
06-5306 +++$+++ 51549 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Doesn't the latter suggest that a rule that concerns the transfer of a case from one court to another is not necessarily jurisdictional?
06-5306 +++$+++ 51550 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think the latter recognizes the fact that it doesn't necessarily have to be. That is correct. However, that Congress and this Court can treat such a thing because it is in a -- because it is a -- because it does transfer the case from one to another. I think that the criminal -- that in the certiorari case, with respect to criminal, it might be an indication there that there might be some relation. But I would also suggest that with respect to certiorari practice, you've already -- you're already in the appellate mode and you're not dividing the jurisdiction between trial courts and appellate courts. But the quick answer is yes, Your Honor, I don't think it has to be jurisdictional, but certainly it can be jurisdictional. And for 150 years, this Court and Congress has treated this particular division as jurisdictional.
06-5306 +++$+++ 51551 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it seems to me that's what we're back to, that it's long been treated as jurisdictional. But you just said that it's not sufficient that it's been enacted by Congress and it's not sufficient that it transfers the case from one court to another. So we're back just to history, right?
06-5306 +++$+++ 51552 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, it's more than just history, because I think Congress reenacting 2107 against this background for 150 years, that this issue has been treated as jurisdictional, puts Congress behind this as well. But here it's also, 150 years is not a matter of --
06-5306 +++$+++ 51553 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The provision of, is it 2107?
06-5306 +++$+++ 51554 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
06-5306 +++$+++ 51555 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where does that appear in the judicial code? Does it appear under the provisions concerning jurisdiction?
06-5306 +++$+++ 51556 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. 2107 does not itself mention jurisdiction. However, that is also true with 2101 in respect to this Court's certiorari jurisdiction in civil cases. The word jurisdiction is not mentioned specifically but it --
06-5306 +++$+++ 51557 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it is under the heading procedure, court procedure, right?
06-5306 +++$+++ 51558 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's time for appeal to court to proceed.
06-5306 +++$+++ 51559 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, but that's under a chapter that deals with procedures, as opposed to jurisdiction.
06-5306 +++$+++ 51560 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. But this Court in Barnhart suggested that in determining whether something is jurisdictional or not, one looks at the context of the particular location. Here this Rule 21 -- excuse me. Here this statute, 2107, has been enacted and reenacted against the background of this Court consistently saying it's jurisdictional and treating this rule as jurisdictional, and that's since cases as far along as Edmondson.
06-5306 +++$+++ 51561 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You know there have been a spate of cases that said the word "jurisdiction" has been vastly overused, it's a word of many meanings. And you are telling me that the meaning of these statutes is subject matter jurisdiction, just like it's diversity, is there a federal question?
06-5306 +++$+++ 51562 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor, in the same way that amount in controversies are also subject matter.
06-5306 +++$+++ 51563 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But amount in controversy is in 1332. Congress putting it right there together. It says diversity of citizenship plus amount in controversy, all in 1332. Here the limit appears in a statute, a rule of procedure, not jurisdiction.
06-5306 +++$+++ 51564 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. But that statute has been enacted against, as I keep reemphasizing, 150 years of practice, including the Edmondson case in 1869, where the Court on its own motion raised the matter as being jurisdictional and because the time period had not been complied with dismissed the appeal. The question essentially isn't whether we're going to call it jurisdictional or not. The question is the effect of the particular rule. Some of the lower courts call its indications of jurisdiction or a prerequisite to jurisdiction. The question is what the treatment of this particular requirement is and the treatment of this particular requirement consistently for over 150 years has been that it is mandatory, jurisdictional, non-forfeitable, it can be raised by the court sua sponte.
06-5306 +++$+++ 51565 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What characteristics are you asserting follow from calling it jurisdictional in this case?
06-5306 +++$+++ 51566 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the --
06-5306 +++$+++ 51567 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Number one, it can't be waived, right?
06-5306 +++$+++ 51568 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
06-5306 +++$+++ 51569 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Number two --
06-5306 +++$+++ 51570 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's non-forfeitable.
06-5306 +++$+++ 51571 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The court of appeals has to inquire on its own, right?
06-5306 +++$+++ 51572 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
06-5306 +++$+++ 51573 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Anything else?
06-5306 +++$+++ 51574 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. There's no equitable exception to it. There is no equitable exception to it as well if it's jurisdictional. So all of those three attach to the term "jurisdictional." But I also think they could equally attach to the notion that, even if we don't want to call it jurisdictional, if we don't view it as fitting easily within this category of subject matter jurisdiction.
06-5306 +++$+++ 51575 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Except at least as to the second, at least as to the second, I don't know of any matter that a court has to inquire into sua sponte which is not jurisdictional. That's the one of the three characteristics that I think we have always attached the word "jurisdictional" to, I think.
06-5306 +++$+++ 51576 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, in Day versus McDonough in dealing with a habeas, with a habeas statute of limitations, this Court approved the court of appeals raising that issue sua sponte, although they -- although in that case the Court --
06-5306 +++$+++ 51577 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It may.
06-5306 +++$+++ 51578 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It may.
06-5306 +++$+++ 51579 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But not must.
06-5306 +++$+++ 51580 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
06-5306 +++$+++ 51581 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Not must. And truly with things we have called jurisdictional, you must, right?
06-5306 +++$+++ 51582 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. However, if the lower courts wanted to play with the language a little bit and call it necessary for the invocation of jurisdiction or a prerequisite --
06-5306 +++$+++ 51583 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ We could call it "quasi-jurisdictional." You wouldn't object to that?
06-5306 +++$+++ 51584 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. As Shakespeare might say, it's not the name. We are interested in the effect, and the effect here has been traditionally enforced over 150 years of court practice.
06-5306 +++$+++ 51585 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, what do you think is the --
06-5306 +++$+++ 51586 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How far do you take it? Suppose this ^ slip is not noticed in the court of appeals, and then there's a petition for cert, and some clever law clerk notices that the notice of appeal was filed in 16 days instead of in 14 days. Would the court then have to dismiss for want of jurisdiction?
06-5306 +++$+++ 51587 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. I think it applies in the same way that lack of diversity would apply or lack of a Federal question could apply, as in the Mottley case. Even if it was in front of this Court, if it was recognized in front of this Court, at that time it would -- it must be dismissed.
06-5306 +++$+++ 51588 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let's take it a step further. Let's assume it isn't recognized. Assume he gets his habeas relief, and three years later some eager beaver is culling through the records and says, this guy never should have been in court. Do they rearrest him and put him into prison?
06-5306 +++$+++ 51589 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, collateral attacks for lack of subject matter jurisdiction are not normally sustained, if that's what the -- if I understand your question correctly. So that, for example, in a diversity case, if two years or three years after it proceeds to final judgment somebody realizes that both parties were from the same State, the collateral attack would normally not allow to change that, to change that result. And I would think that the same thing would happen here. If the case had proceeded to final judgment, if there were an error of this type, as with other types of errors in subject matter jurisdiction, there would not be an opening for collateral attack.
06-5306 +++$+++ 51590 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What about something here I hadn't run across, called the unique circumstances doctrine. This Court in Osterneck said this: Where a party has performed a act which if properly done would postpone the deadline for filing his appeal -- and indeed that's what happened here; he postponed the deadline for filing his appeal -- and has received specific assurance by a judicial officer that this act has been properly done -- and here he did receive specific assurance by a judicial officer that the act was properly done -- in those circumstances, you can make a little exception in the interests of justice.
06-5306 +++$+++ 51591 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, the unique circumstances doctrine doesn't apply here because there wasn't an act which if requested could have been properly done.
06-5306 +++$+++ 51592 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes, yes, the act was that he filed a motion to reopen, which motion to reopen postponed the time of appeal. And two things have to happen with that act. One is you have to get the district judge to agree; and second, you have to file the paper. So that's the act which if properly done would, in fact, have led to the appeal.
06-5306 +++$+++ 51593 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think that --
06-5306 +++$+++ 51594 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I agree there were two parts to it or two acts, if you want.
06-5306 +++$+++ 51595 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Justice Breyer, in this case I think that what would have had to happen is that the Petitioner would have had to move for 17 days in order for the act to be properly done. He moved for 14 days.
06-5306 +++$+++ 51596 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I thought what we were talking about was that if the order had said 14 days instead of 17, then the act would have been properly done. That is, the only reason that -- the 16 days, according to Mr. Mancino the only reason he took 16 days was the judge authorized that. If the judge hadn't authorized that, the rule wouldn't have been discarded and he would have filed in 14 days.
06-5306 +++$+++ 51597 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, the judge -- our argument is in part that the judge had no power to authorize it. If I understand your question, with respect to the unique circumstances doctrine, this doesn't fit in because in the unique circumstances doctrine the litigant actually has to seek a particular type of relief and get granted that relief. The Petitioner here did not seek leave to file his motion of appeal within 17 days. The Petitioner here sought, which is the only thing he could do under the rules, is seek to reopen for 14 days.
06-5306 +++$+++ 51598 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So he hasn't received, just quoting from Osterneck, he hasn't received assurance that the act has been properly done?
06-5306 +++$+++ 51599 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right.
06-5306 +++$+++ 51600 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ In other words, if he came back and said, was my notice of appeal timely or something, and the judge at that point ruled, then it might come under that provision. But this is just -- prospectively, he could have filed this timely even after the judge issued the order. In other words, he could have filed it on the 14th day. He didn't have to wait until the 17th day.
06-5306 +++$+++ 51601 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
06-5306 +++$+++ 51602 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why does that matter? I mean, also Osterneck I happened to guess involved a case that took place on Tuesday. This case took place on Thursday. I mean, I grant you the language literally you could say doesn't quite fit it, but so what? The purpose of this Osterneck I take it is to have a very narrow exception where a judge tells you basically what to do, and you follow what the judge said, and then, lo and behold, they hit you with this jurisdictional thing and you didn't get it right. Now, that seems to be its purpose, and the language is very close, so why not follow it?
06-5306 +++$+++ 51603 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the purpose of the unique circumstances doctrine is not to give a license to litigants to rely on district court errors.
06-5306 +++$+++ 51604 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That would be the very narrow circumstances doctrine, not the unique circumstances doctrine. (Laughter.)
06-5306 +++$+++ 51605 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I notice the court applied it twice, so it couldn't quite be the unique circumstances.
06-5306 +++$+++ 51606 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right, Your Honor.
06-5306 +++$+++ 51607 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I ask this question. Supposing there was a dispute as to whether the order had been entered on February 10 or February 12. Say his handwriting was illegible. Would that be a dispute that would remain open throughout the appellate process?
06-5306 +++$+++ 51608 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the question is when the clerk of court would have entered for the entry of judgment.
06-5306 +++$+++ 51609 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If he'd entered this order on February 12 or 13 -- I forget which day it was -- the appeal would have been timely?
06-5306 +++$+++ 51610 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Your Honor.
06-5306 +++$+++ 51611 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And I'm just -- and the order was defective because it didn't make findings required by the rule. And I'm just wondering, supposing it was ambiguous as to the date it was actually entered. Would the party then be entitled to rely on the date, February 27th, set in the order, or would he have a duty to investigate and find out exactly when the judge signed the order?
06-5306 +++$+++ 51612 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the key question, Your Honor, I think is when the -- when the order is entered into the docket, which is done by the clerk of course. I think that is the triggering time.
06-5306 +++$+++ 51613 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ My question is what if that's somewhat ambiguous? A busy court, he handed it to the clerk and the clerk didn't enter it into the docket. You're not sure, there's a fact dispute about that.
06-5306 +++$+++ 51614 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that's a different case. The beginning time period is a beginning case, if there was some ambiguity there.
06-5306 +++$+++ 51615 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I understand. I'm just wondering what your view is, how should courts resolve that kind of dispute? Should that be a dispute that remains open throughout the appellate process/ There's a factual dispute as to when the judge signed order.
06-5306 +++$+++ 51616 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor. Again, the factual dispute is when the --
06-5306 +++$+++ 51617 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If he had written here, instead of "2-10," he had written down "2-12," then the prosecutor 3 days later realized he had written down the wrong date, would that have made the appeal untimely?
06-5306 +++$+++ 51618 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I think the question at that point is what is the time period entered into the formal docket, and what is the actual judgment.
06-5306 +++$+++ 51619 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And that's ambiguous, I'm saying. That's ambiguous.
06-5306 +++$+++ 51620 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If for some reason the court records are jumbled for some reason or another and nobody can determine when that entry of order is, that's a different case.
06-5306 +++$+++ 51621 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In that case, you then rely on the February 27 date in the order? Then it must be permissible to rely on appeal to be filed by 2-27? In such a case it would be okay.
06-5306 +++$+++ 51622 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, Your Honor, the critical thing with the rule period is the time period from the entry of judgment.
06-5306 +++$+++ 51623 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I know, and I say it's hard to figure out when the order was actually written down in the docket.
06-5306 +++$+++ 51624 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that the question that would be required then was for whoever was filing the notice of appeal to determine when the entry of the docket is. If that's ambiguous, I think it's obligatory on the litigant to err on the side of caution, Your Honor.
06-5306 +++$+++ 51625 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And not rely on the 2-27 date.
06-5306 +++$+++ 51626 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would certainly suggest that a litigant argue on -- err on the side of caution if at all.
06-5306 +++$+++ 51627 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Justice Breyer quoted from the Osterneck case. There was another statement of the rule which goes like this: There is a sharply honed exception covering cases in which the trial judge has misled a party who could have and probably would have taken timely action as a trial judge conveyed correct rather than incorrect information. This case fits right into that description, doesn't it?
06-5306 +++$+++ 51628 +++$+++ TRUE +++$+++ PLAINTIFF'S COUNSEL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. The case that they're citing to is Thompson, and in Thompson what occurred in that case is that the litigant in that case --
06-5306 +++$+++ 51629 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The case that I'm reading from is the concurring opinion in Carlisle against United States. It does cite Thompson.
06-5306 +++$+++ 51630 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thompson is the case, Thompson -- this Court has not relied on the unique circumstances doctrine in 40 years. Buy in Thompson what occurred was the Petitioner requested a new trial untimely, but was told by the court that they had timely requested a new trial. Because they were informed that they were entitled to a new trial, they did not do something else, which was file the notice of appeal. So the court basically sent them down the wrong avenue. Here there was no wrong avenue that the court -- that the litigant was being sent down.
06-5306 +++$+++ 51631 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But they would have filed that notice of appeal earlier if the judge had said, your motion for a new trial is untimely. It seems to me the same as in this case. The judge said: Your motion is timely, so you're going to have the trigger so much later. Fine. If the judge had said, your motion is untimely and you know you've got to get your notice of appeal in sooner rather than later. Similarly, here the judge said, well, you've got until 17 days later. If the judge had done right and said the 14-day period, then surely Mr. Mancino would have filed within that period.
06-5306 +++$+++ 51632 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But, Your Honor, there is nothing that the court did that prevented the litigant here from filing on time. There was nothing that would have prevented the litigation here from filing within the 14-day period. And when --
06-5306 +++$+++ 51633 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There was nothing in Thompson that prevented filing the notice of appeal.
06-5306 +++$+++ 51634 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Except in Thompson, Your Honor, he was told that he had the right to proceed on a motion for new trial. If he had -- Your Honor, I see that my time is up.
06-5306 +++$+++ 51635 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You can finish your answer.
06-5306 +++$+++ 51636 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In Thompson, Your Honor, the difference is that -- that the litigant was sent down a different road which was inconsistent with his filing a notice of appeal. Here there is nothing inconsistent about filing a notice within 14 days as opposed to 17 days.
06-5306 +++$+++ 51637 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Marshall.
06-5306 +++$+++ 51638 +++$+++ TRUE +++$+++ MR. MARSHALL +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Your Honor.
06-5306 +++$+++ 51639 +++$+++ TRUE +++$+++ THE COURT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We'll hear from Mr. Stewart.
06-5306 +++$+++ 51641 +++$+++ FALSE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you Mr. Chief Justice and may it please the Court. For four basic reasons the deadline for filing a notice of appeal in a civil case should be treated as jurisdictional and therefore as nonwaivable. First, the time limit sent forth in Section 2107 directly implicates the concerns that underlie the special treatment of jurisdictional issues. It's a fundamental precept of our legal system that Federal courts should take special care to avoid adjudicating cases where Congress has not authorized them to do so. Or to put it another way, our legal system has presupposed that the unauthorized exercise of jurisdiction is an error different in kind from the misapplication of law in cases that a court is authorized to adjudicate.
06-5306 +++$+++ 51642 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Stewart, do you think this is subject -- that question is subject matter jurisdiction?
06-5306 +++$+++ 51643 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We would -- we would characterize it as a species of appellate jurisdiction. That is, this Court has often said that it's the fundamental duty of this Court when doubt is -- when doubt is apparent, to inquire into its own jurisdiction and that of the court from which the record comes. And that division presupposes that there are cases over which the lower court had subject matter jurisdiction, over which this Court would not have appellate jurisdiction. For example, situations sometimes arise, particularly in cases that are adjudicated by three-judge district courts, in which there is a dispute as to whether a particular district court order is directly appealable to this Court or should go instead to the court of appeals. And if somebody comes to this Court and this Court determines that the appeal should have gone to the court of appeals instead, the error is characterized as one of appellate jurisdiction. This Court lacks jurisdiction to review the ruling even though there's nothing to suggest that the case as a whole fell outside the subject matter jurisdiction of the district court.
06-5306 +++$+++ 51644 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Stewart, that's one those interesting examples. We lack jurisdiction of the case but we have power to order it refiled, to vacate the order and have it refiled, don't we?
06-5306 +++$+++ 51645 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is an anomaly. The Court has said on occasion that because it lacks appellate jurisdiction it has no power to do anything with the case except to vacate the order. And I think that's a court that I'm not going to try to explain. (Laughter.)
06-5306 +++$+++ 51646 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But I think Mr. Marshall has identified the second example, namely the final decision requirement of 28 USC 1291. That is, that's universally conceded to be a jurisdictional rule, even though it has nothing to do with whether the district court had subject matter jurisdiction over the case. It is simply whether this particular decision over -- for which review is sought falls within the appellate jurisdiction of the court of appeals. And our point --
06-5306 +++$+++ 51647 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Stewart, should we repudiate the unique circumstances doctrine?
06-5306 +++$+++ 51648 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think you need to -- I think you should repudiate any conception that Federal courts have freewheeling authority to excuse noncompliance with statutory time limits for taking appeals.
06-5306 +++$+++ 51649 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, the unique circumstances doctrine is one circumstance in which courts, say yeah, you can excuse it.
06-5306 +++$+++ 51650 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I -- I think actually both Harris and Thompson are explicable on other grounds. And may even be correct in more limited ways. For example, Harris --
06-5306 +++$+++ 51651 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But on the grounds for which they have been taken as authority, is it your view that we should repudiate those grounds?
06-5306 +++$+++ 51652 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. With respect to civil cases for which the time for taking an appeal is specified by statute, it's our view to the extent that Harris and Thompson would otherwise support the proposition that district courts may excuse noncompliance with the time limits, those cases should be repudiated.
06-5306 +++$+++ 51653 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well -- in criminal.
06-5306 +++$+++ 51654 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In criminal cases the time for taking an appeal is not specified by statute. It's imposed by Federal Rule of Appellate Procedure 4(b). But there's no statutory basis for it. There was up until 1988 a provision of Title 18 of the U.S. Code, Section 3772, that specifically authorized this Court to promulgate rules that would establish the time for filing a notice of appeal --
06-5306 +++$+++ 51655 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But in -- though of course, you'd have to confine it very narrowly, I take that doctrine, if there weren't a statute, you read it into the rule. So there is a statute and you read the statute as saying well there could be very some very narrow circumstances that Congress would have been willing to make an exception. For example it is a couple of days and the judge tells you, "do it" or lets you do it. It's roughly the same thing, isn't it?
06-5306 +++$+++ 51656 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well I think it makes a fundamental difference that there is a statute in place. And certainly with respect to circuit certiorari petitions coming from the court of appeals to this Court, this Court has recognized that distinction to be fundamental.
06-5306 +++$+++ 51657 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You're sure habeas cases are classified for this purpose as civil rather than criminal?
06-5306 +++$+++ 51658 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, there's no -- no dispute about that. And indeed if the -- if this case were classified as civil for purposes of -- I mean, as criminal for purposes of the time limit for taking an appeal, it would have been far out of time under Federal Rule of Appellate Procedure 4(b). Indeed the authority of the district court to have granted the reopening period 180 days later wouldn't have been present in the criminal context.
06-5306 +++$+++ 51659 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Looking at the rule, it does require these findings. Has that been interpreted to require that they be written on the record or is that simply something that's supposed to guide the district court?
06-5306 +++$+++ 51660 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the courts of appeals have not required that they be written on the record but have required that there be a basis appearing in the record for those findings. So, for instance, if Petitioner's counsel had filed a document asking to reopen in the time, but had not represented that he had not been informed of the judgment, then I think that if the court had granted the reopening, that could be set aside on appeal on the ground that there was no support in the record for such a finding. But I don't believe the courts of appeals have required there be explicit findings as opposed to findings that are implicit in the grant of the reopening. The point I was going to make about the certiorari petitions is that this Court's Rule 13.1 imposes a 90-day limit for filing a cert petition in all cases. It is not divided between civil and criminal. But this Court has recognized that the 90-day limit has a very different status is criminal cases than in civil cases. That is Rule 13.2 of the rules of this Court states that when a cert petition is jurisdictionally out of time, the clerk is directed not to file it. And Rule 13.2 cites USC 21.01(c). So the clear implication is that the Court recognizes the time limit imposed by statute in civil cases to be a jurisdictional limit. And the crucial point of Rule 13.2 is not simply that it uses the word jurisdictionally. It's that it gives an instruction to the clerk not to file the petition regardless of whether any other party objects. It's the very type of thing that a court will do as to matters of its jurisdiction, as to matters over which it has an obligation to take cognizance, regardless of the other party's objection. In criminal cases by contrast the 90-day rule applies under the rules, but the Court has recognized that it retains the authority to grant petitions that are untimely filed even in cases where the other party objects. The other thing I would say about 2107(a) and it's -- part of it is reprinted at page 16 of the Government's brief. In the last full paragraph of page 16, it says, the basic time limit for appeals in similar cases is set by 28 U.S.C 2107(a), which states that -- and then the part we haven't reproduced says except as otherwise provided in this section. And then it goes on to say no appeal shall bring any judgment order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed within 30 days. And the significance of this provision, this language, is it doesn't simply say a notice of appeal must be filed within 30 days. Language like that would conceivably leave open the question of what happens if the notice of appeal is untimely filed. This language actually says if a notice of appeal is not filed within 30 days, the appeal will not bring the judgment --
06-5306 +++$+++ 51661 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But it begins with the exception as provided in subparagraph (c).
06-5306 +++$+++ 51662 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. So we're not saying that the 30-day limit is absolute --
06-5306 +++$+++ 51663 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah.
06-5306 +++$+++ 51664 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- but we're saying that the rule specifies that if the various time restrictions are not complied with, the appeal will not bring -- I'm sorry, the appeal shall not bring the judgment, order, or decree before the court of appeals. This is specifically framed as a limitation on the authority of the reviewing court.
06-5306 +++$+++ 51665 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you think, if we did go to Thompson and looked at that, this would be a fortiori from Thompson, as described in Osterneck, was a case in which the judge simply said from the bench look, your -- your -- the new trial motion is timely, though it wasn't; it was out of by two days. While here, we have a formal court order, it is a formal order entered with a -- you know, stamp of the judge, and it says you have till the 27th to file.
06-5306 +++$+++ 51666 +++$+++ TRUE +++$+++ MR. STEWART +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, are two things we would say about Thompson. The first is that as this Court explained in its recent decision in Hibbs versus Winn, it's long been recognized that a timely motion for reconsideration will suspend the finality of the judgment and toll the time for taking an appeal. And the Court in Hibbs versus Winn further explained that under certain circumstances, even an untimely motion for reconsideration will have that effect, if the judge appropriately considers it on the merits. And Thompson can be explained as holding simply that where the Government does not object and the district court evinces an intent to treat the motion as timely and consider it on the merits, it will suspend the finality of the judgment I don't think Thompson has to read -- has to be read to stand for a broader equitable principle. The other thing I'd say about Thompson is that for better or for worse, the Government's brief in opposition in Thompson, and the case was decided on the cert papers, didn't cite 28 U.S.C. 2107; it relied exclusively on the time limit that was stated in the Federal Rule of Appellate Procedure. Therefore the Court in Thompson was not required to grapple with congressionally imposed limits.
06-5306 +++$+++ 51667 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Stewart. Mr. Mancino, you have four minutes remaining.
06-5306 +++$+++ 51669 +++$+++ FALSE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If this were a case where someone just missed the 30-day deadline, I don't think we would be talking. We are talking about a case where a judge properly found, properly ruled that notice was not given and had the authority to reopen the case. And we talk about mandatory and jurisdiction of the case. All that were involved in this case is how is the case moved from one court to another. And the -- was it moved properly in this case? The unique circumstances, I think you cannot find a more compelling case for unique circumstances. Did the party rely upon the court? Here you have a handwritten notation from the court, signed by the judge --
06-5306 +++$+++ 51670 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Mancino, does the record tell us how you got notice of that order?
06-5306 +++$+++ 51671 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it doesn't. But I mean, I did get notice of it. It came in the mail, but it doesn't --
06-5306 +++$+++ 51672 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You, you got that order in the mail?
06-5306 +++$+++ 51673 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the mail, correct. And that's why I believe the three days was added, thinking of the mail rule that we have three additional days to do it in connection with the case. And that's how I believe the, how the 17 days came up.
06-5306 +++$+++ 51674 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And I asked this once before: Did the document you received show the dates that it was entered on the docket, so you knew when the 14 days was running from?
06-5306 +++$+++ 51675 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, the only information it had was the printed -- the printed date by the judge. Did not show it was entered that same day.
06-5306 +++$+++ 51676 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yeah, but in the -- in this thing, it says entered on February 10.
06-5306 +++$+++ 51677 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yeah, that's correct. The docket does show that.
06-5306 +++$+++ 51678 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But how did you find out it had been entered on February 10? Because you did know that at the time you filed your notice of appeal.
06-5306 +++$+++ 51679 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I just went off what the date on the -- the handwritten date on the pleading we received from the court. It said February 10, so we just put it in there. Didn't go to the actual docket to see if, in fact, it was entered. As you can see, orders were not -- in this case were not entered on date that the judge signified anyway.
06-5306 +++$+++ 51680 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This is, this is all at the top of page 151 of the joint appendix, right? That's the that entire thing.
06-5306 +++$+++ 51681 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is the -- well, it is printed on that. But I mean, if you look at the original document --
06-5306 +++$+++ 51682 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yes. It was handwritten --
06-5306 +++$+++ 51683 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's a handwritten -- handwritten by the judge in, in the case. So --
06-5306 +++$+++ 51684 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But it says when it was signed by the judge. It doesn't say when it was entered on the docket, when it was entered by the clerk.
06-5306 +++$+++ 51685 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. It says when the judge signed it. That's correct.
06-5306 +++$+++ 51686 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it says it in the index, it says -- it says docket entries. 2-10, it says entered 2-10, on page 11. On page 11.
06-5306 +++$+++ 51687 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yeah, that's correct. But that's from the docket --
06-5306 +++$+++ 51688 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Received. So-
06-5306 +++$+++ 51689 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the document we received from the Court just has -- you know -- the handwritten notation on it, file your appeal by --
06-5306 +++$+++ 51690 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What would you, what would you have had to have done to find out when it was entered on the docket? Could you have accessed that electronically? Or would you have to go to the court, to --
06-5306 +++$+++ 51691 +++$+++ TRUE +++$+++ MR. MANCINO +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, probably I could not have -- at that time, I mean I could do it now, but at that time you'd have to go over to the courthouse, just like we walked on orders of appeal over to the courthouse, had it stamped by the clerk there, and figured that was the end of it and we were on our way to the Sixth Circuit in Cincinnati. Thanks.
06-5306 +++$+++ 51692 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Mancino. The case is submitted.
06-5618 +++$+++ 51696 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument next in 06-5618, Claiborne versus United States. Mr. Dwyer.
06-5618 +++$+++ 51698 +++$+++ FALSE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: The district court's 15-month sentence combined with 3 years of supervised release conditioned on drug treatments and the acquisition of a GED was a reasonable sentence. In the uniform and constant tradition of Federal criminal sentencing, the district judge in this case treated Mario Claiborne as an individual. She considered the guidelines and after doing so turned to the judgment that 3553(a) demands in every case. She issued a sentence to avoid unwarranted disparity, to impose just punishment, and to ensure that deterrence did not throw away Mario Claiborne's chances to resume his responsibilities to himself, to his family, and to his community. The court of appeals, in contrast to the district court's careful attention to the 3553(a) factors, focused solely on the guidelines. The court of appeals applied its extraordinary circumstances rule. That rule re-tethers sentencing to the guideline.
06-5618 +++$+++ 51699 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What would be your test of reasonableness for appellate review?
06-5618 +++$+++ 51700 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think a sentence would be reasonable if a reasonable judge on the facts and circumstances of that case would find that the sentence imposed was sufficient but not greater than necessary to satisfy 3553(a) standards.
06-5618 +++$+++ 51701 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It seems to me that gives very little weight to the goal, which I think is a congressional goal, of nationwide consistency in eliminating the disparities in the sentencing system which cause great disrespect to the justice system.
06-5618 +++$+++ 51702 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that the statute speaks of unwarranted disparity and does not speak in terms of uniformity. And there is necessarily a tension between the individualized sentencing that 3553(a) requires and concerns about nationwide uniformity. But I think that what distinguishes sentencing under the advisory guidelines system from the Presentencing Reform Act system are several. One is now we explicitly have purposes of sentencing and factors the judge must consider. 3553 didn't exist before that time. Secondly, in every case, as a practical matter, the guidelines are going to exert a gravitational weight because they are there. They must be considered as part of the statute.
06-5618 +++$+++ 51703 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can I substitute "substantial" for "gravitational" without offending your position or affecting your position?
06-5618 +++$+++ 51704 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't -- my position would be that 3553(a)(4) is the correct place for consideration of the guidelines. It's just one of seven factors. As a practical matter, I think it's going to get --
06-5618 +++$+++ 51705 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Kind of a weak law of gravity like the Moon. It's only at one-seventh. (Laughter.)
06-5618 +++$+++ 51706 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As a legal matter weak. As a practical matter, I think unfortunately it's going to be very strong. And I think one of the real dangers of an advisory guideline --
06-5618 +++$+++ 51707 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I guess the question is how strong should we say or can we say, or can Congress say it is?
06-5618 +++$+++ 51708 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that the strength should be no more than one of the 3553(a) factors, because I think the danger, particularly after 20 years of guideline sentencing, is that courts will routinely and mechanistically apply the guidelines instead of exercising their discretion, which now runs to the full limit of 3553(a).
06-5618 +++$+++ 51709 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then it seems to me that to accomplish the goal that you want to accomplish in this case, you almost remove the appellate courts from the process.
06-5618 +++$+++ 51710 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the appellate courts are -- I think Booker considered a very deferential standard of review. The cases that the Booker Court cited to illustrate the standard of review of reasonableness were all highly deferential decisions regarding revocations following supervised release, affirming sentences that were many times what the chapter 7 policy guidelines would require. The court of appeals necessarily must be deferential or I think it pushes the system back into a mandatory --
06-5618 +++$+++ 51711 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, suppose the court of appeals had done exactly what it did in this case, but it said, we're not giving any special weight whatsoever to the guidelines, we're basing this just on our own evaluation of the sentencing factors that are set out in the Sentencing Reform Act. Would there be a problem there?
06-5618 +++$+++ 51712 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think there would, Justice Alito, because I don't think that the role of the appellate court is to substitute its judgment for the application and weight applied to the 3553(a) factors for the district court.
06-5618 +++$+++ 51713 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's a principle that you derive from what? From the Sixth Amendment? From the Sentencing Reform Act? From where?
06-5618 +++$+++ 51714 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think it derives in part from the Sentencing Reform Act, which contemplated individualized sentencing.
06-5618 +++$+++ 51715 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The Sentencing Reform Act required, as enacted by Congress, required trial judges to apply the guidelines, to follow the guidelines. And you're saying that the Sentencing Reform Act now precludes appellate review of -- it gives the trial judges unlimited discretion or extremely broad discretion?
06-5618 +++$+++ 51716 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Certainly extremely broad discretion.
06-5618 +++$+++ 51717 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How do you get that out of the statute that was enacted to narrow their discretion?
06-5618 +++$+++ 51718 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Even under a mandatory guidelines system that this Court considered in Koon, it recognized that the Sentencing Reform Act also had an important goal of individualized sentencing. And the Court in Koon recognized that district courts in their institutional position have a special competence to determine what's ordinary in a case, what's unusual in a case. The court of appeals lacks that special competence. It sees only a tiny fraction of the number of guideline cases. It doesn't have --
06-5618 +++$+++ 51719 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So one of the guides for reasonableness review is what's ordinary in a particular type of case?
06-5618 +++$+++ 51720 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that what guides the court of appeals on reasonableness review is to look to the particular case and determine if the reasons on the record in that case, the district court's --
06-5618 +++$+++ 51721 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's impossible to do in the abstract. If you're just looking at a particular case, you have no idea whether 5 years is reasonable or not. There has to be a background to it so that you know that in this type of case, people usually get a sentence of 3 years or they usually get a sentence of 10 years. And it seems to me that what's ordinary is going to be a judge -- a driving fact in determining what's reasonable.
06-5618 +++$+++ 51722 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the court of appeals' job is to ensure that the district judge provides reasoned elaboration of its judgment on the facts of that case that establish that the district court had complied with 3553(a), and on the facts of that case, selected a sentence which is sufficient but not greater than necessary. I don't believe that it is the court of appeals' job, as was remarked earlier, to become a sentencing commission and begin to reexamine and reweigh district courts' decisions.
06-5618 +++$+++ 51723 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even if you're looking at not just the number, but the reasons. In other words, the question I asked earlier, you've got nine district judges, they all say we do not depart downward for military service, and you've got one district judge that says we do. It seems to me that if the court of appeals can't review that to bring about some uniformity in the factors that are appropriate to consider, then it's essentially a lawless system.
06-5618 +++$+++ 51724 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it is not lawless in the sense that courts of appeals need to determine whether in a particular case, the differences it finds are warranted on the facts and circumstances of that case, whether the district judge has consulted the guidelines, has looked at the history and characteristics of that defendant, has looked at the nature and circumstances of the crime. And if those reasons satisfy the court that a reasonable judge looking at those facts --
06-5618 +++$+++ 51725 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ On my particular case, what's the right answer for the court of appeals? They've got two cases before them. One, the judge departs three years because of military service. The prosecutor appeals. The other, the judge refuses to depart because of military service and the defendant appeals. Should those -- what should happen with those two cases?
06-5618 +++$+++ 51726 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the same process of review applies to each. And it may result -- and that process of review is on the record in that case, would a reasonable judge have arrived at that sentence? And that review may result in both cases being reversed, one, or the other, or neither being reversed.
06-5618 +++$+++ 51727 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where does that come from as a matter of law? That is, suppose -- now you can say I -- if you want, say my hypothesis is wrong, but if I start with an assumption that Congress did want the court of appeals to try to create greater uniformity in sentencing, and it wanted cooperation between the courts of appeals and the sentencing commission, indeed the sentencing commission itself is an effort to copy a system that exists in Britain where courts of appeals create a degree of uniformity. Suppose I start with that assumption and say that's what the guidelines were about and the reason that number 4 is in 3553, it's not just one factor among many. After all, it was attached to a bill that was the guideline bill. And indeed, the part we excised was a floor amendment that came along later to make it even tougher. So if I start with the assumption that's what Congress wanted, not what I wanted, Congress wanted it, now is there something in the Constitution that forbids it? That's where I start -- I am starting personally with that question in mind, always, if this is what Congress wanted, we should try to do it unless there's something in the Constitution that forbids it. And is there something in the Constitution that would forbid the court of appeals to do what on page 91 they did here, leaving the word extraordinary out of it? Now, just going through the different elements of this case and coming to the conclusion that what the district judge did was unreasonable?
06-5618 +++$+++ 51728 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think there is a constitutional problem with that. And it is that if -- it reinstitutes the mandatory guidelines system. And I think if there is to be an effectively advisory system, sentencing cannot center on the guidelines. The district judge needs to be free to accept or reject that advice and 3553(a), instead of the guidelines, becomes the focal point for sentencing.
06-5618 +++$+++ 51729 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's not mandatory. It says the district, the court of appeals judge says, now, let's think here. We have 8 -- 7 people on the sentencing commission that have really looked into that. And they think that in an ordinary course with this small amount of drugs, the person ought to get so many months. That reflects a lot of thought. Seems reasonable to us. And here the district judge is giving him half that or 40 percent of that without a good reason that we can find. The judge said he did it because it was just one little episode and we think there were many episodes. And that's basically their reason. Now, now -- what -- the Sixth Amendment forbids that?
06-5618 +++$+++ 51730 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Of course, the court of appeals did not adhere to your hypothetical in this case. In --
06-5618 +++$+++ 51731 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yeah --
06-5618 +++$+++ 51732 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Eighth Circuit in this case simply said it is not a guidelines sentence, it is an extraordinary variance and we are reversing. The district court has to consider the sentencing guidelines and generally that must be part of the reason -- elaboration of judgment, so they will necessarily be considered on appeal. But the notion somehow that simply because a sentence is in the guidelines, all disparity problems have been resolved, is clearly not true. As the amici briefs, and our brief have pointed out, even under a mandatory guidelines system, racial disparity increased, regional disparity increased. It's disparity that individualized sentencing, the judicial discretion necessary to do that kind of individualized sentencing, can counteract. And that is genuine uniformity. As -- as you pointed out in the Koon decision, or the Koon pointed out borrowing your language from Rivera, the district court's special competence to determine what is ordinary and unusual is exactly the kind of information the sentencing commission needs to determine whether a guideline works or doesn't work.
06-5618 +++$+++ 51733 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Aren't you really saying that the most weight that the guidelines can be given, or guidelines can be -- is that -- I apologize for my voice -- the most weight the guidelines can be given is, is the weight of necessary advertence? The guidelines, in effect, are at odds with the rest of 3553(a). The rest of them say individualized sentencing. The guidelines, in effect, says, no, sentencing by the guidelines. Therefore, in order to -- to break this, in effect, logical incommensurateness, on your view, I think the most that you can concede is that before a district judge sentences finally, he must show that he has considered the value of uniformity as something different from individualized sentencing, but that's as much as he can be required to do. Is that a fair statement of your position?
06-5618 +++$+++ 51734 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yeah. And I think 3553(a), in fact -- I expect Mr. Dreeben to say this -- talks about uniformity, twice, in the sense that both 3553(a)(4), which requires consideration of the guidelines, and 3553(a)(6) talks about unwarranted --
06-5618 +++$+++ 51735 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes. I -- I stand corrected here. I'm sorry.
06-5618 +++$+++ 51736 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I agree with you that it is a consideration -- and I'm not talking about a check list. I'm not saying that we just use a list and that's enough. There has to -- I think sentencing under an advisory system requires reason and judgment. We tried to stress in our brief that judgment is somehow different. It may involve fact-finding but is not the determinant, the automatic jury kind of finding that the guidelines require.
06-5618 +++$+++ 51737 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, as one of the themes that you advance, you indicate that if your approach is followed that the guidelines will then be adjusted over time. I assume they would be adjusted to be more precise, but then we are right back where we started because you want to give the guidelines very little effect. It seems to me, in a way, you're arguing against yourself. If your view is accepted and the result is considerable disparity, I suppose all that Congress can do is have mandatory minimums.
06-5618 +++$+++ 51738 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe that, that the results are going to be considerable disparity. Certainly no more disparity than existed under the mandatory guidelines which wasn't being addressed particularly. I think indeed there may be more non-guideline sentences, but less true disparity, because it really is kind of idle to talk about disparity unless you are measuring it against something. And 3553(a) provides those purposes, and true disparity is measured --
06-5618 +++$+++ 51739 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you think it is idle to talk about disparity before the Sentencing Reform Act was adopted? You remember those days.
06-5618 +++$+++ 51740 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do remember those days. And I think there are two significant points about that. One, judges sentenced in the pre-Sentencing Reform Act, knowing that their sentence wasn't the real time served. So that a judge may say 20 year sentence knowing the defendant was immediately eligible for parole and was going to get out soon. The real number was parole eligibility sentencing. So that looking at just the actual sentence imposed did not tell you very much about disparity. And none -- in the study that the sentencing commission in its amicus cited -- that study explicitly said that none of the studies looking at pre-Sentencing Reform Act interjudge disparity considered actual sentences served as opposed to actual sentences imposed.
06-5618 +++$+++ 51741 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yeah, yeah. But there -- you know, we can go back into that, but there was a whole history that people testified, tremendously, no opposition, virtually none, that you needed a judge wheel. Why do you need a judge wheel in New York if, in fact, the sentence didn't depend on the personality of the judge? And why did you get different sentences across the country which I don't -- I've never heard a possibility of explaining that the judges didn't understand what the parole commission was like. That's a different issue. So what -- what I'm concerned about is if we followed your position literally, what we're saying is that the Constitution of the United States prevents any effort to create uniform sentences throughout the country for people who different judges -- God doesn't tell us what the right sentence is. We don't know. There are reasonable sentences within a vast, vast range of possible sentences. And you're saying we have to go back to that. And that wasn't -- I'm looking, in other words, for you to tell me something that says we don't have to be back to that, but we don't have to make it that rigid either. And that's what I'm looking for, to be honest with you, and I haven't -- I'm not certain I get it.
06-5618 +++$+++ 51742 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe that sentencing under an effectively advisory system under the standards of appellate review that I've described, which I think is the standard Booker described, is in a sense an empty exercise on appeal, and leading simply --
06-5618 +++$+++ 51743 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Could you describe it again? Because I'm not clear what your answer was to what the appellate court stance is. I take it the appellate court would owe deference to the district court's determination?
06-5618 +++$+++ 51744 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
06-5618 +++$+++ 51745 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And no particular deference to the guidelines?
06-5618 +++$+++ 51746 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would -- yes, I would agree with that.
06-5618 +++$+++ 51747 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So what is it other than -- is this arbitrary and capricious?
06-5618 +++$+++ 51748 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that the court of appeals will first look to ensure that there was reasoned elaboration of a judgment complying with 3553(a), that the district court considered all of the factors and arrived at a judgment that this sentence was sufficient but not greater than necessary. Secondly, I think that the court of appeals under that deferential standard of review that Booker described would look to see if this is a sentence that a reasonable judge would find sufficient but not greater than necessary on those facts.
06-5618 +++$+++ 51749 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ But the -- one problem is that two judges, both reasonable, might approach the facts in this very case differently. That is, one as in this case might think as she expressed it, to sentence him to more than 15 months would throw away his life. Another might say it's -- it's unreal to assume that he just sold 23 grams of crack when he admitted that he had been out on that same street every night for two and a half weeks. So the quantity is much larger. And he was in that sense a repeater, so I'm going to sentence him to at least the bottom of the guidelines, nothing less. Those could be reasonable determinations, two different reactions that judges would have to the same set of facts.
06-5618 +++$+++ 51750 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. That is correct. And I think that is what will result under an effectively advisory system. But here we're talking --
06-5618 +++$+++ 51751 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ In any case, you -- you, you are not driven to the alternative that Justice Breyer suggests, that there is no way to achieve absolute uniformity. It's very easy. It was what the dissenters in the Booker remedial phase urged, which is use facts found by the jury and you can have the sentences as rigid as you like. It is really only, only when you want to let the facts be found by the judge that you come into the difficulty that, that we're arguing about. But it's certainly not decreed by logic or by heaven that there is no way to achieve determinate sentencing. There certainly is.
06-5618 +++$+++ 51752 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I agree, Justice Scalia.
06-5618 +++$+++ 51753 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Do you agree? Because I think that system would, in fact, give total sentencing power to the prosecutor, who would determine the sentence by the kind and degree of evidence that he introduced and what he charged. So I agree that that might produce some kind of judicial uniformity, but only because the prosecutor would have total power to decide what the sentence will be.
06-5618 +++$+++ 51754 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I also appreciate the dialogue. And --
06-5618 +++$+++ 51755 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You don't -- you don't have to engage in our dispute here. (Laughter.)
06-5618 +++$+++ 51756 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ We're pointing out there are problems to every solution. And that's why I'm still looking for the --
06-5618 +++$+++ 51757 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And -- and one of the serious problems in the solution that Booker chose is that while judicial discretion, which I think 3553(a) requires and mandates, and an advisory system requires, that, too, doesn't deal with the necessary exercise of prosecutorial discretion which has an enormous thumb on the scale, and which the district court, in the day to day work of the criminal system in the courts, in the district courts, has a far greater appreciation for, than a court of appeals would.
06-5618 +++$+++ 51758 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Dwyer, before we get to the prosecutor, you were candid in saying a district court -- different district judges could act reasonably, one of them giving whatever it was, 33 months, and the other giving 15 months, both of those would be reasonable and could be affirmed on appeal. But one of, one of the arguments that was made by defense counsel here was just there was -- there is an irrational disparity between the penalty for crack and the penalty for powdered cocaine. Your predecessor thought that was so wrong, he thought it was unconstitutional. I think at the very least you ought to take into account that if this man were distributing or possessed for distribution powdered cocaine instead of crack, the sentence range, the guideline sentence range would have been six months to a year. Now we know that Congress wanted to retain that disparity. Is a district judge free to say under advisory guidelines, I am going to ignore the difference, I'm going to treat this defendant as though he possessed powdered cocaine?
06-5618 +++$+++ 51759 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that the judge in the obligation of imposing an individual sentence must consider the advice of the guidelines but must also be free to shape and tailor that advice as the circumstances of that case require.
06-5618 +++$+++ 51760 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, specifically, can you take into account, can he say I'm going to treat him as though he possessed powdered cocaine? Can he do that? Yes or no?
06-5618 +++$+++ 51761 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
06-5618 +++$+++ 51762 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Even though we know that Congress didn't want that to happen?
06-5618 +++$+++ 51763 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, because I think if the judge can elaborate reasons to justify that judgment in that case --
06-5618 +++$+++ 51764 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's got nothing to do with that case. That's got something to do with a judgment apart from the particulars of the case about whether crack should be treated the same as powdered crack cocaine. It's got nothing to do with the individual case.
06-5618 +++$+++ 51765 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I beg to differ, Chief Justice Roberts, because the differences were predicated on assumptions about the type of individuals who would engage in that. And the court in her experience could look at it and say you aren't the typical crack defendant, you are more like the people who come before me who are involved in powdered cocaine, or you don't possess the violence, the weaponry and the other things that justified Congress's decision to create disparate sentences for these two kinds of cocaine.
06-5618 +++$+++ 51766 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I think you ran away from Justice Ginsburg's hypothetical just a little bit. Let's assume that Congress wants to keep this distinction and let's assume that there's no constitutional problem with the distinction. There might be, but let's assume. Can the judge simply say, I ignore that congressional -- congressional judgment is wrong. I'm not going to do that.
06-5618 +++$+++ 51767 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that the district judge's role is to make categorical pronouncements.
06-5618 +++$+++ 51768 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is the judge permitted --
06-5618 +++$+++ 51769 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ To what extent is the Congress's purpose later than the Congress that enacted the statute we're construing? The statute we're construing was enacted by one Congress and these expressions came later.
06-5618 +++$+++ 51770 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I would resolve the problem by saying that the district judge must consider the guidelines. The district judge doesn't sit in review of the policy. It has to apply it to a specific person. In a particular case, as in Mario Claiborne's, that policy produced a sentence that would have been too great. And the application had some numbers to it, so she said it was more serious because it was a crack cocaine case, you're going to get more than somebody who was involved with powder would get, but you don't need to get as much as the guidelines call for, for the reasons that she expressed on the record at the sentencing. If I could reserve the balance of my time, unless there are other questions?
06-5618 +++$+++ 51771 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Dwyer. Mr. Dreeben.
06-5618 +++$+++ 51773 +++$+++ FALSE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: This Court in Booker concluded that the remedial severing of the statute's provision for mandatory application of the guidelines and a provision governing the standards of review on appeal rendered the statute constitutional. It further implied a standard of review of reasonableness of guideline sentences on appeal, and it did not elaborate what that reasonableness requirement means. The Government submits that the best interpretation of a reasonableness form of review would be one that conforms as closely as it can to Congress's original intent of minimizing and eliminating unwarranted sentencing disparities between similarly situated defendants.
06-5618 +++$+++ 51774 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ As closely as it can, and the "as it can" depends upon violation of the Sixth Amendment by entitling defendants to sentences determined by facts found by a judge instead of a jury. Suppose in this case the court of appeals instead of disallowing the lower sentence, approved it? And then in the next case that comes up involving what was the small amount of equivalent, 5.26 grams of cocaine powder rather than crack, okay? Suppose in the next case it would have been 30 grams of powder. And the district court judge once again departs just the way the departure was here, and the court of appeals says no, that departure is unreasonable. You now have circuit law which says 30 grams, you get the guidelines sentence; 5.26 grams, you're entitled to a lesser sentence. Okay? Why isn't -- why haven't we fallen back into the same problem that produced Booker/Fanfan? You have fact findings being made by the judge. It's a judge who decides whether it's 30 grams or 5.26 grams. What difference does it make whether that factual difference produces an entitlement to a sentence on the basis of the guidelines or on the basis of an opinion by or a series of opinion by a court of appeals? Isn't the Sixth Amendment equally violated?
06-5618 +++$+++ 51775 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, as I think we talked about in the last argument, in theory it could be if this Court concludes that judicial determinations on appeal are equivalent to guidelines promulgated by a commission or statute, and if what the court of appeals does is essentially function as a sentencing commission, literally prescribing particular levels of punishment for recurring sets of facts. The Government's submission here is not that the court of appeals has to do that in order to apply a proportionality principle. A proportionality principle will look to all of the facts of the case and will try to get a handle on, is this a reasonable sentence in response to all of the facts and circumstances that the judge articulated within --
06-5618 +++$+++ 51776 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But if you have two cases that are in other respects similar, and the court of appeals has held 5.26 is too little to apply the guidelines, it's okay to depart downward the way this judge did, it seems to me that the next case that comes up, the defendant has an entitlement to that lower sentence.
06-5618 +++$+++ 51777 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, he doesn't, Justice Scalia, because the second defendant may not encounter a judge who concludes that that quantity warrants the same level of leniency or any leniency at all. That judge will retain the judge's classic discretion to look at the totality of the facts and conclude whether a sentence that would be below the range is a reasonable sentence. And unlike a situation that some of us might prefer in which the court of appeals would ensure that like cases are treated with reasonable consistency, the system of reasonableness review on top of advisory guidelines will not produce perfect levels of consistency. And what the defendant is entitled to under the Sixth Amendment rulings of this Court is knowing that if the law says if I commit this crime and these are the facts that support it, my level of sentence is this and no higher, that any higher sentence that's produced by a fact finding gives him a jury trial entitlement. That's what the Sixth Amendment entitles you. But no defendant who commits a crack offense can say that even after a series of court of appeals rulings that mark out various points of reasonableness. That defendant will not know whether the judge that he or she appears in front of will give the same kind of weight to those facts as some other judge did who was affirmed or reversed. Nor will that judge be able to say what is the constellation of policy and factual reasons that this particular judge will find in announcing the judge's sentence. So I don't think that a proportionality principle runs afoul of the Sixth Amendment. And I don't think that it runs afoul of anything in 3553(a) or any other part of the statute. What the Court is left with is the task of interpreting reasonableness, and I submit it should ask the same question that it asked in Booker itself: Which alternative, the Petitioner's alternative in this case or the Government's, conforms more closely to Congress's original claim in the Sentencing Reform Act? The Petitioner's version of appellate review as I understand it is very light review, if at all, of the substance of what the district judge does. It may reach a truly extreme case such as if a judge said a second degree murderer, I think probation is the appropriate sentence. Perhaps the Petitioner would concede that that would be arbitrary and irrational; but beyond such an extreme case that it is so unlikely to arise that Petitioner can feel free to give it away, Petitioner gives the Court nothing, and gives the courts of appeals nothing to apply standards to determine whether a particular sentence is reasonable. And that is what the court of appeals have been reaching for when eight of them have adopted this proportionality principle.
06-5618 +++$+++ 51778 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask this question: It seems to me that in sentencing there are two different broad categories of decision that the judge has to make, one involving the severity of the crime, and the other the characteristics of the particular offender. And might it not be the case that you give a greater presumption of following the guidelines when you're talking about the severity of the offense, and a greater deference to the trial judge when you're evaluating the factors of the individual that might affect the sentence? There might be a difference in the --
06-5618 +++$+++ 51779 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think at a high level of generality, that is true. Because what the sentencing commission is good at is taking paradigmatic circumstances and assigning them a numerical weight that will transfer into a sentence. And what the strength of the district judge is is looking at the defendant in front of that particular judge and seeing how that person's characteristics may map onto the policies of sentencing. But I don't agree that that distinction would support a two-track form of appellate review that would give the district judge greater deference to take personal characteristics into account and to impose widely varying sentences. That is exactly the situation that we had in the pre Sentencing Reform Act era when any district judge could choose whatever policies of sentencing appeal to that judge, find the facts, and impose a widely disparate sentence. And as the Court well knows, there was no appellate review of that exercise of discretion unless it could be shown that the judge didn't exercise discretion at all. Now it is not an exercise of discretion if a judge simply says for this crime, I always give the same sentence. That would not take into account the full range of facts and factors that are present in the sentencing court and as a result, that wouldn't be an exercise of discretion. But in the pre Sentencing Reform Act era, the judge had pretty much plenary reign to decide what facts mattered. If we continue with that same sort of deference on appeal in the Booker remedial opinion, then it's hard for me to see how appellate review can serve any valid purpose of channeling and ensuring some consistency and uniformity in the way district judges impose sentencing.
06-5618 +++$+++ 51780 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What do you think about taking some of the Rivera ideas -- I'm slightly hypothesizing this -- and following up with what Justice Stevens said. You'd say look, one thing a district judge can't say, he can't say that I believe the guideline is right for a typical case. And I think this is a typical case. And I won't follow the guideline. You couldn't think those three things?
06-5618 +++$+++ 51781 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I agree.
06-5618 +++$+++ 51782 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So one big power a judge has that they didn't have before, after Booker, is to say the guideline itself is unreasonable. So we're -- let's just say -- and there if they say that, the district judge could decide whether or not, the court of appeals could decide is the guideline reasonable or not reasonable. But leave those cases aside. I imagine they'll be few and far between. Now we take one they assume is reasonable. And now unlike the past, the judge has to do three things. One, to give the kind of thing that -- the reason he's not following the guideline, which he admits is reasonable for a typical case. So what's the kind of thing that leads you to think yours is not typical? And he says it. And then he has the evidence as to the related facts. And then he has the degree of departure. As to the first thing, the court of appeals could review it and decide whether it is or is not the kind of thing. As to the second and third, they also could review it but only after giving considerable weight to what the district judge thinks about the case in front of him. Now maybe that's -- I mean, you might not have a reaction to that. I'd have to sort of think about it.
06-5618 +++$+++ 51783 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Breyer, if the system that you're describing is a replica of the system that existed under Koon versus United States --
06-5618 +++$+++ 51784 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Not quite --
06-5618 +++$+++ 51785 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- then it runs into the same problem that led to the constitutional problem in Booker. Where I think I would amend Your Honor's proposal is that if the judge concludes that this is a typical case but the guideline really doesn't prescribe what I think is a reasonable sentence and here are the reasons why, in the pre-Sentencing -- in the pre-Booker system, that could have been problematic legally. Today, it is not forbidden. But what it should be subject to is a reasonableness review check on appeal that take a look at what are the reasons that the district judge articulated for that sentence.
06-5618 +++$+++ 51786 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why, why do we assume that the district judge cannot depart from the guideline recommendation unless he thinks the guideline recommendation is unreasonable? He doesn't -- does he have to find it's unreasonable? There can certainly be two reasonable sentences; and he's under no obligation to select the guidelines sentence, is he?
06-5618 +++$+++ 51787 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
06-5618 +++$+++ 51788 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So he doesn't have to determine that it's unreasonable. I don't think we should approach the discussion as though that's, that's the situation.
06-5618 +++$+++ 51789 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do think, though, that the Court should be concerned about each district judge formulating his or her own set of personal sentencing guidelines and then applying them in the court to the cases that appear on that judge's docket without any check on appellate review to ensure that, although the sentence might be in some possible world reasonable, it's out of whack with what the Sentencing Commission has prescribed and what other district judges are doing. If there is no check on appeal, then I do think that the clock has been turned back to the 1983 era before the Sentencing Reform Act; and that does not seem to me a reasonable interpretation of what the Booker remedial opinion thought it was accomplishing. What the Booker remedial opinion said that it was accomplishing was providing an important mechanism that Congress itself had intended, namely appellate review, in order to iron out sentencing differences. And our submission is that inherently means some form of substantive proportionality review.
06-5618 +++$+++ 51790 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's the other thing I'm not certain about, the proportionality, and the reason I'm not certain of it is I'm not certain what it means. That is, it sounds nice, as if you're saying something, but proportional to what? I mean, I can think of two problems. One problem, of course, is that the chart in the guidelines is written on a logarithmic scale and that means that if you move from one level, from 9 to 10, it's 3 months or 2 months; if you move from 29 to 30, it's 2 years. Now, whether you're at 29-30 or whether you're at 9 and 10 might depend upon things that just have nothing to do with your reason for departure. You might have added on something for having a gun and your reason for being lenient might have to do with the person's having a gun. So you're going to say it make a difference whether you were high up or whether you were low down, when your reason for departing has nothing to do with whether you're high up or whether you were low down? You see? It doesn't actually work, I don't think, proportionality review, because it's so hard to say what's proportional.
06-5618 +++$+++ 51791 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think what is proportional is a matter of common sense, and the eight circuits that have been using this rule have not had a great deal of difficulty in noting that you look at the extent to which the sentence varies from the guidelines range, you look at the absolute amount of time that's involved, and have a sense of is this a significant deviation away from what the guidelines would actually describe.
06-5618 +++$+++ 51792 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, why use the word "proportional," because the other thing is what the Chief Justice brought out, is that why is it that if a person has a bad reason, I mean, why should a bad reason justify a little departure rather than a lot? And if he has a good reason, well, why doesn't it justify a lot just as much as it might justify a little?
06-5618 +++$+++ 51793 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the sentencing court articulates a bad reason, namely a reason that's irrational or one that does not respond to facts of the case, then that really shouldn't justify the sentence at all and what the court of appeals should do is vacate it, send it back for resentencing, and allow the district court to articulate the reasons why the sentence that the court now chooses to impose is an appropriate sentence under 3553(a).
06-5618 +++$+++ 51794 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Dreeben, if we could focus on the facts of this case and what the district court appeared to do, she made a kind of proportionality judgment, too. She said this is a young man. It's his first offense. He has a good family relationship, a good work record. I am making a determination that will put him away for a significant amount of time. But I'm trying to figure the point at which he will lose touch with his family, with his work, he will be thrown away. That was the judgment that she made. She tried to make a sentence that would be significant, 15 months, but that would not be so long that it would put him out of touch with his children and his wife and his work. Now, in -- by some measures that would be entirely reasonable. But on your measure, it isn't reasonable.
06-5618 +++$+++ 51795 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. And I think, Justice Ginsburg, you've done a better job of articulating a justification for the sentence than the judge's own articulation, which did not focus on family separation and employment to the degree that you have now articulated it. What the judge did was focus on the quantity of drugs and the fact that the defendant didn't have any criminal history and that he qualified for the safety valve. She also said, without specifying any other cases, that other cases that have come before my court have had -- you know -- perhaps larger quantity of drugs and very different sentences. When a court of appeals is asked to review that line of reasoning and try to decide whether the outside the guidelines sentence is reasonable, it makes sense for the court to ask, do we know anything, for example, about what this judge is saying about other cases with other drug quantities? There's no specifics in the record that enable the Court of Appeals to measure the accuracy or the validity of that observation. It's also relevant for the court of appeals to say the guidelines range itself has taken into account all of the factors that this judge has previously noted and what has happened in the sentence is that the judge has varied widely from the sentence for reasons that the commission already took into account. Now, that doesn't prohibit the judge from relying on those facts, but it does mean that the farther the sentence goes from the guidelines range the more likely there is to be unwarranted disparity.
06-5618 +++$+++ 51796 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But you did leave out what -- she didn't elaborate on it, but she said, I would be throwing him away. And I take it what she was saying by that is it would be -- he would be incarcerated beyond the point where he could reintegrate into the community.
06-5618 +++$+++ 51797 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, this brings me to my last point about this particular sentencing, which is that in this very case Judge Jackson looked at the defendant. She said, candidly I don't know really very much about you other than what I've learned about in the presentence report and I can't tell whether you're unlucky or you're stupid, and then effectively gave him a sentence that reflected, you know, a tremendous indulgence of a presumption that maybe this kid needs a wakeup call and nothing more. What she ignored is his own proffer in the safety valve that he had been on a street corner for 2-1/2 months selling crack cocaine, that he was arrested and placed into the State system, put into a pretrial diversion program through a drug court, in essence being said, here's your chance, you know, straighten up, we are going to be lenient on you, we're going to give you an opportunity to reintegrate with your family, and what did the defendant do but get caught within 6 months with 5 grams of crack. And on that record -- and this is what the court of appeals said -- there's a disconnect between the judge's conclusion that, with little information more than what she had in the PSR, the kid deserved leniency versus the fact that he had already had that chance and he had not --
06-5618 +++$+++ 51798 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but didn't the court of appeals draw the inference that he had been distributing drugs during that 6-month period and that was not supported by the record? Am I wrong on that?
06-5618 +++$+++ 51799 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Stevens, we're not relying on the inference of the --
06-5618 +++$+++ 51800 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Would it have been error for the court of appeals to find a fact like that that was not supported by the record and didn't it do it in this case.
06-5618 +++$+++ 51801 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, supported by the record is something of a judgment call. You'd have to assume that Mr. Claiborne was found by the police, 6 months after he had previously been arrested for crack offenses, holding a 5-gram bag of crack and that was the very first time after his arrest that he had been in possession of drugs, that just he got extremely unlikely, the police caught him.
06-5618 +++$+++ 51802 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And the court of appeals is willing to draw a factual conclusion that he had in fact distributed during that 6-month period?
06-5618 +++$+++ 51803 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's right. And I would say that a reasonable fact-finder could draw that conclusion.
06-5618 +++$+++ 51804 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But should the court of appeals act as a fact-finder in that posture of the case?
06-5618 +++$+++ 51805 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not in my view. And I think on this record that's not a fact that we're relying on. It's not a fact that the Government --
06-5618 +++$+++ 51806 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is it not possibly a fact that would justify the conclusion that they committed error?
06-5618 +++$+++ 51807 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This aspect of the court of appeals opinion in my view is not essential to the judgment that it reached, which is correct.
06-5618 +++$+++ 51808 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It may not have been essential, but it may have contributed to their judgment.
06-5618 +++$+++ 51809 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It may have, but what they did not mention is an equally validate reason for concluding that this is a defendant who is in effect a recidivist even though he had no criminal history. He had been previously arrested for crack distribution crimes. He had admitted that this was not -- the occasion of his arrest wasn't the first opportunity that he had to deal crack. He'd been doing it for 2-1/2 months. And the judge essentially turned all of those facts off. She did not really factor that into her sentence at all. And the court of appeals, although it may have fastened on the wrong time frame in concluding that this defendant was in effect a recidivist and not the sort of blameless ingenue that the trial judge had treated him as, the record does indeed support the court of appeals' central conclusion, which is this defendant, despite his criminal history, really looks more like a recidivist. And when you're talking about a defendant whose mandatory minimum sentence would have been 5 years, but who gets out of that sentence because he satisfies the safety valve which allows defendant who is a first-time offender and meets certain other requirements to get a sentence under the mandatory minimum, that defendant's culpability had already been substantially reduced under the guidelines because of the safety valve and because of his criminal history. And the judge basically said: I'm going to take a chance with him and give him a much lower sentence than what the guidelines described. Our view is the judge can look at the facts she looked at, but she went down to a level that is productive of unwarranted disparity.
06-5618 +++$+++ 51810 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask just one other question? I do not understand you to argue that the court of appeals can apply a presumption of unreasonableness just because there's a departure.
06-5618 +++$+++ 51811 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. We're not arguing for a presumption of unreasonableness on appeal. We're arguing for a presumption of reasonableness for a guidelines sentence. For an out of guidelines sentence there is no presumption that it is unreasonable, but the court of appeals under a proportionality analysis would look and require increasingly strong reasons with the increasing degree of variance from --
06-5618 +++$+++ 51812 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ That's the part, they said that. An extraordinary reduction must be supported by extraordinary circumstances. What worries me about that it sounds like a slogan. I would think an extraordinary reduction must be supported by whatever reasons that justify the extraordinary reduction, period. And it also sounds like you're going to start getting a mechanical set of charts and things, which is going to be a true nightmare, and if we really were to repeat that it would take on a tremendous force of generative law which would worry me quite a lot because I just think it's too complex to reduce to a formula. What you want is a reason that supports the sentence. It is --
06-5618 +++$+++ 51813 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think you want a better reason for a sentence that is farther away from some mean.
06-5618 +++$+++ 51814 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Better than what? Better than justifies it?
06-5618 +++$+++ 51815 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Perhaps the best way to do this is to give a example. Suppose that the shoe were on the other foot. Suppose that Judge Jackson had looked at this defendant and said, you know, this defendant did not learn from his experience. He was given leniency in the State court. He didn't take advantage of that opportunity. His statutory maximum is 20 years and I'm going to give him, maybe not the statutory maximum, I'm going to give him an 18-year sentence, or suppose she said a 15-year sentence or a 10-year sentence. I submit that in that circumstances the Petitioner would be here saying, well, the guidelines recommended a sentence of between 37 and 46 months and this is a dramatic increase from that and the reason is not something that's particularly unusual, it's a very usual reason, and as a result, the magnitude of this deviation is unreasonable. And I have no problem with a Petitioner making that argument if that's what happens to his or her client. My problem is that without that kind of anchoring effect of the guidelines in a proportionality review, a court of appeals has almost nothing to work with.
06-5618 +++$+++ 51816 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But what happens when that case -- it goes back down to the district court. The district court says well, okay, not 10 years. Nine years. Okay? It goes back up. I mean, you know, when do we end this game? Or does the court of appeals take over the sentencing function and specify -- you know, five years?
06-5618 +++$+++ 51817 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, I don't think that the courts of appeals are, at least absent very unusual circumstances, to act as sentencers to specify a sentence. There have been a couple of instances where courts of appeals have said this is really the bottom sentence that we can see that would be reasonable on this particular constellation of facts. I think that reflect as sense of potential impatience with a ping-pong game that would occur if the court of appeals says your sentence is unreasonable, Mr. District Judge, and the district judge imposes a sentence that's one day lower. Another solution to that problem would be reassignment to a different judge who would start with a clean slate and could read the court of appeals' opinion and apply the section 3553 factors. We are not suggesting that the court of appeals should assume the sentencing role here. All we're suggesting is that the court of appeals needs to have some intelligible legal principles that allow it to identify and select unreasonable sentences versus reasonable sentences; and when you have wide statutory ranges as you do in the Federal system, if you don't have the guidelines describing at least a benchmark, it's not more, then I don't think courts of appeals have a good, coherent, consistent way of fulfilling their tasks. And if the courts of appeals can do that, can look more with greater scrutiny at a sentence the farther that it goes outside the guidelines range, without violating the statute and without violating the Constitution, then it seems to me the only thing for the Court to ask at that point is which approach, that approach of proportionality, or and approach that basically says appellate review is procedural only, absent the most glaringly aberrant sentences, conforms to Congress's intent of producing a greater degree of uniformity and consistency.
06-5618 +++$+++ 51818 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, it wouldn't be, just be procedural only. You -- you could say procedural plus, you know, certainly review of the facts on, on which the district court was -- was proceeding. So you, if you could find that the determination that this was just a good kid who made a mistake is, is an unreasonable finding, you could reverse for that reason.
06-5618 +++$+++ 51819 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that is true. But I submit that -- I would like to hear what Petitioner has to say. If Petitioner's client had been given 10 years in this case, I have no doubt that Petitioner would be arguing that's an unreasonable sentence. But I don't see how you reach that judgment assuming that the court has articulated a rationale that's consistent with section 3553 and a rational interpretation of the facts, unless you have the guidelines as an anchor for the analysis. Thank you.
06-5618 +++$+++ 51820 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Mr. Dreeben. Mr. Dwyer, you have two minutes remaining.
06-5618 +++$+++ 51822 +++$+++ FALSE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that Justice Breyer put his finger on one of the central problems with the Government's proposed rule. And that is what does it mean? The Government talks about substantial variances in Petitioner's case. The court of appeals spoke of it as extraordinary variances. And the Government doesn't suggest to us that substantial means the same thing or means something different from extraordinary. And we've already demonstrated in our brief why relying on percentages as the court of appeals also did, is pointless, because, one, if -- the arithmetic gets very complicated at the low end and the percentages just don't make any sense from a proper application of a rule of law. The Government's proposal, apart from having no basis in the statute and no basis in Booker, is just not susceptible of any kind of application because nobody really knows what it means.
06-5618 +++$+++ 51823 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What about Mr. Dreeben's parting challenge? What are you going to do if your client gets 10 years? You're going to argue that's an extraordinary departure from the guidelines, right?
06-5618 +++$+++ 51824 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm certainly going to argue that under the facts and the record before the Court, that was not a sentence that was sufficient but not greater than necessary. And I think the absence of a prior record, the young man's work history, all of those factors, the low amount of crack cocaine involved, his age, all of the things which as Justice Ginsburg pointed out that judge relied on in her sentencing decision, could not possibly support a 10-year sentence. And you know, it is easy to do this in a, in a hypothetical sort of way. But the district judge -- and this was a very experienced district judge -- looking at the person in the eye, made a call based on judgment. And that call was not treated with any respect in the court of appeals. It was sloganeered away as an extraordinary variance. And -- because the court of appeals focused only on the guidelines. The -- this Court in crafting the appellate standard can't just look to determine what Congress might have intended because of the constitutional problem that lurks behind it. And that constitutional problem is a resumption of mandatory guidelines. Thank you very much.
06-5618 +++$+++ 51825 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Counsel. The case is submitted.
06-5754 +++$+++ 51829 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++  +++$+++ We'll hear argument first this morning in case 06-5754, Rita versus United States. Mr. Cochran.
06-5754 +++$+++ 51831 +++$+++ FALSE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: Under the system described in Justice Breyer's opinion for the Court in Booker, judges would no longer be tied to the sentencing range indicated in the guidelines. That, of course, was a passage from this Court's recent decision in Cunningham versus California. Mr. Rita is asking the Court in this case to reiterate in strong enforceable terms that it meant what it said in Booker, that the guidelines are merely advisory provisions. The Government's assertion that the guidelines deserve a presumption of reasonableness was nothing more than an unfounded claim put forth to justify its efforts to try and thwart the Booker decision. The ink wasn't given a chance to dry on the Booker decision before the Department of Justice issued a memo to all of its Federal prosecutors directing that they adhere to the guidelines and that they seek sentences within the guidelines in all but extraordinary cases. The district court below in this case did not treat the guidelines as advisory when it imposed a 33-month within guideline sentence. The district court did not consider Mr. Rita's military record, the fact that he had been a combat soldier in two wars.
06-5754 +++$+++ 51832 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How can you say that, given that at the sentencing hearing, that military record was brought out, his physical ailments were brought out, his activity in law enforcement, all that was brought out? And indeed, the judge was assisting the defense attorney to make the case clearer when it was presented.
06-5754 +++$+++ 51833 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the district court, Mr. Rita did put forward evidence of his military records, health concerns, he -- the district court received that information. The district court did not consider that information because there's nothing in the record where the district judge weighed any of that information to determine what -- what effect to give any of it.
06-5754 +++$+++ 51834 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, you know, you don't get a summary judgment case all the time. I used to get them, and the district court would hear all the arguments and write down the word denied. Does that mean he didn't consider the arguments? That's a very common thing. Here we have a district judge, he hears all the arguments. The attorneys brought it out. It's in the file. He reads the presentence report. It's all there, and the judge says, on balance, I'm going to go apply the guidelines. So how can you say he didn't consider them?
06-5754 +++$+++ 51835 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Breyer, the district judge didn't say that we're going to weigh all of the stuff, and I --
06-5754 +++$+++ 51836 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, he doesn't in a summary judgment case either. I mean, I've had quite a few of them, I used to, I think, where they just wrote denied. That was the opinion.
06-5754 +++$+++ 51837 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in the instance of a summary judgment matter, we don't have 3553(c), that requires the district court to state in open court in front of the defendant the reasons for the imposition of sentence.
06-5754 +++$+++ 51838 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Now, he says the reasons are these. I think that the guidelines sentence is a reasonable sentence. Would that be sufficient?
06-5754 +++$+++ 51839 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would not, Your Honor.
06-5754 +++$+++ 51840 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Why not? What in the statute or the law or the Constitution says that a district judge, although it might be good form in a difficult case to write more, but I've often written opinions where I say, and the remaining arguments we feel are not sufficient to change the result. That means I don't think they're that great an argument, and I don't answer every single one.
06-5754 +++$+++ 51841 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With regard to the first question Your Honor posed, it's not sufficient for the district court to simply state conclusions, which is what happened in this case, that --
06-5754 +++$+++ 51842 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where in the law does it say that?
06-5754 +++$+++ 51843 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, in 3553(c), it requires that the judge give the reasons for the imposition of the particular sentence.
06-5754 +++$+++ 51844 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Where -- I'm looking at that. It says shall consider. Am I missing something?
06-5754 +++$+++ 51845 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The preamble states --
06-5754 +++$+++ 51846 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can you give me your page cite?
06-5754 +++$+++ 51847 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, Your Honor, on page 3-A of Petitioner's brief in the appendix. It states, "the court at the time of sentencing shall state in open court the reasons for its imposition of the particular sentence." And that's what we contend requires the district court to explain the facts that the court is relying on to impose the particular sentence in the case.
06-5754 +++$+++ 51848 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So it isn't sufficient, in your view, that the judge just says, the reason I imposed this sentence is that's the guideline sentence, and I think in this circumstance it's reasonable?
06-5754 +++$+++ 51849 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. Because the guidelines don't take into account all the myriad facts, and in this case, did not take into account the military record, the employment record, Mr. Rita's health concerns. The guidelines specifically did not take those into account.
06-5754 +++$+++ 51850 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ I think these other factors that have been brought out, while they're serious factors, I don't think they're enough to warrant a different sentence. Suppose he adds those words?
06-5754 +++$+++ 51851 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think the --
06-5754 +++$+++ 51852 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ What I'm worried about basically is, I don't think in the law there's a special category that requires a judge to give special reasons in a guideline case. I think it's the same as any other matter. Judges do normally give reasons. And I'd worry a bit about creating a special situation where district judges have to do something unusual.
06-5754 +++$+++ 51853 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think that this is unusual, Your Honor. I think the court has to explain the rationale for imposing the sentence, and not only does it have to do so in court, in front of the defendant, so the defendant understands the sentence that he is receiving --
06-5754 +++$+++ 51854 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, I get where you're going. Can I say this in an opinion, would this satisfy you? And of course, like any other matter, judges do normally give reasons. They do normally reject arguments with reasons, and it's the same here. Would that satisfy you?
06-5754 +++$+++ 51855 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it would have to be specific to the issues raised by the parties. And in this case, at a minimum, the judge would have to address the three issues that Mr. Rita put forward and discuss those: His military record, his employment, his health concerns. It would have to address any issues that the Government would raise, and any issues that the district judge was considering that maybe neither party had raised to the court as well.
06-5754 +++$+++ 51856 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How do you reconcile the language in the prologue of (c) which says, the court shall state the reasons, with (c)(2), which says that if the sentence is not of the kind or is outside the range described in (a)(4) of the guidelines, the court shall state the specific reason for the imposition of a sentence different from the guidelines? Now, this seems to set up some dichotomy between giving reasons and giving the specific reason. Where does that line fall in your estimation?
06-5754 +++$+++ 51857 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think foremost, Your Honor, is that that provision came about prior to the Booker decision when the guidelines were mandatory. And what that addresses and what it was meant to address was if the court were to depart, then it was -- it needed to explain that departure in a greater reason to enable the sentencing commission to take that information into account in revising the guidelines. That is still a purpose with the sentencing commission, to revise the guidelines, and they can still use that information. But it -- at the very least, we need information from the sentencing judge about each of the matters that he or she --
06-5754 +++$+++ 51858 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You haven't answered my question. I mean, you explain why it's put in there, but I want to know what is the difference between giving the reasons and giving the specific reason.
06-5754 +++$+++ 51859 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The specific reason I think, Your Honor, is so that the sentencing commission can take that information into account in later revisions of the guidelines. That was the purpose at the point that statute was passed.
06-5754 +++$+++ 51860 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But are you saying now that that distinction should be ignored?
06-5754 +++$+++ 51861 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't know, Your Honor, if it's so much that it should be ignored inasmuch as the district court needs to give as many reasons, or as clear a reason for the imposition of the particular sentence. That will help --
06-5754 +++$+++ 51862 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But it sounds to me as though you want all the reasons to be specific. I mean, I understand your argument. But if we accept that argument, then the distinction between reason and specific reason basically is going to be a matter of history, and perhaps it should be.
06-5754 +++$+++ 51863 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It, it may, Your Honor. And, and because that provision predated this Court's Booker decision, it still holds relevance but not nearly the relevance it had when the guidelines were mandatory.
06-5754 +++$+++ 51864 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So your position would be, Mr. Cochran, that the obligation to be even-handed would have to -- that the trial judge would also have to go through -- now this defendant maintained his innocence. He didn't express any remorse. He accused a Government agent of perjury. All that, he would have to take into account, just as specifically?
06-5754 +++$+++ 51865 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think that the Court certainly could consider all of that; and -- and if pressed by the Government would need to consider that. But certainly at a minimum, the Court needs to --
06-5754 +++$+++ 51866 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Isn't that what the Government pressed at the sentencing hearing?
06-5754 +++$+++ 51867 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It did, Your Honor, and again the district court never came out with any specifics regarding any of those issues other than the conclusion that it felt that the guideline range was not inappropriate.
06-5754 +++$+++ 51868 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Suppose the district court says I give these following -- I've considered these following specific factors. But in my view, the consistency and nationwide uniformity that the guidelines strive to achieve is of great importance; and for that reason, I'm following the guidelines?
06-5754 +++$+++ 51869 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't --
06-5754 +++$+++ 51870 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Is that an inappropriate judgment for the district court to make?
06-5754 +++$+++ 51871 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think it's inappropriate, Your Honor, because while there should be uniformity in an attempt to move in that direction, uniformity is not the end all and be all. 3553(a) addresses individualized sentencing of the defendant before the court.
06-5754 +++$+++ 51872 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ It's not the end all. Suppose the district judge said I think this is of great importance. You don't think that the Booker opinion -- or do you think the Booker opinion rejected uniformity and consistency as an important factor?
06-5754 +++$+++ 51873 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't believe the Booker decision rejected that, Your Honor. What I believe the Booker opinion said was that for there to be advisory guidelines, for there to be constitutional sentencing practices, then uniformity is going to have to give way to some extent. At least at the very beginning. Once the district courts apply the 3553(a) factors, and go through the statute, and consider the guidelines, the district courts will then explain their rationale; and then that rationale will be -- in our opinion, will show where the shortcomings of the guidelines are.
06-5754 +++$+++ 51874 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Cochran, are you arguing the sentencing in this case violated the Sixth Amendment?
06-5754 +++$+++ 51875 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not as it was applied. It came close in the sense that the district court was laboring, in our opinion, under the belief that the guidelines held some control.
06-5754 +++$+++ 51876 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ If it didn't violate the Sixth Amendment, then your argument is based on the Sentencing Reform Act?
06-5754 +++$+++ 51877 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it came -- it may have violated the Sixth Amendment. I don't know that I would concede that. But to avoid any constitutional issue, if we analyzed this under the statute, clearly the district court didn't comply with the statute.
06-5754 +++$+++ 51878 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You can't say whether it did or did not violate the Sixth Amendment?
06-5754 +++$+++ 51879 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The district court held the guidelines to a greater quantum than simply advisory.
06-5754 +++$+++ 51880 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, was your client's sentence enhanced by any fact that should have been submitted to the jury?
06-5754 +++$+++ 51881 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, under -- under a pure advisory system -- and I think Your Honor is addressing the cross-reference in this matter -- in a purely advisory system, the guidelines were calculated correctly in Mr. Rita's case, because under a purely advisory system, the district court could look at that cross-reference, understand that it came about from uncharged and unproven conduct, and disregard it. But by not doing so in this case, and that cross enhancement doubled his effective guideline range, then this case may very well be unconstitutional because of the extra weight that the court gave the guidelines.
06-5754 +++$+++ 51882 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Cochran, you do contend, do you not, that if the guidelines had been mandatory, there would have been a violation of the Sixth Amendment.
06-5754 +++$+++ 51883 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No question, Your Honor.
06-5754 +++$+++ 51884 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Because of the, the accessory after the fact point.
06-5754 +++$+++ 51885 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's right, Your Honor, absolutely.
06-5754 +++$+++ 51886 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then the question ultimately is, does it violate the Sixth Amendment to say that we have a presumption there, a sentence is in the guidelines as a reasonable -- if you're an appellate court judge. And you think it does violate the Sixth Amendment?
06-5754 +++$+++ 51887 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Our position is that the presumption does violate the Sixth --
06-5754 +++$+++ 51888 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Then I guess the argument of the other side, which I would like you to address, is that, in which there -- we didn't think it violated the of Sixth Amendment if the district judge simple applied 3553 -- uh, 3553(a). And of course, 3553(a) includes all of these things that go into the guidelines; it make a big point of that in 3553(a). So why -- why couldn't you say, you know, all these factors are taken into account by the commission? They start with an effort to a apply them in typical cases. This is their judgment in typical cases. So it is entitled to some kind of weight; and -- at least in a typical case.
06-5754 +++$+++ 51889 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the guidelines should be consulted. No question --
06-5754 +++$+++ 51890 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, no, not consulting them. What I'm trying to do is to how much weight can a judge reading this give them without violating the Sixth Amendment? All I'm trying to do here is not whether the guidelines are good, bad, or indifferent. Congress wanted to apply them. We excised the mandatory to comply with the Sixth Amendment. Now, what else do we have to do to comply with the Sixth Amendment? Because I would think unless we have to do something else, we shouldn't do it, because Congress wanted it.
06-5754 +++$+++ 51891 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I would contend, Your Honor, that the Court needs to very clearly explain that the guidelines are, are a reference. They are --
06-5754 +++$+++ 51892 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The guidelines are what?
06-5754 +++$+++ 51893 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Are a reference.
06-5754 +++$+++ 51894 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Can you say it is an initial benchmark?
06-5754 +++$+++ 51895 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't -- when we start establishing benchmarks and presumptions, I think that's where we, we --
06-5754 +++$+++ 51896 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So benchmarks are bad. Presumption is bad. Great weight, that's bad?
06-5754 +++$+++ 51897 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's bad, too. And I think it's just another thing to consider.
06-5754 +++$+++ 51898 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Does it matter what judge did in other cases? I mean, if we look on the day before he said, well, the guidelines say this, but I think this case is different, so I'm going to depart, and the day after he says I know what the guidelines are, but I'm going to impose a higher sentence? I mean, how do we know he's -- when he says I looked at the guidelines and I think they're appropriate, that he's considering himself bound by something that he may or may not agree with, as opposed to what he said? Which is, well, I cannot find that they're inappropriate?
06-5754 +++$+++ 51899 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And what that tells me, Mr. Chief Justice, is that, that the district court felt that the guidelines had a center of gravity, that the judge was bound -- in other words, shifted the burden to the defendant to say, well, I -- unless you can show that these are inappropriate, that it is a setting of a benchmark, it's a drawing of a line, and we contend that that is what the Sixth Amendment prohibits. If the guidelines are advisory, if they are but one of many factors to be considered, together with all of the other factors in 3553(a), the court can use that information, can use that reference. But once it starts putting any greater weight on the guidelines -- and the statute doesn't admit to that.
06-5754 +++$+++ 51900 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How about the point that Justice Breyer made that these other factors have been taken into account by the sentencing commission because Congress told them to consider those same factors?
06-5754 +++$+++ 51901 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, the sentencing commission by its own admission has not taken into account all of the factors. In the very first guideline manual, 1987, the sentencing commission itself said it could not take into account all of the facts that play into human conduct.
06-5754 +++$+++ 51902 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ There are two separate things there. The general aims of sentencing, the four basic aims of sentencing, I believe the commission certainly took into account. A separate thing was the rule that said you can depart only for a matter that has not been fully considered by the guidelines. And there the original version, I believe, said that we've considered nothing thoroughly. Except for certain specific matters that had been mentioned like age, race, and we'll refer to statutorily. Now, that is what you're thinking of? I mean, if that's what you're thinking of, I don't think it's relevant to what your present point is.
06-5754 +++$+++ 51903 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not, Your Honor. First of all, I don't know and would contend that the initial sentencing commission did not take into account all of the four purposes of sentencing. They centered on crime control --
06-5754 +++$+++ 51904 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ That's because when they looked at all of the literature, they explained it, the rehabilitative purpose was not that it wasn't taken into account, it was there was a consensus among experts that there isn't much you can do about it. That's different from not taking into account.
06-5754 +++$+++ 51905 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The other point I think with regard to that, Your Honor, is in looking at 3553(a) that statute gives the district court the dual commands of first considering all of those factors and then imposing a sentence sufficient but not greater than necessary. The statute does not give to the sentencing commission that obligation.
06-5754 +++$+++ 51906 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Cochran, I have this concern: If we accept your submission that the district court should just consider the guidelines together with everything else, give them a presumption of validity, anything else, just something to consider, that would presumably eliminate any Sixth Amendment problem with the district court's findings of fact. But the district court's sentence is going to go on appeal. And the appellate court in reviewing it for reasonableness, let's assume in this case the appellate -- the appellate court says oh, no, this person had -- we find as a matter of fact, given the record, military service, you know, which we think should have been taken into account. And, therefore, we set it aside. Now, the next case that comes up, which doesn't have the element of military service, in all other respects the same as your client's case, it comes up to the court of appeals, and the court of appeals would say, ah, we don't have that different fact here and therefore we affirm the sentence. Isn't -- in other words isn't the finding of a fact necessary for the process of judicial review, even if it is not made necessary for the purposes of the district court's determination? He would not get that sentence but for this fact.
06-5754 +++$+++ 51907 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. And --
06-5754 +++$+++ 51908 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ So you haven't shown us a way out of the problem.
06-5754 +++$+++ 51909 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In a purely advisory system, the district court is bound by the statutory minimum and maximum. And as this Court has said in Cunningham, if the Court is bound simply by that statutory minimum and maximum, then the factual finding as to where within that is up to the district court. It's only when we establish thresholds as the guidelines do we run into the constitutional problem.
06-5754 +++$+++ 51910 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ No, even if you don't -- don't establish thresholds by reason of the guideline, you are establishing thresholds upon judicial review, guidelines or not. If the -- if the appellate court says, oh, given there's this fact in this case, the sentence below was reasonable, but in the next case, where that fact does not exist, the court of appeals says, ah, the sentence is unreasonable, in other words, that fact is made a necessary condition for giving the higher sentence. So you haven't -- you haven't solved the problem of the, of the apparent conflict between -- between Booker and the advisory guidelines.
06-5754 +++$+++ 51911 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think so long as the district court can evaluate and consider and potentially reject what the guidelines say, just as the Court can consider the effect of -- of the person's military record, Mr. Rita was a combat veteran in two wars, which is separate and apart from someone who may have been an Army recruiter --
06-5754 +++$+++ 51912 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ You're not focusing on my point. I concede that the district court is free as a bird -- free as a bird -- but you have appellate review. And the appellate court in reviewing for reasonableness is going to make a particular fact determinative of whether this sentence can stand or not. Isn't that right?
06-5754 +++$+++ 51913 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is.
06-5754 +++$+++ 51914 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ And that's going to be a problem.
06-5754 +++$+++ 51915 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think what the court would have -- the appellate court would have to do is evaluate all of that through the prism of 3553(a). Is the sentence that was imposed the least sufficient sanction that the court below could have imposed. And if not, for whatever reasons, vacate it and return it back to the district court.
06-5754 +++$+++ 51916 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Counsel, what if there weren't guidelines at all, and the district court said maybe, you know, it's new, I want to see what other judges have done; he presses a button on the computer, give me what the sentences were looking at these facts, and finds out in the last 100 cases, this is what the sentence was. And he says this seems to me no different than those and that's the sentence I'm going to impose. Is there any problem with that?
06-5754 +++$+++ 51917 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There is. And again, because 3553(a) is an individual weighing of the defendant --
06-5754 +++$+++ 51918 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Yes, well, he looks at all the individual factors and he says they seem not terribly different from these 100 other cases and the range in those 100 other cases was, you know, 5 to 7 years, and so I'm going to give him 5 years.
06-5754 +++$+++ 51919 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the district court considers all those facts and considers what may have been done and it is sufficient, if not greater than necessary given those facts, then the court can do that.
06-5754 +++$+++ 51920 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ How is that different than the -- how is that different than looking at the guidelines, which did that in a much more comprehensive way, and saying, I don't see anything different in this case from the normal guidelines case and so I'm going to impose that sentence?
06-5754 +++$+++ 51921 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the guidelines didn't take everything into account, and the sentencing courts were coming from 18 years of mandatory guidelines, of being required to follow this book that necessarily didn't incorporate all of the human factors in sentencing. And they have held to that.
06-5754 +++$+++ 51922 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, it did incorporate them in that district judges were free to depart from the guidelines if indeed they found there was some one of these human factors not considered by the guidelines which existed in the particular case.
06-5754 +++$+++ 51923 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In theory, yes, Justice Scalia. But in practice, no, because what happened in the very cases as United States versus Foy out of the Ninth Circuit, the defendant in that case argued to the district court that he should have a departure based upon lack of mutual guidance, and it was a reasoned decision. It went to the Ninth Circuit. The Ninth Circuit found it to be a reasoned decision; and within the next amendment process of the Sentencing Commission, it was eliminated as a departure basis with no discussion at all. So yes, there may have been departures, but they were systematically removed, and in fact chapters 5(h) and 5(a) show that very clearly.
06-5754 +++$+++ 51924 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Well, if they were systematically removed then all of these other human factors that you're complaining about were considered by the guideline commission and were simply rejected.
06-5754 +++$+++ 51925 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ They weren't considered, Your Honor, and in the history of those amendments that's borne out. And if the Court has no further questions, I'd like to reserve some time.
06-5754 +++$+++ 51926 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, counsel. Mr. Dreeben.
06-5754 +++$+++ 51928 +++$+++ FALSE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: The court of appeals appropriately applied a presumption of reasonableness in reviewing the sentence imposed pursuant to the advisory guidelines system that this Court announced in United States versus Booker. The guidelines represent the integration of the multiple purposes of sentencing reflected in section 3553(a) that the district court is obligated to consider. The commission also represents an expert body that has considered the various parameters of sentencing and the fact patterns that arise in the Federal system and has made an effort over time to arrive at an appropriate --
06-5754 +++$+++ 51929 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Isn't it true, just to get one thought out on the table, that there are factors that the guidelines don't -- did not consider, such as military service?
06-5754 +++$+++ 51930 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, the commission considered that factor and then determined that it was not generally appropriate to a sentence outside the guidelines.
06-5754 +++$+++ 51931 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But isn't it true that under the guideline no weight is given to military service?
06-5754 +++$+++ 51932 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The guidelines specifically do not give weight to it. They permit a judge --
06-5754 +++$+++ 51933 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What should a judge do if he thought some weight should be given to military service?
06-5754 +++$+++ 51934 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Under Booker the judge should do that. That is the difference between an advisory guidelines system and a mandatory guidelines system. The judge can give weight to factors That the commission decided should not have weight in the sentencing process. That is the essence of what it means for the guidelines --
06-5754 +++$+++ 51935 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And presumably cannot give weight to factors that the commission decided should have weight.
06-5754 +++$+++ 51936 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ He can do that, too, Justice Scalia.
06-5754 +++$+++ 51937 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Are we back to the original version, which I'll read what it says. It says: "With a few specific exceptions -- race, sex, national origin, creed, religion, socioeconomic State -- with those exceptions, the commission does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case." That's what it said. A part of the guidelines in the heartland. If it's not the heartland, depart. Now, what I wonder is are we not back under your theory of it just to where we were when it started out, before the commission started ruling all these things out and began to make all its -- the judge could do that.
06-5754 +++$+++ 51938 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think we're back, Justice Breyer, to a further point even than the first set of guidelines, because even under the first set of guidelines application of the guidelines was mandatory unless the court found an aggravating or mitigating circumstance that wasn't taken into account.
06-5754 +++$+++ 51939 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ We said we took nothing into account and therefore any circumstance that makes the case unusual would be in principle a ground for an exception.
06-5754 +++$+++ 51940 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand that, Justice Breyer.
06-5754 +++$+++ 51941 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ You're saying more than that is necessary.
06-5754 +++$+++ 51942 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that the reconciliation of this Court's merits opinion in Booker and its remedial opinion in Booker does dictate that the judge has additional freedom to impose a sentence that's different from what's described in the guidelines.
06-5754 +++$+++ 51943 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ He could do this: He could set aside the guideline on the theory that the guideline itself is unreasonable, that is it doesn't properly take account of sentencing. But suppose he doesn't do that. Then, if you take your view that there's a presumption in its favor and if it is the normal case, not an unusual case in any respect, how can he not apply the guideline?
06-5754 +++$+++ 51944 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, I think we have to distinguish between what the job of the district court is and what the job of the appellate court is; and in this case, the Government is arguing for a presumption of reasonableness on appeal. Once the district judge has determined that the guidelines sentence aligns with his own application of the section 3553(a) factors, our submission here is that a court of appeals can generally presume that that is a reasonable sentence. The defendant of course has the opportunity, or the Government if the Government has appealed, to show that that presumption is overcome.
06-5754 +++$+++ 51945 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But unless there is a way to calibrate the strength of the presumption, there's no clear way to distinguish the presumption from the mandate. The mandate is gone. You say yes, they consider other things. But unless we can calibrate the presumption in some way that says, you know, a mandate was force 60 and a presumption is a force 40, something like that, there's no way to tell the two apart in practice.
06-5754 +++$+++ 51946 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souter, I'm not sure that that would be true even if what we were talking about was a direction to the district judge to presume that he would impose a guidelines sentence. But that's not what we're talking about. The district judge does not operate and does not have to operate under the position that we're arguing for with a presumption that the judge will impose a guidelines sentence unless persuaded otherwise. The judge's obligation is to --
06-5754 +++$+++ 51947 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ He doesn't have to do it unless he wants to be sure of being affirmed.
06-5754 +++$+++ 51948 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I would think that what the judge wants to do is be sure that he's complied with his statutory obligations.
06-5754 +++$+++ 51949 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, perhaps I misunderstood Justice Souter's question, but I have this concern, and I thought it was his concern as well. At the appellate level, is the presumption something that can only be overcome by a clear and convincing showing or is it just an initial benchmark? We're playing with standards and words here.
06-5754 +++$+++ 51950 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we are.
06-5754 +++$+++ 51951 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ And when we talk about presumptions at the appellate level, that's actually a little strange in any event. You usually talk about presumptions as assisting us in finding a fact.
06-5754 +++$+++ 51952 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's true, Justice Kennedy. But I think what it reflects at the appellate level is that the court of appeals enters the case with an attitude that, our job is to decide whether what the district judge did was reasonable. We can operate --
06-5754 +++$+++ 51953 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So we write that this is an additive thing?
06-5754 +++$+++ 51954 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I think that it's not so different from the court of appeals saying we can enter this case feeling pretty confident that we can affirm a guidelines sentence unless the person who challenges that shows us a good reason otherwise.
06-5754 +++$+++ 51955 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, is your view -- on your view, is the appellate court engaging in some kind of de novo review or is the appellate court supposed to engage in a review that it will disturb the sentence only if it is shown to be unreasonable?
06-5754 +++$+++ 51956 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The latter, Justice Souter. And I think that in that regard there is a range of reasonable sentences that could be imposed based on a given set of facts.
06-5754 +++$+++ 51957 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, if you -- if you have that, two criminals, criminal defendants, with the same identical background and everything else, one judge says, I think military service should be taken into account, so I'm going to depart from the guidelines by 3 years. The judge next door says, I don't think it should be taken into account so I'm going to impose the guideline sentence. Both cases are appealed. They're consolidated for argument. What is the court of appeals supposed to do? Uphold both of them?
06-5754 +++$+++ 51958 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The court of appeals can uphold both of them if it concludes that the actual sentence that's imposed is reasonable. And in the second case that the Court is going to hear today the Government argues for a proportionality principle that should govern the review of sentencing.
06-5754 +++$+++ 51959 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What is reasonable is -- is not merely a sort of number within a spectrum. It seems to me that what is reasonable is a function in part of the reasons that are given. And in the Chief Justice's view, two diametrically opposed reasons are given for two different sentences. Does the, does the appellate court in his example say, well, I think reasonable people could go either way on that, so however it comes out it's fine on appellate review? Isn't that what the court would have to do in order to affirm both sentences, other things being equal?
06-5754 +++$+++ 51960 +++$+++ TRUE +++$+++ MR. DWYER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You're right, Justice Souter, and I can't say that that would be the first choice of the Congress that enacted the Sentencing Reform Act.
06-5754 +++$+++ 51961 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Isn't it clear that it would have been the last choice of the Congress?
06-5754 +++$+++ 51962 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is, and it's not the first choice of the Government, either. But it strikes me that it is something of an inevitability once this Court has declared that mandatory guidelines are impermissible under the Constitution if judicial factfinding --
06-5754 +++$+++ 51963 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What does the Sixth Amendment have to do with the selection of the sentencing philosophy that is to be imposed? How can there be a Sixth Amendment violation if either the guidelines or our case law says military service is or is not a relevant factor? I don't see how that has anything to do with anything that you can get out of the Sixth Amendment.
06-5754 +++$+++ 51964 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It probably does not, Justice Alito. But what happened in the first part of Booker is that the Court declared that the guidelines are advisory and advice. It's advice that can be accepted or rejected.
06-5754 +++$+++ 51965 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I know, but Booker says what we're trying to do is to come close to what Congress wanted but not violate the Sixth Amendment. Now, what I think we're talking about now -- I think -- i mean, you sort of shed some -- you clarified something very well for me, which is that in this case we're talking about the situation where the district judge applies the guidelines sentence, and then what's the attitude of the court on appeal, and the attitude is going to be, well, the Sentencing Commission thinks it's okay, the judge thinks it's okay, okay, you have to -- you better show me a good reason to think to the contrary. Fine. But the interesting problem is the problem of the next case which you're now talking about, is, well, what happens if the district judge and when should be the district judge and how free should the district judge feel he is to depart from the guidelines sentence even if it's not an unusual case.
06-5754 +++$+++ 51966 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me try to address that and try to address Justice Alito's point about the question of how much sentencing philosophy can be decreed by the sentencing commission or Congress before a Sixth Amendment problem arises. As I understand this Court's sequence of opinions from Apprendi leading up to the most recent decision in Cunningham, if the law establishes a level of punishment that may be imposed based on the facts found by the jury and says to the judge, judge, you may not go above it unless you find a particular fact, that fact is subject to the Sixth Amendment rule that the Court has announced and must be found by a jury.
06-5754 +++$+++ 51967 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Or some fact, not necessarily a particular fact.
06-5754 +++$+++ 51968 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Any fact at all, as a matter of fact is what the Court has said, although I understand that to mean facts pertaining to the offense and the offender, not facts about the world such as the prevalence of crime. Now, what that leads me to conclude is that in order to escape the bright line rule that's been announced in this sequence of cases, including Booker itself and most recently Cunningham, a judge must be able to look at the set of facts that the jury found, determine what level of punishment would be advised by, say, a guidelines system, and not be bound to impose that level of punishment if the judge feels that a different level of punishment is appropriate. If that is a correct understanding of what this Court has held, it necessarily implies that a judge does have a certain amount of freedom in an advisory guidelines system to disagree with what the Sentencing Commission has found, give the judge's reasons, and then is subject to appellate review for the reasonableness of that explanation and, the Government submits, subject to a proportionality principle, so that the sentence that's imposed outside the guidelines is a reasonable one and not an arbitrary one. Now, if I'm wrong about that and it is not necessary for the court to have the legal freedom to be able to disagree with what the Sentencing Commission said, that would be very good from the Government's perspective. But as I understand the complementary rules that are established by Booker, what an advisory guidelines system requires is that the guidelines be treated as advice rather than mandate. So while the guidelines have determined that military service is not ordinarily relevant to the level of punishment, a judge may determine in a particular case that he disagrees.
06-5754 +++$+++ 51969 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask you, this is the hypothetical: Supposing a judge thinks military service is relevant, and he decides to impose a sentence a little below the guidelines. But then he says, I recognize that in this circuit there is a strong interest in uniformity and the court of appeals has adopted a rule where they will presume a within guidelines sentence is reasonable and will affirm in those cases. And I think with respect to the court of appeals, I think I would be wise to impose the guidelines sentence, so I will do so even though my own judgment is that it should be slightly lower. What should the court of appeals do with such a sentence?
06-5754 +++$+++ 51970 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think the court of appeals should correct the judge on a mistaken apprehension of law, which is that the judge --
06-5754 +++$+++ 51971 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Should reverse the judge then, within a -- a within guidelines sentence?
06-5754 +++$+++ 51972 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the circumstance, Justice Stevens, I think that you put your finger on two different types of review. In the circumstance in which a district judge operates with what I'll call legal blinders on that prevent him from complying with --
06-5754 +++$+++ 51973 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No. He operates with total candor. He's saying exactly what he feels like saying.
06-5754 +++$+++ 51974 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm hoping that it's a misunderstanding of what the court of appeals has said, because the court of appeals should not have told the judge you're obligated to impose a guideline sentence.
06-5754 +++$+++ 51975 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, they didn't say you're obligated, but you can be pretty sure you'll be affirmed if you do impose within guidelines sentences.
06-5754 +++$+++ 51976 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Judges are still obligated to comply with 3553(a), which requires them to exercise discretion. Now if a judge decides I might as a personal matter if I were writing the guidelines write them differently, and I might give great weight to military service, but one of the things that I'm required to do under section 3553(a) is to consider the need to avoid unwarranted disparity between defendants who have been convicted of similar criminal conduct and have similar records. And therefore, I am going to moderate my own personal preference and not impose a significant outside the range sentence, in order to ensure that I fully have taken into account the fact that we are in a Federal system with 674 Federal district judges, and we cannot have all our own personal guidelines systems. Now if a judge does that, I don't think there's anything wrong with that. I think that judge has actually complied with --
06-5754 +++$+++ 51977 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ What if the court of appeals does that? What if the court of appeals says we've got 10 district judges in this circuit, nine of them do not take military service into account, one does, and we think that's inequitable, doesn't serve the interest in uniformity. And so even though that one judge says in the exercise of my discretion I'm going to depart, we're going to reverse that as unreasonable?
06-5754 +++$+++ 51978 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, I think there's a difference between a sentence that varies from what other judges would do and a sentence that is unreasonable. If the sentence that is different from what other judges would do is not supported by a cogent and coherent explanation, and it is unduly productive of disparity because, say, it takes a guidelines range like this one, of 33 months to 41 months, and the judge says in my view military service means that this defendant gets probation. Or to take an example that's on the other side, suppose that the judge says this defendant actually didn't get any extra credit in his criminal history for his prior crime, but he has been convicted before of lying to the Government about his gun charges. I'm now going to take him up to the statutory maximum or near it and give him eight years. I think in those circumstances a court of appeals can and should say, hold on, this is a view that the district judge is entitled to take on the merits. He's entitled to give greater weight to that factor, whether it's aggravating or mitigating, than what the guidelines did, but not to this extent, or we're going to be left with a system in which disuniformity is the main principle.
06-5754 +++$+++ 51979 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's not that complicated. All that happens is the court of appeals says, look, in the case of bank robberies we've discovered about 33 percent of the defendants in the typical case have been in the Army. And therefore, we think that just ordinary armed services is not a reason, ordinary armed -- services in the military is not a reason for a diminished sentence. That's all, period. Or they can say it the other way, the absence of a military service is a reason for having the higher sentence, put it any way you want. And by the way, district judge, if you disagree with that, we're going to reverse you because we think it's unreasonable. Okay. What about that?
06-5754 +++$+++ 51980 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That to me sounds identical to the system that pre-existed Booker's holding.
06-5754 +++$+++ 51981 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It did. But is there anything in the Sixth Amendment that forbids that?
06-5754 +++$+++ 51982 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This Court hasn't specifically addressed --
06-5754 +++$+++ 51983 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, what do you think? Because I would think that if you're going to answer that question yes, you are saying that not even the court of appeals can try to assure a degree of fairness among different defendants in respect to sentencing.
06-5754 +++$+++ 51984 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Breyer, I would like to be able to answer the question yes and say that courts of appeals can establish their own sub-legal rules as --
06-5754 +++$+++ 51985 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ It's not sub-legal rules. What it's called is precedent. What you do is you decide a case and you decide this is unfair, and then the thing that as a similar case comes along, is you decide it the same way. And if a district judge doesn't follow that, you reverse it.
06-5754 +++$+++ 51986 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, if do you that, what you have is each court of appeals functioning as a sentencing commission.
06-5754 +++$+++ 51987 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Exactly. You've simply substituted stare decisis and the necessity of the district court following circuit law for the guidelines. And --
06-5754 +++$+++ 51988 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly.
06-5754 +++$+++ 51989 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ If the guidelines are unconstitutional because they make facts automatically determinative, I assume that would be unconstitutional because it makes facts automatically determinative.
06-5754 +++$+++ 51990 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I assume too under the rationale --
06-5754 +++$+++ 51991 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well then, in other words, the Constitution of the United States prevents the courts themselves from trying to assure that sentences who are -- that individuals who are in similar positions, commit similar crimes, will be treated in similar ways. That to me is possible, but of course I've been in dissent in these cases. But it seems to me --
06-5754 +++$+++ 51992 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ So long as the jury determines the facts that make them similar.
06-5754 +++$+++ 51993 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ We're back --
06-5754 +++$+++ 51994 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ The problem here is what makes them similar.
06-5754 +++$+++ 51995 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand this dialogue. And what we have -- (Laughter.) I too have been with the dissenters in these cases, and what I'm trying to argue for here is a set of principles that appellate courts can apply and that district courts can look to when sentencing, that will come as close as is reasonably possible to achieving Congress's aims in the Sentencing Reform Act without crossing over the bright line rule that this Court has announced --
06-5754 +++$+++ 51996 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ I don't know how terribly different it is than the normal review for abuse of discretion. I mean, you don't even need two judges in my earlier question. Let's say you have the same judge, and for three weeks every criminal defendant who comes before him he says, I think if you have military service, you should get a reduction. And then all of a sudden he says, I see you have military service, but I'm not going to give you a reduction. I mean, is he bound by some abuse of discretion standard to be a little bit consistent? And if that's the only type of appellate review we're talking about, to ensure some degree of consistency in how similar individuals are treated in similar cases, I don't see that it raises any concern.
06-5754 +++$+++ 51997 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Mr. Chief Justice, I'm not arguing for any proposition that I think would raise concern. I do think that a general tenet of abuse of discretion review is that the court of appeals can affirm a result that it would not necessarily have reached itself.
06-5754 +++$+++ 51998 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Mr. Dreeben, may I ask you, please, to address a point that Mr. Cochran raised? I think you were very helpful in saying this presumption for the guidelines is how the court of appeals evaluates a district court sentence, that there is no presumption that binds the district judge. But one of the main points that Mr. Cochran made in his presentation was the district judge has to give reasons. He -- this was just a summary paragraph at the end of the sentence hearing. He has to respond to what defendant presented. He has to respond to what the Government presented. There is an obligation stemming from subpart (c) to give reasons, and that's what he saw as the principal flaw in this sentence, that the court of appeals has used. Reasons weren't given for it.
06-5754 +++$+++ 51999 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Ginsburg, I don't think there was anything problematic with what this district judge did. As Your Honor noted, this was a sentence that was imposed after a lengthy sentencing hearing in which the court engaged in a dialogue with defense counsel about the three bases and the exclusive bases on which defense counsel asked for a downward departure. The judge at least four times in this transcript brought up Section 3553, recognizing that the judge was well aware of his obligation to imply the purposes of sentencing and the factors that were presented to him. Now he did that and he made comments along the way that indicate why he did not find physical condition, military service, or asserted vulnerability in prison to be reasons that would justify giving this defendant a lower sentence. And in his ultimate explanation, though it is brief, he pointed to two of the Section 3553 factors explicitly. He pointed to the seriousness of the offense and he pointed to the need for public protection. Now if you look at the legal obligations that the judge had under Section 3553(c) to explain himself, the statute actually sets up a hierarchy of three different levels of explanation. First, in any case the judge is to state the reasons for the sentence. Second, if the sentencing range is greater than 24 months, the judge is supposed to explain the particular reason for giving a sentence at one end or another end of the range. And finally, if the sentence is outside the range, the judge is to give the specific reason for a sentence outside the range. That statutory framework makes it entirely plausible to say that if a judge imposes a guideline sentence and explains, I see no reason not to impose a guideline sentence, he has met his burden of explanation without having to respond literally and in sequence to each argument that the defendant has made.
06-5754 +++$+++ 52000 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ May I ask this question? The district judge is reviewed under an abuse of discretion standard, which I take it means there's a presumption he got it right. Is that correct? There's a presumption the district judge sentence is correct?
06-5754 +++$+++ 52001 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Stevens, our position is more complicated than that, because within a guidelines range if a sentence is imposed, the Government --
06-5754 +++$+++ 52002 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Why shouldn't there be also the same presumption when it is outside the guidelines range?
06-5754 +++$+++ 52003 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because sentences that are outside the guidelines range are more likely to be the cause of or a source of unwarranted disparity than a sentence within the range. And that is why that if the court of appeals is interested in fulfilling what Booker said the role of the court of appeals is, which is to iron out sentencing differences, there is more reason for the --
06-5754 +++$+++ 52004 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, do you think the interest in uniformity, in same sentences across the board is stronger than the interest in getting the correct sentence for the particular defendant who's in court at the time?
06-5754 +++$+++ 52005 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, there isn't any one correct sentence usually.
06-5754 +++$+++ 52006 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ No, there isn't. But if you say the district judge has broad discretion, which he does, and the review is under abuse of discretion, why should there not always be a presumption that the district judge got it right?
06-5754 +++$+++ 52007 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because there are more legal elements that go into sentencing and sentencing review than just those that you've named, Justice Stevens. Section 3553(a) itself, which is the guidepost for review, mandates that the district court consider the guidelines, consider the policy --
06-5754 +++$+++ 52008 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Yes, but it's sort of like findings of fact. They must take into consideration all sorts of aspects of the case, and you have a strong presumption that the findings of fact are accurate. Why don't you have a strong presumption that the ultimate judgment on the sentence is also accurate?
06-5754 +++$+++ 52009 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What happens when a sentence is imposed outside the range is that there is a greater risk of infringing the main purpose of the Sentencing Reform Act, which was to avoid unwarranted disparities; and in contrast to a sentence within the range which does not merely run that risk to the same degree, a sentence outside the range may well. It's different from what the sentencing commission with its expertise and its experience has recommended as the appropriate sentence, given those facts.
06-5754 +++$+++ 52010 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Well, you're -- I mean, this is a self fulfilling prophecy. You're saying if you don't comply with the guidelines, you're not going to have uniformity. Well, I -- my goodness. Is that consistent with the notion that the guidelines are advisory?
06-5754 +++$+++ 52011 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I wouldn't put it as strongly as that, Justice Scalia. What I would say is that the further that a sentence diverges from the guidelines range, the greater the possibility of unwarranted disparity; and as a result of that, a court of appeals should look more critically at the reasons that the district court gave and ensure that the constellation of reasons and facts that's presented is not so likely to be a disproportionate sentence than --
06-5754 +++$+++ 52012 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ But that's just inconsistent with the notion which I think is correct, that the district judge can simply disagree with the basic -- basic reasons of the commission, can simply disagree with the fact that the commission considers white collar crime, for example, something that should justify incarceration.
06-5754 +++$+++ 52013 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But Justice Scalia, reasonableness review connotes that the court of appeals will review the reasons that the district court gave for that disagreement.
06-5754 +++$+++ 52014 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So doesn't your presumption argument come down to an argument for a sufficiently comprehensive statement of reasons, with a more extensive statement required the further the court gets from the guidelines? Isn't that what it boils down to?
06-5754 +++$+++ 52015 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does for an out of range sentence, Justice Souter. I think that for a sentence within the range, the judge's statement that I have considered the guidelines range and I think it's appropriate does explain why that judge has given the sentence that he's given. It's consistent with the statute and it's consistent with the Constitution. Now when --
06-5754 +++$+++ 52016 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Is there -- may I interrupt you? Because your time is getting short. Is there a difference between a presumption of reasonableness to the guidelines on the one hand and a rule that says the further you get from them, you can get as far as you want to, but the further you get from them, the more extensive your explanation has to be? Is there a distinction between those two, two rules?
06-5754 +++$+++ 52017 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There is a distinction between them but I think they are complementary rules and in the next case the Government will argue for a presumption that is precisely what you have articulated, Justice Souter. A greater and more extensive and more persuasive explanation is needed the further that you go from the guidelines range.
06-5754 +++$+++ 52018 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Or presumably the further the facts suggest that you ought to depart from the guidelines range? If you've got a submission here 18 compelling reasons, you shouldn't follow the guidelines, and you get one sentence from the district court saying -- you know -- I followed the guidelines, presumably that would be the same as a significant departure without further justification?
06-5754 +++$+++ 52019 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It wouldn't be identical but I agree with you, Mr. Chief Justice, that a sentence within the guidelines can be unreasonable if there is a compelling case for a sentence outside the range because the guidelines simply don't fit in that circumstance. The sentencing commission itself recognized that the guidelines were generalizations; they carved out a heartland in the language of the sentencing commission's first set of guidelines, and that there will be circumstances that would justify different sentences.
06-5754 +++$+++ 52020 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Is the system that you're describing any different for mandatory guidelines that are subject to departure when the district judge finds a significant reason, which was what mandatory guidelines had?
06-5754 +++$+++ 52021 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Justice Scalia. It is quite --
06-5754 +++$+++ 52022 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Wherein is it different?
06-5754 +++$+++ 52023 +++$+++ TRUE +++$+++ MR. DREEBEN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is different precisely on the area that, that you yourself articulated. The judge can disagree with the sentencing guidelines and determine that on the basis of the facts that the jury found, the judge would impose a different sentence, and that conclusion is then subject for reasonableness review and we submit based on a proportionality principle.
06-5754 +++$+++ 52024 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ RESPONDENT +++$+++ Thank you, Dreeben. Mr. Cochran, you have three minutes remaining.
06-5754 +++$+++ 52026 +++$+++ FALSE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That you, Mr. Chief Justice. I would like to return first to the across the board reasonableness review that this Court established in Booker. That in and of itself shows why there cannot be a presumption of reasonableness on appeal. Because you are holding the presumption to a different standard at that point. It is not a reasonableness across the board. You are putting the burden on one the parties, most likely the defendant, to come forward and explain why the presumption should be rebutted. That flies in the face with the across the board reasonableness this Court set forth in Booker. The guidelines are fraught with disparity. That why is they are advisory. That's why they can only be advisory. And the district courts must be allowed to look at them, to see them, to consider them, but ultimately to impose a sentence outside them for valid reasons. In Mr. Rita's case, the court didn't. The court felt the guidelines held some undue weight. It is indicated in the record in two places, first and foremost on page 49 of the joint appendix, where the court at the beginning of the sentencing hearing states: Other than the motion for downward departure that you submitted, do you have any other objections; and what I'm trying to do now is determine where your client fits within the sentencing guidelines. Clearly the judge was rooted in the guidelines and that's why he gave a sentence of 33 months at the low end.
06-5754 +++$+++ 52027 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The, the judge also pointed out that the jury made certain findings and he thought he was bound by them; that is, the defendant protested his independence, and the jury had found him guilty of false statements.
06-5754 +++$+++ 52028 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. That's --
06-5754 +++$+++ 52029 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ The judge was bound by those.
06-5754 +++$+++ 52030 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor, but interestingly the court found very dubious the additional information regarding the cross-reference. And on page 87 of the joint appendix, the court states it was not able to evaluate the seriousness of that other investigation; and yet that was the cross-reference that doubled his guidelines sentence. We would ask the Court to rule in this case that the presumption of reasonableness cannot be accorded to the guidelines.
06-5754 +++$+++ 52031 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Mr. Cochran, you've started out by saying there were two places in the record that you thought showed the judge was bound by the guidelines. 49, what was the other one?
06-5754 +++$+++ 52032 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the other one was page 87.
06-5754 +++$+++ 52033 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Of the one -- oh, that point? Okay.
06-5754 +++$+++ 52034 +++$+++ TRUE +++$+++ MR. COCHRAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And that would be in the second paragraph, Mr. Chief Justice, where the court found it was unable to stray or found the guidelines were inappropriate; and I suggest that that is a, a giving of greater weight and too much so in this case. Your Honor, Mr. Rita asks the Court to find that a presumption cannot be accorded to the guidelines, that his sentence was unreasonable in this case, and that his case be returned for resentencing. Thank you.
06-5754 +++$+++ 52035 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ RESPONDENT +++$+++ PETITIONER +++$+++ Thank you, Mr. Cochran. The case is submitted.
06-593 +++$+++ 52039 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument next in case 06-593, Long Island Care at Home versus Coke. Mr. Farr.
06-593 +++$+++ 52041 +++$+++ FALSE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: In the 1974 amendments to the Fair Labor Standards Act, Congress made one thing very clear, that it wanted the Department of Labor to define the boundaries and fill in the details of the companionship services exemption. And I think that has two important implications for this case. First of all, when the Department has filled in the details, after notice and comment rulemaking, its regulations should receive Chevron deference as long as they are permissible implementation of the statute. Second, and particularly specific to this case, if there are ambiguities in the regulations, or as we have here, an apparent facial inconsistency, the court should accept the Secretary's resolution of that ambiguity provided that it is a reasonable one. And here we submit it's not only a reasonable one, it is by far the most sensible one. Now I'd actually like to turn, if I may, to the second issue first, because I think that's the source of a lot of the concern in this case. Plainly the two regulations, section 10 -- 552.109(a), which is the regulation directly at issue before this Court, and 552.3, which is the regulation relied on heavily by the Second Circuit to strike down the present regulation, have some inconsistency between them. But it is also plain that the Department could not have intended to say at one and the same time that the only employers entitled use the exemption were homeowners and then say in another section promulgated at the same time that also third-party employers are entitled to the exemption. So the question is, how does one resolve this apparent inconsistency? And the Secretary says, well, the only regulation that we promulgated that, in fact, deals specifically with the issue of third-party employment is 552.109(a), which is in fact headed Third-Party Employment. And that section 552.3, while containing some language that might be read to address that issue, in fact deals with several other topics. Specifically it deals with the topic of what kinds of jobs are involved in domestic service, maids, chauffeurs, footmen, et cetera; where those have to be performed, in a private home; and in fact, somewhat more than that, in the private home of the person receiving the services. So it's not enough, for example, for somebody to conduct a service like laundry or baby sitting in his or her own house, it has to be in the house of the person receiving the services.
06-593 +++$+++ 52042 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought the words were home of the person who employs, not who receives the services but who employs.
06-593 +++$+++ 52043 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Oh, that's correct, Justice Ginsburg. The literal language is not specifically what I was saying. What I'm talking about is the Secretary's attempt to resolve what is an apparent inconsistency between the literal language in 552.3 and the literal language of section 552.109(a).
06-593 +++$+++ 52044 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ By -- reading out the words "of the person who employs" her?
06-593 +++$+++ 52045 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, essentially reading them to say they, they were not intended to address directly the subject of third party employment which is the subject addressed in 109(a). And I think if one is -- even leaving aside the question of deference to the Secretary for a moment, Justice Ginsburg, if one is simply talking about making a fair resolution of these conflicting provisions from the ground up, it seems to me the first thing that one would do is apply the canon that the specific provision controls the general. And if one looks at the two provisions, section 109(a) is a provision that deals with one thing and one thing only: that is third party employment. And it says explicitly and straight out that persons who are employed by third-party employers are -- or third-party employers who employ persons performing domestic services are entitled to the exemption.
06-593 +++$+++ 52046 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought it also addressed, unlike the more general regulation, just people who have companionship services. So if you have a maid or a cook or a footman, who doesn't provide companionship, then 109 is inapplicable.
06-593 +++$+++ 52047 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That would be true. Now that would be inapplicable --
06-593 +++$+++ 52048 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's a footman? I don't even know what a footman is. (Laughter.)
06-593 +++$+++ 52049 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What is a footman?
06-593 +++$+++ 52050 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that may be beyond my expertise, Justice Scalia. The -- of course that doesn't address anything beyond companionship services, of course, because there is not an exemption beyond that. And that's one of the interesting things about 552.3. In addition to generally dealing with this question of what kind of jobs are domestic service, it is, in fact, going well beyond anything that is necessary to a discussion of the exemption for companionship services, because jobs like chauffeurs, and maids, and all of that are not subject to the exemption. So it really looking at what 552.3 is doing despite the couple of words that -- at the beginning of it, is giving a general definition of what constitutes domestic employment, what constitutes domestic services for purposes not only of the exemption but, in fact, really for the purposes of coverage as well. And the Department has taken that position. It says this is, in fact, the only definition of domestic service that we have in the regulations, and it is not just intended to be limited to the particular situation of the exemption. It applies more broadly than that to coverage as well. So I think in all those senses, Justice Kennedy, 109 is a very specific provision, 552.3 deals with a number of other subjects. Now, one other thing on the statutory interpretation part is that the reading of 552.3 that Respondent offers also leads to the problem that essentially sets up a tension with another one of the regulations which is 552.101(a). 552.101(a) which I'm sorry -- I don't have the right page number here -- it is on page 77a of the appendix to the petition -- has, carries over the language from 552.3 about in the home of the employer that Justice Ginsburg referred to. But then it also says that this includes people who are commonly referred to as private household workers. And the one thing we know from the Department of Labor submissions to Congress in 1974 and also from what the Department has said before this Court is that that term at the time was defined by the Department and known by Congress to constitute more than just employees employed by the homeowner. There was a special second category for people who worked in the home of the homeowner at the homeowner's request but were employed by a third party agency. Now somewhere underlying all of this question, I think, is statutory interpretation and indeed all of Respondent's arguments against deference to the Department is a basic underlying premise, which is that Congress really would not have wanted, even if it didn't say so, for the exemption to apply to employees who work for third parties. And I would just like to suggest that there really is no basis for thinking that Congress would have wanted that. First of all, third participate employers such as private agencies provide services for the particular group of people which Congress was trying to assist with this exemption. People who by reason of age or disability are unable to care for themselves. Agencies acting as the employers specifically can do the hiring, they can do the vetting and the screening, the background screening for employees. They can provide necessary paperwork, filing Social Security documents and things like that. So, in fact, for Congress to have some sort of bias against covered enterprises seems a little bit unusual.
06-593 +++$+++ 52051 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Farr, I'm not sure I followed your argument with regard to 552,101(a).
06-593 +++$+++ 52052 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Uh-huh. Yes, Your Honor.
06-593 +++$+++ 52053 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Page 77a as you said. But what is your argument there? I mean, that seems to, that seems to reinforce the provision that you say we should ignore or at least should accept the Secretary's reinterpretation of.
06-593 +++$+++ 52054 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well perhaps, perhaps I wasn't as clear as I intended to be. It does, as I indicated, have the language about the private home of the employer.
06-593 +++$+++ 52055 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That's right.
06-593 +++$+++ 52056 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ However, the -- the preceding sentence says the term, referring to the term that is at issue in 552.3, domestic service employment, includes persons who are frequently referred to as private household workers. The fact is that those two statements are inconsistent with each other. The term cannot be limited to employees of the home owner and also include persons who are frequently referred to as private household workers, at least if one means all the persons referred to --
06-593 +++$+++ 52057 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yeah. I see. Is that clear in the -- in the specific Senate report that is referred to here?
06-593 +++$+++ 52058 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the specific Senate report, in both the '73 and the '74 reports --
06-593 +++$+++ 52059 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ This, the one that's cited in the regulation itself. Because I -- otherwise, I don't, I ignore those things. That's cited in the regulation. Does that report say it?
06-593 +++$+++ 52060 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What? The report uses the term private households workers frequently interchangeably with the term domestic employees. That is what is clear from the report itself. Now, the Department of Labor when it was reporting to Congress, as Congress has required it to do, the Department of Labor used the term private households workers, specifically defined in there by the Department, to say this means not just employees employed by the homeowner but also people who are employed by third parties. So I think it is a fair assumption that when the Senate report was using that phrase, it was using it in the same manner that the Department of Labor reports have. And, in fact, at one point in the -- moving further backward in the legislative history, Senator Dominick actually quoted that language, the definition from the Department of Labor, on the Senate floor during the debates.
06-593 +++$+++ 52061 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought that the Department of Labor's first take on this was that the exemption did not apply to third-party employers. That was the original Department of Labor position, wasn't it?
06-593 +++$+++ 52062 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Justice Ginsburg. I believe that's correct. There was a, an opinion letter from the Department in November of 1975 -- this is an opinion letter that's cited at page 21 of the Solicitor General's brief -- which specifically stated that the exemption applied whether the employee was an employee of the homeowner or of a public or private --
06-593 +++$+++ 52063 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm referring to the notice and comment rulemaking in which you place great stock. I thought the original notice and comment rulemaking said the exemption does not apply to third-party employers.
06-593 +++$+++ 52064 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry, Justice Ginsburg. I misunderstood the time frame we were dealing with. In the notice of proposed rulemaking, actually I would disagree with that characterization also. The notice of proposed rulemaking made a division among third-party employers. It said the exemption would not be available to those third-party employers who were covered enterprises but it would be available to those who were not covered enterprises.
06-593 +++$+++ 52065 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, wait. Does the notice of proposed rulemaking set forth the agency's position?
06-593 +++$+++ 52066 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it does not.
06-593 +++$+++ 52067 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I didn't think it did. They're just floating an idea. You know --
06-593 +++$+++ 52068 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
06-593 +++$+++ 52069 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Run it up the flagpole, see if --
06-593 +++$+++ 52070 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that it solicited comments on that proposal. And after the comments, it changed its position to say no, in fact, all third-party employers will be exempt.
06-593 +++$+++ 52071 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And -- and there was no further discussion of it after -- after it sent out the notice of proposed ruling that said third party employees will not be exempt, and then it said they will be exempt, did it give reasons for the change?
06-593 +++$+++ 52072 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, if I can just -- if I can quibble with the premise of the question. The first time it said some third-party employers would be exempt and some wouldn't. Then when it changed --
06-593 +++$+++ 52073 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Some would be the ones that qualified as -- what is the phrase, enterprises engaged in commerce?
06-593 +++$+++ 52074 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct -- those would be the ones under the proposed rulemaking that would have been denied the exemption. When in fact -- when, in fact, the Labor Department said no, in fact, the exemption should apply to all third-party employers, it said it found that more consistent with the statutory language. And it also said it was more consistent with what it had done under other regulations which had been passed under the Fair Labor Standards Act.
06-593 +++$+++ 52075 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Farr, would you agree that the position expressed in the notice itself would have -- in the original notice would have been consistent with the statutory language?
06-593 +++$+++ 52076 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not sure of that, Justice Stevens, to be honest with you. I mean one of the difficulties here in answering that is that I think, because the Department has such broad authority under 213(a)(15) to define and delimit the term, I think what's consistent with the statute has expanded somewhat. On the other hand, I have to say I don't really see where there would be in the language of the statute any basis for drawing a distinction between different kinds of third-party employers. The phraseology in the coverage provisions, the phraseology in the exemption provisions, really doesn't allow for that in terms of any sort of statutory interpretation.
06-593 +++$+++ 52077 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well there would be a basis in terms of the size of the third-party employers.
06-593 +++$+++ 52078 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I mean, it's possible, but as I say, the -- I mean, among the difficulties that covered enterprises is not just corporations and big and small corporations. Covered enterprises beginning in 1974 includes state and local governments. So what Congress would have been addressing here, if it had been squarely facing the issue, would have not just been the question of how to treat large and small corporations, but whether it wanted to deny the exemption to covered enterprises such as state and local agencies who, in fact, do provide a lot of the direct employees who provide companionship care. They have a lot of employees who actually go into homes and care for people who are employed by state and local governments. And I think it would be a little bit unusual for Congress, who is reasonably solicitous of state interests, to deny them an exemption that would have been of considerable importance to them. As the State of -- or the City of New York brief points out, this is a very extensive endeavor.
06-593 +++$+++ 52079 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Were they covered before, before there was any provision that dealt with household workers? If state and localities were considered enterprises engaged in commerce, then presumably they were -- they had no exemption before, their companion care people, just as household workers, would be covered by the Fair Labor Standards Act.
06-593 +++$+++ 52080 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, but I think, Justice Ginsburg, the important point is they were not covered prior to 1974. There were certain --
06-593 +++$+++ 52081 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They were not treated as covered enterprises.
06-593 +++$+++ 52082 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct. They were -- they were, if they worked in schools or institutions like hospitals. Other than that, they were not until 1974. That's exactly correct. This, in fact, would have been denying them an exception at the very time that for other occupations aside from companionship services, they were first having coverage applied to them. If there are no further questions, I'd like to reserve the remainder of my time.
06-593 +++$+++ 52083 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you Mr. Farr. Mr. Salmons.
06-593 +++$+++ 52085 +++$+++ FALSE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court. The FLSA's companionship services exemption applies by its terms to any employee employed in domestic service employment to provide companionship services for the aged or infirm. The Act imposes no limitation based on the identity of the employer. And the Agency's regulation of 552.109 extending the exception to employees of third parties is entitled to deference. The Department expressly invoked its statutory rulemaking authority in adopting Section 109, 552.109. It utilized ed notice and comment rulemaking procedures both in 1975 and each time it considered amending the regulation. And States and care providers have relied upon it in devising systems to provide appropriate services to the aged and the infirm.
06-593 +++$+++ 52086 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So if the Department of Labor had enacted its regulations as originally proposed, those regulations would have been invalid?
06-593 +++$+++ 52087 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, I don't think so, Your Honor. If you're referring to the initial proposed rulemaking that would have exempted only some third parties, we think that would have been a permissible reading of the exemption given the fact that the Secretary is provided very broad defined limit authority. But we certainly think there's nothing in that exemption that precludes the construction that's been adopted here. In fact, we think it is the most consistent with that language. The language of 5523 upon which Respondent relies does not change that conclusion. While if read in isolation that language could require that domestic service employees have to provide their services in the home of the employer, it should be not -- it should not be given that reading for the reasons explained in the Department's 2005 advisory memorandum. The Department's construction of its own regulations contained in that memorandum is itself entitled to deference under Our and Seminole Rock and its construction harmonizes the various provisions at issue here far better than Respondent's reading of 553 does.
06-593 +++$+++ 52088 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ The statute treats together babysitters and elder care people, but I take it the babysitters if they were working for an agency rather than for the householders, there wouldn't be any exemption? Is that right?
06-593 +++$+++ 52089 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, and that's tied to a specific term that only applies to the exemption as to babysitters. The only thing that's exempt with regard to babysitters is babysitting on a casual basis. Congress certainly could have included a casual basis requirement with regard to the exemption for companionship services. We think it's very notable that it did not and we read from that that Congress wanted all domestic service employees providing companionship services to be exempt, and we think that's most consistent with the goal of ensuring that those individuals who most need this type of care have the opportunity to receive them at a reasonable cost.
06-593 +++$+++ 52090 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Isn't it odd that this -- the basic thing about the '74 legislation, it was going to add to the Fair Labor Standards Act people who were not covered before. So it added household workers. And yet you say that, while Congress had its mind trained on adding people, it also subtracted people who were covered before, took them out, removed them from the coverage of the Act.
06-593 +++$+++ 52091 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we think that that is the consequence of the companionship services exemption, but we don't think that's odd based on the Department of Labor's view of what the purpose of that exemption is and based on the textual difference between, for example, the exemption for baby sitting services and the exemption for companionship services. The exemption here expresses no limitation based on the identity of the employer and we think it was well within the agency's discretion to conclude that what Congress had in mind here was a categorical exemption based on the type of services that are being provided; and while that may mean that there are certain workers who are now exempt who were not previously exempt, that's because Congress for the first time in 1974 focused on this problem of companionship services being provided to those who cannot care for themselves; and we think that follows from the text, and for the reasons Congress adopted that.
06-593 +++$+++ 52092 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Mr. Salmons, can I ask you a question about the importance of the whole litigation. Am I correct in believing that there's a provision in the law that protects the defendants from damages liability if they relied in good faith on the regulation, so that what we're really talking about is whether the regulation would apply in the future rather than there being a damage issue in the case?
06-593 +++$+++ 52093 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there is a safe harbor provision that allows for reliance by employers on a statement by the agency.
06-593 +++$+++ 52094 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ That would clearly apply to this case, would it not?
06-593 +++$+++ 52095 +++$+++ TRUE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We certainly think it would. I take it Respondents in this case would disagree and would point to the language of 552.3. I'm not sure, for example, how the Second Circuit would have resolved that question, given the way it viewed the statute here. But we do think that that would apply and so I think one view of that would be it's largely prospective.
06-593 +++$+++ 52096 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So in your view we're really faced with a question of whether the regulation should be given prospective effect.
06-593 +++$+++ 52097 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry? What would be given prospective effect?
06-593 +++$+++ 52098 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ As to whether the Government's position should be given prospective effect because the past liability doesn't -- the damage liability just doesn't exist.
06-593 +++$+++ 52099 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that is our view. Again, I think that would be an issue that would be litigated and I'm sure litigated heavily in the hundreds of cases that are being filed under this provision. And I think it's -- one of the concerns I think of the agency here was to provide a clear statement with regard to how these seemingly conflicting provisions of the regulation are to be reconciled and applied.
06-593 +++$+++ 52100 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Not seemingly conflicted. They conflict.
06-593 +++$+++ 52101 +++$+++ TRUE +++$+++ MR. SALMONS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I certainly don't take issue with that. I think that there are a variety of things that point to the conclusion that the language in 552.3 that refers to "in the home of the employer" simply cannot be read literally. It was borrowed from the Social Security context and if read the way Respondents do we think would raise a serious question about the scope of coverage because the agency has always viewed 552.3, notwithstanding the initial line that says "For purposes of the exemption," to provide the relevant definition for coverage as well. And no party, or amici for that matter, before this Court nor the Department thinks that there's a difference between the identity of the employer for purposes of coverage. And we also think, given the language in 101 that refers to private household workers, the definition of which was provided to Congress in a report by the Department of Labor and is relied upon in the advisory memorandum in 2005, which clearly applies to third party employers, suggests that 553 cannot be read literally. And of course we know that at the same time that the agency adopted 552.3 it felt the need to adopt a specific regulation dealing with the question of third-party employment which would not be relevant -- which would not be necessary under Respondent's reading. If the Court has no further questions --
06-593 +++$+++ 52102 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Mr. Salmons. Mr. Becker.
06-593 +++$+++ 52104 +++$+++ FALSE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice and may it please the Court: On October 1, 1974, just five months after the 1974 amendments to the Fair Labor Standards Act took effect, the Department of Labor exercised its delegated law-making function to define this term "domestic service employment," which exists in the companionship exemption and nowhere else in the amendments. And they defined its clearly and explicitly to apply only to companions and baby sitters employed by the household. At the same time, DOL provided a persuasive explanation for that definition. The Department found that such companions and baby sitters when employed by covered enterprises had been covered prior to the amendments and that it could not have been Congress' purpose, when amendments were explicitly designed to extend coverage, to at the same time contract coverage. The very preamble to the Act states that the purposes of the amendments are to expand the coverage of the Act. Therefore, the DOL itself concluded in October of 1974 that it was not the purpose of those amendments to deny the Act's protection to previously covered domestic service employees. The definition in 552.3, which expressly applies only to the exemption, conflicts directly with the final third-party regulation.
06-593 +++$+++ 52105 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Was that later?
06-593 +++$+++ 52106 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
06-593 +++$+++ 52107 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How much later?
06-593 +++$+++ 52108 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The final regulations were promulgated in February of 2005.
06-593 +++$+++ 52109 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no. I thought that the provision that was -- what is the number -- - where they say 552.109; that didn't appear anywhere until many years later.
06-593 +++$+++ 52110 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no, Your Honor. That was in the final regulations, which were promulgated in February -- excuse me -- in 1975, not 2005.
06-593 +++$+++ 52111 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, you read --
06-593 +++$+++ 52112 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the final regulations.
06-593 +++$+++ 52113 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You read 3 and 3 says what you said it says. All right. How much later did they promulgate 109?
06-593 +++$+++ 52114 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was in the final regulations in February of 75.
06-593 +++$+++ 52115 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The same time that 552.3 was finally promulgated.
06-593 +++$+++ 52116 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
06-593 +++$+++ 52117 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They came out together, right?
06-593 +++$+++ 52118 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct.
06-593 +++$+++ 52119 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's what I thought. So the same day they say, 3, you have to have these domestic workers employed by the old lady who's sick, and then in 109 they say you don't.
06-593 +++$+++ 52120 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. There's a direct conflict.
06-593 +++$+++ 52121 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right. Now, why is that a conflict? Let's imagine -- it sounds like a conflict. But it's easy for me to imagine a regulation that says birds for purposes of this are animals that fly, and then 15 pages later it says, but by the way, penguins don't and they're still covered. I mean, why is that a conflict? There are lots of specific situations. If I read that, I would have thought, well, okay, they have an exception.
06-593 +++$+++ 52122 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, the definitional regulation, 552.3, explicitly defines a term used only in the companionship services exemption, "domestic service employment." And it defines it clearly and explicitly to apply only to employment by the household. Therefore, there is a direct conflict with the so-called third party employer regulation, which appears to say that the exemption can apply to employees employed by third parties. The importance of the conflict is twofold. One, when the original regulation was proposed the Department provided a persuasive explanation. Congress surely didn't intend to contract coverage in amendments designed explicitly to expand coverage.
06-593 +++$+++ 52123 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Did Congress intend to cover, which I guess is a growing situation, that there is an old woman or man and they're very sick and they live in their house, there's only one way to keep them from having to go to an institution. Their children hire a companion to look after them. Now, that's a third party.
06-593 +++$+++ 52124 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, that question has been posed by some of the amici and it is a good question, but not the question before you.
06-593 +++$+++ 52125 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because?
06-593 +++$+++ 52126 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I submit that if the Department construed section 552.3 to say when our words say "employed by the household" that could include a broader notion of the household, for example a son or daughter living outside the household, that might be a permissible construction of the Department's own regulation. But the construction which simply takes those words --
06-593 +++$+++ 52127 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It doesn't say that. It says "about, in or about a private home of the person by whom he is employed." I live in San Francisco. My mother lives in Massachusetts. Now, if I hire a companion to live in Massachusetts, that companion does not work about a private home of the person, me, by whom she is employed. So if we're being literal and if you win this case, I don't see how -- and I'm worried about this, obviously -- however -- and I think it's probably very common, that all over the country it's the family, the children, the grandchildren, an aunt, an uncle, maybe a good friend, maybe they're not even related, who is paying for a companion for an old, sick person so they don't have to be brought to an institution. And if you win this case, it seems to me suddenly there will be millions of people who will be unable to do it and, hence, millions of sick people who will move to institutions. Now, if I were to say that that isn't totally a legal point, it is of course a legal point because it's a question of what people intended, but a worrisome point, I would be telling the truth. It is a very worrisome point.
06-593 +++$+++ 52128 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's a very important question of public policy and therefore let me answer in two ways. One, I think there is a proper procedure even under the existing regulations to address that concern. The elderly individual that you're concerned about who is severely disabled and thus needs this care, the child or family member who is employing the companion to care for them could do so as their guardian, and therefore as a technical legal matter would be doing so, the employment would be by the person who resides in the home.
06-593 +++$+++ 52129 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It wouldn't take a whole lot of imagination for Justice Breyer to give the money to his mother, who could then hire.
06-593 +++$+++ 52130 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly.
06-593 +++$+++ 52131 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I mean, a clever lawyer would think of that, I think. (Laughter.)
06-593 +++$+++ 52132 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ A clever lawyer could do this.
06-593 +++$+++ 52133 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And perhaps there are people, lawyers in the Government, who try to see through that kind of thing.
06-593 +++$+++ 52134 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But let me answer the second --
06-593 +++$+++ 52135 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And there are many -- maybe Justice Scalia has the answer.
06-593 +++$+++ 52136 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me answer a second way to what is a serious concern. And the second way the situation could be dealt with is by the Department of Labor. They could look at their regulations and say, the industry has changed and therefore, in a way which could certainly be consistent with Congress's intent because it would not be withdrawing coverage from a previously covered employee who was employed by an enterprise, we could say that the exemption applies to companions and baby sitters employed by private individuals, including the homeowner, the son or daughter, etcetera.
06-593 +++$+++ 52137 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're saying it's permissible to change the rules because the industry has changed. Is it not possible that the industry changed at about the time the statute was enacted? That the prevalence of third-party employers is something that really developed later?
06-593 +++$+++ 52138 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As an empirical matter, that is clearly the case, Justice Stevens. However, we know several things about Congress in 1974. We know that the enterprise coverage was relatively new. They adopted it in 1961, expanded it in 1966, and indeed expanded these very amendments in 1974. So Congress was aware of the prior coverage. We know that the Department of Labor, in the very reports which have been cited by the petitioner, stated both in January of 1973 and in January of 1974 in their reports to Congress on the Act, stated that there was prior coverage of domestics employed by third parties. We know there was enforcement activity by the Department of Labor against such third-party employers. So while the industry has certainly changed, there were enterprises who employed domestics, including companions, in 1974, and Congress was aware of it and stated over and over again in the preamble, in the committee reports, which indeed, the House committee report said, "Our intention is to expand the act to the extent of Federal power."
06-593 +++$+++ 52139 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How -- putting aside -- putting 552.109 aside, how is 552.3 a plausible interpretation of the statute?
06-593 +++$+++ 52140 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we think it is the most plausible interpretation for the following reasons: Number one, contrary to what has been suggested, the language in the exemption is not identical to the language in the extension provision extending the minimum wage and overtime requirements. There is an important difference, and that difference is the word employment. Now that's important for several reasons. Number one, of course, coverage provisions are to be read broadly and exemptions narrowly. So there's an additional word that can and would suggest it should be read as a term of limitation. Number two, that difference must be given significance, if possible. The word should not be read to mean the same as the coverage provisions when it doesn't exist in the coverage provisions. And number three, we should avoid redundancy. There is a reading of that unique language, "domestic service employment", which makes sense and in fact, is exactly the reading given by the Department. Congress did not intend to --
06-593 +++$+++ 52141 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What employment would someone who's hired by a third party be engaged in if not domestic service employment?
06-593 +++$+++ 52142 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The word domestic service employment is not necessary to describe what you described, Mr. Chief Justice. If that is what the Congress intended to describe, it could have said simply an employee employed to provide companionship services.
06-593 +++$+++ 52143 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, it could have said a lot of things. But I find it -- you're hanging your case upon the proposition that there is a difference between domestic service employment and employed in domestic service employment. Wow. You know, I just don't see how there's any difference in those two at all.
06-593 +++$+++ 52144 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
06-593 +++$+++ 52145 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're saying we have to find some difference no matter how imaginative the difference might be. If there were a difference, I'm not sure it's the difference that you're arguing for.
06-593 +++$+++ 52146 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What I'm suggesting is not that our case relies or hangs on that word. What I'm suggesting is if that word, that phrase, "domestic service employment", is given the definition which the Department of Labor itself gave it, it avoids reading two phrases which are different to mean the same thing. It avoids redundancy. And moreover, it is wholly consistent with every other piece of evidence we have about Congress's intent. Even the Department of Labor suggested it surely could not have been Congress's intent to retract coverage. The definition is consistent with that.
06-593 +++$+++ 52147 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Can I ask you what your proposal is with regard to the contradictory regulations, 552.3 and 552. -- what is it, 109? I think they are contradictory. Now, the Agency has come up with a solution. We will interpret the former quite unrealistically to mean something that it doesn't seem to us to say but -- you know -- close enough for government work. What is your solution for solving the inconsistency? Are both of the regulations bad?
06-593 +++$+++ 52148 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ My solution, Your Honor, has two parts but leads to the same conclusion. Our solution is that in applying the Act, which is the question here, does the Act apply to Ms. Coke's employment, this Court should apply the definitional regulations for two reasons, the definitional regulation for two reasons. One, it is the regulation, which no one disputes, and was promulgated in the exercise of the Department's law making function. The Department expressly defined and delimited its term "domestic service employment" in 552.3 and expressly said it was not doing so in the third-party regulation. So it's entitled to greater deference for that reason. But moreover --
06-593 +++$+++ 52149 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What's your other reason?
06-593 +++$+++ 52150 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is the only definition which makes sense, which doesn't lead to a whole series of problems.
06-593 +++$+++ 52151 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Because of employed and domestic employment versus --
06-593 +++$+++ 52152 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For --
06-593 +++$+++ 52153 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ -- domestic service?
06-593 +++$+++ 52154 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ For the following five reasons, Your Honor. One, it avoids reading a term in the statute, not only a term in the regulation but a term in the statute, completely out of the statute. And that is the term "employment". Secondly, as the Department found, it is consistent with what was Congress's clear intent, to expand and not to contract coverage. Thirdly, if one looks at the debates, and there was extensive and vigorous debate about these amendments, the exclusive focus in Congress was the household. The opponents were exclusively concerned with the extension of coverage to the households. So applying the exemption to protect only household employees is wholly consistent with what was Congress's exclusive --
06-593 +++$+++ 52155 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, you're getting into arguments now that are not about the regulation but they're about the statute. I'm assuming that we have regulations that are entitled to deference. And you have two regulations that are conflicting. Now, how do you decide which one prevails? Counsel for the other side says the specific governs the general, certainly an ancient prescription. Counsel also says that this is an agency regulation. The agency is given great deference in the interpretation of it own regulations. And even if the agency had said well, you know, they do conflict, we admit it, they totally conflict, we won't even try to reinterpret 552.3, we think that's the one that's wrong, why wouldn't we accept their statement to that effect?
06-593 +++$+++ 52156 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, of course setting aside, as you do, our argument that Congress has specific intent on this question, looking only at the regulation --
06-593 +++$+++ 52157 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's statutory. I just want to focus on the regulation arguments, not the statutory --
06-593 +++$+++ 52158 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me answer in several ways. First, this Court has clearly held that an agency does not have unbounded discretion to construe its own regulations. When the terms of the regulations are unambiguous, they cannot be construed away. Now here --
06-593 +++$+++ 52159 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They aren't unambiguous. They contradict each other. The agency has to do something about it, and here the agency made a choice. Even if I assume the choice was, we're going to disregard 552.3, we're going to strike out those words, they were the mistake. One or the other had to be the mistake. We decided it was this one. Why shouldn't we take their word on it?
06-593 +++$+++ 52160 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Again, for two reasons, Your Honor. There's a difference between conflict and ambiguity. The words are unambiguous, and it's not simply the -- there's two sets of words which they attempt to read out of the regulation, one of the unambiguous words that require employment by the person who's living in the home, and the other is the prefatory language which says the regulation only applies to the exemption. So in the guise of deference, the Solicitor General and the petitioners actually suggest to this Court that it should take apart the regulation and ignore two of its three operative provisions.
06-593 +++$+++ 52161 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But if they're flatly contradictory, doesn't your argument have to be that .109(a) has lesser status? That's what it boils down to, isn't it?
06-593 +++$+++ 52162 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is certainly my primary argument, that this statute is relatively unique in that it vested two very different sorts of authority in the Department of Labor, one a clear law making authority to actually define and delimit, to specify what the terms in the law mean --
06-593 +++$+++ 52163 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I'm talking about what you think the Department of Labor was doing when it promulgated 109(a). It was thinking in effect the following: We have the power to issue a regulation here that has the force and effect of law, and we're going to go through the procedure that would be necessary to issue such a regulation. But we're not invoking that power here because we want this interpretation which we think is the correct interpretation of the statute not to be followed -- not to get as much deference from the courts as it would if we were invoking our power. Does that make any sense? That an agency would proceed in that way?
06-593 +++$+++ 52164 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, it not only makes sense, it's been the Department's pattern since the Act was adopted. That is, the Department since the Act was adopted has split its regulations into those under the exemptions -- for example the primary exemption for professional, executive and administrative employees -- has split its regulations under those exemptions into those which define and delimit, into those which do not define and delimit, or other general statements that apply to their interpretation.
06-593 +++$+++ 52165 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, but interpretive regulations are in other areas wholly valid before the courts and entitled to Chevron deference, at least if they're adopted by notice and comment rulemaking. You know, we have nothing, what should I say, subordinate about interpretive regulations. In fact, probably most of the significant regulations of the most important agencies are interpretive regulations.
06-593 +++$+++ 52166 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The important difference here, Justice Scalia, is the statute. The statute, like the tax statute which was interpreted by this Court in Vogel and Rowan, creates two types of authority. And not only under the Fair Labor Standards Act, but --
06-593 +++$+++ 52167 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I understand that you say it creates two types, but there is no indication that it intended one type of authority to be entitled to less respect from the courts than the other. What do you rely on for that?
06-593 +++$+++ 52168 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
06-593 +++$+++ 52169 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Where is the proposition that an interpretive regulation is somehow not a full-fledged binding regulation?
06-593 +++$+++ 52170 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, let me qualify the question, if I might. The Petitioner would suggest that we're relying on simply a label, this is in the interpretive section and the other is in the general regulation section. Far from it. We are relying on a very clear statement both in the regulations, 552.2(c), as well as in both the proposed regulations and the final regulations, which clearly state that only those in Part A define and delimit. Why is that an important distinction? It's an important distinction because Congress clearly meant these two grants to be different. Otherwise, why would it have granted an express power to define and delimit which would otherwise be redundant of the general rulemaking authority?
06-593 +++$+++ 52171 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They're different but not necessarily of different -- entitled to different respect from the courts. A defined -- what is it, define and delimit? These are regulations that don't even purport to be an interpretation of any language in the statute, but the use of authority given to the agency to cut out certain areas, to say the -- this rule won't apply to companies over this -- that can't possibly be an interpretation of the statute. So Congress says we're going to give the agency that authority. In addition, of course, we're going to give this agency the authority that every other agency has, which is to interpret -- interpret the language of the statute.
06-593 +++$+++ 52172 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor, I think we can safely assume in 1974 when Congress created these two types of authority, it did so with knowledge of the law. And this Court, if you compare its decision in Addison to its decision in Skidmore, clearly itself distinguished between the exercise of those two different interpretive or rulemaking authority. Clearly in Addison, construing a very similar term in a different exemption, giving the Department of Labor the power to define a particular term in the exemption, said that is law making authority. And we will follow what the Department of Labor says unless it's clearly inconsistent with the statutory -- with Congress's intent. In Skidmore, where that type of expressed delegated law making authority to define and delimit was not at issue, the Court said we will record only that degree of deference to which the regulation --
06-593 +++$+++ 52173 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Skidmore was before a rather significant case called Chevron.
06-593 +++$+++ 52174 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Absolutely, Your Honor. But it was also before the 1974 amendment. So if the question is, what was Congress intending in creating two types of rulemaking authority, the power to define and delimit, and the general rulemaking authority, I think we need to consider Congress's intent at that time.
06-593 +++$+++ 52175 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You mean we're going to divide all administrative law now into those -- those regulations -- those provisions that were adopted by Congress pre-Chevron and those adopted by Congress post-Chevron, and for the ones adopted pre-Chevron we're going to treat regulation as essentially suggestions by the agency which we give Skidmore deference to, and the ones after Chevron, we're going to treat differently. Do you have any case of ours that suggests something like that, which seems to me a very strange manner of proceeding?
06-593 +++$+++ 52176 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Let me answer in two ways, Your Honor. One, it would not be any case. Here we have a particular statutory scheme that is contrary to --
06-593 +++$+++ 52177 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Ought not to get as much deference from the courts.
06-593 +++$+++ 52178 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Here we have a case essentially described by Justice Kennedy in & Haga, where we have a different statutory scheme combined with a explicit statement by the Agency as to which part of that scheme the Agency is operating under. But the case I would cite, or the cases would be Rolo and Rove which have not --
06-593 +++$+++ 52179 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Since we're into that, we're into this fascinating subject, I thought that possibly they had -- they promulgated the whole thing pursuant to the rulemaking power under that particular statute, because that's what it says in 552.2. It says "this part" -- it doesn't say subpart, it says part -- and part is 552. And both regs we are talking about are in the part. And B says interpretations, but they don't mean interpretive rules, because when you look at those interpretations, they have a whole lot of numbers in them, and divide by 32. Nobody thinks that Congress meant in this statute divide by 32, as opposed by divide by 33. So as I read that, I thought the whole thing is promulgated pursuant to their rulemaking authority; Part A has more general things. Part B has more specific things. Where am I wrong?
06-593 +++$+++ 52180 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think the question, Your Honor, is which of the regulations were promulgated pursuant to the specific authority --
06-593 +++$+++ 52181 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All of them. All of them is what it says unless I missed something.
06-593 +++$+++ 52182 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think what you missed is that a simple citation to the exemption does not translate into an exercise of the power to define and delimit. Because the Department was very, very specific as to when it was exercising that power. In 552.2(c) it says the definitions required by the legislation are provided in the following sections and it enumerates them and does not include the third-party regulation. Now Petitioners would suggest well, that's just a definition. They also have the power to delimit. However, both the notice of proposed rulemaking and the notice of final rulemaking said that we are exercising our power to define and delimit in subpart A.
06-593 +++$+++ 52183 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. I got the point.
06-593 +++$+++ 52184 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But part B is different.
06-593 +++$+++ 52185 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right. Right.
06-593 +++$+++ 52186 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So why are you sure there's a conflict in the first place? You know, 552.3 says that the term domestic service employment refers to services performed in the home of the employer. It doesn't say it only refers to that. And then you go down and 109 says it also includes employees who are employed by a third party. I mean, can't they be reconciled in that way.
06-593 +++$+++ 52187 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think so, Your Honor. And its certainly not the way that the --
06-593 +++$+++ 52188 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's not the way the Agency has done it. But you don't think we should defer to them, anyway. So -- (Laughter.)
06-593 +++$+++ 52189 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct. But the regulation -- 552.3 defines the statutory term which only exists in the exemption, domestic service employment.
06-593 +++$+++ 52190 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yeah, but it says it refers to something. It doesn't say as many of these regulations and statutes do, is, you know, it is defined as. And particularly when you're confronted with what would otherwise be a conflict, maybe refers to should be read to mean includes rather than is defined as.
06-593 +++$+++ 52191 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I think we have to read the definitional regulations together. That is, all of the terms in the exemption, companionship services, babysitting services, casual basis, domestic service employment, are all defined in the set of regulations, point 3, point 4, point 5, point 6. And it is clear from the prefatory language of each one that what the Department of Labor intended to do was define the terms in the statute. And so when it said that that term refers to --
06-593 +++$+++ 52192 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well it is interesting when you look at -- I mean, they're -- it's a good point. It's interesting when you look at the other definitions, the babysitting, it says this provision shall mean. Here it just says it refers to. Let's see, the other ones -- casual basis, shall mean. Companionship services, shall mean. This one doesn't say shall mean. It says it refers to this. I'm just wondering if that's something that suggests it's not intended to be as exclusive as the other definitions.
06-593 +++$+++ 52193 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I do not believe so, Your Honor. It is an exercise of the power to define the term and I don't think we can take that language "refers to" to be non-exclusive. When the Department said referred it was defining a statutory term as it said it was. If we have any doubt about what the Department intended, it actually of course reiterated that definition under the interpretive classification. And it again said that the term refers to, is defined as, employment by the household. If we had any doubt --
06-593 +++$+++ 52194 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Becker --
06-593 +++$+++ 52195 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ There it says -- there it says includes. And if you're talking about 552.101, there it says the term includes persons frequently referred to as private household workers.
06-593 +++$+++ 52196 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm referring to an earlier provision of the same regulation, not the reference to private household workers, but where it states that the definition includes those individuals who are employed by the household, that is in 552.101(a). But if we had any further doubt, the -- that regulation refers to, as its source of the language, the regulation adopted under the Social Security Act, now 20 CFR 404.1057. It was originally numbered differently, but at the time, in 1974, that regulation which was explicitly the source of the language the Department of Labor used, said not once, not twice, but three times, that the individual had to be employed by the household.
06-593 +++$+++ 52197 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. -- Mr. Becker, if there is room for the Agency to read this statute either way, one way that the third party employee would come under the Fair Labor Standards Act, the other that they would not, would be treated the same way as the person employed by the elderly person himself or herself, but if the concern of Congress in making this exemption was for the householder with limited funds, if the Agency is subject to the Fair Labor Standards Act, it's going to end up being the householder paying for it anyway. So why isn't the most reasonable interpretation of what Congress meant by the exemption that the exemption would apply across the board, so that all workers in this category would be exempt?
06-593 +++$+++ 52198 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, setting aside, of course, all the reasons about Congress's intent in 552.3 which we've already explained, we would not say that that there is any credible evidence in the legislative history or the text of the Act to suggest that cost was a factor. And let me explain why. The Department for the first time when it promulgated its advisory memorandum suggested this was the basis of the third party regulation. It said nothing of the sort in 1975. As support for the assertion it cited four isolated comments in the legislative history. None of them except the last -- and there is only one of t-h-e-m related in any way to the exemption. The one that related to the exemption in fact directly supports our position, because it describes those people who are not within the exemption as the professional domestics. So we don't think that there's any basis for suggesting that cost was the underlying rationale; and, in fact, it is really implausible. Because at the same time, for example, Congress extended the provisions of the Act which covered nursing homes. At the same time, as has been pointed out, Congress only exempted casual babysitters. Now We would submit that if Congress was concerned about cost, in creating this babysitter and companionship exemption, the primary intended beneficiaries of that would have been working families where both people worked and therefore who require a full-time baby sitter --
06-593 +++$+++ 52199 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, Counsel.
06-593 +++$+++ 52200 +++$+++ TRUE +++$+++ MR. BECKER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- and a full-time baby is not covered. Thank you very much.
06-593 +++$+++ 52201 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Mr. Farr, you have three minutes remaining.
06-593 +++$+++ 52203 +++$+++ FALSE +++$+++ MR. FARR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you Mr. Chief Justice. Respondent in response to Justice Scalia's question about how Respondent would reconcile the regulation 552.3 and 109(a) actually did not I believe attempt any reconciliation. If I understand respondent's position correctly, it's simply 109(a) has to be invalidated dated and 552.3 stands in its entirety. I think that's incorrect for several reasons. First of all, the basis for it is essentially this apparent distinction between the define and delimit authority and the more general authority to enact necessary rules and regulation. But, in fact, as Justice Breyer pointed out in his question, both grants of authority were invoked by the Department when it enacted both regulations simultaneously, not limited to either subpart A or subpart B, and for the reasons that Justice Alito points out, it is a very odd thing to attribute to the Department to say that it would exercise two different legislative powers in different parts of the -- of the regulations. There's no reason it would do that. The subpart B regulations clearly are regulations that delimit the terms of the exemption in 213(a)(15). There's no question about that. So why in fact if it was doing what Congress authorized it to do under 213(a)(15), would it instead of relying on the grant of authority in that provision, rely on some other general grant of authority? It makes no logical sense to attribute that to the Department. And it seems to me, in -- excuse me -- in fact, that that argument points up one of the difficulties here. It seems to me that the arguments here are a way of simply trying to push the Department aside so that the courts can ultimately do the final job of exposition on this exemption. Not only contrary to the basic principle of Chevron, which is where that where is ambiguity in the statute, or room for interpretation, the agencies are given the opportunity to do that within reasonable bounds; it is also contrary to the statute. It is clear as I said at the beginning of my argument, the Department was the agency chosen by Congress to do the work of defining and delimiting the exception. Now I'd like to say just one other thing in response to Justice Stevens' question about the particular nature of the litigation. This is a suit for damages. It is a suit claiming will damages. Thank you, Your Honor.
06-593 +++$+++ 52204 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. The case is submitted.
06-84 +++$+++ 52208 +++$+++ FALSE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++  +++$+++ We'll hear argument first this morning in 06-84, Safeco Insurance Company versus Burr, and 06-100, GEICO General Insurance Company versus Edo. Ms. Mahoney.
06-84 +++$+++ 52210 +++$+++ FALSE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, and may it please the Court: I'd like to turn first to the Ninth Circuit's interpretation of the term "willfully" and its determination that the case had to be remanded for further proceedings to permit an opportunity to explore Petitioners' communications with their counsel. We ask this Court to find that there is no necessity for any such inquiry for waivers of attorney-client privilege because summary judgment should have been affirmed in this case. Petitioners and their counsel, if you think about what communications you might find, they could not have known anything more about these statutory issues of first impression than the district court did. It's questions of law. And if the district court's opinion does not reflect reckless disregard for the law, for the reading of the statute, then it would be inappropriate to characterize Petitioners' adoption of the very same views as either a knowing or reckless violation of the, of the FCRA. The first -- the Ninth Circuit nevertheless reached a contrary conclusion, and said it was time to go ahead and look at privileged communications if the Petitioners wanted to defend the case, because they made self-interpretive errors about the meaning of willfully. And the first is that they read willfully in this setting to mean recklessly, and relied on several cases where this Court has read the term willfully in civil statutes to mean recklessly. But this Court has said repeatedly that the word willfully is contextual, that you have to look at all of the sections of the statute to see how it's used to determine whether it means with knowledge that your conduct violates the law, or whether reckless violations are sufficient. And in this particular statute, unlike the other three that were at issue, Congress has used the term willfully in other sections of the law to mean, as Plaintiffs concede, that the Defendant knows that their conduct violates the Act.
06-84 +++$+++ 52211 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, it's also used in the phrase "knowing and willfully." That appears in several other parts of the statute, and that wouldn't make any sense if the only meaning of willful is knowing.
06-84 +++$+++ 52212 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it actually says "willfully and knowingly --"
06-84 +++$+++ 52213 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ In one formulation or another, but it combines the two words, knowing and willful.
06-84 +++$+++ 52214 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, this Court, though, has held that willfully and knowingly, when that phrase is used together, it's been discussed in a number of cases including Dixon recently, that it means -- willfully means knowledge that the conduct violates the law, and knowingly means knowledge of the relevant facts. And that would make perfect sense in this setting, and so the term willfully when, again, used --
06-84 +++$+++ 52215 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You mean willfully alone?
06-84 +++$+++ 52216 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It --
06-84 +++$+++ 52217 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Where -- where it -- where it means what you think it means, which is knowingly, that does not mean knowing the facts? If you mistake the facts and are laboring under a misimpression of the facts, you have nonetheless willfully violated the law?
06-84 +++$+++ 52218 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, in Ratzlaf, the phrase was willfully, not willfully and knowingly, and the Court held that it meant that you knew that your conduct violated the law. And that seems to be the most reasonable reading here because if you look, there are also sections of Section 1681n that refer to knowing conduct, and that would require the conclusion that Congress used willfully in this section to mean a -- a less -- a more -- a less culpable mens rea than knowingly. And that's --
06-84 +++$+++ 52219 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So that if you're the CEO of your company, and a lawyer -- Federal counsel comes in and says we've got a real issue under the Fair Credit Reporting Act, I need to brief you on that, we need to make an important decision about whether we are complying, you say I don't want to hear about it, I don't want to know about it. That would not be willfully violating the statute?
06-84 +++$+++ 52220 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, under -- some cases have suggested that there could be a willful blindness instruction that would govern whether you define that as knowing or not. Certainly --
06-84 +++$+++ 52221 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ So it doesn't have to be actual knowledge?
06-84 +++$+++ 52222 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think that the best reading of knowingly is actual knowledge or something that is, that is everything but, you know, that really is --
06-84 +++$+++ 52223 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ How about reckless disregard?
06-84 +++$+++ 52224 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, conscious disregard is a recklessness standard, and even if the Ninth Circuit correctly determined that this should be interpreted as a recklessness standard, this Court has defined recklessness to mean that it has to be conscious disregard, actual knowledge of a high risk of, of -- of harm or in this case illegality. And in these circumstances, you can't say that there was a high risk of illegality because what the district court found is that the Petitioners' interpretations of the statute were actually not only reasonable, but correct, and having --
06-84 +++$+++ 52225 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Since the term knowingly or knowing appears in two places in 1681n, can't we infer from that that willfully in that provision also means something different?
06-84 +++$+++ 52226 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the way it's used, it says knowing, knowingly that they did not have a permissible purpose. Permissible purpose, that may not be knowledge of the law, it just may be knowledge that your purpose wasn't permissible. And even if they were using it --
06-84 +++$+++ 52227 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I thought the statute says what the permissible purposes are.
06-84 +++$+++ 52228 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It does, but it doesn't necessarily mean that the individual knew precisely what the statute said. Because for instance, users are told what the permissible purposes are when they get a credit report from, from a credit agency. But more importantly, Your Honor, I think that the use of the term knowingly there can also be explained. If you look at Section 1681h, it actually provides that certain tort actions cannot proceed unless there is a willful intent to injure, except as provided in Section 1681n, and they are the same kinds of actions that are carved out in 1681n. And so I think it was to make clear, I think it was to make clear that you didn't have to have a willful intent to injure. So even if they meant it to be interchangeable with a knowing violation of the law there, I think there was a reason for it, it wasn't just surplusage. It was to clarify that they didn't have to have a willful intent to violate.
06-84 +++$+++ 52229 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you say it's all right to use the model penal code definition of reckless, which is basically what you -- taking it here, you would have to consciously disregard a substantial and unjustifiable risk that the action is unlawful?
06-84 +++$+++ 52230 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor.
06-84 +++$+++ 52231 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ If you come across anything that would use that, I mean "reckless" itself is unclear. The model penal code tried to clarify it based on this Court's opinions primarily.
06-84 +++$+++ 52232 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But I think you can look to the way this Court described recklessness in Farmer vs. Brennan as well, though, as well as --
06-84 +++$+++ 52233 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ What's the difference?
06-84 +++$+++ 52234 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The difference is just, there is two forms of recklessness. One which says that if the risk is sufficiently high, if a person should have known, you could be -- you could be liable. But that the form of recklessness that Congress presumably used here in this setting, where there is the potential for very punitive sanctions, was what is referred to -- Farmer versus Brennan calls it "criminal," the criminal recklessness standard. And that means that not only do you have to have an objectively high risk of illegality, but you must be actually conscious of that risk. But in this case, you don't even need to get to the issue of consciousness.
06-84 +++$+++ 52235 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, you said there is no way they couldn't have been conscious of the risk here. I mean, after all, that's why they went to lawyers. They know there's risk that this is unlawful.
06-84 +++$+++ 52236 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The question is --
06-84 +++$+++ 52237 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But consciousness, I mean, maybe it should come in in the standard, but I don't know that that would help you.
06-84 +++$+++ 52238 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think the issue of conscious -- the risk, though, it has to be a high risk. And if it is a reasonable interpretation of the statute, or even if it is an interpretation of the statute that is fairly debatable, that you have a fair chance of success, then how can you say that is a high risk of illegality, so high that we should say that Congress wanted to sanction you for taking that position? And for saying that, you know, you shouldn't be permitted to adopt a compliance program if there was a fair ground for believing that it was lawful. And here what the Ninth Circuit did --
06-84 +++$+++ 52239 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Suppose there is a fair ground for believing it was lawful. Lawyers are in disagreement, but in fact, I believe the lawyers who say it is unlawful, and I nonetheless go ahead and do it. Is that a willful violation?
06-84 +++$+++ 52240 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't, I don't think so, Your Honor, if, in fact, it was a fair ground for -- --
06-84 +++$+++ 52241 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ But I think I'm violating.
06-84 +++$+++ 52242 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't -- yes. But you couldn't know you were violating it, and because if it really is a fair ground for litigation --
06-84 +++$+++ 52243 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I'm a better lawyer than my advisors. (Laughter.)
06-84 +++$+++ 52244 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think if it's an area where the law is truly unsettled. And here an issue of first impression, a lawyer's assessment that you may lose is inherently predictive. These are not true or false answers when there is almost nothing to go on. And so in that area, it's much like what this Court did in Screws, where it said that this was a case involving a willful violation of, or interference with rights secured by -- by Federal law. And what the Court says, well, it's not just any bad purpose that Congress had in mind, it is a bad purpose to defy announced rules of law. They have to be, there has to be sufficient clarity in the law to say that there was a high risk of illegality that you could disregard.
06-84 +++$+++ 52245 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you look to the subjective intent of the actor at all?
06-84 +++$+++ 52246 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Only --
06-84 +++$+++ 52247 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Or would you just look to the outcome and say, well, you know, it was a close question, so even if the actor indeed thought he was in violation, it was a close question; it's okay?
06-84 +++$+++ 52248 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think you would look at the intent until you found that there -- there was no reasonable ground or at least no, no -- no fair ground for debate about the question. And at that point, Your Honor, if there was an objectively high risk of illegality, then you do have to ask, what were they consciously aware of; what did they do?
06-84 +++$+++ 52249 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I must say that -- that is not the normal meaning of willful, willfully violating the law.
06-84 +++$+++ 52250 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I think in Screws --
06-84 +++$+++ 52251 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ You're changing it to mean willfully, willfully and blatantly violating the law.
06-84 +++$+++ 52252 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't think so.
06-84 +++$+++ 52253 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I mean, if I know that what I'm doing is in violation of the law, even if it's a close question, it seems to me I am willfully violating the law.
06-84 +++$+++ 52254 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, Screws says you can't know the unknowable. And if the law, if it's really, truly an issue of first impression, you may think you're violating the law, but you -- you can't know the unknowable. And that's why this setting is so important, because you can't, you know, put -- impose sanctions. Here we're talking about the potential for an industry facing billions of dollars without any actual harm to -- to individuals. And that --
06-84 +++$+++ 52255 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Is it really billions? How many of these have been certified as class actions?
06-84 +++$+++ 52256 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I believe that there are two certified class actions. But many -- there are many cases pending and it could be billions of dollars, Your Honor. Certainly if the classes are certified, and --
06-84 +++$+++ 52257 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Would you, would you, as representative of the insurers, would you have a sound objection to class action certification in these cases?
06-84 +++$+++ 52258 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I'm sure there would be some bases to resist. But classes have been certified, so I --
06-84 +++$+++ 52259 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ And gone to, gone to judgment?
06-84 +++$+++ 52260 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I do not believe any have gone to judgment, but I don't, I don't -- I think that the point is that if you allow a thousand dollar penalty or the potential for a thousand dollar penalty for every consumer who didn't get a notice, simply because they may have gotten a better price if they had even better credit, across the country, if you interpret the statute that way, and then you can say you can get this thousand dollar, what is in essence a penalty, and you multiply that by the number of consumers, then you certainly have the potential for very, very substantial liability.
06-84 +++$+++ 52261 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It's a question how many will sue for a thousand dollars, given the litigation costs.
06-84 +++$+++ 52262 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, given that these are proceeding as class actions, the answer is there is plenty on the line to incentivize plaintiffs' attorneys to bring these class actions, and they have been brought, and this is a class action. There are two class actions.
06-84 +++$+++ 52263 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ They haven't -- neither has been certified, has it?
06-84 +++$+++ 52264 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, it has not. They are putative class actions, Your Honor. But I, but I think that whether it's a class action or not, we have to look at what did, what did Congress presumably have in mind when it authorized these kinds of penalties and punitive damages based on a willful violation in a technical area where there is no potential for harm? And certainly --
06-84 +++$+++ 52265 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ I have just two, two questions on, on willful and then -- because you may want to talk about the other issue in the case. First, you began by saying that here a district judge has come to the contrary conclusion; by definition, it can't be reckless. Do you have any authority, where we -- for that proposition, where we have said that?
06-84 +++$+++ 52266 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well --
06-84 +++$+++ 52267 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ We find all the time that a right is not clearly established under AEDPA, and so forth -- and disregard what I just said. That's my first question. And the second is willfully, as Screws itself makes very clear, it is interpreted differently in the criminal context than it is in the civil context.
06-84 +++$+++ 52268 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Except Screws, Your Honor, actually says that it was adopting a criminal recklessness standard, not a knowing standard, but a reckless standard. And that is the same standard that has been applied in the civil cases that use willfully in the punitive damages context. So I think it's exactly the same standard in that Screws does say that the, you can't have, it can't just be a bad purpose, that it has to have been a bad purpose to violate clearly defined rules. And this Court has said in various contexts in the, in the qualified immunity area that picking the losing side does not mean that your conduct was objectively, you know, wrongful. And that's really -- I think that there is great significance to the district court's ruling. I'm not saying that in every case, it would absolutely be dispositive. I think you have to look at what was the, you know, the clarity of the law, what was the reasoning of the district court. But what the Ninth Circuit did is that it, in essence, said that you can't rely on creative but unlikely answers to issues of first impression. Well, if an administration official goes to a lawyer in the administration and asks about a course of conduct, and is told, well, it's completely an issue of first impression, there is probably a 40 percent chance of success, do you say it's reckless to proceed on that basis?
06-84 +++$+++ 52269 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Well, just because an issue is one of first impression doesn't mean there's a high degree of uncertainty. The statute may be clearly addressed to that issue. It hasn't come up before.
06-84 +++$+++ 52270 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Your Honor.
06-84 +++$+++ 52271 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ First impression.
06-84 +++$+++ 52272 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It certainly -- this Court has made clear that if the language of the statute is very plain, then, of course, that can be noticed, that can be adequate warning. But certainly this statute doesn't satisfy that standard. Congress didn't provide the benchmarks that you have to use for comparison to determine whether there has been an increase in a charge or whether there has been an adverse action based on the consumer report. You need benchmarks to answer those questions, and there aren't any regulations and there were no cases. If I could save the balance of my time for rebuttal.
06-84 +++$+++ 52273 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Counsel. Ms. Millett.
06-84 +++$+++ 52275 +++$+++ FALSE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: The Court of Appeals correctly concluded that willfulness in the civil context, as is used here, includes a reckless disregard component or a recklessness component. That is what this Court has held in a number of cases that have similar uses of willfulness focused on a departure from the law, have held. Thurston, Richland Shoe and Hazen Paper are the three that have been most discussed in the case, in the papers here. But where the Ninth Circuit misstepped here was in the application of that standard. And in particular, we agreed with Petitioners that when it concluded that a creative but unlikely position constitutes recklessness, it erred. Recklessness speaks an extreme deviation from an ordinary standard of care. It requires that the defendant act in the face of or fail to act --
06-84 +++$+++ 52276 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It is a subjective standard or an objective standard?
06-84 +++$+++ 52277 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It has both in this context. It is, I think, first and foremost, an objective component, because there is -- this is a civil case. It's not purely subjective. And that objective component is very important because that is what makes the act or inaction reckless, and that is the risk. There has to be an objectively high and obvious risk.
06-84 +++$+++ 52278 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So if the potential liability, as in these cases, is huge, then you have to be even more careful because there is liability so great. So is it the greater the liability -- the greater chance of recklessness, the greater the potential liability?
06-84 +++$+++ 52279 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, to the extent you're talking about dollar liability, I don't think that's true. I do think it's fair to say that in recklessness generally in the tort law, the more serious an injury that could result, can -- we'll tolerate less risk. If the risk is causing serious bodily injury or death to somebody, we'll -- the law will tolerate a lesser degree of risk than it will if, if it's simply causing, you know, a delay in something or a sort of paper injury or maybe even a dollar injury. And it's not set. It's a variable calculation. So in that sense, it is. I don't think that when we talk about a high and objective risk in this context, we are talking about the dollars that a, that a company would have to pay, although I'm sure they are interested in hearing about that from their lawyers. What we are talking about here -- and this is a very unusual statute the way it's written -- the liability itself, not just the damages, but the liability itself turns upon the extent of departure from law. You have to -- there is no recovery here like there is in almost -- or commonly in Federal statutes for just a violation. That isn't it. You have to show either a willful violation or a negligent violation, and that requires a determination not only that the defendants violated the law, but a determination as to how much, how far, how many standard deviations from correct their position was and that is an objective determination. Once an objectively high risk has been found by a court, then -- then the case can shift to looking into subjective things. I think a plaintiff would be entitled, once an objectively high and obvious risk has been found by the court, to rely on that, and allow a jury to, or a judge, whoever is deciding the case, to infer the existence of willfulness from that. And that's often when defendants -- I'm sorry.
06-84 +++$+++ 52280 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ May I also ask, do you agree with the Petitioner on the meaning of adverse action?
06-84 +++$+++ 52281 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, we agree with Respondents on the meaning of adverse action.
06-84 +++$+++ 52282 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Correct me if I'm wrong. You think if I have an insurance policy, I'm paying a certain rate, they look at my credit report and they say, you know, good news, we're going to lower your rates, that's an adverse action because they might have lowered the rates even further if they had notified me about the credit report and there were some errors in it?
06-84 +++$+++ 52283 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right. It's a complicated answer, in part because that assumes that you have an existing account and you're not an initial account here. And when you have an existing account, there's a definition of adverse action for insurance provisions, but in iv there is a separate, there's another definition, and this is on, on page -- sorry. Excuse me. On page 3A of the appendix to our brief, iv under big I -- I'm sorry, there's a lot of provisions -- talks about reviewing an existing account, and it cross-referenced another provision which talks about reviewing an account for purposes of termination. And that would include, in our view, not only completely canceling it, but terminating the existing and charging you more for allowing you now to pay a new rate. So which would govern in that particular context is a little bit harder. But it could, and here's logically why, because I think the understanding of "increase" that's at issue here is one that's very basic to the operation of this statute, and that is, did the content of your information in your credit report, if it had been better, could you have had a better rate or a better deal.
06-84 +++$+++ 52284 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Right.
06-84 +++$+++ 52285 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So have you been hit in the pocketbook.
06-84 +++$+++ 52286 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So if they lower, if they lower the rates, you still say that that fits the meaning of adverse action because they might have lowered them further if the information hadn't been erroneous?
06-84 +++$+++ 52287 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It could have, and here -- in this sense, it could be: In the same way that I, sort of the flip side, but in my office, if everybody in the hallway gets a 5 percent salary increase and I only get a 1 percent salary increase, I am certainly better off, but if the reason I got a lesser increase is because of my gender or because of my credit report, it's an adverse action. So the fact that you're doing somewhat better doesn't mean --
06-84 +++$+++ 52288 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That isn't how the statute defines it.
06-84 +++$+++ 52289 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Excuse me?
06-84 +++$+++ 52290 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ The statute says an adverse action is an increase in a charge for -- in connection with underwriting.
06-84 +++$+++ 52291 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But it also --
06-84 +++$+++ 52292 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's what it says. And then it says an increase is -- and if you take an adverse action, i.e., if you increase it, and your increase is based in whole or in part on information contained in a consumer report, you have to send the thing. How did you get -- in your example, there was no increase. I mean, in a charge. In your salary, it's a decrease in the salary. Same thing.
06-84 +++$+++ 52293 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The definition again on 3A includes not just increase, but includes an unfavorable change in the terms. And so it's not settled whether --
06-84 +++$+++ 52294 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You mean unfavorable change in terms, unfavorable change in terms.
06-84 +++$+++ 52295 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Exactly.
06-84 +++$+++ 52296 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, suppose you don't have, you don't have any terms because you never did it before. There's no change in terms.
06-84 +++$+++ 52297 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you're a new customer -- and again, I want to reiterate that, how this applies to existing accounts is complicated --
06-84 +++$+++ 52298 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You mean those words "change in terms" refer to rates, in other words? That's a rather odd way to refer to it. In one place, you refer to an "increase"; in the other place, you'd refer to it as a "change in terms." That's sort of an odd way to write a statute.
06-84 +++$+++ 52299 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you can have a change in terms that is not necessarily an increase. It could be you will no longer be entitled to a free rental car when your car is in for repair for some reason. That's not an increase.
06-84 +++$+++ 52300 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ No, no, I understand that. But what we're after is this. Everybody has a credit report, just about. You put it in and you give people the best possible rate conceivable, and now, how do you know that maybe there could have still been a better rate? And it can't be that the statute intends you to send out notices in such circumstances or you'd have to send notices whenever you read a credit report. Now, I think that's, I've overstated slightly, but that's basically the argument. So what's your response?
06-84 +++$+++ 52301 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And Justice Breyer, my response is that if the content of the information in your credit report would have made you -- had it been better information you'd have gotten a better rate, a better result, your pocketbook wouldn't have been hit as hard, you have a dollars and cents injury because of the content of the information, then you had an adverse action.
06-84 +++$+++ 52302 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay, so your response is just to repeat my question and say that's right?
06-84 +++$+++ 52303 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. If I could continue on that, if I could add on, if I could add on, the way insurance companies work is they don't have 3 million customers and 3 million rates. They have ranges and most of them will have a top tier. They may have specialized things for employees, but putting aside a specialized category, there's a top range and they will tell you, as they say in the briefs, that 10 to 15 percent of people fit in there. So they know what the best rate is. They know what the next, above average rate, the standard rate.
06-84 +++$+++ 52304 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How do you fit, how do you fit that within the language of the statute? Is it, I fail -- you're a first- time customer and I fail to give you a, you know, a break that maybe you could have had. Is it a denial or cancellation of insurance? No. Is it an increase in, an increase in any charge for insurance? Is it a reduction or other adverse or unfavorable change in the terms of coverage or in the amount of any insurance? I find it hard to shoehorn your case into that language.
06-84 +++$+++ 52305 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, to begin with, that may be why Petitioners' position here certainly was not reckless and the Ninth Circuit erred. But we do think that the statutory language read as a whole supports this. It could be a denial of a particular term in an insurance contract. But you have to look at -- it's important to understand you look --
06-84 +++$+++ 52306 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I read the term as, as one of the Justices here does, not referring to the rate. The earlier part refers to the rate. An increase in any charge for, that's the rate. And then it speaks of change in the terms of coverage. I mean, that is, you know, whether it covers hurricanes, or in the amount of the insurance, whether you're insured for --
06-84 +++$+++ 52307 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Or it could be a reduction in the terms. I mean, these things are statutory construction issues to be litigated, and the important issue here -- and they are presented in this case. They're to be litigated and the important issue is that when there is fair debate about these issues insurance companies will not be held to be willfully violating the statute if they got the answer wrong. But I think on the, on the substantive question, it's important to read "adverse action" in light of, if I could just finish the sentence, in light of the definition of when a notice is required to be issued, which turns upon the content of the information in the report. Thank you.
06-84 +++$+++ 52308 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which is where?
06-84 +++$+++ 52309 +++$+++ TRUE +++$+++ MS. MILLETT +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And that's on page 6a on our appendix.
06-84 +++$+++ 52310 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you.
06-84 +++$+++ 52311 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel. Mr. Shorr.
06-84 +++$+++ 52313 +++$+++ FALSE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice and may it please the Court: When Congress intended to require a knowing violation of the Fair Credit Reporting Act, it expressly said so. It did not do so in connection with the claims here under Section 1681n(a)(1)(A). In each instance where Congress wanted to allow -- to require a higher mens rea, it said so and did so in connection with liability that was greater. They required knowing mens rea for the criminal provision. They required knowing mens rea to obtain the even higher statutory damages that are available under the act.
06-84 +++$+++ 52314 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ What do you say to the argument from drafting history that looks at the history both of little n and little o and it points out that as originally, in the original bill, little o providing for the actual damages required a finding of gross negligence? Little n used the word "willful" just as it does now, suggesting that willful would not include gross negligence or something close to gross negligence like recklessness. Then in, then in o, they changed the standard from gross negligence to mere negligence, but they made no change in n, which suggests that n stayed whatever it always was, and if the argument from contrast was that n probably meant knowing rather than reckless, it stayed knowing even when the standard was changed to negligence in o. What do you say to that argument?
06-84 +++$+++ 52315 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Souther, I think the only thing we can say about that is Congress reduced the culpability for the actual damages from gross negligence to negligence. I don't think that tells us much about willful means, what willful means as a separate matter.
06-84 +++$+++ 52316 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But the fact that they had originally drafted n as it is, in contrast to the original o, does tell us, doesn't it, something about what they had in mind in n. And they must have had something in mind, probably had in mind, something in n which was a standard higher than gross negligence.
06-84 +++$+++ 52317 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Justice Souter, I suggest that what you can infer from that is that, if anything, is perhaps Congress wanted to move, make clear that under o the actual damages aren't close to willful or reckless, so they reduced gross negligence to negligence in that circumstance. But that still doesn't tell us separately what "willful" meant, and of course "willful" had been interpreted by this Court in similar cases involving similar statutes to mean a knowing or reckless disregard. And I respectfully disagree with --
06-84 +++$+++ 52318 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, I mean, there's no question it has been and that is sort of the usual reading in the civil context. But we also keep repeating, you know, "willful" is a word of many meanings and you always look to the context. And here the argument is that if you look to the context of the, of the two statutory sections right up next to each other, you can draw a, an inference about what "willful" means.
06-84 +++$+++ 52319 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think if anything, Justice Souter, here the context should be the actual statutory terms used, and in Section 1681n(b) they expressly required the knowing standard and that's a knowing violation of the law, as Justice Alito's question seemed to draw out, a knowing impermissible purpose. And the statute directly defines what a permissible purpose is under this law. So that reference to knowing could not refer to a knowing, knowing the facts. And of course, willful in some sense always includes some knowledge of the factual circumstances. In addition, the logical structure of the act -- as I mentioned, we had negligence and actual damages. We have a reckless standard, a knowing or reckless standard for certain statutory damages, but then an even higher level for the criminal and higher statutory penalty provisions. And as I started to say, a willful, knowing, reckless standard is entirely consistent with how this Court has interpreted the term in similar civil statutes that were in fact passed about the same time the Hazen Paper case and Thurston and McLaughlin cases interpreting the ADA and the FLSA and other similar cases.
06-84 +++$+++ 52320 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Counsel, even if you're right about the standard, how can you suggest that it's willful here when you have no judicial construction, you have no administrative construction, you have the statutory language that at least the questions this morning have suggested is not perfectly clear? How can you suggest that the action of the companies on this case even under your standard was willful?
06-84 +++$+++ 52321 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, of course we believe and the statute is in fact clear, you do not need further interpretation by the Court.
06-84 +++$+++ 52322 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ So if we don't agree with you on that, you would lose on the application of the willfulness standard?
06-84 +++$+++ 52323 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If you don't agree with us --
06-84 +++$+++ 52324 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ In other words, your, your, your conclusion that this was a willful violation depends upon your assertion that the statute is perfectly clear?
06-84 +++$+++ 52325 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think that there is a level of objective component that the statute at least has to be understood by a reasonable person at some level using standard statutory construction. But that isn't to suggest that the statute needs to be interpreted by a higher court or even a district court for counsel to get guidance. And of course, in this case, there was no guidance supporting Respondents -- excuse me -- no guidance supporting Petitioners', defendants', position. In fact, the only guidance supported our position, including guidance from the FTC.
06-84 +++$+++ 52326 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You're talking about the Ball letter?
06-84 +++$+++ 52327 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I am talking about the Ball letter.
06-84 +++$+++ 52328 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That wasn't even binding on the commission, so why would that be regarded as authoritative?
06-84 +++$+++ 52329 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It was not, and we are not suggesting it is, although it's entitled to Chevron deference. But if you get past the minimal level of objective standard, the question becomes what indicia and markers were out there that would have guided this company as to whether there was a high risk that they were violating the act. And certainly the Ball letter, which was sent by the staff specifically to address this exact question and to guide insurance companies, gave notice and it said charging anyone a higher amount than the best available rate based on their credit score was an adverse action. And in addition, there was --
06-84 +++$+++ 52330 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, how could that be? I mean I agree that the statute is clear, but I think it's clear the other way. That is, if you look at the language, as you've just heard, if you look at the purpose it's very hard to reconcile with the purpose an instance where a person has continuous accidents. He's a reckless driver. His insurance company puts him in just a category below the bottom and they read his credit report and they discover, despite his faults, he always pays his bills on time. So they increase it, not to the top category, but they give him a much better deal. And you're saying this statute means that what I just described is an adverse action based on a credit report?
06-84 +++$+++ 52331 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
06-84 +++$+++ 52332 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. Okay. And then if you're going to say yes, I want to hear why yes, and then in light of the following: The little boy who says wolf. You're probably puzzled what I mean by that. I mean that if you're right in that interpretation, there will be tens of millions of notices going out and they'll have the same effect on the public that these privacy notices have today. We get them every day, dozens of them, and they go right in the wastebasket, because they will become meaningless because to an average person that notice will not mean that he better look at his credit report. It will mean throw it in the wastebasket. All right, now I've got the purpose, I've got the language, and I have what I think of as common sense. Now, you explain why it's obvious the opposite.
06-84 +++$+++ 52333 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is a different question. We've been talking about willful up to now.
06-84 +++$+++ 52334 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, and this is the adverse action question.
06-84 +++$+++ 52335 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ You haven't addressed adverse action at all.
06-84 +++$+++ 52336 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And I'm happy to do so now.
06-84 +++$+++ 52337 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Yes. But, was there anything further on willful? You said that the statute was clear enough and you had the FTC informal advice, but now we know that courts have divided on this question, right? On --
06-84 +++$+++ 52338 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Divided in the sense -- well, the Ninth Circuit of course overturned the district court's ruling so there's no current division, but if that's what you mean, yes, Your Honor. In a -- I guess I'll address quickly your question. There's additional guidance provided by the FTC that was subject to formal rulemaking and that was 16 CFR, I believe it's Part 601 Appendix C, and in that instance the FTC, again subject to formal notice and comment of rulemaking, said that the statute is defined very broadly and it includes any action that can even be considered to have a negative impact. And that plays in the subjective aspect as well, but addressing your question, Justice Breyer, first on the statutory language --
06-84 +++$+++ 52339 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's pretty sloppy lawyering, don't you think, any action that even be considered to have -- wow. This is a standard?
06-84 +++$+++ 52340 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was --
06-84 +++$+++ 52341 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Any action that can even be considered to have a negative impact.
06-84 +++$+++ 52342 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was guidance, Your Honor.
06-84 +++$+++ 52343 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ This is guidance?
06-84 +++$+++ 52344 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That was guidance. That was guidance to provide in the context of reading this statute, it should be read broadly.
06-84 +++$+++ 52345 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But you know, I would tell my CEO ignore that, that it's meaningless.
06-84 +++$+++ 52346 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In addition, the CEO would have the guidance provided by the Ball letter. But again addressing your question, Justice Breyer, an increase based on credit, if we had let's say an increase based on race, someone goes in and has a product to buy and there's the best rate, and they charge someone else based on their race a higher rate, certainly that's an increase based on credit. There's only one best rate.
06-84 +++$+++ 52347 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ But this is not an antidiscrimination provision. It doesn't say anyone who discriminates in the setting of race has to send out letters. It requires an adverse action. It requires an increase in the charge.
06-84 +++$+++ 52348 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And Your Honor, I was only using that example to try and explain the statutory language.
06-84 +++$+++ 52349 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It doesn't explain it because if you have an increase in the charge based on race, of course that's an increase based on race.
06-84 +++$+++ 52350 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, here we have --
06-84 +++$+++ 52351 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And if you refuse to give a person the best rate, and lower his rate but not the best rate, based on race, that is not an increase based on race. That is discrimination based on race.
06-84 +++$+++ 52352 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You're charging someone more based on credit.
06-84 +++$+++ 52353 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ That's true, and it's a discrimination, but you didn't increase the rate. You decreased it.
06-84 +++$+++ 52354 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think --
06-84 +++$+++ 52355 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ It's still a discrimination, it's still unlawful.
06-84 +++$+++ 52356 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Applying it to credit, a natural definition that is charging someone more than you charge others is an increase.
06-84 +++$+++ 52357 +++$+++ TRUE +++$+++ JUSTICE ALITO +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When you say more, in order for there to be an adverse action there has to be an increase or an unfavorable change. And when you have an initial application you have to figure out what is the baseline in order to determine whether there has been an increase or an adverse action. And you and the Solicitor General just assert that the baseline in that situation is the best possible rate that you can get, but I don't understand where that comes from.
06-84 +++$+++ 52358 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because charging someone more than someone else who qualifies for that better rate based on their credit, is increasing them, charging them more, but it's also evident from the statutory purpose, which I think was a question you asked --
06-84 +++$+++ 52359 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Let me look at the language. Go back to give me -- because in ordinary English, which I hope I speak, it is not an increase, but maybe there is a technical term in the technical language of commercial law or in FTC law where the word increase means decrease. And if you -- is there anything you want -- no. It's a serious question, at least if you want to cite me to some authority that uses this word increase in the way you just suggested.
06-84 +++$+++ 52360 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We believe that it's a standard dictionary definition, to charge someone more for insurance than they would otherwise qualify for is increasing their charge.
06-84 +++$+++ 52361 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Which dictionary shall I look at?
06-84 +++$+++ 52362 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think we can look at any dictionary. I don't have a cite, Your Honor, but --
06-84 +++$+++ 52363 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ They're making this argument, and I think you got close to it a minute ago when you alluded to statutory purpose. I think this is what's behind, and you tell me if I'm wrong. One purpose of the statute is to alert a consumer that the consumer's credit report may contain errors which are doing the consumer some kind of damage.
06-84 +++$+++ 52364 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, Your Honor.
06-84 +++$+++ 52365 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ And you want this consumer alerted so the consumer can ask to see the report and correct it if possible.
06-84 +++$+++ 52366 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's exactly right.
06-84 +++$+++ 52367 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Reading the adverse action the way you read it, it would give the consumer or consumers a tip-off in the maximum number of cases. In every case in which the consumer might have done better if the credit report had assumed different facts, on your reading theoretically, the consumer is going to say I want to look at that report and correct it if it's wrong. But isn't the fallacy of that argument the fallacy of saying because that is one object of the statute, every term within the statute has got to be read in a way that maximizes the effectuation of that object? And the trouble that we're having on the bench is that discrimination and increase are different terms. Increase says the rate actually goes up from a baseline that the consumer previously had, whereas discrimination does not. And your reading in effect, increase to mean discrimination in order to maximize the likelihood that the consumer will look at the report, isn't that the basis of your argument?
06-84 +++$+++ 52368 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I think it has to be an increase based on some aspect, but the only way to give effect to that statutory purpose is an increase above what you would otherwise qualify for had you had better credit and of course --
06-84 +++$+++ 52369 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Well, that's a way to give every conceivable effect to that policy. But the statute in drafting adverse, or drafting the terms of adverse action, may very well have said we don't want to give every conceivable effect to this purpose because if we do, we'll get into the situation that Justice Breyer described. Everybody will be getting notices and the notices will be meaningless.
06-84 +++$+++ 52370 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think the notice is problematic because you're alerting the consumer to check that the information that the insurance company expressly relied on to increase your charge --
06-84 +++$+++ 52371 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ To set the charge. I mean, that's circular. To set the charge that it gives you.
06-84 +++$+++ 52372 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I don't think you need a prior charge to suffer an increase. If I walk into a candy store and I've never purchased that candy before but the best price that day is 5 cents but they say we're going to charge you 10 cents, I've certainly suffered an increase.
06-84 +++$+++ 52373 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ By that you're talking linguistically, but I am interested in the purpose. So I looked up on the Internet approximately what percent of the people have the best credit score and that's about 1 percent. So 99 percent of the public doesn't have the best possible credit score. Now I take it that means that you could in fact, if it's even roughly right, have 99 percent or a little less or even perhaps a little more when they look at that report that, since it's not perfect in 99 percent of the cases, it's quite possible that they won't get the best conceivable rate which might be reserved for just perfect people. And if that's so, in 99 percent of the cases they'll send out notices. And that's why I asked my question about the boy who calls wolf. What will happen if 99 percent of the people who apply for insurance or any other thing get notices? I suspect that this is only intuitive, that the notices are more likely to go into the wastebasket than they are if there was really a decrease. Now, do you have any light you can shed on that?
06-84 +++$+++ 52374 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Sure. The -- as an initial matter, it's not the perfect credit that is the standard, it's whatever would qualify you for GEICO's best rate. And that's a much broader standard. We don't know the exact amounts but if you look at GEICO JA 6768, they have fairly broad tiers, maybe five or six. And of course not everyone is going to get the notice. If your driving record totally eliminates -- if you have great credit but your driving record eliminates the possibility that you qualify for the better rate, you wouldn't get notice in that circumstance either. But the key to the notice is, if I have very good credit but the information that the insurance company looks at is incorrect, I will be charged more based on incorrect information without ever having the opportunity to tell the insurance company or whoever is collecting that information for them, you've charged me the wrong amount and I in fact qualify for that better rate.
06-84 +++$+++ 52375 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Don't you have that right independently, though, every year to look at a copy of your credit report?
06-84 +++$+++ 52376 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, what's significant here, that has been added to the statute in the last two years. But since 1970, Congress's concern is giving notice at a critical time, when the insurance company tells you we are relying on it and we may have taken an adverse action. I wanted to also mention, here it's not just an increase. There's also been a denial, and that Mr. Edo applied for insurance from GEICO, and was denied insurance with the stand-alone company GEICO General, so that is also an adverse action under the act.
06-84 +++$+++ 52377 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ When you say you look at the increase with respect to the best credit rate, why is that? Why wouldn't you look at it relative to say the average insured who walks in the door?
06-84 +++$+++ 52378 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because that -- GEICO's argument, and I think that's what they want, presumes they're looking at accurate credit information. And the problem is, Congress has always told that there is significant inadequacy in the credit information. I think it's cited in the National Consumer Law Center brief. In 1996, Congress was told that the error rate in consumer information was 50 percent and there was a 20 percent serious error in the rates. Under GEICO's interpretation --
06-84 +++$+++ 52379 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I don't understand what pertinence that has to my question which is, why do you get to pick the best credit report as the baseline from which you would measure your hypothetical increase?
06-84 +++$+++ 52380 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because under GEICO's theory of the statute you may never get notice, even though you're being charged more for insurance based on inaccurate information, as long as you're not charge -- your charge doesn't move below average. So a lot of people who are in fact intended to be protected under this act will not be protected until their charge goes below average, even though the insurance company is continuing to charge them more based on inaccurate information.
06-84 +++$+++ 52381 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Why do we -- how do we know that they were intended to be protected in this way by getting this notice? That's the issue in the case.
06-84 +++$+++ 52382 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because going through the statute and the increase based on credit, and then the notice will give them the opportunity to check. Since the consumer here is the -- it's a system of checks and balances, and unless you give this consumer the opportunity to check that they are in fact using the correct information, it wasn't mistaken, it wasn't driven down by identity theft, you can continue to charge people more --
06-84 +++$+++ 52383 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Okay. So that's --
06-84 +++$+++ 52384 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- based on inaccurate information.
06-84 +++$+++ 52385 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Your basic argument is the statute, the definitions of adverse action have got to be read in a way that maximizes the occasion upon which a consumer will get a notice that may lead that consumer to ask to see his credit report. That's your basic premise?
06-84 +++$+++ 52386 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Both based on the premise and purpose of statute, yes.
06-84 +++$+++ 52387 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ All right.
06-84 +++$+++ 52388 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Briefly addressing the application of the standard to the facts in this case, we do think it's appropriate to remand for further consideration in light of some new developments. GEICO has just recently produced documents to us that addressly -- directly address the question of scienter here, so if there's -- if you go past a minimum threshold --
06-84 +++$+++ 52389 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I've read your reference to those documents. Explain why you think that's so important.
06-84 +++$+++ 52390 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Because those documents directly address the subject of standard here, that GEICO was reckless or understood their --
06-84 +++$+++ 52391 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How do those documents shed any light on recklessness? I didn't see that.
06-84 +++$+++ 52392 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm sorry, Your Honor?
06-84 +++$+++ 52393 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ How do the documents that you describe shed any light on the extent of their recklessness, if any?
06-84 +++$+++ 52394 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I want to be careful, because I had presented -- I asked to lodge them with the Court and I can quote them if necessary, but within those documents there is direct evidence that GEICO interpreted the statute exactly how we do, that not putting someone in the best tier based on credit --
06-84 +++$+++ 52395 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Who's GEICO? I mean, you're talking about particular lawyers at a particular level, an ongoing debate about what this law means. If you get one lawyer who says, you know, I think you could read it this way, does that mean that GEICO reads it that way?
06-84 +++$+++ 52396 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, Your Honor. In this instance, this document involves top level GEICO executives. And with respect to the advice of counsel issue, frankly it's a red herring. We have never asked to compel the Defendants in either of these cases or any of the cases we're involved in, to waive their privilege. They've got the right, of course, to offer advice of counsel as an affirmative -- as a defense in this case, but we don't believe it's necessary to prove our case to even reach what the counsel said. We believe we can prove our case based on the documents and subjective intent alone.
06-84 +++$+++ 52397 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ I still don't really understand this part of the case very much. Assume that a lawyer writes a letter saying you read it two or three different ways, read the statute, it's very ambiguous, and we think the government's reading is the better reading. And the executives think about it and they say no, we don't think that's right. Has that proved reckless disregard?
06-84 +++$+++ 52398 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ If the statute was clear and the guidance --
06-84 +++$+++ 52399 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ If the statute's clear. And of course, Miss Mahoney said the district judge thought it was clear, but the other way.
06-84 +++$+++ 52400 +++$+++ TRUE +++$+++ MR. SHORR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And with respect to the district court, we believe the district court here clearly erred, as the Ninth Circuit found. And the guidance -- that opinion certainly didn't precede the conduct that's at issue here. The only guidance, again, available at the time supported our reading of the statute. There was no guidance from and court or from the FTC, or from anywhere that would have supported Defendants' interpretation at that time. So that's another aspect of inquiry, the subjective intent of the Defendants. If there are no other questions?
06-84 +++$+++ 52401 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ RESPONDENT +++$+++ Thank you, counsel. Ms. Mahoney, you have four minutes remaining.
06-84 +++$+++ 52403 +++$+++ FALSE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If I could start by just responding to the issue of the new document, I just want to emphasize that this document was created by people who weren't lawyers. It was done before GEICO even started using credit to price insurance. They were -- said they were brainstorming about what the statute might mean. And I would point the Court to the supplemental excerpt of records at 504 where when GEICO implemented the policy that we're talking about here, the -- they said that the intent was that we would send to the people who were supposed to get the adverse action notice. With the early systems development we didn't have the ability to identify whether they were supposed to receive the notice or not; that was because they had not yet developed the way to do with what they call the neutral, where they compare how the applicant would have done if they hadn't taken credit, hadn't taken credit into account at all. And this is a procedure that's required actually in most States in order to ensure that those who don't want to allow access to credit reports or who don't have a sufficient credit history are not treated adversely in the meaning of those State laws, and that means worse than the average loss ratio. So there's nothing in this record, even if you take into account the documents they're talking about, to suggest that there was somehow a knowing or deliberate intent to try to violate the law. With respect to a few of the factual or -- issues that came up, Safeco estimates that approximately 80 percent of all consumers that they are selling new insurance to now have to get notice under the standards established by the Ninth Circuit. With respect to who can qualify for the top tier of credit, it's only, at least at GEICO, approximately 10 percent. So 90 percent of the consumers would not qualify for that. And the statute very plainly does not prohibit differential treatment based on persons with better credit, nor do State laws. And so the analogy as to race discrimination simply don't hold water, because there Congress has told you what the baseline is, you can't treat any person of a different race in a different way, and that's not true under this statute. And instead, it's quite reasonable, as GEICO has concluded, to simply say look, if we wouldn't -- if we're treating you worse than we would have treated you if we ever looked at your credit report, worse than if you had an average loss ratio for this criteria, we'll send you the notice.
06-84 +++$+++ 52404 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Why did they use credit reports? Is it just a hedge against late premiums and the cost of late premiums, or does it bear on risk factors generally?
06-84 +++$+++ 52405 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, generally there are about 15 factors that they look at to try to come up with a prediction of loss ratio, and someone who has a good credit history is generally regarded as responsible, and responsible people tend to make less claims. And so, again, it's just one factor of 15 though.
06-84 +++$+++ 52406 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Yeah. May I ask this question? The reading of the statute in subsection i about, in the charges for insurance advice, seems to favor your view. But subsection ii about denial of employment really seems to read in favor of the government's reading.
06-84 +++$+++ 52407 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well actually, I think that when you factor in employment, it has -- it has the opposite effect. Because what happens here is if you're using employment verification reports, consumer reports about employment, there are all kinds of consumer reports. How do you tell who had the optimal employment history? How could the baseline be the best employment history possible?
06-84 +++$+++ 52408 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ No. But my point is, it seems to me that getting a lesser salary, it just seems like the first applicant would be an adverse employment action under subparagraph ii, just -- do you see what I'm trying to say?
06-84 +++$+++ 52409 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That if you -- that in other words, if you gave someone a lower salary --
06-84 +++$+++ 52410 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ It adversely affects any current or prospective employee. Now the language in i isn't, it doesn't read that way. But the thing that's troubling me is whether you should interpret i in the light of what ii seems to say.
06-84 +++$+++ 52411 +++$+++ TRUE +++$+++ MS. MAHONEY +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think that if GEICO in this example, if you actually pay them less because you looked at their credit report, then GEICO would concede that that is in fact an adverse action. So I don't think it's inconsistent at all. Thank you, Your Honor.
06-84 +++$+++ 52412 +++$+++ TRUE +++$+++ CHIEF JUSTICE ROBERTS +++$+++ JUSTICE +++$+++ PETITIONER +++$+++ PETITIONER +++$+++ Thank you, Miss Mahoney. The case is submitted.
105original +++$+++ 52416 +++$+++ FALSE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ NA +++$+++  +++$+++ We'll hear argument now in No. 105 Original, Kansas v. Colorado. Mr. Draper.
105original +++$+++ 52418 +++$+++ FALSE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Chief Justice, thank you, and may it please the Court: Kansas would like to address three issues today. 50 years of success of the Court's river master on the Delaware River and 16 years of success of the Court's river master on the Pecos River demonstrate the wisdom of appointing a river master under appropriate circumstances on a river like the Arkansas River, which is the subject of this case. Secondly, the Court should affirm the neutral principle that prejudgment interest accrues on all damages owing at the time interest begins to run. And third, a 1-year compliance period would be consistent with the Court's prior rulings in this case and would preserve an essential right of Kansas and its farmers under this -- this compact that would otherwise be lost under the master's recommendation of a 10-year accounting period. With respect to this accounting period, I would note that in both prior opinions in this case, this Court has relied on the annual results of the Hydrologic Institutional Model, which is the standard for compact compliance in this case. In the first opinion in 1995, this Court distinguished between monthly and -- and seasonal use of the model, deciding that monthly use was too frequent, but that seasonal reliance on the model for determining useability under article IV-D of the compact was reasonable. When the case was back here in 2001, this Court reviewed the calculation of damages, which was done on a yearly basis. As you can imagine, the factors that go into calculation of damages vary from year to year, and so it is crucial whether the depletions calculated by the H I Model, as it's called, are accurate, sufficiently accurate, and reasonable to rely upon on an annual basis.
105original +++$+++ 52419 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Draper, correct me if I'm wrong. I -- I looked at these papers a while ago. I thought they did it on a 10-year basis and they just moved it up each year, using a different 10 years to calculate the -- the relevant amounts in the 10th year.
105original +++$+++ 52420 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is correct, Your Honor. It is a moving accumulation of 10 years of results.
105original +++$+++ 52421 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So they do use 10 years of figures to determine what the relevant year's water would be.
105original +++$+++ 52422 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor. In other words, the -- the annual determination includes the most current year for which there is data and the previous 9 years, adds all those up, nets out the pluses and minuses, and that determines whether in the year in question there is compliance with the compact.
105original +++$+++ 52423 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This will begin in 2007, as I recall. Is that --
105original +++$+++ 52424 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is the special master's proposal, yes.
105original +++$+++ 52425 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And what I don't understand is even -- even if we agree with you that it should be done annually, why -- why wouldn't you propose that it be done annually using the previous 7 years' experience that we now have and then, you know, ultimately by 2007, we can use the previous 10 years? I -- I don't understand why we have to do it year by year and forego even 7 years'benefit of -- of this methodology.
105original +++$+++ 52426 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I couldn't agree with you more in the sense that we should begin now with the accounting so that you look each year at the results of this standard, which has been approved by the Court, for compact compliance in that year only, and if -- if you accumulate it --
105original +++$+++ 52427 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. That -- that's -- I said just the opposite. I said I -- I don't know why we should begin looking for this -- at this year only using this methodology. Why shouldn't we average this methodology over the previous 7 years?
105original +++$+++ 52428 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, averages will tend to smooth out the results and will hide the effects during dry years, which is when the farmers in Kansas, who are the beneficiaries that Kansas intended to benefit -- and both parties realize that. They need this water --
105original +++$+++ 52429 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But your method -- your method will over-emphasize the dry years. So either way you have a -- a imperfect situation. In your case, year by year, and in a dry year, Colorado perhaps must over compensate, and if you have, say, 3 dry years in a row, then it's going to be -- work out to Colorado's disadvantage.
105original +++$+++ 52430 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I believe the -- the result is the -- is the opposite. If I may explain. The model, the -- the Hydrologic-Institutional Model, has been made as unbiased as possible. The one aspect in which we have identified a bias is that it favors Colorado during dry years. It tends to underestimate the depletions that would have to be replaced by Colorado.
105original +++$+++ 52431 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's the method that you're attacking, but if you were to do it year by year, wouldn't it be just the reverse?
105original +++$+++ 52432 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We don't believe that aspect of the model would be any different if we're doing it year by year. We'd simply be taking the results that are calculated each year under either approach and use those in that year so that if you have a dry year, you are -- are calculating in that year whether there is compliance and staying as close as possible to the true intent of the compact, which is to provide water when the farmers need it.
105original +++$+++ 52433 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Do you -- do you dispute what -- what the master found here, that the methodology is more accurate on a 10-year average than it is year by year?
105original +++$+++ 52434 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, Your Honor. The longer the period of time you take, the more the accumulated results of the model will match the measured --
105original +++$+++ 52435 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The actual year-by-year results. Right?
105original +++$+++ 52436 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, and I should point out that it's impossible to know what the right answer is. You can -- you can measure the flows and the diversions in the river and compare that to one of the runs of this model, but it's the difference between the two runs, one representing the compact condition, which is supposed to be met, and the other representing the situation with the wells operating. And it's the difference between those two whose accuracy is in question.
105original +++$+++ 52437 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but I -- I --
105original +++$+++ 52438 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And no one knows what that is.
105original +++$+++ 52439 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I understand that -- that the master concluded that even as to a particular year, the model will be more accurate if you use the average from the previous 10 years than if you just applied the model to a single year, that even as to the real results for that single year, the model will be more accurate if you use a 10-year average.
105original +++$+++ 52440 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I don't understand it that way. If you use 10 years, you are adding to the most recent year results 9 years of pluses and minuses that's going to, in most case, mask what happened during that next previous year. You will be looking at a 10-year accumulation of ups and downs and not analyzing what happened in -- in the year in question.
105original +++$+++ 52441 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Is part or all of the objectives of both the -- the decree and the 10-year model to conserve subsurface reservoirs?
105original +++$+++ 52442 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Not -- not directly, Your Honor. It -- it does preserve that reservoir in fact because depletion of that reservoir affects the stream flows, and it's the stream flows that are compacted here and that have up to now --
105original +++$+++ 52443 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, then -- well, then why isn't -- if -- if that's so, why isn't it that Colorado shouldn't get credit for the wet years in -- in -- on an average? You're concerned about the dry years. It seems to me that Colorado should be given some credit for the wet years when the subterranean reservoirs are -- are replenished. Or am I wrong -- am I wrong about that?
105original +++$+++ 52444 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think in general, Your Honor, you are -- are correct. The question about there are over deliveries by Colorado, I believe is what you're addressing, is there -- is there a way to give Colorado credit for that. And there is a way. There is a -- a -- an account in John Martin Reservoir, which is 60 miles above the State line, for those deliveries. When they are delivered there, if there is more delivered than is actually needed in that year to achieve compact compliance, that can be retained there and, except for a small effect of evaporation, is available to offset depletions in the following year.
105original +++$+++ 52445 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I thought that the compact specifically provided there shall be no allowance or accumulation of credits or debits for or against either State.
105original +++$+++ 52446 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct, Your Honor.
105original +++$+++ 52447 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, how does that comport with what you just said?
105original +++$+++ 52448 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Under those circumstances, the water that would be delivered to this offset account in John Martin Reservoir is not a credit that's accounted under the compact for that year. So it would not enter into the compact accounting for that year. It would not constitute a -- a credit, but it would be available as a practical matter to be used as a credit in the next year for current depletions. So there would be no carryover in compact accounting.
105original +++$+++ 52449 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I don't -- I don't understand that statement. You say it would be available to be used as a credit in a subsequent year. Do you really mean it would be used as a credit, or do you mean it would simply be there to be used?
105original +++$+++ 52450 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think your formulation, Your Honor, is -- is more correct.
105original +++$+++ 52451 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Okay.
105original +++$+++ 52452 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It would be there to be used, and it would not be a credit for accounting purposes. Yes.
105original +++$+++ 52453 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if it's not a credit for accounting purposes, then they're going to owe you just as much the next year even though -- even though you had more water the previous year.
105original +++$+++ 52454 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This is under the assumption, Your Honor, that they have already met their obligations in the current year.
105original +++$+++ 52455 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
105original +++$+++ 52456 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And it will be available as a practical matter to meet their obligations in a subsequent year and be accounted in that subsequent year. I would point out that this is very important for Kansas farmers that the -- the water be received when it is supposed to be delivered under the compact. If water is -- is not delivered, as required, in one year, it cannot be recouped in a following year, certainly not 10 years later, as would be possible under the special master --
105original +++$+++ 52457 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, then why are you using a 10-year model at all?
105original +++$+++ 52458 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's not a 10 --
105original +++$+++ 52459 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It seems to me what you're -- what you're saying is forget the 10 years. Just do it every year.
105original +++$+++ 52460 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's what we are saying, Your Honor. And the model is inherently a yearly model. It calculates actually results on a monthly basis, and we have used it -- and the Court has relied upon it -- on a yearly basis up to now.
105original +++$+++ 52461 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Why don't you do it on a monthly basis? Indeed, why don't you do it on a daily basis? I mean, the master found that this model really works if you -- if you stretch it out over 10 years. You say 1 year. Why don't you do it month by month?
105original +++$+++ 52462 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it -- it could be done that way, and in fact, Your Honor, Colorado uses parts of this same model in its own administration of groundwater pumping, the same groundwater pumping for purposes of protecting Colorado surface water users, and it requires replacement of water on a monthly basis. So it is -- it is possible. But we believe with the yearly accumulation that -- that we have relied upon so far in this case and that the Court has relied upon specifically for damages, that that is an appropriate accounting period for this particular purpose. And that is -- that is our proposal. The proposal of Colorado is no, let's wait 10 years before -- and -- and accumulate it with the other 9 years before we require any replacement. I would point out that the H-I Model, the Hydrologic-Institutional Model, is the best tool available for this purpose. It was endorsed by Colorado after the Court's first opinion in this case when it -- the Court approved using the model on a seasonal basis for the seasonal accounting of useability. At that time, Colorado gave up its own model in favor of the Hydrologic Institutional Model, and as you can see from the master's report, there have been several significant improvements in the model since that time. I would also point out the correspondence -- the close correspondence that exists between this case and the Pecos River litigation in the 1980's. There you had a compact that like this compact did not specify any specific quantity of water in the compact itself, but indicated that there was to be no depletions beyond the depletions that were occurring at the time of the compact with a few small amendments that I could -- I could mention. But the basic similarity of the compacts is that the status quo at the time of the compact was maintained. There was an inflow/outflow relationship that needed to be observed and was required to be observed by the compact. It was expressed explicitly in the Pecos River compact by a reference to an inflow/outflow method. In this case, it was expressed implicitly in article IV-D of the compact.
105original +++$+++ 52463 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The master found that the role of the river master in the Pecos case was quite different than the role of the river master you want to have appointed here. He found that the role of the river master in the Pecos cases was really ministerial.
105original +++$+++ 52464 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we do not agree with that.
105original +++$+++ 52465 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You don't agree with what?
105original +++$+++ 52466 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ With the description of the Pecos River master as being -- as having only ministerial duties, and I can explain why.
105original +++$+++ 52467 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Please do.
105original +++$+++ 52468 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. if -- if you refer to the appendix of our -- our blue brief, on page A-22, you will see that the opening section of the Pecos River master's manual sets out the inflow/outflow relationship that is to be observed in complying with that compact. This is the form of an equation. You can see y equals and a -- and a number there. In -- in our case, we have the -- the Hydrologic-Institutional Model, which benefits from several decades of increased sophistication in hydrologic analysis to do the same job.
105original +++$+++ 52469 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Pecos master can simply apply this formula, can he not, and get the results that the compact requires?
105original +++$+++ 52470 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He -- he is to apply the formula, Your Honor, but there's a great deal of judgment, professional, expert judgment that needs to be exercised in order to apply it. For example, you have to separate flood flows from base flows. When you look at the -- at the results of a -- of a gauge on a river, you can see how much water was in the river at particular times, but this has to be separated into two different kinds of flows that are treated differently under this compact.
105original +++$+++ 52471 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, one of the reasons I'm curious is that I believe the Pecos master is an engineer. He's not a lawyer.
105original +++$+++ 52472 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's correct.
105original +++$+++ 52473 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ He's also the cheapest master we've ever had. (Laughter.)
105original +++$+++ 52474 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it seems to me that the master you want appointed has got to be a lawyer and make legal decisions.
105original +++$+++ 52475 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I don't believe so. I think our master would be just as cheap. (Laughter.)
105original +++$+++ 52476 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What's the difference --
105original +++$+++ 52477 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. The question was what about the --
105original +++$+++ 52478 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What -- what relation do you or -- yes -- working relation do you anticipate, if -- if the river master is appointed, between the river master and the commission? Does he go first to the commission and try to get agreement or --
105original +++$+++ 52479 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, no, he would not formally interact with the commission, just as the Pecos River master does not formally interact with the Pecos River commission.
105original +++$+++ 52480 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, what can -- what can the river master do that the -- that the commission or authority can't do? I -- is the difference between the two of them -- call it a jurisdictional difference -- nil, but there is process difference in the sense that the river master could say do this or don't do that, whereas your -- your fear is that the authority is simply going to be deadlocked because everything has to be done unanimously? Is it a process difference?
105original +++$+++ 52481 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is a process difference, Your Honor. The --
105original +++$+++ 52482 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But for that, you wouldn't be asking for a river master then.
105original +++$+++ 52483 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if there were an authoritative way, such as a river master, by which the annual recurring exercise of judgment could be accomplished, we would not need the river master. But I don't --
105original +++$+++ 52484 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But aren't you bypassing what Congress set up? You have this interstate compact and this commission, which you're saying, well, it's ineffective because it has to -- there are three from each State and it has to do everything unanimously. But what about the commission's authority to call in an -- an arbitrator when they are deadlocked?
105original +++$+++ 52485 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That decision also requires unanimity, Your Honor, and in the one case I'm aware of, Kansas' suggestion of doing an arbitration was rejected by Colorado. It's -- but it's -- it takes unanimity to do anything under that compact administration, including the arbitration option.
105original +++$+++ 52486 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But you're saying Congress --
105original +++$+++ 52487 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Draper, could I ask you what is a matter of procedure? What is your understanding of -- of how one would go about challenging the river master's decision if one disagreed with it? Do you go to the special master? Do you come direct to this Court?
105original +++$+++ 52488 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, we have suggested that it be set up just as you have set up the Pecos River master. In other words, if there were an objection to the determination, the yearly determination, of the river master, it would be reviewable by this Court.
105original +++$+++ 52489 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Directly.
105original +++$+++ 52490 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Directly.
105original +++$+++ 52491 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And the special master would be out. The special master would be out of the picture, as you describe it. You -- the special master would be finished. The river master would take over. Has there ever been -- has this Court ever appointed a river master when the special master did not recommend it? And as I understand both Delaware and the Pecos River case, the special master recommended the appointment of a river master.
105original +++$+++ 52492 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I believe in both of those cases, the -- the special master was recommending the appointment of a river master, but I would point out that in setting out the criteria for appointing a river master, the Court did not refer to that factor as -- as being part of the consideration.
105original +++$+++ 52493 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As I understand the system you propose, the river master's decision would be appealable to us, and we would review it de novo. Is that right?
105original +++$+++ 52494 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We're suggesting the same scope of review as on the Pecos, which is clearly erroneous. This, however, is something that the Court could decide to do differently than the Pecos, but the clearly erroneous standard comports with the -- the way master recommendations are handled in the district court under rule 53.
105original +++$+++ 52495 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm very loathe to deprive either of the States of their -- their right to have this Court decide matters between them.
105original +++$+++ 52496 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, this would not deprive either State of that right. And in fact --
105original +++$+++ 52497 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it would if they can only come here and -- and overturn the river master if he's clearly erroneous. That's a -- that's a very high standard.
105original +++$+++ 52498 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there -- as I say, the Court -- the Court may set the review threshold as it sees fit.
105original +++$+++ 52499 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I -- I had thought that your proposal was de novo review. This is -- this is new to me, that -- that you want it clearly erroneous.
105original +++$+++ 52500 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I would -- I would say that we have -- we have mentioned the clearly erroneous review standard because it was in the Pecos framework. It is not essential to our proposal. A de novo review would be perfectly fine with the State of Kansas.
105original +++$+++ 52501 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Suppose the commission decided to appoint an arbitrator. Would the special -- pardon me. Would the river master then proceed independently and we'd have two different recommendations?
105original +++$+++ 52502 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As under the Pecos, Your Honor, if the -- if the compact administration, as it's called in the -- in the Arkansas Basin, is able to come to a resolution of an issue, then that would -- that would take care of that issue. It would be -- not be necessary to have the river master address that, and it would be an agreement of the States because it would either be an agreement because they had literally agreed before the -- or in the form of the Arkansas River Compact Administration or that they had agreed to binding arbitration and had settled it.
105original +++$+++ 52503 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, then it would seem to me, procedurally at least, the river master would have if not the legal, at least the practical obligation to refer things first to the commission.
105original +++$+++ 52504 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, the referral of matters to the commission is why we're here in the first place. It cannot act without unanimity. The State of Colorado, the State in possession of this resource, can veto each and every action of the compact administration.
105original +++$+++ 52505 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That was the deal.
105original +++$+++ 52506 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your -- yes. Your State agreed to it.
105original +++$+++ 52507 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That was the deal they came to. Why should we kick it over? They came to that arrangement, and it was approved by Congress, and now you come back and tell us, oh, this is too cumbersome. You should -- you should appoint this river master to do an end run around it. I -- I -- it doesn't seem to me to be fair.
105original +++$+++ 52508 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I don't believe that this is an end run any more than the enforcement of the compact is an end run around the administrative body that is set up in many of these compacts. Those are keep-in-touch type bodies. If they can agree on things, they are very useful, and the Arkansas River Compact Administration has been useful in areas where there can be agreement.
105original +++$+++ 52509 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No, but you -- you agree that this is the -- the authority here is more than a keep-in-touch group. Your problem with it is -- is not that you need something more than keep in touch, but that when you ask them to do something more than keep in touch, the other State has a veto. And -- and that simply gets you to Justice Scalia's objection. That's the deal you made.
105original +++$+++ 52510 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is the -- that is the nub of our argument against reliance on the Arkansas River Compact Administration, that you can't look at it to settle differences about the implementation of this Court's decree.
105original +++$+++ 52511 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What did the special --
105original +++$+++ 52512 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That is a --
105original +++$+++ 52513 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What did the special master mean when he said he recognized the unanimous vote problem, but he said, but the climate may be changing? The compact administration under the chairmanship of the United States representative may again be seen as the best way to administer their compact and settle issues. What was he talking about?
105original +++$+++ 52514 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Your Honor, I think he was talking about the hope that he has that the States could work more cooperatively now, despite the fact that it was on this river between these two States that this Court was first asked to resolve interstate river disputes between States in 1901, and we are here today still in dispute over this river.
105original +++$+++ 52515 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So there was nothing tangible behind his --
105original +++$+++ 52516 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Nothing tangible, Your Honor. We -- perhaps he was thinking of the settlement that we have achieved on the Republican River. That case started, was accepted by this Court. After rulings by this Court, it became possible to settle that case. It has now been settled. And the States involved in that litigation were Kansas, Nebraska, and Colorado. It was possible in that -- in that context. It has proven impossible in this context. And we can expect disputes to go on, as they have over the last century, if we do not have an impartial expert authority to resolve disputes between States that are going to come up every year. Every year there are questions. How do you take the data this year and put it into the H-I Model? While many of those issues have been settled, because different forms of replacement and other different circumstances arise, you have those every year. And if you follow the lead that the Pecos River cases of this Court give us, there is also the possibility to address the improvement of the tool for implementing the agreement of the States, and that is improving the Hydrologic-Institutional Model on occasion, as we have seen the master do over the course of this litigation. That is allowed under the Pecos River Decree, and we submit that it should be allowed under this decree as well. And that is when the master would be exercising the most judgment in our opinion. I would conclude by saying that a -- a river master is needed on the Arkansas to deal impartially and expertly with annual questions that must be resolved to implement the H-I Model, and that a 1-year compliance period will implement the intentions of the drafters of the compact and the needs of Kansas farmers and is consistent with the yearly reliance that this Court has already placed on the H-I Model. I'll reserve the rest of my time for rebuttal if there are no further questions.
105original +++$+++ 52517 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Very well, Mr. Draper. Mr. Robbins, we'll hear from you.
105original +++$+++ 52519 +++$+++ FALSE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Chief Justice, and may it please the Court: I think I will begin by discussing the river master since that's where Mr. Draper left off. I want to make it clear, first of all, that I disagree with the assertion that the Pecos River Compact and the Arkansas River Compact are similar in the way they operate. The Pecos River Compact did, in fact, specifically state that it was -- it intended to hold the level of -- of depletion of the system by man's development to the 1947 condition. The Arkansas River Compact, to the contrary, begins the -- the limitation clause by saying it is not intended to impede or prevent future beneficial development of the Arkansas Basin, provided that the waters of the Arkansas River are not materially depleted in useable quantity for existing use for the uses. So the -- the Arkansas compact contemplated that there would be a -- a more flexible effort at using the water of the river by water users in both States, protecting the existing uses in both States from that future development. Now, this -- this Court has appointed a river master in two circumstances. In both circumstances, as pointed out by Justice Ginsburg, the -- the special master recommended that because of the specific circumstances of the case, that in fact a river master was appropriate. That was on the Delaware River and the Pecos River. In all other cases that deal with this issue where requests have been made by -- by States without river -- without a special master's recommendation, the Court has declined to appoint a river master. There's a very good reason, I think, behind that. Colorado alone is the party denying interstate compacts in two equitable apportionment decrees. If every time a State is dissatisfied with its neighbor, is dissatisfied with how a compact operates, it is able to come to this Court and say, please appoint a river master, we're just having trouble with our neighbor, you'll become the water management -- the super water management agency for the country. You have river masters if you -- it's totally up to -- to your discretion. But if you were to follow this line of thinking, you end up supervising water distribution across the west and part of the east.
105original +++$+++ 52520 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the disputes are going to come up here eventually anyway if the States are intransigent. Ultimately it will be a dispute about the application of the compact and it will come back here anyway, won't it?
105original +++$+++ 52521 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Scalia, that is absolutely correct, but the difference is where compacts have mechanisms within them that are designed to work out these differences, I think it is in the Court's interest -- and Colorado's position is and the special master's position was it was in the Court's interest -- to refer these matters back to those compact administrations. You --
105original +++$+++ 52522 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Counsel, do you think it's any more likely today than in the past that the two States will be able to work out their continued disagreements?
105original +++$+++ 52523 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice O'Connor, I agree completely with the special master. The State of Colorado has proposed, as referred to in his ruling, that binding arbitration be used and has committed itself to participate in that. To the extent there -- there have been past conflicts, Colorado has said let's get them behind us. Let's return to the compact, congressionally sanctioned method for resolving our differences, and let's proceed down the road. We will --
105original +++$+++ 52524 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But -- but Colorado still has the veto in any given case on whether an arbitrator will be appointed. Is that right?
105original +++$+++ 52525 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is -- under the compact, that's correct.
105original +++$+++ 52526 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, yes.
105original +++$+++ 52527 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And so -- but -- but Colorado has made a -- a very clear commitment to the special master and does so to this Court that if arbitration is proposed, Colorado would participate. We do not as a State find it very acceptable to spend the time, money, and effort to litigate these issues. After all, we have farmers. Kansas has farmers. We need to get back to getting the water equitably resolved through the compact mechanism. That is our proposal. It was --
105original +++$+++ 52528 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So is it right then that -- let's imagine the special river master's name is Mr. Smith, and unlike me, he knows about this stuff. And he then -- you -- Kansas wants Mr. Smith to decide a certain number of issues. Call them issues on page 1, whatever they are. And as far as you're concerned, your client would say I'm happy to have Mr. Smith. Just don't call him a river master. Call him an arbitrator. So you're saying that when Kansas says they would do it except there's a problem of getting unanimity, you say the only problem is that you won't agree.
105original +++$+++ 52529 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ At the present time, that's the posture --
105original +++$+++ 52530 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Now, they're the obstacle to unanimity. So the keys are in their own pocket if they want Mr. Smith. That's your view.
105original +++$+++ 52531 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our view is if they want to arbitrate pursuant to the compact, the keys are in their -- in their pocket. We do not believe --
105original +++$+++ 52532 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So the problem can't be one of unanimity because your side agrees. I mean, you heard what he said. So I'm -- I'm trying to see --
105original +++$+++ 52533 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our side agrees, Your -- Justice Breyer, with -- with the concept that this matter should be returned to the compact administration to resolve the differences in that forum.
105original +++$+++ 52534 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and in that forum, you will agree to binding arbitration.
105original +++$+++ 52535 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In that forum, we will agree to binding arbitration.
105original +++$+++ 52536 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Binding arbitration will -- will mercifully keep this stuff off of our desk, won't it?
105original +++$+++ 52537 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, it will. (Laughter.)
105original +++$+++ 52538 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I want -- I want to make it very clear to the Court that the State of Colorado, different than the situation in the Pecos River, acted very aggressively to ensure that it promptly came into compliance with the -- with the determination that in fact depletions were occurring, impermissible depletions were occurring to the Arkansas River. Within 2 years, the State of Colorado's legislature had passed the appropriate legislation. The State engineer had passed rules and regulations, implemented them, and enforced them. The State had authorized millions of dollars in loans for the acquisition of replacement water, and -- and the State of Colorado -- your -- your ruling was in 1995. By 1997, it appears that the State of Colorado was in compliance with the compact. That is a significant and very difficult effort on the part of the legislature, the Governor, the attorney general, and the State engineer. We do not believe that this is anything like the Pecos River. Your master in this case has not said to you these parties are -- are torn, will not get together, and you need to have a master, a river master, appointed. In this instance, the State of Colorado took the exact opposite approach. They did everything they could to reduce the pumping of the wells sufficiently to allow Colorado to meet the terms of the compact, and that is an important fact you need to glean from the special master's report. Now, the -- the other -- the only other point I want to make on this is that the -- the -- it's -- it's very important, in deciding whether or not a river master is the appropriate course of action to determine -- and I -- I mentioned this earlier -- whether or not the Court wants to be in a supervisory position. I happen to agree that the States are entitled to seek redress of their concerns before this Court, and as you said in -- in Oklahoma v. New Mexico, you have a serious obligation to adjudicate disputes between the States where there are actual and existing controversies. And -- and the fact that you would have a river master would not eliminate the potential for those controversies. In our view, the only way that you can get this matter off of your plate and into the position that Congress recognized and -- and directed is to follow the special master's recommendation number 12. I'd now like to turn, if I may, to the issue of the accuracy of the model.
105original +++$+++ 52539 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ May I ask you a question, because you may not bother to talk about it otherwise, about punitive damages? Your opponent didn't seem to think it very important, but I have this question. Is it your view that the other State waived its claim to the punitive damages from 1985 back either by not arguing it today or by submitting the different set of figures at the time the -- the issue was before the master the last time around?
105original +++$+++ 52540 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Stevens, in response to your question, we believe that in fact the issue of prejudgment interest, or punitive damages, is law of the case in this matter. The special master set out a formula by which he proposed how the damages should be calculated. Kansas argued for actual value of money, a rather rigid theory of compensation, and the special master chose in fact a balancing of the equities approach. He suggested that the appropriate means to calculate those -- that prejudgment interest on the -- the nominal damages --
105original +++$+++ 52541 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Did he -- did he make that suggestion or did the other -- did Kansas make that suggestion?
105original +++$+++ 52542 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The special master ruled on how he believed the damages should be calculated.
105original +++$+++ 52543 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In this time around or in the preceding --
105original +++$+++ 52544 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In the preceding time around. And what he said was that the damages from 1950 to 1968 should be -- should -- should receive a inflationary increase to reflect the inflationary tendencies, but that they should not be dealt with under prejudgment interest. In other words, it shouldn't be compounded through prejudgment interest. Only the damages from 1969 forward should be compounded using prejudgment interest. Kansas did not except to that methodology. Kansas excepted to the fact that he didn't give them prejudgment interest on the damages from 1950 forward. In the opinion that you authored for the Court, you accepted the master's methodology, and you did one thing and only one.
105original +++$+++ 52545 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the master's methodology really wasn't at issue.
105original +++$+++ 52546 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The master's --
105original +++$+++ 52547 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The only issue before us, as I remember it, was the date from which the prejudgment interest would run.
105original +++$+++ 52548 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
105original +++$+++ 52549 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- that's all that was argued. And it seemed to me that if it had been a fixed sum rather than an -- a changing amount as years went by, that clearly we would have -- the interest would have run on the existing liability. But it's an unusual case because the damages are changing as time goes by.
105original +++$+++ 52550 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It is and I agree with you, Justice Stevens. It is an unusual case. But the -- the critical element here is that the master was looking for an equitable way to arrive at a damage sum.
105original +++$+++ 52551 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, except that, as I read his report, he was simply interpreting our opinion, best he could, on the second go-round.
105original +++$+++ 52552 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This -- this go-round?
105original +++$+++ 52553 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
105original +++$+++ 52554 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's correct, Justice Kennedy.
105original +++$+++ 52555 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and I think that's what's before us here. It -- it seems to me that your best argument for no interest post '85 on the pre-'85 damages is to say, well, it's uncertain, it's hard to compute, but that doesn't quite work because this Court -- and of course, the special master -- allowed damages -- the interest on post-'85 damages even though those are equally difficult to compute.
105original +++$+++ 52556 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It isn't the -- if I may, Justice Kennedy, it isn't the --
105original +++$+++ 52557 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So I'm -- I'm saying it seems to me that's your best argument, but there's a flaw in there.
105original +++$+++ 52558 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I understand. The -- but the -- in our view the State of Kansas was obligated to take an exception if it disagreed with the methodology used by the special master and adopted in Justice Stevens' opinion by this Court. There was a sum of damage that was calculated by that and reported to the Court: $38 million. By moving the year forward from 1969 to 1985, you automatically then reduce, by some degree, the amount of that damage calculation.
105original +++$+++ 52559 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, but did we -- your -- your view is that we entirely eliminated any interest on that past damage.
105original +++$+++ 52560 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Prejudgment --
105original +++$+++ 52561 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Pre-1985.
105original +++$+++ 52562 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The -- the special master's methodology, Justice Stevens, was that the damages in his third report from 1950 to 1968 should not, under a balancing of the equities, bear prejudgment interest at any point in time. They should only be advanced for inflation, which was a proposal Colorado made because Colorado believed that it -- the changing a 1950 damage to a -- to a 2002, or at that time a 1994, dollar value was only fair and reasonable. We opposed the concept of giving prejudgment interest because it would -- it would be -- it's as if -- if this were a commercial context, we would have been able to identify that there was a damage going on and the theory in your prejudgment cases is we could have put the money in the bank --
105original +++$+++ 52563 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But we rejected that as to post-'85 damages.
105original +++$+++ 52564 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You agreed that prejudgment interest, Justice Kennedy, should be applied to post-'85 damages, not to pre-'85 damages.
105original +++$+++ 52565 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, but our opinion didn't say it was just post-'85 damages. Our -- our opinion didn't -- didn't answer the question, and -- and the reason, of course, is we didn't actually think about it because nobody even -- nobody argued it at that time.
105original +++$+++ 52566 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Our view was that -- that -- our view is, Justice Stevens, that an exception needed to be taken if the master's methodology was under challenge.
105original +++$+++ 52567 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So in a way you really are arguing waiver I think.
105original +++$+++ 52568 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We are arguing law of the case. Yes, we are.
105original +++$+++ 52569 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Which is consistent with his failure to argue it today.
105original +++$+++ 52570 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- that is our position, Your Honor. I would like to, if -- if I may, move off of prejudgment interest. I would like to talk, while I still have a few minutes, a little bit about this model and the 10-year average.
105original +++$+++ 52571 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Can you give -- I'm -- I'm not sure I understand the dispute. Can you give me in -- in -- without using up all of your time, a -- basically a simple example to illustrate the difference between the two contending methodological positions?
105original +++$+++ 52572 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, I can, Justice Souter. Under the -- the master's formulation, which is agreed to by Colorado, the damages which occur in each year, 1950 through 1984, are -- are computed at -- in -- as nominal damages in the year in which they occur. They are then expanded by the -- by an inflationary formula which allows the dollar in 1950 to be calculated in a 2002 dollar. In 1985 and to the present, any damages that occur are advanced both for inflation, but then they are also awarded a prejudgment interest, which is compounded. In other words, if inflation is 2 or 3 percent through the period on a long-term average, but -- but investments are at 6 or 7 percent --
105original +++$+++ 52573 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I got you.
105original +++$+++ 52574 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- those damages advance. Colorado's -- Kansas' view is that commencing in -- in 1985, all of the damages from 1950 to the present should receive prejudgment interest. The difference then becomes, if you use the master's methodology, the -- the current amount of money in 2002 dollars which Colorado would owe Kansas is approximately $29 million. If you use the Kansas methodology -- and this is the impact of prejudgment interest -- it would be $52 million. Under the original formulation that was presented to the Court, the value under the master's formulation, which did not charge prejudgment interest on the '50 to '68 dollars, both States agreed that that would have been $38 million. So from Colorado's perspective, having succeeded in our -- in our exception that the year should be 1985 instead of 1969, we in fact, under the Kansas theory, lose some $20-some million in the proposition, which we don't believe is what the Court intended. Let me -- let me turn very quickly to the model, if I may. The -- the issue here is not Colorado's obligation to deliver water to -- to the river system. Colorado has both senior surface water rights and the State of Kansas that it has obligations to protect. Remember, the compact envisions that this subsequent development can't injure water users in either Kansas or Colorado. As a result, Colorado must ensure that on a monthly basis, water is placed into the river so depletions are -- are compensated for in the system as they occur. The problem here is not that process. The problem here is a model that is inaccurate. Beginning in your first report, you quoted with favor the special master's comments about this model in dealing with the winter water storage program, which was an issue which you agreed should be dismissed several years ago. You indicated that depletions shown were well within the range of error and it could not be told if it was an impact or an error that the model was describing.
105original +++$+++ 52575 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Counsel, your time is running short. This is very important. I think you misunderstood Justice Souter's question. He asked you to give us an example of the Kansas versus Colorado approach as to the 10-year model. You answered him about the interest. Could you --
105original +++$+++ 52576 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I'm so sorry.
105original +++$+++ 52577 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- could you tell us really --
105original +++$+++ 52578 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
105original +++$+++ 52579 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Give us an example of the difference between the two.
105original +++$+++ 52580 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. The difference between the two is this. We believe that the model over a long period of time, as it's developer, Mr. Durbin, said, is reasonably accurate. We -- we agree with that, and we are willing to use it like that. But that means you have to use -- look at it over extended periods of time. Our view is that you simply look at the model, which is predicting over-deliveries and under-deliveries, predicting them. They don't have any relationship to what Colorado is really putting into the system. They are predictions. And in some years where you -- where you look back and you know from the gauges the model is over-predicting a significant amount, you -- you want to be -- and you know in a subsequent year it's going to under-predict, you want to allow that to smooth out so that you are, in fact, getting close to what's really going on. It is not an effort to carry dry-year depletions into wet years or vice versa. It is, in fact, an effort to allow the model's inherent inaccuracies to play out so that you get a more accurate result in each 10th year.
105original +++$+++ 52581 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Why doesn't -- why isn't the result that you -- of -- of your position that you would get a more accurate set of predictions if all you were making was a 10-year calculation, but you will not get a more accurate set of predictions with respect to any one year? And in fact, it is with respect to any one year that's important under the compact. In other words, they -- they plan every year, not every 10 years. So why does a 10-year accuracy help you in solving the practical problem you have on a year-to-year basis?
105original +++$+++ 52582 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ As proposed by the special master, the model is not used every 10 year -- or every 10th year. It's used every year. If you're looking at --
105original +++$+++ 52583 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I know. But it's used on the basis of 10-year figures which will not be accurate particularly with respect to any given year even though they would be -- they would be accurate if you were only interested in a calculation every 10 years.
105original +++$+++ 52584 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You are making --
105original +++$+++ 52585 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Does it -- can -- can you -- can you get a better prediction on a year-to-year basis is what I'm saying.
105original +++$+++ 52586 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You get a better prediction on a year-to-year basis. A -- a better prediction if you're looking at the model over 10 years versus looking at the model just running it in a given year. Colorado does not want to be in a position, Justice Souter, where we are accused of violating the compact because there is an inaccuracy in the tool that is being used.
105original +++$+++ 52587 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you --
105original +++$+++ 52588 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It --
105original +++$+++ 52589 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Robbins.
105original +++$+++ 52590 +++$+++ TRUE +++$+++ MR. ROBBINS +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you.
105original +++$+++ 52591 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Feldman, we'll hear from you.
105original +++$+++ 52593 +++$+++ FALSE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Mr. Chief Justice, and may it please the Court: It's the position of the United States that -- that we agree with Colorado and with the special master that a river master should not be appointed in this case. The compact between the States of Kansas and Colorado sets up a commission that is responsible for implementing the obligations in that compact, which has to do with Colorado's obligations to deliver a certain amount of water to Kansas. The commission is also charged with investigating violations of the compact, and the compact includes a dispute resolution mechanism of submission to binding arbitration if the -- the States agree to that. The -- the commission also certainly could use other dispute resolution mechanisms and certainly would have the authority to do if it wanted to. The States have agreed to that. Congress has enacted it into law, and this Court should permit the parties to use that mechanism to resolve any disputes that might arise in the future rather than putting a river master in place under the authority of this Court. Now, the Court has -- itself has frequently stated that consensual resolution of disputes of this sort is preferable to litigation. As the special master pointed out, in the two river basins just north of the Arkansas River, the Republican River and the Platte River, the parties recently, after having a dispute, including these very same two States in one of them, have come to a consensual resolution of the dispute that they had. And I think that does show, as the special master pointed out, that these -- the States can -- in fact, the disputes in those cases also had to do with groundwater and the effect of well pumping, among other things. As the special master pointed out, I think that shows that the States can use a consensual mechanism to come to a resolution, and this Court ought to continue its often-stated preference for consensual rather than litigative type of solutions to problems of this sort. If the Court were to appoint a river master in this case, then I think the question would arise in any future case in which you have two States that have conflicting interests with regard to an ongoing activity, as what happened with river compacts, equitable apportionments, and in other areas, whenever there's an inherently conflicting interest, the Court would have an appeal that it should appoint a master to oversee a decree or judgment. And I think rather than -- that -- that would be directly contrary to the Court's other statement in the area, which is not only that the Court prefers and that it's far preferable to have consensual resolutions, but also that the Court does not favor appointing agents or functionaries to carry out its decrees.
105original +++$+++ 52594 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ None +++$+++ So I guess we made a mistake with respect to the Pecos River and what was the other one? Delaware?
105original +++$+++ 52595 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Yes. The Pecos River -- I mean, there were a couple of differences, in addition to the ones that Mr. Robbins pointed out. One difference is that not only the special master, but the parties in the Pecos River case -- neither party objected to the appointment of a river master or even to the more extraordinary step of clothing the master with authority to make determinations that would be reviewable only under a clearly erroneous standard. In this case, there is a party that objects to it. And I would -- I think there's another difference that's important that the Court ought to keep in mind. At the time the Pecos River master was appointed, Federal Rule of Civil Procedure 53(e), which the Court has said that the Federal rules provide a guide for this Court's original cases, rule 53(e) provided that findings of fact by a master appointed by a district court shall be reviewed under a clearly erroneous standard, and the Court, indeed, used that mechanism for the -- it provided that the river master in that case would be reviewed under that standard. As of 2003, rule 53 -- it's now rule 53(g) -- provides that masters appointed by district courts said their findings shall be reviewable only under a de novo standard unless the parties agree otherwise. Therefore, at the present time -- and again, following the Court's rule 17.2 that says that the Federal Rules of Civil Procedure should be guides -- and I think they are a useful guide -- the appropriate course here, if the Court were to appoint a river master, would be to appoint one whose findings will be reviewable de novo. But that itself raises problems because if the findings of the river master are reviewable de novo, it's really just a continuation of the current litigation and it doesn't really advance things any. The parties will submit the evidence to the river master. He'll make his determinations, and then they'll come to the Court. That's really more what the special master does at the current time. So I think that under all of those circumstances, both the Court's preference for a consensual resolution of disputes, its disfavoring of appointments of agents to carry out its decrees, the Court's recognition that it's the Court's obligation to decide cases of this sort and it can't -- it's not the obligation of other parties to do that, and the commission that Congress has put into place specifically to deal with this kind of problem, and with a specific recognition that there could be disputes and a provision for a dispute resolution, I think that the Court should not appoint a river master in this case. As far as the prejudgment interest issue, it's the position of the United States also that the special master and Colorado are correct, and prejudgment interest should not be awarded. I think it's a familiar principle in -- to this Court in litigation that if a party -- when the time comes to make objections, a party has to make all of its objections if it wants the Court to hear them. In this case, the special master came up with a recommendation in his third report about how to -- what should happen with prejudgment interest, under which the early years -- the -- the amount of the damages in those early years would never be subject to prejudgment interest. Now, Kansas objected to that and said we should move the year back to 1950. We should get prejudgment interest on everything back to year one. But they never made the objection that if you -- if the Court disagrees with that, which it did, that the method that the master had used to deal with the prejudgment interest as of 1969 was incorrect. That was the time that Kansas should have brought it to the Court and Kansas didn't do that.
105original +++$+++ 52596 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ None +++$+++ So you're arguing they've waived the -- your argument is they waived the objection basically.
105original +++$+++ 52597 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ Yes. I think --
105original +++$+++ 52598 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ None +++$+++ I don't think you used the word waiver in your brief, and I don't think that Colorado did either. But I guess that's the essence of your argument.
105original +++$+++ 52599 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ I -- I actually think it's a combination of two things. On the one hand, what the Court actually said in its opinion was that the special master had awarded damages only insofar as necessary to satisfy the demands of equity, something to that effect.
105original +++$+++ 52600 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ None +++$+++ Would you not agree that if it was a one-shot injury, not an ongoing injury, that the normal reading would be the injury -- the interest should run on the laws?
105original +++$+++ 52601 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ I think in the normal contract case that doesn't have the kinds of equities that this case had, that is the current rule, that prejudgment interest would run. But this kind of case involves damages that go back 50-odd years. It could have been --
105original +++$+++ 52602 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ None +++$+++ And it involves continuing, ongoing --
105original +++$+++ 52603 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ And they're -- they're ongoing that are different in amount in every year, that it's not merely that Colorado was violating the compact as of 1950, although it probably didn't know it at that time, but that Kansas didn't bring a suit until 1985 and the fact, I think, that Colorado has always agreed to pay -- to adjust the damages for inflation. So, in essence, Kansas is getting a portion of what the prejudgment interest would normally cover for those early years. I think if all that's put together, I think the Court's conclusion that the master's conclusion was just the amount that equity dictates was correct, and that if Kansas didn't like that, it should --
105original +++$+++ 52604 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ None +++$+++ Mr. Feldman, the Government takes no position on this 1-year versus 10-year computation?
105original +++$+++ 52605 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ No, the Government doesn't have a position on that.
105original +++$+++ 52606 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ None +++$+++ Too hard for you? (Laughter.)
105original +++$+++ 52607 +++$+++ TRUE +++$+++ MR. FELDMAN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ None +++$+++ That issue involves the particularities of this case and the Government doesn't really have a particular interest in how that gets resolved. If there's no further questions, that concludes the argument.
105original +++$+++ 52608 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ NA +++$+++ None +++$+++ Thank you, Mr. Feldman. Mr. Draper, you have 2 minutes remaining.
105original +++$+++ 52610 +++$+++ FALSE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Chief Justice, and may it please the Court: I want to state that we do not believe that we waived our position on the interest calculation as was just suggested in the -- in the last colloquy. The reason that we didn't do that is because we filed an exception last time against every respect in which the special master was not recommending full interest. And it turned out that the Court chose the -- the test that we now have, which is a relatively easy test to apply. It has certain incentives that grow out of it that make sense. And we believe that we sufficiently excepted to that. If look at our brief from that exception, the one in -- in support of our exceptions, in particular -- particularly to page 25, footnote 8, we specifically addressed the issue that the -- the master was not allowing any interest in that 1950 through 1968 period.
105original +++$+++ 52611 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You're talking about the brief in the earlier case.
105original +++$+++ 52612 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the earlier case, to the third report of the special master. I would -- also, on the other points that were raised, you need to be --
105original +++$+++ 52613 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ This is a lot of money involved, and -- and you certainly didn't argue it here. I don't recall that point being argued. And with all that money being involved, I would have thought it would have been argued.
105original +++$+++ 52614 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, we were -- we were arguing the larger issues on interest, but we were asking that interest not be denied to us during that '50 through 1968 period. That was very clear from our briefs, and we specifically singled out that part of it in that footnote. So I don't believe it's appropriate that -- to conclude that we have waived that argument. And I would point out also that the only reason that it was done that way -- and the calculations of the parties did -- did in connection with that review -- is because the special master required it. There is no other reason that we did it. We did not volunteer to do it that way. We did not like doing it that way. The master said that's the way it's going to be in my recommendation. How much would that amount to? We did not agree in any way to that part of the calculation. I would also point out that with respect to the amounts involved, that you need to be careful. The amounts cited by Mr. Robbins are not from the same year.
105original +++$+++ 52615 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you. Thank you, Mr. Draper.
105original +++$+++ 52616 +++$+++ TRUE +++$+++ MR. DRAPER +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor.
105original +++$+++ 52617 +++$+++ TRUE +++$+++ CHIEF JUSTICE REHNQUIST +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The case is submitted.
128orig +++$+++ 52621 +++$+++ FALSE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++  +++$+++ We'll now hear argument in Alaska against the United States. Mr. Franklin.
128orig +++$+++ 52623 +++$+++ FALSE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Justice Stevens, and may it please the Court: Because title to lands underlying navigable waters is an inseparable attribute of State sovereignty, this Court has long held that there is a strong presumption that each State receives title to such lands at statehood. Under the Court's precedents, the United States cannot defeat the State's title unless Congress has definitely declared an intention to do so or has otherwise made that intention very plain. Turning to the Glacier Bay claim in this case, the United States asserts that it received title to the submerged lands underlying the bay at statehood, but there is no express statement, an unambiguous statement by Congress evidencing an intent to defeat Alaska's title. To the contrary, the proviso to section 6(e) of the Alaska Statehood Act, which is the only statute the United States identifies as ratifying the purported reservation of the bay, in fact shows that title remains with Alaska. Under the plain language of the statute, the proviso applies only to a subset of the lands that would otherwise have been transferred to the State under the main clause. And this is important. In this case it is undisputed by both of the parties and by the Special Master that the Glacier Bay Monument was not included within the main clause. The submerged lands, therefore, did not --
128orig +++$+++ 52624 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, counsel, you -- apparently you agree that the U.S. retained title to the uplands in Glacier Bay National Monument under section 5 --
128orig +++$+++ 52625 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Your Honor.
128orig +++$+++ 52626 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- of the statehood act.
128orig +++$+++ 52627 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely.
128orig +++$+++ 52628 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And why was Federal title to the monument not sufficient to retain title to the submerged lands as well without reference to section 6(e) at all?
128orig +++$+++ 52629 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Because of section 6(m), Your Honor. Section 5 of the Alaska Statehood Act provides that the Federal Government retained all of the property it previously possessed with one important exception, except as provided in section 6. Section 6 has two exceptions within it that are potentially relevant here. Section 6(m) incorporates the Submerged Lands Act and thereby provides that Alaska was to receive title to all the submerged lands underlying its navigable waters, plus those 3 miles seaward from the coastline, in order to put Alaska on the same equal footing with the rest of the States. Section 6(e) dealt with an entirely different set of properties. What section 6(e) did was to transfer to the State a very specific and narrowly defined class of property, property that was used for the purposes or solely -- for the sole purpose of -- of fish and wildlife conservation under three designated statutes. Those are the State -- local-State fish and wildlife conservation statutes. Again, here it was -- it is undisputed that Glacier Bay is not included within the main clause. Therefore, the --
128orig +++$+++ 52630 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- problem, as -- you just said that -- that the main clause is very, very narrow, and we're told by the Government that no wildlife reservation would come within that main clause, so that there would be nothing to retain under the second clause.
128orig +++$+++ 52631 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Government is incorrect, Your Honor. We have identified two wildlife refuges, the Kenai moose range and the Kodiak bear refuge, that were otherwise encompassed by the main clause but saved by the proviso. And here's why the United States is correct on that. They argue in their brief that those properties were not included in the main clause because they were created under the Alaska Game Law of 1925 rather than the Alaska Game Law of 1943. In fact, Your Honors, those are the exact same statute. The '43 Alaska Game Law simply restated the 1925 law with certain amendments. What that means is that at statehood the Kenai moose range and the Kodiak bear refuge were, in fact, being used for the purposes under the Alaska Game Law of '43, which was the then-existing version. These refuges were created in 1941 prior to the restatement and amendment of the statute. So those are two properties. And -- and actually the legislative history -- we don't think the Court needs to go to the legislative history because the statute is plain and also because there's a clear statement rule. But the legislative history does indicate that Congress was specifically concerned about those two very large refuges. The Kenai and the Kodiak together comprise an area that is approximately the same size as the State of Connecticut. And Congress' concern or, more specifically, the concern of the Fish and Wildlife Service was that Alaska might not be able adequately to manage those properties. But there was no such concern expressed with the monument that's at issue here because it was never going to be transferred to the State under the main clause.
128orig +++$+++ 52632 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Why -- why shouldn't we look to the tests set out in the Idaho case here?
128orig +++$+++ 52633 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We are advocating the tests set out in the Idaho case, Your Honor. That test is a two-pronged test.
128orig +++$+++ 52634 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
128orig +++$+++ 52635 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ First, you have to look and see if there is a --
128orig +++$+++ 52636 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Whether Congress has notice of the inclusion of the lands and a Federal reservation, which it certainly did for Glacier, did it not?
128orig +++$+++ 52637 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's -- that's relevant to the first prong, Your Honor. The second prong --
128orig +++$+++ 52638 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And second, whether the transfer to the State would undermine the purpose of that reservation. Should we look to that?
128orig +++$+++ 52639 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If the Court were examining the -- the first prong, Your Honor, I think those factors might be relevant. Here, though, the test is set out in not only the Idaho case but also the Alaska case, and that is that there has to be an explicit action by Congress. And Idaho applies that. Idaho looked very carefully for some action by Congress ratifying the reservation in that case. Here, we need an action by Congress. The United States has identified what they contend is the action of Congress, that is, the proviso to section 6(e) of the Alaska Statehood Act. That proviso, though, just does not cover these lands.
128orig +++$+++ 52640 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Why do you say explicit? I -- I thought it said you have to make it plain, which really might matter.
128orig +++$+++ 52641 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In --
128orig +++$+++ 52642 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What it says -- the language I think is -- or definitely declared or otherwise made very plain.
128orig +++$+++ 52643 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. In the --
128orig +++$+++ 52644 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Is that right? There's nothing that says explicit. Right?
128orig +++$+++ 52645 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Your Honor, in the Alaska case -- and here I refer the Court to page 44 of the 1997 Alaska case. There the Court said that Congress must, quote, explicitly recognize or that Congress had explicitly recognized the resignation in that case. So the -- the Court --
128orig +++$+++ 52646 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But doesn't that simply mean that if it explicitly recognizes, it has made it plain.
128orig +++$+++ 52647 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
128orig +++$+++ 52648 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it doesn't mean that it must be explicit in every case. Isn't that correct?
128orig +++$+++ 52649 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, I -- I think explicit --
128orig +++$+++ 52650 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You don't have to be explicit to make it plain. It's a great way to do it, but that's -- it's not the only way.
128orig +++$+++ 52651 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It has to be definitely -- Justice Breyer, you're correct. It has to be --
128orig +++$+++ 52652 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ All right.
128orig +++$+++ 52653 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- definitely clear or otherwise made plain. Yes.
128orig +++$+++ 52654 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If I'm correct, then -- if I'm correct, then I guess the main argument I thought is here we have a national park and we want to keep the national parks as the United States, which you'd expect. It's a national park. And of course, they want to keep the whole thing. I mean, it's obvious. You don't have to write everything that's obvious. They no more want to give all the water in the park to Alaska than they'd want to give the gamekeeper's part to Alaska. A house, or maybe there's a swimming pool somewhere they don't mention either, but it's just obvious that unless there's something very special about the water, that the water in the park is part of the park.
128orig +++$+++ 52655 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there is something special about the water, Your Honor, and that's what the Court has recognized. The water is a State -- an essential attribute of State sovereignty, and just to --
128orig +++$+++ 52656 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I understand that. But I mean, it's like saying we're keeping Yellowstone, but we're giving you the geysers. I mean, that's water too. It's even underground water. But I mean, what the argument I think is -- would be is this like that, and the argument that it is like that is that, well, of course, you need this water in order to study the glaciers because there are forests that go down to the edge, because the flora and fauna can't be protected without it. And so though it isn't as strong a case as the geysers in Yellowstone, it's good enough. Now, what's your reply?
128orig +++$+++ 52657 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ First of all, the geysers are not included because we're talking about navigable --
128orig +++$+++ 52658 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I understand that. I'm using a funny example to --
128orig +++$+++ 52659 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. Navigable waters. (Laughter.)
128orig +++$+++ 52660 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But let me -- let me just assure the Court. There is nothing at all unusual about State-owned submerged lands within national monuments. The reason is simple. The Antiquities Act, which allows the President to designate national monuments, was enacted in 1906. At that time there were 45 States already in the Union. Therefore, any national monument created in those 45 States would necessarily have included State-owned submerged lands unless there had been some conveyance. And let -- let me give Your Honors a -- a concrete example. In the 1978 California decision decided by this Court, the Court recognized that the Channel Islands National Monument, which is an offshore national monument off the coast of California, included State-owned submerged lands because even though the reservation order was asserted to have included those lands, there was no congressional statement of an intent to defeat the State's title. Another --
128orig +++$+++ 52661 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Like in Yellowstone. There is a river I think. Who owns that?
128orig +++$+++ 52662 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, Yellowstone was created before the State of Wyoming and --
128orig +++$+++ 52663 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. But I mean, does the State or the Feds own the -- the river that goes through it?
128orig +++$+++ 52664 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ One would need to examine the particular reservations and statutes there.
128orig +++$+++ 52665 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What about in Yosemite? I think there's a river down there too. Is the river in Yosemite owned by California or by the -- the Feds?
128orig +++$+++ 52666 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm not familiar with that, but I will give you an example that I am familiar with.
128orig +++$+++ 52667 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Before you do that, Mr. Franklin, is -- is the rule that -- that we're operating under that Congress had to have made it clear --
128orig +++$+++ 52668 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
128orig +++$+++ 52669 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- that it reserved, or is the rule that it is clear that Congress ought to have reserved it?
128orig +++$+++ 52670 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. It's the former rule, Your Honor.
128orig +++$+++ 52671 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's the former.
128orig +++$+++ 52672 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
128orig +++$+++ 52673 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So the mere fact that it doesn't make any sense not to have reserved it does not make it clear that Congress reserved it, does it?
128orig +++$+++ 52674 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Absolutely, Your Honor.
128orig +++$+++ 52675 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right, but normally you assume, I guess, that Congress does what is -- tries to avoid things that are ridiculous. So if they say keep the park, I guess the question would be is that included. I mean --
128orig +++$+++ 52676 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It's not --
128orig +++$+++ 52677 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- can you read it this way? I -- I think it would be relevant, wouldn't it?
128orig +++$+++ 52678 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, first of all, this is not the ordinary -- in this case we presumed the -- the opposite. In fact, there's a strong presumption. But let me give you the other example that I was going to refer to you.
128orig +++$+++ 52679 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
128orig +++$+++ 52680 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There's something called the California Coastal National Monument. That extends the entire length of California and goes out 12 miles to sea. In that monument, the -- the lands, the submerged lands, are both State-owned and Federal-owned, and they are managed cooperatively. And that's what we are seeking to do here. And importantly, the fact --
128orig +++$+++ 52681 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Mr. Franklin, are -- are these submerged lands covered by navigable waters?
128orig +++$+++ 52682 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
128orig +++$+++ 52683 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What is it that the Government could do, if they owned the submerged lands, by way of protecting wildlife and doing all the good stuff they want to do, that they cannot do simply by -- by reason of -- of having jurisdiction over the navigable waters?
128orig +++$+++ 52684 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are a few things, presumably very localized activities that the State would have the exclusive authority in. Importantly though, the Federal Government, even though the State owns title here, will retain all of its constitutional authority under the Interstate Commerce Clause to regulate activities that affect interstate commerce that --
128orig +++$+++ 52685 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but just as a practical matter, tell us what you're arguing about. What does Alaska think it can do if it prevails in the Glacier Monument area by virtue of prevailing, as a practical matter?
128orig +++$+++ 52686 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As -- as a practical matter, there are issues relating to local subsistence fishing that are important to the State. There are issues relating to local uses of the bay. But more importantly --
128orig +++$+++ 52687 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, could -- could you be concrete? I mean, there -- I don't know what you mean. What are the issues? Can you give me an explicit example?
128orig +++$+++ 52688 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, one explicit example is I think the State would prefer to have more local subsistence fishing in the bay. And the Court -- to -- to move out a bit, the --
128orig +++$+++ 52689 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ So the State would permit more fishing than the U.S. would allow --
128orig +++$+++ 52690 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think --
128orig +++$+++ 52691 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- as a practical matter.
128orig +++$+++ 52692 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ As a practical matter. And -- and there -- there --
128orig +++$+++ 52693 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But couldn't Congress forbid that under -- by reason of its control of the navigable waters --
128orig +++$+++ 52694 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, if --
128orig +++$+++ 52695 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- if it really wanted to?
128orig +++$+++ 52696 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ If Congress really wanted to, Congress could -- could affect activities relating to interstate commerce. But importantly, what Alaska seeks here really is a seat at the table. Right now Alaska has no say over anything that happens in its navigable waters which are its sovereign State lands. What it seeks really is to have its views being considered. Right now -- and I'll give you a concrete example that goes to the enclaves that are issue in the -- in the next count that I'll discuss. For some time cruise ships were going out into the middle of these enclaves and dumping their untreated sewage because that was outside -- or asserted by the Government to be outside the scope of Alaska's pollution laws and not within the scope of Federal laws. That was fixed, but it took an act of Congress to do that. There had to be an act of Congress to prohibit those cruise ships from dumping their sludge out in these, what they used to call, donut holes. Alaska finds it unacceptable to have to go petition Congress every time something comes up on its navigable waters that it believes ought to be regulated or dealt with. Now, if Congress decides to preempt the State under its interstate commerce power, it has the right to do that. I think we also need to keep in mind what waters we're talking about. This is southeast Alaska. The waters of southeast Alaska quite literally define the region. They are central to the economy, the history, the society, and the culture of all the Alaskans who live there and who travel there. Just to take an example, there are still today very few roads anywhere in southeast Alaska, and the -- the towns and the cities like the -- the State capital of Juneau historically were accessible only by the water. This is an area -- the water in particular is an area that is of great importance to Alaska. And they are seeking to confirm that that area does belong to Alaska. And I think we have set forth in quite detail why --
128orig +++$+++ 52697 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, there -- there are big differences between the -- the analysis concerning the bays that you assert and Glacier Monument. I think they're quite different.
128orig +++$+++ 52698 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the -- the tests are different. The Glacier Bay test involves -- needs to have an explicit reservation -- explicit ratification by Congress of a reservation and --
128orig +++$+++ 52699 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ You're lumping them all together, but I think the tests are quite different.
128orig +++$+++ 52700 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The tests are different. What I was trying to explain is, in answer to Your Honor's question, why this matters to Alaska. It matters quite a deal.
128orig +++$+++ 52701 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But in -- in respect to Glacier Bay --
128orig +++$+++ 52702 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes.
128orig +++$+++ 52703 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- I -- I mean, is the only -- you said, for example -- is the only dispute about the use of the water that's in the middle of the Glacier Bay park whether there should be more or less fishing, or are there other things that Alaska wants to do with that water in the park that they can't do if the United States owns it?
128orig +++$+++ 52704 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ There are two issues. I think it's fishing and also to allow more local people to visit the area that would otherwise be prohibited by the Park Service. There was -- but just to assure Your Honors --
128orig +++$+++ 52705 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ How could they do that? You mean they would go into a boat in the middle of the water there, but they couldn't get off the boat?
128orig +++$+++ 52706 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's normally what -- what people do is they just visit the --
128orig +++$+++ 52707 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I see.
128orig +++$+++ 52708 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ -- by boats. But to assure Your Honor, there -- for example, there are no mineral interests here anywhere in the picture.
128orig +++$+++ 52709 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ All right. So if -- if the normal way of visiting the park is to go into a boat and to go up along the waterway and to look at the glaciers on the shore, then it surely is odd that the United States intended to give that waterway to Alaska, for under those circumstances, there would be nothing left of the park. I mean, it would be like -- you see, if it's essential to it.
128orig +++$+++ 52710 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, that's not true, Your Honor. 80 percent of the park, even if one assumes it included the submerged lands, is uplands. But it's no more unusual --
128orig +++$+++ 52711 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. I understand that, but I mean, it's the way of visiting the park.
128orig +++$+++ 52712 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, but I just mentioned, for example, the two monuments in California. The Channel Islands National Monument this Court held included the -- the submerged lands were State-owned. There's no other way to get to the Channel Islands Monument but to traverse State-owned submerged lands. In fact, I think there are few national parks in this country you can't get to without going across State lands. I think there's another important point here and that is the Property Clause of the Constitution would also allow the Federal Government to regulate activities on lands that abut national parks to the extent that they might affect park activities. But here what we need is an expressed statement by Congress ratifying the purported reservation of the bay. Without that, Your Honors -- and the -- the precedents are clear. Without that, the presumption is -- in fact, the strong presumption is -- that these are State-owned lands. And again, there is absolutely nothing unusual. That is part of our Federal system. It's the way that these monument properties have been managed since 1906 when the President first got the authority. It's the way that Glacier Bay will continue to be managed. We expect, we intend to work cooperatively with the Federal Government to resolve any issues that might remain. What we're seeking here, again, is a seat at the table. We just are seeking to have Alaska's views dealt with because they are the owner.
128orig +++$+++ 52713 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ In the -- in the '97 case, was the area at issue within the first part of 6(e)? Because this --
128orig +++$+++ 52714 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes. The -- the Court expressly stated that it was at pages 60 to 61, and that was in the absence of any contrary argument.
128orig +++$+++ 52715 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It -- it made an assumption.
128orig +++$+++ 52716 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ The Court made an assumption, but in fact --
128orig +++$+++ 52717 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But was it in fact?
128orig +++$+++ 52718 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think there would have been a substantial -- had that -- had that issue been litigated, there would have been a substantial argument that it was not within the main clause. But again, there was no argument on that point before the Court. The Court at pages 60 to 61 expressly stated -- again, it was an assumption, but the Court expressly stated that the lands were within the main clause. Apparently the Court was considering the fact that the application for ANWR did, in fact, reference the purposes that were set forth in the main clause, the Alaska Game Law. The important point of that case for this case, though, Your Honors, is that the Court embraced the construction of section 6(e) that we are advocating here, namely that the proviso exempts and saves for the Federal Government a subset of the properties that would otherwise have been transferred to the State under the main clause. There simply was no need for Congress to have expressed an intent --
128orig +++$+++ 52719 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I thought we had left that open. I thought we --
128orig +++$+++ 52720 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I think what I said is that the Court embraced that position, and it was actually an essential attribute of the -- essential premise for the Court's holding. At 60 to 61 and again at page 48 of the -- the decision, what the Court made clear is it was concerned that unless the lands were saved by the proviso, all of them, the submerged lands and the uplands, would have passed to Alaska under the main clause, and that was one of the reasons the Court, I think, held that it was covered by the proviso. No such concern is present here. I'd like at this point briefly to turn, if I might, to the count I, which is the historic waters count. There the United States asserts that at statehood the waters of southeast Alaska were riddled with isolated enclaves of international high seas that were wholly surrounded by U.S. territorial waters. The historical record, though, belies that contention. At least from 1903 until 1971, the United States took what this Court has described in the Mississippi Sound case, the Alabama and Mississippi Boundary Case, as the publicly stated policy that the waters of the archipelago were inland and that the political boundary ran along the outside edge. Thereafter, the United States took -- consistently based a discriminatory enforcement regime, fisheries enforcement, on that position. What I mean by discriminatory is that the United States allowed U.S. fishing but prohibited foreign fishing in that area.
128orig +++$+++ 52721 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, the argument on the other side, as I understand it, is that the -- the assertion of authority to regulate fishing really is -- is relevant. It has no necessary implication for the historic waters doctrine. What -- what is your answer to that?
128orig +++$+++ 52722 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ That's the assertion. My answer is that the Court announced to the contrary in the 1975 decision, the Cook Inlet case, there at page 201 and 202, and this is quoted at page 28 of the blue brief. What the Court said there is it examined an incident in which a Japanese fishing vessel had been caught in the general area, and the Court said -- and I quote -- that incident deserves scrutiny because the seizure of a foreign vessel more than 3 miles from shore manifests an assertion of sovereignty to exclude foreign vessels altogether and, quote, must be viewed as an exercise of authority over the waters in question.
128orig +++$+++ 52723 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ What -- what page was that?
128orig +++$+++ 52724 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ I'm sorry. That's 201 to 202 -- 201 and 202 of the Cook Inlet case, and that's at 28 of the blue brief. What the law was at statehood is that the United States had no authority, after 3 miles out, to enforce discriminatory fishing regulations against foreign vessels. Now, importantly there's a caveat here, and that is that the law has changed. The law has changed since 1971. Beginning in 1976, the United States asserted a 200-mile -- what's known as an exclusive economic zone that allows the United States to enforce discriminatory fishing, and in 1982 international law embraced that. But -- and we have quoted a UN study. In fact, the UN study that we have quoted -- and that is noted at page 29 of the blue brief. That is the study that's called the Juridical Regime Study. It's the study that this Court itself, in all of its historic waters cases, has used as the authoritative statement of the law. That study quite clearly states that if a -- if a country enforced discriminatory fishing rules against foreign vessels outside -- that that manifests an assertion of an historic inland waters claim. And what we have here --
128orig +++$+++ 52725 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ On -- on this point, it seems to me there -- unlike the first point you were discussing where I think the Federal Government can work its will anyway, on this point there is really a significant Federal interest involved. That is to say, if the United States takes the position that these are, indeed, inland waters, it's going to have to acknowledge similar rights in foreign countries with similar archipelagos.
128orig +++$+++ 52726 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ No. Your Honor, they assert that, but they don't provide any specific examples. And the reason they can't provide a specific example of any instance abroad where it would affect their position is that each historic waters inquiry is decided on its own facts. The fact that something is an archipelago does not render it historic waters.
128orig +++$+++ 52727 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But -- but you say a determinative fact, a conclusive fact is simply -- is simply enforcing discriminatory fishing regulations.
128orig +++$+++ 52728 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ It is a claim to the -- to the waters, which was made in 1903, accompanied with discriminatory fishing enforcement, accompanied with other statements in this case, including the California brief to this Court. There has to be an -- excuse me -- an examination of all of the facts and circumstances before one can conclude that waters are historic waters. These ones are. Other waters would not be. The United States has not identified any waters abroad that have precisely these constellation of facts. So its -- its position is basically: we say it, therefore it must be so. I --
128orig +++$+++ 52729 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But it's not the United States that will be making the judgment about what areas are controlled. It would be the country abroad. And I -- I think the argument was, what the United States does other nations will copy.
128orig +++$+++ 52730 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right.
128orig +++$+++ 52731 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ And they will decide what looks like the Alaska --
128orig +++$+++ 52732 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Right. What the United States does, Your Honor, is follow the well-settled international law on historic bays -- historic waters. Those are set forth in the convention. Each state will have the same authority where its facts and circumstances dictate it. If there has been a continuous claim asserted by a nation with the acquiescence of foreign nations, then it will qualify as historic waters. But it has to be done based on a -- an examination of the particular facts of the case. And one thing else -- one thing other that is worth noting, if you have an archipelago like this, a nation can always close it off using article 4 straight baselines. That is permitted under the convention. The U.S. has decided not to do that, but other states are fully able to do that. I think that if the United States is going to be arguing that there is some international precedent here that's going to hurt it adversely, it needs to identify a particular body water abroad that it believes this case is going to affect.
128orig +++$+++ 52733 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Why should it make that suggestion? It would certainly not be in the interest of the United States.
128orig +++$+++ 52734 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it -- it needs to explain more specifically then, other than just stating we think it might affect our position. The -- the facts and circumstances -- the Court, for example, applied the historic bay question in Mississippi Sound, in the Mississippi Sound case. I am aware of no instance in which that precedent was ever used adversely and the United States has not identified any -- any instance. But more importantly, what this Court did in the Mississippi Sound case is it looked at the evidence and it said is this a historic bay or is it not. The Court concluded that it was and that was the inquiry that the Court follows. At this point, I'd like to reserve the remaining time for rebuttal.
128orig +++$+++ 52735 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Yes, Mr. Franklin. Mr. Minear.
128orig +++$+++ 52737 +++$+++ FALSE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Justice Stevens, and may it please the Court: I would like to begin with the focal point of Alaska's argument, namely Glacier Bay National Park. Alaska's core contention is that section 6(e) of the statehood act does not provide an adequate showing that the United States intended to retain the submerged lands in Glacier Bay. For this --
128orig +++$+++ 52738 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Could -- before you go into that, could you tell me how 6(e) begins?
128orig +++$+++ 52739 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. In fact, I think it's very helpful. It's listed at page 7a --
128orig +++$+++ 52740 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, (e) --
128orig +++$+++ 52741 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of our -- of the gray brief.
128orig +++$+++ 52742 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but the -- well -- well, the -- the introduction to it is -- is not listed, is it? I mean --
128orig +++$+++ 52743 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That may -- that may be so.
128orig +++$+++ 52744 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, it's incomplete. It -- it just says all real and -- what about all real and personal property? Is there an intro that says there is hereby -- there is hereby granted to the United -- to Alaska?
128orig +++$+++ 52745 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, 6(e) I think begins stating that this -- these are exceptions to section 5 which is the retention -- the general retention provision of the United -- for United States lands. But if we look at 6(e) itself, it's --
128orig +++$+++ 52746 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, you say they're exceptions. How -- how are the exceptions introduced? I mean, it's incomplete to just read (e) that says all -- what about all real and personal property of the United States? There has to be some introductory language. What is it?
128orig +++$+++ 52747 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. Actually there doesn't, Your Honor, because if you go on, it says all real and personal property -- then you skip down, about halfway down -- shall be transferred and conveyed to the State of Alaska by the appropriate Federal agency. So it is -- so this is complete in terms of --
128orig +++$+++ 52748 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Okay. Okay. You're right.
128orig +++$+++ 52749 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But if I could walk you through those provisions because I think they're quite important. The first provision says, as you say, all real and personal property which is specifically used for the sole purpose of conservation and protection of wildlife shall be transferred to the United States.
128orig +++$+++ 52750 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Right.
128orig +++$+++ 52751 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's followed by another provision here.
128orig +++$+++ 52752 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To -- to Alaska.
128orig +++$+++ 52753 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ To -- to Alaska. Excuse me. And it's followed by another proviso which says that the United States will continue to control fish and game matters in Alaska until the Secretary of Interior has certified that Alaska is ready to do so. Clearly that proviso is not a subset --
128orig +++$+++ 52754 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Minear, before you get too far, I also would like to ask a preliminary question that was raised by Justice O'Connor before. Do you agree that section 5 itself, the second part of it that says the United States retains title to its own property, that the response to that is adequately provided in the Submerged Lands Act referred to in subparagraph (m)?
128orig +++$+++ 52755 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, I don't. I don't believe -- let me frame the -- your -- your question, if I may, for you. Section 5 indicates the United States would retain all of the lands that it presently holds. Section 6(m) then makes the Submerged Lands Act applicable to the -- to the -- to Alaska. In doing so, it recognizes that there are some lands the United States would continue to retain, provided it meets the requirements of the Submerged Lands Act. The particular exception we're concerned about here is the expressly retained exception, in other words, if lands are retained by the United States. This Court said in the Arctic Coast case that that provision adopts the general law that applied before the Submerged Lands Act, that it had to be made plain that the United States would be holding onto these lands. It doesn't require an express statement. It simply requires that it be made plain. Now, our view is that these lands would be retained by the United States, quite apart from 6 -- the 6(e) exception we're arguing about here on summary judgment. And if you denied our motion for summary judgment, we'd go back and talk about the other exceptions that are applicable. But in this case we're simply focusing on 6(e) and we're focusing on that because the Court's Arctic Coast decision made clear that 6(e) -- and I quote -- reflects the very clear intent to retain title, unquote, to submerged lands, quote, so long as those submerged lands were among those set apart as refuges or wildlife -- or reservations for the protection of wildlife.
128orig +++$+++ 52756 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, we didn't have this issue before us. Let -- let me --
128orig +++$+++ 52757 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, we did.
128orig +++$+++ 52758 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- let me -- why don't you go back to your argument? You said that the first proviso on its face is simply not a subset of the first part of (e).
128orig +++$+++ 52759 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. It's an example how provisos do not need to be --
128orig +++$+++ 52760 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But that's not the proviso at issue here.
128orig +++$+++ 52761 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
128orig +++$+++ 52762 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The proviso at issue here is the second proviso which begins provided that such transfer shall not include lands. Such transfer. Now, this is -- the word such refers you back to something. What -- what possible transfer could it mean except the end of the introduction, which says shall be transferred and conveyed to the State of Alaska?
128orig +++$+++ 52763 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
128orig +++$+++ 52764 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I mean, anybody reading that would -- would think that proviso refers to that transfer or at least it is not clear that it provides to -- that it applies to every transfer in -- in the whole act.
128orig +++$+++ 52765 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I disagree with you, Justice Scalia, for these reasons. First of all, the such transfer simply tells you what's not included. That language tells you -- this is outside. It doesn't mean that whatever follows necessarily was within the main clause. What Congress was doing here, by making clear that these lands were not transferred --
128orig +++$+++ 52766 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What does the such refer to?
128orig +++$+++ 52767 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It does refer to the transfer before. But what follows here, refuges and reservations for the protection of wildlife, they do not fit within that -- that main clause. It's obvious they don't because the only things that fit within the main clause are those lands and real property specifically used for the sole purpose of conservation and protection of wildlife. What we're talking about here -- wildlife reservations are multiple purpose lands. They're not used solely for -- for the purpose of conservation. The purpose of the first provision here was to transfer vehicles, fish hatcheries, other equipment that the State would need to enforce Alaska game laws. That was the point of -- of that first provision. But Secretary Chapman who drafted this made clear in the legislative history that what he was doing was drawing a line between those -- those facilities and equipment that are used by a State in its traditional game management and drawing a contrast with the matters that would be retained by the United States.
128orig +++$+++ 52768 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Where is the language that says that the submerged land that fits the proviso is retained by the United States?
128orig +++$+++ 52769 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do not need --
128orig +++$+++ 52770 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What the proviso says is just what Justice Scalia said.
128orig +++$+++ 52771 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We do not need express language that expresses --
128orig +++$+++ 52772 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No, no, but where is the implication in that?
128orig +++$+++ 52773 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The implication is that we are retaining all of the reservation. And this is what the Court said in the Arctic Coast decision. It saw that this was --
128orig +++$+++ 52774 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's -- that's -- it -- I mean, in -- in -- I take it in the Alaska case we were considering a transfer that did fall within the main sentence of (e).
128orig +++$+++ 52775 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Justice Breyer, neither party made that argument. This issue came up in a letter that was written after. The -- the language --
128orig +++$+++ 52776 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Were we or weren't we?
128orig +++$+++ 52777 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You were not considering that.
128orig +++$+++ 52778 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We weren't.
128orig +++$+++ 52779 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That -- that was -- simply neither party suggested that ANWR fell within the first provision. And it doesn't. It's clear that it doesn't. It was not land that was specifically used solely for conservation of wildlife under these three listed statutes. The ANWR reservation at that time was set apart. It was BLM land. It was also used for mining and other activities. Likewise, the other matters --
128orig +++$+++ 52780 +++$+++ TRUE +++$+++ JUSTICE GINSBURG +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But the Court did assume -- the Court did assume that.
128orig +++$+++ 52781 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
128orig +++$+++ 52782 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It made that assumption with no briefing, but it did that with regard to the second issue that was presented there. The issue that people were fighting about in the Arctic Coast decision was was this land properly set apart or not for purposes of the proviso. And that's where this discussion takes place.
128orig +++$+++ 52783 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right. Then --
128orig +++$+++ 52784 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's an afterthought that simply reinforces.
128orig +++$+++ 52785 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right. Then at best Alaska is a neutral. Because we didn't think it, we're operating as a mistake. It's a neutral. Okay. Now, what's bothering me about the case is just what Justice Scalia said, that -- that why I -- if I sell you all my clothing and then I put, but not my camping gear, I mean, I can absolutely see you don't get my camping clothing, but you want to say that's a reservation of mess kits from some other transfer? I mean, it has nothing to do with mess kits.
128orig +++$+++ 52786 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, but that's -- it's clear that what this is -- this is more along the lines if someone said that I will sell you my house, provided that transfer shall not include the detached garage.
128orig +++$+++ 52787 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Fine, and then it doesn't go in that.
128orig +++$+++ 52788 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In that case --
128orig +++$+++ 52789 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But it doesn't mean that the next --
128orig +++$+++ 52790 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, but it was not a part of the house.
128orig +++$+++ 52791 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
128orig +++$+++ 52792 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ You know, that's -- it's just providing clarification, just that one of the purposes of the proviso is to provide clarification.
128orig +++$+++ 52793 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ This is an abundance of caution?
128orig +++$+++ 52794 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ In other -- that is exactly right. And we can tell that from --
128orig +++$+++ 52795 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right. If it's an abundance of caution, where's the other language that almost reserves it so we need the caution?
128orig +++$+++ 52796 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That would be section 5. It indicates the general retention for lands of this sort.
128orig +++$+++ 52797 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But 5 is subject to the Submerged Lands Act and the Submerged Lands Act brings you back to the reservation has to be explicit. And then -- see, that's --
128orig +++$+++ 52798 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Justice Breyer, again, if I can just complete the point --
128orig +++$+++ 52799 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's why I was talking about Yellowstone.
128orig +++$+++ 52800 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
128orig +++$+++ 52801 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I was looking for something that would be obvious that they wouldn't have meant to transfer. He comes back and says, well, very often States do control the water.
128orig +++$+++ 52802 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, I just need to make a point. I think it's very important for you to understand this point. First of all, that at page 57 of the Arctic Coast decision, this Court was clearly reading this language, the 6(e) proviso, as sufficient to provide a clear indication of transfer of title, and in doing so, it was recognizing what is clear in the proviso itself, that these particular items that are discussed there are not a part of the main clause and cannot be. And a good example of that is the third thing that's being transferred, facilities that are utilized in connection with general research activities related to fisheries and wildlife. Now, that is not going to be something that's specifically used for the sole purpose of conservation and protection of wildlife. It's the antithesis of that. It makes quite clear that our construction is correct. The subset theory just doesn't work because the items that are here are not things that fit within the main clause. What Congress was doing here was drawing a very clear line --
128orig +++$+++ 52803 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But why -- why doesn't (m) supersede that argument anyway? Let's -- can't we say that, well, you may be right so far as the second clause of (e) is concerned, but you still have to deal with (m)?
128orig +++$+++ 52804 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Then you have to explain what happened in the Arctic Coast case, why we were able to retain the ANWR lands which did not fall within the main provision. And that is because Congress was making -- because this Court concluded that Congress was making clear that wildlife lands are very important and they wanted to make absolutely clear that those lands would not be transferred. And even a provision that could be misconstrued, as I'm afraid this Court did in -- in Arctic Coast -- could be misconstrued to contain some of these lands, we need to make adequate assurance that -- that the courts that read this realize a clear division is being made. We are retaining these wildlife lands. That's --
128orig +++$+++ 52805 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Minear, I'm -- I'm not sure I agree with you that -- that that language, facilities used in connection with general research activities relating to fisheries or wildlife, is not a subpart of the earlier -- of the earlier grant, namely property used for the sole purpose of conservation and protection of fisheries and wildlife. Surely one -- one can readily regard general research activities relating to fisheries or wildlife to be part of the activity of conserving and protecting fisheries and wildlife.
128orig +++$+++ 52806 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But we're talking about a facility here. So a facility that might conduct some -- some research tangentially related to wildlife is not a facility that's used for the sole -- specifically used for the sole purpose of conservation and wildlife. There's a clear difference here. These two -- these two sets do not overlap, and it's even more so with regard to wildlife refuges. Wildlife refuges and wildlife reservations are used for multiple purposes. At the time of statehood, the -- the regulations in place, the fisheries regulations and wildlife regulations, made clear that permits could be issued for purposes apart from wildlife conservation. And this Court's own decision in Udall v. Tallman recognized that one of the -- the refuges that Alaska cites as being included in the main clause was being used for oil and gas purposes. It was not being used solely for the purposes -- specifically used solely for the purposes of conservation.
128orig +++$+++ 52807 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Minear, you know, I -- I am just overwhelmed by the reality that this is a terrible mess of a statute. I can't figure out what it means.
128orig +++$+++ 52808 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor --
128orig +++$+++ 52809 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And -- and it seems to me that's exactly why we have a clear statement rule.
128orig +++$+++ 52810 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor --
128orig +++$+++ 52811 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are arguments here, there are arguments there, but it -- it does not dawn upon me that -- that anything is clear about this at all.
128orig +++$+++ 52812 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, this -- we believe the statute has been clear for 50 years. That's why these issues have only arisen recently with regard to Glacier Bay National Park.
128orig +++$+++ 52813 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Minear, what do you say are the practical consequences from the Federal Government's perspective of going -- of disagreeing with the U.S. position? What harm is done? Can the U.S. protect itself in any event under other clauses?
128orig +++$+++ 52814 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We agree that the United States has the regulatory authority to protect -- to limit vessel entries and protect commercial fishing, but that's not what our concern is. Our concern is with the actual use of the submerged lands. This is a laboratory. This is a laboratory for scientific research, and we occupy and use the submerged lands for that purpose. That includes such things as withdrawing cores of materials so we can analyze its historic features. We've installed a 5-mile cable with a hydrophone on the -- on the submerged lands so we can listen to vehicle traffic and determine if the -- the volume is sufficient to interfere with the whales that migrate through there.
128orig +++$+++ 52815 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Don't you do that on -- on dry land in some States?
128orig +++$+++ 52816 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, in order to hear vehicle traffic --
128orig +++$+++ 52817 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Doesn't your authority under the Commerce Clause or under -- under -- over navigable waters allow you to do that kind of stuff?
128orig +++$+++ 52818 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Your Honor, we think that -- that Alaska would have a realistic argument that we cannot withdraw materials from the submerged land which we use and study. And in fact, I would point out that the park superintendent's affidavit --
128orig +++$+++ 52819 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Are they likely to do that?
128orig +++$+++ 52820 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What?
128orig +++$+++ 52821 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Are they likely to do that? Is this a real problem?
128orig +++$+++ 52822 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ There are 900 papers, scientific papers, that are cited in the affidavit of the park superintendent. This is exhibit number 8 on count IV. And of those describing the type of research we do in Glacier Bay National Park --
128orig +++$+++ 52823 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, I thought --
128orig +++$+++ 52824 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- scores and perhaps hundreds of those involve submerged lands.
128orig +++$+++ 52825 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right. Given what you're saying -- and I -- you're not accepting this I think, and I -- well, there is language in this act which maintains in the United States title to the park.
128orig +++$+++ 52826 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That is correct.
128orig +++$+++ 52827 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ All right. Now, I would have thought when you get title to the park, you mean the park, and by the park, you mean those essential parts of the park.
128orig +++$+++ 52828 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We --
128orig +++$+++ 52829 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And therefore, if you have a part of the park which is the only part of the park where people look at the park, and it's the only part of the park that brings them into the park, and it's the only part of the park where you do the research, et cetera, that's the park. Just as if I were to sell my house and I list the rooms and forget the kitchen, well, the kitchen is an essential part of the house.
128orig +++$+++ 52830 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ That's --
128orig +++$+++ 52831 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Now -- now, once I made that argument, he said that's a very clever argument, but really, there are all kinds of instances where States have reserved submerged land inside national parks and it's worked fine.
128orig +++$+++ 52832 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But those are instances --
128orig +++$+++ 52833 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ What's your response to all this?
128orig +++$+++ 52834 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The instances -- the examples they're giving are cases in which we've created those national monuments or parks after statehood. And in those cases, we cannot acquire those lands because they have already been transferred to the State at statehood.
128orig +++$+++ 52835 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It hasn't resulted in a -- in a disaster. That's the point that Justice Breyer is making.
128orig +++$+++ 52836 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But in this case --
128orig +++$+++ 52837 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It has not resulted in a disaster.
128orig +++$+++ 52838 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ But in this case, it is going to impede the -- the activities we have there. And a good example of this is in the amicus brief at page 25 where Alaska does not even assent to our authority to control fish and wildlife. The Alaska legislature has passed a statute in which it refuses to assent to our authority to control fish and wildlife within the park. This gives you some sense of the type of difficulties that we're going to encounter.
128orig +++$+++ 52839 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. --
128orig +++$+++ 52840 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And our chief concern --
128orig +++$+++ 52841 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Minear, may I ask you? At the time the statute was passed, was the national Government conducting these activities?
128orig +++$+++ 52842 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes, it was. It was created as a national monument. Now, in terms of what degree of activities, the record is not clear, but we're --
128orig +++$+++ 52843 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Maybe you were monitoring passages through to see whether the whales were going to be interfered with and doing that sort of thing. Were you taking core samples?
128orig +++$+++ 52844 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We were definitely studying the bed of the lake, and our -- our briefs below explain. We have an affidavit from our glaciologist which describes the type of research that was being done.
128orig +++$+++ 52845 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ So in -- in other words, you -- you're saying it is fair to say that at the time of the passage, this would have been on the congressional mind, going back to Justice Breyer's --
128orig +++$+++ 52846 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It -- it definitely would have. And also I want to point out that when we created the national monument, we also preserved such things as the interglacial forests. These are forests that are left behind as the glaciers retreat and go forward over these submerged lands. The glacial forests are in the submerged lands, and so they become a part of it. As these glaciers continue to retreat, it's likely that other glacial forests will be revealed, and those should remain a part of the park. That was part of the purpose, was to study those --
128orig +++$+++ 52847 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Should. Now, you're not -- how far are you prepared to go? You can't go more than your brief and your facts justify. Are you prepared to say that this water is an essential part of the park?
128orig +++$+++ 52848 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes.
128orig +++$+++ 52849 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes?
128orig +++$+++ 52850 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. Certainly --
128orig +++$+++ 52851 +++$+++ TRUE +++$+++ JUSTICE BREYER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Have you said that before this minute?
128orig +++$+++ 52852 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Not only have we said it, but the Park Service at statehood said that this is a water park when they were describing these lands and saying why they should be retained. They told Congress -- the -- the park superintendent or the -- the director of the Park Service said this is a water park that's mostly -- this is, after all, Glacier Bay National Park. And in that -- with that respect, I'd like to point out this --
128orig +++$+++ 52853 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Why did they keep the other 80 percent then?
128orig +++$+++ 52854 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Excuse me, Your Honor.
128orig +++$+++ 52855 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Why did they keep the other 80 percent?
128orig +++$+++ 52856 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, the --
128orig +++$+++ 52857 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ I gather only 20 percent of it is water.
128orig +++$+++ 52858 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ It's slightly more than 20 --
128orig +++$+++ 52859 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ They should have given away the rest.
128orig +++$+++ 52860 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ We haven't given away. We have all of these lands. The -- the uplands here are the glaciers and the mountains that are inaccessible except by the water. You cannot reach these areas. There are no roads in this park except for the park visitors center, and beyond that --
128orig +++$+++ 52861 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Then make it a water park. I mean, you want to say it's a -- it's a water-accessible park, fine.
128orig +++$+++ 52862 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Yes. But, Your Honor, the --
128orig +++$+++ 52863 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ 20 percent of the park is under water. Right?
128orig +++$+++ 52864 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ More than 20 percent. Roughly 25. I'd say close to 25 percent of the park is -- within the park boundaries is submerged lands. But there's another point I'd like to make with regard to the establishment of the park. This park was created under the Antiquities Act, and under the Antiquities Act, the President is given authority to create national monuments, but they cannot be disestablished except by act of Congress. Now, Congress could have disestablished this monument if it had meant to give up the land. It could have disestablished some part of it, and it chose not to do so. And yet, that's another indication that Congress was intending to retain these lands. Now, I would like to move on to the other two counts we have here, unless we have further questions about -- about Glacier Bay. But I -- I think one thing that I do -- one thought I want you -- to leave you with with regard to Glacier Bay is that these lands are essential to the park. They are understood to be essential at the time that the park was created. And the -- the line we're suggesting here is a very reasonable one with regard to this park. Those lands are -- continue to be used -- the submerged lands for scientific research that is vitally important. Now, I'd like to point out that the master also correctly rejected the claim that the archipelago straits are historic inland waters, and on that basis, Alaska failed to satisfy any part of the Court's three-part test. This Court specifically failed to show a continuous assertion of -- of sovereignty to exclude vessels that have -- that are visiting the park or passing through in innocent passage or to indicate any acquiescence of foreign nations. During the past 150-year period, neither Alaska nor the United States ever attempted to exclude a vessel based on -- merely on innocent passage. Rather, Alaska -- Alaska cannot point to a single incident in which we unambiguously did so. The only --
128orig +++$+++ 52865 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Alaska is arguing, as I understand it now, that the -- the exclusion for purposes of fisheries regulation has the same implication as a matter of international law, which is a point that you disagree on. What -- what is your response to their response to --
128orig +++$+++ 52866 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ The answer is in order to establish a historic inland water claim, you have to exclude a vessel based on this passing through in innocent passage. Fisheries is not -- engaging in fishing activity under the convention is not innocent passage. And so, therefore, an exclusion based on fisheries can never -- can never give rise to a claim of --
128orig +++$+++ 52867 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ And what's -- what's your best authority for that?
128orig +++$+++ 52868 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, our best authority is the convention itself. The convention makes clear under article 14 that fisheries is -- that fisheries activities are not innocent passage. Rather, innocent passage is merely transit through from one point to another. Moreover, the Marguerite incident that they describe involves a single incident; that is, it does not satisfy the continuity requirement that the inland -- the historic inland waters test requires. And finally, it also didn't satisfy the acquiescence test since the British Government protested the seizure of the ship. And finally on top of that, this vessel -- we don't know exactly where this vessel was at the time that it was seized. There continues to be a dispute and the master was unable to determine whether that -- the ship was in -- inside or outside the 3-mile limit. Now, I'd also like to speak briefly to the juridical -- juridical bay claim as well. This is a matter that Alaska did not touch upon, but I imagine it would address on rebuttal. The master correctly rejected Alaska's extraordinary claim that the Alexander Archipelago can be turned into two large -- large juridical bays. And basically it attempted to do so by establishing a headland on an island. Now, that does not suffice the purpose of the convention. The only way that it can establish a bay headland or -- or closing point is by showing that it's on the mainland. In order to establish that this is on the mainland, Alaska has to ignore four intervening bodies of water. And as the master recognized, these bodies of water are simply too substantial to ignore. In the case of these bodies of water, Keku Strait is 41 miles long, on average 4 and a half miles wide. It's -- simply those intervening waters cannot be ignored in order to establish that this is -- is part of the mainland. It's also separated by Wrangell Narrows, which is a 12-mile-long strait that is an important passage for international navigation. That too precludes it from being ignored and treated as dry land. The failure of those two assimilations by itself is sufficient to establish that -- that these -- that these juridical bays do not exist. And even if that were not enough, the master went on to say that this would not be a well-marked indentation, that even if you were willing to assimilate these lands, it's still the case that the bay itself would not be -- the supposed, imaginary bays that Alaska has created here would not be recognizable to a mariner who is passing by. For all those reasons, the juridical bays here are -- are simply not well founded, and the master was correct in rejecting them. So what we see --
128orig +++$+++ 52869 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Mr. Minear, could I go back to Glacier --
128orig +++$+++ 52870 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Certainly, Your Honor.
128orig +++$+++ 52871 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- Park again for a moment and ask why the Government decided to base its claim to the lands in Glacier Bay exclusively on that murky provision of 6(e) rather than to talk about the standards set out in the Idaho case?
128orig +++$+++ 52872 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, Your Honor --
128orig +++$+++ 52873 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Do you -- do you not rely on that standard --
128orig +++$+++ 52874 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Quite --
128orig +++$+++ 52875 +++$+++ TRUE +++$+++ JUSTICE O'CONNOR +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ -- of analysis?
128orig +++$+++ 52876 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Quite honestly we thought that under the Arctic Coast decision, the Court is required to create absolutely new -- no new law. It had already interpreted 6(e) and it was clear that section 6(e) applied to this case. We think the Idaho provisions provide another opportunity for us to establish it. It's quite clear that the purposes of the -- the lands here, the submerged lands, are so essential to the park that it's simply inconceivable that Congress would have intended for those lands to pass out of ownership. However, we relied on --
128orig +++$+++ 52877 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Would you -- would you tell us again why, if you do not prevail on this argument, you still go back before the -- the Special Master to show certain facts?
128orig +++$+++ 52878 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, first of all, Alaska has not moved for summary judgment. We moved for summary judgment on some of our theories. Other theories would require some factual development. One of the theories that we would -- we would go forward with is that these lands are occupied under a claim of right, and that's another exception under the Submerged Lands Act. In addition, we would renew the argument with regard to Antiquities Act, that once Congress takes an area and authorizes the President to set it aside under the Antiquities Act and provides that it cannot be disestablished except by act of Congress, we think that's a very clear indication of Congress' intent to retain those lands.
128orig +++$+++ 52879 +++$+++ TRUE +++$+++ JUSTICE KENNEDY +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Well, given the absence of a summary judgment, we wouldn't have to address that.
128orig +++$+++ 52880 +++$+++ TRUE +++$+++ MR. MINEAR +++$+++ NOT JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ No. You would not have -- we -- we believe the master adverted to this claim, but we do not think that he foreclosed it. But rather, I'd like to discuss briefly the relationship of Idaho and Alaska because I think it's important and worthwhile. We think that this case falls squarely within the Alaska Arctic Coast case, and in particular we relied on it primarily because it provides an actual textual basis for showing that the -- the United States retain those lands. We do not need to go further and show purpose, although we certainly can. We relied on the Alaska case because we think it provides a very clear example of why retention is -- is required in this case. The master agreed with us. He analyzed the Arctic Coast decision and he concluded that the -- the proviso here necessarily must be considered an independent retention clause. There's no other way to understand the Arctic Coast decision except on that basis. And we think that's the right interpretation, and we think if we -- if you focus on what the Court said on pages 56 to 57, it becomes quite clear. The statement that Alaska relies on to create its so-called subset test is an afterthought at the end of the opinion. It's a statement that's made in the Court's words to reinforce the conclusion it's already reached. It doesn't provide a basis for -- for departing from that. And in fact, as I hope I have showed to the Court, the subset test doesn't make any sense, that they're simply -- all of those lands that fall within the proviso are lands that would not fall within the main clause. The wildlife refuge is occupied for multiple purposes. It's -- the two wildlife refuges that they point to both the record shows were used for multiple purposes. They were not used solely for conservation purposes. And in addition, they were -- to the extent that those refuges adverted to any lands at all -- any statutes, they were referring to a 1925 statute, not -- not the 1943 statute. Furthermore, there are 24 other refuges that we believe that Congress intended to retain that Alaska has no answer for. One -- one of those refuges, in particular, the Semidi Islands, quite clearly describes within its boundaries submerged lands, reefs, and other areas. It clearly is being used for those purposes. We think the right interpretation of the proviso is clearly that it was meant to ensure, to provide the clarity that this Court needs to determine that Congress clearly did intend to retain these lands. That was the point that -- that this proviso, as Secretary Chapman himself indicated, and in fact, he stated in -- the excerpt appears in page -- on page 47, note 37 of our brief. He stated that these reservations -- the land and water would be reserved. He clearly was aware and told Congress that that was the purpose here, to reserve both land and water. Finally, I'd like to ask the Court to step back and look at the big picture here. The United States' position overall results in a very sensible division of submerged lands in this case. We have not contested Alaska's right to the vast majority of the submerged lands here that are encompassed in Tongass National Forest. Rather, we've identified two areas where the Federal Government interests are paramount. First of all, with regard to drawing international -- developing international principles to establish baselines, which creates these bays and -- and pockets, that's a necessary consequence of what our foreign policy requires. Secondly, where the United States has clearly reserved a unique treasure, namely Glacier Bay National Park. This park was set aside for the benefit of the entire Nation. We think that the Court should adopt the master's report in full. Thank you.
128orig +++$+++ 52881 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ RESPONDENT +++$+++ Thank you, Mr. Minear. Mr. Franklin, you have about 3 and a half minutes.
128orig +++$+++ 52883 +++$+++ FALSE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Your Honor. To get back to the Idaho case, we are, in fact, advocating the principles of that case. It is not sufficient that Congress be on notice of a reservation that might include submerged lands. Congress has to take some action to explicitly ratify that. That was what happened in the Idaho case, according to the Court. And the United States has identified one statute and one statute only that it asserts can -- ratifies the bay, and that's section 6(e), the proviso. We think the plain language to section (e) -- 6(e) is dispositive in this case. We are operating here under a clear statement rule. The presumption is, in fact, the strong presumption is, that if Congress does not expressly ratify the reservation, Congress is presumed not to have intended that the submerged lands -- title to submerged lands be defeated. There was -- the statute says such transfer shall not include. There simply was no need for Congress to have included -- to have specified that such transfer, the main clause transfer, shall not include submerged lands when they were not included -- or excuse me -- shall not include properties that were not included in the first place. That includes Glacier Bay.
128orig +++$+++ 52884 +++$+++ TRUE +++$+++ JUSTICE SCALIA +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Would -- would you respond to the -- to the argument that the Alaska Arctic Coast case decided that the proviso goes beyond subsection (e)?
128orig +++$+++ 52885 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, my -- my first response is even the master, who ruled -- who -- who decided against us, did not find that the Alaska case decided that, and indeed, it could not have because the Court at pages 60 and 61 expressly assumed that the lands would fall within the proviso. Therefore -- excuse me. The main clause. Therefore the Court did not hold and could not have held that lands that did not fall within the main clause were included by the proviso. It is important, though, to -- to note this, that even if the statute is ambiguous -- and we think that it is not -- Alaska still prevails here because a -- there is a clear statement rule and a clear statement rule cannot be satisfied by definition by an ambiguous statute.
128orig +++$+++ 52886 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ But the -- the argument is that it is clear because the reservation without the reservation of the waters would be crazy.
128orig +++$+++ 52887 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Well, it --
128orig +++$+++ 52888 +++$+++ TRUE +++$+++ JUSTICE SOUTER +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Why isn't -- I mean, what's -- what's the answer?
128orig +++$+++ 52889 +++$+++ TRUE +++$+++ MR. FRANKLIN +++$+++ NOT JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ We dispute that for the following reason, Your Honor, that -- that the -- the point of the monument was to study the glaciers and the effects of the glaciers as they recede on dry land. Title to the submerged lands was simply not necessary for that purpose. But I think their sky-is-falling argument really falls apart here. All that the counsel can point to is the idea is that they would like scientists to go scuba diving down there and to perhaps look at the bottom. There is absolutely no contention here that Alaska would -- would prevent scientists who want to study this -- these lands from doing that. We let scientists onto all of our properties, all of our submerged lands when they have a good reason for doing it. We hope to work cooperatively with the Federal Government on this. The -- the idea that Alaska is somehow going to be less receptive to scientific research here I think demeans our Federal structure. We have a Federal structure here under which sovereignty of submerged lands is given to the States because they are viewed as the ones principally affected by the activities that go on there. We are not planning on -- on preventing scientists from scuba diving down there. By the way, they did not at the time of the monument, Your Honor, do scuba diving because there -- there really wasn't any scuba diving going on. But to -- to move on -- I see my time is up.
128orig +++$+++ 52890 +++$+++ TRUE +++$+++ JUSTICE STEVENS +++$+++ JUSTICE +++$+++ NA +++$+++ PETITIONER +++$+++ Thank you, Mr. Franklin. The case is submitted.
